Reports of diverse choice cases in law taken by those late and most judicious prothonotaries of the Common Pleas, Richard Brownlow & John Goldesborough ; with directions how to proceed in many intricate actions both reall and personall ... ; also a most perfect and exact table, shewing appositely the contents of the whole book.

THE SECOND PART OF BROWNLOWE'S REPORTS Containing divers excellent Cases and Resolutions in Law. (Book 2)

Lynche against Porter.

THE Plaintiffe in Prohibition suggests that hee * 1.1 inhabited in London, within the Diocesse of the Bishop of London, and was cyted to ap∣peare in the Court of the Arches, and was out of the Diocesse of London, without li∣cense of the Bishop of London, against the Statute of 23. Henry 8. And upon the first motion, the Court gave rule to the Defen∣dant to shew cause why the Prohibition should not be granted; and to heare the Civilians, and to conferre with them concerning the practise and expounding of the Statute of 23. H. 8. Chap. 9. And at the day appointed, three severall Civili∣ans came into the Court, and were heard according to the former Or∣der: and they say, that they use to cyte any Inhabitant that inhabits in London to appeare, and to make answer in the Arches originally; for the mischief that the Statute of 23. H. 8. intends to prevent, was, that those which inhabite in Dioces remote from London, should not be sued here without licence from the Ordinary; but this mischiefe was not in this case. And Doctor Martin saith, that so it was used by the space of 427. years before the making of the Statute, and then was complaint made thereof to the Pope, and he was answered, that it was the use that any man might be cyted to the Arches out of any Diocesse in England: and also that the Arch-Bishop may hold his

Consistory in any Diocesse within his Jurisdiction and Province: And also that the Arch-Bishop hath concurrent Jurisdiction in the Diocess of every Bishop as well as the Arch-Deacon. And then, if the suit be first begun in the Court of the Arch-Bishop, or the Bishop, or Arch-Deacon, it ought to be there determined where it had its beginning, and shall not be inhibited: And then it was objected by Cooke, chief Justice, that the Statute of 23. H. 8. was affirmed by Canon 94. And this sheweth the agreement of the Civilians with the said Sta∣tute. And to this Doctor Martin answered, that the said Canon was made in the vacancy of the Church of Canterbury, for the Sea of the Arch-Bishoprick was then void: and also he said, that the Arch-Bishop of Canterbury prescribes to hold plea of all things, and of all persons in England: And the Pope hath no power to make Ca∣nons against the Law, nor against any Custome or Prescription; and for this it shall be void, and that shall not bind the Arch-Bishop which is against the said prescription; and also it seems to the Civili∣ans, that the exposition of the said Statute being the Ecclesiasticall Statute appointed to them: And also it was said by them, that this detracts from the Arch-Bishops Jurisdiction against the custome of the Realm, and every Subject hath interest in that: And also that the Bishop takes notice, that they hold plea of the said cause, and took no exception, and that made a sufficient assent, and amounted to a license in Law, and so concluded that a prohibition ought not to be granted in this Case. Coke, cheife Justice saith, that the Mischeife which the Statute of 23. H. 8. was not only to prevent the mischeife that those which inhabited in places remote from London, should not be cyted to come to the Court of the Arch-Bishop, but also to give to them other priviledges, which by the Law they ought to have, that is, the Appeale that they loose by the beginning of the Suit in the Ar∣ches; for they may appeal from the Ordinary after the suit begun here to the Arch-Bishop; which benefit is lost if the suit be begun be∣fore the Arch-Bishop originally: and for that the Inhabitants in London are as well within the Mischeife as the body of the Act of 23. H. 8. And also that at the making of the said Canon, the Arch-Bi∣shop of Canterbury which late was, had the Jurisdiction of the same then committed unto him, he then being Bishop of London: So that upon the matter he was Arch-Bishop of Canterbury, so that the uni∣ty of the Sea of Canterbury shall not be avoidance of the said Canon; and he agreed that a Canon against Statute Law, or Common Law, or any Custome, shall not bind the Subject; and agreed, that so it had been adjudged in this Court. But he denyed that the exposition of any Statute belonged to the Ecclesiasticall Court; for the Statute is meer temporall, though it concern spirituall things, and it shall be expounded according to the Rules of the common Law, see 5.

Edw. 4. Keasors Case: And so concludes that this suit was against the Statute of 23. H. 8. For it ought to have its beginning in the Court of the Bishop of London. And this exposition of the Statute is made for the Defendant, 94. Canon, which was ex presly made a∣gainst the Court of Arches, and inflicts suspension (by the space of three moneths upon the Judges which offend against it) from their Office, and awarded that Prohibition shall be granted, and with that agreed Warburton and Foster, Justices: but Walmsley Justice was of contrary opinion, that is, that no Prohibition shall be granted by the Court of Common Pleas, but in case where the Suit is there hanging. And this was objected also by the Civilians, And the opinion of the Judges of the Kings Bench cited to prove it, but prohibition was granted that notwithstanding. And to the objection that the Arch-Bishop of Canterbury may have a consistory in the diocesse of every Bishop, this was denyed but only where he was the Popes Legate, and thenas Legate heshall have Jurisdiction of all the Diocesse of England, & it was agreed that there were three sorts of Legats. First, Legates, a La∣tere, and these were Cardinalls, which were sent, A Latere from the Pope. The second, A Legate born, and these were the Arch-Bi∣shops of Canterbury, Yorke, and Ments, &c. And these said Le∣gates may cite any man out of any Diocesse within their Provinciall; then there is a Legate given, and these have Authority by speciall com∣mission from the Pope.

Daringtons Case.

DAringtons Case, was cited before the high Commissioners * 1.2 of the King, for maintenance of the opinion of Brownisme, and for slandering of one Mr. Eland a Minister, and also of the Judges of the Common Law, and was sentenced, that for the first he should make his submission before the said Commissioners, and also for the second that he should make submission to Mr. Eland, and con∣fesse his offence to him, and pray that he will forgive him; and so for the third also, that he should make submission, and that he shall be committed to prison untill he perform the said sentence, and put in security that he will not here after make a Relaps in any of the said offences; and after he made submission for the first offence accor∣ding to the sentence, and upon complaint to this Court, Habeas Corpus was awarded to the Keeper of the Prison, in which he was to bring in his Body, with the cause of his taking and detaining, and he certified the causes aforesaid, but not the Submission; and these were the causes of the taking and detaining of the said Darington, and it was prayed by Serjeant Nicholls, that he might be delivered, and Coke cheife Justice said, that the Ordinary by the common

Law, nor by the Statute, De circumspecte aegatis, cannot imprison for any offence, though it be for Heresie, Schisme, or other erronious crime whatsoever, and then by the Statute of 5. R. 2. chapter 5. 2. Statute. It was awarded that Commissions should be directed to the Sheriffs and others, to apprehend such which should be certified by the Prelates to be Preachers of the Heresie; and the Favourers, Maintainers, and abettors, to keep them in strong Prison, untill they will justifie themselves by the Law of the holy Church: But this was repealed; by, 5 Ed. 6. 12. And 1 Eliz. 1. And also by the Statute of, 2 H. 4. 15. It was ordained that none shall preach or write any book contrary to the Catholique faith, or determination of holy Church, nor shall make any conventicles of such Sects and wicked Doctrines, nor shall favour such preachers: Every Ordinary may convent before him any person suspect of Heresie. An obstinate He∣retick shall be burned in an open place before the People, and this Statute was also repealed by, 25 H. 8. And 1 Eliz. 1. By expresse words, and then by the Statute of, 1. H. 7. 4. Power is given to all Arch-Bishops, Bishops, and other Ordinaries having Ecclesiasticall Jurisdictions, to commit Clarks, Preists, &c. To Ward and Prison for Adultery, Fornication, Incest, or any other fleshly Inconti∣nency, there to abide for such time as shall be thought to their dis∣cretions convenient for the quality and quantity of their Trespas, and these were all the Statutes, which give Authority to the Ordinary to imprison any man. And when the Statute of 1 Eliz. 1. Repealed the first two Statutes of 5 R. 2. 5. and 2 H. 4. 15. It was not the intent that these offences should be unpunished, but the Queen would not leave and trust the Bishop, which was but a man, and when he is made Bishop cannot be removed with such generall and uncontroulable Power, and Authority, and for that this power and Authority was transferred by the said Statute of 1 Eliz. 1. To high Commissioners, which the Queen might countermand at her pleasure, and appoint new, and so it was transferred from one to ma∣ny, and this Stature did not intend to give other Authority to high Commissioners to imprison any man, which the Ordinary himselfe had not before the making of the Statute of 1 El. 1. And it was not the intent of the makers of the said Statute and Act of 1 Eliz. To alter any Lawes, but to transfer the power of one to others, and it was resolved that for working upon holy dayes, the party shall not be punished before the high Commissioners, in Reimores Case, and it was also resolved in Symsones Case by the Lord Anderson cheife Ju∣stice of the Common place, and Glanvile, they then being Justices of Assise in the same place, that a Pursivant came with a Warrant of the high Commissioners to attach one by his Body for Adultery, in a lay mans house, and was s••ain, with great deliberation and conference had

with the other Judges, that that was no Murder, but Man-slaugh∣ter, for they could not attach the Body of any man, but ought to proceed by citation, and excommunication: But it was agreed that they might imprison for Brownisme, for that was Herezie, besides he maintaind that if the King do not govern his subjects as he ought, that his Subjects may and ought to depose him, and other such abhomina∣ble opinions, and further that he might fine for that, and he said that one Elyas Brown was hanged for that in the time of the last Queen, & for that, that it doth not appear by the return that Darington hath himself conformed, they could not deliver him, for they ought to give credit to the return, according to 9 H. 6. 46. be it true or not, and if it be not true, the party may have his action against the officer which doth it, and it was adjudged in Fullers Case in the Kings Bench that the high Commissioners may imprison and impose a fine for He∣resie and Schisme, and it was also resolved that Poligamy before the Statute of the 3. of King James, was punishable before the high Com∣missioners, for this was an heynous crime, otherwise the Statute would not have made it Felony, and he said that it was agreed in the time of the last Queen Elizabeth, that the high Commissi∣oners should not meddle with any thing but only those five, that is, Heresie, Schisme, Poligamy, Incest, and Recusancy, and with no others, and it was moved that a Writ, De causione admit∣tenda, lieth, for that they would not allow of the submissions. And the Justices would consider of that, and the Prisoner was remanded, and it was adjourned.

And at an other day it was moved by Nicholls Sergeant, that the high Commissioners supposed, for that that the Statute of 5. El. gives authority to the Queen, and to her heires and successors, to grant Commission to Visite, Reforme, Redresse, Order, Correct, and amend, all Errours, Heresies, Schismes, Abuses, Offences, Contempts, and Enormities whatsoever; and that the Commissioners may exe∣cute all the premises according to the Tenure and effect of the said Letters Patents, that by that they might fine and imprison at their pleasure. But Coke chiefe Justice said, that it appeares by the preamble of the said Statute, that after the Statute was in the ••5. yeare of the Raigne of King Henry the 8. by which the ancient Jurisdictions, Authorities superiorities, and Prehemenences, were united or restored to the Crown, and by meanes of the said Sta∣tute, his Subjects were continually kept in good order, and were d••sburthened of divers great and intollerable charges and exactions, before that time unlawfully taken and exacted, untill such time as the said Statute of 25. H. 8. was repealed by the Statute of 1. and 2. of Phillip and Mary, which said Statute of 1. and 2, of Phillip and Mary, should be repealed and void, by which it appeares, that

the Kings Subjects, were greviously burthened with grevious and intollerable charges and exactions, and yet in this time of usurped power of the Pope, doth not challenge that he might Com∣mit, or Imprison, or Fine in any case, but in the cases especially mentioned in the last Case aforesaid, and for that all the usurped power was annexed to the Imperiall Crown, the which he called the clause of annexing, the second was the clause of deputation, and this was the clause of the Statute, by which the Queen hath power to grant Commission to such persons being naturall borne Subjects, as her Majesty, her Heires, or Successors, shall thinke fit, to Exercise, Use, and Execute, under her Majesty, all manner of Jurisdictons, Privelidges, and Preheminences, in any wise touching or concerning any spirituall Jurisdiction in all her Majesties Do∣minions, and to Visit, Reforme, Redresse, Order, Correct, and amend all such Errors, Heresies, Schismes, Abuses, Offences, Contemps, and Enormities whatsoever, which by any manner spirituall or Ecclesiasticall power, authority, or Jurisdictions, can or may be lawfull Reformed, Ordered, Redressed, Corrected, Restrained: or amended, and the third he calleth the clause of execution, by which power and authority is given to the Com∣missioners to Exercise, Use, and execute all the premises according to the Tenure and effect of the said Letters Patents. And it seems it was not the intention of the Statute, to give any power to the Com∣missioners, which was not given to the Queen by this Statute, for the clause of deputation shall not be more ample then the clause of annextion, and then the clause of execution refers to the first too clauses, as it appears by the words of that (that is) to use and execute all the premises according to the said Letters Patents, and the premises are expounded by the first clauses, that is, Errors, Heresies, Schismes, &c. And the said Letters Patents, refer all Letters Patents before mentioned, where the persons are appointed to be naturall borne Subjects, and the materiall manner of Juris∣dictions, Priviledges, and Preheminences, Ecclesiasticall, Siprituall, and to Visit, Reforme, Order, Redresse, Correct, and Amend, all such Errors Heresies, &c. Which by any manner of spirituall or Ecclesiasticall, Power, Authority, or Jurisdiction, can or may lawfully be Reformed, Redressed, Ordered, Corrected, Restrained or Amended, &c. So that it cannot be intended that they may proceed in any other forme, but only according to the Ecclesiasti∣call power and Jurisdiction and no other, for otherwise they may Fine, Imprison, and ransome any man at their pleasures, which was never intended by the makers of the said Statutes. But only to trans∣fer the Power and Authority, which at that time was in the Bi∣shops, which then were Papistes to the high Comissioners; the

which the King may alter at his pleasure, and so he cannot the Bishops, for they are nor displaceable after their consecration.

Michaelmas, 8. Jacobi, 1610. in the Common Place.

A Man was cited before the High Commissioners for Poligamy, * 1.3 which was agreed to be a cause examinable & punishable there: and upon examination of the Cause, the Defendant was acquit, and yet he was censured to pay costs, though that he was acquitted of the Crime: and this Court was moved for a Prohibition, and it was de∣nyed; for they may hold plea of Principall, and then Prohibition shall not be granted for the accessary: and the Lord Coke said, that they have just cause of lawfulnesse of punishing the offence, though they have not just cause of the Deed, and peradventure it was very suspitious that he was guilty, and for that he hath only God for his revenger.

Parkers Case.

THree were cyted to appeare in the Court at Chester for Tenths, * 1.4 and treble damages demanded: and also in the Libell it is sugge∣sted, that the Land is barren, and very unfruitfull, and Prohibition * 1.5 was awarded against those joyntly; and yet it was agreed, that they ought to count upon the Prohibition severally.

Penns Case.

PEnn Parson of Ryton in the County of Warwicke, sued for Tithes * 1.6 in the Ecclesiasticall Court before the Ordinary, and the Defen∣dant here pleads that the same Parson was presented upon a Symoni∣call contract, and for that his Presentation, Admission, and Instituti∣on were void, by the Statute of 31. Eliz. And the Symony was for that, that it was agreed between the said Parson and another man, that was Brother to the Bishop of Lichfield and Coventry, who was Patron of the same Church; That if he should procure three severall grants of three severall next avoydances, to them severally granted, to surrender their said severall grants, and procure the said Bishop to present him when the Church became void (that being then full of an old Parson being deadly sick) that he would make to him a lease of parcell of the Tithes of his Rectory: And the brother of the said Bi∣shop procured the said Grantees to surrender their severall grants ac∣cordingly (the Church being then full.) And also after when the Church became void, he procured the said Bishop to present him ac∣cording to the first contract, and then the said Penn made a lease to

him of the Tenths, and after sued others of his neighbours in the spirituall Court for tithes, who pleaded the said Symoniacall con∣tract, and here Nicholls Serjeant suggested, that the Judges Ec∣clesiasticall would not allow of this Plea there, but the Court would not give credit to this suggestion, but said, that if the Ecclesiasti∣call Court make exposition of the Statute of, 31 H. 8. Against the intent of it, that then they would grant a Prohibition, or if they should in verity deny to allow of this Plea, and for that advised him that his Clyent might offer this Plea another time to them, and if they deny∣ed to grant that, they would grant a Prohibition.

Hurrey against Boyer.

IN Prohibition awarded in the spirituall Court for stay of a Suit * 1.7 there for tithes of Lands which were the possessions of the Hospital of S. Johns of Jerusalem, upon suggestion that the Prior of the said dissolved house of S. Johns had this priviledge from Rome which was by diverse Councells and Canons, that is, that the Lands of their Predecessors which by their own hands and costs they did till, they were tied to pay no tithes, and then by the Statute of 31 H. 8. chap. 18. Of dissolutions which was pleaded, but agreed that this Hospitall was not dissolved by this Act but by a speciall act made, 32. H. 8. chapter 24. By which their Corporation and Order was dissolved, and their possessions given to the King, with all the Priviledges and Im∣munities belonging to that, and the King granted that to the Plain∣tiff in the prohibition, and if he should hold them discharged of pay∣ment of Tithes, was the question; it was urged by Harris Serjeant that this Immunity was annexed to the corporation of the Prior and his Brethren of the said Hospitall, and that that was determined by the dissolution of the said Hospitall, and doth not come to the King, and he saith, that so it hath been adjudged in the Kings Bench, against the Booke of 10. Eliz. Dyer 277. 60. 2. Coke the Bishop of Winchesters Case 14. B. And the Arch-Bishop of Canterburies Case, 47. B. And 18. Eliz. Dyer 349. 16. And he said, that it was not given to the King by the Statute of, 31 H. 8. of dissolutions, for that was gi∣ven by act of parliament, and this was not intended by the Statute of 31. H. 8. As it appears by the Arch-Bishop of Canterburies Case: Ni∣cholls Serjeant argued to the contrary: And he cited a Cannon made by the Councell of Mag. and another made by Innocent the third, In the year 1215. And diverse others, and also the Statute of, 2. Hen. 4. 4. And 7 Hen. 4. 6. And he said that the Pope had Authority amongst spirituall men, and might grant to them freedoms of speciall things; and he saith, that if Land be discharged of payment of Tithes by prescription of not tithing, and this Land came to the King, yet this priviledge remaines, and also he urged, that these priviledges are given to the King by the

Statute of, 31 H. 8. Of dissolutions, by which all Hospitalls, as well dissolved, lost, surrendred, granted, or, &c. To the King, as those hospitalls which should be dissolved, lost, &c. And by this the possessions, lands, &c. are given to the King in the same plite and case, as they were in the hands of the hospitallers them∣selves; and he affirmed the Booke of 10. Eliz. Dyer 277. 60. To be good Law, and the Archbishops of Canterburies case 2. Coke 47. b. and the Bishop of Winchesters case 44. b. and 18. Eliz. Dyer. 349. 16. and also the words of the Statute of 32. H. 8. 24. gives to the King, not only the mannors, houses, &c. but also all Liberties, Franchises, and Priviledges, of what natures, names, or qualities soever they be, appertaining or belonging to the said Religi∣on or the Professors thereof, by which he intends that this freedome to be discharged of tythes, and so concludes that the Prohibi∣tion shall stand, see the rest after, Easter 9. Jacobi.

Forde versus pomroy.

UPon a Prohibition the case was this. An unmaried woman * 1.8 being proprietor of a Parsonage, tooke to a Husband, a Parish∣oner within the Parish, set forth and devided his tythes, and those immeadiatly tooke backe, and the Husband alone sued for the treble value, according to the Statute of the 2. Ed. 6. And two points were moved. First, if that were a setting forth within the Statute, and by the Court that it was not, and so hath been ad∣judged * 1.9 in 43. and 45. of Eliz. and 1. Jacobi, If the Husband may sue for the treble value without naming his Wife, and to that the Court would be advised, for though, that the Husband may sue alone where a thing is personall, for which he sueth, as the bookes of 4. Ed. 4. 31. 7. Ed. 4. 6. 15. Ed. 4. 5. and 11. are; yet where the Statute saith, that the Proprietor shall have suit for the not setting forth, &c. The Husband is not intended Proprietor as the Statute intends, but the Wife, and for that the Wife ought to joyne, see more.

Wagginer and Wood, Pasche 8. Jacobi, in the Kings bench.

WAgginer sued Wood in the Court of Requests, for that, that * 1.10 Wood had estopped his way, and in the Bill of complaint, there was no expresse of the place, the County, nor to what place the way did lead, and for that it was demurred to the Bill there. And notwithstanding they ordered the defendant Wood to answer, and the Atturney came and moved the Court for a Prohibition,

and it was granted to him, for they could not determine the right of a way.

Glover and Wendham.

HEndyn of Grayes Inne, moved the Court for a Prohibition, * 1.11 and the case was this. A man dwelling in a Parish, that is, Dale, hath land in his occupation in the Parish of Sale, the War∣dens of the Church of the Parish of Sale, and other the Parish∣oners there make a Tax, for the reparation of the Church, for Church ornaments, and for Sextons wages, amounting to the sum of 23 l. And the Tax of the Church being deducted, commeth but to 3 l. only. And now the forreigner which dwells in Dale, is sued in the Court Christian, by the wardens of the Church of Sale, for his part of the Tax; and he praies Prohibition: and Hendyn saith he well agreed the case of Jefferies 5. Coke, that he should be charged if this Tax had been for the reparation of the Church only: for this is in nature reall. But when that is joyned with other things, which are in nature personall; as ornaments of the Church, or Sextons wages, with which as it seems he is not chargable, then Prohibition lies for all; Flemming cheife Justice: and Williams Justice, thought fit that he should not have a Prohibition: for as well the reparations of the Church as the ornaments of that, are meerely spirituall, with which this Court hath nothing to do, and: Flemming said, that such Tax is not any charge issuing out of Land as a rent, but every person is taxed according to the value of the land, but Yelverton and Fenner to the contrary, that a Prohibition did lye; for the same diversity which hath been conceived at the Barr; and also they said that he which dwells in another Parish doth not intend to have be∣nefit by the ornaments of the Church, or for the Sextons wages, and for that it was agreed by all, by the cheif Justice; Wil∣liams, and the others, that if Tax be made for the reparation of Seates of the Church, that a forrainer shall not be taxed for that, because he hath no benefit by them in particuler, and the Court would advise.

Michaelmas, 8. Jacobi, in banco Regis.

HEnry Yelverton moved the Court for a Prohibition to the Admi∣ralty * 1.12 Court: and the case was, there was a bargain made be∣tween two Merchants in France; and for not performance of this bar∣gain, one libelled against the other in the Admiralty Court. And up∣on the Libell it appeared that the bargain was made in Marcellis in

France, and so not upon the deep Sea; and by consequence the Court of Admiralty had nothing to do with it, and Flemming cheife Justice would not grant Prohibition; for though the Admiralty Court hath nothing to doe with this matter, yet insomuch as this Court cannot hold plea of that (the contract being made in France) no Prohibi∣tion; but Yelverton and Williams, Justices, to the contrary; for the bargain may be supposed to be made at Marcellis in Kent, or Nor∣folke, or other County within England, and so tryable before us: and it was said, that there were many presidents to that purpose, and day * 1.13 given to search for them. Note, upon a motion for a Prohibition; that if a Parson contract with me by word, for keeping back my owne tithes for 3. or 4. years, this is a good bargain by way of Retayner; and if he sue me for my Tithes in the Ecclesiasticall Court, I shall have a Prohibition upon this Composition. But if he grant to me the Tithes of another, though it be but for a yeare, this is not good, un∣lesse it be by Deed, see afterwards.

Westons Case.

A Merchant hath a Ship taken by a Spaniard, being Enemy, and a moneth after an English Merchant with a Ship called little Ri∣chard, * 1.14 retakes it from the Spanyard, and the owner of the Ship sueth for that in the Admiralty Court. And Prohibition was granted, be∣cause the Ship was gained by Battaile of an Enemy, and neither the King nor the Admirall, nor the parties to whom the property was before shall have that, according to 7 Ed. 4. 14. See 2. and 3. Phillip and Mary, Dyer 128. b.

Michael. 8. Jacobi. 1610. in the Kings Bench.

A Man sues an Executor for a Legacy in the Spirituall Court, * 1.15 where the Executor becommeth bound by his deed obligatory to the party, to pay that at a certain day, befo••e which this suit was begun in the Spirituall Court; and the Executor moved for a Prohi∣bition, and it was granted, for the Legacy is extinct: but by Williams, if the Bond had been made to a stranger, the Legacy is not extinct, Fenner seemed that it was so.

Hillary, 1610. 8. Jacobi, in the Kings Bench. Robotham and Trevor.

THe Bishop of Landaff granted the Office of his Chancellor-ship * 1.16 to Doctor Trevor, and one Griffin, to be exercised by them, ei∣ther

joyntly or severally: and it was informed by Serjeant Nicols, that Dr. Trevor for 350. l. released all his right in the said Office to Griffin, so that Griffin was the sole Officer, & after died: and that after that the Bishop granted the same Office to one Robotham, being a Practiti∣oner in the Civil Law, for his life: And that Doctor Trevor surmising that he himselfe was the sole Officer by survivor-ship, made Doctor Lloyd his Substitute to execute the said Office for him, and for that, that he was disturbed by Robotham, the said Doctor Trevor being Substitute to the Judge of the-Arches, granted an Inhibition to inhi∣bite the said Robotham for the executing of the said Office, and the Libell contains, That one Robotham hindered and disturbed Doctor Lloyd, so that he could not execute the said Office. And against this proceeding in the Arches, a Prohibition was prayed, and day was gi∣ven to Doctor Trevor to shew cause for why it should not be gran∣ted: And they urged that the Office was spirituall, and for that the discussing of the Right of that appertaineth to the Ecclesiasticall Courts: But all the Judges agreed, That though the Office was Spiri∣tuall, to the exercising of that, yet to the Right it was Temporall, and shall be tryed at the Common Law, for the Party bath a Free-hold in this, see 4. and 5. of Phil. and Mary, Dyer, 152. 9. Hunts Case, for the Office of the Register in the Admiralty, and an Assize brought for that: and so the cheife Justice saith, which was adjudg∣ed in the Kings Bench, for the Office of the Register to the Bishop of Norwich, between Skinner and Mynga, which ought to be tryed at the Common Law. And so Blackleeches Case, as Warberton saith, in this Court for the Office of Chancellor to the Bishop of Gloucester, which was all one with the Principall case. And they said that the Office of Chancellor is within the statute of Edw. 6. for buying of Offices. And Warberton also cited the case of 22. H. 6. where action upon the case was maintained, for not maintaining of a Chaplain of the Chamber in the private Chappel of the Plaintiff very well, though it was spirituall, for the Plaintiff hath inheritance in that. But if it had been a parochial Church, otherwise it shall be for the infiniteness of the Suits, for then every Parishoner may have his action. And so in manner of Tything, the prescription is temporall, and this is the cause which shall be tryed at the Common Law, and Prohibition was granted according to the first Rule.

Hillary 8. Jacobi, in the Common Bench.

AN Attorney of the Kings Bench was sued in the Arches for a Le∣gacy, * 1.17 being Executor, as it seems, and it was urged that hee in∣habited

in the Diocess of Peterborough: And for that, that he was here remaining in London in the Tearm time, he was sued here, and up∣on that a Prohibition was prayed, and it was granted accordingly; For as the Lord Coke said, Though that he were remaining here, yet he was resident and dwelling within the Jurisdiction of the Bishop of Peterborough, and he said that if one Lawyer cometh and remaineth during the Tearm in an Inne of Court, or one Attorney in an Inne of Chancery, but dwelleth in the Country in another Diocesse, he shal not be sued in the Arches,

Master, Brothers, and Governors of Trinity House against Boreman.

THe Master, Brothers, and Governors of Trinity House sue in the * 1.18 Admiralty Court one Boreman, for that, that where Queen Eli∣zabeth by her Letters Patents under the great Seale of England, bear∣ing date the 36. yeare of her Reign, had granted to them the balla∣sting of all Ships within the Bridg of London and the Sea, and that no Ship shall take any ballast of any other but of them: And for that that the said Boreman hath received Ballast of another within the place aforesaid, hee was sued in the Admiralty Court. And upon that Prohibition was prayed; and day being given to hear both par∣ties, the Master of Trinity-house came into the Court, and the Judges demanded of him for what end the said Suit was there begun, if it were to have the Defendant in Prison, or to have recompence, or for other purpose. But he could not give any answer to that: & upon that the Judges saying, that the place being alleadged to be at Rat∣cliffe, is within the body of the County without question, and for that▪ for the place, shall be tryed at the common Law. Secondly, the Great Seale and Letters Patents of the King shall be expounded accor∣ding to the course of the common Law, and the Admiralty cannot punish by Imprisonment, pecuniary punishment, nor otherwise. Thirdly, the Letters Patents are void, for, for that one charge is raised upon the Subject for the private gain of this private house; for they would not ballast any Ship under 2 d. for every tun of Ballast: But if the Letters Patents have been made for publique good, perad∣venture they had been good, but a Prohibition was granted. Note that the said Boreman was a Dutch-man, and his two Ships were arre∣sted and stayed by the Admiralls Warrant out of the said Court, so that he was inforced to find sureties to answer to the said suit, before he could have his Ships at liberty.

Huntley against Cage.

HEnry Huntly was Plaintiff in the high commission Court against * 1.19 Mary Clifford Widdow Defendant, Huntley pretends that he was contracted to the Defendant, and upon that complaines to the high Court of Commissioners, and that she would marry her self to Cage, and upon that the Arch-Bishop then did grant a Warrant to a Pursivant to attach Cage, and the said Mary Clifford, and upon that they were arrested by force of the said Warrant, and upon that they were committed to Prison, and being imprisoned, an obligation of 2000 l. was taken by the said Commissioners of the said Mary Clif∣ford, by which she was bound to the King with condition, that she should not marry her self, nor contract to any other, untill the same suit was determined in the same Court, and also to appear before the Judge of the Arches within nine dayes, after notice of that gi∣ven.

And then being dwelling in H••lborn, after that Sir William Arm∣strodder obtained the said obligation of the King, pretending that that was forfeited; for that, that the said Mary Clifford had mar∣ried her self to Cage, before that the said suite was ended and deter∣mined. And upon that the said Mary Clifford was another time ci∣ted before the high Commissioners, and a suit was there promoted a∣gainst her (Ex officio) by Serle the Kings Proctor, also had the 4th part of all fines and forfeitures which grew to the King by reason of the Ecclesiasticall Courts; and then was articled against her; first, that she was marryed or contracted to Cage, & to that she refused to answer, for that, that it was the direct question upon which the forfei∣ture of the Bond depended, and then this Article was referred to some Doctors, who upon consideration seemed that the Article ought to be reformed, and upon that the Article was made that she lived single and unmarried in a house with the said Cage, which was as much as the first, for shee could not make any direct answer to that, without discovering whether the Bond were forfeited or not, and upon all this matter a Prohibition was prayed to the high commission Court, for the said Mary Clifford. And all the Justices, that is, Coke cheife Justice, Walmesley, Warbur∣ton and Foster agreed that the Obligation was void, for that it was ta∣ken by duresse of imprisonment, for they can not imprison any. Secondly that they ought not to examine any man upon his oath, to make him to betray himself, and to incur any penalty pecu••iary or corporall, and Foster cited a Judgment in the Exchequer, in Ralph Bowes Case, where an English Bill was exhibited against one for bringing into England, Cards without license, and one which had a

Monopoly upon that exhibited the said Bill, and upon that the De∣fendant demurred in Law upon that, and it was agreed that the De∣fendant shall not be compelled to answer to that upon his Oath, for that, that he had then incurred the danger of a penall Statute. Thirdly that they cannot take any obligation, by which a man shall be bound to appear in another Court, but only in the Court where the obligation is taken, no more then the Judges of this Court may take obligation of any man to appear before the Councell in the North: And Walmesley also seemed, that these high Commissioners ought to meddle only with things of the most high nature, and not of things which concern Matrimonie, and the ordinary Jurisdiction, and Coke said that the high Commissioners cannot meddle with any civill causes betwixt party and party, as keeping back tithes, or not payment of a Legacy, and lawfullnesse of Marriage, but the causes with which they intermeddle ought to be criminall, for otherwise they dissolve all ordinary Jurisdiction, and by their sentence every man shall be concluded, for he cannot appeal nor have any other re∣medy, and also he said that in civill causes, the high Commissioners, cannot send a Pursivant to arrest any man by his Body, for that was adjudged in Humptons Case, 42. Eliz. By Anderson and his companion, Judges in their circuit in the County of Northampton, with conference had with all the Judges of England, where the case was, a Pursivant having a warrant to arrest the body of one for In∣continency, and to have him before the high Commissioners, and a Constable came in aid of the said Pursivant in Execution of his war∣rant, and was slain, and was adjudged as before, that it was no Murder, and the reason was, for that, that the high Commissioners cannot award any warrant or processe to arrest the Body of any man, but if the warrant had been lawfully awarded, it was agreed that it should be murder, but as this case was, it was resolved to be but Man-slaughter, and also he said they cannot take in civill causes, where they have no Jurisdiction, but in criminall causes where they have Jurisdiction, it seems they may take obligation as the case re∣quires.

But he would not dispute that nor affirm nor disaffirm it, but as the principall case was, the obligation was made by Duresse, and so it may be avoyded, and also he seemed that they could not examine any lay man upon his Oath, But in causes Matrimoniall and Testamenta∣ry, and he said that so was the common Law before the making of that Statute of Articulis cleri. as it appears by a Canon made by Ottamon which was a Legate A Latere from the Pope in the 22 H. 3. and Canonicall, by which is recited, that where such were drawn in length, because that lay men were examined upon their Oathes, and therfore it was provided that lay men should be examined upon their

Oathes, although it did not concern causes Testamentary nor Matri∣moniall, the custome of England to the contrary thereof notwithstan∣ding, see Fitzherberts Natura brevium 41. a. Cromptons Justice of Peace fol. 59. b. Register 36, b. and Hyndes Case 18. Eliz. or the Margin in Scrogs case Dyer 175. b. So also Lamberts Justice of Peace, that those things are to be given in Charge by the Justice of Assise, and Coke saith that the Writ in the Register was framed before the Statute of Articuli cleri. And also he cited one Lees Case, who was committed for hearing of a Masse, and refused to be examined upon that upon his Oath, and had a prohibition, and so he agreed that a Prohibition should be granted, and upon that it was awarded ac∣cordingly.

Note that a Prohibition was granted to the high commission Court, for that, that they examined the lawfullnesse of a Marry∣age.

Symonds against Greene.

NOte one suit was before the high Commissioners, and 16. were brought by Pursivants before them, for that that they were * 1.20 present at a Clandestine marraige, and it was urged, that this was not to be punished, by any inferior Ordinary, in any of their consistories; for the contract was made in the Diocesse of the Bi∣shop of Worcester, and the marriage in the Diocesse of Glocester, and the Preist which married them, inhabited in the Diocesse of Oxford. And yet Prohibition was awarded, and the Justices were of the opinion, that every of them, for which the Pursivant was sent, might have an action of false imprisonment against him, for they cannot use any other processe but cytation only.

Admirall Court.

NOte that it was urged by Haugton, that the intent of the * 1.21 Statute of 13, R. 2. chapter 5. Was not to Inhibite the Admi∣rall Court, to hold Plea of any thing made beyond Sea, but only of things made within the Realme, which pertaines to the com∣mon Law, and is not in prejudice of the King or common Law, if he hold plea over the Sea; and that this was the intent of the Statute appeares by the preamble. But to this Coke saith, that the office of the Admirall was an ancient office, though it hath been otherwise conceived by some, for he hath seen Records and Libells and proceedings in the time of King Iohn, where he was called Marina Anglie, in the time of Ed. 3. And also he said that the words of the Statute are in the negative. That is, that the Admirall nor his Deputy, doe not meddle from henceforth of any thing done

within the Realme, but only or things done upon the Sea; and he said that it was adjudged in one Wrights case, that a thing made at Constanticople shall notbe tried in the Admiralty, for itought to be made upon the deep Sea, otherwise they shall hold no trial of that, see 48. or 50. of Ed. 3. 2 Ed. 2 F, obligation, and if a man be slaine or murthered beyond Sea, the offender shall not be punished in the Admiralty: Walmesly and Warburton Justices, agree, that if a thing be done beyond the Sea, and may be tried by the common law, there the admirall Court shall have no Jurisdiction. But if an obligation beares date beyond Sea, or be so locall that it cannot be tried by the common law there, if the Admirall hold Plea of that, Prohibition shall not be awarded, for it is not to the prejudice of the King, nor of the common law. But if the party can have his remedy by the common law, the common law shall be preferred. And if at the common law one matter comes in question upon a conveyance, or other Instrument made beyond Sea: accor∣ding to the course of the civill law, or other law of the Nations where it was made; the Judges ought to consult with the Ci∣vilians or others which are expert in the same law; and according to their information, give Judgement, though that it be made in such forme, that the common law cannot make any construction of it.

Michaelmas 8. Jacobi 1610. in the common Bench.

IF a Parson agree & contract withme, that I shall keep back my own * 1.22 tithes if that be made after that I have sown my Corn, and for the same year only, this shall be good: and if the Parson sue in the spirituall Court for tithes, I shall have a prohibition; but if it be for more years then one or before the Corn be sowed, this shall not be good, by Coke and Foster against Warburton, and Coke said it was adjudged in the Kings Bench in Parson Boothes Case, that a contract made with a parishioner for keeping back of his tithes for so many years as he shall be Parson, was not good, and so it was Wellowes Case here al∣so, but it was agreed by them all, that such a contract or agreement for the tithes of any other was void, but only of the party himself, which was party to agreement, and that ought to be made by way of keeping them back. See before, Easter 8. of James, See 20 H. 6. and the 21. H. 7. 21. b.

Pasche 1611. 9. Jacobi in the Common Bench.

THE question was upon a motion to have a Prohibition to the * 1.23 President and Councell of Wales, if that shall be granted with∣out action hanging. And Coke cheife Justice said, that the Record of the booke of 38. H. 6. agreed with the Report, and is witnesse,

John Prisott, and 2. Ed. 4. Is adjudged in the point; but yet he advised that there shall be information. Walmesley Justice said that this is no action. But Coke, Foster, and Warburton said, that it is an action fufficient, upon which a Prohibition shall be granted, and Coke said, that if they hold Plea of a thing, out of their Instructions; he would grant Prohibition without action hang∣ing. But if they proceed in erronious manner, in a thing which is within their Instructions, he would not grant Prohibition with∣out action hanging, or Information.

Sir William Chanceys Case.

SIr William Chancey, was cited before the Ordinary of the Diocesse of Peterbrough, and sentenced to do Pennance for Adultery; and this he commuted, and after that he lived in Adul∣tery * 1.24 with one in his house, and had two Bastards by her, and con∣tinued in Adultery with her for many yeares: and for that he was cited before the high Commissioners, and for that, that he would not allow his wife competent allimony; who had seperated himselfe from her company, in respect that he lived in Adultery, as aforesaid; and for that, that he refused to become bound to performe the order and the sentence of the high Commissioners, he was committed to the Fleete, and he praied Habeas Corpus for his Inlargement, and also a Prohibition to be directed to the high Commissioners; and it was moved by Nicholls that fining is not Justifiable by the high Commissioners no more then Imprison∣ment; he sayd that he was cited out of his Diocesse against the Statute of 23. H. 8. The which Statute is commanded to be put in execution by the Stat. of 1 El. Secondly, the offence that is Adul∣try, is not an Enormious-crime, and for that shall not be punished by the high Commissioners, as it appeares By the Statute of 1. El. But by the Ordinary. Thirdly, the high Commissioners by the Stat. of 1 El. ought to observe the same course and order in their proceedings, that the Ordinary used before the making of the Statute of 1. El. &c. That they could not fine nor Imprison. But he agreed that the Statute 1 H. 7 gives authority to the Ordinary to Imprison for Adultery, but then the person ought to be Ecclesiasticall, so that he agreed, if Sir William Chancey had been an Ecclesiasticall person, the Ordinary might Imprison him for Adultery, and for Allimony they ought to give no remedy if the Husband would inhabit together with his wife; as he sayd Sir William Chancey desired. But if the Husband refuse to dwell together with his wife, or thrust her out of his house; and will not suffer her to dwell with him, then the Ordinary may compell the Husband to allow allimony for his wife; but the high Commissioners ought not to proceed upon that, for this is

no erronious crime, for by that the party shall loose his benefit of Appeale, which he hath from the Ordinary, to the Metrapolitan, for here the party cannot appeale to any, nor hath any remedy. If the Queen will grant Commission to reneue, and so he conclu∣ded that, for that these matters appeare upon the returne of the Habeas Corpus to be the causes of his commitment, he praied that Sir William Chancey might be delivered out of Prison: and prohibition of staying the proceedings of the high Commissioners. Doderidge the Kings Serjeant for the case of Sir William Chancey argued that the returne consisted of two parts. That is, Adultery and Allimony, and to the manner of the proceedings he would not speake; for he said that the Court had ajudged, that the high Commissioners by the Statute of 1. Eliz. Ought not to proceed upon any offences, but those which are Enormious; but he intended that the offence at the first was not Enormious, being but Adultery and Allimony, yet when Sir William Chancey was sentenced for that before the Ordinary, and then commuted his pennance, and after that lived divers yeares in Adultery with two severall women, and had two Bastards; and then he became Incorrigible, and by consequence the offence is become Enormious, and is properly to be determined before the high Commissioners, and so praied he might be sent backe, and that no Prohibition should be granted; and at another day, Foster and Warburton said, that the high Commissioners ought not to meddle with these matters. Nor could not Fine nor Imprison for that: But Walmesley said that the Statute of 1. Eliz. Hath referred that to the dis∣cretion of the King, and the King by his Commission, hath given them power to medd••e with that; and also he seemed that this was an Enormious crime for this is, against an expresse commandment, that is. Thou shalt not commit Adultery, and he intends there can be no greater offence then that, and it seems to him that the word Enormious ought not to be so expounded as it is expounded by the other Judges, that is, an Exorbitant crime, but Enormious is where a thing is made without a rule or against Law, for in every action ••f trespasse the word is used (Et alia enormia ei intulit) and yet these are not intended Exorbitant offences, but other trespasses of the nature of them, which are first expressed perti∣culerly, and so the Statute hath been expounded for many yeares, and to the Imprisonment he said, that the high Commissioners have Imprisoned for the space of 20. yeares, and though that the Statute doth not give power to them to Imprison, yet this is contained within the Letters Patents, and the statute hath given power to the King to give to them what authority he pleaseth by his Letters Patents, and for that, that it hath been used for so long

a time he would not suddainly alter that, but gave day till the begin∣ning of the next Tearm for the argument of that. Coke cheif Justice said, that it was agreed by all that the Imprisonment was unlawfull: and if a Person be imprisoned which hath the Priviledge of this Court, this Court may deliver him without Bayle, for the King is the supream head by the Common Law, as to the coercive power, and that the Letters Patents of the King cannot give power to im∣prison, where they cannot imprison by the Common Law, and so it was adjudged in Sympsons Case, 42. Eliz, Which was cited be∣fore the high Commissioners for adultery with Fists Wife, and adjudged there that they cannot imprison for that; and he saith that an exposition with the time is the best, and for that see the ninth of Eliz. Dyer, and the 18 of Eliz. And also it appears by the Statute of 5. Eliz. that awards a (Capias excommunicatum) which could not be imprisoned before that, and upon this Sir William Chancey was bayled; and after by meditation of the Metrapolitan, he was re¦conciled to his wife, and this was the end of this Businesse.

Pasch 9. Jacobi 1611. in the common Bench. As yet Urrey against Bowyer.

HƲtton Serjeant argued for the Defendant, the question is, if lands which were parcell of the Possessions of the Hospitall of Saint Iohns of Jerusalem should be discharged of tythes by the statute of 31. H. 8. or 32. H. 8. in the hands of the Patentee, and he seemed that the priviledge was personall and annexed to persons of the said order; for it is confessed, that it came by rea∣son of the order of the Cestercians, as appeares by the Canon: The words of which are; that they should hold their lands, &c. Also it appeares by the statute of 2. H. 4. 4. That it is personall by which it was enacted, that the religious of the order of Cester∣cians, that had purchased Bills to be discharged, to pay tythes, should be in the state they were before; by which it appeares that it is annexed to their persons, and not to their lands, so that their Farmers cannot take benefit of that, Secondly, the priviledge was annexed to this order by canon, which is a thing spirituall, and hath no power to meddle with the lands of any man, but the proceeding of that ought to be by inhibition, or excommu∣nication, see 11. H. 4. 47. 19. H. 6. 3. This priviledge by the ca∣non which gives that, shall be taken strictly. And so is the opinion of their own expositors, see Panormitan Canon 37. So that there is an apparant difference between that and the lands, which came to the King by the statute of 31. H. 8. For by that the King is discharged of paiment of tythes, and so are his Paten∣tees. It seems to me, that the construction of the Cannon may

be in another course different from the rules of the common law as it was ajudged in Buntings case; that a woman might sue a Divorce without naming her Husband very well, and 11. H. 7. 9. The pleading of the sentence, or other act done in the spiritual Court, differs from the pleading of a temporall act done in tempo∣rall Courts, and 34 H. 6. 14. a, Administration was committed upon condition, that if the first Administrator did not come into Eng∣land, that he should have the Administration, which is against the Common Law, for there one authority countermands another: and 42 Ed. 3, 13. A Prior which hath such priviledge to be discharged of Tithes, makes a Feoffment, and his Feoffee payes Tithes to the Prior, and this was of Lands which were parcell of the possessions of Saint Johns of Jerusalem, and upon that he inferred that this privi∣ledge is personall, and if it be so; it is determined by dissolution of the order as it is determined in, 21 H 7. 4. That all Parsonages im∣propriate to them, by the dissolutions are become prsentable and so of these which were annexed to the Templers, for these shall not be transferred to Saint Johns, though that the Lands are 3 Ed. 1. 11. By Herle accordingly Fitz. Natura Brevium 33 K. and, 35. H. 6. 56. Land given in Frankalmaine to Templers and after trans∣ferred to Hospitallers of Saint Johns, the priviledge of the Tenure is paid, and so shall it be in case of Tithes, being a personall priviledg that shall not be transferred to the King, and to the Statute of 32. H. 8. The generall words of that do not extend to discharge the Land of Tithes, though that the Statute makes mention of Tithes, if there be not a speciall provision by the Statute that the Lands shall be discharged, and this appears by the words of the Statute of, 31, H. 8. where the general words are as generall and beneficiall as the words of this Statute, and yet there is aspeciall provision for the dis∣charge of the payment of tithes, by which it appears that the generall words donot discharge that, and so the generall words of 1 Ed. 6. are as larg and beneficiall as the generall words of the Statute of 31 H. 8. And yet this shall not discharge the Land of payment of Tithes, and this compared to the Case of the Marquesse of Winchester, of a writ of Er∣rour, that, that shall not be transferred to the King by Attainder of Land in taile for treason by the Statute of 26 H. 8. or 33 H. 8. And so of rights of action; and so it was adjudged in the time of H. 8. that if the founder of an Abby which hath a Corrody be attaint of Treason, the King shall not have the Corrody; and he agreed that the Hospitall of Saint Johns of Jerusalem is a house of Religion for this is agreed by Act of Parliament, and the word Religion men∣tioned in the Statute more then seventeen times, and also it seems to him that the Statute of 31 H. 8 shall not extend to that, for this gives and establishes Lands which come by grant, surrender, &c.

And that shall not be intended those which come by Act of Parlia∣ment, no more then the statute of 13 Eliz. extends to Bishops, 1. and 2. Phillip and Mary, Dyer, 109. 38. The statute of Westminster the 2. chap. 41. Which gives (Contra formam collationis) to a com∣mon person, founder of an Abby, Priory, Hospital, or other house of re∣ligion, without speaking expresly of a Bishop; and yet it seems that this extends to an alienation made in Fee simple or Fee taile by the Bi∣shop, 46 Ed. 3. Forfeiture 18. But it is resolved in the Bishop of Canterburies Case, 2 Coke 46, that the statute of 31 H. 8. shall not extend to these lands which come to the K. by the statute of 1 Ed. 6. to make them exempt from paying of Tithes, and to the Case in 10. Eliz. that is but an opinion conceived, and that the Prior hath this priviledge from Rome, and that the Farmer shall pay Tithes, and the question was in the Chancery; and upon consideration of the sta∣tute of, 31 H. 8. It seems that the Patentee himself shall be dischar∣ged (as long as by his own hands he tills it) and the statute of, 32. H. 8. Upon which the state of the question truly consists, was not considered, and also it was not there judicially in question. And to the case of Spurling against Graves in Prohibition, consulta∣tion was granted, for that, that the statute was mistaken, and so the award was upon the form of the pleading only, and not upon the matter, and so he concluded, and prays consultation, Houghton Ser∣jeant * 1.25 to the contrary, and he agreed that it is a personall priviledg: and if the Order of St. Johns had been dissolved by death, that then the priviledg shall be determined, and this appears by the Stat. of 2. H. 4. 4. before cyted: and also the case of 10. Eliz. Dyer, 277. 60. did doubt of that: but he relyed upon the manner & words of plea∣ding; that is, that Hospitallers are not held to pay Tithes, & it is as a reall composition made betwixt the Lord and another Spirituall per∣son, of which the Tenants shall take advantage, as it is resolved in the Bishop of Winchesters case. Also as if a man grant a Rent charge, if the Grantee dye without Heir, the grant is determined: But if the Grantee grant that over, and after dyes without Heir, yet the Rent continues, 27. H. 8. Or if Tenant in tayl grant Rent in fee, and dies, the grant is void. But if he after suffers a recovery, or makes a Feof∣ment, the Rent continues good till the Estate taile be recontinued, as it is resolved in Capels case. So here the order of Templers hath been determined by death, the priviledg hath been determined, but inso∣much that the Land was transferred by Parliament to the King, this continues. Also the words of the Statute of 32. H. 8. are apt, not only to transfer all the Interest which the Pryor had in his Lands, but also his Priviledges and Immunities to the King; and he agreed, it is not material if the words Tythes are mentioned in the Statute or not. But the word upon which he relyes, and which comprehends this

case, is the word Priviledg, which takes away the Law; for where the Law binds them to pay Tithes, the priviledg discharges them: And the words of the Statute are taken in the most large extent, that is, all Mannors, &c. Priviledges, Immunities, &c. of what nature, &c. be they Ecclesiasticall, or Temporall, which appertain and be∣long, &c. by or in the right of their Religion; but the Priviledges and Immunities they have in the right of their Religion, and these the Statute of 32. H. 8. gives to the King, and there is no cause that they should surmount, or that the Statute should give to them more favour then the former Statute hath given to those religious houses which were dissolved by the Statute of 31. Eliz. For the Hospitallers of S. Johns were favourers and maintainers of the Popes Jurisdictions as well as the others, as it appears by the Statute of 32. H. 8. Also the words of 32. H. 8. hath only the words of the King and his Successors, and doth not speak of his Assigns, which words are expressed in the Statute of 32. H. 8 But it is provided by 32. H. 8. that the King cannot use at his will and pleasure, which amounts to so much. Also the Statute of 31. H. 8. extends to all Religious houses by expresse words: and it shall not be intended, that the in∣tent of the makers of the statute was to omit that which were to be of the Order of S. Johns of Jerusalem, when the mischeif was in equal degree. And it hath been agreed that they are religious persons, and that they were under the obedience of the Pope, for so they are de∣scribed in the statute of 17. R. 2. by which the possessions of the Templers was transferred to them, so that on the matter they are religious, which shall not be intended so largely, as every Christi∣an may be said religious, but Secular, and Regular, which vow O∣bedience, Chastity, and Poverty; and for the proof of this, he cyted a president. Also it seems to him that the Statute of 30. H. 8. ex∣tends to those Lands which come to the King by the statute of 32. H. 8. And it is not like to the Arch-Bishop of Canterburies case, 2 Coke, 47. upon the statute of 1. Ed. 6. For that Statute gives the Lands to the King for other causes, and not for the same causes which are contained in the Statute of 31. H. 8. But the Statute of 32. H. 8. is for the same cause, and with the same respect to Religion. But if these Lands have come to the King by Exchange, or by Attainder, then they shall not be intended to be within the Statute of 31. H. 8. But if another Statute be made in 32. H. 8. by which all Religious houses have been given to the King, this shall be intended within the Statute of 31. H. 8. And the Judges before whom the cause depen∣ded judicially, ought not to be ignorant of that, and so he prayed that a Prohibition might be. Shirley Serjeant for the Defendant, at another day in Trinity Tearm 9. Jacobi, argued, that the question * 1.26 only depended upon the Statute of 32. H. 8. upon which the Pro∣hibition

is founded with the Statute of 31. H. 8. by which the Lands of Monasteries are given to the King, do not extend to those Lands which are given after by Parliament. But he intented that the Con∣stitution which discharges the Templers of the payment of Tithes is spirituall, and extends only to spirituall persons which may prescribe in not tything; see 38. Ed. 3. 6. 2 of Coke, the Bishop of Winche∣sters Case, 44. Also he intended when an appropriation was made to the Templers, that this is determined by dissolution of their Order. So upon the Statute of H. 5. of Priors Aliens, which have Impropri∣ations, or which have Rent issuing out of them; and after the Impro∣priation is dissolved, the Rent is gone, for the Impropriation is dissol∣ved. Also he took exception to the pleading, for that, that it is only a branch of the Statute of 32. H. 8. And then by vertue of the pre∣mises he was seised, which is not good: and so hee concluded, that it was a good cause of demurrer upon the Prohibition, and prayed con∣sultation. Barker Serjeant for the Plaintiff seems the contrary, and * 1.27 yet he agreed, that he could not take benefit of the Statute of 31. H. 8. for that, that these Lands came to the King by another Statute, but he relyed upon the words of the 32. H. 8. which was made only for the dissolution of the Hospitall of St. Johns of Jerusalem, Tythes are as ancient as any thing that the Church hath, and before that any Law was written, for Abraham payed Tithes to Melchisedeck, but it doth not appeare that he paid the tenth part; but Tithes are due by the Judiciall Law of God, and the King hath power to appoint what quantity shall be paid. But at the beginning there were Sacrifices, Oblations, and Tithes And it was ordained by Edgar, King of this Realm, that Tithes should be given to the Mother Church. Al∣so Edmund, Ethelstone, William the Conquerour, and the Councell of Magans specially provided that Tithes should be paid, but did not appoint when they should be paid. But the first Law which appoin∣ted the quantity was made in the time of Edw. 1. and this ordained when they ought to pay the Tenth with the feare of God. And it was resolved in Fox and Cresbrooks case in the Commentaries, after severance they are temporall, and Action lyes against him which carries them away, as of Mortuary, as it is resolved, 10. H. 4. 1. 6. And before the Councell of Lateran, every one might pay his Tithes to what person he would, and then were paid to Monasteries as Ob∣lations: But of Tithes which are due to any by prescription, hee which payes them hath no such election, but ought to pay them to him which claims them by prescription, 14. H. 4. 17. If a Parson of a Parish claim Tithes in another Parish as portion of Tithes due by pre∣scription to his Rectory, he ought to shew the place specially. So if Nunns prescribe to have a portion of Tithes, they ought to shew the place, for it is a question if they are spirituall, or not; for their

office is only to pray in their house, 24. Ed. 3. So the book of Entries, if a man claim Tithes to his Pupil, he ought to shew in what place the Tithes lye, in the 17. Ed. 2. The order of the Templers was dissol∣ved, and their possessions annexed to St. Johns of Jerusalem: and they did not claim by any Bull of the Pope, nor other spirituall Ca∣non but by prescription, which is priviledg and private Common law, and this appears by the Statute of Westminster, 2 Chap. 47. That is, that they are conservators of his priviledges. Also he saith, that the Statute of 2. H. 4. discharges Farmers without speaking of Priviled∣ges. And the Statute of 7. H. 4. 6. useth the same words which are contained in the Stat. of 32. H. 8. That is, that none shall put in ex∣ecution any Buls, containing any priviledges to be discharged of pay∣ment of Tithes. And Mephams Canon in time of Ed. 1. saith, Let the custome be observed with the feare of God. And another Canon, That custome of not Tything, or of the manner of Tything, if they paid lesse then the tenth part, see Panormitan upon that; seek of the Case between Vesey and Weeks in the Exchequer, upon the Statute of 27. H. 8. for the dissolution of small Monasteries. Also the Lord Darcy in quo warranto, was discharged of purveyance by Patent granted by the King Edward 6. of such priviledges which such a one had, and by the same reason the King shall be discharged of Tythes by the Act of Parliament; also he remembred the Book of 10. Eliz. Dyer, 277. 60. to be resolved in the point: and also 18. Eliz. Dyer, the Parson of Pekerks case, 399. 16. upon the Statute of 31. H. 8. and so conclu∣ded, and prayed judgment for the Plaintiffe, and that the Prohibition should stand, and it was adjourned.

Trinity 9. Jacobi, Priddle against Napper.

UPon a speciall verdict the cause was, The Prior of Mountague was seised of an Advowson, and of divers acres of Land, and the 20. of H. 8. the King licensed him to appropriate that; and 21. H. 8. the Bishop which was Ordinary assented, and after that, the Church became void, that the Prior might hold it appropriate; and 27. H. 8. the Incumbent dyed, so that the Appropriation took ef∣fect, and was united to the possession of the Rectory Appropriate, and also of the Land out of which Tythes were due to the said Prior, in respect of the said Rectory, and then the Priory is dissolved, and the Impropriation and the Lands also given to the King, by the Statute of 31. H. 8. which granted the Impropriation to one, and the Lands to another. And if the Patentee of the Land shall hold it discharged of the payment of Tythes, in respect of that unity, was the question: And Harris, Serjeant for the Defendant, in the Prohi∣bition, that the unity ought to be perpetuall and lawfull, as it was ad∣judged

between Knightley and Spencer, 2 Coke, 47. a. cyted in the Arch-Bishop of Canterburies case; and for that unity by, or by lease for years, or for two or three years, as in the case at the Barre, shall not be sufficient to make discharge of the payment of Tithes: and so it was adjudged, Pasche 40. Eliz. Rot. 454. between Chyld and Knightley, that is, that the unity of the possession ought to be of time, that the memory of man doth not run to the contrary. And in the argument of this Case it was said by Popham cheif Justice, that if no Tithes were paid after the Statute, that then it shall be intended, that no Tithes were paid before the Statute, and so he concluded, and prayed Consulation, see 2 Coke 48. a. The Arch-bishop of Can∣terbury for the reason by which unity of possession is discharged of payment of Tithes, that is, for that, that some houses of Religion were discharged by Buls of the Pope, and many were founded before the Councell of Lateran: and for that it shall be infinite, and in a manner impossible to find by any searches, the means by which they are discharged; the unity is no discharge in respect of it selfe, for the reasons aforesaid, and none may know if Tithes were paid or not be∣fore the union: And if Tithes be not paid in time of memory by a house of Religion, and they lease of that for years, and receive Tiths, then the lease expi••es two yeares before the Dissolution of the same house, the King shall not be discharged of the payment af Tithes by the Statute of 31. H. 8. by Coke and Walmesley, against Warburton and Foster.

Dorwood against Brikinden.

UPon the Statute of 5 Ed. 3. a man libelled in the Spiritual Court for Wood cut, and a Consultation was granted; Yet the Defen∣dant in the Court Christian might have a new Prohibition, if it ap∣peared the first Consultation was not duly granted: So if a man libell for Tithes for divers years, and Prohibition is granted for part of the years, and after that a Consultation is awarded, yet the Plaintiffe may have a new Prohibition for the residue of the time, notwithstan∣ding the Statute of 50 Ed. 3. and that it be upon one selfe same libel.

Admirall Court.

NOte that the Admirall cannot imprison for any offence; but if the Court hath Jurisdiction of the Originall cause, and sentence * 1.28 is there given, this sentence may be executed upon the Land, 19. H. 6. But no Ordinary may meddle out of his own Diocesse, 8. H. 6. 3. 2. H. 4. The Parson of Salt-ashes Case; That this Court tooke notice of Jurisdiction of all Ecclesiasticall Courts, and Ordinaries, for they

write unto them for tryall of Bastardy and Matrimony. And there are 3. Legates, First a born Legate, as the Arch-bishop of Canterbu∣ry and Yorke, Remes, and Pylazam. Second, a Latere, as all Cardi∣nalls. The third a Lagate given, as those which have their Authority, by commission, and Lynwood Provinc. saith, that the Arch-Bishop of Canterbury, as Arch-Bishop, cannot meddle out of his Diocesse of Canterbury and his Peculiars, but as a Legate borne, which is in respect of his Office, he hath prerogative, and if a man inhabit in one Diocesse, and ought to pay tithes to another which inhabits in another Diocesse, there the Ordinary ought to prefer the suit to the Metrapolitan, but seek what Ordinary shall transfer it.

Trinity 9. Jacobi 1610. in the Common Bench. Jones against Boyer.

HEnry Jones Parson of Bishopton sued Bowen the Executor of Holland, the last Incumbent in the Arches for Dilapidations, up∣on which a Prohibition was prayed upon the statute of, 23. H. 8. for that, that it was sued out of his Diocesse, which was Saint Da∣vids, but it appears that the Vicar generall of the same Ordinary hath made generall request to the Metropolitan, to determine that without shewing any cause speciall, and if the inferiour Ordinary may transmit any cause, but only for the causes mentioned in the statute of, 23. H. 8. And if the causes ought to be expressed in the Instrument, was the question: note that the generall words of the statute of, 23 H. 8. chap. 9. Rastall Citation 2. are afterwards ma∣ny particulars, or in case that any Bishop or any inferiour Judge, ha∣ving under him Jurisdiction in his own right and title, or by commissi∣on, make request or instance to the Arch-Bishop, Bishop, or other inferiour Ordinary or Judge, to take, treat, examine, or deter∣mine the matter before him or his substitute. And that to be done in case only where the Law civill or Canon doth affirm execution of such request or instance of Jurisdiction, to be lawfull or tollerable, and for the better discussing of this question, the Judges had appoin∣ted to heare two Doctors of the Civill Law, which at this day at∣tended the Court; the first Doctor Martin said, that these generall words have reference to the Executor, and not to the maker of the request, and this request may be made for all causes, but ought to be made to him, which hath concurrent or immediate Jurisdiction to which appeal may be made, and that the Arch-Bishop hath ordi∣nary Jurisdiction in all the diocesse of his Province; and this is the cause that he may visit, but this Jurisdiction is bound and tied up to the Ordinary, and when he will leave that at large, then the Arch-Bishop may proceed, as he is Arch-Bishop, and the cause of request need not to be contained in the Instrument, for when the power

which was bound up is unbound and at large, then he may proceed: Doctor Talbot, that the request is referred to three, to the Bishop, Dean, and Arch-Deacon. And the persons to whom the request is to be made are three: The Arch-Bishop, two Bishops, three, or superi∣our Judg, and the Bishop and his Commissary are all one, and re∣quest made by the Commissary shall be as good, as request made by the Bishop himselfe. Also that the President may transmit, and make request to the Emperour, as it appeares in the Booke of Justinian of the Lawes, 2. Book. So Baldus in reference made of inferiour Magi∣strates to Superiour, doth defend, that the Arch-Bishop is Judge of the whole Province, yet is bound. So Speculata in his Title of Rela∣tions, of which relation shall be made: So in the Councell of Anti∣oche, that the Metropolitan is mediate Judge in the first part of the Canon, and for that relation shall be made to him. Passonilis de officio, &c. disputes: If the Arch-Bishop may have consistory in the Diocess of the Ordinary. Hostiensis, that the Ordinary may trans∣mit a cause, though the parties be unwilling. Panormitan in capite pa∣storalis, 8. Question 6. decretalls of the Canon Law. Philippus Fran∣cus upon the decretalls of the Canon Law, That the Arch-bishop can∣not meddle in the Diocess of any Ordinary without his assent. Do∣minicans upon the same Decretall: And so he concludes; that when the Ordinary makes a request to the Arch-bishop, hee may meddle without the assent of the parties, and the stranger, when the parties assent. And they agreed, that generally the Arch-Deacon ought to transfer to the Bishop, and so the Bishop to the Arch-bishop: But they agreed also that here in England it was prescription and usage, that every Arch-Deacon hath used to appeale immediately to the Arch-Bishop, and so ought the Request within this statute to be made accordingly. Also they agreed, that if a man inhabite in one Diocess, he hath cause to sue for Tithes in the same Diocess in which he inhabits: and in another Diocess, there he ought to sue in the Diocess where the Defendant did inhabite, and not where the Tithes are payable, nor where the Plaintiff inhabits, and the Principall case was ordered accordingly.

Michaelmas, 1611. 9. Jacobi, in the Common Bench. Enby, versus Walcott.

THe Defendant was sued before the Ordinary in the County of Lincoln for defamation. And the Suit was begun before the last generall pardon, ex officio, and the Costs taxed after the time limited by the pardon: and Pr••hibition was granted, in so much that all things promoted, ex officio, are discharged by the pardon; and in so much as the principall was pardoned, the Costs being but as accesso∣ry shall be also pardoned, notwithstanding that they were taxed af∣ter the pardon.

Powis against Bowen.

UPon consideration had of Instructions given to the President and Councell of Wales, it was resolved by all the Justices of this Court, that the Councell there ought not to proceed upon English Bill, which conteins title. But the forme of that ought to be onely, that the Plaintiff was in possession for three years: and that the De∣fendants, which ought to be alwayes more then one, riotously, and with force have entred upon him, and so ought to be restored to his possession. And in so much that the Bill containes Title in this case, and that the Defendants have entered upon him, and disseised him in forme of Assise, and doth not say riotously and with force, Prohibiti∣on was granted.

Butler against Thayer.

THe Lord Admirall granted a Commission under the Seale of the Admirall Court to Thayer, for measuring of all the Corne which shall be transported from one Town or place to another within the Creeks, which are within the first Bridges, and to have so much for every bushell measuring, and granted, that if any resisted, to arrest them, and commit them till they had found sureties to appeare in the Admirall Court. And at Milton, and Raineham in Kent, Thayer en∣devoured to put his Commission in execution, and Butler resisted him, and was for that arrested, and sued in the Admirall Court, and for stay of that prayed Prohibition, & it was granted, in so much that the Admirall hath not power to meddle with the first Bridges for civill causes, but only for Maymes and death of men: but for cau∣ses made upon the high Sea, where the Marriners have the better knowledg in the Common Law, he cannot try that: See the time of Edw. 1. Avowry, 192. 8. Ed. 2. 45. Ed. 3. Stamford, 51. 7. R. 2. Statham Trespass.

Sir John Watts.

CErtain goods of a Subjects of the King of Spains, were forfeited * 1.29 upon the high Sea, and after were brought here into England, & there sold to Sir John Wats: and the goods were attached in the hands of Sir John Watts by Process out of the Admiralty, and there a li∣bell was exhibited against the goods remaining in the hands of Sir John Watts, and Sir John Watts was not made party to the Suit. And Sir John Watts prayed a Prohibition▪ in so much that-they bought them in open Market: And by this Suit in the Admirall Court, the property will be drawn in question there, where the Suite was prose∣cuted in the name of Awlenso de Valasco the Spanish Ambassador, Le∣gier here. And Prohibition was granted.

Michael. 1611. 9. Jacobi, in the Common Bench. Jennings against Audley.

PRohibition was prayed to the Admirall, and the Libell shewed * 1.30 to the Court, which contained the Contract, was made in the straits of Mallico, within the Jurisdiction of the Admiralty, and doth not say upon the deep Sea. And it was agreed, that in all eases, where the Defendant admits the Jurisdiction of the Admirall Court, by pleading there, Prohibition shall not be granted, if it do not ap∣pear by the Lybell, that the act was made out of their Jurisdiction; and that, though that Sentence was given, yet if that appears with∣in the Libell, Prohibition shall be granted.

Note that a man was sued before the Ordinary in the Diocesse of Norwich, for infamous words, and after sentence there given, he ap∣pealed to the Arches: and the first sentence being there affirmed, he appealed to the Delegates; and before that the proceedings were transmitted, Prohibition was granted by this Court, in so much that the offence was pardoned by generall pardon. But this not∣withstanding the Register transmitted the proceedings: And after for his fees due for that, hee exhibited a Bill in the Court of Requests, and Prohibition was prayed in this Court for to stay his proceedings there. And it was granted, in so much that the originall ground of the Suit, that is, the infamous words were pardoned by the gene∣rall pardon; and for this all the proceedings were erroneous, and their transmitting after. And afterwards the Prohibition received willingly; And for these causes Prohibition was granted to the Court of Requests.

Thomas Baxter against Thomas Hopes.

IN Prohibition the Plaintiff Suggests, that within such a Town was such a custome; that every Inhabitant which maintained a family, and dairy, for manuring his land, and maintenance of his family, have used of time out of memory, &c. to pay tythes of Corn, growing upon his Farm, in kind, and by reason thereof have used to be discharged of after crop, of the said land. And also that they have used to pay tythe milk, and tythe Calves in kind, and by reason thereof have been discharged of tythe of yong and barren Beastes, and the Plaintiff suggested further, that he occupied a Farm and maintained a family, and dairy, for the manurance of that, and maintenance of his family; and hath paied his tythe Corn, and milk, and Calves, in kinde: And for that ought

to be discharged of tythes for the after crop, and for yong and barren Beastes, and for the tenthes of which, suit was begun in the Court Christian, and upon demurrer joyned upon Prohibition, the custome was debated whether it were good or no, and it was moved first by Houghton Serjeant for the Defendant, that the custome was not good, insomuch that by that the Plaintiff was not to pay more, then by the Law he ought, for he ought to pay tythe Corne, and milk and Calves, in kind: And this is no more then the Law compells him to do, and this cannot be a consi∣deration to discharge him of other things. For all things which renue ought to pay tythes, of Common Right, as after pastute, and barren Cattell, and Corne, and milk. And all other things which renue; if it be not good custome to the contrary, which is grounded upon consideration; and then to consider how much consideration shall be valuable in other Cases, and what not: And to that it appeares in 9. Ed. 4. 18. and 19; in Trespasse upon the Statute of 5. Rich. 2. The Defendant pleads accord, that the Plaintiff entred into his land againe, and agreed that that was not barr, insomuch as agreement without satisfaction is not barr, and entry into lands, is no more then he might do without the agreement, and for that it is not good for default of conside∣ration; so in 12. H. 7. 15. a. in trespass for goods taken; the Defen∣dant pleads arbitrement, that is; for that that the Defendant, hath taken the goods of the Plaintiff, and that he should deliver them to the Plaintiff, in full satisfaction: And agreed that this is no good award, insomuch that this cannot be satisfaction, for that that the goods were the proper goods of the Plaintiff: And al∣though, that he hath his goods againe; yet he is not satisfied for the taking. But if the award had been, that the Defendant should redeliver his goods, and carry them to such a place certain, at his own costs and charges, then it had been good: See 45. Ed. 3. accordingly. So in an action upon the Case, upon an Assumpsit made in consideration that the Plaintiff hath payd due debt, is not good, for this is no consideration, and so in the principall Case the Prescription is not good, insomuch that he hath not suggested more or other consideration, which by the Law he ought to do: But he agreed that if he had suggested, that the Plaintiff, had plowed and manured the land, and disposed of the tythes of the Corn, for the benefit of the Parson, in other manner then the Law compelled him; then the first prescription had been good, and so he concluded, and praied Judgement for the Defendant: Hutton Serjeant for the Plaintiff, in the Prohibition seems the contrary, and that the Suggestion, and Prescription, and Custome, Contained in that are good: And to the Objection, that it is

no consideration, that the Custome may be founded; he intended, that this is a ground upon immunity subsequent to the Consi∣deration, as of things which are not tythable, as in the generall Case of things, which are for the maintenance of the family; for Plowing and Manuring of the land, shall not pay tythes, as in a suit for tythes for herbage, suggestion that they were depastured, by labouring Cattell, which Plowed and Manured the Land, of which the Parson had tythes, or small Wood, which are cut or imployed for the fencing of a Farm, or fuell spent in the Farme, shall not pay tythes; insomuch that without that, the Farme cannot be Manured nor the Famaly sustained. And so by consequence the Parson shall not have any tythe Corn, inso∣much that no Corn will grow without manuring; and also the Parson by those hath the more tyth Corn, and so he hath considera∣tion in that, for the better that the Farme is fenced and manured the more tythe the Parson shall have: So the Farmer may be dis∣charged of tythes, for Rakeings, insomuch that he Mowes and Cocks the tythes for the Parson at his own costs, and this is suf∣ficient consideration: And also he insisted upon the Statute of 2. Ed. 6. Which provides that tythes shall be payd in the same manner, as they were payd for 40. yeares before, and he cited one Jessopps case to be adjudged in Prohibition; Pasche 36. Eliz. Upon suit in Court Christian, for flocks, and locks of Wooll: And the Custome was alleaged, that the owner had woond the tythe for the Parson, and in consideration of that, ought to be discharged of tythes, of locks and flocks, if they be not made by Covin, to defraud the Parson; and these were demanded by the name of wooll dispersed, and 18. Eliz; it was adjudged, that tythes shall, not be made for Brick, and in Prohibition; the suggestion was grounded upon the generall immunity, and insomuch that it was made of land, for which no tythes are to be payd; insomuch that it doth not renue, that for this cause tythes ought not to be payd, for the Brick which is made of that, and so of Mynes, and so Lop∣pings, and Toppings, and bark of Trees shall pay no tythes: But are within the Statute of 40. Eliz. 5. of wood to be falne, as it is resolved in Soby and Molyns case in the Commentaries: And he agreed that for herbage the tenth gate, or proffit of that ought to be payd, if there be not a custome to the contrary; but in the Principall case he intended that▪ that was payd in the Corn, and in that the Parson hath recompence and consideration as be∣fore, and so he concludes and praies Judgment for the Plaintiff: Dod∣rigde Serjeant of the King argued that the Custome is not good, as it is here suggested, for the consideration is of some things which ought to pay tythes in kind, and so upon the matter is no

sideration at all, for he intended that tythes should be due by divine right, as due by the Manuring and Tillage of the oc∣cupier, in whose soever hands that the land commeth; if it be not in the hands of the Parson himselfe, 30 H. 8. 43. Dyer. 20. And for that a Parson shall have tythes against his own Feoffment, 43. Ed. 3 13 a. 1. Coke. Albanyes case, 111. a. 32 H. 8. B. Tythes the 17 accordingly, and unity of possession shall not extinguish them: And also he intended there are two manner of persons, which are discharged of paiment of tythes. One Spirituall, the other Temporall, the spirituall in respect of their Order, and the tempo∣rall in respect of Custome and Prescription, and also by grant, as it is agreed in the Arch-Bishop of Canterburies Case, 2. Coke; but this is in the case of a spirituall man before the Statute of, 32 H. 8. which was capable of them in taking, and that he might prescribe in not Tithing, but a lay man cannot be discharged but for satisfa∣ction and consideration, for he cannot prescribe in not Tithing, and for that in the case here the thing to be considered is, if it be suffici∣ent satisfaction and consideration, and to that he intended that the payment of a duty, that is Tyth Corn and Tyth Hay, cannot be satisfaction & consideration for another duty, and this was the Reason of Piggot & Hernes Case, that the Lord of a Mannor, in consideration of * 1.31 20. Nobles yearly paid to the Parson, prescribes to have the tithes of a Hamlet, and in consideration of that, the Lord himself and his Te∣nants, were discharged of payment of Tithes, but there the consi∣deration and satisfaction was the cause which made the custome good, see 2. Coke 45. a. And then he proceeded and examined the manner of the satisfaction in the principall case, which is, that the Plaintiff shall pay tyth Corne and Hay, and nothing for Milk and Calves, but by reason thereof shall be discharged, as if he should say, that because he payeth tythe Corne, therefore he shall pay no tithe Milk, and he intended that the nature of satisfaction is to give content to the party, as if the prescription had been, that the Plaintiff should pay so much Money, and in consideration of that, or that he shall make the tithe in Cocks, or rake it, or mow it at his owne charge, this is a good prescription, aed there are diverse pre∣sidents of that, but no president is of this forme, as the case here is; for money shall be intended the greater value, and more benefici∣all for the Parson, then his Tithes in kind, and Money is the value of every thing, and may give contentment to the party which receives it, & he cited Bookes of, 9. Ed. 4. 19. and 12 H. 7. 15. and 2•• H▪ 5. 2. a. To the same intent which were cited before by Haughton, that is, which agree in Arbitrement, and the Plaintiff entred into his own Land, or that the Defendant delivered to the Plaintiff, his own goods which the Defendant had taken from him, it is not good,

for it cannot give contentment to the party, otherwise it is, if it be that the Defendant shall carry them to another place and there shall deliver them, for it cannot be satisfaction and contentment to the party, and for that, that here the Plaintiff hath not made more then the Law compells him, and that it was his own duty, and for that the prescription wants consideration, it shall not be good, and also by reason thereof it can be no good discharge, for this cannot be satisfaction, but he said, it was adjudged Pasch 20 Jacobi between Hall and Aubery, that Money was a good consideration and satisfaction for tithes, and so he concluded and prayed judgment for the Defendant; note that this cause was adjudged Hillary 8. Jacobi upon solemn argument by all the Judges with one voice, that the Prescription was good.

Haughton Serjeant moved for a Prohibition, for that the Suit was begun in the Admirall Court upon Charter party made beyond Sea upon the Land, and Prohibition was granted, though it be for a thing made in Paris, or in another place beyond the sea, if it be not upon the Main Sea, but if the Defendant there admitts the Ju∣risdiction of the Court and suffers sentence, then the Court will not upon a bare surmise grant a Prohibition, after the admittance of the party himself; if it be not in a thing which appeareth within the Libell, that is, that the Act was not made within the Jurisdiction of the Sea, and to this difference all the Court a∣greed.

If a Court Baron divide a Debt of thirty pound in severall parcells * 1.32 under forty shillings, and so proceeds in severall Actions, Pro∣hibition shall be granted, see Fitzherberts Natura brevium, and 19 H. 6.

Hane was cited out of his Diocesse into the Arches, and he plea∣ded to the Libell, and sentence is given against him for costs, and after that Prohibition was granted, and upon that consultation was prayed, for that, that the Defendant was the party greeved, and ought to have pleaded the Statute, insomuch that the Statute was made for his benefit, but if it appears by the Libell that the Court of Arches need not to have Jurisdiction, then it seems that the Prohibition was well granted, as in Sir Henry Vinors Case, he began a suit in the high Commission Court, for the not serving of a Chappell, and the Court understanding that they had no Jurisdiction, remitted the cause to the Ordinary, and yet gave sentence against Sir Henry Vinor which was Plaintiff for Costs, and for that he prayed a prohi∣bition and it was granted to his Petition notwithstanding that he himself was the party, who begun the suit there, as it was re∣membred by Nicholls Serjeant.

A Woman sued in the spirituall Court for Defamation, and the

words were, That thou mayest be an honest woman but thou playest too much with a thing, &c. And Prohibition was prayed, insomuch that these words were not Actionable; for in Spellmans reports Pro∣hibition was granted, for that they proceeded there for calling a Minister Knave Preist, and also by these words, a white Cloake is more fitter then a black cloake for him, for action upon the case doth not lye for these words by any Law, but the Prohibition was not granted.

Pasch. 11. Jacobi Prohibition. Tey against Cox.

PRohibition was prayed, for that, that one was cited out of his Diocesse before the Arch-Bishop of Canterbury, as Keeper of the Spiritualties in time of the vacation of the Bishopp∣rick, and it was denyed; but if he had beene to appeare before him as Metrapolitan, otherwise it should have been, insomuch that this is against the Statute of 23. H. 8. And also for his own Canon, but in this case the Statute of, 23 H. 8. And also their own Ca∣non; but in this case the ArchBishop hath done as he ought, and for that the Prohibition was denyed, see 17 Ed. 2. Fitz. Na. Bre. 822. and 41 Assis.

The case was this, there was a custome that a Park hath paid two shillings a yeare, and the sholder of every Deere which was killed for tithes, and in consideration of that, had been time out of minde, &c. Discharged of Tithes, and now the Park is dis-parked, and it was moved by Harris Serjeant, that this dissolves the custome, for when part of the custome is dissolved by the party himself, this de∣termines the residue, for it is adjudged if the Land be discharged of tithes by reall Composition, then if he sue for tithes in the spiritu∣all Court, prohibition by the common Law was granted, without other suggestion, but only that he sued there for Lay Fee, and it was said that it was adjudged 5. Jacobi, that where it was a custome that so many of the bucks shall be paid for tithes in such a park yeerly, and after the park shall be disparked, yet that remaines discharged of Tithes, and the custome remaines, and Coke cheif Justice seemed that tithes are due by divine right, but not what part, for if the tenth part be due dy divine right, then all Customes are void.

Trinity, 11. Jacobi, 1612. in the common Bench.

NOte by the Statute of 50. Edw. 3. If a Consultation be once du∣ly granted, no new Prohibition shall be afterwards granted up∣on the said Libell. But if it be apparent matter that the first was not duely granted, then a new Prohibition may be granted by the whole Court, and with this agreed the book of Entries in the Title of Pro∣hibition: But this is to be intended to the Spirituall Judge; and it seems that the Admirall is out of this Statute, see 22. H. 7.

Bushes Case.

NOte that it was agreed in this Case, that if a Parsonage be im∣propriate, and the Vicaridge be endowed, and difference be between the Parson and the Vicar concerning the endowment, that shall be tryed by the Ordinary, for the persons and the cause also are spirituall: And there the Vicar sues the Parson for Tythes, and he suggests the manner of tything, and prays a Prohibition, and it was granted, and after upon solemn argument, Consultation was granted, in so much that the manner of tytheing did not come in question; but the Endowment of the Vicaridg only, for that is the Elder Brother, as the Lord Coke said, and this was cyted to be adjudged by Coke.

Prohibition. Agars Case.

AGar of Kingston upon the Thames was sued in the Ecclesiasticall Court for beating of his Wife, and for calling her Whore, and was sentenced by them to pay to his Wife three shillings a weeke for her Alimony, and divers Fynes were imposed upon him for not per∣forming of that, and also provided that hee should enter into a Re∣cognizance for performance of that, and a Prohibition was granted, and also a Habeas Corpus to deliver Agar out of Prison:

Michael. 8. Jacobi, Blackdens Case.

BLackden marryed one within age, and after disagreed, so that they might marry else-where; and the first Wife had Issue by o∣ther Husbands, and dyed, and Blackden was sued in the Ecclesiasti∣call Court by an Informer, supposing he had marryed a womon, li∣ving his other Wife. And Blackden proves there the disagreement, by which he had sentence for him against the Informer, and yet hee was taxed to give to the Informer twenty markes for costs, which hee refused to pay, and moved to have a Prohibition, which was granted.

For it was injustice to allow Costs to one which had vexed him with∣out cause, and when they had given sentence against the Informer.

Parkers Case, Michael. 8. Jacobi

PArker being a Parson of a Church, was deprived by the High Commissioners for Drunkenness, and moved for Prohibition, but it was not granted; and he was directed to have action for the Tythe, and upon that the validity of the Sentence shall be drawn in question.

Doctor Conways Case, Michael. 8. Jacobi.

COnway and his Wife were sued before the High Commissioners, that is to say, the Wife for Adultery with Sir Michael Blunt, and the Husband for connivency to that, as a Wittall, and they were sen∣tenced there for that, and costs taxed in July; and after the general pardon came, and pardoned all offences before the 9. day of Novem∣ber before, and upon that the Doctor moved for Prohibition, and had that, because the offences were not enormious crimes, and the Sta∣tute, and the Commission upon that is to give power to them to pro∣ceed upon enormious crimes, and to Fyne and Imprison for them. Also resolved that the generall pardon hath discharged the Costs, though that the Costs were taxed before the Pardon was in Print. And this by the relation that hee had at the day before the Costs were taxed.

Cradocks Case, Michael. 7. Jacobi.

CRadock bought diverse things upon the body of the County, which concerned the furnishing of a Ship, as Cordage, Powder, and Shot, and the party of whom they were bought sued Cradocke for the money in the Admirall Court, and Prohibition was granted; for the Statute of Richard 2. is, that the Admirall shall not meddle with things made within the Realm, but only of things made upon the Sea, and that no Contract made upon the Land shall be held there. And here the Contract was at St. Katherines stairs in the bo∣dy of the County; for it was said that St. Katherines is within Lon∣don, and the Major of London hath jurisdiction upon the Thames as farre as Wapping. And if a Murther be committed upon the Thames, this shall not be tryed by the Admirall: and here Terry and Peacocks Case was cyted, which is related in Binghams case in the 2. Reports, and also in Sir Henry Constables Case in the 5. Reports, and it was cy∣ted to be adjudged, that if a Contract be made at Roan in France, that shall not be tryed in the Admirall Court, for that it was made, upon the Land, and not upon the high Sea.

Pasche 8. Jacobi Regis, Common Eench. Gaudyes case with Doctor Newman.

THe Parishioners of the Parish of Alphage in Canterbury, pre∣scribed to have the Nomination and election of their Parish Clark, and the Parson of the Parish by force of a Canon, upon voidance of the place of the Parish Clark elected one to the Office; the parishoners by force of their Custome elected Cundy, the Parson supposing this election to be Irreguler, for that it was a∣gainst the Canon; sued Cundy before Doctor Newman Chan∣cellor of Canterbury, and the said Cundy was by Sentence depri∣ved of the Clark-ship of the Parish, and the Clark of the Parish admitted; Cundy moved for a Prohibition, and had it granted by all the Court, for it was held that one Parish Clark is a meer lay man, and ought to be deprived by them that put him in, and no others; and if the Ecclesiasticall Court meddle with deprivation of the Parish Clark they incura Premunire, and the Canon which willeth that the Parson shall have election of the Parish Clark, is meerly void to take away the Custome that any Parish had to elect him. See the Statute of 25 H. 8. That a Canon against Com∣mon Law confounds the Roiall Prerogative of the King, or Law of God, is void; and Custome of the Realme cannot be taken away but by act of Parliament. See 21 Ed. 4. 44. the Abbot of Saint Albones hath a Charter of the King, to be discharged of Collection of tenthes granted by Parliament or Convocation: The Clergy grants tythes in Convocation, there is a clause in the grant that no one of them who shal be chosen to be collector, shal be discharged of collection by colour or force of any Letters Patents, and after they return the Abbot of St. Albones Collector, who pleads his Letters Patents in discharge of Collector, and resolved by the Court that the clause in the grant of tenthes doth not take away the exemption of discharge by the Letters Patents granted. And it was resolved that if the Parish clark misdemene himselfe in his office, or in the Church; he may be sentenced for that in the Ecclesiasticall court to Excommunication, but not to Deprivation: And after Prohibition was granted by all the court, and held also that a Prohibition lyeth as well after sentence as before.

Trinity 8. Jacobi, Common Bench.

ON was cited to appear in the Prerogative Court of Canterbury, which was out of the Diocesse of Canterbury, and upon that

he praied Prohibition upon the Statute of 32. H. 8. Which willeth that none shall be cited to appeare out of his Diocesse, without assent of the Bishop, and Prohibition was granted: And yet it was said that in the time of H. 8; and Reigne of Mary, that the Arch Bishops of Canterbury had used to cite any man dwelling out of his Diocesse, and within any Diocesse within his Province, to appeare before him in the Prerogative Court, and this without the assent of the Ordinary of the Diocesse: But it was resolved by the Court, that this was by force of the power Legantine of the Arch-Bishop, that as Lynwood saith, ought to be expressed in the Prohibition, for the Arch-Bishop of Canterbury, York, Pisa, and Reymes were Legati nati, and others but Legates a La∣tere.

Hillary, 1610. 8. Jacobi, in the Common Bench. Beareblock against Reade.

IN an Action of Debt brought by Beareblocke against Reade, Ad∣ministratrix to her Husband, upon a Judgement given in this Court: The case was this, the Plaintiffe had Judgment against the Husband, and after sued him to an Ʋtlagary, and upon that he brought a Writ of Errous, and removed the Record into the Kings Bench, and reversed the Judgement for the Ʋtlagary. But the first Judgment was affirmed; and then the Husband acknowledged a Sta∣tute, and dyed: And the Wife took out Letters of Administration, and then the Statute is extended against the Wife, and all the goods which shee had of the Intestates taken in execution. After which Beareblock in the Kings Bench sueth a Scirefacias upon the said Judg∣ment against the said Administratrix, to have execution, and shee pleads upon that, the said Statute in Barre, and the extent of that, and that more then that, shee hath nothing to satisfie, and this was adjudged a good plea. And then the Plaintiffe being not satisfied, he hrought an action of debt upon the said Judgment in this Court, and in Barr of that, the Wife pleaded all this matter in Barr, as afore∣said, upon which the Plaintiffe demurred in Law, and the Judges seemed to incline that this was no Barr; for though that the Wife hath not any means to aide her selfe, or to prevent the extent of the Statute, yet it seemed to them that this should not prevent the

execution upon the Judgement, and that the Wife might have Audi∣ta quaerela against the Connusee of the Statute; and so to make the extent void. It was not argued at this day, but the point only open∣ed, see 3. Eliz. Dyer, 7. H. 6. See Pasche 9. Jacobi, the Residue.

Petty against Evans.

IN an Ejectione firme brought by the Lessee of a Copy-holder, it is sufficient that the count be generall without any mention of the Li∣cense, & if the Defendant plead not guilty, then the Plaintiff ought to shew the Lycense in Evidence: But if the Defendant plead specially, then the Plaintiff ought to plead the License certainly in his replica∣tion, and the time and place when it was made: and in this case the Plaintiff replied, that the copy-holder by License first then had of the Lord did demise, and did not shew what estate the Lord had, nor the place nor time when it was made, and all the Justices agre∣ed that it is not good: For the License is traversable, for if a copy-holder without License of the Lord make a Lease for yeares. The lessee which enters by calour of that, is a Disseisor and a Disseisor cannot maintain an Ejectione Firme, and the Defendant cannot plead that the Plaintiff by license did not demise, for this is a pregnant negative, also it ought to appeare what estate the Lord had, for he cannot give license to make a lease of longer time in the Tenancy then he hath in the signiory: And for that if he be Les∣see for life of a Mannor, and he licenses a copi-holder to make a Lease for 21. yeares of a copy-hold, and then the Lessee for life dies, the license is for that determined, though that the copy-holder be of Inheritance, for the Inheritance of the Lord is bound by that. And for that the Plaintiff replies, that the copy-holder by license of the Lord first therefore had, made the Lease, that is not good by Coke and Walmesley expresly, and though that the Defendant confesse the Replication, by Implication, by pleading. Yet this shall not ayd the Plaintiff, for that it is insufficiently pleaded, which note.

Hillary 8. Jacobi 1610. in the Common Bench.

IN action upon the case upon an Assumpsit, the Plaintiff counts that when he such a day at the speciall instance and request of the Defendant, lent to the Defendant the same day ten pound; And that the Defendant the same day in consideration thereof assumed and promised to the Plaintiff to pay the same summ of ten pound at an other day to come: And it was moved in arrest of

Judgement, that the consideration was too generall, and for that the action not maintainable, and all the Justices but Foster seemed the consideration was good, but Foster it seems was in some doubt of that, but Judgement was entred for the Plaintiff according to the verdict: And Coke cheife Justice said, that such a like action was maintained against Kercher his Chaplain, as Executor of his Father, and it seems for good Law.

Legates Case.

ONe Legate was committed to Newgate Prison for Arrianisme for denying of the Trinity, by the high Commissioners: and it was moved on the behalfe of Legate to have a habeas Corpus and it was granted, and it was said by Coke cheife Justice, that the Statute of 5. H. 4. Chapter 10. Inhibits Justices of peace to commit any man to any private Prison. And it seemes if any do against this Statute, that an action of false Imprisonment lies: For every one ought to be committed to the Common Goal, to the intent that he may be dilivered at the next Goale delivery, and also if any be committed to any of the Counters in London, unlessthat it be for debt, that an action of false Imprisonment lieth for that, for these are private Prisons, for the Sheriffes of London for Debt only.

Note in Debt for ten pound the Defendant confesseth five pound, and for the other five pound pleades that he oweth nothing by the Law, and at the day the Plaintiff would have been nonsuited. And it was agreed by all, that if he be nonsuited, that he shall loose all, as well the debt confessed as the other.

Note the yeare of the Reigne of the King was mistaken in the Record of nisi prius, but the Record which remaines in the Court was very well, and it was amended: For insomuch that it was a sufficent and certaine Issue, this was sufficent Authority to the Justices of nisi prius to proceed, but nothing being mistaken but the yeare of the Reigne, this shall be amended, for it is only the misprision of the Clark, see Dyer 260. 24, 25. 9. Eliz. 11. H. 6.

Note also if Tenant in Dower be disseised, and the Disseisor makes a Feoffment, the Tenant in dower shall recover a••l their damma∣ges against the Feoffee, for she is not within the Statute of Glo∣cester chapter 1. By which every one shall answer for their time.

Hillary 8. Jacobi 1611. in the Common Bench. Reyner against Poell; See Hillary 6. Jacobi fol:

IN second deliverance for copy-hold in Brampton, in the County of Huntington; the case was, copy-hold Lands were surrendered to the use of a woman, and the Heires of her Body, and she took a Husband, the Husband and the Wife have Issue 2. Sonnes, and after Surrenders to themselves for their lives, the remainder to the eldest Son and his Wife in fee, the Husband and the Wife dye, the eldest Son dies, the youngest Son enters, and Surrenders to the use of a stranger: And the sole question upon which they relied, if the Wife was Tenant in tayl, or if she had fee simple conditionall; and it was argued by Nicholls, that the Wife was Tenant in tayl, and to prove that, he cited 2. cases in Littleton, where it is expresly mentioned, who may be Tenant in tayl, see Sect. 73. 79. And who may have a Formedon, see in the discender, sect. 76. And he grounded that upon reason, for that, that it cannot be denied: But that fee simple might be of copy-hold according to the custome, and as well as fee simple, as well it may be an estate tayl, for every greater containes his lesse, and he said that this is grounded upon the reason of other cases, as if the King grant to one to hold Plea in his Court of all actions of debt, and other actions, and then one action of debt is given in case where it lieth not at the common Law, yet the Grantee may hold Plea of that: But if a new action be framed, which was not in experience at the time of the grant, but is given after by Statute, the grant shall not extend to that; and to the Objection, that copy-hold is no Tenement within the Statute, of gifts, &c. As to that he saith, that that shall be very well in∣tended to be within the Statute as it is used, and 4. H. 7. 10. A man makes a gift in tayl by deed, the Donee hath an estate tayl in the deed as well as in the Land, so Morgan and Maxells case, Commen∣taries 26. And so of Office, Honour, Dignity, and copy-hold also; and Dyer 2 and 3. Phil: And Mary 114. 61. It is found by speciall verdict, that copy-hold Lands have been devisable by copy in tayl, and so it is pleaded 2 and 3 Eliz. Dyer 192. b. And when a lesser estate is extracted out of a greater, that shall be directed and ordered, according to the course of the Common Law; and for that the Wife shall have plaint in nature of a Cui in vita, and 15. H 8. b. Title Tenement by copy of Court Roll, it was said for Law that tayl may be of a copy-hold, and that Formedon may well ly of that in descender, by protestation to sue in nature of a For∣medon in descender at the Common Law, and good by all the

Justices; for though that Formedon in descender was not given but by Statute: Yet now this Writ lieth at the Common Law, and shall be intended that this hath been a custome, time out of mind, &c. And the Demandant shall recover by advise of all the Justices, and the like matter in Essex M. 28. H. 8. And Fitz. affirms, that in the chamber of the Dutchy of Lancaster after∣wards; and also he saith, that when custome hath created such Inheritances, and that the Land shall be descendable, then the Law shall direct the discent, according to the Maximes and Rules of the Common Law, as incident to every estate discendable, and for that shall be possessio Fratris, of a copy-hold estate, 4. Coke 22. a. Brownes Case b. And there 28. a. Gravener and Tedd, the cu∣stome of the Mannor of Allesley in the County of Warwick was; that copy-hold lands might be granted to any one in fee simple: and it was adjudged that a grant to one and the Heires of his Body, is within the Custome, for be that Estate Tayl, or Fee simple conditionall, that is within the Custome: So he may grant for life or for yeares by the same Custome, for Estate in Fee simple includes all, and it is a Maxime in Law, to him that may do the greater, it cannot be but the lesse is lawfull; and over he said, that in all cases where a man was put to his reall action at the Common Law, in all these cases a copy-holder may have plaint with protestation to prosecute in •…•…re of the same action; and to the objection, that there cannot be an Estate tayl of copy-hold Land, for that, that the Tenant in tayl shall hold of him in revertion, and shall not be Tenant to the Lord, to that he said that this Estate may be created as well by (Cepit extra manus Domini,) as by Surrender, and then there is not any reversion or remainder, but it is as if Rent be newly granted in tayl; but he said there may be a rever∣sion upon an Estate tayl, as well as upon an Estate for life, and he did not insist upon the Custome, but upon this ground, that if the Custome warrant the greater Estate, which is the Fee simple, the lesse shall be included in that. And he did not argue, but intended that it would be admitted, that discent of copy-hold Land shall not take away entry nor Surrender of that, nor shall make discontinuance, so prayed Judgement and •…•…rne. Harris the youngest Serjeant argued for the Plaintiff, that it shall be a Fee simple conditionall, and not an Estate tayl, and he said that the sole question was if the Statute of Westminster 2. conevrted and changed Fee simple conditionall of copy-hold into an Estate tayl, for if it be not an Estate tayl within this Statute, it shall not be an Estate tayl at all, for Littleton saith, before the making of the said Statute, these Estates were Fee simple conditionall, and for that cannot be by prescription; also he said that copy-hold Estate

was so base an Estate, that at the Common Law a copy holder had no remedy but only in the Court of the Lord: But as to Little∣ton who sayth, that he may have a Formedon in discender, to that he saith, that the Heire which hath Fee simple conditionall may have it by the Common Law, for this was at the Common Law before the making of that Statute of Westminster 2. As it appears by 4. Ed. 2. Formedon 50. 10. Ed. 2. Formedon 55. And by Bendlowes in the Lord Barkleys case, in the Commentaries 239. b. by Benlose where it is said by him, that a Formedon in discender was not at the Common Law, but in a speciall case; where an Assise of Mortdancester would not serve the Issue; that is, if a man had Issue a Sonn, and his Wife died, and after that he takes another Wife, and Land was given to him and to his second Wife, and to the Heires of their two Bodyes begoten, and they have another Sonn, and the Wife dies, and after the Father dies, and a stranger abates, there he sayth that before the Statute, the youngest Soon could not have an Assise of Mortdancester, and for that he shall have a Formedon in discender, which was no other but a writ founded upon his Case, see 10 of Ed. 2. Formedon 55. And for that when Littleton speakes of an Estate tayl of copy-hold, that ought to be understood of Fee taile, which may be Fee simple conditionall, and so Littleton may be reconciled, 〈◊〉〈◊〉 will well a∣gree with himself; also it seems that Copy-hold is ou•• ••f the intent and meaning of the Statute of Westminster 2. For at the common Law in ancient times, this was base Estate, and not more in reputa∣tion then villinage, and also if such an Estate then might be cre∣ated of that which shall be perpetuall and no means to barr it, for surrender of that doth not make any discontinuance, and Recove∣ry was not known, till 12. Ed. 4. and he saith, that in ancient time the name of Copy-holder was not well known, for in ancient time they were called Tenants in Villinage; and Tenants by copy is but a new terme, see Fitzherberts Natura Brevium 12. b. and the old Tenures fol. 2. and Bracton lib. 2. charter 8. In gifts made to servants calleth them Villaines and Sokemen, and in the old Tenures it is said that the Lords may expell them, and upon this he inferred, that if it be so base•• Tenure, though it be of Lands and Tenements, yet they shall not be intended to be within the intent of the makers of the Statute of Westminster 2. and also by a second reason, that is, that it was not the intent of the makers of the Statute that this should extend to any Lands but only to those which are free Lands, for the parties are called Donees and Feoffees, and the will of the Giver should be observed according to the forme in the Charter of his gift manifestly expressed, by which it appears that it ought to be of such Land of which a gift may be made, and also the Statute

provides that if the Donee levy a fine (that in right it should be no∣thing) by which also it appears as to him it seemed, that it ought to be of such Land, of which a fine may be levied. And also for a third rea∣son, which was the great Inconvenience, which would ensue upon it, for then the Donees have no meanes to dispose of that, nor give that for the advancement of his Wife nor her Issues, and also the Lord shall loose his signiory, for the Donee shall hold of him in Reversion and not of the Lord, and it is resolved in Heydens Case, 3 Coke 8. a. That when an act of Parliament, alters the service, Tenure, Interest of the Land, or other thing in prejudice of the Lord or of the custome of the Mannor, or in prejudice of the Tenant, there the generall words of such act shall not extend to Copy-hol∣ders, see the opinion of Manwaod cheife Baron there, and he a∣greed, that admitting it shall be an Estate taile, that then Surren∣der shall not make discontinuance, and so he concluded and prayed Judgment for the Plaintiffe his Clyent, see Hill and Ʋpchars Case, which was adjudged in the Kings Bench, and the principall case was adjourned untill the first Saturday of the next Tearme, See Hil∣lari 7. Jacobi in this Book in Replevin the Plaintiff was non-suited between the same parties. See also Pasche 9. Jacobi 149.

