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Full text of "Reports of Sir George Croke, knight. Formerly one of the justices of the courts of Kings-bench, and common-pleas, of such select cases as were adjudged in the said courts [1582-1641]"

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REPORTS 

o F 

Sir GEORGE CROKE, Knight, 

O F 

SELECT CASES 

ADJUDGED IM THE 

COURTS of KING's-BENCH and COMMON-PLEAS. 

IN THEEEIGMS OF 

OyEEN ELIZABETH, KING JAMES, and KING CHARLES L 
IN THREE VOLUMES. 



VOLUME THE FIRST— PART THE SECOND, 
F aau THE 
THIRTY. EIGHTH YEAR TO THE END OF THE REIGN 

O F 

Q^U EEN ELIZABETH. 



LIBRARY RP THE 

JKLm UANFim, JR., UNIVERmV 

'-AW DtPARTMBNT. 



RE PORTS 

O F 

Sir GEORGE CROKE, Knight, 

FORMERLY ONE OF THE 

J U S T I C E S 

k 

OF THE 

COURTS of KING's-BENCH and COMMON-PLEAS, 

OF SUCH 

SELECT CASES 

AS WERE ADJUDGED IN THE SAID COURTS DURING THE 

REIGN of QUEEN ELIZABETH. 

\ 
COLLECTED AND WRITTEN IN FRENCH, 

By H I M_S_E_ L F; 

PREVISED AND PUBLISHED IN ENGLISH 

By S» HARBOTTLE GRIMSTON, Baronet, 

MASTER OF THE ROLLS. 



THE FOURTH EDITION, corrected, 

WITH 

MARGINAL NOTES and REFERENCES to theLATER REPORTS. 

AND OTHER BOOKS OF AUTHORITY, 

By THOMAS LEACH, Escu 

OF THE MIDDLE TEMFL I, BARRISTER AT LAWi 



LONDON: 

niNTED FOR. E. AND R.BROOKE, BELL-YARD, TEMPLE-BAR ; 

AND T. WHIELDON, FLEEt-STREET. 

M,DCC,XC. 



' A 



<•_• 



. '••^nnyoFTHE 

'l. . ., ; oiA:^FORO JR. U::!)/Emnt 



Eafter Term. ^^' 

38. Eliz. In the Queen's Bench. 
Sir John Popham, KnL Chiefjujltce. 
iS/V Thomas Gawdy, Knt. ^ ' 

John Clench, Efq. I Jujiices. 

Edward Fenner, Efq. J 

Sir Edward Coke, Knt. Attorney General, 
Thomas Fleming, Efq. Solicitor GeneraL 



Hyde againji the Dean and Chapter. of Windfor. ^*" ** 

Eaftir Tirm, 37. £//«. Roll 162. 

ERROR upon a judgment in the common pleas, in a writ The aflignoe of 
of covenant, the crfe was : The dean andchapter, 30. Hen.%. • term is not 
let an houfe to A. for years by indenture, and A. co- b,*^J^*ovf. 
tenanted to repair the houfe at ail times ncceflary during the nanTwhich^^ " 
tean. A. grants his eftate to Hyde^ and dies. And againft Hyde happened pre- 
fer not repairing, covenant was brought, who. pleaded, quod non y\o\3% xo xht aX^ 
permlfit domum pnedi^am ejfe difcoopertam, et ruinofaniy at any time ^.^?^"*' P*^°* 
ncceflary, &c. And hereupon iuue was joinetC^and found for ]^'J^j ^^^ ^^^ 
the plaintiff, and adjudged for him, and error tlicreof brought. run with the 

The first error afligned was, That this afliort lies not land, 
ag^nft the aflignee, in regard he did not covenant for himfelf P^^' S5*- 
and his aflignees, and therefore it determines by his death. — Roll. Ab. 5*1. 
Gawdy and Fenner agreed, that this covenant ihall not bind Moor,i59. 399, 
longer than during the life of the leflce himfelf ; as Dyer 1 14. a ^^^^^c "^' 
leffbr covenants -to pay all quit-rents during the term, the leflbr ..'^^Jg."^* 
dies : no aftion lies for any quit-rents after his death. ,.* Saik. 199, 

But Gawdy faid, it did not appear here but that the lefiee is Holt, 177. 
yet alive ; for he 4oth not aver that he is dead, and otherwife it ^<^^%^ ^^u 
ihall not be intended that he is dead. 

But Fenner i contra therein; becaufe it is to enable the plain- («) Vide 
tiff to^ the adion, he ought therefore to aver it. But they all held, Smith'i cafi^ 
that covenant lay in this cafe againft the aflignee by the 32. Hen,i. *• 8»^^» , 
c. 34- for it is a covenant which runs with the land ; but other- "^'' *" ^^^ * 
wife it were, if it were to build a new houfe {a). 

A second error afligned was, That here was not any iflbe iirue on a ne^ 
joined, for it is non pcrmijit domum eJfe d'tfcoopertam ad aliquod tcmpus gativc prcgna»t 
nectjf, quaji dicer Hy that it would be fometimes ncceflary to fuffer held good aiter 
the houfe to dtcay. — But the Court held it to be only an ifTue croTac. 87. 
misjoined, and lo aided by the flatute : wherefore it was ad- cro. Car. 311. 
journed (i). 

(*) The judgment was affirmed.*— ?oft. <5i. 

Banks tfg-^z/jy? Whetfton. ''*"*• 

Hilary Term^ 37. Elm, Roll 6\\* 
T\ETINUE of money (not in a bag or chefl) ; and it was there- An aflion of 
-*^ upon demurred, whether the aftion lay.— And, without at- ^'''j^** ^°^* "^ 
gument, adjudged for the defendant, that the aftion lay not: for at)7r^?^^ 

Wea^ 394* ^o- ^'^^' **^» ^^^* J*«« 39- ^It^y »i« »• ^^^* i^^^- '• I^oll. Rep. 50. Noy, 12. 

c%o. jL'Liz. PART II. I i ' detinue 



43-8* 



Banks 

agaifift 
Wh£TSTON. 



Casz 3. 

An inriidment 
for forcibly en- 
tering « Ser» 
** jeaitt Herns 
^ehjr iSfuffi. 
cienciy defcrip- 
tivc of the 
place. 

Ante, 116.235. 
II. Co. 55. 
J. Term Rep. 
II* 

Cass 4. 

The acceptance 
oHone thing 
Will not difr 
charge an obli- 
gation to do 
another. 
Co. 9. 79. a. 
Ante^ 2 5*pl*5* 



Case 5* 



If a man be<« 
comes bail in 
the flieriff 'I 
court at the 
fuit of one M- 
iitrityf and the 
plaintiff reco- 
vers aga-nfl the 
principal in the 
name of jldJUr- 
fyet the bail, 
bein^ in execu- 
tion, and hav- 
ing paid the 
men. 7, cannot 
recovcp it ot/er 
from a thitd 
perfon who has 
proniired to favc 
himharmlvfSfas 
b^il to Adiitt Uy, 
for ihey cannot 
be i.^tended 
1 1.* Cime perfon 



EafterTcrm^ 38.iEUz InS.il. 

detiniie oxight always to be of things certain, and which .may bd 
known to be delivered ; and moneys are incertain, and one piece 
cannot be known from another. And therefore, in an appeal of 
robbery for money, if the defendant gages batta'ile it is no plea, 
that he was taken with the mainour ; for 'the mainour cannot oe of 
a thing not to be known. 

Humphry's' Cafe. 

JOHN HUMPHRYS *as indiaed upon the 8. Hen.(i. c .9. of 
forcibly entering into a clofe called Serjeant Hern's Chfe in Z). 
in the county of Z/«:o/«.— Shurley took exceptions thereto, 
that it was incertain ; fo as there cannot be any reftitution: but 
he ought to have faid, that the clofe contained 20 acres of land, 
more or lefs, as in truth it was. — Sed non allocatur. ForPoPH AM 
faid, it had been adjudged, that an cje^Hone firma lay of a clofe 
well enough, and therefore a fortiori upon an indiftmcnt. 

Norton againji Riftiden. 

Trinity Term, ^y. Eliz, Roll ^9 2' 
"r\EBT upon an obligation conditioned, that if he appeared bc- 
"^^"^ fore the plaintiff at D, fuch a day, that then, &c. (which 
was at the commiflaries court in Oxford). Thedefendant faith, that 
he appeared before the plaintiff at S. before the day, which he ac- 
cepted of, and allowed for his faid appearance to be at D. l^c^ 
^nd it was thereupon dcniurred, and without argument adjudged 
for the plaintiff, becaufc the condition was to do a collateral 
thing ; and the acceptance of another thing cannot difpcnfe. there- 
with, nor is a difcharge of tlie obligation* Dyer^ i. 

Framfon agatnji Delamere. 

Trinity Term, 37. Eli%, Roll 1079. 

A SSUMPSIT. And dcelarcs, whereas one Adderlty levied a 
plaint before the Iheriffs in the Compter of London againft one 
Malynsy which Mcilyns was thereupon arretted and imprilbned until 
the plaintiff, at the defendant's requeft, became bail for the faid 
Malyns \ that the defendant alTumed to the plaintiff to fave him 
harmlefs from that bail : and alledgetli further, that the faid Ma^ 
lyns was condemned at the fuit of Adderleyy and that upon a capias 
awarded againft him, it was returned, non ejl inventus. ^ Where- 
upon the plaintiff was taken in execution upon this judgment, 
quoufque he paid the faid condemnation. * . 

The defendant pleaded non ajjumpjit. 

It was found, that the faid ./^^A/fr/i?)' levied a plaint againft the 
faid Malyns^ who was arrefted thereupon, and the plaintiff, at tlic 
defendant's requeft, became bail for him at the fuit of Addcrley: 
and that afterwards the faid Adderley declared againft the faid Ma^ 
lyns bv the name oY JV. Adder bye^ and thereupon recovered, and 
tlie plaintiff upon it taken in execution by rcafon of that bail : 
and tliat the {zii Adderley hzA not been known by any other 



} but he may rtcover it Uek from the plaintiff* 



name 



Eafter Term, 38. Eliz. * In B. R, 459* 

name than Adderley. And if upon the matter the plaintiff be one^ ^"^^ftf** 
Tsinls in Uge ut manucaptor Malyns, upon that judgment, they DiufAMERE. 
kodd for the piaintiiF, and aflefs for damages 80 1. £t fi non^ csfc. 
Thcv found for the plaintiff, and affefs for damages id. 

And hereupon, after argument, the opinion of the Court 
was. That he Was not onerabUis in lege^ dfc. (o he had but a 
penny damages. For the bail was at the fuit oi Jdderleyy and 
from him the defendant was to favc him harmlefs : but this con- 
demnation was at the fuit of Adderhse^ who is another perfon^ 
2nd cannot be intended all one ; and he was- not bail to that fuit, 
and therefore not oncrabilh in lege thereto. 

But this appears to be but the default of the clerk, which perad-' 
venture might be amended, if the record were before us : becaufc 
it is but the variance of one letter of the bail from the plaint, 
which is in nature of an original. But yet it cannot be now 
amended by us, becaufe we have not the record here ; nor arc 
we judges of the faid r^ord, and therefore he never was in law- 
ful execution thereupon. 

But yet in regard the ferjeant took him in execution by pro- cro. Jac. 8t. 
ccfs of law, that peradventure fhall difcharge him of the falfe im- 4.Bi.Com.a8Sf. 
j^fonment {a) 

And the plaintiff, for the money which he hath paid to Adderley fa) j, Hawk». 
thereupon, in difcharge of that execution, Ihall have an accompt 133. 
againft Adderley to have it ag^in, Wherefore, &c. 

But THE Court gave not any judgment for the plaintiff, al- 
diough it is clear ; becaufe the defendant had pleaded non affidmp^ 
fity and it it is found qucd ajjumpjit : and although there is not 
anjr breach of promife, nor any damage to the plaintiff; yet the 
pl^ntifF upon this verdiA fhall recover the 1 d. damage found by 
the jury. But let him advife himfelf firft, how he take any judg- 
xnent thereupon. 

Denyfon agaitijl Burgh. ^ Case $* 

A CnON upon the cafe for thefe words : " I have a matter Words import- 
^^ V -againft Denyfon the plaintiff, who hath ftolen by the high- ^Jj^J^^^not 
•* way-fide." After not guilty j) leaded, and found for the plain- fe.jony,*arc not 
tiff, it was moved in arreft of judgment, that the aftion lay not aaionlble. 
for thefe words : for it (hall not be intended by them, that he 
committed any robbery, or felony, for he might fteal flicks or 
ftones, &c. — And of that opinion was THE Court : wherefore 
it was adjudged for the defendant. 

Conefbie againjl Rulky. Cas^ 7. 

IT was held by Popham and Fenner upon evidence, that where ^^ **^ huAand 
the baron was feifed of a manor in right of his feme, and let a ^'^ * ^^^^ °^ * 
copyhold, parcel thereof, for years by indenture, and died, that ^^cfchScd* 
it fliall not deftroy tlie cuftom as to the feme ; but that, after the copyhold, the 
death of her baron, (he might demife it by copy as before. The ^^»f«» after hu 
iamelaw is, if tenant for life of a manor lets a copyhold, parcel **^^*^ ^*y. 
of the manor, foryears, and dies, it (hall not deflroy the cuftom cTib! Tci!^Sl 
as to him in rcveriion. 2. roII. i^u 

Douglas 716. 3. Bac. Abr. 307. C&wp. lox. 4, Co. 3.1, 

I i a Langton 



4J6<5^ tafterterai, ^S.Eliz- InB.R. 

^^^^^' Langton 4rf*i;fy? Gardiner* 

Aftxwiff cannot a CTION Upon the cafe, againft the IherifF of the county of 
^13, S! S'^'-^^y- Whereas the plaintifFfucd a latitat zgBin^ D. intend- 

c. 10'. witiiout ing to declare againft him la debt upon an obligation, and there- 
pleading it rp5- upon the defendant arrefted him, and at the day returned cepi 
ciaUy 5 for it is corpus^ et paratum habuhr, ^c, and for that he appeared not at the 
v^a^6^ day he brought this aftion : it was thereupon demurred ; and the 

^ ' *^g defendant Ihcwed to the Court, that he had taken bond of the 
i.^oetzzy. party for his appearance, and was compellable by the 23. Hen. 6. 
a. Saund. 155. c. lo. to let him to bail, and therefore it was not reafon he fhould 
L.Ven.Ss. be now chargeable. « 

1. Sid. 23. 439. g^|. Y^£ Court faid, it might pcradventure have been a good 
^Tcrm^ep P^^^» ^^ ^^ ^^^ '^^^^ pleaded ; but it not being done, the Court 
-ig. * cannot intend it, nor take cognifance thereot (a) : wherefore it 

{m) It is at is reafon, that for tliis falfity he Ihould be charged at the fuit of 
length deter- the party. Wherefore it was adjudged for the plaintiff. 

this ilamte is a public a^ and that Couits vrill take notice of it, although it is not pleaded.—- 2. Term Rep. 

5^9* Neve againft Lyne. 

Case 9. Mubaelmas Term, 36. £^ 37. EUz. Roll 263. 

"U RROR upon a judgment in an affiimpjit in the common pleas. 
ntovtelSSn- ^^^ ^^^^^ affigned was, That there was not a fufficient confi- 

tained upon a deration to maintain the ajfumpjit : for the plaintiff declares, 
promifc, incon- whereas thpre were divers cpntrovcrfies betwixt the plaintiff and 
fidcration of J^ s. the defendant, in confidcration that the plaintiff would 
wi^h{ut'*iddin' "^'^"^^^ hirafelf to the arbitration o( J. D. for thofe matters, af- 
««.w>JLw/o*fiw ^^^cd> &c. and allcdgeth, that he fubmitted himfelf, and that 
«« award, fisfc." the defendant had not performed his pronaife, &c. 
foritftialibcin- ATKINSON moved, that this is not any confidcration, for it is 
tended an abfo- j^^^ ^f ^^y value ; for although he fubmit himfelf, he may revoke 
Antc"ia^! *^'^' ^^ ^^^ ^^^^ ^^7' ^^ prefently : but if it had been in confideration 
Salk'457. *^^ ^^ would fubmit, and ftand to the award of J. D, it had 
been otherwife. 

But aM THE Court i contra : for it Ihall be intended a fubmif- 
fion with an avoiding to the avrard, for fo was die intent of the 
parties : and if he had revoked it, the defendant ought to have 
pleaded it, otherwife it Ihall not be intended. Wherefore the 
judgment was affirmed. 
^ASE 10- Oland againft Burdwick. 

^. ^ Hilary Term^ 37. Eliz, Roll 924. 

If a /tfuw copy- ^ D/ ^ T 

bolder, «/Krrt«/« 'T'^RESPASS. Upon a fpecial vcrdift the cafe was, A feme 
^Uuitate, fovvs X copyl)older, durante viduitate^ after the cuftom, fows the land, 
h\ ^e^ev*"** ^^^ before feverancc of the corn takes baron : Who fhould 
ranee takes'^a- ^^^^ ^^ covxi ? was the queftion betwixt the baron and the lord 
fan, the lord of of th^ manor,— And after argument, it was adjudged for the 
the manor fhail lord (the dcfetidant) that he Ihould have the corn, by the opinion 
have Jhe crop; of PoPTlAM and CleNcH, contradicente Fenner, et abfente Gaw- 
iri'kThands^of ^^' ^^^ Clench faid, there was a difference, when the eftate of 
hcrieOle. him who fows the land is determined by his own aft, by a ca- 
Ante, 61. fualty, and when by the aft of the law, or by another man : 
Foft. 463V and therefore in this cafe, if the feme had let the land, and the 
Co. Lit. ^^b. Gould. 189. 5. Co. IX&. a. Moor,>z4« i^R^oll, Abr. to6. 727. i. Com. Di^. 599* 
%. BV Cornm .124. Pougi. 10 u 

leffcc 



Eafter Term, 38. Eliz. In B. IL 461^ 

kifcc had fown it, and afterwards the feme had taken baron, yet Olan» 
the Icffcc (hoard have tlie corn. But if the deteriniiiatic/n be by « ''^•"^ 
the aft of him who fows the land, it is otherwife. As if a leaie ^^"^''^*' 
be made upon condition, that he fliall not commit wafle ; the 
letlee fows the land, and afterwards commits wafte, the IciR^e 
fliall lofc the com : which cafes Poptiam agreed. And he fur- 
therlaid, if tenant at will fows the land, and afterwards dcter^ 
mines his cftatc by his own ad, by difagreeing to the leafe, or 
othcTwifc, the leflbr fliall have die corn. But it is not fo, when 
ha cftaic is determined by the aft of the leflbr. And if tenant 
for life fows the land and fiirrcnders, or makes a feoffment, and 
the leflbr enters, he Ihall have the corn : whereto F£NN$;h 
^reed. So it is here, wljen the cftatc of her who fow^ the 
hnd is determined by her own aft, for voLjiti non fit iTjjuna, 
TENXEa e contra. The difference will he, when the eftate is de- 
termined before the fcvcrance by uncertainty, by the forfeiture of 
the Icflcc, or for a condition broken. So as the Icilbr enters fo? 
» tort done, or by title paramount, the leflbr fhall have tlie com ; 
2nd when bv himtation of the eftate, as here : and therefore if a 
Icafe be made to baron and feme durine the coverture, and tlic 
iuron fowis the land, and afterwards hekies a divorce, yet he (hall 
have the corn ; which Popham and Clekch agreed, for that it 
is not merely by the aft of the party, but by the judgment of 
^^- — Fenner. If a leafe bemacfe for ieven yearsupon acondi-r 

^lon on tlie part of the leflee, at the end of the feven years to h^ 
performed, to have it for life ; the leflic the laft yearq, fows the 
land, and performs not the condition, yet he ihall have the cm-r 
Elements. But Popham and Fekner denied it. — And judgment 
was given for the defendant. Fide 37. Hfn,6. pL 35. 4p. iVw. 3, 

//•S- Si^Edv,.^. ^' rrcfpa/r jiU. 5. C., 116; . 

Warner and Collins' Cafe, €>»« 1,, 

"^^HO were indifted upon the 8. Htn. 6- c. 9.— And becaule 1% Forcible entry 

was not allcdged to be manu forti^ although it were vi (st *" ^ •'«« 
^rmis^ the indiftment was ruled to be iufufficient, and the parties ^' '^*'*'°* **•* 
were difcharged, f^'* *' ^*^- 

I. HawJ:, a57. 3. B«rr. 1699. i7^j, j. Etc Abr. 5^1, Dalt. 198. 

Jeremy aiiain/t Lowgar. c>».. „, 

A CTION upon the cafe. And declares, whereas he was feifed A hwiband 
•^^ of land in right of his wife for the Hfc of the feme of a leafe ^"^'^-^ ^^ J^aft. 
by 7. S. and they let it to the defendant for years, the defendant j^^^^/^J'^J '" . 
had burnt the houfe ; and thereupon the aftion was brought. mV«nainuin*^ 
The defendant pleads to iflue, and found againil him ; and it was an adiicn ;n bu 
now moved in arreft of judgment,— Firft, that this a£^ion lies <>«» n^»«e 
not in regard it was the plaintiff ^s folly to make a leafe, and not ^piinrtihcicifte 
provide by covenant, otherwife, that the leffee fhould not com- boi^inrihc^'^ 
cut wafte ; which is the reafon that the leflbr had not any ac- premifts. 
tion at the common law to punifh wafte. But Fenner andHoft.777, 
Clexch (Popham and Gawd y abfentibus) held the contrary, by 3.Lev.i3o.35«, 
Tcafon of the charge wherewith he is chargeable over. — Secondly, <-•«>, Car. 187. 
it was moved, that if an aftion did lie, yet this was not maintain- ^^^ ,1^ 
able by the baron only, without his feme : for the tprt which is '' *^' * 7* 
^onc is done to the fftate, whiclx he had i^i right p( his fqmc ; an4 

.lis' ft^<5 



Cask 13. 



45a* ' EafterTerm, sS.Eliz. InB,R. 

^VluJ ^^ ^^ ^? ^^^^ *^ *^^^' ^^'^' of the land) as alfo to anfwcr the da- 
LowGAE, '^^g^s, if Ihe furvivcs her hulband : and it may be the baron fhall 
never be at any lofs ; for it may happen, that the aftion will not 
Ant. 357. ^ brought againft him in the fife of the feme, and then he is not 
chargeable, and it can never be brought againft him alone : where- 
fore it is reafon, that the feme fhould be joined in this aftion. 
But THE Court doubted tliereof— £/ adjournatur. 
Burrough againft Taylor. 

Trinity Term, 27. Eliz, Roll, 

Aicfleeofthe pjECTIOKE FIRM^. Upon a fpccial vcrdift, the cafe was, 
king muft pay •*-« That the queen let lands in Brcwcrnto the defendant for years, 
**u* d^"^ ^d^^ rendering rent ad receptum fcaccanl apud Pf'ejlmon. feu ad manus re^ 
the exchcquc; ; Z^/^'^'"'''"' ^^^ balUvorufn noJh'OYum permlfforum pro tempore exijlen- 
but if the k : g Uum^ annuatim folvend. with a provifo, that the Icale Ihould be 
grant ihc i.<» d void upon noii-paymcnt. The queen. grants the reverfioh to 
IrxTeverfion^hc £)Q^;„gfQ„- ^^q demanded the rent at the day at the receipt of 
demalTdcd on ^^^ exchequer at Weflm'wjler^ and the tenant tendered it upon the 
the land, before 1^"^ » ^nd for non-payment of tlie rent, Z). entered, and let it to 
the patentee can the plaintiff: and it was moved, that judgment upon the matter 
enter as for a fhould be for the plaintiff: For a fpecial place of payment being 
nonpaymcn^^^ appointed, the demand and tender ought to be there, and not clfe-. 
Co. Lit.Toi b- ^^^'■^» ^ '^ 33- ^^^' 8- and KidwelUfs Cafe. Then here, the re- 
4. Co. 73. a. <^eipt of the cxchcqMcr apud ff^yimon. is the local denomination of 
Moor, 404. the place where the payment ihould be, and not for the queen's 
Dyer, 87. receiptthereof only.-^But all the Juftices (ah fcnte Gawdy) hel<i 

t)ougi.4S3.486. the cofitrarv, that the tender need not be at the receipt of the ex- 
chequer. For Pop HAM faid, that when the queen makes a leafe, 
referving rent at the receipt of the exchequer, or by her re- 
ceiver, &cc. it is no more than the law appoints ; for without 
thofe words the law is, that the farmer ought to pay it there, or 
to the receiver for the county ; and fo it hath been ruled before 
thefe times : and it is clear if thefe words " at the receipt of the 
exchequer, &c." had not been in the leafe, the patentee of the . 
reverfion fhould not take advantage of the condition without a 
demand upon the land, and therefore^not here. And the limita- 
tion of the payment at the receipt of the exchequer at fVeftminJier^ 
doth not alter the cafe. For the leffee is bound to pay it at the 
receipt of the exchequer, in whatfoever place it is : as where it 
is adjourned to Sion^ or any other place, the farmers ought to 
pay their rents there, and not at Wejlminfitr . The nomination 
then oi Weflmvflcr in the leafe is not material; but it is becaufc 
the receipt is moft ufually at that place. And of tliat opinion 
were the other Juftices in omnibus ; and therefore rule was given, 
if other niatters were not (hewn, that judgment ftiould be entered 
for the defendant. 4. Co, 72. b. 

Heigham againft Beft. 

^'^•^ '♦• trinity Term, 36. Elix. RolJ^yz. 

If a vjcamge b2 TTRESPASS upon demurrer. The cafe was, A vicarage was 
wdowed with t endowed to have the titlies of the third part of the manor 

the tithes of the * • 

third part of a manor, the vicar (hall have the tithes not only of the third part of the demefoeSi batol 

tlK freeholder* alio« z» KoU. Abr. 54. 355, Ow«ii| 58. 74. ' ' 

• • • " of 



EafterTerm, 3?. Eliz. In B. R. 463* 

of !)• and. Whether tlie vicar thereby fhould have the ty thcs of the ^"^^^'^^P^ 
third part of the demcfncs, and of the freeholders alio ? was the T**vTyg 
qoeftion. — After argument at the bar, it was refolved by Pqpham 
and Fekner (for the other Juftices were not in court) tliat the 
yicar fhould have tithes as well of the freeholders as of t*he de- 
mcfiics* For Fenner faid, that an endowment is to be con* 
ftrued according to the intent of the parties, which (without 
doubt) was, that the vicar fhould have tithes throughout the ma- 
nor. And therefore if the queen grants unto me conufance of all 
pleas within the manor of D. I fhall have conufance of pleas be- 
rwrccn the freeholders of the manor. — Popham. If the queen 
grants me free warren within my manor of Z>. I fhall have it 
within my own demefnes only. For if otherwife, the queen 
wouhl impofe a charge upon another perfon, which the law will 
not fuffer ; fo it is if the lord grants a rent-charge out of his 
iQanor. But if the queen grants unto me felons goods, or waifs 
and ftrays, within my manor, I fhall have it in die lands of the 
freeholders : for it is a liberty due to* the queen, which fhe may 
grant, and is not any charge to the fubjeft ; for fhe hath it iii 
every roan's land, and therefore may grant it to anv other. So 
this compofitioh doth not create arnew charge, but is a difpofing 
of the ancient, which was due by the tenants ; for it runs through 
all the limits of the manor, as well to the freeholders as to the 
demefnes. But if the lord had made fuch a grant before the Coun- 
cil of Lateran^ it would not have charged his freeholders, but his 
pwn danofnes only. — And it was adjudged accordingly for tlic 
yicar. 

Butler agatnft Wallis. Caie i5.< 

Iriniiy term, 37. Eliz. Roll 206. 

•TRESPASS. The defendant pleads, that the place where, After a /i>*ra/f 

is the freehold of ^, S, and that he entered by his command, awards, the 
The plaintiff replies, that as to one acre, it is the freehold of ^onuree may 
J, S. which he let unto him at will, absque hoc that he en- rf!'!^^^^!!)-^^ 
tcred by command of J. S. As to the refiduc, that it is the free- poffMnon by th« 
liold ot y. S. who was bound unto the plaintiff in a flatute, and ftwriff j and if 
that the land was extended. And afterwards, viz. 28th Q^abcr^ '^«?<^'-«ry be 
36. £//2. a writ of liberate was awarded ; and that the ihcriff bv ^^^^ ^a^k^ 
force of that writ afterwards, vi%. 27th O^oher, 36. tli%, delivered ^CTiff^atravwCo 
unto him that land in execution, by virtue whereof he entered, and oi it i& good. 
was poflcfled until, &c. and thereupon the defendant demurred. . cam. Dijt 
— And for the firft part of the replication, it was held clearly to be ,13. ^ti. 
good, and that by this fpecial pleading the command is travcrf hie. 
And as to the fecond part it was moved, that the replication w?;a 
not good ; for it doth appear that the pofleflion' was delivered by 
the fheriff by virtue of the liberate : for the liberate bears date the 
^8th O^aber^ and he pleads delivery of thepoffefljon upon the 27th 
of O^ober before, which is clearly ill, and without warrant, — And 
of that opinion was Gawdy ; but the other J\3flices i centra. For 
when the land is feized into the queen*s hands, and afterwards ^ 
writ of liberate is awarded, the party may prefcntly thereby enter 
without the fheriff 's delivering of poflcfhon ; as where an ot4fier U 
win Vk iivrardQd, th? pany may enter prpfcntlyj as ^. Edw. 3. is. 

1 i ^ A^4 



^4^4 Eafter Term, 38.,EUz. In B. R. 

BvTtiR j^nd Ijere the land being certain which is extended, the .party may 
■vTit'tw. ^^^^ ^^^^^ therein after the writ of liberate awarded. Popham 
alfo held, in regard it is pleaded that the IherifF virtute brevis dc- 
livercd.the land in execution 27th O^ober^ thofe words " the 27th 
** of O^ober^^ are void : for it appears it could not be then deli- 
vered virtute brevis* Wherefore it was adjudged for the plaintiff. 

Case x6. Byrd agatnft Wilford. 

• Trinitj 'tt^rtp^ 35. £//«. Roil 394. 

The chamber- "TRROR of a judgment in debt in the common pleas upon con- 
lain of London -^ feffion. The error afligned was, That ^I'^or^/ brought debt 
is a fpecial cor- ypon an obligation, as fucceflbr of Brandon late chamberlain of 
^"urmcs given ^°^^^f upon an obligation made unto h\vA^Jolvendum to him, and 
to bim (hall go his fucccllors ; and alledgeth the cuftom of London^ that the cham- 
to his fucccffcr, berlain there hath ufed from time, &c. to t^ke bonds to him and 
who may fue his fucceffors ; and that there is a cuftom there, that the fuccef- 
Poft^esa""' ^^^ °^ ^^^ chamberlain ftiall fue tliofe bonds in any court j and 
o , 2- further alledges, that all their cuftoms are confirmed per parliament. 
I RoiUAb*r.c5f>. 7* ^'^^' ^* ^^^ ^^ plaintiff had thereupon judgment ; whereas by 
i.Bac.Abr!683. law this obligation, being a chattel, cannot go to a fucceflbr. — And 
Cro. Car. 344. for this caufe Foster moved, that it was error, and the judgment 
4. Co. 64. ought to be reverfed ; for there is a difference, as it appears 
^ntif'*^ ^ ** *" ^°' ^^-if. 4. pi. 2. betwixt an obligation made to a corporatiorj, 
»rBl,Com.43o. which coniifts of one fole perfon ; as parfon, prebend, &c. fpf 
that {hall not go to his fucceffor ; for he may make an executor, 
who (hall, have the benefit thereof. But of a corporation whicji 
confifts of divers perfons, as dean and chapter, he. which cannot 
have an executor, there the obligation made to one Ihall go in fue- 
ceffion : and here by the death of tlie chamberlain, in the interim, 
before a fucceflbr fhall be ele^ed, none can have the a£tion ; and 
if it fliould go to the fucceffor only, the aftion is fufpendcd ; and 
a perfonal aftion once fufpended, is gone for ever.— But on the 
otlier hand it was moved, that in regard it is alledgcd to be a cor- 
poration for that purpofc to take obligation, it may be well allow- 
ed, and fhall go to the fucceffor, and not to the executor ; and fo 
be 8. Ed'w. 4. pL 18. and fo was the cafe ruled here, PafcB. 
ai.E/iz.Mabb's Ca/e. And GODFREY faid, that it was in one Tay- 
lor* s Cafe fo ruled accordingly, where debt was brought by the fuc- 
ceffor of the chamberlain in the mayor's court upon fuch an obli- 
gation, and a recovery and error thereof brought ; and before 
Manwood, and other fpecial commiflioners for this purpofe, the 

i'udgment was affirmed.— And of that opinion were Gawdy and 
^ENNER (PoPHAM andCLENCH abfsntilus) ; for the chambcrlairt 
is a fpecial corporation to that purpofe, and an obligation may as 
well go in fucceffion as land, as Dyer 4S. is. And therefore the 
cuftom being averred to be fo, it is lawful and reafonable, &c. 
Wherefore they gave rule, that if other matter were not fhewn to 
the contrary upon the firft day of the next term, tliat tlie judgment 
Ihould be affirmed. Which accordingly was then affirmed.—. 
Not A, In Micb. 43. and 44* Eliz. in the queen's bench betwixt 
Poil, 681. Wilford and Hutton^ Athx was brought upon fuch a recpnufance 
made tq Brandon his prcdeceffor, allcdging the cuftom of L^ndm 



Eafter Term, 38. Eliz, In B. R, 4<>5* 

for Ac diamberlain to take obligations, or recognifancc to them ^^" 
aad their fucceflbrs, for orphans portions. And, after judgment wn!f o»d, 
ifor the plaintiiF» error was brought thereof in the exchecjuer 
chamber, where the judgment was affirm^d^ 

Sherley againft Sackvile. ^^« ^7- 

Trinity Term, 27. Eliz. Roil ^^S, 

?7RROR of a judgment in the common pleas in debt uppn an f"/*J„°".^^ 
f^ obligatio/i. Tlic error affigned was, Bccaufe Surrey was in the ^a^n^^aU re- 
margin of tlic declaration, and the defendant therein w^as named fer to the county 
of D. in tlie county of Suffix y and that he made that obligation wi)trcihc bond 



jit Darking im cpmitat* pnt£ef. and upoi> non eft fadum pleaded, it was made, and 
was tried t>y the county of Surrey^ and thereupon error brought ; ^g^g^^jj^^^^p. 
for c^mitat. p^tdiH. refers to the county laft named, which is the fcndant iiv 



county of ^ujfex \ fo ^ mif-trial. Sed non allocatur \ for it fhall Ante, 436, 
have relation to the pounty where the aftion is brought, and that 1. Mod. 37. 
named in the margin; for the other count}' mentipned was byway 
of recital, and therefore it Ihali not relate thereto, Wherefore the 
judgment wa§ affin|[ied. 



Alfop againft Cleydon. 



Case 18. 



A SSUMPSIT. A fpecial verdift was found, and thereupon ad- a defendant is 
''^ judgM for the defendant ; and it was now moved, Whether cn»Ucd to cofte 
jthc defendant Ihould have cofts by the 23. Hen. 8. c. 15. [a] ? For "J'afa''!^^^ 
it was alledged, that that. is to be intended where the plaintiff is verdid. 
nonfuited, or a general yerdift pafleth againft him ; fo as it appears M9or,4o6. 
that he had not any caufe of aftion.— But the%Coi7RT ruled, that 2. Crompt^ P, 
Jie IhouM have colts ; fpr a fpecial verdift is as well a verdift for 45»' 
him for whom it is found, as a general verdift, and there is not ^°"8*- ^77* 
any difference when judgment is given thereupon j. but it is as if 
a general vcrdift hacf been given for the defendant. Wherefore, &c. 

» 
{•) See 4. Jac. i. c. 5. 8, Eliz. c. 2. 13. Car. i. e. 2. S. tc^. Will. 3. c. xz« 
4.& 5. Ann. c. 16. 

Portman againft Morgan. Casi 19, 

17 JECTIONE FIRMiE of 30 acres of land in D. and 5. The A verdia may 
^^ defendant was found guilty of 10 acres, 2^6: quoad rcjiduum^ befuppiiedby 
nst guilty. And it was raoyed in arrcft of judgment, that it is un- l^formTtlon ^ 
certain in which of the vills this land lay, and therefore no judgment 
c^i be given* nor any execution. — Sed non allocatur^ and it was ad- ^^gj^a * m* . 
judged for the plaintiff; for the flieriff (hall take his information AmeTafi's"'* 
from the p^yt for what 10 acres the verdict was, 29. Hen. 8. Palmer, 289. 
Dyar^ 34- 3- wiif. 49. 

, i.Burr.i 39.692. 

4.Burrow,2673. 

Clifton againjl Gybbon, cas. 10. 

A SSUMPSI't*. The defendant affumed upon good confideration A promife to 
to nuke fuch affurance of fuch land as the plaintiff's counfel ^^v^c ^ ^ 
fliould advife. The pliyntiff himfetf, without any counfel, or ad- ^^''f^^^\^^' 
?ice of any counfel, requires fuch an affurance to be made. Whether ,„uft y^ p^. 

advice is taken— Aotc, 298. x, RoU. Abr. 466 /°""^> '**''' "** 



*466 Ealler Term, 38. Eliz. In B. R. 

Clwtow ihg defendant be bound to make it ? was thequeftion.— And it w« 
CyWn. T"^^ ^7 '^^^ Court that he ought ; for tahavc advice of counfel, 
r "S vd *c ^^ ^^^ ^^® ftrengthening of his affurance : and if the plaintiff 
io? b.* * ^' ^' ^^ ^^^ °^'" P^^^^ ^^^ enqui/e it of himfelf, the defendant ought to 
Ante,* 298. ^^ i^ as he requires (tf). Wherefore it was adjudged accordingly 
I. Wood*8 Con, for the plaintiff, 

aSS. eoHtra, 

Ca« «• Weare agahtj WoodlifF, 

m^lbh^ittht A^^^^^^^T^' The parties being at iffue, and a venire fadas 

term it is re- awarded and returned, and afterward 2l di/inngasf the matter 

nimed, but not was before the Juftices oi nifi prius in Exqh ; but it did not appear 

•fterwards. upon the dorfe of the dljhingas that it was returned by the IheriiF, 

Ante, 3x0. 340, |_h^j^^ being no return at all upon it : and tliis matter was alledged 

Cio. Car. 563. in arreft of judgment ; and a precedent for that purpofe cited be- 

Moor, 868. twixt Stayner and James^ 35. Eli%. where for this caufe judgment 

y^,^ j^q' was reverfed. — But all the Justices held, that forafmuch as it 

Cro.'jac.'iSS. ^^ in the fame term wherein it came in, it may be well amended, 

3.Bac.Abr.»^4. upon examination of the IherifF that he intended to return it, an4 

the return Ihall now be made thereto ; but if it were in another 

• term, it cannot be amended. Wherefore it was ordered, that the 

fheriff ihould be examined ; and if it appeared that he intended to 

return it, and that it was tried by the fame jury, as it ought to be, 

that it ihould be amended. And it was afterwards api^nded, anc} 

the plaintiflF h^d judgment, 



Casi 21« 



Alfton cgainjl Pamphyn^ 



An affife, or an 
]i£lion on the 



A CTION upon the cafe for flopping of a way to his freehold in 
'^■^ Newton^ in Norfolk. Upon not guilty pleaded,* it was foun^ 
diiturbancc^in ^^^ ^^^ plaintiff ; and now moved in arreft of judgment, that in 
lh>ppins a way refpe£t it is a nufance to his freehold, he ought to have had an af-> 
«pon the plain- fife, and could not have an a£iion upon tlic cafe, l^ide 2. Hen. 4, 
tiff's free- y^ j j^ 21^ jf^^ j ^/ ^o. i^yrr, 250.— But all THE CoURT held. 
Ante, 109 *'^^^ ^^ might have an aftion upon the cafe, or an afCfe, at hi^ 
Foft. 5»». 845. cleftion. And Poph am faid, he had feen it fo in experience di-» 

Hen ^^^^ times. Wherefore it was adjudged for the pl%intiff» 

9* Co. 112. b» !• Roll. Abr. 104. i. L^on. 247. a. Leon. 184, 

PAfE *3. Bedel againjl Sir Edw. Wingfield% 

A mifpriiion in EJECTION E FIRM-^ of fix acres of pailure. The record of 
•^rd^am 'ded^ ^^^ «f/f />*/«j was 6 acras partuva ; and it was. tried,, and found 
after verdia. ^^^ ^^ plaintiff ; and now moved, that this word partura- mi^ht bp 
Ante, 340. ' amended and mzdc pa/iur a ^ according to tlic record, winch is 
a.Com. Dig.317. the original ; for it was but the mifpriSon of the clerk (a), — And 
1. Mod. 15. it was To ruled by the Court i ^d it was amended, vk} jud^cn^ 
Dpngi. 114. 1,5. entered for the plaintiff. 
1* Term Repb 



Eaftcr Term, 38, Eliz. In B. R, 4^7* 

Willoughby a^ainji Gray. . ^^« ^ 

EofterTirmy ^j.MUz. Roil ^S), 
pRROR of a judgment in the common pleas. The error af- Errors in wjwV# 
'*-' iigncd was, Bccaufe the venire facias bare date 24th December yf^^*''' ^^ ^J 
which was out of term. And it was ruled to bc^ no error, but J*!^"'* ^ ^ 
aided by the ftatute of jeofails. So it hath been ruled where a ,. sid. 304, 
venire facias bare tcfie upon the Sunday j that it was aided by the fta- i. Roll. »of, 
tute. — A fecond error affigned was, That the writ was made re- Owen, 59. 
tumablc coram jujiiciariis nofiris^ and doth not fay afud fVefitiu J^*'"''* *^5- 
Sfd non allocatur^ for it is necei&rily intended.— Thirdly, The j.str/iit. 
writ is et habeas ibi nomina^ and leaves out juratorum, Sed non i. Con1.Dig.3159 
allocatur; for it IS merely a mifprifion of the clerk : wherefore it 3»6- 
was awarded that it (hould be amended ; and ttie judgment was 3-Bac,Abr.i76. 

affirmed. 767. 

2. Hawk. 424. 

Bedingfield againft Feak. case 25. 

PROHIBITION. The cafe was, In the village of D. in a ^-^ id which 

Norfolky there hath been a parfonage ^nd vicarage to the church P^ys s^cat cithet 
thereof, time whereof, &c. and the parfons have always had the *° 'he pa^n 
great titlies, and the vicar the fmall tithes ; and that the parfons Zi^xct^, man 
for forty years have had the titlies of fuch a field, viz. the corn ; pay fmaii titbei 
and it was now planted with fafFron, and the vicar fued for the to the vicar 
tithes tliereof, and tlie pvfon fued a prohibition ; and it was there- ^J^^n P^an««* 
upon demurred. ^ 7ndIt^sfor 

Coke moved, that it well lay ; for by the 2. iff 3. Edw. 6. c. 13. fo many acres 
tithes ihall be paid as they had been paid for forty years before, of a park con- 
which had always been to the parfon ; and although tlie land be tinucs, tho' the 
now orherwife employed, yet the parfon fhall have the tithes |^"^ ^t^'ll^f" 
thereof: and therefore it hath been adjudged here in the cafe of ^i^^^^j^^l^ 
Shipdam-parky in Norfolk^ where lOs. was always paid for the pay the fhooWcr 
tithes of all things renovant within the faid park; and afterwards of every doc in 
(he park was difparked^ and converted into arable land, yet no '*®"^^*" '''**^» 
otlicr tithes fhould be paid but the los. *'r°u Ib*^'^*^* 

PoPH AM. It was otherwife ruled in the excheq uer,in mafter ** ^ * ^''^^^* 
fVortVs cafe, for a park in the county of Somerfet, Hob. 39. 

Fenner. The law is certainly as it is cited in that judgment Moor, 909. 863, 
in this court. — And the clerks (aid, that they had divers prece- ^'°' !»«• 28. 
dents in cpurt according to the judgment cited. , Ow^n '^ ^^' 

PoPHAM. The difrcrence is, when the prefcription is to pay Godb!238?^^' 
money for all the tithes of fuch a park ; and there peradventure, 4. Mod. 184. 
If it be difparked, he Ihall not pay any tithes ; and where it is to a. Atk. 365. 
pay the (houlder of every buck or a doe at Chrijlmas^ for all tithes 5- brown's Par. 
Qf'the park,; there, if it be difparked, tithes. Ihall be paid as of ^^^86. ^;""' 
other land. And in tlie principal cafe he held, tliat tlie vicar 
fhould have the tithes of fafFron, as minuta dccimee ; for notwith- 
ftanding that tithes had been always paid for that land to the parfon, 
yet being converted to another nature and ufe, it (hall be paid to 
the vicar, as if it had been converted into an orchard. So, if the 
vicar is to have all the hay, if the meadow be converted into arable, 
the parfon fhall have it ; ioe converfo. Wherefore a confultation 
was awarded. 

See II. & 12, Will* 3« c. x6« and the 31. Geo. 2. c. 12. as to the tithe of hemp, flax, 

«dQ»dto, ...... I v. w 

pawca 



*468 Eafter Temi, 38. Eliz, In B, R, 

^^** **• Gaven againfi Ludlow. 

^^^7tl *'^*^' R EPLEVIN. The defendant at the firft appeared ; and after- 
TZ onth^rc wards, upon pleading and demurrer, judgment being for the 
turn day before plaintiff, and a writ of inquiry of damages awarded, returnable 
the Court rifci, O^ab, Mich, the IherifF returned the inquiiition upon the day 
itisfufficieit. of the efloigns Offab. Mich. . And for^this caufe exceptioR was 
V^'-li' ^aken tliat it was not well executed ; for no writ returnable Oefab. 
' ' ' Mich, can be executed upon the fame day of the return thereof! 
^Rdil Abr % —And PoPHAM at the firft was of that opinion. But Gawdy, 
j^RoiLAhr'a-rl! Fenner, and Clench, e ci^ntra ; becaufe upon all the day of 
3lfiac.Abr.273, Offab. Mich, the writ might have been executed ; for the writ is 
5,Com.Dig.i9i. only to have thq writ at the fame day, — Afterwards being moved 
Uougl. J98. agam, the cafe of Buckleer v. the S^Htin^ in a quart impedit^ was rci 
membered, where the writ of inquiry of the value was executcti 
the firft day of the return, bat the jury did not give tlieir vcrdift 
until two days after, and it was adjudged to be good ; for die jury 
being charged the firft day, altliough they gave not then- verditt 
until two days after, it ihall not prejudice the party ; but the vcr- 
dift being given fhall relate to the firft day of tlie return, and fhall 
be faid to be. executed upon the firft day, for it fhall have relation 
to the firft day. Wherefore Popham ^reed with them, tliattli^ 
writ was well executed. Vide 33. Hen. 6. //. 45. 

CAS127. Wright againfi the Mayor and Commonalty of Wickam, 

Trinity Term, 37. Elix. Rcll z^z. 
It BMy be af. TERROR to reverfe a fine levied of 120 acrps of land by barot^ 
to^tnciB^' and feme to the defendants. The error aiGgned was, that the 
by hofband and ^"^ ^^ covenant upon which tlic fine was levied did bear tefle lotl^ 
wife before Augufty 12. Eli%. returnable menfe Afichaelis endem armc (which was 
commiffionm, 273i O^ober)^ and that a dcdirnvs poujtatem iffued to certain com- 
d^ befwc^tl '^^^^"^^s ^^ ^'^^ ^* conufance, which did bear ufte nth Augufi 
return *of7hc^ in the fame year ; and that the feme, from whom he claimed, died 
writ of cove- 17 th O^ober eodem anna, before the return of the writ of covenapt- 
nantjandiffo — NoTA. Hc entituled himielfas heir to the feme, but neither 
found, the fine \j^ (h^ ^^.j^ ^j affigiKneht of error fhewed ho^ heir, or that thQ 

for th« p'rttf ^^^5 ^^"« ^^^^ ^^^s ^f the ferae. 

the lands wi.ich The defendants pleaded,, that after the fine levied, the plaiati^ 

icmain nnre- ,did enfeoff y. S. of the faid lands. 

kafcd ; but if Xhe plaintiflF replied, that hc did not enfeoff, &c. and upon tlia^ 

the plaintiff ^ ^^j.g ^^ j^^^ j^^j j^ ^,j^ found, that hc enfeoffed 7. 5. of 2Q 

damis as heir to*' r r ^ i_ r^i ^t •' 

the wife, and acres, parcel of the 120 acres, but not of the rendue. 

does not ihew Sn AGG, for the plaintiffs prayed, that the fine might be reverfe^ 
knu i.tir, or that for the ICO acrcs of which no rcoffraent was made. 
*h! /*°d * Til ^^^ ^'^^ *^ exception was taken to the afiignment of the error, 
wife^^heVrit ^'^* ^^^ ^^^^ ^^^^^ cognifor died before the return of the writ, whicl\ 
ofci'orisinfuf. is Contrary to the record, and not to be admitted|. — ^Gqdfrey^ 
ficient. for the plaintiffs anfwered, that the difference is i)etweer^ a co-. 

Port. 469. 677. nufance taken in court, which is always after the writ return- 
s.c.Moor,4i'3. gj . there the party cannot fay tlip conufpr was dead before 
^* Ro?irAbr!* ^^ ^"^ returned; but againft a conufance taken in pais befqre 
4*ia- 75*7- 7^^' commiffioncrs hc may affign for error, the death of the co-i 

T. Raym. 461. 

Comb. 57. T. Jones, j8i. 3. Mod. 99. a. Ld. Rayn). ZfZ, 2. Wilf. xx5, 3. Co«i Dig. 355, 

», Bac.Abr.195. aip. a26. 537. Cruif^on FlneSi 51. %^$, 

nufor 



Eafter Tenn, 38. £liz; In B. R. 469* 

hnfor before the return of the writ, for that is not contrary to the w»io«t 
lecofd ; for riieconufor may die after the conufarice, and beforetlic ^j*^*"^ 
retarn of the writ ; and death is a countermand of thcconufancc -, and ^'^ 
and the recording of it afterwards is erroneous. 8. Eli%. •^7^-Commokaltv 
Aad although, to fave purpofes, it 29 a fine after theconufance, and ef 

before the queen's fiWer is entered ; for the conufcc may have a Wic^mam* 
qmd juris cUmst^ as 22. Hen. 6. is ; yet it is no perfed fine, for the 
death of either of the parties doth abate it. And t. Afar. Dyer 
doth not impugn this difference : for there the error was aiTgnedy* 
that the conufor died before the tejle of the cUdimus poteftaumy whicli 
is direftly contrary to the conufance before the commiflioners, . 
who are jnfiiccs appointed for that purpofe ; but here it is con- 
fefled that the party was living at the conufance, but died after; 
which was agreed^ iciam Curiam. — And Popham faid, tliat one 
may be received to fay againft the conufance of a fine taj^en before 
the chief juftice of the common nleas (which may be without a 
duimus) (a) that the conufor died oefore the return of the writ of («) Co. Rotf. 
fcovenant. — As to the matter ia law Godfrey faid, tliat the fine lo- 
i$ to bereverled for the hundred acres ; and it is not ftrange for a*- '^^ 5«*« 
fine to be reverfcd in part, and to be in force for the refidue ; as a ^^2om* Di«. 
fioc levied of guildable lands, and of land in ancient demefnes, Xkj^ ' 
though the lord by a writ of difceit avoid the fine for the ancient 
demefne bad, yet it is good for the other land, as 17. Edw. 3. and 
25. Edw, 3. — Tanfielo and Gsorce Croke centra. For in a 
writ of error the plaintiff is to annihilate die record, and to have 
rcftiturion of that which the record eiveth away from him ; and 
if by any aft he hath barred himfclf to fubvert the record, or to 
have reftitution, his writ of error is gone : and in this cafe he can- 
not have reftitution of that of which he made a feoflFincnt ; as if he 
had made a feoffment of the whole no error lieth, 12. Hen. 6. 6. 
39. Affi fo a releale of his right. The writ is entire, though a 
feoffment be only made of part, and the right cannot be divided : 
as 3. Hen. 4. pL 17. if one be indebted to me by contraft for 
aol. and I tie bond for lol. of it, the whole contrkft is deter- 
mined: fo 29. Edw. 3. if one enfeoff me of twenty acres with 
warranty, and I enfcOTp ^. S. of one of them, the warranty is 
gone ; 9. Hen. 6. by Bahmgton. 19. Hen. 6. the Cafe of Partition. 
But by aft in law it is otherwife : as^. Edw. 4. cafu penuhlmo^ if 
the Ihcriff levy part of a debt hj fieri jaciasj the party may, have an 
adion for the refidue. — Tota Curia contra^ in the point in 
oocftion, that the feoffment only defttoyeth the title of error for 
tnat party. — ^Fenner laid, he which hath title to a writ of error, 
hath right to the land ; and none will deny but, if he releafeth all 
his right in the land, a writ of error lieth not. — Popham. He 
hath a right of aftion to the land, but not a right in the land : for 
if the land had defceoded to him, he haj not been remitted: but a 
right of aftion maybe divided ; as if two bring error againft^. S^ 
he pleadeth the relcafe of one of them, he (hall be fevered, and the 
other Ihall recover : but if one hath a right, and he brings aftion 
againft two, and one pleadeth a releafe, this is good to both. — And 
THE Court agreed to leverfethe finefor the hundred acres. — But 
t'iftca it was (hewed, that he made himfelf heir to the feme ; but . 
(hewed not how, nor that the land was the land of the feme : and 
for thofe caufes the writ of error was held to be infufficient. 

Eaft'^r 



+7^' Eafter Term, 

38. Eliz. In the Common Picas. 
Sir Edmund Anderfon, Knt. Chief Jujiice. 
Francis Beaumond, Efq. ] 

Thomas VValmfley, Efq. > Jujiices. 

Thomas Owen, Efq. J 

•iS/r Edward Coke, Knt. Attorney General. 
Thomas Fleming, Efq. Solicitor General. 

II II IWH IIB » ■ 

C'^'***' Childs againft Wefcot. 

Ea/ter Term, 37. W 38. Elix. Roll 712. 
Iflind be coo- t^JECPIONE FIRM^. Upon a fpccial verdift the cafe was, 
vqrcd to -^. and ^ Thrcc joint-tcnants for life ; the one of them purchafed the re- 
ofB^th^w"^^^^^^^^ ^y ^"^- Whether tlic jointure were hereby diffolved, or 
iointltenamsfor^^^? was the queftion betwixt his heir and tlie other two who 
Jifcj and if oncfurvived. — Glanvile moved, that the heir fhould have his part: 
purchafe the for the difference hath been always, where tlie reverfion comes to 
fc^wancc '* " **^ freehold, there the jointure is deftroyed : but where the frec- 
Co^Lit. i8a ^^^^ comes to him in reverfion, and to another, it is otherwife. 
a. Co. 60. b/ And it was rcfolved accordingly in the court of wards, in Mor^ 
1. Leon. 318. gan^s Cafe^ by the opinion of the two chief juftices. — ^And fo held 
Cro. Jac. 33X. all THE CouRT. And W ALMSLEvfaid, it was ftronger here, be- 
^Cd^d' ^*6*- caufehe takes this reverfion by fiwc fur conufance Je droit come ceo ^ &c. 
a.Bac! AbriiT?! ^hich implies a precedent gift, and that implies a furrender of the 
Pop. 52. ' conufee ; but a gift to two, and the heirs of the one, the freehold 
3.Bac,Abr.i9i . remains in jointure, becaufe it was fo given at the beginning ; but 
otherwife it is where one of them acquires the reverfion af- 
terwards, or it defcends upon him : for if it were not fo it would 
be mifchievous ; becaufe if the other two committed waftc, he 
ihould not have any remedy for it. — But there was not any judg- 
ment given at this time, for that it was faid, ther? were divers 
faults in tlie verdift : and therefore it was adjourned {a), 

(a) After a fecond argument it was adjudged that the heir fhould have hit part. 

. Poa. 481. 
Ca<i29. Corbyn againft Brown. 

Michaelmas Term 9 37. ^ 38. Elix, Roll. 523, 
NeigMtfty A SSUMPSIT. The defendant pleaded not guiltv, and found 

pkadedata^ XX for the plaintiff; and this matter was moved in arreft of 
t^aenliffwin judgment by Hearn^ that this was not any iffue in this aftion. 
mffumfp. — ButallTHECouRT held, thataltliough it be not a proper iflucin 

Cro. Jac. 44* ^j^j^ aftion, and therefore the plaintiff might have demurred there- 
Carth. 371. upon, yet becaufe in this aftion there is a difceitalledged to charge 
a. Lev. 142. the defendant, not guilty is an anfwcr thereto ; and that it is but 
1. Saund. 103. . an jflVie misjoined, which is aided by the ftatute, being after ver- 
Cro. Car. 78. jj£^ . ^^^ ^Yi2X aids misjoining of iffves, or other feults ; and this is 
aisww^'iw j! an iffue, but an imperfeft iffue. Wherefore, abfente Owen, it was 
' adjudged for the plaintiff.: — And Walmsley faid, that he had 

manyprecedentsin the queen's bench of that iffue joined, and tried 

in this aftion, and judgment thereupon. 

Halland 



. Halland againft Mabbs. Chtt^u 

ACTION for thefc words: " % Halland (the plaintiff) will Words not 
^^ ** come home again, if he elcape the gallows^ for he hatha^ona^i** 
" deferved to be hanged/' After verdift it was moved, Jtliat an 
aftion lay not for thofe words. — And fo it was ruled accordingly : 
for they are too general ; becaufe the country people might intend 
that he deferved hanging, although he never committed any felony. 
Wherefore it was adjudged for the defendant. 

Anonymous. Case 31. 

A CTION upon the cafe for thefe words : " Thou haft feloni-" Yhoo haft 
*^ ^ oufly taken my wood." After vcrdift for the plaintiff, " /''»'»'<>'i/?r 
Spcrling moved, that an aftion lay not for thefe words, f^'^ ^^hgj^^'^'^i^JJI]^ 
might be intended wood ftanding, and fo no felony. — ^But the * '*^* 
Court rcfolved to the contrary: for being fpoken in the worftj^**- 77- 
fenfe, it Ihall be conftrued moft llrongly againft him who ftake^ Ld. Rayau* 
it, wz. that it was wood cut down ; lor otherwife he could not ^j^. ' 
have faid *^^ felonioujly taken." Wherefore by Anderson and 
Beaumond, contradicente Walmsli:y, and Owen abfente^ it was 
adjudged for the plaintiff. 

Sheldon againft Hodges, Ca€« ^ 

REPLEVIN. The defendant avows for damage fcafanu The A ckfe^ of 
plaintiff by his replication claims common by prefcription in P^°^**^!."^ "J2 
the place where, being Broadway^ in the county of Worceftery ap-coofem of Um 
purtenant to his manor oi Daky in the county of Gloucefter\ andpardei. 
iflue thereupon, and two venires awarded to the fheriffs of the fe- 
veral counties. And now feven of the county of fVorceJier ap- 
peared, and five of the county of Ghucejier. And although there 
ought to have been fix fworn of each county to try that iffue, as 
appears 49. fz/w. 3. i. 31. Hen, 8. 46. yet by the affentofthc 
parties, thofe twelve who appeared, by advice of all the Justices, 
were fworn, and tried the iUue ; and the parties releafed all errors, 
the one to the other. And it was commanded, that this aflcnt 
ihould be entered upon the record ; for otherwife it would be a 
ibange precedent. 

Cary againft Dancy, Casi 33, 

Micbatlmas Tfrm, 37. ^ 38. Eliz, Roll 1946. 

P JECTIONE FIRMjE. Upon a fpecial verdift the cafe was, ^f ^ ^.^ ^ 
*^ Tenant in tail of lands in Jndover levies a fine with proclama- reverfed by wra 
tion, with the remainder to himfclf in fee. The fii^e was after- e/^i/j:#x/ the UTwc 
wards reverfed by a ifcr// of difceit\ and it was thereupon held by»" ^**^ ^^^ ^ 
the whole Court, that the iffue in tail is remitted, and ^'^^'^^^'^^^^^^ 
troidail cftates made by him ; for the fine is void between the tcriilirfirtrijrfc 
parties. But the tenant in tail, after that fine levied, and before itfor years, with 
wasierer&d, had made a leafe for years, tlie remainder over for rwn*»n<*««" over 

fife; and. Whether the iffue might enter to avoid thofe eftates ? ^°'' "^"^» **** *^* 
* ° cannot enter to 

noid thefe eilaees without ^fiirt facial againft th^ tenant of the freehold.— 8. £dw. 4. p|. 6. F. N. B* 
^ <«RaiL 327* Lttt. 713. 4.1nft«a70, 3* Loon, iz* ZtSalicaiob i. Leon. 290. 2-Bac. Abr. 

was 



47^* Eaftcr f erm, ^8. Eliz. In C. B: . 

Ca»t tTis the queftxon.— And it was held, Aat he could not, without af 
^g^'lfi fcWefadai fucd againft hiib who had the freehold ; for he who is 
'^^^^* to defeat a record, is always to commence his fuit againft him who 
is privy to the record : but when he hath rfeverfed it againft him,- 
he ought to have always a fcire facias againlt him who is terre-te- 
nant; for it m^y be he hath fome matter to bafr hiin of execution. 
And otherwife he ftiall not be bound, unlefs he bte made privy by a 
fare facias^ or that two nih'tls be returned : d(s if Crror be brought to 
Inft. 458. Tcverfe an erroneous recovery, or t, contra formam ctfilationis is 
brought againft an abbot who aliened, or a ceffavit de cantarla ; ?n 
all thefe cafes the tenant of the land fhall not be oufted, without a 
fcire facias fued againft him ; and if he be, he ihall have an ailife. 
Fitzh. N. B. 142. y 211. 23. Edw. 3. contra Form. 3. 2. yf^f 
13. Wherefore, &c. But quere^ in this cafe, how a fcire facias 
may be awarded for the defendant in'the fuit ; and where the land 
itfelf is not in demand. — Afterward, Trinity 38. Eliz. the Court 
was moved again ; and they held, that he could not enter without a 
fcire facias: but they refpi ted judgment, aAdg^Ve a rule, that if any 
' ^ of the parties died, judgiiient mould be entered tunc pro nunc* 

fcAi» j4* Betford againft Ford. 

Jnte, Page 447. Cafe 12. 

A wtbenH TPHE cafe was now argued again by Drew oh the one fide tmi 
mak^ a leafe Gl ANviLE on the Other. — And after argument the Court' 

for 70 years, refolvcd, that tliis confirmation goes to the whole term, and cannot 
The Dean and be. abridged by the following words. For OwEy faid, the corifir- 
^k^T^^tfJ^ mation was concefjionis pr^di^a in forma pradieiay and it cannot be 
for CO ycare abridged by the fubfequent words : but if he had confirmed the 
mnd m mart. land For fifty-one years only, it had been good for fo much ; but 
This is a con- here the firft words go to all the tertn, and therefgre the limitation 
finxiat:onof the for fifty-one years comes too late. And to tliis reafon Anderson 
whole term. agreed. 

n»i447' ^ Walmsley. If one will confirm an eftate, he cannot appor- 
JxjiJiu^ ' ^^^ *^ ^y ^^^ confirmation ; as a confirmation to a diflcifor for an 
Co. Ut. 297, hour is good for all the eftate : but when the eftate is divided it is 
30c. otherwise ; as if an eftate be for life, remainder over, the confir- 

Moor, 479'4^i« mation may be to any of them. So if leflce of a difleifor for twenty 
f*And*^'' years* makes a leafe for ten years, the difleifee may confirm it to 
Hcti.^75.*^* cither of them, ^nd not to the other. Wherefore, &c.— -A^d 
3.Com.Dis* afterwards, this term, it was adjudged accordingly, that the con- 
384. firmation went to all. 

Case 35. , Ragiftcf^s Cafc- 

Wherethepioy A WRIT OF DOWER was brought of lands in the county of 
clamation in •^*' Northumberland. The parifti-church wherein this land lay 
dower (hall be y^^g ^x Newcajile^ which is a county by itfelf. Where the procla- 
""^•' mation of the fvfmftions, by the 3!. Eliz. c. 3. Ihould be made? 

H^*^"'*'* was thequeftion."— And ruled per Curiam, that it ought to be at 
Noy,*22.'' the parifti-church door (a), although it were io another county 
j.iCeb. 5;i9.6So. than where the land lies. 

1. Mod* 197. 

(«) See 29, Cir. a. c. 3. Perk. 437. Co. Lit. 34, 35. 

Woriley 



Woilfey and Worlley , the Father and Son, agalnjl "etiarhodk. ^**» 3^- 

AUDITA QUERELA: Vot fding exkutidn lipdn the father's An «i»i///afir«rf 
lind in IXltnd of the ifon's land in St upon a ftatutc acknow- ^"l^" ^rin ^ 
ledgcd before the mayot of Prtfioh^ fealed with one piece: /««"nam« of 

It was now movedi thit they ought not to join in this afiion ; theconufdn of 
for they fuppofed the ex'eciition of their Unds fevcrally, which area ftatutc ftapic, 
fereral cauies of fuit, whereof every one Ihall hive his aftion apart ; ^**^^*l** ^^ 
2535. /for- 6. pL ao. of an execution fued igainft joint-tenants oi^^r^^^^ 
their lands; they Ihall join in an tiuiitit qu&ela ': but if execution executions oh 
be fued of their bodies, they lliall fever, for the tort is feveral. thdr Unds 

Harris, fcrjtant^ e contra. Although the execution of their rc<p«^vely. 
hnds be feveral, yet it is upon one ftattite which is entire; and Moor, 570; 
therefore one audita querela lies, as 20; Edw. 3. *^ jiud, ^wer." 28. 
is. An ttui£ta qtterc/ais alfoby way of defence, as 34; Hem 6. pL 31. 
is ; and by way of defence- two mdy join, although their plea be 
feveral^ as ii* kdtv. 4. ph 6. Wherctore, &ci 

Anderson, Chief Juft'ice. The ftatute is joint, and therefor^ 
the cbniifee might have execution jointly againft them, if they 
have goods or lands jointly, and he might have feverdl executions 
of their lands. Whercfoifc, the caufe of their grief being feveral, 
fhey might have feveral aftions, if they would, or liave it jointly, 
bccaufe it is grounded upon a ftatutc which Js joint, which is the ' 
principal cibic of their grief. 

WALMSLEvknd Beaumond J w»/f-^; Fot although the ftatute 
be joint, yet the extent is feveral ; and the prayfcr of the plaintiffs 
to be rcftored to tlieir lands Is feveral: for pertdventHre the land 
of the bnfc, which is extended, is more than the land of the other } 
and it fliould be, unequal to reftore to them jointly I and every 
remedy ought to be accoirding to die grief and lofs, which being 
here ieVcral, fey rieafon of tlie. execution fued againft their feveral 
lands, the a&ion to redrcfs it Ihould be feveral. Wherefore, &c« 
Et adjournatur , 

Afterwards, in Mich. 38. li 39; £//s; it was moved again, and 
Anderson held }\is opinion as before, that the audita querela is 
well fued jointly; being grounded upon a ftatute which is entire^ 
knd one aflion of debt mi^ht havt fccen maintained agSinft tiiem 
iipon thht ftatutc.-7-But W ALMS LEY, BeAumond, and OWen, i 
contra. Becaiife it is herfe pretended that the ftatutc was nevet 
good, being fealed but witli one piece of wax, and fo the exccutiori 
^inft them was always tdrtious-, wherefore for this wrong they 
ought tb fever in the i^ion to have it rcverfed, die tort being to 
them feverdl : bUt if the ftktiite were once good, and aftcn\ard8 
tcleafcd, and exiecution fued againft the relealc, there petadventure 
it ftiould be otherwifc, becaule it is there grounded upon one en- 
tire caufe. Whetcfore thi$ fuit here being joint by them, wliich 
ought nbt to be^ it was adjudged that the writ thould abater 

Hunt againft Singleton* ^a" 37» 

Hihuy Term, 38. J?/ik. RoU tSij^. 

'TRESPASS: Upon fpecial Vcrdift the cafe was. The t)edn ^^Aletfeby tfit 

Chapter ofPauTs being feifed of 1 mefTus^c in St. FoJler*s parilh Dean andChap. 
in LottdoJiy 4. Ediv. 6» let them to Harrrave for fortyycars, who af- ^ *^ St. Paurt 

l»^ the houfe bcioj in leafe to another, is void, by 13, » 14. Elia, Poft 554. x. Wood Con. tip 

CsiOi Eliz. Part II K k figned 



474 ^^^ Term, 38. EUz. in C. B. 

HoHT iigncd his Icafe to R. Eales. Afterwards pMlesy 20 ERz. let tW(X 
«caijf/f chambers of thcmeflviage to Robins for twelve years, and afterwards 
iKcLEtoN* £^ig^^xtcitL\\gHargrave*s leafe, furrenders it to the-D^^w andChap^ 
let. They afterward, reciting the furrendcr, let the meffuage to 
Eales by thefe words : "all their faid mefluag^, or tenement^ 
*• with the appurtenances to the fame belonging, or in any wife 
** appertaining, by the faid Eales now occupied, and all other 
** rooms with the fame now occupied, and now in the tenure of 
" the faid Ealesy between the meffuage of /. 5. eaft, and of L D. 
•* weft, and fo much in length, for forty years." 

The Jury found, that thefe rooms were then in the tenure 
of Robins^ and not of Eales ; and that .the nether ftory of the faid 
meffuage was between the faid bounds, but not thefe rooms ; and 
after the Dean and Chapter let the rooms to the plaintiff for forty 
years, who entered and was oufted, &c. Etjt fuper totam materiamf 
i^c. — And it was adjudged for the plaintiff. 

Cro. Car. i^o. NoTE. I colleftcd this Cafe out of the record delivered to me 

Amc, x6. soo. j^y ^{^ Brownlow. The reafon feemeth to be, that Eales had not 

the rooms in his poflefiion at the time of the leafe, although he had 

the reverfion ; but they were fevered for the time, and paflcd not 

by the leafe (a). 

{a) This C«fe was argued a fecond tjmf , and adjudged that ihe kafe wis votd« Poft•^ 
564. 



p 



Trinity Term, +75 

.3S1 liiiz- in the Queeii^s Bench. 
Sir John Pophamy Knt. Cbkf Juftice. 
Sir Francis Cxawdy, Kntk ^ 

John Clench, E/y. > Jufices. 

Edward Fenner, EJij. J 

Sir Edward Coke, KnI. Attorney General. 
Thomas Fleming, Efj. Solicitor General. 

Wright againft Wright/ C^,^ ^^ 

Trinity Term, 38. Eliz, Roll 628. 
^ROHIBtTION* tiport demurrer the cafe was, that the The teOce of a 
hiHiO^oi fVinchefterYizA lands within a parifh, andprefcribed^»^op"^y.P'«- 
innon decimando (as it was agreed that a fpiritual 'f^'^'^^^'^^^^^l^ '^'^ ^^ 
taight), and let them to a lay perfon for years ; and, Whether thispo^^s^/c. 511, 
lei&e fliall pay tithes to the parfon or not, or fhould hold the 579, 
lands difcharged^ as his kitbr held it? was the quellion* /'7^<fi4Roii.Abr.65|. 
^fl^» 277. 2. Co. 44<b. 

I. Leon. 248. Moor, 425. 619. Ld* Ra^m. 242, 3. BUrr. 1277* 

Sir Nicholas Bacon's Cafe, Case 2. 

t5 EPLEVIN\ The defendant ptead^d, that the property of*tlie3^epicvin, 
"" beafts tern fore captionis was in Lord North, I flue was there- wiricM. 26. 
upon joined ; and it was raoved^ that this was not any plea ; but Show* 402. 
thcrcftiotildbc a repleader. And ruled per Curiam, tliatit wasaf*^*^' 5- S4* 
good pica. r,iU2^.Hc«.b.pl.is. ^a"?^ 

Sherington againft Fleetwood, Case 3. 

PROHIBITION for tithes PoPtUM, C. I. If land be over-^J;;<^'^«^'^J.^"d« 

^ flown with. water, and afterwards gained by induftry, tythes^^j'^^^j^^J"'^^*^^ 
ihall prefeiitly be paid thereof, although it had been overflown, vtrted into me»* 
time whercofi &c. So if land be full of thorns and bufhes, fromdow,fhali//»«i/, 
lime whereof, &c. and it is grubbed up and made meadow, or^'*»yb?^y^'*^^^* 
arable bnd, nrthcs (hall be prefcntly paid thereof, notwithftanding2--inft. 648.656. 
the 2. Edw, 0. c, 13. For thofe lands cf their own haturc were ^^*^**> ^3^*909- 
not terrcn, bur by negligence or ill hulbandry became fo. And g^^^l, '*^' 
the ftatutc doth not intend, that tithes fliall not be paid within Frtcni. 335. 
fevcn years after the manurance, &g. but of fuch laud which6. Mod. 96* ' 
was merely barren, and made good by foldage, or other indullrious ^^^^^- ;«>• 
means, — ^And this was agreed by tub othbr Justices. Bu!1«^*Ti.^^'* 

T. Vcfcy, 1 1 ^. Onflow's N. P. 184. i. Bl. Rep. 40V 

PopiiAM alfo faid, that it hath been here adjudged, that tithes R^kingi. 
fliail not be paid for rakings, unlefs they he foul takings, Poft/yoa. 

Frcem. 335. 

The parifhioncrs alfo prcfcribed, that he ufed to pay one penny Tithes of one 
for every milch cow, in fatisfaftion for the tythe of milch -kine and t;'«n8 ca»»^« ^ 
beafts agiftfcd, which was moved not to be a good prefcription : Ij^^^^^ ^'J*^* 
for tithes for one thing cannot be tythes for another. But if he ^^5* ^l V 
had prcfcribed, that he had paid the penny for all cows and beafts i.RoU.Abr.65i. 
agiftcd, that peradvcnture had been good. And this diverfity was 
fo ruled in the cafe of -Dr. Lewes : and of that opinion wwc the 
Court here. 

K k a Then 



47^ trinity term, 38. Eliz. In B. R. 

Shfrinrton Then GoiIfrey moved, that no tythcs by the law arc payable 
arainjl for bcafts agifted, and fo is the Natura Brev'tum, 53. C— But all 
FiKETwooB. THE Court held, that for bcafts agifted for hire, or for dry cattle^ 
fo?lbrt*or'^for ^^^*^^ ^*"^ dcpafturcd to be fold, tithes fhall be ]paid : but for dry 
/alarettthlwc.^?^^^^ ^^^^^ for the plow, or to be expended in the houfc, no 
i.Roll.Abr.648" tithes Ihall be paid for them. Scd adjournatur. 
£. Leon. 27. Moor, 278. Bunb. 81. Frccm. 335. Cro. Jac. 576. 5.Abr. 55. 

CAi* 4- • Ewer againjl Hayden. 

Trinity ^erm, 36. Eiiz. Roll 559. 
A man ha* TTxEIiT tor rent referved upon a Icafe. Upon a fpecial Vcrdift 
houfcs and land 1^ the cafc was, that one Hayden being feifed in fee of lands and 
Md h^ufts in 5 J^o"% ii^ Lawtorty in the county of Oxford, and alfo of houfes and 
anddcvifesVis^^"^ ^^ f^^ffordj in the county of Hertford^ let the houfes and 
Jbw/« and land lands in IVatford^ in the county of Hertford, to the defendant, and 
in A. with all afterwards devifed *' all his meiTuages and lands in Lawtofty in the 
^^^^ '''and " ^^""^y ^^ Oxford, and all his otl;ier lands meadows and paftures 
paftu^n A. " '" fVaiford^ in the county of Hertford,* to the plaintiff: and, 
TheAw/*f in^. Whether the houfes in IVa'tford, in the county of Hertford, pailed 
do not paf$ by by this devife to the plaintiff, by tliefe words, *' all other my 
thisdevifcj for.i lands, &c. ?" was the fole queftion. 

«preMi«r"' . 'l^^^^^E^? moved that thole houfes paffed ; for in gratits, cfpc- 
ihall not be ex- ci^dly jn devifes, the expofition of the words fhall be according 
tended by im- to the common intendment of tlic grantor, and of the ley-vents : 
plication. as if one builds an houfe upon Black Acre, and maketh feomnent 
Ant' ^6^' ^^^ ^^ Black Acre, the houfe Ihall pafs ; and fo is the common courfe, 
n ei2 ^. ^^^ j^ ^ grant by copy de vir^ata terra, the houfe thereupon Ihall 
i.RoiLAbr^9,pafs : and fo is the common phrafc in the country, that a man 
M6ox' ^^'^ ^^ '^^' '^"^ ' tlierein is intended all his poflfcflions, lands, 

Owai,^74'. boufes, &c. In Andrews' Cafe it was adjudged, that if one brings* 
». And. 123, an eytilone firm<e, or a pracipe of lOO acres, it ftiall be according 
Cro.jac.22. to the ftatute-meafure ; but if he bargains and fells icxD acres of 
'•^™-+' land, that fhall not be according to the ftatutc-meafurc, but after 
Hob. "-7" * ^^ ufual account in the country. 

Noy,ii2.' Winter ? contra. I agree, if a man levies a fine of lool. of 

i.Bulft. 176. land, that the houfes ihall pafs by fuch afine ; as ^"^.Edw. 3. />/. 18- 
I. Burr. 51. fo by a devife, or grant of all his lands, his houfes fliall pafs. But 
^^lto\^.* '^^^^ *^ intent of the devifor appears, lliat he rcftrained the word 

1. Tcnn Rq>.' " /»«rf" according to the propriety of the word, vi%. arable land ; 
105. for he couples it with meadow and pafture, and fo ftiews his in-» 
Do'.ijl. 762. tent, that •' Imtd'' lliall not extend to all kinds. In the firft part 

2. Term Rep. ^f hjg will alfo, lic devifts his houfes and land in Lawton, in tha 
♦9 • 50*' county of Oxon\ but in the Lift claufe he doth not mention any 

houfes : and the vcrdift has found, that he had there land, mea* 
dowand pafture, fo as his will might be fatisfied. Wherefore, &cj 

Fenner, Jujilce, accordant. For his particular dcvifing of his 
lands, meadows, and pdftures, exclude the general intendment of* 
this word terra, and reftrains it only to arable landj and excludes 
houfes and wood. 

Gawdy e contra. The difference is apparent betwixt writs and 
deeds, or wills ; for in a writ nothing fhall be demanded or reco- 
vered but according to its proper fignification ; but in wills, or 
deeds, they fhall be taken according to the common intendment and 

Ehrafe : and this appears 32. Hen, o. Dyer, 43. wherefore in a-will^ 
y the devife of his land, all his houfes may pafs ; and fo here. 



Trinity Term, sS.EIiz. In B. R, 477 

PoPHAM act^rd. For if a man bargjiins and fells all his lands ^^**j' ^ 
in jD. all his houfes and wood there (hall pafs ; as it was refolvcd jj^^'^^ 
before the two Chief Jufticcs Wray and Dyer. And warrants ^^^ * 
of attorney arc always entered In placito terrier although houfes only 
or wood is demanded ; for that is intended by the word terra. But 
if a man feifed of three houfes and three acres of land in D, dcvife 
his land, and one of his houfes in D. there the other two houfes 
pafs not; for his intent is apparent therein, that but one houfe*-^°"-^'*^-SS» 
only ihould pafs. But here the words arc in the general,. as to the ^^^ ^^ 
lands in ff'atford, and therefore it fhall make the houfes there alfq 
to pafs. Wherefore, &c.' — But Gawdy faid, that in the laft cafe 
put by PoPH AM, all the houfes (hall pafs. — Clench was abfent ; 
Idf^ adjcuKnatur. — Afterwards it was adjudged, that the houfps in 
tTaifBrddAA not pafs, for the rcafon given by Fkkner, Po^* 659. 

Thornron //j-^/z/y? Kenip. , Case 5, 

Hilary Term 9 ^^. Eliz. JlpII g^^, 

A SSUMPSIT. Whereas /. S. was indebted unto him in lool. ^^oi^f^^^^^* 
•^ and in confideration that the plaintiff would abate lol. of that that thipUintiflT 
4kbt, and forbear the 90 1. refidue until Michaelmas next cnfuing, would abate 
he aiTumed to pay the faid 90 1. at Michaelmas to th^ plaintiff, ifpartof adebi,it 
the faid /. 5. did not pay it {a) ; and alledgcs in fjft that he abated ;;^^' ^^f"^^^ 
lol. of the faid debt, and forbore the faid lool. until •-McA^^'/wa^ abate without 
then following ; whereupon he brought his a^ion. Th$ defen- /hewing how, 
dant pleads, diat after this promife, and be ore Michaelntasy the Awe 251. 
plaintiff levied a plaint in London againll /. 5. for this debt, and 
caufcd him to be arretted thereupon. Upon this plea the plaintifF^^^' *^ ^^^ 
demurred, — Firft, Becaufe he ailedgeth, that he abated lol. andcro! Jafc. 503, 
dotli not fliew /-tfw, fo as the Court might take conuihnce, whc-Hob. 69. 
thcr it >verc a fufficient difcharge. And of that opinion was theSira.ss. 
whole Court, Fide 22. Ediv. 4. pL 40. 18. Edw, 3. Barr, 243. or 5/ C«m. 0*^49. 
247. — Secondly, Becaufe it now appears by the defendant's pleai^ 
\^hich the plaintiff hath confelfed by the demurrer, that the plain- 
tiff had not forborn him ; fbf when he fued him, it wa^ not any 
forbearance. 

Gaw^dy and Popham held it to be well enough ; for he hatlx 
forborn him the payment ; ^nd the promife is not^ that he fhal^ 
forbear from fuing him. 

Fenner and Clench ? contrti ; for it is in vain to forbear hin> 
the payment, whenhe doth not forbear to fuehim for it : and ih\% 
was the intent of the ajfumpfit^ that he (houJd not be molcftcd for 

it before Michaelmas^ Qc, 

(«) By »9. Car. 2. c. 3. where 4 man rote or memr^caQdum 0/ it ftaU be ma<fe 
pnderakct to anfwer for the debt of ano • mi writinj^^ and fi9,Qed by the paity to bv 
(her, no adion ^lall be brovi^t, ankfs feme charged therewith. - Cowp. 22 ;. 460. 

Ram aga'nifi Patehfon. ^•'^'- ^• 

Hilary Term i l^. Elite. Roll ^%z, ^ 

PROHIBITION upon the 45. £Ww. 3. c. 3. For that whereas heTImb«'--iws 
^ libelled iji^ the.fpjritual court for tithes of timber-trees. Theg^^';;;°^^ji,':;^ 
<?pfcndant (aid, that Aoic trees were long fince mortua^ arida^ ^' pay tithes, tho' 
jutrid^y fit only for fire-boot, andnotfortnnber : it was thereupon djccaycd and only 
demurred.— And aJl the Jus^tices (?QVH\i/Labfente) held, thatfi'f^''^"^^;-'^^ 
W titbc^ ihould |?c paid for thofe tre^s ; for being ov?i; the growth JfP^*^*^^^^^ 

K 1^ 5 ^^^\^o difcharg€d. 

Ante, I* 



478 Trinity Term, 38. Eliz. In P. R, 

Ram of twenty years, they were once difchargcd of tythes, and therefbf« 
•^«'-/' fhall always be difchargcd. 

ATiNsoN. Another point was alfo then moved, the fuit being for tithes of 
ii^Co^ l^a^sl.^^^^ loppings of the trees : and the truth was, thofe trees had not 
Cro. jacf 100/ been lopped for twenty years together, fo as then the branches of 
». Leon. 79. the loppir^gs were difch^^rged from tithes ; but afterwards they were 
Moor, 90S. loppea every feven years. Whether now tithes Ihall be paid for 
^*B^c Abr ^^^^^ branches ?— And they all held, that they (hall not pay tithes ; 
MooTfOoi.'^^ for as the body i$ privileged, fo grc thp branches. 
Plow(l. 470. b. II, Co. 48. b. Cro.Jac. lOo. 

Casi 7, Abraham a^ainfi Twiggt 

. Hilary Term, 38. Lltz. Roll 739. 
A gift to a man, A VOWRY foF rent. The cafe upon demurrer was, Peur Dor^^ 

and to ''bhbiin /a ^^^ ^,^3 feifed in fee, and made a feoffment to the ufe of him- 
Zl'Jir7{-\ f^'f» a"<l l^is heirs of his body ; and for default of fuch iflue tq 
aneJiatein fu- GaMel Dormer ^ZTid to his heirs males lawfully engendered ; andfor. 
/«/>/*, thoM;. default of Aich iffue, to the right heirs of Peter. Peter Dormer 
mitwd by way of dies without iffue ; Gtfir/f/Z)cr»i<?r enters, and dcvifcth that rent 
Ante o ^^^ ^^ ^^^** ^^"^ ^^ ^^^ avowant, and dies having iffue : and, Whe- 

Moor ^^z± ^^^^^ Gabriel Dormer by the limitation of this ufe fhould have a fee- 
7.00*41. b. fimpjc, or fee-tail ? was the quell ion. 

Co. Lit. 20. 27. Exception was taken to the avowry, hecaufc it is not fhcwa 
I. Co. 103. h. when the dcvifor died ; fo as it might appear that this rent was af- 
I And^*'^^^^' terwards ixxQ.—Sed non allocatur. 

Litt. Rcpf 344. For die master it was moved, Whether it were an eftate-tail in 

Plowd. 541. ' Gabriel P for although it be not limited to the heirs of his body,' 

ciib. ufes, 18. yet being by way of ufe, which is expounded according to the in- 

3. Leon. 5. jgj^f^ and'as wills, it fhall be conflrued as an cftate-t^il ; as 9. EJw. 3. 

T^Z^iV' '* ^^^''^" ^^- ^ 5- ^^«- ^- /^/.6.— Bwtali THE Justices (Popham 

%. Ld. Haym. (^bfcvte) held, that it was an cftate in fee in Gabriel Dormer : and 

>T46. although it were by way of ufe, it differs not from other gifts by 

deed, and fhall not have any other conftruftion : and it cannot be 

an eflatc-tail, bccaufe there is not any bqdy froiri whom this heir 

male fhculd come. And fo it is in cafe of a devife, as appears 

9. Hen. 6. pL 25. Wherefore it was then adjudged for the avowant. 

Casi 8. Kclfock agdlYlfi NicholfOH, 

Michaelmas Term , 37.^38. Eli:s . Rcll 387. 
icutorf dX?/T^ ^f ^^ obligation. A fpeclal vcrdift was found,^ 

VhTrdducTo^ ^^^'*^ ^^^ plaintiff a:id one Stephen fon^ as executors^ to /. 5. had 

the tcftator to an obli<5ation, wlicrein .V. B. ^ras obliged unto their teflator in 
« iian?tr in 1?- 20I, Stcphfufofi^ oiic. of thc cxccutors, ill fatisfaftion of his ptopcr 
tlsfa^ionof his ^cbt to the defendant, by words only d^dit et dclihcvavii. that oblj- 
T^^'^lT^^xt 8^^^^^"^ ^^ ^^^^ defendant, and died : the plaintiff, being furviving 
ciftor cannot re ^^^^'^*^^f» brought a dctlrMC for this obligation, ^are P F^or tliQ 
covcricbackby JufHces did not give any great opinion therein^ but feemed to be 
rf«/Mx.*. divided (a), 

Koy, 36. Dyer, 5. 1. Roll. Abr. 46. Moor, 422. Dyq-, 23. s. Bac. Abr. 395. 655. in notes, 
(«} Adjudged for the defendant that tlje a<5lioQ did pot lie. Fofl. 496. 

_ c*.F 9. Blofield's Cafe. 

Theefcapeof 




♦ < u.J.u. »!""t^ 



Tnn ty 1 crm, 3^. Eliz. In BL R. 479 

would upon this matter have maintained an audita querela ; be- Biofuld § 
caufc now the one is difchargcd, not by his own wrong, but by the ^^^ ^***'„, 
(hcriffs aft, of whom the party is put to have his remedy.-— But g * ^^^' ^^^' 
Gawdy and Fekner held, that this was not any caufe to dif- 33.Heii.s.pl.i8. 
chaigc him 9 Poph am and Clench abfentibui, 5* ^o- *6. b. 

^ Moor, 459. 

Blinco againft MarIlon„ Cas« 10. 

PROHIBITION. And furmifctli, that he was parfon, and die a vicar endow- 
^ defendant was vicar of the fame church, and fucd him in court J^ ^ ^}^^ *"jj 
chriftian for tithes, upon an endowment, that the vicar (hould not pay riThcs of 
have the tithes of all the lands within the parilh ; and alledgeth his gicbc to th© 
that he pleaded there, that he is parfon imparfonee there ; and that parfon. 
the land, whereof tithes arc demanded, is parcel of his glebe ; and *'^^*' 578. 
that they of the fpiritual court would not there allow of this plea. *-RoU-Abr.335. 
And it was held clearly, that a prohibition lay upon this fqrmife; Moor,457.9io' 
for ccclcjla desimas fol'uire ecclcjiannon debet. — ^Tanfield faid, That ,|/oo. 14. a. 
here lately this matter was in gueftion betwixt Young and the par- 2. Bl. Com. 31. 
fon of BoxUyy in the county of fp'i Its ; and adjudged, that no tithes 5* Bac. Abr 79, 
IhaU be paid of glebe-land.— But Poph am faid. If the vicar be Wood* xmu 
endowed to have all the fmall tithes within the parilh, and the '^'' 
parfon make a leafe of bis glebe-land, the leflee fhall have the 
fmall tithes arifing tlicrefrom to the vicar, and the grofs tithes 
thereof tg th^ lelTor, Which was agreed per Curiam^ 

Sir Antony Maynie againft Scot;, ^^** "« 

Eafier Term, %%, Elifi, Roll ±2. 

ti'^RROR of a judgment in debt upon an obligation In the com- ^** ^ ^^^ 

^ mon pleas {quod vide ante, hi 4 CO.). The condition was, to ^of !>««*>"»«"«• 

r 1 • 1 • V « ^ • 1 •-r^i o» • covenant oy 

pertorm the covenants withm lugh an indenture. The covenant, icflbr,thatifiho 

wherein the breach was affigned, was. Whereas he had let that land leffcc furrtudei 
to Scot for twenty-one years, he covenanted, upon furrender of the at any time d»r- 
firft leafe, to make unto him a new Icaie for twenty-one years, ^^^^ ^^r ^ 
The defendant pleads thereto, that Scot never furrendered his leafe ]J^f?afc, *xho 
unto hin^. The plaintiff replies, that the defendant had accepted icflbracctpua 
^ fine fur c^nufance de droit come ceOy ^f, of Sir yofin Scavage aud fipe of the pre- 
others, • ^ • . • - • - « . . . , -..«•. ^.. .:. 

tor 

inurrcd ; 

leafe, had offered to raake a furronder,fo to ptrform as much as gn not (hew that Hal 
his part was to be performed, although the other could not make offered to fur^ 
a leafe according to his cove^'iant. And it was thereupon adjudged ^^^^' 
for the plaintiff; for the dcfcntjant being dlfabled to make a leafe, jj^^'^^q^'' 
he needed not tender the fqrrendcr unto him. And error being poph^i^^.'**'*^ 
brought hereof, it was alfigncd only in the point and matter of law. Moorl 45a. 
Tanfipld movod, that the judgment was erroneous ; for this »• And-iS^ 
covenant to make a new leafe is not to be performed, unlefs U{)on BaW?i2^' 
a former aft to l>e done by the leflee, v/z. the furrendering, which Hard. 3S7. 
at leaftwifc ought to be offered j becaufe there ought a promptnefs 2. Roll. Rep. 
to appear in him to do that o\\ his part tiiat is to bo performed, 347- 40^* 
although the other cannot make the leafe on his part ; and in proof ^l^^^ ' ; 
hereof relied upon 32. £^w. 3. " Bar.^' 26, W 34. Edw, i. ** Deh^'' Ray, %l.: 
i68. — ^But all the Justices refoked, without any great argu- i.Co. 15. 
|U€nt, that in regard the defendant hath difablcd himlelf by this »• Co. 59. 79- 
fine to make the leafe accprdinc to his covenant,^ and the plaintiff pj*"^**" **'*" 
it nQt to make the furrender, but with an intent to have a new ,<^^o!^49. 

1^ 6»^. Abr. 417b ». Com. Dig. 466. Cc\yp. 125.. D005I. 272. i* Term Rep. 2» 




48o TruiityTcrm, 38. Eli;;, |n B R. 

Mayk« leafc, which he cannot have ^ it would therefore be in vaii^ foe 
'smu ?^ ^° ^^^^ ^'^ furrdnder : but the cpvign^^t is brokcH of itfclfT 

Wherefore thp judgment was ^fiirn^ed. 

Ca$» 11, ^Partridge againft Naylor. 

Eafter Term, 38. Elm. Roll 299. 

S'^Maf c ***** p^RROR of ^ judgment in the coirimon plfas, in an aftion upon 
one fingle pcV . ^c l-.^ 2, Philip isf Mary^ c. I2.againll three, for iir\povnding 
©ahy only can * diftrefs in feveral pounds in three feveral hundreds. The cafci 
be recovered, w^s, that three diftrained ^ flock of Iheep, ^nd feverally impounde4 
tho* feveral per- them in three feveral pounds in feveral hundreds. Upon not 
Smmrttinr"the S^^^^X pleaded, and verdift found accordingly, damages were aflTef- 
offcnce. *^^ by ^^c j^ry ^^ 40s. and thereupon judgttient entered, that every 

Ante, 331. of them fhould forfeit 5I. (being the penalty given hy the ftatute) 
Gould. 145. ana the treble of 40s. againlt every ot them.— And it was afligne4 
Moor, 453. for error, that there ought to be' but one ^1. againft them^ all ; and 
^Tlk** 8*' ^^^ °^^ trebling of the 40s. againft them all ; for it is but one di- 
riark^'cafe. ^^^^s, and oneoffence in them all againft the ftatute. — ^Andir^ 
Cowper,6io! Hilary Terniy 39. Eliz. beihgmovcd agajii, z^U the Court refolfved^ 
that it W2W erroneous : and for tliis caufe judgment was revprfcd. 
Case 13, Gybfon againft Garbyn. 

Hilttfy Term, 38. Eliz. R9II 1060. 
9^^iy\r\n^. A CTION oh the cafe upon trover and converfion of ^xteeri 
ft!tewUhouiDo. broad-cloths. ^ The defendant pleads, that before the time 

ficeisaconver- ^f the trover and converfion, one Jmrrice was poirelTed of thofc 
fion ? goods, and fold them to the 4efendant i and before he had notice, 

Cowp. 448. that they appertained to the plaintiff, he fold them to /. S. Thq 
*• ^^^ ^*P' which matter, &c. And it wa^ tliereupqn demurred. 
CAit'i4, Weft againft Monfon. 

Hilary Term, ^S. Flix. Roll zzSi, 
V/-^***^ *" '"' TERROR of a judgment in an affife in the county of! Lincoln, be-* 
S^Mr!/' ^^^^. Gawdy and Owen, Juftices of Affife there. The aflifc 
findtKhet'^ w^ againft /fiy?, who ple;%ded *^ nul tenant Je frank-tenement ^ named 
defendant was in the writ ; and if named, there was not any tort, &c. The jury 
twiant and c/i/. found, that ** the plaintiff was difleifed by the defendant, ^;-o////ii. 
{rff^altho '^h " ^'^^"^^f^PP^^^^^^ nifi verba contcnta in voluntate Rohcrti M$nforf^ (which 
docs RotXfd *^ ^^^y fo""^ i^^ ^*^^ verba) " conveyed a good cftate in the lands tq 
that the plaintiff V thc defendant ; and thereupon they prayed the difcretion of the 
was>;.Wof a •* Court.'* '" Thereupon judgment was given for the plaintiff, and 
JrtthoM', for prror thereof brought. 

iendi'^lrfdihr."^'^^"^ The firft error affigned was, becaufc the aflifc 

vfox6ifubj9insd ^^^ "^^ enquire of the tenancy, which ought to be in every cafe, 
jcjcaed. ' unlefs wlicre the afiife is taken in right of damages ; as 12. Juife, 10,' 
S.C Poph.no. 29. Mfe, 4. II. Hin. 6. pL 46. 37. jijjife, i^. 40. Mfey 29, 
».RoiLAbr.6y3. ^?« -^A 20. 23, y^Jifty 2. 50. Ed'iv. 3. pi/ II. And although 
M«)r, 431. ^he yerdift fiiids, quod ipjifytt tenens^ yet becaufe it is not faid librri 
Cowp^V?^* /fww^«/i, it is not good ; for fo it m^y be faid of a tenant for years, 
1. Acim Rep. o^ by ^^^SJt. And the conciufion, protdt per breve fupponitur^ will 
141, ' hot help it ; for that doth not prove him to h^ tenant. The ver- 

dict is alfo imperfeftly found ; and then the point ought alfo to 
haye been better examined by the Juftices of- Aflife ex officio, as 
^2. Hen, 4. pL 2p. is • and becaufe they did it not, it is erroneous. 
— Secondly, It is not found, that he'wa^ f^ifcd of any cftate, fo as 
he might be diffcifed. Wherefore, &c. 



Trinity Term, 30t Eli2. InB^R. ^ 48^ 

But all THE Court rcfolvcd, that in regard there was but one Wiit 
tcnanc named in the affifc, and the jury hath foqnd that he diffeifed ^^«»'!^ 
the plaintiff, Jnout per breve fupponitur^ it is thereby to be intended, **«»»<**• 
that thi plaintiff wa^ fcifcd ot fuch an eftate, which might be clif- 
feifed {a)^ and that the defendant is to be intended always tenant, («) PofleflioQ 
in regard there is not any other named in the writ who could be ander a judg- 
tcnant : but if there had been more defendants named in the writ, JJJ^|*^n^gj 
then they ought to have enquired of the tenancy. amount to a 16/- 

And all the Justice^, except Qawdy, refolvcd, that theM«ofthc/r«i. 
vcrdift was found for the plaintiff: and that which came after ^'''* 
the mji being imperfeft, (as it was agreed clearly by all that it was,^^*^* ^®'' 
for they found not, that Robert Monfon was at any time feifed of 
that land, that he might make a will, nor that he made any will), * 
it was idle and void, and judgment fhould be given upon the pre- 
ceding verdift, as in tlic cafe of Sir Rowland Haywardy Dyer^ 372. Cro. Cjt, %\%. 
And the verdift being pcrfeft before, that which comes after the-A"'«»4i* ' 
niji being idle and void fliall never hurt it, but judgment Ihall be**^^* ^* 
given upon the verdift which is good : but where that which 
comes after the nifi is material, and is well found, the Court ihall 
then adjudge as well upon that, as upon the refidue of the verdift. 
And although the verdi£t was imperteft, and the tenant might have 
prayed a certificate of ajjife to make it more fall, fo as judgment 
might have been given upon the entire verdid ; yet diat needed not 
be awarded by the Court ex officio^ but they might well have 
adjudged upon that which was found. Wherefore the judgment 
was affirmed, againft the opinion of Gawd Y. 

GAwpyfaid, that he always held |the verdift to be imperfeft, and 
rfiat no judgment ought to be given thereupon. But in refpeft he 
was informed by Owen his companion, that the opinion of many 
pf the Juftices, upon conference with them, was, that the firft part 
of the vcrdia was perfeft, and that which came after the »/^was 
void and idle, and that judgment ought to be given for the plain- 
tiff, he aifented thereto ; yet in his opinion held, that the vcrdift 
was imperfeft injJl; for the jury intended not to find the one 
part without tKe other : and it is not a pcrfeft verdift, for it is all 
HI one entire fentence ; wherefore they ought to have adjudged upon 
jdl together, and fo not like to the cafe in Dyer ; for there was 
fin abfolute vcrdift given, and that which came after was idle. 
Whcrcfpre, ice— ^ut notwitbftanding the judgment was affirmed. 



xrirjtv 



*** Trinity Term, 

38, Eliz. In the Common Pleas. 
fS/r Edmund Anderfon, Kfit. Chief Jujiic€^ 
Thomas Walnifley, Epj. x 
Francis Beaumond, Ef^. I Jujiiceu 
^ ^ Thomas Owen, Efq. J 

Sir Edward Coke> Knt. Attorney General. 
Sir T. Fleming, Knt, Solicitor General. 

CAf» 1. Childes agatnft Wefcot, 

See thucaft ' ■ ""HE ci^fe was now recitetj to be — ^Tenant for life, remain- 
aiNvEafttr, I dertofourotliersforthcirlivcs. The Icffor in reverfion levies 

Tenn^pLal. v"^ a fine fur cQnufance de droit comede cc9^ t^c, to the tenant far 
P-4?o*» life, and to one of thofe in remainder, to the ufe of the tenant for 
life, for his life, and^fter to the ufe of the other in fee ; the tenailt 
for life dies ; he in remainder, who took the fine, dies ; Jtnd, Whe- 
ther his heir fhould have that part ? was the queftion. And i% 
was refolved bv all the Court, tliat tli^t part ihould dcfccnd ta 
his heir, and movild liot furvive, 
A icafeby huf. But itwas then moved in arrcft of judgment, tliat he declares ia 
Ivnd and wife an ejcfligne firmly of a leafe by baron and^'w^, and fhews not that 
ir.iy be p!caded^t was by deed ; and without a deed it cannot be a leafe of the 
^ithouifi>cw»rg^^^^. f^j. j^gj. acceptance qfthe rent upon fuch a leafe cannot mako 
JiJ^" ^^ it good {a) \ and in proof thereof was cit^ Dyer^ 91^ 21. Hm,S^ 
Anie',ii».45«,/'/- 2. 1 5- -^'^'W- 4- P^' ^3' ^i. Hen. 6. pL 24. 
470. Walmsley, Although he counts not of s^ deed, yet a deed 

^. Co. 6j. piay well be intended. 

3. Co. 21. Anderson. That cannot be, hut he ought tp count thereof " 

Plowd. 431. precifely, if a deed be necefTary. 

C*^ c2 "- ^^^^ afterwards a 'precedent was fliewn unto them, Eafier, 33. 
(tfT'stdvide^' Eii'z, Mcfciy v, Gilbert^ where hepiade his count of a leafe by haron^ 
Cowp. 401. andy>/;ir, and* mentions not any deed, and yet adjudged to be good. 
I>onsI* 57r And DiiltW faid, that he was a counfel therein, aiKl that then this 
3. Term Hep. exception was taken thereto, and that then ar^other precedent was 
^fh^wn in the cj^ueen's bench, Vi^^s v. fflikers^ vid there adjudged 
$. Co. 61. ^jgood, — \Vhcretore,upontheferealQnsandpyecedcnt&(hewninCourt,^ 
(being the laftdayof the term) the plaintiff had judgment to recover^ 

Case 2. Sharp aga'irjjl Sharp. 

jt 11 feifed inT ] ^^^ ? fpeci^l verdift, the c^fe was. That 7. S^ being feifcd of 
fee, *ard being ^^^^ ^^ ^^^^ being upon the landj demjied the land to the 
on the and, he plaintiff for life, ct quod nulkt al'ta ddllHratio fiijina fa^a fuit\ and,^ 
demifed it ^ty Whetlier this were a good leafe for life, bcipg but by words only 
hTIIw »fj/^r "P^"^ the land ? was the cjucftion. 

4diven •//'{/!*» Anderson. It is a good livery, and fo it hath been held to be 
wasmaJt, Ad- bcforc this time, and fo 1 can Ihew you. But the cafe ia better, 
jndgcd that this for ^h^ jury find quod dcmtjit for life, b«?ing upon the land, whicli, 
IS not a goodjs )^^ expre'fs finding of the leafe ; and although it be afterwardsi 
Ante, 481. found, qud null(^ (ilia liberatio feijitue fa^la fuhj il is not material : 

Moor. 45S. 6. Co. 26. a. Co. Lit. 48. b. 38. Afl*. |« V.I^<41* Ab*. l\ Qa Cq. i^ Qip, Jac. 8o^ 
J. Com. Dig, 168. I. \V9od'§ 909. ji$. 

w4 



Trinity Term, 38. Eliz. In C. B. 483 

and in the firft words there is a good livery and leaft^ intended, 8rar» 
and it fliail be good in pleading, a muitifortioriy in a verdift. fi^ . 

Walmsley. True it is, by the lirft words, ifno more had ^"'^**^ 
been found, it ihould be intended to be a ^ood Icafe, and a livery 
in h& to have been mjide : but when the jury find further, quod 
nulla alia liberatlo Jeifimt fafla fuity they have tliereby left it to our 
judgment whether it be a good livery or not ; which it is not, for 
Jivcry is a folemn thing, and'ought~to have an external aft, and 
not words only, fo as the intent of the parties ought to be appa* 
rent to have a livery. For Bra^on and Britton bold, tliat a tree*^ 
hold cannot pafs by words only. 

Owen a id Beaumond accordant^ For livery is an adual thing, 
and ought to be made by fome aft done ; and words upon the 
land, *' I let you this land, &c." cannot make the land to pafs; 
and the verdift is plain enough, tliat they did not intend any other 
livery, than by. words only. 

Anderson. If there be words ufed upon the land, to Ihew 
the intent of the parties to make the land to pafs, it is a good live* 
ry ; as- in dower ad oftium eccUJta^ livery within the view although 
nothing be done, but words ufed only, yet the land Ihall paf$ 
thereby. — Bvt, notwithftanding his opinion, it was adjudged for 
the dcfeudaat,. that it was not any leafe. — Note, x!tM fajcant 
Glartvil faid, fuch a cafe was between Swan and Sharks, 

By t9« Car 2. c. 3. do leafed, &c. either or note in wriflng, figned by the party, ftc,. 
freehold or for (crm of years, (ball be aflign- See a* Term &ep» 739* 
ed, grantui, or farrcQdered, nnlefit by deed, 

Huit againft Cogan, Casi 3. . 

•THE cafe was, I'wo perfons recovered feverally againft onc^. upon a for 
* in debt. He wiio had the firft jud^nent, fued firft an //ey/V,cond#/^#,wh«- 
and had the moiety of his landdclivered in execution. Afterwards, ^'^ *^^ ^^'^ 
the ochier fued an elegit, and the IherifF prayed the advice of the^^|||^^^ 
Court, whether he mould deliver the moiety of the entire, which «niaiiri^moie. 
was all fhat remained, to the debtor, or but the moiety of the moie- ty of the defen- 
ty, W2. the jnoiety of that which remained to the debtor ? dants lands i 

And Anderson, Beaumond and Owen held, that he ihoiildHard,a5.i7. 
deliver but the moiety of that tnoiety which he had at the time of** Brownl. 97. 
the writ awarded. But they advifed the fherifF to return that fpe- 5^,]^*°^ *^'* 
cial matter. Fide iq. Edw, z.^ '^ Execution^' tliat.the entire pougl^. ^73. 
raoiet)- fhall be delivered. 

Crofs agmnft Powel. Ca« 4. 

r\EBT. The cafe was, A deed-poll was made between CV*^ a deed poU,w«- 
^^ and Ptnvel^ whereby Crofs covenants with Povjel to aflure un- tuaiij tU/iJenJ, 
to him fuch land, and P^^w^/ by the fame deed covenanted with »»go<xl, and wiu 
Crofs to pay unto him for it 40I. P<?wr/ delivered the deed firft to ^PP^ *" ^' 



111. 



C*rtf/}, and Crofs afterwards delivered it to Powel, Crofs brings ^^^^^^^^^ 
dcBt for this 40I, And all this matter being difclofed by pleading, Poft. ^*y, ^^g, 
it was tj^ereupon demurred by the defendant, t)rctending, that bY86a, 
this re-delivery of the deed unto hin^ it had loft its force. — Butalli-it. 550- 
THE Court held, that it is a ffood deed to both; for here is ^^'^^'if!' 
writing, fcaling, and deliverer, and the delivery thereof to thede-^* ^ ^^ 
fendant is not material: for if a deed be delivered to bq cancelled, 
to the party hiinfelf, yet if it be not cancelled, and the other gets 
it again, it remains ^ good dccd^ Wbe^refprc it ^as ^diudgcd fo? 
{hcj)l4iqtiff» • " • - ' ^, ^ 



4^4 Trinity Term, 38. Eliz. In C. B. 

CAt» 5- I Stephens againft Eliot. 

AfcafedcKreredrJECTiONE FlRMiE of lands in Stepney y in the county of 
uponthcland^by #-* MiddUfei^ by Edward Afcue^ Upon the evidence it appeared, 
Ui^3i^"*^^ £A«/^rrf AJcuty the lefibr, being in the county of Lincoln, dcli- 
pofleflxon^ U ycred a letter of attorney to deliver this icafe upon the land. But 
void. it appeared further njpon examii^ation of the witnefles, that the 

Ante, 446. ieffor in the county or Lincoln^ being out of pofleffion of the land, 
Co Lit. 48. delivered tlut l^aie to the attorney as his deed, to the plaintiff's 
3. Co. 55. nfe, and jAerwards the attorney entered into the land, and accord- 
a. Rd^Abr'i ^^ ^ **** vvan-ant dellvciied it to the plaintiff upon the land. — Yet 
3*Bac.Ab.*ioo!^^^ CuRiAM it was held to be avoid leafe; for it was delivered in 

1. Wood Con. the county of Lincoln^ when he had nothing in the land. And 
651. 715. 725. although it was moved, that the firft delivery was void, therefore 
Shejvroucb.67.the fecond Jivery was good j yet they held it to be void : for al- 
393. c^. *^* tlipugh the firft be void, to pais a thing, yet it is his deed by the 
i,Tcr.Rcp.739.firil delivery^ fo as it takes thence its cffcnce: wherefore the fecond 

delivery thereof was void. 
Copyhold lands SECONDLY, It was mpved, admitting this to be well delivered, 
vCTcTb'^e'^al^^^^ the land being copyhold land, and Idt by a copyholder, whc- 
iwwtatwmrooo*^^ die plaintiff might thereby maintain an ejeefione firm^ at the 
law. common law ?-—AndallTHECauRT, excepting Beaumond, held, 

Ante, 224. 4^9. that he could not. For the nature of copyhold land is to be reco- 
^'oft. 524. S35..vered only in the copyhold court, by plaint according to his cafe, 
^dJiJiJlonul and the law takes not any conufance of them, but as tenants at 
9! Co. 75. b. 'will; and although their cuftoms are pleadable, and allowable at 
4- Go. 26. our law, yet no aftion can be maintained for them at the common 
Cro. jac. 403. law, nor by any writ of tlie queen's. But Beaumond doubted 

Moor 1x8.272. ^^j.^^f^ . 

539* S*9« 

Giib. Tcn.213. Thirdly, If. tenant in tail of a copyhold furrender, whether 
Surrender of a it be a difcontinuance, and ihail take aw^y the entry of the iffue ? 
copyhold byte- — And,PER totamCuriam, it Ihould. For being admitted tha( 
dff^ntuluancef ^^ ^^ tenant in tail, it is to be admitted alfo, that he mjiy make a 
Ante, 148. ' difcontinuance, which cannot be by any means but by furrendcr i 
Poft. 717. for he hath not any other courfe oi conveyance. Wherefore, &c. 
Vide contra, 4, Co, 23. 1^1000358.753. Co. Cop. 78. 2. Bdc. Abr. 95. C«vrp. 702. Ante, 148. 

^^" ^' Wright againft Penry. 

^^'^[^{^'-pNTRY SUR DISSEISIN of a dilfeifm made to himfclf. The 
rnadHorTof da- plaintifFprayed a writ o{ ejlrepement \ and it was^oubted, whe- 
r ages. ther he Ihould have it, becaufe he is in this aftion tg recover all 

Ante, 393. his damages. — But afterwards upon good advice the writ was 
1 oft. 774, grafted ; for otherwife the plaintiff might have his houfes and 

2. Inft. 328. woods defaced and deftroyed, and turned to his remedy to recover 
Rcgift. 47. jj^ damages againft one, who pcraUventure hath not (o puch in valuc^ 

Moor, JOG. F. N. B. 60. 5. Co. 115. See the 6. Edw. i.e. 13. The moft ufual,way now of pit* 
venting walie is by application to the Court of Chancery. 3. Bl. Com, 227* 

CAiiy. Anonymous. 

An archbiihop'^OTE, thtit frrjcartt JDaniei hidy he had feen this precedent; 
rhali be fined for X^ That the biftiop of Durham imprifoned one for a l^y caufe ; 
aMinr?'"b'fli whereupon the archbiihop of IVi, as his fovercign, cited him tot 



ainft a"bi(ho "^l^^^eupon the archbiihop of IVi, as his fov( 
rexctfsofju^^PP^^^ before him to aniwer for that ijnprifo: 



for*exctfsoOu!^*PP^^^ before him to anfwer for that ijnprifonment : whereupon^ 
rifdi«ion. complaint being made to the king in parliament, the matter was 
2. Inft. 600. heard there, and the archbifliop fubmitted himfelf to the king^s 
4. Com. Dig. .grace, and was fined four tfioufknd marks^— An4 THE JusTicJf% 
^^^' faid, th?y had feen it alfo, . ' ' 



Michaelmas Term, ^^^ 

38. and 39. Eliz. In the Queen's BencK 

Sir John Popham, Knt. Chief Jujlice. 

Sir Francis Gawdy^ Knt. ^ 

Edward Fenner, E/q. V jHftices. 

John Clench, Efq. j 

Sir Edward Coke, Attorney GeneraL^ 

Sir Thomas Fleming, Solicitor General. 



Comyns againft Beyer. Case t. 

Trinity Termy 38. Elia, Rollg^y MiddUfeX^ 

ACTION OF TROVER of nine oxen, at Stepney^ xn the A Jnftificatioa 
county aforertid, 29 Augufl^ y], Eliz. and converting V" '^»^ **»"^ 
them to his proper ufe the iame day, at the fame place, &c. y^^^ in^^ 
The defendant pleads, that tlie vill of Crawley in tlic county of ket oven, im- 
Suffex is, and time whereof, ice. was, an ancient vill, within which pHodiy ccnfcffci 
hahitur et tmetur^ and time whereof, &c. hath been held one fair thc,illcsation 
every year, ppon the 29th Auguft^ for all the queen's fubjcfts thi- {J|^L|{^ ^' 
thcr reforting : et fuhdanU temfmsy quoj l^c. viz. the faid igth Au- piaimiC 
p^^ 37. Eliz. one IViUlam White was poffeflcd of thofe nine Aate 14.6. 17*. 
oxen, and them to the defendant for 28I. the faid 29th Auguji in Cro. jac. 16s- 
opea fair fold and delivered, whereby he was of them poflelfed, as io«Co, 914 
of his proper goods, and them converted at Stepney^ in Middlefcx^ 
the ikme oay in the declaration, frout^ l^c. It was thereupon* de- 
murred. — Firft, Becaufe the declaration fuppofeth the property of 
thofe goods to the plaintiff, and the defendant doth not confefs, 
nor d«iy it, nor anfwcr thereto. But the Court held, that his 
pica was good enough as to that. For when he juftifies by buying 
m a market overt, it is thereby allowed, that the property was in 
the plaintifF ; but he is bound by that fale, and he needed not 
othcrwife confefs it. 

Secondly, The prefcription is alledged, that there had been in pleadine a 
a fiur in that vill, and he doth not alledge it to be in any certain f«ie »" market 
perfon, &c. But it vras held to be good ; for he need not take co- ®^ ** **' ^"^ 
nufence in whom it is : and fo is the ufual coarfe of pleading in ^ethc ma*-' 
fuch cafes. — Thirdly, he alledgeth the prefcription to be to hold kct to be in any 
t fair there every year upon the 29th Auguji^ and he doth not ex-» ccruin pcrfon, 
<cpt Sunaay^ as it ought to be. Sednon allocatur. For a fair holden ^ ^^*^ " '^'** 
topon the Sunday is well enough ; although by the 27. Hen. 6. C. 5. Sundalf o" that 
there is a penalty inflifted upon the party that fells upon that day, any tou was 
but it makes it not to be void.-^FouRTHLY, It is not alledged paid, or that th<j 
here that any toil was paid, for otherwife tiiic property is not ^«"<*""***<**0>c- 
changed. 12. Ed-w.f^pl. 8. 35. Hen. 6. ^/. 29. . £>;«■, 99- ^f '^HTSi" 
tun allocatur. For it is not of neceffity, and m many vills no toll . 
h ufed to be paid : and If it ought, itfliould be fhewn on the other ^'°- J**^- ^^* 
{>ait|to avoid the fale, that there was not any toll paid. — Fifthly, if bi. Rep. 49-,. 

Ant. S6. 
Poft. 5*59. HetlfXy 5o« Palm* 48^* 



486 Miciiaelnias 'iterm, 38- and 39; Eliz* In fi. R*. 

C0MTK8 It is nor alledgcd, that fVilliam White was poflefled of thofo goods^ 

againfi 35 hls DFopcr goods, nor that he had any property in them,- but 

''**** generally, that he w^ poflefled of them, and fold them. — Std nan 

allocatur ; and, notwithftanding thefe exceptions; and others, it 

was adjudged for the defendant. 

tAsia; Harringtdri /7^^/«// Wife: 

^ichdelmas Term, 37. ^ 38. Elix. Roll tz^. 
Articles by 1p|EBT for 60I. rent lipon a leafe, 23d Sept. of lands iri Uewad- 
Which "it is CO. U fy^^^ ij^ (he county oi JVarwicky habendum a fejlo Saneii 
*»agnMd tlut*!^. -McA. proxirH, futur: for five years, rendering iioh per annum at the 
** <Joth let the * two feafts. The defendant pleads, nihil debety l^c. A fpecial ver- 
" fiid Undj, dia was found, that thefe were certain articles indented iri vfrriting 
** &c." amount of the fame date, whereof the plaintiff fealed the one part to the 
u rr!r^*ll*" defendant, and the defendant fealed another part to the plaintiJF; 
*i/o that the icf- which were m this manner: "Imprimis, It is covenanted 
fee " ihail pay " and agreed between the parties^ that James Harrington doth let 
" to the faid ^, «» tlie faid lands for and during fire years,* to begin at the fes^ft of 
•*annually,&c.- u Saint Mchael next following; PROVIDED ALWAYS^ that the 
yA^T^l, " ^aid fVife {the dcfetuiant] iTiall pay to the plaintiff annually du- 
and not a con- " ring the term, at the feafts of Saint Afichaelznd. the Annunciation^ 
dition. «' 1 20 1, by equal portions. Alfo the faid parties do covenant. 

Ante, 33. 156. a ^\^^^ ^ ]^fc (^^n ^^ made, and fealed according to the effect 
173. 3c6. 385. .4 of ^t^tfc articles, before the feaft of Jll Saints next cnfuing/* 
1 Rdi^Abr 8 ^^^ ^^^^ further find, that he entered by force of that demife^ 
a.RoU.Abr!44o. *"d ^l^^t^ ^^^ '"^^^ was arere^ prouty fsfa And if, &c.— Two points 
Moor, 459. ' were moved, Firft, Whether it were an immediate leafe^ or but 
Cro. jac; 92* an agreement to have a leafe made, by reafon of the laft words^ 
Hob, 35. which refer to a leafe to be made, and fealed ? But all the Justice* 

i.^vJws Con. ^^^^ ^^ ^^ ^^ * 5^^^ ^^^^' ^^^ ^^^ words, " it is agreed that he 
3^9- 37»- ** ^^^ ^^^''* being in the prefent tenfc, is a good leafe by thtf 

Strange, 651. words of the agreement, and that which follows is in reference to 
B. R. H. 305. further aflurance, &c. and the rather as it is here, for that it is 
^'^aTAbr **i^ to bc made after the beginning of the term : fo he ought to have 
422.*^* ^'^^' ^^^ ^c"" prefently at Mickadmas. 21* Hen. 7. pi. 36. i. Edia. 6. 
jrpijer.wifi.i6. Bro. ** Leafesy^ 66. — Secondly, Whether x\yis trovifo were a good 
7'^33<>- 7?'* refervation of the rent, or a condition only, tor that there is not 
3*^^*'-^'"-*9' any words of agreement to pay it, nor any refervation ? fiutall 
^. Tern/jiep! "^"^ JUSTICES held, that it was a gQod relerVation ; for being by 
^ 736. ' articles, whereto both of them were parties, it is an agreement that 
2. Term Rep. the rent Ihall bc paid annually during the term ; which tanta- 
73^' mounts, as if it had been a refervation upon the leafe by words. of 

refervation. And Popham faid, that it was a refervation and 
condition alfo, as in the cafe of Sir Henry Berkley (a) ; where a 
provifo joined with the words of covenant make it a condition^ 
and a covenant alfo. — And it was adjudged for the plaintiff. 
(«} Eader Term, 37. £liz* ante^ 385. 

CAtE 3. ' Hall agatnft Hennefley* 

Hilary Term, 38. Eliz. Roll 
Words !mput. A CTION FOR WORDS. Whereas he was robbed by ferfbna 
ing THirT- I\ unknown of divers parcels of linen cloth ; that the defendant 
l^Zzh^ln^i framija/ciensy in flander of the plaintiff, fpake thefe words in the 

aUedged to be fpoken in tbi prtfiati of diven, it (hall be intended, after irerdia, in their bearing* 
Hob. 268. I. R0U.Abr.74. No7,5. Cro. Jac. 39. Cro. Car. 199. 4. Bac, Abr, 41a. Cowp.a76. 

pre- 



Michaelmas Term, 38. and 39. Eliz. In B. R: ^y, 

^fcnce of divers others, viz* ** Hugh Hall" {innuindo the plain^ Maii. 

tf) " hath received three pieces of his cloth again of the thief, ^'"^ 

'• and bcareth with tl\e thief, and if I have any hurt hereafter, I "*•**»•"■»*• 

" will charg^ him with it.'* After verdift for the plaintiff, it was 

moved in arreft of judgment, that an a&ion lies not for tlieie 

words. For when he faith, that he wa3 robbed by petfons uh* 

known, then the laying that he received his goods of the thief is 

not any offence ; for it is not alledged tliat he knew who was the Ante, 52. 

thief, from whom he received his goods. And to fay that he bare F'«- <^«'- 353^ 

with the thief, is no offence ; for one may bear with a thief; a^ ** ^^* *^' 

to bear with him that he fhall not profecute him, wliich is not any *[ Hawk^a'j*. 

offence in law ; and one may receive his goods again which were z! Hawk.4so«' 

fiolen without offence (a), unlefs it be done on purpofe to con« 

ceal the offender, and to help him to efcape. — It was moved alfo,* 

that this declaration was not good. For it is, that he fpake thofe 

words In frttfgrUid diverforum^ and doth not fay, in auditu ; and if 

none heard, it is not a flander. — And as to it, non allocatur. For it 

(hall be neceflarily intended, that it was in audituy when it was in 

frafentia^ f^c. But for tlie words themfelves, they all held, for 

both reafons alledged, that they were not aftionable. Wherefore 

k was adjudged for the defendant. 

(a) Sed vide 4. Geo* i» c« xi* and 25* Geo. »• c* 36. by which a fjenaltj is inAiacd 
«i thU olfeoce. 

Sleigh againft Bateman. ^^" *' 

Hiiafy Term 9 37. Eliz. Roll 514. 
A SSUMPSIT. And declares, Vfhcrczs Henry Cavtndljhy x^ApriU A l-ifte for 
" 27. Eli'z,. let a clofe called Biggen-booth to one Hu^h Bate- year* cannot 
«fl» for twenty-one years, who affigned it to the plaintiiF ; that '**^^"^'' ^^^^'J 
the defendant, ^ Marcb^ ^4^ Eliz. in confideration that tlie plaintiff, {^fullrnda^hif 
&t the inftance and requcft of the defendant, reconcederety or yield leafe; but if the 
up all his intercft and ternri for vcars in the faid clofe to tlie faid icffec f«ytoth« 
Henry Cavendijh^ ac contcntus cjjct that the faid Henry Cavendijh |f^*^'' " ^"^ 
fhouidhave the faid clofe, ad utendum ad voluntatem fuanty aifumed u^^u'l^^/^ 
to the plaintiff to pay to him 70 1. when he Ihould be thereto ** hnd,** ehlsia 
rcqucfted ; and allcdgeth in faft, that afterward, viz. loth March , a good fttiren- 
37. Eliz. adpradid. inftant'iam et requl/utim of tlie defendant, he did **^- 
legrant and yield up his faid leafe to //. Cavendi/h, and was con- ^^^^^^^* 
tent that the iaid H. Cavendijh Ihould have the clofe to ufe at his poft. tii. 
will : and for the non-payment of the 70 1. by the defendant, the ^ j^j^ 
plaintiff brought this a£tion. The defendant pleads a fpecial plea, a.Ron.Abr^]^7. 
and traverfcth the ajfumpjit modo et forma ; and hereupon a fpecial i. Uon. aSo. 
tcrdia was found, viz. ** that H. Cavendijh let utfuproy and the »• Vent. 199. 
" affi^roent to the plaintiff, and the ajjumpfit, as it is alledged ; ^'^T^- »9> 
*• and that the plaintiff, lOth A/arch, ^4. Eliz. at the defendant's ^' jtj^. ,^^. 
** requeft delivered an indenture containing the faid demife to one cro Jac. f>i^^ 
•' FFilliam yackfon^ to dtWwtT Jtmul cum toio Jlatu et inter cjfe termini Ld. Ray. 40a. 
^^ fritdi^iy to die faid H. Cavendijh^ upon tlie defendant's agree- 'H- 
" mcnt to pav to the plaintiff the faid fum of 70I. And that/w- *' ^^^{^ ^H^ 
^'pennde the (aid William Jackfony for the plaintiff, and bv his ap- ,.' y^^^ rc„ 
^'pointment, delivered and furrendered to the faid J!f. Cavendijh ^i. 
^ the laid indenture and demife, and the eftate, intercft, and term 
"of tbe plaintiff therein ; and that the faid H. Cavendijh accepted 
^ tbereoi^aad plucked away the feal thereof. And it \Nas farther 

*• found. 



48§ ^chaelmas I'erm^ 38. arid 39. £iiz. lii B; It* 

SLtifii ^ found, that the plaintiff was cbntcilt that the fard H: Caveniijh 
agahft it fhould have tenementa pradiHa uti ad vtluntatem fuam \ slnd that 

batima^. ,4 afterwards, the fame day, H, Cdvendi/h made a new Icafc thereof 
^* to the plaintiff; etji', tffcJ* And hereupon it was moved, that 
this verdia is 'found for the plaintiflF. The whole matter here 
only is. Whether this be a g66d furtertddr mkde according to the 
ajjumpjit^ and fd a good perfoj-rtiarice according to tllfi tdnfidera- 
tion aliedged ? — First, That by thfe acli^cry of the indehture of 
Icafe to fVilL Jack/on^ ad deliherandufkfimul cum Utbfiatu et interejfe 
fuoy to Hen. Cavendijh^ and he dclivcrea It accordingly, it is i& good 
a furrender as if he himfelf had filrrendCrcd it by exprefs words : 
for qui per aiium.faclty per feipfum fadt \ and if he himfelf had deli- 
vered the indenture, and all his intereft in the land, to the leflbr, 
who had accepted thereof, and cancelled the deed; it had been a 
good furrender. The law is tile fame where he delivers the leafc 
to a ftranger, and commands him to do it, wlio doth it accor- 
dingly. — Secondly, Admittihg there was riot any furrender 
made by this aft, whether, wheri the Icflec hinifelf accepts bf a new 

Ante, s64. leafe from the leflbr, it be not then a good furrender ?. as 37; Hen. 6. 
//; 15. is, and fo the confidcration is well performed: . The 
Court as to that held clearly; thit it is ndt ariy furreildcr ac- 
cordiiig to the ajfumpjit : for it ought to be art ablolute fiirrender 
in deed, and hot a furrender in fuch manner ; andfiich a fuiri-ender 
alfo, tliat he might have the land in him to difpofe of afterwards to 
whom he would, which is not here done by this taking of his fe- 
cond kafe.— -Thirdly, It was moved, that this is a furrender by 
agreement, that the leflbr fliould have the land to ufe at his plea- 
fure ; which is as good a furrender as if it had been By cxpreft 
wor^ds that he did furrender the land. For when it is ^reed 
tliat the leflbr fhall have and difpofe of it, it is as miich as if he faid, 
he yielded up all his intereft ; for otherwife the leflbr hath not any 
autnority to difpofe thereof. And to that purpofe wis citcS 
21. Hen, 7. pL 7. 40. Edw. 3* pL 24. Dyer^ 251. Biit it wa^ 
thereto objefted, that this is not any furrender ; becauft it is not 
found that he ufed any words to the leflbr, that he was Content, &c.^ 
but the jury had onljr found that he was content, &c. wliich might 
be by aflent of his mind. — But all THE Court refolved as to the 
firft point, tliat it was not any furrender : for one canncit autho- 
rife another by words onlv to make any furrender of his leafe, al- 
though it were but a leafe for years. As to the third, they all 
held clearly that it was a furrender : for when the leflee. agreed 
with the leflbr, and is content that he fliall have the land again, it 

Cd. Lit. 337.b, is a good furrender of a leafe for years. And fo it was agreed in 
Broiun VI Kingfwell^ that a lekfe for years may be tcrmined by fuch 
words : but it was there doubted, whether a leafe for life might be 
fo determined ; ahd the jury finding that he was content, it is 
thereby as good a furrender as if it had been found that he ufed 
fiich words. — Wherefore it was adjudged for the plaintiff; 

By 29; Car.,%. c. 3. no leafes, dUtes, writing, fignod Mj the party fimndtrm^^ 
br incereib, cither of freehold or term of See CUb. Caf. in Eq. ijC. a. WUl. 27* 
yeorss (hall be fwrtwkrtd luilefs bf deed In Qbi Ut.' 339* note (1) 

Haimanj 



Michaelmas Tcrm^ 38.&39.Eliz. In B. R. 489 

Halman agatnft Collins. ^*" 5* 

MUhatlmas ferm^ 37. W 38. £//«. Roll ill. 

pRROR of a JTidgmcnt given in Plymouth in an affumpjit^ where '« reciting the 

^ the defendant pleaded non aJTumpJit; and found againfihim, and J!^^' ^^J*^ '^[''- 

jodgment given for the plaintiff. — The firft arror atfigncd ere ttnus ^^^ app«ir by 

(for it was not afTigned upon the record) was, Becaule the ftile of what authority 

the coui t is, " Burgus domina regime burgt de Plymouth^ ibid, tent. »t is held j whe- 

" in Guildhall, coram Johanne Philips, majore ejufdem burgi, 18. April '^^^^^^^/"f^™ 

*' 36. Eli-z,^^ and Ihews not in the ftile of the court oy what au- ^y^^^^^"*"^ 

thority it was holdeii, vi%. by prcfcription, or by charter: and of^^^y^ 35. 74?^* 

fuch inferior courts, their authority to hold pleas ought always to Moor, ^2, 

be Ihewn, otherwife the court of queen's bench cannot take conu- Owen, 50. 

fancc of them. 13. Edw, ^, pU 8. Dyer^ 262. 2. Rich. ^. pL 9-^^*J**^* **♦• 

and Hilary, 31. £/iz. Roll 826. Stanton v. Rogers.— x\vi6. of that" ^'J^; 

. . - •% 11^-1 Tk ir L.Raym. i3io# 

opinion was the whole Court, Fopham abjcnte. Cowp. 19. 

A fecond error was afligned, Becaufe It appeared not upon the it muft appear 
record that Halman the defendant came in by attachment, or thato»^^*^c«'«=^"* by 
he declared againft him fub cuftodia, tsfc. But the record is certi- ^J{^^j^;^/{; ^ 
tied only in this manner, after the ftile of the court, as before, &c. brought iiu 
•* IV. Coil, queritur verfus Greg. Halman de placito tranfgrejjionis fup. 
" cafum^ Ufc. ^tfunt plegii de profequendo^ Job. Doe^ R. Roe, Et 
*• unde idem fVilHeimus queritur^ quod cumy bfc.** So he fhews not 
that any procefs w^as awarded againft tlie defendant, nor that he 
came in by procefs, nor that he was fub cujlodid of any,, as is the 
iifualcourfe in fuch cafes. — And it was held to be a manifeft error. 
But it was doubted, whether it were not helped by the ftatutc of 
je^fayls^ being after verdift. 

a' third error afligned was, Becaufe here was a difcontinuancc The 31. H. g. 
after the verdift, and before the judgment ; and the ftatutes do not*^* 30- fiends to 
aid difcontVnuances after verdifts,but only difcontinuances before ^"^^^^^l^^^jj^"^^ 
verdids, whereof the party might have taken advantage before the tcr vcrdift at 
trial.— But Gawdy and Fenner faid, that it was aide'd by thcbcfons. 
ftatute, which remedies all difcontinuances, as well after as before. See 4.* 5. Ann. 
And divers other errors were afligned for infufficiency in the de- ^ '^' 
claration: but becaufe they held the firft to be a itianifeft crror,3-^J|^^j5j''^'* 
they fpakc not to any others, but reverfed the judgment 3»6.^^* ^' 

Long's Cafe. "^^,"1 

TTT'ILLIAM LONG was indifted at Norwich^ withm thecoun-Aconviawhofe 
^ ty of the citv of Norwich^ of the felonious ftealingof a piece attainder Is faved 
of linen cloth, ana was thereof arraigned, and pleaded not guilty ; hy dcrjjy cannot 
and was found guilty, and prayed his clergy, and was burnt in the**"*^?* T""^ ?f 
hand. Upon information to tlie Court that this indicting of him ^y' ^^,4^ ^ 
was bv praftice, and he found guilty upon fmall evidence, he ob-indi^>ment by 
taineci a certiorari to remove the whole record into the crown c*rftorari/ and 
office ; which being removed, there were divers exceptions to the ^^^^ t^xceptiont 
indiftmcnt to difchargc the fame. For it was moved that it niight JJ^^*,J^* ^^^^* 
well have been difcharged by exception, and there needed not any i^^ * 
writ of error to avoid it; and he could not have a writof error,aSa.Hawk.^405. 
the cafe is, becaufe he was a clerk convifted only, and not attaint- Ld. Rayxn. 469. 
cd ; for when he graved his clergy, which wad allowed him, »• B"""- '04o- 
there never was any judgment afterwards given.— And of tliat opi- ^' 5I*^*^P'*|5* 
flion was the whole Court, *^ t! Ve^?^!;^: 

CilO. ELI2. FART 11. L 1 ThE 175. 



490 Michaelmas Term, 38. & 39. Eliz. In B. R, 

LowG'i Casi. The first exception was^Becaufe thcindiftmentis, " SeJJi9 
In what manner *< pads domina regiia tent, apud Guildhall civitatis pradi^a^ Isc.^* 
*'•• ^'5'^" ^^^'^^ civitas NcfMich was in the margin: and it is not mentioned 
muftaUcd^the*^^^^^^ a fcflions held for the county of the city of Norwich; and 
place at which it may be, that it was a feffions of the. peace for the county of 
it was ttkcn. Norfolk ; and then they ought not tq inquire there of a faft witliin 
Ante, 137. the city. Secondly ^ it is not allcdged that the Guildhall was witliin 
Poft. 606. 738:tlie city.— 5r^ non allocatur: for it fhall be intended to be 
T^Sid within the city. And it fhall of neceffity be intended to be a fef- / 

i'.Kcb*3%'.€6l!^°"^ ^f ^^^ peace for the city only, becaufe civitas Norwich is in 
I. Lev. 304, tlie margin. 

a.Ktb.128.133. 14X. *i,H«wk.359. Strange, 313. 698. S65. IJougl.153. 791. i. TermRep. B.R.316. 
How the place A SECOND EXCEPTION was, Becaufc it is alledged, quid apud 
hd^e* uft^w^ -^<''^'^«'«> within the county of the city, he felonioufly ttole, &c. 
loiedrol?" ^^nd doth not (hew within what parifh and ward of the city he did 
• it, &c. and it was alledged (as the truth is) that there are in that 
city twelve wards, and two-and-thirty parifhes, &c. Fide 7. Hen.b. 
pL 25. — Sed non allocatur: for the Court takes not any cognizance 
of Rich parifhes and wards ; for it is but afurmife, which they re- 
garded not ; and fo are all the precedents, that the fiadl is allcdged 
• apud fuch a city, without mentioning any parifh or ward. 
An indiftmcnt A THIRD EXCEPTION. Becaufe the indiftmcnt is, " quod/do^ 
o: larceny muft «« nic'tfuratus fuit quandam peciam panni linei cujufdam ^ntho. Nixcn 

^^U'f'^'' pf^^ 'drapery ad valcntiam,'' bic. anddothnot fay. de bonis fe" ca- 

property wai r . /•» '^ \r » •• -»t- » r ' *• 1 

*< the goods and.^^ll^^ cujufdam Anthonti Nixon^ as «the common torm of the prece- 

** cbattils'* of dents are ; and therefore ill ; for an indiftment ought to be certain 

*c. to every intent, without any intendment to the contrary; and 

1. Hale, 181. here it may be that this piece of linen was not the goods and chat- 

*!b!c^V^o ^^'^ ^^ Anthony Nixon^ at the time of his taking of them, but by 

.CaCOro.'^'LMf^^^"^ '^^ °^^» ^^ delivered, or pledged to another: and it ought to 

.404. have been fhewn whofe Ifcna & catalla they were ; and it ought 

not to vary from all other precedents. — ^And the Court held it to 

be a material exception, for the reafons aforefaid: and for that 

caufethe indiftnient was difcharged by the whole Court, Gawdy 

ahfente^ and rellitution awarded to tlie party for his goods feized, 

for that caufe. 

^^" 7- -Henry Earl of Lincoln aj^ainft Hoikins. 

Michaelmas Term, 37. ^ 38, Eliz, RoU^l. 



In pleading the p\EBT upon an obligation of 50I. dated 16. July^ %^. Eliz. con- 

reftraining ^,LJ Jitioned, that if he from time tQ timcfhould ferve the cure at 

«"2o.^f the ^^^^rjhallj and not depart without licence ; and if he fhould make 

ciaufc be recited f"ch a leafc of the parfonage of Kirkby as the carl fhould require; 

tarn diii, where and if he did not any aft by refignation, or, &c. whereby tlie leafc 

the words arefhould be void ; that then, &c. The defendant pleads, tliat the 

wiirb^bad ^^^^^^^'^ -^ ^^^* * benefice with cure, whereof he was parfon; 

Aotp *f3.* *^^ further recites the 13. Eliz. c. 20. that no leafe of any oenelicc 

^3.Bac.Abr. 372. with Cure (hould endure longer than the parfon fhould be refident 

Cowp. 474. upon his benefice, without abfence for eighty days ; and recites it 

©ougl.95.97. with this claufe therein, tarn diu (where the words are tarn citij 

quam ea^ aut aliqua pars inde veniret^ ad aliquam pojfejponcmi vel ufum 

inhibitum^ vel^ i^c. which words by the 14. Eliz. c. 11. f. 15. arc 

repealed, a^d appointed to be omitted ; and further recites the 

14. Eliz. c. II, f. 16. {a) that all bonds, &c. made to permit any to 

{a) Seoalfo 43 1 £Ui. Cty* 

enjoy 



# 



Michadmas Term, 38. & 39. Eliz. In B. R. 49X 

enjoy any Icafe Ihall be of fuch cfFea as the leafc ; and alledgeth Henry 
that this bond was made for the enjoyment of that leafe. It was ^f' ^^ 
hereupon demurred. Firft, in rcgara of the mifrecital of the fta- a^^iV 
tnte. Secondly, becaufe it is not alledged that he was abfent ; for h^sums* 
othcrwife neither tlie leafe nor bond are void. — ^And for thefe 
caofes, without any argument, it was adjudged for the plaintij^ 
that the ploa was infuihcienL 

Rofs againft Aldwick. Casi «^ 

Eafter Term, 37, Elisc. B^ll 499. 

Trespass for breaking his clofe at Edmonton. The defendant a Icafe to A* 
pleaded not guilty ; and a fpecial verdift found, that PFii/iam iorlifc^ and thf 
Hormington was feifed of that land in fee, and let it to one Nicholas ^^^' ^^ '^° 
j^Uwici and his affigns during his life, and the lives of ^i^iiam'^^^;^'^f^ 
and Thmnas Aldwick, his fons ; and afterwards let it to Peter ^^ lives, and both 
for years, to whom Nicholas Aldwick attorned. Afterward ^/VAo^jcrtites are verted 
Aldwick the father let it to William his fon (the now defendant) at»" -^- *"«^ *»« 
will, and died, leaving William and Thomas his fons. And th^Taidj;^*^ ^J^^^^'''^ 
William being in pofleffion, at the time of the death of Nicholas^ have^no \twht 
tthcr, Piter Rofs entered, and the. defendant oufted him. JSr^of the remain- 
Jvfer tet.t*n materiamj l^c. The folequeftion was, Wbetlier a leafc <*ers in his own 
to one for his own life, and the lives of two others, bfe a longer P**^^^"* 
and larger eftate than for his own life only ? '^"^^^ \l 

JoHNSok/or the flainti^ held, that it was not ; for inafmuch as s.c. M<^r i^s! 
it IS limited to him for his own life, it is the greateft eftate of free- s!c. 5.00/1 ^jj 
hold, and the limitation for the lives of others is vain and void ; Co. Lit. 54. 
for a man cannot have a greater and Icfler eftate in him at oneand^y«r» 3«o- 
the fame time. But againft that it was argued, for the defendant, 3- ^^J- **• 
that it was a good limitation to him for the three lives, and he had c^. jac.'is'i. 
them all in him to aflign ; and although he cannot have benefit in 2.RolLAb,445» 
his own perfon of more than his own life, yet he hath the re{idue47^* 
of the other lives to affign over ; and a man may have a greater or 
a lefler eftate in him all at one time where the lefler is fubfecjuent, 
as an eftate for life, remainder for years ; which although m his 
own perfon he cannothave benefit thereof, yet he may aflign it, or . 
devife it, as 4g. Edw. 3. or to forfeit it, as 19. Edw, 3 tit. ** Cc- 
vtnant ;" and he mi^ht fave it; in a quid juris clamat^z^ 4o. Edw.7. 
" quid juris clamat*^ is ; and if it had been limited to him for his 
own life, Remainder pur auter vie, it ha^ been good by a grant oven 
So if a reverfion be granted to him pur auter vie, it had been good ; 
and fo it is where it is all by one limitation, he may thereof have 
benefit by afligning it over, or to charge it with a rent, or to let it 
for years, which is good as long as any of the cefly que vies be living. 
And for exprefs authority herein were cited, 8. Edw. 3. pL 402* 
31. Eli%. Dierfley v. Nevel, and 32. EH%. Feudal* s Cafe, wherein it 
was held, but not adjudged, that it was a good leafe for the three 
lives, and not for the life of the lellee only. The common expe* 
ricnce alfo in leafes of bilhops, and of tenants in tail, is to be 
granted to one for his own life, and the lives of two of hi» fonsx 
and it hath been allowed always to be good, as longas^yoftlien^ 
be aiiVe ; and they are made in this manner becaufe a leafe for life, 
remainder over, cannot be good ; and he would not^take it in^ 
jointure with any otlier; for then the other mi^ht prejudice him 
U3 part, and be could not furrender, nor Qhange it 9|t hss pie '^ 

Ir 1 a 



w 



49Z Michaelmas Term, 38. & 39. Eliz. In B. R. 

Ros» —And of this opinion were Gawd Y and Fenner, JuJIices ;for other- 
ngainfi ^jf^ \^^ iKould iiot take fo much as was limited to him ; and 
AiDwicit. ^^^^ jg „Q|. 2^ny iiicouvciiicuce herein; but all the cftates may- 
well ftand together in him. And Fenner faid, that he was of 
cbunfetwith Mr, Southcote in the common pleas, where the bifhop of 
London made fucb aleafc to one for his own hfc, and of twoothers ; 
^d it was agreed to be good for all ; wherefore they {ahfentlbus 
aliis Jujiicianii) gave judgment for the defendant. — Note. Pop- 
HAM was there at the time of the argument, but rofe before the 
end tliereof ; but feemed to agree in opinion with them, although lie 
delivered it not openly : wherefore it was adjudged ut fupra \ but 
no judgment was entered, becaufe the parties compounded. 

CA819. Wyld againji Cobkman. 

Eafier Term, ^'j. Eliz, Roll ijo. 
Jumficatlonln A CTION for thefe words: " Thou waft forfwom in the leet,'' 
flandcr. xx i^nuendo^ " a leet holden in fuch a manor, fuch a day, &c." 

Voa!y2u "^^^ defendant pleads, that the plaintiff the fame dav w^ith others 
Voy] 34. ' ^'^^^ fworn before the fteward to prefent, &c. and tlicy prefented 
Moor, 4J04. that fuch a ditch was not fcourcd, ad nocummtuniy ^c. which was 
Com. Dig. ijS.falfe, and fo juftifies. And it w;is thereupon demurred ; wid now 
Cowp. 18. moved that this was not any plea, becaufe it is not faid that they 
knew it of their proper notice to be falfe ; othcrwife it is not per- 
jury; for they make their prefentment upon evidence, which if 
they believe, and prefent falfljr accordingly, it is not any perjury. 
•— Gawdy and Fenner. It is properly and commonly intended 
that they fhould prefent falfe upon their own knowledge ; and if 
they prefented upon evidence, the plaintiff ought to Ihew it by 
replication. — Popham. But a man may not juftify by intend- 
ment, but it ought to be precifely alledged. — Gawdy. There is 
another incurable, fault therein; for it is not alledged that the 
(m) I. Term jj^^j^ ^^ within the leet (a) ; and if it be not, the prefentment 
^P' '5*' thereof is out of their charge, and it is not any perjury ; which 
was agreed by all the Justices ; whereforfe it was adjudged for 
tlie plaintiff.— Clench demanded, whetlier an aftion lay for thefe 
yfords ; and all the Justices held that it did. 

