Mich. 1. Hen. 7.

Capell and Churches Case. A Writ of Right Patent in the Court of the Castle of Rising of the King, was directed Balivis suis de Rising, whereas the pro­ceedings were senatoribus Curiae, held good; because the Paylifs are to make the Sommons; and the suitors Justice:

Capell and Aprices Case. 2. Replevin. The Defendant avowed, That A. and B. held the Mannor of H. and divers Lands of the Bishop of London, parcel of the Bishops Castle of S. by Homage, Fealty, Escuage, and by the Rent for Castleguard, & pro reddit. auxil. Vic. The Defendant pleaded, That the Castle was utterly decayed; and as to the auxil. Vic. de­murred [Page 2] in Law; The Plantiff was Nonsuit, but the Rents are still paid to the Bishop, though the Castle be decayed.

Cleydon and Spensers Case. 3. Resolved, That if an Executor, with his own proper mo­nies pay a debt due by the Testator, he may retain so much of the value of the goods of the Testator in his hands.

Case of the Sheriffs of London. 4. The Custome of London is: That if a Villein remaineth in the City by the space of a year and a day, without any Claime made of him, he may all time during his life, live in the City Free.

5. Resolved by the Justices, That that which is written after the words In cujus rei Testimonium, is parcel of the deed, aswell as that which is written before it.

6. Resolved; It is no principal Challenge, That a Juror is endebted either to the Plaintiff or Defendant.

7. Resolved; In a Replevin: That one of the Jurors was Steward of the Mannor to the avowant, is a principal Chal­lenge.

8. Two are bound each to other to stand to the award of Arbi­trators; They award that the one shall make a Lease for years to the other, rendering Rent to the Lessor; the Lease is made, the Rent is not paid; adjudged, the Bond is not forfeit; because Di­stresse, or Debt, are proper remedies for the Rent; contr. if it be awarded, the Lessee should pay the Rent.

9. Debt for not performance of an Arbitrament; Adjudged, It is no plea generally, That he hath performed it; but he must show how he hath performed it.

10. Resolved; It is a good Challenge to one of the 4. Knights who come to impannel the Grand Assise, that one of them is maried to the Plantiffs daughter, and the other 3. shall try it.

11. If a submission be, de jure titulo & possessione of certain Lands, The Arbitrators cannot award that one of the parties shall procure the Lord of the Mannor to grant a Copy, holdor that a stranger shall release, because out of the submission.

Frances Case. 12. Resolved, That the King by his Letters Patents cannot grant the Lands of a Lunatique to another, to take the profits to his own use, because the King himself is not entitled to them for his own use, but for the use of the Lunatique his Issues, Wife, &c. Otherwise it is of an Ideot, for then the King hath the profits to his own use, making allowance to the Idiot for his keeping.

Levet and Lewknors Case. 13. An Executor recovered in Debt and then dies Intestate, and the Ordinary commits Administration, de bonis non, &c. Re­solved, the Administrator shall not have a scire fac. upon the Judge­ment; but a new Action of Debt as Administrator to the first In­testate.

Sir Godfrey Foliambs Case. 14. Quare Imp. The Case was, A. seased of the Mannor of D. to which Mannor an Advouson was Appendent, granted the next Avoydance to B. and D. & eorum cuilibet conjunctim & divifim haered. executor. & assignis suis. The Church voyd: B. presents D.to the Church, adjud­ged That the presentment of him was good, though he was one of the Granters.

15. The Husband is entitled to Land in the Right of his Wife; Resolved, The Husband alone without joyning the Wife in the Writ, shall have an Action upon the Statute of 8. H. 6. because the words of the Statute are Expulit & disscisivit.

16. A man was indicted for a Robbery done in the Foot way, leading from London to Islington; Resolved, That he should have his Clergy, because the Indictment is not of a Robbery in alta via re­gia, nor in the High way, but in a Foot way.

Vaughan and Lord Burghs Case. 17. In a Writ of Prohibition, there wanted the word (Ostensu­rus) Resolved, though after Issue joyned, that the Writ was a­mendable by the Statute.

Baker and Brooks Case. 18. A Parson granted an Annuity of 5 l. issuing out of his Recto­ry pro Consilio impenso to I. S. Habend. & recipiend, to the said I. S. and his Assignes. The said I. S. granted it over to I. D. Resolved, That the grant of the Annuity was good: and the Assigne may have Debt for it.

19. Wast was brought against Lessee for years: He pleaded in Barre, an Accord which was executed; Adjudged to be a good plea.

20. Resolved by the Justices; That the Master cannot Sollicite, Counsel, nor give Mony to Counsel in an Action brought against his Servant, for his Servant; but yet he may give what is due to his Servant for his Wages to Counsel for their Fees, and it is not maintenance.

21. Resolved, That the Lord in Ancient Demesne shall have a Writ of Disceit, after a Fine levyed, and the Kings Silver paid.

22. If one comes to a Justice of Peace, and complains that I. S. is a Felon, and hath stolen certain goods, and the Justice commands [Page 4] the party who complaines, to be at the next Sessions and prefer a Bill of Indictment against the Felon, and give Evidence against him who doth accordingly; Adjudged, That neither he, nor the Justice shall be punished in Conspiracy: although I. S. the Felon be ac­quitted.

23. A man made a Lease for 40. years by Deed, and in the Deed Covenanted and granted to the Lessee, that he might take Con­venient Housebote, Firebote, &c. in his whole Wood called S. within the Parish of S. which Wood was other Lands, and not par­cel of the Land Leased. Resolved, the grant was good, and the Lessee should have it during the Term, and his Executors shall take the same as his Assignes, and the grant shall not restrain him, but that he shall have Housebote, Firebote, also in the Lands Leased to him.

24. A man seised of a Mannor parcell in Demesne and parcell in service deviseth to his Wife for life, all the Demesne Lands, and all the services and chief Rents for 15. years; and deviseth the whole Mannor to another after the death of the Wife. Resolved, That the Deviser should not take any effect for any part of the Mannor, till after the death of the Wife, and that the Heir of the devisor after the 15. years spent, and during the life of the Wife, should have the ser­vices and cheif Rents.

25. Tenent in Dower makes a Lease for years rendring Rent, and takes Husband, the Rent is behind, the Husband dyes; Ad­judged, his Executos shall have the Rent.

26. A man destrains for 10 l. Rents due at Mick. Cattel which were not of the value of 40 s. and afterwards destrains for the Resi­due. Adjudged he cannot avow, for the distresse is not good; and it was his folly so to distrain. But if a man be behind of hi [...] Rent at several dayes, and he take a distresse for one day at one time, an [...] for another day at another time, it is good.

27. Resolved, That a Custome, That a Lessee for years, may hold the Land for half a year after his Term ended, is no g [...]o [...] Custome. But the Lord of a Copyhold may by Custome Lease th [...] same for life and 40. years after: and it is good.

28. Upon an Extent, the Sheriff returned that he hath extended a Tenement at 20 s. paid; but doth not make mention of any House Land, nor pasture which should make the Tenement; Adjudged the nor Extent was void for the incertainty.

29. If a man be Robbed, and afterwards for mony he agree [...] with the Felon, that he will not give evidence against him, for which the Felon Escapes, It was doubted whether he was accessary to the Felon; But it was agreed, That if after the Robbery, h [...] [Page 5] pursue the Felon and take his goods of which he was Robbed, and so suffer the Felon to escape, the same is a Concealment of the Felony, but he is not Accessary to it.

30. A Women Tenent in Tail makes a Lease for years to her Husband and dyes, The Husband being Tenent by the Curtesie surrenders to the Issue; Adjudged, the Issue shall avoid the Lease.

31. A man says, I will you shall have a Lease for 21. years of my Land in D. paying 10 s. Rent, make a Lease in Writing and I will seal it; Adjudged, It is a good Lease in years by paroll, though no Writings be made of it.

32. Land was let to I. S. Habend. to him for life and for the lives of I. his Wife and his Son. Quaere What estate I. S. shall have? and if there shall be an Occupancy in the Case. It was not Resol­ved.

33. If my keeper of my Park will not serve a Warrant which I send him, nor suffer it to be served: Resolved it is no forfeiture of his Office, but only a Disobedience and a Misfeasance, which is not a forfeiture: But cutting down of Trees is a forfeiture of his Office.

34. A man made a Lease for years, the Leasor sold the Trees grow­ing upon the Lands, the vendor cut them down; The Cattel of the Lessee which were in the Close destroyed the springs: Resolved, That the Leaser could not take the Trees growing upon the Land; and it was a wrong in him to cut them down, and it is not reason that he should by his own wrong should compel the Lessee to enclose the Lands: wherefore Adjudged it was no Wast.

35. In a Replevin, the Plantiff being Lessee for years prayd in aid of his Leasor, and upon Issue joyned upon a false verdict it was found for the Avowant. The Plantiff and the prayee in aid joyned in Attaint; and pendent the Attaint, the prayee in aid which was his Lessor dyed: Resolved, That the Writ should abate; for the prayee is dead who ought to recover the Reversion by the At­taint; and his Heir should be at great mischief, If the Attaint be found against the then Plaintiff, who then should louse his Re­version.

36. Resolved by the Court, That if an Obligation or a grant be raised after the ensealing of it, it is void; but it is otherwise of an Indenture, if it agreeth in words with the other Indenture: and it was agreed If a man be bounden in an Obligation which is rased, and the Obligation is endorsed with a Condition to perform the Co­venants in an Indenture; and the Indenture expresserh the debt, not­withstanding the rasure of the Obligation; the Plantiff must shew the Indenture to prove the Bond good.

[Page 6] 37. Action upon the Case for words, viz. Thou art a False Knave, a Wretch, and a Whoremonger; Adjudged actionable, although for the word Whoremonger he might have his remedy in the Spiritual Court.

38. A man hath Issue a Bastard, and after marryes the same Wo­man, and hath Issue by her, divers Sons; and then deviseth all his Goods to his Children. Quaere, If the Bastard shall take by the Devise; But if the Mother of the Bastard make such a Devise, It is clear the Bastard shall take; because he is known to be the Child of the Mother.

39. Lessee for years, Proviso he shall not assign the Term, nor any parcel of it, without the assent of the Lessor. Resolved, He cannot give, grant or sell it without assent of the Lessor. But agreed, That the Executors of the Lessee may assign it without assent of the Lessor.

40. Resolved, That if the Lessor makes a Letter of Attorney to his Lessee for years to make Livery of the Land in Lease to a Stranger, who doth it accordingly: That it is not a surrender of his Term, for he doth not make the Livery in his own right, but as Servant to his Lessor, and by his authority.

41. Resolved, That if the Lessor infeoff a Stranger, and makes Livery, the Lessee for years being upon the Land, who agrees to it, It shall enure as an Attornment, and not as a Surrender: but if the Lessee be not upon the Land, then it is not a Feoffment; and when the Lessee enters again he shall have his Term, and the Feof­fee the Reversion; and if the Lessee be upon the Land, and de­nyes the Lessor to make Livery, notwithstanding that Livery be made, nothing passeth by the Feoffment, nor is a grant of the Re­version.

42. Lessee for life of a Mannor seizeth an Estray and dyeth before the year and the day passed. Resolved, the Executors of the Lessee shall have it, and not he in the Reversion; for although the Lessee had not an absolute propriety in it during his life, yet when the year is past, the property shall have relation to the time of the Seizure.

1, & 2 Ma.

Stapleton and Trewlocks Case. 43. Debt by Executors of I. S. against A. Trewlock, Admini­stratrix of Rich. Trewlock. The Will was, That the Testator made the Plaintiff and Rich. Trewlock his Executors; but said fur­ther [Page 7] in his Will, I will my Friend Rich. T. shall pay to my other Executor all such debts as he oweth me before he shall meddle with any thing of this my Will, by reason I have made him one of my Executors for the discharge of the said Debt. The Defendant aver­red Trewlock in the Will, and Trewlock the Intestate to be one and the same Person, and said, He in his life had paid to the Executor the debt in demand, and all other debts which he owed at the time of the death of the Testator. Adjudged, that the Dfendants plea was not good, because she ought to have pleaded an Acquittance of the said debt; for that payment without an Acquittance is no plea; and for the other Debts she ought to have shewed them certain, and pleaded payment of them; and she should have shewed that T. administred with the other Executor.

Agar and Bishop of Peterborough's Case. 44. Quare Imp. And for Title to the Avoidance the Statute of 21 Hen. 8. taking a second Benefice with Cure was pleaded; Issue was upon the Induction. By which it seemed to be admitted, That Admission and Institution did not make the first Benefice void without Induction.

45. Resolved, That upon an Appeal of Manslaughter, the Party may challenge 20. peremptorily, as well as upon an Indict­ment.

46. Upon an Habere facias seisinam upon Recovery of Dower of 3. Mannors. Resolved, The Sheriff cannot give her seisin of one Mannor; but he must give her seisin of the third part of every Man­nor. But if the Recovery be of all Lands, viz Meadow, &c. Pasture; the Sheriff may assign her her Dower in the Meadow only.

The Queen and Deans Case. 47. Writ of Disceit by the King and Queen upon a Fine levyed by C. to D. of Lands in antient Demesne, who rendred to C. for life, reversion to K. D. dyed pendent the Writ. Resolved, The Writ shall not abate, because it is in the nature of a Trespasse, which doth not demand the Land, but is to punish the Disceit.

Tuck and Frenchman's Case. 48. A. seized of Lands in Fee holden in soccage, devised the same to C. F. and the Heirs males of his body; and if he dyed without Heirs males of his body, the Remainder, &c. C. F. dyed without Issue male of his body. Resolved, That C. F. had not general tail, but special tail to him and the Heirs males of his body.

Joslin and Chelstons Case. 49. Assumpsit, In consideration of a Marriage of the Son of the plaintiff with the Defendants Daughter; the Defendant assumed to pay to the Plaintiff 40 l. in 7. years next following by equal [Page 8] portions; Found upon Non Assumpsit for the Plaintiff; and because one of the 7. years was to come at the time of Action brought, the Judgement was stayed.

3, & 4. Ma.

Eaton Colledge Case. 50. A Lease was made by the Dean and Chapter of the Colledge was of Eaton, whereas they were incorporated by the name of Dean and Chapter of the Colledge of St. Maryes of Eaton. Resolved the Lease was void for the Misnosmer.

Stokes and Porters Case. 51. Debt upon an Obligation against the Defendant, Executor of I. S. who pleaded that he was not Executor, nor administred as Executor; It was found that he received a Debt of 7 l. which was due to the Testator, and made an Acquittance thereof, and took possession of other Goods of the Testator, and converted them to his own use. Adjudged, That it was an Administration.

Hill. 2 Eliz.

Helior and Okedens Case. 52. A Lease was made to I. S. of the Mannor of F. Habend. from Mich. last past for 20. years; and by the same Deed it was agreed, That after hold expiration of the 20 years that the said Lessee, his Wife and their Son should have, hold and enjoy the Mannor, Ha­bend. for their lives, & cuilibet diutius vivent, and he made a Letter of Attorney to make Livery secundum formam of the said Grant and Lease. Resolved, If the Deed was delivered by the Attorney, and Livery made at one time, it was a good Lease for years, with a Remainder for their Lives: but if the Deed was first delivered by the Lessor to the Lessee, and after Livery and Seisin by the Attorney, there the Livery was void.

Thorn and Rolfes Case. 53. Dower. The Defendant pleaded that the Husband of the Demandant was alive at Canterbury, in Com. Kent. The Defendant said, her Husband dyed at F. in the Parish of P. in the said Coun­ty of K. upon which they were at Issue; Day given to make Proofs, the Plaintiffe examined her Witnesses in Court; the Defendant examined no Witnesses, Judgement was, the Plaintiffe should [...]cover her Dower.

Hill. 3 Eliz.

Corket and Sheldons Case. 54. A. in consideration of a Marriage intended betwixt him and B. by Deed covenants with S. to execute an Estate in Fee to the use of the said A. for life, and after to the use of the said B. for by and untill the Son, or one of the Sons of the said A. of the body of the said B. begotten, shall accomplish the age of 21. years. The Marri­age takes effect. A. dyed without Issue between them, and before any Issue had. Resolved, That B. had a good Estate for life before any Issue, and in Case there was no Issue. But if there had been Issue which had accomplisht 21. years, the Estate of B. had been abridged.

3, & 4 Eliz. in C. B.

Gower and Andrews Case. 55. In Trespass for cutting down of Trees; the Case was, A. a Woman in her Widdow-hood by Indenture bargained and sold to B. and C. all those Woods, Underwoods and Hedgerowes, as have accustomedly been used to be fallen and sold, standing, growing and being in, upon and within the Mannor of D. to have and to hold for the life of the said A. B. dyed, C. survived, and cut down by vertue of the said Bargain the VVoods and Underwoods growing and standing at the time of the making of the said Deed. Resolved upon this Bargain, when the Vendee had once cut down the Woods and Underwoods, that he could not cut them again, if Woods were standing and growing; notwithstanding the words in the Grant, viz. To Have, &c. for the life of the said A.

Wilson and Wise Case. 56. In Trespass for taking of his Cow: The Defendant justified that he was seised and held of I. S. as of his Mannor of C. by Fealty, rent & suit of Court of I. S. And that within the said Mannor the Custom was, That the Lord of the Mannor time out of mind, &c. after the death of every Tenant of any Messuage, or Tenements of the said Man­nor dying seised, used to seise the best Beast of the Tenants found within the Mannor for an Heriot; and if the Tenant had no Beast, or if it were esloyned out of the Mannor before the Lord seized it, Then the Lord had used to seise the best Beast Levant and Couchant upon the Messuage, Lands and Tenements. It was demurred upon [Page 10] the Custom, and it was adjudged that the Custome was void and unreasonable; and Judged for the Plaintiff.

57. An Infant by his Prochin Amy brought a Scire facias to exe­cute a Plea by Fine limited to his Grandmother. The Defen­dant prayed that the Attainder might demur. Resolved it should not: But if the Defendant had pleaded the Deed of the Ance­stour of the Infant in Barre, there the Plea should have stayed.

3 Eliz.

Austin and Bakers Case. 58. Attaint was brought into the Common Pleas upon the Statute of 23 E. 3. cap. 3. against the Executors of I. S. and the Terre Te­nants: and adjudged it was well brought, although the Statute is that the Attaint shall be between the Parties of the first Judgement.

59. A Subsidy is granted by Parliament, That every one who expends in Land above 20 s. shall pay. A man is assessed, and be­fore payment he dyes; the Lands in the hands of the Heir shall be charged with it, because it is a Duty upon Record; and the Land chargeable with it.

60. Judgement being against two; upon an Avowry in Replevin; They brought an Attaint, depending which, one of them dyed: It was adjudged, that the Writ should abate; and it differs from the Case of Nonsuit; for the Nonsuit is the Judgement of the Court, that the Heir may proceed in Suit; but when one is dead it is not so, for then no act is done by the Court.

61. Note, It was resolved, That after a Verdict given, it is no Plea for to say, that the Jurors did eat and drink: mean between the Court and their Verdict given; but such Exception ought to be before the Verdict given.

62. A Lease for years, the Remainder for Life, the Reversion in Fee; Lessee for years committed Waste; he in Remainder for Life dyed. It was holden by the Justices, That he in the Reversion in Fee should have an Action of Waste for waste done before the death of him in the Remainder; because that the mean Remainder was the Cause that he could not have the Action at the first: but when that Estate is ended, the Action is maintenable, because it was to the dis-inheritance of him in the Remainder in Fee.

63. Tenant in Dower had power to cut down the Trees growing upon the Land, and she covenanted with him in the Reversion, that [Page 11] it should be lawfull for him every year to cut down 20. Trees: and afterwards she cut down and destroyed all the Trees: It was the opinion of the Justices, That an Action of Covenant did lye against her; and it was agreed by them, That if a Covenant be, that it shall be lawfull for the Covenantee to take the Trees and sell them, or imploy them to his own use; That in that Case the Covenantor cannot cut down the Trees, because he hath given a propriety in the Trees to the Covenantee.

Mich, 2 Eliz.

64. Trespass. The Case was, A man made a Lease for years of Lands, a Stranger entred upon the Land let, and cut down Trees growing, and made them Tymber; and carryed unto the Land where the Trespass is supposed, and then gave the Timber to the Plaintiff: and the Defendant entred into the Land and took the Timber. It was the opinion of the Justices, That in all Cases where a thing is taken wrongfully, and altered in form, If yet that which remains is the Principal part of the Substance, the Notice of it is not lost; and therefore if a man takes Trees, and makes Boards of them, The Owner may retake them, quia major pars substantiae remanet, and so in the principal Case; But if an House had been made of the Tim­ber, there it had been otherwise.

65. Father and Son made a Feofment in Fee with VVarranty, the Father dyed: The Feoffee impleaded, brought a Warrantia Char­tae against the Son, unde Chartam Patris sui habet cujus haeres ipse est, and in his Count shewed the Deed was made by them both: It was the Opinion of the Justices, the Count was agreeable to the VVrit; and that the VVarranty against the Son was double, the one of his Father, the other of himself; and that each of them warranted the whole: so the Action well brought.

66. Resolved by the Justices, If Lessee for Life makes a Lease for years, and afterwards purchaseth the Reversion and dyeth within the Term, the Lease for years is determined: But if one who hath nothing in the Lands makes a Lease for years, and afterwards pur­chaseth the Lands and dyes, if it be by Indenture, his Heir is estop­ped to avoid the Lease.

67. Two Copartners are, one grants her Part, and warrants that the Grantee shall have and hold it in common without partition; It is a void Warranty, because it is against Law▪

68. A Lease was made to Husband and VVife for years, Provi­ded, that if the possession of the Lands came to the hands of any [Page 12] ther than the Husband and VVife, and their Issues, then upon tender of 100 l. it shall be lawful for the Lessor to reenter, the Husband dy­ed: the Wife took an other Husband, the Lessor tendred the 1000 l. It was the greater opinion of the Justices, That the Condition was not broken, because that the second Husband was not possessed by vertue of the Lease, but in the right of his Wife; But the Court doubted of it. It was adjourned.

68. A Capias ad satisfaciend, was awarded, and an Extent: and between the date of the Writ, and before the Sheriff took the In­quisition, the Defendant sold his Goods. It was the Opinion of the Justices, That the Sheriff might extend the Goods which were sold: and it was said, That if the Tenant in a Precipe allien after the date of the Writ, and before the Retorn, yet he continnes Tenant to the Action.

69. Note it was holden by the Justices, That if an Infant for Monies by Indentures bargain and sells Lands, and afterwards levyes a Fine Sur Conusans de droit with Proclamations; the Indenture is not void, but voidable, and the Use passeth to the Bargainee, and then the Fine being levyed upon it the Bargain is irrevocable, if not by Error.

70. Lord and Tenant by Knights service, the Tenant dyes, his Heir being a Daughter within age of 14. years, the Lord seizeth the VVard, and after at 13. years she marryeth without the assent of the Lord: It was the opinion of Wray, Justice, That the Lord should not have the forfeiture of the Marriage without tender; but o­therwise of the value of the Marriage; because that de mero jure per­tinet ad Dominum.

71. Lessee for years hath Execution by Elegit of the Moyety of the Rent and Reversion against his Lessor, the Lease being upon Con­dition. Resolved, That it is a suspension of the whole Condition during the Extent; and although but the moyety of the Rent was extended; yet the entire Condition was suspended and cannot be proportioned being entire.

72. A man was bound in a Bond to make a sufficient Lease to the Obliger before such a day, the same to be made at the Costs of the Obliger: In Debt upon the Bond it was a holden a good Plea, That the Plaintiff did not tender the Costs to him, and if then that he was ready, &c.

The Lord Windsors Case. 73. A Precipe was brought against him: It was, Edwardo Do­mino Windsor de London Militi, and because the word (Militi) was after the name of Dignity, the VVrit abated.

74. Entry sur Disseisin was brought, the Writ was of an Entry in [Page 13] duas partes in tribus partibus dividend. unius Messuagii: and not in duas partes unius Messagii, in tribus partibus dividend. and yet adjudged good.

Pasch, 3. Eliz.

75. Debt upon Obligation conditioned if the Obligator pay all such sums which he was Obliged to pay by his several writings Ob­ligatory: that then, &c. The Defendent said, That there were not any writings Obligatory by which he was to pay any sum; Adjud­ged to be no plea: because it is repugnant to the Condition, and he is estopped to say against the Condition.