Hillary 1610. 8. Jacobi in the Common Bench. Wallop against the Bishop of Exeter and Murray Clark.

IN a Quare impedit, the case was, Doctor Playford being Chap∣laine of the King, accepted a Benefice of presentation of a com∣mon person, and after he accepted another of presentation of the King, without any dispension, both being above the value of eight pound per annum, if the first Benefice was void by the Statute of, 21 H. 8. chapter 13. or not, was the question, for if that were void by the acceptance of the second Benefice without dispensation, then this remaines a long time voide, so that the King was intituled to present by Laps, and presented the Plaintiff, the Statute of 21 H. 8. provides, that he which is Chaplain to an Earle, Bishop, &c. may purchase license or dispensation to receive, have, and keep, two Benefices with cure, provided that it shall be lawfull to the Kings Chaplaines to whom it shall please the King to give any benefices or promotions spirituall, to what number soever it be, to accept and re∣ceive the same without incurring the danger, penalty, and forfeiture, in this Statute comprised, upon which the question was, if by this last Proviso, Chaplaine of the King having a Benefice with cure above the value of eight pound per annum, of the presentation of a common person, might accept another Benefice with cure over the value of

eight pound also of the presentation of the King without dispensati∣on, the words of the Statute, by which the first Church is made void are, and be it enacted that if any parson or parsons having one Benefice withcure of Soules, being of the yearly value of eight pound or above, accept and take any other with cure of Soules, and be instituted and inducted in possession of the same, that then and im∣mediately after such possession had thereof, the first Benefice shall be adjudged in the law to be void. See Hollands case 4. Cooke 75. a. This case was not argued but the point only opened by Dodridge Serjeant of the King for the Plaintiff, and day given for the argument of that till the next tearm.

Hillary 8. Jacobi 1610. in the Common Bench. Tresham against Lambe.

LEwes Tresham was Plaintiff in waste against John Lambe, the Plaintiff supposed the Defendant had made waste in sowing and plowing ancient meadow, the which he had let to the Defendant for years in Rushton in the county of Northampton, and sowed it with Woade, and prayed Estrepement upon the Statute of Glocester, chapter 13. And upon examination it appears, that the Lands let was pasture and Meadow, the Pasture was Ridge and furrow, but had been mowed and used for meadow for diverse years, and that the Defendant plowed and sowed that with Woade, but this which had been ancient meadow, he used that as Meadow, and did not convert that to Arable Land, but the Judges would not grant any Estrepement to the Pasture, for that it was Ridge and furrow, and it was no ancient meadow, although that had been mowed time out of minde, &c. But to the ancient Meadow they granted a writ of Esterpement, but Foster seemed to be of another opinion, for that, that it was to sow Woade, for that that it is against common Right, and the fume and smell of that is offensive and infectious, but if it had been to sow Corne he agreed as above, and for the exe∣cuting the Writ of Estrepement, they all agreed that the Sheriff ought to take, if need be, the power of the County against those which made the waste (hanging the Action) and may commit them if they will not obey him, for the words of the Statute are, that you shall cause to keep, which shall be intended in safety. But if Lessee for years trench or draine, that is no Wast, as it was now of late times adjudged, where if the Lessee takes any of the reasonable Bootes that the Law allowes, that it shall be no Waste nor Estrepe∣ment

shall be granted, see Fitzherberts Natura Brevium, 59. m.

If a man devise Land to his Executors for years, this is assetts, but if he devise that his Executors shall sell his Lands, or devise his Lands to his Executors to be sold, this shall be no assets untill the Lands are sold, and the money for which the land shall be sold, shall be assetts.

A Record of Nisi prius, in an Action of Debt upon an obligati∣on, with condition to pay such a sum of Money at such a Feast next after the date of the obligation, and the day of the date of the obli∣gation was omitted in the Record of the Nisi prius, so that it doth not appear which shall be the next Feast at which the mony ought to be paid after the date, and by all the Justices, that was no perfect Is∣sue, and for that the Justices of Nisi prius have no power to pro∣ceed upon it, and for that it shall not be amended, otherwise if it had been a good Issue, though that another thing had been mista∣ken, see Dyer 9. Eliz. 260. 24. And see before the same Tearm here.

The King pardoned a man attaint, for giving a false verdict, yet he shall not be at another time impannelled upon any Jury, for though that the punishment were pardoned yet the Guilt remaines.

Hillary 8. Jacobi 1610. In the Common Bench. James versus Reade.

THE case was, the King was seised of a Mannor, where there were diverse Copy-holders for life, and was also seised of eight Acres of Land in another Mannor, in which the Copy-holders have used time out of minde, &c. To have common, and after the King grants the Mannor to one, and the eight Acres to another, and a Copy-holder puts in his beasts into the eight Acres of Land, and in trespasse brought against him by the Patentee of the eight Acres, he prescribes that the Lord of a Mannor, and all those whose estate he hath in the Mannor have used time out of minde, &c. For themselves and their Copy-holders to have Common in the said eight Acres of Land; and further pleaded that he was Copy-holder for his life by grant, after the said unity of possession in the King, and so demanded judgment if action, against which the said unity of possession was pleaded, upon which the Defendant demurrs, and all the Justices seemed that though that prescription was pleaded that the common was extinct, but it seems also to them that by spe∣ciall

pleading he might have beene helped and save his common, for this was common Appendant, see 4. Coke, Tirringhams Case, 37. 6.

Hillary 8. Jacobi 1610. In the Common Bench. Cartwright against Gilbert.

IN Debt upon an obligation with condition to be and perform an Arbitrement to be made, the Arbitrators award, that the Defen∣dant should make Submission, and should acknowledge himself sor∣ry for all transgressions and words, at or before the next Court to be held in the Mannor of P. And for the not performance of that A∣ward, the Plaintiff brought this Suit, and the Defendant in Barr of this, pleads that at the said next Court, he went to the Court to make his submission and to acknowledge himself greived according to the Award, and was there ready to have performed it, but further he saith, that the Plaintiff was not there to accept it, upon which the Plaintiff demurred; and it seemes to Coke and Foster that the Defendant hath done as much as was to be done of his part; and for that, that the Plaintiff was not there ready to accept, the Defendant was discharged, for this submission is personall, and to the intent to make them freinds, and for that both the parties ought to be present. But Walmesley and Warburton seemed, that it might have been very well made in the absence of the Plaintiff, as well as a man may submit himself to an Arbitrement of a man which is absent, for this is only to be made to the intent to shew himself sorrowfull for the Trespasses and words, which he hath made and spoken, and it was not argued but adjourned till the next tearme, and the Justices moved the parties to make an end of that, for that it was a trifling Suit.

Hillary 8. Jacobi 1610 In the Common Bench. Sir Edward Ashfeild.

SIR Edward Ashfeild was bound in an obligation by the name of Sir Edmund, and subscribed that with the name of Edward, and in Debt brought upon that, he pleads (it is not his Deed) and it seemes to all the Justices that he might well plead that, for it appears to them that he is not named Edmund, and the originall against him, was, Command Edward, otherwise Edmund, and this was not good, for a man cannot have two Christian names, and if judgment were given against him by the name of Edmund, and the Sheriff arrest him

by Capias, that false imprisonment lies against him▪ But if he have a name given to him, when he was christened, and another when he was confirmed, he shall be called and known by the name given unto him at the time of his confirmation, and not by the first, see, 11. R. 2. Grants 9. Ed. 3. 4. 12. R. 2 Feoffments 58. See Perkins fol. 8. b 9. a. Grants, 10. Eliz. Dyer, 279. 4.

Hillary 8. Jacobi 1610 In the Common Bench. Styles against Baxter.

STyles brought an Action upon the case against Baxter for calling him perjured man, the Defendant justified that he was perjured in such a Court, in such a deposition and so pleaded that certain∣ly, and it was found for the Defendant at the Nisi prius, and Judgment was given accordingly, and the Defendant afterwards▪ published the same words of the Plaintiff, upon which he brought a new Action for the new publication, in which the Defendant plea∣ded in Barr the first Judgment, upon which the Plaintiff demurred, and it was adjudged without any Contradiction; that it was a good Barr.

Hillari 8. Jacobi 1610. In the common Bench. Andrewe against Ledsam in the Star Chamber.

ANdrewe exhibited his bill in the Star Chamber against Ledsam, the matter, Andrew being a rich Usurer, delivered to Led∣sam being a Scri••ener, one thousand pound to be imployed for him▪ for Interest, that is, for ten pound for the use of every hundred pound for every yeare, Ledsam being a Prodigall man, as it seemes, spent the Money, and delivered to Andrewe diverse severall obliga∣tions, every of them containing three severall persons, well known to be sufficient, being some of them Knights, others Gentlemen and Esquires of great Estates, and the other good Citizens with∣out exceptions, were bound to Andrewe in two hundred pound for the payment of one hundred sixty pound to Andrew at a day to come within six Moneths then next comming, as Andrew, had used before to lend his Money, and delivered the Obligations with Seales unto them, and the names of the parties mentioned to be bound by that subscribed, and his own name also subscribed as wit∣nessing the sealing and delivery of them, as a publique Notary, a•• the good and lawfull obligations of the Parties which were mentio∣ned in them, where indeed the parties mentioned in them, had

not any notice of any of them. But Ledsam had forged and counter∣feited them, as he hath confessed upon his Examination, upon Interrogatories administred by the Plaintiff in this Court, and at the hearing of the Cause and sentence of that, it was moved if Ledsam sha••l loose both his Eares or but one, for if it be but one forgery, then by the Statute of 5. Eliz. Admitting that the Bill is grounded upon this Statute, he shall loose an Eare and pay the double dammage•• and cost to the party greeved: And also if Andrew, being but the Obligee, and not any of the parties, in whose names the Obligations were forged, if he be such a party greived, which shall have double costs and dammages, and these doubts were resolved by Coke cheife Justice of the Common Bench, where they were moved, and Flemming cheif Justice of the Kings Bench, that Ledsam should loose but one eare, for that shall be taken as one forgery, for that it was made at one time, and also that Andrew was the party greived within the Statute, but Coke said that the Bill was generall, that is against the Lawes and Statutes of the Realme, and not precisely upon the Statute of 5. Eliz. For he said, that when a Bill is founded upon an Act of Parliament, that this ought to containe all the branches which are mentioned in the Act, the which wants in this Bill, but in∣somuch, that it was adjudged in Parliament what punishment such offenders shall have, they inflicted the same punishment which is appointed by the Statute, and added to that, that he should be Imprisoned till he found good Suerties for his good behavi∣our, and also that hee shall be brought to every one of the Kings Courts at Westminster with great Papers in his hatt, contai∣ning his offence in Capitall letters, but the Lord Chancellor ex∣pounded the double dammages in such manner; that is, that they shall not be intended double Interest, but only the Principall Debt.

Note, that if Execution be directed to a Sheriffe, to Arrest any man, or to make Execution within a Liberty: And the Sheriffe direct his Warrant to a Bayliffe of the Liberty, for to make Execu∣tion of the Processe, which makes it, and after is a Fugitive, and not able to answer for that, the Lord of the Franchise shall answer for that, and shall be liable to answer for his Bayliffe, by all the Justices.

Burdett against Pix.

IN Debt upon a single Bill by Burdett against John Pix, as admi∣nistrator of Freewen, the case was this; that is, Freewen was bound in an Obligation of thirty four pound to Burdett the Plain∣tiff,

and was also bound to one William Pix in 80. l. Freewen dy∣ed Intestate, and the Letters of Administration of his Goods were Committed after his Death, to the said John Pix, the Defendant and the said William Pix also made the said John Pix the Defen∣dant his Executor and died, and the Defendant in this Action pleads, that the said Freewen was indebted to the said William Pix, and that he was his Executor, and that he had Goods of the said Freewens, sufficient to satisfie the said debt, the which he retained for the satisfaction of that, and that over that, he hath not of his to satisfie him, upon which the Plaintiff Dem•…•…or that, that the Defendant doth not plead, that he hath •…•…is election to retaine the said goods, for the satisfaction of •…•…own said Debt before the Action brought, and by all the Justices, he ought to make his election before the bringing of the Action, otherwise he shall be charged with the other Debt. See Woodward and Darcyes Case, Commentaries 184. a. and 4. Cook 30. Coulters Case.

Hillary 8. Jacobi 1610. in the Common Bench. Bone against Stretton.

THe case was this, A man seised of two Acres of Land, makes a Lease for years of one Acre to one, and another Lease for yeares of the other Acre to another, and then he enters and makes a Feoffment, and severall Liveryes upon the severall Acres, and one of the Lessees being present, doth not assent to the said Livery, and the use of the said Feoffment, was not the use of his last Will, and then he declares his last Will; and by that recites the said Feoffment, and then declares the use of that to be to the use of him∣self for life, the remainder over to a stranger, and after the Tenant for years which did not assent to the Livery, grants his Estate to the Feoffor, and the Feoffor dies; and Nicholls Serjeant moved first: That this enures as a grant of a reversion; and that the grant of the perticuler Tenant enures, first as an Attornement, and then as a surrender of his Estate, as if it had been an expresse surrender, and all the Justices agreed, that this doth not enure to make Attornement and surrender as expresse surrender will, for an expresse surrender admits the reversion, to be in the Grantee to whom the surrender is made: But in this case before Attornement the Grantee hath nothing, and after Attornement the particuler Estate being granted, it shall be drownd in the reversion, Harris Serjeant, the words of the devise are, that his Feoffees and all other

Persons which after his Death shall be seised, shall be seised to the same uses before declared, and of one Acre he hath not any Feoffees; for of that the Feoffment was voyd, and yet it was agreed that the devise was good as Lyngies Case was in 35. H. 8, cited by An∣derson, in Welden and Elkintons Case, Commentaries 523 b. And he argued, that though, that when a conveyance may enure in severall courses, yet it cannot enure for part in one course, and part in another course, and for that this devise enures as a devise of Land for one Acre, and declaration of the use of the Feoffment fo•…•…her Acre; for it is agreed in Sir Rowland Haywards Case, 2. 〈…〉〈…〉. a. 6. Coke 18. a. Sir Edward Cleeres Case, and also in this 〈◊〉〈◊〉 the devisor hath, made expresse declaration, that the Land shall passe by the Feoffment, and that the Will shall be but a declaration of the use of the Feoffment, and for that nothing shall passe by the devise, with which the Justices seemed to accord, and cited a case to be adjudged in the Kings Bench, 40. Eliz. where the Father gives and grants Lands to his Son & his heires with warranty, and makes a Letter of Attorney within the deed to make Livery, and adjudged, that that shall not enure as a Covenant to raise a use, for that, that it appeares by the Letter of Attorney, that his intent was, that that should enure as a Feoffment, and not as any other manner of conveyance, see 14 Eliz. Dyer 311. 83. Master Cromwells Case, and so it was adjudged accor∣dingly.

Hillary 8. Jacobi 1610. in the Common Bench: Gargrave against Gargrave.

Katherine Gargrave, was Plaintiff in a Replevin against Sir Rich∣ard * 1.33 Gargrave Knight, and the case was this; The Father of Sir Richard Gargrave was seised of divers Tenements called Lyn∣gell Hall in Lyngell Hall, and of a Moore called Kingstey Moore in an∣other Town, and the Tenants of the said Father of Sir Richard, have used to have Common in the said Moore, and the said Father so being of that seised, demised the said Tenements to the said Katherine Gargrave for her Joynture, by these words, by the name of Hingell Hall, and certaine Land, Meadow, and Pasture in cer∣tainty; and with all ••ands, Tenements, and Hereditaments to that belonging; or with that occupied and enjoyed, now or late in the Tenure of one Nevill; and Nevill was Tenant of the said premises, and had Common in Kingsley Moore, upon which the question was; if the said Katherine by this demise shal have

Common in the said Moore or not. And Hutton Serjeant argued, that the said Katherine shall have Common in the said Moore, for he said, that the said demise shall be expounded, according to the intent of the partie, 〈◊〉〈◊〉 as it is agreed in Hill and Granges Case, Commentaries 270. b. Where a man makes a Lease for yeares of a house, and all the Lands to that belonging, and though it is there agreed, that Land cannot be appurtenant to a house, yet this word appurtenant, shall be taken in the effect and sense of usually occupied with the Messuage or lying to the house, by which it appeares that the words are transferred from the proper signification to another, to satisfie the intent of the parties, for it is the office of the Judges, to take and expound the words which the common People use, to expresse their intent according to their intent, and for that shall be taken not according to the very defini∣tion, insomuch that it doth not stand with the matter, but in such manner as the party used them: And for that this grant shall amount to a new grant of Common in the said Moor, for as it seems common or feeding for Cattell may be granted, and passe by the name of Tenements & Hereditaments, or at least shall be included and comprised within the words Tenements and Heredi∣taments, and so shall be construed as a thing occupied and in∣joyed with the said Messuages, see Hen. Finches Case 39. Coke. And it was an expresse endorsment upon the demise, that the said Katherine should not have Common in the said Moore, but it was agreed by all, that this was vaine and idle, and nothing worth; but he urged that this shall have a favorable construction, for that it was for Joynture, which shall have as favorable construction as Dower. And so he prayed Judgement for the Plaintiff; and of the other part Nicholls Serjeant argued, that this shall not amount to a new grant, for he said that they are not apt words to receive such construction, for he said that this is no Tenement or Heredi∣tament, no Common, but only a Feeding for the Cattell of the Lessee, in the wast of the Lessor, see 20. Edw. 2. Fitzherbert, admeasurement, and it cannot passe as a thing used with the said house, for that was not in Esse at the time of the grant, and there is not any apt word to make a new grant, ••nd he cited 〈◊〉〈◊〉 Iudge∣ment in Action of wast, between Arden and Darcy, where Ardon was seised of the Mannor of Curball and also of Parkhall, and makes a conveyance of the Mannor of Curball to divers uses, and at this time parcell of the Mannor of Curball, was occupied with Parkhall as parcell of that, and after made another conveyance, of all his Lands in England, except the Mannor of Curball: And adjudged that the Parke▪ which is used with Parkhall shall not be within the exception▪ Coke saith, that it was only feeding, and not Hereditament, for

the Inheritance of both was in the Lessor; but if it be granted of feeding it shall be intended the same like feeding, that the Tenant hath; as if the King grant such Liberties as the City of London hath, and that shall be good, and so it was adjourned.

Hillary 8. Jacobi, 1610. In the Common Bench. Cannige against Doctor Newman.

IN an Information upon the Statute of 21 H. 8. chapter 13. Of non-residency, it was found by speciall Verdict, that Doctor Newman was Incumbent, invested in the Rectory of Staple∣hurst in the County of Kent, and that hee was also seised of a house in Staplehurst aforesaid; scituate within twenty yards of the said Rectory, and that the mansion house of the said Rectory was in good repaire, and that Doctor Newman held that in his hands and occupation with his one proper goods, and did not let it to any other, and that he inhabited in the said Messuage and not in the Parsonage, the Statute of 21 H. 8 chapter 13. Provides, that every Parson promoted to any Parsonage, shall be personally resident, and abiding in, at, and upon his said Benefice, and in case any such spirituall Parson keep not residence at his Benefice, as afore∣said, but absent himself willfully by the space of a month together or two Moneths, to be accounted at severall times, in any one year, and makes his residence and abiding in any other places by such time, that then he shall forfeit for every such default ten pounds, the one halfe to the King, and the other halfe to the Informer; and if the said Doctor Newman was not resident, and incurred the pe∣nalty of this Statute was the question, and it was argued by Haughton, that he had incurred the penalty of the Statute, and was non-resident within the intent, and he argued that to some intent all the Parish may be said the Benefice of the Parson, for that, that he hath benefit out of it, and he is called Parlon of such a Town or Parish, but this is not the Benefice that the Statute intends, upon which he ought to be resident, as in the 29. Assise 55. If a Corrody be granted out of an Abby, it shall not be intended out of the seat of the Abby, out of the Booke of 29. Assise 8. Where it is said, that if a Rent be granted out of a Priory, that all the possessions of the Priory are charged, as to that he saith, it was but (it was said) and not Judgment, and also the said Bookes may be well reconciled, for it is more proper that the seate of the Abby shall be charged with the Corrody, and the possessions of the Priory with the Rent, and also he said, there were seven causes of making of the said Statute, whereof but two are to our purpose, the first is Hospitality, second

releife of the Poore, and these are to be done in the Parsonage house, for this is the free Almes of the Church, and so it was ad∣judged, 34 of Eliz. in the Kings Bench, Broome and Hudson, and in this Court also, and in this Court also in the 40 of Eliz. in the Kings Bench betwixt Butler and Goodall 6 Coke 21 b. that he ought to be resident upon the Parsonage house and not other where, and he allowed and agreed, that imprisonment without deceit, and sicknesse are good excuses, but so it shall not be a prejudice, for the Parsonage house is in good repaire: And so concluded that judg∣ment shall be given for the Plaintiff: And for the Defendant, Barker Serjeant argued, that it appears by the speciall Verdict, that Doctor Newman held the Parsonage house in his own hands and occupation, and did not let it, upon which he gathered that his servants were re∣sident upon it, and to the exposition of the Statute, he saith, that it appears by Heydons Case, 3 Coke 7. a. That the better means to ex∣pound Statutes, is to consider the mischeife which was at the com∣mon Law before the making of that, and when it is intended to be reformed by that, and this appears by the Preamble of that Statute, also he saith, that before the Councill of Lateran a man might pay his tithes to whom he would, but by the same Councill all the Parish is made the Benefice of the Parson, for he receives benefit by that, and yet he said, that before the said Statute, every spirituall man was bound and compellable by the Ecclesiasticall Law to be resident, yet if he were in the Kings Service or an Officer in the Chancery, he should be excused, as it appears in the Register, fol. 58. b. Though that he were Dean, the which Office meerly requires his personall residence, as it is there said, and also he saith, that the Case between Butler and Goodall, was that the Parson demised all the Parsonage house but only one Chamber, and was not resident in that, but in a Copy-hold within the Town, and so prayed Judgment for the De∣fendant, this case was compounded by the Lord Coke, but he in∣tended this was no residence within the Statute, for this was not his Benefice, but the Tenants part of that, as he said hath been ad∣judged in the Exchequer.

Hillary 8. Jacobi 1610 In Banco Communi. Crogat against Morris

THE Case was, A Commoner brought an Action upon the Case, against a stranger, for that his Beasts came in and fed upon the Common, and by Coke, Walmesley, and Warburton it lieth very well, Foster to the contrary, for then every Commoner may have the same Action, and then it would be infinite.

Hillary 8. Jacobi 1610. In Bonco Communi. 〈◊〉〈◊〉 against the Lady Saint John, Postea, 269.

SEE for the beginning of this in Michalemas tearme last, and that case was argued again by Hutton. Serjeant for the Defendant, that the parcelling of reversion destroyed the Covenant, it was agreed in Winters case in case of condition, and he agreed, that that Covenant is within the Statute of 31. H. 8. chapter. 34. as well as condition, and for that Grantee of part of the Reversion shall not have an Acti∣on of Covenant, for then if there be twenty Grantees, every one of them shall have severall Action, and this was not the intent of the Statute, and as to the Common Law before the Statute, a thing which gives action cannot be divided, and he urged, that when the Reversion of Fee simple was first granted, if he may by that have an action, then when the Reversion of the tearm was gran∣ted, he may have another action, and so a man may have two se∣verall actions for one thing, see, 29. Assise 23. Three Coparce∣ners were, and Rent of five pound was allotted to two of them equally to be divided, that is, fifty shillings to one and fifty shil∣lings to another, and they two joyned in an Action, and it is doub∣ted, if the Writ shall abate or not, and 44 Ed. 3. 34. b. The Abbot of Westminster•• Case, the Abbot made a Lease of a Mannor, except the Wood, and after by another Deed he let the Wood, and the Lessee made Wast in the Mannor and the Wood, and he brought one Action of Wast and it is not good; and he agreed that one For∣medon yeth upon two discontinuances, for there was but one dis∣continuance, and that is the cause of the Action, but a man cannot have a Writ of Warrantia Charte upon two Deeds, no more in the•• principall case, for the Plaintiff hath his Title by two Deeds▪ and so concluded, and prayed Judgment for the Defendant. Harris Serjeant argued of the other part for the Plaintiff, that an action of Cove∣nant lieth very well, for the originall Lease was but one intire Lease, and the Covenant was also intire, and for that the Grantee of the Reversion shall have advantage of that, and he agreed that in reall actions, which alwaies are grounded upon the title, and for that if it be grounded upon two titles, he ought to have 2. actions according to his title, but in personall actions where the action is grounded upon the deed, & another matter which comes (Ex post facto) which is the (wrong) which is the cause of the action, & for which damages I shall be recovered as it is said in Blakes Case▪ 44. 6, Coke, and this is the reason that a man may have an Action upon the Statute of Offen∣ders in Parkes for hunting in two Parkes, 13 H. 7••12. and 8 Ed. 4. 〈◊〉〈◊〉 One Action of Trespasse for Trespasses▪ made at severall times, and

so one Action of Debt for diverse Contracts, 11 H. 6. 24. by Mar∣tin, 3 H. 6. Trespas, 3 H. 4. But he argued that in reall or mixt Acti∣ons, as ravishment of Ward, for severall Wards or one; Quare im∣pedit for severall Churches, this shall not be good, Fitz. Ward 52. 3. H. 6. 52. And also he said that the Statute of 32 H. 8. chapter 34. by expresse words gives the same remedy to Grantees of Rever∣sions, that the Grantors themselves had, and the Grantor with∣out question, may have an Action if he have not granted the Re∣version, and so he concluded, and prayed Judgment for the Plaintiff, and it was adjourned.

Hillary 8. Jacobi 1610. In the Common Bench. Sturgis against Dean, see T. 65.

A Man was bound to pay to the Plaintiff ten pound within ten dayes after his return from Jerusalem, the Plaintiff pro∣ving that he had been there, and the Plaintiff after ten dayes brought his Action upon the Obligation, without making of any proofe that he had been there, and if that were good, or that he ought to make proofe of that before he brings his Action, this was the question, and also he ought to make proofe, then what man∣ner of proofe, and it was moved by Haughton, that when a thing is true, and is not referred to any certain and particular manner of proof, as before what shall be done, or how the proofe shall be made, the party may bring his Action, and the other party may take his Issue, upon the doing of the thing which ought to be pro∣ved & the triall of that shall be proofe sufficient, and in his count he need not to aver that he had been there, see 10 Ed. 4. 11. b. c. 15, Ed. 4. 25. 7 R. 2. Barr 241. And here also the proofe, if any should, it ought to be made within ten dayes, the which cannot be made by Jury in so short a time, as it is said by Choke in 10 Ed. 4. 11. b. though that he agreed, that when a man may speake of proofe generally, that shall be intended proofe by Jury, for that, that this is the most high proofe, as it is said in Gregories Case, 6 Coke 20. a. and 10 Ed. 4. 11. b. But of the other part it was said by Sherley Serjeant, that true it is that proofe ought to be made for the Defendant, as the Case is in 10 Ed. 4. 11. That then such proofe should be sufficient, for the Plaintiff may bring his Action before that the Defendant may by possibility bring his Action, but where the Plaintiff ought to make the proofe, there he ought to prove, that before that he bring his Action, and it shall be accounted his Folly, that he would bring his action before he had proved that, but all the Justices agreed, that the Plaintiff need not to make any other

proofe, but only by the bringing of his Action, but the Lord Coke took exception to the pleading, for that, that the Plaintiff hath not averred in his replication that he was at Hierusalem, but gene∣rally that such a day he returned from thence; and he said, that a man might returne from a place, when he was not at the same place, as if he had been neere the place, or in the skirts of Hieru∣salem, and upon that it was adjourned, see the beginning of that. Trinity 8. Jacobi 462. a. Mich. 13. 200. and 204.

Hillary 8. Jacobi 1610. in the Common Bench. Wickenden against Thomas.

THe Case was this, 2. Executors were joyntly made in a Will, * 1.34 one of them releases a Debt due to the Testator, and after be∣fore the Ordinary refuses to Administer, and it was agreed by all the Justices; that the release was Administration, and for that he hath made his Election, and then the Refusall comes too late, and so is void.

Bedell against Bedell.

IN wast the case was this, A Man seised of Lands makes his Will, * 1.35 and of that makes two Executors, and devises his Lands to his Executors for one and twenty yeares after his Death, upon trust, that they should permit A. To injoy that during, and to take all the profits all the Terme, if he so long lived, and if he ••ied within the Terme, then that B. should take the profits, and so with others remained in the same manner, with the remainder over to a stranger in tayl, one of the Executors refuseth to prove the Will, or Administer, and also to accept the Terme, the other execu∣tor proves the Will, & Administers the Goods, and enters into the Land according to the Lease, and that assignes to A. according to the trust reposed in him, and after that he in reversion in tayl brings an Action of wast against the Executors which proved the Will, and he proved all the matter aforesaid, and that before the assignement, and that before that no wast was made, and it seemes to all the Judges, that this was a good Plea, for the waveing of one Executor is good, and though that he might after Admini∣ster, as the book of 21. Ed. 4. Is for that, the Interest of his Com∣panion preserves his Authority, where are 2 or more. But if there be but one Executor and he refuseth, and the Ordinary grants Administration to another, he cannot then Administer againe; and Coke cheife Justice cited that one Rowles, made the Lord

Chancellor which then was the cheife Justice of England, and the Master of the Rolls, his Executors and died, and they writ their Letters to the Ordinary, witnessing that they were Imployed in great businesses, and could not intend the performance of the said Will, and that for that, they desire to be free of that, and that the Ordinary would committ the Administration, of the goods of the said Testator to the next of blood, and this sufficient refusall. And upon that the Ordinary committed the Administra∣tion accordingly: And to the pleading, that no wast was made before the assignement, they all agreed that this was good, and so it was adjourned for this time.

A man sould his Land upon a condition, and after took a Wife * 1.36 and died, the Heire entred for the Condition broken, yet the Wife shall not be endowed, so if the Condition had been broken before the Death of the Husband, if he had not entred, for he had but title of entery.

Hillary 8. Jacobi 1610. in the Common Bench. As yet Doctor Husseys Case:

MOore against Doctor Hussey and his Wife and many others, * 1.37 in Ravishement of Ward. The case was, the Ward of Moore was placed at the University of Oxford to be instructed in the liber∣all Sciences, and was married by the Wife of Doctor Hussey to the Daughter of the said Wife, which she had by a former Hus∣band. And for that Moore brought this Writ against Doctor Hussey and his Wife, and the Minister which married them, and all others which were present at the said marriage, or Actors in that. And upon Evidence it appeared, that Doctor Hussey was not present nor Actor in it; and for that the Jury found him not guilty, but they found all the other Defendants guilty of the said Ravish∣ment, for upon the Evidence it appeares, that the Wife of Doctor Hussey procured and provided the Minister which married them, and in the last Michaelmas Terme this was tried here at the Barr, and the Jury assessed Dammages to ten pound, and the value of the Ward to eighty pound, for so much Moore proved that he could have sold him for, and also the Jury found, that the Ward doth appeare married being of the Age of 16. yeares at the time of his marriage, and exceptions were taken to that, for that it was not found of what age the Ward was at the time of the verdict, and it was urged by Dodridge that by the Statute of Westminster 2. chapt. 39. The precise age ought to be found at the time of the verdict. Secondly it was found that the Ward did appeare married,

and doth not say without License of the Guardian, and the Guardian may give his consent, where the Ward marries himselfe, and then there is no cause of action. The third and other exception was taken in the behalfe of the Wife of Doctor Hussey, for that shee being a married Wife was found guilty of Ravishment of Ward, against the Statute of Westminster the 2. chap. 39. And it was urged that it was not the intent of the Statute that provides, that he which did Ravish; not having right in the marriage, though he should restore the Boy naked and not married, or should satisfie for the marriage, he shall be punished for the transgression, by Imprisonment for two yeares, and if he shall not restore him, or shall marry the Heire, after the marrying yeares, and cannot satisfie for the marriage, he shall abjure the Realme, or shall have perpetuall Imprisonment. And it was objected that a married woman, was not intended to be within this Statute, for it is apparent, that a married woman hath not wherewith to make satisfaction, and it shall not be intended that she shall have perpe∣tuall Imprisonment, or make abjuration, for this was to make separation betweene the Husband and his Wife, and so it was adjourned. And the Judges moved the parties to compound amongst themselves, see Michaelmas 8. Jacobi. Trinity 9 Jacobi.

Pasch. 9. Jacobi 1611. in the Common Bench. Kenricke against Pargiter and Phillipps. * 1.38

RObert Pargiter Gentleman, and John Phillipps were summo∣ned * 1.39 to answer to Robert Kenricke Gentleman of a Plea, why they tooke the Beasts of the said Robert Kenricke, and those unjustly detained against Suerties and Pledges, &c. And there∣upon the said Robert Kenricke by Thomas Pilkington his Attor∣ney doth complaine, that the said Robert and John the fourth day of August the yeare of the Reigne of our now King seventh, at Kings Sutton in a certaine place called Great Greenes took Beasts, that is to say, one Gelding, one Mare, and one Colt of the said Robert Kenrickes, and do unjustly detaine them against Suerties and Pledges, untill, &c. By which meanes he saith he is the worse, and hath losse to the value of twenty pound, and therefore bring∣eth this suit, &c. And the aforesaid Robert Pargiter and John Phillipps, by John Barton their Attorney, do come and defend the force and Injury when, &c. And the said Robert Pargiter in his owne right doth well avow, and the aforesaid John Phillipps as Bailiff of the said Robert Pargiter, doth well acknowledge the

taking of the said Beasts in the aforefaid place in which, &c. and justly, &c. Because he saith that the said place, in which it is sup∣posed the taking of the said Beasts to be made, did containe and at the aforesaid time in which it is supposed the taking of the aforesaid Beasts to be made, did containe in it foure Acres of Meadow in Kings Sutton aforesaid, which the said Robert Par∣giter long before the aforesaid time in which, &c. and also at the same time in which, &c. was and as yet appeareth seised of one Messuage and one virge of land with the appurtenances in Kings Sut∣ton, in his Demesne as of Fee, and that the aforesaid Robert Kenrick the aforesaid time when, &c. and long before was seised of a Messu∣age and foure Virges of land with the appurtenances in Kings Sut∣ton aforesaid, whereof the aforesaid place in which, &c. Is, and at the aforesaid time when, &c. and also at the time, to the con∣trary doth not appeare in the memory of man, was parcell in his Demesne as of Fee. And the said Robert Pargiter and John Phil∣lipps further say, that the said Robert Pargiter and all those whose Estate the said Robert Pargiter now hath, and at the aforesaid time when, &c. had in the aforesaid Messuage and one Virge of Land with the Appurtenances of the said Robert Pargiter, from time the contrary whereof doth not appeare in the memory of man, had and have used to have, and were accustomed to have Common of Pasture in the aforesaid place, &c. For six Horses, Geldings or Mares, two Colts, six young Beasts called Steeres, or young Beasts called Heifers, and two Mares called breeders, in and upon the said Messuage, and one Virge of Land with the Appurtenances, lying and rising in manner and forme following, that is to say, every year, in and from the first day of August called Lammas day, untill the feast of the purification of the blessed Mary the Virgin, then next following, as to the said Messuage and one Virge of Land with the Appurtenances, belonging, and the said Robert Pargiter and John Phillipps further say, that the aforesaid Ro∣bert Kenricke of the aforesaid Messuage and foure Virges of Land with the Appurtenances whereof, &c. In the forme aforesaid, appearing seised, the said Robert and all those whose Estate the said Robert Kenricke now hath, and at the aforesaid time in which, &c. had in the aforesaid Messuage and foure Virges of Land with the Appurtenances whereof, &c. time out of mind, had and were used and accustomed to have the aforesaid place in which, &c. To their proper use in severalty every year, in and from the feast of the purification of the blessed Virgin Mary, untill the first day of August called Lammas day then next comming, that by reason, and in consideration therof, he the aforesaid Robert Kenrick, and all those whose Estate the said Robert Kenrick now hath, and at the time in

which, &c. had in the aforesaid Messuage and foure Virges of Land with the Appurtnances whereof, &c. time out of minde, have had and were accustomed to have every yeare from the aforesaid first day of August, called Lammas day, and from thence untill the aforesaid purification, then next following, Common of pasture in the aforesaid place in which, &c. Only for three Mares or Gel∣dings and no more, and because the Beasts aforesaid in the nar∣ration aforesaid, specified over and above the aforesaid other three Mares or Geldings, the aforesayd time in which, &c. were in the a∣foresayd place in which, &c the Grasse then growing, there eating, and the Common of pasture of the sayd Robert Pargiter, overcharg∣ing, and doing damage to the sayd Robert there, the sayd Robert Pargiter in his owne right doth wel avow, and the aforesayd John Phillips as Bayliff of the aforesayd Pargiter doe well acknowledge the taking of the Beasts aforesayd in the aforesayd place in which, &c. and justly, &c. they then doing damage there, &c.

And the aforesayd Robert Kenrick saith, That neither the sayd Robert Pargiter for the reason before alleadged, the taking of the aforesayd Beasts in the aforesayd place in which, &c. can justly a∣vow, nor the aforesayd John Phillips as Bayliff of the aforesayd Par∣giter, for the same reason the taking of the Beasts aforesayd, in the aforesayd place in which, &c. justly can acknowledge, Because by protestation that he the sayd Robert Kenrick, and all those whose estate the sayd Robert Kenrick now hath, and at the aforesayd time of the taking, &c. had in the sayd Messuage and foure Virges of Land, with the appurtenances, whereof, &c. time out of minde, had not, nor used to have, or were accustomed, every yeare at the first day of August, called Lammas day, and from thence to the next Feast of the Parification then next following, Common of pasture in the aforesayd place in which, &c. onely for three Horses, Mares, or Geldings, and not more, in manner and forme as the aforesayd Ro∣bert Pargiter and John Phillips above have alleadged; for Plea the sayd Robert Kenrick sayth, That he long before the time of the ta∣king of the Beasts aforesayd, and also at the same time of the taking, &c. was seised of the Mannor of Kings Sutton with the appurte∣nances in Kings Sutton and Astrop in the County aforesayd, where∣of the aforesayd Messuage and four Virges of Land with the ap∣purtenances, whereof, &c. are and at the aforesayd time of the ta∣king, &c. and also time out of mind, &c. were parcell, in his De∣mesne, as of Fee; and the aforesayd House and foure Virges of Land, with the appurtenances thereof, &c. and of the taking, and likewise time out of mind, were parcell of the Demesne Lands of the Mannor of Kings Sutton aforesayd: And the sayd Robert Kenrick so of the Mannor aforesayd, with the appurtenances in manner afore∣sayd

appearing seised, the sayd Robert, before the sayd time in which, &c. put his Beasts aforesayd, which then were the proper Beasts of the sayd Robert Kenrick, upon the aforesayd House and four Virges of Land with the appurtenances, lying and rising in the aforesayd place in which, &c. to eate the Grafs there growing in the sayd place, in which, &c. called Great Greens, parcell, &c. the Grass in the same then growing, feeding, and the aforesayd Beasts were in the place aforesayd, untill the aforesayd Robert Pargiter and John Phillips, the aforesayd fourth day of August, the seventh yeare a∣foresayd, at Kings Sutton aforesayd, in the County aforesayd, at Great Greene, parcell, &c. took the sayd Beasts of the sayd Robert Kenrick, and those unjustly detained, against Sureties and Pledges, untill, &c. as he above against those complaines, and this he is rea∣dy to verifie; whereof, and from which the aforesayd Robert Par∣giter and John Phillips, the taking of the aforesayd Beasts in the a∣foresayd place, &c. further acknowledge, the sayd Robert Kenrick demands Judgment and his damages (by reason of the taking and unjust detaining of those beasts) to be adjudged unto him, &c.

And the aforesaid Robert Pargiter and John Phillips say, that the a∣foresaid Plea of the said Robert Kenrick above in the Bar avowed pleaded, and matter therein contained, is very insufficient in Law, justly to avoid the said Robert Pargiter and the said John from just acknowledging the taking of the Beasts aforesaid, to have and shut up, and that he to the said plea in manner and forme aforesaid plea∣ded, hath no need, not by the Law of the Land shall be held to answer, and this they are ready to averr, whereof for default of a sufficient plea of the aforesaid Robert Kenrick in this part, the said Robert and John, as before, demand Judgement, and Returne of the Beasts aforesaid, together with their Damages, &c. To them to be adjudged, &c. And the aforesaid Robert Kenrick in respect he hath sufficient matter in Law, justly to avoid the said Robert Pargiter, and the aforesaid John from justly acknowledging the taking of the said Beasts to be shut out as above alledged, which he is reaoy to verify, which truly matter of the aforesaid Robert Pargiter and John do not answer according to their verifying, they altogether refuse to admit as before, and demand Judgment, and their Damages occasioned by the taking and unjust detaining of the said Beasts, to be adjudged to them, &c. And because, &c. Up∣on the pleadings the Case was thus, a Freeholder prescribs to have common in parcell of the Demesnes of the Mannor for six Horses and other Cattel in certain Land from Lammas to Candlemas, & that the Lord of the Mannor hath used to have the said Parcell of Land in se∣verall to his owne use, from Candlemas to Lammas, and in considera∣tion of that, the said Lord hath used to have Common in the said

parcell of Land for Horses only and not more, and the Lord unjust∣ly puts in other Beasts then the said three Horses in the said parcel of Land, and surcharged the Common, and the Free-holder distrayned them doing Damage, and the Lord brings a Replevin, and it was argued that prescription was not good, for that that Free-hol∣der claimes that as Common without number, in his severall Soyle, the Grantee cannot exclude the owner of the Soile, 12 H. 8. Brooke, so of him which hath Common Fishing in the severall of another, he cannot exclude him which hath the severall, 18 H. 6. 16. And it is not like to the Case of the time of Edward the first, prescription the 55. Where is Prescription that the Owner of the Soile shall be excluded from his Common for part of the yeare, for there the other claimes all the Vesture of the Land, and so may well exclude the Lord, but not when he claimes it but as Common, but it was agreed that by Lawes by the Commoners consent they may order that their great Cattell shall be put in in such Feild only, untill such a Feast, and after that for sheep and swine, and this is good, as it appears by 46 Ed. 3. 25. And Coke cheife Justice said, that such prescription to have Common and to exclude the Owner of the Soyle, is not good, and he saith that so it hath been adjudged between Whyte of Shir∣land, 31 Eliz. And in Cletherwoods Case of the Middle Temple, but he said that Prescription to have all the Vesture of the Land, is good for such a time, and at the first day of the Argument of this Case, Foster Justice seemed that the prescription was good, and might have reasonable beginning, that is by Grant, as if they have Common together, and they agree that one shall have all for one part of the yeare, and the other for another part of the year, and that shall be good, to which Coke answered, that that cannot be by Prescription to have that as Common, and at another day Coke, cited Shirland and Whites Case to be adjudged, 26 of Eliz. in the Kings Bench, to be prescription to have common in the Waste of the Lord, and to exclude the Lord to have common in the place, and adjudged to be void prescription, and also he cited a case between Chimery and Fist, where prescription was to have common in the Soile of the Lord, and that the Lord shall have feeding but for so many cattell, and adjudged that the Prescription was not good to exclude the Lord, but a man may prescribe to have the first Crop, or the first Vesture of anothers Land, and it is good, and with that a∣grees the resolution in Kiddermisters Case in the Star-Chamber; Warburton justice said, that this prescription is not for the ex∣cluding of the Lord, but for their good ordering of their Lands, ac∣cording to the Book of 46 Ed. 3 25. before cited, that the great Cat∣tell should have the first feeding, and after that the sheep: Coke said, that if it had appeared by the pleading, that all the Demesnes of

the Lord ought to be common, and in consideration, that the Lord had inclosed part, and injoyed that in severall, the Free-hol∣ders and Tenants of the Mannor which have Common over all the Residue, and exclude the Lord, and this shall be good by pre∣scription, and it is adjourned, see 15 Ed. 2. Fitzherbert Prescripti∣on 51.

And afterwards in Trinity Tearme 1612. 10. Jacobi, this case was moved againe, and all the Justices agreed as this Pleading is, Judgment shall be given for the Plaintiff, and they moved the par∣ties to replead.

Pasch. 9. Jacobi, in the Common Bench. Portington against Rogers. Trin. 8. Jacobi, Rot. 3823.

MARY Portington brought a Trespasse against Robert Ro∣gers * 1.40 and others Defendants, for the breaking of her house and Close, upon not guilty pleaded and speciall Verdict found, the Case was this, A man had Issue three Daughters, and made his Will in writing, and by that devised certain Land to the youngest Daughter in taile, the Remainder to the Eldest Daughter in taile, the Remainder to the middlemost daughter in taile, with Proviso, that if my sayd daughters or any of them, or any other Person or per∣sons before enamed, to whom any estate of Inheritance in possession or Remainder, of, in, or to the said Lands, limited or appointed by this my last Will and Testament, or to the Heires before mentioned of them or any of them, shall joyntly or severally by themselves, or to∣gether with any other, willingly, apparently, and advisedly, conclude and agree, to or for the doing or execution of any Act or Devise whereby or wherewith the said Premises so to them intailed as aforesaid, or any part or parcell thereof, or any estate or Remainder thereof, shall or may by any way or means be discontinued, alie∣ned or put away from such person or persons and their Heires, or any of them, contrary to mine intent and meaning in this my Will, other∣wise then for a Joynture, or shall willingly or advisedly commit or do any act or thing, whereby the premises or any part thereof, shall not or may not discend, remaine, or come to such persons, and in such sort and order, as I have before limited and appointed by this my last Will and Testament, then I will limit, declare, and appoint, that then my said Daughter or Daughters, or other the said person or persons before named, and every of them, so concluding and agreeing, to or for the doing or execution of any such act or Devise as is afore∣said, shall immediately from and after such concluding and agreeing loose and forfeit, and be utterly barred and excluded of and from

all and every such Estate, Remainder, and benefit, as shee or they, or any of them should, might, or ought justly, to have, claime, Challenge, and demand, of, in, or to so much thereof, as such conclusion or agreement shall extend unto or concern, in such manner and forme, as if she or they, or any of them, had not been named nor mentioned in this my last Will and Testament, and that the Estate of such person, &c. shall cease and determine, &c. And after that the youngest Daughter tooke a Husband, and then shee and her Husband concluded and agreed to suffer a Recovery, and so to barr the Remainder, and upon that the Plaintiff being the eldest Daughter entred, and upon the Entry brought this Action: And Harris Serjeant argued for the Defendant, that this shall be a condi∣on and not a limitation, and he said that Mews and Scholiasticas Case is not adjudged against him, see the Commentaries, 412. b. And it shall be taken strictly, for that, that it comes in Defesans of the Estate, and then admitting it is a condition it is not broken, for this conclusion and agreement is only the agreement of the Hus∣band, and though that the Wife be joyned, yet be that for her benefit or prejudice, that shall be intended only the Act of the Hus∣band, and he only shall be charged, as in the 48 Ed. 3, 18. Husband and Wife joyne in Contract, and the Husband only brings Action upon that, and 45 Ed. 3. 11. Husband and Wife joyne in Covenant, and the Action was brought against them both, and it was abated, for that shall charge the Husband only, 24 Ed. 3. 38 The Husband and the Wife joyne in an Action upon the Statute of Laborers, and the Writ abated, and so in cases of Free-hold, as 15 Ed. 4. 29. b. The Husband and the Wife being Tenants for life, joyne in praying aid of a stranger, and this shall be no forfeiture of the Estate of the Wife, and 48 Ed. 3. 12. a. Statute Merchant was made to the hus∣band and Wife and they joyned in Defeasans, that shall not be Defeasans of the Wife, and 28 H. 8. Dyer 6. The Husband of the Wife Executrix, aliens the Tearme which was let to the Testator upon condition, that he or his Executors should not alien, and by Baldwin by the alienation of the Husband the Condition was not broken, for it was out of the words, so here the agreement and con∣clusion being made by Husband and Wife shall be intended the Act of the Husband only, and so out of the Words, and by consequence, out of the intent of the Condition, and shall be taken strictly, but he seemed that the Condition shall be void, for the Words (conclude and agree) are words uncertain, for what shall be said conclusion and agreement within the said Provision, and for that as it seemes it is so uncertain as going about, but admitting that it is good, yet it shall be good but to some purpose, but not to restraine the Daughter which was Tenant in taile, to do lawfull Acts, as to suf∣fer

a Recovery, or to levy a Fine, as it is resolved in Mildmayes case, 6 Coke 40. By which it appears that she hath as well power to dis∣pose that by Recovery as of Fee simple, notwithstanding that the Reversion remaines in the Giver, as it appears by 12 Ed. 4. 3. For all lawfull Acts made by Tenant in taile shall binde the Issue, as 44 Ed. 3. Octavian Lumbards Case, Grant of Rent for Release of right is good, and shall binde the Issue, for there are foure incidents to an Estate tayle, First, That he shall not be punished for Waste. Secondly, That his Wife shall be indowed. Thirdly, That the Husband of the Wife Tenant in Tayle, shall be Tenant by the Cour∣tisie. Fourthly, That Tenant in Tayle may suffer common recovery. So that a Condition which restraines him so that he cannot suffer a common Recovery is void, for it is incident to his act, and it is a lawful Act, and for the benefit of the Issue as it is intended, in respect of the intended recompence, and he said that a Feoffment to a woman co∣vert or infant, shall be conditionall, that they shall not make a Feoffment during their disability, is good, for that the Law hath then made them disable to make a Feoffment, so a Lease for life or years upon condition that he shall not alien, is good, in respect of the confidence that was reposed in them by the Lessor, and so con∣cluded that the Condition in this Case which restraines Tenant in Taile generally from alienation. First, was uncertain in respect of the words (conclude and agree) Secondly for that it was against Law & so void, and for that prayed Judgment for the Defendant.

Hutton Serjeant for the Plaintiff, he argued that the verball agreement of the Wife shall bind her, notwithstanding the Coverture, for that, that this is for her benefit, for in performance of the said agreement, she suffers a recovery to the use of her selfe and her Heires, and so Dockes the remainder, and he agreed the cases put by the other part which concerne free-hold, but he said in cases of Limitation of Estates, as if Limitation be, if a Ring be tendred by a woman that the Land shall remaine to her, and she takes a Husband, and after that she and the Husband tender the Ring, this shall be sufficient tender, and it shall be intended the Act▪ of the wife, and 10. H 7. 20. a. A man devises his Lands to a married woman to be sold, she may sell them to her Husband; And though that it be not any agreement of the Hus∣band only, yet here is an act done, in a Precipe brought against the Wife, and she vouches over, for that is not only an agreement, but an Act executed, upon which the Estate Limited to the eldest Sister shall take effect, and the 2. Coke the 27. a. Beckwiths Case. If the Husband and the Wife, joyne in a Fine of Land of the Wife, the Wife only without the Husband may declare the use of that. And he intended it was a Limitation and not a condition,

and so it might be well at this day in case of devise, and then the Act shall be, that the Estate is Limited to have beginning, being made the Estate of the youngest Daughter which made the Act, shall be destroyed and determined, for if it be a condition, then all the Daughters shall take advantage of that, and this was not the intent of the Devisor, for they are the parties which should be restrained by the devise from Alienation. And also he cited Wenlocke and Hamonds Case cited in Bractons Case, 3. Coke 20. b. Where a Copy-holder in fee of Lands devisable in Burrough English, having three Sons and a Daughter, deviseth his Lands to his eldest Son, paying to his Daughter and to his other Sons forty shillings within two yeares after his death, the Devisor maketh surrender according to the use of his Will and dieth, the eldest Son admitted, and doth not pay the money within the two yeares, and adjudged that though the word paiment makes a condition, yet in this case of devise the Law construes that to a Limitation, and the reason is there given to be, for that, that is, it shall be a condition, then that shall discend upon the eldest Son, and then it stands at his pleasure, if the Brothers or Sister shall be paid, or not, and 29. Assis. 17. cytes in Nourse and Scholasticas Case, Commentaries 412. b. where a man seised of Lands in Fee devisable, deviseth them to one for life, and that he should be Chapleine and single for his Soule all his life, so that after his decease, the sayd tene∣ments should remaine to the Commonalty of the same Towne, to finde a Chapleine perpetuall for the same Tenements, and dyed, and adjudged that this shall not be a condition of which the heir shal take advantage, but limitation upon which the remainder shall take effect; and also he cyted S. E. Cl••ers Case, 6 Coke 18. a. b. & 11 H. 7. 17. & Pen∣nants Case, 3 Coke 65. a. That if a man makes a Lease for years, upon a condition to cease, that after the condition is broken, grantee of rever∣sion may take advantage of that; so he said in the case at the Bar, when the first Estate is determined and destroyed by the limitation, then he to whom the Remainder is limited shall take advantage of that, and not the Heire, for as he intended an Estate of Inheritance may as well cease by limitation of devise as tearme, as in 15 Ed. 4. Lands are given to one so long as he hath heires of his body, the remainder over, and if he dye without heires of his body, the remainder over shall vest without entry, and the Free-hold shall vest in him; and 2▪ and 3. Phil. and Mary, Dyer 127. and 56. Fisher and Warrens Case.

If a man devise Lands to one for life, the remainder over upon condition that if he do such an act that his estate shal cease, and he in remainder may immediately enter, there he in remainder shall take advantage though he be a stranger, for that that the Estate deter∣mines

there without re-entry: And he saith, that the Case of Wel∣lock and Hamond, cyted in Barastons Case, was a stronger Case then this, for there the limitation was upon Fee-simple, and here it is up∣on an Estate tayle; and the Law hath favourable respect to devises, as in Barastones Case, is alteration of words for the better exposition of that, for Shall is altered to Should; and also see 16 Eliz. Dyer 335. 29. for the marshalling of absurd words in a Will for the ex∣pounding of that; and 18 Eliz. Cheekes Case, he cyted to be ad∣judged, that if a man devise his Lands to his Wife, and after her death to his Son, and the remainder to his sayd Wife in Fee-simple, the Husband of the Wife having Issue, shall not be Tenant by the Curtesie, for alwayes the Judges have made such favourable con∣struction of Wills, that if Estates devised by Will might be created by act executed in the life of the party, then it should be good by devise; and to the objection (that conclusion and agreement is un∣certaine, and so for that shall be voyd; he saith that it is not so uncer∣taine, as going about, or resolve and determine an attempt or pro∣cure, as in Corbets Case, first of Coke 83. b. or as attempt or endea∣vour, as in Germins and Arscotts Case there cyted, fol. 285. a. See 6 Coke 40. a. Mildmayes Case, and also the words subsequent are re∣pugnant, that the Estate tayle shall cease, as if the Tenant in tayle were dead, and not otherwise, which is absurd and repugnant, for the Estate tayle doth not determine by his death, if he doe not dye without Issue: And also he sayd, that it is more reasonable that the perpetuity in Scholasticas Case, for here the limitation depends up∣on agreement, which is a thing certaine, upon which the Issue may be joyned; and also the condition doth stand with the nature of the Estate tayle, and for the preservation of it; and Recovery is against the nature of it, for this destroyes the Estate tayle, and is onely a consequent of it, and not parcell of the nature of the Estate, and this is the reason that Littleton saith, That an Estate tayle upon con∣dition that he should not alien, is good, for that preserves the Estate, and also preserves Formedon for him in reversion, if there be a discon∣tinuance; and with that agreed 13 H. 7. 23. 24. and he sayd, that there was a Judgement in the point for his Clyent for another part of the Land, and he cyted 31 Edw. 5. Fitz. Feoffment placito the last, and Fitzherberts Natura brevium (Ex gravi querela) last Case; and so concluded and prayed judgement for the Plaintiff; and this Case was argued againe by Shirley Serjeant for the Defendant, and he intended that the agreement is voyd to the Wife, and shall be in∣tended the agreement of the Husband onely, for a marryed Wife cannot countermand Livery, 21 Assis. 25. and if a Woman makes a Feoffment upon condition to enfeoff upon request made by her, and she takes a Husband, she cannot make request after coverture, 35 As∣sisarum:

So that he intended that this shall be intended the agree∣ment of the Husband onely, and not of the Wife, and yet he argued that Declaration of a use by a marryed Wife, shall be good, according to Beckwiths Case: But he sayd, That the reason of that is, for that that she is party to the Recovery, which is a matter of Record, and as long as the Record remaines in force, so long the De∣claration of the use shall be good; and also he argued, that if the con∣dition being, that if the Wife conclude or agree to any act to make discontinuance, that then, &c. that that shall be intended unlawfull acts, and Recovery is no unlawfull act, and for that shall not be with∣in the restraint of the Condition, as the Earl of Arundels Case, 17 Eliz. Dyer 343. and admitting that it is a limitation, yet it shall be of the same nature as a condition, and as well as a condition, that Tenant in tayle shall not suffer Recovery, is voyd.

So also is such Limitation void, and so it was intended before the Statute of Donis Conditionalibus and it appeares by the pleading, that the parties did not intend to take advantage of the agreement, for it is pleaded that at the time of the Recovery suffered, the youn∣gest Daughter was seised of an estate tayl, the which could not be if her estate were determined and destroyed by the (agreement and conclusion) so that the last words make the Forfeyture; for the first are not unlawfull, and before the execution of the Recovery the estate tayl is determined, and so he concluded, and praied Judgement for the Defendant, Barker Serjeant argued for the Plaintiff; It shall be intended a Limitation and not a con∣dition, for a Will shall have favorable construction according to the intent of the Devisor, for a Joyntenant may devise to his Companion, 49. Ed. 3. and Fitz. Na. Bre. Ex gravi querela, last case. A man devises Land to his Wife for life upon condition, that if he marry, that it should remain over to his Son in tayl, and the Wife marries, and the Son in remainder sues (Ex Gravi querela) by which it appeares that it was a Limitation and not a condition, and 34, Ed. 3. devise was to one for life upon condition that if his Sonn disturbed him, that then it should remaine over in taile, upon disturbance; he in Remainder in tail brings Formedon, by which it appears it was a Limitation, and with that agrees all the Justices in 29 Assisarum 17. And Wellock and Hamonds Case cited in Barastons Case before, and 18. Eliz. Dyer If Land be limited to no third person by the Devise, then the Heir shall enter for breaking the condition, and also he said, that it appears by Little∣ton, and 13 H. 7 23. and 24, and 20 H. 7. and 17 Eliz. 343. the Earle of Arundells, case which conditioneth that Tenant in taile shall not alien, standeth with his Estate, but not with Fee simple, and so it is adjudged in Nowes and Scholasticas Case, which is ad∣judged

in the point, which as he saith cannot be answered, and the Words of the Condition are not that her Estate taile shall cease as if shee had been dead, but as if she had not been named, which is not so repugnant or absurd as the other, and this compared to 34 Ed, 3. Where the Estate was limited till it was disturbed.

And he also argued, that the agreement of the Wife shall be a for∣feiture notwithstanding the coverture, for when the Estate is grant∣ed upon such condition, he which hath the estate shall take it sub∣ject to the condition; as if two Lessees are, and one Seals the Coun∣terpart onely, yet the other shall be bound by the Covenants con∣tained in it; and 33 H. 6. 31. a Woman disavows to be Executor, notwithstanding that shee was marryed, and if Precipe had been brought against the Husband and Wife, the default of the Husband shall binde the Wife, and so she shall be punished for waste made during the coverture, and so concluded, and prayed judgement for the Plaintiff: Foster Justice, that an Estate of Free-hold shall not cease by agreement or conclusion without entry, for it is a matter of Inheritance and Free-hold, and it is not like to 33 H. 6. 31. which concerns Chattels and Goods; and Walmesley Justice accorded with him: Warburton Justice, it hath been adjudged in Scholasticas Case, that the condition was good, and therefore he would not deliver his opinion without argument; Coke cheif Justice, that the agreement is void to a Woman married, for then she was married to a Hus∣band, whom in her life she could not contradict, and a Devise up∣on Condition, that if she conclude or agree, as this Case is, is void, for it is a bare communication, upon which the Inheritance doth not depend, and so he said, it hath been twice adjudged, 6 in Corbets Case, and Germins Case, and Arscots Case, and Ri∣chells Case in Littleton, it was upon condition that he should not alien, and this was adjudged to be void; but yet if the condition were if he alien, and not if go about or intend, or conclude, or agree as in the case at the Bar, for there is no such case in all our Bookes as this.

Secondly, For that, that the Words are, if they do any act, that then the Estate shall cease, and this is repugnant, for when the Act is done, then the Estate tayle is Barred, and cannot cease, but if it had been but a Feoffment, then the right had remained, and he said that such a condition had been void before the Statute of Donis Conditionalibus, when it was but Fee simple Conditionall, be it a Condition or a Limitation, and he said that Scholasticas Case is of Fine which is only discontinuance till the Proclamations are past, and if dead before may be avoided by Remitter, in Germins and Ars∣cotts Case, the Condition was, that if he go about or indeavour, and this was adjudged to be void, though that it be in devise in re∣spect

of the uncertainty, and he said that the (agreement or conclu∣sion) is so uncertain, and may be well compared to that, for here the Estate shall cease by the agreement, as well as it may cease by the going about, also he seemed that the Freehold cannot cease without entry, for if use cannot cease without entry as he intends, much lesse a Free-hold cannot, though it be by Devise, and he seemed that it shall be no limitation, but a Condition, and Judg∣ment accordingly, if cause be not shewed the next Tearm, and in Trinity Tearme then next insuing this Case was argued againe by Dodridge Serjeant of the King for the Plaintiff, and he said that there are three questions to be disputed. First, If it be a good limi∣tation. Secondly, If the recovery be a breach of that. Thirdly, Admitting that it may be broken, if the agreement of the Husband and the wife shall be said to breake it, and to the first he seemed that it is a limitation and not a condition, and such a Limitation that well might be with the Law, and that it is a Limitation it is a∣greed in Scholasticas Case, Commentaries, and the reason of the Judgment there is, that if the intent of the Devisor appears, that a∣nother shall take benefit of that and not the Heire, that then it shall be but a limitation and not a Condition, and he in remainder shall take benefit of that, and for that in the principall case Mary the Eldest Daughter, to whom the Remainder was limited, shall take benefit of that, and with this agrees the case of Fitz. Na. Bre. Ex gravi querela last case, that if a man devises Lands to his Wife for life, upon condition that if she marry that the Land shall remain over, and after she marryes, and he in Remainder sues by (Gravi quere∣la) by which it appears that it is a limitation and not a condition, and with this agrees 2. and 3. P. and M. 127. Dyer, Jasper Warrens Case, where a man devises land to his Wife for life, upon conditi∣on to bring up his Sonn, Remainder over, and agreed to be a limi∣tation and not a condition, and so he concluded this first point, that it is a limitation and not a condition. Secondly, that it is a lawfull li∣mitation, for there is not any repugnancy in that, as it is in Corebts be∣fore cited, for there are no words of going about, for he agreed that this is absolutely uncertain and void, and so is Germin & Arscots case, where ther is not only a going about, but repugnant going about for he ought to go about and before discontinuance, and then his E∣state shall be void from the time of the going about and before dis∣continuance, but here it is upon (conclude and agree) plainly and apparently, and conclude and agree is issuable, and a Jury may try that, and it will not invegle any man, but the Law will not suffer Issue upon such uncertainty as going about or purposing, but Attor∣nements and Surrenders are but agreements, and yet are Issuable: And so in the principall case, and in Mildmayes Case 6 Coke it is a∣greed

that a condition that a Tenant in taile shall not suffer a Reco∣very is void, for Recovery is not restrained by the Statute of West∣minster 2. but here it is not so but in generall, that he shall not con∣clude or agree to alien or discontinue, but that which cannot be a condition good in the particular, may be good in the generall, as Littletons Case, gift in taile upon condition that he should not ali∣en is good, otherwise of Fee simple, with which 10 H. 7. 11. and 13 H. 7. 23. 24. accordingly.

Thirdly, That it is a breach of the limitation, Condition, that alienation and discontinuance be by Recovery, which is a lawfull act, and it is a priviledge incident to the Estate taile, and though that the agreement was made by the Husband and the Wife during the Coverture, and so should be if the Husband and the Wife had levi∣ed a Fine, see 10 H. 7, 13. Condition, that if the condition had been expressed that they should not levy a Fine had been void, and here this verball agreement betwixt the Husband and the Wife and the third person shall be for Forfeiture of their Estates, for this is the agreement of the Wife as well as of the Husband, as it appears by Becwithes Case 2. Coke before cited, where the Husband and the Wife agree to levy a Fine, and that the Fine shall be to the use of the Connusee, this is good declaration of the use, though that it be of the Land of the Wife and during the Coverture, and cannot be avoided by the Wife after the death of her Husband, for it was the agreement of the Wife, though it be not by any Indenture to de∣clare the use of the Fine, so many acts in the Country made by the Husband and the Wife, shall be intended the act of the Wife, as well as of the Husband, as in the 17 Ed. 3. 9. The Abbot of Peter∣boroughs Case, the Husband and Wife granted Rent for equality of partition, and this shall binde the Wife after the death of the Hus∣band, for it is her act as well as the act of the Husband, and shall be intended for her benefit, and so here by the Recovery the Wife shall be Tenant in Fee simple, which was Tenant in taile before, and 34 Ed. 3. 42. feoffment to a married Wife upon condition to re-enfeoff, and she with her Husband makes the re-enfeoffment it is good; so a Woman being Lessee for Life, and with her Husband attorn upon a Grant of Reversion, is good, and shall binde the Wife after the Death of the Husband, 3 Ed. 3. 42. 4 Ed. 3. Attornment 12. 15 Ed. 3. Attornment, also this Estate was made to the Wife when she was sole, and for that it shall be accounted her folly, that she would take such a Husband that would forfeit her Estate, but with that agreed the reason of the Booke of 20 H. 6. 28. Where a woman Tenant was bound by the ceasing of her Husband, and so he concluded and prayed Judgment for the Plaintiff, and so it was ad∣journed, see another argument of this case in Michaelmas Tearm 9. Jacobi 1611. by Haughton and Nicholls Serjeants.

Pasch. 9. Jacobi, 1611. In the Common Bench. Pitts against Dowse.

IN an Ejectione firme upon not guilty pleaded, The Case was this, * 1.41 A man makes his Will, by these words, I bequeath all my Lands to my Son Richard, except my Chauntery Lands. And I devise all my Chauntery Lands to be devided amongst all my Children, men and women alike, except my Son Richard. And if Richard die without Issue, the remainder to A. My second Son, the remainder to B. My third Son, the remainder to C. My fourth Son, the remainder to my next of blood, and so from Heire to Heire. And so likewise I would to be done upon my Chauntery Lands and Tene∣ments, in case all my aforesaid Children die without Issue. Then I would the one halfe of my Chauntery Lands to remaine to the next of kin, and the other half to the Hospitall of M. And the questi∣on was, what estate the Heire of the eldest Son shall have in the Chauntery Lands, and it was argued by Dodridge the Kings Serjeant, that the Heire of the eldest Son shall have estate tayl in the Chauntery Lands, the Devisor devises no estate to Richard his eldest Son in the Chauntery Lands, nor limitts any estate of that in certaine, and for that he seemed that the youngest Sons and Daughters shall be Tenants in Common for life, and by this man∣ner of Interpretation, every part of the Will shall be, for first he excludes Richard himselfe, so that he shall have nothing in that, and then by the Limitation to the younger Children to be equally divided between them, makes them Tenants in Common, see 28. H. 8. 25. Dyer 155. And he cited Lewin and Coxes Case, to be adjudged, Michaelmasse 41. and 42. of Eliz. Pasche 42. Eliz. Rot. 207. Where a man devises Lands to his two Sons to be equally divided, and adjudged that they are Tenants in Common; so devise to two part and part like, and equally divided, and equally to be divided is all one, and for that there is no other words to make an estate of Inheritance, it shall be an estate for life, and the remainder shall be directed according to the estates limited of the other Land. And he seemed that the words in the last sentence, all my aforesaid Children, shall extend to Richard his eldest Son, as well as to the others, and so all the Will shall stand in his force, which may be Objected that Richard the eldest Son shall be exclu∣ded out of the Possession, and for that see 6. Eliz. Dyer. 333. 29. Chapmans Case, and also he cited one case to be adjudg∣ed, Trinity 37. Eliz. Rot. 632. betweene Bedford and Vernam, where a man deviseth all his lands in Alworth, and afterwards pur∣chaseth

other Lands in the same Town, and afterwards one comes to him to take a Lease of this Land newly purchased, which the Testator refused to Let. And said, that these Lands newly purcha∣sed should goe as his other Lands. And upon his Death bed adds a Codycell to his Will, but saith nothing of his purchased Lands, and adjudged that the purchased Lands shall passe, and so con∣cluded and praied Judgement: Harris Serjeant, that it is a new Sentence, and Richard is excluded and it shall be a good Estate tayl to the youngest Children, and foresayd Children shall be intended them to which the Chauntery Lands are limited, see Rat∣cliffes case 3. of Coke adjudged, that they shall be Tenants in Common by the devise to he equally divided, and thall not be surviving, but every youngest Children shall have his part in tayl, though that the first words do not containe words of Inheritance, yet the last words, in case all my Children die without Issue, de∣clares his intent that they should have an estate tayl, see the 16. of Eliz. Dyer 339. 20. Claches Case, that when he hath disposed of part devised to Richard, then disposeth of the residue, and the sentence begins with (And so likewise) and that shall be in∣tended in the same manner as he had disposed of the Lands devised to Richard, for he hath devised the remainder otherwise, that is, to an Hospitall, and so concludes and praies Judgement according∣ly, Coke cheife Justice saith, that it was adjudged between Coke and Petwiches 29. Eliz. that if a man devise a house to his eldest Son in tayl, and another house to his second Son in tayl, and the third house to the third Son in tayl, and if any of them die with∣out Issue, the remainder to the other two equally, this shall be but for life, for this enures to the quantity of the Land, and not to the quality of the Estate: And he said that Richard is excepted without question, for it is but a Will, and every of the youngest Sons therein shall have the Chauntery Land one after another, and Richard shall have no part, and the Chauntery shall have nothing till they all are dead, and he likened that to Frenchams Case, where Lands were given to one and to his Heires Males, and if he died without Issue, the remainder over, the Issues Fe∣males shall not take, though that it be if they die without Issue, for expresse it makes to cease only, and so it was adjourn∣ed.

Petoes Case.

PEto suffers a common Recovery, to the use of himselfe for life, the remainder to his eldest Son in tayl, with diverse re∣mainders * 1.42 over, to the intent that such Annuities should be paid

as he by his last Will or by grant declares, so that they did not exceed the summ of sixty pound, and if any of the said Rents be behind, then to the use of him to whom the Rent shall be behind, till the Rent be satisfied with clause of distresse: Rent of twenty pound was granted to his youngest Son for his life, the grantee distraines for the Rent, and in Replevin avowes, the Plaintiffe repl••es, that by the non-paiment the use riseth to the youngest Son, by which it was objected that the Rent shall be suspended; Quere if without demand, or if the distresse shall be demanded, or that the use shall not rise till after the distresse, and to the distresse well taken, and agreed by all that the Plaintiff shall take nothing by his Writ, and that the eldest Brother hath nothing in the Land.

Judgement was had against a Defendant in Debt, and Capias to * 1.43 satisfie awarded, and (Non est inventus) returned, and Scire facias awarded against the Bayl, and upon the first Scire facias, the principall Defendant yeelds his Body in execution, and it was very good, for before that the Bayl had no day in Court, and in the Kings Bench if the Defendant yeelds his Body upon the second Scire facias it shall be accepted; And if a man be Bayl upon a Writ of Error, if the Judgement shall not be reversed, he shall be in execution againe: It was objected by Hutton Serjeant, that the Scire facias is against the Bayl, to know why the execution shall not be awarded against the Bayl, and that ought to be de∣livered to the Sheiriff, before the day of the returne, or other∣wise it shall be Erroniously awarded, and then the party may yeeld his Body to Prison at any time, and discharge his Bayl, and agreed that Bayl in this Court may be released.

Accompt doth not lie for any sum certaine. * 1.44

Pasch. 9. Jacobi 1611, in the Common Bench. John Reyner against Powell. See Hillary 8. Jacobi, 136.

HAughton Serjeant argued, that there shall be a good Estate tayl of a Copy-hold, and that by the custome after the making of the Statute of Westminster 2. And he agreed that at the Com∣mon Law, all estates were Fee simple absolute or conditionall, and that the estates tayl were created by the Statute of Westminster 2. And do not exclude customary estates, as it appeares by Little∣ton, who saith, that Tenant at will by copy of Court Roll by custome may be in Fee simple, and so of estate tayl, and with this agrees many other Authors, 15 H. 8. b. Tenant by Copy-hold of Court Roll resolved in the point, and that a Formedon in the discender lieth for

that, and as the Statute of Westminster 2. divides estate tayl and Fee simple, So may custome of a Mannor as well as custome make an estate at will, which is personall and determines by the death of any of the parties to discend, and as well as the custome of Lon∣don (of not moving things fixed) is created by custome, as well may Formedon be created by Custome, and also the Statute is, that gives Cui in vita, extends to a Copy-hold, so the Statute of Li∣mitation, as it appeares by Brooke, Limitation, 5 Ed. 6. And with this agrees also Heydons Case, and though that the words are, Vo∣luntas Donatoris in the Charter, &c. Yet the estate tayl may be created by devise. So that the Statute shall not have such literall construction, and as well as a Lease for a hundred yeares may be within the Statute of 11. H. 7. Which speakes only of discon∣tinuances, as it appeares by Sir George Brownes Case, 3. Coke, So may a Copy-hold estate which is but an estate at will be within the Statute of Westminster 2. and it is confest by the other part, by pleading that he was seised in tayl according to the custome of the Mannor, and it is not pleaded that he had Issue at the time of the Alienation, and the other party claimed by the Alienation, the which was not good, if he had no Issue at the time of that if he had but Fee simple conditionall, and so concluded and praied Judgement, &c.

Dodridge Serjeant of the king saith, that the reputation of the estate consists upon two parts, first the name, secondly the nature of the estate tayl, and for both the makers of the Statute of West∣minster 2. bad no intention that this should extend to Copy-hold, and first for the name, which gives the being, he cited Fitz. Na∣tura Brevium. 12. C. where it is sayd, that Copy-Tenants, or Co∣py-holders, or Tenants by copy, is but a new Terme found, for of auncient times they were called Tenants in Villenage or of base te∣nure, as this also appeares by the old Tenures, by which it ap∣peares that then they were called and named Tenants, which held in Villenage or of base tenure, and Bracton, booke 2. chap. 8. in the end speakes of that, and calls them Villaines, Sokemaines, and that if such a Tenant will transfer his Tenement, let it be de∣livered into the hand of the Lord or his Steward, and he wrote immediately before the Statute of Westminster 2. and agreed with Fitz. Na. Bre. And also Bracton, booke 4. fol. 209. Saith, that such Tenants have used to Plow the Demesnes of the Lord, and calls and names them as before; and 4. Ed. 1. He is called Custo∣marius; So that Custome doth not make the certainty of his estate if he hath any, and he said that 42. Ed. 3. 25. is the first in Law; in which is any mention of these Lands, and there they are called Neists Lands, and 14 H. 4. 323. a. they are called Sokemaines by

base Tenure, and Lambert calles it Folkland, by which and severall names he saith, that the basenesse of the Estate appeares, And to the estate he saith that originally it was but at the will of the Lord, though that it be according to the Custome of the Mannor, So that the Lord cannot put him out if he performe the services. And the Register doth not respect him, for he hath not framed any Originall for him, to give him remedy by the Common Law, but only in the Court of the Lord, though that erronious Judge∣ment be given: Also he cannot prescribe but in the name of the Lord, as it appeares by 18. Ed. 3. Fitz. prescription, that such estates which are incident to Fee simple, as Dower, not Tenants by the Curtisie cannot be derived out of this without Custome, nor that warranted. So that his reputation appeares by his name and also by his nature: Also he intended that the makers of the Statute of Westminster 2, did not intend that the Statute should extend to this, for it is, Oppositum in Objecto, for Custome is without time of memory. And the Statute of Westminster 2. was made 13. Ed. 1. the beginning of which every one knowes. Also the Statute of Westminster 2. doth not extend to any Lands, but those which the Tenant might have aliened before the Statute. But the Copy-hol∣der had not any power to alien, for the Lord ought to be his In∣strument and hand, as Bracton saith, to alien, transfer he cannot, but by the hands of the Lord, and it must be restored to the Lord, the words of the Statute are, The will of the giver in the Charter, &c. So that the Statute intends such Lands which may passe by Deed and Fine, and devise his Deeds, and the Deed extends to them, for a Fine is Chirograph, and devise to be made by copy of Court Roll is not so, for that is only of Acts made in the Court of the Lord, it cannot be within the Statute, for Copy-hold ought to be held of the Lord, and Tenant in tayl shall hold of the giver, and so cannot a Copy-holder, which hath so base an estate. And if this shall be so, these mischeifes will insue. That is, that this base estate should be of better security, then any estate at the Com∣mon Law, for Fine shall not be a Barr of that, for it cannot be levied of that, also Recovery cannot be suffered of that, for there cannot be a Recovery in value neither of Lands at the Common Law, neither of Customary Lands, for they cannot be transferred but by the hands of the Lord.

And to Littleton he agreed, and also, 4 Ed. 2. which agrees with this, where it is said that at Steben••eath, a Surrender was of Copy-hold Lands to one and the Heires of his Body, but he said, that that shall not be an Estate taile, for then the Estate hath such ope∣ration, that this setles a Reversion and Tenure betwixt the Giver, and him to whom it is given, but this cannot be of Copy-hold Land,

for this cannot be held of any, but only of the Lord, and to the others, this Estate doth not lye in Tenure, and yet he agreed that of some things which did not lye in Tenure, Estate Tail may be, but Land may be intailed, but Copy-hold Estate is so base, that an E∣state tail cannot be derived out of it, so that though that custome may make an Estate to one and the Heires of his Body, yet this can∣not be an Estate taile but Fee-simple conditionall, and also he a∣greed that they might have Formedon in Discender, but it is the same Formedon, which was before the Statute, as if Tenant in Fee-simple conditionall before the Statute, would alien before issue, but it was no Estate taile, with the priviledges of an Estate taile before the Statute, and to the other matter of Surrender, that is the ad∣mittance of the parties which is an Estate taile, that doth not con∣clude the Court, as it appears by the Lord Barkleys Case in the Commentaries, where the Estate pleaded severally by the parties is not traversed by any of them, and so concludes, and prayes Judg∣ment, &c. And this case was argued again in Trinity Tearme next ensuing by Montague the Kings Serjeant for the Defendant, and he said, that there are three questions in the case.

First, If Copy-hold land may be intailed. Secondly, Admitting that it may be intailed, if Surrender makes discontinuance. Third∣ly, If it shall be Remitter; and to the first, he seemed that it might be intailed and that it shall be within the Statute of Westminster 2. And first for the Antiquity of that, he said that Littleton placed that amongst his Estates of Free-hold, and hath been time out of minde, and is a primitive Estate, and not derived out of the Estate of the Lord, and the Lord is not the Creator of that, but the means to convey that after that it is cerated, and what is created then shall have all the priviledges and Benefits which are incident to it, and shall be nursed by the custome, and is time out of minde, and the Law alwaies takes notice of it, and he cited, 24 H. 4. 323. by Hankf. Bracton, Fitz. Na. Bre. 12 C. and Brownes Case 4. Coke, which is not simply an Estate at the will of the Lord, but at the VVill of the Lord according to the custome of the Mannor, and when it hath gained the reputation of Free-hold, then it shall be dircted accor∣ding to the rules of the Common Law, and 2. and 3. P. and Ma. Dier 114. 60. allow Copy-hold Estate to be intailed, and he saith, That no Statute hath more liberall exposition then the Statute of Westminster 2. 45. Ed. 3. Incumbrance shall not charge the Issue in∣taile, also a Copy-holder shall have a Cui in vita, also a Copy-hold is within the Statute of Limitation; and so upon the Statute of buy∣ing of pretenced rights: And it is alway intended when a Statute speakes of Lands and Tenements, that Copy-hold Lands shall be within that: And he saith, That all the Objections which have been

made of the contrary part are answered in Heydons Case, but he relyed upon that, that every reall Inheritance is within the Statute of Westminster 2. 4 Ed. 2. Formedon lyeth of Copy-hold Land, 25 Ed. 3. 46. Estate tayle is of a Corrody and office, which proves, that Copy-hold is a reall Inheritance, and for that shall be within the Statute, 46 Ed. 3. 21. Gavelkinde Land may be intailed, 6 Rich. 2. Avowry 2. 8. Rich. 2. 26. Copy-holder shall be charged with Fees of a Knight at Parliament, 22 and 23. Eliz. Dier 373. 13. Lands in ancient Demesne were intayled, and he said that the reason is, that for that it is Inheritance and time hath applyed them to an E∣state, and so concluded, and prayed Judgment for the Defen∣dant.

Hutton Serjeant argued for the Plaintiff, that Copy-hold Lands cannot be intailed, for that is but a customary Estate; and the Law doth not take any notice of it, but onely according to Custome, for there were no Estates tayle before the Statute, for then all were Fee simple absolute or conditionall; that is, either implyed, or by limi∣tation, which cannot be of an Estate tayle, which is not within the Statute of Westminster 2. for no Actions are maintainable by that, but those which are by the Custome, and a Writ of false Judgment: See Fitzherberts Natura brevium, 12. 13 Ed. 3. F. Prescription 29. that it hath no Incidents, which are incident to Estates at the Com∣mon Law without Custome, as Dower: See Revetts Case, and so is Tenancy by the Curtesie, and there shall be no discent of that to take away Entry, and so of other derivatives: And he seemed that it is not within the Statute for three reasons apparent within the Statute.

First, That it is hard that Givers shall be barred of their reversions; but in case of Copy-holds, the Giver hath no remedy to compell the Lord to admit him after the Estate tayle spent, but onely Subpena, and in this Case the Lord may releive himselfe for the losse of his services, for that the Statute provides no remedy for him.

Secondly, That the Statute doth not intend any Lands, but those of which there is actuall reversion or remainder, and those which passe by Deed; so that the will of the Giver expressed in the Char∣ter, may be observed, and of which there may be a subdivision, as Lord, Mesne, and Tenant, for there shall be alwayes a reversion of the Estate tayle, and the Donee shall hold of the Donor and not of the Lord.

Also it seems that the Statute doth not intend to provide for any, but those for whom the VVrit in the Formedon ordained by the Sta∣tute lyes, and agreed that for Offices and such like, Formedon lyeth, if the party will admit Estate tayle to be discontinued.

Also the Statute intends those things, of which a Fine may be levy∣ed, for the Statute provides, that (the Fine in his owne right should

be nothing) but by Copy-holder Fine cannot be levied, and for that he shall not be within the Statute, and if the Words do not extend to that, then the Equity of the Statute shall not extend to that, and he said that Copy-hold is not within any of the Statutes, which are made in the same yeare, as the Statute which gives Ele∣git, and such like, and to Littleton that an Estate by copy, is where Lands are given in Fee-simple, Fee-taile, and that Formedon lies for that with which agrees 10 Ed. 2. Formedon 55. It seems that the Estate taile here mentioned, shall be intended Fee-simple con∣ditionall at the Common Law, and the Formedon in Discender which was at the Common Law, for alienation before Issue: And so Littleton shall be intended, For the Estate is within time of memo∣ry; see Heydons case, that a Copy-hold Estate is an Estate in be∣ing within the Statute of 31 H. 8. And Manwood there said, that in∣somuch the Estate of that is created by custome, and the Estate taile is created by Statute, yet it shall not be within the Statute, and he said that the case of 15 H. 8. B. Copy of Court 24. is repugnant in it self in the words of Formedon, for he saith, though that Forme∣don was given by Statute, and was no otherwise in Discender, yet now this Writ lies at the Common Law, and it shall be intended, that this hath been a custome there, time out of minde, &c. And so he concluded, and prayed Judgment for the Plaintiff.

Pasche 9. Jacobi 1611. in the Common Bench. Yet Bearblock and Read.

SEE the beginning before Hillary 8. Jacobi, this Case was argued * 1.45 by Hutton Serjeant, that the Plaintiff in the Action of Debt ought to Recover, for if Executor may pay Debt due by the Testator by Obligation, before Debt due by Judgement, this shall be a (Devastavit) as it is resolved in Trewinyards Case, 6. and 7. Edward 6. Dyer 80. 53. And he shall be charged for the Iudgement with his owne goods. And so it was adjudged between Bond and Hales 31. Eliz. that Judgement at the Com∣mon Law shall be first satisfied before the Statute, which is but a Pockett Record, and Medium redditer in invitum. Also it was adjudged in Harrisons Case, 5. Coke 28. b. That Debt due upon an Obligation shall be first payd before Statute with Defeasans for performing of Covenants, the which Defeasens is not broken, and also it is adjudged between Pemberton and Barkham here cited, that Judgement shall be satisfied before Statute Merchant or Staple or Recognizance, though that the Statute be acknowledged before the Judgement had by the Testator. See this Case in Harrisons

Case, 5. Coke 28. b. and in 4. Coke 60. a. Sadlers Case, upon which he infers, that if an Executor first satisfie a Statute or a Recognisance before a Judgement, that this shall be a Devastavit, as well as if he satisfies an Obligation, first as in Trewynyards Case, and that when the Plaintiff which hath Judgement, the Executor may aid him∣selfe by Audit a querela by this matter subsequent: Quere of Doctor Druryes Case, as in 7 H. 6. 42. in Detinue against Gamishe, and Judg∣ment had for the Plaintiff. If the Judgement be reversed, restitu∣tion shall be made to every one which hath losse. So here by Audita Querela, if the Executrix hath not more then was taken in execution by the Statute, and it seemes to him that the Judgement in the Scire Facias shall not be a Barr in this Action, for the Judgment remaines, Executrix and the Plaintiff may have Action of Debt upon that. But of the contrary, if the Plaintiff had brought Acti∣on of Debt upon the Judgement and had been barred, then shall be barred in Scire Facias also; But the Plaintiff this notwithstanding, may have Scire Facias upon surmise, that there are new assets, come to the hands of the Executor, and so he concluded and praied Judgement for the Plaintiff. Nicholls Serjeant for the Defendant relies only upon the Judgement had upon the Scire Facias, and that till that he Defeated, the Plaintiff cannot maintaine Action of Debt, for the Action of Debt is nothing but demanding of Execution, and for that till the first Judgement be Defeated the Plaintiff hath no remedy at the Common Law. All things which barr the Execution of the Judgement in Scire Facias, these shall be Barrs in an Action of Debt, as in Baxters Case here last adjudged, in an Action upon the Case for slanderous words, the Defendant pleads that he had justified the speaking of these words, at an∣other time in another Action brought against him, and had a ver∣dict and Judgement upon that, and so demands Judgement, and ad∣judged a good Plea, till the first Judgement is reversed, for Judge∣ment is the saying of the Law, and 13. Eliz. Dyer 299. 34. in Debt for Costs recovered in a Writ of entry, the Defendant pleads that the Plaintiff hath sued an Elegit, which was Executed, and a good Barr in an Action of Debt, and so 1. and 2. P. and M. Dyer 107. 24. In Debt for Dammages recovered in Assise, the Defendant pleads in Barr, that after the verdict given and before Judgement, the Plaintiff entred into the Land, and there no Judgement is given. But it seemes if the Plaintiff fayl of Course that the Common Law prescribes, that then he shall not have Execution, (for of those things which rightly are Acted let there be Execu∣tions) but if the Defendant in the first Action had pleaded a re∣lease, and Judgement was given upon that against him, he can∣not plead that againe, (for it runs into the thing Judged,) 34.

Ed. 3. in Debt against an Executor, and part of the assetts found, the Plaintiff cannot have new Scire Facias without Averrment that there are new assetts, and 34. H. 6. Action with a∣verment that there are assets, and Judgement good both waies, and presidents shewed of both Courts. And he intended that the Executor could not have helped himselfe by Audita Querela, unlesse he feares to be impleaded, but after Execution he cannot have Restitution, and so concluded and praied Judgement for the Defendant. Coke cheife Justice, that there cannot be a Devastavit in the Wife, unlesse that it be voluntary payment by her, for the Statute of 23. H. 8. gives present Execution of a Statute Staple without Scire Facias. So that the Wife had no time to plead the Judgement, and for that this unvoluntary Act, shall not be a De∣vastavit, for she is no agent, but only a sufferer. And at the Common Law if the Plaintiff hath Judgement in an Action of Debt after the yeare he hath no remedy, but new Originall, and this mischeife was remedied by the Statute of Magna Charta, which gives Scire Facias in place of new Action. But it seemes to him that the Barr in the Scire Facias shall remaine good Barr, till it be re∣versed, as in 2 Rich. 3. A man hath election to have action of De∣tinue, or action of Trespasse, and he brings his action of Detinue, and the Plaintiff wages his Law, and after brings an action of Tres∣passe, and the first Nonsuit pleaded in Barr, and adjudged a good Barr, 12 Edw. 4. accordingly: Foster, Walmesley, and Warburton, agreed without any doubt, but they sayd, that if the first execution had been had by Covin, then it should have been otherwise.

In Debt upon buying of diverse severall things, the Defendant▪ * 1.46 confesseth part, and for the residue the action being brought by an Executor in the Detinet onely, the Defendant pleads, he oweth him nothing; and upon this Tryall was had, and Verdict for the Plain∣tiff, and after Verdict it was moved, that this misjoyning of Issue was ayded by the Statute of Jeofailes; but it was resolved by all the Justices, that it was not ayded, for it was no misjoyning of the Issue, but no Issue at all; but if there had been Issue joyned, though that it were not upon the direct matter, yet this shall be ayded, and at the end the Plaintiff remitted the part that the Issue was joyned, and prayed Judgment for the residue, and this was granted, but if the Plaintiff had been nonsuited that would go to all.

Administrators during the minority had Judgment in debt, and * 1.47 before execution sued, the Executor came to his age of seventeen yeares, and how this execution shall be sued comes the question, for the power of the Administrator was determined by the attaining of age of 17. yeares by the Executor, and the Executor was not par∣ty to the Record, and for that he could not sue execution; but it

seems that the Executor may sue speciall Scire facias upon the Re∣cord, and so sue execution in his owne name: See 27 H. 8. 7. a.

Action upon the Case for these words (He hath stolne forty Staure * 1.48 of Lead (meaning Lead in Stauce) from the Minster, and re∣solved by all, that action doth not lye, for it shall be intended that the Lead was parcell of the Minster, and the (Innuendo) shall not helpe that.

Pasche 9. Jacobi 1611. In Common Bench Crane against Colepit.

THomas Crane Plaintiff in Replevin against Bartholemew Colepit, * 1.49 the only question was, if Tenant by discent of the age of twen∣ty years and more, ought under one and twenty yeares to attorn to a Grant of the signiory or not, and it was adjudged that the At∣tornement is good for three reasons.

First, For that he gives no Interest, and for that it cannot be upon condition; for it is but a bare assent.

Secondly, His Ancestors held the same Land by the payment of the Rent and making of their Services, and it is reason that the Rent should be payd, and the Services performed, and for that though that he shall have his age for the Land, yet for the Rent he shall not have his age, and though that it is agreed in 32 Ed. 3. That he shall have his age (In per que servitia) yet after his full age the Grantee shall distraine for all the arrerages due from the first, so that the Attornement is no prejudice for this Infant, and he is in the num∣ber of those which shall be compellable to attorn, see 41 Ed. 3. age 23. 26 Ed 3. 32. 32 Ed. 3. and 31 Ed. 3. Per que servitia, 9 Ed. 3. 38. 32 Ed. 3. Infant of the age of three years attorned, and good, and 3 Ed. 3. 42. Husband attornes, and that shall bind the Wife, 12 Ed. 4. 4. 18 H. 6. Attornement of an Infant is good to binde him, for that it is a lawfull act.

Thirdly, The Attornement is a perfect thing, of which the Law requires the finishing, that is, the grant of the signiory which is not perfect, till the Tenant attorn, and Foster Justice said, that so it had been adjudged in this Court in the time of the Reigne of Elizabeth, in which Judgment all the Justices agreed with one voyce, without any contradiction, See 26. Ed. 3. 62.

Pasch. 9. Jacobi, 1611. In the Common Bench. As yet Rowles against Mason, see the beginning, Michaelmas 8. Jacobi.