Casiio* Freefton agalnft Crouch. 

Hilary Term, 38. £/ra!. Roll 71 1. 
If to the com- t^ROR of a judgment in the common pleas. For that trcfpafs 
mon bar in trcf- 1-* ^^3 there brought, and the defendant pleaded at large, that the 
Son mltoa^'Pl^^ w/&fr<?, is two acres. He. and abuttals it, and juftifies as in 
iicvr aflignmcmi^is freehold. The plaintiff by his replication made a new affign- 
and dcfcribtt Plenty that the place where y is two acres, and abuttals them' othcr- 
the place wife than in the bar. The defendant rejoins, that the two acres 
^"'*.'' ?**T* mentioned in the bar and in the replication arc all one, &c. and 
lJ|^*/|he"^yjnt thereupon the plaintiff demurred, and adjudged there that the rc- 
dcr* cannot aver joinder was ill, and adjudged for the plaintiff: and thereupon error 
k to be the (ame brought, and afligncd in the very pomt and matter of law, becaufe 
pla«. i^ might be true, that what the plaintiff (hews in his replication 

Po£i. 897. g^ abuttals, and what the defendant hath pleaded in bar may be 
Popfc. log. ^[| Qjjg . . fQ,. ih^ Qj^g jjjay j^Ij^j if upon the one fide, and the other 
Yclv. 166. ^ '^ 

i.Brownl. aoo. Cro. Jac. 594. Lutw. 1419. Moor, 460. 463. Dyer, 13. t6z. ft64« i. Mod. .117* 
Garth. 176. W^ 453* Onaow*i N. ?• 88. 1. term Rep. 479. 

upon 



Michaelmas Term, 38 . & 39. Eliz. In B. R. 493 

wpon the other part, and both be true ; and then there is not any Fubistom 
reafonbut he may plead it ; and fo is 21. Hen. 6. />/. 21. 33 Hm. - ^^'"^ 
6.^. 14. and fo it was adjudged 21. Hen. 8. Roll 449. Tylney v. ^**^"^*'- 
Sfelman, ferjeant. Wherefore, &c.— PopnAM^ Clench, and 
Fevxer, Jtifiiccs^ held die contrary ; for when the plaintifFreplies, 
and makes a new affignmcnt, and laith, that it is alias quam in bar- 
r.'i^then he waives that whereto the defendant hath pleaded; fo as, 
if in tratb it be the fame tiling, he can never take advantage there- 
of, but is eftopped to give evidence in that which the defendant 
hath pleaded ; and therefore to that place newly affigned, the de- 
fendant fliould have pleaded in bar thereto, or ought to have 
pieced not guilty; and fo are 14. ifen 8. pL 4. and 27. Hm, 8. 
P^ 7 — Gawdy e centra. And he held the law to be with 21. 
/fof. 6. p/. 21. for it is not reafon, if they be all one place, but that 
he ought to plead it, and not to ftand upon an eftoppel, and put it 
upon evidence to a jury. But notwithftanding, forafmuch as the 
other Jufticeswere of the contrary opinion,lie affented, with them, 
that the judgment fliould be aiBrmed. 

Beckford againft Parnecotr. Ca«i %%. 

Trinity Term, 3 7 . Eliz. Rdl 6^z,er6i^, 
P JECTIONE. FIRM^. Upon a fpecial verdia the cafe was, A tcftntor being 
-■^ that one Richard Parfons was feifed of divers lands in ^A/M/^r//&,^*^"<^^«* *>y* 
and had iflue four daughters, viz. Barbara, Joan, Frances, and f "^^^^ ^^/^ii 
Mary ; and 27. Eliz. made his will in writing, and thereby devifedfubfequc^^^^ 
aU his lands in Jldworth to Barbara and Joan his daughters, and the making of 
made them his executrixes ; and after in 33. Eliz. purchafed other ^'' ^»^*t in 
lands in JUworth (which are tlie lands in queftion); and after one ^'*!^*' ^** ^^^ 
J. S. came to the devifor and defired that he would fell unto himfr][f;^*^)!f'. 
Ihofc lands which he lately purchafed ; and he faid, "No, they the pia^ wb^ 
" (hall go, witli my other lands in Aldworth, to my executrixes." the new lands 
Afterwards in 34. Eliz. he being fick, tlie will was read unto him, '*y? "^^^^y . 
and he faid nothing thereto; but then gave divers legacies of^^^^h*'^^^, 
goods to others^and caufed them to be written and annexed in a«i^oiC 
codicil thereto, and died. Whether thofe lands newly purchafed" ianJsr thi« 
fhall pafs to the executrixes by that will ? was the queftion ; viz. ** * fufficlent 
Whether by thofe words u fed to a ftranger, or the annexing of tlic*^^*^"^^*^'"^" 
codicil to the will, being only concerning goods, be as a new pub^ AntS^A^f az, 
hcation of his will to make thofe lands to pafs, &c.— Firft, it was.s c x R<rtl 
agreed by the counfel on both fides, and by the Jufticcs, that ifAbr'e/s. 
the devilor after the purchafe of that land had made a new publi-S.c. Moor, 404, 
cation of his will, and fliewed his intent that thofe lands fliould^' ^•^"***- 
pafs, it had been a good devife o^ them ; for the words in the will J^n 
arc, •* all his lands in AldwortW which are apt enough, and fuffi-Ab.'4o6. ^ ** 
cicnt to carry them; and he could not have added more apt words*. Lev.i4.3. 
thereto. But afterwards all the Juftices (Gawdy ab/ente) held, '• ^^- *67* 
that it is a new publication of his will, and fufEcient by the words p,-'°^^ ^^^ 
to J. S. for that fhews his intent fufficiently, and the will writwem %r^' 
hath words fufficient. And Fenner held, that the annexing of the Gilb.'on Dev» 
codicil thereto is a new publication as to it; for therein he affirm- 9>« 
cd that it fliould be his will at that time. But the other Jufticcs *' ^''**^' *^^" 
doubted tlicreof, becaufc he doth not fhew thereby any intent thatj^^^™' ^''' 
E5.Ca.xr6. 3. Com. Dig. 7. I. Peer. Wms. 168. 575, 597. 3. Peer. Wm.,' 169. 329' %. Peer. 
»im.(65i). a.Cha.Rep.71. Freem.264. PowclonDcv.657, Prcc. Cha. 441, 441. Cowp. itt. 
PpsjLjr 3$. 716. now. I. Term Rep. 435. ^ *^ ^ 

LI3 



494 Michaelmas Term, 38. & 39, EUz, In.B. R«. 

Beckford this will fliould be for his purchafed land; nor that he then re- 
a^ainjl mcmbcred them. But for the reafons before, it was adjudged fyr 
Parnicott- ^^ plaintiff, that thofe lands well pafled by the will 

See 39. Car. 2. c, 3. 

Afcue agahifi HolUngworth. . 

fhimdiffc™^' npHE CASE was now moved again {a) to be fuch : H, Afcue, W. 
from a* aatute Afcue, and J^hn Fitx^fVUliams were bound to HolUngworth in 

ftaple in having 400I. by fuch words, ** Obltgamus nos adfolutionem praditlam, l^ Ji 
the fual of the «« defecerimus de folutlone pradi^d^ tunc currat fuper nos, bf quemlibit 
as thf of thT"" '^^^^ t"^^^ fi^^^^^ JlapuL &c. Holiingworth thereupon brought 
kIng^^^hc^ollir.^^^^ agamft H, Jfcue only, who demanded oyer thereof,* and it was 
fee may there- entered in hac verba, (s'c . The defendant pleaded, that it was in- 
fore waive cbe tended to be only a ftatute ; and becaufe it was not fealed in fuch 
execution by manner as it ought to be, with a feal of two parts, it was a void 
ftatute, an^[»J« ftatute ; wliereupon he demanded judgment whether he (hould fuc it 
vpon an obiiga- as an obligation. It was thereupon demurred; and adjudged agamft 
tjon at common the defendant in the common pleas ; and error thereof brought, 
law. and two errors only affigned. Firft, that it being void as a ftatute 

(«) Ante 355* it is not any obligation, and fo an aftion of debt lies not upon it. 
poll. 544. Secondly, If it be an obligation, it is jointly entered by three, and 

] ^ therefore he cannot fue the one without the others. 
Gould 'pK*i37. Godfrey i contra. For the firft error, although it be void as a 
1. Sid. 238. ftatute, yet it is a good obligation, for there be words therein obli- 
1. Saund 29X. gatory, and every ftatute is delivered to the party, as 20. Edw, 3. 
a. Com. D.g. u Accompt''* 79. is. And an indiftraent which finds a thing as 
r?Com. Dig. f^lo^^y which is not fo, is void for tlie felony, but is a good in- 
^^^. ' ' diftment for the trefpafs, as 6. Hen, 7. and t8. Edw. 4. are. Vidt 
%. fiac Abr. ante, 231. Secondly, Altliough three be named in the deed, yet it 
335- appears not that they all enfealcd it ; therefore the action brought 

I. Peer. Will, ag^inft one of them is welLenough ; and fo is 28. Hen. 6. pL 3. 
^^^* Gawdy. It is good as an obligation, becaufc it never was any 

ftatute. As to the fecond error, he held the judgment to be erro- 
jicous for that caufe ; for the words of the obli^tion "are joint ; 
tnd being a joint bond, the one Ihall not be fued without, the 
other ; and although the party admit thereof, yet the obligation 
oeing entered upon record, fo as it appears unto us that the aftion 
is mifconccivcd, we ought to abate it, andfois 14. Ellz. Dyer, 310. 
Fenner. It cannot be an obligation, for a deed ought to be 
according to the intent of the parties : and here it was never ill- 
tended by the parties to have it delivered as an obligation, but wai 
acknowledged as a ftatute ; and that' appears by the mayor's feal 
put thereto, and the words therein ; and here is not any allega- 
tion of the delivery thereof. And although in debt upon a bond, 
the delivery thereof need not be prccifely allcdged ; for it fhall be 
intended ; yet being here alledged to be acknowledged as a ftatute 
(which needs not anydelive;"yj,thcreoughttobc an exprefs delivery 
alledged thereof, in debt broug^ht tliereupon as upon anvobligation 
(if it be to be taken as an obligation), otherwife it never fhall be 
lb intended. And to the fecond error, he conceive^, it to be an 
error apparent for the rcafon before alledged, 

PoPHAM. Debt lies upon a ftatute, as upon a record, or as up- 
on an obligation, although it never were delivered ; for it is upon 

record 



Michaelmas Term, 38. and 39. Eliz. In B. R. 495 

record that it was delivered ; and the party is eftopped ft) fay .the Atcym 
contraij : but here it is a void ftatute ; fo it is not any record to ^t'^fi ^ 
eftop him : and therefore it is good, if it hath not aiiy delivery. worth!*' 
Bat the defendant might well have pleaded nient fon faity and given 
this matter in evidence ; but he hath implicitly admitted thereof 
by his bar, that it was a delivery, and therefore he hath now paf- 
fol it. As to thfe fecond Error, it appears not whether the other i. Saund, 2f»4. 
two did feal it or not ; nor whether they be now living or not; ««Lut. 695. 
otherwife the a&ion is well maintainable againft the one only, 
which ought to be fhewn on the other part ; and prima facie ^ it 
may be good againft the one. — Clench abfente adjoumatur. — Af- 
terwards, in Hilary Term, 39. Eliz. it was moved again, and re- ^^' 544- 
foiv'od, notwithftanding thefe exceptions, that the judgment Ihould 
Reaffirmed. 

Eafon againft Newman. ^a** n* 

Hilary Tirmy 37. Eliz, Roll 460. 
A CTION on the cafe upon trover. A fpecial verdift was found, Non delivery of 
" that one Pepper was pofleffed of thofe goods, and the defen- foods upon te- 
dant found them, and Pepper made the plaintiff his executor ; STc^nmoX 
and that the defendant, knowing them to appertain to the plain- 
tiff, denied to deliver them to him upon hisrequeft: and, Whether J;fJJ2j^^';^ 
that were a converfion without any other aft done? was the quef- Moor, '460.* 
tion — And all the Justices, •PoPHAM^i/^w/^,held, that it was a 10. Co. 56. 
converfion by the fole denial.— But being afterwards moved again, J; »"^^- 3o8. 
PoPH AM held it to be no converfion : but it was cited at the bar, f M^d ''* . 
that 23. Ehz. in this court, it was ruled to the contrary. Ef CTo.Czr.%iL 
adjournatur. SecMorri$v. 

Pugh, 2. Burr. 1243. and 5. Burr. 2826. 

Kirton againft Williams, and thre? others. Ca$« i^^^ 

Trinity Term, 38. £//«. Roll 623. 
Xi^zn appeal of mayhem three appeared. One of them pleads nul A fpecial plet 
tiel in rerum natura^ as the fourth named, and ^uoad the felony »n abatement 
not guilty. Another pleaded mifnomer, and to the felony not guilty. f!!f^^^ ^^\ 
The third pleaded not guilty. To the pleas of the two firft the b^cd to^^ 
plaintiff demurred.-r-TANFiELD moved, that it was not any plea u ftlmy. 
to plead in abatement, and alfo not guilty in any cafe but where Ante, 223. 
the life is in jeopardy, which is allowed in favor em vita ; but here Poph. 115. 
this adion is but in nature of trefpafs.— And of that opinion was s. c. Owcn, 57. 
the whole Court. For Poph am and Fenner faid, when one ^•^•'^^W7- 
plcads in-abatement, and alfo in bar of the aftion, the plea in bar ' "^^ ^fi" 
waiv« the plea in abatement of the writ, unlcfs it be where the life . 
K Jn jeopardy, in cafe of felony, and that is infavorem vita.—hS- *• Hawk. 277. 
tcrwards the Court awarded, that the pleas in abatement were !:!*^^ 59- 
oulW, and the pleas of not guilty fliouid oplyHarid. • Sw) iae?^"*^" 



LU Kclfack 



496 



Michaelmas Term, 38. and 39. EUz, In B, R. 



Casi i{. 



If one of two 

executors ddi- 
yier a bond das 
to the relator 
tori ftrangcr, in 
fatisfadlon of 
his own debt 
and dies, an ac- 
tion of dttiaua 
will not He by 
the furviving ex- 
ecutor to reco- 
ver ix back. 
Ante, 35^. 478. 
483. 

s.Roll. Abr.31. 
46. Moor, 422. 
Dyer, 23. in 
mafg. 

ft.Bac.Abr.395. 
655. in notis. 



6ass 16. 

Sbnder fpoken 
in a language 
unintelligible to 
the auditors is 
not adlionuble. 
Poft. S65. 

j.Roii. Abr. 74. 
Nob. 126. 268. 



Kelfack againft Nicholfon. 

Jnttt Page 478. P loci to 8. 
•npHE CASE was now moved again for the plaintifF, tliat the 
^ aftionlay. For although an executor may give a thing in 
poflellion, and it fhall bind his companion, as 28. Hen. 8. pL 23. 
IS, or may leleafe a debt, which alfo is good againft his companion 
furviving him ; for they are things executed, and nothing remains 
to his coiqpanion ; yet here, notwithftanding tiie delivery of this 
bond, the debt, which is a thing in aftion, remains, and byconfe- 

?[uence he Ihall have remedy for the deed, efpecially as this cafe is ; 
or that the deed was not delivered to the debtor, and fo might 
have been a releafe unto him of the debt, but to a ftranger. And 
it is as if tenant in tail fhould give the deed of intail and die, yet the 
iflue, having right to the land, (hall have a detinue for the deed. 
Gawd V. The cafes are not alike ; for a tenant in tail cannot give 
the land itfelf from his iflue, no more can he give the deed of 
intail. But if tenant in fee-fimple gives the charters of his land, 
and dies, fo as it defcends to his heir, yet he hath not any remedy 
for the charters : fo here, in regard the executor might have re- 
leafed the debt ; fo may give and difpofe of the inftrument of 
the debt. And if there be two lellees by indenture, and tlie 
one gives the indenture to a fti anger, the term fhall furvive to 
his companion ; for nothing of the term pailpd by the gift of the 
indenture : yet his companion hath not any remedy for the 
indenture. So here, &c. Wherefore, &cc. — And of that opinion 
were PopiiAKf and Clench ; but Fenner e contra. For inaf- 
much as the debt remains to tlie furviving executor, fo the deed 
ftall remain and appertain unto hjm. Wherefore, &c.— But not"* 
withllanding it was adjudged for tlic defendant 

Jones againft Davcrs. 
nrilE plaintifF, being regifter to the bijkop ofGlouceJler^ brought 
an aftion upon tlie cafe ; and declares, that the defendant dixit 
et propalavlt bare Latlna verba in prarfcntia diverforum^ qui intellexerunt 
Romanam liti^uamy viz. " inimicus mcus (innuendo the plaintifF) is 
" an extoriionevy'' and divers other flanderous words, which were 
clearly aftionable. The defendant pleaded a vicious bar ; and it 
was thereupon demurred. But now SNACcyir the defendant vaowtA^ 
that upon this declaration the plaintifF ought not to recover.— 
First, It is fuppofed that the defendant fpoke llandcrous words in 
LatiMy . in fntfentia diverforum who underftood lin^uam Romananiy 
which well may be'; for lingua Romano at this day intends tlie 
Italifin tongitfy and not the Latin tongue. And then, if the words 
were fpoken in the prefencc of thofe who underftood not tliat 
tongue, the aftion clearly is not maintainable ; for it was not 
flanderous where none underftood it. And therefore it was ad- 
judged in the exchequer, where one fpake divers flanderous words 
in the IP'elJh tonj^ue^ the aftion lay not, witliout averring them 
to be fpoken in the prefence of tliofe who underft.ood the ffel/b 
tongue. And of that opinion was the whole Court, that if it 
might, be intended that tlie Latin and Roman tongues difFered 
-(as at this time it feemeththey difFer ; for the Roman tongue now 
ufid jxi^iy be intended the Italian tongue}^ then the adtion lies not 

— Se- 



Michaelmas Term, 38. and 39. Eliz. In B. R. 497 

—Secondly, He doth not fay that the plaintifF was an extor- ]ovn^ 
tioacr ; but he fairfi tnimtcus meus^ which cannot be intended of j»j*»'«^. 
the plaintifF more than of any other. And although the plaintiff ^ ^V*. 
alledgeth that he fpake them {innuendo xht plaintiff), it is not raa- muij*'bc*avcrrc4 
tcrial ; for it did not fo appear to them who heard it. But if it ih^t the words 
had been averred that at the fame tiipc he was the plaintiff's enemy, were fpoken o£ 
and that the defendant had not any other enemy, there peradven- the piainiif, and 
ture it would have been otherwile.— And the whole Court were ^ inderft^"* 
clearly of that opinion. Popham, Chief Juftidj cited Sir John ^^^^ 
Bourns Cafe to be adjudged, that where three were fwom in evi- Ante, 346. 
dence againft him, and he faid, *' One of you is perjured," and 4. Co. 17. b. 
the one of them brings an aftion for thefe words, and alledgeth Hob. x6S. 
that the defendant fpake thofe words [innuendo of the plaintiff), Cowp. aye. 
and adjudged that the aftion lay not. Wherefore, for the laft ex- 
ception, it was adjudged againft the plaintiff. See Price v, Jenkins^ 
f'zfi. 865. 

Harecourt againft Bifhop, Ca$k 17. 

TERROR of a judgment in the common pleas in an ajfumpft, — The 5^,^^ •„ ^^ 
•*--' error alEgned was, becaufe the judgment was entered, ^«^^/ judgment "^ 
^acns recuperet lool. per juratores ajfef et 5/. pro mifis^ per jurat, A/c >»•«/. 'Mnftead 
ds incremento adjudicate fo it is per jurat, where it ought to be per ^^' f^^^^rlam;* 
curiam^ and thereby a mifprifion and error. But it wj^s prayed ^l^^ *^^" ' 
tliat it might be amended ; for it is but a mifprifion of the clerk Poft] 865. 
in his entry, and therefore is well amendable by the 8. Hen, 6. c. 12. paim. 98. 
— But THE Court held, that it was not amendable; for it is the i.Bac.Abr.io6. 
default of the Court in the judgment, which never is amendable: Dougi.iis.xi6. 
for if it had been omitted by whom they were affeffed, it had been '• '^"'^ ^^P* 
clearly ill : and fo it is when it is entered to be affcfled by a wrong '^ ^' 
pcrfon, it is not amendable ; no more than where an entry is idea 
^apiatur^ where it fhould be in mifericordia^ which is merely the de- 
fault of the clerk who entered the judgment. Wherefore it was 
rcvcrfcd {a). 

{d) Sed vide i6. & 17. Car. 2. Ci 8. and 4. WII1.& Mary, c ia« 

Bacon againft HilL Cme 18. 

trinity Term, 37. Eliz, Roll 382. 
'TT^RESPASS. Upon a fpecial verdift it was found, that one -^. dcvifcsinre- 

Jfff^ry Hill was feifed of three tenements, viz. RawtingSy^^^^^^^^^ 
Rivets^ and Downings, and had iffue three fons, viz. John^ Richard^ ^^^xL three 
and Robert ; and by his will in writing devifed all thofe tenements fons, with the 
to his wife for her life ; and after her deceafe, that his tenement benefit of furvU 
callcd Rowlings fhould be to Johnhh fon ; and his tenement call- vorfli;p,«*io/.rt 
cd Rivets Ihould be to Richttrd his fon ; and his tenement called \, ^^Jf'^^'^'^'jr 
Doivmngs (being the land in queftioil) to Robert his fon. And « ZyfLnlliity 
turtlier devifed, tliat if one or two of his fons died, that then his «« 0/ my thret 
part or parts fhould remain to the furvivors. And further devifed ** duugbtersr 
(having three daughters) to every of them 10 1. " to be paid out of Provided any 
*' his land by every of his fons as foon as they fhall enter their « havr^ii#"nd 
" parts, after the death of their motlacr, as aforefaid." And in the « die before he 

<* cnleis into hit 
*^ pvt, then his part ihaU remain to the btirs •/ brt My^ and not go to his brothers, as aforefaid.** — — 
tbefe Words convey an eftace for fife only, and not an eftate uil. Ante, 2041 378. 6. Co. |6* 
t. lor. 249. MQor«464« ?olkxf* 553. GUb,Dev. 35. CQW|isr» 835. Dougl. 321. 

end 



498 Michaelmas Term, 38. and 39. Eliz. In B. R, 

Bacon end of the will putstliis claufc: "Provided always, if it fortune 
^autft u aj^y Qf ^y (aid /i«j ta marry, and have iffue, and to die, before 
'^^* ** he enters his part ; then 1 will, that his part Ihall remain to his 
** heir of his body, and not remain to his other brothers, as afore- 
" faid." -'And tlicy further found, that tnc devifor died, and af- 
terward his feme died, and every of the fons entered into their 
parts ; and after Robert had ilTue the defendant, and died : and 
john the eldeft fon had iflue a daughter, married to Bacon the 
plaintiff: and. Whether the fon of Robert fhall have this land as 
heir in tail, or heir in fee-fimplc ? for that his father's dcvife was 
paying lol. which being a confideration, gives unto him a fee, or 
A»tc, 37S, at leaftwife a fee tail ; as Takfield ai-gued for the defendant. 
The Court refolved, thatiJc^^/ fhould not have a fee fimple j 
for although it is devifcd that every one fliould pay a confideration, 
t;/z. lol. yet it being further limited, that after the death of every 
of them it fliould remain over ; tliat Ihews his intent, that he 
Ihould have it for his life only, notwitliftanding that limitation of 
the payment. — Gawdy, Jufltce^ held, that he Ihould have an 
cflate tail by this devife ; for when he willed that this iflue fhould 
have it, although tlie father did not enter his part, a fortiori he in- 
tended that his iflue fhould have it by defcent, when he entered 
his part and died, having ifTue. — Popham, Clench, and 
Fenner i contra* For an intention fhall never be taken to be 
againfl the exprcfs letter of a will : and here by the prcmifles it is 
not limited but for life, and die lafl claufe doth not limit an eflatc 
tail, but where he had iflue, and died before he entered his part; 
fo it is limited upon a condition which is not performed ; where- 
fore, &c. And Popham faid, it might be intended that he limited 
it in this manner, becaufe if the father had died before he had en- 
tered and taken the profits, that he might by fuch means have pro- 
vided for his ifTue, and that then his ifTuc fhould have it \ other- 
wife not. Wherefore it was adjudged for the plaintiff. 

^^** »5' Eaft againfl Harding. 

Hilary Ternty 37. E/r«. Roll 996. 
A kafc for»i r JECTI6NE FIRMiE. A fpecial verdift was found, that 
"hMc^^'i^oli ^''' ^^^^y ^^^ ^^ ^^^^^^ ^" ^^ of the manor of ^arender^ in 

licence is a for- the'county of Bucks^ whereof the land, &c. was parcel, &c. and 
fciture of the copyhold land, and demifable in fee, &c. and that Sir Henry Lea 
cflate, though granted it by copy to the defendant : and further found, that tlic 
^J'^^^l^^'^^)^ faid Sir Henry Lea infeofied one Keen of the faid land, who let it for 
/!/fcr^'anH^*the twentv-onc years to the plaintiff:- and afterwards, vi%. 2^. Eliz. the 
jeffccdicd before defendant cut down two elms, being timber, to repair bis houfe : and 
jic was pcffcfled that he let the land for three years by parol only, to begin the next 
. of'the lerm } Michaelmas : and that the leffee died before Michaelmas : and that 
dowiwr^for^ afterwards the leffee of the plaintiff^ entered, and the defendant re- 
repairs is no entered and oufled him : and that upon the Tuefday before the 
forfeiture. verdift found he had beflowed one of the elms for repairing, and 
Ante, 192. 351. that the other remained ready ad reparationem faciendam ; and, &c. 
Moor, 392. i— Upon all this matter Ihewn, &c. Morr for the plaintiff movti^ 
Owen, 63. 

l,Roll.Abr.509. Gilb. T<?n. 234. u Saund. 142. x. Salk. 187. Cowp. 4S1. %t Term Rep. 7^5' 



Michaelmas Term, 38 . and 39. Eliz. In B. R. 499 

tbat in this cafe the copyhold was forfeited.— Firft, Becaufe there ^^*'^ 
is wafte committed, which of itfclf is a forfeiture in law, as HARnxKo^^ 
9. Hm. 4. is. And although it be found, that by the cuftom he 
might cut down for reparations, yet he ought in convenient time ^^ *9** 
to employ it ; otherwife it is a forfeiture. And" it is found, that 
they were cut down in 32. Eliz. ajid not employed until 37. Eliz. 
after this adion brought, and the one of them not yet employed ; 
(o for that it is forfeited. — Secondly, The leafc here made is a 
forfeiture. For, by making that leafe, he took upon him to make 
a greater eftate than he had any authority to do ; and although it 
vere by parol only, yet all is one^ and the making of the leafe» 
«id entry of the leflce, is a diflcifin ; which is th» reafon that it a prefentmeor 
is a forfeiture in itfelf.— Budsey, for the defenianu * Jved, that ig not necdTaiy 
there was not any forfeiture ; and it there were, yet the lord can- to take advan- 
not take any advantage thereof before it be prefented by the ho- J'?* ^ • ^' 
mage.— But all the Court againft it; for the prefentment °*"'^ 
is not of neccffity, but for the lord's better inftruftion of his p***^'^'**' 
title ; and he may, if he will, take advantage of it before the pre- ,.^0^ ^*br ^^ 
fcntment. And all the Juftices held, that the making of this leafe \Aoat[\%^^u 
for years is a forfeiture m itfclf, whea there is not any cuftom to Heti. 121. 
warrant it ; for he hath no authority by the law to make fuch an »• Buiit. \%^ 
eftate. And although this is a leafe to begin at a future day, and \^^il^^ 
the leftc^ hatli not entered, yet it is a forfeiture prefently \ for it cro.'jac.%oi. 
is a good leafe between the parties. Secondly, As to the cutting 308*. 
down the trees, they were not all agreed whether it were a for- Cro. Car vyj* . 
feiture, iji regard it was found that they were neceflary for repa- '•Bac.Abn484, 
rations, and that he cut them for that purpofe. Gawdty and J^^ ^™* ^* 
Fekner held, that it was not any forfeiture ; for it is found that oub. Ten.a36« 
he employed one ; and it is well enough in refpeA of the time ; 246. 
for It may be they were not fufficiently feafoned before. Ajid it >»• Mod. 97. 
is found they were cut down for that purpofe, and are not other- 
wife employed ; wherefore it cannot be any forfeiture. And 
Fekner faid, although that tree which is not employed is more 
than was fufficient to repair the houfe ; ^et, feeing that he cut it 
down for that purpofe, and pei^dventure did not know what would 
ferve for that purpofe, it is not any forfeiture ; for it was adjudged 
in this court, where one cut down wood to make hedges, and ufed 
the greater part thereof in hedgine, yet for the reft, which was cut *• Stund. 143^ 
down for that purpofe, no titlies mould be paid. — But it was then The grantee of ; 
moved, admitting there were a forfeiture. Whether the leflee for ^^ inheritance 
years of the feoffee (hall take advantage thereof ? for it was agreed ^f a copyhold, 
by aU the Juftices, that the feoffee himfelf, if he had not made thaf yian! fliaU uk^ 
leafe, might have taken advantage of the forfeiture; for he is advantage of a 
dcmtmts of tliat copyhold. But whether his leflce might enter, forfeiture. 
Gawdy and Fenneh doubted; but they agreed, that leflee ^"^' *5*' 
for years of a manor may take advantage of the forfeiture of a i.RoiLAbr.509, 
copyhold. But Poph am and Clench held clearly, that leflce for ^'^*" 39*- 
years of the feoffee might well take advantage of that forfeiture ; 2^'^^* 
for the copyholder, as to the forfeiture of his eftate, remains in all i.Bac.Abr.4S8, 
degrees as before the feverancethtteoi from the manor. Wherefore, Giib. lea'.zo^l 
&c Etadjournaiun 244- 

3. Term Rep. 

Brown *^*- 



5^ Michaelmas Term, 38. and 39. EUz. InB.R. 

c^ss 10. Brown againft Michel- 

Trhiity Term, 37. Elix. Roll 66X. 

jTe^aaiofi lies T^ RROR of a judgment in the common pleas, for thefc words: 

fcr laying a nian T. 4* j^f^.^ Broum (Innuendo the plaintiff) hath delivered untruths 

fes <i.i.vc.cd a ^jp^j^ his oath, in bis anfwer to the biU of 7- S. in the chan- 

Ks oath in n- cery : and there the plaintiff recovered. 1 he error now af- 

iv/tr to a bill in ligned wa^, tliat the words were not aflionable. — And all the 

c^ity. Court {abfente Gawdy) agreed, that the words were not aftion* 

Woy, 36. *hle. For a man doth not fwcar all tilings in his anfwer to be true ; 

4.Bac.Abr.5ot, but only thofc which are of his own knowledge ; and for the 

y>V others, tliat he believes them to be true. Ai)d it may peradventure 

'*. .^""^' V^ he untrue in Ibme matter of circumttance, and not in matter of 

i. rTui/^ fubftance, which is not material ; nor is any perjury, or offence, 

and fo no action lies. And the judgment was reverftd. And it 

was faid at the bar, that the judgment in the common pleas was 

entered by the plaintiff againft tlic direftion of that Court* 

Case 21. Aiiftyn agahift Twyne^ 

Trinity Term, 37. Eliz, Roll 348. / 

TfTo dfurchcs Tp JECTIONE FlRMiE. Upon a fpecial verdidt it was found, 

«rfiofe reverses H* xhdil oxiC Henry Dean being patron of two churches, viz, the 

*o^mni^*n^"' church oi Dean and the church of JJh, within a mile together ; 

lv;r r!fpc*aive ^^^ ^^^^ ^^ ^^^ valuc of ten pounds, and the otlier of the yalue of 

c6ar^c5 may be eight pounds, and more ; the ordinary, by the affcnt of the patron, 

■niied and con- united and confolidated the fame churches ; and the fame day the 

fcjidatcd by the pa^^on Confirmed that union ; and afterwards the queen, reciting 

SttTffou cnhc ^'^ union, ratifies and confirms it by her letters patents : and, 

IKurons, if it be Whether it were a good union ? was the queftion. — It was agreed 

aiiervkaids cou- by the counfel on both fides, that this union rcfted at the common 

ferm.d by the jj^^, and it is out of the ftatute of 37. Hen. 8. c. 21. (a) bccaufc 

^f \*aiuc^be ^^^ churches are above the valuc of eight pounds mentioned in that 

above^si.per" ftatute.— ATKINSON, /or the tlcuntiffy' moved, that it was not a 

armnm. good union ; for it ought to DC by a precedent licence from the 

Fort. 719. queen; and a fubfequent confirmation will not ferve ; for fhc 

a.RoU.Abr.778, ought to be tlic firft agent in the making an union ; of, at Icaftwife, 

Moor, 40S.661. give the precedent afient thereto, as 50. Edw, 3. pL 26. 21. Edw. 3. 

Cro. jac. 51?. ^i 5. and 19. Edw. 3. ** Garf' 18.— Foster e contra. The or- 

lA Raym. 196. ^jjp^^ry is the principal aftor in the union, and if he doth it with 

J'strange, 516. *'^^ confent ot the patron and queen, be that fubfequent or precc- 

519. ' dent, it fufficeth. Vide 40. Edw. ^,pL 28. 6. Heti. 7. pL 14. 1 1 . Hen. 7. 

».5tra.837. y>/. 6. 9. Hen. 6. pi. 22. — ^Gawdy, Clench, and Fenner were 

of the fame opinion, that this union was good, and the con^ 

firmation is well enough for the time. — Popham. I agree that 

fuch an union, made at the common law, was good ; and it was 

not material whether the queen's aflent be precedent or fubfequent. 

But 1 conceive that it is not i^ood at this day ; for by the ftatute of 

37. Hen. 8. c. 21. there cannot be any union made of any church 

exceeding the value of eight pounds. For although the ftatute is 

in the aifirmative, that the ordinary may make an union wliere 

the church is under the value of eight pounds; yet therein is a 

negative implied, that he fhall not make fuch an union where 

(«) Sec 17. Car. %. c. 3. and 4. ic 5. Will. &; Mary, c. is. 

the 



M&rhadinas Tenn, 38. and 39. Eliz. In B. R. 502 

the charch is above die value of eight pounds. For, by the com- Au^tt* 
moa kw, the ordinary of himfelf might have made an union of "/f 7j«. 
thofe churches which were poor, and the one not having fufficient 
Co maintain a minifter, by the confent of the patron, without any 
confirmation from the king. But what fhould be faid to be a poor 
church, was the doubt. And this ilatute of 37. Hen. 8. c. 21. 
hith put it in certain, viz. where it is not above the value of eight 
pounds, and that fuch an union fhall be good without the king's 
confirmation. For, at the common law, the ordinary could not 
have made an union unlefs where the church was poor. And the 
fiitute herein alfo hath an implied negative, that there never fhall 
be an union where tlic one fuiBceth to maintain a minifter, which 
the law accounts to be eight pounds. For there is a prtruifo in the 
ad, that if the people of any church will increafe the value to eight 
pounds, that the union ihall be void ; which Ihews the intent of 
the ftatute to avoid accumulation, and to reftrain the authority in 
uniting of benefices which they had by the common law.— 
Gawdv and Fenner e contra. For the 37. Hen. 8. c, 21. is only 
in the affirmative, and not with a negative ; and then it never takes 
away the common law, as appears 33. Het?. 8. pL 50. and 4. tff 5, 
PhiL tsf Afary, pL 135. And at the common law the ordinary, by 
confent of the patron, without the king's confirmation, might 
have mftde an union of churches which v\xrc poor ; but not of 
churches which had fufficient to fervc the cure, each of them by 
itfdf, without the king's confirmation : but by the confent of the 
king, patron, and ordinary, an union may be of any churches, of 
wbatfoever value it be. And this authority is not taken away by 
Jthe fiatute, nor rcllrained, but limited of what an union may be 
made without the king. Wherefore, &c.— Popham. We are to 
hear the civilians, where an union may be made at ilie canon law. 
— Afterwards Doctor STEWAKo/or the defendant^ and Doctor 
Cro M PTON for the pfaintifffVfCTt heard in court. A nd i t was agreed 
bv both, that by the canon law the ordinary, ^\ ith the patron's 
aflcnt, might have made an union of two churches, although either 
of tlicm were worth one hundred pounds per anmwi, and fufficient 
to maintain a minifter of itfelf, and this by the exprefs text of the 
canon law. For an union may be made for divers caufcs, vJz. po- 
verty of the people, or paucity of the parilhioners, or the like. 
And fuch an union might have been made without the pope's con- 
firmation. And if an union had been unlawfully made, yet 
(Steward faid) tliat being afterwards confirmed by the pope, it 
was for ever good and valid. And fuch authority as the pope 
had, the queen now hath by tlie ftatutes. And Crompton de- 
nied not but that fuch unions might be made, of what value foever 
the churches were ; but he faid, that in this cafe the union was 
made upon a fuppofed and pietended poverty, which appears to be 
falfe, and fo the ordinary deceived, quia ex falfitate ; wherefore it 
is void. — But THE Court faid, that thejr were not to difpute of 
the validity of the union, for that comes in quell ion in the fpi-. 
ritual court. But forafmuch as an union in fuch cafe might be 
m^wle at the common law, it is not reftrained by the ftatutc. 
Wherefore, by the aflent of Popham, it was adjudged for the de- 
fendant that it was a good union^ 

X 

Baptift 



SP% Michaelmas Term^ 38. and 39. Eliz. In B. R. 

Ca$e X2. Baptift againft Michelbourn* 

EafterTerm^ 1%, Eli%^ Roll ^^2, 
Perfona] a6lion8 t7 RROR o(z judgment in an a£lion upon the cafe upon a trover 
cannot be C^ jj^ ^^ Marjhalfea ; the trover and convcrfion being fuppofed 

ivS^^J(/l«,*un- *^ 5e«/A«;ari, 'within the verge; and adjudged for the plaintifF* 
kfs one of the The error affigned was, Becaufe none of the parties were del hojhl 
parties are with- dt royne^ nor living witliin the virge : and it was thereupon de- 
\ntht btfitidt murred. — Godfrey moved, that for this caufe the judgment 
^y' was erroneous, for that court cannot hold pleas betwixt ftrangers: 

S.C. 6.Co.io.b. and in proof tliercof he cited a precedent, Hill. i. Edw. 4. Roll 47. 
J?^°- A^' ^* ^^ ^^ ^^^* ^f ^^l^^^^y 278* 10. Hen. 6. pi. 13. 7. Hen. 6. */. 31. 
P^gi' J ' -^ — PoPH AM and Fenner held, that the adion well lay ; for the 
463. * ' ftatutc of Arttcull fuper Cbartasy cap. 3. which Ihews that trefpaflcs 

1. Term Rep, Ihallnot be brought there, nor aftion betwixt others than of the 
*5'» hoftel of the king, is intended .of trefpaflcs for land, and not of 

fuch perfonal anions ; and there be many precedents, that in 
all tinlies fuch perfonal anions have been there brought and al- 
lowed. But Gawdy doubted thereof. But they all held, that if 
tlie aftion be . not maintainable there, the judgment is void ; yet 
error lies thereof. Sed adjournatur. — Note , Another precedent was 
(«V.Bom.zo«. Ihewn \n Aftch. 32. Hen. 6. Pm. 27. betwixt Rede and Purcas {a) ^ 
Vide 6. Co. 21. error of a judgment in trefpafs in the Mar/balfea^ becaufe that 

i^S«t'' was ^^^^ ^^ ^^^™ ^^^^ ^^' *2/^^' ^^ ^^y^ ^^ reverfed. 
reverfed in the principal cafe, but never entered. 

CAf E aj. Parrat againft Carpenter, 

To fay of a mi- A CTION upon the cafe for words. And declares, Whereas he was 
niftcrthat heis -^ *. p^rfon ot D. and a preacher, that the defendant fpake tliefc 
fyX^^^x^T."^^^^^ ' '' Porrai' {innuendo the plaintiff) " is an adulterer, and 
Ante, 94^ * ** bath had two children by tlie wife of J. S. and I will caufe him 

2. Salk. 66x. " ^^ ^ deprived for it." After verdift it was moved, that an ac- 

tion lay for thefe words ; for they be very flanderous to tlie plain- 
tiff, and touch him in his credit and pront, aYid are c^ufe of depri- 
vation, if they be true. — But the Court held, that it is aflandcr 
examinable only in the fpiritual court, and not here. Wherefore 
it was Adjudged for the defendant. 

Caie 24. Broughton againft Randall. 

Trinity Term^ 38. £//«. Roll 876. 
^anubie o'lTthe F^^^^ ®^ * judgment in Wales in dower. The parties were 
fwuro of a" v«! *^ ifl^^^ 5 ^'^^ *^ *^ ^^7 ^^ ^^ ventre fadias returned, none of 
iiiV<,batonlyon the jurors appeared ; whereupon an habeas corpora^ with a decern 
the return of a tales (<?), was awarded ; and thereupon a trial had with part of the 
***jf/ f'*'^*"'* principal pannel and part of the tales^ and judgment accordingly* 
pr tftruigas. *j,j^^ error affigned was, becaufe an habeas corpora^ with a decern 
ft.R0il.Abr.67f. /^/^j^ ^as awarded, where none of the principal pannel appear* 
Cro*^ Uc.*'^^^.* ed ; and a tales ought not to be awarded, but where twa at 
6.^Mod. '146. 'c^ft of the principal pannel appeared ; fo that they of the taks^ 
a.Hawkin6,576. with the prmcipal jurors who appeared, might make a jury, 
td, Rayfn.317. 

(«) See 35* Hen. 8. c. €• 4. Ic 5. Phil« ft Mary, c. 7. 5. EKz. c. 25. 14. Elis« c. 9. 
i 7. ft 8. WiU. 3. 6. 3a. 

as 



Michaelmas Term, 38. and 39. Eliz* In B.H. 503 

IS 27. Hen. 6. pi. 10. and 37. Hen. 6. " Tales,'* Brook. 12. But aU ^""J'^"!"" 
thejuftices bcldythat if upon an habeas corpora and dl/iringas nowt r*^dall. 
of the jury appeared, yet a decern tales Ihall be awarded ; but 
not upon the venire facias ; and tliat this Is tlie difference ; and *°* ^°* *^^ ^ 
therefore, as tliis cafe is, it is erroneous. — But it was then faid, that 
it was altogether the courfe in JVales, to award tales in fuch cafes. 
And THE Court faid, if it were fo, it is not any error: for the 
cuftom of every court is a law in that court; as 10. Edw. 4. and 
5. Edw. 4. are. — ^But it was then faid, that he ought to have 
pleaded itfpecially,otherwife tiie Court cannot be informed there- 
of. But THE Court faid thereto, they might be informed thereof 
by precedents, and by a certificate from tlie Judges there, whereto 5. Co. «$. 
they would give crcait; and fo was now lately done, where in a i.Saund. 73,74ft 
fusd d deforceaty in Wales \ becaufc we were informed, tliat the 
common courfe was to give judgment final in that a£tion, it was no 
error. And fo the Court appointed here : wherefore adjourna- 
iwr, — ^Afterwards, becaufe no precedents were (hewn, it was reverfed. The ^jfg ^^^ 
Note here, the title of tlie feme to recover dower was, that longcft liver u 
the father and fon were joint-tenants to them and the heirs of the two jo»ntcnaoc« 
fon ; and they were both hanged in one cart : but becaufe the ^^ ^ endow- 
fon (as was depofcd by witnefTes) furvived, as appeared by fome * 
tokens, viz, his Ihaking his legs, his feme thereupon demanded ^' g^* ^'' '' 
dower. And upon this ilTue nunques felfie dower ^ tliis matter was Cro.'jac]6f5. 
found for the demandant. i. Atk. 442. 

a. Bl. Com. 132. Bull. N, P. xi8. 3. Bac. Abr. 127. in notU. Perk. 334. 

Fetherfton verfus AUybon. Case 25, 

T\£BT againft an executor, upon an obligation made by his A defeodant 
^^ tcllator. The plaintiff was nonfuited : the defendant had cxccutoi fluH 
cofts by order of Court. Otherwife it is, where an executor is *^*^J f^^* ^ * 
plaintiff, and is nonfuited. For it cannot be intended, that it "°" "* ' 
was conceived upon malice by him. l^ide 23. Hen, 8. c. 15. ,61! ^ ^'^ 
4. Jac. 1. C. 3. 8. Eli%. c. 2. 13. Car. 2. C. 2. 8. Iff 9. fVilL 3. c. 1 1. cVo! Car, 29, 
and 4- f^ 5. ^nn. c. 16. * 219. 

Hutt. 69. Yciv. i68, 1. Bac. Abr. 518, 1. Bac. Abr. 446. 4. Mod. 245, Stra. 871.^ 3* B^rr- *4St* 
Sayer^s Law of Cofts, 94. 

The Earl of Lincoln verfus Flower. c^si %£. 

^ Eafier Term, 38. EUz.. Roll 159. 
pRROR of a judgment in debt, upon an obligation, in the A w/^/ai liet 
court of common pleas, where the earl pleaded non efifanum\ as^'n^ a peer 
and found againft him, and judgment given. Idco capiatur. — And a^e^to the"* *' 
thereupon errOr ailigned, becaulc he was a peer of the realm, and crown, 
a capias {a) lies not againft him. — Sednon allocatur. For by this Ante, 170. 
pica found againft him a fine is due to the queen : and none Ihall ' ^^^* a^- 
have any privilege, againft the queen ; therefore catiatur pro fim ^*^^ ^ 
well lies. — And the judgment was affirmed. 27. Hen. 8. pi. 2a. s^k. ^4! ^' 
11. Hen. 4. pi. 15. %. Hale loo. 

(4) By 5. 9c 6. Will. 3* c. it* the cmpias ffjine is taken away. See 2. Bac. Abr. 507. 

Elinor Bliffet verfus Johnfon. Case 27. 

A CTION for thefe words : ** Thoii" {innuendo the plaintiff) !"•" aaionfor 
**• *^ " art a villainous and a murderous quean ; for thou didft mur- ^'o^ds, i; i^fuf- 
« dcr my laft wife." The defendant pleaded not guilty. The jury J^tJJa^o'L'v'I 
found, that the defendant fpake thefe words of the plaintiff to been fpok^n in 
one Spinkfoot : " She is a villainous, murderous quean ; for fhe the third perftm, 
*' did murder my laft wife." Et Jt, fcfr.— Poph am and Fenner ^^^"k*^ ^^"^ »« 
held, that this verdift is againft the plaintiff; for they are not J) J," '*'■''''"'' 
the &mc words mentioned in the declaration. And if the defendant Ante,'224- 

had 2.Roli.Ab.7iS. 



50+ Michaelmas Term, 38, and 39, Elis* In B. R. 

BLIS8BT had been found guilty generally, and the plaintiff had recovered, 
UHv'ios ^^^ recovery would not have been a bar in a new action for thcfe 
A recovery*'* words : for they are fo variant, tliat he cannot help himfelf with 
pleaded without *^ averment that they arc the fame words. But Gawdy e contra; 
ftiiwiDg where for they are all one in fubftance, and the difference to whom they 
the court was were fpokcn, is not material. And they may be well averred in 
held, is bad on ^ ^^^ aftion for thefe words, that the wcwds in the firft dedara- 

Tt^^^ tion and thefe are all one. — Therefore it was adjourned^ 
Ca»» »« ^^^*' Thomfon verfus' Clerk. 

Mich. Term, 38. ^ 39. F.Iiz. RolL 228. 
On a/./«. the HT ROVER and Conversion of Goods, at D. in comitat, Nott. 
goods cannot be ^ The defendant faith, that he recovered againft tlie plaintiff 
ddivercd to the ^ debt of 20l. by bill in the queen's bench, and thereupon had a 
^s^aiot!lih\sf^^^ dircftcd to the Iheriff of Tort, who, at ffakefieid, in 

debt. comitat. Eborum^ feized thofe goods, and delivered them unto him 

in fatis^dion of this execution ; and fo juftiiies the converfion. 

— It was thereupon demurred, and without argument ruled, that 
I. Term Rep- the pleading was ill. — Firft, Becaufe he fhewed not where the 
73i« queen's bench was at the time of tlie recovery, it being a court 

Traverfc. removeable ; as 5. Edw. 4. fL 8. is. -r- Secondly, The trover and 

Cro. jac. 372. converfion is fuppofed to be in the county of Nottingham^ and he 
I. wiif. gi. juftifies in the county oiTork^ without traveriing, &c. — Thirdly, 
Cto^Uc'Tt l^c fl^criff upon a writ of/^iybWaj cannot deliver the dcfend- 
LuJicSo!*^ ^^^'^ goods to the plaintiff, in fatisfadion of his debt (^).— 
a. Vent. 95, Wherefore it was adjudged for the plaintiff. 
Noy, 107. ».Sbow.87. 3. Lev. 103. Comb. 452. Ld. Raym. 251* 6. Mod. 292. 

Case 29. Gyppcn verftis Bunney. 

TTPON a fpccial verdift the cafe was, A copyholder in fee 
'7^co*"holdcr furrendered to the ufe of one for life, the remainder to an- 

tenanT^fcr^iifc^ ^^^^ Jn fee. Tenant for life is admitted. Afterwards he in re- 
is an admlitancc mainder furrenders to the ufe of J. S. in fee, of which furrendcr 
of him in re- the lord accepted, and admitted /. 5. The tenant for life dies. 
maindCT. and fhe heir of the firft copyholder enters, and J. S. oufts him. £t 
«ftTn,i:S/..^--Co?^ Jmrney General moved that J. S ihoM have 
of the manor "^is land. For firft, the admittance of the tenant tor hte is lum- 
fliaU have only cient for him in remainder, to veft the remainder in him; as 
one fine. jg. Ediv. 4. a figniory is granted for life with the remainder to 

^°Roii Ab another, attornment to the tenant for life is good to him in rc- 
t!oor,46s.^^^' maindcr. So of a devife of goods, remainder over; the executor 
4. Co'. 23. confents that the firft devifor Ihall have them : it is good for the 
10. Co. 47« *>• other. — Secondly, the lord's acceptance of the furrender is qua/i 
3Lcv.107.308. an admittance ; for in that he allows him to make a furrender, he 
1^ Vwit%6o. ^'^^'■^^y admits him to have a remainder, whereof to make a fur- 
Giib.Ten. 104. render. Wherefore, &c. — Popham. Tenant for life and he in 
I. Mod. i2o'. remainder have but one cftate in law; and therefore the admit- 
i.Burr. 210. tancc of the one (hall ferve the other as a livery or attornment. 
Strange, 654. y^^^ reafon which is objefted againft it is, becaufe the lord Ihould 
xf.M0d.73.xe7. ^^^^ ^^^^ ^^^^ ^^^^ °^ ^^"^ *" remainder. But it feemeth to me, 
Fi'tig. 2R7. ^bat there is onlv one fine due upon this furrender, which the 
i.Peer.wiU. 63. tenant for life fhall pay before his admittance ; as where the 
td. Ray. 1^4. queen's tenant in capite aliens for life, remainder over, there is but 
3?Pecr.WiU.63. °^^ ^^^^ ^"^ for this alienation : fo here, unlefs there be a fpccial 
\.Vttn.%2^. cuftom that two fines fhall be due. Fenner of the fame opinion. 
i.Bac.Abr.475. But becaufe the other Judges were abfcnt, it was adjourned. 

479* 4. Bw. Abr. 331. Doug). 727. 

Crifp 



IWBchddmas Terift, 38. and 39. Eiiz. In B. R. 505 



Crifp againft Fryer. 

Trinity Term, 25. Eiiz. Roll 588, 



nrkESPASS. upon demurrer tlie cafe was, Jo. Rou/e was ifacopyhoMcr 
* (cifed in fee of the manor of Royden in Suffolk^ whereof the be to pay rent 
land in queiiion was parcel^ and whereof the rlaintiffwas a copy- at a certain day, 
holder in fee, rendering 20s. per annum at Michaelmas. At the *"** ^^* **^ <>^ 
fcaft of Si, Michael, upon the laft inftant of the day, the lord came L^^^JJeUoJ** 
tiiitlicr, and demanded the rent then due, and for two years before ; the laft inAant 
and none was there to pay it : whereupon the lord there con- of thj .a/ and 
tinued, demanding his rent, until after fun-fet ; and for non-pay- ^'emands hit 
mcnt entered for a forfeiture : aiyl. Whether it were a forfeiture [^"^n^""* 
or not ? was the fole queftion.— It was moved, that it was not a beth««°to"tti5 
forfeiture ; becaufc it was not any wilful denial, but only a negli- it, it i$ a forfeit- , 
gent non-payment ; and this diverfity hath been commonly urc of the date. 
agreed ; and tlie lord is not at any mifchief : for he may diftrain ^"*> '49- 353* 
for his rent; as 9. Rich. 2. " Avowry^** 86. is. And fo it was 5- ^- Noy, 5g, 
adjudged alfo, MicL 36. Id 37. Eiiz. in C. B. in Faughan's Cafe, |^C. Moor,35o. 
thiat rfje lord may well avow for his rent. Wherefore, &c. — s*c. i. Roll. 
Gawdy, Jufticc. The lord demanding his rent upon the laft Abr. 506. 
inftant of the day whereon it is due, and the tenant being not L>tt. Rep. 26S« 
there to pay it, I conceive to be a forfeiture, as well as if he had ^°- ^**P* '^** 
made an cxprefs denial to pay it ; for this non-payment is a denial ^^l^ a'"^** 
in law ; as 30. Hen. 8. pL 42 is : and as Littleton^ Se£l. 23^. faith, margin. 
non-payment of a rent feck upon demand is a denial in law, Hob. 135. 183. 
whereof die grantee might have an ailife. But if the demand had ^*^*'* Ten. 226. 
been here at any other day than the fame day when it was due; "^ *^°' ^^ 
the non-payment thereof had not been any forfeiture ; for the te- ^^^ *' ^ 
nant is t>ound to attend upon the day of payment of his rent, chan. Ca. 95. 
when the lord alfo is bound to demand it, and not at any otlier »• Vera. 537* 
day. And if it Ihould not be a forfeiture it would be a great mif- *^^ 
chief to lords, to drive them to diftrain and avow for every 
fixpence or twelvepence which fhould .be due from his copyholder. 
— Fenner to the contrary. The entry for the forfeiture is for a 
condition in fait ^ not for a condition in law ; and the condition ift 
law is not for non-payment of the rent, but for the refufal to pay 
his rent. And a denial in law fhall not ferve to make a forfeiture, 
but there ought to be an exprefs denial in fait : otlierwife it would 
be very mifchievous to a copyholder, that for fuch a negligent non- 
payment there Ihould be a' forfeiture of his eftate.-^PoPHAM, 
Clnef Juflice. It is a forfeiture : for the copyhold eftate is main- ' 

tained by the cuftom of the manor ; and therefore he otight to 
perform his cuftoms and duties, on his part to be performed, 
which he hath not done here, by his non-payment of his rent at 
the day it was due and demanded. And truly a denial in law is as 
much a forfeiture as a denial in fait : as if the lord demands his rent 
upon the day, and if the tenant is there and faith nothing, it is 
clearly a forfeiture. And 23. Eiiz. Sir Chriflopher Hatton's Cafe, 
againft his tenants of fVellingborough, it was agreed by all the 
Joftices, that if a copyholder comes not to the lord's court after 
a prticular fummons made to their perfons to come, it is a for- 
feiture without any exprefs denial to come: yet it was there 
agreed, that the not coming after a general fummons At the church 
c&o. ELiz. PA&T a. M m was 



5o6 Michaelmas Term, 38. and 39. Eliz# In R R. 

C«isF ^as not any forfeitvire {quod ^uh hie per Curiam concejfum) : but it 
againfi y^g there agreed, that if he might excufe his not coining upon any 
good caufc, aslicknefs or the like, &c. it fhould fave the forfeiture; 
and there is not any difference betwixt thefe cafes. And admitting 
here that the lord had warned his tenant that he (hotfld demand 
his rent upon die land at the day it was due, and commanded him 
to be there ready to pay it, and>^e lord upon die day demands the 
rent, and none is there to pay it, it had been clearly aforieiture. So 
here : for the law appoints the day for the jpayment as ftrai'tly as 
if the lord had given exprefs notice thereof. Wherefore, &c.-— 
Et adjournatur* 

^^•* ^'* Dame Grefliam agalnft Banning. 

Hilary Tfmh 38. EU». Roll 847. 
• 
Ona/tirr/tfftVi* OCIRE FACIAS upon a recognifance made unto her by one 
*• * recog^-^ "^ Gcrveys^ who was returned d^ ; whereupon flie fued a new 
rf^^^^* ^** fcire facias againft the heir of Gerveys^ and the terre-tenant : upon 
cogniior was which thc IherifF returned, that he had fummoned Paul Banning^ 
feifed of fucb who was tenant of the manor of S. which was the land ofGerveys^ 
lands is not after the recognifance acknowledged ; whereupon Paul Banning 
P^^T!^ h^ *he *^^"^^ *^ ^"^ pleaded, that one Mann was feifed of dirce acres in D. 
I^tfjMiAw^wcre '^'^'^^^ G^f^^yj was feifed in fee after the recognifance made: 
jointly feiied. judement : Ji a^io. The plaintiff £iith, that Gtrveys was not feifed 
Ante, 41. in ree of thofe three acres after thc recognifance, &c. And there- 
l>oft. (S9. upon they wete at ifTue, and a fpecial vcrdift found, that " thc 
Moor, 4^9. «« faid Gtrveys and one B$dingfield were joindy feifed in fee of 
Cow^^* 66^' " thofe three aicres after the recognifance, &c. And therefore en^ 
DougL ^83. ** feoffed the faid Mami^ who is yet feifed thereof in foe. Ei fiy 
»• Term Rep. ** fe^f."— CoTENTRY and CoKE movcd, that diis verdift is found 
238. 447« for theplaintifF: for the iiTue being. Whether he was. feifed in fee 
of thofe three acres ? and it is found, that he was not feifed but of 
the moiety of them ; which being a fpecial ifTue, it is found againfl 
the defendant pleading this plea : but if it had been tniiy pleaded, 
that which is found had been fufficient to have abated 'the writ, 
and to iiave put the plaiiuiiF by from her execution : but being a 
falfe pica it is found againft the defendant; as 26. Hen. 8. fL 5. 
50. Hen* 8. jDy^r, 41. k^ 365. — But Godfrey moved, that the 
finding of this joint feilin fufficedx to maintain thc iflue : for eve- 
ry jointenantis feifed of the cndrety. — ^But all the Justices held 
to the contrary, that the verdiA upon dris reafon is found againft 
him who pleaded it : for jointenants in truth are but feifed of 
moieties. But Fenner faid, that in r^rd it now appears, upon 
this verdift found, that execution ought as well to be iued agamll 
Marm as againft Paul Banmnv the defendant, it fufficeth him, and 
is all one, as if it liad been found that he was feifed, as he hs^ 
pleaded ; as 40. Edvj* 3. pL 5. an alienaddh is fuppofed to be in 
fee, and found to be tor life only, it is well enough. — Popham 
and G AWD Y, I contra. Becaufe this is a fpecial plea, and ought to 
be found as it is pleaded : odierwife it will not fervc. And there is 
difference when the plea is to the point of the writ; and when it 
is a collateral plea, or in bar. Sed adjournatw . — ^Afterwards thc 
JLady Grejham died^ and fo the matter wa» determined. 

Briggs 



Michaelmas Term, 38, tod 39. Eli^* In B. R. 507 

Briggs againft Sheriff. Ca%%i%. 

TriMitjf Tirm, 37. £//«. R9I/ 359. or .354. 

TERROR of a judgment in the common pleas m trefpafs of batte- Though a phtn- 
ry. The error affigned was, H^ufe the declaration is, quo J cum ti^af^cr impar. 
the defendant fuch a day, &c. aSaulted and beat the plaintiff, &c. I'^^j^''^'''^* • 
fo it is quqfi^ recital, and not a direft affirmation, that he beat him, tfon^ yct?if Si 
*^c- — Cl.£rk. The firft declaration is fo ; but thereto the de- firft 'declaration 
fcndant imparled, and after entered this fecond declaration againft wa$ bad, judg. 
him, and in that cum is omitted ; and judgment is given thereup- ""^"^ *•" ^ 
on for the plaintiff.— 5^^/ non allocatur: for the firft declaration is ^^^'^ 
the principal ; and thereupon the judgment is given ; and tlic g^., ' • 
fecond ought to accord with the firft. £t non i convcr/o. Where- a/i^"o'6. 
fore it was reverfcd. Cro.jac. 53*7. 

Comp. Att»29ff, 

The Queen againft Vaughan. Cask 33. 

Hilary Term, 36. ELz. Roll%. 

INFORMATION of intrufion againft Vaughan. Upon not what (hall be 

guilty pleaded a fpecial vcrdift was found, that '* The prior of conftrucda am* 
'* JGng's-Langley^ in the county of iy<r//(?r//, anno 31. Hen. 8. fur- '«W,>*- 
" rendered the fcite of his priory, and all his lands, &c. to thcfj^?|f^'*^/j^^^^'' 
" king, by deed enrolled. Afterwards, in 31. Hen. 8. the king r© as to avoid* 
** granted the fcite of the monaftcry to the fufiragan of Dover for the king's pa- 
" his life ; who in 38. Hen. 8. died ; and that fcite came to the ^^'• 
** queen that now is. Afterwards, in the eighth year of her reign, ^'C- Moor,537, 
•* a commiflion iffucd to enquire in what eftate and reparations \^'^^^' 'i^ *' 
*.* that houfe was ; and thereby it was found to be ruinous ; and eoa/"^™ ^ 
•* the lord treafurer, and others, by commiflion, fold the ftone and 
" lead of the houfe. Afterwards, anno 16. Eliz. the quecngranted 
** the fcite of the f^id priory to Grimjione^ with a proviso, that 
** if the faid lands or tenements, or profits thereof, were not con- 
** cealed, fubftra£ted, or unjuftly detained from the queen, her 
** father, brother, or fifter, before the 14. of Eliz. that the patent 
" ihould be void ; and they further found, that tlie queen was not 
" anfwered any rent or profits thereof, befide tlie laid ftone and 
" lead, before the 14. of Eliz. Et Ji^ ^c" Upon this matter 
Coke, the fueen^s Aiiorney^ praved judgment for the queen: for 
there is not any land conveyed oy that patent but that which is 
concealed from the crown : but the priory, and that fcite npw in 
queftion, cannot be concealed; for it was by the prior's furrender 
cxprcffly mentioned, and fo revealed to the king. By the king's 
grant alfoic is revealed, being therein mentioned by exprefs words. 
Then if once it be revealed by exprcfs words, at the time of his 
title accrued, it can never be concealed as long as the crown hath 
not another title thereto : but if it be afterwards divefted from the 
crown, by the king's grant in fee, and ''afterwards- comes again to 
the crown by attainder of felony^ ; becaufe it is bj; a new title il 
may be concealed ; and that is in common experience ; and the 
iand itfclf Ihall never be faid to be concealed or unjuftly detained : 
and therefore it was adjudged in Pafch. 23. Eliz. betwixt Smith and 
Petoe^ that where king Henry the fourth granted land, parcel of the 
crown, by bis letters patents under the Dutchy feaj, which yns 

M m a Toid ; 



5o8 Michaelmas Term, 38. and 39. EUz. In B, R. 

The QjffkEw vqJJ . a^d the queen, who now is, granted thofe lands with a pro- 
^^amfl VI so, that if the lands were not concealed, that then, &c* it was 
ruled, that this land fhould not pafs : for land cannot be concealed, 
and therefore out of that proviso : and fo it was refolved in one 
Shaftoe^s Cafe of Ireland. Wherefore, &c. — After divers argu- 
ments on each fide, the CflyRT refolved for the queen : for 
they all agreed that it cannot oPboncealed after it once be revealed 
by any fpecial words in any record, unlefsthat land were abfolutc- 
ly given from the crown, and afterwards came unto it by a new 
title. And a concealment is only where lands are in the queen 
by attainder, or other title; and there is not anv record to inform 
her what lands they are : but here the record of^the furrender is of 
the fcile, and all the other lands, &c. for the fcite isexpreffed, that 
it is in the king : but for the otlierlands, they are in the generali- 
ty, and may be well concealed ; for there is not any recotd to 
fnew what they are. So where there is any office to entitle the 
queen after an attainder, or any furvey, thofe lands which are par- 
ticularly mentioned in the office, or furvey, cannot afterwards be faid 
to be concealed ; for they be revealed to the queen by thofe re- 
cords. But if any land be omitted out of that lurvey, it may well 
be faid to be concealed. Popham faid, that all this was agreed, 
in the cafe of London and Sir Chrijiopber Hatton. So it palled not 
within the frovifo of the concealment : for patents are to be con- 
^TWtA fecundum intentioncm regis y and not in deceptionem. And here 
it was not intended to pafs any land, but that which was concealed, 
and firft revealed by Grimjioney which is not here, for the reafons 
before-mentioned. The greater queftion then is, Whether this 
be within the claufe of the lands and profits inde injujle dctenf ^c. 
Isfc.P And it was held by Popham and Gawdy, that it was 
not. For Popham faid, that nothing fhall be termed to be injujli 
detent^ from the queen, but that whereof the queen bad but a right 
only, and never had any poileffion. And thefe words arc inferred 
into patents, by reafon of a judgment in the exchequer, wlicrc an 
abbot was difleifed of certain land ; and afterwards the abbey and 
all the poiTeffions being given to king Henry the eighth, the queen 
granted this land, whereof the abbot was difleifed, by cxprefs 
words, with fuch a provi/oj that if they were not concealed, that 
then, &c. And adjudged that they paflcd not: for theking never 
had any title, but a right only to that land, and therefore the 
lands were unjuftly detained ; and therefore from that time it hath 
been ufcd to have thefe words, vel injujle detent^ isfc. But when 

10. Co. 114. b. the king had pofleffion thereof, as he had here by the death of the 
fufFragan who was tenant for life, it cannot be faid a detainer from 
her : for Ihe might have had an account againft any who takes the 
profitfs of thofe lands ; which proves that Ihe always was in poflef- 
fion of them. And here this land being waftc land, whereof no 
profits are anfwered to the queen, it cannot be faid to be an unjuft 
detainment from her. Wherefore, upon thefe reafons, it was ad- 
judged for the queen. Vide 10. Co. 114^ 

BlodweU 



Michaelmas Term, 38. and 39. Eliz. In B. R. 509 

BlodwcU againft Edvvards. Casi 34. 

HilmryTerm» 38. hlix. Roll T061. 

ERROR. The cafe was, John Blodwell, being feifcd of Theireafcnwhy 
land in fee, made a feoffment to the ufe of himfelf for life, « '^^" was a- 
i\\A after to the ufe of fuch iffue, and iffues males of the body of^^^^^^^^y^ 
Margatet Lloyd^ from eldcft to elddl|and who by common fuppo- 4cprd 5 'and the 
Stion or intendments ihould be adjudged or reputed to be begotten (hcnff '* name 
bv the laid John Blodivell upon the body of the faid Margaret Loyd^ muft ^ to the 
whether the faid iffue, and iffues males, fo born of the faid Mar- "^"^^^^^^l 
gar€t^ and reputed to be begotten upon her by the faid J. Blodivelly ^^ u^tUam 
Jrnt pfr kgem hiijus regni jinglia adjudicati et legitime muHerly begot- taUu 
ten, or unlawfully and immuUerly begotten betwixt the forefaids.c.Moor,43o. 
Attirgartt and the forefaid J, Blodwell ; and to the heirs of the bo- i.RoU.Abr.799. 
dies of fuch iffue, or iffues males, de feniore in feniorcm exijient. nat. a.Roll.Abr.43. 
di prtediffH Alargarcta In forma pradi^fa. Afterwards John Blodwell^^^^ 3S«. 
had iflue by tlie faid Margaret Richard Blodwell^ now plaintiff. 
Edwards, the defendant, recovered againft the faid John Blod^ 
Mdi, in an aflife 12. Elizabeth. John Blodwell died ; and Richard 
Bi^dweU brought error, as he in the remainder ; and averred, that 
he was the iffue engendered of the body of the faid Margaret^ and 
was always fince his birth, and yet is reputed to be engendered by 
the faid John Blodwell^ ^r.— The firft error aiiigned was, Becau/c 
the tenant in the affife pleads to the iffue in nul tort ; and at the' 
day of the habeas corpora returned, the cnty is, quidam recognitorum 
effifit vencrttniy et quidain non venerunt, Ideo a dijirin^as with a de^ 
am taUs was awarded, and tliereupon trial had ; an^ therefore er- 
roneous, becaufe it is not mentioned that the trial was deferred, 
and the tales awarded, pa defeifu jurat^um : and it may be, hot- 
withfbinding quidam juratorum non venerunt y that a full jury might 
have appeared; and tlien the deferring of the trial, and the 
awarding of tales^ was without caufe.- Fide 22. Edw. 4. t, 15. 
I. Rub. 3. pL 4. 15. Hen. 7. pL i6. — A fecond error affigned 
wa«, Becauie the (heriff's name was not to the return of the writ 
of habeas corpora^ nor to the return of the writ where the decern 
tales was returned : and for not putting his name to the return, it ^j^, too. 
was vicious, by the ftatute of lork^ 12. Edw. 2. c. 5. And for 
that vide 26* Hen. 8. pi. 3. 9. Edw. 4. pL 19. 1 1. Hen. 6. pL 94, 
And thefe be not holpen by any of the ftatutes of jeofails. And 
the recovery was before the ftatute of 18. Eliz. c, 16. Wherefore, 
kc. — And all the Court refolved, that both errors were mani- 
fcft; and for that caufe the judgment reverfable : and the counfel 
on the ottier fide did not much mlift upon them to defend them. 

But it was moved, that the plaintiff had not here fufficiently A remainder H* 
tntituled himfelf to, have any remainder, and then he cannot '"*"*^ ^<> f ^^f- 
have a writ of error ; for a remainder ought to be limited to af*^^ ^^tnejpt 
pcrfon in ejfc^ or who by intendment (hall come in effe^ during the " ^*^* ' 
particular eftate. But the law hath not any expectancy of a baf* Icia^RdSib? 
tard fon to be born which is not in ejfe at the time of die limita- 43/*' 
tion. And here it doth not appear by his averment that he is the s,a Noy, 35. 
lawful iffue. Wherefore, &c, — Gawoy, Admitting he were a ^-^^^-^e. 68l 

** Plowd. 31, 

2. Co. ^i. 
'- BL Com. 170. Co. Ut. 12$, Feame, 176. Powel on Dev. 339. 1, Atk. 410. 1. Peer. WUI, «a«^ 
See Mr. Har^ve*! uoie ij.CcUt. 3. b. 1 Eq. CaC Ab, »$i. 331, i. T«rm Rep. ,ox. 

M m 3 baftard^ 



5XO 

Blodwul 

WAKDI. 



Case 

yenuer 



3Sf 



Michaelmas Term, 38* and 39. Eliz. In B. H, 

baftard, yet the limitation to him is good ; for although he be not 
lawful inue, yet he is the iffue of his mother without qucAion ; 
and a remainder to a reputed fon is clearly good, as 41. EdWf 3, 
^A ig, and Dj/er^ 113* And the limitation here being to the eldeil 
iflue of the feme, he fhall take it, although he were a baftard ; for 
fo appears to be the exprefs intent of the deed. — Popham. Al- 
though a limitation of a remsander to a baftard in cjfe is good, 
for that he is aperfon known, and may in time be a pcrfon known 
and reputed for the fon of another, yet it cannot be 10 to a baftard 
before he be born ; for the law hath not any expeftancv that any 
fuch Ihould be, nor will give liberty or fcope to provide for fucli 
before they be. And he cannot take by fuch a name, unlefs he be 
fuch a perfon who is reputed a fon, and none can gain the name 
at the inftant time of his birth ; but it ought to be by continuance 
of time and reputation of the country, and not of the father him- 
fclf : and if he cannot take it at the time of his birth, he never af-^ 
terwards Ihall take ; for the law will not expeft longer for the in^ 
crealing of a reputation. The limitation alfo to one and the if^ 
fues othis body is always to be intended lawful iffue ; and the law 
will never regard any other iffue. So here, forafmucb as he hath 
not averred himfelf tb be a lawful iffue, but only a reputed, which 
cannot be, he hath not conveyed unto himfelf a fufficient title to 
have this writ of error. — Fenner inclined to that opinion, and 
faid, tliat they had conferred with divers of tlie Jufticcs in Serjeants- 
Inn^ in Fleet'Jlreet ; and that the greater opinion of them was, that a 
remainder to his firft reputed fon or baftard is not good ; becaufe- 
the law doth not favour fuch a generation, nor expcft that fuch 
Ihould be, nor will fufFer fuch a limitation, for the mconvenience 
which might arife thereupon. • Wherefore, becaufe the plaintiff 
was in truth a lawful fon, engendered between the faid John Blod-- 
well and the faid Margaret Lloyd after they were married together ; 
and this conveyance was only made in this manner to avoid 
fcruple, which otherwife pei*adventure might happen, becaufe the 
faid John Blodwtllvf^^ married to a farmer wife, and was divorced 
from her, if this divorce Ihould . be repealed, which cannot now 
be in qucftion, all the parties being dead ; the plaintiff difcontinued 
this writ of error, and brought a new writ ot error coram vobis re* 
Jida \ and therein averred tlic faid marriage, and that he was tliti 
firft ifTue during the efpoufals. Etfic pendet. 

Harding againft Sherman. 
A CTION of trover at Paxton^ in the county of Huntingdon. 
•^ The defendant pleads a bargain and fale at Roy/Ion, in the 
county of Hertford^ in the market there, whereby he after con^ 
verted them at Paxtcn^ in the county of Huntingdon. The plaintiff 
faith, that he waspofleffed of thofc goods ztPaxton^ in the county 
of Hwnfin^dony and that J. Sherman there ftole them from him, and 
, by covin betwixt him and the defendant at Paxton^ in the county 
pi Hurtifi^clon, he fold them to tlie defendant, as he hath pleaded. 
The ilTue whs upon the fale made by covin, &c, And it was 
tried in the coitnty of Hertford^ and found for the plaintiff. It 
was moved to be a mif-trial ; for it ought to have been by a jury 
of the county of Hertford^ or at leaftwife by a jury of both coun-. 
tics. — And of that opinion was Gaw1)Y. But the otlicr Juftices 

i contra \ 



Mtchaelmas Term, j8. and 39. Eiiz, In B. R. Sir 

)t$j§tra ; for the falc is confefled, and the ifluc is upon the covin, HA»»Ti*a 
which is well tried by a jury of the county of Hertford^ where it SmeemIk^ 
was alledged. — And it was afterwards adjudged accordingly (<?). ' « 

'a\ By2i, Tac. i. 0-13. nojadgment c. 8. if the caufe were tried by a proper 

ftafl be ftajfcd or revcrfcd after verdi^l, by j vy of the county or place where the ac- 

Ra£3atlie*>^isfuedouttomoreorf«(wer tiinisUid. See alf0 4. &5. Ann. c. i6. 

placcstbm ii ought, fo ^ £aiae ona piace and 3. Geo, a, c. 25. 
be right named ^ nor by. 16. & 17. Car. 2. 

Wright againjl Wright. Ca«i 36. 

PROHIBITION. And furmifeth, that The Bljhop offf^mton and a bi/hop may 
^ all his predeceflbrs, from time whereof, &c. held the manor of prcfcribe w nvn 
Edflmere for them, and their farmors and tenants for years, or at ^^'^^^^l^ 
will, free and difcharged from the payment of all tithes ; and that ^ght of his bU 
he, being leflec of the faid bifhop, offered this plea in the fpiritual flioprick, and 
court, and that they refufed it there. The defendant pleads, that h s tenant of th^ 
the fpiritual court received the plea, and admitted him to his proofs, ^^^!J^1 ^ 
and traverfeth the refufal of the plea there. And it was thereupon ^fobldUbhal^ 
(Jeraurred. — Walter, j^or the defendant^ moved, t!hat this iurmifc ed; and a fori' 
of thcrcfiifal of the plea is traverfable ; for a prohibition lies where mifeuponapro* 
they rcfufe to do right to the parties, or the fuit is where it ought ^ibition that 
not to be, and fo injullice is done to tlie party ; otherwifc the luit J^y^f^^^b ^J! 
in the fpiritual court, which is the proper j)lace to fuc for tithes, fpirftuai court 
ought not to be flayed ; and then the material caufe to award this ia traverfable. 
prohibition is the refufal of the plea ; for otherwife, without this Ante, 475. 
funnife, a prohibition lieth not ; as 7. Edw. 6. pL 79. and ^°^*' 559* T^S* 
8. Edvj. 4. fL 14. And a furmife which takes away the juriiUic- i.Rolt.Abr.653. 
don from another court is always traverfable ; as i%.Hin. 4. pL 13, *• ^^' ^^' 
13. Hen. 4. p/. 16. 34. Hen. 6. pL 15. are. And fo in this court Moor^^efeio, 
it hath been oftentimes ruled, that the refufal of a plea in the fpi- YeJv.'a. 
ritual court alledged was traverfable ; as in Eqfler Temiy 30. Etizn »• Bi.Com. 3?. 
betwixt £^/^« and Morris ; and Trinity^ 30. Eliz, betwixt Afcoll and '• Strange, 48a. 
Ifigeny where in a prohibition for a fuit for tithes, he furmifeth ^^ ^^^ 
tliat he pleaded in the fpiritual court, that the parfon had not read 5! Bac. Abr. 64. 
his articles, and therefore not parfon by the ftatute of 13. Eliz. ; 86. 9a. 98. 
and this plea being there refufed, the refufal was traverfed by di- Wood Inft. 173. 
rcaion of the Court. The prefcription alfo is not good here; 5'^«»''^»g'"^« 
for one cannot prefcribe de mn decimandoy nor to be difcharged " 
from tithes : and although the bilhop, being a fpiritual* perfon, 
might prcfcribe to be difcharged of tithes, yet his leflec ihall pay 
tithes, becaufe he is a lay perfon, and cannot participate of the 
privilege of his leflbr. — And therefore Tanfi eld, who argued on 
the fame fide, faid, that it was adjudged ^i.EfiZ. in the exchequer, 
that the queen's leflec fhall pay tithes, yet the queen never paid 
any ; for fhe is privileged by reafon of her prerogative (a). And 
the cafe in Djir 349, proves nothing againfl it ; for the flatute 
there was made for the lands of the abbots, and not for the lands 
of the bifhops. Wherefore, &c.— Coke. Concerning the cafes of 
the traverfc of the refufal of the plea, they are all to be anfwered ; 
with this difference, the refufal is traverfaole, unlcfs where a modus 
dtamoftdJ is tlie queflion ; for therein y&//j conjiat to the Court here, 
that the fpiritual court will not allow of any plea for a modus de^ 
c'tmamiL The refufal of the plea for not reading his articles is tra- 
vcriaWe I and the prefcription here is good ; for before the Coun- 
(a) Soe Hant 31 $• i. Jones 387. 

M m 4 cU 



Sii Michaelaias Term, 38. aad 391 Eliz, Iti B. R. 

"^**<?V' c51 of Lateran tithes were not payable here to cc^rtain perfons, nor 

wTrcf T. ^^ P^^^^ ' ^ appears ii.JJf.pLq. 44- E^"^- 3- />^- 5- '6. AT^w. 7. 

pi. li. which is tlic reaion alfo why the king fhall have the 

<*)Scci7.Gco. tithes of lands out of any parilh {a)i hicaufe the faid Council ex- 

*' * 3^' tended not unto them : and laymen at the common law w^re not 

capable of any titties, becaufe they could not fue for them in a 

court chriftian : but by way oi retainer he may well have them ^ 

as 8. Edw, 4. pi. 14. Regifier^ foL 38. U Nat, Br. 41. G- And 

tlicre it is held, that an amgnee may hold difchargcd of tithes, and 

43. Edw. 3. pL 34. £ff 7. Eduf. 6; the farmor of a parfon may fue 

in the fpiritual court for tithes ; and, as it is in Knightley^s Cafe^ 

the pope might have difcharged one from the payment of tithes ; 

fo there may be a prefcription that a bifhop and his farmor may 

hold without paying tithes. Wherefore, &c. — And being after-. 

wards moved again, all the Court refolved, that this allegation 

of the refufal of the plea is not tlie fubftance of the plea, but a 

furmife, which was never traverfable ; especially where a modus 

decimandi (hall come in queftion ; and that this prefcription for 

Toft. 57S. 7^4. the farmor is good, and as well as if it had been by the bilhop 

See the caik of himfelf ; for the Icflbr himfclf being of right difcharged, the far- 

5tcphcnfon v. mor alfo (hall be oilbharged againft the parfon ; but peradventure 

Hill, jj^t againft his k(ror. — Wherefore it Was adjudged accordingly, 

3.Burr.ia:3. ^^ Co%^^ 

Caii 37. Palmer againft Potter and others. 

Hilary Term, 38. £//r. Roll Sg^. 
An laion win A CTION upon the cafe againft the bailiffs of Northampton, For 
"Mh^^iT'^r ^^^^ ^P^" ^ fieri facias direftcd to the (herifFof die county of 

flTnchifcfor * Northampton, returnable O^ab, Mich, he fent his warrant to the 
TALs* am- defendants, being bailiffs of Northampton, to execute it ; who re- 
TVENmaifeAf- tumcd nulla bonu^ &c. before Miehachias ; and at Michaelmas they 
/fr# ihe wriAto ^erc amoved from their office, and odiers cbofeji. And for diis 
JJ^^^^Jlf^j^'^'/tf/^^ and all this matter found by 

mftsribcy arc verdift.— And it was clearly held by all the Court, that it was 
«muv<xl from a void return ; for the writ being returnable Oilab. Mich, the (he- 
tbcir offioe \ for rifF ought not before that time to have accepted any return of nulla 
11 u wirf, and ^^^^ . y^j, j^p might have had fome afterwards, and before the re- 
asNoRKTwiN. ^^^^ of the writ. And the v-rit being by diem returned af- 
^^^^'^^^^'9^* ter M^chailmas, they being difcharged of their office, it is void; 
jjR0n.AbJ.46o. ^*°^ ^^"^^y ^^'"'^ "^ authority to meddle with the return after ; but 
ferra. 813. ' if they have executed the writ before Michaelmas, then the (heriff 
5 Com.Dig.449- might have accepted of their return h^f or t Michaelmas, but not 

Cowp. 403. after. — Wherefore it was adjudged for the defendant (a). 
DougUs, 43. JO . \ / 

lis. ICC, ^"^ "^^^ .CoLTt held, that an aftion would Jktrlfffor frtuming the a'fwcr of a bi^'Uff 

^^* have lain aifiinft th* butttjf for negligence in niade after his removal from office.— S. C. 

pot executing (he >^'si)rant j or againlt /j&e Moor, 431, 

c*»' 58- The Lord Darcy's Cafe. 

If the king CSV^ WARRANTO againft Lord Darcy. For that he claimed 

grants a inMnor **^^ x ' ' ' 

wi'h fuch -^ij- XT^^ 



^to be difcharged from the queen*s purveyors in his manor of 

^ ^ 'j-Ktrby and ffalton, in the county of EJpx. He pleaded, 

ci'iVrLrtficdean ^^at king Edward the fqurtli granted to the dean and chapter of 
and chapici: of St. P^ur» formcily enjoyed ther^n, it is a good grant, hecaafe of the certainty to which 
it rtlaics.-— S. C. 2.R0II. Abr. 193. an. $.C.Woor,4i;. C0.Em.559. zo.Co.63. Doogl.i59» 
3. Turn Rtp. aS^. 



c 



MicHadmas Term, 38. and 39. Eliz. In B. R. S^S 

t^ii divers liberties within thofe manors ; whereof one was, to '^^ ^"»'> 
k difchargcd of purveyance, non obfiantt aliquojiatuto ; that after- ^Atcir *Cai«. 
wards, in 33. Hen. 8. thofe manors came to the king by furren- 
der i that Edtvard the (ixth granted thofe manors to Lord Darcj^ 
tAc defendant's father, with all thofe liberties, franchifes, and 
rivile^es, as the dean and chapter of Paurs^ or any other, had it 
y reaion of any charters or prefcription, non obfimUi aliquo ftatuto^ , 
\i'\ €t to ^varranto he claims tliofe liberties. The replication 
U'a$y that by the 27. Hen. 8. c. 24. {a) it is ordained, that all 
places (hall be fubjed to the king's purveyors. Wherefore, 
&c. — It was thereupon demiirred ; and argued by Atkinson, for 
tki defendant^ that inafmuch as the dean and chapter of PauF^ had 
thofe liberties and privileges, and thofe manors by the grant of king 
Edjjard the fixth were given to Lord Darcj^ with all fijch liberties 
and privileges as the dean and chapter of Paul's^ or, &c. ever load , 
with an exprcfs claufe of mn obftante aliquo flatuto ; the ilatute 
thereby is difpenfed with, which gives thole liberties to the king ; 
tad the patentee may well have thofe privileges. — BuiGawdy and 
PoPH AM held i cMtra ; for the clauie being general, of all liber- 
tics and privileges, &c. it is to be intended of fuch liberties 
and privileges which the dean and chapter had, and were not 
rcfumed by any llatutc. But this liberty to be difcharged of pur- 
veyance was rcfumed by the 27. Hen. 8. c. 24.. wherefore it Ihall 
not be revived by general words, but by a fpccial grant of thofe li- 
berties by their exprers name, with an exprefs non oh/iante of thzt 
ilatute i fo that it might appear tliat the king intended to grant 
them, notwithftanding this ftatute. And therefore it was agreed 
in the exchequer, in Lord Paret's Cde, about 20. Eli%. {a) for (a;*.RoU.Afcr. 
certain liberties claimed in tlie foreft of Cannock -woody that whereas i93* 
liberty of catalla felonum were granted by king Henry the fixth to !?^*^' 3^** 
7. 5. in that foreft, and afterwards, by a orivatc ftatutc 28. Hen.b. ^ V 

all liberties granted by him were refumed ; and afterwards this fo- 
rell came to the king by attainder ; and this foreft was granted 
over, with all the liberties which J. S. had therein, with a non oh- 
fiante aliquo ftatuto \ yet this liberty, which was reaflumed, was not 
revived nor pafTed, unlefs there had been an exprefs mention.— 
And they held, that this ftatute of 27. Hen. 8. c. 24. goes to the 
fucceflbr, although he be not named, &c. Sed adjournatur {b). J*^ ^^ ♦^^ 

nioa of the Court was io favou'' ot the qnodi^ 

Lynch againjl Spencer. ca« 39. 

Hilary Term^ 36. £Iiz. Roll 445. 
trJECTIONE FIRMiE of alcafc of ^/r G^^r«5)-^«;«. Upon a huibwd cn- 
-^ not guilty a fpecial verdift was found. Sir Richard Bridtres^^^*^^^%^ 
was fcifed of this land in fee, and thereof enfeoffed one fVinfcomb T^k^^^*^** 
and others, upon condition that they fhould regrant it to him and li^e rf»e StllL 
his feme in tail, remainder to the right heirs of 5/r R. Brown, who back 10 the huf. 
rcgranted it accordingly. Sir R. Brown and his feme had iffue ^*°<* «<* ^^fe 
ji. Brown their fon ; Sir R. Brown dies ; ^, Brown levies a fine *" '*''' ^*'** *• 
with proclamation to Sir G. Brown the leffor and his heirs, to the "! fj**^*^ ^*j} 
ufe of him and his heirs. The mother afterwards let it to the ^c.'^o.VjmT 
tlefendant for his life, and died. Sir G. Brown afterwards entered '^^^ wif« <*«- 

tbo' without wimntyb «r acceptt a fij«>. e^fi^t, and thereby grants and rcnderi it fof?o^' vMri 
rtca Jifc^unMa^^K\un the ftatute ; and the conwfu of the iffue in toil, with re.Tiaindtr in fee, may enter 
fc^ Che Arfeitun, alttio* by a fpecial verdia the iHue U only found to be tbtfim of the donor. 

upon 



5*4 Michaelmas Term, 38. ajod 39- EEz. In B. R. 

Lykch upon the defendant, pretending his entry to be congeable by tbc 
i^v'^zm. ^^' ^^^' 7- ^ ^^- ^'^ ^^ ^^ ^ ^^^^ plaintiff; «pon whom the de- 
1 Roit Abf.Szg. fe^^ant re-entered, and ouflcd hira. £tjiy fa^c. — ^Thii was argued 
« And. 44. ' l>y Glanvile and Diiewe /or thi flaintlff^ and by Savil and 
Mwr, 1$, 9 J. Kings miLl/^tt the defendant. — Firft, Whetlier this wete an eftate 
455- 7» 5 tail within the ftatute ? Becai/fe they are donees by feoffees ; as 

\oXTiL ^^^ ^^^ ^^^ ^^^ S'^^ varies from the condition: for the condition 
Dyer, "4L ^^» *^^ ^^ ^^ ^^^ ^ vsxsA^ by die advice of his counfcl ; and it 
Ante* 04, was Hot donc by the advice of his counfeL— Secondly, Whether a 
Fort. 324. Icafc for life only, and being withonfc warranty, be a difcontinu- 
^?' ^T I!^ *"^^ within the ftatute :— Thirdly, Whether Sir G. Brwvn be 
Ifcudi II7. '^ ^"^'^ * pcrfon as may take ndvantaj^c of this forfeiture by the words 
1. XtTt\. 489. or etjuitv of the ftatute ? or if it be grren only to the heir, who 
9»LcoD.i6i. hatli difabied himfelf to take advantage diereof by reafon of this 
Flow. 464. fine ? — ^And all the Justices rcfolvcd clearly for the plaintiff. — 
YdC^* • **^ As to THE FIRST, thcrc is no great doubt but that it is an eftate 
I. WooS'V Con. ^^ within the ftatute ; for that gift by the feoffees is gircn by tlic 
S6. provifion of her hull:>and ; and to make the gift in tail bv the ad- 

i. Bac. AK 93. vice of his counfel, is no material part of the condition ; (mt being 
3^Coaia>ig.7i, njade unto him without advice of his counfel, it is well enough- — 
Cri'nfc on Re- SECONDLY, A leafc for life widiout warranty is clearly a dilcon- 
co^. if+. i6u tinuance, within die intention of die ftatute; for althoi^h the 
ld©or,2 5o.7i6. ^ords are, that *' if the woman alien, difcontinue, releafe, or 
5. Co. 51. s9. " confinn with warranty, &c/' yet it is not diereby intended 
4. Leco: iCS. ihat a warranty is requifitc to all thofe afts ; but it fhall refer to 
CcSb'^iS ^^ releafe or conhrmation, which otherwife without a warranty arc 
Dycr/so. "^^ any bar or difcontinuance. And therefore it was ruled in the 
yeiv'.'ioi. court of wards, by the advice of Wray and Andersok, riiat 
Co. l;:. 365. where fttch a feme, tenant in tail, , accepted a fine, and thereby 
Cro. jHc. 475. graoted and rendered tlie land for 1000 years, there was not any 
Mv j6j" *' difcontinuance nor warranty : and yet it was ruled to be within 
the ftatute ; for otherwife the ftatute fhould be utterly defrauded. 
And it was fo ruled by die advice of all die other Jnftices of 
England : fo every aft which is a difcontinuance of itfelf, al- 
j.iU»n.Abr.?7g. though it be widiout warranty, is within this ftatute. — ^TmRi>Ly, 
^. Co. 5T. 61. They alfo all refolved (although it be a new cafe, and the more 
^•^^' ^>JV difficult), that Sir G. Broum is a perfon who well may enter for the 
rstrr^rii. ** forfeiture wiriiin diis ftatute ; for it is clear, diat by this fine fc- 
hoh. 3-7.' vied with proclamation bv J. Brtmtm^ being iffne in tail in the life 
Cro.jac,'i75. of his mother, the eftate tail is barred thereby ; and it is yiofiz, 
giving of the eftate tail to the conufee; and, at die leaftwile, tbc 
icmainder in fee pafled by tliat fine to Sir G. Browrty fo as he had 
the remainder at the time of this difcontinuance made, and the 
tort is donc unto him ; and then he is within the words and intent 
of the ftatute, to enter for the forfeiture : for the ftatute is, " That 
" all difconti nuances fhall be void, and that it (hall Be lawful for 
** him to whom die reverfion or remainder is to enter, &c." So 
the words of the ftatute are clear ; and it would be very liard to 
reftrain the intent thereof, that the entry fhould be given to the 
heir only. And although the proviso is, that it (haU not extend 
to alienations or difconti nuances made by aflent of the heir ; fo 
therein is intended, that the ftatute doth not give advantage to 
any but to the heir, to whom die audiority is givw to affcnt. 



Michaelmas Term, 38. and 39. Ellz. In B. R. 515 

would be unreafonable to tic the eeneral words by fuch a fpecial ^ykcii 
jiTjifo \ and this afletit may as well be given by him in rcverfion /^i^^^ft 
or remainder where tlierc is not an heir, as well as by tlxc heir. "^•*^*»' 
And clcazly, as this cafe is, yi. Brown, who is heir, cannot enter; ^ 

for he gave all his authority, title, and intereft by his fine to Sir 
G. Brown, whereby he is the perfon who ought to enter. 

Anderson faid, that after this fine levied, the feme, who was 
in, might well be faid quqfi tenant in tail after poflibility of iflue ; 
for no iflue of hcr's can inherit : and fo it is where baron and 
feme arc tenants in fpecial tail, and the baron levies a fine with 
proclamation and dies, having iflue, the feme enters, fhe is auq^ 
tenant in tail after poflibility, 6cc. ; for no iflue had by her can 
inherit the entail by reafon of that fine. And fo upon thefe rea- 
Ions they all refolved for the plaintiff". 

An objeftion was made, that A. B, was not found to be fon Adefeaoffind. 
and heir of Sir Richard Bridges, and then his fine conveys nothing ingafpcciaJ ver- 
to 5i> G. Brown. And although he be found to be fon to Sir ^'^^^^ ^' 
Richard Bridges and his wife, that may be true, if he be his fecond *"". ^^ 
fon ; and fo there is not a fufficient title found for the plaintiff. ^^'6*8*^ 
—But all THE Court refolved, that this being in a verdift is well ,.^'|^,n ^ep. 
enough ; for being found to be fon, and none other found to be 141. 
heir, he may well be intended to be fon and heir of Sir R. Bridges* 
Wherefore it was adjudged for the plaintiff, nde 3. Co. 50. 



m 



Mayn againft Beak*. * Cah 40. 

Tfrinity Term, 38. Ebx. Roll 1738. 

LBT upon a leafe for years, made 26th June, 26. Elh. bmben- A ktfe labm^ 
dum afejlo Annun. ultim, praterlt. for 35 years, rendering the *« ^^om the 
firft ten years 40 L annually upon the firft day of Oaober, and the ^fj^^ ^ 
iaft of Marcb^ 4equis porthnihui ; and after the ten years, 46I. 1 3s. 4A. JJ^yV ?„ ^rfp^ 
upon the fame days ; the firft payment to begin the firft of Offo^ ofihm, bc««. 
^fr next following: and ft>r 23I. 68.'8d. due upon the laft of fw/^^/ from that 
March, 36. EUx. the leflbr brought this aftioB ; and it was there- ^*y» *^^"S'» »' 
uf on demurred. — SAVEL,/flr the defendant moved, that he Ihould ^^^^^^]g 
have but 20I. at that day ; for the leflbr is to have 40I. for every un the day of 
year during the ten years ; and the ten years do not expire (being its date, 
accounted firom tlie making of the leafe) until the 26th of June, secEnnysv.Do. 
36. Eliz. for from that time only tlie leafe had his eiTence ; and nithonie, 
the Icffor is to have 40I. for ten years, which otherwife he had 2. Burr. 119^ 
not.— The Court refolved for the plaintiff^ For although the ^ ««9*- 
leafe in intereft begins not until the a6th of June, 26 Eliz. yet in 
the account of the number of years it began the Annunciation be- 
fore ; fo that the ten years expired at the Annunciation, 36. Eliz. 
and then the firft refervation ended ; and every day after 23I. 6s. 8d. 
is to be paid. And now although the leflbr cannot have ten years 
together 40I. but fliall fail in one of the payments, yet that is not 
material ; for it is inipoffible that he fliould have it ten years and 
^en times, «ts this relcrvation is,— Wherefore it was adjudged for 
the plaiatifl^. 



MichacU 



^'^ Michaelmas Term, 

38. and 39. Eliz. In the Common Pleas. 
Sir Edmimd Anderfon, Knt. Chief Jujlice. 
Thomas Walmfley, Efq. ^ 
Francis Bcaumond, Efq. \ Jujlices. 
Thomas Owen, Efq. J 

Sir Edward Coke, Knt. Attorney General. 
Sir T. Fleming, Knt. Solicitor Genet aL 



Cai>t. 1. 



Ban)dler againjl Tniffel. 



A pe»<bn at- T"^V EBT upoii an obligation. The defendant pleaded, tfiat he 
t»imsd of fdony | 1 was attainted of felony, which attainder continues yet in 
iannoi piwd J_^ \^ fo^cc, and demands judgment if he fhall be put to an- 



^ bar ro a pcf- ^^^** » *"^ '^ ^'*^ thereupon demurred. — Walmsley held, tliat 
Ibnal aflion j it was a good plea, and that he Ihall not be put to anfwer ; and 
torhcrsequaUy fo are all the authorities in the year-books, 2. Edw. 4. fi i. 
liable to anfwer ^^^^^ 4^^/ g^ 6. Edw. 4. t^L 4. 6. Hen, 4. pi. 6.— Stamford, lOj. 

wlliwilttainV ^^» ^^^^ ^^ ^^*^* "^^ ^ P"^ during that time to anfwer to another 
eri.— scd viik felony ; for he cannot forfeit more than he had forfeited before : 
ante, » 1 3, 2 14. 2a\d JBritton, 18. faith, that a felon attainted (hall not anfwer to 
9, And. 38, *^y ^hJ"g» unlefs to a greater felony. There is no authority in our 
latch. 145. books againft it : and thefe authorities are grounded upon good 
Joncj, 149. reafon ; for there is a rule, •• the law wll not make a man to labour 
Mofr, 178 75J' 44 inwtnC'* and it would be in vain for one to fue, and in the end 
f ."uJj'n. a*76. ^^^ ^^ cnJOT the effefts of his fuit, vr%. execution, which he can- 
btauod. 107.* not have of his lands, bccaufe they are now the lord's ; nor of his 
3. in(t.ti3. body or goods, for they belong to the queen : wherefore during 
»• Hawk. 533. ^hat time all obligations and contrafts betwixt him and others arc 
w Ra^ m ic a. ^'^^^^ » ^^^ ^^ "^^Y ^^ refemblcd to 2 man who enters into re- 
i.PecrAVin.695i ligjon. Or to a feme-covert, who cannot be fucd without her baron, 
i.BLRcp. 30! to whom (he hath given her body. — Anderson, Beaumond, 
1. wiif. aJ7. and OwEK, J contra. For in all the authorities which are vouched, 
V^^^A ^'' there is not any judgment or fettled opinions ; wherefore the law 
/^T^rn.'^Rrp. ^^ ^^ ^^ examined how it ftands : and in truth there are more and 
C.B. 12.9. ' greater reafons to maintain that he ftiould be put to anfwer than 
otherwifc ; for the other conftruftion would be very mifchievous. 
The principal reafon pretended againft it is, becaufe the queen 
hath an intereft in his body, and in all that he hath, and maycaufe 
him to be executed when fhe will. But that is not any caufe to 
flop the plaintiff in his proceedings ; for he may proceed and have 
judgment againft him, and if he Ihould be at large take his body 
in execution ; and yet the queen, when Ihe plealed, might con:i- 
mand evecution to be done on his body, notwithftanding the par- 
ty's execution. There is a rule, that " nonejhall take advantage de 
*\f9n tort demtjne :** and there is not any difference betwixt this cafe, 
aiid where one is outlawed in debt or trcfpafs; for then the quec'i 
may have his body in prifon, and his goods as forfeited, and he is 
liifablcd to fue any man : but yet it is not to be doubted but that 
he (halt anfwer ro the fuit of any otlicr. It was objefted, that his 
body is not his own during tlu3 attainder 5 but thjit is nptfo; 

for 



MicbaebnasTarm, 38. and 39. Eliz. InC. B. ' {17 

fcr he jxny parchafe any land : and if there be any perfonal wrong Bah yitx* 
done to hun, when he is pardoned he may have hi» action for it. -,^^*^ 
Tlw cafe of a feme-covert i$ not like hereto : for that is to avoid ^w"**- 
the intolerable mifchiefs which otherwife would happen to her 
huiband. It is not reafonable thata man doinga wrongfhovild take 
advantage thereof to himfelf, and take away aaother man's a£lion ; 
and therefore it is fitting he Ihould be put to anfwer ; for the queen 
and plaintiff' may be both fervcd : the queen by executing him when 
ftc pleafeth ; the plaintiff in thcifUerim to have him in execution . And 
therefore Owen faid, it was adjudged in the exchequer, in one Crofts* 
Cafiy where one had a judgment againft another m debt, who was 
afterwards attainted of felony and imprifoncd at Newgate. During 
that time, the plaintiff purlued a capias ad fatisfactendum^ and deli- 
vered it to the Ineriff of Lvndon* The felon was afterwards pardoned^ 
and let large ; and the party thereupon brought debt upon the 
efcape : and adjudged maintainable ; which proves, that he might 
be taken in execution during the attainder (Sed quanrcy If it was not 
adjudged, becaufe he being in their cuftody after the pardon, fhould 
then be faid to be in execution for the party ?) — Wherefore upon 
thcfe reafons, againft the opinion of Walmsley, it was adjudged^ 
that he Ihould anfwer. Vid^ Ce. Entriesy 248. 

Mailings againft Connard. Omt 1. 

Tnniij Terniy 38. Eliz.. Roll 1734- 

F\EBT upon an obligation conditioned for the performance of ona cfyreiwat 
^ covenants within a certain indenture. The breach was affign- to aflure laod 
cd : Whereas the covenantor covenanted with the covenantee, diat *^ ^^ o^vtyi 
he, at the cofts of the covenantee, would affure fuch lands unto ^^^^fj^e'c^^ 
him before fuch a day ; that the day was pafied, and no affurance v^amorru^ 
tendered by the covenantor, nor cofts by the covenantee : and, to notify what 
Whether tnc covenant were broken, or not? was tho qucftion. — affurance he wfll 
It wag argued by Williams, /^r the defendant^ that the plaintiff ^^^ ^*^°'l!^ 
ought to tender the cofts firft, otherwife tlic other is not bound to t^dlr^ihT 
make the affurance: and he cited 3. Hen. f.pL ^ and Dyer^ 371. charwj. 
and a precedent in the Book of Entries, wJicre iffue was taken upon Ante, 9. 
the tender of the cofts. — Warberton, t contra. I'he covenant- s.c. Oweo,i57. 
or is to make the affurance, and tliit may be what he pleafeth, vi%, Moor, 454. 
fine, feoffment, recovery, and therefore he ought to notify his |] £^***-^* 
readinefs to do it, and what he will do, fo as the other might Know i' wood's Con. 
nrhat cofts he is to tender ; but if he had covenanted to make fome 306. 440, 441.' 
certain affurance, as fine, feoffment, recovery, &c. it fliouid have Cowp. 56. 125. 
been otherwife. And fo it was adjudged in this court, in Frank ^^^^ 684.690. 
V. Forfterfa) ; which Gl an vile affirmed, he being of counfcl b.r!*^^. 
therein. — And of that opinion was the whole Court here, g/TerniRep.ta 
that the covenantor ought to give notice what affurance he will c.b. 36.a;4. 
make, and to ihew hi$ readinefs to do it, otherwife tlic obligation 
is forfeited. But Walmsley faid, there was no difference, whe- 
ther the manner of the aflurance is left to the covenantor, and 
where he covenants to make one kind of affurance: for in both 
caies he is to do the firft a£l, and to tender the affurance. Where- 
fore it was adjudged for the plaintiff. — But the entry of the judg* 
menr was ftayed upon the defendant's prayer, and the matter re* 
iorved to order. 

(4} Tdnity^ |4« SlU* u And. joo* 

Woodroff 



51 8 Michaelmas Term, 38. & 39. Eliz. In C- B. 

c^»* 3- WoodrofF againji Greenwood. 

Hilary Term, ^^. Eliz. Roll ^i 2. 

In a coventftt /^OVEN ANT. Upon demurrer the 6afe was. Tenant in tail, 
that the leObs V-« reverfion to the queen in fee, lets it for twenty-one years by 
o^y*'&o!^with ii^^cn^re ; and covenants that the leflee (hall enjoy it againft all 
an exception of pcrfons, without the interruption df any except the queen, her 
the king, his heirs or fucceflbrs, exiftentibus regibus vel reginis Anglic. The 
heirs and fuccef- queen grants her reverfion to fVcntworth: the tenant in tail dies 
ro'^iwi b*^he ^'^'^^^^ ^^^^ • f^^rit-Morth enters and oufts theleffce, and he brings 
Wng's patentee Covenant.— And adjudged that it lay : for none are excepted befides 
is a breach ef the queen and her fuccelTors, and not her patentee, 
the covenant, z. Wood's Con. 395. 4x1, Dougl. 43. 45. i. Term Kep. 671. 

Case 4. Fitton, and the Countefs of Northumberland his Wife, Sir 

Xhomas Cecil and his Wife, Sir William Cornwallis and 

his Wife, and the Lady Davers, Daughters and Heirs of 

the Lord Latimer, Plaintiffs, againji Hall and others. 

In f«ar# rw/»erfii r^UARE IMPEDIT. The defendant pleads a releafc of all 

P'efcntmcnt by ^^^^aftions made by Cornwallis^ hanging the writ : and it was 

the grantee of awarded that it was in bar to himfelf only ; and that f6r the others 

l^fffnffirf^nf the writ fliould ftand.— Glanvile then moved, tliat tlie declara- 
ance is lumcient . 1/-1 irtr- /-•/•*• 

tofupport the tion was notgood ; for they count that Lord Latimer was leifed in 

title of the heirs fee of the advowfon, and granted the next avoidance to Dean Cartw^ 
of the grantor, ^^q prefented ; and afterwards the Lttrd Latimer died^ and it de- 
z. Ro. Ab. 377. fcended to them ; and therefore ill ; bccaufe there is npt alledged - 
5. Co. 97. j^j^y prefentment in their father, nor in any who had the inherit- 
Moor,* 4^56. ance, but only in the grantee of the next avoidance, which is not 
a. And. 49. any title: for in a quare impedit the prefentment ought always to be 
2* BuUt 89, alledged in him who hath die abfolute inheritance, and not in any 
other; and in proof thereof were cited 18. Edw. 3. pL 15. 24. 
Edw. 3. pL 37. 40. Edw. 3. pL 10. 4^. Edw. 3. pL 4. 33. Hen. 
6. pL ^2. J . Edw. ^. pL 20. 9. iXf«. 7. ^/. 23. 16. -Htti. 7.)^/. 7. 
in which books it is held, that a prefentment 6y a tenant for life, or 
for years, or by a guardian, or oy the grantee of the next avoid- 
ance, is no tide for him in reverfion. And diat this very cafe was 
here in queftion, Trinity Term^ 26. Eliz. Roll 1108. in a quare impe- 
dit by the Dean of Litchfield; and a demurrer thereupon for tliis 
very caufe.— The opinion of the Court was, that for this caiife 
it was ill. But no judgment was given, becaufe the plaintiff dif- 
continucd his fuit. Wherefore, &c. — But all the Justices, ex- 
cepting Owen, held, diat the declaration was^good enough : for 
this prefentment by the grantee is in right of die grantor, and 
gives unto him fufiicient fcifin : for the books are not dircftly, 
that a prefentment alledged in the grantee is not good, but that 
where a prefentment is alledged in the grantor and grantee, tliat 
the prefentment in the grantor is only traverfable; for that is the 

Srincipal ; and the alledging of the prefentment in bodi is not 
ouble* And here die title is not only alledged by tl>e prefent- 
ment, but alfo by the defcent principally. Wherefore, the demur- 
rer being joined thereupon, they awarded, tiiat if other matter 
T^ere not fhewn the nrft day of the next term, that judgmentfliould 
l>e entered for th^ plaintiff. — ^And it was afterwards adjudged ac- 

•ordii^ly. ' ^^ 

The 



Q 



iiichtdmas Term, 38. and 39. Eliz. Id C^B. 5^9 

The Queen againft HufTey. €j»^«« s- 

UARE IMPEDIT- Upon demurrer the cafe was, King Whence kw^ 
Hairy the eighth gave a manor, with tiie advowfoii appuVtc- haAafec-fiio|ite 



Bant, to Charles Brmu^n, duke ofSuJiHy and his heirs iniles of ^***^*f^,a 
bis body. Charles BrandoHy by deed enrolled anno 2p. Hen. 8- re- Wsgrant oJr « 
granted that manor and advowfon to the (aid king, and to his good without 
heirs and fncoeflbrs. Afterward the 34. H^n. 8. c 20. was made : recif.nj:dieii»- 
2fH] afidcr the faid king granted that advowfon to Tanner in fee ; ^^ ^ **** 
from whom, by mean conveyances, it came to the defendant- ^^ hebcp« 
Cbttrks Braxdon died withottt ifiue male ; and, the church being oat of theinte* 
now void, the queen prefentcd, and the defendant difturbed her ; ritanceof «■ 
and file brings a quar^ impedit. The defendant Ihews all this mat- ^<«^« ^ 
tcr; And that afterwards there were three prefcntments by the pa- "T*"^"^ 
lentees uader whom the defendant claimed- And upon all this 2.Aiid,4«, 
matter it was demurred in law.— ^It was argued by Warberton ^^♦^'* 
ffsr the mnun^ and by Hearn for tht defendant. — Firu, Whether this i. c4?^'b.* 
grant i>y tenant in tail, it being good to bind his ifTue, as it is Hob. 3^3* 
agreed by all that it was, by the exprcfe words of the 34. Hen. 8. H^itt, 96. 
c. 20. the king ther^y hath a bafe fee in him, and his revcrfion ex- ^^' ^- *^ 
pedant tlicrcon ; or w.^^dier he fhall be in as in point of reverter ? — y^^J] '^ 
Secondly, Admittingthat he is feifed of a bafe fee, Whether this * 
grant to Tlzxwr, not rccitine; his eilate, Ix; good ? and. Whether it 
ihali endure as long as the bafe fee continues only, or be fuf&cieitt 
alfo to pa6 theefiaCe in reVeriioninfee? — ^Thirdly, Admitting that 
this patent is not good, Whetlier this double ufuqiation fhall bind 
the queen in this aflion, anH be a good title for tlie defendant ? — 
As to the firft, all the Justices refolved, that king Htnrj the Co. Lit. iS.a. 
eighth was not feifed of any bafe fee, bu^> of an abfolute eflate «*»'''. 
given -unto him ; and he was m as in point of reverter : and there !; ?°* ^^'^^ 
is not any difference betwixt this cafe, and where tenant in tail, Piow.\fal^ 
the revcrlion to the king, is attainted of trcafon ; fo he hath the fee yelvj 150. 
conjoyned in him. And the 34. Hen. 8. c. 20. makes it clear tliat 3.Bac.Ab. ^is. 
he hadi, by th^ deed inrolled, an abfolute fee in him. — As to the ,^ co-4Q.bu 
iecond, admitting that he hath two fees in him ; yet the patent is 51. b. 
good for the bale fee, and for the reverlion in fee, without reciting x. Roll. Abu 15^ 
the king's eilate : and the eftate of the patentee (hall go out of g°" ^°" ^^' 
both eftates. — As to the third, Anderson and Beaumond held ," veliu^Ios! 
dearly, that two or three ufurpations Ihall not put the queen out ' 
of poneffion, pot gain any title againft her: for when the queen e. Co*. 30. a. 49. 
batii any thing permanent, no fubjeft can take it from her by any Cro. Jac. lij. 
tort- And they laid, it had been foadjudgcd in this court, although »• Browni. i6fib 
the qiseen had the advowfon in righfof the dutchy. But Walm- J: ^^' ^^• 
SLEY doubted of the point of ufurpation, being after two prcfent- ^ h^J^- 
meats (^j, becaufe the prefentee comes not in only by aa of the utt. 1%. 1 nj.c 
patron, but by the ordinary, who admits him. But for the other {4). 
points they ail refolved. — ^And it was adjudged for the defendant. 

(«) Bjr 7. Ann. c. i S. no ufurpation, ^bc intitled to an advowibn, or tlun it to'^a 
luli ^il^Uo^ Che eftitce or inured of any risht, 

Bcfwick 



S^o Michaelmas Term^ 38. and 39. £li2. In C B* 

CAii 6. Befwick agatnft Cundpn« 

Anaaioo on A CTION on the cafe. And counts, that he wasySi/J*/ ^^Jf^ ^^ 
ihccafcwUiuot "^^ lands adjoining to a brook, whereof the defendant was fcifcd : 
lieforanufance and that tlie defendant cujlodivlt ki manutenuit quandam moUm in 
^ff^^^^h**^*^ the brook, by reafon whereof the brook furrounded his laud, &c. 
^Mo^r Whereupon the defendant demurred ; and it was argued by Gl a is- - 
^ ^rmiitat; viLE/^r the platntiK and by Lewkner/^ the defendant. — And all 
and it is no nu- THE JUSTICES relolved for the defendant. — Firft, That this aftion 
lance to main, upon the cafe lics not ; becaufe, if it were a nufance, the plaintifF 
^w** fouV* might have his remedy by any ajfife or ouod permittat. And a maa 
scd^vidtTante^ fhall never have an aftion on the cale, where he may have any 
199.401.466, other remedy by any writ founded in the Regifter {a) ; for this is 
«45' only given wheretherc wants fuch a remedy. — Secondly, There is 

a I. Hen. 7, JO. not here any offence committed by the defendant : for he allcdgeth 
Moor, 449. that he kept and maintained a bank ; which is, that he kept it as 
^hbon^' '^ ^^^ found it ; and that is not any offence done by him, for he did 
2'. Leon *84l ^^^ ^^ ^^Y ^^ing ; and if it were a nufance before his time it is 
Noy,6S. not any offence in him to keep it: but the plaintiff is to have his 

Ld. Raym. 277. remedy to abate it by a quod permittat : and therefore the cafe here 
39»' differs firom 4. AJf, pL 7, for there the ufing was a new nufance, 

HalconF.N.B. ^^^ ^^ ^^^ ^^ ^^^^- — ^^erefore it was adjudged for tlie defendant. 

4^7* (a) Both thefeaflions of ajife of nyfarnt che nufance, but only recover damajrss* re- 

and ^od permittat are now out of ufe, and courfe muft be had, if the defendant be ob- 

have given way to the adion on the cafe; ftinate, to the old remedies. 3. BL Coon. 

but at ^ party cannot, oy this a£tion, abate 122. 

c^„ y^ Whyddon's Cafe. 

The deiivcfy of A NNUITY. The defendant faith, that he delivered the deed of 
ci»«^ cannot be xV annuity to the plaintiff as an efcrow, to be his deed upon a 
averred to have certain condition to be performed, otherwife not : and that the 
dJc^pany him- Condition was not yet performed. The plaintiff demurred ; and, 
fcifa$tf*«/fraw. without argument, adjudged for the plaintiff : for the delivery of 
Vide poft. S3S. a deed cannot be averred to be to tlie party himfelf as an efcrow* 
**^ Vide 19. Hen. 8. pL 8. 29. Hen. 8. and Morice's Cafe^ Dyer\ 34. b. 

Co. Lit. 36. 1. ^-^ a ;;, ffiarjrin. 
$hep.Touch.56. ^^ ^ 

^' CAtfi. Damport j^tf/^ Sympfon. 

Anaaiononthc A CTION on the cafe. And counts, that he was poffeflcd of a 
cafe wliinot lis -^^ fountain of filver to the value of 500I. and delivered it to y, 
againft a man j)^ ^^ tranfport beyond fea, and there to fell it, and to render an 
^Ato^f^tlov" account thereof to the plaintiff, which the faid y. D. brake, and 
whcrtby the*^^ Converted to his own ule. "Whereupon the plamtiff brought his 
plaintiff recqver- adion on the cafc againfthim, wherein thev were atiflue. And the 
cd left damages dtfbndant being produced as a witnefs on tne part of f. D. fallly 
than he would f^oj^g ^hat the laid fountain was not worth above the value of 1 801. 
dorT^ "^* whereas, in truth, it was worth 500I. by reafon of which fklfc 
Cro Tac 460 ^^^ ^^ J^^^ S^^^ ^^ ^^ ^^^ plaintiff but acxjl. damages, 
Owen, 1*58. whereas they would otherwifehavegi ven more damages ; whereupon 
a. And. 47. . he brought this aftion. The defendant pleads notguilty, and found 
a. Roll. Rep. tgainft him, and damages affeffed to 300L And it was moved in 
>95. i9«. ** arreft 



Michaelmas Term, 38. aAd 39. Eliz. In C. B. 5ai 

trrcft of judgment, that the action lay not ; for the law intends ^^JJTJ]!' 
the oath of cvcty man to be true ; and therefore until the ftatute sy^^^^ 
of ^. Hm. 7* c. I. which gives power to examine and punifh 

Sirjurks in the ftar-chambcr, there wa$ not any punimment cro. Jm. tou- / 
r anj &lfe oath of any witnefs at the common Uw : and now 
there is a form of ponifhment for perjury provided by the ftatute 
of 5* ££z» c. 9. ; and if this a£lion fhould be allowed, the de« 
Ibndant might be twice puniihed, viz. by the ftatute, ahd by this 
action, which is not reafonable* — And of that opinion were 
Walmsley, Beaumono, and Owen, that this a£tion lies not ; 
for at the copunon law there was not any courfe in law to punifh 
perjury: but yet before the ftatute of 3. Hen. 7. c. i. the king's ^ left, ^i^ 
council ufed to ailemble, and punilhed fuch perjuries at their dif- 
cretion. And if he fhould be punifhed in law by this aft ion, there 
would be fome precedent of it before this time : but being there 
is not any precedent found thereof, it is a good argument 3iat the CoXit.$ea.iiA 
nSdon is not mainuinable. And it appears, by Dyer^ 242. that at 
the common law there wis no puniftiment for perjury but in cafe 
of attaint; but in the Ipiritual court ^r^ lajione fidei in cafes fpi-r 
ritoal they ufcd to punifti them : and here they would in this ac- 
tion draw in queftion the intent of the jurors what greater damages 
they would have given, unlets for diis oath, v^hich is fecret, and 
cannot be tried ; and therefore to punilh a man for his oath upon 
a fecret intent would be hard ; aiid if this might be fuifered, every 
witnefs would be drawn in queftion.— Wherefore upon thefe r6i- 
fons they held, that this adion lay not, and gave judgment for the 
defendant, againft the opinion of Anderson^ who conceived the 
aAioa was maintainable. 

Ive againjl Sams. Caw ^ 

Triniiy Term, 38. Eli%. Rett 1865. 

TTTASTE. And counts of a demife for thirty years made to the IfanmoktiMs 

^" defendant of the manor of Tottenham^ in Effi:c. The de- TnMnor**tmifii§ 

fendant pleads ami Jimijit modo et forma ; and thereupon a fpecial ver- ^j'J^ ^^^ ^ 

diSt was found, that /. 5. let the manor to the defendant for thirty ,nd jj be afierl 

years, ** excepus emnibus hio/cis, et fubbofcls i" and afterwards made wards grants a 

another leafe to the fame leflfee for fixty years of " all woods and ietfi8totheta«#. 

underwoods growing, and being upon the manor witliout im- |^^^ *^ . 

peachment ofwafte ;" and after that made a third leafe to the fame „p^„ thcmil? 

kflcc for thirty years of the manoV^ to commence after the end of nor, and then 

the firft term. The firft-tcrm expires, the Icflee afterwards cuts grsots a term 

down trees, and Ive having the reverfion brings waftc. Etjif (^c. ^ff^ "^J^ 

the laois icnefl^ 

Hearn, for the plaintiff. The queftion is only. Whether by to commence 
this exception, or die fecond leafe, the wood be fo fevered from after the end of 
the manor, that it doth not pafs by the third leafe of the manor ; ^^ ^!2i^2L 
and whether this third leale is not an implicit furrender and ^ ihu^lUd* 
drowning of the fecond leafe ? And he held clearly, that the woods leafe is an im- 
and underwoods, notwithftanding this exception and the fecbnd pUedfarrender 
leafe, remained parcel of the reverfion of the manor, and pailed by ^Jf* '^S^ 
the third leafe of the manor.— And fo is theppinion of Portm an J^,^ 2J 
in Pbwden, 104. and Dyer, 223. fc^ed from 

the manor. 
Aele^tfi4« ^0^.605. 5.C0. xi.a. Co. Lit. 47. 143. a. RoU. Abr. 455. Dyer, 19^ Cm.JflC*.4||^ 
fio^ 170. 3. Co. Dif. 441. I. Term Rep. 443. 2* Term Rep. 4&5, 

CKO. ELIZ. PART II, N n GlAK- 



$iia Michaelmas Term, 38* arid 39. Eliz. In C. Bi* 

^^* GLANvtLLE e contra. Firft, By the exception the foil is ex- 

^i^f'ifi . cepted, 9S 14. Hen. 8. pL i. is, and during that time it remains 

^'**' excepted and divided from the manor to ail purpofes. But if one 
Co. Lit. 4. xiS. jgj ^jj ji^j-g parcel of a manor for years, the rc\xrfion there is par- 
l^oiLAhr.4 6. ^^* ^^ ^® manor, and ftiall pafs by a grant of the manor ; but a 
Dyer, X4C.' ' * kafe of the manor excepting an acre, tlie acre excepted is not^any 
Piowd. 1 06. part of the manor to any purpofe, and fhall not pafs by a leafe of 
5. Co. 1 1 . b. the manor : and this difference appears by Bromley, in Plow. 104. 
i'^J' ^1^- . and 38* Hen. 6. pi.- 38; l^hen the foil of the wood being fevered 

xrco^'sti?^ ^^^ ^^ ^^™*' ^^ ^^" ^^^ P*^^ ^^ ^^ *^^^ '^^^® ^^ *^ manor : 
Cro. Car. 502,' and tlie fecond leafe doth not conjoin them to the manor ; for 
Leon. 303. thereby the foil is not let, but only the wood growing, &c. which 
Chren,49.97. extends only to a* leafe of the trees, fo it remains always fevered. 

Wherefore this iflfue is found for the defendant, that he did not 

let, &c. 

Walmsley. It is agreed in Culpepper s Cafe^ Dyer^ 184. that 
if 1 fell trees growing within my land, they are now become chat- 
tels ; but if I buy them again, they are now rejoined to the inhe- 
ritance : and here by this ^ceptipn of the wood the foil is ex- 
cepted, and fevered from the manor in pofleilion, but it is parcel 
of^ the reveriion of the manor ; and there is not any difference 
where parcel is let and where parcel is excepted, fo it palled by the 
' taking of the tliird leafe, which was clearly a furrendcr, or extin- 
foph 30. guifhment of the fecond leafe prefently, although this third leafe 

2. Vent. 316. IS to commence at a day future, as it hath been agreed in thii 

3. Leun. 244. court ; bccaufe br his acceptance he allows the leffi)r able to let 

the land during tne other leafc. 

J, Bac. Abr, ANDERSON. There is no doubt but tliat the foil of the wood 
4?«.462. is excepted, and yet it remains parcel of the rcyerfion of the manor, 
5j^^-^*«j^5«3' and Ihall pafs by a grant or leafe of the manor, and Ihall be rcco- 
. Piston R«cov! ^^^^ ^y ^ recovery of the manor : and there is not any difference 
^8. ' to this purpofe betwixt a leafe of parcel and an exception of paral 

of tl}e manor. And 1 agree, that if trees be fevered from tlie ma- 
nor by grant, yet, if they afterwards return to him who had tlic 
manor, they are rejoined, and are not chattels in him ; and that his 
acceptance of the third leafc was prefently a furrender or cxtin- 
guilhment of the fecond leafc ; for he could not have the land and 
trees in him in feveral degrees, but the trees fhall be rejoined to the 
land by the laft leafe : and if Jeflce for twenty years takes a leafc 
for ten years, to begin at Afichaelmas^ there is no doubt but tliat 
tlie term for twenty years is furrendcred or determined pifefently ; 
for by the lefice's acceptance the Icflbr hath power to make a new 
leafe during the former, and at the time of the leafe making. 
Wherefore, &c. 

Beaumond agreed with him in omnibus, — Wherefore {abfente 

Owen) judgment was given for the plaintiff. — Note. Walm- 

^ - 8 ley faid, if one bargains and fells his trees to one, and after let 

** ' the land to him for years, the trees are now rejoined to the land ; 

fo that if the leflec cuts them down, he fhall be punifhed in wade. 

Ssd (fuare de ceo^ 5. Co* W. 

Brown 



Michaelmas Term, 38. and 39- Eliz. InC B. ' S^ 

Brown againft Terry. . Ch%%s9* 

Hilary Term^ ^7, EliTi, Roll 620. 

THE cafe upon demurrer was, It was found by office that 7. S. '^^ ^^'* "• 
who held of the king, died without heir. /F. 5. as heir to 7.5. ]J*^SirS 
traverfcth this office, and was at iffbc with the queen, thaty* 5.* livery • bdfore ' 
ii:d not die without heir. Hanging this iffue, he made a feoffment iivwyfucd, or • 
of the land, with letter of attorney to make livery. The iffue waa. *" amevg^imm^ 
tried, and judgment was given againft the queen ; and after that ^^f^ * > 
jndgmcnt, and before the writ of amoveas manum executed, the at- ' - 
torney made livery according to the deed ; and. Whether this were ** ^' ^^' ^^ 
a good feoffment or not ? was the queftion. — Firft, becaufe the ** 5 • *' . - 
fceir, at the time of the making of the deed of feoffment, had no- 
tiling, &c. — Secondly, Becaufe at the time of the livery executed, 
tijc queen's hands were not amoved; and fo tlie livery was during 
the queen's pofleffion. 

Dakiei^j ferjeant: By the judgment the queen's poUefllon is 
otterly defeated, and is in the heir before any amoveas manum 
awarded ; for that is only to this purpofe, to compel the efcheator Aate,'4$3# - 
Co avoid the pofleffion, if he will hold it againft the judgment ; ' ' * 

and fo is tlie opinion of Stamfordy 78. i<jikAJJ\ 2. lO. Edwi.^, 
Ajf, 156. The difference is where the queen leifeth by title ; for 
then i^r title being determined, there ought notwithftanding to 
be livery made to him who hath the right : but when Ihe feifeth 
without caufc, and he who hatli right hath judgment for him, he 
Kay enter without livery ; as 5. Edw, 3. •* ^are Impedit^^^ 34. 
The deed of feoffment before the judgment is good ; for the party 
had always the right of inheritance and the freehold of the land. 
Wherefore, &c. 

Andbrson. There ought not to be a traverfe where the queen 
by office is entitled to the fee in the land, unlefs it be in cafe 
where an office is found after an attainder of felony or treafon ; 
in which cafe it is given by the 2. Ediu. 6, c. 8. — Owen faid> that 
this traverfe is given bv the 34. Edzv. 3. c. 14. Plde Stamf, 61. 
36. Edu;, 3. c. 13. 8. Ifcn, 5. //. 19. Rid, 2. title ** Traverfe^'' 37. 
and 47 . 

Akx>erson. If the judgment be good, yet the queen is not 
out of pofleffion until the writ of amoveas m^vm executed, and 
then the livery is void, and the deed is not good ; for at the time 
of the feoffment h« had not any authority to make livery: but it is 
good to be adyifed therein. 

But Beaumond e contra^ that the pofleffion is out of the queen 
by the judgment, for the reafons before fhewn ; and the livery is 
well made by the attorney, the queen being out of pofleffion. 

Owen. The deed, being void at the firft, cannot be made good 
by a fubfequent aft ; as, if I make a deed of feoffment of land 
which I have not, and fuch a letter of attorney, and afterwards I 
purchafc the land, yet this deed is void : fo here. Wherefore, &c. 
—W ALMS LEY abjente adjournatur. 

Bnt afterwards, the fame term, it was adjudged, that the livery 9. Co. 89. ti 
was good ; for by tlie judgment the queen's hands were immediately 
xzioved, and he had authority to execute livery upon the land. 

N n 2 Laughter 



5^4 Miduclmas Term, 38. & 39. Eliz. In C. B. 

^^" 5'- Laughter agalnft Humphrey, 

^fmcnants in n EPLEVIN. Thc cafc was. That a man and woman being 
%A\^yTSLc jointcnants in fee of a manor intermarried, and after levied a 
to^. who rat. fi"^ thereof to a ftranger, who rendered it to them' in tail. Thcjr 
«|ert it back in have ifliie three daughters. The baron dies ; the feme takes a 
oil. The wife's fecond baron, and they levy a fine, and retake it in fpecial tail. 
"dL^^itoO^' The feme dies without iffue by thc fecond baron. The daughters 
of I uHui, 7. ^^^^* A Icflce for years of the fecond baron diftrains a copyholder 
c. so! * for his rent : he brings a replevin ; the other avows, and did not 
Ante, 14. 514. aver the life of the fecond baron ; and for that caufe it was held to 
Miior, 93. 450. be ill. It was here moved,— Firft, Whether thc firft eftate tail be 
^'rc within the 11. Hen, 7. c. 20. And held clearly that for the one 

Cr^c ©rkc^" wi^i^^y ^^ ^*^ J ^^^ ^or the other not. — Secondly, Whether thc 
cov. 154. " eftate in fee be within the 11. Hen. 7. c. ao. ? And it was held by 
Com. Rep. 363 all the Jttfticcs that it was not, for it may eo to a collateral heir; 
3. Com.Dig.71. and this ftatute doth not provide but for the heir in Jtail only, 
a. Bac Abr. 93. Thirdly, It was moved, that an avowry cannot be made for rent of 
The lord of t ^ copyholdcr in this court, no more than an ejeeiiom firmeey which 
manor, may jg j^^^ fo^ ^j^^ j^fl-^^ of a copyholdcr* But all THE Court i cwira : 
UWogom oft' ^^^ ^txt, is a great difFcrence between thc cafes ; for the ejeaione 
copyhoM; firmee is brought for the copyhold itfelf ; but this avowry is for 
Ante, 5S3. rent due to the lord, which is a duty at the common law ; and 
«x:oro.Dig.53o. therefore an avowry may ^1 be for it ; as 8. Rich. a. ** Jvow- 

'•^-Abr.490. i4 ry^' 86. is. Wherefore. &c. 
Salk. 186. 
Gilb. Ten. 308. 

caii 51. Bonner againft Walker. 

Variance. A VOWRY. The iffuc was, Whether the place, where, &c. 
Cowp. 766. '^ was the freehold of the avower or not ? and it was found by 
Dougi. 183. thevcrdift, that it was the freehold of tlieavbwant's wife. — Et per 
I. Term Rep. CuRi AM, it is found againft the avowant : for when he faith hii 
*^^' freehold, it is to be intended his folc freehold, and in his own 

right. Wherefore, &c. 

See II. Ceo. 2. c. 12. f. 19. 

^'^^ sv Mallet againft Mallet. 

How a manor HpRESPASS for lands in North'Paytony in S^mer/et/Krej^lt wai 
may be convey. 1 h^y pg^^ CuRiAM that a manor in reputation, whkh is not 
J^^ a manor in truth, will not pafs by thc name of a manor in a fine 

' ^ or common recovery, for they (hall not be taken by intendment : 

«. Co. 64. b. {jyj othcrwifc it is in a conveyance ; for there the intent of the par- 
.. Ut!V tics wiU help it. 
X. Bac. Abr. $441 S45- Cowp. ^49. 

Townftiend againft Wale. 

^" Trinity er Hilary Term, 35. EJiz. Rolilt^. 

A man fetfcd of T JPON a fpccial verdiA the cafc was, A man fcifed of lands m 
landi in poflcf- w pofleffion, and of other lands in revcrfion, upon an eftate 
2^ d^ifeto ^^^ ^^^^' devifctli by bis will in writing, that his executors fliould 
three exflcwors 

for 10 years, and after to be ToM. One of them diet. The reverfion fails in. A fide of both eibtes by 
the two furviving executors is good.-^Ante, 26. Owen, 255. t. And., 59, Mopr, 341. 508. Pfi^ 
•A Dtv. 152, 297. Cowp. 464. 

have 



NCchaclmas Term, 38. & 39. Eliz. In C. B. 525 

have all his lands free and cuftomary in D. for ten years to Towksben© 
perform his will and the will of his father, with the profits thereof; ^*^^ 
and that after the ten years his executors, or any of tlicm, Ihould 
fell it for the payment of his debts. He makes three executors, 
and dies : the one dies ; the ten years expire ; the tenant for life 
dies ; the two furviving executors feU the land, &c. — Spur ling. 
This fate is not good. Firft, the reveriion of the eftate for life 
pafled not, bccaufe he had other lands there to fatisfy the words ; ^ 

and it was not his intent to pafs it, becaufe there were not any 
profits to be taken thereby. Secondly, The fale by two executors Ante, 26. 
IS not good ; for it ought to have been by all, or by the one of 
them only. — But the Court refolved to the contrary in -both. 
Wherefore it was adjudged accordingly. 

SouUe againft Gerrard. eAiE55. 

Michaelmas Tirm^ 37* (^ 38. Elix. Roll 1 149. 
If JECTIONE FIRM-*. Upon not guilty pleaded, a fpecial ^ <»cvifcto*«r 
^ vcrdia was found, that Richard Baker vfzs fcifed of his land y/be^fX'"'* 
in fee, and held it in focage, and had iffue four fons ; anddevifcd cvcrjancTi/^* 
it to Richard^ one of his fons, and his heirs for ever; and if dhwMna^A, 
Richard died within the age of one-and-twenty years, or without *•* «'''^' '^*» 
iffue, that then the land Ihould be equally divided aniongft his ^^J^\ *^'f*. 
three other fons. The devifor died. Richard, the devifee, had j^^Ti^'^^^f^ 
ififue Afaryy and died within age. The three fons enter, and let had imic a 
it to the plaintiff. The defendant, by Mary\ command, oufted daughter, and 
him.— Gl AN V iLE/or the plaintiff. It has bedi objeacd, that this ***^ "^^'^ *««• 
remainder Ihould not toke efffca, unlefs Richard diti without iffuc 1I^SmS« 
and within age ; for this disjunftive or fhall be taken for the co- taU. 
pulative and : but that cannot be ; for that were to conftrue the ^ 
intent againft the dired words of the devifor, which never fhall i.co! ScVb. 
be. — Secondly, It hath been objeded, that this remainder is li- Cro. Jac.'ii'. 
mited to depend upon a fee fimple ; which cannot be. 1 agree ^90- 415. 44^. 
that at the common law, as 19. Hen. 8. pL 8. and 29. Hen. 8. y"**^- '• 
Dyer 9 33. a remainder cannot be limited to depend upon a fee ,.Roii.AbrS 
fimple: but after the '32. Hen. 8. c. i. it well might; for the OiJb. Dcv[ 34,^* 
ftatute gives liberty to every owner to difpofe of his land by de- Raym- 453. 
vife at his will ana pleafure : fo thereby the land ought to pals ac- 3* Bum. 19 «. 
cording to the will of the devifor ; for fo the a£k of parliament wil- ^\*^|^,**^; 
Icth : and as a renuinder may be limited to depend upon 3 fee m^ *^"** ^^ ' 
by aft of parliament, fo it may by a will; yirhich is to be con- i.Paer.wnLij. 
iirued in luch mannen And this is the opinion of Monson in >• Stra. 730. 
Pioufden^ 413. And here, if it cannot be good by way of remain- *• ^'™' ' ' *5- 
dcr, vet it fhall be as a fevcral devifc ; fo that the remainder li- ^^^p-»34h»o. 
mired fhall be as a feveral devife, and as a revocation of the firft Dou5i.164.3au 
eftate after fuch an aft done ; which may well be. — Anderson. 337. 
The words in the aft of parliament, that '^ he may difpofe at his i« '^^^^ ^^^ 
" will and pleafure," are not to be conftrued fo largely as hath ^3> ^« 
been faid ; out he may difpoie at his will and pleafure, fo as it be 
according to the rules of law, otherwife it is a vain will : and if 
other conftruftion ihould be made thereof, there would many ab- 
foidides enfue thereupon. In thij cafe, if the limitation had been 
fiiglc, v/K. ** if he died w^ithout iflue, &c." it were plain that it Oo. Jac.411^ 
vai an eftate tail \ for that Ihews what heir ought to have it, and 

N n 3 explain! 



5^6 



SCULIZ 



(a)Cro.Jac.^92. 
2. Roll. 216. 
Hutt. 60. 
2. And. II. 142. 
Palm. 49. 
Winch 56. 
Cro. Car. 58* 
Finch. 46. 
Brid{. 135. 
Dy.33. pi. 12. 
2. Leon. 114. 
Vaugh. 271. 
(^)Cokey99.b, 
•13. b* 
Hob. 130. 
sJ^oU.Ab.447. 



Michaelmas Term, 38. and 39. Eliz. In C. B. 

explains the former litnitation, and is not repugnant thereto : and 
I conceive that this part of the limitation, ** if he die within age,** 
is utterly void ; for a remainder cannot depend upon a fee, and 
then it is all one as if the limitation had been fingle, " if lie die 
" without iflue :*' fo Richard had aa eftate tail which defcended 
to his daughter; and fo the defendant's entry was lawful. Where- 
fore, &c. — W ALMS LEY. The words in tlie ilatul;^ ** at his will 
and pleafure,*' are to be conftrued, that he is enabled thereby to 
devife by his will to what pcrfon what quantity of land and what 
cftatc he will accoVding to the rules of law ; but it enables him 
not to make any dcvifes againft the rules of law : and here tlic de- 
vifor hatii given a fee, fo as nothing remains unto him : where- 
fore he cannot to that intent limit a remainder over ; for if fo, a 
former title and eftate would thereby be defeated by a new one, 
which is againft all the grounds of law ; whereby a remainder is 
void which depends upon a fee {a). But it feemeth here that 
Richard hath an eftate tail by the words, ** and if he die without 
" iflue," &c. He conceived alfo, that if the remainder might pafs 
upon his dying within age, yet it could not be until he died with- 
out iflue alfo : for the words being, " if he died within age, or 
" died without iflue, then^ tffc.'' this theny which (hews the begin- 
ning of the remainder, fhall be when he dies without iflue, and 
not before ; fo it is all one as if tlie disjunftive or had been a 
copulative (A) : wherefore the plaintiff^ Ihall be barred. — Beau- 
MOND accord. The ftatute " that he may difpofe at his will and 
** plcafure*' goes as well to afts executed as to devifes ; but thole 
ought always to be fo intended as that they may ftand with the 
rules of law ; otherwife his will is vain : wherefore this remainder 
to begin upon the dying within age is vain ; fo as the firft part 
of the will is of no value. Then the fecond part makes that the 
dcvifce hath an eftate tail, although it be in a deed ; as 5. Hen. 5. 
fl, 6. and 37. ^J/t/e^ 15. a fortiori in cafe of a devife. Wherefore, 
&c. — Owen accord, that the remainder cannot begin upon the 
firft part of the limitation no more than if it had been upon a con- 
veyance or grant ; but thai is void : then the other part makes it 
an eftate tail. And I agree, that if the remainder might commence 
upon the firft limitation, yet it ought not to commence by the 
words and intent until the other part be performed alfo, viz, that 
the devifec died without ilFue. Wherefore here tlie eftate is in the 
daughter.— And it was adjudged for the defendant. 



Wentworth againft, Wi ight. 

QUARE IMPEDIT. The cafe was. One D^yies, incumbent 
^ of the church of ^-Z. was created biihop of Saint J4/aph. The 
queen thereupon prefeiucd tlic defendant to that church ; and the 
plaintiff, being patron, brought the quare impcdit ; and; Whether 
the queen by prerogative or the patron ought to prefent ? was 
t\\t qucftion upon a demurrcr.-r-YFXVERTON y^r the plat nuff. 
There are in hw divers avoidances of benefices, whereof this crea- 
tion of the incumbent into a biihop is one, w-hereby the church 

Pofl. 54a. 601. 790. Owen, 144. Moor, 399, Cro. Jap. 64%. 69ft. Dyer,3;9S» .2. RolL Abr. 343. 
Vaui^ii. i$, ^c. 3. Uv. 377. '^li. 

bccom- 



Casi 56. 

I fan incumbent 
be tnade a bU 
fhop, me church 
becomes void ; 
•Dd the king 
/hall pr^fiwit by 
virtue cf his 
picrogativei al? 
thoo;;h iho pa- 
tron be a Jub. 



Michaelmas Tcnn, 38. and 39. Eliz. In C Bn 527. 

Iccoming void, the patron fhall have the benefit, and prefent ^***'''T***"»^» 
^ain ; and I know not any rcafon why the patron fliould not y^^jQ^^,'^ 
have the benefit of this avoidance, as well as in other cafes of avoid- 
ance, as in taking of a fecond benefice, deprivation, or otherwife; Shower, 45;. 
and there is not any book whereby it may be proved that there is ****• '^ 

any fuch prerogative in the queen, but only 5. Mary, Brook** Prefifa- ^ ^^ '°^ 
•• meni ai EfgUfe^** %u and againft that is the opinion 1 1. Hen, 4. ^] uJi* su' ' 
fL 37* And if a church becomes void by the incumbent's being i. Vero. 419, * 
created a bifhop, the queen or patron may prefent ; and 4* ^"ft. 356. 
5. Edw. 3, « ^uare Impedit,'' 35. 21. £dw. 3. pL ^9. I . £dw. 3. |^^ 54o- 
fl. 5. 6. Hen. 4. fl. 5. altliough it appears in thofe books that 1^^^^^' 
the church was void by the incumbent's being created a bifliop, ^o. * 

yet the queen made not any title to the benefice for tliat caufe ; Ld. Raym. 25. 
which is a great argument that the queen. hath not any fuch pre- 
rogative : and fo are 44. Edw. 3. pi. 25. and Temps Eduf. ** ^are 
Jmfedit^** i8i. where die king (although the benefice was void by 
creating the incumbent a biinop) made not any title. And Doilor 
mnd Studeniy 1 i6.b. is, that if a benefice be void by death, creation, 
or ocffion, the fix months (hall be accounted from the time of the 
death, creation, or ceffion; which proves that the prefentmcnt 
appertained not to the queen ; for then there could not be any 
lapfe. And 6. EUx. 228. the opinion is exprefly that the queen 
hath not any prerogative in this cafe. Wherefore, &c.— Dre\0^ 
} contra. Tne bool^ vouched that the king, having title by his 
prerogative, did not take advantage thereof but made other title, 
are not of any authority againft the queen : but fooie of them, as 
41. j&/w. 5. pL 5. and 17. Edw. 3. tL 40. and the greater opinion Poft. 790. 
in II. Hen, 4* pL 37. prove exprefly for the queen. And the Cro. Jac. 691. 
common experience at this day is^that the queen, in all thofe cafes 
of creating the incumbent a bifhop,hathprefented to his benefices ; 
and fo there be many precedents thereoh In 6. Elix. Dyer, 228. 
the plaintifiF did not demur upon the queen's prerogative ; but 
took ifliie, that the church was void by refignation before the 
creation. And although it is faid that this prerogative cannot be 
proved by reafon, this is not material ; nor ought there any rea^ 
fon to be given or enquired about the queen's prerogative : for in 
regmrd fhe is the head of the wea] p\iblick, tmi defends her fub^ 
jefts and their pofleffions, the law attributes unto her many pre-' 
rogatives, for which no rcafon can be yielded ; as to have the 
tithes of lands lying out of any parifh ; to have the primer feljin 
of all lands, as well of others as of thofe which are hoiden of her 
w capitf ; to have the temporalities of the bifhopricks ; and the 
like. Yet there is great reafon alfo for this prerogative ; for the 
queen hath advanced the incumbent to a great dignity, arid it is^ 
her great lofs to part with the temporalities of the bifhopricks \ 
fhe was alfo the means to caufe the avoidance of this benefice. 
And it is an ufual practice that the queen, for themoft part, upon Cro. Jac. 691, 
creating of biOiops, grants unto them to hold their benefices m l>y«'» »««• ^ 
emmendam^ which is good againfl their patrons ; bccaufe the pre- ^^ 54»» 
ientations belonged unto her: and that is as great a prejudice to the 
patron, as if the queen herfelf had prefcntcd thereto. Wherefore, 
^* . 

N n 4 Marfh 



Si9 Michadmas Term^ 38. & 39. Eliz. In C. B. 

Cass 57, Marfl^ againfi Curteys. 