76. Wast. The Case was: Lease for life, Covenanted to repair the houses at his proper Costs during the Terme. The groundsels of the houses were rotten, and the Lessee cut down trees upon the Land to repair them; Resolved he might do it, and it was not Wast, and his justification of it good notwithstanding the Covenant which shall not exclude him from that benefit which the Law gives him.

77. Debt against an Executour of an Executor; the Defendant pleaded, That the Executor his Testator had fully Administred, and so nothing in his hands. It was found, that he had Assetts; upon which a Fieri fac. issued to the Sheriff who returned he had nor any thing: adjudged a void Return, and the Sheriff was amerced; for if he had not goods of the Testator, he should be payed of his own goods, because when he pleads the first Executor had fully administred, he doth not deny but Assetts remained after the death of his Testator.

78. A grant was made per nomen Messuagii sive tenement. It was holden by Dyer, that neither a Garden nor Land do passe by the Grant, but nothing but the House and Carthage; Weston said, the Garden should passe with the Messuage with an Averment that they have been occupied together. Quere.

The Earl of Worcesters Case. 79. Debt was recovered against the Earl, and the Plantiff had an Elegit in the County of M. The Sheriff returned he had no goods nor Cattels, Land nor Tenements within his County: It was hol­den that after the year he might have a scire facias: and upon that that an Elegit: And it was holden that the party might divide his Execution; and have several Elegits into Several Counties; and to that purpose diverse Presidents were shewed by Lenard one of the Prothonotories.

Lady Audleys Case. 80. Detinue. A Woman delivered Goods to rebayl, and after took Husband, who after his Intermarriage released all Actions [Page 14] to the Baylee; Adjudged the Release was good; for that by the Intermarriage the Property of the Goods was in the Husband.

81. In Dower. The Tenant vouched the Heir of the Husband within the same County, and he appeared and entred into Warran­ty, as he who had nothing by Discent; Judgement shall be given presently, and the Sheriff by a special Writ shall put the Woman in Possession of all the Lands of the Tenant; and that to avoid Circuit of Action betwixt the Tenant and the Vouchee. Then the Question was, If the Heir had nothing by Discent but Lands in tayle, if they should be assigned to the Woman for her Dower: It was the greater opinion, she should not have Dower of the Lands in­tailed, because the Execution for the Wife against the Vouchee is given only for Avoidance of Circuit of Action, betwixt the Tenant and the Vouchee; and therefore it follows, That she shall not have Execution of other Lands whereof the Tenant could not have Execu­tion against the Vouchee, and the Lands intayled cannot be rendred in value.

82. A Lease was made to 3. Habendum to them and the Survivor of them modo & forma sequente, viz. to one for Life, the Remainder to another for Life, the Remainder to the 3d. for Life; It was hold­en they are not joynt Lessees by this Lease, but they take by way of Remainder: but if the viz had been before the Habendum, or no Habendum had been, then they had taken a joynt Estate, not­withstanding the Limitation by the viz. because the viz. is but a declaration of the precedent Text, and shall not confound the same: & mala est expositio quæ corrumpit textum.

Skernes Case. 83. A. by Indenture let an House to I. S. for 40. years. The Lessee by the same Deed covenanted with the Lessor, that he would repair the House during the Term; and that it should be law­full for the Lessor his Heirs and Assigns after the 40. years past, eve­ry year during the Term to come into the House to see if the Repara­tions were sufficient by the Lessee, his Executors or Assigns; and if it should be repaired upon the view of the Lessor, that then the Lessee should hold the Lease during 40. years after the first years ended. I. S. granted over his Term by these words, Totum interesse, terminum & terminos quæ tunc habuit intenementis illis. It was resolved in this Case; That the words in the Assignment did not extend but to the first Term; and therefore the possibility of the future Term did not pass, but that by the Assignment there was a separation between the first Term and the possibility, and by consequence the possibility determined. 2ly. That the want of the word (Assignes) did not hinder the possibility; for it was a thing inherent, which passed with­out [Page 15] such word; But yet they held, That if there had been the word (Assignes,) yet the Assigns could not have taken the possi­bility.

84. Debt upon Obligation. The Defendant said he was to pay 20 l. at a day, and at the time of the delivery there was not any Day written in the Deed, but a space for it; and that after the Delivery the Plaintiff put in a Day, and so Non est factum; It was con­ceived, the Plea had been better to have set forth the special matter, per quod scriptum prædict. perdidit effectum, and Judge­ment if Action.

85. Lands were given to Husband and VVife in tayle: The Hus­band by Fine and Deed inrolled aliened the Land and dyed. Re­solved, That the VVife might enter by the Statute of 32 H. 8. al­though the words are, Of Tenements, being the Inheritance or Free­hold of the Wife; And it was holden, That by the Entry of the VVife, the Inheritance of the Heir should thereby be recon­tinued.

86. A man made a Feoffment to divers persons that they should in­feoffe the Son of the Feoffor and his Wife in tail, the remaynder to the right Heirs of the Feoffor, who made the estate accordingly, and the Son dyed: It was Resolved the same was a Joynture within the Statute of 27 H. 3. cap. 10. for although she did not clayme it by the Ancestor himself but by his Feoff [...]rs, yet because the Feoffes de­rive their Estate from the Ancestors of the Husband, it is with­in the Statute; But if he had bargained and sold the same up­on trust to make the Joynture, it had not been within the Statute.

87. Resolved, That an Action upon the Case doth not lye for calling one Adulterer; because that is not punishable at the Common Law, but in the Spiritual Court.

88. Two Joynt tenants make partition by word, and for equality of the partition one assignes to the other a Rent; It is void, if he hath not a Deed of it.

89. In a Præcipe quod reddat, at the Nisi Prius the Tenant made default, and Petit Cap. returned, at which day, he in the Rever­sion prayed to be Received, and was so received by the Rule of the Court, notwithstanding he did not require it at the Nisi Prius. 2. By the Equity of the Statute of West. 2. he in the remainder shall be received upon the default of the Tenant for life, although the words of the Statutes be ad quos spectat reversio.

90. Resolved by the Justices, That the Coroner super visum Cor­poris cannot enquire of an Accessary after the Murder.

91. Two were joyntly and severally bound in an Obligation. [Page 16] in Debt brought; the Defendent said, the Plantiff recovered against the other the same Debt and had Execution; and adjudged a good plea, notwithstanding it was not shewed by what proces he had Execution, because the Execution is on Record and shall be tryed by the Record; but if he paid the monies in pais to the Plantiff, and not in Court, It is not an Execution of the Judgement.

92. A Recordare was to remove a Plaint in Curia nostra, and the plaint was in Curia Mariæ: Resolved, that for this variance the Record was not removed, for it could not be the plaint whereof, &c.

93. It was said, If the Defendant will plead to the Writ, mat­ter apparent within the Writ, he must begin his plea with Petit Judicium of the Writ, but if he plead matter de hors, as Joyntenancy or Nontenure, &c. he shall make the conclusion in such manner only, and not the beginning.

94. Ejectione firme: Of a Lease made by the Prebendary Eccle­siæ Beatæ Mariæ: whereof the foundation was Ecclesiæ Beatæ Mariæ de Thornton, and Thornton being omitted, the Leaser to make it agree, entertayned the words (de Thornton) It was the opinion of the Justices; That non est factum is no proper plea: because it was once his deed: but he is to shew the special matter, and demand Judgment of Action, vide before

95. A Rent was granted to I. S. for life, the remainder to I. D. in Fee, I. S. dyed, the Rent was behind, he in the Remainder de­straind and avowd for the Rent and good; for the grant was good to him in the remainder which took effect with the particular estate, and so adjudged.

96. One made his Will in this manner, I have made a Lease for 21. years to I. S. paying but 10 s. Rent; adjudged a good Lease at Will: and the word (I have) shall be taken in the pre­sent tence.

97. Replevin: The Defendant avowed for a Rent charge granted to him, but did not alledge any seisin of it within the years accor­ding to the Statute of 32 H. 8. Cap. 2. and yet holden good; for the Statute is to be intended where seisin ought to have been alled­ged before at the Common Law.

98. Dower. The Case was. The Husband made his Will, thereby de­vised all his Lands to his Wife, (the now demandment) during her Widdowhood, and dyed, the Wife entred by force of the Will, and after took Husband: It was the opinion of the Justices, that this estate devised being as great an Estate for her life, and her ac­ceptance of it; she not being Compellable to Marry, was in the nature of a Joynter to her, and a good barre of her Dower.

[Page 17] 99. Note by the Justices: If a man seised of a Rent charge be bounden in a Statute, and Execution be sued upon it, the Rent shall be extended in Execution, and yet the Statute de Mercatoribus speaks only of the Goods and Lands of the debtour, and doth not speak of Tenements or other things.

100. I. S. Tenant in tail by Indenture upon Consideration of Marriage Covenants to stand seised to his own use for life, and after his death to the use of his Son and heir apparant. Resolved, there is no change of the use but only during the life of the Tenant in tail.

101. A man seised of Land in the right of his Wife, makes a Lease for life, the remainder in Fee; and afterwards he and his Wife recovers the same Land in a Writ of Entry against the Tenant for life: Dyer held the Wife should be remitted, and no act shall be adjudged in the Wife, for the bringing the Writ shall be adjudged the sole act of the Husband, and not of the Wife. Quære if she shall not be estopped by the Record.

102. Note by the Justices, That a Writ of Curia Clauden­da, lyeth of a Close which lyeth in a Field, aswell as where there are 2. Messuages, Courts o [...] Gardens adjoyning: But after Imparlance in this Writ, the Defendant shall not have the view.

103. In a Quid juris Clamat, after Issue joyned upon Ne dona pass, at the Nisi Prius, the Jury gave a privy verdict, the Court being risen, for the Defendant, and had License to eat and drink; and at another day when the Court was sitting, they returned and gave an open Verdict for the Plantiff: Resolved, That Judgement should be entred for the Plantiff; for the last Verdict which is given openly in Court, is the Verdict in fact, and not the first; and the eating and drinking of the Jurours before the second Verdict given doth not make it void.

104. Note by the Justices, where in a Præcipe quod reddat brought against Tenant for life, he makes default; and he in the Rever­sion is received; he shall hear the Count made by the Tenant, and shall answer presently, and cannot have an Imparlance.

105. Resolved by the Justices, That Tenants in Comon cannot joyn in Waste, against their Lessee; but it is otherwise of Copartners, or Joynt Tenants.

106. In Debt, the Defendant pleaded to Issue, and afterwards brought a Writ of Priviledge out of the Exchequer, because he was a person Priviledged there: The Court dissallowed of the Writ, because by his pleading he had affirmed the Jurisdiction of the Court.

Hawle and Kirkbyes Case. 107. Covenant upon an Indenture dated 20 April. 4. E. 6. The Defendant pleaded in Bar a Release made 3 Eliz. of all Actions, Suits, Debts, Executions and Demands, which ever before he had or may have ab origine Mundi, to the day of the date of the Release; adjudged no bar because it was before the Covenant broken.

108. A man leaseth Lands for years; and afterwards by Deed Indented, bargains and sells the same Lands to the Lessee and his Heirs, without any word of guift or grant in the deed; That no­thing passeth if the deed be not Enrolled; for without Enrollment the Freehold doth not passe, and it is not any Confirma­tion.

The Lord Sands and Brays Case. 109. A scire facias by the Lord Sands against the Defendant to have Execution of Lands, whereof the remainder was entailed to his Ancestors by Fine; The Defendant said, The Plaintiff was within age and prayed, The parol might demur till his full age. The opinion of the Court was, That the parol should not demur, and by award of the Court the Defendant was put to Answer.

110. A man bargains and sells his Land by deed Enrolled; The bargainee, by the same deed Covenants, That if the bargainor or his Heirs pay to the bargainee or his Heirs 20 l. such a day, that then the bargainee and his Heirs and all other seised should be pre­sently seised to the use of the bargainor and his Heirs, before the day the bargainor tenders the mony to the bargainee, and he refuseth it; Resolved, that by the Tender, the Covenant is not performed; for the Covenant alters the use upon the payment, and nothing rests in the bargainor till payment.

111. It was Resolved by the Justices, That if a man by deed Leaseth certain parcel of Lands and names them severally, and af­terwards the Lessor raseth the deed, and puts one parcel out of the deed; that the whole deed is void for the deed is entire in it self, and cannot stand for part, and be void for part: But yet notwith­standing the Lease being of Lands the Lessee may plead it as a Lease parol.

Trinit. 4. Eliz.

112. Tenant in tail, the remainder in Fee, Tenant in tail aliens and dyes without Issue; he in the Remainder recovers in a Formedon brought being within age: Adjudged he shall not be in Ward, be­cause [Page 19] a Right of remainder discended only to him, and not a Remain­der in possession.

113. A man made a Lease for life, and afterwards was bounden in a Recognizance, and afterwards he granted the Reversion to an­other, and the Tenant for life attorned and dyed; the grantee en­tred, and the Recognizee sued Execution against the grantee; If the Execution was well sued upon the grantee, Quære; the Justices were divided in opinion.

114. Debt upon Obligation, The Defendant pleaded, that the plantiff by deed Indented betwixt them Covenanted and granted that if the Defendant paid him certain monies at a day certain, the Ob­ligation should be void, and that at the day he tendred the money and he refused it: The Court held the plea good without saying un­core prist.

115. Debt upon Obligation, the Condition was, if the Defendant paid to the Plaintiff or his assignes 20l. at such a day and place, that then &c. The Defendant said that the Plaintiff appointed one A. to receive the mony of him at the day and place, and that he tendred the same accordingly to the said A. which he refused. Resolved, the plea was good, without alledging payment in fact.

116. A. made a Feoffment in Fee, rendering rent with Clause of distresse, and afterwards bound himself in a Statute; and the day being incurred, Execution was sued by the Conusee; and the Sheriff returned the Conusor dead, and that he had extended the Rent: The Heir of the Conusor within age brought an Audita Querel [...]; and adjudged it did well lye, because there was an Ex­ception in the Writ of Extent, that if the Lands are discended to any Enfant, that the Sheriff should surcease to extend.

117. Debt against Executors, at the Pluries Distring as they appeared, and pleaded that they had fully Administred the goods of the Testa­tors, before any Notice given them of the Suit. The Plaintiff said, That upon the Original the Sheriff had returned them Summoned; It was the opinion of the Court it was no Estoppel against them, for it may be they were never Summoned, notwithstanding the return of the Sheriff.

The Archbishop of Yo [...]ks Case. 118. An action brought by him upon the Statute d [...] scandalis Mag­natum against I. S. because he put in a slanderous Bill against him, before the President of the Council of the North; surmising, that he was a Covetous and Malitious Bishop. Resolved, the words were not sufficient to maintain that Action.

119. A. seised of a Mannor holden by Knights service, devised 2. parts there of to 2. strangers severally, and all the Residue he devised [Page 20] to his Heir in Tail, the remainder over to another in Fee; It was the opinion of the Justices, that when he had devised 2. parts, he had done all which he could by the Statute, and the devise of the resi [...]ne was void; but the devise shall enure to the Heir of a third part of the 2. parts, that the devise which takes effect at the death of the dev [...]sor may take effect, and that especialle by reason of the Remainder; and so the Heir shall have a third part of the 2. parts; vide 3 H. 6. accordingly.

120. A. made a Feoffment in Fee to the use of another in Tail, the Remainder to the right Heirs of Tenant in Tail in Fee, Cestuy que use in Tail before the Statute of 27 H. 8. made a Feoffment in Fee, the Feoffee dyed; It was the opinion of the Justices, That when the Feoffee dyed during the life of Cestuy que use in Tail, the first Feoffees could not enter, for the discent was when they had no title of En­try, for by the Feoffment the Feoffee had title during the life of Cestuy que use in Tail; wherefore during his life they could not enter, nor make claim; But they agreed that the Heir of Cestuy que use in Tail had not any remainder but by the Entry of the Feof­fees.

121. A man made a g [...]ft entail upon Condition that if the Do­nee or his issue aliened, that the Donor might enter; the Donee a­liened and afterwards dyed without Issue; If the Donor might en­ter, or was put to his Formidon in Reverter, Quære; for the Justi­ces were divided in opinion, and it was not Resolved.

122. The reversion of a Lease for years was granted one moyety to one man, and another moyety to another; The Lessee committed Wast and then the Lease determined; They brought actions of Wast in the Tenant; It was the better opinion, that they might well joyn in the action, because they are not now to recover in the realty which is the Land Wasted, but only damages; but if the Term had conti­nued, it had been otherwise because then the Land was to be recove­red.

123. An Indenture of Bargain and Sale was Enrolled the last day of the 6. Moneths, not accounting the day of the date of the In­denture for part of the 6. Moneths. It was Resolved, that the En­ [...]olment was good; for the day of the date shall not be accounted part of the 6. Months limitted by the Statute; for the date and the day of the date is all one, for the date is all the day. And it was said, It was not like the Statute of 32 H. 8. of Leases, where it is said, A Lease made by Tenant in Tail shall be good for 21. years after the making of the Lease; for the making may be at one hour of the day and is prefect by the delivery at that time, and therefore the Lease shall begin presently; And in this [Page 21] Case, it was agreed for Law, That if a man by Deed Indented, Bargaines and Sells his Lands unto another, and before the enroll­ment of the deed, he Bargains and Sells to another, and the last Deed is first Enrolled, and after the first Indenture is Enrolled within the 6. Moneths; the first Indenture is the best and shall be preferred before the latter, although it was first Enrol­led.

124. By a Statute made 3. Ma. Cap. 4. Authority was given to Cardinal Poole, to dispose, order, imploy and convert the Bene­fices appropriate to the increase and augmentation of the Living of the Incumbent; He made a Lease for years of a Parsonage appro­priate; It was holden the Lease was void; for he had authority but to the Intents specified in the Statute, and he had not the Fee sim­ple given him by any words of the Statute. Quære, in whom the Free simple was; if in the Queen, or it was in Abeyance; not Resolved.

125. A Fine was Levyed in the time of King John, by which the Conusor granted to the Conusee in Tail a Mannor, rendring to him a pair of guilt Spurs for all services salvo sorinseco servitio Domino Regi. The Mannor was holden of the Lord Stafford. The Justices held it was but a Tenure in Socage, for the words salvo sorinseco ser­vitio were void to all purposes but to reserve such services by which he himself held of his Lord next paramount him, and not such ser­vices which any of the Lords paramount him held over by Knights service.

126. It was holden by the Justices, If a man find sureties for the Peace before Justices of the Peace in the County: yet if the same party come in B. R. and there make Oath, that he was afraid he shall be hurt by the said party, he may have surety of the Peace there a­gainst the party, and a Supersedeas to the justices to discharge the bond taken before them for the Peace and behaviour.

127. Note for a Rule by the Court, That in every case where the Defendent once confesseth a Deed, and after would avoid it by matter which makes the Deed defeisible, and not void: That in such Case he shall not plead Non est factum to it, but show the special mat­ter, and conclude Judgment of action; as if Debt be upon an Ob­ligation against one who was within age; He shall not plead Non est factum to it, but shew the special matter, that he was within age.

128. A Lease was made to the Husband and Wife, and to a 3d. person, to have and hold to the Husband for 80 years if he should so long live, and if he dye within the Terme, the remainder of the said Term to the Wife and to the 3d. person if he should live so long. [Page 22] It was Resolved a good Habendum, and that all the Interest was in the Husband, and nothing in the others till after his death; But it was holden, if a Lease be made to 3. of 3. acres, Habendum one acre to one for 20. years, of another to another for 40. years, and of the 3. to the 3d. person for 60. years, the limitation is void; for he cannot by the Habendum divide the estate in such manner which was joynt before.

Gascon and Whatleys Case. 129. A man seised of Lands in Fee, is bound in a Recognizance, and afterwards enfeoffes the Recognizee of parcel of the Lands; yet the Recognizor is chargeable for the Residue of the Lands to the Executor of the Recognizee, and for his body and goods, but if the Recognizor dye, h [...]s Heirs shall not be char­ged.

130. Cessavit. The Tenant said, That the demandant nor his An­cestors were never seised of the services within 40. years. It was holden by the Justices to be no plea, because this Writ is not within the Statute of 31 H. 8. cap. 2. of Limitation, and also because the seisin of the services is not materiall nor traversable in a Cessa­vit.

Mich. 5. Eliz.

131. Lessee for years Covenants for him and his assignes, that he will not lop nor top the Trees during the Terme, he dyes Intestate, his Adminstrators lop [...] the Trees; he is chargeable to the Covenant, because he hath the Terme to the use of the Testator: The Words in the Lease were, Provided, It shall not be Lawfull to the Lessee to top the Trees; If these words are a Condition, or a Restraint only, no penalty ensuing upon it, Quære. It was not Resol­ved.

132. The Queen by Letters Patents ex c [...]rta scientia & mero mot [...] granted to I. S. the Mannor of D. which she had by the Attainder of Sir Thomas Wyat, and in truth she was seised of the Mannor by dis­cent. Resolved, That the grant was void, because the Queen was deceived in her grant. Quære, if the same be not helped by the Sta­tute of misrecitalls, for when the substance of the thing granted ap­pears certain, the Statute helps all other defects; but when the cer­tainty of the thing granted doth not appear, then perhaps it is not helped by the Statute.

133. A Fine was Levyed by Husband and Wife, and the Conusee rendred back the same Lands to the Husband and Wife and to the [Page 23] Heirs of the Wife, and an Indenture was by which it was recited, that the Remainder should be to the use of the Husband and Wife and to the Heirs of the Husband. The Justices conceived, there is not any use implyed upon a Fine, no more than upon a Feoffment; wherefore they conceived, that the limitation over was good e­nough. Dyer said, If the Remainder be in tayl, the Conusee is seised of the Reversion to his own use, quod fuit concessum per les Justices.

134. A man granted unto another Herbagium & Pannagium with­in his Lands rendring Rent; the Lessor cut down the Trees: Re­solved, That Trespass would not lye by the Lessee against the Les­sor; but he might have an Assize, because it is a Profit Apprender in loco certo capiendo.

135. An Abbot was Parson imparsonee of the Church where the Abbot and Tythes were, the Abby was dissolved; The King grant­ed the Monastery to one; and the Parsonage and Rectory to ano­ther: It was the opinion of the Justices, That if the Land of the Abby was the Glebe of the Parsonage before the Appropria­tion, that that Land was discharged of Tythes, for it remains Glebe notwithstanding the Appropriation; and the Glebe cannot be gain­ed by Prescription, and the Glebe was never chargeable to pay Tythes; And if a Parson doth make a Lease of his Glebe, the Lessee shall not pay Tythes; But the Demeasnes of the Abby, not parcel of the Glebe, should be chargeable to pay Tythes, if they were not dis­charged in right by a Composition or unity perpetual.

136. A man made a Feoffment in Fee of Lands, upon Con­dition if he paid him 20 l. at the Feast of St. Mich. in St. Pauls Church, the Feoffment to be void; The Defendant in an Acti­on brought pleaded he paid the Money at the day and place: upon which Issue was joyned, and gave in Evidence, That he paid it before that day at another place. Resolved, That the Evidence did n [...]t maintain the Issue; For although the Party may pay it at ano­ther day and place, if the other will accept of it, yet he is not bound to receive it; and in as much as the Partie is restrained to a day, and the day is made parcell of the Issue, he ought to prove payment at the day, or alledge the special matter, and plead payment before the day, and acceptance thereof, as the truth of the Case is.

137. If a man be indebted to I. S. 100 l. and the Debtee maketh an Acquittance to him in Writing that he hath received 20. l. of him in satisfaction of the 100 l. of all other Debts, Duties and De­mands, the same is good, and amounts to a Release: but if it be without Writing, then payment of the 20 l. cannot be in satisfaction of the 100 l. by the Opinion of all the Justices.

[Page 24] 138. A man deviseth his Lands to his Wife de anno in aunum till his Son shall come to the age of 20. and dyes; the Wife enters, the Son dyeth before he attains 20 years. Resolved, the Interest of the Wife was determined: But if the Devise had been untill the Son should or might come to the age of 20. years, there, not­withstanding his death, the Estate of the VV [...]fe had conti­nued.

139. If a Grand Cape issueth where there was no Original be­fore, and Judgement be entred upon it. Resolvd it is not void, but voidable only by Error.

140. Ravishment of Ward of two Daughters, the Plaintiff de­clared to his Dammages of 100 l. and upon Nihil dicit had Judge­ment; and upon a VVrit of Enquiry the Jury found the Ravishment of the Eldest, and that she was married to the Plaintiffs dammage of 80 l. and of the other two to the value of 60 l. & pro raptu & abdu­ctione 100 l. and the Judgement was entred for the dammages pro raptu & abductione conditionally, if she was married.