DOdridge Serjeant of the King argued for the Plaintiff, he saith that there are two Copies, first that a Copy-holder for life under a 100. l. may nominate his Successor. Secondly, That such Copy-holder after such nomination may cut down all the Trees growing upon his Copy-hold and sell them, and he saith that it hath been adjudged that the custome that Copy-holder for life may sell the Trees growing upon his Copy-hold is void, between Popham and Hill, Hillary 45 Eliz. in this Court, so if the first custome doth not make difference by the nomination, the second is resolved to be void, and it seemes to him that the first custome doth not make difference, and to the objection that the first custome hath been ad∣judged to be good between Bale and Crab, he saith that the custome adjudged, and this custome as it is found differs in many points. First, It was found that every Copy-holder for life solely seised without Remainder, but here is sole Tenant in possession, and this may be where there is a Remainder, so that uncertainty in this makes the custome void, as in 6 Ed. 3. custome that an Infant at the age of discretion may alien is void for uncertainty, also in the case here it is found, that the Copy-holder may name who shall be next Te∣nant to the Lord, and doth not say to whom the nomination shall be made, but in the first case the custome is found to be, that the nomination ought to be to the Lord▪ in the presence of two Copy-holders, also in the first it is found, that if they cannot agree of the Fine, that the Homage shall assess it; but in this custome here found there is not any mention of that he ought to seek to be admit∣ted, and doth not say at what court, the which ought to be shew∣ed in certain, as it is resolved in Penimans Case, 5 Coke 84. Where custome that a Feoffment ought to be inrolled, is expressed, shall be inrolled at the next court, also in the first case to be found that after the Fine is payd or offered, he which is named shall be admitted, and here is not any mention of that, so that he concluded that this is a new custome, and not the same custome which was in question be∣tween Bayle and Colepit, also it is found that the trees were cut im∣mediately after nomination of a new Tenant, and before any admit∣tance or Fine payd for him; so that insomuch that the Benefit was not equall as well as to the Lord as to the Tenant, as in 2 Ed. 4. 28. and 22 Ed. 4. 80. For plowing and turning upon the Land of another, for that the custome shall be void. And to the second custome also it

seems, that that is voyd and unreasonable. First, for that when any is alledged in the custome, that is inconvenient, though that it be not mischeivous, yet the custome shall be void, as in 4. Assisarum 27. in Assise brought against an Abbot, which pleads custome, that all the houses of the South side of the street shall be devisable, and he claimes by force of a Devise made according to that custome and adjudged that the custome is not good, for it is inconvenient that in one self same ancient Town one house shall be devisable and ano∣ther not, and upon that the Plea was amended, so here, custome that a Copy-holder may sell all the Trees is inconvenient, for it doth not appeare that this Custome extended to any other but to him: Secondly this Custome is against the Common Wealth, for every Custome ought to have preservation and maintenance, and that shall not be here, for when one Copy-holder hath sold all the Trees, the Successor shall not have any Boots nor Fire, and so by the same reason he may pull down the house. And so this tends to destruction, and rests in the will of a man if he will distroy or not. And this is inconvenient that such power should be given to one, which hath but an estate for life, as in 14. Ed. 3. Barr 277. Copy-holder pleads Custome of a Mannor, that that Copy-holder which comes first after a windfall falne, shall have it, and resolved to be void Custome, for that it rests in the will of a man if he will finde that or not. So in 5. H. 7. 9. Custome that if one find Beasts doing Dammage that he may distraine them, and have foure pence for his Dammages, and adjudged void Custome, for the Dammages are nncertaine, and for that it is no reason that the Fine shall be certaine, and 19. Eliz. Dyer 358. 46. Custome that all Devises and Leases, granted for more then six yeares are meerly void forthwith, is a void Custome, because contrary to common reason, and the liberty of one which hath Fee simple. So 2 Hen. 4. 24. Custome that the Tenants of the Mannor shall not use their Common till the Lord put in his Beasts, is void, for it should not depend on the Will of the Lord; So in the principall case the Lord cannot grant Copy-hold Estate in reversion, for it depends upon the Nomination of his Te∣nant, and for that the Custome shall be void.

Thirdly, The Copy-holder hath prescribed to do a thing which is contrary to his Estate, and doth not cohere with his Estate, that is, that Lessee for life shall cut the Trees, for he hath but a speciall property in that, and not the ••bsolute property, and it is like to a Case in 19 Ed 3. Feoffments 68. and 19 Assise 9. Where Comman∣der of an Hospitall prescribes, that he and his Predecessors, which have had the same office, have used to make Leases for lives, and in an Action brought by the Prior it was adjudged that the custome is void, and so by consequence the Lease was void, for the Comman∣der

hath no Estate to make it, so in Fors•• and Hemlings Case, 4. Coke, and 3 Ed. 3. F. Dat. Custome that a married Wife may make a Will is void, for it doth not stand with the quality of her person, so here it is not with the quality of the Estate, but it may be obje∣cted that it is a greater Estate, then an Estate for life, for it is perpetuall Free-hold; to that it may be answered in this case, it is no greater Estate then for life, for the Copy-holder hath only made nomination, but he which was nominated was not admitted, so that the Tenant hath no greater Estate, nor the Lord hath gran∣ted greater Estate then for life, but admit that he be Tenant for life, with a Remainder for life to him to whom the nomination is made, yet he cannot do such an act, and for that the cutting down of the Trees shall be a forfeiture of his Estate by custome, by which the Estate is created, and copy-hold Lands are not as other Lands, which if they were let for Life at the common Law, the Tenant were dispunishable for wast, till the Statute of Glocester, for it was the Folly of the Lessor to make a Lease to such a person, which would make wast, and for that, as the benefit and Priviledge of the copy-holder remaines, so the benefit of the Lord shall not be abridged, and so he prayed Judgment for the Plaintiff.

Haughton Serjeant seemeth the contrary for the Defendant, and he agreed that Customes ought to be reasonable, and if they be ge∣nerally inconvenient, they cannot be reasonable; and to the first ex∣ception, to prove that it is a new Custome; that is, that it is found that he is onely Tenant in possession, without saying, Without Re∣mainder, as it was in the first Case; to that he thought if it were true, that the Copy-holder hath such priviledge that he might no∣minate his Successor, it is not materiall, and to the lessening of the Fine, that is found very certaine, for he that is nominated at the first requires admittance, and if the Lord refuse that he shall be admit∣ted, for such a Fine that the Homage Assess, and so it is found, and that is very certaine, and the rather for that, that this is a speciall Verdict.

Also he agreed as before, That Custome ought to be reasonable, and if it be generally inconvenient, though it be not mischeivous, yet it shall not be good; and to the Case of 40 Assis. 37. Custome to devise the Tenements on the South side of the Street, is not good, for that, that Custome cannot be in one particular place certaine; and also he agreed the Case of Windfall, for that tended to charge the Lord, 3 Eliz. Dyer 299. 57. 58. Custome to have Herriot the best Beast, and if that be put out of the way before seisure, then the Lord may seise and take the Beast of any other mans there arising and lying downe; to his owne proper use, and the custome held voyd and unreasonable: So the custome in 20 H. 7. to have so much

for every Pound-breach is voyd; but this custome is meerly between the Lord and Tenant, and the custome hath made that discendable Inheritance, and also may have reasonable beginning, and the Lord hath benefit for that; that is, his Fine for the admittance of him which is nominated; and custome hath created other Estates, as Grant to him and his, is good by the custome, and so the Cases of 21 Ed. 4. and 22 Ed. 4. before cyted, for the turning of Plough upon the Land of his Neighbour: So the custome if the Lord feed the Beasts of his Tenant that he may Fold them; and so he conclu∣ded that the first custome to make nomination is good; and to the second custome, he agreed that bare Copy-holder for life, could not Prescribe to cut and sell all the Trees, no more then custome that Tenant for life may devise, as 35 H. 6. But here the Tenant hath perpetuity in his Estate, and may nominate his Successor, and as well as the Common Law allows Tenant after possibility of Issue extinct, to make waste; so may custome allow Tenant for life with such no∣mination, power to cut and sell the Trees: Also he intended, ad∣mitting the custome not good, that yet the Copy-holder hath nor forfeited his Estate, for the Trees and the Mannor are granted by severall Grants, and for that, though that they are by one selfe same Deed, yet by that the Trees are severed from the Mannor, and the Trees are the cause of the forfeiture, and they are no parcell of the Mannor, as in 31 Edw. 3. Assis. 441. by sale of a Castle the services are extinct.

So here the forfeiture cannot accrue to the Mannor, when that commeth by reason of Trees, which are severed by reason of severall Grants; and he thought that the Grant shall be taken more strong, against him which made it; as if a man in the Premises give Fee-sim∣ple, to have in tayl, the Estate tayl shall be precedent, and the Fee-simple depending upon that; so if a man have the next avoydance of a Church, and the Church becomes voyd. and after he purchase the Advowson, yet the Presentation remaines as it was before, for that is the best thing, and so it is resolved in Herlackendens Case, 4 Coke 63. b. That if a man makes a Lease for yeares of Land, except the Trees, and after grants the Trees to the Lessee, that the Trees are not reunited to the Land, and so he concluded that it shall be no forfeiture, and prayed Judgment for the Defendant; and this Case was argued againe, Michaelmas, 9 Jacobi, by Shirley for the Plain∣tiff, * 1.50 that the first custome was voyd, insomuch that he claimed to doe a greater thing then his Estate would warrant, as in 35 H. 6. Custome that if one Pawne the Goods of another, that he which hath them Pawned may keep them whosoever they were, is not good, as Custome that the Tenant in tayle may devise, is voyd, for his Estate will not warrant it, and it is prejudice to the Tenant in re∣version:

So Custome that Copy-holder shall have Common, and an∣other Custome, that none shall put in his Beasts till the Lord put in his, 2. H. 4. 24. Also there is no Fine Limited to be tendred by the Tenant, or to be demanded by the Lord: And if a Copy-holder refuse to pay his Fine it is a Forfeyture, and if the Custome do not provide for the Fine of the Lord as for the Copy-holder, the Custome shall be void: Also here cannot be admittance, for Littleton saith, that the sole meanes to transfer Copy-hold is by Surrender. And here if the Custome should be good, the copy-hold should be transferred by Nomination only, and so the Lord should be Defeated of his Fine, and it seemes also that the second Custome is void, for it is contrary to the Estate of a copy-holder, to sell all the Trees, but he agreed that he might have Estovers for houseboote and hedgboote, as it was adjudged in Swayne and Becketts Case, and he cited the 19. assis. Where a Commoner made a Lease for life, and void, for that that the Estate would not support it, 9. H. 6. 56. and 11. H. 6. 40. Prescription to sell Estovers is void, for Estovers are appropriate to a house: And also it was adjudged in this Court between Poltocke and Powell, that a copy-holder for life cannot prescribe to sell the Trees, for it is contrary to his Estate, as if a Custome be, that if a Feoffor die his Heire within age, that he shall be in Ward, as 8. H. 6. And he thought that the Nomination was no alteration, for he to whom the Nomination is made, hath only an Estate for life, when the Nomination is made, and that doth not warrant the sale of the Trees, and to the third it seemes that the Lord of the Mannor bargaine and sells the Trees, and after lets the Mannor to the bar∣gainee for years, and then copy-holder makes wast, he thought that the Trees were not severed from the Mannor, as in 33. H. 8. 48. Dyer 2. if a man bargaine and sell a Mannor, and after in the same Deed makes a bargaine and sale of an Advowson appendant, this remaines appendant: So if a man bargaine and sell a Mannor, and also the Trees do not passe till Livery be made of the Mannor, So if Lessee for yeares, gives and grants the Land, and makes a Let∣ter of Attorney to make Livery, the tearme passes without Livery, and then it is a Forfeyture: And here the Lessee shall have the benefit of Shade and Burrough, and the Trees themselves during the Tearme, as parcell of the Land, and then when the copy-holder hath done more then his Estate will warrant, this is a forfeyture, and the Lessee shall take the advantage of it, and so he praied Judge∣ment for the Plaintiff: Harris for the Defendant that the Customes are good, but admitting that so, yet the Plaintiff shall not take * 1.51 advantage of it, and he argued that Custome ought to have two properties; first reasonable, secondly ought to have time to make

that perfect, and then shall be good, as it appears by the examples of Littleton, f. 37. of Burrough English and Gavelkind, and custome may be against common right, but not against common reason, which is the common Law, 8 Ed. 4. 18. 21 Ed. 3. 4. And he intended here that the second custome is good, if the first be good, for then it is perpetuall Free-hold, and Copy-hold Estate of Inheritance is but an Estate at will at the Common Law, and yet such Copy-holder may dispose the Trees, as well as custome may create the Estate, as well may it give such priviledge, as custome may warrant the taking of Toll for passing over the soile of another, 22 Assise 58. And so custome to have the Foldage of the Beasts which feeds upon his soil is good, but custome for paying the Goods of another is not good, for there is not any recompence, but fishing in the Sea and to dig the soile ad∣joyning for landing of his Nets is good, for this is for the publick good, 8 Ed. 4. 23. So the custome for turning upon head-land of ano∣ther is good, and is for the preservation of Tilling, and also it is be∣tween Lord an Tenant, and shall be intended to have a reasonable beginning for consideration, &c. That this continues, for he hath Fines and other Services, and yet 3 Eliz. 199. Dyer. If the Lord claim Harriot of his Tenant, and if it be Esloyned, alledge custome, that he may take the Beasts that he found upon the Land in Withernam; and this was adjudged unreasonable custome, so 20 H. 7. 13. Custome to have three shillings of a stranger for pound-breach is void, but of a Tenant is otherwise, for it shall be intended to be a lawfull begin∣ning, 11 H. 7. 40. So here the beginning shal be intended to be lawfull and for valuable consideration, and for this it shall be good; and to the second custome it follows by consequence to be a good custome, if the first should be good, and then to the third he agreed that Co∣pyholder cannot make wast, and if he do it shall be a forefeiture of his Estate, as it is said by Hull, 9 H. 4, Wast 59. but this ought to be such Wast that is prejudiciall to the Inheritance, as it is agreed in Her∣lackendens case, 4 Coke, Where it is agreed that the Bargainee hath severall Interests in the Land and in the Trees, and by the Writings, by the making of the Lease of the Mannor they are not reunited and annexed to the Free-hold again, and then the cutting and selling is no prejudice to him in reversion, and so no Wast to make forfeiture, and so he concluded and prayed Judgment for the Defendant and is adjourned, see the beginning, fol.

Trinity 9. Jacobi 1611. In the Common Bench. As yet Doctor Hūfreys Case, see Hillary 8. Jacobi.

IN the Writ of Ravishment of Ward, between Francis Moore Esquire Plaintiff, against Doctor Hussey and Katharine his Wife, Robert Wakeman Clark, and many other Defendants, Dodridge the Kings Serjeant argued for the Defendant Doctor Hussey, that a marryed Wife is not within the Statute of Westminster 2. chapter 35. By which the Writ of Ravishment of Ward is given, that which be∣fore the Statute was only Trespasse, is by the Statute altered in manner and form of proceedings and in penalty of Judgment, and he thought that this Writ being formed upon the Statute doth not extend to a married Wife, for by the Statute if the Defendant, cannot satisfie for the marriage he must abjure the Realme, or shall have perpetuall Imprisonment, which goes neer to every man next unto his Life, the love of his Country and liberty, and those the makers of the Statute did not intend against a married Wife, and he grounded his argument upon these words of the Statute, by which it appears that the makers of the Statute; did not intend any person which had no property in any Goods nor power to make sa∣tisfaction.

For first the Statute provides, that if he be able to make satisfacti∣on, that then he should satisfy, if not that then he shall abjure the Realme, by which it appears that the Statute intends those that have property, and by possibility may satisfy, but a woman cannot, for her marriage is a gift of all her goods personall to her Husband, see for that Fox and Girtbrookes Case Commentaries.

Secondly, The Statute provides new form of proceedings, for if the Ward or any of the parties dy hanging the Writ, the Writ shall not abate, but it shall be revived by Resummons, by or against the Executors of him that is dead, by this it appears that he which hath no power to make Executors, shall not be intended to be within the Statute, and a married Wife cannot make a Will, and by consequence cannot make Executors, see Coke 6. a. Forse and Hem∣blins case, 3 Ed. 3. Devise 13. 4 H. 6. 6. and if the Executors have no assets, then the statute gives remedy against the Heir.

Thirdly, The Statute intends to give action against him which may have possession of the ward, the which a married Wife cannot have, for her possession is to the use of the Husband, and by the words of the statute, he against whom the Action is given ought to be made Fidei possessor, and to the objection, that though that the Wife married cannot by any possibility have sufficient to make satis∣faction

according to the intent of the statute, yet if the Husband hath sufficient, he shall answer for his Wife, as in 48 Ed. 3. 26. and 17 H. 6. A married wife shall be attached by the Goods of the Husband, he saith that there the reason is, that the Wife is answe∣rable by the Husband, but this is only to make him to appear, but he against whom the action is given, by this statute ought to have property, and in such cases a married Wife shall not be punished, as in the same Parliament Westminster 2. chapter 25. Is provided, that if a Disseisor faile of Record that he shall be imprisoned, in Assise, for this is the speedy remedy, but if a married wife pleads a Record and failes of that to the Jury; she shall not be imprisoned, though that the Assise was brought against the Husband and the Wife or a∣gainst the Husband, and the wife is received, see 1. 3 Ass. 1 44 ass. 3. 17. as. 19. 11 H. 4.

Also the statute of Conjunctim Feoffatis, fol. 99. Which was made in the time of the said King Ed. 3. in which time the statute of West∣minster 2. was made, and is contemporary with the same statute, by which it is provided, that if any plead Joyntenancy, which is found against him in the Assise, that he shall be imprisoned by the space of a yeare, and 16 Assise 8. Husband pleads Joyntenancy with his wife, and maintaines the Exception which is found against them, and resolved that the Wife should not be imprisoned by this statute, 21 Assise 28. 31 Assise a. accordingly, and he said there was not any president nor Book of Record, by which it appears that a Writ of Ravishment of Ward, was maintained against a marryed Wife, for Ravishment after the Coverture, but for Ravishment before the Coverture, see 6 and 8. Ed. 3. and to the Objection that the Plaintiff hath election if he will have the sufficiency come in question, may but admit the Defendants to be sufficient, and then the impri∣sonment, nor the abjuration shall not be inflicted, as it seems to be some opinion, 8 Ed. 3. 52. and to that he saith, that the admittance of the parties cannot alter the Law, for if it were not the intent of the makers of the Statute that this should extend to the Wife, the admit∣tance of the parties will not make that extend over the provision of that, also it seems to him that the Verdict is not perfect, for that it is not fonnd by whom the VVard was married, but only that he ap∣peared marryed, and it ought to be without the consent of the Plaintiff, and for that it might be that he was marryed by the Plain∣tiff, and then there is no cause of action, nor to have the value of the marriage, and it appears by 22 R. 2. Damages 130, that they ought to inquire by whom he is marryed, and also the value of the marri∣age, and if it doth not appear whether he be married or not, then the Verdict shall be conditionall and the Judgment also, and all the Presidents are, he appears married without the assent of the Plaintiff,

and so he concluded, and prayed that the Judgment might stand: Harris Serjeant for the Plaintiff prayes Judgment, and he supposed that it is in the choyce of the Plaintiff what Judgment he would * 1.52 have, for he ought to have Dammages and the value of the marri∣age, and it remaines in the discretion of the Plaintiff, what judg∣ment he will have (that is) upon the Statute, for to have the cor∣porall punishment, or allow the Defendants to be sufficient, and so to have judgment for the Damages, and the value of the Marriage, without any Imprisonment or Abjuration; as in 29 Ed. 3. 24. and 8 Ed. 3. 52. where the question was demanded of the Plaintiff, and in 22 Rich. 2. Damages 130. Hankford demanded the question, if the Jury ought to inquire if the Defendants were sufficient or not, and it was resolved that they need not; and in 34 H. 8. Trinity, Rot. 347. there is a President accordingly, where the Husband and the Wife were found guilty; and the Action was founded upon the Statute, and Capias awarded against them both, and to the fayling of the Record, it is reason that the Wife should not be imprisoned, for the Pleas are the Pleas of the Husband and his acts, and in the 11 H. 4 51. and 21 Assis. 4 in Assise the Wife was received, and voucheth a Record, and failed, and no judgment upon that against the Hus∣band, and the Wife was imprisoned; and so upon Allegation of Joyntenancy, the Wife was imprisoned; and so he concluded, and prayed judgment for the Plaintiff; and at another day the Case was argued againe by Montague the Kings Serjeant for the Defen∣dant, * 1.53 that a marryed Wife was not within the Statute of Westminster 2. Chap. 35. And he sayd, that the true course for understanding the Statute, is to consider three things:

First the Common Law before the making of that Statute:

Secondly the mischeife that the Statute intended to remedy:

Thirdly against what persons the Statute intended to remedy such mischeifes: And to the first he intended that at the Common Law, before the making of the Statute, the Remedy for Ravishment of Ward, was an Action of Trespasse, as it appeares by Fitz. Na. Bre. And then it was questioned if the Plaintiff should recover the Body without Dammages, or Dammages only without the Body. See 9. Ed. 4. 48. Ed. 3. 20. 27. H. 6. And then there was no greater punishment, nor other remedy for the taking of the Ward, then of other goods, and for the remedy of that, the Statute of West∣minster 2. chap. 35. was made, by which it is provided, that if the Ravisher restore the Ward unmarried, then the Plaintiff shall re∣cover only Dammages for the Ravishment, and not the value of the Ward: But if the Ward be married, then the Guardian shall re∣cover the value of the marriage, and if he shall not satisfie, then he shall abjure the Kiugdome, or have perpetuall Imprisonment,

and the punishments inflicted by the Statute, being so penall: Then the persons which are within the Statute are considerable, for in all penall Lawes, the persons and the penallties are the things to be considered, and to the persons this Statute saith, that one for anothers Fault is not to be punished, and he said, this is re∣ferred to Dammages, as well as to Imprisonment, and it is not a lost case, and the Plaintiff without remedy, for Action of Trespasse lies against the Husband at the Common Law, for, for all Tres∣passes at the Common Law done by a married Wife, the Husband shall be punished by payment of the Dammages and costs which are recovered: See 14. H. 8. and 9. Ed. 4. But to the Statutes which are penall and inflict corporall punishment there otherwise, and as the Statute of 23. Eliz. made against Recusants for not re∣sorting to Church, should forfeit twenty pounds for every moneth; and resolved that this shall extend to a marryed Wife, and for that the Husband shall be lyable to action: But by the third of Jacobi, there is speciall provision, that the Woman shall not be subject to twenty pounds a moneth, but other punishmrnt provided for her; and he supposed that where a statute gives Imprisonment and Dam∣mages, and a marryed Wife offends the statute, and shall be impri∣soned, but the Husband shall not pay the Damages, as in 8 H. 8. 18. Upon the statute of Westminster, a Woman was Imprisoned for false appeale, for the death of her Husband, who was brought into the Court and living; and in the 11 H. 4. 54. It is marvell that the statute of Westminster 2. gives the action to the Heire, insomuch that Interest appears to the Executor: And for that Hill saith, That the statute was not made by those which were skilled in the Law, but he spake ill, saith the Reporter: Also the words of the statute, If the Ravisher cannot satisfie, he shall abjure the Realme, or have perpetuall Imprisonment, and the Wife cannot, by any possibility; make satisfaction, for she cannot have any Goods; so as this Case is, the statute would make perpetuall separation, either by ab∣juration or perpetuall Imprisonment, if this shall extend to a mar∣ryed Wife, as in 6 H. 7. was the question, whether a marryed Wife shall be Attached for that, and she had no Goods, as it is 48 Ed. 3. 2. the Sheriff returnes (Nihil) against a Monk, for that that he had no Goods, for all his Goods are the Goods of the Abbot, and it is impossible that a marryed Wife should have any Goods, and the Law doth not compell to impossible things: See 3 Ed. 4. 4 H. 6. Also the Statute saith, That if the Ravisher dye, hanging the Writ, let the Law proceed against hi•• Executors by resummons, and a marryed Woman cannot make Executors; and to the like cases, he thought that a marryed Wife was not within the Statute of Offen∣ders in Parks, and this gives the same punishment that the Statute

gives, as it is resolved, 13 Assis. So if a marryed Wife fayle of a Record in Assise, she shall not be imprisoned, and the Husband is joyned onely for conformity, and for no other cause; and to the President of 34 H. 5. which hath been cyted here against the Hus∣band and Wife, and Judgement by default against both, and upon this, Capiatur is awarded against them both, but this is onely for the Imprisonment but not for the Damages; and also this Case dif∣fers from that, for here the Husband is found Not guilty: Also it seems that the Book of Entrys, 366. 15. lyes against Husband and Wife, and there they both plead, but if the Wife onely be condem∣ned, the Husband shall not pay the Damages recovered against her, 44 Ed. 3. 25. As a Lease is made to the Husband and Wife, the Hus∣band makes waste, and an Action of waste is brought against them both, and the Husband dyes, and the Writ abates, for the wrong dyes with him, and the Wife shall not be punished; and so prayed that the judgment might stay, and Doctor Hussey not punished.

Hutton Serjeant for the Plaintiff prayed that the Judgment * 1.54 might be entred, and first ••ee considered the Common Law, and after that the Statute, and at the Common Law hee a∣greed that a Trespasse lyes against the Husband and the Wife, for Ravishment made by the Wife, and in this hee should recover Damages against the Husband and the Wife, and the Husband shall be charged with the Damages, though it be but for words proceeding from her tongue, or any other Trespasse, and if the Husband make default, his body shall be imprisoned, so that it appears that there was remedy at the common Law by a∣ction of trespasse, and that the Husband was subject to that, then by consequence it was intended, that all persons which were char∣geable by the common Law shall be chargeable by the Statute, and by the action which is formed upon that, and by the common Law the Husband was chargeable, and by consequence shall be charge∣ble by the Statute; and he intends that there would be difference be∣tween actuall wrongs, and others which are come by omission, and if the VVife be the person which did the wrong, then she shall be punished as well by Statute, as she was before by the common Law, also she shal be out-lawed, and it hath been agreed that Ravishment of Ward shall be maintainable against the Husband and the wife, if they both are Ravishers, and also if the wife be Ravisher before mar∣riage, and after takes a Husband, the Husband shall be charged with the damages, and his Body shall be imprisoned, and by consequence shall be abjured, also shee may make an Executor by the con∣sent of her Husband, but admitting that she could not, then the remedy is given against the Heir, and she shall be within this Sta∣tute as well as other Statutes made in the time of the said King, as

the Statute of Westminster 1. 37. And shall be a Disseisor with force, and shall be imprisoned, whether the Husband joyn with her or not, as it is adjudged 16 Assise 7. for all Statutes which provide for actu∣all wrong, a married VVife shall be intended within them, as it is 9 H. 4. 6. But the pleading of Joyntenancy, there the Plea is the act of the Husband, and so fayling of Record, upon the Statute of 34 Ed. 3. as it is 16 Assise 8. for the Husband propounds the excep∣tion, but if the VVife propounds the exception, then she shall be within the Statute and shall be imprisoned, 21 Assise: So if a married VVife make actuall disseisin with force she shall be imprisoned, 9 H. 4. 7. b. 8 Ed. 3. 52. 22 Ed. 2 Damages 20. 27 H. 6. Ward 118. And so the President, Trinity 33 H. 8. Rot. 347. in a case between Thomas Earle of Rutland against Lawrence Savage and his VVife in Ravish∣ment of Ward, at the Nisi prius the Defendants make default, and the Judgment was, that the Husband and the VVife should be taken, and upon that he inferred, that the Husband should be subject and charged with the damages, and so it is taken upon the statute of 35. Eliz. That the Husband shall be charged with Debt for the Recu∣sancy of the VVife, and shall be imprisoned for the not payment of it, as to the verdict it seems that this is good, and it shall be inten∣ded the VVard was marryed by the Defendants, as in 33 Ed. 3. Ver∣dict 48. It is found by verdict, that Mulier enters, and resolved that this shall be intended in the life of the Bastard, or otherwise it is nothing worth, and in Fulwoods case 4 Coke, the Jury found that the Defendant acknowledged himself to be bound, and that shall be intended according to the statute of 23 H. 8. and so here though that it be not found, that the VVard was married by these Defendants, yet it shall be so intended, notwithstanding that no∣thing is found, but only that he appeared married, and so he con∣cluded and prayed Judgment for the Plaintiff. This case was sol∣lemnly argued this Tearme by all the Justices, that is, Coke and Wal∣mesley, Warberton and Foster, and upon their selemn arguments, Coke and Walmesley were of opinion that a married wife is not with∣in the statute, and Warberton and Foster were of the contrary opinion, and so by reason of their contrariety in opinion, the Judgment was staid.

Trinity 9. Jacobi 1611. in the Common Bench. Burnham against Bayne.

THE case was, A Man seised of divers Lands, the halfe of them were extended by Elegit, and before Judgement was had against him, a new Elegit Awarded, and if all the halfe which

remaines, or but the halfe of that which was the fourth part of all should be extended was the question: And it was agreed by all the Justices, that but the halfe of that which remaines, and not the halfe of all, which he had at the time of the Judgement: But the halfe of that, which he had at the time of the Elegit: And if all which remaines be extended, the Extent shall be void, by all the Justices, see 10. Ed. 2, Execution 137, 16. E. 2. Execu∣tion 118. And here the principall case was, A man hath a Rent of forty pound, reserved upon a Lease for years, and two Judgments in Debt were had against him at the Suit of Sir Thomas Cambell, and three Judgments at the Suit of the Plaintiff, the halfe was first exten∣ded by Elegit, upon the first Judgment had, at the Suit of Sir Thomas Cambell, and after upon the Judgment had at his Suit, the halfe of the residue was extended and after upon the Judgment at the Suit of the Plaintiff all the residue was extended, and all the Justices agreed that the Extent was void, for they ought to extend but the halfe of that which remaines, and that was but the fourth part.

Trinity 9. Jacobi, 1611. In the Common Bench. Trobervill against Brent.

THE Case was, A man makes a Lease for yeares rendring Rent, * 1.55 and after grants the Reversion for life, to which Grant the Lessee for years attornes, the Grantee acknowledgeth a statute, and after surrenders his Estate, the Conusee extends the Statute and distraines for the Rent, and in Replevin avowes for the cause afore∣said, and adjudged that the Avowry was good.

Agreed that Creditor may sue the Executors, and the Heir of * 1.56 the Debtor also, but he shall have but one Execution with satisfa∣ction, see the Statute of 23 H. 8. for such course in the Exche quer.

Note, that no Court of Equity, may examine any matter of E∣quity, * 1.57 after Judgment which was precedent the Judgment, see the Statute of 4 H. 4. chapt. 23.

Trinity 9. Jacobi 1611. In the Common Bench. Hamond against Jethro.

THe case was this, Edward Hamond was Plaintiff in Debt upon a Bill against VVilliam Jethro, and the Bill was made in this man∣ner, * 1.58 Memorandum, that I VVilliam Jethro do owe and am indeb∣ted

unto Edward Hamond in the Sum of ten pound, for the payment whereof, I binde my self, &c. In witnesse, and after the (in wit∣nesse) it was thus subscribed, Memorandum, that the said VVilliam Jethro be not compelled to pay the said ten pound untill he reco∣vers thirty pound upon an obligation against A. B. &c. And in the Count was no mention made of this Subscription; but this appears when the Defendant prayes, hearing of the Bill, the which was then entered Verbatim of Record, and upon that the Defendant demurred in Law. Harris Serjeant for the Plaintiff agreed, that if it had been * 1.59 in the Body of the Bill, it ought to have been contained in the Count to inable the Plaintiff to his action, but that which is after (in wit∣nesse) is no parcell of the Bill, and for that it need not to be con∣tained in the Count, 9 H. 6. 15, 16. A thing which doth not intitle the Plaintiff to action, need not to be contained in the Count, 36 H. 6. 6. If the condition, be indorced or subscribed, it need not to be con∣tained in the Count; but if it be contained before the (in witnesse) then it ought to be contained in the Count, 21 Ed. 4. 36. If a man be bound to pay ten pounds when the Obligee carries two hundred load of Hay to his House, there the condition is precedent, and it ought to be contained in the Count, 22 Ed. 4. 42. accordingly: so here the matter is subsequent to the (in witnesse) and there is not any other matter upon which the action is founded, nor contained in the body of the Bill, nor to be performed by the Obligee, and for that he prayed Judgment for the Plaintiff. Shirley Serjeant for the * 1.60 Defendant, that the sealing is immediately after the Proviso, and is adjoyning to the Bill in writing, and for that be it to be performed of the part of the Plaintiff or Defendant, it ought to be mentioned in the Count, for this intitles the Plaintiff to his Action of the case in 36 H. 6. 6. It is a condition subsequent, and there need not to be shewed; but if the condition be precedent, and contained in the writing before the insealing there, it ought to be mentioned in the Count: and in this principall case, this is either a condition Prece∣dent or nothing, for it is, that he shall not be compelled to pay the sayd ten pounds untill he had recovered thirty pound, and if he ne∣ver recover, he never shall pay the ten pound; and it is a condition of the part of the Defendant, and it is adjudged in Ʋssards case, that where a condition is precedent, there it ought to be contained in the Count, but where it is subsequent, otherwise it is. So 15 H. 7. 1. Grant, that when the Grantor is promoted to a Benefice that he ought to give to the Grantee ten pound, this is precedent, but in the principall case it is a Condition or Covenant: and though that it be subsequent, yet it may stay the Suit as well as an acquit∣tance, which is to be an acquittance if he be vexed, otherwise not, but a condition that he shall not sue the Bill is void, for it is contra∣ry

to that, and barrs him of all the fruit of that, and precedent con∣dition may be placed after the (in Witnesse) as well as before, so he prayed Judgment for the Defendant: Coke cheife Justice said, that this which is after (in witnesse) is not part of the Deed, but may be a Condition or Defeasance; but if it be not (in witnesse) in the Deed, then it shall be parcell of the Bill; but though that this be put after the (in witnesse) yet it shall have his force as Defeasance, but it need not to be contained in the Count; for in Bonds and personall things, there need not such strict words as in other Deeds, and for that this shall be a good Condition or Defeasance; but then the Defendant ought to have that so pleaded, and not demurr, for this makes the Bill conditionall. VVarberton and Foster agreed, VValmesley did not gainsay it, and for that it was adjudged for the Plaintiff, if the Defendant did not shew cause to the contrary, by such a day, which was not done.

Note, It was adjudged by all the Justices, that fealty gives seisin * 1.61 of all annuall services sufficient to make seisin in avowry, but not in Assise, but of accidentall services, this gives seisin in Assise, and a man cannot take excessiive distresse for that, for this is more sacred service, as Littleton saith of Homage, the most honourable: See 42 Ed. 3. 26. 11 H. 4. 2.

Note, Two retaine an Attorney, both dye, the Executor or Ad∣ministrator of the survivor shall be onely charged, and not the Exe∣cutors * 1.62 of them both, for a personall contract survives of both par∣ties, otherwise of reall contracts, as warranty: See 16 H. 7. 13. a. 3 Coke, Sir William Harberts Case, 30 Ed. 3. 40. 17 Ed. 3. 8. The Attorney brought an Action of Debt against both, and the Execu∣tors of both the parties which retained him for his Fees, and both pleaded joyntly, that they detained nothing, and it was found for the Plaintiff, and upon motion in arrest of Judgement, the Judge∣ment was stayed, insomuch that the Executor of the survivor was onely chargeable, notwithstanding the pleading and admission of the Parties.

Note, That it was agreed by all the Justices, that by the Law of Merchants, if two Merchants joyne in Trade, that of the increase * 1.63 of that, if one dye, the other shall not have the benefit by survi∣vor: See Fitzherberts Natura brevium, Accompt, 38 Ed. 3. And so of two Joynt Shop-keepers, for they are Merchants; for as Coke saith, there are foure sorts of Merchants, that is, Merchant Adven∣turers, Merchants dormants, Merchants travelling, and Merchants residents, and amongst them all there shall be no benefit by sur∣vivor.

Jus accrescendi inter Mercatores locam non habet.

Note, That Arbitrators awarded, that every of the parties should

pay onely five shillings for writing the award to the Clark, and a∣greed * 1.64 that the award was voyd to that part, and good for the resi∣due, for they cannot award a thing to be made to a stranger.

Action upon the Case was brought for these words, He is a Co∣zening * 1.65 Rogue, and hath cozened Richard Wood of thirty pound, and goeth about to doe the like by me, and agreed that the action doth not lye: So for Rogue or Cozener, for it is without aspersion and gentle, and words shall be taken in the gentlest sense.

Devise that Executors shall sell Land with the assent of J. S. * 1.66 if J. S. dyes before that he assents, the Executors shall not sell; notwithstanding the death of J. S. was the act of God, and in the life time of J. S. they could not sell without his consent, and so it was agreed in the Case concerning Salisbury Schoole, where the under Schoole-Master was to be placed by the head Schoole-Master with the assent of two cheife Bailiffs, and it seems the head Schoole-Master cannot place without their consents.

Note, it was said to be adjudged that the Inhabitants of a Town * 1.67 cannot be incorporated, without the consent of the major part of them, and incorporation without their consent is void.

In action upon the case, the case was this, The Brother of the Defendant spoke these words to the Plaintiff, that is, Thou Theif, thou Goale whelpe, thou hast stolne a peice of Silver from my Master Hocken; and the Defendant sayd as insued, that is, That which my Brother spake is true, I will justifie it, and spend a hun∣dred pounds in proofe thereof; and it seems to the Court, that the Action doth not lye against the Defendant, insomuch that it doth not appeare by the Court, that he had notice of the words which his Brother spoke; but that this ought to be specially averred, and the Count contained that the Defendant justified the aforesayd scandalous words to be true, as in these English words following, That which my Brother, &c. and it seemes that this was not suffi∣cient.

Michaelmas 1611. 9. Jacobi, In the Common Bench. Sir Richard Buckley against Owen Wood.

NOte, It was sayd to be adjudged between these parties, that if * 1.68 a man exhibits a Bill in the Srarr Chamber, which containes di∣verse slanderous matters, whereof the Court hath no Jurisdiction; that an Action upon the Case lyeth; so if the Plaintiff affirme his Bill to be true, action upon the Case lyeth upon that, as it was ad∣judged upon that, as it was adjudged in the same Case.

Michaelmas 9. Jacobi 1611, in the Common Bench. Patrick against Lowre.

IN Trespasse the Defendant justifies, for that, that he was seised * 1.69 of a House with the Appurtenances, and prescribes to have Com∣mon in the place, &c. for all manner of Beasts, Levant & Cou∣chant upon the sayd House, and good prescription, notwithstanding it doth not containe certaine number, and it shall be intended for so many of the Beasts, which may be rising and lying down upon the said House, and if he put in more they may be distrayned, do∣ing Damage; and so is the usage and prescription in all Burroughs; that is, to prescribe to have the Common by reason of the House, but the matter upon which Nicholls the Serjeant which moved it in∣sists was the uncertainty, that is, what shall be sayd rising and ly∣ing down upon a House, for he thought beasts could not be rising and lying down upon a House, unlesse that they are upon the top of the House, but to that it was resolved, that infomuch that here the com∣mon was claymed to the House, it shall be intended that it was a cur∣tillage belonging to the House, and if it be not; that ought to be averred of the other party, and then the Beasts shall be intended to be rising and lying upon the Curtladge, and if it had been alledged, yet it shall be intended so many of the Beasts which may be tyed and are usually to be maintained and remaining within the House, for it was agreed that (rising and lying down) shall be intended those Beasts which are nourished and fed upon the Land, and may there live in summer and winter, and also Beasts cannot be distrained if they be not rising and lying down upon the Land and receiving food there for some reasonable time, but some thought that beasts could not be rising and lying down upon a house without a Curtilage.

Note that it was agreed that all proceedings in inferiour Court, * 1.70 after a Writ of Priviledge delivered out of this Court are void (and before no Judge) and if they award Execution, this Court will dis∣charge the party of Execution.

Note that a Fine was levyed between Charles Lynne and VValter * 1.71 Long, and the Foote of the Fine was Longle, and it was amen∣ded▪

Michaelmas 9. Jacobi 1611. In the Common Bench. Hamond Strangis Case.

THe Father for a valuable consideration infeoffs his eldest son and * 1.72 Heir, and adjudged that this was not within the statute of those, who infeoff their eldest Sons, nor a valuable considerati∣on.

In Avowry, the Defendant avowes upon the person of the Plaintiff, in a Replevin, and the Plaintiff traverses the Tenure, upon which they are at issue, and at the Nisi prius it is found for the Plaintiff, and agreed that this was aided by the Statute of Ieofailes, for this is out of the statute of 21 H. 8. and as it was at the common Law; or if the Defendant avow upon the person of a stranger, the stranger hath no plea, but out of his fee, which was mischeivous, the which was aided by the statute of 11 H. 8. 19. for he thought he would have traversed the Seisin.

The Teste of a Venire facias was the twelfth of June returnable, tres * 1.73 Trinitatis, which was the same day that the Teste was, and after Verdict it was moved to be amended, and to be made according to the Roll, the which was done accordingly, see 7 Ed. 4. for retur∣ning of Distring as which was amended after Verdict, and Crompton one of the Prothonotaries sayd, that a Venire facias bare date in the vacation after the Tearm returnable in the Tearme before, and it was amended according to the Roll, and the principall case was, the Roll was upon the entering of the issue, therefore you shall cause to come here twelve good and lawfull men, who neither, &c. within three weeks of Michaelmas, and the return of the Venire fa∣cias was made accordingly.

Michaelmas 9. Jacobi 1611. in the Common Bench. John Weekes Plaintiff, Edward Bathurst Defendant.

ALSO in Ejectione Firme, upon the Joyning of the Issue, * 1.74 the Defendant pleads not Guilty, and it was entred, and the aforesaid Lessor, likewise, where it should have been, and the a∣foresaid Plaintiff likewise, and it was amended: See this Case after∣wards here the Case was, the Defendant pleads, that he is not guilty as the aforesaid Weekes, which was the Lessor, above against him hath declared, and upon this he puts himself upon the Countrey, and the aforesaid Weekes likewise, where it should be the aforesaid John likewise, and after verdict upon solemne argument this was

amended by Coke, Warburton, and Foster, and Foster cited 11. H. 7. 2. 26. H. 6. to be directly in the point; and 14. Ed. 3. A∣mendment 46. Ed. 3. Amendment 53. and Warburton seemed that first, that is Wekes for the aforesaid Wekes, &c. Is not materiall, and the last shall be amended, insomuch that this doth not alter any matter of substance, Coke seemed that this was amendable the same Tearme by the Common Law, if it were before Issue, see 5 Ed. 3. 7 H. 6. Which was immediately before the statute of 22 Ed. 4. but in another tearme it was not amendable by the Common Law, nor the statute of 14 Ed. 3. doth not extend to that, for this doth not extend to a Plea Roll, 46 Ed. 3. 13. accordingly, but the statute of 8 H. 6. extends to any misprision, in the Plea Roll, or in the Record, and makes that amendable, 26 H. 6. Amendment, 32. 9 and 10. Eliz. Dyer 260, 261. And the difference is, where there there is an Issue that gives power to the Justices of Nisi prius to try that, then ano∣ther Misprision shall be afterwards amended; and he said that it was adjudged between Sir William Read & Lezure in the Exchequer, that a Commission of these words (and the aforesayd Plaintiff like∣wise) shall not be amended, but in the principall case here, they all agreed that it shall be amended, and it was amended according∣ly.

Michaelmas 1611. 9. Jacobi, in the Common Bench. Prowse against Worthinge. Leonard Loves Case.

IN an Ejectione firme, speciall Verdict, the case was this, Leonard * 1.75 Loves the Grand-Father, was seised of a Mannor held in cheife, and of other Mannors and Lands held of a Common person in socage, and had Issue foure Sonns, Thomas, William, Humphrey, & Rich∣ard. And by his Deed 12 Eliz. covenants to convey these Mannors and Lands to the use of himself for his life, without impeachment of wast, and after his desease to the use of such Farmors and Tenants, and for such Estates as shall be contained in such Grants as he shall make them, and after that to the use of his last will, and after that to the use of VVilliam his second sonn in tayle, the Remainder to Humphrey his third Son in tayle, the Remainder to Richard the fourth Sonn in tayle, the Remainder to his own right Heires, with power of Revocation, and after makes a Feoflment according to the covenant, and after that purchases eight other acres held of another common person in socage, and after makes revocation of the said E∣states of some of the Mannors and Lands which were not held by Knights service, and after that makes his Will, and devises the Land that he had purchased as before, and all the other Land where∣of

he had made the Revocation to Thomas his eldest son, & the Heirs Males of his body for 500. years, provided that if he alien, and dye without Issue, that then it shall remaine to William his second sonne in tayle, with the like proviso as before, and after dyed; and the Ju∣ry found, that the Lands whereof no revocation is made, exceeds two parts of all his Lands, Thomas the eldest sonne enters the 8. Acres, purchased as before, and dyes without Issue male, having Issue a Daughter, of whom this Defendant claimes these eight Acres, and the Plaintiff claims them by William the second Son.

And Dodridge the Kings Serjeant argued for the Plaintiff, intend∣ing * 1.76 that the sole question is for the 8. acres purchased; and if the de∣vise of that be good or not by the Statute of 34. H. 8. And to that the point is only, a man which hath Lands held in cheife by Knights service, and other Lands held of a common person in Socage, conveys by act executed in his life time, more then two parts, and after pur∣chases other Lands, and devises those, if the devise be good or not. And it seems to him that the devise is good, and he saith, that it hath been adjudged in the selfe same case, and between the same parties; And this Judgment hath been affirmed by writ of Error, and the de∣vise to Thomas, and the Heirs males of his body for 500. years, was a good estate tayle, and for that he would not dispute it against these two Judgments. But to the other question hee intended that the de∣vise was good, and that the Devisor was not well able to doe it by the Statute of 34. H. 8. And hee intended that the statute authoriseth two things. 1. To execute estates in the life time of the party for advancement of his Wife or Children, or payment of his debts, and for that see 14. Eliz. Dyer, and that may be done also by the com∣mon Law, before the making of this statute. But this statute restrains to two parts, and for the third part makes the Conveyance voyd as touching the Lord: But the statute enables to dispose by Will a parts, where he cannot dispose any part by the Common Law, if it be not by special Custome, but the use only was deviseable by the common Law, & this was altered into possession by the statute of 27 H. 8. and then cometh the statute of 32. and 34. H. 8. and enables to devise the Land which he had at the time of the devise, or which he purchased afterwards, for a third part of this Land should remain which hee had at the time of the devise made; and if a third part of the Land did not remain at the time of the devise made, sufficient should be taken out of that; but if the Devisor purchase other Lands after, hee may those wholly dispose: And for that it was adjudged, Trin. 26. Eliz. be∣tween Ive and Stacye, That a man cannot convey two parts of his Lands by act executed in his life time, and devise the third part, or any part so held by Knights service; and also he relyed upon the words of the statute, that is, having Lands held by Knights service, that this

shall be intended at the time of the devise, as it was resolved in But∣ler & Bakers Case; That is, that the statute implies two things that is property, and time of property, which ought to be at the time of the devise. But here at the time of the devise, the Devisor was not having of Lands held by Knights service, for of those he was only Tenant for life, and the having intended by the statute ought to be reall en∣joying, and perfect having, by taking, and not by retaining, though that in Carrs Case, cited in Butler and Bakers Case, rent extinct be sufficient to make Wardship, yet this is no sufficient having to make a devise void for any part.

Also if the Statute extend to all Lands, to be after purchased, the party shall never be in quiet, and for that the Statute doth not in∣tend Lands which shall be purchased afterwards; for the Statute is having, which is in the Present tence, and not which he shall have, which is in the Future tence; and 4. and 5 P. and M. 158. Dyer 35. A man seised of Socage Lands, assures that to his Wife in joynture, and 8. years after purchases Lands held in cheife by Knights service, and devises two parts of that, and agreed that the Queen shall not have any part of the land conveyed for Joynture, for this was con∣veyed before the purchase of the other, which agrees with the prin∣cipall case, and though to the Question, what had the Devisor; It was having of Lands held in Capite, insomuch that he had Fee-simple expectant upon all the estates tayl; he intended that this is no having within the Statute, but that the Statute intend such having, of which profit ariseth, and out of which the K. or other Lord may be answered, by the receipt of the profits, which cannot be by him which hath fee-simple expectant upon an estate tayle, of which no Rent is reserved: and also the estate tayle by intendment shall have continu∣ance till the end of the world: and 40. Edw 3. 37. b. in rationabili parte bonorum, it was pleaded, that the Plaintiff had reversion discended from his Father, and so hath received advancement. And it seems that was no plea, in so much that the reversion depends upon an estate tayle, and upon which no Rent was reserved, and so no ad∣vancement. So of a conveyance within this Statute, ought such ad∣vancement to the youngest sonne, which continues, as it is agreed in Binghams Case, 2 Coke, that if a man convey lands to his youngest sonne, and he convey that over to a stranger in the life time of his fa∣ther for good consideration, and after the Father dies, this is now out of the Statute; for the advancement ought to be continuing until the death of the Father: And so he saith also it was adjudged in Butler and Bakers Case; that if a man devise Socage Lands, and after sell to a stranger for good consideration, his Lands held by Knights service, this devise is now good for all, for hee hath not any Land held by Knights service at the time of his death, and so he concluded that the

devise was good, and prayed Judgement for the Plaintiff. Houghton * 1.77 Serjeant for the Defendant, he thought the contrary, and hee argued that before the statutes of 32. and 34. of H. 8. men were disabled to devise any Land, and for that they cannot provide for their Wives, Children, or for payment of their Debts, and for remedy to that, Fe∣offments to uses were invented, and then to dispose the use by their Wills: and then experience finds that to be inconvenient, and then the statute of 27. H. 8. transfers the use into possession, and then nei∣ther use nor land was deviseable without speciall Custome, and then this was found to be mischeivous, after five years experience, and then was the statute of 32. H. 8. made, and where by the statute of Marlebridg, of those which did enfeoff their begotten sons, a Feoff∣ment by the Father to his son and Heir was void for all. Now by this statute this is good for 2. parts, and void only for the 3d part, & that for the good of the Lord; but as to the party that is good for all, as it is agreed in Mightes case, 8 Coke. Then to consider in the case here, if all things concur that the statute requires; and to that here is a person which was actually seised of Land held by Knights service in 12. Eliz. So that it is a person which then was having within the statute. 2. If here be such conveyance for advancement of his children, as is in∣tended within the statute; and to that he seemed that so, notwith∣standing that it may be objected, that here is no execution to the youngest children, insomuch that it is first limited to such Farmers and Tenants, &c. But he intended that this is no impediment. Second∣ly, also there is a limitation to the use of his last Will. Thirdly, also there is a limitation to the use of such persons to whom he devises any estate by his Will. But these are no impediments, for the last is no o∣ther but a devise to himselfe and his heirs, and there is not any other person knowne, but meerely contingent, and it is not like to a remainder limited to the right heirs of I. S. for there the remainder is in Abeiance, but here it is only in contingency, and nothing executed in Interest, till the contingency happen, and the not having of a son at the time shall not make difference, as in 38. Edw. 3. 26. in formedon in Remainder, where the gift was in one for life, the remainder to a∣nother in tayle, remainder in fee to another stranger; and he in re∣mainder in tayle dyes without Issue in the life time of the Tenant for life, he in remainder in fee may have formedon in remainder without mentioning the remainder in tayle. But here he intends that the de∣vise shall be void in respect of the Lands first conveyed, which were held in cheife by Knight service; for the words of the statute are by act executed, either by devise, or by any of them, and they are con∣joyned: and it is not of necessity that the time of the Conveyance shall be respected, but the time of the value. And notwithstanding that the Testator doth not mention any time; But in so much as the

provision of the statute is to save primor, seisin, and livery to the King, as if the man had 20 l. by year in Socage, and one acre in cheife, and makes a conveyance of all that, it shall be void first to the livery, and pri••or seisin to the third part: So if he make conveyance of the 20 l. by yeare, and leave the said acre held in cheife to discend, and after that purchase other Lands to the value of the third part of all the con∣veyance of the 20 l. land, notwithstanding which, for the advance∣ment of his Wife, Children, or payment of his Debts, for he had a full third part at the time of his death, which discended. And he suppo∣sed that the having of a dry reversion depending upon the estate tall, is sufficient, having within the words and letter of the Statute, and yet he agreed the ease put in Butler and Bakers case; that if a man devise his Socage Lands, and after alien his Lands held in cheife by Knight service to a stranger, bonafide, this is good. So if he had made a reservation of his Lands held in chiefe to himselfe for his life, in so much that his estate in that ended with his life, and hee remembred the case cyted in Bret and case, Comment. That if a man de∣vise a Mannor in which he hath nothing, and after hee purchaseth it, and dyes, the devise is good, if it be by expresse name. But when a man hath disposed of two parts of his Land, the Statute doth not ina∣ble him to devise the Residue; but he hath done all, and executed all the authority which the Statute hath given to him. But he agreed al∣so, that the reversion is not such a thing of value, which might make the third part discend to the Heir; but it is uncertaine, as a hundred, and the other things of uncertain value contained in Butler and Ba∣kers Case. And also he intended, that the remainder could not take effect, insomuch that the condition is precedent, and it is not found that the eldest Sonne hath aliened, and then dead without Heir male, and so he concluded, and prayed Judgment for the Defendant.

In Replevin the Defendant avows for 9 s. Rent, the Plaintiff pleads a * 1.78 Deed of feoffment of the same Land made before the Statute of (quia emptores terrarum) by which 6 s. 8 d. is only reserved, and demands Judgment, if he shall be received to demand more then is reserved by the Deed; See 4 Ed. 2. Avowry, 202. 10. H. 7. 20. Ed. 4. 7. Edw. 4. Lung, 5 Ed. 4. 22 H. 6. 50. This Deed was without date, and it was a∣verred that it was made before the Statute of (quia emptores terra∣rum) which was made in the 18. of Edw. 1. And also it ought to be averred to be made after the beginning of the Reign of Richard 1. For a writing after the beginning of his Reign checks prescription. But if a man hath a thing by grant before that, he may claim by prescription, for hee cannot plead the grant, insomuch it is before time of memory, and a Jury cannot take notice of that, and for that the pleading before with the said averments was good.

If debt be due by Obligation, and another debt be due by the same * 1.79

Debtor to the same Debtee of equall summe, and the Debtor pay one sum generally, this shall be intended payment upon the Obligation.

Earl of Cumberland and Hilton

IN an action of Accompt, the (Venire facias) was returned by the * 1.80 Coroners; (The execution of this Writ doth appeare in a certaine Pannell fixed to this Writ) and the Pannell and names of the Jurors between the Earl of Cumberland, Plaintiff, and Thomas Hilton Defen∣dant, in a plea of Debt, where it ought to be in a plea of Accompt, and yet after Verdict day was given to the Coroners, to amend their Re∣turn, which was done accordingly.

Michaelmass, 1611. 9. Jacobi, in the Common Bench. Ferdmando Cross, Informer, against Westwood.

IN Information upon the Statute of 5. Ed. 6. Chap. 14. exhibited by * 1.81 Crosse against Westwood, for that the Defendant had bought in gross, and gotten into his hands by buying, and not by Lease, 40. quarters of Wheat meale, price of every quarter 40. shillings, to the intent to put that in water, and after of that being dryed again, then of that to make starch, against the form of the said Statute, and so demanded fourscore pounds for the King and himselfe, according to the Statute; and upon this the Defendant demurred in Law, upon the Information this case came in question: And it was argued by Nicholls Serjeant for the Defendant, that there was not any Law against Ingrossers known, what was ingrossing before the making of this Statute, which declares and describes who shall be an Ingrosser: Then he considered, if the In∣grosser described in the Information, be such an Ingrosser which is in∣tended by the Statute, and he seemed that no, for he said, the Ingros∣ser contained in the Information, is not one which bought Corn grow∣ing in the field, nor Corn, nor dead Victualls, which are the words contained in the Statute; but he is charged for buying of wheat meal, and it seems that that is not within the words of the Statute. Also In∣grosser intended within the Statute, ought to buy that, to sell the same againe, and so is not the Ingrosser in the Information charged, and if he be not within the words, he shall not be within the punish∣ment; for it is a penall law, and shall not be taken by equity, and so much the more, because it inflicts corporall punishment upon the Of∣fender. And then to consider the words of the Statute, he supposed that Wheat meale is not within the words, Corn growing, nor Corn; but the question is, if it be within the words, dead Victuals: and to that he said, that it hath been adjudged, that a Costermonger which

buyes Apples to sell againe, is not within the words (dead Victualls) and he said, that Flower and Meale are things of which Victualls are made, and not Victuals themselves. But there ought to be another thing done to them by the industry of man to make them Victuals; As if a Baker buy Wheat, and make that into Bread, this is out of the provision of the Law, and not aided by the Proviso, which provides for Fish-monger, Poulter, and Butcher, which buyes such things which concern their Faculty, Crafte, or Mystery, if it be not by fore-stalling, but this doth not extend to all Crafts. But hee supposed that when the nature is altered, that is out of the purviewe, and is a∣nother thing, and shall not be ••eplevied, notwithstanding that Re∣plevin lyeth of Sow and Piggs, where the Sow only was imparked, but not of Leather made in Shoos. Also he seemed that the Defendant is not charged that he had an intent to sell the same again: And if a man buy Corne for the provision of his house, this is out of the Statute, notwithstanding that it be by Ingrossing. And so if a man buy Barley, and make that into Malt, and sell it again in Malt: Or if a man buy Oates, and convert that into Oatmeale, or other Flower, and then sell it again, this is out of the statute: and if so it be, then upon this he inferred, that this is not so much as if he had sold that afterwards, when he had altered it in nature, as in making of Wheat-meale into starch; for in the cases before cyted, things bought are of another na∣ture: So if a man hath many Farms or Grounds sowed with Corn, and he sells them to another, this is no fore-stalling within the statute, if it be not driving to Market: and he saith, that Regrater is defyned by the statute, to be him which buyes in one Market, and sells that in another Market within four miles, and he is an Ingrosser, and Re∣grater also: So if a man buy Wheat, and makes Cakes of that, this is out of the statute: Or if a Merchant buy Corn beyond Sea, and sell that here, this is is out of the statute, for it ought to be bought and sold also within the Realm; so if Corn reserved for Rent be sold again, this is out of the statute, and so concluded; First, that the buying of Wheat-meale is not buying of Corn growing, Corn, nor dead Victu∣als, and the sale of that in starch, is not the sale of the same thing a∣gain, and prayed Judgment for the Defendant.

Dodridge Serjeant of the King, for the King, and the Informer supposed the contrary, and to him it seemed, that there are three * 1.82 things considerable, upon the Statute: That is, the Scope, the Letter, and the offence, and to the offence, he intended that it is the offence which is contained in the Information which is provi∣ded to be punished by the Statute, and he said that the offence is confessed by the Demurrer: And he said there were divers good Lawes against Ingrossers before the making of this Statute: But it was not defined who was an Ingrosser, and this was the Evasion

that such Malefactors escaped without punishment. And he said, there are three notable Enemies to the Common Wealth, first Fore∣stallers, secondly Regraters, thirdly Ingrossers: And forestaller is he which prevents the Sale in open markett, Ingrosser is he which ingrosseth in his hands, and Regrater is he which sells againe, and he which will be an Ingrosser, will be a Forestaller also, and so of the contrary, and these offences make Dearth, and for that their gaine is called a (wicked gaine:) See the Statute of 31. Ed. 1. Rastall Forestallers 1. And they are basely to be esteemed, which marchandise of Marchants, because they cannot gaine unlesse at least they lye: And this Statute hath given a livery to those Ma∣lefactors by which they may be knowne, for he hath them dis∣cribed and defined, and this is the scope of the Statute; thirdly he considered the Letter, and for the better intelligence of that he consi ered the Body and Proviso of the Statute, and tie him∣selfe to an Ingrosser, and would not meddle with the other offences contained in the Statute, the words of which are, whatsoever per∣son or persons shall ingrosse or get into his or their hands by buying, &c. (other then by Lease, &c.) and Corne growing in the feilds, or any other Corne or graine, &c. or other dead victualls whatsoever, shall be accepted, reputed, and taken an unlawfull ingrosser, &c. And it hath been objected that it is a penall Statute, and for that shall not be taken by equity, and also is declaratory, and for reason also shall be taken strictly: But he supposed, that admitting that the offender contained in the information be out of the Letter of the Statute, that yet he shall be within the equity, and that the Statute shall be taken by equity, but he intended first, what was within the Letter of the Statute, for Wheat made into meale is Wheat, and Barley made into Malt is Barley, and so it is contained in the information, that is, that he hath bought Wheat made into Meal, and allowing that Corn is victuall, then a fortiori, meal is dead victuall, for it is a degree neerer to the use of man and to sustenance••; and by the same reason that it is not victuall, insomuch that another thing ought to be made to it, before it may be used, by the same rea∣son flesh shall be no victuall, for that ought to be boyled or rosted, which is another thing also before it can be used: and he said that meal is the staffe of sustenance, and of all dearths, the dearth of Meale and Corne is the most greatest, and he which wants bread, wants all other victualls, for all others without this breedes diseases, and for that Corne is the victuall of victualls, and so he supposed this remaines Corne, and admitting that not yet it is within the words (dead victualls) Also he intendes that the Statute shall be taken by equity, notwithstanding it be penall, insomuch that it is for publicke good, as the Statute of 25. Ed. 3. of petty treason, con∣taines

the Master only: And yet if a Servant kills his Mistris, that shall betaken within the Statute: And so if the Servant kills his Ma∣ster after that he is departed out of his service, upon malice concei∣ved during the time that he was in his service, this shall be also with∣in the Statute, and yet is not within the words of the statute, and so of the statutes of 13. and 27. Eliz. of fraud upon taking by equity, and yet all these statutes are penall: But insomuch that they are made for the publicke good, and for punishment of offences which tend to the contrary, they shall be out of the generall rule; But he intended that the same thing which was bought was sold againe, for it is confessed by the information, that he hath sold Meale, and it was not the thing that was first bought, and if it were sustenance before that the water was put to it, the putting of water to it doth not make alteration, and is contained in the information, that the Defendant sold the same meale that he had bought by the name of Starch, and this is confessed by the Demurrer, and by that if meale be victuall, then he hath sold meale victuall by the name of Starch, and to the objection, that it is not the same thing, insomuch that the Replevin doth not lie, for the meale after that is made in Starch, he saith Replevin doth not lie for the Corne it selfe if it be not in bags, and if the meale were in bags, notwithstanding that water were put to it, yet Replevin lies, and it is reason that this shall have a large and beneficiall construction, insomuch as it ap∣peres by the preamble, that this is made against the Catterpillers of the Common Wealth: And to the objection that the Statute is Declaratory, and for that it shall not be taken by equity, if this rule shall be observed, then all the questions in the Court of Wards, and in Butler and Bakers Case 3. Coke they have been in vaine. And yet it appeares that equity was there taken for equity. But in these cases the exposition may be besides, but not contrary to the words, and also he intended that the Proviso expounds the Body of the statute, and by the Proviso it appeares, that the buying of bar∣ley and converting it into Malt, and the Sale of that afterwards, and the buying of Oates and the converting of that into Oate-Meale, and the sale of that afterwards should be within the Statute, if it had not been excepted by the Proviso; and yet there is an alteration of the thing which is bought: And if a man buy Barley by forestal∣ling, and make that in Malt, and then sell that againe, this is within the Statute, and there is no difference betwixt this Case and Malt, for the Barley is put into water and dryed againe, and so it is here, the Meale is put in water and dryed againe, and yet that is within the Statute: And the manner and nature of offence, every one which hath a Houshold and Family knowes, for the finest Wheate Meale makes sustenance for the Master of the Family, and the other

makes severall sorts for the residue of the Family, and the Brann makes Bread for Horses; so that the vertue of that is, that it feeds both Man and Beast, and all this is prevented by making that new devised vanity, and the quantity of Wheat which is imployed is incre∣dible, and may feed many, and if the makers of that have gained the name of an occupation, this is worse, for this furthers vanity, and takes away the sustenance of many, and inhanceth the price of Wheate, and is so new aninvention that there is not a Latine word for it, and so he concluded that he is an Offender, and within the scope of the letter of the Law, and that the Preamble and Proviso hath been so expounded, and that as to meane occupations, as Tan∣ners and such like which bought Hydes and sold them again, and he said that they did them further for the use of man, and made that more apt and fit for use, and without that a man could not use them, but in this Case the Starch-makers further the abuse, and prayed Judgment for the King, and for the Informer.

And at another day this case was argued again by Haughton for * 1.83 the Defendant, that the statute is penall for forfeyture of Goods, as for coporall punishment, and for that it shall not be taken by Equity, nor by interpretation, but strictly according to the Letter, as in Reniger and Fogassas case, Commentaries 18. By Pollard, it is a principall in Law, that a penall statute shall not be taken by Equity, as in the statute of Westminster 1. chapter 35. Gives an attaint in reall action, and notwithstanding that perjury be an offence against both the Tables, and in attaint it is of necessity that it be perjury in the petty Jury, and yet this doth not extend to personall Actions, 5 Ed. 3. 6. 34 Ed. 4. 7. 1 Ed. 3. 6. Gives attaint as well for Damages excessive, as for the principall, and this shall be taken strictly, also as it is sayd by Fineva, 14 H. 7. 14. a. and in 27 H. 6. 8. Generall penall Statuts shall be limited to certaine times as the statute of West∣minster 2. chapt. 11. Which gives power to Auditors which finde ac∣countants in Arrerages, to commit them to prison, but it ought not to be forthwith, and this for the favour of the Defendants, and this is the reason also of the Judgment in Fogassas Case by the statute of Agreements, that every agreement shall be taken within the sta∣tute, and so the Statute of 23 H. 6. Provides that the Sheriff shall not let out his County, and 20 H. 7. 21. It is agreed that the letting out of a Hundred is not within the Statute, and it is also a∣greed in Partridges case, Com. 87. that the statute of 32 H. 8. of buy∣ing of Tithes, shall not be taken by Equity, and the reason is there given, insomuch that it is a penall Law, and if it be so that the sta∣tute shall not be taken by Equity he considered if it be within the words, and to that he intended that it is not Corne which is bought, for it is changed into another thing, and also it is not

dead Victuall, for it is not Victuall till another thing is made of it, also the same thing that was bought ought to be sold again, or other∣wise it shall not be within the Words of the statute, and by conse∣quence out of the penalty, as if a man buy Corn, and make that into Meale, Bread, or Puddings, this is not within the statute, so the buying of Apples and selling of them again, it is no victualls within the statute, so Butcher which buyes Cattell, and those kill and sells again is not within the statute, and he sayes that Starch is good Food when it is dry again, which proves that this is another thing then the Meale which was bought, and so out of the Letter of the statute, and to the Proviso which excepts Barley that is bought and made in Malt, and Oates, made in Oate-Meale and sold again, it seems that this is an idle Proviso and surplusage, as in Porters Case, 1 Coke 24. 6. in the statute of 27 H. 8. Proviso to except good uses out of the statute, inables men to devise to such uses, and so the statute of 5 Ed. 6. chapter 16. the Body of which extends only to Offices, Covenant, Administration of Justice, or the Revenue of the King, as Receiver, Controller, &c. And yet a Keeper of a Park is excepted out of this, more for the satisfaction of the ignorant Burgesses then for any necessity, and so he concluded and prayed judgment for the Defendant.

Montague Serjeant of the King, for the King and for the Infor∣mer * 1.84 argued to the contrary, that as to the objection that Coster∣mongers are not within the statute, he sayth, that that is a thing of Delicacy, and not victualls within the statute, but he sayth it was adjudged in the Exchequer, that the buying of Meale and the selling of that again was within this statute, and in this case the In∣formation is that the Defendant had bought Meale and sold the same again by the name of Starch, which is confessed by the Demurrer, and for the exposition of the statute, he considered the mischeife before the making of that, the remedy which is provided by the sta∣tute, and the Office of a good Judge, that is to advance the remedy and suppresse the mischeife, and he intended that this was punish∣able by the Common Law in another forme, as Waste, notwith∣standing as Action doth not ly, yet Prohibition lyes at the Common Law, and by the statute of 27 Ed. 3. Justices in Oyre, ought to in∣quire of all greivances and oppressions to the People, and there can∣not be greater greivance or oppression then that is which deprives them of their food, and for that, he is called the Oppresser of the Poore, and Fleta calls him Woolfe which ought to be hunted from place to place, and 43 Assise. was punished by Fine and Ran∣some, and yet then the offence was uncertain, but now it is made certain by defining it by this statute, so that this is a statute of Defini∣tion only, and the statute of 31. Ed. 1. inf••icts the punishment, and

to the objection, that it is not the same thing which is sold, which was bought, he said it is the same in intent, for it produceth the same mischeife.

Secondly, It is the same substance, and the same forme, that is the formall substance which gives the being, but not an accedentall forme, and he saith, that if a man have Corne, and another by wrong takes it from him, and doth convert it into Meale, he may take that back again; otherwise of Iron made into an Anvill, but trees made into Timber, and plate altered in fashion, may be taken back again, otherwise if it be converted into Coyne, and so upon the Statute of 21 H. 8. If a Servant sells the Goods of his Master, and steal the Money, that is out of the Statute, but if the Servant carry Corne to the Mill, and this is converted into Meale, and then the Ser∣vant steales it, this is within the statute, for this is the same thing, 28 H. 8. A man pleads (he appearing seised to the same use) it shall not be intended the same, but such uses, and Browning and Beestons case in the Com. A man is bound to pay twenty pound at Michaelmas, and also afterwards to pay twenty pound at the same Feast, and that was intended the same Feast in another year, and not in the same year, so that the word (same) shall not be so precisely taken, but as Patent of the King for making of a thing, of which a man hath made new invention is good, if it be limited for certain time only, as Hastings hath a Patent for making of Frisado only, as a thing new∣ly invented by him, but insomuch that this varyes only in the form of making of that, and not in substance, the Patent was adjudged voyd, so a Patent made to a Cutler for Gilding, insomuch that this varies only in forme, this was not allowed to be a new invention, so a Patent made to Johnson for new casting of Lead, insomuch that that varies only in forme, and not in substance, this agreed with the ancient, this was also void, and if the starch made be another thing then the Meale which was bought, then it ought to be another in nature and quality, but this is not, for starch is used for Victuall in Spayne and other Countries, as Ryce is used, see 46 Assise 8. 27. and he intended that the Proviso made that cleer and without question, for there cannot be a difference made between that and Malt, and if Malt had not been within the Body of the Act, this would not be exempted by speciall Proviso, and so the statute of 25 H. 8. chapter 2. for transportation of Victuall in Ireland, except Meale, which proves also that Meale is included within the words, dead Victualls, and which hath been within the Body of the statute if it had not been excepted, and to the Objection that it is penal Law, and for that shall have strict opposition, and not by equity, but he saith that this rule failes as to the interest of the Common-Wealth, that is, when the Common-Wealth is intervenient; and

to the Objection that this is a thing invented after the making of the statute, he answered that, with the case of Saint-John, 5 Coke 71. b. Which inhibits Hand-Guns, and it is there adjudged that Dags and Stone-Bowes, which are of later Invention shall be within the statute for they are their invention, and their form of the things which are inhibited, and so Vernons case, 4 Coke, if he to whose use infeoffs his Son and Heir, this shall be taken within the statute of Marlebridge, and yet he to whose use cannot make a Feoffment, nor uses were not known till many yeares after the making of this statute, and Baker furthers the Meale for the use of man, and for that he may sell it in Bread without any punishment, and then he sayd it was the Office of a good Judge to suppresse the mischeife, and to advance the remedy as the Lord Anderson sayth in Brownes Case, 3. Coke: And so he concluded and prayed Judgment for the King and the Informer. And note that this case was solemnly argued by all the Justices of this Court, and it was adjudged, that this was ingrossing within the statute by Warburton, Foster, and Winch. But the Lord Coke agrued the contrary, Walmesley being absent that Tearme.

The same question was argued the same Tearme in the Exchequer upon an Information there exhibited by one Collins an Informer, and it was there argued by Hitchcocke of Lincolnes Inne for the Defendant, and he argued that the Starch was not the same thing which was bought, no more then if it had been made in Bread, and he cyted the Booke of 5 H. 7. 15. 16. Where it is agreed that if a man takes Barley and makes Malt of that, that he from whom it was taken, could not take the Malt, for that, that there the thing is altered in another nature, and he intended that the Starch is not the same in number nor quality, but he agreed, that if wheat be only grownd, that this notwithstanding is within the Statute, but if it be made into Bread, then sold, it is not within the Statute, for then it is another Body, and other things added to it, and the forme is also altered, and the forme gives the being and the name, and if Water be turned into Wine, it is no Water, though it be by mira∣cle; so if a Parson be made Bishop, he is not the same person, for Honours change Manners, and this is his reason that the Writ shall abate, for it is newly created, as of nothing, 7 H. 6. 15. 22 R. 2. Bre. 93. b. 2 R. 3. 20. Also the Statute of 21 H. 8. Which provides that the party from whom any Goods are stolne, after that the Felon is indicted, shall have restitution of the same goods, but if Corn be stolne, and converted into Meale, the Owner shall not have restitution, for it is not the same which was stolne, but if Plate be stolne and altered in other forme, yet the owner shall have restitution of that as he sayd, which was adjudged for the King,

40. Eliz. But where restitution upon a Writ of Errour, where the Judgment is the same thing shall be restored, that if yet tearm be sold by fieri facias, and after the Judgment is reversed by Errour, he shall not be restored to the Tearm but shall have the money for which it is sold, also he saith it is not the same in number and substance, for the 1 thing was corrupt, and the corruption of that was the beginning of the new, and the Wheate is the matter of which, and also Water is, and fire and the heat of the Sun, and after that it is made in Starch, it will not be dissolved and made into victuall, no more then Bread, and the worst Wheat will make the best starch, also he intended, that it is not in the same condition nor similitude, also he objected that (Ligamen) which is the word contained in the Count, is no Latine word at all, but (Legumen) is the latine word, and that is latine for Pulse, and that not being any latine word, the english which is added will not help it, and so he concluded and prayed Judgment for the Defendant.

Dodridge the Kings Serjeant for the King and for the Informer, * 1.85 argued that the starch is the same (Numero) in number, qua∣lity, and substance, not in likenesse, and that the statute, is no law of explanation but of difinition of three severalls, which make dearth without want, and the fore-stalling prevented the punishment of Law before the making of this Statute; but now these are in se∣verall degrees, that is forestalling is commonly ingrossing and re∣grating, and Ingrosser is alwayes Regrator, and that the Defendant in this case is Ingrosser of Victualls, that is victualls which is the staffe of mans health, and the want of that is more greivous then the want of all other things, and the dearth of that is the most pinch∣ing dearth which may be, and the gain of that is a base gain, and they which basely buy of Merchants that they may straightways sell not any thing unless they may get great gains or save in the measure, & they are called Regrators, as Grators of the faces of the People, and if this Statute had been executed, this had prevented many Dearths, and to the objection, that it is a penall Law, and for that shall be taken strictly, and there is a generall rule, and as true as it is ge∣nerall, but it is true if it be not within the exception, that is, if publick good doth not intervene, and here it concerns the Common-VVealth, as much as the lives of men, and many other penall Statutes have been taken by Equity, as the Statute which makes that to be petty Treason if the Servant kill his Master, and in the 19 H. 6. It is agreed that if the Servant after he is departed out of the service of his Master kill him upon any malice conceived during the time that he was in his Service, this shall be taken within the Equity of the statute, and so the statute of 33 H. 8. Was made precisely, against Hand-Guns and Daggs, are taken to be within the Equity

of that, notwithstanding that they were invented after the making of that Statute, and were not known at the time of the making of that, for they are the same in intention, as it is resolved in Streches Case, in Coke 71. b. And to the words of the Statute (who shall sell the same) it intends that starch is the same in all, but only in simili∣tude; for a thing which is of the same similitude is not the same, but like the same (for no like is the same.) Also he intended that it is the same both in number and form, and he agreed (that forme gave the being) for that is not the accidentall as here it is, but it is the sub∣stantiall forme, and every one knows that Meale of Wheat, is the same as Pepper beaten in a Morter, and Pepper and all other Spices, so that it is the same in number, existence, substance, and essence, and he intended also the same in intention, for Meale is Victuall, and is dead Victuall, be it Corne or Meale; and Corn grownd, and made in Meale, then sold, yet that remains dead Victuall, and Meale is the same dead Victuall, though that it be not the same Corne; and to prove that Corn is Victuall, he cyted the Statute of 25 Edw. 3. 5. Stat. Chap. 7. Which provides that no Forester shall make any ga∣thering of Victuals by colour of their Office; and hee intended, that Corne was within this statute, and so also of the statute of the 3. P. and M. Chap. 15. Rastal, Universities which provides, that to the Purveyor, Bargainor for any Victuals within 5 miles of any of the U∣niversities of Oxford or Cambridg, where Grain and Victuall are joy∣ned together.

So the Statute of 25 H. 8. Chap. 2. abridged by Rastall, Victual, 15. which inhibits the transportation of Victuall, if it be not of Meal and Butter into Ireland, by which it appears that Meale is dead Vi∣ctualls: And he said, that Victuals is that which refresheth men, and Victualls are those things, which to the use of eating and drinking are necessary. So that Meale is the same in number, though that the Corne were turned into Meale. And he cyted Peacock and Reynolds Ca••e to be adjudged 42 Eliz. That if a man buy Corne, and con∣vert that into Meale, and so sell it, it is within this Statute: And hee said, that if a man be made a Knight, hanging his action, that this shall abate his action, but yet he remains the same person, but his name is changed, which is the cause of the abatement of his action, 7 H. 6. 15. Also the Defendant is concluded by his demurrer upon the Information, to say that it is not the same thing, for this is con∣fessed by the Demurrer; and though that the name be changed, this is not materiall, if the substance be the same; and he agreed, that a Baker which buys Wheat, and makes it into Bread, is not within the Statute, for he furthers that to the use of man, as a Curryer makes the Leather more fit and apt for use; but so doth not he which makes it into starch, for he furthers the abuse; for it is no lawfull Occupa∣tion,

but idle and fri••olous furtherance of vanity of men. And in 35. H. 6. 2. If a man enter into the Land of another man, and cut Trees, and that square, and make into Boards, yet if the Owner enter, hee may take them: But if it be made into a House, otherwise it is, for there it is mingled with other things, as it is 5 H. 7. 15, 16. So Iron made in Anvill: But of Leather made in Shooes otherwise it is, inso∣much that it is mingled with other things, 12 H. 8. 11. a. A dead Stag is not a Stag, but is a certain dead thing, and flesh. As a man dead is not a man; but agreed the Book of H. 7. 15. and 16. That Corne converted into Meale cannot be restored, nor reprized, no more may that if it remains in Corne, if it be not in Baggs; And hee said, that upon the Statute of Merton, the Re-disseisin after the Re∣covery in Assise, if the same Disseisor makes Re-disseisin, the Sheriffe may examine that, &c. And it is agreed in 27 H. 6. That if Tenant in tayle be disseised, and recover in assise, and is put in possession, and after his Estate is altered, and he become Tenant in tayle after possi∣bility of Issue extinct, and then the Disseisor makes Re-disseisin, that this is aided by the statute, not that it is alteration of the Estate: And also he saith, it appears more fully by the Proviso, by which it is provided, that Barley turned into Malt, and Oates turned into Oat∣meale, if it be by Ingrossing, it is within the purview of the statute. So if it be by way of Fore-stalling; or if they sell them again before that they are converted, shall be Regrators; And to the Objection, that o∣ther things; that is, Water and Fire are added to that, he saith that none of them remains; for the Fire dryes the water, and the fire al∣so goeth out, and so he concluded and prayed Judgment for the King, and the Informer, and it was adjourned.

Michaelmass, 1611. 9. Jacobi, in the Common Bench.

IN Dower against Infant which makes default upon the grand Cape * 1.86 returned, and agreed by all the Justices, that Judgment shall be gi∣ven upon the Default, for the Infant shall not have his age, and so it was adjudge upon a Writ of Error.

Charnock against Currey, Administrator of Allen.

IN debt upon an Obligation against the Defendant, as Administrator as above, he pleads Judgment had against him in an action of debt, * 1.87 and over that hath not to satisfie, to which the Plaintiff replies, that this Judgment was for penalty, and the condition was for a lesser sum; and that the Plaintiff in the first action had accepted his due debt, and had promised to acknowledg satisfaction of the Judgement at the request of the Defendant, and at his charges: and the Admini∣strator

which was the Defendant, did not make request upon fraud and Covin, to avoid the Plaintiffs action: Upon which the Defen∣dant hath demurred, and so confesseth the matter of the Plea. But Foster seemed that the Plaintiff ought to aver, that the Plaintiff in the first action hath offered to acknowledg satisfaction, and that o∣therwise he should be put to his action upon the Case; but Coke and Warberton intended that the Replication is very good without such averment; for it shall be intended, that the Plaintif will perform his promise: But further, this Demurrer which was only for part, was also for another part, an Issue joyned for the other part, which was to be tryed by the Country; and which shall be tryed of the Issue, or of the Demurrer, was the question; and it was agreed by them all, that the Issue, or Demurrer shall be first at the discretion of the Court, see 11 H. 4. 5. 38. Ed. 3.

Commission is granted to the Councel in Wales, of which the Pre∣sident, * 1.88 Vice-president, or Cheife Justice to be one; And the question was, if they might make a Deputy, and it was agreed that a delegate power could not be delegated, but they might make an Officer to take an accompt in any such act.

Note that a Caveat was entred with a Bishop, that he should not * 1.89 admit any without giving notice, that the admission, this notwith∣standing is good; but if he admit one which hath no right, he is a di∣sturber, but otherwise the Caveat doth nothing, but only to make the Bishop carefull what person he admits.

Foster Justice seemed, that if the Ordinary now after the statute of * 1.90 21 H. 8. grants administration to one which is next of Blood, that he cannot repeale it; but Coke cheife Justice seemed the contrary, and that he incurred the penalty of the statute only. And if an Admini∣stration be granted to one which is next of Blood, upon which the first Administrator brings an action of debt, & hanging that, upon sug∣gestion that the first Administration is void, another Administration is granted; and it seems that this second Administration granted upon this suggestion shall be repealed from the first, though it be generall, and without any recitall of it. But if the second be declared by sen∣tence to be void from the beginning, then the first remains good.

Action upon the Case was brought for these words, that is, thou * 1.91 hast killed I. S. And it seems that the action doth not lye, for a man may kill another in execution, and as Minister of Justice, or in Warr, in which things killing is justifiable.

Michaelmasse 1611. 9. Jacobi, in the Common Bench: George Barney against Thomas Hardingham.

IN Trespasse for breaking the House, and taking of a Cowe, the * 1.92 Defendant pleades that the King and all those whose Estates he hath in the hundred, have had Turne, and at the Court held such a day it was presented, that the Plaintiff hath incroached upon the high Way, for which he was amerced, and the amercement was affirmed by two Justices of peace, according to the Custome of the Turne aforesaid: And that he being Bayliff of the hundred, by vertue of a Warrant to him in due manner made and directed, hath entred the said house, and taken the said Cowe for distresse, for the said amercement, and carrying it away, which is the same Trespasse, and so demands Judgement, upon which Plea the Plain∣tiff * 1.93 Demurred: And by Haughton Serjeant for the Plaintiff, the Plea in Barr is not good, and first he conceived that it was not good, in∣somuch that the King hath made his Prescription by whose Estate, and he intended that he could not make his Prescription by whose Estate, insomuch that this lies in grant, as it is 12. H. 7. 15. where it is agreed that by nothing which lieth in grant, a man may Pre∣scribe, (by whose Estate.) Also the Plea is that the King was sei∣sed in his Demesne as of Fee, where it ought to be in Fee only, in∣somuch that it is a thing only in Jurisdiction or Signiory and not Manurable, as in 8. H. 7. 7. H. 4. 30. assis. In an Action of Debt upon Reservation made upon Lease of a Mannor and hun∣dred, it is agreed that the hundred is not in Demesne nor Manurable: Also the Plea is not good, insomuch that it is not Pleaded, before whom the Turne shall be held: And allwaies when a man claimes a Court by Patent, he ought to shew before whom his Court shall be held, otherwise it shall not be good, so of Conusance of Pleas, otherwise it is if it be in a Turne, for that shall be intended a certaine ancient Court. See 44. Ed 5. 17. 1. H. 4. 6. 6. H. 4. 1. Also the Statute of Magna Charta, chap. 35. requires that it should be held in the accustomed place, and so it ought to be alledged, or otherwise it is against the Statute, and for that it shall not be good, for it is of the nature of Sheriffs Turne and derived out of that: See the book of Entries in Replevin 2. Also the Statute of Magna Charta, chap. 14. appoints that the officers shall be the Sheriffe, and this is not pleaded but generally by two Justices of Peace upon their Oath: And also it is not pleaded to what Sum the amercement was made. Also it is pleaded that he being a Bayliffe of the Hundred, by vertue of a Warrant to him in due manner directed and made,

hath taken the distresse, and doth not plead the Warrant certainly nor the place where it was made, And for that the Plea is not good: Also he pleades that he took and led away the Cowe, in name of distresse, and he ought to say that he took it and impounded it, for that (he tooke it and carried it away,) imports that he tooke it to his owne use, 9. Ed. 4. 2. 20. Ed. 4. 6. And so he concluded that the Barr is not good, and praied Judgement for the Plaintiff: And Barker (Serjeant for the Defendant) conceived that the Prescrip∣tion for the Hundred (by which the Estate) was very good, and for * 1.94 that, See 12. H. 7. 17. a. 8. H. 7. 13. H. 7. Also he intended * 1.95 that the title to the Court is very good, notwithstanding that it is expressed, before that it shall be held, insomuch that the Law takes notice of the Turne of the Sheriffe, and that he is Judge of that, and that the Affirance is very good, insomuch that this is according to the Custome of the Turne aforesaid: And the Warrant of the Baylif••e is very well pleaded, and more is pleaded then need, for it is the duty and appertaineth to his office to gather the amercements, and he might do that without Warrant by force of his office: But if it be upon plaint between party and party, otherwise it is, and for that see the book of Entries 553. And also the charge in the Action is for that, that he took and carried away, and of that he made Justification, and he cannot Plead otherwise, and to the (whose Estate, &c.) That a man cannot Prescribe to have a thing by (whose Estate) which lieth meerely in grant, without shewing of a Deed, yet when that is appurtenant to another thing, as here the Court is to a Hundred, it may very well that do, and 33. H. 8. B. Leete, when the penalty is Presented by the Jury it selfe, there needs not any affirance: And so he concluded that the Plea in Barr is very good, and praied Judgement upon that for the Defendant: And Coke cheife Justice said, that Turne of the Sheriffe is derived of Turner, which signifies to ride a Circuit, and so of that is derived Turner, and of that the Turne of the Sheriffe, and of this is derived the Hundred, and from this the Leete: And it seems to him, that he ought to plead, before that the Court shall be held, insomuch that it is against Right, and so it was adjourned.

Michaelmas 1611. 9. Jacobi, in the Common Bench. Hill against Upchurch.

NOTE that Coke cheife Justice saith, that it was adjudged in * 1.96 27. of Eliz. For the Mannor of Northhall in the County of Essex, that admitting that a Copy-hold may be Intailed by the Sta∣tute, that then Custome that a surrender shall be a Barr or discon∣tinuance

of such Estate tayl is good, for as well as the Estate may be created by Custome, as well it may be Barred or discontinued by Surrender by Custome.

Brandons Case.

NOTE if a Mannor or other signiory be extended upon a Sta∣tute, * 1.97 and a Ward falls which is a sufficient value to make satis∣faction of the Extent, yet this shall not be any satisfaction in ten∣der to satisfaction: Insomuch that this is only the fruit of Tenure, and not like to cutti ng of Trees, nor to digging of Cole or other Ore: And so Coke cheife Justice, that it hath been adjudged, and with this agreed the booke of 21. Ed. 3. 1.

The manner to make Summons in Dower, if the Land lieth in one * 1.98 County, and the Church in another County: Then upon the Statute the Sheriffe ought come to the next Church, though it be in another County, and there make Proclamation, asthe Auditors in Accompt ought to commit the Accomptants found in arrerages to the next Gaole, and there ought to be committed though that they are in another County.

The words of a Patent of a Judge of the Common Bench are as * 1.99 follows, that is to say, James by the grace of God, &c. Know that we have constituted Humphrey Winch Serjeant at Law, one of our Justices of the Common Bench, during our good pleasure, with all and singuler Vales and Fees, to the same office belonging and appertaning, In Witnesse of which, &c.

Michaelmasse 1611 9. Jacobi, in the Common Bench. Jacob against Stilo. Sowgate.

IN an Action upon the Case for slanderous words: The declarati∣on * 1.100 was, that the Defendant said of the aforesaid Plaintiff, that he is perjured, to which the Defendant pleads, that the Plaintiff ano∣ther time hath brought an Action in the Kings Bench against the same Defendant for that, that he the said Plaintiff was perjured, and had cozened John Sowgate, and that the Defendant had pleaded to all besides these words, (Thou art perjured) not guilty, and to the words (thou art perjured) he Justifies that the Plaintiff was perjured in making an Affidavit in the Star-chamber, and this Issue was Joyned, and it was found for the Defendant, but it was not pleaded that any Judgement was given upon it, And Haughton Ser∣jeant * 1.101 for the Plaintiff, which had Demurred upon the Defendants Plea: Argued that the Plea is insufficient, for if it shall be inten∣ded

by that, that the Plaintiff was afore times barred, if it be in a reall Action, it ought to be averred, that it is for the same Land, and if it be in a personall Action it ought to be averred that it is the same Debt or Trespasse, and if it be pleaded by way of Justification, then he ought to have averred also, that the Plaintiff hath taken a false and untrue Oath, upon which Issue might have been taken: But here nothing is pleaded but the Record, and nothing averred (in Facto) So that the Issue cannot be taken upon it, for the plea∣ding is only of Record, and that the Defendant for the cause afore∣said in the Record afore said mentioned, spoke the said words, and this is not good, for there is not contained any cause of Justificati∣on, as in Quare▪ Impedit, in the 15. and 16 H. 6. The Defendant pleads that he was Incumbent by the cause aforesaid (and without that:) But this was no good Plea, for he ought to plead his Title specially. And also it is not pleaded as Estoppell, for then he ought to have relied upon that precisely, as 35. H. 6. in Replevin the a∣vowant relies upon discent, 30. assis. 32. 2. H. 7. 9. Also Estoppell it cannot be, insomuch that Judgement was not given in the first Action; Also it is not pleaded as Estoppell for the Plea is concluded Judgement if Action, where he ought to have relied upon the Estop∣pell, and peradventure also the Triall was voyd by unawarding of Venire Facias, or other Error; So that without Judgement it can be no Estoppell, and so he concluded and praied Judgement for the Plaintiff. Barker Serjeant argued for the Defendant, that the * 1.102 Declaration is very good, and notwithstanding that the words are generall; that is, he is perjured, yet this may be supplyed very well by the (Innuendo) as it appeares by James and Alexanders Case, 4. Coke. 17. a. And also that Estoppell by the Verdict is good without Judgement, as in Action of Debt, release was pleaded, and Issue joyned upon that, and found for the Defendant, and after another Action was brought for the same Debt, and agreed that the first Virdict was Estoppell, 2. Ed. 3. 19. b. c. And he cited Baxter and Styles Case to be adjudged in the point, that the Estop∣pell is good, and also Vernons Case, 4. Coke where the bringing of a Writ of Dower, Estopped the Wife to demand her Joynture, and so concluded and prayed Judgement for the Defendant: Coke, the Count is good being of the aforesaid Plaintiff, and may after be supplyed by (Innuendo) though that the words after are generall; But if the words were generall, that is, He is perjured, without saying that the Defendant spoke of the aforesaid Plaintiff, these English words following (Videlicet) he (Innuendo) the Plaintiff) * 1.103 is perjured, this is not good, and shall not be supplied by (Innu∣endo) and he said that another time convicted is a good Plea in case of life without Judgement, but this is in favour of life, but in tres∣passe

it ought to be averred, that it is the same Trespasse, and also there ought to be Judgement, and the Defendant ought to relye upon that as an Estoppell, and agreed by all that Judgement should be••given for the Defendant, if cause be not shewed to the contrary such a day, &c.

Michaelmass, 1611. 9. Jacobi, in the Common Bench. Hall against Stanley.

IN Trespass for Assault and Imprisonment, the Defendant justifies, * 1.104 insomnch that the Action upon the case was begun in the Marshal∣sey for a Debt upon an Assumpsit made by the Plaintiff, and that upon that Capias was awarded to this Defendant being a Minister of the said Court to Arrest the Plaintiff to answer in the said Action, and that he by force of that Arrested the Plaintiff, and him detained till the Plaintiff found suerties to answer to the said Action, which is the same assault and Imprisonment: To which the Plaintiff re∣plied, that none of the parties in the said Action were of the Kings houshold, and so demanded Judgement, upon which the Defen∣dant Demurred in Law: And Dodridge the Kings Serjeant for the * 1.105 Defendant, that the Court of Marshalsey may hold Plea of Actions of Trespasse, by the parties or any of them of the Kings house or not, and he intended that the Jurisdiction at the Common Law was generall, and then they have Jurisdiction of all Actions as well reall as personall, and though that their Jurisdiction be in many cases restrained, yet in an Action of Trespasse there is not any restraint, but at this day they have two Jurisdictions: That is, in Criminall cases, and also in Civill causes, within the Virge: See Fleta book the second and third, where he discribes the Jurisdiction of all Courts, and amongst them the Jurisdictions of this Court, and also Britton which wrote in the time of Ed. 1. lib. 1. chap. 2. which saith it was held before Bygott who was then Earle of Nor∣folke and Marshall, and their Authority and Jurisdiction was ab∣solute and their Judgements not reversable unlesse by Parliament, and this appeares by the Statute of 5. Ed. 3. chap. 2. that they might hold Plea of things which did not concerne them of the house∣hold, and also the words of the Statute of Articuli super chartas chap. 3. 28. Ed. 1. provides that the Marshalsey shall not hold Plea of free hold of covenant, nor of any other contract made between the Kings people, but only of Trespasse made within the Kings house or within the Verge, and of such Contracts and Covenants which one of the honse made with another of the house and within the house and in no other place, where Trespasse is Limited to the Kings

house or within the Virge, but no restraint that the parties shall be of the Kings House, or otherwise it shall not be intended which shall be only those which are of the Kings House, insomuch that the Trespasse is limited to be made within the Virge, also he sayd it was a statute made 30 Ed. 1. which provides, that if any causes arise amongst the Citizens of London only, that this shall be tryed amongst the Citizens; but if it be between them of the House, it shall be tryed by them of the House, by which it appears that they may hold plea between Citizens of London, where none of the par∣ties are of the Kings House, also the statute of 6 Ed. 3. chapter 2. provides that in Inquests they shall be there taken by men of the Country adjoyning, and not men of the Kings Houshold if it be not betwixt men of the Kings Houshold if it be not for Contracts, Cove∣nants and Trespasses made by men of the Kings Houshold of one part, and that the same House which referrs to the statute of Articuli super chartas before cited, and this expounds, and so the Statute of 10 Ed. 3. chapter 2. provides that in Inquests they are to be taken in the Marshalsey, that the same inquests shall be taken of men the Country thereabouts, and not by People of the Kings, House, if it be not of Covenants, Contracts, or Trespasses made by people of the same House, according to the Statute made in time of the Grand Father of the said now King, and according to that the use hath been, that is, if none of the parties of were the Kings house then the tryal had been by the men of the country adjoyning. And if one of the parties be of the house, and another not, then the tryall is by party Juries: and if both the par••ies be of the house, then all the Jury hath used to be of the house; and if the Cause be be∣tween Citizens of London, then the tryall hath used to be by Citi∣zens of London, and in the Book of Entries, the same plea was plea∣ded in false Imprisonment, 9, 10. and the Register, fol. 1 1. A. in a∣ction upon escape in Trespasse, and to the Books of 7 H. 6. 30. 10 H. 6. Long, 5 Ed. 4 19 Ed. 4. 21 Ed. 4. He saith, that none of these Books are in action of Trespasse but one onely, and that is mistaken in the principall point, and so may be mistaken in one by case: And the Booke of 10 H. 6. 30. is directly in the point; but Brooke in a∣bridgement of that saith, that the practise and usage of the Court was otherwise: But it may be objected that this is (Indebitatus as∣sumpsi••) which is in nature of an action of debt, and founded upon contract; he said that Fitzherbert in his Natura Brevium said, that there are two sorts of Trespasses, that is, General, and upon the Case, and Trespasse is the Genus, and the other are the Species, and that the action is founded upon breach of promise, which is the Trespasse, as for not making of a thing, which he hath promised to doe, and it is Majesteale breve, and not breve formatu••, and so is an action of

Trover and Conversion, or Assumpsit, are Writs of Trespasse; but ad∣mit that no, yet action of false Imprisonment doth not lye, for hee ought not to dispute the authority of the Court; for the duty of his Office is only to be obedient and diligent, for otherwise he should be judged of the Judg: And who by the appointment of the Judge doth any thing, doth not seem to do it deceitfully, because it is of necessi∣ty he should obey; and 14 H. 8. 16. a Justice of Peace awarded a War∣rant to arrest a man for suspition of Felony, where his Warrant was void, and yet the party to whom it was directed, justifies the ma∣king of the Arrest by force of that. And 12. H. 7. 14. Capias was a∣warded to the Sheriff without original, & yet it was a sufficient War∣rant to the Sheriffe: and 22 Assis. 64. Court awarded a Warrant, where they had no Jurisdiction, and yet it was a sufficient Warrant for him to whom it was directed. And so in Mansells case, if the She∣riffe execute an (habere facias sesinam) awarded upon a void Judge∣ment, this is a sufficient Warrant for him. So in this case allowing that the Court hath no Jurisdiction, yet the Plaintiff cannot be re∣tained by this action, but is put to his Writ of Error, or to his action upon the Statute, and so he concluded, and prayed Judgment for the Defendant.

