Ralph Marsh against John Culpepper.

RAlph Marsh brought an action upon the case against Iohn Culpepper and Anne his wife, for an Assumpsit made by Anne, dum sola fuit. And afterwards the Assump­sion is found by verdict. And Davenport moved in arrest of Iudgement, for that, that there was not a sufficient consideration; for whereas the wife was Administra­trix to Goddard her first husband, who was indebted to the Plaintiff (for so the Plaintiff declared) and that he intended to sue the wife as Administratrix, and that the wife requested him that two might surveigh the account between her husband and the Plaintiff, to which the Plaintiff assented, and that two surveighed it accor­dingly, when it appeared that the debt was due, and that then the fore-acknowledgement, of her husband to be so indebted; In consideration of the premises, assumed to pay the debt, part at Michaelmas, and the other part at a convenient time after: But there is noe consideration to make her chargeable, de bonis propriis, as their purpose is to make her, (by their Declaration against her) and not as Administratrix: For it is not mentioned that in consideration that she had assetts, or that the Plaintiff would forbear to sue her, or otherwise, &c. So that the debt of her hus­band by the Assumpsit cannot be changed to her own debt. And it is not like Banes case, Co. Re. 9. 94. For there the Plaintiff was to for­bear to sue him; and for that assets is not requisite. The like is Beeches case, 15 Eliz. in that Court reported, New Entries, fol. 2. Richardson of the same opinion, because there is not any consideration, nought but the assent of the wise to the accompt; which will hardly charge her de bonis propriis. See Co. lib. 6, 41.

Pasch. 3. Car. Com Banc. Thomas & Ux. against Thomas Newark.

THomas and his wife brought Trespass against Tho. Newark for beat­ing of the wife, and taking of the goods of the husband only, ad dam­num ipsorum; and afterwards the matter was found by verdict; and it was moved, that the Declaration was nought; for the wife cannot joyn for a Trespass done to the husband alone; but in a trespass done to the wife alone, the husband ought to joyn, and for that the Court awarded, quod quere [...] nil capiat per bill. But it was said by Crook and Yelverton, if ba [...]on and feme bring trespass for the beating the wife, the husband may declare for a trespass done to him, ad damnum ipsius, &c. But it was said by Hutton, if two joyn in trespass for taking goods whereof they were joyntly possest; one of them in an action cannot declare for taking of the goods of him alone: Which was agreed by Crook, &c.

Blackhall against Thursby.

ONe Blackhall petitions in the Court of Requests, to compel Thursby. Lord of the Mannor to admit him to a Copyhold surrendred to his use, which he refused before to doe. And also forbad one, to whom the Copyhold was demised by Blackhall, to pay him any rent Vpon which it was decreed that Thursby should admit him to a Messuage, and 17 acres, whereas the Copy was of a Messuage, and 3 acres; and also that Thursby should set forth the bounds of the Copyhold, which he had defaced and re­moved, and that he pay the rent. Hitcham moved for a prohibition; for he said it was more just for a Court of Equity to compel a Lord to admit his Copyholder; for before admittance he cannot have an action, and he has no remedy at the Common-law: And so if a Copyholder removes or defaces the bounds of the Copyhold, it is proper for such a Court to design them. To which the Court agréed; but they would not compell him to admit him to the Messuage and 17 acres, where the Copy is but of thrée acres, which would be unjust; unless that the 3 would comprehend the o­ther 14. But parcel or not parcel of Copyhold, belongs to the Com­mon-law to try. But the Court denied the prohibition for that cause; for the Iustices said, that that admittance to 14 acres does not bind the title; but it sets at liberty as to that. But if they had decreed; that he should be admitted and also enjoy it to him and his heirs, then the De­cree had been unjust, and a prohibition for that. But for part of the Decree which touch'd the rent. It was agreed by the Court, if Thursby re­ceive the rents, the decree was just, that he should pay it; but if he did not receive the rents, nor take the profits, but only forbad the Tenant to pay the rent, and he would save him harmless. Then if it was decreed that he should pay the rent, a prohibition to that part should be granted. And Harvey Iustice in that case said; That he knew it to be adjudg'd, that a surrender, with the appurtenances, would pass land; And of a Messu­age and 3 acres would pass more acres; if divers Copies successively have been so. And upon questioning of Blackhall by the Chief Iustice for saying, that after there was a Decree in the Court of Equity, an Or­der of the Common-bench could not supersede the Execution of it. And Iustice Yelverton declared, That when he was in the circuit at York, a poor man who sued before him in forma pauperis was arrested by process from the Council of York. And that upon notice of it, he commanded a writ of privilege to be made for him, but the Officer of the Council would not obey it; upon which he claps in a Habeas Corpus returnable at a certain hour; and the Officer came without the body, and refused to de­liver the prisoner; and said that he had not power to controll the process of the Council. And upon that he set a fine upon him of 40 l. and his Act [Page 3] was approv'd on by the whole Court. For every one that sues before the Assize, ought to have free egress and regress, and staying while his bu­siness was ended: And afterwards the Lord President said to Yelverton, that he would complain to the King and Privy Council of him, for that he had transgressed his authority and power. And the Court said that they would justifie it, &c.

Smith against Doctor Clay.

HEnden moved for Doctor Clay Viccar of Hallifax, that a prohibition might be granted to the High Commissioners of York For that, that these Articles by one Smith were preferred against him, &c.

First that he read the holy Bible in an irreverent and undecent man­ner, to the scandal of the whole Congregation.

Secondly, that he did not doe his duty in preaching; but against his Oath, and the Ecclesiastical Canon had neglected for sundry mornings to preach.

Thirdly, that he took the Cups and other Vessels of the Church, con­secrated to holy use, and employed them in his own house, and put barm in the Cups, that they were so polluted, that the communicants of the Pa­rish were loath to drink out of them.

Fourthly, that he did not observe the last fast, proclaimed upon the Wed­nesday, but on the Thursday, because it was an Holyday.

Fifthly, that he retained one Steveson in one of the Chapels of ease, who was a man of ill life and conversation (scilicet) an Adulterer, and a Drunkard.

Sixthly, that he did not catechise according to the Parish Canon: but only brought many of Dr. Wilkinsons Catechisms; for every of which he paid 2 d. and sold them to his Parishoners for 3 d. without any examina­tion or instruction for their benefit. And that he, when any Commissi­ons were directed to him, to compel any person in his parish to do penance, he exacted mony of them, and so they were dismissed, without inflicting any penalty upon them, as their censure was. And that he and his servants used divers menaces to his Parishioners, and that he abused himself, and disgrac'd his function, by divers base labours (scilicet) He made mor­tar, having a leathern a prou before him, and he himseif took a tithe Pig out of the Pigsty, and afterwards he himself gelded it. And when he had di­vers presents sent him, as by some, flesh, by some fish, and by others ale, he did not spend it in the invitation of his friends and neighbours, or give it to the poor; but he sold the flesh to Butchers, and the ale to Alewives again; And that he commanded his Curat to marry a couple in a private house, without any licence, and that he suffered divers to preach, which perad­venture had not any licence, and which were suspected persons, and of evil life. It was said by Henden, that they cannot by the Statute of primo Eliz. cap. 1. meddle with such matters of such a nature, but only examine heresies, and not things of that nature, and that the High-Commissioners at Lambeth, certified to them, that they could not procéed in such things; and advised them to dismiss it; But they would not de­sist, and the Iudges, Richardson being absent, granted a prohibition, if cause were not shewed to the contrary.

Note, it was said by the Iustices, a discontinuance could not be after verdict.

Humbleton against Bucke.

THeophilus Humbleton was Plaintiff in an Assumpsit against Bucke, and declares that whereas there was a controversie between one Pal­mer, who pretended to be Lord of the soyl, and the Inhabitants of such a Village concerning Common in ripa maritima, which Palmer claimed to be his own soyl. The Tenants claim common there, and a liberty to cut grass, and make hay of it, and to carry it away. Palmer incloses the soyl; Humbleton enters upon the place enclosed, and also takes the grass, being one of the Tenants: And Palmer brought a Trespass against him, and then Bucke assumes to the Plaintiff, in consideration of a Iugg of Beer, and in consideration that the Plaintiff in the Trespass hanging a­gainst him, would plead a Plea in maintenance of their title of Com­mon, he immediatly would pay to him the half of his expences; or if he failed of that, he would pay him forty pounds. And further, he said, that he pleaded not guilty in that action of Trespass, which was found for him; and that he expended so much money, the half of which the Defendant re­fused to pay to him, &c. The Defendant pleads non defendit sectam in maintenance of their Common, which was found against him. And Da­venport moved in arrest of Iudgement; because that he ought to have pleaded such a Plea, by which the title of Common might come in que­stion; but when he pleads not guilty, he disclaims the matter of Common: And also the word immediatly is not to be taken so strictly, that he should pay the money in the same instant, &c. But the Plaintiff must de­clare what costs he had expended, and then he shall have reasonable time by the Statute to pay the money. But Athowe answered, that the verdict which was in the Kings Bench helps him; For it was there found, that that land was the Kings wast, and that Palmer was not owner of the soyl, and therefore for that his plea was good: for the title of Com­mon cannot come in question. Richardson Chief Iustice said, that that is not a maintenance of the title of Common against Palmer. First, he cannot give that verdict in evidence, in a prescription for the Common; and the maintenance by that Plea of not guilty is for the soyl, and not for the Common; and whoever is owner of the soyl, the title of Common is not specially against Palmer, but it is general against every one in the world. And so was the opinion of Harvey and Crook: And Crook said, that although the verdict had found the Assumpsit, and so admitted, that that plea was for maintenance of the title; yet that shall not bind us. For if a verdict finds matter which is repugnant, or a thing which cannot come in question, it shall not bind us. But by Iustice Yelverton it was said; That because the Iury have found the Assumpsit, they have admit­ted all the residue; And for that we do not doubt of it no more than the Iury have decreed. As in an Ejectione firm. If they be at issue upon the collateral matter, it shall be admitted, that there was an ejectment, and so it was adjudged. But this cause was deferred to another time, to be argued more, &c.

Meridith Mady against Henry Osan, & aliis.

MEridith Mady brought debt against Henry Osan, for that he and 5 others were bound to perform the Arbitrament of thrée elected by them and the Plaintiff concerning all tithes and all other matters of con­troversie between them, and that they still and all the Parishioners should perform and stand to the award made, &c. And upon breach of the a­ward made, was the action brought: For the award was, that when any of the Parishioners clip their sheep, they ought to give notice to Mady [Page 5] the Parson, to the intent that he or his Servants may be there: And the Defendant did not give notice, &c. The Defendant by rejoynder pleads, that Allen and others, that they were Deputies to receive the Tithe-wool, and that they, or one of them were present at the clipping: and so they demur. Athowe said, that notice ought to be given to the Parson himself, for perchance he would be there himself had he notice. And for that, the breach alleged is not answered. And also he said, that they, or some of them were present, and does not name him as he ought, for he may come in issue, &c. Richardson, If the Arbitriment was made for some things within the submission, and some things without; It is good for those things that are within, and void for the residue; And although the Parishioners did not submit, yet it is good, because the six are bound for them. Hut­ton said that the Award for the notice is not good; for it is not well as­signed, where the notice should be given. And an Arbitrement ought to be reasonable, but it is unreasonable that he ought to inquire Mady, where­soever he is to give him notice, as Cook 77. Salmons Case. Crook said, that the Award is good, and it shall be intended, that the Parson is al­waies resident in his Parsonage, as a Surrender or an Attournment shall be intended upon the Land, and it is not requisite to name any place. And it seemed to Harvey, that the Arbitrement was good, although that all the Parishioners had not submitted to it. Because that these were bound for them. 18 E. 4. 22. & 1 [...]. 1. And Iudgement was after­wards in the next Term given for the Plaintiff.

Iohn Paston against William Manne.

IOhn Paston brought an Ejectione firm. against Manne, and a special ver­dict was given to this effect, (scilicet) Edward Paston was seised of the Mannor of Bingham, parcel whereof was the Land in question, grantable by Copy. And he by his Deed indented, in consideration of a Mariage to be had between Tho. Paston his Son, and the Daughter of I. S. covenanted with I.S. to stand seis'd of the Mannor, to the use of his Son for life, and af­ter to Mary the wife for life, the remainder to the first Son between them in tail, with divers remainders over. The Mariage was solemnised, and they found moreover, that there was a Custome, that the Lord might have liberty of fould course for 100 Sheep, throughout all the Copihold­land: lying in the East and North field, the Customary places and Lands in these Fields not being inclosed, from the Feast of St. Michael, to the Feast of the Annunciation, if the grain was carried in by that time; Or otherwise from the time of the carrying in to the Annunciation, if it be not sowed with seed again, and that those 15 acres in question, be in the Corn­field. And that Thomas Paston granted that Copihold to the Defendant in Fee, and that in 14 Iacobi, the Defendant enclosed the Land without Licence of the Lord, and if Licence was obtained then he ought to have paid a Fine which the Lord would have assest. And if any of the Tenents inclose without Licence, they find, that they have used to be punisht, and pay those penalties, which the Lord would assess. And they also found, that that incloser by the Copiholder, was with a Ditch of six foot in breadth, and 3 foot in depth, and that the land which he digged out, was but to make a Bank upon the Land, upon which a hedge of quick thorn was set, and that four gaps were left in the inclosure of nine feet in breadth. And they found that the Defendant did not at any time com­pound for a Fine. And then they find that the Copiholders which before this inclosed without Licence, were amerced, and commanded upon a pain, before a certain day to throw up their inclosures; And now for this inclosure Thomas enters for a forfeiture, and dies, his Wife makes a Lease of it, and the Defendant ejects the Lessee,

Atthowe held that he had forfeited his Copihold, for that inclosure is against the Custome of the Mannor, which is found. For the Custome is the life and soul of a Copihold; as it is in the 4 Rep. 31. Brownes Case. The breaking of that is a forfeiture, and make the Copiholder have an Estate at will meerly, whereas before he had an Estate not meerly at the will of the said Lord, but secundum volunt. domini. And so by the inclosure the Lord cannot have his fould course, and so the custome is broken. 42 Ed. 3. 25. For not doing the services, the Lord may en­ter and have the Emblements. If a Copiholder makes a feoffment, it is a disseisin; for which there may be an Assise of novel disseisin de libero tenement of Lands, whereof the profits, or of the Rent issuing out of the Land there is a forfeiture. And Littleton said, that a rescous Replevin Enclosure, and denying the Rent is a Disseisin. And what is a Dissei­sin of a Freehold is a forfeiture of the Copihold. Rescous by a Copihol­der is a forfeiture, for all the books say, that a denial of a rent is a for­feiture. And it is held, that if a Copiholder brings a replevin, it is a for­feiture, and the Lord may enter presently; But if he avow, then per­chance he hath dispensed with it. And an inclosure is more strong than a denial, 11 E. 3. Assise 88. cited in Taverners Case, 4 Rep. The heir cannot have an Assise before entry: but if the Defendant menaces him, or stops up the way, it is a Disseisin, 14 Ass. plac. 19. 8 E. 2. As. 374. A stopping up of the way is a disseisin; but if he can go another way, he can have nusance 29 Ass. 49. But it will be objected, that the Lord had a­nother remedy: for he might have an Action of the Case. And for that not enter for a forfeiture. But an Action of the Case does not restore him to the Freehold, but give dammages only. And if an Assise be brought, it affirms the Disseisin, and makes forfeiture; and that agrees Taverners Case, That where several Copiholds were granted by one Copy, a rent denied of one, forfeits that and not the others. But admit it is a forfeiture, if the leaving the Gaps dispence with it. And it seem'd that not; for he loses the profit of the Fould-course, for 500 Sheep, would tear their fleeces by such a narrow passage: and the inclosure is an impediment to hinder their spreading in their feeding; And so every one also may inclose, and leave gaps: and the Lord perhaps, compell'd to put and remove the Shéep ten times in one day, and so the Sheep worse at night than in the morning, &c.

Secondly, if the Lord had given Licence, then he would have had a Fine, but he would so be his own Carver. And the Lord had no re­medy for a Fine upon admittance after Surrender, 4 Rep. 46. He had no remedy there by Action of debt, nor by Action of the Case, without promise to the Admittance, &c.

Lord grants a Copihold Escheat, he ought to improve his Fine before; or he hath no remedy; for he is not compelled to grant the Copihold again, and therefore he shall have what Fine he will. And it is not found also who may inclose paying his Fine. A Lord admits a Copi­holder for life with remainders; the admittance of Tenent for life, was the admittance of the remainder, but he shall have his Antefine, 4 Rep 23. And if they may inclose paying a Fine; then the Lord had an Estate at the will of the Tenents.

Thirdly when it is found that the Lord amerced and commanded upon pain, &c. that is no mitigation or dispensation of the forfeiture. For ruinous Houses pull'd down is a forfeiture, without Custome to the contrary, Because no waste lies against a Copiholder, as against Lessee for years, And yet the Lord in favour may amerce such a Copiholder if he will; and that is no dispensaition but an affirmation of the forfeiture. And so because the Lords were conscionable and would not take the for­feiture, that does not prove that it is a Dispensation.

Fourthly, the making of the gap and hedge of that latitude, &c. is waste, and for that a forfeiture. 22 H. 6. Waste 46. There it is agréed, that if Land be digged to make a Bank, and if more be digged than is necessa­ry, that is waste, if it be not cast down again, for the Land might be made barren. 41 E. 3. Waste 82. There it is not waste, for the Land is better than it was before; But it is not better if it be arable Land, for the Trees and Bushes shadow the Sun from the Land. Dyer 361. And if none had been folded there, yet it should not have been waste. Fod­der in Meadow is waste: but there it was found by the special verdict, that the Land was imbetterd. If Lessee for years does so, it is a for­feiture, 2 H. 6. 17. There it is said; that permitting the Land to lye fresh is waste; But thorny is no waste, for the Less may grub the Thorns up, and it shall be better Land; wherefore he prayed Iudge­ment for the Plaintiff. But Sergeant Henden argued for the Defen­dant; and conceived that in the whole cause pleaded, there is not any thing in it which makes a forfeiture. There are two things in it to make that inclosure and waste, And first, That an Inclosure without Licence is not a forfeiture.

First, every Act that makes a forfeiture of a Copyhold ought to be a dis-inheritance to the Lord, &c.

Secondly, a voluntary Act against the Custome, &c.

Thirdly, in this Case there is not any Custome found which makes a Forfeiture; And for that any Condition in Law is excluded: A Copi­holder is in, tenens secundum consuetudinem manerii, and therefore an Act that makes a forfeiture ought to be against Custome, and a dis-inheri­tance to the Lord of his Copihold; and not of a Collateral thing. As a Trespass upon the Demesus of the Lord is not a forfeiture, 21 H. 7. Kell. 77. 9 Rep. 76. Combes Case there has the same rule. The Custome fixes his Estate so long as the Tenent does the services, and observes the Customes. Hill. 16 Iac. Com. Banc. rot. 335. Brettyes Case. Two Copiholders are, and one release to the other, is no forfeiture. Dyer 221. One part of the Services there was to make Presentments, and if he re­fuse it is a Forfeiture. If a Copyholder fell Trees it is no Forfeiture, because it may be for the reparation of Houses. But an Act afterwards, as selling them, may cause a Forfeiture, 9 H. 4. Waste 39. A Copy­hold is not forfeited by Outlawry in a personal Action; for the Lord is not prejudiced by that; And yet the King shall have the profits, by which the Lord is estranged from the Tenement, 5 H. 5. 2. New Book of Entries, 228. Hill. 4 Iac. rot. 172. Com. Banc. in the end of the Case resolution is to this purpose. If Copyholder be summoned to the Court, by common Proclamation or express notice, and he does not appear, it is no Forfeiture. Because it is but a failer of Services, and no deniall; And for that neglect he may be punisht and fined.

Secondly, it was resolved, that non-payment of the rent, although it be a failer of Services, or if he had said he could not now pay if, is not a Forfeiture; But to forge new Customes is a Forfeiture, for that tends to the dis-inheriting of the Lord, Dyer 228. The Case of pay ment of a Fine which admits the diversity appears Cook lib 1. 4 28. Now this inclosure is not a Dis-inheritance, or a voluntary Act to estrange him from his Lord. And then the Custome ought to make that a For­feiture which is not so found. And it was a rule in P. 19 Iac. That a bare Inclosure is not a Forfeiture of a Copyhold. And then it is found, that he shall not inclose without Licence, But it is not found, that if he should inclose without Licence, it should be a forfeiture. And there is neither express nor tacite condition that it should be a Forfeiture. And then it is found that he may amerce and command that the Hedge should be pul­led down upon pain, &c. The intention is not that he had two remedies; [Page 8] And it is not to be found in our Books, that one Act causes a pain, and a forfeiture also. And so the custom shall be taken favourably for the Copy-holder, and strictly for the Lord; for a forfeiture is odious in Law. 4. Rep. 9. There the Custom is found, that not appearing at four Summons is expresly a forfeiture. And to the objection that is made, that he had not any remedy for his Fine; the Verdict answers that, that he may put a pain upon him.

Secondly, he encloses, and leaves three gaps: It was objected, that an Enclosure was a disseisin, ergo a forfeiture. In some Cases that Enclo­sures shall be disseisins there is no question: But there is, if they be En­closures with gaps. The Enclosure that deprives him of all his remedy is a disseisin in Rent, but otherwise not. For Littleton says, if he enclose, that he cannot distrein: I conceive this diversity. If a Copy-holder makes a disseisin of any thing appertaining to the Copy-hold, it is a for­feiture; for then he doth an act that estranges the Lord from his Te­nant; but if the Lord had any profit accrewing out of the Copy-hold, and he disseiseth him of that, Whether you will make that a forfeiture? As if the Lord had herbage out of the Copy-hold, a disseisin of that is not a forfeiture, unless it be particularly by Copy of the Grant. The making of the Ditch is objected to be waste, and therefore a forfeiture: I agree if it be waste, it is a forfeiture. It is not a forfeiture, if a Copy-holder dig a Marle-pit and Marles his Land; for the Land is imbettered by it. It is objected, that it is a forfeiture at Common Law, 22 H. 6. 41 E. 3. waste 821. If Lessee for years plough a Meadow it is not Waste, for it tends to a matter of Husbandry. Natura Brev. title waste. Dyer 361. pl. 12. Lessee for years converts Land to Hop ground: It was the opinion of Popham Lord Chief Iustice, 30. Eliz. that it was not waste. And for that that the Land by this Enclosure is imbettered, it is not waste, and the Lord had no prejudice, because the gaps were left. And the Court said, that it is to be presumed, that all the Land was imbettered by this Enclosure, if it be not expresly shewed to the contrary. Sed adjour­natur, &c.

Ralph Marshes Case again.

ATthome said, that the consideration also is good, and there is a double consideration of the Premises. For she promised to pay that debt, part at Mich &c. So there was a day given, or it was due presently: And that is the consideration: Crook said, that it is no consideration. For it is not expressed that he shewed the account: But that they surveyed it, which is not but an implication that he shewed it: And he said that he intended to sue him, and then he in consideration of the Premises &c. Which was a thing executed before the obligee shewed the obligation to the Obliger, that in consideration of that promise to pay the debt is not a good consideration. In consideration that the Testator is indebted, &c. I will pay at two days is not a consideration. But in consideration that the Te­stator was indebted, and you will forbear, is a good consideration. That you will forbear paululum temporis, is not a good consideration, without expressing for a day, or &c. as it is adjudged, &c. Richardson in conside­ration that the Testator was indebted, is not a good consideration: And then in consideration that he made appear that the debt is due, is not good; for he ought to do that before it can be paid: But more after, &c.

Abree against Page.

ABree brought an Action against Page, who pleads that the Plaintiff had released to him after the Obligation made, upon which Debt is brought: All and all manner of Errors, and all manner of Actions, Sutes, and Writs of Error whatsoever, which the said Iohn for any matter or thing, &c. And I the said Iohn am by these presents excluded of Writs or Sutes, Actions of Error, or Sutes against him the said, &c. Vpon which the Plaintiff demurred. Amhurst said, that the Action is barred. The pre­tence is that that Release extends only to Errors. Littleton said, the Obli­gation makes the Duty presently; And a Release of all Actions shall bar him. 8 Rep. Althams Case. And Bullocks Case, an Obligation shall be taken more strongly against him that makes it. 19 H. 6.42. Two have Goods in Ioynture, and give all their Goods: their several Goods pass also. And if two grant rent, their several rents pass also, according to their several Interests; And then he said it should be a bar of all Actions and Sutes, and that amounts to a Release. 21 H. 6. 51 H. 6. one was bound to save a Sheriff harmless against I. S. And he pleads that he was taken by a Capias, and made an Obligation, and that he kept his day; And that was adjudged a good Plea: Which shews, that words not for­mal may bar an Action, &c. Richardson said, If the Release be of Acti­ons and Sutes Substantive, no question but Debt is barred, and that Déeds (he granted) should be taken more strongly against him that makes them. He agréed to the Cases put by Amhurst. But more af­ter, &c.

Bowett, and Langhams Case.

ELlen Bowett procured a Corpus cum Causa out of the Common-Pleas to the Sheriff of London; who returns that she was imprisoned upon a Sute against her by George Langham as a Feme sole Merchant accord­ing to the Custome there. Now the Truth was, that her Husband being a Vintener was prest by the King to be a Souldier: and goes over-Sea. The Feme afterwards takes an House, and buys Wine of Langham, who trusted her, supposing she was a Feme sole Merchant. Afterwards the Husband returns, and the Wife denies to pay for the Wine; and the doubt was if the Feme was a sole Feme Merchant by the Custome so, or not: and the words of the Custome were read. That where the Wife meddles in a Trade, in which the Husband may meddle nothing, she shall have all advantages, and shall be sued as a Feme sole Merchant, &c. But by Richardson and Yelverton, Shee is not a Feme sole Merchant within the Custome; For her Husband exercises himself the same Trade. And a Feme sole Merchant by Yelverton ought to be the Widow of a Trades­man who takes a second Husband, and afterwards exercises the Trade of the first Husband.

Secondly she ought to be a Feme Covert, and not a Virgin or Maiden.

Thirdly, she ought to be of another Trade than that which her second Husband was: For if she may exercise the same Trade of her Husband when he is over the Sea: the Husband may go over Sea and return with­in a year, and then she is a Feme Covert, &c. And so make her a Feme Sole or Covert at his pleasure. And Richardson and Yelverton said, that that would be a prejudice to all the Wives in London, so that they would never be fréed from imprisonment. But Crook, Hutton, and Harvey to the contrary. And they said that if the Husband meddle with the Trade [Page 10] of his Wife, then she is not chargeable as a Feme sole Merchant; But if the Husband be over Sea, or become Banckrupt or relinquish his Trade, and the Wife exerciseth the same Trade, or they both exercise the same Trade distinctly by themselves, and not meddle the one with the o­ther, She is a sole Merchant; or otherwise it would be a great incon­venience. For the Wife when her Husband is over Sea, would contract and gain much Goods of others into her hands, and the parries shall not have any remedy. But Richardson said, that he who sells ought to take notice, whether she be Feme Covert, or feme sole Merchant by the Cu­stome or not, his peril.

Ayliffes Case.

AN Action of battery was brought against Ayliffe and his Wife, for a Battery done by the Wife upon the Plaintiff. And the plead­ing was, that the Baron and Feme came and defended the force and wrong, &c. And the Baron for his said Wife says, that she is not guilty; And upon that the Issue was joyned, and found for the Plaintiff against him, And in arrest of Iudgement, it was awarded that the Issue was ill joyned; For the Wife there pleads nothing. So there was nothing done at that time with the Sute.

Tayler against Philips.

TAyler, and Margaret his Wife exhibit a Bill in the Council of Mar­ches against Phillips and his Wife; For that the Wife of Philips had sent a scandalous Letter to the Wife of Tayler: And the Letter was written to this effect (ut sequitur) Mrs. Tayler, I have often heard of your clamorous tongue, whereas if you want matter against your Enemies, you exclaim of your Friends, and give out, that I am jealous of my Husband with Mrs. Anne: he was never so precise to take on him to be asha­med how he liked the Border of a Womans Pettycoat; and you being not able to throw the first Stone at him, need not to have been one of his Ac­cusors; Neither know I what he can be accused of, unless it were, for being in your Chamber before you were up: Which I never heard was prohibi­ted to any, neither know I why it should be to him. You may challenge me for a Coward, that I meet you not at the Crosse, as you have challen­ged others, having been a Pupill in the School of Scoulding, and a rare Ar­tist therein, But I durst not have done it, lest I should have been so hoarse, that it might have have been said, I had the Pox. And the Court proceed­ed to the hearing of the matter, and sentenced the Defendant to be im­prisoned; and fined 40 l. to the King, and 40 l. dammages to the Par­ty. And Sergeant Henden moved for a Prohibition for that, that their Instructions are, Whereas there be divers Books, News, and Tales spread abroad, and Libells made, by which the Subjects are abused, and the Peace may be broken, you shall proceed against such Persons, till the Authors be found out, and they be punished by fines, imprisonments, papers set on their breasts, and the like. And he said that those words are not ac­comtable at Common-law; and therfore are not as they seem within their Instructions. But admit that, yet they have not power to give damma­ges to the Party. Richardson said, In the Star-Chamber, libellous Letters, that are spitefull and scandalous to defame any, although that they bear not an Action at Common-law; yet they are punishable there, and also they give dammages to the Party wronged; But there is difference betwéen the Star-Chamber and that, &c. Henden said, that Magna Charta makes the difference. Quod nullus liber homo capi­etur aut imprisonetur nisi secundum legem terrae. So by the Common [Page 11] Law and their instructions, they have not power to give damages to the party. Richardson chief Iustice, said that no prohibition should be grant­ed, for the Fine of the King; for they have power in that Case without question, and to the punishing in that matter. And if they err in Iudge­ment for the Libellious Letter, and adjudge it to be Libellious where it is not, We cannot award a prohibition, nor grant error. But for the damages, that Court differs from the Star-chamber: for the Star-chamber had its power by its self, and differs from the Common Law; But that Court is by Commission, and therefore they ought to follow their Instructions. And therefore a prohibition as to the damages shall be granted. And Yelverton also was of the same opinion; but he said, there was another clause in their Instructions; And for that a prohibition, as to the damages shall be granted, Hutton and Harvey said, That if the sute was by information, than it is clear that damages cannot be given. But it is by Bill, so in nature of an Action; as I conceive, which con­cludes, that they were damnified. But it is now brought too late to grant a prohibition, where the parties have admitted the action: But a day was given to shew cause, why a prohibition should not be granted quoad the damages. And so they concluded for that time.

Note, that it was said by the Court: That if money be lent upon In­terest, and the Scrivener who makes the Obligation, reserves more then 8. l. in the 100. l. That, that is not an usurious Contract. See the cause, &c.

Eaton and Morris [...]s Case.

EAton and Morris being reputed Churchwardens (but they) never took any Oath, as the Office requires, present a Feme Covert upon a Common report for Adultery, &c. And the husband and wife Libel against them in the Ecclesiastical Court for that defamation. And when sentence was taken, and ready to be given for them, the Churchwardens appeal to the Arches: and for that, that that presentment cannot be proved but by one witness, they sentenced the Baron and Feme. And now Ward who that term was made a Serjeant by a special call, moved for a prohibi­tion: but it was denied by the Court; for they were Plaintiffs first. And also it is a cause which this Court had not any Conu­sance of.

Marshes Case before.

MOre of Marshes Case which is before.

Richardson, Hutton, Harvey and Yelverton said, That the conside­ration also is good. For although that it be not expressed that the Plaintiff himself shewed the accounts; yet it appears fully, that they were upon the request of the wife viewed. And it shall be intended by Common pre­sumption that the Plaintiff himself shewed them, for he had the custody of them, and is owner of them. And the Books of Merchants are their secrets and treasure: and they will not shew them by their good will. Now it is not like to the case of an Obligation; for there the certainty of the debt was before, and he was compellable to shew it. But the certain­ty here cannot appear without great search and labour, and there can be no compassion to shew their Books. And by Hutton Iustice: There is no question, but, if the promise had been made after the Sute commenced, it ha [...] been good. No question by Richardson, and it is agreed by all, That if the Defendent had required the Books to be brought to his house, or to another place, it should have been good: And there is not any difference, although the Books were shewen in the shop by the servant; for he per­mitted [Page 12] his Books to be viewed, &c. And Yelverton said, that Beechers Case and Banes Case is more infirm than this Case is: And yet adjudged there to be good: And so it was awarded that Iudgement should be entred for the Plaintiff: Si non, &c.

Of a Communication of Marriage.

A Communication between I.S. and A. was of the Marriage of I S. being possessed of a term for years, and of certain goods, promised to A. that if she would be married to him, and they had issue a son, that he should have the term: If a Female, that she should have the moyetie of the goods. And after they intermarry, and have issue B. a daughter. The husband dies, and B. brings an action upon the Case against the Admini­strator of I.S. By the Court, she cannot bring the action, unless as Ad­ministratrix of A. or in the name of A. And the Case of Stafford was recited. Where there was a Communication between Stafford and a wo­man; That if she would marry with him, that Stafford would leave her at his death 100. l. And after the intermarriage and death of the husband, in an action brought by the wife, the question was, whether the promise was extinguisht by the intermarriage. And after grand disputes, it was resolved, that the intermarriage was but a suspension of the promise. And so it was concluded.

Kitton against Walters.

KItton brought debt upon the Statute of 5. Eliz. cap. 9. for Perjury, against Walters, for an Action of Trespass, for Battery was brought against him by I. S. and he pleaded not guilty, and that the Defendant was brought as a witness: And that he falsely and corruptedly deposed, and did not speak voluntarily, that the Plaintiff in the Trespass was wounded and beaten, &c. And that he could not labour for half a year, &c. And up­on the general issue pleaded, it was found for the Plaintiff; and Hendon moved to have Iudgement. But it was objected, that the party grieved shall not have that Action; for that he did not say, voluntarie deposuit, &c. For although that he falsly deposed, wherein voluntary is not, but a con­clusion, and voluntas ought to be in the premisses: and corruptive does not include that; and so was the opinion of the whole Court. And it was awarded, that the Plaintiff, nil capiat per breve.

A servant of a Bayliffs Case.

IT was awarded by the Court, that where a Servant of a Bayliff of a Franchise was sworn to serve a Process, and by deputation from the Bayliff, he ought not to have served a Process, but to such a sum: And he serves a Process of a greater sum without any warrant, and after le­vies the money, and parts with it: That the Bayliff shall be chargeable, Quod nota.

Beare against Hodge.

BEare was Plaintiff against Hodge for taking of his Cattel. The De­fendent was known as Bayliff to Thomas Wise, who was seised of twenty acres, &c. (whereof the Land in question was parcel) in Fee. And that it was Leased to Harris for 99. years, if he and his two sons should so long live, and rendring a Rent at the four usual Terms in the year; and the best beast at the death of every one of the three in the name of an Herriot, or 5. l. at the election of the Lessor. And now for Rent [Page 13] arrear at Michaelmas, and for an Heriot after the death of Harris, he a­vowed, &c. The Plaintiff confesses the Lease and reservation, and as to the Heriot, he demurred. But for the Rent he said, that he tendered the Rent upon the Land toward the latter time of Michaelmas day: and that none was there to receive it. And that afterwards he tendered it to the Lessor himself, out of the Land, and he refused it; And that after that time no demand was made; but that he, after the tender alwaies was and yet is Tenent, &c. and brings the mony into Court; And upon that he demurred. Henden said, The Avowant may distrein without any new demand; and that Case had been adjudged in this Court before. For although that the Rent be tendered, yet it remains due notwith­standing; and then he is able to distrain. 15 Iac. in this Court, rot. 710. Crowley brought a Replevin against Kingsmill, who avowed, For that the Plaintiff held of him by Fealty and 10 s. rent. And for the Rent he distreyned the Plaintiff. And that at the day he tendered the rent upon the land, & none was there to receive it, as it is said, &c. And upon debate it was adjudged, that he may distrein without demand. 7 rep. 29. Maunds case, you may see that a Rent-seek shall not be distreined after tender with­out demand; For if by his demand he is intituled to his Action, then there ought to be a new Demand, 21 E 4. 17. 7 E 4. 40. 20 H. 6.1. cited in Pilkin­tons Case. If you will be excus'd of the Distress; there ought to be a tender of the Arrerages at the time of the Distress. Richardson, Hutton and Harvey all agree, That the Distress is good to have the Rent, but not to recover Dammages; because he does not all he might do. And Ri­chardson said, That 2 H. 6. 10 H. 6. 20 E. 4. 10 E. 4. and the Case in the Assise, and the whole current of Books was to the same purpose. Harvey Iustice said, that if a tender be upon an Obligation at the day, he saves the penalty; but if another Demand be afterwards, and he re­fuses to pay: he cannot plead unque prist. And Iustice Crook cited a Case in the Kings Bench 16 Eliz. betwéen Cropp and Hambleton, where a Rent upon a Lease was reserved to be paid at Michaelmas. And if by forty daies after, &c. And in the mean time, after the first and before the last, the Lessee tenders to the Lessor himself. And adjudged that it saves the Forfeiture. For it is for his ease, that he ought to tender upon the Land. And by the same reason also, when he hath tendered it to the Person himself, and said that it is uncore prist. and will demur upon that, and not take advantage of his non-tender at the Distress: the Dammages are saved. But Yelverton was against that. For it is agréed, that a Distress is locall, so then we cannot sever Dammages, when the Law hath coupled them, and made incident to the Distress. Sed adjourna­tur, &c.

Tithes.

ONe libells for Tithes of Fish which is due meerly by Custome. And the Defendant pleads, that time out of mind, &c. they have paid no Tithes of that. And Henden Sergeant moved for a Prohibition. And Richardson replyed and said, it is méerly a Customary Tithe, as Rabbits, &c. Whereof no Tithes are due by the law of the Land, and a Prohibition shall not be granted. But all the other Iustices affirmed, that there shall be a Prohibition granted; because that the Custome ought to be tryed by the Common law, and they make a difference betwéen modus decimandi which is also Customary, and where there is a Tithe pre­cedent due, and that modus converts it into another Duty. There no Prohibition shall be granted. But it shall be tryed in the spiritual Court, whether there be such a modus decimandi, or not, And that Case in the Custome makes the Duty it self. But he alleged the modus to be for two pence, and the Parson for thrée pence, shall be tryed by the Com­mon [Page 14] law. And they said, that so was the opinion in the grand Case, of lead ore. And Hutton said, that so it was determined in the Case of one Berry, for tithes of Limekills; which are as Minerals, and are not tithable by the Commmon law. But when the Custome is tryed then they in the Ecclasiastical Court may proceed upon it.

Hartop and Tucke against Dalby.

HArtop and Tucke brought a Quare impedit against Dalby as In­cumbent, and the Issue betwéen them was; Whether the Church of Essenden was appendent to the Mannor of Essenden, or in gross. And the Plaintiff to prove the Appendancy, gave in evidence, that H. 6. seised of the Mannor and Advowson, grants to Margaret his Wife the said Mannor habendum una cum advocatione for her Ioynture, &c. It was said that if the advowson was in gross, it could not pass so, not named in the Premises. But of an advowson appendent otherwise it is. As it was agréed in 38 H. 6. 36. Abbess of Syons Case, which was granted by the whole Court. Henden to disprove that evidence, alleged, That the Advowson being made any time in gross, It can never be appendent a­gain. And he shewed also how H. 3. was seised of that Mannor with the Advowson, and that he granted the Mannor to I. S. for life, excepta ad­vocatione. By which Grant it seem'd to him, that it became in gross. And said that the Iudgement of the Case in 38 H. 8. 38. was for that cause, and that they did not ever find it contradicted. And so totis viribus be maintained that to be in gross, But all the Iustices were against him, And that that is not but a disappendency pro quodam tempore. And so was the better opinions in 38 H. 6. as the Case is in Dyer 33 H. 8. 48. 6. of a Villain. If the King grants the Demesus of a Mannor for life; After the death of the Lessée, it is a Mannor again. And if an advowson appen­dent be granted for life; After the Lessee it becomes an Ap­pendent again. And so if a Mannor with the Advowson descend to two Copartners; And the Advowson is allotted to one, and the Mannor to the other. If there the Sister who hath the Advowson die without Issue: it is then appendant; and yet there was a severance in perpetuity. And Yel­verton went to the Iustices of the Kings Bench to have their opinions. And they all agreed, that it was but a temporal disappendency during the life, without doubt. Bramston said, the Mannor is granted and the Advowson by E. 6. to the Lord Saint Iohn, to be held by several te­nures, The Mannor in Chivalry, and the Advowson in soccage, which is a strong presumpsion, that the Advowson was in gross. But the Iu­stices agreed, that there may be several Services, and yet the Mannor and the Advowson nor severed. And a Mannor may be granted, parcel to be held by one Tenure, and parcel to be held by an other Tenure, and yet remain intire. And afterwards verdict was given for the Plain­tiff, &c.

Viner and his Wife a­gainst Lawson.

VIner and his Wife libells against Lawson in the Councell of York, for a promise to pay 600 l. to the Wife, for her Mariage, [Page 15] And suggested that they could not precisely prove it by one witness, that they might have remedy at the Common Law. But Lawson denyed the promise upon his Oath: and yet they proceeded, and Lawson prayed a prohibition, and it was granted. For if it may be proved by some wit­nesses then it is tryable by an Action of the Case, &c. And so the Iuris­diction of the Common Law is ousted.

Abrees Case.

MOre of the Case which you saw before, &c. Henden argued that that release is but special, and that it extends only to errors. And first, for that the intention of the parties is principally to be regarded. And ex praecedentibus & consequentibus optima fit interpretatio. The pre­cedent clause is only a release of errors, and then the consequent suits: And in the last clause, release all Actions, and suits of error before.

Secondly, a release is particular, and may be by inference of other words have a general sense; yet particular construction shall be made, Nisi impediatur sententia or intentio partium: For that also Suits in the middle of the clause shall have relation to the other words. And to that purpose is, 28 H. 8. Dyer 19. A Grant to the Lessee, that he shall have the Rues for hedges (by the assignment of the Bayliff of the Lessor) and for necessary fuel to burn. And the opinion of the Court was that he should have the fewel also by assignment, 9 E. 4. 43. 6. A man submits himself to the Arbitrament of I.S. de omnibus actionibus personalibus sectis & querelis. And it was ruled that that word personal refers to all. And the Case in question is the very Case as that in reason, 10 H. 7. 8. A man grants the Custody of his Park, and all the Windfalls, &c. And it seemed there, that the grant of Windfalls is absolute: for that, that the intent cannot be otherwise, Pasc. 36 Eliz. banc. Roy. Betwéen Pidgeon and Gibson, Norff. The Case upon the special verdict was in Trespass: and Pidgeon the Father makes a feoffment to his younger son, by which he grants thus, Omnia illa messuagia mea & tenementa in East Bockham, that late were Patris mei, and since in the Tenure of N. D. and C. And it was adjudged, that that land did not pass by that Feoffment. For where particular words are in the end, the middle shall never be taken ge­neral. And so also 8. rep. 150. Althams Case. There it was resolved, that where it had particular words, there all shall be of the same na­ture, &c.

Thirdly, expende circumstantias & intentio nihil intelligetur, which may be intended also in Suits more than in actibus: For will you have Action particular, and Suits general? And so the intention appears in the first word Errors, and the subsequent are but declaratory: And although that Suits is lastly put in the second Clause, yet there it is not but a surplusage; And that which is not released by the first (Suit) cannot be by the second: For it is not but a repetition of that which was before. Richardson, the words are, All Writs, Actions and Suits by error. Without question it shall be intended but errors: Or if it be so: And all Actions and Suits of error, It cannot extend but to errors. Hutton. In that release there is not any word of debt; and therefore it seemed that the intention was not to re­lease other actions, but errors. And it was adjudged in this Court in a Writ of Annuity. A release was pleaded that the Plaintiff acquitted him, of one payment, for half of the year, and released to him all Actions. Suits and Demands; And adjudged, that that release does not bar him, but of the arrearages of a year.

A Quid juris clamat.

IN a Quid juris clamat, The Tenant was adjudged to Attourne. And the question was, whether he might Attourne without being sworn in Court to do fealty to his Lessor. And Brownlow, chief Prothonotary said, That all the Presidents are, that he shall Attourne and do fealty, by which the Tenant was sworn to do fealty: and the fealty was taken for an Authority.

Beare and Hodges Case.

MOre of Beare and Hodges Case, you may see before. Davenport said, that a man cannot distrein upon an actual demand, which ought to be to the person, upon the Land. And for that, the distress is tortious, and damages by the Common Law are given to him, who made the Replevin; But to the Avowant damages are only given by the statute of 7. H. 8. cap. 4. 21 H. 8. 19. Now the Rent is not in question (for it was taken to pay it) but the dammages: and the Tenant had done all that he can: and it is not reason that he pay any damages. And the diversity between a Re­plevin, and debt for Rent after such a tender. That a local tender ex­cuses the damages, appears H. 4.4. Tidthorps Case, 38. E. 3. 13. Debt. An Obligation is indorsed, to pay the money at Easter: and he tenders it at the day to the Obligee, who refuses it because he lives at another place. And now because that no place was named for the payment, the tender was good, and shall excuse him (without any other demand) of the da­mages. Littleton said, that a tender of Homage excuses, until a new de­mand, 21 E. 4.4. And there a difference seemed to some, between fealty and homage. But Bryan said, that a tender of fealty also (until a new request) to his person, excuses damages: because that fealty may be done by Attourney, 22 H. 6.31. 7 E. 4.4. puts the case of Rent to the same intent. Cook, Littleton, 7. 28. Maunds Case. The third resolution is a ground for our Case. There it is said, if Terre-tenant tender a Rent seck, upon the Land: The Grantee cannot demand it upon the Land in the absence of the tenant: that it ought to be to the person upon the land: For what can the tenant do more than he hath done already. And the Statute of Westminster 2. cap. 9. gives ease to the Tenant, When the Lord distreins immoderately and unnecessarily. For an immoderate distress may be the ruine of a tenant: And therefore the Statute says, Nec habeat Capitalis dominus potestatem distringendi tenentes in dominico suo, dum praedict. Tenens offerat ei servitia debita & consueta. 30. Ass. Fitzher. N. B. 69. G. If Cattel be distreined damage feasant, and tender of sufficient amends is made, The Distreiner is liable to damages for the detinue, although not for the distress. And to the same purpose is, Cook lib. 8. 140. Carpenters Case, 5. rep. 76. Pilkintons Case, &c. The second question is, whether a Bayliff, without command of the Lessor, (when he had refused to take the Rent upon a Lawfull tender) may di­strein: And it seemed that he cannot. And the second resolution in Pil­kintons Case came to that question: That a tender of amends to a Bay­liff amounts to nothing: And the question upon a Herriot is, Whether the Lessor may distrein without declaring his election; and it seemed that he cannot: For that is no Heriot which may be seized; As the Case in one Woodland and Mantles Case, there it is certain. And because the Law vests it in him immediatly after the death of the tenant. But so it is arbitrable, and cannot vest before Election: and also the Tenant does not know which he ought to provide before, and declares his election. And it was demanded, for that it is not reasonable that he shall be lyable to a [Page 17] distress, and cannot by any possibility prevent it, 2 Rep. 36. Sir Rowland Howards Case. I cannot finde any president where an Avowry is made upon a disjunctive reservation, without allegation that he had declared his Election. Although that the Lessor in that Case may distrein without de­claring his election, yet the Bayliff cannot: for he cannot justifie as Bayliff for an Arbitrable thing, without express command. Acceptance of Rent by a Bayliff cannot alter the Tenancy. For although that he had power in Law to receive the Rent; yet he cannot by Law alter the Tenency, by his acceptance, without the Lords Command, Dyer 222. A Bayliff may demand Rent, but cannot enter for non-payment without express command: And when he avows, he cannot avow any thing, which doth not appertain to his office. And for that, that it is an arbi­trable thing, which cannot be transferred from the person of the Lessor his Heirs or Assigns, that distress is well taken, &c.

If a Writ of Error was brought in this Court, and the day of the re­turn is long, to delay the party, as if it be more than the next Term, the Court may award Execution, quod nota, &c.

Gammons Case.

ONe was obliged in the Ecclesiastical Court not to accompany with such a woman, unless to Church or a Market overt. And afterwards he was summoned to the Ecclesiastical Court, to say, whether he had bro­ken his Obligation or not: And Ayliffe moved for a prohibition, which was granted. For that that the forfeiture is a temporal thing; And it does not become them in the Ecclesiastical Court, to draw a man in ex­amination for breaking of Obligations, or for offences against Sta­tutes.

Dame Chichley against Bishop of Ely.

DAme Dorothy Chichley brought a Quare impedit against the Bishop of Ely and Marmaduke Thomson: And declared that Thomas Chich­ley was seized of the Advowson of the Church of Whiple in Cambridge­shire, And presented Marshall, and died seized, and the Advowson descend­ed to Thomas his son, who by Indenture granted it to East and Angel, and to their use, and the use of the Plaintiff for life. And he being seized of the Church, it became void, &c. But Thompson pleads that he is Parson imparsonee ex praesentatione of the King. And confessed that he was seized as aforesaid; but that he was seized also of other Lands in Capite, and dyed, and that his son Thomas was, and now is within age, which is found by Office. And so the King by his Letters Patents after avoydance pre­sents Thompson, who was instituted and inducted: Absque hoc, that Tho­mas Chichley granted by his Indenture to the use of his wife, &c. And the Plaintiff replies null teil record: Vpon which the Defendant demurs. Atthowe for the Defendant: Although the Plaintiff may have a Writ to the Bishop when his Title is traversed. And admit there be no Inquisi­tion, Yet the King may present before Office found, 20 E. 4. 11. An Advowson being void is not but a Chattel, and for that it is vested in the King without any Office. And you may see many Cases to that pur­pose. Richardson said, If it be not by the Statute, 32 H 8. The King may grant Wardship of Land before Office. Atthowe. Also there is Traverse upon Traverse, which should not be. Hendon argued for the Plaintiff: And he says he is Parsona imparsonata, and does not say, be­fore the purchase of the Writ. For the Incumbent by the Statute of 25 E 3. cap. 7. cannot plead unless he be Incumbent ante diem impetrati­trationis brevis, unlesse he be Incumbent pendente lite he can­not [Page 18] plead, &c. Hutton. If one be presented, instituted, and admitted be­fore the Writ, and inducted after and before his Pleader, He may plead well. And it was resolved by the whole Court, That the pleading of the Parson was good, without the words, Ante diem impetrationis brevis: And that all the Presidents are according to that. But more after­wards, &c.

Alice Readngs Case.

ALice Reading brought an Action upon the Case against I.S. And de­declared whereas she was a Maiden, and had many Suitors, the said I. S. said, That Alice Reading was with childe, and did take Physick to kill the Child. Vpon which words, divers men refused her. And upon not guilty pleaded, it was found for the Plaintiff. Finch Recorder moved, that those words were not actionable; For that, that it is not said precise­ly, that she took Physick to kill the childe; and that the Physick might have such an operation without her desire or purpose: and also there is not any Suitor in special named; And as it is in Anne Davyes Case, 4 Rep. 16. 6. where it ought to be proved precisely to the Iury, that such a one was Suitor, and refused her. But here there was no such proof. And he alleged in the Case of Sell which was adjudged. Where one declares that he endeavoured to mary a Woman, and that she refused him, up­on slanderous words. And it was adjudged against him; For that, that a Conatus is not sufficient, but yet Iudgement was given for the Plain­tiff, without any reason alleged. Cook lib. 4. 16. 6. The Lady Cock­ins Case.

The Case of a Recusant convict.

DEbt is brought upon an Obligation; And the Defendant pleads that the Plaintiff is Recusant and convicted according to the Sta­tute of 21 Iac. cap. 5. and demanded Iudgement of the Action. The Plaintiff replies, Nul tiel Record. And a day was given to bring in the Record. Crowley Justice demanded, what course he would take to make the Record come in: And said that the Indictment was before the Iustices of Peace. And the Court said that the Defendant ought to have pleaded the Iudgement if he shall be answered; For the dis­ability is not but quousque, &c, As of an excommunicate Person. 8 E. 3. Crook Iustice. If a Plea be in disability of the Person and be pleaded in Bar, it is peremptory. And so was the opinion of the Court. And the Debt of a Recusant is not forfeited to the King, as in Outlary. But if he fail of payment of the Penalty imposed by the Statute; Then, &c. And the Court said that if Nul tiel Record be pleaded in Bar, it is an Issue, and Iudgement shall be given upon failer of it. And the direction of the Court, for the bringing in of the Record was, That a cer­tiorari should be directed out of that Court, to the Iustices of Peace where the Indictment was taken. For Presidents were alle­ged, that that Court sent a Certiorari to the Iustices of Assise (a fortiori) to certifie that in the Exchequer, and so come by times into that Court, &c.

Creedlands Case.

CReedland Administrator durante minori aetate of a Son of his Bro­ther; and the Son died, and made the Wife of Hindman his Exe­cutor, who called Creedland to account in the Spiritual Court for the Goods. And he pleads an Agréement betwéen him and Hindman, and that he gave 80 l. in satisfaction of all Accounts. But they did not accept [Page 19] the Plea. For that a Prohibition was prayed to be granted. Richardson, If the party had received the mony in satisfaction, for which there shall not be Prohibition granted, but if there had béen only an agreement, without payment of mony, then otherwise. Crook. It is a spiritual mat­ter, and they having Iurisdiction for to determine of all things concerning that. But the agreement prevents, that it cannot come into the Spi­ritual Court, &c.

Giles against Balam.

GIles libells against Balam before the High Commissioners, for an as­sault made upon him, being a spirituall Person. And Atthowe pray­ed a Prohibition. For that, although their Commission by express words gives them power in that Case, yet that Commission is granted upon the Statute of 1 Eliz. And it is not within the Statute, although it be within the Commission, yet they have not Iurisdiction. The words of the Statute are, That such Iurisdictions and Privileges, &c. as by any Ecclesiastical power have heretofore been, or may be lawfully exercised for the visitation of Ecclesiastical Estate and Persons, and for reformations of the same, and for all manner of Errors, Heresies, Schismes, Abuses, Offen­ces, Contempts, and Enormityes, &c. Those words extend only to men, who stir up Dissentions in the Churrh, as Schismaticks, or new-fangled Men, who offend in that kind. Henden Sergeant: The Sute is there for reformation of Manners; and before that new amendment of the Commissions, Prohibitions were granted, if they meddled with Adultery, or in Case of defamations. But now by express words they have power of those matters; And that matter is punishable by the Com­missioners for two Causes.

First, there is within the Act of Parliament by the words annexed, all Iurisdictions Ecclesiastical, &c.

Secondly, It gives power to the Commissioners to exercise that; And that is meerly Ecclesiastical, being only pro reformatione morum, &c. The King by his Prerogative having Ecclesiastical Iurisdiction may grant Commissions to determine such things, 5 Rep. Ecclesiastical Ca­ses, fol. 8. And Richardson said the Statute de Articulis Cleri, gave Conusance to the Ordinary for laying violent hands on a Clerk. But you affirm that all is given to the Commissioners. And for that they should take all power from the Ordinary. But by the Court, The Commissioners cannot meddle for a stroke in Church-land, nor pro substra­ctione decimarum. And yet they have express Authority by their Com­mission; For by that course, all the Ordinaries in England should be to no purpose. And so upon much debate a Prohibition was grant­ed.

On an Arrest on Christen­mas day.

It was said by Richardson, chief Iustice; That upon arresting a man up­on Christmas day going to Church in the Church-yard, He who made the arrest may be censured in the Stat-chamber for such an Offence. Quod nota.

It was also said by Richardson, If a man submit himself out of the Di­ocess to any Sute, that he can never have a Prohibition. Because that the Sute was not according to the Statute 23 H. 8. commenced within the proper Diocess; as it was adjudged. Quod nota.

Manser against Lewes.

MAnser brought debt against Lewes the Bishop of Banger, and had Iudgement and a fieri fac. upon that to the Sheriff of Middlesex, who returns, That he was Clericus benefaciatus habens nullum Laicum feodum. And Hitcham Sergeant to the King, moved for direction of the Court, what Process ought to issue, or may have a Writ to the Metropolitan, to make sequestration; as it is 21 H. 6. 16, 17. 34 H. 6. 29. Richard­son said, If you can satisfie us, That the Sequestration ought to be a­gainst the Bishop, as against a Clerk; Then the Metropolitan shall do execution. Hutton said, A Bishop had Temporalties, and for that the Sheriff ought not to return nollum habet Laicum feodum. Richardson demanded whether the Statute of Westm. the second, which gives Ele­git extends to the Temporalties of a Bishop. Hutton not. Harvey and Crook said, That he ought to have first a Testatum est, and then we may dispute of that. But Hitcham doubted whether a Testatum est may issue to Wales. Richardson, an Elegit may issue, and why not then a Testatum est. And they in the Kings Bench grant it without doubt.

Stevens against the Bishop of Lincoln, &c.

STevens and Crosse were Plaintiffs against the Bishop of Lincoln, Holms Incumbent, and Holsworth Defendents in a Quare impedit, And the issue was where the Prochein avoydance. It was given in evi­dence, that a Feme was seized for life of the Advowson: And he in re­version in Fee, being an Infant, grants the prochein avoydance. And after when he in the remainder came to full age: He reciting that grant, concessit & confirmavit praedictam advocationem habendam quando con­tigerit vacare. And afterwards the Wife dies, and the Church hap­pens to be void. And it was said by Davenport; That that is not a new Grant, but only a confirmation. Crook Coo. lib. 6.14. Treports case; Tenent for life, and he in remainder makes a Lease; if the Tenant for life dye, the Declaration should be that he in the re­mainder made the Lease. And so also by all the Iustices, it should be a confirmation, during the life of the Feme.

If Iudgement be given in an action at Common law; the Chancellor cannot alter or meddle with the Iudgement given against him. But he may proceed against the Person for a corrupt conscience; because he took advantage of the Law against his conscience, quod nota, &c.

William Watsons Case.

AN action of Battery was brought against William Watson for bat­tery committed by him insimul cum I. Watson. And Iudgment was given against him, and dammages and levyed and payed to the Plaintiff. And after in another Action which was brought against I. Wat­son, and he also was found guilty. And Diggs moved in arrest of Iudge­ment, for that that he had recoveted, and had execution against W. Wat­son. But by the Court, Where several actions are brought against two for the same battery, and a recovery is had against the one, and an action is brought against the other, and that found also, The Court can never intend that to be the same Battery Because he may commit 20 Batteries in one day. But if he may take any advantage of the first recovery it ought to be shewed in pleading. But if there be but one O­riginal against both, and several Declarations produced, when he hath [Page 21] recovered, he hath dammages against the other: But if he recover against the other before he had execution against the first, Then he had his election to have whether dammages given against the first, or the dam­mages given against the other. And Coo. lib. 11.56. Heydons Case, by Richardson is to the same effect,

Eve against Wright.

Eve brought a Replevin against Wright who was known as Bayliff to the Lord Peters. For that the Lord Peters had a Court Léet within the Mannor of Writtle. And that he distreined for an amerciament up­on the Plaintiff at that Court Leet of the Lord, &c. And upon issue that he had not such a Léet, The Iurors found that the Lord Peters at the time when, &c. had a Leet within the Mannor, and that the Tenants ought to come to his Léet. But also they found that the Warden and Fellows of New College in Oxford had a Rectory also within the Man­nor of Writtle called the Roman fee: And that they time out of mind, &c. had a Léet within that Rectory, and that the Plaintiff is a Resiant within the Roman fee: But whether upon the whole matter, the Lord Peters had a Leet upon all the Resiants within the Mannor of Writtle, they prayed the discretion of the Court in that. And it was said by Richardson, That the matter is found expresly for the Lord Pe­ters. And if the Court séemed to be agréed, then he assess'd damma­ges, and that Verdict was clearly for the Defendant. And if the mat­ter in Law might well come in question, as the Iurors intend (scilicet) whether a Person will be compellable to two Léets, yet Iudgement shall be given for the Lord Peters. For it might be a general Leet of the Hundred, or a special Leet within a Mannor within the Hundred. As it is expresly 21 E. 3.34. And the Case of the Countess of Northumber­land and Devonshire, was in this Court before this time agreed. Crook Iustice, 18 Iac. Banc. Reg. One Cooks and Sables Case, there was agreed to this purpose. Though a man is not compellable to be at­tendant to two Leets, although they be held at several daies; Yet by that Custom they may be attendant. Like to Walgraves Case which was ad­judged in this Court; That a Mannor may be held by Copy of another. And that the Lord of a Copyhold-Mannor may grant Copyhold. And this Iudgement was affirmed good in the Kings Bench in a Writ of Error. For Custome hath abolisht that; And the opinion of the Court was, That he cannot be attendant on two Leets, if they be held at se­veral daies. It was said by Richardson, That the Lord of the Ro­man fee, shall not be Subject to the Leet of the Lord Peters. As ap­pears by 21 E. 3.33. And Crook said, That that Book was good Law. For there when the party is amerced in the one Court, he cannot be punished in the other Court for the same offence. And afterwards Ri­chadson and the whole Court said, That he himself shall be subject to a­nother Court, for his resiance, or otherwise, he should be exempt from every Leet.

Humbletons Case.

MOre of this you have before. Now they afterwards come, and the Case was recited in some thing different from the former (scilicet) That there being such a Communication as afore, the consideration was, That Palmer having now brought an Action against him, he should de­fend the said Sute in maintenance of their Tytle of Common, and that im­mediatly after Iudgement given, he should pay him half his costs or 40 l. Vpon which this Assumpsit is brought. And the Issue was, Whe­ther [Page 22] he defended the Sute in maintenance of their Title of Common, and it was found against the Defendant. And by the whole Court, the Plaintiff had well declared the consideration. For the words are that he maintain the Title against Palmer; for the promise was after the actti­on brought. And the Plaintiff is not to prescribe what Plea hee'll plead; but that he defend that Sute. And then when Palmer is not owner of the Soyle, as appears in the evidence in the Kings Bench. And so if a pretence to common fail, he should be punisht for a Trespass where he ought not, Palmer being an Introcer upon the King. And every Com­moner may break the Common, if it be inclosed; Although he does not put cattel in immediately. But he may infriender by the other Common­ers or his Tenents, and his Title of Common only excuses him of the Trespass. And also the Iury had found that it was in maintenance of the Title of Common expresly. And so Iudgement was entred for the Plain­tiff, pleno consensu.

Dorothy Owen against Owen Price.