141. A man seized of an Advowson in Fee granted to another and his Heirs, that when the Church should become void, that the Grantee and his Heirs should nominate a Clarke to the Grantor and his Heirs, and he and his Heirs should present him to the Ordina­ry. Resolved, That if he who hath the Nomination present, he which ought to present shall have a Quare Impedit against him, & [...] contra: But if an Annuity be brought against a Parson, the Aide is grantable onely of him who hath the Presentation; for that is in the right, and the right is in the Presenter.

142. Debt upon a Contract for 10 l. It is no Plea for the De­fendant to say that the Contract was for a lesser sum, than the sum contained in the VVrit, because the Defendant might wage Law of it.

143. Copyhold lands are demised to two for Life successive, where the Custome is they may cut Trees; Resolved, It is a for­feiture of his Estate, and of the Estate of him in the Remain­der.

Ter. Pasc. 5 Eliz.

144. Lands at the Common-law, and Copyhold-lands are leased by one Indenture rendring rent. Resolved, that the whole Rent shall issue out of the Lands at the Common-law, and not out of the Copyhold. But if a man leaseth Lands, a part of which he hath by Disseisin rendring Rent, there the Rent shall issue out of the whole [Page 25] Land; and by the Entry of the Disseisee, the Rent shall be appor­tioned.

145. A Composition was betwixt an Abbot and a Parson, that in recompence of the Tythes of all the VVoods within the Mannor, whereof the Abbot was Owner, that he should have to him and his Successor [...]0. loads of VVood every year in 20. acres of the said Mannor to burn and spend in his House; The Parsonage was ap­propriate to the Abby, and after the Abby was dissolved; and the King granted the Parsonage to one, and the 20. Acres to another: It was was resolved, That by the uni [...]y the Estovers were not extinct; for if they be Tythes they are not extinct by this unity of Possession, for that Tyths run with the Lands: and Tythes de jure Divino & Ca­nonica Institutione do appertain to the Clergy.

Eyres Case. 146. In Replevin. The Case was, the Archbishop of York was seized of a Field in B. in the right of his Church, and Leases the same by Deed for years rendring rent; which was confirmed by the Dean and Chapter. In the Indenture there was a Proviso, that in the vacan­cy of the Bishoprick, the rent should be paid to the Chapter as in his right; the Bishop dyed: I. S. was created Bishop, and was deprived because he refused to take the Oath of Supremacy. I D. was cho­sen and created Bishop, and for Rent behind and not paid to the Chapter in the time of the vacancy he avowed. In this Case these these points were resolved, 1. That the Proviso was well placed, and was a Condition being annexed to the Reservation of the Lease. 2ly. That the Successor might enter for the Condition broken in the time of his Predecessor. 3ly. The Bailiff of the Bishop could not enter for the Condition broken without a Special War­ranty. 4ly. That the Condition was repugnant, because he appoints the Rent to be paid to the Chapter in the time of the vacancy, the Reservation being to the Bshop and his Successors. 5ly. That no Title was in the Succcessor to enter, because the Condition was repugnant. 6ly. That the Chapters are not of Capacity to take by Purchase or Guift without the Dean who is their Head.

147. A man made his Will in this manner: Item, I give my Mannor of D. to my second Son. Item, I give my Mannor of S. to my said Son and to his Heirs. It was resolved by the Justices, that in the first he had but an Estate for life, and the Item seems to be a new Guift to a greater Preferment in the second place for the a­mendment of the other.

148. A man seized in Fee took a Wife, and afterwards levyed a Fine of his Lands with Proclamation, and 5. years passed in his life, he dyed, and after other 5. years passed. Resolved, That the Wife [Page 26] should be barred of her Dower, because she did not claim it within the 5. years after the Title of Dower accrued.

149. Assise against divers, who pleaded Nul tort, &c. the As­sise found, that all the Defendants were Disseisors, but that one of them did the Desseisin with force. It was the opinion of the Justices, That the Verdict was good, for that the Force and Disseisin was two things; for Force is not incident to every Disseisin, for it should be enquired by the Assise if they or any of them had done the Dissei­sin with force; and if Lessee for years be re-ousted with force, and he in the Reversion bring an Assise, and the Disseisin is found with force, yet the Force is not punishable, for the Force was to the Lessee for years.

150. Nota. It was resolved by the Justices, That if the Deman­dant do recover in an Assise, he may enter and execute the Judge­ment without being put in seisin by the view of the Recognitors of the Assise: but if he be disseised again, he shall not have Re-disseisin, but is put to his Writ of Post disseisin.

151. Note, It was agreed by the Justices, That if Tenant in tayl discontinue and dyeth, and an Ancestor Collateral in the life of the Tenant in tayle releaseth to the Discontinuee with warranty, and dyeth; and afterwards the Issue in tayle brings a Fo [...]medon, and is barred by the Collateral warranty (if after, that which was a Collateral warranty become a lineal warranty, as it may;) yet he and his Heirs shall never have remedy against that Bar; But if an Exchange be between Tenant in tayl and another, and the Tenant in tayl dy­eth, and the Issue enter into the Lands taken in Exchange, and afterwards brings a Formedon, and is barred and dyeth; yet his Issue may enter into the Lands exchanged, or recover the same by Acti­on, notwithstanding the bar in the first Act [...]on, for that is out a warranty in Law, which is not so strong as a warranty in fact: but he may disagree to the Exchange and enter, or bring his Action at his Election.

152. A man leaseth a Mannor to another with all the members and appurtenances, To have and to hold all the members of the said Mannor to the Lessee for years. It was holden, It was a good Lease of the Mannor for years; for the limitation of the word Mem­ber was void, and so it was a good Lease of the Premisses without the Habendum.

Sutton and Robertsons Case. 153. In Ravishment of Ward, the Case was, Lord and Tenant: The Tenant enfeoffeth the Lord and another of the Tenancy; and they reenfeoffed the Tenant. It was resolved by all the Justices, That the Seignory was extinct; for by the Feoffment to them all [Page 27] the Seignory was suspended in their hands, and then when they de­parted with the Lands discharged of the Seignory, it was an Extin­guishment of the Seignory: and when the Lord joyned with his Companion in the Feoffment, all passed by the Feoffment of any of them, and if the Lord releaseth all his Right in one Acre of the Lands holden, it is an Extingushment of the whole Seig­nory.

154. A man by his Will deviseth his Lands to his Wife to im­ploy and dispose them upon herself and his Sons at her will and pleasure. Resolved, It was a good devise in fee to her, but the Estate in her was conditional by reason of the words eâ intentione, which makes a Condition in a Devise, but not in a Feoffment, Guift or Grant.

155. A man recovered and sued forth a Capias ad satisfaciend. to the Sheriff, who arrested the Defendant, and he after escaped, and at the day the Sheriff did not return his Writ: A Sicut alias issued to the Sheriff; upon which the Sheriff arrested him again, and the Defendant brought an Audita Querela. Resolved, the Writ did well lye; for although the Par [...]y himself might have a false Imprisonment against the Sheriff, because he had not returned his Writ, and so was a Trespassor ab initio, yet by the first taking in Execution the Arrest cannot be lost by the not returning of the Writ, but having respect to the Party Plaintiff he is in Execution by the first taking presently: And in this Case it was said, That if a man be condemned in Debt or Trespass and be taken in Execution, although he be chosen a Burgesse of Parliament, he cannot have the Priviledge of Parliament to discharge him of the Execu­tion.

Term. Pasc. 6 Eliz.

Broughton and Conwayes Case. 156. Debt upon Obligation. The Condition was, whereas the De­fendant had sold to the Plaintiff a Lease of the Mannor of S. that he should not do nor had done any act to disturb the Plaintiff of the pos­session of it, but that the Plaintiff should hold & enjoy it peaceably, without the disturbance of the Defendant or any other, and assigns a Breach, That A. had brought a Writ of Dower against one B. of the said Mannor, and had Judgment and Execution, and so he was distur­bed. The Defendant said, That the Recovery in the Dower was before the sale made to the Plaintiff. Resolved, The Plaintiff should be [Page 28] barred, because the Defendant is not bound by the words of the Con­dition to warrant the peaceable possession to the Vendee, but only for acts by himself done or to be done, and here no act was done by him.

157. It was holden by the Justices, That in an Action brought upon the Statute De Malefactoribus in parcis, That notwithstanding that the Queen pardons the offence, yet by the Statutee the Party hath remedy for the Trespass done to him.

158. A man made a Feoffment in Fee upon Condition, that if the Feoffor paid certain Monyes to the Feoffee before such a day, or to his Executors or Assignes, then he might enter before the Day the Feoffee made the Feoffor his Executor, and by his Will gave all his Goods and Chattels to his Wife and dyed. Brown Justice, held, That by making the Feoffor Executour, the Debt was released, because the Executor could not pay the Debt to himself: But the better opinion was, that the Feoffee was to pay the Money, being a thing Testamentary to the Wife, as an Assignee of the Feoffee: Quære, the Case was not resolved to whom the payment should be.

159. Dower brought; the Defendant pleaded that he had as­signed to the Wife 20 acres of Corn out of the Land in recompence of her Dower; and adjudged a good barr, as well as of Rent, or any other profit out of the Land.

160. Three Coparceners, Daughters, the one of them and her Husband enter into the whole (the other being supposed out of the Realm) in the right of his Wife; and afterwards the other two re­turn, and release to the Husband and Wife and their Heirs: It was holden, that the Release should enure only to the Wife and her Heirs, because the same enures only by way of Extinguishment, and the Baron is seised in the right of his Wife: But admit the Hus­band and Wife both enter and are Disseisors, then the Release shall enure to them both: and then when the Wife survives the Husband she shall have the whole.

161. It was held by the Justices upon the Statute of 31 H. 8. of Monasteries, That if a Woman who hath a Widdows estate of Lands holden by Copy whereof the Inheritance was in the Abby, That if the Abbot will make a Lease of the same in reversion, it is no good Lease by that Statute; but otherwise it is of a Lease at will by the Common-law.

162. Note by the Justices, If Issue be joyned, if a Church be void by a Cession, Deprivation, or Resignation, it shall be tryed by the Country, because it is a thing mixt; for the Avoydance is Temporal, and the Deprivation is Spiritual: But habilitie Bastardy, ne unque accouple en loyal Matrimonie shall be tryed by the Certificate [Page 29] of the Bishop; but Bastardy pleaded in a Stranger to the VVrit shall be tryed by the Country.

163. VVords spoken of an Attorney of the Common-Pleas, viz. He is the falsest Knave in England, and by Gods blood, he will cut thy Throat; Adjudged Actionable.

164. A man devised his Land to his wife for life, the Remainder to another for his life, and after their deaths he devised that the same Lands should be sold by his Executors or the Executors of his Execu­tors; he dyed after the Wife, and he in the Reversion dyed and during their lives, one of the Executors dyed intestate. It was the opinion of the Justices, That the Executors of one Executor should not make the sale, for they had authority joyntly, and if one of them fail, the other cannot execute the Testament; and so it was said it was adjudged in Franklyn's Case, where a man devised that I. S. and I. D. by advice of the Parson of D. should make sale of his Lands after his death, and before the sale, the Parson dyed, the other two could not sell the Lands.

165. Wast assigned in a Marsh for that the Lessee suffered a Sea wall adjoyning to the Marsh to be ruinous, by which by the flowing of the Sea the Marsh was drowned. The Court conceived, That if it was a small breach in the Wall, and the Lessee did not re­pair it, but suffered it to continue, it was waste; bet if it was sud­denly done by the violence of the water, the Defendant might plead that matter in barr.

Sir Edward Bray and Andrews Case. 166. Action for words, viz. My Master was not content to take my Living from me, but sent his Man Andrews to kill me. Resolved, the Declaration was not good for the incertainty; for the words, My Master comprehends a generality, and doth not refer to any Person certain; and therefore it cannot be intended the Defendant intended to tax the Plaintiff more then any other Person, and it may be he had at that time many Masters, and it ought to appear to the Court of what Person certain the Defendant intended the words.

167. An Action upon the Statute of Apparel, The Writ was Ad respondendum Dominæ Reginæ, quam I. S. Resolved the Action was not well brought, because the Queen and the Party cannot joyne in the Action, but they ought to have several Actions, viz. the Queen shall have an Action for her part, and the Informer for the other part; For although by the Premises of the Statute it is an entire duty, yet the sequel of the Statute determines how the penalty shall be taken, and it is as several forfeitures.

The Earl of Northumberlands Case. 168. Resolved one cannot have a VVrit of Forfeiture of Marri­age without a Tender made to the Heir: contra of a Writ De Valo [...]e Maritagii.

169. Upon an Exigent a Writ of Proclamation issued which was returned served, but the Name of the Sheriff was not to the Writ. Quære, if it be Error. The Court would advise of it.

Felton and Capells Case. 170. In a Formedon in the Discender, the Tenant vouched to Warranty I. S. who entred into the Warranty; and vouched I. D. It was the opinion of the Justices, That is a good Counter plea, that the vouchee nor any of his Ancestors had any thing after the guift, so as he could enfeoff him who vouched him.

171. In Debt upon an Indenture; the Defendant pleaded that it was rased after the delivery by the Plaintiff: But he cannot plead, That it is not his deed, and give in Evidence the rasure, but he ought to plead the special matter.

172. A Bishop made a Lease for years, which was confirmed by the Dean and Chapter, and after he let the same Land to another for 20. years, and afterwards before any Confirmation of it, he let the same Lands to a third person for 60. years, and the last Lease was first Confirmed, and after the Lease in Reversion was Confir­med also. Resolved, that that Lease was good, and the Confirma­tion good, notwithstanding the last Lease was first Confirmed; for the Lease is not to have any Interest by the Confirmation, but only to make it perdurable and effectual.

Squier and Reads Case. 173. It was holden by the the Justices in this Case, That it is a good Challenge in a Writ of Right to the 4. Knights, that they are not gladiis cincti: And a Challenge to them must be made upon their appearance; for after they are once sworn they are not Challenge­able: Also the 4. Knights are to make the Pannell, and they need not to put their Names to it at the Return of it, as the Sheriff useth to do; and they ought to return to be of the Grand Assise but 12. persons besides themselves.

174. A man had Judgment to recover in trespasse and had Exe­cution of the Reversion of a Lease for years and of the Rent. It was the opinion of the Justices, that the Rent and Reversion was pre­sently in him, and that he might avow for the Rent without al­ledging any attornment of the Lessee for years.

175. Debt upon Obligation, conditioned to pay mony to the Ob­ligee and the Parishoners of D. at such a Feast: payment to the Obligee and two of the Parishoners of the Parish is good; [Page 31] and it is not requisite the payment be made to all the Parish­oners.

176. In an Assise of Novel desseisin the Assise passed against the Plantiff, who thereupon brought an Attaint, and alledged that the Jurors to the Attaint, had not the view of the Tenements in demand. It was the opinion of the Court, that after the Verdict given, it cannot be alledged, that the Jurours had not the View; and Judge­ment was given without the View.

177. In Dower, the Defendant pleaded, That the Husband of the demandant did not dye seised; so that she could not have damages, and because there were Woods upon the Lands, she pray­ed a Writ of Estrepment. Quære, if it doth Lie, It was not Resol­ved.

Griffiths Case. 178. Lessee for years suffered the Banks of the River of Trent, which ran by the Lands let, to be unrepaired; so as the Water brake the Banks and drowned the Lands: Adjudged, That River was not so violent, but that the Lessee by his Industry might repair the Banks, and to make the water run in its Current, and therefore ad­judged, it was Wast.

179. Debt was against Executors upon an Obligation which was, that if the Testator or his Executors at Mich. every year during the life of the Obligee delivered to the Obligee a Load of Dung, that then, the Defendants pleaded, that they and their Testator had performed, not shewing how, which was found against them; It was adjudged, that for this false plea of the Executors, Judgment should be a­gainst them, de bonis propriis.

180. One was named in the Original in Debt. A. B. of C. in the County of Denbigh, He appeared upon the Cepi Corpus, and said that he was dwelling at D. at the time of the Action brought; It was holden, it was No plea, that he was not dwelling at C. at the time of the Action brought, unlesse he say Ne unque puis.

181. Lands in London, which by the Custom were deviseable, came to the King by Escheat, who granted them over to I. S. to hold by Knights service. It was holden, That notwithstanding the Statute, the devise of the whole Land was good as it was by the Custome, which is not taken away by the Statute.

182. The King by his Letters Patents gave authority to his Sur­veyour to make Leases of certain Lands for life, reserving the anti­ent Rent: He by Indenture between the King of the one part, and I. S. of the other part: Quod Dominus Rex dimisit, &c. and the Surveyour put his own Seal to the Deed. It was adjudged a void [Page 32] Lease; for he ought not to have put his Seal to it, but the Seal of the King: and it cannot be the Lease of the King without his Seal.

183. Grandfather, Father and Sonne, The Grandfather is Tenant for life, the Remainder to the Son in tayl, the Remainder to the right Heirs of the Grandfather: The Grandfather suffers a Recovery and levyes a Fine with Proclamation to I. S. and after the Statute of 27 H. 8. is made, and the Grandfather enfeoffeth the Sonne of the Land and dyeth. Resolved, that the entry of the Father upon the Son was lawful, and he shall not be estopped by the warranty of the Grandfather; for that the Warranty was gone by the reprisal of the estate, and it was holden, That although the 5. years were past in the life of the Grandfather, yet when the Grand­father dyes, the Father shall have other 5. years to make his Entry, or clayme, and that by the Statute of 4 H. 7.

184. Lessee for years rendering Rent upon Condition if the Rent be behind, the Lessor to Reenter, a Recovery in Debt is had a­gainst the Lessor, and the Reversion and Rent extended by Elegit and given in Execution, It is a good Execution and the Condition suspended, so as if the Rent be behinde, the Lessor cannot enter in­to the other moety.

185. Two Tenants in Common of a Wood; one Leaseth his part for years who cuts Trees and commits Wast, he shall be punished for the moety of the Wast, and the Lessor Recover the moety of the Land Wasted.

186. The Dean and Canons of Windsor were Incorporated by Act of Parliament, by the Name of the Dean and Canons of the Kings Free Chapel of his Castle of Windsor, and they made a Lease by the Name of the Dean and Canons of the Kings Majesties Free Chapel of of the Castle of Windsor in the County of Berks. Resol­ved, the Lease was good; for although the King in the Act of Parliament call it his Castle, yet when another speaks of it, it is more apt to call it the Castle, and therefore such variance shall not avoid the Lease.

Newdigates Case. 187. Lessee for life and he in the Reversion joyned in a Lease for years, Lessee for life dyed, the Lessee committed Wast. Resolved, that during the life of the Lessee for life, it was her Lease and the Confirmation of him in the Reversion: But when the Tenant for life dyed, then it was the Lease of him in the Reversion, and that he should have an Action of Wast ex divisione propria.

188. A man hath 3. daughters and Covenants with I. S. that he shall have the disposition in marriage of one of them; the Election is in [Page 33] the Father, of which of the daughters the other shall have the Mari­age; and he is not to deliver the daughter till request; but upon request he is to deliver the daughter to I. S. otherwise he cannot have the effect of the Covenant.

189. In a Writ of False Judgment, the Sheriff returned Quod accept is secum 4. legalibus Militibus de Com. suo accessint, &c. Et recordum illud habeo, &c. coram, &c. sub sigillo meo & sigillis præ­dict. Militum; It was adjudged to be no good return; nor the Record removed, but it ought to be sub sigillis ex his qui Recor­do illo intersuerant, and not of the 4. Knights.

190. It was holden by the Justices, that if upon the Exigent the Defendant hath a supersedeas, but doth not deliver the same before the 5th County, so as he is returned Outlawed, yet because the Supersedeas was upon Record, the Justices held the Outlawry to be void.

191. A Writ of Wast was Quod secit vastationem in the Land, and assigned the Wast in cutting down of Trees; It was holden that was not good, but if he had assigned the Wast in digging of Clay or such other things, it had been otherwise, for that is Wast in the Land.

192. A man devised his Lands to his eldest Son in Tail, the re­mainder to his youngest Son in Tail, the remainder to his Daughter in Tail, and if they all dyed without Issue, that then the Land should be sold by his Executors; the eldest entred and dyed without Issue, the younger Son entred and suffered a Comon-Recovery, and after dyed without Issue, and the daughter also dyed with­out Issue. Resolved, That the Executors could not now sell the Land.

193. Note, If an Enfant levy a Fine, and take back an Estate for life or in Tail by render, he shall not avoid after the Fine by Error, but is without remedy.

Hawtree and Angers Case. 194. Debt against A. B. and E. the daughter of C. Coheirs in Gavelkind upon an Obligation of their Father A. and B. were Out­lawed and had their pardon, E. the daughter of C. who was dead, was waive; The Plaintiff declared against A. and B. simul cum E. who was waive; The Defendants pleaded that E. now one of the Heirs in Gavelkind was within age; It was Resolved, that the Heir of an Heir should be chargeable with an Obligation simul cum the immediate Heirs, and that such Heir should have his age; and if he was within age, the parol should demur for them all,

Mich. 7. Eliz.

Swann and Searles Case. 195. Covenant against A. and B. Executors of I. D. I. D. was Tenant for life, the remainder to A. I. D. by Indenture demised the Land to the Plaintiff for years, rendering rent by the word dimisit & Concessit, I. D. dyed, A. who was in the remainder entred and avoided the Terme; and thereupon the Plaintiff the Lessee for years brought the Action against the Executors of I. D. and it was ad­judged that the Action did not lye.

Mich. 7. Eliz.

Worleyes Case. 196. An Enfant was bound in a Statute of 600 l. and afterwards was taken in Execution upon it, and at full age he brought an Au­dita Querela, to avoid the Execution: The Case was argued by the Judges, and at length Resolved, That the Audita Querela should abate; For it was Resolved, that if any Enfant acknowledge a Statute, or Recognizance, or Levyeth a Fine of his Land, he shall not reverse it by Error or otherwayes, when he is of full age, it being matter of Record; but if he will avoid it, it must be during his Minority.

197. One came to an Inn and brought goods with him, The In­keeper said to him, There are many resort to this House, and I do not know their behaviour, therefore here take the Key of such a Cham­ber and put your goods there, for I will not take Charge of them, and afterwards the goods were stolen. It was the opinion of Wrey Justice, that an Action did lye against the Inkeeper, for he is by the Law chargeable with all things which come into his Inn, and by Law he cannot discharge himself by such words as are in this Case.

Price and Jones Case. 198. Error by A. and B. against I. S. of a Judgment in an Assise of Novel Disseisin given by the Justices of Assise at Mon­mouth; It was demurred unto, and Adjudged here in C. B. That a Writ of Error here upon that Judgement did not lye.

Stakely and Thynns Case. 199. In Debt the Plantiff and Defendant both appeared by their [Page 35] Attorneys and day was given to the parties in statu quo tune, till 8. Hill. at which time the Defendant made defaust; Holden the Plantiff should not have Judgment, because Dies Datus, is as strong as an Imparlance.

Lucas and Cottons Case. 200. Words, viz. George Lucas is a false Knave and worthy to stand upon the Pillory. The Defendant Justified, because the Plantiff swore his debt falsely to be true, upon an Attachment according to the Custome of the City of London; which by the Court was holden to be a good justification, wherefore adjudged against the Plantiff.

Slisield and Sibills Case. 201. Debt by Husband and Wife upon a Lease for years; the Defendants said, that they had not any thing in the Land at the time of the Lease, as to part; It was found that they had and did demyse, and as to other parts that they did not demyse; It was holden, the Plantiffs could not have Judgement for any par­ty.

Arden and Mischells Case. 202. Replevin. The Defendant avowed as Bayliff to the Coun­tesse of Rutland for Rent; The Defendant said, that the Abbot of C. 29 H. 8. was feised and made a Lease to I. S. for 60. years render­ing Rent, viz. 22 s. and expressed the same by such figures, viz. 22 s. and that after the making and delivery of the Indenture, the Plantiff caused the said 22 s. to be rased into the forme of 5. and after the said 5. caused to be adjoyned the Letter (m) by which the Indenture was void. It was the opinion of the Justices that by such rasure the deed was void.

B [...]lfield and Rouse Case. 203. Dower. The Defendant pleads as to part in abatement, that he was not Tenant, and as to the Rest, he pleads a gift in Fee to the Husband by which he claimed the Land as Brother to the Husband; and also pleads a Will by which he was entitled to other parts, both which the Plaintiff did Detain; Upon Non Detinet, it was found for the Plaintiff, and she had Judgment for damages from the death of the Husband.