Hutton Serjeant for the Plaintiff argued to the contrary, and hee * 1.106 intended that Judgment should be given for the Plaintiff, for the matter, and also for the Parties, and that the Judgement, and all o∣ther proceedings in the Marshalsey were meerly void; and he denyed that they had originally such absolute jurisdiction, as Fleta pretended, for originally that was only for the preservation of the peace, as it ap∣pears by the stile of the Court, and also by the diversities of the Courts, and that Criminall causes which require expedition, are there only tryable, and that civill causes are incroached of later times, and it was necessary to be restrained and reformed by Parliament: And it appears by the Statute of Articuli super Chartas, that they have encroached to hold plea for free-hold; and for that the Court which is mentioned in Fleta, cannot be otherwise intended then the Kings Bench, which then followed the Kings Court. And also that they have not incroached only upon matters, as to hold plea for Free-holds, but also to persons and place where Contracts and Trespasses were made, and this was the cause of the making of the said Statute. And to this action of Trespasse for indebitatus assumpsit there begun, he intended that it is for another thing, of which they could not hold plea, and it might be criminall; for Civill is that which begun by con∣tract, and it is part of the commutative Justice, for which is recom∣pence given by one party to another, and is not founded upon the Contract, but is translated to an action of Trespass, which manner of Trespass is not within the Statute: and so he intended, that for the

matter it is not within the Statute: and then for the persons also, he intended that it is not within the Statute, and this appears by the words of the Statute of 28. Edw. 1. Articuli super Chartas, and to that 10. H. 6. 130. it is adjudged that Judgement in such case there given is void, and Coram non Judice, so 7 H. 6. 30. expresses the cause to be, insomuch that none of the parties are of the houshold of the King, 4 H. 6. 8. 19 Edw. 4. 8. 5. Edw. 4. 32 H. 6. Rot. 27. And he cyted also Michelburns Case to be adjudged upon a Writ of Error, in the Kings Bench, 38 Eliz. That they could not tender a Plea in Trospasse for Trover and Conversion, if none of the parties were of the Kings house: and further he said, that when a Court hath Juris∣diction, and errs in matter of proceedings, or in Law, there the Exe∣cution made by force of their Process shall be lawfull. But where the Judgement is void by default of Jurisdiction, as in this Case, there it is otherwise, as 10 H. 6. 13. Recovery of Land in the Spirituall Court is void; so Formedon commenced, & Judgment given upon that * 1.107 before the Judges of Assises void. So 36 H. 6. 32. Recovery of Land in Wales in this Court is void; and 8 Edw. 4. 6. Recovery of Land in ancient demesne is avoidable by Writ of Deceipt: But in the other ca∣ses before, the Judgment and Recovery is absolutely void, and (Co∣ram non Judice) for default of Jurisdiction: So in 9 H. 7. 12. b. Re∣covery of Land in Durham, Chester, or Lancaster, here is void for the same cause: And in this case also the said Statute makes that void by expresse words, see the statute of Articuli super Chartas, Chap. 3. * 1.108 And to the case of 14 H. 8. before cyted, of Warrant awarded by Justice of Peace; he agreed, that insomuch that the Justice of Peace had Jurisdiction of causes of Felony, and erred only in the forme and manner of his proceedings, and so in all the other cases which were put of the other part. And also hee agreed that a Writ of Error may be well maintained, if such Judgement which is void, as it was in Mi∣chelburns case, for the party may admit the Judgment to be but void∣able if he will. And to the exceptions to the pleading, that is, that the authority is not prosecuted, 1 Postea, that is, such a day, which was before the Judgment, and yet it seems good; and that in the first the authority was very well prosecuted in the 2 Postea was sufficient, and the other words, that is, (such a day) is but surplusage; and so he concluded, and prayed Judgment for the Plaintiff, and it was ad∣journed.

Michaelmas 1611. 9. Jacobi, In the Common Bench. Peto against Checy and Sherman and their Wives. Tri••. 9. Jacobi, Rot. 1151.

IN Trespasse and Ejectione firme, the Defendants pleaded, that one of the Defendants made agreement with the Plaintiff for the said Trespasse and Ejectment with satisfaction, and demands Judgment, if action, upon which the Plaintiff demurred in Law; and it was argu∣ed by Nicholls Serjeant for the Plantiff, that the agreement was no plea, though it be said by Keble in the 11. H. 7. 13. That though it be a Plea in Ravishment of Ward, quare Impedit, and quare ejecit infra terminum, insomuch that they are actions personall: But Wood denyed that, insomuch that Inheritance is to be recovered, and in Ejestione firme tearm shall be recovered; and for that it shall not be spoken, and of this is Wood expresly in the 13. H. 7. 20. b. That in E∣jectione firme agreement shall not be a plea, insomuch that the tearm is to be recovered, which is the thing in demand. And there also it is agreed, that in Waste brought against Lessee for yeares in the Tenet, agreement is good plea, and so Vavasor intended, if it be in the Tenet, but not if it be brought against Lessee for life: And also he intended that by Recovery in Ejectione firme, more shall be recovered then the tearm only, for by that the reversion shall be also reduced, and for that the Inheritance is drawn in question; and it is said in 11. H. 7. 13. that it shall not be a plea in Assise, insomuch that there the Free-hold is to be recovered, and by the same reason hee intended that shall be no plea, insomuch that more is to be recovered then in Assise, for there the Tenant only shall recover the free-hold, and his damages; but here the Tearm and the Inheritance also are reduced and revested: And this is the reason also which is given in 11. H. 7. 13. b. by Fisher: That if a man make a Lease for years, ren∣dering Rent, and after brings Debt for the Rent behind, the De∣fendant cannot wage his Law, notwithstanding that the action is per∣sonall: But this is more high in his nature, as it is there said, and yet there nothing shall be recovered, but only damages, for which a man may have satisfaction. Also he intended that it was not well plead∣ed; that is, that such agreement was had between the Plaintiff, and one of the Defendants, and betwixt those shall be intended those two only, and also Ipsum and Alios by his command••ment, and doth not shew that this was made by the other two by his commandement, and so he concluded, and prayed Judgment for the Plaintiff.

Shirley Serjeant for the Defendant, that the Plea is good, and that * 1.109

the nature of the Action is only Trespasse by force and arms, and differs from a Quare ejecit, but Ejectione firme differs from pre∣dict. infra terminum, and lyes against the immediate Ejector; but Quare ejecit lyeth against him which hath title, as he in reversion, 7 H. 4. 6. b. Ejectione firme was brought by Executors of Land let to their Testator for years, upon outing of the Testator by the statute of 4 Edw. 3. Chap. 6. which gives action for the Executors of goods taken out of the possession of their Testator: and it seems to him also that proces of Outlawry lyes in an Ejectione firme, but in Quare ejecit infra terminum only summons. So it is 11. H. 7. 13. There is a great difference between Waste and this, for there the Process is Distress, and other speciall Process: But so is it not here, but only the Process which is in other generall actions of Trespasse, and so is the ex∣presse opinion of Keble, in 11. H. 7. 13. That in ravishment of Ward, Quare Impedit, and quare ejecit infra terminum, that a∣greement is a good plea, and yet all these trench upon the Realty; and in ejectione firme, if the tearm expire, hanging the action, this shall not abate the Writ; but the Plaintiffe shall have Judgement for his damages, otherwise in a Quare ejecit infra terminum. And it was resolved 20 Eliz. That if an ejectione firme be brought at the common Law of Lands in ancient Demesne, that this shall not alter the te∣nure, insomuch that it is meerly personall, and the damages are the principall which are to be recovered; and in 21 Edw. 4. 10. b. the difference is shewed between ejectione firme, and quare ejecit infra terminum, for one lyes against the Lessor, or other Ejector immedi∣ately, and the other lyes against the Feoffee of the other immediate Ejector, and the first is by force of armes, and the other not, and it alwayes lyes against him that is in by Title, and the first against him which is the wrong doer; and hee intended that the agreement with one of these Defendants is good, for it is satisfaction, and discharges the action as release, the which every one which hath it may plead; and here it is pleaded with satisfaction, that is obligation, upon which the Plaintiff may have action, and so he concluded and prayed Judge∣ment for the Defendants.

Wynch Justice argued this case, notwithstanding that hee had not * 1.110 heard any argument at the Barr, this being the first case that he argu∣ed after he was made Justice of this Court, and he delivered his opi∣nion that the agreement was a good Barre; and he said, that the dif∣ference is where the thing to be recovered is in the Realty, and where it is in the Personalty, as it is agreed in Blakes Case, 6 Coke 43. b. So that here the only question is if this action be in the Realty, or in the Personalty, and it seems to him that it is in the Personalty, and that it is of the nature of Trespass, and the tearm is not anciently to be recovered, as it is 6. R. 2. Fitz. Na. Bre. and it is within the sta∣tute

of 4 Edw. 3. Chap. 6. which gives action to Executors for goods carryed away in the life time of the Testator, as it is 7 H. 4. 6. b. And to objection, that ancient Demesne is a good plea, and for that is in the Realty, and hee said, and so it is in Accompt, and Accompt is not in the Realty; and the reason why it shall not be a Barr in Assise, is in so much, that there the Free-hold shall be recove∣red, but this fails here: so in Waste also this toucheth the Inheri∣tance; but here the Inheritance doth not come in question, but the tearm only; and it doth not appeare to the Court, that it concerns Inheritance, for it may be betwixt the Lessor or another which claims under him, and the Lessee. And if a Husband which hath a tearm in right of his Wife, submits himself to Arbitrement, this shall not bind the Wife, but shall bind the Husband, and shall be a Barr, if the Wife hath not Interest, and so he concluded that Judgment shall be given for the Defendants, and that the agreement is a good Barr.

Foster Justice intended that the agreement is a good Barr in an E∣jectione▪ * 1.111 firme, &c. And it seems that it is no question but that the a∣ction is personall, and yet hee agreed that ancient Demesne is a good plea. So in debt, receipt of part hanging the Writ abates all the Writ. And 21 Ed. 4. 10. b. Two Tenants in Common were of a Tearm: and 7 H. 4. 6. b. Executors shall have an action upon Entry made in the time of their Testator by the statute of 4 Edw. 3. Chap. 6. and in this the Plaintiff shall recover his Tearm; but he denyed that the reversi∣on is reduced by the recovery, nor revested in the Lessor till the Les∣see enter. And to the Objection that the Realty and Inheritance may come in question in this, that is not to the purpose, for so it may in an action of Trespasse. And he intended there is no difference between agreement and Arbitrement, and agreed that none of those is a plea where the Inheritance or Free-hold comes in question. And he conceived that Arbitrement for free-hold is not good, unlesse the submission be by Deed indented; for by Obligation with Condition is not sufficient, 11 H. 4. 44. b. and it is not in difference, 14 H. 4. that in ravishment of ward submission may be without Deed, insomuch as it is in the personalty, and he intended that there is no difference between that and Ravishment of Ward, and Ward is but Chatt••ll, so is tearm which may be sold by word, as well ••s the possession may be sold by word, so may the right of that be extinct by word. And as if a may be bound to pay a certain summe of money at a certaine day, and the Obligee ac∣cept parcell in satisfaction before the day, and that is very good: So in this case acceptance of a summe of lesse value may be a satisfaction of such personall thing, 4 H. 8. Dyer 1. 8 Edw. 6. Dyer, 19 H. 6. 9 H. 7. And so he concluded, that for that nothing is to be recovered but Chattell, that for that the agreement shall be good plea.

Warburton Justice agreed that the agreement should be good in

Ejectione Firme, insomuch that this is meerely personall: And he argued that it is no Plea in assise insomuch that this is reall, and there the Free-hold is to be recovered, and this is the reason that waging of Law lieth in Debt upon arbitrement, insomuch that the seale of the Arbitrators is not annexed unto it, and for that to him it is but only matter in Deed, 13. Ed. 4. And he intended that agree∣ment * 1.112 with satisfaction is as much as Arbitrement, for a personall thing cannot be satisfaction for a reall thing, and that is the cause that it cannot be a Barr in Debt upon arrerages of accompt, inso∣much that that is founded upon Record, and is a thing certaine: And in wast it is no Plea, insomuch that this is a mixt Action, if it be against a Lessee for life, otherwise if it be against a Lessee for yeares, for a Tearme is taken in 7. H. 4. 6. b. to be within the word (Goods,) and an Executor may have an Action upon that, (of goods carried a way in the life of the Testator) And though that the Entry abate the Writ, yet this doth not prove that it is more then a Tearme, and though that the Tearme determine hang∣ing the Writ, this shall not abate the Action, but the Plaintiff shall recover Dammages; and in Ravishment of Ward, Summons and Severance lies, and the Body of the Heire shall be recovered, and so in Quare Impedit Summons and Severance lies, and the pre∣sentment shall be recovered and Dammages, and yet the principall is but presentmemt, which is but a Chattell, and for that agreement shall be a Barr, and so he concluded that Judgement shall be given for the Defendant, and that the agreement is a good Plea, Coke cheife Justice agreed that the agreement is a good Plea: & he thought that that savered of Realty, for that, that the Tearme is to be recovered, and of the personalty in respect of the Dammages, which are to be recovered, and that in all Actions, where money or Dam∣mages are to be recovered, (agreement) is a good Plea, as in 47. Ed. 3. 24. and 10. Ed. 3. in Debt upon a Lease for yeares, concord is a good Plea, and 7. Ed. 4. 23. in Detinue for charters it is a good Plea, and in 6. Ed. 6. Dyer 75. 25. it is a positive rule, that in all Cases and Actions, in which nothing but amends is to be recovered in Dammages, there an agreement with an execution of that is a good Plea, and for that in Detinue it shall be a good Barr: So in Cove∣nant it was adjudged in Blakes Case, 6. Coke 43. 6. As where an Obligation is with a Condition, to pay money at such a day, the payment of another thing is good, if the Obligation be to pay a certaine Sum of money: But if a man be bound in a Sum of money, to make another Collaterall thing, the acceptance of an other thing Collaterall shall not be a Barr, for money is to the measure, and the price of every thing, if a man be bound in two Horses to pay one, acceptance of another thing shall be no Barr: But the acceptance of

such a Sum of money in satisfaction is good Barr, for this is the just Estimation and measure of every thing, see 12. H. 4 Where a man was bound in an Obligation with Condition, that he shall make acknowledgement of the Obligation of twenty pound to the Obligee before such a day, &c. And agreements are much fa∣voured, for it is a Maxim and Interest of the Common-Wealth, that there be an end of suits, for by Concord small thing in∣crease, and by Discord great things are consumed, and the be∣ginning of all Fines is, Et est Cordia talis, &c. and the 11. of Rich. 2. Barr. 242. In Debt upon a Lease for yeares, the Defendant pleads that by the same Deed by which the Land is let, the Plain∣tiff grants, that the Defendant ought to repaire the houses lett, when they are ruinous, at the costs of the Plaintiff, and he re∣taines the Rent for the repaire of the houses being ruinous and a good Barr: And if it be a right of Inheritance or Free-hold that can∣not be barred or extinct by acceptance of another thing, though it be of other Land, as of another Mannor, as it is agreed in Vernons Case 4. of Coke: A woman accepts Rent out of the Land of which shee is not Dowable in recompence of her Dower, this shall not be a Barr, 5. Ed. 4. 22. 3. Eliz. Dyer, and he said that the book of 11. H, 7. 13. is misprinted, insomuch that it is reported to be adjudged: But in truth this was not adujdged, for then it would not say in 13. H. 7. 20. the residue before 11. H. 7. 13. And in the 16. of H. 7. warranty, it is agreed that in wast against Lessee for yeares. Agree∣ment is a good Plea, otherwise if it be against Lessee for life: And if they have adjudged, 11. H. 7. 15. which was so small a time be∣fore, they would not have adjudged the contrary in 16. H. 7. and Hillary 6. Ed. 6. Bendlowes in wast against Lessee for yeares in the Tenet: Agreement is affirmed to be good Barr: And in the book of Reports in the time of H. 7. printed in time of H. 8. the yeare of the 11. of H. 7. there was no print at all: And he then upon that inferrs, that as well as a man might agree for Trees, so well might he agree for Tearme; and to the booke of 9. H. 5. 15. a. That re∣lease of one Plaintiff in an Action of wast is a good Barr, he said that this is to be understood in wast of the Tenant, and then it shall be a good Barr, see in the 12. of Ed. 4. 1. a. Two joyne in an Action of wast, and the one was summoned and severed the other recovered the halfe of the place wasted; and in the 26. H. 6. 8. Agreement is a good Barr in an Action of wast, and he intended that in all Acti∣ons by force and Armes, where a Capias lies at the Common Law: Agreement or Arbitrement are good Pleas, as Ravishment of Ward which is given by Statute in lieu of Trespasse, for taking of a Ward, where a Capias lies at the Common Law, and Agreement was a Bar, and for that now Agreement shall be a Barr in Ravishment of a Ward:

And he intended that an Ejectione Firme which is Trespasse in his nature, and the Ejectment is added of later times: And in all their Entries, this is entred Trespasse, and severs the Trespasse from the Ejectment, and the Ejectment will vanish, and the Statute of 4. Ed. 3. chap. 6. which gives Action to Executor, of goods carri∣ed away in the life time of the Testator, extends to that which proves this to be Trespasse, for by the Statute the Executors may have Ejectione Firme for Ejectment made to their Testator, not∣withstanding that ancient Demesne is a good Plea in that, and in the 44. Ed. 3. 22. That is called an Action of Trespasse, and so all the Entries are De Placito Transgressionis, and in the book of Entries, in Mayhme it is cited to be adjudged 26. H. 6. Trin. Rot. 27. that concord is a good Plea in an appeale of mayne 35. H. 6. 30. But in an Action in the realty it is no Plea, otherwise in Quare Impedit, for there nothing is to be recovered, but that which is personall, and he intended that Agreement by one of the Defendants in perso∣nall Action is a good Barr, as in 36. H. 6. Barr, concord made by the freind of one of the parties was a good Barr Statham, Covenant ac∣cordingly, and 35. H. 6. 〈◊〉〈◊〉 7. H. 7. One of the petty Jury in At∣taint, pleads agreement and good, and in an Ejectione Frime, Lease made to try Title is not within the Statute of buying of Titles, if it be not made to great men, but to a Servant of him which hath the Inheritance; and cannot mainetaine or countenance the Action, and Bracton. fol. 220. Lessee for yeares hath three remidies if he be evicted, that is Covenant, Quare Ejecit infra Terminum against the Feoffee of the Ejector, or an Ejectione Firme against the Imme∣diate Ejectors, and in Ejectione Firme the Tearme shall be recover∣ed, as 12. H. 4. 1. H. 5. and 11. H. 6. 6. Non-Tenure is a good Plea in Ejectione Firme; ergo the Tearm shall be recovered, 7. Ed. 4. 6. 13. H. 7. 21 and 14. H. 7. It is adjudged that the Tearme shall bee recovered in Ejectione Firme, and so he concluded, that the agree∣ment shall be a good Barr, because Wise men seeke peace Fooles seeke strifes: And that Judgement shall be given for the Defendant, which was done accordingly.

M••hcaelmass, 1611. 9. Jacobi, in the Common Bench. Mallet against Mallet.

LANDS were given to two men; and to the Heires of their two Bodies begotten, and the one died without Issue, and the re∣mainder of the halfe reverted to the Donor, and he brought an Acti∣on of wast against the surviving Donee of houses and Lands to him demised, and agreed that the Writ was good, but it was a question

if the Count shall be generall, or of a halfe only, notwithstan∣ding that both the parties were Tenants in Common of the rever∣sion.

Michaelmas 1611. 9. Jacobi, in the Common Bench. Ralph Bagnall against John Tucker. after 83.

TRINITY 9. or Micaelmasse 8. Jacobi, Rot: 3648. The Case was, Copy-holder for life, remainder for life purchaseth the Fre∣hold and levies a Fine with Proclamations made five yeares-passe, and then he died, if the remainder were bound by the Fine or not, was the question, and it seemes that it shall not be Barr, for he is not turned out of possession in right. So if a man hath a Lease for remainder for yeares and the first Lessee for yeares purchase the free-hold, and levie a Fine with Proclamations, and five yeares passe, this shall not barr the remainder for yeares, insomuch that this was Interest of a Tearme, and remaines an Interest as it was without any alteration, and it was not turned to a Right. And yet it was agreed that the Statute of buying of pretenced rights extends to Copy-holds: See Lessures Case 5. Coke 125. See Pasche 1612. for the Judge∣ment.

Note if an Attorney of this Court be sued here by Bill of Privi∣ledge, he ought not to find Bayle: But if he be sued by Originall, and comes in by Capias, then he ought to find Bayle.

In covenant upon a Lease made by the Dean of Norwich, Prede∣cessor * 1.113 to the Dean that now is, and the then Chapter of the Foun∣dation of Ed. 6. King, for injoying of Land devised to the Plaintiff for three Lives discharged of all incumbrances, and also to accept surrender of the same Lease, and to make a new, and for breaking of covenant, the same Dean and Chapter in such a yeare of the Raine of H. 8, had made a lease for years not determined, by which the lands devised were incumbred, upon which the Defendant demurred. And * 1.114 Hutton Serjeant for the Defendant argued, that the Lease was by the Statute of 13 of Eliz. as to the successor of the Dean which made it, for that it was a Lease for years in being at the time of the making of that, as it is resolved in Elmers Case upon the Statute of 1 Eliz. if a Bishop makes a Lease for years, and after makes a Lease for life▪ the Lease for life is void to the Successor, and so it is in the case of Dean and Chapter, and though that the words of the Statute are generally that such a Lease shall be void to all intents, purposes, and Constructions, yet he intended that it shall not be voyd against the Bishop himselfe, as it was resolved in the case of the next Advowson

by the Bishop in Singletons Case, cyted in Lincolne Colledge Case 3. Coke 59. b. And he intended if the Lease be voyd against the Succes∣sors that then the covenants also are void, as it is agreed in the 28 H. 8. 28. Dyer 189. 190. and he cited one Mills case to be adjudged in the 29 and 30. Eliz. in the Kings Bench, that if a Parson make Lease and avoid by non-Residence, the Covenants also are void as well as the Lease, and also he intended that the Lease for life was void, insomuch that it was to be executed by a Letter of Attorney, and the Attorney had not made livery till after two Rent dayes were past, and for that the Livery was not good, for when a man makes a Lease for life rendring Rent, with Letter of Attorney to make live∣ry, here is an implyed condition, that Livery shall be made before any day of payment be incurred, and it is as much as if a man had made a Lease for life, without any Letter of Attorney to make Li∣very before such a day there, if the Attorney do not make Livery before the day, but after the Livery is void, insomuch as it is contrary to the Condition, so in the case here, for if Livery made be after a Rent day, it may be made after twenty, and so immediate∣ly before the end of the Tearme, and if the Rent be void, for this cause the Covenants also are void, and if a man bargain and sell his Mannor, and the Trees growing upon it, the Trees do not passe without Inrollment, insomuch that it was the intent of the parties that it should so passe, and for that they do not passe without the Mannor, also he intended that the Count is repugnant, insomuch that that containes that the last Lease for life was made in the time of Ed. 6. and after by the Dean and Chapter of the foundation of Ed. 6. and after that containes that the same Dean and Chapter have made a former Lease in the time of H. 8. Which cannot be if the Dean and Chapter were of the Foundation of Ed. 6. and for that the Count ought to have contained the alteration of the foun∣dation, as in case of prescription, as in Tringhams case, 4. Coke 38. Wyat Wilds Case 8 Coke 79. 2. and 3. Phil. and Mary Dyer 124. A good Case, and he intended that a declaration ought to have precise certainty, as in 8. and 9. Eliz. 254. Dyer, for a thing which cannot be presumed, shall not be intended, as it is agreed in Pigotts Case 5▪ Coke 29. a. otherwise of Plea in Barr, for that is sufficient if it be good to common intent, also he intended that there is variance between the Count and the Covenant, for the declaration is that the Dean and Chapter covenanted with the Plaintiffs, the Covenant is generall, that is, that the Dean and Chap∣ter covenant, and doth not say with who, and for that the Count also shall not be good, and so he concluded and prayed Judgment for the Defendant.

Haughton Serjeant for the Plaintiff, intended that the Covenants * 1.115

shall not be voyd, notwithstanding that the Lease it self be voyd, & he intended that a lease made by a Parson shal be good against him∣self, but it shall be voyd by his death to the Successor, but a Lease made by a Dean and Chapter shall be void to the Dean himself, and the Covenant shall be in force, notwithstanding that the Lease be void, insomuch that the Covenants are collaterall, and have not any dependance upon the Lease, but to the inherent Covenants, which depend upon the Lease and the Estate, as for Reparations and such like shall be voyd by the avoidance of the Lease, but he in∣tended that Covenant to discharge the Land from incumbrances, doth not depend upon the Interest, but it is meerly collaterall, and for that it shall not be void, and with this difference he agreed, all the Cases put of the other part, as in 45 Ed. 3. 3. Lease was made to the Husband and Wife, the Husband dies, the wife accepts the Land, and shall not be charged with collaterall Covenants, not∣withstanding that shee agrees to the Estate, insomuch that they do not depend upon the Estate, and to the Livery made after two Rent dayes incurred, he intended that Livery is good, that notwithstan∣ding for the deferring of the Execution of a letter of Attorney shall not defeat the Lease, or other meane act which amounts to a Com∣mand, for the Less••r takes the profits in the mean time, and it is not like to Littletons case, that if a man devise his land to his Executors to be sold, and they take the profits and do not make Sale, that the Heir may enter, insomuch that the Executors have not performed the Condition, and it was not the intent of the Devisor that they should take the profits in the Interim to their own use, and he in∣tended that the declaration was not repugnant, for it is of the afore∣said Church, and not of the Dean and Chapter aforesayd, and also there need not such congruity, as it were the Foundation of the A∣ction, insomuch that this is only Allegation of the truth of the mat∣ter, see 1 H. 7. 18. For variance upon shewing in Deed, and 17 Ed. 3. 33. b. and here the aforesaid shew, that it is the same in substance though it vary in words, and though that the name is altered, yet are the same persons in substance and the same Body, and though that it be as it is intended to be of another part, yet it is but name, and the Foundation then is not Issuable, as if the King H. 8. had been the Founder and made speciall provision in the Foundation, that after the Time of Ed. 6. it shall be said to be the Foundation of Ed. 6. this shall be good, and so he concluded and prayed Judgment for the Plaintiff, see after adjudged.

Michaelmas 9. Jacobi 1611. In the Common Bench. The Bishop of Ely.

THE Bishop of Ely granted an Office with the Fee for the exerci∣sing * 1.116 of that, if it be an ancient office, it is a good grant, and if the Fee be newly increased, yet Foster Justice thought that the Grant shall be good for the Office, and for so much of the Fee as hath been anciently granted with the Office.

Michaelmas 1611. 9. Jacobi in the Common Bench. Holcroft against George French.

IN an Action upon the Case upon an Assumpsit, if the considera∣tion be Executory, then the Declaration ought to contain the time and place where it was made, and after it ought ro be averred In Facto, when it was performed or executed accor∣dingly, but if it be by way of Reciprocall agreement, then the Plaintiff may count, that in consideration that he hath promised for the Defendant, the Defendant hath promised to do another thing for him, there he need not that the Declaration contain time or place for the consideration, or otherwise that it is performed and executed.

But if in the first case, where it is executory, that is also an aver∣ment that it is executed there, if the Defendant plead Non Assump∣sit generally, and do not plead the speciall matter, he cannot af∣ter take exception to that Count for the Default aforesayd, where he pleads specially to that, as in an action of Trover the Conversi∣on ought to be averred to be in a certain place, and so in submission and Arbitrement, they are contained in the declaration, it need not to expresse any time or place certain, but if the Defendant, pleads that the Arbitrators made no award, or that the parties have not submitted themselves to their award, there the Plaintiff may re∣ply, that the Arbitrement or Submission was made at such a place, and this was agreed by all the Justices.

Michaelmasse 1611. 9. Jacobi, in the Common Bench: Sir Edward Puncheon against Thomas Legate.

IT was adjudged in the Kings Bench, and affirmed upon a Writ of Errour in the Kings Bench, that an action upon the case upon

an Assumpsit made by the Testator is very well maintainable against * 1.117 the Executor, and this was for Money borrowed, and so the Count speciall, but not upon generall, Indebitatus Assumpsit, but is good without any averment, that the Executors have assets over the pay∣ment of Debts due by specialty and Legacies, and he sayd, that the Record of the Case of 22 H. 8. with this agrees, and that the book in this is misprinted, and so Coke cheife Justice who publickly re∣ported this Judgment in the Common place, sayd, which was adjudged in the 11 H. 8. in this Court. * 1.118

Note that Land of which a Writ of Right Close lyeth, shall be assetts in a Formedon, and it is a Free-hold and not a Copy-hold, and so are all Lands in ancient Demesne, 3 Ed. 3. 14 H. 4.

It is no matter what is known to the Judge, if it be not in the form of Judgment.

Pasche 1611. fol. 50.

HAughton Serjeant for the Defendant, argued that the entry of him in Remainder is not lawfull, insomuch that he intended it is * 1.119 not any forfeiture of the Estate tayle, and first he argued that the condition is not good, but repugnant to Law, and for that voyd, and yet he agreed that Tenant in tayl may be distrayned from ma∣king unlawfull Acts, but here the condition tends to restraine him from doing of things which are lawfull as if a man makes a Gift in tayl, upon condition that the Wife of the Donee shall not be in∣dowed, or that the Husband of the Donee shall not be Tenant by the Curtesie, or that a Feoffee shall not take the profits of the Land, though that the profits may be severed from the Land, as in 16 Ed. 3. Formedon was brought of the profits of a Mill, yet the condition is voyd, insomuch that it is against the nature of an Estate tayl, or in Fee-simple to be in such manner abridged, so if a man makes a gift in tayl upon condition, that the Donee shall not make waste, the condition is void, for the making of wast is a priviledge which is inci∣dent to an Estate tayle, and for that the condition restraynes the Tenant in tayle of a thing which the Law inables him to do, the con∣dition is yoyd, so a Donee in tayle upon condition, that he shal not make a Deed of Feoffment or Lease for his own life, as it is agreed in Mildmayes Case, so here when the condition restraynes Tenant in tayl of concluding and agreeing, the which in him is not any wrong no more then if a man should make a gift in tayl upon condition that the Donee should not bargaine and sell the Land, this is voyd, inso∣much that he doth not make any wrong or discontinuance: So in the case here, for the thing which is restrayned, that is (conclu∣ding

& agreeing) is in it self a lawfull act, and also this is only the affe∣ctions and qualities of the minde, that they cannot make an Estate conditionall, if an open act be not annexed unto it, but he agreed that if a man make a gift in tayle, or a Lease for life of white acres, upon condition that the Donee or Lessee shall not take the profits of Black acre, this is a good condition, for this doth no wrong, nor is repugnant to the Estate given, or leased. And secondly, he ar∣gued, that admitting it is a good condition, yet here is no act done to operate (conclusion or agreement) which might make a forfei∣ture, for he sayd that Mildmayes case was an expresse condition, that Tenant in tayl should not suffer common recovery, the which he might lawfully do at the common Law, and he was not restray∣ned by the Statute of Donis conditionalibus, which was doubted till 12 Ed. 4. but here he intends that the (agreement and conclusion) in this case shall make no forfeiture, in respect that the Wife in whom the Estate, was marryed at the time of the making, and then when her Husband joynes with her, it shall be sayd the agreement of the Husband, and not the agreement of the Wife, and yet he a∣agreed the case in, 20 H. 8. b. Dyer 1. that if a man makes a Lease for yeares upon condition, that the Lessee his Executor or Assignes shall not alien, and there if the Wife executrix, and her second husband alien, that this shall be forfeiture, insomuch that there the condition followes the Estate, and is inherent to it, but here the a∣greement is collaterall and personall, and this depends upon the E∣state, as if condition be that a woman shall not beate J. S. and she takes a Husband which beats him, this shall not be forfeiture, for the condition is annexed to the person of the wife, and for that the beating of the Husband shall be no breach of the condition, but the wast of the Husband is the Wast of the Wife also, for that followes the Estate and is not personall, so he agreed that acts made by a Wife married, the which she is compellable to do are good, as par∣tition between Coparceners, as it is sayd by Littleton, or Administra∣tion of Goods by Executor or Administrator, or to make attorne∣ment, so of things made for her benefit, as accepting an Obligation, or the bringing of an action of Wast upon a Lease made by him are also good, but here the agreement and conclusion made by her and her Husband, are for the disadvantage of the Wife, and for that they are meerly voyd, as to the Wife, as in 3 H. 6. 19. 50. Con∣tract is made with the Husband and Wife and they joyne in debt up∣on that, and the writ abated, insomuch that the contract to the Wife is void, and shall be intended to be made with the Husband only, and so in Russells case 5 Coke 27. b. It is agreed that a marry∣ed Wife cannot do any thing as Executrix to the prejudice of her Husband, so in 45 Ed. 3. 11. Lease was made by Husband and wife,

and they covenanted to make suerties, and after the Husband dies, and the Wife accepts the Rent, and she shall not be bound by her Covenant, insomuch that this was Colaterall to the Estate, and if it be so that the agreement made by the married Wife is void to her, then it is no agreement and by consequence no forfeyture of the E∣state: Also he intended that the conclusion of the condition, for the words of the condition depends only upon the agreement and con∣clusion, and not upon any Act made: So that the suffering of any Act, doth not make any matter in the case, nor is to the purpose, and also the Replication relies only upon the agreement, so that the Recovery is not materiall: And he intended that it is a con∣dition, and that it cannot be Limitation, insomuch that the words are, that the Estate shall cease, as if such person had not been na∣med in the Will, and so that the Estate shall cease, as if he had been dead, which are words of Defeazance only and not of Limi∣tation, for he doth not appoint the Estate to continue so long: And also the words are repugnant, for it cannot make the Estate void as if he had not been named, for this is only the office of an Act of Parliament to make a man to be dead to one, and to be alive to another purpose; and so he concluded, and praied Judge∣ment for the Defendant: Nicholls Serjeant for the Plaintiff argued, * 1.120 that it is a matter sufficient upon which Judgement shall be given for the Plaintiff, and he first considered the words of the Condition; that is, if the devisees by themselves or by any other, shall make any conclusion or agreement, &c. This shall be a forfeyture; as in 28, H. 8. 13. Dyer 65. Where a Lease was made to the Husband and Wife, Proviso that if they are disposed to sell and alien the Tearme, that the Lessor shall have the first offer, and agreed, that if that be a Condition, and the Wife survive the Husband, notwithstan∣ding that it was not her Deed, but the Act of the Husband, she shall be bound by that, insomuch that her Estate is bound with that, and this was the pleasure of the Lessor, and she cannot hold it other∣wise then it was given, and 47. Ed. 3. 12. If a man makes a Lease for yeares to the Husband and Wife, and after outs them, they shall joyne in a Covenant, and so 48. Ed. 3. 18. They joyne in a Fine, yet there the Husband only brings Debt for the money, not∣withstanding that it be the Land of the Wife which was sold, and 38. Ed. 3. 9. If the Husband and the Wife joyne in Covenant: See 45. Ed, 3. 11. b. Where they joyne in Lease, and also to make further assurance, and the Husband and the Wife also charged with that, and so in the 20. H. 6. 25. Feoffment was made to a woman sole upon condition, and after she takes a Husband, which breakes the Condition, so in 35. assis. 11. A woman sole makes a Feoffment upon condition to re-enfeoff upon request, and after takes

a Husband, and then makes request and good, and if it be so in these cases, then in this case the Wife shall not be received, to say the agreement was made against her will, and for this, see the Statute which gives Cui in vita to the Woman, where the words are, to whom she in her life could not contradict.

And after this agreement, if the Husband give warrant of At∣torney to suffer Recovery this is sufficient, as it is agreed in 4. Ed. 3. and in 6. Coke 41. Mildmayes Case is agreed: That if a man make a Feoffment to a Husband and a Wife upon condition that they shall not alien, it is good to restraine alienation, by which it apeares that if they Joyne in Feoffment, that this shall be forfeyture, and yet this is the Feoffment of the Husband only, So here the agree∣ment of them, notwithstanding it is the Act of the Husband, yet insomuch that it is against the expresse words of the Condition, this shall be breach of the Condition, and he intended that the words of the Condition amount to as much, as if he had said, that neither the Daughter sole, nor the Daughter with another Daughter, or with another person shall make agreement, and the other person of necessity shall be intended her Husband, and so this agreement by the Husband and the Wife is within the words of the Condition: And also he saith that it is argued in Becwiths Case 2. Coke that a married Wife may declare a use of a Fine which is levied of her Inheritance, and if the Husband declare uses, the Wife may con∣trolle them: And if an Estate be conveyed with power, that the Husband with the assent of his Wife may revoke that, the assent of the Wife to such revocation is good: So if Proviso be, that a mar∣ried Wife only without her Husband may make revocation of uses and declare new this is good, and revocation made by the Wife, and declaration of new uses are very good, and he agreed that in matters of Record, the Husband cannot prejudice the Wife with∣out her consent, as Warrant of Attorney upon a Quid Juris Cla∣mat, or Per que servitia, or other Act which concernes her Inhe∣ritance, as in 9. H. 6. 52. 46. Ed. 3. 11. 43. Ed. 3. 5. and 27. H. 8. If a married Wife joyne with her Husband in a Feoffment of her owne Land, rendring Rent, and after the Husband dies and the Wife accepts the Rent, this shall bind her, which proves that it was her Feoffment as well as the Feoffment of the Husband. Secondly he considered the words of the Condition, which are: (Conclude and agree) &c, the which he intended not to be so uncertaine, as going about, but they are Issuable and triable, as it is agreed in 5. Ed. 4. 6. Com. 56. a. Wyrbish and Taylbois Case, consent to a Ra∣vishment within the Statute of 6. R. 2. is Issuable and triable, so of consent and agreement within this Condition, for though that the words are consent and agree, yet it ought to be otherwise an

Act subsequent, that is, reconvey, suffer, or other such Act or agree∣ment shall not be forfeyture, for to make Elopment which shall be a forfeyture of Dower, there ought first to be consent, but that is not sufficient, but there ought to be also departure from the Hus∣band and then the Law adjudges upon all the Act: So here when it is an agreement, and another Act subsequent, which is executed, then the Law shall judgeupon altogether: and for that this agreement consists of two parts, first when the Wife upon the motion of the Husband concludes and agrees to do the Act, which is the begin∣ning of the agreement, and then when the Husband and the Wife upon that joyne in Deed indent, as in this case, this is a consummati∣on and makes a breaking of the condition, and this is not like the condition in Myldmaies Case, where every going about ought to breake that, as if he goe to Councell to be advised upon his Estate: Thirdly he inten••ed that the condition is not repugnant to the Estate, in respect that an other thing is to be done before the forfeyture, and after the concluding and agreeing, for the Wife remaines in Seisin after the agreement, till the Recovery or other Act be exe∣cuted: And also he argued that before the Statute of 4. H. 7. of Fynes: Tenant in tayl might be restrained of alienation of his E∣state, for untill that he could not Barr the Issue in tayl. So at this day he intended that a gift in tayl upon condition that he shall levie a Fine without proclamations this is good, and out of the power which is given to Tenant in tayl to Barr the Estate tayl by the levying of a Fine: And levying of a Fine without proclamations is only a discontinuance, and so tortious, so when a Condition doth not extend to all acts, but only to all unlawful acts, and for that it doth not extend to a Recovery, for that is a lawfull Act, as it is agreed in Scho∣lasticas Case 10. H. 7. 10 11. H. 7. 6, 7. 21. H. 7. and 28 H. 8. Leomans Case: If an ecclesiasticall person hath a Tearme with this condition, that he shall not alien, and after comes the Estate, which inflicts punishment upon him for keeping of a Farme, and yet it seemes it is a good condition: But so upon the Statute of 4. H. 7. of fines, If aman hath agift in tayl with condition that he shal not alien: And after the Statute of 4. H. 7. is made which inables him to barr the Estate tayl by fine, yet he intended that the condition should re∣straine him from all unlawfull Alienations: And he intended as well as such a condition annexed to a Lease for life is good, so is it being annexed to an Estate tayl; for as well as it is in one case for the preservation of the reversion: So is this in the other case, and as in 6. Eliz. Dyer 227. Grant of Rent, Proviso that it shall not charge the person of the Grantor, shall not extend to the Executors of the Grantor, but shall be determined by the death of the Gran∣tor: And so as a condition that a married Wife or an Infant shall

not alien is good, insomuch that this is wrong, so he intended that if this were a good condition at the Common Law, that Te∣nant in tayl shall not alien the Estate by 4. H. 7. and 37. H. 8. doth not inable Tenant in tayl to make alienation against such con∣dition: And it hath been agreed that if a man make a Feoffment in fee of the Mannor of D. And after makes a gift in tayl of the Mannor of S. upon condition that the Donee shall not alien the Mannor of D. this is a a good condition, and in the 21. H. 7. 12. it is a∣greed that if a man make a Feoffment Causa Matrimonij Prol••∣cuti, and after Divorce is sued, there the free-hold shall be de∣vested out of the Husband without entry: And also he intended that a man might make a thing by devise, the which he could not make by Act executed, as Authority to sell his Lands to his Execu∣tors it good, and yet in all cases of Authorities by Acts executed the Authority shall cease with the life of the party: And for that there shall be one Law of devises, and another Law of Acts execu∣ted by the party in his life, as 29. assis. 17. and Fitz. Na. Bre. in ex gravi querela last case, the particuler Estate being created by devise, ceases, and remainder takes effect: And then to the excep∣tion, that the estate shall cease and remaine to him which had the next remainder, the which is repugnant, as it was intended, and so is Jermy and Arscotts Case: But here the words are that the Estate shall cease, as if the party to which that is limited were dead without Issue from the time of the Contract and agreement, and the remainder to him which hath the next remainder, and not the Issue of him which made the forfeyture, and also this Remain∣der from the time of the agreement and conclusion, and not from the time of the Act executed, for then it would be too late, for then the Estate is transferred to another, as it was in the cases put by Anderson in Corbetts Case: But here all the Estate limited to him which made the forfeyture shall be determined, and also he inten∣ded that the Reason that the Replication containes, that the parties being in actuall possession are only to satisfie the words of the Con∣dition: And so he concluded, and praied Judgement for the Plaintiff.

In dower the Demandant recovered Dower of tenths of Wool and * 1.121 Lamb, and how execution shall be made was the question: And the Justices intended that the Sheriffe might deliver the tenths of every 3 yard land, and assign the Yard Lands in certain: B••t after it was conceived that this would be uncertain and unequall, and for that the Sheriffe was directed to deliver the third part of all in generall, and yet the first was agreed to be good; but onely in respect of Ine∣qualities, as in dower of a Mill, the third Toll dish, and of a Villayne the third dayes work, as in 23 H. 8. And it was also agreed that the Sheriffe may assign this dower without a Jury.

It was moved, if an Attachment be granted against a Sheriffe for * 1.122 contempt after he is removed out of his Office; and the Justices in∣tended that not, insomuch that now he is no Officer, and for that he cannot be now fyned, and without fyne they did not use to Im∣prison, but the Judges would be advised to see the Presidents of the Court in such a case.

M••chaelmas 1611. 9. Jacobi, in the Common Bench. Kemp, and Philip his Wife, James, and Blanch his Wife, Plain∣tiffs, against Lawrere and Trollop, and the Wife of Gun••er, Executrix, during the minority of the Wives of the Plaintiffs.

THe case was, An Executrix during the nonage; for so it was, and not Administratrix, that is, shee was ordained Executrix, till * 1.123 the Wives of the Plaintiffs came to their full age, or were marryed, and then they should be Executrixes. And this Executrix during the minority, brought an action of Debt, and recovered; and before Execution the women Executrixes took Husbands, and brought Sci∣refacias upon the Record, to have Execution upon the Judgment a∣gainst these Defendants as Ter-tenants, which pleaded specially that they had nothing in the Free-hold, nor in the Land, but only a lease for yeares, and that the free-hold was in another stranger, upon which Plea the Plaintiffs demurred in Law. And Nicholls Serjeant * 1.124 for the Plaintiffs, that there is the difference betwixt this Executor and an Administrator during the minority, as in 26 H. 8. 7. a. if an Administrator have Judgment, and dyes before Executors or other have sued out their Letters of Administration, they shall have no ex∣ecution of this Judgement, insomuch as he comes in paramount the first Administrator, and as immediate Administrator to the first Inte∣state, as it is agreed in Shelleys case. So the Administrators of one Ex∣ecutor shal not have execution of a Judgment given for the Executor, as it is resolved in Brudenels case, 5 Coke, the 9. b. And in 21 Edw. 4. It is agreed, if two are made Joynt-Executors, and one of them dies, the other shall be sole Executor to the Testator: and if hee make his Executor, and dyes, his Executors shall be Executors to the first Te∣stator: And also there is in Fox & Gretbrooks Case in the Com: that one may be Executor for certain years, and another after, and this differs from the other cases; for in this case all these Executors were in privity one to another: but in the other case one comes paramount the other. But here they are all made by the first Testator and the Will: And he cyted the 2 Case in the Lord▪ Dyer, and 18. and 32, Edw. 3. there cyted, where a Purchasor brought a Writ of Errour,

and was not privy to the first Record. And Grantee of a Reversion brought a Scire facias against Conusee of a Statute-Merchant, al∣ledging that he had received satisfaction. So if a Parson of a Church recovers an Annuity, and after the Church is appropriate to a house of Religion, the Soveraign of the said house shall have a Scire facias. And so if union be made of two Benefices, and yet in all these cases there was no privity to the first Judgement: so he in reversion shall have Errour in Attain•• upon Judgment against his Lessee for life, and the Reason is given in Brudenels Case, that is, they which may have prejudice may have scire facias, and it is not like where two Joynt-tenants are, and one makes a Lease for years, and dyes, the other shal have the Rent, insomuch that he comes in by survivorship, and not in privity. But here the Executors come in in privity, as in case of two Executors are joyntly, one ••yes, the other which survives shall have Execution of Judgement given for them; for Administrator du∣ring the nonage is only to the use, commodity, and profit of an Exe∣cutor, and of a Testator: so that he being Executor to the Testa∣tor, he shall have execution. And to the second, that is, that the Defendants have nothing but for yeares, and that the free-hold is to a stranger, he intended that this is not good, & yet he agreed that in scire facias where a free-hold is to be recovered, speciall non-tenure is a good plea, as in 8 Edw 4. 19. and 8 H. 6. 32. but not of the contra∣ry, and there also generall non-tenure is no plea: But here where the free-hold is not to be recovered, nor one nor the other is a Plea; for it may be averred that the Defendant hath a release from him that hath the reversion: and as in 14 H. 4. 5. in scire facias to accompt against an Executor who pleads that the Testator was never his Bayliffe to give an accompt, and yet it is agreed that this hath been a good plea for the first Defendant, and this is the reason that it was not taken, nor was allowed for a good plea in the 11 H. 4. 11. Insomuch that this amounts to non-tenure; and in 44. and 45. Eliz. Mich. Rot. 834. it was adjudged in Scire facias, where the Defendant pleads that he was not Tenant of the Free-hold, and adjudged no plea: And so he said it was adjudged in the case of All-soules Colledge, in Scire facias to have execution of a Judgment in Ejectione firme: and the Defendant in the Scire facias pleads, that he was but Lessee for years, and ad∣judged no Plea, insomuch that nothing was to be recovered but only the tearm, and not the Free-hold, and so he concluded, and prayed Judgement for the Plaintiff in Scire facias. Harris Serjeant argued * 1.125 to the contrary, and he intended that the Return of the Sheriffe is void, insomuch that the Writ commanded him to give notice to the Tenants of the Land in Fee-simple, and hee did not return, that those which he had returned were Tenants of the Land in Fee-simple,

and so these words of the Writ are not answered, and so no Tenant is returned at all.

And it is not like to the Case in 2 H. 4. for there the Return was according to the Exigent of the Writ, but here it is not so. And to the first matter he intended, and agreed, that an Executor of an Ex∣ecutor may sue execution had by the first Executor, insomuch that hee comes in in privity. But he said, that so it is not in this case, and that there is no difference betwixt this case, and the case cyted in Shelleys case, that is, that Administrator of Administrator shall not sue ex∣ecution, insomuch that he comes in peramount Administrator, and accords with this Case, 2 Eliz. in the Lord Dyer: If two Joynt-Te∣nants are, and one makes a Lease for years, rendring Rent, and dyes, the Survivor shall not have the Rent, insomuch that hee commeth in peramount him; and to the other he intended, that the speciall non-tenure is a good plea, as well in Scire facias to have execution of da∣mages, as of Free-hold, as in 24 Edw. 3. 31. and 5 H. 5. 1. and 9. H. 5. 11. It is resolved, that in Scire facias speciall non-tenure is a good Plea, and the books of 8 H. 6. 31. cyted before, there is Joynt-te∣nancy pleaded to one part, and speciall non-tenure to the other part by Lease for years, and the question is if it might be pleaded a part: And in 8 Edw. 4. 14. Is Scire facias upon Recovery by Writ of Right Pa∣tent in base Court, and that the Defendant cannot plead release of the Lessor, and so the joyning of the Mise may be forfeiture of his Estate: And he said that it was adjudged in 16 Edw. 3. Scire facias 5. that scire facias to have execution of a Fyne shall not be sued a∣gainst a Lessee for years, but against him which hath the Free-hold; but where Debt or Damages are to be recovered, there it may be su∣ed against him which hath only Lease for years, insomuch that the possession is to be charged; and so he concluded, and prayed Judge∣ment for the Defendants, and it is adjourned.

Michaelmas 1611. 9. Jacobi, in the Common Bench. Crogate against Morris.

THe case was this, Copy-holder prescribes to have common in the Waste of the Lord, and brings action of Trespasse against a stran∣ger * 1.126 for his Beasts depasturing upon the Common there, and Harris * 1.127 Serjeant argued that this action is not maintainable for two causes. First, insomuch that he is a Commoner; for as it is said by Brook Ju∣stice, 12. H. 8. 2. a. Commoner cannot have an action of Trespasse, for the Common is not Common, but after the Commoner hath ta∣ken that, and then before that he hath taken that he hath no wrong nor damage, but the damage is to the Tenant of the Land: As if a

Lessee for years be outed, and he in reversion recovers in Assise, hee shall not have damage, insomuch that the damage was made to the Lessee, and the 22 Assis. 48. 15 H. 7. i 2. b. agreed that Commoner can∣not maintain action of Trespas, nor no other but the owner of the Soil, but 13 H. 8. 15. by Norwich, 15 H. 7. 6. 5 H. 7. 2. 24 Edw. 3. 42. Commoner may distrain and avow for doing damage. 2. He inten∣ded that this action is not maintainable, insomuch that every other Commoner may also have the action of Trespasse, for if it be wrong to one, it is wrong to every one of them, and so the stranger shall be infinitely punished, as in Williams Case, 5 Coke, 72. b. where it was adjudged an action of the Case doth not lye for the Lord of the Man∣nor to prescribe, that a Vicar ought to administer the Sacraments in his private Chappell, to him, his Men-servants and Tenants within the Precincts of the said Mannor, and adjudged that it doth not lye, insomuch that then every of his Tenants might also have action, and so the Vicar shall be alwayes punished: So in 27 H. 7. 27. a. A man shall not have an action upon the Case for nusance made in the high way; so it is 5 Ed. 4. 2. for trenching in the high way, see 33 H. 6. 26. a. accordingly; and so he concluded that the action is not main∣tainable, and prayed Judgement for the Defendant.

Dodridge the Kings Serjeant, to the exception which hath been * 1.128 made by the other party, that the Plaintiff ought to averr that he hath Beasts which ought to Common there, and that his Beasts have lost their Common, that need not to be averred, but it shall be pleaded by the other party; for if he have distrayned the Beasts of a stranger, doing damage, he need to averr no more in this action, and to the o∣ther matter, and the two Objections which have been made by the other part: First, that the Commoner hath no right to the Common, till he have taken it by the mouth of his Beasts; to that he said, that the Commoner hath right to that before that it be taken by such mouths of his Beasts: and notwithstanding that it seems by the time of Ed. 1. That Commoner cannot grant his Common till he have Sei∣sin of that, yet 12 H. 8. is otherwise, and that a Commoner may have an action the name implyes, for he hath Common with others, and a stranger which is no Commoner cannot do wrong, but this is damage to him; and he cyted Bracton, 430. that there are two forms of Writs, 1. Cursitory Writs, 2. Commanding Writs: The first of those which are formed, and are of course, and the others such of which there is no form, but are to be formed by the Masters of the Chancery, according to every particular Case: So that there is not a∣ny Case, but that the Law affords a Writ and remedy for that, as in 28 Edw. 4. 23. Action upon the Case was framed against an Officer, which gave priviledge to one as his servant, which was not his servant: and it is not like to the Case in 11 H. 4. 47. a. where a School-master

brings an action upon the Case against another for erecting of a School in the same Towne to his damage, but this was damage without Injury. But here the Commoner hath received wrong and damage; but yet he agreed that the Commoner could not have action of Trespass why he broke his Close, for that is proper for the owner of the Soile. But it hath been agreed to him, that he might distrain them, doing da∣mage; and the reason of that is, insomuch that he hath recei∣ved damage, and amends may be tendered unto him in recompence of his damages, without any regard to other Commoners, as it is a∣greed in 24 Edw. 3. 42. And to the Objection, that if one Commo∣ner may have action, then every Commoner may have the action, and so the stranger shall be infinitely punished. And to that he said it is a Publique losse and private; and when the publique wrong includes private damage to any man, there he to whom the private damage is done may have action: And he said, that the Register contains many Writs for publique wrong, when that is done to private men, as fol. 95. A man fixes a pale, crosse a navigable River, by which a Ship was cast away, and the Owner maintained action of Trespasse: And fol. 97. A man brought Trespasse against one which cast dung into a River, by which his Medow was drowned; so if the River be infected with watering Hemp or Flax, he which hath fishing there may main∣tain action of Trespasse: and 2 H. 4. 11. Action of Trespasse by one for ploughing of Land where one had a common way; and so it is 13. H. 7. 17. One brings an action of Trespasse against another for ere∣cting a Lyme Kill where many others are annoyed by that: So by an assault made upon a servant, the Master and servant also may have se∣verall actions; and so in the other cases many may have actions, and yet this is no reason to conclude any one of them, that hee shall not have his action, for in truth those are rather actions upon the Case, then actions of Trespass, for the truth of the Case is contained in the Writ. Also in this case it doth not appeare that there are any other Commoners which have Common there, and for that this Objection is not to the purpose: and it appears by Heisman and Crackesoods Case, 4 Coke 31. That Copy-holder shall have Common by prescripti∣on in the demesnes of the Lord, and so he concluded, and prayed Judgment for the Plaintiff.

Coke cheife Justice said, that it was adjudged in this Court, Trini∣ty, * 1.129 41▪ Eliz. Rot. 153. b. between Holland and Lovell, where Com∣moner brings an action upon the Case, as this Case is, against a stran∣ger which pleads not guilty, and it was found by verdict for the Plaintiff, and it was after adjudged for the Plaintiff, for insomuch that the Plaintiff may take them damage feasant that proves that he hath wrong, and this is the reason that he may distraine (doing dam∣mage.) And by the same reason, if the Beasts are gone before his com∣ming,

he may have action upon his Case, for otherwise one that hath many Beasts may destroy all the Common in a night, and doe great wrong, and sha••l not be punished: and it is not like to a Nusance, for that is publique, and may be punished in a Leet; but the other is pri∣vate to the Commoners, and cannot be punished in another place nor course: and he also cyted one Whitehands case to be adjudged, where many Copy-holders prescribe to have Loppings and Toppings of Pol∣lards, and Husbands growing upon the Waste of the Lord, and the Lord cuts them, and one Copy-holder only brings his action upon the Case, and adjudged that it was very well maintainable, notwithstan∣ding that every other Copy-holder may have the same remedy. And he said also, that so it was adjudged in the Kings Bench, Hillary 5 Jacobi, Rot. 1427. in George Englands Case: And 2 Edw. 2. b. Cove∣nant 49. If a man Covenant with 20. to make the Sea banks with A. B. and every one of them, and after he doth not doe it, by which the Land of two is drowned and damnified, and they two may have an action of Covenant without the others; Quere, for it seems every one shall have an action by himselfe. But Foster and Wynch Justices seemed that the Plaintiffe ought to sue in his Court, that the Beasts of the stranger escaped in the Common, or were put in by the Owner, for it may be they were put in by the Lord which was owner of the Soile, or by a stranger, in which cases the Owner of the Beasts shall not be punished: But Coke and Warburton seemed the contrary, and that this ought to be averred and pleaded by the Defendant in excuse of the Trespasse, as in action of Trespasse (why he broke his Close) And so it was adjourned, see Gosnolds case, 490. see Judgment.

Pasche 1612. 10. Jacobi, in the Common Bench. Henry Higgins against George Biddle.

IN Replevin the Defendant made Conusance as Bayliff to Sir Thomas Leigh, and Daine Katherine his Wife, intimating that Isabel Brad∣burn * 1.130 was seised of the place where, &c. in their demesne as of Fee, and so seised the first of June, 15 H. 8. gives this to the Lord Anthony Fitzherbert, and Maud his Wife, and to the Heirs males of their bodies, which have Issue Thomas Fitzherbert, Knight, John Fitzher∣bert, and William Fitzherbert, Anthony and Maud dyed, and the said place where, &c. discended to Sir Thomas Fitzherbert as Heire to the Donees to the Intayl: and the said Thomas Fitzherbert the 5. of Aprill, 6 Edw. 6. of that enfeoffed Humphrey Swinnerton, Ralph Cotton, and Roger Baily; to the use of William Fitzherbert, and E∣lizabeth his Wife for their lives, and after to the use of Sir Thomas Fitzherbert, and the Heirs of his body; the remainder to the use of

the right Heirs of the said William Fitzherbert: William Fitzherbert dyed, Sir Thomas Fitzherbert disseised the said Elizabeth, and the said John Fitzherbert had Issue, Thomas, and dyed, & Sir Thomas Fitz∣herbert dyed without Heir of his body, and the said place where, &c. discended to the said Thomas as Cousin & Heir of the said Sir Thomas, and Son and Heir of the said John Fitzherbert, which enters, and was seised to him and to the Heirs Males of his body, as in his Remitter. And the said Thomas Fitzherbert, 4 of Novemb. 39. Eliz. by Inden∣ture of Bargain and Sale enrolled in the Chancery within six moneths, bargained and sold the said Land to Sir William Leighton & his heirs, and Sir William Leighton, 5 of Novemb. 43. Eliz. by Indenture en∣rolled within six moneths for 4000. l. bargained and sold the said land where, &c. to Sir Thomas Leigh, and Dame Katherine, as aforesaid, and so avowed the taking for doing damage. And the Plaintiff for Barr to the said Avowry; pleads, that well and true it is, that the said Sir William Leighton was seised of the said place where, &c. in his De∣mesne as of Fee, as it was alledged by the Defendant: But further hee saith, that the said Sir William Leighton so being thereof seised, 1 De∣cemb. 44 Eliz. enfeoffed the Plaintiff in fee, and by force of that the Plaintiff was seised, and put in his Beasts into the said place where &c. without that, that the said Sir William Leighton bargained and sold the said Land in which, &c. to the said Sir Thomas Leighton, and Katherine his Wife, as in the Conusance hath been alledged by the Defendant, upon which the Defendants joyn Issue; and it was agreed by all the Justices, that notwithstanding this admission of the Par∣ties, is an Estoppell by the pleading, yet as well the Plaintiffe as the Defendant were admitted to give another evidence to the Jury against their own pleading; that is, that Sir William Leighton was not seised, and so nothing passed by the bargain and sale; and also that Sir Tho∣mas Fitzherbert had the possession by acceptance of the surrender of the estate conveyed to William Fitzherbert and his Wife, notwith∣standing it was admitted by pleading, that he had that by Disseisin: And all the Justices agreed, that the Jury shall not be concluded by the pleading of the parties, insomuch that they are sworn to speake the truth.

Pasche 1612. 10. Jacobi, in the Common Bench. Brook Plaintiff, against Cobb.

IN Wast the Plaintiff assignes waste in cutting down of 20. Oaks in such a Close, and 40. Oaks in such a Close, &c. Upon the Evidence * 1.131 it appears that the said Oaks were remaining upon the Land for stan∣dils, according to the statute; at the last felling of that, and they

were of the growth of 16. or 20. years, and that tithes were paid for it. And it was agreed by the Lord Coke and all the Justices, that this was no Waste, insomuch it was felled as Acre wood: And it was said by the Lord Coke, that though it be of the age of 20. or 24. yeares, yet if the use of the Parties be to fell such for seasonable Wood, this shall not be Waste; and if Tithes be paid for that, it ap∣pears that it is no Timber.

Doctor Mannings Case in the Star-chamber.

ONe Golding as an Informer, and not as party greived, exhibits his Bill in the Star-chamber against Doctor Manning, Chancellor * 1.132 to the Bishop of Exeter, for Extortion, Oppression, and other of∣fences. It was resolved, that when a Bill contains any particular of∣fences, and after the same Bill contains generall words, which in∣cludes many offences of the same kind; And the Plaintiff proves the particular offences, he may examine other particular offences also in∣cluded within these generall words, in supplement and aggravation of the particular offences contained in the Bill; and if they be proved, the Court will give the greater and high sentence against the Defen∣dant in respect of them, notwithstanding that they be not particu∣larly expressed in the Bill. But if the Plaintiff hath not proved any of the offences particularly expressed in the Bill, the Defendant shall not be censured by the particulars grounded upon the generall words of the Bill. And if a man which is not party greived, exhi∣bite Bill for offence made to another person, as against whom the offence was committed, he shall not be allowed as Witnesse, inso∣much as he is party greived, and by that he should be a witnesse in his own Cause.

Pasche 1612. 10. Jacobi, in the Common Bench. William Peacock Plaintiff, against Sir George Raynell.

IN the Sar-chamber the Plaintiff exhibits his Bill against the De∣fendant * 1.133 for Libelling and Infamous Letters, the which was in this manner, The Plaintiff being Heire generall to Richard Peacock which was of the age of eighty six yeares, and had Lands of Inheritance to the value of 8. or 900. pound per annum, and the Defendant had married the Daughter of Sir Edward Peacock, which was a yonger brother of the said Richard Peacock, and the said Defendant per∣ceiving that the said Richard Peacock, had purpose to settle his In∣heritance upon the said Plaintiff, and intending to remove the affection of the said Richard from the Plaintiff, and to settle that in

himselfe, writes a Letter to the said Richard Peacock, containing that the Plaintiff was not the Son of a Peacock, and was a hunter of Tavernes, and that divers women had followed him from London to the place of his dwelling, and that he did desire to heare of the death of the said Richard, and that all his Inheritance would not be sufficient to satisfie his Debts; and many other matters con∣cerning his Reputation and Credit, to that subscribed his name, & this ensealed & directed to the said R. Peacock: And it was agreed that this was a Libell, and for that the Defendant was Fined to two hundred pound, and Imprisonment according to the course of the Court: And the Plaintiff let loose to the Common Law for his re∣compence for the Damages he hath sustained: But if the Letter had been directed to the Plaintiff himselfe, and not to the third person, then it should not have been a Libell, or if it had been directed to a Father, for Reformation of any Acts made by his Children, it should be no Libell, for it is not but for Reformation, and not for Defamation; for if a Letter containe scandalous matter, and be di∣rected to a third person, if it be Reformarory and for no respect to himselfe, it shall not be intended to be a Libell, for with what mind it was made is to be respected: As if a man write to a Father, and his Letter containe scandalous matter concerning his Children, of which he gives notice to the Father, and adviseth the Father to have better regard to his Children, this is only Reformatory with∣out any respect of profit to him which wrote it: But in the first case the Defendant intended his profit and his owne benefit, and this was the difference.

Pasche 1612. 10. Jacobi, In the Common Bench. Randall Crewe against Vernon.

IN the Star-chamber it was resolved: That if the Defendant do not performe the Sentence of the Court, as here he was to make acknowledgement of his offence committed against the Court of Exchequer at Chester, and this acknowledgement was to be made at the great Assises at Chester, and he did nor performe the Sentence, and yet the Defendant could not be fined for this contempt, but on¦ly Imprisonment, and for that he was committed close Prisoner till he performed it: But he could not be fined, insomuch there was not any Bill, upon which this Sentence should be founded.

Pasche 1612. 10. Jacobi, in the Common Bench. Charnocke against Corey, See before.

IN Debt against Administrator: The Defendant pleades two * 1.134 Recognisances acknowledged by the Intestate, which were not satis∣fied, and that he had not any Goods or Chattells of the said In∣testate, unlesse Goods and Chattells which did amount to the Debts due by the said Recognisances: And it seemed to all the Justices, that the Plea was not good: But that the Defendant ought to plead according to the Common forme, that is, that he hath no Goods besides or beyond the Goods to satisfie the two Re∣cognisances, or that he hath no Goods to such value, which do not amount to the said Sums due by the two Recognisances: And in these cases this manner of pleading is Implied, confession that he hath Goods of such a value, and so they should be assets if the Re∣cognisances be discharged, or remaine of Covin and fraud to de∣ceive Creditor.

Pasche 1612. 10. Jacobi, in the Common Bench: Bicknell against Tucker, see before 75.

THE Case was: A Copy-hold Estate was granted to one * 1.135 for life, remainder to another for his life, the first Copy-holder for life, accepts a Bargaine and Sale of the free-hold from the Lord, and after that levies a Fine with proclamations, and five yeares passe, and then he dies,, and if this Fine shall be a Barr to him, which hath the Copy-hold Estate for life in remainder was the question: And it was argued by Harris Serjeant, that the Estate of Fines in the body of that binds all persons, but onely some which have Infirmities, and by the saving Rights, Titles, Claimes, and Inte∣rests are saved: But Title comes in the conditionall perclose of saving, that is, so that they pursue their Title, Claime, and Interest, &c. By way of Act or lawfull Entry within five yeares next after the said proclamations had and made: So that in this case the principall matter to be considered is, what thing is operated by the acceptance of the Bargaine and Sale, for if by that the remainder of the Copy-holder be turned to right, then insues that the Fine shall be a Barr: And it seemes that this determines the first Estate for life, and he agreed that it cannot be a surrender, insomuch that there is a me∣sene remainder, as it is 37. H. 6. 17. b. 4. H. 7. 10. But this Lease to commence at a day to come cannot be a surrender, but shall be de∣termined

and extinct by acceptance of a new Lease, as it is there, and in 22. H. 7. 51. a. agreed and so it was adjudged in Hillary 30. Eliz. between Wilmottand Cutlers Case, that if a Husband which was seised of a Copy-hold Estate in right of his Wife, accept an estate for life, this determines the copy-hold Estate which he hath in right of his Wife in possession: So if Lessee for yeares accept an estate of one which hath no Estate, yet this determines his Tearme, as it was adjudged Hillary 31. Eliz. Rot. 1428. b. That if Lessee for yeares of a Lease made by the Ancester accept an estate of Guardian in Soc∣cage, this determines his Lease, which he had of the Ancestor, and upon that he concluded, that in this case the acceptance of a Bargaine and Sale, turnes the Copy-holder in remainder to a Right, and then it appeares by Saffins Case 5. Coke 125. That he shall be bound though that he hath only Interest, and so of Title also, and he said that it appeares, by Kite and Quarintons case, 4. Coke 26. a. that a Right or Title may be of Copy-hold Estate, for it is there said by Wray cheife Justice, that it shall be with in the Statute of 32 H. 8. chapter 9. of buying of Titles; and so concluded.

Dodridge the Kings Serjeant agreed, that the sole question is if any thing be here done to turn the Copy-hold-Estate in remainder into a right, for then he agreed that this shall be barred, otherwise not, and to that hee intended, that the first Estate for life shall be sayd to be in Esse, notwithstanding the acceptance of the Bargaine and Sale, as to all estrangers, and especially when it is to their pre∣judice, as if Tenant grant Rent, and after surrenders his estate, now between the parties, the Lease shall be extinct by the surrender, but to the Grantee of the Rent it shall be sayd to be in Esse, and if during his life, he in Remainder also grants a Rent, hee shall hold the Land subject to both the Rents, though that the grants be both to one self sameperson, so if he in Reversion grants his Reversi∣on with warranty, and after the Tenant for life surrenders, and the Grantee be impleaded, he shall never vouch during the life of the Tenant for life, 5 H. 5. Comment. 24 Ed. 3. And here also is a custome which preserves the Copy-hold Estate in Remainder, and their particular Tenant cannot that prejudice, and for that also it shall not be turned into a right, as if a Copy-hold Estate be granted to one for life by one Copy, and after the Lord grants another E∣state for life by another Copy to another, and then the first Copy-holder commits forfeiture, he which hath the second estate cannot take advantage of that, but the Lord shall hold it during the life of the first Tenant, for no act made by the particular Tenant shall pre∣judice him in Remainder, for otherwise many Inconveniencies would insue upon that, as by secret conveyances, or as if a gran∣tee of a Rent charge, grant that to the Tenant of the Land for his

life, the Remainder over, the Remainder shall be good, notwith∣standing that the particular Estate bee extinct and drowned, also he intended that the Copy-hold Estate is another thing, then the land it self, and for that the Fine shall not be a Barr, no more then in Smith and Stapletons Case, Com. Where a Fine levied of Land shal not be a Barr of Rent, insomuch that it is another thing, so in this case he intended that the fine shall not be a Barr of the Copy-hold Estate, and concluded, &c. Wynch Justice was of opinion that the Fine shall not be a Barr to the Copy-hold Estate in Remainder, for the acceptance of the Bargaine and Sale doth not determine the first Copy-hold Estate for life, as to him in Remainder but only to the first Tenant and the Lord, and betweene those he agreed that the Copy-hold Estate is determined, as in Heydens Case, by accep∣tance of a Lease for years, and for that the Remainder shall not be turned to a Right, and by consequence shall not be barred, and for that he supposed that the reason that the Fine was a Bar in Saffins Case 5 Coke 123. b. was insomuch that the Lessor entered, made a Feoffment and after levied a Fine, and it is there agreed that the Fe∣offment turnes the Estate of the Lessee to a Right, and for that the Fine shall be a barr, and also there the Lease was by limitation of time to have a beginning, but if a man makes a Lease for years to begin at a day to come, and before the beginning of that makes a Feoffment or is disseised, and Fine with proclamation is levyed, yet he which hath future Interest shall not be barred, for this is not turned to a Right, and it was not the intent of the Statute of Fines to make a Barr of right, where there was no discontinuance or Estate at least turned to right, and this was the cause that at the Common Law, Fine with Non-claime was no Barr, but where they make alteration of possession, and he cited Palmers case to be adjudged, that a Fine of Land shall not be a barr for Rent, where the case was, Lessee for life, Remainder for life of Rent: The first Lessee for life of the Rent, purchaseth Land and levies Fine of that, and adjudged that this shall not binde them in Remainder of the Rent, no more, if he in remainder levy a fine that shall not prejudice the particular Tenant, and so he concluded in this case, that the Ramainder shall not be barred and that the Plaintiff shall have Judgment. Warburton Ju∣stice accordingly, and he argued that the Statute of Fines con∣taines two parts.

The first, to barr those which have present right, and they ought to make their claim within five yeares after the Fine levied, or other∣wise they shall be barred.

And the second those which have Right, title, or interest accru∣ed, after the Fine levied, by reason of any matter which preceded the Fine, and in both cases the Estate which is barred ought to be

turned into a right, or otherwise it shall not be barred, the which cannot be here, for the estate is given by the Custome, and it is to have his beginning after the Death of the first Tenant, and though that the first Tenant commit Forfeiture, yet he in remainder cannot enter, for his time is not yet come, as in 45 Ed. 3. is a collaterall Lease with warranty to the Tenant for life in possession, this shall not be a barr, insomuch that it is made to him which hath possession, so if a man make a Feoffment upon condition, and the Feoffee levy a Fine with proclamations and five yeares passe, and the condition is broken, the Feoffee may enter at any time, otherwise if the Fine had been levied after the condition broken, and so if the Lord be inti∣tu••ed to have Cessavit, and Fine is levied by the Tenant and five yeares passe, he shall be barred, and this was the cause of the Judgment in Saffins case, insomuch as the Lessee had present inte∣rest to enter, and this was altered into a Right by the Feoffment, and then the Fine was a Barr, but here he in Remainder hath no right till after the Death of him which was the first Tenant, and then his right to the possession begins, and then if a Fine had been levied with proclamation this shall be a Barr, and so he concluded, that Judgment should be entered for the Plaintiffe.

Coke cheife Justice accordingly, and he agreed also that the sole * 1.136 question is, if by acceptance of a Bargaine and sale by the first Te∣nant for life, the Remainder be turned into a right, and he sayd, that right sometimes sleepeth, but it never dyes, but this shall be intended (the right of the Law) and not right of Land, for that may be barred by Writ of Right at the Common Law, and he intended that Copy-holdes are within the Statutes of Fines, be they Copy-hold for life, yeares, in tayl, or in fee, for the third part of the Realme is in Copy-holdes, and two parts in Lease for yeares, and if these shall not be within the Statute, then this doth not extend to three parts of the Realme, and it is agreed in Heydons case 3 Coke 8. a. That when an act of Parliament doth not alter the Tenure, Service, Interest of Land, or other thing in prejudice of the Lord or of the custome of the Mannor, or in prejudice of the Tenant, there the generall words of such act of Parliament shall extend to Copy-holds, and also it is resolved to be within the Statute of 32 H. 8. Of Maintenance, and also it is within the expresse Letter of this, which containes the word Interest, and Copy-holder hath interest and so also of Tenant by Statute Merchant, then the question will be, if the acceptance of a Bargaine and sale turnes that to a right, and he intended that his Estate for life remaines, though that it is only passive in acceptance of Bargain and sale, and for that it shall not be prejudice more then if Tenant at will accepts a Bargaine and Sale, for his Estate at will, this notwithstanding remaines, but if Lessee

for years or life, accepts a Fine upon conusance of right, this is a forfeiture, insomuch that it is a matter of record, and it shall be an e∣stoppel to say that he did not take Fee by that, & doth not admit the Reversion to be in another, also insomuch that the Bargain and sale was executed by the Statute for this cause it shall not be prejudice, as it was adjudged in the Lady Greshams case in the Exchequer, 28 Eliz. Where two severall conveyances were made with power of Re∣vocation upon tender of ten pound, and adjudged by act of Parlia∣ment that a revocation was good, and also that no license of aliena∣tion shall be made, insomuch that it was by act of Parliament, which doth no wrong, and it is for the Trespasse, for which the * 1.137 party ought to have license, and if it be not Trespasse there need no license before hand nor pardon afterwards: So if a man makes a Lease for yeares, remainder for yeares, the first Lessee accepts Bargaine and Sale, this shall not turn these in remainder to preju∣dice.

Thirdly it seemes to him also, that notwithstanding the accep∣tance of the Bargain and Sale, the first Copy-hold Estate for life re∣mains in Esse, and is not determined. For this differs from an Estate of Land, for it shall not be subject to a Rent granted by the Lord: the first Estate remaines, till all the remainders are determined, for the first tenant for life cannot surrender to the Lord, also it is customa∣ry estate, for by the Common Law this being granted to three succes∣sively, this shall be determined and extinct for the third part, for they three take into possession, and the word successively, shal be taken as void, but here the Custome appoints, that the remainder shall not have his beginning, till the death of the first-Tenant, and that they should take by succession, and for that there is a difference between this customary Estate, and other Estates at the Common Law, and other surrenders, for if a Copy-holder surrender to the use of ano∣ther for life, nothing passeth but for life only, the Lord hath not any remainder by this Surrender, and if this Tenant for life commits forfeiture, he in reversion shall not take advantage of that, and if at the Common Law Tenant for life, remainder for life or in fee be, and the first Tenant for life makes a Feoffment, and after levies a Fine, and resolved that he in reversion should not be bound till 5 years are incurred after the death of the 1. Tenant for life, for then his title of Entry first accrues in apparancy, and before that is in se∣crecy, of which he in remainder is not held to take notice, and so in this case he in remainder shall not be bound till five yeares are in∣curred after the death of the first Tenant, and the rather insomuch as the first Estate remaines, for that that the first Tenant was only passive and not active, and so he concluded that Judgement shall be given for the Plaintiff, insomuch that the Fine was no Bar, and

upon this concordance of all the three Justices in opinion, no other Justices being present this Tearm Judgment was entered accordingly.

Pasche 1612. 10. Jacobi, in the Common Bench. Danyell Waters against the Deane and chapter of Norwich.

IN covenant, The case was this in 37 H. 8. the then Deane and Chapter of Norwich made a Lease to one Twaits for fifty yeares, which ended 35 Eliz. in time of Ed. 6. The then Dean and Chap∣ter surrendred all their possessions to the King, which those newly endowed, and incorporated by the name of Deane and Chapter of the foundation of Ed. 6. and in the 8. Eliz. Salisbury then Deane and the then Chapter made a Lease to Thimblethorpe for 99. yeares to begin after the said Lease for fifty yeares made to Twaits: And it doth not appeare by the pleading; that Thimblethorpe entred: But the succeeding Deane and Chapter in the 42. Eliz. made ano∣ther Lease to Waters the Plaintiff for three lives, rendring the an∣cient Rent quarterly, with warrant of Attorney to make livery, and it was not executed till after the end of three quarters of a yeare after the Sealing of it, and when the time of three rent daies were Incurred: And in this Lease the Deane and Chapter covenanted with Waters to acquit and save harmelesse the Lessee and the premi∣ses during the Tearme, &c. By reason of any Lease made by them, or any of their Predecessors or by the Bishop: And then the Plain∣tiff in his Court, conveys the Lease made by Thimblethorpe to Doy∣lye, and that he intered and disturbed the Plaintiff, and so assigned breach of covenant, upon which this Action was founded, upon which the Defendants demurr in Law: And this was agreed by * 1.138 Dodridge the Kings Serjeant for the Defendants.

First that the Lease made to Waters was void, and then the Co∣venants do not extend to charge the Defendants: And he supposed the Lease to be void, insomuch that the Attorney did not make Livery; untill three Rent daies were incurred, and the Lease was made as well for the benefit of the Lessor, as for the Lessee, for if the Lessee is to have the profits and the Lessor is to have the Rent: And insomuch that the Livery was not made before a Rent incurred, this tends to the prejudice of the Lessor, and for that the Autho∣rity is countermanded, and the Livery made after void, for when a man hath a Letter of Attorney to make Livery, he ought to make that in such manner, as the Feoffer himselfe would make it, and the Lessor cannot make that after a rent incurred, for then he should loose that Rent: Also Authority ought to be strictly pursued, as in 36. H. 8. Dyer 62. 24. Letter of Attorney was made to three

joyntly and severally to make Livery, and re•…•…ved that two cannot do it, see 11. H. 4. For it ought to be made joyntly or severally, so here the Attorney ought to make the Livery as his Master will, and that ought to be made before any Rent incurred: And for this cause he intended the Lease to be void: And then as to a Colla∣terall Covenant, which is in effect no other, but that the Plain∣tiff shall injoy the Land during the Tearme, which is of an Estate which is nothing, for if the Lease be void, the Estate is nothing, and the Lessee hath not any Tearme or Estate in the Land: And he agreed that in the Record of Chedingtons Case, 1 Coke 153. b. And in the Commentaries, Wrotsleys Case 198. And 2. Eliz. Dyer 178. There is a difference betweene Tirminum Annorum, and the time or space of yeares, or the life of such a man, but there is not any difference between a Tearme and an Estate: Also he supposed that the words of the Covenant extend only to save the Plaintiff harmelesse of Leases made by these Defendants or any of their prede∣cessors, and this Lease was made to Twaits in time of H 8. Which was before their Corporation, for they have been but named a Corporation in the time of Edward 6. and not before: And then a Lease made in the time of H. 8. is not made by them nor by their Predecessors, and so the Covenant doth not extend to that, as it appeares by 8. Ed. 4. in case of prescription, if Corporation be changed in manner and forme, and the substance of their name re∣maine, yet they ought to make speciall prescription, then a for∣tiori in this case, where the substance is changed; and so he con∣cluded, * 1.139 and praied Judgement for the Defendants.

Nichols Serjeant for the first argued, that the Livrey was well made, for these Defendants shall be intended Occupiers, and to have the profits of the Land till the Lessee entred or they waved the possessi∣on, and so no prejudice, and the Lessee shall not be charged with Rent till he enters, or the Lessor wave the posaession, as it was resolved in Bracebridges Case Com. 423. b. and in the Deane and Chapter of Canterburies Case there cited: And for that the Livery shall be good, and the Lessor not prejudiced by the deferring of it, and then to the second, that is the Covenant, he agreed that if the Estate be created, and Covenant in Law annexed to it, if the Estate cease, the Covenant also shall cease: But if expresse Covenant be annexed, then the Covenantor ought to have regard to performe it, or otherwise an Action of Covenant lies against him, notwithstan∣ding that the Estate be avoided: But here he intends it against him notwithstanding that the Estate be void: But here he intends the Estate continues till Thimblethorp entred: But admitting that he had entred, yet the covenant shall bind the Covenantor, as in 12. H. 4. 5. a. Parson makes a Lease for yeares, and after is removed;

an Action of covenant lies against him, and 47. Ed. 3. and 3. Ed. 3. If Tenant in 〈…〉〈…〉 makes a Lease with expresse covenant and dies, and the Issue outs the Lessee, the Lessee shall have an Action of Covenant against the Executors of the Tenant in tayl, and 9. Eliz. Dyer 257. 13. Tenant for life, the Remainder over in Fee, by Indenture makes a Lease, without any expresse covenant and dies, Lessee cannot have an Action of covenant against his Execu∣tors, otherwise if there had been an expresse covenant: See the booke and many Authorities there cited to this purpose, and also he cited one Rawlinsons Case to be here adjudged, that if a man which hath nothing in land makes a Lease, and an expresse cove∣nant for the injoying of that, if he which hath right enters, by which the covenant is broken, Action of covenant lies upon the expresse covenant: So that admitting that the Lease is void, yet the covenant is good and shall bind the successors; and so he con∣cluded, and praied Judgement for the Plaintiff, and this case was argued at another day by Dodridge the Kings Serjeant, by spe∣ciall * 1.140 appointment of the Judges, and now he supposed, that the Count containes that the same Dean & Chapter which made the lease to Twaits in 37 H. 8. also made the Lease to Thimblethorp in the 18 El. w^ch cannot be, insomuch that the corporation was changed in the time of E. 6. & for that cannot be the same Deane and Chapter, for if a Prior Covent be translated into a Dean and Chapter, and the Dean and Chapter will make prescription, they ought to make that in speciall manner, and not generally as Deane and Chapter, as it is resolved 39. H. 6. 14. 15. and in 7. Ed. 4. 32. In Trespasse against the Abbot of Bermondsey, it is agreed that the Prior was not Predeces∣sor to the Abbot, as it appeares by 10. and 11. Eliz. Dyer 280. 11, 12, 13. That the Deane and Chapter of Norwich made a surrender in the time of Ed. 6. and then newly incorporate▪ So that he which made to Twaits in the 37. H. 8. could not be Predecessor to the Deane and Chapter which made to Thimblethorp in 18. of Eliz. for he could not then be any Predecessor, and for that the Lease to Thimblethorp void, and then there is no Eviction, but wrong to the Plaintiff, for which he may have an Action of Trespasse, and then he cannot have an Action of covenant, as it appeares by 22. H. 6. against the Lessor: But admitting that the Lease to Thimblethorp were good, then this hath his beginning in the 38. of Eliz. and makes the Lease for three lives to the Plaintiff void by the Statute of 13. Eliz. insomuch that the aforesaid Lease for yeares was then in beginning, and the Statute is expresly that it shall be void, as the grant of next avoidance of a Church in the case of the Bishop of Lichfeild and Coventry against Sale cited in Lincolne Colledge Case 3. Coke, as if a Parson makes a Lease for yeares, and

is Non-resident, the Lease is void by the Statute against the Par∣son himselfe, and then if the Estate be void, all covenants which depend upon that are also void: Also he supposed that there is not any good conveyance of the estate of Thimblethorp to Doyley, which is intended to be the disturber to make the Covenant to be broken; and then when Doyley entered without title, the Covenant cannot be broken, and so he concluded, and prayed Judgement for the De∣fendants.

Nichols Serjeant for the Plaintiff agreed, that if there be an alte∣ration * 1.141 of Corporation, and title is to be made by prescription, it ought to be so specially shewed as it hath been said of the other part by Dodridg. But here it is not so, for the same Dean and Chapter which made the Lease to the Plaintiff, made the Lease to Thimblethorp, and this appears by the pleading; and the Lease made to Twaits is not mentioned, but only to shew the beginning of the Lease to Thim∣blethorp: And then the Deane and Chapter which made the Lease in 18 of Eliz. to Thimblethorp; were the same Deane and Chapter which made the Lease in 42. Eliz. to VValters. And hee supposed the Covenant being expressed, this remains; otherwise if it had been a Covenant created only by the Law, as it appears by the Books of 9. Eliz. Dyer, 257. 13. and 32 H. 6. 32. And also when a Covenant is created by Law, the Covenantee cannot have Covenant, if he be not outed by one which hath title, 26 H. 8. 36. otherwise of expresse Covenant, as it is agreed in the 12 H. 4. 5. So in 47. Edw. 3. Cove∣nant lies against Executors: and 38 Edw. 3. Covenant lyes against Heir being made by Tenant in tayl, if the Lessee be outed after his death; and so hee concluded, and prayed Judgement for the Plain∣tiffe.

Wynch Justice supposed that Judgement should be given for the Plaintiff, and that he had good cause of action; and he intended that * 1.142 the Livery and Seisin by the Attorney, after Rent incurred, was good. Secondly, That the Covenant shall extend to the Lease made to Thim∣blethorp; for it doth not appeare, but that it is the same Deane and Chapter, which was in time of H. 8. For it is not pleaded that it was founded by Ed. 6. but had his name by him. And also it is confessed by the Demurrer, that it is the same Deane and Chapter, but admit∣ting that it is not, yet it may be answered, as it hath been by Nichols before, that is, that the Deane and Chapter which made the Lease in 8 of Eliz. to Thimblethorp, is the Deane and Chapter which made the Lease to the Plaintiff in the 42 of Eliz. are all one: and the Lease to Twaits is shewed only, to shew the beginning of the Lease made to Thimblethorp. Also he supposed the conveyance of Thimblethorps E∣state to Doyley to be good; and it doth not appear but that the Deane and Chapter were in possession at the time of the making of the Lease

for 3 lives: So that this hath a good beginning, and continued till it was avoyded by the Entry of the succeeding Dean, for this remains good against the Deane that made it: But Thimblethorp also may a∣void it during his Tearm, and now here is eviction by the Assignee of Thimblethorpe, before that the L••ase be avoyded by the succeeding Deane and Chapter, where the Deane himselfe could not avoid it, for he is the party which made it: Also here is expresse warranty against the Lease made to Thimblethorp, and for that also action of Cove∣nant lyes, otherwise if it had been only warranty in Law, as if Lessee for life had made a lease for years, and dyed: Upon the covenant in Law action doth not lye, for the Law doth not constrain to Impossi∣bilities, as in the 40. Ed. 3. Covenant that the wind shall not peirce nor break the Trees: and 2 Ed. 4. 12 Ed. 4. Action of Covenant lies upon express Covenant, though that a stranger enters without ti∣tle, and he cyted one Dormans case to be adjudged, that where a man borrows money upon a usurious contract, and the principall gives se∣curity to the Surety that was bound with him by collaterall Obligati∣on: and the Surety being arrested, takes advantage of the Counter∣bond, notwithstanding that the principall Obligation was void by the Statute of Usury. So here, notwithstanding that the estate was void, and that is the principall: Yet the Covenant being expressed, and collaterall, shall bind the Lessor, and so he concluded that Judge∣ment shall be given for the Plaintiff.

Warburton Justice to the contrary, and yet he agreed that the live∣ry * 1.143 was good, notwithstanding that it was made by the Attorney, af∣ter three Rent dayes incurred, and he seemed that it might be made at any time during the tearm and the lives of the parties. And also he agreed that the Corporation shall be intended the same Corpora∣tion, and yet Corporation had no Predecessor nor Successor: but the Statutes say, Predecessors, Antecessors, and Progenitors of the King, as 39 H. 6. 7 Ed. 4. 2 H. 6. But he did not insist upon that, but agreed that: But the matter upon which he insisted, was, that the Lease to the Plaintiff was void against the succeeding Deane and Chapter, in∣somuch that the lease to Thimblethorp was in Esse at the time of the making of that, and this by the Statute of 13 Eliz. And it appears that the Deane which made the Lease to the Plaintiff is dead, for he is named in the Count, the late Deane; and then when the Covenants depend upon the estate, be they expressed, or in Law, these determin and end with the estate, as in Lemons case, 28 H. 8. Dyer 28. 189. re∣solved, that where the statute of 21 H. 8. makes Leases being in the hands of Spirituall persons void, this avoids these Covenants also which depend upon the Lease. So if a Parson make a Lease and Cove∣nant that he will not be non-resident, and binds himselfe for the per∣formance of that, if the Covenants be released, the Obligation also is

released. So if the Lease be avoyded, the Covenants also are avoyded: And as an action of Covenant doth not lye for the not injoying of Land after a surrender, so Covenant doth not lye after the estate is avoyded, see 4 H. 7. And to the case put by Wynch of counter∣bond, where the Principall was void by the staiute of Usury: he said that there the Obligation was not void, but voidable by plea. But here it is, the estate is made void by the express words of the statute: and he intended that this difference between expresse Covenant, and Covenant in Law, but that the one determines with the estate as well as the other, and yet he agreed that express Covenant shall extend to charge the Covenanter upon Entry by a stranger, which hath no title; but yet this doth not charge the Lessor after the estate deter∣mined, and so he concluded that Judgment ought to be given for the Plaintiff.

Coke cheif Justice accorded with Wynch that Judgment shall be gi∣ven * 1.144 for the Plaintiff: And he supposed that the livery was well exe∣cuted by the Attorney after the 3 Rent dayes incurred: and yet he a∣greed that it had been a probable objection made against that: But he supposed that the Lessor was not prejudiced, insomuch that the Law intends that they had the possession and the profits of the Land till livery made, and the Attorney is only as a servant to the Lessor: And he said, that this is not like to Cromwels and Andrews Case, of grant of a Mannor upon Condition to re-grant Advowson or Rent, in which cases the Advowson or Rent ought to be re-granted, before that the Church becommeth void, or the Rent day be incurred, in∣somuch that they are followers of the thing granted, notwithstand∣ing that the Feoffee hath time during his life to make the re-grant, if it be not hastned upon Request. 2. He supposed that the express Covenant shall bind the Lessor, though it be referred to the tearm; for tearm includes Estate and Interest, but this is when it is Tearm; but when it is no Estate, then it shall be intended during the continuance of the years, as it appears by the Rector of Chedingtons Case: and this he held clear, and so of promise also, as if a man makes a Lease for years, and before that the Lessee enters, makes a lease to another, and promises that the second Lessee shall enjoy during the tearm, if the first Lessee enter, the second Lessee may have an action upon the promise, and he said that it was adjudged in the Kings Bench, Hill. 35 Eliz. between Foster and Wilson, Plaintiffs, and Mayes, Defen∣dant; where the case was, A man made a Lease of a Rectory for years, and covenanted with the Lessee to save him harmlesse against one Blunt Parson of Dole, which entered and outed the Lessee, which brought Covenant against the Lessor, and resolved that it lyes not∣withstanding that it doth not appear whether he had Interest or no: So that be the Lease good or void: yet when there is an Eviction, Co∣venant

lyes, though the Lease be originally void, yet till it be avoid∣ed, it shall be intended a good Lease: And if a Covenant of Dean and Chapter doe not bind them, none will take Lease of them, so they shall be compellable to plow the Land themselves, and also he sup∣posed that the Lease was good against the succeeding Dean and Chap∣ter, till it be avoyded by Entry, as it was adjudged, Trin. 30 Eliz. between Elmer and Page, where a Bishop made a Lease for years, and dyes, the Successor makes a Lease for 3 lives, the Lease for years not determined: And it was resolved that the Lease for 3 lives was void, notwithstanding that the Bishop might make a concurrant Lease for years, which is not made void by the Statute of 1 Eliz. inso∣much that the Statute is in the definitive, that is, Leases for 3 lives, or 21 years, and so they cannot make both, for then the Lessee for life should have the Rent reserved upon the Lease for years, which is setled in the Lessee for 3 lives, by the regress of the Lessee for years: and so he said also, notwithstanding that the statute of 18 Eliz. made void all Leases made by Deane and Chapters, where there are more then 3 years in being; he agreed that a Lease for years, where there are so many years in being is good: but if there be but two years in being, that makes the Lease for life void. And he agreed that not∣withstanding the statute, yet any Lease shall be good against the Deane himselfe, insomuch that he is party to that, and hath a nega∣tive voyce in the making of that: And he seemed that the Proviso in the statute of 18 Eliz, did not extend to Leases in possession, but to Leases in reversion, which are dormant, of which a stranger cannot take notice, insomuch that they are invisible; and for that, if a Dean and Chapter procure surrenders of them, and within 3 years, that shall make another Lease good, and so they shall save their Covenant; and for that the Lease here made to the Plaintiff had been good, if the Defendants had procured the Lease made to Thimblethorp to be surrendred within 3 years after the taking of that. Also he cyted the Case betwixt the Bishop of Lychfield and Coventry, and Sale to be ad∣judged, Michaelmass 32. and 33. Eliz. That a grant of the next a∣voydance is good against a Bishop himself that granted it, and not made void by the Statute of 1 Eliz. as to him, but to all Successors only. And so in this case he said, they all agreed that the Lease was not void which is made to Waters against the Deane himself which made it, but only against the Successor. And he said also, Covenant in Law extends to lawfull Evictions, and to estates in being, and not where an estate is determined, as if Lessee for life makes a Lease for years, and dyes, the Lessee shall not have an action of Covenant up∣on Covenant in Law, as it is agreed in 9 Eliz. Dyer, and 38 H. 6. be∣fore cyted. So also he supposed to express reall Covenants which ex∣tends to Free-hold, or Inheritance, as Warrant and Defend, upon

which a man cannot have an action, if he be not outed by one which hath title; and as in 3 Edw. 3. 7. and 21. A man makes a Feoffment with warranty, nonfeoffavit, is a good Plea; for if the Feoffment be a∣voided, the Warranty also is avoided, for that depends upon the Fe∣offment. But if a man makes a Lease for years, and covenants that he will warrant and defend the Land to the Lessee, if the Lessee be outed by one which hath title, or without title, he may have an action of Covenant, for the Lessor hath the Evidences, and ought to defend the possession of his Lessee, and the right also, and damages are only to be recovered; and so is the difference between a Lease and Inhe∣ritance, though that the words of the Covenant are all one. And al∣so he said that it may be objected, that the Incorporation (was not well pleaded) by Edw. 6. Insomuch that he doth not say after the Conquest, for Ed. 3. was Ed. 6. in truth, sor there were 3 Edwards before the Conquest, and he was the third after: And he saith that he hath known many exceptions to be taken to that, but hath not known any of them to be allowed, and for that he will not insist upon it. But the principal matter upon which he insists, was, that it doth not appear by the pleading, that the Deane which made the Lease was dead: and it appears by the pleading, that he entered in 4 Jacobi and was seised, and then of necessity ought to be living; and such aver∣ment of his life is sufficient, as it is agreed in the 13 Eliz. Dyer, where a Parson made a Lease for years, and the Lessee brought an Ejectione firme, and in pleading it was said; that the Parson is seised of the re∣version, and this was allowed to be good without other averment of his life, for he cannot be seised if he be not living: and then if the Deane shall be intended to be living, then they all agreed that the Lease shall be good against him; for it was adjudged in this Court between Blackeleech and Smal, that if a Bishop makes a Lease for years, and after makes a Lease for life, the Lease for years being in Esse, and dyes, and the Successor accepts Rent, this shall bind him: and by this it appears that the Lease was good against the Dean him∣self which made it, and also against the Successor, till he enter and avoid it, and then by consequence the action of Covenant shall be very well maintainable, and so he concluded also that Judge∣ment should be given for the Plaintiff, which was done accor∣dingly.

Pasche, 1612. 10. Jacobi, in the Common Bench. Browning against Strelley.

MIchael. 2 Jac. Rot. 531. In debt, the Margent of the Count con∣tains Nottingham, and the Count it self contains that the Obli∣gation

was made at the Town of Nottingham, which is a County of it self, and the Defendant pleads non est factum, and the view was of the Town of Nottingham, and it was tryed by the Jury of the County of Nottingham, and this was moved in arrest of Judgment after verdict for the Plaintif, by Nichols Serjeant. And it was agreed by all the Ju∣stices, that Judgment shall be given accordingly to the verdict, inso∣much that notwithstanding that the Town of Nottingham is a County of it self, yet it may be that some part of the Town may be within the County, and for that possibility they would not arrest the Judgment.

Ireland against Smith.