Trimty Term, 37. Eliz. Roll 131. or Hilary Term,^S. Eliz. Roll l^OZ* 

AcoDdidontlttt p JECTIONE FIRMjE. Upon % fpccial vcrdia it was fbuiid, 

cheldreeOaU H ^^ ^^ plaintiff was fcifcd of a meifuage and lands in fcc^ 

^imJfriL'tU *^ J^^ ^^ ^ ^^ defendant for years, rendering rent upon condi^ 

^ kmfi* U bio. tion» '* that the leflee (hall not parcel out the land, nor any part 

ken if he let the <« thereof from the houfe." The lefTee grants all his term in the 

^!hLt^^hl houfe, and part of the land, retaining to himfclf the rcfidue of the 

Uthete^^a^^ land; and afterwards lets part of that refidue. The rent afterwards 

lerwtfdtaQoepts IS arrear, and demanded by the leflTor, and accepted : and for the 

afrent, it will condition before brelcen ne enters ; and, Whether his entry were 

bar hU entry for coQgeable or not ? was the queflion. — Gl anv ile far the pimntiff, 

thccanditkm ^vA, The condition is here broken, for the wojrds " parcel oijt 

pSt!$7». 553. " *^ ^^^'* " * compion term in EJfex ; which is as much as to 

^^ ' ' fay, that he (hall not let or divide any part thereof from the hoofe, 

t^^LAbltr^ ^^^ ^^^ *^y fhould all go together ; fo the condition is clearly 

fl Leon. a6i. ' broken : the acceptance &en of the rents afterwards (hall not eftop 

}, Co. 64. him to take advantage of die condition, becaufe it is coUatentl ; 

Co. Ut. »oj. bm odierwife it is where the condition is for non-payment of 

w^'i^nft^sV. ^^^^ • ^^ ^^* difference is proved by the books. 4/i. AJf. 5- 

Covrp.»43,8o3' ^O- -E^/w. 4. fl. i8t Whercforc, &c. — And as to the firft point, 

^. TrrmBiV sdl the Juftices, Andersok, Walmsley, and Beaumokd, 

4*5* agreed clearly, that the condition was broken : for although it 

were obje&ed that the land is net 'parcelled from the houfe, but 

the houie from the land, and fo the condition not broken in the 

words, and a condition ought to be taken ftriftly ; it is all one, 

where the houfe is divided h-om the land, and where the land from 

the houfe ; for the intent of the condition is broken, and alfo the 

words ; for the land is divided and parcelled from the houfe ; and 

the dividing thereof from the houfe is the matter and fubilance of 

the condition ; and it is not material where it began, nor where 

the feparation was made. Wherefore, &c. And in proof thereof, 

vid€ 5. Edw. 3. " Dtbt^^^ 15. — ^For the (econd point, Anderson 

and Beaumond held, that this acceptance (hall bar him of his 

iuitry ; for he accepted it as rent due unto him by the leafe ; 

. which cannot be, if the eftate be undone by an aA precedent : for 

«Jf he had entered for the condition broken, he coula not have had 

the rent ( and when he accepted the rent, he (hews his intent i^nd 

eledion to have the leafe continue: and there is not any diflerence, 

9S to this purpofcf betwixt a collateral condition and a condition 

for paying rent ; for the reafon that he (hould be barred of his 

entiy is one in both cafes, v/z. becau(e, by his own a£t, he hath 

Affirmed the leafe to have continuance after his title of entry \ac^ 

crued unto him : but the acceptance of rent due before his title of 

entry is no bar ; for it being then due he might have debt for it \ 

Und it doth not (hew any ele^ion in him to continue the leafe, as it 

dad) here. WJi^reforc, &c. — W almsley i contra in this point. For 

fh^re hath b^n 9 common difference betwixt a condition collateral 

^foA a condition for the payment of rent : for, in the laft cafe, ac- 

^pt^qcc pf th? rent 4\|c ^er difp^nfctU tbcrew ith \ but «ot with 

the 



Michaelmas Terai 38 & 39. Eliz. in C. B. $9% 

the firft. And tkk diffi^rence was 9meA here in RawTtm^ Cafi^for ^^^i 

thtjhif^ where the condition was ror the payment of rent, and a q^^^ 

fine : afbr non-rayment of both, he accepted of rent doe afterwards. 

And it was held to be a difpenfation with the condition for non- 

psyiDcnt of the rent, but not for the other part of the condition. 

And this difference ftands upon good reafon, becaufe the accept* 

ance of the rent is a eood difpenfation with the condition. And 

in that he received the rent itfelf (the non-payment whereof is 

his title of entry) that acceptance is a. (atisfajiion unto him 

for the rent: but it cannot be any fatisfa£tion for any other 

matter. For one thing due unto me, cannot be fatisfa^tion for 

another thing due unto me ; and the rent is due for the profits 

pf the land taken by the leflee. But when the leiTor is fatisfied 

of the thing for which the entry is given him, (a) it is good rea- («)Tliatii,lHii 

fon to bar him of his re-entry; as where the lord hath caufe ^^ JJ^uJ^^a^ 

ceptviu acceptance of the rent fhall bar him. Wherefore, &c. ^oynM^n^ ^^ 

OwEii ahfente^ adjoumatwr.'^hktr9iix6%^ it was adjudged for the Cowp, S05. 

plaintiff. 3. Co. 44. 65. 

Lee and his Wife againfi Colefhill. Cah 38. 

Et^er Tsrm, 38 JS/rs. i?W/ 1707. 
r\£BT by them, as executors of Smith upon uk obligation, AaoU^atioa 
^^ againfl the defendant, as executrix to ColiJhiU her huiband. coMfeiouig^o. 
The defendant p}eaded die condition to be for the perform- vaunts, fome^i 
ance of covenants within a certain indenture betwixt Smith on ^^^ ^ *• 
the one part, and CoU/hiU on the other part ; whereby CoUfinll, SfiSw^rSL 
being cuftomer of L^ndon^ made Smith his deputy in me faid of- tatt^ «nd othera 
&e, and covenanted to furrender thofe ktters patents before a |ood,u void fiar 
certain day, and to procure new to himfelf, and the faid Smith ; tht wfaolsi 
as alfo, that if Smith died, living CcUJbUl^ that CoUJbiU ihould pay 
to the executors of Smth 300I. and fhews the ftatute of 5. Edw. o. 
c. 16. tliat all promifes, barguns and contraAs, for the buy« Nor, io2« 
ing of divers offices (whereof £i8 is one), fhall be void: and there- ^^o^ ?'>• 
upon the plaintiff demurred.— Glamvile prayed judgment for the ff^Jj^'jjf** 
plaintiff; for there be many covenants within the indenture, ., ^o. s^. 
whereof fome are good and lawful; and for them, doubtlefs, the i! And. 107. 
obligation remains good: for although the ftatute c. Edw. 6. 150. 
c. 10. makes the covenants concerning the buying ot the office, y.^'*?|Af*"**^* 
and the obligation as to it void, yet for the other covenants there- Mow- Ski.*^ 
io recited, being hwful, the obligation continues in force. Fide carth! ^30! 
ao. Hen. 6. pL 23. and 4. Hen. 7. that an obligation may be avoid- i. Bac Abr. 
cd, or difcharged in part, and Kand good for the refidue. — Drew 541 • 
i centra. All the parts here of this indenture concern the exercifing ^ **^ ^^* 
of this office; and if any of the covenants concerning other matters ^^ wood's Coiu 
in the indenture fhould be accounted good, yet the obliption is 3^ 
void in all (but for the good covenants peradventure an action of Shcp. Tonck 
covenant would lye, if they be not performed); for the ftatute 3*7- 
&tth, the bond to that putpofe fhall be void; and then, it is not 
poffible it fhould be void to this intent, and be good' for another. 
And it hath been held in the queen's bench, if a parfon makes a 
Icafe which is void by the flatute for non-refidence, and there 
it an oblij^tion for the performance of covenants ; although 
there be tome covenants therein which do not concern the 
Mfe, y^t ^ boqd is ^tirely void* otherwifey all the meaning 

of 



$3P Michaelmas Term, 38. and 39. Ellz. in C B. 

Lkk ana hit of the ilatute fliould be defrauded by putting in a lawful covc« 

^''" nant within the indenture. — Wherefore the Court here did not 

C0LE11U1.L. *^^hver any great opinion » but, ah/cntf WAhMShEY^ adjournatur. 

— ^And it was afterwards adjudged, that this obii^tion wa» void 

in every part^ being againft law. 

^^" S9* Wilkinfon againft NetherfoL 

A penal infor- jNFORMATION upon the ftatute for buying of leather, brought 

lfeinaI^urt"of *^ ^^^ ^^^^* ^^ pic-powders of D, The defendant was tliere 

pie-povidcrt; Condemned, and in execution \ and being brought hither by ba^ 

bot judgmenc beas corpus^ it was moved, that the judgment was void, et coram non 

fivcn on \i is judici : for although it be the king's court, yet fuit Ihall not be 

"^^i^'^b^'writ ^^^^ upon any penal law, but within one of the queen's ufual 

^Terror. ^^" courts at fFeftminJiery as Plowden^ ao8. Stradl'm^s Cafe. — And 

' hereto all the Court agreed, tliat a fuit is not maintainable 

inft?*27*2. ^^^re. But becaufe they have power to hold pleas in actions of 

a.Hawk. 3S1. debt, and fo had colour to hold plea in this aAion, the judgment 

DoQgU 244. is not void, but voidable only by error. - Anderson faid, the court 

of pie-powders hsid this name, becaufe they are there to hold plea 

only of things parui fondcris^ ▼12. of contrads and other things 

done in the mr» 

Cass 60. Wlllis ogatnft Fletchcr. 

Bafiertirm, 38. £//«• ^L 1173- 

commwf may" "D EPLEVIN. Thc defendant made conufance for damage fea^ 
mow for da ^ ^^ fa^U as bailiff of y/. and fhews, that B. was feifed of the 
magi fe-ifant ) Jand, which was held in capite^ and devifed it to A. And becaufe 
toJ«r^ l^h ^^ *^ appeared upon thc matter that J. was but tenant m common 
ttt^xhtdLu y^^^^ ^^ ^^i^» exception was taken to the conufance; becaufe it 
ior was feifed. ' pught to have been made in the name of the heir alfo. 
Ante, 143. Walmsley held, that the tenants in common ought to join 

Port* 667. jn the avowry, and the conufance ought to be in both their 
Oyer* >4S» 3*9* namet ; for the damages are to both. 

I, Mod.Aiy. But Andeiwson and Beaumond held the contrary ; for a te- 
a. Mod.'oi. ^^"^ ^^ common may folely defend (^) , and he only may take a d if- 
i.Pecr.wiii*5i6..^refs, although his avowry is by way of aftion, and yet may juf- 
>Peer«WiU. 20. tify in it. But becaufe he (hewed not the conufance what eftate 
MS- the dcvifor had at the time of the devifce, but only that he was 

p^^j^'^^5*«3-feifcd oftheland, it was held to be ill: and therefore adjudged 
ll^^!^\^^. for the plaintiff. . . 

Stra.763. liti. s.Bac.Abr. 53. i. Term Rep. 759. iXm/ii* 

Caw 61. Aldworth agahtft Peel. 

Onjodgment "TXEBT againft P^y/ as executor. The plaintiff had judgment 
to xcxoHtrdeb^ -L/ ^q rccovcr dc bonis ie/iatQi is ; and thereupon a fare facias was 
©"ain^ff^cainot ^i^arded, and the fhcrift returned, /quid nulla kabuit bona ufiatoris ; 
have a /«>,'>. and th? plaintiff furmifeth, that he had wafted the teftcitor's 
n^idilwiiifro. goods ; whcrcupon he prayed ^ fcire facias^ why he fliould not 
friit, unicfs thc have execution de boms propriis. — And ruled by the Court, tliat 
ihcriflT returns ^j^j^ ^^.j^ fliallnotbc awarded UDon the furmife of the party, upon 
Ante/i^'fi* ^ dcvaftation ; nor in any cafe wlicre tlie judgment is de bonis 
Poft. 859.' tcflatoris^ uulcfsit be upon return of the (hcriff, where he returns 
Cowp. 293. a dcvafUivit. — Vide 9. Hetu 6. pi 9. (s' 57. Fit%. i/.** Execution^'' 5, 

Gregory^ 



Michaelmas Term, 38. and 39. Eli?. In C Bt SP 

Gregory againft Hill. Case fo. 

T> EPLEVIN. — ^The parties being at ilTue upon a prefer iption to What (hall be 
"- have common in certain land called Stlch-Hah, m die county ^5^"^^^/^; 
of /farwzV^, it was held by Anderson, Walmsley, and Beau- p^"crip^n. 
AiOKD, abfente Owen, who delivered their opinion io to the jury, Ante, 390. 
tliat w^hcre one prefcribeth to have common appurtenant to his 
houfe, and twenty acres of land, and it appears upon the evidence '^'*^* 
tiiat he hath but'eighteen acres, or a lefler parcel, yet he hath not 
failed of his prefcription. But if he had twenty acres, and ten 
acres arc freehold, and the other copyhold, he there fails of his pre- 
fcription ; for he cannot make a prefcription for both. So it is 
if it appears upon the evidence that part of the land was copyhold 
an hundred years fince, but now is his freehold. 

Hubert's Cafe. . c^« «i- 

In thi Star Chamher^ 

/^NE Hubert of Norfolk was conviftcd in the ftar-chamber upon if t fine be le- 
^^ a bill exhibited againft him, for procuring one fFebJier Xo vied by a coun- 
counterfeit himfelf to be one Alexander Gellibrand (who was then ^^^ ^^ * 
beyond fea),' and to acknowledge a fine of his lands by the name ^i^^^a*^ tba 
oi Alexander Gellibrand^ there being then in court The Lord Keeper^ luiJ. 
PoPHAM Chief JuJHce^ Gawdy one of the Juftlces of the queerCs Anic,4e9. 
bencb^ and Walmsley one of the Jujllces of the common pleas ^ and ,, Leon.ii^ 
divers lords. — The fentence was, that he mould make nne to the Ncy, 99. 
Quecn, and fhould be imprifoned, and that the fine levied unto him Moor, 630. 
mould be void (if it could be fo done) by entering Tivacat upon '• ^^od. 46. 
the roll, or othcrwife, as the Juftices of the common pleas Ihould sdic^tl'i.^ 
beft approve ; and if it cannot be fo made void, that then Hubert ^ by i. Hawk. P. C. 
fine or otherwife, as Alexander Gellibrand Ihould dcvife, Ihould re- 143. 
convey the land to him and his heirs in the fame manner as it ^^' ^^**- 9- 
was before at the time of the fine levied.— Popham faid, tliat it "B^Vbr^'-S, 
might be well made void by entering a vacat upon the roll ; and J',,, ' '^ •* ' 
that it was ruled in the ca(c of one flolcomb in the common pleas, 
where one brought debt againft Holcomb^ and procured a ftran- 
ger in his name to appear, and confcfs the aftion in the name of 
Holcomb; whereupon judgment was entered. This praftice being 
afterwards examined in court, and difcovered by confeflion, a 
^'ocat was entered upon the roll. To warrant this another prece- 
dent was (hewn, tempore Hen, 6. — And TheLord Keeper faid, 
that he had always noted this difference : If one of my name le- s« Co. 61. 
\ ics a fine of my land, I may well confefs and avoid this fine by ^°' ^***** > 
Ihcwing the fpecial matter ; for that ftands well with the fine : 
but if a ftranger, who is not of my name, levies a fine of my land 
in my name, 1 Ihall not be received to aver that 1 did not levy 
the fine, but another in my name, for that is merely contrary to 
the record ; and fo it is of all reconufances, and other matters of 
record. But I conceive when the fraud appears to the Court, 
as here, they may well enter a vacat upon the roll, and fo make 
ir no fine, although the party cannot avoid it by averment during 
the time tliat it remains as a record (a). 

(^) SeeHc Cruift:** Eflay on Fines, zd. edit, p. 311. to 3x3. upon this fubjeft. 

Bon 



SS^ Michaelmas Term^ 38. and 39. Eliz. In C. B. 

Caib 64. Bon againft Smith. 

Dcvift to j4. re- t^LANYlLEf ferjeantf prayed the opinion of the Court in this 
■winder to the VJ ^^f^ ^ j^^^ ^^ '^ff^^ afon and a daughter, and dcvifed his 

A^woman'who ^*"^ ^° ^*^ ^^" ^" ^**' * *^** '^^ ^^^^ without ifluc, that it (hould 
kas changed the remain to thc ncxt of his name, and died : the fon died without 
namiB by mar. iflue, tlie daughter being then married :. Whetlier fhe (hould have 
viage^r«vi«irito this land? was the queftion. — And lield per Curiam that flic 
^edeath of jf. fl^ould not, for fhe had loft her name by her marriage, but it 
Poft.'l^e.*^^'^ fliould go to the next heir male of the name ; but if fhe had not 
been married at the time of her brotlier's death, thc daughter 
3^ Aff. pi. 47. fhould have had it, for fhe was thc next of tlxc name. — Hde pof- 

Figot on Recov. I77« »• B*« ^^^ 6o7« 

Caib 65. Hollingwofth againft Afcough. 

Plea amounting A UDITA QUERELA upon a defcafance of a flatute of 2000I. 
to the general XX and grounded the audita querela upon thc defcafance. Thc 
Vktec^'lL't defendant faith, that he made another defcafance, abs(^£ hoc 
303. b. ' .* ' ^^^ ^^ made that defcafance : and it was thereupon demurred, be- 
3« Mod. i66. caufe he ought to have pleaded the general ifTue, non eji fa^um ; 
1. Sid. jo6. for this plea amounted to no more. — And of that opinion, after 

argument by the fcrjeants, was all the Court. Wherefore it 

was adjudged againft the defendant. 

Caie 66. Block againft Pagrave and Pagravc. 

Hilary Term, 37. £//«. 'Roll 6^1, 
Pcvife to a wife 'PVOWER. Upon a fpccial verdift the cafe was, That one de- 
timil hii daugh- xJ yjfgjj his land to Mary Pagrave his wife until Faith his daugh- 
age,*"and then ^^^ fto^Id comc to the agc of twcnty-onc years, and then to Mary 
to the wfi and Pagfove and Faith for their lives ; and the faid Faith the daughter 
damgbier for hath not yct attained her agc of twenty-one years ; and in dower 
thar lives, they againft Mary Pagrave and Faith they plead, that they are not 
l^d^in joint- tenants of thc freehold modo l^ forma, pr out, iic. and, Whether 
^ ^y upon the matter Mary and Faith be joint-tenants, or tenants in 

^38 ^*^' *'*' *'" common, or how othcrwife they hold ? was the queftion.— An- 
r Coin. Dig. PERSON and Beaumond. If it ijc a term for years in Mary Pa- 
^65- grave tlie motlier, and a freehold to thc mother and Faith the 

Cowp. 40. 352. daughter, this term for years cannot ftand with thc freehold, 
I Ter.Rcp.3S9. and therefore it is drowned, and they arc immediate joint- 
tenants of the freehold," and thc ifTue is found for thc demand- 
ant : but if thc term be drowned only for thc moiety, as they 
faid it was clear that it fhould be, and fhe is tenant for years, 
remainder to Faith of thc other moiety, it is then found for 
the defendant, that they be not tenants modo V forma, prout, 
bft\ But they held that they were joint*t^nants for thc rea- 
^n aforcfaid. — Walmsley agreed, that if it fhould enure 
as an immediate devife, that thc term fhould be extinft, 
and they are joint-tenants of the freehold. But pcradventure thc 
will was to make it a term in the mother, and after the expira- 
tion of the years a freehold ; according to the intention of the 
devifor, it fliall be conftruod that it fhould not be a devife of the 
freehold until after the years expired, and in the mean time thc 
land fhould defccnd to tlic hcir.-rBut'aftcrwards, upon rcleafc of 
damages, thc defendants confefTed the action. 

Michalmas 



Michaelmas Term, "* 

38. and 39. Eliz. In the Exchequer, 

Sir Roger Manwood, Chief Baron. 
Edward Flowerdcw, -j 

Thomas Gent, I Barons. 

Matthew Ewens, J 

John Leaky and John Michel, qui tarn, againft John Howcl CAti «^ 
and John Hall. 

Trinity Term, 33. EUk. Roll 24. 

I^ITOKA^TION upon the i.Elix. c. 11. And for that divers praccediiiiivp. 
perfons unknown, betwixt i. Jan. 33. EU%. and i. Marchy on an infoma- 
33. EU%. in quibufdam navibus^ to the plaintiffs unknown, *»^ f^"^ 
broo^t in firom the parts beyond the feas, ufq. Ratcliffe^ in cmi- ^^^/^ JJ^ 
Ut. AfuUkfeXf within the port oi London^ 144 pieces of buckram, ver the value of 
14 pieces of cloth of gold, 124 pieces of linen cloth, and divers goodt importei 
other parcels therein mentioned; and the faid goods and merchan- "n***" * '^'T. 
difcs, 15. Fib, 33. EU%. out of the (hips, by way of merchandife, *^%^S!l^ 
put upon the land and difcharged after four of the clock in the 4epiity.cQili>. 
afternoon, the cuftom and fubtidy for them due not being paid mer of the caT- 
nor agreed for with the cuftomer of Lmdon^ nor in any other tomhooft. 
port, nor with their deputy, againft the form of the ftatutcs in s.CNoy, jj. 
lach cafr provided: and that by reafon thereof all the faid 
goods became forfeited ; whereof the one moiety fhould be to the 
queen, and the other moiety to him who feized or fued for them ; 
and that thofe goods came to the defendant's hands ; whereupon 
he prayed procefs againft them, &c. — The defendants plead, that 
the laid goods and merchandife were not at the time ntentiened in 
the information put upon the land, or difcharged by way of mer- 
chandife, frout in the mformation, &c. Et hoc paratus ejl verifi- 
care. — The queen's Attorney by replication faith, that they were 
put upon the land, and difcharged by way of merchandife, frout^ 
i^c. in the information, &c. Et hoc petit j quod inquiratur per pa^ 
triam ; tf pradidus defendens Jimiliter. Hereupon a fpecial verdift 
was found, viz. ** That all thofe goods were taken by way of re- 
*• prixe, and brought within the port of Penryn in Cornwall^ and 
** that 15. Feb. 33. Elix. about twelve of the clock at noon -day, put 
•• into two lighters, and by them brought to die fea-Ihore, aquA 
*• abhuU refluxoy about two of the clock pojl meridiem \ and that 
" the greater part of thofe goods were put on land before four 
*• of the clock pojl meridiem ; and that the faid 14 pieces of cloth 
** of gold, and the 124 pieces of linen, were put upon the land 
•• out of the lighter after four of the clock ^g/? meridiem ; and that 
" riierc was an agreement, before the faid goods were taken out df 
•• the Ihip, made at the cuftomhoufe at iVnrjw with Richard Enys^ 
" deputy of John Bajfet^ deputy to Thomas Peyton^ the cuftomer 
" there, and with the comptroller of the cuftoras there, to anfwer 
" to the queen all cuftoms and duties which fhould be found 
•* due to the queen for the faid goods upon view of them ; and 
' that the hiA Richard Enys had exercifed diat place as deputy there 
' for three years before, &c. And if upon aU this matter, &c." 

It 



*»i 



534 Michaelmas Term, 38. and 39. Cliz. In C S. 

Lea«, ftc. i( ^j,^33 argued divers times before the Barons^ and moved, 

Howe*' &c. ^^^^"T* Whether for thefc goods, taken by way of reprize, any 

" *"' ' fubfidy is to be paid ? for the i. Eliz. c. 19. is, ** That for good* 

Subfidy niaii j>c *« brought into the reahn by way of merchandife, or carried out 

Sken"^/^* " ^^ ^^ ""^^^ ^y ^*y ^^ merchandifc, cuftom Ihall be paid :*' 

pjxe, * fo theitatute therein extends only to merchants who traffick and 

not to goods wrecked, nor to the goods of ambai&dors, or of 

any other man brought in for his proper ufe and provision ; and 

{o of goods taken by way of reprize, which are taken with tlic 

hazard of the lives of the takers of them, which are not brought in 

by way of merchandife. — But the Court refolved as to it, tiiat 

fubfidy was to be paid for tliem ; for the ftatute extends not only 

to merchants but to all goods brought in by any man to make 

a benefit bv the fale of them ; and fo it hath been often ruled 

before thelc times. 

Nibingrecmont SECONDLY, Whether thcrc were here any agreement with 

BO pay ihc fob- fuch a pcffon as the ftatute intends? for the ftatute is, that 

i^***iri^nof*" ^^ ptiftom not paid, nor the cuftomer, or his deputy, by 

mJrcLn^fe, " ^^^ with the confent of the comptroller in the cuflom- 

made with a ^\ houfe not agreed with :'' and here the agreement is not 

l»erfon at the with the deputy himfelf, but with the deputy of the deputy, 

cuftomhoufe ^j^ ^^^ zSknt of the comptroller, &c. But it was moved, that 

as dcpow ^dt ^^^^ ^^ S°°^ enough ; for the deputy of the deputy is deputy of 

faao to the the firft cuftomer ; and although there be twenty, the one under 

comptroUer, al- the Other, as the twentieth ailignee (hall vouch by warranty 

though be is not made to onc and his affignees, 38. Edw. 4. pi. at. and 7. Eiiz. 

b valid ''' "^'"^'' ^y^^* ^3^- ^^* deputy certifies falfly it is his matter's aft, for he 

" ^* * " fupplics his place ; and 32. EJw. 3. Bar. 259. conuniiEon to 

fi^*j\^, one to make purveyance for carriage, anotlier as his deputy 

5. Co'. 17/b. did it ; and held well enougl^. Here Richard Enys was deputy 

». C0.140. in/a^o, and exercifed the place in the cuftomhoufe ; and aU 

Poph. 71. though he were not de jure^ that ihall not prejudice the mer- 

^'cT" '^ chants who made their compofitions w^ith him ; for it would be 

?. Sali«I'95. ^^T mifchievous unto them to examine by what authority they 

{a. Rayrn. 6s8. fit and make their compofition. And for that purpolc vide 

Com. Rep. H- 9. Eduf. 4. 5. grant of liberty by a king an ufurper.— 21. Hen. 6. 

to. Mod. 467. attornment by a diflcifor— 18. £/iz. Lord JrurtdeFs Cafe^ fur- 

tRac.Abr.741. render to a di^ifor, and a regrant by him, held to be good.— And 

Caf. Temp. ' of that Opinion were all the Barons, that it was fufficient for 

Bar^ 150. them to maj^e their compofition ; for he being deputy in fa&o^ 

and fitting in the cuftom-houfe witli other officers, they making 

their compofition there, was well enough. 

MLfrtm Mtrykt THIRDLY, Whctlicr this agreement, being incertain, be good ? 

fhccuftomhoufc —And it was held, that it was ; for being goods taken by way of 

^^^' reprize, they could not by intendment have notice what the 

quantirv and parcels of the goods were to make a moit certain 

la) Plowd. 1. compofition ; and it is all one in reafon with EogJJhs's Cafe (a).* 

Bringing goodi FOURTHLY, Whether this were any putting upon the land after 

iii/br«ita put- four of the clock ^^ meridiem againft the u E/iz. c. 1 1. ? — And all 

tkig tbemM THE Barons relolved, that in regard it was found that tlie faid 

^*^' goods were unladen out of the mips in lighters, and by them 

Drought to fhore at two of the clock pofi meridiem^ aqua abinde ff^ 

fiuxij that was a putting them upon the land ^^«r^ the fourth hour 



KEchaelmas Term, 38, and 39. Eliz, In C. S. 535 

f^ft M#r£dSfm.-*And fo for the matter in law, they alt icfolvcd for ^»Ar, *c 
the defendants, ' Ho^S^ftc 

Divers exceptioks Were taken to the manner of their proceed- Good* mud h^ 
ings. — ^FiRsT, It is not allcdgcd in the declaration, that they were ^^^^ h «f^ 
brought into the realm by way of merchandifc, but only laid upon j{^/|J^^ 
Ac land by way of mercnandife ; which is not any offence againft dutiet. 
the law : for goods may be brought in not by way of merchan - 
difc, and yet Jaid upon the land by way of merchandife ; as goods 
of an xmbafiador brought into the land, who afterward dies before 
they be unladen, and then laid upon the land to be fold ; this i3 
noo&nce againft any law. — And the' Court feemed to incline, 
that it was a material* exception («). («] Noy,55«f«. 

ports the information good, notwithftandinf this exception. L. C, B, Pmrker^i MSS* 
Secokdly, The defendants plea ought to be concluded, et de Special plead- 
hf9c fvwkfe fuptr patriam \ and the ilTue ought not to be by replica- ing* 
Don, where an affirmative and negative is before. 

Thirdly, Twelve of riie jury appeared, and were adjourned ^. l^^imm 
to another day ; and the record is, tliat at the day four of thofc '«'*' can be a- 
twelre made default,. therefore a decern tain was awarded ; whereas ^^^^^^\^ 
it ought to have been, that although four of them adjourned, jni. mm^^ > 
made default, yet twenty others appeared ; and therefore it ought 
to have been, et quia 0^0 only appeared, et rejlduum juratorum made 
defaxilt, therefore a decern tales was awarded : and in proof hereof 
Tvas cited 1. Rich. 3. pL 4. 15. Rich. 7. pL 16. But the Barons 
doubted, whetlicr it were not helped by the 32 Hen. 8. c. 30. and 
whether it Ihould extend to informations for the party and queen. 
— Bat at the end of tlie term judgment was given for tl;e defend- 
ants upon the matter in law. 

Goodwin againjl Longhiirft. Cai» 6B. 

TTPON a fpecial verdifl, the cafe was, That a copyholder had Akafeby ac»- 
^^ licence from his lord to let his land for twenty-one years ; he py^older for 

lets it to the plaintiff for tliree years, who entered, and beine cjec- V''^ ^,f^ "** 
^ . • v^ • «• r ' A J • I 1- ** "Vr dcr a licence » 

ted, brought an f^/////?«r^i7w<r, — And it was moved, First, li ^ \t^ iot tweatf 

leafe be made by a^ copyholder for years, and the leflce is oufled, one years it 
Whether he may maintain an cjefflone fit ma thereof at the com- ««><*» and the 
mon law? And all theBarons held clearly that he might ; for it Icflccmay bring 
is a good leafe between the parties, and againft all others but the afthco^mm»' 
lord : and, as this cafe is» it is good againft him alfo, by rcafon it iaw. 
is done by his licence. — Secondly, it was moved, Whether this Ame,469. 
leafe being but for three years be warranted by 1/is licence to make ^^^' S^S- fi«l* 
a Icafc for twenty-one years? But the Barotcs fpake not much ^'^' 
thereto. Sed adjeurnatw. — But afterwards, upon Another motion, «.Coiii,Di^53*. 
they all rcfolved, diat it was a good leafe, and this aftion well ^*^*^* '^*'"* **> 
snamiainable thereupon at the common law : and it was adjudged ootef^'e 
accordingly for the plaintiff. ' ^^' 

Bufkyn againjl Edmunds. Casi 69. 

Mifhaelmat Term, 38. viT 39. A7/«. 

TERROR brought in the exchequer chamber, and afligned, Be- In debt for rent 
• caufe the plaintiff declares in debt againft the defendant as af- •?•""*'* ^^ ^' 
fignee ; and fuppofcth, that he let to J. 5. for years, rendering rent; V^,?l ^^.''tr 
and that J. 5. by his will devifed to the defendant, and he entered, Zu^^t^ 
and was poflefled, &c. ; and fhews not that the leflee made any the defendant 

entered hj tlMi 
iflem oTtliecxecntori or virtutt Ir^jfiWi.— Ante,4i$. Poft, 636, gaj* i. RoH. Abr. 459. 6i«. 
V ^A Abr. 4at» ^ro« Jac. 243. 285. CaMh. 519. 



Birriey ezccutors; nor that the defendant entered wiA the aflent of the 
. XswaI^s. ^^^^^Jtoff J^or virtuu kgatiamf; nor hath he conveyed any hwful 
eftate to himfelf, but is in merelv by tort ; and fo the aftion was 
f«) See Cowp. ^ot maintainable (a).— And for tfrn canfc all the TtJsTicEs and 
'^^' Barons held the declaration t^ be ill* and therefore reverfed the 

A&muMd nraft iudgnient.— But for the princit>al matter. Whether there ought to 
ftemadeoficnt. be a dcmandof the rent? all the JUstices^nd Barons held, 
Ante, 415. ^2( ^]^^^ ought to be a demand, although it were payable out of 
4.Bac.Abr.355. the land (6)^ except Anderson, who held the contrary ; for he 
1. Wood t Coo. faid, it being appomted to be paid out of the hnd, it is out a fum 

(h) See 4* Geo. s* c tt» 5t* 

^^•» ?•• Bagfhaw agaifijl Phyh. 

MUbatlmat Tirm, 57. & 58. Roll 524. 
incWbtonbond I7RROR of a judgment in debt.-^The plaintiff declared againfl 
for fuch 1 Aim •»-« the defendant, as executor to J. S. in debt upon an obligation, 
bc^fowid*\^ t* *"^ demands 47L 8s. 8d. moneta Flandria attingcn. ad valentiam 
writ of cn^airy ^\ ^** ^r The defendant pleaded pUne admimftravit \ and found 
what the value a^ainft him ; and judgment thereupon, qu^d recuperet debltum pr^e- 
uUEngnjh. ^/^iMi.— iThe error aifigned was, Becaufe it was not enouircd by 
PoiLSoo. the jury upon taking the yerdiA, nor by writ, to enquire of tlic 
Cio. jac ss. value of the money, and to give judgment accordingly. — Daniel, 
Yrf*^' 775* ferjeaniy moved, that it was well enough, and the value fliall be in- 
Ydv. 151. tm. ^g^jg^i to be as it is in the declaration ; and to that purpofc cited 
3. Lcoiu 113. ? precedent in l%e Book of Entries^ fol. 157. and another precedent 
s.Brownl.ioi. in the queen's bench, HilL 3a. £//z. Rst. 637. tetwixt Davids and 
I. Leon. 41. fFj^cbaiis, where debt was brought for aol. and declares upon falc 
'u!'^*"'^^' ^^^^^^^^ pUc^*^d« f^*" *^1- P^rtugaBa^t fua attinrunt ad valentiam 
iTMod. ipo. ^^^' l^i^li'ffionet^jingliit ; and upon la nihil dicit bad judgment to rc- 
Seei. BacAbr. cover the 2ol. ; and It was much debated and argued.r-But all the 
ii.innotis. JUSTICES AND Barons here held it to be error; for the value of/Zr^ 
. 5.Com.Dig.xS^. ffii/b money is not known to us, no more than the value 'of twenty 
Cartb. Ml. <piartcr$ of wheat, or the like, whereof the value is to be enquired ; as 
* * II. Hen. 7. tl.^. and 9. Edw. 4. pL 49. which is the reafon that the 
plaintiff in nis declaration ou^ht to exprefs the value thereof: but of 
current money here,whereofthe value is known, it needeth not; 
and therefore the judgment here ought to have been fuod recuperet 
the 47L 8s. 8d. Fhmyh money, and a writ have been awarded to 
enquire of the value Uiereof ; and therefore, as it is given, it is er- 
roneous ; and for that caufe the judgment was reverfed. 

Casb 71. ScafTord againft Pooler. 

Trinity Term, 36. Jl/r'ft. Jt4ll llj. 
To fay oC a ma- A CTION vpoH the cafe for thefe words : Whereas the phdntiff* 
gtftrate, that he /a ^ gi^^ y^^^^ ^jjj y^t J, ^ juftice of peace in the county of 
a^ difcharsed Qlf^cejier, that the defendant apnd A. in c&nutat. Glcceftria, fpakc 
ZoD^i^dMu *rf« ^o«l« •' " On« '^^** ^^^k arretted as acceffiury of felony for 
mcmUkrf tothe ** fiealin^ his owngoods, Mr.Staffwd {inmindo the plaintiff) 
Ibiiing hit own «« knowing thereof, difeharged the faid fFeU by an agreement of 
^s,lfl adioo. c< jl. whereunto Afr. Staford was privy, whereof 30s. was to be 
«* paid Afr. Stafford^ and was paid to his man by his appointment/* 
4* Co. 16. a. xhe defendant pieced not guilty ; and found mumt htm to hi$ 

l.RAlLAb.57.a. * o ^ 9 

!• Mod. 71. s« And. iso. Cio. Jab 14}. Ld* R«|m. 13(9. Str. 617. t itt. 

damage 



Michaelmas Term, 38- & 39. Eliz. In C. S. S37 

damage of 40 marks ; and judgment given in the queen's bench Staff©*© 
for the plain tifF. — And now error th#rep.f brought, and afligned. that poo'Jig, 
the words were not aftionable ; for they are infenlible, any it is ' v 
impoflible that one Ihould be arretted as acceflary of felon/ for 
ilcaling his own goods : for although one peradventure may be a 
felon for ftealing his own goods from his bailiff, with an intent to 
•harge him with them ; yet he cannot be an acceffory in felony 
for ilealing his own goods ; for he is therein principal or no- 
thing (a). And although he faid he difcharged him by agreement, (a) 7. Hen. 5. 
&c. yet that is not any offence ; for it is not averred that there P^* 43- 
was any offence committ'^d : and althougli he were arrefted, vet |' p*"^^'^***** 
it may be he was notgfuilty of any offence ; and he might alfo cfif- ^',u(i,\]ol 
charge him by agreement, and yet it is not any offence ; for it may Dalu c loj^ 
be that in an appeal of robbery he compounded. — But all the 
Justices (except Walmsley) held, that tne aftion was main- 
tainable ; for one may be an acceffory in felony for ftealing his 
own goods, viz, where he procures another to fteal them : and 
although there were not any felony committed, jret being arretted 
for that caufe, he ought not to diicharge him upon an agreement % 
for money ; for it is a grcat^offence, being done by a juftice of . ♦ 
peace ; and, being falfe, is a great dander to him ; and ihall be 
intended to be fpoken in the worft fenfe, that he was privy to the ^^^* *•• 
agreement to conceal the felony. Wherefore the judgment was 
affirmed by all the Juftices and Barons, except Walmsley. 

Woodward againfi Parry. Cas« 71. 

"P^EBT upon a bill obligatory of 14I. The defeqi^ant fVoodiJbard j^ ^ bjU obUga- 
^^ demanded oyer of tlie bill, which was, That Woodward ^z- tory, that which 
knowlcdged that he owed him i^X.folvendum unifcum 6/. uponac- comts after the 
count between them ; and it was entered in hac verba : and the -Z^'*"''^'"* '* "^ 
defendant thereupon demurred in law ; becaufe it% a debt of 20I. g*"on/ *° 
pand not of 14I. and he ought to have counted accordingly, or at 
leaftwifegiught to have counted upon the bill as it is.— And it cro^cM^/°f ' 
was thereupon adjudged for the plaintiff ; and tlft error now af- ^.t^Abr.ll'^^ 
figned in this point. Butall the Justices and BARONsrefolved, 
that it was good enough ; for there is but 141. due upon this bill: 
and that which comes after ihc/olvendum is void, as that which comes 
after an habendum. — A second error affigned was, For that Every platntlflr 
this a£tion was brought by Parry and his wife for a debt due to the """y <"»»« ♦« f *'«- 
wife before the coverture : as alfo, becaufe Parry being a clerk of the ^"'' ^ 'j^'j 
queen's bench, it was entered upon the declaration, querens in pro- JJJ^ wife may 
friiperfona^ bfc. which cannot be ; for although the baron hath a join in debt on 
privilege, yet the feme hath not. Sed non allocatur : for every plain- bond due to her 
tiff, if he will, may fue in propria perfona \ and this entry is not by <'«'"'/»^» 
reafon of his jfrivilege, but becaufe they are tliere in perfcn. 
Wheicfore the j udgment was affirmed . ^ r^L Abr. c«o. 

a. Ld. Raym. 1398. 5. Com. Dig. 193. 

Grymfton againji Reyner. Ca$i 7*. 

Hilary Term, 38. £//«. Roll g^^. 

A SSUMPSIT. For that the defendant, in confideration of fuch On feveraicau. 
•^^ clothes delivered at fuch a place, promifed to pay 81. ; and in fes of aaion fo. 
confideration of a debt upon arrearages of account, the defendant ^^*' ^^amagw 

^ r^ & » maybcaflcffedj 

and as they are good or bad, fo they may be feverally ailirmed or revctfed.^i. RoU. Rep. 14. Moor^yoS. 
t. Strange, 1S9. Dougt. 377. 730. , 

CMio. ELIZ. PART 11* O o being 



538 

GtTftflTON 

agaimft 

Cro. Jac. 343, 



Casi 73* 



Brrort amrnd« 
able b) the Ita 
tutes of amend, 
ment (a) and 
jeofail {k). 

Cro. Jac. 341, 
Hob. 6. 



4 



Michaelmas Temi, 39. Eliz. In C. S. 

being indebted in 18I. the defendant promifed to pay it. The de- 
fend^t pleaded nonajfumpfit^ an4 it was found againft him, and feve* 
ral dSnages allcfled ; but entire cofts and judgment accordingly for 
the plaintiff. Error thereof was brought ; and held, that the confi- 
dcration upon the fecond affumpjit was not fufficicnt ; but for the 
firfl, and for the entire cofis, the judgment was affirmed : and for 
the fecond ajfumfjit^ it was reverfcd. 

Bedell agatnft Stanborough. 

Eafttr Term, 38. Elix. Roll 480. 

L^JECTIONE FIRM^ of a leafe at Denham of lands in the 
^ parifh de Denbam pradieia. After not guilty plea^d, and if- 
fue, a vemre facias was awarded de vicineio de Denham ; and error 
therefore affigned, Becaufe the venire facias ought to have been de 
farocbiade Denham^ where the land lies. Scd mn allocatur ; ibr in 
regard it is deparochia de Denham pradiila^ the pariiK and village are 
intended to extend, and to be all one, and no more. («) — Secondly, 
Becaufe that an habeas cortora juratorum was awarded upon the roll ; 
but a dijiringas iflued. ^ed non allocatur ; for it is a nufconveyance 
of the procefs, arid it is helped by the ftatute (A). Wherefore it was 
affirmed. And Trinity Term, 40. Eliz. Roll 243. betwixt MorUj 
and Clapham^ it was fo adjudged. 



(a) See 2 1. Jac. i 
c. iS. Ante, 260. 
(^) See 3 a. Hen. 8. 

m 



c. 1 3; 16. & 17. Car. 2.. c. 8, 
c. 30. and 4. U 5. Anne, c. t6. 



4. & 5. Ann. c. 1 6. and s4^Geo. x« 
I. Com. Dig. 316, 



Cats 74* 

An affumpjit 



^ Dixon againft Adams. 

A SSUMPSIT.* For that 7. S. and 7. D. Were obliged to Mam 
will not lie ont "^ ^ in 40I. and thereupon he fued j, S. in the queen's bench, in 
promife to the ^hich fuit Dixon became bail, Jdams recovered, and upon zfcire 
theboBcTon"^ /tf rw J againft /)/jf^« the bail, had judgment againft him; andfhc,* 
which judgment without Other DTOcefs, paid the condemnation, and Adar^ in confi- 
\% obtained, in deratione inde anumed to Dixon to deliver unto him the principal 
confideration of obligation, and a letter of attorney to fue it againft J. D, : and 
the dVb?^ ****** for non performance hereof the a£tion was brought i and upon 
* non ajfumpfit pleaded, and found for the plaintiff, he had judgment : 

AmIIIII *^^ thereupon error brought, Becaufe it was not a fufficient con- 
Hob. 4. ' iideration. — And fo it was held by the whole Court ; for Dixon 
J. Sid. 31. 2x3. had not done any aft whereto the law would not have compelled 
i.Roti.Abr. 17. jji0j^ Wherefore the judgment w?^s reverfcd. 

WUbo, 115. . Cowp, 128. 



Hilary 



539 

Hilary Term, 

39. liliz. In the Queen's Bench. 

Sir John Popham, Knt. Chief Jujiice. 

Sir Francis Gawdy, Knt. ^ 

Edward Fenner, Efq. \ Jujliccs, .^ 

John Clench^ E/j. J 

Sir Edward Coke, Attorney General. 

Sir Thomas Fleming, Solicitor General. 



Greningham againjl Ewer. P^,, ^^ 

Vide Ante, page 396. 

THIS CASE was nowmovcdagain. — ^And G awdYjClench, a bond condu 
and Fenner held, that the bar was ^ood ; for the defen- tionedtodoone 
dant hatla eleftion to deliver tlic obligations, or to make ***^"8 •^•nothw 
an acquituncc, as the plaintiff (hall devife : then if the plaintiff ^[{j^ ^^^ 
will not devife the acquittance, he is difchargcd of the making before a partU 
thercof by the default of the plaintiff, and by confequence from caiar day it 
the delivery of the obligation ; for he having eleftion to do the void, i- ihcoWl- 
onc thing or the other, it is not reafonthat the obligee lhould5J^^JJ.^^"j]*^ 
compel him to oerform the one only. — Popham. 1/ it were an fo,«^i^day, 
abfolutc disjunftive condition, that the obligor fhould do the one Ante, 396.' 
thing or the other, then the eleftion (hould be to the obligor abfo- Po^- 78S. 
lutcly ; and if the obligee difables him to perform the one part, the i. RolL Abr. 
Jaw fliaHdifcharge him of the other : but it* is here but a condi- 447- 
tional eleftion, viz, if the obligee will devife an acquittance ; and J*^^^'^^ 
if he will not devife it, he is abfolutely obliged to deliver the obli- iiMod/igi-^oA. 
gafions : and if the condition had been that he (hould deliver the 1! Wood's Con. 
obligations, or (hould make an acquittance before Michaelmas^ \i%ou 
the plaintiff would require it, it had been clear that he ought to ^^"5** »5f »^» 
deliver the obligation, unlefs the obligee required an acquittance. 
So here. — GAWi>y. There is great difference betwixt the cafes. 
<— Wherefore it was adjudged for tlie defendant. 

The Archbifhop of Canterbury againft Kemp. Caii %. 

A CTION of trover for divers trees at D. in the county of i),,-„/«rii/i,i 
^ Surrey. The defendant pleads, that cra^nMary was feifed in pr^priA is not 
fee of the manor of D. in th^ county of Suffix^ where thofe trees « g<»<*repiica- 
were growing, and granted it to the defendant in tail, whereby he l'^" ^ ^^^ 
was feifed thereof; and that J. S. cut the faid tree^, and granted thldSSdMT* 
them to the plaintiff, who loft them ; and the defendant found, and daiins an inte* 
converted them, &c. The plaintiff replies de injuria fua propridy reft in the free. 
Wr. And thereupon iffue was joined. — Coke moved, that the re- **o^**»™^^« 
plication was ill ; for Je injuria fud propria is not any plea where pS^ it*, 
the defendant makes juftification by claiming an intereft in the 8.co. 67.a, 
s.Saiind«ft95. i.Lev.jo;. a.Leon.Si. Crcjac. 599. Ydv. 15S. Ld. Ra}nn. 700. 

O o a freehold 



S40 Hilary Term, 39. Eliz. In B. R. 

At cHiiiHwof freehold to himfelf, as 16. Edw. 4. pi: 4. 44. Edw. 3. pi. 18. (sf 
^^V«;«>f"*^ 14. Hen. 4. />/. 32. is, upon the fame realbn ; but where one 
KiHt^ claims not any intereft, but juftifics by command or authority 
S. Co. 67. au derived from another, it is otherwife. — And of that opinion was 
Ante, 14. THE WHOLE CouRT. Whcreforc A REPLEADER was avarded. 

Casi 3. Holcomb againjl Rawlyns. 

EafitrTertJiy ^S. El/sc. Roll j^oi. 
If ^.diffeifcff. npRESPASS, for his clofe breaking, ift Augujl, 31. Eliz. with a 
Md^/^tcr. continuando unto the 36. of £//z. The defendant pleaded, 

vTards enters* ^^^^ '^^S ^i"^^ bcforc, &c. Thomas Clerk was feifed ii^/ee, and let 
uponC. ^.may unto him for years, &c. and gives colour to the plamtifi^ The 
maintain trcf- plaintiff replies, that he himfelf was feifed, until by the faid Tho- 
pafs againft c: ^^^ ^^^^.^ dlflelfcd, who let it to the defendant, ;^ro«/ in harva \ ajid 
Irhis ftra'Il^'f- **^ ^^^^"^ here-entered, and the trefpafs mesne bcjwixt, &c. And 
fcffion. thereupon the defendant demurred. 

Port. 546. Tanfield, for the defendant^ moved, that forafmuch as it ap- 

Moor 4.61. pears tliat the defendant is \i\ by title (viz, by a leafe from the dif- 
Gim.'Tcn,* 47. feifor), the diflcifee after his re-entry fhaM not punifh him for his 
a. Roll. 554. occupying tlie land ; for he never was a trcfpaner unto him : and« 
1 1 . Co. 51. in proof thereof, relied upon 34. Hen, 6, pi, 30. 37. Hen. 6. pi. 35. 

"^Vn J^o 2. Edw. 4. pi. 17. 13. Hen. 7. pi, IC. 

vide Bull. N. P. -^ r^ ^ r^ "^ ji- ^ i-tt 

g^^ But Pop^AM, Gawdy, and tenner, e contra. For by the rc- 

sz. Co. 51. entry of the diflcifee he is remitted to his firft poffeilion, and as * 
Hctl. 66. if he never had been out of poilcffion ; and then all who occupied 

'• 8«"« 2x. in the mean time, by what title foever thrfy come in, fhall anlwer 
jo8^°°^ * °"' ^^^® ^"^ ^^^ ^^^'^ time: as if a difleifor had been difleifed by ano- 
Oniow'iN. P. ther, the firft diflcifee re-enters, he fhall in trefpafs punifti the laft 
83. diflTeifor ; for otherwife k would be mifchicvous unto him ; for 

after his re-entry he fhall have no remedy for the mefne profits. 
And it is not to be doubted but that the difTcifce after his re-entry 
Ihall punifh the fccond difleifor, and the fervant of the firft diflei- 
for, who occupied under his mailer ; which was not denied by any: 
and by the fame reafon he fhall punifh him who comes in by title ; 
for that is now as a trefpafs done unto himfelf. Wherefore, &c. 
Clench e contra. Becaufc the tort was not done by him who 
comes in by title, but by another ; and the difltiior who made the 
leafe and received the rent is only punifhable, and not the other. 
Wherefore, &c. — But notwithftanding, for the other reafons, it 
was adjudged for the plaintiff. 33. Hen. 6. pi. 46. 



CAtt4* 



Go ffagainfi By by, and Others. 



"Where the pi in- A PPEAL of murder againft divers: one as principal, and the reft 
ci aJ is found -Tx ^ acceflx^rics ; fome before the hSt ; the other as acccfib- 
S"!i I/rr Tb- ^^^^ after. The principal was found guilty of manslaughter onlv. 
accefiTorics *e/3r# And it was now moved, that the acccflbries fhou'd bedifchargcd ; 
tfc«/,i/U fhaii be for there is not any appeal againft them of manflaughter: and they 
dfdurgcd. cannot he arraigned as acccflbries to the murder, the principal being 
Moor, 461. acquitted. But all theCouRT held, that as to the accefTories bcforc 
t^Rdl R^p.46c. ^^^ ^^^' tbcy ought to be difcharged ; for the verdift for the prin- 
j.Hai,45c.6i5. cipal hath found, that tl^rc was not any precedent intent to kill; but 

S. Iiav,k.44}, for 



Hilary Term, 39. EHz. In B. R. ♦ 54^ 

for the acccflbries after, they (hould anfwer : for every appeal and . 'Jf ^,'!J 
declaration therein includes as well homicide as murder, ^hich BY^*Y%d 
the conunon plea proves, viz. that he fliould anfwer to the felony othert. 
> and murder not guilty (a), 

fa) Se: I. Ann. c. 9. 3. Inft. 55. Fofler, 363. 2. Hawk. 453, 

It was then moved, Whether they fhould be tried by one where a vemrg 
vmre facias or feverally? And all the clerks faid, that the courfe may be joint ot 
was to try tliem by feveral venires in an appeal : but upon an in- fcvcrai. 
didment they ufed to try divers together. ^t^iXhl^^^^^ 

It was afterwards moved, that the principal, after conyift ion, had A«ccabriCi«//» 
his clergy, and was never attainted \ and therefore the acceffory is 'A'>4» fliallbt 
to be dfichsu-gcd. — And of that opinion was the whole Court, <i«<'chargcd 
that if tlie principal had his clergy or pardon before his judgment^ wincitr'of a!e 
although it werczhcr convi^ion, theacceuory fhall be difcharged {b) : prifoncr is ftop- 
but if he prays'his clergy after he hath had his judgment, (as he ped byclergy or 
well may) or if he be pardoned, yet the acceffory IhaU be arraigned, pardon. 
—And afterwards CoK^, Attorney General^ coming into court, was 
demanded what he could fay why the accedbries ihould not be dif- 
charged. And he anfwcred that he had conlidered thereof, and 
conceived, that tlie difference taken was good. Whereupon they 
were difcharged. 3. Hen. T* pi. 1. Vide 4. Co. 43. . 

ih) But now by t. Ann. c. 9. on ro«- attainted, notwith (landing the prlr^pal 

v«9i«i of any principal felon, an acceiTory, fliall be admitted to clergy, p^rdojfeo, or 

ether before or after the fad, may be pro- otherwife delivered before hi« attainderr 

cteded agalnA a« if the princlifal had been See a. Hawk. 453. 

Vanfpike againji Cleyfon. Cas« 5. 

A CTION for words. And declaresj tV^hereas he was merchant, Words are not 
-^ that the defendant, to difcredit him, faid to one Dudley, \^'''^^^^^. 
" Doth Vanfpike (the plaintiff) owe you any money." To whom way o7 good 
he faid, that he did. He then faid to Dudley, " You had beft call counfel. 
" for it; take heed how you truft him.'* And it was thereupon ,, r^i^ Ab.67. 
demurred. Andadjudgedifor the defendant ; for it is not any flan- Bull. N. P. «• * 
der to the plaintiff, but good counfel to Dudley. , 1. Term. Rep. 

no. 

Grymes againft Blofield. Cais 6. 

Trinity Temiy 36. Eli%. Roll 844. 

T\EBT upon an obligation of twenty pounds. The defendant Satiifaflion U 
^^ pleads, that J. S. furrendered a copyhold tenement to the ufe no plea if it 
of the plaintiff in fatisfaftion of that twenty pounds, which the J^^***^ ^"^ ■ 
plaintiff accepted. It was thereupon demurred. — Popham and "^^' 
Gawdy held it to be no plea ; for J. S. is a mere llranger, and in'*'^^^-^*|**7«» 
no fort privy to the condition of the obligation ; and therefore '* **"** *'^* 
fatisfaftion given by him is not goorf. Vide 36. Hen. 6." Barr,** 
166. 7. Hen. A'pl' 31.— Afterwards, in Eafler Term, 31. Eliz. by 
PoPHAM and CfLENCH, cateris Jufiiciariis abfentibus^ it was ad- 
judged for the plaintiff. 



O o 3 Bade 



54^ •» Hilary Terra, 39. Eliz. In B. R. 

^^" 7r. Bade againft Starkey. 

Trinity Term, 38. Elix. Roll 143. 
An infam td- TERROR of a judgment in debt in the common pleas. The er- 
miniftraior may Hj ^or afligned was, Bccaufc the plaintiff fues by attorney, where 
An^ 404!"*^ ^^ ^^ ^^ infant, and ought to fue by guardian. — But becaufc the 
Po(l/378. a£t]on was brought by hmi as adminiftrator, fo that he fued in 
i« Re. Ab.iSS. ^'^^^'^ ^^'^'^ infancy is no impedinient unto him, no more than 
». Saund.Mi. Outlawry; and therefore he might well fue by attorney. And it 
Pop. 130. was thereupon adjudged for the defendant, that thcfirft judgment 
Cro.jac.44«- fliould be affirmed ia). 

I. Mod. 47. 298. ^ ' 

). B«](l. i8o. T. Vent. toz. i. Sid. 449. i. Ler. 299. Ydv. 130. Carth. 'iii. Salk. 205. 

4* Mod. 7. Stia. 784. 5. Com, Dig. 198. , 

(«) Vide Cro. Car. 441. where the authority of tbii cafe is impeached. 

Case 8. . Clarencicux alias Brook againft Dethick alias Garter.^ 

Carter Kinj at A CTION for words. The defendant pleads, that the queen, 

Arms is pared "^^ by her letters "patents, dated, &c. created him King at 

of the name; Arms, ct nomtn ei impofuit^ quid nuncupetur Garter, principalis 

and thepoflcflor ^g^ armorum ; and that he Ihould fue and be fued by that name : 

filed by^tWs ^^^ becaufe he was not hamed according to his creation, he dc- 

titie. mands judgment, Ji aitio^ lie. And it was thereupon demurred. 

Ante, 224. ■— Gawdy andPoPHAM held, that lie was named well enough for 

Owen, 6z. this fiiit againft him as a private perfon, and therefore it fufficeth 

Vide I. Com. to name him by his proper name. But if he had been fued orwcre 

^*L^* ^Is'' ^ ^"^ ^^^ ^^y thing concerning his office, it fhould be otherwife. 

a!Hawk.*328. And Gawdy faid, although it were otherwife ruled here upon an 

. indiftment, yet it was always againft his opinion.— Biit Fenner 

faid, that it is a name of dignity, and parcel pf his name, as 

Knighty and therefore ought to be named by it in every fuit ; 

otherwife it fliould abate. — Et adjourmtur. 



Cass 9» 



Armiger againft Holland. 



The king may DROHIBITION. The cafe was, that Doeior Maj^ being parfon 
grant a difpcn- ^ of Northcreak in Norfolk, was created a bifliop ; and the queen 
fation to hold a |)y i^er letters patents liccnfed,^im to hold that parfonage in com- 
muL^Vitho^xx *^^^^^* And afterwards the queen prefented Holland thereto, 
ri!ca1-dibi(hop} who was indufted and fued for tithes.^ And upon this matter a 
for the 15. Hw. prohibition was brought.— CoiCE prayed a confultation ; for the 
S. c. %i, does difpenfation by die queen only is not fufficient : for the ^5. Hen. 
not renrain his g. c. 21. appoints howa difpenfation fhall be granted by thearch- 
•uthTrity. ^ biftiop of Canterbury y and confirmed und^r the great feal ; and the 
Poft. 601! ftatute hath words in the negative, that it ftiall not be granted in 
•a.Ro.Ab.133. any other manner.— Godfrey. This ftatute only transfers the 
359. authority of the billiop of Rome to the archbifliop : but the king, 

Hob. I4S- h6' by his prerogative at the common law, might have granted fuch a 
'•*j^'*''^'^ difpenfation.; which is not taken away by this ftatute. — GawdV 
liBLCoL-'isz. ^"^ Fenner held, that the king had this prerogative at the com- 
mon law ; for the benefice is made void by the queen's aft ; and 
Ihc may well difpenfc with her own aft : then, although there be 
general negative words in the ftatute, the queen Ihall never be re- 
ftrained by them, unlcfs Ihc be cxprcflly named ; and this prero- 
gative 



Hflary Term, 35. £lij&. In B. R. 543 

gativc the ftatnte never intended to take away from the queen.— AmicEa « 
ftit Gawdy faid, he doubted whether a prefcntmcnt upon fuch jj 'f *'^^ 
an avoidance appertained to the queen by her prerogative, or to *»*-''^»'«*« 
the right patron.— Coke. I can (hew vou the refoiution of all Ame, 527. 
the Joftices, that the queen in this cafe mall prcfent.— Popham. 
So is the common experience at this day. Fide 6. Eliz. aa8. — Et 
sJjottrnatur, 

Hargreave again/} Arden* ^ ' • Cah io» 

Trinitj l>rm, 38. £liz. Roil 1 1 1^. • 

TERROR of a judgment in the common pleas in a replevin upon a variance in ^tm 
^^ noni>iuit. The error afligned was, Becaufe thatthe^Ai/ii/in the name of the 
county, and the recordare whereby it was removed, was inter Arden Plaintiff in r#* 
W Hargreave: but the declaration, and all the proceedings, and ^^^^J^ 
judgment, was inter Ardern ^ Hargreave, And for Ais variance the caufeU 
the error was afligned ; for that proceeding was without warrant, removed, 
and without original upon the matter.— But it was held by the, Ante, 170. 
Justices [abfente Popham); that this variance is not material; a. Saund. 39* 
for ncnrefert what the plaint was in the county ; for it is dctermin- ^^'^^ »7S. 
ed when the record is once removed, and the party declares in ban^ 766***^ ^^*' * 
c9. Wherefore, without any great argument, the judgment was ,, Term Rep. 
aflBrmcd." Kide^. Hen. 6. pL 2. 21. Edw. 4. jf/.»6. 783. 

Durming againft Ketle. Casi h, 

Micbaelmat Term, 38. ^ 39. £//«. Roll /^g* 

A FTER verdift it was moved in arreft of judgment, that the a judicial writ - 

venire facias was Ficccomitibus London. Jalutem : Pracipimus 4}r6tTed to b^ 
iihi^ Wf. where it fliould be vobis ; and therefore ill. — But becaufe-«mcnded. 
it was a judicial writ, it was ordered to be amended : and the plain- ^^^^ *03« 
tiff had judgment- '* ^®- Ab. 200. 

^ ^ o . ^- Com. Dig. 

317. Cowp. 407. S4U I . Term Rep. 781, 

Gower againft Capper. Cahu, 

Michaelmaj Term, 38. bf ^g. £liz. Roll m. 

A SSUMPSIT. And declares, Whereas the defendant was in- j4fump/U will 
**- debted unto him by bill in 20 1. the defendant, in confide- l»c on mtttvU 
ration the plaintiff affumed unto him to deliver him the faid bill, P'^ifc*- 
affuracd to procure two fuflicient fureties to be bound to the plain- ^ 7^^* 
tiff for the payment of the faid 20I. ; and alledgeth in faft, that he «. Ro. Ab. %^ 
delivered the faid bill to the defendant ; and that he, intending to 3i7- 
deceive the plaintiff, produced two fureties to be bound that were ^^^^^m^t* 
of no value. The defendant pleads, that the plaintiff had not de^ Mod. Rep;Vd4, 
livercd unto him the faid bill. And it was thereupon demurred. — Hob. 88. 
And, without argument, adjudged for the plaintiff: f or the alle dg- ^^' 88. 19$* 
ing that h y had d<^livf rrd Xht, hil l w a.s hutiar^lufage i jfor the cop- 
Uderati9n w an th^ p^ftf^i^^ »0 deliycr it ; and therefore he needed 
n^f ^ov^ ap#>/^jT^/l ^lipt lip jjpUvered^Jf. But a pro mi fe a gai nft a 
promifeis a fyffiriftnf grri^^S^S^Salaion. And althou gh it be 
airgj |g ^ th p t^K ^fi f<^^?T^d ruTfctifiS^u^yiLt. wlicn it .is allcdged tliat tliey 
arc infufficient (which is allowed by tlie defendant's £lea?anddc- 
ffmrm) it IS all SScIa&jriic iiFverirad^fpuiiirurcucs. Wherefo re 
it was adiodged for the plaintiff. « 



544 Hilary Term, 39. Eliz. In B. R. • 

• ^^"'^ • WoK againft Mtggs. 

Trinity Term, 37. £//fe. Roll 1063. • 

Tbejury cahoot T7RROR of a judgment in the common pleas. The error affigrt- 
giw more da- ed was, Becaufe the plaintiff declares Ih debt upon an obliga- 
mages than are tion of 1 61. to his damage of 10 1. And upon non eft faeium 
laid in the de- pleaded, the jury fqnnd damages to 7L and 40s. coils; and the 
tfMf^^Couit may Court increafed the cofts 4I. So he had judgment to recover his 
Incrcafc them debt, damages, and cofts to 13I. which is mofe than in his count, 
beyond the fom ^^Sed non aiiochtur For although the jury cannot give more da- 
^****- mages than the plaintiiF counts, jret the Court may increafe 

Poft. 568. 866. ^j^g^ ^3 ^j^gy pleale. Wherefore the judgment was affirmed. Fide 

lo^Co"^ n?^" ^3' ^^"' ''' ^'' ^^* ^' ^'^'^ ^' ^^' ^' ^^^' ^5^' 

Cro. Jac. 69. ft97* Owen, 45. Yelv. 45. i. Bu]ft. 49. Dough 376. 73a. 75x. a. Burr. 906, 

4* Bnrr. 2226. i< Term Rep. 3S8. a. Bi. Rep. 1300. 

Case 14^ • Gadlcy againfl Whitecot. 

Michaelmas Term, 38. ^ 59. Elez, Roll 464. 

Debt wiu not TTRROR of a judgment in Ludlow. For that tlic plaintiff was 

lie in an infe- fued there iTi debt upon the 5. £/fz. c. 4, f. 39. fcr ufing a 

rior court on trade, not being an apprentice to that occupation, and there tcco^ 

•5. £/i».c,4, vered. The error afligned was, Becaufe it is enafted by the 18. 

^^9' Eliz. c. 5. that fuits upon penal ftatutes (hall be by original or in- 

** ^^' formation : and ft rs here by plaint.— And it was therefore rc- 

i.fiaund.74. verfed. 

Cro. Jac, 644* ' 

Moor, 41X. 600. Stiles, 383. ?. Hawk. 380. Dong]. 244. But it it now determined that the quar- 

ter feiTion may proceed by Infcrmation on this ftatute. Cowp. 369. 

Cai* i5» Corus againji — — — . 

Breach of cove. T^^^'^ upon an obligation conditioned for the performance of 

nant. ^^ Covenants. The breach afligned was, that the defendant leffor 

Poft. 675. covenanted that it ihall be lawful for the plaintiff, being Icflcc, 

Cro. Jac. 383. quietly to enjoy the land ; and that the leffor himfelf oufted him. 

I. Ro, Ab.427. And it was thereupon demurred ; for this illegal oufter is no breach 

"^c ^^ D* ^^ *^ covenant. — But, without argument, the plaintiff had judg- 

' * ment. 
453* 
c. Com. Dig. 44* i. Wood Con. 406. Cowp.665. DougU43» f. Term Rep. 671. 

Ca$i 16, Afcue againJl HoUingworth. 

A joint ftatote* T^HE cafe was now moved again. — And all the Jitstices rc- 
Aaplc void at a folved, that debt was well brought upon it as upon an obliga- 
ffBcosnicance tion ; becaufc it never had any effeft as a ftatutc : as alfo, that the 
""^bond**^ ^" declaration againft one of the obligors only was good enough, al- 
Anteiiei46i. ^^^g^^ ^^^ words of the obligation arc joint ; becaufe it doth not 
^^ ^^' * appear that the other two did ever feal it, or that they are yet alive »• 
which ought to be Ihewn by the defendant, if he will have the ad- 
vantage ; for otherwife the Court will not intend it, 
Appesrance it^ But now another error was afligned : Becaufe the record is, that 
good without (i^e plaintiff appeared per attomatumfuum^ and he gives him not any 
atto '°^ ^thc ^^^^ i ^^^ ^^^ record was viewed, which was, {[uod querens obtulitji 
leooiS^f he be per attornatum fuum^ without naming any attorney. But when the 
ramed'inthe defendant appeared, he then declared againft him per J, S. attoma- 
di JaratioD. tum fuumj-^hvid. fo it was faid was all the courfe in the common 
Arte, 59. 75« ^^^^ ^ j^ itYTzz fo Certified to the Court by the prothonotarics, that 

Dcugl. 115. 



* \ 



• HUaryTerm, 39'El'z. InB. R. , s*S 

tiidr conrfe was in this manner. Wherefore the judgment ims Atcvx 
iSnncd. 'f^i^ . 

% WOKTH« 

Dodington's Cafe. Caih/. 

INFORMATION in the exchequer, in nature of an account, ^l^^^^^^^ 
^ was brought againft Dodin^ton^ executor of Sir fValter Mildmay^ a p^ribn who 
ftippofing, 3iat Sir Walter Afildmay had received money of the has annually 
queen's amounting to 1500L Upon a fpecial verdiA the cafe was, receivtti a (alary 
That Sir Walter Mildmaj had received annually, out of the. exche- ^^^^^ ^ 
qucr 50L as a fee f#r his diet, for thirty years together, which was vi[JiJc"of a^ 
paid him by the command of the lord treafurer, who had authority ^rit^yi^/, but 
by privy feal.to make allowance and payment of all fees and dues, which faiaiy 
Bu^ in truth, thefe were not any due fees : and, .Whether his exe- waM>otic|^y 
cutor fliall be charged with thefe fums fo received .«* was the quef- .Jlho^ghTrilcrw 
tion. — ^Aftcr trgument it was adjudged, that he fhould be charged ^tAhythtkrd 
for it was held, that this payment of the money, bv the appoint- trsnfiirtr^ (hall 
mcnt of the lord treafurer, was not allowable : tor tlie privy feal is bcUaWctoan 
not fisffici^nt authority to difpofe of the queen's treafure, unlefs if^^^^ ^' 
where it is d|kie ; and, he difpofing of it ptherwife, it is out of his monies recci^ 
authority. — Secondly, it was held, that this money delivered by j^^^ 
the anthority of the lord treafurer, who is quajt a judicial officer, Godb!295i 
and it was quafiz judicial aft by him, yet it Ihall not bind the 2. Ro. Ab. 161. 
queen ; for it was without his authority, and without warrant, to Skin. 656. 
make allowance thereof, not being due ; and it is at his peril who ^]^^} ^ 
receives it, or demands allowance thereof. — It was alfo objefted, that cafe, in Hilary 
money could not be known whether it were die tjueen's money ; Term, 4-j»c.i, 
and it would be hard to charge him with the receipt thereof: as if ii.Co.S9,t» 
one fells lands, or any other thing bonafide^ to one of the queen's 93» 
officers, who pays unto him the queen's money, it would be hard to 
make him accountable for that money fo received ; for he cannot 
know it to be the queen^s money.— But it was held here, that in 
rec;ard he received it out of the exchequer by colour of a fee where 
it was not due, and by colour of a warrant where it was not fuffi- 
cicnt, he could not be mifconufant that they were the queen's 
money, and (hall be charged with them. So m every other cafe 
where he receives the queen's money, knowing it to be the queen's 
money, he is chargeable : but if he received it in payment, not 
knowing it was her money, and whereof by intaidment he had not 
any conufance, it is otherwife. And for thefe reafons it was ad- 
JTidgcd for the queen againft the defendant. And although he 
were executor, he Ihould anfwer for it as a debt from the tefta- 
tor {a). 

(•) By 8. A 9. wm. 3. c. iS, r. 6. none or authority from the king under the great 

0f t&e fitooies in the receipt of the exchequer y«a/, or^by virtue of fome fufiicient auchori- 

Aa0be deemed t5' be lawfully Ufued or ty under /^r^rrt/jr/ea/, or purfuant to fome- 

^ kit bj or in puiioaoce of IbtYie $ranl a^ of parliainent. 

Hilary 



^* Hflary Term^ 

39. EHz. In the Common Picas. 
&> Edmund Anderfon, Knt. Chief Juftice. 
Thomas Walmfley, Efq. ^ 
Francis Beaumond, Efq. I Jujlices. 
Thomas Owen, Efq. J 

Sir Edward Coke, Knt. Attorney General. 
SirT. Fleming, KnL Solicitor Gmeral. 

Caii 1., Matthewfon againft Lydiate# 

Jntet Page 408. anJ 470. 

B^kingoffthe f | ^HE Cafe was now moved again. — And all the Court 
leal of one joint I agreed, that the breaking off the feal of one of the obligors 
and/«tr#r-iobU- X (hall not avoid the deed, but againft him only ; for the deed 
wW^hlldled* '^ Several by every of them, and a releafe to the one AjI^Fnot ftrvc 
i^aina the ^^^ Other. But if he razed the deed in any claufe which concerns 
others. them ally or in the date, that ihould have avoided thedeed as to all. 

Afite^ 408.470. But otherwife the deed is intended feveral to every of thcm. 
5. Co. »3. Wherefore the pulling off the feal from one is no difcharge againft 
ti. Co. i8» the otlier. And afterwards it was adjudged accordingly for the 
au Ley. aao. plaintiff, 
s. Show. «8. '^ 
March. 125. ^ Salk. 574. BuQ. N. P. 268. Cowp. 600. 

Caiex. Lx)velace againft Reynolds. 

EafierTirm, ^j.Elix. Rellyz^. 

If the jury find 'TRESPASS de clauh fraeio. The defendant prefcribcs to hite 
the defendant ^ common. On iffue thereupon, the jury found, that the dcfen- 
bas common by j^^^ j^ad common there by prelcription, prouty l^c, paying for it 
Ili^ h**!*!* ^^^^y y^^^ * penny to the plaintiff : and, Whether this vcrdift 



prefcribcd, "^^^^ found for the plaintiff or defendant ? was the qucftion.— 
•• paying for It Lewkner moved, that it was found 'for the plaintiff; for the 
•* every year prefcription ought to be allcdged entirely as it is ; and this paying 
•I ^* u^^y'' of the penny is part of the prefcription ; for otherwife the plain- 
ihcTerdta u ' tiff hath not any remedy for it : wherefore he hath failed of this 
with the pkdn- prefcription, not alledging it. — SpurlinO and Harries e contra. 
tiff. r or he hath alledged as much of the prefcription as ferves for him ; 

An»> 4«>5* 4«5. and the non-payment of the penny (hall be rtiewed on the other 
5.C0. 78. b. part ; and the not alledging thereof is not material. And fo it 
7. Co. XI. a. hath been adjudged in the queen's bench, Gr^ary v. Fktchery anie^ 
%rS*^ll\x. 405. And for his rent, the other hath his remedy by diftrefs ; as 
Boll. N. p. '59. 26. Hen. 8. pL 5. Wherefore, &c.-— Anderson. This is not 
OnOow*! N.p. any rent : for rent cannot be refcrved out of a common or other 
58' thmg which is not in demefne. But here. Whether the paying 

1. Burr. 441. ij^jg penny be a condition precedent or fubfequent ? is all the 
DoTriieJi. doubt. — Walmsley. It cannot be called a rent; for tliat is 
only out of a thing whereon an erilry may be made, unlefs out of 
memalty ; as 1. Hen. 4. is ; and that is for the poffibility of the 
efcheat; and a rent-charge cannot be granted out of a mefnalty. 
But altliough it be not a rent, yet a diftrefs may be taken for it ; 

as 



Hilary Term, 39. E!iz. . In C. B. S*f 

zii. Him. 8. is, becaufe the commoner hath a benefit thereby, Uv»i^c« 
aad by iatendment it began with the common by agreement of u^^*^^^ 
rhc parties, and it will be hard to prove it to be a condition ; and 
a it be a condition it is fubfcquent, and need not be (hewn by 
the defendant, no^mofe than in^he cafe adjudged in this court of 
Piutrelj where an annuity was granted prs confilio impendendo^ it 

' tos adjudged, that he needed not ihew that he gave counfel. — 
Beaumond. It ^ a condition, but fubfequent, and therefore it 
is fiot requifite that tlie defendant fhould plead it ; and therefore 
he held, that the vcrdift was found for the defendant.— £/ ad* ^« 

jsanuttur (a).- 

(«) Tikit cafe was moved again inEaderTerm, and all titk Covar were tmasu. 
Boodj of opinaoo, Uut the verdia waa with ik flam$if. — Poft. 563. 

Myles againft Willoughby. Ca«i j. 

D EPLEVIN. The cafe was, One having a rcverCon in fee if exeCTton bj 
•^^ expe£|ant upon an eftate for life, dcvifed a rent of 4I. to one s^- ^«»«8. 
for fife : the tenant in fee dies ; and after fevcn years incurred, ^* ^Z* *f°^i^ 
the dcvifee made his executors, and died. The executor dif- to^^^^j^jj, 
trained, and avows for that rent. And it was thereupon demur- they muft ihew 
red in law, becaufe he doth not aver that the land remains ifi the ijnd in the 
the feifin of the tenant, who ought to pay it, or in the hands of /"^* ^^ ^. 
fomc other who claims by him by purchafe or defcent, accord- IS^fe ^h^'cSni 
ing to the ftatute of 32. Hen. 8. c. 37. — And Anderson and under him, 
Walmslev held it to be a material exception ; for he ought to Ante, 33a. 
have purfued the words of the ftatute, which gives him the re- Perk, 627. 
mcdy, although he needed not fliew how he was feif<^^ for that »• J°^«*» ^ 
would be miichi^vous unto him, being a ftranger, who cannot ^^'^\ '^*' 
know it ; but it fufficeth to fhcw it generally, according to the f^ajtairau 17J. 
words of the ftatute. — Walmsley laid, there was another cx- 
ccptioQ, Becaufe he did not aver that the arrearages incurred af- 
ter the death of the tenant for life : for if he in reverfion upon an 
eftate for life grants a rent-charge, it fhall not begin until after 
tbe death of the tenant for life : and although arrearages incur in 
the life of the tenant for life, they be not due. ^od Andersoh . 
cQnceJftt, — But in the principal caie, becaufe it appeared upon view 
of the record that it was laid, that the heir of the devifee was 
ftifcd in fee, et adhuc feijttus extftit^ it was held good enough. 
Wherefore it was adjudged for the avowant. 
See 1 1. Geo. a. c. 19. f. ^^, 

Bowlfton againft Hardy. CAIE4. 

ACTION UPON THE CASE. Whereas he was feifed of An «6Woq for* 
^ certain lands in fee, and the defendant was feifed of other ""^»»?ce wm 

hnds adjoining, the defendant had made two coney -burrows in I!J![„*1?^k"^* 
u:- I J 1- • • 111 • • 1 ,-'.,. - , man who has JO 

nw lands adjommg, and had put comes m them, which increafed adjoining w?*. 
to a great number, and went into the plaintiff's land, and de- rcn, for dam^gt 
ftfoycdhis corn, and made it barren, whercbyhe l-6ft die profits of ^°* *»y cooipj« 
^ land, and therefore brought the aAion, The defendant pleads* P*>^' ^76. . 
iliatthe plaintiff's land was late parcel of the manor of D. and that ^g^'^^*'*^^^* 
^Wn Mary^ being feifed of that manor, granted it to Sir PTiUiam \^^^<ii^^ 
i.&oB.A^.^5« Cro.Jac 195*1*9. i. Burr, 259.*$^, »68, x.Bac Abr. 6i3*6i5. i.wUf. 51. 



5*8, Hilary Term, 39, Eliz. In C. B. 

BowLtT|)ii ]^ff^^ jmj granted unto him to have warren in the faid manor, 
amT T *^^ ^^^^ ^^ plaintifTs lands was conveyed unto him, and that 
Shr PViUiam Peto bargained and fold the manor to the defendant, 
and all warrens, &c. thereto appertaining, or accepted and reputed 
as part of that manor, whereby he juftiiies. And it was here- 
upon demurred.— All the Justices, without argument, re- 
folved that the plea was ill ; for he hath ihewn a warren in grofs 
an the patentee, which is not conveyed unto him by the bargain 
and fale ; for a warren is not parcel nor anv member of a manor ; 
• ^ but it may be appertaining, but that is oy prefcription. But, 
Whether an a£tion upon the cafe lay upon this matter ? was the 
only queftion. — Anderson. The aftion lies not ; for although 
one hath conies in his land, he hath not any property in them, 

Cfo. Jac. 195. be :aiffe they be fent natune. And to have an a£lion againft one 

ft.Bae.Abr.614. for damage done by favage and wild creatures, wherein he hatli 
not any intereft, and they cannot be known whether they come 
out of his land, is unreafonable : he who hath the damage there- 
by may well kill them, and they may be faid to be his conies 
when they are upon his lands (a). And if other men have otlwr 
warrens adjoining, againft whom Ihall the a&ion be brought ? 

PoA. 876» Truly, againft none of them. — Walmsley accord. For the pro- 
perty of the conies is not in any, nor can any man fo keep them, 
out that they will break out of themfelves ; which is reafon that 
none can have diem in his owii land, unlefs by grant from the king, 
or by prefcription : if otherwife, he is,punilhable in a quo war- 
ranto ; for the queen hath the royalty in luch things whereof none 
can have any property. This caufe is not like to the cafes put, 
on the other fide, of erefting a lime-kiln, dyc-houfe, or the like ; 
for there tlil annoyance is by the aft of the parties who make 
them ; but it is not fo here, for the conies ot themfelves went 
into the plaintiff's land, and he might take them when they came 
^ . upon his land, and make profit of them. None may ereft a dove- 

5. KH- • i^Q^jfg jjjj^ j^g ^i^Q jg lord of a manor ; and if any other private 
man ere£ts it, it is puniihable in the leet as a common nufance \ 
but no adion upon the cafe lies by any private man againft liim 
who ere£ts it. — ^©</ Anderson et Beaumont concefferunt. And 
they faid, they had fecn it to be enquired of before the lord Dytr 
at me affifes as a nufance. And this cafe is not like to other 
cafes which were put of nufances ; for there the tort is by the 

Earty himfelf who doth it ; but here the putting the conies into 
is own land is not any tort , and if there be any wrong it is by 
the conies themfelves, who are fera natura ; wherefore it is not 
reafonable to punifh any other. Beaumond agreed with the 
other Juftices in omnibus. — wherefore afterward, oytheaflentof 
Owjsif alfoy it was adjudged for the defendant. 5. Co. 104. b. 
(«} See %%. ft 33. Car. z. c 5. f. 6. and 9. G. i. c. 22. 

^^,^j^ Capp againft Lancafter. 

T\5BT. Upon a bill of feventy pounds to be paid upon dc- 
'"^diSnJd *" mand. And forafmuch as the plaintiff did not ihew an adual 
it^fl^not Bffoef. ^^™*^f W1LLAM8 for the defendant demurred ; for he fliewcd, 
Uxj to ftiteifj that the demand was parcel of the contra A, fo that the money 
i^ftiud tevim^ Foft* 7ftt» Jones, 56. Strange, 88. 

was 



JHilaryTerm, 39.Eliz. InC. B. 54gr 

ns not due until demanded ; and a demand being requiiite> a Capf 

demand in law, by bringing the aftion, will not ferve the turn ; *f««^ 

s II. Hen. 4., pL 18. where one is bound to levy a fine upon re* ^'^vcAtr%%* 

^ocft, &c. — But Walmsley, BEAUMOND,and Owen, held it to 

be well enough ; for it is a duty maintenant^ and therefore ther? 

needs not any demand, as in the other cafes ; for there the plain* 

tif had not any caufe of action until a precedent aft done by 

him ; but it is not fo here- Wherefore they adjudged it for the 

plaintiff. 



The Councefs of Warwick againjl the Bifhop of Coventry. 



Case 6. 



r\EBT upon an obligation conditioned, That if he paid 15 1. In what cafe oa 
^ at the feaft of Saint Afichael next following, and 15I. a^nu- »*»"<* «<> P*y « 
zhniht{esSio{ Saint Michael, until Hockinhall (the plaintiff's '^^'"^^ g^ 
chaplain) was advanced to a benefice, that then, &c. He plead- pa^nwni ihall 
ed, that he was prefented to a benefice before the firft feaft of Saint be mkfiktu 
AfichaeL — ^And adjudged to be no plea ; for the firft 15 1. is to be 
paid, notwithflanding he were advanced; for the limitation, 
" until he be advanced, &c.*' goes only to the other fubfequent 
payments. Wherefore it was adjudged for the plaintiffl 

Edmunds agatnft Marks. Cai e ^. 

r\EBT upon an obligation conditioned, That if the defendant a bond con<K- 
Ihould come to the Kin^^s Head, bfc, upon the 12th of O^o- tioned co be at 
ifr, and there eleft two arbitrators, who, with two others to be ^^^^ * P^<=* ^ 
cleftcd by the plaintiff, fhall arbitrate of all fuch fums which the ^"uVarbkraT 
plaintiff hath difburfed for the defendant, and promilcd to be paid to^s, &c. is not 
to the plaintiff by the defendant ; that? then, &c. The defendant performed byan 
pleads, That upon the 12th of O^ober he came to the Jf;»^*i attendance at 
Htad, fcfr. and there cleftcd two inhabitants of the faid vill ar- ^® **^ '^^^^ 
bitrators, ad faciendum arbitrium of all fums, &c. and that the 
plaintiff was not there, &c. And hereupon the plaintiff demurs. 
—And, after argument, it was adjudged for the plaintiff. For 
Walmsley faid^hat the plea was not good; becaufe he faith he Mow, 545* 
came thither on the 12th of Oeioher, lie. and he (heweth not at 
what hour of the day, nor how longtime he continued there : for 
it ought to be to the laft inftant of the day, and to be there at fuch 
a convenient time before, that the arbitrament may be made. The . 
pica alfo is not good, becaufe he dotli not (hew that his two ar- 
bitrators were there prefcnt. For they ought to be there; for the 
words are, that " they togetlier yr^ the plaintiff's arbitrators, 
&c." Wherefore, for thefe caufes, it was adjudged for the 
plaintiff. 

Read againjl Burley. Cai» %l 

|) EPLEVIN. The defendant avows the taking by reafon that *f**^^*|* '^. 

he was fcifed of a houfe, being the place where, &c. and ^°|,^ ^J^J^^^J* 
kt it to Brett for years, rendering 61. rent ; and for rent arrear he for the purpofe 

«bang ounofaAurcd, are not liable to a diflreft for rent. See S. C. Poft. 5q6. 3. BtilA. lyo, 
^c- Un. 47. Mr. Har^rive'8 note (ii/< i. SaJk 250. x. Sid . 4»2. 440. L. Raym. x63. a* Vent. 50* 
^\^' rrcc.Cb. 7. s. Vent. 36. 4* Burr. i4;8. 

avows 



55^ Hilary Term, 39. Eliz. In C. B. 

RiA^ avows tihe taking of fo much yarn, and a horfe; and prays retoum 
^ainji averiorum. The plaintiff faith, that he is a cloth-worker, and dc- 
*w»tKT, livcrcd certain wool to be fpun; and the cloth-workers nfed to 
take back their yam by weight; and bccaufetherewerc no weights 
there, he fent to the next village for weights ; and, irt the mean 
time, the avowant diftrained that yam being upon his (houlders^ 
and the horfe, which he had there to carry the yam. Upon tlu$ 
the avowant demurs. 

Walmsley, Beaumond, and Owen, ahfenu Anderson 

held, that this yarn, being upon the plaintiff's fhoulders, could 

Co. L«t. 47. a. not be diftrained, no more than a net in a man's hand ; as 6. Rich. 2. 

U Raym. 3S5. is ; or a horfe whereon a man rides, or which is in a man's hand. 

But Walmsley held, that the horfe is diftrainablc. For it 
is not to be refembled to a horfe in a common hoftry ; for that i$ 
in favour for the benefit of the common wealth; becaufe a com- 
mon hoftry is a common place where men are to herbs^e. But 
if a man put his horfe in the houfe of any private mam, he is di* 
(#) A gtntie- ftrainable {a) ; and it is not material although he be not levant et 
man's chariot couchant : for the reafon, that beafts diftrainablc Ihall qot be dj- 
*^*"»f *f ^! drained for rent, unlefs they be levant et couchant^ is^ becaufe that 
aMmmon live- o^^crwife the owner, by intendment, cannot have notice that they 
ly ftabie, fetmt arc there, that he might have them again. Here the horfe was 
to be aii^faiifa- put there by the confent of the owner, and with his privity. But 
i»ie for rcrtt. jf this houfc were a common place for weighing, it would pcrad- 
''"^•J-Wy- venture be otherwife, 

aR, 3. Burr. 

8504. Beaumond and Owen e centra. For ^e trade of doth-worken 

».Bi,Rqp.4S5. is neceffary, and to be favoured ; and this horfe is not to be di* 
ftrained, no more than a horfe which carries corn to market, 
and is put into a friend's houfe for the time, he is not diftrainablc. 
(Which Walmsley denied.) And where an horfe carries corn 
to a mill, and is tied at the mill-doors during the grinding of the 
corn, he fhall not be diftrained. Which Walmsley agreed; 
' becaufe it is a conunon place, and for the publick weal: but they 
are not alike. 

But they all agreed, that the praying the retufn avert^rum^ wher© 
there was but one horfe, was ill ; but they doubted whether this 
fault was of form only, and then it was helped bythcftatutc of the 
17. Eiiz. c. 16. It was therefore adjourned (*). 

{h) Ic was adjudged that the dtftreTs was not lawful, Poit 59$. 



fiASTER 



• kr 



Eafter Term. 

39* Eliz. In the Queen's Bench. 

Sir John Popham, Knt. Chief Juftice. 

Sir Thomas Gawdy, Knt. 1 - 

John Clench, Efq. f Jujlices, 

Edward Fenncr, E/q. J 

iS/r Edward Cojce, Knt. Attorney General. 

Sir Thomas Fleming, Solicitor Genera/. 



Edwards againfi Stapleton. CAit u 

Michiuimas Term, 38. ^ 39. Elite. Rott\'jOm 

ASSUMPSIT, bv«i executor of a promifc made by his tef- ^t^^l^ 
XfLor. The defendant pleads nm ajfumpjit ; and it was ^^^^^ y, ^^^^j^ 
found for the plaintiff, ^d judgment for hitn. And this ration with m 
bring in King/hn^ error was thereof brought and affiled, Becaufe fr*f*rt 6f the 
he did not Ihcw in court the tcflamcnt in the declaration men- P^y^^^^***. 
tioned: whereto it was &id, that it vns but de&ult of form, which p^^ 
is aided after vcrdift. — But all the Court held it toi>e matter ,^sy,!^^ 
of fubftance ; for otherwife he doth not entitle himfelf to the ac- cVci Jjk. s^ 
tioo, without Ihewing the teftament : for which caufe it was re- 409. 
?crfcd(aj. i.Bom.»«ft. 

%• Buut* sit* 
Hob. 38. Carth. 69. 5. Com. Dig. t|i. DougL 4. In notis. ' ^ 

{a\ Tbjtomiillon is now added on a general demurrer, by 16. ft 17. Car. ». c 8. an4 
4. Annc^ c. i6. See a. Saand« 402. 1. Sid. 149. x. Mod, 9. 

Doftor Barrow agalnft Andrew Gray, Cah %. 

OP THB INNER TBMPLB. 

Eafter Term, 38. Eliz. Roll ^zi. 
A SSUMPSIT. And declares, Whereas one Haljhed was fcifed in ^. enten into a 
fee of certain land in tlie county of Hertford^ and was bound recogniiancc u> 
ifta reconuiance of 1000 1, to the plaintiff, and enfeoffed the de- -^- ^^ *!**" 
fcndant of his land ; that the defendant, in confideration that the ^enf o* tte 
plaintiff (hould ailign unto him nis reconufance, affumed to pay the ^nd to c. who 
plaintiff 80 h before fuch a day ; and alledgeth in fad that he af- promlfesto pay 
figncd over Ac reconufancc, &c. The defendant pleaded non af- -*• ^^ ^ ^»" *f- ^ 
\mtfit\ and a fpecial verdift found, Aat, at the time of the reco- ^^^^ *^^?* 
nmancemadc, Haljhed '^'dA feifed of the land fold to the defendant, u"!^ confi- 
ind alfo of a clofe called Walklej, and enfeoffed one Hyde of the deration to 
clofc called fValkley \ and the plaintiff feleafed to Hyde all his right, mainuin d/- 
intcreft and demand in the lartd called fValkley : and afterwards ^*A/f'- 
^a!/hed enfeoffed the defendant ; and the defendant affumed »/ i.Roli.Ab. 311. 
/«pr<i, ^c. and that the plaintiff affigned the reconufance to the »-RoW-Ab.470. 
defendant. Etji upon all this matter the affignment of this re- J^xk/aeTioi. 
waufancc be a fufficient confideration, they found for the plain- 10. Co 47. ' 

tiff. 



S5« Eafter Term, 39. EHz. In B, R. 

Bar BOW ^[ff^ Etfiy lie. — And it was now moved by Sn a og and Gray 
^•'5. himfclf, that this verdift is found for the defendant. Firft, That 
a confideration to affign a reconufance over is illegal, and main- 
tenance, and therefore it is no good confideration, becaufe 5gainft 
** liw. — Secondly, That by this releafe of all his right and demaad 
in the land to Hyde^ who had part of the land chargeable with the 
reconufance,. the entire reconufance was difcharged ; and then it 
could not be afligAed over ; and that the affignment over was 
void, and was not any confideration ; and that a releafe of 
all the right in the land is a difchargc of the reconufance, al- 
though it be made before execution fued. And in proof hereof 
(a)Mich.Tcrin, a precedent was Ihewn in tlie common pleas, Hyde v. Morley (a), 
i^te *^' ^**'' where an audita querela was brought to avoid the execution of a 
'^' ftatute ; becaufe the conufee, by deed fliewnin court, had releafcd 
unto him, being then tenant of the land and purchafor, vail his 
right, intereft and demand in the land : and it was adjudged to be 
a good caufe of difcharge.— Bvit all the Court refolvcd for the 
plaintiff in both points. And as to the firft, they held, that the af- 
fignment of a debt or reconufance to a ftranger is aiv illegal and 
void confideration ; but to affign it to the tcrre-tenarf^ by way 
AmirepfffiMitj of difcharge of his land, is clearly lawful. And as to the fcconct, 
cunot be re* That this releafe to Hyde of all his right and demand in the land 
*^* is not any difcharge of the reconufance ; for at the time of the re- 

" *' *^ leafc made he had no right nor caufe of demand in the land ; for 
10. Co. 48. 50. the land is not the debtor, but the perfon ; and the land is only 
TWv!" 01?^' charged in refpeft to the perfon : and here at the time of rc- 
shsp! Touch. leafe, being before the execution fued, he had not any right* nor dc- 
320. . mand in the land ; wherefore it is not any difcharge of the reco- 

».Peer.wm.574. nufance. — PoPHAM faid, that he had conferred with the Juftices 
|. Term cp. ^£ ^j^^ common pleas concerning the judgment cited ; and they 
1. Term Rep. "did not remember any fuch judgment : but were of opinion, that 
c. B. 30. fuch a releafe was not any difcharge of the execution.— Wherefore 

And fee Mr. it was adjudged for the plaintiff. Fide 2C. jf/T. 7. 4c. Edw. 3. 

Han^ravc's note w oo ^ M f t^ 

(,)Co.Ut. P^' ^^• 
265. 1. 

Caie 3. Hyde againft the Dean and Canons of Windfor. 

Vide Ante, page 557. 
An aftion lies '^HE cafc was now moved s^in : and the fole queftion of diffi- 
apiinftiheaf- 1 culty was. Whether this aftion lies s^inft the affignee for 
^**.^^kVK°' this covenant broken, he being ^ot named in die covenant?— 
rum with the TANFiELD,ycr the plaintiff m error^ moved, that it lies not ; tor a 
land, although Covenant lies not againft tlie executor of the covenantor, not being 
he is not named named ; as 48. Edw. 3. pL 2, and Dyer^ 1 14. a multo fortiori it lies 
*" **• not againft the aflignce, not being named ; as Old Nat. Br, 102. 

n«e>457- jg g^f jf jj jjg covenanted for him and his afligns, it is other- 
i.Roll.Abr.519. wife ; as 25. Hen, 8. Bro, " Coven.^* 32. Wherefore, &c— But 
9ri;. PoPHAM, Clench, and Fenner, abjente Gawdy, held clearly, 

Pyer, 14. 

5. Co.! 6. 04. a. ». Mod, 269. i. Bac. Abr. 533. Plowd. 284. Cro. Jac. 125. LI. Kaym. 310, 
I. Wood's C^n. 3:6. 3. Wilf. 19. 387. 3. Lurr. i»72. Dougl. xS;. 461. i. Term Rep. 86. 91* 

that 



« # 



EafterTerm, 39. Eliz. InB.R. SS3 

tbt an aftion of covenant lies againft an affignce in this cafe, al- * ^^^.^ 
though he were not n£.med ; for a covenant which runs and refts Th/uTI^ of 
with the land lies for or againft the artignee at the common law, windso*. 
ftla tran/tt terra cum onore^ altliough the affignees be not named ^^^^ 
in the covenant : and a covenant lies againft an executor in aver y i. Roll. ibr. 519. 
cafe, although he be not named ; unlels it be fuch a covenant as . *. Mod. 268. 
is to be performed by the perfon of the teftator, which they cannot 
perform. Wherefore the judgment was affirmed. N. Br. 146. 
Djtr^ 257. fer Brown. 

Harvey againft Ofwald, ^*" ♦* 

Trinity Term, 38. Flix, Roil ^gi. 
FJECTIONE FIRM^. The defendant claims by a leafe for The acceptance 
^ years from the leffor of the plaintiff. The plaintiff pleads a ofrcntaficrcon- 
condition, that if he afligned over anv part of his term that his ^'ll^„g^^l^\r 
Icafc Ihould be void ; and that he had afligned parcel of his term, tbt breach, is not 
whereupon the firft leflbr entered, and let to the plaintiff. The a continuance 
defendant rejoins, that the firfl leffor, after the condition broken, of the eftatc, ex- 
had accepted rent of him due after the breach fuppofed : the ^T ^'^ ,^^"**i* 

1 • ./r f • • 1 I • /• 1 • • * r 1 tion bs of fuch 

plaintilr lur-rejoins, that at the time of this accepting ot the rent, » nature as to bo 

he had not any notice of this breach of the condition. And it was equally within 
thereupon demurred, and argued by B\kkek for the plaintiff, and the conufancc 
by Tow&Eyir the defendant ; Clench and Poph am only being in ^^^^\ ^^%Am 
court.— And Clench held, that the entry of the leffor was not ^^j** H's. 
congcable; for by his acceptance of the rent, he hath affirmed him Poit'sSa/ 
to be his tenant after the condition broken, and thereby hath dif- g ^ ^ g 
pcnfcd with the forfeiture— Poph am i control True it is, when p'aim.^433.' ^ 
the condition is broken, the leffor hath eleftion to continue the Hard. 48. 
Icafe, or to avoid it ; but without privity that fuch eleftion was in Moor, 426.45€. 
him, he cannot make an eleftion. And it appears here upon the c^^°t^' 
demurrer, that he had not any notice that fuch eleftion was in ^^gj ■'*^* ^^^ 
him ; and therefore his liberty of entry cannot be taken from him Cowp. 143. 
by his acceptance of the rent : which is the reafon in tlie books, Dougi. 50. 53. 
that for an entry upon a condition broken, as for wafle, or aliena- *• '^*'" ^^ 
tion, &c, or fuch collateral conditions, 'an acceptance of the rent **f* 
after the condition broken is no bar of entry ; beciufe by intend- 
ment he had not any notice of the breach of the condition ; which 
being collateral to his knowledge, no acceptance of his (hall af- 
inn the leafe : but if he had taken notice of the condition broken^ 
S)d had made an acquittance of the rent, it had barred him of his 
entry. But if the condition be of fuch a nature that the per- 
formance or non-performance thereof lies in the conufance, as 
well of the Icflbr as of the leilee, it is otherwife. Et adjournatur (a )> 
(<) la Trinity Term chit cafe was moved again, and adjudged for the plaintiff* Poft* 57a* 

Shere againft Dickenfon. Cai« 5. 

MichaeiMos Term, 38. ^ 39. £/fS. Roll ^^. 
PRROR of a judgment in the common picas. And afligned. Be* ^^7j^{''"'" 
caufc the venire facias was awarded upon the roll in this man- ^^^ly onthe^ 
ncr, ideo fneceptum eft yicecomiti^ quod ven. faciat 12. quod Jint hicf roU may bo 
ind a fpace left for the day of the return ; fo there was not any day ^nacnded. 
for the return upon the roll, although the day of the return was 
c&o. £Liz. PART II. P p exprefled 



SS4 Eafter Temi, 39. Eliz. In B. R. 

SiiEtit cxprcflTcd in the ventre facia t. And it was faid that the vemre facia f 
DxcjfENsoN. ^"S^^^ ^° ^c awarded upon the roll, and to have a day certain ; for 

that is the warrant for the writ of venire facias : and if it be not 

PoS 6*^ '^ according to it, it is error, and not amendable. — And of tliat opi- 

^^* nion were Popham and Fenner. But Gawdy held it to be 

ainenc'iibie. Et adjournatur.'- But afterwards tlie judgment was 

alfirnicd. 
Cah €. Gooddle againft Caftle. 

To chai^jca A CTION for thefe words : " Thou art a common filcjier, corn- 
man with being ^^ «i panion of cut-throats, and a forger of writings." After 
" wfvff *'i *"^' verdia for the plaintiff, it was moved in arreft of Judgment, that 
kaioaaUc! " ^^^^^ words were not aftionablc. — And all the Jultices held, that 
Ante, |66. for all tlie words except ** and a forger of writings," no aftion 
Poft. 853. lies : but for thofe words Popham and Gawdy held, that tlic 
i.RoU.Abr. b6. ajftion wcll lay; for the words Ihall be intended of fucb writings, 
2. Strange, 748. whcrcof there may be a forgery. — But Fenner ^contra • for it may 

be of writings, the forging whereof is notpunifhable ; as a church 

book : and forgery fhall not be intended, unleTs it be prccifely al- 

Icdgcd. — Clench abfcnte^ adjournatur. 

See 5. £Uz. 

Case 7, Dccrfng ogainfl Moor. 

**joiMt€MKcy'' 'TRESPASS. The defendant pleaded not guilty. The jury 
nay be pleaded found that tlie plaintiff was feifed' of that land, with two 

in abatement J others as herrs in gavelkind, and that the defendant entered. Ei 
^i^'^J^ fiy ^^' — Upon motion, without argument, by Popham and 
ondhr^acraT^ Fenner, cateris abfentibuSy it was adjudged for the plaintiff. For 
iiTue. although it had been a good plea in abatement for the defendant 

Ante 143. i^i. to fav that tlie plaintiff was tenant in common with a ftranger ; 
Skin.j«.pLt2 yet forafmuch as be hath not pleaded it, he hath loft the advan- 
I Saik.4.pl.io. tage thereof; and the finding it by the jury is not material : and 
BuJft ^^'' ^^ *^ ^'^ ^^'^ ^^ ^ adjudged in this court, in one Stoweirs Cafe^ 
Carih. 63. Moor^ 466. where in trefpafs brought the defendant pleaded not 
2. Lev. 113. guilty ; and the jury found that the plaintiff was jointenant of 
». Browni. 229. the land with a ftranger not named ; yet there the plaintiff reco- 
^^'r'il*^ 3'i- verc^. Wherefore it was adjudged ut fupra for the plaintiff. 

I. Mod. loz. 12. Mod. 96. \Q\, 657. Ld, Raym. 312. 341. Stra. 820. 4. Dae. Abr. 66o. 5. Bac 
Abr. 200« B. R. H« 272. Cowp. 219. 

Ca«e 8. . Auftie againft Mafon. 

To fay « Thou A CTION for thefe words : " Thou haft made a forged bond, and 

haft mait a ^^ -^^ «< I ^in pfove it." X^e defendant pleaded not guilty. Af- 

fr^oflabk" ^^^ verdi£^ it was moved, that the aft ion lay not ; for he laid not 

that he had forged a bond : and it may be he was a fcrivcner, and 

might write a bond, which was afterwards forged, and yet be no 

flander to him. — Sed non allocatur And it was adjudged for the 

plaintiff. 

CAt« 9. Kvnnerfley againft Barnard. 

tlilary Tcrm^ 38. EUk, Roll 424. 
2n tpowr the A CTION upon the cafeyir trover of an horfe, and felling him, 
converiion is **- and converting tlic money to his own ufe. The defendant 
iS^'bl'of thi confe^cth that it was the plaintiff's horfe, and that one 7. Cowtnd 
keoUcai t^iAs aUedse^ 10 have boen f9ttQd, i. Burr. 31. 



Eafter Term, 39. Eliz. In B, R* SS5 

found and delivered him to the defendant, torcftorc upon req;acft; K^NKtRBUT 
whereupon he re-delivered him to the faid y, Courtnal before the g^^'^^^ 
adion brt)ught; absque hoc that he fold him, and converted the 
money to his proper ufe. - And it was thereupon demurred ; be- 
aufc he ought to have pleaded the general ifTue, and he could not, Ante, 434. 
traverfe the converfion. — But all the Court held, although it be 
doubted in thebooks, -17. Hen. 8. pL 2. 33. Hen. 8. pL 4 Edw. 6. 
Bro, " Aei'tonfut U Cafey"* and Dyer^ I2i. ; yet forafmuch as in 
rfiii adion the fubftance is the converfion, and without it tlie ac- 
tion cannot be founded, that it well might be traverfed : but in 
regard he hath here traverfed the converiion of the money to his • 
own ufe, which is not materially alledged in the declaration, but is 
fuperfluous ; and by his traverfe hatli made it to be part of the if- 
fuc J the traverfe therefore is ill in that point : and the demurrer 
l)eing upon the traverfe, it was adjudged for the plaintiff. 

Blomfield agatnft Rofwick. , Caib i^g 

Michaelmas Term, 38. ^^39. Elix, Roll z^g. 
A UDIT A QU HIRELA. For that he and one May were bound if on« of ^« 
"^ to the defendant in an obligation, and he recovered againft **«f<^"<**'^J^ 
them in debt, and hTiiAfay in execution ; that ^/^ary was difcharged phimlif may 
bv the (heriff out of execution ; and that afterwards^ by another ca- aftcrwardj ftic 
fiasy he took Blomfield in execution ; whereupon Blomfieldhro\xg\\t cxecurion a- 
this audita querela to be difcharged. It was hereupon demurred. 8^'*^^ theothcr, 
—After argument hy Goufki^y for the plaint! f^znd by Richard- m^y^.g"^^^^^^ 
son/ot tbe defendant^ \t was held by Popham, Clench, and thc(hcriff. 
Fenner, abfcnte Gawdy, that this was not any caufe to difcharge Ante, ic2.478, 
the execution : for if one be in execution, and efcapc defon tort Po^- 573- 851. 
itmcfruy it hath been adjudged in an audita querela to be no caufe s.C «;.Co.86. 
ofdifcharging himfelf ; no more fhall it be for his companion. Mt^f,459. 
It hath been alfo adjudged in this court, in Sympfon v. Boyton^ that *• ^**** *^- 
if he efcapc by the Iheriff's i)ermiffion, and be retaken, yet it is a cra Cau7cf^* 
good execution for the party if he will ; and it fhall not conclude Cro! Jac.53a. 
the narty to enforce him to take his remedy againft the Iheriff : a Hob. 6c. 
viu'u fortiori y where two are in execution, the'efcape of the one *• ^^"* ***• 
ihall not give his companipn any advantage, and make the plain- 
tiff to lofc his execution, and be put to his remedy againft the 
Ihcriff, who peradventurc is notlimg worth. Wherefore it was 
adjudged for the defendant (a). 

(a) StJ ftutrs. Vide the S .C. moved again doubted ; and tbat U was uhlmatcly adjudg^ 
ad«4r;MfiKJ, poA. 573, 574. And S.C* ed with Popham j but 5. Co. 86. feemt 
Moor, 459. where it is faid, that Popham oth«rwife. 
ifurwardt changed his ojMnion,aiid Fs n m f a 

Overton againft Sydal. Cah ir. 

Hilary Term, 57. Eliz. Roll 1042. 
T\EBT againft an executor for rent referved upon a leafe for A prebend can- 
years. The cafe upon demurrer was. That the prebend ' of '\®**'"i^5*»*«' 
^ti-vyn, in the county ofChefiery let that land for vears, rendering ^^^^^^^ xhTcxe'' 
tent ; which leafe was confirmed by the dean and chapter. The cutor of the icfl 
Mce dies ; the executor aftigns over his term > the prebend re- fee of his prcde- 
%is ; a new prebend is made ; and for rent due after the affign- ^^^^^ ^°^ ^*nt 
mcnt he brings debt againft the executor of the firft leffee ; and, f^^^ ^j? f^ 
Whether this aftion lies againft the cxecutpr after the aflignmcat ^^f^. 

M. 715.— 3.C0. i». 14. Moor, 351.600. Poph. izo. a. Vent. 209. i. Sid. a/^. Latch. 160, 
^. tnt. 111. Dalif. 16. 4. Leon. 17. a. And. 133. Cro. Jac'. 334. i. BuKt. i^i, 1. Saund. 140. 
*IU)I1. Rq>. 3669 1. Saund. iSi. 3. Lev. 133. Carth. x/S. z.Coin. Dig. 641. Dowgl. 461. 

Pp a 



55^ Eafter Term, 39. Eliz. In B. R. 

Ovtifoif of the term ? was the fole queftion. — Gawdy. The aftionUcs 
Sypal. "°^ ' *^^ ^^^ ^^^ kffee was chargeable, as well by rcafon of 
the pofleffion as alfo for the privity of contraft ; and therefore, 
although he afligns over his term, yet, by reafon of the privity of 
contraft, he fhall always be chargeable to the Icflbr for the rent, as 
well for that due afterwards as before ; as 44. EJw. 3. pi. 6. and a 
(«)3. Co.ai; cafe lately adjudged in this court between fValker and Harris (a), 

I.' sidHee?^'' "^'^*- '^^^^^ ^\ ¥ ^9- ^^'^- ^"^ ^^^^^^ ^^ i^ ^°^ chargeable, by 
Denied to be reafon of the privity of contraft, but by privity in law, by reafon 
law, of the eftate in him, if tlie privity be transferred, either on the one 

Agreed to be fide or other, the aft ion upon the privity of contraft is dctcr- 
^^» mined ; as where the leffce afligneth over his term, and the leiTor 

SaWnoudjudg. ^^g^^^h over the reverfion, the grantee (hall not charge the leffce 
eu,i-oph.i2o.* for ^^ rent due after the affignmqnt ; as it was adjudged in this 
court, Hilary Terrriy 36. Eliz. Roll 420. betwixt Humble and Glo- 
(*) Ante, 318. ver (b) ; and as it is, where the privity is removed on the part of 
3. Co. 24. the Icflbr, fo it is in this cafe : for the executor here is not charge- 
able by the contraft, but by the privity in law, viz. that he hath 
the term ; which being removed, the aft ion againft him faileth : 
Moor, 35i, for tliere is not any caufe of aft ion betwixt them but by reafon of 
the term which is in him, and his mtereft therein. And/uhlata 
caufa toUitur effe^us. Wherefore, &c. — Fenner accord. The ex- 
ecutor is not party nor privy to the contraft, as the teftator is ; 
for he fhall not be charged but only in tlie detinety and not in the 
debet et detinet. — ^od PoPH AM concejjit^ fed Gawdy negavit : for 
in regard he occupies after the teftator's death, there is no doubt 
but that he fhall be charged ia the debet et detinet. — And then 
Fenner faid, that this charge is by reafon he hath the term, and 
not by reafon of the contraft ; for no doubt, if the teftator him- 
felf had affigned over his term, although he himfelf had been 
chargeable for the rent during his life ; y«t when he tlies, his exe- 
cutors arc not chargeable for tlic rent due after hi& death. 
. The fame law is here ; when the executor afliens over the term 
whereby he was only, chargeable, he fhall not be charged for any 
rent afterw'ards due. Here alfo the privity of the contraft is re- 
moved from the plaintiff's part ; for the plaintiff not being leffor, 
but his fucceffbr, he is not party, but privy only in law ; fo the 
executor is only chargeable for the privity in law ; wherefore tlic 
plaintiff cannot have this aft ion agamfl him, but during tlie time 
that this privity, by reafon of the eftate, and intereft in tlie term 
continues ; and therefore the plaintiff, after this aflignment, can- 
not maintain this aftion againfl the defendant. — Clench accord, 
in ommbus. '^'Po?!^ AM e contra at the firfl : for he held, that the 
executor fhould be as well chargeable as the teftator ; bccaufe he 
comes in loco te/latoris ; and as he fhall partake of every benefit which 
his teftator fhould have done, fo fhall he be fubjeft to every charge : 
wherefore he by his own aft fhall not avoid this aftion againft 
him. But afterwards, upon better advifcment, he held, in regard 
the plaintiff is not party to the contraft, but only privy in law, 
and the defendant is not chargeable by reafon of his own contraft, 
but by a privity in law, the caufe of his charge being removed by 
the aitignment of his terra, that this aftion lies not for the plaintifi* 
againft him. Wherefore it was adjudged accordingly. 

Hampton 



E 



Eafter Term, 3^. Eliz. In B. R. \ 557 

Hampton a^ainfi Boyer. Cai? li. 

rjEBT againft an executor, upon an arbitrament made ifl the Debt dcys not 

*^ time of the teftator. It was demurred in law. Whether it lay iie againft an 

or no? becaufe the teftator might have waged his law. — And ad- ««c"tor upon 

\ without argument, that it lay not. Z^mH^tinZ' 

time of the tef* 
tator. Ld.Raym.24S. i.Com. Dig. 143. i. Salk.69. Cowp. 371. 

Meryll agalnji Robyns. Case 13. 

Trimty Term, 26. or 36. £Iiz. Roll yB6. 

RROR of a judgment given in a writof entry upon difleifin. The Judgment »« 
' error affigned was, &caufc the fherifF returned not the names ^iff^ifit nverM^ 
of the fummoncrs or veyors, — And held for this caufe to be error; ^7/j'***f|!^ 
for if'therc be no fununons made, the party cannot have a writ of to indorftTthc 
deceit; et non conftat derecordoy againft whom he Ihould have it. names of the 
Wherefore it was reverfcd. vtprs. 

S.C.Voor,459. 
5. Co. 15. 

Williams againft Williams. * c^,^ 

Trimty Term, 38. Eli%. Rolljj^o, Hilary lerm, 35. Eliz, RoU^gy., 

CCIRE FACIAS by John fVUllams, as executor of Emma mi- if a woman re. 
Hams J his mother, againft Pf^iliiams the defendant, to have exc- covers her dow- 
cution of 240 1. damages recovered in a writ of dower. The de- ^ ai>d damages, 
fcndant pleads, that he had brought a writ of error upon this brjn^^^^^'Ji^^ 
judgment againft the demandant in the writ of dower ; and affigns cwr^*iinding* 
for error, Becaufe the recovery was againft him by default, benig which the wo- 
an infant ; and that pendente ceo indifcujpt^ the demandant in die man dies, he 
writ of dower died ; and that he had brought a new writ of error "lay ^avca wnt 
mam vobis refidet againft the plaintiff as executor, quod adhuc pen^ her^wwcmor'to 
iet ; and demands judgment, ft pendente hrevi de err ore indifcuffo, avoid the judg- 
txecutionetn habere debet. And it was thereupon demurred. mcnt a:i to the 
Fenner. Idoubtwhether a writ of error lies in this cafe ; be- <*^^nag«« Set 
aufc the demandant in the writ of dower being dead, the eftate re- '^^^'^^fi!-""h 
covered is determined, which is the principal ; and therefore the ^ ^* 
writ of error is determined. — Secondly, I conceive that the error ^^ "^* 
affigned is not error : for dower is favoured ; and a feme (hall not 3,com.EHg!i69. 
tarry for dower during the minority of the tenant : wherefore a 2.Bac.Abr.i45. 
recovery ?gainft him, although it be by defiiult, is good enough. 19^- 
(But to this point none of the Juftices fpake ; for it came not 
now in queftion upon this aftioh.) — Thirdly, If a writ of error 
lies, I conceive it to be a good pica ; for it is not reafon to have 
execution of an erroneous judgment, when no default can be af- 
figned in the plaintiff in the writ of error. — And of that opinion 
was Gawdy as to the laft point; becaufe there appears not any 
default in him who purfued the writ of error in not proceeding, 
or ncgleflting to proceed therein : but the default which was, was 
occafioned by the death of the defendant in the firft writ of error. 
But if the plaintiff in the firft writ of error had been non-fuited in 
the firft writ of error, or had difcontinued, or were flack in the 
proceeding tlierein, there peradventure it would have been other- 
wife. — ^But as to the firft point, Whether a writ of error to reverfe 
the judgment for the damages, the principal being determined by 

P P 3 the 



5S8 



WllLlAMS 
WlLLIAMl« 



5. Co. ifx. 
Owen, I* 7. 
J, I>ccn. 315. 
Show. 13. 
SalU. fc 2^5. 
»• Hawk. 654. 



(h) Vide poft. 
S.C. 567. 



Cask 15. 



TqII is not in* 
cirfcnt to a fair 
or market, and 
^An only cxifl 
by fpcci^l '^taot 
from the king, 
or by picfcrip- 
tirn; and if the 
toUbcuneafor- 
abl<», th« j^rant 
will be void. 

2. Inft. 222. 
I. Ltcn. 7. '?. 
1 gt.i'^-'jC.i^So. 
a. Inft. 221. 
Moor, • - r,. 
a.Rfll. :.^ 1-7- 
c P ^ M cl^. r. 
{«) Ld. R-ynu 

3.riCom.237. 
f^'Str^ne/,471. 
j!7;. 11 J<. 
7. '%\.d. »7, 
i.''\r.TiRcp. 
66&. 



Eaftcr Term, 39. Eliz. In B. R. 

the death or the demandant? Popham and Gawdy held, that 
this Writ of error was maintainable, to avoid the judgment of die 
damages ; for it is as well a grievance as the lofs of the laftid: and 
if there be a recovery in a real aftion of the hind and damage;, and 
the tenant, againft whom the recovery is, dies, and the heir, who 
ought to have the writ of error in relpeft of the land, will releafe 
all writs of error ; yet the executor may fuc a writ of error, to 
avoid the judgment for the damages ; for every one who hath lofs 
fliall have a remedy to redrefs it. And fo it was ruled in this court 
in one Nkholfon^ Cafe (<?), that an executor ihail maintain a writ 
of error to rcverfe an attainder againft his tcftator, to the intent to 
be reftored to the teftator's goods ; although by his attainder he 
had loft his land, which is the principal. Which cafe Fenner 
faid he remembered ; and that it was lo ruled by the opinion of 
three Juftices againft one. But as to the plea, Popham held that 
it was a good plea, if it had been alfo alledgcd tliat he af- 
figned errors upon this writ of error ; otherwi'e it is not any 
plea : for t\\\s fc'tre facias to have execution, he, is the means to 
compel the plaintiff to affign his errors ; otherwife the plaintiff 
will never affign them : and if the plaintiff hereupon affigns his 
errprs, it is well enough for the time, as D)er^ 77, is ; otherwife 
execution fhall be awarded againft him. And it was not any an- 
fwer to fay that a writ of error is yet depending (b). 

(a) Ante, 225. under the name ^^ Marlh's Cafe.*' 

Hqddy againfi Wheelhoufe. 

Trinity Term, 38. Eliz, Roll 1)6^, 

•TRESPASS for the taking of a cow. The defendant juftifics, 
becaufe the town of Northampton is an ancient town, and that 
king Henry the feventh, in the eleventh year of his reign, granted 
to the mavor and burgeffes of Northampton unam fcrtam annua tim^ 
to be holden upon the feaft of Saint Hugh^ cum omnibus Hbertatibus^ 
ct liberis coyfuctudinibus ad hujufmodi feriam fpedlant, vel pertinent, 
and fhews, that at fuch a fair there holden J, S. fold that cow to 
the plaintiff, whereupon he demanded a penny for toll ; and be- 
caufc tlie defendant rcfufed to pay that penny for toll, he diftrain- 
od (a) that cow, as bailiff, for the non-payment The plaintiff 
thereupon demurred in law ; and the ible queftionwas, Whether 
by this grant there be any toll to be demanded ? for if it were due» 
it was agiecd on both fides that a diftrefs might be taken for it ; 
ar.d that the defendant, asbailiff,andoneof the corporation, might 
well diftrain tor it.— It was argued /i^r the plaintiff, that tolPvas 
not dcmansiiibic, unlefs by grant from the king, or by prefcriptToa : 
and it cannot be here by prefcription, becaufe it is a fair newly 
created {b) ; nor by grant, for there arc not any words of grant of 
toll : and it is not any liberty or cuftom of common right apper- 
taining to a fair ; and therefore itpaiPed not by the genera! words 
cum ommbffs lihtrtatihus^ l^c, — ^It was argued for the defendant^ 
that toll i? a tiling of common right due for the entry of things 
fold in fairs or markets ; and for tlie letter knowing ot the things, 
fold, and into whofe property they be paffed : and therefore by the 
grant of a fair, cum llbertatibus ad feriam pertinent, i^c, it well may 
pafs : aiid of common right a penny fliall be paid fpr fuch ; unlefs 

iu 



EafterTerm, 39- Ellz, In B. R. 559 

in places where nothing, or a greater fum, is by prefcription to be .^"^T 
pid. rtde 9. Hen. 6. pL 45. and 12. £rf«/. 4. /►/. 9. VfnllULvi^ 

Poi^HAM. Toll is not a .thing of neccffity, nor incident to 
i&ir ; tor there are many "places where no toll is paid. If toll s^'J^^jJ^f^-g. 
had been ufed to be paid, no doubt but that by grant of a fair it wiifon, 107. 
had well pailed, without the words cum pcrtlruntih (r) ; and quef- Cowp. 47. 
tionlefs alfo the king may grant a fair", and that toll ftiall be paid, (f)Paim.78.S6. 
although it be a charge upon the -fubjeft ; becaufe his fubjefts ^^^^ ^^^\ 
(W2. Ac vendees) have benefit and eafe by fuch fairs : but tJic ' 
king cannot appoint a burthenfome toll {d) ; but it ought to be a jj„ft,3,^o!7i6. 
petit fum, as a penny (k twopence, which are the fmalleft coins ; Moor, 474. 
orof kflcr, but not of any greater value to charge the fubjeft. 3.£</w.i.c.3x. 
Bat without grant or prefcription, toll is not of common right to 
be demanded. — Clench inclined to that opinion: but becaufe , ._.. . J 
the other Juftices were abtent, adjoumatur {e). " moved again in 

Ificb. TcnD, and adjudged for the plaintiff, that the toll was not due nor demandable. Poft. 591, 592* 

Cadogan againft Powel. Case 16. 

pRROR of a judgment given in affife in Monmouth. The error ^^^^^""^^^ 
^ atligned was, Becaufe Andrew Pvtvel had brought an aflife f«"^*^^" 
againft William Cadogan and 'John Cadogan de quddam portlone deci- the writ (ball 
narum renorvant, de 300 acris terr. in Sta^eney. — ff^IIiam Cadogan abate. 
pleads, nul tenant de franktenement tenementorum pradifforum In v'lfu tut. 37. S51. 
f^Jitorum^ et vi querela Jtecificata named in the writ ; and if not 8.Hr». 6. pl.35. 
found, nul tort^ Isic.-^John Cadogan pleads nul tori\ and the affife Thcol. bk. ji. 
taken, quoad placitum IriUielmi Cadogan^ finds, quod non fult aliquis ^' l?\ ^^^ 
tfnms tomndem tenementorum in vifu recognitorum pojit, et In querela 
fftdficat. in trevi nominatus. Et quod idem fVillielmus fecit nul tort^ 
Wf. And they furtlier find, tliat the plaintiff was feifed of the 
tithes, until by the faid John Cadogan dijacifed, &c. And there- 
upon judgment was given, quod querens nihil capiat per breve verfus 
fradi^um ff^Melmum^ Jed Jit in mijericordia ; et quoad J, C that 
the plaintiflf fhould recover, &c. 

It was affigncd for error, That tlie judgment ought to have been 
entirely againfl the plaintiff : for when it was found that there » 
was nul tenms nofme^ t^c. the writ abated in all againil them both ; 
and judgment ought to have been given for the defendant. But 
it was thereto faid, that this affife of tithes, which is given by the 
ftatnte of 23. Hen. 8. c. . of tithes, is well maintainable againft 
any who takes die tithes ; and it is not requifite to name th€ terre- 
tenant: and tlien, although it be found ^m^^ die impetrationis breyis 
nmfutt aliquis tencns eorundem tenementorrumy £^r. that is to be in- 
tended, quod nonjuit tenens of the land out of which tlie tithes, &c.. 
which is not material. And in proof thereof vide 12. Edw. 3. 
" Brrj:' 267. 31. J[f. 31. Dyet, 84. 

But all THE Court held, that tenementorum in vifu poJit. et in 
fjfierelafpecificata are intended of the tithes thcmfelves ; and of ne- 
ccffity there ought to be a tenant named, otherwife the affife is 
not maintainable : then the affife finding tliat there is not any te- 
nant named, it ought to abate. 

^«4f/f,- How it can be ? For when it is found that he was feifed, 
Bntii by John diflcifed, it is therein found that John was tlie dif- 
feifor and tenant ; for it being of tithes, which are in pernancy, he 
remained always tenant of them to every aSion, and could not 
^ifpofe of it as he might of the land itfelt. But notv^ ithflanding^ 
fer thi| cauie, the judgment was reverfed. 
See 25. Edw. 3. c. i6» 
PP4 



560 Eaftcr Term, 39. Eliz. In B. R, 

Caii 17. • The Earl of Pembroke againjl Sir Henry Barkley. 
There omnbt *pRROR was brdught of a judgment. Amongft the errors af- 
^^^^^m^tf^ figned, the point in law that the provi/o was not a condition 
utiafwiifaaa'' "^^ affigncd. But the Justices and Barons would not hear any 
within a toicO; argument, in regard it had been difputed amongft tliem, before the 
andanaaioncii judgment given ; and, for the greater part, holden to be a condi- 
tio cafe for di- ^jq^^ ^^^ Ijy ^j^g'jj. advice adjudged accordingly. • 
m'i^TLT^ But now divers other errors were affigned,— Firft, Becaufe the 
war and w6a/ aftion is an aftion upon the cafe for difturbine him toexercife the 
•fj and ifeniirc office of the keeper of a walk in the foreft 01 Fromefel-wood \ and 
damages bcgi- fuppofing that hc was fcifed of the manor of Stok-Trj/ierj to which 
▼tn, where part j^jnor the office of the cuftody of the fald foreft appertained ; and 
doesnotTmand ^^^^ hc and all thofe whofe, &c. time whereof, &c. by reafon of 
them, it it error, the faid office had had, &c. omnia Jfona et cataila forisfaHa 
Ante, 384. within the faid foreft, except bona et cataila forhfaila fecundum aj-^ 
Co. Lit 114. Jifamfo^ejia^ (ffc. whereas there cannot be a prefcription to have 
5. Co, 110, omnia cataila for isfa^f a, bfc. and then there are damages demanded, 
and given for a profit, which he could not have. 

A fecond error affigned was, Becaufe the difturbance is alledged 
that he, 23d December^ 35. Eliz. having deputed fVilliam fVheeler to 
kepp Staver-dah'walk within the foreft, made an aifault, and hin- 
dered him to receive the cuftody of the faid walk, ac alia proficua 
(and doth not ftiew what profits) in the f^id walk emergentia colli- 
gere nonpermifit^ fed impedivit (and he (hews not how the difturbance 
was). II. Edw. 3. *' Ji'^/p-'^ 112. 

A third error affigned was, Becaufe the difturbance is alledg- 
ed 23. December^ per quod i pradido 23. December 35. ufq, I0« 
February next following he loft tlie profits of the office : and he 
{hews not any caufe whereby hc loft the profits from the 23d of 
December^ nor tliat he loft the profits the faid 23d of December \ 
and yet damages are given for that time alfo, wlierc damages are 
not to be given : for it is not alledged that he was kept out from 
the cxercifing of the office, nor any difturbance after the 23d of 
(a) Sec a. Bac. December ^ nor with a continuando [a), 

Abr, p. 8. and Wherefore for thefe errors and imperfcftions in the declaration, 
the cafes there ^^^ divers others, without regarding any matter iu law, it was 
^" ' awarded that the firft judgment ^ould be revcrfed. 

CAjt 18* Rofs againfi Mofs. 

A promife to TERROR was brought in the exchequer chamber of a judgment 

<!ircharj,e one XL gjven in the queen's bench in an ajfumpjit ; where the plaintiff 

iaiLn ofTcii^nV declared, that in confideration he would relinquiih fuch afuit,the 

quiihing ano- defendant promifed to difcharge him againft all fuits of y. S. ; and 

f therisvoid. ailedges in faft that he relincjuithed his a£Vion ; and that thedc- 

Anie, 455. fendant had not difcharged him from fuch an aftion. And here- 

?9^ ?fy* \ipon judgment was given for the plaintiff. — The error affigned 

was, That this is not any confideration ; for he might relinquiih 

it to-day, and afterwards begin it again : he ought alfo to have 

averred, that the aftion which he was to difcharge was aftionablc. 

And for both thefe caufes it was held to be. erroneous j and tho 

judgmem was'^reverfed. 

.♦..'■■" ^ 

The 



Eaftcr Term, 39. Eliz. In B. R. "^ S^t 

The Lord Audley againft Pollard. ^^« »9* 

PJECTIONE FIRMuE.— It was held by all the Justices, Tbewtiy of » 
*-* that where a fine was levied with proclamation, and a friend of JJ^*;^'^*^^^^ ^ 
him who had the right entered to his ufe, to avoid this fine without gne, uniefs be 
his appointment, and the.conufee re-entered, and the five years who has the 
paffcd, that this fine is not avoided, but fhall bind ; for by the w^^'aflcnttio 
exprels words of the 4, Hen. 7. c. 2^. a fine (hall bind, unlefs it ^^7**^"^^ 
be avoided by entry, claim, or aftion of A/Vnwho hath right there- Ant^^jtl 
to, within the five years : and it is not fufficient for a flranger to 
enter, unlefs it be by his command who hath the right,— But ^*^'^^ j^^. 
Gawdy faid, that the agreement peradvcnturc of him who had c©. lit. 15s. - 
the right, withiii the five years after fuch an entry made in his Poph. 108. 
name, wonld ferve ; but an agreement afterwards would not Touch. %u 
fen-^ ^jutre. — Note. Popham faid, that he demanded the opi- 
nion of all the Juftices in Serjeants-Inn about the' principal csue, . ^ There nmii' 
and dicy were of the fame opinion {a) . ^^^ ^^^^ ^^, 

try to avoid a fine* Strange^ io86. Dous^ 4S], 
See 4. Aon. c. i6* 



Eafter Term, ' 

39* Eliz. In the Common Pleas. 
^ir Edmund Anderfon, Knt. Chief Juftlce. 
Thomas Walmfley, Efq. 1 

Francis Beaumond, Efj. \ Jujlices. 

Thomas Owen, Efq. ] 

Sir Edward Coke, Knt. Attorney General. 
Sir Thomas Flcniing, Knt. Solicitor Genera/. 



Morgan againft Johnfon. Cah 1. 

r\EBT upon a bill, which was in this manner : " Memor an- Id emum «>f 

** DUM, That I, Thomas John/on^ do bind iay{t\{ to John i'^^^'*^**^^ 
" Morgan to pay unto him all fuch monies as my brother oweth ^^''" 
** him. In witnefs whereof, &c." At the end of the biU under- '^*®^^/ ^- »3- 
neath was written, " fVilliam, the brother of Thomas Johnfon^ owed ^^'^^' ^^{^'^ 
" to Morgan AOV The plaintiff in his declaration avers, that i?roU.aM41! 
tyiUiam^ &c defendant's brother, tlien owed to him 40I. It was pi. n. 
thereupon demurred ; and moved for the plaintiff, that although ^^ i74« 
this bill was uncertain at the firft, yet by averment and writing q^^^ '^'' , 
«ndcr it, it is certain enough ; as a leafe by deed for fomany years skin/cVc', 
as 7. 5. (hall name : when J. S. had named them, it is fufficient 
aad certain enough. — And all the Justices agreed for the plain- 
tiff, that by the averment the debt is fufficient, and the deed may 
tc referred to a collateral matter ; as an obligation to perform co- 
^tnants within an indenture. Wherefore it was adjudged for the 
plaintiff 

Wifem^a 



564 EaUer Term, 39. Eliz. In C. B. 

Cab 1 1. Wifeman agatnfi Crow. 

Trinity Term, 'fi, Eliz. Roll z^oz. 
If tcmnt for HT RESPASS. Upon demiirrer the cafe was, Tenant for life, tbo 
kf^ail'^fuff^Ta remainder to Thomas fVi/eman in tail, remainder to John 

^LTwion^reco- Wifi^nan the plaintiff in fee. A writ of entry is brought againft tc- 
wr>sand vouch- iiant for life ; he vouched Thomas fVifcman the firft tenant in tail, 
» him in re- who voucheth the common vouchee ; and fo a recovery was had. 
"^**W th*'*'* The tenant for life dies ; Thomas IVifman dies without iffttc ; "Jtht 
tj^tc ui^ but ff^if^on the plaintiff enters upon the defendant, who ouftshim.— 
the reinainder AH this matter being difclofcd in pleading, after argument of the 
nfee. feijeants, it was adjudged for the defendant, by Ac opinion of 

*'^- 570* Anderson, Beat: AfOND, and Owen. For this recovery is out of 
Moor,690.955. the letter and intent of the 32. Hen. 8. c. 36. and 14- El'tz, c. 8.; 
5.C0. 60. b. f^f ^Yicy extend only to rcltrain the recoveries againft tenants for 
vLcv! ic8. ^^^ °"*y ^ tenants, which at the common law was 2 bar to him in 
fico. 41. * remainder, and as recoveries alfo where tenants for life are only 
J. 6% 63. vouched; and none who have the inheritance was party thereto. 
xRoli Ab. 3C)«. But here, by his voucher of the firft tetiant in tail, the judgment 
ri-ot onRccov. jjgj^g given againft him, that is not to be faid a recovery againft 
j^Pecr. WilL tenant for life, but againft tenant in tail ; and he who hath the in- 
f6v heritance being party to tlie record, it binds every otlicr. If one 

1. WHf. 176. in remainder was only aflenting,and no party to tlic recovery, it 
*" ^^^'^^^' ^^^'8^^ perad venture be otherwife ; but here it is move thaa aflcnt : 
' iowp. 579. ^^^ ^^^ common cafe, if tenant in tail bargains and fcUs the land, 
i^TerniRqj. and a pracipe is brought againft tlie bargainee, and he vouches the 
^R, 740b tenant in tail, and he voucheth the conmion vouchee ; there alt 
agreed tl^at this fhall bind all in remainder; and vet there the bar- 
gainees but tenai^t for life. — And Anderson faid, this very cafe 
was fo adjudged in the queen's bench ; and although writ of error 
was thereof brought, and the error afiigned in this point in law, 
the greater part of the Juftices of the common pleas and the Ba- 
rons of the excheqiier agreed to afhrm the judgment : but it was 
afterwards reverfed for a point in pleading, and not for tlic matter 
in law. — But Walmsley argued to the contrary ; for the letter 
and intent of the 14. Eliz, c. 8. is to reftram recoveries againft 
tenants for life, that they Ihould not bar any but thofe who ar« 
party or aflcnting tliereto : and he in remainder, who is not party 
to it by voucher, nor aiicnting to it, fhall not be bsfrred by fuch 
a recovery, which the ftatute reputes to be falfe and covinous, 
and to the prejudice of him in remainder, who had a good and 
rightful remainder ; which was not to be bound by fuch a feigned 
recovery. And whereas it is faid that this recovery is not ag-ainft 
tenant tor life only, but alfo againft tenant in tail in remainder, 
that is not material ; for the recovery is principally againft tenant 
for life ; and the judgment is only againft him for the land ; and 
againft him in remainder only for the recovery in value : fo it is 
dircftly within the letter and purview of the . ftatute, and witliin 
the intent to be remedied. Wherefore, &c. — But, notwitliftand- 
Ing thefe reafons, it was adjudged for the defendant. IQ. Ca^ 
43. Co, Enttii's, 

Love 



EafterTerm, 39 Eliz. In C. B. 5^3 

Lovelace againft Keignolds. Cai«3. 

T*HE cafe was now moved again. — Andall the Court rcfolved^ Ifajuryfinddie 
^ that the verdiA was found for tlic plaintifF, and againft him pUintiff has 
ffbo pleaded the prefcriprion. For the prefcript?on is entire, cnmmonbyprB- 
aad tlic payment ot a penny annually is parcel of the prefcription, {|f J^i,^"L/'l?* 
and it mall be intended to oe as ancient as the common, and that ed ^owL f^/^ 
thcv began at one time. Wherefore, when he prefcribes to have a penny a year, 
common generally, and it is found that he ufed to have it, paying cheverdiaisfor 
cMicpeany for it, the common which is found cannot be intended ^ <l«^cndant| 
the lame common which he hath prefcribed to have. As in lo, ^the^^^^ 
EdiL', j^pL i-j. prefcription to have common in grofs, evidence pared of"^tlic 
to prove that he hath common appurtenant, doth not maintain the prefcription.— 
iiTuc ; for it is not the fame common. If this part alfo of the Ante, 546, mnd 
prefcription ftiould not be fhewn for tlie common, the tenant oV^ J^f" '*wii 
the land fliould not have any remedy for his penny. And as to the "" ' 
judgment cited in the queen's bencn, there is a plain difference be- 5*Cob ^^ 
r.Tccn that cafe and the cafe in queftion. For there the copy- KBttrr.442*' 
holder prefcribes to have common in the lord's land, and it was ^P* ♦T- 
travcrfcd ; and it was found that he had conwnon according to his V. /™ *^ 
prefcription. And it was further found, that the copy-holders in 
the laid manor had ufed to pay to the lord ^ro eadem commwua 
knamrallinam et qulnque ova per annum \ and adjudged that the pre- 
fcription was well pleaded : for there were two prefcriptions, the 
one for the commoner, the other for the lord. Wherefore it was 
fufficicnt for the commoner to alledge the prefcription for the 
common, and he needed not meddle with the other. And thi» be- 
ing found is fufficient ; and the finding the prefcription on the 
lord's part is not material, which was the reafon of the judgment 
there, as Popham and Fenner affirmed to us. But here the 
prefcription is entire, whereof the pa)rment of one penny is par- 
cel, which ought to have been entirely alledged. — And of that 
opinion were Popham and Fenner. — Wherefore they all agreed 
tiiat judgment fhould be given for the plaintiflF. 

Anonymous. Cxti 4. 

A CTION upon the cafe for thefe words : *' Thou art a corn- Words import^ 
^ ftealcr." After verdift for the plaintiff, upon not guilty «"S » ^^^^> ^ 
pleaded, it was moved, that an aftion lay not for thefe words. ^^^J^^'^^^IJJJ** 
For it is not alledged of what value ; and it might be under twelve mediately im.* 
pence value, and lo not felony; it might alfo be that the corn putc felony, 
i^as grow^ing, and fo no felony. — Sed non allocatur. For the value ^,16 
i^ not material, becaufe the aftion would lie for calling him cowp.^ariJ^ 
'* thief" generally. It (hall not alfo be intended but of fuch corn 
^Hich might be Uolen, and not of corn (landing. Wherefore it 
was adjudged for the plaintiff. 

Francis Throgmorton's Cafe. casi c. 

ACTION upon the cafe againfl Francis Throgmorton, becaufe he Anadionlnna. 

procured the plaintiff to be indifted as a common barrator be- turcofconfpira- 

'Orc the jufticcs of peace in tlie county of fVarwick ; and that af- *^][^nftw*!!^on 

tinvards he was lawfully acquitted thereof, before Andeiison f'rcaufingano!! 

^ tt> be nulicioufly profccotcd i but it mu ft (hew that the profectition was befor^> a competent ju- 
' '£Qion ; and how it was determined. — Cro. Jac. 553 •557* 2. Bulft. 271. i, Sid. i ^. Ydv. i z6. 461 
^«D^<^ii4.69i. i.Hawk. P.C. 348. DougLax5« 1. Term Rep. 428. a. Term Rep. 225. 

and 



5^4 Eafter Term, 39 Eliz. In C. B. 

Fkakcis and Clench Jufticesj Juftices of aflifc there. The defendant 
Tb»o6moi- pleaded not guilty^ and found againft him. And it was alledged 
•ypK s A*s. ^^ arrcft of judgment, that the declaration was not good. For he 
hath fhewn, that he was acquitted before Anderson and 
Clench, Juftices of aflife, which is not good ; for he cannot be 
acquitted l>:forc them as Juftices of aflife, but as Juftices of oyer 
Ab^ 71. and terminer. And it was held to be an apparent fault by the 
whole Court. — Anderson and Beaumond held, that the adion 
lies not for the matter : for when one prefers an indiftment, and 
is fworn thereupon, it is to be intended that he prefers it lawfully, 
and in zeal of juftice. And although the other be' found not 
guilty, it is not reafon he fhould be punifhed for exhibiting a 
bill ; no more than where a bill is exhibited in the ftar-chambcr 
for matters examinable there, an aftion upon the cafe lies not, al- 
Amc, 24». though it be falfe; no more here. But where two or more con- 
^,N. B. 42. g. fpijg together to procure one to be indifted of felony or trefpafs, 
and he is afterwards accjuitted, it fhall be intended by law to be , 
malicioufly done, for which confpiracy lies ; but no aftion lies, | 
where only one prefers a bill of indiftment ; for it would be in 
hinderance of juftice. Wherefore, &c. — Walmsley dbubted I 
thereof; for the declaration fuppofedit toht malhiose. And there 
is not any reafon, if any one, without caufe, will procure another 
to be indifted, but that an aftion will lie againft him. — ^Where- 
upon it was adjourned. I 

Case €. Huht againft Singleton. 

jfme. Page ^7S, Ca/e^j. 
The 14. E/«. c. TTRESPASS. It was found by fpecial verdift, that the dean and 
bw 'Inf ne<^ chapter of St. PauFs made a Icafe for forty years of an houfc 

not*be pleaded. ^^ London ; the which houfe was then in leafe for ten years to a 
Ante, 473. ftranger. Whether this were a good leafe, or no? was the quef- 
3. Co. 6e. ^io^« — And it was held by the whole Court, without argument. 
Comb, incnm. that it was not a good leafe, but merely void by the 12. Eliz. c. 10. 
344- and not ^-arranted by the 14. Eliz. c. 11. {a) which made Icafes 

Vent. 246. Qf houfes in cities to oe good for forty years, fo as it be not made 
This caVc is '^^ reverfion of any other leafe. For although this leafe is to com- 
queftinned i, mence immediately, yet it is in law a leafe in reverfion, and there- 
Mod. 105. but fore within the words of the ftatute. And the ftatutc here needs 
^isaiiowcd 10. r^Qt ^Q be found by the verdift, becaufe it is a general law. Whcrc- 
eonfirmcdVart. ^^^^ ^^ ^^« adjudged accordingly. 

9. — Vide Doug. 567. 3, Bac. Abr. 330, 331. 349. 

(a) See 18. Eliz. c. ij. 

CAtt 7. Wheatlcy agawfi Chriftopher Beft, 

In dower, if a T^OWER. The tenant made default after default ; whereupon 

cdTor'hirt^m ^^''"''' ^'-^^ ^^^^^^"^ ^"^ ^ received for his term made to 

wnd^r a Lfc ^™ before the coverture ; and he was received, and his term fav- 
bcforc coyer- cd. Tlic cjuclUon HOW was, How the judgment and execution 
turc. tl.c judg- fhall be ? \ or if it fhould be, quid ccffat executio during tlie term, ihe 
mcmflMiibe fhou Id not then have the rent refcrved upon the leafe. — And all 
^T^tdl^lt ^•^^ Juftices .agreed, that the judgment fhould be entered generally, 
(hall be de. that ihe Ihouid recover feifin of the moiety of the Und (the laiid 
Uvcrcd without ODfting the tcnant.^Co. Ut. 3^. a, i'lgot on Recov. \^i. 

being 



EafterTerm, gp.Eliz. In C.B. S^S 

king gaTcl-kind) ; and that the writ of execution fhould be fpe- Wwatlbt 
Oil, tlut the Iheriff fhould notouft the termor, but that he fhould ^I'^i^ 
amc upori the land, and demand feifin for the feme ; and there- B««t# 
irflie mould have the moiety of the rent, with the reverfion. 
Beaumond faid,that fo it was done 3. £//z.inhis mother's cafe; 

upon a petition of Dower ^ the reverfion being in the ^ueen. 

Wherefore the Court commanded to have it to be done fo in 

thisaie. 

Bradbury agatnft Reynel. <^«« •• 

r\EBT agaiiiA him as executor of Tyrrel. The defendant An «eciitqr A 
^ pleads, that Tyrrel died inteftate, and that certain of his goods /»•• ion renuuns 
amc to the defendant's hands, and afterwards adminiftration was {i**jj®» i^?^** 
committed to J. S. to whom he had delivered tlie faid goods.— thc^ai*^*^hf 
Peil Curiam. It is not any plea ; for if tlie adminiftration had inceiuce to tim 
hecn committed to him, it would not have purged the firft tort, adminiftrator. 
So here, altliough adminiftration is committed to a ftranger, in Amc^i©».4ug. 
regard that he hatii once made himfelf chargeable to the plaiimfPs ^' 
afiion, as being executor idefon torty bfc. he Ihall never afterwards 5* Co. ?4- 
aifcbargc himfelf by mztter ex poji fa ffo. Wherefore, kc—JJ/our- ^J^™^"!-*'!- 
natwr.-^Etvlde 21. Hen. 6. pL I. 8. 9. Edw, 4. pL 47, 2. ^/«^*-' Cro. Cai> S^. 
3.^/, 20. Carth. 104. 

s. Mod. 29}. Ld. Raym. 63. Went. c. 14. i. Salk^jij. «« TermR.ep.597u 
See 45. Eliz. c. S, 

Matthew's Cafe. Cam 9. 

r\EBT upon a leafe for years made at Northampton of lands in Debt for rest 
D, in the county of Northampton. The defendant pleaded upon a icafj^ 
nifnldthety and found againft him. And it was moved in arreft of "^y ^^^ "'»'' 
judgment, that the vemre facias was awarded Je Northamptorif Jjjjjf^^ ^^^ 
whereas it ought to have been from D. where the land lies ; but ^nte, 259'. 
it the leafe had been traverfcd, it ftiould have been from tlie place 2. Term Ren. 
where it is allcdged to have been made {a). — The Court hcM 238.241. 
the trial to be good enough ; for tlie debt is due by reafon of the 
contraft, which was ix Northampton. Wherefore, abfetUe Ander- 
ws, it was adjudged for the plaintiff. 

(«) Vi<le note [a) page 260. pi. 46. 