Watson and Bishop of Cant. Case. 104. In a Quare Impedit, the Defendants at the Distresse made default, and Judgment was given for the Plaintiff against all the Defendants to recover damages, because they were supposed all distur­bers by their default, but the Plaintiff was compelled to make Title.

Bullock and Bardetts Case. 205. The Case was, the Bishop of Salesbury in temps R. 2. made a Feoffment in Fee of a Messuage and 3. Roodes of Land in Erbon­field, parcel of the Mannor of S. nec non of 17. Acers of Wood in a great Wood containing a 1000. Acres to Bullock and his Heirs, and after 5. discents the Land came to the Plaintiff, who 6. of the Queen entred into the great Wood, and made election of the 17. Acres in a place called Saltors Hill parcel of the said great Wood, and distinguished them by Metes and Bounds; The Question was, if the 17. Acres passed to G. Bullock, and whether the election of them by R. Bullock his Heirs in the 5th. discent was good or not; It was the opinion of the Justices, that nothing thereof was vested in G. Bullock the Ancestor and the Election to have the 17. Acers was not given to the Plantiff the Heir, for that nothing was in the An­cestors which might discend to him, and as a purchasor he could not take for that nothing was given to him.

Pasc. 10 Eliz.

The Lord Dacres Case. 206. The Lord Dacres and others agreed to enter into a Park and hunt there, and to kill those who should resist them: They entred, and I. S came to one of them, and asked one of them what he had to do there, and the other killed him, the Lord be­ing a quater of a myle distant from the place, and knew not of it. It was adjuged Murder in him and all his Compani­ons.

Sir Rich. Mansfields Case. 207. Difference being betwixt Sir Rich. and one Herbert for Wreck of the Sea, they appointed a Duell; Herbert with his Ser­vants came to Sir Richards house to fight with him; a Friend to them both, perswaded with them to take up the matter; One of the Servants of Sir Richard cast a Stone at Herbert and his Servants, and perchance therewith killed their Friend: It was ad­judged Murder for the Malice which he had to Herbert.

208. A man made a Lease for years upon Condition if the Rent was behind the Lease to be void; the Rent is behind, the Lessee continued possession for 3. years after, the Lessor brought debt for the Rent for all the time, Quære, if it doth lye; the Justices were divided in opinion.

Moreton and Hopkins Case. 209. In a second Deliverance by A. against H. the Defendant, he made Conusance, as Bayliff to I. S. and M. his Wife: The Case was, the Plain [...]iff 17 Octob. 4. & 5. Mar. by deed granted a Rent of 10 l. to B. and to E. and W. the younger Son of the said A. Habend. for the life of E. to the use of E. and gave seisin of it; W. and E. so seised; W. dyed, E. took Husband I. S. who for 5 l. Rent arrere avowed. The Plaintiff said, That the said I. S. Z October 7. Eliz. acknowledged that he had received 5 l. of the Plain­tiff of the said Rent; It was adjudged, that the said receipt and acquittance of I. S. the Husband was a good barre of the Conu­sans.

Howse and the Bishop of Elys Case. 210. In Debt the Plantiff declared, that the predecessor of the Bishop granted to him the Office of keeping the Mansion House of D. of the Bishop, for the Term of his life; with the Fee of 2d. per diem to be issuing and paid out of the profits of the said Rents and Farme of D. by the Receiver of the Bishop: and also an yearly Robe, which grant was confirmed by the Dean and Chapter; the Bishop dyed, the Annuity and Robe was not paid, for which the Plaintiff brought his Action against the Successor Bishop, who pleaded that the Plaintiff did not exercise the said Office, and because D. was within the Isle of Ely, where the Kings Writ did not run; a Venire was to the Sheriff of Cambridge from S. next adjoyning to D. in the said [...]sle of Ely; who found for the Plaintiff, and he had Judgment to re­cover the Annuity, and the Arerages, and the Robe, and that the grant did binde the Successor.

Luken and Eves Case. 211. In Replevin, The Defendant avowed for that A. was seised of the Mannor of D. in Fee, and had a Leet within the Mannor to be holden in the Feast of &c. and let the Mannor to the Defendant for years; And that the Defendant held the Court Leet such a Feast; and that the Plaintiff was an Inhabitant within the Leet at the time, and being Summoned to appear at the said Leet, did not appear, which being presented by the Homage, he was Amerced 5 s. which was afferred, and for the Amercement the Defendant did destrain: The Defendent pleaded that he was not a Resient within the Leet at the time which was found against him; wherefore the Defendant was adjudged to have a Return of the Cat­tel and his damages.

Stephens and Clarks Case. 212. Quare Imp. King Henry 8 seised of the Mannor of D. and the Advouson Appendent, presented I. S. the Mannor with the [Page 38] Advouson by Discent came to the Queen, who granted it to the Lord Stafford and his Wife and the Heirs of the body of the Lord; the Lord Stafford dyed; His Wife and eldest Son granted the Mannor and Advouson to I. D. and his Wife for their lives: The Incumbent dyed, who during the Avoydance, granted the Advouson to the Plaintiff. It was Resolved, That the grant of the next A­voidance to the Plaintiff during the Avoidance, was void in Law.

Playn and Crouches Case. 213. A Villein was Regardant to a Mannor, the Lord of the Mannor had not seisin of the Villein, nor any of his Ancestors from 1. H. 7. to this time; but they had seisin of the Mannor to which the Villein was Regardant, and if seisin of the Mannor was seisin of the Villein, was the Question; The Issue in an Assise being upon the seisin, Quære; It was not Resolved, It was Conceived that in favore Libertatis, the Lord could not now seise the Villein. No Judgment was in the Case.

214. If the Husband be seised of Land in the Right of his Wife, the Husband makes a gift in Tail of it rendering Rent, and after­ward the Husband and Wife grant the Reversion by Fine: It was holden it should bar the Wife of the whole: but if they had granted the Rent only, then the Wife after the death of the Husband might enter into the Land.

215. A man Leaseth a Mannor for years, rendring Rent with a Reentry; a stranger recovers in Debt against the Lessor, and hath Elegit upon the Judgment. Resolved he shall have the moyety of the Reversion, and the moyety of the Rent in Execution; and the Condition is suspended for the whole vide before.

216. Tenant in Tail makes a Lease for 21 years, and afterwards makes a Feoffment in Fee, with a Letter of Attorney to make Live­ry, who enters and ousts the Lessee and make Livery: Adjudged, It was a discontinuance; And it was said, That it was adjudged in the Earl of Warwicks Case. A man made a Lease for life, and after­wards made a Feoffment in Fee, and a Letter of Attorney to make Liver, who ousted the Lessee and made Livery. That it was a good Feoffment, and if the Lessee for life reentred, the Reversion re­mainder in the Feoffee.

217. A maid Servant conspires with her Lover to rob her Mi­strisse, the Man comes in the night, the Maid hides him; and after the Man kills the Mistresse: Adjudged Murder in the Man, and Pet­ty Treason in the Maid Servant.

Symonds Case. 218 A. 24. H. 8. Covenants with I. S. that all persons who were Feoffees of Certain of his Land should be seised thereof to the use of the said A. for life, and after his decease to the use of W. his Son, and M. S. and the Heirs of their bodies begotten, and for want of such Issue the remainder to the Right Heir of A. and after he makes a Feoffment to those uses, W. and M. S. intermary, A. dyeth. Af­ter 27. H. 8. the Husband aliens the whole and dyeth; his Wife en­ters into the whole; Adjudged her entry into the whole was not Lawfull; but only for a moyety, and it was agreed that several moye­ties may be of an Estate tail, aswell as of a Fee simple between Hus­band and Wife.

219. A man made a Feoffment to the use of a Woman for [...]fe, who was a Feme sole at the time, the remainder to the right Heirs of their two bodies, the remainder to his right Heirs in Fee; after they intermarried, and the Husband having Tenants at Will of the Lands, Devised that the Wife should have the Reversion in Fee, so as she pay his debts and Legacies and performe his Will, and by his Will deviseth his Tenant should have the Tenements for life and dy­eth, the Wife takes another Husband, who ousts the Tenants at Will: It was Resolved, the same was no forfeitute of her remainder. But if the Will had been upon condition that his last Will should be performed, It had been otherwise.

220. A man made a Lease for 30. years. The Lessor Covenanted to Repair the House. The Lesse granted parcel of the Term for 10: years: It was holden, that his Grantee should not have an Action of Covenant by the Statute of 32. H. 8. of Conditions, for he is not Tenant to the first Lessor; But if the Lessor ganteth his Reversion for years, his Grantee shall have Covenant or benefit of the Condition with which the Lessee is charged, for he is an Assignee within the Statute, because the Lessee holdeth of him.

221. If the Ancestor of the Husband Covenant to stand seised of Certain Lands, to the use of the Husband and Wife in Considera­tion of Marriage, and also for a Certain Sum of Mony, If the Wife alien that Land after the death of the Husband: It was said, that the Heir of the Husband might enter by the Statute of 11. H. 7. for the Consideration of Marriage shall be preferred before the Considerati­on of Mony, and then it shall be said the gift of the Ancestors of the Husband, and within the Statute, as it was said it was adjudged in Villiers Case.

The Lord Treasurer and Bartons Case. 222. A man made a Lease for 100 years: The Lessee made a Lease for 20. years rendering Rent with clause of Reentry; the first [Page 40] Lessor granted the Reversion in Fee, attonement was had, the grantee purchased the Reversion of the Term: It was holden and adjudged, that he should not have the Rent not the reentry, for that the Rent which was incident to the Reversion, was extinct by the purchase of the Reversion in Fee.

223. A man was Tenant by the Curtesie of a Mannor, a Copy­hold came to his hands by forfeiture; Afterwards he was bound in a Statute, and afterwards demised the Copyhold Land again: It was holden this Copyhold should be lyable to the Statute, because it was once annexed to the Freehold of the Lord, and bound in his hands.

Pasch. 12. Eliz.

224. If the Lord grant to his Copyholder the Trees growing upon the Land and which afterwards shall grow, and that it shall be Lawfull for the Tenant to cut and carry them away: It was holden to be No forfeiture of his Copyhold, because he hath dis­pensed with the forfeiture by his grant, but he cannot cut the Trees which shall after grow, for as to them the grant is void.

Brabrokes Case. 225. I. D. 19. H. 8. gave the Mannor of N. to I. S. and A. and the Heirs of the body of the said I. S. on the body of A. remainder to a stranger in Tail, the remainder in Fee. I. S. Mari­ed A. and after 26. H. 8. he suffered a Common Recovery with single voucher to the use of him and his Heirs, the Statute of 27. H. 8. was made, and after he in the remainder in Tail was attainted of Treason, and 28. H. 8. It was Enacted in Parlia­ment, that all his Lands and hereditaments which he had or ought to have, should be forfeited, the Recovery was without any Original: Afterwards I. S. gave the Mannor to I. D. and his Heirs, who made a Joynture thereof to M. his Wife for life, after the death of I. D. M. took to Husband the Plaintiff, against whom Intrusion was brought; It was adjudged against the Plaintiff for one moyety.

Hil. 14. Eliz.

226. The Earl of Oxon. Tenant for life of certain Mannors made a Copy in reversion to I. S. for life and dyed, the Copyholder in possession dyed. The Heir of the Earl demised the same by Copy to I. S. It was the opinion of all the Justices, that the Copy in Re­version was not good: But it was agreed, If it come in possession during the Tenant for life, then it is good.

227. Two Acres discend to two Coparceners, one of them before Partition grants a Rent Charge out of one of the Acres, and upon Partition, the Acre charged is allotted to the other Sister. It was adjudged, she should hold it discharged of the Rent.

Pledall and Pledalls Case. 228. It was Adjudged in this Case, That the Jurours are not to to take Notice of matters of Estoppel which are given in Evidence between the parties, upon pain of Attaint, for they are strangers to the Conclusions of the parties.

Evans Case. 229. A man had issue two Sons, and devised Lands to his young­est Son in Tail and dyed, the eldest having Issue a Son; the young­er Son aliened the Land in Fee with Warranty, and went beyond Sea, and there dyed without Issue, the Son of the eldest being within age; It was the opinion of the Justices, the same was a Collateral Warranty, and without asserts, was a bar to the Issue of the eldest Son notwithstanding his Nonage.

Muttons Case. 330. A man seised of Land, levyed a Fine to the use of himself and such Woman as he should after Marry, and after their decease to the use of I. his daughter and the Heirs of her body, afterwards he Married A. and dyed, who entred; It was the opinion of the Justi­ces, to A. for her life.

Appowel and Monnoux Case. 231. A. seised of the Mannors and Rectories of B. G. and D. let the same (except the scite of the Mannor of B.) to I. S. for 25. years: Reserving for the Mannor of B. 76 l. for the Mannor and Reversion of B. 30 l. for the Rectory of B. 14 l. and for the Recto­ry of D. and the Lands to it belonging [...]3 l. payable yearly at [...]. Feasts in the Church of F. not parcel of the Premisses upon Con­dition if the said Rents or any of them were behind for the space of 7. Weeks, it should be Lawfull for him his Heirs and Assignes [Page 42] to Reenter on all the premises; and afterwards he bargained and sold the Scite of the Mannor of B. and the Reversion of all the Mannors and Rectories to I. D. and his Heirs; who enfeoffed certain per­sons, and granted the Reversion of all the Mannors and Rectory, to have and hold the Scite of the Mannor of B. and the Reversion of the Rectory of D. to the use of himself and Eliz his Wife for their lives and the life of the Survivour of them, the remainder to W. his Son and his Heirs for ever: And to have the Reversion of all the other Man­nors and the Rectories of B. and C. to the use of himself for life, the Remainder to the said W. his Son and his Heirs: I. S. the Lessee at­torned, I. D. dyed Eliz. his Wife held the Scite of B. and the Re­version of the Rectory of D. by Survivour; W. seised of all the Man­nors and Rectories as aforesaid, granted the Reversion of a Messuage parcell of the Mannor of B. to W. D. and his Heirs, to which grant I S. attorned, and afterwards by Bargain and sale enrolled; granted the Reversion of all the said Mannors and Rectories to H. I. and K. and their Heirs, half a years Rent reserved for the Mannor of B. was behind, for which the grantees destrained by their Bayliffs: In this Case, it was Resolved. 1. That this demise and Lease was joynt and entire, and so was the Condition of it, notwithstanding the several Reservations of the Rents. 2. That the grantee of par­cell of the Reversion, could not take advantage of the Condition, but that the Condition as to the grantee was determined. 3. That the bargainee was a sufficient Assigne within the Statute to take ad­vantage of the Condition, by the Statute of 27. H. 8. of uses, which gives Cestuy que use the possession, and the Estate of the Feof­fees, and all the advantages which the Feoffes might have; and they agreed the Condition to be determined upon this difference, viz. When it is entire one cannot divide it by his own act, but by act of Law in may be divided and apportioned, and so it was in this Case.

Hunks and Alboroughs Case. 232. A man made his Will and gave divers Legacies, and in the end of it, he gave all the rest of his goods to his Wife, who he made his Executor to pay his debts; she took Husband, who made the Defendant his Executor and dyed: against whom, the Wife Executrix brought Detinue of the goods of her first Husband, and adjuged maintainable; because she took the goods not as Lega­tee but as Executrix.

Harwell and Lucas Case. 233. A. seised the Mannor of K. leased 6. acres, parcel of it to I. S. for 21. years without any Remainder, and after lets the 6. Acres to I. D. for 26. years, to begin after the expiration of the first Lease, [Page 43] rendring rent; and afterwards made a Feoffment of the Mannor, and all his Lands to the use of the Feoffees & their Heirs upon Condition, if they did not pay 10000 l. within 15. dayes, then it should be to the use of himself and his wife, the Reversion to their second Son in tayle with divers Rema [...]nders over; the Remainder to his right Heirs; Livery was made of the Land in possession, and not in the 6. Acres, the Money was not paid; afterwards the first Lessee for years attorn­ed, the Husband and wife dyed, the first Lease ended, the second Lessee dyed; his Wife married the Defendant. The Son of A. distreyned for the Rent. It was adjudged in this Case, That although the reversion of the 6. Acres did not passe by the Livery without at­tornment, yet the attornment of the first Lessee was sufficient, and although the use to the Feoffees and their Heirs was determined before the attornment, yet the attornment was good to passe the Reversion to the last contingent use, and so the Title of the Sonne of A. to the Rent was good.

Cranmers Case. 234. King Henry 8. made a Lease of Land for 21. years, the Reversion came to E. 6. who Anno primo of his reign granted the same to Cranmer Bishop of Canterbury; He 6 E 6. granted the Re­version to D. and C. to the use of the Bishop for life; the Remainder for 20. years to the use of the Executors of the Bishop, the Remain­der in tayle to the Grantor, the Remainder to his right Heirs; The Bishop in time of Queen Mary was attainted of Treason, and all his Lands and Chattels given to the Queen by Act of Parliament. The Queen was possessed of the Term for 20. years and granted the same to I. S. It was adjudged, That the term for years in remainder was never in the Bishop to forfeit; but it was only an authority to nominate Executors in whom the Term should vest by purchase; and because by reason of his Attainder he could not make Executors, the Term for 20. years did never rise, and so the Grant of it by the Queen Mary to I. S. not good. See Dyer 310. contr.

Plastow and Batch [...]llors Case. 235. A [...]man brought a Formedon in Discender, and pending it he brought a Writ of Estrepment, which he delivered to the Defendant, who notwithstanding the Writ afterwards committed Waste. It was adjudged, the Plaintiff should recover his Dammages and Costs.

Manwoods Case. 236. Wast was brought and assigned in digging of Clay, and selling of it, and in plowing of Meadow, and cutting down of 100. Oaks. The Defendant pleaded Not Guilty as to all, but cutting down of 6. Oaks which grew in a Hedge row, which he said were Pollards not [Page 44] sufficient for building; upon which it was demarred and adjudged for the Plaintiff.

Calthrops Case. 237. Ejectione formæ. The Case was, A. seised in Fee, 26 H. 8. in consideration of Marriage between E. his Brother, and F. the Daughter of W. and 200 l. of Money paid by W. covenanted to exe­cute an Estate of the Mannor of N. to the uses following, viz. of Lands of the value of 20 l. to the use of the said E. and F. for their lives, and after carnal Copulation to the use of the Issues of their Bodyes, with remainder over to E. and the Heirs of his Bodye, the remainder to the right Heirs of A. and of the residue to the use of A. for life, the remainder to E. F. for their lives, and after carnal Copulation, the remainder as before, and afterwards he executed the estate by Fine and Recovery to the said uses. The Marriage did not take effect, but E. by another Wife had Issue 3. Daughters: A. took a Wife, and had Issue by her, and dyed, E. and F. dyed, C. conveyed the Mannor to D. upon whom the eldest Daughter of E. entred, and made a Lease of her part. In this case, It was resolved, 1. That the use for the life of E. and F. did well rise, although the marriage took no effect, the use being declared upon an Estate executed, which needs not any consideration: but otherwise if it had been upon a Covenant to stand se [...]sed upon consideration of Mar­riage and Money; for there without Marriage no use would rise, although the Money was paid. 2ly. That the Election should go to him who was to take the use. 3ly. That the limitation was not void for the incertainty. 4ly. That in this Case, although the Cestuy que use did not make the Election during his life, yet he in the Remainder might after his death. 5ly. The Court doubted whe­ther the Remainder did take effect, because the Marriage did not take effect; and they conceived it was not the intent of the Parties, that should be advanced with so much Land, if the Marriage did not take effect. The matter was afterwards ended by Arbitra­ment.

Lane and Coopers Case. 238. The Case was, The Mannor of H. to make a Joynture was conveyed by a Deed in Latine, to himself and his VVife for the Term of their lives, the Reversion Seniori puero de corpore ipsi­us W. H. & Hæred. de corpore suo legitimo procreato; the Remainder to the general tayl to the Husband, the Remainder to I. S. in fee thereof: Afterwards by an Indenture between him and I. S. in English, he covenanted that he and his wife should levy a Fine to B. and C. to the use of himself and his wife for their lives, the Remainder to the use of the eldest Child of the said W. H. and the Heirs of the body [Page 45] of such eldest Child, the Remainder over; A Fine was levyed ac­cordingly, and after his wife died without issue, and W. H. marri­ed another woman, and by her had issue a Daughter his eldest Childe, and a Sonne his younger: It was a Question which of them should have the Remainder. It was the opinion of the Justi­ces, That the Daughter should have the Remainder, and not the Sonne, for that was the intent of the Ancestour as they conceived, though puero in Latine is intendable rather to an Issue Male than Female, and yet they said: That many Authors have taken the word indifferently to extend to both Sexes.

Mich. 17, & 18 Eliz.

Andrews Case. 239. Q. Imp. The Case was, A Tenant in Tayle, the Remain­der to the Lord Mountjoy in fee of a Mannor with an Advowson ap­pendant, bargained and sold the same by Indenture, not enrolled to I. S. and his Heirs, rendring 42 l. rent, with Clause of Distress and Nomine pene, and covenanted for further assurance to levy a Fine to the Bargainee. Proviso, that the Bargainee grant the next Avoy­dance to A. for life, and if it happen not void, then one life to his Executors. A, and I. S. afterwards levyed a Fine, with the ren­der of a Rent of 42 l. to A. in tayle, the remainder to I. S. in fee, B. in his life did not grant the Advowson to A. and dyed; the Church became void; A. entred for the Condition broken. It was in this Case resolved, 1. That the Proviso made a Condition. 2ly. That the Fine levyed had not extinguished the Condition. 3ly. That no time being limited for the regrant, the Bargainee was bound to regrant it without request at his peril during the life of the Bargainor, if he were requested, in the life of the Bargainor; and because the Bargainor dyed, the Condition was broken.

Fox and Colliers Case. 240. Ejectione firme; the Case was, E. G. Bishop of York, 6. Nov. 18. had made a Lease from the date of the Indenture of Lands for 21. years to the Plaintiff; which Lease was confirmed by the Dean and Chapter, at which time there was unexpired 4. years of an an­tient Lease made for 40. years: Afterwards E. G. was remo­ved to Canterbury, and S. elected Bishop of York: the 4. years expired, the Plaintiff entred. The Defendant upon a Lease made to him by S. after the 4. years ended put him out. It was resolved by all the Justices and Barons in the Exchequer Chamber, That [Page 46] the Lease made to the Plaintiff was good; yet they agreed, it should be void if it was not for the Confirmation. 2ly. They held, that the Lease now in Question being to commence presently in E­stoppel, but not in Interest was not void by the Statute of 1 Eliz. neither within the letter nor the intent of the Statute; not within the letter, because it is not prejudicial to the Successor; and the Sta­tute is satisfied in the intent, it not being a Lease longer than 21. years, and having the Confirmation of the Dean and Chap­ter it is now good, although it was not good by the Statute of 32 H. 8.

Knowles and Lines Case. 241. Ejectione firme. The Case was, Sir Francis Englesfield was seised in the right of K his wife of the Mannor of S. whereof a Messu­age and Lands in question were Copyhold demiseable for 3. lives. 1 Eliz. Sir Francis Englefield went beyond Sea with license for 3. years; after his Licence expired the Queen sent a Privy Seal to him, commanding him upon his Allegiance to return; he spretis Mandatis of the Queen, continued there, and adhered to the Queens Enemies: This being retorned, a Commission issued to seize his Lands: upon which the said Mannor of S. was seized. The Queen at the Suit of K. his Wife for her Releif, granted the Mannor to St. John and Fetiplace the Friends of K. for her Releife, quamdiu in manibus nostris fore contigerit; who entred, and were there­of possessed accordingly; and then the Statute of 13, & 14 Eliz. of Fugitives was made. After which the Defendant procured a War­rant from the Lord Treasurer to C. and F. joynt Stewards for the Queen, to hold Court within all the Lands of Sir Francis Englefield, and to grant Copyes according to the Custom of the Mannor. C. alone executed the Grant, and granted the Messuage and Lands to the Defendant's being Copyhold. In the Case was two points: 1. If the Statute of 13, & 14 Eliz. of Fugitives had taken away the Estate of St. John Fetiplace, and reduced the Mannor again to the Queen. 2ly. If the Court holden by C. only being a joynt Grant of Stewardship was good. Resolved, 1. That the Statute of 13, & 14 Eliz. of Fugitives was made in affirmance of the Com­mon law, and did not give the Queen any new thing, but added only some Circumstances to it; and therefore the Grant made to St. John and Fetiplace stood good, so as the Queen could not oust the Patentees; and so by consequence the Grant of the Copyhold to Lines the Defendant was not good. 2ly. They held, that the Court holden by C. only was good; For it was said a Disseasor, &c. might hold Courts; and make admittance, and take surrenders and the like, because he is but an Instrument of Conveyance; but he could not grant Copyhold estates.