DOrothy Owen brought an action of the Case against Owen Price up­on a trover of Conversion of one Load of Wheat, and one other of Barley, within the Rectory of Broody. And upon not guilty, the Iu­ry found a special Verdict to this effect (viz.) Marmaduke Bishop of St. Davies seised of the Rectory of Broody, and a Mannor parcell of the Bishoprick, 3 August. 27 El. makes a Lease of them being formerly demised to Anne-Davyes, and the two Daughters P. and C. habendum a die datus for their lives successively, viz. to A. and her Assigns, for her life, rendring the antient rent; and afterwards the first of September 27 El. makes a Letter of Attorny to I. S. to enter in the Rectory and Mannor, and there to deliver seisin secundam formam Cartae, which he did accordingly. The Lease is confirmed, the Bishop dies, and Wilburn his Successor accepts the rent of A. and without any entry makes a se­cond Lease for two lives to the Defendant, and he is translated. Laude the next Successor before any acceptance makes another Lease for three lives, to the Plaintiff. And the Defendant took and converted the Grain, &c. Finch the Recorder for the Plaintiff, who endeavoured to destroy the two first Leases. And as to that, the first Lease is not war­rantable by the Statute, 1 El. that depends upon consideration of two things.

First, Whether the word Successive so makes a Limitation of a Re­mainder &c.

Secondly, Whether the Lease in Remainder be out of the Statute 1 El. also that I ought to maintain, That although the Lease is not war­ranted by the Statute, yet it is not void, but voidable by the Successor, And that also contains two points.

First, Whether it be void by the Common law (scil.) When a Lease is made to two habendum a die datus, and livery be 3 daies after by Attorney be not good.

Secondly, Whether it be absolutely void by the Statute. As to the first, a Lease succcessively habendum (viz.) to A. and her Assigns for her life. That Habendum well settles the Estate by way of remainder, and it is not a Ioynt-estate. 8 E. 3. There the doubt is first put, but the diffe­rence is, Where it is habendum successive generally, then it is a Ioynt-estate; But if it be with a reference and declaration, it is a good remainder. Br. 104. successive generally does not make any remain­der, unless in case of a copyhold sibi & suis make an inheritance, 30 El. in Banc. Roy. 8 Rot. 856. The Lord Sturton makes a Lease to Tho­mas [Page 21] Hubhard, habendum to him and two others (scilicet) successive for their lives, and to the longer liver of them. And it was adjudged, that none, can take by that Déed, but Thomas Hubbard only; Who is only the party named, and that it is no remainder, for it is not made certain, who begins to take by the Remainder. Greenwood and Tilers Case in the Kings Bench. There such a Lease is made, and the word Successive comes after the limitation of the Estate. And the Iudges gave the difference between this Case and Hiliards Case. But after in the Exchequer-Chamber, it was agreed to the contrary. So that Suc­cessive put generally does nothing; But when it is shew'd who takes first, then it makes a Remainder. Dyer 361. habendum successive, prout nominatur in Indentura. It was ruled that that was a Remain­der. And this Case is more strong, for every one is named in his or­der. And then if it be not a Ioint-estate, but in remainder, it is not warrantable by the Statute of 1 El. 6. Rep. Dean and Chapters Case of Worcester. And that Statute had relation to the Statute of 32 H. 8. of making of Leases; For the Statute of 1 El. ought in reason and equity to have the same constructions, as the Statutes aforesaid; and so it had been adjudged in one Wheeler and Danbyes Case. Then that Lease although it be void, yet is not absolutely void, but voidable, &c. And as to the point in Law, the Livery is good as it seemed. But now if there was a Lease for life, or a Feoffment de die datus, and Livery made the same day, by the Feoffor himself or his Attorney, that it should be void. For the day of the date should be excluded, and the Livery cannot operate in futuro; For it is res ponderosa, and it can ne­ver expect and be in suspence. 2 Rep. 55. Bucklers Case. But I con­fess in this last Case, a favourable construction ought to be made, where the Possession had long continued according to the letters Patents; Which should intend that the Livery was in the same instant; And in a thing that lies in Grant, the same construction is made; as if Rent in Common in esse should be granted, de die to come, the Grant is void, Bucklers Case before. H. 8 H. 7. 33. 8 H. 6. 35 coment. 145. Throg­morton and Traceys Case, agrees the difference of a Rent granted de novo, and a Rent in esse. 9 E. 2. tit. Dower. So that a thing grant­ed cannot be, to begin at a day to come; But not by the reason only given, that he cannot reserve a particular Estate to himself; But be­cause it is a Frank-tenement which ought to pass presently, Pasc. 5: Iac. Kings Bench, Sir Robert Iames Case. In a Replevin against him and Adams it was agreed; That if a Reversion be bargained and sold at a day to come for years, it is good. And so also is Sir Rowland Haywards Case. 2 Rep. 35. If a Feoffment or a Lease for life was a die datus. If the Lessor or a Person the next day make Livery it is good without question. For the absurdity that a Frank-tenement should be in sus­pence is not so: for the life is given by the Livery after the date. And there is a great difference between things that lye in Grant, and a Fe­offment. For in Case of a Grant, that is a die datus, it cannot be made good. In Case where a Feoffment is made, the Deed is the evi­dence, and all is not done before the Livery. But in the other Case af­ter the Livery, nothing is to be done by the other, And that is the reason of Buckleys Case, That an attournment cannot make the Grant good, or the form of a Deed. But where Livery is, it passes by Livery only, where no Estate is mentioned. Also one Bowles and Smyths Case. The Prebend of Bowe makes a Lease for 3 lives, a die datus, and makes Livery after the day; Adjudged that the Lease and Livery were good; as it is in Greenwood and Tilers Case in the Kings Bench, Trin. 10 Iac. rot. 1039. & 18 Iac. Argued at Serjeants Inne. One Will. Long, and Alice his wife, by Deeds makes a Lease to Fisher and Anne his Wife, and [Page 22] Ioan his Daughter, habendum at Michaelmas next after the date of the Indenture, for lives successively. The Lessor and his wife after the day past makes livery in person, secundum formam chartae. Longe dies, and Alice receives the rent of Fisher. Fisher and his wife die. Alice makes a Fe­offment to I. S. Greenwood the Lessee of Ioan, brought an Eject. firm. against Tyler the lessee of I. S. And these points were resolved, That the livery after the day, made the lease good, which is the point now single in question.

2. Alice and Ioan cannot take jointly.

3. That Ioan cannot take a greater Estate than for her own life, and not pur autur vie. For it was not the meaning of the Deed. But there they held, that the Successor after the lives, was the Remainder. But after­wards in a Writ of Errror it was denied.

4. That that acceptance of the rent tyes the Wife; Which could not be unlesse the rent remain good. For the assent ought to be manifest by Deed. So that the Deed is good to direct the estate. and prove the Assent. For otherwise the Feoffment so had avoided the lease. But where the Person is disabled it is otherwise. As if a Feoff­ment be made by a Feme Covert, and livery made by Attorny, the Deed is void.

But now the grand doubt is, whether the livery after the day by Attor­ny be good. I will agree that if the letter of Attorny was made the same day, that the deed bore date, the livery is void. For it shal not be in the pow­er of an Attorny to invalidate or validate the lease made by an other. So if a letter of Attorny be contained in a Charter of feoffment, or be in another Deed, delivered at the same day; The delivery upon that Deed shall be nought. And the Attorney by his livery cannot make the lease or fe­offment good, no more than (in Bucklers Case) an atturnment can make a Grant good. 9 Iac. com. banc. rot. 1414. Walter, and Dean and Chapters Case of Worcester cited before. In a Writ of covenant. There a lease was made by E. for three lives bearing date the 10 of Novemb. 42. E. and a letter of Attorney to deliver seisin. The Attorney delivered seisin a year after, when two rent daies were incurred. And it was doubted whether that livery was good: because that two rent daies were passed, before he had executed his Authority. And it was adjud­ged good. And it was not like the Lord Cromwells Case, 2 Rep. Where a performance of a Condition for the avoidance of an advowson was void, no time being limitted. For in Case of authority, it may be executed 10 years after. So that what the Feoffor himself may do, he may give au­thority to another to do that. For if he be bed-rid, or other infirmity, shall the law so fetter him, that what he can do himself, he cannot in the same Case do by any other? For although you may say, that he may make a new lease: yet perhaps he is tyed by Covenants or Obligations so, by which he shall be worse intangled. And the reason of the expectancy of the Frank-tenement also, which an Attorney may make good or bad; a lease of another is included. Because where it is mischievous to none, the law does not envy the Ease of the party, as Combes Case is. A Sur­render, by an Attorney of a Copihold is good: and we can (you know) appear by Attorney in actions, and acknowledge Iudgements. But it will be objected, that livery by Attorney is not good without a Charter of Feoffment, as Kirkby said, 16 H. 7. fol. 51. Plo. 6. And if those Books are not law. Yet Greenwood and Tilers Case, before recited, will re­solve that doubt; That the Deed is not void if the livery be after; and if the Entry be presently, he is a Tenent at will, or a Disseisor, as it is in Bucklers Case, For it cannot be made good by any thing after. Yet the Déeds remain, or otherwise his acceptance did not bar him. I confess that an Authority to make livery cannot be made by Paroll, as [Page 23] 10 H. 8. 11 H. 4. for it may be revoked by Paroll. As a Will which cannot be made but by writing, yet it may be revoked by Paroll. 26 As. But an authority to make a Lease is made by Paroll, 30 E. 3.31, 32. If a Déed purporting an Estate in Fee simple be read to the Feoffor, who is an illiterate man, to pass only an Estate tail; And a Letter of Attorney was to deliver seisin secundum formam Chartae, which is well read to him; Yet it was resolved that all is void. And that he may plead it was not his deed, to the letter of Attorny. For if the Deed be void, the Let­ter of Attorney which releases to it is void also. But I conceive, if it be put in a Deed that gives Land a die datus, and the Attorney authorised by express words, delivers seisin three daies before; that livery may be good. And then it is more strong when he appoints his Attorney after the day; as it is in this Case. A Feoffment made from a day past is good, and the time before the livery is idle. And for another reason in Case of Assurances such nice constructions ought not to be made. And because there is no difference whether livery be made in Person or by At­torney. Now there is a difference between an Authority and Convey­ance, H. 20. & 40 Eliz. in an Ejectione firm. in this Court, Marriots Case. A Charter of Feoffment was made to the Lessor of the Plaintiffs, 10 Septemb. And the Feoffee reciting that that Charter was made the 11 of September, authorised him to take livery secundum formam Chartae. And it was resolved, because the date was mistaken, although all other circumstances agreed; Because that the authority ought to be taken strictly, that that is a void livery. But in Dyer 116. A Lease is made the 30 day of August for 21 years, and afterwards the Lessor reciting that the Lease was made the 6th of August, demises the Land habendum after the first Lease determined. And it was resol­ved to be a good Lease: because that the beginning and ending of the Lease agreed; And in the Case of Marriot, it was resolved.

Secondly, That an Attorny cannot be without Deed.

Thirdly, Although that the Feoffor in person makes livery, yet it is void; Because that the Attorney cannot take the livery upon that Deed without that authority. But where that one may do that thing himself, and he gives the Attorney the same authority: It is all one if Feoffment be made to I. S. and I. S. makes an Attorney to take livery, whereof livery is made, yet is good; And it is all one, as if livery had been made to I.S. himself. 19 H. 6. A Feoffment upon Condition that he enfeoff I. S. void by the Statute of 1 Eliz. or voidable: and it seemed it was but voidable by the Successor, by entry or by action. You may sée that the words are as plain as may be. They shall be utterly void to all intents and purposes. But quid haeret in litera. For her meaning was, That it shall be void by the Successor, and that constructi­on had alwaies been made 3 Rep. 19. 11 Rep. 73. So the Statute 23 H. 6. of Sheriffs had been expounded. 7 E. 4. 4. There cannot be non est factum pleaded. And upon the Statute of Vsury; That an usurious contract shall be void; Yet the Statute ought to be pleaded. Acts of Parliament where there are many doubts, shall be expounded by the Common law; For that, that at the Common law a Free-hold cannot he helped but by Entry. 11 H. 7. There is a diversity between a Lease for years, and a Lease for life. Dyer 222. And it is the dignity of a free-hold to reduce it by free-hold. Then if it stood with the Com­mon law; It is not to be void without Entry. For as a solemn Ceremo­ny created, the same must defeat it. The Statute shall be so expounded. And if it was in Case of a lease years of a Bishop, it shall not be void without Entry. 3 Rep. Pennants Case, Dyer 229. 8 H. 5. 11 E. 3. Commen. 139. It was never the meaning of the Act to make [Page 24] it actually void. For if the words are pursued strictly, then it shall be void immediately against the Bishop himself. Then the Successor in lieu of a benefit, shall take an advantage of the Statute; For he can­not make Leases but of things usually demised, 32 Eliz. Sale and Sale against the Bishop of Coventry in a Quare impedit. It was adjudged, That a Quare impedit well lies by an Executor for disturbance made to the Testator. And also that a Lease for years is good, notwithstanding the Statute. The Statute does not intend the benefit of the Lessee, but of the Successor himself: And the Successor had his Election to accept the Rent or the Land: And if it should be voyd, his Election is gone. Tallen­gers and Dentons Case 4. Jac. A Lease is made by the Bishop of Car­lisle, of the Tithes which is out of the Statute: And there it is void against the Successor. For that, that he hath no remedy, for the Rent re­served upon it. And that point is so adjudged upon the Statute of the 13 Eliz. Walters Case before resolved, that a Lease made by Dean and Chapter, not warranted by the Statute, is but voydable against the Successor, Pas. 6 Iac. rot. 1041. Wheeler and Danbies Case: Robert Bi­shop of Glocester, 30 Eliz. makes a Lease to Iasper, habendum a die datus, to him for life, the remainder to William, rendring the ancient Rent. The first Lessee dies, the Successor having notice of it, and that divers Rents were behinde, commanded his Bayliff, that he should receive the Rents. The Bayliff enters them, and receives Rent of that Lessee, the Bi­shop having notice of it. And these points were resolved.

First, the Iury finding a Lease, a die datus, might be intended good, for that the Entry was made after the day: yet the Iury finding a thing impossible, does not conclude the Iudges.

Secondly that a Lease in remainder is not warranted by the Statute, 1 Eliz.

Thirdly, that the Lease was but voydable by the Successor: for the Statute was made for the benefit of the Successor, but the grand Que­stion was, of the manner of acceptance, and resolved.

Fourthly, that the acceptance binds the Bishop, and the Authority gi­ven to the Bayliff, and also his receipt. For it differs where the Bayliff of his own accord receives Rent. Dyer. And they also say, that that was to perfect an estate setled. And it differs from an Attournment, which is to perfect an estate setled: For there notice is requisite, &c.

Gammons Case again.

HEndon said, that a Scire facias does not lie upon that record: because an action of debt well lies: For no president can be shewn, that a Iudgement given in an inferiour Court, may be executed so. For first, that Court shall not make an Instrument to execute Iudgement given in another Court. It is seen that an Attaint lies of false Iudgement given in an inferiour Court. Take the Case in 14 H. 4.4. And so if issue be joyned in an inferiour Court without custom: It shall not be removed to be tryed so, And so it is our Case, &c. Secondly, the Statutes do not give them power (viz.) 26 H. 8. & 34 H. 8. makes the matter clear that it cannot be. Error in an Assize before the Iustices of Assize, will not lye in this Court. For Iudges Itinerant are superior. And those Iudges are appointed by Act of Parliament; and so the Iudges also in Wales are by Act of Parliament: And having power a Oyer et terminer. It is not found that after Iudgement a Certiorari had been received to remove the Record out of an Inferiour Court: And the mischief would be, if Iudge­ment should be given for 20. l. it should be executory through all the Realm, where they have but a special Iurisdiction. And also the tenor of the Record is only removed, and execution cannot be out of the tenor of the Record. Dyer 369. Plow. 52. Richardson. The question is, whe­ther [Page 27] when the Record is so removed, whether it shall be idle: If Iudge­ment be given in an Inferiour Court, which holds Plea by prescription, or by grant, and removed by Writ of Error, if the Iudgement be affirmed we may award Execution. 16 Iac. There is an express president of a Iudgement in an Inferiour Court and a Scire facias is granted so. And also a Scire facias is granted in lieu of an action of debt. For by the Com­mon Law he might not have a Scire facias after the year; but an action of debt. And by the Common Law debt lies in that Case. Harvey and Crook Iustices, said, that Court shall not be an Instrument to execute Iudge­ment in an inferiour Court, which they cannot. And also the Land of the Defendant shall be lyable to an execution in any place in England: where before only the Land within the place was lyable. And also the purchaser could never finde out what executions might be upon the Land. Richardson said, that the mischief would be great on both sides. For other­wise what Iudgement was given: The Defendant would remove his goods out of the Iurisdiction of the Court, and then the Plaintiff had no remedy but by new original. And Crook Iustice. If a man brings an action in a Court, he ought to examine what the end of that will be. For it is a president, a man ought to respect things in their end. For it is his own folly to commence an action, where he cannot have execution. For that, he may commence his action, and have execution in any place in England, And although that a forrain Plea in an Inferiour Court may be tryed so, yet it is by Act of Parliament (viz.) 6 E. 1. 12. which proves by the Common Law there was no remedy.

Tithes of Pidgeons and Acorns.

A Parson Libels in the Spiritual Court for Tithes of Pidgeons and Acorns: And the Defendant prayed a prohibition: Because the Pidgeons were spent in his own house: and the Acorns dropt from the Tree and his Hogs eat them. And it was said by the Court, Acorns are Tithable, 11 Rep. 49. But then they ought to be gathered, and also sold. And a prohibition was clearly granted.

Thomas Wilcocks Case.

MOre of the Case of the Vniversity of Oxford.

Thomas Wilcocks, Mr. of Arts in St. Mary Hall in Oxford, was sued in the Chancellors Court there, by Anne wife of Ralph Bradwell and Christian her daughter; For calling the wife Bawd, and old Bawd; and the daughter; Whor., and scurvey pockey-faced whore. And they procured two Sentences against Wilcocks, and upon them he had two prohibitions: And Davenport moved for a Procedendo: for that, that by their Charter which was confirmed by Parliament, The Chancellor or his Deputy shall have Conusans of all causes personal, where one of the parties is a Scholar, And the Charter was shewed in Court, which was to this pur­pose, That they shall hold Pleas, &c. or Secundum morem Universitatis, or Secundum legem terre. And the custom was to proceed according to the Civil Law. And it was resolved:

First, that the King by his Charter deprives the subject of his Liber­ty and Priviledge of Tryal: As he cannot by his Letters Patents alter the nature of Gavelkinde Land; but by prescription he may alter it in particular places: As 9 H. 6. 44. In corpus cum causa to the Chancellor of Oxford, was certified that the prisoner, Pro extensione detentus fuit & convictus. And an exception was taken for that, that he should have been indicted and convicted: and it was answered that it was Mos Universitatis, [Page 28] And by Hutton Iustice. That custom was to be intended to be by pre­scription. But so the Charter is confirmed by Act of Parliament, it is as good.

Secondly, that there is a good cause of action in the Chancellors Court. For Wilcocks who is one of the parties is a Scholar, and the Charter was only made for the ease of Scholars, that their Studies might not be inter­rupted, by Sutes in other Courts: But then he ought to be a Scholar re­sident in the Vniversity at the time of the Sute commenced there. And he ought to be only one of the parties. And for that, if another be joyned with him, he shall not have the priviledge or benefit of the Charter: as it is 14 H. 4. 21. and by Richardson chief Iustice, that is not a priviledge which may be waved: for every person may Recusare jura introducta pro se: But that it was an exempt Iurisdiction, and differs where the privi­ledge goes to the person. As if a Clerk, in his Court will sue in another Court, or suffer himself to be sued, that is a Waver of the Privi­ledge.

Thirdly, that a Proeedendo shall not be granted, for that, the Charter is not pleaded; for the Iudges give Iudgement of the Record, and the cause of their Iudgement ought to appear by pleading of the Record. And also a prohibition is granted where by Demurrer, or by Pleading, and not by verbal surmise there ought to be a discharge. And in the case of a prohibition, It is not like the Case of 35 H. 6. 24. Where Conusans is one time allowed by Charter shewn, and another Record there should be allowed without demand, without other shewing: But Yelverton Iustice, to the contrary, That it might be remanded upon pleading of the Char­ter. And he said, that there was a difference, where the suggestion was upon matter of Fact, as prescription, &c. Where an issue may be taken, there it ought to be pleaded in writing, which appears fully by the mean of the Court, and not by suggestion.

Fourthly, it was resolved that a prohibition may be granted, in case where the Court cannot give other remedy, for the ease of the Subject, who is the party; as it was adjudged in the Court of Requests: Vpon the custom of London, concerning Orphans, a prohibition was granted; and yet no remedy at Common Law was afterwards to be expected, Trin 5. Car.

Fawkner against Bellingham:

FAwkner against Bellingham in a Replevin. The Avowry was, for that, that the Defendant was Lord of a Mannor, and of Lands which were Chauntry Lands; and held of him by Rent and other Services; And after coming to the Crown by the Statute of 10 E. 6. cap. 14. Who granted it then over by Letters Patents, &c. And now the Lord distreins for Rent, and avows that he had not seisin within fourty years: And whe­ther seisin was requisite for him who made the Conusans, was the sole question in the Argument.

First, for that, that it is a new Rent created by the Statute of 1 E. 6. For when that Land is granted to the King by Parliament, yet the King hath operation upon it, and may dispose of it.

Secondly, that the Land passed from the Priest and others, by their assent confirming it. And it is a Grant of the Seigniory by the Lord himself unless the saving hinder it. But so by the Grant the Rent is ex­tinguished: And the saving is so a creation of a new Rent, 1. rep. 47. Altomeoods Case. And there is diversity between a Rent-service, viz. where the Tenant grants Land to the King, and he grants that over: He cannot distrein upon the Patentee: for it is distinct from a Rent charge. Stamford prerogat. 75. Mich. 20. E. 3. 17. And so it is ordered by [Page 27] the Statute de Religione, when he enters by Mortmain, that he ought to revive the Services, Stam. 27. If the King enters upon my Tenant, there a Petition of Right lies, Dyer 313. 10. rep. 47. By the saving in the Statute of Wills, &c. A primer Seisin is given to the King de novo, where he ought to have it before: And then being a new Rent no Seisin is requisite. Secondly, the second reason is, for that there is a new re­medy: and then no matter whether it be old Rent or new Rent, Finchden. A Rent granted out of White-acre, and a distress out of Black-acre, the Rent yet remains, and there is one thing part of the Rent, another of the remedy: Because the Rent is only altered in quality, Dyer 31. There our Case directly. Now the Statute of Limitations is a Statute for the good of the Common wealth, to settle inheritances and possessions. And it should be expounded liberally: Then if a scruple be of the Act, it ought to be expounded benignly. And so it is of all other Statutes which settle possessions: Always shall be expounded favourably for the ease and be­nefit of the Tenant and Lord. And for that adjudged, That a Copy­hold and Leases for years are within that Statute. And the Statute of 32 H. 8. 11. rep. 71. binds both King and Realm, because it is for the pub­lick good.

Owen against Price before.

BRamston argued for the Defendant. I agree that Lease to be a Lease in remainder; and I admit also that, that Lease is warranted by the Statute, 10 Eliz. For that, that he is not punishable of waste: And the case admits two questions: whether it be a void Lease at Common Law.

And First, In respect of the limitation.

Secondly, there is not any Livery in the Case.

Wherefore first of all, it had been said a Frank Tenement cannot pass from a day to come, in case of a Grant. 38 H. 6. 34. 8 H 7. Claytons Case 5. rep. It had been agreed that a Livery made the first day by him­self or by his Attorney should not be good. And moreover if by his At­tourney after the day, if his Grant may be granted, the same day it is not good. And then I hold that the date of the Grant of Attourney is not material, Trin. 43 Eliz. rot. 402. Conibar. It was resolved in such a Case as that is: That the Livery is not good. And the reason was, that the Livery had not relation to the Deed, which was void in Law. Buck­lers and Binsluns Case. The release was made 1 May, as this, and execu­ted by Attourney, and by Attourney authorised the same day, the se­cond of May. And it was adjudged to be void by the same reason. Green­wood and Tilers Case. He had much insisted upon that: yet in the en­largement of the Case, this point was resolved. That if the Livery was by Attourney, it should be void, and the reason there was, That al­though that the deed was void, yet the Livery made in person ought to be good. But the Deed can never by Livery be made good, which was void to that purpose. And it had been said and objected, that it might be done in person, and therefore by Attourney. I agree that by that Livery an Estate passes, but not by the Deed. But the Livery makes it pass out of the Interest that the Lessor had. But by that reason that such a Lease shall be good, where Livery is by the Lessor himself, will not stand with our Case. And divers Cases declare this difference. 23 E. 3. 31, 32. A Deed of Feoffment is made by Mawbry, where he had nothing in the Land, and after purchases and makes Livery, Secundum formam Chart. That estate passes but not by the Deed. But if Livery had been there made by Attourney it had not been good. If a Feme Covert, or a Monk makes such a Charter of Feoffment, and after Coverture or deraign­ment: [Page 28] Makes livery then by Attorny: such livery then cannot be good; For he cannot exceed his authority, which was to make good his first Deed. 22 H. 6 32. A feoffment of a Mannor by Deed of two acres, all pass, not by deed but by livery; but if by Attorny otherwise it is; Livery according to deed, (where there is not any) by Attorny is void. Kel­way 64. A lease made by Baron and Feme may be pleaded without Deed. Coparceners agregate cannot make a Lease without Deed; But a Bishop or a single Corporation may: and it shall be good against him, but not against his Successor; Dyer 19. 17 E. 4. 17. Littleton said, Where an Estate passes by Deed, then the Livery is but a Ceremony. And in the Chapter of Conditions, he in the remainder shall be bound by Condition in the Deed. Because that he took by that. So that by your rea­sons you would make that acknowledgement and inrollment by the Grantor himself, to be a Ceremony; and yet nothing pass. And the rule in Magdalen College Cases. If you will have a thing by Deed, to be nought, no subsequent Act can make it good. And then the lease is made to three, and the Grant of Attorny to deliver seisin, to 3. and he delivers seisin but to one; although that the others take in remainder. Yet he ought not to take upon him the cognisance of law, but pursue his authority. A lease is made for years the remainder in fée, and a War­rant of Attorney to deliver seisin to him in the remainder. And the At­torny delivers seisin to the Tenent for years, It is not good. And yet in Law it ought to be made to him. 11 H. 7. 13. A feoffment and a letter of Attorny to deliver seisin to two, and he does it but to one, That is a disseisin, and absolutely void by the Statute, Dyer 177. Hill. 39. Eliz com. banc. rot. 941.

Iohnson against Morris and Edmunds

IOhnson brought a Trespass against Morris and Edmunds, quare clau­sum fregit et herbam suis depastus est, &c. The Defendant said that all the time of the Trespass, he was seised of the Mannor of Amner; And that they, and all their Predecessors, had a Sheep-walk in the place as­signed, &c. and for all the year, but when it was sowed for all the sheep leavant and couchant upon the Mannor, &c. The Plaintiff replies that the Defendant such a day put 200 sheep within that Land, and that those sheep were levant and couchaut upon the Chauntry fold; Whereupon the Defendant demurred. Crowley Iustice. The Declarations are ge­neral of sheep, without expressing the number; and for that the Iustifi­cation is good in the generalty; and now when the replication is of 200 sheep, and does not say alias, it is naught. Hutton, It is not directly put, that the Chauntry land is parcel of the Mannor, and then we cannot so intend it, and yet by the Demurrer it is confessed. Richarson, It is not sufficient to say, that they were levant and couchant upon the Chauntry fold; without saying absque hoc, that they were parcel of the Mannor. And it is incertain whether there were other sheep: and we by Imagi­nation cannot intend it, &c. Harvey and Hutton, The Replication is good; For that, that in the Replication he now declares of what sheep he complain'd before; And he does not agree the sheep which the De­fendant hath justified; but he mistakes his Iustification. For he brings his action for another thing; As the Trespass is made, quare clausum fregit; The Defendant justifies for a way, and the Plaintiff says that he went out of the way; It is a good replication. And a new Assign­ment of the Sheep is contained in the Replication, the Declaration being general. And although that he did not say directly, that the sheep are o­ther. Yet put all the parts of the Replication together, and it will appear that they are other. But Richardson and Crook on the contrary. The [Page 29] Replication is not a confession and avoidance, nor traverse of the bar, if it had been said, Ducent. alias oves. But then the Declaration had been avoided, and the Defendant might plead not guilty to them. And although it was said, levant and couchant upon the Chauntry fold, yet it is but an argument: and express allegation in bar cannot be answered by arguments. For a prescription is for Ewes, and the Trespass quare oves &c. generally. The Defendant alleges his prescription, and avows that they were oves matrices. And the Plaintiff replies that they were oves verveces. That is not good without a traverse absque hoc, that they were oves matrices. And the Case put before of Iustification by way was agreed; For there it was confessed and avoided by Replication. And also that Case alleged by Hutton to be adjudged. A Battery is al­leged to be done the first of May. The Defendant justifies deson assault dem. the same day. The Plaintiff replies that that Battery was four hours after the other Battery. And it was traversed, and well, which was ordered by the Court that an alias should be added in the Replicati­on, &c.

Fawnes Case.

FAwne an Attorney in this Court, had arrested divers persons, by Process without original in Actions of debt. And where the King ought to have for every hundred pounds in the Obligation 10 s. for a Fine, if the sum exceeded 50 l. And when the original is sued, the said Fawne took the mony to himself of the Clyents. And the Cursiter com­plains to the Chancellor, and be informs the Court. And it was said by Richardson, because he had taken his oath which every Attorny ought to take, That he shall do no falsity; And also we by our Oath bound to punish such offences: Therefore his sentence was: That his Name should be put out of the Roll, and thrust over the Bar, and committed to the Fleet; Which was executed accordingly. 20 H. 6. 37. & 41. E. 3. 1. Which Cases prove the same.

Iames and Thoroughgood against Collins.

IAmes and Thoroughgood brought Trespass against Collins. And the Case was this, A man makes his Testament and gives to 5 men their heirs and assigns, certain Houses in Fleet-street, &c. All of them to have part and part alike, and the one to have as much as the other. And whether the Defendants were Iointtenants or tenants in Common was the Question; and it was adjudged and resolved that they were Tenants in Common. And the same Case in 2. 3 Phil. & Mary in Bendlows Reports is adjudged so. And also in Lucan and Locks Case in the Kings Bench It was afterwards remembred and agreed to be good Law, Ratcliff; Case. Ad­vise to two and his Heirs, in Ioynt-tenency by the whole Court, against the opinion of Audley.

It was said by the Court, that an Officer of the Court ought to be an­swered in any action de die in diem. Quod nota, &c.

Beguall against Owen.

BEguall brought a Writ of Partition against Owen before the Iustices of Assise, at the grand Sessions in Anglesey. And the Defendant pleaded the general issue. The Plaintiff prefers a Bill in English, and says that Owen is Tenant in Common with him, and that divers of his [...] [Page 28] [...] [Page 29] [Page 30] VVitnesses which can prove his Title are so aged, that they can­not come to the Sessions, and desires a Commission to examine the Witnesses concerning the Title in perpetuam rei memoriam. And Hen­den moved for a Prohibition; For that, that Cause would be dangerous for the Subject, that such Testimonies taken in his absence should be for tryal of his Title.

Secondly, That that examination before the Tryal is against the Sta­tute of 26 H. 8. And although they have it in Chancery, yet it is not so here. But it was denied by the Court: For there was never seen such a President, Of a Prohibition to a grand Sessions. And by Yel­verton. They have it in Chancery; and if it be not prescribed in what man­ner they shall have it, it should be as in the Chancery. Hutton, That Commission is not prejudicial to the Subject, although a Prohibition be grantable. For such Testimonies are not used but after the Witnesses are dead; And a man cannot preserve them alive, and perchance his Title rests upon their Testimonies.

Iane Heeles Case.

IAne Heele Administratrix of her Husband, brought an action of Debt upon an Obligation made to her Husband the Testator; The Defendant pleads a Recovery by the Testator upon the same Obliga­tion, and that he was taken in execution, and that the Sheriff suffered him voluntarily to escape. The Plaintiff replies Null tiel Record of the Recovery; Vpon which there is a demurrer. Davenport, That the Iudgement was but a conveyance to their matter in Bar, and it ought not to be traversed. But it was said by the whole Court, That the Iudgement in it self is a good bar, if it be not reversed. 6 Rep. 45. Hig­gins case. The execution upon that, is not but a consequence up­on the Iudgement. And without the Iudgement, Escape is not mate­rial for to make the traverse good. And so Iudgement was given for the Plaintiff.

Issues.

If the King by his Letters Patents grant to the Corporation all Issues within any places; The issue that the Corporation it self shall forfeit, shall be excepted by intendment of law. For o­therwise it would be a defrauding of Iustice; For then the Corpo­ration would never appear. Which note in the Case of Dean and Chap­ter of Ely.

Provender against Wood.

PRovender brought an action upon the case against Wood, For that the Defendant assumed to the Father of the Plaintiff upon a ma­riage to be solemnised betwéen the Plaintiff and the Daughter of the Defendant, to pay him 20 l. And it was agreed by Richardson and Yel­verton nullo contradicent. That the action well lies for the same. And the party to whom the benefit of a promise accrews, may bring his action.

Mrs. Rowes Case.

MIstris Rowe was arrested by a capias corpus ad satisfaciendum, by a Bayliff in Middlesex, within the Bars in Holborn, which is within the liberty of London. And Hitcham the Kings Sergeant prayed a Su­persedeas, For that, that the arrest was false. And the Court agreed, that a Supersedeas cannot be granted. For a Supersedeas it cannot be alle­ged Executio erronice emanavit, but there the Execution is well grant­ed. And if it be returned by the Sheriff generally; It ought to be intended well served; although that the Affidavit be made to the [Page 31] contrary. But in this case a Corpus cum causa shall be grant­ed.

Booth against Franklin.

BOoth Farmor of a portion of Tithes for 5 years; without Deed de­mises a Farm which he had in the same Parish to Franklin for years; and afterwards he libells against him for tithe of that Farm. And Frank­lin said he was not Farmour. And Henden prays a Prohibition for that.

First, That the Lease for Tithes is without Deed: but he may be discharged of his own Tithes without Deed; As was adjudged before in this Court.

Secondly, the Lessee is not to pay tithes for that Farm. For although the Parson makes a Lease of the Glebe for years, he paid tithes; But if a Layman who had the impropriation leases the Glebe, the Lessee does not pay tithes. But the Court denied the case of the lease of the Parson­age impropriate; And said that the case of Perkins and Hinde was adjudged to the contrary in that very point. And also if he purchase other lands in the Parish (which are discharged of tithes in his hands) and he demises them, yet the Lessee pays him tithes. And the opinion of the Court was, If one contract with the Parson for discharge of the Tithes of his lands for years, and demises his lands to another; yet he shall not have tithes, but the discharge runs with the land. But if one take a lease of his Tithes by deed, and makes a demise of his land, he has tithes of the Lessee. And the direction was, that the Lessee of the Farm ought to shew expresly in the Ecclesiastical Court that the Farmour had not a Lesse by Deed; and a Prohibition was granted. And it shall be admitted, that the words of the libell being Firmator, conductor & oc­cupator was good,

Ralph Andrews against Bird.

ANdrews brought an action upon the Case against Bird, and declares that Bird sued a Trespass in this Court against him; and upon not guilty pleaded, the issue betwéen the aforesaid Ralph Andrews, and Robert Bird was tryed at the Assises, &c. And that there Andrews shew'd in evidence a Deed of feoffment concerning his Title, and the verdict passed for Andrews. And afterwards Bird spoke these words (scilicet) That Andrews procured the Deed to be forged. And upon not guilty pleaded, it was found for the Plaintiff. And Atthowe moved in arrest of Iudgement.

First for that, That in the Record it was entred that the Issue was inter praedict. Robertum, where it should have been Radulphum.

And secondly that the words were not actionable. Richardson said, as to the mistake, it was helped by the word aforesaid. And although that it was inter praedict. Andrews, it should have been well; For it can­not be intended, but the same Andrews. And Crook Iustice cited Dyer 260. Cook and Watsons Case to be the same Case, and 11 H. 7. Pen­ningtons Case, That the words were actionable; For the Statute pu­nishes forgery, and the procurers of forgery. And it is all one, although he did not say falsly procured, as the precise words of the Statute are; Yet it shall be intended, that that is implyed in the word Forge. But if it had been said, the Deed given in evidence was forged, that was not actionable.

Wood against Symons.

VVOod against Symons in a Prohibition, in which Symons libels for Tithes of Hay. And Wood suggests for the Prohibition, That he used to pay tithe of Hay in specie, in consideration whereof he used to be discharged for all Doles, Green-skips, and Headlands, not exceeding the breadth that a Plough or a Teame might turn about the Lands. And Henden moved for a Consultation; For that it is said about, &c. that is circa terras arabiles. When the truth is there are Skips at the side of Lands, as broad as the Lands themselves; and then he would be dis­charged of them also. Whereas it ought to be at the end of the Head-lands only. Richardson said, that in arable lands inclosed, Pasture is at the end and at the sides, which is mowed, and yet discharged of tithes. But the Court in respect there was a Prohibition granted said, That he ought to joyn Issue or demurre upon the Declarati­on.

Summons.

IN a Writ of partition after the Summons an Estrepment was grant­ed, and generally against the Parties and their servants. For in par­tition no dammages are to be recovered. Quod nota.

Escape.

IF a Sheriff remove his Prisoners out of the County without being commanded, it is an escape. But if he remove them from one place to another in his County as he changes his Gaol, it is not an Escape: But if he remove prisoners for their ease and delight in the same County, it is a Escape. As the Case was cited by Harvy. That one went with his Prisoner to a Bear-bating in the same County. And it was adiudg­ed an Escape. And Hutton Iustice said So that if a Sheriff permit his Prisoners to go to work for their benefit, it is an Escape. And the Question was, if in an Audita Querela for a voluntary Escape of one in Execution, there should be bayl; and the opinion of the Court was, That if it appears, That the Cause upon which the Audita Querela is grounded, is called a good proof by the Record, and that he should not be bayled, un­less good and special bayl.

Duncombe against Sir Edward Randall.

IN an action upon the Case betwéen Duncombe and Sir Edward Ran­dall for diversion and stopping of a River, It was agreed by the Court, That if one had antiently Ponds which are replenisht by Chanels out of a River, He cannot change the Chanels, if any preju­dice accrew to another by that. And yet the effect by prefluxions, is to have the Ponds fed out of the River. But sic utere tuo ut ne laedas alieno.

The Vicar of Hallifaxes Case.

A Chaplain that was under the Vicar of Hallifax, libells against him for his Sallary. And he prescribes that the Vicar ought to pay the Chaplains four pounds a year, And the Vicar prays a Pro­hibition.

First, for that he alleges, That the Chaplains were eligible by himself; [Page 37] And because that Chaplain was not elected by him, He is not Chaplain; But he is in of his own wrong, &c.

Secondly, That prescription for Sallery was tryable at the Com­mon law. Yelverton, the Sallery is spiritual, as the Cure it self is spiri­tual, for which it is to be payed. As the Case in Dyer 58. Pl. 4. But a Prohibition was granted, untill it was determined to whom the election appertained. And that now depends by Prohibition in this Court.

Assault and Battery:

TRespass of Assault and Battery was brought against two, and the one of them appeared, and a Verdict was found against him; The other was in the insimul cum. And dammages were taxed against him who appeared. But the Court by view of the Plaintiff, increase the dammages from 30 l. to 40 l. And afterwards a verdict was given a­gainst the other Defendant, and dammages also were taxed. And Thime moved that the other Defendant had murdered the Officer who came to serve the Execution upon him for the 40 l. And so they by possi­bility might recover nothing against him, that the Court would increase the dammages against this Defendant upon another view of the wound. But the Court denied that; For they can have but view one time in this Action. But if they had brought several Actions then it had béen otherwise. But he directed him to stay all untill the first Defen­dant was hanged. And then they may make a view and increase the dammages.

Margery Rivets Case.

A Iudgement in Debt was brought against Margery Rivets Admini­stratrix, durante minori aetate of her Son. And in a Scire facias against her, she pleaded in Bar, that she was Administratrix, &c. and that such a day her Son came to full age (scilicet) 17 years, and that af­ter she refused before the Ordinary; And that the Administrati­on was granted to a Stranger; And that she had delivered all the Goods in her hands at the time of the Writ brought or after, &c. The Plaintiff replies and confesses all the Bar: But that before the delive­ry of the Goods, and Administration granted by the Ordinary (devasti­vit) and does not say that praedicta Margery devastavit. The Defen­dant joyns Issue Quod praedict. Margery non devastavit. Which was found for the Defendant. And Hitcham the Kings Sergeant moved in arrest of Iudgement; For that, that there was no Issue. For every Issue ought to be returned certain, and the Issue grows upon the affirmative; Then the word of the Defendant quod praedict. does nothing, for the af­firmative makes the Issue. Coo. Countess of Salops Case. A Bar may be taken upon Common intent. But a Replication ought to be precise and certain. In the Exchequer Chamber. Tho. Harris's case. One pleads that he was seised of White acre and Infeoffac.. And adjudged naught, for it ought to have been feofavit inde. For he may be seised of White acre, and enfeofft of another acre. And also it may be said, that another devastavit, although that the wife was Administratrix. Atthowe observed all the course of the Reeord; there is not a word of Margery in the Replication, but only in the recital: But says ante diem quo devasti­vit. And the Replication cannot be taken by intendment, and it cannot be amended; For it is not vitium scriptoris, nor is it so much as ipsa deva­stavit. But if it had béen said that praedict. Margery had Goods in her hands, sexto Decembris, et devastavit, then it should have béen good. Crook. She said, that she delivered Goods to another Administrator, [Page 34] and then he replies, that before that time devastavit. It cannot be in­tended that any other Devastavit but the Wife. And Hutton said, that that séemed to him to be good. But Yelverton replyed, that it did not séem to him to be good, and it cannot be intended Margery. The Re­plication is the Title of the Plaintiff, As upon a scire facias without a precedent Iudgement. For the Duty of the Plaintiff is when the De­fendant had confessed himself to be subject to his Charge one time, As in debt upon Arbitrement; and the other pleads no arbitrament made. And in point of arbitrement to pay mony, It is not sufficient for the Plaintiff to say, That the mony was not paid at the day: But he ought to affirm that the Defendant had paid it, &c. And so there also Margery is not named affirmatively in all the Replication. For if her name had begun any sentence, then she might be intended. And although it be now after verdict, yet the verdict will not help. So it was adjourn'd for the present.

Robert Barret against Margaret Barret his Mother.

RObert Barret brought an action of debt against his Mother, for an Ob­ligation made to him, the Condition whereof was thus. That she shall perform all that part of her Husbands Will, that of her part is to be performed, and observed concerning the Goods, &c. And that she shall use, occupy and enjoy all the Lands and Tenements to her demised, accor­ding to the true intent and meaning of the Will. The Defendant recites the Will, which was, that her Husband gave her one Messuage and Land for her life; Excepting all the Timber Trees and Wood. And further will'd, That she make no waste nor estrepment in the Houses, Lands or Tim­ber-trees, nor her Assigns nor any other for her. And further will'd, That if she shall happen to do any such waste; That then she shall pay to Ro­bert Barret the double value of that to which the waste shall come or a­mount unto; Being indifferently valued by two chosen by themselves. And furthermore he willed, That there ought to be forty load of Wood per annum, taken for fewel upon the Land demised, of such Trées which have been used to be lopped for 30 years before. And so she pleaded, that she performed the Covenant in all, &c. And the Plaintiff replies, that the Defendant had decouped a Grove of Wood, containing by estimation one moyety of an acre, and 6 Elmes, and 20 Beeches and Sallows, and Maples, and Thorns, being of the age of 33 years. Whereupon the De­fendant demurred. But Atthow argued for the Defendant, and he said, That there is not any breach of the Obligation alleged, all Tim­ber-trees are excepted; And because when she cuts them, there is no waste, but a trespass to Robert; And the Will is, That she shall not do waste. For if she had entred into other Lands and cut Trees out of the Lands of the demise, that had not been a Forfeiture of the Obligation. But it shall be objected, That then that clause had been void; if his inten­tion shall not be construed of waste to be done in the Trees; Then the se­cond breach is not well assigned; For the words are, If she does waste, that she pay the double value. And then although that waste be done, You ought to allege that she did not pay the double value: for if she had paid it her Obligation is saved. But Hitcham the Kings Sergeant on the contrary. The breach is well assigned. The Case rests upon the words of the Obligation, and the intention of the Will: and then the Intention will appear, That she cannot commit waste in the Trees, al­though it be excepted. And I conceive it is within the words, for it is that she occupy and enjoy the Lands demised as aforesaid. Now if I grant my Land, I ought to demise my Trees also. And if I be obliged not to [Page 35] commit Estrepment in my Land, If I pull down a House, it is a forfei­ture of the Obligation. For if Tenent at will pulls down, no waste lies against him, But he shall be punisht by an action of the Case, for it is destruction and waste at the Common law, In any of the Houses, Lands, or Timber trees. And what Timber trees may be meant. But those are excepted, when all are excepted. Dyer 323. Pl. 29. After the Statute of 23 H. 8. Nothing was left in the Feoffees al use. One would stand seised with his Feoffees to the use of I. S. And adjudged that that is a good demise of the Land. Ed. 6. conveys the Manor of Framing­ham in fee farm, and afterwards grants the Fee farm: and the Grantee demises his Mannor of Framingham, & the Fée farm passed; for that that it was usually called by that name. And Thorntons Case 3 El. He gives all his Land that he purchased of I. S. And he did not purchase any of I. S. but I. S had conveyed it to I. D. of whom he had purchased. And ad­judged good, Sir Edward Cleeres Case, Co. lib. 6. 17. So there it ought to be of such waste, as he in his apprehension esteemed to be waste. But it may be objected, that she did not pay the double value. But I conceive, That if you will that that be paid, yet the Will is broken. For if you will by one clause that she commits not waste, and by another if she do, that she pays the double value, and she does not pay it, she breaks two clauses. That ought to be pleaded by you. If the Statute prohibit a thing, and if he offend against it, that he shall pay, &c. I say that he may be indicted upon the very Prohibition. So that you would shew this in excuse of Waste. But I conceive that it is not excused upon the Sta­tute of H 6. Richardson chief Iustice. All the Obligation goes to the intention of the Will, which may be collected by circumstances out of the Will. And then the sir Elmes are meerly the others, not the Sallows, Maples, Beeches, and Thorns, by which the intention is broken. Now the Law will not allow that to be waste which is not any ways preju­dicial to the Inheritance. So when the Husband said, she shall not commit waste, It was not his intention to restrain her from that which the Law allows. Thorns in some Counties are adjudged waste, where Trees are scant. But a Grove ordinarily is Vnder-wood. And then if she committed waste, the Husband took upon him to impose the penalty. And although that she enter into an Obligation, yet it is that she is restrain­ed by the Will of her Husband, and he intended it for a benefit by that imposition of forfeiture; and therefore we ought make a benign con­struction. And for the Obligation that the non-payment of the forfei­ture ought to be shewed by the Defendant, I conceive otherwise. For the breach ought to be averr'd, as the Will is. And where a breach is alle­ged for a forfeiture. It ought to be pleaded, so that it may be tra­versed. Cook on the contrary. If the Obligation be that she perform the Will, then peradventure that shall be no forfeiture.

Gooderidges Case.

AN Indictment of murther against Gooderige. There was an ex­ception taken, for that, that the Indictment was; That the said Francis who was murthered such a day, apud quandam Down. vocat. Westmen down in Comitat. Hampton, insultum fecit, & quod ibidem ha­buit & tenuit quoddam glad. in his right hand, & praedict. Fran. percussit, and does not say ibidem percussit; and for that naught. For it is not a necessary intendment, that the percussion was at the same place. Also he said, Whereof instanter obiit, that is no certainty; But by argument that he died in the same place. And for these causes, and because it was body for body, the Indictment was sufficient.

It was agréed if a Feme sole Executrix of a terme mary him in the reversion, and dies, the term is not drowned, but the Admini­stration of it shall be committed. Otherwise perhaps if she had pur­chased the reversion. And it was the case of Owen. If the Executrix Debtee mary the Debtor, That the debt is not gone, but the Admini­strators other wife shall have it.

Moor against Penruddock.

MOor had a Latitat against Penruddock the Sheriff of Wilts, Who returns that he himself was Sheriff, and could not be arrested by any, or imprison himself. As in Plats Case; a Feme Gaoler marys a Prisoner, that is an Escape; For he cannot imprison himfelf. Yet the Court ordered that he ought to appear and find Common bayl.

Thomas's Case.

AN action upon the Case by a Constable of a Parish against Styleing for saying, Thou art a bribing Knave, and hast cousened the Parish of Wilden in rates to 30 l.

Hores Case.

HOre a Clark of the Common Bench brought a Bill of Privilege there. And the entry was, quod praedict. Hore per Tho. Maun Attornat. suum obtulit se. And Iudgement given, and upon that Er­ror: For among Clarks of Court, their appearance ought to be in proper person.

Fawkner versus Bellingham.

LE case de Fawkner versus Billingham fuit ore argue per les Iudges. Et Yelverton teigne que seisin nest requisite, et pur ceo nest deins le stat­tute de 32 H. 8. 2. et ceo pur 3 reasons, primo pur ceo que le stattute de primo E. 6. est le title sur que le Avowry est fait car le defendant ne poet conveyer cest rent al lui sans monstre le saueing dems ceo stattute car sans le saueing touts les servises sout merge 27 H. 8. Parlament. Alton Woods Case primo rep. 47. Et avowry ore ne seroit come fuit al Comon ley mes sur tout le matter. Dyer 313. plo. 91. Et il doet declarer tout son cawse come est in un Accon dl case cenx choses doieut monstre: primo doet monstre tout le stattute, &c.

Secundo il doet monstre que le Roy ad bone title al ceo terre come Chauntery terre, &c.

Tertio que le party que claime cest rent est person deins le saueing, &c.

Quarto que il nest deins ascuns des exceptions dl stattute, et ceux doet ee monstre in secula seculorum cy mults foits que il distraine. Et sur ceo son count est sur le act de parlament. Et si arreages suerout al le Suor. de­vant cest stattute le Snory eeaut per le stattute extinct que issint fuit perde come 4 rep. donque le rule dl ley est ou Avowry on, &c. est ground sur le matter de record. ne seroit weaken per future temps in matter de fait quel­cum (que) Quare Impedit per effluxion de temps fuit ouste, &c. per 32 H. 8. si ne soiet vide per le stattute de primo Marie cap. 5. a. mes si divers Co­parceners voient faire partition a presenter per lour turne in cest Court [Page 37] per bre. de Covenant on droit de Advowson ils poient aver scire facias too anus apres sur cest composition car est per matter de record come si recove­ry soiet ewe Scire facias gist sur ceo in eternum 33 E. 3. title & 3. et i 4. 6 E. Trin. 3 Car. Com. Banc. 4, ii. Annuity per prescription est deins le stattute de Limitations mes si soiet un foits recover Scire facias gist sur ceo al ascun temps car le declarer sur le record et ne ou le Annuity fuit done, mes on le record est fcilicet in Middlesex. 18 E. 4. 18 et 19 E. 4. 1. les records del Court sont appel le Treasury dl Roy donque le Treasury dl Roy continue touts foits, et est currant in touts ages issuit de records, &c. Keiell. 123, Common use sans temps de memory oue un mannor si fuist graunt per office al primer: ne poet ee claime come appendant pur ceo que est per fine: Et pur ceo si le stattute de 32 H. 8. navoit limitte le temps dl Scire facias sur fine poet auer al ascun temps mes ceo est denis, les expresse parolls del Stattute, nul auter Scire facias est denis cest stattute: secundo diversity est inter le inlargement de temps sur cest Stattute & suspension il agree Collins Case Coment. 32 i. que in Case de Q are Impedit & ravishment de gard &c. que est nul Equity per Construction, des Judges poet gainer temps ouster les strict parolls dl Sta­tute. Et Dyer 266 mes se suspension est auterment car Grauntor et Graun­tee per lour agreement poet stoppe le Glasse que le temps ne incurger cy swifte come est in 4 rep. 11. Si Suor release al son Tennaunt ey long que I. S. avoit heires de son corps et 60 anus passe et I. S. devye sans heire del Corps et uncore il poet distrainer pur le temps per les partyes et suspend et poet e'e auters Cases. Si Sinor voloit releasor son Tenaun distresses pur 60 anus sil poet aner apres sans seisin, deins 40 anus car le Su'or durant cest temps ne poet compeller le Tenaunt a paier les services. Et que cest est bone release 1 H. H. 4. 1. et 4. si nul distress est sur de terre pur 40 anus il poet distrainer al fine de 40 anus Lex non cogit ad impossibilia. Et issuit si le Tenaunt voet releasor le Tennancy al Signeour pur 60 anns le Suor poet apres distrainer. Et si deux Coparceners sont et un in vie dl pierpur chase rent charge de liu in Fee et il devye cest rent est suspende tanque par­tition soiet sait coment que soiet apres pur 400 anus distresse. est loiall pur le rent que estore revive. Et donque si Grauntor et Grauntee poet saue ceo per lour assent a fortiori poet e'e sait per assent de Act de parlament car 4 choses sout Assent: per act primo que le rent serroit save.

Secundo que serroit seuer del signiorye et deveigne rent seck, &c.

Tertio que touts former seisins serrout fruitles car estoiet come rent saue per parlament, &c.

Quarto que le stattute done nul distresse pur cest rent vncore les Iudges done distresse pur ceo car le stattute sane ceo et one le remedy aver ceo mes ceo n [...]st done per le statute mes construction des Judges. Et issuit le con­struction sur primo E. 6. overrule le stattute de 32 H. 8, &c.

Secundo nest deins le intent pur ceo que le stattute ne extende al ascun rent mes seisin doet e'e necessariement alleadge come in rent service est ne­cessarye 26 H. 8. Com. 945 E. 62, et 63. et 13 H. assise br. 60, &c. Et donque ne vnque seisine apres le stattute de Limittation est bone plea. Et in ceux on le comencement nest scavoy de eux come Annuity per prescripsi­on hors de Coffers on Corrody & icy seisin est properment dee alleadge et sout denis le stattute mes le comencement de cest rent scavoy scilicet per primo E. 6. mes jeo ne intende que est novel rent mes veiel rent one no­vel privilige car ore estoiet per lui mesme on fait parcel dl service.

Secundo cest rent.

Tertio nul distresse de common droit est incident al ceo come fuit de­vant per le privity inter le Owner dl rent, et le owner dl terre. Et le di­stresse est annex all ceo per Construction, des Iudges a satisfye les parolls del stattute. In ma'nnor such like forme and Conditions as if this sentence had never been made, &c.

Quarto cest rent est support sans se seisin et e'eant devant restrain per [Page 38] le stattute de 32 H. 8. Mich. 3. Car. Com. Banc. seisin estore per primo E. 6. Mich. 3. Car. Com. Banc. Auter act mise a large arrear et cest rent est parcel dl ma'nnor come suit devant et poet passer one le mannor sans fait come le case de 31 assise plo 23. 1 H. 4. et 22 ass. plo. 53. 30 E. 3. Stathum. Warranty. Tertio est mesme rent in continu­aunce destate fait Fee-simple: Et est mes a fairer ceo al. le stattute de Limi­tations est oppositum in subjecto. Et les parolls ne sane le rent in le mesme mannor, &c. oue ceux differences sout satisfye car auterment vous comit­mults absurdityes scilicet que continnue rent service et que le Signiory con­tinue mes les Construction est que le rent continue al le prim. Owner cy liberall pur estate et remedye cy free pur perception come devant imo meli­us car ore il poet distrainer al ascun temps et est pluis fort que si le distres­se fait expressement done per le stattute car donque poet e'e release mes cest distresse donque per construction ne poet e'e release car la ley create ceo come vn hand mayden al waiter sur le rent.

Mes voet e'ee demaund hors de quel wombe cest rent seck issue, &c.

Respons hors de nul wombe forsane le wombe dl Parlament et primo E. 6. unde sequitur que rent seck est scavoy a aner commencement et donque un originall est scavoye est hors stattute 8 rep. 64. pur ceo que cest stattu­te suit sait pur deux reasons, &c.

Le primer que Jurors nedoieut e'e trouble al searcher in temps incer­tain, &c.

Le second que dormant Titles poient e'e dettermine.

Le third le stattute de limitations Merton cap. primo Westminster le primer cap. 39 West. le second cap 26 coment que ceux stattutes con­fine al certain temps uncore si le comencement de chose poet e'e monstre al le Court fait hors de eux. Et ore le stattute de 32 H. 8. sweepe touts ceux stattutes awaye come Limitations, 45 E. 41 63. si apres le stattute de limitations de assises et devant le stattute de Quia Emptores terrarum Auncestours de I. S. soiet infeoffe dl terre tenus de Feoffor per fealtye et rent et Avowrye et fuit pur ceo rent ore si le special matter soiet monstre per quel appeirt quant on Surye commence ciy est nul plea que Suor ne fuit seisie apres le stattute de Limitattions de Assises car le Court doet indger de speciall matter disclose et le seisin de tiel reut ne unque ferroit traverse & 21 H. 7. Kell 31. per Reade mes si rent survive soiet sait sans date devant temps de memory. Si le sait so [...]et de 20. s. et ill ne unque fuit seise forsane de 10. s. que non unque avoit ne unque seisie est bone plea.

Et pur ceo il est mise all bre de customes et services et uncore cest rent est intire. Et fi home tient dl Roy imediatement, et il voet obtaine Licence a faire Feoffment a tener de lui mesme come est usuall, & il fait Feoffments rendant rent et Fealtye ceo est cleerement hors dt Stattute de 32 H. 8. pur ceo que est novel tenure et le Licence est touts soits sur record in le Chaunce­ry et pur ceo que te comencement. de cest rent. Est Cognise est hors dl Statute.

Tertio le Stattute de primo E. 6, serroit construe liberallment pur ceo que va al supportacon de rent que esto et oue common droit. Et sout three kindes del acts de Parlament primerment est de creation: Secundment Con­firmacon. Et Tiercement preservacon et de cest darraine kinde est primo E 6. si cest act de Parlament avoit ce done rent per expresse parrolls sans question serroit hors de 32 H. 8. donque ceo ne, scavoy pur que ne serrit pur le plt eeant sane per le Stattute. Et ne fait le intent de cest Stattute a sauer cest rent pur temps infinite, et suffer ceo a devoigne fruitles pur temps finite si le rent navoit ee paye pur 100 amis est sane per le Stattute et payment per le Tennaunt a volunt revivor ceo cap. 11. 5 E. 4. 7. E. 4. 22. E. 4. 7. mes seo agree que payement de tiel rent per mon bailie nest bone dauer sei­sin. 5. Rep. 56. sil navoit mon Licence Et est diversitye inter Ordinaunce fait per act de Parlament per parroll affirmatine & Com. 113. Su nostre case le Stattute de ceo suit pluis que le common tey puissit sane cur le Com­mon [Page 39] ley avoit destroy te Snorry Kell. 131. Stattute de de Marlebridge an­nex le suite de touts les Coparceners al eigne soer cest suite est hors dl Stat­tute de 32 H. 8. pur ceo que te Stattute avoit issuit annex, ceo al eigne que il preserve ceo al Snor: de lui touts foits a fortiori lou cest rent est sane per un Stattute pluis darraigne que cest de cy hault nature que le Stattute de 32 est et ne saueing eeaut de si mult. Judgement car si le rent avoit ee release al Chauntery Priest, one condicon avoit ee issuit sane Dyer 252. Car le stat­tute intend a saner lou fuit, droit et possession et nemy droit sans possessions mes Crooke Justice contra lui: ne Poet ee deny mes devant le Stattute de primo E. 6. suit bone plea in a vowry pur cest rent ne unque seisu & le question ore est on le stattute de primo prise seo hors de 32. Avoit ee prise que est rent preserne per le Stattute de 1. Et si avoit ee express excepcon de cest rent serroit bone sans seisin a quel jeo agree mes jeo dye que cest re­ut nest done ou preserne per le Stattute si ne Poet prender son temps car vigilantibus, & non dormientibus cest reut est channge per primo mes nemy novellment done non est res alia sed alterata et ore est reut Secke, distra­nable mes cest Alteracon deveigne deins temps de memory, mes quomodo constat quant cest rent commence, donque est de touts les cases mise per Yelverton Dyer 133. Alton Woods Case 1 Rep. 47.8 Rep. 118. & Strowds Case Latitat que co ment que soiet preserue uncore il ne Poet aner ceo co­me devant mes la ley intende a fairer eeo come matter de profitt al Snor in tiel mannor. Et jeo denye le case que si Arreages fuerout done devaut le Stattute que soit perde car le ley sane le reut come fuit devaut mes ceo nest quoad le profitte mes quoad le tenure: Voier est que le avowry est change car doet avowe sur tout le matter donque le reut vucore eeaut in point de a owrye car avoit come devant, seisin est touts foits requisite. Et jeo agree touts les cases mise de Scire facias sur record il Poet aver enx al ascun temps pur ceo que il ne vaier pluis onster le Record. Mes ny in Monstrans sou Title il doet vaier le Stattute de primo, et monstra son tenure procedent le act de Parlament; et ceo est son title ex commencement dl Tenure oue ne appeirt car donque le reut ne Poet ee parcel dl mannor, come est agree dee et le mon. strans dl act de primo est pur ceo que il doet avower sur le matter donque quant il declare surreut nemy create per sait on record mes doet alleadge seisin devant le Presbitery dissolue per touts les liuers la seisin doet ee tra­vers 22 H. 8. 63. 35 H. 6. Avowry. Seisou avowry est le principal chose 14 H. 4. 2. record. Long 4 H. 6. 2. differt le difference la est que si single person teignant, per rent in avowry, seisin doet e'e allege per maynes de ascun person si per Corporation auterment est el seisin alleadge generall­ment est bone 27 H. 8. 4. Et 20 coment que avowry est chainge del person sur le terre per le Stattute de 21 H. 2. uncore est alleadge 30 H. 6 Avow­ry 15 la est dit que seisin est le possession 9 Rep, 24. expressement pur a­vowry est possessory Action seisin est le ground de vestre Accon. Et si ne pores maintainer te seisin alleadge te Accor fait pur ceo ny seisin ne eeaud alleadge son title saile: mes il ditque poies scoviour le Commencement de c [...]st reut voier est que si Poet ee monstre per fait ou record le tempr dl commencement donque per contra formam. Foffamenti, on per monstrans del sait poies bar le avowry Com. 9. 4. seisin doet ee traverse & confess ou avoyd, et ceo est forsque deux voies. primes per cohersion de distress, ou per monstrans sait dl tuncore ascun Livers teignant in cest case que vous estis mise al contra formam Feoffamenti come Long 5 E. 4. 16 E. 3. Avow­ry uncore ceo concern que le monstrans dt fait est bien per lui mesme 10 H. 7. 11. 44 E. 3 s Avowry 76. Et auxi seisin per Coheire nad lier 12 E. 4. 7. et 5 E. 4. 28. 30 E. 3. 5. donque cest Act de Parlament nest done novel rei mes de touts choses ewe devant et nemy create mes saueone les Quallities come fuit. Et ieo agree, que le reut coment seisin ne unque ewe pur ioo anns devant est in esse de sane per le stattute si seisin fuit unque sait Auxi le Stattute fuit fait pur le ease des Subjects. Et pur ceo le case in les [Page 40] Com. 371. est que lestattute de Limmittacons et fines fuerunt sait sur un reason silicet pur le quiet del fubject. Et ne doient ee construe per imagi­nacon des Judges mes solonque le parrolls del Stattute, et lou fuit dit que cest Stattute ouste les former Stattutes de Limittacons mes jeo denye ceo mes il done un shorter cutt: Et veies le common ley devaut cenx Stat­tutes. Bracton dit. 52. que longa possessio quasi sunt me possidendi & is­suit que cest Liner account de long possession come de droit Glanvile libr. 3. cap. 14. le limitacon de Avowrye fuit Westminster 2. Et donque 32. plius ceo restrain, donques quant ley regard le possession, et le seisin: est le pos­session si ne unque avoit seisin semble que navoit droit 8 E. 1. 18 Horne: et jeo denye le case que si navoies seisin per temps hors de memory que ne poies vuque aver ceo Car sil gaine seisin on le Tenaunt consesse est bieu mes est object que ceo saneing est un done mes saneing est reservacon de chos in Esse devaut Com. 563. 35 H. 6. 34. per Danbye 26 ass. 66 le Snor mesine, et Tennaunt: Tenaunt tieut per soccage mesne in Chivallrye, le Tenaunt devaut lestattute de Quia Emptores fact done dl terre salvo. For­inseco servitio, et le savant fuit voyde pur ceo que fuit in soccage 8 E. 3. 67. Avowry 154. 9 H. 3. 1. home tieut terres per homage fealtye rent et auter services Et Snor release al Tenaunt son seruices Et le Tenaunt claime le terre except 15 s. Et le question est quel rout ceo est et fuit rule; que est rent service; Et que il avoit fealtye al ceo incident pur ceo que est pur le faneing: et serroit de mesme quallitye come fuit Parlaments: 776. la le saneing ne Poet vaier al chose que non est in esse, donque rent re­serve per voy de saneing est cognize nemy dee done ascuns foits, saveing Poet doner come per Stattute de 34 H 8. primer seisin est sane al lui lou navoit devaut.