Cass io« 

Biunden's Cafe. 

rvEBT upon an obligation, conditioned to pay an annuity at indetHfortnuK 
the Annunaatlon of our Lady^ or within twenty davs after. The n"»fy payaWc n. 
ifluc being joined upon a collateral matter, and found for the o^JJ^J'nf '"'^^ 
p'amtiff, Drew moved in arreft of judgment, that the original SlJ["//^'^r' 
«as brought the eighth oi Jpril; and he alledgcth the breach to be writ was' 
« the Annunciation lafl paft, wliich was within the twenty days af- brought the SA 
ttr the fcaft of the Annunciation, and fo the aftion brought before ^A''f'^** ***^ 
hehadcaufe ofaftion.— The Coui^T held it to be an apparent ^^ caufe of 
feiilti for the annuity was not due until the end of the twenty aaion had then 
ivs. Walmsley faid, that it hath been adjudged (tf), where one «rifcn. 
n:akcs a leafe for years, rendering rent at Michaelmas^ or within Ante, 325. 
t'Vfnty days after, and dies after Michaelmas, and within the twen- ^^^* 59^- 
^days, that the rent was due to the heir, and nor to the execu- ^'^- J**^* 3««' 
^f (h). Whereupon the judgment was ftayed. 3.^ Mod. 195. 

Comb. S3. 5. Mod. 287. i. Term Rep. 78x. 
(«} 10. Co. 12S. Poft. 575« ^ (Jb) See u. Geo, 2. c. 19. U 15. 

Fcreby 



j66 Eafter Term, 39. Eliz, In G. B, 

Case 11. Fcreby againft Lurkyn. 

A promifc to A SSUMPSIT. And declares, that the defendant, in confident 

oMkeateafege- x^. tion the plaintiff would make a leafc to him of fuch land, 

^cSil w^! aflumed to pay 20I.; and alledgcd in faft, that he had let the 

d«-a(ion to ^"id to the defendant for five years ; and the (defendant had not 

ground an paid him the 20I. The defendant pleaded non ajfumpjit ; and found 

aaionupon. againft him. And after verdift it was moved in arreft of judg- 

S. C. Noy, 65. ment, that the plaintiff had not performed the confideration : for 

he being to make a leafe, it fhall be intended for life. — The 

Court held, that the promife being general to make a leafe, it 

may beany leafe, vi% at will, which he might determine prefcntly : 

andit is not any confideration to ground an adion. Wherefore 

, the judgment was ftayed. 

Ca« la. Willoughby's Cafe- 

EafterTerm, 39. F.lix. Roll 125O. 

Proceedings T>ERC1VAL WiLLOUGHBY, and Bridget his wife, one of the co- 
upon a writ A ^ heirs of Sir Francis Willoughhy (becaufe Sir Francis Wtllougbby 
wntre tn/ficiw ^jj^j feifed of a great inheritance, having five daughters, whereof 
the eldeft was married to Percival fVUlouMy^ and not any fbn ; 
Winch 71. and the faid Sir Francis^ leaving his wife Dorothy^ who, at the time 
M^' 1*^' ^^ ^^^ death, pretended herfelf to be with child by Sir Francis^ 
00^^3^0*^686. which if It were a fon, all the five fitters fhould thereby lofe the 
Mofeicy, 391. inheritance defcended unto them) prayed a writ de ventre infptci- 
a. Peer. wm. endo out of the chancery, direfted to the fheriff of Z^w^ow, that he 
59J- Ihould caufe the faid Dorothy to be viewed by twelve knights, and 

Ham-^e's 'co. Searched by twelve women in the prefence ot the twelve knights, ct 
tit. 8. note (3) ad traSlandum per ubera^ et ventrem infpiciend, whether fhe were w^ith 
for an obferva- child, and to certify the fame into the common pleas. And if fhe 
tion on the na- virere with cliild, to certify for how long time in their judgments, 
tmeofthis et quando Jit paritura. Whereupon the Iheriff accordingly caufcd 
her to be fcarched, and returned that (he was twenty weeks gone 
with child ; and that within twenty vf^tV!& fuit paritura, Wherp- 
lipon another writ iflued out of the common pleas, commanding 
the Iheriff fafely to keep her in fuch an houfe, and that the doors 
fhould be well guarded ; and that every dav he Ihould caufe her to 
be viewed, by fome of the women named in the writ (wherein ten 
were named) ; and when fhe fhould be delivered, that fome of them 
Ihould be with her to view her birth, whether it be male or fe - 
male, to the intent there fhould not be any falfity. And upon 
this writ the fheriff returned, tliat accordingly he had caufed her 
to be kept, &c. and that fuch a day fhe was delivered of a daugh- 
ter. — Note, This writ, and the proceedings thereupon, are 
grounded upon Braeion^ lib. 2. foU 69. and upon the writ in 
%ht Regifter.Jol. 227. 



Trinity 



Trinity Term, *» 

39. Eliz. In the Queen's Bench. 

Sir John Popham, Knt. Chief Jufttce. 

Sir Francis (rawdy, Knt. ^ 

Edward Fanner, Efq. i Jujiices. 

John Clench^ £^. ^ 

Sir Edward Coke^ Knt. Attorney General. 

Sir Thomas Fleming, Knt. Solicitor General. 

Williams agavift Williams. c^*-, c, 

THE cafe was now again argued, and only upon the errors Todgmcnt ia 
afiigned. — The First Error was, That the recovery was dower agaiiA 
ajgainft him by default in dower; and that he, at the time an infant by <k- 
of the recovery, was, and yet is, within age : for which vide Tear *^"*^ *' ncx«r- 
B^A, 6. Hen. 8. and 17. Edw. 2. pi. jo. " &auver Default^ Brook T!!!TJd^ 
Jh.p. Dyer^ 104. — ^The Second Error was, That he was not the parol (b;A 
terre-tenant at the time oftlic adion brought, nor ever fincc. As notdemar. 
to which, although it be fiiid that he lofe nothing in the land, and ^*"^» 557- 
tliwi he cannot have a writ of error, yet here he lofeth damages ; ^^^* ^"^ 
and to excufe himfelf from them, it is reafoiiable that he fhould ^"^^ ^^^ 
have this writ of error. In the Tear Book ^ 6. Edw. 3. pL 8. it is '^fy'^^. 
hoUcn, that he who pleads ** non tenure^^^ Jffiight hs^ve a writ of Co. Ut.^^. jl 
error. For although he hath not therein freehold, yet he majCro.jac.m- 
have in reverfion what he may lofe by the judgment; but it is 39 »• 
oiherwife of him who difclaims. Wherefore, &c. 5.*B1. oiu 

Gawdy, Jtiftice^TS to thefirft held it to be error, for a recovery ^oo/ 
againft an in^t by default differs not from zx\ot\iQX pracipe. In 
Anderfons Caji^ Dyir^ 104. it is ruled after long argument, that a 
recovery againft an infant .by default in anotiicr pr^ipe is erro- 
neous. 

PoPH AM and Fenner e contra. For Fenner faid, that a writ 
ofdciver was favoured ; and it is not reafonable that the demand- 
ant fliould be prejudiced by tlic tenant's infancy ; for if thereby 
the demandant fhould be delayed, women (hould never recover 
their dowers, to have the fruits and benefit thereof For the te- 
nancy might be in an infant, who never would appear, but fuffer 
the judgment to pafs againft him by default, and have it afterwards 
rcvcrfod for this caufe. — And Popham faid, there was not any 
difference betwixt a writ of dower j and another precipe. For a 
rtcovery againft an infant by default, is good in both cafct ; for it 
would be mifchievous if the demandant, who hath right, (hould 
be delayed of her right, becaufe the tenant is an infant, and will 
not appear : for if that fhould be fuffered, all land whereto ana- 
tiicr hath right of aftion, would be put in an infant, againft 
whom there could not be had a good recovery ; and it is not as mif- 
chievous on the other fide. For if an infant, having right, lofetli 
it, he may have his writ of right. 

Gawdy faid, although it were a greater mifchief, yet it is to ht 
Offered rather than have the law to be changed^ unlefs it be by 

j^arliamejit ^ 



S68 Trinity Term, 39. Eliz. In B. R. 

Will JAMS jiarllamcnt ; as, at the common law, le par9l demtirrcra for the non- 
wTlx^mj ^^ ^^ ^^ demandant, which was mifchievous unto him ; and 
fLLXAMs. therefore the ftatute of Glocejier^ c. 2. was made to redrefs it : 
and fo of otlicrs, &c. — Clench agreed with Gawdy ; for it 
would be dangerous to compel infants to appear, and plead, who 
^ know not their own title, efpecially if they have the land by de- 

fccnt. But if it may appear, that an infant hatli the land by pur- 
chafe, that privilege peradvcnture would not then be allowed 
him ; becaule the tenancy might purpofely of covin be put into 
him, to delay the demandant. Wherefore, &c. 

Fenner as to the fccond error held, that he might well aflign 
See 1. Borr, ^^ ^^'^ error, to difcharge himfelf of the damages : but the other 
36a. * * Jfuftices did not fpeak thereto. — Scdadjournatur. 

CAf« a. Rivers againft Oodfkirt. 

Trinity Term^ ^S.EIix. Roll jg\. 
Txwet Ecs for pRROR of a judgment in the common pleas, in an aftion fur 
•money in a ^ trover. The plaintiff declared, quod cum poffeffionatus fuit de 
porfe^'irfif ^q1^ Ij^ quadam crumena exi/ient. ut de bonis fuis propriis^ and loft 
ihou/h ^c" on- *^"^ ' and the defendant found, and converted them to his own 
^crfion be al- "fe, in reiardationem executionis tejlamenti^ to the plaintiff's daniage of 
ledged in rctar. 40I. The defendant pleaded not guilty ; and found for the plain- 
^nWiff ««fij/»- tiff, and the jury aftefled for damages 40I. and for cofts 20s. 
MdlhcTuiJj* and the plaintiff had judgment accordingly, and thereupon error 
may find dama- Was brought. 

gcs to thefum The firft error affigned was, Becaufe he alledgeth not that he was 
bid, and coftt poUcflcd of a purfe, but only of 40I. in the purfe, and the converfion 
^^^^' IS alledged ot both, and damages given entirely for both.— S«/ non 

FoiL W6?* allocatur. For it Ihall be neceflarily intended ; and fo is 21. Hen^ 
I. Saund. I «• 6- '» Detinue. 

Secondly, Becaufe it is alledged, that he was ^ poflcflcd of 40I. 
ut de bonis propriis^ and that the defendant converted them in rctar- 
dationcm executionis teftamenti\ wjiich is contrariant, &c. the goods 
being his proper goods, that they (hould be converted in retarda^ 
tionem^ fcfr. and for this repugnancy it was ill. — And of that opi- , 



nion was Fenner, 7^/Vf; and in proof thereof relied on 25. Ed, 3. 
fU 40. and Sale\ Caje^ 31 . EU%. But ail the other Juftices e contra \ 
for the executor is polieiled of the tcftator's goods as de boruifuis 



propriisy and fo may declare ; and yet the converfion of them is in re- 
tardationem executionii tejiamenti. And this exception was taken in the 
countefs of Rutland^ s cafe in this court, and yet held to be good : 
for thefe words are but furplufage, which do not abate tlie count. 
The third error affigned was, Becaufe he counts but of 40I. da- 
mages, and the damages and cofts affigned by the jury exceed 
W lO'Co. 116. the fujn -v^hcrebf he declares ; which ought not to be, and there- 
^•"^•^•P*"^ fore it is erroneous: and to that purpofe, 13. Hen. 7./>/. 16. 18^ 
Owen, 45.'* ^' HeH. 6. /»/. 17. and 2. Hen. 6.pL 7. were cited. — Sed non allocantur ; 
Kelw. XI, for tlie damages ought not to be afleflcd more than whereof tlic 
Yclv. 45. plaintiff himfelf hath counted. But becaufe the fuit might for a 
r^^Dam^'e ^^^g w*^^l^ 1^^^ ^^pc'^^^d, they may be further afleflfed and in- 
Bro.Dam.'a. * cteafed ; foT non conjiat zX the time of the declaration what the 
Saik.ao7. cofts of fuit would amount to. But if the damages and cofts had 
Cro. Jac. 297. been entirely aflfefled at more than are mentioned in the declara- 
^»?*rS*^* ^ ^'^"' ^^ ^^^ ^^" ^'^ * ^^^ "^^ row/?^/ but that the damages exceed 
Bean b,r7 ^^ damages- mentioned in the declaration {a). Wherefore it was 
Hiii.'i773. * adjudged accordingly, and the firft judgment affirmed. 

Web 



Trinity Term, 39. Eliz. In B. R. 5^ 

Web agatnji Poor. Caie 3. . 

ACTION for thcfe words : " 1 will call him in queftlon for in flandcr iti» 
" poifoning my aunt, and I make no doubt to prove it." — ^ "^'f a^ 
After vcrdia for the plaintiff, it was moved in arrcft of judgment, l^l^l^^^ \^^j^ 
that the words were not adionable ; for it is not any direft affir- plaintiff ihoul4 
ffiation that he poifoned his aunt. Sed non allocatur ; for it cannot aauaily have 
kmoredircft when he faith, "He will call him in qucftion," and happened., 
*' makcth no doubt to prove it." — Sccondlv, it was alledged, that po^^^* 
thcaftion lies not, bccaufe it is not averred that his aunt was poi- ^ n^^i^fL 
foncd ; for otherwife it is not any offence. Sed non allocatur ; for ^^^ ^ * ^^ 
his credit is impeached, although he never did any fuch fa£t ; as Cro. Jac. 33 u 
to fay, " that he was perjured in this court," although he never 489^ 
were iWom, is a&ionablc. — Wherefore it was adjudged for the '• Y,V^^' "7» 

501. 509. 513. 
Yielding agahift Fay. ' Ca$i4. 

Trinity Term, 36. Eliz, Roll 948. 

ACTION upon the cafe againft the defendant, as parfon of itisagoosJ 
^ parleys in the county of Southampton, Whereas within the ^"^^^^ ^'^f.^ 
faid parilh there is a cuftom, that the parfon there, at all times of rTk«l>" buij 
'iie year, had ufed to keep within the faid parilh a common bull for thcufe oftht 
2nd a common boar, for the common ufe ot the kine and fows of panOi. And to 




tlicrc; by reafon whereof the plaintiff, being an inhabitant there, y*«re. 
hid loft the increafe, &c. The defcnd^ntj protejlando that there is not i. Roil. Abr, 
any fuch ctiftom, pleaded not guilty. And thereupon the plaintiff 109. 559. 
demurred ; for in an aftion for a nrjn-feafancc^ not guilty, it is not -^'^'',555. 
iny plea; for there be two negatives, vvlilch cannot make an iffue, skL^to*.'^** 
fiomore than two affirmatives ; 32. Hen, 6. pL 23. But in an buU.n.p. 7j« 
iclion for a mis-fcafana it is otherwife. — And ot that opinion UougLao;. 
7crc THE Court ; and that it is a good and icafonable cuftom ; 
and that every inhabitant who hath prejudice by the not keeping 
of the bull or boar, may well maintain his aftion. — Wherefore it 
was adjudged for the plaintiff. 

Sedburrough againjl P^aunt. Ca$« 5. 

. Michaelmas Term, 38. ^ 39. Elix. Roll 155. 

ERROR of a judgment in the common pleas in debt upon iw« '" <<ebt.if an 
/vw/«/w-mfl/i/i.— The error affigned was, That the defendant, at ''^^^l^'^^^^l^ 
fc time of the judgment, was within age, and appeared by attor- "^^(^IZ'^an! 
!!£}•» whereas he ought to have appeared by his. guardian. And upon judgment m^y 
^f^fcire facias two nlhils were returned ; whereupon it was prayed, *>f rcvcrf-d after 
^'iit, for this caufc, the judgnieiit might be reverfcd. — And by h'»f°"=se- 
GAWDYand Yzm^ZK(catcrisju/luiarusabfentibus) it was therefore '-Ro.Ab. 217. 
ft'trfcd. For Gawdy faid, if he were within age at the time of ^'^ V^J"* JJ^^" 
facjudgnvrnt given, although he were not fo at the time of the 3.Atic.7ii. * 
trrcr brought, it is rcverfablc, and is triable per pats \ and not like 5 Com. Dij. 

Cio. EHZ. PAKT II. Q.<1^ tp W' 



57^ ' Trinity Term, 39. Eliz. In B. R. 

•^£D8u«»ou«H ^Q an error upon a fine, or a ftatute acknowledged by one withiil 

KAVilr. ^^^ ' ^^^ ^^^^y ^^^ ^^^ reverfablc but by infpcftion. But here, in 

Co. Lit. 3S0. b. regard the defendant made default upon two nihils returned, it is 

1. Sid. 32i. not now triable, but it is a confeffion. — Wherefore it was for this 

caufe revcrfed. 

Ca8i6. Bradfhaw agahijl Eyre. 

Hilary Term, ig.Eliz. Roll ^^l. 
ir A has a ^T1RESPASS de claufo fraih in Abney, The defendant pleads, 
houfewuh 1 That loM time before, &c. one iV/VAoA2i ^tfr/^^w was feifed 

«<»/// in the Uiid$ <^f"^e place WHERE, &c. ui lee; and that one Liodfrey Fuljamb 
of B. and was feifcd in fee of an houfe, and twenty acres of land in Abney 
<onvey$ it to 5. aforefaid ; and that the faid Godfrey Fuljamb^ and all they whofc 
the t>id rig^t of eftate, &c. have had for him, his farmers and tenants of the pre- 
exUiTguiihed by ^^^^^^ common in the faid place where, he. for all their beafts,at 
the' unity of all times of the year, as to tlie faid tenement appertaining; and 
porrcflion ; but that the faid Godfrey Fuljamb infeoffedof tlie faid tenement the faid 
if-ff.ltafcsit, JsJic/jolas Ba^Jkaw \ and that afterward the faid l^icholas Bag/ha'tv 
"'common*' ufeJ ^^^ ^"^° ^'^^ defendant the faid houfe, and twenty acres of land, 
i< titcrcwiih " with ^* all commons, profits, and commodities thereto appertain- 
it Is a good •' ing, vel occupat, vel ujitat, cum pradi^o mejjuag'to : and thereby 
grantofairtw juftifies the putting in of his cattle to ufe the common, &c. It 
durirT^th'-'"'"^" ^'^^ thereupon demurred ; and the matter in law vras-only, Whe- 
Port?^704. *'"* ^^^^ ^bis common, being extinft by the unity of pofleflion, may be 
i^>r / ^r revived by any of thoie words ? or. Whether it may not enure as a 

Moor, 462. 667. ^ c^ rr \ a ^ i! r^ J 

Hob. i-i. 23'. "^w grant ot common for fo many years r — And by (jawdy ana 

X90. ^ ^ Fe^n^iek {?ovH AM SLndCh'E'NCH abfentibus) it was held clearly, 

Co. Lit. 122. that this common was cxtinguiflied by theunity of pofleflion, itbc- 

t c^ 37' ing common appurtenant, and cannot be revived again, although a 

Owen'Li.^ feoifmentliad been made of the land. Gawdy faid, that fo it is 

Show.' 350. of common appendant ; and, as to this purpofe, there isnot anydif- 

4. Mod. 365. fercnce betwixt them. But they held, that by the words of the 

Carth. 342. Icafe, •* of all commons, profits, «&c. occupied or ufed a/m meffua- 

6*Mod^i' " ^'^' ^^"" ^^ *^ ^ S^^^ grant of a new common for the time : 

2. Vcrn. 2%. ^^^ although it were not common in the hands of the feoffor, yet it 

2. Ld. Raym. is quaf common ufed therewith ; and although it be not xhtfame 
1225- common it was before, yet it is the like common. But becav.fc 

there was not a fuflicient averment that this common Tvas ufed by 
the leflTee at the time of the leafe, it palled not. And it was there- 
fore adjudged for the plaintiff. 

^^" 7« Wifeman agahjjl Gennings. 

Trinity Term, 48. Eliz. Roll 505. 

^vir'^fuffercd T PO^ ^ ^P^^^^^ ^^^^^'^ ^^ C^^« W^^' *^^ -^- ^^"^^^ ^^^ ''^^* '^' 
by tenant' kr mainder to B, in tail, remainder to R. in fee ; A. fuffers a 
life,whavouches common recovery with voucher to 5 ; A. dies ; M. dies without 
rhc remainder, ifiue. Whether R. fliall avoid tliis recovery by the 14. Eliz.c.i.^. 
"^^^Xthl^ul"^^^ the queftion (a).— Popham. It hath once been here 
iniairand the ^^j^^o^^ ^ good recovery to bind the remainder in fee, 
remaipHcriniee. notwithilanding the 14. Eliz. c. 8 And being brought into 
s.c.Ant^jjei. the exchequer-chamber, all the Justices agreed with the 

3. CO. »v. V. ^ ^^^ p.g ^^^^ ^^^ ^^ ^ ^ g^^^ ^^^ ^^^^ ^^ Term Kcp.j4i> 

(«) See 14. Geo. 2. c. 20. f. 4. 

4 judg-* 



Trinity Terrn^ 39. Eliz. In B. R. 57* 

jbdgisent for the matter in law ; but reverfed it for the fonn. Wiseman 

-And to that opinion the whole Court now agreed, and ''i^'ift 

would not hear anv further argument in tliis cafe. Wherefore Gekninci, 
it was adjudged for the plaintiff. 

Southwel againft Brawn. CahS^ 

Michaelmas Term, 35. ^ 36. Eliz, Roll 14 1. 

pOVENANT. The plaintiff declares, that the defendant, per A declaration ia 
^ fcriptum articulorum^ betwixt the faid defendant on tlie one «>^nant that 
part, and the plaintiff on the other part, convenit, Isfc. After ver- ^^^ defendant^ 
iiSt it was moved in arreft of judgment, that the declaration was {;^i^X'*agrced 
not good ; becaufe he doth not alledge tliat the writing was/i*- without fayins 
pHa dffendentis Jigillatum, But Glanville moved, that it need- fgilUt, it bad. 
cdnot; for it is per fcriptum fuum faflum^ l^c, convenit^ lie, and Poft'737- 
therefore the fealing and delivery (hall be intended ; for it cannot J^q]^^* ***^* 
hifadum without diofe circumftances. — ^The Court faid, if this vcnt.^o. 
v!oxAfaffum were in, it might peradventure be good for the rca- 3. Lev. 34?. 
fens before alledged : but becaufe, uoon view of the record, it ap- '• Saik. 141. 
pcaredthat this yf ord faff urn was left out, and it was only as it is L^'-R^y'"' 1^7* 
b?forc recited, it was adjudged for the defendant, that the declara- J^^'e.'*'*^' 
tion was not good. Scra.'8i4. 

John Rogers againft Gravat, Parfon of St. Pulcher's. c^" 9* 

A CTION for tliefe words : " Thou art a witch and a forcerer." ^i^ctandlfor- 
•^ After verdift it was moved, that the words were not a£lion- ger^ *'^^* ^^' 
aWe.— But the Court rctolvcd e contra. For Gawdy faid, if he aaionabie, 
Vitcheth men fo as they die, it is felony (a) ; and if he ufe witch- ^'ithout /hew- 
craft in any other manner, he fliall ftand upon the pillory : fo, in *"^ ^^*^ ***- 
every refpcft, it is a flander, and a goodcaufe of adtion. Where- Amc, 141. atx, 
fore it was adjudged for the plaintiff. ^gp.' ' ** 

Cro. Jac. 531. I. RcU. Abr. 44, 45. Jones, 325. 3. Lev. 394. i. Hawk. P« C. ch, 3, 
(«} Vide I. Jac. i. c. 12. repealed by 9. Geo. 2. c. 5. 

Gervis agaittfi Hailewel. Case io. 

PROHIBITION. A fentence in the fpiritual court at Z//rA-i The kin* may 
field y^zs had againft the plaintiff, who afterwards appealed to grant a commif. 
tbc Arches^ where tlie fentence was affirmed, and adjuclged againft |?'!*^( review, 
the plaintiff: whereupon he fued a commiffion to the delegates, ^? u^ ^t' ^ 
and the matter was re-exammed, and lentcncc then given for the 19. fty., the 
plaintiff. And thereupon another commiffion was fued forth to fentence of th« 
rc-cxamine this matter. And now a prohibition was prayed to <*«'egaics (hail 
day this : for it was faid, that by the 25. Hen, 8. c. 19. it is ap- p^^"^,^ 
pointed, that a fentence before the delegates- fhall be final ; and 
then this fecond commiffion is not well awarded. But it was Hob*^*! 6**^^*' 
thereto faid; that the queen hath by law an abfolute power to ^ juft^34x. 
grint commiffions to re-examine, which is not reftrained by the a.Ro.Ab. 233. 
lyHen. 8. c. 19. and that it hath been fo ruled before thefe 6. Co. iS. 
times. — Of that opinion was Popham, but, becaufe it was anew ^'.}^^' ^^'*' 
cic, they would advife thereof. Canh.*463. 

Comb. 356. 4. Bac. 'AbT.\fo. 

Rogers agiiinji Bird. Ca„ „. 

T^EBT upon an obligation. The defendant pleads to iffue, and An error in the 

it was found for the plaintiff. After verdift it was moved '^.^"'^"°^'*^*'* 

ii arreft of judgment, that the venire/acias was returnable die Sab^ Zi\a!^MX 

ler tcidi^, if propttly awat Jed on ilic roJi — Aalc, 433. 2. td. Ray.-n. 1064. 1. Term Rep.783 . 

QL^% batli 



'575 Trinity Term, 39. Eliz. In B. R. 

.R.OG Ri hnthi pofi Ofiab. Trin, and the Jl/inngas iffxktd bearing date the 
yifif/ day after trtf/?/«© TrimtatiT^ and trial had thereupon. — And bc- 
BiKo. caufe it was without warrant, being before the return of the venin 
facias^ it was therefore ill. But becaufe, by the roll, the venirt 
facias was awarded returnable craftim Trinltath^ which is the war- 
rant to make t\\c venire facias^ and was well aw^ardcd, and it wa» 
the default of die clerk, wLo did contrary to the roll, it might be 
well amended. Wherefore it was ruled that it fhould be amended 
according to the roll. And the plaintifF had judgment. — ^But Pop- 
ham faid, if the trial had been upon tlic venire facias it was crro^ 
neous, and liad not been amendable. Fide 7. Edw* 4. pL 15. 
2. Rich. 2. pi. II. 
Case 12. Harvie againjl Ofwel. 

Jntii E after ^g. EI/Z' Page ^^2* ^^ 4» 

On a conaitioh TpHE cafe was now moved again. — Fennbr, yvjlicey held, thal^ 

lo rtenttr for >■- the plaintiff might well enter, notwithftahdnig his acceptance 

ncn.payment of the rent ; bccaufe he had not any notice of the breach of the 

tanoTof rent at Condition. As ^. Edzv. 3. ** Releafe" II. tenant infeoffs his fon 

a fubfcqucnt and heir, and dies ; the lord accepts the rent from the heir, nothav- 

daywiiictifpcnfc ing notice of the feoffment, yet he Ihall have his arrearages and re- 

with a breach of ij^f^^ g^ ^^ ^;^^ ^^ ^;^^ ^^Jmrnmenty* where a feme grants a rever- 

AnwT'^'t ^Tij. ^^^» ^^^^ xzk^^ the grantee to baron, the tenant pays the rent unto 

,--3/ ' * him, not knowing of the grant, this is notany attornment. The 

Moor, 456. condition alio being coUatcial, the acceptance of the rent is not 

3. Co'. 64- any bar. — Gawdy, 7'f/^'«^^- There is not any difference betwixf 

Co. Lit. 2ii»b. a condition annexed for non-payment of" rent and any otlicr con- 

t. Roll. Abr. dition ; but, in both cafes, if the Icffor accepts the rent which is 

C'o' Tic. to?. ^^^ ^^^^^ ^^^ condition broken, it difpenfeth with the condition 

Covip. 24.3. broken, if he had any notice at that time of the condition broken : 

247. but here, becaufe he had not any notice of the condition to be 

DourI. 50. broken, ^s it is confefled by tlie demurrer, and by poffibility he 

a. Term Rep. ^q^jj j^^^ ^jjj^g notice thereof, it is not any difpen&tion with the 

^^* condition ; and thcfefore no bar to his entry. But if the leflee 

had aliened parcel of the term, and the leffor had accepted the rent 

from tlie alienee, tliat would have affirmed the leafe ; for thereby 

he took notice of the alienation. Wherefore, &c. — Pgpham 

continued his opinion as before — ^And thereupon it was adjudged 

for the plaintiff. 

Cai« 13. Bate agaiiift Rookwood. 

Eajler lerm^ 39. Elisa. Roll. 97. 

forfworn'fci- T^R^QR of judgment in the common picas, in an aftion for thefe 
Tow" are not words : ** Thou art a forfworn fellow \fpr by tliy falfe oath tliou 

aftionablc, ex- «« haft hanged as true a man as thyfelf." The error affigned was, 
cept by fubfc- T^^t thefe words were not aftionable. — But all the Court held 
a™TaA^ the contrary^ ; for although tlie tirft words, " a forfworn fellow,;' 
f:4'Mfari„2: ^^'^^^ ^^^ maintain an aftion ; yet when he declares, that by hi» 
would beperju' falfe oath he had caufed a man to be hanged, that cannot be in- 
'^' tended but to be a falfe oath judicially taken in evidence againft t 

^ntc» « 35- prifoner. And the words *• tliou haft hanged," Ihall be conftnicd 
A« Jag. ac4. ^^ j^^^ u ^j^^^ j^^^ caufed to be hanged." Wherefore it was award- 
ed^ that the judgmetit fUould be affirmed. 

ANOTHIlt 



Trinity Term, 39. Eliz. In B. R. ' 57? 

AxoTHER EXCEPTiQii was taken: Becaufc the declaration Bat« 
ns, qu'd fropahvit qUadam fcandaUfa verba^ prout in bis jingli- »s»*ifi 
ams verbis /fluent, viz. ** Thou, &c.and it may bethewo^ds were Rookwood. 
ipobn la another language, which they who were prcfent un- "°j!jf ^'^ 
(krflood*not ; and then there is not any caufe of aftion, as it ^,^i2*fa .h« 
hath been adjudged before thefe times.— S^^/ non allocatur^ For it declaration, 
lyi be intended, that he fpake AngHcam verba. And the words, foft. 64 V 
fmt in Us jinglicanis verbis fequent, is tantamount as if he had t.Ro. Abr.86. 
fed, bac An9li€am verba fcauentia. Wherefore it was adjudged, 3«Mod. 71. 

^ . . ^ ^ . , B. R. H. 305, 

Blumneld a^ainft Rofewirh, 

t*» rt» i^K%l, 14- 

Ante^ Eafter iertrtt 39. Eliz.. Plac, 10. 
T HE cafe was now moved again, and recited to be fuch : May ^^ ifjudgmcnt 
and jB/j/m^rA/ were obliged jointly and feverally to the de- Jjf debt be ob- 
itmdant; he fues tliem feverally by feveral bills, and had judg- uined •gainft 
mcnt againft them feverally, and afterwards fued a r«^iVw a^^-'"*" joint and 
tiifaciendum againft Mavy wjio was taken in execution, and the Ihc- ^^11^^^^^^^^ 
riff fuffercd him to eicape ; and afterwards he fucd exQcution *„ execution ^ 
againft Blumfirld^ who, being thereupon taken, brought an audita and eicapcs, 
muby comprifing all this matter : and, Whether it lay or not? was whether cxccu- 
ticmurred in law.— Gawdy and Fenner held, that the execution '*°1 "" '^^ ***^ 
was well fucd againft the plaintiff. For the difference will be, *f^*^y "'*" 
where one is dilcharged out of execution by the aft of the party s.C. Ante, 478, 
himfelf, to whom he was indebted, as by a releafe or making him 555. 
his executor, or the like ; ^nd where one is difcharged by his 5. Co. Sf.b. 
ownaft, or the aft of a ftranger, as by the flieriff's permitting Moor, 19. 459. 
him to efcapc : for in the firft, it is a difcharge for both ; but it ^'■^' J*^' 53*' 
is not fo in the laft. And if one of them die in execution, it is cro.'c^r.'ys. 
not any difcharge for the other. And if they were fued by one i,RoU.Re».9» 
original and fevcral pracipes^ yet he might have had feveral capias i.Ro. Ab,89^ 
f^d fatisfacierulum againft tliem ; and fo both fhould be in execu- i«B*c.Abr. 
tjon at one and the fame time ; as 29. Hen. 8. is. And although ^^^* 
^c entry upon fuch a record is, quod unica fiat execution yet that 
Ihall be intended to be an execution with fatisfaftion, But 
when they arc fued by feveral originals, or by bills, as this cafe 
is, there is no queftion but that feveral executions might be 
iucd. Wherefore, &c. — Popham conceived, that the plaintiff 
iHould be relieved : for the obligee hath taken againft his compa- 
nion as great fatisfaftion as poilibly he might have ; for he being 
«a execution and difchargcd, no new execution might be againft 
him of his body, goods, or land, &c. Andbecaufe it is an execu- 
tion with fo great fatisfaftion as may be, the other fhall not be 
charged. But I agree, when the one is in execution, that the other 
may be taken in execution, when they are fued by feveral origi- 
r^ab, or bills ; for non conjlat Curiity tliat it is all one debt : birt: 
when they be fued by one original and feveral pr^cipes^ I doub^ 
^aat when the one is m execution by a capias, whether the other 
niight be taken by another capias. For it appears to us upon the 
accord, that all is but for one debt ; and tlie entry of the record i$^ 
^^d unica tantH ifiat executio. And it is clear, that if one of them 
l>i taken bv a capias aa fatisfaciendum^ 2l fieri facias or elegit cannot 
(^awarded againft the other ; and fo is 4. Edw. 4. pL 38. 5. Edw. 
4Jp/. 5. Et adjbuf'natur (a). 

l«) In the report of this cafe, Moor, 459. h U fald to have bten ultimately adjudged 
In Ut^t of Po9R AM't opti^ae. 



S74 Trinity Term, 39. Eliz. In B. R* 

^^"*^ Morgzn againft Wye. 

Trinity Term, 36. Eliz. Roll 1074. 
Iftheftcriffre- TERROR in the cxchcqiior^chambcr of a judgment in the quccn*s 
turn a to/« after Hj bench. The crror affigncd was, BecaufcBie venlrefacias was 
hKb^lw^tZ awarded to the coroner for confanguinity in the fheriff;and it was 
ed to coroners, returned by the coroner, and afterwards a tales was awarded, and 
itwiiibeeiTor.it was returned, by the fheriff. And it was tried, andaverdift 
Vod. 586. given, and judgment. — ^And for this caufe held to be erroneous, and 
Yclv. 15. not aided by the 32. Hen. 8. c. 30. or iS.Eliz.^ c. 14. («). Where- 
^^^^3^^' fore the judgnaent was revcrfed. 

(«) Sed vide %i. Jac. i. c. 13. 

Trinity Term, 

39. Eliz. In the Common Pleas. 
Sir Edmund Anderfon, Knt. Chief Juftice^^ 
Thomas Walmfley, Efq. 1 
Francis Beaumond, Efq. > Juftices. 

Thomas Owen, Efq. j 



Case x. 



Willis again/} Stroud. 

An aaion for /\ CTION Upon the cafe. Whereas the defendant recovered in 

maliclouny (o- /^ *^^ ^^"^^ againft the now plaintiff in debt, of which 

ingoutaw./a. X ^ judgment the plaintiff now hath brought error in the 

pending a w.it q^jgen's Dcnch ; and by reafon thereof the record was removed 

^^'•eTSthw^ ^ 5"^o ^^^^ queen's bench ; that the defendant notwithftanding, well 

^hcrethZa./a. knowing thereof, had taken forth here at ff'ejimiriflcr a capias ad 

v/3is(Me6o9t,oT fatisfadendum direfted to the fheriff oi Dorfet^ by reafon whereof 

v^herc the party ^jjg plaintiff at D, in the county of Dorfet^ was taken in execution. 

was arrdled. y^^ defendant pleads to iffue, andit'was found againft him. And 

^°c b a itwasnowalledged in arreft of judgment, Firft, That the aaion 

I>yer^ 38-4*'*' is not well brought \n Middle fex ; for the tort was in the county of 

3. Lev. 114! i>(?r/i>/,bytliet3kinghimthereincxecution. — WALMSLEY,BiiAU- 

^^^* MOND and Owen held, that the bringing of the aftion in M?ddlf- 

Cro. Car. 20. r ^^.^3 ^^^jj enough ; for the ground of all the tort is the fuing 

^%n^^\ii. out of the capias, which was here in Mddlefex^ But Walm- 

Bay. 458. " sLEY heW, thai the aftion lay not, unlefs it be'alledgcd, that it was 

Strange, 776. purchafe^i in an undue manner by fraud between the defendant 

Cowp. 176. ^^^ others, and without notice of the Court; for if it wercgrant- 

a. Term Rep. ^^^^ ^j^^ Court, he is not punifhable. But Beaumond and 

**'' OwLN held, that the adionwell lay; becaufe it is alledged, that 

he, malicioufly intending to charge him, had purfucd tliis writ, 

&c. — Anderson ahfente^ adjournatur* 

Ca,i ,. Wythers againft Rooks and Smith. 

In npltvin a- "D EPL^VIN. Thv, parties were at iffue. Rooks afterwards died. 

g"nfttwo,ifonc -tv ^j.^j it was Ihewn to the Court, and moved, Whctlicr the 

ofihem die ..ites ,^^,j^Qi(. ^yrjt fliould abate, or not? — The opinion of ail the 

smtcjoined. yet ^^^j^^ ^^g ^^at it Ihould not abate, but ftand good for 

the aflio.i ihall ^ , /-. t>- ' 

furvive.— Ante, 145* Poft.6z5- Cro. Jac. 19, i. Com. Dig. 57. ^ 

the; 



Trinity Tcim, 39. Eliz. In C. B. 575 

the other. And Walmsley faid, he had known it to ^vTRitt 

have been twice fo adjudged in his time. Wherefore, &c. j^^^^l'l^ 
ridi Dyefy 175. a. Smith. 

See 17. Car. 2. c. 8. an4 8. & 9. yTtiX. 3. c. lo. 

Pilkington againft Dalton. Cah j. 

rjEBT. Upon a fpecial verdift the cafe- was, A parfdn made a An* executor 
^ leafe for years, rendering rent at Michaelmas^ or within a month cannot recover 
after. The leffee enters ; and the leffor dies within ten days after his^lj^ar^^^ ^^ 
Micbaihnas: Whether the executor hath any remedy for this rent ? jj^, f^ blcomc"* 
was the queftion. — And it was ruled, that he h%d not ; for the rent due before his 
was not due in the teftator's time, nor until the end of the month. <ieatb. 
And in fuch cafe it hath been adjudged, that fuch rent belongs to *^"^°» S^J- 
the heir, where' it is referved by a lay perfon, and he dies after ^°'^^* **8.l>, 
Aficbaeimasy and before the montli ended. Wherefore it was here y^iv^Te ^^^ 
adjudged accordingly (a). ,. Saund^Vs?. 

{a) By 11 Gto.x, c. 19. f. 15. where payable, bis executors or adminiAracors may 
an; tenant for life iliall die before the day recover xhc rent in proportion to the time 
on which any rent determinable by the cbpr>;d. 
death of fuch tenant for life (hall become 

Ordwey againjl Godfrey. Case 4, 

EaflcrTermt 39- £iiz* Roll i^zi' 
CCIRE FACIAS againft an adminiftratpr to have execution of a To ^fdrtjadat 
^ judgment againil the inteftatc. The defendant pleaded, ^ko^^ againft an admi- 
rndla habet bona quit fuerunt sntcjlati tempore mortis fua in manibus p^^^aior on a 
fuisadmimjiranda^ nechabuit die impetrationis brevis, nee un^uam pojlca. ^^^^^^^^^ 
It was thereupon demurred. — And held by all the Court, that it cannot plead 
was not any plea; for a judgment cannot be anfwered without f/w a^««i)7r4- 
another judgment : and it may be (he had adminiftered all the *"'- 
goods in paying debts upon fpecialties, which is not any admini- ^^^* *^^ 
llration to bar the plaintiff; or, as fome faid, it may be (he had 4-Co. 92.b. 
paid debts upon a ftatute or recognifance which are not allowable 5-^* *^'**- 
againft a judgment. But Anderson denied it ; for there is not moot'JcS. 
any priority of debt upon record, unlefs in cafe of the queen's stiJe$* 56. ' 
debts, which is firft to be paid : and here the defendant ought to Raym, 230. 
have pleaded (pecially how (he had adminiftered. Wherefore it *• ^'^^' n^ 
was adjudged ^r the phintifF. ' li^^::^l' 

1. Salk. 296. Ld. Ray. 3. Sed vide Allen, 4S. 4. Mod. 296. wliere this cafe is denied to be law.-^ 
Secalfo Went. 137. and Skin. 56:. 

WoUey againft Bradwell, and his Wife, Executrix of 

Sir Thomas Manners. Case 5* 

T^HE defendant pleaded outlawry in the teftator, 29. £//«, not in an a^ion by 
'*' reverfed. And it was thereupon demurred. an executor, it is 

Hern, for the plaintiffs moved, that it was not any pica; becaufe ri^l^'thcTerSttr 
(admitting it to be a plea) it (hould be in regard the teftator, being ^,5 outlawed, 
outlawed, could not have any goods but they appertained to the Poil.Ssi. 
qacen', and then the executors might not have any goods to fatisfy. grown!. 55. 
But that is not fo ; for the teftator might have a debt due upon a Hutt. 53, 54. 
contrad, which is not forfeited ; or it might he, that the teftator Swinb^ 366. 
devifcd lands to be fold by his executors, which are fold ; money *• Y*"^ »H* 
ii aff^ts in their hands : and in 3. Hen. b.fl.i'j.i^ 32, it is holdcn . 
to be no plea. 

Qji 4 And 



57^ Trinity Term, ^g. Eliz. In C. B. 

WoLLitT y^nd of that opinion were Walmsley and Owen ': for a per-* 

B»Afwfctt, ^^^ outlawed may well make a will, and have executors, and the 

executors may have aflcts to fatisfy over and bcfidcs tlic goods 

forfeited to the queen ; as in the cafes before put, ^nd in others of 

the fame nature. 

But Beaumond i contra ; for the bar is good to a common in-* 
tent. And thefe kind of aflits fhall not be intended, unlefs they 
be fhewn ; wherefore prima facie the plea is good. — tAkpersoiv 
ahfente^ acfjoumatur. 

Afterwards, for defeft in the pleading^ without regard to the 

matter in law, It was adjudged for tlie plaintiffs 8. £4w* 4. pL 6. 

21, Edw. 4. pi. S' 39' Hen.6: pL2T. 

Casi «• Coniers, Sheriff of Durham's Caf<^. 

Debt will He for T^EBT Upon ail efcape. The cafe was. That upon a rcconu- 

•ncfcapc, a!- xJ fance in chancery, die conufee fued execution by a capias ad 

li^l'??,?!!?*^' faiisfaciendum^ by force whereof the conufor was taken, and efcapT 
rant was crro- ''m*'t%\%^\^\ n tv • 

ji8oo$,ifltcon- cd, and debt brought thereupon. — Savel moved, that 9 capias 

tlnues unrever- lay not in this cafe ; and there the fherifF is not charge^ble» 

fed. Whorefore, &c. — The Court held, that the capias adfatisfa^ 

Ante, 164. iS8, ^i^^^^^^ ^^s crroneoufly awarded ; yet the party being taken b^ 

Cro. jac. 3. force thereof, it is a good execution for the party, as long as it 

«.^n^5l. continues unrevcrfed ; and the Iheriff is chargeable for the efcape. 

td. Rayin. 397. Wherefore it was adjudged accordingly. 

«530. 

Stra. 509« Sao, zx84. 2. B^c- Abr. %ii^ See 8, & 9. Will. 3. c« 26. 

CAti 7. Jobfon's Cafe. 

A contin ent lOBSON deviftd certain lands in Newcajik in tail, the remaindcf 
dcvife to^thc J ^^ ^^ ^^^^ ^f ^^^ ^^ of his name. At the time of the devife 
ficxtofkinof the next of his kin was his brother's daughter, who was then 
thenamt fhaiigo married to J. S, The dcvifor died ; the tenant in tail died aftcr- 
^y^^^^^^^^^ wards without iflue ; Whether this daughter Ihbuld lisiye thelandJ 
Imme at tL\imt ^^ ^^ queftipn UDon a fpecial Y^rdift. — And adjudged without ar- 
•/ the dtvife, gument that Ihe ihould not; for Ihe is not now of the name of 
though changed tlie dcvifor, but of her hufband's ns^me. Bijt if fhe had been 
by marriage be. unmarried at the time of the devife and death o^thp donor, al- 
r ncr^pw^^^^^ though Ihe had been married at the time of the death oif the tc: 
Ante, ss^r ^^^^ 5n tail without iflbe, yet (he fhould ha^ve hgfd the land. 
x.Vc2cy,84. Wherefore it was adjudged accordingly. 

335. 

I. Bl. Rep. 6oi. Bro. Ch. Caf. 32. 3. Atk. 759. %, Salk. 570. Pigot on Recoy. 197, 

Cms «• Anonymous. 

. . A DEDIMUS POTEST ATEM was awarded to take the co- 

a fine may be nufance of a fine of four perfons. The commiflioners return 

taken of one of thc comifance of three only. It was moved to the Court, what 
thepartifsatone fhould be done to make this to be a fine againil thofe three. And 
time or pi.ice, two of the curfitors were called into court, and oppofcd. Whether 
cil'^^'ifere'**'*^ ^^ ^^^^ of the fourth might not be razed out of the dedimus pouf' 
iixhR^imus be '«'^w> ^nd make the writ of covenant to accord ^herewitli ? And 
totakeoffcur, it was aiifwerpd, that it might be done vprj- well, and that itha4 
and It be only 

taken of three, the other refufin^, it (haU be good for the three, Rutt. X}5. Cro. Jac. ix»7^* 
ft. BiB. Abr. u8> CruiieouJinss, Bo» -_ 

. . • bopn 



Trinity Term, 39.Eliz. InC.B. sij 

Veen fo done abeut thirty years fincc : ^d it was fhewn to the Ahohtmowi, 
Court, that a deeKntus ppteftatem was awarded to take the conufance 
of a fine froip i^ron ^nd/^fi ^^ th^ conufance of the iaron 
onlf W9S returned, and tbe^m^ would i)ot ^icknowledge it : and 
the now lord keeper, upon this matter fliewn unto him, ordered^ 
tittt a new dedimus poteflatpm fhould be awarded to take the con\ir 
fance of the harm only ; a,nd that it Ibould be of tfie fame date aa 
tbefirft was ; and that the return of the coyzmxiffioners fhould be 
lonexed thereto. ^Andersok. Sq it may bedone here, or other- 
wife, if the fine be levied betmxt the pUintifF and the three others 
onl^, it Ihall be good withoiat queftion ; ^or there is not ^y pre« 
jndice to the fourth : or the writ of dedimus feufiafttn might hm 
amended, and the writ of covenant made to accord with it i and 
any qf thefe three ways would be well enough. And there is jio 
<ioubt if a dedimuf pote/laum be awarded to uke the conulanbe of a 
line of three perfons, but that die commiffioners m^y take the co**^ 
nulance of the fine of one of then) at one time, and of'another a|. 
another time : for it may be, they cannot come to one place at the 
fame time ; and when the conufance of one is duly taken, it is 
againft reafon that the refufalof anothef ihould imppach ^t. ^u^ 
^Jn/iifi^ii fonceffirunf^ 



^tfi^haelmas/ 



57« 



Michaelmas Term, 

3q. &40* Eliz. In the Queen's Bench. 

Sir John Popham, Knt. Chief Jujiicc. 
Sir Francis Gawdy, KnU -> 

Edward Fenncr, Efj. > JuJUces* 

John Clench, Efj. J 

Sir Edward Coke, Attorney GeneraL 
Sir Thomas Fleming, Solicitor General. 



Cii«,. * ' Blinco ^^tf«j^ Barkfdafe, 

TfCAR •? MARSTON. 

Eafitr Term, 39. £//». R^^ 258. 

jf avfcarb^en- PROHIBITION. Upcm dcmuiTcr the cafe w», A parfonage 

ffowed of fmaii -^ was appropriated in the time of king Htnry the third to a 

tithes, he fliaij • pjiory, and at the fame time a vicarage was endowed by thcfe 

tiiheTtoibe words ; ^^ falva v'lcariaj qutt cmjiftlt m alteragtOy et m mhtKtis dicimis 

f arfon, though ** tQtlus parocbia pradiffie ad ecctifiam pradi^famfftiiante : et uherius^ 

the endowment ^^Ji contigerit ipfos mcnacb^s in prcpriis ifihus infiauramenta habere infra 

kc of the finall *' parachiam pradi^am ; quod tunc ipfi a prafiatiem dectmarum 9mnin9 

whdte^arim • ** intmunes cjjentj^ At the time ofwhich appropriation there were 

In/ihe'patcntce ^* yard-Iands of the parfonage glebe within the fame parish ; 

of a parfonage which parfonage came by the ftatute of 31. Hm* 8. c. 13. at the 

rfifcharge^ at dilTolutjon (bcmg tlien in the prior's IiaiKis difcharged de minut'n 

the time of en. jifclmis) to the faid king in the fame manner : and the king granted 

!^]J^JJJ^'j*j thofe fix yard-lands to the plaintiff's anceftor in fee, from whom 

the diiTolytfon it defcendcd to the plaintiff : and for the fmall tithes of thofe fix 

fcy }Un.%, (hall yard-lands the vicar fues ; and the plaintiff brought the probiiiti$n 

hoW it difcharg- containing all this matter. And it was thereupon demurred, 

^'^ — And, on the plointiff^s party it was argued, that by this cndow- 

51".^'^^^ *^^ ment of the vicarage no tithes fhall be paid unto him of the glebe 

^ ^ ofthei^zvfonzgCy quamvis dctat'to Jit deminutis decimis totiusparocbite; 

1 KoU Ab. 535. ^"^ ^^*^ ^"^ ^^ parcel of the parifh : for at the time of the endow- 

s^v. 3.' ment this land was not tithablc; and the very point was adjudged 

II. Co. 14. a. in this <;ourt, 32. Eiiz, I'ong v. CcrCy that no tithes fhould be paid 

5. Bac. Abr. 78. for glebe land. — Coke, Attorney General^ e contra. For the endow- 

w dl ft 8 ment is de minutis decimis totius paroch'ta ; and this land is within 

'^ • '5 • ^Yit parifh, and therefore tythes (hall be paid thereof. As long as 

itcontinues in the parfon's hands, no tithes fhall be paid thereof; 

becaufe the Levlte ought not to pay tithes to another Levite : but 

when the glebe land is conveyea into the hands of a layman, as 

here it is, it fhall be otlierwife. Therefore if a parfon had let his 

glebe land, the leflbr fhould have the crofs tithes from his leflee, 

^nd the vicay (hould h^ve th? fmall tithes, And th^jefprc it waa 



Michaelmas Term, 39. & 40- Eliz. In B.R. 579 

nlcd of late in the exchequer, in one Grtejlefs CW^, where certain Btiwco 
glebe land upon the endowment was allotted to the vicar, and all g^^^^^^^; 
the fmall tithes within the parifh, that he fhould not now pay 
tithes of that land ; but if he had leafed it over, his leflee fhould 
have paid grofs tithes to the parfon, and fmall tithes to thp vicar 
his Icflbr : fo here the parfon himfelf fhould be difchargod ; but 
in regard the i)laintifF hath not the parfonage, but the land only, 
he (hall pay tithes. — ^But all the Justices held clearly, that 
tithes fhould not be paid in this cafe : for the vicar cannot by this 
endowment demand fmall tithes of the glebe land of the parfonage \ 
although he fhall have the fmall tithes from all die parifh', where 
they were due at the time of the endowment : but that was not of 
the'parfon's glebe land. Ergo^ C!fr. But an endowment by ex- 
prefs words of minuta decima of the glebe land of the parfonage 
might well have been ; and then the parfon himfelf fhould have 
paid them to the vicar. — Popham faid, thisclaufe, ^^etjiulteriuscon^ 
tirrritj i^c." was put into the endowment for the benefit of the 
priory, to difcharge them from the payment of tithes for any land 
whicn they fhould have by purchalc, as long as they held it in 
their own hands.— And they all held, as it was difchargcd from the 
payment of tithes in the hands of the priory at the time of thedif- 
lolution ; fo the plaintiff now, having but fome part of the land 
by letters patents from the king, fhall be difchargedby the flatutes 
of 31 . Hen, 8. c. x 3. and ^2.Hen. 8. c. 24. from the payment of tithes for 
ever after againfl the grantee of the parfonage, and all others, in re- 
gard it was difcharged at the time ofthedifTolution. — And Popham 
faid, the difference would be, yrhere the difcharge was by reafon of 
thcpcrfons who were to pay tithes; as the order ofCiJIercianSy fefc. f^y^ ^ j, -^ 
then their patentee fhould pav tithes. But if the land were dif- marline. 
charged from the payment of tithes by reafon of an unity, it fhall Moor, 913. 528, 
then be difchargcd by the ftatute in the hands of the patentee; for ^^* 
that privilege runs with the poffefTion,— Wherefore it was ad- ^^'^^* 
judged for the plaintiff. 

Archer's Cafe. Case ^ 

A CCOUNT againfl Archer^ as bailiff of his manor of -D. The Jn debt \fr>cn 
•*^ defendant gigged his law, and had day to make it.— And at the account ti,c dr. 
4ay, he being ready to make this law, it was ruled, that ley-^ager ^"j'*'." ^^^^ 
lay net in this cafe ; for it is a matter triable per paisy whereol tlicy "^^^^ ^^^* 
piay lake cpnufance. Whereupon a repleader was awarded. Moor, 46S. 

5. Com. Dig. 260. Co. Lit. 295. a. 

Hoc againft Felix Marfhall. Case > 

Hilary Term, 36. £//«. Roll : 

CCIRE FACIAS. Upon a bail in this court hyJ.S. which AreicafeofaH 
*^ was. That ** \( J, 5. were condemned here at the plaintiff's a^>ons, dutiw, 
" fuit, that he fhould pay the condemnation, or render his body *v>^^to baU* 
•* tg prifon ; othcrwife the defendant would pay it for him." Et pendlnj thcU. 

tion againfl the 
pnncipa), cannot be pleaded In bar to s^ feht faeias on the fubfequmt judgment.— - Ante, 131. 
S. C. 5. Co. 70. b. Co. U%, 1^5. Qo\^^ 16^ Moor, 469. 5. Co. 70. b. a. Bulft^ao ,, * Huu it. 
^Bac.Abr,2r4, • ^ ' 

f^ncejjjt^ 



5^0 Michaelmas Term^ 39* aad 4a Cliz. la E; R. 

^^* c&nctjpt^ qmd twfc levititr de terris et Unemmtis bom's ei catmlBs of thr 

iJHiT^AK' <*cf^"<lant. In bar hereof the defendant pleaded a rekafe of all 
debts» duties^ afUoos and demands made after the recontxiance« and 



SHALL. 



1 S«ik 171 hcfore the judgment.. And thereupon the plaintiff dcxnorred^-* 
lleas/gy. * Atijoe argncoyir the plaintiff'^ and jERMvyir thf Jefmdant. 
Cowp. 12%. Gawdy and Popham h3d it net to be any bar ;. for it is nei- 

!• Term Rep. ther a debt, duty^ or demand at the time of the releafe made, nor 
3^^ caufe of action, nor any thing before the contingent performed : 

5.0^. 20. n for he is not bound in any fum certain ; but it- is a poffibiiity to 
Opo. Jac. 171. i>c a reconufance after judgment, and de&ult made, and then it be- 
comes certain by the judgment ; and therefore a releafe before that 
timefhall not difcharge it. — AndGAWOY faid, if aman coivenants 
to do a thing before Micbatlmas^ and before AGctmehnas the cove- 
nantee relcaicth to the covenantor all anions, this is not any re- 
leafe of the covenant ; but if it be afterwards broken, he may 
•rr» i»7» ^ maintain his afiioxi, as Hatl v. Kiriy, Dftr^ 217. is» Bw if he re- 
leafe the covenant itfelf, it is othexwife ; as 34. Htn. 8. ReaiTs 
Cafe is. — ^Popham. There is a difference where it is a Avity de- 
ieafable by aft fubfequent, and whae it grows by an aft iubfe- 
quent. In the iirft cafe it may be releafed ; for it was in ejfi before 
tiie aft done : but in the other cafe it is not in efjiy and therefore 
cannot be releafed. If one covenants to enfeoff me before ATi-- 
. €haelma5j a releafe of all aftions before Jklicbaeimas is no bar to an 
j aftion of covenant brouglit zfter.A£cheulmas; for there was not any 
;i caufe of aftion at die time of the releafe made. But if an obliga« 
; tion be made for the performance of that covenant, a releafe of all 
aftions is a diibharge of that obligation ; for it was a duty dcfea- 
fable. If 1 alfo grant unto you, Aat if ^. do fuch an aft, I will 
* pay unto you 20I. if you releafe unto me all aftions, and aftcr- 
' wards B. performs the aft, the 20I. is due, and an aftion lies for 
< it ; for it was not in effe at the time of the releafe. And in ig^Eiiz. 
I it was adjudged, where a leafc was made to Itaron znAfemr for their 
' lives, the remainder to the futvivor for 2.0 years, it is uncertain 
in whom it fliall veft, and is not yet in effiy and therefore the baron 
can either releafe, grant, or farrender it ; but if he fhould make a 
feoffment, that peradventure might dcftnoy the poffibiiity. And 
in the principal cafe, in regard it is not any reconufance, nor any 
thing until a contingency, which had not happened at die time 
of the releafe, it cannot therefore be releafed by tlie word demands 
(which is the moft general word for it), not being then in demand. 
—And Popham faid, that the opinion of the greater part of the 
Juftices oi Serjeants-Inn where he was, was accordingly. Where- 
lore, &c. 

Fenner and Clench e contra. For it is a reconufance from 
the dme of the bail entered ; although it be not certain nor fusblc 
tefore the judgment. But the judgment being given, and die de- 
fendant not rendering his body, nor paying tiie debt, it is a reco- 
nufance ab initio for fo mucli^debt ag^nft the bailor ; and this re- 
leafe is a eood bar ilow, yihtnz/cire facias is fued. — For Clench 
faid, if a bailor befeifed of land at the time of the bail entered^ and 
after aliens that land, and afterwards judgment is given, and de* 
Jault made, ,&c. that land which- he had aliened is fwbjeft to this 
Execution. — ^And Fenner faid, although this releafe at firft was 
jiQt a difcharge thereof j yet now l^^ing r?4ucpcl XO au aftion, it is 
^ ^ ,good 



Miduiclmas Term, 39. and 40. Eliz. In B. R. S*i 

a good bar. As in LittUtm^s Cafe^ where one hath a judgment to ^* 
recover aol. and releafeth to the defendant all aftbns, it is not any pitw Ma«» 
iifchaigc of Ac execution ; but if after this releafe a year and day 8« ai.l. 
Mffcth, (b as he be put to a fcire facias^ it is then a good. bar. p^ 
whcrrfore, &c — ^And afterwards Clknch, ut audhi^ mutavtt '* * 
tfm^nm^ and agreed with Popham and (QAWDY,---Wbereupon# 
ufujMtnU Fenneu, judgment was given for the plaintiff. 

The Earl of Lincoln agaiftfi Fy(her. Caic ^ 

r\EBT for an amercement in a leet. And counts, that he had 1>«^ itetfor « 
*^ a ket within his manor of Fokingham of all rcfiants within/wbytheOew. 
the msmor ; and that at fiich a court holden there before one *"* ^^ * ^"* ^ 
J. Gu/hrd his flcwani there, the faid ftcward fpeaking to the de- \^^J^^^ 
fendant that he was a fuitor there, and telling him that he ought bim the /u white 
to be fwom to enovire, &c. the defendant contemptuouily an* in th« duties o£ 
fwcrcd him^ " In laying fo thou lyeft :*' and for this contempt **'*<^'^«' 
tbc fteward impofed a fine of 20s. upon him ; for which this ac- ^**^ **'* 
tion was brought. The defendant pleaded nihil debet ; and found ^1^ 'I^' 
againfthim. And after verdift it was moved by Yelvertoi?, S.Col38rh,* 
firjtanij that this was not any fach contempt for which there Ray. 6Z. 
ought to be any fine impofed ; for it is no more in efFeiEl than ^- ^^Q* ^'T* 
"Thou fpeakeit untruly/' which one may fay to a ftewardwitliout ^^* *''• % 
oflcncc. — ^The Court held it to be an apparent contempt, and l.c^n^olphlfk^ 
abuie UBtp him being a judge, and in his authority ; and that he «. Hiwk. ^.94* 
himfclf might afiefs a fine for fuch contempt : and that for fuch x.Com.Dif.5<5« 
fines a^e&d by a fteward debt lies, without any prefcription al- ^^ac.Abr. 5^4. 
kdged to aileis fuch fines, or to have fuch an action. — Wherefore ^''* 
it was adjudged for the plaintiff. 

Cham againfl Matthew, Ca« j. 

EaJterTerm, 39. £//«. Roll 383. 

•TRESPASS. Upon the cafe, the parties pleaded to iflue. The A v»ire factor 
•*• plaintiff for his expedition of trial furmifed, that he was fer- ^^ *>« awaid, 
vant to 4c flieriff of Cornwall^ where the aftion was brought and ^ ^°*^°^ 
triable, and prayed a venire facias to the coroners ; and the defen- "£^^4 plalntS^ 
dant noH dedixit : whereupon procefs was awarded to the coroners, is fervantto tht 
And after trial and verdi£t for the plaintiff, Glanvile moved, ftierifr. 
that thij procefs was mif-awarded, and a mif-trial ; for procefs ^^^* 5^^ 
ought not to be awarded to the coronei;s but where the challenge Moor, 470. 
is princi]^ : ayid here to fay, that he was fervant to the fheriff is ^^°' J*^* *^ 
no principal challenge, as 21. Edw, 4. pL 67. is, but only to the cV'ut. xc6. 
favour. Wherefore, 8cc. — The Court Jield, forafmuch as if the oycr, 367- 
fhertffhad returned this pannei, it had been a good caufeto quafh Pbwd.74. 
the array for favour, that the plaintiff, to avoid that delays might 
veil fhew it, and have procefs to the coroners ; and fo much the 
rather, this being a judicial writ, and not original, as Plow. 74. 
Wimhi/bi*s Cafe is. And the clerks faid, there were many prece - 
<kats accordingly.*- Wherefore it was adjudged for the plaintiff. 



Thoroughgood 



Sl^z Michaelmas Term, 39. and 40. Ellz* tn B. ft* 

Case 6. ThoFoughgood againft Scroggs. 

MickagUiuu Term, 38. l^ 39. Eliz. RoU 390. 

SS*'ii^bT^ p^RROR of a judgment in the common pleas in trefpafs upoit 
the fticriff is ^^^ ^- ^^^' ^* ^' 9- ^^ forcible entry. The error affigned was, 

error 5 but it is Bccaufe a capias was direfted to the ihcrifF of Bedford^ returnable 
cnredby appear- crajlino Jmmarutn ; and it was returned by one Dlve^ who then was 
ance and plea, no^ fherifF, but one Luke. —And it was iicld to be a manifeft error : 
Co. LJt. 315. ^^'^ becaufe the defendant appeared afterwards and pleaded, it was 
Yeiv. 158. not now material ; and that his appearance had made it good. 

Cro. Jac. 311. • ' 

xiLolLAb. 380. 2* Hawk. 4x7. 

Cofls A iiirr<- A SECOND ERROR affigncd was, That the jury found damages 
•"^'ment i^ ""^ 2oI. and 2S. cofts ; and the cofts were increafed by the Court to 
fordbircmry, 2^- • ^^^ ^^ damages and cofts being trebled, he had judgment to 
Ante, 544. recover 63I. ; whereas the cofts ailefted by the Court ought not to 
be trebled, but only thofe cofts which the jury affcfled. — ^edmn 
(a) 10. Co. 1 16. allocatur y For all the precedents are. otherwifc («)• — Wherefore 
2. inft. 289. rule was given to affirm judtrment. 

1. Vcrit. 24.. ** ^ ^ 

X. Leon. 282* a. Leon. 52. Co. Lit. 257. 2. Stra. 1044* 

^^" > Pay againft Brown and Guybon. < 

'^It^^^ 'T^RESPASS. Upon a fpecial verdia the cafe was found to be, 
to .a copyhold -»- Nicholas Harc^ being lord of the manor of Stowy dcmifed 
»r.Unotavoida that land, being copyhold land of inheritance, to A, upon condi- 
forfeiture in- tion that he fhould pay to Brown 20s. annually during his mino- 

b*'a'ch o^'^hc ^^^y* ^'^^ ^^' *^ '^^^ ^^^^ *S^" ^' ^^^^ ^^ *^ payment of the 20s. 
<o^itionon ^'^^ furrenders to the ufe of Pay and his heirs ; the lord admits 
which it was him, and afterward Brown attains to his full age, and the lool. is 
panted not paid unto him ; whereupon the lord enters for the condition 

Ante, 361. 553. broken, and grants it by copy to Brown : and. Whether his 
^^*' \ entry was lawful, or that the acceptance had difpenfed with the 
Co. Cop. 71. condition ? was thequeftion. — Fenner held, that he well might 
•Glib. Ten. 334. enter ; for he to whofe ufe the furrender is made, comes in by 
*"* 5*^ him who furrendered, and not by the lord ; for the lord is but as an 

inftrument to convey the land : wherefore the condition was gone. 

But Gawdy doubted thereof. — Cateris Jujiitiariis abfcraibus^ 

adjourfiatur. 



^^^ *' Pollard and his AVife agahjl Armlhaw. 

A CTION for thefe words: " Thou art a whore, and J. S. hath 
-"• " die ufe of thy body : the cart is too good for thee." After 



Vords contra 
Siioi imi4Sy if 

chaise an o£- • vcrdift it was moved, that the adion lay not for thefe words.— And 
fence pregnant fo held all THE CourtI But if one faith to a woman which 
with temporal keepeth an'inn, or a tabling-houfe, " Thou keepeft a houfe of 
toiM?'"''^ bawdry," it is aftionable ; for thereby her houfe is flandered. 
Ante, 289'. Wherefore it was adjudged for the defendant. 

i.RoU. Ab. 34. 36. Moor, 10. 29. KItch. 173, x. Sid. 61. 396. 3. Mod. xio. i. Vent. 4. 5 j- 
Cic. Car. 393. Cro. Jac. 473, t. Mod. 31, 

Harrifon'a 



Miciaelmas Term^ 39- & 40. EUz. in B. ll. ^ii 

f 

Harrifon'sCafefc ca$* 9* 

ACTION for thcfe words: "Thou haft forfwom thyfelfat Word$ aaiii- 
" " LcmiQHy and there it aopeareth upoa records "—Upon dc- ^^^^^ pj^ 
littntr it was ruled) that it Vrell lay. |^^. 

Hammon agaiaft Gryffith* c^st 10. 

TNEORMATION upon apcnalftatutpforthc qteeAandhiftifelf. if ah informcf 
* Before anypka pleaded the informer died. — Coke, Attorney Ge- in yW taA d\t 
mgL, moved the Court, Whether he might proceed upon it fordid before pica, tiie 
qoccn ?— And the Court held that he might. And it the ififormer ^"^^H ^^ 
will be nonfuited, or releafe, the queen may profecote. And fo it tioo of xht^^ 
was ruled in this court betwixt Stretton and Taylor {a)^ where the nalty. 
quccn*s attorney would enter a non vuk prcfcqui^ yet the informer 3. Inft- 194. 
might proceed for his part. And fo where the queen will pardon, *'* ^' 66. 

&c for it is but for her own part only.— Wherefore it was ruled '* If^'Jl^^ 

J- I r J I. Hawk. P.C* 

accordingly. cSs.f.at. 

{a) Ante, i3«. ' 3-C<m|.Dig*5i9* 

s. Hawk*. 3(^14 

Makarell againft Bachelor. CA$«n. 

r\EBT upon divers contra£ls j all for apparel ; fome forfuftian to the piei of 
^ fuits, fome for velvet and fattin fuits laced with gold iace, infancy^ the 
amounting to 44I. whereof he was fatisfied 4I. The defendant p*^"*^^'^/'*- 
pleaded infoncy. The plaintifF replied, that he was ^^^ oUht^^l^^l^'^^^^^^ 
gcndemen of the chamtler to the eari ojf Effl-x \ and fo it was for ^^^ . o^ "wliScii 
his neceflary apparel. And it was thereupon demurred. — 1'he the Court we to 
Court held, that they were to adjudge what was neceflary apparel : J"<*S«- 
andfuch fuits of fattin and velvet cannot be neceflary for an infant, '^"^^'*9- 
although he be a gentleman, &c. — It was then prayed, that be Co. Lit. 59. 6. 
might have judgment for thofe which were neceflary apparel. ^^^' ^^^' 56«- 
But THE Court held, in regard he had acknowledged latrsfaftion stra 110*1?' 
for4l. parcel, &c. and they did not know wherefore it was paved, Carth. mo! 
therefore he could not have judgment for any part; otherwile he i.TcrmRcp^o. 
Oiould have judgment for thofe contracts wliich were allowed of, 
&c. Wherefore, &c. 



John FulTe's Cafe. Case 12. 

AN indiftment was againft him by the name of " John Fuss, 
^^ *• oi Aldrington, alias dlflus JoHN ?X5^r, o{ Jldrmrton, yeo-^^^^^^ 
" man^ quod fehnici et burglarlter freglt domum^ isfc. — And becaufe jjj^j^^"'^^ ^^ 
there wanted the addition of yeoman in the firft name, which was firft name is fa- 
not till after the alias diffusy it was ruled to be ill. As alfo, for ^^ i and if it be 
that he did not fay m^anter^ the indiftment of burglary was not ^'^^ ^^^^^^y^ >t 
good.— Gawdy laid, it was good for the fcIony.-^But forthe firft ZL^IJ^ 
caufc he was difcharged. And it was faid, that there were divers Ante, 198*." ^' 
precedents in this court accordingly. ^^ Hawk. p. c. 

c. 3S. f. a. 
ft. HA^t 1774 A. loA. 669. I. Hale, 560. Sayer, 280. 3. Hawk. 3281 Caifes in CiownLaw,3^5. 

Pahncr 



^ Michaelmas Term^ 39* & 4e« £ii^ InlS.^^ 

Ca*» ts. Pdmei' againft Humphrcy;< 

Hilary Term, 39. Eiiz, Roll 599. 

IftfaeliKimfitSofi p JECTIONE FIRMiE, It was fotind bv a fpctial vcrdiA^ 
fiS* *Lfe^ that the IhcrifF, upon an elegii^ impannellea a juiy who found, 
^dJuwbmith **^ Humphrey 9 the defendant, was poUcffed of a Icafc for one huiv- 
infaaofs^</iff- ^^ years, whi/rh began at Aficb. 2. and 3. PhiUp and Mary {uM 
raa dau, and the revsra^ as it was found, it began at Mich. 3. and 4. Philip and Mary) , 
flierifffetl it ac» ^y,|^j quidem Humphrey Jiatum intereffi et terminum in tenementis pne* 
corfi^^thcif dibits juratores_pradiai atpretiarunt at 80I. and the IherifF fold it 
JIJj^^^^^. to the leffor of the plaintiff for Sol. and, Whether the falc 
!y, theialeU was good, or not ? was tlie queftion. — Popham. I have conii- 
¥oid. dered of the record, and conceive tliat the falc is void ; for there is 

^**^ 735» a difference betwixt a fale upon k fieri facias^ and upon an elegit : 

4. Co, 74» for the elegit is, " quid per facramentum duodecim protorum hominum^ 
^ A. " f^ rationabtle pretiunty et extent.'* they appraile the goods and 
2^Y chattels of the debtor, and extend his land (and therefore, with- 
X. Vent. »59. out an inquifition, he cannot fell them) ; which was agreed by all 

5. Com. Dig. THE Justices ; and fo is Dyer^ 100. ice. And then, if the in- 
5°^* queft findone thing, and he fells another (as the cafe is), it is not 
c'*^'^^* warranted by the inqueft, and therefore void ; but if the inqucft 
^IS '^iL had found that he was pofleffed of fuch land for term of divers 

years adhuc vrw/i/r. which tliey appraifcdat fo much, without fliew- 
ing the certain beginning or determination thereof^ it had been 
well enough ; for diey Ihall not be compelled to iind a certainty, 
not having means to be informed thereof. And therefore about 
twelve years fince it was agreed in tliis court, in Sir George SyJeft" 
ham V. Rolls y where an inqueft upon a fieri facias found, that the 
defendant, againft whom, &cc. was poiieiled of fuch a term bearing 
date, &c. (whereas in truth it did not bear the fame date) («), and 
the fheriff fold the fame term, that the fale was not good. And 
then the Court directed the (heriff, that upon a new fieri facias it 
ftiould be found, that he was pofleffed of a leafe for years generally, 
yet continuing, and that he fold it, &c. and it would be well 
enough. So here, &c.— And of that opinion were the other 
Juftices : but the parties compounded the matter. And Hanger 
the leffor gave two hundred marks more to have affurance of tke 
term. And fo it was determined, 21. Hen. 6.pL 11^ iZ.£dw. a. 
tit. " Execunon.** Dyer^ 1 16. & 193. 4. Co. 74. 
(«) See XX. Mod. 96.^ 

CAft X4. Bntton againji Long. 

If unity of pof. PROHIBITION. And furmifeth in difcharge of tithes, that 
^•» ^ Pj»**- '^ J. S. prior of Bradejioke was feifed of the rcdtory, whereto, and 
StWies,thc^. ^^^"^ ^^^^^ °^^ of which the tithes were demanded, in itt.fimul 
ty at ib€ timi of'^ femel^ from time whereof, &c. and at the time of the diffoltition. 
thtdij/^ktimtmy £t ratione inde^ the faid land is difchargcd, &c. The defendant 
be tnuwild. travcrfetli the unity at the time of \ht diflblu tion. And thereuporl 
a. Co. 47. the plaintiff demurred. — Fenner and Clench, c<!teris Juftitiarih 



Leon. 332. ahfentihiis^ held the traverfe to be good : for although there was an 
Moo/ 429. 513. ^^^y ^^ poffeflion from time whtreof, &c. yet if it were not at 



]^(ichaelmas Term, 39, and 40. Eliz. In B. R. 5^^' 

time of the diflblntion it (hall be charged. But if the difcharge Bottok 

lud been pleaded generally by prefcription, and not by reafon of ^omji 

unity, then the prefcription ought to have been anfwered, and'not ^*^^' 
the unity. And in 7r/«. 34. Eiiz. Calmady v. fVithery it was fo 
lulcd in the common pleas. — Wherefore it was adjourned. 



Buckler agalnji Hardy • ' Ca8« 15, 

Ante, 450. 
Michaelmas Term, 37- ^ 38. Miiz. Roll 1159. 

r JECTIONE FIRMiE. Upon a fpecial verdift the cafe was, Tenant for life 
*-* Andrew Buckler being tenant for life, the remainder to Chri/io- makes a Icafe 
fher Buckler in tail, remainder to the right heirs of the faid Andrew^ Iftcrw '^ *"^ 
lets the land to J. S. for four years, and afterwards granted the ^ntTih/re- 
rcvcrfion to one Kow^ habendum from Midfummer next for the vcrfidn, /Ttf^wi. 
lite of the faid Andrew Buckler. After Midfummer J. S. the Icllee dum from the 
attorned to Rozu. and after that granted all his term unto him. '^^"'/•" 



ifrx' entered, and granted the land to Hardy the defendant, to have J'.SIlJ^t'vJidf * 
and to hold to him for his life : but no livery was made. Hardy iho' ihckfltc 
entered ; and after the four years expired Hardy continued his attorns and con-* 
poflcilion- Andrew Buckler levied a ^ne to him fur conufunce de vcys his term to 
droit cTtne ceo, Uc. Chriftophcr Buckler the tenant in tail enters for %ff^^^l''!^ 
a forfeimre, and lets it to the plaintiff for years, upon whom the ardiiTiic'tcnant. 
defendant re-entered. Etfi, fafr. — ^The first question wa<;. When lor hie aitcr- 
this iTverfion was granted by Andrew Buckler to Row, habendum wards l^vy a 
after Midfummer y and the attornment to that grant is after Mid- fin? "»««»»« is 
fummer, whether it be a good or void grant? — And all the ^jj^[j^*j"[**' 
Justices agreed, that the grant was void, being limited to begin at Ante, 255. 450. 
a day to come ; for if it Ihould be good, the Icffor flioulu have a a. co. 55. 
particular eftate referved in himfelf In the mean time, which can- Moor, 4/3. 
not be. So if the attornment had been made thereto prefeiitly, yet ^^^* 33i. 554- 
it had been clearly ill. And although- the attornment was ^^^ j^Wiic^p.^! 
till after Aftdfummer, yet it cannot help the grant, which was void y com. Dig. 
at the beginning ; for quod ab initio non valet ^ in tra^u temporis con- 22^ 
vaUfcere non potTfl : as if a man makes a leafe for years, and before *• ^ac asm. 
the Icflee's entry he grants the reverfion, and afterwards the leflee ^^^ ^ 

enters and attorns, yet it is void ; becaufc he had not at that time p^ft.g*;^*^ ^' 
a reverfion to grant.' So in Trevillian*; Cafe, one devifed hisjand be- 
fore the ftatute of Wijls, and afterwards the ftatute was made, and tlie 
dcvifordied, yet this will is void: but if a man grants a reverfion, 
habendum after thejdeath of the tenantfor life, it is good : for it is but 
a limitation When he fhall have the pofleifion : but, if it were ha- 
bendum after the death of a ftranger, it lUould be otherwife. — Pop- 
ham faid, it had been ruled, where a feoffment was made habendum 
after Michaelmas, and the attorney made livery zhcr Michaelmas, y^t 
it was void. 

Secondly, Admitting the reverfion pafTcd not to I^cw, when ofi^'^-v^J^^ 
ie afterwards piarchafed the term, and granted the land to Hardy purchafeu'ic** 
for his life, (no livery being made). Whether the land pafled prccedinf^ieafe 
ky that grant? — And Gawdy, Fenner, and Popham held, tliat »^r )w«f a 
the term paflcd ; for 10. Eliz. Dyer, i"''. is, where a termor for f**"^ **f^^® 
years aevifed the land to one for his life, that the term pafied. So Ztf^tT^h 
here. But Popham faid, if there had been in the deed a letter of void, La /ood 
rant of the term. — 2. Rep. 55. the cafe put tb'At ;fais ciUtc waj only an cftatc at will. L, C. if. 

CRO. ELIZ, PART II. Rr attorney 



5*5 Michaelmas Term, 39. ^nd 4c. Ellz. In B. E^ 

Bvexto attorney to nuke livcryV then pcradvcnturc it would liavc been 
agaiiijl othcrwife ; for thereby the puvpofc of the grantor had appeared to 
HAitDTt p^j-^ ^ freehold, and not the term only : but hwe is no more than 
the grant of his term during his life. 
>^ fine tevied by THIRDLY^ Admitting hc had the term or not by this grant, 
■ tenant for life .Whether, after the term expired, he continuing the pofleffion 
loa diffciforis a fi-^jU be faid to be tenantat fufferaiice ? and if hc hath not the term, 
Anw"'d Whether by his entry, hc be a diffeifor? And then when JnJrrM 
\ ' BuckUr levied a fine unto \\i\n fur conufance de droit come ceo^ l^c, it 
Co. Lit. 25J. jg ^ forfeiture every way ; for rfie conuibr and the conufee arc both 
a/Andtlo. cftoppcd to fay, that he had not any eftate before the fine, by the 
a! Co. 5^ b. gift of the conufor. Wherefore it is a raanifcll forfeiture ; and fo 
Xi^tx^ 14S. the entry of Charles Buckler^ tenant in tail, is congeablc. — Where- 
fore it was adjudged for the plaintiiF.— 5^^ S, C» in the Common Pleas^ 
^^^^7 450. 2« Co» 55. Afoor^ 423. 

^*" »^' Gregory agairjl Booker. 

Ifprocefsof HT RESPASS. The parties being at iffue, the plaintiff for hii 

k!** "'^'{a^' expedition funnift'd, that he \va; fcrvant tothefhenff; which 

the coroners '?t ^'^5 confefled by the defendant, the procefs was awarded to the 

viii be amir- coroners. And after verdift it was moved in arrcft of judgment, 

trial if t'^c ihcriff that the tales de c'lrcnmftantihus was awarded, and returned by tlic 

aftcrwaj-ds fhcrifF. — This was held by the whole Court to be good caufe 

Xcl^ftal^ilif' for Haying the judgment /for it is as a mif- trial, not aided by any 

Anw; 574! 581. ofthcftatutes : for the procefs being once awarded to the coroners, 

Poft/894. the fheriff afterwards is not the officer to return the jury, no more 

Co. Lit. icS". a. ^^^^" ^^y ^^^'^^*r ^^^^^ i ^^^^ procefs ought always to be returned by 

i.BrownLi34 him who is au orfiatr by law to return it; othcrwife it is merely 

Mx>or, 356. void. — But aftci wards, upon view of the record, it appeared, tliat 

Yciv. 15. 214. ^i^e /^/^j ^^as returned by the coroners, and their names annexed 

'*'*Co' 6 thereto ; wherefore it was -without further qucllion. The 

1! Hawk. 42-. Court faid, if their names had not been anjicxed to the tales df 

429. circnmftantibusy yet it had been well enougli, for they arc annexed 

to the firll panel : and it Ihall be intended, that the right officer 

returned it. TIk- ufnal courfc is, thattofuch tales there is not any 

ofliccr's name fubfcribed, and yet it is good enough ; for it is not 

within the llatutc of 1'orky wljich appoints that the name of the 

Ihcriff Ihould be fubfcribcd. {a), — But it was moved, that the 

record of the poftea is, that the tales were returned by the IherifF. 

But tiik Court held, that it was amendable. And it was done 

accordiJigly i and tlie plaintiff had judgment. 

(/«} Sed vide II. Jac. I. c. 13. 

CAit 17. Pawlet againft Chriftmas. 

A viriaice in p^Rl^^^^^ ^^ » judgment in the common pleas. The error 
f\. /3.T^ Ti aifigncd was, Bccaufe there were but twenty- three- of the jurors 

u.:t^^ra from names returned by the IheriiF upon the panel, where there ought to 
thevMi^r, js to have Ivjcii twenty -four ; and the trial was by ten of them, and a 
\ *' ?""is'" *^^ /<^Ai </' £i>r//;K//'^/;7/;7'«i.--- But bccaufe this default was in the return 
wiiendable. °^ ^^^^ iiamcs of thc jurors upon the writ of habeas corpora^ and 
-Ai *r',jt).5. not lioon the venire facias^ in which writ were twenty-four names, 
5. Co, ^-. a. ii v.ai ordered to be amended. 

i.Com. i>:g. CuKr. It hath been adjudged here, that when upon zveme 

3Jto. 3r>. y^ ;^^^ (went) -thrcc were only returned, and jaL trial had by twelve 

of 



Michaelmas Term, 39. & 40. Eliz. laB. R. 5^7 

rfthcm, it was well enough. — Poph am, Chief Jujlice, That is true, Pawlft 
irhcre the trial is by twelve of them returned : but if in fuch cafe _ ogf^^'^ft 
i'j£s be awarded, and the trial had been by part of the princi- 
pil panel, and by part of the taU%^ it is otherwife. — But in the 
principal cafe it was amended, and the judgment affirmed. 



Ckkistmai, 



Doftor Herbert again ft Munday. cas^ xS. 

ConHrmation. 
I. R0.Ab.479, 



PJECTIONE FIRM^. Upon evidencea queftion was moved : 

•^ A parfonagc within the diocefe oi fVinton was annexed to a 

prebendary in Saturn. The prebend in i. £^u'. 6. lets it for nine- i sid. 57. 75^ 

t\-nine years, which was confirmed by the bifhop, dean, and chap- 4^6. 

rer of ^arum. Whether this were good without the confimiation '• ^^^' ^^°- 

ofLhebilhopof /T/w/^/i, in whofe diocefe, &c. ?— Popham, (7/^/^3- Bac.Ab. 578. 

Jufiia. This was in my time a great queftion ; but it hath been 

in two or three cafes fince refolved, that it is well enough. 

Whereto all the other Juftices agreed. 

Somerton agahijl Do6tor Cotton, Parfon of Finchley. Case 19. 
PROHIBITION for tithes of wood. And furmifeth, that A prcfcription 
^ witiiin the parilh is fuch a cuftom, tliat aU the parfons of the that fuch land, 
faid church, tiirte whereof, &c. habuerunt et gavtji futrunt fuch land j^^^'^^^'^^^*^^^^^ 
parcel of the manor of FinchUy^ in recompence of all tythe of 3$ a recompcnca 
wood within the faid parifh. And it was thereupon demurred. — for all tithc- 
Harris, y?r/V/i;i/, moved, that this prcfcription was not good; for wood wichiu 
the lands now in queftion, whereof tithes are demanded, were not ^'J^^*'^*^ ** 
averred to be parcel of the manor; and then the land, parcel oi^o^] ^^^^ ^^g^ 
ihc manor, cannot be faid to be a recompence for all the other Hob. 42/ 
lands within the parifh, wherewith the lord of the manor hath Cro. Jac. 501. 
nothing to do. — Popham, Chkffuftke. It may be, that at the i. Sa«nd, 14*, 
bcginnmg all the land withm the parifh was parcel of the manor, 
and that then this allowance of the profits of this land was allotted 
in difchargc of tythes of all the wood within the fame parifh ; and 
tiiat, at tlie firft, it was all the land of the allotter. Wherefore it 
^^as adjudged for the plaintiff by the aflcnt of all the Justices. 
Vide Pig0t V. Hearn^ poft, 599, 

Bccknam agatnft Rye. Cxt e ao. 

n RESPASvS. A fter verdift it was allcdgcd in arreft of judgment, judgment rhail 

that neither upon the venire facias or dijiringas there was not be ftaycd fcr 
made any return. — And it was held by the wiiole Court to be want ofa return 
a good caufe for ftaying the judgment ; and that it is not aided by ^? ^'**^7;"'V''- 
thcftatutes 8. Hen. 6.c 12. or 8. Hnu 6. c. 15. or 18. Eliz. c. 14. Z'^tT'^'' 
for ihcy aid mi f- returns or infufficient returns; but here is not^. co. 36. 
any return, and therefore not aided. And judgment was thereup- Cro. Car. 223. 
on flayed. • i. Saik. 373. 

Sec 3, Ceo. 2. c. 25. f. 8. ^^ v»^c AnHr. 

67. i^,coatiam 

Penruddock^^j/^/y? Errington. Cajrii, 

^RESPASS of batter}'. The defendant was Lailfor^. and 5. who ^^^j^^^^^^^^ 

were afterwards condemned. And the judgment was brought j^^ ^g charged 
JJ^to the exchequer-chamber by a writ of error : and there it was with cofV. in a 

•ntofcrror if Che judgment be afiirn>ca.--i. Roll. Abr. ;{ 31. Cro. Jac. 6 ;6. 2. Mod. 7;;. S«ilk. ^7. 
J^^wjl. 3J0. X. Term Rtp. a66. -^fi. 2. Term Rep. 57. 78. 

R r :t affirmed , 



5^8 M chaelmas Term, 39. and 40. Eliz. In B, R. 

PrwRvnnocK affirmed, and other new cofts were given by the Juftices in the 

ErrTngton. ©^cchcquer-chamber ; and the record was remanded: and now a 

' Jcire facia i was prayed agaiaft tJie bail, as well for the firft damages, 

and cofts upon the tirll: ja Igment, as for the newcofts. 
Dyer, 77. PoPH AM and Fenner doubted. Whether thofe coils were well 

Pojl.fijy. aflelTed t for the 27. Eiiz. c. 8. gives them not any fuch authority, 
z! Com. Db. ^^^ ^^ ^^^ common law n ) cofts v/ere given upon a writ of error, 
5'^^. " ''' until the 3. Hen. 7. c. 10. And if this Ihould extend to thofe 
Dougi 572. in writs of error newly give 1, it would be requifite to advife. Buf 
*"''• clearly the bail are nc»t cha -geable with thefe cofts ; for they take 

upon them to pay only th." condemnation of this court, and riot 

of any other. — Wherefore ?i [are facias \^as awarded accordingly, 

the other Juftices being abfent, &c. 

See 3. Jac. X. c. S. 



Case 2i. 



Robinfon dgahifl May. 



Onanufurious r>EBT upon an obligation conditioned to difcharge, or faye the 
bond, '^a X^ plaintiff harmtefs from an obligation, wherein the plaintiff, as 

giv.n to fdve a f^retv for tne defendant, v;as obliged to ?. ^. to pay lool. occ. 
furcty harmiefs. The defendant pleads, that the faid obligation to /• «^« was upon 
and he is an ufurious contraft ; and pleads the ftatute of ufury ; and con- 

*^r,"'^'^f''^V eludes, etfimn damnifisutus. And hereupon the plaintiff demur- 
pieldcd^'a"bar ^ ''^^- "^"^ ^^ ^^^ moved, that it was not any plea : for although 
to it. the bond be void, yet he ought tofave him harmiefs fromfuit, &c. 

Poit. 643. and here he hath paid the debt. — T anfield. I'hc plea is good ; 
Cro. jac. ^3, otherwife the ftatute of ufurv Ihould be defrauded ; for by a coiu- 
Noy, 73.1. paft tlic ufurer would fjc the furety, and he Ihould pay him, and 
^ M^Jd"^'-^-*' ^^^^ ^^^^^ remedy upon his counterbond. — The Court held it to 
•.*Bac.Abr!' ^^ "^ P^^^ » ^^^ ^^^ ought to take heed to fave his furety harmiefs. 
^\^/ " Wherefore it was adjudged for the plaiiuiif.— -Note. The rea- 
Cowp. 47. fon conceived, for that the furety by intendment cannot know of 
the corrupt contrad to pkad it in avoidance of the bond ; where- 
fore the principal ought to take care thereof. 
Case 23. Middleton againfl Hill. 

A judgment CCTRE FACIAS. Upon a judgment of 240I. the defendant 
conferred (h;«M ^ pleaded, that he borrowed of the plaintiff lOol. and contrafted 
not be avoided to give unto him 20!. for the loan for a year : and for the payment 
A^^f^ctTlhat ?^ ^^^''^^ ^^^'- ^^^^ plaintiff would have the defendant to confefs that 
Uvvas'' obtained i^^S^^^"^ ''^^id pleaded the ftatute of ufury to avoid it.— Godfrey 
by ufury. moscd, that it wa>not any plea; for the ftatuteof i3.£//z.c.8. ft. 

i.Sid.iKz. 5. [a)\^, " all bonds, contrafts, and affurances collateral, &c.lhall be 
i.Sirangc,io43. void. "But lierethis judgment cannot be termed an afiurance, nor 
Cow ".'!^'^' ^^ avoided by fuch a furinife.— And thewhole Court was of 
Doujl/ic^'. ^^^^^ opinion, that judgments ihall not be avoided upon fuch fur- 
mifes ; for if there had been any fuch matter the defendant might 
have pleaded it upon the a 61 ion brought, and npt havefuffereda 
judgment. And although it may be a pra£lice to avoid the ftatute, 
yet Tt fliall rather he tolerated tlian to avoid judgments upon fuch 
fuggeilions. Wherefore judgment was commanded to be entered 
bv nihil d c',t ; hccaufe the Court upon a former motion had given 
hini c'av for the amendment of his pica, and he had not altered nor 
amended it: for, as he affirmed, It was his matter, and he couW 
Hot pkad otherwife. 

' («) Set n. Ann,c. i6* 



Michaelma.s Term, 39.anc3 40. Eliz. In B. K\ 5^9 

Hunt agiihift King. ' CA$it4. 

rOREMEDON. The cafe was fuch : Tenant in tail infeoffs J. in what cafe a 
*' thcifluein tail; and afterwards difleifeth him, and levies a ^i"*.?^*^,**.''*^. 
tone. J, re-enters ; and after the proclamations palled, then J. vidcpoft^e^o* 
infeoffs B. The tepant in tail, who levied the fine, died. J, ^^^^^^ 
ilics. The ifluc of J. brings a formedon againft B. Whether ,/co'^9oV 
the eftatc tail was bound by this fine? was the qucftion, — Pop- 
ham and Fenner held tliat it was ; but there was not any ar- 
•gument thereon. Sed adjot rnatur {a) . 

(«) Adjudged on a writ o» en or, that the fine barred the entail. — Poft 6io. 

Marryn agaiiift Barlings. CAHij. 

ACTION for thefe words: ** Is Afartyn your attorney? He is Wonis which 
^ the foolilhcft and fimolert attorney towards the law ; and if he '^^v^^^^f^^^y or 
*• doth not overthrow your caufe, I will give you my ears. He isa j^^.o/oe a" ^ 
*' fool and an afs-*' After verdift for the planitifF it was moved, a6ionabic! 
that the vftords were notaftionable. — And fo the Court con- j. vcnt. is! 
ccivcd upon the firft motion : but being upon another day moved t^op. 207. 
a^ain, they refolved, that the action vrcll lay ; for to fay, that '* an ^''^'^; ^^^' l^v 
"attorney will overthrow his client's caufe," is a great flander, 4»Co-i6. 
and toucheth him in his place. Wherefore it was adjudged for ^' ^ * *^^' 
tlic plaintiff. 

Redfern cgawft Todd. ^'*"^- 

A CTION for thefe words : *' He fhould have been hanged for a ^ords a^ion.' 
■^ " rape, but it coft him all the money in his purfe.*' After '*^^ 
verdift it was moved that thefe words were not aftionable. — The 
Court refolved that theaftionwey lay. And it was adjudged for ^ 
tbe plaintiff. 

Odiham agairjt Smith. Case 17, 

Michaelmas Term ^ 35. ^ 36. £//s, Ro/I tg, » 

pRROR of a judgment in the common pleas. Trinity Tirmy 34. Th-iord may 
^ Eiiz. Roll 124. in trefpafs of iiis clofc breaking at iVytlJham, j^^'^*^ ordiftrain 
aid taking: an ox there. The defendant juftifie* for damasfes fc- ^"^^tjtr. 
4" . • r»? I ^ »..• 1 • -/T-^ I "^ ,-f ^ r 1 v.'cr at I. IS plea- 

lint m Black Acre, 1 he planitiir made a new aihgnmcnt 6t the jure; hut for 

trefpafs in IVhite Acre, The defendant juflifics there as fervant i./ /./ ir«//flw, iiq 
to Htlkmp Rudjhne^ for that the plaintiff held of hiin the place, c^n only fcizo 
^^!ierc, &c. by heriot fervicc {inter alia ffrvitia)^ as of his manor |Jjfn*^^i"ftl?^ 
ot Paultery and that he feized tlie fiiid ox there for an he- AnrcV^i, ' 
not. Whereupon the plaintiff demurred, and had judgment to , ro|i y^j^j. 
recover there, becaufe the lord could not feize an heriot fcrvice, 781.665. 
but he ought only to diftrain for it. And error being now brought, KcJ. Si. 
'twas alfigned in the very point of the ji dement. — Foster ar- *'^^^'- 9^- 
gued for the defendant in' the writ of crr( r, that there were two f '"^^.J^*^"* 
caufcs of the judgment. The one upon the point in law, mat an ^^ -^^^^ ^^^ 
K'riot fcrvice is not feizable, becaufe it is a fervice which lies in nm fier. 6c, 
\oider and not in prender-, and all the pleading thereof is, that he ^'^2. Avo. 177, 
, r.:r-j^i__ /-i ., 1 1 r i- . . .• 1 . •.- Pr.v r.r 269, 




P^rtyi and in the rejoinder he jullifics for an heriot, wherein he t-ar. 37.95. 130* 
cliims it as his : fo it is contrarjr, and a dejartxjre. Wherefore, v »iuift« 313- 
^^^'-But ^UU TH£ Justices feverally delivered their opinions, ^^'J^'^^^^^ , 

Cfilb.Tcn. »48- 3. BLCoin. 15* 3, Bzc. Abr. 5a, LH. Ray. ^65, 308U 

R ^ 3 and - 



59^ . Michaelmas Term, 39. and 40. Eliz. In B. R. 

Odw AM And they held, that an heriot fervice was feizable, and therefore the 
again/l judgojent was erroneous ; for where the tenure is, that the lord 
Ani^r^^il'. ^^°^ ^^^^ ^^^ ^^^ hczS\. for an heriot, it is in his election what he 
Cr6. Car. a6o. will take for the beft; and what he conceiveth to be the beft he 
may well take, although it be not fo; and. therefore the dif- 
ference is betwixt a tenure of yielding annually an ox^ and of ren- 
dering annually his ifeji beafl. For in the firft cafe, it is in the te- 
nant's eleftion what he will render ; but in the laft, the lord hath 
eleftion what he will prcnder\ and therefore Poph am faid, if,» 
at this day, one makes a gift in tail, or a leafe, rendering annually 
his beft beaft, the leffor, or donor, may feizc what he thinks to 
be the beft beaft: as if I give to one my beft horfe in my ftablc, he 
Co. Lit. 145' a* well may take him without my delivery. So by this refervation, 
it is quafi^LU agreement of the tenant, and a gift by him, that the 
lord at his eleftion may take his beft beaft i and otherwife tlielord 
fhould not have it ; for if the tenant. will not render it, but the 
lord he put to diftrain, he can never have that which is refer ved, but 
that only which is received. Popham and Gawdy faid. When 
the lord feizeth it, it is quajt 2i. fcifmby the hands if his tenant •, 
for it was by his agreement at the creation, and as a gift by him. 
Totrefpaft, the ^5 ^o the objeftion againft the pleading::, they held it to be 
l©Bfori!w^jr«'^^'' enough ; for by the novelaffignment thcharisout of doors, and 
fcafant. The as if it never had been pleaded ; as 27. Hen. 8. pL 7. is. It may be, 
plaimiffncw af- that he took an ox in Black Acre^ being his own land, for damagf 
figns; and th^Jefant^ and another OX in f'fhttc ykre^ as for the heriot ; fo they may 
fi« "?ril"!&!l well ftand together : and if the cafe be lb, he could not otherwile 
ri!/. ThcTde-" h^v^ pleaded it. Wherefore they all refolvcd for the plaintiff in 
parturc is im- the writ of error ; but they faid they would advife and confer with 
material; forhy the Juftices of the comnion picas, to know, their reafons. It was 
^^^ *T l^^^'^ ^^^^ ^^ ^^^^ ^*^^' that the judgment in the common pleas was ^Vhcn 
out of doors'! * only three Juftices were there, and one of thofe three was againft 
Rd Ab 8 tl^a^ j"^g"^^*^^' Et adjcurmHur. — Afterwards in yi//c^. 7'<?rni' 40. ts^ 
jiTer'mR.Iyo.^^* ^^^^' the judgment was revcrfcd, for the matter in law. 

' ca$i aS. Goodale ci^rciinji Butler. 

Fr.ftfr Term, 38. Eliz. Roll 1 18. 

A clergyman TNFORMATION upon the 21. Hen, 8. c. 13. f. 26. ofnon-rcfi- 
^'\ih cure of fouls ^ dcncy. Thc defendant pleaded not guilty; and a fpecial vtr- 
muftrdideiVi did. was found, that the defendant was parfon of Doivfiham in 
houfe^^ foHf lie •^'^'"^''^'^' ^^^^ ^^'^^ ^' parfon^ge-lioufe and glebe-Iand within the 
livts in any parffh ; but he inhabited not therein, but in a copyhold tenement, 
otherhoufe,tho' which he had in riglit of his wife in the faid parifli ; and he al- 
wlthin hif pa- ^vavs fcrvcd the cure : and, Whether this were a non-rcfidcncy 
[*!!;; ^! 7i'" *'*witiiin the flatute > was the qiufiion.— After arc:ument bv Tan- 

liable to the pe- /- , , . - .^ 1 a ^ .- 1 • - 7 1 'r .t 

naltiesofii. rilLLD /or the pla.';it>ff, and Atiioe /j;r the acfiyidar.t, XhQ Juincts 

i/<* 8. c. >3. dclivcnrd tljcir rcalbns fevcrally. Gawdy and Popiiam hf:\^y 

^•*6' that it w;is not a rcfidcnce according to the fiatute, which was 

6. Co. 21. b. made for three caiifcs. Firft, 1 hat the cure fliould be fervecl^ 

Browni. 54. Secondly, That the poor fhould be fed. Thirdly, That the par- 

CoJdf. j6f;u fonage-houfe Ihould be upholden and maintained.; which laft 

cannot be, if the incumbent doth not inhabit Tt. And if the fta- 

tute fhould be otherwife conftrued, many inconveniencies would 

cnfue J for par|bns would purchsXc otlxcr houfes wiUun tlieir pa- 

rifhcsi 



Michaelmas Term, 39. and 40. Eliz. In B. R. * 59? 

rifhcs, and be always rcfident upon them, and fufFer their parfon^ GooPAti 
agc-houfcs to da:ay, ^ndjhnlnate their glebe-land, and meliorate g^*"J^ 
tlieir own poflcilions in prejudice of taeir fncccffors. And, as 
Gawdy faid, the ftatute, which faith tliat *' he fhall be refident M«>'^54Q- 
" upon the benefice," ftiall be intended where tliere can be a refi- f^g, '^^^ '^^ 
dcncy ; for he cannot be refident upon the tithes, nor upon the ^^ Bulft.,x^. 
rlebe-land, where there is not any houfe ; therefore his only ha- z. Co. 98. 
oitation is within his parfonage-houfe. — Clench and Fenner 4-Co. u. 
i emtra. For they held, that if he he refident within his benefice, 5- ^o. m. 
(which extends to the whole parilh) it is fufficient; but if he be /co-^s! 
refident upon any other houfc adjoining to his parifli, but not co. Lit. 29. 
within his parifn, although he every Sunday and holiday ferve Hard. 387. 
the cure, yet it is not fufficient, as it was adjudged here in Brown '• ^*"^- *4-5- 
r. Hud/on {*). And they faid, that the intent of the ftatute for his ^ndlcws^a"! 
refidency is, that he Ihould pa/ccre gregem ab^^^exemployet verba ; all stranpc,iio3. 
which he may do, w|^eri he is refident in any part of the parifh. z, Bl. Rep. 906. 
The ftatute is in the disjunftivc, viz. *' in, at, or upon his bene- 
fice ;" et in disjunllivis fuffiat unum ejfe virum ; and it is clear, 
that all the parifli is his benefice ; fo he is refident in his benefice. 
But peradventure he is n<Jt refident upon his benefice, unlefs he 
inhabits within the parfonage-houfe (But Note, The ftatute is 
in die copulative, *' in, at, tf//^upon his benefice'*). The ftatute 
aifo cannot intend refidency upon the parfonage-houfe ; for there 
be divers parfonages which have not any parfonage-houfe (^2) ; 
but it may be aliened by the former parU)n, with the confent of 
his patron and ordinary, or let out, fo as his fucceffor cannot have 
it ; and therefore his refidency may be in any other houfc within 
the parilh. Whcrefdre, &c. And Fennlr faid, that L, C. J. 
Anderson was clear of hisK)pinion, that it is a fufficient refidence, 
if he inhabits within any part of the parilh. Et aefjournatur (b). 

(tf) Where there isa parfonagc-hourc, the [b) L^^rd Coke fays, it was re/clved by 

rtAoc mud himlVlf perfonaily rcfide in it; theCourt\T\ EaUer Term follow. ng in fa- 

and the w:.nt of a p.trfonaee- houfe is no vour cf the plainilfT. that this was a «««•!#« 

txcufe for his reHding out oitbtparijh Adj. Jidet^y.-^-fi. Rep. 21. k>. 
t 16. G, 3. Wilkinfon V. Alcctt. Cowp. 
429. See alfo5. Burr. 27221 accotd. 

^*) 2. Roir* Rep. 90. 

Heddy agai^ft Whcclhoufe, ^^" ^^ 

'T'HEcafe was now moved again. — And after argument at the bar, ifJlberrics ere- 
* PopHAM, Gawdy, aad Fenner delivered their opinion, ^^ d^ nwo by 
Thatby the faid grant of a fair a4m omnibus iwcrtatibus^ tsfc. toll is l^^^i^^t'^fn^^"** 
not due nor demandablc , for. toll is not incident to a fair, as crown?fhcy ars 
common experience proves ; for the grcateft part of the fairs in not merged} 
lin^land have not any toll. But by exprefs words in the king's hot if they wem 
grant, the grantee mav/havc toll ; fo he may have poizage, or pon- *PP«"^*"^ ^^ * 
tagc: for thje fubjefts thereby have a greater benefit for the J^!^^^^^ 
money they pay for it, viz, in th^ one cafe, true \veights ; and in cxtina on their 
theotlier cafe, of paflage over water which otherwife was not well return to the 
fordable. But Popn am faid, the cafe may be, that by the king's «|;^^,"> »"<* ^^^ 
grant with fuch words as here, toll may pafs : as where one hath fhem w^^^^^^ 
a fair by grant or prefcription, whereto toll hath ufually been ,^!^Ame75s8, 
paid, which afterwards is forfeited to the king,, and the king then a.tnft.220. 
M«or,47^ 9* ^^ *5« ^« Jones, 2S^- 270.' 1. And, 87. V^tr^ 517. 3, Mod. aoo. *• Sira, t\fu 

R r 4 grauu 



59^ Michaelmas Term, 39. and 40- Elfe. In B. R, 

Hbddt grants it cum omnibus Ubertatibus adhujufmodt feriamfpeSianubm ; by 

agcdnjt this grant the grantee Ihall have toll, for toll was foraierly be- 

WvECLHovtv. longing thereto. And therefore the king's grant did not grant a 

9. Co. z$.b.3o. new fair, but the andent one ; for it was not extinft by the king^s 

10. Co. 64. pofleflion ; and therefore there is a difference, that fuch liberties 

which a common perfon hath by prefcription or grant, and 
which if the common perfon had not, the king himlelf fliould 
have throughout £«^/i7«^, as waif, cftray, wreck, &c. tliere, if the 
common perfon hath theni by grant or pi*efcription, and they 
come to the king by forfeiture or othcrwile, they are extinguifli- 
cd in the crown, and the queert fhall have fuch liberties by her 
prerogative, and they cannot afterwards be granted but by a new 
creation. But fuch liberties which a common perfon hatli by 
grant or prefcription, which the king (if fuch prefcription had 
not been) could not have by his prerogative, as warren, park, fair, 
market with toll, &c. if ihefe come to tliecrown, &c. they remain 
inejje^ and arc not extinft' ; for if tlie king Ihould not have them 
by this means, they would be loft. — Wherefore, abfente Clench^ 
it was adjudged for the plaintiff. 

Casx 30. , The Earl of Shrewfbury again ft Sir Walter Lewfon, 
On a/fir*/«<riai CCIRE FACIAS in chancery, as adminiftrator to George Earl 
jw adminiflra- '^ of Shrewjburyj MpoTi a reconufance of four thoufand pounds, 
tor, the letters conditioned for the performance of covenants. The parties being 
pteJed widi a ^^ ^^^' ^^ ^^^ ^^^^ hither to be tried j and it was found for the 
frofert. * plaintiff; and now moved in arreft of judgment, becaufe it is not 
Ante, 551. mentioned in the writ, qu-^d profert literas admimjirationis^ feV. (a). 
Doug.4.n.(i.) — But becaufe it was in a writ founded upon the rec/>rd, and 
Sec 2. Bac. Abr. the courfe is not to mention it in writs, and fo be all the prece- 
fhecl^^ h"** dents in the chancery, it was therefore ruled to be well cjiough. 

j^caestcrc ^^^ ^7. //r«. 6. 

(a) Sec 4. &. 5 Ann. c. 16. Hob. 233. i. Vent. 2MI. \» Sid. 9$. 

Ca«i 51. * Grondy againft Ifcharn. 

Hilary Term, 38. Elix. Roll 828^ 

Outlawry re- ipRROR to rcverfe an outlawry. The error affigned w^, Becaufe 
vcrft 1, lor an H* t|,g capias was —ejle Edmundo Anderfon ; fo as 7 was wanting : 
wrinT" flj?« of f°^ ^^^ Kl^^ ^^ ^^^^^ v^rrant of the writ, and fo it is^ of judicial 
thj writ. writs ; a!id therefore the outlawry was reverfcd. 

i.Cnm.D:g.46. I. Show. ^o. 3. Bac., Abr. 767. DougU 194. 

Caje 33. Waterhoiife againft WoodftrecL 

//; the Exchequrr C'^amber. 

On aflTct. found f^RROR in the exchequer chamber of a judgment in the 
iudjj'.c:nt fhall ^ - q^j.^cn's bench for lool. ao;ainll an executor, who pleaded riem 
debtVurVex! ^'w/rr main ; and found that he' had 50I.; and judgment, " quidrecu- 
ccutlon ihoJl h- *' p^'^^ debit um pr^ditlnm ; et quod habeat evtcutionem dc bonis tejlu- 
only forth. A- " toris, ^c,** The error alfignefl is, Becaufe the judgment was 
fcis in hmd ; fo^ ^h^ cAtiie, whcrc it ought to have been but for t\\t fifty pounds. 
and Afcrrfaci. j^^^j j^ ,^,.^^ j-^jj ^j^^^ ^1^^ judgment fhould be for the entire ; and 
aftccwardj* on ^^'^^^ "^ might have fctreftictas upon the judgment, when more ai- 
thw- judgment, fcts caine to the executors ; and fo is 46. Edw, 3. pL 9. and fo aw 
Ant'-, 318. the Dre-jcden^s here, viz, Pafch. 31. Eliz. Roll 131. inUr Haydonl^ 
Po(L .87, MetJord.Hili. i(^, Elit, i?^//'388.and Trin, 38. Eliz. Roll 269.— But 
8. Co. 134.3. ^YiQ I ufticcs demanded more ancient precedents, and would advife, 

Cro. Car. 373. -^ I ..■'... l 

167. I. Re. Ab. 5*9. Moor, 246, Ccwp. S93. 

MKhaclmaa 



Michaelmas Term, 

29. and 40. Eliz* In the-Common Plcas^ 
Sir Edmund Anderfon, Knt. Chief Jujlfce.^ 
Thomas Walmfley, Efq. '1 • 
Francis Beaumond, Efq. > Jujltces. 
Thomas Owen, Efq. J 

Sir Edward Coke, Knt. Jttomey General. 
Sir T. Fleming, Knt. Solicitor General. 



w 



Gorges againji Stanfield, Caih. 

ASTE in cutting down three hundred o?.ks. The dcfen- jt jg ^^n^ |^ ^ 
dant, as to two hundred, pleaded, that the houfcs let to leOeetocm 
him were ruinous^, &c. and he cut them down to <*<wn \ 



repair thofe houfes ; and as to the reiidue, he cut them down, and ^«^««^t'»pw'- 

. ' . . . . ' ' - . po'e« of ivnai** 



keeps them to employ about reparations, tempore opportuno^ is^c, ^^^ tierMjUM 
Upon this plea the plaintiff demurred in law. — And by all the he ^cc'ifi^a. 
Court ffans argument J it was held to be no plea: for if it fhould, Co. Lit. 53 h. 
every farmer might cut down all the trees growing upon the fend, » Ro. AiuSiow 
when there was not any neceffity of reparations. . Wherefore it " p^* *54^ ^ 
was adjudged for the plaintiff. ct^T' "^ 

Lcuknor againft Huntly. CAi« *• 

r\EBTiiponan obligation. The defendant pleaded, that one ^^ ^^^ ^ 
^^ Jacques brought debt i:i London againft the plaintiff, and ac- ^ ,„d, a plta 
cordmff to the cullom tiierc, attached this debt now demanded in in bar luat thp 
the defendant's hands, and pleads the recovery, and j udgmcnt fi«^t <i««na«*cd 
there, &c. The plaintiiF replies, that before the attachment, the j*^*"^^ ^\ 
laid Jacques brought debt in the queen's bench againft the now £^^ ^^ 
plaintiff for the fame caufe ; and, hanging that fult, this attach- fuitofathirf 
mcnt was iQade, &c. And it was thereupon demurred. — Glan- pcrfonagaiml 
viLE,/or the defendant, moved, that the plaintiff fhould be barred :' ^^ plaintiff, it 
for although one cannot attach a debt in London^ for that a fuit ^nteiic? 
Is here depending in the queen's bench (as it formerly hath been po^, ^f^] 
ruled in this court), yet one who hath conceived an aftion here, ^^ 
may affirm a plaint in London for the fame debt, and may make an '^^ "* ^^ 
attachment of the party's debt, according to the cuftom ; for there a. ch.Car. z^r. 
tiic debt in queftion is not touched by the attachmc.it; and the i. Hiic. Abr. ' 
plaintiff might now have pleaded this attachment in bar, for fo 6:rf• 
much of his debt in the aftion brought in the queen's bench.— ** ^^- ^*^P- 7*^. 
The opinion of the whole Court was, that the plea in bar w^s, 
good ; and judgment was commanded to be entered accordingly (a). 

(a) Tliifc judf menc wa» rcverfed on a point o\ lorm.— Poit. 713. 

^ Rothcrham agawfi Green. . Casi v 

^•RESPASS. The defendant pleads, that TVdliam Green, his ^ ^^j^f^^^' 

father, was feifed in fee of a tenement in L. and that he and ofacom.^on* 
' all his anceftors, and all thofe, &c. in the faid tenement, from time cxtinguimc* ch^ 
wl\ereof, 8cc. have ufed to hayc common in the place, where, &c. whole 
for all their beafts levant et coucbant upon the faid tenement ; and 2. And. 89. 
that \\ defcendcd unto him., &c. Iffue was taken upon the pre- ^'^<*^- J>4«. 
Icriptiou, and a fpccial verdift (ound, viz. tliat Edx\,\iyd Green, ^'°'» ^"' 

granJfathcv 



594 JVIichaelmas Term, 39. and 40. Eliz. In C. B. 

^°I"a;«>? *** grandfather to the defendant, was feifed of the tenement i and 
GitEji, ^^^^^ '^^ ^"^ ^^1 ^^^ anceftors, and all whofc, &c. from timewhereof, 
&c. bad ufed common, &c. (according to the prefcription) ; and he 
being fo feifed, releafed to Sir Thomas Rotberham^ the plaintiff's an- 
ceilor, all his right, and his common in part of the land, where he 
had the common, and died ; and tlie tenement defcended to fVlUiam 
Greertj and from him to the defendant. Et^, bfc. — Drew prayed 
judgment for the plaintiff. For by relcafe of the common in part of 
the land, the whole common is gone, and extinft ; for otherwifc 
the tenant of the refidue of the land Ihould be charged with all the 
common, which is not reafonable. And thereupon it is, that if a 
lord releafcth his figniory in one acre, all is gone; as 21. Edw.^- 
*-* Scire Facias ^^* 1 12. is. — Spurling e contra • becaufe the common 
is appurtenant, and it is for the manurance of the land, and ftands 
with common right. — Anderson. This is not a common of com- 
mon right ; for it is for fwine and Iheep, and it is not like to — , 
Dyer^ 339. wliere the lord improved part of tlie common, leaving 
fufficient to the commoner, and infeoffed a commoner of that part 
improved : for there the common is not extinft ; becaufe the knd 
improved was difcharged of common before the feoffment. But 
this is like to Ramptons Cafe^ which was adjudged in Ahis 
court ; where one having common in a great field, wherein many 
men had land, he purchafed an acre from one of them, it was ad- 
judged, that all this common was extinft, &c. So here the com- 
mon alfo is intire through the whole land : wherefore a releafe in 
part fliall difcharge die whole. The prefcription alfo is general, 
^. 00:^8. a. to have common in all the place, where, &c. and the jury have 
Ante 57«. found a relcafe in part of the land, and therefore the prefcription 
oT'^Car.'" I. ^^ ^o^^"d againft the defendant. — Beaumond and Owen agreed 
'*^ ' with him in both points : but Walmsley held, that the com- 
' mon was not gone for the refidue ; becaufe this releafe went in be- 
nefit of the tcr-tcnant,and it was as an improvement by him: but, 
as touching the prefcription, he agreed, that it was found againft the 
defendant, for the reafon abovefaid. — Wherefore they all agreed 
againft tlie defend;int. And it was adjudged accordingly. 

^****» Tifdale againji Bcdington. 

^n aaioD doe» A CTTON upon the ftatutc of m.aintenance, for maintaining a 
Ticiiiejoffnain- -^ fuit in the fpiiitual court. — Warberton moved, that this 
ft rr'^ai "urf*^ aftip" lay not ; for the ftatutt of i. Rich, 2. c. 4, whereupon this 
f)).ri[ua cour . ^f^j^^ jg founded, is to be intended only of maintaining fuits in 
i^^H*awk' c Sa ^^^ courts of common law; and upon view of the ftatutc, thk 
i\^fi^ ' ' WHOLE Court was of tliat opinion, and willed him to demur. 

— Drew remembered a cafe in the court, m EaJier'Term 37. £/Vr. 

Ccjijianiine v. Barns^ whereupon it was ruled, that no action lay 

for maintaining a fuitin the fpiritual court, 

^-^'^ 5« Edwards agairiji Yttl. 

By the grant of /^UID JURIS CLAMAT upon grant of a reverfion by fine 
a rtvcrfioo a re. V^ by /. 5. and. the tenant pleads, that 7. 5. had nothing 'in re- 
"afs"**^^ verfion at the time of the fine levied. — Gl an vile moved to the 

Piowd. 154. Court, that the truth of his cafe was, that the land was the l^nd of 
Hob. 27. the tenant for life, remainder to 7. 5. in fee, who by fine granted 

Ld.Raym.187. itby the name of a re verfion. — Walm^ljey, Itisclearthciii ti>at 

a.BLCom,379, ^ ^ 



• Michaelmas Term, 39. and 40. Eliz. In C. B. 5^ 

the rcverfion pafled by that fine, and you may Ihew that fpecial ^^^w^/* 
mtter in your count, and that will help you. ^iodfuit concejjum p1*^L 
^<r 6mn£s Jujiit'mrios, 

Somerfet again ft Markham. CA«»f. 

pROHIBTTION, to ftay a fuit in the admiralty court.— It was Prcjhibitfen. 
^ agreed p er Curiam, that if one fued in the fpiritual court for a Ante, 88. 
jnatter whereof they have jurifdlftion, and therein a plea is plead- P^^^- 666. 
ed, which is triable at the common law ; yet if they will allow the Cowp.42z. 
plea, they (hall have jurifdiftion thereof, and try it ; othcrw^if<5 a 
prohibition lieth. — It was also held, that ir one anfwers to a 
fait in the fpiritual court, and fufFers fentence to pafs againft him, 
he never fhall have a prohibition (a) : and if he brings an appeal, («) f>u^re^it 
the defendant in the appeal fliall not have a prohibition. And ir apptars th^ 
this .was the principal cale here, and ruled accordingly. thcfptmoal 

#»^«ifaM«<-« of the caufi f'-^(nvp, ^z^, Ddugl. 378. I. Term Rq>. 552. 2* Term Rep. 473. 
3. Term Rep. 3. 315. 

Wykes againft Tyllerd. Casi 7. 

p EPLE VIN. The defendant made conufance, as bailiff to one a rent may h% 
•^ Ryfden, for rent rcferved upon a bargain and fale of land by reftrved upon a 
indenture enrolled. The plaintiit thereupon demurred. bargain and iale 

Glanvile prayed judgment for the avowant .* for he faid, he )jj^^l^ ^J^ *^' 
knew not any . caufe of demurrer, unlefs it were, whether jliere and theWg .in- 
might be a refervation upon a bargain and fale, which is a com- or may diftrain. 
mon cafe ; and held that there may. Co I t 

Walmsley. But I will maintain it by. reafon: for nothing j.^Kon. Abr/' 
pafled by the indenture but the ufc ; how may then a rent be re- 44S. 
fen'ed thereupon ? a- ^n^. ^73- 

Anderson. It is clear, that at the common law fuch a refcrva- ^5^"* ^^ 
tion had been void : but now the bargainor fhall have the rent by car'th^ I'^L 
thcfaving in the ftatute of ufes, ** where any are feifed, to the j. Wood's Cca. 
*' intent that any may have a rent.*' Andfo i^was holden in Dart- ^5^* 
hit's Cafe. And I havefccrt a judgment in the very point, that the 
lefervation was good. — Andfo 'all the Coup^t agreed in this 
cafe. Wherefore, without further arguipeut ^t the bar, or bench, 
it was adjudged for the avowant. 

Stratfield ago.ir.ft Dover. CAst ». 

Trinity Term i '^(^. Eliz. Roll i^lj^, 

T^RESPASS. Upon demurrer the cafe was. Tenant in fnil of a a fine by a f^if. 

gift from the queen is difiei fed. The dillcifor levies a fine <cfeot an dure 

with proclamations ; the five years pafs; the tenant in tail ^'^^ • ^J^^ kf^''*^ and'^ 

Whether the iflvie fhall be bound or not? was the qiieftion. ^^ years *no;^- 

Anderson held, that the iflue fhould be bound ;* for he h not claim, fliail not 
helped by the 34. Hen, 8 c. 20. (a) although it hath bcren bar the iffuc in 
poaceived, that where a fine is levied by a tenant in tail, his ilFnc "'|» T'^ *!* 
may be aided by this ftatute; which the other jufticcs agreed unto, [hc^crown!* 

Walmslev. This cafe is to be well advifed upon ; for he con- c«. Li:. 373. «. 
ccived, it was to be remedied by the equity of the ftatute: it would Moor, 467. 

«. Co, ^X a. Cro. Car. 430, Scd vide i. Sid. 166. i. Wilf. 275. 4, Bac. Abr. iq6. 4« ^^^^^ *aH* 

(«• This fbcute does not extend to 'an to the king. — Co. Lit. 37V b. Cruife^ 
eftste tail made by a fubje£l, though he nf- a^S* P»^ot, 95. 



ftryrardi |;ra^^ x^z. remainder or rcverfiopi 



Pthcrwifc 



59^ Michaelmas Term, 39. and 40. Eliz. In C. B» 

STRATFiEtD othcrwifc bc a common m'ifchief, tliat donee in tail of the king 
Dov'm. would fufFer a diffeifin, and tlic diflcifor (hould levy a fine» and 
thereby bar tlie iffuc (^). 

(}) It wa« moved asain, and adjadged for the defendant. 

Cai« 9. Read againft Burl^. 

Yarn which has j\ EPLEVIN. A clothier put certain wool to a fpinncr to fpin, 

^.*i?°1.!?L!i and afterwards came with an horfc to bring back die yarn : 
dothieTf earned ,. -, , • ^ °' % r - j 

into a neigh. ^^^ becauie there was not any beam or weights m the Ipmner s 

bour'» boufe to houfc to Weigh it, the clothier and fpinner, oy the leave of one of 

be weighed, the neighbours, who had a beam and weights in his houfc, brought 

""hThS^^r ^^^ horfe thither, and entered therein to weigh the faid yarn ; and 

diftrcft forrenf. wliilft they were there, the landlord of the houfe diftrained the 

See s.c. ante, horfe and yarn for his fervices : and, Whether the taking hereof 

549. by diftrcfs be lawful, or not ? was the qucftion upon demurrer. ' 

Anderson, Beaumond and Owen held, that they arc not dif- 
traiiiable ; for the trade of a clothier is fro bono publico^ who ought 
to be allowed all neceffary means ; and without doubt cloth put to 
a weaver to be woven, or yarn in an boufe to bc fpun, arc not dif- 
Har. Co. Lit. trainable (^wc^/ W almsley agreed) ; and weighing it is as neccifary 
47. a. as the former; wherefore the yarn brought thitlier for that pur- 

Vote (12.) & pofe, and the horfe which brought it, are privileged, and are not 
^^^iMt. n 8. <iiftj^aJnable. And although (as it hath been faid) if the weighing 
i! Roll. iU>.' had been in a public hoyfe for that purpofc, they had not been 
668. there diftrainable ; for it is a place privileged for thcfe purpofes, 

«. Bulf. 270. as a Carrier or taylor's Ihop ; but being now brought to a private 
^'sSk *^'* houfe for that purpofc it is not To; he faid, that the caufe of the 
See the cafe of bringing privilegeth them: as a horfe which carrieth corn to a 
Francis v.Wyat, market, and is fet up for a time in a private houfc, is not dif- 
^^Bun-«i498« trainable, as Be A UMOND faid, 1 ecaufe his purpofe of bringing 
the horfe was tro bono publico, — OwEi^l alfo- held, that they were 
not diftrainable for another reafon, for that they always were in 
the poflfefTion of him who brought them ; as it is of a horfe where- 
upon one rides. Wherefore, Sec, 

Walmsley ^' rc«/rfl; becaufc it is not averred that it was a 
common beam, or place for weighing ; for there is a difference 
^)ctween a common place and a private houfe. 

Sed adjournatur. And afterwards it was adjudged^ that the 
^^llr^fs was not lawfuK 



IW?7 



Hilary Term. 

40. Eliz. In the Queen's Bench. 

iSilr Joha Popham> Knt. Chief Jujiice. 

Sir Francis Gawdy, KnU j 

Edward Fenner, E/f. > Jujiiceu 

John Clench, Efq. ^ 

Sir Edward Coke, Knt. Attorney General. 

Sir Thomas Fleming, Knt. Solicitor General. 

Hobs asainft Tedcaftle. , q^^^ ^- 

Hilary Term, 38. Eliz. Roll Sy 6. 

AUDITA QUERELA. The cafe upon demurrer was, j^^j^^ rin'ai* 
/A Tedcaftle fued a bill of debt againft Holloway in this court, die before thif 
■*• ^ who put in bail (Hobs the plaintiff, and another), which ca^wms award- 
is entered in this manner: *' that they acknowledged, that if the de- cd againtt him, 
" fcndant was condemned in that fuit, that he fhould pay the ^« bail upon 
** condemnation, or render his body to prifon, otherwife they ^ ''^g^^'jj.** 
" would pay the condemnation for him." Afterwards Holloviay charged, 
the defendant was condemned, and died before the condemnation Poft, it6. 733* 
latisfied, or his body rendered, &c. Whereupon a fare facias was i- RoH. Abr. 
awarded againft the bail ; and after two nihils returned, execution 333 339* 
was awarded, and the plaintiff taken m execution : whereupon he 'lu'^*,*^* ^ 
brought this audita querela^ furmifing the death of the faid Hollo ■ Moor, 4%! 
way the defendant. — The Court demanded of Kemp theircourfeCro. jac. 47* 
in this cafe of the time of awarding execution againft the bail ; 9?- 481- 
who faid, that always after jiidgrnent diey awarded a capias againft s^t**^' 
the defendant ; and upon a non ejl inventus xtimntA^ they awarded a ^^uJ^,^*^^^ 
fire facias againft the bail. But there was not any capias awaTdedr4. Leon. 36. 
here againft the defendant.* The Court held it to be very tea- Ld. Raym. aSf* 
fonable not to fuc execution againft the bail, until there was de- ^45»- 
fault in the principaL The reconufance of the bail that the prin- \^,^^^^^^\^ 
cipal fhould render himfelf, &c. is to be intended upon procefs x.\Wh. [169/ 
awarded againft him, &c. and here there was not any procefs Burr. 1360. ' 
awarded againft him in his life-time, and' therefore the Dail is ^- ^^^ ^^^' 
difchargcd. And fo it was adjudged for the plaintiff. • *'|*^-^ ^^ 

Do«gl.45. *». Term Rep. 576. 3. TermRep. 390^ 

Charter agatnft Peeter* Ca^i2^ 

pIERI FACIAS was awarded upon a judgment given in this a i^/urfi/ww c*- 

court, by force whereof the fherifF took the defendant's ^off^i (hall 50 
goods in execution ; and before fale, the record was removed by forfhefaicof 
a writ of error into the cxchequcfr-chamber, and ^ f^P^fi^^'*^^^\^^^l^^r\ 
aw^arded. And the (heriff returned upon the fieri facias a fei- ^^^,^ y«/>*7<* 
zure of the goods, and tbat they remained in his hands pro defeifu Ante, 138. 
f^piorum : and he alfo returned, that zfuperfedeas was awarded^ &c. Poft. 60a. 

VtW. ^4. Sid, 43S. I. Saund. 47. Mod. 751. Vent. 52.95. Cro. Jac. 515, Godb. 276. 
T. Burr. 2^. 6. Mod. 293. Cowjp. 406. a. Bm. Abr. 370* ^. Bac. Abr. 6S5. a. Hawk. 4184 
i.TtteR€p.0.R.73O* 

And 



55* Hilary Term, 40. Eliz. In B, R. 

Crab TEE ^^d hereupon it was prayed for the defendant, that he might hard 
pfETER. reftitution of his goods. — But all the Court held, although this 
record be removed, and notwithftanding the fupcrfedeas awarded^ 
in regard it came not unto the IhcrifF until he had begun to make 
execution, as appears by his return, that a venditioni exponas ftiall 
be awarded to perfeft it ; and although the plea roll be removed, 
yet it (hall be awarded upon the return of the fieri facias^ which re- 
mains filed in the office. And fo it was likewife done in the cafe 
of Sir Afiles Corbet v. Rookwood^ Trinity Term^ 39. Elii. Roil 406. 
in this court ; although the record was there removed by a writ 
of error. Fide Dyer^ ()g. 

See 3. Geo. i. ,c. 15. f. ]9» 

Ca^^z- Raftal againjl Turner. 

39. Eliz. Rcll ^i^. 
tf a'dopyholdcr T JECTIONE FIRM^. Upon a fpecialverdia the cafe was, 
lor Dfc commit LL, j^^^^, CurJv, tenant for life, revcrfion in fee of a copyhold to 
ciuir^ne*,a!id ^^"^^^'^'^ Cundy hcT fon. The tenant for life fells it in fee ; and 
not that in Ve- ^^^ afliirance it was devifed, that Ihc Ihould make wafte to com- 
nuindtror re- niit a forfeiture, and that the lord Ihould enter for the forfeiture, 
Terfionftiail be and lliould grant it to the vendee in fee. She committed wafte in 
forfciiedj jrfpc- burning an out*houfc, which was prcfented ; and the lord feizcd it 
Jriture was wl- ^^^ ^^^^ wafte, and granted it to the vendee upon condition that he 
lufite. fhould rebuild the houfe, and that he fhould pay fuch a fum to 

Poft. 880. the vendor. The tenant for life died ; the heir in reverfion (being 
i.RoU. Ab.50?. admitted) entered upon tlie vendee; and, Whether his entry were 
9. Co. 107. a- congeablc? was the queftion.— Gawdy held, that it was ; for the 
Yeiv. f. coiluiion betwixt the tenant for life and the vendee to take away 

^^m!^/^* the inheritance is apparent, to which fraud the lord was confent- 
Hob. 177!^' "^S » ^^ ^^ manifcll by his demifc by copy to the Vendee, upon the 
Cro. Car.'7, Condition yi//)r^, l5fc\ ; therefore he fliall not have advantage of this 
t.Wiif, 13. 16. forfeiture, efpccially againft him in reverfion, being a ftranger. 
i.Bac.Abr.487. ^qJ \^q conceived that no forfeiture of a tenant for life (hall by 
iub^T^n^'al*.' '*^ P^^J^^^^^ '^^^ ^^^ reverfion or remainder; as, where tenant 
300/ ^^^ ^^^^ of ^" office commits a forfeiture, it (hall not prejudice him 

LJ.Raym.iooo. ill revcrJion, as 39. Hen, 6. is. So here, although it were a for- 
Cowp. 702* feituic during her time, whereof the lord might have taken advan- 
1. Term Rep. ^gg^^ y^j. j^ ^^^^ ^^^ prejudice or bind another. Wherefore, al- 
'^ ' though the other Juftices were abfent in parliament, yet becaufe 

he conceived it to be a clear cafe, he commanded judgment tc bm 

entered accordingly. 

CAfi4. Paramore againft Pain. 

Micbatlmaj Term, 39. i^ 40. £//«• Roll 547. 
To a plea of "T^EBT for forty pounds. The defendant pleads, that the plain- 
** /of tigfi afiach' -^^ tiff was indebted unto him in 40I. and he therefore fucd 
** T*C **^* ^ plaint in London^ and there ^his' debt in demand was at- 
r«'iy?th«^c cached in his hands. And he pleaded the .foreign attachment in- 
was not iWri-/^^ certain, and tlie judgment thereupon, &c. The plaintiff replies, 
tothedcfendam. that he was not indebted to the defendant in 40I. nor in any other 
Port. 830. fum. — And it was thereupon demurred by Tanfield. Fpr the 
i.Roll.Ab.551. debt is not now traverfable, becaufe it is recovered in London; ct 
Lut. 993. non difrationatur mth'm the year and day, as it might be by tlic 

Jccm df'^'^26 cuftorn.— But Coke, Attorney General^ moved, tliat tlie replica- 
3. war. 301. DcujK ixa, !• Term Rep. 557. 



Haary Term, 40. Eliz. In B. R. 59S 

tion was good : for whether h€ were indebted or not» is very well ^^j^^^|^*" 
iJjaWc ; for if he were not indebted, they in London could not p^X 
tnch the plaintiff's debt by a foreign attachment for nothing. — 
hsA (o was the opinion of the whole Court. — And Fenner 
ivA^ that in the common pleas, 22. ^ 23. Ellz. it was fo ruled in 
oae Bray^s Caji* — Wherefore it was here adjudged for the plaintiff, 

Pigot againft Hearn. CAt« y. 

Mkbaelmoi Htrm^ 39. fe $p. Elite. Roll 199. 

A CTION of trover of certain com. The matter in law, where- ^J^^'°^" _ 
**• upon the demurrer was grounded, was. The lord of tlie ma- ^7to tau^" 
nor oi Prudjhvu)^ within the p&rifh of Ov'ingham^ in the county of aii tithes widiin 
y^rtbwnberland^ prefcribed, that he and all his anceftoi's, and all hii manor} but 
thofe whofe, &c. had ufed from time whereof, &c. to pay to the J?^.^"'* P^- 
prion of Ovingham (the now plaintiff) and all his predeceffors 61. J,"^^-!*]J^ 
for all manner of tithes growing within the faid parilh ; and that sfcand not d^- 
by rcalbn thereof he, and all tliey whofe, &c. lorcis of the faid ma- €imas gmrharumi 
nor, had ufcd from time whereof &c- to have dcclmam garbam^Jiv€ f^rit is a prohi 
dicimum cumulum ^arbarum^ feu granerufk^ of all his tenants within "j^^*"^'*^ 
the faid manor ; and, Whether thefe were good prefcriptions or ^thM^^*^' ^ 
not? was the qucftion. — Po?ham, Gawdy, and Fennkr held, Ante,'»93.5it. 
that they were good. And as to the lirft they conceived, tliat a 5^7- 
K^idiu decimandioy the lord for hinifcif, and all the tenants of his P^^' 7^3- 7^5- 
manor, to bar the parfon from demanding tithes in fpecie, is s.C. Moor,4Sj. 
good ; for it might have a lawful beginning, viz- that before it was *• ^' 44f 4S- 
a manor all the lands were in the lord's hands, and 61. was paid for ^^j^^^a n^. 
the tithes thereof; then when he conveys parcel thereof toothers, j'cac/Abr.'iji 
it Ihall be difcharged, as it was in the lord's hand ; as in the calc C4, 
oi D^eior Cotton^ ante^ 587. And, as to the fecond prcfcription, 
that it was good to have the tenth (hock, &:c. ; for he hath it as a 
profit i2^rf;z^, as parcel, or a thing appurtenant to his manor, and 
not as tithes ; for a layman cannot have titlics by prcfcription, bc- 
caufe he is not capable of them, in regard they be fpiritual: but he 
may have tlic tenth (hock, as a temporal pi ont a prmdcr \ as 
44. Edw. J. pU 5. And it well may be parcel of a manor ; other- 
wife of tithes which cannot be faid to be parcel or appendant tg 
a manor ; as it was adjudged in HlncJji's Cufe^ 34. Eliz.. and fo is 
the book of lO. Edw, 2. />/. 5. And thcrctbrc it the lord had pre- 
fcribed to have had aedmas garharum^ it had been ill ; but whei\ 
he prefcribcs to have dedmam gar bam ^ Cffr. it is othcrwife ; for fo 
tlicreis a difference betwixt the yileading for tithes, which are fpi- 
ritual, and of a t^nth, which is temporal. They alfo agreed, that 
if the 'queen was lady of a manor, (lie might prefcribe to have 
tithes ; for (he is capable of them, althougli they be fpiritual ; as • 

22. yljjife^ 75. for (he is mixta pcrfona^ et cupax Jpiritualis jurtfdic^ 

thnis; as 23. Edw.^, ** JiddeRoyJ*^ — Wherefore, fl/^/9w/^ Clench, 

they adjudged it for the defendant {a). 
(«) Dykes V. Tboinproni 5. Feb. 9. Ann. 17 lO. in the exchequer «fcor</.—Z., C. f. 

Matures againji Weilwood. Ca*b 6. . 

r^OVJENANT. Upon demurrer the cafe was, j1. leflee for An a«ion will 
twenty years, grants it by indenture to IFeJlwood for ten years, ^*^ ''X ^^* ■^'8- 
whcrein he covenants at the end of the term to leave it fufficicntly ^^^\^^ ^^^ 
repaired, and give the poflcffion to the leffor, his executors or al- aglinft*an undv 
He; on a covenant tolcarcthc premife^ in repair. Ante, 7S. Poft. 617.649. S. C* Couldf. 175. 
^ccr, X50. 525, Ar.d. la. Godb. i6i. Dougl. 1S7. 464. y Term Rep. 394* 



6oo Hilary Term, 40. Eliz. In B. R. 

Mat^^es figns. Afterwards A, affigncd the revcrfion to the plaintiff; and 
W^^TwooD ^c^^f^ ^'^ defendant, at the end of the ten years, did not deliver 
uptinto him the tenement fufficiently repaired, he brought this 
aftidn. — It was firft moved, Whether this aftion lay by the 
Poft. ep. 835. 22» Htn. 8. c. 34. for an affignee of a re^Airiion for years ? And 
J*jJ^5*5-5»7- therein the whole Court held, that it did.— Secondly, This 
i". Wood*s^o'. covenant is collateral, vi%, for the delivering of a pofleffion : and it 
37^ . was not broken until after the term determined, and therefore the 

aflignee cannot have any advantage thereof; for he was not farmer 
when it was broken, but only tenant at fuffcrance. — And of 
that opinion was Fenner. But all the other three Justices 
€ contra : for there cannot be a more apt covenant to run with the 
land, than to leave it fufficiently repaired ; and that is broken in- 
ftandy with the determination of the eftate. Wherefore they 
rcfolved for the plaintiff. 
Pleading. But then an exception was taken to the declaration, t?/2. that he 
did not aver that he had the reverfion at the tmie of the grant. — But 
Dou8l.667.685* j^ jg alledged, that A, let to the defendant for years, and afterwards 
granted the reverfion to the plaintiff; to which grant die defendant 
attorned: and it was holden to be an apparent fault. Vidi 'j,Hcn.'}, 
pL 3. Wherefore for this caufc it was adjudged for the de- 
fendant {a). 

(tf) Sedqusere. Vide poft. B.C. 617. 

CAtE 7. Bennet againft The Bifhop of Norwich. 

One of two T RROR of a judgment in n quare impedit. The cafe was, The 
grantees of the 1 • ^^^^ avoidance of a church was granted to A. and 5. afterwards 
of^cbu°clfmTy ^' rcleafed to B. the plaintiff, and after that the church became 
tcicafc to the void ; and, Whether B, fhould prefent only, or have for die di- 
^ther before the fturbance the quarc impcdit in his own name only ? was the queflion. 
avoidance iiap- — ^j^j jtwas held byALL theCourt that hefhould; for the next 
^"'* avoidance is a thing in intereft, and is grantablc to a ftranger ; 

to. Lit. 470. b. wherefore it might be relcafed by the one to the other ! but if the 
^iT'^'Ab^' s church was void at the time of the releafe made, itwcreothcr- 
4- • '* 4* ^jfg , f^^ then it is a thin^ in aftion, which cannot be conveyed 

over (a). Wherefore the judgment was affirmed. 

{m) See WoWcff tan* s Cafe, 3. Burr. 1506. and i. Black. Rep. 490. and the wfes there cited. 

Case 8. Bowyer againft Garland. 

An aftion win "p\EBT agaiufl an adminlflrator upon an arbitrament made be- 
toot He againft ^^ twJxt the plaintiff and the intcftate, in writing. The dcfcn- 
anadminmrator j^nt demurred.— And, without argument, it was adjudged for the 
wtor^^ghrhave <J«fcndant, becaufe the intcftate might have waged his law : but 
waged his law. othcrWifc it Were, if it had been in dctt upon arrearages of accouatt 
Co. Lit. 295. a. before auditors. 
s.RoU.Ab.t07. 9. Co. 87. Ld. Raym. 24.S. 5. Com. Dig. 260. .x.^alk. 69. Oowp^ 375* 

c^ii9. Afton agahtji Barham. 

VtmrtfaciMs. I^RROR of a judgment in Sandwich. The error affigncd was, 
-*-^ Becaufe that m irefpafs of taking his ox in D. tlie iflue was, 
Whether the place, where, &c, was holden of him, as of his manor 
of 5. by herioty t^c, P and the venire facias wzs 7LW2.rded de vici- 
TUto de D, €t S, whereas it ought to have been from 5. only.-^ 
And for this caufe it was held to be error ; although it were aU 
ledged, that the awarding the venire facias from the vifne oi D^^'^^ 
but furplufagc, and not error, where the viU whence the iffuc 

irifcth, 



. Hilary Term, 4o.Eliz. InB.R, 6oi 

4 

arifeth is alfo named. But it was thereto anfwered, that this (hall Actoh 
not help it ; for it is not awarded according to law. And it may g^^^^ 
be there are many more returned from D. than from S. which the 
kw will not allow of. Wherefore it was held to be erroneous. 
But judgment was not then given. SeJ adjournatur {a). 
(4; It was moved a^KOf ani held, that the vtnut was well awirded. Poft. 620, 621. 

Wilfon's Cafe. ^^" '^ 

TirlLSON was indiaed of forgery upon the 5. Eliz. c. 14. be- ^"i**^?^^^"* 
' '^ fore *' J. and B.juftltiari'ts adfacem^ necnon ad diverfas feto- diaion*in*for- . 
mas^ i^c. audiendum ef lerminandum aj/tgnatls.*'---^ Et per (jAVfDYy ^ery by ^.EJm, 
Fekner, and Clench, it was held, tliat they had hot any power Ante, 87. 
to lake this indiftment ; for the ftatute which appoints that tlie Poft.697. 
ofTcnocs (hall be enquired before Juftices of affife, or Juftices of 9-^0. n?. b. 
tyer and terminer j intend thofe who have general commiffions, and *• ^*^*^* ^' C. 
not thofe Who have butafpecial commiffion only, asjuftice'softhe ^^ Hale, 44, 
peace. But Popham doubted thereof. Cowp. 369. 

Armiger againfi Holland. Cah u. 

T TPON demurrer, the cafe was, Afeye^ parfon of North-Creaky induaXontoa 
^ in the county of Norfolk (it bcinjj a benefice above the value J^** ^f"^ 
of 81. per ammfn)^ takes a lecond benefice, and was thereto admit- void^ithoui 
ted, inftituted, and indufted. Afterwards he was elected Bijhop ^/'fentence of de- 
CarMe ; and before his creation and inftallation, the queen, by privation ; and 
her letters patents, reciting that be was parfon of North-Creaky ^^^^^\^^*^* 
granted to him, that he might hold it in commendam^ non obflante^ ncral'laV-^T t 
tfc. After he was facred, and inftallcd, Holland was prclcnted, the kfng'inay" 
admitted, inftituted, and indufted to the church of North-Creak* by himfeif, grant 
Afterward the Bijhop ofCarliJle let the faid parfonage to Jrmiger^ to a bUhop a 
the plainti£F: and, Which of them had the right? was the "«**^ ?> .*"***<* • 
qucftion.— Three points were made.— Firft, Whether by the or- ""^^J^L'^^S 
dcr of the common law the firft benefice is void without depriva- withftanding 
tion, by the taking of a fecond benefice ? — Secondly, Whether the ^s-H*** *• «•»'• 
ai. Hen. 8. c. 13. be a general law, whereof the Court ought to ^^^^* 39- 54a» 
take conufance, although it be not pleaded ? — Thirdly, admitting ^^^ 6 o. s . 
it is not void by taking the.fecond benefice. Whether it be not void ' ^^^* 
by his being created a bilhop, viz, whether the difpenfation grant- ^^^ ^\ ^^ 
cd by the queen to hold in commendam be good or not, by 25. Men. 8. pav! 71.' 
c. 21- which gives authority to the archbifhop of Canterbury to Dyer, 228. . 
grant it ? — As to the firft point, all the Justices refolved, that 4- in^* 1%^* 
by the acceptance and induftion into the lecond benefice, the firft "*|Jj^*,*Qg' 
was void by thc*order of the common law, without any fentence \ BL^Rep^Aoj. 
of deprivation ; and for that purpofe, 5. £^/«;. 3.^/. 9. Kj,Edvj.^. 
pL 26. 10. Edw.^. pLi. ' 24. Edw. 3. J&/.30. 1 1. Hen. 4. pL 37. 
14. Hen. 7. pi. 28. 12. Hen. 8. pi. 6. 14. Hen. 8. pi. 17. — As to 
the fecond, they held, that the 21. Hen. 8. c. 13. is a general law, 
and therefore needed not to be pleaded, nor any part thereof: and 
therefore by the taking of a fecond benefice, and by the induftion 
to it, the firft is clearly void ; and fo it appears to the Court 
Without pleading tlie ftatute. Vide Dyer ^ 27. — As to the third, tliey 
all ^eed, that the queen by her prerogative, without the arch- ♦ 
bilhop, may grant to a bifnop to hold a church in commendam^ 
notwithftanding the 25. Hen. 8. c. 21. — But for the two firft x 
points they awarded a confultation^ 

cap, f Li?^ PART u, S f Charter 



6o2 ' Hilary Term, 40. Eliz. In C. B. 