[Page 47] 242. Note by the Justices, If a man be to make sufficient proof, it may be made by Witnesses produced, as by Jury.

243. A man seised of Lands parcell Copyhold, and of Lands at the Comon Law, and by Licence of the Lord makes a Lease of them for 21. years, Provided if the Lessor, or his Wife, or his Heirs, or Assignes, or any of them give warning to the Lessee, that the Husband, or Wife, or their Heirs will dwell there, that then the Lessee should avoid, Except that the Lessor or his Heirs, shall pay to the Lessee then 20 l. The Lessor and his Wife dyes, and the Reversion of one part discendeth to the eldest Son, and the Reversion of the other to the youngest, and the youngest purchaseth the Reversion of the eldest, and then the youngest gives warning to the Lessee; It was the opinion of the Justices, that the warning given by him was good, and that the Law which hath severed the Reversion, hath severed also the Condition, although at the begining they were entire, and so for one part as Heir, and for the other part as Assignee, he shall take advantage of the Cndition.

244. A man makes a Lease of Land and of an House for years, reserving one Rent for all, and afterwards the Lessor grants the Reversion of all the Lands, saving the Reversion of the House to himself. Resolved, that by agreement betwixt the Lessor and grantee in the Reversion in pays, the Rent may be apportioned, if it be according to the quantity and quality of the Land which they have, otherwise not.

245. Tenant in Tail disseiseth the Discontinuee, and Levyeth a Fine, and the proclamation passes, but the Discontinuee during the proclamation makes claime, and after the Tenant in Tail dyes, and the Discontinuee enters; It was the opinion of the Justices, that the Issue in Tail was barred by the Fine, and in this Case it was said, That if the Lord entreth upon his Tenant, and en­feoffs a stranger, and the Tenant Reenters, he avoids the Dis­seisin and estate, but the seignoury is not revived but ex­tinct.

Pasch. 20. Eliz.

Jackson and Darceys Case. 246. Tenant in Tail the Remainder to the King levyeth a Fine with Proclamation. It was holden it shall binde the Issue notwith­standing the saving in the Statute of 32. H. 8. for that here is not any Reversion in the King, but a Remainder, of which the Sta­tute [Page 46] [...] [Page 47] [...] [Page 48] speaks nothing: but yet this Fine doth not devest the Remain­der out of the K [...]ng, but the Conusee shall have a Fee determinable upon the Tail.

247. The Master takes an Obligation of his Apprentice, that he shall not use his Trade within 4. years in the Town of N. where his Master dwells, and he is an Apprentice; It was holden the Obli­gation was not, good not should binde the Apprentice.

248. A man hath a Warren which extends into 3. Townes, and by deed makes a Lease of it for years, Rendering rent, and after grants the Reversion in one of the Townes to another, and the Les­see Attornes; It was the opinion of the Justices, That the grantee should have no part of the Rent, nor the Granter, because no Co­venant can be apportioned.

Duland and Cleypooles Case. 248. Information upon the Statute of 5. Eliz. of Tillage, That the Defendant had Converted 300. Acres of arable Lands to Pa­stures: and that the Conversion hath continued from 15. Eliz. to 20. Eliz. The Defendant as to the Conversion pleaded Not guilty; and as to the Continuance, the general pardon of 23. Eliz. upon which it was demurred: It was argued, that the Condition did not extend to the Continuance of the said conversion; It was said, That if A be seised of arable Lands and converts the same to pasture, and so converted Leaseth it to B. who continues it in pasture as he found it, he shall be charged by the Statute; And Note the words of the Statute are Conversion permitted, and Conversion continued is Conversion permitted, and the Statute doth not punish only the Conversion but the continuance of it. One the other side It was said, That the Conversion and the continuance thereof, are 2. several things by it self, and so the Conversion being only excepted, the Continuare thereof is within the Pardon. Quære; the, Case was adjorned.

Term. Pasc. 24. Eliz.

Leeke and Grevells Case. 249. Information upon the Statute of 5. Eliz. for converting and using of 2000. Acres of arable into pasture: The Defendant said and justified as to 800. Acres. That the Queen by Deed un­der her Great Seal, Licensed him to enclose the Mannor of Weston and Welford in the County of Gloucester, and to make a Park, so as it was not within any Forrest, and to Convert and use the Land in­closed [Page 49] of tillage into pasture pro sustentatione ferarum, Damarum & averiorum suorum, by which he enclosed them, and converted the Til­lage into pasture for the Sustentation of his beasts; Upon which it was demurred; It was argued, that the License was not good, be­cause the Statute of 5. Eliz. was to continue, but till the beginning of the next Session of Parliament, at which time the Statute ended, and was not revived till Anno 13. Eliz. so as in Anno 9. when the License was, there was not any Statute to prohibit the Conver­sion of tillage into Pasture; and therefore the License in 9. Eliz. could not dispense with the Statute of 13. Eliz. and the Statute of 13 Eliz. did not make such reviver of the Statute of 5. Eliz. as made mean Acts good by any Relation; Quære; the Case was not adjudged but adjorned.

Dolman and the Bishop of Salisburies Case. 250. Quare Imp. brought, the Defendent pleaded the Statute of 21. H. 8. Cap. 13. of Pluralities, that the last Incumbent had a Benifice with Cure of the value of 8 l. and took another Benefice and was Inducted 1 Eliz. upon which the Queen did present the Defendant by Lapse; The Plaintiff shewed the Proviso in the Statute of 25. H. 8. that Chaplains qualified might purchase Dispensations and take 2. Benefices and that 1 Eliz. before the Parliament he purchased a Dis­pensation from the Pope, and after he took the second benefice and dy­ed; The question was, whether the Pope before the Statute of 25 H. 8. might grant dispensations; It was Resolved he could not, for that the Kings of England had been Soveraigns within their Realms of the Spi­ritualties; and the Justices held that the dispensation in question was made 1 Eliz and so out of the Statute of 25 H. 8. and that this dispen­sation to retain a second benefice was against the Statute of 21 H. 8.

Lacyes Case. 251. In a scire facias upon a Recognizance for not appearing be­fore the Justices of Assise at York, the Defendant pleaded that after the Recognizance taken, a Commission issued to the Admi­ral and others to hear and determine Treasons, Felonies, &c. done within the Jurisdiction of the Admiralty; and that the Com­missioners sent to Arrest him before the day of his Appearance, be­cause he had mortally wounded a Man upon Scarborow sands, if within the flux and reflux of the Sea, of which wound he dyed at Scarborow, and that thereupon he was Arrested and detained in pri­son till after the day of Appearance, and afterwards was Indicted and arraigned of the said Felony before the Commissioners; The Court inclined to be of opinion, that the Arrest was a sufficient ex­cuse of his appearance, because the Recognizance is a duty to the Queen, and the Commission is the Act of the Queen, and all [Page 50] that the Commissioners do is by authority from the Queen, and in her person, and shall be accounted her Act, and then when she her self is a cause that the Defendant could not appear, that she should not have benefit of the Recognizance.

252. The Condition of an Obligation was, That if the Obligor pay at or before the 25th day of March; he tenders the money the 24th day; It was the opinion of Anderson, that if he tender the money the last instant of the 24th day, he saveth his Bond; But the other Justices held the contrary, because the word (before) is not to have any Construction, but the Obligor shall be admitted to pay it before by agreement only of the Obligee. Quære.

253. A man seised of 3. Mannors in Fee of the value of 300 l. Covenanted in Consideration of the Mariage of his daughter, that he would suffer 20 l. yearly to discend, come and remain to his daughter and her Husband, and the Heirs of their bodies; It was the opinion of the Justices, that for want of Certainty, no use is created by the said Covenant and Consideration; but the same amounts to a Covenant and no more, and the words Discend, come and remain, cannot create an Use, but to the Heir apparant only.

254. In Trespas, the Case was; The Custom of a Mannor was Quod quilibet tenens per Copiam poterit dimittere terras suas, for life in Fee, or al [...]ter, and that a Woman Cooperta viro poterit devise her Copyhold Lands to any other, or to her Husband by the assent of the Husband; The Court held that the custome was not unreasona­ble, but because it was poterit devisorre, where it should be usi sunt devisorre, and also because it appeared, that the Plaintiff was Tenant in Common with the Defendant, It was adjudged against the Plaintiff.

255. A seised in Fee of a Messuage and of divers Lands time out of minde occupied with it, let parcel of the Lands to a stranger for years, and afterwards made his Will in this manner, viz. I will and bequeath to my Wife my Messuage with all the Lands thereunto belonging in the occupation of the Lessee, and after the decease of my Wife, I Will that it with all the rest of my Lands shall re­main to my Younger Son; It was the opinion of the Justices, that the Wife should not have the whole, but only that which was Leased before, and therefore that the remainder thereof could not be in the Younger Son, till after the death of the Wife, and that till the death of the Wife, the Eldest Son Heir at Law should enjoy it.

256. A man bound himself in an Obligation, that he and his Wife would levy a Fine upon reasonable request of the Obligee; he [Page 51] made the Request the Wife being very sick so as she could not tra­vail. Resolved, that her sicknesse did save the Obligation from be­ing forfeited.

257. A Copyholder in Fee, by License of the Lord made a Lease for years Rendring Rent, and having Issue a Son, and a Daughter by one Woman, and a Daughter by another, dyed, his Son within age, who before any Rent incurred, or any admittance dyed; Adjudged, The Eldest Daugter should have the Land, and that the discent of the Reversion is possessio fratris quæ facit sororem esse hæredem.

Kenrick and Burges Case. 258. A Lease in Reversion for years was granted to I. S. who dyed Intestate, his Wife assigned it to B. and afterwards took Let­ters of Admin [...]st [...]ation, and made an Assignment of it to the Plain­tiff. Resolved, that the last Assignee should have it.

Trinit. 25. Eliz. in Exchequer.

The Queen, Her Almoner and Coxeheads Case. 259. The Case was, I. S. Anno 9. of the Queen took the Office of Bayliff of the Hundred of A. and 11. Eliz. became indebted to the Queen by Obligation and 13. Elz. he being seised of Land, Covenanted with C. in Consideration of Mariage with his daughter, to stand seised to the use of himself for life, and after to the use of C. and the Daughter in Tail; and afterwards he took the Office of Woodwardship of the Mannor of S. and became indebted for that also, and then granted a Rent Cha [...]ge for years out of the Land, and then C. and I. S. joyned in a Fine to the use of the said I. S. for life, the remainder to C. and afterwards I. S. having purchased the Rent and poss [...]ss [...]d of goods and Chattells, because Felo de so, for which his Lands and goods were seized; It was the opinion of the Justices, the Almonor had no title to his goods because the Patent did not extend to the goods of a Felo de se, against the Queen for her debt, because it wanted the Words, Licet tanget nos: and that the Lands and goods of the said I. S. were chargeable, as well for the debts which were due by the Obligation, as also upon the accompt as­well before the Conveyance as after, Wherefore C. paid the Queen her debts and had the Lands cleered.

Newtons and Barnardines Case. 260. A. had Issue 3. Sons, F. R. and G. F. dyed his Wife with Child: The Father A. devised in this manner, viz. To the Child [Page 52] my Son F. his Wife now goeth with, 28 l. yearly to be paid to the use of the Child for 20 years. And if my Son R. dyeth before he hath Issue of his body, so as my Lands discend to G. before he come of the age of 21. years, then my Executors shall occupy it till G. be of the age of 21. years; the Father dyeth, R. enters, a Daugh­ter is born, who enters and lets the Land to the Defendant render­ing Rent; It was adjudged, That R. in this Case had an estate Tail, by Implication of the words of the Will, and that the entry of R. was a Lawfull eviction of the Terme, and destroyed the Rent.

H [...]dons Case. 261. It was Resolved by the Justices in this Case; An Abbot made a Lease for 8. years of Lands of the possession of the Abby, a Copyhold estate being in esse at the time, that it was an estate in being as did make the Lease for years void, by the Statute of 31 H. 8. of Monasteries.

The Case of the Skinners of London. 262. In Intrusion, the Case was. A. a Cittizen and Freeman of London seised of divers Messuages and Tenements of the yearly value and profit of 30 l. 6 s. 8 d. by his Will before the Statute of 1 E. 6. devised, the same to the Corporation of Skinners, and that 42 s. 8 d. thereof should be imployed upon an Obit, and 12. Marks yearly thereof upon the Priest, and the Residue to be imploy­ed upon poor men of the Corporation decayed by misfortune, who inhabited the said Messuages and Tenements, and appointed the said poor men to pray for his soul, and further with the profits to repair the Messuages and Tenements, and after the Statute of 1 E. 6. of Chauntries was made; It was the opinion of the Court, 1. That Lay Corporations are Excepted out of the Statute for their Lands, which they have to increase their Treasure, for the good of the Corporation, but not for Lands which they have to imploy to superstitious uses. 2. Resolved, that all the money which was given for the Obit, and the finding of the Priest, was a superstitious use, and given to the King by the Statute, but that which was given for the maintenance of the poor men; and although it was appointed them to pray for his soul which was a precept suteable for that time, and which was given for the Reparations of the Messuages, &c. was not given to the Crown by the said Statute; and Turnors Case was vouched to be adjudged, Where Land was given to the intent, that his Feoffees should keep an Obit with so much of the profits of it as they should think fit in their discretions, that the Land thereby was not given to the Crown, but so much of the yearly Rent as the Feoffees imployed to that purpose, and if they had imployed no­thing that way, then nothing was given to the Crown: In the principal Case, it was adjudged against the Queen and Informer.

Bossevile and the Corporation of Bridgwaters Case. 263. King H. 8. Anno 33. of his Raign made a Lease to the Earl of Bath, of the Rectory of Bridgewater and of the Tythes of 2. Hamlets in W. parcell of the said Rectory, at the Rent of 10l. which lease continued till 2. Eliz. in which year Bossevile purchases from the Queen the Rectory of W. of the value of 10l. yearly, and had general Words of the Tythes within the 2. Hamlets, but the Lease to the Earl of Bath that was then in esse, was not recited; and afterwards 3. Eliz. the Queen granted the Rectory of Bridgwater and the Tythes of the 2. Hamlets and all which was in the Earl of Baths Lease, to the Corporation of Bridgwater: Bossevile by vertue of the Statute of 18. Eliz. of Non Recitals and Misrecitals, which had retrospect to the beginning of the Ra [...]gn of the said Queen, claymed the Tythes within the said 2. Hamlets against the Corporation: After a long Argument upon a Reference out of the Court of Wards to the Chief Justices Wray and Anderson, it was Resolved by them, That the Patent was good without recital to Bossevile against the Queen, by relation of the Statute of 18. Eliz. which makes Patents good from 2. November in the first year of the Queen, and should binde the Queen, her Heirs and Successors; but should not be good against the Corporation of Bridgwater, and therefore the Case in the Court of Wards was decreed against Bossevile.

Diggs Case. 264. An Annuity was granted in fee; at the first day of payment the Annuity was paid to the Grantee, and the Grantee made an Acquit­tance thereof to the Grantor; and in the end of the Acquittance he released to the Grantor all Actions; and after at the next payment the same was behind, and the Grantee brought a VVrit of Annuity: against which the Grantor pleaded the Release in Barre: It was strongly objected, that by the Release the Annuity was determined, being a personal thing, and a thing in Action. But it was resolved by the Court, That for an Annuity before the day of payment an Action did not lye; and that before it was not therefore resolved by the Release of all Actions before the day of payment; and although an Annuity be a Personal thing for which the Grantee hath not any remedy but by way of Action, yet it is not a thing in Action. It was adjudged for the Plaintiff that the Action was well brought, notwithstanding the Release.

Stantons Case. 265. S. at the age of 16. years bound himself an Apprentice in London to I. S. by Indenture, containing the ordinary words of eve­ry Indenture for Apprentices; and afterwards by the command of his Master, who was Baily of an Hospital in London, and with those [Page 54] Moneys and other Moneys of his Masters he went away, and had not discharged his Master against the Hospital; for which he brought Covenant upon the Indenture. The Defendant pleaded that he was within age in Barre of the Action; and also said, that upon this Cu­stome the Defendant was implead [...]e only in London, and not in this Court. The Court seemed to be of opinion, That the Custome was a good Custome; and the Defendant was lyable to the Action within the Custom, and that he was impleadable within any place of England as well as in London, and therefore that the Action was well brought.

266. A Custome in London was set forth to be, That if many are bounden in an Obligation as Sureties, that if the Principal fail of payment, so as that it one of the Sureties be sued upon the Obliga­tion, that he might have a VVrit De Contributione facienda against the Sureties; and said that such VVrit was brought in London, which was removed in C. B. It was remanded into London, be­cause the Common Pleas could not doe right upon the Cu­stome.

Shelleyes Case. 267. Upon a Special Verdict in Ejectione firme; the Case was, Ed. Shelley and Joan his VVife, Tenants in special Tayle, the Re­mainder in fee to Ed. had Issue then Hen, and Richard; Joan dyed, Hen. dyed in the life of Ed. having Issue Mary. It was found that Ed. by Indenture 1, & 2 Phil. & Mar. covenanted with I. S. and others to suffer a common Recovery to the use of himself for life, and after to I. B. for 24. years, and after the years expired to the use of the Heirs Males of the Body of the said Ed. and the Heirs Males of the Body of such Heirs Males, and for want of such Issue, to the use of the Heirs Males of the Body of John Shelly of M. &c. and 9. Oct. the first day of the Term Ed. dyed between the hours of 5. and 6. in the morning, and afterwards the same day the Recovery pas­sed, and that by a VVarrant of Attorney made in the life of Ed. Execution was the 19. day of October by Habere facias seisinam, and it was found that 5. December following the wife of Hen. Shelly was delivered of Hen. the now Defendant: The Land was also found to be in Lease for years at the time of the Recovery, and that Ri­chard Shelley the younger Son of Edward entred and made the Lease to the Plaintiff. In this Case there were these points: 1. If the Recovery suffered by Ed. the day he dyed, was good. 2ly. If be­ing suffered by him Tenant in tayle, it might be executed after his decease upon the Issue. 3ly. If any use did rise upon the Recovery before Execution. 4ly. If Richard the youngest Son before the birth of Hen. the Infant took the Land by purchase, or by Discent: This [Page 55] Case was many times argued at the Barre, and afterwards for Diffi­culty was by the Command of the Queen adjourned into the Exche­quer Chamber, where it was argued by all the Judges of England; and at last it was resolved against the Plaintiff; and the reasons of their Judgements were these: 1. Because they all agreed that Ri­chard Shelley was in by Discent, and not by Purchase after the death of Ed. and before the birth of Hen. the Defendant▪ 2ly. That the Recovery was good, although that Ed. dyed the same day before the sitting of the Court, 3ly. That Execution might be sued against the Issue in tayle, but that no Seisin was in the Recoverors nor any use raysed till Execution sued.

268. A Lease for years was made upon Condition to re-enter for not payment of the Rent: A man of ill fame out-lawed in 40. A­ction, at the last instant of the day demanded the rent; The Lessee asked him what authority he had to receive it; he said he was senr thither by the Lessor, but did not shew any warrant from him, or that he was his Servant. This was the opinion of the Justices, that if any one would swear that was true against the Party who de­manded the Rent, that the Lessor should not enter; which being immediately sworn, and the Records of the Outlawries against him produced, the Justices dismissed the Lessee, and that the Lessor should enter upon him.

Broughtons Case. 269. Broughton a Justice of the Peace brought an Action upon the Case against the Bishop of Coventry and Lichfield, because he wrote a Letter to the Earl of Leycester one of the Privy Council; wherein he wrote, That the Plaintiff was a Vermin in the Common wealth, a false and cor [...]upt man, an Hypocrite in the Church of God, a Dis­sembler; He hath used many corrupt practises to work his VVill, He procured my Register to be indicted of Extortion; He willingly and wilfully hath boulstred out one Greenwood a Convict man of many offen­ces, and knowing him to be an Evil man, maintaineth him against me, without Law, Conscience or Honesty. Upon Not Guilty, it was found for the Plaintiff and 300 l. Dammages. It was objected, the Action did not lye, not being an overt Act, but words written in a Letter. Resolved the Act on did well lye being writ to a Stranger; but otherwise if it had been written to the Party himself; and it was also resolved, That although but some of the words will bear A­ction, yet the Dammages are well assessed, because they are put in to increase the Dammages. In this Case it was said, if a slanderous Bill be exhibited in the Star Chamber against one, the Action doth not lye, because it is a Court of Justice, and hath Jurisdiction to redress things; but to exhibite a slanderous Bill into a Court [Page 56] waich hath not power to redress, the thing is scandalous and an Acti­on will lye for it.

Griffith and Clarks Case. 170. A Writ of Disceit by the Lord of the Mannnor upon a Fine levyed of the Land within antient Demeasne: The Defendants pleaded that the Lord of the Mannor in the time of E. 2. did release to one who was Tenant of the same Land, de omnibus servitiis & consue­tudinibus, salvis servitiis infrascriptis, viz. pro una virgat terræ 2 s. rent suit of Court and Releife. It was resolved, The Custome of the Antient Demesne was extinct by the Release; but the Rent Releife and suit of Court, remained as parcel of the Seignory by the saving.

Ivors Keales Case. 271. A. seised of Lands in Fee, borrowed 20 l. of B. and they are agreed to assure Lands for it. They went to the Land, and A. there said to B. I am endebted to you 20 l. If I do not pay you at Micha­elmas, then I bargain and sell this Land to you; and if I do pay you, I am to have my Land again; B. continued upon the Land a little space; the Monyes was not paid at Michaelmas. Adjudged the Land passed, to B. upon a Condition subsequent for payment of the Mony by B.

Mildmay and Standiskes Case. 272. Action upon the Case for Slandering his Title; In which the Defendant justified; the Case was, A. seised of Lands in fee had Issue 3. Daughters, V. G. O. V. dyed without Issue. The Father for love and affection, and the better maintenance of G. and O. covenanted to stand seised to the use of himself for life, the remainder to G. in tale of one Moyety, the remainder to O. of the Moyety in Tail. Provided, it shall be Lawfull for the said A. for the payment of his Debts and Le­gacies, and better preferment of his Servants and other good Conside­rations, to devise the said Lands by his Last VVill, and dispose of the same for lives or years; and afterwards he devised the said Lands to F. and the said O. his wife for 1000. years and dyed; wherefore the Defendant published the said Lands were assured for 1000 years, upon which it was demurred; It was said that the said V. might at any time determine any of the said uses; and induce other Estates at his pleasure, and the payment of his Debts and Legacyes with good con­siderations for the Leases. But it was resolved for the Plaintiff, because the Proviso was against the Law to enduce an Estate to a Stranger by way of Lease upon Covenant of Considerations to raise uses, but such power might be good upon an Estate executed; Or a Proviso good which did extend to determine the Estate, but not to give another Estate to Lessees.

Veere and f [...]ofryes Case. 273. It was Resolved, That if the Metropolitan grant Admini­stration [Page 57] where the Intestate had not bona notabilia indivers diocesses, it is voidable only, but not void. But if a Bishop of a Dio­cesse grants Administration which belongs to the Metropolitan, the same is void.

Russells Case. [...]74. Trover and Conversion of goods by the Executors of R. against Husband and Wife, of the goods of the Testator, which came to the hands of the Wife dum sola fuit. The Defendant pleaded a Release of the Plaintiff after the death of the Testator, and after the Trover and Conversion; The Plaintiff said, he was then within age: It was adjudged, that because there was no Consideration alledged for the Release, it should not binde the Executor, be­cause it should be a Devastavit in him.

Twineos Case. 275. Grandfather and Grandmother, Tenants in special Tail before the Statute of 27 H. 8. the remainder to the right Heirs of the Grandfather; The Father by deed enrolled Fine and Procla­mation conveyed the Lands to the Queen and her Heirs and Suc­cessors, in the life time of the Grandmother. It was Resolved that by the Statute of 32 H. 8. by the Fine and Proclamation, the Issue in Tail was Barred.

V [...]ncent and Lees Case. 276. It was adjudged in this Case, That when a man devised that his Sons in Law, should sell the Reversion of his Lands with­out naming their particular names, and that some of them dyed; That the Survivors could not sell the Land.

Sir Peter Carewes Case. 277. It was Resolved in this Case, That the Lord of a Mannor for life, or a particular Tenant having interest in the Mannor might grant Copies in Reversion, although they were not executed in the life of the grantor.