Et ceo est rule lou saneing est un Act de Parlament de chose que nest esse devant la potius quam le saneing seroit idle seroit un expresse done come si terre soiet done per Parlament al I. S. savant al I. D. rent de 20 s. per an­num: hors de ceo que navoit devant cest saneing done le rent al I. D. Et si in cest case le saneing a voit e'e del cest rent in particular al defendant il avoit comence per cest saneing mes uncore si le saneing avoit e'e de touts rents et services in perticular al defendant seroit auterment. Et est case on surplusage de rent est al Suor. Et le Suor peramount purchase le Te­uauncy ceo est saneing per comon ley al Suor, et le comencement de cest saneing est sane uncore in Avowry pur cest seisin doet e'e alleadge et auxi est traverseable 2 E. 2. extinquishment, 20 E. 3. Avowry 26 H 6. H. 67. et Littleton, &c.

Mes est object que le Parlament done cest saneing et les Iudges done construction de ceo: mes jeo conceave que le common ley ne voet permit­ter tiel construction car don (que) poet extend al touts rents extinct per le stat­tute de Quia Emptores: Et jeo denye le case que si avoit seisin devant de ceo come rents service et ceo ne seroit sufficient quaut est secke car le contra 11 Rep. 11 et 5 E. 2. seisin de Rose est bone 20 s. est de'e paye apres per 19 E. 3. Execucon 163. &c. Darraniement per lauter Construccon cenx mischeefes voient follow que touts les Chauntery terres serrout rake up arreere et chescun voet dire que tiel Chauntery Prieest tieut terres de moy per tiel Charge sans, cause on remedy car devaut cest Stattute fuit re­medy per ne unjust vexes ou coutra formam Feoffament Fittarzb. na. br. 10. mes ore per cest Stattute vous ouste le Tenaunt de fairer son remedy ne unjust vexes, ne Poet aver pur ceo que est rent secke. Et in un Wood et Smiths Case fuit a dindge in cest Court que hors de son Fee nest bone plea pur ceo que nest rent fervice.

Avoit ee object que seisin de fealty devaut cest Stattute fuit bone seisin de rent pur avowry mes ore per le Stattute le Fealty est ale pur ceo si vous deprive lui de un remedy doies doner un auter mes fui [...] son folly nemy a procures seisin devaut lestattute de vigilantibus et non dormientibus &c. [Page 41] & ceo est le reason dl livers que le plaint ne dira ne unque seisie apres le temps de Limmitacon 1 M. br. avowry. 107. Seisin Poet ee alleadge gene­rallment mes le traverse doet ee deins 40 anns Dyer 315. 14 H. 7. 1. per Brian 16. Eliza: Warnings Case, et aux les parrolls dl Stattute de 32. sout in le negative que null person &c. car le intention dl Stattute fuit que homes ne serrent appell in question pur services lou le title nest scavoye 5 Rep. 12. 4. que lease pur anns serroit barre per fine pur ceo que est a staier debates. Et 6. E. 6. br. Limmittacons Coppyhold est Barre per le Stattute de Limmitta­cons. Et le Stattute de 21 Iacobi doue le reason. Et Heidens Case 3 Rep. 7, touts mischeefes doient ee deins le remedy.

Objeccon est que le terre est in maynes dl Roy de 60 auns est sans remedy si ne Poet distrainer, apres sans seisin mes il Poet aner le terre hors dl mai­nes le Roy per peticon. Et Harvey, al cestui intent et il teigne que le sane­ing in primo que et ne done cest rent intant que saneing nest forfaue dl reut hors dl Stattute et vaier solemeut al choses preseut Com. Wro. teslyes et Adams Case primo rep Alton Woods Case, et 17 Eliza. Dyer 332. pl. 27. Et Perkins mist cest ground et si vous aves novell reut per voy de reserva­con ne Poet ee per savaut mes per parroll reddendo. Et il agree que saueing in Act de Parlament ascun foits Poet doner come in les cases mise per Crooke donque per ceo saneing in act de Parlament, il navoit plius que il avoit de vaut mes secundo que ceo rent est solemeut alter in respect dl Tenure, mes est le mesme in proporcou et parcell dl mannor, et est consesse icy in plead­ing dee parcell del mannor, et tout le alteracon fait est solemeut del tenure propter absurditatem come est Dyer 313. qùe le Roy teigneroit dl sub­ject. Et il dit que les Iudges in Dyer 313. ne intend que le rent veigne hors dl Stattute, mes que le Stattute save ceo in mesme le manner come le presbi­ter primo avoit ceo, et nemy come rent service propter absurditatem mes que le reut et distresse remaine, &c. Tertio que cest distresse nest solemeut forsque sou ease et issuit doet ee lou nest inter very Snor et very Tenaunt. 2 H. 4. 24. 29 H. 6. 41. 14 H. 4. 17. et 18. 38. H. 8. a Avowry. B. 113 donque le avowrye ne change ceo. Quarto donque le consequence est que serroit deins 32 H. 8. Et il agree le difference mise in Sir William Fosters Case. 8 Rep. 65. et in Rep. 108. cited arreere et il dit que cest case la cite proue ceo mult. Si Snor et Tenaunt soiet: le Tenaunt fait done in taile le remainder in Fee la si le Snor incroach sur le Donee il lier lui mes nemy son issue. Et le reason que il lier est le seisin donque suppose que fuit le very Snor et very Tenaunt devaut le Stattute de primo Snor incroach sur sou Tenaunt et donque il release distres al Tenaunt, et donque le Stattute de primo est sait uncore seisin doet ee alleadge ou autermeut vous easyement leape over le Stattute et il dit que les livers differe mult in lour case de seisin car ascuns diout ne unque seisie est bone plea 24 E. 3. 26. 39 E. 3. 34. 36. H. 6. 25. mes le Conclusion ore per Donor in authority est que doet pleade ne vuque seisie apres temps de Limmittacon Dyer 315. 4 Rep. Bevills Case et 9 Rep. Bucknalls Case est agree le diversity la mise scilt que cest Stattute de 32 H. 8. doet ee liberallmeut expound pur le repose dl Subjects: & voier est que B. Limmitacon primo dit que cest Stattute ouste les auters Stattutes de Limmittacons mes il intende que avoit prist le force del auters Stattutes et le mischeefe serroit, si tiels reuts come tiel est, ou comencement ne Poet ee scavoy ne serra deins le Stattute que people voieat ee idle et negli­gent in clamant enx si poieat vener et monstre reut sur ceo Stattute de pri­mo: et proue seisin devaut le Stattute per le auntient Court rolle, ou Bai­liffes Accounts que est bone Evidence al Jury come le reut perhapps navoit ee paye pur 100 anns et perhapps Poet ee discharge et nul cognize de ceo. Et vucore sur tiel Evidence il Poet recover per lauter construccon & mes Hutton coutra lui: que cest reut nest deins le Stattute de Limmittacons deux choses sent dee consider: primerment coment el in quel mannor cest reut est sane; et ore il prise effect, et avoit sou birthright in cest mannor [Page 39] come est dl saueing. Secundment in quel mannor nature cest rent estoiet al cest iour: Tout que est die del auter part adhunc consiste de 3 obejections solement, &c.

Primerment que cest rent est novel rent et le comencement de ceo ne po­et e'e scavoy donque le consequence est ore seisin est necessary de'e alleadge Et tertio que doet e'e liberall Construction de 32 H. Et ils conclude sur le danger de cest Construction, que le Tenaunt seroit sans remedy si rent soiet claime primerment cest stattute de primo est solement confirmation: mes in a scun mannor creation de cest rent in quantity del benefitte on est de'e consi­der quel force le saneing avoit car est agree que si jeo done ceo rent donque dehors ceo stattute de 32. Et appeirt que ceo rent port effect dl saneing quelcunque doet e'e alleadge in avowry et sans quel na voit title done ef­fect al ceo mes ciy le saueing de necessity doet e'e alleadge ergo, &c. saneing in le stattute doet aner construction solonque le matter si ne soiet repugnant. Et le stattute intende que les averont lour Suoryes arreere, per le saueing in 31 H. 8. de Monasteryes on rent services sout except et ieo avoy vewe les liuers et arguments sur 14 Eliz. Dyer 313. Et la leopinion de Meade est que le terre serroit ore tenus de deux Suors et Roy et veiel Suor, Et est reason que le Tenure seroit revive auxi pur ceo jeo agree que le stattute primo seroit expound liberallment: et compare ceo one auters aun­tient Stattutes de tiel nature le stattute de 7 E. 4. cap. 5. est expound que si Tenauncy veign al roy per attainder, et graunt al auter que le Suory dl common person serra revive br. Revivor 9. Et uncore le stattute est penned, come ceo est issuit que est Equity que ils que perde lour Suoryes sans lour default que tiel saueing seroit liberallment expound Carfi le Suory fuit ex­tinct per ascun act dl Suor cest exposition de distres ne serroit mes sur cest stattute est expound que il aver distres pur ceo et de comon droit & jeo compare ceo al case de rent, fait sur auter stattute. Le stattute de 27 H. 8. de uses ou si home soiet seisin de terre al intent a paier rent al estraun­ger le stattute fait ceux rents bone, et done distresse al party pur eux: et nul de ceux rents sout de deins le Stattute de Limitations, et si feoffment soiet fait al cest iour al intent a paier rent al estraunger on, &c. si poet destrainer sur cest stattute coment nul clause soiet de distresse come Dyer 36. 3 Plo. 21, &c. Et ceux rents avoient lour birth right de cest stattute per cause de distresse done issuit est in nostre case: voier est mesme le rent in touts quallityes beneficial: et in mesme le quantity et parcel del mannor 2 E. 2 Extinguishment 6. et come est in Bevels Case seisin devant est bone sei­sin: apres si ne de veigne rent seck person act demesn et le Signiorye fuit dl part le mier le rent vaier al heir dl part le mier mes le Stattute done cest Construction: Et le matter de avowry est sur le stattute, et est tiel avow­ry que vous alleadge nul seisin que forsque devant le Stattute. Et un tenure devant que est solement a faire lui able daner benefit per le Stattute, si avoit e'e un particular saneing de ceo rent est agree que seroit hors dl Stat­tute de Limitations. Et jeo die que ore est tout un car quant il avoit son case appear al nous est tout un come si cest rent avoit e'e sane, car quaunt un graunt est generall est averrement devant les ludges de un particular de'e deins le general est lout un come avoit e'e graunt come le case est 30 E. 3. Avowry on le Roy graunt al Corporation tiels Liberties que au­ter Corporation avoit, &c. et 6 E. 33. Balliels case et seroit icy in Chres: et nemy in act de Parlament, et coment le commencement de rent ne Poet ee conus uncore ceo comiencement est ore per saueing Poet ee conus come le case est per Athowe quel il agree dee bone ley, &c. Et si soiet Suor et Tenaunt per Fealty et rent de 20 s. et le Suor confirme a tener per rent de 10 s. est fait per le fait et uncore fuit devant. Et si Judgement est bien ground pur avowry pur ce si ce le Stattute de primo participate del essee de cest rent est hors del Stattute de 32 H. 8. est difference inter rents et lauters three choses limitte & voier est que fuit fait: pur le repose del Sub­jects mes coment que nul constitution Poet gain inlargement de temps [Page 43] limit uncore divers choses sout hors dl Stattute come ou release est fait al tenaunt cy long que I. S. avoit issue de son corps, &c. Et in le 3 primer chose-restraine per le Stattute doet e'e seisin mes in Case de rent seisin in ley est suf­ficient pur ceo in case de seisin pur in rent lexposition est pluis favorablemen­pur les Subjects. Et in Beovels Case appeirt que seisin de fealty est sufficient sesin pur le rent, et uncore le Stattute sout. That none shallt make Titles to any rent, &c. Et Dyer 278. ne un al Formedon in descen­der car coment le Stattute est al repose des Subjects uncore tour droits doet e'e preserve & coment que fait alleadge on mischief que le Tenaunt navoit ascun answer car primerment sil navoit asun Tenure devant le Stattute ne sane ceo et pur ceo il poet traverse le tenure, Secundment si soiet nul seisin devant le Stattute nest sane donque icy seisin nest alleadge devant le Stattute mes, nency apres car nest necessary de'e alleadge mes on est tra­versable si le Roy voet doner Licence a fair Feoffment a tener del Feoffor si rent soiet reserve nest requisite de alleadge seisin come fait dit mes pur par­ticular respons ceo die que serva inconvenient que il que perde son Suory: per cest Stattute de 32 H. 8. serra confine al certain temps de aver seisin de son rent.

Ad e'e object que si nul seisin ne soiet bone plea serra difficult a trover si Chan ntery terres fuerout charge one les rents per quel Avowry est fait quant al ceo jeo dye que 31 H. 8. de Monasteries ou est enact que le Roy et ses Pattenntees teuerout Abby terre discharge de dismes sicome le Ab­bot eux teigne est usuall issue mise in triall si ne Abby fuit discharge ou ne­my & non solement doet inquire sil fuit discharge ou nemy al, temps del dis­solution come in Drakes Case est in cest Court ascun voile auerissue de'e prise solement si le Abby teigne terres discgarge al temps de dissolution mes sur demurrer fuit rate que le Sury doet idquire si le Abbee avoit ascun cause a tener les terres discharge al temps dl dissolution car si sic donque le Pattentee serrout discharge coment le Abbee teigne discharger al temps de dissolution, &c. Et uncore ny tiells issues ils inquire de tiel auntient temps come poient deins, cest stattute de Chaunteryer pur rent due hors de Chauntery terres: Auxi nota que le plt ne poet traverse seisin in cest case car nest alleadge per le defendant et ne auxi, besoigne de'e &c. Dyer 305. 6, mes doet vener eins de son part que poet aver advantage dl default dl seisin et il doet demaund judgment dl Avowry, pur default del leisin, &c. Admitte que fuit necessary mes quant al ceo le plt avoit bien plead car il ne traverse cest seisin que fuit alleadge mes monstre ceo per voy de replication: Mes Richardson Chief Iustice argue pur le Defendant. Est de'e consider primerment si cest rent soiet saue. Secundment coment est saue: et cement si le rent est sane per primo E. 6. soiet tier hors de 32 H. 8. Primetment cest rent est saue car le saueing est general a touts rents, &c. which they have, or of right ought to have or might have had. Et ceo est untimely et effectuall saueing nemy un flattering saueing voier est si rent soiet un faits extinct per escheate deferre al Roy que saueing ne Poet re­vive cest mort chose come est 27 H. 8. br. Parlament 77. mes per cest liuer. Et Davyes 264. a. appeirt que chose in esse come nostre rent al temps dl fea ans de un act Poet e'e bien saue per un saluo: Et nemy semble al Dean de Norwiches Case in Wallsinghams Case 563. lou leases merge ne Poet e'e saue per un saueing. Et issuit. Dyer 23 Plo. 2. Le Stattute de Mo­nasteries done al Roy terres del Abbots in mesme le plight sauaut droit dl Estraungers. Et donque le Abbott de Ramsey apres le act graunt le pro­chin avoidance al Mountagne Chief Iustice que donque surrender uncore cest de saluo ne extend al cest future droit et title de Monntague Carper le former part dl act de Abbot fuit disable a graunter ceo et il cite 313. & in primo Rep. 47 a. et Kell. 104 a. ore le averment in le pleading que le Suor Windsor fuit seisie de cest rent per le maynes darraine Presbyter proue per moy que ceo fait rent in possession & issuit bien saue, que nest solement [Page 44] rent in droit. Et uncore jeo teigne que le rent in droit de quel naver seisin devant le Stattute de primo E. 6. uncore est sane per le Startute. Et si poies happen seisin apres, le stattute & si fuerout arreages due devant le Stattute jeo teigne que ceux sont sane: Car ex vi termini le Suor Windsor doet aver cest rent in the same Mannor come devant le Stattute et devant ceo il doet aver Arreages. Et nest semble al Ognells Case 4 Rep. car la le Suory fuit de­termine per le act dl Suor mesme et donque est reason serra perdue mes icy est determine per le Act in ley. Et si ceux Parrolls rents in such Mannor ne voient sane Arreages al Suor uncore sont expressement sane al lui per auters Parrolls deins le saueing. All commodities, duties, &c. deins quel sans doubt Arreages fout includes Et jeo ne conceive le reason pur que les fea­sons de 31 H. 8. de Monasteries except rents hors de long saueing intant que fuerout verement due hors de les Abby terres. Et le exception des rents fuit omittant cest exception in primo E. 6. monstre de lui de'e que rents sout sane icy. Secundment donque coment cest rent est sane: car Crook ad dit que saluo est solement Parroll de exception et nemy create chose de novo jeo agree in proper Parlaunce doies aver Parolls de revew­ing si vous create rent chofe de novo create contra reddendo 2 H. 3. Graunts 89. Graunt de parsonage savant al Graunter presentation del viccaridge est bone 35 H. 6. 34. 12 E. 4. 1. saluo sane solement chose in esse et issuit saluo dominico ne sane solement le auncient services et release al Tenaunt per fealty et rent sauant le rent uncore cest rent est rent service come de­vant & fealty incident intant que est le auncient rent et 26 Asss. 66 et ouster coment les Parolls in le saueing in primo E. 6. sout such rents. Et cest Parroll such nest Parroll de similitude uncore jeo ceo voile agree que sout Parolls de fealty, et tant amount come le mesme in quantity profit & temps de payment mes nemy the same in formality, et in quallity les Parrolls del Stattute ne alter ceo mes le Construction del ley sur les Parrolls de primo ad alter cest rent service dee rent seck si fuit devaut le Stattute. Tenaunt pur vie dl Suory le remainder ouster in Fee le rent alera accordaut pius le Stat­tute si Issuit si suory devant fait descend dl part le mier loufuit sur con­dition de rent pius primo E. 6. serra, in mesme le plight mes in quallity nest cest rent est meerement un rent seck: Jeo agree que le veiel seisin serve pur cest rent quia le Suory est extinct per Parlament nemy per le Suor mefme 4 Rep. 11. mes pur ceo que le Parlament ad destroy le Suory et saue sole­ment le reut est reason que ceo serra favour et jeo teigne que primo E. 6. done distress pur cest rent deins ceux Parrolls sane in like manner, as if this Act had not been made. Et in Littleton 232. le common ley done distresse pur ceo que le measualty est extinct sans son act; mes ny in nostre case rent est novel in natute et quallitie primo E. 6. suit ore rent seck & eeaunt distrain­able de common droit, &c.

Tiercement ceo teigne que est hors del Stattute de 32 H. 8. car le Stat­tute extend solement al Avowries & Conusances, nul Actions & Conusan­ces souts hors de ceo come appeirt per 9 Rep. 33. Bucknlals Case, & 4 Rep., 11. Bevells Case Com. 94. & Woodlands Case, 8 Rep. 64. Fosters Case, Avowry pur saueing Fealty pur covering sale del Suor ou pur writing sur liu sout hors de cest Stattute et issuit touts accidental services et un uncore les Parrolls sout shall make avowry for any rent seck est hors de cest Stattute, pur ceo que done nul Avowry pur cest Charge de rent per fait rent service due per Reservation deins temps de memory est deins ceo. Et jeo teigne encounter Yelverton que rent per prescription est deins cest ley carnient ob­stant que seisin doet ee alledage in avowry pur ceo uncore le seisin nest traverseable mes les prescription ou composition que est le foundation de cest rent 26 H, 8. plo. a. un Avowry pur rent per prescription que un doet paier lui pur comon en son terre la al fine Fitz herball: dit que le Avowant doet alleadge seisiu mes jeo teigne que ceo nest traverseable & nest pardon pur default de seisin car uient obstant que est & 14 H. 7. primo. Si rent [Page 45] charge est Graunt devant temps le memory & nul possession monstre de ceo deins temps de memory que le Grauntee est sans remedy ceo doet in­ee intend que ne poet compeller le Graunter a douer seisin mes sil happa seisin un foits est bone & ou apres mency le seisin mes le prescription doet ee traverse: Et jeo agree que est mult regarded in nostre ley, ceo eeant de droit. Et que seisin per manes de Stranger ou de un Infant est bone come est in Bucknalls Case, mes ceo est solement in cases lou seisin est requisite. Et seisin est solement necessary la lou il est traverseable et lou il est traverseable & lou il eeunt ewe per incroachment il liera seisin & ver­bum operativum deins le Stattute de 32 H. 8. est matter inter very Suor & very Tenaunt pur rent service come Fosters Case mes nostre Case est de de Avowry per rent seck & in ceo seisin. Jeo teigne que nest material. Et jeo teigne que seisin nest traverseable mes lou seisin; per incroachment le in Bucknells Case & Woodlands Case: le difference sout mise lou Tenure serra traverse & lou Seisin. Et sur tout ceo appeirt que Seisin nest matteriall lou incroachment ne nomminer donque ceo mitt le Case que Suor Windsor pius le Stattute de primo Ed. 6. use incroach un Chien ceo ne noyer le Te. naunt in Avowry pur ceo que le Stattute de primo E. 6. est le title dl Suor. Et il poet avow pur nul chose si non ceo que est sane lui per le Stattute mes quant al Case mise per Harvey devant le Stattute. Suor Windsor la in­croach 20 s. lou son auntient rent fuit 10 s. et donque veigne le Stattute south favor. Jeo conceive que il in apres bien Avower pur cest 20 s. pur ceo que seisin est bone Title inter. Suor & Tenaunt in Avowry apres le Stattute le Tenaunt est laise in mesme le plight come Stattute troue lui Aux le Stattut de primo E. 6. sane touts such rents as any have, or might have had issuit que il ayunt cest rent per Incroachment quant est fait per le Stattute ceo est sane al lui, &c.

Mes ore est a voier coment doies demean vous icy in Avowry pur rent Seck 9 Rep. Ascoughs Case monstre quant avows nemy sur very Tenaunt doies a vower sur le matter & mitttomus de rent Graunt per Equallity de partition quel est distrainable common droit el Poet ee Graunt sans fait hors de mesme terre quel est in partition 33 H. 6. & doet intend sur le cest in a que le Graunt 21 H. 6. 2. 6. 15. 8 E. 3. 16, &c. Mes ore pur le rent si avows ne doies alleadge seisin. Et si vous alleadger ceo uncore nest tra­versable mes avowry doet ee sur le matter. Et Incroachment ne avoyer issuit lou measnalty nest conveigh forsque al surplusage seisin nest traverse­able Incroachment ne noier. Et pur ceo est hors de 32 H. 8. Et ceo ne scavoy Cases lou de rent seck est distrainable de commrn droit seisin Poet ee traverse si foret alleadge. Et si ascun puist ee monstre jeo ne doubt mes ceo voet ee alleadge per ascuns des freres & come rent sur partition attend sur le terte, &c. issuit cest rent seck que est sane per cest Stattute ala one le mannor, et est parcel de ceo come 21 As. 23. rent seck est par­cell est mannor ou auterment le defendant ad Title al ceo, &c.

Objection est que est cy veiel que le comencement de ceo ne Poet ee conus et est nul fait de cest rent. Et coment ne doies alleadge seisin de ceo in A­vowry uncore jeo poy monstre que navera seisin deins 40 anns. &c.

Respons est que cest rent comence dee rent seck per primo Ed. 6. & cest Stattunte avoit mesme le force a preserver cest rent hors de 32 H. 8. come un fait ou record ad e'e. Et le Stattute al rent est sicome le prophette que raise de mort le fitts dl widdow & done vie al lui de fitts fait in vie devant mes uncore bien Poet ee dit que le prophet done vie al lui issuit cest rent fuit occide per les premises del Stattute per 1 E. 6. le saueing sait ceo un in vie que est le al me de cest rent, Et pur ceo ceit saluo doet ee monstre in avowry pur cest donque 7 E. 4. 27, 29. E. 44. St le comencement del Suory Poet ee monstre ne doet ee alleadger seisin issuit de rent et coment que jeo doye in mon Avowry monstre que la fait ou rent service devant cest Stattute uncore ceo doye rely sur le saueing de cest Stattute 35 [Page 46] H. 6. 3, 4. 22 H. 6.3. Avowry 73. Si Suor confirme a tener per mein­der services si soiet recite in Avowry est sufficient sans seisin & nul inchroach­ment pius tiel Confirmation noyer, donque est un fait original ou un con­firmation sur in case dee hors de ceo Stattute de 32 H. 8, issuit voile le Stat­tute de primo E. 6. Crook ad agree si le saueing ad ee particular de 18 al Su­or Windsor que est que cest case nest deins 32. donque averment fait ceo cy certain. Et si le saueiug est ee al le Suor Windsor. All rents by which the Land is held of him donque avoit est bone: et hors de 32 H. 8.

Objection est icy est generall que nihil certi implicat, &c. mes certum est quod certum reddi potest come les cases mise cite per Hutton quel jeo con­ceave auxi sur le matter al primes, le Roy graunt easdem Libertates que S. avoit Poet ee fait certain per averment que S. ad tiels Liberties, &c.

Objection 32 H. 8. doet ee prise liberallment [...] Voier que all Avow­ries & Conusances mes le Stattute est de petit faire car si replevin soiet con­vert al trespasse est hors de de cest Stattute 10 H. 6. 1. Long 5 E. 4. 87. Et in trespass poier traverse le tenure non solement le seisin hors dl Avow­ry in que le Avowant est Actor, &c. Objection 32 H. 8. suit sait pur le re­pose & quiet des homes, &c.

Respons solement in Actions deins cest Stattute & in eux le Stattute avera liberall Construction que urors ne serra inveigle quel daunger cest icy pur ceo que le Stattute fait Title ee Accounter & est nul mischief car poies traverse le tenure ou seisin devant le Stattute de primo E. 6. &c.

Mes adee dit que Stewards books Courts Rolls ou Bailiffs accounts poieat ee monstre & port eins pur Title al rents extinct per leases ou, &c. uncore jeo die que ceux matters doient ee laise al Iury & tiels choses in eux mesmes sout bone Evidences. nous veiennus 7 Rep. Farmors Case que le stattute de Fines est avoid per fraud & agreement des parties & ad ee confesse poiet toller. Le Case hors de 32 H. 8. come release.

Executrix of Henry Hassel.

IOne Hassel makes a Lease to H. Rassel of 3 Closes for 20 years, if he should so long live. Henry Hassel dies, and debt is brought a­gainst his Executor for rent reserved upon that Lease, who pleads that before the day of payment, he assigned two of the Closes to a Stranger. And upon demurrer Iudgement was given for the Plaintiff. For if there had been an assignment of Henry: If he did not give notice to the Lessor in acceptance of the rent, he shall be charged. Quod nota.

Iudgement in Debt.

IF Iudgement be given in debt, and a Scire facias brought against the Executor, who pleads ne unque Executor, ne unque Administrator. &c. And it was found against him, yet it was agreed by the Court that the Execution shall be de bonis Testatoris tantum. For that, that the Execution shall have relation to the Iudgement. And the Scire faci­as is to make known that they had not Execution upon the first Iudgment, which extends to the goods only of the Testator. And so it was said by Moyle Prothonotary, that it was rul'd in 5 lac. in this Court.

If a Iudgement be given in Debt, and the mony is paid to the Attor­ney of the Plaintiff. Although that the mony miscarry with the At­torny, yet the payment is good. But if a Scrivener is imployed ge­nerally to put mony to use for a year; and the mony is paid to the Scri­bener, who breaks, or does not pay the mony, The payment does not [Page 47] excuse the party. But if he receives it by special Command, &c. that is a good cause of Equity.

In Avowry.

IN an Avowry for Dammages feasant, the verdict is found for the Avowant; And a Returno habend. granted for the Cattell, and a Ca­pias ad satisfaciendum for the Costs and Dammages are payed. The Sheriff cannot execute the Returno habendo. But if it be executed and Costs afterwards paid upon the Returno habendo; A Writ De si constare poterit shall issue to the Sheriff, for delivering the Cattel, upon a surmise and payment of the costs, &c.

A Prohibition.

DAvenport moved for a Prohibition, for that, that an Executor who resided within the Tower, (which is a peculiar Iurisdiction as it was surmised) was sued in the Prerogative Court for a Legacy; and that upon the Statute of 23 H 8. cap. 9. And Henden said, that a Prohibiti­on might not be granted, for two causes.

First, The Statute is general, That no person, &c. then there is a proviso, That this Statute does not extend to any probate of Wills in the Prerogative Court. Then a Legacy cannot be recovered in any other Court. For if a Will be proved there, no inferiour Ordinary will meddle with that Will; and alwaies they had the execution of all Wills proved there in that Court

Secondly, It is pretended, that the party is cited out of a particular Iurisdiction. But that is not a Iurisdiction within this Statute. For no Iurisdiction is intended, but where there is an Ordinary; But in the Tower of London there is no Ordinary. But it is but as a Lord of a Mannor, who had probate of Wills: which is but a lay Iuris­diction, &c.

Thirdly, There is no Ecclesiastical Iurisdiction there. But Daven­port replyed, That although for the present time, no Ecclesiastical Iuris­diction is executed there, because the Lord is dead; Yet Spiritual Iuris­diction is executed there. Hutton said, If there he cause de bonis nota­bilibus, Then the Archbishop had the Prerogative, and might cause the proving of the Will. But it stood with reason, That where an Executor is tyed to perform the Will, which may be there sued, and the property of sute ought to be there, where there is cause of Preroga­tive. Harvey, If there be cause of Prerogative, and proof of the Will in the Prerogative Court. Yet in the inferiour Iurisdiction, the party will be compelled to prove the Will also. But by Crook and Hutton minus juste.

An Action of Battery.

AN Action of Battery is brought against two, and one dies before tryall, and it was entred upon the Roll, But the Venire facias was awarded against both, and dammages assest. And by Yelverton, it cannot be amended. For it was not the Act of the Court, but of the Iury; So that now dammages cannot be severed. For although he may have the entire dammages against which he will, yet if they be severd you will then oust him of his Election. Quod non fuit negatum.

A Prohibition.

IN a Motion for a Prohibition, where the Ordinary would make di­stribution, It was agréed ( Richardson being absent.) That if the Ordinary commits Administration to the Wife of the Intestate; that he cannot revoke that. But if he grant Administration to one as Prochein de Sank, and another more near of Blood comes; He may revoke. And because the Administration being granted all the power of the Ordi­nary is determined, and then he cannot make distribution; And if the Administration be one time justly granted, the Grantée had a just Inte­rest which cannot be revoked. And although it was urged that those Prohibitions were not granted untill of late time; yet they say, those things passed Sub silentio. Yelverton, They cannot grant Admi­stration before a division was made. And by Crook and Harvey. An Action upon the Case lyes against the Ordinary, if he will not grant Ad­ministration, where he ought. And at an other day it was moved by Finch Recorder, That such a Prohibition could not issue in one Davyes Case. And Richardson said, That because, that that Case was a Case of Extremity. For Davyes had not any thing or portion allotted him by his Father who was dead. And his Mother who was Administratrix, turned him out of her House without any maintenance; stopped the Prohibition which was granted before. And said that it was in the discretion of the Court to grant such a Prohibition or not. But Harvey and Crook said secretly betwéen themselves, that it was not in the discre­tion of the Court.

Garton against Mellowes

AN action of Battery was brought by Garton against Mellowes. And the Plaintiff pleaded a Recovery by the same Plaintiff for the same Battery in the Kings Bench against another who joyned in the Battery. And the Piaintiff replies Nul tiel Record. Vpon which they were at issue; and the Record was brought in at the day assigned. And these variances were objected for to make it fail of a Record.

And first, The award of the Dist. jurat. in the Kings Bench is Coram domino Rege. and there it was Coram domino nuper rege. But not al­lowed. For the King died before the Plea there, and then it ought to be so pleaded.

Secondly, That in one Record the Plaintiff is Generosus, in the other Armiger. Brampston said, That that was such a variance which could not be amended. Dyer 173. One recovers in debt by the name of I. Cives and Sadler. And the Defendant brought Error, and removes the Record inter I. Civem & Salter, &c. And it was rul'd that the Record was not well removed upon that Writ. Dyer 178. Plo. 8. Vpon Nul tiel Record there was a variance in the day of the Return of the Exigent, and in the place where the Outlary was pronounced; And adjudged a variance which could not be mended. And now here there cannot be an amendment because it is after tryall. And by amendment, there might be a cause of changeing the Plea. For he took that Issue, by reason of the variance, and after verdict there cannot be an amendment, Mich. 2 Jac. Kings Bench, Tayler and Fosters Case. In an Ejectione firm. upon a Lease made 10 Iunii, and upon not guilty pleaded it was found for the Plaintiff. And in Error, it was assigned for error, that the Imparlance roll was 10 Iunii, and Issue roll the 12 Iunii: and it appeared there was a rasure. And it was agréed, that if it was after verdict it could not be amended. Atthowe, This variance is not substantiall. And the cases [Page 49] put do not make to this case. For Salter and Sadler are two severall Trades. And it cannot be intended the same man; for he may vary in his action as he pleases. But the Court said nothing to that Excep­tion.

Thirdly, In the Record of Nisi prius there was another fault. It was agréed, that a Material variance cannot be amended. Yelverton said, That he might have new Execution. For he pleaded a recovery and execution in Bar, and that they came to take, whereof he had failed; For that it stood now as another battery. For it does not appear by the Declaration of the Plaintiff, &c.

Smith against Sacheverill.

AN Action of Wast is brought by Smith against Henry Sacheverill, and declares, Whereas Henry Sacheverill the Grandfather was seised of these Lands, he levyed a Fine of them, to the use of himself for life, with power to make a Lease for three lives, and after to Smith his son for his life, the remainder to the first begotten son of Smith in tayle. The Grandfather makes a Lease for three lives, and dyes, and Smith and his first begotten son bring this Action of Wast against the Lessee; and they assigne their wast in killing red Deer in a Park; and upon nul wast plea­ded, it was found for the Plaintiff; and Finch Recorder moved in arrest of Iudgement first, for that they assigne the wast in a Park, where the wast is in Land, &c.

Secondly, Because that that Action did not lye for them both alike; for if the Grandfather, and he in the remainder in tayle, had joyned in a Lease, yet they could not joyne in wast. The Books are, If Tenant for life, and he in the remainder joyn in a Lease, they may also joyn with wast. 21 H. 8 14. Although 19 H. 7. be put otherwise. And 2 H. 5. Sir William Langfords Case. Two joynt Tenants to the Heirs of one of them, and they make a Lease for life: And it was adjudged that they might joyn in wast; for the Tenant for life had a reversion for life, and had not made any Forfeiture. If the Grandfather and he in remainder had joyned in a Lease, and afterwards in wast, it had been naught; for the lease came out of the first root. And it was resolved Tr. 2 Jac. Kings Bench, Poole and Browses Case, That one in remainder cannot have wast, where there is an intermediate Estate for life. Yelverton and Hutton did not believe the Case of 2 Jac. Crook. If there be Tenant for life with such a power, &c. of Lands held in capite, he may make Leases for life without Licence of Alienation, and well proves this cause, Yel­verton and Hutton. For the wast being assigned in a Park, it is good; for a Park is Land. Sed adjournatur.

Hodges against Franklin.

TRover and Conversion is brought by Hodges against Franklin. The Defendant pleads sale of the Goods in Marlborough; which is a Market overt, and the Bar was well pleaded; and an Exception was ta­ken; For that, that it is not said that Toll was payed. It was said by Hutton, That there are divers places where no Toll is to be paid upon sale, in Market; And yet the property is changed, and Iudgement accor­dingly.

Grimston against an Inn-keeper.

IN an Action upon the Case, it was said at the Bar, and not gain-sayed, That they ought to say in the Declaration, Trasiens hospitavit, for if he board or sojourn for a certain space in an Inne, and his Goods are stol­len [Page 50] the Action upon that is not maintainable: And for omission, although the Verdict was given for the Plaintiff, Iudgement was given Quod nihil capiat per billam, upon fault of the Declaration, and he paid no Costs.

Wilkins against Thomas.

IT was said by the whole Court, That a consideration is not traversa­ble upon an Assumpsit, but they ought to plead the generall issue, and the Consideration ought to be given in Evidence.

Ireland against Higgins.

IReland brought an Action upon the Case against Higgins, for a Grey­hound, and counts that he was possessed ut de bonis suis propriis, and by Trover came to the Defendant; and in consideration thereof promised to re-deliver him. It seemed to Yelverton, that the Action would not lye, and the force of his Argument was, that a Grey-hound was de fera natura, in which there is no property, sed ratione fundi, live Deer and Co­neys, and vouchd 3 H. 6. 56. 18 E. 4. 24. 10 H. 7. 19. for a Hawk; for Hares are but for pleasure, but Hawks are Merchandable. This diffe­rence in 12 H. 8. is allowed, so long as a Dogge is in the possession of a man, an Action of Trespasse lyes, detinue or replevin. But no Action if he was out of his possession, and so had not a property, then there is no consideration, which is the foundation of an Action. Hutton to the contra­ry, and said the whole argument consisted upon false grounds; as that a Dogge is ferae naturae. Which if it were so, he agreed the difference in 12 H. 8. But he intended that a Dogge is not ferae naturae; for at first all Beasts were ferae naturae, but now by the industry of man they are correct­ed, and their savagenesse abated, and they are now domesticae, and famili­ar with a man; as Horses, and a tame Deer, if it be taken, an Action lyes. Rogers of Norwich recovered Damages pro molosso suo interfecto. And 12 H. 8. So of a Hound called a Blood-hound. And a Dogge is for profit as well as for pleasure. For a Dogge preserves the substance of a man in killing the Vermine, as Foxes. And now is not an Horse for the pleasure of a man? for a man may goe on foot if he will, and an Horse is meat for a man no more than a Dogge. Therefore an Action may lye for the one, as for the other. And for a Hawk, he ought to shew that it was reclaimed, for they are intended ferae naturae. One justifies in 24 E­liz. 30. for a Battery, because he would have taken away his Dogge from him. A Repleavin was brought for a Ferret and Nets, and a Fer­ret is more ferae nat. than a Dogge. Seale brought 25 Eliz. Trespass for taking away his Blood-hound; and there it was said to be well laid. And then now if he has a property, the consideration is good enough to ground an Assumpsit: It is adjudged that a feme dowable: The heir pro­mises to endow her before such a day, and the Action is maintainable up­on that by the Court. Intraturudic. pro quer. if no other matter were shew­ed by such a day.

Jenkins Case.

HE brought an Action upon a promise to the Plaintiff, That if he marryed her with the assent of her Father, she would give him 20. l. Adjudged a good consideration by the Court.

3 Car. rot. 414Sir Edward Peito against Pemberton.

SIr Edward Peito is Plaintiff against Pemberton in a Replevin, and the Defendant was known as Bayliff to H. Peito, and said that H. Peito the Grandfather had granted a Rent for life to H. Peito the Son, to com­mence [Page 51] after his death. The Plaintiff confesses the grant, but sayes, that after the death of Peito the Grandfather, these Lands out of which the Rent issued, descended to Peito the father, who made a Lease for a thou­sand years to the Grantee, and dyes. The Avowant confesses the Lease, but sayes, that before the last day of payment, he surrendred to the Plain­tiff. Vpon which there was a Demurer; and the question was whether the surrender of the Lease would revive the rent. Harvey, If he had assign­ed the Lease to a stranger, the rent had been suspended. 5 H. 5. One grants a rent charge (who had a reversion upon a Lease for life) to commence immediately; there the question was, when the Lease was surrendred, whether the rent now became in esse, because that the Lease, which privileged the Land from distresse, is now determined in the hands of the Grantor himself. Crook. If the Grantor had granted reversion to a stranger, and the surrender had been to him; It was clear that the suspension had been for the term. Hutton. If a man seised of a rent in Fee, takes a Lease of Lands, out of which, &c. for years, and dyes; the Executor shall have the Land, and yet the heir cannot have the rent. Harvey. In this Court it was the case of one Asham, who had a purpose to enclose a Common, and one Tenant was refra­ctory, wherefore Asham made him a Lease of the soil, in which he had Common, and afterwards he surrenders it again. And it was agreed that the Common was suspended during the term. Crook. A Lease for years is by the contract of both parties, and the surrender may revive the rent; but by the surrender the arrearages shall not be revived. And suppose that the surrender was by Indenture, and a recitall of the grant, that is a grant; and then it is expresse, that by the surrender their intent was, that the rent should be revived. 3 H. 6. A surrender determines the in­terest of all parties, but of a stranger. But it is determined to themselves to all intents and purposes. Crook. It was one Cooks Case against Bul­lick, intrat. 45 Eliz. rot. 845. Com. ban. It was there adjudged, and this diversity was taken, If one devise Lands in Fee, and after makes a Lease for years of the same Lands, to the Devisee, to commence after his death, it is a countermand of his will; if the Lease was to commence pre­sently, it is no countermand; and the reason is, In the first case both can­not stand in Fee, the Devise and the Lease. But when the Lease com­mences immediately, he may outlive the Lease. And this Case is put upon the intents of the parties. But Henden, This Case is also adjudged, If two Tenants in Common are, and one grants a Rent charge, the Beasts of the other are not distreinable. But if a Tenant in Common takes a Lease for years of another, his Cattel are discharged again. But Yelverton and Hutton doubted that Case, and so it was adjourned to be argued, &c.

Thomsons Case.

THompson libells for delapidations against the Executors of his prede­cessor, and Henden moved for a Prohibition; for that that Thomp­son is not incumbent, for his presentment. was by the King ratione minori­tatis of one Chichley, and the King had not any such Title to present; for where the King mistakes his Title, his Presentment is voyd, and he is no Incumbent. 6 Rep. 26. Greens Case. And Sir Thomas Gawdys Case, where the King presented jure praerogat. when he had another Ti­tle; and the present Action was adjudged voyd, and whether he is incum­bent or not, that shall be tryed. But by the Court a Prohibition was de­nyed, because that he was now incumbent. And the Iudges would not take notice of the ill Presentment of the King. But in case of Symony the Statute makes the Church voyd, and then the Iudges may take no­tice [Page 52] of that, and grant a Prohibition, if the Parson sues for Tythes. But if a quare impedit be brought, and appears that the King had not cause of Presentment, then a Prohibition may be granted: which also was gran­ted by all the other Iustices.

Richard Youngs Case.

RIchard Young was Demandant in a Formedon, and admitted by Prochein amy, and the Warrant was allowed by a Iudge, and it was certified and entred in Gulstons Office in the Roll of Remembrance, but it was not entred in the Roll as the course in the Common Bench is, and after Iudgement is given for the Plaintiff. And for that Formeden the Defendant brought a Writ of Errour, and removed the Record, and as­signed it for Errour. And before in nullo est erratum pleaded. And Daven­port moved that it might be mended, for he said that there was a diffe­rence between that Court and the Kings Bench, as it is in the 4 Rep. 43. Rawlins Case; for the Entry of the Roll was Richard Young came et obtulit se per atturnat. suum, where it should have been proximum amicum. And the Entry in the Remembrance Roll was, That he was admitted per Gardianum, Richardson said, that all the Books are, That an infant ought to sue by Prochein amy, and defend by his Guardian, and so is a Demandant. But the Court agreed, That that should be amended ac­cording to the Certificate. As a speciall Verdict should be amended, ac­cording to the Notes given to the Clerk. And Davenport said that he would venture it, although it was by Guardian, for he held it all one, if it were by Guardian, or by Prochein Amy. See afterwards more of this.

The Vicar of Cheshams Case.

THe Earl of Devonshire had a Mannor in the Parish of Chesham, in Buckinghamshire, which extended to Latmos, where there is a Cha­pell of Ease; and the Vicar of Chesham Libells for Tithes, against one of the Tenants of the Mannor. And Henden moved for a Prohibition, for that that the Earl prescribed, that he and all his Tenants should be ac­quitted of all the Tythes of Land within Latmos, paying 10. s. per. ann. to the Chaplin of Latmos. And he said that such a Prescription is good, as it was adjudged in Bowles Case. And a Prohibition was granted.

Wildshieres Case.

IT was agreed by the whole Court, That for Executing of a Capias ut­lagatum, or for a Warrant to Execute it, or for a return of it, no Fee is due to the Sheriff, &c.

It was afterwards agreed upon an Habeas corpus sued by Wiltshiere, who was imprisoned, being under-Sheriff, by the Lord Chamberlain, for arresting Sir George Hastings Servant to the King, upon a Cap. utlagat. That he may well doe it upon the Servant of the King: for it is the Sute of the King himself, and he is sworn to serve it; and there is no cause of the Commitment returned, but only a recitall of the Commitment, unless he was released by the Lord. And the Iudges took exception to that, and said that it ought to be, unless he can be released by the Law; and said, if no cause be returned, they ought to dismisse the Prisoner: And they ordered the Keeper to inform the Lord Chamberlei [...]; and that their Opinion was, and so was the Opinion of all the Iudges of England, That he who procured the Commitment of the under Sheriff, ought to pay all the Charges and Expences. Quod nota.

Wentworth against Abraham.

THe Lord Wentworth brought an Action upon the Case, against Abra­ham, upon an Assumpsit, and declares that the Defendant 1 die Maii, Anno Dom. 1625. in consideration that the Plaintiff would permit the Defendant to re-enter in a Messuage, and Croft, in which the Defendant had dwelt before, promised that he would pay to him 30. s. yearly, during the time that he should enjoy it. And that he permisit ipsum reentrare, and that he should enjoy it a year and an half, which ended at Michaelmas, 1626. And for that he would not pay 45. s. he &c. And upon non As­sumpsit pleaded, it was found for the Plaintiff. And it was moved by Davenport, in Arrest of Iudgement, for that that the Assize is to pay 30. s. Annuatim; then before the Action be determined, nothing is due, and the Plaintiff cannot divide the Rent, 5 R. 2. Annuity 21. Debitum Judex non leperat. Then when it does not appear that the Action lyes for the 15. s. for the half year, and the Iury assessed Damages intirely, it is voyd, as 10 Rep. 130. Osborns Case. And it appears that by his compu­tation of time, it is not a year and an half from the time of the Assumpsit made. Richardson said, That it is not secundum ratum, for then he might divide the Rent; and no day is limited for the payment of it; for if a Lease be made for two years, or at will, paying annually at Michaelmas, 30. s. and the Lease is determined after half of the year; although that it be by the Lessee himself, he cannot make any Rent. But Yelverton said that that is not a Rent, but a collaterall sum. And debt does not lye for that. And in the Declaration it is said, Quod permisit ipsum reentrare, and does not say what time, which was nought by all but Hutton. And it ought to be also that he did de facto re-enter. Hutton said, There being it is said, So long as you shall occupy the Land, you shall pay annually, &c. That he may demand half of the year. But the whole Court a­gainst him, and so Pro hoc tempore, judgement was stayed.

Grange and his Wife against Dixon.

A Lease was made by Baron and Feme, and another Feme, and the Lessee Covenants by the same Indenture, to find sufficient mans meat and horse meat, to the Baron and Feme, and to the other Feme, or to their Servants at their coming to London, at his house in South­wark. The Baron and Feme dye, and the other Feme takes an hus­band. The Opinion of the Iustices was, that he was not bound to find sustenance for the husband, but only for the wife, or for her servants, and not for both at one and the same time, because the Covenant was in the disjunctive. But it was doubted if he shall find them Victualls for one meal only at their coming, or for all the time of their staying there.

Johnson against Williams and Uxor.

IT wad said, If an Obligation be made by a Feme sole, and afterwards she takes an husband, and an Action of debt be brought upon that Obli­gation against the Baron and Feme, and they deny the Deed; the Ba­ron shall be taken for the Fine as well as the wife, for the wife had no­thing whereof to pay the Fine. And so in Trespasse against Baron and Feme, dum sola fuit, and they are both found guilty, both shall be taken for the Fine, which the Prothonotaryes agreed.

Jeakill against Linne.

IN a Writ of Covenant, the Plaintiff counts upon an Indenture of Lease of the Parsonage of Dale, by which the Defendant Covenanted to pay him the Rent, the which he had not payed. And the Defendant said, that before any day of payment of the said Rent incurred, one A. Or­dinary of the same place sequestred the said Parsonage for non payment of the first fruits. Iudgement. If an Action, &c. And by the Court, that is not a Plea; for he does not shew that any Act was done by the Plaintiff himself in his default. Nor he does not confesse and avoid the interest of the Lessor, as to say that the Lessor was a disseisor, and made a Lease to him after that the disseisee re-entred; and so he might confesse and avoid the Lease, notwithstanding the Deed indented. But he cannot say that the Lessor had nothing, at the time of the Lease made. And if the Defendant had been bound in an Obligation for the payment of the said Rent, in debt brought upon that, that should not have been a Plea; for he had bound himself to pay the said Rent. And the occupation is not materiall where the Lease is for years or for life. But otherwise of a Lease at will.

Davies against Fortescue.

IF a man (it was said) be seised of a Mannor, whereof there are di­vers Copy-holders admittable for life or for years; and he Leases the Mannor to another for term of life, the Lessor may make a Demise by Copy in reversion, to commence after the death of the first Copy-holders, and that is good enough. But the custome of some Mannors is to the contrary, and that is allowed.

Doyly an Infants Case.

A Man seised of Lands makes a Feoffment in Fee by Deed indented, rendring a Rent, with a clause of Distresse, and afterwards he is bound in a Statute, and the day is incurred. Vpon which an Execution is awarded to the Conusee; and upon the Extent, the Sheriff returns that the party was dead, and that he had extended the said Rent. And the heir of the Conusor being within age (because the Rent was extended during his nonage) brought an Audita querela, and Hutton said, That it is maintainable enough, because there is an Exception in the Writ of Ex­tent, That if Land be descended to any Infant, that the Sheriff shall surcease to extend. And although that Writ issued against the party him­self who made the Conisance, yet when it appears by the return of the Sheriff, that he is dead, the Infant shall be aided by an Audita querela, or otherwise the Extent shall be void, which is made upon the possession of the Infant.

Jeffryes Case.

IN a Formedon, the Plaintiff counts of a gift to his Father, and to his heirs of his body ingendred during the life of I. S. and makes the de­scent to him during the life of I. S. And Yelverton seemed that the Writ is good enough; for a Tayle may be made so determinable, as well as a Fee simple. And if a man Warrant Lands to the Feoffee, and his heirs, against him and his heirs during the life of I. S. That he had a Fee sim­ple in the Warranty determinable upon the life of I. S. So here.

Warberlyes Case.

IN a Writ De valore maritagii, it was moved by Henden, If the Lord shall recover his Damages according to the value of the Land held of him only, or according to all his Lands held also of others. And Hutton and Crook said that the value of the Marriage shall be accounted, as well in respect of the lands held of him, as of other lands held of other Lords by Posteriority, or in Soccage; for there the woman by the Marriage to him shall be more advanced. And the better the advancement is, the bet­ter is the Marriage of the heir, and the person more to be esteemed.

Norbery against Watkins.

ONe Devises the Mannor of S. to two and their heirs betwéen them to be equally divided, so that they shall have part and portion alike. If by that they have a Ioynt-tenancy, or a Tenancy in common was the Question, because there was an Act to be done for making the division. And if the words had béen equally to be divided by I. S. it had béen clear that they had béen Ioynt-Tenants. But Harvey said, That upon such a gift made to them, if the one of them dyed before partition, yet their heirs should hold severally, according to the intent of the Will; for otherwise the Surviver should hold place, which against the will of the Devisor.

Northens Case.

A Man seised of a Mannor, having all the Goods of Felons de se within the same Mannor, and makes a Lease for years of parcell of the same Mannor to a man, and afterwards makes another Lease of the same Lands to commence after the determination, surrender, or forfeiture of the first Lease. The first Lessée was a Felo de se, the Lord Lessor of the Mannor enters into the lands Leased as forfeit, and the second Lessée ousts him; and it séemed to Crook that the Entry was lawfull enough. Harvey said, That the Lessor to whom the Frank-Tenement belonged, en­tring into the land, the Frank-Tenement drowned the lesser Estate; and the Lease for years is extinct in the Frank-Tenement. And it was said, That therefore the first Lease extinguisht. But if before that the Lord had aliened the Mannor saving to him the liberty, and after had entred for the Forfeiture, the second Lessée could not enter; for it is not any determination of the first Lease. Crook said, That if the Lessor infeoffed the first Lessée of the Mannor, that is a determination of the first Lease, and the second Lessée may enter.

The Bishop of Winchester against Markham.

THomas Bishop of Winchester, brought an Action upon the Statute of West. 1 cap. 4. de scandalis magnatum, against Markham, for that he preferred a slanderous Bill against him before the President of the Councel, surmising that he was a covetous and malicious Bishop. And the Opinion of the Court was, That the words were sufficient to main­tain the Action.

A man seised of a Mannor held in Chivalry, devises two parts of it to two men in severalty, and all the Remnant he devises to his heirs in Tayle, the remainder over in Fée. Hutton said, It seems to me that the devise is voyd for the third part to the heir; for he might devise the [Page 56] two parts by his Testament, and he had done all that he could doe by the Statute; and then the devise of the third part is out of the warranty of the Statute; for it is not reason that by the limitation of the third part (the which he could not doe) that the devise of the residue which was one time good, shall be defeated; which Harvey granted, but Crook to the contrary; for although the two parts were devised by the premisses of the Testament, and the third part in the end of it, yet in operation of Law the one part is not before the other, but the will is intire, and took effect in all its parts at one and the same time, by the death of the Devi­sor. By which it seemed (for the benefit of him in the remainder) that he shall take the third part devised to him; for if a man seised of three Acres of land held in Chivalry, and devises them severally to three seve­rall persons in Fee, the heir shall have the third part of every of the three Acres, and not the Acre last devised, which Hutton granted. So also for the benefit of a third person, he ought to be judged in the third part as a Purchaser, and not of an Estate by descent, and so is the better Opinion in 3 H. 6. But if he had devised the Tenements to his Son in Taile without limitation over of the remainder, there he might choose to be in of the Estate limited by the Devise, or as heir. Hutton. I doubt of that, for the Book is not agreed, 3 H. 6.

Wilkinsons Case.

THe Baron seised of lands, makes a Feoffment upon condition to en­feoff him and his wife for life, the remainder over to a stranger in Fee. Atthow demanded if the Feoffee shall be bound to make the Fe­offment before request made by the Baron. Hutton and Crook thought that a request ought to be made by the husband. And because the particu­lar Estate which is the foundation of the remainder limited to the stran­ger, ought to be made to the husband, who is party to the condition; and it is his will to take the Estate for life, or refuse it, and the Feme is at his will. But if the Baron dyes, then it behooves him to make the Fe­offment to the wife, without request, because she is a stranger to the con­dition, by Act in Law. And so where she dyes also before the Feoffment, the Estate ought to be made to him, to whom the remainder is limited, without any request. Yelverton. But if the condition was to re-enfeoffe the Feoffor and a stranger, there it behoves the Feoffee to tender the Feoffment to the stranger, for he had not notice of the condition, and he ought to be party to all the Estate. And by the Livery made to him, the Feoffor shall take well enough.

Waterton against Loadman.

VVaterton makes a Feoffee to the use of Loadman, in Fee to the use of another in Tayle, the remainder to his right heirs in Fee. Cestui que use in Tayle dyes, the first Feoffees enter, for to re­continue the use. Crook said, That when Tenant in Tayle in use makes a Feoffment, nothing passes but for his own life. For it had been agreed, where cestui que use pur vie, makes a Feoffment in Fee, (for it was not a Forfeiture of his Estate) because nothing passed but for his life) then when the Feoffee dyes during the life of cestui que use in Tayle, that can­not be any descent of the Fee, but as an Estate for life, the which deter­mines by the death of cestui que use in Tayle. And all the Iustices were of the same Opinion; for the descent was, when he had not any Title of entry; for by the Feoffment he had a Title during the life of cestui que use in Tayle. Wherefore during his life they could not enter, nor make continuall claim. But if the descent had been after the death of cestui que [Page 57] use in Tayl, then otherwise it shall be; for they had a Title to enter be­fore the descent, and by their laches they are told of that. Hutton seemed, That the Feoffees cannot enter in that case; for they cannot have the same Estate that they had before the alienation of cestui que use in Tayl; for by the Feoffment the Estate of the Fee simple which was to their right heirs, passes clearly; and it is lawfully in the Feoffee. Wherefore if they enter to re-continue the use in Tayl where they shall he seised of another Estate, where they shall be seised of a Fee simple also; and so there shall be two Estate of Fee simple of the same land, which is incon­venient. But the Iustices said, That cestui que use in Tayl, had no other remedy, unless by the Entry of the Feoffees.

Harris against Marre.

A Man seised of certain lands in Fee, makes a Feoffment in Fee to his use, and afterwards makes his will, by which he devises, That the Feoffees shall make an Estate of the same lands to all his Sons, ex­cept H. And if all his Sons dye without issue, that then the remainder shall be to an Estranger. Hutton said, That because H. was not ex­cepted in the last clause, that he had an Estate Tayl.

The Maior and Commonalty of Winche­sters Case.

THe Bishop of Winchester grants to the Maior and Commonalty of the same City, That they might Edifie in the vacant places of the same City, and inhabit there. And that Grant was confirmed by the Dean and Chapter; and the Opinion of Hutton was, That notwith­standing that Grant, the soil is to the Bishop, and by consequence the Houses. Quia quioquid plantatur solo cedit solo. And that grant does not enure, but as a Covenant or Licence, and not otherwise.

One Tomkins Case.

IT was said by the way, That if a man be in Execution for the Debt of another man, in the Fleet, the King cannot take him into his Prote­ction, into his Wars, out of Prison, untill the Debt be paid, because that he is in Execution for the said Debt; and the letting him out of Pri­son, is to let him out of the Execution, which the Law will not suffer. But if he was in Execution in the Fleet, or other Prison, for the Debt of the King, there he may discharge him, and take him into his Protection, or into his wars; for he may well discharge his own Debt.

Skore and Randalls Case.

THe Case was thus. A Lease was made to Robert Chichester, for 99 years, to him, his Executors, Assigns, or Administrators, if Robert Chichester, or John Bellew, or James Bellew, or any of them shall so long live, yielding and paying therefore yearly and every year unto the said Randall, his Heirs and Assigns, the sum of 40. s. at the four most usuall Feasts, and also yielding at or upon the death of Chichester, Bellew or Bel­lew, his or their best Beast in the name of an Herriot, or 40. s. &c. Provi­ded that if Bellew or Bellew dye in the life of Chichester, no Herriot to be paid after their deaths. A Distress is taken upon Skore the Assign of Chi­chester, for his own Beast. Ashly. The Question is whether his or their refer to Chichester, Bellew, or Bellew only, or may refer to Executors and Assigns of Chichester the Lessée. And so whether the Beasts of the As­signée [Page 58] may be taken for an Herriot. And it séemed to him not; for that, that a Reservation ought to be taken strictly, 27 H. 8. Comment. 171. 21 H. 8. Dyer 45. So that if the words are words of Reservation, or of Declaration which he will favour, they shall not be extended further than the words, &c. Bing. contrary, And he conceived that the Lessee or his Executors before Assignment, ought to pay the Herriot, and afterwards the Assignee; for he who took the benefit, ought to sustein the burthen. Sic transit res cum onere; and none took the benefit but the Assignee, or his Executors. And that is so strange an intendment, that in the Habend. it is not named who shall yield or pay, but it is intended he who had the land; and that Herriot comes in in the render of the Rent, and render does suppose a Prender. And it is coupled with the reservation of Rent, and it may be granted that the Tenant shall pay the Rent. And then it immediately followes, And also his or their best, &c. which then ought to be the Beast of him in possession.