^'* « "• Charter againft Peter. 

** Thou art an p'RROR was brought in the cxchcqycr-charabcr of a judgment 
•« fta^i'^^'lre'^l ^" ^^^ queen's bench for thefc words : " Thou art an enemy 
tionibic. ** ^p the ftate." The error afligned was, That the words were not 

Ante, 597. aftion^ble. — But it was adjudged th^tthey w^re 5 for the words can- 
Poft . 6i J . not have any good conftruftion, but are very flanderous. Wherefore 
%, Saund. 307. ^hc judgment was ai&rmed. 
Salk. 696. Ld. Ray. 812. 8. Mod. 183. 



' 1 ' J I ' ♦■ '! 



Hilary 



Term, 

40. Eliz. In the Common Pleas. 

Sir Edmund Anderfon, Knt. Chief Jujlice. 

Thomas Walmfley, Efq. | 

Francis Beaumond, Efq* \ Jujiiccs. 

T\iotms Owen, Efq. ' 

5ir Edward Coke, Knt. Attorney General^ 

Sir Thonnas Fleming, Knt. Solicitor Generain 

Caii t* Keen againfi Cope, 

Hilary Term, "^^^ Eliz. Roll Q^i. 

Aleafcbytc "pjECTIONE FIRMiE. A fpecial vcrdia was found, that 

santin tJ*U for -*-» j^<,, Jennings was tenant in tail, remainder to John Jenningu 

t^tTHtn'% ^^' Jennings, the firft tenant in tail, made a.lcafc to the defendant, 

c"*s8. wiih'cou *^d ^wo others, for their lives, according to the 32. Hen. 8. c.28, 

lateral warranty, with Warranty (^), and died without iffuc : John Jennings in the 

dees not make remainder was his brother and heir, who entered, and let to the 

a difcontinu- plaintiff for years ; upon whom the defendant entered, and ejefl- 

t!!^^v'jr^'a!n cd him. Etji, Wr.— The fole queftion was, Whether this war- 
entry in remain- n %^ %'' -» > • «_ *.. ^^t_ 

der. ranty Inall bar him m the remamdcr to enter or not r for the 

leafe not being a difcontinuance (being warranted by the ftatute), 
Co. Lit. 333. determined by his dying wilthout iflue, and it cannot bind him in 
Vaueb 81. remainder : tor he cannot have the rent referved ; and then the 
%. Co. '34. a! eftate is determined, and the warranty with the eftate, and it Ihall 
Dyer 4R. b. in not bar him in the remainder. — Wherefore it was adjudged for 
^^t' the plaintiff. 

Moor, 8. 3. Com. Dig. 239. 433. 3. Bac Abr. 317. Cowp. 701. Doogl. 570. 573. i.Tenn RCP.73S. 

What rhaU be a NoTE. The leflbr did not warrant it for him and his heirs ; 
Warratity forthc but p^ro redditu fradiHo he warrants it againft him and his heirs : 
^^l^" ' ***^ —And for this caufe alfo it was hejd, that it was a war^^anty forhis 
Cob^Lit. 47.383. hfc, and was determined by his death. 

(a) See 4. Ann. c. i6.'f. ai. 

^''" *• Pigot againfi Gafcgyn and Fyrthee. 

^ '^tlft^L/ r)EBT, as admmiftrator to Antiony LongviU, duranU nu'nore ittati 
22» rtiDl m!^] ^f ^^' Longvile, the executor, upoi) an obligation ; and avers, 

gstau, it muft that fV. LongviU was within the age of twenty-one years. The 
^ aiiedgcd that defendant pleaded an ill bar ; and it was thereupon demurred.— 
the executor is g^f becaufc the Court was refolved. upon conference with divers 
JoA^^'^r^"^^ civilians' openly irf court, that the power of an adminiftrator, Ju- 
5. Co. 29. a. »^«'^ minore atate^ doth ceafe at the executor's age of feventeen 
5. Mo . 395. ^.Vept. 37!^. Brownl.46. C2ro. Jac. 590* Vaugh. 95. Swinb. 25. X. Lid. RfTOU ^67« 
^m/D*sRep. 159. i.S«Us. 42- Prec. Ch. 175. 



Hilary Term, 40. Eiiz. In C B. . ^ 603 

jtart; and that adminiftration committed after that age of the. Pir.oT 
executor, is merely void; and notwithftanding this averment here, c^v^^land 

titecrccutor might be above the age of fevcntecn years, and within f vrVhss^ 
it age of twenty-one years ; it was therefore adjudged, qu^J que- 

Stanley againft Bofwel. Caij j. 

ACTION for thcfc words fpokcn of tlie plaintiff, being an at- Tofay of an at- 
^ tomey : *• Thou art a cozening knave, and getteft thy living tomcy that he 
"by extortion, anddidft cozen one P/f^(?« in a bill of cofts of lol/' ^^)^7J,%*/']^^ 
The defendant pleaded not guilty, and found againft him. After tiwiiwe/"*/ 
Tcrdia it was moved, that an a£lion lay not for thefe words.— 
AndallTHE Court agreed, that for the firft words, ** Thou art; a »-^**"*-A"^- 51* 
"cozening knave," an aftion lies not, for they are too general; and a/swnd. 307. 
nobody knows what is intended by them. And for the words, 
"Thou getteft thy living by extqrtion," no aftion lies ; for fo be 
my do, and be no extortioner : as in the cafe- oi Stanhope^ " ThpM 4* Co. 15. b* 
"grttcft thy living by fwearing and forfwearing, &c." But for 
thdafl words, becauie they touched him in,his profefiion (for to 
niake a &lfe bill is againft his oath}, and is a great falfity, and 
abufe to the Court, they all held the aftion to he maintainable ; 
and gave rule that judgment fhould be entered accordingly, &c. 

Mariot agaifijl Smith. ^^" ♦' 

r JECTIONE FIRM^. Upon a fpecial vcrdia it was found, ^^ » ^^^ ?^*«- 
^ that one L. was feifed of the land, and made thereof a charter |^^^^ * 
of feoffment to the lellbr and his heirs, dated' tlie tenth of September \ n^ Septemitr^ 
and he, by another deed, reciting that L. had made unto him a wheie it was 
charter of feoffment of that land, dated the eleventh of September^ loth S^pttmkir^ 
garc thereby authority to J. to receive livery and feifin tor him, *^^|o makc^or 
ftcitndum formam et ejffe^um charttg pradi^a : J. receives livery [^^g Jvcry /#• 
Qpon the feoffment accordingly. And it was found, that there was cundumfurmam 
not any other warrant of attorney : and, Whether this were a ** tfftaum (bar* 
good feoffment or not ? was the queftion. — Drew moved that it ''^/^^^^ 
was ; for all is certain, viz. the name of the feoffor and feoffee, made upon it, It 
and the certainty of the land, and nothing miftaken but the date ; wiU be void, 
^hich being fufuciently certain before, it is not material, altliough it co. Lit. 51. 
be milbken ; as in 2. Edw. 4. fol. ultimo^ and Dyer^ 376. Cotton^ s Cafe. %. Roll. Abr. 9* 

But all THE Justices refolved to the contrary : for the a.RoU.Rep»i74. 
warrant to receive livery is by the letter of attorney, which ^'J^ak'^^'s 
aathorifes him to receive it fecundum formam charta^ dated the \\ Wood'aCoo! 
e-cvcnth of Septembery whereas there is not any fuch ; and fo ^ij. 
he had not any warrant to receive it ; wherefore tne livery made is t. Salk« 463. 
void : and the date of the deed was the principal note to Know it ; C®''?- ***• 
and if it varies in the date, there is not any fuch deed : and where^ 
a ftatute is pleaded, and mif-recited in the date, as in Plowden^ 84. 
Stratge*! Cajiy there is not any fuch flatute ; and it is not like to 
CtitM^s Cafe ; for there, although the houfe was mif-named, in. 
»hofe tenure, &c. yet it was certain enough before, and pafled by 
4c charter of feoffment; ahd the letter of attorney referred there- 
to. And fo they all held, if the warrant had been to make livery, 
ithad been ill. 

But it was then moved, that in regard that the feoffor himfelf Livery by at- 
^c the livery to the attorney, it fhall be a "good livery as to him, torncy, 
aidioug^ it fliaU not b^ to Uie feoffee, 

Sfa But 



<fe4 Hilary Term, 40. Eliz. In C. B. 

' MAitoT B^^^ Anderson and Walmsley denied it ; for there was not 

SmTth. Py intent to enfeoff the attorney, but the feofFcc.— Wherefore 
it IS utterly void: and it was adjudged for the defendant* 

tisF. 5. Archdeacon againjl Jcnnor. 

. TTHE cafe was, One made a Icafc for years ; the Icflbr covc- 
^ '*' nanted that the leflec (hould have houfc-botc, hay-bote, and 
plow-bote, without conunitting any wafte, upon pain of for- 
C0.Lit.ao4, fciturc of tlie leafc : Whether tliis were a condition? was tl^c 

pop. IX6, n- 

,.Bac.Abr.403. qucftion. 

j^ Wood** Con. Anderson. The covenant is no more than what the law 
PoucL %f 766 appoints, and therefore vain ; and fo all what is fubfequcnt is 
t. Term Rep/ vain. — S^uod Beaumond agreed, 

^**' Walmsley. It is a covenant on the part of the Icflbr j and 

therefore it cannpt be a condition. 



Wliat vords 
Ihall amount 
A covenant. 



Eaflcr 



EafterTerm, ^^ 

40. Eliz. In the Queen's Bench. 
Sir John Popham, Knt. Chief Juftke. 
Sir Francis Gawdy, Knt. •% 

Edward Fenncr, Efq. C JuJItces. 

John Clench, Efq. J 

Sir Edward Coke, Knt. Attorney General. 
Sir Thomas Fleming, Knt. Solicitor General. 

Holland againft four Others. Casb i. 

HOLLAND brought an appeal of murder againft four of Tht af^ikm^ 
Sir George Featynor^s men by original writ. At the day of of an appdiec 
the writ returned, they appeared at the bar, and then he ^l^JJ ?J*' jf ^f 
wodd have <]eciared againft them, being at the bar, as in cuftodia i^y ^fih/i^l 
marefchalK. — But by the rule of the Court he could not ; for the ihii, unW$ a 
appearance of the defendants do not make them in cuftodia mare-- cmmttitur be 
(chaiii^ unlefs there be a record made, quod committttur marefchallo ; «;>*«* ^ *••' 
or that they find bail. Wherefore in regard the plaindtt would **^*^ 
not declare againft them upon the writ, the plaintitt was therefore s'^u^^i^^ ^^** 
demanded, and being called upon the writ, was nonfuited, and ,, Hawk. »3i* 
the defendants difcharged. *" x. Bac. Abr. 

113.118. ft. Ld. Ray.xi9o, 1. Salk. 64, 

Note. \ He would not declare againft them upon tlie writ, be- N. b. a nonfliie 
caufe there was a fault therein, viz. the want of an addition of one after appeara«<jf 
of the ddendants in tbc A/? «»m/ [a) ; and if he had declared, and »** *PP*** ^••*** 
the writ had then aba^ted, it would have been peremptory unto ^TT^l 
him. For Tanfield, for the defendant^ faid, that a noniuit be- ^** 
fore appearance is peremptory (AJ. Vide %%, Edw. 3. fL 7. (*^ Caftila 

22. 4^ p/. 97. - . . "i!^^^ 

I. SM. 31. 11. A(r. 97. Sgm. 190. S, P.O. X4t« 2< Hawk. i8<^ 

The Earl of Worccftcr againft Paddon. c^" *• 

'TRESPASS. • After verdift it was moved in arreft of judgment, P^^tmrtfacUi 
* that the venire facias was made returnable three days after tlie 2J'^*^e"wU 
term, and after a diftringas was awarded, and the jury taken there- ^^^ided, 
upon ; which was ill, becauTe the firft venire facias was ill. — ^^ shower 69. 
Gawdv. If there were no venire facias^ it were holpen by the Cro.jac 441. 
ftatutc of jeofails ; -but an ill venire facias upon the record is not i.Com.Dig.31^ 
holpen. — PoPHAM. The like cafe was of late in this court, and ^•^- ^* 4«^» 
nilcd to be ill. — ^Wherefore, for this caufe, the judgment was ar* 
Tcfted. nde t. ^liz. Dyer, 168. 227. 265. 

Hutchins againft Martin. Casi 3. 

TTPON evidence to a jury, it was moved, where leflee for years Acceptance of • 
^ accepts of a fecond leafo, to begin at Afichaelmas following, ^^^^ ^^^ » • 
Whether it be not an immediate furrc^nd^r of the firft Icafc ?— And ^l^^^ "^ *• 
THE Court held that it was, and that the leflbr might enier in ^t^, <ii. 
the interim and take the profits. — And Coke, Attorney Gtmrali Poft. S74,* 
bid, tha it was lately fo aajudged in the common pleas« i.Roli.Ab.496« 

5. Co. 11.^. 
I>)rer,93* 3. Le60.244* 3. Bac. Abr. 459.46). t.Burr. S98, 4. Burr. iito. t. Term ilc{>^^, 

Sf3 CbUa'f 



^06 Eafter Term, 40. Eliz. In B. R* 

CA.t4. Child's Cafe, 

indiament /^HlLD wasindiftcd upon the ftatutc of 5.(^6. EJw.6, c. 4. for 
qutfted for un- v^ ftTikiiig in a church-yard. — George Croke took exceptions 
cmainty of the ^^j-eto, becaufe it was apuJ generaUmfeffitmtm fads tent, afud Bland- 
Anic, 101.137./^''^* and it'' is not faid In comitatu tradiffo. And although the 
Pofl/677. 7j8. county was in the margin, and fo fey intendment it might refer 
75«» thereto; yet, becaufe indiftments (hall not be taken by intcnd- 

Cro.jic.96.176. nient, he was for this caufe difchargcd. 11. Hen. 7, fl. lo. 
%, Keb. 302, 3. Peer. Will. 439. s. Hawk. 361. 

^^" 5' Darrel agahji Middleton. 

An e}«Qinait u t JECTIONE FIRM^ of a leafe made the twentieth ofJuguJl, 
SS^Ww ^^y^ Afichaelmas then laft paft, ante datum hujus indintura, and 

from Mich^Z ^^. "^i^^^r fliews the indenture nor the date thereof. After rerdift 
masy mntt daimm *is matter was alledgfcd in arrcft of judgment, that there did not 
indtntura. any Certainty appear by the declaration when the leafc ihould com- 
f. Vent. 137. J^encc ; for there is not any date of the indenture exprcflcd. 
cnxjac. 646. Wherefore, &c. — The Court held it to be well enough: for 
H«iey» 63. when he declares of a leafe made of the twentieth of AuguR^ for 
Run. tjea.95. twenty years, from Michaelmas then laftpafl, if he had ftayed there, 

wp. 717.725. j^ jjjyj ^^ clearly good ; then the addition, ante datum indentura^ 
Ihall be void, and the b^inning of the leafe appears cerUiA 
enough. Wherefore it was adjudged for the plaintiff! 

Casi 6. Collins againfi Harding, 

EaftirTtrm^ 39. Elivc. Roll ^^^. 

^ general re- ' TAEBT upon a Icafe for years. And declares. That one Per- 

^(b'w "^ ^^ ^^^^^ ^^^^^^ '" ^^^ ^^ ^^^ ^^^^' *^ ^^^ freehold, 

indSnTto are- *^ ^^^^ copyhold land, and having the lord's licence to make a 
vcrfion, and not l^afe of the copyhold land by indenture, let the two acres by in- 
doe at the time denture to J. S, for 21 years, rendering 20s. rent ; and afterwards, 
the reieafe was in Mai^^ 32. Eliz. granted the rcverfion of the freehold land to Ac 
Poi^6i». plaintiff m fee, to whom the leffee attorned ; and upon the fame 
day furrendered the rcverfion of the copyhold land into the hands 
■•^•- 3*' 57- of two of the tenants of the manor, to the ufc of the plaintiff in 
Hob. w."*^*' fee; and at the next court this furrender was prefentcd, and the 
Moor, 544. plaintiff admitted accordingly- Afterward, the i.Auguft^ 3S'Eliz, 
Ydv. 213. , Jo. St. the Icflce granted all his eftate to thfc defendant ; and for 
1. Sid. HI. the rent of three years arrear at Michaelmas^ 37. Lliz. the plaintiff 
Cro. jac. 4«7. brought this aaion. The defendant pleads a reieafe from the 
. hmXtl^^* plainti'ff made to J. S. the firft leflce upon the 14. Nov. 32. Eliz- 
ilkin. 305. (which was after the aflignment) of all a&ions and demands until 
SaUc 1S5. the datrof the deed ; of which J. S. (as tlie defendant allcdgcthj died 
5. Com. Dig. poilefled, and made him his executor ; intending thereby that by 
JJ,^ this reieafe made to J. S. being the principal party, the aftion of 

debt was gone for ever. And it was thereupon demurred.— It 
was agreed by all the Court, that the bar was ill, and that there 
was no caufe to bar this a&ion, the reieafe being of all demands 
' until the date of the deed ; and this rent was not arrear till after- 

wards. 

^*/«J[Jw* It was then moved, that the declaration \vas not fuflScient to 

' •ffiMtt! of^rt •"^^^"**^" *^* aaion ; for when he divided his rcverfion (viz. by 

verflon of ia.^i granting the rcverfion of the freehold,, which tlien inmicdiatdy 

>art freehold and part copyhold { for the furrender of the one ihajl relate to Utf aUonuMnC of Uic other.— 
Moor, 354. Co. Lit- 148. a. 1, Roll. Ab. 416, Cab.Tcft^a^j. 

pailed 



Ea{Ver Term, 40. Eliz. In B. R. 607 

piled by the attornment, whereas the copyhold paflcd not until ^^\^-l^^* 
thcfurrendcr prcfented, and the admittance in court), the rent jJaIpiko. 
was thereby utterly extinft ; or, at Icaftwife, the plaintiff ougnt to 
have had fcveral actions, bccaufe he now hath the reverfion bv fe- 
Ycral conveyances.— And of that opinion was G aWd y. — And Pop- 
ham laid, tliat he was of the fame opinion, if this rent (hould he faid 
to be ifluing out of both acres. But he held, that this rent fhall be 
iffuing only out of the free land ; bccaufe that is thcmoft worthy, 
and whereof the common law takes conufance : as if rent be 
granted out of land guildable, and out of land in ancient demcfne, 
the ad}on ftiall be brought for it at; tlic common law. And if a ^'^ *5*- ^' 
Icafe be made of land and goods, rendering rent, it is ifluing only 
out of the land. But we will well advife thereof — And the other 
Juftices fpake not thereto. Sed adjournatur {a). 

(d) This cafe was moved again in Mich, Term, tmd adjudged for the plaintijflr* 
Poll. 612,623. 

Wade againft Buffard. ^'^^ 7- 

A CTION on thd cafe for thefe words : «« Thou haft forged an Words aaion- 
•"• «* obligation, and I will prove it." The defendant juftifies, **'^*^v 
becaufe he had forged fuch an obligation in the name of fVendy. i.RolL Ab. 65. 
The ilibe, defon tort demefne^ {^r. and found for the plaintiff. It 
was now moved, that an a£tion lay not for thefe words ; for he 
doth not fhewthat this obligation was fealed and delivered. — The 
Court held it to be well enough, for it cannot be otherWife in-> 
tended ; for without thofe circumftances it is not an obligation, 
but a writing only. But they held that for faying, '* Thou haft 
•* made a falfe bond," an aftion lieth not ; for that may be upon 
falfe inftruftions. 

Secondly, It was alledged that this iffue was not good ; for there Pleading, 
being a Ipecial forgery alledged, it ought to be fpecially traverfed. g^ ^^ . ^ 
*-The Court held the iflue to be well enougn ; and if it were ,| com. big. 
not good, it is aided by the 32. Hen. 8. c. 30. {a) Wherefore it 331. 
was aidj udged for the plaintiff; 

(a) See alfo 4. it 5. Anm c« i6« 

Leigh agau\ft Wood. Ca«8, 

Michaelmas Term, 39. fcT 40. £//«. ttoll 374. 
PROHIBITION to ftay a fuit for tithes. Wherein he fur- Tithes after fc 
* mifeth, that he fet forth his tithes ; and afterwards, for fome verance arc Uy- 
reafonablc caufes (not ftie wing what in certain) he had detained ?^^*j^ ^^^*^^ 
part of them ; and that the parfon had fued him for them in court indif thlp^^ty 
chriftian: and it was thereupon demurred. — Fenner and Clench detain them, 
held it to be good caufe for a prohibition ; for by fetting out of he may fue ei- 
thc tithes, they are become lay-chattels ; for which he may have ^hcrbythcoom- 
his remedy at the common law by trcfpafs or detinue, and there- ^jcaT uw!*^ ' 
fore there is not any caufe of fuit in the court chriftian,— Gawd Y Port. S44. 
and PoPHAM i contra. For againft the party himfelf, who fet i^RoU.Ab.iSe. 
forth his tithes, a fuit is well maintainable in the fpiritual court, i'.inft6i3. 
if he detains them, although the parfon (if he wouW) might have Moor, 91a 



12. 



hit remedy at the common law ; but if a ftranger takes them after ^^^^ *34. 
they be fet forth, his remedy is only at the common law : and the ^atch. 115, 
32.Hi?«. 8. c. 7. f. a. proves it ; for the words thereof are, " If any 3. Buift, s4i, 
" do not fet out, or do deuin, or with-hold hU tithes," (which is Palmer, 380. 
to be inteiWed after they be fet out), ''he (hall be fuid in the court 5- Bac Abr.9,. 

Comy. Rep.xa* 
Id. Kajrm. 1^8. Stra. 246. ^ Burr. x8;3. 1891. 4. Burr. 2095. 

S f 4 chriftian, 



*oa Eaftcr Term, 40. Ellz. In Bl R. 

LticH « chrfftian, &c." For othcrwifc mifchief wouW chfue to thf 
^atnf$ parfon; in that he would fccretly fet his titlies forth, fo as the par- 
°*''*' fon Ihould not know thereof, and would afterwards carry them 
away. Et adjournatur, 
Ca«i 9« Beadle agaitijl Sherman. 

Eajier Term» 39. FMz. Roll 699. or Hilary Term^ 40. E^x. RoJ/ 699. 
t)2bt f9r tiic TNEBT upon the 2. Edw, 6. c. 13. for not fetting forth of titlies. 
Iii!h«^no!^^^^^^^ Wherein he declares, that he was parfon oilytUngton, ip the 

pmfuant to county of Cambridge ; and that the defendant, being a parlfhioncr 
»,£:rfw.6.c. 13. there, and having corn tliere growing, &c. the tithes whereof 
lies in the tcm- amounting to the value of 50L he had not fet them forth : where- 
p*ft*6°"^** fore he demanded the treble value, vi%. 150I. {a). After verdift 
s^c' c*''e ^^^ ^^^ plaintiff, upon a nihil debet pleaded, it was moved in arreft 
1*6 1 * *** ' ^^ judgment, that the fuit for this treble value ought not to be 
Moor, 912. brought in the common law, but in the fpiritual court, as it ought 
13. Co. 47. . to be for the tithes .before they be fet fortli.— But T ANFiELD,/er 
^T'ft 6^ '^* ^^^ P^'^'^iff^ moved, tliat it might be well brought at the common 

1. Toncs'ti^r* ^^^ • ^'^^ ^°^^ ^^ rakd in, the exchequer, uplon great advice, in 
Moor, 91a. ^* tlie time of Man woo j>, Chief Barony betwixt one fVovd and Halton ; 

* Cro. Car.419, for there the- information was brougl^t by the queen only updn 

2, Wilc 413. this ftatute, and the treble value was demanded, and adjudged that 

it lay not ; for the ftatute gives it to the party grieved, and not to 
the queen ; and then it was brought by froc^f being the party 
grieved, and he had judgment to recover : and a precedent in this 
court, Hilajy Term^ 34. Eliz, Roll. 682. fVentworth v. Crijp^ was 
cited, where fuch an a£lion was brought, and the plaintiff had 
judgment to recover. And all the Justices were of the fame 
opinion in this cafe : but becaufe it was a new cafe, they would 
advife until next term. — Another exception was taken; be- 
caufe it appears that the plaintiff had this parfonage in right of his 
wife for years, and fo ought to have joined his wife with him in 
this aft ion. Sednon allocatur (b). 

(a) Vide 8. & ^ Will. 3. c. 11. f. 3. 
(h) In Trinity Term judgment was given it the plaintiff} and, on a writ of error, 
afiirnied. Poll. 6x3. 

Case xo. * Cowpcr a^dinft Langworth, 

Hilary ferm, 40. Eliz. Roll 479, 
An adion^of "TjE^T upon a recognifance acknowledged in chancery. Tie 
debi lies upofi a -■-^ defendant pleaded, that the plaintiff had intA z fcire facias 
actorowi^^L Upon it in chancery, and had judgment there, and Had fued an 
In chanccryl ^u^^^P^f ^^^ demanded judgment, fi, &r. and it was thereupon dc- 
thoughjudg- murred. The queftion was. Whether after this execution award- 
ment has betn ed by the elegit^ the plaintiff might waive it, and have a new aAion 
^/^?!^i« * ^^^^^^ ?— And all the Justices held that he might ; and that 
which ^'ftiji in ^® judgment in the fcire facias upon the reconufance being in 
force. force, yet he»might have a new aftion of debt : fo if one recovers 

Port. 817.' in debt upon an obligation, yet, that remaining in force, he may 
i.RoH.Ab.601, have a new aftion.— For Popham faid, the difference is, where 
6. Co. 45.' one recovers in trefpafs or other adion, wherein he recovers no- 
Dyer, 306. 369. thing certain but damages only ; if he hath judgment in fuch an 
[.Com^Dlz!^^^^^^*^^^^^* when that judgment is in force, he cannot iiave a 
2*59. ^ ' new aftion ; but where the thing which is demanded is certain, 
D*uji, 5. • -as debt, '&c it is Qtherwife,— Wherefore ^it was adjudged for the 
plaintiff. 

Gcoigc 



k. 



Eafter Term, 40, EUz In B, R^ 6of 

George Skarning againft Ellas ShartwelL Casi i i. 

DEBT. The judgment was, •• quid prspdi^us Georglus capiatur ;*' Judgracnt^beiin 
whereas it mould have been ** pngdiflus, Elias. * This was the aa of tht 
affigncd for error : and it was prayed, that it might be amended ; Cowtjai not 
for it is. but the default of the clerk.— Fenner and Clench ^^^* 
[ctttril Juftitlarih abfentibus) held, that it was not amendable ; » '« ^I'. 
bcaufe it is part of the judgment and the aft of the Court (a). j^,/ 

(«)Scd vide Ray. ^9« 4. Mod. 371. 1. SI(?. 70. 3. Mod.iiz. Canh. 167. t. Saund. 289. Strange^ 
31^ 7S6. Cowp. 844. 

[h] Ii is now amendable by 16. ic i-j. Car. a. c. S. and 4. & 5. Ann. c, x6, 

Shaw againft Tompfon. Cxft ft« 

A CTION upon the cafe for thefc words : «* Thou art a for- WordaaaiMi. 

** fworn knave, and I will prove thee to be forfworn in the ^^ 
*^ fptrltual cMrt." After vcrdift for the plaintiff it was moved, -^"«>'35««5- 
that an aftion lay not for thefe words, no more than for faying, »• R®. Ab. 4^^ 
'* Thou wert forfworn in Whitechurch-court ;" which words have ^J^* ^^ 
i>ecn here refolved not to be adionable. — THE.CoaRT held, that * 
the adion well lay ; for the ccclefiaftical court is a judicial court, 
ind well known. Wherefore it was adjudged for the plaintiflF. 

Corbet againft Hill. -GAti ij- 

A CTION for thefe words: " The plaintiff was perjured in his Woi^aaion* 
** " anfwer in the ftar-chamber," innuendo ^ 2.h\\\ there exhibit- a«»le- 
«d by the plaintiff againft the defendant. After verdift it was x. Ro. Ab. 40. 
moved, that an aftion lay not ; for it is well known, that a plaintiff 83. 
cannot be perjured in his bill exhibited; for he is never fworn 4- ^**^* -^^^ 
thereto. — The Court held, that the aftion was maintainable for ^ 
the firft words, and they arc fufficient witliout the innuendo ; 
which, being repugnant, is void, and not to be regarded. Where- 
fore it was adjudged for the plaintiff. 

Anonymous, - - CASB14. 

A CTION for thefe words : " The plaintiff hath forfworn Words-ctanoc 
^^ himfelf," innuendo^ before the Juftices of the affife of, &c.— be rendered 
The whole Court held, tliat the words were not aftionable ; aftionabicby 
for the precedent words are not fufficient of therafelves ; and the X^te 
innuendo Ihall never help them. Wherefore it was adjudged for t^c " ' *^^* 
defendant. ' • ^*^ *^ 

Auftyn againft Lucas. CAtii5, 

TT was held by all the Justices, that for, broom, fiirze, or any Tithes. 
\ other fuel expended in a parilhioner's houfe, there are not at^y Ante, 363. 
tithes due or payable. — A prefcription alfo to pay the tenth chcele i.RoH. Abr« 
nude from Maj-day until the firft of AugMji^ in recompence of sdl M- ^l<- 
tithe-milk for the whole year, is good ; for that comes of labour, ** '°^' *5»* 
and is not due of itfelf ; and therefore is a eood difcharge.j but to .I. *^* "?* 
pay the tenth quart of milk, is not good ; for that is but for what Moor, 909. 
1$ due.— But PoPHAM faid, to pay the tenth quart of milk at the »• Brownl. jx. 

patfonage-boule, or at any other place, is good enough. Raym. 278. 

** • Carth.461. 

Bwb. io. 73. Salk. 65c. !• Ld. Raym. ijo. 137. 35^, |, Bac. Abr, 83. Wood's Inft. 
!«•, ».Ld. Raym. ii/r. 

Hunt 



6io EaftcrTerm,4o. Eiiz. InB^R* ^ 

Cm t6. Hunt againft King. 

£^^ Tirmj 39. £i!f». ^^i/ 361. 

If tenanoin taU c RROR of a judgment informedon in the common pleas* Tlit 
nuke a feoff- 11 ^(^ ^jjg^ 'pj^j^^ William King, the grandfether, tenant in tail, in- 
Sarciife *«!ht f^?ff^d Xicharil King, the father, in fee ; and afterwards fVilliam 
ftoffee, and le- ■A'/ff^difleifed him, and levied a fine, with proclamations, to Hitch- 
vy a fine with fori. Before tlie proclamations pafled, ^iVAarrf ^iif entered ; and 
proelamations, after tliat thc proclamations paflcd, Hitchcock the connfee enters. 
Jffue In ^l '5 ^^^'^ ^«^ and Richard King died. 7^>&« -«?«?. thc fon of Richard 
force 3a. H€». ^^'gf brought the /ormtdon, where this fine with a que ejlate was 
s. c. 36. though pleaded in bar, &c. The demandant thereupon pleaded this entry by 
the diflcifcc re- his father, which was travcrfed, and found for the demandant ; and 
STT *h[m**'* judgment given for him : and thereupon error was brought. — ^Tbc 
lion^'^paft™*' error was affigned in the matter in law, that this fine fliould bar the 
Ante, 589*. intail ; for aldxough it was a finfc levied by him who was tenant in 
tail, and had the right of the intail in him at thc time of thc 
lop^'gt* ^°' ^^ levied ; and although thc fine, as to the pofleflion, was 
Plowd. 4*30. defeated by the entry of the father who was diffcifed, yet, when thc 
a. And. 177, proclamations run out, and are not flopped or avoided, this fine is a 
*c°^* tr^* 2^^ ^^^ within thc 32. Hen. 8. c. 36. to bind thc right of the in- 
I'.BaclAbr *ii! ^^'» which was in him who levied the fine. And this is not to be 
Cruife on Fines', Compared to fiucs at the common law, nor to other fines of other 
i6a. perfons ; for it fufiiceth here that the fine was levied by one' who 

Cowp. 702. had thc right of the intail, or that he was one to whom the land 
1. Term Rep. ^^ intailcd, although none of the parties hath the intercfl in thc 
^^ * freehold, or in the rcverfion, or remainder of tlie land ; as it was 

W l«Co*88. adjudged in Zoucb v. Banfield {a), that a fine levied by tenant in 
tail who is diflcifed, to a flranger who had nothing in the land, 
was good to bar the intail. And it is not any plea for thc iflTuc in 
tail, •* quod partes adfinem nihil habuerunt^ £^f.— PoPHAM alfo cited 
l^dSturtofis Cafe to be adjudged in 16. Eliz. where Sturton being 
tenant for life, remainder in tail to Lord Sturton^ remainder in fee to 
a ftranger. Lord Sturton diffcifed the tenant for life, and levies a 
fine : |he tenant for life enters before the proclamations pafied ; fo 
as he defeated the fine ; and after the proclamations were paffcd, 
although neither the freehold or inheritaiKc in fee were bound by 
this fine, yet it was adjudged that the intail was bound by it: fo 
it fhall be in all cafes, where the fine is levied by one to whom thc 
land is intailcd, or who may claim as heir in tail ; and therefore he 
is to be barred, as heir in tail, to have ^formedon ; although it ap- 
pears, that he had right to have the land, as heir of the fee, aivi 
might well enter ; and although the tenant might well have de- 
murred upon this entry pleaded, and had not done it, but had taken 
iffuc upon it, and it v. as found againfl him; yet in regard it appears 
that the demandant had no right to this land by this nature of 
ic. Co. 50. a« aftion, and tliis appearing to the Court, they (hall adjudge 
Ante, 111. againft him. — Wherefore they revcrfed the judgment. 
-f.dcvifetbttd NoTE;' Warberton, ferjcant^ cited one Grant^s Cafe to 
Jf^^*?**^]^j^j^ be \ttt\f adjudged in die common pleas, where one devifcd 

to hit fon in taij, wkenh Jhould attain i^ytarii a fine levied by the fon htjort tbt rmaiiider vcfih 
will bar his ifluc,— Cro. Car. ^35. 

land 



r 



EafterTerm, 4oEliz. InC. B. 6u 

bnd to his feme for life, remainder to bis fon in tail, when ^^^ 
he (houUi have attained to the age of twenty-fire vears. Hc^ -^^^ 
before his age of twenty ^five years, levies a fine (when he had 
nothing in the remainder, as it was agreed that he had not; 
for the remainder did not veft in him until that age), and after- 
wards died at hts age of twenty-five years. The feme afterwards 
died. It was adjudged, that this fine (hould bar his iiTue, although 
at the time of the fine he was not tenant in tail, but was a perfon 
to whom the land was intailed : and therefore the fine was a bar 
to his ilTues. 

Wade and his Wife againfi Smith. ^^** '7- 

"PRROR to reverfc a judgment, and outlawry againft them in Error to revciie 
^ debt. — And b^caufe it was to reverfc an outlawry, it was held, '"' TJ'^'^'^L^ 
that they could not aflign error, but in perfon: and bccaufe the w!^pi^^^^^'^^ 
baron could not bring in his feme, it was held, that he could not Ante, 370. 
aflign error ; for he cannot aflign it without his feme. And fo it 
was ruled by the Court. And the courfe of the Court is, that ci^?^*** 
it cannot be otherwife afligned {a). • * 

(a) Scd vide 4. & 5- Will & Mary, c. iS. f. 3. 

Eafter lerm,^ 

40. Eliz. In the Common Pleas* 
Sir Edmund Anderfon, Knt. Chief Jujiice. 
Thomas Walmfley, Efq. 1 

Francis BeaUmond, Efq. \ Jujiices. 

Thomas Owen, Efq. J 

Sir Edward Coke, Knt. Attorney General. 
5/r Thomas Fleming, Knt. Solicitor General. 

Davies' Cafe. €*« f. 

TROVER of goods. The defendant 'juftifies, as fervant to Tajuiiifythe 
ihtiYitnSoiMddUfex, bccaufe the plaintiff had ftolen ^'''"« ^ **• 

^^jj, r*""^^ S""?^'/ ^^]^ ""^'J'^^ ^^"^ ^°-^- ^'^•^'^ *« county of gr^u^'J'^^ 
MlddUftx ; at which phce the defendant feized tliem ut bom wai^ Tf^y wa, 
r/fl/tf.— And, without argument, it was adjudged for the plaintiff: committed, and 
for he ought to alledgc a felony committed ; and that the goods «*»**«*«?&*«» 
were waived by the felon; but it is not alledged that the felon p^'''/ '**"•• 
waived them. Wherefore it was adjudged utfupra. . 5^^* ^^ 

* 5* ^ »09, ». Hawk. 640. 

Anonymous. cxt. »/ 

A WRIT of warrantia charts yfsis brought of two mcffuages, Variance b^. 
and twenty; acres of land ; wherein he counts, tliat t^e dcfcn- '^««» ^^ v^rnt 
dant mfeoffed him of tlie faid mefTuagcs and twenty acres per no- *"^ ^* ^"^* 
men unius tofti, et 2 virgat. terra. Exception was takeii hereto • 
becaufe that which comps under the name of per nomen doth not 
warrant the count; for the two ipefluages caimot pafs by any 
word contained.under the per nomen.— Sed non allocatur : for it mav 
be there was only toft there at the time of the purchafe of tlie two ^^^ *34. 
^uages^ and they might fince that time have been bailded 
WberetQre u was adjudged for the plaimiC 

Stratfield 



fiia Eafter Term, 40. Eliz. In C. B. 

CAf 1 1* Stratfield ^mn/l Dover. 

Pleadiflg, 'T^HE cafe was now moved again by Williams, that the plead- 
-^ ing was ill ; for the defendant made conufance, as bayliff of 
Edward Fimey^ for that king £^w4r^ the fourth gave the land 
to theanceftors of Edward Vermy in tail, and conveyed it by de- 
fcent to Edward V^jmey. The plaintiff faith, that Francis Howfi^ 
before the taking, was feifed in fee ; and in 25. £//z. levied a nne 
with proclamation, and five years pailed ; and that this fine- was 
to the ufe of Francis Hmwje^ himfelf, aitd his heirs, who let to the 
plaintifFfor years, &c.-*And for this ca\)fe it was infufficient : for 
he never traverfeth the gift in tall> nor the feifin in tail, in Ed^ 
ward Vernej^ nor in his anceftors, nor confefs, nor avoid i^- 
Wherefore, without regard \o the matter in law, it was adjudged 
for the defendant. 



595- 



Trinity 



Trinity Term, . *'^ 

40t Eliz. In the Queen's Bench. 

Sir John Popham, Knt. Chief Jujiice. - 
Sir Francis (jawdyi Knt. -y 

Edward Fenner, Efq. > Jujiices. 

John Clench, Efq. ^ . 

Sir Edward Coke, Knt. Attorn^ General. 
Sir Thomas Fleming, Knt. Solicitor General. 

Beadles againft Sherman. Cais u 

Jnie^ Bafter Term, 40. Eliz, Plac, 9. 

THE cafe was now moved again, to have the rcfolution of Huibandtnd 
the Court. — And they all refolved, that the a&ion well lay wife may joia 
upon the ftatute. indi^itfortlie 

It was then moved, that thofe tithes were perfonal chattels, v^/»°^l!^. 
which appertained to the baron only, and he hath joined his feme 5^. ijtVor 
with him in this adion; and therefore it was ill. tithes which tht 

Sed Hon allocatur : for the feme, being termor, the baron is pof- hufl>and has in 
fefled of them in her right, and the aft ion is given to the propric- ^^ "8^* 
tor or farmor^ &c. wherefore the aftion is well brought in both pq^*^2u 
their names. And it was adjudged for the plaintiff. ^ ^^ *g 

Note. A writ of error was brought upon this judgment. i!*Mod. 176. 
The error was affigned in the point of l^w. And the judgment Jcnk. Rcp.a73, 
was affirmed. • i«'Bac, Ab. 3 04. 

». WUf, 4*3. 

, Fox againft Wright. ca..*. 

T^EBT upon a bill cnfcaled of 200I. which was in tliis manner : « i bind myfctf 
'^ That the defendant, in confideration of a bill of 50I. wherein " to fave ^. 
the plaintiff was bound to fVtlUam Flud for the payment of 42I. *|barmlcft, 
for the defendant, obligavtt fe in 200I. ad indempnem confervandum J* r^^ jjjj^*^' 
the plaintiff from all aftions by rcafon thereof^ folvendum to the uif^ji^/*'"^' 
plaintiff cum requifitus ejpt; ana alledgeth in fail, that he had not written i^ ^ 
faved him harmlefs, fro eo quod that tlie faid PFilliam Flud had book, 9^4 there, 
fued him upon that bill, and recovered 90I. damages, and had ^|^»"*8<»4 
taken him in execution thereupon, unde aflio accrevit^ t^c. 

The defendant pleaded, non ejlfaaum. And upon the evidence *'^°^^coi* 
it appeared, that tliis obligation was written in a book, and in the Ji$, 
fame leaf the defendant put his hand and feal thereto. 

And at the niji prius in London^ before Popham, it was moved. 
Whether it were a good deed, or not ? And he held, that it was ; 
but willed the jury to find it fpecially. But they generally found 
it to be faeiumfuum ; for tliey faid it was an^ ufual courfc in 
London, 

Being afterwards moved in couit, Clekch and Popham 
agreed, that it was a good deed ; but Fenner doubted. Yet now 
by the verdift of the jury it is put out ofqueftion. 

Secondly, it was moved, that the plaintiff could not have advan- ^ • •• 
lage of this bond ; becaufe it is not alledgtfd, that he gave notice '°* •'*^* * 
ot this fuit to the defendant — Sed non allocatur. But it was ad- 
judged for the plaintiff, although not any rcafon given thereof. 

• Hewer 



6i4 Trinity Termr, 40^ Eliz; In B. R. 

caȣ 3, Hewer againfi Bartholomew. 

Trinity Term, 39. £Iiz. Roil 83 ©• 

What payment A CCOMPT, fuppofing that he received lool. by the hands of 
AaHbcconftru- ^^ fobn Coventry. The defendant pleaded m unquesfon receiver hy 
cda difchargc of ^j^c hands of John Co-ventry to render accompt, &c. ; and thereupon 

which'it was ^^^y ^^^^ *^ *^"^* ^y^ J^.^'y ^^^"^» .^hat Bartholomew paid that 
paid ; aod under J^ool. to Hewer the plaintiff in redemption of a mortgage ; tnd he 
what drcum- Commanded his fervant to put it in his clofet ; who did fo. After- 
ftanccs an aaion wards Bartholomew demanded of the plaintiff certain evidences, and 
of account is bonds ; whicli he refufcd to deliver. The defendant then requir- 
"***"*"* ed, that he might have his tnoney again, which he then had paid. 
The plaintiff thereupon commanded his fervant ^cAw Coventry^ that 
he fhould fetch back the faid lOol. ad redeliberandum to the fore- 
faid J. Bartholomew die faid icx)I. by him paid ; and that the faid 
John Coventry did fetch again the fame money, and poured it forth 
xipon the table eidem J. Bartholomew ea intentione^' ut idem 7- Bar^ 
tholomew fuas centum llbras pradi^l, quas idem J. Bartholomew to 
the faid plaintiff had paid, reciperet in /r^w/ifl of the plaintiff: 
and the plaintiff then and there did will the defendant qd recipi- 
endum the forefaid lOOl. per ipfum defendentem prafato querents^ ut 
frafertur^ folut, anas lOOl. idem defendens adtunc et ibidem recepit^ et 
' afportavit. Etjifuper tota matfria, i^c. 

And all the Court rcf^lved, tliat this payment was a good dif- 
charge of the mortgage ; and although he afterwards req^uired it 
again, as his own money, yet it Ihall not avoid that which was 
abfolutely paid ; but the mortgage remains abfolutely difch^ged ; 
and the monies were the plaintiff's own monies. And although 
he delivered them to the defendant as his own, not knowing the 
law thereiji, fuppofing it to be no payment ; yet in regard he did 
not give it otherwife, nor upon other confideration, the defendant 
received them as the plaintiff's money, and is accountablefor them. 

Secondly, Popham and Gawdy held, that this was not any 
' receipt by the hands of J. Coventry^ but by the hands of the plain- 
tiff himlclf: for when he willed the defendant to receive it, it was 
his own delivery ; and when he commanded his fervant to fetch 
it ad deliberandum to the dtfcndzntj znd he brought it down and 
poured it forth ed intentione, that the defendant fhould receive it, 
that is not an)r authori^ to the fervant to deliver it ; nor did he 
by that aft deliver it.' ^ut Popham faid, if he had commanded 
his fervant to bring the faid money, and deliver it to the defendant, 
and he had done it in the prefence of his mailer, and the mafter 
had req vir^d the other to receive it, that pcradventurc might havt 
been a receipt by the hands of the fervant. 

Fenner held the contrary in this point : for he conceived it to 
be a delivery by the fervant ; becaufe he fetched it down, and 
poured it forth to the other to receive it. And Clench doubted. 
Ut adjournatur. 

But afterwards the plaintiff difcontinued his fuit, and brought 
^liicw aftion, fuppofing the receipt by his own handsu 

Gcn:y 



Trinity "Term, 40. Elizsi In B. R. 615 

Gerry againft Holford. Caib4, 

rjECTIONE FIRM^. A fpecial vcrdia found, ttiat there if one of tw* 
^ were two CO -partners of an houfc: the one entered generally, coparceners of 
and made a Icafc tor life, by th^ name of *• all that his houfc, &c.'' ahoufe makea 
The aucftion was, Whether all or the moiety only of the houfc T%^^^^^ 

PoPHAM and Fenner held, that the entire houfe palled : for the entire YumA 
when he faith, " all that my houfc, &c." that intended the whole pa^"* 
houfc J and, by his livery made, he gained the entire, and gave the ^^^ "*• 
entire; although, by his general entry, it is not intended that he ^^- »i9« 
entered into more than to what he had right. *• '^^ ^* . 

Gawdy i contra. For as his entry ^nWyi«V doth not gain 759* ««"»««'• 
more than he had right to demand, no more Ihall this leafc* 

Foster, at the bar, cited, that it was adjudged in this court, in 
^puliFs Ca/ef according to the opinion of Popham. 

Gcrvis againft Tc2idc. ^^'*^- 

TENANT for life made a leafc for twenty-one years by indcn- ^nach ci 
turc ; and covenanted tliat he had not cone any aft to prcju- covenant, 
dice the faid leafe ; but that he fhould enjoy it againft all perfons. ^^* ^ ^^ 
The tenant for life dies, and the leflbr enters : the leflce brings x.&Sn?L*r 
covenant againft the executor,—- And it was adjudged, that it lay i! Wood'k Qm. 
not; for the laft words, ** but that he (hall enjoy it againft all 413- 
" perfons,*' refer to the firft words, viz. " for any aft done by Do»g'-43* 
♦* Urn, tf f/' and fo the covenant is not broken. Ijl^^ ** 



Michaclmai 



^** Michaelmas Term, 

40. &41. Eliz. In the Queen's Bench. 

Sir John Popham^ Knt. Chief Jujiice. 
Sir Francis Gawdy, Knt. -j 

Edward Fenner, Efq. > JuJIices^ 

John Clench, Efq. J 

Sir Edward Coke, Knt. Attorney General. 
5/V Thomas Fleming, Knt. Solicitor General. 

Graves againfi Short. 

^^." ' ' Hilary Term, 40. Eli%. Roll 847. 

ERROR of a judgment in the common picas in z formrJin. 
The errors affigned were, Firft, in fait. That the panics 
brethtm, after . bciiig atiflue, whether a feoffment were made, &c. and the 

departure from jurors at tlie mji trlus being gone together to confer, &c. FfVham 
the bar, any Malevorjy one ot the jnrers, (hewed to tlie rcfidue of the jurors an 
H'Sr^r***^** efcrow in writing pro pctentibus quodMnfuit dat, in evidence per 
M • '^daltho' f^J^^ fr^^i^l^^y P^ V'^d thcy found the vcrdift for the demandant. 
he received it Upon this crror affigned it was demurred in law.— And, after argu- 
not through the ment at the bar, the Court refolved» that it was not any error, 
rcguUr channel nor could be allcdgcd for error ; for it doth not appear* tliat it was 
cannoTbcaffi '- ^^^^^"^^ giveu to the juror by any of the parties, or by any other 
3"fo?error}^' in behalf of the plaintiff ; but it Ihall be intended, that he'fhewcd 
for it ii not it of himfelf ; and that it was a piece of evidence which he had 
returned upon about him before, and fhewed it to inform himfelf and his fellows. 
tht fo/tta J and ^j^j as he might declare it as a witnefs, that he knew it to be true, 
?urmifcd. ^^ ^^ miglit (hew any thing which he knew : and therefore it is 

Ante, 4x1. tiot like to 11. Hrn, 4. pi. 33. and 35. Hen, 6. title *^*' Examination.'^ 
i.Ro. Ab.7S?. '^^^y ^Ifo held, that if this were caufe to avoid a verdift, if it had 
a!Ro.'Ab.'7i5! been fo found by examination, as thcy conceive it was not; yet in 
Co. Lit. 227. b. regard it was not examined, nor made parcel of the record, it can- 
pro. Jac. 21. not be affigned for error. For Popn am faid, the trial hereof refls 
J'y"jj*'^°^^g only in the examination, and it (hall not ht per pais \ as non-age 
i. T. Rep. n. ^^*^1^ he by infpedion to avoid a iine.(tf), fo this matter (hould to 
i.T.Kcp. 281. avoid the verdift. For if fo, then every verdift upon fuch a 
furmifc, might be drawn in queftion ; and peradvcnture, after the 
patties be dead, and all the jurors be dead, fo as they cannot be 
examined ; which would be a great inconvenience. And there- 
fore thcy held, thatfuch a canfe of flaying the judgment ought to 
be always, if it be upon verdift at the //i/T^r/Kj, upon the/9/?ffl 
returned : and if it be upon verdift in hanco^ it ought to be made 
parcel of the record : otherwife the party (hall not take advantage 
of flaying the judgment, or of afligning it for error [b). 

(tf) 2. Kcll. Abr. 572, o, Rrp, 30. 

[b) I. Ficcm. 70. 2. Jones, 83. 3, Leon. 267. P>«lm. 325. 1. Roll. Abr. 262. 

" VrW^m'pra'' A KOTiiER EURO u was affigned orf/o'wj, that thcrccordis, "fl</^i/^« 




C4!of. 



ought 



Michaelmas Term, 40* and 41* EIiz. In B. R. 627 

h\t been pr9xtme fequenie. — Sed non allocatur. For it was faid, that ^*^T" 
ftil the precedents are fo iii the cominon pleas to make their entries Shor 
IS of the time paft ; but otherwifc it i^ in this court* Wherefore 
the judgment was affirmed^ 

Afterwards, at another day*, it was moved to have cofts allow- ^°^* ailowea 
td, and damages for the delay of execution, upon the 3. Hm.'j, c. lO. ror oiTa jude-* 
Whereupon it was doubted, becaufe it was in Tiformedon^ in which mcnt infumi- 
(bfing the principal aftiofi) no cofts were allowable.— But not- don, 
vithftanding, upon cohfideration of the ftatute, for that the ftatutc P®*^ ^59* 
is general, " That if a writ of error was brought before execution, Gro.Car. 145, 
** and in delay of the execution, and the judgment be afterwards Ro'- '"^^^ 
"affirmed, that the demandant or plafntiff* fhall have cofts and^^^^'^^ 
"daraaees," and it mentions not any aftion, tliey all refolved, ^] ^"J^^n^c '265* 
that colts and damages ftiall be given for delay of execution, al- 1084. 
though in thefirft aftion no damages were recoverable. Where- i^BacAb. 524, 
fore It was adjudged accordingly. 

Matures againfi Weftwood.- Cash, 

Trinity Ttrrrtf ^o» Elix. RolL lOij. 
/COVENANT. The plaintifi^ declares, That Afary Urice was Cov-nam lies 
^ pofleiled of a term for twenty years of art hoQfe in London^ and ^^ ^^^ affignee 
let it by indenture for four years, wherein the defendant cove- ^^* ']^T^'°'*^ 

%^ •. t ,-'. , »ri r ^ aiaijift the fiat 

nanted to repair it, and to leave it at the end or tlie term iuffi- leflcc after »f- 
cicntlv repaired; and tliat Mary RricCy the leflbr, affigncd over her fi-nmentofth* 
rcverlion to the plaintiff; and that the defendant thereto attorned; ^c^m. 
and that afterwards, upon fuch a day, the term expired, and that p "I*^'/^^* 
the houfe was not well repaired {viz, tsfc, and fhews wherein) ;. ^ ' "^^ ^** 
and for this he brought the aftion. The defendant pleads, that S*-'^** 8. c.14. 
before this grant of the reverfion, vlx. fuch a day, he alligned his 
term to one Wtjibury^ who was poflcfled at the end of the term. 
And it was thereupon demurred. The point intended was, Whe- ^''^''' M^'- 
ther the aflignec of a reverfion fhall have an aftion of covenant ^'w^^^Vr 
againft the firft lefTee after the aflignment of his term ? (And it was 3!^. * ^^* 
admitted on both fides, and by the Court, that although he were but Oougi. 1 97.46 r. 
an aflignee of a reverfion for years, yet he was a fumcient affignec i- Term Rep. 
to have aftion of covenant. ) 394* 

And to the principal matter none of the JuftiCes fpake, except jn j,ie^ng tht 
Gawdy ; who faid, that the matter in law ijj with the plaintiff^ pmnt o( a ie;.fe, 
that the aftion well lies. But for a defeft in the bar, and no! *^w f'lacc mua 
upon the matter in law, judgment was given for the plaintilT* ^cflxewu. 
x'iz. becaufe the defendant pleaded, that he granted his leafe, ht^ 
and doth not fliew the place : fo it is not ifluable to be tried ; 
which they all agreed to oe a manifcft fault. 

Another exception was alfo taken ; becaufe it is alledged 
ia the declaration, that Mary Brke granted the revarfion to ilir 
plaintiff, and the defendant, being tenant, attorned. And 
tbe defendant pleaded a grant of his cftatc over before the at- 
aornmcnt ; and he doth not traverfe that he had nothing at the 
time of the attornment. — And that the Court alfo conceived to be 
amifs, Bi^ for the firft exception principally, it was adjudged for 
Che plaiiitiffl 

CM. ^Liz. PAKT \u « T t Anthony 



6i8 



Michaelmas Term, 40. d.nd 41 . EHz. *-InB:R. 



Cass 3. 



In an aftion of 
flander, it muil 
be prccifely af- 
fiimedythac the 
words were 
fpoken of the 
plaintiflf. 
Ante, 6* 



Anthony Theobald dgalnft Brook. 
A CTION for tliefe words, which the defendant fpake to one 
-^^ Gurrtcy : " Bring me to the conftable's houfe, for 1 am rob- 
** bed this night : and bring me to Bonaventure Theobalds' houfeto 
** arreft him ; for old Theobalds {innuendo the plaintiff) fetteth his 
** fons to rob me {innuendo diffum Bonaventure y et quendam Johannem, 
" filium ipfius Jnthottii)^ from time to time." . The defendant plead- 
ed not guilly, and found againft him. After vcrdidt it was moved 
i.RoU. Ab. 51. in arreft of judgment, that the words were not adlionable, becaufe 
it is not alledged that any of Anthonys fons robbed him ; and it is 
but an intent of fetting to rbb, and no aft done : the words alfo 
arc infenfible. — But notwithftanding it was held by the Court, 
that the words were very ilanderou.s, and that the aSion was 
maintainable. And fo it had been adjudged in this court, that 
,' . «« one fuch lay in wait to murder me ;" or, that *' hefent his fer- 

** vant to murder ine." W liercforc it was adjudged for the plain- 
tiff.' — Note. Error was hereof brought, becaufe it is not prc- 
cifely affirmed ^the plaintiff, but it is laid Old Theobaldsy and he 
doth not name the plaintiff, andan innuendo will not ferve. Where- 
upon it was revcrfed. 

Walmfley againft Havand, 

A SSUMPSIT. The plaintiff recovered, and afterwards took 
-^^ forth a capias againit the principal party, which was returned 
non eft inventus. He then took fortli a fcire facias afain I the bail, 
and they were returned nihiL Before the fcire facias awarded, 
the fureties brought in the principal ; and he prayed, that he 
might render himfclf to prifon in difcharge of his fureties : and. 
Whether he came time enough? was the quciUon. Afterv^ards 
he was awarded to be committed to the A4ar/halfea in cxeculion ; 
and the fureties were difcharged.— And it was faid by the Court, 
that there have been divers precedents of that kind in this court ; 
and althoueh he had rendered himfclf after the iccond fire facias 
awarded, before judgment thereupon, he had been , received. 

• Wherefore, &c, 
Barnes^ Si. Ld. Raym. 156. 4* Burr. 2134. 2. Term Rep. 576. 

Berry agalfifl Lane. 

Hilary Terniy 39. £//«, Roll 2^6, 
TERROR of a judgment in the common pleas in debt for ten 
^^ pounds. The iirft error affigned was, That the venire facias 
was m this manner : " venire facias coram Jujlitiariis mflris a die 
•* Pafchain 15. dies 12 libros et legale s homines ^ t^c,*^ and he fhews 
not in the 'writ where" it was returnable, vi%, apud Weflm. as it 
ought to be. But becaufe the roll is venire facias hic^ fa^c. tliat is 
a good warrant for the writ ; and it being a judicial writ, fhall 

* therein he amended. And fo alfo jn libros for liberos^ it was held 
by THE Co^TRT to be amendable {a), — Secondly, Becaufe tlic 
writ *' virercmfti Londini^ et quod habcat ;'* whereas it fliouid bo 
hahcatis. And that was ordered alfo to be amended 9 which was 
doiic accordingly, and the judgment affirmed. 



Casi 4* 

If tt>c ftrft/ci>« 
Jaciti be re- 
turned Hi &i/, and 
the bai! bring in 
tlicir principal 
before the feconH 
J<ir( facial is 
awarded, they 
(hall be dif- 
charged. 
Polt. f 38. 

i.RoiLAb. 333. 
Cro. Jac. X09. 
Moor, 8 50. 
Pr. Reg. 64. 72. 
3. Bulft. 182. 

Case 5. 



Amendment. 



Ante»433. 
{a) Raym. 417. 
1, Kcb. 563, 



Walford 



Mjchaelmas Term, 40, and 41. EIiz. In B. R. 619 

Walford agahtft The Hundred of Beners- ^^^^ 6- 

ERROR of a judgment in an aftion upon the fratutc of Hue if a continuance 
AND Cry: wherein fValford {xa^^oitth thTit Andrews, ^^i^^r^n^T in^^^^^ 
Tenant, was robbed, and Walford brought the aftion. The de- ^^'^."1,^ V^^^^^^ 
ftndant imparled ; et Idem dies datus ejl pr^dUio Andrcvjs ; whereas the parties, the 
itlhould be cldem Walford. Afterwards the defendant pleaded, mif -entry can - 
and after that waived the plea, and confefled the aftion. And ^^^^\^^!^^'l^ 
error tliereof brought and afligned, for that there was here a dif- ^^^^ ^^\ ^^"^ 
continuance ; becaufe die datus eft Andrews^ and {o to a ftranger, ' * 
and not to die plaintiff. But it was moved, that it was the mif- 5 *j^' 'l^*/^* 
prifion of the clerk to give a continuance againft a wrong pcrfon, cro. jac. 23C. 
and might well be amended ; as 22. Edw./^, pi. 3. — Thu Court wilfon, 303. 
held, that if -a continuance is to be given to two, and it is given Strange, 136. 

but to one onlv* it is a mifpfifionof the clerk, and fhall be amend- ^39- 

. »> , ^ , • ^ 1 I • i« Com. D15. 

cd, as 22, tdw. 4. pi. 3. IS ; but where no contniuancc is given 5^ • 

to the party at all, but to a ftranger, as here, it is the aft of the Dqugl. 115^ 

Court, and not amendable. And fo was the opinion of the 

WHOLE Court, Gawdy excepted. —It was moved alfo, that the 

appearance of the party after, and his pleading, hath aided thatdif- 

continuancc. — Sed non allocatur. Wherefore the judgment was 

rtvcrfed. x.Fcft.6. 

Sydenham againji Robins. • Case 7. 

ACTION upon the cafe for ftopping a wav. And declares, From what 
•^ Whereas he was feifed in fee of an houfe in Z^uhcrton, and place the jury.* 
that he and all thofe whofc, &:c. had had a wav over a cjpfc of the ^•'•^' ^^^' 
defendant's, called Culver-hou/e-clo/?, in Brujhford, from his houfc ^"^«» ^+7- 
to another clofe called Exon^ which he had in Btufn/ord \ that the ^RolUAb. 614. 
defendant had ftopped his way by erefting of an hedge crofs the ^' ^^ R*y«n» 
way, and the faid clofe, &c. The defendant pleaded not guilty, "^^* 
and found guilty. After verdift it was moved, that this was a 
mif-trial ; becaufe the venire facias was from Brujhford^ whereas 
it ought to have been from both vills ; for the way ought to be 
proved. — The Court held, that in regard not guilty was pleaded, 
and fo the ftopping is properly in ilFue, the vcuue Ihall be only 
from the vill wheie the ftopping is ; but if the ifllie had been 
Dpon the prefcription, it had been otherwife [a). Wherefore it 
wa; adjudged for the plaintiff. 

In Bellafis V. Burbriche, L. Raym. 172. pTcferabls to the primed books, and that 

T<ft«y, C.J. (kid, that he had a manu* by his rtport thejudgmtnt was arrelUd. 
fcript report t)f thi* cafe which vvai rr.uch 

^a) Vide An:c, 260. note ^'*/). 

Lever agahift W-xwq^. Ca« j.* 

ASSUMPSIT. And declares, In conlKit^ration that the plain- a fithcr cannot 
^*- tiff agreed with the defendant that J. Lcvct, fon and heir of "^^i'^^ain «/- 
tlie plaintiff, fliould cfpoufe Con'htnce, the defendant's kinfwoman ; -^^^^^^^'^^^ P[<^ 
and in confidcration that the plaintiff agreed to affure to the faid hiln'^rrpay fo 
(':>Uhnce lands of lol. per annum for her jointure, tlic defendant af- much to his fon, 
fumed to the plaintiff to give to J. Lvet the fon in marriage with in ccnndcration 
^'tiMConftattce 20o!.and alleJgeth hi/.-i/fo llml tlie mai:rino;e took of h'»s fo.v? mar- 
tifca ; and that the plaintiff had aluireJ fuch lands for the join- 7'"? '^JZ^^' 
lurc; and that the defendant had not payed to his Ion the 20cl. , mvi. 
whereupon the father brouj^ht the aftion. Upon mn ajjlvnp/iiy Ante, c^. 
t^c iffue was found for the plaintiff. Tt wa-? moved in ancft of l'^'^- 6S2.«4;. 
judgracut^ that the aftion ouglit not to have been brought by the pl!^^' "^' 

T t 2 futiierj ^'=^^P'=>4- 



(^io Michaelmas- Term, 40. and 41 . Eliz. Ih B. R# 

^'\^*J father ; for thcfon only is to have advantage thereof. But it was 
HawVs. ^^^^^ °*^ ^^'^ other iide, that the promife is only made with tlie fa- 
ther, and all the confidcrations arlfc on his part, and the fon is a 
flranger thereto ; and therefore the fon cannot maintain the ac- 
tion, but tlic father. — But the Court doubted tliercof. £t ad^ 
(m) It was journatur {a). 
moved agjin in Hikiy Term, and judgment given for the defendant. Poft. 652- 

Casl 9. Poe again fl Ddftor Mondford. 

Trinity Terntf 40. Eliz. Roll 

ir.s not atr,on. A CTION FOR WORDS. Whereas the plaintiff was and is a 
l'''b^ridaVhM phyfician, and the defendant intending to defame and prcju- 

^»^cL'JU*p^n;ent ^*^^ ^"'^ ""* ^^'^ ^^^^ y^^'^^ ^^ mnlit'iose^ fpaWe of him thefe words: 
with medicine, " Air. Poc,'" hmuendo the plaintiff, " hath killed Afr. Pasfield, of 
unlcfs it be " tlic Old Jcwvy^ with pliyiic" (quendam Johnnnem Pasfield late in- 
charged that he habiting within the Oldjckry, and nowdcccafed, Innuendo) ^^*' which 
w/lvwf adraini- " phvfic was a pill, and the vomit was found in his mouth ; and 
ftcred it for iliat *' Dcilor Jtkih^ and Dattor Paddf^ (quofdam Hcnricum Atkins^ et 
purpofc. J^hiinncm Paddy, doftors in phyfic, innuendo) ** were there, and 

I. Roll. Ab. 54.. " found it fo, and it is true ;" ubi revcia neither the faid Dofior 
Winch. 40. /iikins nor Dotlor Paddy ^nox any other, ever found any fuch thing 
Kctlcy,69. i;^. fQ he committed by him ; et iwi revera he never adminiftered any 
1! And \l%y P^^^'fi^ \xx\Xo him in pills or othcrwifc, &c. The defendant pleaded a 
A.Bac. Ab.4gi. concord in bar, which pica was ill pleaded (as it was agreed on both 
f. ifo. fides); whereupon the plaintiff demtirred. And now Coke, -^z- 

f e^f. 276. torney GcnaaU moved, that an aftion lay not for thefe words ; for 
it is not any llandcr to a phylician to fay'of him, that 'he killed 
one with pliyfic ; for he might do it involuntarily, in not know- 
ing the difeafe, and no difcredit unto him. — PofiiAM and Fen- 
Kcii held, that the aftion lay not ; for it cannot be any difcredit 
fo a ph\ ilcian to fay, that he killed one with phj-flc ; it is an ufual 
And common cxprelTion, and it may be without any default in 
him; for they may miftake the difeales in their own bodies, much 
more in others, and apply wrong medicines, which may be the 
caufe of the patient's death, and yet no difcredit unto them : but 
if it had been that \\^^ fcienter ct volivUane^ miniftcred pliyfic to one 
to kill him, that toucheth him in his profeflion, and the words 
had been aftionablc, but not here : ana although it be faid, that 
he never adminiftered any phyfic unto him, that is not material : 
wherefore they, without any argument on the plaintiff's fide 
(Clench repugnantCy ^nd Gawdy abfente)^ adjudged it for the 
defendant. 

€*•» »«• Aftion againft Barium. 

Afife^ 601. 

to whw pbce *r^RROR of a jud^rment in the common pleas, in trefpafs for the 

tuVhT^! taking an ox in Afyfi/hal. The defendant juftifies, becaufc 

(tj/ " land in Dodin^^ton was holdcn of him, as of his manor of Chelfia^ 

K^rt. 855. by an heriot cullom. The ilfuc being upon the tenure, a venire 

?-Roli Ab.605. M-/<7j was avv.irdcJ fiom Afynjhal, Dodinpon, and the manor of 

Cro. jac. 405. Chclfea^ and found for the plaintiff, and judgment thereupon ac- 

h^ Ray. 171. cordingly. The error alligncd was, Becaufc the venire faciai 

is awarded to more vills than it ought to be ; for by this 

means the fheriff may return more from the places, where 

there caimot be any notice, and the parties thereby preju- 

* diced I 



Michaelmas Term, 4c, and 41. Eliz. In B. R; ^-^ 

diced; apd therefore it is an'equal mifchief, where the venire facias Actios 

is to more vills than it ought to be, as where it is to fewer. 'And zk^hau- 

Walter, for the tlalnti^\ cited a judgment in the exchequer, in 

an information or an nitrufion of lands in -D. and S. For the 

lands in J5. they were at iffue: for the lands in S, it was demurred ; 

aiid a venlrefacias was awarded from D. and 5. and after vcrdift 

it was moved in arreft of judgment ; and for this caufe it was 

ftaycd. 

POPHAM, C. J. and ALL THE CouRT held, that if a venire 
facias was awarded from more vills than it ought to be, it is ill, 
and erroneous ; for the mifchief which thereby might happen to 
the party. For, peradventure, the (heriff would return but oue or 
^vo from the place where beft nfotice might be given, and all the 
reft from places where it needed not, and who by intendment 
cannot have as good notice as the others {a). But they all held, 
tliat the venue was well awarded in this cafe ; for Afynfhal, which 
is the place where the taking was, is as much neceffary as the otlier. 
For although the iffue is upon the tenure, yet the damages are 2. Ro.Ab.6o», 
a!fo to be enquired of; and they of the vill where the taking was, ' 
might have the beft notice thereof; therefore the vemre facias 
awarded from 'that place alfo is well enough. Wherefore the judg- 
ment was affirmed. 

U) But this error is now cured by ii. Jac. i. c. 13. i6- & 17. Car/}, c. 8. 
4.& 5. Ann. c. 16. and 3. Gen. 2. c 25. 

Johns a^':iif[(} Came. Cxsr. n. 

r\EBT upon 2:Ediv, 6. c. 13. for not fetting forth his tithes, fe'tin'^uu^^^^^ 
^^ The defendant pleaded not guiltv, and it was found againft tTwhch^oT^'* 
him ; and now moved in arreft of judgment, guHty or *>iUehet 

First, That this aftion of debt lies not, bccaufe a certain ^'^«sf«'<^'*^""> 
penalty is not given by the ftatutc, but the treble value ; which is ^^! ' f""'"" 
uncertain. — Sed non alUcalur. — Vide ante^ Bcdlc v. Shermans ^ 608. brougliVfor^cUU 

Secondly, Becaufc the defendant pleads not guilty, which is offence, 
not any iffue in an aftion of debt ; but he ought to have pleaded Ante, 257. 
non debet. — 5^^ non allocatur. For this aftion being founded upon ^^^' ^'V 
the ftatutc, upon a wrong done, thi3 illiie is good enough, ^°' ' ^^^ 

Thirdly, Becaufe he brought this adlion for himfeif and the ^^l^J^}^}^' 
queen ; and the queen cannot have any benefit thereof; nor is it Noy, 56*.^' ' 
given to the queen by the ftatutc, but to the parties grieved only. Moor, 914. 
—And It was held by the Court to be a material exception ; and ^^^' 2*8. 
thereupon the Court commanded the judgment to be ftayed. ^-^^c. Ab. 104* 

* -» t* . ?.Co. D15. 2 26» 

2. Hawk, 378, I. Term Rep, B. R. 642% 
Vide 5J.&9,W11I. 3. c. II. f. 3. 

Owen Wells aga'infl Hemmerfon, Ca$l h. 

A CTION for thefe words: ** Thou art a rebel, and no true To fay «« Thoo 
""" •' fubjeft.** After verdift, it was moved in arreft of judg-"*'^^».rc*^ci,*';t 
ment, that an aftion lay not for thefc words.— And the whole ""^nte^iT*^^*^" 
Court was of that opinion : for he may be faid to be a rebel podVe-H. ?78» 
>3pon.a proclamation of rebellion againft him in an En^l'ijh court. ,, Roii^Abr. * 
Ajid U was afterwards adjudged accordingly. ^^, e,,* 

Salic, 6j6* U. liUym. S12. %, Mod. 2«i^ 

T t 3 Qx^ix 



6a2 Michaelmas Term, 40. and 41 . EIiz. In B, R. 

Ca« ^3- Crofs agatnft Andrews. 

Hilary Ternty 40. Elix, Roll 1032, 
Xt is no plea for "a CTION upon the cafe againfl an inn-keeper of Siratton-AuHef 
an ^""'^j^^PJJ^^ -^^ in the county of Oxon, And declares upon the common 
bis'gueft's^goods cuftom of the realm, that an inn-kecpcr fhould keep the goods of 
were loft, he his guefts fafely, ^c. The defendant pleaded, that when the 
wasfick and in- plaintiff lodged with him, he was lick, and of nm fane memory^ 
fane, ^y occafion of his ficknefs whereof he then languilhed. — It T^^as 

Ante, 39 . thereupon demurred; and adjudged without argument for the plain- 
'• Co\t^^ b*' ^^^' '^^^ ^^^^ defendant, if he will keep an inn, ought at his peril 
licom-Digiiio. ^° '^^^P fafely his guefts goods ; and although he be fick, his fcr- 
a.Bi.Com452. vants the n ought carefully to look to them. And to fay he is of 
I. Hawk, p] C. nonfane memory^ it heth not in him to difablc hirafelf, no more 
452- than in debt upon an obligation. Wherefore it was adjudged for 

the plaintiff. 
Cas« 14-^ Clerk againfi Clerk. 

imu'^rrrofthe fPjECTlONE FIRM^, The defendant pleaded not guilty, 

Unlc^^^^s adif! and found for the plaintiff. And it was mo^ved in arreft of 

continuance and judgment, that the ventre facias was, ad faciend, jurat, inpiacito tranf- 

not amendable, greffionisy whereas it Ihould have been inplacito tronfgrejftonisct ejtt/i»He 

Ante, 158. 433. j^,.^^ . jjj^^ therefore a mif-trial, and pot aided by any of the 

° ' ^^ ftatutes. But it was moved e coutruy that it was but a mif-award- 

9.C0. 7S. a. 5i^g of procefs, which is aided by the ftatutcs. The ivrlt alfo, 

wfnch'^^* *^' being judicial, may be well amended, for it is but the default of 

3.BuiihVij. the clerk; the roll (which is the warrant thereof ) being good. — 

a! Hav^k. A25. The CouRT {Q\\\'n\ abjentc) held, that it is not amendable ; 

a.Ld.Ray,i522. for non conjiat but there niay be an aftion of trefpafs depending, 

Wilf. 303. ^j^j ^Yi^it this venire faaas is awarded theixiipon. And although it 

were faid, that an ejedione firma is but a plea of trefpafs in its 

nature, yet the aftions are feveral, and therefore the vcti'ire facias 

ought to be accordingly- ; and this mif-awarding of procefs is not 

aided by any of the flatutes. But if there had not been any 

ventre .facia Sy it had been holpcn by the 32. Hen. 8. c. 30. and 

18. Eli%, c. 14. Wherefore a nemre facias dc novo was awarded. 

Ca8i 15- (pollings agatnft Harding, 

Antei 607. 
A rent- charge T^HE cafe being again moved, Gawdy, Fenner, and Clench 
for Jifc granted A \iq\^^ that the Icafe being made by the lord's licence with one 
^^!!^?^^ '^"^ entire reicrvation, it is a good Icafe, aixi a good rent, which ilTueth 
with power to 0"^ of the entire land, copyhold and free. For the rent is for 
difirain on both; land (and the profits tjiereof), for which he may well contraft, 
tho' the granttcand in rccompence whereof the rent is to be paid ; and therefore it 
may dijlrain the jji-^g^-i^ ^^^ ^f both. And it is not like to a Icafe of land and goods i 
liTuft avp^rfor ^ ^'^ ^^ ^^ ^^ ^^^^^^ iflTuing out of the land only, and nothing out 
the rent af iffu- ofthe goods. And whcil the revcrfion was granted at one time, and 
jngoutot the an attornment thereto, and a furrcn^cr is m:yje to his ufe at the 
inheiitance. fajj^g time, which is prcfentcd, and an admittance made accordin<;- 
Antc, 607. 2y^ although at another time, yet it fliajl have relation to the time 
o ,1 *u of the ffrant, and furrendcr made : as where an qblic^tion is made 

l.Roll.Abr.2^4. , ^11 r 1 ^ ' 1 v^ I 

2.R0. Ab.408. by two, and the one Icals at one time, and the other at an- 
426. Kob, 1 7 7. Co. Lit. 14;?. Roll, Rep, 336. Cro. Ja9. 390, 7, Co. ^2. a. Bac, Abr» icj, Gilb^ 
^*«n.i<4- Other 



Michaelmas Term, 40. and 41. Eliz. In B. R# 6313 

ifihcT time, yet it is one entire deed, and fhall relate to the time of Collikgi 
tbefirft delivery; and the party (hall declare accordingly. So «^*'V 
here, it is now in tlie hands of the grantee, as one entire reverfion, akoiko. 
and he (hall declare accordingly ; and although they be feveral re- 
Ycriions, yet he (hall declare upon the truth of the matter ; and 
upon the whole cafe the aftion is well brought. As a man may 
have one aftiori of debt upon feveral obligations ; fo, upon feveral 
grant ofreverfions, he (hall declare according to his cale. Where- 
fore, &c. — PoPM AM held, that the rent was iffuing out of the free- 
hold only, which is the more worthy, and moft regarded in law'; 
and although a leafe for years of a copyhold is regarded as a leafe Ante, 535, 
at the common law, wherefore 2ii\cjedioncfirm^ lies at tlie common 
law,as ALLTiiEjusTiCEsoFENGLAND.exceptthrec, refolved;yet 
tJiis being coupled with free-land, it (hall not be regarded to have 
rent ifluing thereout ; but it (hall be as where rent is referved upon 
a leafe of land and goods. But in«regard he declared upon all 
the matter, tlie Court fliall adjudge upon the whole matter, that 
he had good caufe to recover ; as in cafe where a leafe is made of 
land and goods, rendering rent, and he brings debt thereupon, 
and declares according to the cale, he may well recover: fo here. 
Wherefore it was adjudged for tlie plaintiff. 



Hodges againjl Smith. 



Case 26. 



D 



EBT upon an obligation of 200I. The defendant pleaded, A defcafance, 
that after the obligation made, the plaintiff, by his indenture though made 
Ihcwn in court, covenanted and granted unto him, that if he paid ^1^^^?^"^"' ^* 
lool. at fuch a day, th^t the obligation (hould be void ; and al- which krcLe? 
ledges infaflo^ that he paid it at the day, &c. The plaintiff here- oiay he pleaded' 
upon demurred ; for it was moved on hi5 part, that being made t«^ar lodcbt 
after the indenture it cannot be pleaded in bar thereof ; but he ^" ^^* '*°*"*^' 
ought to take his advantage tlicreof by way of covenant, and it Poft. 755. 
(liall not enure as a defeafance or releafe. — But all the Court C0.Lit.a36. b. 
held the contrary, that he may well plead it in bar, and (hall not *37-a. 
be put to his writ of covenant by circuits of aftion. And there- Moor""sIi 
fore they all held, that the plaintiff (hould be barred. Carth. 64/ 

See 4. & 5. Ann. c. 1 6. 

Fyfh againft Thorowgood. ' Ca« 17* 

A CTION FOR WORDS. Whereas fuch a commifTion ifTucd To fty of a 
^^ out of the exchequer to the plaintiff and one % ^' and by force commiOjona: 
thereof tliey took divers examinations of witneffes, and returned '^^V'd 'h^J*^" 
them into the exchequer ; that the defendant faid, '* The tfnofitionori*^^ 
** plaintiff has returned, as the depofitions oi witneffesy into the <^ nejjii who 
** exchequer, the examination of divers who were never (worn.** ** were not 
The defendant pleaded in bar, that a commifiion ifTued to ex* '* <"worn*' is 
amine, ?cc. and that the plaintiff returned into the ex^ !^J^"*'i!!'-'*?i- 

.', .. r*vot r cannot be julti- 

chequer the examination of one /. «S. who was never fworn, ficd by pica 
and therefore, 6cc. — And it was hereupon demurred; and ruled that hi r«urn- 
by all THE Court, that the juftification and bar were not good ; «^'^^« dcpofi- 
for although one who was not examined was returned into the **^" ^^ *!*'*'**• 
exchequer, yet that docs not prove the words, "that the plain- "'-^^ °°* ^^™* 

T t 4 ' « tiff 



624 Michaelmas Term, 40. and 41. Eliz. In B. R. 

Fysk *' tiff returned, &c.;*' becaufc the jullification is of one yritncfs 
ofainft Qj^iy returned, and the words are in tlie plural number. 
THOftowGooD. J J was then movcdj that the words therafelves wcrcnot aaionablc ; 
for they be not any flander which will bear an aftion. — But a ll thk 
Court rcfolved to the contrary ; for being averred that he was a 
f ommiffioncr, and that he returned depofitiojis taken before hiin 
and his companiou into th^ exchequer, it is a great fault in him 
to certify one as fworn and exaiiiined upon his path, who was never 
examined ; and it is fineablc. Wherefore it is a great flander unto 
him to report it of him, ice. An4 it was adjudged for the 
plaintiff. 
^^•* **' ' Barton againfi Aldeworth, 

L^tSaii ACTION on the cafb. WheVcas he purfucd a /^l///i2^ againft 
purfuant to the '^ J- S. intending to declare in debt upon an obligation of 
a3.f/#i».6.c.io. lool. wherein he was bound unto him, and delivered that writ to 
U not liable to ^he defendant, being fheriff of Brlftoly to execute it ; and advertifed 
an^^tinnn the ^"^ °^ ^^^ ^^^^^ of aftion, and of his intent to declare in debt, 
cafconthenon- ^c. and that the defendant, being Iheriff, arretted him by virtue 
appearance of of the faid Writ; that the defendant had let him at large ab/^c 
the party at the a iiqm fecuritate inventa fov h'ls SL^Y'^^LTTincCj and at the day returned 
Z^^i^ but'-'/hc ^^f^^ corpus; and that the faid J, S. did not appear at the day, but 
had'rcturncd ^ ^^^ himfelJF ; and that upon an habeas vcrpus awarded, he returned 
tep't corpus and faratum hateo, which was falfe ; \yrhereby the plaintiff was delayed 
faratum babe-, in his fuit ; whereupon he brought this aftion. The defendant 
he might luvc pleaded, that the faid 7. 5. being arrefted, put him In furetks for 
f^omcmpt. ^'^? appearance J^N. and J.JD. who areperlons of fufficient eftate 
f oft. 672. 645. withm the county, who were obliged unto him in 40K for the 
SC8.851. 873. appearance of J S. at^the day in the writ mentioned, and pleaded 
Ante, 460. the 23. Hcrt. 6. c. lo. by reafon thereof he let him at large, ancl 
I.Sid. 439, traverlcth absq^je hoc that he let him at large abfaitc aliqua 
Mod,P.ep,^2%.Jecunttite invcnta frout, &c. And it was thereupon demurred. — It 
^%^ik '°'' "' ^^'^^ nioved in the plaintiff's behalf, that the (heriff at his peril is 
*'. s*aund.^6o. ^^ ^^^"^ ^^^^^ ^^^^^ ^^^ ^^^^ 8^^^ *^^^ fufHcient fecuritie^ tor his 
t. Mod. 244. appearance, and to fave himfelf harmlefs conc?;rning it. For al- 
a. Mod. 83.177. though the ftalute appoints him to let to bail, }Ct il appoints hin^ 
Ld. Ray. 425. not what fecurity he fliall take ; but he ought to take fufficient 
722.904. J 564. to prefcrvehimlelf indemnified. —But ALL Tii>; Court held the ple:^ 
cLm'! Rep. ^^^ traverfe to be good ; for the ftatute appoints him to let at largq 
J32. 264. upon bail, and therefore he is compdlabie to take bail, an^ it is 

Gib. Rep. 84. left to his difcretion what bail he will take. Thvn when he 
l''v^rc\vu\' ^^^^"^'^^^ ^^^^ ^^^c ^00^ bail of him, i^iz, J N. and 7. D. having 
687.'^'^*^ ' ' fufficient eilatcs within that county, that flr^ll excufc him 
10. Mod. 288. agajnft the party ; and it is not reaibnablc he fhould be chargeable 
a.Tcrm Rep. in ah aflion uj-on the cafp for doing that which the law appoints. 
5^5; And Pop II AM faid, if he takes one furcty it is fufficient, for he is 

not compellable to take two fureties : and although that he ha4 
not the body at the day, and afterwards at the day the habeas c^rpui 
returned quid paratum hiiheoy when he was at large, that is a 
contempt to the Court, and fineable ; but it is nothing s^s to the 
party, nor can he ^ake any advantage thereof. Vv'herefpre it was 
adjudged (ox the deftndiint. 

See 4. Aji!)t e. i6. f. a^.« 

'•* ' Bennioa 



Michaelmas Term, 40. and 41 • Eliz. In B, R, fejf 

Bcnnion againft Watfon and Elwickc, ^*" **• 

LATE SHERIFFS OP THE CITY OP YORK. 

Trinity Term, 39. Eli%. Roll 1084. 

ACTION upon the cafe. Whereas Jchn Bell was indebted to KnM^ae^amtm 
*^ him in three feveral obligations in 141 1, and he fued a latitat czXtMatwpaaA 
foftcd to the IherifF of the city of Tork, ^c. with an intention 2«^i*»ft>rin 
that, the fkid John Bell being arrefted and ap])earing'according to ^.^f^ *^7S 
thccourfc of the court of queen's bench, he might have exhibited fuir'ihla not 
iis bill of debt upon thofe three obligations againft l^im,- and i^bate by tbe 
have declared againft him in cuftodla marefchalli fecun^um confue- **<^*^h o^«n« «* 
tud'inem Curiae, to recover his debt ; and"'alledges in A^^c?, that '^^^^^"^^^ 
the defendants by force of this writ arrefted him at I'ork; and 'f the vl^]^^ 
aftcn\-ards, to defraud him from taking the advantage of his and bctontri*^ 
writ, and to recover his debt by that means, before the return of which (haU be 
^tynxxt^t Cropwell'Bl/hopy in the county of Nottin^ham^ they let the ^iwciheeiaipe 
faid John Bell at large, and to efcape, without taking any realon- ^"^^'^^^ 
able fureties for his appearance, per quod he is not only delayed of the arreft «»« 
his fuit, but utterly deprived to have any remedy fot his debt againft made, 
the faid John Bell, to his damage of 200 1. The defendant pleaded Ante, 114. xjm^ 
not guilty. And after the venire facias returned, and before thep*^' - 
trial, one of the defendants died. Upon fnrmife to tli6 Court, ^ ' ^ ^^ 
that one of the defendants was dead (^7}, the dlflrin^asy and thecomb.69, 
Ttcozdof niji priuSf was betwixt the plaintiff, and the one defendant Caith. 145. 14S. 
only ; arid it was found for the plaintiff to his damage of 200 1. »• Show, i**. 

After verdift, itwas moved in arreft of judgment. First, That the *' ^"*- *^«» 

bill was abated bv the death of one of the defendants ; for it beinsr '"^^ .1, ,^« 
• • r\- s • t 1 11 /I '/f 1 ^ 4. Ba.AD.44»« 

a joint action, wherein they are chargeable as iherifFs, and notCuwp. 196. 

feveral, the bills fhall abate by the death of one of the defendants. s.BLCom. 1644- 

^Sednon allocatur ; for it was held by the whole Court, that 

this being but in nature of a trcfpafs, and merely pcrfonal, and in 

regard he cannot have another aftion but againft tlic furvivot:, it 

lliall not^abate, no more than in trefpafs or replevin. 

Seco^'dly, Bccaufc the trial was only by a venue of Cropwelf^ 
whereas it ought to have been from 7crk alfo ; for there was tlic 
principal part of the aft, vjk. the delivery of the writ, and the arreft: 
and upon not guilty pleaded, all is in iflue. — Scd non allocxitur : 
tortlic tortj where\ipon the aftion h founded, is upon the efcape i.RoU.Ab. 66», 
paly, which was comn^itted in the county of Nottingham. And 
although the arreft is to be proved, othervvife there cannot be an 
efcape, yet the efcape being the fole caufe of the aftion, the trial 
Ihall be by 4 venue from that place only where the efcape was. 
And Fenner fiaid, that Tork wj^s a city and a county, which 
could not join with ^ny other ; therefore, alfo, the trial fliall be 
onjv from the county where the aftion is brought. 

iHjRDpy, It was moved, Whether this aftion lay upon th^s 
efcape, and for the non-appearance of the party ? for it 
was faid, that that wa$ an offence to the Court, for 
which they ihould be i5ned ; and they ought not to be twic^ 
punilhcd.— But the Court held, that the aftion did liej 
hccaufe here is an apparent negligence in the fhcriff, to let him at » 
hrge without any bail, and thereby the party prejudiced in hi« 
iait, as he hath declared ; and thQ defendant is found guilty tliereof ; 
jjid therefore it is reafonable, that the party Ihould have hi^ 
(«) See t^. Car* i. c. 8. and S. 5» 9, Will, t, c. ;x, f. j, tnd i.Com. Dig. 57. 



626 Michafclmas Term, 40. and 41, Eliz. In B. R, 

BsKVioff aftioft : and k ?s not like the cafe where the flierifF let him at 
Watson ^^^^^ upon fureties ; for there he did his Jrjo'ir^ and that whereto 
•DdELwicKL. h® ^'*s compellable, and no wrong ; but it is not foheve. Where- 
fore it was adjudged for the plaiiitifF, and error brought \ but it 
.was difcontinucd. 

cas« 20. Markham agaiafi Gonafton. 

Trinity Term, 40. i://«. Roll 2\z. 
rtsi dfcd after A CTION upon the cafe. Whereas the plaintiff and Sir Francis 
execution be al- xA />^//^^^^/,^^ jg. May, jzi.' Elt%. were bound in a reconufancc 

tcrial pUccTy ^^ ^'^J' ^° '^/'^fi'* ^''^O'* ^^ ^^ ^^^^ rcqueft of the faid Sir Francis 
the parties or a fVtllottghby, and for his debt, with a condition for the payment of 
Granger, as by 315I. upon the 1 9. Nov, follow^ing ; and whereas Sir Francis fi'l!- 
an infsrtion of /ougbby, 20. Mavy 38. i,7/s. agreed with the plaintiff, that he and Gef- 
the chriftian r p^^ vvould'be obliged to the plaintiff by an obligation of loool. 
tion of thcobil- ^''^^ a condition for the payment of the laid 31 5I. upon the iaid 
gor, orotacon- 19. Ts/oz'. and to fave him harmlefs from the faid reconufance, and 
dition, though from afl damages and lofles by reafon thereof ; and whereas upon 
fortheadvan. ^j,^ f^jj ^q. May, 38. Ehz, the defendant, at the requeft of the 
««^ he may *' '*^^^ *^'' Francis Jfilloughby, ysxit for mam fricditlifcripti obiigatoniy 
pl^dtioneftfac- and of the condition, leaving a fpace in the faid condition for di- 
/»w, and avoid vers Englilh words to be put therein, viz, in quinta lined inter hac 
the deed j but ^crba " an et Tracy y^ and another fpace in the fame line, &c. (and 
aftewafdshavc '^ mentions divers) ; -ind afterwards upon the fame 20. Ma\y 
anaaionon the ^^^* S^- Fli%, the faid Geffrey Fox i'e^ltd fciiptum obligatorium fra- 
cafc againft the di^iitm, with the faid fpaces therein, and delivered it to the defcn- 
pcrfonwho dant (having the faid fpaces therein not filled up), to the ufe of 
made the alte- ^j^g plaintiff, as his deed ; that the defendant, fraudulently and ma- 
covcr damages licioufly intending to deceive the plaintiff, and to avoid the faid 
for the injury 5 bond quoad the plaintiff, poflea the fame day and year, without the 
although in fu- affent or notice of the plaintiff, filled up the faid fpaces, viz, in the 
|j^"P°" ^^ firft fpace interlining the word '* IViliiamC^ and in the fecond 
nonfuitc7upon ^P^^^» betwixt the words *'an et Tracy,'' interpofed thefe words, 
theifTue, " that " of Raglay,' and fo of Others ; and that the laid 315I. was not 
«• tlie alteration paid at the day; and that afterward Ji^illiam Tracy fued a / v 
•« was not madcy^,^/^j uponthis reconufance, and had judgment upon two ;/./.•.; 
♦»atier thefe il- returned, and had execution thereupon ; and alledecth in fado, 
♦« vjry." ^^^^^ ^y realon 6t tins inttrpontion of tiicie words the obligation 

TofV. 8co. had loft its force, and he is deprived of JiJs remedy to recover his 
».Ro:i. Ab.20, ^^^ ^o his damage, &c. The defendant pleads, tliat he was fcr- 
30. vant to Sir Frauds I'Villoughby, and by his command writ this obli- 

ikC").27. gation, leaving the fpaces therein for the infcribing of the faid 
^^Rrli r'w' words, after tiie enfealing and delivery thereof by the faid (7. Ai, 
liteon. 282!^* "^^^^ ^^^ h^ ^^'^^^ i^ accordingly ; and that after the enfealing and 
ti.Lev. 3?. 220. delivery thereof by G, Fox to the plaintiff's ufe, and before the 
5,00.23. a. 119. plaintiff had any notice of that obligation, he, by the command cf 
JO. Co. 92. ^ Sir Francis Wilhughbyylih maflcr, did iill up the faid fpaces by the 
Cro. Car^^r «i^"^ of the faid G, Fox, anfl that afterwards Sir Francis Jf ii- 
' *''^' hughh fealed and deHvered it to the plaintiff's ufe. Whereto the 
plaintiff agreed, and traverfeth, that \\e, J also, fraudu loiter, et md'i- 
tlose, filled up the faid fpaces, wi^^^'© et forma, l^c. And it was there- 
iipoh demurred.— Firft, It was held by all the Court, that 
the Tiddition of a condition to an obligation, which was fingle, 
although it be for the advantage of the obligor, fliall avoid tiie 
Jted, being done by the obligee, or any ftrangcr ; for he is put 
Q have liis remedy againft the ftranger, by ah aSioa upon the 

calc. 



Michaelmas Term, 40. and4i, Eliz. InB. R. **3r 

Cilc, Ftde 14. Hen, 8. pi. 27. 36. Hen, 6, pL 5. 26. Hen. 8. >7. ^"'/^^^i^'^ 
ultimo. So of a razure of a condition, 41. Eciw. 3. pi. 1.0. G6KAiTo»b 
58,/&«, 8. pi. 27. 30. £^1*;. 3. pi. 8. This interpofition alfo 
X/f the words in the condition of the obligation being words ma- 
terial (as it was agreed by all the Court that they were), avoids 
the d«d ; for it is parcel of the deed', and by thofe words the con- 
dition is altered : for whereas before it did not appear to which of 
the Trades tile rcconufance was entered, it is now made certain ; 
ind it may be that it was now to another man than in truth it was. , 
But although it were not fo, yet it is altered ; for whereas it be- 
fore refted upon an averment, yet it is now altered ; and if before 
it was void for want of thofe words, as they conceived it was, it is 
now made good by inferting of tliem ; which alters the deed, and 
therefore it is ill. And altliough this alteration is for the benefit 
0/ tjie obligor, yet it is not material ; for the deed ought always to 
remain as it was at the beginning. And therefore Fenner faid, a.Levinr, ^c. 
that it was adjudged in the common pleas, that where Fecknam^ i. Roll. Ab. af, 
I dtmof Piiui^Sj made a leafe for years, rendering 27I. (as was the 
^ intention) but the indenture of the Icafe was 26I. but the counter- 
I part was 27I. the Icffec afterwards, according to the intention, and 
I to make it agree with t^ie counterpart, made it 27I. and fo it was 
I for the benefit of tl>c leflbr ; yet it was ruled, that for this caufe the 
} leafe was void ; fo here. Fide 28. Hen. 8. pi. 17. and 9. Eiiz. 
Djer, 261. It was alfo refolved* that although it was filled up by 
the appointment of his mailer, that Ihall not excufe him from 
the ill faft. And although it were done before notice of the deli- 
very of the obligation to the plaintifF*s ufe, yet it was holden, thait 
it was not material ; for prefently, by the delivery to the plaintiff's 
ufc, it veiled in him without notice (and the obligor had no fur- An^e, 54* 
tlicr to meddle therewith) ; for being for his benefit, it veiled in 
him before the agreement, and is not countermand able, as 
33. Hen. 8. pi. 29. is. And although the interpofition of thofe 
\\ords was by tlie aflent of the obligor, after tlic obligation was 
fealed, yet it is not to any purpofe. But if it had been appointed 
by the obligor before the enfealing and delivery thereof, that it 
Ihould be afterwards filled up ; Popham faid, it might then per- 
sdventure have been good enough, and it fliould not have made 
the deed to be void ; but being after, it ihall avoid the deed. 
^Vherefore it was adjudged for the plaintilF. 

Note. Mariham had before brought debt in the common n. Co. 27. a^ 
pleas upon this 6bligation againil G. Fox, who pleaded the filling ^<>^^' Soo. 
up of the fpaces, after the bond fcalcd and delivered, and fo not 
his deed: and it was heid clearly to be a good caufe of avoiding the 
bond. Wherefore he there took iiTue, that they were not filled up 
artcr the fcalingand delivery; which being proved at the ni/i frlus^ 
lie was nonluited. Wherefore for his remedy he brought this ac- 
tion : and it was adjudged accordingly for the plaintiff, and a 
writ awarded to enquire of damages. 

Sawyer againft Wilkinfon. Case 21. 

Trinity 7erm, 40. Eiiz, 

T^RESPASS, for the taking an ox-hide, 10. June^ 38, Eilz. at Ooods brought 
'■' St, Peter's, in Cornhiii, The defendant juftifies, for that the **> LeadcnhaU- 
mayor and commonalty of Lonci^n were feifcd in fee of an houfc ^/nnol'^^^^ 
tailed Leaden-haii, being the pUce where ; ^nd bec^ufc the faid anintd as da. 
Qx-Uidc, ^t th$ timp ^fprefaid, was there damage fcafant^ ho, as wagepafun:. 

Aptc, 75. J. ^*d, Rayin, 1590, i^, Sfrangc, ij^S. i, Wilf, 107. 



^a* Michaelmas Term, 40. and 41. Eliz. In B. R, 

SAWYCt bailiff to the faid mayor and commonalty, and by their command, 
-»^a^«/> tQoit {^ th^re damage feafanty fcfr. qua ejl eadem trayifgrejfio. The 
"• plaintiff faith, that London is an ancient city, and that a common 
market is kept there every Friday^ within Leaden-hall aforefaid, for 
hides and other things -, that the faid 10. Juncy 38. Eliz,yiz% Friday^ 
and market-day there ; and that he bought the hide in tlie market 
there of one fV. B. and delivered it to fVUllam Hunt to carry away; 
and the faid fV. Hunt put it upon his fhoulders i:cady tq carr\' it 
away ; and he having it in a baflcet upon his Ihoulders, and going 
therewith from Leaden-hally the defendant took it, &c. which he is 
ready to aver, '&c. And hcreupeiKthe defendant demurred.— 
First, For that the defendant juftifies damagt feajanly and the 
plaintiff Ihews this matter to take from him his authority for tlic 
- caption ; and he varies from the manner of the caption, and doth 
, not ^conclude his pka,' qua eft eadem^ t^c, — Secondly, Bccaufe 
the defendant jpftifies for a taking, which is intended upon land 
damage feafant : and the plaintiff fpeaks of another, and doth not 
traverfc. — Sedmn allocatur; for the plaintiff fliewing the fpecial 
caufe of tlie hide's being there ; and that for this caufc the defen- 
dant had colour to take it ; but by reafon of the matter in law, 
which he fhewed, his taking was not juftifiablc, it fccmeth thit 
the replication was good, and he needed not a traverfe ; and the 
conclufion of the plea, qua eft eadem tranfgrejfia/h not requifitc, 
becaufe he agreed in the place, and time of the caption ; but (hews 
caufe why it is not diftrainable. And they all agreed, that this 
ox-hide brought into the market, and fold, cannot be diitraijpcd 
damage feafant, — Popham held, that the plaintiff ought to have 
traverfed ; for he doth not agree in the manner of the caption. 
But Gawdy and Fenneil^ f(?w/r^, becaufe it is his matter in law; 
and therefore it fufficeth to plead it without any traverfe. Where- 
fore it was adjudged for the plaintiff. 
Chx^xu Baron againft Sleigh, 

Hilary 1 erniy 40. £Ax. Roll 

An aaion on it CTION upon the cafc. Whereas the plaintiff was bail in the 
f^d^«S* S^^^^'s bench for one A, S. at the fuit of miliam Rich in 

procuring a/fV* ^^^ht tor 19!, ; and whareas the faid J, S. was fued in debt by the 
fa€i0t to be delendant for 200K in which aft ion one John Star ton and Hercuh\ 
Aid, and two jinthony were bail for him ; that the defendant, after a recovery in 

t^^r^^^'^on ^^^5 *S^'"^ f^^^ ^^'^ ^- ^' of '^^^^ f*'^ ^^1- ^00*^ fo^^^ 2icapios\ 
who was not ^g*'"ft the faid J, S. which was returned non eft inventus ; and that 
KvJ.. the defendant aftcr\vard§, at IVeftmin/lcry <£fc. by fraud and coviii. 

l'oft.793. 838. to charge the plaintiff with the laid debt of 206I. recovered ut ju-. 
';.lfen.(,,p\.4i.pra, informed the Court, in deceit of the Court, that the plaintiit* 
Koil Ab. xoi. was bail for J,S\ at his fnit (whereas be was not, but was bail only 
jrZ'J^l'jf). ^^^^ ^^*"^ ^^ ^^^ f"'^ of //^//i^w RLhy v/hich was well known to tlie 
Glib. Caf. 214. ^^^^ defendant); he thcrcw\ion' h/jr/fte im^ctravit a writ ofyZ/rf /itV-Ji 
Raym. 503. upon this bail againft the plaintiff-, which being returned «/'/'//, he, 
Warch. 47. by the like fraud and deceit, procured a fecond fc re facias againft the 
I rl Rc^*^*'x P^^i"^*^'^'*^^^'chwasalfo returned ff//'// ; whereupon it was ad judced, 
3! Term Rep*^ ^^\^} ^'^^ ^^'^ Sleigh the defendant (hould have execution againll tli^ 
^|, plaintiff: that the defendant, pramijjirjim non ignaruSy by the liU 

frawd and decek to arrcft the plaintiff, in deccit^of the Court, pre- 
ci^rcd a capias ad [atisf sciendum ?gaijifl: tjic plaintiff j whereupon thr 

plaintiff 



Michaelmas Term, 40. and 41. Eliz. In B. R. ^9 

pUintiffwasatTcftcd, &c. to his damage, &c. The defendant pleaded Barow , 
nctguilty; and found againft him. — And it was moved in arreft of .*^'"*'^, 
judgment, that this aflion lies not ; for it is to procure procefs 
judicial to be awarded, which is the aft of tlie Court -^ and the mif- 
avarding thereof, although it be upon information of the party* 
h it is the furmife of the party, no a£tion lies for it ; for it is but 
erroneous, and the default of the Court to award it upon fuch in- 
forraation. And in proof thereof, 2U Edw. 4. pL 23. was cited, 
where a writ of habeas corpus was awarded to remove a caufe out 
of London^ for that the party had an aftion. depending hpre^ 
whereas in truth he had not any. Altliough this were upon the 
L'ltbnnation of the attorney to tne party, and the other delayed in 
bis luit thereby, yet it is not aSionable : but if it were awarded 
cpon furmife, that he was fervant to one of the clerks, where he 
was not, there an adion would lie ; for that the Court could not 
know, but merely upon the parties information. So here, before . 
the procefs had been awarded, the Court might have feen whe- 
taer he were the fame perfon who was bail. Wherefore, &c. — 
Fekver and Clench held, that the aftion was maintainable, in Crojac.667. 
itpxd it was Ihewn* that he procured it by fraud and covin, to de- p^ft/yjl.**-^^ 
«cive him, and although he knew that he was not the fame party ; 
fo there is an apparent /(7r/ in him ; and it is alledged, that he was the 
caufe of awarding the procefs againft him ; as where one procures 
2 taife fuit to be brought in another's name, or where one cajis a 
fnutJ'wn without caufe, or the like. Wherefore without argu- 
ment, abfentibui Popham and Gawdy, they adjudged it for the 
piaintiflF. 17. Edw, 3. pL 51. 20. Hen. 6. pL 31. ^ 24. 27. jijjl 
« Pkintljf' 75. See 8. Ellz. c. 2. 

Blake againft Stanley. Qa8ii3, 

A CTION TOR WORDS : " Thou art a coiner of falfe money ; Words aeiian* 
^ *' and I have money to fhcw which thou coinedft." After *^'^* 
nrdia it was moved, that the words were not aSionable ; for he 
doth not fay, that he coined money current in Englandy otherwifc 
it is not treafon, but mifprifion. — Sed non allocatur ; and adjudged 
for the plaintiff, abfentibus Popham and Gawdy. 

Stebbing againft Gofnal. Ca$e 14. 

Trinity 7erm^ 40. Lliz. Roll 108. or ^jS.Suff, 
A CTION upon the cafe, by a copyholder againft his lord, fup- It is a good cuf- 
pofing that he was a copyholder in fee, and that within the tom that copy, 
cunor is a cuftom, that every copyholder jfhall have the loppings of J^^fi^Jj^^" [^ 
^^ pMngers \ and becaufe'thc defendant had cut down two oaks /onpinzs o{ p^l^ 
Wng pollingersy whereby he loft the benefit of the loppings^ he rin^cri, and the 
brought this a£tion. The AtitnAznt^proteftando that there is not any i^'t* cannot cut 
hcii cuftom, for plea faith, that he cut down two oaks, being '[JT f^T^ d^""*^ 
pTm^er timber treci;, and left the loppings there for the plaintiff, prfve^hecopyl 
The plaintiff demurred, — Godfre vj^ir the plaintiff' moved ^ that holder of the 
!'- was not any plea ; for a copyholder hath not only an intercft in future hppings. 
i^e prcfent loppings, but in a future profit by the loppings, and »• Ro« Ab. io3. 
tierefore the lord ought not ,to cut them down to his prejudice, ciib Tcn^r'o. 
And he cited a cafe to be adjudged in this court, betwixt Garnon i.Mod.355.546* 
«^t/ Kible^ where tl)i< point was adjudged upon demurrer ; and that \>oxl%u 207. 
waftion upon l:c cafe was maiiitainable.-^And of that opinion *^s. 

were *• ^' ^^' 75'* 



%d 



againft 



Case ^s• 

A. being tenant 
for life with re- 
mainder to his 
f^iiit^ i(fi)C at 
th« time cf his 
dcatby and 
having iffue a ^ 
fon, levies a fine 
in fee, and dies 
within the five 
years. The 
ion cannot en> 
tcrj for the con- 
tingency upon 
which the re- 
ntal nder was to 
vcitwas dertroy- 
ed by the fine \ 
and^ for it did 
not happen till 
after thr dcicr- 
nination of the 
|>arriculareiiate. 
Ante, 4;9. > 
1. RoJl, 794. 
I. Co. 134. b. 
140. b. 

Cio. Car. 102. 
3. Co. 21. a. 



Case 26. 



An executor of 

hi I own wrong 
cannot retain 
any part of the 
deceaied*s goods 
tofatisfyhimieif. 
i.Ro.Ab. 921. 
5. Co. 30. a. 
^oor, 527. 
•Yclv. 137. 
I, Brownl. 103. 
Precr Ch. 179. 



Michaelmas Term, 40. and 41*. EIiz. In B. R. 

were Popham and Fenner. For a copyholder of inheritance hath 
an intereft in the loppings aftd boughs, as well as the lord in the 
timber. And if the lord cut down all the timber trees, then the 
copyholder fliall lofe all the profit which for the future might 
come unto him, and never afterwards fliould have any more lop- 
pings ; and it is a reafonable cuftom to have the loppings of tlie 
polisngersy which anciently have been continued. Wherefore, &c. 
-^Clench doubted ; becaufe that then the lord, who had intereft 
in the timber, ihould never by this means have any profit thereof, 
and thereby lofe his inheritance ; wherefore it is rcafon, that he 
might take the timber, and leave the loppings to the copyholder; 
otherwiie they fliould ijiever be cut down, and the timber would 
decay, which would be a prejudice to the commonw^ealth. — But 
notwithftanding, Popham and Fenner [abfcnte Gawdy) gave 
rule, that if other caufe were not fliewn, judgment fliould be en- 
tered for the plaintiff. 

Smith again ft Belay. 
A VOWR Y for a rent charge. Upon demurrer the cafe was, 
-^^ That Edward Jr da the grandfather made a feoffment to the 
ufe of Catherine his wife for life, remainder to Richard his fon for 
life, and after to his eldeft iflue which fliould be at the time of 
his death, remainder in fee to John Smith. Richard Ardes had iffue 
John his eldeft fon. Edward JrJcs the grandfather dies, Cathcrir.e 
lets it far years to Richard. Richard and John Smith made a teoff- 
inent, and levied a fine with w^arranty, and proclamation to Belay. 
Catherine Ardes dies ; within five ycars:after, Richard Ardes dies. Jolm^ 
being his cJdcft iffue at the time of hi5 death, enters as in his re- 
mainder : and. Whether the remainder were deftroyed by thefe afts, 
or, that he now might enter ? was the fole quellion. — Tanfield 
moved, that this being a contingent remainder, and being deftroycd 
by the feoffment and fine, before it happened and fell, that it never 
Ihould now takeeffcft : for, if there be any dilhirbance before that 
this future ufecomes into ejfcy it is dcflroyed for ever. And in this 
cafe upon the fame title, betwixt Terringham and Ardes^ this Couit 
was clear in opinion, that this future ufe wa^ dcftroyed, but that 
was upon evidence to a jurv. And in Chudleiglfs Cafe [a) this peint 
was refolved by all the Juftices accordingly. — And of tliis opinion 
w^as the whole Court. But becaufe there were none on the 
other fide, they would advife. 

Mortr, v>9- 546. 2. Roll. 216. Lit. Rep. 291. 2. Roll. Abr, 794. a. Co* 51. a. 
Oilb. Ufcs, 197. Comb, 467. Cro- Jac. 16S. Feartie, 249 250. 
fa) *i. Co. 113. to 140. Fearne, 248. 

Ireland againjl Coulter. 

Eafier Ternty 40. £/i2. Roll T^g^, or 339. 

r\EBT againft him as executor *to one Hunt. The defendant 
•*-^ pleads, that H/mt the teftator was bound in a ftatute of lool. 
and befides that he had not any affcts. And hereupon they were 
at iffue; and a fpecial verdift found, that the defendant was executor 
de fon tort demefne \ and that the teftator was indebted unto him, 
and that he retained divers goods to fatisfy that debt due unto 
himfelf; and over and above than to fatisfy the recognizance he 
had not in his hands, &c. Etji^ i^c. It was argued by Tak«- 
1. Saund. 102. 1. Mod. 208, 2. Med. 51. 1. Sid. 76. x. K.tb. 285. a«Vcrai47« 

12. Mod. 441, Swinb. 4^0^ 2. Term. Rcj>. 07. 537. 597. 



Kiichiclmas Term, 40. and 41* Eliz. In B. R. 631 

riFLD and GoLDSMiTH/or the plaintiff \ and by CoKE/e^r the de- Ibf-l anb 
pndm. The fole point was, Whether an executor de [on tort may ^ '».?**"i/' 
retain goods to fatisfy himfelf?— CoKE moved, that he well 
dight. The plaintiff, by this a£tion againft him, hath allowed !• ^^« «54' 
him to be rightful executor : wherefore the finding that he was |[|!^*',^j^g* ^^^ 
accutor^^ tort \% not material. And he, being allowed to be exe- ^^^^ xi%l%\i^ 
cBtor, may do all things as an executor, vi%. pay debts, or any 
other lawtul afts. And as he may do it to a llranger, fo he may 
ay himfelf. — Gawdy and Fenner were of his opinion. For as 
nc iliall be charged by realbn of his pofleflion, like rcafon it is 
he ihould be allowed all lawful afts ; and this is here a lawful aft : 
:i where a difleifor pays rent, they fhall be recouped in damages. 
So if one enters as guardian, who is not guardian, he ihall have 
ailowTince for all reafonable afts, as a lawful guardian fliould. 
And it might be, that in this cafe he did not know himfelf but 
that he was rightlul executor ; as if the teilator had firft made a 
ttilament, and thereby made him executor, and afterwards he 
made another teftament, and thereby made another executor, and 
tlic firft was proved, all lawful afts done by him are good ; and 
akhoogh the other teftament be afterwards found and proved, that 
ihall not defeat tlie lawful afts. — Popham and Clench e contra. 
For an executor de jon tort Ihall never have any benefit by his 
malfeafance. And it is not like to the cafe where a difleifor pays 
rent; for that is not any wrong or prejudice to a llranger, or to 
ai\y other, to pay that which is d*ue : but here this is prejudicial 
toaftranger; for evcrv one will be executor after the death of a 
teftator, and by that means be their own carvers, and pay them- 
kives before any other debtors, whereby great inconveniences 
would enfue. ^ Neither is this like to the cafe wh^re one enters 
as guardian, who is not guardian ; for there the infant may'have 
trcfoafs againft him, or lie jnay charge him as guardian : and if 
lie charge him as guardian, it is reafon he fliould then have allow- 
ance as guardian. Where one likewife is made executor by a former 
tti'^anicnt, aind afterwards another teftament is made, and therein 
aiother made executor, and the laft teftament not being known, 
x\\t firft is proved, and the executor pays debts unto himfelf; and 
thtn the fecond teftament is difcovcred and proved ; yet perad- 
\cnture the payment of the firft executor's debts fliall be allowed 
him, againft all ftrangers at the leaft ; for he had colour to, do it, 
i: executor by the firft teftament ; and he is to be allowed for all 
judicial afts which he did, he. But it is not fo here, where he 
takes upon him to be executor de fin tort et tejie demefne. And a 
precedent was cited, Eajier Terniy 32. Eliz. in C, B. that an 
executor dejhn tort might not retail* to fatisfy himfelf. Where- 
fore, &c. — Afterwards upon another day it was moved again; and *• ^^ Ab, 02*. 
THE Court faid, they were refolved, that an executor de [on tori 5* ^"^^ * 
dmefne cannot retain goods to fatisfy himfelf his own debt. And 
Popham faid, that divers of the Juftices at Serjeants Inn (to 
whom he had propounded tlic cafe) were of that opinion, and 
that they refolved to enter judgment for the plaintiff. But it was 
then fjLirmifed to the Court, that the defendant was dead, and 
thcreiiponaftayof judgment was prayed. But the Court would 
not ftay it upon fuch furmifc ; and, upoa the plaintifTs prayer, 
judgment was entered. 5. Co, 20. 

Sec 30, Car. 2, c. ft 



Vide&CpoA. 
itx. 

Ante, 465. 
Dyer, 200. Ray. 

Cass 28. 



by cheorowa 
flialtbecx. 



63ft Michaelmas Term, 40* and 41 • EUz* In B« R< 

CAis 17. Phillida Shackborough agaittji Biggins; 

An adoi grace A PPEAL of murder for the death of her hufband. The dc- 
will not pardon '^^ fendant pleaded not guilty ; and was found not guilty of the 
*• ^J*™*"8 »n murder, but guilty of the mart/laughter. The defendant prayed to 
con^ioirof ^ difchargcd, becaufe the general pardon had difchaigcd him, that 
manfla^bterin ^^ Aiould not be put to have his clergy, and this puniftiment is 
an appeal of not for the party plaintiff. — But it was ruled, that it was at the 
party's fuit, and that Ihe might well .pray it ; and fo flie did.-— 
Note, That Mufgrave*5 Cafe was here cited, and tlie record 
viewed, and no judgment herein. Vide pojl. 682. 
370. Hob. 294. 3. Peere Will. 453. i. Stra. 529.. 2. Hawk. 555, 

Brownlow againji Farr. 

Trinity Term, 39. Eliz. Roll 626. Line* 

In what manner 'T'RESPASS for the taking of two loads of wheat fct out for the 
patenugrantcd * ninth part of the grain in Hepworth. Upon not guilty pleaded, 
it was demurred upon the evidence. The cafe was. That king 
Edward the fixth was feifed in fee of the ninth fheaf of the corn 
and grain in Etworth^ alias Hepworth^ as parcel of the poffeflions 
of the abbey or Si, Leonard* s^ in the qoiinty of Tork^ and by letters 
patents under the great feal in 7. Ediv. 6. granted to Efiofe and 
Dozvnmafiy and to their heirs, ** totam illam medktaiem nome garba 
** bladorum et graiiorum vocat. THE NINTH sheaf, de^ ei in Ep- 
*• worth in comitate Ehorum modo vol nuper in tcnura five Qccupaiione 
** PP lilt dm. li'ard^ ac nupcr mQvaJierio St, Leonard in comitat, Eborum^ 
^^ d'ljfohit^fpenantr and under this patent the plaintiff claimed 
the entire ninth fheaf; for in truth all was in the tenure of fVard 
by a Jeafe made 36. Hen. 8. under rent. But Epnvorth was not in 
the county of Tork^ but in the county of Lincoln . and, Whether 
upon the patent the entire ninth fheaf pafled or not ? was the 
queflion, by reafon of the ftatute of mif-recital made 7. Edw, 6. 
c. 3. (fl).— It was argued by RoPER^ir the plaintiff j that all pafled; 
for the quantity being miftaken, it is exprefsly aided by the letter 
of the feature ; and if not, yet by the intent of the flatute.— But 
Henry Yelverton e contra. As to the mifprifion of the county 
where Epworth lay, it was agreed on both fides not to be material ; 
for that is holpen by the ftatute. — And fo held the Juftices Pop- 
ham and Clench, cateris Jt/Jlitiariis ahfentibus, — As to the prin- 
cipal matter, Poph am faid, that the patent could not convey more 
than the moiety, if it could convey that: for when the king was 
deceived in his grant (^), it was not the intention of the makers of 
h) s. Wtn. 6. ^^^ ftatute tq help that grant ; as if the king grants the moiety of 
//. 20. Bro. * two acres, it is not i-eafon that the patent fhould be conftrucd, 
«* fatuttr 15. that he fhould have two acres : and that is the difference as to 
<• Co. 13. thequantity, where the certainty is plain. As•\^ here the king grants 
two acres, called the manor of D, whereas ,the manor contains an 
hundred acres, it is a good grant of the whole manor, and of all 
the acres : but if he had granted all his manor of Z>. containing 
ten acres, whereas it contained twenty acres, nothing had pafled 
by the common law ; but it is aided by the ftatute. There is alfo 
a difference as to the quality and nature of the thing. As where 
kiijgii&wj' the eighth granted to Sir Thomas Moor ** fotam turberiam 
(«} Expired, Set a. Ruff bead's ftat. (464.} 

^* Juam 



Michaelmas Term, 40. and 41. Eliz. InB, R, 633 

• [nam In D." where a former patentee, having fuch a grant, had Buowklow 

before converted part thereof into arable land, and part into pafturei *?*'»/* 

thal&r 7homas Moor Ihould have but that only which \S'as then /«r- f a«^. 

hmj. And the ftatute doth not remedy fuch a grant. For turbary i s a 

f xo6t pamabUy which may be in one place and not in another after 

coaveriion. But if it were a great moor, and after fuch converiidin 

of part into arable or palhire, the king had granted totam moram 

/wiw, it had been otherwife ; for that is provided for by the faid 

ftatote : and if he had granted all his eftovers in fuch a wood, 

whereas he had not any eftovers, but a coppice in the faid wood, 

he was not remedied by this ftatute. And if a common per • 2.Bac.Abr.6(9« 

iba bad granted an acre called 32^ Two jicres^ one acre only had 

palfcd: a fortiori in tlie king's cafe. Wherefore it was adjudged 

for the pUiutiffy with tiie allent of Clench, Cdttms Jujiitiarils 

otfcntihus. 

Barfdale agatnft Smith. Casi 29. 

^TRESPASS by a vicar, for taking two loads of hay and carry- An«ndowit)ent 
* ing them aWay. The defendant pleads, that the place where, **>« »^ v*"/ 
&c. is within the parifh of Maidflone^ whereof he is parfon impar^ fliaii hwc w/mv 
I'mue^ and it was fet out for tithes ; and that he ufcd to have de- /tijp2rT;«ww 
cMiai garbarum et f<tm. The plaintiff replies, and Ihews a com- ^arAttr»ji», fh.)ll 
portion in the time of king Henry the third, and that the vicar- beconftmcd la 
age was then endowed ; which was, that the vicar fhould have®**"^^^> 
mnuttts dedrnas^ et totam Jecimam garbarum in fVJtworth (which was Allen, ^o. 
an hamlet within the faid parifh, and die place where, &c, and StHe$,iDi. 108, 
was parcel of that hamlet) ; and that at all times whereof, &c. he Cg^Llf^S^'^* 
and his predeceiTors (vicar« there) had ufed to have the tithe of ^' ' ' 
hay there. Wherefore, &c. And it was hereupon demurred.— 
Tanfield. By this prcfcription he cannot have hay; iov garba 
i$ always corn, and therefore this prcfcription cannot ftand with 
the compoiition.— Coke i contra. For as tlie ufage hath been, fo 
it Ihall be expounded. For it was adjudged in the exchequer, 
where a patent was made by king John to one, and his fucceffors, 
^\\i bccaiife Braihn faith, that anciently " fuccejjor'* was taken for 
** hitres^** and that always fincc it had ufcd to defcend jure ha-i 
Tfditario^ it was adjudged that the heir Ihould have it by that 
charter. — All the Court here refolved accordingly, in regard 
it was an ancient charter, and conftantly had been ufed to ex-* 
lend to hay, the word garba might well extend tliereto; al- 
though at tnis day it is commonly ufed in anotlier fcnfc, Where-^ 
fore It was adjudged for tli^ plaintiff. 

Broom againfi Hore. c^" 3«» 

r\EBT for rent. The ca% was, That Sir Chrifiopher Brom let if a kffeoaf- 
^ land to Hore, rendering rent, who let to H'VigU [worth the f 5" PJ*^ ?J ^*»* 
fourth part of an acre; and afterwards Sir Cbrijiapher A-^om grant- g;a„t2r^f fhe* 
cd the reverfion to Georgf Broom, now plaintiff; and he brought revcrfion niaii 
debt againft Hore for the intire rent. — Tak field moved, that have debiagainiV 
the aftion l»y not ; for when the leffoo granted his eftatc in part^ *»»»«, ^'^ ^« 
and the leffor granted all the roverfion of the entire, the privity "^^^^ J^J^' 
thereby for that part which waj granted over, was ntterly deftroy- ^ co. a4.'a. ' 

Lit. Rep. 53. Pyer, 4, CfO. Jac. 4U. i. SaunJ. 284- a. Lev. 23U 

np. wu. JPAUT xu Uu cd. 



634 



Michaelmas Term, 40. and 41. Eliz, In B. R. 



Broom 
sgaittft 

HOKS. 



Foft, 657. 
Cowpcr, 76^^, 
Pougl. i?4. 



CArt 3X* 



If a Arant^er 
purchafeajudK- 
incnt, the party 
in execution , 
may by audita 
futnla plead 



ed, and no a£lion as to that paxt lies againft the firft leflee ; as m 
the cafe of Humble v. Glover ^ adjudged in this court ; and llie 
aftion being gone in part, is gone for the whole. — Stephens l 
contra. Becaufe the entire eftate remained in part of the land, and 
fo the entire privity and adion remains for the whole againft the 
firft leflee: and fo is 24., Hen. S. Ry/dens Cafe^ and 2,j1Jf,^2. 
— And ALL THE Court was of that opinion. — It was afterwards 
mpvcd by Tanfield, that here was a fufpenfion of the entire 
rent ; for it is alledged and confeflcd, that the plaintiflF entered 
into that part let to ffrigleftvorth^ ^nd then that is a fufpenfion of 
the entire rent. — But the Court faid, that this entry, were it 
lawful or tortious, being by the command of fVriglefwortbf vefted 
all in M^rlglefworth ; and he was but fervant to ff^riglefworth^ and 
nothing thereby vefted in the plaintiff ; and therefore here is not 
any poiieffion in him. Wherefore it was adjudged for the plaintiff. 
3. Co. 24. 

Malyns againft Sir John Hawkins. 

Hilary Term, 38. Elix. Roll 6-^6. 

A UDITA QUERELA to avoid an execution of 500I. upon z, 
-^ judgment in this court. And furmifeth, that the faid 500I. 
was paid to Sir John Hawkins after the judgment in difcharge of 
the judgment ; and the audita querela was awarded out of the 
chancery, direftcd'^o the Juftices of this court, &c. Whereupon 
payment of it; z fcire facias was av;arded; and the ihcrifF returned, that Sir John 
find that* hc*^ //mL'i/>r5 was dead. Whereupon it was furmifed to the Court, 
inoncywas paid, xi^^t. Dame Hawkins was his executrix ; and T^fcire facias was award- 
he (hall be di{- ed againft her, which was grounded upon this audita querela^ and 
charged, al- fhe appeared upon it, and pleaded, that the aforcfaid 500I. was 
UioBgh they alfo ^^^ p^jj jj^ difchargc of the judgment. Thereupon they were at 

find that It was .^ ^ , • ? , "^ » -/i 1 r ^ r t \^ c 

paidforthrpur- i»l^^J ¥^^ ^^ "^^ found, quod ilia 500/. fucrunt plutit by Sir 
chafe of it. Horacio Palevizino to Sir John Hawkins^ to have the judgment 
Ante, 41. 140. afligned over unto him. Etji^ &c, — The opinion of the whole 
»09« Court was, that when the jury found, quod ilia ^poLfolutafue- 

i.Ro.Abr.310. runty that fufiiceth for the plaintiff's iffue ; and what was found 
».Ro.Abr.7o6. more, is but furplufage ; and that an audita querela well lies upon 
c7* ^ac* 2*^' ^^^^ raattcnVi/tf// to difcharge the execution \ for if it be true that 
fo, jac. 29. ^^^^ ^^^j ^^^^ p^. J ^^^ ^j^^ judgment, it is not reafon he (hould be 

ftayed in execution for it. And although it be found, that a 
fttanger prjd it, yet when it is found, quod ilia yyol. Joluta fwruntj 
it is then to" be intended the fame fum for which the judgment 
was obtained : and thereupon the judgment was difcharged, and 
rule given, that judgment (hould be entered accordingly. 

Tanfirld at another day moved, tliatthis audita querela being 
an original out of the chancery, the party being returned mortuus, 
there being but one party named therein, it is totally abated; and 
the fcire facias thereupon awarded is void, and without warrant. 
Wherefore, &c. — Doderidge e contra. For this audita querela h 
riff return "hat "^^ '^ nature of any writ ; but it is a commiffion for tlic Juftices 
the party is to cb1\ vhe parties, and to hear the complaint, and to do right, 
dead, the nujitm and there is not any party certain thereto : fo, although the tefta- 
yi.ere/u fliali i- ^^^ ]^ j^^j^ ^1^^ cxecutor may well be called by a fcire facias ; and 
ciib E ^.^}^S rnade a partv, may be examined ; and tl^is fuit is in ca^c of 

is8-' *' *^^' ^^^^ P^^^y ^^^^ ^^ ^" prifon, ancf therefore ihail be favoured in la^j 

2«^^und* 144, 1. Saik. 92. 



If on zfcirt 
facias in an 
Audita fugrt/a 
fiwn chancery 
to the ki'g's 
bench, the (he- 



and 



Michaelmas Term, 40. and 41. Eliz, In B. R. ^35 

and not qiaaflicd, if any one be made party to the examination. Malyn« 
And to that purpofe vide 3. Hen, 7. pi. I. 2. Rich. ^. pi. i, H/f^JlY^.,. 
u.Rkh,'2. •• £r^^" 638. where a writ of ^wrfi/fl^K^r^/tf was Drought 
againft two, and one of them dies, it was ruled, that for Ais ^^^^^ ^^^ 
caufe the writ would remain and not abate. So 35. Heti, 6. 
fii^. if two be plaintiffs, and tiie one be non-fuited, or releafct 
it fliall not prejudice his companion, becaufe it is fucd for the 
cafe of both. And 13. Edw. 3. ///. '* Judh. ^uer''- 26. this writ 
was brought to avoid a ftatute for the nonage of thei:onufor, Sec. 
where the conufee was returned mortuus \. yct the conufor was 
difchargcd, and there was not any doubt that the writ (liouid 
abate. By this means alfo another mifchief might enfue, that the 
party always might remain in prifon : for it may be, whereas one 
is returned mortuus at one time, fo another at another time might 
be returned mortuuSy/aivA fo infinite, h fcire facias alfo is in 
nature of an audita querela^ when one is in execution, for it Ihall 
comprehend all tlie matter. Wherefore, &c. — ^"Fanfield e centra, 
I agree with the books, that in an atddita querela againft two, if 
the one dies, as long as there be any party alive who can be party 
to tlic examination, the writ (hall not abate, nor a new audita 
querela be brought : but there is not any book, that, where there is 
but one party, and he dies, faith the writ Ihall ftand. But 
the book of 13. Edw. 3. is grounded upon another reafon, for 
that better expounds 18. Edw. 3. pi. 10. which is the fame cafe ; 
where an infant brought an audtta querela for his infancy, and his 
age was infpefted, although -the parties were returned w^r/«:/j, 
yet no new audita querela (hould be awarded ; for his nonage 
being adjudged, none can contra'dift it, nor have any plea thereto ; 
and therefore it would be in vain to make any new party thereto ; 
wherefore the party was difcharged. And whereas it hath beea 
faid, that 7L fcire facias might be brought in nature of ah audita 
querela^ and there needs not any new audita querela ^ true it is ; 
but then it is merely grounded upon a record here, whioh com- 
prehends all the matter : but it is not fo here, for this is grounded 
upon the original writ; which being abated, the fcire facias 
awarded thereupon is ill. Wherefore, &c. — Gawdy held, that 
this was but a commiffion, which Ihall not abate by death ; and is 
like to a mittimus upon ^ fine, 14. Hen. 7. and there is not aof 
party here, but a commandment, qriod voaitis partibus juftice bo 
done. Wherefore, &c. — But all the other Justices againft it ; 
for it is an original awarded out of the chancery , and if tliQ 
parties be dead, the writ (hall abate, and the commiffion is deter-* 
mined. And they agreed to the cafes, where there are two parties 
defendants, and the one dies, that there the writ Ihall not abate; and 
fo to the cafe of an infant, for the rcafou abovefaid. Whereupon 
it was adjudged, that the writ fhould abate, and that a new audita 
querela fhould be purfued, And fa it was, and the party therc-t 
upon bailed. 

The Lord Barkley againji tJicCountefs of Warwick. ^« 3** 

P'RROR of a judgment in the common pleas, in a writ of par- fSi^f aw if 

titJon, Upon the firft judgment quid partitiofiat^ before tlie aUowabkbsfor^ 
return thereof, and the fecond judgment j«^i/>flrf/>w ^A/Zri ;ff the fccondjudg* 
according to the co\ufe of this writ, a writ of error was brought, "*^^ *• *<«"* 

pl«ed in a writ of partition ?^S. C. i. RolL Abr. 750. Muor, 643. Noy, 71. Cfo. Tic 994. 3 56. 
Y.^ttlft, 104, 119. 2. RclL R9p. }>;, 11. Co. J9. a.tojn. 6S. 3. Buift. j,,. '5%^; JL, 
W««*i.»|», },Ba«.Abr,uz, Vux H J^ J 



636 Michaelmas Term, 40. and 41. Eliz, In B. R. 

B>»RKt«T and the error afligned. An4 it was alledgcd, that there was not 

Warwick. ^^^^ pcrfcft judgment yet given, until the fecond judgment, and 

therefore the writ lay not : but in divers cafes where there arc two 

Co. Lit. 168 a. judgments, where the firft is the principal, there error may lie 

11. Co. 40. b. before the fecond. As where an aflifc or an eje^ione firrms is 

brought, where the land is the principal, if judgment be given 

for it, although dam^es ars to be rbcovcred, yet teforc a writ of 

enquiry for them, error lies ; becaufc tlie damages are but acceflbry. 

P^^ ^ But in trcipafs, or in ^n aft ion upon the cafe, where the damages 

xx.Ca^b. ^^ ^^ prmcipal; although the judgment be, quid recupertt, ytt 

until damages be enqiiired, and judgment tlicreupon, no error 

lies J as it was agreed m RuffiJ and Prat's Cafcy So in 21. Edw, 3, 

in the cafe of a^compt, until the fecond judgment no writ of 

Foft, 643, errorlics ; for the plaintiff might be non-fuited before the fecond 

judgment given ; as i. Hen. 7. pU 2. is. And fo it was adjudged 

ll.EIiz. in Hmdinz V. Pine, So 7, Rich, 2. in " Formedon^" where 

the tenaat was oulted of aid, error lies not until the judgment of 

the principal.— And fo held all the Court here, that the fecond 

judgment in this cafe is the principal, and before that death {hd\\ 

abate the writ. And they agreed the differences in the cafes^ 

where the damages ard but acceflbry, &c, But hecaufe it was a 

new cafe, they would advife. £t adjaurnatur. 

Note. Brownlow the prathonetary <old me, that it had been 
adjudged in the common pleas, that the death after die firft judg- 
ment fhall not abate it. For where the plaintiff died after tlie firft 
writ, the heir had z fare facias upon that judgment, and it was held 
tQ lie maintainable : and if fo, th^ firft judgment is the principal. 
See 8.&9. WilJ. 3. c. 31. 

^^jj Bulkin alias Living againji Edmunds, 

Ante^ 415- 

kafb foTrh T^EBT in London upon a leafe for years, fuppofed to be made ir^ 
by thcliifignec* London^ of tithes in if. in the county of Kenty by tlie alfignee 

of 9 rcvcrfion of a reverfion againft the affignee of a term. After verdift, upon 
againfttheaf- z nihil debet "fltzAtA^ and found for the plaintiff, it was moved ir^ 
fignccof atmn, arr^ft of judgment, for that this aftion was brought in London. 
whcrtthToon- ^^^ ^^ '^ "^^ grounded upon any privity of contraft, for both 
traaufuppofr the parties are ftrangers to it; but by realon of the occupying of 
ed to have been the land, and tlic eftate of either of them therein. And although 
made, and not pcradve;iture tlie aftion at the firft might well have been brought 
^^s^d^^t m Londqnhy the ieffor, for the contraft made there, yet it cannot 
iC^.X>;^Ti8. be fp here. Wherefore, &c. — Altham and Brock moved /or 
^.4. Miffir4. the defendant^ that the aftion lies not. — Scdnon allocatur. For tlie 
Amc, saS.4i||- privity of the contraft is conveyed with the cftatc. But for want 
Sl^* of privity, debt lies not againft'the firft Icflee, becaufe he was not 

f. Sid.26tf. privy in eftate. But the contraft is always triable where it was 
Dyer, 40, made (vi%, m London)^ and therefore the aftion there is well main* 
J. Saund. 238. ^aiii^ble. And it was adjudged for the plaintiff, 

^^»» 34 Scambler againfi Waters. 

An infint can- /\ CTION upon the cafe, for difturbing him to execute tlie officq 
Tthlfofficr"f ^^ fteward of the courts, and to take the profits, &c. and 
\^I^qT^^ ftiews all his title in the declaration. Upon not guilty pleaded, 

manor, except txtrctndum ptr ft aut Jtptttatum,'—! , Roll. Abr. 7^1. 2. Roll. Abr. 153. Co. lit. 3. b. 
note fv] i7». 10. Co. 6f. b. Jonei, 510. 2. JoQW, 126. Cjp. Car. 16. 50. 159. 279. 556. 63^. 
Al«rch. 43. £9tu l^t 74< Py^r^ 80. in «r«f r. 



Michaelmas Term, 4b* and 41. Eliz. In B. R» 637 

t fpccial verdtft was found, That from time whereof, &c. Scambur 
there was a fteward of the courts of the bifhop of Norwich^ a^ainfi 
who ufed to have 10 1. fee by the year, as alfo an under-fteward, Waters. 
v/ho had 4I. fee per annum^ l^c. and that the Duke of Norfolk was Cowp. 126. 
high-fteward, and died ; and tliat the bifhop of JV^w/Vi? granted 
the office of iinder-ftewardlhip to Nicholas Harc^ and two of his 
foas for their lives ; that Nicholas Hare and one of his fons died, 
and tliat the youngeft fon, being within age, granted it to fVatcrs 
the defendant ; and that Scambler bilhop of Norwich granted both 
thofe offices to the plaintiff, with the fees ; and that the defendant 
difturbed him. — It was moved by Daniel, yir/V^«(, and by Tan- 
FIELD, that this verdid is found for the plaintiff. For being 
found, that it was the cuflom that be might make an under- 
fVeward, and he granted the office to three, that cannot be well 
maintained by the cuilom. It is alfo againft reafon, that the 
bifhop having the grant of the higli-flewardfhip, that he fhould 
appoint the tinder-ftewardfhip ; for it is tlie office and duty of the 
high-fteward. An infant alfo cannot be an officer ; for he cannot 
be a judge in a court, as a fleward is In the leet ; a multo fortiori he (^j in March, 
cannot afiign over the office : for an infant cannot be bailiff, nor 43. Mr. juufco 
attorney, for this caufe; for he is not to be conceived to be of J^«f ^^^ms 
difcrction to execute it ; much lefs can he execute the office of a •Jj^j^^*!!',''* 
judge. Wherefore, 8cc.— Popham and Fenner held, tliat an caff,'tha"lft'in* 
infant cannot be a fteward ; for he cannot by intendment execute fant'u capable 
it, much lefs may be affign it over. And Popham faid^ that it ofa fiewardOiip 
was ufual for bifhops to appoint great perfons to be ftewards, and l"!^^*^*^^"* 
to appoint their under-ftewards alfo. But it would be hard to Lit.Tb^^and 
maintain it, unlefs they be ancient and diftind offices4 Et ad'^ Mr. Hargrave*t 
Joiermtur {a) • notes 4 ft 5. 

Ards cigainjl Watkin • ' Cai 1 35. 

Trini^ Term, 40. £//«» Roll • 

TTPON demurrer the cafe was, Lefiie for thirty jtint of a Adevifcmaybf 
^ parcel of land called Shortw&ody lets it for twenty-eight years, ©^ ?«« of • r«it 
tendering 34 h rent per annum] and after devifeth aSl. parcel of^^^^^ 
that rent to his three fons, feverally to every of them a third part. thfwTa^^St 
One of them brings debt for his part of the rent : and, Whether lie, by each «ie- 
this aftion lay, or not ? was the qucftion. — It was argued by ^if« ^w his 
RvDCLEY/^r the plaintiffs and by NlCHOLs/or the defendant.-^ Aareofthft 
Gawdy and F«nner held, that the aftion well lay ; for there is "JJjJI^ ^ . 
no doubt but that rent may be devifed, and be divided from the Foft.'6ex. 
teverfion ; fpr it is not merely a thing in aftion, but auajlvdi in* 
heriuncc, ^ Knowles* Cafe is (a) ; and in 24. Hen. 8. RjfdaCs '-IUjU. Abr. 
^fi[b). If leflce grants over all his term m part of the tand, yet ^^'J^*^*' 
it is chargeable in an aftion with the entire rent ; for he by nis co. ut.*Mo. 
aft cannot ipporiion it. And by the grant of part the leflte is not siefn. 367. 
tompcllable to attorn ; for then he fhouId be liable to two tftions, 3* ^om* Dij. t* 
or two diftrefles. But the devife is qnafi an aft of law, which 4-B«c.Abr. 
ftiall mure without attornment, and (hall make a fufficicnt privity, \^l^ , ^^ 
and fo it may be well apportioned by this means. Wherefore, cowp.ai^6*6«. 
&c. — Popham and Clench k contra- For as the leflee by his 
own aft fhall not divide the leflor's contraft, nor apportion his 
adion ; fo likcwife the law favours the Icflec, that the aft of the Icflbr 

{•) Dyer, 5. b. (*; Bjter, 4. b^ 

U u 5 IhaU 



638 Michaelmas Term, 40. and 41. Ehz. In B. R. 

Aunt fhall not charge him with divers adlions, or double diftrefles, hut 
^^j/i».i^ upon his voluntary attornment : and the contraft being entfrc 
cannot be apportioned. — But Poph am agreed, that the rent was 
(a) It was agreed Well devifablc, and by that means feverablc from the reverfion. 
b/ ehr-ce Juf- A^d although a thing in aftion cannot be transferred over, nor 
Taion^^wcUU • ^ devifed ; yet a contraft, which arifeth from an intereft in land, 
ind^thCTTforc^ * or which is an intereft, maybe well transferred over. Wherc- 
judgmcnt was fore, &c. — jidjournatur {a) . 
entered for the plaintiff, poll. 651, 65%. * 

Case 36. Harvey againft Wrot. 

Hilary Term, 35. Elix. Roll 381 • 
ll^^^^lh T7RROR of a judgment in dower. For that the judgment wa» 
defauiraMinft againft him by default before any appearance, whereas he was 

m infant is not an infant. And it was thereupon demurred. — ^The Court held 
error. jt to be no error. For if infants would never appear, there would 

Ante, 3c8. 331. never be any recovery in dower. And Popham faid, that the 
557- 5 7« greater part of the Juftices in Serjeants-Inn were of his opinion. 

Cro. jac. III. (Jawdy was abfcnt. Et ^Jourmtur, — It was afterwards moved 
A!aor, 465. again, in Hilary Tcrm^ 41. Ellx, and rule was given to affirm 
2. Browni 118. the judgment : but it was after\\'^ard reverfcd for the dcfed of war- 

2. Leon. 59. 89. rant of attorney. 

3. Bac. Ab.154. 

CAsr 37. Holiday againft Hicks. 

E after Term, 40. Eliz, Roll 336. 

Trovcrwiiinot npROVER and Conversion of twenty-five pounds. The dc^ 

••^fnft hTs*^ '^ fcndant pleaded not guilt}- ; and the jury found a fpecial 

van "for min!y ^'^^<ii^» ^bat the defendant, being fervant and faftorto the plain- 

^hichhehasrc- tiff, fold twcnty quarters of his matter's com for 25I. and, rc- 

cclTfd forhts ceiving it, converted it to his own ufe. 

^»^^^'^*^ goods. Stephens moved /or the defendant^ that this verdift is found 
nie, 14. £^^ i^jj^^ Yq^ xh\^ 25I. was never in his mafter's pofleffion, nor 

Noy, 12; hJ<; money ; and this aftion lay not, but rather an accompt. This 

6aik. 289. ^Yfo is money out of any bag. Wherefore, &c. 

Bull. n!i\37. Bur Fknner held, that it was found for the plaintiff: for the 
pofleifion of the fervant is the matter's pofleffion, and it is as if 
he ah\^ys had it in poficilion. And it hath been adjudged, that 

(n\ It ad ^^^^ fervant being robbed, the matter may well bring the adJon. 

judgedfor^he ^nd that was Lord Rich's Ca/e.-^ChENCH doubted.— £/ ad- 

plainriff, port, journ^itnr {a^ , 

661* But the judgmpnr was afterwards revcrfed on a writ of errori poft. 746* 

Casi 38. " ■ . Redfton againjl Eliot. 

•* Thou art 1 A CTTON for thefe words: <* Thou art a rebel, and all that 

" rebel, and all -^^ " keep thee compaiiv are rebels, and thou art not the queen*^ 

••that keep thee *' friend." After verd'ift it w-as moved, that the adtion lay not 

** company j' foj. ^^itk words. Fof as to the firft words, *• Thou art a rebel," 

word,! i^ ^'^ adjudged here .in iVelW Cafe, that an aftion lies not And 

AJite, 611.602. i6£liz. in the common pleas, between Bvjlard and Pmsy it wa5 

adjudged, that for faying, '' Thou art not the ^queen's friend," no 

I. -Roll. Abr. aftioii lay : wherefore, they being coupled together, tlie aftion lies 

TBac.Abr ^^^* — ^'^^'NER and Clench held, that the words were aftion- 

4i'> 511. ' »b^^ • ^o^ although to fay, " Thou art a rebel," will not bear an 

aftion of itfelf, yet being conjoined with the other words, " all that 

*' keep thee company," they are thereby much aggravated, and 

ihcWs his intent. * But, c^^tols JuJlUiariu abfeatibnst adjournatur. 



Michaelmas Term, 40. and 41 • Eliz. In B. R. 639 

Tyrrel againft Bafli. Cah 39. 

TRESPASS vl et armisi for taking his goods. The cafe was, a flicriff may 
•* That a IhcrifF took goods by ^ fieri facias^ and before execution *>"nj trcfpafs 
done by fale, the defendant took them again, and he brings ^"^^^-^"^^^^^^^^ 
pafs : and> Whether it lies, becaufe he had not any property ? ^.y-^^ ukm^ 
l^idi 1 1, Hen. 4. pL 23. and 7. Edw. 6. Stringfelhvf s Cafe, — Fenner by the dcfcn- 
bcing only in court, faid, that he had conferred thereof witli Z«Fr</ <iant before faic. 
C. J, Anderson and Peri am ; and they held clearly, that the '• ^'^;,'^^^* 
adion well lay. Wherefore he commanded judgment to be ^\^ * ^^'' 
catered for the plaintiff. Saik. ir. 

a.Saund.4ix. i. Vent. 52. 

Refton againft Pomfreift. Casi 40. 

trinity I'erm, 40. EUz» Roll 1 125. 




•* hatli had a child,^as that you fit there; for Ihe was fcnjt mage. 
*' away witli child, and if fhe had pot a child, fhe hath made it 4. Co 16. b. 
" away :" and allcdges, that by reafon of thefc words, fhe lofl her ^' ^o- Ab. 35. 
marriage. The defendant demurred. — And tliereupo'n adjudged 3* ^'|J^- 4?- 
for the plaintiff. ^^^ ^'' * ^ 

I. Lev. 261. X. Vent. 4. z. Com. Dig. x85. 4. bac. Abr. 501. 

Hemfley againft Price, Case 41. 