Moris and Franklyns Case. 278. The Statute of 27 H. 8. which began 4. Feb. Anno 27. H. 8. and ended 14. April. gave Monasteries of Petty value to the King: The Abby of T. being of Petty value viz. 100 Marks per Ann. was mean between the 1. day and the last day Surrendred to the King; It was holden the King should be in by the Statute and not by the Surrender.

Thorrowgood and Tarvors Case. 279. In Trespasse, The Defendent pleaded in bar the Release of the Plaintiff of all his right in the Land; The truth was, the Plaintiff was a man unlearned, and the Release was read unto him only as a Release of the Arrerages of an Annuity; It was the [Page 58] opinion of the Justices, that he might plead Non est factum to it, and it should nor bar him.

Dorrell and Thyns Case. 280. Error was assigned in a Common Recovery, That no War­rant of Attorny was; several Writs issued to Certifie one to the Custos Brevium, the other to the Chief Justices; They both Certified, there was not any Warrant of Attorney. The Plaintiff alledged Diminution, upon a new Writ of Error brought. Resol­ved, That he could not alledge Diminution, not have a new Writ of Error after the two former Certificats, in the first Writ.

Ive and Tracies Case. 281. A man seised of Socage Land, and of Lands holden in Capite, by Act executed in his life, Conveyed the Capite Lands for the Advancement of his Wife, Issues and payment of his debts. Ad­judged, he could not after devise the Socage Land.

Bonncys Case. 282. King E 6. seised of the Mannors of R. and B. in the right of his Dutchy of Lanc. made a Lease thereof to B. for years rendering several Rents, upon Condition that if the Rent be behind 40. dayes after the Rents payable, to reenter; It was found by Office, that the Rent was behinde after the 40. dayes, and by another Of­fice, that the Rent was tendered the Last instant of the 40. dayes, and that the Queens Officers of the Dutchy, accept of the Arrera­ges and of the Rent at other dayes and Feasts, and made accquit­tances thereof to the Lessee, and had accompted for the same in the Dutchy, and after that the Queen to defeat the Lease brought the Intrusion: The poynts of the Case were, 1. If the Queen was bound to demand the Rent. 2. If the Tender was sufficient, and sufficiently found by the Office. 3. If the acceptance of the Rent accrued after the Office, should conclude the Queen of the Condi­tion. The 4. If the Acquittances of the Officers should conclude the Queen. 1. It was Resolved, that the Queen ought to have made a Demand of the Rent before Reentry. 2. That the Tender found shall be intended a tender made upon the Land, which was a suf­ficient destruction of the Reentry. 3. That the acceptance of the Rent, at a new day after the Rent found behinde should conclude the Queen, and that the Act of her Officer should be the Act of the Queen her self, so as she could not enter for the Conditi­on broken; and so it was adjudged against the Queen.

Hunt and Gateleys Case. 283. In a Replevin, the Case was this; Tenant in Tail, the remainder over in Tail, the remainder over in Fee; Tenant in [Page 59] Tail in remainder granted a Rent charge, and afterwards Tenant in Tail in possession suffered a Common-Recovery and dyed without Issue. The Question was, If the Recoverers should hold the Land charged with the Rent. It was Resolved, that the Recoverers, nor any which came in under their estate, should be subject to the charge of him in the Remainder, because the Recoverers are not of an Estate which they gained under the estate of Tenant in Tail in possession, whose estate is not subject to any Charge of him in the Remainder. 2. Resolved, That no Lease, nor Rent, nor estate made by him in the Remainder should charge the possession of the Recoverers.

Brand and Glasses Case. 284. Action upon the Case against an Inkeeper of London, for goods of the Plaintiff stolen out of his Inn: The Defendant plea­ded an agreement betwixt them, that the Inkeeper should not be charged with any goods brought by the guest, but with such only as he should deliver to the Inkeeper himself, or to his Wife, and that the Plaintiff did not deliver the goods stolen neither to him nor his Wife. It was Resolved by the Court, it was a good bar of the Action; and this Case was put and vouched to be adjudged. 7 Eliz. A Clothier came to an Inn with a Wayne of Wool to Lodge, at his entry, the Inkeeper said to him, That if he would, that he should take the Charge of his Wayne, that he should draw the same into an Inner Court, otherwise he would not answer for it; The Clothier did not do it, and the Wool was stolen: The Clothier brought his Action upon the Case against the Inkeeper; and upon shewing the special matter, the Inkeeper was dischar­ged.

185. The Case was Lessee for life Covenanted for himself his Executors and Administrators, to build a new Wall during the Terme, and after he assigned over his estate. It was Resolved, that in this Case upon the Statute of 21. H. 8. that the Grantee of the Reversion, or the Grantor might have an Action of Covenant against the Assignees; for by the acceptance of the possession he had made himself subject to all Covenants concerning the Land, and the building of a Wall was a Covenant inherent to the Land, with which the Assignee should be Charged, though there wanted the word Assignees in the Deed.

Mich. 26. & 27. Eliz.

The Case of Saffron Walden. 286. King Henry 8. seised of the Mannor of Saffron Walden, par­cell of his Dutchy of Lanc. Anno 6. of his Raign, granted to the Guild of Walden, 2. Mills, a Market, and the Clarkship of the Mar­ket in Fee Farme rendering 10l. per Ann. and after 31. of his Raign granted the Mannor, Rent and Fee Farme to the Lord Audley in Fee, 1 E. 6. by the Statute of Chauntries; the Guild was dissol­ved, by which the Mills and Markets came again to the King, with a (alvo of the Rent to the Lord Audley. Afterwards the said King, E. 6. Anno 3. of his Raign, granted the two Mills, Market and Clark­ship of the Market, and also a Fair yearly to be holden there, to the Town of Walden in Fee Farme, reddendo inde annuatim to the King and his Successors, vel tali Capitali Domino vel Dominis feodi il­lius ad q [...]em vel quos de nostro pertinet vel pertinebit, the sum of 10 l. per Ann. upon which Reservation they were charged with 10 l. per Ann. in the Exchequer, and upon a scire facias, they pleaded in discharge of the said Rent, that they had payed 10 l. per Ann. to the Heirs of the Lord Audley. The points debated were two. 1. That when the King had granted the 2. Mills and Market to the Guild reserving Rent, if the said Rent were parcel of the Mannor of Walden, as the Mills were, or was a Rent in grosse; for if it was parcel of the Mannor, then it was parcel of the possessions of the Dutchy; if it was not parcel, then it was a thing given to the King in Capite. 2. If by the Reddend. in the Patent of E. 6. the Town of Walden was charged to pay 10 l. to the Lord Audley, and other 10 l. to the King. This Case is very long and Learnedly argued by Walmesby, for the Town of Walden, and by Popham for the King. And it was Resolved by the Justices, That the Corporation of Walden should pay both the Rents. Vide the Book at Large for the Reasons.

Sir William Herberts Case. 287. Sir Matthew Herbert acknowledged a Recognizance to the King of 3000 l. and afterwards he made several Feoffments and Al­lienations of divers of his Lands, the residue discended to his Heirs: A scire fac. issued against the Heir and Terre Tenants who made de­fault, and Judgment was given against the Heir aswell of his own proper Land, as of those which he had by discent. It was said by Cook, that although the Heir upon default shall be charged above his Assets, but that was where a man bound him and his Heirs in [Page 61] the Recognizance; but here the Heir should not be charged, be­cause the words of the Recognizance are no obligation against the Heir, but only upon the Land; and therefor he prayed contributi­on against the other Feoffes. The Court refused to grant it, and said that one purchasor shall have contribution against another; but the Heir shall not have it, but shall be in the same degree as his Ancestors was.

Bantings Case. 288. In Trespas the Case was, John Banting contracted himself to Agnes A. after Agnes was Maried to F. and Cohabited with him; Banting sued Agnes in the Court of Audience, and proved the Con­tracts, and sentence was there pronounced, that she should Mar­ry the said Banting and Cohabit with him, which she did, and they had Issue Charles Banting, and the Father dyed; It was argued by the Civilians, that the Marriage betwixt Banting and Agnes was void; and that Charles was a Bastard. But it was Resolved by the Justices, that Charles the Issue of Banting was Legitimate and no Bastard.

289. The Case was, Lessee for years assigned the Terme to the Wife of the Lessor and a stranger, and afterward the Lessor bar­gained and sold for Mony by deed Inrolled; the stranger dyed, the the Wife claimed to have the residue of the Terme not expired: Whether by the Bargain and sale, the Terme of the Wife was ex­tinct or not, was the Question; it was said it was not; but Con­trary, if the Husband had made a Feoffment in Fee with Livery; Quære, the Case was not Resolved. Vide Plowdens Commentary. Amy Townsends Case.

Treshams Case. 290. Tenant in Capite, made gift in tail to I. S. upon condi­tion, that if he aliened, that it should be Lawfull for him to enter; I. S. aliened, Tenant in Tale entred for the Condition broken: It was adjudged, That a Fine for the Alienation of the Tenant in Tail was due to the Queen, and that the Queen might charge the Lands in whose hands so ever they came for this Fine; and the duty was not discharged by the entry of the Tenant in Tail, for the Condition broken, but the Tenant of the Land was Charge­able for the same.

291. Debt against an Executor for 100 l. in C. B. Afterwards Debt was brought against the same Executor for 100 l. in B. R. in which he confessed the Action, and pleaded the same to the first Action and that he had fully administred all but the said 100 l. The Court inclined to be of opinion, that the plea was not good, but that the Executor was chargeable to the first Judgment. Quære, because not Resolved.

[Page 62] 292. A. for mony sold to B. all the Butter which should be made of his Cowes in a year, and when he had made Butter, he sold the same to C. C. paid his money and set his mark upon the Barrells, and left them in the Custody of A. and afterwards A. delivered them to B. the first vendee; C. brought a Replevin; and B. claimed the property in the Butter by the first sale. It was said, that the property of it was in C. for the first Contract betwixt A. and B. was but a Covenant and agreement, that A should sell the butter when it should be made, for before that he could not sell it, and before the making of it there was no property in it, and so no contract; and the second alienation, was a change of the property, and so B. hath no remedy for it; but his Action upon the Case against A. Quære, not Resolved.

The Earl of Huntington and Lord Mountjoyes Case. 293. The Lord Mountjoy bargained and sold Lands by deed enrol­led: Proviso, that it is Covenanted, granted and agreed, that it shall be Lawfull for I. S. who was a stranger, to dig in the Lands for Mynes; It was adjudged in this Case, that although the word Pro­viso absolutely taken be a Condition, yet when it is coupled with other Words subsequent, It shall be construed to be a Covenant and not a Condition.

Crocook and Whites Case. 294. Debt upon an Obligation, the condition was: That if the De­fendant Warrant and defend an Oxgange of Land to the Plaintiff against I. S. and all others, that then &c. It was Resolved, the word defend, shall be taken and shall not imply any other sense, but a de­fense against Lawfull Titles, and not against Trespasses, and this Case was put by Anderson Chief Justice. If one Covenants to make a Lease of all his Lands in D. and in D. he hath aswell Copyhold Land as Freehold Land, he is not by the Covenant to make a Lease of the Copyhold Land, for that he cannot Lawfully Lease without License, and the for the Law shall construe the Cove­nant to be of Lands dimiseable, and not of other Lands.

Roberts Case. 295. The Bishop of Batb and Wells granted to King E. 6. by Deed enrolled all his Farmes and Hereditaments of W. in W. in the County of S. Habend. to the King and his Heirs, and in W. the Bi­shop had a Rectory which extended into the County of D. It was holden in this Case, that the word Farme did not include the Re­ctory without a special averment, that the same was in Lease before, but the word Hereditament was sufficient to passe the Rectory.

296. A Statute is Continued during the Will of the King: It was Resolved, that the Demise of the King had determined his Will.

[Page 63] 297. Note, it was Resolved by the Justices, that if Lands are devised to 2. men, and to the Child with which the Wife of the De­visor is ensient; It is a good Devise, and the Child shall take by the Devise; but if he shall be Joynt or Tenant in Common with the other, Quære.

Grises Case. 298. A. gave Lands to his Son and his Wife for life, the re­mainder to the Heirs of A. the Son dyed having Issue within age. A. dyed Living the Wife; It was adjudged, that the Issue of the Son should not be in Ward for the Remainder, notwithstanding the Sta­tute of 32 H. 8.

Wests Case. 299. West went beyond Sea, and wrote a Letter, that his Land should go in such a manner; It was adjudged to be a good Will and Devise.

Cooks Case. 300. It was agreed by the Justices in this Case; that if Lessee for years during his Terme, set up Posts for out-doores, and hangs doores upon them by Engines, that he cannot take them away at the end of the Terme; but otherwise they conceived, if it be of Indoors within the house.

Mollineux Case. 301. A. bound himself in an Obligation upon condition, that if he did pay to the Obligee the sum of 20 l. within 40. dayes after his personal being at Rome, and his Return into England, that the Obligation should be void: In debt brought, the Defendant plea­ded, and tendred Issue that the Obligor never was at Rome; It was said by the Justices, That where the condition, contains matter not triable, the condition is void, but where the matter is parcell tryable, parcel not, that the Condition is good: But in this Case the Justi­ces doubted of it, because 2. things are Coupled by a Conjunction, so as they cannot be severed; otherwise, if they were mentioned in the Disjunctive.

302. A man was Arraigned and Condemned of Felony, and Imprisoned for it in Newgate; and an Execution out of the Exche­quer at the suit of a comon person was delivered to the Sheriff against him, who served it upon him: It was the opinion of all the Ba­rons, that the Sheriffs might choose to serve the Executon or not, be­cause the King had an Interest in the body of the person Impriso­ned; but if they do serve the Execution, notwithstanding the par­don, yet it is good, by which it appeareth, that the Attainder shall not extinct the debts of other Subjects, but that if the At­tainder be purged by a Pardon, the Execution of all other duties [Page 64] are revived, and stand good for the parties.

303. A man made a Feoffment in Fee reserving Rent, Suit of Court and Relief; and by the deed granted, that if the Feoffee his Heirs or assignes should be destrained for other services then are re­served in the deed, that then it should be Lawfull for the Feoffee, his Heirs and Assignes to distrain in his Mannor of D and keep the distresse, till he was satisfied the damage of so much as he had sustained by the distresse: The Feoffee made a Feoffment over; It was Resolved, that in such Case the second Feoffee might Destrain because it was a Covenant which ranne with the Lands.

304. Words, for calling the Plaintiff a Caterpiller, for he liveth by Robbing of his Guests, he being an Inholder; Adjudge the words not Actionable; otherwise if he say, He is a Caterpiller and liveth by Robbing in the High way.

305. Resolved, that an Action upon the Case lyeth, for calling an Attorney a Common Barretor: It was Colborns Case.

306. Note, it was Resolved by the Justices, that for a Common Nusans done in via Regia, as for making a ditch in it, so as he can­not passe the way with his Cart and Carriages; an Action upon the Case will not lye, without shewing some particular injury thereby done to his person; for that he is thereby no more endamaged then the Kings other Subjects: but such Offence is to be presented in the Leet being a Common Neusans; and not punishable by a private Action, but where there is to him a particular dam­age.

307. Debt upon Obligation, the Condition was, if the Obli­gor, his Excecutors or Assignes do pay to the Obligee 10 l. within 3. Moneths next after his Arrival from Rome, the said Obligee pro­ving the same by Testimonial or other Witnesses; that then &c. the Defendant said, that the Plaintiff had not made proof that he was at Rome, the Plaintiff shewed a Testimonial under the seals of se­veral great Persons living at Rome that he was there: It was Re­solved in this Case, that the proof might be by Witnesses or Testi­monial, and it is no Mischief; for if the Testimonial be Counter­feit, he may take Issue upon it, that it is not a true Testimoni­all.

James Case. 308. A man seised of Lands in Fee, took a Lease for years of a stranger by deed Indented of his own Land, the Terme expired, and the stranger entred, and the other brough Trespas. Resolved by all the Justices, that it should be an estoppel against the Lessee, but only during the Terme.

Lins [...]is Case. 309. It was Resolved in this Case: That an Action upon the Case doth not lye for calling the Plaintiff a Common Extortioner, unlesse it be averred that the Plaintiff was an Officer, for that none can be a Common Extortioner, unlesse he be an Offi­cer.

310. An Action was brought for speaking these words, viz. Tho [...] (meaning such an one) art a perjured man and a procurer of perjury, and many the like words tending to that purpose; The Court said, that the Action did not lye for the words, if they were not spoken di­rectly and in the affirmative; and an Action doth not lye for words by circumstance tending to slander.

Manxells Case. 311. A man made a Feoffment in Fee of his Lands, and bound himself in an Obligation, that he and his Son would do all Acts de­vised by the Obligee; The Obligee devised a Deed of Release, the Father delivered it as his deed, but the Son did not deliver it, but because h [...] was unlearned, he required the Obligee to read it unto him, and refused to seal and deliver it, where Debt was brought against the F [...]ther: It was Resolved, that the Son was bound to deliver it at his peril, because the Father had bound himself, that his Son should do it; and that Debt did well lye against the Father, his Son not sealing and delivering the Release.

312. Diverse persons brought one Joynt Quare Impedit, and in the Declaration they varied upon the title. It was adjudged that the Writ should abate, for the Judgment ought to be according to the Writ, unlesse there be Summons and severance; and upon diverse titles a joynt Judgement cannot be given, because there is but one Lawfull title.

313. Note, It was holden by the Justices, That an Attaint did not lye upon a verdict given in a Redi [...]eisin before the Sheriff and Coroners: notwithstanding the Register fol. 20. is, that Attaint doth Lie.

314 The Lord licensed his Copyholder to make a Lease of Copyhold for 21. years to begin at Mich. following, the Copyholder made a Lease accordingly by Indenture; and also before Mich. by deed made another Lease to another for 21. years to begin also at Mich. following: Anderson Chief Justice said the making of the second Lease was a forfeiture.

Hide and Neuports Case. 315. A Copyholder in Fee took a Lease for years of the Mannor. Resolved the Copyhold was extinct for ever, and not only during the Lease.

Allen and Givers Case. vide [...]03. 316. Husband and Wife brought an Action upon the Case against the Defendant and his Wife, because the Defendants Wife said, that the Wife of the Plaintiff had procured one to Murder I. S. It was adjudge [...], that the Action did well lye, and it was said, that where one said to another, that he layed wait in the Highway to Rob him, that the Action did lye for the slander, though nothing suc­ceeded upon it.

317. In false Imprisonment, the Defendant said at the time of the Imprisonment he was Sheriff of the County of W. and Justified by rea­son of a Capias directed to him to arrest the Plaintiff, the Plaintiff said, the Defendant was not Sheriff, but one I. S. It was adjudged against the Plantiff; for the Court said, That all things which he did as Sheriff were Lawfull before he had a discharge of this Office, or perfect notice of a new Sherff.

Johnson and Smiths Case. 318. Action upon the Case for slandring of his Title, and decla­red, That he was seised of Lands by discent from h [...]s Father, and was agreed with I. S. for a sale of the same Lands; and I. S. went to the Defendant being an Attorney and prayed his advice for the ma­king the Assurance, and that the Defendant said to I. S. that he had heard, that the Father of the Plaintiff had granted a Rent Charge out of the Lands in Fee; by reason of which words I. S. re­fused to buy the Lands; and all other persons for fear of the said Incumbrance, to his damage, &c. The Defendant said he was an Attorney at Law, and I. S. came to him for Counsell; in secret he said the words spoken in the Declaration; It was strongly urged, that although he was an Attorney, that would not excuse him; be­cause an Attorney is allowed to give Counsell, and the utterance of the words in private did not excuse, being spoken to the buyer him­self. But it was Resolved the Action did not lye; and adjudged against the Plantiff.

Dawbney and Goores Case. 319. In Disceit, D. G. and G. were Joynt Merchants, they made F. and S. their Factors in Barbary, G. and G. conspired with S. to demand allowance of 1000 l. which was allowed them upon ac­compt, by which D. was damnified, for that the money was not due; and the truth was, S. only made the Account: The poynt was, if one Factor might make an Account for both; and if the two Mer­chants might take an Account for them all three: It was said, that they all ought to joyn in Account, but one solely might Assigne Auditours to take the Account; on the other side, it was said, there was no Joynture in Merchandize, and that one Merchant [Page 67] shall have an Account against his Companion. Quære; the Case was not Resolved.

Hill and Morses Case. 320. It was Resolved in this Case, That a Copyhold without a special Custome could not be entailed.

321. An Enfant acknowledge a Fine before the Cheif Justice, but the Conusee would not have the Fine ingr [...]ssed till his full age; The Enfant came now with the Note of the Conusance and prayed a Wri [...] of Error, and examination of his age, which the Justice a­greed unto, and that an Entry be made thereof, and by that save to him his advantage.

322. A man sold his Land, and Covenanted to save the Vendee harmlesse upon request. It was said if the Land be extended by force of a Statute before the request, the Covenant is not broken, for that now the Covenant is become impossible by the negligence of the Covenantee himself, but if he had made request before the extent, there the Covenant should be broken for default of saving harme­lesse.

Foreman and Bob [...]ams Case. 323. Rep [...]evin. The Defendant avowed for a Rent charge of 3 s. 4 d. [...]iss [...]ing out of the place where &c. which was one parcell of the Mannor of W. of wh [...]ch Mannor I. S. was seised in Fee and 33 H. 6. made a Feoffment of the said Close rendering Rent with di­stresse; and dyed se [...]sed, and it discended to his Son who bargained and sold the Mannor, with all Lands Rents, Reversions, services and herediraments, which are parcell, or had been deemed, reputed or taken as part, parcell, or member of the Mannor; and the Defen­dant as Bayliff of the Heir of the Bargainee made Conusans for the Rent: and whether the Rent did passe as parcell of the Mannor, was the Question by the bargain and sale; It was said, it did n [...]t passe by the word parcell; but it passed by the words reputed parcell, if it were so reputed parcell at the time of the grant; Quære; the Case is not Resolved in this Book; but vide Pasch. 26 Eliz. in B. R. Leon. 1. part 13. there the Judgment was given against the A­vowant.

Justice Windh [...]ms Case. 324. A Lease was made, reciting, that whereas he had made a Lease of one Close to the Lessee for [...]0. years rendring 8 s. Rent, and another Lease of another Close to the same Lessee for 40, years, now he demised to the same Lessee both the said Closes for 40. year, from and after the determination of the several demises; It was a question if the last Lease was good, because there is not any certain time of the begining of it. Resolved the Lease was good, and the [Page 68] Law shall make an Interpretation of the demise reddend [...] singula sin­gulis; how the Terme shall begin. Vide Cook. 5. part, the same Case.

Dolman and Vavasors Case. 325. A. seised in Fee of Lands 15 Eliz. suffered a Common Re­covery to B. which Recovery was executed by Habere facias seisinam. After the Recovery had, it was declared by Indenture between the parties, that the Recovery should be to the use of the said A, for life without impeachment of Waste, the remainder to the first be­gotten Child of his body, and the Heirs male of such first begotten Child, and so to his 9. Issues, and for want of such Issue, to V. the Tenant or Defendant, and the Heirs male of his body; and if these Indentures were sufficient to declare the uses of the Recovery, was the Question; It was Resolved, that these Subsequent Indentures were sufficient to declare the uses of the said Recovery; for so was the Intent of the parties as appeareth by the Indentures; and it was adjudged, that the declaration by the subsequent Indentures should stand good, because there was not any other declaration of any other use.

Scroggs and Lady Greshams Case. 326. Debt upon an Obligation against the Defendant Executrix of Sir Thomas Gresham: The Defendant pleaded, several Obliga­tions made by the Testator to the Queen, amounting to 8000 l. solvendum eidem Do [...]inæ Reginæ, quando requisitus [...]uisset, ultra quam non habet: upon which the Plaintiff demurred, because the Obligation not being upon Record, but taken in pa [...]s was not good, for that the Queen could not take but by matter of Record, and also the solvendum is not to the Queen and Successors; and the Queen is not to have the preferment of payment of her debts, unlesse they be debts upon Record; But yet in such Case if the Queen first sue, she shall be preferred, although she hath Judgement after another who sueth.