Secondly, The other Exposition should be impossible to be performed; for none shall be charged but those that are either privy in contract or E­state; and the Executors of Chichester are not privy to any, and Bellewes are the persons only named by the limitation of the Estate, and not any wayes privy. It may be said, that the Tenant shall pay the Beast of Chi­chester, and so his Beast. But no man may give the Beast of another. And if it be said, That he may buy him, then the Property should be alte­red, and it would be his own Beast. Yielding his or their Beast, It can­not be intended, that Bellew or Bellew, might yield; but the Lease is gran­ted to him, his Executors or Assigns, then his or their Lessee, or their Ex­ecutors or Assigns. And you cannot have a forraign intendment of Bel­lew or Bellew. Then the Exposition is good, that the Herriot ought to goe with the Estate. Hutton. That Reservation is not of a thing that agrees with the Rent, but it is of a collaterall matter, and it is of a thing against common right; and for that it ought to be taken strictly, and to be the Beast of him that dyed; for if it had been, Yielding the best Beast of a stranger, it had been good; but th [...]e is Election of the Herriot, or of 40. s. Then by Assignment one part is become impossible; for the Assignee cannot pay the Beast of Chichester, but the Fourty shillings he may pay. And because the Distress may be taken for the 40. s. therefore the Avow­ry is naught Richardson. If Chichester dye Tenant, then his Beast shall be paid. And his Executors, if the interest come to them, shall cause that it be paid; for Chichester made the Contract, and that goes to his Executors, but not to the Assigns. And for the 40. s. that is demandable against the Executors of Chichester. Yelverton. The case is doubtfull, but I incline, that the Avowry is not good; for the words in the Reser­vation of the Heriot are speciall. If it had been said, And also yielding after his and their death, his or their best Beast. There it would be the Beast of the Lessee, his Executors or Assigns. But also he had sever'd it from the Rent, and had taken out of the course of the Estate; for other­wise it concurred and went with the Rent; But also he had made it colla­terall; for it is to be paid after the death of the stranger. For his or their cannot be carried but to the persons named by the limitation. And the Proviso explains that, that it should not be payed after the death of the Assignee. But if it had been rendring the best Beast after the death of the stranger, It should be payed by him that had the Inheritance. But he held for the 40. s. that the Executors shall not pay it.

Perryman against Bowden.

PErryman brought a Replevin against Bowden and Brown, who made a Recognisance in the name of Bedle. And the Case was thus. A rent is granted payable at Michaelmas and the Annunciation; And if it be in arrear by 40 daies after any day of payment, upon the demand at such a place, he might distrain. And it is not shewed that he demanded it; And for that a demurrer. Atthowe, it is not requisite to shew a demand, for the distress it self is a demand. And it was adjudged in this Court; If a Rent be granted, and that he may without demand distreyn; and good without demand. And the words (if it be demanded) are material; Be­cause it is demandable in a Collateral place, out of the Land charged. Crook, Grant of a rent, and that I pay it at Michaelmas allwaies, if it be demanded at my House; there ought to be a demand. And suppose it was to be demanded in such a place, upon the Land; I conceive the de­mand ought to be made accordingly. Yelverton, A Lease was made rendring a rent payable at such a day: upon Condition that if the rent be not paid at such a day without demand, That the Lessor may reenter. And adjudged that no demand is now requisite. For modus et conventio vincunt legem, &c. Sed adjurnatur.

Wolfes Case before.

THe Plaintiff was an Attorney who sued by attachment of Privilege; And now the Court would not permit the amendment; Because there was a material Error, for it is to the disadvantage of the King. For if the party be non-sute, or a verdict passes against him, the King shall have a Fine for false clamour, and may recover them against the pledges. But now where it is the Act of the Court or of the Clark or Attorny, and not the party himself, there may be amendment. As warrant of Attorney may be entred after the Record removed. And although that pledges were entred upon the Issue roll, where it ought to have been upon the Impar­lance roll. But not on the contrary. For the Issue roll is the inferiour. Har­vey, If a Sute be by Bill, as an Attorney being Defendant, there are alwaies pledges entred in the Bill. But if by Attachment also as so, Then the Declaration is the Original. Crook 12 Eliz. Dyer. There Iudgement was reversed for want of Pledges. And although that Case was before the Statute of 8 Eliz. yet that Statute does not ayd substantial Errors. And in one Husseys Case in the Kings Bench, That was adjudged for Error.

Wilknsons Case.

CRew moved, that two were bound in a Statute, and one dies, his Heir within age. That the extent shall demur; Because that usura recurrit contra haeredem infra aetatem existentem And he cited 17 Ass. 24. by Mawbrey. And so it was agréed by the Court. And Richard­son said, That in that respect, the Statute is an ill assurance. Quod nota.

Waddingtons Case.

AYl [...]ff moved for a Prohibition for one Waddington, for that, that he was executor, and was sued in the Councell of York, upon an Obli­ligation for the payment of a Legacy. And he alleges that a Lease which was put in the Inventory, was aliened to him by the Testator in [Page 60] his life time. And so the Question will be whether that should be As­sets, which ought to be tryed at the Common law. And therefore pray­ed a Prohibition. Richardson said, The Councel of York have power of all Obligations; And therefore having Iurisdiction of the principal, they have Iurisdiction of the accessary. Davenport, It is seen that they may proceed upon an Obligation of all sums; If they procéed Suo genere, as in the Court of Equity. But if a thing tryable at Common law, as As­sets or not Assets come; they cannot proceed, &c. Richardson, If a Sute be there for a Legacy, and payment be pleaded; they may try that. But if they meddle in matter of Title, then a Prohibition shall be granted. Hutton, There hath been many motions upon these Ecclesiastical Obli­gations for Prohibitions; and allwaies they were denied. And so it was in this Case.

Comins Case.

IN one Comins Case, it was agreed by the Court, That a Subiect may have a Forest, But cannot have a Iustice Seat. But he may have a Swanmark Court, and the other Courts, and a Commission to execute them. Then a Forest in the hands of a Subject shall pay Tithes. And it was agreed that in the hands of the King it is privileged. And by Henden, Davenport, and Atthowe Sergeants, It is only his personall privilege, which extends to the Lessee of the King; But not to the Fe­offee. And it was agréed, That where the right of tithes comes in Question between a Parson and the Vicar, who are both Ecclesiastical persons. It shall be tryed by the Ecclesiastical Court. But Richardson said the Books make a doubt; Where it is between the Servant of the Vicar, and the Parson. But it seemed to him to be all one.

Margery Rivets Case before.

RIchardson, Hutton, and Harvey said, That the Devastavit ought to be to Margery for Necessity sake, For it cannot be intended other­wise. For none can satisfie the Debt but Margery. And the intention of the Replication was to charge her de bonis prop. for waste: and no o­ther can be intended to waste. And the Case put of I. S. so being sei­sed, feoffavit; There it is good without praedict. I. S. But for the thing it ought to be Feoffavit inde, 21 H. 7. There if W. S. be named again. It shall be intended the same W. S. if there be not quidam I. S. and then otherwise: and also it is much mended by the Replication. For there it is ipsa Margareta non devastavit. But Crook and Yelverton on the contrary, according to their reasons before; that no Issue is joyned▪ And then the Statute does not ayd it; For there is not any Nomi­native Case to which it may referre. If it had been quo die Margery habens bona devastavit, had been good. But being bona habuit, no Grammarian can make Construction of it. And the Replication or De­claration ought to be certain to all intents, 27 H. 6. 3. Wrotesleys Case, In an information of Tithes, It was said, That the Defendant cog­noscens him to be in sute: being ruled, that Congnoscens is not positive­ly an affirmation, but it ought to be cognovit; And Iudgement was had upon it; and yet after for that fault reversed. 1 R. 3. There the Case was; After verdict was entred that the Iury appeared, et electi & triati dicunt super sacramentum suum. There it was reversed, because it was not lurati, and yet that was implyed by sacramentum strongly. But Implications ought not to be allowed in Replicatious; then we [Page 61] should introduce so many incertainties. But by Crook Iudgement shall be given against the Plaintiff upon his own Replication. For that, that the waste is supposed after the Son came at full age; and then the Administration that determines. And Iudgement was given for the Defendant.

Roberts and others.

ROberts and others in East Greenwich, were cited in the Spiritual Court to pay mony that the Wardens had expended in reparation of the Church. And the Inhabitants alleged, That the tax was made by the Church-wardens themselves, without calling the Free-holders, and also that the monys were expended in the re-edifying of Seats which be­longed to their several Houses: And they never assented that they should be pulled down. And now that allegation was not allowed, but sen­tence was given against them. And then they appealed to the Arches, where this allegation was also rejected; And for that he prayed a Pro­hibition; And the Court agreed, That the tax cannot be made by the Church-wardens; But by the greater number of the Inhabitants it may, and a Prohibition was granted. But by Yelverton, If it be cited by ex Officio, a Prohibition will not lye. For so it was ex insinuatione, &c. For the Wardens came and prayed a Citation, &c. But by Ri­chardson, Harvey, and Crook privately, a Prohibition will lye in both Cases.

Commin against Carre.

COmmin brought Trespass against Carre for taking of two Heifers. The Defendant pleads, that the King was seised of a Wapentake in Yorkshire; And had so large Iurisdiction as another Turn of the She­riff. And then he said, that the Plaintiff plaid at Cards within that Wapentake, in the House of such an one; and said that that is contra formam Statuti, 33 H. 8. ca. 9. And said then, that he plaid at Cards another day. And thirdly, that he broke a Pin-fold, &c. And that the 24 Martii, 21 Iac. warning was given to the Plaintiff, he being an Inhabitant, for a year before, within the Iurisdiction of that Court, that he ought to ap­pear the last day of March following; And said that the Court was then held, and those offences were presented, and that for his not appearing he was a­merced 12 d. and for the playing 6 s. 8 d. and for the breaking the pound 3 s. 4 d. And now for all those amerciaments he distrained, by vertue of a Warrant of the Steward of the Court (and does not say what warrant) And then justifies the selling of the said Heife [...]s for 20 s. and that he retained 17 s. and offered the surplusage to the Plaintiff. Atthow, there is not any thing to prove any sorfeiture by the Plaintiff. For the Statute is upon two branches.

First, That no Common house of play be kept.

Secondly, If any use those Houses, and play, &c. That it is not said that that is a Common house of play. But then it will be said, that it is alleged contra formam Statuti; and that will imply that. But now that is not sufficient; For if any inform contra formam Statuti, If by his own shewing it does not appear contra formam Statuti, He shall not have Iudgement. Richardson, A Common house of play, is a House for lucre, maintained for play; And there the Law makes a difference between Common persons and private, &c. But contra formam Statuti will not serve. For the offence ought to be alleged fully. Yelverton made four causes of Distress, selling the Distress; If it be good for any it is sufficient. And if there be a Iustification for three causes in Avow­ry; If it be good by any, It is sufficient. 9 H 6. But so it is where a [Page 62] trespass, &c. Harvey, A Iustification in a Leet; That he distreyn'd and sold, and delivered the overplus to the party, in the Case of the King it is good, But in the Case of Common persons I doubt whether he may sell; And in the Case of the King he ought to deteyn the distress for 16 daies before sale. But by Yelverton and Hutton, All Leets are the Courts of the King; and they may be used as the Courts of the King. And it was said afterwards by Richardson, That the Statute was gros­ly mistaken. And that divers amerciaments were wanting. And so Iudg­ment for the Plaintiff.

Traver against the Lord Bridgewater et Ux.

TRavers brought an action upon the Case against the Lord Bridgewa­ters and his Wife, Administratrix of T. D. her Husband deceased. For that the said T. D. in consideration that the said Travers, tradidisset & deliberasset to the said T. D. divers Merchandizes, he promised to pay, &c. The Defendant pleads that the said T. D. non assumpsit. And 'twas found for the Plaintiff, and pleaded in Arrest of Iudgement, that it was no Consideration. And adjudged for the Defendant. For when he said tradidisset & deliberasset, That they might be his own Goods. Otherwise if he had said vendidisset de novo, E. 4. 19. Accord­ingly.

Palmers Case.

IT was held by the Court, If a man assume to pay mony due, in consi­deration to forbear to sue him paululum temporis. And if he forbear for a convenient time; It is a sufficient consideration, upon which to ground an Assumpsit The case was between Palmer and Rouse P. 40 El. rot. 537. The Plaintiff counts that I. S. was indebted to him upon an Obligati­on, and he forfeited it and dies, and made the Defendant his Executor. And that the Plaintiff was forced to sue the Obligation, and in consideration of the premises. The Defendant assumed that if the Plaintiff would for­bear him pro brevi tempore that he would pay him. And the Paintiff fidem adhibens, &c. forbore 4 years to sue him; and said that the Defen­dant had Assets. The Defendant said absque hoc that he had Assets. And upon that the Plaintiff demurred; and adjudged for him. For the alleging of Assets in the Count is surplusage. And now the consi­deration was sufficient, for he had counted he had forbore for four years.

Panton against Hassel.

PAnton brought an action upon the Case of trover and conversion a­gainst Hassell, who declared, That whereas he was possessed of cer­tain Iewels 16 April he lost them, and 20 Ian. they came to the hands of the Defendant, and he converted them. And this was supposed to be done in Huntingtonshire; The Defendant pleads, that time out of mind, &c. the City of Bristow is and hath been a Market overt, in Shops et lo­cis apertis, and the Defendant bought them in his Shop. And further shews that he is a Gold-Smith, by reason of which he was possessed of them as his proper Goods, and converted them to his own use, which is the same conversion. Hutton, When the Defendant had supposed an absolute property by the sale in the Market overt, that Conversion after, cannot be a Conversion of the Goods of the Plaintiff For of necessity there ought to be a mean time between the change of the property, and [Page 63] the conversion. Also the Custome is naught; for he ought to say in lo­cis apertis & shops apertis; For the cause of the change of the property is, Because every one may come thereto and see if they are his Goods, and there challenge them. So that by some intendment in this pre­scription, that Shop might he a private Shop. And although that it be averred in facto that that Shop is apert; Yet when the prescription is mislayed, the Bar is naught. For if Issue be taken que fuit shop apert: That is not a good issue.

Also he prescribed, that there was a Market overt every day, except Sunday and Festivals; and that it was not Sunday or Festival, where it should have been nec Festival per que, &c. Harvey said, That word apertis shall have relation as well to shops as to locis; Hutton at New­gate Sessions seven of the Iustices being present, there was a Question, That if a man having Cloath stollen from him, and that was sold in a Scri­veners Shop, Resolved that there was no change of the property. For by intendment if a man had Drapery stollen from him) he would not seck it there. So if a man fells stollen Plate, and sells it in the High street under his Cloak, It does not change property. And if a man sells a thing in a Silkmans Shop in London (the Curtain being drawn) That does not change the property. And now to the principal Case, Although he said that he was a Goldsmith and that that was his Shop, It is not necessary to be intended, that he used the Trade of a Goldsmith in it; And that ought to be averred. For every Shop is a Market overt: for these Causes only, which appertain to the same trade.

Williams against Bickerton.

VVIlliams brought an action upon the Case against Bickerton for saying, He hath forsworn himself, and ile teach him the price of an Oath, for I will have his Ears cropt. And it séemed that it lay. For although it was not said at the beginning, where it was that he for­swore himself, Yet by the circumstance it shews that he was in such a place, for which it was punishable. And M. 29, 30 Eliz. Dantsleys Case. Thou art a Pillary Knave, remember that thou hast deserved the Pillary; and the Action maintainable. And the Plaintiff paid the Box for his Iudgement.

Bradyes against Johnson.

BRadye brought an Eject. firm. against Johnson, and declared upon a Lease of Land habend. a die dat. Indentur. praedict. And does not speak of any Indenture before. And for that the Declaration adjudged naught. And so it was betwéen Bell and March. And this same term between Spark, Where it was shewed quod concessit per eandem Indent. Where he had not spoke of any Indenture before.

Lowen against Cocks.

IN Debt by Lowen against Cocks, the Case was thus, A man seised of an house in St. Edmonds Parish in Lumbard-street in London, devises it to his wife for life, the remainder to his Son George, and if he dye with­out Issue, then to Iohn and Thomas his Sons equally, and to their Heirs. The wife dyes, George dyes without Issue, l. and T. make a Lease for years, rendring 5. l. to the one, and 5. l. to the other, l. devises the rever­sion to his wife, and dyes, and for that Rent the Action was brought by [Page 64] the Wife. And the Question was, if they shall be Ioynt or Tenants in Common. (For if joynt the devise of the Reversion is void.) And Secondly, If by any Act which makes partition (viz.) the several Limi­tations of the rent to them. If séemed to Hutton that they are Tenents in Common; By reason of that word equally, which in it self makes a Division. In 33 Eliz. in Boucher against Marsh. It was held, that where a man devises Lands to three Children equally to be divided; they are Tenents in Common. And so it was 14 lac. in case of Goods. And it is clear (as it is said) If a Man devise 100 l. to two equally, the Exe­cutors shall pay 50 l. to the one, and 50 l. to the other. For if that word equally does not make tenancy in Common, it shall be all otherwise void. And every word of a Will ought to be of some force. And in these Cases the word divided was not the force of the matter, but only equal­ly, And it was the Case of a Shepheard in the Courts of Wards. Where a man devises, that after the death of his Son all my woods shall remain equally to his Daughters and their Heirs of their bodies. And it was there held by Dyer and Manwood that they were Tenents in Common. If Parceners agrée to hold by, That is sufficient partition. And if the one Ioyntenant confirms to the other; that does not give any thing, but severs the Ioynture. Harvey to the contrary.

First, They are Ioint, For Ioynture is the greatest equality, for e­very one is seised by himself, and the one hath as much of the profits as the other. And so equal interest and equal benefit to the Survivor. 6 E. 6. in Dyer. A difference was taken between a Demise to two, when it is said equally divided. That they shall be Tenents in Common; If equally to be divided they shall be joynt. But it was never adjudged. 17 Eliz. A man having 3 Sons, devises Lands to them equally to be divided. The Question was what estate they had. For if the younger had not a fee, they could not have an Estate equal with the eldest, for he had a fee. Resolved, that they shall have a fee-simple: and also that they shall be Tenents in Common. And held that to be divided and divided was all one. And it was held also that the word divided makes the Tenancy in Common, and not equally. 2. As to that reserve of 50 l. to the one, and 50 l. to the other, clearly being a joynt Lease, and a joynt reversion. And the Rent as accessary to the reversion, and shall not change the na­ture of it. Yelverton, They are Tenents in Common. A Will shall be construed according to the intent of the Testator. And exposition shall be made of the words to supply his intent.

Tomlins's Case.

IT was agreed by all, That if one sojourn in the House of another; and the House is broken in the night, and the Stranger robbed in the House, without being put in fear of his life, In law. He that robbed shall have his Clergy, notwithstanding the Burglary. For it is out of the Statute of 5 & 6 of E. 6. cap. 9.

Dicksons Case.

AT Sergeants Inne in Chancery lane this Question was debated, If a man steal Goods, and the very Owner makes fresh sute to take the felon; So that he waives the Goods and flies; And before the Owner comes, the Goods are seised as Goods waived, and af­the Owner comes and challenges them. Now if he shall have them, or they shall be forfeited was the Question. And it was held by Harvey and Crook, That they are not at all forfeited; for that the Owner had [Page 65] done his endeavour and pursued from village. And that the Goods shall not be said to be waived, but where it cannot be known to whom the pro­perty is. Hutton Chief Iustice, and Yellerton said. That Goods wai­ved shall be said those which are stollen, and that the Felon being pursued, for danger of apprehension waives and flies. Now if they are seised before that the Owner comes, the property is presently altered out of the Owner in the Lord, although that he made fresh sute, If that Sute was not within the view of the Felon allwaies. But they all a­greed, if the Felon do as not flye, but is apprehended with the Goods, That then the Owner shall have his Goods without Question. Or if the Owner comes and challenges the Goods before seisure; and after the flight of the Felon. Harvey said, The Statute of 21 H. 8. cap. 13. does not remedy any thing, as to the restitution of the Goods stollen. But upon the evidence of the party, or by others by his procure­ment in the same manner. As it was in an appeal upon a fresh sute at the Common-law.

It was said by all, That although the custome was of Burgage lands in soccage; Yet if the Lands came by gift or otherwise to tenure in Chief, or service of Chivalry, That that now changes not the Custome, which alwaies goes with the Land, and not with the tenure: As the Lands in Gavelkind, by the Custome are soccage tenure; Yet if they are changed to service of Chivalry, the Custome is not altered, But that all the heirs shall inherit.

It was agreed by all, That if sir persons compass and imagine to levy war against the King; And there is an agreement betwéen them, that two shall do such an act in such a Country, and the other two another act in such a County. And so divers acts by divers in several Counties for to assemble the people against the King. And after two do the Act according to their purpose, and assemble the people, and the other do nothing. Yet the Act done by two upon the agreement, is Treason in all. But otherwise it is if there had been only a compassing, &c. and not any agreement, and afterwards one of them does the act unknowing to the others; there it is not Treason, but in those that doe the fact, and not in the others. As it happened in the Case betwéen the King and an other.

Wilkins against Thomas.

IT was adjudged upon good advise; That if an Infant he impleaded by any precipe of his Lands; And loses by defending. Now he shall have a Writ of Error. And because that he was within age at the time of the Iudgement, it shall be reversed. And the Infant shall be restored to all that he lost. As it happened in the Case of John Ware against Anderson and others in the County of York, lost while they were infra aetatem. Where it appeared that they appeared by their Guardian (admitted to them by the Court) to the Grand cape; and that they were within age. But there was an inspection by Nurses and Friends, and they were found not to be within age.

John Symons against Thomas Symons.

NOte it was said by all the Iustices; That if the Disseisee enter upon the Feoffee or Lessee of the Disseisor, That he shall not have an Action of the Trespass for the same Trespass against the Feoffee or Lessee; Because that they come in by a Title. And at Common law before the Statute of Gloc. No dammages for mean occupation against the Feoffee or Lessee.

Bromleys Case.

IF a man steal goods, and be arraigned upon an Indictment of felony, and the goods are valued to 6 s. and the Iury upon their verdict say, That he is guilty of the said goods, but that the value was but 6 d. That is a good verdict; And the Iustices shall vanish him as for patty Larcen­ny. In the same manner it is, If a man be arraigned for willfull mur­ther, and the Iury find it but Manslaughter. That is a good verdict by all the Iustices.

Pease against Thompson.

A Man seised of Lands in see makes a feoffment from that day, to divers, to the use of his Wife for her life, and after to the use of the heirs of the body of the Feoffor. The Feme dies, and the Feoffor makes a Lease for years and dies▪ Now her Issue shall not avoid that Lease, because a man cannot have Heirs in his life: So that at the time of the death of the Feme there was none to take by the remainder. And for that the Feoffor had the fee; the Lease is good and shall bind the Heir. As if a Lease be made for life, the Remainder to the right Heirs of I. S. and I. S. dies in the life of the Lessee: then the remainder is good, otherwise not, but it shall revert. But otherwise it shall be peradventure in such a Case in a demise.

Hillary 3 Car. Com. Banc. Skore against Randall.

SKore brought Debt against Randall, and recovered, and had execution by Elegit, and it was found by the Inquisition that the Defendant was seised of the moyety of a Messuage and Lands for life, and other Lands in right of his Wife. And the Sheriff returns that virtute brevis, et deliberat, feci meditatem omnium praemissorum cum pertinentiis, &c. Nec non duo pomaria, nec non unum clausum vocat, &c. And that he had delivered the moyety of the Lands in right of his Wife, and his Chat­tells, and recites them, and that Elegit was filed. And the Question was, whether he might have a new Elegit, Because that the Sheriff ought to have delivered to him the moyety of the moyetic of the Lands held in Ioint-tenancy. So that the Tenent by Elegit might be Tenant in Common for a fourth part with the Ioynt tenants, as it was agreed. But also by that Delivery he had but in effect the eighth part; For the other Ioynt-tenants, may occupy the Land delivered with him in Com­mon. Richardson said, For part of the Lands and goods, in right of his Wife, the return is good; And being filed he cannot have a new E­lection. For if part shall be evicted, you cannot have a new Extent up­on [Page 67] the Estate. But if it had been in the Genitive Case Duorum pomora­riorum, &c. it had been good. But it was granted by the Court, That the Plaintiff makes a surmise, that the Sheriff male se gessit in the Execu­tion of that Elegit, and then he may have a new Elegit at his peril, &c.

Edward Thomas against John Morgan, et al.

EDward Thomas brought an Ejectione firmae against Morgan, Kemmis, and others, and upon Not guilty pleaded, a speciall Verdict was given to this effect, for Morgan and Kemmis, (for the other some were dead be­fore issue, and the other not guilty) and they found a Iudgement dated 12 Sept. 23 Eliz. and deliver'd the 15 Iunii next ensuing. Which was be­tween the then Bishop of St. Davids of the one part, and Richard Thomas of the other part. And it was in consideration of a Marriage to be had be­tween him and the Daughter of the Bishop, That before the end of Hilla­ry Term next ensuing, he would levy a Fine of all those Lands, and all the other lands in Mountmouth, and that should be to Thomas Morgan, and Roger Sise of Lincoln-Inne. And that he suffered a recovery with double voucher to the uses in the Indenture, But the words are, that the Conu­sees should stand seised to the use. And by Atthowe, the Recovery is idle, for the uses shall be executed, and then there shall be no Tenant to the Precipe, (viz.) That of all the Lands mentioned in the Indenture Morgain and Sise shall stand seised to the only uses hereafter, &c. that is to say, They shall be seised of in part of the Lands and Tenements, that is so much thereof as shall amount to the clear value of 30 l. by the year, to the use of Richard, and Anne Daughter of the Bishop, after ma­riage, for their lives. Which Lands and Tenements to the value of 30 l. per annum shall be appointed and limitted out by meets and bounds, and put in writing before Hillary Term next, and delivered to the use of Edward Thomas, and Walter Thomas for their lives, which were Vncles of Richard, if Richard and Anne had Issue male. When the Survivor of them dyes without Issue male, or if all the Issue male dye without Issue male; Then the use to Edward and Thomas to cease. Also there be two Conditions, the one Precedent, the other Subsequent; And the precedent Condition makes that a contingent Remainder. But At­thow would have that settled without Issue born to Richard, &c. But if all their Issues dye before the Survivor; It can never be setled. For the words (scil.) at the death of the Survivor, &c, And then before the con­tingency happen, it cannot be setled. If the contingency had been void at the time of the limitations; I agree it should be void. Now if the parti­cular Estate be contingent; all that depends upon it is contingent also. And Edward and Walter took nothing but after the death of the Survi­vor of Richard and Anne without Issue. And then it is as in the Case of Cook 10. 85. A Feoffment to the use of A. for life, and after the death of B. to the use of C. and his Heirs. That Remainder is contingent, Be­cause that B. ought to dye in the life of A. or the Remainder shall never vest. So also to Richard and Anne for their lives, and after their deaths without Issue to Edward and Walter. And if they ever take an Estate, it ought to be after their deaths, &c.

Secondly, For the uses of the Residue. To the use of Richard for life, and if he dye living A. without Issue male ingendred of the body of A. Then to A. for life, that is contingent, then of the residue, after the death of Richard to the use of Edward & Walter, if Richard had not issue of Anne at the time of his death. Whether it vests after his death see before, &c. That [Page 68] is contingent also. And it is contingent whether he will dye without Is­sue male. As if a Feoffement be made to the use of one for life, and if he had no Heir of his body, to another in fee; that is contingent during the life; And he had not but an Estate for life, by that limitation; and then that is destroyed by the Fine also. And now if nothing was in Ed­ward, nothing can be setled in his Son. And then those contigent Re­mainders being destroyed: there is a good estate in the Purchasors; and this special verdict was not found for any doubt, but for the intricacy of the Indenture. And therefore he prayed Iudgement for the Defen­dant.

Harvey against Fitton.

HArvy the Administrator of Edward Fitton brought an Action of debt upon an Obligation of 200 l. against Edward Fitton, and declares of Letters of Administration committed to him by the Archbishop of Can­terby, &c. The Defendant says, That the Intestate became possessed of Goods in Chester within the County of York. And before the purchase of the Writ, and after the death of the Intestate, I. S. Chancelor of Che­ster committed Administration to Richard Fitton of all the goods, &c. And that he released to him, and upon that de murs. Bramston, He doth not shew what person that Chancellor was, or how he had that Authority to grant Administration, quod fuit concessum per Cur. That for that it was naught. And it was agreed, that the Prerogative of Canterbury does not extend to York.

Dame Buttons Case.

DAme Button was Administratrix of Goods and Chattels of her Hus­band. And the Sisters of the Husband would compell her in the Prerogative Court to make Distribution; And after sentence given prays a Prohibition, and divers causes were alleged. But Richardson rejected all, unlesse it was upon the Statute 21 H. 8. And upon that Statute he said, that upon conference with the Iudges, He conceived that it was in the discretion of the Court to grant a Prohibition in such Cases or not, &c. Hutton said, That a Prohibition in such cases ought to be gran­ted, For he said, if Sisters may come in for portions by Distributions, where Cousins cannot. And Sisters have not any colour to have Distri­bution. For although that the Statute of Magna Charta cap. 18. extend a pueris, Yet not All Freres or Sisters. And the Ordinary although here­tofore would compell an Executor to make Distribution; yet now they never meddle with an Executor. And hath not an Administrator the same power as an Executor? And in Isabel Towers Case a Prohibition was granted. For when they have executed their Authority one time law­fully, they cannot make a Distribution. Harvy to the same intent. The Ordinary had not such a power upon the Goods of any, especially where Administration is granted; For then they have put the Property in the Administrator to pay debts, &c. And there may be a sleeping debt which by that means shall never be satisfied. For if the Ordinary might grant Administration, and afterwards make Distribution, His Authority is not warranted, and he does and undoes, and so mocks the Statute. In Flames Case it was said, that if they are not permitted to make Di­stribution, They will compell it before Administration shall be granted. But they have not any such power; for he ought to commit Administration if it be demanded. And it was so in one Clarks case In which the whole Court was of opinion. But Yelverton would not shew his op'nion in the power of the Ordinary. But he consented to a Prohibition without other cause.

Iohn Owens Case. Mich. 3. Car. Com. Banc.

IOhn Owen lived apart from his wife; And upon petition of the Wife to the Iustices of Assise for maintenance, they refer'd it to the Bi­shop of Bangor; who ordered that he should pay to his Wife 10 l. per an­num, which was afterwards confirmed by decree in the Councel of Mar­ches of Wales. And because that Iohn Owen disobeyed that Decree, and did not pay the 10 l. per annum, the Councel sent a Messenger to appre­hend his body; and caused his Goods, and the profits of his Lands to be sequestred. And Henden prayed a Prohibition; for that that Alimony was not within their instructions. Richardson demanded of him if they could grant Prohibitions; If they meddle with a thing, which belongs to Ecclesiastical power, where they themselves have power. Harvey was of the same opinion. For this Court should preserve other Courts in order. Yelverton said, For the sequestration of the Lands, they could not do that. Richardson, They have not any power to sell the goods. The Ecclesiasticall Court is the proper Court for Alimony; And if the person will not obey, they cannot but excommunicate him. And by Yelverton, when that comes to them from the Bishop to be confirmed, They cannot but walk in the steps of the Bishop. And a day was gi­ven to shew, why a Prohibition should not be granted. And so it was ru­led.

Feakes against —

ONe — was sued in the Councel of Marches upon a Bond of 500 l. to pay 40 marks per annum; And he alleged, that he did not intend to take the forfeiture of the Bond, but to compell him to pay the 40 Marks per annum. And a Prohibition was granted to the Court at the motion of Hoskins. For that their instructions were not to hold Plea but for, &c. And if this should be permitted, it is but a window to draw more within their Iurisdiction, and also the King would lose his Fines. But he ought to have an Action of Debt. Harvy, If an Obliga­tion was to perform an Annuity of such a sum by another Deed. The party may bring his Action upon the Obligation or Annuity, And Yel­verton said, If it were to perform a Collateral thing, or if the Condition was all one with the Obligation, they cannot sue for the performance there. Quod nota.

Watson against Vanderlash.

VVAtson brought an Action upon the Case against Vanderlash, for scandalous words, and declares, that whereas he was skill­full in the art of Chirurgery, and that he made much gain of that Art of the Kings Subjects that now is, &c. Et colloquio tunc & ibidem habito de peritia sua in arte Chirurg. &c. et de quodam Matthews nuper ante sub cura ejus, who is now dead. He spake these words, Thou didst kill Mr. Matthews, thou didst kill him. And upon not guilty pleaded, it was found for the Plaintiff, and an hundred pound dammages given. And now this was urged in arrest of Iudgement by Crew. That he does not allege that he was a Chirurgean at the time of the words spoken. So that his allegation to be a Chirurgean, does not include the time &c. that he spoke those words; And then his profession is not discredited. Secondly, he does not allege, thac he died under his cure, but that he is dead; For [Page 70] if those had been alleged, it would have been more questionable. And for that the words are not Actionable. Now a man may kill a man di­vers wayes, and justifie it. As a Minister of Iustice, 14 Eliz. in the Kings Bench, Yates and Bostocks Case. Thou wast the cause that I. S. did hang himself, and that I. N. did cut his own throat. And adjudged that they are not Actionable; for he might have committed an Offence, and be­cause the other prosecuted him, he might cut his own throat, or hang him­self; and so this man might be under his cure, and he doe his best endea­vour to save him; but yet he might dye. And the Court does never extend words further than the Law directs them. Coo. 4. 15. Stawloeps Case and Hexts Case, fol. 20. Barhams Case. The Court there does not sup­ply that which the words doe not directly imply. And here in this Case where the words may have a qualification, they shall be taken in mitiori sensu. Henden. The word kill generally will bear an Action, because that it shall be intended to be felonionsly, as in the Lady Cockains Case. Although it was not Felony in facto. But here the words so spoken and particularly applyed, they will not bear an Action They had a discourse of his skill in Surgery, and of one Matthew, who was sick of a dangerous disease. Then that cannot to be intended, it was Felony; objecting the fayler of skill, will not bear an Action. As if I should say of a Lawyer, He hath lost his Clients Cause. And as it may be taken in mitiori sensu, it cannot be strained to Perjury. And so here there can never be intended a voluntary killing. But Bramston and Finch on the other side. That al­though there are not these words Tunc existenti Chirurgeon, yet there are other words which supply them; for it is, That when Matthews was under his cure, he was a Chirurgeon, &c. And the words are actionable without other reason; for that he impeaches his credit, and implies misbehaviour in his Art. Hutton. For the Exceptions we ought to intend that he con­tinued a Surgeon, and that his skill continued. And also it is supplyed. Then being speech of his skill, &c. Which proves that then he was a Sureon. And Then ought to be intended that he is a Chirurge­on; for it is not to be supposed that he laid aside his profession in the mean time. And for the words if he had said, For lack of skill of Chirur­gery, &c. thou didst kill him, will bear an Action; for that is a slander to his profession. And if one had said, Goe not to such a one, for he hath no skill in Chirurgery, if he be a Chirurgeon, if is actionable. Or if of a Lawyer, Goe not to such a one, &c. for he will deceive you. And the Question will be, whether it ought to be intended that he killed him for want of skill. If one sayes▪ Such a one was found dead, and you killed him, there it should be intended murderously. And for the Case put by Crew. I agree that a man may be a cause that another hangs himself by imagination. But if one sayes, You did kill such a one as hanged him­self, or cut his own throat, that will bear an Action. And so it ought to be intended also, that when he sayes of a Chirurgeon, &c. That it was for want of skill. Goe not to such an Inne, the Plague hath been lately there. These words are actionable, for it drives away Guests. Then these words were spoken to hinder him in his profession and benefit. And because that he dyed under his hands, it ought to be necessarily intended, that it was for want of skill. Harvey of the same Opinion. Also there is sufficient matter to prove that he was a Chirurgeon at the time of the speaking the words, &c. When he came to the words, it is saie that there was a speech between them, &c. and the speech was of his skill, and of Matthews death. If he had said, Thou hast killed I. S. or murthered I. S. whereas he is living, that will not bear an Action. And so also it was that he dyed of his disease it must be by consequence, that he did not kill him. But it is said that he dyed, that may be by killing. And for that, the word kill without doubt will bear an Action; for if it be not murther, it may be [Page 71] Man-slaughter And so it shall be intended if you cannot make a Iustification, as a Minister of Iustice, or se defendendo. And then when he sayes that he killed him, it shall be meant for want of skill, which is actionable. I. S. hath no more Law than a Horse. If he had resembled him to any thing but a Beast, it would not maintain an action. But if he said, Goe not to such a one. &c. it is actionable without question. Slander of one in his Trade, will bear an action. And so all being connexed alike, it ought to be intended that he killed him in respect of his skill. In Cases of De­famation Sir George Hasting's Case, Thou didst lye in wait to kill me with a Pistoll, were actionable. So if one touch another in respect of his skill in that that he professes, it will maintain an action, &c. And Yelver­ton to the same purpose; for there is a difference between a Profession, and a particular Calling. As if words are spoken of one that is a Iustice of Peace, he ought to shew that he was then a Iustice of Peace, for he is removable, and may be changed every Quarter Sessions. But as to a Calling, the Calling of every man is his Free hold, 43 E. 3. Grant of an Annuity to one pro consilio, and he professes Divinity, Physick, and Law, there the grant is pro consilio generally, for Physick if that be his usuall Profession. And it is intended that a man alwayes dyes in his Calling. If he said to I. S. Thou art a murtherer, it shall not be intended of Hares for the Iudges are not to search so far for construction. Loquen­dum ut vulgus intelligendum et sapiens. If one sayes of a Merchant, Put not your Son to him, for hee'l starve him to death. These words are acti­onable; for that that it comes within the compasse of the disgrace of his Profession. And so of a School-master, Put not your Son to him, for hee'l come away as very a dunce as he went. Harvey. If one sayes of a Iudge, He is a corrupt Iudge, it cannot be meant of his body to be cor­rupt, but it shall be intended of his Profession.

Peitoes Case, before.

HEnden for the Defendant, the Case is thus▪ A Rent is granted for life out of Lands which descend to the Heir, and he makes a Lease of parcell of the Land to the Grantee for years, who surrenders the term. Whether the Rent shall revive or suspend during the term. And it was said by him, it shall revive. First, For that that it is the act of him, who is lyable to the Rent, to accept the surrender. And there is a difference, where there is a determination barely by the act of the party, there it shall not be revived. For the first, 21 H. 7. 9. Tenant in Tayl of a Rent is infeoffed of Land, and he makes a Feoffment of Land with a warranty to B. with Voucher, as of land discharged of that Rent. And so it is 19 H. 6. 55. Ascue put this Case, Grantee of a rent in Fee and Donee in Tayl of Land, infeoffs the Grantee, who grants that over; and afterwards the issue in Tayl recovers in a Formedon, yet the rent shall not be revived. But if it had been the joynt act of the parties, as so by surrender, it should have been revived.

First, It is clear, that if a Chattell personall be suspended by Sute, it shall be gone for ever. As if a Feme marries the Obligor. 11 H. 7. 25. unless suspension be in anothers right; if it be by the act of the party, there it shall be revived: As if a Feme Executrix marry with the Obligor, and he dyes, the suspension is determined, and they are revived against the Ex­ecutors. 7 H. 6. 2. In one Gascoines Case. Lessee surrenders to the Les­sor, upon condition the rent be suspended; but if the Lessor enter, for con­ditions broken, the Rent is revived. Which in effect is our case. A rent is granted to the Daughter, and the land descends to her and her other Si­ster, who make partition. The Rent is revived: for it is the joynt act of both parties. Plow. 15. If a man had a Rent, and disseises the Tenant of the land, and after the Disseisee re-enters. Where there is a revivor [Page 72] of the land, there is a revivor of the Rent; for the disseisin was the cause of the suspension, and that now is gone.

Secondly, Because that when the Lessee for years surrenders, the term is determined to all purposes, and the Lessor is in of his Estate is Fee; and there is a diversity of surrender in respect of a stranger; for to a stranger it may have Essence after surrender. But as to himself it is otherwise extinct. And he cannot say that it had any Essence. 5 H. 5. 12. But in respect of a stranger it ha's continuance, as if an Executor surren­ders, yet it shall be assets. And all acts done upon Lessee for ltfe before surrender, shall have a continuance after. And so he prayed Iudgement for the Avowant. But more after.

Wakeman against Hawkins.

IT was said, That if an Executor was sued in this Court by Originall, he shall not put in Bayl. But if he be arrested in an inferiour Court, and removed by Habeas corpus, he ought to put in Bayl.

Stamford and Coopers Case.

STamford and Coopers Case was thus. I. S. acknowledges a Statute to Cooper the 22 January, and afterwards he confesses a Iudgement to Stamford the 23 of January next ensuing the Statute. And it is extend­ed. And Stamford brought a Scire fac, against Cooper (to wit now) because he ought not to have the land by Elegit. And the Question was, whether the Iudgement by relation shall defeat the Statute. And it was resol­ved, That the Iudgement shall have relation to the Essoin day, which is the 20 day of Ianuary, for that is the first day of the term legally; and the fourth day after is the first day of the Term open. Dyer 361. Pla. 10. A Release was pleaded after the last continuance, and it bore date the 21 of Ianuary, which was after the day of Essoin, de Octab. Hil. And for that nought, because that it came late; for it ought to have been after the last continuance, and before the last day, &c. 33 H 6. 45. Nisi prius was ta­ken after the day of the return, and before the fourth day after; and ad­judged nought, because that the day of the return, which is the Utas, is the first day of the term, and the fourth day after but a day of Grace, and that is the difference. If a man be obliged to pay money the first day of the Term, he shall not pay it but upon the fourth day after, for that is the first day in all common acceptance. But in all legall proceedings, the first day is the Essoin day. And so it was adjudged. 16 Eliz. And in the Kings Bench it was in one Williams Case. A Iudgement was given the 20 of Ianuary, and a Release of all Errours the 21 Ianuary, and adjudged that that bars the Iudgement given the 20 Ianuary; although it was not entred the fourth day after. A Iustice in the Kings Bench examined an Infant upon inspection the Essoin day, and found him to be under age and would not permit him to confess a Iudgement, although that he would have come to full age the fourth day after. The Court agreed that one may be non-suited the Essoyn day; and if he confess an Action that day, it shall be good. And thereupon Iudgement was given that by the relation, the Statute should be avoided, &c.

Crookes Case.

A Feme sole leases at the will of the Lessor, and after the Feme takes an husband. If by the taking of the Baron, the will of the Feme be determined, and it was thought not.

Fenne against Thomas. Hil. 3 Car. Com. Banc.

A Man inhabiting in the most remote part of England, was arrosted eight times by Latitat, and no Declaration is put in. Banco Reg. And the Coun­sell prayed Costs for the Defendant. The Prothonotary said that he shall not have Costs, unless he come in person. But Richardson said on the contrary, and he shall have Costs; for it appears that he had been put to travell, and a day given to shew cause why the Costs shall not be given.

Spark against Spark.

SPark brought an Ejectione firmae against Spark, for lands in Hawks­church in the County of Dorset. The Case was, a Copy was leased for a year except one day, and that was found in the Verdict to be war­ranted by the Custome. The sole Question is, if an Ejectione firmae lyes. And by Hutton, If Tenant at will makes a Lease for years, an Ejectione firma lyes; but if it be a Copy-hold for years, an Ejectione firmae will not be maintained.

Deakins's Case.

IT was said at the Bar, and not gain-sayed, If a man perjure himself against two, the one by himself cannot have an Action upon the Statute, but they ought to joyn; for he is not the only party grieved.

Bentons Case.

A Man Leases for life, and afterwards Leases for years to commence after the death of the Lessee for life, rendring Rent, the Reversion is granted. Tenant for life dyes, Lessee for years does not attourn. And it seemed, That the reversion passes without Attournment. And he shall have Debt, or shall Avow.

Williams against Thirkill.

AN [...]ion of Debt was brought by Williams against Thirkill, Executor of I. S. who pleads a Receipt against him of 300. l. over and above which non, &c. The Plaintiff replies that the receipt was by Covin. And so they are at issue, and it was found for the Plaintiff, and judgement was entred de bonis Testatoris. And it was said by the by in this Case, That Debt by Paroll may be forgiven or discharged by Paroll.

Ploughman a Constables Case.

PLoughman a Constable suffers one, who was arrested pro quadam fe­lonia antea fact. to Escape. And because it is not shewed what Felo­ny it was, and when it was done (for it may be it was done before the Generall Pardon) the party was discharged.

Hobsons Case.

VPon an Indictment of Forcible Entry Quod ingress. est unum Mes­suag. inde existens liberum Tenement. I. S. And because he does not say Adtunc existens; and without that it cannot refer to the present time (scilicet) of the Indictment, He was discharged.

Sir Thomas Holt against Sir Tho­mas Sandbach.

SIr Thomas Holt brought Trespass against Sir Thomas Sandbach qua­re vi & armis. Because, whereas the Plaintiff had used time out of mind, &c. to have a Water-course by the Land of the Defendant; So that the water run through the Land of the Defendant, to the Land of the Plaintiff. The Defendant (he said) had vi & armis made a certain Bank in his own Land, so that the water could not have his direct course as it was wont to have. Harvey, It séems to me that the Action does not lye. For a man cannot have an action of Trespass against me vi & armis for doing of a thing in my own Soyl. But Trespass vi & armis lyes against a Stranger, who comes upon the Land and takes away my Cattell; And such like things: but not in this Case. But he may have an Assise of Nusance. As in Case where one makes an House joyning to my House; So that it darkens my House, by the erection of a new House; I may have an Assise of Nusance against him who does it. But Crook was on the contrary. But it séemed to Richardson, that he shall have Trespass on his Case, but not vi & armis. And to that which hath been said, That if one build a House to the nusance of another upon his own Land, That he to whom the nusance is done, may have an Assise of Nusance, that is true; And also if he will he may pull and beat down such an House, so built to his Nusance; if he can do if upon his own Land. But he cannot come upon the Land of the other, where the Nu­sance is done to beat it down per que, &c. Hutton of the same opinion. By which it was awarded that the Writ shall abate. And he put to his Action upon the Case.

Hitcham moved a Case to the Iustices. One I. by Indenture cove­nants with an other that he should pay him annually during his life 20 l. at the Feast of St. Michael, or within 20 daies after, 10 l. and at the Feast of our Lady, or within 20 daies after, 10 l. The Grantée before the 20 daies passe, and after the Feast of our Lady dies. If the Exe­cutors of the Grantee shall have the Rent or not. And the Iustices, Hutton being absent said, That it was a good Case. And said that the Ex­ecutors shall not have it; Because it is not at all due, untill the 20th day be past.

Fawkners Case.

A Lease was made to one for 40 years, the Lessee makes his Testa­ment, and by that devises it the term to I. S. for term of his life, if he shall live untill the said term be expired; And if he dies before the years expire, then the remainder of the years to F. for term of his life, and if he die before the term be expired, the remainder of the years to the Churchwardens of S. I. If the remainder to the said Church shall be good or not was the Question. Because that the Wardens of the Church are not coporate so that they may take by that Grant. Hutton and Harvy said that the Remainder was not good to them. And said that the first Re­mainder was not good.

Peters against Field.

A Bill obligatory was shewed to the Court, in Debt brought upon it; And in the end of the Bill were these words, In witnesse whereof I have hereunto set my hand, and he had writ his name, and put to his Seal also. And because no mention was made in the Bill of no Seal to be put to the Bill, It was moved to the Iustices, If the Bill be good or not. And it was agreed by the whole Court that the Bill was good enough.

Tomlinsons Case.

A Parson makes a Lease for 21 years, The Patron and Ordinary confirm his Estate for 7 years; the Parson dies, The Question is, Whether that confirmation made the Lease good for 21 years, or but for 7 years. And it seemed to Hutton, that the Lease was confirmed but for 7 years. But Richardson was of the contrary opinion, and took a difference, where they confirm the Estate, and where they confirm the Land for 7 years; That Confirmation confirms all his Estate; But where they confirm the Land for 7 years; That Confirmation shall not enure but according to the Confirmation. And that difference was a­greed by Crook, and all the Sergeants at the Bar. And afterwards Hutton said, That that was a good Case to be considered, and to be mo­ved again.

Jacobs's Case.

A Man was indicted at Newgate, For that he feloniously vi & armis had robbed a man in a certain Kings foot-way leading to London from Highgate. And upon that he was arraigned & found guilty; And having his judgment, he prayed his Clergy for that he was a Clark And the Iustices of Gaol delivery doubted if he should have his Clergy or not, Be­cause the Statute, if any man be taken upon Felony committed on the High way, he shall not have his Clergy. But the Indictment was in this case, that the Felony was done in alta via reg. pedestri. So that the words are not alta via regia, nec in magna via regia, nec in via regia. For if that word pedestri had been put out of the Indictment, he should not have had his Clergy clearly. Some of the Iustices were of opinion, that that word added in the Indictment made that he should not have his Clergy. The Lord chief Baron of the contrary opinion.

Perkins against Butterfield.

HItcham moved to the Iustices, If one takes Beasts Dammage fea­sant, and impounds them in an House, and leaves the Door open, So that the Owner may sée them and give them sustenance; And after­wards for default of Sustenance they dye in the Pound. Whether he who distreyned them shall be charged or not. Hutton, when one takes Beasts Dammage feasant in his Land. It is at his Election, if he will impound them in an open place where the Pound is, or in some place in his own Land. And if he impound them in the common Pound, and the Beasts dye, the Owner has no remedy. But if they be impounded upon the Soyl where they did the Dammage: or in the Houses of him who distreyned them, and they dye for want of Food, In this he who took them shall be charged. For the Common Pound is common to all Per­sons, [Page 85] so that they may come to give them food. Otherwise in this case, For there the Owner cannot have notice where he hath made his Pound. Richardson of the same opinion. And I believe that the Owner shall have an action upon his Case against the Owner for the recovery of the value of his Cattell. For trespass does not lye; For the taking of them and the impounding was lawfull. And it is reason that he should recover the value of them by an Action. For if the Owner had come to have given them food, the Terre-tenant would have an action against him. Hitcham, The taking of them is made a Trespass ab initio, when the Beasts dyed in Pound.

Wimberly against Taylor et alios.

VVImberly had entred a Plaint in a Court Baron against two jointly, for taking of his Goods; And the Plaintiff had removed the Plaint by a Recordare joyntly, as the Plaint is. And now at this time the Plaintiff counts of taking of Goods severally. So that it varies from the Plaint and the Recordare also. And Ward moved that the Writ might abate. And so it was adjudged by Hutton and the Iustices.

Wilkinsons Case.

IT was moved at the Bar, If a Man makes a Lease for years to I. S. I. N. and I. D. If the aforesaid I. S. &c. should so long live; And now one of the Lessées is dead. If the whole Lease should be determined or not was the Question. And Hutton and Harvey said, That it was without doubt that the Lease was determined by the death of one of them. But if the words had been generally. If the Lessées should so long live, and had not named them, Then perchance it should have béen more doubtfull.

The Executors of Tomlins's Case.

ATthowe demanded this Question of the Iustices. A Lease is made for years, the Lessée grants over his Estate and reserves to him and his Heirs during the term a certain Rent. If the Executors or the Heir of the heir shall have that Rent. And it séems to me, that it shall enure to the heir well enough. As a Grant made by the Grantee of the estate of the same Rent. So the Heir shall take by the Grant Harvy, May the Heir take Chattel as Heir to his Father And this Rent is but a Chattel. And in the Book of Assise; there is a Case where Lands are given to I. S. et uni haeredi suo, et uni haeredi ipsius haeredis tantum. And that was taken to be no Fee-simple; Nor no such Estate that the Heir might claim as Heir to his Father. But I am in doubt of your Case truly. For which I will advise. Hitcham, Vpon that I have seen a Diversity. Where Lands are given to I. S. et haeredi suo, et haeredi haeredis I. S. In that Case he shall have a Fée-simple; Otherwise it is, where Lands are gi­ven to I. S. et haeredi suo; There no Fee-simple passes. Richardson, There no Fee-simple passes in any of the Cases. And it was said in the Argument, That Lessee shall not have Trespass vi et armis against his Lessor.

Whiddon's Case.

A Man devises by his Testament to his Daughrer Jane all his Land in D. habendum sibi et haered. de corpore suo legitime proc. And by the same Testament he devises to his Daughter Anne, all his Land in the tenure of I. S. in the County of Hertford. Whereas in truth D. was in the County of Hertford, and parcel of the Lands were in the tenure of I. S. Whether Jane shall have the Lands in D. in the tenure of I. S. by the first words; Or Anne shall have them by the last words. Harvey; The Testator had given them by his first words to Jane. Wherefore he cannot revoke his Gift, and give it afterwards to another Daughter. But all the Iustices were of the contrary opinion.

A Case of Executors.

IF Executors come to the Ordinary for to prove the Will; He ought to prove it ex communi jure. And that he may do without great exami­nation of the Witnesses. But if other Executors come afterwards to prove a later Will; Then the Ordinary ought to be circumspect in the probation of that Will, and to do it by proofs; For that is de mero Jure. And it is the better and of more effect, by At­thowe.

Challoner against Ware.

A Man makes a Lease for years, reserving a certain rent payable at the Feast of St. Michael. And for default of payment at the said day, and by the space of 40 daies after, That it shall be lawfull to the Lessor to reenter without any demand of the Rent. The Rent is in arrear by 40 daies after the Feast of Saint Michael, and no demand of the Rent made by the Lessor; Whereupon the Lessor entred. If that Entry were lawfull was the Question. And by Hutton it is not. For a demand of the Rent is given by the Common law between Lessor and Lessée: And notwithstanding the words (without any demand) it remains as it was before. And is not altered by them. But if the Rent had béen reserved payable at another place, than upon the Land; There the Lessor may enter without any demand. But where no place is limitted but upon the Land, otherwise it is. Richardson to the contrary. For when he had covenanted that he might enter without any demand; The Lessée had dispensed with the Common law by his own Covenant. As the Lessor might by his Covenant, when he makes a Lease Sans impeachment dl waste, He had dispenced with the Common law, which gives the Action of Waste. Harvey of the same opinion. If a Man leases Lands for years with a Clause, That if the Rent be in Arrear by forty daies after the day of payment; That the term shall cease; If the Rent be in ar­rear by the said forty daies after the day of payment, The Lessor may enter without request.

Conyers's Case.

ONe Thompson makes a Lease for forty years, to Conyers by Indenture, and in the same Indenture covenants, and grants to the Lessee, That he shall take convenient House-boot, Fire-boot, and Cart-boot in toto bosco suo vocato S. wood within the Pa­rish of S. And those Woods are not parcel of the Land leased, but o­ther Lands.

Atthow, I would fain know your opinion, if that Grant of Esto­vers out of an other place, than was the Lease, be good? Also what E­state the Grantée of House-boot, and Fire-boot shall have by that. For the words are from time to time, and hath limited no time in certain. And lastly, If the Lessée be excluded to have House-boot and Fire-boot in the Land leased; or if he shall have in both places. Also if the Exe­cutors by that Grant to the Lessee shall have House-boot and Fire boot. And it was agreed by Hutton and Harvey, That that Grant was good, and that the Grantee shall have it during the Term. And that that grant does not restrain him But that he shall have house-boot and fire-boot in the land leased also. Atthowe. If there be no great Timber upon the land leased, and the houses are in decay▪ if the Lessor ought to find and allow to the Lessée sufficient Timber for the making the reparations; or if the Lessée at his own costs ought to find the Timber for the reparations of the house. Hutton said, That the great Timber shall be at the costs of the Lessor, if no Timber be upon the land leased, nor no default be in the Lessee in suffering the great timber to go to decay or to pu­trifie. And it was agréed, if the Lessor cut a tree and carry it out of the Land, That the Lessee may have an Action of Trespass; And if Stranger cut a tree, the lessee shall have an action of Trespass and recover treble dammages; As the lessor should recover against him in an action of waste

Wakemans Case,

A Man seised of a Mannor parcell demesn, and parcell in service, devises by his Testament to his wife during her life all the demesn lands; & also by the same Testament he devises to her all the services of chief Rents for 15 years. And moreover by the same Testament he devises the same Mannor to another after the death of his wife. And it was agreed by all the Iustices, That the devise shall not take effect for no part of the Man­nor, as to the stranger, untill after the death of the wife. And that the heir after the 15 years passed, during the life of the wife, shall have the ser­vices and chief Rents.

Jenkins against Dawson.

IN a Formedon, the Demandant makes his Conveyance in the Writ, by the gift of I. S. who gave it to [...]. D. er haeredibus de corp. suo legi­time procreat. And shewes in the Writ that he was heir to the Son and heir of I. D. Son and heir of W. D. the Donee. And Hitcham demanded Iudgement of the Writ, for this Cause. And the Court said that the Writ was not good; for he ought not to make mention in the Writ, of every heir, as he does here. But he ought to make himself heir to him who dyed last seised of the Estate Tayl, as his Father or other Ancestor. Also that word procreat. ought not to be in the Writ, but Exeuntibus. But the Court thought that it might be amended. And Harvey said, If false Latin be in the Writ, it shall be amended; as if in a Formedon the Writ be Consanguineus, where it should have béen Consanguineo. Hutton and all the other Iustices said, that that might be amended by the Sta­tute.

Saulkells Case.

IN an Attaint the grand Iury appeared, and the petit Iury and the par­ties also, and one Rudstone Master of the Servant in the Attaint, came to the Bar, and there spoke in the matter, as if he had been of counsell with his Servant. Crawley said to him, Are you a party to this Sute­or [Page 79] for what cause do you speak at the Bar? And he answered, that he had done this for his Servant And if he had done any thing against the Law he knew not so much before. Hutton, You may, if you did owe any mony to your Servant for his wages, give to his Counsel so much as is behind of it, and that is not maintenance: Or you may go with your Servant to retein Counsel for him; So that your Servant pay for his Counsel. But that that you have done is apparent maintenance. And the Kings Sergeant prayed; That he may be awarded to the Fleet and pay a Fine. And Hutton upon advise sent him to the Fleet.

Wiggons against Darcy.

DArcy was in Execution upon a Statute Merchant, and his Body and Goods were taken. And the Conisee agreed that the Conisor should go at large, and he went at large. Atthowe moved, If that were a discharge of the Execution or not. And Richardson said it was. For his imprisonment is for his Execution. And if he release his im­prisonment he releases his Execution. And so if two men be in Execu­tion for one Debt, and the Plaintiff releases to one of them, That is a release to both. And so if one had two acres in Execution, and the Plaintiff release the Execution of one of them, It enures to both. Har­vey on the contrary opinion. Yet I will agree, That if a man be one time in Execution, The Plaintiff shall not another time have an Exe­cution. For after a cap. ad satisfac. an Elegit does not lye. But in the Case where the Conisee does release the imprisonment only, and not the Execution (for it is not but a liberty given by the Conisee to the Conisor to be at large) That does not release the Execution.

Dolbins Case.

IN a Replevin the parties were at Issue, and the Plaintiff sued a Venire f. c. returnable such a day, at which day the Sheriff does not return the Writ; Wherefore the Avowant by Ward prayed a Venire fac. with a proviso for him. And it was granted by the whole Court.

Fossams Case.

A Man after the Statute of 27 H. 8. makes a Feoffment in Fee to the use of himself for term of his life, and after his decease, to the use of I. S. and his Heirs. The Feoffor does waste; And I. S. brought his Action of Waste. And now if his Writ shall be general or special was the Demur in Iudgement. And Hutton, and the other Iustices were clearly of opinion, That the Plaintiff ought to have a special Writ. And so it was adjudged afterwards.

Doswell against Iames.

IN Debt brought upon an Obligation, Iames shews that the Obligati­on was endorsed with a Condition to perform all the Covenants com­prised in an Indenture, and he pleads that all the Covenants were ful­filled; And does not shew in certainty the Covenants, nor how they were performed. And Hitcham said, that the Plea was not good. For there is a Diversity, when one pleads in the Affirmative and when in the Negative. For if in the Affirmative he shews in the certainty how the Condition or Covenants were performed. And there is no diversi­ty [Page 80] in my opinion, between the Conditions which were upon the dorsed Obligation, and the Covenants in the Indenture. And it is to be thought, that he who knows more of the Truth, should shew it in his Plea. And therefore he who pleads the Affirmative, shews how the Conditions are performed. Because it lyes much in his knowledge; Whether he hath performed them or not. But where he pleads in the Negative other­wise it is. For there he is not to shew the certainty. And yet I will a­gree, that if one brings an Action of Debt upon an Obligation indorsed with a Condition, The Defendant may plead the Conditions perform­ed generally. But otherwise it is of Covenants in an Indenture. And in an Obligation with a Condition endorsed, if he pleads the Conditions performed, and he shews what thing he hath done; If it be in the Affir­mative, he ought to shew the certainty of it also. So that for that cause the Plea will not avayl. Also it is incertain and doubtfull to the Iury. For if in that Case, we are at Issue upon such a general Plea, Al­though it shall be tryed by the Iury, Yet it would be strange to enquire of such general things. Wherefore, &c.

Gerrard against Boden.

AN Annuity was brought by Gerrard against the Parson of B. And the Plaintiff counts, That the said Parson granted an Annuity of 40 l. pro bono consilio suo imposter. impenso, for term of life of the said Parson. And for 30 l. of arrerages this Action was brought. Finch, thought the Count not to be good. And first it is to be considered, If that Annuity might be assigned and granted over or not. And as I think it cannot. For an Annuity is not but as a sum of mony, to be paid to the Grantee by the Grantor. And not at all to the realty, if the Land be not charged by express words in the same Deed. And to prove it, If a man grant an Annuity to me and my Heirs, without naming of my Heirs; If the Annuity be denied, it is gone; Because my Person is only charged with the Annuity, and not the Land. So if a man grants to you the Stewardship of his Mannor of D. and to your Heirs, you cannot grant that over. And so of a Bayliwick. But peradventure it may be said, That an Annuity may be granted over in this Case. Because in the Habendum, It is said to the Assignees of the Grantee. But that is nothing to the purpose, as I think. For I take a difference when a thing comes in the Habendum of a Deed, which de­clares the Premises of the Deed; For there it shall be taken effectuall, but otherwise not. As if Lands be given to a man and his Heirs haben­dum sibi & haered de corpore suo procreat. That is a good tayl. But if a thing comes in the Habend. which is repugnant to the Premises of the Deed, and to the matter of the thing which is given by the Deed, Then the Habend. is void for that parcel. As in the Case at Bar, it is meer­ly contrary to the nature of the Annuity to be assigned over to another. And there is no remedy given for it but an Action, and it is Common learning, that a thing in Action cannot be assigned over unless it be by the grant of the King. Also by their Declaration, they have acknowledged it to be no more than a chose in action. Then a Rent seck for which he had not any other remedy but an Action after Seisin. For he said that he was seised in his Demesn as of Franktenement of the Rent aforesaid. Then it ought to be a Rent-seck. For of no other Rent can a man be seised in his Demesn; because they lye in prend. As of Advowsons common for years, and of Estovers. And I will not agree that difference put by Littleton in his Book to this purpose. For of such things which lye in manual occupation or receipt, A man shall not say that he was seised [Page 80] in his Demesn as of a Rent. Because it lyes in the prend. Pasc. 4 Car. Com. Hanc. And in the 21 E. 4. The Case is doubtfull. And Crawley of the same opinion. Hit­cham of the contrary. And at another day Hutton said that the parties were agreed. Hitcham, We desire to have your opinion notwithstand­ing for our learning. Hutton said, We are agreed, that the Annuity may be granted over, and it is not so much in the personalty as hath been argued by Finch. And in some Books it is said, that a Release of personal Actions is not a Plea in a Writ of Annuity.