Hilary Term, ^o, Eliz. Roll 1 03. 
17 JECTIONE FIRM-^ of a leafe of Crabriel Armftrong. ITpon A dcvlfcis made 
•*-' a fpecial verdia the cafe was. That ^' Hejiry Stapietoriy being °* ^-^"^^ '"/o- 
" fcifcd in fee of the manor of Rempflone^ and of the advowfon of "fv/J^^hlch by 
^^ Rempftone in fee, the manor being holden in focagc, arid the 3^. //'^,.8. c.i, 
"advowfon by knight fervice in capite, devifed all his lands to is void as to a * 
** Elizabeth his wife for her life, remainder to Faith his daughter fb'''<^p'*rt, 'j be 
" in tail, remainder to tlic eldefl fon of mUiam his brother in *^^''^^;"^''7„^^^ 
" tail,, remainder to his coufin fVilUam Stapleton ia tail, with di- fii the Jaiuls,^ 
** vers remainders over : remainder to the right heirs of Henry the ieafcs them ail, 
•* dcvifor. Henry dies, Elizabeth enters, and lets all the faid lands and the Iciree 
^' X.Q JackfoHy who occupied them entire for three years, /v,;/^ cijoys them en- 
" dies without iffue. Elizabeth dies. John Stapleton fon and heir ^j^^;^' ^,^^\^^ 
•* of William Stapleton enters ; and that Gertrude Teo was coufin iry, letting, 
" and heir to Faith^ and that fhe levied a fine to Gabriel Armftrong of and enjoyment, 
*' the manor of Rempftone ; which Gabriel Armftrong^ by deed enrolled S»'»"» » poffcf- 
•* in chancery, bargained and fold the land to Edward Turvilc for ^'°;',,^oni'''rd 
** life, remainder to the queen in fee, upon condition, if he paid 20s. doer n"t^d^ 
** to Edward Turvile Awxmg his life, or, after his death, to the queen prive the heir 
** or her fucceffors at the receipt of the exechequer, that the bar- of hij third* 
**gain and fale fhould be void, and that tlie faid Gabriel Arm- P'^'Jj-' 
''Jhong might re-enter." And they farther found, ** that Gabriel \^ ll^^]^^ \ 
** Armftrong paid the 20s. to Edward Tnrvile^ and entered, and de* j. rq, aL. h^^ \ 
** mifcd three acres to the plaintiff, who entered : and that tlic dc- 1. Burr. 6o« j 

" fcndant, by the command of J. StapUion, ejcaed him out of the I 

"three acres. Et ft upon all this matter, &c/' — The first 
POINT was, If this devifc being void for a third part (fo as the 
dcvifee ought to have had but two parts, and the third cart hav^ 
dcfccnded), the dcvifee entering generally, and lettins: all; and the 
kflce occupying all, whether this fhall gain the poficHion of the 

U u 4 entire 



64^ ' Micliaclmas Term, 40. and 41. Eliz. In B. R* 

HiMstET entire, and diveft it out of the heir ; fo as, at the time of the fine 
^lainjl levied* he had not any thing, and fo nothing paflcd thereby to 
P»ic£. Gabriel Arm/hon^ thp leflbr?— Secondly, Admitting the fine were 

f;ood for the third part, when Gabriel Jrmjirong bargained and 
old it to Edward Turvile for life, remainder to the queen in fee, 
-upon condition, &c. ; whether by the payment of the 20s. to 
Mdward Turvile it Ihall diveft the whole cftate, or no part thereof, 
without office, or monjirans dc droit ? — Coke Attorney Getter aU and 
Crew, /or the plaintiff . That by none of thefe afts the heir was 
out of pofleffion ; but that his fine was good. For, First, By 
the devife the heir is to be' tenant in common witli the devifce; 
Co. Ut. 199, and if one tenant in common enters into the entire land, his pof- 
feffion Ihall be adjudged the poflellion of his companion alfo ; and 
he Ihall not be put out of pofleffion. And Crew faid, that in 
26. Eli%» in the common plcSis, in Polhrd v. Allcoci^W\\^ point 
was in queftion, and ruled, That where the dcvifee enters into 
tiic whole, and the heir without entry levies a fine of his 
third part to a ftranger, it was ^ood; for it never was out of 
his poflclEon : and if the entry did hot gain the poflellion, tlic 
leafe for years did not alter it ; for nothing paflTed thereby, but 
what might lawfully pafs, no more than in i6. Hen. 8. pU 9. 
Where a tenant in'common levied a fine of the whole land, the 
moiety only paflcd, for he could not gain the entire pofleffion. 
But it he had adually expelled his companion, it had been a dif- 
f&ifin in deed : or if he bad made a feoiFment, or a leafe for life of 
the entire land, it had been a difleifin of the whole, and it bad all 
paired : and when at firft he entered generally, the law will not 
impute any tort therein, but that he entered as lawfully as he 
might ; and he cannot afterwards by any words diveft his corn- 
Co. Uc. ^74. a. panion's pofleflion. But Coke faid, that if afterwards he had 
made a feoffment of the entire, tliat had cxprefled his firft intent 
to be to enter into the entire, and to give poirelfion of the whole. 
—As to the second point they held, that by this payment 
'•• ^^' 4*»> the entire eftate is divefted without office. For when tlie free- 
hold is in a common perfon, and the remainder only in the queen, 
by the limitation of the party and not by any fettled intcreft, it 
'may well be divefted out of the guecn by matter of fa£l, and in 
Cc. Lit. 241. a, many cafes by matter in law ; as in Nichols Cafc^ Ploivden, 477. by 
a condition performed for the increafe of the eftate : fo there 
JoL 483. by a remitter. So if a difleifor makes a leafe for life, re- 
mainder to the queen, yet the difliifee may enter, or have an aifife 
againll the tenant for life, and thereby diveft the eftate from the 

?[uecn: and as tltc eftate commenced by the aft of the party, 
by his aft it may be defeated. And 49. Edw. 3. pL 16. is, tliat 
s.c». 53,1 if one devife that his executors Ihould fell his land, and dies 
without heir, the land Ihould efchcat to the king ; yet the exe- 
cutors may fell, and tliereby diveft it out of the king. Where- 
fore, &c. — Tanfield and Geo. Croke en the other fide. 
This entering generally, although he claims not the whole byex- 
ij.nrfs words, )ct entering by force of the devife, which was of 
the whole, is, and amounts to, an exprefs claim of tlie whole; 
and where two have title defccndcd unto them as co-parcencrs, 
#r a title devolves, or comes to two, as tenants in common,- 
if the one enters firft and claims all, before the other hath 

cnlcrcdy 



Michaelmas Temi, 46 and 41, Elii. In B. R. 64.1 

tntercdf that fhall gain the pofTeflion of the entire eftate ; but \l Hi msliV 
they were once in pofleflion, then the claim o^ the one only, or ^^^''5^ 
the occupying of the one only, ftiall not ouft his companion. **■"«• 
And therefore Lin. 160. if the one coparcener enters claiming the 
entirety, and makes a feoffment with warranty, that is a lineal 
Warranty for the one moiety, and collateral for the other ; and if 
the fcoftment be a difleifin, and not before, it (hall then be a war- ^^ 

ranty commencing by diileilin. So 26. yfJi 2. where the one co- 
parcener enters, claiming the whole, and a ftranger enters, fhe 
folely (hall have an al!ife. And here the cafe is ftronger, for the 
heir and devifeedo not claim by one title ; and therefore the entry 
of the one (hall not be an entry for the other : efpecially where 
the dcviiee pretends that he had the entire, and the other doth not 
contradiftit; for otherwife great mifchief would enfue : for if the 5.c«n.Dig^7t. 
dcvilce continues divers years, and after dies feifcd, and a defccnt 
is cafl, and his heir enters into die whole, and levies a fine with 

Eroclamations, and fo more fines or defcents, if it (hould not 
, e good for the vrhole after, but a long po(reili6n be drawn in 
I <jueftion, and the fines avoided without claim, it would be very 
j znifcfaievous, that by a deeping tenure the devife ihould he avoided 
I for a third part, and the purchafors difturbed. And to* that pur- Ante, 615^ 
I pofc was cited Rtigmlds v. Kinsman {a), where, in fuch a cafe, the 
dcvifee entered into the entirety, and made a feoffment of the en- 
tire houfe, with letter of attorney j the quedion was. Whether the 
entire or but two parts of the houfe paffed ? And It was held, that 
the entire ; although that, in the fame cafe, tlie devffe was void for 
I a third part, by rcafon of the tenure, ^c. ; yet the devifee, entering 
into the whole, had thereby gained the poflTefTion of the whole, 
and the whole entirety pafled. And as to tfie second point, 
it was moved, that the queen's eftate cannot be defeated without 
matter of record ; and that (hall privilege the eftate for life ; for 
there cannot be a fraction in eftatci ; for he who enters for a con- 
dition ought to reduce the entire eftate, and not part thereof: and 
to confirm that, the Year Book of 9. Hen. 4. pi. 4. and ChoImUys 
Cuft in the exchequer (i), were cited, where it was held, that by 
the payment of a fum in the* country, without office, the queen's 
eftate could not be defeated ; and that (hall privilege tile eftate 
for Ufe, that it (hall not be defeated. Wherefore, Sec. — But Hob. 120. 
ALL THE Court, except Fekker, as to thelirft point, refolved, 
that this entry and leafe did not gain anyjpofTeffion butx)f the two 
parts ; and the heir was never out of polieffion tliereof, and fo his 
fine good. Secondly, They all, except Gawdy, held, that by the Co. Lit. ^54. 6. 
performance of the condition the entry is lawful upon the tenant 
tor life ; and the franktenement being defeated, the queen's eftate 
is defeated ; for (he is the perfon againft whom the freehold was 
dcmandable and recoverable : but if the queen had had the imme- 
diate eftate, it had been otherwife. — Popham denied the law to 
be fo in CholmUfs Cafe\ and that fome of the Barons denied it. 
He denied alfo that the law was fo as it was cited in Reignoldi' 
Cafe, unlefs that the words were, " of all the houfe ;" then, he faid» 
all had paflcd. Wherefore, for the matter, they refolved for the 
plaintiff, and gave day to the defendant to (hew other caufe, other- 

(tf) Ante, 115, (}) a. Co. 50. to 55, 

wife 



^ Michaelmas Tdrrri, 40^ ind 41. EUz^ In B. R. 

Hiirstsy wife judgment Ihould be entered for the plaintiff.— ; At which day it 
Jia«E^ was toovcd in arreft of judgment, tliat the verdiflt was iraperfe^. 
First, Becaufe it is not found that Gcrtrudcy from whom the plain- 
tiff claims, was heir to Hen, StapUton the devifof* but to Faiih \ 
and it may be that (he was heir to Faithy the daughter of the de- 
vifoi* ; for a verdict ought to be full and perfeft ; arid if may be, 
although Faith was the daughter, the devifor might have a fon, or 
that (he was heir to him by a fecond wife : and a verdid ought to 
have fo great certainty, that no apparent intendment can be 
againft it ; and if it be ialfe, that an attaint may be brought. And 
to that purpofc the cafe of Pru^e v, Johns was cited to be ruled in 
this court accordingly. — Secondly, Becaufe it was found, 
that the devifc was to Elizabeth for life, remainder to Faith^ ita 
frout in ultima voluntate ipjius Henrici apparet, cujus tenor ft quitur in 
hac verba (whciein is mentioned, that the devifewas made to the 
fon of WilL StapUton) ; but it is not fo found by the jury.— 
Thirdly, Becaufe the eje^ione firma is brought of 400 acres of 
land; and the jury found the defendant, quoad all except tliree acres 
parcel tenementorum ptadi^orum^ not guilty, et quoad the three acres 
they find all the matter ut fupra \ and that Gabriel Armjlrong let 
the aforcfaid three acres to die plaintiff, and that he was poffeffed; 
and that the defendant ejefted him out of the three acres parcel 
tetiementorum pnedi^lorum \ and that they did not find the ejed- 
ment of tlie aforefaid three acres let, &;c. and it may be, that the 
cjeftmcnt was of the ether three acres. — And for tliis laft caufe tlic 
WHOLE Court held it to he ill. But to the two other exceptions 
they fpake not much. Wherefore a venire facias, de novo was 
awarded ; and at the trial the matter was compounded. 



Michaelmas Term, 

40. & 4i..Eliz. In the Common Pleas. 
Sir Edmund Anderfon, Knt. Chief Jufiice. 
Thomas Walinfley, Efq. "l 
Thomas Owen, Efq. \ Jujlices. 

John Glanvile, Efq. i 

Sir Edward Coke, Knt. Attorney General. 
Sir Thomas Fleming, Knt. Solicitor General. 



Cass r. 



Ricfby againji Wentworth. 
The court iwii PROHIBITION upon a fuit for tithes. And grounds his pro- 
cot prohibit a ^ hibition upon the 31. EHz. c. 6. fuppofing that the Aid parfon 
fuit for tithes had Committed fimony in coming to the parfonage, and thereby 
upon a fuggcf- ^^ chuxch was void, and the tithes not appertaining unto him.— 
tion of fimony. ^^^ j^ ^^ agreed PER CuRiAM, Glanvile abfente, thataprohi- 
|.Com.Dig.5i3*tj^jQj^ lay not J for the fimony might more aptly be tried in the 
^w*^' ^o ^^' ^i^itu^ court. Wherefora confultation was awarded. 

Button 



i 



Michaelmas Term, 40. and 41. Eliz. In C. B# 643 

Button againft Downham. *^^** »• 

Trinity Term^ 40. Eli%. Roll 865. 
rjEBT upon obligation, conditioned to favc him indemnified A J^**^® P^ 
^ from an obligation, wherein the plaintiff and defendant were [^^'^^^^^""^^ 
obliged to one TVolmer^ bfc. and from all fuits and aftions con- then aJive, for 
cerning it. The defendant pleaded the ftatute of ufury ; and that the forbearance 
it was corrupts arrcatum between him and ^fVolmery that the de- ^^ ^^l- [pr « 
fcndaiit, for the forbearance of 20I. for a year, fliould gjve to froU Ka cou«tf 
mer lol. if J. his fon were then alive ; and that the obligation was ^ond has bem 
made for that caufe, and fo void, which the plaintiff might have given, and « 
pleaded in debt againft him, by ff^olmery bfc. And it ^Vas there- condition bro- 
upon demurred. -^Williams moved, that it was not any ufury, '^y"'/'^*^"^""* 
in regard the payment of the lol. is appointed to be upoo an un- p^| be pleaded 
certainty, vlz^ the life of -^. fcfr.— But Anderson, Walmsley, in bar. 
and (Wen (Glanvilp <?^w/^}, held it tobe ufury: fprthe cor- Poft, 741. 
rupt agreement (which is cof*ifeflcd by the demurrer) makes it ^^ j^^^^ ,j,^ 
ul'ury ; and it is the intent makes it to be fo, or notfo: for if there Noy, 73. 
be a wager bctv/ixt two to have 40I. for 20I. if one be alive at fuch Moor, 398. 
a day, that is not any ufury, for the bargain was bonafidey and not ^ ^®* 69* 
for loan(tf ) ; but if the intent hereby was to have a Ihift, it is other- ,. Lit. 273^.464. 
wife. But here, forafmuch as tlie condition was to favc him harm- i .Aik.as&.j^x. 
lefs from all fuits, which he had not done, nor doth the defendant 35»- 
lafwcr thereto, but to the obligation only, they held the plea to be *"^^- ^*P- *^J» 
ill : for although the firft obligation were void, yet the fecond obli- *-^^^^*"5c» 
gition is forfeited, becaufe the plaintiff had not faved him liarm- ^ sa^ Ab.411. 
kl's from fuits concerning it {b)* ^. Burr. 715, 

S91. 
CcrTp.47. 113. 794. 5. Co. 70. a. i.Lut\vyche,464. 469. Poft. 741. Cro. Jac. 509. Vide note (4), 
i,Hi\\k P. C. p. 53a. Noy, 7?. (a) Sec March v. Pigot, 5. Burr. aSoa. {b) Ante, 59?, Vide 
\Maeff> V. Could, z. Burr. 7«6. and Richards v. Browo, Cowper, 770. 

Anonymous. Ca$« 3. 

A CTION upon the cafe for words, vlx. " He keeps a bawdy- To fiy that* 
•^ " houfe.'*— And ruled, that the aftion lies not; for by the ^'^^^ '^^p*.* 
common law he is not punifhable, but by the cuftom of London ; noraaionabic! 
ind therefore this a^ion ought to have been fued in tlie fpiritual ^ j^^,j ^^ 
court- , i.Buift. 138. 

Noy, 73. 117. 
It is now determined chat an adllon will lie for thefe words, $ayer, 33 \ for it It an 
ladidable offence by common law, as a nufance. i. Hawk. 357, 

Wrenford againjl Gyles. Casi 4, 

A LEASE was made for twenty-one years, if the leflee lived fo Aleafefom 

^ long, and continued in the leffor*s Ycrvlce. The leflbr dies ; x^*'** »^.«^ W"- 

and, Whether the term was determined ? was the queftion,— An- J^j^JJ"^^"^ 

DERsoN, Owen, and Glanvile held, that the leafe continued : fcrvicfof the 

for there is Aot any laches in the leflee that he did not fervc ; but icflor, is not dc- 

it is the ad of God that he cannot ferve any longer : and it is like termined by the 

to &V Thomas Wroth' sCafe (ii).~But Walmsley ftrongly againft ?^* .*»^ ^^'^ 

it; becaufe it is a limitation to the eftatc, that it fliall not continue * 

longer than he fervcs. Suare. ^^y* 7«» 

^^ 3.Bac.Ab.435;. 

{m) D}/tr, 167. Plowd. 454* 

The 



^44 Michaelmas TcrM, 46. irtd 41. Eliz. In C B. 

Case 5. The Countcfs of Warwiek againft The Lord Berkele}'. 

toawntofpa*^ jjj a ^y,.;^ of partition, judgment was, quod pattUio fiat. Where- 
b TOt pcr^ upon, before the fecond judgment, Urd Berkley brought a writf 
■ntitthe fecond of error.— But all the Court held, that until the fecond judg- 
judgmenc it en. nicnt given, quid partltiojiahiiis Jit^ the record is not full, nor tho 
lerea. judgment pcrfeft ; and tlicrefore the record fliould not be re* l 

S.aAntc,6j6. moved. I 

tx. Co. 40. Co. Lie. 168. a* 

See t. & 9. Will. 3. c. 3. and 7. Ann. c. iS« | 

^*« ^* Chambers againjl Leverfage. 

A prom'ifc by A CTION upon the cafe, upon an ajfumpjii. For that fVilfiark \ 
** **^"*2'dd> ^^^fig^y teftator to the defendant, was indebted unto him 

Sf fci& tertator ^ ^X ohhgation in 20I. and the defendant having aflcts, &c. pro- 
iD confidcration mifcd to the plaintiff, in confideration auod daret diem fdutiom pr» 
that thr plaintiff uno anno^ that he would pay it. The iiiue was non affumpfiu ^^^d 
diutt dismjotu^ found for the plaintiff ; and the entire debt given in damages ; 
^CiU*fup- ^^^ exception taken, bccaufc a day cannot be given, but the day 
portanljirw/i/tf. of payment may be deferred. — And the Court faid,True iris, a 
9. Co. 94. a. <J*y cannot be given in proper fcnfe ; but it is to be intended, ac- 
x.RoU. Ab. z6. cording to tlie vulgar and common difcourfe, as deferring the day 
Moor, 854. of payment. And the Court fuither faid, that here was a great 
^Vtlr' *r "^'f^*^^^*^ ^^ ^^® defendant : for, notwithftanding this recovery, the 
Atkynt^l-*]^^ plaintiff may have debt upon the obligation ; and therefore the 
^tile, III.' jury ought to have given damages only for the non-payment at 
T. Sid. 89. the day, and not to have given the entire debt. But, upon the 
»• i-«^*3. plaintiff's promife to deliver the bond to the defendant, the plain- 
li:rp%'ot tiffhadjndgment. 

i^nte, 67. 

Caif. 7. The, Earl of Lincoln againjl Topcliff. 
VtitoraeeoMnt "T^EBT upon a bill enfealed, whereby the defendant acknow- 
wiU lie on a -»^ lodged that he had received of the plaintiff 7I. nd emendum a 
^"^6 ^^Ih^cK^^ P^^^ ^^ bellows, and other things to the ufe of the earl ; aud avers,, 
jpcnded^to Uic" ^^^^^ '^^ ^^^ ^^^ bought the things, nor paid the n\oney. And 
plaintiff »s ufe. thereupon the defendant demurred ; for he objeftcd that tlic plain- 
Dyer, 20. b. ^^^ ^" *^^ ^^^^ ought tp have had accompt and not debt.-* 
3. L«>n. \%. But all the JUSTICES held, that he might have either the odc 
Cro. Car. 142. or the other, at his eleftion. Wherefore, witliout argument, it 

503- was adjudged for the plaintiff. 

J. Roll. Ab. 597. ■* ^ ^ 

Ld. Ray. 814. a. Salk. 658. 7. Mod. 87. 2. Com. Dig. 638. 1. Salk. 9. Cowp. J974 aoo. 565* 

CAfi 8. Powel agaifift Brazen-nofe College. 

An original writ "pORMEDON. The writ was, ** Precipe quid reddat^* twenty 

amended bjTthe •*■ acres Hed'mgton (iN being omitted). — WiLLlAMs prayed 

Court upon the ^\^^^ j^ might be amended ; and fliewcd the Court that it was only 

Corfitor.^ ^^^ default of the clerk ; for he had writ it out of a piper deli- 

Ante, u'9. vcred him to make the writ, wherein this word in was infertca 

^ ^ (which the Curfitor confcflcd on his examination here upon hil 

•wp.4»5. oath). — Whereupon it was amended by the order of the Court* 

But Walmsley fidt doubted thereof; becaufe it being anori* 

ginal writ, whether it might be here amended, where the dcfaulw 

of their own clerk are. only amendable : but afterguards be aflentcd 

to the amendment. 

panel 



Michaelmas Term, 40. and 41. Eliz. In C. B. ^$ 

Darrel againft Wilfon. ^^"9* 

•p EPLEVIN. The-defcndant avows for a rent-charge, as cxe- ^"J^^,^"^ 
^ cutor. The grant of 'the rent was to his tpftator for forty ^^^^^^^ndiMi 
vears ; with a clauTe of diftrcfs in the deed, that the grantee and to tbohm. 
h\% heirs might diftrain for the rent during the tern^ — Yet it was 
ruled, that the executor ihould have the renit an4 diftiaia for it, 
and not the heir. 

Read's Cafe. Cai« 10. 

A CTION for words. Whereas the plaintiiF was a jufticc of siandcnms 
•^ peace within the county of I/iff^/ii, that the defendant fpake ^^^^^^^^'''^^^ 
tlicfe words: " I heard it fpoken that Mr. Read was one ^^^^^^^i^^"^^ 
** was at BurrePs robbery ; and that four of them went to his houfc ^ntc, ^txr. 
•* the next morning," uBi reveha the defendant never heard 
any fuch words, &c. The defendant pleaded not guilty ; and it 
wa^ found againft him, and 100 marks damages given. — And it 
was moved by Harris, that tlie words were not adionablc ; for 
they be not fpoken out of malice, but upon another's report. 
Neither is it faid tliat Mr* Read was one of the robbers ; and it 
may be takeji in good part, that he was one of the company of 
the parties robbed : and when it ftands * indifferently, the bcft 
Ihall be taken. — Yelverton e contra. For when he fpeaks words 
upon report, whereas there was not any fuch report, it was a flan- 
ilcr in him ; otherwife every one by fuch an addition of a report 
would flander another : and it was therefore adjudged in A/eggs v. 
Griffin (a), where an aftion was brought, *• A woman hath told me, 
*• that (he heard fay, that Meggs's wife killed her firft hufband ;" 
and avers that there was not any fuch report ; and adjudged that 
the afiion was well brought. Wherefore, &c. — ^The Justices 
doubted thereof; for words of flander ought not to be taken by 
implication , and willed the parties to agree; and the plaintiff took 
fifteen pounds for all ; and judgment was entered by confent. 

{a) Trim Term, 3;, Eliz. ante, 400. 

Hale againft Cranfield. case h. 

ACTION upon the cafe, for that he {p^kc quteJam fcandakfa J^^ ^^'^^^'''^ 
'^^ verba of the plaintiff; tenor quorum fequhur in ha^c verba: '!^^^^\ 
I* Thou art ^ cozening knave, and a bankrupt, vel conftmlUa,^' whatwordt ^ 
The defendant pleaded not guilty, and found for the plaintiff; were fpoken, 
end judgment entered for him without privity of the Court. — Ante, 572. 
The Court, being now moved therein, held, that anaftion lies ^ Mod. 71. 
Uot. Walmsley faid, it was by reafon of the word conjimilia^ B. R, H. 305, 
?is it was adjudged in Garter's Cafe, It is not good alio, for that 
it is faid, that he fpake djvers words tenor quorum fequitur. Where- 
fore it was comn^adedi that tlic roll flaould be amended. 

Allen agaiftfi Stear. caiii*. 

« 

INFORMATION brought in London, upon the i^.Eliz, c. 5, a party grlevea 
^ for juftifying at Z. of ^ fraudulent gift of goods made by may lay hi* in- 
Ihldtn to the defendant, to defraud the plaintiff of his debt. The ^^'"^^^'"^ J» 

* any county, 

M. 7?6, Cartb. a3i. Cro. Jac. 178. 3. Bac. Abr. 505. 3. Bl. Com. 254. a. Hawk. 3? 1# 
j4i.3S6. Ball. N. P, 15^^. <» Sdlk. 10. 373. a. Tcrni i^cp, Z74. 1. Vent. 8. 

4sfcn4vH * 



646 Michaelmas Term, 40. and 41. Eliz. In C. B. 

AiLEN defendant faith, that H. gave thofe goods unto him at Coventry^ 

St»a^ ^onafide^ and that he juftified the gift there, and traverfeth the 

juftifying at Loiuion.—Er per Curiam ruled to be no piea; for 

3. Term Rep. although the 3I.£//5k. c. 5, (<») reftrains common informers to 

365. im nctts, bring their action only in the proper county where the offence 

was done, yet .that doth not extend to a party grieved, but that 

he may inform in what county he pteafc ; for he is not a common 

informer. Wherefore the defendant waived that plea, and pleaded 

not guilty. 

(«) Sec 21. Jac. 1. c. 4. Ld. Raym. y%. tfyz. 

caji i3» ^ Anonymous. 

In an muMhu if A TTAINT upon a verdift in the exchequer. The parties 
IljftfhcmVfl/^^^^ y^^^^ ^^ '^"^' y^^"^ ^^^^""^ /rrr^/uf facr amentum. At the day 

record ready,""' ^^ ^r\2\^ the grand jury appeared, and the record of the exchequer 
purfuant to' w^$ not removed hither. It was debated what fliould be done : 
a3. Hen. 9. c. 3. for it was agreed per Curiam, that no day Ihall be given to the 
^rt^^^'bl! P'^'"^^^ ^^ ^"'^6 ^" ^^"^c record ; for the plaintiiF at his peril 
defendants M ^ught to have brought in the record before that time. And a pre- 
vtitbouttiay, ccdent was tlien fhcwn in 26. Hen. 6. pL . that the judgment in 

fuch cafe was, quod querens whll capiat per breve ; et quod tarn dcfendcm 
A&Qor If* quam juratores eant indefine die ; and no fine put upon the plaintifii 

And fo it was done here {a). 

(a) An atujnt may be brought to rc- both forts of attaints, that Sir tV. Blxth 
vcrfe a judgment either at common law, Jtom f;iys, he had not obfervcd any inftarce 
©r on the jx, Htn, 7. c. 24. revived by « of an attaint in the 6ook$ latenhan the 
aj. Utn. %, c, 3. J but the pra^Vice of fet- ftxteenth century ; and refers to h^ttfjKi 
tingafide verdict upon motion, and grant- Cajt, ante, 309 — Vide 3. Com. 403, 404* 
IpgMtv trjah, ha» £0 fiiperfeded the ufe of and i. Burr. 393. 

Casi 14. Anonymous. 

In debt opon a p^EBT againft two upon a contrad. The one pleaded nihil dc^ 
^n'rpfeiTJi/ *^^ perpatriam ; the other w^ges his law.— And it was held 

i6^«*, the other hy alJ the (Jourt, except Glanvile, that the one only cannot 
cannot wage wage his law ; but he ought tp plead alfo per patriam^ bccaufe the 
law. debt is joint. — Glanvile i contra, Becaufe otherwife every one 

5. Com. Dig. n>ight be oufted of his law, by joining one of the plainrifF's 
a6j. friends with hiq[i in the action, Kide ^o.Edw.^.'pl.^^. ^i^Edw-i^ 

//. 27, 

?^" M- Gybbins' Cafe, 

Trbiity7erm,^o. Eliz. J^oll ^^29* 
Th. Wr. A CTION upoq the i . isf 2, PA. y Mary, c. 1 2, for the takin- a 

•S>Ton^'T». ^^^^^^^ •^ ^' i^ ^^« <^o""ty of SuJlex, and driving it to S, in 

P. & M. c. * ^hc county of Kent. The defendant pleaded not guilty : and it 
mud be from was tried by a juty of the county of ^///^.v. And this mattej 
bothcountiw. moved in arreft of judgment, Bccaufe the venire facias owght^o 
TrVAp. Pais, have been from both counties ; for the tort confilWd of two parts* 
»o3- ^ — And of tliat opinion w^ xa^ whole Court, 

^. Ann.c. i6> 



Mid^^cliQas Term, 40. and 41. EUz. In C- B. 647 

Smalpeace againft Smalpeace, CauiS^ 

Hilary T^rm, 40. EHx^ Jlcll 911., 

rvEBT :^inft the defendant as admintftrator of F. He pleads a ^ f««*^ « 
^ recovery agaiiift him as executor ; and befidcs, to fatisfy that, he ^^"^^'^d , 
hath not any aflets. And it was thereupon demurred. — And adjudged mcnt rccovereS" 
to be a good plea ; and li£ fhall not oe twice charged, Where^re againft them m 
it was adjudged for the defend^t, oiitftrnfr^taroi 

(XfCMtor. Ame,4i. i. Sid. 404. i. Lev. 261. Dyer, 80. 2.VerD.i99. Stra^^oy. ^^"S^*4* 5?T« 
Rep. 690. 

Stepney againfi Lloyd, Case 17, 

Trinity Term, 40. Pliz, Roil 1 157. 

r\EBT upon an obligation. The c^fc was, That StephmSf f^fcd'S^^ 
*^ (heriff of Carmarthen^ by virtije of ^n attachment under tlie from ^lowt 
privy feal of the court of requefts, took the defendant; and for which had bq 
bis enlargement, he made this obligation, to appear before the authority to 
queen's council, attending in the court of requefts at Wejlminfter, ^^^^*!^^ 
—In debt hereupon, the opinion of Anderson, Chief Juftice ^zni Jp^-, he !Lt 
Glanvile, was, that the procefs was not ^ny warrant to the avoid ii by 4», 
fherifF to take the body, nor to take the obligation ; for that court rtfu 
hath not aay ppwer by commiffion, by the ftatute, or by the com- ^*^^' ^5»« 
men law : but the (hcrifF ought to obey the procefs out of tht 4. inii. 97. 
court of wards, and dutchy court ; for they arc appointed by the Cro.Car. 59c, 
ftatute. Wherefore they held, that this obligation is not within ^^ i^ 59'* 
the 23. Hen. 6. c. 10. for the faid ftatpte intends only obliga- ,/r^* Ab^'eSr, 
tions taken by fuch who are iri their cuftody by the courfe of law. Ajicn,^*. 
Wherefore this obligation was taken ter durefsy a|nd fo avoidable. 2. Vern. 497. 
And although it was alledgcd, that this obligation is within the 4- Bac Ab46|i 
ftatute, in regard thc'fheriff took it by colour of his office, al- 
though he was not lawfully in his cyflody^ it was notwithftanding 
?djudgcd for the defendant. 



HiUif 



^ Hilary Term, 

41. Eliz, In the Queen's Bench. 

Sir John Popham, Knf. C^/ef Jujiice. 
Sir Francis Gawdy, Knt. 1 

Edward Fenner, E/j. r Ju^icej, 

John Clench, Efj. J 

Sir Edward Coke, Knt. Attorney General. 
Sir Thomas Flemings, Knt. Solicitor GeneraL 



Cast u Audlcy agahji Frank. ' 

Michaelmas Terntf 49. Fliz* Rollz^j. 
Law wager al- TTX EBT in chanccry (for that the plainiift was ftrvant to the 
lowed dthtnt I 1 Jqj.j keeper) upon a contraft, and upon arrcaracres of ac- 

sfft on-^ doubt ■ ^ ^ *"»-(. a c a ^ ji_ i--i_ ° 

wi^iheritcogid """"^ compt. 1 hc defendant, quoad that which was upon ac- 
be pleaded in compt, pleaded nihil debet per pairiam^ and quoad rejiduum he waged 
tl^iiccr^, his law. The whole record was fent hitlicr, and the defendant 
had day to wage his law ; and at the day was ready to make ir.— i- 
Fenner doubted, whether he ought to make his' law here; for 
none of the clerks could remember any fuch precedent : where- 
fore, hc only being in court, fcnt Kemp, thefecondary^ into the com- 
mon pleas, to know their opinions ; and they alfo were doubtful. 
Wherefore, de bene ejfe^ he caiifed him to make his law. Sec. and 
would advife of the recording thereof. 

^^" •• Davies agahifi Taylon 

W(^ aftion. ii CTION for thefe words : " Thou art rotted with tlie pox." 

Antc,z. — And by Fenner, he only being in court, it was adjudged, 

Cro. Jac. 144. ^^^ *^ words Were aftionable ; for it is to be intended of tlic 

430. French Pox. 

I, RolL Ab. 43. I. Com* Dig* 1S4. (D. 29.) Ld. Raym. 710. Sed vide i. Term Rep. 47 5, 

Casi 3. Beverley againft Beverley, 

l/twoarcfoed p\EBT }n thc common pleas againft John Beverley and Jofeph 
inajolntaftion, ^ Beverley^ upon an obligation; and judgment agaiiift both; 

^^^^K *"^ ^ ^^^'^^ ^^ fatisfaciendum iflued againft Jofeph only. And 

PToccao?out. thereupon, being outlawed, hc brought error. — And becaufe it 

Wry muft be ought to have been awarded againft both, as 34. Hen. 6. pL 33, 

Mken againft is j as alfo, bccaufe it appears not by the return of the exigent, 

Voth. xhsX thc judgment of the outlawry was by the coroners {a), as it 

a!tid.^?iL ought to be, as 21. Hen. 7. pL 33. is ; th^ Court revcrfed tliq 

J Mod 1. outlawry upon both theft rcafoiis, 

(4} Cp. Lit. 28S. Dyer, 317. 8. Co. 116. Cro. Jac 358. 531, 2. Hawk. 634. 

Cask 4. RaziHg, Scot, and Others, againft Ruddpch, 

ta/ier Term^ 3Q. £//«. Roll 359. Eborum, 
If judgment be ir^RROR by fix of a judgment in the common pleas, in repln'm 
^linrTfrnwi agamft tbcm: where one of the fix, viz. Razing, avowed 

defendants, and one of them makes a releafc of all errors to the plaintiff, ye^ he «99not plead Uil rdeafft 
•n bar 19 a wri( of t^Qr^ io prejudice of the o;h^ d^f«o4aQt|^ 



Hilary Term, 41. Eliz. In B. R. 649 

in his own right for an amercement in a leet. Scot and the other Ra-inc, &c. 
five made conufance as his fervants, and judgment againft the «^«»'!A 
fix, and damages and cofts gwen againft them. To be difcharged ^"*'°<'^«- 
ofthecofts and damages, die fix brought error; and the releafe ^;^•^•^^•*S• 
of 5fff/ (hanging the writ) of all aftions was pleaded in bar. It y^^^ ^^^' **7» 
va^ thereupon demurred, and moved that this was not any plea, jcnk! 27^ 
For the difference is, where an aftion is brought by divers in d'lf- 3. Bum. m. 
charge of thcmf elves ^ the aft of one, as non-fuit, or releafe, fhall "ard.* 50. 
not prejudice his companions to bar them to proceed in the fuit; ^^^^' '5*- 3i9* 
i\ \n audita querela by divers, there the non-fuit gf one (halj not Huuon^l'o. 
be a bar to tlie reft; as 15. Edw. 3. ^^ Severance*^ 23. is. So of 4.Bac.Abr.664. 
an attaint, i6. Edw. 3. " Severance^' ij. and 29.-^. 35. accord ('<7). , x j^^^^ g^ 
But where an aftion is brought to charge another y if the aftipn js co. Lit. 139. t. 
brought by divers, the rclcafe or non-luit of one of the parties Cro. Jac. 117. 
fhallbar his companion^ : and this difference is put in 2. Hen, ^,pL *• ^^*^ '33* 
16. And the book of 26. Hen, 8. pL 3. is to be anfwercd uppa *°* ^'^' '3S* 
this reafon, where many were plaintiffs in an attaint upon a ver- 
dift againft them in trelpafs, the non-fuit of the one mould .bar 
the others, is to be intended where they w6re plaintiffs before,,and 
fucd to charge another ; and according hereunto is the opinion ot 
FoRTEscuE, 35. Hen,6, pi. 19. (^). — Gawdy held, that it was (^) Hob. 304- 
a bar; for the writ is to be reftored to a perfonal duty (viz. da- Yclv. 209. 
mages and cofts, which they had loft), which being perfonal, the ^"> J*c. 6i6« 
aft of the one (hall prejudice the other: but the cafe of ^^^'^^^^^J^' 
querela is well to be agreed ; for that is as well to difcharge the ^' * 
execution of the land, which is in the realty, as of the goods ; 
and tliereforc 20. Hen. 6. ^^ £ar^* 59. and 256. and 18. Edw. 4. pi. 
14. in an affile by two, the releafe of one of the plaintiffs is no 
bar for the land, nor for the damages ; bepaufe they enfue the 
realty. — Popham, C.J. The difference is gopd law, where many 
arc aftors by way of charging another, the aft of the one ihall 
prejudice tlie other. But otherwife it is where they are plaintiffs to 
difcharge themfelves ; for, in the firftcafc, the law prefumcs a folly 
in them ta join with one, who might difcliarge all (c). But other- ^^ ^.Mod.i?e. 
wife it is on the part of the defendant ; for it is not in him to ap- .carth. 7. 
point who fhall be joined with him in the aftion. And, when.^. Mod. 305. 
llicy are compelled to join in a writ of error, or attaint, to defeat 
a judgment, it is not reafon, that the aft of one fhould prejudice 
his companions (d). And the cafe would be more mifchievous ; (d) Antc,448, 
for the plaintiff might bring an aftion againft one who fliould col- ^^^^ '7« 
lude Willi him, and ouft all the reft of their writ of error, or at- sira.^ii/606 
taint. But, if two be plaintiffs in debt, and they be barred by an Scealfo, Ld, 
erroneous judgment, and cofts are taxed againft them, and they Ray. 1403. 
bring error to avoid thofe cofts, the releafe of the one ftiall bar the ^- ^« ^- ns» 
other ; for it was their folly to join in the firft aftion. Wlierc- q^^^^^'^^' 
fore, is^c. — Afterward, being moved again on another day. Pop- ®"8'^°7* 
HAM, Clench, and Fenner, agreed that it was not any bar, 
(j\vrj>Y a^fente; and it was fo adjudged, and day given to exa- 
mine the errors. 

Davy againft Matthew. Caie 5. 

Hilary Term, 40. Eliz, Roll 740. 

rjECTIONE FlRMiE. Upon a fpecial vcrdift the calc was, The graViteerf 
^ Lcflec for twenty years lets it for ten years, rendering rent, alcafcforywrs, 
upon condition, that for the non payment, the leafe fliould J,^^^,^^^^^ 

stiomed, may enter upon fuch under IciTee^ for a condition broken, i* Roll. Abr. 473. jCo. Lit. 214^ 
»»5- 30^. Dyer, 309. Plowd. 141, 

«R0. Enz. PART 11. X X ccafe. 



650 



Davy 

againft 
MATTHbW. 

S.Saund. 24.0. 
1. Leon. 62. 
Strange, 405. 
3. Wilf.234. 
Pougl. 187, 
3/r6r.Rep.996. 



Case 6* 

}n replevin, if 
the defendant 
makes conu- 
fance under a 
grant from j4, 
and the plaln- 
titT pleads a 
priftr grant from 
^. he mufl tra- 
v^rfe the Uft 
grant. 
Ante, 30. 
Po:V9i3.' 

S. C. 6. Co. 24. 

S. C. Moor, 

55'- 557. 
Owen, 142. 
a. Vent. 212. 
Cro. Jac. 299. 

Yelv. 221. 151, 
\. BuKt. 1. 
CraCar. ^^i. 
tut. i5j8. 
5. Com, Uig. 

|I2. 



Hilary Term, 41. EHz. InB. R. 

ccafc. The Icflcc for twenty years by deed grants all his intercft, 
and term, to the leflbr of the plaintiff. The leilee for ten years 
attorns {a) ; the grantee, for tlie rent arrear afterwards, enters : and, 
whether his entry were congeablc ? was the queflion. — It was moved, 
that his entry was cqngeable by the common law : for the condi- 
tion being, that for non-payipeat his cftate fliall ceafe, it ftiall be 
without ej>try, and a ftranger may take advantage thereof; as ap- 
pears II. Hm. 7. pL 17. And if he cannot by the common law, 
yet he is a grantee of a reverfion within the ftatute of 32, Hen. 8. 
c. 34. to have advantage of the condition ; for the words of the 
ftatute are, that '♦ the grantee, his executors, or affigns, fliall take 
^* advantage of a condition," whicli word " executor^\ is nccefla- 
rily to be intended of a grantee for years. And the cafe oi Matures 
jigainft IVcJlwQod {h) is, that fuch a grantee fliall take^ advantage 
of a covenant. Wherefore, ^r, — Clench and Fenner hcldtliat, 
in this cafe, h^ fliall take advantage by the common law : for the 
pftate Ihall ceafe without entry ; for, beginning by paroU it may 
fo determine. And, if he cannot by the common Uw, he may 
clearly by the ftatute ; for by that leafc made, the leflbr hath the 
reverfion, and thegrfintee hath that reverfion and rent, and is within 
the intent of the ftatute \ for he hath the entire reverfion. And of 
that opinion was Gawhy, tliat he was within the ftatute ; but he 
doubted whether he rr^ight by the common law. Wherefore, Pop- 
HAM ahffnt^^ it was adjudged for the plaintiff. 

ia) I'he ntctffity of attornment is now taken away by 4. & 5. Ann, c. i6. (^) Ante, 
j6oo. 617. 

Helier agalnjl Whytier. 

Michaelmas Term, 40. 4if 4 1 . £//z. Roll 
15 EPLEVIN. The defendant made conufance as bailiff of 
^^ Herbert^ nrsSitv of the requefts, iox damage feafant \ for that 
one Richard Arch let the land wiitRE, in i. Edw, 6, to one 'John 
Arch for eighty years ; that John Arch, 2. Eliz. granted it to Jane 
Archy and that flie in 35. Eliz, granted it to Sadh\ who in 31. £//2. 
conveyed it to Dr. Herbert his maftc;*. The plaintiff confelleth the 
ieafe and grant to Jane Arch^ and fv|rther alledgeth, that ftie took 
to huflDand one Tarr^ who in 9. Elix. granted it to the plaintiff; 
and traverfes the grant to Sadler, And thereupon the plaintiff 
demurred. — Tanfield and Fostj-r, for the defendant^ moved 
that the plea was ill ; for he by his firft grant pleaded, hath con- 
fefled and avoided the grant allcdged to the defendant, and therefore 
he needed not traverfe it ; for where the plaintiff conveys to bim- 
felf title before the defciidant*s title, there a traverfe is not rcqui- 
fite ; but otherwife it is, where he conveys an after-title, for there he 
ought to traverfe, otherwife his title is not good ; and in proof 
thereof relied upon 33. Hen, 6. />/. 28. 2. Edw. 6. ".JSr, C$nfcl[:' 
65.— GonFKKY c contra. Here ought of necelfitv to be a trave^-f^^to 
the grant alledged by the defendant, for tliat is neither confcflcd 
or avoided by the allegation of the firft grant j for a confellinj 
and avoiding is to confcfs it, and fliew it to be by a defeafc- 
able title ; as 5. Hen. 7. pL 13. where a feoffment is pleaded 
by t!)c defendant, the plaintiff faith, that the feoffor d'li- 
feifed him, ai]d infeoffed tlie defendant, &r. and therefore 
cited Partridr/s Cafe, Dyer, 171. And it may be that here, 
after the grant to* the plaintiff in 9. Eliz. that Jam Anh 
had title, and granted it to the defendant. — And of that 
ppinipf wcr« Gawdy ^d ^lekch, fof this laft rw^fop al- 



Hilary Term. 41 . Eliz. In B. R. 651 

Wgcd; cfpcciaUy as the plea is, that ^ane Arch was poflefled Hclxtr 

l^^Elix. and granted it to Sadler. But Fopham and Fenner e *'ir«'V * 

nistra. For PoPHAM faid, there would be a difference, when a W"^"^"** 

feoffment is pleaded, and when a grant of a particular eftate ; for ^n^p^ .^^ 

in the firft cafe, if the other well entitle himfelf bv an elder 6. Co, 15. 

feoffrocnt, he ought to traverfc, but not in the laft caie; becaufe 

a man may come to a fce-fimple by divers means, viz. by diffeljtn^ 

and tort^ or by lawful means ; but he cannot come to a particular > 

dlate but by lawful means. Therefore, when one entitles himfelf Ante, 45$* 

to a particular eftate by an elder grant, he fhall not traverfe the 

lift grant, but fhall compel the other to fliew by what title he 

daims it after the eigne grant : but he agreed to tlie cafe i. £//a. 

DytTy 171. where he entitles himfelf by a mere ftranger, there he 

ought to traverfe, &c. — And after, upon another day, with the 

affcnt of Clench, abferue Gawdy, it was adjudged for the 

defendant. 

Brograve againji Watts, Cas« 7, 

r^ETINUE for goods. The defendant pleads how, upon a fuit DctSnnewiU 
^ depending againft the plaintiff in the court of requefts, a com- ^'V^'^T^flw 
miffion under the privy leal was direfted unto him out of that riffundcr^a/** 
court, being then Iheriff of London^ to feize tliofe goods, and de- ^utjtraunn from 
liver them to the mafter of requefts; whereupon he fcized, and the court of 
delivered them accordingly. — And it was thereupon- demurred ; and c'lanccry. 
adjudged without argument for the plaintiff; for the commiffion ^"'^ ^^* 
was againft law. For if a man be fued in a court of confcience. Moor, 549. 
and will not obey, his body is to be imprifoned, and no commif- 4.lnft. 84, 
fion ought to be awarded tor the taking of his goods. Where- \^^'^ ^^ 
tore, &c. I,,;. R^jp. ,^5^ 

i.Ch. Caf. 4^. i.Vcm. 411. Cro. Jac. 341. i. Bac. Abr. ^89. 2. Mod. 259. Toihil, 176. 
4.fiac. Abr.425. 2. Mod. 15S. 3. Bl. Com. 444. Cowp. 419. — See 5 Geo. 2. c. 25. 

Ardcs againji Watkins. Cask 8. 

Ante^ 637. 

'THE cafe was now moved again ; and G awdy and Fenner , and ^'^^ '•«» '>y *« 
^, Clench agreeing with them, held, that tlie devife was good, ^^^^^^^ 
and well feverable : for as to that objeftion, that a mifchief may and ajfo by fcvt- 
happcn to the tenant, that he fhall be fubjeft to two a£tions and ra! dcvifccs of ^ 
(iiftreifes, that is his own fault; for if he pays his rent, he fhallpirtofarcnt,for 
avoid it : and the fame mifchief is, where he devifctli part of the re- ^^^''' '"^^^'^^ 
vcrfion and rent, which is agreed on the other part to be well AntT^e^"*' 
enough ; and although a contrad, or a thing in aAion, cannot be Poft.'scxV*, 
transferred nor divided, yet rent only may be. For it is a thing 
in pofleffion ; for he doth not grant the adion, but the law gives '.'f. h ^**'* 
it as incident to the rent. And Huntley $ Cafe {a) is exprefs, C0.Lit.31 0.148. 
where a devifc was of a reverfion upon a leafe for years, with the 4. Mod. »?. 
rent to a man and his lifter, and the heirs of their bodies ; the '• ^^^' **• 
fiftcr dies without iflue ; the brother dies having iffue ; the heir ^^^."1^ ^^^J^' 
tad the moiety of the rent.— Poph am t contra. For the difference j. jnft. 504. 
will be, when part of a rcverfion and rent is granted, that is good ; i.Ron.Ab.234, 
but when the rent is fevered from the reverfion, it is othcrwife : '• SaMc. 39a, 
for then it is but in nature of an annuity, which cannot be granted i'^^;^'*y^^'' 
by parcels, but entirely ; but an annuity or rent only are grant- ^^ ^^ * 
able over, becaufe they are things of continuance, and are not 
pcrfonal. And the rcafon of Huntley's Cafe {a) is, becaufe the 

(fl) 10. Eli*. Dyer, 316. 

X X 2 rtnt 



^5^ Hilary Term, 41- ^1^2, In B. R. 

A%T>t9 rent is. divided with the reverfion. But notw^thftandin^, in re- 

*^'»*"'»^ gaid three of them agieed, he confeutcd that judgcncnt fliould be 

AT»cl^^, entered for the plaintiff. — Note, That in the arguroeat of this 

Poft. 851. cale, a cafe was cited in this court, Ea/Ier Tivm^ 28. EUz. RoU^^. 

where a dcvife was of an entire reverfion and rent, which was 

void for a third part; bccaufe it was \\o\Aq\\ in capite^ and debt 

was brought for twp parts of the rent, and adjudged paaiat^iiiabk* 

Caie9. Bonner againjl Stokeley. 

EafterTermy 40 EHz. Roll i}!. 
An aOion on A CTION upon the cafe. Whereas he had fued an aftion of 
the cafe lies -TV. ^^}^^ againft J. S. wherein procefs continued until he was 
fofa"n^cfc.v^^on outlawed ; and he thereupon fued a capias ut/agatum, whicji was 
a cap. uilJp. delivered to the defendant, being ftieriff of the vill of Nottingham^ 
Ante, 625. by force whereof he arreftcd him ; that afterwards he let him at 
I'oft. 706. large, the plaintiff not fatisfietl ; and therefore had brought his 
J. RoU. Ab. ^ftion. — The defendant demurred ; and ^fter argument at the bar 
810.805. for the plaintiff, none being therefor the defendant, the Court 
5. Co. 88. b. heij clearly, that the aftion well lay ; bccaufe the plaintiff hereby 
s-Mr^cp. was delayed of his debt. 

iitzg. 2b $• Bull. N. P. 65. 2. Strange, 901. Onflow's N. P, 63. — Sec jr. EU». c. 3, f. 3. 

Cask 10. Anonymous. 

If debt he TfRROR of a judgment in the co|nmon ple^s againft three cxe- 
brought bycxe- '*-' cutors. The error affigncd was, That one of them died, pend- 
cutors, fcnd one ing the Writ, bcfore judgmerit. And Warbekton moved, that 
any^t^e wrTt" ^^'^^ ^^*'^^ ^^^^^ » ^^^^ when One of the executors plaintiffs dies, this 
docs'not^a'bate. i^ "^ crror, for they might be fevered. — But the Court held 
Ante, 625. it no error. 3. Hen. 7. pL f. 38. £Jw. 3. pi, 11. i. Leon. 44. 
Co. Lit. 139. 1. Leon. 44. ig. to. 135. Harrf. 317.^ Went. 96. — Ses 8.1^ 9. Will. 3. c. ki. f. 7. 

P^,,,^ Levctt /75-.',/>/? Hawcs. 

^H/ite^ 619. 

Afaihcrcarnot 'TpHE CASE wa? now movc.l again. — PopHAM was of opinion, 
maintain an ac- 1 j^j^^ the aftion ought to have been brought bv the fon, and 
mJfcmldcTr ^^^ ^y '^^^^ father; for the promife is made to the fon's ufe, and 
^U to ?ive a the ordinary covenants of marriage are with the father to fiand 
certain fuin to feifed to the fon's ufe ; and theufe fha!i be changed and transferred 
khf-*'! in confi- to the fon, as if it were a covenant with himfclf ; and thedamage 
^TrriaV^ for non-pcrformancc thereof is to the fon. And of that opinion 
An^cr^63.6i9. ^'^^ FtNNER. Clexch doubtcd. Gawdy was abfent. — Towsf, 
Porf.'s49. of counfcl with tlie plaintiff, cited a cafe adjudged in this court, 
Moor, 550. Card'i^^al V. Lcicis^ where in coniideration of marriage betwixt the 
a. Jones, 102. defendant's fon and the plaintiff's daughter, the defendant affum- 

1. Rcll. 31. ed to give a ftock of lool. to his fon : and for non -performance of 
Bacon's Max. ^^^^^ promife the father brought the aftion, and adjudged main- 
86. tainablc. THECoitRTwilicd him to fhow that precedent. Et W- 

joiv natur. — And it was afterwards adjudged for the defendant. M'uc» 
43. i3 44. pL 3. 
Cask j2. Walker a^ahjl Nicholfon. 

Covenant en an |->.OVF.N ANT. And declares, That the defendant bv indcn- 
prfmi^rflrip'^ ture had bound himfdf apprentice to the plaintiff for fcvca 

pica, irif^rcy. Replication, ilic rnHom of London, that an infant may. bind hiroWf. ^«. If this i» 
m dif^ariur* in pictfling. Co. Liu 50.4. a. 3. Leon. 4c. i. Lev. Si. \. Sid. 142. Cro. Car. i;> 

2. Saum'. 117. 5« Com. Dlj;- 94. 1. Term Kcp. 2S7. 



•rtilary Term, 41. Eliz. tn fi. R; (>53 

Jrrars, and had covenanted, that he would not depart within WAtrF.* 
tJic faid term; and fliews that he departed within the term; cIT'i^'h 
whereupon he brought this aft ion. The defendant pleads, that ^*^"®*-*® * 
he was within the age of twenty-one years AX. tlie time, 6cc. The 
plaintiff replies, that tlie cuftom of London is, thdt any infant 
above the age of twelve years may bind himfeif to be an appren- 
tice, &c. Upon this replication it was demurred in law, and the 
caufc Ihcwn, for that it was a departure in pleading (/7).^i-FLEM- 
ING, the ^ueen^s Solicitor, moved, that it was not anv departure, 
bat Hands well with the declaration ; and in proof tnereof cited 
21. Hen. 7. ftL 17. and ahfwcrcd the Year-Book of 37. Hen. 6. pi. 5. 
that where a cuftom is alledged generally, that any one may dc- 
vife, &c. he cannot maintain it afterward by another cuftom^ 
that an infant may dcvifc ; for there be divers cuftoms. — The 
Court feemed to doubt thereof, wherefore they would advife ; 
but they faid, that, notwithflanding this cuftom, a collateral cove- 
nant fliall not bind ah infaiit. Kc (tdjournatur; 
(d) Vide 4. ft 5. Ann. c, i6. 

Quarles againft Fayrchild. tUsit3. 

PROHIBITION, furmifing, that the church of Brian in A prohibition 
** Cornwal was a donative, and that king Henry the eighth was ^**.* "°^^®. 
feifcd in fee of the advowfon thereof, and granted it to Charles ^r^lUdoaion if 
Brtnidony from -.vhomJie conveys title unto himfeif; and that one there be a doubt 
Ainf-jo'irth^ pretending it to be prcfentative, and that he was patbon, whether the 
prcl'ented the faid Fayrchild, who fued in the court of arches to church was do* 
have induftion ; and cited IV. Forth, who had it of the donation "^')^'|;^°j* '^"'^ 
trom the plaintiff, who appeared, and appealed to the delegates, 
and died. The plaintiff comes in pro. inter cjfe fuo, and pltraded this ^- ^'^ 5*+» 
title, that he had this church as a donative ; and becaufe this plea *' ^^ *^^^* 
was rcfufed, he obtained a prohibition. And now confiiltation a*.fil.Rep.ta* 
wa> prayed ; for it was moved, that the plaintiff was not an aftor 
there, and the plea is determined ; and therefore there is not any 
ciul'c for a prohibition. — Popham held, that con fultation ought 
to be granted ; becaufe the defendant clarmcd nothing but induc- 
tion, which cannot any way be prejudicial to the plaintiff: for if 
it be a donative, the induftion is to no purpofe ; and if it be pre- * 
fentative, the other can have no remedy for the profits until in- 
tludion, nor try his right; and therefore no reafon to prohibit it. 
And although Forth be dead, the fuit is not determined, as it was 
alledged ; for it is made to the judge, and he ex officio is to bring 
in the party who pretends intereft. Wherefore the Court inay 
veil grant confultation to proceed.— And fo was the opinioi;! of 
THE witoLE Court, and cotifuitation was granted; 

Bcnves agcmjl Paulet. Ca^i 14. 

PRROR in 'dn affumpjtt, Wherein the plaintiff declared, Knajumpf-Ml 

Whereas the defendant was obliged to him in 700I.; which ob- "^^^^^ ^" ^^^ 
ligation he, being indebted to the quecri, h.d affigned unto her ; ^^^^^^ ^[ ^^ 
that the defendaur, in cojifidcraticu that the plaintiff would for- bond.in conn- 
bear to procure any proccfs againll him for the faid debt until deration of for- 
Hilary Term then next following, promifed unto the plaintiff to ^'^^^^^^^^ *^f^'' 
pay to him 2G0I. The defendant pleaded non a^mp/It, and it was ^^ jf;^^|J|;"' 
found againft him, and judgment given for the plaintiff. The dc- ^^^en. 
fcadant brought error in the exchequer chamber, and affigncd it, ^^ j^qjj^ /^t,^ ^^^ 

MoOT| 701. i.Saand,»io. Cowp* iiS, 






Case 15. 



65+ Hilary Term, 41. Eliz. In B. R. 

BowE« becauie there was not any confideration. — And fo held all the 
tga!»ft Justices and Barons ; for, by the affignment of the debt. It 
was conveyed to the queen ; and therefore the forbearance of pro- 
curing of procefs was not any benefit or cafe to the defen- 
dant ; for it might have been awarded againft him for the queen, 
notwiihftanding tlic plaintiff's promife. Wherefore the judg- 
ment was reverled. 

Stanton agauijl Suliard- 

The fteriffmay TERROR in thc exchequer chamber of a judgment in tlicqucen's 
bring ajfumftfii ^ bcitch in an ajfumpjit^ wherein the plaintiff declares, that he 
for his pound, being fheriff of EJfcx^ the defendant affumed, in confidcration 
^' the plaintiff would Wy an execution for the defendant, to pay 

"^«» 335* ^^^Q j^jjQ f^}^ ^ fym as was allowed by the 28. £//2. c. 4. for a 
Moor,468.699. Sheriff to take. Upon non affumpjit pleaded, it was found for the 
Cro'u*^ *^^ plaintiff, and adjudged for lirm: and 'error was brought, and 
LRoirAb^ie. ^ffigned, that diere was not any fufficient conlTderation.— And of 
i.Ro.Rep.313. that opinion was Glanvile, jujl'tce\ for, at tlie common law, a 
Noy, 76. Iheriff ought not to take any fees, but it was extortion ; and tliis 
1. Jones, 65. ftatute is only to difcharge a fheriff from extortion, if he take 
14^5. ' ^^^ ^^ ®"^y *^ ^^^ given him by thc ftatute : but the flatute gives 

1. Hawk. 317. him not any means to obtain them ; for he ought to execute the 
Strange, ii6z. Writ at his peril, othcrwifehe fliall be punifhed ; and it is not any 
H; B««T. 1981. excufe for him to fay, that the party would not pay him his fees ; 
*°Tcrro Re ^*^^ ^^ ^^^ execute it, he cannot have an [akftion of debt, nor any 
■*^^, ^' other remedy; for thc fees given him by the flatute is not any debt m 

him ; and fo it was adjudged in the common pleas in 5/r Stephen Some'i 
CW/t',when he was fheriff of London. — But the other Tusticej 
AND Baroxs held It to f>c a good confideration ; becaufc the exe- 
cution was made at his rvx]Licft, and was a benefit unto him ; and 
by the flatute a fheriff may lawfully take his fees, and therefore 
may take a promife to have them paid him; aiid tlierefore they 
were of opinion to have affirmed the judgment. 

A (Ueriff can- guT then aiiother error was affigned. For that the a£lion was 
Tn hlTowncaufc t>^«^ght by Suliard by the name of fheriff of Efpx, and tlie talcs de 
n isowncau e. ^ ;,.^,^^jy^^j^^^;^.^ ^ ^y^g returned by himfelf. — ^And for this caufc thc 

2, Burr. 1856. . , -' .- , '' 

Caf. cro. Law, judgment was reverfcd. 

^^5- Clyncard's Cafe. 

Case i6- 

. /^LYNCARD was indifted upon thc 8. Hen, 6, c. 9- Thc record 
an'?nd!amcnt ^^^'^^ ad fejfioncm pacis^ ^c. per facramentttm J, B, C. D. et all- 

muft flicw that orum legalium homhiHrn de comhatu pnedUio pr/tfentatum exlftit, i^c, 
ic was taken on'and it appcareth not that it was per facramentum 12.. for if it were 
fht oath oftvHlve prcfentcd by a lelTcr number, it was clearly ill. Wherefore it wa^ 

"""' reverfed. 

^. Hen. 4. 4* 

4.T. E*dw. 3. 31. a. Iiift. -jS;. 3. Inft. 30. 2. Hawk 307.36^1. 3. Bac. Abr. 131. 2. BL Rep. 719. 

^rr. 10S8, 1. WUr. j»49. 

Caie 17, Crouther's Cafe. 

Aconftabicmay /^ROUTHER wa« indifted, for that a burglary wisis committd 
be indidcd for ^^ in the night by perfons unknown, and J,S. gave notice thereof 
refuftng,w»')//fo unto him, being then conflable, and required him to make hue and 
tcrpurfuc a fe. ^^.y ^ ^^^ j^^ Tcfufed, &c. Exception was taken to the matter of the in- 
place of notice didmcnt, becaufe it hatli been adjudged, that an hundred fhall not k 
muft be aiicdg- cliarged with a robbery cottttnitted intfac night, becaufc they arc no« 
•it. ^te,27o. a.. Hawk. P. C. ix6« 






Hilary Tcrm> 41. Eliz^ In B, R. 6ss 

bound to give attendance ; no more ought a conftable to do it in C«owtmi»*i ■ 

the night. — ^But all the Court held the indiftment to be good ^'^**' 

jiohvithftanding : for it is not like to the cafe of an hundred; be- 

caufc it is the conftablc's duty, upon notice given unto him, pre- 

fently to purfue. And it was faid, that in every cafe where a ftatute ^ ^^^^^ . 

prohibits any thing, and doth not limit a penalty, the party offend- ,. Hawk.'c^ %^ 

ing therein may 'be indided, as for a contempt againft the ftatute. f. 2. 

Another Exception was taken, becaufe he did not fhcw the 
place of the notice.— And that was held to be matcriaL Whereupon 
tilt party was difcharged. 

Kelly asatnji Walker. Case ig. 

PROHIBITION; And fufmifeth,- That the defendant was a a dcciamtion irf 
'*' clerk, and made an aflault upon his fervant, and he coming; in prohibition that 
aid of his fervant, and to keep the peace, laid his hands peaceably ^'^^ ^'''IlJ"?!. . 
upon him ; whereupon the defendant made an aflault upon the ^c^^a"^^^ 
plaintiiF, and he defended himfelf : and afterwards, that tlie defen- triable at com. 
dant fued him in the court chriftian before the delegates, pro vlo^ monfaw, u not 
lenta htje^lione manuum Juper dericum^ where he pleaded all this mat- ^j'^^^y^^bici anS 
ter, and that if the defendant had any hurt, it was de fon nffault Irlnt aTroWbl- 
demefne. But the court chriftian would not alloW of th;(t plea, but tion after fen-*" 
proceeded to fentence againft him, and fined hirti ten pounds, and tcncc pronoun- 
awarded damages to the clerk. The defendant confefleth, tiiat thfe "**• 
plaintiff pleaded this plea in the fpiritual court ; but he fhews th^t F.N. B. 117. 
the plaintiff was condemned there for non-attefidance upon that ^<^^P- 330'4»»» 
fuit ; and travcrfeth the rcfufal of the plea. And it waS thereiTpoh \^^^J^\ 
demurred. — Godfrey moved for a confifltation ; for the fuit was ^'^ ^' 
well begun in the fpiritual court, it being for the beating of a clerk, ^. Tc^m Rep. 
fcv the ftatute of ArUcull CAr/, cap. i. Apd this plea pleaded there', 473. 
was well triable there ; as i. Rich. 3. pi 4.. and 46. Edw, 3. pL 32. 3- TermRtp.?. 
And then the allegation^ for tlie takmg away the jurifdidion of 
that court, is well traverfable ; ais wheYe a caufe is aUedged for re- 
moving of a fuit out of an anacnt demcfne-cburif^a)^ it is traverfable*; («) i.Convbi^. 
as 6. Uen. 4. pL I. and 27. Hen. 6i pL 4. Wherefore,- &c.— 351- 
Gawdy held, that this cafe was out of the ftatutes of Articuli 
Cieriy 7ii\d of Circumfpc^ie Avails ; for here the pafrty hid ^ood caufc 
to beat the clerk : and as to the traverfe, it is not good ; for tiW 
furmife is not traverfable. But he agreed to the cafe of sai ancicni 
ikmeffie ; for otherwifc the lord ftiould lofe his franchifc. But it 
is not fo in the other cafes ; as in the cafes alledged^to remove a 
fiaint in a rccordorci it is not traverfable, — And of that opinion 
was ALL THE CouRT. WhercfcTC it was i[djudgci for the plaintiff".* 

Lowe and Terry's Cafe. ^^^ »9- 

AUDITA QUERELA. Tho cafe was, Two we^e obliged in If rwo perform 
a ftatute, the defeafance whereof was, that they and their *^[^J^^^^«^«a 
wives, upon requeft, IhouW makeaffurance of fuch \zi\6% as Ihould qucil^^J^he 
be devifcJ. The breach aftigncd wis, Tha^ a deed of feoffment rcq^jcft be mjuf* 
(Ihcwing what) was offered unto 7>rr;r to be feale-, arid he' re- to one, and he 
fufed, &c. Whereupon the plaintiff demurred : for it was al- ^^^^^^ ^^ '* * 
fcdged that this rcqucff to one is void, for it is to be made to both ; g^^JJ^ ** *^ 
as y>.If?ff.S; ^* Condition*' 10^. and 33. Wf/r. 8. '^Jointcnarts'' 60. ^.Rf'n.A^.^54.. 
*^B*t ALL THE Court held, that tlic breach w» well affigncd ; 5. vir.er, 245. 



656 Hilary Term, 41 • Eliz. In B. R. 

Ttf T-iCAts ^^^ although the rcqueft ought to be to both, yet tlw:y needed not 
Lir»Y » A»K. ^^ jj^ together at tlic time of the requeft, for then peradventure he 
fllould nevef find them : wherefore if he required" the one at one 
^ time to feal it, it was good ; and he might requeft tlife other after- 
wards, and it had been g6od : but when one refufeth, it is a breach 
prefently, and therefore the ftatute is forfeited. • • 

yj^^^^^y Secondly, It was alledgcd, that the plea wasuncertain ; for the 

tcidmer.t/**' deed tendered was of land in the parifh of St. Magnus, and the de- 
Amc, ici. viling of the deed is alledged to be in pareMa St. Margaret^ and 
the tender and rcfufal in parochia ditia, which is uncertain ; for it 
appears not which of the parifhes is intended. — But the Court 
held it to be well enough ; for it fliall be intended the parifh men- 
tioned in tlie plea, and not tlie parilh mentioned in the recital of 
the deed. 

^^" *«• Walfal agairtfi Heath. 

MUhaeUnas Term, 39: W 40. £//z. ^c//3i04. 
\ ^^(^IIZI R EPLEVIN. The avowry was, That 7. S. feifed of lands for 
vfifc without" tl^c l*f^ of ^y^^^ I'^^s wife, in right of his wife, the reverfion in 

deed is void as fee to the baron ; he and \\\sfem€ made a leafe for years without writ- 
tothcwifeja ing, rcfcrving 4I. rentj>^r annum: the baron, being indebted by 
namc^irl/e/^^^^'^S^^'^"' ^^^^ ^^^ ^^^ 5)^7 his wife executrix. The debtee 
rnftcad^'of 5iV hririgs debt againft her by the name of Ifabcl, and recovered ; and 
is void J and a upon a writ of fieri facias a devajlavit was returned, and thereupon 
mere rtnt car- an elegit awarded ; and the flieriff returned, that Ifabel had 4I. rent 
not be d«iivertd ifl\jing out of that land, upon a demife made by her and her huf- 
^9irut^nLlum hand, and delivers the moiety of that rent, and thereupon he 
tenemottum. avo ws for the fame. — i\nd it was thereupon demurred ; and adjudged 
iVnte,43S. ill for three cauies. — FiksT, Becaufea leafe for years hy baron and 
Sav. 111. feme without deed is void againft Xhc'feme, — Second'lst, The rc- 
Dyer,9i.b.i46. covery againft Ifabci is void againft Sibyl \ and the (her iff cannot 
1^ Leon. 191. extend her land.— Thirdly, The Iheriff deliverin? tlie rent 
3!^Co. 27.\ without the land, fo as^ there is not any reverfion, it is but a rent- 
Cro. Jac! 563. feck ; and a bare rent cannot be deliveried «/ liberum tenementum. 
3. B.;c.Ab.3o6, — Where/orc it was adjudged for the plaintiff. 

4.C4C. Ab. 336« /■ . . . 

^^""' . Andrews Jfj/>y/ Needham. 

^ichaelmas Term, 40. ^ ^i.Eliz. "Roil 2^21, 
Kthe dlffiija /COVENANT. The breach was affigned in hoc : Whereas the 
kiw'Jhe It. defendant, being leffee for years, covenanted at the end of the 
/f>^thelcr^ec term to leave and yield ujp the tenements well repaired to the plain- 
may plead it in tiff; that he had not left, &c. 1 he defendant pleaded, that one 
tar to covenant Blunt was fcifcd in fee, until by the plaintiff di (feifed, who let to 
by the dfjiifor. thc defendant ; and afterwards- iVww/ re-entered, who enfeoffed 
i.Bac. Ab. 438. y. S. who is yet fei fed. Sec.-— And it was tlicreupon demurred j and 
I. <Vood's Con; adjudged a good bar. 
317. 4^^. 



Eaftcr 



Eafler Term, ^ 

41. Eliz. In the Queen's Bench. 

Sir John Pophatn, Knt. Chief Jujiice. 

Sir Francis Gawdy, Knt. 

Edward Fenner, Efq. > Jujiices. 

John Clench, Efq. 

Sir Edward Cdke^' K^J. j^ttorney General. 

Sir Thomas Fleming, Knt. Solicitor General* 



D 



Domina Ruflel ^gainft Gulv/eL Qa%% u 

Hilary TtrtJtf 41. Eliz. RgU 191. 

EBT upon an obligation of 500I. conditioned for the per- If a ieflbr co»ft. 
ibrmance of all covenants, article?, and agreements in liich nantto let cer- 
an indenture, betwixt the plaintiff on the one part, and "'"/^"fy^hT 
the defendant on the other part, on the part of the faid Gulwcl to ciofe^a tortiooi 
be performed. And in the faid indenture was contained, that the entry by the lef. 
laid Lady Ruffil let to the defendant certain lands called Eyford- 'ec into the a. 
Pafitaes^ excepting a clofe called Eyford'church-chfc, The de- ^^^f^^j^^^^ 
fciidant pleaded, that he had performed all the covenants, &c. The conditionToper* 
plaintiff afSgns for breach, that the defendant entered into the form all <or«^ 
ciofc excepted, and thereof difTeifcd hen Etji^ tic. The defen- iian/i contained 
dant demurred in hw. — Coventry, for the plaintiffs moved, that *" '*** ^^*^ 
it was a breach ; for the exception is an agreement that the leflbr i. Roll. Ab. 431^ 
ihall retjiin it: for an indenture is tlie deed of every the parties ; "-Co-s®* $'• 
and therefore, the difturbancc of the plaintiff from the occupying ^^^' -|^ 
■tlicrcof is a breach of the agreement ; and therefore 11. Hen. 7. MoorJsssI 
fill. P/*W* 134. and 14. Hen.S. pL 15. arc, that an indenture Saik. '196. 
i^ as the words of both parties. And this cafe isput in Ploivd, 67. "• ^^- 'To- 
by Montague, that it the Icflle difturb the leflor from enjoying '*• ^°*****" 
tlie clofe excepted, it is a breach of the agreement. Wherefore, j^^{J^] 3'* 
&c. — And of that opinion wa*; Gawdy : for the words in an in- 
denture put in the generality Ihall bind both parties, and fhall be 
taken to be the agreement of each party ; and to that purpofc 
cited 35. Hen.S. JLher^ 37. 21. Hen, 7. pL 37. that a refcr\Titioa 
of rent is as a covenant on the lcir*o's part. — Popham and Fek- 
NER e contra. They agreed, that an e^^ccption is an agreement of 
tlie Icflee, that the land excepted fhall not pafs by the demife ; but 
it is not SLWj agreement that he (h^ll not occupv. But fometimes 
an exception is an agreement that Ihall charge tlie leflee ; but that 
», where he agrees on his pait that the leflbr (hall have a thing 
^h^rs which he had not before : as if he lets lands, excepting a 
vay, or common^ or any other profit a prendci-^ that is an agrees 
n»cnt of the lelTcc's that he Hull have the profit : and if he be 
Aligfcd to perform all the covenants and agreements, if he difturb 
|« this, he (hall forfeit his obligation ; for there the Icffor hath an 
intcrcft in the thing excepted. Wherefore, &c. — Afterwards it 
^vuatanorlier tixue moved ag^in : and PoPiiAM iaid, that he had 

conferred 



^^ Eafter Term, 41. Efiz. In B.R. 

^aVaila c<5^^errcd with the other Juftices, and tlic greater part of tliem 
GuLWLL. agreed, that this exception is not fuch an agreement as is within 
the intent of the condition of the obligation ; and that the obli- 
gation is not forfeited by this difturbance. Wherefore it was ad- 
judged for the defendant. 
No nonfuit after ^nd here the plaintiff would have been nonfuited, and could 
rourrcr ar- ^^^ . bccaufe fhe appeared once in this Term. And the demurrer 
Ante, 410. ^as. argued^ Wherefore, &c. l^ide 11. Co. 50. 
Port, 675. 

CAtK z. Spark againft Spark. 

Michaelmas Term 40. £^41. Eiiz. Roll 387. 
If a icafe be 'TpRESPASS. Upon demurrer in law, the cafe was, That a Icafe 
^ded as an ^ X f^j. jjfj. ^^^ made to J. D. by indenture ; and after by ano- 
mufThefo ai- *^^ indenture he let it to J. Spark for 99 years, after tlie expira- 
MgMl^ tion or determination of the firft leafe, Jl tamdiu vixerit ; and fur- 

ther grants to J. Sparky furvivor of them, that after the death of 
the furvivor ot the faid J, Spark the lands (hall remain to the exe- 
cutors of 7. Spark for twenty and one years: J, D. died ; and 
after him J. Spark dies inteftate : Whether his adminiftrator (hall 
have tliis term ? or, Whether it ought to have vefted in the exe- 
cutor as a purchafe, and not in tlie teftator ? was tlie fole queftion ; 
and for that vide 1 1 . Hen. 4. pL 34. 46. Ediu, 3, ^/. 3 1 . 16. Edw. 3. 
** ^id Juris Clamat^^' 22. 14. Eliz. Djcr^ 309.— The CprRT 
delivered not any opinion to the matter m law ; for, in regard of 
an exception to the pleading, judgment was given againft tlie 
plaintiff, viz, for that the defendant pleaded his freehold. The 
plaintiff by replication (hews, that a leafe was made by indenture 
to J. D. for life, and after let to J, Spark for ninety and nine 
years, &c. ; and a graiit further, per indenturam pradi^aniy that af- 
ter the death of J. D, and J. Sparky that it fhould remain, &c. : 
Ante, loi. a,jj ti^g fecond leafe is not pleaded by indenture : and pradl^am 
refers to the firft, whereto /. Spark was a ftranger, and therefore 
W ^^« s.C. ill. And for this caufe it was adjudged againft the plaintiff {a). 

Poft* 666. 840* 

Case 3. Ewer againft Heydon. 

Ante 476. In the Exchequer Chamber^ 
I 'T^HE cafe was now moved again, and the error affigncd in point 
land X of law, — After argument, Anderson, Walmesley, Glak- 
-!.« acYiirt hhf' ^^^E» Savile, and Kingsmil, agreed, that the houfcs in JVater* 
houfw arid \^TAfo^d did not pals by that devife ; for properly, houfes will not pafs 
in /I. with all by the name of the lands ; for they cannot be recovered in a pra- 
his otiicr lands, ctpe by that name : and wlien he names boufes in tiie firft part of 
MftureTin^2* the devife of the land in Lawton, in the county of Oxon, and in the 
the "b^Krin B. fecond part of the devife dcvifeth only lands, and adds thereto 
do not pafs. ' mcadows and paftures, that expounds what he intended by lands, 
Ante, 476. .fviz, arable land only : and it fliall not be intended to pafs meadow 
j.RoM. Ab.49. and pafture, unlefs he had added them : and the addition of them 
a. And. 123. excludes houfes and woods ; and therefore it was rcfembled to the 
i.Roll. Ab. 47. cafe 9. £/;z. Dyer^ 261. A man hath land in a vill, and in two 
i! fillm^M ^lainle^ of the fame vill, and devifeth all his knds in the vill, and 
a. Bum! 176. *^ o'*^ o^ ^^^ hamlets, the lands in thc^ other hamlet pafieth 
Hob. 173. ' not ; but if he had dcvifcd all his lands in the vill, the LukIs 

Koy, 112. 

Cywp.a99.363, So8. Ooi]{t 759, t» Term Rep* 105* s. Term Rep. 49S. 

in 



A man has 
houfes and 
in cwovcounties; 
and devifes his 



Eafter Term, 41. Eliz. In B, K.. <tS9 

in both hanilets had pailed. But naming the one hamlet, it 'Evrw,% 
iiuil be prcfumed, that he intended not to pafs any thing in the ««f«V 
other hamlet. Wherefore the judgment was affirmed. (<?j. — ^But ^^»os^ 
Pjtiii AM and Clerk feemed to doubt therein. ^) ^^ ?' ^**^ 

Penruddock' agatnft Clerk. Cam 4, 

Fiile ante 234. 
TTHE judgment was affirmed* But it was now debated, whe- CoasareaHow- 
^ ther colls should be allowed to the defend^t in tlie writ of **»*« in every 
error, bv the 3. Hen. J. c. 10.— First, Bccaufe no cofts were "^^^^^^J^^'* 
recoverable in the firft adion. — Secondly, For that there is not forecxccutiaa 
inj- execution to be had, but an abatement of the nufance. — fued. 
Thirdly, In regard that il appears; that the writ was not fued Ante, 134.^14. 
for dclaT% but upon a doubtful matter, which hath been oftentimes s. 0.5.00.10*^ 
ar^ed in this court. But notwithftanding thefe reafons, it was ^'^' ^***- '45* 
rcfolvcd, that colls are allowable in every cafe where a writ of l^j^^^^jc 
cn^or is brought before execution fued. And notwithftanding ,'. vent. i6t 
tlm the matter was doubtful, vet tlicre was ' not any cafe but that 4. Mod. t,^^ 
cofts are allowable. But it is In the difcretion of the Court what Strange, 13^ 
cofts fluU be allo^xd : but they muft not at all deny it. Wheixr- f^ *^3- 6 1 7- 
fore it was awarded, that the plaintiff in the writ of error fliould ,0*4?'^* "^** 
pay cofts. I. Bac. Abr, 

524. Ld. RayiB. 1403. Amc^ 6f 7. 
See t3« Car. s. c s« 9. & 9. Wifl. 3. c. 1 1. and 4, Ann. c ^6. 

Paget againfi Crumpton. Caw 5, 

vpROHIBlTION. For that the plaintiff was fued in tlic court An occupier <jf 
* chriftian, for a taxation towards the reparation of the church ^*"^ '"^"^ 
c(Belhr9Hght9Hi within which parifh he had land in i^'^s hands, ^^^j^J^^ 
but was not an inhabiunt within the parifli, nor had any houic rcpi2^/the 
therein. The cjueftlon was. Whether tlic cuftom of a parilh (which church, tiiott^ 
was aliedged) tor taxing thofe who had lands in their manual oc- he refides in 
cupation within tlic parilh, but inhabited elfeWhcre, towards the »n^»*»er pantfij 
reparations of the church, and providing of books and vcftments, fucd^Uiccw* 
be good or not ? — Poph am at the firft was of opinion, that it was chrinian may 
not good, becauic they who inhabit not within the pafifh, have enquire of Uie 
not any benefit of the divine icrvice there ; there being no rcafon 4«an^*ty o^ 
lo charge them. But afterwards a precedent was ftiewn, 33. EU%. ^^^ ^.^ ^^ 
Jcffaies V, F<Jiei\, in this court ; where it was adjudged, tlut they * ' •" 
who occupied land within a parifti, although they inhabited in 2. Roll. Abr, 
another place, fbould be contributorv to the reparations of the 289. 291. 
church without any cuftom; becaufe, otherwife, all churches 5; C°« 66, 6;« 
would fidi to decay. If one might purchafe the greater part of the |*J{^ '^' 
land in a parilh, and reCde elfewhcrc, all the charges would fall 3. Mod. ai f. 
upon the poor of the parifli. But it was faid to be agreed in that 1. Vcm. 367. 
cafe, if he lets the land to one, rendering a firm rent, and he in- 4- W^^. 14^* 
habits out of the parifli, his lefiTce fliall pay towards the reparations ^^'^^' 
of the church, and not the Icffor. And to that opinion all the ^ ^e^ ^]^^ 
JusTic?:s here agreed: f/ Poph am mutav'tt ff^/«/W»i.-— Secokd- 3. Buv-^ioij* 
IV, It was moved, tliat in this fuit, tlicy o^ the fpiritual court 3. Term Rep, 
would try the quantity of the land, for they were taxed ac- **^7* 
cording to tlie rate of their land. And tlicy pretended tliat he 
hath more land tliere tlian in truth he hath, wliich \% always tri- 
able at tiic common law.— *-5r^ non allocatur. For the principal 

being 



66o 



Eafter Term, 41, Eliz. In B. R. 



Paget being fuable there, the circumftanccs concerning it are InqniraWe 
-p»w/ and triable there alfo: Wherefore a confultation was awarded. 



Caiv 6* 

The plaintlflT 
Biult prove the 
identical pro- 
mi fe laid in the 
declaration. 
Ante, 79. 

Moor, 470. 
Ct>wp.67i.766, 
Dougl. 665. 
i« Term Rep. 
a40-447' 



Case 7. 

To make the 
tithe hay of the 
firft crop is a 
good wtodus for 
son payment of 
tithe for the 
latter maths. 
Ante, 363.446. 

Pott. 7C2. 

1. Roll. Abr. 

64». 

Cro. Jac' 42. 
Cro. Car. 403. 
%. Infl. 65%. 
Ld* Ray. 242. 

Case S. 

A man agrcet 
on a particular 
day to feal a 
conveyance of - 
all tl>«'lands he 
thtn had. ^. 
U a convey- 
ance, dated 
tighittn months 
sfterwardty of 
all the lanfis he 
then had, is 
notfubAantially 
variant from the 
agreement. 
Ante, 344* 
P€lt 682, 



Munday againft Martin. 
A SSUMPSIT. Whereas the plaintiff the firft of Ncvemler^ 
-^ 31. Eti%. had delivered to the defendant three cloths ; that tlie 
defendant in confidcration thereof aflumed to pay 30I- one moiety 
within a year following, the other moiety within the fecond year 
cnfuing. Upon non aJJ'umpfity the jury found, that the delivery was 
on the firft o{ Augujl^ 31. Eli%. and all the refidue ui prius : and, 
Whether this was found for tlie plaintiff or defendant? was the 

?|ueftion. — And adjudged for the defendant. For this is not the 
ame ajjumpfit whereof the plaintiflf had counted, but differing 
from it. Wherefore, &c. 

Johnfon againfl Awbrey^ Vicar of Bradfield in Berks. 

PROHIBITION for tithes claimed of hay of the latter maths ; 
-■• and ^Hedges a prefcription, that in confidcration the occu- 
piers of that meado\V had ufed to make the hay of the firft maths 
into cocks, and to fet forth the tenth cock for the vicar, they had 
ufed to be difcharged from the payment of any tithes for the latter 
maths. — Williams moved for a confultation, bccaufe the fug- 
geftion is not fufEcient : for he doth no more than the law re- 
quires. — But THE Court held it to be a good prefcription and 
reafonable. 

Coke cited one Nichols* Cafe to be adjudged in this court, that 
tithes fhall not be paid for the raking 'of corn, unlefs it can be 
averred, that they were foul rakings, and covinous, to defraud 
die parfon, &c. Godolphin^ Rep. 384. 

2. Eq. Ca. Ab. 735. a. Peer. Will. 521. 



Kcble agalnjl Brown. 

A SSUMPSIT. Whereas tlie plaintiff the ziA January, ^i. FM. 
-^ bargained with the defendant for all bis lands in Yarmouth', 
and they agreed to {land to the order of one Skarhorough^ for the 
fum which the plaintiff fhould pay, and what affurance tlie de- 
fendant Ihould make; and that they promifed, the one to the 
other, to perform that order made by Skarbor.ough ; and alledgetli 
in faft, that thefaid Skarborough^thti-dxA 22A January, 38. Eliz. ap- 
pointed, that the plaintiff Ihould pay fuch a him for the land ; and 
that the defendant fhould make an indenture of bargain and fal^ 
of all the lands which the defendant then had in Tarmouth, AvA 
fhews further, that on the 14th September, 39. Eiiz. ht dcviTcd 
and rendered to the defendant an indenture of bargain ; whereby 
he fold to the plaintiff all the faid lands which he then had in 2h'' 
mouthy habendum to him and his heirs, fecundum condujionem d 
agreamentum pradithim ; which the defendant refufed to feal. The 
defendant pleaded non ajfumpjit^ and found againft him to his da- 
mages of 300I. — It was now moved by Godfrey, in arrcll of 
judgment, that the indenture of bargain and falc is not warranted 

• by 



Eallcr Term. 4^. Eliz. InB.R, 6^t 

by the agreement ; and therefore the defendant was not bound to Keil« 
fcalir, becaufe it might be, that he had otJier land on the 14th cgai'fi , 
Sfftcmkr^ 39. Eliz. than he had at the time of the agreement, on B*ow«* 
the lid January^ 38. Eiiz. and the aflurance ought to have been 
irjdc of the land only which he had at tlie time of the agree- 
ment. — Of that opinion were Gawdy and Fenner. For tlic 
aiiurance is not drawn according to the agreement ; and therefore 
he needed not feal it, althougli he had not in truth any more 
]iiid on the 14th September ^ 39. Eiiz. than he had on the 22d 
January 38. Eiiz, and in proof hereof was cited Strode's Cafe^ 
l))fry 218. — 6ut PopHAM e contra. For although the indenture 
varies in words from the agreement, yet if it varies not in fub- 
Itance, it is not material. And therefore, if he hath no more land 
than he had 22d January, 38. Eiiz. he ought to have fealed it: 
for it ftands with the agreement. And if he hath, he miglit re- 
tufe : and it ought to be fpecially (liewn on his part ; for it is not 
ncceffarily to be intended. And always, if tlic aflurance drawn 
agrees in fubftance with the covenants, altliough they vary in 
words, it is not material. As if it were covenanted to aiiure all his 
lands in D. and the aflurance is drawn by particular names, jet it 
is good.— ^0^ Gawdy conccjfit. But faid, that here it is fpecially 
appointed, that he fhall make aiFuf^ice of all the lands which he 
had at fuch a time, which differs much, &c. Wherefore, &ۥ 
Rt adJQurnatur^''-^T\x% matter was afterwards referred to com* 
promife* 

Holiday againft Hicks, ' CAtt9. 

TPHE cafe was now moved again (a), when all the Court re- ^^ * "^^ <*«** 
-*" folvcd for the plaintiff :- for- by the contraft, and receipt of f^ln;*"^.^'^"** 
the money, the property thereof was in the plaintiff, on hu convic- 

Fenker faid, that it was adjudged, where a fervant takes gold tion the owner 
from his matter, and changes it into filver, that the matter Ihould ^»ll h^^e «- 
liavercftitutionof thefilver by the2i. Hen. 8. c. ii. j and this was J?'»"«»on of the 
Hanherrie^s Cafe. — Wherefore it was adjudged for the plaintiff. («> Ante, 61S. 

But afterwards, error being brought thereof, it was rcverfed : Poft. 746. 819. 
for AI4L THE Justices and Barons refoived, that this aSion ^oy 128. 
lies not for money fbund, unlefs it be in a bag or cheft. 2. Buifi. no. 

Stiks, 347. Loft, 90. 2, riawk. 151. 4. BJ. Com. 362. t, T. Rep. 750^ 

Gay againft Kay. c^si ». 

'TRESPASS. Upon demurrer the cafe was. That z feme re- Where ^^lc cuC- 
^ covered dower of the manor of Fremington, wherein were many J®'" ^^ff^^^^ 
copyholds for life, and a cuftom, quid domlnus pro tempore might IV^^^n^^^ mlj 
dcmife for one, two, or three lives in pofleffion, or in reverlion. d mifwinpoffem 
y^pon 7L writ of haifere facias feif nam y the fheriff returned, that he ^ >n or revcr- 
l^ad delivered to the feme the third part of the manor, viz. fuch ^'°"» '^® ^^]^^ 
fcvcral tenements (reciting them particularly), whereof a copyhold J^^J^^'*[j|" 
tenement in die tenure of jfiice Piicher was one. The tenant in bind the fieiri 
slower kept court, and granted the faid copyhold tenement to the rho«sh thert- 
f iaintiff, and to two others for their lives, habendum poft mortem ^ -^fion docs not 
Alice Price. The tenant in dower aften,vard died ; and then fg^,^"^JJ^^" 
A^icc Price died. The lord enters ; the plaintiff ejiters ; and the the'tftatcof^him 
wtiO made the grant. StJviJ*Moor,^^.cMtrm, 1. Ro. A^.499. Moor, 147. Godb. 143. &. RtU« 
Abr. 41. Cro«Jac.'99. Owcn^ 4. 3. Leoo. 22(* 1. Mod. 99. »• Mod. j:^. 



€6z' EaflcrTerm, 41.EI1Z. In B. R: 

Cat defendant oufls him ; and, Whether this grant by copy in rrv'cr- 
againft fion, which wi..s not executed during the life of the tenant in dower, 
Kay. be good Or not? was the qucftion. — W 11.1.1 am^^ fcrjeaptt^ moved 

GTh, Ten. 204. for the plaintiff, that it was good ; and faid, that it wasfo adjudged 

Dougl. 565. in the common picas, 28. ^//z. Brag v. Bourn ;"and Sir Peter Car yes v. 

****^» »47- Stuthcott^ in this court : and in 17. £/r2. JD/rr, 343. in Arundel sCafe, 
Wherefore, &c. — And of that opinion were Poph am and CLENcrr, 
JuJIicesy they only being in court, and were ready to have given 
judgment accordingly. For Popham faid, that it 'was now with- 
OYil queftion held to be good, although it were not executed in 
the life of the particular tenant who granted, although it were 

4. Co. 23. K doubted in the Earl of ArundcVs Cafe^ Trin. if. E/iz, For the 
rcafon why tenant in dower, or a particubr tenant, may grant a 
copyhold m reverfion, as well as in poflefiion, h the cuitoni, and 
thereby the ^ant is warranted ; and therefore tliere is not any dif- 
ference in cither of the cafes : but one who bath a particular 
cftate in a manor, cannot grant a copyhold by parcels, or demifc 
part, and retain the refidue himfclf. And therefore, if 2. feme be 
endowed of feveral copyhold tenements, Ihe cannot grant part of 

Ante^ 103. them by copy in pofleflion or rcrcrfion. Wherefore, &c. 

TfteForHof a But H. Wyat took exceptions to the pleading. First, Be- 

». or hiving caufe it is not allcdged, that any the fer%'ices of any of the frec- 

moftrvictyy but holders was aHotted to the/twir, but -the dtmefnesy and copyhold 

^*'h\'f^y^ tenements only ; fo as ihe hath not any manor, nor can keep any 

nak court, biJt ^ourt, nor grant any copies, &c. — But Popham held clearly, that 

Boi tL^wrt ba. Ihe might notwithiianding : for although ihe, having no fervices, 

»••• cannot have a. court baron, yet fl^e may have a fpecial court for* 

C«^ Lit. 58. a. thispurpole; and it is good enough: and fo it was adjudged in 

Sir Chrijf, HatUn\s Cafe ibr M'cUin^orougb^ where he had twenty 

copyhold tenerncnts, parcel of the faid manor, graivtcd onto him 

by the queen ; and bccaule fomc of them re'iuled to come to his 

court, they forfeited their copyhold. Wherefore^ &c* 

T^e operation Skcondly, He moved, tliat the grant is not well pleaded; for 
Ame^^^i *^*'' he pleads it as a grant in pofleffion, and not as in reverfion. The 
Fo^l. 822.* record was viewed, and it was, that he granted tertrmcnta pnedlila 
per nomen of a mcffuagc which JUce Price held for life. — And it 
was refolved to be an incurable default ; for it is not alledgcd, 
that he granted the tenement in reverfion ; and the fer nomen will 
not help it. Wherefore for this caufe it was adjudged for tlic 
defendant. 



CAje If. 



Colchin (igdiYift Colchin. 



Tfrchrirof a T TRESPASS. Upon a fpecial verdift the cafe was, Barm and 
copyhcidcr may 1 y^^^ copyholdcrs, to them and the heirs of the bmQn. The 

who"ifde* '^" ^''^^'^^ ^'^^' ^^^^ ^^^^'^' ^" ^^^ ^^'^^ ^^ ^^^^ /^^^' before admittance, 
fccnded to hirn furrendcrs into the hands of two tenants, who might take fur- 
bcforc admit- * render by cuftom : and, Whether it were a good furrendcr ? was 
tancc; and if it the queftion. — The Court without argument ruled it to be good. 
He^rcmailTdcr "~"^^^ ^* ^^^ ^^'^ ^X PoPHAM andpENNER, that if a furrendcr 
\^\tzT^^^' ^^ *^ the ufe of one for life, remainder tn fee, and the tenant for 
mittance of life is admitted, that is an admittance for him in remainder. 

tenant for life, acfrrtirs \\\^ in remainder. Ante, 90. 504. .1. Roll. Abr. 49^. 4. Co. £•), a. CiQ» 
Jac. 31. 36. 4. £ac. Abr. 33it Co. JUItt 60, a. in »»(i{« OUb, TgA/%x%, 2. Tu-m Rip. I9S.4S4* 



Eafter Jcrm, 4i.EHz. In B. R* 663, 

Lord Hunfdon againjl Baker. ^"^^ '*• 

pjONSTRANS DE DROIT, for certain lands in ward to the ^^^^j;^;;/'. 
^^^ queen, for the nonage of John Baker ; whereof an office was j^ ^lld ta the 
found for the queen. They were at iffue in chancery, and tiie re- queen, it ;s a 
cord fcnt into tlie queen's bejich to be tried. A challenge was now pood caufc c€ 
made to the array put* in by the Attorney General for the queen ; be- '^'••^'^wsp Jo the 
caufc TT^omas Kemp, fheriff of Kent, who returned the panel, was i^"?i^'l^ll^*L 
unant to Lord Hnnldon. A counter plea was put in thereto, tliat ^^ j^^ pi^ntirr, 
the faid fheriff was tenant alfo to the queen- And it was there- tho* he u aifa 
upon demurred, and much debated whether this challenge were tenant to the 
good ; for it was but for favour. And every fubjcft is? bound in ^^"' 
obcdicncc-to favour the queen more tlian his lord, and therefore '^' *^* 
the law will not prefume the contrary; and for this caufe the S-^-^^^* 553- 
challenge is not good ; which is the rcafon that the challenge for c^y'tf ,^'5*^,^ 
the other jparty againft tl)c queen for favour, is not good. The vcnt. 309? 
opinion 01 the Jufliccs of the common pleas was demanded, and Allen, 29. 
they doubted ; but feemed to incline that it was good: wherefore Saik. 15*. 
tlic Court advifed until the next day. It was then moved to be a *• "*^''- 4'9* 
good challenge ; for this caufe dotli not concern the queen only, but q^^ , ,2^ 
it concerns the heir alfo for his inheritance ; and he is interefted 
therein. — ^And hereunto the Court inclined, but they held the 
counterplea to the challenge to be little material. For although 
he were tenant to both, yet he who takes the challenge ihall 
have advantage thereof. Afterwards, by confent ;of the cqbn- 
fel, Lord Hunfdon waived tlie plea, and confeffcd the challenge ; 
whereupon tnc array was quafhed, and a new venire facias 
awarded. Fide 4. Hen. 7. pL 3. £sf 8. 19. AJf. 8. 

Boughton agaihjl Go\ifley. Case 13, 

INFORMATION upon the 21. Hen. 8. c. 13. f. 26, fornon-re- whatperfons 
iidence. The defendant pleaded, that he was chofen gofpeiUr in a e confidcrcd 
the church of St. Paul's London, that he was refident there by <>»?"«*"«» ©^ 
reafon of that dignity. — It was thereupon demurred ; and argued ^^^c^""^*^ 
by Waterhouse, for the plaintiff, that this was not any dignity Vide Law ▼. 
to excufe the defendant. The civilians divided fpiritual ''^^*^^°"» ^ 
fcnftions into three degrees. — First, a funAion, which hath a 5^' "[""j^^*** 
jurlfdiftion ; as bilhop, dean, &c. — Secondly, a fpiritual admi- 
niftration, witha-cure; as parfon of a church, &c. — Thirdly, 
ihey who have neither cure nor jurifdidion ; as prebends, chap- 
lains, &c. And tl>ey defined a dignity to be adminijlratlo ecclejiajlica 
€*tm jurlfdidftone, vel fotejate conjun^a, and thereby they exclude 
the two laft degrees from being any dignity ; a mulio fortiori, the 
common law doth fo : and to that purpofc vide 27. ilcn. 6. pi 5» 
25. Rdw. 3. pL 41. 24. Edw. 3. Br. ** Nofm.'' 25. that an arch- 
deacon is iiot a name of dignity: and 11. Hen. 4, pi. 40. that a 
parlbn is not a name of dignity. 17. Edw. 3. ^/. 31. a provofl is 
not a name of dignity. 14. Hen. 6. pi. 14. a precentor is not a 
name of dignity. 27. Hen. 6. pi. 3. a chaplain is not a name of 
dignity. And 27. Hen. 8. pi. 10. is, that if a vicar of 5/. Paurs 
luiha benefice witli cure, he ought to be refident upon it; and 
ilut is a greater ^ig^lty than gofpeller. Wherefore, &c. — ^And of 

that 



664 Eafler Term, 41 • Eliz. In B. R. 

Bovcn TON that opi nion were PoPil a m and C l enc h, c/tteris Jnflltiarns ahfenu- 
agahfi y^^^ ^i^jf j|. ^^,^^ y^Q^ ^ dignity within the ftatute*: but they would. 
ousLtT. a^jyjfg upon hearing the defendant's counfel. Et adjournatur. 
— Aftcrwaids the defendant compounded. 

Cask i^ ' Flncux again ft Hovendcn. 

Vttlaiice. A CTION on the cafe. Whereas there had been a way within 

^^ tht city of Can fry hury leading from St, Frtrr's ftrect unto a 
ftreet called Rujh-markct ; TlW^ that all the inhabitants of tlic city 
had ufed, time whereof, Hz, to pafs that way ; and that the plain- 
tilT was an inhabitant there ; that the defendant had made a ditch 
and eiefted a pale crofs that way, whereby he had loft his paflagc, 
Hz, The defendant pleaded not guilty ; and by a v'lfne awarded 
of fV, in the county of Kentj by affcnt of the parties (in regard 
the caufe concerned all the inhabitants of Cant trhury)^ it was fouirJ 
for the plaintiff; and now moved, in arreft of judgment, that it was 
a mif-trial. 

Conibfltof par- FiRST, Becaufe ir ought to have been by a vifnc zX Canterhfrj. 
tJcs cures an cr- Vidt 21. Edix:, ^, p/,'^l. Dyer, 299. — But THE CoURT held it to 
foneous vi/iK. be well enough ; becaufe it was by aflcnt of the parties, which is 
Co. Lit. 125. a. entered upon record. Et confenfus to/lit errorcm. Vide 44. Edxv, 3. 
note [2]. />/. 6. ^.AJfifcy 4. Dyery 367. And Fenner cited Lcrd Crom^ 

Vaugh. 303. weirs Cafe to be adjudged, that an iffuc tried by another jury than 
J. sira. 179. j^ ought to be, yet, being by alfent, was well enough. 

Ana^Tonfora SECONDLY, It was moved by CoKE, Jtttnftfy Gemralj that 
fiuiance will this a£tion lies not for a private perfon ; becaufe it is 2 common 
not lie. except nufance, and is puniHiable in a court leet only, unlefs he can 
the plaintiff has ^^^^ fome fpecial prejudice, as 27. Hen, 8. pL 27. is ; 7a\A. fo it 
of fuffcrsT'^ 'was adjudged in this court, in Serjeant BendlTJcs v, Kemp, that he 
Jf^ec'tai iffjurj. might maintain an ailion upon fome fpecial prejudice. And at 
Ante, 9. 5/. Alban^i Term^ in li'llliams v, Johns {a), it was adjudged, that 

Co.Lit.56.166. ^^^r^ ^ chapel was within a iranor, and the parfon of the adjoin- 
5. Co 73. 101. i'^g church ufed to read divine fervice every Sunday, for the lord 
Tf. N. B. J 76. and his tenants in the faid chapel ; and for that the parfon had failed 
4. Co. 86. therein, the lord brought an aftion upon the cafe ; auid adjudged 
a l^nfk^'^o"** ^'^^^ ^^^^y ^^^ • ^^^ ^^ every one of the tenants might bring the 
p»rih. 191. ^^^^ aftion, which would be inconvenient, that he fhowld IwliaWc 
». Saund. 115. to all their aftions ; but he ought to be punilhed by the ordinary 
e. Mod. 46. in this cafe. But, peradventufe, where there is not any other re- 
Ld. Ray. 493. ^ledy to bc had than by aftion, there every one may have his 
*i*HalV. 366. 2i<flion -who is grieved. And therefore, in fVeJlhury v. Powcl, 
Cowp. 86. v;l;ere the inhabitants of Sottth^vark had a common watering-place, 
and the defendant had Hopped it, and the plaintiff, being an inha- 
bitant there, brought his afVion upon tlie cafe, it was adjudged 
maintainable. But it is here punilhablc in the leet. Wherefore, 
&:c, — And of that opinionwcic Popmam, GAwnY,and FknkF'R» 
that without a fpecial grief fluwn by the plaintiff, tlie action lii*^ 
not. — But Clinch e contra ; for the flopping of itfeif is a fptcbl 
prej Lidice to the plaintiff, that he rannot go that way. Wherefore 

It is rcafon he Uiould maintain the action. SiV ai/Jmrnatur. 

«t 

(#) 5.C9, 72, 73, 

Some 



L 



tafter term, 41. Eliz. In B. R. 665 

Some agalnft Taylor. ^^si 1 5. 

^0T£. A queftion was between them for an affurince df laiidi Acres ihaii bs ; 
-^^ — POPHAM faid, that it had been refolvcd by all the Jus- fflurcd accord- 
TicEs, ttat if one be obliged to aflure twenty acres of land, j^^'^/ljf^"*^* 
the acres (hall be accounted according to the eftiraation of the country, 
country where the land lies, and not according to the meafure li- Ante, 476. 
mited in the ftatute. . 6. Co. 67. 

Pop. 55, t. Wood's Con. 436. 

Ferrers agalnft Borougli* ca$£ i^. 

Trinity Term, ^lBUk. Roll ^^u 

UPON a fpecial verdift the cafe was, A man made a Icafe for A condition to 
years upon conditions to be performed on the P^rt of tlie ^^^J^'^^^'^^^*'" 
leflbr; and before tlie time of the performance of the condition the IJ^o^,* is^noi 
Icffor lets it to a ftranger for years by indenture, and then performs broken by bU 
the condition, and enters* Whereupon the firft leflee brings making another 

trefpafs. ^Tm^t^' 

Hakkis^ /erjtant^ moved, that he might not enter; for by his ^^^i^^'^'^ ^* 
making a fecond Icafe by indenture, he hatli difpenfed witli the 
condition. ^'m^RT'^^ 

, But i^LL THE Court i contra : for the eftoppel is only between*' wiif.TiI. 
the leffor and the f«co;id leflee ; fo as the leflbr is at large againft ,, Wcod's Coty 
the firft leflee to enter upon his condition, hotwithftanding the 307. lij. 
fecond leafe. 

Coke, Attorney General^ being in court, faid this cafe was clear ; 
but if one makes a feoffment upon condition, and afterwards levies 
a fine to a ftranger, his condition is gone. — ^Arid judgment was 
then given that the leflbr's entry was lawfuL • 

Mature againjl Weft- ^^^ <f- 

A SSUMPSIT. Whereas the defendant wis indebted to him Forbearance for 
"• in fuch a fum, in confidcration that the plaintifi" would give "" '*'*' "'"'^g'^j,* 
to him day of payment, that the defendant afliimed to pay at rationin^Siw/^ 
the day ; and aliedges, that he gave to him fuch a day, an'd that//, 
the derendant had not paid^ The defendant pleaded non djjumpjiti Ante, 19. 
and found againft him : and now moved, that this was hot a fuf- Cow^. 119^ 
ficient confidcration ; for it is at the plaintiff's liberty what day her 
will give, foas he may give the fame day wherein the ajfumpfli was 
made, if he will ; and fo there is not any benefit to' the defendant. 
^The Court held it to be well enough ; f6r it is alledged that 
he forbore it for fuch a time certain^ Wherefore it Was idjodgeJ 
for tlie plaintifF. 

Crofs againft Tyrdr.- 6\si rf. 

pRROk of a judgment in the common nle^. The etf6r af-'^ri af^trtftoi* 
^ figned was. That the defendant appeared per J. S. attornaUm ^^^^^^^^^ 
funm^ and there is not any fuch J, 5. in rerum natura. The d^fen- *"*" *" 
<iai>t pleaded i« nullo eji enatumi and fo confelTes k.— The CpuRt ^J^l *^* *' 
l^dd It to be no crrcrf for it is againft the record ; for the Court J'^J^?!©* 
hath it upon record, that he appeared ty fuch ah attorney, and the 
party is cftopped to fay t>.e contrary ; but he might have afligned 
tiiat J, 5. had not any warram of attorney. Wherefore the judg.- 
nicnt was affirfhed. 

CRo, Etiz. PART IK y y £aftef 



^ Eafter Term, 

41. Eliz* In the Common Pleas. 

Sir Edmund Anderfon, Knt. Chief Jujlicc^ 

Thomas Walmfley, Efq. '\ 

John Glanvile, Efq. I Jujlices. 

George Kingfmil, Efq. J 

Sir Edward Coke, Knt. Attorney General. 

SirT. Fleming, Knt. Solicitor General. 

CAtt % Grace Spark Ofrainft Nicholas Spark. 

Michaelmas Term, ^o,^ ^l, EUk. Roll %il^. 
^.fettto^.ibr TH^ JECTIONE FIRM^. Upon a^ial vcrdia the cafe w*, 
So'ycan, if he |^ Nicholas Spark fcifed in fee, by indenture lets it to ff^illiam 
foiongiive,with J — ' Spark for Soycars, if he live fo long ; the remainder after his 
wTdil^c to^ dcceafe to the executors or affigns of the faid fTstliam Spark for ao 
m^xeattl's^or Y^^^" fViUiofn Spark dies intcftate ; his wife (the now plaintiff) 
tifynsfor^o takes letters of adminiftration^ and enters, claiming the term. 
y<Sri. Hxsad' Nicholas Sparky the leflbr (now defendant), oufts her. Etji^^ic. 
»i''f^rMfriyti9 fhc fole oueftion was, Whether this remainder for 40 years 
^Ktod to th,» ^^^ jj^ prilliam Spark ? or, If it fiuled, becaufc he had not made 
Am^es^. any executor? 

Foft. 841. And ALL THE JUSTICES delivered their opinions fcverally, 

1.R0U.AK. 916. that this term vcftcd in fVtlUam Sparky and that the plaintiff 
t.Roli. Ab.47. fhoirld have it as adminlilratrix to him, and it fhould be aflets in 
Yciv. II, her hands ; for tlic intention of the leflbr appears, that theexe- 
VidcCo^u c^tors or afljgns of JViUiam Spark Ihould have it : fo by the word 
J. bw ftOH(l). ** aflSgns" it is intended, that ff^tlUam Spark may difpofe and make 
an afngnmcnt thereof; and therefore it veiled in him, and fludl go 
to his executors or adminiflrators as aiHgns in law, and as a thing 
which came to them from their teftator, and not as a perqulfiti 
by themfelves. For Walmsley faid, it never yet was ^ef- 
tioncd by any, that if tltcfe two terms had been in one claufe, but 
that they Ihould have vcftcd in fViUlam Sparky as if it had been 
habendum for 80 years, if he live fo long, and for 40 Y^rs after his 
deceafc to his executors : but it is here devifed to ntlliam Spark 
ibr 80 years, if he live fo long, remainder to his executors for 40 
years ;- yet notwithftandihg it is all one,, and the executor fhall 
nave it as executor, and it ihall be aflcts in his hand, it being in 
the teflator to difpofe of* And it was afterwards adjudged aC'^ 
cbrdingly. 

Note. That in this cafe Walmsley faJd, the ditfercnce 

Qlbofi voa* betwixt tliis and Cranmer*s Cafe^ in 14. Eliz. Dyer^ 309. is, becaufc 

it is there limited by way of ufe, and by the party himfelf ; fo he 

Ihews his own intent that it Ihould not veft in himielf, but in his 

executors. But here tlie limitation is by a ftranger, wherein thcr« 

is not any intention appears, but th^t it ihould veft in the leflef 

U) Vide s. c. himfelf. And by this difference all thf books are reconciled (^)* 

Anie65S. and Pod* «ia. ««*^«* 

1MM 



Eaftcr Term, 41 • Eliz, Ih C, B4 667 

Mallary a^alnft Marriot. Caibi. 

PROHIBITION for fuing for titlic-pigeons. The dcfcncJarit In Prdhibition. 
^ the court chriftian plelded payment, and offered to prove it ^"^^ ^^' 59^ 
by 01^ witacfs, and they refufed to admit thereof witliout two wit- ^^' 
nclles ; and he thereupon brought a prohibition. — And it was ^''®* J*^ **9t 
rulcd» that it well lay ; for it would be a greater inconvenience to J^^^ ^^^ 
bring two witncfles to prove payment of eVcry fort of tithes, &Ci Moor, 909. 
Wherefore, &c. 5^^ Dyert 171. In margine* x. Vcni. 191. 

x.RoU.Rep.439* 
Rob. i9$. Ray. 2f9, Canb. 244. Ld. Ray. 220. 346. ii6r. 117%. iitu 4. Bac. Atfr. »6x. 
5. Bac. Abr. 98, 99. 2. Satlk. 547. 2. Burr. 1874. Cowp. 424. 

Sands againji Lane^ Cass 3« 

Michaelmas Tirm^ 40. ^ 41 . £//2. i^o// 2483; 

*T*RESPASS. ^are averia cepit apud Stockhr'idge^ et ad Idea iitc^g- i„ trefpaft, 

fiita fugavlt^ Qc, The defendant pleaded, that Lord SanJs was where the mat- 
fcifed in fee of twelve acres of pafture m Motfern^ and he took the wr ofjoftifica- 
bcafts there damage feafant as fervant to the Lord Sands^ and by his '»<>«« trami- 
command, and from thence chafed them to S'/jrA^r/rf^^faforefaidjand d«u ntwi'^noT* 
from tiience to Fcvcrjham in the fame county, ad imparcandum^ fs'r. travtrfc the 
qua funt eadem eapt'io^ et cffugatlo^ unde^ i^c. and traverfcs absque place Jaid in thg 
HOC quod cepit a-jcrla pr^vdUfa apud SfoMridgSj pjnut, iffc. — It was «i«claration. 
thereupon demurred ; and after argument at the bar, adjudged for p^^'^^' 
the plaintiff, that theplca was ill ; for the travtfrfe is a departure from * ^ ^' 
the firft plea, and repugnant to the matter which induccth it : and ^^' ^j^- *^*- ^ 
as this cafe is, there necdcth not any traverfe at all : for where the ^j^ g^^o. 
matter of juftification is local, there he ought to fiicw the caufe ,. wnc 2/94 
fpccially, and traverfe the place ; but not where it is tranfitory, asJ k Sail:. 2904 
it is here ; but it fufficctli, although he juftitics in another place, 
to fey, quie rjl cadem capuo^ ^Ct Wherefore it was adjudged for 
the plaintiff. 

Allen againfi Sir Robert Salifbury, CAfE4, 

1p\EBT* The procefs upon the origiflial was direfted to the two Amendment 

•■-^ fhcriffs of London^ and the writ was returned by two ; tlic one 

of them was Iheriff, the other not. It was prayed, that it might ^^^1*- 4*5- 

be amended \ for it is apparent to tlie Court, that it was the dc^ i.Com^Dig.jiii 

fault in writing the names ; and the return bj' one fhcriff alone had 

been good, and the addition of a ftr^inge name tlicreto Ihall not 

make it ill. — ^And afterwards^ by advice of all TriE Justices^ it 

was amended^ 

See 1 3. £Uzj c. i^ 

Meryweather agdinjl Stafttohrf t^s, ^i 

Mickaelmas Terniy 40. ^ 41. £//«. Roll 3316. 

"D EPLEVlN. The defendant avowsf fof a rcnt-chargef Jevific! Avtfwvy ftn- at 
*-^ to him, and doth not alledge the land to be holden in fo- '*"^-^^»'^«'^f 
cage : and therefore adjudged to be ill. And Jt was feidy thatt fo it ^^ f" rV** 
wag adjudged m Trevihan i Cafe in thiS court (a). in focagc. Sed 

vide 12. Car. «. e. 24^ J. Com. Vl^ ^ 
\fy S«e if.Geo. «. 6^19^ f.94. 

Y y 5» Sir 



In pergonal ae 

tions, 

ypon 



668 Eaftcr Term, 41.EIIZ. InC.B.' 

Casi 6. Sir Humphrey Ferrers, and Two Otliers, againjl Ar^cn. 

Mkhatlmas Termy 40. ^ 41. Elix. Roll 1701. 

Trw»vcry TTRESPASS upoti the cafe «pon trover and convcrfion of an ox 
demurrer, ^* of the plaintiff's at j(/hion^ the ioi)\Ju7te, 38. Eliz. The de- 
confeflion«or ^cndant pleads, that at another time, viz. Rafter Term, 36. Elix. ia 
tcrdia, is afear t|^g queen's bench, the plaintiffs, and a fourth perfon who is novr 
TCTfoMl a£Hon ^^^' brought trefpafs againft Simon IVignal and two others, of 
for the fame their OX taken i ith ApriU 35. Eli'z, ; tliAt tlie defendants thercta ap- 
caufe-, and the pcared, and juftified as for an heriot in right of the now defcn* 
party has no re- dant. Upon which bar the plaintiffs demurred, and adjudged 
«rrof^or"atuint ^%^^^^ them, and pleaded all the record in certain ; and avers, 
error or a ai . ^j^^^ ^^ plaintiff in the faid aftion and in this aftion arc one anrf 
S. C. 6. Co. 7. jijg ^^j^^ pcrfons ; that the ox in the faid aftion and in this is one 
ifsaund. 01.08. *"^ ^^ ^^^"^ » *"^ ^'^^^ ^^ taking in tliis and in the other aftion arc 
Lut. 1410. * ' all one ; and that the trover and converfion, fuppofed in this ac- 
4. Co. 94. tion by tliis defendant only, was committed by the other defendants 
Cro. Car. 36. ^-Jth him, and they have covinoufly and fubtilely omitted, aod 
^^U d^ ^^^^ them out, and not named them in this aftion ; and tliis dc- 

1! Leon. Vij- f^r^da^^ was omitted out of the other aftion fubtilely, they being 
3. Leon. 194. one and the fame trefpafs, thing, and matter, and not divers, and 
3. Burr. 14x3. at one and the fame initant of time done. Et hoc paratus eji vcrl^ 
^'^^\f^^*^^' fi^^^^y unde^ex quo^lsSc. They were acquitted in the nrft aftion, and 
^! Bl.*Rep%'7o. ^^ demands judgment. Whether the plaintiffs to this aftion of tlic 
831.* * 'fame matter and caufe fliall be re'scived to have and profecute ? 
And hereupon the plaintiffs demurred. 

Walmsley and Kinusmil held the bar to be good ; becaufc 
upon thefirft judgment, upon demurrer, the property oftlie ox was 
admitted in that defendant, m whofc right thejuftincation was ; there- 
fore the plaintiffs Ihall not have this aftion without new caufe: and 
although he be a ftranger to the record, whereby the plaintiffs were 
barred, yet he is privy to the trefpafs ; wherefore he well may plead it, 
and take advantage thereof. And hereto the other Juftices agreed, 
that if it be intended for one fame caufe, that he well might take ad- 
vantage thereof. — But Anderson and Glanvile conceived 
here, that they were not barred ; for a bar in a wrong aftion brought 
is not any bar, where a right aftion is brought ; as where one 
«,,Vcm 169* delivers goods to keep, and brings trefpafs againft the bailiff for 
thefe goods, and is barred by verdift or demurrer, that ihall not 
be a bar unto him in bringing detinue •r accompt. And here 
thefe aftions are of feveral natures ; and a bar in tlic one cannoT 
be faid to be a bar in the other. — Walmsley agreed, that where 
it is a bar in an aftion of t;-efpafs, upon not guilty pleaded by ver- 
dift, he may have this new aftion ; becaufe it appears not but that 
the verdift was t>pon the mifprifal of the nature of tlie aftion : 
fo it is, if filch a cafe appears upon demurrer : but where a title is 
#p Co. 7. «• pleaded in bar to a thmg demanded, and by rcafon thereof the 
plaintiff is barred upon demurrer or verdift, the intereft tlicrcby is 
bound, and the plaintiff iliall be barred from bringing a new 
aftion. — Ei adjournatur.^^hwd afterwards the matter was ended by 
arbitrament. 

Farman 



Eafter Term, 41. Eliz. In C. B. 669 

Parman agmnft Bowyer. Ca-i 7^ 

Hilary Term, 40. Eliz, Roll 259. 

pEPLEVIN. The defendant avows for damage feafant in his ^ 0^»«^ ^"f- 
-^ freehold. The iffue was upon the freehold ; and a fpecial ver- X^;^^^^ '^^^ 
dift was found, tliat this land is within the manor of ForcheJlcr\ cop>hoM rhail 
and that within the manor is a cuilom, that if any tenant of the be prefented at 
manor aliens lands holden of the manor by writing or feoffment, tHe next court, 
or devifeth it by his will, or furrcnders it into the lord's hands, to °g^'^*|J''" *. 
the ufe of any otlier, that fuch alienation, feoffment, devife, orn**['gQy*j'^f^^ 
iurrcnder, pruefeniata fuenmty et pnefcntari confueverunt at fome the year, is a 
Court of the manor there hoidcn, within a year after fuch alien- good cuftom. 
ation, feoffment, &c. or at the next court of the manor there 5. Co. 84. a. 
holden, after the year; and if fuch alienation, &c. were not pre- Co. Lit. 61. a. 
fen ted inftrma pnedl^Oy tunc hujufmodi alienatio, ^c. Jtc minimi pra- ^ ^' ^* 
fentat, fhould be void by the cultom of the faid manor. And tliey ^*. Bo'lft. iV.*''' 
further found, that one Richard Rowle was fcifed in fee of that land, 218. 215. 
ho] den of the manor, and made a feoffment of that land to the Cro. jac. 403. 
defendant; and that it was not prefented within the year, nor at ^^*'* '♦J-l 
the next court holden for that manor : and, Whether this were a cowp!^!,^' 
good cuftom, and the feoffment thereby deftroyed for not prefent- 
ing of it ? was the queftioh. 

And although it was not precifely found that a court was holden a faa omitted 
there v.-itliin tlie year, or attcr the year, yet the Court held it »« a fpccialvtr- 
to be well enough : for it is found by implication, being found ^*^» Supplied 
that it was not prefented at tlie next court after tiie year ; which ^ »'"P''*»^"*^ 
implies, that there was a court there holden; and this is fufficient in ^'Jj^^'j^* 
a fpecial verdift. And if there were not a court holden, &c. then ' 
an attaint would lie. 

As to the cuftom, Anderson held it to be void, unrcafonable, 
and againft law ; and therefore not allowable. For here it is, that 
it was a good feoffment for the time, and that afterward becomes S* C** *4* ^* 
void by not prcfenting it. So where it was once good by the com- 
mon law, it (hall be now deftroyed by the cuftom, and divcftcd 
for tlie non-prefenting it. And it^ould be a greatmifchief if tlic 
court rolls fliould be loft, fo that the prefentment could not be 
proved, that the feoffee fhould lofe his eftate ; and that it prc- 
fcntly Ihould be void for not prefenting it, witliout any other aft 
done, is unreafonable, and againft the rules of the common law. 
Wherefore, &c. 

But ALL THE OTHER JUSTICES. held it to be a good euftom, Plowd. 30a. h». 
and well allowable and agreeable to law ; for it is good reafon, the 
lord Ihould know his tenant ; for otherwife a feoffment may be fo 
fecrct, that the^lord nor others fhould know who was the tenant : 
and this being a port-town, it is reafon, that it fhould be pub- 
licly known who be owners therein, that they may be charged 
with the defence of the vill ; and it- is not repugnant to law to 
deftroy the livery which created the eftate without other aft done ; 
for the livery is for the public conufance thereof, and this prefent- 
ment is for the better public notice thereof; fo it is a corroDoratioi> 
to the law, and well ftands with it ; and fhall defeat that feoffment^ 
^f it be not fo prefented. And although the livery be defeated, this 
nuy well be by fpecial cuftom : as the general cuftoiu of tlic realm 

Y y 3 _, i»» 



670 * EafterTerm, 41. EUz. In C. B. 

PAtM^K is, that a fcofFment caufa matrimonii pr^lci^uti fhall be defeated by 

iflsyifi' marrying clfewhcre ; lo a freehold, veftcd in the heir, (hall be di- 

vcftcd by the executors fale thereof, by virtue of a will: fo a kafc 

Ante, 640. {qy years upon condition to have fee, otherwife but a term ; if 

Co.I-it. 220f . ^j^g condition be not performed, the fee returns without any other 

aft doing. So by the cuftom of London^ baron and feme fell 

the land of X\\t feme by indenture, it Ihail bind Xhc feme as well 

as a fine. So, by the cr.llom there, a dcvife of lands is not good, 

(ir*.5,Com. unlefs it be inrolled within a certain time(^). So, by cuftoniy 

P^ J95» a freehold may be transferred from one to another without livery ; 

fo it may be re-vefled or defeated by cuftom, without doing any 

other aft. And therefore it was adjudged a good cuftom in IVey- 

fnoufhy in the county q{ Dcrjct^ where the cuftom of the vill was 

(being a port-town), that afcoffmcnt there, unlefs it be made in 

the prcfencc of fomc of the matters of the vill, fliall be void, was 

adjudged to be a good cuftom. So here this cuftom adds here . 

more than the law appoints, vi%, that there (hall be a prcfentment 

thereof: wherefore it is good, and ftands with the law. And af- 

{h) 5. Co, 84. tcrwafds it was adjudged accordingly {b). 
%, C. accord. 

Case 8. LcCch Hgilinft Colc. 

Trinity Term^ 40. £//«. Roll 1703. 
«ferr"ma^ndcr TT^ON demurrer, the cafe was. Tenant for life (a), remainder 
to his eldcil fon to Iiis eldeft fon in tail, remainder to his fecond fon in tail. 

in uii, remain. A fracife is brought againft the tenant for life, and the eldeft fon, 
licrtohia ^y^^^ 12. Eliz, and they fuffer a common recovery, with vouch- 
ta^r^Thc «? ^"g ^ common vouchee. The eldeft fon dies without ifluc: and, 
rant for life and Whether this recovery fhall bind the youngeft fon by the 32. Heti. 8. 
the tideft fon p. 34. ? was the queftion : or, Whether it were a difconti nuance ? 
i\iiref arcr ^ ANDERSON, Walmsley, and KiNGSMiL held, that it is not 

S\auT * blr^thc ^^^y ^^^ ^^ ^^^ ^^^^^ ^^^^' ^^^ ^^ ^^^^ remainder; for the land 
remainder to th« ^^^^^^^^^ ^^ valuc fhall be in the famo depjree as the land loft 
yoorgeft fop, is > for when a joint prtvcitc is brought againft tenant for life and 
i^ntc, II. hiin in the remainder, it luppofcth them to be joint-tenants ; and 

Poft, ?a8. xh^ judgment fhall be accordingly ; and the recovery in valuc fhall 
».Ro. Ah. aor. ^^ according to the aftion. Whereupon he recovered in valuc 
\i,. Co. 6. b. ' jointly, and fo fhall the execution be aho ; and then the recovery 
hyer, 252. in value bcini; accordingly, it is in the fame degree as the cftate 
Moor, 255. ^ ijjji ^r^^r^ . ^t^j fQ Y\o bar to tlie iftiie in tail, nor to the remainder: 
*^'r Ah^S6E ^°^ ^^^ ca\ifc of the bar is the alfets recovered in value; and 
p.^oton Kcc. none ihall be aci:nittcd to fay, that the aftcts recovered in value 
3'. fhall go in other manner or degree, thnn the record is: as whc^e 

*. Salk. 568. a recovery is had aiyninft a mortg''fj;or and mortgagee, with a 
Sh:p. Touch, voucher ovrr, or againft a lord and his villain, the land recovered 
Cruifcon Re- '"^^ valuo fliall go to both jointly ; and although thefc recoveries be 
cov. iro. but a/Turanccs of cftates, yet they ought to gq, and to be regarded, 

j.T. Kcp.738. according to the law. And the ftatute of 32. Hen, 8. c. 34. fhall 
not make any alitration in this cafe; for Walmslky faid, al- 
though the uatute if?, tliat a recovery which is by the aflcnt of 
him in remainder fhrjl bind ; that is to be intended a lawful aflcnt, 
pr in a lawful manner, as by voucher or otherwife ; but not by 

{4^ By i|. Gso. 2, c. 20. rdCOTCries H^ b^ good withqut ihfi fqrrender of the leflTee 
fp^ lire. 

aAioi^ 



Eafter Term, 41 • EUz- In C. B. ^7 J 

iftion brought againft him as tenant, where he Is not tenant ; that ^»»f « 
is an aflcnt, but not a regular affcnt, nor fuch as the ftatutc in- 2^1!; 
tends. — ^And Anderson denied the cafe of Ear v. Snow, Pkw- 
deny 504. to be law ; and yet, there where one who hath nothing, 
joins with on« who is tenant, he is but tenant by eftoppel ; and a 
tenant by eftoppel fliall not draw a recompence in value. Where- 
fore, Sec 

Gi-ANViLE € Centra, The recovery is a good bar ; and tins cafe 
i$ all one with the cafe of Ear v. Snow, which was adjudged by 
good advice. Vidt Dyer, 252. And although the cafe of Sir fFil- 
iiam Cordal {b) is cited to the contrary, that is not fufficient to 
controul fuch a judgment. ^ ,j , . 

Afterwards a rule was entered, that judgment ihould be entered 
according to tlie opinion of the three Justices. But the parties 
accorded, and no judgment was entered. 

{b) Alxm, 315. S. Co. 96. I. Jones, 15. Dyer, 151. 

Knot and Knot (Executors of Knot) againft Barlow. Ca»i ^ 

Eafter Term, 40. Eliz. J^oll ig^^. 
TNEBT on an obligation made to the tcftator The defendant A^^^^^ 
^ pleaded a rcleafe made by one of the plamtifFs. The plamtiff ^^^^^j^ .^ 
replies, that this releafc was made without any confideration ; and ^^^^ 
he who releafed was within age at the time of the releafe made.— It Am«s 43- 
was thereupon demurred; and adjudged for the plaintiff, that it 5.co.a7.b/ 
was a void rcleafe ; beiog by an infant without confideration. Moor, 146. 

X. And. 117. «. T. Rep. i59» 

Knight a^ahft Lodge. Ca« io. 

Hilary Term, 40. Eliz. Roll 607. 
r^TPTTTONE FlRMiE of a leafemade by Edmund Nevel, who inaaSons 
E^c^ShhSf ArX.W. The defendant pleaded, that long w^i^^ 
time before the Icffor of the plaintiiF had any thing, queen Mcry ^g,^;.,,, i„ 
was feifed thereof in fee injure corontefua Angltajind by her let- ,he dtdamion* 
ters patents gave it to Sir Thomas Ha/iings znd JFimfred his witc, w««neodbe 
and To the heTrs of the body of mnifred-, X^tSrr '^J^f'-V JX^oif. 




Barringtm let it to the Icffor of the plaintiff for Hfe, who •«»» to „„,„«, or 
the plaintiff; that afterward Sir Thomas Bfrrmgton died ; and that ^y*» ™^ 
theSefendam. as fervant to the f>'d. W-'^. entered, and o^^^^^^^ 
the plaintiff. Et hoc, Hfc, The plaintirf^rephes, that the Icffor of ^^ ^^^ 
the plaintiff demifcd unto him for years, front, t£c. ; and that tne p^^. ,j,. 
defendant ejeacd him ; absque hoc that S,r '"^'^^Bf7"!tZ u 
let to the Icffor for life, prout, i^c. And hereupon the defendant Poph. i. 
<lemun«d ; becaufe he takes a traverfe without making any utle, Fort. 37«. 

and without any inducement. , c .x :i c j,«* i„»i. 

The Court held it to be well enough ; for the defendant hath 
avoided the plaintiff's title : and the plaintiff travcrfeth the chief 
matter, which avoideth his title ; and it is not neceffary to^makc a 
title in an tjeetiont firma, or in trefpafs : but where hnd is de- 
manded, it is othcrwifc. Yet the better way had been to fay^ 
that he Was feifed in fee, and demifed,&c. But it is urcU enough 

«iti«- Yy4 Veat 



f>n Ejiftcr Term, 41 - Eliz. In C. B. 

Caii x2. , Veal and Others again fi Road. 

MUkaelfnas Term, 39, ^ 40. Eliz. Jioll 1 187, 

A tenant ;> tail Q^^^ JURIS CLAMAT. Thc defendant pleaded, that he 
fi/ter p^flihility^ ^^S^tempore levationls not it prad'Ula was feifcd in fee of the gift of 
&*c. is not in- j^^ j^^ ABSQUE HOC (juod ipfe tempore levationis mtie pradiilie held 
tKe^drfcr^^^^ ^^^^^^^^ pradiBci pro termino vUrefua tantum^ bfc. And thereupon 
ei teLlJJ- life- ^^^y wc^^ ^t iffne. / It was found, that he held them as lands en- 
1. Ro.Rep. 175. tailed, after polTjbility of iffuc, &c. And hereupon they prayed 
Noy, 74- the difcrction of the Court. — ^The Court refolved fqr the dQ- 

u. Co. 80. fendant ; becaufe it appears to the Court, that thc defendant hatli 
(a) i.Vcnt.306. an eftatc privileged from attornment (^), to be made by him : and 
a Saund. 3SJ. the inducement of the travcrfe is not any f:aDfe of forfeiture. 
p«. Lit. 28. "Wherefore it was adjudged for the defendant. 

Raj. 38. 24^ J p 

Ca$i u. Morris cgainjl Lutterel. 

Ettjier Term, 40. Eliz, Roll 1 304. 

It IS no plea to T^EBT on an obligation, conditioned for faving harmlcfs 
<>ibtcnbond, ^-^ from another obligation rnade to C. and //.* for the payment 
fhatasbcwas pf lool. at a day and place, &c. The defendant pleads, that at 
he^^arpnf^ *'' ^^^ ^^y of payrnent, he was going acl folvertdum thefaid lOol. to thc 
vented by the place, to the ifaid C, and H. and that the plaintiff, by covin betwixt 
covin of ti.e him and another ft ranger, cjiufed the defendant to be imprifoncd, 
plaintiff. and to he detained in prif^n until alter funfet of the fame day, to 

Poft.694. 997. \\^^ intent the faid lOol, fhpuld not be paid ; and diat thc obliga- 
i.Bac. Aip^5<>- tion, \ff reafon thereof, fhould be forfeited ; and therefore he could 
'•;^ "' not come to the faid C. and H, to pay them the faid lOol. Et 

5. Com#Qig. i>0(-'^ ^c. — It was thereupon demurred ; and adjudged for the p}2^u* 
«55. tiff, that fv^ch a bare furmifc was not any bar. 

Case 13, Scryvcn againjl Dyther, 

Hilary Term, 4 1 . Eliz. Roll 1721. 

«jcriff*s bjjwL T^EBT on an obligation made to a Iheriff, conditioned, 
.Ante, 6*4. -L/ (c ]f ^i^g fj^l^ j^ Dyther perfonally appear before tlie queen's 
Poit. &c8. It majcfty's Juftices at IVeJlmtnJler a die Pafchet In quiftdccim d'tes^ 

10 Co. loT " ^^ anfwer to J, Hu?it as fhall appertain, and further to do and 
IiYipcySh. 1x5. ** to receive as the Court therein pf him Ihall confider in that 
a. Ld. Ray. ** bclialf, timt tlien, Sec." The defendant pleaded thc 23. Hen. 6. 
la^*:' c. 10.' — And the bond was adjudged to be void. And it was there 

^^'J^^^^\ cited, that in Sir miliam Drurie's Cafe (a) it was adjudged, thj^t 
A. . «p- J 9- jf ^ ihcrifF takes but one furety, it is good enough. 

(a) Recited 10. Co. 100. b. 

pAs» 14? Slade againft Allen, 

Hilary Term^ 41. Eliz. Roll j^o. 
Words a^\:cn- A CTION for thefe words : ** Thou art a murderer, and a bloody 
»bie. -^^ u fellow, and 1 a mafr^id of thee."— -Upon demurrer, adjudge4 

aftionablc, 

Anonymous. 



EafterTerm, 4i.Eliz. InC.B. jS7j 

Anonymous. . JCAS115. 

A CTION for words : " The plaintiff was one of them that Ambiguoos 
*^ *• brake Mr. PhilUps^s houfe, and did take and carry away flindcr mall b« 
•* part of the money tliat was ftolen." — Walmsley held, that apoundcdi* 
an aftion lay not for thefc words : for where words are ambiguous, mthonfcnju^ 
fo as they may be expounded in good or ill part, no aflion then Baoon't 
lies ; for they (hall be expounded in the beft fenfe ; and it may be Waximi. 
here intended, that he brake the houfe upon juft caufe, and 
brought the money to another place upon juft caule. Wherefore, 
2cc. And fo was the opinion of th£ other Justices. 



Stephens agatnft Lewis. 



CAfi"x6. 



A FINE was levied of a rent to the ufe of another in fee. Thtajlmm 
'^^ Cejiui que ufe avowed without attornment ; and ruled that he «/« of a rent 
well might (fl). — Exceptipn was then taken to the avowry, becaufe may avow with- 
he pleaded that J. S. who was the grantor, was feifcd of the •"t*"^"^^» 
rpnt in fee ; and that he and all his anceftors had ufed to diftrain ^^^^ j^ ^1^' 
for that rent in the faid land, &c^ and fo prefcribes in the diftrefs, difreJtuA not 
and not in the rent itfelf. And for this caufe Anderson and in the r«»/, it if 
Glanvile held clearly that the avowry was ill ; for the prcfcrip- ***^» 
tion ought to have been in the rent : and that the law was clear 
herein. — Williams, ferjeanty cited a cafe 14. EHz. to be ruled, 
that a prcfcfiption allcdged in the diftrefs was good. 

U) See 5. Aaa,.c, x6. and 11. G«o. 2. c. 19. by whlfh tfac^nccdfity of attornment 
If taken awa^. 



Trinity 



^H 



Trinity Term, 

41. Eliz. In the Queen's Bench* 

Sir John Popham, Knt. Chief Jujlice^ 

Sir Francis (jawdy, Knt. •% 

John Clench, Efq. > JhA^ccs. 

Edw-ard Fenner, Efq. ^ 

Sir Edward Coke, Knt. Attorney General. 

Sir Thomas Fleming, Knt. Solicitor General. 



Cjut s. 



Woodden agalnjl Oiboiirn. 



^^.^ Tn^JECTIONE FlRMiE. A fpccial vcrdia wa$ fotini 

r*4 wherein the cafe was, One Bi/hop being feifed of divers 
Ante, 476. (5S. * ^ lands called Hayes-lanJsf which extendi into two vills, 
t, Leon. 216. Cokeficld and Cranficld^ devifed all bis lands in Cokefield^ called 
3. Leon. 77. Hayes-landsy to 7. his youngcft fon, and his heirs ; and after, 
c^.Tc.iV.* ^^} another part of his wUl, he willeth, that if J. his fon 
1. Vein. 4*' ^icd without ifTue, his wife fhould hzst Hayes-lands \ and dies. 
j.Com.Dig.iS. y. dies without iffuc : aind. Whether the funi (hall have Hayes- 
Cowp.zr^9.4ic. lands in Cranfieldy or only that in Cokefield? was the oucftion.— 
And it was refolved by the whole Court, that (he mould have 
that only which is in Cokefieldy becaufe there was no more devifed 
tothcyoungeft fon.— But Popham faid, if the devife had been 
to the eldeft fon, and that if ho died without' iflue, tliat his wife 
fhould have Hayes-lands ; there peradventure (he Ihould have all, 
bccaufc the eldeft fon had all ; the one part by devife, the otiier 
part bydefcent ; and (lie (hould have all which he had. — Where- 
fore it was adjudged accordingly. 



Case a. 



Nokes againft James. 



c mfs CO- T^EBT on an obligation, conditioned for the performance of 
vcnam that the ^11 covenants and agreements in fuch a Icafc by indenture ; 

jcflcc ftiail not whereby the defendant had let to the plaintiff, by the words rfr- 
heeviaedby mi fe tind grant ^ an houfe in London \ and covenanted, that he and 
$h9 lejptr^ Will Yiis afligns fhould enjoy it without eviftion by him, or any by hi* 
pned°cVcnVnt' P^°^"^^"^^^^- '^^^ defendant pleaded performance of covenan» 
arifing from the generally. The breach was anigned, for that the plaintiff bad 
words dimi/t granted his intercft to one jf, and one Savery entered upon A* and 
^nd^rMnt. j^j j^jq Qjjg Duck forycars. jf. re-enters ; Duck brings an (/V^/w' 
Ante, 214. ^,-;w^, and recovers 'by verdift. Wherefore, &c. Upon this 
4, Co. 80. b. breach afligncd, it was demurred in law. 

J. Saund. 6q. God¥ vl^ls /for the plaintiff moved, that the fole quefl ion was, 
Vqo. Dig^'560. Whether tlie defcudaut be bound by the covenant ia law (which 

l.Wood'&CoA. 399. 4^^* * 



Trinity Term, 41. Eliz. In B. R. 67^ 

h by the words iiemi/c and grant J to warrant it againft all pcrfons ; Nokib 
CT tiiat it be taken away by the exprefs covenant, " That he Ihall i»:ai»fi 
•• bold it without eviftion of the leflbr, &c." And he held, that he J^**'«* 
W5S bound by the covenant in law, that the leflee Ihould have his 
adion of covenant upon eviftion ; as 9. Eiiz. Dyevy 257. And fo it 
was adjudged in this court in Cheyney v- Langley. And this is nottaken 
away by tlie exprefs covenant, vide ^i.Edw. !• ** Foucher'' 289. — 4. Co.S«. i« 
But Foster, not being of counfel in the cafe, put the Juftices 
in mind of one Hammond's Caje in tliis court, to be ruled that an 
exprefs covenant fliall take away the covenant in law. — And to this 
opinion PoPHAM inclined: but the other Justices did not 
uciiver any opinion therein. • 

But they all held tlie breach to be ill ; bccaufe it is not averred pieadln;. 
that Saver y entered upon a good title ; for otherwifc, there is no 
caufe of adion. And although it be pleaded thdt Duck recovered ^"\%T'*'^' 
by verdift, yet that is not material ; for it may be upon falfe poft. ^i^ 
vcrdift, and without title. Wherefore they all refolved, that 4. Co. So. 
judgment fhould be entered accordingly .-^But it was then prayed 
for the plaintiff, that he might difcontinue his fuit; and fo he was 
permitted. 4. Co. 80. 

Collier's Cafe. CAts %i 

PROHIBITION hy Collier, vicar of BromiUy to (lay a fui^ in the A penfloA 
•*• fpiritual court. The cafe was, The church of Bramble in claimed by thqt 
t}:c time of Henry the third was appropriated by the bifliop of ?[^"^^^, 
Sarum^ and the vicar was then endowed. Upon the endowment, mcncingbx hi» 
the bilhop made an ordinance by thcfc words : ** Statuimus et ordi^ jram, nwy be 
" namust that the vicar fhall pay annually 20I. defru^ibus vtcarta ^"««* ^^^ *" ^^ 
'' to the precentor in the church of Sarum, to the ufe of the vicars %''^^l^^ 
" f^^r^?/ within the lime church." For this penfion a fuit being •' 
depcncing in the fpiritual court, and a prohibition thereupon 2.lnft.4S7.49i. 
brought, confultation was now prayed; becaufe it is a "[^ere ^^' J^*^ *'^* 
penfion fuabic in the fpiritual court. Ti.i7<?«. 4. 85. /7/zA. *, sho^.'^y. 
iV. 5r. 51. i.Vent. I20. 

Tanfield ? contra. It is an annuity, and annuity lies properly 265. 
for it in the king's courts; and in proof thereof was citcjd *• ^*J*j '4^* 
19. Edv:. 3. " Jurijdiaion;* 28. that annuity lies for a penfion by c^b'^X 
prefcriptlon ; and that the ftatute of C'lrcumfpe^e JgatiSy " Prohi^ j, Lev, 251', 
hltlorty'' ^, is but an ordinance, as there it is laid, bo Edw. 4,. pL 12. 
of an annuity granted for compofition for tithes ; and ao. Edw. 3. 
" Jnnuhy* 3a. a writ of annuity was brought for fuch a penfion 
as ours is. VVhereforev &c 

But ALL THE Court refolved, that the fuit was well brought ia 
the fpiritual court. — Popham and Fenner faid, that there would 
be a difference ; where the ordinary ordains fuch a payment a^ 
judge, there the fuit Ihall be in court chriftian ; and where 
the patron and ordinary make a grant in the time of the vacation, 
for there they charge as an intereft. — And Gawdy faid, that for 
fuch a penfion fuit might be either in this or the fpiritual court; 
and that it is not denied by 20. Edw. 3. and fo is F, N. B. 51% 
—Whereupon confultation was granted {a), 
(4) Spe tbe caft pf J>r,Goecitt 9. th 9i/h9f of Ijw^, 2. Strange, S79. in point. 

Sparkt^ 



';6 Triaity Term, 41. Eliz. In B, R. 

cah 4^ Sparks' Cafe. 

^ '.. iffTcf oc a r* JECTIONE FIRM^. Upon a fpecial vcrdia it was fonnd. 
c r>hjider may H- i^j^^ ^ copy holder made a Icaic for a year, excepting one dav, 
rnafcaft ai^w! ^'^»^^^ ^^^ Warranted by the cuftom. The leffcc bejng oufted by 
« by the cuf- SI ftranger, brings an ejceilone firm^e : and. Whether it lies or not ? 
t n». was the queftion. — And all the Court held clearly, tliat it well 

.lie, 224, lies. — PoFHAM faid, if there were not any cuilom, yet it fliould 
i**tt -''I'^^iS ^S^^^ againft all but him who had the inheritance, and the free- 
• 7«7' 7a • jj^ij^ go [^ i^^ jf ^ \^{kQ for will at the common law had made 
4. Co. 26. a lea ie for years, ^uod Ga\vt)\' cortcrjffit : for the tenant at will 
Cr..7»c^ ci. '^ ^"^y diffifor, and the Icafe is good againft him; as 12. EJw,^. 
CLis. rwi.n'3, f^' J2, is. — Fj vner faid, that anciently an ijceiiMe firm^t was but 
»i4. 231. in nature ot a trcfpais, and no term was recovered ; and therefore 
it is not re.fonable but that it Ihoold lie for the lelTee. — But Pop- 
ham faid, if a copyhold.be granted for years by copy, he (hall 
not maintain an cjctl'ione firmar at the common law. Wherefore^ 
ice. — And afterwards it was adjudged for the plaintiff! 

Casi 5. Withers againji Drew. 