The Lord Pagetts Case. 327. The Case was, the Lord Page [...]t seised of divers Mannors, by deed Indented Covenanted with I. S. and others, that in con­sideration of discharge of his Funerals, payments of his Debts and Legacies, and advancement of his Son, and others of his blood, to stand seised of the said Mannors to the use of the said I. S. and others for the Life of the Lord Pagett, and after to the use of C. P. and other for 24. years, and after the expiration of the said Term of 24. years, to the use of William Pagett his Son in tail. Afterwards the Lord Pagett was attainted of Treason; The first Question was, If the Uses limited to I. S. and others were good; or not? Resolved, [Page 69] they were void, because they wanted a good consideration, but if he had made them Executors, and chargeable to the payment of his debts, then the same had been good. Second point, If the use limi­ted to William Pagett should begin presently after the death of the Lord Pagett, or should expect untill the 24. years were incurred after the death of the Lord Pagett, or not at all? Resolved, That the use should be in William Pagett presently, before the 24. years were ex­pired.

Wiseman and Barnards Case. 328. The case was Tenant in tail for the advancement of his Blood, Name, and Issue, covenanted to stand seised to the use of himself in tail, the remainder to the Plaintiff in tail, the remainder to the Queen in see, and died; his issue entred, and suffered a common Re­covery, and died without issue, he in the remainder entred: Resol­ved, That the consideration that the Land should continue in his Name and Blood, was no consideration to raise the use to the Queen. 2. Resolved, that he in the Remainder was barred by the common Recoverie, and the Remainder not preserved by the Statute of 34. H. 8. because it was not of the Provision of the Queen, but of a com­mon person.

Chenyes Case. 329. A seized of Lands made a Lease for years thereof to B. and C. upon confidence for the preferment of the wife of A. and afterwards he made a Feoffment to B. and others to certaine uses of the same Lands: the point was, If the Lease for years were extinguished by the Feoffment? Resolved, That the Terme was not extinct, but was saved by the Proviso in the Statute of 27. H. 8. of uses, which preserved all Interest which the Feoffees had in the Lands to their own uses, and here B. had the Term to his own use, and therefore not extinguished.

Pimbs Case. 330. A committed Treason 18. Eliz. and was attainted 26. Eliz. In the interim he was Conusee of a Fine levied by I. S. which fine was to the use of the said I. S. and his wife: Afterwards I. S. and his wife bargained and sold the Land for money to Pimb: It was con­ceived that the Land was in the Queen, upon the discovery of the Treason and Attainder, which intitles the Queen to all the Lands which Traitors had at the time of the Treason, or after, so as the estate of I. S. and his wife was thereby destroyed by the Relation of the Attainder. Wherefore Pimb sued to the Queen, and she granted him the Land, by her Letters Patent.

Beckwiths Case. 331. Husband and Wife seized of Lands in the right of the Wife; [Page 70] levied a Fine; The husband detained the uses solie one way; and the Wife detained the uses upon the Fine another way; It was re­solved, that both the Declaration of the uses were void; and so by consequence, the uses upon the Fine should be to the use of the W [...]te and her Heirs.

The Lord Mountjoys Case. 332. The Case was this; A Mannor which did consist of Free Rents of 7. l. copyhold Rents of 3. l. and of domaines which had used to be devised for several Rents and Farmes, to which Mannor an Acre of waste parcel of the Mannor of the yearly value of 12. d. Heriotts. Court Baron Leet. and perquisits of Court, which never were devised for Life, years or otherwise, did appertain, and were in­cident, was by a private Act of Parliament given to A. and B. in tail, with diverse remainders over, and the Donees were restrained. Quod non facerent aliquid ad Nocumentum, or disinheritance of the Tenant in tail, or them in remainder, and that they should have power to make a Lease for Life, Years, or at Will, rendring the true and ancient Rent of the said Tenements to be demised, and that all other acts should be void. Tenant in tail accepted of a fine from a stranger of the Mannor, by which they granted and rendred the Mannor for 300. years, rendring rent yearly, amounting to the free Rents, Copy rents, and Farme Rents, and 18. d. more, and 12. d. for the waste, to be paid at two Feasts, whereas the ancient Rent was paid at four Feasts: Tenant in tail died, and if the Lease for 300. years, was to be avoided by the clause of Restraint was the Question: It was Resolved, 1. That although by the purview of the Act, That all Estates restrained by the Act, should be void, yet the same should not avoid the Lease, as to the Tenant in tail himself, but it should be avoided by the Issues in tail. 2. Resolved, That in respect the Acre of waste was never devised before, that the Rent which is entire, reserved out of the whole, cannot be said the true and antient Rent. 3. Resolved, That the reservation of the Rent at two Feasts, where the antient Rent was payable at four Feasts, made the Grant and Render void, for that was to the hurt of the Issues in tail, for it was more beneficial to have the Rent at four Feasts, then at two Feasts; and all beneficial Qualities of the Rent, ought to be observed; and for these causes and others, the Lease for years was to be avoided by the Issue in tail.

Knights Case. 333. The Case was, a Prior seised of divers houses, with the consent of his Covent, made a lease of them for years, rendring rent of 5. l. 10. s. 11. d. at four usual Feasts, upon condition that if the Rent was behind in part, or in all, at any of the said Feasts, he [Page 71] and his Successors to reenter. The Priory came to the King by surren­der: the King by his Letters Pattents under the Great Seal, granted one of the houses to the Lessee, and another in Fee, and afterwards it was found by Commission under the Exchequer Seal, that parcel of the said Rent was behind at one of the said Feasts; the King before the Commission returned, granted the residue of the houses to I. S. in Fee: It was resolved in this case, (amongst other things) That although without Office found, the Lease was not void, and although the Office was not returned before the date of the Letters Pattents made to I. S. yet forasmuch as the Office was found before the Grant, and afterwards it was returned of Record, that the grant was good, and that in this case of Reentry without seisure the Lease was void.

Owens Case. 334. Upon a Fine levyed, the Lands were rendred to A. and to his wife, and to the Heirs of the body of A. A. suffered a Recovery with Voucher in the life of his wife, and afterwards died, the wife died: It was resolved in this case, that the Recovery suffered by the Husband only, did not bind him who was in the Remainder, for be­twixt husband and wife, there are no moyeties, and the joynt estate was not severed by the Recovery against the Husband only, and the husband was not the only Tenant to the Præcipe, but the Recovery as to the estate of the Husband took effect only by way of Estoppel, but it was no bar as to him who was in Remainder; and in this case it was said, That if Lands be given to husband and wife, and the heirs of their two bodies, and the Husband alone suffers a common Recovery, that the same should not bind the Estate tail, although the husband doth survive the wife.

Martin and Wilks Case. 335. It was adjudged in this Case in B. R. That Land in Anti­ent Demesne, is extendable upon a Statute Staple, or Statute Mer­chant. Hill. 11. Jac. int. C. B. Cox and Barnesbyes Case adjudged accordingly.

Wolstan Dixies Case. 336. A seised in Fee of Lands in London, made a Lease to I. S. for years, and after by Deed, enrolled in the Chancery, he sold the reversion to Dixie and his wife, and afterwards the Rent was behind, and he brought debt against I. S. The Defendant said, That after the Lease, and before the Sale to Dixie, A. the Lessor by Deed en­rolled in London, bargained and sold the Land to him; It was ad­judged a forfeiture of the Term, and judgment was for the Plan­tiff.

Rudhall and Milwards Case. 337. Rudhall Serjeant at Law, Cestuy que use, before the Statute of 27. H. 8. Devised the use to C. his younger Son, and the Heirs Males of his body, the Remainder to I. his eldest Son, and his Heirs, upon condition that C. should not alien nor discontinue, but for the Joynture of his Wife, and only for the life of such wife. C. after the death of his Father entred and levyed a fine to a stranger, and decla­red the use to himself and his wife, and to the Heirs Males of his own body, the Remainder to the right Heirs of his Father; after­wards C. having Issue male died, the Wife died; the Heir of I. the eldest Son entred upon the Lessee: It was adjudged that because the Statute of 27. H. 8. gave the possession in quality and condition with the use, and also gave to Cestuy que the same advantages as the Feoffees had, that the said Heir was enabled to take advantage of the Condition, be it a Condition or a Limitation.

The Vis-Countess Bindons Case. 338. The Executors of Viscount Bindon brought Detinue against the Widdow of the deceased Viscount, and declared upon the De­tainer of certain Jewels: The Defendant did justifie the Detainer of them, as her Paraphronalia: It was agreed in this Case by the Chief Baron and others, That Paraphronalia ought to be allowed to a Widdow, having regard to her Degree; and in this Case the Hus­band of the Defendant being a Viscount, that 500. Marks, was but a good allowance for such a matter.

Mich. 28 Eliz. in Cur. Wardor.

Mounsons Case. 339. A Commission in the Nature of Diem clausit extremum, af­ter the death of Robert Mounson issued to Enquire what Lands and Tenements he had the day of his death, of whom, by what services, the yearly value of them, who was his next Heir, and of what age he was: It was found, that the Father of Robert was seised of the Mannor of B. in Fee, and gave the same to Robert in tail, the remainder to G. brother of Robert, the Remainder to the right Heirs of the Father; That G. died in the Life of Robert, and Robert died without Issue, and that F. the Son of G. was within age, and the Lands holden of the Queen in Capite, and that Robert long before his death was seised in tail of H. Farm, and N. and 17. Eliz. levied a Fine to the use of himself in tail, the Remainder to F. the Son of G. in tail, and died such a day without Issue of his body; and upon this Office one Moun­son [Page 73] the Heir general, prayed a new Office, for it was said that the said Office was insufficient to entitle the Queen to the Wardship of F. the Son of G. It was the opinion of the Court, that the Office was good to entitle the Queen to the Wardship of F. the Son of G. But if it was not, then a Melius in [...]quirendum should issue forth, and not a New Office.

Branches Case. 340. In the Case of a Prohibition; It was Resolved, that an Union of Copyhold Lands, and of the Parsonage in the hands of the Parson, as Parson Impersonce, was no discharge of the Tythes of the Copyhold Lands; and in this Case also it was adjudged, That a Farmer of Lands might prescribe in modo Decimandi, but not in non Decimando.

Moor and Williams Case. 341. Assumpsit; The Case was; Lessee for years, the reversion to M. the Lessee in defence of the Plantiffs Title, spent such a Sum money, and prayed contribution or recompence; Moor said in con­sideration thereof, he should have the like Lease after the expiration of the Term, which Williams the Defendant required, and the said Lessor refused to make, upon which Williams brought Assumpsit. Re­solved it did not lie, because the Consideration was executed before the promise.

Stanley and Bakers Case. 342. A man possessed of a Lease for years, devised the same to his eldest Son, and the Heirs of his body, and if he died without issue to his youngest Son, and the heirs of his body, and for want of such Issue, that the Term should remain to his Daughters; he died having two daughters, and afterwards another daughter was born; The eldest Son sold the Term, and died without Issue; the youngest Son died without Issue; the three daughters entred: It was adjudged they all three should have the Term, although the youngest Daughter was not born at the time of the death of the Devisor.

Owens Case. 343. Tenant in tail, the Remainder in tail: Tenant in tail bargain­ed and sold to him and his Heirs, and levied a Fine, which was not al­ledged to be with Proclamation: It was adjudged that the Bargainee was not such a Grantee of the Reversion, as should maintain Wast, because it was no discontinuance, and but for the Life of Tenant in tail.

Higham and Harwoods Case. 344. A man had houses and Land, which had bin in the tenure of those who had the Houses, and he devised his Lands with the appurtenances: It was adjudged, That the Lands did pass by the [Page 74] words, with the appurtenances, for that it was in a Will in which the intent of the Devisor shall be observed.

Watkins and Ashwels Case. 345. A seised in Fee, made a Feoffment upon condition, that if he or his Heirs, paid such a sum such a day to reenter: He died, his Son and Heir within the age of 14. years: The Mother of the Infant, without the privity of the Infant, and who was not Guardian in So­cage, in the name of the Infant, tendred the mony at the day: It was resolved, it was an Insufficient tender; otherwise if she had been his Guardian in Socage.

Carewas Case. 346. The Abbot of M. was seised, and made a Lease for years, De scitu Manerii Rectoriæ suæ, & de omnibus ædificis, &c. & de Decimis eidem pertinent, & spectant. Habendum dectum scnum cum pertinenciis. The question was what estate the Lessee had in the Tythes at Will, or for years; It was the opinion of Manwood Chief Baron, that he had an Estate in them for years, and not at Will; for where several things are in a Grant, and after the Habendum comes to li­mit the Estate, it is superfluous to recite the particular things in the Habendum, and the Tythes being particularly recited, shall therefore pass by the Habsndum, which limits the Estate for years.

Crops Case. 357 A man made a Lease for years, reserving Rent at Mich. and the Annunciation, and if it be behind by the space of a month, to reenter. The next day after Mich. the Lessor sent the Rent by his Servant to the house of the Lessor, who tendered it to his person, and he refused it, and afterwards upon the last instant of the day it was demanded upon the Land: It was adjudged a good tender, and the Lessor could not enter.

Beverley and the Bishop of Canturburyes Case. 348. A seised of an Advowson in gross, presented K. who was In­ducted: the Advowson afterwards desdended to B. and C. Coparce­ners. B married I. S. C. married T. B. and had Issue. C. died, T. B. the Plantiff being Tenant by the Curtesies, the Church became void by the deprivation of K. and because they could not agree in the presentment, the Clerk of B. the eldest Sister, was received by the Bishop, which was since dead, so the Plantiff, Tenant by the Cur­tesie presented, and being disturbed, brought the Writ. The In­cumbent being presented by the Queen, pleaded thae K. being in­ducted, accepted a second Benefice of the value of 8. l. and so the Church was void by the Statute of 21. H. 8. of Pluralities. It was adjudged for the Plantiff, for that the deprivation of K. and the [Page 75] Plurality of the Clerk of the eldest Sister since dead, were not denied after the acceptance of the second Benefice.

Saunders Case. 349. Information upon the Statute of 1. E. 6. for landing of goods at Ratcliff Custom, not paid nor agreed for: It was pleaded in a Bar A. was seized of the Mannor of S. in Sussex, and had wreck of the Sea appertaining to his Mannor by Prescription; and that the Mannor Contigue adj [...]c [...]t mare altum; and said the goods were wreck, and cast upon the land of the Lord, and that he seized them, and so justified. Qu. If a good Justification.

Morris and W [...]bors Case. 350. The Case in effect was this: A man was divorced Causa [...]ri­giditatis, and afterwards took another wife and had issue; It was ar­gued by the Civilians, and also by the Justices, if the Issue was Ba­stard or not; It was adjudged that the Issue by the second wife was not a Bastard; For that by the Divorce the Marriage was dissolved [...] vinculo Matrimonii, and each of them might marry again: But ad­mitt that the second marriage was voidable, yet it stands good till it be dissolved, and so by consequence the Issue born during the Co­verture, is a lawful Issue.

Term. Hill. 29. Eliz.

Fanshaws Case. 351. In Ej [...]ctione firme; the Case was shortly thus: King Henry the Seventh erected and Founded an Hospital by the name of M [...]ster and Chaplains of the Hospital of King Henry the Seventh de le Savoy: And afterwards in the time of Queen Mary, a lease was made of Lands, parcel of the Hospital by the name of Master of the Hospi­tal Henrici nuper Regis Angliæ septim [...] vocat le Savoy: and if it was a good Lease or not was the Question: The Case was first argued in the Exchequer, and there adjudged that the Lease was void by the Judgment of two Barons; Afterwards a Writ of Error was brought in the Exchequer Chamber; there the Case 3. Eliz. was argued a­gain, but it was not adjudged: but afterwards the Case was com­pounded; but the better opinion of the Justices there seemed to be, that it was a good Lease, and that the words De le Savoy, & vocat le Savoy, were idem sensu.

Crosman and Reads Case. 352. Debt against the Defendant Executrix of T. R. her former husband upon an Obligation of 200. l. The Defendant pleaded [Page 76] fully administred: It was found she had Asserts to the value of 80. l. parcel of the 200. l. and that the said T. B. borrowed of F. R. her late Husband 60. l. and that the Defendant being Executrix to T. B. took the said F. R. to Husband, who died; the Court gave Judgment that the Plantiff should recover the 80. l. and for the re­sidue, in misericordia pro falso clamore, so as the Court conceive the 60. l. was not Assetts in her hands.

Rous and Artois Case. 353. A man was Tenant for another mans life of a Mannor; Cestuy queuse, died. The Tenant continued possession of the Mannor, and held Courts, and made voluntary Grants by Copy: It was adjudged he should not bind the Lord, for he was but Tenant at Sufferance, who had not any Interest, and so he was a Disseisor of the Mannor.

Broke and Smiths Case. 354. The Case was: Lord and Tenant, the Tenant levied a Fine to the King, who afterwards gave the Land Tenendum of the King by Knights Service; The Lord distreined the Patentee for the Rent and Services. If the Seignory was revived, was the Que­stion: It was conceived it was, and that it was suspended only for the time in the King: Qu. It was not resolved.

Knowles and Powels Case. 355. The Queen seized in Fee, made a Lease for years to one who was Out-lawed at the time of the Lease made, and afterwards the person was Out-lawed again, and before seizure came a generall Pardon of all goods and chattels forfeited; In this Case Resolved, First, that a man Out-lawed was capable of a Lease from the Queen, as a Farmer to the Queen, and that the Pardon with restitution was sufficient to revive the Term forfeited: Secondly, That a man Out­lawed and Pardoned had property in his goods.

Bonds Case. 356. Bond erected a Pigeon-House upon certain Lands which he held in Lease for years, the reversion in the Queen, being parcel of her Mannor of F. in the County of S. It was the opinion of Manwood Chief Baron and Gent. That none could erect a Dove-house but the Lord of the Mannor, or the Parson, and said that in ancient time it was accounted a Common Nusance, presentable in the Leet.

357. Note by Manwood Chief Baron, where it is ordained by the Statute that for doing, misdoing, or not doing of a thing, the Offen­dor shall forfeit such a Sum, not expressing to whom, there the for­feiture shall be intended to be to the Queen, unless the penalty be assessed for taking Goods, Chattels, or other things, in which the Subject hath a Property, and then he which hath the loss, shall have the forfeiture.

Warrams Case. 358. A Protection was granted to him by the Queen, and it was Quod Prærogativa nostra Regia suscipimus in protectionem nostram Re­giam corpus, terras & bona de Warren; Et nolumus quod inquiratur, neque quod Prærogativa nostra arguatur: The Protection was disal­lowed by the Court, and it was said, That the Prerogative of the King, which tends to the prejudice of the Subject, is not allow­ble.

Baldwine and Cooks Case. 359. A Lease was made to Husband and Wife for years, if they or any issue of their body should so long live; one of them died ha­ving no Issue. Resolved the Lease was not determined, for it is to be taken, if the Husband, or the Wife, or the Issue should live, the Lease was to continue.

Kernes Case. 360. Debt upon Obligation: The condition was, That if the Defendant within a Month after the decease of his Mother, pay to I. S. 20. l. or 20. Kyne at the Election of I. S. that then the Obliga­tion should be void. The Defendant pleaded that the Plantiff did not shew to him his Election which of the things he would have within the month; Resolved, that he ought to have shewed his Election to the Defendant within convenient time, before the expiration of the month; for it shall be against Reason that the Defendant shall be charged to make provision of both things.

361. The Case was, T. B. recovered in a Quare Impedit, and be­fore he had Execution, he was Out-lawed. The Queen brought a Scire facias to execute the Judgment: It was resolved that the Scire facias to execute the Judgment was well brought, and there was privi­ledge enough to sue execution of the Judgment, because the thing as it was in the Plantiff, is in the Queen, and that is a thing in action, and therefore it cannot be a thing in possession in the Queen, and so she is not to present, but is to prosecute the Execu [...]ion of the Judgment.

362. Note where an Obligation was taken with a Condition that he should not exercise the Art and Mystery of a Black-Smith within such a Town; Resolved, the Obligation was void, and the Condi­tion a Condition against the Law.

Mascalls Case. 363. A. leased an house to B. for years, B. covenanted to repair the house, and that it should be lawfull for A. his Heirs and Assignes to enter into the House, and see in what Reparations it stood, and if upon view any default should be found, and thereof warning be given to B. his Executors, &c. then within four months after such [Page 78] warning it should be amended: A. granted the Reversion over to C. in Fee, who upon view gave warning to B. which upon warning was not repaired; upon which C. as Assigne of A. brought Covenant; it was said the Action did not lye, because the house became ruinous before his interest in the Reversion: Resolved the Action did well lye, for it is not conceived upon the ruinous Estate of the house, but for the not repairing within the time appointed; and so it is not ma­terial at what time the house became ruinous.

Caines Case. 364. C. and his Wife being Joynt-Tenants, the Husband alone was impleaded, and made default: the Wife prayed to be received; it was the opinion of the Court, she was not receivable, because she was no Party to the first Writ; Then he prayed that he in rever­sion might be received. It was said he was receivable because but one of the Tenants for life was impleaded. The opinion of the Court, that he should be received; and might plead the Joynt-Tenancy in abatement of the Demandants Writ.

Purfreys Case. 365. P Leasee of 40. year. of a Tavern in London, leased the same to J S for three years, who covenanted and granted with P. that from time to time he would keep the same a Tavern and sell Wine there, and that he monthly, and every month upon request, would make an account to the Lessor, or his Assignes, of all Wines should be there uttered or sold, and would pay to the Lessor or his Assigns, 30. s. for every Tun of Wine sold, P. granted the Interest of the Reversion of the Term to a Stranger, and afterwarda he demanded an account, and the Lessee refused, upon which he brought the action upon the Bond to perform Covenants, and if the Grantor should give an ac­count notwithstanding his Assignment; or the Grantee should have an account as Assignee by the Statute of 32. H. 8. was the Question, the Case is argued but not resolved.

366. Note by Anderson Chief Justice, there is a difference be­tween general words infamous, given to a private person, and when to a publique Officer or Magistrate; for a private person is not slan­dered without a particular Infamy, but by general words a Magistrate or Officer may be slandered. Wherefore Resolved, that these words spoken of a private person, were not actionable. viz. Thou shouldst have sit on the Pillory, if thou hadst thy desert.

The Lord Wentworths Case. 367. The Case was: The Lord Wentworth procured a Grant of the Wardship of Withypoll from the Master of the Wards, Attorney and Auditor, and dyed. The Lord Wentworth his Son procured a Bill assigned, and upon it Letters Pattents within four months to be made [Page 79] to him, which Letters Pattents were to this effect, That the Queen had granted to him Custodiam hæredis & terræ de Withypoll; Provi­so, that if the said Withypoll shall die within age, not married, nor the effect of his marriage taken, that then the said Lord Wentworth the Son should have the Ward, and marriage of his Heir▪ at the end of his Letters Pattent, there was a general Non obstante of all Statutes, Restrictions, &c. The Lord agreed with Withypoll for his Wardship, and in consideration of 400. l. to him paid, did release to him the Wardship, and gave liberty to him to marry at his pleasure; Proviso, if he did not pay 1200. l. at a certain day, the Grant should be void, before which day Withypoll died, his Brother being his Heir within age; and the Lord Wentworth sued to have the Wardship of him, by his Letters Pattents. There were four points in the Case. 1. If the Patent be persuant to the Statute of 32. H. 8. of Erection of the Court of Wards. 2. If this Statute which en­abled the Masters and Officers of the Court of Wards, should have Authority to make Sale and Grants of the Kings Wards, had restrain­ed the King himself, that he could not grant them. 3. If the general Non obstante had dispensed with the Statute in the two points afore­said. The 4. If the effect of the marriage shall be said to be taken: This case was argued by Cook and Egerton for the Queen: and Heale and Yelverton for the Lord Wentworth: but the case was not resolved, but adjourned. Ideo Qu.

Margery Davies Case. 368. A man was bound in Covenant and Obligation upon it, to pay to the three daughters of a Stranger 10. l. a piece, at their seve­ral ages of 21. years; the party lying sick made his Will, and in performance of the Covenant, he devised to each of the Daughters 10. l. to be paid at their several ages of 21. years; One of the daughters sued his Executors in the Spiritual Court for her Legacy: and upon suggestion by the party that he is bound to pay her 10. l. at her age of 21. years a Prohibition was granted, and the intent of the Devise was, that he should not be twice charged.

369. One sued an Administrator for debt, upon pleinement admi­nistr. The Jury found Assetts for part to the value and Judgment for that part for the Plaintiff, and that for the residue the Defendant eat siæ die, and now he brought a Scire fac. surmising Assetts to the value of the Residue: It was the opinion of the Court that it did not lie.