Groves against Osborn.

THe Case was thus, A man makes a Lease for life, the Remainder for life upon Condition, that if the second Lessee for life dye in the life of the first Lessee; That the Remainder in fee shall be to another. And it was said, That that Remainder might commence upon that Con­dition well enough. It was said by Atthowe, That where a Remain­der depends upon a determination of another Estate, So that none shall take any Estate by the Remainder upon Condition, then the Re­mainder is good. As if a man give Lands to A. for life, upon Conditi­on, that if I. S. pay me 40 s. before such a day: That the Remainder shall be to him; That is a good Remainder. But when an Estate is to be defeated by a Remainder depending upon that, Then the Remainder is not good. As if I lease Lands for life, upon Condition, That if the Rent be in arrear that the Remainder shall be to a Stranger, that Re­mainder is not good. Hutton said, that in my opinion my Brother Atthow spoke well, and so it was affirmed.

Bateman against Ford.

AN action of the Case was brought against Ford, who had called the Plaintiff Thief, and that he had stollen from him a yard of Velvet, and a yard of Damask. The Defendant said, that he said that the Plain­tiff had taken and bribed from him as much mony, as he had for a yard of Velvet and Damask, and justifies Hitcham said, that the Iustifica­tion is not good. For the words that he justifies do, not amount to so much as to affirm a Felony in the Plaintiff, where the Plaintiff counts that the Defendant slandered him of a Felony. Hutton said. What difference is there, when you say that I have bribed your Horse, and when you say that I have robbed you of your Horse? Henden, one may take Goods, and yet it is not felony.

Norris against Isham,

IN an Eject. firm. by Norris against Isham, These things happened in Evidence to the Iury. First it was cited by Richardson and Hutton to be Hurtltons Case. That an Eject. firm. cannot be of a Mannor, Be­cause that there cannot be an Ejectment of the Services: But if they do express further a quantity of acres it is sufficient. It was said by Crook Iustice, and not denyed; That if a Lease is made of 5 acres to try a Title in an [...]eject. firm. And of the 3 acres he will make a lease. But in the other a he will not; If the livery be in the 3 acres the other 2 does [Page 81] not pass. Part of the Evidence was, That the Countess of Salisbury being seised of the Lands in Question, makes a Lease of them by words of Demise, Bargain, and Sale to Iudge Crook for a Month, to begin the 29 September, habendum a datu, and it was deliveted the 3 of September. And the same day he bargains and sells the Reversion. Davenport, Because that no Entry appears by the Lessees by vertue of the Demise, he submitted to the Court, If there was any such Reversion in the Gran­tor he bring in possession, And this difference was a greed; That if one de­mises Lands for years, and Grants the Reversion before Entry of the Lessée. The Grant is void. As it is in Saffins Case. Cook 5. 12. 46. But if a man bargain and sell for years, and grants the Reversion be­fore Entry of the Lessee, it is good. For the Statute transfers the Pos­session to the use. As if a man bargain and sells in fee or for life, and the Deed is inrolled. The Bargainee is in possession of the Frank-tene­ment. And so it is of a Lease for years which is a Chattell. And by Crook, In the Court of Wards that very point was resolved. Daven­port, Also there are words of Demise, and Bargain, and Sale, before which the Lessee had his Election to take by which he would. As Sir Rowland Heyards Case is. But by Hutton, and it was not denyed. He should be in by the Bargain and Sale before Election; For that is more for his advantage. Further the Evidence was, That George Earl of Salisbury made a Lease of those Lands which were a Mannor, And makes a Conveyance from himself for life with divers Remain­ders; and then to the use of the Daughter or Daughters of the said George. And the heirs males of thrir bodies the remainder to the heirs of the body of the said George, &c. and had 3 Daughters to whom the Re­mainder. The first dyed without Issue the, 2 d. dyed having Issue male, the 3 d. bargains & sells all her half part, and pur part to Edw. Earl of Salis­bury; Who now being seised of a third part of the Estate of Inheritance, and of the other two parts for his life, and the lives of the 3 Daughters, suffers a common recovery by the name of the moyety of the Mannor. And the doubt was, what passed. Richardson, By that there is not passed but the moyety of the third part. Hutton, Crook, and Yei­verton were on the contrary opinion, and said that by that, All the third part passed also. Yelverton, If a man be seised of the mannor of Dale, and buys half for life of another in fee, and makes a Feoffment of the half of the Mannor; The moyety which he had in Fee shall pass. And there shall be a forfeiture for no part. Which was agreed by the Court. If a man be seised of the third part, and grants the moyety, perhaps the moy­ety of the third part only passes. But he is seised of all. Richardson, There are several Estates, and moyety goes to that Estate which he had in the Mannor. For when I grant more than I can grant, that which pas­ses passes. Crook I had the third part of a Mannor, and grant the moyety of the Mannor; all my third part passes. But in the Bargain and Sale, the words were part et pur part. Which as it was passed all. And also the Covenant to the Lessor; The Recovery was of the half part & pur part. And by Hutton, Crook, Yelverton, All was intended to be re­covered, And then the word Moyety carries that tresbien. Richardson, That Indentures of Covenant much mends the Case. Another Questi­on upon the Evidence was, Whether when a Bargain and sale is made of Lands; And the Bargainee before inrollment makes a Lease for years, and afterwards it is enrolled. If the Lease now be good. Ri­chardson and Yelverton, It shall be, that although it be after acknow­ledgement, and before inrollment, yet it is naught. And by Yelverton and Crook it was so adjudged in Bellingham and Hortons Case; That if one sells in fee, and before inrollment, the Bargainee bargains and sells to another; And afterwards comes an Inrollment. That second Bar­gain [Page 83] and sale is void. And an other Question was. Pasc. 4. Car. Com. Banc. If one makes a Lease for years, by Indenture, of Lands which he had not; If the Iu­ry be estopped to find that no Lease. And by Richardson, If the finding that no Lease be subject to an attaint. But they should find the special matter. And then the Iudges would judge that a good Lease. And Ser­geant Barkley cited Rawlins's Case, Coo. 4. 43. to that purpose. Crook and Hutton against him. And Crook said, That it was adjudged in Lon­don in Samms case, That that is not an Estoppel to the Iury. Which was affirmed by Hutton. And that they may find the special matter; And then the Iudges ought to find that it is not a good Lease. And Hutton said, That there is a difference between a special Verdict and pleading in that case. For in speciall pleading and Verdict is confost by all parties▪ That he had not any thing in the Lease. And then the Iudges gave Iudgment accordingly.

The King against Clough.

IN the case of a Quare impedit by the King against Clough before, Ri­chardson shewed how the Quare impedit was brought by King Iames, and Demurrer joyned then, and after they demised to the King, whereof the Court was not before informed. Wherefore although that for the matter they then shew'd their opinions; Yet they were all resolved, That the Quare impedit ought to abate. And that Brownlowe chief Pro­thonotary had shewed them, a Resolution in King Iames's time in this Court, by all the Iudges to this purpose, and the difference of the Infor­mation. For after the Demise to the King, the information stood. As it is so it cannot be aided by the Kings Court. Nor is it within that Statute of 1 E. 6. 7. For that Statute is betwéen party and party. In debt for Recusancy where another brought an action in Right of the Crown.

Iacob against Iacob.

IN Debt, The Issue was, Whether the mony was paid or not. And the venue was laid of the Parish of Ipswich, and the return of the She­riff was of Woolbridge. And Hitcham said, That there is not any venue. And the Defendant upon the Statute (if there be any tryall) if any part of the venue be laid in the Tryal) is ayded. But if there be not any part laid, then he is not ayded. Richardson said, If an action of Debt be brought of Trespass done at Dale, where not guilty being pleaded, the visue is de vicenet. de Dale, and the return is de Dale, That is not good. Hi [...]cham Sergeant affirmed that it was. Richardson and Hutton also agreed. Nomina Iurata to be good; And then what Action so­ever the Sheriff doth is not material, and the Writ is right. Hit­cham, I confess for any man (collaterally) to inform that there is not any thing of Ipswich shall not be allowed. But so it appears to us upon the Record. Richardson, it may be intended. That Woolbridge is de vicenet. de Ipswich. And adjourned. But afterwards it appeared, That the Venire fac. was of Woolbridge. And then all agreed that it was naught. And a new Venire fac, ought to issue, &c.

Swintons Case.

SWinton assigns Debt upon an Obligation to another, who sues in his name, and declares upon an Ohligation of 70 l. And the Defen­dant pleads non est factum. And a special verdict was found, That the Defendant was bound to Swinton, per quoddam scriptum Obligatorium gerens dat. eisdem die & anno, As the Obligation upon which the De­claration was, cujus tenor sequitur in haec verba, &c. And the Obligation was in 70 l. and that that is the same Obligation which was given in evi­dence. But whether that is the same, as it should be, which they de­clare, Juratores penitus ignorant, &c. Davenport, for the Defendant prays Iudgment: & alleges that the Verdict is per quoddam. And therfore it can­not be intended to be the same obligation upon which he declar'd. For then it ought to be praedict. But Hutton and Yelverton thought the Verdict to be good. For they found the same date, &c. But your Question to us is, Whether that Variance makes pluralities of Bonds. But for the matter of Variance, Davenport thought that it is material. In the Kings Bench it was one Parryes Case in an Obligation of 500 l. There it was quimpe pro quinque. And adjudged to be naught. Ri­chardson, I confess the Case in H. 6. where it is Wiginti for Viginti, and yet good. For there is some colour of likeness. But if the word be no latine word; So that nothing can be known what was intended; it is otherwise. So one Randalls Case, One was bound by these words, in quatuor centum libris. Whereupon it was doubted, Whether it was to be intended 400 l. or 104 l. And it was adjudged naught. Vpon which it seemed to be naught here. And so seemed Hutton and Yelver­ton being only present.

Gammon against Malbarn.

IN an Assumpsit to pay 34 l. which accrew'd upon several promises, First he surmised that one was indebted to him in 12 l. And that he would trust him more; The Defendant came and prayed him to trust him, and if he would, he would pay him the old debt. And whatsoever he should be in arrear more, if it did not exceed 100 l. he would pay, and shews how he afterwards sold to him divers pieces of Flesh at reasonable prices; And that he lent him 3 l. which he promised to pay. And then he came and requested him to pay the whole 34 l. But he would not pay the 19 l. for the price of Flesh, nor the 12 l. &c. Henden moved in arrest of Iudg­ment ( non Assumpsit being pleaded and found for the Plaintiff) because that he does not allege before, That the Flesh that he sold amounted to the price of 19 l. And Secondly, because that he makes but one Re­quest for the several Debts, where it ought to have been several, &c. Hutton and Yelverton thought all good. For the first, Because that he refused to pay the 19 l. pro pretio, &c. But it had been bet­ter if he had alleged; That the Flesh amounted to such a price. But for the Demand, that it was sufficiently made. And adjourn­ed, &c.

Benson against Sankeridge.

IN an Assumpsit upon an Insimul computaverint, The Plaintiff de­clares, That he accounted for divers sums of mony to him due; And that the Defendant was found in arrear as much as he assumed to pay; And does not express for what the sums were due; And by Ri­chardson, therfore naught. For such an account for debt upon an Obligati­on in specialty it is void, &c. Hutton If he declared, That the Defendant be­ing [Page 85] indebted in diversis denariorum summis, assumed; it is void, without shewing for what. But here the action is grounded upon the Account. Richardson, It ought to be expressed in general, the debts were for Wares sold, &c. But otherwise if the Account was for debt upon an Ob­ligation or specialty, he recovers double. For the specialty remains not­withstanding the recovery in the Assumpsit. Hutton, We cannot think that it is for any thing, but such things which lye in account. Which Har­vey agreed. But the Court commanded to search Presidents.

Holford against Gibbes.

HOlford brought an Action upon the Case against Gibbes and his wife, who was Administratrix, upon a promise of the Intestate, which appears in the Declaration, that it was 16 years since the promise made. And Sir Thomas Crew prayed to be discharged of the Declaration upon the Statute of 21 Iac. cap. 16. But the Court would not discharge him without pleading or demurrer. But it was agreed, That if upon the shewing of the Plaintiff himself, the Action appears to be out of the Sta­tute of Limitations; Then the Defendant ought to plead the Statute, And he shall be aided by the averment. Richardson, If the Defendant pleads non Assumpsit, and the verdict finds that the Action grew out of the time of Limitation: whether it shall be ayded by a special Verdict. Crook said, Yea, But Yelverton seemd not; For it is not pertaining to the Issue.

Ganfords Case.

ONe Ganford was bound in an Obligation of 200 l. to Char. Rogers, to pay him 100 l. But that was in trust to the use of Mary Watkins, during her life, and after to George Powell. Powell cannot release that bond, neither in Law nor Equity, during the life of the Wife. For then it destroys the use to the Wife; As it was agreed. But if it was to her benefit solely, The Release is good in Equity.

Woolmerstons Case.

ONe libells against Woolmerston for the herbage of young Cattel, ( [...]cil.) for a penny for every one. And Hitcham moved for a Pro­hibition; And said that he ought not to have Tithes, If they are young Beasts brought up for the Cart or Plough. And so it hath been adjudg­ed. As if a Parson prescribe to have Tithes for hedgeing stuff, he cannot. Because that he preserves the Land out of which he had Tithes. And then a Parson libells for Tithes of an Orchard, for that that it was a young Orchard. And the Custome of the place was, to pay 4 d. for an Orchard. Hitcham said, There is not any such difference be­tween old and new Orchards. For if the Custome be that he shall pay 4 d. for every Orchard, It will reach to the new Orchard. And then he libells for a Harth-penny, for the Wood burnt in his House. Hutton said, the Harth-penny &c. is more doubtfull. For it is a Custome in the North parts to give an Harth-penny for Estovers burnt. For which he prescribes to be free of every thing which comes to the Fire. And in some parts by the Custome they had pasturage for the Tenth Beast, or the tenth part of the Gains which is barrain for the time. But he and Yel­verton who only were present, That no Tithes are due for them with­out Custome. Hitcham, they also will have Tithes for a thing before it [Page 86] comes to perfection, which would be tithable afterwards. But I agrée, If he sells them before they come to perfection, then the Parson will have tithes. But by Hutton and Yelverton, There may be a Custom to have every year a penny for them. Sed adjournatur, &c.

Viner against Eaton.

VIner against Eaton, Where a Sute was betwéen them in the Spri­tual Court, for striking in the Church, which by the second branch of the Statute of 5 E. 6. cap. 4. It is excommunication ipso facto. By which he surmised him incidisse in poenam excommunicationis. And being granted if, &c. And Ashley shew'd cause why it should not issue. (viz.) There ought to be a Declaration in the Christian Court of the Excom­munication: before any may prohibit him the Church. Richardson said, That their procéedings are not contrary to the Statute. But stood with the Statute. And it was said by Yelverton. It is seen that there ought to be a Declaration in the Spiritual Court. But the difference is, where it is officium Judicii or ad instantiam partis, they will give costs, which ought not to be. Hutton and Richardson, If the party will not follow it, none will take notice of it. And they proceed to give costs. Then a Hrohibition may be granted. And if he be a Minister he ought to be suspended for an offence against that Statute. And it ought to be first declared, and so to excommunication. And that cannot be plead­ed if it be not under Seal. Dyer 275. And after all, these were agreed by the Court, and no Prohibition was granted.

Fox against Vaughan and Hall.

SIr Charles Fox was Plaintiff in a Replevin against Sir George Vaughan, and Iacob Hall, for taking of his Beasts in Rustock, The Defendant was known as Bayliff of Tho. Vaughan at the day quod Wil­liam Vaughan was seised of the place, quo, &c. And being seised the 9th of Maii, 10 Iac. by Indenture granted to Thomas Vaughan a Rent of twenty Nobles per annum out of the place in quo, &c. to commence af­ter the death of Anne Vaugham, for life, payable at the Feasts of St. Michael, and the Annunciation. And if the Rent be in Arrear at any day of payment, or fourteen daies after the demand at a place out of the Land, scil. his Capital Messuage in Orleton; Then it should be lawfull for him to distrein; And he shews that twenty Marks were in arrear. And that 22 Iac. 22 Octob. He demands it at Orleton, &c. And the Plea in Bar was, That the Grantor was not compos mentis at the time. Vpon which Issue was taken. But it appeared upon the evidence that at the time of the Grant Gaudebat lucido intervallo. Whereupon it was found for the Defendant. And Sergeant Barkley moved in arrest of Iudge­ment; For that the Demand appears to be after the 14 daies. And he took a difference where the Demand ought to be made upon the Land, But there it may be demanded at any time. And the Distress it self is a Demand. As it was adjudged 20 Iac. in Skinners Case. But other­wise it ought to be out of the Land. Henden objected, because the Is­sue was joyned, That cannot be shewed. Richardson, Although there was Issue joyned; Yet it appears that you cannot distreyn without de­mand: if there be not actual demand of the Distress alleged; It is ille­gal. And for the matter he cited Maunds Case, 7 Rep. 28. And he doubted if such a difference would hold, Berkley, This difference was ta­ken by me before cited. But lecto recordo the Demand is not ex tunc pe­tito. But if it be in arrear, and required at the Capital Messuage, upon [Page 87] which he demanded, it does not refer to any place. Richardson, If there be a nomine poenae, then it ought to be demanded strictly at a day. And when it is to be demanded upon the Land, it may be at any time. For that, that Littleton sayes, That a Tenant is intended alwaies pre­sent upon the Land; But when the Demand is to be made at an o­ther day, it is only to give notice, and so it is demandable upon the Land. Hutton, by that exposition if he does not hit the demand upon the day, he shall lose his Rent. Richardson, He had lost his Distress by that day only, but not his Rent; For if he demand it after upon the Land, he may have an Assise. Hutton, you would make that partly a Rent-seck and partly a Rent-charge. Harvey, If the Rent be not gone, but that he may have an assise. Richardson, It is a Rent-charge generally by the clause of the distress. And for that he may have an Assise, which is a remedy for a Rent-charge as well as a Distress. Hutton, If you may make it a Rent-seck, you have lost the Rent-charge for ever. If a Grantee of a Rent-charge or Rent-seck brought an annuity. Richardson. If he proceed to Declaration he had lost the Rent-charge. Et adjournatur.

Note, It was said, if one comming upon an Attachment in any Court; And the other does not put in Interogatories against him, He shall be dimissed with costs, and may appear gratis if he will.

Warner against Barret.

ELizabeth Warner libells for a Legacy in the Spiritual Court against one Barret, who moves for a Prohibition. Because he had there plead­ed plene administ. and proved that, by one Witness, and they would not allow it. Richardson, before the Statute of E. 6. The proper Sute for Tithes was there, and they allow one Witness to prove payment; a Prohibition shall be granted. And he put Morris & Eatons Case in the Bi­shop of Winchesters Case. Where it was ruled, if the Spiritual Court will not allow that plea which is good in our Law, a Prohibition shall be grant­ed, as in Case of Tithes. And he said that the Case of a Legacy is all one. Crook, When one comes to discharge a thing by due matter of Law, and proves it by one Witness, If it be not allowed, no Prohibition shall be granted there. Richardson, Our Case is proof of plene. Administ. pleaded, which goes in discharge. But if there be enough pleaded, which goes in discharge, and proves that by one Witness, and not allowed; A Prohi­bition shall be granted. Hutton said, that properly for a Legacy the sute is in the Ecclesiastical Court, although they may sue in the Chancery for it; yet the proper Court is the Ecclesiastical Court; And they said, they used to allow one Witness with other good circumstantial proofs. If they be not in some criminal Causes, where of necessity there must be two Witnesses. In one Hawkins Case. Farm or of a Propriation, libells for Tithes of Lambs for seven years: And there he proved payment by one Witness; and a Prohibition was granted for not al­lowance. Yelverton, There may be a difference where the Sute is meerly Ecclesiasticall for a sum of mony; as for a Legacy there the payment of the legacy is of the nature of the thing. And the Ecclesiasti­cal Court shall have Iurisdiction of the proof and matter. But if one gives a legacy of 20 Oxen; And the other pleads payment of as much mony in satisfaction, there they cannot proceed, but upon Common law; For that that the legacy is altered. And if a proof of one Witness is not accepted, a Prohibition shall be granted. For now it is a legal Tryall. 35 H. 6 If the principal is proper for their Court, the accessory is of the same nature. Also the Sute is commenced for a Legacy: and the other [Page 88] pleads plene administ. There they proceed upon the Common law. For they sometimes take that for Assets, which our Law does not take. It was adjudged in the Kings Bench, that a proof by one Witness of a Release of a Legacy was disallowed, a Prohibition shall be granted. Crook, In this Case a proof of setting out of Tithes by one Witness a Prohibition shall be granted.

Hawkeridge's Case.

IT was agréed by all in Hawkeridge's Case, That in a forcible entry or Trespass brought against one; If the Defendant is found guilty by verdict, and before Iudgement the Plaintiff releases to him; Be­cause that by that the Plaintiff is barred, The King is also barred of his Fine.

Falkners Case.

ATthow Sergeant said, That if these words were wanting in a Déed. In cujus rei Testimon. That the Déed is not good; And he said, that all Covenants, Grants, and Agréements which came after those words in a Déed, are not of force, nor shall be pleaded as parcell of the Déed.

It was observed by the Court, That the Wife of a Duke, Earl, or Baron, in all writings they shall be named Ladies. But the Wives of Knights shall be named Dames.

And it was likewise observed, that if a Wife of a Duke, Earl, or Ba­ron, takes a new Husband of a more base degrée, That she loses her name of Dame or Lady, and shall be named in every Writ ac­cording to the degrée of her Husband. As it happened in the Case of the Lady.

Johnsons Case.

IT was said, if a Parson leases his Rectory for years, or parcel of his Glebe, reserving a Rent, and dies, his Successor accepts she Rent. That acceptance does not make the Lease good. Because by his death the Franktenement is in abeyance, and in no Man. And also a Parson cannot discontinue. And by consequence, That that he did with­out Livery is determined by his death. And it is not like to the Case of an Abbot, Prior, or Tenent in tayl.

Joyce Norton and Thomas Ducket against Harmer.

IOyce Norton and Thomas Ducket Plaintiffs against George Harmer the Vicar of, &c. In a Prohibition, the Libel was for Wood imployed in Hedging, and for Fire-wood. Issue was joyned, that there was in the Parish a great quantity of Land inclosed; And that they used to take Wood for Hedge-boot and Fire-boot, and they were discharged of Tithes, in consideration that he payed Tithes in kind of Hay and Corn, &c. And it was found for the Defendant. Crowley moved, That a Con­sultation cannot be granted, for that that they ought to be acquitted of Tithes for those of Common right. And for that although prescripti­on was alleged, it is nothing to the purpose. Atthowe, For Fire-wood it was proved that Tithes alwaies were paid. Richardson, There is [Page 89] no doubt but the discharge also ought to be by Custome, and to be grounded upon modus decimandi. Yelverton and Crook otherwise, that it is not upon modus decimandi, But by the Common law. And the reason is, for that, that when a man is Owner of arable Land, and he pay tithe-milk and Corn; And for that they are discharged of things consumed in the House; Which are to make Masters and Servants fit to manure the Land, &c. Richardson said, It is seen that it shall alwaies be discharg­ed, in consideration it is alleged, how a small consideration will serve. Crook, It is not modus decimandi, but the discharge is for that, that the Parson for them had a benefit, for he had by them better means of Tithes. Hutton, If a man had an House of Husbandry, and demises all the Lands but the House; He shall pay tithes for them absumpt. in the House. Crook not. No profit is made by them to the party; but the Parson had a benefit by him. And a day was given to search Presidents.

Bibble against Cunningham.

BIbble brought an Action upon the Case against Cunningham, and de­clares, That there was a Communication between him and the De­fendant of the sale of a Banck, and an acre of Land. And that in con­sideration thereof, and that the Plaintiff would assure and deliver to the Defendant possession of all the Banck assoon as he could; and that at all times upon request to be made to the Plaintiff by the Defendant, the Plaintiff would become bound in a Statute Merchant to make the Assurance to the Defendant; The Defendant promised to pay to the Plaintiff 72 l. at the end of 3 years from Michaelmas next ensuing. And that in the mean time for the forbearance he would give after 8 l. in the 100 l. and that he became bound in a Statute Merchant for the payment of 72 l. And he alleges that the Defendant did not become bound in the Statute; but that he himself delivered possession as soon as he could. And upon non-assumpsit pleaded, it was found for the Plaintiff. And Atthowe moved in Arrest of Iudgement; It is not a good consideration or promise. He said that there was a Colloquium and an Agreement, and in Consideration thereof, &c. That is not a good Consideration. And the second Consideration that he delivered, &c. tam citius quam potuit; It is not good, for it is uncertain. For it may be a year, or two years, or a day after. And the other promise to pay 8 l. in the hundred deferendo diem, And there is not any deferring the day; for it is not shewn that it is due before, and that he shall be bound in a Statute, and that no sum is expressed which is uncertain. Richardson, There is a good Considerati­on, and a good promise. There was an Agreement touching the sale of a Banck, and an acre of Land: and take all alike, and that perfects the Agreement. And it is plain that the Agreement was for 72 l. and the delivery of the possession, or making of assurance, is not any Consideration. But the promise is all the Consideration. And he might have omitted the averment of the delivery of the possession. But there is a cross and mutual promise upon which the Action might lye. As many times it had been adjudged in this Court, and in the Kings Bench. And for the words tam ci­tius quam potuit, the Law appoints the time (scilicet) so soon as he can go & remove his goods & things out of the House, &c. As in Case, where one sels goods for mony the Vendee shall have for telling the mony. And so here at the most, till request be made. And although it is not expressed in what sum he shall be bound by the Statute, Yet it appears, that it is for the payment of 72 l. And then the sum ought to be double in which he is bound. As if one arbitrate that he pay 72 l. and enters into an Obliga­tion for the payment of it. That shall be in the double sum. In which [Page 90] Case he said, that he could shew several Iudgements of it. Crook, If one promise to me divers things, some of which are certain; It is good. But also for the time of the delivery, there the Law adjudges of that; And the sum of the Statute shall be double, as it had been said. But for the Case of the Arbitrament, it is adjudged contrary; as 5 Salmons Case. And admit that it be uncertain, It is a reciprocal Assumpsit, and an Action will lye upon that. Hutton, If a promise to enter into an Obligation, there ought to be a reasonable sum, as the Case requires for it. And in this Case it being in a Statute, which is more penal than an Obligation, I conceive the same sum of 72 l. will serve. And for the time of the delivery of the possession; It ought to be in convenient time, or up­on request. As 2 H. 6. And the Law adjudges of the inconveniences of time. And although that he fails in the sum of his promises, the end of his promise is good enough; and the other is not concluded by that Action. But he might allege other considerations, in actions brought by him. Yelverton, There is but one promise against another; And the sum in the Statute ought to be the same sum. As the Case where an Annuity is granted of 20 l. untill the Grantee be advanced to a benefice; That ought to be a benefice of the same value. But I doubt whether it should be double. Harvey, It is there by way of promise. And then one promise is the consideration of another, and there is no breach, for it ought to be upon request. And then the Action being brought upon that side, the request cannot be alleged: and one promise good against another. Then be the sum what it will, ought the Defendant to be bound single or double? The Assumpsit not being performed, all agreed that the Action well lies.

A Verdict against an Infant.

NOte that it was said, If a verdict pass against an Infant, and the Defendant dies after verdict, and it is shewn, Iudgement shall not be given against him. For the Court does not give Iudgement a­gainst a dead man: and that is matter apparent, and the other is doubt­full matter.

Fortescue against Jobson.

A Man seised of certain Lands hath Issue two Sons, and devises one part of his Land, to the eldest Son, and his Heirs, and the residue to the youngest Son and his Heirs; And if both dye without Issue, that then it shall be sold by his Executors, and dyes. The eldest Son dies with­out Issue. And the opinion of Hutton, That the Executors could not sell any part before that both are dead. For the youngest Son hath an E­state tayl in Remainder, in the part of his eldest Brother. So that the Executors cannot sell it; And if they do sell it, yet that shall not prejudice the younger Brother; So long as he hath Heirs of his Body. Richardson said, That although that the eldest Son aliens, and after dies without Issue, That the Ex [...]cutors may make sale. For that that no interest was given to them; But only an Authority to sell the Lands.

Dicksons Case.

A Writ de partitione fac. against two, the one appears and grants the Partition, the other makes default. Hutton said, a Writ shall issue to the Sheriff to make Partition, but cesset executio, untill the other comes; For Partition cannot be by Writ; but between the whole. Otherwise it is of Partition by agreement.

Rothwells Case.

IF a Man makes a Lease for life, and the Lessee for life makes a Lease for years, And afterwards purchases the reversion, and dies within the Term, yet the Lease for years is determined; And the Heir in reversion may oust him, and avoid. But if one will make a Lease for years where he had nothing, and afterwards purchases the Land; and the Lessor dies; If that be by Deed indented; The Heir shall be estopped to avoid it. By Hutton, Crook, and Richardson.

Sir Charles Foxes Case.

THe Case of Sir Charles Fox was now moved again by Henden. It was objected that there ought to be an express demand at the day, or otherwise he ought not to distreyn.

But first it appears, that he had a good Title to the Rent, then there being a verdict found, he ought to have Iudgement upon the Statute. But not admit that; Yet the Demand is good; for the words are legi­time petit. and no time expressed. And although the Demand is after the day, yet it is sufficient for all the arrerages, for the words are tunc et ibidem, but, &c. And the Difference is between the Demand which intitles to the Action, and to the thing it self. Maunds Case, 7 Rep. 20. 40 Eliz. between Stanley and Read. Where it was agreed, That the day of the Demand cannot be made parcel of the Issue. 31 Eliz. rot. 1137. Com. Banc. Dennis & Varneys Case. There the Book was a­greed. If it be to be demanded generally, it may be at any time, if it be tunc petit. otherwise. For otherwise it would be a Rent-charge at one time, and a Rent-seck at another. And the Distress it self is the De­mand; As it is in Lucas Case. If one be obliged to pay mony upon De­mand; The Action brought is a sufficient demand. And Barkley Sergeant. He shews in the Avowry that such a one was seised of 20 a­cres, and grants a Rent out of them and others, by the name of all his Lands in Rustock and Ollerton. For that he said that Ollerton is not charged. Because that it is not pleaded, that he was seised of that. But the whole Court on the contrary. And that it is an usual manner of pleading: And that it shall be intended, that he was seised of Ollerton. First the words are per scriptum, &c. he granted a Rent, and then he pleads, that per scriptum suum, he gave a power to distreyn; And then it shall be ta­ken that it was not made by any other Deed; and the Distress given by the second Deed, shall not make the Rent a Rent-charge. And he cited Buts Case. Then if it be a Rent-seck, and the Distress gives a nomine paenoe, There ought to be an actual Demand, and that upon the day; as it appears by Maunds Case. And Pilkintons Case, 5 Rep. & 5 Eliz. Dyer. If it was a Rent-charge, the Distress it self serves for a Demand; As it was many times adjudged.

Secondly; The words are, If the Rent be in arrear, any day of pay­ment, or 14 daies after. The last instant of the 14th day is the legal time for demand of it. And the words existent. legitime petit. ought to refer to the daies expressed immediately before. As 39 H. 6. A man obliges, that his Feoffees shall do such an Act, si quisuerunt. Those words shall have reference to the Feoffées. And Dockwrays Case, If a Man be obliged that his Children, which he now hath, so also existent. Being words of the Present tence, refer to the days now mentioned: and otherwise there would be a great inconvenience. For it cannot be intended the same tenant to be alwaies upon the Land. Barrows Case, 20 Eliz. A Feoff­ment [Page 92] upon Condition to re-enfeoff upon demand at such a place. It can­not be demanded without notice to the Feossée; For that that he shall not be compelled to be there alwaies expecting. And the same inconve­nience alwaies would follow, If the demand should not be upon the day of payment, by which, &c. Richardson, If the Rent had béen gran­ted out of 20 acres in Rustock, and then he had granted by another Déed, that he should destreyn in other Lands, being in the same County or not, and is the same, That that is but a Rent-seck. 10 Assise. 21 Ass. And the Distress is not but a penalty. And if that Rent is granted by one Deed, and the distress upon the Land by another Deed, If it be not delivered at the same time, then there shall be a Rent-charge, and there shall be also a Rent-seck. And when also it is said, that ulterius he grants per scriptum suum, and does not say praedict. It shall be intended another Deed then, without averment, that it was delivered at the same time, It shall be intended at another time. But admit that it be a Rent-charge, and that it issue out of Ollerton where the demand of it was; Yet he ought to maintain that actually. In Maunds Case. The distress is a sufficient demand; For it is not but to inable him to destreyn, and that is where the demand is limitted generally. But if a Rent be gran­ted, and if it be demanded of the person of the Gruntor, he may destreyn; Then there may be an actual demand, that was adjudged. As in the Court, 15 Jac. Com. Banc. Iackson and Langfords Case, and in one Ar­merys Case. And in another upon the same point. So if you will grant a Rent-charge demandable at a special and particular place; If it was at another place than the Land charged, Without doubt there ought to be an actual demand. So if it be upon a special place from the Land char­ged or demanded; for the distress ought to be pursued as the Grant is. And that is upon such a demand. But where it is restrained by the words of the Grant. And the same Law is where you will limit the time of the demand; If the Rent be granted payable at such a day, and grants over that ad tunc being demanded: there a legal and general demand will not serve; But there ought to be an actual demand; And also it is as much although not in express words; for the sence and meaning carries it. If it be arrear at such a day existent. petit. The de­mand ought to be at the day mentioned before. If I be bound in Ob­ligation, the Condition to pay mony at such a day, being demand­ed; There ought to be a demand at the day of payment, or there shall not be a forfeiture. And now then there is not a demand at the time, so no cause of distress. And although the Verdict be found, if it be collateral matter, yet it will not help. For when it ap­pears upon the whole matter, that there is not any Title to distreyn; the Tryall will not help it. And so Iudgement shall be given for the Plaintiff. Hutton, Harvy and Yelverton agreed, That if it was a Rent-seck, and the distress a penalty, there ought to be an actuall demand at the time limited. But in case of a Rent-charge, although the demand is limited to be made upon parcell, Yet they all held, that a generall demand will serve; And that shall be at any place, at any time. For Harvey said, There is no oddes whether it is limited to be demanded generally, or to be demanded upon Dale. If it be material, it ought to be observed in the one Case as well as in the other.

Stanleys Case.

IN one Stanleys Case, in an Action of Battery, Sir Thomas Crew mo­ved for mitigating the dammages; Where the Iudgement was given upon a non sum informatus, and afterwards a Writ of enquiry of dam­mages. But the Court said, That in such Cases they never will alter the dammages. And Crook said, that he was once of Councel in an Action of Trespass pedibus ambulando in the Kings Bench in such a Case, upon a Writ of enquiry of dammages, 10 l. was given. That he could never have a mitigation by the Court, &c.

Outlary.

NOte, it was said, That an Outlary in the same term for error may be reversed in the Common Bench; Or in any term, if it be void upon any Statute. As for want of Proclamations, &c. And an Outla­ry was reversed for that the Writ was praecipimus tibi where it should have been vobis to the Sheriffs of London.

Gammons Case before.

IT was now moved again, And the Court was of the same opinion. For take the sale for a reasonable price, and the Conclusion alike, and by that the price appears. And although he said 19 l. he might have found less.

Secondly the Request shewen in the end shall be referred to all the particular sums reservando singula singulis. And Harvey said, He was of Councel in the Kings Bench, Where the Writ was pro diversis bar­rellis of Bear. And in his Declaration he shews, that at one day he deli­vered one, and at an other day another. And it was ruled, that the De­claration well maintained the Writ.

Thornills Case.

A Parson libels for the tithes of young Cattel preserved for the Cart. And the Question was as before, Whether in such Cases a Cu­stome ought to be surmised. And Crook, Fitz-Herberts nat. brev. is, That of right Tithes shall not be paid for such things. Richardson, In all such Cases the Parson ought not to have Tithes, if there be not a Custome alleged, by which the Parson had any thing, or recompence, or by which his other Tithe is better. And he said, that he had searched the Books, and the Book of Entries, And there is not any such Case, but some sur­mise is made, as for that, that he had tithe of Corn in specie where the Land is inclosed; And so the Corn better. Hutton, It ought to be try­ed if the thing in his nature be tithable, or if there be any usage to dis­charge it or not, as the Cattel are in their nature titheable, then you can­not prohibit it; But the usage ought to be surmised so. And it may be Law, as the Parson had better tithes. Harvey, If a Libell be for tithes of Hedgeing and Fenceing; there a surmise ought to be made to discharge that. But when it is for tithes of Heyfars, which in apparency ought to be spared by the Law of the Land, Otherwise it is, &c. Richardson, For the herbage of those Heyfars, tithe is due by the Ecclesiasticall law. And we never can take tithe of them without express custome or other re­compence. Harvey, There was a Case 16 Jac. Com. Banc. A Parson sues for the herbage of Horses, and the other alleged, that he kept them for the carrying of Coals. There he ought to surmise something to be [Page 94] discharged; And if he allege that he kept them in his house for serving of Husbandry; the other may allege that he kept them to carry Coals, and the allegation is traversable. Richardson, There was a case, where the question was, A Husbandman keeps an Horse to ride up and down about his business; whether he shall pay for the herbage of him. And a prohibition in that case was granted; But a surmise ought to be made. Crook said, that in the Kings Bench he had 20 times seen a prohibition granted in such cases, without any surmise. And a libel is for dry Cat­tel; If it be alleged that they are kept for the Plough, the other may allege that he keeps them to sell, without that, that he keeps them for the plough. And before there is any profit of them, it is not reason they should be tithable, and the Parson shall have the benefit for them after. And for hedging it is lex terrae that he shall pay no tithes. Richardson, It is lex terrae ne consuetudo loci facit legem terrae. And if he had used to pay tithes for the Cattel or for hedging, he ought not to pay that still. If an ignorant man will pay tithes for those things, and after upon a livell a prohibition is granted; if the other does not allege a custom, the prohibi­tion shall stand; or if they allege a custom, which is found against him, no consultation shall be granted And for a Garden penny, the reason of that is apparent: for otherwise tithes shall be paid in specie: And so for Harth-penny, if he had always paid it, it ought to be paid. Hutton, If a man had an antient garden for which he paid a penny, and that is inlar­ged, of that inlargement tithes ought to be paid in specie.

Rowe and Dewbancks Case.

IN a prohibition for slanderous words. Brampston shewed cause why a prohibition should not issue. The words were, That one Harvey and Rowe should report that Mary Marrian should say that Dewbanck and one Anne Rowe were together in such a ones house, in an upper Room, and that the bed there was tumbled; And reported that she said, a pox of all Whores and Bawds; And that the Husband of Anne Rowe came to demand his wife at the house, and they denyed her to be there; And that after they were both seen to goe out of a Broomy field, and that one should wish he had been in a tree to have seen what they did. And he said, that a pro­hibition shall not be granted; for that these words may have dubious in­terpretations; for they may be spoken in mirth, or in heat, as well as to defame: But when other words are joyned with them, they shall not be granted. And these words so cannot be taken, but that they were ad­visedly spoken to slander. As in Ayliffs case before, when it is added, that he lay with such a woman, a prohibition shall not be granted. Ri­chardson. These things are requisite in every action, forwords.

First, That the parties of whom the words are spoken be certain.

Secondly, that the words tend to slander. By imputing a direct offence, that should not be punishable; there now there may be a great familiarity, and no hurt done. And he is not directly charged with any offence, as it was in Ayliffes case; wherefore it was ruled that a prohibition should issue.

Eaton against Ayliffe.

EAton libells against Ayliffe, pretending that a seat that the other claim­ed always, belonged to his house, and sentence in the spiritual Court was given against Eaton, and costs pro falso clamore. And he ap­pealed to the Arches, and there when they were ready to affirm the sentence, he prayed a prohibition. And it was moved by Davenport, that it might be granted; and he cited one Treshams case 33 Eliz. Where [Page 95] in such a case a prohibition was granted after an appeal. Richardson, There is no cause for any prohibition, but in respect of the costs. Hutton said it was a double vexation, and the party shall not have costs for that, Hitcham said they came too late to have a prohibition for the costs. Ri­chardson, That is not like to the probate of a Will, where a thing may fall out tryable at the Common Law. But there the principal was try­able at the Common Law, for they had it as in right. Hutton, Seats in the generalty is in the power of the Ordinary to dispose: It is the pre­scription which makes that not tryable at the Common Law; And if pre­scription be made there, and it is found, that he shall pay costs. Ri­chardson, All disturbances appertain also to them: If it be not upon the Statute of 5 E. 6. But if a title be made there by prescription, it is méer­ly coram non Judice; and if they cannot meddle with the principal, it is not reason that they shall tax costs. And a prohibition was gran­ted.

Fawkner against Bradley.

FAwkner and others against Bradley. In false judgement given be­fore the Sheriff of B [...]rkshire, Bradley brought a replevin against Fawkner, and the others; who commanded the Sheriff to deliver the goods, and summon the parties to appear. The parties being demanded at the day, they appeared, and then the Plaintiff declared, upon which it was proceeded to Iudgement. And it was held to be naught; For that he declared before any appearance. But upon the default he might have an attachment, and a distresse insuing.

Dame Sherleys Case.

DAme Sherley wife of Sir Henry Sherley sued in the High Commissi­on Court for Alimony. And Hitcham moved for a prohibition. And said that alimony is not within the jurisdiction of the high Commssion; For the Court of high Commission is to try ardua regni, which are not tryable by the Common law. Richardson, The power of the high Com­mission is not de arduis regni, but of heresies, and of such other things Ecclesiastical. And he said that the Court of high Commission, had spe­cial words in their Commission, but not in the Statute of primo; and that the Statute de primo had no prerogative in that. And so the question is, if the King may by the Common Law grant such a Commission. Hutton said, that by the same reason as he may grant such a Commission; They may grant Commissions for all other things. Yelverton, I mar­vail how that came within their Commission: he said, that in tempore Ia­cobi, upon a debate before him, Sir Edward Cook so fully satisfied the King. And this matter of Alimony was commanded to be put out of their Commission. And upon that Richardson said to Hitcham, Move this again when the Court is full, for we may advise of this; Et adjournat.

Lynne against Coningham.

LYnne against Coningham in an action upon the case, the matter was thus. An action of debt was brought by the Plaintiff, and he reco­vered, and had a capias ad satisfaciendum to take the party. The Sheriff arrests him, and the Defendant made a rescous. And in that if an action lies for the Plaintiff was the question. And Ayliff said, that the action did not lie against the party who made the rescous, but against the She­riff. And he cited Fitzher. Nat. Brev. 16 E. 4.3. where the difference is. [...] [Page 94] [...] [Page 95] [Page 96] If an arrest be made upon a mean process, and a rescous made, There the Sheriff is not responsable. Because that the Plaintiff might conti­nue his processe against the Defendant. But if it be upon Execution after Iudgement; Now an action does not lye against the party, but against the Sheriff: And if he had an action against the party, he shall have an action against the Sheriff also, and so twice satisfied. And the Sheriff shall have an action against the party, and so he shall be twice charged. Richardson said, That the action well lies for the Case in 16 E. 4. It is séen there, that it is doubted upon the mean proces & execution, as to the rescous, the party may have an action either against the Sheriff or the rescoussers. And in some cases a man shall have his election of the actions, and both actions are but to recover damages. A man had an execution against one, He saw the man, and conveyed him out of his sight, And it was adjudg­ed that an action upon the case lies against him. And peradventure the Sheriff is dead, then he should have no remedy, if he had not an action against the party, and no inconvenience follow; For he that will do such a wrong, it is no matter if he be charged by both. If the Sheriff suffer one to escape, it is an escape as to the Sheriff; but the Plaintiff may have a new execution against the party if he will, as it was resolved in this Court; but Hutton on the contrary, and that the action does not lie. As if a man be imprisoned, and an other help him out of prison; yet an action will not lie against him by the Plaintiff; And the difference is good, where a man is arrested upon a mean processe, and rescued, and af­terwards becomes non solvend. so that they who rescued him is the cause of the loss of my debt; It is a wrong upon which he may be indicted. Yet the party shall not have a remedy against him, because that he may proceed. And then he should be the cause of multiplicity of actions. Yelverton was of the same opinion, and agreed that difference put before. And that there is no difference between this case, and the case put by Hutton. For a rescous made half an hour after the arrest is all one as if it were a year after. And Fitzherb. nat. brev. 102. satisfies me. Harvey on the contrary, He who was injured, the law gives him a reme­dy against the party who did the wrong. In the Kings Bench, the case how one came to take in execution by a fier. fac. the goods being in an house, and one séeing the Sheriff came and shut close the door, and adjudged that an action upon the case lies against him. And there is no difference be­tween our case and that, where one comes to make execution, and the o­ther makes a rescous. Richardson in Greshams case; Gresham was possessor of the glasse house at Black-fryars. Beresford was a Glass-ma­maker, and had many glasses in Greshams house. Seaman recovers in debt against Beresford, and coming to make Execution of those glasses, Gre­sham standing at his door, séeing them coming, and knowing their pur­pose, shut the doors. Seaman brought an action upon the case against him, and judgement was given for the Defendant, because that the Sheriff never demanded the Key to open the house, 18 E. 2. If he had demanded the Key, it had been adjudged against Gresham. And there if an action upon the case will lie for hindring to make execution, a multo fortiori, when it is actu­ally done, and then the party rescued. And he denied the case put by Hut­ton, where one is rescued out of prison. And said, if one be rescued from the Bayliffs, the Sheriff ought to have the action. Hutton upon a mean process, the Sheriff never had remedy for the rescous, but he shall re­turn the rescous. But upon an execution, he shall not return the rescous, but he shall have an action, and that the party is not prejudiced; for he shall have an action against the Sheriff, who in judge­ment of law is the party lyable. Crook, That the action will lie is a mischief on both parts. The Defendant may be twice charged, and the Plaintiff may lose his Debt. But I conceive the action well lies against [Page 97] him who made the rescous, &c. And if the Sheriff brings the action he may plead the recovery by the Plaintiff; when the Sheriff makes his return of the rescous, there is no remedy against him, as it was adjudged; And the difference is, that when he goes to make execution, it is at his pe­ril if he does not take power enough with him, so that he may do it. And if the Gaol be broken, it is no excuse for the Sheriff. Also if the party taken before he come to the Gaol is rescued, there is no remedy against the executors of the Sheriff. If debt be brought against the Sheriff for an escape, and in that a recovery, the Plaintiff shall never take the party again: And so also if he brought an action against the party, and recovered, the Sheriff may plead that. And for the book in Fitzh. Nat. brev. cited, it remains doubtfull. Hutton, a Stranger commits waste, and the Lessee dies, yet no remedy against the party who committed the waste; for the Lessee is charged of waste. And so also the Sheriff of an escape. But after, as it was told me by one who was present, Iudgement was given for the Plaintiff.

Humbertons Case.

IT was said by Richardson, and agreed by Hutton, That a term evicted upon an Elegit is grantable; but upon a Statute Staple, or Merchant, not. And Richardson said, That Fillwoods case in the 4 rep. 66. if it be well observed, will prove that difference.

Isham and Lawnes Case.

NOte, in evidence to the Iury in an Ejectione firm. betwéen Isham and Lawne, It was said by Richardson and Hutton, and by divers Ser­jeants at the bar, and not denyed by any, If a Son disseise his father, and levy a fine with proclamations to a Stranger: upon whom the Fa­ther enters and dies, The son may re-enter against his own fine.

Allen against Westley.

IN evidence to the Iury betwéen Robert Allen, and Isaac Westley, upon the 5. Eliz for perjury: Richardson there remembred, that there was one charged with perjury, and it was layed; that one swore that he drew his dagger, and beat and wounded another; And it was found to be with a staff; and it was agréed not to be perjury; for the beating was only material. It was one Styles's his case; and it was agréed by the Court in that case, that although a witness swears the truth; yet if it be not truth of his own knowledge, as if he shews how one revoked a will by paroll, in his hearing, when the words were spoken to another in his absence, he does not swear truly, and it is a corrupt oath within the Statute. And it appears in the case in which this perjury was supposed to be committed, which was between Allen and Westley; also that these words were good words of revocation of a will. I utterly renounce and detest that Will, and will make a new one; But if they were, That Will shall not stand, I will make a new one, they are not; For the first shews a present purpose of revocation, the last a fortiori; but more afterwards.

Thomas and Kennis's Case before.

DAvenport argued for the Plaintiff. And the Question here is, Whe­ther there was any Estate in Edward and Walter setled at the time of the Fine levyed? Or their Estate was only in contingency? Because that Richard was then living. For I agrée, that if at the time of the [Page 98] Fine levyed, Edward and Walter had not any Estate setled or vested but all in contingency, That then the Fine destroyed all the Remainders. For it is clear when Tenant for life is, and the Remainder in contin­gency levy a Fine; That is a forfeiture; and destroys all the contin­gent Remainders. 1 Rep. 131. I hope that they will agrée, that if there be an Estate setled in them, that Tenant for life levies that Fine; Al­though that they in the Remainder do not enter within 5 years after the death of Tenant, or after the estate escheated. And that was adjudged 21 Jac. Tooker & Lawns Case in the Kings Bench. But the Case was Mich. 33 & 34 Eliz. The Question then is, whether Edward and Walter having any Estates setled in them, two Estates are so limited to them joyntly for their lives, so long as Richard and Anne shall have issue male of their bodies living.

Secondly, The Estate to them was to their own use, and that was not joyntly but successive. And if any of those uses were in esse at that time of the Fine, then they fall out clearly with the Plaintiff. I con­ceive that both their Estates were in them. First, concerning the first Remainder limited to their joynt use, in which it is to be considered; Where the not setting forth of the Lands makes it contingent. It is a strange Case. That if the directions for the setting out had been observed, that then there might have been a present Estate setled upon a subsequent Condition, and not upon a precedent Condition. Where it ought to be agréed, when the Indenture is made with a Covenant to levy a Fine, That no use will rise before the Fine. Coment. 302. Then although some things ought to be done before the uses will rise. If those things had been done, the use ought to be raised. For certum est quod certum reddi potest. 17 E. 4. 1. When contracts are upon incertainties, when the thing uncertain is become certain; when the Indenture was sealed, that made a contingent use in the limitation, but when the thing had been done, it shall make a perfect use in the limitation. But now it is become impossible by the non-performance, &c. It had been urged that so there shall be a double contingent, which is concerning the Houses, &c. I say there is a great difference, between a Collateral use which does not de­pend upon the other Estates, and an Estate limited in course of a Re­mainder. I agree, if they be contingent Remainders, the Fine will de­stroy and overthrow them: but if there be a collateral clause by which a use is limited; As if there be a Proviso, that if such mony be not pay­ed, it shall be to such an use; That contingent use is not destroyed by Fine. 1 Rep. 130, 134. Chidleys Case, where the difference is directly taken; If a Feoffment be made to the use of the Feoffee for life, with divers contingent Remainders over. If Tenant for life makes a Fe­offment, all the contingent Remainders are destroyed. But where the contingent came in by a collateral Clause, and not by way of Remain­der, otherwise it is. As a Feoffment to the use of a man and his wife, which shall be a Remainder over. That is a good use to the wife, and cannot be destroyed by feoffment. Dyer 274. and Bracebridges Case cited in Chudleys Case 133. It was adjudged accordingly. In the third branch here it is; If he dies, then she should have the Houses during wid­dowhood. But the course of the Remainder came in the fourth clause; And that had relation to the first. And as to the second as it is shewn: that at the time of the limitation it was not the intent, that the Remainder shall be contingent to Edward and Walter. If I grant to a man, that if he mary my Daughter, he shall have my Mannor of Dale for years, the mariage ought to be before he shall have any thing in the Mannor. But if it had been, that he should have had my Mannor for 7 years, if he mary my Daughter; Then the mariage is conditional subsequent, that if he does not mary, I shall have my Mannor again. 10 E. 3. 44. The Abbot of [Page 99] Bosneys. The difference is there put by Brerewood. Trin. 4 Car. Com. Banc. 36. H. 6. An Annui­ty granted untill he was promoted to a benefice; That is conditional from the Defeasance. But if it was, that the Grantée did such an Act, that he should have an Annuity. And ex vi termini there is a perfect E­state before the if, and the former if is well explained by the last; That if there be not issue male, then the Estate shall cease. 10 Rep. 41. A Condi­tion in its nature is not to precede an Estate. As if the Lands be given to a woman for years, si tam diu vixerit. 35 Assise plo. 14. The Case in point of a Remainder, which comes to our Case, and conteyns both the parts of that difference. As it is in Colthursts and Binshams Case. The Prior and Covent of Bath leases Land for life, the Remainder to W. Si ipse inhabitare et residens esse velit infra praedict. terram. And if it shall happen that the said W. should mary before H. Then the Remainder to P. And the Question is, whether it is a Condition precedent or subse­quent. Resolved, that the second is precedent. For that, that the (Si) precedes, and for that makes the Estate contingent. But for the other (Si) after the Estate limited, Si ipse inhabitare vellet. They were the very words of Mountague Chief Iustice, It cannot be denyed but that it is subsequent, and then goes in Defeasance; and the other ought to shew the non-performance of it. And that Case is more strong than our Case is, For that Estate is by way of Livery, not by use. For in Case of Livery, there he ought to have a time to do the thing. And our Case then, he should have for life determinable upon the (Si) &c. And that construction of Vses shall be clear by the intent, which appears that there ought to be a present Estate; Where uses are by Indenture, if by one constructi­on the Intent is frustrate; and if by another upheld, That ought to be ta­ken ut res magis valeat, &c. The Lord Sturtons Case. Where a Lease was made of a Mannor to two Hubbards, to have to them, and to two o­thers for their lives: the first two dye. And it was ruled, that it was good but to the first two for their lives, and not for the lives of the four. Because they shall take but in point of Estate. See more af­ter.

The King against the Bishop of Canterbury.

THe King brought a Quare impedit against the Bishop of Canterbury, Sir John Hall, and Richard Clark, for the Church of Marleborough in Northamptonshire. And declares that Richard White was seised of the Mannor, to which the Advowson belonged. And the 6 Iac. by Indenture, he covenanted to stand seised to the use of himself and his wife for their lives, and to the Heirs of Richard White, And after White presents one Boyn­ton, and dies, and his wife maries with Sir Iohn Hall. The first of Iune 6th Iacob. by Deed grants proximam advocationem to two, to this intent, that he might receive of such a Parson, that he presented, all mony as should be agréed betwéen Grantor and Grantee; And that this was done Boynton lying in extremis. And then the 26 Ian. 16 Iacob. there was a corrupt agreement between Sir Iohn Hall and one of the Grantees, That for 200 l. to be paid by the Clark Blundell, That the other Grantee should present him. And the first of February Blundell pays Sir Richard the mony, and the second day he was presented, instituted, and [Page 100] inducted accordingly. And that upon this it appertained to the King to present: The Bishop pleads but as Ordinary: Sir Iohn Hall makes a Title, and traverses the corrupt agreement. The Incumbent pleads by Protestation that there was not any corrupt agreement, as it was alle­ged, and not answers whether the mony was paid or not; But that he is Parson imparsonee of the presentment of But 16 Iacob. after such an agreement (scil.) 17 Feb. he was presented by the Letters Pa­tents of the King to this Church, and never answers to the Symony. And it was held by the Court to be naught, and only pleaded to hin­der the Execution before the Iustices of Assise, If the Tryal went a­gainst the Patron.

Upon a Prohibition.

ONe libells against another in the Spiritual Court for the tithe of two pecks of Apples, and for feeding the Cattel upon the Ground. And the Defendant for the Apples answered, That there were two Pecks only growing in his Orchard, and that they were stollen and never came to his use; and for the Cattel, that they were antient Milch­beasts, and that they growing old were dry; And that for a month they depastured with other Heyfars, and that after they put them in a Mea­dow, out of which the Hay was carried; And afterwards he fed them with hay in his House. Atthowe, Because that the Answers were not admitted, prayed a Prohibition. Hutton, If Appples are upon the Trees, and taken by a Stranger, shall the Parson be hindred of his tithe? Yelverton. If I suffer one to pull my Apples the Parson shall have tithes. But if they be taken by Persons not known, the Parson shall not have tithes of them; Which was granted. For they are not tithable before plucking. And for that if he suffer them to hang so long by negligence, after the time, that they are imbessed, By Yelverton he shall pay tithes. For the second matter it was agreed by the Court, and for the depasturing in the Meadow, and for the Hay with which they were fedd, afterwards tithe shall not be paid. Because that the Parson had tithes of them before. But if the Question is for the tithes when he went with the other Heyfars, By Crook, that is no cause to excuse the tithe. Harvey, If I have ten Milch-kine, which I purpose to reserve for Calves, and they are dry, The Parson shall not have tithe for their Pasture. But if I sell them, by which it appears I kept them for fat­ting, There tithes shall be paid. Hutton agreed, That although that there was so small time, yet when they went with the Heyfars he shall pay tithes for them.

Goddard and Tilers Case.

GOddard against Tiler in a Prohibition. Tiler sued for tithes of Milk and Calves, upon which modus decimandi surmised. A Prohibition was granted (viz.) That every Inhabitant should pay 4 d. for every Cow, and 2 d. for every Calf, which they proved that there was never tithe paid in specie; But that every Inhabitant should pay 6 d. and some 7 d &c. And because that that was not the proof of the suggestion, At­thow prayed a consultation, and by the Court upon that reason it was granted: But it was agreed, that if the modus was alleged 20 s. and proved 40 s. it is good, because it is but to intitle the Court to the juris­diction; but in the principal case no modus is proved, for it is meer incer­tainty. More afterwards.

Farrington against Kemarre.

FArrington brought an information against Kemarre upon the statute of 32 H. 8. cap. 4. for selling of Beer for more than the Iustices assest. And upon the issue of not-guilty joyned, he had a verdict found for him against the Defendant. Atthow moved in arrest of Iudgement, that the Court had not Iurisdiction; for that the Statute 21 Jacob. cap. 4. It is enacted, That all informations which may be before the Iustices of peace, nisi prius, Assize, Gaol delivery, Dyer and Terminer, shall be before them, and not elsewhere. And he said, that an information for this matter may be before the Iustices of Peace, &c. But he argued upon the statute of 33 H. 8. cap. 10. 17 H. 8. cap 11. that they may inquire of Vagabonds, &c. Victuals, and Victuallers, and Inneholders. So that the point is, whether it was an offence within the Statute of 33 H. 8. For if there be an Information, it is given by express words. But that sta­tute does not oust the Iurisdiction of this Court; but the Subject had his Election, until the Statute of 21 Jac. which confirms such Informati­ons. So that the question is, whether now Brewers be within the word Victuallers, or Beer within the word Victuals: And I conceive that béer is victuals, and Brewers are Victuallers; which I prove by common experience, and by another Statute. There is no Statute in England but make informations against Brewers, before the Iustices of Peace; And they are all erroneous if they be not within the word Victuallers. For by 23 H. 8. A remedy is only given against them by an action of debt, bill, &c. in which no protection, Essoyn, or wager of Law shall be allowed but at the Courts of Westminster: Then they ought to be upon that Sta­tute of 33 H. 8. And Lambert and Crompton are much deceived; For it is an article of their Charge to enquire of Brewers. But another statute, (viz.) 2 E. 6. cap. 15. The Brewers are called Victuallers, The words are, If any Butchers, Brewers, Bakers, Poulterers, Cooks, Coster-mon­gers, &c. conspire to sell their Victuals, &c. And what victuals shall be sold by a Brewer but Beer? And there the whole Parliament were mistaken if Brewers were not Victuallers: And for that he concludes, that because that that offence at the making of 21 Iac. was punishable by Information before the Iustices of the Peace. For that by this Statute this Court shall not have Iurisdiction. But Hitcham on the contrary. The Sta­tute of 21 H. 8. says; That for offences of Brewers they shall be in­quired of by the Courts of the King; That it is meant the four Courts at Westminster is clear. And when one Statute is made which confirms a sute at the four Courts of Westminster: yet if by a second Statute you will alter that, you ought to have precise words: And if you bring that within the word Victual, you abrogate the Statute by general words, against the wisdom of Parliament before, which provided that those offen­ces should not be inquirable in the Country, and then the Statute of little force. Et loquendum ut Vulgus. It is improper to say, that a Brewer is a Victualler, for they are such who sell in specie. And in the Country if it he inquired, whether it be an Alehouse, or a Victualling house: It is said that this is he who sells victuals, which is for the sustenance of a man, by the Statute of 2 E. 6. you will say a Brewer there to be a Victualler; for in every Statute the intention ought to be respected. For if it goes to Cost ermongers, it is more clear in reason that Brewers shall be within that; and Corn and Beer are the chief things which conserve a Common­wealth. And for that within. And the Statute extends to them for con­spiracy, for inhauncing the prizes. For they take their Courts to be with­in the Courts of the King. For those words were not explained until Gregories Case, Co. lib. 6. And being one time within their charge, they observe their old tract.

Henden argued and divided his matter into thrée parts.

First, He shewed how that Statute consists upon the Statute upon 23. 33. 37 H. 8. And it is clear upon 23 H. 8. what informations ought to be in those Courts, 7 Eliz. Dyer. 23. b. 37 H. 8. repeal 33. Only for a particular thing (viz.) of the time to enquire of those Offen­ces by the Iustices, and makes them inquirable at the Sessi­ons.

Secondly, Whether the Statute 33. took this thing from 23 H. 8. And he thought it did not: Neither by the intention of the scope of the Act, nor by the words. First the intention of the Statute was not to inlarge the power of a Iustice of Peace, but to provide that some things should be duly executed. Which appears first by the Title, and then the Pre­amble. And if they have not particular Statutes, they cannot meddle with that by the general words: By which it follows, that they had not power for Victuallers. Now the 35 H. 8. cap. 3. provides that Victu­als shall be sold, and at what prices: then when that Statute of 33 H. 8. came within 8 years, certainly there was a respect to that; And the Statute before concerning Victualls only is, that Victuallers might contain Brewers. For to say generally, that Victuallers should be Brewers, shall be absurd. 8 Rep. Bonhams Case. A Brewer is a Trade, and may be intended under general words: But it shall be alwaies secundum subjectam materiam. As some Statutes which punish the selling of Victuals at anj unreasonable rate, and Beer there is not Victual. And by 2 E. 6. cap. 15. There is not an express name of a Brewer. Which imports, that it was not contained within the gene­ral word Victualler. 2 E. 3. 6. Where there is a Common price for cer­tain things to be sold at reasonable prices; Where Brewers, &c. are na­med, 28 H. 8. Hostlers, Brewers, and other Victuallers, &c. Then these Statutes prove that you ought to have Brewers expresly named; If you will have them taken as Victuallers. But (posito) that Brew­ers are within the general words of 33 H. 8. yet the power of this Court is not taken away by the Statute of 21 Iac. In the Kings Bench. An In­formation was upon the Statute of Vsury, which was inquirable before the Iustices of Peace, at the time of the making of 21 Iac. And the Question was, Whether Informations are taken by 22 Iac. in Case of Vsury from the Courts of Westminster. And adjudged that they were not. Because that it is expresly limited to those Courts in a branch of the Statute of 37 H. 8. cap. 9. In one Fosters Case, 11 Rep. it is plain, that Affirmative words cannot take that from those Courts at Westmin­ster. For those are excepted by the Law; If this Statute extends to take the power given to another Law, you will repeal former Statutes without express words. And there is a good rule, take 18 Eliz. Dyer 247. pl. 12. which see.