IN action upon the Case for these words, the Plaintiff counts that he was, and is Proctor in the Arches: and in communication be∣tween one Morgat and the Defendant of him, the Defendant said to the said Morgat, You take part with Ireland against me, who is an arrant Papist, and hath a Pardon from the Pope, and can help you to such an one if you will: And after verdict it was moved by Hutton Serjeant in arrest of Judgment, that the action doth not lye; and he saith, that it hath been adjudged in this Court, 3 Jacobi, Rot. 7031. between Kingstone and Hall, that an action doth not lye for like words, he is an arrant Papist: And it were good that he and all such as he is were hanged, for he and all such as he is would have the Crowne from the Kings head if they durst: And it was adjudged that an action doth not lye for these words, which are more strong then the words in this action: but of the other part it was said by Haughton Serjeant that he did not insist upon these words, that he is a Papist, but that he had obtained a Pardon from the Pope, the which by the Statute of 13 Eliz. is made High Treason, and then notwithstanding that no time was limited when the Pardon should be procured, that is before the Statute or after, yet it shall be intended such a Pardon which is a∣gainst the Statute; for the presumption of the Law shall be taken in the worst sense, and not like to the Case, where a man saith to ano∣ther, that he hath the Pox: And also it is alledged by the Count, that the Plaintiffe is not above the age of 40. years, so that he cannot ob∣tain a Pardon before the Statute of 13 Eliz. And for that he suppo∣sed that the action is very well maintainable. Coke cheif Justice said, that it was adjudged in the Kings Bench in the time of Catlyn cheife Justice there; that an action upon the Case doth not lye for calling a man Papist. And Winch Justice said, that if a man call a Bishop or ano∣ther man which is trusted with government of the Church, and Ec∣clesiastical causes, that he thought the action lyes, otherwise not. Al∣so he supposed that the Pardon might be for Purgatory, or other matters which are not within the Statute of 13 Eliz. And also the

Pardon may be procured by another, and come to his hands by delivery over afterwards that it had passed two or three, and the aver∣ment is not sufficient, for it is onely Implication and Inference, Coke and Warberton Justices sayd, that a Papist is one that errs in his o∣pinion, and though that the Papists are Authors of many Treasons, yet the Law doth not intend so, and so of Heretick, which is alwaies in a fundamentall point of Religion, and yet an action doth not ly for calling a man Heretick, also the Pope is a temporall Prince in I∣taly, and for this cause also may pardon, and this is out of the statute of 13 Eliz. and so they all agreed that the Action doth not ly for these words.

Pasche 1612. 10 Jacobi, In the Common Bench. Marstones Case.

IN a common Recovery the Tenant appears by Attorney, and * 1.145 vouches one which is present in Court, which appears, and vou∣ches the common Vouchee, and the Attorney hath a Warrant of the party acknowledged before a Judge, but this was not entred of record, and this was in Hillary tearme 16 Eliz. And it was moved by Dodridge the Kings Serjeant, that the Warrant of Attorney might be now amended and entred upon the record, and Coke supposed cleerly that it shall not be entred, insomuch that it is a want of a Warrant of Attorney, but if there had been a mis-construing of the Warrant of Attorney, otherwise it is, for this seems to be within the Statute of 27 Eliz. Chapter 5. Concerning amend∣ments.

In Debt upon an obligation with condition to perform Covenants * 1.146 in an Indenture of Lease the Defendant pleads, that after and before the originall purchased, the Indentnre was by the assent of the Plaintiff, and the Defendant cancelled and avoyded, and so demands Judgment if action, and it seemes by Coke cleerly, that the Plea is not good without averment that no Covenant was broken before the cancelling of the Indenture.

Pasch. 12. Jacobi, 1612. In the Common Bench. Barde against Stubbing.

IT was moved in arrest of Judgment, that the Venire facias * 1.147 wants these words, Et habeas ibidim nemina Juratorum, but the words, Venire facias duodecim, &c. were incerted, and it seems by all the Justices that it was good, and that the first

words, are supplyed in the last, and they are aided by the statutes of Jeofai es, after verdict, and so it was adjourned.

In Audita querela sued by the sureties upon an escape made by the principall, they being in execution offered to bring the Money into * 1.148 the Court, or to put in sufficient Sureties to the Court, and so prayed that they might be bayled, and it was agreed, that if Audita querela be grounded by specialty or other matter in writing, or up∣on matter of Record, Supersedeas shall be granted before that the party be in Execution, and if he be in execution he shall be bayled, but if it be founded upon a matter in Deed, which is only surmise, he shall not have Supersedeas in one case, nor shall be bayled in the other case, and so was the Opinion of all the Justices.

In an Action of Waste for digging of earth to make Brick, Estrepe∣ment * 1.149 was awarded, and upon Affidavit; that the Writ of Estre∣ment was delivered to the Sheriff, and that he gave notice of that * 1.150 to the party, and he notwithstanding that continues to make waste, attachment was awarded.

Pasch. 12 Iacobi, 1612. In the Common Bench. Fetherstones Case, Trinity 1612.

IN Ejectione firme, The Plaintiff had Judgment, and an Habere * 1.151 facias possessionem to the Sheriff of Coventry, which returnes that he had offered possession to the Plaintiff, and he refused to accept it, and it seems that the Plaintiff cannot have Habere facias possessionem, insomuch that it appeares by the Record, that he hath refused to have the possession.

The case was, A Dean and Chapter being Lord of a Maunor, par∣cell * 1.152 of the Demesnes of the Mannor being severall, adjoyned to the Common, which was parcell of the wast of the Mannor, and one Copy-holder which had Common in the sayd Wast, puts his Beasts into the sayd waste to take his Common, and they for default of inclosure escape into the sayd Demesnes, by which the Lord brings his action of Trespass, and upon this the Defendant pleads the speciall matter, and that the Lord, and all those whose Estate he had, in the said place where the trespass is supposed to be made, have used to fence the said place which is parcell of the Demesnes of the sayd Mannor, against the Commoners which have Common in the sayd Common, being parcell of the waste, and also of the demes∣nes of the sayd Mannor, and that the Beasts of the sayd Defendant, escaped into the sayd place in which, &c for default of inclosure, and so demands Judgment, upon which the Plaintiff demurrs in Law: In the agreement of which, it was agreed by Hutton and

Haughton the Serjeants which argued it, whether a man by pre∣scription, is bound to make fence against Commoners, as it is agreed in the 22 H. 6. 7. 8. 21 H. 6. 33. But the doubt which was made in this case by Haughton which demurred was, for that that the Lord which by the prescription ought to inclose is owner of the soyle also, against which he ought to inclose, and so he ought to inclose against himself, and for that he supposed that the pleading should have been, that there is such a custome there, and of time out of minde that the Lord shall inclose against the Common, insomuch that by that the Copy-holder would bind the Lord, and upon that it was adjourned, &c.

Pasch 12 Jacobi, 1612. In the Common Bench. Sir Henry Rowles against Sir Robert Osborne and Margeret his Wife.

IN Warrantia Charte, the case was, Sir Robert Osborne and his * 1.153 Wife levyed a Fine of the Mannor of Kelmersh, with other Lands in Kelmersh, to Sir Henry Rowles, against all persons, and this is declared for the Lands in Relmersh to be to the use of Sir Henry Rowles for life, with diverse Remainders over, and for the Mannor no use was pleaded to be declared at all, and then a Writ of Entry in the Post was sued against the sayd Sir Henry Rowles which vou∣ched Sir Robert Osborne, and his sayd wife••; and this was declared for the sayd Lands to be to the use of the sayd Sir Henry Rowles for his life with other Remainders over, which were declared upon the Fine of the Lands in Kelmersh only, and of the Mannor of Kelmersh no uses were declared, upon the Recovery also, and upon this Re∣covery pleaded in barr the Plaintiffe demurred, and it was argued by Dodridge Serjeant of the King for the Plaintiffe, that the Plea in * 1.154 Barr was not good, insomuch that it doth not appeare that the warranty which was executed by the Recovery was the same war∣ranty which was created by the Fine, and also the Fine was taken for assurance against the Issue in tayle, and the Recovery to Barr the remainders, and so one shall not destroy the other, and for the first he sayd, that a man may have of another severall warranties, and severall causes of Voucher and all shall be together, for warranty is but Covenant reall, and as well as a man may have severall Cove∣nants for personall things, as well he may have severall reall Cove∣nants for one self same Land, as if the Father infeoff one with warran∣ty, and the Sonn also releases to the same Feoffee with warranty, or if the Father infeoff one with warranty against him and his Heires and the Sonn release with warranty against all men, the Feoffee may

vouch one, and Rebut against the other, so of Warranty of Te∣nant in tayle and release of an Ancestor collaterall with warranty in Law, and expresse warranty, as it is agreed in 31 Ed. 1. Fitzh. Voucher 289. And upon that he concluded that a man may have se∣verall warranties of one selfe same man, and the one may be execu∣ted and the other remaine, notwithstanding that it be for one selfe same Land, and he supposed the effect of these warranties are as they are used, for if that may vouch generally, and bind himselfe upon the Fine or upon his owne warranty, or upon the warranty of his Ancestor, notwithstanding that the voucher be generally, as it is 31. Ed. 3. Warranty of Charters 22. So if he be vouched as Heire, though that it were speciall, but if he be Heire within age otherwise it is, for that is a good Counter Plea that he was within age, and so praied (that the word might demur) during his no∣nage, 17. Ed. 2. Counter Plea of voucher 111. 21. Ed. 4. 71. Then he supposed here was generall warranty which is executed, and also another warranty which remaines, notwithstanding any thing which appears to the Court, for he hath not demanded any binding, 10. Ed. 3. 15. a. b. Also the warranty in the Fine is the warranty of all the Conusees, and the warranty upon which the voucher is, is only the warranty of Sir Robert Osborne, which cannot be intended the same warranty which is contained in the Fine which is by two, as it is resolved in 10. Ed. 3. 52. But admitting that it agrees in all, that is the voucher and the warranty in the Fine, that is, in number of persons and quantity of land and all other circumstances, yet it shall be no Barr, for the Common Recovery is only as further assurance, for it is for forfeiture if it be suffered by Tenant for life, as it is re∣solved in Pelhams Case 1. Coke: Also he supposed that notwith∣standing that the Fine was levied hanging the Writ of entry, and ••o Sir Henry Rowles made Tenant, yet this is good being by pur∣chase, but not if it be by discent or by recovery upon elder Title: And he supposed that if the recovery and the warranty might be to∣gether by any possible meanes, they shall not be distroied, inso∣much that this is the common case of assurance, and for that shall be taken, as in Pattenhams Case 4. and 5. Phil. and Mary Dyer 157. and 2. Coke. Cromwells Case 77. b. where a man makes a Feoffment upon condition rendring Rent, and after suffers common recove∣ry, and yet this notwithstanding the condition and Rent remaines: And so it seemes that in this case the warranty remaines notwithstan∣ding the Recovery; and so he concluded, and praied Judgement for the Plaintiff.

Nicholls Serjeant for the Defendant, and he seemed that the * 1.155 warranty is destroied, first insomuch that the Recovery was to other uses, and the Fine was when proved that there was no fur∣ther

assurance, also he supposed, that insomuch that it doth not appeare to what use the Recovery was for the Mannor of Kelmersh, that for that it shall be intended to the use of Sir Robert Osborne himselfe, and then for that also the warranty is distroied, inso∣much that part of the Land is re-assured to Sir Robert Osborne, as in 40. Ed. 3. 13. The Father enfeoffes the Son with warranty, which re-enfeoffes the Father, this destroies the warranty: So if they make partition by their owne Act, as it is agreed in the 34. Ed. 3. Also he supposed that the Tenancy in Sir Henry Rowles is distroied before that the Fine was Levied, insomuch that this was Executed by voucher, and so he did not purchase hanging the Writ, for this is also conveied from him by the Recovery in the value before that the Fine is levied, and it is all one with the case, where a man re∣covers upon good Title hanging a Writ, and he agreed, that the re∣covery had been for further assurance, that then it shall be as it hath been objected by the other party, and the warranty had remained, but this he supposeth, it was not, insomuch it was to other uses then the Fine was, and he intended that if the Estate to which the war∣ranty is annexed be distroied, the warranty also shall be distroied, 19. H. 6. 59. 21. H. 6. 45. 22. H. 6. 22. and 27. So if the Estate be avoided the warranty is distroied, if it be by the Act of the par∣ties named, also he supposed that the warranty is executed, and that it shall be intended the same tye upon which the warranty is created as it is 10. Ed. 3. 51. Mauxells case Com: if he demand no tye but enter generally into the warranty, there shall be execution of all warranties and shall bind all his rights, for otherwise all the Estates tayl cannot be bound by that: But where the (Lieu) is demanded as where there are three severall Estates tayl limited to one man, and upon voucher he enters generally into the warranty, all the tayles shall be bound, but if he demand the Lieu's which he hath to bind him to warranty, there shall be a Barr of that only, upon which the voucher is, and the remedy is, that if he be im∣pleaded by the party, that hath made the warranty, he shall be rebutted by his owne warranty: But if he be Impleaded by a stran∣ger he shall vouche him that warranted that, and if warranty be once executed by voucher and Recovery in value, though that the Land recoverd in value be a defeasable Title, yet the party shall not voucheat another time by the same warranty, as it is 5. Ed. 3. Fitz. voucher 249. and 4. Ed. 3. 36. And for that in this case, insomuch that the warranty was once executed, he shall not vouche againe upon the same warranty: Also it is not alledged in the Count that the Plaintiff was Impleaded by Writ of Entry in the Post, but in the Per, in which he might have vouched, and so shall not have this Action, where he might have vouched: And also he

supposed that Sir Henry Rowles shall not have benefit by this war∣ranty without praying aid of those in remainder, insomuch that he is but Tenant for life, but he supposed that it was no Remainder but reversion, for otherwise they are but as an Estate, and he may have advantage of the warranty, as it seemes without aid praying: But not where there is Tenant for life with the reversion expectant; And so he concluded, and praied Judgement for the Defendant: And he cited one Barons Case, where Tenant in tayl levies a Fine with warranty, and after suffers Recovery: And it was agreed by all the Justices, that yet the Recovery shall be a Barr to the Remain∣der, notwithstanding that the Estate tayl be altogether barred and extinct by the Fine, but Coke cheife Justice said; that Wray•• cheife Justice would not suffer that to be argued, insomuch that it was of so great consequence being the common course of assurances: But it seemes that the Recovery shall not be a Bar•• for the Remainders for the causes aforesaid, and he said that he was of councell in Bar∣tons Case, and thought this Objection to be unanswerable, and of this opinion continued.

Pasche 1612. 10. Jacobi, in the Common Bench. Richard Lampitt against Margeret Starkey.

EJECTIONE Firme upon speciall verdict, the case was this; * 1.156 Lessee for five hundred yeares, devised that to his Father for life, the remainder and residue of that after the death of his Father to his Sister, the Devisor dies, the Sister which hath a remainder takes a Husband, the Husband at the request of the Father grants release, and surrenders all his Right, Tearme, and Intrest, to the Father which had the Possession: And the question was; if by that the remainder of the Tearme should be extinct or not: And it was argued by Dodridge for the Plaintiff, that the remainder re∣maines * 1.157 that notwithstanding, insomuch that this is a possibility only, which cannot be granted surrendred or released, and yet he agreed, that if Lessee for life grant or demise the land, all his Estate passeth without making of any particuler mention of it, as it is agreed in 10. Eliz. Dyer. And for that when the Lessee hath devised the Lands to his Father for his life, that which remaines is only a possibility, for it doth not appeare for what yeares the Si∣ster shall have it, and for that meerely uncertaine, 7. Eliz. Dyer 244. The King Ed. 6. appropriated a Church to the Bishop to take effect after the death of the present Incumbent, the Bishop after that makes a Lease for yeares to begin after the death of the Incumbent, and void for the uncertainty, for the Bishop hath no perfit. Estate,

but future Interest, which is meerely impossibility, and with that agreed Locrofts Case, in the Rector of Cheddingtons Case, 1. Coke where Lessee for yeares makes assignement of so many of the yeares as shall be to come at the time of his death, and void for the uncer∣tainty, insomuch that it is meerely possibility, for that which may be granted or surrendred, ought to be Interesse Termini at least: And he supposed it could not be released, insomuch that he to whom the release is made, hath all the Tearme if he lived so long; and so he concluded, and praied Judgement for the Plain∣tiff.

Harris Serjeant for the Defendant; argued that the first devisee * 1.158 had two Titles, one as Executor and another as a Legatee, and be∣fore entry, and after that he had entred also the Law doth adjudge him in as a Legatee, and before that he enter he may that grant o∣ver, notwithstanding that he hath not determined his Election, * 1.159 for the Law vests the property and possession of that in him, before any entry, but to make an election there ought to be some open Act done, as it is agreed in Welden & Eltingtons Case, where that the first devisee which was Executor, also made expresse claime to have the Tearm as Legatee and not as Executor, and so vested the re∣mainder also, see Com. 519. b. And so in Paramore and Yardlies Case, Lessee for years devises his Tearme to his Executor during his * 1.160 life to educate his Issues, the which the Executor doth accordingly, and this open act was resolved to be a good election, and in Man∣nings case, 8 Coke 94. b. The Executor which hath the 1. Estate devi∣sed to him, saith, that he to whom the Remainder was limited shall have it after his Death, and this resolved to be a good Execution and election, and it is there resolved, that such Election made by the particular Devisee is a good Execution for him in remainder, but here is not this Election to have this as Legatee nor Executor, for there is not any overt Act made by which this may be done.

Secondly he conceived that this is no remainder, but Executory devise, as it is agreed in Mannings Case, and that this may be done by Devise which cannot be done by the party by act Executed, and for that he conceived that there is no possibility, but an Estate Execu∣ted and vested in him which is Executor, though there be no electi∣on made nor Execution of the Legacy, and admitting that it is but a possibility, yet he conceived that it is Propinqua possibilitas, inso∣much that the Tearme is longer, then it may be intended, that any man might live, insomuch that Adam lived but 950. yeares, and this is five thousand yeares, which is longer then any man in the world ever lived, and he said that it is agreed in Fullwoods Case, that possibility may be released to a possession, and with this agreed the opinion of Strange, in the 9 H. 6. 64. And so warranty may be relea∣sed

which is meerly in contingency, as it is agreed in Littleton, and power of revocation may be extinct by release of him that hath the possession of the Land, and so he concluded and prayed Judgment for the Defendant.

Nicholls Serjeant for the Plaintiff, conceived that the Remainder is in Esse, and not determined by the Release.

And first he conceived that the Remainder was executed, inso∣much that the Release was made at the Request of the Father, which was the first Devisee, for this shewes his assent, and implies that he took notice of his Remainder, and assented to it, and he sayd, it was adjudged in Doctor Lawrences Case, that the speaking of these words by the Executors, that is (that they were glad of the Devise) was a good Execution and assent of the Legacy.

Secondly, He conceived that it is only possibility, and for that cannot be released or granted, and he saith that the Law hath great respect of possibilities that Estates may revert, and for that it is adjudged in the 13 of Richard 2. Dower 55.

If Tenant for life grants his Estate to him in remainder in tayl for his owne life, the Tenant enters, takes a Wife and dies, she shall not be Indowed, but the Tenant for life shall have it againe, and it shall be as it had been let to a stranger, and to this purpose also he cited, 18. Ed. 3. 8. Counter-Plea of voucher 8. And it was adjudged in Middletons Case 5. Coke 28. a. that an Executor be∣fore probate of the Will may release a Debt, but not an Admini∣strator before Administration granted, see Com. 277, 278. Fox and Greisbrookes Case, and in 6. Ed. 3. Lessee for anothers life, rendring Rent, the Rent was behind and the Lessor releases to the Lessee all Debts, he For whose life dies, and there the Release de∣termines and discharges the arrerages, for it is a duty, and Debitum is Latine as well for Debt as for duty, also release bars the Lord and Writ of deceit for reverser of a Fine levied of land in ancient De∣mesne, as it is 7. H. 4, and yet Littleton saith, that release of a futrue thing shall not be a barr, and for that if Conusee of Statute Mer∣chant, release all his Right in the land yet he may extend the Statute 15. assis. And so if a mad man release, and after come to his wits and dies, Quere if the Heire may have a Writ of non compos mentis: And he said that it was adjudged in the 25. of Eliz. If an Infant levie a Fine, and after he levies another Fine, this shall be a Barr in a Writ of error for the reversing of the first, otherwise of a release: And here to the principall case to a release made by the Son in the life time of his Father without warranty: And so upon all these cases he concluded, and prayed Judgment for the Plaintiff.

Shirley Serjeant for the Defendant argued, that the acceptance of * 1.161 Release by the first Devisee, shall not be execution of the Devise,

as it was adjudged in Barramores and Yardleys case by the Education of the Issue, or a Devise upon condition to pay money, and the Executor pays it, this is a good execution: But here the thing which makes the execution is only release, which enures as Release. And for that the accepting of the release, it cannot be execution of a Lega∣cy. But if the Executor, to whom the first Devise was made, had had any Co-executor, and he would not have suffered him to joyn in occupation with him, that had been full Declaration of his Intent, that he took it as a Devise, and not as an Executor, as it is agreed in the 10 El. 277. Dyer 50. And he said also, that it hath been agreed to him, that it is such a possibility that cannot be granted, as it is agreed in Fulwoods case, 4 Coke, 66. b. And he said it is not like to Harveys & Bartons case, where two Joynt-tenants for life were, and one made a Lease for years to begin after his death, and dyed, and his companion survived him, and agreed to be a good Lease against the Survivor, notwithstanding the Contingency. And he conceived that this might be released, and that it is not like to contingent actions, insomuch that it is a release of right in Lands, see 5 H. 7. 31. b. Colts Assise, where it is said, if Lord, Mesne, and Tenant are, and the Mesne is forejudged by the Tenant, and after the Lord releases to the Te∣nant, and after by Parliament it is enacted that the fore-judger shall be void, yet the release shall be good against the Lord, and so of a∣ctions by Executor before Probate: and 14 Ed. 3. Barr, Release of Dower by Fyne doth extingush it: and Althams case 8 Coke, if it be made to the Tenant of the Land, that shall be a Barr. And 21 H. 7. fol. the last, Release to a Patron in time of Vacation shall be a Barr in annuity brought against the Incumbent: and if the Lessee for years be outed, and the Disseisor makes a Lease for years to a stranger, and the first Lessee release to them both, this is good, as it is 9 H. 6. and yet regularly such release is not good without privity: But insomuch that it is of right to the Land, and to one which hath possession, it is very good. So Release by Copy-holder, extincts his Copy-hold right, as it is resolved 4 Coke, amongst the Copy-hold cases, and yet hee a∣greed that some possibilities cannot be released, as in Albayns case, power of Revocation, if it be not to the Tenant of the Land, inso∣much that this is a meer possibility. So if an annuity depend upon a condition precedent; but where the returning of the estate is to the party himselfe, as in Diggs case, 1 Coke 174. a. And also the release in this case is the more strong, insomuch that the estate in this is reci∣ted, as in the case of 44 Ed. 3. in release of Ayde. And so he conclu∣ded, that admitting there be no election and execution of the Legacy by the acceptance of the Release, then the title of the Defendant is good, and if it be a good election & execution: Yet he conceived that all the tearm remains in the first Devisee, and that the remainder is

destroyed by the release, and so prayed Judgment for the Defendant, and so it was adjourued.

Pasche 1612. 10. Jacobi, In the Common Bench. Manley against Jennings.

IN Debt upon an Obligation, with Condition to performe, observe, * 1.162 fulfil, and keep, all Covenants, Grants, Articles, Payments, contained in a Lease, &c. The Lessee doth not pay the Rent at the day, and the Plaintiff without making of any request, begins a Suit upon the Ob∣ligation; and upon this matter pleaded in Barr, the Plaintiff replyed * 1.163 that he was not demanded, and upon this the Defendant demurred: And Harris Serjeant for the Defendant argued, that when any pe∣nalty is annexed to a payment of the Rent, be that annexed to the estate, or otherwise, yet it ought to be requested, and without re∣quest to pay it, no penalty sha••l be incurred, as in 22 H. 8. 57. a. b. by Newton, Ashton, and Port, where a difference is taken between an Obligation taken for payment of Rent generally, without any re∣lation to a Lease, and where it is only for performance of Covenants, and Issue taken upon the request, and after demurrer joyned, and the question if the Lessee ought to tender it, 14 Edw. 4. 4. accordingly: And in 21 Edw. 4. 6. a. b. Pigott and Bryan agreed that there shall be no penalty nor Obligation forfeited, without request, where the Obligation is for performance of Covenants, and not precisely for the payment of Rent, and so he concluded, and prayed Judgment for the Defendant.

Nichols Serjeant for the Plaintiff, conceived that the Lessee ought * 1.164 to make tender upon the Land to save the penalty, and this shall be sufficient: and the Lessor need not to make request, and this is the Obligation for performance of Covenants, for this doth not alter the nature of the Rent; but if it be for payment of Rent precisely, there the Lessee ought to seek the Lessor, or otherwise for not payment, he shall forfeit his Obligation, for there tender upon the Land shall not excuse him. And for that if a man makes a Lease for years, rendring Rent at Michaelmass, with nomine poene, if it be not payed within 10 dayes after Michaelmass, and within the 10. dayes, and these diffe∣rences appear, and are agreed in 22 H. 6. 57. and 6 Edw. 6. Brooke tender 20. And he conceived that the Books of 14 Ed. 4. 4. 20. Ed. 4. 6. and 11 Ed. 4. 10. depends upon these differences, that is, that a man▪ shall not distrain for Rent charge without Request, insomuch that it is as a Debt which is due upon Request, and admit that the case were that a man made a Lease for yeares, the Lessee covenants to pay the Rent at the day with a nomine pene in default of payment of that,

and after the Lessee assignes his Interest to one which Covenants to pay the Rent, and performe all the Covenants in the Lease, he demanded in this case who shall make the request, that is, the first Lessor or the Lessee, insomuch that it is penall to the Assignee of them both, and so many Suits may arise upon that, and also he sayd, that it was ruled here upon a motion in arrest of Judgment, that in Debt upon an Ob∣ligation to performe Covenants there need not to be alledged demand, upon Solvit or non Solvit put in Issue, for it may be pleaded that it was tendered or payd, and so he sayd it is confessed by the Demurrer, that the Obligation is forfeited, and for that he prayed Judgment for the Plaintiff.

Coke cited Myles and Dragles Case, where a man was bound for performance of a Will, he need not to pay Legacy devised by that for which is no day assigned without request, so if the Obligation be for payment of Legacy expresly and no day assigned, and so it was ad∣journed.

Trinity 1612. 10. Jacobi, in the Common Bench. Gravesend Case.

IN Debt, the case was this, that is, the Port-reeve, Jurates * 1.165 and Inhabitants of Gravesend, brought Debt against one Ed∣monds a Water man, which plyed the Ferry betwixt Graves∣end and London, and counts that Gravesend and Milton are ancient Townes and next adjoyning to the River of Thames, and that the In∣habitants of these Townes have had time out of minde, &c. ancient passage from thence to London, and have used to make By-Lawes, and constitutions for the Government of that passage, and have provided Water-men, Steer-men, and Rowers for the said Passage, the which used time out of minde, to take of every Passenger and his Fardell two pence, and that for their maintenance, and ought to hold the Passage, if their benefit at this rate amounted to foure shillings, or more, and that the Queen Elizabeth by her Letters Patents under the great Seale of England, incorporated the said In∣habitants by the name of Port-reevs, Jurats, and Inhabitants of Mil∣ton and Gravesend, and this was in the tenth yeare of her Raigne, and also that they injoyed the said Ferry without any Interruption, and that they held the tide and Ferry, and that the Port-Reeve, Jurat, and twelve of the Inhabitants had power to make By-Laws and Coustitutions for the government of the sayd Ferry, and that eve∣ry Water-man should observe his turn, and also to impose Fines for the not observing of them, and that in the thirty seventh yeare of the said Queene Elizabeth, a Constitution was made by the then

Port-reeve, Jurats, and twelve of the Inhabitants of the said Towns, insomuch that many Water-men ply poore Passengers, before that the Barge was furnished, and so that many other Passengers were inforced to loose their passage by the Barge, insomuch that the pas∣sage did not amount to four shillings, so that they did not hold their tyde, so that the Barge which had such preheminence, that is, that no Water-men shall ply any Faire or passenger till the Barge had recei∣ved so many of their passengers, by which they might receive four shillings at the Rate aforesaid, and be removed from the Bridg at Gravesend unto the Land marke, and that if the Tiltboate, or any other Water-man received any passenger before that the Barge be so furnished, that he should pay the sayd Port-reeve, Jurats, and In∣habitants for the maintainance of the said Barge for every passenger so received two pence, and so assigned breach of the By-Law in the Defendants, and that he had received so many of the passengers be∣fore the Barge was furnished, which amounted to as much as is de∣manded, by which Action accrued to the Plaintiff to demand it, to which the Defendant pleads that he oweth nothing to the Plain∣tiffs in manner and forme as they have demanded it, and by the Jury at the Barr it was found for the Plaintiffs, and after that upon motion in the behalfe of the Defendant, the Judgment was arrested, and now at this day Judgement was prayed for the Plaintiffs.

By Dodridge Serjeant of the King, and he conceived that the cu∣stome was good, notwithstanding that it was alledged in the Inhabi∣tants, and he sayd it was no prescription but Custome, and it is de∣clared to be a good and laudable custome and usage by the Statute of 6 H. 8. Chapter 7. Rastall Passage 8. and he agreed that Inhabitants cannot prescribe to have matter of benefit, but to have matter of Ease, he conceived they might very well, as it is 15 Ed. 4. 29. 22 H. 6. Prescription 46. 18 Ed. 4. 2. 18 H. 8. 1.

Secondly, As to the Objection, that the living of the other Wa∣termen which are not imployed in the Barge is by that abridged, and that when the Water-man is willing to carry, and the Passenger to be carried by him, it is no reason that a By-Law should abridge this voluntary act of a man, upon which his lively-hood depends, he sayd that so it is not, for nothing is challenged by the By-Law, but only preheminence, and that provision be made for the Poore, which is for the publick good, for every one may go with any that he will paying two pence to the Barge or after the Barge is furnished paying nothing, and he conceived that the Liberty of the subject ought to be so abridged, but not alltogether abolished, as it is a∣greed in the Arch-Bishop of Yorkes Case in the Register in the Writ of Trespasse fol. 105. b. c. 8 Coke 125. a. Wagoners Case, 8 Ed. 3. 37. a. 3 Ed. 3. 3. Where the Bishop of York claimes in the Mannor of Ri∣pon

such liberty, that is, that he and all his Predecessors time out of mind, &c. have had a custome that none in the said Town ought or had accustomed to use the office or mistry of a Dyer, with∣out Licence of the said Arch-Bishop or his Bayliff of the said Town: And also he cited a case in the Register, where the Abbot of West∣minster prescribed to have a faire in Westminster upon Saint Edwards day, and for ten daies after: And that no Citizen nor other in London, during that time should sell any thing in London, but in this faire, and after the Abbot remitted this priviledg, and had of the Citizens of London for that; one thousand five hundred pound: And so it was adjudged in Sir George Farmers Case, for a bake-house in Tossiter, and that none shall bake any Bread to sell, but in his bake-house and good: And so he conceived that Custome may be restrained all passengers till the Bardge be furnished, as in 2. Ed. 3. 7. Gran•• that all Ships, laded and unladed in such a Haven, shall be laded and unladed in such a place, and a good grant, notwithstanding that it restraines all people to a certaine, and if this be good by grant, then a Fortiore shall be good by custome▪ and to the other objection, that this custome shall only bind the In∣habitance and not strangers, he conceived that custome might tye strangers that came into the said Town very well, as it is agreed in 22. H. 7. 40. So the By-Law shall bind strangers, when it is only for Acts to be made within the Town and for the publike good, as it is agreed in the 44. Ed. 3. 13. and 8. Ed. 2. assis. 413. ordinance a∣gainst him which estops passage by water and good, and so he a∣greed in the Chamberlaine of Londons Case, that By-Law made in London shall bind all, as well strangers as Citizens, which sell any Drapery in the Hall there, though that they Inhabit in any place out of the City: And also he said that the Bardge-men which have the losse, shall have the benefit, for they shall have the two pence for every one that passes otherwise, before that they are furnished, and this is recompence for them which are tyed to perpetuall atten∣dance, and he conceiveth that the demand is very well made, not∣withstanding that the duty accrues from many times, for he hath carried so many men at one time and so many at another, the which in all amonnts to the sum demanded: And so he concluded, and praied Judgement for the Plaintiffs.

Wynch Justice, that the Count is not good, for the Plaintiffs have * 1.166 not alledged that they have used time out of mind, &c. To main∣taine Ferrey, but only that they have used to make Constitutions, Secondly, it is not alleadged that they onely have used to main∣taine Ferrey, and if they cannot prescribe in the sole using of that, and to exclude others, then others may use that as well as they, being for the publick good, for how shall they be punished, if

that they do not use and maintaine; at the Common Law the In∣habitants of a Towne shall be punished for not repairing of a Bridge, or high Way, the which may be maintained by the Inhabitants to∣gether, and if they do not do it, then others may do it, as well as others may repaire high Waies or Bridges, as those which have used to repaire them, as a common Host shall be punished in Eyre if he refuse to lodge any man, and yet he which he refused to lodge, may have an Action upon the Case for the refusall: Also the Patent gives the forfeyture to the Port-reeve, but the By-Law doth not make any mention who shall have it, and he conceives that it shall not be as upon the Statute of 2. Ed. 6. Which gives penalty for not setting forth of Tythes, but doth not appoint who shall have them: and this was adjudged to be to him which ought to have the Tythes, but this cannot be so here, insomuch that it is against the Grant, and agreed that a stranger shall be bound by By-Law, where it is for the publick good, but not otherwise, and also the custome that these Bardge-men shall have the preheminence, may be good, as well as custome that the poore of such a Parish shall have common in such a place till such a day, and then the others, and so in this case; and so he concluded that Judgement shall be Arrested.

Warburton Justice conceived that the Count is good, and that * 1.167 the Inhabitants may prescribe very well, as 47. Assis. foure Townes were charged for the repaire of a High way, and so may the two Townes for the Ferrey, that he intended to be high way upon the water, and also he conceived that this is inquirable in Eyre, and also by the Justices of the Kings Bench, and now by the Justices of Assises by Indictment by the name of Inhabitants: The which may be as good an Action upon the Statute of Winton against the Inhabitants of the Hundred, and so he conceived, that in this case the Inhabitants of Milton and Gravesed may be punished by Indictment if they do not repaire the Ferrey, and that the King there this day may erect a Ferrey in place where it is necessary, for the King may erect office which is for the benefit of the Common Wealth, but not to charge the Common Wealth. And that if any will passe in his owne Ferrey, without carrying of another, this is no breaking of the By-Law; and so he concluded, that Judgement should be given for the Plaintiffs.

Coke cheife Justice seemed the contrary, for he conceived it is not shewed in the Count to whom the Ferrey belongs, for the own∣ers of that are not mentioned, the which it ought: And yet he agreed that a Ferrey may be without owner, as it is agreed 12. Ed. 4▪ 8. Insomuch as this is locall and need not any Agent, but out of Leete and Ferrey otherwaies it is, for there ought to be Agent, or otherwise the Ferrey should be of no use, and for that there ought to be an owner.

Secondly it is alledged that Infra Easterne Townes, there is such a custome that the Inhabitants may make constitutions, and that the Inhabitants shall maintaine a Ferrey, but not that there was a Ferrey, but that he conceived it might be good, insomuch that it is not traversable.

Thirdly what Action the Inhabitants may have, if they be disturbed of it, for this is no easement, and they have no Estate of Inheritance, and for that the Prescription by the name of Inha∣bitants is not good, for they cannot have Estate, and to the Sa∣tute of 6. H. 6. chapter 7. Which saith, it is a laudable custome and usage that a Bardge shall be maintained, but not that Inhabitants shall maintaine that, nor those incorporate, so that the Statute doth not make them capable of such a thing, for which a Writ of right, and assise by the Statute of Westminster 2. lies.

Fourthly, That the custome and the Patent are repugnant, for by the custome the Bardge hath not any preheminence nor precedence, but equall liberty was to all water-men to carry what passengers that they could, and with that also agreed the Statute of 6. H. 6. And then if the custome were not so, this cannot be made by the grant of the Queene, nor by the By-Law, for this is the liberty of the Subject, the which cannot be abridged nor restrained by them, for if the King may grant such preh••minence here, so may he do in all other Ferreis and places, and also in the practise of the Law, to have preaudience in this Court, and in all other Courts of Justice: And so should it be also of Butchers and Bakers, and all others which used buying and selling: And he said that the King hath pre∣emtion of time in some places, but this is not by his prerogative, but by the custome of the place; And he agreed that custome in sub∣ject may have preemption, but not by the Kings grant, for the King cannot grant that to another that he himselfe hath not by his pre∣rogative, and perchance he which hath such grant, will not come to Market, till all the Market be ended, and he conceived that the River of Thames is so publick, that the King cannot restraine that by his grant, no more then he can grant preheminence to a Coach∣man to carry people into the Streets of London: The which is ad∣judged upon the matter in the 50. of Ed. 3. Toll. 2. Where the King grants Toll for every one which passeth by a Common way: And agreed that it was not good if it be in a Common Way, or in a Com∣mon River, for as it is resolved in the 22. assis. 93. Every common River is as high Street, and Common Waies and the passengers Way as the water increases, and the Thames is a branch of the Sea and a common Street, as it appears by Bracton fol. 8. 5. The Plaintiffs have brought their Action by the name of Corporation of Port-reeve, Jurats, and Inhabitants of Milton and Gravesend, and they

are incorporate by the name of Port-reeve, Jurates, and Inhabitants of Gravesend, possessors of Ships, the which words are left out in the name, by which the Action is brought, so that the By-Law is not made by the same name, by which they are incorporate, nor the Action brought by the same name: And yet he agreed that they might make a By-Law according to the grant, without calling all the Inhabitants to it.

Sixtly, He conceived that the constitution is not pursued, for the constitution is; that if any Water-man carries any passenger willing to go by the Bardge, that such Water-man shall pay for every such passenger two pence. And it is not averred that the pas∣sengers which the Defendant hath carried, were willing to be car∣ried by the Bardge, and so not pursued.

Seventhly, The Constitution is further that no Wherry-man shall carry any passenger, before the Bardge be fully dismist and trans∣mist, and this is not good, for it may be the Bardge will not passe to London at all this Tyde, and for that it ought to be averred that the Bardge departs in convenient time after that it is furnished, for otherwise custome that none shall put his Beasts into such a place, till the Lord hath put in his Beasts is not good, for it is resolved in 2. H. 4. 24. And the reason is, insomuch that it may be, that the Lord will not put in his Beasts at all: And to the objection that the By-Law shall not bind a stranger, he conceives that if all other cir∣cumstances had been concurrent; that had been very well, insomuch that it was within the place where they had power to make By-Lawes, and also for the publick good, and this as well as the custome of Forraine bought, and Forraine sold, the which is only for stran∣gers: And to the objection, that they are severall owners of se∣verall Bardges, and for that ought not to joyne in this Action, he saith this doth not appeare by the Count, but it is said that they were possessed, and for that they shall be intended Joynt Owners; and so he concluded, that Judgement shall be arrested.

Trinity 10. Jacobi, 1612. in the Common Bench. Downes against Shrimpshaw, Trin. 9. Jacobi, Rot. 334.

IN action of Trespasse for Assault and Battery, the case was this: The Plaintiff in his Count supposeth the Trespasse to be made the first day of May, 8 Jacobi, at such a place. The Defendant pleads that the Plaintiff the same day would have assaulted and beaten him, and that the Defendant laid his hands upon him to defend himselfe, and if any hurt came unto him, it was by his own wrong, the which is the same Trespasse for which the Plaintiff hath complained him.

The Plaintiff replyes, of his own wrong without such cause, upon which Issue was joyned; and at the Nisi prius for Justification, the Defendant produced Witnesses, which proved an assault to be made by the Plaintiff upon the Defendant long time, that is, by the space of a yeare before the day contained in the Count, and that at this time the Defendant to defend himselfe, hath assaulted the Plaintiff: And upon this Evidence the Plaintiff demurred, insomuch that this proves an assault made at another day then is contained in the Count, and the Defendant by pleading hath confessed an Assault and Battery made upon the Plaintiff, the day contained in the Count, and now upon Evidence proves his Justification at another day: and if this E∣vidence were sufficient to prove his Justification, was the question. And if by this pleading the day be made materiall, in which it was agreed by the Court, and Councell also, That if the Defendant had pleaded not guilty, the day had not been materiall. But the Plain∣tiffe might have given in Evidence any Battery before the day contai∣ned in the Count, or after before the action brought, and this is suffi∣cient to prove his Declaration: but the Parties, that is, the Plain∣tiff by his Count and Replication, and the Defendant by his Justifi∣cation, have agreed of the day: And for that if they may now vary from that it was moved, and so it was adjourned.

Trin. 10. Jac. 1612. in the Common Bench. Laury against Aldred and Edmonds.

IN Debt against the Defendants, as Executors of William Aldred, * 1.168 dead, upon an Obligation made by him in his life time, of 50. l. The case was this, one of the Defendants confessed the action, the o∣ther pleaded that the Testator dyed such a day, and that he inten∣ding to have letters of Administration, caused the Corps of the Te∣stator to be buryed, and his goods safely to be preserved and kept, and that after administration was granted to him by the Arch-Deacon, and that after that one Harnego brought action against him as Admi∣nistratrix by letters of Administration committed to her by the Com∣missary of the Bishop, being Ordinary there, and recovered, and aver∣red that this was a true Debt, and that he had no goods which were the Testators, besides the Goods and Chattels which did not amount to the said Debt, and so demanded Judgment if action, and upon this the Plaintiff demurred in Law.

Davis Serjeant argued for the Plaintiff, that the Defendant ought * 1.169 to have confessed and avoyded, or traverse the point of the action, and not conclude Judgement if action: See 1 Eliz. Dyer 166. 10. When intermedling made men Executors of their owne wrong, that

is, when he meddles without any colour of title or authority, as re∣ceiving Debts, and disposing the goods to his owne use. But if a man administer about the Funeralls, or be made a Coadjutor, or Overseer, * 1.170 this shall not make him Executor of his own wrong, or by reason of a Will which is after disproved by probate of one Letter: and in these cases, if he be charged as Executor, he ought to plead speciall matter, without that, that he administred in other manner: and in 20. H. 7. 27. a. 28. b. adjudged in Debt against one as Executor, which had Letters, ad Colligendum bona definisti only, which pleaded the speciall matter, without that, that he administred any other way, and other manner was out of the pleading; for he did not administer in any manner with Intermedling by the letters ad colligendum: and 9 Ed. 4. 33. b. If an action be brought against an Executor of his owne wrong, and after administration is committed to him by the Ordina∣ry, this shall not abate the action: upon which Books he inferred, that the Defendant ought to have traversed, that he administred as Executor, and insomuch that hee hath pleaded that he hath not so pleaded, the plea was not good; and also insomuch that he hath plea∣ded, that he hath no goods of the Intestate besides goods which doe not amount, &c. And this is uncertain, and not good, for he ought to have shewed what goods he had in certain, and the value of them, insomuch that they remain as Assets in his hands, and so he conclu∣ded, and prayed Judgment for the Plaintiff.

Barker Serjeant for the Defendant, argued, that though that the * 1.171 action in which Harnego recovered, was begun after the action now hanging, yet insomuch that judgment was first had in that: now that shall be preferred otherwise before Judgment, for till Judgement the elder action shall be preferred. And he conceived, that if the Writ was abateable, and the Defendants would not abate it by plea, that shall not prejudice the Plaintiff which is a stranger, and doth not know if these Defendants are Executors, or Administrators, as it is said by Danby, 9 Edw. 4. 13. And he conceived that the plea is good, that the Defendants have not goods, besides the goods, which do not amount, &c. And divers presidents were cyted by him to this pur∣pose, as Trin. 18. Eliz. Rot. 1405. between Blanekson and Frye. Hillary, 40 Eliz. Rot. 902. Smalpeeces case: and Trin. 44 Eliz. Rot. 1900. between Goodwin and Scarlet, in all which the pleadings were all one with the plea in question, and no exceptions taken to that: and infinite other presidents may be shewed in the point, for which cause he demanded Judgment for the Defendants.

Coke cheife Justice seemed, that in an action brought against one as Executor, he may plead that Administration was committed to him for such intent that the dead dyed Intestate, and demands Judg∣ment if action without traverse, that he was Executor, and with this

agreed, 1 Ed. 4. 2. a. 20 H. 6. 23. And so if the Ordinary be charged as Executor, he may plead that he administred as Ordinary without traverse, that he was Executor, but only shewed that the party dyed Intestate, and the Plaintiff ought to reply, that he made a Will, and the Defendant proved that, and traverse that he dyed Intestate, and with this agreed 9 Edw. 4. 33. and 1 Edw. 4. 11. And if an action be brought against Executor of his own wrong, hee may plead that administration is granted to such an one, and the Party dyed Inte∣state, and demand Judgment if action, for he shall not be charged for more goods then came to his hands: But if a man administer of his own wrong, and after rightfull administration is committed to him, yet he may be charged as Executor of his own wrong, insomuch that Right of action is attached in him. But this seems for the goods that he hath administred before rightfull administration committed unto him. And he cyted 14 Eliz. Dyer 305. b. where in debt brought a∣gainst one as Executor, which pleads never Executor, nor ever ad∣ministred as Executor; and the Plaintiffe replies, that he administred as Executor of the Will, &c. and so to Issue. And in Evidence the Defendant shews Letter of administration to him committed of goods of the dead, by which he administred them, and before that he did not administer, and this seems there to be good Evidence, but the Book was Quere of that, and for that he would rather plead that in abatement of the Writ, and so the Book inclined also. And he con∣ceived here, that the medling with the goods here by the Defendant, as Administrator, made him Executor of his own wrong, insomuch that it was for Funeralls, and when it is a work of Charity, and the o∣ther is to preserve them. And the Defendant hath not conveyed him∣selfe to be Executor, insomuch that he said, that administration was committed to him by an Arch-Deacon, and he doth not say that Administration of right belonged to him to commit, insomuch that hee hath but a sub-ordinate Jurisdiction: And the Com∣mon Law doth not take notice, that he, nor no other but the Ordina∣ry hath such power, and for that the power of all which have such subordinate and peculiar Jurisdiction is pleaded, that ought to be shewed, as it seems by 1 Ed. 4. 2. a. b. 22 H. 6. 23. And the rather when this is pleaded by the Administrator himselfe, which ought to have notice of that, and make title to himselfe; and if so it be, then he conceived that the Recovery by Hornego was void, and so all the goods confest, remain as Assets. Also he conceived, that if the Exe∣cutor allow a Writ to suffer Judgment to be had against him, upon a Writ which is abateable, he shall not have allowance of that, but this shall be returned as Devastavit, as in 10 Edw. 3. 503. a. If the Tenant vouch when he might have abated the Writ, he shall lose the benefit of his Warranty: So here and Com. Manwells case, 12. a. 22

H. 6. 12. 〈◊〉〈◊〉 Also he conceived, if a man be charged as Administrator where he is no Administrator, he cannot plead that he never admini∣stred as Administrator, but he ought to traverse the Commission of Administration, as it appears by 21 H. 6. 23. And it seems also to him, and by 9 Edw. 4. 33. that if a man be an Executor of his owne wrong, and after administration is committed to him, and he is char∣ged as Executor, after administration committed, that the Writ shall abate, otherwise if administration be committed, hanging the Writ. So if a man be made Executor, and hee not knowing of that, Iues letters of Administration, he shall be named Administrator, and if after when he hath notice of the Will, he proves it, then he shall be impleaded by the name of Executor; for in such manner as the power is given to him by the Bishop, he shall be charged: and it seemes though that he plead where he is Administrator, and is sued as Exe∣cutor, or otherwise in such manner, that hee might have abated the Writ, or suffer Judgment, yet the Writ shall abate: and he intended also, that Executor of his owne wrong, might pay debts due to ano∣ther, and shall be discharged, and shall not be charged with more then he hath in his hands. And if two Executors are joyntly sued, and one confesse the action, this shall bind him and his companion al∣so for so much as he hath in his hands. But if an Executor of his own wrong confesse the action, this shall not prejudice him which is right∣full Executor, and so he conceived that judgment ought to be given for the Plaintiff.

Warburton Justice conceived that the Barr is good, notwithstan∣ding * 1.172 that he did not shew, that the Arch-Deacon had power to grant Administration, insomuch it is no Inducement and the Defen∣dant doth not relie upon it, as Littleton saith, in Trespasse where the Defendant pleades that it was made by two, and the Plaintiff relea∣ses to one, and if the Defendant pay due Debts it is not materiall, whether he have Authority or not, though that it be in another re∣spect: As if a man be Indicted of man-slaughter and aquitted, and after is Indicted of Murder by the same man, he may pleade another time aquitted, insomuch that these are matters of substance: But here it is but of forme, and then if it be not shewed it is not materiall: But the matter upon which he, relied was, insomuch that the Action was brought against two Executors, and one hath confessed the Action: And he intended without question, that if this shall bind his companion, and for that he will not dispute the other questions, but declares his opinion cleerely, that the Plaintiff ought to have Judgement against both these Defendants upon the confession of one, and this shall bind his companion: Wynch Justice conceived * 1.173 that the Plea is good by Administrator without traverse, insomuch that it is to the Writ, as it appears by 9 Edw. 4. 33. 37 H. 6. 32 H. 6.

1. Ed.. 4. 2. 50. Ed. 3. And he conceived that the burying is not any Administration, nor the taking of the goods into his custody to preserve them, no more then in Trover and Conversion, when a man takes the goods for to preserve them: And he agreed that where a man intitles himselfe to goods by Administration committed by any but by the Bishop, he ought to pleade specially, that he which committed it had power to doe it: But here it is not so, but only conveiance, and for that need not here such precise plea∣ding of that, insomuch it is only execution of Administration, and for that it is good without intitleing the Arch-Deacon: And he agreed that an Executor of his owne wrong may pay Debts due to another, and shall be discharged: And he agreed also that the Confession of one Executor shall bind his Companion, and that Judgement shall be given upon that for the Plaintiff: And they all agreed that the pleading, that the Defendant hath no goods, be∣sides the goods which do not amount, &c. it was not good, and for these causes they all agreed that Judgement ought to be given to the Plaintiff.

Trinity 10. Jacobi, in the Common Bench. Tyrer against Littleton 9. Jacobi, Rot. 299.

IN Trespasse for taking of a Cow, &c. Upon not guilty plea∣ded * 1.174 by the Defendant, the Jury gives speciall Verdict as it fol∣lowes, that is, that the Husband of the Plaintiff was seised of eighty Acres of Land, held of the Defendant by Harriot service, * 1.175 that is, the best Beasts of every Tenant which died seised, that he had at the time of his death, and that the Husband of the said De∣fendant, long time before his death, made a Feoffment of that Land in consideration of marriage and advancement of his Son, to the use of his Son and his Heires, with such agreement, that the Son should redemise to his Father for forty yeares, if he so long lived, and that after the marriage was had, and the Son redemised the Land to his Father, and the Father injoyed that accordingly, and paied the Rent to the Lord, and after died, and that the Plaintiff had no notice of his Feoffment, and that the Husband at the time of his death was possessed of the said Cow, and that the Defendant took it as the best Beast in name of Harriot, and also found the Sta∣tute of 13. Eliz. of fraudulent conveiances to deceive Creditors, and so praied the direction of the Court, and this was agreed by the Plaintiff aforesaid.

Nicholls Serjeant, first that all conveiances made upon good consi∣deration * 1.176 and Bona Fide are by speciall Proviso exempted out of the

Statute of 13. Eliz. chap. And he conceived that this is made upon good consideration, and Bona Fide, and for that it is within the said Proviso, and also he said, that as upon the Statute of Marle∣bridge there is fraud apparent and fraud averrable, as it appeares 12. H. 4. 16. b. Where in ward the Tenant pleads that his Father levied a Fine to a stranger, the Lord replies that this was by Col∣lusion to re-enfeoff the Heire of the Tenant at his full age, and so a∣verred that to be by Collusion to out the Lord of his Ward, and this is fraud averrable: But if the Tenant had enfeoffed his Tenant immediately in Fee-simple, this is apparent without any averment, and the Court may adjudge upon it: And so upon the Statute of 27. Eliz. chap. 4. it appears by Burrells Case, that the Fraud ought to be proved in Evidence, or confessed in pleading, or otherwise this shall not avoid conveiance, for it shall not be intended, 6 Coke 78. a. and see 33. H. 6. 14. b. Andrew Woodcocks case, upon which he inferred, that this is but a fraud averrable, if it be a fraud at all, and of this the Court could not take notice, if it be not found by the Jury, and he said upon the Statute of 32 H. 8. Of Devisees, as it appeares by Knights Case, 8 Coke, and 12. Eliz. Dyer 295. 8, 9, 10, 10, 11, 12, 13, 14, 15, 16, 17. And so he concluded, and praied Judgement for the Plaintiff.

Harris Serjeant for the Defendant; argued that the Circumstan∣ces * 1.177 which are found in the speciall Verdict are sufficient to satisfie the Court that it is fraud, for as well as the Court may give directi∣on to the Jury upon Evidence that it is fraud and what not, as well may the Court Judge upon the special matter, being found by special Verdict at large, as in 9 El. Dyer 267. and 268. that is, the special mat∣ter being found by special verdict at large, as in 9 El. Dyer 267. 268. that is, the speciall matter is found by Inquisition upon Mandamus, and leave to the Court to adjudge if it be fraud or not, and in 12 El. 294. and 295. 8. the speciall matter was found by Jury upon Eligit directed to the Sheriffe, and by him returned to the Court: And in Trinity 27. Eliz. between Saper and Jakes in Trover the Defen∣dant pleades not guilty and gives in Evidence as assignement of a Tearme to him with power of revocation: And the Court direct∣ed the Jury, that this was fraudulent within the Statute of 27. Eliz. to defraud a purchasor, and in Burrells Case 6. Coke 73. a. before the fraud to the Court upon Evidence to the Jury, and the Court gave direction to the Jury that it was fraud, and that upon the Circumstances, which appeares upon the speciall Evidence: And so in this case he conceived, that insomuch the circumstances appear by the Verdict, that the Jury may very well adjudge upon it; and so he concluded, and praied Judgement for the Defendant.

Coke cheife Justice that the Statute of 13. Eliz. Doth not aid * 1.178

the Defendant, insomuch that the Feoffment was made for good con∣sideration, and for that shall be within the said Proviso, for if that shall be avoided at all, that shall be avoided by the Statute of Marlebridge, which is ouly affirmance of the Common Law, and this is the reason, that not withstanding the Statute speakes only of Feoffment by the Father to his Son and Heire apparent, yet a Fe∣offment to a Cosin which is Heire apparent, is taken to be within the Statute, and in the 24. of Eliz. in Sir Hamond Stranges Case: It was adjudged that if the Son and Heire apparent in the life time of his Father, purchase a Mannor of his Father for good considerati∣on, this is out of the Statute, and so it was adjudged in Porredges Case; also he said that the Law is an Enemie to fraud, and will not intend it being a conveiance made for consideration of a mar∣riage to be fraudulent, no more then if the Father had made a Fe∣offment to the use of a stranger for life, the remainder in Fee to his Son and Heire, the which is not within the Statute of Marle∣bridge, as it is agreed in Andrew Woodcocks Case, 33. H. 6. 14. b. Also he conceived, that the Feoffment in consideration of marriage, naturall love to his Son, and that the Wife of the Sonne shall be Indowed, and that the Son should redemise that to his Father for forty yeares, if he so long lived, and that the Father should pay the Rent to the Lord, these he intended to be good considera∣tions, and for that should be within the said Proviso of the Sta∣tute of 13. Eliz. otherwise if it had been to defraud Creditors: * 1.179 But if it had been to such intent, that is to defraud Creditors, this shall not be extended to other intent, that is to defraud the Lord of his Harriot: And in the 28. of Eliz. it was adjudged in the Kings Bench, if a man make a Feoffment in Fee to the use of himselfe for life, remainder to his Son in tayl, with divers Remainders over, with power of Revocation, and after bargaines and sells to a stran∣ger upon condition, and after performes the Condition, that yet the first conveiance remaines fraudulent, as it was at the time of the making of it: But this is only as to the purchasor and not as to any other, And in Goodhers Case, 3. Coke 60. a. In debt against Heire which pleads nothing by discent day of the Writ purchased, the o∣ther joynes Issue, and gives in Evidence fraudulent conveiance, and upon speciall Verdict adjudged that it was very good: See also 4. Coke 4. b. c. Vern••ns Case, the Collusion to have Dower and Joyn∣ture also: And so he concluded that Judgement should be given for the Plaintiff.

Warburton Justice agreed that the fraud shall not be intended if * 1.180 it be not found, no more then if a man grant an Annuity to ano∣ther, Quam diu se bene gesserit, in Annuity, for that he need not to averr that he hath behaved himselfe well, for this shall be inten∣ded,

if the contrary be not shewed of the other party: So here inso∣much that it is not found to be fraudulent, it shall be intended to be Bona fide: And he agreed that if it had been fraudulent at the first: If the Son had made a Feoffment over in the life of the Father, as it is agreed in Andrew Woodcocks Case, 33 H. 6. 14. that then the fraud is determined: So here when the Son hath made a Lease to his Father, this determines the fraud if any be, and so he concluded that Judgment should be given for the Plaintiff.

Wynch Justice agreed, insomuch that it is expresse consideration * 1.181 found by the Verdict, and for that other consideration shall not be intended, and also that it shall not be intended that the Conveyance was made to defraud or to deceive the Lord of such a Peccadell as Harriot is, which is of small consequence; but if it be a fraud within the Statute of 27 Eliz. apparent; that is, if it containe pow∣er of revocation, which is declared to be apparent fraud by the Statute, the Court may take notice of that without any averrment; And he saith, That in the 2. and 3. Eliz. Dyer, Wainsfords Case, 193. a. and 9 Eliz. Dyer 267, 268. there is no averrment of fraud, but expresse Issue joyned upon the Fraud, and for that he need not any other averrment: And so he concluded also that judgement should be given for the Plaintiffe, and so it was Ruled accordingly, if the Defendant did not shew other matter to the contrary at such a day, which was not done.

Trinity 10. Jacobi 1612. In the Common Bench. Strobridge against Fortescue and Barret.

IN a Replevin the case was this, A man seised of Lands in Fee * 1.182 devises Rent out of it with clause of Distress and dies, his Son and Heire enters and dyes, the Rent is behind, the Son of the Son dyes, and his Son enters and makes a Feoffment to the Plain∣tiff, and the Devisee of the Rent, releases all Actions, Debts, and Demands, to the Feoffor, and after distraynes the Beasts of the Feoffee, for the Rent behinde, before the Feoffment, and it seemes the Release is not good, insomuch that the Devisee had no cause of Action at the time of the Release made, against him to whom the Release is made, nor Demand against him, otherwise if the Re∣lease had been made to the Feoffee, for he was subject to the distress, and this is a demand.

Trinity 10. Jacobi. 1612, In the Common Bench. Case of Cinque Ports.

NOTE that Coke said, that it hath been adjudged by three * 1.183 Judges against one in a Case of Cinque Ports, that the Cinque Ports cannot prescribe to take the Body of a Free∣man in Withernam, as they use for another; for this is against the Statute of Magna Charta, Quod nullus liber homo Imprisonet••r nisi per Legate Judicium, and also against the liberty of a Subject, but they more inclined that they might take the Goods of one in Withernam when another is arrested, and them retain, and this seemes the more reasonable Custome and Prescription.

The Case was, Tenant for life, the Remainder for life with warran∣ty, * 1.184 the first Tenant for life was impleaded, and he vouches him in Reversion, but he first prays in aid of him in Remainder, and if this aid prayer shall be granted this was the question.

And it seemes by Nicholls Serjeant, that it shall not be granted, * 1.185 see 11 H. 4. 63. Where it is agreed that if a man makes a Lease for life, Remainder for life, Remainder in fee, and the first Tenant for life hath ayd of him in remainder for life, and he in Fee joyntly, and 44 Edw. 3. 20. in Trespasse against a Miller which takes Toll where he ought to grind Toll-free; the Defendant saith that J. had the Mill for life, and that he is his Deputy, the reversion to W. in Fee, and prays ayde of the Tenant for life, and of the Tenant in re∣version, and had it of the Tenant for life, and not of him in reversion, and this for default of Privity, as it seems to Brooke, Ayde 30.

Haughton conceived that it should be granted for Tenant for life, * 1.186 notwithstanding that he may plead any Plea, yet he doth not know what Plea to plead without him in reversion, but by the ayde, pray∣ing al the Estate shall be reduced into one, and the warranty shall come; and for that he conceived, that the first Tenant for life shall have ayde of him in remainder for life.

Wynch Justice conceived that ayde shall not be granted against the * 1.187 first Tenant for life, against him in remainder for life, for he con∣ceived that ayde is alwaies to be granted, when the defects of him and his Estate which prays it, are to be supplyed by him which is prayed; that this is the reason that he may have ayde of his Wife, and where there are many remainders, the first Tenant may have ayde of them all; otherwise where he is Tenant for life, the re∣mainder for li••e, and the reversion expectant, for the Tenant for life cannot supply his defects; and with this agreed the expresse Booke of 11 Edw. 3. Fitz. Ayde 32. and so he concluded that it should not be granted.

Warburton Justice doubted, and insomuch that the granting of * 1.188 ayde where it is not grantable, is no error, but otherwise of the de∣nying of that where it ought to be granted, he would be advised: But he conceived that the cause for which ayde is granted, is not the feeblenesse of the Estate of him which prays it onely, but to the intent that they may joyne together, and one defend the other, for Tenant for life may plead some Plea, which he in reversion may plead, saving the joyning of Issue in a Writ of Right, and he had * 1.189 a Manuscript of the 11 Rich. 2. where Tenant for life, the remain∣der for life, the remainder for life was, and the first Tenant for life had ayde of them both in remainder, and so concluded.

Coke cheif Justice that aid ought not to be granted in this Case, in∣somuch * 1.190 that he which is the first Tenant hath greater Estate then he in Remainder, for his Estate in Remainder is more Remote and un∣certaine, and to the Book of 11 R. 2. He agreed, that the ayd was granted of all in Remainder, but there they in Remainder had Estate tayle, and he sayd that ayd is to be granted in two Cases, in per∣sonall Actions to maintain Issue, and when Tenant for life prays in ayd of him in Remainder or Reversion, without which they cannot answer nor plead, nor Issue cannot be deduced, but so it is not here, for the first Tenant for life may answer and plead to the Issue, as well without him in Remainder for life, as with him, for if Te∣nant for life, Remainder in tayl, Remainder in fee, if the first Tenant for life be impleaded he shall have ayd of him in Remainder in tayl, otherwise if the Reversion had been to the first Tenant for life, with a mesne Remainder in Tayle, 41 Ed. 3. 42 Ed. 3. 10 Ed. 3. And 11 Ed. 3. Receit 118. Tenant for life, Reversion for life, Remainder in fee was, he in Reversion for life shall be received upon default of the first Tenant for life, and if he will not, then he in Remainder in fee shall be received, and yet he shall not have Wast, as it appears by 24 Ed. 3. for this destroyes the first Estate; but the receit maintains and preserves it, and he sayd, that the 11 Ed. 3. Ayd. 32. before cited, rules this case, and so of 4 H. 6. And so he concluded, and insomuch that Warburton doubted of it, it was adjourned.

Trinity 10. Jacobi 1612. In the Common Bench. Yet Rowles against Mason, See before 57.

WINCH Justice argued that the Defendant is not guilty, and that the Plaintiff shall take nothing by his Writ, for he con∣ceived * 1.191 that the verdict is uncertaine, insomuch that it is not found that Livery and Seisin was made upon the Lease for three lives of the

Mannor, but onely one Memorandum, that it was made in the house of the Lord, but it is not found that this House was parcell of the Mannor, but after it is found that the Lessee by force of this was * 1.192 seised, by which it is implyed that it was very well executed, and this being in speciall verdict, would be very good, he conceived, there were two principall matters in the Case.

First, Upon the Bargaine and Sale of Trees, if they be re-united to the Mannor, or remaine undivided.

Secondly, Upon the two customes, the which he conceived depend upon a question, for the first warrants the second.

And to the first, When a man devises a Mannor for three lives, and by the same Deed in another clause, bargaines and sells the Trees, and then insues the Habendum, and this is of the Mannor only, and limits Estate of that for three lives without mention of the Trees, hee conceived that the Trees passe before the Habendum absolutely, and it is not like to a Bargaine and Sale of a Mannor with Trees, or Advowson appendant, and here the purpose and intent appeares, that they shall pass together and as appendant: But in the first case they shall passe as a Chattell immediately upon the delivery of the Deed before any livery made upon this to pass the Mannor, and if Livery had never been made, yet he shall have the Trees, see 23 Eliz. 379. 18 Dyer, Where a man devises and grants a mannor and trees, Habendum the Mannor for one and twenty yeares without mention of the Trees, and yet by Windham, Periam, and Meade, against Dyer, the Lessee cannot cut and sell the Trees, for there was all in one sentence, that is, the grant of the Trees and the Demise of the Mannor, see the 8 Coke Pexells Case, how a Grant shall be constru∣ed, and where that shall be intended to pass Inheritance, and where to pass but a Chattell, where a man grants a Chattell and ten pound yearly to be payd, and in 7 Ed. 4. If a man hath Inheritance and a Lease in one Town, and he by one and the same Deed, gives, Grants, Bargaines and sells all to one, Habendum, the Inheritance to him and his Heires, this is no forfeiture of the Lease, insomuch that the Fee doth not passe of that, so in the Principall Case, Fee-simple passeth in the Trees, and Free-hold in the Mannor, and he conceived that by the Demise over, the Land and Trees are not re-united, and this he collected out of Herlackendens Case 4. Coke and 12. Eliz. Bendlowes, a man made a Lease for anothers life, and bargaine and sold the Trees to him for whose life Lessee dyes, he for whose life becometh occupant of the Land, he shall have severall Estates, one Estate in the Land, and another Estate in the Trees, and so in Ives Case, 5 Coke 11. a. Lessee takes a Lease first of Land ex∣cept the woods, and after takes a Lease of the Woods and Trees, and they remaine distinct and though that after there are generall

words in the Lease, that is, of all Meadowes, Pastures, Profits, Commodities, &c. That is not materiall, for these shall be re∣ferred to all such things which belong to the Land, and so he con∣cluded this point, that the Trees remain severall from the Land, and do not passe to Hoskins by the Demise of the Copy-hold only, and so he cannot take advantage of the forfeiture, otherwise he did not doubt but that the particular Sum might take advantage of the forfeiture.

Secondly, for the customes, he conceived that the first, that is, that the Copy-holder for life might nominate his Successor, and is good, and so for the second, that such Copy-holder may cut and sell all the Trees growing upon his Copy-hold, and he conceived that the validity of the custome, ought to be adjudged by the Judges, and the Truth of that by the Jury, and when it is found true by a Jury, and that it hath such antiquity that exceeds the memory of man, then this obtaines such priviledge as the Prerogative of a Prince, and is part of Law, and stands with it, and this is reasonable custome, and so it hath been adjudged in the Kings Bench, the reason is, insomuch that the custome is the life of the Copy-hold, up∣on which that depends, and the party is but a Conduit to nominate the Tenant, and when he is nominated and admitted then he takes by the Lord, and that stands with the rules and reasons of the Common Law, that is, that a man devises that a marryed wife shall sell his Land, and she may sell notwithstanding the Cover∣ture, for she upon the matter nominates the party, and he takes by the Devise, and by this reason, she may sell to her Husband as it is agreed by the 8 of Assises. And also by devise that Executor shall sell, Executor of Executor may sell, notwithstanding that he is not in Esse at the time of the Devise, and so a Lease for life to one, Re∣mainder to him that J. S. shall nominate is good after nomination, and then he takes by the first Livery, as it is agreed in 10 H. 7. and J. S. Only hath the nomination, and nothing passes to him, and with this also agrees 43 Ed. 3. 19 H. 7. So if a man makes a Feoffment to the use of himself for life, with diverse Remainders over, and power to himself to make Leases for three lives, this is good, as it is agreed in Mildmayes Case and Whitlocks Case, 8 Coke, and yet the Estate doth not passe from him but out of all the Estates, and he upon the matter hath only the nomination of the Lessee, and of the lives, for all the estates apply their forces to make that good, and the 2 El. Dyer 192. 23. Custome that the Wife of the Copy-holder for life shall have her Widdows Estate, is allowed to be a good custome, and there an Estate for life upon the matter is raised out of the estate for life, and annexed to it, and this is by the Custome, and the rea∣son he conceived to be for that that Women should be incouraged

to marry with their Tenants, and by that the marriage with the Te∣nant, and the custome in this Case doth bind the Lord, and so 4 Coke, there are divers customes by which the Lord is bound, and the 8 Coke Swaines Case, where the Copy-holder by custome hath the Trees, in Case where the Lord himself hath them not, so if the Lord sell the Waste, yet the Copy-holder shall not loose his Com∣mon in that, notwithstanding that the Estate of the Copy-holder be granted after the Wast is severed from the Mannor, and it is a∣greed in Waggoners Case 8 Coke, that custome is more available then the Common Law: And for that this cnse hath been adjudged in this point between Crab and Varney by three or four Judges, he would not further question it. And for the second custome, he agreed that one bare Tenant for life, could not meddle with the Sale or falling of the Trees, but here is a Copy-holder for life which hath Aut ori∣ty given by the Lord, and the Custome to dispose the Trees; and he saith that Bracton and the old Laws of England calls Copy-holders Falkland, and saith they cannot be moved, but in the hands of * 1.193 the Lord they ought to surrender, and agreed that this is within the Rules of the Common Law, for Consuetudo privat communem legem and the Law doth nor give reason of that, for this is as a ground, and need not to be proved, for the reason of every custome cannot be shewed, as it was sayd in Knightly and Spencers Case, and he sayd, that Mannors are divided into three sorts of Tenures.

The first holds by Knights Service, and this is for the defence of the Lord, and they have a great number of Acres of Land, and pay less Services.

The second holds by Socage, and this for to plow and manure the Demesnes of the Lord, and they shall pay no Rent nor do other services, and this was at the first to draw such Tenants to inhabit there, and for that they have Authority to dispose and sell the Trees growing upon theit Tenements.

The third, holds by base Tenure, and these were at the Will of the Lord, and these were to do Services, and then these in many Ca∣ses have liberty for their Wives in some cases to dispose that for ano∣ther life, and to dispose the Trees, and so it is in Ireland at this day, where some give more and greater priviledge then others, to in∣duce Tenants to inhabite and manure their Land, for there every day is a complaint made to the Councell for inticing the Tenants of the Lord, and 14 Ed. 3. Bar 277. The Tenant preseribes to have the Wind∣falls, and if the Lord cut the Trees, that he may have the Lops, and 11 H. 6. 2. The Keeper of the Wood prescribes to have Fee, and 46 Ed. 3. is prescription to stint the Lord in his own Soyl, and all these are for the Incouragement of Tenants to inhabit upon the Land, and time of Ed. 1. Prescription 75. A stranger prescribed to have all the

profit of the Land of another, for a great part of the yeare, and to ex∣clude the giver of the Soyl, & 6 Ja. It was adjudged in the Kings Bench between Henrick and Pargiter, that the Lord may be stinsted for Common in his own Laud, and in the Book of Entries 563. It appears that by Custome Copy-hold granted, Sibi & suis, was a good Fee-simple, and the reason of all this is shewed in the 4. Coke, amongst his Copy-hold Cases, where it is agreed that the Life of a Copy-hold Estate is the customes, and then if the Custome gives life to the Estate, this gives life also to all the Priviledges which are incident to the Estate, and the Lord is but the means to convey the Estate from one to another, and as in 38 Ed. 3. A man hath a House as Heir to his Mother, and after a stranger grants Estovers to him and his Heirs to be burnt in the same House, these Estovers shall go to the Heirs of the Mother, insomuch that they are incident to the House, so of Priviledg incident to a Copy-hold Estate by the Custome, and at the Common Law, if Tenant for life hath cut the Trees, he: hath not forfeited his Estate, for he was trusted with the Land, and was not punishable till the Statute of Glocester, and at this day if there be a mesne Remainder for life which remains in Contingency, and that shall prevent that the Tenant shal be punished for this waste, and to make innovation of this custome, will be dangerous, and for that he concluded that the Plaintiff shall be barred.

Warburton Justice agreed: And the first Custome, that is, for * 1.194 the nomination of the Successor, he conceived that it is good, and that it is good by the Common Law, and good by Custome by the Common Law, as a Lease for life, remainder to him which the Tenant for life shall name: So by Custome as the Custome, that if a Copy-holder will sell his Copy-hold Estate, that he which is next of blood to him shall have the refusall, and if none of his blood, then he which Inhabits in the neerest part of the part of the ground shall have it before a stranger, giving for that as much as a stran∣ger would, and the Lord shall have him for his Tenant, whether he will or no, for it shall be intended, that so it was agreed at the first, and it is reasonable; and if it had not been ruled and ad∣judged before, yet he conceived it might now be a rule and ad∣judged, insomuch that it is so reasonable and good, and for the se∣cond custome, that is for the custome of cutting of Trees, by such Copy-holder which hath such priviledge, he conceived also that it was good: But he agreed that a bare Tenant for life cannot be warranted by custome to do such an Act, as it was here adjudged be∣tween Powell and Peacock: But here he had a greater Estate then for life, for he hath power to make another Estate for life, and shall have as great priviledge as Tenant after possibility, &c. which is in respect of Inheritance which once was in him, and he may do it

for the possibility which he hath to give to another Estate, as it is agreed in 2. Ed. 4. that a Lease fo a hundred yeares is Mortmain, in respect of the continuance of it, so here, for the Estate may continue by such power of nomination for many lives in perpe∣tuity, and that as when at the Common Law they have in re∣putation and opinion of Law a greater Estate, may cut and sell Trees, so here insomuch that the Estate comes so neere to Inheritance, he conceived that he might cut the Trees by the custome, and that the Custome is good; and so he concluded, that Judgement should be given, that the Plaintiff should be barred in respect of Customes; and then to the third, that is, when a man lets Land, and by the same Deed, grants the Trees to be cut at the will and pleasure of the grantee, there the Lessee hath distinct Interest: But if the Les∣sor by one selfe same clause had demised the Land and the Trees, there the Intendment is: But notwithstanding that there are seve∣rall clauses, and that he hath distinct Interests, yet he conceiveth that the Trees remaine parcell of the Inheritance and free-hold till they are cut and are severed only in Interest, that is, that may be felled and devided by the Axe, for Tythes shall not be paid for them if they exceed the growth of twenty yeares, not it shall not be Felony for to cut those and burn them: And it is not like to an Advowson, for that may be severed, and for that he conceived that if the Custome had not warranted the Cutting and Selling, that the Copy-holder had forfeited his Estate, and that the Lord might very well have taken advantage of it, and 29. assis. 29. A man sells Trees to be cut at Michaelmasse insuing, and before Michaelmasse Haukes breed in them, the seller shall have them, by which it appeares that the property is not altered: So that though they are not parcell of the Mannor, yet they are parcell of the Free-hold, insomuch that they are not severed in Facto: And he agreed that Lessee for yeares of a Mannor shall take advantage of Forfeiture, and need not any presentment by the Homage, and Lit∣tleton fol. 15, saith, that the Lord may enter as in a thing Forfeited unto him; and so for attainder of Felony: And if a Copy-holder makes a Lease for yeares, by which he forfeits his Copy-hold E∣state: And after the Lord grants the Mannor for yeares, the Lessee of the Mannor shal take advantage of this Forfeiture made before he had any Estate in the Mannor without any presentment by the Ho∣mage: But here in this case the Custome warrants the cutting of the Trees by the Copy-holder, and for that he concluded all the matter as above, that the Plaintiff should take nothing by his Writ.

Coke cheife Justice agreed, and he said that Fortescue and Little∣ton, * 1.195

and all others agreed, that the Common Law consists of three parts.

First Common Law.

Secondly Statute Law, which corrects, abridges, and exp'aines the Common Law: The third Custome which takes away the Common Law: But the Common Law Corrects, Allows, and Disallows, both Statute Law, and Custome, for if there be repugnancy in Statute; or unreasonablenesse in Custome, the Common Law Disallowes and rejects it, as it appeares by Doctor Bonhams Case, and 8 Coke, 27. H. 6, Annuity: And he conceived that there are five differences be∣tween Prescription and a Custome: And all those as pertenent to this cause.

First in the beginning, Pugnant ex Diametro, for nothing may be good by prescription, but that which may have beginning by grant, and also prescription is incident to the Person, and Custome to some place, and holds place in many Cases, which cannot be by grant; as in 11, H. 4. Lands may be devised by Custome, and so discent to all the Sons, as in Gavelkind, and to the youngest Son in Eurrough English, and others like, which cannot have their be∣ginning by Grant, but prescription and Custome are Brothers, and ought to have the same age, and reason ought to be the Father. and Congruence the Mother, and use the Nurse, and time out of memory to Fortifie them both.

Secondly they vary in quality, for prescription is for one man only, and Custome is for many, if all but one be not dead.

Thirdly they vary in extent and latitude, for prescription extends to Fee-simple only, but Custome extends to all Interests and E∣states whatsoever, as appeares by pleading, for Tenant in tayl, for life or yeares cannot prescribe in what Estate, nor against the Lord in his Demesnes, but they ought to alledge the Custome, and against a stranger they ought to prescribe in the name of the Lord, and for that prescription b. Copy-holder of Inheritance may sell the Trees, is not good, but such Custome is good, and 5. Ed. 3. 24. And the old Reports 196. One Tenant being a Free-holder prescribes to have Windfalls, and all Trees-which are withered in the Top and if the Lord makes them in Cole, to have so much in mo∣ney: And so if they sell, and this for Sale, and this was not-good, insomuch that it is alledged in the person as prescription, but if it had been alledged as Custome, and to be burnt in his house, then it shall be good as appendant, and 14. Ed. 3. Barr 227. Wilby saith to be adjudged that prescription to have Turbary to be burnt in his house is good, but not to sell; and 11. H. 6. 17. accordingly, by which it appeares that this may be very well by Custome, and can∣not be by prescription.

Thirdly he conceived that where a man may create an Estate with∣out nomination, there he may create that by nomination: And also that which may be done by the Common Law, m•••• be done by Custome, and that an Estate may be created by such nomination, it appeares by the case, where a Remainder is Limited to him, which the first Tenant for life shall nominate, and it is very good, and to prove that the Custome is good, he remembred the custome of Millam in Norfolke, where he was borne, that is, that if any Copy-holder will sell his Land and agree of the price, that at the next Court when a surrender is to be made, the next of his blood, and if he will not any other of his blood may have the Land, and so every one shall be preferred according to the neerenesse of his blood, and with this also agreed the Leviticall Law, as it appeares, Leviticus 25. chap. verse 15. which appoints this to be at the yeare of Jubile, and the Common Law within one yeare after the Alienation, and upon this he infers, that if Custome may appoint Heire in the life of the party, then a Fortiore, he may appoint Successor after his death, and he conceived that at the beginning, the Copy-holders might have had absolute Fee-simple of the Lord, and they rather made choice to have such Estate, insomuch that they did not know, if their Children would be towardly or not, and for that content themselves with the nomination of a Successor only, and so is the Custome at Hamm also in Middlesex, if any Copy-holder will sell, the next Cleivener, which is he that dwelleth next unto him, shall have the refusall, giving so much as another will, and he which Inhabits one the East part first, and the South and the West, and last the North shall be preferred, is the only way in his course, and there the Successor is nominated by the Heavens, and by the quarters of the Earth, and so is the custome in Glocester: And if any Husband hath an Estate for twelve yeares, his Wife shall have it for twelve years also, and so ad Infinitum, and this makes nomination, and so of Free-hold, and so if it be good without nomination, it shall be good by nomination: And if the Estate determine by the Death of the Tenant, without nomination when the Lord revives the Copy-hold Estates, the priviledge also shall be revived: But he concei∣ved that the Tenant cannot nominate part to one and part to ano∣ther, nor that divided in fractions: And he saith that this point hath been adjudged in the Kings Bench by foure Judges against Popham 5. Jacobi between Ball and Crabb: And so he concluded this point, and to the second custome he said, he would speake to that Transitive, but not Definitve, and that it hath been adjudged 45. Eliz. between Powell and Peacock that bare Copy holder for life, could not prescribe to cut and ••ell the Trees, otherwise of Tenant in Fee-simple, for he hath them cherished and fostered: And it is

against common reason, incongruent and against the Common Law, that a Copy-holder for life may cut and sell the Trees, and custome ought to have reason and congruence, for 10. Ed. 3. 5. Leete can∣not be belonging to a Church, insomuch that it is Incongruent, and so in Writes Case 2. Coke Tythes cannot be appurtenant to a Man∣nor, insomuch that it is incongruent; and a spirituall thing shall not be pertinent to a temporall, and so è Converso: And so in the 5. Assis. 9. and Hill and Granges Case, Com. Turbary cannon be appur∣tenant to Land, insomuch that it is incongruent, but it ought to be to a house; so in time of Ed. 2. Tenant of the Mannor prescribes to have free Bull and Bare, and it is not good for the reason afore∣said, otherwise it is of the Lord of a Mannor, and 9 H. 5. 45. custome in Leete to present common, and adjudged that it it is not good, insouuch that it wants congruity, for it is not proper to the Court, and upon this he concluded that bare Tenant for life cannot prescribe to cut Trees, for it is not congruent that such an Estate shall have such a priviledge, and this for three reasons.

First insomuch that Trees growing are parcell of the Inheri∣tance.

Secondly in respect of the perdurablenesse of them, for it shall be intended that they will indure forever, and so will not his Estate, for this is as a shadow as Job said, and 'tis absurd that shadow should cut downe the Tree: And also it is for necessity of habita∣tion and Plow and Husbandry: And it is for the Common Wealth, that Copy-holder of Inheritanc might cut them by such custome, for otherwise he would not be incurraged, to plant and preserve them: And notwithstanding that in this Case the custome be gene∣rall, that the Copy-holder may cut down all, yet that shall have a reasonable construction, avd that this notwithstanding he leave suf∣ficient for House-boot; as if a man grants Common without number, yet the Grantor shall not be excluded, but shall have his Common there, for excesse shall not be allowed.

As if a man which distraines another for Rent he shall not take ex∣cessive distress, the Lessee for life excessive Tallage of villaines, nor upon excessive Fines of Copy-holders, and so it was adjudged in Heyden and Sir John Lenthorps Case, that the Lord shall not take all; but leave sufficient for reparations, and so was the opinion of Wray cheife Justice in the 33 of Eliz., In evidence to a Jury, but here he is in nature of Tenant in Fee-simple, and it shall be intended that he hath cherished the Timber, and every Copy-holders Estate granted is as a new Grant, and hath affinity with Tenant in Fee-sim∣ple, and he agreed that if Lessee for life, the Remainder for years, Remainder for life be, and the first Lessee for life makes a forfeiture, he in Remainder for years shall take advantage of that, and that it

hath been adjudged; that the Lord of the Mannor shall take advan∣tage of forfeiture made by the Copy-holder, without presentment made by the Homage, and in one Bacon and Flotsims Case, and so Lessee for yeares of a Mannor shall take advantage of Forfeiture, not∣withstanding the Imbicillity of his Estate, but the principall matter upon which he relyed was, that the Trees were severed from the Free-hold, and if the Lessee dy, his Executors shall have them, insomuch that they are meer Chattells, and this.

First in respect of the Words of the Lease, that is, demise, and to farm let the Mannor, but bargain, sell, give, and grant the Timber Trees to be felled and carried away at his Will: As if a man makes a Lease for years, except the Wood, and after grants the Trees, the Lease determines, the Lessor shall not have the Trees again.

Secondly, They are in two divided Sentences, and also in respect of divided properties, for the Executor of the Lessee shall have them; and Quando duo Jura, concurrunt in una persona, equum est ac si esset in diversis, also past at severall times, for the Trees pass by the delivery of the Deed, and the Land doth not pass till Livery and Seisin be made. Also the intent of the parties is not that they shall pass together, for if the intent were otherwise the Law would not devide them, as it was adjudged Hillary 15. Eliz. in the Lord Cromwells case, where Tenant in Tayl was of a Mannor, with the Reversion to his right Heirs, and he by his Deed gives and grants the Mannor, and the Reversion of that, and includes Letter of Attor∣ney within the Deed to make Livery, but Livery was not made, and yet the Reversion doth not pass, for his intent appeares that it should pass by Livery and Seisin, and not by grant; and also in Androwes case, the Advowson appendant to a Mannor shall not pass without inrolment of Bargaine and Sale, yet there were words there, that that might passe by Grant, for this was against their intent, otherwise if a man makes a Lease for life or years of a Mannor, and grants the Inheritance of the Advowson by the same Deed, and so of the case of 23 Eliz. Dyer 374. Lessor deviseth, Grants, and to farm lets the Mannor and the Trees, and they passe joyntly; and the Reason is insomuch that it is but a Joynt sentence, and not seve∣rall as it is here, also he intended, that the life of the Lessee for life is not averred, and for that he shall be intended to be dead, and for that it is a severall grant of the Trees of the Free-hold, for the Interest of them is setled in his Executors, for if he had made Sale of them before that the Copy-holder had cut them down, then that had not been forfeiture, see 5. H. 7. 15 Ed. 4. 14 Eliz. Dyer And then the Case is this, Tenant for anothers life of a Mannor, makes a Lease for yeares of the Free-hold, of which an Estranger hath a Copy-hold Estate for life in Esse, Lessee dies,

and he conceived that the Copy-holder shall not be an occupant, for it ought to be Vacua Possessio, and this was the reason of the judg∣ment in Adams Case in 18 Eliz. Where a man makes a long Lease for years, and after intending to avoyd this Lease, makes a Lease to ano∣ther old man for anothers life, to the intent that the Lessee for yeares should be occupant, when the old Lessee died, and so drowned his Tearm, and after the Lessee died, and resolved that the Lessee for years shall not be an occupant, insomuch that there was not Vacua Possessio, and for this it seems to him that if Lessee for anothers life, makes a Lease for years and dyes, that the Lessee for yeares shall not be an occupant, notwithstanding that he made speciall claim, and that for the reason aforesaid, but he agreed that a Lessee for anothers life makes a Lease at will and dies, there the Lessee at Will shall be an Occupant, insomuch that his Estate is de∣termined, and yet there is not Vacua Possessio, according to 38 H. 6. 27. But he did not say there should be an occupant in these cases, but cyted Bracton fol. 8. that if the Sea leave an Island in the midst of that, the King shall have it, and not Occupanti conceditur, and so * 1.196 he concluded that the Plaintiff shall be barred, and that Judgment shall be entred for the Defendant, which was done accordingly, and it was afterwards agreed, upon motion in this case, whether it would not make difference if the Trees were cut by the Copy-holder before that he hath made his nomination or not, notwithstanding it was objected, that when he hath made his nomination, then he was only bare Tenant for life, and the Priviledge executed, and he in Remainder was also Tenant for life only, for he cannot nomi∣nate till he comes to be Tenant in possession, but this notwithstan∣ding, insomuch that they had power to make nomination, that is the first Tenant again, if the second died in his life time, and the second if the first died in his life time, and so the Peiviledge conti∣nues, all the Justices continued of their opinions, and according to that Judgment was entred for the Defendant, and that the Plaintiff should be barred, and should take nothing by his Writ.

Trinity 8. Jacobi 1610. in the Kings Bench. The Lord Rich against Franke.

THE Lord Rich brought an action of Debt against Franke Admi∣nistrator * 1.197 of one Franke, and this was for a rent reserved upon a Lease for yeares, made to the Intestate, and the Action was brought in the Debet and Detinet, for rent due in the time of the Administrator, and verdict for the Plaintiff, and after moved in

Arrest of Judgement by the Councell of the Defendant, that this Action ought to be brought in the Detinet only, and not in the De∣bet and Detinet; and Chibborn of Lincolnes Inne conceived that the * 1.198 Action was well brought in the Debet and Detinet, and to that he sayd that Hargraves case 5 Coke is so reported to be adjudged, but he saith that he hath heard the councell of the other part insisted upon that, that this Judgment was reversed, and for that he would under favour of the Court speake to that. And hee concei∣ved that the Action so brought, is well brought; for three Rea∣sons.

The first shall be drawn from the nature of the Duty, and to that the Case rests upon this doubt, that is, if the Administrator is now charged for this Rent, as upon his own duty, or as Administra∣tor, and it seems to him not as Administrator, but as upon his own duty, for he saith, that it is not Debt nor duty till the day of pay∣ment, as Littleton takes the diversity in his Chapter of Release, be∣tween Debt upon an obligation and a Rent, and the day not being incurred in time of the Intestate, this cannot be his duty, there∣fore that ought to be duty in the Administrator, and to the cases of 19 H. 8. 8. Where the Executor of a Lessee for twenty years, which had made a Lease for ten years rendring Rent, brought action of Debt against the Lessee for ten years, for rent incurred in the time of the Executor, and this is in the Detinet only, and the Case of 20 H. * 1.199 6. 4. Where an Executor brings an action of Debt upon Arrerages of Account of an Assignement of Auditors by themselves in the Detinet only, and he sayd that in these Actions, the Executors were Plain∣tiffs, and in all actions brought by Executors where they are Plain∣tiffs, and the thing recovered shall be Asset, the Action shall be brought in the Detinet, but in our case they are Defendants, and so the diversity, and to the Objection, that may be made to this Contract out of which this duty grows and arises, it was made by the Intestate, and not by the Administrator himself, and so this is a duty upon the first Privity of the contract, he answered that there is great difference, when a thing comes due by the Contract of the Testator alone, and ought to be payed in his time, in which the Executors are to be char••ed meerly as Executors, there the Writ shall be in the Detinet, but when the thing grows due in part upon the contract of the Intestate, and part by the Occupation of the Ad∣ministrator, as in our case, there it shall be brought in the Debet and Detinet, & he cited a Case which was adjudged 26 El. in the Common bench between Scrogs & the Lady Gresham, where it was resolved that the Lady Gresham, was made chargeable to the Debts of her Husband by act of Parliament, and Action of Debt brought against her in the Debet and Detinet, and debated if this were well brought, and after

Argument, adjudged that it was well brought in the Debet and Deti∣net, for though she was not chargeable for the Debts of her Hus∣band, upon his own Contract, yet where an act of Parliament hath made her chargeable, and a Debtor, and for that reason the Action shall be brought against her in the Debet and Detinet, and to the princi∣pal case he cited the Case of 11 H. 6. 7. Where it it said by Babington & Newton that if a man be Lessee for years, and is in arrears for his Rent, and makes his Executors and dyes, and the Executors enter into the Land and occupy, in this case for the Arrerages due in time of the Testator, Action shall be brought against them in the Detinet, but for Rent due in their own occupation, the action shal be brought in the Debet and Detinet, for that it rises upon their own occupation, and with this agrees 20 H. 6. 4. And he sayd that he would demand this case of the Councell of the other part, that is, a man hath a Lease for yeares as Administrator, and Rent incurrs in his time, and he makse his Executors and dyes, and Administration of the Goods of the Intestate is committed over to another, against whom shall the Action be brought for the Rent, that is, against the Executors of the first Administrator, or against the second Admini∣strator: and it seems cleerly to him, against the Executors of the first Administrator, for their Testator had taken the profits, which case proves that they shall not be charged meerly as Executors or Administrators, but as takers of the profits, &c. And Occupiers of the land.

And this was his second reason of the nature of Profits, insomuch that they were raised by the personall labour of the Executor or Admi∣strator, * 1.200 and are their Goods, as he sayd, and they have them not meerly as Executors or Administrators, and for that the Action is well brought as it is, and he sayd, that the Heir for Debt of the Father shall be charged in the Debet and Detinet, and yet this was the contract of his Father, but he is charged in respect that he hath * 1.201 the land, and the occupation and profits of that, so here insomuch that the Executors have the profit of the Tearm, by the same reason they shall be charged in the Debet and Detinet, and he resembled the case to a case put in Fitz. Na. Br•…•… In his Writ of Debt, where a wo∣man sole hath a lease for years, and takes a Husband, and the Rent incurrs, and the wife dies, the Husband shall be charged in the De∣bet and Detinet for this rent, and the reason is, because he hath ta∣ken the profits, so here the Administrator hath taken the profits; and is not answerable for the Profits, unless they amount to more then the rent is. And by the same reason the action is well brought against him as it is.

The third and last reason, was for the Inconveniency; and to * 1.202 that he sayd, if this Action be brought in the Debet and Detinet,

there is no inconvenience, but if it should be brought in the Detinet only, then should the Administrator be charged but of the Goods of the dead, where if he be not charged of his own proper Goods, per∣adventure he shall not be so carefull to pay his rent; but would stop the Lessor in his Action, which should be trouble and vexation, and so by this reason also he concluded the Action well brought in the Debet and Detinet, and this was gaynsayd by Towse, George Crooke, * 1.203 and Harris of the other part, and it seems to them that it should be in the Detinet only, insomuch that the cause of this Action growes of the contract of the Testator, and the Tearm is Assets in their hands, and the Administrator hath the Tearm as Administrator, and by the same reason the Occupation shall be as Administration: and by consequence he shall be charged as Administrator, and not other∣wise, and then the Action shall be brought against him in the Deti∣net only, and that he shall be charged as Administrator they cited the Book of 14 H. 4. 28. Where it is sayd, if a man hath a lease for years and makes his Executors, and the rent incurrs in their time, and action of Debt is brought against them, and they make default, he which first 〈◊〉〈◊〉 all come by distress shall answer according to the Sta∣tute of 9 Ed. 3. chapter 5. which Book proves directly as they say, that they are charged as Executors, and not otherwise, and then it followes that the Action should be in the Detinet, so it seems to them that in all Actions, where they are named Executors or Admi∣nistrators, that the Action shall be brought against them in the Detinet only, but in this action they ought to be named Executors or Ad∣ministrators, for he doth declare of a lease made to the Intestate, and for that it seems it shall be brought in the Detinet only, and this was the reason of Yelverton Justice, which was of their opinion on∣ly against the other Justices, and to that which was sayd that an A∣ction shall be brought against the Heir in the Debet and Detinet for the Debt of his Ancestor they answered, that this is now become the proper Debt of the Heir, but it is not so in the case of an Executor or Administrator.

And it seems to Towse, that if an Administrator hath a Lease for twenty yeares, and makes a Lease for ten yeares rendring Rent, and brings an Action for this Rent, that the Action shall be brought in the Detinet only, for that this is a new contract made by the Ad∣ministrator, and he hath gained new Reversion, because it was derived out of the Lease for twenty yeares, and so this shall be of the same nature, and the Rent shall be Assets in his hands, and in proofe of this he cited the book in 17. Ed. 3. 66. Where an Exe∣cutor sold the Goods of the Testator, and the Vendee made an Ob∣ligation to them for the money, and the Executors brought an Action of Debt upon the Obligation; and this was brought in the

Detinet only: And the exception was taken, because it was du∣ty of their owne contract, and for that the Writ should be in the Debet and Detinet, and yet the Writ awarded good, because it comes in Lieu of Goods which they had as Executors, and shall be As∣sets in their hands as the Goods should have been, and for that it is well brought in the Detinet only: And they said that in the prin∣cipall case it shall be mischeivous if the Action shall be brought in the Debet and Detinet, for it may be the Rent reserved, is of more worth then the Profits of the Land will amount unto, and that the Executors or Administrators have no other Assets, now shall be the Executor or Administrator be charged with his own proper Goods, which shall be mischeivous, and the case of 10. H. 7. 5. and 6. that is direct in the point was often times cited, and all these three things which were of councell with the Defendant, informed the Court that they were of Councell with Hargrave when the Judgement given in the Kings Bench was reversed for Error in this very point, and for this cause, because the Action was brought in the Debet and Detinet, where it should be in the Detinet only: And so they praied that the Judgement should be hindered: But by the whole Court except Yelverton: And so it was adjudged, that the Action was well brought as it is, and especially for the reasons given in Hargraves Case 5. Coke 31. And to that which hath been said by Yelverton Justice, that in all cases where Executors are charged by the name of Executors or Administrators, that there the Action shall be against them in the Detinet only: Flem∣ming cheife Justice answered, that ••rue it is in all personall things, where they are named as Executors, Action shall be in the Detinet: But as it is an Action of Debt for Rent reserved upon a Chattell reall, and an Executor is as an Assignee in Law, and so charged as privy in Estate, and not meerely as Executor, and if he have no more Assets then the Rent, which he is to pay, he may plead nothing in his hands against all the World, and to that, that hath been said, that the Executor hath been charged of his own Goods: If the profits be not more then the Rent, or the Rent more then the profits, to this he said that in this case where the Execu∣tor hath the Tearme, and hath not any other Assets, that they may wave this Tearme: And in Action of Debt brought against him for the Rent may plead to the occupation, and that recover: The reason of the diversity between this case and the case of 28. H. 8. Dyer 14. is plain, for in an Action of Debt against the Termor him∣selfe; Non habuit nec occupavit, is no Plea, for there was a contract between them, and for this privity of contract is the Lessee charged, though he did not occupy: But in the case of an Executor the pri∣vity of the contract is gone, and so may be a difference: But yet it

seemes if he have Assets sufficient to pay the Rent he cannot wave it: And to the case 14. H. 4. 28. that hath been cited that doth speake nothing, how the Action should be brought: And the Justices have seen the record of Hargraves case, and the Reversall of that: And they said the same error which was in Hargraves case, is in this case, and for that bring your Writ of Error in the Exche∣quer chamber if you will, for we so adjudge: And then it was mo∣ved that the Lord Rich was Tenant in Tayle, of part of the rever∣sion, and Tenant in Fee-simple of the other part, and so it seemes that he ought to have two Actions, because he hath as two rever∣sions: But it was resolved by all the Court, that if a man have a reversion of part in Fee-simple, and of the other part in tayl, and makes a Lease for yeares rendring a Rent, he shall have but one Action, both being in the hands of one: But otherwise it had been if the reversion had been in severall hands they should not Joyne in Debt, and for that Fenner put this case; two Coparceners are of a reversion and they make partition, now the Rent is apportioned, and they shall sever in Debt: But if one dies without Issue, and the part discends to the other Parcener, now he shall have but one Action of Debt againe, and so it is if a man makes a Lease of two Acres rendring Rent, and after grants the reversion of one Acre to J. S. and of the other Acre to J. N. now they shall sever in Debt for this Rent, but if J. S. and J. N. Grant their reversions againe to the first Lessor, he shall have but one Action of Debt, and so the ex∣ception dissalowed by all the Court, and the Judgement given for the Plaintiff, according to the Verdict.