370. Debt upon Obligation, with condition, if the Obligor pay to the Obligee 10. l. or four Kine such a day, at the then Electi­on of the Obligee, the Obligation to be void: It was the opinion of the Court, that the Obligor is to tender both at the day appoint­ed, [Page 80] by reason of the words, at the then Election, which word then, shall have relation to the day appointed.

371. A Lease was made to three, Habendum to them for 99. years, viz. to the first for 99. years if he should so long live, and if he died to the Second, pro residuo termino anaorum tunc ventur, if he should so long live, and if he died within the Term, then to the third, pro residuo termino annorum ad tunc ventur. It was the opinion of the Ju­stices, that it could not enure by way of Remainder, because there was not any Estate in esse, during the particular Estate; Yet they conceived the Estate of the second was good, because it did enure as a new Grant. Qu.

372. In a false Imprisonment, against a Mayor, he justified; be­cause he being a Magistrate, the Plantiff said, he was a Fool: It was the opinion of the Justices, that if he called him Fool in the place and exercise of his Offic [...], that the Imprisonment was lawfull; otherwise not.

Vdeson and the Mayor of Nottinghams Case. 373. Vdeson was in the custody of the Mayor, upon the Statute of 23. H. 8. and he would not let him at liberty upon Sureties; wherefore he sued by Bill here, and and Declared against the Mayor in Custodia Marischalli, and recovered by Verdict. It was the opinion of the Justices, that by the Statute of 18. Eliz. none should sue for any penalty upon a penal Law, but by original Writ or Informa­tion, and so it was said it was adjudged in the Bayliffs of Bosworths Case.

Griffiths Case. 374. It was was Resolved by the Justices, That Error lyeth in the Kings Bench, upon a Judgment given in an Ejectione firmæ in Wales, given before the Justices there.

375. A Draper having a Servant to sell Clothes in his shop, the Servant took the clothes and converted them to his own use: It was adjudged that Trespasse vi & armis, lyeth only against the Servant, because he had the possession as Servant; and it was Resol­ved, That in all cases where the Servant hath not a speciall nor gene­ral property, Trespasses lyeth.

376. One made a Lease for years, the Lessee devised the Term to his wife for so many years as she should live, and after to his Son, the Wife purchased the Inheritance, and sold the same again, and covenanted that it was discharged of all Incumbrances, and died: The Son claimed the Term; it was adjudged, the possibility to the Son, was a forfeiture of the Covenant and Bond of the Wife.

Sir Thomas Gorges Case. 377. The Queen seised of a Mannor, to which an Advowson was appendant, and granted the Mannor una cum advocatione Ecclesiæ, the Church being then void; Adjudged the Avoidance did not pass, but the Queen should present pro hac vice.

378. A man who was bound in a Recognizance for the good Be­havior, was indicted that he called one Pealer, Lier, Druakard, and said, I will make thee a poor Kirton, and also Quare clausam fregit & averia cepit & injustè detinet. It was Resolved by the Justices in B. R. That these were not words▪ which threaten a battery of his Body, without which the Recognizance is not forfeited.

379. Debt brought in the City of Oxon: The Defendant plead­ed that he was one of the Barons of the Cinque Ports within the County of Kent, and pleaded to the Jurisdiction of the Court: upon which the Plaintiff demurred. Qu. If a good Plea. It was not Resolved.

Hayward and Bettesworths Case. 380. Replevin: the Defendant avowed for Rent; the Case was, The Father was seised in Fee, and let the Land to the Plaintiff for years rendring Rent, and afterwards he infeoffed a Stranger▪ and executed livery upon parcel of the Land in a Close called D. the Lessee nor any of his Cattel being there, but being in the house. It was adjudged that nothing passed by the Livery, but that the reversion of the whole descended, and therefore it was adjudged for the Avowant.

Pigott, Palmers and Grangers Case. 381. The Case was, A. was seised of Land, which he intended to sell to the Father for 160. l. of which 140. l. was paid by G. in con­sideration of the Marriage of Pigott with the daughter of Granger, and that the Land shall be conveyed for the Joynture of the daugh­ter, and the Heirs Males of their Bodies; they intermaried and had Issue, the Plaintiff Pigot died, the wife took Husband Palmer the Defendant, and they accepted a Fine of a Stranger, with a render to the Stranger for 100. years, rendering the ancient rent, the wife died. It was resolved, that the taking of the Conveyance with the render for 100. years, made the Estate of the wife void, by the Statute of 11. H. 7.

Zouth and Bamfields Case. 382. In a Formedon in the Discender brought of the Moiety of a Mannor; The Defendant pleaded in Bar, that the Grandfather of the Demandant levied a Fine, sur Conusance de droit, &c. with Pro­clamation of the moiety of the said Mannor, by which Fine it was granted and rendered to the Grandfather and his Heirs, whose estate the Tenant in the Formedon had. The Defendant replyed, that at [Page 82] the time of the Fine levyed, and after the Demandant was seised of the Land in his Demesne as of Fee: It was Resolved, That the De­fendant being Heir in tail against such Fine levyed by his Ancestor, whose Heir he is, was estopped to aver his seisin and continuance there­of as a stranger at the time of the Fine levyed; Nor to add, Quod partes finis nihil habuerunt. Against which it was objected; 1. That by the Statute of Donis, It is provided, Quod finis ipso jure sit nullus. 2. That the Statute of 27. E. 1. of Fines doth not extend to Heirs in tail, but to Heirs in Fee, and that the Issues in tail are not bound by Fines which enure by way of Estoppel. 3. That the Statute of Fines extends to Fines ritè Levatis, and that a Fine is not ritè Leva­tus, when partes finis nihil habuerunt. To all which it was Answered and Resolved, That the Issue in tail is not excepted in those Statutes, and therefore is bound by the very Letter of the Acts 2. Although the Issue in tail was not bound by any Fine by his Ancestors untill 4. H. 7. yet in such Case he was ousted to add, Quod partes finis nihil habuerunt, being privy as Heir to him who levyed the Fine first, 3. That a Fine may be said ritè Levatus, although partes finis nihil habuerunt, and it may be ritè Levatus, although it be a Fine meerly by Conclusion.

Elmer and Goales Case. 383. In Ejectione firmæ, the Case was: The Abbot of West. was seised, and let the Lands for 60. years to a Stranger; the Abby was dissolved, and King Henry 8. united it to the Bishoprick of London, The Bishop 12. Eliz made a Lease for three Lives, the Lease for 60. being in being for 16. years, which Lease was confirmed by the Dean and Chapter, the Lease for 60. years expired; the Lessees for three Lives entred and were seised, untill the Bishop en­tred upon them, and made the Lease upon which the Action was brought; The point was, if the Lease for three Lives were good; It was Resolved, it was good, and stood good, because the Statute of [...]. Eliz. which made Bishops Leases was not pleaded, and the Statute being a private Act of Parliament, the Judges were not to take n [...] ­tice of it, if it were not pleaded.

Butler and Babers Case. 384. The Case was; A. seised of the Mannor of Toby in Fee, and A. and his wife seised of the Mannor of Hinton to them and the Heirs of their bodies, the Reversion to A. in Fee: Toby amounting to the value of two parts, and Hinton to the third part, both hol­den in capite. A. by his Will devised the Mannor of Toby to his Wife for life, upon consideration that she should not take her former Joyn­ture in Hinton, with divers remainders over; the Wife in pais dis­claimed and waved her Estate in Hinton, and agreed to the Mannor [Page 83] of Toby, and entred upon it; and if the Devise was good for the whole Mannor of Toby, or for two parts only, was the Question▪ It was Resolved in this Case by the greater part of the Justices upon argument in the Exchequer Chamber, that the waving of the Joynture by the Wife, made an immediate discent by Relation to the Heir, and that the Devisor was not such a person having Lands, as could dispose of it according to the Statute; and in this Case it was agreed by the Justices, That if one deviseth Land in which he hath nothing, and afterwards he purchaseth the lands, that the same is not a good Devise within the Statute of Wills, because he is not a person having, &c.

Priscot and Chamberlains Case. 385. In a Replevin: the Case was; Tenant for Life, the Remain­der in Tail, j [...]yned in a Lease for years; afterwards he in the Re­mainder, in the life of Tenant for life, suffered a Common Recovery, the Recoverers sued execution upon the Lessee for years, and after­wards enfeoffed Lincoln Colledge in Oxon, to whom the Son and Heir of the Tenant in Tail, in the life of his Father, released with Warranty: the Lessee for years reentred; the Tenant for Life, and he in the Remainder in Tail, both died; the Son of the Tenant in Tail had issue, who by his Bayliff distreined the Chattel of the Lessse for years, as damage Feasants upon the Land, and he brought a Re­plevin. The point was, if by the common Recovery, o [...] the Release of the Issue in tail, with Warranty, the tail was barred: It was a­greed by all the Justices, that the Issue in tail was not bar [...]d by the Recovery, nor by the Warranty; but whether he should avoid this Recovery in this Action, being a possessarie Action, or put to a rent Suit, was the doubt; wh [...]ch was not resolved; The Case was ad­journed.

Hennage and Curtes Case. 386. Trespass for breaking his Close in Hainton: The Defen­dant justified that there was a Foot way leading through the said Close from Ha [...]mon to the Foot-way of Horn-Castle, for all persons travelling from Hainton to Horn-Castle; they were at Issue upon the Prescription; and because the Venire was de Hainton only, whereas it ought to have bin from Hainton and Horn-Castle; It was said that the Tryal was erroneous, and the Judgment was reversed.

Bonnet, Halsey and others. 387. The Plaintiff was taken in Execution at the Defendants Suit by the Sheriff of B. and by an Habeas Corpus, he was brought to Smithfield by the Goaler of B. and there at Eight of the Clock of night, the Prisoner went into Southwark, and there conti­nued all night, and the next morning he returned to Smithfield to his [Page 84] Keeper, and there continued with him till the return of the Writ, at which day he brought him to the Lord Chief Justices Chamber at Serjeants-Inn, and he returned his Writ, and the Chief Justice committed him to the Marshalsey: It was judged it was no Escape in the Sheriff, and adjudged upon an Audita Querela, brought by the Plaintiff for the Defendants.

Wray, Street, and Coopers Case. 388. The Prior of M. was seised of three Messuages in the Bo­rough of Southwark, and held them of the Bishop of Canterbury, as of his Borough of Southwark. The Priory came to King Henry 8. by surrender; Afterwards the Bishop gave the Burgage to the King, which Gift was confirmed by the Dean and Chapter. The King anno 36. gave the said three Messuages and others to C. and D. Tenendum li­bero Burgagio by Fealty only, and not in Capite, and C. and D. gave the Messuages to W. and his Wife; W. died, his Wife survived. King Edward 6. gave Totam Burgagiam de Southwark to the Mayor and Burgesses of London. In the time of Queen Mary the Wife W. dyed, by which the Messuages escheated. Queen Mary gave them to one who gave them to A. who gave them to the Defendants. The Mayor and Burgesses of London entred: The Question was, if the Tenure should be in Capite, or in Burgage; and if they passed to the Mayor and Burgesses by the Grant of Edw. 6. of Totam Burgagiam de Southwark: It was adjudged against the Mayor and Burgesses of London, because there could not be several Tenure fo [...] these parcels, Tenendum ut de Burgo, and another Tenure for the Re­sidue of the Lands in other places, which could not be holden de Burgo; and also because the Patent having two intents, the bes [...] shall be taken for the King.

Pasch. 30. Eliz.

The Queen and Bishop of Lincolns Case. 389. Quare Imp. The Case was: The Bish. of Lincoln Patron and Ordinary collated to a Benefice in 8. Eliz. The Incumbent took ano­ther Benefice without Qualification, by which the first was void: The Successor Bishop 18. Eliz. presented one E. but non constat, if by avoidance, death or resignation: E. being in, the Bishop was remo­ved to Winchester. The Bishop that then was, certified that E. did not pay his Tenths, upon which the Church was void, and the Bishop collated I. S. to the Church. The Question was, if the Queen might now avoid the Incumbent, to have her presentment, which [Page 85] accrued to her upon the avoidance of the first Incumbent, who took a second Benefice without Qualification. The Justices at the first doubted it, but afterwards this Term, it was adjudged for the Queen against the Bishop.

390. Three bound themselves in an Obligation by these words, Obligamus nos & quemlibet nostrum conjunctim: the Obligor brought debt against one of them; It was the opinion of the Justi­ces it did not lie, and that the words Et quemlibet eorum did not make it several.

391. The custom of Kent is, that the Wife shall be endowed of the Moiety of Gavelkind land, and shall lose her Dowry if she marry again: It was the opinion of the Justices, that she had not Election to be endowed of the third part at the Common Law, but was tied to the Custom.

Stampe and Hutchyns Case. 392. It was Resolved, That if an Executor gives his own Bond for mony which his Testator was bound to pay by Bond, and so re­deems the Bond of his Testator, that he may retain so much money in his hands, as if he had paid the mony in facto.

Gorges Case. 393. One called another Cousening Knave, and said, He had cou­sened him: Adjudged the words not actionable.

394. It was Resolved; That if one who hath a Benefice, takes a Prebendary, that the same is not an avoidance of his first Benefice within 21. H. 8.

The Lady Greshams Case. 395. Sir Thomas Gresham seised in Fee of the Mannors of M. and C. in the County of N. 12. Eliz. levied a Fine thereof to the use of himself, and the Lady Ann his wife, To B. and C. with power of Revocation, that if Sir Thomas should pay 10. s. to B. and C. or the Heirs of B. then the same to be to the use of Sir Thomas and his Heirs. In 13. Eliz. he levied another Fine to the said Conusees of the Mannors of N. and F. to the same uses declared by another pair of Indentures, with the like payment of 10. s. B. dyed, Sir Thomas paid one Sum of 20. s. to C. in Revocation of the uses raised upon both the Fines; and after he raised divers uses and estates of divers Mannors holden in capite, without license of Alienation, and died. It was in this Case amongst other things Resolved, That the uses were not revoked, but that the revocation was void, because two several sums of 10. s. ought to have bin rendred, and not one sum of 20. s. for they were several Indentures, and several Mannors, and could not be satisfied with one Sum; for which cause all the Mannors came [Page 86] to the Lady by Survivor, and that there was no Fine due to the Queen upon his alienation without License.

The Queen and Palmors Case. 396. In Intrusion; the Case was; R. Bishop of Chichester ha­ving the Wardship of one I. D. 12. E. 2. devised by his Will, that his Executor should sell the Wardship, and with the money purchase Land, with which should be sustained three Priests to sing Mass, each to have six Marks, and if he could not purchase so much as to find the three Priests, then he should find two. The Bishop died; his Executors purchased Land, and gave the same Deo & Ecclesiæ de Chichester, so as he and his Successors should have the Issues and profits thereof for the sustentation of 2. Priests, whereof each to have 4. l. per an. and the Prebends of the said Church have always made Leases of the Land, and sustained the Priests as afore­said, till the Statute of d [...]ssolution of Chaunteries; and the Defen­dant said he was in by the Lease of the Prebends, and traversed the Int [...]usion. The 1. point was, if by the Statute of 1. E. 6. of Chaun­teries, the stipend of 8. l. given for the sustenance of the Priests, or the Land was given to the Queen. 2. If by the Proviso of the Statute, the Land and the Rent in the Land only, or nothing be sa­ved. It was said by Anderson Chief Justice that where a Gift is made to sustain poor Men and Mass-Priests, without limitting a certain quantity, how much to one use, and how much to the other use, there the Queen should have the whole Land: but if the quantity was appointed as to one use, and how much to another use, there the Land is not forfeited, but only so much as is employed to the super­fluous uses. Qu. The Case was Adjourned and not Resolved.

Slywight and Pages Case. 397. In an Information upon the Statute of 32 H. 8. for buy­ing of Titles: The Case was, The Plaintiff being Dissisee of Lands, made a Lease by Indenture, being out of the Land to try his Title. It was a doubt if this Lease by Estoppel and not in Interest was within the Statute. It was adjudged it was, and was Maintenance, al­though the Lease was made to his Brother in Law.

Fisher and Boyes Case. 398. A Colledge in Oxford was incorporated by the Name of Gardiani & Schola ium Domus sive Collegii Scholarium de Merton de Vaiver [...]tate Oxoniæ, and they made a Lease of the Lands of Custos Domus sive Colleg [...] de Merton & Schol [...]res ejuidem Domus in Ox­onia: It was adjudged that the variance was not material, but they did agree in substance, and the Lease was good.

The Countess of Rutlands Case. 399. It was holden by the Court in this Case▪ That Executors may have, and maintain Trover and Conversion, upon a Trover and Conversion in the Life of the Testator; but then in the Action the day of the Conversion, and the place of the Conversion, are to be alledged.

Bond and Richardsons Case. 400. Debt upon Obligation; the Condition was, If the De­fendant pay 20. l. the 7. day of May 1558. at the house of the De­fendant in Southwark, that then, &c. It was found by verdict that the Defendant paid the 20. l. before the 7. day of May, at the house of the Defendant in Southwark, but not solvit in the 7. day of May, It was adjudged a good payment.

Leversage and Cabbells Case. 401. Ejectione firme; The Case was; A. made a Lease to B. C. and D. by Indenture, to have and hold to them for their Lives; Proviso, and it is covenanted and agreed betwixt them, That the Second shall not occupy the Lands during the Life of the first, and the third not occupy, during the Life of the Second; The first oc­cupied all and died; the third entred and made the Lease. It was adjudged, That by the Premises of the deed, the parties to whom the Land was devised being expressed, and in the Habendum, the Estate being limitted as the Office of the Habendum is, That the Proviso that cometh after should not avoid it; and therefore Resol­ved that it was a joynt Estate, and that the Proviso should not sever it.

Hudson and Lees Case. 402. In Appeal of Maihem; The Defendant pleaded that the Plaintiff had brought an Action of Battery, and recovered therein for the same Battery and Wounding, upon which the Appeal was brought; and it was adjudged a good and sufficient Plea in Bar.

Lee and Lees Case. 403. A. had three Sons, F. I. and G. he devised his Land to I. for 21. years, to the intent to perform his Will, and pay his Debts, and he made him his Executor, and if I dyed within the Term, then G. to have the like Term as I. had, and G. then also should be his Executor, and devised the Land to F. in tail, the remainder to I. in tail, the remainder to G. I. entred; F. died without Issue, I. had [...]ssue P. the Defendant, and died within the Term: It was the opinion of the Court, That if Land be devised for years to one, and if he die within the Term, that another shall have the residue of the years, that no Act of the first can prejudice the Remainder [Page 88] of the second: but otherwise if one who hath a Term deviseth his Term, with such a Remainder, and a difference taken between a de­vise of the Term, and a devise of the Land.

Beverley and Cornwells Case. 404. Note, in this Case; which Case vide before, That if any Advowson comes to the Queen for forfeiture by Outlawry, and the Church becomes void, and the Queen presents, and then the Outlawry is reversed for Error, yet the Queen shall enjoy the Pre­sentment, because it came to the Queen as a profit of the Advow­son; but if the Church be void at the time of the Outlawry, and the Presentment is forfeited as a Chattel principal and distinct, and then the Outlawrie is reversed, the party shall have restitution of the presentment.

More and Hales Case. 405. The Case was; A Vicar let his Viccarage, and all his Glebes and Tythes to I. S. for 21. years, rendring 22. l. rent to him and his Successors, which Lease was confirmed by the Patron, Dean, and Chapter; the Lessee assigned over his Term to the Plaintiff, and averred the Rent was the usual Rent. The Plaintiff devised the Viccarage to the Defendant, rendring 30. l. per an. and for not pay­ment of 15. l. half a years Rent brought debt. The Defendant pleaded the Statute of 13 Eliz that no Lease of a Benefice with Cure should continue longer then the Lessor should be resident ser­ving the Cure, without absence 80. days, and averred the Viccarage was a Benefice with Cure, and that before the Rent day the Lessor died, and that I. R. was made Vicar: Whether the Lease was void, the Court was now divided in opinion: But vide in Cro. 3. part 131. It was Resolved that in this Case the Lease was void by the death of the Lessor.

Page and Griffiths Case. 406. Ejectione firme; the Case was, Lessee for Life bargained and sold the Land to one and his Heirs, and afterwards 14. Eliz he suffered a Recovery thereof to the use of the Bargainer: It was ad­judged, that the suffering of the Recovery was a forfeiture.

Spitle and Davies Case. 407. A man devised Lands to his youngest Sons, Proviso, If his Sons o [...] any of their Issues, devise any of the Lands before their age of 30. years, then the others shall have the Estate; the eldest Son made a Lease thereof before his age of 30 years; the youngest Son entred, and before [...]he 30. years ended aliened the Land, the eldest Son entred: Resolved, 1. It was a Limitation. 2. That when the younger Brother hath once entred for the Alienation, then the Land [Page 89] is discharged of the Limitation. Vide Owens Rep. 8. the same Case.

Ever and As [...]ons Case. 408. The Custom of a Mannor was, That if any man had a Wife who was a Copyholder in the Fee of the Mannor, and had Issue by her, that he should be Tenant by the Curtesie of the Land: It was found that A. a Copyhold was seised, and had [...]ssue a Daugh­ter, who was married to I. S. who had Issue; A. died, his Wife entred, the Wife died before admittance. The points were. 1. If Ejectione firme did lie upon a Lease made by Copyholder. 2. If by the entry of the Husband without admittance of the Wife, he should be Tenant by the Curtesie; The Court doubted of the first point, but for the second were of opinion that the Husband was well enti­tuled to be Tenant by the Curtesie before admittance of the Wife, and the delay of the admittance by the Lord should not prejudice the husband, being a third person.

Bewacorn and Caters Case. 409. Sir Ralp [...] Rowlet possessed of a Term of years devised the same to Sir Robert Cutlin Lord Chief Justice during his Life, and after to a strarger, and made the said Sir Robert, with the Lord Keeper and others his Executors, and died. The Executors writ their Letter, and annexed the Will unto it to Doctor Dlae, praying that because they could not attend the Execution of the Will, that he would condition the Administration to I. S. which he did so, reciting in his Regi­ster, Quia Executores distulerunt & adhuc differunt executionem Testa­menti. Afterwards Sir Robert without assent of the Administration, entred into the Term and devised it; The point was, if the Letters so written was a Refusal of the Executorship: It was Resolved by the Justices, after the Case had been argued by the Civilians in Court, that it was a Refusal of the Executorship.

Osborn and Gameones Case. 410. The Case was; I. levyed a Fine of 48 [...]. 8. d. Rent charged in W. to I. S. and his Heirs, and the use was to such persons as I. S. should declare, who afterwards declared the use to I. D. and his Heirs, and the Defendant in a Replevin avowed as Bayliff of I. D. It was demurred unto because he did not shew any Attorn­ment: The Question was, If Cestuy que use of a Rent in esse grant a Rent by Fine after 27. H. 8. might avow without attornment. Quære, not Resolved.

Ognell and Pastons Case. 411. In Debt in the Exchequer; The Case was: W. and F. ac­knowledged a Recognisance of 200. l. in the Chancery to the Plain­tiff for payment of mony at a day to come, they failing, upon two [Page 90] Scire facias issued, and nibil returned, a Levari fac. issued to the She­riff of N. and afterwards a Capias ad satisfaciendum to the Defen­dant, the Sheriff who arrested W. the said W. being then in his Cu­stody upon an Indictment of Felony, who after upon his arraignment was found Guilty of the Felony, and afterwards he escaped, being let at large. The points were, First if a Capias did lie upon a Recogni­sance in Chancery, Second if it did not lie, yet if it was void or voidable: Third if the Conviction of Felony had discharged the Execution: Resolved, That if the Chancery had consideration of the Cause, and they do award an Erroneous Process or Misaward a Capias, by which the party is taken in Execution, yet it is a law­full Execution, and the Sheriff is chargeable with the Escape, and he is not to examine the Error of the Court in avoiding the Execu­tion. Second that the Conviction of the Felony was no discharge of the parties Execution, and it was adjudged against the Defen­dant.

412. Debt brought in Co. B. for an Amercement in a Court Baron, the Defendant would have wa [...]ed his Law; the Court doubt­ed of it, and some Presidents were shewed, as Trin. 6. Eliz. Tindal and Tuckers Case, that he might in such Case wage his Law. Quare.

The Queen, Bishop of Lincoln, and Skiffings Case. 413. Quare Imp. The Case was, the Countess of Kent had two Chaplains by Patent, a third had no Patent of Chaplainship, but he was first Retained, and took two Benefices by Dispensation: It was adjudged, he was Lawful Chaplain, for the Patent is not of necessity, but only in Case where he hath Cause to shew it, and he hath no cause to shew it, because her Retainer was good without a Patent.