Thirdly, It ought to have been pleaded, For to deprive the Court of Iurisdiction; A motion does not stand with the intention of the Sta­tute or the dignity of the Court. For, because the Court had a general Iurisdiction, it cannot be ousted of that without pleading upon 31 Eliz. Richardson said, that this Case is upon consideration of 3 Statutes. 21 Jac. 23. & 33 H. 8. By the Statute of 21 Iac. Where the Iustices of the Peace had some power upon Informations; There Courts at Westminster are bound up. For that, he said to Henden, That he did not well understand him in his second point But he said I hold; That if that Court only from the time of the making of 21 Iac. had power; Then it is clear, that it so remains now. But if this Court had the sole power, Then the same Informations may be so either before the Iustices of the Peace, or of Oyer and Terminer. Then the Iurisdiction of this Court is ousted by 21 Iac. For the words are in that, plain; It was not the [Page 103] intention of the Statute to inlarge the power of the Iustices of Peace, but to confine those things to them. Pasc. 4 Car. Com. Banc. So that here will be the Question, whether the Iustices of the Peace at the time of the making of 21 Iac. might take Informations against Brewers up­on the Statute of 23 H. 8. before, to avoid the vexation of the Sub­ject; That he shall not be lyable to the Information at Westminster, and in the Country too. But that the Statute ought to favour; For when such persons were subject to many informations, they would be more a­fraid: So that all the question will be upon the 33 H. 8. And admit that Beer-brewers are within that Statute; yet the jurisdiction of that Court continues before the 21 Jac. Then that construction does not repeal the for­mer Statute, as it was taken by Henden. But both may stand, and the Statute of 37 H. 8. alters only the six wéeks sessions, and gives the power at the general Sessions; So the case may rest meerly upon the word Victu­allers within 33 H. 8.

First then if they are within the words, which is proved by the Statute 23 E. 3. 4 H. 4. cap. 21. which Statute confounds Victuallers, and sellers of Victuals and 21 H. 8. cap. 17. Which says precisely, that Beer-brewers and Bakers which have been Victuallers, But whether they are Victuallers within the intention of the Statute, is the doubt. They may be within some Statute of Victuallers, and not within others. For if he brew their beer unwholsomly, he may be punish'd, but not by Information. And it was well observed that the words; That they ought to put in execution certain Laws, which ought to be intended, such in which they had Iu­risdiction before. It was said that Brewers are not like to a Graster, Butcher, or Miller, for they prepare that which is made Victuals by o­thers; but beer is beer in the hands of the Brewer immediately, and nothing is done to it afterwards to make it more beer. But a Brew­er although he be a victualler in general; yet not being particularly na­med, he is not within the power of a Iustice of peace. Butcher, Fish­monger, and by the Statute of Rich. 2. Vintners are Victuallers, and are these within this Statute? Certainly not. But because that Inne­holders are named, there ought to be other words; And there are Alehouse-kéepers and Cooks; For all sellers of victuals are not within that Law, nor Brewer, nor Baker, which are particular trades of themselves. And if it had béen intended that they should have béen within the Statute, the Law would have named them. And Crompton and Lambert naming Brewers in their charge, is by the Common Law: For that, that for the unwholsomness of their Beer in their Assize, they are inquirable by presentment. But by that it does not follow, that a Iustice of peace may take information of them. Now the question is upon 33 H. 8. In gene­ralty, Brewers are Victuallers. There is one Statute which enacts, that no Mayor shall be a Victualler, And afterwards there is another Statute made, that he may be a Mayor although he was a Victualler; So it was intended that they were Victuallers, for they prepared Victuals. But yet it is not within this Statute; for it appears by the preamble, that he is to enquire of things whereof they had power before, either by the Statute, or by the Common-Law; but it was not the intention to give them other authority. They may enquire of a combination in their prizes, and such things; but not by information. Then when the Sta­tute gives power to execute, it does not give power of new things, be­cause, &c. Harvey argued to the like purpose; but said, that the Iurisdicti­on of these Courts ought to be preserved as much as may. For the true execution of the Law is in these Courts. For in the Country, if an In­former inform against his neighbour, he will compound the matter, and so the King shall lose his profit of the penal Laws. And so the Statute is made as a stawking horse to help a friend. Crook, It is true that [Page 104] Brewers shall be construed to be Victuallers secundum subjectam materi­am, Trin. 4 Car. Com. Banc. as the Statute is of shipping of victuals out of the Land. Beer shall be within that Statute. And he argued in omnibus, as before; Wherefore I doe not report it at large. But he said that the Statute of 21 Jac. was upon the matter of all penal Statutes repealed; because that it was so ill executed in the Country, And so Iudgement was given for the Plaintiff.

Howsons Case.

A Libel was against Howson the Viccar of Sturton in Nottingham­shire in the high Commission Court at York. Because that he was not resident, but lived at Doncaster, and neglected to serve his cure; And that divers times he, when the high Court visited, spoke so lowd, that he was offensive to many, and being reproved for that, he gave a scornfull answer; And that there was one Wright in the Parish, who had a seat in the Church, and that the Vicar would spit in abundance in the seat, and that when Wright and his Wife were there. And that afterwards he said with a common voice, That the Wife of Thomas Howson was as good as the wife of Wright, And that in his Sermon he made jests, and said, That Christ was laid in a Manger, because he had no money to take up a Chamber, but that was the knavery of the Inne-keeper; he being then in contention with an Inn-keeper in the Parish, and that in divine service he thrust open the door of Wrights seat, and said, that he and his wife would sit there, in disturbance of divine service. And for that a prohibition was prayed and granted; for the high Commission cannot punish non-resi­dency, nor breaking the seat in divine service: And the other were things for which he shall be bound to his good behaviour; and the complaint ought to be to the Ordinary, &c.

Hall and Blundells Case before.

DAvenport said, This Parson being presented by Simony, is disabled to this Church for ever, and cannot he presented to this Church again, although another avoidance: As it was adjudged in the Lord Windsors case. But it was said by Richardson, if he had said absque hoc, that he was in ex praesentatione of Sir George, it had béen good. Which was granted. Henden, Two exceptions had béen taken.

First, that the Incumbent does not shew what estate or interest the King had to present him, which does not need, if the King brought a Qua­re impedit, then it is a good answer to say, That he is in of his presenting. But if it be brought by a Stranger, then he ought to shew the title in his presentment. And he alleged the Statute of 25 E. 3. Which inables the Incumbent to plead by writ of the Law. 41 Eliz. There was a Qua­re Impedit brought for the Church of Danel; A presentation was pleaded by the King, without making a title, and it was admitted good. And in many cases it is more safe not to make a title.

Secondly, Because that he pleaded a presentation by the King he is dis­abled; As to that he said, that before he be convicted of Symony, he may be presented. But by Crook in Sathers Case, That if he be presen­ted before conviction, yet it is a void presentment. And it was so a­gréed by the Court, and they resolved the plea was naught, because he en­swers nothing to the Symony; for the protestation is not any Answer: Wherefore judgement was given for the Plaintiff.

Denne against Burrough.

DEnne against Burrough, alias Spark, in a prohibition it was agréed by Yelverton and Crook, the other Iustices being absent, If a man makes his will, and makes his wife Executrix, and devises the residue of his goods after debts and legacies payed to his Executrix; His wife dies before probate, that now because that the Executor had election to have them, and dies before he did so All the Goods belong to the Admi­nistrator of the first Testator, But otherwise by Henden, If there was a Legacy of a particular thing. Quaere what difference.

Newton against Sutton.

RIchard Newton and Iames Elliot against Sutton in debt, upon an Ob­ligation to perform Covenants in an Indenture. There was a Covenant that the Defendant ought to do such an act, thing, or things, as the Plaintiff or his Council learned should devise, for the better assu­rance of certain Lands by himself to the Plaintiff: and said, that a Coun­sellor advised him to have a Fine; And upon the Declaration there was a Demurrer. And upon the opening the Case Crook and Yelverton being only present agreed, That it ought to have been pleaded, that a writ of Covenant was shewn, and the tender of the note of the Fine is not suf­ficient; But the breaking of the Covenant ought to be laid after the Dedi­mus potestatem sued by the Plaintiff. And upon their advise the action dis­continued without costs.

Sacheverills Case before.

ATthowe said, that the action lies. For a Lease made by Tenant for life, is a Lease derived out of all the Estates; and not as a Lease made in Remainder. But he who made the Lease had a Reversion in possibility of a Reversion; and for that he might joyn with him who had the Inheritance in that Action. 27 H. 8. Tenant for life, and he in Reversion joyn in a Lease for life; And Tenant for life the place wa­sted; and he that had the inheritance the treble dammages; And in this Case had but a possibility of the Reversion, and yet for that pos­sibility they joyn in waste. And it is all one whether there is but a possibility of reversion, or a reversion; If Tenant for life, and he in remainder in fee make a Lease for years, they joyn in waste, and the reversion does not hinder; Because that the Lease is derived out of both. And the Lessee shall make attendance, first to one, and then to the other. 13 H. 7. 17. And if it be upon such a Lease or Cove­nant which is not collateral but goes with the Land; the Tenant for life shall have the benefit of them during his life, and the other after. But if one makes a Lease for life rendring a Rent, and grants the Rever­sion to one for life, the Remainder to another in fee; Where the lease issues out of the whole reversion, Yet the division by reversion being by the party himself, they shall joyn in an action, 22 H. 6. 24 b. Tenant in fee makes a Lease for life, and their grants the reversion to A. and B. and the Heirs of B Waste is committed, and they joyn in waste; And yet this Statute which comes to our Case is made after the Lease. And in this case, if he who had the Inheritance, his Son and the Survivor should joyn in waste. For the Law makes the division of the re­version. If Baron seised in right of his wife, and they joyn in a Lease for years, or for life, rendring a Rent, the wife dies, the Husband be­ing [...] [Page 104] [...] [Page 105] [Page 106] intitled to be Tenant by the courtesie, it is now his Lease, and he shall have the Rent. And the Book séems that he and the Heir shall have an Action of Waste; For the Law makes that division. If Tenant in fée makes a Lease for years, and takes a wife and dies, and the Feme recovers Dower; That Lease is not dispunishable with the devision by the Act of Law, and that Lease is derived out of all the Estates, and it is all one as if they had all joyned; Admitting that the words were, that the said Henry had Authority to make Leases for lives; And that that makes it as effectual and as good as if all had joyned. Then it will be agreed, that it is the Lease of all. As if I give Authority to make a Lease of my Land; It is my Lease, and ought to be made in my name: and so the Authority is good against all those. And if the Covenants had not béen collateral, Iacinth shall have benefit of them; For although they are not parties to the Lease, yet the Law makes them so. And as they shall have those benefits which grow by the Reversion, so they shall have the waste also. It will be objected, this Lease by Henry is deri­ved out of the first Fine, and the Conusees shall stand seised to that use. I agree, if it be meerly without reference to the Authority; for otherwise the Lessee shall not be attendant to the Tenant for life. As suppose at the first the limitation was to the Lessee for life, the Remainder to Iacinth, &c. rendring Rent, he in the Re­mainder shall never have the Rent. But in this Case it is other­wise.

Holmes against Chenie.

IN an Assumpsit the Plaintiff declares, that there was an account be­tween him and the Plaintiff of divers sums of mony; And it was found that the Defendant owed to the Plaintiff 3 l. And upon that he promised being required, he would pay it. And in arrest of Iudgement, it was said. Because the Plaintiff does not shew for what thing the mony was due, the Declaration was naught. To which Atthowe an­swered, That if it was upon an indebitatus Assumpsit generally, that the Action will not lye, although there had been many Presidents ante hac to the contrary. But in Case you will give a years day to pay, upon which the Defendant assumes; the Action will lye. But there is a difference upon that and our Case put. That one was indebted upon a reall contract, and other things, and appears by account, that upon all Debts 40 l. is due, &c. Now by that the promise is upon the Account, and that had made all certain. Yelverton, There cannot be a debt upon an Insimul computassir, without shewing of what nature the Debts were. Richardson, An account cannot be of a thing certain. Debt upon an Obligation is and rent certain; And if those with other things come in Account, and upon that an Action is brought, what shall be pleaded by the party upon the specialty? Crook, Debt certain does not lye in Account. But suppose that part of the Ob­ligation is payed; And afterwards by an Account it appears what is payed, and what not, and then he promises to pay the arrerages, which is proved, as he ought: For although Debt implies a promise, yet an Account not. Now when things are truly in certainty he may have an Action upon a general Insimul compurassit. For the Law avoids prolixity of the Declaration, which would be infinite, if all petit Debts were named. And he agreed, that the difference put by Atthowe in the Case of an Action. &c. upon an Indebitat. Assump. Richardson and Yel­verton also agreed. Atthowe, It is sufficient in an Action of the Case upon an Account, to prove the Account, without shewing what the Debt was. And he cited 3 H. 4. That a Debt certain with other things in­certain may lye in Account, as in our Case there may be double charge [Page 107] prevented by a verment; Although all the things in special, by which the debts did arise shall not be shewn, yet he ought to shew of what nature the debts were, as upon contracts so much, or upon mutat. so much, &c. and so infiniteness shall be avoided, &c. Moyle Pregnotary; That 22 Jac. That a general indebitatus is now in peace: For it was ruled by all the Iustices in the Exchequer Chamber to be naught. Et adjournatur.

Walsingham and Stones Case.

IT was said by Huttnn in this case, That a Parishioner compounding for his tithes for his life, was naught without déed. And it was said by Yelverton, That the use in the Kings Bench is; That if a Defendant in a prohibition dies, his Executors may procéed in the spiritual Court. And it may be a rule for the Iudges in the Ecclesiastical Court to pro­céed also. And then the Plaintiff may if he will have a new prohibition against the Executors, &c.

Binge and Hodges.

IN Binge and Hodges case, one of the Iurors was named, Richard Smith in all the process against the Iurors; And after the tryal, Ward moved in arrest of Iudgement, for that, that Rise Smith, was sworn upon the tryal, and not Richard. And by the Court he cannot make such an averment against a Record: For then an Affidavit overthrowes a tryal. And that which is aided by 21 Jac. cap. 13. is when a Iuror is named by one name in one place of the of the Record, and by another name in an other place of the record; There now it shall be aided upon this Statute by aver­ment, that he is the same man, &c.

Bristowes Case.

IN the case of one Bristowe, The sute was in the Court of Requests, for that that the Plaintiff and the Father of the Defendant had made such an agréement to pay money, &c. And it was moved for a prohibition. And by the Court it was granted; for that that a mutual agreement is a sufficient consideration upon which an action upon the case will lie. And that notwithstanding that there was a decrée in the Court of Requests against the Defendant there; And for that the sute is against the heir, which is against the rule of Law, that the heir shall be charged in the place of his father; Whatsoever agréement the father makes, is nothing to the purpose to charge the heir, although he had assets, either by Law or equi­ty: And the Court of Equity ought to give relief in such cases. For this agreement, although it be in writing, being without Seal, It is not but an Ecclesiastical agreement.

Mrs. Peeles Case.

MRs. Peele moved for a prohibition to the High Commissioners. King Charles 15 Feb. anno primo regni sui granted a Commission to divers to enquire Dyer and Terminer, of all incests, adulteries, and misbehaviours, and all other crimes punishable by the Ecclesiastical Law, Afterwards there were divers articles exhibited to them against the Lady Purbeck for adultery, and Mrs Peele, and others; That she in Annis Do­mini 1621, 1922, 1623, or 1624. in some one or all of these was an Abet­tor of this Adultery. For which she was sentenced to pay 200 l. &c. and that she made a poenitential acknowledgement of her offence, and farther that she shall be imprisoned untill she found security for the perfor­mance of that order. And upon the Articles and the sentence, the gene­ral pardon of 21 Iac. was pleaded. Henden prayed a prohibition, and agreed that they might aver that the whole offence was committed be­fore [Page 108] the pardon. And he cited a case in the Common Bench, 6 Iac. rot. 142. Longdale was charged with adultery, and the charge was laid after the pardon. Yet that charge did not so conclude him, but that he might aver that to be before, to have the benefit of the pardon. It was urged on the other side, that such averments would overthrow infinite senten­ces given before. Bramston, It is pretended to be done after, for the a­verment is not but a monstrans of the truth of the matter, and the Sub­ject shall never have benefit of the pardon without such averments. At­thowe, it appears that there was an offence, and it was proved also. And if you allow a prohibition, you overthrow all sentences there. And also a prohibition ought not to be grounded upon several matters, but one only. Yelverton said that a prohibition may be grounded upon twenty matters. Crook, Admitting that all the offence was committed after the pardon, yet you may suggest it to be before. Henden and Bramston, That so it was Pas. 50 Eliz. In one Prat and Husseys Ease; One that had a benefice took another, but was not inducted. Yet that was the ir­regularity upon which he was deprived, and a prohibition was prayed upon the general pardon; And it was concluded, That if the libel con­tained, that the irregularity was before any pardon; and it appears also, that it continued after, yet a prohibition shall be granted. Crook, the offence is layed 1621, 1622, 1623, &c. in one or every of them. Now for a pro­hibition, there are two clauses in our case. Although it be that the offence was before, and part after pardon, yet we ought to grant a prohibition; for that which was before is involved. 5 Iac. Conveys case. He and his wife after the death of Sir Blunt, were sued before the high Com­missioners, for that that his wife committed Adultery with Sir Richard Blunt, and he himself was the Pander. And a prohibition was granted for two causes: The one, for that Adultery was not inquirable there, the other, because it was pardoned. And although the word Adultery be in their Commission, yet that does not give them Iurisdiction. They cannot meddle with Alimony was one Condiths case upon the Canons in 1 Iac. Which gives to the Parson jurisdiction to appoint the Clark of the Church: There was a custom there that the Parish should appoint it; and several Clarks being appointed, they set several Psalmes in the Church, to the disturbance of it. And a prohibition was granted to the high Commissioners for medling with it. Richardson objected divers things with much earnestness, but so apparently contrary to Law, that I have omitted it. Yelverton said, she ought not to put in security to obey the sentence. For if it be averred that all was before the pardon, then there was no cause of sentence, and if no sentence, then the prohibition ought to be for all. Crook, The sentence is to pay a fine, and to make submission, and to be imprisoned, until she found security to obey the sentence; That is void. Richardson said, That they had not any means to make the party to pay the fine, and if she would pay it presently she might be discharged. But by the other Iustices the High Commissioners, cannot demand the sine; But they may Estreat it into the Exchequer. At another day it was said, Sir Wil. Chamcer before the high Commissioners was by sentence fined and imprisoned, and by the opinion of all the Iud­ges of England, They may proceed by fine and imprisonment; and his case was for Adultery. Hutton 44 Eliz. It was resolved that they cannot impose a fine, but for Heresies, Schisms, and Errours, &c. Richardson, The words of the Statute are, that the high Commissioners may pro­ceed according to the tenour and effect of the Letters Patents of the King▪ Yelverton, The sentence is the fine and the penance, and there is the end of the sentence; and when it is said, she shall be imprisoned un­til, &c. That is no part of the sentence, If it was that she should pay a fine, do pennance, and should be imprisoned three months; Then all [Page 109] should be the Sentence. Richardson said, that they may procéed a­gainst other things than Heresies, and Schismes, upon that Statute de primo. For there are the words Abuses, Contempts, Offences, and Enormities. Hutton, The words in that Statute shall have expo­sition according to the meaning of the first intent. It was that they had Authority to punish the Bishops and Prelates for Errors and Schisms, and the change of Religion. For that that they did not regard the power of the Ordinary. But they had incroached many other things. And if those words include any thing, they might punish anything whereof the Gc­clesiastical Court had Authority; As working upon Saints daies. But there was a Case of one that was sentenced there for such a Cause. And the Fine estreated. And upon Argument in the Exchequer their pro­ceedings adjudged void. Richardson, The word Enormity contains a thing of lesser nature; For quicquid est contra regulam et normam Juris is Enormity. And therefore in Trespass, quare clausum fregit, et alia enormia ei intulit. But Yelverton, The word ought to be intended of a grand offence; For so in common acceptance it imports. Harvey, The Fine being pardoned, all is pardoned. Richardson said, that they should pro­céed by excommunication and not by fine and imprisonment. No more at this time was said in this Case.

Humlocks Case.

A Man makes a Lease for 21 years reserving 20 l. rent per annum, pay­able at two daies, and if he fayl of payment, that it shall be lawfull to the Lessor to enter. At the day of payment the Lessor came and de­manded the Rent by these words, I demand my half years rent. And it was moved by Atthowe, If that demand was sufficient for the Les­sor. Hutton and Yelverton seemed that it was sufficient. For the thing that he demanded is enough certain and known. Crook on the contrary. For although it appears by the circumstances, how much of the Rent he demanded, Yet the words are not so plain as they ought to be. For if a man makes a Lease for years, reserving such a Rent as the antient Farmor was wont to pay from time to time to this day. When the Lessor comes upon the Land, and says to the Lessee, Pay me my Rent: that is not sufficient or good: because it is not cer­tain in Terms; And yet it appears by the circumstances. And when a man pleads a demand, He shall shew the Lease, and the Rent reser­ved, and shall say, That he demanded redditum praedictum. And as I remember it was adjudged very lately; That such a Demand shall be certain. Hutton, I hold a difference between such things which lye in notice of the person to whom the demand is made, and where not. For in a praecipe quod reddat; if there be a recovery by default, and the Te­nant brings a desceit; and by examination of the Summoners it appears, That they came to the Land, and summoned him in the Land, but they do not shew to him at what day he ought to appear. So the Lessee knows well enough that the Rent ought to be paid: for it is certain by the Lease, to which he is party and privy. But Crook said in the Case that Hutton put. If the Summoners had read the Writ upon the Land, and had summoned him to appear at a day comprised in the Writ; It had been certain enough. And so in this Case, if he had read the Indenture upon the Land, and after demanded the Rent, as afore it had been. Without question it appears to me it should be good enough. And so in our Case also.

Leech against Watkins.

IN Debt upon an Obligation. The Condition was, that if the Obli­gor and his Heirs did, or suffered to be done, every such assurance as the Council of the Obligee should devise, when he should be thereunto re­quired. And it was shewn by Ward, That the Obligee made such a request (scil.) That the Obligor and his wife should levy a Fine; If that Request were sufficient was the Question. Hutton, I think that the Request is not sufficient; Because it is not pursuant according to the Obligation. Richardson, I think although the request be void for the wife, and that she is not bound to make an assurance, Yet the Obligor is bound to do it. For against him the Request is good enough.

Thompson against Thompson.

IT was said by Hutton, In debt against Executors, if the Plaintiff had Iudgement against the Defendant, and sued a levare fac. de bonis Te­statoris. If the Sheriff upon that return a Devastavit; the better form is upon that, to award a scire fac. against the Executor before, that a fieri fac. shall issue of their own goods. For that writ of Execution is warranted by the first Iudgement, which was but of the Goods of the de­ceased. But now if there be issued a fieri fac. de bonis testat. si habuerint, et si devastaverint de bonis propriis, Then I will agree that upon that shall issue a Capias against the Executors ad satisfacieudum.

Dixson and his Wife against Blyth.

IN this Case a Question was demanded by Atthowe; If a man sei­sed in right of his wife, leases for life, the Remainder over, in Fee; And afterwards he and his wife recover the same Land in a Writ of En­try in the post against the Lessee for life; If the Wife by that shall be remitted. Hutton seemed that she shall be remitted, As well as where a Feoffment is made to Baron and Feme, For that Recovery counter­vails a Feoffment, and no laches shall be adjudged in the Wife; For the purchase of the Writ shall be adjudged the Act of the Husband only, and not the Act of the Wife. But it is good to be advised of that, for peradventure she shall be estopped by the Record.

Bromefields Case.

IT was agreed by all the Iustices, That if Tenant in tayl by Inden­ture, upon consideration of mariage, covenant with an other that cer­tain persons should be seised to his use for term of his life, and after his decease to the use of his Son and Heir apparent; That by that Covenant there is not any use changed unless only during the life of Tenant in tayl.

Nortons Case, before.

FInch Recorder, said de comuni jure for Estovers burnt in an house, tithes ought not to be paid; by the Common law there was not any tithes paid for wood: And although the Statute of 25 E. 3. gives a prohi­bition [Page 111] for timber, yet Underwoods were discharged of tithes. See Do­ctor and Student 171. It is express that Estovers are not tithable, be­cause they are not renewing every year, and it is parcel of the Inheri­tance, for to destroy all the underwoods is waste. And there is another case put, where tithes of wood had not by the custom been paid, neither ought they to be paid in law or conscience: But that is not to be intended, the conscience of every particular man. Dawleys Case was resolved for the Wilde of Sussex, and Michaelmas 13 Iac. Banc. Roy. in the case of Porter and Dike for the Wilde of Kent of the same prescription, resol­ved to he good; And so is the common experience that a whole County may prescribe so. And the reason is for that, that by the Common Law it was not due, but by the consideration of Winchelsey Linwood 104. It was ordained to be paid, For then the prelates imputed a great pesti­lence that then was, for the negligence of paying tithes, and appointed tithes of wood. And the Commons were desirous to have the Statute of silva. &c. otherwise explained than the Clergy declares it, For they say that they ought not to pay tithes of any wood that is of the growth of 10 years. Hutton, Wood is tithable in their nature, and then there may be a custom to discharge them. And the case of Harthpenny cannot be answered; for if he sues for the penny, a prohibition shall not be gran­ted, quod concessum fuit. Crook and Yelverton. But of things not titha­ble, tithes of them cannot be sued, without alleging a custom. Crooke, It is known that Harthpenny is good by prescription: This Case is when there is not land belonging to the house, so that the Parson is not answe­red for his tithes another way. But when there are ten servants kept for the maintaining it, Then by the Law of the land it appears, that tithe ought not to be paid; although custom had been alleged it is nothing to the purpose, as if a custom is alleged to pay 4 d. for every acre in dis­charge of tithes, and the verdict finds 3 d. no consultation shall be granted. And so for wood to fence the ground, or dry cattel to manure the ground: Although custom be alleged there in discharge of it, and found against the party, yet no consultation shall be granted. Hutton, the her­bage of barren Cattel is tithable, because there is a custom which dis­charges those which are for the Cart. And he said that the Custom only makes that legem terrae. And he cited Doctor Graunts Case. He libels for tithe of an house, and the party brought a prohibition, and alleged mo­dus decimandi, &c. And it was alleged in arrest of Iudgement, as houses were not tithable de communi jure, and yet a consultation was granted. And there Cook put this case, which I do not remember in the printed book, that one libelled for tithes of trees, and custom alleged, and there was found no such custom in discharge; yet it was ruled that no custom was granted.

Browne against Hancocke.

BRowne brought an action upon the case, upon an assumpsit against Hancocke, and declares, that whereas the 10. of May, 16 Iac. there were some controversies between Charls Nichols, and the Brother of the Defendant, concerning arrerages of rent, and it was desired that Nichols would part with his term. And 19 l. and a cloak and a gelding were offered to the lessee for his term, which he refused. Afterwards the Defendant in consideration that the Plaintiff would labour with Charles Nichols to take the offer, and make an end between them; Assumed, that whatsoe­ver the Plaintiff undertook for the Defendant, he would perform, and also save him harmlesse for any thing that he should doe in that businesse: and then he said that he procured Charles Nichols to assign his term, and to accept the cloak and gelding, which the Defendant did not perform, and [Page 112] allso that the Plaintiff covenanted with Charles Nichols to perform the a­greement, and obliged himself to that in 50 l. And that afterwards Charles Nichols filed a bill of debt for the money, whereupon he compel­led him to pay it, and upon non assumpsit pleaded it was found for the Plaintiff, and three things were moved in arrest of Iudgement, which Serjeant Barkely answered. There was a covenant to enter into an obli­gation at Michaelmas, and the Plaintiff shews that he entred before; So he does not perform the consideration, which he conceived to be a good performance. For if a man be bound to doe an act, or pay money at Michaelmas, a payment before is good. H. 7. 17. 2. pasc. It is shewn that an action of Covenant was brought after; And they say, that upon his shewing covenant does not lie, but debt: but he said, that the Plaintiff had his election here to have debt or covenant. As in the Lord Cromwels case, the words covenanted provided and agreed, give advantage of a condition or covenant. If a covenant had been sor 30 l. then debt only lyes; But here it is to perform an agreement. Thirdly that it appears within the declaration that the action of the case was 6 years before the action brought; And so by the Statute of 21. Jac. the action does not lye. I agree if the cause was 6 years before; yet the breach was within the 6 years, and that is the cause of action. 6. rep. 43. In a covenant, there is the deed, and the breach of the covenant, and that is the cause of the act­ion; And therefore being matter in Deed, an accord with satisfacti­on is a good plea to it. 13. E. 4. Attaint is grounded upon matter of re­cord, but the false oath is the cause of it. For that there also, accord is a good plea; So in our case, the non performance by default was not at the time limitted, which was before the 6 years: but no action was brought against the Plaintiff, untill within the six years; And then he is not dam­nifyed untill within the six years 5 Rep. 24. Richardson. For the two first exceptions he agreed with Barkley, as to the third, he said, that there can be no action before the breach of the promise, or covenant; But the breach here is before the six years; for the non performance of the agree­ment is a breach and a breach is a damnificationn. In one Boughtons case, the non payment is a damnification But all the question here was whether that ought to be pleaded but I conceive that it need not; for by the Statute-law the action is taken away. And it being a general law, the court ought ex officio to taken notice of it. For in that after verdict, if it appears that there is no cause of action, although the verdict be found for the Plaintiff, he shall never have Iudgement. And upon the matter that latches in time amounts to a release in law, & the proviso cannot ayd you. For every man shall be in­tended without those disabilities: for that, that he would shew that he would have advantage of it. And Crook of the same opinion for the reasons given before, and said, that although the Statute took away the Common law; yet it is good law, and done for the ease of the subject, and for that shall be favoured, as the Statute of limitations in all cases. But he said, the non performance was not a damnification before the acti­on brought. As if I be bound as for surety for A. who is bound to save me harmlesse; Although he does not pay it at the day, There is not a breach before the arrest or Iudgement. For by the Iudgement, the lands and goods are liable; But for the arrest, his body is troubled, for that now the Scriveners put in such obligations that they save harmlesse the party, and pay the money at the day; But for the other matters, in all he agreed, and cited Richardson and Burroughs Case. Where a payment be­fore the day, was adjudged a payment at the day. Yelverton, That is not found that there is any sufficient notice given to the Defendant by the Plaintiff of the agreement made, which he ought to have. And he a­gréed in omnibus with Richardson, and said, that Scriveners use things, ex abundanti. Richardson, It is said, habuit notitiam in the Declaration, [Page 113] but does not say by whom. Yet after verdict it shall be intended a good notice. And although that Nichols had given the notice, it is sufficient. If there be a Lease for years upon condition, that he doe not assign, the other accepts the rent of the Afsignee before notice, He shall not be bound by that acceptance before notice. But if notice may be proved ei­ther by the Plaintiff, or by any, although it be by a meer stranger; It is sufficient. Yelverton denied that, for he said; That none but privies can give the notice of it, as the case is. Et adjournatur.

Denne and Sparks Case, before.

RIchardson, If a will be of lands and goods, and that was the occasion of this will: the revocation is only tryable at the Common Law; But when the will is of goods only, the occasion of it shall be tryed only in the Spiritual Court; For it is incident to the probate of the will, quod fuit concessum; And he said, that in the case before, if the will be not re­voked, the devise is good, at the time, and the administration shall be granted as of his goods; for the Law will not change the property of the residue, after debts and legacies paid. Crooke, The case here is that the Testator makes his will of his lands and goods, and devises the residue of his goods, ut supra, to his wise his Executrix, who dies before pro­bate. Denne sues to be administrator, as the goods of the first Testator; and alleges revocation; which because that his Proctor did not goe and swear that in fide Magistri, sentence was given against him. Vpon that he appeals, in which there was the same Obligation, and affirmed by the Oath of his Proctor; Yet sentence was given against him; And a prohibition ought to be granted for three reasons.

First, For that the Will is of Lands and Goods, and the occasion of that tryable here.

Secondly, they offer injustice in giving the allegation.

Thirdly, The Wife here dying before the probate, the administration ought to be granted as of the goods of the Testator, and not as of the wife. And also they here would inforce Denne, if he had the administration, to take it cum testamento annex.; Which shall be an admittance by him, that there was not any revocation. Richardson, for the first reason he a­gréed, that the revocation shall be tryed by the common law. But the goods here are only in question, and all the usage and practice is, that a prohibition shall be granted, with a quoad the lands. For the second, That they will not allow the allegation: If they will not pursue their rules and order of Iustice; That is not a cause of a Prohibition, but ap­peal for the third. It is fit that there shall be an election if debts and Legacies are owing. But it doth not appear here that there are any debts or Legacies to be paid; but after Harvey agréed with Crook and Yelverton, And a prohibition was granted.

Holmes against Chime, before.

PResidents were shewn, that such actions were brought, scil. Hill. 3. Car. Elwin against Atkins, and Hill. 1. Car. Cophin against Cophin. both in this Court. And Richardson said, although the book makes a doubt of it; yet his opinion was that the action would lie; For it would be a miserable thing that all things should be shewed precisely; And so Iudgement was given for the Plaintiff.

Port against Yates.

IN a replevin the case was, The Defendant was known as Bayliff to Thomas Kett, and the land was Copyhold land. And 10 Maii. 3 Car. When it was granted by the Lord of the Mannor to the wife of Thomas Kett. The Plaintiff confesses that the Land is Copyhold land, but that the Lord granted, 1 Iacob. to Robert Salter in Fée, who had two daugh­ters; the wife of the Plaintiff, and the wife of Thomas Kett, and dyed seised, and that the land descended to them; upon which they demurred. Berkely, The first grant shews that the Defendant was in of all, and the descent to the wife, but for the moyety, whereupon the grant of the whole is not traversed nor confessed and avoided. And he cited Dyer 171. Pl. 8. to be the same case in effect, and so ruled. But Hutton Har­vey and Crooke held what difference there was betwéen this case, and the case in question. Hutton, the descent here which is pleaded, makes the second grant void. But by Richardson, although that it be avoided, Yet it is not confessed. And afterwards for that that upon the whole truth of the matter disclosed, It appears that a Copartener cannot di­strein the lands of another damage feasant, and the matter of form in pleading ought not to be regarded by the Iudges, upon the Statute of 21 Eliz. cap. 5. Iudgement was given for the Plaintiff.

Cockett against Delayhay.

COcket brought an action upon the case in Bristow against Delahay for these words, Cockett hath forged a deed, and because of that came out of his own Country And the Defendant justifies that he did forge a Déed in Middlesex of lands in Hartfordshire, without that that he spoke in Bri­stowe. Richardson said, that that plea was naught, either with traverse, or without the Traverse. Whereupon Henden altered his plea, (scil.) That he forged a déed of those lands at South Mimms in Middlesex, where the lands lie. By vertue of which he justified the words at Bristowe Richardson, It is a good plea; for now the other can plead nothing, but de injuria sua propria. And then the tryal shall be in Middlesex. And by Crooke, if there be a Demurrer, there shall be a writ of inquiry of dama­ges issue to Bristowe.

Issue.

IF the issue be not made up, it may be tryed by Proviso. But if the Plaintiff neglect that, there may be called a non-sute upon the roll, for there it shall be discontinued, quod nota.

Page against Tayler.

PAge brought an Action against Tayler as Receiver, &c. which was found against him, &c. And Iudgement was given that he ac­counted, and before the Auditors he pleaded that before the Action brought, there was an arbirement, that he should pay to the Plaintiff 11 l. in satisfaction of all accounts and demands, which he had performed. And it was ruled by the whole Court, that that was not a good plea, in discharge before Auditors, but a plea in bar of the account. And by Crooke, an accord with satisfaction may be pleaded in Bar, not in dis­charge. Which the Court seemed to agree. And by Crooke, If the Defendant had any other matter to shew on the Declaration before Au­ditors, it might be shewn, &c. Richardson, Although that the Arbitra­ment [Page 115] was made, after the action brought, it cannot now be pleaded but he ought to have his Andita querela.

Manninghams case.

In Manninghams case. The doubt was this, A condition of an obliga­tion made to Manningham, was that he should pay after his death to his Executors after his death 10 l. per annum to the use of the Children of Manningham. And Manningham dyed, and there was no Executor, whether the payment should be to the Administrator, and so the obligati­on forfeited. Berkly said, that it ought to be payed to the Administrator: for an Executor includes an Administrator; And this money is as assets, if not to satisfie debts, yet to perform this case which is illsgal. 5 H. 7. 12. 26 H. 8. 7. And also if a man limit a thing to be done to his Execu­tors, that may be done to his Administrators. So that the nominating of the Executor, is not but an expresse intention to whom the money shall be paid ( viz. to him who presents his person. And he compares that to the case of 46. E. 3. 18. A rent upon a condition reserved to the Execu­tors, goes to the Administrators. 15 E. 4. 14. Dy. 309. Cranmers case. Where it seemed that if a lease be made to one for life, and after to his Executors for years; that the Executors shall not have the term as as­sets, 32. E. 3. A quid juris clamat Fitzharb. A Lease for life, to his Exe­cutors for years in remainder, Lessee for life atturns saving the term; which proves that the Executor had that as privy, not as strangers. And he cited Chapmans and Daltons case, the principall. So that the Infant and the Executors shall have the money in right of the testator: and therefore it goes to the Administrator.

Secondly The Executor extends to an administrator. 8. rep. 135. there kindes of Executors: and an Administrator is an Excecutor datinus. 3 H. 6. An action is brought against divers executors by the Statute: when some appears upon the distresse, it answers, that extends to an Admini­strator although the Statute names only Executors.

Thirdly, It does not appear here that Manningham made not Executors, for it may be that he made Executors, and that they dyed intestate or be­fore probate. And he cited 18. H. 8. And Shelleyes case 1. rep. and 33. Eliz. If Executors dye before probate. It is in Law a dying intestate, Richardson. Here is but meer trust; and as it hath been said; It doth not appear whether he had made Executors or not. For if he dye, and makes Executors, and they dye before probate, or refuse, he dyes ab in­testato, but not intestate; Nor shall it be questioned, if the obligation had been to pay to Manningham only, or to him and his Executors. But it goes to the administrators. But because that he had specially put his Executor; Whether he ought to have the forfeiture of the obligation, or whether he ought to have the sum to be annually payed to the Admini­strator. Berkley, the letters of administration make mention, that he dyed ab intestaro. Atthow, That is matter de hors, but by the declaration it is clear that he dyed intestate. And the action brought by Administrator who who had not any cause of action. Secondly, admitt that there was an Executor, and the money payed to him; that is not assets; For it is not the money of Manningham, but taken by him to pay to another. And Richardson said: If the party had dyed intestate, by the Common law, the Administrator is Executor, and all things that were to be performed by the Executor, are to be performed by the Administrator. There was an obligation to A. to pay to the Executors of B. It shall be more doub­ted there: whether it shall be payed to the Administrator. But the obli­gation here is to Manningham himself. Now his Executors comprehend Administrators: And Needhams case is plain in that. And the mention [Page 116] was that the money shall be payed to these that succeed him in his perso­nal Estate. Now it was not the intent that it should be lost if he dyed without Executors. Crook an action of debt being brought against an Executor upon an obligation; plene administravit is pleaded. Then Ad­ministrator being included in the word Executor, there is a good cause of Action. And the Court seemed to be of the same opinion. Sed adjour­natur.

Fowlers Case.

FOwler libels for tithes, and a Prohibition was prayed upon a sug­gestion that he came to the Church by Symony. By the Court, a Prohibition ought to be granted upon a surmise only, that he came to the Church by Symony. Then Henden shewed, That it was found by ver­dict in the Kings Bench, That he came in by Symony. And upon that verdict there was a decree in the Court of Wards accordingly. And then the Court inclined to grant a Prohibition. And the Case here was, That Fowler being convicted of Symony, the King presents Glapthorn, who was admitted, instituted, and inducted; And afterwards he takes another benefice above the value of 8 l. by which the other was void. Yet by the assent of the Lord Windsor Patron, Fowler conti­nued possession. And by Richardson, He cannot be any way removed un­till laps incurre.

Strange against Atthowe.

SIr Hamond Strange brought trespass against Christopher Atthowe. And the trespass was done 8 years after, but with a continuando unto the time limited by the Statute 21 Iac. And by Richardson the action is toll'd by the Statute. For the continuation within the time; makes the Trespass within the time; And it is not like the Case in Dyer, 119 pl. 17. In the turning of a Cock; It was adjudged a new diversion, for it was a new action. But here is not a new act done. Richardson, the Statute of 21 Iac. may be well pleaded in this discharge of that action. And you ought to commence for all not done after the time of the limitation within the Statute; otherwise the Statute should be overthrowed; For by that means the continando may punish a trespass done 20 years past, with the alleging of a continuando. Hutton & Crook of the same opinion. Yelverton on the contrary, who said, that it was not material if the Statute was o­verthrown. But the other Iustices said, it was a good Statute. Crook, Suppose that you cannot prove your continuando, for in trespass it is not requisite indéed to prove it; For it is only put for increase of damages. But Hitcham said, Now by the Statute the continuando shall be proved. Then by Richardson, Hutton, and Crook. You will make a fraction That the tres­pass shall be partly upon the Statute, and partly upon the Common law.

It was ruled again according to that before; That when a Will was proved in the Prerogative Court; The Executor or Administrator may be cited out of [...]e Diocess where he lives to the Prerogative Court, Because that the Will cannot be executed a libi than where it was proved. And so that is out of the Statute of 23 H. 8. But by Richardson, Hut­ton, and Yelverton, Where a Will is proved in the Prerogative Court; That it shall be proved in the proper Diocess also of the Executor, then it may be executed there. Richardson said, The privilege for them of the up­per House continued 30 daies after the Session; where the Parliament of the lower House but for 20 daies. And that the privilege extended to Person, Goods and Lands.

Nortons Case. Mich. 4. Car. Com. Banc.

IN Nortons Case before; A Consultation was granted, because of a Custome alleged, and found for the party. But by Crook and Yelver­ton, There are divers Presidents, where in that Case a Prohibition was granted, without alleging a Custome.

Allen against Westby before.

IT was ruled, That the Defendant shall not have costs against the In­former, they being found against the Informer. And Brownlow af­firmed that the course of the Court is, That upon the Statute the De­fendant shall never have costs against the Informer; Although Binge cited a President to the contrary.

Gosse against Skipton.

IN the Court of Requests, Gosse borrowed mony of the Testator of Skipton, and gave a term whereof he was possessed, for five years, to him for security, by Indenture with a Proviso of redemption; And shews further in his Bill, that there was a verbal Agréement between them; That if the mony was not paid at the day, the Testator should take the profits growing upon the Land; And if the profits amoun­ted to the value of the sum of mony, that then he shall have his term a­again. And that he reaped the profits accordingly, which well satisfied him, and yet he continued possession of the term; Which afterwards came to Skipton, and is now expired. And so he prayed that the Defen­dant might account for the profits. And the Defendant moved for a Pro­hibition. Richardson, Although the trust is contrary to the Indenture, yet such an averment is good, notwithstanding the Proviso. But for that that the Executor shall account to none but the King; and the years are now spent. And although he occupied the same, yet the profits shall be Assets. And if it shal be received in the Court of Equity, there shall be a Devastavit against the Executor. And by the whole Court a Prohi­bition was granted.

Rolls against How.

A Man arrested upon a Latitat makes an Obligation to the Sheriff with a Condition to appear. And the Question was, if it be good. For he may make his appearance by his Attorny. Although Hutton thought it was not good. For the Law intends that he is in person when he is in custodia Marescall. And Brownlow said, it was adjudged accord­ingly, when Mr. Tomkins Bayliff of the liberty of St. Andrew took an Obligation in his own name, for a personal appearance upon a Latitat. At an other day Atthowe moved, that the Bond was void. For the Sta­tute is general that he shall take a Bond for his appearance. And now the Sheriff here had taken a Bond for his personal appearance. And there he might answer to the Action by his Attorney. But that he ought alwaies to be in custodia Marescal. which is meant in proper person, and he ought [Page 118] to put in bayl which is good enough. It was ruled, that Iudgement should be entred for the Plaintiff, if cause was not shewed within two 2 daies. And Bents Case and Hoptons were adjudged accordingly. See 30 Eliz. rot. 126. In the Case of a Sheriff there.

Wroth against Harvey.

DOwer was brought against an Infant, and upon default Iudgment was given against the Infant, and there was something assigned for error, but notwithstanding Iudgement was affirmed as to that, But af­terwards an other errour was assigned in the record; For that that the entry is obtulit se per Clerk atturnatum suum, and names him not: And so was the Case, where such an one, by Higgius atturnatum suum obtulit se; And for that cause naught. And Dyer 93. Because in waste the obtulit is per atturnatum suum, and names him; it was naught. But Richardson said upon the first obtulit se, it is not requisite to name the Attourney, but upon the second.

Barleys Case.

NOte, It was said by Richardson, If a man says in his sickness, I give 20 l. to I. S. and does not make Executors; Yet I. S. shall re­cover against him who has the goods. Crook said that, 3 H. 4. That a devise is void, if a Legacy be given, and no Executors made.

Winchcombe against Shepard.

IN an action of the case for cutting of the bank of the River, of Charwell, by which the water run forth and drowned his meadows. The Defen­dant pleads in bar, that one Brooke was seised of a Mill called Gammons Mill, and that there is a certain rivulet betwéen Gamors Mill aforesaid, and Clyftons: And that he and those whose Estate he had, in Gamons Mill, have used time out of mind, &c. as often as the said Gammons mill should be ruinous, to cut the aforesaid bancks of the aforesaid rivulet in which the Trespass aforesaid is supposed to be done, and to let out the water in old Charwell to repair the mill. And he shews that the mill was ruinous, and that he cut, as aforesaid, to repair; and the water run out of the said old Charwell, and so justifies. And there was an exception ta­ken by Atthow to this bar. For that that he does not answer nor justi­fies to the place where the Trespass was done: For he said that there is quidem Rivulus, which is always to be intended of a strange thing. As 6 E. 6. Dyer 70. In Trespasse the Defendant said, quod quidam I. S. granted the part to him; and afterwards said again, quod quidam I. S. granted. And because that he conveys two grants to himself by two per­sons, for so the second quidam shall be intended: And it shas ruled to be naught. See the 33 and 34 Eliz. Debt by Lowe against Wotton. The Defendant pleads that a long time after the Obligation was made by himself and Bassett, quod quidam Iohannes Bassett acknowledged a Sta­tute to the Obligor; And because that he says quidam, which shall be intended a strange person, it was no plea. And the debt upon the Obligati­on is gon by the acknowleging the Statute. See 9 H. 6. 16, 17. In a quare impedit for the King, of the Chauntry of St. Tho. and alleges a presentation. The Defendant says, that there is a Chapel of St. Tho­mas in the same Village, and that the Defendant and all his Ancestors have béen Patrons of the same Church. It was held no plea, for there is no answer to the title made by the King; For it shall be intended of a­nother Chapel. But here because that he said virtute cujus, he cut the [Page 119] aforesaid banks of the rivulet aforesaid, in quo transgressio praedict. fieri supponitur. A sufficient answer was made to the same place; so ruled by the opinion of all the Iustices. But it was objected, that this barre was not good upon the matter; For although he might let it out, yet he ought not to drown any ground. But because that the fault was in the banks of old Charwell, He is not punishable for that lawfull Act, which he had done. Otherwise if he had not prescription, 6 E. 4, 6. If I have a pond, I cannot so let it out that it shall surround the ground of my neighbour. Another exception was taken for not pursuing the prescrip­tion; For he does not shew that the place, where the cutting was alle­ged, was between them two mills, whereof he makes mention; Yet ad­judged contra querentem. And afterwards, this judgement was rever­sed by errour; because he had made his prescription local, and that ought to be pursued: But for the overflowing after the letting out, It was by all held, that it is not punishable.

Ienkins's Case.

THomas Ienkins as heir to Iohn Ienkins brought errour upon a Iudge­ment, given upon an indictment upon the Statute of 1 Eliz. of Re­cusancy, and assigns this error; For that the Indictment was contra formam Statut. edit. 23 Ian. 1 Eliz. Where the Parliament began 25 Ian. And for that it was held erroneous. 3 Eliz. Dyer 203. Other matter was alleged, for that that the Statute is, that it shall be taken before Iustices of the Peace, or Gaol delivery. The Indictment was before the one, and the conviction before another: But that was thought a small matter. And it was beld by the Iustices that the heir might have a writ of Error upon such a Iudgement. As upon execution of a Statute, after the death of his father. It was objected that he brought error as heir, but does not shew how he is heir. But nothing is answered to that.

Keene against Cox.

IN an action upon the case brought by Keene, for saying, He is falsly forsworn before the Iustices of Assize between A. and B. Ad­judged that it lies.

Mercer & Ux. against Cardock & Ux.

MErcer & Ux. brought debt against Cardock and his Wife as Admi­nistrators of one Tox. And upon plene administr. pleaded: The Plaintiff replies, that they had assetts to satisfie the aforesaid Defen­dant, (whereas it should have been Plaintiff.) And because that it was but the misprision of the Clark, It was held that it might be amended, the record now being brought before them by errour.

Calthrop against Allen.

IN Debt the demand was of 19 l. 17 s. and declares upon five several contracts, and shews the certainty upon every of them, which being cast up amounted to 20 s. more than was demanded. And because that he does not shew how he was satisfied of the remnant, It was held, quod nihil cap.

Goodridges Case.

AN Indictment of Murder was brought against Goodridge, and this exception was taken, because that the Indictment was: That the said Francis who was murdered such a day apud quondam Down, vocat. [...] [Page 118] [...] [Page 119] [Page 120] Westmen Downe in the County of Hampton, insultum fecit, & quod ibi­dem habuit & tenuit quoddam gladium in his right hand, & praedict. Franc. percussit, and does not say ibidem percussit; And therefore naught: For it is not of necessity to be intended, that the percussion was at the same place. Also he said, whereof instanter obiit, that is no certainty, but by argu­ment that he died in the same place. And for these faults, and because it was Body for Body. It was ruled that the Indictment was insuf­ent.

Braces Case.

If a Feme sole Executrix of a term, mary him in the Reversion, and dies, the term is not drowned, but the Administration of it shall be com­mitted. Otherwise perhaps if she had purchased the Reversion; And it was the Case of one Owen, That if the Debtee mary the Debtor; That the Debt is not gone, but the Administrators of the Feme shall have it.

The Marquess of Winchesters Case.

THe Marquess of Winchester prayed a Prohibition, and the surmise was, that whereas the late Marquess his Father had made the three Lamberts his Executors, which were his Bastards. He also devised that they should sell as much of his Lauds as should amount to 100000 l. and does not limit any imployment of the mony inde proveniente. And also that whereas by the Statute of 34 H. a man de non san memori is un­able to make a Will of his Land. And that the Marquess at the time of the making of the Will, was not of san memori. And it was held by the Court, that although Land be not a testamentory thing whereof the Spiritual Court ought to intermeddle with. Yet being conjoyned in the Will with the Goods, they cannot do any thing with the one, without the other. Therefore a Prohibition shall be granted. Because that for the non compos mentis, it is more fit to be tryed in our Law. And if cause be, a Consultation shall be granted for part (scil.) his Goods again. And such a Prohibition was in Case of Lloyd against Lloyd.

Munday against Martin

MUnday brought an Action upon the Case against Martin. And de­clares, That whereas at the request of the Defendant in Novem­ber, delivered to him and his Father, 30 Kerseys for which the Defendant assumed to pay 40 l. to the Plaintiff; The one half in hand, and the other half a year after. Vpon non [...]ssumpsit pleaded, It was found by ver­dict, that the delivery was made to the Defendant in August 31 next be­fore the November mentioned in the Declaration. The Question if that will maintain the count or not. Ward, That it will, for the delivery in August, is the delvery in November. As upon payment of mony upon an Obligation before the day, is a payment at the day. And then if he does not pay it within a year after November, he does not pay it with a year after August. Richardson on the contrary. For that cannot be intended the same promise. For upon such a variance the Defendant may wage his Law. And so it is if a man declares upon Debt of one day, and the Déed bears date at an other day. Also it is, that the delivery was to the Defendant and his Father, and it is found that it was to him only. So that that cannot be intended to be the same Consideration: Vpon another Cause upon the Declaration he cannot have Iudgement. For it is in con­sideration, [Page 121] quod delibera [...]set which is in the Preter tence, and therefore naught, As 10 Eliz. Dyer 272. In consideration that he was bayl for his Servant, the Defendant assumed, Not good. 37, 38 Eliz. Between Ge­reny and Goteman, in Consideration quod dedisset duas, &c. he promi­sed to pay 10 l. at the day of his mariage. Held no Consideration Crook, To the Case of the variance of the date contained in the Deed. There it varies from that which is his warrant. And the date in Novem­ber cannot be the date in August; Nor on the contrary. The delivery raises the Consideration, and the time is not material as to the Delibera [...] ­set. It was one Warthingtons Case, That where in consideration that you will stand my bayl, I will save you harmless. A good Consideration. Hutton▪ For the delivery, the time of the contract is not materially ne­cessary to be shewn for certain; But the day of the payment ought not to be mistaken, as it is here; For if the delivery was in November, the payment ought to be in November too. But it appears by verdict, That the delivery was in August, And then so the payment ought to be. And then consequently the day of payment is mistaken. Yelverton, The Plaintiff cannot have Iudgement. For then he might charge the Defen­dant again, upon a delivery in August. Atthowe, If upon an Obligation the mony be paid before the day of payment, It is a payment at the day, if the Obligee dies not in the mean time. But I do think that if he dies before, that payment cannot be pleaded in an acti­on of Debt brought by the Executors against him. Sed adjour­natur.

Sir Iohn Spencer against Scroggs.

SIr Iohn Spencer brought Debt against Scroggs, who pleads per minas. The Venire fac [...] was returned, and the Iurors appear; And the Ar­ray was challenged by the Defendant for Cosinage between the Sheriff and the Plaintiff. Whereupon a new Venire fac. was awarded to four Coroners who return the Venire fac. and subscribe A. B. C. D. Coronato­res. And in the Habeas corpus A. B. C. D. only; And Iudgement was given; And upon that Error, It was argued, that does not lye. First, For that it is aided by the Statute of 18 Eliz. That no Iudgement shall be reversed after Iudgement for an insufficient return. Also as it appears by 8 H. 6. Such a Return at the Common law, made by the Sheriff, shall be good, although he was not called Sheriff. But that Law was afterwards changed, And only Sheriffs, and Bayliffs of Franchises was provided for. By which Coroners were not in. Hutton, The Sta­tute of 18 Eliz. extends to insufficient matter of the Return; But does not intend to toll the Statute of York. He said also; that he thought it was not requisite at the Common law, for the Sheriff to put his name of Office upon the back of the Writ. But he demanded how it might appear, that they are Coroners, if they are not named so. Crook, It hath been adjudged that, Co­roners ought to put their name of Office; And their names are parcel of the Return. So that defective insufficiency is re­medied by the Statute of 18 Eliz. Richardson, Without putting their names, it does not appear that they are Coroners.

Luvered against Owen.

HE declares upon the Statute of E. 6. for tithes; and an exception was taken. For that, that it was said tam pro dom. rege quam pro se ipso. But it was affirm'd to be good, For the King is to have a [Page 122] Fine. Hutton, If an Action be brought upon the Statute de scandalis magnatum; The Plaintiff may declare tam pro domino Rege quam pro se ipso. And so upon the Statute of Hue and Cry. It was objected, that one Tomlins Case was adjudged to the contrary. But that Case was, Because that he demanded in this manner, and the Statute when it says, that he shall forfeit, it shall be intended to him who had the loss, So it could not be demanded for the King. And at length it was adjud­ged, that the Declaration was good.

Harding against Turpin.

IT was agréed by Hutton, If a Copyholder makes a lease for years, to commence at Michaelmas; it is a forfeiture presently, None gain­said it.

Hutchinson against Chester.

AN action upon the case was brought against Chester, And declares how the Plaintiff was in doing of certain businesse for the Defen­dant. The Defendant said to him, Do it, and I'll repay you whatsoever you lay out. And shews that he had expended 4 l. and does not shew in certain and particular circa quid. And for that cause it was held naught.

Read against Eaglefield.

IN debt by Read against Eaglefield, and others, who were Sheriffs of Bri­stowe: The case being that they being Sheriffs, took the Plaintiff by a Capias ad satisfaciend. and detained him in prison, untill the party De­fendant, and now Plaintiff paid the money to the Sheriff. It was held that that was contrary to his warranty, which is ita quod habeat denari­os hic in curia. And for that he did not so, he is chargeable to him that was in Execution.

Stone against Walsingham.

STone libels against Walsingham in the spiritual Court, and he pleads an agréement, that for five years, he ought not to set forth his tithes but to pay for them 6 s. 8 d. upon which matter a prohibition was granted. Richardson, you ought not to have a prohibition. A lease for tithes ought to be by deed; but by way of contract it is good for a year only without deed. Vpon the Book M. 26 H. 6. But for 4 or 5 years by pa­rol, Such an agreement is not good. Richardson, May a Parson bargain and sell his tithes happening 4 years after by parols. Yelverton, It had been so adjudged in many Cases in the Kings Bench, and the difference is, where it is by way of demise, and where by discharge. Hutton, The reason why it is good for years is, for that that the contract moves seve­rally. But by way of deuise between Parson and Parishioner it is not good. And Weston and Biggs case, where it was resolved. If there was an agréement made between Parson and Parishioner for discharge for tithes, for years, it was good without deed: otherwise if it be for life. Davenport, not. Richardson, Then for more than a year that contract is void: And you cannot bargain and sell the profits of beasts which a man hath not in his possession now; but for those which he hath in his possession, he may sell any profits. Quod concessum.

Intr. 4 Car. rot. 670, or 870.
Litman against West.

LItman brought an action upon the case against West for words. And he declared, he being an Attourney, &c. and colloquio habito between them concerning his office. The Defendant spoke these words. He is a Cozener, and hath cozened me of 20 s. And Serjeant Henden objected, that the words were not actionable. For that, that they are too general. And although they had Communication of his Office, As Attorny. Yet when the words were general, and might be applyed as well to other things as such as touch his place; yet for that, &c. As if one says of an Attorney, Thou art a Common Barrettor. Is not actionable. And it was adjudged where one said to a Wheeleright, Thou art a Cousener and hast cousened me of a pair of Wheeles. Is not actionable. And Sir Wil. Fleetwoods Case. One said of him, He is a Cousener, and hath con­sened me in entring the Kings Accounts. So here he might cousen him of 20 s. twenty ways and not as Attorny. Richardson said, the words were actionable. Some words spoken of some men would bear an Action, although the same words spoken of another would not. As the Case of an Attorny especially, as the Case is laid here: And he had spo­ken of him as an Attorny. Then it ought to be taken that he was a Cou­sener in his profession. If one said of an Attorny, Thou art a Cousener, and hast delivered cousening Bills, &c. If it had been laid here that he had been an Attorny for the Defendant. It would be actionable. And this Case is more strong than Birchleys Case in Coo. lib. 4. One said of Chomely Recorder of London, That he could not hear but of one side of his head. And that was adjudged actionable. And that being spoken of an Attorney there, it would bear an Action, One said in the North Country, That one was a Daffidowndilly, and adjudged actionable; Because that the word there used expresses an Ambidexter, being a flow­er of party colour. Hutton said, That the action would lye. In one Gardleys Case, who was an Attorny, One said of him, he was his Attor­ny, and he had cousened him. So of a Goldsmith. Thou hast consened me, and sold me a Saphire for a Diamond. These words are not actionable, because that the Goldsmith himself might be deceived in the stone. And here these words spoken of an Attorny, cannot be otherwise but to disgrace him in his profession. An action in the Kings Bench. Thou art a cousening Knave Coroner, and adjudged actionable. One said of a Lawyer, He hath no more Law than an Horse, an action lies: for both are applyed to his profession. Yelverton agreed, that the Iury had found that the words were spoken of him as Attorny; For they have found the words in the Kings Bench. The Case was, An Inne-keeper, and an o­ther were in communication and he said to him, No man comes to thy House, but thou cousenest him. And adjudged actionable. And so Iudge­ment was given for the Plaintiff.

Middleton against Sir Iohn Shelly.

MIddleton recovers in Debt against Sir Iohn Shelly, and had Exe­cution. And afterwards Sir Iohn purchases the Land of the Plain­tiff. And long after the Execution was sued by Elegit, and that land ex­tended. But before Livery by any, the Plaintiff dies; Yet the Sheriff returns that he delivered the Land. Hutton, We will not credit that he is dead. But you bring a Writ of error. Yelverton agreed, The re­turn [Page 124] of the Sheriff Richardson the return of the Sheriff does not preju­dice a third person although it concludes the parties. And if the Execu­tion was made, if the party brings an Ejectione firm. Whatsoever the Sheriff returnes, his proceedings ought to be proved legal. See if the Sheriff deliver possession where the partie is dead, if any thing lies: It was urged to have a writ of restitution. But where the Sheriff gives possession contrary to the rule of the Court.

Coventries case.

IN Coventries case before, Ashley brought a Copy of the sentence given in the high commission Court: which was, that the parties shall be ex­communicated, and be fined 30 l. and imprisoned. Whereupon he prayed a prohibition, Richardson If they had gone but to excommunication they had been well. Yelverton Iustice, they have power by fine, and imprison­ment in some cases; but here where the party grieved may be fined at, Common law, not. For if the party be fined in the high Commission and be afterwards indicted &c. he cannot plead this. But e converso if he be indicted, and afterwards sued there, he may plead that in the high commission Court. Richardson, they that deny their power to fine and imprison, say that they may so proceed only in two cases (scil.) of He­resy, and and incontinency of Priests: which is also by the Statute of 8. H. 3. 7. But ecclesiastical censure by excommunication is more grand, if it were so regarded. And they may enjoyn penance, and put the party in prison until he does it. But before he granted a prohibition he would have the parties present. Harvey, They in the high commission Estreat their presentments, and then the prosecutor shall have the third part in such unreasonable fines. Which ought not to be permitted by us, &c.