Yates and Rolles.

THe case was this, J. S. covenants by Indenture with J. N. I. D. * 1.204 and A. B. to enter Bond to pay ten pound to J. N. and J. N. dies, and his Administrator brings a Writ of covenant, and the question was insomuch that this ten pound was to be paid to J. N. if his Administrator shall have Action of Covenant, or if the Acti∣on shall survive to the other two, and it was moved by Stephens, that the Action shall be well brought by the Administrator, for this shall be taken as a severall covenant, and this now is in nature of a Debt, and enures only to him which shall have it, also the pay∣ment of the money which is the effect of the covenant shall be to him only, Ergo the Damages for the not performing of it shall goe to him also, and by consequence to his Administrator: But it was adjudged insomuch that this was a joynt covenant, that this shall survive to the others, and not well brought by the Administrator: So also resolved that insomuch that the words are, that he would

enter Bond, and doth not say to whom, that this shall be intended to the Covenantees, and though that the Solvendo is but to one of them, yet that is very good, as an Obligation made to three Sol∣vendum to one of them is good, by Fenner and by Williams, Obli∣gation to two, Solvendum ten pound to one, and ten pound to another, both ought to joyne in Debt upon this Obligation, and Judgement for the Defendant.

Sammer and Force.

THe Case was this, The Lord of a Copy-hold Mannor where Copy holders are for life, grants Rent-charge out of all the * 1.205 Mannor; one Copy-hold Escheats, the Lord grants that againe by Copy; the question was, If the Grantee shall hold it charged or not; and by the whole Court but Fenner, he shall not hold it charged, because he comes in above the Grant; that is By the custome; the same Law of Statutes, Recognizances, or Dowers; but the 10. of Eliz. Dyer 270. by the whole Court, that he shall hold it charged; but this hath been denyed for Law in a Case in the Common Bench, between Swaine and Becket, which see Trinity 5. Jacobi: But to Coke Justice it seemed, that if a Copy-holder be of twenty Acres, and the Lord grants Rent out of those twenty Acres, in the tenure and occupation of the sayd Copy-holder (and name him) There if this Copy hold Escheat, and be granted againe, the Copy-holder shall hold it charged, for this is now charged by expresse words.

Trinity 8. Jacobi, 1610. In the Kings Bench. Goodyer and Ince.

GOodyer was Plaintiff in a Writ of Error against Ince, and the Case was this, Ince brought an Action of Debt upon an Obli∣gation * 1.206 in the Common Bench against Goodyer, and had Judgment to * 1.207 recover, and by his execution prayed an Elegit to the Sheriff of Lon∣don, and another to the Sheriff of Lancaster, and his request was granted, and entred upon the Roll, after which went out an Elegit to the Sheriff of Lancaster upon a Testatum, supposing that an Ele∣git issued out to the Sheriff of London, which returned Nulla bona, and Quod Testatum sit, &c. That the Defendant hath, &c. in your County, &c. upon which Elegit upon this Testatum, the Sheriff of Lancaster extended a forme of the Defendants in a grosse sum of a hundred pounds, and delivered this to the party himselfe, which sold that to another; and now the Defendants brought a Writ of Error, and assigned for Error, that this Elegit issued upon a Testa∣tum,

where no Writ of Elegit was directed to the Sheriff of London, and so this Writ issued upon a false supposall, and upon that two * 1.208 points were moved in the Case:

First, As this Case is, if this were Error in the Execution or not.

Secondly, Admit that it were Error, if the Plaintiff shall be resto∣red to the tearme againe, or if to the value in Money; and it was moved by Davenport of Grayes Inne, that this was no Error; and to that he took this difference, That true it is, when a man brings an Action of Debt in London and hath Judgment, that without request of the Plaintiff he is to have his Elegit to the Sheriffs of London, where originally the Action was brought; and in such Case he can∣not have Elegit to the Sheriff of another County, without surmise made upon the returne of the first Elegit, and the surmise ought to be true, or otherwise it is Error; but where upon the request the Elegit is granted to both Counties at the first, and so entred upon the Roll: It seems to him that insomuch that he may have both to∣gether, that if the surmise be false, that this is but a fault of the Clarke, which shall be amended, and shall be no Error; and to that he cyted the Case of 44 Edw. 3. 10. Where an Elegit issued upon a Recognizance of a hundred Markes, and the Writ of Extent was a hundred pounds, and the Sheriff extended accordingly of the Land of the Defendant, and he came and shewed this to the Court, and praied that the Writ should abate, and a new Writ to the Sheriff, that he might have restitution of his Tearme, and Thorp said this is but a misprison of the Clark, and the Roll is good, and he shall have the Land, but till the hundred markes are Levied, and after this you shall have restitution of the Land, which case proves as he conceives, that if the Roll warrant a writ in one man∣ner, and the Clark makes it in another manner, that this shall not be Error, and so in this case the Roll warrants an Elegit originally to the Sheriff of Lancaster, and though that this is made upon a Testa∣tum, this shall not be Error, because warranted by the Roll: And to the second point he would not speake, for if that were no Er∣ror, the second point doth not come in question.

Hillary 7. Jacobi 1609. in the Kings Bench. Marsam against Hunter.

IN Trespasse the case was this, Copy-holder of a Mannor, with∣in * 1.209 which Mannor, the custome was that the Copy-holders should have Common in the wast of the Lord: The Lord by Deed confirmes to a Copy-holder to have to him and his Heires with the appurtenances, and the point was insomuch that his Copy-hold

was now distroied, whether he shall have his Common or not: And Davyes of Linclones Inne, argued the Common is extinct, and his reason was, that this Common was in respect of his Tenure and the Tenure is distroid, Ergo the Common, and he cited the case of 5 Ed. 4. fol. ult. Where the office of the King of Herraulds was gran∣ted to Garter with the Fees and profits, Ab Antiquo, and also ten pound for the office, and there it is resolved if the office be deter∣mined, the Annuity is determined also, and the case in 7. Ed. 4. 22. b. Where an Annuity was granted to John Clark of the Crown, and for Tearme of life, and after he was discharged of the office, and the oppinion of the Justices then was, that the annuity was determined, and in 19. Ed. 3. Assis. 83. 12 Assis. 22. A man gives Land to his Daughter and I. S. within the years of marrying, in frank-marriage, the Husband sues Divorce, the marriage being dissolved, the Wife from whom the Land first moved shall have the Land againe, so in the principall case, insomuch that this common was in respect of Tenure, the Tenure being distroied, the common is gone, and this was all his argument, and he pray∣ed Judgement for the Plaintiff, and another day Brautingham of Grayes Inne seemed that the common remaines for three reasons.

First of the nature of a prescription, and to that there are three manner of prescriptions.

First personall prescription, and in that Inhabitants may prescribe, as for a way or matter of ease, as it is said in 7. Ed. 4. 15. Ed. 4. and 18. Ed. 4. and 6. Coke, Gatwoods case.

Secondly reall prescription, and this is Inherent to the Estate, and this is where a man prescribeth that he and all those whose Estate he hath, &c. Thirdly, locall prescriptions an that is, where a man prescribes to have a thing appendant or appurtenant to his Mannor, and this is so fixed to the Land, that whether soever the Land goes, the prescription is concommitant unto it, and it seemes to him that this common is annexed to the Land by prescription and so locall, and cannot be seperated but alwaies shall go with the Land, into who soever hands that comes, (but Dixit non Probant:) And for this he supposed that the custome of Copy-hold is that the Copy-hold shall discend to the youngest Son, if the Copy holder purchase the Free-hold and the Fee-simple of the Copy-hold, so that this is made Free-hold, this shall discend to the youngest Son; so if a Copy-holder by custome is discharged of payment of Tythes in kind, so the office of the master of the Rolles hath many liberties pertaining to it, and this is granted but Durante placito, yet if the King grant that in Fee as he may, yet he shall have all the Fees and Priviledges annexed to that, and so it seemes to him that this com∣mon being annexed to the Land, though that the Estate be increas∣ed,

yet the common remaines, his second reason was of the man∣ner of conveiance, and that was by confirmation, and if that con∣veiance had been by Feoffment, peradventure the common had been gone: But a confirmation enures allwaies upon an Estate precedent, and though that this somtimes inlargeth the Estate, yet this doth not alter the Estate, as to any priviledges annexed to it, his third reason was of the matter of the confirmation, and that is; that he hath confirmed it with the appurtenances, and this seemes to him, admitting that the common had been extinct, yet these words with the appurtenances amount to a new grant of a common, as in the case of Corody, in 22, Ed. 4. 17. and 18. If the King grant to one such a Corody as I. S. had, he shall have so much bread and beere as I. S. had, so here when he grants and confirmes that with the appurtenances, this is with all such privi∣ledges as I. S. had; so here when he confirmes with the appurtenan∣ces, this is with all the priviledges that the old Estate had, and so this should be a grant of such common as was annexed to that, and so it seemed to him for these reasons that the common remaines; to which it was said by Davies of the other part, that he agreed al the manners of Prescriptions, but he denied that it was a locall Prescrip∣tion, that is to Land, but only to an Estate, and this proves well the words of the Prescription, for the Copy-holder ought to prescribe, that is, that every customary Tenant within the Mannor, &c. So he hath his common in respect that he is customary Tenant, and this is in respect of the Estate which he hath by the Custome, and not in respect of the Land, and that this shall not enure as a new Grant, he cited a case to be adjudged Michaelmasse 43. and 44. Eliz. in the Kings Bench, Rot. 367, Where in Trespasse, the Defendant justifies the lopping of Trees in the wast of the Lord, where the custome was that every Copy-holder might shride the Trees in the wast of the Lord, and that he was a Copy-holder there, and the Lord granted to him the Inheritance of his Copy-hold, with all such Lands, Tenements, and Commons of Estovers pertaining to the Copy-hold, and adjudged that insomuch that the Customary Estate was distroied, this custome was not now annexed to the Land, but being determined with the Estate cannot be said appertaining to it, and for that the Justification ill; and it seemed to him to be all one with the principall case and it was adjourned, and after in Michael∣masse Tearme 8. Jacobi, It was adjudged that the Common was ex∣tinct and not revived.

Hillary 7. Jacobi 1609. In the Kings Bench Proctor against Johnson

THE Case hath depended seven yeares in this Court upon a * 1.210 Writ of Error, was this; Two Joynt Tenants for yeares of a Mill, one grants his Estate severally to another and dies, the Grantee doth not enter yet: The other reciting the Lease to him made and to his companion joyntly, and that his companion died, so that all belonged to him as Survivor (as he intended) grants all the Mill to Johnson, and all his Estate, Right, and Interest in that: And covenants that the Grantee there shall continue dis∣charged and aquitted of all Charges and Incumbrances, or other Act or Acts done by him, and after binds himselfe in a Bond to per∣forme all Grants, Covenants, and Agreements, contained in the Indentures, according to the intent and meaning of the parties, and after the Grantee of his companion entered into the halfe, and the question was, If the Bond were forfeit or not; and it was adjudged in the Common Bench that the Obligation was forfeited: And the matter was argued this Tearm in this Court by Yelverton of Grayes Inne, that the Bond shall not be forfeited, for the Bond was with Condition to performe all Grants, &c. According to the true intent and meaning of the parties, and then let us see what was the intent of the parties, and suerly this appeares by the recitall in the Indenture, and for that he said that all appeares to him as survivor (as he conceived) so that he was doubtfull of that, and for that his meaning was, that if he had all, then to grant all; and if he had but a moity, then to grant but the moity, and this proves well the words subsequent, where he saith that he granted the Mill (and all his Estate, Right and Interest in that,) so that he did not intend to grant more then his Estate, and these words subsequent qualifie the generall words precedent, and so it seemes to him that the Obligation shall not be forfeited.

And Sir Robert Hitcham the Queens Attorney to the contrary, and that the Bond was forfeited, for he hath bound himself to perform all grants, and he hath not performed his Grant, for he granted all the Mill, and then though but a moity passeth yet he shall forfeit his Bond, if the moity be evicted, and for that if a man which hath nothing in the Mannor of D. makes a Lease by Deed indented to J. S. and binds himself to performe all Grants, though that nothing passes, yet if he enter and be ejected he shall have Debt upon his Obligation, and he cited one Yelvertons Case to be adjudged, but did not tell when, where a man which hath nothing in the Mannor

of Dale, covenants with J. S. to stand seised to the use of him and his Heirs at Michaelmas, and before Michaelmas he purchases the Mannor of Dale, and it was resolved that no use shall be raised at Michaelmas, for he had not the Mannor at the time of the Covenant, and also it was resolved that no Action of Covenant lies upon the Co∣venant, but he sayd that it is a cleer Case, that if he had entred into a Bond to perform all Covenants in the Indenture, that the Bond shall be forfeited, though that he could not have action of Covenant upon the Covenant, and also he sayd, that he well agreed the Case of the Lady Russell, which was adjudged also (but Nescio quando) where a man made a Lease for years of the Mannor of Dale except one Acre, the Lessee binds himself to perform all agreements, and after the Lessee enters into the Acre, this shall be no breach of the conditi∣on, for this exception is no agreement, for nothing shall be sayd an agreement in an Indenture but that which passeth in Interest, and so he sayd that though that the Lessee cannot have an Action of Cove∣nant in the principall Case, insomuch that this is so speciall, yet the Bond shall be forfeited upon these Words, grants, and agreements, and the Covenant special doth not qualify the generall express grant; and after four Justices, that is Flemming the cheife Justice, Willams, Yelverton, and Crooke, were of opinion that the Bond is forfeited, and this for the generalty of the Grant, & his Intent was cleerly to pass all, but Williams, if he had sayd, Totum Molendinum suum, or all his Estate in the Mill, there paradventure it should haue been otherwise; and so a difference where he saith he grants the Mill and all his Estate in that, and where he grants all his Estate in the Mill, for in the first case all passes by the Grant of the Mill, and these words which are after, are but words explanatory, as ••rooke sayd; and it was ad∣journed.

And after in Easter Tearm next insuing, Hitcham the Queens At∣torney, came again, and prayed that the Judgment be affirmed, and Yelverton of Grayes Inne sayd, that he hath considered of Nokes Case 4. Coke, and this was all one with this case, for the case was thus, A man lets a House in London by these words, demise, Grant, &c. That the Lessee should injoy the House during the Tearm with∣out eviction by the Lessor or any claiming from or under him, and the Lessor was bound to peform all Covenants, Grants, Articles, and Agreements, as our case is, and there by the whole Court, that the sayd express Covenant qualifies the generalty of the Cove∣nants by the Words Demise and Grant, which is all one with our case, for first he granted, Totum Molendinum, and after covenant that he should injoy, &c. against himself, and all which claime, in, by, from, or under him, and after binds himself to perform all Grants, Covenants, Articles, and Agreements, and so it seems

to him, that it is au expresse Covenant, in this Case as well as in other, and qualifies the generall Covenant, implyed by the word (Grant) and then the Grantee being outed by a title Paramount, no Action of Debt upon such Obligation, and prayed that the Judg∣ment be reversed, and the Justices sayd they would consider Nokes Case, and the next day their opinions were prayed again, and the cheife Justice sayd that he had seen Nokes case, and said, that there is but a small difference between the cases, but he sayd that some difle∣may be collected.

For first in our case, is a Recitall of the Estate of the Grantor, that is, that all belongs to him as Survivor, and for that this was a manner of Inducement of the Grantee to be more willing, and forward to accept of the Grant, and to give the more greater consideration for it, but in Nokes case there is no recitall, and so this may be the diversity.

Secondly, In Nokes Case, the Tearm past all in Interest at the first, and the Grantee or Lessee, had once the effect of this Lease in Interest of the Lessor, but in this case when two Tenants in Common, and one grants Totum molendinum, there passes but a half at the first, and so the grant is not supplyed for the other halfe, and then if the speciall Covenant shall qualify the generall, &c. The Grantee shall not have any remedy for a half at all, and this may be the other di∣versity, but admitting that none of these will make any difference, then he sayd that all the Court agreed, that this point in Nokes Case was not adjudged, but this was a matter spoken collaterally in the case, and the case was adjudged against the Plaintiff for other reasons, for that that he did not shew that he which evicted this Tearm had title Paramount, for otherwise the Covenant in Law was not broken, and for this reason Judgment was given against the Plaintiff, and not upon the other matter, and so the whole Court against Nokes Case: And the cheif Justice sayd, that to that which is sayd in Nokes case, that otherwise the speciall Covenant shall be of no effect, if it cannot qualify the generalty of the Covenant in Law, he sayd that this serves well to this purpose, that is, that if the Lessor dyes, and any under the Testator claim the Estate, that the Action of Covenant in this case lies against his Executors, which remedy otherwise he cannot have, for if a man makes a Lease by these words (Devise and Grant) and dyes, Action of Covenant doth notly against his Executors, as it is sayd in the 9. Eliz. Dyer 257. But otherwise upon expresse Covenant, and then this expresse speciall Covenant shall be to this purpose. And also it seems to him that if a man devise and grant his Land for years, and there are other Covenants in the Deed, that in this case if the Lessor binds himself to perform all Covenants, that he is not bound by his Bond to per∣form

Covenants in Law, and he cited that to this purpose the Books of 22 H. 6. and 6 Ed. 6. B. Tender, that if a man makes a Lease for yeares rendring Rent, this is Covenant in Law, as it is sayd, 15 H. 8. Dyer, and a man shall have Debt or Covenant for that, and yet if a man binds himself in a Bond to perform all Covenants where there are other Covenants in the Deed, and after doth not pay the Rent, no action of Debt lyeth upon this Obligation, nor the nature of the Debt altered by that, and he sayd that the Mun∣day next, they would pronounce Judgment in the Writ of Errour accordingly, if nothing shall be sayd to the contrary, and nothing was sayd.

Hillary 7. Jacobi 1609. In the Kings Bench. Bartons Case.

THE Case was this, A man was taxed by the Parish for Reparati∣ons * 1.211 of the Church, and the Wardens of the Church sued for this Taxation in the spirituall Court: and hanging this Suit, one of the Wardens released to the Defendant all Actions, Suits, and Demands, and the other sued forward, and upon this the Defendant there procured a Prohibition, upon which matter shewed in the Pro∣hibition was a Demurre joyned, and Davenport of Grayes Inne mo∣ved the Court for a Consultation, and upon all the matter as he sayd the point was but this, If two Wardens of a Church are, and they sue in the Court Christian for Taxation and one Release, if that shal barr his Companion or not. And it seems to him that this Release shall not be any Barr to his Companion or Impediment to sue, for he sayd, that the Wardens of a Church are not parties interested in Goods of the Church, but are a speciall Corporation to the Benefit of the Church, and for that he cited the Case in 8 Ed. 4. 6. The War∣dens of the Church brought Trespass for goods of the Church taken out of their possession, and they counted, Ad damnum Parochiano∣rum, and not to their proper damage, and the 11 H. 4. 12. 12 H. 7. 27. 43 H. 7. 9. Where it is sayd expresly, that the Wardens of the Church are a corporation only for the Benefit of the Church, and not for the disadvantage of that, but this Release sounds to disad∣vantage of the Church, and for that seems to him no Barr, also this Corporation consists of two persons, and the Release of one is nothing worth, for he was but one Corps, and the moyity of the Corps could not release, and for these reasons he prayed a consultation, and Yel∣verton to the contrary, and he took a difference, and sayd, that he agreed, that if the Wardens of the Church have once possession of the Church, there in Action of Trespas brought for these Goods, one War∣den

cannot release, but this tax for which they sue is a thing meer∣ly in Action of which they have not any possession of that before, and there he cannot sue alone, and for that this release shall barr his Companion. And the Court interrupted him, and sayd, that cleerly consultation shall be granted, and Flemming cheife Justice, we have not need to dispute this release, whether it be good or not, and there is a difference where a suit is commenced before us, as if Wardens of the Church brought Trespasse here for Goods of the Church taken, and one Release, then we might dispute if this release were good or not, but when the matter is original begun before them in the spiritu∣all Court, and there is the proper place to sue for this Tax and not any where else, we have nothing to do with this Release, and for that by the whole Court, a consultation was awarded.

Hillary 7. Jacobi, 1609. In the Kings Bench. Styles Case.

UPon a Motion made by Yelverton on the behalfe of one Styles, the Case was this, Styles had a Judgment in Ejectione firme, and * 1.212 was put in possession by the Sheriff, by an Habere facias possessionem, and after the Defendant enters againe, within the two weeks after Execution, and the Writ was returned, but not Fyled; and Yelver∣ton moved the Court for another Writ of execution; and by Wil∣liams he could not have a new Writ of Execution, but is put to his new Action, and the Fyling of the Writ is not materiall, for it is in the election of the Sheriff, if he will Fyle or returne that or not; but be sayd, if the Execution had not been fully made, as he sayd there was a Case, where the Sheriff made an Execution of a House, and there were some persons which hid themselves in the upper Lofts of the House, and after the Sheriff was gone, they came downe and outed those that the Sheriff had put in possession before; and in this Case a new Writ of Execution was awarded; but there a full Execution was not made, and so the difference: But the cheif Justice sayd, That if the Sheriff put a man in possession, and after the o∣ther which was put out enters in forthwith, that in this Case the Court may award an Attachment against him, for contempt against the Court.

Hillary 7 Jacobi, 1609. In the Kings Bench. Gittins against Cowper.

CUstome of one Mannor was, That if any Copy-holder within * 1.213 the Mannor committed any Felony, and this be presented by the Homage, that the Lord may take and seise the Land; a Copy-holder committed Felony, and this was presented by the Homage, and after the Copy-holder was Indicted, and by Verdict acquit, and the Lord entred, and if his entry were lawfull or not, was the question: The points were two.

First, If the Custome were good.

Secondly, Admitting the Custome to be good, if this Verdict and acquittall shall conclude the Lord of his entry.

And Walter of the Inner Temple argued that the Custome was good, and that the Lord was not concluded by this Verdict: And to the first point he sayd, That it was a good Custome; First inso∣much it might have a reasonable beginning, and for that he cyted the Book of 35 H. 6. where it is sayd, that such Customes which might have reasonable beginning should be good, and to that he cyted a Case which was adjudged, as he sayd, in 27 Eliz. and was one Delves Case, and the Case was this, A Quo warranto issued a∣gainst Delves, to know Quo warranto he held a Leet, to which he pleaded, that he was seised of such a Messuage, and that he, and all those whole Estate he hath in the said Messuage have used allwaies to have and hold a Leete there within the Messuage: If this pre∣scription, that is to have a Leete appendant to a single Messuage was good or not, was the question: And it was adjudged insomuch that by resonable intendment it might be that this house was the Scite of a Mannor, and the Lord granted that with the Leet, the Prescription adjudged good; and he sayd that many Customes are grounded upon the nature of the place, and for that he sayd that this Mannor was adjoyning to great Woods, and it might be that the Copy-holders committed Felonies and outrages, and after fled into the Woods, and there lived, and yet injoyed the benefit of their Copy-holds, and for that it was reasonable for the Lord to annex such a restraint and condition; that is, if they committed any Fe∣lony, this should be a forfeiture of their Copy-hold, and this should be a meanes to bridle them to commit such haynous and odious of∣fences: And that Customes ought to have a respect to the place, he cyted the Case of 12 H. 3. where the Custome of the Isle of Man was, That if any man stole a Hen or a Capon, or such small

matter, that should be Felony, but if he stole a Horse that should not be Felony, for a man may privily convey away a Hen or might consume it, but for the smalnesse of the place, and being compas∣sed with the water, he could not so doe with a Horse; So in 39. H. 6. That the married Wife of a Merchant in London, may sue and be sued by the Custome, and the reason is that London is the cheife City and place of Merchandise within the Realme of England, and it is conceived that the Merchants cannot be alwaies resident there but sometimes beyond Sea, or other where about their businesse and Affaires, and for that it shall be reasonable that his Wife shall sue and shall be sued in his absence, and in time of E. 1. Title Prescription, the custome of Hallifax, that if any Felon be taken with the manner, he shal be forth∣with beheaded, and this was as it seems for the better suppressing the common Felonies there committed, and so he concluded for this Reason, that this custome might have such reasonable beginning, and in respect of the place that should be a good custome.

His second Reason was, that this might begin at this day lawfully, Therfore this shall be good, and for that he cited the case of 10 H. 7. 11. That if a man make a Feoffment upon condition, that the Feoffee shall not commit Felony, that this is a good condition, but he sayd, that he supposed that if the Feoffee commit Felony, and the Feoffor en∣ter into the Land, and after the Feoffee is attaint of this felony, that now the Lord shall enter by Escheate, and his reason was, that the Statute of Westminster 3. De quia emptores terrarum, prohibits any man to make a Feoffment, to the prejudice of the Lord, to his Wardship or Escheat.

His third reason was, that this was a good Custome, insomuch that this was annexed to an Estate created by custome, and for that he cited one Skeggs case to be adjudged in 24 yeare of Eliz. and was thus, that is, The custome of a Mannor was, that a marryed wife Copy-holder might surrender to the use of her last will, and after might de∣vise to her Husband, and it was adjudged, insomuch that this was annexed to her Estate which begun by custome, this was a good cu∣stome, and the 3 of Ed. 3. At the common Law such custome is voyd, and after he cited a Judgment in the point given in this Court, 23. of Eliz. Rot. 5014. or 504 or 5004. that the same custome was ad∣judged a good Custome: after he answered some objections which might be made against this custome, that is.

First for the uncertainty of the time when the presentment shall be by the Homage, and to that he sayd that the Lord may make that when he will, and the time doth not take away the offence, and no prejudice upon that discends to the Heir, but is to his advan∣tage.

Secondly, Because no number certaine of the Homage, and

that every tryall must be by twelve, and to that he answered, that we are not now in point of Tryall, but only for the information of the Lord.

Thirdly, this is against the nature of a Court-Baron to inquire of Felonies, and to that he said, there is not any inquiry made here, but only to inform the Lord, and such a thing is not against the nature of the Court which inlargeth this.

Fourthly, The offence is against the King, and a common per∣son shall not have the punishment of that, to that he sayd the King shall not have any benefit of it, for he shall not have any Escheat of Copy-hold lands for Treason or Felony.

Fiftly, This is against the Kings Prerogative, to that he sayd, that Custome may be against the Prerogative of the King, as if a man claim Waife or stray by prescription, these are things given to the King by his Prerogative, and yet Prescription for them is good, and so he concluded this first point, that the custome was good.

To the second point he conceived, that this verdict and acquit∣tall shall not conclude the Lord, and for that he sayd, that at the Common Law, if a Verdict had been given and no Judgment upon it, the party was not concluded to bring the same Action, 18 Ed. 3. 35. Then comes the Statute of 2 H. 4. And this outs non-suit after ver∣dict, * 1.214 and yet if verdict be imperfect, or finds a thing not in Issue, there non-suit may be after verdict, as it is sayd in 22 Ed. 4. 10. And if verdict be given in the point, and Judgment upon that, doth not conclude the party to have action of more high nature, as it is sayd in 3 Ed. 3. and 3 Assise 1. and Hudsons ease in the 4 Coke, and as it is in Tryalls of Land, so it is in tryalls of life, as 2 R. 3. 14. 7 H. 4. 34. Then if the party himself shall not be bound by verdict, A for∣tiori, a stranger shall not be, also every Estoppell there ought to be a matter of estoppell, for the Jury is not sworn to give their verdict ac∣cording to the truth in Deed, but according to the evidence to them given, and then if faint evidence or no evidence be given, it shall be hard that this shall conclude any of his right, also there is no par∣ty to be estopped because a stranger as is aforesayd, also the acquit∣tall is in such manner, that is, that he hath not committed the Felony in manner and form as in the Indictment is alledged, and this doth not answer the Custome, because generall, so it seems to him, that this shall not be any conclusion to the Lord, and so for both points the entry not congeable.

And Stevens to the contrary, and it seems to him breifly that the custome was not good, and he denyed the Rule, that is, that this might have reasonable beginning by agreement of parties shall make a custome good, and for this Littleton saith in his chapter of villainage,

that if the Lord of one Mannor will prescribe to have Fine, if any of his Tenants marry their Daughters without his license, this is a void cu∣stome, and yet it may be such agreement between the parties at the first, and it seems the custome not reasonable, for it is too generall, that is; if any Tenant, and this doth not exclude Infants.

Secondly, if any Felony be committed, and this includes petty Larceny, and Maime by involuntary means, for these are Felonies, and for that see, 13 H. 7. 19. 6 H. 7. That in Appeal of Mayme, a man shall count Felony, and yet it shall be hard that a man shall loose his Land for these Felonies. Secondly, Homage cannot inquire of the fact of Felony, but of the conviction of Felony, and so it seems to him the custome ill, and to the other point it seems that the Lord shall be concluded, and to that that hath been objected that the Lord is a stran∣ger to the verdict, and for that cause shall not be estopped, he said that the Lord is no stranger, for in this case every man is party, and every man may give Evidence for the King, and he cited the case in the time and title of Mortdancester, where the case was, where a man was as principall for the Death of J. S. and another as accessary in receiving the Principall, after the principall was out-Lawed, and the Accessa∣ry hanged, and the Lord seised the Land of the Accessary for Escheat, after came the principall and reversed the Out-Lawry, and was found not guilty, and the Heir of him which was hang'd, entred upon the Lord, and adjudged, insomuch, that there cannot be an Accessary, unless there be a principall; that the entry of the Heir was lawfull in this case, so he sayd in this case, insomuch that the Copy-holder is acquitted by verdict and found not guilty, and seems to him that the entry of the Lord should not be lawfull, and by the whole Court the custome was good, but they did not deliver any opinion upon the second point, for they moved the parties to Composition.

Hillary 7. Jacobi 1609. In the Kings Bench. Barwick and Fosters Case.

A Man made a Lease for two years at Michaelmas, rendring two * 1.215 shillings yearly during the Tearm, at the Feast of the annunci∣ation of our Lady, and Michaelmas or ten dayes after, at the Feast of Saint Michaell in the last year the Rent is not paid, the question was what remedy the Lessor hath for his Rent of this halfe yeare, and the opinion of Flemming cheife Justice, and Williams was, that he hath no remedy.

And first they sayd, as this case is, the Lessee hath election to pay either upon the Feast or upon the tenth day after, and that is for the bene∣fit of the Lessee, then he hath made his Election not to pay that at the

Feast of Saint Michaell, then it is cleer that the Lessor hath no reme∣dy by way of distress, for the Tearm is ended before; and by Action of Debt upon the Contract, he hath no remedy as it seems, as this case is, for the Contract is that the Rent shall be paid yearly during the Tearm, then when the Tearm is ended, the contract is determined, and for that the cheife Justice sayd, That if a man makes a Lease at Michaelmas for a yeare, rendring Rent yearely at our Lady day, and the ninth of October which is after Michaelmas, that the Lessor hath not any remedy for the Rent of the last halfe yeare, for that is not reserved to be payd yearly, according to the contract: And Yelverton Justice agreed that the Lessee hath election as above, but he saith, when that is behinde the tenth day after Michaelmas, then the Lessor shall bring his Action of Debt, and declare that the Rent was behinde at the Feast of Saint Michaell, and shall not make mention of the ten dayes after; and Coke Justice sayd, That it seems to him that the Lessee shall not have the benefit of these ten dayes after the last Feast, for the words of the Lease are (ren∣dring Rent yearly) during the tearme at the Feasts aforesayd, or ten dayes after; so that the Lessee shall have the benefit of these ten dayes during the tearme, but not after, then he shall not have these after the last Feast of Saint Michaell, for then shall the tearme be ended: And after in Trinity Terme, 8 Jacobi, The Case was moved againe; and then Flemming cheife Justice conceived, That the Lessee shall not have ten dayes after the last Feast, and this upon construction to be made reasonably, for otherwise the Tearm being ended, the Contract should be determined with the Tearm, and so the Lessor should be without remedy for his Rent, and he sayd, that reservations are not taken so strictly, according to the let∣ter.

And for that he cited the case of Hill and Granger in the Com. fol. 171. Where a man makes a Lease for a year: And the Lease was made in August, rendring Rent yearely at the Annunciation of our ••ady and Michaelmasse, upon condition of Re-entry: In this case the first payment shall be at the next Michaelmasse after the making of the Lease, and not at the Annunciation of our Lady, though this is first in words, and this by reasonable construction, for otherwise this word (Yearely) shall not be supplied, and of this see the Action, and so he said in this case, Rent is reserved yearely during the Tearme, at the Feasts of the Annunciation of our Lady or Michaelmasse or ten daies after, he shall not have ten daies after the last Feast: But Williams held his old opinion that the Lessor hath no remedy for the last halfe years Rent, and it was adjourned.

Hillary 7. Jacobi, in the Kings Bench. Grymes against Peacocke.

IN Terspasse for his Close broken, The Defendant justifies, * 1.216 that it was used within the Mannor of D. that every Farmer of such a house (and averred, that that had been allwaies let to Farme,) had Common in the Lords wast: The house came into * 1.217 the hands of the Lord in Possession: And he granted the house and the wast to J. S. in Fee, J. S. Bargaines and Sells the house to J. N. with all Commons, Profits, and Commodities, used, occupied, and pertaining to the same: And after grants the wast to another: If the Grantee of the house shall have Common in the wast was the question: And Yelverton argued that the Common was gone, for if he shall have Common, this shall enure as a new Grant of a Com∣mon, but this cannot so enure for two reasons.

First, when a man will grant a Common, he ought to shew the place in certaine where the Grantee shall have this Common, or o∣therwise the Grant is void; But here no place is shewed, and for that it cannot enure as a new Grant of a Common.

Secondly, If that be a new Grant, yet this hath reference to the usage, that is, Quod Ʋsitatum est, &c. And this Ʋsitatum is void, for it seemes to him that Lessee for yeares cannot alledge a usage, for every (Ʋsitatum) ought to go in one selfe same currant, not interrupted as in ths case of a Coppy-hold: But here every new Lease, is a new contract, and so the usage is interrupted, and then the Grant having the reference to the usage, and that is void usage, nothing shall passe by this Grant, and for that in Long, 5. Ed 4. 40. If a custome be against Law: And that is confirmed by the Act of Parliament, this is void confirmation, for it hath refer∣ence to a void custome, so here this Grant hath reference to the usage, and for that it seemes to him that the Common is gone.

Hutton Serjeant to the contrary, and that the Grantee of the Messuage, shall have common, for this usage is not a thing by strictnesse in Law appertaining to the Land, but this hath gained his reputation, that that shall passe very well in a conveiance by apt words: And for that it will not be denied, but if a man makes a Lease for years to one, and grants him Common for all his Kine, &c. And after this Lease expires, and he makes a new Lease, and grants such Commons as the first Lessee had, that this shall be a good grant of Common to the Lessee: So he said in this case, this grant of the house with all profits and commodities used, occupied,

and appertaining to the said Messuage, shall be said a grant of such Common, which other Lessees of this Manner have used, and this by reasonable construction in Law, to make good the conveiances of Lay-men, according to the common speaking, for Benigne sunt Faciende Interpritationes Chartarum, &c. and for that he cited the case of Hill and Grange in the Comment: Where the case was: That a man made a Lease for yeares of a house and a hundred Acres of Land appertaining to that, though the Land be not appurtenant to the house, yet insomuch that this hath been usually occupied with the house, this shall passe as appertaining to it, and so 26. Assis. 38. A man makes a Lease for life rendring Rent, and after grants over the Rent to J. S. and dies: The Heire grants and con∣firmes to the Grantee and his Heires, the same Rent with clause of distresse, and the Tenant for life dies, now is the Rent reserved upon the Estate for life determined, and yet this shall enure as a new grant of another Rent in quantity: So in Sir Moyle Finches Case, the case of uses, and Durham in Ejectione Firme: A Lease was pleaded of a Mannor, whereof the feilds in which, &c. Were parcell: And Issue was joyned, Quod non Demiset Manerium: And upon this Issue found it was, that there were not any Free-holders, but diverse Copy-holders, and this was allwaies knowne by the name of a Mannor, and it was adjudged that this shall passe for him which pleads the demise of the Mannor: Then if in Judiciall proceeding the Law makes such favourable construction to make that passe by a Mannor which is no Mannor in truth, because it hath been usually known by the name of a Mannor, then it seemes to him, a Fortiore, that no more beneficiall construction shall be made in conveiances, which allwaies shall be construed to the intent and meaning of the parties, and so it seemes to him that the Common remaines, and Crooke, Yelverton, and the cheife Justice Flemming conceived that in reason he shall have the Common, but they did not give any absolute opinion as to that: But Williams Justice to the contrary, and that the Lessee for yeares cannot have more, then he contracted for in his Lease, and then the Ʋsitatum void, and the Lessees have taken that by wrong: And this Grant having reference to a void and wrongfull usage, is not good, and it is adjourned.

Hillary 7. Jacobi 1609. In the Kings Bench. Stydson against Glasse.

Stydson brought an Ejectione Firme against Glasse: and upon spe∣ciall * 1.218 Verdict the case was this: that is, That one Holbeame was

seised of the Land in question in Fee, and made a Lease for life to Margret Glasse, and after covenanted with John Glasse Husband of the said Wife Lessee, that before such a day he would Levie a Fine to A. B. and to the Heires of A. of the same Lands, which Fine should be to the use of the said Glasse for sixty yeares, to begin af∣ter the death of the said Margeret Glasse, with Proviso within the same Indentures, that if the said Holbeame at a certaine day should pay to the said John Glasse a hundred pounds, that then the Lease should cease, and then of that the Conusees should stand seised to the use of the said John for his naturall life, and after the said Hol∣beame disseised the said Margeret Glasse the Lessee, and made a Feoff∣ment to the use of himselfe and one Alice, with whom he inten∣ded to marry, and to the Heire of their two bodyes begotten, the remainder to the right Heires of the Feoffor, and after the sayd Feoffor and Alice intermarried, and after the said Holbeam tendred a hundred pound to the sayd John Glasse the Lessee for years, and after the sayd John Glasse assigned over his Tearme, and after the sayd Holbeam by Deed indented and inrolled, bargained and sold the said Land to the said John Glasse and his Heir, and after Iohn Glasse dyed, and the Inheritance discended to the said Margeret Glasse Lessee for life, the Conusor dies, his Wife enters, and lets to the Plaintiff, the Defendant enters upon him, and the Plaintiff re-enters and brings Trespass against the Defendant, which justifies as servant to the Assignees of the Tearm, and if upon all the matter, &c. And it was argued by Nicholls Serjeant for the Plaintiff, and he moved three points in the case.

First if by this feoffment upon such condition as this is, had been Extinct at the Common Law, or remaines to the Feoffor notwithstan∣ding the feoffment, for if he have interest in the Land, then it is ex∣tinct by the Livery, for it is given of the Feoffor and past out of him, and yet the Feoffee cannot have, and for that it is extinct, but if it were but Authority, as in 15 H. 7. Authority to sell the land of the Devisor, then the Authority remaines, and is not extinct by the Fe∣offment of the land, so power of Revocation to a stranger which is but authority is not extinct by a feofment: Albaines case Coke 112. a. But if it be right in Interest, then it is extinct by the feofment, as power of revocation to the Party himself, resolved to the point in Albains case, so of Title to a Writ of Deceit, 38 Ed. 3.

So of a title to be Tenant by the Curtesie, 9 H 7. 1. But by 42 Edw. 3. by a Feoffment made by a Parson of Land of his Rectory, the Tythes of that Land are not extinct, but remaines notwithstan∣ding the Feoffment, for that it was collaterall to the title of the Land, as the Cases of Authority are, which were put before; then if this power to alter a Lease by payment of a hundred pound be

not any right nor Interest, but a collaterall power, and the authority not extinct by the Feoffment, but remaines; but admitting that it is in nature of an ordinary Condition, and that before the Statute it should be extinct by the Feoffment, for that it is the gift of the Feoffor, and yet it is not transferable to the Feoffee: If now by the Statute of 32 H. 8. which inables Grantees of reversions to take advantage of Conditions, if the condition be not transferred to the Feoffees, and so over, to he to whose use, that then by consequence this remaines to the Feoffor, which was the he to whose use, and then the tender of the money after, well may alter the Lease; it seems that so, for before the Statute if a Lease for yeares had been made upon condition to cease, and after the Lessor enters upon the Lessee and makes a Feoffment, and the Lessee re-enter, and breakes the condition, the Feoffee shall take advantage of that condition, being by way of ceasing of an Estate; so after the Statute, the Fe∣offee of the Lessor shall take advantage of the condition of Re-en∣try, and of every other condition annexed to the reversion, as well as of one condition to cease, before the Statute, and as well that e∣very Grantee shall doe since the Statute, for though that he comes in by Feoffment, which is wrong to the Lessee, yet after the re-en∣try, the Lessee is in nature of a Grantee: And he cyted the Case of Clyfford Error, 7. Ed. 6. to be, that Lessor entred upon his Lessee and made a Feoffment, if the Lessee re-enter, the Rent and the Condition are revived againe and the Feoffee shall have both, see Cliffords Error, 7. Ed. 6. Dyer the last case, and 1. M. Dyer 96. 43. but there is not any such matter, and for that it seemes that he hath another report of this case of Cliffords Error, or otherwise he meant some other case and not Cliffords Error, so is our case the condition being inherent to the reversion shall passe with the re∣version, be that by grant or feoffment; and when the reversion is revived by the entry of the Lessee, the condition shall be revived also, and it is the more strong, insomuch that the Condition is, that upon the payment of the money the Lease for years shall cease, and not that the Lessor shall re-enter, that such Feoffee shall take advantage of a condition by way of ceasing of that at the Common Law: 2. point, and for the second point he would not argue a∣gainst that, that he took to be cleer, and for that he conceived the Law to be against his Clyent in this point, though that after the Disseisin and Feoffment the free-hold could not accrue.

Thirdly, The third point was, that after the disseisin of the Te∣nant for life, he that had future Interest of a Tearme to begin after the death of the Lessee for life (during the disseisin) assignes o∣ver all his Interest, if this assignement be good or not, and he ar∣gued that not, for by him the disseisin of the Tenant for life, the

future Interest to commence after the death of the Tenant for life, is converted into a Right, and Right of a Tearme cannot be transfer∣red over, for though that Lessee for years to begin presently, may grant over his Interest before his Entry, and it is well for that, that it is an Interest forth with, yet if before his Entry the Lessor be disseised by a stranger, yet by him now, he cannot grant his In∣terest over for that, it is converted into a Right of a Tearme, but he ought to re-enter before that the Lessee may grant over his Tearme, so in our case, though that before the disseisin of the Les∣see for life the future Interest was transferrable over, for that, that it was Interest, though that it was not a Lease in posaession, yet when the Tenant for life was disseised then his Interest of a Tearme was turned into a Right of a Tearme, and then it is not transfer∣able over till the re-entry by the Lessee for life, and he said that it was resolved by the 2. cheif Justices in the Star-chamber as he hath heard, that if Lessee for years be, and before his entry a stranger enters, and disseises the Lessor, that now the Lessee cannot grant his Tearme before that the Lessor hath entred, or he himselfe hath gained the Tearme in posaession: And so it seemes to him, that the future Tearme doth not passe by this assignement, and then it is extinguished by the purchase which commeth after, and then the Justification of the Defendant as Servant to the Assignees not good: And so upon all the matter he praied Judgement for the Plaintiff.

Williams Justice said, that it was cleer, if a man have a Lease for years, to begin after the death of a Lessee for life, as is the case at the Barr, that though that the Lessee for life be disseised, yet the Interest remaines good Interest to the Lessee, and is not turned into a Right of a Tearme, and for that he may grant it over, notwithstanding the disseisin, and so is Sapphins case 5. Coke 104. Otherwise if the Lessee for years had been any time in posaession by force of his Lease, and it is Adjourned.

At another day the same Tearme the case was argued againe by Yelverton of Grayes Inne of the other part, that is for the Defen∣dant, and first he said that the Plaintiff which claimes under the Wife, of Hlobeame hath not any right to one Moytie cleerely, for the Husband and the Wife were Joynt-Tenants before the cover∣ture: So that they take by Moyties and not by Intirities, and when the Husband bargaines and sells all, that is a seperation of the Joyntenancy, and his Moytie is gone for ever, as it appeares by 3. M. Dyer 149. 82. So that for one moytie it is cleer, that the Plaintiff hath not any right any way, how ever the case prove, for the other Moytie, and this Moytie which was conveied by the Husband is discended to the Defendant, which hath no speciall

outer found by the Verdict: But only that he entered which he well might, having the other halfe, and then no Trespasse found by the Jury, and also the Damages found by the Jury are Intire, and then being no cause of Damages for part, there shall be no Judgement for the residue: And the first point that he moved was, if after this disseisin and feoffment over, the Feoffor might tender the money to cease the first Estate, and it seemes that not, for the Free-hold cannot accrue, as it seemes to him by any tender after his disseisin, and so it hath been agreed to him as he said by the Councell of the other part, and then by him this condition consisting of two parts, this is Disseisin of one Estate and Accruing of the o∣ther Estate, if by this desseisin the condition be distroied, for the accruing of the Estate, it seemes also that it shall be distroied as to the ceasing of the first Estate; for if a condition be distroied in part it shall be distroied in all, for it is Intire and cannot be apportioned, and by consequence if one Estate cannot accrue, the other shall not cease: And he resembled it to the cafe in the 14. H. 8. 17. And Perkins, condition being in the Coppulative one part being dis∣penced with the other, was a discharge, so when a man hath e∣lection to do one of two things, if one be discharged (though that it be by the Act of God) as by death, &c. Yet the other shall be discharged by the Law, as it was in Langtons Case 5. Coke 22. a Fortiore when one is discharged by the Act of the party, also by him if he had made any Feoffment after this desseisin, yet the very disseisin would destroy the accruing of the Estate, for though that he do not gaine Fee by the disseisin but only Estate for life, and re∣taines his old reversion in him, according to 9. H. 7. 25. Yet the Fee and the Free-hold are so conjoyned by discent of that Estate alters an entry, as it appeares by 3. Ed. 3. Entry Congeable 58. And if he in reversion disseise Tenant for life, the Contingent uses shall never rise, by Chidleys Case first of Coke 158. Condition that he retaine his old remainder, no more of the accruing of the Fee in our Case, for by him it appeares by 10. Assis. and Nicholls Case Com. That Estate ought to accrue upon posaession, or at least upon an Estate in being, and not upon a right of an Estate only: And for that he ci∣ted 6. R. 2. Pleasingtons Case, Lease for years upon condition, that if the Lessee be outed he shall have Fee, though that he be ou∣ted yet he shall not have Fee, for that, that at the time of the con∣dition performed he had but a right of Tearme, and no Tearme in posaession, so is our case after the disseisin, he having but right the Estate cannot accrue.

Secondly if the Grantee, or he to whose use, may performe the Condition, either by the Common Law, or by Statute Law: And he conceived that none of these might performe that, for first at

the common Law, though that Grantees of reversions may take ad∣vantage of a Condition by way of cesser of Estates, upon the condi∣tion performed, yet this is only when the condition was to be perfor∣med of the part of the Lessee, and so was the case cited by Serjeant Nicholls of 11 H. 7. but if the condition were of the part of the Lessor, otherwise it was, as the Book is in 26 H. 6. Entries. And then a For∣tiori here, the Assignee of a Disseisor cannot performe the condition, which may be performed of the part of the Lessor.

But he agreed the case of Littleton, that an Assignee of an Estate may perform a condition in preservation of an Estate, otherwise of an Assignee of a Reversion, in destruction of an Estate, so at the Com∣mon Law it is clear, that the Feoffee cannot perform the condition, and by him it is cleerly out of the Statute of 32 H. 8. for this Statute doth not extend to a collaterall condition, as it appears by Spencers case 5. Coke, and so hath been many times after this adjudged, and this is a collaterall condition, Ergo, &c. And so concluded, and prayed Judgment for the Defendant.

Nicholls Serjeant to the contrary, and that this Disseisin hath not suspended the condition, but that he may pay the Money, and make the Estate to cease notwithstanding the Disseisin, for-that, that the condition is collaterall, like to the 20 of Ed. 4. and 20 H. 7. That where a Feoffee upon a collaterall condition takes back an E∣state for years, yet this shall not suspend the condition, but it may be performed or broken, notwithstanding the Lease, for that that it is collaterall, so in our case, for suppose that the condition had been if he marry Mistris Holbeam, that then his Estate shall cease, and as well it shall be upon the Tender of the Money here, and he said that this case was late in the Common Bench. This feoffment was made to the use of the Feoffor for life, Remainder to another for life, the Remainder to the third in tayl, the Remainder to the right Heirs of the Feoffor in fee, with power of Revocation, and after the Feoffor lets for years, and during the Tearm he revokes the mesne Remain∣ders, and it seems to the Justices that well he may, for that that the Lease for years goes only out of the Estate for life, as he sayd, and for that the power of Revocation as to the Mesne Remainders was not suspended, Quere of the truth of this case in the common Bench, for perchance it is not truly collected, but so entred, and so he pray∣ed Judgment for the Plaintiff.

Flemming cheife Justice sayd, that the point of the principall case would be, if by the wrong of the Lessor the Estate of the Lessee shall be prevented to accrue, then he might perform the condition to determine the ancient Estate, that is, the Lease for years, and it is adjourned,

Pasch. 8. Jacobi 1610. In the Kings Bench. Earle of Shrewsbury against the Earle of Rutland.

IN a Writ of Errour, the Earle of Rutland brought an Assise of * 1.219 Novel Disseisin against the Earle of Shrewsbury and four others, and the Plaint was of the office of the keeping of the Park of Clep∣son, and of the vailes and fees of the sayd Parke, and of the Her∣bage and Paunage of the same, and the Demandant made his title, and alledged that the Queen Eliz. was seised of Clepsam Park in fee in right of her Crown, and that she being so seised by her Letters Patents under the great Seal, granted unto one Markham the kee∣ping of the Park of Clepson; with the vailes and fees; and the Her∣bage and Paunage of the same Park for his life, after the Queen Eliz. reciting the Grant made to Markham, and that Markham was alive, gave and granted by her Letters Patents, to the Earl of Rutland the Office of the keeping of the sayd Clepson Parke, with the Fees and Wages to that appertaining; to have and to hold to him for his life, after the death of Markham or after the surrender, or forfeiture of his Letters Patents, and further granted the Herbage and Paunage to the sayd Earle of Rutland for his life, and doth not say when this shall begin, after which the Queen Eliz. died, and the Eee-simple discended to our Lord the King, which-now is as lawfull Heir to the Crown of England, which granted that to the Earle of Shrewsbury, after which Mark∣ham dyed, and the Earle of Rutland entered, and was seised till the Earle of Shewsbury with four others entered upon him, and disser∣sed him, and to that the Tenants alledged no wrong no disseisin, and when the Assise was to be taken in the Country, the Array was challenged by the Tenants, for that that one of the Tenants in the Assise, had an Action of Trespasse hanging against the Sheriff, and this challenge was not allowed, and the Assise being perused at large for the Herbage and Paunage, they found, that the said Queen Eliz. was seised of Clepson Park as aforesaid, and by her Letters Patents as afore is rehearsed, granted the Keeping of this to Mark∣ham for his life, and further by the same Letters Patents granted to him the Fees and Wages to that belonging, and further granted by Letters Patents, and doth not say (Easdem) to him, the Her∣bage and Paunage of the sayd Park, and that the Queen after the reciting the Grant made to Markham, and that Markham was alive, granted to the Earle of Rutland the keeping of the sayd Park and vailes and fees, to have and to hold after the death, surrender, or forfeiture of the Letters Patents of Markham for his life. And

further by the sayd Letters Patents, shee granted the Herbage and Paunage of the same Park to him for his life, as more fully appears by the Letters Patents, and it was not expressed, as to the Herbage and Paunage when that began, and they found the death of Mark∣ham, and that the Earle of Rutland put two Horses into the sayd Park to take seisin of the sayd Herbage and Paunage, and they found further the grant of the King to the Earle of Shrewsbury of the fee-simple, and of that prayed the advise of the Court, and to the kee∣ping of the Park they found the seisin and disseisin of that, and of the fees and wages to the Dammages, &c. And this being adjourned into the Common Bench, was remanded into the Country, and there Judgment was given for all for the Demandant, and after this it came into the Kings Bench by Writ of errour, and the Errours assign∣ed by the councell of the Tenants, and argued at the Barr were foure.

The first was that the Earle of Rutland himself, between the ver∣dict and the Judgment hunted in the Park and kild a Buck, and took a shoulder of that for his fee, and so he hath abated his Assise, and so the Judgment was given upon a Writ abated, and therefore they cannot plead that in abatement, insomuch that it was mesne betwixt the Judgment and the verdict, they assigned that for er∣rour.

The second was, because the principall challenge was not allow∣ed, where that ought to have beene allowed, and the challenge was, that one of the Tenants had an Action or Trespasse hanging against the Sheriff before the Assise.

The third was, Because the Jury have found the Letters Pa∣tents made to Markham, and that the Queen granted to him by her Letters Patents the custody of the Parke of Clepson in Clepson. And further by the same Letters Patents granted the vailes and fees, &c. And further granted the Herbage and Paunage, and have not found that this was granted by the same Letters Patents, and then if this be not granted by the same Letters Patents, then there is not any grant of this to the Earle of Rutland, because there is no receitall of the Patent by which the Herbage and Pau∣nage was granted to Markham.

The fourth errour was, that they have erred in point of Law, and to that the point is but this, the King grants the Herbage and Paunage of a Park to one for life, and after reciting that grant, and that the Patentee is alive, grants that to another, and doth not say when that shall begin, and it seems to them that the Ar∣gument for the Plaintiffes in the Writ of errour, that this was a voyd grant, and so the Judgment erronious, but I have not the

Report of the Arguments of the Conncellors at the Barr, but on∣ly of the Judges, which moved two other errours in the case, not moved by the councell at the Barr, and Crooke Justice rehearsed the case as before.

And to the first errour he conceived that this is no errour, and that for two reasons,

First, He tooke a difference betweene a thing which abates the Writ by Plea, as if a man brings an Assise against another, and * 1.220 mesne between verdict and Judgment, the Plaintiff dies, this mat∣ter shall abate the Writ without Plea, and for that if Judgment be given upon such verdict, the Judgment is erronious, but in our case an entry doth not abate the Writ without pleading that, and now as this case is, this cannot be pleaded, being between Verdict and Judgment, and for that it shall not be assigned for Errour, see 19 Assise 8, Where this difference is taken, and agreed.

Secondly, Admit that this entry might have abated the Writ in Facto without Plea, yet there is no such entry alledged, which might abate the Writ in Facto without Plea, for the entry is alledg∣ed that the Earl of Rutland entred to hunt, and kild a Buck, and took a shoulder of that for his fee, and it seems that this is no such entry that shall abate the writ, for he hath now entred to another purpose to hunt, the which he could not do, but the entry ought to have been alledged that he entred to keep, for in every entry the intent of the Entry is to be regarded, and to this purpose he cited the case of Assise of Freshforce, Com. 92. and 93. Where entring in∣to the Seller hanging the Assise of that, to see the Antiquity of the House, there was no Entry to abate the Writ and the case of 26 As∣sise 42. where the Disseisee, hanging the Assise comes and sets his foot upon the Land, but takes no profits, and adjudged that he should recover notwithstanding, so in this case the intent is not shewed, that is, that he entred to keep possession but to hunt, nor was it such entry which should abate the writ, and to that which is sayd that he kild a Buck, and took the shoulder of that for his fee, this doth not help, for if that had been a Buck which he might to have kild by vertue of his Office, he ought to have shewed his warrant, for otherwise a Parker cannot kill a Buck if not that it be for his fee, and then he shall have the Buck, and not a shoulder only, also it is alledged that he took a shoulder, and doth not say the best shoul∣der or the right shoulder, and this ought to be shewed in cer∣tain.

And so for he first Errour he couceived that this is no cause to re∣verse the Judgment, and to the challenge he sayd, that he would speake to that at the last, and for that he now spake to the errours supposed in the grant.

And first to Markhams Grant, where the Jury found the Queen Eliz. granted to him the keeping of the Park, and by the same Let∣ters * 1.221 Patents grant the fees and Wages, and further granted by her Letters Patents, and doth not say (Easdem) the Herbage and Pau∣nage, it seems to him that this is very well, for two reasons.

First, insomuch that there is a copulative, which is this word (Et) and also a Relative, which is this word (Ʋlterius) and this word conjoynes the matter precedent with the subsequent, and the word (Ʋlterius) hath necessary relation to the same Letters Patents, and so Ex precedentibus & subsequentibus, the Iury hath well found the matter.

Secondly, these words are supplied in the second Patent, for there the Jury have found that the Queene hath granted that to Mar∣ham by the same Letters Patents, and so for these two reasons he * 1.222 concluded that this is no Error to reverse the Judgement: And to the Patent made to the Earle of Rutland, it seemes to him also, that this is very good, and all that he said in effect was, that in con∣struction of the Patents of the King, such exposition is to be made, that if any reasonable meaning may be conceived, they shall not be defeated but shall stand good: And so he said in our case, that it is necessarily intended that this was also to begin after the Estate of Markham determined, and for that good: And he said that a man ought not to make a curious and captious interpretation of the Kings Patents, for Talis Interpretatio injure Reprobatur: And to the * 1.223 challenge, that seemed unto him a principall challenge, and this not being allowed, where it ought to be allowed, this is an error, as it is said 8. of Assises 23. and for this error it seemes to him that the Judgement shall be reversed, and to that he said he relied much upon the book of 11 H. 4. 25. which takes a difference between Debt and Trespasse for battery, for the booke saith that a man may demand his Debt, without giving occasion of any malice: But Battery is an evill Action, and there the book is resolved, that it shall be a principall challenge, and so he saith in Trespasse, this being with force and Armes, that, &c. And in 8. H. 5. in a Assise, the Te∣nant challenges the array, because he had an Action of Trespasse hanging against the Sheriff: And there the array was affirmed be∣cause it appeares that the Defendant had brought this Action by Covin against the Sheriff, which case proves, as he said, that if there be not any Covin this is a principall challenge, and 38 H. 6. 7. accordingly, and the case 28. Assise 11. where the Defendant in Assise challenged a Juror, because he had an Action of Trespasse hanging against him, and was outed by award, and in 21. Ed. 4. 12. it is said where there is an apparent favour, or apparent dis∣pleasure, there shall be principall challenge, and certainly though

the Law may intend, that a man may lawfully demand his right, and without malice, yet it appeares that the nature of men is per∣verse and froward, and few Actions are begun without apparent displeasure, especially Actions of Trespasse, Pedibus Ambulando, and vexation plainly appeares, when Actions are begun upon such slight occasions, and in Actions of Trespasse there issueth a Capias for a Fine, and so the Defendant shall be Fined and Imprisoned, and sure to be deprived of his liberty is a thing distastefull.

And it cannot be but that displeasure shall be between them, which endeavour to restraine one the other of their liberty; and so he concluded that this was a principall challenge, and not being allowed this is error, and so for this cause he reversed the Judge∣ment: Also it seemed to him as this case is, there is no seisin found of the Paunage, for the Jury have found that the Earle of Rutland hath put in two Horses, and it seemes to him that Horses cannot take seisin of Paunage, which is properly meate for Hoggs, and so for this reason also, insomuch that there is no seisin found of the Pau∣nage, and the Jury ought to find of necessity a Seisin and Dessei∣sin, it seemes to him that this is error, and so the Judgement ought to be reversed, and at the same day Williams Justice rehearsed the case as before, and in his argument he spake.

First, to Grants. Secondly to the challenge.

Thirdly to the abatement of the Writ; And it seemes to him, that none of these matters were sufficient to reverse the Judgement, but yet he conceived for two other causes that the Judgement shall be reversed.

And first concerning Markhams Patent, that the Jury have found very good, though that they have not said by the same Letters Patents, but he said that it had been more proper if they had found that the King had granted that by the same Letters Patents, and for that he cited the case of Information of Mines in the Com. And the pleadings before the case, there the Letters Patents of the King are pleaded, and where the King grants divers things, it is there said, that the King by the same Letters Patents granted, and so the case of Grendon against the Bishop of Lincolne, where the King by his Letters Patents, granted to a Deane and Chapter that they should hold an Advowson to their proper use, and fur∣ther granted by the same Letters Patents, &c. And so he said in this case that this had been more properly found; if it had been found that the King (Per Easdem Litteras Patentes) granted, yet this is very good as it is, and this as he said by the Intendment, for it cannot be otherwise intended, and for that he cited the book of Entries in Title Covenant: That where a man brings a Writ of co∣venant, and counts upon an Indenture, that is, that the Defen∣dant

covenanted to do such a thing, and further covenanted, and doth not say by the same Indenture, yet this is very good because it cannot be otherwise intended, but when that is by the same In∣denture, and where things shall be taken by Intendment, he cited the case of 5. Assis. 2. Where in Assise of Common, the Plain∣tiff made him Title, that is, that he was seised after the Corona∣tion of King H. this shall be intended H. 3. See Brooke Limitation 4. and the Case of 17. Eliz Dyer 342, Where these Letters H. R. A. F. shall be intended Henricus Rex Angliae Franciae. &c. And he cited the case of 21. H. 7. 32. Where a man pleads a re∣lease made in Villa de West. the County of Middlesex, and doth not say secondarily, In Predicta Villa: And there these Justices held that good, and it shall be intended the same Town, so he said in this case, this shall be intended that Grant by the same Letters Pa∣tents (though that (Easdem) be left out: And to the Grant to the Earle of Rutland, he held that good, also though that it is not expressed as concerning the Herbage and Paunage when that * 1.224 should begin, and he said that this is also for the intent, and also he said that this is not in prejudice of the King, nor in deceit of the King, nor to the double Intendment, and for that good: And he put the case where the King made a Lease for one and twenty years rendring Rent, and doth not shew when that shall begin: That shall begin from the Date of the Letters Patents, because it cannot be otherwise intended, so in the principall case the grant of the Her∣bage and Paunage depends upon another Grant: That is, the custody of the Parke which was to begin after death, surrender, or, &c. of Markham, and having relation to that by this word (Ʋlte∣rius) that shall be necessarily intended to begin at the same time, and he well agreed the bookes of 3. H. 7. fol. the last, and 6. H. 7. 14. 8. H. 7. 1. 9. Eliz. 259. 7. Ed. 6. Dyer 80. That there is no reversion of an office: But yet the King may grant an office after the first Grant determined, and this shall be good: And so shall be in our case of the Herbage and Paunage, and he cited the case of 8 H. 7. 12. 13. where the King was Founder of an Abbey, and he had granted a Corody to another for life, and after he released that, and granted it to the Abbot, this shal not be a good release presently, because ano∣ther hath the possession for present of it, but this shall be good after the death of him which hath this granted for his life: And he cited the case of the Lord Chaundois 6. Coke, where the King grants the Mannor of Dale in tayl, and after grants the Mannor to another, this shall passe the reversion, for this is all that the King can passe: So he said in this case, this shall passe in such manner as it may passe, by which he concluded the Grant to the Earle of Rutland good: Also to the challenge, it seemed to him it is no principall challenge, * 1.225

and for authority he cited the case in 11. H. 4. That hath been ci∣ted of the other part, which was for him as he said, for this takes the difference between Debt and Battery, and 38. H. 6. a. Juror was challenged because one of the parties had an Action of Trespasse hanging against him, and this was not any principall challenge, un∣lesse it be Trespasse of Battery, and to the booke of 20. Assis. 11. Where a Juror was challenged, because he had Trespasse against him before the Assis. he said it did not appeare by the book, what Trespasse that was: So it shall be intended Battery, and he con∣cluded with this difference, that if such an Action be hanging which tends to the utter undoing of him, against whom it is brought, then if the Defendant in such Action make the array, this shall be a principal challenge, but if it be but such an Action in which a man shal recover but his Debt or Damages or such lawfull duties; there to say that such Action is hanging between them, at the time of the array made shall be no principall challenge: And for that he cited the book of 24, Ed. 3. Where a Tales was returned by the Sheriff of Middlesex, and the party challenged the Jury, because he sued the Sheriff for the death of his Servant, and this was a principall challenge, for in such case his life was in question; the same Law in case of Maintenance and Champerty, for the Law hath inflicted great punishment upon such Offences, so these matters tend to utter subversion of his Estate and life, but otherwise in Actions of Trespasse, and so he concluded no principall challenge: To the abate∣ment * 1.226 of the Writ it seemes no Error.

First he conceived that there is no entry, and for the reason that Crooke had given before, that is, because he entred to hunt, and not to keep possession, and hath not shewed any Warrant to kill the Buck, and he cited the book of the 5. of Ed. 4. fol. 60. Where Ba∣bington brought an Assise of the house of the Fleete, and hanging the Assise, Babington came to the Jury within the house (when they had the View) with his Councell to shew Evidence for the view, and this was not any entry to abate the Writ, and so the entry to hunt is an entry for another purpose then an entry to keep possessi∣on (not being by warrant as it is not found) and for that no en∣try to abate the Writ: But admitting that this had been an entry to abate the Writ, yet being a thing which doth not abate the Writ without Plea, and that cannot be pleaded as the case is, he conceived was no Error, but if it had been a thing which abated the Writ in Facto without Plea, then to give Judgement upon a Writ abated is Error: As if the party die hanging the Writ, or if a wo∣man sole brings an Assise, and takes a Husband hanging the Assise, * 1.227 or if the Plaintiff in a Assise be made Judge of Assise, as the 15. of Assise, in all these cases the Writ is abated in Facto without Plea:

But entry shall not abate the Writ without Plea, and so it seemes to him no error: But he conceived that there were two other errors, for which he reversed the Judgement.

The first was, that this Assise was de Libero Tenemento in Clepson, * 1.228 and the plaint was of the keeping of the Park of Clepsom and of the Herbage and Paunage of the Parke aforesaid called Clepsom, and made his Title for Herbage and Paunage of the Park of Clepsom, and so he conceived that there is variance between the Plaint and the Title and Park of Clepsom, and Clepsom cannot be intended one, without speciall averment, and for that he conceived it to be errour. And to that he cited the case of twelve Assises two. Where in attaint the first originall was of the Mannor of Austy, and the Attaint was of the Mannor of Auesty, and yet for that that the Attaint is founded upon the Record, and not upon the Origi∣nall, and the Record was of the Mannor of Auesty, this was very good, but the Booke saith, that this variance between the Origi∣nall and the Record, was sufficient to reverse the Record for errour, and the case in 42 of Ed. 3. Where Scire facias was brought of Te∣nements in Eastgrave, and the Fine was of Tenements in Deepgrave, and for the variance the Writ abated; and in the case of 5 Coke 46. Formedon was brought of the Mannor of Isfeild; and the Tenant pleads in barr a recovery of the Mannor of Iffeild, and this shall not be amended unlesse it appear that this is a misprision of the Clark or by other averment, he cited also the case of 3 H. 4. 8. Scire fa∣cias upon garnishment in a Writ of Detinue of writings, the Origi∣nall name John Scripstead, and the Scire facias was made Iohn Ship∣low, and therefore agreed that he shall sue a new Scire facias, so he said in the Principal case the Plaint being of Herbage and Paunage of Clepson Parke, aad the title being at Clepsom Parke, these shall not be intended to be the same Parke without averment, and there in no averment in our case, and for that such variance is such er∣rour, that shall reverse the Judgment.

The second errour for which he reversed the Judgment was that which was moved by Justice Crook that the Jury have not found any seisin of the Paunage, for it seemed to him that a Horse could * 1.229 not take Seisin of paunage, and for that he defined paunage, and he sayd that Linwood title-Tithes saith, the Paunagium est pastus Porcorum, as of Nuts and Akornes of trees in the wood, and Crompton saith, that this is, Pastus Porcorum, and he saith that Paunagium is either used for Paunage, or the Paunage it self, and the Statute of Charta de Foresta, saith; that every Freeman may drive his Hoggs, into our royall Wood, and shall have there Pau∣nage, but he doth not say Horses or other Beasts, but he conceived that if the Earle of Rutland had right in the Park, that this had been

sufficient seisin of Herbage and Paunage also, for Hoggs will feed upon grass as well as upon Akornes, and he cited the Book of 37 H. 6. saith that Seisin to maintain an Assise, ought not to be of a contrary nature to the thing of which seisin is intended to be given, but in one case only, and that is where the Sheriff gives seisin of a Rent by a Twig or by a Clod of Earth, and this is in case of necessi∣ty, for the Sheriff cannot take the Money out of the purse of the Tenant of the Land, and deliver seisin of that, and for that he ci∣ted the case in 45 Ed. 3. Where Commoner comes to the Land where he ought to have Common, and enters into the Land, and the Lord of the Waste or the Grantor of the Common outs him, he cannot have an Assise of his Common upon this outing, for this was not any seisin of the Common: so it is in this case, the Horses cannot take Seisin of the Paunage, and so there is no seisin or disseisin found by the Ju∣ry, and then no Assise, and this being after Judgment no abridg∣ment may be of the Plaint, and so for these last reasons he reversed the Judgment.

And at another day the case was rehearsed again and argued by * 1.230 Yelverton and Fenner Justices, but I did not hear their Arguments, insomuch that they spake so low; but their opinions were decla∣red by the cheife Justice, and Yelverton affirmed the Judgment in all.

First he held that this entry shall not abate the writ.

Secondly admit that it is abated, yet being between Verdict and Judgment shall not be assigned for errour.

Thirdly, he held that no principall challenge. * 1.231

Fourthly, he held both the grants good.

Fifthly, that Clepsam and Clipsam are all one, and not such vari∣ance that shall make Errour.

And lastly, that a Horse may well take Seisin of Paunage, and Fenner agreed in all, but he held that this was a principall challenge, and not being allowed this was Error, and for this cause and another exception to the Record, which was not much materiall, he rever∣sed the Judgment.

And at another day Flemming cheife Justice rehearsed the case, and this argued; and to the first matter he conceived.

First, That it is no such entry that abates the Writ. * 1.232

Secondly, Admitting that it were yet this cannot be assigned for Errour.

And to the first matter he took this ground, That every entry which may abate a writ ought to be in the thing demanded, and for that he sayd, if a man brings an Assise of Rent or common, and hanging this Assise, he enters into the Land, this is not any En∣try, which will abate the Writ, and he sayd that the Park, and

the keeping of the Park are two distinct things, and for that the entry into one, that is, the Park will not abate the Writ for the keeping of that, and to that which is sayd that he took a Fee, that is, a shoulder of a Buck, that doth not make any matter, for two reasons.

First, he hath not shewed a Warrant he had to kill the Buck.

Secondly the taking of the fee is no entring into the Office, but the excercising of that, but admit that this were an entry, or the thing it self, yet he sayd every entry into the thing shall not abate the Writ, and to that he sayd, that if this entry of the Earl of Rutland to hunt was no such entry that shall abate the Writ, for his office was not to hunt, and for that his entry being to another purpose, it shall not be sayd an entry to abate the Writ; and for that he cited a case, which hath been cited, as he sayd, by Justice Yelverton, that if a man have Common in the Land of J. S. be∣tween the Annunciation of our Lady, and Michaelmas, and the Com∣moner brought an Assise of his Common, and at Christmas▪ put in his Beasts and this shall not be any entry to abate his Writ, for it can∣not be intended for the same Common, which case is agreed to be good Law, and he cited the case put by Brooke in Assise of Freshforce before remembred Com. 93. Where hanging a Formedon, the Te∣nant pleads in abatement of the Writ, that the Demandant hath entred after the last continuance, and upon the evidence it appears, that many were cutting wood upon the Land, and the Demandant comes into the Land to them, and warnes them upon the perill that might ensue to them, that they should do no more then they could do by Law, and this was found no entry: Also the case of 26. Assise before cited by Justice Crooke, and he sayd that the Statute of Charta de Foresta, chapter 11. willeth, that every Arch-Bishop. Bishop, Earl, or Baron, comming to the King by his command, and passing by his Forrest, &c. Was licensed to take one Beast or two by the sight of the Keeper; &c. Put case then, that the King had sent for the Earl of Rutland, and he had passed through this Park, and had killed a Buck, had this beene an entry to abate this writ, Quasi diceret non, for this was entry to another purpose, so he sayd in the principall case the entry to hunt, and so no entry to abate the Writ, but admitting that this had been an entry, which would abate the writ, then let us see if this entry hath so abated the writ, being Mesne between the Verdict and the Judgment, it cannot be assigned for errour, and to that he agreed the diversity before taken * 1.233 by Crooke and Williams, where the writ is abated by Plea and with∣out plea, and he cited a Judgment in the Kings Bench, between Jackson and Parker 2 Eliz. where in Ejectione firme the Plaintiff en∣tred Mesne between Verdict and Judgment, and this was assigned

for Errour in the Exchequer Chamber, and the Judgment notwith∣standing affirmed, and he sayd that if Memorandum had been * 1.234 made of it, or if a Jury had found it, and it had been prayed that that might be Recorded, yet this had not been materiall, and that that be not assigned for Errour. And to the matter moved by my Bro∣ther Williams, that there should be a variance between the plaint and the Title, he conceived that there is no such variance, that shall make the Judgment errronious, and to that he examined the mat∣ter.

First that the Assise was of a Free-hold in Clepsom, and his title is made of the parke of Clipson, that that cannot be otherwise inten∣ded, but that of necessity it ought to be the same park.

For first there is but one park by all the Record.

Secondly, the plaint saith, De parco predicto, which hath reference to Clepsom park, and there is but one park put in view by all the re∣cord.

Fourthly, It shall be so taken according to the common spea∣king.

Fiftly, when he hath made his plaint of the custody of the park of Clepsom, and of the Herbage and paunage of the park aforesaid cal∣led Clepsom, these words (called Clepsom) are but Idle and Trifles, and that which is but Surplusage shall not annoy. Also he said that J. and E. are letters which do not much differ in pronunciation, and they are all one as I and he shall be pronounced as hi; and he ci∣ted the Book of 4 H. 6. 26. Where in Debt, variance was taken be∣tween the writ and the Obligation, that is, Quatuordecem pro Qua∣tuordecim, and this variance was not materiall, but that the writ was awarded good, and so he conceived that in this case the vari∣ance of Clepsom and Clipsom shall not be such a materiall variance, that shall make the Judgment erronious, and to the title.

First to Markhams grant, that is, where the Jury have found, Quod ulterius concessit, &c. And doth not say, Per easdem, he held that good without scruple, and this for the necessary relation, that this had to any thing before granted, for he sayd that this should be a strange and marvelous patent which begun in such a man∣ner, that is, Et ulterius Rex concedit, &c. And there was not any thing granted before. And for that he cited the case of 11 Ed. 4. 2. where Debt was brought upon an Indenture against the Abbot of Westminster, and the Indenture was between the Abbot of the Mo∣nastry of the blessed Mary of Westminster, and rehearsed divers Covenants, for performance of which Covenants, the Abbot of Westminster bound himself in twenty pound, and doth not say that the aforesayd Abbot, and yet good, for it shall be intended the same Abbot, for he is party to the Deed, and the case of 10 H. 7. 12.

Where in Assise of Common the plaintiff makes his plaint of Com∣mon appurtenant to his Free-hold in D. and shews for Title, that he was seised of a Messuage, and of a Carve of Land in D. to which the Common is appurtenant, and that he and his Ancestors, and all those whose Estates, &c. have used Common of pasture with ten Beasts, and exception taken to the title, because he saith that he was seised, and not saith, that he is, and yet good by this word (Fuit) for that shall be intended that he continues seised, so he sayd that things which are necessarily to be intended, though they be not so parti∣cularly expressed, yet shall be good by Implication, and so he conclu∣ded that this is no Error, for which the Judgment shall be reversed. And to the challenge, he conceived that this is not any principall * 1.235 challenge, and to that he put this difference, that if a man brings an Assise of certain Land, and hath an Action of Trespass hanging against the Sheriff for entring into the same Land, there shall be a principall challenge to the Array, but if it be for entry into other Land not in demand, otherwise it is, and what is principall chal∣lenge, and what not, he cyted the Bookes of 3 Ed. 4. 12. 6 Ed. 4. 1. 21 Ed. 4. 67. 14 H. 7. 1. 21. Ed. 4. 10. And to the point in que∣stion, he cyted the Bookes before remembred by Crooke and Willi∣ams and no others, and for that I omit to recite them, and he agreed also that in actions which concern life, Honesty, Mayme, Battery, to say that he hath such action hanging against the Sheriff, shall be a principall challenge, but Trespass for entring into Land not, for in Trespass there is no Land to be recovered, also no damages but to the value of the Trespass.

And in Debt a man shall recover more then in Trespasse: And yet it is agreed that this is no principall Challenge to say, that he hath an Action of Debt hanging against the Sheriff, as the Book of 11 H. 4. is, which hath been remembred, and for this I conceive it no * 1.236 principall challenge: And to the seisin of the Paunages, if a Horse may take seisin of that, it seemes that yea, for I conceive that the taking of seisin doth not consist in the eating or not eating of that, of which the seisin is to be taken, and for that he cited, that if a man grant to me the Herbage and Paunage of his Parke, and I come into the Parke and take the Grasse and Herbs into my hands, or if I gather Akornes, this is sufficient seisin for me to have Assise, though that I do not eate the Grasse, nor the Akornes, and for that, let us put the case that a man hath Herbage granted to him, and he puts in his Beasts, and before that they eate the grasse, they are driven out, none will deny, but that, that shall be good seisin, for so is the Book of the 22. Assise 84. Where a man hath Common granted to him, and he takes the Beasts of a stranger: and puts them in, and them forthwith drive out, that shall be a

good seisin of the Common to have Assise, so that he said, that the eating is not to purpose, also he said Horses will eate Akornes, as well as Cowes: And he saith that in the Country where he inha∣bits being a Wood-land Country, they will not suffer the Beasts to go into the Woods at a certaine time of the yeare, and this is when Crabs are ripe, for then their Beasts will eate Crabs, and set their teethes an edge, and then not being able to chew Akornes do swallow them whole, and then those Ackornes being swallow∣ed whole, will grow in the Mawe of the Beast, and so kill them: And he saith that though that Horses be not so proper Beasts, to take seisin of Paunage as Porkes are, yet being put in for the same purpose, if they are disturbed that shall be Seisin and Disseisin, and it seemes to him that when things are granted to one, that it shall not be strange to say, that seisin of one shall be seisin of both, and for that if a man grants all his arrable Land, all his Meadow, and all his Wood, Livery and Seisin in one suffices for all, but I conceive that this is in respect of the soyle which passeth, and so are all of one self same nature, and so he conceives that this is sufficient Sei∣sin and Disseisin found to have Assise.

And lastly to the Title of the Earle of Rutland, he said that this was good, and to the Grants of the King he said two things are necessary in all Grants of the King, that is, a Recitall, and a cer∣tainty, and when a recitall shall be necessary and when not, and he said that in all cases, when a common person makes a Lease for years or for life, and the reversion is conveied to the King, if the King will make Estate to another, he shall not recite this Lease, for this not being of Record, the King cannot take notice of it, and so he shall not recite: But in all cases when the King makes a Lease for life, or for years, and after will make a Grant to another, he ought to recite the first Estate, because that is of Record: And Justice Yelverton as I heard of those which were next unto him, put this case: That if the King grants a Lease for yeares rendring Rent, and after the King reciting the Lease grants that to another for years, or grants the reversion to another, and doth not recite the Rent which was reserved upon the first Lease, that this second Grant shall be void for the not recitall: And the cheife Justice ci∣ted one Phillpotts Case to be adjudged in the 2. of Eliz. That where the King made a Lease for one and twenty yeares, and after reciting the said Lease, grants the reversion to another, and before that the second Letters Patents were sealed, the first Lessee sur∣rendred: And said that the second Grant was adjudged void, for the King intended to passe a reversion, and now he shall have a Possession, and all that which is said to be in case of Land: Now let us see how it shall be in case of office, and for that if a common

person hath ••n office in Fee, and grants that for life, and after grants the Fee simple to the King, and the King will grant that to another, there he ought to recite the common persons Grant, as well as if it had been his one Grant, for there is not properly a reversion of an office, as the Book cited by my Brother Williams sayd.

Secondly if the office be recited in Esse, and be not in Esse, the Grant is void, as Blanyes Case is in the Lord Dyer 3 Eliz. 197. 47. And this sufficeth for recitalls: Then for certainty of the Kings Grant, it is said in the 2. R. 3. it is said that the Grants of the King ought to be made in certaine, and for that where the King there Grants to Sir John Spencer that he shall not be Sheriff, this was void, for the in∣certainty of the place: But if the Grant had been of such a County, or such a County, the Grant should be good: Also there ought to be certainty of Estates, as it is in 18. H. 8. Where the King gives Lands to one and his Heires Males, this is void for uncertainty of the Estate, then it is so averred in our case if there be not sufficient recitall and certainty, and to the recitall that is good without question, for she recites that she hath granted that to Markham for if••, and Markham is yet alive, and so the recitall good: Then for the certainty he said, that the rule is, that if the certainty be declared by expresse words, or if the King may reduce that to a certainty, the Grant of the King shall not be defeated, and for that he cited the case of Information of Mines Comment. But if the King grant to me all Mines in the Land of J. S. There I shall have all Mines Royall, for the Law saith, the King cannot have other Mynes in the Soil of a Subject but Mines Royall, and so there the Law supplies the Grant, so that they be Mines Royall, though not expressed in the Grant in certaine, so he said in the principall case, that the Queen hath expresly recited, that she hath granted the Herbage and Paunage for life to Markham, and that Markham was yet alive, and after grants that to the Earle of Rutland, and doth not say when that shall begin; the Law saith that shall begin after the death of Markham, for before that it cannot begin: But if the Queen had exprest in the Letters Patents, that this shall begin forthwith, then this had been void, as the Lord Gaudy said in Altonwoods Case, 1 Coke fol. 51. And so he concluded the Title of the Earle of Rutland good: So he affirmed the Judgement in all: But Williams was very peremtory for the conceit of Paunage that it was not good Seisin: But after Crooke Justice recanted his opinion of that, and insomuch that there were three which conclu∣ded for the reversing of the Judgement: And yet for every point there were three against two: It was doubted if this Judgement should be reversed or not: And they said that they would advise

with the rest of the Judges, and after that it was moved againe by Serjeant Nicholls in the next Trinity Tearme, and Yelverton and the cheife Justices would have the Judgement affirmed, but Williams, Fenner, and Crooke, to be reversed, and note well this President, where Judgement was reversed, and yet for every point there were three Contra two, or foure Contra one, see the first Judgement in the Common Bench Michaelmasse 6. Jacobi afterwards.

Termino Pasche 7. Jacobi, 1609. In the Kings Bench. Trinity Colledge Case.

THE Case was this; King Henry the eight Incorporated the * 1.237 Schollers of Trinity Colledge in Cambridge by the name of Ma∣sters, Fellowes, and Schollers: Collegij Sanctae et Individuae Tri∣nitatis, in the Town and University of Cambridge, and in the 6. Ed. 6. They made a Lease by the name of Master, and Fellowes of Trinity Colledge in Cambridge, leaving out the University: And if this Lease were good or not was the question; And Yelverton ar∣gued that this was not a good Lease, and that for the misnaming of the Corporation: And to that he said, to every Corporation, two things were incident: That is, name and place: and if any of those fayl and be not certainly recited in a Lease, the Lease shall not be good: And he conceived that this Corporation is founded upon two places, and that one of them: That is, the University is left out, and for that cause the Lease is nothing worth, for if a Cor∣poration hath two names, one of them cannot be omitted, as it is in the first of Mary Dyer 96, 97. and 4. Mary 140. and 150. 11. Eliz. Dyer 278. 35. H. 6. 5. and 6. No more then when it consists of two places one of them may be left out: And for that, if they had been incorporated by the name of Master and Fellowes of Trinity Colledge in Norfolke and Suffolke in a Lease, they could not leave out Norfolke or Suffolke, but both the places ought to be incer∣ted: And by him in the principall case, if the Lease had been made by the name of the Master and Fellowes of Trinity Colledge in the Town, and leave out the University of Cambridge, without questi∣on, this shall be void, so here this being impliedly omitted shall be as strong, as if it had been by expresse words excluded, so in the making of every Corporation, the intent of the Founder is to be considered, and for that it seemes the intent of the King in pla∣cing that in both places, was first to erect a Colledge, and that to grace the Town, and then he hath placed them in the University, and this was for the instruction in good Arts and Learning, and so for these benefits they have of both these places, nor one nor the

other may be left out: And if the King had been incorporated by the name of Master and Fellowes of Trinity Colledge in Cam∣bridge, and in the Market place of Cambridge: There though that the Market place was parcell of the Town of Cambridge, yet it seemes to him that this cannot be left out, for peradventure the Founder hath a speciall reason to place that there, that is, to have all things necessary for them more neer unto them: Also where any stranger demands any possession of them in Precipe Quod Reddat, or such like, he ought to ensue them certainly and precisely: Then a Fortiore where they depart with their possessions by their own Act, there they shall not be unknowing of their one names: And Walter of the inner Temple argued to the contrary, and he concei∣ved * 1.238 that the Lease is good, and first he argued the ground which hath been taken of the other part, that is, that every corporation ought to be in a certain place, and he conceived that there is a certaine place in this place, that is, the Town of Cambridge: And to that, that is said that this Corporation is founded upon two places, he denied that all together, for no more then one mate∣riall Body, may be but in one place Simul and Semel, no more may it be in a Body Corporate, which hath allwaies his resemblance to a Body naturall, and for that he denied the case, which hath been put of the other part, of Norfolk and Suffolk: And he cyted the opinion of the Lord Popham in Buttons Case, in which the Lord North was Interested, that a Corporation cannot be limited to a County, as Probos Homines of such a County, or Trinity Col∣ledge in such a County, but it ought to be restrained to some cer∣taine place, or one County, or a Town: But admit that the Corporation may be founded upon two places, yet he faith that a University is not Locall, but Personall: And to this purpose he cyted two Records one, in 48 H. 3. Which was this: King H. 3. Intending to keep a Parliament at Oxford, and knowing that the place was not sufficient to contain all those, which should be there assembled, and the Schollers together, sent his Writ which was directed to the Chancellor and University of Oxford, commanding them that they should remove the University to such a place, till the Parliament should be ended: And after he sent his Writ to them againe, which was directed to the Chancellor and Universi∣ty, by which he wild that they should returne againe, the Parlia∣ment being ended, by which Writ he conceived that it appeares that the University was not Locall: And this for two reasons.

First insomuch that this Writ was directed to the Chancellor and University, and every Writ is directed to a person and not to a place.

Secondly the Writ that he should move and remove the Univer∣sity,

which is a thing impossible to do if it should be a place: The other Record was 49. Ed. 3. And this declares, that there was contention between the Schollers of Cambridge and the Townes∣men there, and the Schollers went to Northampton, and there they made a Petition to the King, that they might erect a Uni∣versity, and the King sent his Writ to the Maior, commanding him that he would not suffer the Schollers to remaine there, and that he would there erect a University, which proves that a Uni∣versity may be erected at the Kings pleasure, and so cannot a place, then admitting that a Corporation may consist upon a place, yet the University not being a place, that shall not be any prejudice to omit it: And he cited a case which was adjudged as he said, in the 26. of Eliz. which was thus; The Deane and Canons of Win∣sor made a Lease for years by the name of Deane and Canons of new Winsor: And this was adjudged no variance, and the case of 5. Ed. 4. 5. of the Abbot of Saint Maries in York which see there, and he said the Lord Norths Case was thus: That Christ Church in Oxford was incorporate by the name of Deane and Canons of Christ Church in Oxford: And they made a Feoffment by the name of the Deane and Canons of Christ Church in the University of Ox∣ford, and adjudged a good Feoffment: And he said that in the ar∣gument of this case it was said by Gaudy, that if a corporation were made of Dale, and after Dale is made into a City, they may make a Lease by the name of a City of Dale, and the Lord Pop∣ham (as he said) put these cases: That is, that if a Corporation be founded of Oxford: And that they made a Lease by the name of, &c. In the Precincts of Oxford, this shall be a good Lease, yet a thing may be within the Precincts of another place, and not in the place, and in the 32. Eliz. was the case of one Jermin and Wylles, that if a Corporation be made, by the name of Deane and Chapter of Saint Maries in Exceter is good: But they agreed in this case as he said, that if it appeare that they cannot be intended allone, otherwise it should be, and he conceived in the principall case, that it is not necessarily that it should be intended the same place, and for that he conceived in all those cases that the Lease shall be good, and he said that there were neer two hundred Lea∣ses upon the same Title, for which, &c.

And after this it was argued in Michaelmasse Tearme 1609. 7. Jacobi by the Justices: And the opinion of Crook and Williams Justices was, that the Lease was good: But Fenner and Yelverton to the contrary, and Flemming cheif Justice argued that the Lease was not good; but he said this should not be absolutely his opinion, but moved a composition betwixt the parties: But insomuch that the matter was not compounded, in the same Michaelmasse Tearme,

Judgement was praied: And Williams Justice brought into the Court a decree out of the Court of Wards concerning the Case which is put in 7. Eliz. Dyer and 1. Coke Porters Case: And upon the decree appeares, that an Information being exhibited there against the Master and fellows of Trinity Colledge in Cambridge concerning certain Land they made Title to, by a Devise made to them, by the name of Masters, Fellows and Schollers, of Trinity Colledge in Cambridge, and this Devise was made, four and five of Phil. and Mary, and the Decree recyted, that upon this were two great Doubts and Questions conceived.

First, If this Devise were good, and also by the Statute of 1. and 2. Phil. and Mary, which inabled to devise to spirituall Corporati∣ons.

And the second point was, That where they were incorporated by the name of Master, Fellows and Schollars De sancta and Indivi∣dua Trinitate, in the University and Town of Cambridge, if this devise made to them by the name of Master, Fellowes, and Schol∣lers of Trinity Colledge in Cambridge was good, and the Decree rehearsed, that the opinion of all the Justices in England was.

First, That it was a good Devise within the Statute of one and two Phillip and Mary, as it is reported in the Booke before ci∣ted.

Secondly, That this was not such a mis-naming of the Corporati∣on which made the Devise voyd, and Williams Justice produced this Record, as he sayd to fortify his opinion: And he conceived no difference between a Grant and a Devise, nor no difference when an Estate or conveyance made unto them, and conveiance made by them, and for that he cited the Case in the 19 H. 8. in Dyer, where if a man devise Land to the Abbey of Saint Peters, where the foun∣dation is Saint Paul, this is a voyd devise, and so in a grant. And Crooke Justice, to the same Intent. Yelverton Justice to that * 1.239 Decree shewed by my Brother Williams, I conceive a great Diffe∣rence.

First a Will and a grant, for in case of a Will, it sufficeth if they be described by a name, by which the Intent of the Devisor may be sufficiently known, and a man is intended to be Inops consilij at the time of the Devise made, and for that that he hath not any to in∣struct him o•• the precise name of the Corporation for which, &c. And Fenner Justice to the same intent, and if a man devise to one, * 1.240 and his Assignes, as it is a Fee-simple in case of a Devise, so it is not in grant, and so devise to one and his Children, is an Estate Tayl in case of Devise, but not in a grant: Flemming cheife Justice to the * 1.241 same intent, and to the Decree he sayd, that this is as good Law,

as ever he heard in his life, but yet he conceived also, that there is a great difference between a Grant and a Devise, as if a man devise to a Monke the Remainder over, this is a good remainder, so devise to one the Remainder over, and the particular Tenant refuse, this is good in a Devise, contrary in grant, and to the case which is put by my Brother Williams out of the 19 H. 8. Dyer, there is a great difference, where there is not any such person at all to take, there the Devise shall be void, as where the Devise to the Abbot of Saint Peter, where the foundation is of Saint Paul, and where it is a person certain, but all the name is not so precisely recyted, and to that which is sayd by my Brother Williams, that no difference be∣tween conveiance made to them and by them, I agree to him with this difference, that is, if conveyance be made to them, of what by presumption in Law they are knowing, and are parties as a Fine levied to them, and such like, but of a Devise it is not presumed, that they have knowledge of that till the Death of the Devisor, and he conceived that the Lease is voyd, and this Decree shewed, hath not changed his opinion, but he moved the parties again to an agree∣ment, and would not as yet give Judgment.

Hitcham the Queens Attorney, moved the Court for a Prohibiti∣on, * 1.242 and the case was this, two Merchants covenanted by Deed with their Factor to allow him ten pound a Moneth for his Wages, and one Merchant sealed the Deed in England and the other sealed that upon the Sea, and the Factor came and sued the Merchants in the Admiralty for his wages, and by the Court insomuch that one of them sealed it upon the Land, this is not any thing done upon the Deepe Sea, and for that Prohibition was granted to him.

Upon a Motion made by Wincolt of the Middle Temple to dissolve * 1.243 a Prohibition granted to the spirituall Court, upon a Libel for Tithes, there the Court took this rule, that when a Consultation is lawful∣ly granted, there a new Prohibition shall not be granted upon the same L••bell, and yet they qualified that with this difference, that is, when a Consultation is granted upon any fault of the Prohibiti∣on in form by the M••sprision of the Clark, or by mis-pleading of any Statute in that, or such like, there a new Prohibition may be gran∣ted upon the same Libell, but if Consultation be granted upon the right of the thing in question, there a new Prohibition shall not be granted upon the same Libell, see the Statute of 5 Ed. 3.

Pasch. 9. Jacobi 1609. In the Kings Bench.

BRomehead and Spencer Plaintiffs, Rogers Defendant, where an Action of Debt was brought by the Plaintiffs against the Defen∣dant

as Administrator during the minority of one J. S. and the Plaintiffs shew in their count, that the said J. S. at the time of the Writ brought, was, and yet is within age of one and twenty years, and verdict passeth against the Defendant, and Crewe mo∣ved in arrest of Judgment, that the Declaration was insufficient, for they have declared that the Executor was within the Age of one and twenty years, and the Administration during the nonage shall cease when the Infant comes to the Age of seventeen years, so that he may be of the age of 17. 18. 19. or 20. years, and yet the Administra∣tion ceaseth, and so of Action against Administrator, and so was the Opinion of all the Justices, and the Judgment was stayed upon that, according to the resolution of Piggotts Case 15. Coke 29. a.

PLomer against Hockhead, the Plaintiff declares in Ejectione firme, * 1.244 upon a Lease made to him by three Husbands and their wives, and that the Defendant ejected him, and at the Issue upon not guilty, and in evidence to prove this Lease, and the delivery of that, was shewed a Letter of Attorney made by the Husbands and their wives, and the councel of the Defendant takes exception to the Declaration, for they have declared upon a Lease by three Husbands, and their Wives, with a Letter of Attourney to make delivery, and a married Wife cannot make a Letter of Attorney: And so this is not a Lease of the Wives, and so the Plaintiff had declared upon no Lease: And the opinion of all the Court was, that a married Wife could not make a Letter of Attorney. And Williams Justice com∣pared this to the case of an Infant, as if an Infant makes a Feoffment or a lease, and delivers that with his hand, this is not, but void∣able: But if it be executed by Letter of Attorney, that is a dissei∣sin to him, but by Flimming and Williams, if the Plaintiffs had declared upon a Lease made by the Husbands only; this had been very good.

Thomas Malin Plaintiff in Replevin against Thomas Tully, the case was; The Queen Mary was seised of a Park called Eestwood * 1.245 Park in her Demesne as of Fee as in Right of her Crown, and so being seised by her Letters Patent's, let the said Park to two for their lives, and after died: And the Queen Elizabeth by her Letters Pa∣tents recyting the said Lease for lives, and that the said Lessees were alive, granted the said Park to Humphrey Lord Stafford and his Wife, and to the Heires of the said Lord Stafford of the Body of the said Wife lawfully begotten: And by the said Patent the same Queen by these words, Ac de Ampliori et Ʋberiori Gracia, Nostris Volu∣mus et Declaramus, quod si Predictus Dominus Stafford, Solvat seu Solvi faciat prefacto Dominae Reginae 20 s. ad tal••m Diem, Tunc

Concedimus, quod predictus Dominus Stafford habebit revertionem predictam sibi et Heredibus suis: And the Lord Stafford paid the said sum of twenty shillings according to the said Letters Patents, and if he shall have Fee-simple or not was the question. And it was ob∣jected that he shall not have it, for the words of the Patent are; that if the Lord Stafford paies the money, Tunc concedimus, the which words seeme that the Grant shall take effect, in futuro, and it was not a present Grant, but when the money shall be paid then shee granted, but it seemes to the Justice, that it was a good Grant immediatly to take effect upon the payment of the money, and the condition was precedent, till that be performed the rever∣sion remaines in the Queen Eliz. And the Queen might grant by one selfe same Patent as by diverse: See 10. Assise 13. 7. Ed. 3. 8. Ed. 2. Feoffments, and that the reversion shall not extinguish the E∣state Tayl, but they may well be together, but otherwise it is of an Estate for yeares or for life.