Eafter 7erm, 40. Eli'z, Roil 

^ a^ard made T\EBT on an obligatiGiv Upon a fpecial verdift the cafe was, An 
w lie nk:hi of -*^ obligation was endorfed to Hand to the arbitration of four arbi- 
IHv^ «Iid^' Orators, fo as the award be made in writing, ready to be delivered to 
i:on«i 10 bcdc- ^^^^ parties before the fixth day of January then next following. The 
liv^'-ed, h good j arbitrament was made the fifth of January^ betwixt tlic hours of eight 
hu- not if it and nine in the night : and. Whether the defendant be bound to 
^h^*/^"™ *^ perform it or not? was the queftion.— After argument by Flem- 
«:l^?;l>ing"/)!!I ^^^'' ihr ^uetns SoUdicrj for the pliilntiff'y and by Tanfie^D, /er 
l'-}.rr i Che ^^^ difcndiwt^ THE Court rcfolved, that it was well enough for 
ftibirration; OL- the time; and that the defendant ought to perform it; io\\ti^ 
opt, if there l)c made before the fixth day. And although it be made in tiie night 
! ^''li'^ulTt'r ^^ *^^ ^*^^ ^^y' ^^ ^^ ^'^'* enough ; for things done in the night, 
tstiiwy^rc V'l-^re pcrfonal attendance of another is not requifite, arc good; 
« •;< •nd ihc 1-^t herc is not any prrfonal attendance ncceflTary, but to have 
^ ••'• notice of tlie arbitrament given him ; which may be at any other 

-rkiiX, 4*3. day after being demanded and delivered. And an arbitration is a 
judicial aft, which may be* well done in the night; and one 
i>prirrou'\ Cafcy 33. /tV/z. was riled to be ruled accordingly. 

h'ut afterwards, upon another day, T a kfi eld moved another 
e\C'-ption againft the arhitranicht, That it was of a thing out of their 
fMb:!i:flion ; for the fuhmillion was about an inclofure between 
Bnrton- Dozurt nnd North-Down^ and tlie arbitrament was of an in- 
tlolure betwixt the defendant's down and the down of J. S. and 
it is not averred that they be all one ; and then, although the 
iffue was ''^ uhI tie! nrhitramcnt,'' yet the breach not being well 
affigned, there cannot be nny judgment for the plaintiff.— And 
this was held to be a material exception by Clench and Fenn'ER* 
Ctrtfris Jujiitlariis ahjhitibus. ^\'htrcupon the judgment was flayed. 

Sir 



Trinity Tenii, 41. Eliz- In B. R- ^7^ 

Sir Richard Lewfon agalnp Redlefton, ^-^^^ «• 

pRROR of a judgment in the common pleas, in trcfpafs of bat- a writ of en- 

First, Becaufe the writ of the roll of enquiry of damages ^^^^^i^^jii^ 
was awarded to the Iheriff of London in this manner: ** ^^^^ Poft, 70a. 761. 




it was moved, that the writ was good; and therefore the roll b.r.h. 3,4. 
ihoold be amended {a). But it w^s held, that there was not any 3« Wod. xxt. 
caufc ; for the w^rit Ihall oftentimes be amended by tlic roll, but 
not e converfo. ** Ctt/aftnf.ilt 

A SECOND Error afligncd was, for that thcwritis,^r<rf/^<f, fffr. ftaii refer to oc 
aid Inquirant per fact amentum prohorum^ isfc. de dv'iiutc pradil^ay ^}*^ ri^^^ m 
2nd taere is not any mention of any city before. — J3ut it was ncld ' * 
to be well enough ; for it refers to the margin : and it is fome- 
tnics de crSitatCy fometimcs d£ balliva. Wherefore tJie judgment 
Has affirmed. 

(«) See 4. U 5. Ann, c. i6. 

Arundel againft Arundel. Cacs^. 

Trinity Term^ 40. EUsc^ 

T7RROR to reverfc a fine levied 21. £/rs, — Tanfibld afligncd i" taic'mj a £hb 

three errors- — First, Becaulbtiie writ of covenant whereupon ihc i/<-AMt.i ii 
it liTis levied bare tejie the f<:cond of January^ 21. Eli%. and the f(|)J^' bS'^ • 
ddimus poteflatem to take the conufancc bare date the fame fccond ^u, and'tiu/ 
day of January^ reciting quod cum breve conV£ntio7ns pendet^ i^c. it 5c dircdtsi -.» 
whereas it was not depending until the return, which was OdIaL -^^ ^-knSgiu 
HiilariL Fide li.Hen.i, pL 5. and 2. Ediv,j^bL 11.— Secondly, ^^I'^^J^^; jj ; .'; 
Beaufc the wntofdedimus pete/iatem was directed Rofrero Afunwood ^'. wrklotc 
miiitiy whereas he was not then knighl ; and tliat was now con- dcprnding ; :.. j 
tellcd by pleading in nullo tfl erratum. — 'I'hirdly, Becaufe the ^c *»ncw i. i».- 
concord is entered to be made before tliree Juilices of the common ^°*^ ^*;':^ 
picas, whereas Roger Munwood was tlie fourtli Ju(lice tliere, aixl ^JIcb^^'^^i^^, 
not named. ting the oth.. 

But on the other fide it was thereto anfwered, First, That it Ante, 275, j^ti. 
was not error ; for tlie writ of covenant is pendent when it is pur- r. Roi'. au;. 
chafed. Vide 9. Hen, 6. pL 54.— SicoKDLY, That it is contiary 757- 794- 
to the record, and it cannot be afUgned for error. Dscr^ 89. — c* v^o^'* 
Thirdly, That it is not error ; for a fine may be levied before y^i^; / *'^''' 
three Jufticcs {a)y omitting the fourth. Wherefore, &c. 5. Ca.^;.^ 

Gawdy and Fennep. only in court held as to t\\Q Jirji^ that it Crcjac! l^. 
vas not error; for the writ is^ pcidcnt piefcntiy upon the purchafc '• '^^^^ ^•»"* 
thereof: for if a ftranger purchafc the land before the return **^^^' 
thereof, it is champerty, as 30. Edw. 3. is. So lO.Ediu.^, pi, 13. co. Rsod^i*. 
if an appeal be purchafed within the year it fuSccth, although it Dyer, n^. 
he not returned within the year {b) . "Fo the other two errors they ^'^p- *^- v 
ipake not, nor feemcd much to rcj^Lrd them, — Etadjowmtur. " ^"t"'^- «" ^ ^"«s 

(«) vide 4. Km, j. c. i. of Fines ; 23. Mli%. e. 3. f. 1. and 10. & it« Will. 3. c. 14* 

(i) The'iUy of futng forth a. writ is the eommcBCcm^nt ofth« ftiit. 3, Btpr. 14 tj. 
t* Uavk. 191* Ld« Raym. 477. 

Madox 



478 Trinity Tercn, 41 . Eliz. In B* R. 

^^»' •• Madox agalnft Dawfon. 

Michaelmas Term, 40. W 41. £//«. Roll 555. 
•^bemif-entry* TERROR of a judgment given in Shrewjbury in an ajjump/t. The 
^^^^JjJ^j"J"5r -1 - error affigned was, Becaufc the entry of the verdift wa<=, 
the notes of the ** f"''^ i'^'^'^^^'T affidant damna occajione ajfumptlonls prad'iil^ \^ 
Jury after error whereas it ought to have been, " occajione non pcrformaUonis ajfump- 
brought. " iionh pnpdi^la^'* And that was held to be a manifeft error ; an J 

p^'T*866*^ judgment cited accordingly betwixt Pain arid Pie ^ where in a 
' ^ "• • writ of covenant the verdift was entered, quod affidant damna &.\a- 

4. Co. 52- Jioy^g convcntiGws ; and the judgment thereupon was awarded to be 
fc'jon^ x'li!* erroneous. — But now Tanfiex-d moved, that the note given by 
1. Salk.47. 53. ^hc jury to the clerk was well, vl%. that they found for the plain- 
Bunb. 183. tifF, ct afftdent damna tantum ; and tiiar which was added tlicrcto 
Cro Car, 33S. ^as the mif-entry of the clerk, nnd may be amended. And fo it 
St an V ^^^ ^^^^ ^^^^^ ^" Brome and Hare's Cafe ; and therefore he prayed 
1^611^! 383! ^ writ to the mayor tlierc to certify it : and had it by the order ot 

Clench and FiNNER, being only there. — Note. That this wa> 
after in nulla ejl erratum pleaded. But this error was not affigned 
upon the record, but ore tenus^ tsfc. 

Casi 9. The Bifhop of Glouceflcr agahj Veal. 

^umrgim^it. p»RROR to rcverfe a judgment in quare impedit. — ^Thx fikst 

1R0lI.Ab.7e1. Error affigned was, For that the plaintiff declai-es, that z 

Cro. Car. Ui. ftrangcr was po&flcd for years, and devifed it to the plaintiff, and 

3. Co. 44. fo by ailent of the executor he had it; and he doth not fay virtuts 

J. L4. Raym, Rgationis preediei^e. See Bolles v. Nafjcham^ Dyer, 254. — SECONDLY, 

j.<:oin Dit Bccaufe he fticws how the church is void by the deprivation of the 

* incumbent, and he doth not fhew for what caufe ; for it may be! 

for fuch a caufe as the queen Ihould have the prcfentation ; as if 

it were for fimony, by the ftatutc of ^i.Elixi c. 6. — ^Thirdly, 

Bccaufe the value of the church is found to be 40!. per annum^ and 

the judgment is, quod recuperet damnum, viz. medietatem difii valoris 

di^€t ecclcjia per dimidium unius anni, qua ft attinguni ad 20I. which 

is not according to the precedents. — Yet none of thefc errors were 

allowed ; but, the Court being full, tlae jodgment was then 

affirmed. 

Ca« 10. Pigot agahfjl Garnifti. 

A dcvifc to a p'JECTIONE FIRMiE. Upon a fpecial verdift the cafe was, 

pcrfon as guar- IL Jnthony Poulter feifed in fee of this land, devifed it to Anthoni 

inay*«*«^rlf«'l« ^^^^ ^^^ "^ ^^*» ^^^^ divers remainders over, and made one Btjl 

•♦/r, JndUtJ' overfecr of his will ; and willed, " that he fhould have the edu- 

for his ward}, •* cation of his fon until he attained to his age of one-and- twenty 

gives him an «« years ; and to receive, fet, and let, for the faid Anthony, the fald 

Md^ifjm li- " ^^^^^ fo given to him, and tliereof to account to the faid Anthony \ 

^UfefiT *° '* ** 2nd the laid Beft to be allowed all his charges which he fliould 

Port. 734. ** expend about his bringing up." Bejl pakti a ieafe for fcvr'i 

Ante, »p. years in his own name, which was to continue half a year after the 

full age of Anthony : and, Whether thisr were a good Ieafe for any 

5. c. Dyer, j6. part of the term ? was the quefiron : for it was found that the faid 
Co^Ut/iii Anthony, the fon, was not yet of the age of twenty-one years, and 
Cro. Car. 38a. ^^ Beft was dead. — Foster moYed,yir the plaintiffs th^x thi^wai 

Caithew, 272. i. Ld. Raym. 33. Prcc. in Cha. 461. £q. Abr. 383. S.Vin. 162. 3. Brow. P. p: 4^* 
1. Salk. i»8. I. Br9WA*t Cti. Rep. yy ty notii, tc p« 75, 3. Bac» Ab. 40^* P«wcU on Dcv. iyf> 
Coirp. 464* 



Trinity Term, 4^.Eiiz, In B. R, '675 

mt a fcafe hj ylrtve of the authority ; bccaufe he made it in Pwsot 
his own name, rcferving the rent to himfclf : and he hath exceeded q^^*"!^ 
his authority in letting it beyond the age of Anthony: and he hath ^*»'*»«* 
not any intereft to let, for it is appointed that he (ball be account- 
able, which be fhould not be, if he had any intereft in the land.-^ 
Gawdy held, that Beji had an intereft by thi$ devife, and fo thf 
leak is good during the minority ; and to that purpofe cited Dyer^ 
28. Htn. 8.. fo. 26. And the intent of the devifor here fliall be 
conftraed, that he gave unto him fuch an eftate as he might let* 
aad not that he fhould make leafes in die infant's name ; tor then 
the in&nt might avoid them. And 'whereas the words are, *•*• that 
^< he may kt and fet for Antbony^^ it is thereby to be intended, 
diat leafes ihall be made for his benefit, and not that they fliali be 
ia his name : and this leafe is void for the remainder after Anthony'* % 
full age, and for no more. — Fenneb. and Clench held, that, 
whereas he h^th smthority to let and fet, it is only at will ; for there 
is not any other certain time appointed : and he is not otherwife 
authorized than in nature of a bailiff, to account ; wherefore he 
cannot make any leafes but at will. — Fopham held, that he ha4, 
not any authority, nor could have any, to kt in the infant's name,; 
for fuch an autliority cannot be given him : for if one devifcth 
land, he cannot appoint that another fhall^ make a leafe for year^ 
in the n^e of the devifee -, and it is not any intereft : but if he 
bad devifed that one Ihould make a feoffment, or a leafe for life^ 
that is an inteteft in tlie devifee ; for otherwife be cannot make 
livery: but to devife, that he might bargain and fell, or kt for («) In KHafy * 
years, it is otherwife ; for thofe may be without an intereft ; for Term, 42. £»^ 
When the leafe is nuule, he fhall be in by the will : and folie con- JJJ^'^^'^UJ 
ccived here ; and that this leafe v^as good, and void only for fo IJIid'adjud^Vcr 
much as exceeds the age, &c.— &i/ adj^urnatur (a). thepiatndir,tbat 

the teafe was void. P0A.734. 

Baker a^awjl Brent and Robinfon. Casi ut 

PROHIBITION in chancery to ftay a fuit in the court chrlf- if an incumbent 
* tian. For that Robinfon fued againft tlie plaintiff to be ad- ncgicA to read 
mitted to the church of C in the county of Somsr/ei ; and Brent^]!^ 7}*"^^??* 

, ' . n r J • ^u 1 -^ ' Articles witbtn 

as patron came in there pro tntereffe foo'. and in the chancery it was t^o months aC- 
pleaded to iflue, Whetlier the church of C was void by the death cer hit indue- 
^i one Dvrfionf late incumbent there, which was fent into tlie tion^purfuantt* 
queen's bench to be tried ; where a fpecial verdift was given to thi^ ^'^'^^*' ^' '*' 
cffcft, That J. S. viras feifed in fee of the advowfon of the iiid ^^" h^ew" 
church, and prefented thereto the {siid Dur/ion^ anno l6. Eliz. who void,'withour 
was admitted, inftituted, and inducted, but read not tlie-Articles fentenceofdt* 
tccording to the 13. £//z. c. 12. and the general pardon in pnvatioiu 
18. Eliz. was found ; and that afterwards Durjion was deprived by 
fentence declaratory for not reading of the Articles ; whereupon he 
appealed, and, that depending, ^di^r obtained a prefentation there- 
to by the queen, and was admitted, inftituted, and induftcd ; and 
afterwards Durflon. died ': and then Brent the defendant, liaving the 
advowfon, prefented Robinfony tlic other defendant, who fued in, 
court chriftian to be admitted. J?** 7?, (ffc . 

Tanfield, for the plaintiff. This iflue is found againft the 
defendant ;*for by his not reading of the Articles, the church was 
prdentlj void without any deprivation*; then when the queen pre- 

" iinted 



68o Trinity Term, 41. Eliz. In B. R. 

BArtR icntcd Baker^ the plaintifF, who was admitted, &c. and in for fit 
•X«'V' months, he is incumbent, and the church is not void by the death 
luVi hioIk! ^^^^rjion ; and, whether the plaintiff's prcfentation be right or tor- 
tious, the defendant ought not to fue in court chriftian to remove 
5. Co. 10a. him : and 23. Eliz. Dyer^ 377. where a parfon took a fecond benefice, 
i. Co.29.b. jind did jjQt fubfcribe to the Articles, the firft benefice was never 
void. And fo itwas adj udged in this court, 3 1 . Eliz, between Morrice 
and Eaton^ where a parfon fued for tithes : the defendant pleaded, 
that he never read his Articles, and fo not parfon ; and adjudged 
in a prohibition, that the church was void for this caufc. Where- 
fore, &c. 
YdT. 17. DODERIDGE, for the defendant. This benefice is not void un- 

til deprivation infaffo\ and the incumbent continues parfon until 
then. 18. Eliz, Dyer^ 346. That notice ought to have been given 
of the deprivation, or otherwife there fhall not be «ny prefcnt- 
ment for lapfc. And although the words of the ftatute be, that 
the church ipfofafio is void, it is to be intended upon deprivation, 
and not' without fentence : and this word " deprived requires 
the hand of the fpiritual court tliereto ; for it is a fpiritual aft. 
1. Burr. 042. And 10, Eliz. Dyer^ 275. upon the 5. Edw.^. c. 4. for ftrikingin 
B. R. H. i9o» jiig church, that ipfo/a/Jo he (hall be excommunicated, is to be in- 
tended he (hall be excommunicated after fentence, or due trial and 
convi£lion, and not before : then here, if this church be not 
void until deprivation, this offence of not reading his Articles is 
then pardoned by the aft of 18. Eliz, and the deprivation after- 
Poft. 919, wardsis void. And if it were not void, but good, yet by reafon of 
this appeal it remains as null until the appeal be decided ; and in 
proof hereof vide 2. Rich. 2. " ^fate Impedity* 143. 2. Hen. 6. 
pi. 25. aj.Hen^ " Gard.*' ii8, -12. Edw. ^..pL 14. Dyer, 105. 
and 240.- Wherefore, &c. 

But ALL THE Justices, Popham ahfentcy refolved, that this 
church became void prefentlyby the not reading of the Articles, 
and there needed not any deprivation ; for otherwife the ftatute 
ihould be defrauded at the ordrnary*s plcafure, if hoiiwould not 
deprive. And the pardon works nothing ; for the church being 
once void for not reading, &c. he cannot by the pardon be rcftot- 
ed : and the pardon fhall never reach to it,becaufe it was not a 
contempt whereof he might be indidcd ; but his punifhment is 
to lofe his benefice. Wherefore it was adjudged for the piaintiff, 
qnod prohibitiojlet. (a) 

(«) By 13. & 14. Car. 2. c. 4. f. 6. c. 29. h is ena^ed, that whoever ihall 

CToryecclefiafticalperfon, within two months read the Articles, aod make the decJaraticn 

after hit promotion, ihali publicly read on as ordained by 13.^ Elit. c. la. and Aai) 

fome Sunday in the church to which he fs read the prayers, and declare their aflent, as 

promoted, the morning and evening prayers ordained by 13. & 14. Car, 1, c. 1. ftall 

as appointed by the Common^praycr book ; be adjudged to have complied with the 

and after fuch reading (haU openly declare true intent and n)eaning of the 13. El^* 

Co the congregation his unfeigned affcnt to c iz. and (hall net be deprived, althno^h 

^11 things therein contained \ and whoever their ccmpliance was not within two 

(hall refufe or neglect fo to do, (hall be months after their indadion to the core« 
iffofaeu deprived. Bui by 2^. Cc». ir 

Waflm^o* 



Trinity Terrrii 41, feliz. In B;R; 6»i 

'^ Wafliington againjt Murden, c^** **• 

EXECUTOR OF LIGHT, 

r\EBT on an obligation of loool. made 7. jEZ/Jji cotiditioned X covmami to 
^ for the performance of covenants betwixt the plaintiff and the py^hafc u^ 
faid^ Ugbe. The defendant pleaded performance of covenants ge- convey'J'v'ws 
nerally. There were in the indenture two fpecial covenants : jands and tcnc 
Firil, That Lights after licence of alienation by him purchafed, mcnts by fuch 
Ihould enfeoff two perfons to be named indifferently by Light zi\i »J^urances, at 
ihe plaintiff, of all his lands and tenements, to the ufe of Simielf ^^,*'^''^^^^^^^^^^ 
for life ; the remainder of the one moiety to the ufe of Urfuhy the v.fc.' He may 
xrife of Lights for her life, if (he lived fole; and if flie married, be called upon 
that then the ufe limited unto her fhould ceaic, and that it fliould ^«> convey by 
remain to the plaintiff and his wife (the daughter oi Light) in tail : />'«'''^''» ^'^t*'©"* 
and for the other moiety, that prefently after the death of Lighty it hld^ufchafed * 
Hiould be to the ufe of the plaintiff and his wife in tail. Secondly, the licence to 
He covenanted, that he, pro ultcriori affurancia di^i Jlatus^ would convey j or that ■ 
make all fuch afts and affurances asfliould be devifcd by tlie plain- ^"^^ parcel wsa 
tiff or his counfel, ,at tlie cofts of Light, the covenantor. The fin^^j^","^^ 
breach affigned was, That in 7. £//z. at the time of the covenant that it contain! 
made, Light was feifed of an houfe, and two acres in Z). and of di- ed more or ids 
vers lands ufually occupied with tliem ; and that in 39. Eliz, the »« quantity than 
plaintiff's counfel devifcd a deed of feoffment, whereby Li^ht ^hecov^-^'nt^ 
ftould enfeoff^. S. of the faid houfe, and two acres of land, with bm hti« there* 
the words, of all lands, tenements, and hereditaments, ufually Jet by diichargcd 
witl) that houfe, to the ufe of Light for life, remainder to the plain- of making any 
tiff and his heirs on the body ofliis wife engendered ; which deed "^"fan^co^ th« 
he tendered to Light to fealand execute, and he refufed : and avers, AntJ'*' . 
that at tlie time of this affurance devlfed an<l tendered, that botli 
the plaintiff's wife and the wife of Light were dead. The defcn-- ^^o' T?* 
dant travcrfeth the tender, and it was found againft him.— And it ?i caJ. Ab^^o. 
was now alledged in arreft of judgment by Yelverton, /J'ryV^;;/, i.'Wood'sCon* 
and Tanfield, that the breach was not well affgnsd : First, In 3^* 44i- 
regard the covenant is, to make affurance of all his lands and tene- 
ments, and the affurance is tendered of an hou(e and two acres, 
&c. and he doth not aver that they were all the lands and tene- 
ments of Light which- he then had ; for if he fhould compel liim 
to make affurances for every feveral parcel, it would be inconve- 
nient, cfpecially the affurance being to be made at the cofts of the 
covenantor, which would be a great trouble and charge unto him. 
— PoPHAM and Gawdy held it to be well enough ; for if the af- 
fiiraiKcs arc to be made at the cofts of him to whom they ought to 
l)c made, he may well require the affurance to be made by parcels ; 
for it is not any prejudice or difadvantage to the other ; but when 
the covenantor is to be at the charges, it is othcrwife ; yet there, if 
the party feqtiires an affurance of pircel, the covenantor is bound 
to do it ; but tlien he is difchargea fronj making any affurance of 
that which remains. The other Justices fpake not to this 
point; — Secondly, Becaufe it is not averred th^t Light purchafed 
licence ; and he was not to make the affurance till after licence.— 
PoPH am. There will be difference where the firft aft is to be done 
ty a ftranger, and whereby the covenantor himftlf; as where I (^6- 

CROi £LI2. PART lU Z « VCUaiU 



iii2 Trinity TeiTO, 41. XIiz, In B. R. 

Washinctch vciiant after the marriage of J. S. and J. D. ta make fuch an af- • 
lA^ I fu«^2ince, 1 am not bound to make the affurance until after mar- 
riage: but where the firft aft is to be done by tlic coYcoantor 
himfclf, although by his laches it be not done, yet that fhall not 
impeach the covenant for die remainder. And here the licence 
is to be purchafed by the covenantor. — Thirdlv, Bccaufe 
the affurance is devifed and tendered 39. Eliz. of all the lands 
which were then occupied with, the houle ; and it may be he oc- 

Ante, €$1. cupicd more lands to the houfe tlian he had in 7. Eli%, and fo va- 
riant. — But PoPHAM and Clench held, that it fhall not be in- 
tended that he had more land : and the affurance is well tendered ; 
and that the defendant ought to feal it, unlefs he can (hew tliat he 
had more lands afterwards purchafed. — Gawdy held, it (h^ll be 
intended that he had no more land ^ but he doubted whether he 
was bound to feal it, becaufe it is variant from tlie covenant. 

Case 13. Wilford, Chamberlain of London. 

Pchtlies in the p^EBT on a recognizance, acknowledged to the faid plaintiff 
king's bench A-^ j^ London^ according to the cuftom there, for orphanage mo- 
tipon a recog. ^^^^ allrdgeth the cuftoni, that they had ufed there to take 

mzancetaken r ^% . ' o , . V • ^ Tin i_ j » i- 1 • 

hi London. i^C" recognizances : and the queftion was, Whether debt hetJi m 

Ante 464. tills court, or was to be brought in London only, where it is 
maintainable by the cuftom ? — And all the Court refolvcd, 
Co. Lit. 9. ^^,^^ j^ ^^^ ^ g^^ recognizance ; and the debt licth for it iu this 
ITcoVe's, court. — And Coke, the Queen's Attorney j who was of counfcl in 
Cro.Car. 344. thc cafe, faid, that it hath neen fo adjudged in this court between 
Wood^$ Inft. Shay'mgion and Ful'u;aod. 
lio. 
a.Bl.Com.432. Cowp. 476. 

Case 14. Shuckborough a^ainjl Biggen. 

Onaconviaion ^FJFl cafewas moved ajain. — And Popham and Clench hcH, 
•f manilauphKr 1 that this fuit is a fuit of the party, and the burning of thc 
on an appeal q^^^j^j caniiot be pardoncd.— PoPH AM ifaid, if one is "attainted of . 
ge'nSal^ pardon foi'^^trvy in an aftion upon the llatute 5. Eliz. c. 9. f. 14. of for- 
does not dif- gevy, the queen cannot pardon the punifliment^ But thc cafe in 
chargcthc burn- i^. E/iz. Dyer, 323. when one was convifted in the ftar-chamber 
in^ in the hand, f^ J. forgery, and the queen pardoned thc pun ifhment, was good 
Ante, 632. j^^ . j-^^ thcfuits in that court arc by infonnation, whicli is pro- 
S. a 5. Co. 50. pcrfy the quecn^s fuit, and not the party's ; and therefore thc queen 
Moor, 571. may pardon it, but not when he was convifted in an aAion at the 
Hob. 294. paity's fuit ; and fo he faid wa5 the opinion of divers Jufticcs 
i.^eerrwnu ^^^^ wliom lie had conferred. — But Gawdy and Fekner held, 
453'48*7. * ^^^^^ ^'^^ queen's pardon was fufficient to difcharge the burning u* 
». Hawit^P.C, tlic hand ; and to that ,purpofe cited 3. Eliz. Dycr^ 202. — And 
5^5' upon this diverfity of opinion they moved for a compofition be- 

tween the parties ; and the defendant gave forty marks, and the 
plaintiff accepted thereof, and then difcon tinned her fuit; andth* 
defendant was diichargcd by thc pardon, tlic parties fuit being dc- 
tcrnuBed^ 

Trinltr 



Ma 
Trinity Term, 

41. Eliz. In the Common PleaS. 

Sir Edmund Andeffon, Knt. Chh^fjujlice^ 

Thomas Walmfley, Efq. " -i 

John Gknvile, Efq. \ yujliccs4 

George Kingfmil, Efq. J 

Sir Edward Coke, Knt. Attorney GeneraL 

Sir Thomas Fleming, Knt. Solicitor GcntraL 



w 



Sanders agahft Norwodd. Cais u 

Hiloty Termt ^X.Eliv:* Roll -^^t, 

ASTE brought in the/^«K//againft the gtanted of a ttnti, ifakfleeof , 
bv thcaffignee of the reverfioii^ infodohh carbones. The '*»'»^<5P«« * 
defendant pleaded, thn milou^khy, the firft lefTecJ, had g;'^;7^;^^^^^^^ 
digged and opened a mine of coals, and afterwards granted unto terdtexctptin^ 
him all his intereft in tl^e land, excepting to him and his affigns^ the mine, waftg 
all the benefit and profit of the coal-itiincs there, and of a!i trees ^''" J»* by sm 
there ; and that aftetwardis fnihitghhy digged the coals there. Upon ""J^l^l ^^^ 
tliis plea it was demurred ; and argued by Williams, for the dc- ihe^graTtcIf for 
frndarjt^ that this exception is of the mine itfelf, and of the land j coals «fiefwardf 
and tlicn the grantee is not punilhable for this wafte done by him. «*»g by the 

But all THE Court, after argument at the bar, refolved for exccptioci tirai 
the plaintiff, that thcaftion is well brought by the alllgnce ; for void, 
this exception is void, becaufe he hath excepted that wliich he had Port. 696. - 
not to except ; for although he hath opened tlic mine, he hath no co. tit. 54. 
ftorc intereft therein than he had before, nor any in tereft in the a. inft. 3c i. 
mine, which is but a profit ^ /rrWr^ out of the foil; and there* a.RoLAb. 4544 
fore the exception void. And thereupon KfNCsMiL faid, if the? '^'^^\^'^* 
Icflee fcHsthe trees growing upon the land, and afterwards affigns J'i,^on*4o. 
the term, and the affignee cuts down the trees, an aftion lies 5.Co.Dig.6S*i# 
Jigainft the afTigncc ; for the grant is void againft him. — Glan- DwgL 187* 
^*iLe. If the exception had been of the mine itfelf, 1 conceive 
that there the foil had been excepted, and it had been good, and 
he fhould have had it againft the Icffee thereof ; but v^lien the 
exception is of the profits of the mine, that is void, the term 
being granted iff the lalid. And a cafe 28. Eiiz. RolL 82O. in this 
Court w^ cited to be adjudged, where Icflec for years granted all 
his eftate excepting the trees, and the firft lelTec cuts down the 
trees, wafte was brought againft the xifignee^ and cdjudged 
ftiaintainablc j for the exception was adjudged void ; for tlie treesi 
Were not let at firft, but the foil ; fo as he excepted a thing which 
he had not to excerpt ; and therefore the exception void.— ^-And 
The Court faid, there was not any difference betwixt thcfe 
cafes; wherefore here, the exception being of a thing with which 
l^p had not any power to meddle, it is void* And therefore xt'waf 
adjudged for the plaintiff, 5. (To. 12. 

Z z 4 Broclu 



684 



Cask t. 



Trinity Term, 41. Eliz. In C. B. 
Brocks agatnft Phillips. 

MafierTcrm^ \\. Uliz- Roll 1704. 



Alien 



n enemy, is TxEBT as adminiftrator bf one Box upon an obligation. The 

if .n debt X^ Af^ftmr\Anr\t r\\t^'iA»A •■1-««i«- t-l-»#» T\T«itn^i^ wfse «ifi y>/^4M **i^ \\r\A^r 



no pif 

on bond as a*;!- 

miniftrator. 

Ante, i4i. 

Co. Lit. X19. 
Moor, 43 T. 
Croi. Car. 9* 

Case %• 

Words not ac- 
tionable. 

4. Co. 16. b. 
Cro. Jac. 1 14. 
Bull. N. P. 5. 
X . Term Rep. 
C. B. hL 



CASt 4* 

Afieneral par- 
don will dif- 
charge a fult in 
the rpiritual 
court ** officio i 
but noc «</ijf- 
Jtanliam partis* 

5. Co. 51. b. 
Hob. 1171. 
3. Inlt 239. 
Cro. Jac. 335. 
ft.Buir. iSz. 

tatch. 19c. 
Hoh. 81. 
8. Co. 68. 
Cro. Car. 9. 55. 
1x5. 5. Com. 



defendant pleaded, that the plaintiff was aft aCten nee under 
the obedience of Philip king of Spaln^ enemies to our fo- 
vereign the queen ; and demands juclgment,' whether he Ihould 
be anfwered.— It was tliercupon demurred ; and adjudged that he 
ftiould anfwer. 
Carter, 49. 191. Skin. 370. x. Salk. 46. Ld. Raym. z82. 3. Bac. Abr. 376. 696. 

^2iton againft Allen. 

A CTION for thefe words: " He is a brabler, and a qxiarrellcr, 
-^^ " FOR he gave his champion counfel to make a deed of gift 
** of his goods/ to kill me ; and then fly out of the country : but 
*' God hath preferved me." The defendant pleaded not guilty ; 
and found againft him ; and now alledged in arreft of judgment, 
that an aftion lies not for thefe words. — An4 all the Justices, 
except Gl AN VILE, held, that the words were not actionable. For 
thefe words, " He is a brabler and a quarreller," will not bear an 
a£lion ; and tfie words fubfequent are but to confirm them, 
or to £hew the reafon why he fpake fo ; becaufe for is not any 
affirmative flander, nor an exprcfs affirmation, but rather qualifies 
the force of tlie words fubfequent ; and they relate to the firft. 
But if the words touch a man's proteffion, that which comes 
after tlie for, may aggravate the matter, and maintain the aftion; 
as, Anderson faid, if a man ihould fay of a lawvct, •* He is a 
^ knave, for he hath dealt on both fides." So if one faith of a 
furgcon, *' He is a knave, for he hath murdered fuch a man 
** with his plafVcrs." In thefe cafes an aAion lies, for they 
touch them in their profeffion and reputation ; and expound 
what he intended by the firfl wcJrds. — And Walmsley faid, he 
had conferred with the Jdftices of the queen's bench, and they 
were of opinion alfo that the adtion lay not. Wherefore it was 
adjudged tor the defendant. 

Nonvood's Cafe. 

PROHIBITION was brought to Hay a fuit in court chriftian 
^ for defamation upon thefe words : *' If mafter JViHiam AV- 
** 'wood had not gone out of town, he fhould have anfwered for the 
** two baliards he begot upon two fuch women." He there pleaded 
the general pardon, which would not be allowed. And thereupon 
the prohibition was brought, furmifing this master; and now 
confutation was prayed. — All the Court, except .Gl aw vile^ 
held, tliat it is well grantaSle ; for they all refolved, that a general 
pardon doth not aid him for the Haying a fuit in court chriftian, 
which is for ct ad injiantlam partis : but if it were fued there ex 
officio judjciff the general pardon would then difcharge him.— 
GLANYiLBheld, that for this flanderan aftion lies at rhecommon 
law ; for the begetting of baftards is punifhable by the 18. EH^' 
c. 3. and the flatute, having given a rci]ftC<Jy> takes away .from the 

Di^ jii. .3r Bac. Abr^ 803. 2. Hawk. 556* 

fpirituai 



Trinity Term,' 41. Eliz. In C. B- 6^5 

fpiritual court its power. — ^But all the other Justiciis agalnft Norwood^i 
him herein ; for where a remedy for a punilhmcnt is given by a *^^"- 
ftatute, that fhall not take away the punilhment that was before: 
and qucilionlefs, there is not any punifhment by the common 
Jaw, .where one is injurioufly flandercd in this cafe. Wherefore a 
confultation was awarded. 

Anonymous. • ^^nji 

Hilary Term, 41 . Eiix, Roll 358. 



can* 



/COVENANT. The breach affigned was in two covenants ; and JudKmcnt 
^^ it appeared, that for the one he had no^caufe of action, and «H>t be given oa 
for the other a good caufe. Ifibe was joined upon both ; and found ^|J^°^"*"** 
for the plaintiff in both, and damages entirely affcfled. The ^^^ 
plaintiflF could not have judgment. ^ . 

*^ JO jQ^ Co. 130. b. 

Cowp. 35S. DougL 377. 730. 2. Term Rep. 758. 

Anonymous. ca»k 6. 

"PROHIBITION to ftay a fuit in the admirals court. The a libel will lit 
-*• cafe was, That a Frenchman had his goods taken from him, »n the admiralty 
"jiz, fait, upon the fea ; which was afterwards fold to the plaintiff, *^"'^» ^t^XnH 
being owner of the (hip (the party incharged in the journev, but ]Jil^ ^p"^* 
not prefent at the taking) zl Plymouth ; and he fued him for the fait goods piratlcaHr 
in the admirals court, and had fentencc againft him who brought uken*//M. 
the prohibition ; bccaufe thecontraft for the fait was upon the land March, no.' 
and fuable at the common law, and there ought not to have been a i. sau'nd. aka 
fuitfor it in the court of the admiralty. — But ali>the Court re- Hobart,. 78. 
folvcd, that the fuit in the admirals court was well brought ; for »-^*"«^ *59- 
when the goods are tortioufly taken upon the fea by piracy, it Vr^iaV It V 
gaineth not any property in tlxem againft the owner. And being \, ]^\ %^, 
fold upon the land, unlefs it were in a market-overt, doth not Yeiv. 135. 
alter the property. And when the owner found them in his '3'5**«53« 
pofleflion, he may well fue in the admirals court; for although J* ^J ^*^ 
tiic court of admiralty hath no authority to meddle with things show? 179,' * 
upon the land, yet when the original caufe arifeth upon the fea, 4^00.01^.1 «a, 
and other matters happen upon the land, depending upon the WoodU inft. 
original taufe, thofe matters, although done upon the land, (hall ^^^ ^ 
be tried iti the admirals court; as ig. Hen. 6. pi. 7. So an obli - ^ *, *^'^^^*' 
gation to appear and anfwer in the admirals court, or to ftand to i. Term Rep. 
a fentencc in that court, is fuable thef-fe (a)^ cfpecially in this cafe ; c. b. 176* 
this fale, although it were in a market-overt, being void, becaufe ^"^ *• '*^*' 
it was made to the owner of the fhip, and party to the charge ^^^ ^J*" 
thereof ; and fo to be intended jo be party to the t$rt. Whcre-% Hani. 47*3* 
fore a confqltation was awarded. ij. Co. 5a.. 

4. Inft. 135, 

Smith againft Shelbourn. q^„ - 

Eajltr Tirni, 41. ElJx. Roll 10©I. 

PROHIBITION. The cafe was, A parfon being fick. the a general par- 
^ father of Smith came with his fon to the patron, and con- don difcharse« 
trafted with the patron, in the prefence of his fon, for the next ^^ P"ni(h- 
avoidance of tlie church ; and agreed to give him for it lool. who "^"»"ft'^«<* 

Axs Dot preclude the ordinary from enquiring into, and depriving the Incumbent for that offcn^c^ 
Yiitlnfr*. S, C«Qwcn|87, Mcpry 916. 2. Mod. 51. a. Hawk. 519. 

2^3 thsrcupott 



686 Trinity T^rm^ 41 • Ellz/ InC. B. 

Smith thereupon made a grant to him of the next avaidance accordingly. 
a^a'wj^ Xhe parfon dies, the father prefents his fon, who was admitted, 
8J»fi-»9«^N? inftiluted, and indufted ; and now was fued in thefpiritual court, 
to be deprived for fimony upon this caufe. Smith brought a pro- 
iiibition, alledging therein the general pardon of 35. Eli%. which 
was after his prefentation, admiilion, iiillitution, and induftion, 
wherein fimony is not excepted ; and it was tliereupon demurred. 
■—After argument at the bar it was refolved, that the prohibition 
well lay. Ana lirft the whole Court refolved, that although 
the general pardon difchargeth the punifhment for fimoiiy (^j, 
c 6.^^' '** yet if the parfon comes in by fimony, it is examinable by the 
4. Bl, Com. fix. ordinary, for he ought to provide that the church be notferved 
with corrupt pcrfons ; and if he iinds fimony in any, he may well 
deprive him for that caufe. And that made, that the church was 
never full of him, and m«idc him no parfon ab initio ; ancKthe par- 
don doth not enable him to retain it. r 

Ttisr©t/wty ^^^ ALt THE JUSTICES, excepting ANDERSON, iKTld, that in this 
ioT ajsirhcr to cafe there is not -ny fimony ; for the father might buy the advotv- 
purchafethc yj;/, and prefent his fon; and it is not fimony in any to buy an 
^r' ^^°'l^"^® advGVjfon, And although the fon here was privy thereto, yet it is 
order trproTidc ^^^ Hiaterial ; for it being no offence in the father, who was the 
for his (on, ai- principal, it cannot be an offence in the fon^ who was but 
ibou^u the in- accefTary ; for there cannot be a partiaps criminis, wliere there was 
<:uiMbcnt be iiot any crime committed. But if the parfon himfelf had con- 
bc^^'r^rt^^^thc" ^'■^^^^^ for ^ benefice, to the intent another Ihould prefent him, 
porchafe, for a ^^^^^ '^ fimonv (h). Jiut thc father is bound by nature to provide 
fjihcr is bound for his fou, and therefore h^-^ buying an advowfon with an intent 
by narore to to provide for him is not any fimony ; therefore the prohibition is 
TTiake pTovifion ^^jj granted : otherwifv*, under colour hereof, every prcfcntment 
Vidrpoft" 7«8. Il^ig^*^ .i^ drawn into queflion in the fpiritual court. 

vV'T'l^^^ra^ Anderson, Chief Jvjiic,\ held, that a confultation fliould he 
Ho!\i65,f^ir4. granted in this cafe; necaufe this contraft by tl^c father, with an 
^jncli. 63. ijntcrtt tp prefent his fon, being in pre fence and with the fon'". 
Cio. jac. 248. privity, made it fimony in him ; and he is deprivable. And al-. 
*'t ft^^* though the law is, that if fuel 1 ^ fimoniacM contr^ft be proved, 

J. Bac. A^" ^^^ ^^^* incumbent be deprived, that the church is (luajt always void ; 
^69. * " ^nd that thcie fhall be a prelcnimcnt.by lapfe to the queen; yet 
^. BUCpm, that doth not make the right of patronage to come into queflion, 
»Sp. becaufe the (deprivation arifcth from thc patron's offence. Wheie- 

ioc\.'^*^" ^^""^J ^^' ^^^^ ^^ ^'^ ^^^^^ ^^^^ ^^^^ father had bought the benefice, 
|. ^rf. 1510. "*^*?^ .^'"^ inters to prefent the fon, if it werp without the privity 
"* ' ." 8vnd confcnt- of the fon, it had not been any fimony. Whcrefoiv, 

• as the cafe here is, he hcl^ it to be fimony^ ^nd tl^.e confultatio.i 
^erantiiblc. — But nptwithftanding, TnE ot'iuik tukke Justici.s 
peing a^ainfl him, it was adjudged that th^ prohibition Jhoulcj 

(i) Set 31. Wyi.'c. 6. and 42, Ann. c, la. 



WjndlbF 



Trinity Term, 41. Eliz. In C. B, . 68? 

Wiadfor againft die Archbifhop of Canterbury, Lovcday ^^« *• 
and Fletcher. 

Eaftir Term, 41 . £//«. Roll 513. 

QUARE IMPEDIT for the church of Bufcot in the county Pleadings m 
X^of Berks. And counts, how Lovcday tlie defendant was f''^'''''^'*'''- 
fcifcd in fee of the manor of Bufcotj whereunto the advowfon S.c.Moor,55K 
of two parts of the church of BuJ'cot f viz. io prefcnt to the faid S-^o- 'o^- 
church at two turns together) was appendant; and that <>iie ^^^JJ*'^ 5' 
Stonehurjl was feifcd in fee of the manor of 5. whereto the advow- ,0. Co! 136.' 
for) of the third part of die faid church (viz. to prefent at every i.RoU.Rcp.isn 
tliird turn) was appendant: and Ihews, how die f:i\A Stonehwjl ^^^'^^- l^A* 
prcfented one Parry to that diurch in his turn ; and that after- 
wards Parrvj in the time of queen Maryy w^as deprived ; and then 
ii>cW^?y prefcnted in his firft turn one Akres\ and that Akres died; 
and that afterwards Loveday prefented in his fccond turn one 
PulUrty who died ; and that he who had die grant of the next 
avoidance, by grant from Stonehurjij w^as to prefent ; and that 
the defendant had difturbed him, &c. The archbilhop pleads, 
that he claims nothing but as ordinary. Lovcday the patron 
pleads, that Stonehurji prcfented Parry ^ who died incumbent; 
and tliat afterwards he prcfented Pullen in his firft turn, and ht 
died; and then he prefented the defendant in the fccond turn ; 
ABS(vuE HOC that the church became void by the deprivation of 
Tarry. /Tf/rAr^* the incumbent pleaded, confefling the prcfentmcntof 
favry\ and Ihews how he was deprived in ^^i^wMarys reign, quia 
conjugatusy and bccaufc he was a favourer of the religion profelfed 
in the time of Rdivard the fixth ; and diat Lovcday^ the then • 
patron, prefented.^/vrj, as is before alledged ; and that in i. Eliz. 
this fentence of deprivation of Parry was by the high comniif- 
fioners repealed, and Parry reftored ; who afterwards died incum* 
bent, and then Loveday prefcnjed Pullen^ ^c. ; and that after his 
death he prefented the defendant as in his fecond turn, and tra- 
verfcth, absque hoc that the cliurch was void by the dca^li of 

It was thereupon demurred in law ; and after argument at the a prefcutmcnt 
bar, the Court refolved for the defendant. The point in law on a deprivation 
was, Whether this prefcntment of Mres^ upon the deprivation of f«'« «««;'X-''" 
Parry (this deprivadon being afterwards repealed, and Parry re- f°"'^/[h7in^ 
ftorcd), fliall be faid to be a fufficient prcfentment for one turn, cumbcnt be !«• 
fo as he afterwards may not liave liis fecond tarn ? — And all the ftored. 
Court refolved that it was not ; for when the fentence of the 
deprivation was repealed, and Parry reftored, it is as if he never f rqu'**'^^' 
had been deprived; and the prefentation in the interim merely Hob. 148. li;, 
void^ and as none, and as if a prcfentment had been when die Dyer, 192. 
church was full. Now Akrei is adjudged, as if he never had been F«»g« 3^ 
incumbent, but an intruder; and fuch illegal prcfentment can 
never make a turn in the patron. But if the incumbent prcfented 
be afterwards deprived for incontinency, or other fuch caufe, it is 
otlierwife. 

As to the travcrfe, which was alledged to be a principal caufe of Themsimer of 
the demurrer, for that the prcfentment ought to have been tra- *« ivoidancg 
ycrfed, and not the mani^er of the avoidance, it being unufual^^^rbcwvciiW. 
in a yiart impedii : — All the Court held it to b? weU caough ; 

Z 2 4 fcr 



L 



^88 Trinity Term^ 41. Eliz. InC.B. 

I 

v/iypsoK for it 15 the fubilance of the matter, as this cafe is, and not tlie 
'i^'hbfti pi'c^'ri^^^iori ; and therefore it is traverfable. And if the prefcnt- 
le- rc^ 1 op j^,^j^^ ^f ji^j.^^ in t2)is cafe had been traverfcd, it ftiould have been 
Canterbury, found againft the defendant; therefore of neccffity the defendant 
Lov PAY, ought to traycrfe the manner of the avoidance. The difference is 
and betwixt a!i alfjfe oi darrahne prcfentment and zauare imped'tt \ for in 

LETCHER. ^^^ alfife of darra'igne prcfentment^ the laft preientation is traverf- 
able ; but in a quare Impcuit the travcrfc Ihall only be upon the 
matter; ^s appears in d.Edu;, 3. 
UjuanimfieJit, ^^^ '^^^ WHOLE CouRT held the declaration to be ill, in that 
if ihc count is he declares, tliat one had the advowfon of* the third part of the 
of an ../vow/o« church, and another two parts thereof; for it appears, that tlie 
o/twuf>arts, Q^g jj^j |.j^g entire church for the time, when he was to prefent 
by thcT^u- ^^^^- ^^^ ^^^^ when he declares, that one had the advowfon of 
iton that the t'ujo parts of the church, viz, to prefent to two turns, it is repug- 
ch Tch was «». nant in itfelf; for by his own Ihewing, it is to two parts of the 
v'^''' ^^^ W'*^"'® qdvnivfon^ and not to the church, for the moiety or third part of 
'u^miff'^rtide ^^^ church is, where parcencry, or joint-tenants prefent jointly, 
\xL\oi'Llam every one hath a part of tlic church ; but vyhcre t\^b churches 
e//iucfli/vow/"o«. are united and confolidate, and the patrons agree to prefent the 
one two turns-, the other a third turn, as this cafe is, there cither 
,''1/^6^17' of them hath the entire church for that time {a) ; and as 
4! Co! 75^ *^ Walmsley faid, the difference is well cxpreflcd in 31. Edw. 3. 
5. Co! 10';. *| Dro'ity'' 68. isf 69. Wherefore it was aajudged for the defen- 
a. Inft. 575. dant. jj, Co. 102. 

JO. Co. 135. F. N, C. 3J. Cj. Lit. iS. Ld.Raym. 107, 198. 3. Wllf. 2x4. 33^. 367. 

(«) Sc« 7. Ann. c. iS. 

'casi 9. Smith againft Warren. 

Hilary Term t ^i» Eli»* Rc/I ^ly, 
Afinelffvied T>EBT on an obligation, conditioned for the performance 
|»y a tcnanc for -L/ ©f certain covenants in an indenture, wherein /if^r/v« had 
vcrfiontr in ^c Ict land to Smith for years, and covenanted that lie (houiJ 
lotheufcof the enjoy it during* the term. tJpon demurrer the cafe was, that tc- 
cunufcc an<< his nant for life levied a fine to hii"n iiV rpvcrfion in ittfur conujance de 
^''^^^'\i^^^^^^ droit ccme cfOy &c. and ther uics of that fine were limited to. tlie 
ken to^thcufe ^^'"'^f^c and his heirs, upon condition that he fhould pay to the 
of the conufor tenant for life annually, during his life, 4I. per annum ; an^ if 
(or lite, and one there weVe any default of payment thereof, that it fhould be to 
yparovtfrj Is not th^ ufe of the conufor for his life, and for one year over. X^^ 
a furrcnder. conufee made a fcofFment to IVarren,\\\io niade that leafc for yenrs 
;.RMi.Ab496. to the plaintiff. The 4I. was not paid nor demanded ; the rcnanr 
|\; ^^"^^' **^3- for life entered upon the plaintiff ; and, Whether this were a 
j/Lcon/iU. breach of the covenant? was the queftion. 
-/. './•;• First, Whether this fine levied be a furrendcr? And iffo. 
Whether furrender may be to an ufe ? — And it was held, that it 
-js'as not any furrender; for the fine implies a gift in fee fimplc: 
and every one who is party to a fipe, fhall be eflopped to fay 
the contrary. But it was laid, that if it were a furrender, yet it 
\\cll may be to an ufe ; for it is a conveyance, tried, and chargcu 
with tliis limitation of an ufe. ' 
f e a leflbr holds Secoi^idly, Whether there -^va^ any breach of the condition 
jiiscftatcwcon. without demand of the rent ? — And it was held that it was; for 

dltionof paj.ng ...» ^ >. . . . 

in annuity, 'non-pio^6nt h a breach of covenai;!t for quiet enjoyment, although no demand of it ^ 

niadc, and the leiicc lumlcif migbl have r aid i^. t. Co. 9 5. C j o, Jac 42 3. 90. Lit. x 10. b. I . Weed • 



Trinity Term, 41. Eliz. In C. B. 689 

it IS not properly rent ; but quaji^ fum in grofs, and is notiffuing Smith 
out oi the land. For there is not any place appointed for the •^'"'•-^' 
payment thereof; and therefore the conuiee is bound to feck out a»»em, 
the conufor, to pay him. 

Thirdly, In re^rd it being a tiling wherewith the eftatc is 
charged, and the leUee might have paid it (although he is not 
tenant of the freehold), becaufe it is m falvation of his cftate (as 
it was agreed by all the Juftices that he might), this default of 
payment being quafi in him, he being tenant in pofleffion, Whe- 
ther it be a breath of the covenant, whereof he himfelf may take 
advantage? — And all the Justices (except Glanvile) held, 
that it was ; becaufe there is not any covenant, nor apparent in- 
tent, that the leflee (hould difcharge it; and the covenant is ab- 
folutely that he (hall enjoy it ; arid this condition is properly to 
be performed by him who hath the freehold. 

Fourthly, Whether this feoffment hath deftroyed the fii- AufeBmitwl 
ture ufe, which is to arife for non-performance of the con- ^^ '•**•**»•• 
dition? for, if fo, the entry of the tenant for life is not con- {'^**^^* *^^ 
gcable.— And it was refolved, that it had not; for it is a charge performance of 
or burden upon the land, which goes along with the land, m a conditioo, 
whofefoever hands it comes. i\nd being limited to the conufor fe^*^ly» '• <*« 
himfelf, Glakvile conceived it to be a condition unto him; !f*^'^a"^'^» 
but if it had been to a ftranger, to have arifen upon fuch a con- ^y" fubfcoutnt 
dition, the non-performance thereof had been a fpringing ufe feoffment mado 
^uto him ; for now it is merely a tie and charge upon the land, by checonufce* 
which is not deftroyed by the feoffment ; and although it be a fu- 
ture ufe, it may be well raifcd upon non-performance of the con- \^^-* *^* 
dition ; as it was adjudged in Braccbridge* s Cafe [a). Wherefore show.^af. Par. 
it was adjudged for the plaintiff. 137. * 

Fearn. Con. Rem. aoo* Prec. Ch« 72, 73. 5. Com. Dig. 630. 

(a) Plowden,4j6. 

« 

I)ean*s Cafe. Case iq, 

■r\EAN, citizen and merchant oi London^ had called one G^Jrr^/,' The mayor of 
^ alderman of London, ^' fool and knave'' upon the Royal Exchange, ^^« cannot 
in the prefence of divers, and was therefore committed by the Ji * s„ J!II1 

ikT 1 r \ ti n t r •/•I*' i Of the City COttl- 

mayor to Newgate, becaule he would not nnd^lureties for his good mit a pcrfon 
behaviour. By an habeas corpus cum caufa, he procured himfelf to (wlio has jnib- 
be removed into the common pleas ; and there all' this caufc was *'*^^y abufcd'an 
certified ; and that the cuftom was, upon fuch a mifdemeanor, to ""^^^^^ ^""^ 
commit any citizen to prifon, &c.— Walmsley. The juftices furcties for 
of peace ufe, under colour of their authority, to require the good his good be- 
behaviour of every one at their pleafure^ and if they refufe, to *iav»our. 
commit them to prifon. But, I conceive, if they have not good ^^^^ 7^- 
caufe to require lureties for the good behaviour, and the party re- »• l-ev. 51, 107* 
fufe, and is committed to prifon, falfe imprifonment lies ; for the *• *^' *°o- 
ftaiutes of 34. W 35. Edw, 3. c. i. which gave to them that au- '/ro^;^^\j, 
tliority, is principally for vagrant perfons, and fuch like.; and it Latch."^"^* 
15 not ihtended for every private abufe. — Anderson. There are Palm. 130. 
divers ftatVitcs, that for private difcourtefies one Ihall not be im- 3- B^lf- H9« 
prifoned ; and therefore 1 fee not how this cuftom can be main- ^''°' ^*''' '*^' 

, ^ ^ 4* Burr. ^032. 

I. Stran^C) 500, 5. Com. Dig. X97. x* Bac. Abr. 6|Si. 2. Ld. Raym. 1029. %. Salk. 697. 

tained. 



690 Trinity Tfrm, 41. Eliz. In C. B. 

DtAK** Casi. taincd. A man m^' be imprlfoncd for a contempt done in coifft, 
but not for a contempt out of court: and therefore he ought not 
to have been committed for fuch a private abufe. — And by aflcnt 
of THE WHOLE CoDHT, he was difchargcd* 

€asi II. Piper a^a'hift Wyder. 

Eajfer Jtrm^ 36. Eliz, Roil 83. 

Cminterplea 'C'ORMEDON. The tenant vouches the heir of one John Goa^ 
to the voucher. •-*^ fyey within age, and prayed, that the parol demurrcya. The dc- 
Amc, 506. iTiandant counterpleads, that neither the laid John Godfrey, nor any 
p p^^, - of his ancelloio, ever had any thing in tcnementh pradi^is, i^c. 

4. Co. 80. Hereupon they were at iffuef'and the jury found, that tlie faid 

10. Co. 54. John Godfrey was jointly fcifed in fee witli another, who infcofFed 
*• BuCom. xhc futuer of the tenant, &c. — And it was clearly holden by the. 
'59* WHOLE Court, that this vcrdift was found for the tenant. For 

if this joint-tenancy had been pleaded by way of counterplca, it 
had not been a-counteiplca, as appears 8. Men, 7. pi, 5. ; wherefore 
a fortiori being found by verdift ; for there fhall not be any coun- 
terplca, but where it is thereby proved, that he who is vouched 
Cow Ut. 166. a* iind not- fuch an ei^atc whereof he could make a feoffinent : but a 
joint-t* r.aiu may make a feoffment of the entirety with warranty ; 
for he is feiied pKr my ct per tout. And although it be a diflciiin 
j^Mt^i^^ of the moiety, yet the feoffment' is good, j^nd the warranty well 
aiinexed : and when they join in a feoffment witli warranty, every 
one warrants the entire; and that may here be a countcrplea to 
the warranty, but not to the voucher. Wherefore it was ruled 
accordingly. 

Caie li. Lufhford a^ahfl Sanders. 

EaJIcr Term, ^i.E/iz. Roll 2^g2, 

Apfovijo'im TXTASTE by the heir againft the defendant, executor of a lef- 

Wafcth;*tthc ^^ lee for years.' The cafe upon demurrer was. One made a 

IcfTor ft:all cut j^^fg f^,. y^-.^^^ ]yy indenture, wherein was this provifo: '* Pro- 

'mtfl>vf»nfit viDi n ALWAYS, and It IS agreed between the parties, quod an ^ 

ahd not an ex. " fum forct Ct cjjft to the leffor and his heirs, at any and every 

fepthn. ' •♦*. time during tlmtcrm to fell, fell,- ilirub, cut down, and carry 

Amc, 6Sj. 41 away ail ti^e wood i\\\A trees, and all the timber, growing, ftand- 

f. Lev. •505. ** int;, or Lciiig upon any of the prcmifes." Whether this were any 

] Wcod'fcCop. exception out of the Icafe ol the trees, or but a covenant ? was the 

J^^'' quckion : ioi it it were ^n exception, they never were let ; and 

^Y' '^' then wallc lie; siot. — And after argument at the bar,' all the 

CuuKT rcfohxd, tliat it was not an exception of th<r trees, but 

a covenant only. Whcieforc it was adjudged for the plaintiff. 

Vide 3. Hen, 6. pL 45.. 

Casi 13, Armiger a^<rai,fj} the Bifliop of Norwich and Holland. 

I eijler Tcrtfit 4 1 . Eliz, Roll 6 1 9, 




poffcliions void (unlcfs leafes for 

hik blftiop:Ick for a U»ni;CT ■. rn 1)1. n while be f'lls the kc. Ante, zcj. j^o, 601. ]. And. 241. Savil, 
iv\ 3. Co. ^9. Ci( . Jjc. j-'^. 2, Uicwrl. 164. H.«rd. 326. Co. Lit. 45. jo.Co. 59. a.Lecn. 
138, J, L€cn. Jo3. U KoiU K«|J« ;$5* !• KcCi^i. ii. Cg. 73. i. Lev. 333. 3. Bac. Ab. 353. jji' 



Trinity Term, 41. Eliz. In C. B. 69* 

r^cnty-one years, where the ancient rent was re ferved), granted a»mtcjr 
tiiat advowfon to the plaintiff for twenty -one years, which >^'^s r-j^^*''"-^ £ 
confirmed by the dean and chapter ; the advowfon being appendant NoRwicH*and 
to the manor, wjiich he had in right of his bilhoprick. The faid Holi-akd. 
biihop was afterwards tranfla ted ; and during the time that the 
teraporalties were in tlie queen's hands, the chiitch became void ; 
another bifhop was afterwards elefled : the queen, prefented Hoi- 
land the defendant, who was admitted, inftitutcd, and indufted ; 
againft whom, and the biihop, the plaintiff brought a ^w^r^ tmpcdit. 
They pleaded the i. Eliz. c. 19. f. 5.: and, Whether this grant of 
the advowfon be within the ftatute (becaufeit is notfuch an here- 
ditament whereof there can be any annual profit, nor any rent rc- 
fcrved) ? was the queftion.— Secondly, \Vhetlier.tliis grant be 
void againft the queen, as well as againft the bilhop's fucqeflbrf 
— After argument at the bar, it was refolved by the Court, 
that this grant was void by the ftatute; becaufe it is parcel of the 
poflellions and hereditaments of the bilhoprick ; and tliereforc 
void, as well againft the queen as againft the fuccclTor ; for the 
ftatute made it void to all purpofes : but yet it is not fo made • 
void, but that it is good during the time that he who granted it 
continues biihop ; and itfhallbind himfelf, fo as he (hall not avoid 
it. Wherefore it was adjudged accordingly for the defendant, 

Humphrey againft Barns. Cah 14. 

Eafter, Termy 41. £//«. Roll 75 2« * 

"T^EBT on a bill obligatory of i-jl. 13s. 4d. The defendant The pica of 

pleaded a yor<7^« attachment in bar, made in London by owe fordgn attacb^ 
Moultorty to whom Humphrey v,'is indebted of 13I. in his hands, «««</"«« ihcw 
after the original writ purchafed, and before the return of the J^/^l^ jp^JJ^'^p^, 
exigent, or appearance thereupon, and before he had any notice of and if it was 
the fuit in the common pleas. — It was thereupon demurred, and obtained />«- 
adjudged to be no pica. — FiRST,»Becaufe it appeareth not, that the ^^**f^^*t'» »f »• 
13I. attached was parcel of the faid 13I. 13s, 4d. now in demand. ^* 
—Secondly, Eccaufe this attachment was made whilft the fuit 
was depending in the common pleas ; and the queen's court being i, com. Dig. 
poircfled of a caufe, it is infufficient, and cannot be : for, as 424. 427. 
Waljvisley faid, the fuit depending in the queen's court, the 1. Bac. Ab.6^i.' 
faid court is intercfted therein ; and it is againft the dignity thereof 
to have an inferior court meddle witli it : alfo whilft the fuit is 
depending, it is ^uaji in cujlodio. kg\s^ and cannot be meddled with 
by another. As the law is, where one is to be attached by his 
goods at the commpn law, if the goods be diftrained and im- 
pounded, they cauuot be attached.-r^^ ^^^^'^fore it was ^idjudged 
for tiip plaintiff. ' 

Cropwel agaiiiji Peachy. Case 15. 

EafterTerm, 41. f//a. Rcll g^y* 
T^EBT on an obligation, conditioned for the performance of a dtfcodant 
covenants withui a certain indenture, whereof fonie of the cannot plead 
covenants werp in the affirmative, and fome in the negative. He ^"^^^^y^"*^* 
pleaded the indenture, and performance of all the covenants therein nc"atw/ari 
generally. — Ai^d it \vas thereupon demurred ; ^nd without argu-. affirm^^tivc co- 
went adjudged for the plain tiih vtnams, 

^tejijj. Poll. 7^9, Co< U^ 303-^. ^^oor, 856, ^^ob. iiy falm, ^.1. Sid. 87, Cpw^ jyg, 

Mich^elmasi 



•9* 



Michaelmas Term, 

41. and 42. Eliz. In the Queen's Bench. 

-S/r JcKa Popham, Knt. Chief Juftice. 
iS/r Francis Gawdy, Knt J % 

John Clench, F/j^. . (. Jujiices. 

•Edward Fenner, Efq. ^ 

Sir Edward Coke, Knt. Attorney General. 
Sir Thomas Flenoing, Knt. Solicitor Genera/. 



Caswu Barker againjl Bourn. 

^ Hilary Tirm, ^\. Eliz. Roll ^%Y' 
If jixignieiit be T^ RROR. For that in debt againft the heir, on an obh'ga- 
w wJt^^^vf r *^^^" "^^^ ^^ '"^ father, the judgment being againft him 
Ai/ cxecu'ion ." ^ ^y w'^'^^'^^'j execution was awarded by a ffl;^/fl5 ad fatisfa- 
«d (Lja or/, cicrdumy whereas the lands only dcfcendcd unto him oQght to 
/iHOiHiigo have been put in execution, and not his body, nor his other 
ag^tna his bo#!y lands {a). And error for this caufc was brought, tarn in rcddimne 
u/ll oTfn^^^ -i."^^^^^^ 7//«/« inredditione execution's, — And nowTowsE moved, that 
|xtiij>t. *^ itAvas error; for the difference is, where the heir pleads a falfc 
Wow, 52*. P'^^» t\\tx{:^ his body and all his lands are liable to the execution, 
«. Uon. II. as for his own debt ; but if he be condemned by default, or ac- 
Jones, 8S. knowledgeth the aftion, the execution fhall only be of the lands 
J- ***-^^^- 7'- dcfcendcd unto him; and fo is 6. iff 7. Edw, 6. Dyer^ 81.— 
5- Com.^Dig. — Gawdy held it not to be error; for the judgment and execution 
aij. fliall be general, unlefs the heir acknowledgeth the aAion, and 

a. Ld.Raym. fhews that he hath fo much by defcent; as it was in Trewinmcns 
'^*- Cafcy Plcivd. 44C. isf Dyer, 344. But when the heir will not flicw 

that he hath fo much by dclcent, and fo lofeth the benefit which 
the law gives unto him,' it Ihall be intended, that he hath aflcts to 
fatisfy. — Clinch agreed with him— Popham and Fenner were 
abftnr. Wherefore rule was given, that judgment fhould be af- 
iirn ed, unlefs other caufc v/as fhcwn by fiich a day. — And Ta»- 
riELD faid to the Court, that in 19. EHz. m the common pleas, 
in one Lyons Cafe, upon fcarch of all the books and precedents, 
. it was rcfolvcd, that in this cafe execution fhallbe awarded againft 
the heir, as for his proper debt.— And Gawdy faid, that in this 
cafe the error is well affigncd in the judgment ; fo; if it be error, 
it is in the jfudgment. 



(a) See 3. A; 4. WiU. and Mary, c. 14. f. 6. 



Ck%tr, Wakefield agahji Hodgcfon and others. 

Jk ^^.ccfat•nc- TERROR to reverfe a fine. The fine was levied of a reverfion of 
xi\T\\xAC-,:dtn' H^ divers tenements in London^ in Golden-^Lane, The coiiufc« 
v'lVjt other brought a qtihl juris clurr.at, and, iia^qging that, died. The hilr 
ctefcription; and if the conufee die Wfore ^}ie proclaoiation, the heir fMjr caufe then) :a betaadc \ »^ ^^ 
he plead CO parr/ acd atioms fs: the rw^duC; it may be eogroSed £or ih^ A-h^i^ 

brings 



Michaelmas Term, 41. and 42. Eliz. In B. R. *9S 

brings a new quid Juris cidmat. And the defendant in part claimed ^^^"JJ'/*'* 
fee, ind for the other, was ready to attorn {a) ; and the plaintiff Ho'/^*io„ / 
accepted thereof; and to tlie remainder it was awarded, that the and Onitnv 
defendant eat indejine die ; and the fine was chgroflcd, and tlic pro- 
clamations made. 

The First Error affigned was, for that the conufee only is 3. CcSfi. k. 
to liavc the efeftion, whether he will levy the fine with procla- l^ycf» *54- 
mations or not ; and he being dead, the fine ought not to be with ^''"^*^» 44- 
proclamations at the heir's fuift; as l)ycr^ 2^4. is. — But all the 
Court refolved to the contrary ; for the heir hath as well elcftion 
to lUve it with proclamations, as the anceftor; for it is for his 
benefit, and the ftatute dotli not reftrain it. And the rcafoiv of the 
Cafe in Dyer^ why the proclamations there made were ftaycd, 
was, becaufe a formedw wa* depending ; and that was only iii th6 
difcrction of tlie Court. 

A Second Error affigned was, Becaufe the judgment in the ^ n.b. 147. 
quid juris clamat is, " That the fine be engrofled for part only ;** **J«wd.43». 
but here it is engrof&d for the whole. 

But THE Court refolved, it was well enough ; for the bringing 
of the quid juris clamat is not material ; for the conufee might have 
bad the fine engroiled without fuing a quid juris clamat ; and the 
fuing thereof is only for his advantage ; for without fuing thereof 
be could not have had any attornment. Wherefore, although the 
judgment thereby is, that the fine fhall be engrofled for part, yet 
tlic party, if he will, may have all the fine engrofled ; and the pro- 
clamations in tlic time of the heir, after the cngrofling, are well 
enough. 

A Third Error afligned ore tenus y^sis^ for that the fine is *] Vent.1^ 
levied of tenements in Golden- Lane in London ; and there is not Cro. Jac. 13^%, 
any vill, hamlet, brparilh mentioned. — Scdnon allocatur. For the "9. 574.. 
Court faid, that it appeared not unto them, but that might be a ^''°- Car.*6^ 
vill or hamlet ; and it may well be fo intended, unlefs it had been *^vcot^* 
fo allcdged, that the party might have anfwered thereto. Where- Cowp/34^ 
fore the judgment was amrmed. 

(<s) See 23. Eliz. c. 3. ; and 4. & 5. Ann. «. i6. 

Foxley againft Annefley. '' ^^" '• 




fatlores ignoti ilole thoie Ihci^p from the plaintiifF, and brought them muft trav«frfs 
within the fame manor, and there waved them j whereupon the 'he convcrfl nj 
defendant, as bailiff to the queen of his faid manor, fejfed them and caiwM coo- 
as the queen*s goods, to the queen's ufe, which is the fame trover, ^-jL^l ** 
and converfion ; and prays in aid of the queen. Whereupon the 
plaintiff demurred fpecially. — Cvlew for the plaintiff moved, that ^^^' ^"^^ 
the plea was not good. — First, Becaufe it concludes with an aid ^'. infi^M4!* 
frier in tbis aftion, which being perfonal and pofleflTory, and for i. Hawk."64o. 
a chattel only, is not good, and herein aid is not gran table. Vide s-^o™- Dig. 
II. Hen. 4. pi. 9. 14. Hen. 6. pL 5. — Secondly, He juftifies for *^^* 
a fcizure, and anfwers not to the converfion, which is tlie chief *' * *• 
matter in this aftion : and the feizure is not any converfion ; and 
therefore he ought to liave anfwered or traverfed it; as 7. lien, 6. 



694 Michaelmas Term, 41. and 42. EIiz# In B. "R. 

Fox t FT pL 1 3. in confpi racy he juftifies, that he gave evidence to the jury by 
againft . command of the Tufticcs, and it was ruled to be no plea ; for that 
Amk£sley. j^ not any conl'piracy. — Thirdly, The pica is not good; for 
when one juftifies a leizure of goods as w^aved, he ought to (hew^ 
that purfuit was made after the felon, and that he waved them ^ . 
for otherwifc they are not waved. Brooke ** Ejhaysy^ 9. 29. Edii;.^. 
pi. 29. 44. Edw, 3. pL 19. and fo is 37. Hen. 8. 

Yelr. 199, Gawdv and PoPHAxM held, that the plea was not good, for 

that the convcrfion was not anfwcred : he alfo ought not to have 

aid, becaufe it is but a chattel ; and he hath not alledgccJ, tliat he 

hath anfwered for them to the queen; but, that he needed not to 

have alledged any purfuit of the felon. — For P-opham faid, it 

ought to be alledged that the felon fled, for that he was in fear to 

be apprehended, and for that caufe waved them. For if a felon 

carry away goods which he ftole within a manor, and leave them 

{a) 5.00.109.2. there, and at another time goes away, the goods are not waved {a) ; 

Moor, 572. fjji- ^vaving Ihall be where he hath the goods, when he flies for fear 

1* R^l. Abr ^^ ^^ apprehended for them : and the reafon of the forfeiture is, 

f^j. " ' becaufe there was a default in th<^ P?rty robbed, that he did not 

Eurfue him, to have taken the goods 'from him ; and therefore the 
LW gives them to the queen. But it is not necclFary that he be 
purfued for the felony when he leaves the goods, fo^ that he flic? 
for this caufe.— But afterwards, becaufe the plea was not in bar, 
but concKides, Ji rcglm inconfuha^ is'c. they all refolvcd, that the 
judgment could not be in matter of bar: and becaufe aid was not 
grahtable in this cafe, it was awarded, that he fliould aiifwer with- 
out aid. • And fo it was adjudged, 5. Co. 105. 

^*" ♦• Blandford againft Andrews. 

On a bond con- Tr\EBT on an obligation of cight\' pounds, conditioncJ, th^ 

ditioncd to pro- -L^ if the defendant procured a marriage {a) to be had between the 

cureamarriaj?€, plaintiff, and one Br'ui^^ct Palmer, at or before the feaft of 5/. Bar- 
if the obi I eee do *; , ' , , ,. 'j, . *•' , . ^ ^^, , ,- i 

• »ny aft to iVuf- t t?o ' omew t\\(i\\ jic\t tollovving ; that then, he. The Jefendairt 

trate the per- 'pleaded, that the plaintiff, before that fcal!:, came to the faid Brid^d 
'fDrmanoe, the Palmer^ and called her whore; and told lier, that if lie married 
Babfe°^bVt1i '^^^' ^^^ ^o^^ tie Iicr to a poll ; and ufed otlieropprobricAis words 
»uft fhew that ^"^^ l^er ; by reafon whereof die defendant could not procure t\\c 
he endeavoured faid marriage before the faid feall. Whereupon the plaintiff de- 
to procure It. murrcd. — \V iLJA AM9i^ ftrjcant^ movcjd, that this was not any 
Ante, 361. 671. plea ; for he hath not fhcwn that he ufed his endeavour to pro- 
3<.Hcn.6. 16a. ^^^^^ the marriage; for it maybe that, notwithftandingthcfcwords^ 
8. Co. 91. they would have intermarried. — And of that opinion was all 
Co. Lit. 206. THE Court; for the defendant ought to fhew that there was 
^7*d R^* ^ not any default in him, and that he did as much as in him lay to 
i! Wood's^Con! PJ'O^^re it; othcrvvife he doth not fave his obligation : and thcfc 
5, J. ' words fpoken before the day, at one time only, are not fach am 

DougL 693. impediment but that the marriage might have tatencffeft- Where- 
fore it was adjudged for the planitifi^. 

(a) Marriage brocage bonds are now held iUesal and vekl. Prec« Ch. 167* 5>^« 
1. P. Wms. 118. 4' 6« X. Ack. c66. 

Warn 



• Michaelmas Term, 41. and 42, Eliz: In B. R. 69S 

Watts againft Brayns. ^^" 5- 

APPEAL of the murder of her hulband at Fever /ham (which is Awritofa|>pcal 
within the Cinque-ports), The writ' was dircfted to ^'^^ ^'^^^^^ ^-^ 
Lord Colfbam, warden of the Clnque-ports ; who returned cu!qoe port* \% 
the writ^ which was filed, and the body of the defendant void j but on in 
brought to the bar. The plaintiff declares againft liiiti. — And h inj rtanoved, 
Godfrey^ for the defendani, dcnmidtd oytr of the writ and re- with the body, 
turn, which was read; and then he excepted M 11 to it, in regard ^Vn^ch'^^j^'ao^ 
itihould have been diredted to the ihcYiff of Kcni y who is the im- pciiant may de- 
mediate officer to the court, and not to the warden of the Cinque- cUre ajainrt tiie 
fnru. — Tanfield moved, that if the writ were notwelldirefted, appciiet i« r*/- 
all was void, as if it had been direflcd to J, S. Whereford, be- '^^'^^[f^^ 
caufc he is informed that the murder was apparent, and the pri- ^ ' ^^*^' 
fonerat the bar, he prayed that he might be committed to the '^^^^^•n* 
Marjhalfea^ and tliat he might declare againft him in cujhdia ma- , J^oM.lv^h.Vfi, 
refchalli ; for this writ is as none, and void ; and therefore differs 2.Rcii,Ah.596l 
from the cafe of the writ of appeal againft the fervanls of Sir 2. lott. 557. 
Gtcrve Fermor (tf),direfted to thefheriff of the county of iV. which 
was ill for a dcfeft therein.— But the writ being fuch as it was, 
the parties appearing thereupon, it was held, that they fhould not 
be committed, nor a dcclaratron againft them /« cujladia marefchalli : 
but here this is not a writ at all ; wherefore the Juftices would 
advife hereupon. — And the next day, Tanfielj), at his peril, 
declared againft him in cujiodia marefchalli. And the ciefeiidant 2. ^nft. 557. 
maintenant pleaded, in abatement of the writ, that the plaintiff V^^^^"^**" P^- 
had a writ of appeal depending againft him ; and he pleaded it in jl^^awk.^a^', 
hire verba. — And, by the opinion of the Court, he was compel- liBac. Ab.^av 
led to plead over to the felony ; for fo are all the precedents of the i.Ld.Ray.ia^a- 
Court. And upon this pica it was demurred in law. ReJId* 
fojl. 778. • 

{a) Ante, 605. 

Lewen againjl Cox. ^^'" ^ 

Eafler Term, 41. Eliz. Roll 270. 
T1P0N a fpccial verdift the cafe was, Leu^-n devifedlalids to hts A devifc, to « (>;? 
^ two fons equally^ and tlieir heirs: Whether it was ^]^'^^^Z*^^JZ'ib'h^^' 
cftate iu the fons, or that they were tenants in common ? was the'«t £,!>/'" crcltc* 

qucfti'on. . ^ a len-^ncy in 

Coke, Attorney General^ fhewed that^ they were j 01 ntcnants. common. 
For firft. It rs agreed, that, a devife to two and their heirs is a joint ^""» S^-43** 
eftatc in them, notwithftanding the opinion in 30. Hen. 8. ; and ^''^* 
foit hath been oftentimes agreed; and it is as clear, tlmt ^l^i^ co^LU^6e ^^' 
word equallyyhy the rule of the common law, unlefs it be in a will, i^ab. noic(4). 
alters not the eftate ; Hut the intent of the dcviibr is to be fearched : 6. Co. 16. b. 
and as to that, he conceived that it cannot make a tenancy in com- i-Atk.403,474. 
raon in the devifor's intent ; for it figniiies only an unity ^nd \ ^^^\ "J^* 
identity of eftate, and there cannot be a more equal eftatc than ,|p"fr?wm. 
to tliem jointly ; and when the words of a dcvife do not fhew anv 14. 19. 
apparent intent to change the eftatc which the law limits, it would 1. Eq. Caf. Ab. 
be violence to the words to diftort them to another fcnfc. The ^^i- pl- 'o- 
manner alfo of placing the word ** equally'^ is to be ohferved ; bnt siik.^^^V.AW 
if it had been to thcmand their heirs equally, foas the intent rrtight cam. ss. 92. * 
have been colleftcd that their heirs^ Ihould have it equally, it 12. Mod. 156. 
vould peradvcnturc have been ftronger; for then their heirs mi?ht ^•^*^- Raym. 

62Z. 625. 
2. Peer. will. 280. 3. Bwvn Par# Caf. 297. 4. Brown Par. Caf. 224. i. Wilfop, J65* j4t. 
ft. Ccoi. Da^ 175. Cowp. 66o, 



^9^ Michaelmas Term, 41. and 42. Eliz. InB.R. 

LiviriM not both have had it, if it were a joint cftate. And therefore 29: EEz, 

Icoj^' betwixt Pettywade and Coke in this court, where one had three 

** houfeSy and three fons, and devifed to every of his three fons'an 

houfe in tail ; and if any of them died without iflue, thajt the two 

furvivors fliould have his part, equally to be divided betwixt them ; 

it was doubted whateftate the two fhould have in that part, after 

the deceafe of one of them without iflue : and it was ruled, for life ; 

Ante, 53. for the word part doth not enlarge the eftate; and that by thcfe 

Port. 7^9. words, ** equaliy to be divided^^* they were tenants in common, and 

3. Co. 35^. b. not jointenants. But there the words (hewed the devifor's intent, 

that they fhould be feveral and divided eftates : and it was ruled 

there, that «* equally divided,'^ and " equally to be divided^'' are all 

one : and fo it was ruled here, in Dickins v. Marjhal {a) : and fo 

, alfo in 1 7. Eliz, where a devife was made to two equally, it was held 

to be a joint eilate. But Shephcard's Cafe {^), in i8.£//2. is good 

law, that a devife to two equally, and to the heirs of their bodies, 

made a tenancy in common ; for as the inheritance is in common, 

fo his intent (hall be colleftcd for the particular eftate {quod Fen- 

"NEKconceJIt) ; but it is not fohere. 

' Altham ^ contra; for if they be not tenants, in common, this 
word " equally** would be vain ; and no word in a devife ^r grant 
fhall be void, if it may have any good expofition. In 2. isf 3. 
c:h>.Car. 75. -^^^ ^ Mar, Bendloe^ it is ruled, that a devife to two, *^ part end 
** part like^** made a tenancy in common ; for there are no parts 
betwixt jointenants ; and therefore his intent appears, that they 
fhould be tenants in common ; for there is not any word in a deed 
or will which fliall be idle, if it may be taken to any reafonablc in- 
tent : and to that purpofe cited Bald's Cafe^ Dyer^ 14. 

Fenveb. held, that they were jointenants ; for jointenants have 
an equal eftate, and equal profit; and a will is to be expounded 
€.Co. 16. b. after the judgment of the common law, when the intent appean 
Poft. 743. not to the contrary. And therefore, if a devife be to baron and 
fenieyZnA a third pcrfon, lequalher^ they are jointenants, as by pur- 
chafe, during the coverture, and the baron and feme have but a 
moiety. - 

PoPHAM } contra ; for the word equally hath two fignifications r 
in the one, it refers to the eftate ; in the other, to the quantity of 
the land : and here, To which of them tliis fhall be referred ? was the 
queftion. If one devife his goods equally to twp, there is not any 
jointenancy ; for squally Ihews his intention to give to either of 
them an equal proportion : {o of a devife of a term to two equallvv 
they are tenants in common ; for otherwife there fhould not be 
any equality in property, if all fliould go to tlic furvivor : but a 
Ant% 330. devife of land to two equally, they are jointenants ; for there is not 
3. Co. 39. b. any inequality or lofs, although the furvivor fhould have all ; for the 
other can have it but during his life. But if a devife were to two 
and their heirs equally, or part and part like, there is a tenancy in 
common ; for every one of their heirs fhall have it : and if the one 
fhould have ajl by the furvivorfhip, it is not equal as to their heir: 
and fo here they are tenants in common ; and there is not any dif- 
ference between this and Shepheard*s Cafe* , 

Clench agreed with him /« omnlhus. And afterwards it wa^ 
adjudged accordingly, that it was -but a tenancy, in common ; and 
affirmed in a writ of error In the exchequer, upon the opinion of 
(f) S«e the cafe four Vfrfus three (r). 
•CDcnn on the demifeef C*ikin v. Gaikin. Cowpcr 657. ^ 

(«) Tria. Term, 35. £li2. ante, 330* (^) Git :d ante, 443* 



Mi-luelcnas Term,' 41. and 42. lUiz. In B. R'^ ?^y 

Bold a^ainJiStccr^'.' '' • ' ;' ''cwsV.''' 

Micbaelmai Tefm," ^o, i^f 41. ^/«- ^«// JoS. 

PJECTIONE FIRM^. And" declaretli of a I^afe, to begin The miftake of 
•*-' poft msrtem of Thomajine Chapman and of 7homas Chapman ; * fi™amc in a 
andallcdges, quod pradUf. Thmajn^ Cbapmfin^ and Thomas Champ- cj^w^lifld 
«j« were dead, and fo miftakes Champmdn for Chapman : and for not material, 
this caufc crrOr'Was aiffigncd ; for the leafe is not then begun. — ,.Lutwich 
But THE Court held, qmd pradlHus Thomas ws^ fafficient, a^4 Cowp!^4it^^t* 
the addition of his firname was vain ; and it fllall be ihtcncW 3. TcrmKcp/" 
to be the fame perfon. Wherefore it wasafBrmed. : 35«- 

Hayford agatnft Andrews. • •*-' caik i. * 

r\EBT upon an obligation, conditioned for the paytncnt of Oebt^ponboiid' 
■*^ twenty pounds at a day certain. The defendant pleads, that conditioned for' 
before the day, the plaintiff, in refpeft of a trclpafs made by hi$ payment at a 
beafts in the defendant's land, gave unto, him a longer day of pay- p.*^*'? ^^^' - 
mcnt, which is not yet come. 'And it was thtrcirpon demurred, p^j^tiffgavc* 
and argued at the bar, that in regard it was bcforfe the day^^tHjC longer day of ' 
plaintiff might well by word defer it ; .and in proof thereof were payment is bad. 
citcd,3l. ^^fe, 17. 12. Rich. 2. " Batr.]' 243. 2^. Hen. 8. /j/.q, Ante,455. 672; 
—The Court, without argument, held* it to be nrt plea; for an uHm.j. pLi6^ 
agreement by parol cannot difpenfe with ah obligation. But the »• Co. 155. 
cafe of 12. Rich. 2. is good law ; for tliere th0 agreement at the ^*"s. 73- . 
day to reuin is as a payment, and thereby the obligation is dif- *' ^llj" ^*^' 
charged. Wherefore it was adjudged for the plaintiff (a). cl Llt!a?3! b. 

(a) Vide Cowper, 47. iq point, and 5. Cpau Pifi. a6i. ' • . 

•Hunt's Cafe. - ' ' • ca««9. 

TJUNT and others. were indiftcd before the mayor and alder- Juftxcs of tht 
•*"■' men oi Hereford y lieiiig jufticcs of peace and' gaol. deh'v9ry^ peace have no 
upoathc 5. £//Js. c. 14. for forging tlie will oioxi^ Davics. Except j""^^*^'°" *" 
tion was taken, bccaufe by the ftatutc they had not any jpowcr to ^^luliJjA. 
take fuch indiftment ; but, the power qf enquiring thereof is givei^i Ante, 87. 601. 
to the Jufticcs of <D^^ and terminer and of gaol-delivery only i^ a. Ron. a b. 96. 
and fo it was ruled in 31. EUz. in Smith's Cafe. — Wlifireforc tor ^•Hawk.p.c.59. 
tbiscaufehe wasdifcharged. . 1 _ . 2. Hale, 44. 

MUa. 04*'. 

EdenVCafe, *> Caszio. 

P DEN and others were indlfted upon the 8. Hen. 6. c. 9. .of xhemirreciul 
•'-' forcible entry ; for that he, and divers others in the indift-.o^'a ftacute ti- 




pcllcdtf;r^<liflcifed.*' — But it was faid, that the printed books, madegoodat ar 
and alio the parliament roll, is in the disjundive ; andtlicrcforB:C'»>maniaw. ; 
mn aUccatur.—AnornEK Exception was, Bccaofc the ftatutc is,^'*^307-»3^, 
*' If any feoffment or difcontinuance thereof be made," &c. and a. Hale, 17a. . 
the ftatute reciting this word " thereof was left out.— And for '•Com.Dig.zji,^ 
lhi§ caufc held to be ill ; for thsre.is nQt.aliy. fuch ftatute.; and *"*^*- 353*. 
the mifrccitol of a ftatute is caufe to avoid it. — It was then poKcd^Dougi,^ 97, , 
that it was a good indiftment foe riot, although it ww void URpa 
tht Hgiiute.—Sed m^ etll^atur i ioh biing^oid for the puncipaf, *' 



^^^ }4xQ\^\tti^sXs!^.i 41* ^nd 42. Wa* tn B. ^« 

^'^•"'•^•** it cannot be good for tlic refidue. Wherefore they were dif- 
charged. 2. Sen. 7. ^/. iq^ .6. Hen. 7. />/. 5, 1I4 iw- 4.//. 41* 
18. ^rfw* 4. />/. lO* ' XI, Heni 7. /^/. i2. 

^.pAinu; -\ ^ ^ Steverton tf^^/Vj? Scrogs. 

• Trinity firm, 40, EH*: R9II I139, if lijl* 

Theloi^oftKc IJ.EPLEVINi The defendant made coriufance, as bailiff of* 
manor muil '^ Oliver Scrogs ; for that the place, where, &C. is within thtf 
^^ * pSJ°7 jurifdiftion of the leet of the manor of RehoU, whcrtof the faid 
andnoTthein. ^' S<^rogs IS, and tempore quo y Was lord ;. and Ihews, that at a lect 
l)abiunts of t^e holdcn there, fuch d day and ^rear, it wa$ pfefented by the jury^ 
^yUi, excejjt^y ' that there was not within the vill any pillory or tumbrel to pu- 
fpccial coitom } j^jfh offenders ; and therefore the vill was amerced to 20s. : and 
U a cTufc^ fliews, that the plaintiff, at the time of the taking, was an inha- 
forfeiture, en- bitant there ; and be'caufe he did not pay that amercement, but 
q^irableatthe iittprly refufed to pay the 20s. therefore, the defendant, as bailiff of 
icct. '* the manor, diilraiiiedj &c. And it was hereupon demurred. 

Ante, 125. WivcHy for ibe plaintif. This plea is not good, neither for 

kitchen, 13. a* the matter noV manner thereof ; for ^he inhabitants of a rill art 
Cartl^^'^°^' ^^^ bound to provide, either pillory or tumbrel (<»), but the lord 
Fkw bk. a!' of the lect pjtily ; for they are ncceffary for tlie execution of jufticc, 
ch. i«. f! 19. which the lord is to fee to be executed : and if be doth not provide 
a.wafon,20* the'm, it u Caufc of feizure ; as Z* Jtlen. 4* pL 17. the abbot of 
' 5/. j^Iiaris was to procure a gaol-delivery of the prisoners vitb- 
(*) *. Hawk, in the liberty, bthcrwife it was a forfeiture (h) ; and the ila* 
»H' ^ . tute of 18. Edu/. 2. c. 18. '^hich fets down what things Ihall be en- 
quired inleets, doth not appoint this to "be enquired of there ; and 
it is enquirablc only in the eyre. It is not good for the manner 
alfo, Firft, Bccaufe it is alledged, that the -plaintiff did not pat 
the amercement i and he doth not aver that any other of tlic vill 
had not paid it. Secondly, He doth pot alledge that the plaintitf 
t^as an inhabitant there at the time of the amercement, but at ihf' 
\' ■' tittit of the taking, &c. Wherefore, &c.— And for thefc defaults, 
• '^ ' tHECouiT'heldcIealrly the plea to be ilU and adjudged it for tht 
-.plaintiff. — But Popham, Gawdy, and Fenner (Clench «*- 
jenu)j held, that it was not good for the matter ; for the pillory anci 
tumbrel ought to be provided by the lord of the liberty, and not by 
' , tSic vill, unlefs there be a prefcription to the Contrary, which ought 
*' 1 to be fpecially alledged ; for they being for the execution of juf*^ 

' tice within the liberty, he ought to fee it to be done. 

^cOfthebiauir' And Popham faidt that the defendant, as bailiff of the manor, 
'^ * ^** ^i?" ^^"^^^^ diftraio for sm. amercement, by reafon of his office, without 
^TStTTTs. ''^^P^^**^ warrant from tbe fteward or lord, no more thanalhcriff 
sidk. 1^ may levy amcrcanentt q£ this <^ourt without warrant.— But Gawp^ 
Mool*, 5744 ^ contra^ that he nay diftrain for Uwfuji ^focroeiQeats, by reafoh of 
^. Mod. 1^. the office, hxxt he taanot enter for a condition broken, as 5. EHX' 
^••HMpfu F. c.^/; 222. is.^-Bnt^lhe'prinQipal matter it wai adjudged ut/u^ra, 
fS^iB,. ^Ae^pbintiff. . - K^ 

- *"• u 4. .. ^ ..*..-•.. •' 

Jtuffcf 



Michaelmas Tertd, 41 * add 41 . Eliz. Ta B« R * $99 

I uflfer againft Legar. ^*«* *** 

r^ROR of a jiidgratint in L^me. The eitor affigrtcd was, Be- Jadgment In 
-• caufe that iti d^bt the defendant wds acquitted for part, and ''*'"*■" '"^'^ 



nor court re- 



for the rcfidue the plainfifF recovered, and there was not anyjudg- vcrfed, becauft 
meat, qmd' (pierens Jit in miferkordla^^^Ci — And for this canfe it was quod fuergns Ji^ 
revcried. And at the fame time another judgment in Worcejier be- »'« ^S^i^rdi^ 
twfccn Chef9ld ^nd Wyot was rcverfcd for this caufc [a). AmeT**^I 

Dyer, 89. S. Co. 61. a. Moor, 692. s. Com, Dig. 335. 5. Com^ Dig. 178. Cowp. lo* 
fa) Tbe ooofffion of this judgme&t Is now ainendiibk bj 16. * 17. Gar. a « c. S. an4 
4. & s* *^^^- «• <^- ' 

Harris againfi Jay^ . Ca<i 13* 

npRESPASS, Upon a fpecial vcrdift the cafe w4s, That thcTheiordofa 
^ queen's auditor and furveyor for the county of Northampton manor, or hSs 
appointed a fteward for one of the manors pro Hid vice ; he kept the ^^^^ ^jw^ 
courts et in plena curia granted by copy land which anciently had ^'^J^^^^JfJJJ 
been copyhold^, and efcheated to the queen for felony, ^ the dc- anciwnly had. 
fendant and his heirs, and received a iine for it, which was an^ been copyhold, 
fwered to the queen : and^ Whether tliis were a good grant by though apon 
copy ? was the queftion. ^"^^ ^ ^ 

First, It was rcfolvcd, that a copyhold efcheated, and w6idi,^",Sn^fo^* 
hath been kept in the lord's hands for divers years, may bcgrijited many years, but 
over by copy by the lord liimfelf • but, Whetiier it may be granted ^^^^ » %!^^% M 
by the fteward ? was the doubt. — And it was refolvcd,'that it well '^ " "o^ an aft 
tnay be granted ; for he is in place pf the lord, if he be v«ry fteward. ^"t^^by a 

S£co>fPLY, Whether this appointment of a fteward by the au- fteward </«/A9i 
ditorand furveyor be good, or noti — And refolved, that it was not j only* 
fortliey Iiave not any authority to appoint ftewards, tliconebeing P^^* 75S* 
to take th« accounts, the other to furvey the land. i.Roli.Ab.498* 

Thirdly, Admitting he is not fteward in right, yet he fitting 4- Co. 30* a. 
in court, and granting this copy, and*admitting him, and the fine 9°*.^**- S^-*** 
hcbg anAvcred to the queen,. W hether it be good, or not ?— B AcoN p*p^' V[\ 
moved, that it was good ; for afts done by an officer infatlOy and Moor,iii4 »36» 
not dejuro^ are good -, as 9. Edto. 4. pL 1^ a£ls done by a kine an 2. Leon. 45. 
tifurperare good : fo if one being created biftiop, the former hilhop O^m, 47. 
not bcin^ deprived nor removed, admits one to a bendice upon a i'^'tf^*^'^* 
prefentation, 6r collates by lapfc, thefe are good, ind not avoicf- Gilb.*TaJaat. 
able. — ^od curia concept; for the law favours afts of One in a re* ^i^' 
puted authority j and the.infcriorlball never enquire if his autho- 
rity be lawful : and 2. Mdwi 6* Br^ *' Copy,'* 26. It was held, that 
grant by copy by onp in court Who hath no authority to hold 
court, is good. 

Gawdy* The grant is void, for it is not t thing of neceflity ; 
fcut things of nccelfity done by one who is but in a reputed au- 
thority, are good. And here this new grant is in prejuciiceto tho 
queen, Who is lady of the manor : and relied upon 4. If en. 7. 

PoFHAM. A&s done by one who keeps court as fteward, 
without authority, if they come in by prcfcntment from the jury, 
or of neceflity, are good j as an admittance of the heir upon a pre- ^ 
fcntmcnt, or admittance by a fuf render to an ufe, and a prefenta- 
tion of nufances before him, <re good 4 but afts x^oluntary, as the 
erantofa copyhold, is'notgdod,^ And if a lord commands his 
Ufward, that he ii^l not grant fuch lands.by copy, if he grants it, 

. Aaaa it 



, 7^^ ' Michaelmas Term, 41. and 4Z. Eliz, In B. R. 

• 1 

Hariis' it is void ; fo if he dimimfh the ancient renti and fcrvice^^ jt is \' 
miainjt y^jj copy.— Fenner agtccd with them in omnibus. Wherefore it 

' J^^*' was adjudged for the plaintiff. 4.C<?. 30. ' 

,Ca«« 14. Morning againft Knop. 

i^. If apromife^ A SSUMPSIT. The cafe was, An infant beingbound in a bond 
attcr f«il ag^ ^^ for the payment of 17I. at his full age, in confideratlon that 
gWcn^duringin- ^^^ plaintiff the obligee Will ftay the fiit which he hath begun 
fancy, in confi- againft him by original, and not caufe nira to be arretted thcrc- 
dcrat^on of for- Upon, he affumed, that he would pay the 17 1. at a certain day after, 
bwancc, U Upon non ajfumpjit pleaded, it was found for the plaintiff ; and al- 
V^*' ledged in arreft of judginent, tliat this was not any coniideration to 

groufnd an ajfumpjiv\ and in proof thereof the cafe of Stone v. Withi-- 
(a) Anttii \i^*;pole {a) was cited ; for the bond not being fuf&cient to bind him, 
f.RoH. Ab. 18. there is not any caufe for him to make this offumpfiL^hnA of that 
Pyer, iji, m Qpi^iQ^ was Fenner ; but Clench cMtra, — £/» caterisjufii' 
i.Ld6n.TT4. tiariisHibfentibuSy adJQurnalur. 
3. Bac. Ab.x46. f . Term Rep. 64S. 

^ASE 15. Sherwood agahtjl Woodward. 

A prpmifc to A SSUMPSIT. Whereas he fold to the defendant's fon certain 
dwaVion^that weights of chccfc ; the defendant, in confideratioa the plain- 

the plaintiff tiff would deliver the faid chcefe to*his laid fon, affumed, that if the 
Would delivcf fon did not p^ifor themy then he would {a) \ and for non-payment the 
Icods, which he'aftion was brought. Upon non alpcmpjit pleadrf, and found for the 
hadi^cforifiiJ, plaintiff, it was moved by Godfrev in arreft of judgment, that 
dam's fdn U ^^^^ was not any coniideration ; tor it i<5 no more than what the, 
good. * law appoints, to deliver that which he. fold, the property whercol 
i.RoU.Ab.i2. is in the fon by the fale. — But GAwbv'and Fsnnbr held it to be 
Cowp. %%j, a gopd Qonfideration ; for it is an eaft to the bargainee to have them 
j^'cria Rep. without luit, which peradventure otherwife lie could not have had. 
And although the bargainee may take them in this cafe, the bar- 
gainor is not bound to deliver them ; and there is a new zGt done 
by him upon this agreement, and it is art eafc to the vendee: 
and 12. H^n. 7. is, that to deliver the goods of the party himfelf at 
another place^ is a good accord. Wherefore^ cateris yufiitiariii 
nbjhuibuj^ they adjudged it for the plaintiff. 

*(«) Vide 29. Car. 2. c, 3. 

^**^ '^ Brereton agairtft Evans. 

lilt chaelmai Term t 41. W 42. £//«. 
Ifi debt tor rent T^EBT by Brereton and his wife againft the defendant for ar- 
521f^"^poo r** rearages of a rent upon a leafc for years- made by the feme and 

kaibby Wr and hcr-firft hufbaiid to the defendant by indenture. The defendant 

tier Mi huf. pleaded, that the anceftoc of the firft baron wais feifed in fee { and 
band, it it a that it defccnded to the firft baron^ and he was fole feifed ; and fo 
S^rfTh^f * thc/«w^ had nothing at the time of the leafc made. And-dierc- 
kand mMsfiU ^P^^ ^^^ plainuff demurred in Jiaw. 

fitfid, a«d ebat Y^AKBEKTOS^/erJeani^ for the plaintiffs moved, thaVthis was not 
ihe had nothiDg any plea ; for the leafe being by mdeuture, xht feme hath the rc- 
lntheJand«, verlioa by.cftoppel againft the Icflee, and the defendant cannot 
^^ '^1" contradid it, and fay that (lie hath nothing : and in proof 
J:^|^^*'-*54-. thereof was cited u. Hen. 4. pi. i. and 2. Hen. 5. pi. 7-— 
C0.Ut.354.365, But AIL THE Justices refolved, that it was a good pica; 
2.Com.Dis.57i. for they faid, there was a difference betwixt u. Hen. 4. pi* i- 
$X9mJ)i|.a70. yxd tlus cafe: for when two join ia a finc^ or matter of rc- 

WTOg 



Michaelmas Term, 41 . and 42. Eliz. In B. R. 7^ 

cord, he who accepts of them is concluded to fay, but that Brihiitox' 
both gave it: but where it is by ^ced iris otherwiic ; for that -. ^f^'^^^ ' 
cannot enure from one by way of iiilicreft, and from the other* ». 

by way of cftoppel ; for one deed cannot fo inure to two 'in- 
tents. Alfo, when two join in a deed, and the otie only hath 
the intcrcft, it enures by way of confirmation from the other, 
and not by way of cftoppel. But here, this can neither be an Co. L«t. 45, n» 
dtoppcl, nor a confirmation*; for the deed is utterly void as to the ^"gj^^^br. • 
fmcy Ihe being covert; as 45. Eciw. 3. pL ii; 48. £dw. 3. ^^^ ^^ ' 
fi. 12. and 29. Hen, S: Br. *^Fatts ewrolled^"^ 4. And it cannot be 
an cftoppel, bccaufe an cftoppel ought to be mutual on both parts.; 
and a deed of a/^mf ftfi;«-/ cannot cftop her, and the deed carmot 
bind her to any cffca. Wherefore it was adjudged for the defendant. 

Hogobert /7f j/;//? Hokeley and Spike, / easily, 

ACCOMPT againft two. One of the defendants acknowledged i^«lj'^^ *:^o - 
the aftion ; the other pleaded, «' uruptesfm rfceher, ^c. And faiTn JfT-'"^ 
judgment was prefently given againft him who acknowledged the count die, th« 
aftion; and iffue joined upon the otiier, and found againft the writ ihaii only 
defendant; and judgment was alfo given againft him. — Kemp abate f«wt/ that 
faid, that in the time of Wray, Chief Juftict, it was adjudged, ^^<«<**"'- 
that where one of the defendants acknowledged tlieaftion, that it x. Strange, 194. . 
ihould bind his companion, and the entire judgment fhould be ^Jiy* 'S'; 
given againft both.— Then Daniel, /^yV^w/, moved, that one of '•^'";°*?'.5^' 
the defendants was dead, and fo the whole biHlhould abate, al- 
though it were after the judgment ^ and to that purpofe cited 
i\,Edvj, 3 fl. 32. and 22,£</w. 3. pL 8. — ButGAWoy conceiv- 
ed, it ftiould. not abate the writ but againft that defendant only 
who was dead [a). Vide 1, Hen, 7, pL a, 22. Edw. 3. pL 87. i. 
4.7/^.4.' />/.*!» — Et adjournatur, 

I- (a) By 8. & 9. WiH. 3. cl xo. M one de* being fuggehcd on the. roll* the t&xon fliatt 
fendantdie, and the afiion Cumvc againil proceed agalnfl the furviving 4efen(iant, 
tlK other, it Ihall not abate; but the death -I *• 

Marfli againft Vauhan and Yjeal, c>lm tI. * 

pONSPIKACY. The defendant? pleaded not guilty, and the jf two be in- 
^^ one was found guilty and the other not. And it was here- diaedforacon* . 
upon moved, that the bill fliould abate ; for it ought to.be aeainft rpirac^, and cm 
twoi and the one cannot confoire alone ; and the one being ^e"u|},"*^«*i 
acquitted, the otlicr folc cannot be attainted ; and fo is ii.Hen.4. ^^^^^ 
pi 2. %,H<n.4,pLh. 22:Rich.z.''Bre.''SiZ. 22. -4^/r, 77. ' ""/ 
28. JJJifc,i2. ''Br.'' iij.-^And of that opinion was the whole ^.Hcm. 4. pi.6, , 
Court here, that a writ of confpiracy lies not, nor is maintain- tv/iff. pi, u, , 
able upon this^ verdia. B\>t an a£l;ion upon the cafe,, in nature ^•^•^•-OT- * » 
of a confpiracy,. might have been brought in tliis <afe(<>), ^[r^ji'^^'J^^* 
Wherefore it was adjudged for the defendant. ,2. Mod. 208. * 

I. Wilf. tio, 6. Mod. 170. I. Saoiid* %j%, z^o* Raym, tjSt x8q. . z- Keb. 497. i Stra.Tf44, f<^^.. ' 
i2i7. Utch, 80. 162. BuL N, P. i^ i.Hawk,P. g. 351, (-) (;ai;h,4i6, f. N. F, li«r * 
CfX). Jac. ip4. Cro. Car. 239. 3, Mod, 220. , '" 

, " , ' ' ' * "• •■'■}'' 

, WUliatua againft Whytttey. ■ ^ , , ^ Casi i9., . 
pJEGTIONE FIRM^, of a Jcafc of Henry Faughan at Afodas.tucicQr^tnuU 
•^ of lands in Lower: Mocias, The -^leferidant pleaded- not ♦'»*J^* A»^'«^ 
guilty, and found againft him; and it was movpd tb Ber^i mil- 2!JJgumV7r^ 
rria^: for the venire facias ^2L%zwzrdtd irdni Jrfiifctj^iwiircas St^he place wiieit 
fug)it to have bfCd frpm Lower Atockas » the iifue being xr^t <f^%- the Unds in 

queftlon arc«|i 

^a a 3 ^(^ ^ ^^ '* ^o<n< ^^i^- a(£ 



9oa Mxchadinas Term, 41 • and 41. Eliz, In K R. 

WfirtiAMi ^ut if the leafe had been traverfed, it had been otherwife;— And 
^«»V of that opinion w» the whole Court, Wherefore the juclg-» 
WnTTwsr. ipept wj» flayed («). 

(ip) But noWf by 4. A S* ^'^^^^ c 16. the vtmu ihiUl be ^ <«r/>0'( tmataiu*^ 

Cass ftp. Umble againfi Fiflier. 

ptbi/br a year's "pvEBTf fof rent upon a leafc for ycars* payaHe at four terms, 
tent, szzJrpM Xj ^-^^ ^^ Annunciationj Midfwnmcr^ MichaelmaSj and the Nu" ' 
Wy-dayj<»fj/^.^— ^^ . ^^^j fhews, that the rent was ^Lvxtixr pro uno a^mo intcpo^ fcU 
^^^ licet afefto AnyiunUatmiH 40. ufqiicfejium yinnuntiat^ 41. a retro Juit^ 

' et adhuc exifi'u. The (f^fcndant pleaded mn debet ^ ^nd found agaiuil 

*' 1^^^*^ '* him. And it was now moved in arreft of judgment, that it ap- 
Yeiv. 74. * p^ars by the declaration, tliat there are but tliree rent days arrear ; 
Sed vide for a cxcludcs the firft feaft qf the jlnnuntiat. and ufyuc cxcludca 

3.Keb.534. th^ j^ft. But FosTER moved, that the v/z. fhoi/ld be void, 
^\^'ii^ltt'eL^^^^^ '^ ^^ declared, that it is zntd^r fro uno anno hitegro.^^'RMt 
.jhat botbffaib "^"^ CouRT held the declaration to be ill; for if the y/z, flioiild 
ftaU be uken be Toid, It would not appear when the year fhould begin.-^But 
inciufiveiy. Gawdy faid, if it had bcent that it was arrear ^fijio Jnnuntia- 
^^^f^^^'i^S- tionis 40. pro uno annOy viz. ufque ad fejlnm Annuntiaf, 4I. there 
^rMod' 96. ^^ ^'^" fl^ould be void ; but not here, Wherefore it was adjudg- 
sidk. uu ' cd for the defendant, 
|«d. R^ym. Sr9. 896. Doitgl. 53. n., (15.) 

Cas. ^u ■ ^^^'«" ^^^'^^ ^^^^• 

To pay a tenth pROHTBlTION for fuing for tithes of the rakiiigti of barley, 

cock for tithe of ■*• And allcdgfth a prcfcription to make the barley into cocks, 

bailey an^ th$ ^^^ ^^ pj^y ^|^^ tenth CQck in fatisfaftion of tlie tithes of the barley» 

the She of ^^ ^^^ ^^ ^^^ raklngs minus Wiluntari}3i\(\iQvkd, It was hereupon de* 

wool on a ^/»r- murrcd, bccaufe he doth not aver that thofc rakings wcrt minus 

gkuiar Jay I not volwitarii difperfed.^BACON, who moved it, faid, that in ^j.Eiiz^ 

to pay for cattle it was ruled jn the cfommon pleas, in one Jdams* Caft\ that a pre- 

oT'toiigh^w' fc^'^P^'^^ t^ f^y ^^ ^^^^b ^^^^ generally, in fatisfaflion of al| 

topjyafuinin''^"S«» was not. good s for he might leave the greater part of 

lieu of wu«)d(ar the corn in rakings. — But A?.t. the Court held, that the pre- 

fudi are good fcription was good, and there needed not any avcrnjent ; but tJiat 

JTho't'T*' ^^S"^ to come on thcother part if be would, — Secondly, He 

SgS)"eMkTng$ fu^ for tithe of wool, and allcdccth a cuftom to pay it every 

^wtttmlhuiv year at Lammas^day\ and that he let it out, &c. It was thereupoa 

lwr#tf/i#difperf- moved, that it was not good, for this is not z modus d^dmanS', 

cd, and the duf- but for the time only, which is to be tried in the fpiritual court, 

th^it^^nL — B"^ '*'«E Court held it to be good ; for it is due dejurey when it 

of thto^muft be is clipped ; but by prefcription it may be fet out all together at an- 

fravo^, other day, and that is good ; and if the fpiritual court will not 

Ante) 365. allow thereof, as it is here allcdged that they will not, it is fit to 

44«. 475. 6<o. prohibit them. — Thirdly, He prefcribed,. that for yOung eattlc 

i.RoU.Abr^ reared for the pail; to be milch kine, or for the plough, no tithes 

JjS' ^60* have been accuftomcd to be paid. And it was thereupon demurred, 

B.T.'h! lo't?' *^^ adjudged a good prefcription ; for tliey are for the public 

J?reeiAart* 335. weal, and the parfon is to have benefit of them in another kind, 

Biirr* 1873. And it was held, that for pafture9 pf fuch cattle no tithes are du«, 

fbrthereafon zfordaid. — Foi/rthly, He prefcribed, that for all 

' wood combufliblet he ufed to pay a penny, called vmhe^th-^penny^ 

' ^ iatisfaAioa Ua all tithes thercof.^And it was thereupon de- 



Michaelmas Tertn, 41. and 42. Efiz. In B. R. 

mDrred ;, and rt was a4jyjfig!:4 to be a good pr^fcfifiUQ^- ]Rifthly, ''4taikft 
For other kind of tidies, he allcdgefi alXb at(ier iufcb payfnpnU gt 'Hvk.' 
the like fufns, &c. r{ ^|<W pmnes n Jingui^ perfi\n4t^^ri(lQre$ di^ 
tsfc, hav« ufcd to accept Jthcrei^^ &c. .Tiic defenj?laixt^f?aY€rifeti), 
^mdomnes etjingula^ ^c» had not accepted. It wa$;;jth^reiipon 
demurred ; forlie ouglu to liave tfayc^^d th^ cuftom aikdgc4y iU>4 
not qucdomnes ^i ^nguUy i^c.-dii^ HOtr accept, i for^bflf ^Afa^iy 
of tiiem did not acc«pr» he overthrows (lie.prejK^riptiorif wl^ich )S . 
not reafonablc. — ^An4 fo wa^ the opiiiiQi^ , of Tj/£,jPpi/R^. 
Wherefore it was a<^ft4ged^ ^id pro^ibitioJlH. , ::;::: .yr--. ; 

Wichals tf^<2//j/? Johzis* * : .. T.. '.' : Cah ia/ 

A 8SUMPSIT, And detlares, That in confideraflon th^t thte A promlfe 
■^ plaintiff, at the inftahc? of the defendant, had i)r6ra?fcd to pay JSff/'^ra*f«"'a 
noL to one Rogers, wherein' the defendant was indebted to the JJJ^j^J^n* 
faid Ro^rs \ that the dcfcndiint affumW he would pajr'to . tht fldewtion to 
plaintiff^thi^ laol. wheii h^ Ih^^d be reqnirfed. After Verdi ft.fcJt- fupport «n ^- 
thc plaintiff, it was moved; that this- is wt^ytC^nligcnrion, fof/**^' 
it is not any benefit to the defendant, becaufe he is not thereby poft^gfg.^igg, 
difchargcd of his debt; and it is not alledged that he paid it to .*- *i\'> 
RtO^ers ; nork the pronaifc allcdged to be ipa^9^o Ragefj, AJld i^T V^^ Ab. 19, 
it had been niadeia.^^crj^ he could not thereupon havcxnainfairn- y^'JTJ" ,; 
cd a^ aftion agalnift the plaintiff'; for there was notany.xfonfi^Cr i. fdoA.^6a. r^ 
ptioH Wwe« t^io.v-.^n^'of that opinion were GjfL^j>j zofi t.vmu4^. ./ 
Fennje;k iiporitfic firfl motion; for ^awj>y faid, Iff oiic be "*J^**^ •'' 
indebted unto me^ and\aJio]thetf^com^ me, ai^ Er^*^?y tiii^ Mt^^ 

thaf he will pay.it, this is voiij^ ancl nothing^ to purpolc, fivi^ 6^ i^;|. ' * 
if heorpmifc, iiaxbnf\dei:ation thai t will ft»:tiear naydebtr that *- : 

he yfill pav^it At fwh a(iay, jf the debtor dob not pay it, .thf? i^ • ^ -^ 

go6d. wherefore, &c, (<?).— But it 3Ka« TO5^v€j^^again aitaaoth 



.:-t 



- tut 



t 



day, and PoynAM and Cj-Ench held it to "be well enough | tpr. 

there is a mutifai prolnife, the oxie to Jthp^ qtliec j fq.^th^j^ ^hc* ., 

plaintiff doth not pay it to Rogers ^' the defpndaht may have his 

aftion againft him : and/fo alijpf tiii,-.de^ndant Ihall be cliargcd . . .,^ 

as to hiin ; and apromifc againft a promife, is a. good coniidpration, 

— 8ut it MF|$ tfioWd,* tRat the defc&r^on* ri fiot that tire mfht^ 3.-. \\ ,*. 

proioifedto any,^t6^W'idefcndant and'therffpre ft ^ yl'i 

IS n6tgcioA.'^Bui hfiat'wds hot v^ell apprehMed V tf^eVourty Vrtf \ ' ^ '•^' 

fimefL B«t judjrittenf- Was given for the, plajntifr> ■. ' " • ^ 

^ Sdrogs^tf/^ Sir JohwSponcer, ^eAtis^^' 

t*RRDll of a judgment in debt in the co^li^>ml jgj^s^. \Tb9 A.««t^bytQ0> 
■^ Wor aiEgned^jij^fi?, JFot tb^a^ .ijy[?qn ^k^bcas cor^oi^^j4{'qiQrum iww» jo^Ow^ 
di;eftcd'to'^t1t^:>ox<M;i^ thejr.rctprnc^ ttic jvrft, ,^n4 pi495ted the P"?n "•»*». i 
''^.^'^'^'^ wed qot.thQir.jauip;or^;*^«Jft^^^ 

omce,.(wiBvX^r^«fl/<|ri^)^;ut tiiC:yiw^ wajs rcturiw.by them, erroneous. 

^nd.Jheii: 'naipc$.,)Sv4:t|p.W»t,^/*iin4'^v^^^^ jJ^e Ante, jio. 

m(((i iiorpora, the-nimcs ^ij. :?. were, written, ^ut,n^t ^le, lump Moor,5<«.<6ft 
of coroners. And attef thp vcr4i^rand judgmaU for the plain? ii^iK ,3^. 
t^,. error was brought; and it was t^e fole error aflSgned, — rVrfv. no. 
V^i-viETON, ferjeant. moved, that it was not any errpr for ^™- J*«- ^^\ 

Aaa4 ^ fecforcV»«^-Ab..7^ 



t 

'7^ ^^jchaclmas Term, 41. and 42. Eliz^ In B. R. 

.',.*'. i •\ * » . '. . ' .^ ' ■ . * 

vScnaQs before the ftatutc of Tor ky cap. 3. which. was made 12. Edw, 2. 
H**^!^ <the Ih^ififr heidW )i6t t6 have t^ut hia p^pcf name, nor of his 
'*"*"• -ofBce,- to hi*^ fcturn y and this ftatute extends only to th^ (hcrifFs 
•imiJ'^haiHffs'' of frdrichlfes ; Tt> the coroners to this day arc out of 
tlic' ftatttteV ' A^d at the common law it is well enough, for it 
was not ufiJar to put |^e fherifPs name to returns : and in proof 
thereof diYcrs precedents wfere Ihewn;^by AcAKjdqputy chamber- 
Jain ;6f the exchequer { mariy 'of which were writs of affife ; the 
one wa;s in 5. Ediu^\ 2. aflife againft the abbot of j^^/»^f(?n, and one 
•^. 5: 4iis'V^mw{?/^^) i'anri* in none of' the 'writs the IherifF's 
proper name or office, wag rct\jrncd.-^ And .upoii thefe precedents 
H. 75«* fhewn, the Court concQi\T4 it to be well enough, and no error ; 

.'- ■^- ) for when a writ is retwncd, it is irttended to be by the very officer 
of the court wh<f ought to4o it ; which is the reaibh that at the 
- • confmpn;|aw the lheriff',s;namc needed not.to be put to any return ; 
^nd, this reafon holds here. But they all hcl<j, that if their names 
.ft^Sl^t;to have' been here, then it is not ^dcd.by thc_ 32. Hen. 9. 
gi»39^ nor 18. £iiz,Q. 14,, ^Aiidt^iey hel^, tha^ tjie 12, Edw. 2. 

;;. 5ot5^.^i4 P9? extend to rcoroneir$,(fi). But tliqy would advifc. 

'' .;/ ,:: 'il^ijBw WW, ^f^h}zc» *, c jj* the wtnfof the name.! raided. 

Devi" of a*' t^r^TIONt tmVl^y'ipt certain Uni%\n Jftdn-Clintonin 
houfe.>>fith.ih« '*-'• theciiihty 6f 'Bkdh, ^'Upon evidence to a jtrry, 'a devife lyas 
appurtenances^ IhfeWh bf 'is^h honjc with tlte' appurtcnaftces ; and thereby land in 
^*^^1?'"^"*"*^ field Was claimeif.— FornAM doubtcdf Whether it {hould 
IcwrtroMba pf^ •' ' B^^ FENJ^£t;fftrrf th^t^ ifwell mJgKt pafi ; and that upon 
•opykoU) and " dcfrtttrrcr iti'28/!f//«.'.?t w^aS'adruc^ged accoi'dhigly; The Defen- 
the otherfrep^ fe'ANT then, to hia^e;ii;'clcat,'mewed that'-the froufe was copyliold, 
^<^'<*- ^n4 tftt land frcehoMl ^-ffiid twi who LE<?QtniT thereupon con- 




;. I'loyv. inc. v-ro. var. 17. j&^. ©, uo. 39. 3. uom 
iicoV^'^.rccWc Wnij: 603.' i.'.TettA Rip4^1 501. 

CAii»«/ ^'''"' ' • :' '"^ '• -f-'^C^otfcli's'CafeJy'^ • ^''i' . -^ * • 

Hj«rr#, If the r*RP.UCH»: coijyholdcrof; ;i^herjt^ncf,pf t{>^^Hhop..oflW«f<% 
copyholders of j , , fti*^ a.pTohibitioa,for iJ^ynig pf ;a fpi^.fy^p)|tithe^ ; furnaifing, 
fpiritua] perfons thj^t hc^.^afid all the copyholders, of fuch araanor of the biih^*s» 
may |wef«ribe J*roiii' time whercof, .ficp, h^d .hfl^i their J^n^ ^ifdlj^rg^ of uthes, 
-^wthrcon- ~^^^^ ^aXthi3,prcf<;ripti(^^,was"too general; and 

tinaation of thi» it could not be good to prcfcribe in non decmandu by the tenants. 
••^<5|P<jA-.7f4- Godfrey, It':i.s a$ gtodi as fi>r the fwpioFiiof a biOioj) to-prc- 
fgribe to be difcharged ; and. tb^t was ruled ii\ a cafe, in tki4 ,WOXU 




tithes 

iftJe^aYi^ 'to allow it to ^M hls*eopyhoftie^,~pLE\f c h and f^i'iii H 
See Stercnfon' igVeW^Hth *im, ' ^ Whefeforcj- Without peniiittinj^* any dfeclafation 
yt, Hilt 7v. br'd^mnt?er.thercuponi^tKey awaited a ^c'on^^^ unlcfs bthei 

3. Burr.i>7^ caiifdBe flipwnby fncll4'aty:'--(G'A'WDy a^/ente.) * - ^ • ^ '^'^. * ; 



Michaelmas Term, 41 . rmi 42. EUz. In B. R; ^05 

Dobfon^^w^ Crew, CAtxafc 

T\EBT kttpoit 2n dbli^tion, conditioned, that the obh'gor fhould Acon<litlon»noe 
^^ be alway9,Tca4y to give eridenccf, and to juftify the truth in to molcft an- 
any of the que«i*s courts, in all things which fhould be demanded J****"*" Ws 
of him on the part of the obl^oe, upon reafonabte requell, and q^^h^^^^ 
his chaig«s borne f and that heihofiild not hurt, or endanger, or maU*b/^bc. * 
molcft the oblig)a:;in his lands or goods, ratione alkujus ret cujup rally conftrueii 
cunquf.. lAnd'fierctipDn the <ltfendant denrarrcd, fuppofing the *o»"tcnda/©r^ 
condition^tD hare-been' againft law.-^But all the Cou^t held ^' «oJeft»tioa 
it td be gdod,tand not ^ainft law; for, as to the firil j^art, if he ,, Jy^ ^^ ' 
haA not becai. obliged thereto, he is cotnpellablc by the law- and i.Bac. Ab.409, 
the laft part fhali be intended, that he fliall not hurt, &c. tor- Perk. 778. 
tionfly^ but noltto reftrain him from parfumg the obligee for ^^^'^^^ 
felony, or Upon any other juft caufe. Wherefore, without argu- ^" *^**«P*^7»* 

mtatf it was adjudged for the plaintiff. 

I .f ' ' ., . 

• v., ;c! Peacock againft Peacock. Caih j/i 

T^RESPASSi of aflautt ahd battery in London. The defendant If a juftificatlon 
-■• pleadedytktt the plaintiff entered, into his houfe in fValthamy maflQiuitand 
in the county of £^jr, and he mMter manus impofuk upon him ^hr^^^^ft'* 
to puc;him;ourof his houfe, qua efl' eadtm afTault, battery, and lrav^rrc\i?other 
mal-tra6tatro]|^ whereof the plainpff 'complains ; and traverfes places than that 
ABsQjTE 'HoCythathe is culfabUis extra fValtham 5 and it was there- where thcof- 

UpondenUinrcd.i ' fence is charged 

. % , ,•:.-. to have been 

' ' done 

w TowffE,/«r 'ibe\pIainuff,mov(ii<^ that this was not any plea ; for Ante, 667. 

this trefpafs being tranfitoryv^thft^lace is not traverfable; and ad- Poft. 842. 
uritting tfa^ place ^t^ be tralvorfcible,' yet he ought not to conclude 

But AiLMTH^'iGoiiRT held the ciMVtrary ; fbf th6 caiife of the cro: jac-V^ 
JQiliiicatidn beiiqf iDcal, v'm. the mnintaining of the poiteflion of 3, tev. 213. 
his houlc^. he^may well juflify there j and he cannot juftify in 5. Cbm.Di^ 
tadther piaari and lie day traverfe every otlier place; as where "®* ''7- 
one jofi9tesrasnEDnitabk;,or bjf force of a warrant. And therefore \]^^^^]Vj^ 
PopifABi'^ndirthindifferencejie bet#ilt this cafe andtliec^ V^ ' * ^•^79» 
^MttidgeimSiviiit^diA adjudged in-thiis 'ei^uftv that wherd one jufti- 
lies Uy r«|tfiBhaQf ap^aflaiilt in ahdthtilf county, and traverfeth the 
CAtinQr iafthadoclaration, that 'istn^ good) becaufe the juftifica- 
ti5)nis/perfonal'and.tr^ii^tcry^4in4}anf%ht be alledged in any- 
place, as well as the battery. But where it is local, as here, it ' 
|s .plhomife^' and the conclufion, ^^V^ eft eadem tranfgrejjioy bfc. 
^:^<A eiMiigh ; for/ it ^oiKludesv ^tjiat it is the fame caufe of 
9^H>n, fautfmtl> a trtivcrfoy ras it ioughr to be of lieceflrty : but if 
the averment, qU^.^ iadev^ t^anfgriffi^ had been omitted, it had 
kffigoodfmmglau.' Wbexefb^e, ufOB the flrft ^rgi^ment, it wta 
i^4j»4g«4 for-thi?.dc£Bndtot, - - 



<■ ■-' 


'i'.-'Jflj ,I.3V/.. J 




1 1 


(;*.i vma.L- 


•1 

i 






Hilary Tirm^ 4 i T ^if/'iV Xci 1 1 4. 

iihcrifffor^n ^^ ford. 'Ao^ 4p<?larc9, tba^hrrccovcrcsd in-thr common plea5, 
cfcapeupon a j^ J^^^jj,^ y^^^^^ ^g^ (^ ^9, £<t3i.»gain&'0in? £/jl fVnhftn, 308I. and 
^''oVfn^^ui- ^P^"^ the ath.pi{?(^i^r, 38, .ir7/». pAiSrfufid upoalhisju^mcm a 
liwry «/i*r ^flpwj ^d^fatis faciendum, whcrfti^ntherwas totttUMFod': rafter which j 
jndgmnt, the^ wz. A^^d ^<rw, 39. jEfo. fValwut hxQ\x^t a -wjdt rf tfiTOc* ahd tha 
it be after ihe .' record wa$ rejnovcd into ilri5.c(wirt»»aad* thett:hizdffvgntA not fiiiy 
ISM?c r^Jd ^"^^s- Wberpupon 13th ii*r«4rjr; ^.:M%itthotjAahAxie fucd a 
be removcd^n- capias utlogatumj uMc com/ifitis efii dircflfced to»tlteim^iff tif /f/^^- 
to apothcr /<?''^> whjch was delivcrcd lo the: defendant,.' bciog M»iiflF/ihc id of 
court i but if March followirig ; . by fbree*whctcof,- upon the ^gn&cAiMdtch fioU 
the outlawry , lowing, bc took ^^/fwf , and liftdhinl in his cufcadjr^fjahd kficf- 
r/^.Aa7^^-« ^^'^^^ ^^^ ^^ aJ.l»Kc, the plaintiff riot being Atirficdi &c, .The 
afiion on the defendant pleading «d« debeU iA, tljis matter wa^.foHod byifpccial 
cafe. verdift : and, Whether, upon this matter, Walwin was in exccu- 

Ante, T65.416. tion for the plaintiff, when he was tak^n by the cafias utlagatumf 
vlk^tl Vio ^^^ ^"^ folequeftion^ After argu^ient^at^thbl bar, by Thomas 

5d. 9>0:yj^j^ ^^ pUinitff^ and by Atkinson /or the defendant^ 

I. Ron. Abr. The whole Qovk.T; ^efcdyoJ,. thfc.faid.'^tt/tt5»bciri^:taRco*b^ 

iio. S95. the cafw utla^at^m^ altb^ffgOvinyirnsiaftflf tl^riiyOi^ta^^daY, artd 

Moor, 566. ^though the record ;^ .rcmoVib^' lulb ranotlict ictor^.he (hall be 

c^ CoAUa. ^^^^ ^o^c wi[ executioiir foi^ the plaiiiliff'ijior.JlIitoejifiL aDtJ^ny flc^i 

tut. ill' ' . fault in tlie plaintiff ; ior.hj.'purfued hiih^ ontifr tlicopcate;& was 

2. Buid. 231. determined, vlk^ until he Wfis «u%wed i.^idt.hftibG^dd^ft^iot diave 

^ridg. 67. had othcr^procefs than a capias uila^atum ; and tlito hadJbocn lus 

X. RoU.^cp.^ remedy, it the record had remained m court ; and tlie removal of 

Cro. Uc 364. ^^ record, It being. no. default <of thcplSutiffi ^fhallupt^sr^pdl^ 

5. ModTaoo. . him, nor alter his execution* i i Af^tlw commoj^'iCBdirTc ;hcie is, 

Fitt, 265. if the party be. \2ktn .^pon:a c0ikhMiiavntxinii2i'oA^\\T^^ irito 

Strafjsc ^i. court", to Commit him to* the 'Marjhalfeaim Jth4»oiit^wj^ ^ alfq 

Saik 'Aii.'4g^»* "^ execution for the party. But if he had not been outlawed at 

J. n^. At}!". \ the fuit of the^ p^st^ in t}^ a»Ri0fH)r0k&s^» ahbfiigbitfce f«:Ord be 

7«c. ' - ' lenvoyc^ J4.^>^*Vithm tfeWilifetnt lat^^^^ mi^tihaTtt 

4-^^^Mi2» jj^d i^ tjjjp fx^awpn.ple^ ji ^pias ad fattsfa'ciadwo^yi boingiicrc, 

iSo/^i. * ^ ^^ cannoit luvi?a p^w, byrtpnly z^Jcirefatati. rAr FwabfEKu; But 

a.i:d\iy. ?dy be ;igrccd| the pwcefs. bieip'g)dciernijoed^ in the oonimtsakiplcias by 

n'dH>ih;i>ric;* l;be outlaiyry, he-.ftatl'iiot hwel baYcany jathch pixsefe Uaft a 

a7«- ra/n/tf; uiktgafum^ ^n4 tbet»pai(t]fitlakii«iltivsreupoou#iaai:fbmWkh b4 

i^PeffcWmi. in^icxccotioQiv and Jthe .£Koritfi'at.his.^il»*bQg^^dBa^ 

^' exccutiofi > fol? the ^tvy»t giv«$^ ifufikiint inotioeliRka^:!!! AJ tlitt he 

Ihouid fbf Jii^ fkXec^Oioii, byi t|ie:;wpnb iaubScckviffUs efi^ \Wjcre- 

fore, ^c- , ',. >. • . *. .IV. ^•♦.l ./•'« ••'» 'v^T - • / t 

But AxKiNsoNi/^ <^ 4ef^4a»i't fhcw^d^ .Uiat tliii' eonlft not 
be an ^xecutipn^/or thc^.paKtyC becaufetbe leoo^ j& removed into 
afiothjcr c9Ufts.i(x\d it. is a i3miitiiBtairqconlbi0ingfenrii^ed,«thero 
newer ftall be f^^c^u^ion ^ppiKit^btil ^iidgn\ent,V'^ut by tjiire facias \ 
for.th^ 'Qourt C9|iMt lut.tW'jwbejd\cdit.£Ki^dioci^.:be>>rkde and 
this appears by 6. Edw.d. Jt)jrr, 76.t4sfJBxi *iw»--4!^ r+r lA^ 
Hen. 7. pi. I <• £^ 10. The party alfo being outlawed, thevproccfe 
is determined againu him by the party ; fo as ^e party is put to 
his new aAion of debt, as 13. Hen^ 4. //• i, 

Kbm9 



Michadiinas Teraij 41 • aiKi 42. Eliz. Ifi B. R/ Toy 

Kemp, the cUrk^ faid, that is true, where th6 party is outlawed Irf iMT«i 
upon ail original, and raefnc procefs before judgment ; if he be afr "^'''nP 
terwards taken by a c/iplas utlagatum^ the party cannot declare V***"*"** 
againft him, but he ought to .have a new a&ion of debt : but 
where it is an outlawry aft^r judgment, it is always ufed, that 
tlic party, being t^ken upon a cifpias utlagatumy is in execution for 
the party. And the? courfc of the Court is, if one be outlawed kU 
ter judgment in debt, if he brings prror, and doth not ailign his 
errors, to award a capias utlagatum^ which is execution for thd 
party {a) ; but if he be not outlawed, to award a fcire facias quare («) 5,Co.S8,a, 
sxecutiofum habere mn debet. ' And if he, being outlawed, brings Moor, 56c. 
error, and cgmes tp aiSgp errors, c$mmittitur ; and theft to find ^^' ^^ 
bail, body for body (i), for tlie outlawry, and to fatisfythc party ^'^'^ 
for the.execution : fo no other execution ihalleverbe againft hira, (^) Sqrf^ 
And he faid, if he brings error whcje he is Qot outlawed, and the ^ fj 5- ^^^ 
ju4gmcnt is aflfirroed, the couffe is hi?r<j t«i award a capias upon *^*»ytc.»at. 
tliis judgment, or 2i fieri facms^ or an fhgip% as the party will, and 
not to award a foire facia s.^-^AxiA for this caufe . aLl the Jus- 
tices held here, that this is a good cxecutiQn tor the party^ 

WiNGATS, clerkj faid, that he was acquainted with two cafes 
which were adjudged, thai if a fheriiF takes one by a capias ut'- 
lagatum after judgment, and fuffers him to efcapc, although be 
returns not the writ, yet be was charged in debt upon the efcape.; 
and the one was 17. Eli%. Aufireys Cafcj who was (lieriffof Bed-* 
ford. — And it was faid by riie Court, that if a ca^ii^s b^ crrone* 
ouily awarded, yet the (henfffball not avoid it for tnis caufe ; and 
fo it was faid to be ruled in 30. Eli%. in Sir Clement Paftens Cafe>^ 
in the coramori pleas. Vide 3, Edw. 6. Dyer^ 67. irf Tear B^eik - 
14. Edw. 3. ** Ejcheaty^ 6, Whwefore they refolved, utfuprayfaf{ 
the piainttj^. — Tlic matter was referred to compromife; and this ^ 

rule given, that if it were not finUhed before the next Terni, that 
judgment fhould be tunc pro nunc. 

Mallet Jfi2/«^ Mallet, Cawij. 

rRROR of a judgment in the common pleas in replez'tn. The whertafe^is 
^-^ defendant avows for rent, for that Hugh A4allet was tenant in leTiedMac 
tail, and let that land for three lives, rendering rent ; and tliat nMoor,notb4nf 
this revcrfion defeended unto him, as heir in tail ; wherefore he ^1^^!^^ wj^nJ 
avows and avers, tliat at the time of the demife, et diu antca^ this and not a ih^ 
land was demifed, &c. and that this rent referved is verus et by repuutioQ 
antiquus reddifuSy dfc. The plaintiff replies, quid bene et vcj um efi^ only. 
fhMt'ffugk Maliet was tenant in tail, and made the leafe prout, bfc. -^"^ 5>4- 
ancj tljat by force thereof he was feifed of the rcvetfion in tail; Cnjifconfini% 
but he bleared a fine of thofe lands, by the naitie of the manor xjf 124. 
Ncrth^pej/'erton. The ifllie was, " nicnt ccmprife ;" ancl there-, 
upon a fpecial rerdift was found, that this was land lately pur-. 
chafed, which with other land was given in tail, and refcri-ed fuit 
to the court p( N^fh-Peverton-, and that this was »known by the 
name of tlic manoi* oi North- Pevcrtoiiy and afterwards a fine was 
levied thereof by the name of a manor : and. Whether thefc lands 
paffcd, or not, by the fine ? was the queftion. And it was ad- 
judged in tlie <;ommon pleas for the avowant, that it was not a 
• * manor. 



55b8 Michaelmas Term, 41 /and 42. EHz. In B. R. 

Mitt it*' Jnanor, and that thofc hn6i were not cotnprifcd within the fine: 

agawft , for it was there held, that by a fin j levied of a manor, nothing but 

BiAttkT; a manor in truth fliall pafs, and not a manor in reputation ; and 

this not being a manor in ttuth, nothing pafled thereby. And 

^Co. $4»b. i^YOv being brought thereof, the matter m law was moved for 

error.— But the Court here clearly held, that this making of 

the leafes cannot gain it a name to be a manor, much lefs mal) 

make it to be fo : and therefore the land cannot be comprifed 

within the fine. ' 

An avowry for ' Secondi»v, It was affigncd for error, For that it is alledged, 
rent under a that the land in tail was let for three lives ; and if it were not ac- 
*tcnMit^ta?^ * cording to the llatutc> it is ^ difcontinuante; fo as the revcrfion 
for tlir^ fives, defcended to the heir at the common law, and not to the iflue in 
rtiuft aver, in tail : for the averment, that it was demifed formerly, is not fuf- 
pirrfirance of ficient ; but it ought to have been averred, that it had been fo de- 
***^ ^*'"o*^ o mifed* for eleven years at the leaft, next before the making of this 
that iht land* l«ifc- The avcrnhg alfo that this rent was verus et antiquus red- 
bad bten de- ditus^ is not fufficient ; for it may be the ancient rent, which was 
mifcd, and that twenty or an hundred years lince : but it oueht to have becii 
it wa»ihean- avwred, that it Was the ancient rent which had oeen refcrved for 
wWchhad been *^ greater part of twenty years next before . the leafe. — And of 
refcrved /or tb» that opinion were all the Justices, that thcfe averments were 
inattr fart »/ iilfufiicient for thefc reafons ; f6r thefe averments might be true, and 
tiorntyytan yet thc circumftanccs of the ftitute be not obferved \ and that this 
*"i t 7 'a* ^^ ^^^ S^^^ caufe to have demurred upon the avowry. — But on 
*«/iMor other- ^hc Other fide it was rnpvcd, that the bai- to the avowry is a'con- 
wifclt is not feffion that this leafe was made for three lives, and that the rc- 
warramtd by verfion thereof was intailed, and defcended in tail ; and it fhall help 
the ftatute ; thtk imperfeftions : for it fhall be then intended to be a leafe ac- 
thcd!^a^aS»- <^o''<hng to the -ftatute, and that all circumftances were obfen'ed; 
not be cured by othcrwifc the reverfion could not be in tail. — And of that opinion 
any tcm/ejioit in was Gawdy, and relied upon Dycr^ 352. and therefore faid, that 
the pteadings if partition be pleaded between joint-tenants> and it is not pleaded 
» the other ^^ ^ j^y j^^^j . qj. if ^ Icafe be pleaded by Saron and/«K^, and ac- 
Ante. 438# ceptanccof the rent by the feme, and ,no deed pleaded, which is 
Poft.874,* not good ; if the plaintiff, in the replication, confefs them, and 
pleads other matter in avoidance of them, this makes thc bar t« 
Co. Lit. 44. b. jjg gQQj . f-Qj. ^ flj^ji ^ intended to b? 9, Uwfpl partition and 
5;^^^-/^7;^*^- leafe. 

3:[Bac!Ab.356, PoPHAM agreed to thofe cafes, but he conceived otherwife in 

Pougl. 570. the principal cafe ; for tlie leafe here pleaded appears not to be 

573* , warranted oy the ftatute, and then the confcffion of the party fhall 

not help it. As where he pleads a feoffment to thc ule of^him- 

^ - -^ fcif, and his heirs, by force whereof he was feifed in tail ; although 

the other will confefs that he is feifed in tail, it is a void con- 

feffion ; and thc acknowledgment of the party fliall never help a 

matter which aj^pears in law to be contrary to liis confcffion,'-r 

And of that opinion wai Fsnnkr.— ^^r (idJQurmtw^ 



Sir Andrevr 



4 

McK^bnas Teroi^ 41. tod 42. EUz. In B. R« 709 

Sir Andrew Nowel againft Smith. CAti 30. 

'pRESPASS. The defendant pleaded in exchange betfirixt him Totrefpafsj tl* 
"■■ and the plaintiff, of certain lands which were adjoining ; and <'cfcndant imy 
that upon tlie exchange, cpncor datum fuit between the plaintiff and ''J^nJ^*^'** 
defendant, that the plaintiff (hould make the fences betwixt them, bound ^^r»- 
and ihotild always maintain it ; and that tlie fence of Long-Gafs-firiftimton* 
c/ofcy which was affigncd unto the. defendant, againft tlie plain- pair the fenoeti 
tifi^s clofc, called Thirty- Lea fe Clofe, was in decay, wherebv his f^"^^^^^, 
beafts cfcaped through the faid plaintiff's clofe, &c. And tbere^ that^^j^#-' 
upon the pjaintiff demurred. mnt he oujht 

Gawdy, Clench, and Fenner, held, that the plea was ill to repair; 'for 
for the matter thereof; for his agreement cannot be a bar in this *** i^y fc«^« 
adion ; but the defendant is put to his aftion upon the cafe, upon [h^cownanu 
the promife, if he performs it not. And if the agreement had 
been by deed, it l>ad not been a bar ; but he only fhould have been ,j. }ltn.%,^A. 
put to his a^ion of covenant. 2. RolL Abr. 

Pop HAM e contra: fox by this agreement, he is bound in right 5^5* 
to make tlie fence, as much as hy prefcription ; for every prefcrip- ^%'^'^^' 
tion to make a fence is intendca to begin by grant, or c^nfent of J^j^y^, ',^J 
thofe who ought to do it ; and if, upon partition between co-part- salic. 357. 
ncrs, it be agreed betwixt them that the one fliall make the fence, Cowp. 471* 
it is good.— -But the other three Justices againft him for this 
caufe, as alfo for a^efault in pleading ; for that the fenfure is fup* 
pofed to ht in decay in a clo(e of tlie defendant's, which was not 
the agreement that he (hould make up. And this was held to be 
ill by THE WHOLE Court : and it was adjudged for tlie plaintiff. 

Sir Rich. Lewfon againji Riddlefton. • ^ Ca«« 31. 

L'RROR of a judgment in the common pleas, in trefpafs bf Wntofiii- 
*-* battery. qui'y- 

The First Error affigned was. That the writ of inquiry df ^^^ ^/* 
damages, dircfted to the fheriff of London^ was Inquiraty when i^^. vcnt,Mi. 
fliouid have been inauirant^ there being two fheriffs. — But it was; 3.' Mod.'.iia,* 
ordered to be amended. Andr. 177. 

Secondly, Becaufe the entry was, quid Inquirant per facramen- '• C«m. Pi^ 
turn proborum et Ugalium hominum de^ civttate pradtBa ; and there 33^ 
is not any cit/ mentioned before, — Scdnon allocatur: for it was 
certified by the prothonotaries of the common pleas, that their 
courfe was to make their entries, that it (hould be inquired, &c- 
de comitatu tuOf fometimes dc ballivd tuoy fometimes de civhate,-^ 
And Kemp faid, the common courfe is to award, to be inquired 
de balUva tud, — The Court thereupon held it to be well enough, 
and the judgment was affirmed. 

Spencer againft Shory. ^^" ^«* 

ACTION for thefe words : '"^ Thou art a permred knave, for ff '^^^ 
" thou fwcareft tliis day at the leet, that I bake bread in' my «ndanicrcor- 
** houfe, where I did not.*' After verdift for the plaintiff, upon pomipaniih. 
^ot guilty pleaded, it was moved, that an aftion lay not for thefe '"«»'» ^ »&km^ 
Words ; for perjury cannot be in a leet, whereof the law takes any p^** ^^^ 
«W)iicc.— But Ai.1- THE Court held, tliat the words were aQion- ,°c<wJwf« 

abld;«;«. 



tw Michaeltnas Term, 41. ind 4^. £liz. InH. K. 

Sfkwcui abk ; for althou|h it be not a perjury punifliable by the fl:atut# 
againfl ^f ^^ f/^jg. ygt it IS z difcFcdit, for which an aftion lies. Where-* 
Short. ^^^ j^ ^^ adjudged for the plaintiff". 

^*"3> Leverfage tfjftfwy? Smith. 

Words which A CTION for thefe words : " Jdhn Lever fage {innuertdo the plain- 
imports m- -^X li i-iffj jffOMli have robbed the houfe of J. S. if J. D* would 
Scaa'im^ed " *^?^^ confented unto it: he perfuaded 7. 2>. unto it, and told 
•re aaioiuble/ ** ^^^ ^c woiild bring him where he fhould have money enough.*' 
Foft. 747. * After verdift for the plaintiff, it was moved, that thefe words were 
4.Co,i6. ^^^ aftionable; for there is not iny aft done by the plaintiff 
«! Roll. Ab. 51. whereby he can be called in queftion, nor is it fuch a (lander 
Ld. Ray. 1185* whcrcby he can have any prejudice. — But all the Court held 
them to be words of great difcredit and flander, and concern him 
much in his credit, and that the aftion well lay. And it was ad-* 
judged for the plaintiffi 

Caii %^ Smith againjl Shepherd* 

Tott-traverfc, T^RESPASS for the taking of one hundred iheep at Melton-^ 
teU-UiorpttgK, Mowffrajy in regii via ibidem. The defendant to all, except 

Karn.toli, and One, pleaded not guilty ; and ^luoad that he pleaded, that Lord 
toUfof miir- Berkley was feifcd of the manor of MeUon-Mitwhraj^ in Mehon*^ 
^ miy^Ul M^ray aforefaid; and that he, and all thofc, &c. had ufed from 
Sd^nLVbe dS ^*"^^ whereof, &c. to have toll, vi%. two-pcnce for every twenty 
trained for in flieepof any ftrancers brought ordrivcn^^r et trans the faid vill by 
vid refii'y but any ftranger ; and if he were denied by any fuch ftranger driving 
ajuitiiication t\xtm per et trans the faid vill, then tliey had ufed time whereof 
Xfdiftlift '"1 *^^- ^ dift^»" for *« faid toll one fhccp fo driven ; »nd allcdgcdi 
mniSfir^i^s^ in faft, that two hundred and twenty flieep of the plaintiff*Sf being 
is bad. a ftranger, and not inhabiting there, were driven, by one Ludfidd 

Ante, 559. per et trans the faid vill, by the plaintiff's command j and bccaufe 
s.Ro.Rep.5ftx. he refufed to pay this toll, he that one Ihcep ccpit et abduxit^ and 
*' Mod^*' '^'" d^^ai^cd ^ntil the toll was paid. . Et hoc^ isfc. It was hcrcupori 
104. t7u^' ^'' demuiTcd in law, and it was moved^ 

I. Sid. 454. First, That this plea was not good for the matter; for thif 

jooes, 16a. toll is claimed as a toll-through^ which cannot be claimed by any 
*' M?i* **^' prcfcription ; for it is ag^inft law, and in opprcffion to the people ; 
t u^'a^r ^"d ^° *^^ purpofe was cited 22. Jffife, 58. 
I. ven.^' Secondly, Although he might prefcribe to have this toll, yet 
». Lev. 96. he cannot prefcribe to diftrain for it in via regid ; for that is againft 
XcL 152. the ftatute of Marlbridge {a) ; and in proof thereof vouched, 
''^mJ^* 17. Edw. v^.pL 1. 43. Edw. 3. pi. 40. II. Rich, 2. " Avowj,'' 87. 
t'wUf'aoeV '7* -^^"^- 3-/'* 43- that where a lord diftrained in an highway; 
Bunb. 68. ' the tenant might have trefpafs, or might make refcous : and agsinft 
1. Burr. 583. a ftatute one cannot prefcribe, as 9. Hen, 6. pU 56. and Dyer^ ajj. 
J. Burr. 1404. y 273. — ^But this exception was riot allowed ; for it was holdcir, 
i-^TcA^ Rrp, *^^ ^"" ftatute did not intend but for diftreifes for r6nts or fcr- 
£ R. 66j. vices ; and not for thofe tilings whereof no diftftfs can be but in 
. ' the highway. 