Bramston the Law at first gave them power to fine and imprison, in cases which were not fineable before by the Common law, to strengthen their jurisdiction. But that was fineable before. But afterwards a prohibition was granted as to the fine, but not for the imprisonment; But for that he ought to have his habeas corpus.

The King against the Archbishop of Canterbury, and Thomas Prust Clark intratur, trin. 4. Car.

THe King brought a quare impedit against the Bishop of Canterbury, and Thomas Prust, for the advowson of the Church of Islinstock, in the County of Southton, and recited the Statute of pluralityes; and after­wards declared that the Marquess of Winchester was seised of the Rectory, to which the Advowson of the Vicarege belonged: and that he made a lease of it to Sr. Austine Mayn; He presents John Shelton Clark 12. Jac. and the Vicarege was above the value of 8 l. And Shelton 15 Jac. took the Vicarege of Holcumbernel, which was with the cure of Soules, also by which the first became void, and so remained until 3. Car. And being void the King presents to it, and was disturbed. The Archbishop claimed nothing but as Metrapolitan, during the vacancie of the Bishop of Win­chester. And Prust pleads in bar, that he is Parson imparsonee from the presentation of Foyle, who confest the Statute, and the Demise for years from the presentation of Shelton: and that he took a second bene­fice with the care. But he said that he continued possession as Incumbent, and then pleads the generall pardon of 21. Jac. a quare impedit is not ex­cepted out of it. And that Shelton continued possession after the Parlia­ment, and the resigns to Foyle and presents him. Prust replyes and con­fesses [Page 125] the pardon, but that there is an exception of all titles and actious of quare impedit, other than such titles and actions of quare impedit, as his Majesty hath or may have by reason of laps incurred above three years past for or concerning any benefice or Ecclesiastical living is, or at the last day of the Session of this Parliament, shall be in actual possession, by the presentation of any Patron, or collation of any ordinary. Vpon which it was demurred. Atthowe for the Plaintiff, That Shelton here is incumbent in possession by presentation or Collation by By the Stat. the presentation & induction of that is void. In Coo. 41, 51. There is in Hollands case, a difference between voidance by act of Parliament, and void by Ecclesiastical Law. For before the Statute, by the taking of the se­cond benefice, the first Church was void. But not so that the lapps incurred upon it. Greens Case, If the Bishop collate before the 6 months incurre, the Collatee is Incumbent, but the Patron may present at any time after, for that fills the Church, but not against the Patron, and hinders that no laps may incurre to another. In Sir Henrie Gawdies case for the Church of Walsocken. The Church there became void, and within 14 days after, The King presented one to it jure prerogativ. suae. The presentee conti­nues possession above 30 years, and then the Mannor and the Advowson came to Sir Henry Gawdy, the Church is void, and the King presents again, and was disturbed by Sir Henry. For that the King brought a Quare impedit. And adjudged that the presentation of the King within the six moneths, was not an usurpation. But if he had presented in his own right, there should have been an usurpation. When a title by laps is in the King, if any present, the King may remove him during his life, by Quare impedit. All this appears hy Baskervills case; but if the In­cumbent die, the term of the King is gone; but if he resign not, but the King may present during the life of the Incumbent, And that was a grand inconveniency, that after so long possession in that manner the In­cumbent may be removed by the King. And for that purpose was the Statute in the first clause of the exception made. That the King in­tended to pardon, it would be a wrong to him, and an exception ought to be of the same nature. The taking of the second benefice, is not a tort, and therefore a title of the Quare impedit accrewed to the King. As for the pluralities, the words of the Statute are, that it shall be doid, as if he was naturally dead, and therefore it is meerly and actually void. If a man takes a second benefice and dies, issue ought to be taken whether the first vacabit per mortem. And it was found that, not; For it was sold before the death of the Incumbent. Yelverton If he took the second be­nefice, yet he might have the tithes of the first. And there are words in the Statute, which shall be construed more beneficially for the subject.

Pinsons Case.

PInson was collated, instituted and inducted by the Bishop of Exceter's Patron, Doctor Hall. The Bishop collates another pretending that the first Incumbent had taken a second benefice, whereupon hhe first was void, or revera the the first Incumbent had a dispensation. And not­withstanding that the Bishop sequesters the benefice; Vpon discovery whereof to the Court, a prohibition was granted.

Nihil.

WHen a nihil is upon a writ of Covenant, pro licentia concordan­di secundum consuetudinem antiquam, only 6 s. 8 d. ought to be ever paid for the post fine, which is in case of the Lord Keeper, and some o­ther who are excused of a Fine, pro licentia concordandi.

Bragge and Bristowes Case.

IT was agreed by the Court, that where there was a difference be­tween one, and another who had married his daughter, which diffe­rence was referred to a friend to compound. And he ordered that the Father and the Son to enter into a bond to pay so much to the Daughter; And afterwards the Son promises to do it: That here might be a suffici­ent consideration between Father and Son for the making of that pro­mise.

Corporation Court.

IT was agreed by all the Iustices, that in a Corporation. If the De­fendant pleads a forein plea, which is collateral. As if he be sued in debt upon an Obligation, and he pleades a release made in a place out of the Iurisdiction of this Court, it ought not to be received without Oath, &c. But if in Covenant or debt for money to be paid at another place, he pleads payment accordingly, or the Covenants performed in the place limited, which was out of the Iurisdiction, it ought to be received with­out Oath, quod not.

Double delay.

BY the course of the Court double delay cannot be allowed; as if the Defendant in debt plead, that the Plaintiff is a Recusant convi­cted, and had a special imparlance, afterwards the Plaintiff conforms, The Defendant cannot plead Outlawry in the Plaintiff.

Iohn Felton's Case.

MEmorand. quod Thursday 29 die Novembr. 1628. Iohn Felton was arraigned in the Kings Bench, for the murther of George Duke of Buckingham. And the Iustices of the Common Bench demanded of the Serjeants of the King, who were present in the Kings Bench, what was done with Felton. And Ashley answered, That he had confessed the fact, and that the ordinary sentence of death was given against him. But they marvelled that for so notorious offence, the sentence was not, that he should be hanged in chains. Yelverton, That any other sentence than the ordinary sentence cannot be given. But after that he is dead, his body was at the disposition of the King, which was not denyed by the o­ther Iustices.

Turner against Hodges.

TUrner brought Trespasse quare clausum fregit against Hodges. The Defendant said that loco in quo &c. is Copyhold, and that the Lord Dudley is seised of the Mannor of Sedgley, and granted the Copyhold in Fee to Roger Turner, and he makes a Lease to the Defendant Hodges for a year. The Plaintiff replies that there is custom within that Man­nor. If a Copyholder makes a lease without licence of the Lord for a year, and dies within the term, it shall be void against the heir. And upon the issue of Nul tiel record, it was found for the Plaintiff. And At­thowe prayed Iudgement, and shews that the custom is good, and not contrary to reason. 4 rep. 26. It was resolved that lessee of a Copyhold, without licence, for a year, may maintain an Eject. firm. for his term is war­ranted by the Law, by force of the general custom of the Realm. But that [Page 127] ought to be intended by the custom within every Mannor within the Realm, Whatsoever a Copiholder does is by Custom. The Case here is that it shall be void by the death of the Lessor which is an Act of God; That was, that if Copiholder made a Lease for years, and afterwards aliens: that to be void against the Alienee would be unreasonable. 39 Eliz. There was a Case referred to the Iudges out of Chancery which was de­bated in Sergeants Inne. Littleton, 59 b. Armesstrong Lord of a Man­nor prescribes that a Copiholder upon the change of every Lord; should pay a Fine. But by all the Iudges it was ruled a void Custom; For the Lord might change his Mannor every day. But if it had béen, That after the death of the Lord he should have a Fine. That is a good cu­stom For it is the act of God. So in our Case, the custom is void a­gainst his Heir, which is by the act of God. In some Cases a custom alters the nature of a Free-hold land. 5 Rep. 84. Perrymans Case. A Feoffment shall not be good untill it be presented in the Court of the Man­nor, a good custom. If a free-hold estate may be controlled by a custom a multo fortiori a Copi-hold estate. Barkley argued on the other side. Al­though it be found for the Plaintiff. Yet if the custome be void; a void custome is no custome. And for that it is said in the Earl of Lecesters case. That a void custome cannot be confirmed by Act of Parliament. And that is a void custome. We ought to consider the nature of a Copyhold In­heritance; By the Common law it is but an Estate at will: But the Common law so takes notice to establish it by a custome. That there may be possessio Fratris of it, and he may have Trespass against his Lord. If Tenant at will be out-lawed, his Estate is determined. But Copyhold is not determined or forfeited by Out-lawry. As it was ad­judged, 44 Eliz. So that the Law takes notice of it as of an other Estate of Inheritance. Where an Heir after his death may enter as Heir at Common law, and have Trespass; because that it descends. At Com­mon law he had power to make a Lease for a year. For it is not the custome of the Mannor that he may make such a Lease; For then it is pleaded, If a Copiholder makes a Lease for divers years without alleging a custome or Licence of the Lord, he cannot maintain an E­jectione firm. against his Lord, but perhaps against a Stranger. It may be, then if it be the very Law, if he may make a Lease for one year, if this custome be good; It will be contrary to the very liberty of the Estate, 19 Eliz. Dyer Solomons Case. Custom, that Tenant in Fee-simple shall not make a Lease for more than 5 years is void. So Little­ton says, That a Condition that the Feoffee should not alien, was void. And a Condition that Tenant in tayl should not suffer a Common reco­very is void. Because that it restrains that Liberty which is annexed to the Estate. And for the difference between the Father and the Heir in our Case there is not any difference; For the Heir is all one with Fa­ther and in loco patris. For he might have Trespass by discent of a Copi­hold. Sir William Herberts Case. And then if the Father shall be bound by the Lease, so shall the Heir. Richardson said, That Iudgement ought to be given for the Plaintiff. Copihold as it is created by Custome, so in all it is guided by Custome; For at the Common law a Copiholder could not make a Lease for a year, But because that it is a general custome of all Mannors in England: For it is not but a meer Estate at will by the Common law. Then this custome is not against the Li­berty of the Estate. For a Custome inables that the Lease, and a Custome ought to destroy it upon a Contingency as here by the death of the Father; For that the Lord may know his Tenant. And therefore the Case is reasonable, and not to be compared to the case of a Freehold in Dyer. A Freehold may be restrai­ned by Custom. And yet a Freeholder may be restrained by custome; [...] [Page 126] [...] [Page 127] [Page 128] As antient demesn, which he passes by the delivery of a Turf or a pair of Gloves, and it is not convenient, for it is at the peril of him who takes the Lease. Copyholder makes a Lease for a year. But if he dye within the year, his Heir within age, it shall be void against the Lord. So that the Lord during the nonage shall have the Copihold to hold for his Services is a good Custome. And so in our Case. Hutton agreed, That at the Common law it might be restrained by custome. And a Con­dition, that a Lease for 3 years shall be void, if the Lessor dye during the term, is a good Condition. Without doubt the custome is as old as the Estate, then it is as good to abridge the Estate, as to the other to create it is: It is reasonable too. For the Lord should have his Tenant in pos­session, by which he may the better pay his Fine. But if the Lease be made by Licence of the Lord, It is a Confirmation. For that, if the Copiholder makes a Lease for years with Licence, and dies without Heir, The Lord shall not avoid the Lease. In some place the custome is, If a Copiholder dies before Candlemas, the Executor shall have it for that year, to remove and dispose the Copiholders Estate; Custome in this Case you see tolls the Heir. And he agreed the Case and diffe­rence cited by Atthowe out of Cook, Littleton. Harvey agreed, That it is a good custome for the Lord, and for the Tenant; For the Lord to know his Tenant, and for the Tenant to have the Estate, and pay the Fine. Yel­verton agreed also, the Lease for a year is in it self made by custom, And the same custome may confound it; For there is a concurrence of others, or one may controll another. 21 H. 7. 14 H. 8. A Lease for years, provided the Lessor may enter at his will that is a good lease, determinable at will, being uno flatu so. So in our Case; But it is done, that a Copiholder within the year surrenders his Copihold, that the Lease shall be void. That is an unreasonable custome. In the Kings Bench, It was adjudged, A Copi­holder makes a Lease for years by Licence, and the custome, if the Les­see was not in possession at the time of the death of the Lessor, that it shall be void. Lessee assigns that over, and the Assignee holds it; For custome ought to be taken strictly. And he agreed the Case put by Hutton, of an Executor; And the difference that against the Lessor it should not determine; And the reason put before. And so judgement was given for the Plaintiff.

Stone against Walsingham before.

THe case was again moved in Court, which was that they agreed de anno in annum so long as the one should be Parson, and the other Parishioner, si ambobus partibus tam diu placuerit, he should retain his tithes for 6 s. 8 d. per annum. And Richardson Iustice said, and it was not denied, that the suggestion is naught for the incertainty of it; and a Prohibition cannot be granted upon that. For the words de anno in an. make an estate for a year. And the next words make an estate for life, & the last but an estate at will: & what shall be traversed here. It is seen that for years it is good without Deed, but not for life; And if it be but at will; when the other demands his tithes, the Will is determined. But at an other day, the suggestion was made, That he made severall agreements with his Parishioner, that he pay 6 s. 8 d. for his tithes for 4 years. And then a Prohibition was granted. Harvey sufficit, If an agreement be pro­ved for those 4 years.

Wilson against Peck.

WIlson brought an action upon the Case against Peck, and declares; A Man may justifie in maintenance that he was a Sollicitor. That the Defendant in consideration that the Plaintiff should be his sollicitor in several sutes depending against him, in this Court, affirm­ed that he would give to him for his pains as much as he deserved. And he said that he deserved five marks: And upon an Assumpsit pleaded, it was found for the Plaintiff. And it was moved in arrest of Iudgement, that the consideration was against Law; because that it was mainte­nance. But Henden on the contrary. And that it was lawfull to have a sollicitor. 5 H. 7. 20. There it is said, that a man may justifie in main­tenance that he was a sollicitor. And the fees of an Officer, 3 Iac. cap. 7. gives satisfaction in that case. It was said that a sollicitor is not a man known at the common law, but an Attourney, and had his fees set out by the Law. 9 Eliz. Dyer. Onelyes case. But Munson and Manwood held that it was maintenance in a sollicitor to prosecute and pay money for another. And Dyer did not oppose that opinion. Pas. 13, Iac. Rot. 75. Com. Banc. Solomon Leeches case. An Atturney of this Court brought an action upon the case for solliciting of sutes. And there it was conceiv­ed, that it was an ill consideration, and could never have judgement. But Richardson said that in Solomon Leeches case, he brought an action for the money disbursed, and not only for as much as he deserved for his labour; And said that a Sollicitor is a person known in the Law. 1 H. 7. And it was one Snowdens case. One brought an action against him. And he justified, that such an one made a title to his Clyents land, and that he was his Sollicitor in the suit; And ruled to be a good Iustification. By which it appears, that a Sollicitor is a person known in the Law. And the Stat. 3 Iac. much prevails with him for to be of that opinion. And it would be a miserable case if you would allow no Sollicitors, but Attourneys in the Star-chamber, & Chancery. For there the Attournies will not move out of their Chambers. And also it is convenient that Attournies of this Court follow businesses in the Kings Bench, And the case was in consideration that he would be my servant, and follow my sutes, I promise him as much as he deserved: An action will clearly lie here, and a Sollicitor will not alter the Case. For he is not but a servant. Hutton on the con­trary. I may retain a man in my service, he may follow my sutes, but then he ought to maintain the action upon the Statute. For a Sollicitor is within the Statute, and a Sollicitor of sutes is one kind of maintenance, and we ought not to allow it. And so it was taken in Leeches case, That there was no remedy for a Sollicitor, if he had not an obligation. And he said that in the Star-chamber, in the time of Egerton, a Sollicitor was punish'd there. Yelverton agreed with him. Harvey said, that the same case is now depending in the Kings Bench. And the opinion is, that an Attourney or a Counsellor, who had a profession towards the Law, might sollicite any sute in any Court, and it is not maintenance; But a­nother person not. Yelvert. agreed to that, but said that he ought to shew in his Declaration that he is an Attourney. And afterwards the parties agreed, &c.

Scire facias against the Bayle.

IF a Scire facias be brought against the bayle, and Iudgement be, Debt be brought a­gainst the bayl. that the Plaintiff be satisfied out of the lands and chattels of the bayle, and so a capias does not not lie against them. But if debt be brought, as it may be against the Bayle, otherwise it is.

Hill. 4 Car. Com. Banc.Plummers Case.

IF a Recusant bring an action, &c. and the Defendant pleads that he is a Recusant Convict, and then the Plaintiff conform, which is certified under the Seal of the Bishop; And upon that, orders that the Defen­dant plead in chief; and then the Plaintiff relapses, and is convicted again: The Defendant cannot plead indisabilitity again, As it was adjudged by the Court.

Sir John Halls Case.

SIr Iohn Halls case in a quare impedit, It was given for the Plaintiff, who was presented by the King to a Church void by Symony; That it was apparently proved, that the Plaintiff had a writ to the Bishop of Winchester, who returns before the writ accepted (scil.) Such a day, (which was after the Iudgement) the Church was full by presentation out of the Court of Wards, because that a livery was not sued. These returns, that the Church was full before the receipt of the writs, are always ruled to be insufficient. For the Bishop ought to execute the writ when it comes to him. 9 Eliz. Dyer in a scire fac. &c. 18 E. 4. 7. The difference here is, That the King presented, If the presentee of one without title is admitted and instituted, the Patron may bring a quare impedit with presentation, for it is in vain for him to present when the Church is full. But if a common person recover, and had a writ to the Bishop, if the Ordinary return that it is full before of his own present­ment, it is good; As if one recover, he may enter if he will, without a writ of execution to the Sheriff. And in this case the second presentation does not make mention of the other presentation, or revoke it. But if the Ordinary had returned an other presented by Symony, under the great Seal; And that the other in that was revoked, that is good. For it is an execution of the Iudgement, & may be pleaded in abate of the Writ. But if this return should be allowed by this trick, all the recoveries in a quare impedit should be to no purpose. Harvey only present, agreed that the Iudgement ought to be executed, and that that is a new devise. And if the presentment under the seal of the Court of wards was returned, then the question would be, whether the great Seal, or this Seal should be pre­ferred, but the presentation is not returned. Whereupon they two a­greed, That the Bishop should have a day to amend his return, And not that a new writ should be taken against him.

Andrews against Hutton.

Hutton Farmer of a Mannor, Andrews and other Churchardens li­bels against him for a tax for the reparation of the Church. Henden moved for a prohibition, because that first the libel was upon a custom, that the lands should he charged for reparations, which customs ought to be tryed at the Common law. And secondly he said. That the custom of that place is that houses and arrable Lands should be taxed only for the re­parations of the Church, and meadow and pasture should be charged with other taxes. But the whole Court on the contrary. First, That [Page 131] although a libel is by a custom, yet the other lands shall be dischargeable by the Common law; But the usage is to allege a custom; and also that houses are chargeable to the reparations of the Church, as well as land. And thirdly, that a custom to discharge some lands is not good. Where­fore a prohibition was granted.

Sir Iohn Halls case again.

IT was moved again, and Henden endeavoured to maintain that the re­turn was good. And he said, where the King had Iudgement upon the Statute of Symony, The King may choose, if he will have the Writ to the Bishop: For if he present, and the Bishop admits his Clerk, it is a good performance of the Iudgement. And admit that the King had a former title, this title remains notwithstanding that Iudgement. And it is not necessary to return it. For if the title be returned, it is not tra­versabe. Henden, If the return was that the Church was full by presen­tation of a stranger, it is clearly void. Richardson in Bennet and Stokes case, there was a rule, and adjudged that if a Clerk be admitted pendente lite ex praesentatione of a stranger, who is not a party at all to the sute. Yet such a plenarty returned, is not a good return. And upon superinstitu­tion, their titles ought to be tryed. Yelv. The King presents one under the great seal of the Court of Wards, this second presentation is not a revo­cation of the first, but it is void. Richardson, And so is the second void, because the King is not fully informed of his title; but if he be, then per­haps it would be otherwise. Henley, One is Patron, and a Stranger presents, who has not title by Symony; all is now void. But the King is not bound to present by Symony, but may present as Patron. Yel­verton and Richardson, The Bishop ought to obey the Writ of the King. And when the Clerk is instituted, that the incumbents may try their rights in trespass in Ejectione firm. or otherwise the parson who recovered should be shut up.

Dawthorn against Sir Iohn Bullock.

IN a Replevin for taking of his goods and Cattel. The cattel and goods were delivered in pawn to the Defendant for mony, and the Plaintiff did not pay the money at the day, yet in the absence of the Plaintiff com­ing with the Sheriff, who replevyed them. The Defendant avows for the cause aforesaid. And Atthow demurred upon the avowry generally. For that that it appeared that the Defendant had a special property in the goods, and therefore he ought not to avow, but justifie the same. Richardson and Yelverton being only present, awarded that judgement should be for the Defendant; because that now by the Statute, they may give Iudgement upon the Right; and the Avowry is but a form, upon which the Replevin is barred; But he cannot have a returno ha­bendo.

The Countesse of Purbecks Case.

HEnden moved for a prohibition for the Countesse of Purbeck, who was censured in the High Commission Court for Adultery with Sir Ro­bert Howard, son to the Countesse of Suffolk, and the sentence there was, that she should be imprisoned without bayl or mainprise, until she found security for to perform the sentence, and she was fined 400 marks. But Henden alleged, that they had not power to inflict such punishment; For the offence is spiritual, and the punishment temporal. And the High Commission had not power to impose a fine, and imprison for Ecclesia­stical [Page 132] causes. For the liberty of the Subject is Precious. And therefore the censure in the Ecclesiastical Court ought to be only by ex­communication; before the Statute of 1 Eliz. there was not any questi­on of it, as appears by Articuli Cler. And the Statute does not make al­teration of it, but only in the things there named. Hil. 42 Eliz. Smiths Case, who was censured for Adultery with the wife of Stock, and censu­red as here. And an House was broken to apprehend, and a Prohibiti­on was afterwards granted, for that, that nullus liber hom [...], &c. ought to be imprisoned, &c. without lawfull proceedings. Secondly 23 H. 1. 8. ap­pears the particular course of proceeding in Spiritual causes. Richardson, The first part of the sentence is not part of the punishment. But that she shall be taken untill she gave security, &c. And it is not but agreeable to the Ecclesiastical course. For if she be taken by a Writ de excommunicat. capiendo, and then to perform the sentence or make agreement for the second part; It is express within their power. Brampstone said, she is a feme Covert, and part of the sentence is impossible (scil.) that she should pay the Fine; and then by that means the imprisonment would be perpetual. Yelverton, They cannot imprison without bayl. Their Commission does not give them such power. And at another day Richardson said, That it was out of the High Commission, and the Fine estreated. For that now no Prohibition may be grant­ed, &c.

Smith et al. against Pannel.

SMith et alioc Church wardens of Bignel in Essex, presented to the Arch-deacon, that one Pannel was a Rayler and a sower of Discord amongst his Neighbours; Whereupon the Arch-deacon inioyned him pur­gation, et sur motion the Court granted a Prohibition; for this Case belongs more perhaps to the Leet, than to the Spiritual Court, unless the rayling were in the Church, or any waies tending to the Ecclesiastical rights.

Wats against Conisby.

ELizabeth Wats Wife of Edward Wats libelled in the Spiritual Court, against Iane Conisby for a legacy of 100 l. the Defendant pleaded a Release of Wats the Husband after mariage, and there were no Wit­nesses to the release to prove the same, in regard they were dead, and ther­fore it was not allowed, but upon averment of the party, that there were Witnesses that could prove the Release to be the hand of the party, and that had heard the party confess so much, that he had subscribed to the Release. Prohibition was granted concerning this averment.

Lashes Case.

IOhn Lash brought to the Bar by a Habeas corpus cum causa directed to the Mair, Aldermen, and Sheriffs of London, who certified the cause, as followeth, That there hath been a Court of Orphans time out of mind in London, and that the custome hath been, that if any Freeman or Free-women die leaving Orphans within age unmaried, that they have had the custody of their Bodies and Goods; And that the Executors or Ad­ministrators have used to exhibite true Inventories before them, and for the Debts due to the deceased, to become bound to the Chamberlane to the use of the Orphans in a reasonable sum, to make a true account up­on Oath of them after they be received; And if they refuse to become bound, to commit them till they become bound, and then sheweth that one [Page 133] Joan Cather Widow, being a Free woman-Fishmonger died, leaving divers Orphans, and that Iohn Lash was Administrator and had exhibi­ted an Inventory of 1000 l. debt unreceived, and was required by this Court to give bond in 1000, who refused per quod. And it was alleged for the Prisoner by Sergeant Atthowe, that he was already bound in the Ecclesiastical Court to make account, and so he should be twice bound, al­so he was inform'd that there was no such custom for Widdows of Free­men; But the Court resolved, that they could not examine the truth of the custom, but the validity of it, and they held it reasonable, if it were true, which is returned, but if the Ecclesiastical Court would impugn a law­full custom, the Court would grant a Prohibition.

Scot against Wall.

SCot moved to have a Prohibition, that whereas he had 20 acres of wheat, and had set out the tenth part for tithe, the Defendant preten­ding that there was a custom of tithing that the Owner should have 54 Sheaves, and the Parson 5, and so he sued for tithes, for that there was no such custom, for the Court said, that the modus decimandi must be sued for as well in the Ecclesiastical Court as for the tith it self; and if it be al­lowed between the parties▪ they shall proceed there, but if the custom be de­nyed it must be tryed at the Common law, and if it be found for a custom, consultation must be granted, if not, then the Prohibition is to stand.

Farmer against Sherman.

IOhn Farmer brought Prohibition, and the Case was thus. And Ab­bot having a Privilege to be discharged of tithes quam diu manibus pro­priis, &c. in the time of E. 4. made a gift in tayl, 31 H. 8. the Abby was dissolved, question whether upon the clause of discharge of tithes within the Statute of Monasteries, the Donee and his Heirs should be dis­charged, and held that he should not; for that Statute dischargeth none, but as the Abbot was discharged in the time of the dissolution, so that they must claim the Estate, and discharge under the Abbot; but if by a com­mon recovery, the reversion had been barred before or after the Statute, it had been otherwise.

Napper against Steward.

NApper against Steward, the Parson had a Prohibition against divers of his Parishioners that libelled in the Spiritual Court to make proof by Witnesses of divers manner of tithing in perpetuam rei memoriam.

Hide against Ellis.

A Prohibition for Hide against Ellis farmor of the rectory of Stanfield in Com. Berks, & prescribed that all tenants and occupyers of meadow had used to cut the grass, & to strow it abroad called Tetting, & then gathered it into wind-rows, and then put it into grass-cocks in equal parts without a­ny fraud, to set out the tenth cock great or small to the Parson, in full satis­faction, as well of the first as of the latter math; Vpon traverse of the cu­stom it was found for the Plaintiff, & exception was taken, that the custom was void, because it imports no more than what every Owner ought to do, and so no recompence for the 2 maths, But the Court gave Iudgement for the Plaintiff, for dismes naturally are but the tenth of the Reve­new [Page 134] of any ground and not of any labour or industry; where it may be divided as in gross, it may, though not in corn, and in divers places they set out the tenth acre of Wood standing, and so of grass, and the Iury having found out his form of tithing there it is sufficient, and the like Iudg­ment upon the like custom in the Kings Bench, Pasc. 2 lac. rot. 191, or 192. inter Hall & Symonds.

Int. Hil. 2 Car. rot. 2445. Bells Case.

AN action of Debt was brought by Bell upon an Obligation against one as heir of the Obligor, (scil.) Brother and Heir. And the De­fendant pleads riens per discent. from the Obligor; And upon that issue there was a speciall verdict found, that the Obligor seised of Lands which descended to his Son W. who died seised of the Lands which descended to his Vncle, who was the Defendant. Crawley, Two things are required to maintain the action; Whether the Defendant be heir. Secondly who held lands by descent from the Obligor now is heir at Common law. And now the heir by the Mannor shall be charged in debt, as well as the Heir at Common law. Dyer 228. All Brothers in Gavelkind shall be charged. 11 H. 7. 12. The heir of the party of the mother shall be charg­ed, and so shall Bastardeign, 4 E. 3. 14. Heir by Borrough-English. And in this Case R. is not heir but by the Mannor. Yet he shall be charged, 32 Eliz. Dyer 368. by 4 the Iustices. And the Defendant here had Lands by descent from the Obligor, by which he shall be charged, which was agreed by the whole Court. But by Richardson, It is not sufficient that he be heir in Blood, and heir by the Mannor. But he ought to have also Land to him by descent from the Obligor. But here the Plea is that the Land descended to him immediately. And for that you ought to have pleaded, that the Obligor died and Lands descended to W. his Son and Heir, who died without issue seised of the said Land which descended to R. his Vncle, as Brother and heir to the Obligor. Quod fuit concessum per totam Curiam.

Grays Case.

HEnden shewed cause that a prohibition should not be granted to the Ecclesiastical Court; where the case was, That one Brother had taken administration, and the other would have distribution of the goods of the intestate; And said, that issues might enforce distribution of it; And it is grounded upon Magna Charta, cap. 18. Where there is a saving to the wife, and the issues their reasonable part. And upon the same reason that there may be a division between the issues, so there may be between the Brothers, but more remote degrees have no distribution. And it is hard that one Brother shall have the whole estate, and the o­thers nothing. And the Ordinary here is the most indifferent man to make distribution. Hutton, if the eldest son had lands descended to him, and the youngest took Administration, It is reason that the eldest shall have distribution. And by him and Harvey a Writ de rationabile parte bonorum lies only where there is a custom. And they said, if it should be admitted that the Ordinary should distribute to the Brothers; by the same reason he may to more remote degrees; And he declared their o­pinions, that many terms before they were against those distributions; But they said, That now the Ordinary would have an Obligation before they granted a Prohibition, and they coloured their Obligation with the Statute of 31 E. 3. cap. 11. That an Administrator shall be count able to the Ordinary. And Harvey said, that be knew where a man that was rich died, and the Ordinary had 600 l. to pious uses, before he would [Page 135] grant administration. But he said that in the time of Sir Iohn Bennet, such an Obligation was questioned, and they would not endure the tryal of it. Hutton said, that now for that that they could not distribute, they might in­vent a new way (scil.) divide the Administration. As if the Estate be 400 l. they might grant Administration of the Goods, of the value of 100 l. to the other. But by him and Harvey, That is illegally granted.

Doctor Wood and Greenwoods Case

DOctor Wood libels against Greenwood in the Ecclesiastical Court for tithes of Wool, Wood, and Apples, &c. And he shews that he was Vicar there; and that the 8 E. 1. there was a composition that the Parson should have the tithes of Grain and Hay, & praeterea the Viccar should have Alteraginum; And for that that those tithes did not belong to the Viccar, he prayed a prohibition. And Henden objected, that the Parishioner ought to set forth his tith, and not dispute the Title of the Parson or Viccar. But the Viccar ought to come in the Spiritu­al Court pro interesse suo; but notwithstanding that, and notwithstand­ing the Viccar refuses to claim those tithes, & that always within memo­ry they have been paid to the Parson, yet a prohibition was granted: And in the end (upon this Composition) power is reserved to th [...] Ordinary, if any doubt or obscurity be in the composition, to expound or determine it; And if he please to encrease the part of the Viccar. And there was not power of diminution. As by Hutton, It is also usual in such compositions; And they say that the word Alteraginum shal be expounded according to the use. As if wood had always been paid to the Viccar by vertue of this word; so it shall continue, otherwise if not. And so it had been ruled in the Esche­quer. And upon that president it was ruled accordingly in this Court. And by them, wood is minuta decima, as in the case of St. Albans it was ruled.

Sir Richard Dorrel against Blagrave.

SIr Richard Dorrell was Plaintiff in action of debt upon an Obligation of 400 l. against Blagrave, who demanded oyer of the condition, which was, that if Blagrave fulfilled and kept all Covenants and agreements in an Indenture, &c. between him and the Plaintiff, which on his part is to be performed and kept; Then the Defendant pleads that he had performed all the Covenants on his part to be performed, &c. And the Plaintiff shews that Blagrave the elder, by his Indenture granted a rent of 20 l. per annum, to one that he intended to marry, for her joynture, which was to commence after his death; And that it was out of all his lands in Watchfield. And afterwards by the same Indenture, he Covenants that he was seised of a good and perfect estate in Fee simple of lands and tene­ments in Watchfield to the value of 40 l. per annum. And he assigns for breach that Blagrave was not seised of an Estate in Fée of the lands and tenements aforesaid in Watchfield. Whereupon the Defendant demur­red: And Heidley moved two questions; First, that admitting the breach here well assigned, yet the obligation is not forfeited. And then when the Defendant is bound, that he perform all Covenants on his part to be performed, and not to the Covenants broken. As if Les­see for years (rendring a rent at Michaelmas and the Annunciation) co­venant to pay the rent at a day, and afterwards he fail; and then a Stran­ger is bound that he perform all Covenants, &c. That extends to the fail­er of payment, which is past here in our case. And by the whole Court not allowed: For by such means all assurances of England should be de­luded. And now in this case the Indenture and the Obligation shall be sealed and delivered at the same time. But if the Obligation had been [Page 136] sealed afterwards at another day, yet it was allowed. For by Richard­son, Suppose that the Condition of the Obligation recites the grant, &c. And the condition is, that if the land charged be to the value of 40 l. per an. that will be a good condition, and the Obligation shall be forfeit. If the condition was that the Land was then of such a value, it was presently a breach of the Condition. The second matter was, whether the breach was well assigned or not And Richards. & Yelvert. held that the breach is not well assigned. There are two things in the Covenant, one of the Estate, another of the value. Here may be a breach to be assigned upon the Estate, but then it ought to be general: For the grant out of all his lands and tenements in Watchfield, is not a conclusion to him who had lands and tenements in Watchfield, then the Obligation is forfeited. As if one be obliged to make a Feofment to I. S. of all his lands which he had by descent in D. If he had no lands there, it is not a forfeiture. So here. But if the rent was granted out of particular land, as out of the Mannor of D. There the grantor is included to say, but that he was sei­sed of the Mannor of D. which was granted. As to this diversity, the word praedictis had relation to lands and tenements in Watchfield, for no lands were named. But the material thing is the value, &c. And if praedict. goes to all the Lands, then the breach goes to more than the Covenant, and then it is not met with. But admit that it goes to all, yet it is all one: For the intention of the parties was, that the value of 40 l. joynture per annum shall be mentioned. But the Plaintiff does not mention the value. And it is sure that the word praedict. may goe to all the lands in Watchfield, or to lands of 40 l. And if the De­fendant had rejoyned, he might have rejoyned generally, scil. That he was seised of lands in Watchfield in Fee simple, and he is not forced to shew his particular estate in the lands. And admitting they had gone to tryal upon that issue, what might the Iurors find. And if they had found the value, it is nothing to the breach; That is more than was in their charge, and so void. But Hutton and Harvey on the contrary, and said, that the breach is well assigned. And Hutton took this difference, That if the Covenant was that he was seised of such particular lands of such value; The breach ought to be assigned in particular also; but where it is, that he was seised of lands of such a value, the breach is now well assign'd, & here it is a recital of lands, of the value of 40 l. per an. & to that predict has relation. And it does not appear to us if he had more lands in Watchfield, than of 40 l. per an. But these things were agreed by all. First that the an­tient pleading in the time of H. 6. is now changed, and the general plead­ing of all Covenants in the Indenture in form, although that the affirma­tive is good: And the Plaintiff ought to shew the particular Covenant broken, &c. Secondly, in the principal Case, if the Plaintiff had replyed, that he was not seised of lands and tenements in Watchfield in Fee-sim­ple without praedict. or deque fuit seise de nullis terris vel tenementis praedi­ctis in Watchfield of the value of 40 l. in modo & forma, & secundum for­mam conventionis, is a good assignment of the breach; And the De­fendant forced to shew the particulars. The Plaintiff discontinued the principal sute, and begins again; but that he might not doe without the license of the Court, as they said, Because that they might agree afterwards to give Iudgement.

Taylors Case.

TAylor was Plaintiff against Waterford in debt upon an Obligation, and the Defendant demanded Oyer of the Condition, quae legitur ei in haec verba. If the Defendant should pay such costs as should be assist at the Assizes (without shewing for what) the Obligation should be void, [Page 137] And the Plaintiff replies, that post confectionem Obligationis, Pasch.. 4 Car. Com. Banc. the afore­said words were written upon the Obligation; and the truth is, that they were endorsed upon the Obligation, by memorandum, after the Delivery. And Atthowe moved that the Plaintiff might not reply in that manner, because that when Oyer of the condition was demanded, that was entred for a condition, and so was admitted by the Plaintiff. And for that he is concluded to say the contrary. But Serjeant Davenport replyed on the contrary. And said first, that the words of themselves, will not make a condition. It is Litletons case, That some words doe not make a condition, without a conclusion, as what is contingent, 39 H. 6. And admit that the words will make a condition, yet they were written after delivery. 3 H. 8. Kellways reports. Hutton, If there be an Obligation made of 20 l. & if it be written upon the back of the Obligation, before the sealing and delivery, The intent of this Bond is to pay 10 l. for such costs, That is no good condition. Which Iustice Harvey only being present agreed. And if any thing may be part of the condition, it ought to be written before the sealing and delivery, But it is no condition if it be written after. And by them, here is no conclusi­on but that the Plaintiff may plead, that the words were written after sealing and delivery.

Mericke against King.

IN evidence to the Iury, he who had purchased the land in question (It was said by the Court) he shall not be a witness if he claim under the same title. Richardson said, that the conveyance may be proved by other circumstances. And the same reason was also agreed by the Court, That if a Feoffment be made of a Mannor to uses, that if the tenants have no­tice of the feoffment, that although they have not notice of the particular uses, their attornment to the Feoffees is good; For the Feoffees have all the estate. And Harvey said, that so it was agreed in one Andernes's case.

Sir Richard Moors Case.

IT was said in evidence to the Iury. The case was, that a man pre­scribes to have common in 100 acres, and shews that he put his cattel in 3 acres, without saying that those thrée acres are parcel of the 100, yet good. And Hitcham said, that so it was adjudged in this Court. And Richardson said, it was an Huntingtonshire case, Where a man alleged a custom to put his Horses, &c. And the custom was for Horses and Cows. And adjudged good. Hutton said, there can be no exception to the Wit­ness, who is Cozen to the party, to hinder his evidence in our law, To which all agréed.

Clotworthy against Clotworthy

THe case between Tenkely and Clotworthy was cited. One grants an Annuity for him and his heirs, to be paid annually, at two usual feasts, for 30 years, which was to begin after the death of the grantor. [Page 138] And it was agreed by all ( Richardson being absent) that, Hill. 4 Car. Com. Banc. that is a good Grant, and charges the Heir, although it first commenced upon him. Yel­verton said, he charges himself; And the Grant is for him and his heirs. And warranty, which is so granted to commence 40 years after, al­though the Father dye before the commencement of it, yet it binds the Heir. And so it is of an Obligation to be paid 40 years after. Quod con­cessum fuit.

Beckrows Case.

IN one Beckrows Case, in evidence to the Iury, &c. Beckrows intend­ing to a mary a Widdow makes a conveyance by Deed of Feoffment of his Land, to several uses, by which he setled his Land upon the issue of the Feme, having issue by a former wife. But after the mariage, he by much importunity procured the Déed of conveyance into his hands, out of the custody of the Wife, and also an Obligation which makes men­tion of it, and it was for performance of Covenants, and then he can­celled the Deed, and the Obligation, and took off the seal from them; And afterwards settles his Land upon his former Children, and dies (ha­ving Issue by his last wife.) And in actions under these conveyances; It was permitted by the Court that the cancelled Deed should be read in e­vidence. But first there should be Testimony given of the truth of that practice, before it should be read, &c.

A Copiholders Case.

IT was said by Richardson to Harvey privately. That there is almost no Copyhold in England, but the Fine in truth is uncertain. For if the Rolls make it appear, that some time a lesser, and sometime a greater sum had been paid for a Fine, that is an uncertain Fine. And he said that he was of Councel in a Case, where the Iury found that the Fine was certain, And afterwards by Bill in Chancery, It was decreed upon search of the Rolls, to be a Fine incertain. And that is now the ordi­nary course (scil.) by decree in Chancery.

Francis Bill against Sir Ar­thur Lake.

FRancis Bill was Plaintiff in an Assumpsit against Sir Arthur Lake, who assumed to the Plaintiff, that in consideration that he would make for his wife certain apparel, and prepare stuff and lace for it; That he would pay for the stuff and making as much as should be required. And he shews that he provided Sattin and Gold-lace, and made the Apparel, and shews of what value the Stuff was, and what he deserved for his labour, which amounted to the value of 39 l. and that he required the Defendant such a day to pay him, which was within six years before the action brought, but the promise was laid to be 7 years before. The Defendant pleads the Statute of Limitations, and that the Plaintiff did not bring his Action within the six years after the promise made, nor within the 3 years after the Parliament ended. But he does not shew when it ended. Vp­on which there was a Demurrer. And by the Court the ending of the Parliament néeds not to be shewn here; For the Question is not upon the 3 years after the ending of the Parliament, but upon the matter in Law, whether an Action ought to be brought within six years after the promise, or after the request. Richardson said, That it ought to be with­in six years after the promise. Here are two causes of Action (for the [Page 139] words of the Statute are within six yenrs afcer the cause of Action) the promise, and the request, and the promise is the principal, Trin. 5 Car. Com. Banc. and the Acti­on took its denomination from that, (scil.) an action of the Case upon an Assumpsit. And if there be a demand which is the case of Action: Here it will be answered, the promise for a Request without promise is no cause of Action. And the mischief that the Statute intended to remedy was, that a man was should not be put to the proof of the matter de facto so long time after. And if the request is said to be the cause of Action, the promise may be laid 20 years before, and although that may be proved. But the other 3 Iustices were against him, and said, That the intention of the Statute is, within 6 years after the cause of the Sute given, which is not untill after request. As if one promised to another so much when he should mary his Daughter. The 6 years there shall be after the mari­age; Or if one promise such a sum to one at his return from Rome, or such a place, from whence it is not impossible to return within six years; The payment shall be after the return, and there is not a cause of Action before: and also the promise and the Request are intire; For the request is part of the promise, and the promise is not in­tire untill the request. They agréed, if a man makes a request, and suffer the 6th year to pass before an action brought, and then makes a new request. And this Case was more strong, because the consideration was future. Heidley said, there was a difference where the request is neces­sary, and where it is alleged but for form. As if I sell a Horse for 10 l. ge­nerally, and after the 6 years brought an Action upon the Case upon an Assumpsit against the Vendee, and shews in his Declaration, that he was to be paid when he would require it, & licet saepius requisit. &c. within the six years; Here the Plaintiff is barred; For it was due by the contract, and the request is but formal. If a man brings an Action within the 6 years, and afterwards is non-suted for want of request shewen where it was necessary, and makes a new request after the 6 years, and brings his Action; It is good; Which was granted by the Court. And in this Case, the Court taxed Henden, for advising the Defendant to plead the Statute, and hazard it upon Demurrer. When he might have tryed first the matter in fact. But Henden said, it was dangerous not to plead the Statute. For the opinion of the Kings Bench and Exchequer seemed to be, that it ought to be pleaded. By the Court, when it is appa­rent within the Record, that the Action is brought after the 6 years cer­tainly, they doubted not but the Statute ought to be shewn in arrest of Iudgement. But the doubt is when a general issue is pleaded in an Assumpsit or Trespass, and it does not appear in the Trespass or As­sumpsit, that it was above the six years, the Statute now may be given evidence.

Starkey against Taylor.

STarkey an Attorny of the Common Bench brought an Action against Taylor for slanderous words, and declares that he being an Attor­ney of the Common Bench, of honest fame, &c. and that he gained much by that profession, which was his Livelihood, the Defendant maliciously and to hinder him in his profession spoke these words of him, Thou art a Common Barrettor, thou art a Iudas, and a Promoter, and a Destroyer, and a Viper, and a Villain, and afterwards at another time he spoke these words of him, That he was a Common Barrettor, and a Villain, and he would make him lose his practice. And upon not guilty pleaded, it was [Page 140] found that the Defendant spoke th [...]se words, Thou art a Common Bar­rettor, and a Judas, and a Promoter. But not the other words; And 50 l. dammages was given to the Plaintiff. Vpon which Ayliff moved in arrest of Iudgement, because the words were too general. And if they had béen spoken of another person, they would not lye, Hil. 30 Jac. Hawk against Moulton, I will not leave thee any thing, thou art a common Barrettor. And there was demurrer joyned upon the Declaration, but no Iudgement. The words are here found without relation to his professi­on. But if the last words had béen found it would have been questionable. Mich. 41 Eliz. Hather an Attorney brought an action for these words, Thou art a Flagging Jack, and a Cousener, and wouldst have cousened me. And adjudged not actionable, Because it does not appear, that they were spoken with relation to his profession. But Hitcham, Barkley, and Heidley of the other side. And that the words were actionable, being spoken of an Attorney, (scil.) to say he is a Common Barrettor. For although there is a doubt, if it be spoken of a Common person; Yet these are scandalous to an Attorney, for no man now will retain him in his Business. If one had said of an Attorney, That he is a Common stirrer up of Sutes, and a disturber of the peace, and so a mover of unjust actions without doubt it had been actionable. And a common Barrettor compre­hend a [...]l that. Hil. 8. It was doubtfull whether a Thief were actionable without alleging when and what he had stoln. But it was adjudged acti­onable, For Thief intimates, that he had done all that which might make him a Thief. And so Banckrupt to a Merchant. A Common Barrettor in 8 Coment. is said to be a Common mover of strifes, and there it is said, that he ought to be fined and imprisoned, if he be convicted. Westminster 2. cap. 32. There it is ordained, that a Sheriff shall not permit a Barrettor to remain in the County, much less this Court will not permit him to be an Attorney. For it is, that an Attorney ought to be discréet and of honest behaviour 4 H. 4. cap. 18. 3 Jac. cap. 7. They ought to be men of sufficiency, and honest disposition. These words touch him in his honesty and disposition. An Attorney ought to be a man of good conscience. 20 E. 4. 9. There it is said, that if a Clyent will put in a Plea which the Attorney thinks in his Conscience is not true, He may plead non sum informatus, and disceit does not lye against him; then if the words should be true he touches him in his profession, and he might never more be an Attorney. In Birchleys Case, 4 Rep. You are a corrupt man; These are smaller words, and more general, yet actionable. Yet such words make a man to mistrust him, and trust next skil is most requisite in an Attorney. 14 Jac. Com. Banc. Rot. 1753. Small an Attorney against Moon. He is a forgeing Knave, adjudged actionable, yet to a common person they shall not be accomptable, and the case before. Distrey an Attorney brought an action against Dorrel in the Common Bench for these words, Take heed of him, for he is the falsest Knave in England, and he will cut your Throat. And judged actionable, and that the words shall be understood, false as an Attorney. And a Common Barrettor is more infamous than any of these. And the word Judas here ought to be accepted according to the usual understanding of it (scil.) for a be­trayer. And what can be more scandalous to an Attorney, than to be a Betrayor of his Clyents? For which he prayed Iudgement for the Plain­tiff. Richardson said, It is doubtfull, whether the words will bear an action; Barrettor is a notorious offender, and if he be to be convicted he is to be fined and bound to his good behaviour. And it is hard to make a definition of a Common Barrettor, but a description may be made, that he is a mover of Sutes and contentious in dispositions and practice. But whether the words shall have relation to him as Attorney is the Questi­on. Birchleys Case, A corrupt man. This directly relates to his practice, so [Page 141] of Cousener. But such a thing which ought not to be applyed to him as Attorney is not actionable. Common Brabler, Swaggerer, Breaker of the Peace, which Barrettor comprehends, being spoken of an Attorney, are not actionable. For they do not refer to him as Attorney. And the Statute cited before of Westminster 2. It is to be intended, if he be found to be a Barrettor. And then he should be put out of the Court. And here if there had been a communciation of him as an Attorney, then it would be actionable. But it ought to be laid habens Collequium of him as At­torney; For then of necessity it ought to be understood of his Office. And so also the words, Trust him not, he will cut your Throat, ought to be understood of him as Attorney, he will cut the throat of your Cause. Hutton and Harvey on the contrary. And said the words here are as well applicable to his profession, as if it had béen found, that there was a Colloquium of him as Attorney. For it is laid that he was an Attorney, and that he lived by that profession: and that the Defendant maliciously to hinder him in this profession spoke these words. It hath been said what a Common Barrettor is, and his punishment is appointed by 24 E. 3. Littleton also mentions, speaking of Feoffments made to Barrettors, (scil.) Quarrellors, then being spoken of an Attorney: none but quar­relsome men will go to quarrelsome Attorneys. For although he deals in Sutes, yet his carriage and practice ought to be fair and peaceable. And without Question if it be said, Thou art a cousening Attorney, an Action lies; But by Harvey, perhaps Cousening generally will not. And if of a common person it be said, He is convicted of common barretry, It will bear an Action. And by Hutton, to say of an Attorney he is a Recusant con­victed, it will bear an Action. If it be said of a Iudge that he is a Common Barrettor, an action lies. And if it be actionable for speaking so of a Iudge, it is so of an Attorney; For he is in an inferiour ranck a Minister of Iustice, and he ought to be chosen of the most honest, discreet and religi­ous men: and these words if true, make him incapable of being Attor­ney here. As in Smalls Case before, it was held, To say of a Bishop, he is a Papist will bear an Action; For then he cannot hold his Bishoprick. If one said of a Merchant, he is a poor man, is not actionable. But if he said he is worth nothing, had been questionable. Because that it tantamounts to a Banckrupt. And by them the word Iudas is material here, for loquen­dum ut vulgus. If he had said you have plaid the Iudas with your Clyent, without doubt is actionable. Which Richardson also agreed, and said if one says of an Attorney, that hes a false Attorney, an action lies. Sed adjournatur.

Hawes's Case.

IN Dower the Defendant pleads ne unque seise que dower. It was found by the Iury that the Husband was seised, and died seised, and assess dammages to the Plaintiff generally. And it was moved in arrest of Iudg­ment, because that the Iurors did not enquire of the value of the land, and then ultra valorem terrae, tax dammages, as much as is the usual course, as the Prothonatories informed the Court. For the Statute of Merton gives dammages to the Wife (scil.) valorem terrae. And the Sta­tute of Glouc. cap. 1. gives costs of sute. But by the Court Iudgement was given for the Plaintiff; although the dammages are given general­ly, and certainly intended for the value of the Land. And there might be in the Case a Writ of Error.

Hil. 5. Car. Com. Banc.Simcocks against Hussey.

SImcocks brought waste against Hussey for cutting 120 Oakes, and the Iury upon nul. wast. pleaded, found him guilty of cutting 20 in such a field, and so sparsim in other fields, which was returned upon the Postea; but nothing said of the other 20. where in truth the Iury found him not guilty of them, but the Clark of Assizes took no notice of that. By the Court, If the Clark had taken notice, there might have been an amend­ment by them; But here they gave direction to attend the Iudge of As­size to examine the truth of it. And if they could procure the Clarks to certifie the residue, they would beleeve it.

Dower.

DOwer was brought for the moiety of 45 acres of land, and for part non tenure was pleaded, which was found for the Plaintiff, and for other part Ioyntenancy, which was after imparlance; Whereupon the Plaintiff demurred, and Bramston prayed Iudgement, and answered farther, for that that it was after imparlance, and cited one Doctor Wa­terhouses case in Dower, where it was adjudged, that non-tenure after imparlance was not a plea; And by the same reason shall not joyntenan­cy be, 32 H. 6. 29. And by the Court it was adjudged quod respondeat ouster. But otherwise it would have been, if there had been a special imparlance tam ad breve quam ad narrationem. And it was prayed to have Iudgement upon the verdict. And by the Court it was said, that they should have Iudgement. And that there might be two Iudgements in this action for the several parts of the land.

Sir Francis Worthly against Sir Thomas Savill.

HE brought an action against Sir Thomas Savill for batterie; In which it was found for the Plaintiff in not guilty pleaded, and 3100 l. damages was given. Which verdict was last Term. And in this Term it was shewn to the Court, that the Declaration entred upon the impar­lance roll, was without day, moneth, and year, in which the battery was committed. Which was observed by the Atturneys, and Counsel of the other part, and that a blank was left for it. But afterwards in the time of this vacation in the night time, the Key of the Treasury being privi­ly obtained by a false message from Mr. Brownlow Prothonotary, the record was amended, and some things, were interlined to make it agree with the Issue Roll, which was perfect; And these things were af­firmed by severall affidavits. Whereupon Atthowe moved, that those parties privie to this practice might be punisht, and that the record might be brought in Court and made in statu quo prius. Crew on the other side demanded Iudgement for the Plaintiff, for whether there is an impar­lance Roll or no. If none, then the matter is discontinued, and that ayded by the Statute: If you will have an Imparlance Roll, then I think these omissions are amendable by the Clarkes although after ver­dict. Harvey, The Course of the Court is, (for I am not ashamed to de­clare, that I was a Clark for 6 years in Brownlowes Office) If the Declara­tion was with a blank, and given to the Attourney of the other side, if in the next term, the Atturneys of both sides agrée upon the Issue Roll, Vp­on this agreement, the Clark for the Plaintiff had always power to a­mend the Declaration; Because, that by the acceptance of the other side there was an assent. Richardson, The imparlance Roll is the [Page 143] original Roll, and ground for the Issue Roll, which is the Record of the Court: And I agrée that it is reason to amend the nisi prius Roll. Har­vey gave an excellent reason, whereupon the Pregnotaries were deman­ded, what was the course of the Court. Brownlow, Gulston, and Moyle all agréed that the course is; That an im­parlance roll may be amen­ded if no re­corda [...]u [...]. That if no recordatur or rule be to the con­trary, and a Declaration delivered with blanks, the Clarks have always amended it. And Brownlow shewed where the book of 4 E. 4. was objected to the contrary, and he had séen the Record, and there was a recordatur granted. Richardson, Debt is brought against one as heir, and there is omitted ad quam quidem solutionem haeredes suas oblig. shall that be a­mended. And it was said by all the Pregnotaries it should. And Moyle said that in 13 Iac. there was a case between Parker and Parker, upon a trover and conversion, and the Imparlance Roll was entred with a blank as here, and upon non-guilty pleaded, it was found for the Plaintiff, and I fear it will be mended. By the Court this difference will reconcile all the books, scil. where there is a recordatur, and where not. It was a­greed by some one of the Iudges, that a recordatur might be granted out of the Court. And so Brownlow cited a president, Pas. 4 E. 4. rot. 94. to the same purpose. And so Iudgement was given for the Plain­tiff.

Starkeys Case before.

IVdge Yelverton now being in Court, the Counsel of the Plaintiff prayed his opinion, and shewed the reasons given before to have Iudge­ment. And Yelverton said, that the word Iudas here, did not bear an a­ction. It was two of the Apostles names; and the betrayer Iudas was a Traytor to Heaven, and therefore this reason should not be drawn to earth, to cause Actions between men. But for the word common Bar­rettor, being spoken of a common person is not actionable, until conviction, he is not punishable for it. If he called him convicted Barrettor, Convicted Barrettor to a common per­son is actiona­ble. it is actionable: But being spoken of an Atturney, or an Officer of Iustice, it is actionable. Littleton tells us what they are, they are meant stir­rers up of unjust sutes, which is a grand offence in an Atturney. And they put the case of Sir Miles Fleetwood. One called him the Kings De­ceiver, which was adjudged actionable, and that it ought to be under­stood of his Office. And for that in the principal case Iudgement was given for the Plaintiff.

Iohn Costrell against Sir George Moor.

JOhn Costrell and Ioan his wife brought an action upon the Case, against Sir George Moor, and declares, That whereas the said Iohn and Ioan were seised of a Messuage and lands in right of his wife Ioan, A man having land in right of his wife in trust. they cannot both joyn in the action, but the Husband only. and that the said Iohn and Ioan, and all their predecessors, time out of mind, &c. had common in such a waste, which is the soyle of the Defendant, pro omnibus a veriis levantibus & cubantibus, &c. and the Defendant had inclo­sed 20 acres of the said waste, and made a fish pond of it there, so that they could not take the profits, as before with their cattel: Vpon the general issue pleaded it was found for the Plaintiff. And Crawley moved in ar­rest of Iudgement; For that the prescription is ill made, and that the Husband and wife cannot joyn in this action, but the Husband might bring the action only. And also where it is said, that they cannot take the profits with their Cattel, when the wife cannot have Cattel during the Coverture. Richardson said the prescription is good, and it would have been better if he said all those whose estate the wife had; But this tantamounts, and is as well in substance, for that goes meerly to the e­state [Page 144] of the Wife, Trin 5 Car. Com. Banc. which was granted. But for the second, I doubt if the Wife may joyn in this Action. If a man be seised in right of his Wife, he may have Trespass, for Trespass done upon the Land, there the Wife shall not joyn, for she cannot have the dammages if she sur­vive. And there is no difference between this Case, and the principal Case; It is Trespass on the Case, and for the personal and temporary trespass, and such for which the Wife should have the Action after the death of the Husband, unless that the Defendant continue the Pond, &c. I agree if Battery be done to the Wife, they both shall joyn, for the Wife might have had the Action if she survived. And so it was resolved in the Cooks of Grays-Inns Case they might joyn. For the wrong was done to the Wife. But here the Husband only lost the benefit of the Com­mon, and the wife could not take it with her Cattel; For she had not any Cattel during the coverture. And Yelverton also was of the same opini­on. But Hutton said, In a Quare impedit the Husband and Wife shall joyn; And yet the avoidance goes to the Executors of the Husband. Hitcham, In an Ejectione firm. or ravishment of Ward the Feme joyns, quod concessum fuit. Yelverton said, that in 4 E. 4. it is express that the Wife shall not joyn in trespass done upon the Land of the Wife, for dam­mages shall be recovered in lieu of profits.

Moor against Everay.

MOor and his Wife brought dower against Everay. To parcel he pleads non tenure, and to the other parcel ne unque seise de dower, which goes to the tryal, and there the Tenant makes default, and upon that a petit cape is awarded, and now at a day in bank, one Lumbard prays to be received upon the Statute of Gloucester to save his term, &c. But Henden alleged to the contrary. First, That Statute is not to this purpose in force by the Common law. Tenant for years cannot falsifie 6 Rep. Periams Case. Then because it was hard that a recovery should be had by Covin, and the Lessee for years without re­medy for his term, the Statute of Gloucester was made, which gives a re­ceipt for the Lessee for years, after the Statute. 21 H. 8. was made, which gives the Lessee power to falsifie. The Common experience of the Court is, If an habens facias seisinam issue, there is not any saving of the term of Lessee for years. Hil. 39 Eliz. in Bests Case, A receipt was moved and denied. For if the Lessee had a good term, he might have trespass for entry upon him. Littleton though says in his Chapter of Tenant for years, that he shall be received. Hutton, The Statute of Gloucester aids them only, who knew and had notice of the Recovery, 21 H. 8. aids them who had not notice of it. And it is better to prevent mischief than to remedy it after, and as to that a final Bar. I was of Counsel in some Cases, where the Lessee was received. And if the Lease be not good, the Lessor may avoid it by Plea (scil.) Traverse or Demurer; And I remember the issue taken upon the Term, and found against the Termor. And it was Mr. Fulhams Case against Sergeant Har­ris. Sed adjournatur.

Fawkenbridges Case.

IT was moved (he having Iudgement before) to have costs, where the Court doubted, because that it was a special Verdict: and the Sta­tute of 23 H. 8. cap. 15. says, That where a Verdict is found against the Plaintiff. But in a special verdict, it is neither found for or against. But it may be said, that when it is adjudged against the Plaintiff, then it is found against him. And 4 Iac. cap. 3. which gives costs in an Ejectione firmae, had the same words if any verdict, &c. But it may be answered, [Page 145] That as in Demurrer no costs shall be recovered, no more in a special ver­dict, For that the Plaintiff had a Prohibition causam litigandi. And the Statute may be intended of vexatious Sutes, &c. But Brown­lowe said, that he had many times given costs upon the Statute of 4 Iacob. For that the Prothonotaries were commanded to search Presidents.

The University of Cambridge.

THe Vniversity of Cambridge claimed by their Charter to be Clarks of a Market, and that they had power by their Office to make or­ders, and execute them. And they made an Order that no Chandler should sell Candles for more than 4 d. ob. the pound. And because that one R. sold for 5 d. he was imprisoned, and a Prohibition granted. But it séemed that an Habeas corpus was more proper, For he was not pre­sented.

First, For that they could not imprison without course of Law.

Secondly, Because that as Clarks of a Market, they have nothing to do with but Victuals, and Candles are not Victuals.

The Sheriff of Surrey against Alderton.

THe Sheriff of Surrey returns a rescous against one Alderton. That whereas there was a Iudgement had against B. and a fieri facias a­warded upon that, by vertue of his Warrant directed to R. to take the Goods of B. By vertue whereof such a day the said R. diversa bona & ca­talla ipsius did levy, and had them in his custody, No rescous can be of Goods. and one Alderton re­scued them from the Bayliff, contra voluntat. ipsius Rich. The return is naught.

First, For that, that it is rescued from the Bayliff.

Secondly, It is of Goods whereof a rescous cannot be returned. Yelverton, contrary in both, If a man hinder the Sheriff to make exe­cution, and assault him, will not a Rescous lye in such a Case? Ri­chardson, Hutton, and Henden, that it will not, That no Rescous can be upon a Fieri facias, but the party shall have an Action upon the Case. And Rescous lies only upon a Capias, which lies against the Person himself.

Iohnsons Case.

IF a Prohibition be granted upon matter at Common law, as upon a per­sonal agreement between Parson and Parishioner for his Tithes, and not upon matter within the Statute of 2 E. 6. 13. the suggestion shall not be proved within the 6 months as the Statute limites, and as it is agreed by the whole Court.

Common Recovery.

A Common Recovery was suffered, and a writ of Entry was not fi­led: and for that a writ of Error was brought. And Hitcham mo­ved that it might be examined whether any writ was filed or no. But the Court denyed that; But if it might appear upon Record, [Page 146] That there was a writ filed, Mich. 5 Car. Com. Banc. then they would consider, whether a new one should be filed or or not. And they said that the Recovery should be exemplified, by the Statute of 23.

Knight against Symonds.

THe Plaintiff being cast put this exception in to avoid costs, that the Venue was mis-writen, and it was allowed by the Court. And be­cause the Defendant might have Iudgement, for that he cannot have costs. And Richardson said, that in the Kings Bench, one Grimston brought an Action upon the Case against one Hostler, and it was found a­gainst him, and the Plaintiff alleged that the Declaration was not suffici­ent, for the prevention of costs, and allowed. But if the Plaintiff be non-sute▪ he shall not have benefit of the Exception to prevent costs, by reason of the unjust vexation.