Warburton Justice, that the King is specially favoured in the Law, * 1.246 and for that he shall not be inforced to attend in case, as other per∣sons ought to make attendance: And for that in case where a common person may make a good Grant, the King also may make a good Grant, and in the case at the Barr, if the Grant had been made by a common Person, it had been good without question: But the first objection that hath been made was, that where a man hath made a Lease for life or for years, upon condition to have Fee, there the particuler Estate shall be drowned upon the increasiing of the Estate, but the Statute of Westminster 2. preserves the Estate tayl that it shall not be drowned, and that the Fee in this case doth not vest till the condition be performed, for if the Lessee for years or life, surrender before the performance of the condition, the Fee doth never increase, as it is 14. H. 8. 20. and the Lord Chandois Case, 6▪ Coke: But the Estate tayl remaines after the condition performed, and then hath the Fee dependant upon the Estate tayl, and that there is a necessity that there shall be an office, as it was in Nicholls Case in the Com because of the right and that after the condition performed then the Fee shall vest, Ab Initio, and this corporates together partly by the Letters Patents, and partly by the performance of the condition, and so it is in Butler and Bakers case that it is not a Grant in futuro, but one immediate Grant to take effect In futuro, see 2. H. 7. for the execution of Chantrey and Grendons Case in the Com. and 2. H. 7. If the King grant Land to J. S. for life, the remainder to the right Heires of J. R. which is in life, the remainder is good, as well as in case of a common per∣son, and so he seemed that Judgement shall be given for the Plain∣tiff.

Walmesley Justice agreed, that it shall be remainder and not re∣version, * 1.247 as if Lands begin to the Husband and the Wife and to the Heires of the Body of the Husband, the Husband dies, this is a remainder, in the Heires Males and not a reversion, for it cannot grow higher, and it was not in the King as one distinct Estate, before the Grant, and Formedon in remainder lieth for it, and though it be misrecited yet it shall be good, and ayded by the Sta∣tute of Misrecitalls, and grant of a thousand is suffered to convey the reversion of a thousand by the common Law; and if the recitall were that it was a reversion depending upon the Estate tayl, it was good without question, and the King may grant five hundred re∣versions if he will, and that the last (Damus) is ex certa scientia et mêre motu nostris, Damus et concedimus, that if the Patentee pay twenty shillings, Tunc sciatis, quod nos de ampliori gracia ea certa scientia et mero motu, nostris concedimus, &c. and that the word Volumus will amount to a Covenant or a Release, as 32. H. 6. The King by his Patent by these words (Nolent) that he shall be im∣pleaded, and this amounts to a release, and so words which in∣tends expresly words of Covenant may be pleaded as a Grant in case of the King, as it is 25 Ed. 4, So is a common person license ano∣ther to occupy his Land, this amounts to a Lease of Land if the time be expressed, so if a man grants to another that he shall have and injoy his Land to him and his Heires, that by that Fee passeth: And if the King grant reversion to begin at Michaelmasse, the Grant is void, for that it is to begin totally at Michaelmasse, and doth not looke back to any precedent thing: But if it relate to any precedent Act, then that shall be good by relation, and shall passe ab Initio; see Com. Walsinghams Case 553. b. that in such case the performance of the condition divests the Estate out of the King, and there is no difference in this case betwixt the King and a com∣mon person, and agreed in the case of Littleton: Where a man makes a Lease for yeares upon condition to have Fee, that the Fee shall not passe till the condition be performed, and with this agrees 2. R. 2. But if a man makes a Charter of Feoffment, upon condi∣tion, that if the Feoffee injoy the Land peaceably for fifteen years, that the Feoffment shall be void: In this case the Fee-simple de∣termineth by the performance of the Condition, and in this case the Fee passeth, ab Initio, by the Livery as in 10. Assise 18. Assise 1. 44. Assise 49, Assise. And he agreed that the words Habeat et Teneat the Reversion passes, and this is good Fee-simple, and this refers to the first Damus et Concedimus, and so concluded that he seemed that Judgement shall be given for the Plaintiff.

Coke cheife Justice accordingly, and he conceived that there are two questions upon the substance of the Grant.

And to the first objection, that hath been made, that is, that reversion was granted, and increase of an Estate cannot be of a reversion, and in all these cases which have been put they are of an Estate in possession, and so is the case of Littleton also, and he agreed that it shall not be good, if it be not good, ab Initio, that though there be not other words then Reversionem predictam: That it shall be good.

And to the second point upon the former: He conceived that the Grant is but a Grant, and that the condition is but prece∣dent Limitation, when the Estate of Fee-simple shall begin, and so it is said by Montague, in Colthurst and Brinskins Case in the Com. And further he saith that there are four things necessary for increasing an Estate.

First, that it ought to be an Estate, upon which the increasing Estate may increase.

Secondly, the particular Estate ought to continue, for otherwise it is grant of a reversion in Futuro.

Thirdly, That the Estate which is to increase ought to vest by the performance of the Condition, for if there be disturbance that it can∣not then vest, then it can never vest.

Foutthly, that both the Estates as well the particular Estate as the Estate which is to increase ought to have their beginning by one self same Deed, or by diverse Deeds delivered at one self same time.

And to the first and to prove that he cyted 44 Ed. 3. Attaint 22. Lessee for yeares upon condition to have Fee, granes his Estate, the Fee doth not increase upon the performance of the con∣dition, for then it shall passe as a Reversion, and so the particu∣lar Tenant surrenders his Estate, as it is sayd 14. H. 8. For if the Privity be destroyed the Fee will never increase, but there is no such ••ycity, but that if the substance of the Estate remains, though it doth not remain in such form, as it was at the first Reversion, the Estate may well increase, as if Lands be given to the Husband and wife and to the Heirs of the Husband, upon the Body of the Wife to be begotten, the Wife dies, and the Husband is Tenant after possibili∣ty of Issue extinct, yet he may well perform the condition, for the Estate remaines in substance, and with this agrees, 20 H. 6. Ayd; and so it is if a Lease be made to two for years upon condition to have fee, one dies, the other may perform the Condition, and shall have Fee-simple, as it is agreed by 12. Assise 5. the reason is that the pri∣vity remaines and the Estate also in substance.

Thirdly, As to that also, it seems that it ought to vest upon the performance of the condition, which is the time limited for the beginning of the Estate, and if it do not vest then, it shall never vest, and if it do not vest without Office in this case, it shal never vest

at all, but it is for the Honour of the King, that his grant shall have his effect, and 49 Ed. 3. 16. Isabell Goodcheaps case, she de∣vised her Lands to her Executors to be sold, and dyes without Heir the King hath that by Escheat, yet the Executors may sell it, and for that divest the Estate out of the King, and so was the Lord L••∣vells Case, and the reason is for the necessity, for the Prerogative of the King shall do no wrong, and there need no continuance of the Estate of the part of the Lessor, but of the part of the Lessee, and for that if the Feoffor make a Feoffment, or grant his Estate, this shall not make prejudice or alteration of the Estate, and for that if the King refuse to receive the Money▪ yet if it be tendered the Fee-simple shall vest in the Patentee, and the simple upon that shall shall increase, see 31 Ed. 1. Feoffments and Deeds B. 32. Quid Iuris Clamat be.

And to the fourth it seems also, that both the Estates ought to be created and granted by one self same Deed, or by divers delivered at one time, Quia quae in continenti fiunt pro uno habeantur & re∣putentur, as if a man makes a Lease for years upon Condition to have in tayl, upon condition to have in Fee, this second condition is void, for it ought to be all one Crant, and cannot be intire, up∣on the privity of the first grant, and it is not material though that the first Estate be drowned upon the performance of the condition, as if the King makes a Lease for life, the Remainder in tayl upon con∣dition, that if the Tenant for life pay twenty shillings, that he shall have Fee, this shall be a good Grant, and the Fee well vested by the performance of the condition, though that the particular Estate for life shall not be drowned.

And to the second point, that is, that the Grant of the King shall not be good, for that that it is by the words, Reversion afore∣said, he agreed that if the King makes a Grant to one intent, that shall not enure to another intent: But this shall enure to the intent for which it is made, Ʋt res magis vale et quam periat, and it is for the dishonor of the King, to make an unconscionable Grant. And to the Objection which is made, that the King is not understanding of Law, to that he answered, that the King is (Caput Legis) and for that shall not be intended to be ignorant of it, and for that if a grant may have two intendments, one to make the Grant good, the other to make the Grant voyd, it shall be intended, and expounded in the better sense, that is, to make the Grant Good, and not to make the Grant voyd, for this was Iniquae expositio, and also he sayd that the Grant shall be good for the first word (Concedo) though it had not been subsequent also, as if a man grant a Rent charge, and if it be behinde, that the Grantee may distrain for the first Grant, and the Grant is not of a Reversion In futuro, but grant

that if the condition be performed that then the Fee doth pass In fu∣turo, and it seemed to him, that it was a good devise to prevent that the Estate tayl should not be discontinued by Fine nor other∣wise, untill the Condition were performed, and so of recovery al∣so; for if the King grant an Estate tayl, and after grants the Rever∣sion in tayl, this second intayl is within the intent of the Statute, and when the Issue of the first Tenant in tayl shall not be barred, the Estate of the Tenant in tayl in Remainder shall not be barred, see the Lord Barkleys case in the Com. fol and 7 Ed. 4. and as to the pleading he sayd, that when the Issue is offered, which de∣pends upon matter in Law, there is no necessity to take travers upon the matter in Law, for it doth not belong to lay men to decide the matter in Law, and for that he concludes, that the Grant in sub∣stance is good, and in form exquesite, and that the Issue in tayl in Reversion shall not be barred, for Quod non in principio valet, non valebit in accessario, and that Judgment ought to be for the Plaintiff, which was done accordingly.

IN Ejectione firme against Gallop, after Verdict and Judgment for * 1.248 the Plaintiff a Writ of Habere facias Possessionem was awarded and executed, and returned and fyled, and after the same Defendant re-entred and outed the Plaintiff, and Attachment was awarded, and it seems that if the Writ had not been returned, that then a new Writ shall be awarded, and the Attachment was awarded upon Affidavit.

IN Action upon the case against Trotman, the words were, Thou * 1.249 sayest thou art an Attorney, but I think thou art no Attorney, but an Attorneys Clark in some Office, but if thou be an Attorney I will have thee pickt over the Barr the next Tearme, and thy Eares nailed to the Pillory, and it seems that these words are not Actiona∣ble.

IN waging of Law of Summons in Dower, In petit Cape, there * 1.250 ought to be two summons only, and if it be Grand Cape, then there ought to be two Summoners and two Veiwers, and Summons upon the Land is sufficient to give notice of the Demandant, of the thing demanded, and the day in Court. That in Waging Law, the * 1.251 Lord Coke sayd, that the Defendant himself ought to swear, De fidelitate, and elev••n others, which are named in the Statute of Magna Charta, chapter, Testes fideles ought to swear De creduli∣tate.

IF Tenant for life be the Remainder in tayl to another; the Re∣mainder in Fee to the Tenant for life, and the Tenant for life re∣leases * 1.252 to the Tenant in Tayl, the Release is good to passe the Re∣mainder in Fee to the Tenant in Tayl, for to this purpose the Tenant in tayl hath sufficient possession, upon which the Release may enure, but it shall not be good to pass the Estate for life, and 19 H. 6. and 9 H. 7. If Tenant in Tayl in Remainder, Disseise Tenant for life, he doth not gain Fee-simple by Fulthorp, but if there be Grand-Father, Father, and Sonn, and the Father makes a Feoffment the Grand-Fa∣ther dies, the Father dies, the Sonn is barred, so if the Sonn had levied a Fine being Tenant in tayl, 33 and 39 H. 6. 43. a. 21 Ed. 4. Discontinuance.

Pasch. 7 Jacobi, 1609. In the Common Bench. Warbrooke and Griffin.

BEtween Warbrooke and Griffin, a Guest brought a Horse into an Inne in London to be kept, the which stayed there so long, till * 1.253 he had eaten out his Worth, and then the Inn-Keeper caused the said Horse to be prysed, and then sold him according to the custome of London, and it seems well he might do it, and that the Sale was lawfull, for the Inne-Keeper, as to the Person of his Guest ought to receive him, and he is compellable to do it, as it is 5 Ed. 4. 2. and 22 Ed. 4. And for his Goods he ought to keep them safe, and of the other part the Guest ought to pay the Inne-Keeper, as well for the meat of his Horse as for his own, as it is 28 H. 6. And it should be inconvenient that he should be put to his Action for, &c. And for preventing this mischeife, the Inne-keeper may detaine the Horse of his Guest, till he be satisfied, and it seems to Coke cheife Justice, that an Inne-Keeper is not chargeable with the Goods of any, which is not lodged in the Inne, and the Goods must be lost by default of the Inne-Keeper, and that the Inne-Keeper is not compellable to receive the Horse of any, if the Master be not lodg∣ed, and if a Neighbour of the Inne-Keeper come to the Inne-Keeper he shall not answer for the Goods, for he is not lodged, but as a Tipler, and so if an Inn-Keeper invite any to his House Ad Prau∣dendum aut Caenandum, the Inne-Keeper shall not be charged, as it 35 H. 8. For it was agreed that the Guest ought to averr that he was lodged in the Inne. And Foster Justice sayd, that it was adjudged in the case of one Perin of the Black Swan in Holborne, that by the custome of London, an Inne-Keeper may sell a Horse which remaines with him to be Kept, and hath eaten more then he is Worth, and so it was sayd by Foster, that where a Haberdasher

of London came to an Inne, and there sold divers Hats, and after went to a Faire, and left divers other Hats in the Inne, the which in his absence were stollen, and the Inne-Keeper should not answer for them, for that that the Haberdasher was not lodged in the Inne at that time, and this was the Case of one Coley in the 25. of Eliz. But Sir Edwin Sands lodged in an Inne and there left a Trunck, and went to meet the Kiug, the Trunck remaining in the Inne, in his absence it was stollen, and the Inne-Keeper was charged, Quere the Difference, if the Owner desire that his horse should go to grass, the Inn-Keeper shall not answer, but if an Inn-Keeper receive the horse, and of his own head puts the horse to grass, and he is stoln, there the Inn Keeper shall be charged, and though the Inne-Kee∣per deliver the Key of the Chamber to the Guest, yet the Inne-Kee∣per shall answer for the goods which are stollen, for it is an imply∣ed promise of every part, that is, of the part of the Inne-Keeper, that he will preserve the Goods of his Guest, and of the part of the Guest, that he will pay all duties and charges, which he caused in the house, and that the Inne-Keeper may retain (without cu∣stome, by the Common Law, the Horse of the Guest as a pledge till he be satisfied of all dues, and so a Tayler, and Goods taken in Withernam, But the Inne-Keeper cannot work the horse of his Guest in such a case, nor sell his Goods though that they be Bona pe∣ritura.

Trinity 7. Jacobi, 1609. In the Common Bench. Colledge of Phisitians Case.

THOMAS Bonham brought an Action of false Imprison∣ment * 1.254 against Doctor Alkins and divers other Doctors of Phi∣sicke: The Defendants justified, that King H. 8. Anno Decimo of his Reigne, founded a Colledge of Phisitians, and pleaded the Let∣ters Patents of their Corporation.: And that they have Authority by that to chose a President, &c. as by the Letters Patents, &c. and then pleads the Statute of 32 H. 8. chapt. 40. And that the said Doctor Alkins was chosen President, according to the said Act and Letters Patents, and where by the said Act and Letters Patents it is provided, that none shall practise in the City of London or the Suburbs of that, or within seven miles of the said City, or exercise the faculty of Phisicke, if he be not to that admitted by the Let∣ters of the President and Colledge, sealed with their common Seale, under the penalty of a hundred shillings, for every Month (that he not being admitted) shall exercise the said faculty, further we wiland grant for us and our Successors, that by the President and

Colledge of the Society for the time being, and for their Successors for ever, that they may chose foure every yeare, that shall have the overseeing, and searching, correcting, and governing, of all in the said City being Phisitians, using the faculty of Medecines in the said City, and other Phisitians abroad whatsoever using the falculty of Phisicking by any meanes frequenting and using, within the Ci∣ty or Suburbs thereof, or within seven miles in compasse of the said City, and of punishing them for the said offences, in not well ex∣ecuting, making, and using that: And that the punishment of those Phisitians using the said faculty, so in the premisses offending, by Fines, Amercements, Imprisonments of their Bodies, and by other reasonable and fitting waies shall be executed: Note the pre∣amble of these Letters Patents is, Quod cum Egregij officij nostri munus arbitremur, ditionis nostrae, Hominum selicitati omni ratione Consulere: Id autem vel inprimis fore, si improborum conaminibus tempestave occurramus, apprime necessarium fore duximus, impro∣borum quoqur hominum, qui medicinam Magis avaritiae snae causa, quam ullius bonae conscientiae fiducia profitabuntur undi Rudi et cre∣dulae plebi plurima incommoda oriuntur, audaciam compescere. And that the Plaintiff practised in London, without admission of the Colledge, and being Summoned to appeare at the Colledge, and examined if he would give satisfaction to the Colledge according to the said Letters Patents and Statute, he answered that he had received his decree to be Doctor of Phi••ck by the University of Cam∣bridge, and was allowed by the University to practise, and con∣fest that he had practised within the said City, and as he conceived, it was lawfull for him to practise there, that upon that the said Pre∣sident and Commonalty fined him to a hundred shillings, and for not paying of that and his other contempt, committed him to Pri∣son, to which the Plaintiff replied as aforesaid, and upon this de∣murrer was joyned: And Harris for the Defendant, saith, that * 1.255 this hath been at another time adjudged in the Kings Bench, where the said Colledge imposed a Fine of five pound upon a Doctor of Phisick which practised in London without their admission, and for the non payment of that, brought an Action of Debt, and adjudg∣ed that it lay well, and that the Statute of 32. H. 8. extends as well to Graduats, as to others, for it is generall, and Gradiots are not excepted in the Statute, nor in the Letters Patents, and all the mischeifes, intended to be redressed by this, are not expressed in that, and the Statute shall not be intended to punish Imposters on∣ly, but all other which practise without examination and admit∣tance, for two things are necessary to Phisitians, that is, learning and experience, and upon that there is the proverb, Experto cre∣do Roberto: And the Statute intends that none shall practise here

but those which are most learned and expert, more then ordi∣nary: And for that the Statute provides, that none shall practise here without allowance and examination by the Bishop of London and the Deane of Pauls, and four learned Doctors: But in other places the examination is referred only to the Bishop of the Diocesse, and the reason of the difference is, for that, that London is the hart of the Kingdome: And here the King and his Court, the Ma∣gistrates and Judges of the Law, and other Magistrates are resi∣dent, and with this agreed the government of other well governed Cities in Italy and other Nations, as it appeares by the preamble of the said Letters Patents: and it appeares by the Statute, that this was not intended to extend to Imposters only, for that that the word Imposter is not mentioned in the Statute: And the Statute provides that they shall be punished, as well for doing and using, as for ill using: And also it is provided that the Statute of 1. Marie 1. Parliament, chap. 9. That the Gardians, Goalers, or Keepers of the Wardes, Goales, and Prisons within the City and precinct of that, shall receive into his Prison all such person and per∣sons so offending which are sent or committed to them, and those safely shall keep without Bayl, till the party so committed, shall be discharged by the said President, or other person by the said Col∣ledge to that authorised, by which it appeares, that the Goa∣lers, Keepers of Prisons, have power to retain such which are com∣mitted: That then the President shall have power to commit, for things Implyed are as strong as things Expressed; as it appeares by the Com. Stradlinge and Morgans Case: And also in the Earle of Leicesters Case, where it is agreed, that Joynture before Coverture cannot be waved, and this is implyed within the Statute of 27. H. 8. And so the Statute of 2. Ed. 6. Provides that after seven yeares Tythes shall be payd, by which it is Collected by Imply∣cation, that during seven yeares, Tythes shall not be payd; and so he prayed Judgement for the Defendants.

Dodridge Serjeant of the King, for the Plaintiff said, that the Sta∣tute of 24▪ H. 8. chap. 5. and the Letters Patents gives power to four Censors to punish for ill executing, doing, and using the faculty of a Phisitian, and the Plaintiff was not charged for ill executing of it, doing or using: But it is averred, where Revera the Plain∣tiff was nothing sufficient to exercise the said Art, and being exa∣mined, lesse apt to answer, and thereupon they forbade him, and being sent for and not appearing, was amerced five pound, and order that he should be Arrested, and being Arrested, upon his appearance, being examined if he would submit himselfe to the said Colledge, he answered and confessed, that he had practised with∣in the said City, being a Doctor of physick as aforesaid, as wel

to him it was lawfull, and that he would practise here againe, for which he was committed to Prison: So that he was amerced for his contempt in the using of the said Art, and committed to Prison for his answer upon his examination: And he conceived that there are two questions considerable.

First, if the Colledge may restraine a Doctor of phisick of his practise in London.

Secondly, admitting that they may, then if these are the cau∣ses for which they may commit by their Letters Patents; the first rea∣son is drawn from the Letters Patents, and the said Statutes, in which he said that the intent of the King was the end of his work: And this intent shall be expounded for three reasons ap∣parent * 1.256 in the words contained in the Grant.

First, Intempestive Conatibus occurrere.

Secondly, Improborum Hominum, qui medicinam Magis avari∣tiae suae causa, quam ullius bonae Conscientiae fiducia profitebantur, audaciam Compescere.

Thirdly, which would invite learned men to practise here, and for that would, quod Collegium prefectum Doctorum et graviorum virorum qui medicinarent in urbe nostra Londino et suburbibus infra septem millia passium in urbe quaq•••• versus, publice Exerceant institui volumus et imparamus: And further he said, that there are three sorts of men, which meddle with the Body of a man.

First, is the learned man which reades all Bookes extant, and his knowledge is speculative, and by that he knew the nature of all sim∣ples.

And the second is practive, the knowledge of which is only his experience, he may give Probatum est: But the ignorance of the cause of the disease, and the nature of the things which he applies for the cure of that.

And the third is an Imposter, which takes upon him the knowledg which he hath not, and every of them the Colledge may punish, for Male utenda, faciendo vel exequendo, by what way they will: And this was not the first care which was had, for in the 9. H. 5. was a private Act made for Phisitians, by which there is great re∣gard to them which are learned and educated in the University: And for that the Act provides that they shall not be prejudicall to any of the Universities of Oxford and Cambridge, and with this agrees 3. H. 8. 11. and the priviledges of them, and the Docti et graves homines, mentioned in the Letters Patents, are the lear∣ned men mentioned in the Act, for the Statute provides that they shall punish according to these Statutes, and late edicts: And by the former Lawes the Universities, that their priviledges were excepted, and by their former Statutes, the Letters Patents

ought to be directed, for it is referred to them: Also the Sta∣tutes of this Realme have alwaies had great respect to the Gradiats of the Universities, and it is not without cause, for Sudavit et Al∣sit, and hath no other reward but this degree which is Doctor, and for that the Statute of 21, H. 8. prefers Graduates, and pro∣vides that Doctors of Divinity or Batchelors shall be capable of two Benefices with Cure without dispensation: And so 13. Eliz. pro∣vides that none shall be presented to a Benefice above the value of thirty pound per annum, if he be not a Doctor or Bachelor of Divi∣nity: And to the objection, that none shall practise in London or seven miles circute of it without licence, that this clause shall be expounded according to the matter, and to that he agreed, for the other branches of the Statute are made to cherish grave and learned men, and for that it shall not be intended, that this branch was made for the punishment of those, but of others which the Statute intended to punish.

And to the second objection, that every Doctor is not the learned and grave man intended within the Statute, for the know∣ledge of many of them is only speculative without practise, to that he answered, that all their Study is practise, and that if they have no practise of themselves, then they attend upon others which practise, and apply themselves to know the nature of Sim∣ples.

And to third objection, that in London ought to be choyce men, for the Statute appoints that they shall be examined by the Bishop and Deane and four others at least, and for that there is a more strict course for them, then in other places, to that it is agreed: But he said that in the University there is a more strict course then this, for here he ought to be publickly approved by many after that he hath been examined and answered in the Schooles, to di∣verse questions, and allowed by the Congregation house: And 35. H. 6. 55. Doctor is no addition, but a degree, (quia grada∣tim et progress••one Doctrine provenit, to that, and that Doctor is teacher, and that he was first taught by others as Scholers, after∣wards he is Master, and Doctor dicetur a docendo, quia docere per∣mittitur, and they are called Masters of their faculty, and that the Originall of Doctor came of the Sinagogue of Jewes, where there were Doctors of Law; and it appeares that they had their cere∣monies in time of H. 1. And when a man brings with him the En∣signe of Doctrine, there is no reason that he should be examined againe, for then if they will not allow of him, he shall not be allowed, though he be a learned and grave man, and it was not the intent of the King to make a Monopoly of this practise.

And to the second point that he propounded, it seemes that

the Justification is not good, which is, Quia non comperuit, upon Summons, he was amerced, and ordered that he shall be arrested, and being arrested, being examined if he would submit himself to the Colledge, he answered that he was a Doctor, and had practised and would practise within the sayd City, as he conceived he might lawfully do, and for that shewing of this case he was committed to prison, and he conceived two things upon the Charter.

First, That it doth not inhibit a Doctor to practise, but punish∣eth him for ill using, exercising, and making, and may imprison▪ the Emperick and Imposter, and so prayed Judgment for the Plain∣tiff, and after in Hillary Tearm, in the same year, this case was argued by all the Justices of the Common Bench, and at two severall dayes, and the first day it was argued by Foster, Daniell, and War∣burton Justices, at whose Arguments I was not present, but Foster argued against the Plaintiff, and Daniell and Warburton with him, and that the Action of false imprisonment was well maintainable. And the second day the same case was argued again by Walmesley Justice, and Coke cheife Justice, and Walmesley argued as followeth, that is, * 1.257 that the Statute of 3. H. 8. was in the negative, that no person with∣in the City of London or seven Miles of that, take upon him to exercise or occupy, as Physitian or Chirurgion, &c. And he doth not know in any case where the words of the Statute are negative, that they admit any Interpretation against that but one only, and that is the Statute of Marlebridge chapter 4. Which provides that no Lord shall distrain in one County, and the beasts distrayned drive into another County, in which case though that the words are uegative, yet if the Lord distrain in one County, he may drive the Beasts to his Mannor in another County, of which the Lands, in which the distresse was taken were held, but it is equity and rea∣son in this case, that the Statute should admit such exception, for it is not of malice, but for that, that the Beasts may remain with∣in his Fee, but in the principall case there is not the like reason nor Equity, And also the King H. 8. in his Letters Patents recites as fol∣loweth, that is, Cum Regij officij nostri munus arbitremur, ditio∣nis nostri hominum felicitati omni ratione consulere, id autem vel im∣primis fore, si Improborum conatibus tempestive occurremus, appri∣me necessarium duximus improborum quoque hominum, qui medici∣nant magis avaritiae sue. causa quam ullius. bonae conscienti•• fiducia profitebantur, &c. By which it appears, that it is the Office of a King to survey his Subjects, and he is as a Phisitian to cure their Maladies, and to remove Leprosies amongst them, and also to re∣move all fumes and smells, which may offend or be prejudiciall to their health, as it appears by the severall Writs in these severall ca∣ses provided, and so if a man be not right in his Wits, the King

is to have the Protection and Government of him, least he being infirme, wast, or consume his Lands or Goods, and it is not suffici∣ent for him that his Subjects live, but that they should live happy∣ly, and discharges not his Office, if his Subjects live a life, but if they live and flourish, and he hath care as well of their Bodyes as of their Lands and Goods, for Health for the Body is as necessa∣ry as vertue to the minde, and the King H. 8. to express his extra∣ordinary care of his Subjects made the said Act, in the third year of his Reigne, which was the beginning of his Essence, to that purpose, and by the Common Law, any Phisitian which was al∣lowed by the University might practise and exercise the sayd faculty within any place within England, without any dispensation, exa∣mination, or approbation of any, but after the making of the sayd Act made in the third year of King H. 8. none may practise, exercise, or occupy as Phisitian or Surgion within theCity of London and seven miles of that, if he be not first examined, approved, and admitted by the Bishop of London, and the Dean of Paules for the time be∣ing, calling to them, foure Doctors of Phisick or Chirurgions, &c. And that no practiser may occupy or exercise the sayd faculty out of the sayd Precincts, if he be not first examined, approved, and admitted by the Bishop of the Diocess, or in his absence, by his Vicar ge∣nerall, every of them calling unto him such expert persons in the said faculty, as their discretions thinks convenient, and the reason of this difference as he conceived, was for that that in this City, and the sayd Precincts, the King and all his Councell, and all the Judges and Sages of the Law, and divers other men of quality and condition, live and continue, and also the place is more subject un∣to Infection, and the Heir more pestiferous, and for that there is more necessity, that greater Care, diligence, and examination be made of those which practised here in London and the precincts aforesayd, then of those which practise in other places of the Realm, for in other places the People have better aire, and use more exer∣cise, and are not so subject to Infection, and for that there is no cause that such care should be used for them, for they are not in such danger, and in the Statute there is not any exception of the Universities nor of those which are Gradiats there, and for that they shall be tryed by the sayd Act, and the Statute of 14 H. 8. chapter 5▪ Only excepts those which are Gradiats of Oxford or Cam∣bridge which have accomplished all things for the form without any Grace, and if this Exception shall be intended to extend to others, then all the University shall be excepted by that, and such excepti∣on was too generall; and over he sayd, that the Plaintiff gave absurd and contemptous answer, when he being cyted before them, sayd that he would not be ruled nor directed by them (being such grave

and searned men▪ & for that that he hath practised against the Statute he was worthily punished and committed, for it should be a vain Law if it did not provide punishment for them that offend against that, and Bracton saith, Nihil est habere Leges, si non sit un••s qui potest Leges tueri, and for this here are four grave and discreet men to defend and maintain the Law, and to punish all Offenders against that, according to the Statute, by Imprisonment of their Bodies and other reasonable wayes, and the sayd four men have the search as well of those men, as of other Mediciners, and the Sta∣tute of 1 Marie provides that the Keepers of Prisons, shall receive all which committed by the sayd four grave and learned men, and though there be great ••are committed to them by the sayd Statute, and the sayd Letters Patents, yet there is a greater trust reposed in them then this, for we commit to them our lives, when we receive Phis••ck of them, and that not without cause, for they are men of Gravity, learning, and Discretion, and for that they have power to make Lawes, which is the Office of the Parliament, for those which are so learned may be trusted with any thing, and for the better making of these they have power to assemble all the Commons of their Corporation, and the King allows of that by his Letters Patents, for it is made by a Congregation of Wise, learned, and dis∣creet men, and the Statute of 1 Marie inflicts punishment upon Contempts, and not for any other offences, and they held a Court, and so may commit as every other Court may for a contempt of com∣mon right, without act of Parliament, or Information, or other le∣gall form of proceeding upon that, as it appeares by 7 H. 6. for a contempt committed in a Leet, the Steward committed the Offen∣der to Prison, and it was absurd to conceive that the Statute will allow of commitment, without cause, and it is a marvelous thing that when good Lawes shall be made for our health and Wealth also, yet wee will so pinch upon them, that wee will not be tryed by men of experience, practise, and Learning, but by the University, where a man may have his Degree by grace without merit, and so, for these reasons he concluded that this Action is not maintain∣able.

Coke cheife sayd, that the Cause which was pleaded for, that * 1.258 the Plaintiff was committed, was for that that he had exercised Phisick within the City of London by the space of a Moneth, and did not very fitly answer, for which it was ordained by the Censors that he should pay a bundred shillings, and that he should forbear his pra∣ctise, and that he did not forbear, and then being warned of that, and upon that being summoned to appear did not appear, and for that it was ordayned, that he should be arrested, and that after he was summoned again; and then he appeared, and denyed to pay the

hundred shillings, and he sayd that he would practise, for he was a Doctor of Cambridge, and upon that it was ordained that he should be committed, till he should be delivered by the Doctors of the Col∣ledge, and upon this was the Demurrer joyned, and in pleading the Plaintiff sayd, that he was a Doctor of Philosophy and Phisick, upon which the Lord took occasion to remember a saying of Gallen, that is, Ʋbi Philosohpia desinit, ibi medicina incipit, and he sayd the only question of this case depends not upon the payment of the sayd hundred shillings, but upon the words of the Letters patents of the King, and the said two Statutes, the words of which are, Conces∣simus eidem presidenti, &c. Quod nemo in dicta Civitate, aut per septem milliaria in circuita ejusdem exerceat dictam facultatem, nisi ad hoc, per dictum presidentem & communitatem seu sucscires, eorum qui pro tempore fuerunt, admissus sit, per ejusdem presidentis & Col∣legij titeras sigillo suo commui sigillat as sub paena centum solidorum pro quolibet mense quo non admissus eandem facultatem exercuit, dimidi∣um inde nobis, & heredibus nostris & dimidium dicto presidenti & Collegio applicandum, & preteriá volumus & concedimus pro nobis, &c. Quod per presidentem & Collagium communitationem pro tem∣pore epistentium, & eorum successores in perpetuum, quatuor singu∣lis annis per ipsos eligantur, qui habeant supervisum, scrutinium, & correctionem & gubernationem omnium & sigulorum dictae Civita∣tis medicorum utentium facultate, medicinae in eadem Civitate, ac aliorum medicorum, fornisicorum quorumcun{que} facultatem illam me∣dicinae, aliquo modo frequentantium & utensium infra eandem civita∣tem & suburbia ejusdem sibi septem milliarea in circuitu ejusdem Ci∣vitatis ae putationem eorundem pro delectis suis, in non bene exequen∣do, faciendo & utendo illa, nec non supervisum & scrutinium hujus∣modi medicorum & eorum receptionem, per predictos medicos sive ali∣quem eorum hujusmodi legeis nostris pro eorum; Infirmitatibus curandis & suavandis, dandis imponendum & utendis quoties & quando opus fu∣erit, probo modo & utilitate eorundem legiorum nostrorum; Ita quod punitio hujusmodi medicorum utentium dicta facultate medicinae sic in premissis de linquentium, per Fines Amerciamenta, Imprisonamenta corporum suorum & per alas vias rationabiles & Congr••as exeqnan∣tur, as it appears in Rastal Phisitians 8018. 392. So that there are two distinct Clauses.

The first, if any exercise the sayd Faculty by the space of a Moneth without admission by the President, &c. shall sorfeit a hundred shillings for every Moneth be that good or ill, it is not materiall, the time is here only materiall, for if he exercise that for such a time, he shall sorfeit as aforesayd.

The second clause is, that the President, &c. Shall have Scruti∣nium Medicorum, &c. & punitionem eorum pro dilictis suis in non

bene faciendo▪ utendo & exequend••, &c. And for that the President and the Colledge may commit any delinquent to Prison: And this he concluded upon the words of the Statute, and he agreed with Walmesley, that the King hath had extraordinary care of the health of the Subjects. Et Rex censetur habere omnes Artis in ser∣mo pectoris, and he hath here pursued the Course of the best Phi∣sitians, that is, Removens & promovens, removens Improbos illos, qui nullis bonae conscientiae fiducia profitabantur & audaces, & pro∣movens ad sanitatem: And for that the Phisitian ought to be pro∣found, grave, discreete, grounded in learning, and soundly Stu∣died, and from him commeth the medicine, which is removens & promovens.

And it is an old rule, that a man ought to take care, that he do not commit his Soul to a young Divine, his Body to a young Phisiti∣an, and his Goods or other Estate to a young Lawyer, for in Juve∣ni Theologo est Conscientiae detrimentum in Juveni Legislatori bur∣si detrimentum et in Juveni Medico Cimitorij incrementum, for in these cannot be the privity, discretion, and profound learning which is in the aged: And he denied that the Colledge of Phisitians is to be compared to the University, for it is subordinate to that, Cantabrigia est Academiae nostrae nobilissima totius Regni occulus, et sol ubi humanitas et doctrina simul fluant: But he said, when he names Cambridge he doth not exclude Oxford, but placeth them in equall Rank: But he would allwaies name Cambridge first, for that was his Mother: And he saith that there is not any time, Pro non bene faciendo, utendo et exequendo for this, non suscipit Manus et Minus, for so a man may greviously offend in one day, and for that in such a case, his punishment shall be by Fines, amerce∣ments. Imprisonments of their Bodies and other waies, &c. But if practise well, though it be not an offence against the Letters Pa∣tents and the Statutes yet the punishment shal be but pecuniary, and shall not be Imprisoned, for if he offend the Body of a man, it is reason that his Body shall be punished, for Eodem modo quo quis delinquit, eodem punietur, but if a grave and learned Doctor or other, come and practise well in London by the space of three weekes and then departs, he is not punishable by the said Col∣ledge, though that they be without admition, for peradventure such a one is better acquainted with the nature and disposition of my Body, and for that more fit to cure any Malady in that then an∣other which is admitted by the Colledge, and he said that it was absurd to punish such a one, for he may practise in such manner in dispite of the Colledge, for all the Lords and Nobles of the Realme, which have their private Phisitians, which have acquain∣tance with their Bodies, repaire to this City, and to exclude those

of using their advise, were a hard and absurd exposition, for the old verse is, Corporis auxilium medico committe sodali: And also he said that the said President and Colledge cannot commit any Phi∣sitian, which exerciseth the said faculty without admission, for the space of a Month, nor bring their Action before themselves, nor levy that by any other way or meanes: But ought to have their Action or exhibit an Information upon the Statute, as it appears by the Book of Entries, for they ••ught to pursue their power which is given to them by the Statute, for otherwise the penalty being given, the one Moytie to them, and the other to the King, they shall be Judges in Propriacausa, and shall be Summoners, She∣riffs, Judges, and parties also; which is absurd▪ for if the King grant to one by his Letters Patents under the great Seale, that he may hold Plea, although he be party, and if the King doth not ap∣point another Judge, then the Grantee which is party, the Grant is void, though that it be confirmed by Parliament, as it appeares by 8. H. 6. 44. Ed. 3. The Abbot of Readings Case, for it is said by Herle in 8. Ed. 3. 30. Tregores Case, that if any Statutes, are made against Law and Right, and so are these, which makes any man Judge in his own cause, and so in 27. H. 6. Fitz. Annuity 41. that the Statute of Carlile will that the order of Cistertians and Augustines, which have Covent and Common Seale, that the Common Seale shall be in keeping of the Prior, which is under the Abbot, and foure others which are the most Sages of the house, and that any Deed sealed with the Common Seale which is not so in keeping shal be void, and the opi∣nion of the Court that this is a void Statute, for it is impertinent to be observed, being the Seale in their keeping, the Abbot cannot seale any thing with it, and when that it is in the hands of the Ab∣bot, it is out of their keeping, ipso facto: And if the Statute shall be observed, every common Seale shall be defeated by one simple surmise, which cannot be tryed, and for that the Statute was ad∣judged void, and rep••gnant: And so the Statute of Glocester which gives Cessavit after Cesser by two yeares to be brought by the Lessor himselfe, was a good and equitable Statute: But the Sta∣tute of Westminster 2. chap. 3. which gives Cessavit to the Heire for Cesser in time of his Ancester, and that, that was Judged an unreasonable Statute in 33. Ed. 3. for that, that the Heire can∣not have the arrerages due in the time of his Father, according to the Statute of Clocester, and for that it shall be void: And also the Physitians of the Colledge, could not punish any by Fyne and al∣so by Imprisonment, for no man ought to be twice punished for one offence, and the Statute of 1. Mariae doth not give any power to them to commit for any offence which was no offence within the first

Statutes, and for that he ought not to be committed by the said Statute of 1. Mariae: But admitting that they may commit, yet they have mistaken it, for they demand the whole hundred shil∣lings, and one halfe of that belongs to the King: And also they ought to committ him forthwith, as well as Auditors which have Authority by Parliament, to commit him which is found in arrerages: But if he do not commit him forthwith, they cannot commit him afterward, as it appeares by 27. H. 6. 9. So two Justices of the peace may view a force and make a Record of that, and commit the offenders to Prison, but this ought to be in Fla∣granti Oriente: And if he do not commit those immediately upon the view, he cannot commit them afterwards, and the Physitians have no Court, but if they have, yet they ought to make a Re∣cord of their commitment, for so was every Court of Justice: But they have not made any Record of that: And Auditors and Justi∣ces of Peace, ought to make Records, as it appeares by the Book of Entries: So that admitting that they may commit, yet they ought to do it forthwith, but in this case they cannot commit till the party shall be delivered by them, for this is against Law and Justice; and no Subject may do it, but till he be delivered by due course of Law, for the commitment is not absolute, but the cause of that is traversable, and for that ought to justifie for speciall cause, for if the Bishop returnes that he refuses a Clark, for that he is Schismaticus Inveteratus, this is not good, but they ought to returne the particuler matter: So that the Court may adjudge of that: Though it be a matter of Divinity and out of their Science, yet they by conference may be informed of it, and so of physick: And they cannot make any new Laws, but such only which are for the better government of the old; and also he said plainly, that it appeares by the Statute of 1. Marie: That the former Statutes shall not be taken by equity, for by these the President and Com∣mons have power to commit a Delinquent to Prison, and this shall be intended, if they shall be taken by equity, that every Goaler ought to receive him which is so committed: But when it is pro∣vided by 1. Marie, specially that every Goaler shall receive such offenders: That by this appeares, that the former statute shall not be taken by equity: And so he concluded, that Judgement shall be entred for the Plaintiff, which was done accordingly.

Trinity 7. Jacobi, 1609. In the Common Bench.

IN Debt upon escape brought by John Guy an Attorney of the * 1.259 Common Bench, by an Attachment of priviledge against Sir George Reynell Kt. Deputy Marshall of the Prison of the Kings Bench, the

Defendant pleads his priviledge, that is, that he was Deputy Mar∣shall, and he ought not to be sued in other Court, then in the Kings Bench, according to the ancient Custome, and Jurisdiction of the sayd Court, upon which the Plaintiff demurred, and upon argument of both parties, it was adjudged that the Defendant should not have his Priviledge, and the principall reason was, for that the Plaintiff was an Attorney, and ought to have his priviledge in the Common Bench, and for that that this Court was first possessed of the Suit, it shall not be stayed, because of the Priviledge of the Defen∣dant in another Court, see 9 Ed. 4. 53. the last case, where it is agreed, that one of the Courts may send Supersedeas to another, for there it is agreed that if an Accountant in the Exchequer be sued in the Common Bench, he shall send Supersedeas to them to surcease, and if he be sued in the Kings Bench, these of the Exchequer will shew the Record that he is accountable, for they cannot make Su∣persedeas to the King, and the Plea is there held Coram Rege, &c. And he shall be dismissed, for he may be sued in the Exchequer; and also 10 Ed. 4. 4. b. It appears that if one which hath cause to have priviledge in the Common Bench sue an Attachment, as our case is, against a Clark of the Kings Bench, such Writ shall not be al∣lowed, for that that the Common Bench was first seised of the Plea, by their Plea, and the Priviledge of the common Bench is as ancient as the Priviledge of the Kings Bench, and one Court is as ancient as the other, for every of them is before time of memory, and it is by prescription.

Walmesley sayd, that the Possessory shall be preferred, Quia me∣lior est conditio possidentis, but he agreed that if the priviledge of one Court be not so ancient as the other, then the most ancient shall be preferred, and it was agreed that though there be Difference in respect of parties, or though that the attendance of one be of more necessity then the other, as it was objected in this Case; that the Defendant ought to attend, otherwise he shall loose his office; to that it was answered, and resolved that the cause of the Suit in the Common Bench was voluntary, and the attendance of the At∣torney or Clark more necessary, then of the Defendant, for hee may exercise his Office by a Deputy, but a Clark or an Attorney cannot, for their office is Opus Laboris, But the Office of the De∣fendant is only Opus Labrum, and he is to deal with Gyves and I∣rons and such like, so that in this Case the Office and place of a Clark or Attorney is to be preferred before the Office of Marshall, but ad∣mitting that one Inferiour Officer of the Common Bench, which is to have his priviledge sue a superiour Officer of the Kings Bench which is also to have his Priviledge there, this shall not make any

difference: And so was the opinion of all the Court, and upon this, Judgment was given that the Defendant should answer over.

Trinity 7. Jacobi 1609. in the Common Bench.

IN Assise between William Parson alias Chester Plaintiff, against * 1.260 Thomas Knight alias Rouge Cross tenant for the office of one of the Heraulds called Chester, the Recognitors of the Assise had view at a * 1.261 Funerall at Westminster, where the Officer ought to attend, and it was objected that this was no good view, for it was not in any place certain, where the Recognitors may put the Demandant in Possessi∣on, and the Disseisin was alledged to be at Westminster at the sayd Funerall, and it seems that the view was good, but admitting that it were not good. It seemes to Coke cheif Justice, that the As∣sise in this case well lies without view, for the Office is universall, as * 1.262 the Office of the Clark of the Market, and an Assise for Tithes, and the Office of the Tennis Court, these are universall, and not annex∣ed to any place, and for that an Assise wel lies for them without view, but for an Office in the Common Bench, view may well be made in the Court, for the Court is alwaies held in a certain place, but for an Office in the Kings Bench, Quere, Inquit Coke, for this ought to follow the Court of the King by the Statute of Articuli Cleri, Chapter 3.

But Walmesley Justice, that this Court cannot be sitting in Clouds, * 1.263 but in some place or other, and for that the view ought to be here made, and then Coke sayd, by the same reason the Office of the Herauld cannot be exercised in the Clouds, but at Funeralls, and by this the view ought to be made there also, but the Opinion of all the Court was, that the view was well made: the Tenant in Assise also challenged diverse of the Recognitors, for that they were of a * 1.264 former Jury upon the same question, and this was agreed to be a principall cause of challenge, but the Court would not allow of that without shewing the Record, but allowed that to be a cause of challenge for favour, and for that they were tryed by their Com∣panions, being sworn to speak the Truth, and they were found to be indifferent, and for Seisin for the Demandant in the Assise, it was shewed that diverse Fees were due to the sayd Office, as seven pound for every day that he attended upon the Kings person, and for the Dubbing of every Knight, and that diverse of those Fees were received (and this office being litigious) were delivered to be detai∣ned in Deposito, and to be delivered to him which was Officer, and the plaintiff brought an Action by the name of Chester as Officer and recovered those Fees, and this was resolved good Seisin, and also that Seisin after the grant of the Office, and before the investing of

the Patentee by the Marshall was good, for the Investing was but a ceremony, it was also resolved that where an office extends to all the parts of England, and that here an Assise doth not lie in any County, though that the dissesin were made in one County, but the Assise be brough for the profit of the office in one County and not for the office it selfe, 43. Ed. 3. Feoffments and Deeds: That by Grant of the profits of a Mill and Livery, the Mill it selfe passes, so that taking of the profits is dissesin of the office, also it was objected that the Demandant was no officer, for though that he hath a Patent of it, yet he was not Invested nor Installed in the office, which appeares to the Marshall, and for that he was no Officer, and so hath no cause to have Action: And that this is an office which is incident and annexed to the office of Earle Mar∣shall, and though that he be not Earle Marshall, yet there are Commissioners have his power and authority, and for that the In∣vesting and Instalment of the Plaintiff in the said office appeares to the said Commissioners; but it was resolved cleerely by all the Justices, that the Demandant was Officer by the Kings Grant, without any Installation or Investing, and that this without that, all the Fees and Profits of the office appertayning to him, and that the Investing and Installation, was but a ceremony, in the same manner as if the King hath a Donative, and gives that to another, the Donee shall be in actuall possession by the gift, without any In∣duction or other ceremony: But admitting that the office were annexed to the office of Earle Marshall, then it was agreed that the Commissioners cannot give it, as the cheife Justice of the Common ••ench hath divers offices appertaining to his place, and he may dispose of them; But if he die, the King in time of va∣cancy, nor the most ancient Judges cannot give or dispose of any of them being void, as it appeares by Serrogates Case, Eliz. Dyer: And so the cheife Justice is made, and allwaies hath been made by Patent, and so are the other Justices, and for that they cannot be made by Commissioners, and so the cheife Justice of England, hath all times been made by Writ, and for that can∣not be made by Patent, nor by Commission: And so in the case at the Barr, though that the Commissioners have the power and authority of the Earle Marshall, yet they are not Earle Marshall, it was also objected that the Fees were not due to the Plaintiff, for that he did not attend: But to that it was answered and re∣solved, that the Fees were due to the office, and for that non attendance of the office, was no forfeyture of the Fees: And upon these resolutions the Recognitors found for the Demandant, ac∣cording to the direction of the Court.

Trinity 7. Jacobi, 1609. In the Kings Bench. Godsall.

GODS ALL and his Wife: The Proclamations of the Fyne * 1.265 were well and duly entred in the Originall remaining with the Chirographer: But in the Transcript with the Custos brevium was error, and it seemeth that this notwithstanding the Fyne was good, but the Transcript was amended.

Trinity 7. Jacobi, 1609. In the Kings Bench The Town of Barwicke.

THE King which now is, by his Letters Patents, Incorpora∣ted * 1.266 the Mayor, Bayliffs, and Burgesses of Barwicke, and gran∣ted to them the execution of the Returne of all Writs: And after * 1.267 a Writ of Extendi facias was directed to them, and they made no returne of that, and upon this was the question, if that shall be executed by them, or by the Sheriff of Northumberland: And it seemed to Nicholls Serjeant, that argued for the Plaintiff in the extent that desired execution and the returne of that, that they ought to make execution and returne, for it seemes to him that this was English, and that this appeares by the Act of Parliament, by which the Incorporation was confirmed, and so it appeares also by the Letters Patents of the King, by which the Incorporation is made, for if it were not English, neither the Letters Patents nor the Act of Parliament are sufficient to make Incorporation of that, and also they certified Burgesses to the Parliament of England: And the Kings Bench sent Habeas Corpus to it, and for the not returne of that inflicted a Fyne upon the Corporation: See 21. Ed. 3. 49, and 1. Ed. 4, 10. But Hutton Serjeant seemed to the contrary, and that they ought not to make execution, for he said it is a part of Scotland, and not part of England, and it was con∣quered from that, and it was a Sherifwicke, and hath the same priviledges of ancient times, which they now have by their new Grant: See 24 Ed. 1. and 2. Ed. 2. Obligation, &c. That one Obligation dated there shall not be tryed in England, and also that it is not within the County of Northumberland, nor part of it, nor the Sheriff of Northumberland cannot meddle in it, see 2. H. 7. 31. 26. H. 6. 23. and it is adjourned.

It seemes that Jacob and James are all one name, for Jacobus is-Latine * 1.268

for them both, but Walmesley conceived that if he be Christ∣ened Jacob, otherwise it is, as if one be Christened Jacob, and an∣other James, then they are not one selfe same name.

Note that Coke cheife Justices said, that if Commissioners by force * 1.269 of Dedimus potestatem, take a Fine of an Infant▪ that they are Fy∣nable * 1.270 and ransomable to the value of their Lands, and that this shall be sued in the Star chamber.

Trinity 7. Jacobi, 1609 In the Common Bench. Robinson.

RObinsons Case: A man devises Lands to his Wife for life, * 1.271 the remainder to his Son, and if his Son dies without Issue, not having a Son, that then it should remaine over, and it seem∣ed that this it a good Estate tayl, and it was adjudged accor∣dingly.

If a man makes a Lease for three yeares, or such a small Tearme, * 1.272 to his Son or Servant to try an Ejectione Firme, or if it be made to another Inferion by a Superior, which cannot countenance the Suit, it shall not be intended Maintenance, nor buying of Tytles, which shall be punished.

Trinity 7 Jacobi 1609. In the Common Bench.

NOte, an Attorney of the Common Bench was cited before the * 1.273 High Commission and committed to the Fleet, for that he would not swear upon Articles by the Commissioners ministred, and Habe∣as * 1.274 Corpus was awarded to deliver him, and a Prohibition to the Court of high Commission, see 1. and 2. Eliz. Scroggs case 175 b. Dyer, and there in Margery Hynds case, who 18 Eliz. Noluit jurdre coram Justiciarijs Ecclesiasticis super articulos pro usura, and Leyes case 9. and 10. Eliz. Michaelmas Rot. 1596. and it is written in the Book of the Lord Dyer but not printed, the case was, Ley being an Attor∣ney of the Common Bench was committed to the Fleet, by the Bi∣shop of London and two others of the high Commissioners Ecclesia∣sticall, for that that he was present at a Masse, and he refused to be examined upon his oath upon Articles administred by the high Com∣missioners, see also 5▪ Edw. 4. Keysers case upon the statute of 2. H. 4. chapt. Which gives authority to the Arch-Bishop to imprison, &c. And see the Register fol. 36. b. The form of an Attachment a∣gainst the Bishop, which cited Aliquos Laicos, ad aliquas cognitiones

faciendas, vel sacramentum prestandos nisi in casibus matrionalibus & Testimeutarijs, &c. But it was urged that the Judges of the Com∣mon Law, shall not have the exposition of the statute of 1. Eliz. because it was an Ecclesiasticall Law, but it was resolved by all the Justices, that it belongeth to the Judges of the Common Law to expound this, for the Statute was temporall meerly, and with this 4. Ed. 4. 37. b. c. upon the Statute of 5 H. 5. chapt. Which pro∣vides, Quod libellus sit deliberatus parti in casu, ubi per legem deli∣berandus est, & hoc sine difficultate, And though that this Act be meer spirituall, yet the Exposition of that lyes open to the common Law.

Michaelmas 7. Jacobi 1609. In the Common Tench. Estcourt and Harrington

IN Trespass upon the Case between George Estcourt Plaintiff, and * 1.275 Sir James Harrington Knight Defendant, for that, that the De∣fendant sayd that the Plaintiff was a forsworn and perjured man, which the Defendant justified, for that that the Plaintiff exhibited and English Bill, in the Marches of Wales, before the President and Councell there, and in the same suit made an Affidavit, upon which an Injunction was granted for the possession of Land in que∣stion between them, for the sayd Plaintiff, and that the sayd Affida∣vit was false, and the Plaintiff hath committed perjury in that, and this was allowed good Justification, the Jury was of the Coun∣ties of Glocester and Salop, and the words of the Distringas were * 1.276 ordinary till towards the end, and that was Ad faciendam quendam Juratum simul cum alijs Juratoribus comitatus nostri Salop, and this was the Distringas directed to the Sheriff of Glocester, and so Mu∣tatis mutandis in the Distringas directed to the Sheriff of Salop; and note that the Jurors were sworn one of one County and another of another County, Alternis vicibus, and 24. were returned of every County.

Michaelmas 7. Jacobi 1609. In the Common Bench. Simpson and Waters.

SYmpson against Waters in an Action of Trespasse upon the case for * 1.277 Slander, that is, thou art drunk, and I never held up my hand at the Barr, as thou hast done, and agreed that an Action doth not lye for these Words, for peradventure he intended buttery Barr, And by Foster Justice, if he had sayd for Felony, that the Action

doth not lye, for many honest men are arrained, but if he saith he was detected Action doth not lye, but if he saith he was convicted for Perjury Action lyeth as seemed to him.

In Trespass the Originall bore Teste 3. Ianuary 6. Iacobi and in the Count the Trespass is supposed 20 Ianuary 6. Iacobi, which is af∣ter * 1.278 the Teste of the Originall, and agreed that this shall not be ai∣ded by the Statute o•• Jeofailes, but if it were originall otherwise it is.

Michaelmas 7. Jacobi 1609. In the Common Bench, Hare and Savill.

IN Covenant by John Hare and Hugh Hare against John Savill, the Plaintiffs made a Lease for years to the Defendant, rendring * 1.279 Rent at two Feasts, or within ten dayes after every of those, at the Temple Church, and the Defendant covenanted to pay the Rent according to the reservation, and for the non payment these Plaintiffs brought an Action of Covenant, to which the Defendant pleads levi∣ed by distress, and upon this the Plaintiffs demurred, and adjudg∣ed with the Plaintiffs accordingly, for that the Defendant for his Plea, hath confessed that it was not payd according to the reserva∣tion, for the Plaintiffs cannot distrain, if it were not behind after the day, and it was agreed, that where a Rent is reserved to be payd at such a Feast or within twenty dayes, that the Lessee in this case shall have Election if he will pay that at the Feast; or at the end of twenty dayes, for he is the first Actor, and the Lessor can∣not distrain nor have action of Debt, till the twenty dayes be past, and it was agreed, that the Covenant shall not alter the nature of the Rent, but that nothing behind, or payment at the day, were good Pleas.

Defendant in Debt pleads to the Law, and was ready at the Barr * 1.280 to wage his Law; and it was resolved by the Judges upon conference with the Prothonotories that it might be continued, but the Court would advise.

IN Action upon the Case upon Assumpsit, the Plaintiff counts, that diverse Goods were delivered to him in pawn, and that in con∣sideration * 1.281 that he should deliver them to the Defendant, the Defen∣dant assumed and promised to pay to him the Debt for which the Goods were pawned, and it was objected that the Count was not good, for that it doth not contain the certainty of the Goods which were pawned; and delivered to the Defendant, but to that this diffe∣rence was agreed, that when Goods are to be recovered and Dam∣mages

for them, and are in demand, the certainty of the goods ought to appeare in particuler, as if a man pleades, that he was never Executor, nor administred as Executor, it is a good Plea, for the Plaintiff that he administred Diversa bona in such a place, so if he plead that he hath Diversa bona natabilia in other Dio∣cesse, it is good i•• both cases without shewing what goods in cer∣taine, see 11. H. 7. 29. Ed 3. Also it was objected that the con∣sideration was not sufficient, and then it shall be Nudum pactum ex quo non oritur actio, for the Plaintiff hath not any Interest in the Goods, and they were delivered him to keep, and not to deli∣ver over, so that the delivery was vitious, and for that it shall be no good consideration, and of this opinion was Foster Justice: But Coke, Wraburton, Danyell, and Walmesley being absent, it seemes that the condition was good, as if a man in consideration that another will go to Westminster, or cure such a poor man, or ma∣ry a poore Virgin, assume to pay to him a sum of money: And though this consideration were not valuable, yet it seemes good: And he that pawned hath a property in the goods, and may have them againe.

In debt against three Executors, two of them are out lawed, and the third pleads and Verdict against him, and it was resolved that the * 1.282 Judgement shall be against all by the Statute of 9. Ed. 3. for they all are but one Executor, and the Cost shall be against him which pleades, if the others confesse or suffer Judgement by default: And there shall be but one Judgement and not diverse, see 17 Ed. 3. 45. b. 11 H. 6.

Upon a Venire Facias awarded, the Sheriff returnes but 21. and * 1.283 the Habeas Corpora was against 21. only, and this was also return∣ed, and upon that ten appeared, and upon this Tales was awar∣ded, and triall had, and but ten of the principall Pannell sworne: And this was Error, but if twelve of the principall Pannell had ap∣peared and served, it seemes that it shall not be error, for so it was resolved in Graduers case, where twenty three were returned, but twelve appeared and tryed the Issue, and this was resolved to be good and no error.

Michaelmasse 7, Jacobi, 1609. In the common Bench. Buckmer against Sawyer.

A Man seised▪ of Land in Gaelvelkind hath Issue three Daughters, that is, A. B. and C. deviseth all his Land to A. in tayl, the remainder of one halfe to B. in tayl, the remainder of the other * 1.284 halfe to C. in tayl, and if B. died without Issue, the remainder of

her Moytie to C. and her Heires, and if C. died without Issue, the re∣mainder of her Moytie to B. and her Heires, the Devisor dies A. and B. dies: And the question was, if C. shall have a Formedon in remain∣der only, or severall Formedons for this Land: And it seemed to all the Justices, that one Formedon lieth well for all, for that, that it was by one selfe same conveiance, though that the Estate come by severall deaths, and this Action was to be brought by the Heire of C. after the death of C. See the three and four Phil. and Mary Dyer.

Note that after appearance of a Jury, and after that divers of * 1.285 them were sworn, others were challenged, so that it could not be taken by reason of default of Jurors: But a new Distringas awarded, and at the day of the returne of that, these which were sworn before appeared, and then were challenged: But no chal∣lenge shall be allowed, for that, that they were sworn before, if it be not of after time to the first appearance.

Michaelmasse 7. Jacobi, 1609: In the Common Bench. Baylie against Sir Henry Clare * 1.286

BAYLIE against Sir Henry Clare, the Writ was of two parts, without saying in three parts to be divided: And it seemed to Nicholls Serjeant which moved this, that it was not good, but error: But the opinion of the Court was that it was good: See 17. Ed. 3. 44. 19. Ed. 3, breife 244. 17. Assise with this difference, that if there are but three parts and two are demanded, there it is good without saying in three parts to be devided, for when parts are demanded it is intended, all the parts but one, and that it is only one which remaines, see the Register fol. 16. 12. Assise: And it was adjudged in the Kings Bench in the case of one Jordan, that demand of two parts where there are but three parts is good, see 39. H. 6. Salford against Hurlston in Formedon which demanded two parts where there is but three, and so of three parts where there is but four, it is good without saying, in three or four parts, to be divided: But if a man grant his part, this shall be intended the halfe, for Appellatio partis dimidium partis contenetur, and a Writ of Covenant ought to be of two parts without saying in three parts to be divided, for so is the forme, and if in such case in three parts to be divided be incerted, the Writ shall abate, see Thelwell in his digest of Writs, 146. and by Coke if a man bring Ejectione Firme for ten Acres, and by evidence it appeares that he hath but the halfe Ex vigore Juris it shall not be good, but he said he would submit his opinion,

to the Judgement of ancient Judges of the Law which have often time used the contrary.

Note that the Husband may avoid his Deed, that he hath Sea∣led * 1.287 by the duresse of Imprisonment of his Wife or Son: But not of his Servant, and so Mayor and Commonalty may avoid a Deed sea∣led by duresse of Imprisonment of the Mayor, for it is Idemptity of person, between the Husband and the Wife: See 21. Ed. 4. and 7. Ed. 4. A man may avoid Se••sin for payment of Rent by co∣ersion of distresse but not his Deed.

Michaelmasse 7. Jacobi, 1609. In the Common Bench. Payn and Mutton.

IN an Action upon the case by Payne against Mutton, the Plain∣tif * 1.288 counts that the Defendant called him Sorcerer and Inchantor: And agreed by all the Justices that Action doth not lie, for Sor∣cerer and Inchantor are those which deale with charmes, or turn∣ing of Bookes, as Virgill saith, Carminibus Circes socios mutavit ulis∣sis, which is intended Charmes and Inchantments, and Conju∣ration is of Con et nico, that is to compell the Divell to appeare, as it seemes to them against his will, but which is that to which the Devill appeares voluntarily and that is a more greater offence then Sorcery or Inchantment, which was adjudged that Action doth not lie for calling a man Witch, and said that he bewitched his Weare that he could not take any Fishes: Dodridge the Kings Serjeant saith that an Action lieth for calling a woman, gouty pockye Whore, and said that the Pox had eaten the bottome of her Belly out, and so it was adjudged that it lieth well for these words, get thee home to thy pokey Wife the Pox hath eaten off her Nose: But for the Pox generally Action doth not lie: But if he sai••h that he was laid of the Pox, then Action well lieth, for then it shall be intended the great Pox.

Note that in Prohibition and Replevin, the Defendant may have nisi prius by Proviso without default of the Defendant, for he him∣selfe * 1.289 is re vera Defendant, and there are two Actors, that is the Plaintiff and Defendant: But the Court appointed that Presidents should be searched, the Plaintiff is not bound to prosecute Cum Effectu in this Court, as he is in the Kings Bench: And it was agreed that the manner of Pleading was agreement, as for Returno Habendo, in the Replevin and Pro consultatione habenda in the Pro∣hibition.

Michaelmas 7. Jacobi, 1609. In the Common Bench Miller and Francis.

MYLLER Plaintiff in Replevin against Thomas Francis, the * 1.290 case was, Richard Francis was seised of Land held in Socage, * 1.291 and deviseth that to John his eldest Son for a hundred yeares, the Remainder to Thomas his second Sonn for his life, and made his four other youngest Sonns his Executors, and after made a Feoff∣ment to the sayd uses, the Remainder to the sayd John his eldest Son in tayl; Proviso that if the sayd John disturbed the Executors of taking his Goods in his House, that then the sayd use and uses li∣mited to the sayd John Francis and his Heires shall cease, and after declared that his intent was, that in all other points his Will should be in his force, and it was pleaded that Iohn did not suffer the sayd Executors to take the sayd Goods in the sayd House, and if his E∣state for years, or in Tayl, or Fee-simple shall cease was the questi∣on, and it seemed to the Judges that the Condition shall not be Idle; but shall have hi•• operation, as it appears by Hill and Granges case and the Lord Barkleyes Case in the Comment. and the Lord Che∣neyes Case, Coke, And it seems also, that it shall not be referred to Estate in Fee simple, for then it shall be void, and it shall not be referred to a Tearm, for it is limited to an Estate limited to the said Iohn and his Heires, but it seemeth it shall be referred to an Estate tayl only, as it is 2 and 3. P. and Mary Dyer 127. 55. 11 H. 7. 6. But the case was adjudged upon one point in the Pleading, for it was not pleaded that Iohn Francis had notice of the Devise, nor that he had made any actuall disturbance, and peradventure he entered as Heir and had no notice of the Condition, and when the Executors came to demand the Goods which were belonging to the Heir, and annexed to the House, and he sayd that it doth not appear to them to prove that an express notice was given in this case, the Books of 43 Assise where a man was attaint and after was restored by Parlia∣ment, and a Writ being directed to the Esceator, the Escheator re∣turns, that he was disturbed, and upon Scire facias the disturber pleads, that he had no notice of the sayd act of restitution, and for this he was excused of Disturbance: And see 35. H. 6. Barr, 162.

Michaelmas 7. Jacobi, 1609. In the Common Bench. Waggoner against Fish.

WAGGONER brought a Writ of Priviledge, supposing * 1.292 that he had a suit depending here in the Common Bench, which was directed to the Maior and Sheriffs of London, and upon the return it appears, that 4. Iacobi an Act of Common Councell was made that none should be retayler of any Goods within the same City, upon a certain pain, and that the Chamberlain of the said City for the time being, may sue for the said penalty to the use of the sayd City, at any of the Courts within the said City, and that the Defendant hath retailed Candles, and held a shop within the sayd City being a stranger, and against the sayd Act, and for the sayd penalty, the Chamberlain hath brought an Action of Debt within the sayd City, according to the sayd Act of Common Coun∣cell, and upon the return it appeares, that by their Custome the Maior and Aldermen with the Assent of the Commoners of the said City, may make By-Laws for the Government of the sayd City, and that the sayd custome, and all other their Customes, were confir∣med by Act of Parliament, and upon this it seems, that though there be not remedy given, for this penalty in another place then in London, that yet if it be against Law he shall not be remanded, and if a Corporation hath power to make By-Laws, that shall be intended for the Government of their ancient Customes only, and not to make new Lawes, see 2 Ed. 3 Iohn De Brittens Case, but it seems if this By-Law be for the Benefit of the Common-Wealth, that it shall be good, otherwise not, and it was Adjourned, see Hilla∣ry next insuing, for then it was adjudged, that he shall not be remanded, see afterward Michaelmas 7. Iacobi, It was adjudg∣ed.

NOte that this Tearme was adjourned untill the Moneth of Mi∣chaelmas * 1.293 by reason of the Plague, and upon the adjournment this insued, and was moved by Yelverton and Crook at the Bar, and the Case was this.

Michaelmas 7. Iacobi, 1609. In the Common Bench.

POynes being an Infant levies a Fine, and in Trinity Tearm last past brought his writ of Errour in the Kings Bench, and assigned for * 1.294 Errour, that at the time of the Fine levied was, and yet is within age, and prayed that he be inspected, and insomuch that he had

not his proofs there, he was not inspected but Dies datus est usqu•• Octabis Michaelis Proximas, at which time came the said Poynes the day which was wont to be the day of the Essoyn, and prayed Justice Crooke (which was there to adjourn the Tearm) to inspect him; and to take his proofs, who did inspect him accordingly, De bene esse, and now before the Moneth of Michaelmas the Infant came of full age, and if this inspection were well taken, and what authority the Judge had upon that day to adjourn, was the questi∣on.

And Flemming cheife Justice sayd, that the day of Essoyn is a day in Tearm, and that the Court was full though there was but one Judge, and if the inspection had been the day of the Essoyn, and before the fourth of the Post, he had come of full age, this shall be very good, but the doubt rose as the case is, if upon the day of Ad∣journment the Judge had power to do any thing but to adjourn the Tearm, and for that it was appointed to be argued, and for the Ar∣gument of that, Quere of my Author Lane.

Michaelmas 7. Iacobi 1609 In the Common Bench. Rivet Plaintiff, Downe Defendant.

IN an action upon the case upon an Assumpsit, the case appears to be this, Copy-holder makes a lease for a year according to the custome of the Mannor the Lord distrains the Farmer of the Copy-holder for his Rent, and the Copy-holder having notice of that, comes to the Lord, and assumes that in consideration, that the Lord should relin∣quish his Suit against his Farmer, touching the same distress he would pay the Rent by such a day, the Lord delivers the Distress, and for default of payment at the day, brings an Action upon the case, and upon Non Assumpsit pleaded, Verdict passed for the Plaintif: And Barker Serjeant came and moved in arrest of Judg∣ment.

First that a man cannot distrayn a Copy-holder but he ought to seise, but Williams Justice and others to the contrary; and by him if a man makes a Lease at will Rendring Rent he may distrain for this Rent, 9 H. 7. 3. The case of Rescous.

Secondly, He moved that when the Lord distraines, that now the Tenant hath cause of Action, that is Replevin, and for that it cannot be sayd Sectam suam, and so the consideration failes, but all the Court against that, and that this was a good consideration, and by Flemming cheife Justice, Distress is an Action in it self, because this is the cause of a Replevin, and when the Tenant brings his Reple∣vin and the Lord avowes, now is the Lord an Actor, and so it is secta

sua, and by him secta is not only an Action hanging, but that which is cause of an Action, And Judgement was given for the Plaintiff.

Michaelmasse 7. Jacobi, 1609. In the common Bench. * 1.295 Flemming and Jales.

ACTIONE upon the Case for these words: Thou hast * 1.296 stolen my Goods, and I will have thy neck, and maintain∣able.

Michaelmasse 7. Jacobi 1609. In the Common Bench. Ayres Case.

ACTION upon the Case for these words; Ayer is an ar∣rant Theife, and hath stolen divers Apple Tres out of J. S. Garden, and the Action well maintainable, otherwise if he had said, for he hath stolen, &c. for then it should not be Fellony to steale Trees, and the word (For) shewes the reason why he called him Theife, but the word (And) not.

Michaelmasse 7. Jacobi, 1609. In the Common Bench. Bryan Chamberlaines Case against Goldsmith.

IN Debt upon an Obligation, in which the under Sheriff was bound to the Sheriff, for the performing of diverse Covenants * 1.297 contained in an Indenture made between them for the exercising of the said Office, and the Plaintiff assigned breach of Cevenant, by which the under Sheriff hath Covenanted, that he would not execute any processe of execution without speciall warrant and assent of the Sheriff himselfe: And the sole question was, if this Covenant be a good and lawfull Covenant or not, and it was ar∣gued by Hutton Serjeant for the Defendant, that counted that the Sheriff is a publick Officer, and may execute the office by him∣selfe, * 1.298 yet when he hath made an under Sheriff, he hath absolute authority also, and it is not like to private authority, but it is as if a man make an Executor, provided that he shall not admi∣nister, his debts above the value of forty pound: And as if an Ob∣ligation with Condition, that if an Obligor shall keep the Obli∣gee without damages for four Beefes taken in Withernam, that the Obligation shall be void, or as if a man takes an Obligation of his Prentise, with Condition that he shal not use his Trade within

five yeares, or within ten miles of such a place, or as a Steward takes an Obligation of another man with Condition that he shall not sue in other place but where he is Steward, or in the Common Bench, this abridges the subject of his right, and that the under Sheriff is a publick officer and mentioned in many Statutes, though he shall not be an Attorney the same yeare in which he is under Sheriff: And the Statute of 23. H. 8. restraines the under She∣riff, that he shall not let any prisoners to Bayl, but in the same manner as is contained in the Statute, and further he said, that all Obligations which have Impossible conditions are good, and the Condition void, but if the Condition be against Law, the Obli∣gation and Condition also is void: And so he concluded that the under Sheriff is a publick Officer, and that his office cannot be apportioned, and that the Condition was performing of a Cove∣nant which was against Law and void, and so by consequence the Obligation void: And so praied Judgement for the Defendant: And for the Plaintiff is was argued by Dodridge Serjeant of the * 1.299 King, that the Obligation is good and not void: And he said that there are two Officers to all the Courts of the King, which are to execute all Writs, and that these Officers are Sheriff and Bishop, and the Law doth not take any notice of under Sheriff, or War∣den of spirituallties, for the Sheriff himselfe shall be amerced and not the under Sheriff, which is but his substitute, and it appeares by 3. H. 7. 2. b. That all Writs shall be directed to the Coroner, and by him ought to be executed, and 10. H. 4. 42. The She∣riff was merced for an Arrest made by a Bayliff of a franchise, and and though that the Warden of Westminster Hall is an Officer to the Kings Courts to some purpose, yet no Writ shall be directed to him, as it appeares by 8 Ed. 4. 6. Also he agreed that the power of the Sheriff is double, that is Ministeriall and Juditiall, and some times he executes both together, as in Redisseisin, for of that he is Judge and also is Minister to the Court of the King, and yet he is but one man, for the Law doth not take any notice of under Sheriff, nor intends, that he shall supply any of these Offices, for the under Sheriff is but servant to the Sheriff, and to execute his Ministeriall power only, and if it be so, he may limit his Autho∣rity at his pleasure: And if the Sheriff make a false returne, or o∣therwise retard, or make an uncertain returne, he himselfe shall be punished by Action, for the Law requires knowledge and in∣telligence of the Sheriff, and the ancient Statutes made in the old time, make mention of Sergeants at Mace, and yet they make not any mention of under Sheriff, which is but servant.

And he agreed that an Obligation taken with Condition, against Law is void, but he said that this is not against Law, for the under

Sheriff is a person of whom the Court doth not take any notice, for he is but servant of the Sheriff, and for this case, and remove∣able at his pleasure, and he may exercise his office by himselfe when he pleases, and also he argued that the authority which may be to∣tally countermanded, may be countermanded in part, and that the under Sheriff hath Derivata potestas, quae semper talis est qualis committitur: And by 35. H. 6. A man may make two Executors, one for his Goods in Middlesex, and the other to administer the Goods in London, and this is good between them: But not against a stranger, for he ought to sue them both, and he shall not be prejudiced by that, and so 32, H, 8. Brook Executor, 155. A man made two Executors Proviso that one should not administer in the life of the other, and 36, H. 8. 61. Feoffment and Letter of At∣torney to make Livery to three or to any of them, Livery cannot be made to two, and also he said that there is no difference between power derived from a private person, and power derived from the publick, when this power comes to execution: And admitting that the Sheriff may limit the authority of his under Sheriff for a time, as it seemes that he may, then of this it followes, that he may allwaies abridge and apportion his authority: And he agreed that when an under Sheriff is made, diverse Statutes have been made to punish him if he offend: But the Sheriff is not compellable to make under Sheriff: And as to the Obligation, that if an execu∣tion be delivered to the under Sheriff, against one which is in his presence, that he ought to execute it, he saith that the Law is not so, for the party ought to deliver the execution to the Sheriff him∣selfe, for it doth not appeare that he hath an under Sheriff: if he have received a Writ of discharge or not: And also the Office of the Sheriff is of charge to the King and to the Common Wealth, and the execution of Writs may be prejudicall and penall to the Sheriff himselfe: And for that he may well provide, that he shall have notice of every execution which are most Penall: And also in all the Indenture now made, he doth not constitute him to be his under Sheriff, but only for to execute the Office, and for these reasons he seemed the Obligation is good, and demands Judgement for the Plaintiff: But it seemes to all the Court, that * 1.300 the Covenant is void, and so by consequence the Obligation, as to the performance of that void, but good to the performance of all other Covenants: And Coke cheif Justice said, that the She∣riff at the Common Law was elligible as the Coronor is, and then by the death of the King his Office was not determined, and also it is an intire Office, and though the King may countermand his Grant of that, intirely, yet he cannot that countermand by par∣cells, and also that the under Sheriff hath Office which is intire,

and cannot be granted by parcells, and this Covenant will be a meanes to nourish bribery and extortion, for the Sheriff himselfe shall have all the benefit, and the under Sheriff all the payn, for he is visible, the under Sheriff and all the Subjects of the King will repaire to him, and the private contracts between the Sheriff and him are invisible, of which none can have knowledge but themselves.

And Warburton sayd; that in debt upon escape, &c. are against the Sheriff of Notingham, he pleaded Nihil debet, and gives in evi∣dence, that the Bayliff which made the Arrest, was made upon condition, that he should not meddle with such executions, without speciall warrant of the Sheriff himselfe, and his consent, (but it was resolved (this notwithstanding) that the Sheriff shall be charged in: and in the principall case, Judgement was given ac∣cordingly, that is, that the Covenant is void

Note that the Sheriff of the County of Barkes, was commited to * 1.301 the Fleete, for taking twenty shillings for making of a warrant upon a generall Capias utlagatum, for all the Justices were of opi∣nion, that the Sheriff shall not take any Fees for making of a war∣rant or execution of that Writ, but only twenty shillings and foure pence, the which is given by the Statute of 23. H. 6. for it is at the Suit of the King: But upon Capias utlagatum unde convictus est, which is after Judgement, it seemes it is otherwise.

A man grants a Rent to one for his life, and halfe a yeare after to * 1.302 be paid at the Feasts of the Anunciation of our Lady, and Michaell the Archangell by equall portions, and Covenants with the Gran∣tee, for the payment of that accordingly; the Grantee dies 2. Fe∣bruar•…•…, and for twenty pound which was a moyity of the Rent, and to be payd at the anunciation after, the Executors of the Grantee brings an Action of Covenant, and it seems it is well maintainable. And Coke cheife Justice sayd, That if a man grants Rent for ano∣thers life, the Remainder to the Executors of the Grantee, and Covenant to pay the Rent during the Tearm aforesayd, this is good Collective, and shall serve for both the Estates, and if the Grantee of the Rent, grant to the Tenant of the Land the Rent, and that he should distrain for the sayd Rent, this shall not be intended the same rent which is extinct, but so much in quantity, and agreed that when a Rent is granted, and by the same Deed the Grantor cove∣nants to pay that, the Grantee may have annuity or Writ of Co∣venant at his Election.

Michaelmas 7. Jacobi, 1610. In the Common Bench. Waggoner against Fish, Chamberlain of London.

JAMES Waggoner was arrested in London, upon a Plaint ente∣red * 1.303 in the Court of the Maior in Debt, at the suit of Cornelius Fish Chamberlain of the sayd City, and the Defendant brought a Writ of Priviledge; returnable here in the Common Pleas, and upon the return it appears, that in the City of London there is a custome, that no forrainer shal keep any shop, nor use any Trade in London, and also there is another Custome, that the Maior, Aldermen, and Common∣alty (if any custome be defective) may supply remidy for that, and if any new thing happen, that they may provide apt remedy for that, so if it be congruae & bon•• fidei consuetudo rationi consentiae & pro com∣muni utilitate Regis, civium & omnium aliorum ibidem confluen∣tium, and by Act of Parliament made 7 R. 2. All their customes were confirmed, and 8 Ed. 3. The King by his Letters Patents gran∣ted that they might make By-Laws, and that these Letters Patents were also confirmed by Act of Parliament, and for the usage certified, that in 3 Ed. 4. and 17. H. 8. were severall acts of Common Coun∣cell, made for inhibiting Forrayners to hold any open shop, or shops or Lettice, and penalty imposed for that, and that after, and shewed▪ the day in certain was an Act of Common counsell, made by the Mayor, Aldermen, and Commonalty: And for that it was enacted, that no Forrayner should use any Trade, Mistery or occupation, within the said City, nor keep any Shop there for retayling, upon payn of five pound, and gives power to the Chamberlain of London for the time being to sue for that by Action, &c. in the Court of the Mayor, in which no Es∣soyn nor wager of Law shall be allowed, and the said penalty shall be the one halfe to the use of the said Chamberlain, and the o∣ther half to the poor of Saint Bartholomewes Hospitall: And that the Defendant held a shop and used the Mistery of making of can∣dles the seventh day of October last, and for that the Plaintiff the ninth day of the same month then next insuing, levied the said plaint: And upon this the Defendant was Arrested, and this was the cause of the taking and detaining, &c. And upon argument at the Bar by Serjeant Harris the younger for the Defendant, * 1.304 and Hutton for the Plaintiff, and upon sollemne arguments by all the Justices, Coke, Walmesley, Warburton, Danyell, and Foster, * 1.305 it was agreed: That the Defendant shall be delivered, and not re∣manded:

And the case was devided in to five parts.

The first the custome.

Secondly, the confirmation of that by Act of Parliament.

Thirdly, the grant of the King, and the confirmation of that by Act of Parliament.

Fourthly, the usage and making of Acts of common councell ac∣cording to this.

Fiftly, the Act of common councell upon which the Action is brought, and upon which the Defendant was Arrested.

And to the first, which is the custome, it was also said, that this consists upon three parts:

That is, first if any custome be difficult.

Secondly, if it be defective.

Thirdly, if Aliquid de novo emergit, The Mayor, Aldermen, and Commonalty: Possunt opponere remedium, and that there are foure incidents to that remedy.

First it ought to be Congruum Retione.

Secondly, 〈◊〉〈◊〉 one fidei consonum.

Thirdly, consentaneum rationi.

Fourthly, Pro communi utillitate regis, civium & comodum a∣liorum ibidem confluentium: But all the question was upon the remedy, for it was agreed that the custome shall be good: But it was doubted by Foster and Danyell that there was no good re∣turne, for it was but as recyted; and it was not averred and po∣sitively said, that there was such a custome, and to prove that the case of 28 H. 6. was cited, where in debt upon an Obligation, the Defendant demands Oyer, and upon the view saith, that it ap∣peares by the said Obligation, that two others were joyntly bound with him not named, Judgement of the Writ, and 24. Ed. 4. Where it was pleaded, as it appeares by the Letters Patents of one King, and in 11. H. 4. in returne of a Sheriff: But Coke answered and took a difference between returne upon a Writ of priviledge, and upon which no Issue may be joyned, nor demurrer, and that it is but for an Informer of the Court, and other pleads: And for this it seemes to him, that it is good as to that, and he conceived that by the Grant of the King the custome is destroied, for the King by his Grant cannot add nor diminish any thing of the custome, no more then of Prescription, and exceptance of Grant shall be extinguishment of one as well as of the other, as it ap∣peares by 8. H. 4, 25. H. 7. 5. 38. H. 8. B. Prescription, 7 R, 2. But to this the Lord Coke gave no answer, and for that it seemes they were no Grants, but confirmation rather of customes, and they further denied that the customes are confirmed by the Sta∣tute of 7. R. 2. for this is only for the confirmation of Magna Char∣ta,

and of all former Statutes, and of Charta de Foresta, and the li∣liberties of the holy Church, and there is not any mention of the customes of London, but to this the Lord Coke answered, that they ought to credit their returne, and for that it seemes, that it is a private Act, and they ought to adjudge of that as it is made, as 7. H. 6. 6. And if it be false the party greived may have an Acti∣on upon the case, so it was agreed that the custome, that no for∣rainer shall hold any shop, nor sell in any shop by retayl, and that they may make By-Lawes, for the ordering of their ancient cu∣stomes, are good customes without any confirmation by Act of Parliament, or Grant of the King or otherwise: And if any thing happen De novo, that they can apponere remedium with the re∣strictions aforesaid, for the Lord Coke saith that London is Antiqua civitas, and was of great fame and reckoning, amongst the most ancient Cities, for it was said by Anianus Marcellinus which wrote 1200. yeares past, that London was then Opidum vetustum, and Cornelius Tacitus in vita Neronis saith, that then there was under the Romans Government, there was here Negotiorum copia, & commercia maximorum celebris, and he well knew for he was here seven years, and married the Daughter of Agricola, who was ancient Guilda Mercatoria, and for that it was well governed and continued in good Order, for Ʋbi non est ordo, ibi est infirmium & sempiternus Horror & confusio, and Gilda is a Saxon word, and is the same for Fraternitas, and Northfolk and diverse other places in the Country the name continued, but this is another sence, for Gyld fignisies to pay, and for that it is sometime demanded if a man inha∣bite in a place gildable or within Franchise, and the Place gildable is subject to scot and Lot, and all other charges, but the Franchises are places exempt, but no person which is of a Gyld or fraternity, may be exempted not by the Grant of the King nor otherwise, but shall be subject to all the charges of the Gyld, and Fraternity, and the King cannot make any man free of their Guyld when that is created, for there are but three waies to make a man free of that.

First, by Birth which is the most eldest.

Secondly, by Service which is of merits.

Thirdly, By redemption which is power which only remaines in the Maior, and the Court of Aldermen, in this case in London, and such Gyld can never have beginning but by Grant, but by pre∣scription, as the custome of Gavelkinde, that a man may devise his Lands, or that the Land shall discend to the youngest Son, and that the King cannot make, any stranger free of such Gyld or Fra∣ternity appears in Rotulo patentium, 32 Ed. 3. Where the King by his Letters patents granted to one Iohn Faulchon, that he should be

frank and free of the City of London, and that he should keep an Apo∣thecaries shop there, but the Patentee could not have his Freedome by this grant, and for that the King wrote his Letters to the Maior and Aldermen, and requested them to make the sayd Faul∣chon free of the sayd City, and upon that it was done accordingly, but not upon the Grant, and so it was adjudged in Darcies case 44. Eliz. Trinity, that if the King grant to one the sole making of Cards in England, and that none shall bring any Cards into England to be sold but the patentee, and it was adjudged that though none may may have Park or Warren, and such other matters of Pleasure with∣out the Kings Grant, and though that playing with Cardes be but a matter of Pleasure, yet the making of them is a matter of profit, and the bringing of them into England is a matter of Trade, and the inhibition of that is hinderance of Trade, and makes a Monopoly, that the Grant was voyd, and 3 Ed. 3. 3. Iohn of Sudfords Case, where the Case was, a Free-holder levied a fold upon his Soyl, and Freehold of his own, and the Defendant spoyled it, and broke it, aed upon that the Plaintif brings a Writ of Trespass; the Defendant justifies that he was Lord of the Town, and there had been a usage there, and had been of time out of memory, &c. That no man of the same Town ought to levy a fold without the agreement and leave of the Lord: And for that that the Plaintif had done it, the Defendant pulled it down as wel to him it was lawfull, and it seems a good cu∣stome, and with this agrees 5 Ed. 3. Iohn de Hayes case, and 10 and 11 Eliz. Dyer 279. 10. prescription, by the Maior Sherif, and Citizens of York; Goods forraine bought and forrain sold shall be forfeited, and that he may seise them it was adjuged a good prescription, but the King by his Letters Patents, cannot give such power to them.

And Coke was cleerly of opinion, that the case was not within the Statute of 9 Ed. 3. chapt. 2. 25 Ed. 3. 11 27 Ed. 3. 11. And it was agreed by them all, that a Merchant or any other man may sell Goods in grosse, as he may sell a hundred tun of wine, or peices of Cloath, and one Tun of Wine to one man, or a peice of Cloath to one man, and another to another man, till he hath sold all, that this was not retailing, but they cannot sell by the yard or keep a shop, but it was also agreed that some goods a man might sell as well in their Market, if he do not keep a shop here without any of∣fence, and it was objected that this By-Law was not good, for that it was for private good, and also the penalty which was to be inflicted was too great.

For first the Maior, Aldermen, and Citizens, make the Law, the suit for the penalty ought to be before the Mayor, and the Maior and Citizens ought to have part of the Penalty, so that the Mayor

shall be Judg in his own cause, which also was one of the Reasons of the Judgment in the Chamberlain of Londons case 5. Coke for that that the penalty was so small, that is a penny for every cloth which shall be sold in Blackwell hall, and this was for publick good, for here shall be search if it were good and merchantable, but it was agreed by all, that every Town may make a By-Law, which is pro bono publico, without any prescription or custome, and this shall be good, and being made by the greater part shall bind the residue, but if it be for private good, as for the ordering of the common or such like, shall not be good to bind any man without his assent, without speciall custome, according to the Judgements in the Cham∣berlaine of Londons Case, and Clarkes case 5. of Coke in his cases of By-Lawes: But Coke is cleer that the remedy, that is, the By-Law was good and agreeing to the custome in every point, and that the penalty was fit and good, and for quantity and quality, and that to the quantity he agreed, that they could not inflict confiscati∣on of Goods nor Imprisonment, but may inflict pecuniary punish∣ment, as it appeares by Clarkes Case, and the Action may be brought for that, so that for the quality it was good: And so as to the quantity which was Secundum quantitatem dilicti, for he conceived it was a greater offence, to hold a private shop then pub∣lick, for this is not in view nor subject to search & reformation, as wel as if it were publick, and for an old Act of Common Councel, he which keeps a publick shop shall forfeit ten shillings, and clam delinquens punietur magis quam palam, & now the ounce of silver is increased in value, for it is worth five shillings four pence, and then it was worth but three shillings four pence, and so for quantity and quality Et con∣gruum & ratione causarum: And it seems to him that it is not Bo∣na fide, that a Forrainer should hold a private shop, but Dissentane∣um, for London is a Market overt, every day in the Weeke, but Sunday, as it appears by 11 H. 6. 19. And in Dunstable, the Prior brought an Action against a Butcher, for that that Dunstable was an ancient Town, and that this was a market overt two dayes in the Week, and the Defendant sold flesh in an inward roome, the Defendant pleads custome to warrant that, and adjudged that it was not good, for the usage of Trade in such Corners is not, Bonae fidei consonant, and after he pleaded that he sold the flesh in an open shop in the Market, and this was allowed to be a good Plea, and if it be so in Dunstable, a fortiori, it shall be so in London, and for the same reason also it shall not be Rationi Consentaneum, to hold such inward shops, and also it is for Communi utilitate, that is, of the Citizens of the King, and of all others, that Forrainers shall not hold any shops in London, for it appears by the return that Forrai∣ners shall not be subject to Scot and Lot in London, and shall not be

Officers which are matters of great charge, so that if it shall be so they should be preferred before Free men, and without question it is discomodious for the Citizens, that any Forrainer should use any Trade here, and it would be a distruction to Citizens, that a For∣rainer should not be subject to their charges, and yet should take benefit of the Trade within the City.

Secondly, And for the Benefit of others that strangers should not be received to use any Trade within the City, for this is the cause of Depopulation, depradation, and distruction in all other Townes and Burroughs in England, which is prejudice to all others.

Thirdly, it is prejudiciall to the King, that such a company of In∣habitants should be resident in London, which is Camera Regis, for this is the cause of Iufection of the Aire and sicknesse, so that the King and all the State is prejudiced by it, but the sole doubt which was conceived by Coke, was for that that it doth not appear by the return, that the Defendant had used the Trade of Tallow Chand∣lor nor sold any Candles, but only that he kept a shop, and used the mistery of making Candles, but if the return had been that he used the Trade of Tallow Chandlor, this had been good, for that im∣plies Tantamount, for that had been, that he had sold, for Trade is in Tradendo, which is to deliver over, and the Intent of the act is not that hee shall be punished for making of Candles, if hee do not sell them, for the sale is the wrong, and so the Servant of eve∣ry Noble man or other which makes Candles or other thing for his Master, or for his own use, should be within the penalty of the Act, and with this agreed Foster and Daniel, and for this cause only it was resolved that he should be delivered and not remanded.

Hillary 7. Jacobi, In the Common Bench. Cholke against Peter.

THE Case was this, The Lord Rich being seised of the Chase of * 1.306 Hatfeild, granted and sold to Sir Thomas Barrington Knight, and his Heires, all the Wood growing, and to grow upon a part of that, and excepted the soyl, and further that he might inclose eve∣ry sixteen Acres of that, and this to hold in severall for the Prserva∣tion of the spring, according to other Statutes of the Realm, and this Grant was confirmed by a private Act of Parliament, and that the Grantee might hold it in severall without suit of the Kings Offi∣cers, with a saving of the right of all strangers, and a Commoner put in his Beasts to take his common in one parcell of that which was in∣closed, against whom the Grantee, brought an Action of Trespass, and in this the only question was, if this Grantee of the Trees, which

had not any Interest in the Soyl, might inclose against a Commo∣ner by the Statute of 22. Ed. 4. chap. 7. was the question, for it was agreed, that if a man grant Trees growing and to grow, to one and his Heires, and except the Soyl, the Grantee hath Fee-simple in the Trees, but hath nothing in the Soyl, according to the 14. H. 2. and 3. H. 6. 45. Ives case, 5. Coke 11. So if a man make a feoffment of land except the Woods, all woods are except by that, and if Woods be cut, and after grow againe in the same place, this is also excepted; But if woods after grow in another place this shall not be excepted, for it was no wood in Esse at the time of the feoffment, so if a man grants to another to dig Coles in his Soyl, this is but to take profit, and the Soyl doth not passe, as it is agreed in 11. Eliz. Dyer 245. And it was said by Hutton Serjeant that he had seen an Ejectione Firme brought upon a Lease * 1.307 of Ʋsura terra: But it was agreed by Coke cheife Justice and Foster, that the Statute of 22. Ed. 4. chap. 7. was repealed by the Statute of 35. H. 8. for this is the negative, and for that is repeal of a former Statute, but if the last had been in the affirmative other∣wise it should be, and it was also agreed that this was not within the Statute of 35. H. 8. for that appoints of what age the wood shall be when it shall be inclosed, and by this recompence is given to the Commoner; but here it is not averred by pleading of what age this wood was which was inclosed, and for that it was ad∣judged that the Action is not maintainable against the Com∣moner, see Pasche 8. Jacobi for another argument at the Bar, and also by the Judges.

Hillary 7. Jacobi, 1609. In the Common Bench. Vivion against Wilde.

A Man was bound in an Obligation to another with Condition, to stand to, abide, and performe the award of two Arbitra∣tors, * 1.308 and before the award, by his writing the Obligor revok∣ed the authority of one of the Arbitrators: And it was agreed by all, that this Obligation is become single without Condiion, and yet it was not pleaded that the Arbitrator had notice of the revo∣cation before the award made: And yet for that it was pleaded, that Revocavit, it was agreed that that implies notice, for with∣out notice it is no revocation: But it was agreed that if a man sub∣mit himselfe to the award of another, and after he revokes his authority: But before the Arbitrator had notice of that he makes the award, the award is good and shall be performed; so if a man make a Feoffment and Letter of Attorney to make Livery:

And before Livery made he revokes the power of the Attorney: But before notice the Attorney makes Livery, this is good, but if the Feoffor makes a Lease or feoffment to another before the Livery made by the other, this is a Countermand in Law, and shall be good without notice, for Fortior est dispositio legis quam hominis: But where a man makes actuall revocation of the autho∣rity, and before notice the other executes his authority, and in pleading the other pleades; Quod revocavit, the other party may reply, Quod non revocavit, and give in evidence that he hath no notice of that before the execution of his authority, and this is good, for without notice it is no revocation, where revocation is the act of the party. The case is entred Trinity 7. Jacobi Rotulo 2629. Vivion against Wild.

Hillary 7. Jacobi, 1609. In the Common Bench. Smallman against Powys.

A Man made a Lease for life rendring Rent, and after the Les∣sor * 1.309 by Indenture in consideration of fifty pound, deviseth and granteth the Reversion, to have from the day of the date for 99. yeares rendring a Rent also, which was lesse then the first Rent, and the Grantee of the reversion destraines for the rent reserved upon the Lease for life being behind: and the sole question in this case was, if the reversion shall passe without Attornment, and it was said, that in all cases where a use may be raised by the Common Law, and that it shall be performed by order of Chan∣cery, that in these cases, the use shall be executed by the Sta∣tute * 1.310 of 27. H. 8. of uses; and one case was cyted by Harris Serje∣ant 14. and 15. Eliz. where the Brother was Tenant in tayl, the remainder to his Sister in tayl, the Brother by Deed which was Indented in parchment, but made in the first person, and no men∣tion of Indenting in the Deed, and the Deed was Inrolled with•…•… three moneths, and after Livery and Seisin was made, and it w•…•… adjudged that the Deed enures as a Bargaine and Sale, and that nothing passes by the feoffment, so that it was no discontinuance, but that the Sister might enter after the death of her Brother with∣out Issue.

Coke cheife Justice said, that it was a good Bargain and Sale, though that the words Bargain and Sell were not in the Deed, but he conceived if a Letter of Attorney be incerted in the Deed, so that it may appear that the intent of the parties is, that it should not enure as a Bargain and Sale, but as a feoffment, there it is other∣wise, so if a man covenants to stand seised to a use, if it be in con∣sideration

of money, and the Deed is inrolled: there this shall e∣nure well, as Bargain and Sale, as it was adjudged in Bedels case 7. Coke 40. a. but the Statute of 27. H. 8. of inrollments doth not extend to a Tearme, for the words of the Statute are, that no freehold shall passe, &c. But it seemes in the principall case, that the Statute of uses, executes the use which is raised by this Grant, and that the Grantor shall stand seised, &c. And all the Justices insisted strongly upon the Limitation of the Estate, from the day of the date of the Grant and the Reservation of the Rent immedi∣atly, and upon this concluded, that it was the intent of the parties that the Grantee should have the Rent reserved upon the first Lease; and should pay the Rent reserved upon his estate, and that when words of diverse natures are incerted in one conveiance, the Grantee hath election to use which of them that he will, as it ap∣peares by Sir Rowland Haywards case, and by Danyel, if a man makes a Bargain and Sale in english, and makes Livery, Secundum for∣ma Chartae, this shall not be good: But if it be in Latine other∣wise it is, for this word Vendo is compounded of Do, and it is an apt word for Sur. that Livery might be made: And agreed all that the reversion passes well without Attornment, and that these words Demise and Grant shall be taken and enure to a Bargain and Sale, and Judgement was given accordingly.