Thirdly, It was moved, that this pica was not good for 
the manner of the pleading. Firjl, Becaafe the cuftotn is 
alledged to be, that if the Iheep of anjr foreigner be driven 
through, a toll Ihall be paid; and if it be denied by any 
foreigner, who drives them throi^i, that a diftrefs may be taken: 

(«) %%% Um, 3. 6. 15. See $. Bac. Abr. \iu 

am 



Mldiaclmas Term, -41. and 4i. feiiz. In B- R. t*» 

ftnd it is not averred, tliat he who. drove them through was a Smith 
foreigner, but only that tlic mafter was a foreigner. — Sed non alio-- «^«"^ 
catur. For the driving of tlie fcrvant is the driving of the mafter ; 5»«»ii»ftp« 
and if .he be a foreigner, that fufficcth.- — Secondly^ Becaufe he 
juftifics, ^* quod cepit ct abduxlt^^* and doth not lay by diftrefs, 
*• ihmine diJiriGiottis^^* for othcrwife he cannot juftity. — And thii 
was held by the whole Court to be a material Exception ; 
for otherwiie It meets not with the prefcription. 

For the matter, it was moved; for the defendant, that toll- 
tbrnuih may be well taken by prefcription ; for it is one of the tolls 
which the law allows ; and as a tO'Li^-traverfe is where toll is 
claimed for going over the proper foil of anotlKr man, fa 
though^tQll is for paffage through a vill ; and both are by pfe:* 
fcription^ And norwitliftanding the opinion of Thorpe, in 
az.Jffl it hath been always allowed to be good, >is appears 
50. £dw, 3. and 20. Edw. 3. " To//," 2. trf 3. 5. Hm. f. pL 10, 
and Brc. " ^0 ffarranto^** 3. it is held, that turn-toll is allows 
able; and 21. Herts 7. pi, 16. loll was taken by thofe of Ghucejhr 
for paffage by the river, and this was. by prefcription, #id allow- 
ed, and that a diftrefs might be taken for it. Wherefore, &c.— 
PoPHAM. One may have lohis^travirfe by prefcription, and fo ht 
may-have roLL-through; but it ought to be for fomc reafonabte 
caufe, which muft be fhewn, viz. that he is to maintain a caufe- , 

way, or to repair a way, or a bridge, or fuch like. And the 
queen at this day may grant fuch toll, being but a petite thing, iii 
refped it fliall be a greater benefit or eafe to tlie people, for the • 
repairing of a dangerous, way, or the like. . So a prefcription iq 
have a toll for murage is good ^ becaufe it is to repair the walls 
of a vill, whereto the people may fly in time of war. But here; 
for that there was not any caufe allcdgeJ, fo as it might appear to 
the CoDrt to have a lawful conuncnccment, he conceived the 
plea to be ill. % 

Gaw^ty and Clskch held the pica to be well enough notwith* SecAeftmea* 
{landing i for being by prefcription, the caufe thereof cannot by '" Moor, 57+.; 
intendment be known wny it began ; but in refpeft it might have ^-^"^^ **""^ 
a lawful beginning, it is well enough without fhcvving it. But p^^'^^^'^ 
Gawdy doubted, upon the reafon of the cafe, 22. ^Jf. 58. MSS, 
whether fuch a toll may be claimed by prefcription. — Fennfr 
delivered n6t anv opinion herein. But for the default in the 
pleading It was adjudged for the plaintiff. 

Body againft Hargrave. -CAti 35. 

Eafter Term, 41. Efiz, Roll ^2^. 

DEBT againft the defendant, aditiinifla-attix of Tbom^j Hargrove In d«bt for rent, 
her hulband, upon a Icafe to the faid Thomas Hargrove hy^P^^^^^-^^l^ 
indenture for years, and. how the defendant is adminiftratrix unto l^^l^^^ 
him. And for rent arrear after his death the aftion was brotight g^'^ithoitA 
in^he deiet et dethtet. Upon not guilty pleaded^ it was found for^r»/*rf. 
the plaintiff; and now moved in arreft' of judgment, that the dc- ,.Roii.Ab,Coi* 
clsiralion was not good ; ^or that he declared upon an indenture, Moor/5661 
and doth not fay, hie in curia prolatn : for'.altliough he might 6. Co. 58. . 
bave declared' without mentioning any deed,*;yet when he men- "."""if' 
tions it; -tod grounds his aftion thereon, he ought to fhew it. oo^gi V,^' '^^^ 
«-^,dt Gaw9Y and Fejihejl (being ocly in couttj held tliat it was i^ut ' * ^* 

... V - . good'; 



7xi •^^chaelmas Term, '4ri and 42. Eliz. -In B. R. 

Body good ; for the leafc is the cffcft'of the declaration, and not the in- 
agahjl denti^re ; ^nd a variance between thcni is not material ; as 
Harc.ate. ^^ ^j^ ^ pi^ ^^2^ jg Wherefore non allocatur, * 

i)cbt againft an At ^ANOTHER DAY it was nn^pvcd again, that this declantion 
lMfc"o7 "^"* ought to have been in the detinet^ and not in the dehet inAdct'meti 
forrtnUncur^ becaufe (he hath the term as adminiftratHx,and is notcharged by her 
red after the own contraft, but by an aft of the teftator ; and to that purpofe was 
death of the cited 19. Hen. 8. pL 8- 10. Hen. 7. pi. 5.'; and a precedent was 
^'^'^^^^^'^^fhewn in the common pleas, httwem Barker and Kelfayy where 
^ ^* ""' tlie aftion was brought in the detinct only ; and Godfrey affirm- 
ed, that in out Fenn's Cafe in this court, it was ruled, that tlic 
S.c.5.Co.3i.b. aftion ought to be brought in the dctinet.^-GAvmY. The aftion 
LRoIl-AhTeo^. ^^ ^^^ brought in the de6et ; for this rent, though arrcar after the 
Plowd. 440. * death of the inteftate, began firft in the administratrix, and there- 
5. Co. 36. a. fore the aftion well lies againft her in the debet: for thereafon 
Cro. Jac. 438. why the aftion againft an executor Ihal! be in the rfrf/W is, for 
cro*CaV "216 ^^^^ ^^^ ^^^^ 8^^^ ^"^ ^y ^^^^ teftator ; and therefore it cannot be 
Moor, s'e" ' /**<!» t^^^ ^he executor Met. But in an aftion againft the heir, 
i.BrownL56. it ftiall b#in the ^/f^rf and ^/r//Wf, becaufe he is bound by fpccial 
I. Bom. 23. words in the obligation. And here the debt, which incurred in 
a. Brown!. ao6. ^^^ ^j^^ of the adminiftratrix, is her debt. And in Dyeryb.Edzv.b. 
iSen 54 76 f^' ^'* ^^^ aftion is brought in the debet and detinct^ for rent arrcar 
I. Mod. /85.' in the time of the executor, and admitted to be good. — Popham 
Palm. 116. accord, for (he being charged with the rent in her time, it accrues 
Stiles, 118. by reafon of the profits of the land which fhe hcrfelf received, 
pJpJu'120!* and therefore (he is charged, having quid pro quo: for if an exccu- 
i. Vent. 171. ^or h^^ ^ Ic^fe for years of land of the value of 20I. per anmm^ 
I. Sid. 266. rendering lol. per annum rent, it is aflets in his hands only for lol. 
3. Mod, 327. over and above tlie rent.— Fenner agreed to this opinion ; and to 
^•^^jJ;^**-556. that purpofe cited 10. Hn. 6. pi. 11. tliat the hulband (hall be 
22^ Mod. 7. ' charged after the death of xhtfemcy for rent arrear in his own 
a. Bac. Ab.*3, time,#becaufc he received the profits of the land ; fo as the rent 
443. iji«#»i. grew due in refpeft of the occupation and taking of the profits, 
$.Co.Dig.aoi. 2j^j therefore (be is chargeable, and not merely as adminiftratrix. 
—Clench agreed, with them. Wherefore it was then adjudged 
for the plaintifF.T-NoTE. This judgment was afterwards reverfed 
. in the exchequer chamber for the point in law; for all the 

iusTiCES of the common pleas, and BarOns of the exchequer 
eld, that (he ought to be charged in the detlnet ; becaufe (he is 
charged only by the contrJ<^ of the inteftate [a). 

{a) The reverfal of this judgment is Jac. 545. Cro. Car. 163. i. Mod. i8^« 
not mentioned in the report of this cafe, 1. Vent. 271. t. Sid. 266. 342. 379- 
5. Co. 31. b. but it it there (aid by the edU i. Jones, 269. See 16. & 17. Car. u 
tor to havt been oftea denied to be law. Cro. c. 8. 

Cask 36. Lcuknor againjt Huntley. 

Antty 593. 

A debt cannot TERROR of a judgment in the common pleas. The cafe waSt 

be attached by -^ Xrtvi^or brought debt againft ii/tf«r&;, who pleaded, that one 

ihe cuftom of John Jaques affirmed a plaint of debt in London againft the laid 
^ndm before it Xewtnor^ and by the cuftom there attached the debt now dc* 

Sm* pUinUff*'* manded in the hands of the faid Huntley^ and pleaded tlic recovery 

fwear his debt ^^^ judgment there. Th^ plaiiitifF replied, thftt before the 

b7 attorney. Ante^ 184. {93. a. Bl. Rep. y^g; 

attachment, 



Michaelmas Term, 41 1 and 42. £liz. In B. R; 713 

attachment, Jaques brought debt in tlie queen's bench againft the X»»wkncr 
faid Lewknor^ for the fame debt; whereupon he made an attach- jj/*'^""-^ 
inent whilft that fuit was depending.. Et htic^ bfc. Upon this **'^*' ^* 
plea, Huntley there dcimUrred in law, and It was adjudged tlicrc for 
Huntley: whereupon Levuknor brought error. — The firft errol* 
affigned was, Becaufe the cuftora is alledged, that the plaintiff 
fwore his debt by attorney .-*-And Popham held j that it was againft • 
law that one fliould fwear his debt by attorney. — Secondly, Be- 
caufe the debit is attached in Huntley % hand, before the day of 
payment Upon the condition, and fo before it was due. — ^Poph am 
laid, that it coiild not be a good cuftom. — But it was moved, that 
herein the cuftom might be reafonable, becaufe it is not to be paid 
before the day of payment. But in regard that the leflcr fum iii 
the condition is a prefent duty, it might be attached prcfently j 
and by the judgment in the attachment, the debtor is dif- 
charged againft his creditor, and become chargeable to the plain- 
tiff in London ; fo that after the day of payment he fhall have his 
execution againft the debtor, and not before. Vide 22.Ejdwi/^,pL'y^. Lutw. 994. , 
Biit Poptt AM laid, That the judgment herein was unrcafonable ; x- Brovrnl.-6d. 
for the creditor hath not above one year difrattonare deb'itum. And »'CoiDig. 42^. 
if the dtbt might be attached a full year or more before the day of 
payment, he may never hear of it before the year be paft,and fo be 
defrauded of his debt. — But Daniel, y^r/V^«f, faid, th:lt the time 
difrationare detitum^ is a year after the execution fued, and not tut. 994; 
forthwith after the judgment; and execution cannot be had until i. Leon. 52. 
after the day of payment. — Popham demanded, Whether this '-^^'^ ^^p-'^^- 
queftxon was moved in the common pleas? Daniel anfweted, that ^' ^ '^ '^^^' 
it was not ; but that the folc queftion there was, in rcgzrd Jaques 
had begun a fuit in the queen's bench againft Lewkmf for his Ante, 157, 
debt. Whether, whilft this fuit was depending, hcf might make 
kix attachment in London^ by the cuftom there, of another debt 
due to LewknvrP And it was adjudged, that notwithftanding 
this, the debt in the hands of Huntley itiight be attached ; for there 
was not any fuit commenced for it in arty <^oUrt. — PbPriAM and 
CLENtH, and Y}-,si!iEVij ahfente Gawdy, Jtgreed, that this at* 
tachment was good notwithftanding ; but thfey all held, that th«f 
attachmcJnt of this debt before the day of payment cartnot be 5 Antc^ iZ^i 
although it were moVed, that the cuftodi in this point is good and 
reafonable, and fo it hath been always allowed ; and this is to be 
intended betwixt citizens and tncrchants. And if it be not there 
allowable, there (hall never be an attachment ; for if it cannot be 
before the day of payment, the defendant before that time fnay be 
out of the city, or dfewhere ; againft whom there caniiot be any 
attachment (a)i 

(a ) Ld. Ch. B* Comyns, t. Dig. 414. fayi tlh^Ion talc^ri i$, tha( if the firtl dtbi be cfue 
this cafe, i^nd (he cafe of Vahon v. SUiU^^ ' at the time of the plaint, the fccond diebe 
ante, iS4. Aem ini('-re|>orted ; and in the may be attached although the day ^fhspay.^ 
report of the latter oafe in 3. JLcofi. 236 ment is not then arrived. 
k, Ltit. 9S44 li RoU. Abn 553. the dif^ 

Afterward, at another time, another errbr was moved, that 
the cuftom is alledged, that the plaintiff fliould fwear his ddbt-; 
and John jaques Was pkintifT ; and the record is, that Thomas 
JaqUis (ware the debt, who Was a ftranger and not the f)laintifF^ 
'—And that was held to be incurable, and could not t>e amended* 
Wherefore the judgment was reverfed, 

cue. ELiz. FART ii« B b b Skclhota 



7^4 Michaelmas Term, 41 . and 42. Eliz. In B. R; '- 

^^" 37- ' ' Skelhorn agaittft Harrifon. 

^I'^.ty^y!^'^ A CTIONUPONTHECASE. And declares, how he brought 
oTan W^wrf" '^ ^ plaint of debt in London againft one Ridley ^ and that the 
to remove the' cuftoiB o( London is, that if any be arrefted there upon fuch a 
caufc, procure plaint, that he fliould remain in prifon until he found two main- 
oiheri whom pernors for his appearance de die In diem auoufque placitum determine^ 
inf^Strto '^'^^ And that if he were condemqed, he fhbuld render his body 
be baa in ihc Or pay the condemnation : or otherwife thp plaintiff might take 
fuperior court, his execution againft the mainpernors. And alledgeth, that the de- 
anaftioncn the fendant and one Peter Houghton became bail for this adion in 
ThL^'fOTthcT" ioW^«; and that the defendant, with an intent to defraud and 
deceit. hinder the plaintiff in the faid fuit, procured an habeas corpus 

Ante, 6i8« out of the exchequer to remove the caufe thitlier ; and that he 
t Roil.Ab.ioz Procured and hired one Price and one P/>, whom he knew to be 
Cro. Jac. 6q2. infufficicnt, for 20s. given to them, to be bail there ; and that 
he informed the Court that they were fufficicnt ; whereupon Price 
and Pit were received as bail m the exchequer ; and thereby the 
defendant and Huntley were difcharged of the bail in London: and 
^ that afterwards the plaintiff procured 2i procedendo (a) y and had 

Cro^iac zoU ]^^S^^^^ in London \ and that th& faid Ridley y, upon a capias ad 
363* ' fatlsfaclendum^ was returned non cjl Inventus^ and that Ridley went 

Ydv. 120. beyond feas. So that by this fraud he could not have execution 
Moor, 836. againft him, nor againft his mainpernors \ whereupon he brought 
a* Bum. a86. ^j^j^ aftion. The defendant pleaded not guilty, and was found 
not guilty quoad the procurement of tlie habeas corpus ^ ei quoad 
rejiduum that he was guilty. — And it was moved by Tanfield 
and DoDERiDGE, that upon this verdift the aftion is not main- 
tainable ; for the hiring of the bail is not material, nor is any 
prejudice to the plaintiff; but the allowing thereof in court, 
which i« the aft of tlie Court. Wherefore an aftion lies not ; 
as 21. Edvj, 4. pL 22, is. And here, the information of the de- 
fendant is no. caufe to accept them. — But the Court ufeth to 
examine them upon oatli, which was the caufe of allowance ; 
and therefore, the defendant is not punifliable ; and what is done 
judicially cannot be punifhed ; as 9. Hen, 6. pU 60. 12. Hen. 6. 
' pL 3. 2. Rich. 3. pL 10. — And Tanfield moved, that of fomc 
things put in the declaration nothing is found at all, and therefore 
all is ill. — But bccaufe it appeared upon the dorfe of the writ, that 
the jury had found hinj guilty of all, except the fuing of the 
habeas cor pus y It was held, that the record was mif-certified, and that 
it fliould b6 amended ; and it was fo ordered accordingly. — Alt- 
HAM9 for the plaintiffs moved, that the a£lion well lay ; for al- 
though the bail was allowed by the Court, that proceeded upon 
mif-information of the party, who is punifhablc for that falfc 
fuggeftion, becaufc he had deceived the Court. For the ftatutc 
oilVeJlm. I. cap. 29. provides, that deceits to Courts fliall be 
punilhed, by whomfocver they be, by imprifonment; yet that 
doth not hinder but that an aftion upon the cafe may well lie ; 
as li. Hen. 6. />/.'8. and 21. Eduf. 4. fL 22. So where a pro- 
teftion is caft qulja prcfc^urus^ and he doth not go beyond fea, 
aftion of deceit lies, as 20. Hen. 6. pi. 10. and 44. Edw. 3. fl.l^* 
Wherefore, &c. — Gawdy and Popham held that this aftion 
well lay for this falfity. But, becaufc the vcrdift was not fully 
ccrti£edy they ordered that it Ihould be amended : and then tlicy 



Michaelmis Term, 41. and 42^ Ellz. In C. B. yrg 

xrould difpute the matter. Et aJjourmtun^--AftcTWKvds it .was Skilmohm 
fully certified, and adjudged for the plaintifF. HaTiTok. 

Riggs againj Bullingham. Cas^ 3s. 

A SSUMPSIT. Whereas he was feifed in fee of the advowfon of a grant mtrfeto 
■^ Beckinghamy ill the county of Lincoln ; in confideration that he, the defendant at 
at the defendant's requeft, by his deed, dediffet et concejfiffet to the *" •«"' '"'f*"-^ 
defendant the firft and next avoidance of the faid church, the de- ^0^^'^^ 
fcndant, 22. Jiuguft^ 37. EU%, aiTumcd to pay to the plaintifF lool. and win fupport 
&c. Upon non ajjumpjh pleaded, it was found for the plaintifF, and an aaion on a 
damages aflcfled to an lool. And, after verdift, it was moved in ar- ^ubfequent pro- 



teft of judgment, that this confideration is paft, and therefore not ^^^^ ^^^^°"^f 
fu/Bcient to ground an ajfumpfit ; for there is not any time of the wA«"/ih^ gjant 
grant alledged ; and it might have been divers years before the af-^ was made. 



fumpjtt made : and being a thing executed and paft, no ajfumpfit ^.i-- Ante, 59. 
tcrwards Can be good : and in proof thereof, Dyer^ 272. Hunt v. P®^- 880. W5. 
Bates was cited. — But all the Court refolved to the contrary ; x. Roll. Ab. 13. 
for tlic grant being made at his requeft, it is a fufficient confidera-^^<>- J«=» *8. . 
tion, although it were divers years before ; efpecially being to the de- J,'^^* ^^^ 
fendant hinifelf,the confideration ihall betaken to continue. But if Mo<Jr, 854. 
the grant had been to a ftranger, and not at the defendant's requeft, i.Bac. Ab. 178^ 
it had peradvcnture been otherwife. — Secondly, The declaration is 
not good ; becaufe there is not any time or place alledged where 
the grant was made. — Sedmn allocatur: for it is but an inducement 
to the adion, and therefore needi not to be fo prccifely alledged. 
Wherefore it was adjudged for the plaintiff. Fide. 25. Eliz. Marjh 
V, Kavensford^ Ante^ 59. 

Michaelmas Term/ 

41. & 42.Eliz. In the Common Pleas. 
Sir Edmund Anderfon, Knt. Chief Juftice. 
Thomas Walmfley, Efq. i 
John jGlanvUe, Efq. > Jujikes. 

George Kingfmil, Efq. J 

Sir Edward Coke, KnL Attorney General. 
Sir Thomas Fleniing, Knt. Solicitor General. 

Marrow a^ainjl Turpin. 

Eafter Term, 41. Eliz. Roll 2485. 
r\EBT againft the defendant, as adminiftrator of George Turpin if the admim- 
*^ for fent a'rfear japon a leafe to the int^ftate, incurred after his ^atorof aief* 
death. The defendant pleads, that before the rent incurred, for^*=**^»5n ^*^ 
which the aftion is brought, he affigned over the eftate a;id term ^f "^ *****. *^^<"V 
to a ftranger, who entered ; and the plaintiff, knowing of that ]^tucmx\!c 
grant, had afterwards accepted of the rent from the fti anger, he affignce, cannot 
being then poflefled, fcc. and demanded judgment, he. And it ^'"•''•g <*«^' 
was thereupon demurred. The fole queftion was, Whether an *2**"^ **** *^' 
adminiftrator (hall be charged for the rent arrear after the grant ?— rlars of Tentaf- 
And it was clearly refolved, that hcfliould not : for, if he fells the ter theaflijn^ 

mcnt. 
Ant?, 555. Moor, 600. I. Saund, 240. a. And. 133. a. Saujnd. toe, 

B b b 3 term 



CASt U 



X 



yi6 



MarkOw 

agatnji 

TuKPlN* 



Cxae «• 



One bond can- 
not be pleaded 
ill bar to debt 
on another. 
Poft*^2^ 
Ante, 4^5. * 

6. Co. 44. b. 
Cro. Car. 86, 
I. Brownl. 74. 

Cask 3. 

On a condition 
to give Aich a 
reieafe ai jf, 
IhuMld approve, 
the party muft 
tender a reieafe 
to jf, for Kis 
approbation. 
Po(t 864. 

Co. Lit. 209. a. 

5. Co. 23. b. 

6. Co. 3f. a. 
3. Lev. 319.' 
a. Com. Dig. 

455- 
Dougl. 684* 

Case 4. 



A jaftificatidn 
in trover as for 
an cftray muft 
aHedge tiie pa- 
tent* and that 
procbmation 
was made at 
the piriAi 
•ivurch; and 
t!.e vill mull 
»ot betravcrfed. 
Ante, 99* 

X.Roli.Ab.878; 



Michaelmas Tefni, 41. and 41. Eliz. In C. S. 

ttrm for the payment of debts, it is not reafoh that afterwards he 
fhould be charged with the rent alfo ; c fpecially in this cafe, where 
the leiTor had knowledge of the grant, and accepted the rent from 
the grantee. And tlic cafe adjudged in tlie queen's bench, 29. £//%. 
IValkcr V. Harrisy was denied by Anderson, Walmsley, and 
Glanvile, to be law ; for the Icflee bimfelf is not chargeable with 
the rent after the granting over his cftate. And thev held it to be 
tinreafonable, that the grantor (hould be always cnargcd for the 
grantee's infufficiency. Wherefore it was adjudged for the defen- 
dant (a), 3. Co. 24.' fValker's Cafe. 

{a) It is fa'td in Latth. 260. that no port ; and In 4. Mod. 76. it is denied to be 
judgment was gjven in this cafe. Sedvide law. Sed Vide 3. Co. 24. a. Fop. 1 20. 
a. Vent. a^o. In 3. Mod. 326. it is faid i, Sid. 166. Noy, 97. CoUWf. i»o. 
to have been refolded contrary to this re- i. Lc;v. la^. Co^p. 143 1 Dou^l. 183. 

Manhood agatnft Crick. 

Trtntty Term^ 41 . Elix^ Roll 1 209. 
T\EBT Upon an obligation of 81. being a fingle obligation. The 
-"-^ defendant pleaded in bar that, after the obligation made, he 
entered. into another obligation of 14I. unto the plaintiff for the 
payment of 7I. at fuch a place and day as was yet to come, which 
the plaintiff accepted in dilcharge of the fiiid bond of 81. And it 
was thereupon demurred* — And without argument adjudged for 
the plaintiff, that the plea was ill, and not any ban 
Lit. Rep. 58. Hobart, 68. li Mod. 225* Cowp. 47. i. Burr. 9. 

Lamb, Executor of Drables, agatnft BroWnwent* 

Trinity Ttrm^ 4 1 . £//«, Roll jap. 

TAEBT upon an obligation, conditioned, that If tlie defendant 
^^ in Aftchaelmas Term then next cnfuing, in the prerogative 
court of the zxchh\i)\o^ of Canterbury at London^ fhould give 10 the 
faid'-D>v?^/r^, his executor oi* admihiftrator, fuch a rcledfe and dif- 
charge from and agaihfl him and his children, for tlic receipt of 100 
marks, as by the Judge of the court fhould be thought meet ; tliat 
then, &c. The defendant pleaded, that the fame Term one Such 
was Judge there, and that the faid Judge did not devife or ap- 
point any reieafe or difcharge, &c. — And it was thereupon de- 
murred ; and adjudged to be no plea ; for that it is not allcdgcd 
that he.caufed a reieafe to be drawn, and tendered to the Jadge to 
be allowed : for it is on his part, in difcharge of his obligation, to 
draw fuch a leafe as the Judge fhould allow. Wherefore it was ad- 
judged for the plaintiff, 5. Co. 23. b. Poft, 864. 

Brownlow againfi Lambert. 

Trinity Term, 41. Eliz, Roll 1630." 
'T^ROVER and conversion of a cow at Salop. The dcfen- 
-■- dant pleaded, that the queen was feifcd in fee of fuch a manor, 
and demilcd it and all eflrays therein, &c. to jf. S. for life, and con-- 
veys it by mean conveyances to himfelf ; and that this cow came 
thither as an eflray ; whereupon he feized her, and caufed her to 
.be proclaimed in two market-towns next adjoining: and the plain- 
tiff claimed property ; and the defendant demandmgpf him to pay 
for her feeding, that he refufed ; and tliereupon he denied to de- 
liver the'cow ; and traverfes, that he is guilty of tlic converfion at 
Salop, It was thereupon demurred.— FiRST, Bccaufc Ucalledgcd 

not 



Michaelmas Tcnn, 41. and 42. Eliz. In C. B. yif 

not tlie letters patents. — Secondly, Becaufe healledged not, that b»owni.oW 
the proclamations were made in the pariih church.-^— Thirdly,- LAlfilniT. 
Sccaufe he traverfctli the vill. — And it was adj udged for the plaintiff. 

Eri(h againft Rives, Case 5. 

17JECTIONE FIRMiE, for copyhold larid, parcel of the manor Copyholds can- 
•*-' of Thiftleworth, Not guilty being pleaded upon evidence, "o* *>« entailed 
thefe queftions were debated.— First, Whether there may ^^ * ^^cu^o ^^" 
tenancy in tail of copyhold land, without a fpccial cuftom?— And Ant^^jgT' 
ALL THE Justices agreed, that there could not, unlcfs it had been Poft. 907.' 
fo ufed there from time whereof, &c. And to that P*n^pofe q^ ^.^ ^^ y^ 
Walmsley cited, that in Haftingv. Grcys^ in the dutchy-chamoer, codb. 368, 
it was debated brfore all the Justices, and refolvcd by them, 3. Co. 8. 
that there could not be an eftate tail of copyhold land, unlefs i-Sid. 314. 
there be a fpccial cuftom within the manor to warrant it. ^'***- "^f*' '^^• 

* rOp. 129. 

8. Mod. 13. 2. Atk. 101. a. Com, Dtg. 490. 494. i. Stra. 488. 

Secondly,, They all agreed, admitting it were an eftate tail, Thefurrcndcr 
that a furrender tliereof is a difcontinuance to put the iffue to his of '« wpyhoid 
aftion ; for he ought to ukc it fubjeft to all tlie inconveniencies !?/^*?** "* 
which an eftate tail at tlie common law is fubjca unto ; for that of the cftaic. 
IS the ciiftoraary conveyance, and there is not any otlier means to Port. 907. 
difcontinue it ; and it is as ftrong as a livery by tenant in tail : Ame, 90. 148. 
and tlie alienee is in by the tenant in tail, although he come in by 373*483. 
grant of the lord. And there is no queftion but that vl formedon Co. Lie 60. b. 
may be brought, fuppofing the entry by the tenant in tail, and not Moor, 358. 7 35. 
by the lord ; and fo 2l ^cmc fhall have a cut in vita: where one is ^^"i^^' 
alfo in by the lord by his admittance, his eftate fhall not be avoid- i, Browni.44. 
cd without a recovery in the lord's court ; for the lord ought to 79. 
have couufance of his tenant : and therefore an eftate given by fur- Gilb.Tcn. i^x. 
Tender in the lord's court cannot be avoided without a recovery 
there, and not by entry. 

Thirdly, Admitting that the furrender of ^ feme covert^ being It Isa goodcuf- 
fole examined, Ihould bind her by the cuftom, Whether fuch ^"™»^^ */*'"' 



a furrender upon her examination, made before two tenants of d^/Jna*^ fu^'"*'* 
the manor, fuch furrendcrs before them being ufed to be d^ JJ^Jwo^r' 
made, be good ? — And all the Court agreed, that by fpccial nams of the 



cuftom to warrant it, it may be good, otherwifc not ; becaule it is «n«norout of 
a judicial aft more proper to be done in court. — And fo it was ad- ^^^' 
judged, as Walmsley faid, upon a demurrer, in a Lancajhire cafe, ^^^ ^°" 
where fuch a cuftom was pleaded, and adjudged good. ,^* ^^' 

I. Salk. 95. 184. Cro. Jac. 516. 1. Leoo. %%%. GUb. Ten. 31*. 

Fourthly, Whether a furrender made to the fteward, to th^ Th^furrcndw 
life of the fteward himfelf, be good ?— And all the Justices of a copyhold 
Jield, that it was ; for the entry is, qucdfurfum reddidit in mamis do- *^|!j* ^^^t^ 
mini : and the fteward is but the lord's fervant, and the furrender fteward himfaf 
is to the lord, and not unto him. And therefore Gl anvile faid, u good, 
if one makes a recognizance to J. S. to my ufe, it may be wellac- ^o Lit. 50 
knowledecd before myfelf : fo if an obligation be made to J, S. i.Salk. jl9« 
tp my ule, it may be delivered to me to the ufe of J. S. And al- 
though it was here offered to prove by witnefles, that by the cuftom 
of the manor a furrender could not be made to the fteward himfelf 
•to his own ufe, the Court rejeftcd it ; for it is againft law. 

' B b b 3 FlFTllLY, 



|^i8 Michaelmas Term, 41. and 42. Eliz. In C. B* 

Ermh Fifthly, Where a copyholder makes alcafcforycars according 

«^«'«y^ to the cuftom of the manor. Whether fuch a leffceupon oufler mav 

piaintain an ejeiJione firma at the common law ? — Gl an vile faid, 

^. ifthelcfl*ee that it'had been fo refolved. in this court, that an cjcHione fixnuff 

of a copyhoMer |jj»s^ making mention in the declaration of the cuftom to demife^ 

canrnaintiunan g^c.—But Walmsley feeilicd to doubt thereof. 

cjuflment ? 

Anic,ai4.(469) 4S3. 535. 623. 676. a. Com. Dig. 530. Gilb.Ten. 213. 

Case 6. MiUs agaiYift Wood, 

> Trinity Term, ^l. £liz. Roll ^002. 

Whoever is A UDITA QUERELA. The cafe was. That Edu;ard Milts 

' hojnd 10 make "^^ and Thomas were obliged in a ftatute of 700I. to fVood. The 

an aiTurance, it Jefeafance was, That \{ Edward Mills and his wife, before the firft 

i!vtod^the'" of^^.v ncTtt following, Ihould make fuch good affurance of an 

fyftaa, houfe to Wood^ w^ith fuch covenants which he ihould accept, and 

Ante, 396. fignify under his hand to be reaforiable, or fhould pay unto him 

39S. 539. upon the firft oi Auguft enfuing J50I. that then tlie ftatute fhould 

Port. 864* jjg yQjj . ^j^(j jjg furmifeth, that he and his femevjere always ready 

Moor, 645. to have made the affurance ; and that If^ood^ the conufce, had not 

1. Mod. 264. fignificd what affurance he would accept, nor required any ; and 

aMod.*7C2oi y^^ 1^^-^ f"^^ execution, &c. — And it was thereupon demurred ; 

3! Lev.' 137. and after argument adjndged for >the defendant : for he is not 

I. Wood's Con. bound to devife any anurance or eftate ; but it is at his cle&ion 

4-4'- to<iccept an eftate tendered, or the money ; and tliere cannot be 

Uougl 69c. ^^ acceptance, but where there is a tender on the otlier party ; and 

therefore the conufor ought to have devifed the eftate, and to have 

procured the conufce to accept thereof; otherwife he ought to pay 

the money. Wherefore it was adjudged accordingly. 

Case 7. Plcdgard agatnjl Lake, 

A recovery fuf- HT'ENANT for life, ryuaindcr in tail* he in remainder lets for 
itrcii by tenant 1 ^ears, to begin after the death of the. tenant for life ; the tc- 
{"J'^Yuc"cr!hc "^"^ ^^^ ^^^^ afterwards fuffers a recovery with voucher of him in 
remainder man remainder iu tail, and dies': Whether this leafe were deftroyedand 
in tall, will net gonc ? was the qucftipn. — And all the Jtstices held, that it 
dcaroy a leafe was not ; btit that the leffce might well falfify this recovery by the 
dL'nun^'madc ^^""^"^<^"^ law, and alfo by the ftatutcs : but if the tenant in tail, 
trcommenTc ^ ^"^'^^^ had the inheritance, had fufFcred a common recovery, that 
after the death fhould havc deftroycd all the remainders and reversions thereupon 
ofthc tenant for depending, and aU the cftates derived out of fuch a remainder; 
J»«« but tenant for life hath not any fuch power : and the recovery is 

VoO^^nz! ^^^* againft tenant for life with the voucher of the tenant in tail : 
and it woiild be very inconvenient if, by fuch recoveries of rever- 
V. Co. 1^6.^61. ^^'^^> Icafes for years (hould be deftroycd. Wherefore, &c. 

^!oor, 158. 6. Co. 41. a. 10. Co. 37. b. a. RolL 3<)<5. i. Co. 6t. b. Eq, Ab. a 57. 3. Com. 
Dig. 232. (B. 25*) 2. Bac. Ab. 54S. 550. 4. Bac^ Ab. 31S. PigotoD Recov. 114, 1%^. x6z. Cruift 
•n Recov. 253. 

Case a. Prlcc dgal^J Simpfon* 

Hiliiry Termt 41. ^/r«. Roll IO97. 
An adnilnlft-a- 'T^RESPASS. Upon a fpecial verdift the cafe was, Jackfcn^ fef- 
xwdnrmnttmi^ X ^^^ f^j. ygars by fcvcral leafes of divers lands, fomc of them in 
ntirc auu can- ^j^^ dioccfc of Yofk^ foHic ifi anothcr peculiar within the fame dio- 
theg^ood^oTtlic^^'^' devifed all thofe leafes to. his fon, and made his daughter 
infant executor, within age liis executrix. The mother takes adi)[iinifti-ation du- 
Ante, 217. £. Co. 2-}. 6. Co. 67, 2. And. xga. j. Roil. Ab. 91c. Uwcu, 35. Codb. 1^4. 
».Bac.A&. 3S2.-3. Peer. WiL*. S9. 



Michaelmas Term, 41, and 42. Eliz. In C. B. 719 

rante mtnore atatt of the executrix in the peculiar where the tcftator ^^^^\ 
died, ad commodum et proficuum executrids. The admin iftratrix c */- ., 
granted this term, durante minorc atate of the executrix, to 
the plaintiff : Whether this grant was good, or not ? was the 
principal queftion. — The. Court refolved, that it was not good ; 
for itch an adminiftration hath but a fpecial property ad proficuum 
txecutorisy but not a general property, as another executor or admi- 
niftrator hath : and therefore his fale of goods, unlefs they be bonu 
ferituray or it be for ncccffity, for the payment of debts which he ii 
chargeable to pay, it Ihall not bind : but he may fuc, and be fued, 
and yet his authority is but a limited authority ; and tliercfore like 
as if letters ad colligendum bona defunct were granted to one, there he ' 
may fell lona peritura \ as fruit, or the like. 

Seconply, It was moved, Whether the aflent of an admini- AiTcnt by an 
llrator durante mimre atate to the devife of a term, or the kflent ^^miniftrator 
of the executor himfelf during his minority to fuch a devife, be g^^^"* ^^^•r$y 
good ? — Anderson faid, that an executor at the age of eighteen 
years may aflent ; but, Whether the aflent by fuch an adminiftra- . 
tion be good, or not? they doubted [a), (<,) Ante, 601. 

Cfo. Car, 490. 5. Co. %^, 

Thirdly, It was moved, Whetlier admiaiftration fliould in ^f «« »n«<?ftat« 
this cafe be granted at two places, viz. the one within the peculiar, ^?« 8^o**» •" » 
the other by the archbifliop of Torky ordinary of the diocefe ? or, in^^pecuHar^ ^ 
Whether he Ihould have the prerogative in both, as he had where two feveral ad. 
. bona notabilia were in divers dioceles ?r-And it was refolved, that nninii^rations 
there Ihould be two letters of adminiftration granted : for the niort*>€grantcd, 
archBiihop fhall not have any prerogative here ; bccaufe this pe- ' 79'- 
culiar was firft derived out of his jurifdiftion. Wherefore, &c. '* \^* l'* 

5- ^^-^9- i.Salk. 39, 

Gilb, on Wills, 423. 

The Queen againfi Page, and the Bilhop of London. Casi 9. 

•/^UARE IMPEDIT. And made her title by lapfe, by the A Jifjf>m/ati,m 
^*^ 21. Hen. 8. c. 13. for that the incumbent had taken a fecond I? ^°*** * P^"*"*- 
l)encfice. The defendant pleads, that he is and was chaplain to the^rd"^^"^* 
Lord Afcr ley \ and pleads a difpcnfation from the archbifhop oi penfamut'^*^iii% 
Cantctburyy according to the ,ftatutc, and the confirmation, &c. fufficicnt to fay. 
Upon oyer demanded tl\ereof, and entered in hac verba^ it was de- " MMm»s,«nnex* 
murred in law ; becaufe that in the letters of difpcnfation the words |^ '^*^'J]J/,1^*^' 
were, mentioning the two benefices to be of fmall value, " unimusy Anw'^^soo. 
** anneximusy et tncorporamusy^ the fecond benefice to the firfl, with- * 
out theword of " difpenfamus*^ for the taking thereof: and, Whe- MoS, 159. 
ther thcfe words fhall enure to a difpcnfation ? was the queftion. 5- ^^' i^* 
— And, after argument by the ferjcant^, it was argued by Dofiors ^^*' 
Steward, Day, and Farrington, that it cannot enure to be a 
difpcnfation : for the purpofe of him who made it was to make an 
pnion, and that this Ihould enure as an union : and it cannot be 
,an union ; for that ought to be always by the ordinary of the dio- 
cefe and the patron ; and when it fails in the principal mtent, it is 
void in all : and the purpofe to make it an union appears, for that 
the words are ipcorporamMSy l^c which are not ufed in a difpcnfation ; 
•and tliat he fhould hold itjine llcentia diocefam\ and that after the 
incumbent's death it ftould revert to his proper nature ; which 

Bbb4 ve 



726 Michaelmas Term, ^i, and 41. EHz, In C. B. 

TheQwrBN arc Hot the words of a difpcnfation : and althotigh he hath power 
mgainft to . jBakc a difpcufation, tliat will not enure thereto ; for voluntate^ 

^BisHo" Vf^^ ^//)c?/fy?fl/^ repugnantibus^ all is void. And an Ainioij and difpenfation 
I-oNpoN, ^^^ of divers natures ; for an union makes of two churches one ; 
but a difpenfation leaves them as before : and fuch difpenfation of 
pluralities are called in the civil hw gratia et ftrl^'t juris^ ^uia adlofa 
funt ; and therefore where a difpenfation was to retain a iecond bc^ 
nefice Vf donatione^ difpojit'tpm^ feu prafentatione cujufcunque\ and a 
college had an advowlon which became void, and they ufed by 
cleAion to make a nomination thereto, and thejr chofe him who 
f had this difpenfation, who being prefented, was mftitutcd and in- 
iip£l.ed ; this difpenfation was not fufficient to retain, becaufe he 
had not the word " eleftion^' therein, — ^But on the other fide, it wa^ 
argued by DodtorsCROMPTONand Fountain, tliat this is agood 
difpenfation ; for there is difference between a perpetual union, 
and a temporary pro vita incumbentis : for, in the nrft, it cannot be 
without the patron and ordinary, becaufe thereby a lofs accrues 
unto them ; but in tlie fecond, it may be without them by the 
pietropolitan : for there they are not at any lofs ; for the one had 
his prefentation, the othef his admiilion, before that union ; and 
after hh death it ihall revert to the firft cftate ; and fuch an union 
in their l^w is called palliata difpenfatio : and tliat fuch an union 
may be, appears by the exprefs words of the ftatute of 21. Hen. 8. 
c. 1 2. th^t pne mall not retain a fecond benefice, ** any licence, 
♦• union, qr cjifpenfation to the contrary, &c." and there it is 
not intended a perpetual union ; for by fuch an union two churchea 
jirc but one j and \n f\ich a cafe he 'may take a fecond benefice witli- 
out a difpenfation, &c,-?^And afterwards, all the Justices, ex- 
cept ANpER80N,refotved, that it was a fufficient difpenfation ; 
for it IS not of neceffity to have the word " difpenfation :••* but the 
matter is. Whether it be iq effeft a difpenfation? And if the cir- 
cumftances prove it, it Is fufficient. And although union is pro- 

, perly where there is an annexipn of one benefice to another perpe- 

tually ; yet it is alfo when there is an unity of theiii in one pcrfoii, 
which is temporary; and that is her^, although not fo properly a| 
the other. Wherefore it was adjudged ipr the defendant, 

<^'A«* lOt Marlhal agai^Ji i)ean« 

To«ifcofcaman A CTION upon the cafe for thefc words : " The plaintiff is a 
Af having for. -f* «* fopfworn kiiave." The plaintiff demanding of him where 
(worn himfcif j^^ ^^8 forfwom ; he anfwered, ** In J/fton court," imuendo a court 
is aabnabl^' Icet there holdcn. It was- moved, that an aftion lies not for thefc 
Aitt«,i35. ^92. words ; for the calling oi^e " forfworn knave," unlefs he faith 
^P9. in court, is not aAionahle (which was agreed per Curiam): 

then the Court here cannot know that Iljion court was any 
court of record ; and the ififwejiH/^ cannot help that which is im- 
pcrfcft. And therefore Williams faid, it was adjudged, that 
for faying, ** Thou wert forfworn in fVbite-church court," an ac- 
tion lay not. — But Note, This cafe was ihewn to the Court 
jn writing, 28. KHz. between Hnn and Hix ; and the opinion 
f)f the Court thcfc was, that the adtion Jay ; and the defendant 



Michaelmas Term, 41 • and 42. Eliz. In C. B. 7«» 

gave to the plaintiff 3I. and he rclcafcd his fuit, and no judg- MAnsHAt 
ipcnt was given. — And all the Court here held, that the ^^^^"^^ 
adion well lay*; for this adion is given by rcafon of the dif- 
crcdit of fuCh words amongft the neighbours ; and when he faid, 
that he was *• forfworn in fuch a court," it cannot be intended, 
but tliat it was a court of juftice. And the cafe of fViU and 
Cookman (a) was cited, that for thefc words, " Thou art a falfc 
" forfworn man, and wert forfworn in fuch a court," it was 
adjudged tliat the aftion lay. 

(a) Ante, 432. 

Thomfon againjl Butler. casr u. 

TN a writ of annuity, the cafe was, That one granted an annuity, in • writ of an- 
* to be paid at thehoufe of the grantor upon requeft, at the four n»»V» lobepwd 
ufual fe^fts. The grantee brings a writ of annuity for rent due at "j'^^j^JI^' " 
fuch a feaft. The defendant pleaded non requijitus at the feaft ; and J* ^t^^^ tJ^ 
it was thereupon demurred. The folequeflion was, Whether the queft. 
annuity be loft for that time, becaufe there was not any requeft Ante, $4** 
made ? — ^The Court held, that it was not; for by the grant- 2. Lw. i^iU 
ing of the annuity, it is a duty ; and the limitation, to be paid at 
four terms of the year, is a limitation of the payment: and if it 
were not a duty, the requeft is not material ; as in the cafe of 
Lamafter v. Capps («), where a fingle bond was xoauiit folvendum 
upon requeft, the defendant pleaded non requi/itusy and. adjudged 
to be np plea; for it was a duty witliout requeft. So here. 

{a) Ante, 54S. 

Crawley's Cafe. ' Case h. 

T3 EPLE VIM". The cafe was, A rent was granted to two during A rent granted 
•*^ the life of J, S. to his ufe :. Whether if the two die, living «© ^- and ^ ^^ 
7. S. the rent were gone, or no ? was the queftion. For it was ^^^^ ^ll^\^',^^\ 
agreed, that there cannot be an occupancy ot a rent, Dyer^ i86.(/?) ir/inC^forhis 
—And it was held, that it was not gone, efpecially in this cafe ; for own life, 
the rent being granted to the ufe of J. S. it vcfted in him by the I'oft. 901. 
27. Hen. 8. c. 10. fo as he had an abfolute eftate during his life ; 2. And. 130. 
and the lives of the grantees is not material, the eftate being tranf- Owen, jts. 
fcrred from them ; otherwife it had been of a grant to an ufe be- ^^* ^7- »• 
fore 'the ftatute. . i.Ter.Rep-444, 

(a) Co. Lit. 41. Moor, 6S4. Vau^b. 109.200. %• Ro»l. Abr. 150. 5. Co. 9. 

Coward againft Marihal. Cash 13, 

T^RESPASS. Upon a fpecial verdift, the cafe was, One by his if lands be de^ 
-■• will devifed his lands to J. his youngeft fon, and his heirs, ^'fe^ to a f^n 
and afterwards remarried, and by another will in writing devifed ^^ ^^^* * "^^^'^^ 
the land to his feme for life, paying annually to J. his youngeft t^^lThJl^o^ 
fon, and to his heirs, fuch a rent. Whether this fecond will was a feme of the tef- 
revocation of the former? was the queftion.— And Anderson and tator, allowing 
Glanvile held it to be no revocation, but that both may ftand *" annuity to 
although they be by feveral writings ; unlefs it be manifeftly !^^:L!* .?,. 
contrary to the firft will, or that there be an exprefs revocation fol^m^wi^! 
th|j:em ; but they ought to ftand together, if they may, as made Ante, 9. 
by, and in one and the fame writing. And here his intention j-on 
appears, that he had not any purpofe to alter it as to his fon, but Lnc, I'ls!' 
only to provide for his feme^ whom he afterwards efpoufed ; and Yeiv. jm. 

CroCar.24. Cro.Jac.49.69i. I. Show. 537. Hard. 374. CHb. on Dcv. ,03. "f 'sflk ,8« 
?.SaIk.59,. Coinlp. 90, 209. 3. Mod. 203. Sho. Caf. I^ar! ,46. 1. V«cy ,8, I'TtyAl 
f.wd^, Poriic^ ,1, 3, WUf. 50;, 5i4t a. Bl. Rep. 937, towp:-87"5.:!s;-e ,9rc.;f;,T3. 



7^^ Michaelmas Term, 41. and 42. Eliz. . In C. B. 

CowARB by the appointing of the rent to his foil, it appears that his intent 
Marshal ^^^' ^^^^ ^^^ Fcverlion fliotild bc to his fon. — The matter waa 
afterwards ended by arbitrament. 

CAfi 14. Greenfield againft Dennis and his Wife. 

In waftc, if tU T^ASTE by Richard Greenfield againft Walter Dennis and his 
nmii be againft ^ ▼ wife, ]ate Wife of George Greenfield. The writ was general^ 

i"^!' w"^"and **^ ^^ ^^^^ ^^^^ ^^^^^ ** "^^^ ^* dimijfiwe Gew^e Greenfield ; and 
ihT'dccb-at'ion *^^ count was fpecial, that George Greenfield inteoffed divers, to 
flicwafcoff- the intent a recovery (hould bc fufFered againft them; where- 
iwnt to B. it is in they Ihould vouch George Greenfield^ who ihould vouch the 
hv\,{or tUcwnt common vouchee, which Ihould b« to the ufe of George Greenfield 

12^il^iuZit, ^^"^ ^^^^' ^"^ ^^^^^ ^^ ^^^ ^^^ ^^ ^^^^ ^^^ ^'^^ (^^^^ '^^^ defendant), 
^' ' and after to the ufe of George Greenfield in tail, remainder' to his 
lo«r^"^ '^' right heirs ; which was executed accordingly. After " nulvjajl^* 
VeiV^iJs.'^ pleaded, and found for the plaintiff, this matter was alledged in 
1. isid. 84! ' arreft of judgment, that the writ did not warrant the count ; for 
«i>H.'N.P.:;23. the writ ought to bc fpecial, and to have recited all the matter, or 
Cio^jac. 185, . i|. ought to have fuppofed the demife of the feoffees ; for as this 

tfsaund. 117. ^^ ^^» ^^ ^^'^^ ^'^^ ^^ ^^^ ^^^ ^^ *^ feoffcej, until the recovery, 
silk. 212. which is as a limitation of the ufe by them, and not t^ the 
Pou^i. 665. vouchee : it being alfo his own feoffment (wherein his wife can- 
i.Ttr.Rci^.235. not take by an immediate conveyance from her hufband),it ought 

always to fuppofe the gift and demife to be from -the feoffees. 

Vide Dyery gj.-*— And aithougli it was moved, that this, being after 

vcrdift, is holpen by the 18. Eliz. c. 14. which helps where there 
. is not any writ, and this is as if therp were not any writ ; yet 

ALL THE CpvKT. hcld, that tliis was not aided but where there 

is not any writ at all, or where there is a good writ, as here; 

but it warrants not the declaration, or if it bc an ill writ; they 

are not holp«n by the ftiitute. 

* c.„, ir. Buftiwood againft Pond. 

Michaelmas Term, 46. ^ j^i, £Ux, Roll jo^$. 

A prefcription nr^RESPASS of his beafts, taken aa. Nov. ^g.Ehx. The defen- 

k "c!^* jr-f ^ ^^^^ juftifies for damage feafant in his freehold. • The plaintiff 

lUt Ume la^j in ^®P^^^^» ^hat long time before the trcfpafs, tlie parfon of X). was 

ihctfedarAiioM,' feifcd of fucli land in fee, and of common for one hundred Jheef^ 

is bad open thereto appertaining ; KX\i'/\.:Novmhcr^ ^9. Eliz^ let that land and 

tiemurrcr, but common to thc plaiiuiff for vears ; and therefore put in his bcafls, 

^^vjfier vcr- ^^ y j^^ defendant traverlcrh the prefcription to thc common 

alledged ; and fo'iiid for thc pirjntiff. It was moved in arreft of 

ludginent, that this replication was not good ; for the plaintiff 

entitle^: himfelf by a Icp.fe, 4. November^ 39. Eli^. which was long 

^A time after thc trefpafs fuppofed in the declaration (queen Eliza- 

ir.'^ bcgini^.eth- her reign upon the 17. AWcw^tr, 1558.) and fo a 

departure from it and no title. — The whole Court held it to be 

ill, for which the defendant might have demurred : but in regard 

lie had paired that advantage, and had taken iffue, which is found 

tor the plaintiff, it is now helped by thc ftatute of jeofails, for it is 

but a mif-plcaJing ; and therefore adjudged for the plaintiff. 

At'cfcrip Ion Note. The jury found here, that thc parfon had common for 
for c-mcncn for onc huiuircd ihccp zv\d tx cctvs : and yet it was held per Curiam, 

ioc//'t/>,i»wtJi that the plaintiff had not failed in his prefcription alledged. • 

piovcd ihough 

the jury find it for^ioo fh-.ir>- and /I'v cows. Ante, 40^. 415. 546. 563, ^ 5. Co. 7S. BuU. N. P. 6c. 

1 ^ -'^41. Ccwp. 47. UMigl. 666. i^r'irm Rej,. 4.-.7, 



Michaelmas Tenn, 41. and 41. Eliz, In G, B. J 23 

Bnt it was faid by Wai^msley, if the jury had found, that he Boihwood 
had common for one hundred and twenty fticcp, and fo more of jp^'JJ^ 
the fame kind than he had alledged, be had failed* . . 1 

Watfon againjt Smith. Case 16. . 

A CTION for trover, and converfion of an obligation* — Walm* Trover docs not 
-^^ sLEY, Glanvile, and Kincsmil, held, that it lies not; for Jw for a bond, 
if he finds the obligation, and cancels it, trefpafs vi et armis lies j crTcVr. 262. 
for he deftroys the thing found ; and if he receive the money, and Cro! jac.637/ 
deliver the obligation to the obligor, accompt lies, and not this Hard. m. 
;jaion. Fide Regifier, 106, i.Saik.i26.a84, 

^ ,. 1 . /. TT ^ BuU.N.p.34. 

Cardmal againft rieiket. ^^^ 

^ leafier Term» 41 . EUx. Roll 251. 

Tr\EBT upon an obligation, conditioned, \i Robert Hejkei (who la debt on a 
'-*-^ was bound apprentice to the plaintiff) Ihould embezzle any of bond, condi. 
his mafter*s goods, and if within twenty days after notice thereof ^*°""* *o '^P»T, 
given to the defendant, and one Thomas Hc/ket, and proof thereof °|| "°'*^^^.^*'*' 
made unto them, the defendant fhould pay to the plaintiff fuch maxcmbcateu 
foms of money as the goods embezzled were worth, tliat then, the deciaratioo 
&c. The defendant, frotejlando that tlicre were not any of the '""ft *«w the 
plaintiff's goods embezzled, pro placito dicit^ there was not any P'*^* ^^^'* ^^ 
notice given to the defendant and Thomas Hejket. ^he phintifF^^^*';;^^^^^ 
replies, that fuch a day Robert Hejket became bound his apprentice, perfon within 
and that he ccpit extra pojfeffionem of the plaintiff fuch goods, and the operation of 
fold them to perfons unknown ; and that he gave notice thereof 5- EHz. €.4.5 
unto them, fnewing that paper unto them, under the apprentice's ^^^^^^^ 
own hand, wherein he confefleth it. And thereupon the defendant jfc • and that 
demurred, due'notice wa« 

First, Becaufe he doth not fliew, in what place he became given to the 
an apprentice, which is material. — And it was held to be a good ®**%o»"* 
exception per tot am Curiam. a. Saorid.4T2. 

Secondly, Becaufe he fhews not, that he was fuch a perfon 3- ^''l**- 53*. 
who might be an apprentice by the ftatute of 5. EUz. c. 4. — And this i_®'',^^^' ^^** 
was alfo held to be a material exception \ and although the ftatute ^ Terro'kc^^* 
is not pleaded, yet he Ihall take advantage thereof, becaufe it i^ b. R. >$7. lor, 
a general ftatute. 

Thirdly, That this notice and .proof were not fufliclent ; for 
it ought to have been given to them both together, and being 
given to one at one time, and to the other at anotlier time, it is Cro. Jac. jSi^ 
not fufficient ; and this proof alfo is not fufficient in itfelf, being 
only upon the apprentice's own confeiEon, who is not fide dignusi 

Wherefore, for thefe and other exceptions, it was adjudged 
for the defendant. Kide 7. Rich. 2, ** JSarr." 241. 33. JJi/i 1^, 
XQ. Hen. 4. how proof Ihall be made. 

The Queen trgawfi Drury. Cah is. 

TTPON dertiurrer, the cafe was, The Countcfs of KenthzA retained if a counters re. 
*^ two chaplains, and afterwards took a third chaplain ; and the tain two chap.* 
third obtained a licence and difpenfatlontorctainafccond benefice, lains, and aftcr- 
andtookit accordingly : and, Whether he were fuch a chaplain ^f'^* "^*^'" ^ 
as might obtain a plurality by the 21. Hen. 8. c. 13. becaufe the fQ^'^;^^^^^^ 
other two chaplains were not advanced ? was the queftion. hold a plurality 

by Ticence and difpcnfation, within the 21. Hen. 8. c. 13. untU one of ihe other two arc advanced. Poft, 
239. 4f Co. 89. b. ii3. Moor, 561. Hob. 155. 

Walm- 



1H 

Tlic QtrtiH 

Drurt. 

Wood's Inft, 39. 
2,Bl,Com.393, 



f «) A writ of 
rtTOT was 
brought) and 
th« judgment 

roft. 839. 
Case x9« 



An s^ron for 
nuticiouny pro- 
coring the plain- 
tiff to be in- 
dited of per- 
jury, muU fhcw 
before what 
Jatdg* tiic oath 
was taken \ that 
it was malici- 
ous; and tliathe 
was If-jrally 
mr^mitud upon a 
11. Cii. 2;. 1. 
1". T.Rep. jas- 



Michaelmas Term, 41 and 42, EKz, In C. ft. 

Walmsley held, that he was, becaufe the ftatutc rrftrains not 
the. number of chaplains which a countefs may have, but the 
number who are to have qualifications ; fo he who firft obtains 
the qualification to a benefice, Ihall retain it ; and the archbifhop, 
when he makes a difpenfation, examines not who is firfl retained, 
but who is moll worthy, and he wi)l difpenfc but with two : fo they 
who firft obtain a benefice by difpenfation fhall retain it, and. the 
retaining of his lord or countefs confers nothing upon him, but 
enables him only to tlie obtaining of a difpenfation : and fo ii 
14. £//2. DycTy 3TZ. 

And HEAKU^/erjeantf faid, that it was fo refolved in the queen's 
bench, in the cafe of Lady Bridges^ in an information. Where- 
fore, 6cc. 

And to that opinion Anderson and Kingsmil firft inclined. 

But Glanvile e contra : becaufe the ftatute fliews what per- 
fons fhall be enabled to take benefices by difpenfation, viz. the 
king's children, or thofe of his council, or the children of noble- 
men, &c. which is by rcafon of the dignity of their pcrfons ; lb of 
doctors or "batchelors of divinity, &c. which is by reafon of their 
dignities ; and then follows, that countefles, &c. fliall have two 
chaplains, who may obtain difpeufations, he. which is as much as 
to fay, that they arc perfons dignified to have this^ privilege, being 
chaplains to fuch noble perfons ; whereby it is nqccflarily to be 
intended* that none but they two are to have that dignity: and 
when fhe hath advanced two who have that privilege to take a 
fccond benefice when tliey will by difpenfation, that privilege can- 
not be taken from tliem as long as they remain' her chaplains ; 
and the retaining of a third is more than the ftatute allows, and 
therefore he fhall not have the benefit of tliat ftatute. And a pre- 
cedent of one Skijlings, Eajler Ttrm^ 34. £/fz. Roll *}Z%, which 
was adjudged in the point ; and another 24. Ellz. Roll 805. where 
ilTue was taken by rule of Court, tliat he was the firft chaplain 
retained; and Eajier Tcrm^ ^5. Eliz. Roll 1508. between Acher 
and Conquejl^ where tlie fame iffue \yas taken. 

Whereupon Anderson and Kingsmil changed their opinion, 
and agreed "with Glanvile, that this third chaplain was not to 
have benefit of this ftatute,, to obtain a difjpcnfation. — Wherefore 
it was adjudged for the queen (<?). 4. Co, og. b. 

Sherington agalnjl Ward. 

Trifti/j Term, ^i, Eliz, Roll ^^^, 
A CTION upon the cafe, in nature of a confpiracy, for pro- 
- -4^ curing him to be indi£led for perjury, pro eo quod^ in an aftion 
of debt in London^ betwixt one Johns and the defendant, and re- 
cites the a£lion, and iffue (but the a^ion in London was an a£tion 
upon the cafe) the faid plaintiff was produced as a witnefs, and 
fwarc falfly ; and (hews his oath, but he fhewed not that it was 
coram judlcc^ nor that it was coram jurator\ i^c. The defendant 
pleaded, that he was an illiterate man, and delivered all the pleading 
in London to the clerk to draw the indiftraent, who drew it, and 
therein miftook tlie plaint in London^ alledging it to bean aftlonof 
goc^ indhlmeni. Ante . i. Roll. Abr. no. Y«lv. 46. AUen, 91. 9 Co. 56. 
Sid. 15, Ctc. Jac. 131, 230. Cro. Car. j?6. 315. 419, Strangc,n4. 691. DougLais* 

' ' debt. 



Michaelmas Term, 4t. ind 42. £llz. In C. 6. 7^5 

iitbt.whcreas it was an a&ion upon the cafe, and delivered it to the Shi ring to* 
defendant, and read it lintohim, as truly drawn-, and he, believing S^'^p 
the fame, delivered it to the grand jury, and took his oath, quod^ ^^^* 
hilia fuit vera. And bccaufe it was falfe by reafon 6f this mifpriiion, 
the plaintiflTwas found not guilty \ and thereupon the plaintiff de- 
murred. — And the bar was held to be ill. But notwithftanding, it 
vras adjudged againft the plaintiff, that the declaration was not good,^ 
bccaiife he doth not Ihew that the oath was taken before forae Judge.' 
And then die iildiftment was vitious, and an aAion lay not : for this 
aAion is not iraintainable, but where a confpiracy lies' upon a con- 
fpiracy between two. — Secondly, They held, that this aftion lies 
not againft any. Who- prefers an indiftnient, and fwears it to be 
true; for it is for the aueen, and the common weal; and if it 
fhould be allowed, no inaidment would be preferred : fo one (hall Ante, h^* 
not be punilhed for preferring any bill into the ftar-chamber, by 
an aftion upon the cafe, although the matter be falfe, and con- 
tains great flander ; as it was ruled in the Earl of Lincoln's Cafe. 
The indiftment alfo was not Sufficients by reafon of this mif-pri- 
lion of the adion ; fo as the defendant might have pleaded nul ticl 
reccrd^ and he needed not to have faid not guilty, fo he never was 
legitimo modo acquietatus^ any perjury fuppoled. Wherefore it was 
adjudged of any for the defendant. 

Parker againjl Combleford. . Ca»i 10. 

Trinity 7 ermt^l.Eliz, R»U iS^g* 

npRESPASS for the taking of an horfe. The defendant juftifies, a cuftom to 
-^ as lord of the manor otD. by reafon of a cuftom there, that pay » he'»«^ 
the lords of the faid manor had ufed from time, whereof, &c. to ^f^J^'J"^]' 
have, after the death of every one dying within his manor, tlie beft Ig^^ho^ii^^" 
beaft of fuch a pcrfon fo dying, in name of an heriotj which is within ihc 
found within the manor, and to fcizc and retain them as his' pro- minor, is not 
per goods -, and alledgeth, tliat the* teftator of the plaintiff died, ^°^' 
within his manor, pofleffcd of that horfe, and therefore he feizcd *4« E^'^- 3- 
them : and it was hereupon demurred. ^^ Ed 

And after argument at the bar, refolved by Anphrson, Gl an- ^l^^^ ,!^' a. 
vtL£, and KiNGSMiL, for tlie plaintiff,' that this cuftom was Moor, 16. 
not good to bind a ftranger ; for confuetudo eft ex certa caufa ra- Dyer, aoo, a. 
tloHobili^tslc. and if it be not grounded upon fuch a realonable i-^o»Ab. 561. 
caufe, it is void. And here to have the beft beaft of any one ^^^{^ ^Vi. ' 
who dies within his manor, cannot have a lawful or reafon- 
blc beginning betwixt the lord and a ftranger : but betwixt the 
lord and his tenants, it is good ; for it may be intended to begin 
with their tenures, by their agreement, and by reafon thereof 
they had their lands upon rcafonable fines : but between lord and 
ftranger it cannot be, or be intended upon what caufe, or when 
it fhould begin ; but it is merely by extortion, and therefore like 
to the cafe 11. Hen. 7- pi' 14. and' 21. Hen. 7. pL 40. where the 
lord prefcribes to have 3I. of everv ftranger who breaks his pound; 
and ruled to be void, but to bind his tenants only : and fo is the 
reafon of the cafe in Doiforand Student^ where a lord prefcribes to 
have any purfe loft within his manor, it is void ; but the cafe in 
5. Hen. 7. prefcription to have the beafts of any ftranger which 
are lying upon his land all the day^ to fold upon his land in the 

ni£;ht, 



7^6 Michaelmas T^crm, 41 . and 42. Eliz. In C B. 

PARKtet night, is good ; becaufc the ftrajnger hath a quid pr^ quo. So the 

a^ainft ^^f^ ^f 2. Rich. 3. />/. 15. " C«/?om /or Swansy^, that the owner of 

CoMBLEFORD. ^Ij^-j^j^j ^^I1 j^^yg j^ gfound-bird, is good, for the eafe wjiich 

Co. 7. x;. ai» they have to make their nefts there. So here it is not grounded 

"upon any reafonable caufe, nor hath the ftranger any recompencc. 

Wherefore, &c. 

But Walmsley e contra : for it being a cuftom, and ufed from 
time whereof, &c. it ought to be maintained, if, by any wit or 
caufe to be imagined, it may be intended to have any lawful be- 
ginning ; for it is a cuflom which hath been allowed and ufed 
in many places : and it may be upon this reafon, for that he had 
his refidency within the manor at the time of his death, and had 
the help a^d comfort of the lord's tenants in his ficknefs, and 
after his death had tlieir attendance to his funeral; and therefore 
for the time which the lord loft in the fervice of .his tenants, as 
aifo for that he had a place to reft his bones, therefore it is rea- 
fonable, and like to the cafe of /wans ^ and a mortuary, allowed by 
cuftom, for they are not due of common right ; and he hath a quuJ 
pro quo by his refidency withm the manor at the time of his death. 
Wherefore, &c. 

Gl'anvile. If this be a general cuftom which goes to the 
whole county* it might be fo intended, and peradvcnturc woald 
be maintainable; but not as a private cuftom within the manor* 
Wherefore, notwithftanding, by the aflent of Walmsley, it was 
adjudged for the plaintiff. — ^And in Trinity Term, 42. £/iz. Roll ^6*, 
in the queen's bench error was brought of this judgment, and tlic 
error afligned in point of law. And the judgment- was affirmed. 

CA«E2t. ^ Emery againji 'Emtry. 

A« award of a T^EBT upon an obligation, conditioned for the performance of 
rcicafeof all ac- ^^ an award to be made, &c. The defendant pleaded, quod nul^ 
tiotii uttaiiiaJ^ lum fecit arhitr'ium. The plaintiff ftieweth an award, that tlie de* 
Anr"* "J'^''' fendant Ihould releafe all aftions, ut talis advifaret, &d. {a).— And 
5 "(S.^B*.' adjudged to be a void arbitrament to refer it to the aft of anotlicr (i)# 
Palm. 146. and that the defendant is not bound to perform it. 
Hard. 45, Sid. 258. («) See 8. Mod. 212. la. Mod. 129. lA, Ray. 123. 246. i.Feer. Will. 450. 
{h) References by rules at nifi prius made to a particular perfon orfuebubir as btjkali 
by 9. & 10. 'Will. 3. c. 15. are frequently name, i. Bac* Abr. 137* 

Casi m. Brook againft Wheeler. 

Hilary Term^ 41. Eliz, Roll 2041. 
7riuity Termy 41. Eli%, Roll 1764. 
A releafe of aH TPvEBT Upon an obligation. The defendant pleaded a releafe of 
ii£lionsexc(jt. U all aftions and demands, in bar. The plaintiff demands oyer 
implicdiyTx. thereof, and an exception of one bond was therein contained, 
cepts all fuits And the plaintiff replies, that that was the bond in fuit, and that 
and aftions the fum excepted, and the perfon mentioned to be excepted, were 
concerning It. all One. And thereupon the defendant demurred: for aftions 
l.d.Ray,a35. ^^j j-^j^^ being releafed, although he excepts the obligations, yet 
it ferves to no purpofe. — But the Court refolved, that the ob- 
ligation itfelf being excepted, all fuits and aftions concerning it 
are alfo excepted^ and that the defendant having pleaded a releafe 
generally, without any exception, and upon oyer demanded, a deed 
is (hewn without an exception. The plaintiff might have pleaded 
mn eft factum generally. Fide 39, Hen. 6. pi. 15. 



MIcl^i^^s Term^ 41. and 42. Eliz:. In C. B« 



Norwood againft Gxypc. Casx 23. 

Trinity Tirm^ 41. Elisc, Roll 1209* 
FNEBT upoil a finglc obligation for the payment of 81. The One deed can- 
^^ defendant pleaded, that after this obligation, he- and one J. S. "^^ dcremiinc • 
made an obligation unto the plaintiff of 14I. for the payment of ^^^^^P^^ 
7L at a day to come, in difchargc of^hc faid bond of 81. which the Amc, 304. 70^. 
plaintiff accepted in difcharge thereof. Whereupon the plaintiff 2. Bac. Abr, 
demurred. — And without argument it was adjudged for th^ plain- 24. 452. 
tiff J for one deed cannot determine a duty upon another deed* Cowp. 47. 

Whyte againjl Gerilh. 'Case 14. 

EqflerTerm^ j^l. EUz, -R^// 1557, 

jy EPLEVIN. Upon demurrer the cafe was. That ffljyte and ^. and s. levy 
'^ Ger'ijh levied a fine of the place where, fur conufance de droit a fine xoC. who 
C9me cfOy lie and the conufee rendered terumenta pradieia to Whyte ^ders to £.m 
in tail, refervinga rent, and by the fame fint cancej^t ^uid tcne^ renVandb"^* 
mfnta pradi^a intevr) remanebunt to Gerijh in fee, \i IVhyte died fan,^£nc,Uifi* 
without iffue of his bodv : and, Whether the reverfion and rent revcrfian is to 
hereby pafled, being all oy one fine without naming them?. was -^;»f -^.dita 
the queftion.— It was refolved, tliat the revcrfion and rent pafled, ^^j[|f^"^ "^^'^ 
being by fine, and that it Ihouid enure as fevcral fines. But if one , /in?^f*^e ^ 
makes a gift in tail rendering rent, remainder over in fee; tliis reycffion. 
being by deed, is a good refervation of the rent to the donor, and Pp^ 76^. 795^ 
the remainder only Ihall go to the ftrangcr : but it was faid to be ^ ^ 
othcrwife in a fine, and that fo is the courfe of , fines. Wherefore owcn, lak. * 
it was adjudged for the avowant. Fide 5. C. pojica 768. 793. Moor,' 57 5. 

9. And. 131. Pi^et on Rec. 139. %• Lev. 154. i. Wood's Con. 540* Bartiesy 216. Ld. Ka^. 402^ 
4. Rac. Abr. 3 19. 497. Cowp. 379. 

Lane againft Colman. Case 25, 

Trinity Ternty 41, Eliiz» Roll I417. 

'pVEBT lapon an obligation, conditioned, that \i Colman paid to ToHtbtoobond 
-*-^ Lane at fuch a place, within a month after demand, twxnty c*'"^"*'^** »o 
pounds, when and at fuch a time as tlie faid Lane had a fon that obr^^'hid*^ 
Ihall or can fpeak the lord's prayer ra Englijh, that then, &c. fon'S^tJ.iWon 
The defendant pleaded, that tlie laid Lane the plaintiff had not, ^«« fpcak the 
after the obligation made, any fon qui loquutus fuit^ aut loqul to- *°''*** P">^^ » 
tuit the lord's prayer, &c. Jl^e plaintiff reolics, that fuch a day he l^l^\^' ^? 
had one H. fiUum fuum, qui potuit loqui the lord's prayer in Englijhy ^liuu/^Jtttt 
&c. and alledgctli a demand of the twenty pounds, &c. The de- iord's prayer, 
fendant demurs, becaufe this allegation, quid habuit fiHuniy qui loqui *• 8;"o**» 
potuit y Is^c'is not fufficient for an iffue to be taken, and tried up- s. C.Owen 
on it ; for that it is but a power, and not reduced to an aft, and ia7« 
it is not triable, in regard tlie power is fccrct, and cannot be 
known, if it never were reduced to aft. — But the whole Court 
lield it to be a good replication, and a good iffue, and well triable ; 
for the condition being in the disjunftive, he may alledge the 
one or the other at his cleftlon ; and his power of Ipeaking, &:c. 
Ihall be proved upon the evidence by thofe who had heard him 
recite it : butthc moft apt and proper iffue had been, th^t he had 
a fon qui hquutus fuit, and fo have tried a, thing aftuallv done. 

An4 



?^8 Michaelmas Term, 4^. and 42. £iiz. tn t. 8* 

Lan« And a cafe was cited, that in a quarf impedit, abifhop pleaded a 
Qo^MA ^^f^f^^y for that the prefentce ta a church in fVaies (where all the 
OLMAH. parilhioners were fVel/hmen) could not fpeak any fVe{/h ; and iffuc 
was taken, that the prefentce could fpeak fVef/h j and upon de- 
murrer, it was adjudged to be a good iflue. Anotlier precedent 
Was cited in an information by Broughton v. Price. Upon mainte- 
nance in pleading of a caufe, he pleaded, thit hei vf^periius Ugl- 
busy i^c. and fo juftifies. And adjudged upon.demilrrer to Be rto 
plea ; for the jury cannot try whether he be perltus legibus or not. 
But he ought to have pleaded, that he had been a {Indent in fuch 
an inn of court, and called to be an utter barrifter. 



Case i6. 



Hampton againjl Bartholomew*. 

Trinity Term, 41. Eliz. Roll I514. 



tfanadminif. "PiEBT tipon an obligation againft tlie defendant as adminif'- 
traror plead a X^ trator of John Bartbolomezv. The defendant pleaded a rc- 
lu(^°Hibi/lrlf. CO very in debt againft him in London, et quod nihilj i^c. prater ad 
ttr^ Sfr. the fatisfaciendum^ that judgment, &Ci I'he plaintiff replies, confef- 
piaimiffmay fing the recovery ; but Ihews^ that before this action brought, the 
ripiy SATIS- plaintiff there acknowledged fatisfadion upon record, There- 
whhou°(hcw. ^P®^ ^^^ defendant demurred ; becaufe he doth not alledge, that 
ing that judg-" ^^^ judgment is entered upon tliat confeflion ; nor tliat judg- 
ihenc was en- ment was entered, quod defendens eat Jlne die ; nor that he had 
tcred,orthat goods over and befides thofe which fatisfied the recovery .-r-k 
^*^^r*r ff'^^* was adjudged for the plaintiff; for, fatisfaftion being acknow- 
a///«! * ^^ ledgcd, he cannot plead that he had nothing, &c. becaufe U>« 
Sed videDoug. judgment is difcharged by this fatisfadlion acknowledged without 
las, 452 1045s. any otlier judgment* 

\i T. Rep. 690. 

Casi 27. lienfy againfi Richarclfoni 

Trinity Term, 41. i6//«. Roll 140. 
Plwding. t7 JECTIONE FIRM-ffi. The defendant pleaded, tfcat the leflor 

-*-' of the plaintiff was co|)yhoIder in fee of that land, parcel of the 
manor of i7. Which is in the queen's poffeflioh, by reafon of tl>e 
wardfhip of one S. and that the leflor lurrendcted to the ufc of the 
^ defendant in fee, who was admitted Jtccordingly ; &nd that after- 
wards the leftor Entered upoii him, and expelled him, tLwA Itt it to 
the plaintiff, proui iri the declaration, and the defendant re-en- 
tered, as lawfully he miglit, &c. Hereupon the plaintiff demurred. 
' — And it wits adjudged for the plaintiff, that the plea was ill ; for 
there is not iiny confefjion and avbidance of the leafe alledged by the 
plaintiff; f6r the adion it broiight, as of a leafe of land at the 
common law : and this pleat proves, that the land is copyhold 
land, and a copyholder cannot ftiakfc a leafe for years, unlefs by 
^Ub**!^^* cuftom, or by licence of his lord. Which oticht fpecifclly to be 
% b. en. 113* ^g^j^ . j^j^j jjjp defendant here hath pleaded a kafe by an intruder 
upon the qteen's poffeffionj which is riot good ; nor any cori- 
fefJion of the Icafc alledged. ^\'her€fore it was adjudged ior the 
plaintiff 

Shaw 



Michaelmas Term, 41. and 42. EHz. In C. B« 7^9 

Shaw againjl Shenvood. ' ^^'^ **• 

Eaflcr Ternit J^\. Eliz. Roll 2^0^% 
T^KBT as adminiftrator to Robert Shaw for 20I. and counts, that What form of 
-■^ the defendant, by his bill obligatory, here (hewn in court, ][^^^'^^^^^^^^ 
acknowledged fe reccpijji 20I. of one Thomas Pretty^ to the ufe of "Jj^gJJjQ^ *" 
the inteilatc, /o/zw/^/ttw at fuch a time, quod viderctur opportunum pro ^^^ ^^^ 
projicuo iRobcrt Shaw X\it mttH^lc, And (hews, that at fuch time ytiv/ j./ * 
'ojdehatur to Robert Shaw the inteftate opportunum to have the Owcd, 117. 
laid money, and he demanded it, &c. 1 he defendant demands Dyer, 350. 
oyer of the bill, which was in this manner: " this bill 3'J-«^- ^39- 
*' WITNESSETH, that I Robert Sherwood have received of Thomas'^ ^^^^ 

** Pretty ^ol. to the ufe of Robert Shaw^ and Jane Shaw his iiflcr, 
** children of John Shaw dcceafed, equally to be divided between 
** them ; which fura I confcfs to have received to the ufes above- 
** faid, and the fame to repay ag^in at fuch a time, as fliall be 
•* thought beft for the profit of the faid Robert Shaw and Jane 
•• Shaw ; which fum of 40I. is the full bequeft of their father. 
** In witness, &c." The defendant demanded judgment of the 
writ and count, as not being warranted by tliis bill ; and it was 
thereupon demurred. 

First, Whether this fliould be faid to be a bill obligatory? 
bccaufc the words arc qua/im nature of an acquittance, tcllifying 
a receipt of money, — But the Court held it to be a good bill, 
and fhall be intended to be delivered to the ufe of the plaintiff; 
for fo the plaintiff hath fuppofcd by his declaration, and the de- 
fendant hath admitted it; otherwife he ought to have pleaded mn 
e/I fa^umy t^c, ; as alfo becaufe debt well lies for it, and notac- 
compt upon the lending. 

Secondly, Whether this re-payment ought to be made ofwow^thetvotd 
this 40I. to Robert Shaw and Jane Shaw, for whofe ufe it was re- " r«/»<j/' fliiil 
ccived, or to Thorrms Pretty who delivered it? — Aqd it was- held bcccniirucd. 
that it (hould be to Robert Shaw and Jane Shaw. For although the i.Rcll.Abr.S;;. 
word ** repay,", is properly to him who delivered it, yet by the 2,Ron.Abr.i43. 
words, "to have received to the ufe, and to be repayed when it "•^^'^'* 3'o. 
** Ihall be thought bcfl for tlicir profit, &c.*' fhews the intent to 
be, that it Ihall be paid to themfclves, when they require it. 

Thirdly, If fo, then. Whether this.werc a joint, or fe vera I A bond of 
debt of 20I. to both of them ? For if it were joint, it f hould u^ouY-and^* 
furvive; and the adminiftrator of Robert Shaw could not have it. f^ujl'vtohedi^ 
And if they were alive, they ought to join in the adion ; and it vUed^cnM^.M. 
cannot be a bill for the 2oi. only.— But it was refolved, that it f^^^crai debt of 
Ibould be feveral bills to them In one deed, and they Ihould be ^^^jj^^'^**^ ^^ 
divided debts, by reafon of the words, ** equally to be divided, ^^ i\ujo%, ' ^ 
*• &c.*' And it was afterwards adjudged for the plaintiff, that he veiv. 23. ' 

Ihould recover his debt and damages. — Note, this judgment ; Ld. Ray. 615% 
how tliat the pica is to the writ, and count. Cowp, 660, 

Hawkins agalnjl Miklixiviy. CAi«a9. 

Michaelmas Term, 41. W 42. A //z. Roll 1506. 

ACTION upon the cafe againft the defendant. For that upon Ana^iotionth* 
a capias direftcd to hini againft 7. S, he, being fheriff of c»^c lies »ga»nft 
EJfex, direaed his warrant to fuch a bailiff of a liberty, to arreft the '.^^^^I'^yX 
faid 7. 5. who arreftcd him accordingly ; and that the defendant, /^t^^^^f/afiJi- 
well Knowing thereof, had notwiihftanding, upon the day of re- thcba.iff of 4 
liberty b> virtu? of his Warrant ha* arrdtsd the d?fcn<!ant. '^'^' 5**« 
CRO, EtX2» PART it^ C c c turn, 



73^ Michaelmas Tcrm^ 41. and 42. Eliz, In C. S. 

Hawkins turn, returned a non eft inventus. And upon this count the dtf- 
againjl fendant demurred. — And it was refolved by the whole Court, 

MiLOMAY. ji^^j ^YiQ writ well lay for this matter- And Anderson faid, if 
i3.;f«.7. pi.i. the IherifF in this cafe had returned that he had fent unto die 
^•^^^•♦'P|'^* bailiff of the liberty, &c. who had given him anlwer that he had 
isi/flrt^eipi.t. arrcftcd the body, it had beeil good *, and the fheriff Ihould have 
X. R. Ab. 563. been difchargcd, and procefs fhould have iflued againft the 
pi. 19' bailiffof the lil)erty to bring in the body. But here, in the prin- 

1. Kcb. 591. ^jpai cafe, the writ abated by the death of the plaintiff brforc 

a Tcr.Rep. 153, • * " ■ ^— — ^w^—— ^m^m 

Ca,» I, Ireland againft Goodale. 

Michaelmas Term, 41, l5f 42.. Eliz.'^In the Exchequer Chamber. 

ToTay, «*/wf7/ ITRROR of a judgment given in the queen's bench, HilL 42.Eliz* 

"^'pfvebimfvr- ^ in an aftion for words againft Goodale. The plaintiff there 

•'fvfatn," im- declared^ ^* Whereas there was a fuit between Ireland and one J, S. 

t^^a" Vorfwom • ^^ ^^^ queen's bench, which was tried by nifiprius, and theplamtiff 

and to add, ' ^^^ produced and fworn als a witncfs before Sir John Poj>bam^ l^c* 

^bef9rtfucba that the defendant fpakc thefe words of the plaintiff! to ftran- 

'"7''«tV*i» gers, ** I will prove him," innuendo //?^^/^/w//^r " forfworni*' 

kntamounc to INNUENDO before Sir John Popham, Chief Juflice, " and it Ihall 

Srtd! ^^ *' ^o^ P^ 20L but I will make his ears afraid." After vcrdift it 

>wite, a^, was adjudged for the plaintiff, and now afligned for error, that 

the words are not aftionable. — But all the Justices and 

Barons held, that the a£tion was well brought; becaufc the 

words are very fcandalous. To fay that he will prove him for- 

fworn^ ftroncly imports, that he amrmed that he was foffworn j 

for otherwile he cannot prove it. And in faying that he was 

forfworn before fuch a Judge^ is tantamount as if ha had affirmedi 

that he w^z^^ perjured. 

f kadinf. A SECOND Error afligncd was, Bccaufe the defendant pleads 2 

jnftification ; and the plaintiff replies de injuriA fui propria^ bfc. 

And the jury found that the defendant fpake tiie words, modo ek 

formoy prout the plaintiff had declared, which is not a good vcr- 

dift upon thiii ifliie ; for the juftiiication is part of the iffue.— 

And a greater part of the Judges and Barons conceived it to 

be an error. But bccaufe it was informed, that the record waj 

not well certified, they would advife thereof. 

?*•*»• Cockeyn and J. S. againft Dame Hawkins* 

A writ of error 15* R^O^* For tliat in debt in the queen's bench hj Damt 
may be brought *^ Hawkins againft one Anion^ the plaintiffs in the writ of 
l.uhc exchequer error were mainpernors^ where the faid D. Hawkins recovered 
shambcrupona againft Jnton ; and upon two fcire facias^ againft the mainpernors^ 
jnr^fjwll" had judgment to recover againft them. Tlwsy brought error; 
Viga'nft bliU ^^^^ affigncd for error, that there was not any capias adfatisfacien- 
♦'oft. 733. dum awarded againft the principal, before thefe fare facias . 
Vdv. 157. ^"^ ^^ ^^"^ moved by Snio, that this writ of error lay not by the 
c"o. lac. 171. 27. BU%. c. 8.: for it gives not error upon a judgment in ^fcirf 
Cro. Cfcr. 3o«. facias ; for the ftatute gives a writ of error to the parties in the 
*8^- aftion, and not to the mainpernors. — But it was held by all the 

Jones, 305. * 

t^Htrtt, i^Klftdf Cro. Car* 464. L4. Raym. ig, Andr. 287, lira, iw2< 3« Bac« Abr.aia. ufatffi. 

JUDGSI 



• Michaelmas Term, 41 • and 42. Eliz, IfiC. S. ^31 

Judges and Bakons (except Periam and Glanvile) that a Coc^rtk, &c, 
writ of error well lies for the mainpernors ; for this fuit againft «f«»Y' 
them, is a fuit within the intent of the 27. Eliz. c. 8. and is in ^^"^^^'^ 
nature of an aftion of debt. For, as Littleton is, a relcafe of all Ante, 581, 
adions is a bar. Wherefore being certified upon a writ of ^•^^ S^S* ^ 
£minutionf that a capias ad fatis faciendum had been oefore awarded, 
the judgment was amrmed. 

Price's Cafe. Cas« j. 

pRROR of a judgment in the queen^s bench. Tlie error affign- Thcwccheqjvr 
^ ed was, Becaufe one of the parties was dead before the judg- ^^Tt to b^*** 
juent ; and it was moved. Whether they had authority to examine and f««r#ifit 
fuch errors ? — ^And it was held by all the Judges and Barons, can examine 
tliat they had : and if it were denied, it fhould be tried by a jury *^°" '"^ f*^- 
in the exchequer chamber. — ^And it was moved, that tlie party ^'^* J**^' ^^^ 
being in execution might be bailed. — But it was held, that they ('») See Cro. 
had not any authority to do it ; for they have authority only ad^^^^ s^iot. 
examinandum errores (<?)• 2. LeTVs. 

I. Vent. 107. 1. Mod. T94. thi: it cannoU 
But fee 3* Jae* t. e;8. 4« Hr;. W. ie M.c. 4. 13. Car. 1. c* 9, Impey, 532. 
ft.Crorop« 345* and i* Bac. Abr* 113.11 m//x, 

Harpool againfi Miller. Cas« 4.' 

Hilary Term^ 38. £//«. Roll 363; 

pRROR brought and affigned ; For that an aftion upon tlie «>«.ifanattor- 
. ■*^ cafe, upon an ajjumpftt brought againft Harpool by bill, being ney «//arjr< ca« 
an attorney in the queen's bench, and not in cuftodid marefchalli ; ^^^^^^^f^ 
he being an attorney at large, and not any of the clerks of that Tn king°f boKfc. 
court ; for fuch an attorney is not upon record there, and can- ^g ^^^ 
not fue, nor be fued there : and divers precedents were fhewnj i.venuioo/i^ 
that where they were fued or did fue by privilege, it was as clerks Hob. 177/ 
of the chief preignotary, or other clerks of other offices, and not Ld. Ray. 34a. 
otherwifc; and for that, vide i. Hen, 7. pi 12. And it was faid, |33' 
thatthw was not any matter concerning the jurifdiftion of the ^^I'^^.j''^^' 
Court. — And divers of the Juftices held it to be error. Dougi/314. ' 

The SECOND Error afligned was, Becaufe the plaintiff declares in ^. if it \% not 
an affiimpjit^ Whereas there was a fuit in the ft ar-chamber, between ^Mint«^ftc» for 
one Coldwel and the faid Afillcr the plaintiff, wherein Harpool vr^^ *** attorney to 
folicitor for him ; tliat Harpcol, the defendant, in confideration "ucm hal^icfs* 
of a quart of wine, affuraed to fave him harmlefsfrom all cofts fromcofts. 
and charges which fhould be awarded ac^alnft him in the faid fuit. ^.^ 
And alledgeth infaiio^ that the faid caufe was afterwards difmifled, "•°'*'H7>*«U 
and that 81. cofts were then adjudged againft iW/V/rr tlie plaintiff"; and 
that thereupon ^fubpctna was awarded to pay thefe cofts, which he 
had paid, &c. It was moved, tliat this is a void confideration ; for it 
is maintenance, and therefore unlawful.— And of tliis opinion was 
Walmsley, and fome other of t!ie Juftices. — But Andersopi 
and Periam held, that it is not any maintenance; for he doth 
not aflume to expend the cofts in fuit, but to fave him harmlefs 
from thofe which (hall be awarded, after that they be award- 
ed; which may be lawful. Wherefore, &c. — But the caufe was 
afterwards compounded, in regard the privilege of the queen's 
bench fliould not be drawn in queftion. 

C c c 3 William 



73* Michaelmas Tcntij 41. and 42. Eliz* In C. Si 

ca8i 5. William Forth agawft Thomas Harrifon. 

Trinity Term, 40. Eisz. Roil 359. 

To debt on a TaEBT on a bond of 200I. dated 13. September^ 39. ERx. con- 
^f>^y^'' -L^ ditioned for the payment of lool. at Ins lioufe in Cheapfide^ on 
^^^^Tm^x^ti^^ ^t' January next eufuing the date hereof. The defendant 
at the piaintifTi pleaded, that he, on the 21. January then next following the date 
houfeinC^a^- of the condition of the obligation aforefaid, paid the faid lOol. at 
/*, A >t.KA of ^jig plaintiff's houfc in Cheapfide^ fccundumformam et effeRum con<- 

#»Miv" without It was thereupon demurred in law, Becaufc there is not any- 
mentioning the pariih or ward mentioned, where the faid honfe ihould be; fo that 
pariih or ward ,f jflue bc taken, there cannot be any venue. — Secondly, Becauffr 
v^mated"?8 he.alledgeth payment on the 21. January, poft datum condithnls, &fr. 
bad' "** ' " ^^^ the condition hath not any date. — And for thefe caufcs the 
Ante, 160. plea was adjudged to be ill, and the plaintiff recovered. 

TroU AbVxi** Error thereof was brought ; and the error was affigncd 

Rtaunf. 154. ' in matter of law, and argued divers times before the Judges and 

Cro. jac. X50. Barons ; and all of them, except one, agreed, that the fecond 

307- exception was not material ; for the condition and obligation afrc 

*• Hawk. »66. |j^^ Q^e deed, and tlie date of the one is the date of the otlier ; 

and when he pleads, that he paid xtfecundum formam conditlontSy it 

Ihall be intended to be well enough f oft datum obllgatioms i and the 

other is void. But for the firfl exception, 

Anderson, Savell, and Gl anvile, held the plea to bc good 
enough ; for the payment alledged apud London^ in his houfe at 
Cheapjidc, is good ; and it is not of nccefliry to alledge a parifh or 
a ward, no more than where a thing is alledged to bc at Brtjhw 
or any other city ; and all the writs of right and pracite*s are of 
amefluagc inLoiidon^ withoutnaming any parifh or ward. Where- 
fore, &c. 

But Periam, Clerk, Walmsley, and Kingsmil, held the 
plea to be ill for this caufe : for it ought of ncccflity to be alledged 
in what parifh or ward the houfe is, for the trial. As where pay- 
ment is alledged at his houfe in any county, it ouglit to bc allet^- 
cd in what vill it is, for the venue to have a trial. And fo is 
7. Hen, 6. pL 36. that a parifh and ward in London, arc as a 
vill or hamlet ni other counties ; and what hath been always ufed, 
and obfcrved, is to be taken for law. And of thofe parifnes and 
wards, the Court may well take conufance : and tlie prothonotarv 
of the common pleas, and Kemp, fecondary of the queen s 
bench, certified, that their courfe always hath been to plead any aA 
done in London, to bc done at fuch a parifh and ward, for the 
v€niie, i^c. And for this defeft, they held the plea to be ill ; and 
that the firft judgment ought to be affirmed ; and the judgment 
%as affirmed. And afterwards {ut audivi) Savell agreed to that 
opinioui &c« 

Price 



Michaelmas Term, 41 . and 4^, Eljz, In'C. S. 713 

Price againft Price. Ctnt^m 

E after Term, 41. Eliz. Roll 199. 

ERROR by tli^ bail ; For tliat judgment was given againft him AJcinfucht 
upon z/cif'e faclasj where no capias was awarded' againft the againft bail it 
principal before xhtfcire facias awarded againft him.— And it was *>a<^^here no 
held, that the writ of error well lay in this cafe for the bail ; and awirtJd"g*^ft 
the judgment in the fc'ire facias was reverfcd, And tlic liko writ the princifwu 
wgs allowed between CqUs and Bahin^ton, Ante, 597. 730, 



Ccc3 



'3* Hilary Term. 

42. £liz. In the Queen's Beach» 



Sir John Popham, Knt. Chief Jujlice. 

Sir Edward Fenner, Knt. 1 

Sir Francis Gawdy, Knt. > JuJIicesr 

John Clench, Efq. J 

Sir Edward Coke, Knt. Attorney General. 

Sir Thomas Fleming, Knt. So^citor Genfral^ 



A guardian by rTT^HE cafc was HOW moved again.— rPoPH AM held, that if the 
nurture cannot I devife had been that he Ihould make Icafcs in the infant's 



Caie u Pigot againft Garnifh, 

Ante^ 678. 

T'- 

fants land. Su ^afe of the infant, who cannot make any ; and none may author 
«ifi#, 678.*««i rize any to make leafes in the name of another, but of him in 
ibecaftstUn whofe namc the leafes ought to be made : but it fecmeth, as the 
*'"*'• devife is in this cafe, that he is but a guj^r^ian for nurture, and 

^B^' ^^r* ^^* ^^ ^^^ ^^ make any leafe at his pleafurc ; for he might then make 
PowdaiDM!' ^^^"^ for ^^ hundred years : and here he cannot make but leafes 
E90). * at will. — ^And ofthatopinipnwcreFENNKRandCLENCH. Where- 

fore, abfente GawdY, it w^ adjudged fpr the plaintiff, that th^ 
Icafc was void, 

caii 9« Bereblock agawjl Read, 

/n executor or T-^EMURRER, The cafe was, That Berehlock having rcco- 
ouSlMomTa vercd in debt in the common pleas, a writ of error was 

debt due by brought; and whilft it was depending he acknowledged a ftatute» 
Judgment, be- and died. Adminiftration was committed to the defendant, ^^hq 
foreadebtapon brought a new writ of error ; and whilft it was depending, cxecu- 
a ftatute^orre- ^j^,^ ^^^ j-^^j upon the ftatute ; and afterwards the judgment af- 
anolderdatc; firmed in ^. fare facias upon that judgment. The defendant pleaded 
but if the good* all this matter ; and that at the day of this /r/V^/ar/flj brought, he 
9xt taken oa^ had not alia bona than thofe goods delivered to the conufcc. 
TThM hT^ Thereupon the plaintiff demurred. 

Sad* not «/i>a Tanfield, for the flamtiff^ moved, that this was not any plea 
aJiaiMuuiftraur. for the matter thereof ; for the judgment being firft, and the ad- 
AntCjsS^. miniftrator having conufancc tin reof, as he had by bringing tl)e 
Poft. 8a*. y^j^ii of efror, it ought to be firft fatisfied ; and although the goods 
i.RoJl.Alj.926. '^'^''^ taken in execution upon the ftatute, yet the defendant (al- 
Co. Ent. 157. though he could not have nleaded it, bccaufc he had not day to 
Yclv. 29. plead) might have remedy for it by audita querela^ and fo help him- 

j.Vtm. *94. f^if J and the firft judgment is always to be firft fatisfied ; as 
l*Co.6o. a. 2. Hen. 4. pi. 21. 6. ^ '7. £/;s. Dyer^ 232, and Dyer^ 80. The plea 
5.00. 28*. Si, alfo is not good for the form ; for he pleads an' extent of the goods, 

». Leon. 328. 1. Sid. »T. Vaugli. 04, Salk. So. Ld. Raym. 47. a. Bac. Ab. 433. Wtnt. 20x. 
^VcnMS^, 3. Peer. Will. 402. C^f.tcra. Tal.2j7« Doojl. 4^2. 2. Term Kcp, 690* 

an(^ 



Hilary Term, 42. Eliz. In B. R. 73S 

ind delivered to the conufee ; and he doth not hy per facramentumj B«RrBLoc< 
f^c, as it ought to be> as Dyer^ 100. is. He pleads alfoi that he had ^^'J;^. 
not aliqua alia bona prater^ 6fc. which is repugnant to the pjea after, 
that the Iheriff had taken all the goods, fo he had hot any goods at Ante, 5S4, 
all. Fide for this 4. Edw. 4. pL 13. ao. Hen. 7. pi. zy. Where- 
fore, &c. 

But againft that itwas moved, that this plea was good for the mat- 
ter; for both are debts upon record, although the one he puifne to 
the other : for ^2ipuifne Mgatlon may be paid before an eigne^ fo it 
is of records. In 20. EH%. TruxJIon v. Ferney^ it was ruled, that a 
ftatutelhall be paid before an obligation; for it is a debt of record : 
and here he could not have time to diiturb the execution ; and 
therefore it is not reafon but, that he flaould be helped by pleading 
it here : and it (hall not be faid to be a devajiavit^ when there is 
not any fault in him. And although it was faid that he might 
have an audila querela to help him, that is but a fmall remedy, that 
he fliould anfwer of his own proper goods, and be put to feek hi* 
remedy againft a ftranger, who peradventure is not able to fatisfy 
him, which would be mifchievous to an executor. Wherefore, &c. 

Fenner held the plea to be good ; for, although where two 
Judgments are againft a teftator, the executor ought firft to fatisfy 
the firft judgment, for it may be pleaded in bar againft the other ; 
yet it is not fo for a ftatute ; for the execution thereof is againft 
the executor without anfwer ; and therefore it is not zny devajiavlt ^ , 
in him, in regard he could not have prevented it : and an audita 
querela lies not, becaufe the conufee haih not done any aft to dif- 
charge the execution. Wherefore, &c.. 

PoPHAM held, that an audita querela lies, becaufe the fta- 
tute happened not to be put in execution againft the admini- 
ftrator; and if he will notluc it, it is his own default, and he fhnll 
be charged : and it is clear, that the execution irpon the judgment 
ought to be before the execution upon the ftatute : and there is not 
any default in the plaintiff, and he hath not otherwifc any remedy ; 
and if he will not help himfelf when he may, it is reafon he fliould 
be prejudiced.— As touching the exception of per facr amentum pro^ 
horumy PoPHAM, Gawdy, and Fenner, held the plea to be ill. 
But as to the matter, Gawpy fpake not. Et adjoumatur (a). {«) This cafo 
vastnovcd feveral limcs; but In Mich, Term, 45. Zlit. upon conference with the Judges, *f Scrjtanw inn^ 
the plea was held to be good, and judgment given for the defendant. Poit 82 a, 

Ponifreit againft Brownfal. Casi i^. 

T^EBT upon the 32. Hen. 8. c. 9. and demands lol. for himfelf iti$ embracery 
and the queen; and alledgeth, liow one Jnn Rejionhvoxx^it an toforiclrajoror 
aftion uj)on the cafe in this court, and had judgment to recover, ^ ^P^^'^*" '^^^^^ 
and a writ of enquiry of damages awarded, and the flierifFimpan- "^l^^"" ^ "^^ ' 
nclled a jury to enquire ; and the defendant, at Crompton^ in the ***' ^' 
county of Cambridge^ embraced the jurors of the fame inqueft, &c. ^' Rvni'SSJ* 
The defendant pleaded non debet. The jury found a fpecial ver- 
dift, that the defendant in the county ot Bedford folicited the ju- 
rors to appear, and fhewed unto tliem a precedent, where in fuch a 
cafe great damages were given, Et fi, fa*^.— Godfrey, for the 
flaintiff^ moved, that this was direft maintenance ; for one who is 
not learned in the law ought not to meddle to give or fliew an evi- 
dwcc tcrtjie^ jurors, a$ appears 22. Hen. 6, j>L 5. 28. Hen. 6, //. 6. 

Ccc4 acut 



73^ Hilary Term, 42. EHz. In B. R. 

PoMF^ixT and embracery is the labouring of a jury to- appear, as 13. Hot. 4« 

^Z^^»fi pi i6.is; etvide^T.Hen. 6. ^i. 21. what is embracery. Wherefore, jtc. 
Brow MS A La 

The court «fo/'- But it was moved, in regard it appears that this a£lion was 
fcioytiW abate a j^q^ brought in the proper county where the faft was done (which 
f"xtTcfr°to' ^^ ^^^^^^ ^^ ^ ^^ ^^^ countv. of Bedford), the bill ought to 
bcbrcu^icht inan ^t)^^c by the 31. Eliz c. 5. [a] — And of tliat opinion was the 
improper coun- WHOLE CouRT : fo( the llatute is intbc negative, '* that aftionj 
ty. " upon penal ftatutes popular fliall not be brought out of their 

Ante, 645. it proper county." And when it appears to the Court that the plain- 
a. And. iSo. tiff had brought his aftion againu the form .thereof, although the 
^ 'h^ If' V^* defendant did not take any advantage thereof by plea, the bill ought 

1. s.»^k! 37v^ ^^ ^^ abated. Wherefore it was adjudged, ^uod quercns nihil capiat 
a. Term Rep. per billam, 

»74. and fee 3. Term Rep 365, (rt) Sec 21. Jac. i. c, 4. 

Gasf. 4. Auftcn againjl Pigot. 

In prohibition, pROHIBlTION for fuing for tithes ; wherein it was fuggcftcdj^ 

the fuggcftion ^ that Plgoty proprietor of the reftory of B. wherein thofe land* 

rccd not be -jj-c, and all his prcdeceffors, have had twenty acres of pailure, and 
it'isfumcw^it if ^"^^^^^*' ^'^^^ containing twenty acres of wood, in fatisfaftion of 

it apj>c^ that tithes ; and his witnellcs being examined according to the 2. Edw, 6. 

the Court h:is c. 1 3. proved, thut he had the twenty acres of pafture, but not of 

not jurifdidion. ^vood. 

Tolir^ 5^^' Coke, J/torney General, prayed confultation ; for the fuggcftion 

*'* is not fufficient, that he had the clofe, &c. without Ihewing of what 

Moor 9 J T. eftate, or how. The fuggcftion alfo is not proved as it is alledged. 

Ydv. 55! ^ '' ^"^ ^^^^ '^^^^ Court held it to be well enough ; for it is fuf- 

Paim. 377. ficient that he had it, and the pther cannot Ihew how. And fo 

Ncy, 28 44. Dr. Cotton s Cafe was ruled accordingly. The proof alfo in apro- 

Heii. 100. no. liibition ought not to be foprecife. But if it appears that the court 

* sa^«ln<?''i'^ chriflian ought not to hold plea thereof, it fulhccth: therefore, if 

,' Vent. 107. there be a prefcription, that the parfon holds an l^undred acres of 

2. Stra. 997. land in fatisfaftion of tithes, and the proofs be that he holdeth lixty 
Cowp. 330. acres only in fatisfaftion of them, it is well enough {a). So here 
^^'t^'^'r the fubftance IS proved, that he held land in fatisfaftion, &c, 
*' *'*^"^ ^^* Wherefore it was agreed that the plaintiff fliould declare (^), and 

u)4 Mod.151. that the defendant fhould plead to iffue. Vide Dyer, iji, 
J. Lev. 125. Ray. 88. i. Bl. Rep. 81. (^) Ante, 587. Hob. 42. Cro. Jac. 501. 

Case 5. Siblcv cgainjl Crawley. 

If a confultation PROHIBITION for tithes. The defendant fliews, that before 
uinJd'^ "ai'o^n ' . ^''^^ ^^"^^ ^^^ plaintiff hsid fued in chancery to ft ay it by En^^li/h 
proceedings by l^^^'' ^'^"^^ afterwards brought a prohibition there, and a confultation 
bill in equity, a v/as there granted ; and that this prohibition is for the fame caufe, 
iccond prohibi- -^72. for niwittcr of difcharge : wherefore he prayed a confultation 
\^^^ T7 ^ upon the 50. Edzv, 3. c. 4. which is, that confultation being once 
Ante, 177. ^^'^y FT^*"i^'^^» ^berc Ihall not be another prohibition. — But the 
Cs. TRT held, that this confultation wa*? not dulygrantcd according 
2! Brownh^e ^^ ^^^^ intent of the ftatnte, becaufe the prohibition was not duly 
247. * ' grantable there, and fo out of the ftatute ; for it was not duly 
1. Leon no, granted upon an Englifh bill.— And by Popham, the ftatute is to 

3. r.rif^. 182. be intended where the confultation is granted upon the examina- 
Yciv^^'^^ ^'^^^ tion of the matter, and aot for the infufficiency of the proceedings. 
4.Bac.Ab.249. S^i^^f^i^ concejfum. Whereupon it was awarded, that tlie prohi- 
bition Ihould ftand, ' ' ' - 

Rudde 



I 



Hilary Term, 42, Eliz. In B. R. 73T 

Rudde againjl Tucker, Ca« 6. 

Michaelmas Terniy 36. ^ 37. Eliz.. Roll 136^ 

^^RESPASS. Upon a fpecial verdift the cafe was, That Rudde^ ThcanomipeK 
•*- the plaintiff, and one Giles Tucker were jointenants for life, «n^ furrenHcr 
TCverfion in fee to Sir John Arundel, of the land in qaeftion. Sir ^l^^^^^^ 
John Arundel gvznts by deed tliis revcrfionin fee to kdwend Tucker^ y^\ov^\nk» 
the defendant ; to whom Giles Tucker attorned, and afterwards fijr- ni»ii bind his 
rendered his cftate unto him, and died. Rudde, the plaintiff, qc- comisanioni ac4 
cupied all : the defendant entered, claiming the moiety : tlie plains ^^^ ^^ ^^^^ 
tiff brought trefpafs. ^^^^^^ 

It was argued by Clerk, for the plaintiff', that tliis attornment p^j^. gl^^, 
and furrendcr by one jointenant was void againft his furviving 
companion ; for he cannot prejudice his companion by taking ^' ^ ^' * 
from him the acquittal, and other privileges : and in proof hereof 
fclied upon 39. Hen. 6. pL 2. 19. Hen, 6. pLzi. 32. £dw. 3, 
•* ^id Juris Clamat;' 5. Wherefore, &c. 

i)oDERiDG£, } contra; who agreed, that upon a grant of a re- 
vcrfion by fine, the one jointenantlhall not be compelled to attorn, 
nor fliall his attornment prejudice his companion : but upon a 
grant of a * rcvprfion by deed, the attornment by one of them is 
good for his part, and (hall bind his companion, but not for the 
other moiety : and although it binds, yet it fhall not prejudice 
him as to thp acquittal ; becaufe it is by matter in fait. Where- 
fore, &c, 

Gawdy held, that the attornment was not good for any part; 
and yet he agreed to Littleton's Cafe of a feigniory granted, oecaufc 
it is entire ; but a reverfion is not entire ; fo 32. Edw, 3. is good 
law ; for oiie executor may prejudice his companion : but a re- 
verfion ought not to be made to pafs in another manner than the 
ftatute inteud^.-rrrPopHAM accord. For if tlie attornment ftiould 
be good, it would prejudice his companion, which a jointenant 
cannot do in things' real ; and a reverfion cannot be divided. 
Wherefore, &c. — Fenner doubted thereof. Wherefore <2^'o«r- 
naiur [a). 2. Co. 66. b. (a) Thkctfe 

WAS moved again in Hilary Term, 43. Bliz. and adjudged for the defendant. See Poft. 8&I9 So3. 
Vide 4. $c 5. Anoi q. 16. and u. Geo. a. c. 19. 

Barnabee a^ainjl Goodale. Case 7. 

"PRROR of a judgment in Bury, upon an information upon the Infoimaoonscm 
^ 5. Eliz, c. 4. f. 39. for extTcifing a tpdc wherein he was not ^'"^ ''h"*"k» 
apprentice for fcven years. The error alfigned was, Becaufe an |ll"hc'coiIm«^ 
information upon 4 penal ftatutc ought to be brought within one weftminiicr, 
of the principal courts at Wcjhninfter, and not elfcvvherc [a), un- Ante, 530. 
lefs it be otherwife exprefly provided by fome ftatute. And fo it \^ salk. 373, * 
was adjudged here betwixt Gregory and Blajhford [b), — And of that 4! inft/ija.* 
opinion were Gawdv and Fenner, c/vteris Jujlitiariis abfcntibus. '.Vent. 8, 

Wherefore for this caufe it was reverfed. Vide Dyer. 2-26 (c). 3- 1"^- X93- 

-^ ' •^ ^ ' i.Bnrr. 543. 

Hob. i«3. 317. Cro.Jac. 75. 178. And. 216. 2. Hawk. 28. (a) See 31. Eliz c. 5. and ai Jac. 1. 
C.4. (A) 6. Co. 20. Moor, 41a. 59y. (^ ) It i$ new determined by i!x cafe of F&fren v» Willianis,Cow« 
pcr)396. thai the quarter fcflionii may proceed by inforniation on ihii ftaiutcj and itc 3.Tcrm Rcp« 362.365* 

Pcnfon againjl Hodges. Case 8, 

Trinity Term, 41. Eliz. Roll 1024. 
jgRROR of a judgment in the common pleas, in debt upon an Inacbtonbood, 
obhgation. The error afligned was, Becaufe the plaintiff dc- ^''= omimon of 
Clares, that the defendant per fcr'iptum fuum obligatorium conccljiJct ^ A''*>-^^''^-'- 

A'CL ^ M. J I i o Mu^ J is» jcu td by ver- 

°'«. D)cr, 19. Cro. Jac. 420. ». Co. 5. Vent. 70. 3. Lev. 348, Ld. Raym. jc;, 330. 536. 
763.1043.1538. 6. Mod. 506. / */«i5 33"' 



^3* Hilary Tcnn. 42* Eliz. InB-R* 

FiNsoii teneri^ tsfc. without hying figillo fuo JigiJtat. as the courfe is in'thc 
^«^«iij/2 queen's bench ; as Kemp faid, that all their precedents there were, 
oDGE*. j^y^ j^ ^^^ moved on the defendant's part, and fa certified by the 
K. 40A. prothonotaries of the common pleas, that they Y^ere never uled ta 

mention the fealing of a bond. — And GAwny faid, that the de- 
claration was well enough, although it were not good by prece- 
dents (but as it is, it is clear) ; for when he {2A\h^per fcrtptumfuum 
ebl'tgatorium concejjitfe ieneri^ Isc. all neceflary circumftances are in- 
Cr>. J«c 4AO. tended to concur, vi%. the fealihg and delivering of tlie deed ; for 
otherwife it is not a Writing obligatory ; and delivery is jiever al- 
ledged : which proves tliat it is not neceflary toalledge the fealing; 
for that it is as neceflary as the other. Wherefore it was adjudged 
\m) Scd tide accordingly, that the judgment fhould be affirmed (a). 
Moor V.Jones, s. ^trangs, S15. 

Caie 9. Alyfon againfi Byfton. 

There fliaii be A C AM AS AD SATISFACIENDUM ifllued agaiiift one upoA 

15 days be- xx ^ recovery in debt ; and a non eft inventus was returned. 

OTd^t«m2f*a Whereupon a fare facias was awarded againfi the mainpernors, 

Jcire facial Which was returned nihiL Afterwards^ upon a kcoixA fcire facias 

•gainft bail; awarded, they brought in the principal, and prayed tliat he might 
and if they fur- be ill execution. — Kemp faid, that anciently the courfe of the 

cf"tb€forcthe ^^^^^ ^^ i^^^ ^^ ^^^ '^^ *® Common pleas), that» if a r^z.yi. were 

fecond writ if-* returned nihily the principal Ihould not be afterwards received to 

fues, he fliali render his body ; but they had of late ufed fometimes, that if the 

be received. mainpernors upon the firnfcire facias brought in the body, it had 

Ante, 618. been received.— But now tlie Court ordered, and appointed it to be 

i.RoIl.Ab.334. obferN'ed for a rule, that if a capias be awarded returnable at the next 

Moor, 850. Terra whereon nihil is returned, the principal Ihall not afterwards 

Litf "i'^' '^*' render his body ; but if it be awarded returnable de die in diem^ as 

•on«|^i*39. *^ courfe of the Court is here, that it may be fo done, then if 

Cro. jac. 109. upon the firft fcire facias the mainpernors bring in the body,- Iw 

Barnes, 84. fhall be received ; and that there Ihall be fifteen days between the 

i^ s?ik. ici. ^^^ ^j^j ^Y\t return of rht fcire facias, fo as he may have conve- 

Suan^^jTiyo, "^^"^ ^™^ ^^ ^^^^ ^^^^ principal. And fo it was appointed to be 

Burrow', 340.' obferved for a rule.— Note. Eafter Term^ 42. Eliz. between 

409.1360.2134. Afanning and Pactt it was ruled accordingly, 

J. Wilf. 169. I. Bac. Abr. ai6. 

^^« ^«- Ludlow*s Cafe. 

'^^^^^f^on of T X7DLOW wa«^ indiScd upon the 8. Hen. 6. c. 9. Exception 
' "utt flicrbl:'. ^v^s taken, Bccaufe the indiftmcnt was, ad feffionem pads tent. 

fore whom it' apud B. and (hews not in what county B. was ; but the county 
was taken. was in the margcnt (a). Secondly> Becaufe it was,not fl"iewn be- 
(«) Ante, 490. fore what juftices of peace it was taken (*).— And for tliefe caufd 
^ "*'^^359-^ it was ruled to be ill ; and he was difcharged, 
a. Kcb. 580. 1. CuIA, 203, i. Saund, 263. 3. Mod. 151. 2. Hawk. 360. 36a. i. Term Rep. 3x6* 

casi 11. ■ Cotton's Cafe. 

Anindiamcnt /^OTTON, an attorney of the queen's bench, was indiAcd, for 
for murder muft v^ ^liat hc fuch a day, vcar, and place, having an axe covertly ii\ 

!^l^,frl.o^T his hand, fejoniouflv ftrGck one Margaret 5/.mc^r. whereof flic the 
where tbe ilroke - , ' , /• 1 t^ • " / 1 • j*a ««. 

wa» given, and f^^ic day and year died. — Exception was taken to the indictment, 
the party died, becauf<\ tJiQrc wa3 not any place aUcdged where hc ftruck hcr» "^' 



Hilary Term, 42. Eliz. In B. R. 1^ 

where flic died. — Popham. For the firft, it is all one with Inv/Vj Cotton'* 
Caft^ in this court, which was ruled to be ill for this caufe ; for ^Ast. 
tlierc it was that he, fuch a day, year, and place, having fuch a j^^ Hai- ,-j^ 
weapon in his hand, felonioully ftruck. the party, dans ei unam pla^ 
7am mortaUm^ fo there was not any place alledged where he ftruck* 
but only where he had the weapon in his hand. Wherefore it 
was refolved to be ill. It is alfo ill for the other reafon ; becaufe 
it is not (hewn where flie died, 

Wingfield'e Cafe. c^ft i^^ 

117INGFIELD was indiftcd, for that he, ^l. January^ /^O, Eltz. An indidniene 
^^ fercujfit % S^ ex wa/itia,^ t^c. at B. dans ei plagam mortaUm, of Jj*"™««*«r "•••«» 
which wound he languilhed until the 23. Feb, 40. El}z. at ^^hich^^^*^^*j^ 
day, at B, aforelaid, he died ; and fo the faid JVing field die ct loco ccafedwasmor- 
fraditf. murdered him. — Exception was taken, Becaufe it doth dcrcd. 
not fhew at what day he murdered him, there being two days men- ^ntc, 101. 196b 
tioned before.— Popham. It hath been refolved here lately, in a i. Haic, x8o. 
Brechnockjhire Cafe, by advice of the Juftices, that if it be faid i.TcrmR^ 
that he murdered him, the day of the ftroke, or the d?y of the *5o- 
death, both ways are good ; for it is true that he killed him the \^^^'^^^ 
day that Ke ftruck him, and the other day alfo ; but here die et loco * ^ * 3^ 
frtedi^. is uncertain to which it fliall refer ; wherefore I doubt 
thereof. — But Gawdy held it to be well enough ; and tliat it fhall 
refer to the day of the death, which is laft mentioned. 

Holland againji Daunt zey, and Others, Cask ij. 

pRROR to rcverfe a common xccovcry in Lancajhire, Theerror Awricoferror 
^ affigned was. That the vouchee was within age, and appeared lies by tbofe in 
by attorney, where it ought to have been by guardian ; and he'*™^*"^**''^ 
bcii)g dead, the writ of error was brought by thofe in remainder, lu^rth!^^ 
--The Court held, that it well might be afligned for error after oftiic vwc^ 
his death : for it is not like to error brought to avoid a fine ; for for that he was 
here it (hall not bp tried by infpcftion ; for the point of error is, ^»fWn age, and 
that he being within age appeared by attorney. The plaintiff had fo/*^^^^L^** 
^fiire/acias 2ig%inii the heir of the recoverer and the terre-tenants. oTg«ardhm^a 
The heir appeared, ct nihil dicit ; and four terre-tenants being re- fiirtfatiat fl^aU 
turned warned, they pleaded that two of them were tenants of fuch '^"e to tbt heir, 
land jointly with J, and B. who were not warned, nor named; •"^'f"'«"'«»««"i 
find demanded judgment of the writ, &c. Thereupon thcplaintiff JJi„^^/j"^^^ 
demurred. And this plea being pleaded in Michaelmas Term laft, twoof thwl!? 
the entry is <//Vj datus cjl parttbus pradidJis until this Term. — It ?•«<! "yowr*- 
was now moved by Coke, Attorney General, that this jointenancy***"^" '«'^^. 
is no plea.— Firft, That jointenancy of parcel fhall not abate all ^'''''" who are 
the writ, but only of that parcel ; as 22. Edvj. 3. 10. 7. Rich. 2. rbaTforlhc' 
''Jointenancy,'' g. II. Hen 4. //. 16. 14. ^ 7. 19. Ajjl 14. whole j and they 
Pj€r, 291. Copley's Cafe. Rut non -tenure of part, at the common ^^^^ »" anfwer 
law, had abated all the writ; for that the demandant ought to jf ^'^^^ ^''"*''* 
have coni^fance who occupies the land, and .another writ ought to ^^^ 
be brought: but of joint tenure he cannot know; for the one ^""^^s- ^9- 
jointenant may occupy the whole; — Secondly, The pica is not good ^*^'^'^^- 
f<Jr them all, but for him only who is tenant for that parcel ; as Vyer^lu^' 
5. Edw. 4. 56. and 29. Jff^ pL 70. one cannot plead mifnomer of Hard! 163! 

I. Lev. 7». 13^, 
146- 1. Sid. 113. I. Kcb. 54. 351. 338. 459. 717, 748. Ray, z6. 55- 70. 96, Crp, Jac. 392, 
^wcp, I j7, Cro. Car, 295. 31 j. Mow* 5^4. C*rth. lu. 

ailpt^gj:. 



74^ Hilary Term, 42. Eliz. In B. R. 

Hoi. LAND another. — ^Thirdly, This plea of jointenancy in x\\i$ filre facias is 
"Z^'^fi no plea ; for it is not to the writ : for tlicre is not any tcnaMt fpc- 
m^'oTH^^t. ^*^''y named; but they are only named in the Iheriff's return. 
And when a' fcire facias names terre-tenants, there pcradventnrc 
^Am^i ^i* '^^ ^^^ ^^ named, and comes in by garnifhraent, fhall plead his 
1.R0II Rep-Voi* P'^^ ' ^"^ ^^^ where the writ doth not name any fpccialfy. Fide 
3.Bac Ab. 143. 46. Edw. 3. 29. 20. Edw. 3. ** Scire Facias^'' 12 1. 8. Hen, 4. 18. 
4.Bac.Ab. 418. wherc.in a, fcire facias the tenants ought to be named : and there is 
c ^t^"r' ^^^ ^^y reafon die writ Ihould abate through, the fherifF's defiiult, 
wilier". **^' where the party himfelf is biamelefs. And 11. Hen. 4. 16. is 
B.Burr. 361. good law, where in n fire facias jointenancy was pleaded, and ad- 
fift. judged that it Ihould abate tlic writ ; for the writ was not general. 

—Tanfield moved, that this pica was good, and fhould abate 
all the writ ; for it is not like to a pracipc quod rcddat : for tlicrc 
the writ is fevcral ; but the writ is here founded upon a record, 
which is entire. And it was adjudged in chancery between Cavm- 
difh and Morgan^ that in a fcire facias upon a reconufance, jointe- 
nancy was pleaded ; and it was adjudged, that it fhould abate the 
writ: and fo is 17. Edw, 3, 27. But it was thereto anfwercd, 
that the rcafon there is, becaufc all fhall be contributory to 
the execution. — And aftei-wards all the Justices held, tliat 
jointenancy is a plea in this writ, but only to that parcel.— And 
Gawdy held, that the joining in plea by the other two doth not 
make all the plea vitious ; but it is only of thofe two, -who could 
not tal^e advantage of the jointenancy with theothcr two. — But 
Popham, Clench, and Fenner held, that all the plea was Ti-^ 
tious, for this caufe. 

An entry, •< iits It was then moved, that here was a difcontinuancc of the whole; 
^dafuicft par^ for thc heir here nihil dicit ; fo nihil ought to have been entered 
" '^7X'€?r •' ^?^^ ^^"^' ^^^ not any continuance: but the day, which is 
haVoodMnW- g\^'cn partibiis pradi^is/\s intended only to thofe tenants upon 
•wd/TW, although whofe pica it was demurred, and not to the heir; fo all is<lifcon' 
©tie cf the par- tinued, — But CoKE Ihcwcd, that It was continued as well to the 
fi*s lias appealed j^gj^^ ^s to thofe who pleaded ; for it is partibus pradiilis inde^ l^c, 
AnttAsl'ei . "^^'hich is, that day is given of advifing to aH,^ whctlier they fhall 
^' '' anfwer to thc error : and if it be not a continuance, it is amend- 
l^^Aod^\r^^' able, becaufc it is the default of Ui? clerk,— And all, excepting 
v,if!^303! Gawdy, held, that the continuance was well enough, and needed 
5er;i. 136. 159. not to be amended. — But Gawdy held It to be a difcontinuancc, 
».Cv>na.Di5.3a5. and not amendable; becaufe there ought to have been fevcral con- 
tinuances : but if it had been a continiiance given to all, and the 
clerk had entered it for one, and not for the others, it fhould be 
amended, as 22. Ediv, 4. 3. is. — But the three others being againft 
him, they awarded the plea to be ill, ai\d th^t they aU Hiould aa- 
iwev to the error, Wherefore, &«;, 



Cai f4. Goburn agabft Wright, 

Fine rcverfed TERROR to rcvcrfc a fine ii\ Chejier. Thc error afflgnod wa^, 

becaufc thc dy J^ Bccaufc thc Writ of covenant bore te/le after thc t^c of thq 

i^oTC th7wVit ^^dimtts potcfatcm.— And it was held tq bp a manif(?fl error ; aacj 

of cov^ant. the fine was rcverfed for this caufe, 

3.Com.DIg. 347. I. Bac« Ab. ^zZ. S|icd« Touch. 5. ^r^I(9 99 Fi09i| 9^ 



Hilary Term^ . ^^ 

42. Eliz. In the Common Pleas, 
Sir Edmund Anderfon, Kuf. Chief Juftice^ 
Sir Thomas Walmfley, Knt. n 

George Kingfmil, Efq. i Jujlices^ 

Sir Edward Coke, Knt. Attorney General. 
Sir Thomas Fleming, Knf Solicitor General, 



Bedingfield agalnft Alliley. Cas« u 

/COVENANT. Upon evidence, the cafe was, One Gou;er de- An agrccindit 
^ livcred xoAJhley^ 26. £11%, iCXDl. who, by indenture, covenant- for looi, to pay 
cJ with Cower ^ that' he would pay to every of the children of ^^i- to each of 
Gowcr, which were then alive, and fliould be alive at the end of ^^^^^fj^^^^^^^ 
ten years, 80I. Cower having then five daughters; and for (^^.n ^vg) Jj^^, 
aflufance hereof, mortgaged his manor of fftmbGum^ and vras (haUbeUT.ngjt 
bound in a ftatute of 500L And, Whether this were ufur/ or titccnd o( (ta 
not? was the queftion. — And all the Justices rcfolved, that y**"' **"^* 
it was not ; for it is a mere cafual bargain, and a great hazard ^j^^^ ^ 
but that in ten years all the daughters, or fome of diem will be * 
dead J and if any of them be not alive, he fhall lave thereby Sol. q^\^\^^ 
But if it were, that he (hould pay 400I. at the cud of ten 153* . ' - 
years, if any of them were alive, it were a greater doubt. Or if i. Wilf. »89. 
It had been, that he fliould pay at tlic end of one or two years Burr. 704.^ 
300I. if any of the faid children were alive, tliat had been ufury ; ^o^p.77c.S9f. 
tor in probability, one of them would continue alive for fo Ihort 5!BariSi.4iil 
a time ; but in ten years are many alterations. 

Sec 17. Geo. 3. c 26. 

Bai'ker againjl Halifax. ^^^^ 

Trinity Term^ 4 1 . £//«. Roll .1234. 
ASSUMPSIT. Whereas tlie defendant, foch a day and year, -^^'""/iA' can. 
" in confideration that the plaintiff, by the defendant's appoint- ^^} ^ "'^^' 
nient, and for his debt, paufo ante tunc fohijfet to R. S. 60I. that the ^^^^.kml^ 
defendant affumed to repay it upon requcit, &c. The defendant Aibfrqaent id 
^\nAti non affimpjit ; and it was found againft him. And after the (tenfidem- 
verdift, upon a motion in arrell of judgment, tlie judgment was ^^^^' 
ftayed; becaufe the payment of thc6ol. lieing a confideration paft, p^^'g^g^** 
was not fufficicnt to maintain the adion. — ^But Walmsley faid, * ^' 
that an ajfumpjit in confideration that vou had married my »*'^o»-Abr.ii, 
daughter, to give unto you 40I. was good; for tlie affedion and j.Te'v^'Toe!^' 
confideration always continues. Strange, 933. 

Tho. Sniith againjl Sniith, Casij. 

PROHIBITION. The cafe was That the wife of one Stock ooorsc-nnotbe 

was excommunicated for adultery before the high commiftioners, broke open in 
Mrhercupon they fent out a purfuivant with letters miflive to appre- the night for .iny 
head her, and bring her before them ; by colour v^heredf, he, ^'^^'' ^^^^^^ 

** treafon or fc- 

W» iV)r can (be fpiritual court by any prcccfs arrcft the perfon, without an ex, tap^ puifuans to 
S* Uii, c. 13, a. Halci xi6. Cowp. 6, 7. Cougl. 360. Fofttr, 136. 320, 

J with 



?4« Hilary Term, 42. Eliz. In C. B. 

Surrn with the conftablc, in the night, brake open the houfc wtcre tKc 
2««^ woman was* Whether it were juftifiabJc ? was the queftion.— 
And ALL THE Court held clearly, tliat it was not; for neither 
upon a capias excommunicat, nor for any other caufe, unlefs for 
felony pr treafon, is it lawful for any to break an houfe in tho 
night. As alfo for another caufe, the whole Court held 
that it was not juftifiable; for tlicy of the fpiritual court, by 
reafon of excommunication, or by reafon of any other matter^ 
are not to meddle with the perfon of any man, or to fend any 
procefs to have the body before them. And therefore^ if any, 
for any caufe whatfoever, be excommunicated, and fo continue m 
contumacy for forty days, they ought to certify it into the 
chancery, and from thence to have an excommunicato capiendo^ but 
}^latL 331^ they of themfelves cannot award any procefs to take him; and if 
they might, the writ oi excommunicato capiendo fhould be vain (a). 
And the ftatute of i. Eliz. c. i. which gives the authority to the 
high commifRoners, doth not alter the law in this point: for 
that ordains only, that their proceeding Ihall be according to the 
ipiritual law, which is no otlierwife than as before is exprefled. 
wherefore, &q. ^ 

(«] See 3. ft 4:. Jac x. c. 35. 4. Bac. Abr* 455. 



CAtt 4« 



Wotton againft Shirt. 

Hilary Term, 4 1 . Elix. ^0// 62 5 • 



Vponan«/<fiV, "D EPLEVIN. The defendant avows for a rent-chatge; and 
tv^o-thirdt of a "^ fhews liow the plaintiff's father was feifed in fee of the place 
f«ntmaybccx- ^HERE, and granted a rent-charge to Sir John fVotton^ younger 
thclddfenSant** '^^^^^^c'^*^ ^^e plaintiff, of lOO rci2jV.% ter annum in fee, and that 
^tthcwlKjlc. Sir John fFbtton grziitcd it in fee to Luke Cobham^ whereto the 
Ante, 655. tenant attorned (a), ai^ that Luke Cobham was indebted to the 
Co. ut. X4S. avowant by judgment, and two parts of that rent was extended 
6. Co. I. ' by z fieri facias y and delivered unto him in execution ; and fo avows 
S. Co. X05. for two parts of the rent. The plaintiff replies, that at tlie time 
4.Bac.Abr.368. ^f (^g extent, Luke Cobham was poflcffed of the entire rent, which 
CoTlu.^^II b '^^S'^^ h^^^ ^^^ extended ; ana thereupon the avowant demurs. 
lrop.ok!of sh.' The folequeftionwas, Whetheranextentof twopartsoftherentwcrc 
167, 16S. See good ? — And all the Court held, that it was : for although by 
^.Car.a. «. 3. the aft of the party the tenant (hall not be liable to two diftreffcs, 
\'et by aft in law he may. And this aft of the (heriff's is anaft 
m law ; and his delivery of two parts was good. 

(a) See 4. Aon. c. 16. A 9. and 11. Geo. z. c. 19. U »• 

- cjaie 5. Taylor, and Joani his Wife, againfi George Sayer. 

Irintty Term, 4X« Eliz, Roll 512. 
A dcvifc of a PARTITION. Upon iffue, ♦* non tenuit infimul, etpro imSvi/c,^* 
remainder to* a * fpe<;ial verdift was found* The cafe was, Thomas Sayer f 
man's ij7i#, feifed in fee of the lands in queftion, holden in foccage, dcvifcd 
^huehchath them to his wife for life; " and after her death, the fame 
fevcr^u children, u Q^^\ remain to my ifllie." It was found, that at the fame time 
eeitSnty? ""' ^e had iffue two.fons, vi/. Robert^ and George the now defendant j 
Ante, 470. and two daughters, viz, -^//r^, and y^tf« the now plaintiff. And 

Cilbert,onDev. ii6. a. And. 134. Godb. 302. Sed vide 3. Lev. 433. <.Oo. 17* M»f!r«, and 
Ray. S3, where d»U cafe U denied to be law. 40. Mod. 376. %\ td. Ray, 1313. 

devifc^ 



Hilary Term, 42. Eliz. In C. B. Hi 

Sevifcd to his two daughters, each of them lol. folvendum at their "fATLom 
agc^f eighteen years ; and that one of them Ihould be heir to the sf ?'»«* 
other of tiieir legacies ; and died. Robert the eldeft fon died with- 
out ifflie. j^Iice the daughter died without iffue. The wife of 
the devifor died. George the now defendant, and Taylor, who 
married Joan, entered with him and brought partition. Et fi 
fuper totam^ t^c. — After argument, it was adjudged for the defen- 
dant, that he did not hold '* Injimuly et pro indivtfo ;" for they held, 
that tliis devife of the remainder to his iffue, is uncertain what 
iffue he intended, he having divers iffues ; and it Ihall not be ex- 
tended to all his iffue : for a will fliall be conftrued according to 
the intent of the devifor, where a certain intent may be coUefted ; 
but where it is uncertain it is void. And therefore a devife to hia 
fon, where he hath two fons, is void ; becaufe it appearcth not 
which of them he intended ; and it Ihall not be conftrued to bo 
to the eldeft more than to the other. But Chapman s Cafe in 
16. Eliz. may have a good conftruftion, becaufe it is to the moil 
worthy of blood ; and the intent of the devifor ought to be col- 
k&ed upon plain words, and not upon words which engender 
confulion ; and if it may not be coUefted by the words, it is void. 
As a devife to two et haredibusy fo a devife melioribus hominibus in 
D. is void ; for It cannot be known whom he intended to be the 
bcft men. And as Walmsley faid, it is a good w^y, when the 
words in a will are ambiguous, fo as the intent may not be col- 
Icftcd, to expound tlic will according to the law, to tliere fliall 
not be any prejudice, — ^And here they all held, if by the devife to (o) Ante, 51. 
the iffue, it (hould be extended to all the iffues, they fliould. have 470; 4^i« 69#- 
it for life only; and when the revcrfion defccndcd to one joint- ^•^?'. *^* 
tenant for life, or the other joint-tenant for life purchafed the , ^^r.^ 2'*^ 
rcverfion, the jointure is fevered ; and thecftate for life drowned (fl). crp. Jac, 6ch 
And not like where two purchafc, to them and the heirs of one ^^ a)TKi%ci{fii/t' 
them; for there the agreement at the beginning was, that the nied» Ray. sV' 
cftatc for life fhould continue ; and it was cited to be fo ruled x: Vent. 449. 
33.JE//2. in Lady Af organ's Cafe, in the court of wards ; and in3'^v-43»' 
37. Eiiz. to be lb adjudged iii this court. And between Port/ey^^^^ ^^Poo?^ 
and Porjley, it was ruled that it was all one ; where the one HiffJ/G^. ». 
purchafcth the reverfion, and where the revcrfion dcfcends to c.b.lc'jk 
the one joint-tenant (b). Parhr\ MSS. 

An exception was taken to the writ, becaufe it was general againft A general writ 
the defendant as joint -tenant, which is intended a joint- tenancy ^yJo»w-tcnanff 
in fee; whereas it ought to have been fpecially framed upon thefj?^^*;^'^^^^''* 
^2. Hen. 8. c. 1. and to have fliewn the fpecial matter, how it was without reciting 
a joint- tenancy for life. — Sed non allocatur. Becaufe the precedents the cafe partku. 
arc, that always in fuch cafe the writ is general. Wherefore it ^^^^^ *'°^' 760. 
Was adjudged for the defendant. i-Bl. Rep. 1x34. 

See 8. & 9. Will. 3. c. 31. 

Baldry againft Johnfon. Cas» 6. 

Trinity Term, 41. Eliz, Hell 1702. 

A CTION upon the cafe againft the defendaut,^ gaoler of the a gaoler u not 
^ prifon in Bury. For that a plaint being before the bailiffs of i*»*Wc to the 
the fame vill, according to the cuftom there, they direfted a pi>in«'ff ^^ !*>« 
wanant to the undcr-bailiffs to take the party, ha quod habeant \^llx^m^\xk 

*> hi* care, upon an arrtft made by the under-biiUffs pf an inferior court. Ante, 26. i. RoH^ 78. J 
?• B«c Abr. 144. W. Ra^ro. 655. 1. Salk. 273, Cowp. 403, 2. Term Rep. £. 



744 Hilary Term, 41. £Uz* In C. B. ^ 

^^^^»/ ^^'*^«-^ ^Juf coram balUvis ad prcximam curiam Und. tenend, viz. fucha 
loHKMir. ^*X" ^^^ under-bailifFs arretted him, and committed him to 
prifon, fub cujlcd'id of the defendant. After verdift for the plain- 
tiff, it was moved in arreft of judgment, that this aftion hes not 
againft the defendant ; for the prifoncr was not committed unto 
him by any lawful authority : for the under-bailifFs had authority 
to take him ita quod, but not to commit him to any other prifon ; 
for that it is on tlieir own head. And into whatfoever place they 
Ihall commit him, they Ihall retain him but as the fervants to the 
tinder bailiffs ; and it is as the under-bailifFs' houfe, and anaftioii 
lies againft them if they have him not at the day, &c. and not 
againft any other. 

Ca8K7* Southcoat againjl Manory. 

Michaelmas Term 40. ^41. £//«. Roll 3 3 19. 

Kaibandand 'TRESPASS. Upon a fpecial verdift, the cafe was, That one 
wi/c, tenants for -*• ffh'ite and his wife were fei fed of thofe lands, 'to them and 
life, mortgage in the heirs of tVhhe : ihf^y by indenture bargain and fell it to Pajion 
ihlatcm pajnwjt ^^ fee; wherein wzs 9. provifoy that if JVhite or his wife, or the 
of looi. they beirs of /i^/?//^, paid lool. to Pa/Ion at fuch a day, that then it 
ihaU re-enter, fhould be lawful to them, and to the heirs of ffO:>he to enter and to 
and that all re-liavc, and enjoy, as in their former eftate, tliis indenture not- 
*hTmoii" *«j*^ withftanding ; an<i that then after fuch a payment, this indenture, 
tuipayinnftr *^^^ ^^^ Other fines and alTu ranees to be pailed between tlie faid 
jmdthen to the parties, fhould be to die ufe of White and his heirs (leaving out 
huOMuid and bis there the wife). And laftly, it is agreed, that all fines and dfur- 
^r^'ed^ ^"d ances, to be made between the parties within feven years following, 
i^jrty! ^^ ' fl^ould be to the ufes, intents, conditions, grants, and agreements, 
bu(band<iicft. before here cxprefled, and to no other ufe, intent or purpofc, &c. 
The wtfc pays The deed was not enrolled. IVhlte and his wife, within feven 
ehe money. The years, levied a line, according to that indenture, to P^o;?; after- 
iwto^dw'Lfc ^^'"^^ /^;/f died, and his wife at the day paid the lOol. and enter- 
grille v^ifc. ^» and took the plaintiff to hufband. The defendant entered by 
command of the heir ; pretending that by the Ipayment of the 

il^ \Q . '^^'* ^^^^ ^^^ ^'^'^^ ^^ ^^^^ ^^^ ^^ ^'^^ ^^"^^^ ^^ IVhitCy and not to the 
j.Roii.Ab!793,/^'^^. ^'T^j ^'^*- — And ALL THE CouRT, after nreumcnt at the 
iitio. 138, bar, rcfolved for the plaintiff, that the feme fhould have an eftate 
for life ; for fo is the condition and thefirft part of the claufe ; and 
that the otlicr part of the claufe, or middle claufe, is nor repug- 
nant, but ftands well with it, that it Ihall be to the ufe ot the 
baron and his heirs, and doth not controul tlic limitation to die 
feme for her life: and when both claufes may by any conftruftion 
Hand together, it is to be conftrued accordingly ; and tlic lafl 
claufe expounds this fully, that all affuranccs mall be to all the 
ufes contained in the indenture, whereof this is one; and tliatif 
all the claufes cannot ftand together, the firft fhall ftand rather 
than the laft. And they held, tliat an ufe cannot be raifed by barga'irt 
and fale by itfelf; but upon the fine it might well be limited. 
Wherefore it was adjudged for the plaintiff. 

^A$t S, Shailard againft Baker and his Wife* 

EaflerTermy ^i.EUz. Re// 1 04 3. 
Adcvlfeto hJs r^JECTIONE FIRM-^ of a leafc of Bear croft. Upon a fpccia! 
two fons, aid if Ei verdift, the cafe was, That one Robert Hunt was feifcd in feeof 
1h^,i^bLtrcf7t^^^^^^^^^^^^^^^^^ and had iffue three fons, viz. frMam the cld^O, 
if, that th gift fhall be void ; and dircAing an annuity to be paid by them to his eldeft (od «nd his hcii*» 
co'ivc) s an eftai in fee.— Amc^ 204. 378. 



Hilary Term, 42. Eliz. In C. B- 745 

fon, by one venter, and James and Francis^ and a dauglit^r Jmk Shauai(|» 
(who was die wife oiBakcr the defendant), by another \ enter; and ^s^injj 
dcvifed thofc lands to James and Francis his fons ; " and if cither ^^^^ ^"** 
" of them, or their heirs, do fell the fame, the gift of it fliall ftand ** *'*' 
" void, and fo return to the whole heirs again. And in another 
partof his will he willed, *' thaxjames ^nA Francis ylii^ fons,fliould^* Mod Ic. 
" pay annually to IVilliam Hunt his cldeftfon, and his heirs, 3I." \^ Vern.iok 
Robert the devifor died. James and Francis entered, and died witliout Hob. 65, 
iffuc : and,Whether this were an eftatc tail in them, which detcrmin- 3- **«««■• Wmi. 
ed by their death without iflue -, or. Whether it were a fcc,which fliall *95' 
go tb tlieir (ifter of the entire blood ; or. Whether it were an eftate cowpTxacfsri 
forlife only in them? was the quellion. — And all the Court, 
after argument at the bar, refolvcd, that it was an eftate in fee ; 
becaufe it appears that the intent of thedevjfor was, that the heirs 
of the devifec Ihould have it by the words, '* if he or his heirs 
"Jalien ;" alfo by the words, ** referving rent of ^1. to his eldeft 
" fon and Ws heirs ;" fo as they gave a confideration for it. So 
of neceffity it is to be intended, that he gave more than an eftate 
for life, and it cannot be an eftate tail. For, firft,*it is ^ fee-fimplc, 
by the intent of the will; for fo the will fhall be conftr\^ed, accord- 
ing to the intent of the devifor, if it may be coUefted, when thQ 
words are fatis aptOy although they be not confulta. The in- 
tent alfo plainly appears, that he purpofcd tlie heirs of th« devifee ^ 
Ihould have it, which makes a fee ; and to have it an eftate tail 
cannot be ; for his intent appears not by any cxprefs words ; and 
as Walmsl^y faid, a will fnall not be conftrucd by intent upon 
an intent ; for then it fhould be ufan€ infinitum. And although 
the words be, " Provided, that if tney or their heirs alien, &c, 
" that their eftate (hall \k void, and that the land fliall revert ;" 
that is a void condition, being annexed to a fee : and a fe? cannot 
be limited upon another fee. And the word ** revert" fliall not be 
conftrued, that it ihould be an eftate tail, when it doth not ap- 
pear, that his intent was to make it an eftate tail, but a condition ; 
tor otherwife, by the alienation of the one, the eftate of the other 
Ihall not be determined ; and this was his intent : and fuch a con- 
dition cannot be annexed to an eftate in fee by the laws An4 
therefore it is void; and thereupon adjudged fpr the defendant. 

Brown againft Adams. Cah 9, 

Trinity Ternty 41. £//«. Roll \\t^, 
T\EBT upon an obligation, conditioned, that if one Tovie »p- a flicrirsboiwl 
^ peared before the Jufticcs of the common pleas, that then, takcn^y a 
&c. The defendant pleaded, that one JVhyJller purfued a capias ^5^^ *" * ^ 
out of the common pleas, which was delivered to the plaintiff, f^^^^51« In '^^^ 
being Iheriff of Oxford^ whq made a warrant to the bailiff of the which ihcancft 
hundred of //. to arreft the faid Tovie^ and that one J^ S. put in vva> made, is 
his own name, as a fpecial bailiff to arreft the faid Tovie ; and void bj du reft | 
that the faid J. S, by colour "of that warrant, arreft<;d the faid ^';|j;'„"^°' - 
Tov'ie at D. in the county of Oxon^ and carried him to IV^ in the ^.^;/,^ 5^0.10.! 
county of Berks^ and there detained him until the defendant and x\ jones, 76. 
tlie fa'id Tovie entered a bond to the plaintiff, as IherifF of the Com. Rep. 164. 
county of Oxon, for the appearance of Tovie. So the bond is void ^*^g'^^°^j^ ^ 
by the 23. Hen. 6. c. 10.— The plaintiff demurred j and it was ad-^; j'^^p'^J' 
«:iio, Enz, ?ART II. D d 4 judged, 



*j^S^ , Hilary Term, 42. Eliz. In C. S* 

Brown judged, that the plea was ill : for although this bond was made by . 
Mf^inft durefs, as all the Court agreed, and that the defeudant might 
AoAMi. ^gn j^^^g pleaded it, and relied upon it, yet it is not within the 
llatute ; and the defendant is not aided tliereby : for Tovie was 
never in the fheriff's cuftody after the arreft; and the bond 
taken out of the county is by durefs^ but nof witliin tlic ftatujc, 
Wherefore it was adjudged accordingly, 

Caii I. Bail a^ainfi Bridges, 

Hilary Term^ 42. Eliz.^'^In the Excbeq^uer C homier, 
Hilary Term i /^l. Elite, Roll woo. 
The faa which p^RRQR of a judgment in an aftion upon the cafe for thefc words 
conftitmcs the XL« of Bridges : *' He is a maintainer ot thieves, and keepeth none 
faion muft be " ^^^ thieves in his houfe, and I will prove it." The error 
dircdiy averred, afligned was, that the words were not aftionable ; for he doth not 
Ante,5s« fay and avcr, that he knew them tq be thieves whom he main- 

j.T. Rep. 70. tamed; and one may have thieves in his houfe, and