Harris against Lea.

HArris Warden of the Fleet is Plaintiff against Iohn Lea in Debt upon an Obligation, where the Condition was, That one Lea should be his true Prisoner, and pay every month for his diet, and the fees due to the Plaintiff by reason of his Office. The Defendant pleads the Statute of 23 H. 8. and that this Obligation was made for the ease and favour of the prisoner by colour of his office. And the Plaintiff re­plyed, that the Fleet is an antient Prison, and that time out of mind, &c. they used to take such Obligations, absque hoc, that this Obligation was made for the ease and favour contrary to the Statute, That the War­den of the Fleet and Westm. never may take Ob­ligations for Dyer, &c. upon which the Defendant demurred generally. But Atthowe prayed Iudge­ment, for that that the traverse waives the matter before, which was but an inducement, and in 23 H. 6. There is an Exception of the Warden of the Fleet, and the Warden of the Palace of Westminster, That they might take such Obligations which they used; to which the Court a­greed. And for that that the Traverse ever destroys the Bar, the De­fendant ought to have joyned in that, upon which Iudement was given for the Plaintiff. If, &c.

Wardens Case.

Ej [...]ctments not he of a Mannor.IT was said by the Court, Although an Eject. firm. lies of a Mannor or of the moyety of a Mannor, if Attournment of the Tenants may be proved, yet it is not safe to bring an Ejectione firmae of a Man­nor, &c.

Hides Case.

IN one Hides Case the Defendant was out-lawed before Iudgement, and procures a Charter of pardon, and the Question was, whether he should put in bayl. And it was agreed by the Court, that he should put in bayl. For although the Statute of 5 E. 3. cap. 12. goes only to a Char­ter of pardon, not to the reversal; Yet by the Equity of that Statute he must put in bayl: for it is that he stand right in Court, which is, that he appear and put in bayl. And although the use of the Court hath been o­therwise, yet perhaps in some Cases the Plaintiff never required bayl. New Entries, title Pardon, pl. 1. So if an Out-lawry be reversed by 31 Eliz. for want of Proclamation; The Defendant puts in bayl at the Com­mon law. Manucaptors were only fined for the Defendants default. But now the use is for the bayl to enter into a Recognisance, &c. And if [Page 147] at Common law upon a scire fac. he revive the sute, he shall find Manu­captors, by the same reason he now found bayl.

Wood and Carverner against Symons.

THe Defendant here in the Prohibition libels for tithes of Hay in the Spiritual Court. Intrat. Hil. 3 Car. & Pas. 4. Car. rot. 454. The Plaintiff suggests that the Hay was grow­ing upon Greenskips, Deales, and Headlands, and that within the same Parish there is a Custom, that Parishioners in a meadow there used to make the tithe Hay for the Parson, and in Consideration of that to be discharged of all tithes of Hay growing ut supra, and also that for the Hay of the land, no tithe ought to be paid of such Hay; but does not aver that the Hay was growing upon Greenskips, &c. And an exception was taken by Henden: First, That the exception is double; The Custom and Com­mon law: But by Yelverton, that is not material; For you may have 20 suggestions to maintain the suggestion of the Court. But Richard­son was against that, that a suggestion might be double here, for the sugge­stion of the Common law is a surplusage. As in Farmer and Norwiches Case here lately. One prescribes to be discharged of tithes, where the law discharged him, and so was discharged by the Common law. Second ex­ception is, that he does not apply the Custom to himself in the suggestion. For he does not shew that the Hay grew upon the skips, upon which a Plow might turn it self; That had laid the Custom. And for this cause by the whole Court, the suggestion is naught. And here Richardson mo­ved, how that two should joyn in a Prohibition. Yelverton, if they are join­ed in the libel, they may joyn in the prohibition, and that is the common practice of the Kings Bench. Richardson, the wrong to one by the sute in the Spiritual Court, cannot be a wrong to the other. Hutton, they may joyn in the writ, but they ought to sever in the Declaration, to which Harvey agreed. Yelverton, the Prohibition is the sute of the King, and he joyn tan [...]. as in a writ. Richardson, But it is as the sute of the party is, and if any joyn here, I think good cause of consultation. Ri­chardson. It is against the profit of the Court to suffer many to joyn; And it is usual in the case of Customs of a Parish in debate, to order procéed­ings in the 2 Prohibitions, and that to bind all the Parish and Parson. And it was said by them all, That the consideration of making Hay is a good discharge, because it is more than they are bound to do.

Rises Case.

IN evidence to the Iury, it was agreed clearly, that a Covenant to stand seised of as much as should be worth 20 l. per annum, is méerly void. And so by the Court it was lately adjudged.

Flower against Vaughan.

FLower sued Vaughan for tithes of hay, which grew upon Land that was heath ground, and for tithes of Pidgeons. And by Richardson, If it was mere waste ground, and yeeld nothing, it is excused by the Statute of payment of tithes for 7 years; But if sheep were kept upon it; or if it yeeld any profit, which yeeld tithes, then tithe ought to be payed. As the case in Dyer. And for the Pidgeons which were consumed in the house of the Owner; he said that for Fish in a Pond, Conies, Deer, it is clear that no tithes of them ought to be paid of right; wherefore then of Pidgeons? Felony to take Pidgeons out of a Dove­coat. quod nemo dedixit, and a day was given to shew wherefore a Prohibition should not be granted. And the Court agreed, that it was Felony to take Pidgeons out of a Dovecoat. And afterwards a Prohibition was gran­ted, but principally that the Pidgeons were spent by the Owner. But by Henden they shall be tithable if they were sold.

Clotworthy against Clotworthy.

IN Debt upon Obligation against the Defendant as Heir to Clotwor­thy (scil.) son of Clotworthy, without shewing his Christian name. And Iudgement was given against the Defendant upon default, and upon that Error brought, and that assigned for error, and after in nullo est er­ratum pleaded; But Henden moved that it might be amended, and he ci­ted one Wosters and Westlys Case, Hil. 19. Iac. rot. 673. where in a De­claration in Debt upon an Obligation, there was omitted obligo me & hae­redes, and after was amended. And he said, that in this Case, the Plea roll was without Commission of the Christian name, then by the Court the Plea roll may be amended by the Imparlance roll: but not è converso. And the Case of the Obligation is the misprision of the Clark; But here there was want of instructions.

Dennes Case.

IN Dennes Case of the Inner Temple, issue was joyned in a Prohibition whether the Will was revoked or not, and for a year the Plaintiff does not prosecute, nor continue it upon the Iury roll; And by the Court, now it is in our discretion to permit it to be continued or not: which the Prothonotaries agréed.

Mosses Case.

IN one Mosses Case in an Assumpsit for debt which was out of the 6 years limited by the Statute of 21 Iac. part within the time. If the Iury found for the Plaintiff, and taxed dammages severally; The Plaintiff recovered for that that is within the time, and not for that that was with­out. But if dammages are intirely taxt, the Plaintiff cannot have Iudge­ment of some part. Which was granted by the Court. And by Richard­son, where an Action is brought upon an Assumpsit in Law, and the Re­quest is put in, which is not more than the Law had done, the Request there is not material; But where a Request is collateral, as in Pecks case; there it is material. Hutton said, that in Pecks Case it was agréed by the whole Court, that a Request was material, but they conceived that the postea requisitus was sufficient; For which afterwards it was reversed in the Kings Bench. Richardson said, if one sells an Horse for money to be paid upon Request, and no Request is shewn, he can never have Iudg­ment, which was not denied.

Boydens Case.

BOyden Executer of Boyden brought a scire facias to execute Iudgment given against Butler for the Testator, which was directed to the She­riff, & upon nihil habet returned, & testatum, a scire fac. is directed to the She­riff of S. who returns Ployden terretenant of the Mannor which Butler was seised of at the time of the Iudgement. Ployden appears and demands Oyer of the scire fac. and of the return, and pleads that long time before A. B. and C. were seised of the Mannor in fee, and before the first return makes a feoffment to the use of one Francis Boyden for life, who makes a Lease to the Defendant for 80 years. And because that Francis Boyden aforesaid is not returned terretenant, demanded Iudgement of the writs aforesaid. Bramston said, that the conclusion here to the writ is naught: for a writ shall never be abated, where we cannot have a better. The mat­ter here is the return of the Sheriff, that Mr. Ployden is terretenant, to which he makes no answer, but by Argument; And in all Cases where a [Page 149] special non tenure is pleaded it is used to be a Traverse, upon which issue may be taken. 8 E. 4. 19. 7 H. 6.16.17. But in our case no issue was ta­ken, and here all the matter alleged may be found, &c. For the matter, al­though general non tenure is no plea, yet a special non tenure may be plea­ded, 7 H. 6. 17. 25. 8 H. 6. 32. In real actions non tenure of a Franktene­ment is good. But here a Chattel is only in question. 2ly. he may plead non tenure of Franktenement, where the Lessee shall be concluded, and bound; But here here Edw. Boyden is not bound. Crawly said, that the plea is good, and for the matter, the difference is between the general and the special non tenure. The general non tenure is no plea, but in a praecipe quod reddat as it is; But a special non tenure is a good plea in a scire facias nomina praecipe. 31 H. 6. non tenure, 21 Statham scire fac. The Plain­tiff in a scire fac. does not demand Land but execution. Yelverton, In Holland and Lees Case, in the Kings Bench this point. It was adjudged that the Writ shall abate. Richardson, This Writ is a judicial Writ, and by that Plea a better Writ given you. For where before it was against the Terre-tenants generally, he might have now a particular scire fac. a­gainst Francis Boyden: and both waies are good, either to demand Iudge­ment of the Writ, or Iudgement of the Court, if execution ought to be against him; quod concessum per totam curiam. And agreed also by the Prothonotaries, that a special scire facias might issue against Francis Boyden.

Turner against Disbury.

TUrner against Disbury in Trespass; Where the Writ was quare domum & clausum fregit, but the Declaration was, quare domum, & clausum, & canem molossum cepit, which was found for the Defendant. And it was moved by Hitcham for the Plaintiff in arrest of Iudgement to prevent costs for it; That there is not a material difference between the Original and the Declaration. For that that there is more in the Declaration than in the Original; And then here is no Original to war­rant part of the Declaration. But this variance was between the Origi­nal it self which remained with the custos brevium, and the Declaration; For the Original as it was recited in the Declaration, according to the usage in this Court, agreed with the Declaration. But by the Court, it is after verdict. For the Original for part cannot be applyed to this Declaration, and it shall not be taken as the Original for it; And then there is no Original, which is aided by the Statute, and so it had been frequently ruled. By Harvey it was one Blackwells Case here, where the Writ was bona & catalla cepit, and the Declaration was (viz.) unicum discum plumbi. And that was ruled to be no Ori­ginal.

The Wife of Cloborn against her Husband.

THe Wife complains against her Husband in the Spiritual Court Causa saevitiae, For that he gave her a box on the ear, and spat in her face, and whirled her about and called her damned whore. Which was not by Libel, but by verbal accusation, after reduced to writing. The Husband denies it, & the Court ordered the Husband to give to his Wife 4 l. every week, pro expensis litis and Alimony. Barkley and Henden moved for a Prohibition. The Sute is originally Causa saevitiae, and as a Case that they assesse Alimony. And now for a ground of a Prohibition. It was said, that Cloborn chastised his wife for a reasonable Cause, by the Law of the Land as he might, which they denyed, and said, that they had Iurisdiction in these matters de saevitia, &c. And afterwards that the wife departed, and that they were reconciled again. And [Page 150] then that reconciliation took away that saevitia before as reconciliation after elopement. Richardson, It was said here, that the Sute was now held and without Libel, but that is no ground of a Prohibition, for he proceeded upon that matter reduced in Articles, and we cannot grant a Prohibition if they proceed to their form. For we are not Iudges of their form. But if they will deny a Copy of the libell, a Prohibition lies by the Statute. And you you'l say, that an Husband may give rea­sonable chastisement to his Wife, and we have nothing to do with it: But only that the Husband may be bound to his good behaviour by the Com­mon law. And the sentence in causa saevitiae is a mensa & thoro, and we cannot examine what is Cruelty and what not. And certainly the mat­ter alleged is Cruelty; For spitting in the face is punishable by the Star-chamber. But if Mr. Cloborn had pleaded a Iustification, and set forth a Provocation to him by the wife, to give her reasonable castigati­on; Then there would be some colour of a Prohibition. Henden, We have made such an Obligation, as it is absolutely refused. Hutton, Per­haps he is in contempc, and then they will not admit any Plea. As if one be out-lawed at Common law, be cannot bring an Action. But the Plain­tiff they advised to tender a Iustification, and if they refused it, then to move for a Prohibition.

Bachus and Hiltons Case.

HUtton cited one Bachus and Hiltons Case in the Kings Bench, Where a Bill was of Lands 17 Maii, and the Declaration 20 Mail, which was after, and so the Original before the trespass, and after verdict. Because it was mistaken, Iudgement was stayed.

Mortimores Case.

AMhurst desired the opinion of the Court in this Case. Copiholder is ousted, and so the Lord disseised, and the Copiholder releases all his right to the Disseisor, and dies, his Heir enters, and brings trespass a­gainst the Disseisor, who pleads his Franktenement. And by the Court the Release is clearly void, the Disseisor never being admitted Copihold­er. But they ought not to teach him how to plead. And Hitcham cited a Case in which he was of Councel; Two Copiholders in fee, the one re­lease to the other by Deed. And that was adjudged a good Release, which was now also agreed by the Court.

Earl of Mulgrave Ratcliffes Case.
Intratur Exchequer Chamber, 18 Iac. Rot. Argued by Sergeant Atthowe.

D'e Mercurii post festum Sanctae Margaret. 17 Edwardi 2d. Iohn de Malo lacu gave to Peter de Malo lacu, and the Heirs of his body, the Castle and Mannor of Mulgrave, by divers mean conveiances the Land came to Sr. Ralph Bigod 11 Ian. 6 H. 8. Sr. Ralph Bigot made a Fe­offment to William Euer and others to the use of his last Will, and died, and the right of the Land, together with the Entayl and the use, also af­ter the Will performed▪ descended to Sr. Francis Bigot.

10 Dec. 28 H. 8. Sir Francis Bigod made a Feoffment to Iohn and others to the use of himself and Katherine his wife, and the Heirs of their bodies. and they had issue Ralph Bigod and Dorothy, then the Statute 16 H. 8. [Page 151] cap. 13. for forfeiture, for treason is made, and 26 Maii, 29 H. 8. Sir Francis Bigod was attainted of Treason committed 7 Ian. 28 H. 8. and was executed, and Katherine survived. H. 8. by the special act of attainder of Sir Francis Bigod, and his forfeiture is made, 4 Novem. E. 6. Ralph Bigod Son of Katherine and Sir Francis was restored in blood, and died without issue. Dorothy maried Boger Ratcliff, and they had Issue Francis Rat­cliff.

5 Octob. 8 Eliz. Katherine died, and Francis Ratcliff died, having issue Roger Ratcliff 1 Febr. 34 Eliz. Francis Ratcliff, Roger Ratcliff entred 11 Aug. 33 Eliz. Office found for the Quéen.

28 April. 34 Eliz. The Quéen by Letters Patents granted the same to Edward Lord Sheffield and the Heirs males of his body begotten, at the rate of 9. 18. 3 d. Roger Ratcliff upon the whole matter sued his Monstrare de droit in the Exchequer, and had Iudgement for him, and Writ of Er­ror being brought by the Lord Sheffield to reverse the Iudgement for­merly given in the Case.

Points 2. First whether Francis Bigod who had Estate in special tayl in possession, had also any right in the antient entayl left in him at the time of his Attainder, or whether it were not in abeiance in respect of the Feoffment made 21 H. 8. and whether that right did accew unto the King by the Attainder of Francis, and the general Statute of 26 H. 8. cap. 13. or by the particular act of Attainder of 31 H. 8. and I am of opi­nion, that there was a right of the old entayl remaining in him, and that the King ought to have it, together with that estate in special entayl in possession freed and discharged thereof as long as the Estate entayl endured.

In the handling of this point, I shall occasionally speak of rights of Actions real, given or not given to the King upon Attainder of Treason, by force of Statute 26 of H. 8. or of the general Statute of 33 H. 8. for this Statute is so near of kin to that conservation of antient Rights, that we must foresee that we do not in the Iudgement of this Cause preju­dice the Statute ex aliqua.

Secondly, Whether there be a Remitter in the Case after Attainder of Treason, and if there be such a Remitter here, when the Remitter begins and in whom, whereas nothing hath as yet been distinctly said. I am of opinion, that there ought to be no remitter in this Case to the old Entayl, and thereby I adde more, that if there be a remitter, it is but for a time, By the Office following it is remitted and ended, I must profess that whatsoever I have thought upon this Case, and advised upon it with my self, I have met with two strong affections, Zeal and Indignation; Zeal in the behalf of the King to preserve the antient Rights of the Crown, and against the invasion of Rebells and Traytors. Bigod that sometimes brought a puissant Army into the field to depose the King, failing in that enterprize, now to rise in Question against him, that what he could not gain by the sword, he might supplant by the Law; for though Ratcliff bear the name of this Case, yet I see nothing but the hand of Francis Bigod his Estate, his Right, his Title, Land per descent that maintains it, therefore let it not seem strange that I am warm in this Case, for Zeal and Indignation are fervent passion, and I do profess to give Prerogative to the rights of the Crown in my care and vigilancy, and it is nobile Officium judicis & debitum due by Oath of Office to watch for him who works for us, ne quid detrimenti capit respublica, and if Charity begins at it self, so ought Iustice to do, that the King who grants Iustice to all should not be wanting to himself. Because I desire to be plain and clear in my Arguments, I will make the Questions as single as is possible, for multiplex judicii nunc parit consusionem, et quae­stiones quo sinpliciores eo laudiores, ergo will I make this first point a single [Page 152] Question. Tenant in tayl of Land in possession makes a Feoffment in fée, Question, whether any right of the Entayl remaineth in him still a­gainst his own Feoffment, and to what ends and uses, and what he may do or suffer by force of this right in this Question. I take no exception at the validity of the Feoffment made by Francis Bigod at cestui que use in tayl by the Statute of R. 3. and not the then Tenant in tayl in possessi­on, yet notwithstanding taking the Case at the worst, I am of opinion, that this Feoffment gives away all the Estate of the Tenant in tayl; and as concerning the Issue in tayl inheritable to that Entayl, and to him in the reversion, there remains still in the Issue a right to that Entayl by force of the Statute de bonis condi. and it is confessed on both sides, that there remains a right of that Entayl by force of the Statute, for their use, and good, and whether it be for the Lessor himself sleeping till there be an Heir to claim it, or in the preservation of the Law which is termed an abeyance, or in nubibus is the Question, by which it appears that the exact enumerations of Rights, as jus habendi, redimendi, percipiendi, possiden­di, recuperandi, & finendi, inferreth that there was no right, because it was none of these rights, makes but a noyse, for there is jus recuperandi when the time commeth, but it is in the mean time till the person inheri­table appear, which may put this right in execution, which the Lessor cannot do against his own Feoffment, it is the only Question, and upon this exact division of Rights, they have left out one whole member of Rights, such are the Rights to depart with an Estate, and not to get or keep are omitted; such are the Rights to give or release or jus extin­guendi, or jus renunciandi, to renounce or disclaim, of which kind this very right is, That Tenant in tayl hath after the Feoffment, which had not discontinued finally to Bar the whole Entayl; for by that Right which is left after the Feoffment, the Estate tayl may be recontinued again, for the root of the Entayl is left alive still. Now see the reason of this, and let the Statute of West. of Estates tayl, and the pleading and practice upon that Statutes, which are the expositions of Law judge, the Statute recites the form of Fee-simple conditional which now are intayls, and then sheweth 2 mischiefs, that the Donces after issue had power to alien and disinherit their Issues, and that the Donors were defeated of their reversions, both being against the minds of the Givers, and the remedy provided in these words, It is ordained that the Will of the Giver according to the force of his Gift expressed in his Deed, shall be from henceforth observed, so that they to whom the Land was given under such Conditions, shall have no power to alien, but that it shall remain to their Issue after death, and shall revert to the Donor after death, and if a Fine be levyed of such Lands finis ipsi jure sit nui­lus, but if neither Fine or Feoffment be void, for they are but voidable, not as before when they bound both Heirs and Donors absolutely, so that it appears, whereas before the Statute the Donee had power absolute post prolem suscitatam; and so totally and in a sort rightfully to disinherite their Heirs, the Act being not against the rules of positive Law, to bar to all purposes aswell his Issue as the Giver, as also himself.

Now since the Statute that very power of Alienation remaining a­gainst himself, not restrained by the Statute, though he may still disturb and discontinue it against them by exposition, which the Statute hath re­ceived which as Littleton saith Discountenance cap. 171. is a wrong to the Issue and the Giver, So that upon this Statute I reason thus, that the Tenant in tayl hath the whole Estate in tayl, and all the right of it in himself, and may finally and totally bar it as well against his Issue, as against himself by Common recovery, but by Feoffment or Fine he could not, by reason of this Statute. And that ergo summum jus, or verum jus intayl, though it be discountenanced, is not barred by the Feoffment, [Page 155] for it is not in his power by that kind of conveiance, and a non posse ad non esse valet argumentum necessario negative, so that the Argument stands thus, What the Tenant in tayl had and hath not parted withall remaineth in him still; but the main right in tayl he had, and hath not parted, ergo it remaineth in him still; for qui non habet potestatem alienandi, habet necessitatem retinendi. If you say that he hath parted with it, I deny it, for the Statute hath taken from him that power by Fine or Feoffment only, finis ipse jure sit nullus, which before he could have done; and the practice of the Law is answerable to this, both towards the Donor and towards the Issue; The Donor hath two things whereby he may be be­nefitted and prejudiced, the one in his Rent reserved, the other in his reverter, but the Issue prejudiced only in his Descender. Now for the Donor, when the Donee hath made a Feoffment and hath excluded himself from all rights as concerning himself, yet the Donor shall by force of this Statute, which at the Common law he could not. And if the Donor will release all his right in the Land to the Donee after a dis­continuance by Feoffment, his release though it will extinguish no right to the very Land, yet it will extinguish Rents, which proves that the Donee by his Feoffment cannot dismiss himself of all his right, but that by the Statute of West. his alienation is disabled as to that, but that the Donor may avow for the Rent. But wheresoever Tenant in tayl suf­fers a Recovery, or levies a Fine, the Rents together with the entayl cea­ses. And the answer as to that is imperfect to resemble it to the Case of te­nant in see simple doth alien, and yet the Lord may avow upon him, for the Cases have no resemblance, for as Littleton well distinguisheth, when Tenant in fee hath departed with his whole Estate, he is no more Te­nant to the Lord to avow upon; though the Lord if he Will may a­vow upon him for the arrerages, and if the Lord after future alienati­on release to him all his rights in the Land, the Release is void to re­lease the Rents and Services, in all which it differs materially from the other Case, and it is an equall proportion of the Law, That when the Lord aliens his signory, the Tenant is to he acquainted, that all Arrea­rages may be paid, that he may have no after-reckonings, for after no­tice and the Arrerages paid, the avowrie vanisheth. Now for the Heir in tayl claiming from his Ancestor after his Feoffment by descent from him, thereby allowing a right to remain in him against his Feoffment; The Case is more difficult, because during the Feoffor there can be no motion of that right, neither by the Feoffor who hath hard himself, nor his Issue, because his Right is not yet come; yet let me put this Case up­on the Statute 11 H. 7. upon the opinion of Mountague Chief Iustice. If Tenant in tayl Iointress make a Feoffment, the person to whom the land doth belong after her death may enter and hold it accor­ding to his right. Now till such Entry there is a discontinuance, but when the Issue enters he is an Heir intayl, et quasi eins per discent. But now ge­nerally when Tenant in tayl hath made a Feoffment and dies, the Heir shall bring a Formedon in the Discender, and shall count that descendere debet from that Ancestor that made the discontinuance performam do­ni, and therefore the Writ saith discendit jus, it is as much devenit jus.

It is true that regularly a Feoffment bars all former rights and future rights; yet respect to be had to Estrangers. Albanies Case, 2 Rep. Ar­chers Case, 1 Rep. 66. 9 H. 7. And therefore in Archers Case, Lands were demised to one fore life, remainder to his first Heir male; Tenant for life made a Feoffment in fee and died, his next Heir was bar­red of his right for ever by the Feoffment.

A man seised of Land by right of his Wife, makes a feoffment in fee, and then the Estate is made back to the Wife, she is thereby remitted, and her Husband shall never be Tenant by the Courtesie, and therefore [Page 156] well resolved, if Tenant in tayl discontinue, and levy fine with Pro­clamations, is no bar to the Estate tayl.

Now this Case is irregular, because it standeth by Act of Parliament, which is able to make the same Act good to one purpose or person, and void or voidable to another, as the Statute of Ecclesiastical persons, and binds the party, but is void or voidable against the Successors, and shall nevertheless when they enter, be in by succession.

And that there is still a right remaining in the Tenant in tayl, appears in that he hath still in him a power to bind it more finally and totally by fine and recovery if he pursue them rightly, and therefore note Cupple­dikes Case. If Tenant in tayl with divers remainders over make a Feoffment, and Feoffee vouch not the Feoffee Tenant in tayl in pos­session but the first in Remainder, by the Statute the Feoffees are not bound, but are remitted; and Maunsells Case there is cited, where one re­covery is a bar to 3 several Intayls with double voucher.

And this is called jus extinguendi; which he could not extinguish and dis­charge, if not in him and in his power; and therefore there is no cause to frame Abeyances needless and in vain, but the Law allows not nor admits not but in Cases of necessity, as in the vacancy of Bishops, Par­sons, and other Ecclesiastical persons, or the like Remainders to right Heirs upon Freehold, abeyances are not allowed, but where the original Estate required them, or where the consequences of Estates and Cases do require them. As for the first in Case of single Corporations, Bi­shops, Deans, and Parsons which must dye, and a vacancy of freehold or a Remainder to the right Heirs of I. S. yet living. Or Secondly in Case of congruity, as if a man gives a Warranty and die, his Heir in ventre sa mere may not be vouched, but if there be Heir he may be vouched, and a Vouchee may take and plead a Release quasi tenens, or may lease a Fine to the Defendant of the Land in Question.

But for Estates that of their own nature and origination, creation, are perfect and intire as this Estate entayl is, the Law permits not vain affected abeyance or fictions by the voluntary Act of the party, as this, to no good, which should preserve a right to serve the Heir, and to de­fraud the King, which was one of the principal reasons for the making the Statute 27 of H. 8. for the transferring of uses into possession; Vses being but a kind of abeyance and shift to kéep the profits to the use, and defraud the King and Lords of their Escheats, and them that had a right to know against whom to bring their Actions. Littleton was confounded in himself when he made an abeyance of totum statum suum, and yet made an Estate for life, which is condemned in Walsinghams Case by the Iudges. Again, though fictions take place amongst common person, the King is not bound by fictions, and therefore the King is not bound by his remainders by re­compence feigned upon a common recovery, warrant collateral binds not the King, but warranty with real and actual Assets, nor the King is not bound by Estoppels of his own recitall certa scientia, as it is in Altenwoods Case.

And I hold plainly, that as the Land in possession is distinctly and lite­rally given to the King, so the right is as literally directly and plainly gi­ven to the King by discharge of that ancient right whereof formerly it was bound; for when the Statute saith, that the King should have the Lands, saving the right of all persons, other than the Offenders and their Heirs, and such as claim to their use, it is plain, that the eye of the Statute was not only upon the Land in possession but also the rights to the same, the one in point of Giving, The other in point of re­nouncing.

The Land in possession could be but in one, that is in the Offenders, and so it was given, but the rights to the same Lands might be in sun­dry [Page 157] persons in the Offendor, or in his Heirs, or in Strangers.

Now when the Statute saith the King shall have the Land without sa­ving the Rights of the Offendors or his Heirs, or any claiming to their use, Tenant in tayl discontinues, and after disseiseth his Discontinuee, and is attainted of Treason, he forfeits his Estate gained by the Dissei­sin, and also his right of Entayl, for he cannot take benefit of his an­cient Right against the King, by force of the Statute of 26 H. 8. and 32 of H. 8. and this agrees with the reason, and the rule in the Marquess of Winchesters Case; for if the Traytor have right to a Strangers land, that shall not be given to the King for the quiet of the Stranger being Pos­sessor for the quiet of his possesion, but such right shall be given to the King being Possessor for the quiet of his possession, and the word Heredita­ment in the Statute 26 H. 8. are both sufficient and fit to carry such right in such Cases, and no man will dispute but they are sufficient to save naked rights to the Lands of strangers, & therfore it is not for the count of words, but because it is alleged it was not meant, & so it was said in Digbies Case, and so hath Antiquity expounded it for the good of the Subject against the King, and against the letter of the Law. But can any man imagine that the Parliament that gave the Land to the King should leave a right in the Traytor, in the same Land, to defeaf him again of it, since the Sta­tute gives the right and the Land, and this gives a forfeiture of all rights belonging to the Person attainted of Treason and their Heirs, for the be­nefit of the Kings forfeiture is of so great importance, that if it be not ta­ken as large as I take it, it is an avoiding of all the Statute, even that 33 H. 8. cap. 20. for though they have the word Rights in both Sta­tutes, even that of 33. doth not include the right of Action to the Lands of Estrangers by an Equity against the Letter. So for this time the Case was abruptly broken off, by reason the King had sent for all the Iudges of every Bench.

Springall against Tuttersbury.

IN Springall and Tuttersburies Case. It was agreed by the Court, If a verdict be given at a nisi prius, and the Plaintiff or Defendant die after the beginning of the Term: yet Iudgement shall be entred, for that re­lates to the first day of the term.

Overalls Case.

ONe Overall was sued in London, and for that that he was of the Common Bench, a Writ of Privilege issued, which is a Super­sedeas, and staid the Sute wholly, and not removed the Cause; And if the Plaintiff had cause of Action he ought to sue here. And then by the course of the Court, a Clark shall not put in bayl.

Foxes Case.

THe Lord Keeper in the Star-chamber cited one and But­chers Case to be adjudged 38 Eliz. An Vnder-Sheriff makes his Deputy for all matters except Executions, and restrained him from med­ling with them. And it was adjudged a void Exception. So if it be agreed and covenanted between them, that the Deputy should not meddle with matters of such a value, It is a void Covenant. And that was agreed by Richardson to be good Law.

Hil. 5 Car. Com. Banc.Overalls Case.

IT was agreed at another day in Overalls case by all the Clarks and Prothonotaries of the Court, that the Course always was, that if an Atturney or Clark be sued here by bill of Privilege, he needs not put in bail. But if he be sued by original, and taken by a Capias, as he may be if the Plaintiff wil, Then he ought to put in bail. quod nota.

MEmorandum, that on Sunday morning in the next term ensuing, which was the 24. day of Ianuary. Sir Henry Yelverton, puisne Iudge of the Common Bench dyed, who before had been Attourney gene­ral to King Iames; and afterwards incurring the displeasure of the King, was displaced, and censured in the Star-chamber, and then he became af­terwards a practicer again at the bar, from whence he was advanced by King Charls to be a Iudge. He was a man of profound knowledge and elo­quence; and for his life of great integrity and piety, and his death was u­niversally bewailed.

Honora Cason against the Executor of her Husband.

HOnora Cason sues Edward Cason Executor of her Husband, and de­clares by bill original in nature of debt pro rationabili parte bono­rum, in the Court of Mayor and Aldermen of London, and alleges the custom of London to be, That when the Citizens and Fréemen of Lon­don die, their goods and chattels above the debts, and necessary funeral expences, ought to be divided into three parts, and that the wife of the te­stator ought to have the one part, and the Executors the second part to discharge Legacies, and dispose at their discretion; And the children of the Testator male or female, which were not sufficiently provided for, in the life of the Father, to have (notwithstanding the Legacies in the will) the third part. And the custom is, that the Plaintiff in this action ought to bring into the Court an inventory, and sue before the Mayor and Aldermen; And that she had here brought an Inventory, which a­mounted to 18000 l. so that her third part was 6000 l, and demanded it of the Executor, who unjustly detained, &c. And it was removed to the Common bench by writ of Privilege. And now Hitcham Serjeant mo­ved for a procedendo. And the Court séemed to be of the opinion to grant it. Because that the custom is, that the sute ought to be before the May­or and Aldermen, and then if they retain the action here, the custom would be overthrown. But they agreed that a rationabile parte bonorum may be remanded here, and that they may proceed upon it in this Court; And that there be divers presidents to this purpose. And they agreed that a rationabile parte bonorum is the original writ by the Common Law, and not grounded upon the Statute of Magna Charta. But that it does not lie, but where such a custom is, which custom they ought to extend to all the Province of York beyond Trent. Richardson chief Iustice said, that in the principal case. The Plaintiff in London might have declared without alleging the custom. As it is in 2 H. 4. Because that the cu­stom [Page 159] is well known. But otherwise, Where cu­stom ought to be shewed, and where not. where an action is upon the cu­stom, in a place where the custom does not extend; There it ought to be shewn. And afterwards, at another day, a procedendo in this case was granted.

Sir William Cave against Sir William Fleetwood.

IN debt the Plaintiff had judgement, Hill. 5 Car. Com. Banc. and a cap. ad satisfac. was a­warded against the Defendant, upon which he was outlawed. And Crawley moved that the Plaintiff might have an Elegit, and cited 21 H. 7. 19. There are but four manners of Execution Two by the Common law, levari and fieri fac. And two by the Statute, elegit and capias, and none of them is a barre to the other, unlesse there be satisfaction of it. A fieri fac. is no barre to the cap. al­though part of the Debt be satisfied. 22 Ass. 47. E. 3. Exec. 41. If the party pray execution of the body, and had it, then he shall not have resort to a new Execution; For if the De­fendant die in prison, it is adjudged in Bloomfields case, that the Plain­tiff shall have an Elegit, which proves that it is the satisfaction the Law looks upon, and respects. A fieri fac. is no barre to the capias, although part of the debt be levied by fieri fac. and a capias may issue after. Se­condly the processe is determined by the Outlawry, although it be after Iudgement And for that the Plaintiff resorts to his satisfactory execution again. 17 E. 4. 4. Execution by Statute does not oust execution by the Common law, no more than the execution by one Statute ousts the execution by another. Hutton Iustice If upon an Elegit brought, it be executed, he can never have an execution; And if a man be taken upon a capias, the party now may have another execution; but the outlawry here deter­mines the process, and then the Plaintiff by scire fac. revives the Iudge­ment again, and he may resort to which process he will. If a man had a Iudgement, and taken a capias, and done nothing upon it, but died, the Executor is not bound by that. But after a scire facias he may have an Elegit, or what other execution he will. Hudson and Lees case, Common Bench, The Plaintiff took an Elegit, but because he could not (upon the Inquisition find sufficient to satisfie, he resorted to a capias. And it was agréed that he might, for that, that the Elegit was not awarded upon Record. But if an Elegit be awarded by the Roll, and so shall be recor­ded, the Plaintiff ought to proceed upon that. But the course is not to award it upon the Roll; and he said that Bloomfields case is not Law. For if the party die in execution by Elegit by capias, the Plaintiff had his execution, and might not have any execution again. And so it was adjudged in Iacksons Case in this Coutt. And the making of the Sta­tute of 21 [...]ac. shews that so the Law was taken.

Wollaston Dixye against the Bailiffs and Burgesses of Derby.

IN a quare impedit, the Plaintiff declares that Iustice Beamont was seised in Fée of the Advowson, of St. Peters in Derby, and presen­ted his Clerk to it, who was instituted and inducted, &c. and dies, and that the Advowson descended to H. Beamont his son and heir, and he died, and the Advowson descended to Barbara his daughter and heir, and that she being seised in fée, and under the age of 21 years, the Church be­came void, and Barbara her Mother, who had not any right of present­ing, presents her Clerk, who was instituted and inducted and admitted to it. And Barbara the Daughter took the Plaintiff to Husband, and be­came of full age, and then the Church became void. And because the Bayliffs and Burgesses presented, and the Church so full within the six [Page 160] months, the husband alone brought that action, upon which there was a demurrer. Davenport said the action did not lie for the husband alone, but the wife ought to joyn with him. For that usurpation upon the Infant which he had by descent, by the Statute of West. the 2d. does not turn the Infant to his writ of right. Yet the Vsurper gets the inheritance, and turns his estate to a right. And for that he cited Cook, 6. 50. Boswells case, and 16. E. 3. there cited. Where one seised of a Mannor with an advowson appendant dies, his heir within age, who suffers an usurpation, and then grants the Mannor, Resolved that the advowson does not passe, because that the heir had but a right in the advowson after the usurpation. So in our case, the wife had but a title of action: and than the wife ought to join. As where an obligation is made to a woman who takes a hus­band; the wife ought to joyn with the husband in the action upon the ob­ligation. But Henden said, that the Husband only might have an action. If a feme covert be seised of an advowson in fee, and the Church void, the Husband only may have an action without question. Which was granted by the Court. Then here, the wife being of full age before the avoidance, now the feme being in possession of the Advowson again to all intents and purposes. And for that by the exposition of the Statute of Westmin­ster, the force of the usurpation being upon the Infant, who had it by descent, continued but during the incumbency and non-age of the In­fant. And it was said by Richardson, That the Infant at full age might present, and so regain the possession without action, at the Com­mon Law, by usurpation she was turned to her writ of Right. And if it was a purchase, he was without remedy. Now I demand in this case, If there be a death during the avoidance, whether the Executor shall have it, or the Husband upon tenant by Courtesie. And he cited the Lord Stanhops Case; which was, That the Abbot of the Monastery of Shel­ford, was seised of the advowson in gross, and there was an usurpation in the time of the Abbot; And then came the Statute of dissolutions, which gave a right, and title to the King; So that that which was in the Abbot was now in the King. Afterwards the King grants that Advow­son by a general grant without recital of the case. And adjudged a good grant. But by Hutton, Warberton, and Winch Iustices, were of the con­trary opinion to Hubbard; But that was because that there are words in the Statute; that the Subject shall have all the King had; which was to induce purchasers. Hutton, If it might appear that the Plaintiff (scil.) the Husband, presented before the Vsurpation, and was disturbed; that perhaps would have been a claim, and so a remitter. For at the Com­mon Law, the remedy for an Infant, was to present, and upon admis­sion and Institution, &c. of his Clerk he should be remitted, or might have a Writ of right if he pleased. But by the Court, the husband on­ly in this case might have presented; And then upon disturbance, he on­ly shall have the action. But here the Church was full before the presen­tation. Henden said, the intention of the Statute was to give to the In­fant at full age all his Interest which he had before usurpation, Du­ring the life of the Incumbent, and non-age of the Infant, the V­surper had an Estate in fee. But after the death of the Incum­bent, and full age of the Infant, the Estate of the Vsurper cea­sed. And the reason is upon the Statute of Westm. 2. Infans habeat candem possessoriam actionem qualiter antecessor. And 33 H. 6. 42, is, that an Vsurper puts an Infant out of possession; Infans habeat eandem actio­nem possessori­am qualiter antecessor. But that ought to be understood during the Infancy only, Et adjournatur.

Rawlins's Case.

HE was Plaintiff in a Replevin and was non-suted after Evidence given to the Iury, and the Iurors did not find Costs and Damma­ges; And afterwards a Writ of Enquiry of dammages was granted. And Ashley moved, that the writ might not be filed. Because that the Writ of Inquiry of dammages could not issue, but awarded from the Court; And the Plaintiff here being non suted was out of the Court, and that nothing might be done against him. And the Prothonotaries said, That in Case of a Verdict, where the Iurors omit to find damma­ges, a Writ of Enquiry is many times granted. Writ of En­quiry may be granted after a verdict, when Jury o­mit the dam­mages. But they were com­manded to search for Presidents in Case of a non-sute. Richardson cited one Grimstons Case in the Kings Bench. Which was, one Plaintiff in Action upon the Case against an Inne-holder was non suted, and the De­claration was insufficient. And for that the Plaintiff might not have costs. But by Henden, It is ordinary now in the Kings Bench; If the Defendant had a Verdict, although the Declaration be insufficient, Yet he shall have Costs.

Nurse a gainst Pounford.

NUrse a Barrester of Grays-Inne, brought an Action upon the Case against Pounford. And declares, that he is a Counsellor, and was of Councel with several Noble men, and that he was Steward to the Lord Barkley of 20 Mannors, and also the receiver of his Rents for those Mannors; And that the Defendant maliciously, intending to disgrace him to the Lord Barkley, writ an infamous Letter against him to the Lord Barkley; Which Letter was here recited, and it was to this effect briefly, ut sequitur. (scil)

Your wonted Courtesie to Strangers incourageth me to desire your Honor not to protect your Steward in his unlawfull Sutes. He hath un­justly vexed his own Brother by Sutes, and caused him to be arrested and taken out of his Bed forcibly by Catchpoles; He hath likewise almost un­done me, who have maried his own Sister, notwithstanding his entertain­ment at my House, for himself, Wife, Servants, and Horses for several years. And now instead of payment, thinks to weary me out with Vexa­tions and Sutes at Law. I hope your Lordship will give no countenance to him in these things.

By reason of which Letter the Lord Barkley turned him out of his Of­fice. The Defendant pleads not guilty, which was found for the Plain­tiff. And it was moved in arrest of Iudgement, that the Action here would not lye. Atthowe said, that the Action would lye well, by reason of the particular loss the Plaintiff had. And that is proved by Anne Da­vies Case, Coo. 4. Such words that there are spoken of a maried woman, are not actionable; But of a Feme sole who had a Suter, the Action will lye. If one said of a Feme sole, That she is a Whore, and such a mans Whore; It will not bear an Action in our Law: But in the Spiritual Court it will. And perhaps for Whore generally there. And in the Case of Anne Mayes there was a loss of preferment which she might have. But here the Plaintiff lost the preferment which he had. If a man said to the Ordinary of a Clark presented to him, that he is a Bastard, sediti­ous or heretique, by reason of which words the Ordinary refuses him; An Action lies for the Clark, for the temporal losse; and he cited Butchers Case and Stewkleys Case, Cook 4. Also he cited Sir Gilbert Gerrards Case, Cook 4. 18. If one said, Take not a Lease of such an one, I have a Lease of [Page 162] it, an Action does not lie. But if the party by reason of those words could not demise it to one with whom he had Communication for the Lease▪ Then it lies. Or if he said that another had a Lease of that, also an A­ction lies, 6 E. 6. Dyer 72. One saying that a Merchant would be a Banck­rupt is Actionable; Because that no man will trust him, 7 E. 4. 24. One threatens another if he will come abroad he will beat him; For the threatning an Action does not lie; But if for that Cause he could not go abroad about his Business, an Action will lye.

Secondly, It hath been objected, that the Action does not lie, Because that it appears that the Letter was written out of the time of Limitati­on, by the Statute of 21 Iac. which is for Slander. That the Action ought to be brought within two years after the Slander. I agree, if it be brought for slanderous words. But this is an Action upon the Case only. An Action upon the Case for slandering of a Title is not within the Sta­tute 21 Jac. for the two years, but for the six years. So here the Action is not for slanderous words; For the Letter does not bear an Action. But for the temporal loss. But it was resolved by the Court, That the Action did not lie. For by Richardson Chief Iustice, In all Cases where you will maintain an Action, for words, there ought to be some particular words of Slander spoken or written, by which the particular loss came. Here is a Letter it had not any Slander in it; And it cannot be concei­ceived that the Lord turned him away out of his Service or Office by that Letter, which does not touch him in his Office of Stewardship nor his Receivorship. If he had written that the Plaintiff was a contentious and troublesome man, that had been more questionable than this is; Yet it would not bear an Action. And Richardson said, that they alwaies conceived Sir Gilbert Gerrards Case not to be Law. For if a man said that he himself had a Title to the Land of an other, it is not actionable, although he lost by that. But if he had said, that another man had Title to the Land of another, that is actionable. And no Case can be shewen, where an Action upon the Case lies upon a particular losse, unless the words carry some slander with them. Hutton said, the words of the Letter are not actionable. But if being said to be done maliciously and falsesly, and to the intent the Lord Barkley should put him out of his place, and upon that the Lord displaced him, then there would be more doubt of it. But here the Iury had found the Defendant guilty, and that seemed only to the writing of the Letter, and it might be false notwithstanding. But if the Iury had found that all was false, and written of set purpose, and that for that the Lord displaced him, it would be more difficult. But for any thing as appears to us, there is not any thing for which he might be justly displaced. And also it was not said in the Declaration that the De­fendant had any fee for his Office. And Richardson also said, That if it had been found as my Brother Hutton said, Yet it is known that it should be more strong. But then I conceive that the Action does not lye. For it is apparent that nothing in the Letter may be applyed to a particular misbehaviour in his Office. And by the Court, Although the Declarati­on be laid falsely and maliciously; Yet if the words be n [...]t scandalous, yet it ought to be laid falsely and maliciously. And he said that it was adjudg­ed in this Court, Where an Action upon the Case was brought for con­spiracy to indict a man, and upon the Indictment the Iury found Ignora­mus. There the Indictee was clear; And yet for the conspiracy the Acti­on laid, which was Blakes Case. And it was said by Hutton, If I have Land which I intended to sell, and one came and says maliciously, (and on purpose to hinder my sale) that he had a Title to it, That that is a­ctionable, Which Harvey agreed without Question, if he does not prove that he had a Title; If one says of an Inue, Go not to such an House, for [Page 163] it is a very cutting House. Agreed by the Court not Actionable. Mich. 5 Car. Com. Banc. And Iudg­ment was given quod querens nil cap. per bil.

Tomlins's Case.

IF the Husband makes a Feoffment to the use of himself for life, the Remainder to his Son in tayl; By the Court, That is a dying seised in the Husband. For the Wife shall have dammages in Dower. And so it was adjudged in the Lady Egertons Case; But the Husband ought to dye seised of an Estate tayl, or Fée simple which might descend to his Heir.

Rawling against Rawling.

THe Case was thus, A man being possessed of a Lease for 85 years, devises it as follows (viz.) I will that R. Rawling shall have the use of my Lease, if he shall so long live, during his life, he paying certain Le­gacies, &c. And after his decease I devise the use thereof to Andrew Rawling the residue of the term with the Lease, in manner and form as R. Rawling should have it. Crew said, That after the death of R. Raw­ling and Andrew, the term shall revert to the Executors of the Devisor. But by the Court, not. But it shall go to A. Rawling the last Devisée, [Page 164] and in manner and form shall go to pay Legacies. And by all a strong Case. And together with the Lease, be by strong words.

The Archbishop of Canterbury against Hudson of Grays-Inne.

THe Archbishop of Canterbury prosecuted against Hudson of Grays-Inne, in an Information upon the Statute of E. 1. of Champerty. Henden Sergeant for the Plaintiff moved upon the Plea, that it was in­sufficient, Because that the Defendant had prayed Iudgement of the Writ, when he ought to have pleaded in Bar; For the Statute of E. 1. had appointed a special Writ in this Case, as the Defendant said. But by him the Information is upon the Statute of 32 H. 8. which gives that Action by sute in Chancery, which before was only by sute at Com­mon Law. Richardson chief Iustice said, That the Plea is not to the matter, but to the manner; for the Plaintiff had mistaken his Action. For the Action is given to the King only. And therefore said to Henden, demur if you will. The Case was that the Defendant purchased Lands in anothers Name, hanging the Sute in Chancery for it; And after rules for Publication was given in the Cause.

Malins Case.

AYliff moved in arrest of Iudgement, in an action of Battery, &c. And the cause that he shewed was; An issue mistaken can­not be amen­ded. It was brought against William Malin of Langlee, and in the Record of nisi prius, It was William Langley of Malin: But by the Court it ought to be amended; For it is a mispri­sion apparently of the Clark. For the whole Record besides is right; And the Record of nisi prius ought to be amended by the Record in the Bench, according to the 44 E. 3. But if the issue had been mistaken o­therwise it had been.

Arrerages for rent upon an estate for life, cannot be forfeit by Outlawry. NOte, That it was agreed by the whole Court, That arrerages of rent reserved upon an Estate for life, are not forfeited by Outlaw­ry, because that they are real, and no remedy for them but a distress, Otherwise if upon a Lease for years, &c.

Browns Case.

AN Information upon the Statute of 5 Eliz. pro eo, that one Brown was retained an Apprentice in Husbandry until the 21 year of his age, and that he before his age of 21 years went away; And the Defen­dant, absque ullo testimonio detained him contra formam Statuti, And by Hutton and Harvey Iustices, only shewed the branch of the said Statute, which says, And if any servant retained according to the form of this Sta­tute [Page 165] depart from his Master, &c. Hil. 6 Car. Com. Banc. And that none of the said reteined persons in Husbandry, until after the time of his reteiner be expired shall depart. That is not to be intended of an Apprentice in Husbandry, but of an hi­red servant. For the Statute did not intend to provide for the departure of an Apprentice, because that an Apprentice ought to be by Indenture. And then a writ of Covenant lies upon his departure, to force him to come again. And by the Common Law, an action upon the case lies, for retaining the servant of another. And by them the retainer without being testimonial, which is an offence against that Law, is after the years of reteiner expired; For so are the words of the Statute. But they said that the Information was naught; because that it does not appear, that the Defendant did not retain him out of the Parish where they serv­ed before. For the Statute says, out of the City, Town, or Parish, &c. except he have a testimonial. And the words secundum formam Sta­tuti will not aid it. And in the same Village or City, &c. The Statute does not require a testimonial, because that there it was known, &c. And for these reasons after here said for the Plaintiff, Iudgement was stayed, if, &c.

Jennings against Cousins.

IEnnings brought a Replevin against Cousins, who avowes for damage feasant, The Plaintiff replies, that post captionam & ante deliberati­onem — he tendered 3 s. which was a sufficient amends for the Trespasse and the Defendant notwithstanding detained his Cattel contra vadum & pleg. &c. Vpon which they demurred. And by the whole Court the Replication is naught. For Pilkintons Case was agreed to be good Law: that the tender ought to be before pounding, but any time before the im­pounding it is sufficient. But here ante deliberationem implies that the Cattel were impounded, and it is not shewn in certain that the tender was before. And it was agreed in trespass, That the Defendant may plead the Trespass to be involuntary, and disclaim in the Title without pleading the Statute of 21 Iac. for the Statute is a general Statute. Whereupon Iudgement was given for the Defendant.

Butts against Foster.

THe Plaintiff in an Action upon the Case, the Plaintiff declared, That whereas he was a man of good fame, carriage, and behavi­our, and free from all blot or stain. Yet the Defendant with purpose to draw his life in Question, and traduce him amongst his Neighbours, in presentia multorum, &c. crimen felonae ei imposuit, & ea occasione il­lum arrestari causavit, et per spatium duarum dierum in custodia detineri & coram Iohanni Pettyman uno Justic. ad pacem, &c. duci procuravit & nequisfime prosecutus est, &c. The Defendant pleads not guilty, which was found for the Plaintiff. And Hitcham moved in arrest of Iudgement, that the Action would not lie: And of that opinion was Hutton, because that he did not proceed to indictment; For there an Action of that lies in the nature of a Conspiracy. But if an Action should lie here, it would be a mischievous Case; for by that every man would be deterred to questi­on any person for felony. And it was said by Hutton. If one said, You have broken the Peace, and I will cause you to be arrested, and procures a Warrant from a Iustice of Peace, by which he is arrested. No Action here will lye. But Berkley on the other side said to the contrary, and of that Opinion was Richardson Chief Iustice, that the Action will well lye. And by Richardson, The Defendant ought to have justified, that there was a Felony done, and that he suspected him, &c. But he pleads not guil­ty. [Page 166] And it does not appear by the Declaration what was done with the Plaintiff, after he was brought to the Iustice of Peace, and by that it shall be implyed, that he was dismissed upon his examination. And here the Plaintiff was imprisoned, and carried before a Iustice of Peace; which is an act done as well as in the case where there is an Indictment. And an Attourney of the Court cited one Danvers and Webly's Case, In that very case it was adjudged that the Action lay. But it was adjourn­ed to another day.

Champues Case.

OUnson makes his will & gives 200 l. to Tho. Champues son of Jeremie Champues, Also to other Children of Ieremy 20 l. a piece to be paid at their several marriages, or ages of 21 years. And after wills that his Exe­cutor should enter into bond to the several parents, to pay the several Le­gacies to the several Children at the ages of 21 years, or their marriages. And his Executor after his death, gave an Obligation to Jeremy Champues to pay the 200 l to Thomas at his full age or marriage. But in the Spi­ritual Court afterwards upon libell it was ordered, that he pay the lega­cies presently. Thomas being under age, of tender years. And for that Henden moved for a prohibition. Richardson, although the sute for a Legacy be properly in the Spiritual Court; yet if there be an Obligati­on given for the payment of it, it is not turned to a duty in the Com­mon Law, and then it is not tryable there. This is one reason why a prohibition shall be granted. Secondly, another reason is; because that they sentenced the payment of the Legacy against the Will, and against Law, and the Obligation here will not alter the case; for it is given to another person, not to the Legatee, and then the Legatee, notwith­standing the Obligation may sue in the spiritual Court. But by Richard­son it is all one, for here the Will orders the Obligation to be made. Which Hutton changing opinion, and Harvey agréed. For now because the Obligation is given, if the sentence shall be given, the party is liable to the Obligation also, to perform that. And by Richardson it seemed that the clause in the will of the Obligation to be entered into by the Ex­ecutor, to pay at the marriage, or 21 years of age, the several Lega­cies, &c. extends to the first Legacy of 200 l. to Thomas, although it be coupled to the last Legacy, which should be by a new and several Item. And by that clause the intention of the Testator appears, that the 200 l. which is given generally, and no time of payment named; It shall not be paid until marriage of 21 years of age. And a prohibition was com­manded to be granted.

NOte, It was said by Richardson chief Iustice, If a man had a way over the Land of another for his Cattel; and upon the way he scares his cattel, so that they run out of the way upon the land of the owner, and the party who drives the Cattel freshly pursues them, &c. That in Tres­passe he who had the way might plead this special matter in justifi­cation.

Green against Brouker and Greenstead.

IN Trover and reversion the Plaintiff declares; That whereas he was possessed of a bag of hops, and a bag of flax to the value of, &c. And that the Defendant found them, and the third day of October con­verted them, And the Defendants plead that Sandwich is an antient Village, and that the custom of forrain attachment is used there as in London, and that these goods were lost upon default in November, and [Page 167] traverses absque hoc that they were guilty of any conversion in October, Pasc. 7 Car. Com. Banc. or any other time or day than the times before, which are contained in the Declaration. That the Defendants were guilty before, (scil.) October, Vpon which the Defendants demurre, and Iudgement was given for the Plaintiff, Although it was objected that the Iustification here, by the Custom before had taken away the property, And I shall be debarred in Detinue, and so in Trover. But the Court was of the con­trary opinion, That the Defendants Plea in barre here shall not be good without traverse, as it is, and therefore the time is not made material, but any time before is sufficient. Méer possession sufficeth to main­tain a Trover.

Eaglechildes Case.

FInch Sergeant said, that 6 Car. in the Kings Bench it was ruled, up­on Bill of Exchange betwéen party and party, who are not Merchants, There cannot be a Declaration upon the Law of Merchants, but there may be a Declaration upon the Assumpsit, and give the acceptance of the Bill in Evidence

Crompton against Waterford.

WAterford was sued in the Spiritual Court for saying these words of the Plaintiff, she will turn tayl to tayl with any man, intimating that she would be naught with any man: And sentence was given for the Plaintiff. Whereupon he appealed to the Delegates propter gravamen, And the Delegates overruled it, and assesse costs for the wrong appeal. Then there was a prohibition granted, because the words were idle words and not punishable in the Spiritual Court. Hutton seemed, That the costs taxed by the Delegates are not taken away by the Prohibition. Richardson on the contrary. For the principal is prohibited, and the costs are incident. And because that a prohibition stays all proceedings, the costs are taken away. If the costs are to be executed by the Delegates, then the prohibition to them will help: But if the costs are remanded to the inferiour Court as well as the cause, then the prohibition to the In­feriour Court will help. So quacunque via data the costs are to be dis­charged. And the party if excommunicat be dissolved. And so agreed by the Court.

Alleston against Moor.

ALleston an Attourney of this Court brought an action upon the Case against Moore for calling him cheating knave, and it was not upon speaking of him as an Attourney. And for that by the Court in arrest of judgement, It is not actionable, If he had said, you cheat your Clients, it would be actionable. One said, That my Lord Chief Baron cannot hear of one ear colloquio praehabito of his administration of Iustice; And it wad adjudged actionable. Otherwise it had been if they had had no dis­course of his Iustice.

Trin. 7 Car. Com. Banc.Coxhead against Coxhead.

IN Debt upon an Obligation, the Condition was to perform an Arbitra­ment, and the Defendant pleads nullum fecere arbitrium, The Plain­tiff replies that they made such an arbitrament, and recites it, the De­fendant rejoyns, that the Condition was to make an arbitrament of all things in controversie, and that other things were in controversie, whereof no arbitrament was made. The Plaintiff sur-rejoynes, that the Defendant did not give notice of those, upon which issue was taken, and no place alleged, where notice was given. And that exception was moved in arrest of Iudgement. And upon that Iudgement was stayed.

Tomlinsons Case.

IF an Executor is sued in the Ecclesiastical Court, for a Legacy; and the Executor pleads plene administravit, a Prohibition shall not be granted, if they will not admit that plea. For they ought to judge there, if he had administred fully or not. But upon suggestion that they did not reject any administration, which our law allows; A prohibition shall not be granted, as Richardson said; which was not denied by the whole Court

Williams against Floyd.

WIlliams was Plaintiff by an English Bill to the Council of Mar­ches against Floyd, in the nature of Debt upon an Escape, and there was a Latin Declaration upon an Escape turned into English, be­cause that the Defendant, being Sheriff of Canarvan, suffered one, a­gainst whom the Plaintiff had a Iudgement (being taken by capias ut­legat.) to escape, To his damage of 40 l. And by the whole Court a pro­hibition was granted; Although that by their Instructions, they had pow­er of personal actions under 50 l. For this is intended a meer personal, acti­on. As debt, detinue, &c. But Debt upon a Iudgement, or debt upon an escape, or upon the 2 E. 6. for not setting forth of tithes, an action upon 8 H. 6. or any other action upon matter of Record or Statute; In such cases they have not Iurisdiction. And the Defendant there might have pleaded nul. teil. record, and then he might have proceeded further. But the misdemeanour here, in permitting the party to escape, might have been punished there by Information.

Gee against Egan.

GEe an Attorney of this Court brought an Action upon the Case a­gainst Egan, and declares, that he was an Attorney for many years late past, and still is, and that he had taken the Oath of an Attorney to do no fraud nor deceit, in his Office as Attorney. And that colloquio habito et moto inter one Rise Brother in Law to the Plaintiff, and the Defendant, concerning the Office of the Plaintiff as an Attorney, and concerning a Bill of Costs and Expences, by the Plaintiff in defence of a Cause prosecuted by one Treddiman in the Common Bench against the Defendant laid out and expended; The Defendant 1 Augusti 4 Car. spoke those words to Rise, Your Brother and Mr. Treddiman have cheat­ed me of a great deal of mony, &c. by which the Plaintiff is in danger to lose his Office. And it was moved (after verdict for the Plaintiff) in arrest of Iudgement by Ayliff. Because that here is not any certainty in the Declaration that the words were spoken of the Plaintiff as Attorney; And then they are not actionable. For he does not shew at what time the speech was of him as Attorney. Richardson upon reading of the Re­cord said, It was true that no time of the speech is shewen, neither is it after the speech shewen, upon whom he spoke those words; Which might help it. Neither is it said (afterwards) that is to say primo die, but primo die Augusti he spoke, &c. And if it can be intended, that those words were spoken of the Plaintiff as Attorney; That would inforce the words to bear an Action. But if such words are generally spoken of an Attourney, without speech of his Office, they are not actionable. For he may be a Cheater at dice, or in a bagain, &c. And here non constat that the words were spoken of the Plaintiff as Attourney.

Secondly it does not appear that the Plaintiff was was an Attorney in the Cause, but says that there was a conference of a Bill of Costs laid out by him, &c. and does not say laid out by him as Attorney. And the whole Court seemed to be of the same opinion. But it was adjourned. If it had been said, that habente colloquio primo die, &c. he spoke, it should have been good. But habito implies time past.

Hitcham against an Attorny of this Court.

HItchsm Chief Sergeant of the King, brought an Action upon the Case against James Cason an Attorney of this Court; And he de­clared that he was now Sergeant to the King, and so was to his Father, and that the King made him Iustice of Peace for his County of Suffolk, and that he for many years theretofore, and yet, did exercise the Office of a Iustice of Peace. And that the Defendant on purpose to disgrace him, and to make him to be removed from being a Iustice of Peace, in the Court openly spoke these scandalous words, In a matter wherein I was questioned at the Quarter Sessions in Suffolk, Mr. Sergeant Hitcham being there, was Witness, Judge, and Party, and did there oppresse me. And moreover he said, In Articles there presented against me, he did me injustic [...], and hath contrived those Articles. And moreover he said, Mr. Sergeant Hitcham bound my Son Finch to the Quarter Sessi­ons, and there indicted him, and was Witness, Judge, and Party, and counts to the dammage of the Plaintiff 1000 pound. The Defen­dant to some of the words in the Declaration pleads not guilty, to the resi­due he justifies, and says that the Plaintiff was made a Iustice of Peace 1 Apr. 1 Car. And as to the words, In a matter wherein I was questioned in the Quarter Sessions in Suffolk, Mr. Sergeant Hitcham being there, was Wit­ness, Judge, and Party. And all but the last words, That the Plaintiff at the Sessions 8 Sept. 2 Car. at W. in Suffolk, quosdam falsos Articulos [Page 170] scribi fecit exhibuit et produxit. And recited all the Articles being in number eleaven. Hil. 5 Car. Com. Banc. And that after the exhibiting the Articles in open Court, The Plaintiff there said that they were true, and counsel­led the Clark of the Peace to read them, and then said he should be tryed upon them. But the Plaintiff denied that and said, that he would pro­ceed now no further upon them, but took the Articles and carried them with him, by which the Court was dispossessed of them; And would not proceed against him upon them. And upon the last words (scil.) Mr. Ser­geant Hitcham bound my Son over to, &c. He said that his Son was bound to appear at the Quarter Sessions; And caused an Indictment to be pre­ferred against him, Because he being elected Constable refused to take his oath, or to execute his office; And upon that Indictment the Sergeant gave evidence to the grand Iury, and they found the Indictment; And upon that Iudgement was given, that he should be amerced, that estreated. And up­on this bar the Plaintiff dumurred. Finch for the Plaintiff. And first he an­swers to the Exceptions which were taken before to the Declaration &c.