A man made a Lease for yeares, to two if they lived so long, * 1.311 and it was resolved by the Court, that this determines by the death of one of them, according to the resolution in Bradwells Case 5. Coke 9. a. and Judgement was given accordingly, and there the case of Trupenny was recited, which was this; Lands was let to one for one and twenty yeares, if the Husband and wife, and the Issue male of their Bodies so long live, and it was there adjudged, that the Lease doth not determine, during the lives of any of them, for in this disjunctive, it is referred to an Inti••e Sentence, and is as much as if he had sayd, if the Husband or the Wife, or the Issue of their Bodies so long live.

Hillary 7. Jacobi 1609. In the Common Bench. Borough of Yarmouth.

THE King John by his Letters Patents granted that the Burrough of Yarmouth should be incorporated, and the grant is made * 1.312 Burgensibus without naming of their Successors, and also he gran∣ted, Burgensibus teneri placita coram balivis, and in pleading it was not averred that there were Bailiffs there, and it was objected that the Burrough cannot be incorporated, but men which inhabite in that,

but to that it was resolved that the Grant is good, and the Lord Coke sayd, that he had seen many old Grants, to the Citizens of such a Town and Good, and so that the Grant Burgensibus, that the B••rrough should be incorporated, being an old Grant should have favorable construction, but the doubt was, for that that it was not averred that there were Bailiffs of Yarmouth; and if a Grant to hold Pleas, and doth not say before whom, the Grant is voyd, according to 44 Ed. 3. 2 H. 7. 21 Ed. 4. and for that it was adjourned: But the opinion of all the Court was that the Grant made Burgensibus was good without naming of their Successors, as in the case of Grant civibus, without more.

Note that Executors or Administrators shall not finde speciall Bail for the Debt of the Testator, though that the debt be for a great sum * 1.313 as three thousand pound or more, for it is not their Debt, nor his Body shall not be lyable to execution for that.

43 Ed. 3. Suit was commenced, hanging another Writ, it is a * 1.314 good Plea, though that the Writ was returnable in the Common Bench, and the last Suit was begun in a Base Court, but if so be, and doth not appeare to this Court, that the Plaintiff begun suit in a base Court, for the same Debt, for which the Suit is here begun Attachment shall be awarded, see 2 H. 6. 9 H. 6. but this ought to appear to the Court by Affidavit, &c.

Hillary 7 Jacobi 1609. In the Common Bench. Chapman against Pendleton.

IN second deliverance, the case was this, A man seised of a house * 1.315 and fifty Acres of Land held by Rent, fealty, and Harriot service, enfeoffs the Lord of three Acres parcell of the Land, and after in∣feoffs the plaintiff in this Action of three other Acres, and upon this rhe sole question was, if by this Feoffment to the Lord of parcell Harriot service is extinct or not.

Harris Serjeant conceived that the Harriot remaines, for he sayd * 1.316 that it is reserved to the Reversion of the Tenure, but it is not as anu∣all Service, but casuall, and it is not like to rectify, for that it is in∣cident to every service, And by 43 Ed. 3. 3 It is no part of the service but Improvement of the service: And Bracton in his Tractate De Relevijs 2 Booke 2, 7. saith, that Est alia prestatio vocata Harriot &c. Que magis fit de gratia quam ex Jure, and it is not like to a releife, see the Booke at large, and he agreed that if the Tenant had made fifty severall Feoffments to fifty severall men, that every of them shall pay a severall Harriot, as it appears by Bruertons Case, 6 Coke

1. a, 34. Ed. 3. Harriot 1. 2 Ed. 2 Avowry 184. 〈◊〉〈◊〉 Ed. 2. Ibidim 206. 11 Ed. 3. Avowry 101. 24 Ed, 3. 73. a, 34 Assise 15. 22. Ed. 4. 36. 37. 29 H. 8. Tenures 64. But he grounded his Argument principally upon Littleton 122. 223. Where it is sayd, that the reason why Ho∣mage and Fealty remaine, if the Lord purchase part of the Tenan∣cy is for that that they are of annuall Services, and it seemed to him, that Littleton is grounded upon 7 Ed. 4. 15. Extinguishment 2. 8 Ed 3. 64. 24. Ed, 3, B. Apportionment last case, which accords the reason, and upon this he concluded, that for that that the Harriot is not annuall, it shall not be extinct by the Feoffment but re∣maines, but he agreed if a man makes a Lease for years rendring Rent, and parcell of the Land comes to the Lord, the Rent shall be appor∣tioned if it be by Lawfull means, as it appears by 6 R. 2. F. Quid Juris clamat 17. Plesingtons Case, and 24 H. 8. Dyer 4. 1. Rushdens case, by which, &c.

Nicholls Serjeant, that it hath been agreed that it is intire service, * 1.317 and that then he concluded upon that that it shall be of the nature of other intire services, as it apperrs by 2 Ed. 2. Avowry 184. and 34 Ed. 3, F. Harriot 1. 5. Ed. 2. Avowry 206. And he agreed that in the case of Littleton the Homage and Fealty remain, and the escuage shall be apportioned, but this is not for the reason alledged in Little∣ton, that is, for that that they are not annuall services, but for that that the Homage is incident to every Knights service, and as the Lord Coke sayd, fealty is incident to every service in generall, and the Te∣nant shall make Oath to be faithfull and loyall to his Lord for all the Tenements which he holds of him, and the reason for which the Escuage shall be apportioned, is for that that it is but as a penalty which is inflicted upon the Tenant for that that he did not make his services, as it appears by the pleading of it, and shall be apportio∣ned according to the Assesment by Parliament, and by 22 Ed 4. It appears that this purchase by the Lord, is as a release, and if the Lord release his services in part, this extincts the services in all, and he sayd there is no difference where an intire service is to be payd, every third or fourth year, and where it is to be payd every year as to that purpose, and yet in one case it is annuall, and in the o∣ther it is casuall, and yet in both cases if the Lord purchase parcell of the Land of the Tenant, all the intire services shall be extinct and gone, though that they are to be performed every third or fourth year, by which, &c.

Foster Justice, that the Harriot is entire service, and for that * 1.318 though that it be not annuall, it shall be extinct by purchase of par∣cell of the Tenancy by the Lord, as if a man makes a Feoffment with warranty, and takes back an Estate of part, the warranty is extinct, as it appears by the 29. of Assise; so if a man hold his Land by the ser∣vice

to repaire parcell of the fence of a Park of the Lords, and the Lord purchase parcell of the Tenancy, the Tenure is extinct, as it appears by 15 Ed. 3. And it is agreed in the 21 H. 7, In Kellawaies Reports by Frowick, that there is no difference between Harriot and Releife, and Releife shall be extinct, and so he concluded that the Harriot is extinct. * 1.319

Danyell Justice accordingly; and he said that this purchase shall be as strong as release: And if the Lord hath released the service intire for part, it shall be extinct for all, and if Tenant holds by Suite to the court of the Lord, and the Lord purchase parcell of the Tenancy the Suit is extinct, as it appeares by 27. H. 7. and Fitz. Na. Bre. And so concluded that the Harriot service is ex∣tinct by the purchase aforesayd.

Warburton accordingly: And saith that in Littletons Case, the Homage and Fealty shall remain, for they are personall ser∣vices, * 1.320 and for that shall remaine intire, and of Rent shall be an apportionment by the Statute of Westminster 3. De quia emptores terrarum: But for other intire services by the purchase of the Lord, be they annuall or casuall, and they are extinct, and 21, Edward 4, was a Suite for a Hawke, which was kept back twenty yeares, and so for Suit if the Tenants make a feoffment to diverse, they shall make but one Suit, but they all shall make contribution to the Suit, but if the Lord purchase parcell, he can∣not make contribution: And though that the Homage and Feal∣ty are personall services, the Horse and Hawke are of the nature of land, so the Harriot is of his goods, and if the Tenant hath no goods, the Lord shall loose it, and for that he concluded as a∣bove.

Walmesley accordingly: And he said, if a Tenant hold by in∣tire * 1.321 services of two Lords, and one purchase parcell of the Tenancy, all the intire services shall not be extinct, but the other Lord which did not purchase, shall have them, for Res inter alios acta, nemi∣ni nocere debeat: To which Coke cheife Justice agreed, and he said if Harriot custome be due, peradventure it shall not be extinct by purchase of parcell of the Tenancy, for that is personall, and it is not Issuing out of land, but for intire services, which are Issuing out of land, he said there is no difference betwixt annuall services and casuall services which are intire, and so he concluded, as a∣bove.

Coke cheife Justice accordingly, and he said there is no diffe∣rence * 1.322 between annuall intire services and casuall, so that they are services to be paid at the death or alteration of every Tenant, or otherwise, but he said there is no doubt, but that Rent service shall be apportioned, though that the Lord purchase parcell, be that

in the Kings case, or of a common person, and this by the com∣mon Law without the aid of any Statute, for there is not any Statute that shall aid that, if it be not remedied by the Common Law, and he said that some Intire services may multiply, as if a man holds by payment of a payre of gilt Spurrs, or of a Hawke, or a Horse, or others such like, and makes a feoffment of parcell, the Feoffee shall hold by the same intire services: But if the Te∣nant hold by personall services, as to cover the Table of his Lord, or to be his Carver, or Sewer at such a Feast, or such like, these personall services cannot multiply, if the Tenant makes a feoffment of part, for by this the Lord may be prejudiced, for peradven∣ture at his house he will not include them, but he may distrain every of them to make the service: And he saith the reason for which Knights service shall be apportioned, is for that it is for the publick good, and for the good of the Common Wealth▪ But so are not the other personall services, and in the principall case he conceives, that if the Tenant had made a feoffment first to a stranger, and after the stranger had infeoffed the Lord, that by that all the intire service shall not be extinct, for by the feoff∣ment of the estranger, was severence of the services, and he holds by a Harriot as well as his Feoffor, and for that nothing shall be extinct, but the Harriot due by that parcell, of which the estran∣ger was infeoffed; and he agreed with Walmesley, that a Harriot custome shall not be extinct, where the custome is that every Te∣nant shall pay a Harriot, for there it is paid in respect that he is Tenant, and custome shall not be drowned by unity of Tenancy and Signiory: And for that he concluded that the Harriot for that, that it was intire service though that it were casuall and not annuall, that yet it shall be extinct, and Judgement was given ac∣cordingly.

Hillary 7. Jacobi, 1609. In the Common Bench. Michelborne against Michelborne.

UPON a motion made for consultation upon Prohibition awarded: It was said by the Lord Coke, that no Subject of * 1.323 the King, may trade with any Realme of Infidells, without li∣cence of the King, and the reason of that is, that he may resin∣quish the Catholick faith and adhere to Infidelisme, and he said that he hath seen a licence made in the time of Ed. 3. where the King recited that he having speciall trust and confidence, that his Subject will not decline from his Faith and Religion, licenced him

ut supra) And this did rise, upon the recitall of a licence made to a Merchant to trade into the East Indies.

Hillary 7. Jacobi, 1609. In the Common Bench. Reade against Fisher.

IN debt the Defendant exhibits his suit in the Court of Requests, * 1.324 and there the Plaintiff in that Court denied, that the debt was paid, and the Court of Request awarded an Injunction, and up∣on Information of that, this Court awarded a Prohibition to in∣hibit the Suit there.

Hillary 7. Jacobi, 1609. In the Common Bench. Mors against Webbe.

IN Replevin the case was this; A man was seised of two Vir∣gates * 1.325 of Land, and prescribed that he and his Ancestors, and all those whose Estates he hath in the said Virgates of Land, have used to have common in the feilds, &c. That is, when the feilds are fallow all the yeare, and when they are sown with Corn or otherwise severall, when the Crop is mowed and removed, for two Horses, four other Beastes, and a hundred and twenty Sheep, as appertaining to the said two Virgates of Land: The Defen∣dant traverseth the prescription, and upon this they are at Issue, and the Jury found that there is such prescription: But further they say, that the Plaintiff made a Lease of six Acres parcell of the said two Virgates of Land in one of the feilds of, &c. with the Common of that thereunto belonging for the Tearme of ten years, and the Beastes for which the Replevin was brought, were in another feild of, &c. And if the prescription be suspended or remaines, they praied the advise of the Court, and it was agre∣ed that common appendant and appurtenant was all one to the severance, for if such a Commoner grant parcell of that Land to which the Common is appurtenant, or appendant, the Grantee shall have Common, Pro Rata, but if a commoner purchase parcell of the Land, in which he hath Common appurtenant, that this extincts all his Common: And it was agreed that Common may be appendant to a Carve of Land, as it appeares by the 6 Ed. 3. 42. and 3. Assise 2. as to a Mannor, but this shall he intended to the Demesnes of the Mannor, and so a Carve of Land consists of Land, Meadow, and Pasture, as it appeares by Tirringhams case 4. Coke 37. b. And Common appendant shall not be by prescription, for

then the Plea shall be intended double, for it is of common Right, as it appeares by the Statute of Morton chap. 4. And the common is mutuall, for the Lord hath Right of Common in the Lands of the Tenant, and the Tenant in the Lands of the Lord: And it was urged by Nicholls Serjeant, that the Common shall be appor∣tioned as if it were Rent, and that the Lessee shall have Common for his Lease, and then the Lessor hath no Common appurtenant or appendant to the two Virgats of Land, and for that the Prescrip∣tion was not good.

Coke cheife Justice, if it had been pleaded, that he had used to have Common for the said Beasts Levant and Couchant upon the said Land, there had been no question but it should be apporti∣oned, for the Beastes are Levant and Couchant upon every part, as one day upon one part, and another day upon another part, and for that extinguishment or suspention of part shall be of all, as if a man makes a Leafe of two Acres of Land, rendring Rent, and after bargaines and sells the reversion of one Acre, there shall be an apportionment of the Rent, as well as if it had been gran∣ted and attornment: And he agreed that if a man have Common appurtenant, and purchase parcell of the Land in which he hath Common, all the Common is extinct, but in this case common appendant shall be apportioned for the benefit of the Plow, for as it is appendant to Land, Hyde, and gain: And in the principall case there was common appendant, for it was pleaded to be be∣longing to two Virgats of Land, and for commonable Beastes: And he conceived also that the prescription being as appertaining to such Land, that this shall be all one, as if it had been said Le∣vant and couchant, for when they are appurtenant, they shall be intended to Plow, Manure, Compester, and Feed upon the Land: And also he conceived that the right of Common remaines in the Lessor, and for that he may prescribe, for after the end of the Tearme shall be returned, and in the intermin he may Bargain and sell and the Vendee shall have it, and shall have common for his Portion.

And Walmesley Justice agreed to that, and that during the * 1.326 Tearme the Lessor shall be excluded of his Common for his pro∣portion.

Foster Justice agreed, and that the possession of the Lessee is the * 1.327 possession of the Lessor, but he conceived when the Lessor grants to the Lessee six acres of Land in such a feild where the Land lies, and then the Beasts were taken in another feild: And so they agreed for the matter in Law, and also that the pleading was ill, and so confesse and avoid the prescription: But upon the traverse

as it is pleaded, the Jury shall not take benefit of it, and Judgement was given accordingly.

Termino Pasche 7. Jacobi 1609 In the Common Bench.

THOU art a Jury man, and by thy false and subtill means hast * 1.328 been the Death and overthrow of a hundred men, for which words Action upon the case for slander was brought, and it seemed to Coke cheife Justice that it did well lye, if it be averred that he was a Jury man, and so of Judge and Justice, for Sermo relatus ad personam intelligo debet de qualitate persone, as Bracton saith, and in the like Action brought by Butler, it was not averred, that he was a Justice of Peace, and resolved that an Action upon the case doth not lye.

But Walmesley Justice conceived that an Action doth not lye, for one Juror only doth not give the Verdict, but he is joyned with his Companions, and it is not to be intended that he could draw his Companions to give Verdict against the truth, and false and subtill means are very generall.

Warburton Justice agreed with Coke, and conceived that the A∣ction well lies, being averred that he was a Jury man, as if one calls another Bankrupt Action well lies if it be alledged that the * 1.329 Plaintiff was a Tradesman, and it is common speaking that one is a Leader of the Jurors, and a man may presume that other Jurors will give Verdict, and may take upon him the knowledge of the Act.

Walmesley conceived that the Action did not lye, for that the words are a hundred men, which is impossible, and for that no man will give any credit to it, and for that it is no slander, and for that Action doth not lye, no more then if he had sayd that he had kild a thousand men, But Coke, Warburton, Daniell, and Foster, a∣greed that the number is not materiall, for by the Words his malice appears, and for that they conceived that the Action doth well lye.

Pasch. 7. Jacobi 1609. In the Common Bench. Denis against More.

ANthony Denis Plaintif in Replevin, William More Defendant, * 1.330 the case was this, Two joynt Lessees for life were, the Re∣mainder or Reversion in Fee being in another person, he in Rever∣sion grants his Reversion, Habendum, the aforesaid Reversion, after the death, surrender, or forfeiture of the Tenant for life, it hapneth,

that the Lease determines, for the life of the Grantee, and Re∣mains to another for life, and resolved that this shall be a good grant of the Reversion to the first effect of Possession, after the Deaths of the Tenants for life, according to the 23 of Eliza. Dier 377. 27. And it shall not be intended to passe a future interest, as if it were void of the other party, and so was the opinion of all the Court, see Bucklers case 2. Coke 55. a. and Tookers case 2. Coke 66.

Upon a Fine the first Proclamation was made in Trinity Tearm 5. * 1.331 Jacobi.

And the second in Michaelmas Tearm 5. Jacobi.

And the third in Hillary Tearm 6. Jacobi, where it should be in Hillary Tearm 5. Jacobi.

And the fourth and fifth in Easter Tearm 6. Jacobi.

And this was agreed to be a palpable Errrour, for the fourth Pro∣clamation was not entered at all, and the fifth was entered in Hilla∣ry Tearm 6. Jacobi, where it should have been in Hillary Tearm 5 Jacobi, and it shall not be amended, for that it was of another Tearm, and the Court conceived that this was a forfeiture of the Office of the Chirographer, for it was an abusing of it, and the Sta∣tute * 1.332 of 4. H. 4. 23. and Westminster 2. Are that Judgement gi∣ven in the Kings Court shall stand, untill they be reversed by Er∣rour.

A man is bound in an Obligation dated the third of January, and * 1.333 by Release dated the second day of the sayd Moneth of January, re∣leases all Actions, &c. From the beginning of the World untill this present day, and delivered the Release after he had delivered the Obligation.

And Coke cheife Justice conceived, that a Release of all Actions untill the Date, shall not discharge duty after, but a Release, Ʋs∣que confectionem presentium, that discharges Duties after the Date, and before the Delivery: But he conceived that the Day of this present time shall be the Day of the Date, and it shall not be aver∣red that it was delivered 20. years after, and it shall not wait upon the Delivery of the Deed.

A Writ of Dower was brought by Frances Fulgham against Ser∣jeant Harris the younger in this manner, Precipe, &c. Quod, &c. * 1.334 Frances Fulgham, Widdow, where the form in the Register (Que fuit uxor) and not Widdow, and the words of the Writ are, Ra∣tionabilem detem Tenementorum que fuerunt Fran. Fulgham quon∣dam viri su••, and yet it was resolved to be Errour, see the Regi∣ster, and yet it doth not vary in substance, and 38 Ed. 3. In re

nisi sunt, all one, yet for that the forme in the Register is other∣wise: The Justices would not amend it.

John Warren Plaintiff in Trespasse, and Ejectione Firme against * 1.335 Cicely Spackman, it was resolved that the admittance of a Copy-holder for life was sufficient for him in remainder.

In a Writ of Dower by Mistris Fulgham upon Ne Ʋnques * 1.336 couple &c. pleaded, a Writ was awarded to the Arch-Bishop (in the time of the vacation of the Bishoprick of Lychfeild and Coven∣try) who returned that he had a Delegate, which made a Com∣mission to Babington Chancellor of the said Diocesse, to make inquiry, and certificate of the said matter, which have certified that they were lawfully coupled in lawfull matrimony: And ad∣judged without question, that the return was not good, for the Arch-Bishop himselfe ought to execute it, and Delegata potesta•• non potest delegari, and for that it was ordered that he should a∣mend her Certificate.

See the Statute of 5 Ed. 3. That an Arrest, Eundo & rediundo, * 1.337 from celebrating divine service, And it seemed to the Justices, that such Arrest is not lawfull, for he ought to be priviledged rather then a man which comes to any Court, to procecute or defend a∣ny suit here.

Pasche▪ 7. Jacobi, 1609. In the Exchequer. The Duke of Lenox case.

IN Trespasse the case was this, the King by his Letters Patents * 1.338 created the Duke of Lenox Alneger, and he made his deputy: And the Duke by the said Letters Patents of the King, was to measure all Clothes, and to have so much for every Peece, and to search and to view that if it be well and sufficiently made or not, and he made his Deputy, which offers to measure, search, and view, certain parcell of Worsted, and demanded the duty due to the Alneger for that, and for that, that the owner refused to pay it, he seised certain peeces of Worsted, and kept them, upon which this Action was brought.

And Haughton Serjeant for the Defendant, conceived that the * 1.339 sole question rests upon these Letters Patents of the King, and for that he would first consider.

First if these duties of Subsidies and Ausnage are due by the Common Law, and if they are not due by the Common Law,

then if they are due by Statute Law: And if they be due, nei∣ther by the Common Law, nor Statute Law; then if the King by his Letters Patents may grant it.

And to the first he said: That Subsidy is ayd or help: And there are two manners of ayd, one which is Inheritance in the King, as ayd to make his Son Knight, or to marry his Daughter, and others which are given by grant of others, and these are not In∣heritances in the King; and these duties were not demandable by the Common Law, nor by Custome: And this appeares by the 25. Ed. 3. 6. Where any prises were demanded which were due by the common Law, and some which were not due, and subsidie for Woolls were not due by the Common Law, but it was granted to the King and is now due, but this is by grant, and not by the Common Law, and in the 14. Ed. 3. A Statute was made for the King for his subsidy for Woolles, what part he should have, which part was given to him in quantity; and in time of H. 6. A Statute was made by which subsidy was given to him during his life, and 36, Ed. 3. Subsidy was granted for three yeares, and after should not be any subsidy paied, as appeares by 45. Ed. 3. And if subsidie were not due by the Common Law for Woolles, then may it be concluded, that it was not due for clothes, for Woolles grow without mans labour, and the 11. H. 4. and 13. H. 4. The King makes a grant of Alnage of clothes, and a Writ is awarded to the Mayor and Sheriffs of London, to give possession to the Patentee, which returnes the Writ, that the Office was not granted before this time: And the Statute of 24. Ed. 3. was the first Statute that gave profit to the King for clothes: But he granted that the Office of Alneger was of ancient times, and an ancient Office, but it was no Office of profit, but an Office of Justice and Right; and no Fee was due for the exer∣cising of it, and that 1. Ed. 2, was a Grant of the Office of the Alneger, and 11. H. 4. was a Grant of the Office of Alneger for Canvas, but it doth not appeare by any account, that the King had any profit for the Alnage it selfe, or upon the said Grants, either before or after, and allowing that there were accounts for Cloth, yet it doth not appeare that there were any accounts for Worsteds, The Statute of 27. Eliz. gives subsidy of four pence for every broad Cloth, so that the Statute made expresse mention of broad Cloth, but there was not any mention of Worsteds, and this Statute shall not be taken by equity, though that the Sta∣tute of 1. R. 2. 12. for escapes by the Warden of the Fleet, be∣ing a penall Statute, yet for that, that it was for a generall mis∣cheife, shall be taken by equity, as it appeares by Platts Case in the Comment: So the Statute of 9. Ed 3. chap. 3. provideth that

where Debt is brought against diverse Executors, that they shall have but one Essoyn, and the Statute mentions Execurors only, yet Administrators are taken within the equity of this Statute, as it appeares by 3, H. 6. yet in this case at the Bar, the Statute of 27. Eliz. was not for the remedy of a mischeife, but is a Grant to the King, and Grant of one thing cannot be Grant of another thing, as if the King pardon an Offence, another Offence cannot be pardoned by this: As it appeares by the Arch-Bishop of Can∣terburies Case, 2. Coke, where the Statute of 1. Ed. 6. by which diverse Chantryes were granted to the King, it shall be intended a Grant within the Statute of 31. H. 8. of Monastries which was before: But further he said that the matter is insufficient to raise a duty to the King, for in vain is the property of any thing in one man if another man may charge it: And in this case the King can∣not grant these Clothes, and for that he cannot charge them, and the Letters Patents of the King are not sufficient only to charge the Goods of any man, see the case of 11. H. 4. But he agreed that if the King grant a Ferrey, and that every passenger shall pay for his passage four pence, this is good, for every man may chose whether he will passe by that or not: And none shall be con∣strained to passe by that, but Grant of the King to one, that none shall bring in any Cards into England but the Patentee only is vord; and it was adjudged in Nicholls Case in 18. Eliz. That if any man offend in not repayring of a Bridge, the King cannot par∣don it, for the Subjects of the King have Interest in that, and further he saith, that the Grant was against an expresse Statute made in 7. Ed. 4. 1. for this appoints that the Alneger shall not take any Fee, by which the Grant of the sayd Office shall be with∣out Fee, and this Grant is with a Fee, that is, so much for every Cloth, he agreed that this is an affirmitive Law, and for that it shall not bind the King generally, but when it is for determina∣tion of right or wrong, the King shall be bound by that, and the Patent is grounded upon the Statute of 27. Eliz. or 47. Ed. 3. 1. which are made for the breadth of Clothes; and here the Patent hath not any respect to it, for if the peece be but of the breadth of a foote, if it be in length according to the Statute, so much shall be payd for that as if it were a broad Cloth, and for that there is not any equity in it, that the Statute seemes to intend, for the charge ought to be correspendent to the quantity of the Cloth, as 41. Ed. 3. 16. Avowry for distresse of sixteen Oxen for nine pence Rent, and adjudged that it was found outragious, and therefore he was amerced for taking of an excessive distresse, and so he de∣manded Judgement for the Plaintiff.

Dodridge the Kings Serjeant, that the question is if the Alne∣ger * 1.340

may meddle with this new kind of Drapery and shall take Fee for that, and it seemes to him that he may meddle with all things, which consists in Measure, Waying, and Searching: And may exercise his Office in this for necessity of Merchandise, for Com∣mon Wealth cannot consist without commerce, and Pecunia est re∣rum mensura, and provides to make recompence in value for every thing, as it is said by Keble 12. H. 7. 24. b. and then to reduce all other things in certain, for it is the certain value of money, is known to be a direct meanes to know the quantity of all other things, and that is by waight and measure, &c. And for this for the necessity of commerce, there ought to be a publick Officer, which shall have the care and charge that such things shall be well and duly made, for the profit and benefit of the Common Wealth, and this. Officer is as ancient as there hath been any commerce with∣in this Realme, and he made illustration thereof by diverse Rolls of the Exchequer in time of 2 H. 4. By which it appears, that then there were Marts for cloth: And that then was an Officer, to search, measure, and see the said clothes opened, for then was an Officer made of purpose to measure and search the clothes, which were sold in a Faire at Worcester, by which Rolls also it ap∣peares, that there was an Assise of breadth and length of clothes before any Statute for that purpose, by the Statute of Magna Charta, made 9. H. 3. chap. 25. It is provided that una mensura, and una latitudo pannorum tinctorum, russatorum, & Haubergettarum, that is, Duo ulne infra list as per totum Regnum Anglie, and 1 Ed. 1. a∣mongst the Rolls of the Patents in the Tower, it appears that the Of∣fice of Alneger was granted De omnibus pannis tam ultra mare quam infra mare: And 1. R, 2. was another Grant of the Office of Alneger, and 14. R. 2. the King granted the Office of Alneger in Ireland, and by the Statute of 5. Ed. 2. it is provided that the estretes by the Warden of the Alnage should be delivered into the Exchequer to the Treasurer of the Exchequer, and 17. Ed, 2. the Office of Alneger was granted to one J. Griffin of all the clothes made beyond Sea, till the 1. of Ed. 3. by which the use appeares in the time of the Raigne of King Ed. 3. upon which records he obser∣ved, that the Office of an Alneger is an ancient Office, and that he hath power to see, search, and measure, omnies pannas tam ultra marinas quam infra marinas, without any exception, and for that it cannot be denied, but that he ought to meddle with wollen clothes, and he ought to meddle with all for one selfe same end and purpose, that is to fasten a Seale to them. Secondly, That the Law depends upon the Art and invention of Artists, then no Law shall prevent more mischeifes, for there is no end of Art and Inven∣tion. And thirdly, and that in this Individuo, for there is not any In∣vention

made of Worsteds, till the time of Ed. 2. for it was a new commodity, and then first Invented, and after it was first invented, there was immediately an Officer made for that, and for this it ap∣pears that 1 Ed. 3. Nicholas Shoverler was made generall Alneger for that, and after that came Wadlowes and Sayes, and also an Al∣neger was immediately made for them, by which it appears, that so soon as new stuff was invented by the Artist that there was a new Officer to search, and see that, and prevent that deceit should not be used in it, and then for the Fee of the Alneger, that is groun∣ded upon a just Law, which is the Law of Retrebution, for Dignus est operarius mercede, and though it doth not appear by their Pa∣tents, that they had taken any Fee for the exercising of their sayd Office, yet it appears by their Accounts that they have had a Fee for it, and if they have no Fee of the King, then it follows that they ought to have a Fee of the Subject by Common Law, the Office being for the publick good, and the Patent is, upon which the Duke shall have the sayd Office as hitherto they have had it, and it appears by the 11 of H. 4. 58. and the 12 of H. 4. That the King may grant and annex Fee to a necessary Office to be taken of the Subjects, but it was objected that the Alneger had no Fee, and if he had that, he was abridged of that by the Statute of 2 Ed. 3. 14. Where it is sayd that they shall be ready to make proofe; when they should be required to measure, without taking any thing of the Mer∣chant, but this refers only to the Maiors and Bailiffs of Towns, where such Cloathes shall come, and not to the Alneger, and that the Statute of 11 Ed. 3. chapter 3. consists upon two parts.

First, that Clothiers may make Cloth of what length and breadth that they will.

The second, that no Cloth shall be brought into England, Wales, or Scotland, but that which is made in them, and then if the Clo∣thiers have such liberty to make Cloath of what length and breadth they will, then there is no need of Alneger: As to that it was an∣swered, that there was need of him to see and search the Good∣ness of that, as well as the length and breadth, And also the Sta∣tute of 25 Ed. 3. chap. 4. Provides that all Clothes vendable, which shall be sold whole Cloathes in England, in whose hands soever they are, shall be measured by the Alneger of the King, and the Statute of 27 Ed. 3 chapter 4. Statute the first, provides that no Cloathes shall be forfeited, though they be not of the same Assise, but the Alneger of the King shall measure the Cloath and mark it, with such a mark, that a man may know how much that contains; so for these Statutes, and for the reasons aforesaid it appears, that it belongeth to the Office of an Alneger to survey, measure, and marke Cloathes, as well by the Common Law, as by the Statute

Law; It was objected, first that the Statute of 27 Ed. 3. limits and ap∣points that the Alneger should measure broad Cloath, and doth not make mention of any other Cloathes, but broad Cloathes, and for that it seems that he shall not meddle with any other Cloathes, but it appears by diverse Accounts, that he should meddle with Wadlowes and Sayes, and the Statute of the 17 R. 2. chap. 2. Provides that none shall sell any Cloath before that it be measured by the Alneger of the King, and that none shall make any deceit in Ker∣seys.

The second Objection that Cloathes of Lesser Assise then halfe broad Cloath, the Alneger shall take nothing by the Statute of 27 Ed. 3. This is intended of Broad Cloath which hath used to be sold, and these be in lenght above the broad Cloath, and in breadth as Kerseyes, and others were but as Remnants which have not been used to be sold, no subsidye was due by the Common Law, for that is granted by the Statute of 27 Eliz. And in this Grant two things are to be considered.

First, the Statute of 2 Ed. 3. and the Statute made at Northampton, where it was petitioned to the Parliament, that the King would re∣mit the penalties, aad the Kiug should have recompence for the loss, and for this the Statute gives subsidy, this was no private gift, but a publick gift, and the reason of this was the retribution of his loss and the King payd for it, and that for this he should have a Subsi∣dy.

Secondly, Woolls are the continuall Treasure of the Realm, and let them be of what nature they will they are called Panui: And for that when the King hath a settled Inheritance, it is no reason that the slight of an Artist should prejudice the King: And it appeares by the Statute of 11 H. 4. 7. that was made to prevent the bar∣relling of Clothes, and the making of them into Garments, and the transporting of them beyond Sea.

And also the third reason is usage, for all other clothes pay Subsidy, and there is no other Law to charge them but the Statute of 27 Ed. 3. 4. That this subsidy is setled in the King, and no devise of man may divest it, the Statute of 27. Ed. 3. and 47. Ed. 3. Set down and alter the length and breadth of clothes, and yet the Custome remaines.

The fifth objection that the Statute doth not extend in equity to a thing which is not in Rerum natura at the time of the making of the statute which is false position, for how can makers of statutes prevent all mischeifes, Eaton and Studdes case Com. Aristotle in Ethicks liber 5. chap. 10. saith, that Equitas est correctio legis * 1.341 generatim late, qua parte deficit.

And Bracton in his first Book of new Division Ch. 3. saith, that E∣quitas

est rerum convenientia que in paribus causis, paria desiderat jura & omnia bene coequi paret & dicitur equitas quasi equalitas, and for that it is enacted by the Statute of 11 Ed. 1. Acton Burnell for un∣derstanding of the Statute, that if praysers of Goods prayse them at too high a value, that they themselves shall have them at the same price at which they were praysed, and after another Statute is made, which provides, that lands shall be extended upon a Statute, which is taken to be within the Statute of Acton Burnell, which was made before, and so it appears by Littleton that the Statute of Glocester provides, that warranty by Tenant by the Curtesie shall not bind the Heir without Assets, and an Estate tayl was not then cre∣ated but it was afterwards created by the Statute of Westminster 2. which was made the 13 of Ed. 2. Yet this Warranty shall not binde the Heire in tayl, and also two objections have been made against the Patent.

First, That it was against an expresse statute.

Secondly, That it did not observe any rate or proportion, pro∣portionable to the quantity of the peece, to that he answered, that it is not against any statute, see 7, Ed. 4. 2. 27. H, 7. 5. H. 8. 2. 1. and 2. Phil. and Mary: It is not against any of those, for those provides and ordaines, that there shall be Wardens for the better performance of all things which are to be done by the Al∣neger, and doth not deprive the King of any thing given to him by any former statute, but adds further care and deligence, and when there is a Law which adds care and Manner and Forme to a former Law: That doth not abridge and deprive the former Law, of any thing given by that, and if the Wardens do not do their Office, yet that cannot prevent but that the Alneger may do it, which to him belongeth, as in 1 Ed. 4. 2. For Indentures taken in Sheriffs Turnes, which should be delivered by Indenture to the Justices, yet the Justices may proceed, though they be not de∣livered by Indenture, and so it is in 43. Ed. 3. 11. The Sheriff ought to array his Pannell four daies before the taking of that, and adjudged that if he doth not, it shall be no error in 43. Ed. 3. Assise 22. and so the Statute of 5. and 6. of Ed. 6. provides that the Mayor appoints to viewers and searchers, this doth not abridge the power of the Alneger, for this is but an addition of greater care and diligence, and by the statute of 39. and 43. Eliz. If upon a search they find any forfeyture, they shall have it, but if they do not find the Alneger may find it, and then the King shall have it.

And to the Second he answered; that true it is for every 64. of clothes, the Alneger ought to have foure pence, for his Fee, and though that some peeces of cloth are more broade then others,

yet the lobour of the Alneger to measure them is all one: So he concluded, and demanded Judgement for the plaintiff.

Hillary 7. Jacobi, 1609. In the Common Bench. Rutlage against Clarke.

IN Account the Plaintiff declares, that the Defendant hath re∣ceived * 1.342 of his money by the hands of a stranger to give an account: The Defendant pleades in Bar, that he received to deliver over to a stranger, the which he hath done accordingly, without that, that he received it to make any of account otherwise then in this manner, and it was resolved that the Plea in Bar was good without traverse, for when he received the money, he is to de∣liver it over, or to give an account of it to the Plaintiff, so that he is accountable Conditionally, but the traverse is repungnant to the Plea, though it be otherwise, or another way, against the Book of 9. Ed. 4. 15 See 41. Ed. 3. 7. 1. Ed. 5. 22. H. 6. 49: 21 Ed. 4. 4. 66, 1. Ed. 5. 2. that it is a good Bar without traverse. But Brooke in abridging the case of 21. Ed. 4. 66 in Title of ac∣count, saith, that it seemes that the traverse ought to be without that, that he was his receiver in other manner; and there and in the Book at large are, that Justices, that is, Coke, Nele, and Va∣vasor against Bryan; that it ought to be traversed: But here in the principall case, it was adjudged that the traverse made the Plea ill.

Hillary 7. Jacobi, 1609. In the Common Bench. Dunmole against Glyles.

THE case was this; Grand-Father, Father and Son, the Grand-Father was possessed of a Tearme for two and twenty yeares to * 1.343 come, devised to the Son the Land for one and twenty yeares, and that the Father should have it during the Mynority of the Son, and makes the Son his Executor and dies, the Son being within the age of one and twenty yeares, the Father enters into the Land, and makes a Lease for seven yeares by Indenture, untill the Son came to full age, the Father makes his Son his Executor and dies: The Son enters by force of the devise made by the Grand-Father: And the question was if the Son shall avoid the Lease made by his Fa∣ther and it was agreed that he might, in proofe of which a Judge∣ment was cyted which was in the Kings Bench, Mich. 5. of Eliz. Rot. 459. or 499. In the Prioresse of Ankoresse Case, where a

Tearme was devised to one, and if he died within the Tearme, then to such of the Daughters of the Devisor, which then should not be preferred, the Devisor dieth; the Tearme was extended for the Debt of the first Devisee, and then he died, the extent was avoided by the Daughters not preferred, and they grounded their Judgement upon the former Judgements in Weltden and Elting∣tons case, and Paramores and Yardleys case in the Comment. and for that the Law intends that a Devisor is Inops consillij, and for that his devise shall have favourable construction according to his in∣tent appearing within the devise, and it was said by Coke that in many cases, a man may make such an Estate by devise, that he cannot make by an Act executed in his life time, as it was adjudged in Graveners case, where a man devises his Lands to his Executors for payment of his Debts, that there the Executors have Interest, that there the Executor of Executors shal have that, and such Estate cannot be executed by Act in the life of the Devisor, and so it was concluded by them all, that the Son shall avoid the Lease made by the Father, for the Devise was Executory, and doth not vest till the full age of the Son, and then Executor, and shall avoid all Acts made by the Father, by which Judgement was given accordingly.

Freeman against Baspoule, See 9. Coke 97. b.

THE case was this; A. was indebted to B. and they both * 1.344 died, the Heire of A. for good consideration, assumed to the Administrator of B. that he would pay to the said Administrator the said Debt, and for the not payment of that, according to the Assumption the Administrator after brought an Action, and then the said Heire and the Administrator submitted themselves to the award and arbitrement of C. and became bound one to the other; to stand to the award accordingly, so that the said Arbitrator makes his award of all the matters and controversies between them before such a day, C. the Arbitrator before the day recyted the Assumpsit, and the debt as aforesaid, and agreed that the Heire should pay the Administrator so much money, and that pub∣lished according to their submission: And in Action upon the case, * 1.345 Nullum fecit Arbitrium was pleaded, and upon demurrer, it was objected that the award was void.

First, For that it was for one party only, and nothing was arbi∣trated of the other, and to prove this the Book of 7. H. 6. 6. was cited, and 39. H. 6. 9. see 2 R. 3. 18. b. And this also appeares by the pleading of an award, for he which pleades it; that he hath performed all things which are to be performed of his part:

And that the other pleades performance of all thing which are to be performed of his part, by which it appeares that there ought to be performance of both parts, and by consequence one award to both parties, according to 22. H. 6. 52.

Secondly, that the award was void, for that, that the sub∣mission was of all controversies, so that the Arbitrator deliver∣ed his award of all controversies, &c. And there was no award of the said Suit between the parties, and for that he hath not * 1.346 made an Arbitrement of all controversies, and by that the award was void, and to prove that, the Bookes in 4 Eliz. Dyer 216. Pumfreies award, and 19. Eliz. Dyer 356. 39. and 39. H. 6. 9. Where it is said, that if the submission were of all things, and the Arbitrement of one only, that is a void Arbitrement.

Thirdly, For that it was not limited within the award, at what day, nor at what place the money should be paid by the Heire to the Administrator, and for this cause also it shall be void, for it ought to be payd immediatly; and if the Heire cannot find the Administrator, he forthwith hath forfeyted his Obligation, and for that in this point it is uncertain, and for that shall be void, as it is in Samons case, 5. Coke 77. b. Where the Arbitrator a∣wards, that one party shall enter into Bond to another for injoy∣ing of certain Lands, and doth not say in what Sum, and adjudg∣ed void for the uncertainty, and so in this case by which, &c. But it was answered and resolved, that the Arbitrement was good.

And to the first objection it was resolved, and agreed, that every award ought to have respect to both parties, if it be not a matter which concernes one party only, and neither recompence nor acquittall due to the other party in which case the award shall be good: And it was resolved in the principall case, that the a∣ward was made of both parties, for one was to have money, and the other though there was no expresse mention, that the other should be discharged of his Assumpsit, yet the award was a good dis∣charge in Law, and may be pleaded in Bar upon an Action brought upon the Assumpsit, and so it was for both parties.

And to the second objection, it was agreed, that where sub∣mission is, with Ita quod, &c. as above, that there the Arbitrators ought to make arbitrement, of all the variances and controver∣sies, referred to their arbitrement, and if they do make no ar∣bitrement, of all the matters of which the submission is made, the award is void, but if the submission be generall, as of all mat∣ters in variance or controversie between them: There if the Arbi∣trator makes his award of all matters which are known to him, the award shall be good: As my Lord Coke conceived, though that

there are other matters in variance, of which the Arbitrator hath no notice, as if divers Creditors sue a-commission, upon the statute of Barkrupts, and an another person to whome the Bankrupt was indebted, doth not come in as a Creditor, nor give notice to the Commissioners, that the Bankrupt was indebted to him, he shall not take benefit of the commission, for the Commissioners can∣not releive those Creditors of which they have no notice, as it appeares by the case of Bankrupts in 2. Coke.

And to the third objection it was answered and resolved, that the award was good, notwithstanding that no place be expressed where the money shall be paid, for in Law that ought to have re∣sonable construction, and the party ought to have reasonable time for the payment of that, but Foster conceived that it is not good, for it seemed to him, that if the award shall be good, that the Obligation of submission shall be immediatly forfeyted, for that there was neither time nor place, where the money should be payd, but this was answered with the Bookes of 3. H. 7. 16. Ed. 4. Where it is said that if an Arbitrator award that one party shall pay such a sum of money at such a day, and keeps the award in his Pocket till such a day be past, that yet the Obligation shall not be forfeyted: And so it was resolved and adjudged by all the other Justices, that the award was good, and Judgement was entred accordingly.

Hillary 7. Jacobi, 1609. In the Common Bench. Foster against Jackson.

RICHARD Foster Plaintiff in Scire Facias against Anno * 1.347 Jackson and Myles Jackson Executors of Thomas Jackson, upon Judgement had against the said Thomas in an Action of Debt: The Defendants pleades that the said Thomas Jackson the Testator was taken upon a Capias ad Satisfaciendum, awarded upon the sayd Judgement, and in execution for the sayd Debt, by force of the said Capias, and there died in execution, and so demands Judge∣ment, &c. And the sole question was, if the said Testator being in execution for the said Debt by force of the said Capias, and there dies, if this be satisfaction of the Debt or not.

And Dodridge the Kings Serjeant which argued for the Plaintiff * 1.348 in the sayd Scire Facias conceived that it is no satisfaction, but that notwithstanding the Debt remaines, for the words of the Writ are, Capias ad satisfaciendum, and all others Executions, as Fire Facias, and Eligit are satisfactory: But the Capias is but a restraint of his liberty, till he hath satisfied the Debt, and for

that it is no plenary satisfaction, but only restraint of his liberty, which the Law more respects then Goods or Lands, and for that Custodia ought to be Salva & stricta: So by this the party may be Inforced to pay his Debt Salva, to the party, so that by this the party may be safely detained, till he hath satisfied the Debt, and Stricta to the King, so that by this Justice may be satisfied, and for that Bracton saith; that it is only to compell the party to make satisfaction: And it is resolved in the 33. H. 6. 47. That it is no satisfaction, but that the Body should remain as a Pledge, till satisfaction a were made, or as return Irreplevisable, and yet nei∣ther the one nor the other are satisfaction: And the words of the Writ are Capias ad satisfaciendum, the party, but if he will satisfie then there is no reason that the Defendant shall be Impri∣soned by the Writ: But if he will not pay, then he shall con∣tinue in Prison, Quousque satisfecerit, by which it appeares that the Imprisonment is no satisfaction, and it appeares also by the Register, and Fitz. Na. Bre. 246. b That if a man recover Damages of Trespasse, before the Justices of Oyer and Terminer, and hath the party in execution by force of this Judgement, now if the parry which is in execution dies in Prison, he which recover∣ed may sue Certiorari to the Justices to remove this Record into the Kings Bench, that the Justices there may make upon that Re∣cord, as the Law will in such case: And it seemes by this that the party shall have execution by Elegit, or by Fieri Facias, for it is not reasonable as it is there sayd, that the death of him which died in Prison, shall be satisfaction to the party which recovered: (but Fitzh. here saith, Tamen quere, for he doubted of that) * 1.349 but in the Register there is a speciall Writ of Certiorari to this purpose, that is to remove the Record into the Kings Bench, so that the Justices may do there upon that, as the Law will, and if the Law will not allow the party to have new execution, it were in vain to have such Certiorari, for other course cannot be ta∣ken, and the end of every suit is to have payment, and so is the Judgement that the Plaintiff should recover his Debt, and so is the Writ, and the count, and the Capias also, and to the end of Justices in Suum cuique tribuere: And the party hath not any of these ends, if the death of the Defendant in prison shall be sa∣tisfaction, and in the 47. Ed. 3. Fitz. execution 41. Persey said, that if in Trespasse the Plaintiff recover, and the Defendant is ta∣ken for the Kings Fyne, if he pray that the Defendant continue in Prison, till he have made agreement with him, perchance he shall not have Elegit, and for that being in Prison, he prayed execution of his Body, and had it, but if the party gets out that he hath no execution, that it is not his default, he shall have Elegit

after, for that, that he cannot have his purpose according to his first election. And if any be in this case, then upon that he inferrred that the party in this case may have a Fieri Facias against the Executors. And also it is resolved by the whole Court in the Common Bench, 29 H. 8. B. Execution 132. That if two are bound in an Obligation, conjunctim & devisim, the Obligee impleads one, and hath execution of his body, and after impleads the other, and condemns him, hee may have Execution against him also, for the taking of the body is good execution, but it is no satisfaction, and therefore he may take the other also: but if he have satisfied the Plaintiffe, he shall not have execution afterwards. And therefore this Order, that the Plaintiff upon an Obligation shall have but one Execution is intended such an Execution, which is a satisfaction: See 33 H. 6. 48. b. 4 H. 7. 8. 4 Edw. 4. 38. 5 Edw. 4. 4. 5 Coke 92. Blumfields case, re∣solved by all the Court, that if the Defendant in debt dye in Execu∣tion, that the Defendant shall have new execution by Elegit or Fieri Facias, for the death of the Defendant is the act of God, which shall not turn the Plaintiff to prejudice, as it is said in Trewynyards case, 38 H. 8. Dyer 60. The Plaintiff shall not be prejudiced of his Exe∣cution by act in Law, which makes no wrong to any. And to the first Objection which may be made against him, that is, That all processe are determined after the party is taken, and in execution; to that he answered, that this is where the Plaintiff hath satisfactory execution, as it appears by 41 Edw. 3. 13. where an action of Account was brought against two, one was out-lawed, and the other comes by * 1.350 the Exigent, and enters in the Court; and he which was out-lawed, obtained his charter of pardon, and for that, that processe was de∣termined against him. And the Plaintiff hath chosen to have his a∣ction against the other, he prayed that he may be discharged. But it was resolved, that the processe was not determined, nor he which was out-lawed shall not be discharged, till the Plaintiff be satisfied, by which it appears that the process is not determined till execution with satisfaction. Two other Objections also he endeavoured to an∣swer, that is, that the Plaintiff hath determined his election by taking the Capias, and that cannot resort to any other Process: and to that he agreed, that where the party hath made such election, that he can∣not resort to any other Process, during the life of the party. But if the satisfaction be prevented by the act of God, as in the principall case. But when his person which was the pledg for the debt, and was to remain in prison till the debt be satisfied, is discharged by the act of God, and the Plaintiff hath not the fruit of his Suit, nor the Judgement is not satisfied, and the Plaintiff hath done all that hee can, and there was no defect in him, it is no reason, but that he may have new processe; and the third objection is a Judgment which was

given in the Kings Bench, Pasche 43. Eliz. Rot. 58. between Willi∣ams and Curtiz: And to that he said, that he he conceived, that this was a rule for default of prosecution, for the cause was referred to Arbitrement, and so hanged for long time: and so though the Judg∣ment was directly against Law in the principall points, yet for that, that it was not upon solemn argument of the Judges, hee saith it is not to be compared to other authorities by him cyted before, for which he includes, and prayed Judgment for the Plaintiff.

Hutton Serjeant that argued for the Defendants conceived the * 1.351 contrary, and first he examined how the body of a man cometh sub∣ject and lyable to any Execution, and to that he said, that by the Common Law the body was not subject to Execution for the debt of any man, but in accompt only a Capias ad computandum lyes, and no other processe in this action, but distresse infinite till the Statute of Marlbridge, Chap. 23. and West. 2. Chap. 11. Capias was given in Ac∣compt; for by the Common Law, the Processe in that was Distresse Infinite as aforesaid, and after by the Statute of 25 Edw. 3. Chapter 17. Such like Processe was given in debt, as in accompt, and before that the body of the Defendant was not lyable to execution for debt, if it be not in the Kings case, as it appeares by Sir William Harberts case, 12. a. And upon this he inferred upon the words of the Sta∣tute of 25 Ed. 3. Chap. 17. which saith, that such like Processe shal be in debt, as were in accompt: That after the Plaintiff hath determi∣ned his election, and taken a Capias, that then he is in the same case as if it had been in accompt, and for that he cannot resort to any o∣ther Processe. And he said that the words of the Elegit and Fieri Facias do not differ in substance from the words of Capias, for there is to satisfie the party, as well as in the other: And when a man hath made his Election to have Elegit, he shall not have other Execution. But when the Defendant hath neither goods nor Lands, Then qui non habet in are licet in Corpore, and the Plaintiffe at the first when he hath Judgment hath election to have Fieri Facias, Elegit, or Capias, then he cannot have fieri facias; but if he determine his Election at the first, and sue Elegit or Capias, then he cannot have fieri facias, but may first sue fieri facias, and after Elegit or Capias, as it appears by the 15 H. 7. 15. 14 H. 7. 28. and 7 H. 6. 7. But if it be upon Statute staple, Then he may have execution for his Body, Goods, and Land together, as it appears by 31 H. 6. 47. Lynnacres Case is put in Blunfields case, 5 Coke 92. b. and 15 H. 7. 15. But the reason of this is, that a speciall Execution by statute is given in this case. And he agreed, that where a Judgement is given against 2 or 3. and the Plaentiff sue Capias against one of them, by that he hath deter∣mined his Election: So that if he dye in Prison or otherwise, he may sue another Capias against the others, but he cannot sue fieri facias,

or Elegit, as it appears by 33 H. 6. 47. before; and Blunfields case, 5 Coke 92. b. 4 H. 7. 8. And he said that the body is the principall, and becomes chargeable by statute: and it appears by 22 Assis. 43. That when the party is in Prison, that this is adjudged in Law an Ex∣ecution for the party: and further in the Booke of 33 H. 6. 47. is but the opinion of Prisot and Lacon: And the principall case there depends upon another point, Fitz. 246. before cyted, is but a quere, and Eitz. himself doubted of it; and the book of 44 Edw. 3. Fitz. Execution, 41. is but the opinion of Percye; But the Judgment upon the principall point is otherwise. And the principall case in Blunfields case, 5 Coke, was upon another point also, as it appears by the Booke, and so he concluded with the Judgment before cyted to be in the Kings Bench, Pasche 43 Eliz. between Williams and Cuttris, which was direct in the point according to his opinion, and prayed Judge∣ment for the Defendants in the Scire Facias, and it is adjourned.

This Case was argued in Trinity Tearm next ensuing, by all the Judges of the Common Pleas: and first Foster the youngest Judg ar∣gned, * 1.352 that the death of the Defendant in Prison being in Execution, was no satisfaction, but the Plaintiffe may have a new execution a∣gainst his Executors, for he said it was an old saying, That debts went before deadly sinne: And that every one ought to satisfie his debts by the Law of God, before Legacies given to charitable uses: And so by the Law of the Realm, if it be not the default of the Plaintiffe, as it was not in our Cause; for the death of the Defendant in Prison was the act of God, and the Executors have confessed by pleading that they have assets, and the Plaintiff hath nothing but griefe and pain; and he said as before, that at the Common Law no Capias lay, till the Statutes of Marlebridge, Chap. 23. and Westminster, the 2. Chap. 11. Capias was given in Accompt, and then the statute of 25 Edw. 3. Chap. 17. gives such like Processe in debt which was in Accompt, and then in Accompt Capias ad Computandum lyes, and in debt Capias ad Satisfaciendum: And if in Accompt the Defendant was adjudged to accompt, and Capias ad Computandum be awarded, and he taken by force of that, and committed to Prison, and here dyes, a new Writ shall be awarded: So in debt, if the Defendant be taken by Capias ad satisfaciendum, new Writ shall be awarded against his Executors, see 1 Edw. 3. 24. 1 H. 7. 5 Coke 92. Blundfields case; for it is on∣ly the default of the Defendant, that the debt is not satisfied, and for that it is no reason that the Plaintiff should be prejudiced by that: * 1.353 and 11 H. 4. 44. and 45. by Skreene, Debt upon an Escape doth not lye against the Executor of the Sheriff, but new Processe shall be awarded against the Prisoner which is escaped; for a man shall not take advantage of his own wrong, as in the case of Littleton. If the sonn makes disseisin, and enfeoffs the Father, which dyes, the sonne

shall not take advantage of this Discent, because he was particeps cri∣minis, and he said it was no wrong to any, if execution were made of the goods of the Testator, and it is mischievous to the Plaintiffe, for he shall loose his debt: And to the Objections which have been made, that there is an end of Processe when the Defendant is taken by Ca∣pias, and dyes in Execution, the which he agreed as long as the De∣fendant lived, but after his death he may make new election, 47 Ed. 3. Fitz. Execution, 41. by Percye. And it appears by the pleading in 17 Ed. 3. That Judgment & Execution without satisfaction is no Plea in Bar. And also he cyted the Register, 285. and Fitz. Na. Bre. 246. 19. Ed. 3. 21 H. 6. 5. where the Plaintiff had effectual execution, which was satisfaction, 44 Ed. 3. 21 Edw. 4. 1 Edw. 4. 8 H. 7. 16 H. 7. to the same purpose, for which Dodridge cyted them before. And al∣so he said, that the Judges have always had respect to the satisfacti∣on of Debts, and for that would not bayle one in Execution upon a Writ of Errour, where Errour indeed was assigned, but suffers him to remain in Prison till the Judgment were reversed. But here the Plaintiff hath neither Bale nor any satisfaction but griefe and pain: And in the 21 of H. 7. the Sheriff returned, that the Defendant had no land, but lands in use, and was adjudged that he should execute the Elegit upon these Lands, such was the respect that the Judges have to Executions, and to the Case of 35 H. 6. 47. This is but the opinion of Lacon, which erred in the principall case, and may as wel erre in this point: and his opinion also is so intricately penned, that he cannot understand it: And Martins opinion also in 7 H. 6. 7. is against the Judgment of the principall case. And to the Objection, that the Party had determined his Election by the Execution of the Capias, he agreed to that with this difference, that is, if the Plaintiff sue Scire facias, & the Sheriff levyed part, that this notwithstanding the Plaintiff may have Capias for the residue, and so Elegit after Fi∣eri facias, or Capias, for there is not any Entry made of awarding of fieri facias, or Elegit: But the Plaintiff only sued that out of the Court, see 44 Edw. 3. 18 Ed. 4. 31 Ed. 3. 17 Ed. 3. 20 Ed. 2. 22 Assis. 17. H. 7. 1. And so he coucluded that the Judgment shall be given for the Plaintiff in the scire facias.

Warburton Justice conceived the contrary, that is, that the Plain∣tiff * 1.354 in the Scire facias shall be barred: And he agreed and said, that none will deny but that Debts shall be paid, but that ought to be according to the rules of the Law: For by the Common Law the bo∣dy of the Defendant was not lyable to execution, and then it is to ex∣amine in what cases he is at this day subject to execution: and though in Trespasse Capias lyes at the Common Law, but in Debt no Capias lyes till the Statute of 25 Edw. 3. which gives the same pro∣cesse which was in Accompt, and this is as well in the Originall pro∣cesse,

as in the Judiciall, and Elegit was first given by the statute of Westminst. 2. And this was of the half of the Land: But Levari facias was at the Common Law of the profits of the Land: That in debt Ac∣ceptance and Election binds the party, and so this remains; for the said Statutes being in the affirmative, doth not take away that, nor abate it: and by that if Conusee of a statute accepts Land extended * 1.355 at too high a value, he is bound by that, 22 Edw. 3. 32. H. 6. 15 H. 7. And that when the Party hath Judgment, he hath election to have execution by Fieri facias, Elegit, or Capias, for he hath determined his Election. So if he makes his Election of a Capias at first, he cannot have Elegit after, 30 Edw. 3. adjudged 32 Edw. 3. Processe 52. according, Long 5 of Edw. 4. by Markeham and others, and the reason which is given in 47 Edw. 3. 17 Edw. 4. and 21 H. 7. that have been remembred to the contrary is only, that it is reason that the Plaintiff should have the same process: which was at the Common Law, and there was not any such processe as Capias in debt at the Common Law, and 21 H. 7. may be understood that the Elegit was not returned, and so no record of that. And 50 Edw. 3. a man may recover in Debt, and pray Elegit, and after brings Debt upon the Record, but it doth not lye. And he agreed to the Book of 23 H. 6. For there the Defendant was bound in an Obligation to make satisfaction of Debt, and hee dyed in Prison, and this cannot be satisfaction according to the Condition. And in the Case of Fitz. Nat. Brev. the same doubt of that, and this was the more strong case then the case at the Barr: and if he doubted of that, is the cause that he doubts also. And cyted Williams and Cuttis case, Rot. 88. in the point, where the reason of the Judgment was for that, that the Plaintiff had his plain and full satisfaction, and saith that it was apparent difference between that and Blunfields case, for there was 2 Defendants: and here if one dyes, there shall be no satisfaction, and so these reconciled. And so if a man be taken upon a Statute Merchant, and dyes in execution, that shall not be satisfaction, for this is speciall processe given by statutes. And 14 H. 7. 1. If a man be∣ing in Execution escape, he shall not be taken againe: and in the 14 H. 7. in debt upon an Obligation Capias profine was awarded, and the Defendant taken by that. And the Plaintiff prayed that he might be in Execution for his debt also, and could not, for that he had sued Fierifacias, and it doth not appear if the Sheriff have that ex∣ecuted or not. And so he concluded that the Judgment should not be revived by the Scire facias against the Executors, and that Judg∣ment shall be given for the Defendants in the Scire facias.

Walmsley Justice accordingly. He specially observed the forme of * 1.356 the Writ which suggests, quod executio adhuc restat facienda, &c. And to that the Defendants in the Scire facias plead that Capiás was

awarded at the suit of the Plaintiff, and upon that the Defendant was taken in execution and there dyed, by which it appears that the words and suggestion of the Writ was answered directly, and upon that the strongly relyed, and then said that there were 3▪ ways to have Execution, that is, by Fieri facias, Capias, and Elegit: And there is a speciall order to be observed in the suing of that, for a man may have Fieri ficias, and if the Defendant have not goods, may have Elegit, or Capias: But if he make his Flection to have Capias, he cannot have Fieri facias, nor Elegit, or if he sue Elegit, he cannot have a Fieri facias, nor Capias: In 33 H. 6. and 44 Edw. 3. which have been cyted, the Plaintiff sues Elegit, and after that would have sued Capias, supposing that he had not accepted the Elegit; but of the other part it was said, that the Sheriff had made Execution of it, the which he could not contradict it. And if the Plaintiff had Fieri facias, and goods delivered to him in Execution, and the Writ returned, he shall not have a second Execution: and so if Elegit ex∣ecuted and returned, 14 H. 7. 15 H. 7. and said that Executions are tickle things; for if the party escape, he delivers himselfe out of Execution, and the Plaintiff shall not have other Execution against him, for that he hath had one Execution, 2 Edw. 4. And so if a man sues a Writ of Priviledg out of Parliament, and by that is deli∣vered out of Execution, he shall not be taken again. And so if a man be delivered upon a Writ of Error, for when the Party hath made his Election to take processe against the body, it was his folly that he made such Election; for though that death be the act of God, yet for that, that statutum est omnibus semel mori, and for that God hath done no wrong, for he hath but performed his Eternall Decree, and for that it is not the act of God only, but the folly of the party to make such Election, and the Book of 47 Edw. 3. by Percy is but his opinion, and more other Books are against that, and 〈◊〉〈◊〉. H. 6. Dan∣by and Prisot are against Lacon: and though that the death of the Party in Execution is no satisfaction in rei veritate, yet in Law it is sa∣tisfaction, for that that the party hath no other remedy, the Writ in the Register is certiorari ad faciendum in omnia & singula que se∣cundum legem & consuetudinem fieri, &c. And there is not any Law nor Custome to warrant any such Course, and here is not any other proceedings upon it. But if he may have a Writ of Scire facias osten∣surus quare satisfactionem habere non debet, then it may be that the Defendant's ought to give another answer, but for that, that there is not any such Writ, it seems that Judgment shall be given for the Defendants.

Coke chief Justice seemed the contrary, and he agreed with Foster, * 1.357 and he said, that it is vexata et spinosa questio, for the Books vary, and great arguments have been made of both parts. There are three things considerable.

• 1. Reasons.
• 2. Authorities.
• 3. Answers of Objections.

And for the Reasons: First, he considered in whom the default is for which the Plaintiff shall lose his Debt.

2. That the Debt remains after the body is taken in Execution.

3. If the body taken in Execution be satisfaction.

4. If the dying in Execution be a discharge.

5. The Mischiefs, if so they shall be.

And to the Objections.

First, Escape, which is the wrong and act of the Party, it is no sa∣tisfaction nor discharge, and here is the act of God, and election of the party.

2. Execution by Elegit, If Lands be extended upon that, this is no satisfaction. And so if he be delivered by a Writ of Error, and so in this case.

And for the first, the fault was in Jackeson, for he did not keep his day in the Condition, and upon this was sued, then he pleaded a false plea, and upon that Judgement was given against him, in all which actions the default was in the Defendant, and no default in the Plaintiff, for he took the Body which is the visible execution, not in satisfaction, but to satisfie, and the Defendants have not pleaded fully administred, but confesse that they have Assets, and there is more reason that the Plaintiff shall be satisfied, then the Executors keep the goods to their own use; for it is Summa Injustitia nocentem habere totum lucrum, & innocentem totum damnum.

Second reason was, that it is no satisfaction for the Defendant to dye in Prison, and agreed that if 2 Precipes are contained in one O∣riginall, there shall be but one satisfaction. But if one be taken by Capias, and remains in Execution, Capias shall be awarded against the other, and he shall remain in Prison till satisfaction be had, for execution is no satisfaction, as it is said in 29 H. 8. b. Execution 132. adjudged: See 4 Ed. 4. 38. 5 Ed. 4. 4 H. 7. 8. And Hillaries case, 33 H. 6.

And to the third, that is, that the Debt remains after the taking of the body in execution, and agreed that when execution is made of goods or lands, no Debt remains, but otherwise it is of executi∣on of the Body, as it appears by 29 H. 8. before cyted, B. Execution 132. and 41 Assis. 15. where a man was condemned in Damages in Trespass, and committed to Prison by Capias, and escaped, the Gaoler dyed, the Plaintiff prayed debt against his Executors, and could not have it, for they are not charged without specialty: and the Plaintiff alleadged that the Defendant was vagrant in the County of M. and prays Capias to the Sheriff of M. to take him, and it was

granted, for his remedy against the Sheriff was determined, and this proves also, that the Debt remains after escape, & scire facias is, licet Judicium redditum sit, tamen executio restat ad huc facienda de debito, for the body is but as a pledg, & the form of the Writ in the Register Capias ad satisfaciendum, and not in satisfaction, which proves that there is no satisfaction, but upon the payment of the money his body shall be delivered out of Prison, & this is execution with satisfaction, for there are two Executions; that is, Medius & finalis, the first is the Capias, the second Satisfaction, which is Ʋltimus Finis: And it is a good rule, quod nihil videtur factum, ubi aliquid restat faciendum; and here is aliquid faciendum, that is, Satisfaction, for in all acts there is a beginning, progression, and consummation, & Consummation in this case fails, Mors est horendum divortium, which is the act of God. And when the act of God hath delivered him which lyes in prison for his own default, it is no reason that the Plaintiff should be pre∣judiced, 43 Ed. 3. 27. A man enfeoffs the Father with Warranty, which infeoffs an estranger which enfeoffs the son: the father dyes, the son may vouch, for it is the act of God: And to the Mischiefs, nec crudelis creditor, nec delicatus debitor sunt audiendi, for they play at Bowls, and keep Hospitality in the Prison: Or if a man be ar∣rested, and makes a tumult, and is slain in indeavouring to break the Prison, and breaks his Neck, it is no reason that he by such act should defraud the Plaintiff of his Debt, the opinions against him are coupled with absurdities, as 7 H. 6. 8. Martins opinions is also imparted with absurdity, 33 H. 6. 48. The opinion of Lacon is also coupled with another absurdity: and 22 Assis. b. Execution is also coupled with absurdity, that is, if the Defendant escape, this deter∣mines the debt, and is satisfaction: and 15 Edw. 3. Quare Impedit, 174. in Writ of Right of Advowson, the Plaintiff hath Judgment, and habere facias sesinam in the life time of the Incumbent, and after his death sues Scire Facias, the first is Execution, but not with satis∣faction, and the last is satisfaction, for by this he hath the fruit of his Judgment: So 19 Ed. 3. Execution 12. a younger statute is ex∣tended, and Liberate sued, executed, and returned: And after an elder statute is extended, and after satisfaction of that, he that hath the youngest may sue Scire Facias, and have execution of the youn∣gest: So of Beasts distrained, and put into the Pound, and there dye, he which distrayned, may distray•• again, for this is no satisfa∣ction of his Rent, 14. H. 4. 4. 15 Edw. 4. 10. 11 Eliz. Dyer 280 And so Capias ad computandum▪ is not Accompt, nor Capias ad ac∣quietandum, Acquital, Register, 30. 39. 285. And it is said in Bract. lib. 7. Chap. 17. Sunt brevia Magistralia & f••rmata, the first are made by Masters of the Chancery, the others which are Originall by Cursitors, which are founded by acts of Parliament▪ and cannot be

changed without Parliament; and as Fitzherbert in his Preface to his Na. Bre. saith, that every Art and Science hath certain Rules and Foundations, to which a man ought to give faith & credence, and the Writ of Fieri facias being founded upon a Statute, and the form, that executio adhuc restat facienda: he saith that this was the Judgment of the Parliament, that the first Execution was not Satisfaction. But as the Writ is also in the Register, 245▪ That where a man is condem∣ned in Trespasse, and committed to prison, detinendum quousque, he satisfie the party, by this it appears that he is but a pledge: And Fitz. Na. Bre. 63. 65. 67. and Register, If a man be taken by Ca∣pias Excommunicatum, ad satisfaciendum & parendum Clavibus Ec∣clesiae, and is delivered by Writ, which issues improvide, another Writ of Capias shall be awarded. And to the matter of Election he agreed, that if Elegit were awarded, the party cannot have Fieri facias, nor Capias, for there is Entry made, quod Elegit sibi execu∣tionem de meditate. But when Fieri facias or Capias is awarded, no entry at all is made. But if any of them are returned executed, then he cannot resort to another Processe; and with this difference a∣grees all the Books of 15 H. 7. 15. 21 H. 7. 19. 30 Ed. 3. 24. 31 Edw. ••3. Process 52. 19 H. 6. 4. 34 H. 6. 20. 45 Edw. 3. 19. 50 Edw. 3. 4. and 5. 18 Edw. 4. 11. 20 Edw. 4. 13. 11 Eliz. Dyer, 296. And to the case of Williams and Cuttrys, cyted to be adjudged, 43 Eliz. the which he cyted as Lambs case, he said in this was ma∣ny apparent Errors in forme of pleading, so that the matter in Law cannot come to Judgment, 35 H. 6. Prisot seemed that by the law of God the Imprisonment of the body of a man was no satisfaction, for by that the Creditor may sell his Debtor and his Children for the payment of his Debts, Matth. chap. 18 vers. 24. 4 Kings 4 Chap. vers. 1. Matth. chap. 5. Luke chap. 12. And so he agreed with Foster in opinion, and concluded, that the death of the De∣fendant in the action of Debt was no satisfaction, nor determination of the Processe, nor of the election, But that the Plaintiff may have new Execution against the Executors, and by consequence that Judgment shall be given for the Plaintiff in the Scire facias, but no Judgment was given for that, there was equality of opinions, that is, Coke and Foster against Walmesley and Warburton, Danyel being dead, and for that it was adjourned.

Pasche 8. Jacobi 1610. See Hillary 7. Jacobi the beginning. Chalke against peter.

THis Case was argued this Tearme by Harris youngest Serjeant for the Defendants, and by Haughton for the Plaintiffs: And * 1.358 Serjeant Harris conceived that Sir Francis Barrington was within the Intent of the Act of 22. Ed. 4. chap. 17. For he hath grant of Trees of Inheritance, and this was all the profit which rise upon the Soyl, and for that it shall be intended of the Soyl it selfe: And to prove that, he cyted Parromor and Yardlyes Case in the Com. 542. and 543. 2. H. 8. 159. Crooke, 11. Eliz. Dyer 285. Where it is a∣greed by three Justices, that the Patentee or Grantee of Herbage in a Forrest shall have Trespasse against any which consumes and distroies the Grasse, but not the Trees, nor of the fruit of that; and the Trespasse of that shall be Quare clausum fregit, as well as i•• it were of Land: And may inclose the Forrest by such Grant: See 17. Ed. 4. 6. a. by Littleton that Vestura terrae doth not pass with∣out Livery: Also admitting that he is not owner of the Ground within the Statute, yet it seemes by the Statutes that they are: It shall be lawfull for the same Subjects, Owners, &c. And to such other persons to whom such VVood shall happen to be sold: Im∣mediatly after the VVood so cut, to fence and inclose the same Ground with sufficient Hedges able to keep out, &c. Upon which words he inferrd, that S. Francis Barrington is such a Person to whom the VVood is sold, and for that may inclose: And also he conceived, that the Statute is generall, and concernes all persons in generall: and also all Forrests and Chases whatsoever: And for that it is not like to the Cases, put in Hollands Case, 4. Coke upon the Statute of 13. Eliz. VVhich concernes all Ecclesiasticall persons in generall, that this is a generall Act, and yet concernes but one Genus in par∣ticuler: But the Statute of 1. Eliz. Is otherwise, which concernes the Bishop, which is but a species of this Genus, as it is resolved in Elmers Case, 5. of Coke: And also he conceived that it shall be re∣leeved by the Statute of 35. H. 8. And so prayed Judgement for the Defendant.

And Haughton conceived, that the words of the Statute intend * 1.359 such a person to whom VVood is sold, for one turne only: And not he which hath Inheritance of Wood: & that there is no word in the statute to exclude Commoner, and such a Vendee is not without remedy, for he is within the statute of 35. H. 8. If he pursue his re∣medy according to the statute, and so prayed Judgement for the Plaintiff.

And at another day Foster Justice argued, that the Plaintiff in * 1.360 the Replegiare shall recover, and said that the cause consists of three parts.

First, the Arbitrement.

Secondly, the assurance.

Thirdly, the private Act of Parliament, of 27. H. 8. And to those the Arbitrement and the assurance shall tye only those which are parties to it, and no others, and the Commoner is not party to that nor shall not be bound, and the private Act confirmes the assurance, saving the Right of all strangers, by which the Commoner is exemp∣ted, and also the statute is made only as confirmation of the Grant, and for that it shall not extend to any other thing, nor to other parties, but those only which are parties to the Grant, as if the Queen had made a voydable Patent, and after had made a Lease for yeares, and after by the statute of 18. Eliz. All Letters Patents made within such a time were confirmed, this makes the Letters Patents good, against the Queen, but against the Lessee: And also all the Covenants in the Grant, extend only to the Lord Rich and his Heires, and these which claim under him: And for that it shall not extend to the Commoner, and also the private Act saves the Right of all strangers, by which the Right of the Commoner was saved: And he conceived, that the Commoner shal not be excluded by the statute of 22. Ed. 4. chap. 7. which recites, that if any Subjects have any Woods growing in his own Ground, within any Forrest, Chase, &c. Shall cut the same VVood by lycense of the King or his Heires, in Forrest, Chases, &c. Or without lycense in the Forrest, Chase, &c. of any other person, or make any Sale of the same VVoods: It shall be lawfull to the same Owners of the same Ground, where∣upon the VVood so cut did grow, and to other such persons to whom the said Wood shall happen to be sold Immediatly, &c. to cut and inclose the same Ground, with sufficient hedges, able to hold out all manner of Cattell and Beasts, and to continue the same by the space of seven yeares, without suing of any other Lycense, of him or of his Heires, or of any other persons, or of any their Officers of the same Forrest, Chases, &c. By which words it ap∣peares, that the statute doth not extend to any Wood of the King, but only to the Wood of the subject lying in Forrest of the King, or of other person owner of the Forrest, or Chase: And if it be in the Kings case, and he hath lycense from the King to cut the Wood, then may he cut it without other lycense, according to the perclose of the Act: And the statute doth not give lycense to Inclose, with∣out the assent of the Commoner, but without other lycense of o∣ther Officers of the Forrest: And by this Statute the Owner of the Ground, may first cut the Wood, and then Inclose: But by the Sta∣tute

of 35. H. 8. Otherwise it is, for by this he may first inclose, and then cut within four Moneths; and that Sir Francis Barrington hath no interest in the Soyle, and that this Statute of 22. Ed. 4. is a private Statute and ought to be pleaded, for it concernes only for∣rests and Chases, and it is no other, then if it had been of al Woods in Parks, and resembled that to the statute of 1. Eliza. of the Bishop, which concerns only the Bishop, and it is resolved in Elmers case to be private; and the same Judges shal not take notice of that without pleading, and it is not like the statute of 13 Eliz. which concerns al manner of spiritual persons in general, and also that this statute is re∣pealed by the statute of 35. H. 8. which is a negative Law, and Leges posteriores priores contrarius abrogant, and it is agreed in Porters case 1. Coke, and so he concluded that Judgment should be given for the Plaintiff. Warburton Justice to the contrary, and yet he agreed that neither the Arbitrement, nor the conveyance, nor the private act, ex∣cludes * 1.361 the Commoners for these reasons, which have been urged by Foster; but he relyed only upon the statute of 22 Ed. 4. and to that he sayd that the statute gives power to the owner of Ground to inclose, and it should be frivilous for him to inclose, if the Commoner shal not be by that excluded, and he said that the persons mentioned in the statute are two.

The first is the owner of the ground, and such person he agreed Sir Francis Barrington is not.

The second is such person to whom such wood shal happen to be sold, and such Person it seems, is Sir Francis Barrington, and yet he agreed that he hath an Inheritance in the Trees, and the Owner of the soyl cannot cut them, nor dig the soyl from the Roots of the Trees, for then the Grant could not take effect, and he sayd there is no diffe∣rence between sales of Wood, though that the statute speaks of the Person to whom Wood shall be sold, and another person to whom it shal be given without consideration, and to that he resembled the sta∣tute Westminster 2. Chap. Si quis alienavit terram uxoris suae, non de∣ferratur, &c. sed expectet emptor, &c. though that the statute men∣tion buyer only, yet Donee without any consideration shal be in∣tended in it, and that the statute doth not intend within it, and that the Statute doth not intend sale Vinca vice tantum, but ra∣ther sale of Inheritance, for such Vendee may rather intend the preservation of the wood then the other: And he inferred upon these words of the statute, to inclose the same Grounds with hedges sufficient to keep out al manner of Cattel and beasts out of the same Grounds, and these words expound themselves, for they shal not be intended Deer, but Cattel which belong to Commoners, and so is the statute of West. 2. Chap. If Infant suffer Usurpation, this shal not bind him, but this shal be intended, where he hath Advowson by

discent and not by purchase, and this appears by the words of the sta∣tute, which are, Cum aliquis vis presentandi non habens presentavit ad aliquam ecclesiam, cujus presentatus sit admissus, ipse qui verus est patronus, per nullum aliud breve recuperare potuit advocationem, quam per breve de recto quod debet perminare per duellum vel per magnam assisam per quod heredes infra etatem existentes per fraudem & negli∣gentiam custodis multities ex heriditatem patiebantur, &c. By which words it appears, that there ought to be presentation which passeth by fraud and negligence of the Guardian, which the Statute reme∣dies, and that is presentation which he had by discent, and not by purchase, and in the Time of Ed. 1. Fitz. trespas 239. It is said, the Law of the Chase, that none may inclose his own Wood, without the view of the Forrester, and if the statute of 22 Ed, 4. Gives license to inclose, and that notwithstanding the Commoner may put in his Beasts, then is the statute made in vain; and it is resolved in the 30 of Ed. 3. Fitz. trespas, that if a man hunt in a Park or Chase, that this is not within the statute of VVestminster 1. Chap. 21 Ed. 1. So the statute of 22 Ed. 4 Extends to the Kings Deere, and also to other Beasts, which shal be intended ••he Cattel of the Commoners, and it is not repealed by the statute 35. H. 8. For these statutes are made for several purposes, and consist upon several grounds, and if the sta∣tute of 22 Edw. 4. be repealed, then there cannot be inclosure in forrest or Chase at al: And which is general Law, and the Justices ought to take notice of that without pleading, and that al Lawes to some respects may be intended to be special as the statute of 13 Eliz. Concerns only spiritual men, and so Charta de foresta, concerns only forrests, and the statutè of 3 H. 7. Chapt. 1. Gives appeale to the Wife for the death of her Husband, and though that al these statutes concern one thing only, and for that to some intent may be said to be special, yet they are al generall Laws, and so he concluded that Judg∣ment shal be given for the Defendant. * 1.362

VValmesley agreed with Foster in al, that is, that Sir Francis Bar∣rington hath nothing but profit, In alieno solo, and for this cause was not within the statute of 22 Ed. 4. Which might inclose, and the Common Law doth not exclude the Commoner, for the Lord Rich granted the Wood, and this Transit cum onere, to Sir Thomas Baring∣ton, and sayd, that it was in vain to dispute if the statute of 22 Ed. 4. was private Law, or if it were repealed, which makes nothing in the Case, and so he breifly concluded that Judgment shal be given for the Commoner, which is the Plaintiff.

Coke cheife Justice agreed, that Judgment shal be given for the * 1.363 Plaintiff, and did agree that the Arbitrement, the Convaiance, nor the private Act made nothing in the Case, for by these the Commoner cannot be barred of his Common; but for the statute of 22 Ed. 4.

He would first consider how the Law was before the making of that, and as to that it appears by the statute of Charta de foresta, that by the Common Law, no man which was Owner of Wood in which * 1.364 another had Common; that they could not inclose, but Assise of Common or action upon the case lyeth, as it requires, and if it be se∣veral Wood within the Kings Forrest, in which none hath interest of Common, then may he inclose by the view of the Forresters, and this hold inclosed by the space of three years, as it appears by the Pre∣amble of the Statute of 22. Ed. 4. Cum parvo fossato & bassahaia, that is a Little Ditch, and Low Hedge, for that the Kings Deare are not shut out, and this appears in the Register, in the Writ of, Ad quod damnum, Fitz. Na. Bre. 226. f. And then comes the statute of 22 Ed. 4. and gives power to inclose with such sufficient Hedges able to keep out al manner of Beasts and Cattel. And then considered between what persons the statute is made: And to that he conceived it is made between the King and his Successors of one part, and Subjects having woods growing upon their owne Grounds, and such persons unto whom such woods shal happen to be sold of the other part; and a Commoner is not named in the statute, and also the Body of the sta∣tute is not general, but there are some words in one sentence, and this is but a sentence and cannot be divided; the words are.

First, The sayd Hedges so made, may keep, &c.

Secondly, And repaire and maintain them, as often as need shal be, within seven years.

Thirdly, without suing any other License of him (that is the King) or his Heirs or other persons (that is, which have forrests or Chases) or any of their Officers, and here the sentence concludes, and there is no period before them, so that this statute being made between the King and owners of forrests and Chases of one part, and Owners of woods in their own soyl, and other persons to whom such woods should be sold other part, this shall not extend to other per∣sons, Commoners, and it is like to the case in 9 Eliz. Dyer 257. 13. A man makes a Lease for years, and covenants that the Lessee shal injoy the Tearm without eviction of the Lessor, or any claiming under him, if he be evicted by a stranger, this shal be no breaking of the Covenant, for a stranger is no party to the Deed, nor claims un∣der the Lessor, and for this his Entry shal not give Action to the Lessee, and so is the Case in 21 H. 7. between the Prior of Castle∣ton and the Dean of Saint Stephens, which was adjudged the 18 of H. 7. Pasch. Rot. 416. Though that no Judgment be reported, where it appears that the King Ed. 3. seised al the Lands of Priors aliens, in time of War, for that that they carried the Treasure of the King out of the Realme to the Kings Enemies, and so it was made by H. 4. also during the time of his Reign, and then in the second year of

the Reign of King H. 5. by a statute made between the King, and the sayd Priors aliens, al the Possessions of the sayd Priors were resu∣med into the hands of the sayd King, and adjudged in 21. H. 7. 1. before that this shal not extend to the Prior of Castleton, which had Annuities issuing out of the Possessions of the sayd Priors, for the said Prior of Castleton was not party to the sayd act of Parliament, and for that he shal not be prejudiced by that, and so it was adjudged, 25. and 26. Eliz. In the Court of VVards in the case of one Boswell, where the King made a Lease for years which was voydable, and af∣ter by another Patent granted the Inheritance, and then came the statute of 18. Eliz. to confirm al Patents made by the sayd Queen within her time, and adjudged that the sayd Act shal not make the sayd patent voyd to the Patentee, which is a stranger to the act of the Parliament, but only against the Queen, her Heirs and succes∣sors, for by the statute it is made only against one person only, and shal not be good against another, though there be no saving of such person in the sayd Act. And also he conceived that the statute of 22 Ed. 4. Doth not extend to any woods in forrest, in which another hath Common, for it doth not extend only to such woods which a common person hath in the Kings forrest, or common person, and that it may be inclosed for the space of three years after the cutting of the wood in this, before the making of the sayd statute, and this was no wood in which an Estranger had Common, as it appears by the Preamble of the sayd statute; and then after in the sayd statute it is sayd, such woods may be inclosed.

And also he conceived where the statute sayth, that they may in∣close the same Grounds, with such sufficient hedges, able to keep out all manner of Beasts and Cattell out of the same Grounds, but this refers to the quality of the hedge, for before it ought to be a small Ditch, and by this statute it ought to be with such hedg which shall be able, &c. And it shall not be referred to the manner of the Cattell: But for the difference between Beasts of Forrest, Beasts of Chase, and Beasts of Warrain, see the Register, fol. 96. 43 Ed. 3. 13. 12. H. 8. 12. b. Hollinsheads Cronicle, fol. 20. b. 32. And he con∣ceived that Sir Francis Barrington is such a Vendee of Wood, that is within the statute, though that he be Vendee of Inheritance, and hath a greater Estate then Ʋnica vice, but for that, that he concei∣ved that it was not within the statute for other reasons before cyted, he would not dispute it: But he conceived if this had been the question of the Case, that this was within the statute, and also he conceived that this was a generall statute, of which the Judges shall take notice without pleading of this; And this reason was, for that that the King was party to it, and this which concernes the King, being the head, concernes all the Body and Common Wealth,

and so it was adjudged in the Chancery in the case of Serjeant Heale, that the statute by which the Prince is created Prince of VVales was a general statute, and for that see the Lord Barkleyes case in the Com∣mentaries: Also he conceived, that the said statute of 22 of Ed. 4. was repealed by 35. H. 8. for this was in the Negative, that none shal cut any wood, but only in such manner as is prescribed by the said statute, and for that shal be a repeale of the first, and that by the first Branch of the sayd statute it appeares, that if such giving of Wood in his own Soyl within any forrest, he cut to his own use, he cannot inclose, and by that Branch Commoner is not excluded, but by the second Branch it is provided, that he may inclose the fourth part of his Wood, and cut that in such manner as is appointed by the said statute, and then he shal loose his own Common, in the three other parts, and so he concluded that Judgment ought to be given for the Plaintiff, which is the Commoner, and Judgment was entred accordingly.

Pasch. 1610. 8. Jacobi, in the Common Bench. Cesar against Bull.

THomas Cesar Plaintiff in Assise against Emanuel Bull, for the * 1.365 Office of Clock-Keeper to the Prince, & this he claims by grant of the King during his own Life, with the fee of two shillings a day for the exercising of it, and three pound yearly for Livery, and the pa∣tent purports only the Grant of the Office, and not words of creation of the Office, as Constituimus officium, &c. And the Plaintiff could prove that it was an ancient Office, and for that was non-suited in the Assise, though that the Tenant had made default be∣fore.

Pasch. 1610. 8. Jacobi, In the Common Bench. Heyden against Smith and others.

THE Plaintiff counts in Trespasse against these Defendants, and * 1.366 these Defendants justifie as Servants to Sir John Leventhorp, who was seised of a free-hold of Land, in which the Tree, for which the action was brought, was cut, and so demands Judgment if action, the Plaintiff replyes, that the place where, &c. was parcel of a house and twenty Acres of Land, which time out of mind, &c. have been demised and demisable by Copy of Court Roll, which was par∣cel of the Mannor of A. of which the sayd Sir John Leventhorp was seised in his Demesne as of see, and by Copy at a Court held such a

day and year granted the said Messuage and twenty acres of Land, whereof, &c. To the Plaintiff and his Heirs, according to the cu∣stome of the said Mannor, and prescribes that within the sayd mannor was a Custome that every Copy-holder may cut the boughs of all the Pollingers and Husbands growing upon his Copy-hold for fire to be burnt upon his Tenement, and also prescribed for House-boot, Plow-boot, and Cart-boote, and averred that he had nourished the growing of the Trees upon his sayd Copy-hold, and that the sayd Messuage and buildings, upon that were ruinous, and the Trees growing upon that twenty Acres of Land were not sufficient for the repairing of it, and so demanded Judgment if he should be debar∣red of his Action, upon which these Defendants demurred in Law, and it was adjudged by Coke, Warburton, and Foster, Daniel being absent, that the Action was wel maintainable; against Walmesley who objected, that if a Copy-holder may cut Trees, as it was here pleaded at his pleasure, without pleading first, that his House was in decay and ruinous, and that then he cut trees for the repaire of that, that then he hath an Estate at wil according to the Custome, and not at the Wil of the Lord, and he sayd that he could not cut a tree, and imploy that for Reparations twenty years: But the cause of this cutting, which is the Ruines, ought to precede the cutting; and he sayd that such Copy-holder hath no property in the Trees, by such prescription, no more then he which hath Common of Estovers, or tenant at wil, and if he cut a tree without special custome, he shal be punished in trespasse, as Littleton saith of Tenant at Wil, and also he ought to plead how the House was ruinous, and what place and what part of that was in decay, and then that this so being in decay, that he cut trees for the repaires of that, and also that the Prescription to cut off the boughs, Pro ligno combustibili, is not wel pleaded, for by that he may cut all the timber and others also, and he who prescribes to hate Estovers, ought to prescribe to have reasonable Estovers for * 1.367 Fuell, and the averment that all the trees are not sufficient for reparations is surplusage, and so hee conceived that the Action for these causes is not maintainable, that is, that it is not main∣tainable, without speciall custome, and that the custome as it is pleaded here is voyd, but it was answered and resolved, by Coke and the other Justices before cited, that the Action was wel maintainable at the Common Law without such Custome, and that the pleading of the custome was surplusage, for it was agreed that the Copy-holder hath special property, and the Lord a general property: and it was sayd by Coke and Foster, that the Lord may as wel sub∣vert the Houses as cut down the Trees, for without them the Copy-holder hath no means to repaire that, and for that if the Lord cut the Trees, the Copy-holder may take them for repaire of his house,

for the Copy-holder hath as large an Estate in the trees, as in his Copy-hold Land, and it was resolved that the Prescription, was very wel pleaded, insomuch that the Copy-holder pleads that as a cu∣stome, and also that prescription, Pro ligno combustibili is Good, and this is an apt word by which he may claim it, and that boote in any sense is maintainable, and in some sense is Recompence or Reparation, and it is House-boote, Hedge-boote, Fire-boote, Plow-Boote, &c. Is in it self a Saxon word, and the Lord Coke sayd, that it was ad∣judged * 1.368 Michaelmas 25. and 26. Eliz. in Doylyes Case, Where it was a custome that the Copy-holder might cut Merisme for to re∣paire, that if the Lord carry it away, that an Action of Trespass lies for the Tenant, and Pasch. 36. Eliz. Taylers Case: A man was Tenant by copy of Court Role of wood, and the soyle was excep∣ted to the Lord, and yet the Copy-holder maintained an Action of trespass against his Lord for cutting of wood, And Trinity 4. Eliz. Stebbings Case, Copy-holder prescribes to have the Loppings of all the trees growing upon the Copy-hold, and the Lord cut a tree him∣selfe, and the Copy-holder brought an action upon his case, and ad∣judged that it lyeth wel, and 9 H, 4. Fitz. Waste 59. by Hull, that Tenant by copy of Court Roll cannot make waste, nor cut woods to fel, but for his Benefit in repairing of his House, and 2 Henr. 4. 12. a. It seemes that if a stranger cut a Tree, the Lord may have an Action of trespass, and the Copy-holder another, and eve∣ry one of these shal recover Damages according to his interest, that is, the Lord by his general property, and the Copy-holder for his special property; & it appears by Clark and Pennyfathers case 4 Coke 23. b. That the Heir of the Copy-holder, may have an Action of Trespass, before admission, by which it appears that the heir doth not take his Estate of the Lord but of his Father: and also agree, that if such an Heire dye before Admission, the Heir may enter, and take the profits, and so it was adjudged that the Action of Trespass brought by the Copy-holder against his Lord was well maintainable.

Pasche 1610. 8. Jacobi, In the Common Bench. Earle of Rutlands Case.

EARLE of Rutland Plaintiff in an Action of trespasse upon the Case against Spencer and Woodward Defendants, the case was, The last Queen Elizabeth Anno 42. Eliz. by her Letters Patents un∣der the great seale of England, granted to the Earle of Rutland the Office of the custody of the Porter-ship of the Castle of Nottingham, Habendum to the sayd Earl to be executed by him or his Deputy du∣ring his natural▪ Life, and further the same Queen, by the same

Letters Patents, granted to the sayd Earl, the Office of Steward¦ship of diverse Mannors, Habendum & exercendum, cum omnibus fe∣odis, vadis & proficuijs eidem Officio pertinentibus, to the sayd Earl, from the time that he should be of ful age, during his Life, and further the sayd Queen granted to the sayd Earle the Office of Kee∣per-ship of divers Parks and forrests, Habendum & exercendum Officium predictum cum omnibus & singulis suis proficuijs, vadis, feodis, & emolumentis, quibuscunque, eidem Officio pertinentibus, aut ratione ejusdem percipiendis per se vel sufficiendem deputatum sunm, &c. And after in the sayd Patent it is recyted, that the sayd Earl was of ful age An & 40 Eliz. Ʋt informamu, r mandamus quod omnes & singuli Officiarij, & alij quicunque sint intendentes & obedientes dicto Commiti, & deputatis suis, in exerendo officium predictum, and if this patent were good or not was the question.

And Hutton serjeant conceived, that the Patent was good, and that the sayd Earl may exercise the sayd Office of Stewardship, for which this Action was brought, by Deputy by force of the sayd Grant.

The first question, which hee moved was, if Steward of a Court may execise his Office by Deputy, without speciall Grant of that.

Secondly, if there be words within the Patent, to enable him to execute that by Deputy.

Thirdly, if upon this disturbance, action upon the case, Quare vi & armis, lies.

And to the first, he conceived, that the Patentee may exercise the Office by Deputy without special words of Deputation in the Pa∣tent, for he conceived that it is not meerly an Office of trust, for he hath not the keeping of any Records, for the Courts of which he was steward were not Courts of Record, and yet that all the Books are, that ancient grants of Office of stewardship, contain that the Patentee may exrecise, Per se, vel per sufficientem deputatum suum, though they are not of Courts in which the steward is Judge, but the suitors, but if a Grant be of such an Office of Inheritance, then there needs words of Deputatum, for here it is apparent, that there was not special trust reposed in the Patentee: And he also agreed, that if it be not an Office of profit, the Grantor may enter and out the Patentee, but the fee shal remain, as it appears by the 31 H. 8. Brookes Novell Case and 18 Ed, 4. And it was not the intent of the Queen, that the Earl of Rutland should execute the Office in person, for that should be an undervaluing of him, the which he sayd was proved by Sir Robert VVrothes Case in the Commentaries, where an Officer to the Prince was discharged of his attendance, by

alteration of quality of the Prince, and making of him King, and yet the Fee remained.

And to the second it seems, that the patent hath expresse words of Deputation.

And the third Grant, which hath a reference to the Grant prece∣dent, and al the words being put together make a perfect Grant, and this such construction hath been alwaies made of Grants of the King, as it appears by Sir John Mullyns Case, 6 Coke 56. And Justice VVind∣hams case 5 Coke 7. a. So if the King makes a Lease of a Mannor, ex∣cept a Grove next to the Mannor, this shal be intended next to the Mannor House, for otherwise it shal be out of the Mannor, and so the exeption voyde, but Coke and Foster doubted of that.

And to the third point, that the Action was maintainable, Vi & armis, for when the Deputy of the Earl, of Rutland proclaimed the Court as Deputy of the Earle of Rutland, and these Defendants proclaimed that as stewards of the Earl of Shrewsbury, and after ad∣journed that; and after held all the Courts and received the profits, it seemed to him, that for this outing and disturbance which is dis∣seisin, action upon the case lies, Quare vi & armis, as wel as in the Book of Entries 15. two men had Warrens adjoyning, and one of them puts Cats, and other vermine into the Warren of the other to destroy it, and the Action of trespasse, Vi et armis lyes, and so for menace action of trespas, Vi & armis lies, as it appears by 3 H. 4. and this disturbance is sufficient to maintain an Assise, and upon that he concluded that the Plaintiff in the Action ought to recover, and to have Judgment.

And Harris the younger Serjeant argued, that the Grant is not good, for default of certainty, as to this Grant of Stewarship, for the Grant is of the Office of Stewardship of the Mannor of Mans∣feild, and doth not shew where the Mannor is, nor in what Coun∣ty; and it appears, and is put for a Rule by Hussey cheife Justice, in the 25. of H. 7. 60. b. That when a man wil have advantage of Letters Patents of the King, it behooveth that they extend certain∣ly to things of which he wil have advantage, see 2. R. 3. 7. a. By Hussey 44. Ed. 3. 17. 5 Ed. 4. Garters Case, 17 Ed. 3. 15. and Dod∣dingtons Case, which is Hill, and Pext, 2 Coke 1. 31. b. If the Town be misnamed it is good, if there be another certainty, but if it be not named at all, otherwise it is. And to the Point moved by Hutton, he concived that this Office of Stewardship could not be exercised by a Deputy, as it appears by Littleton in his Chapter of E∣states upon condition, where he saith, that there are Estates upon condition in Law, of which Stewardship is one, fol. 89. Sect. 379. That cannot make Deputy without speciall Grants, and with this

agreed Sir Henry Nevills Case Com. 379. and Long 5. Ed. 4. 26. b. and by 21 E. 4. 20. and Sir Henry Nevills Case before, he could not grant over his office, but if he do not attend to the Execution of that, it is forfeiture, 11 Ed. 4. so if he wants skill 29 H. 6. 42. Per totam curiam, He conceived that the Law doth not make any difference, between the person of an Earl and another, to the executing of this Office, and that the words of the Patent do not contain words of de∣putation, for in the Grant the words are, Habendum Officium predictum, breifly written, Cum omnibus vadis & feodis eidem Officio, sue ratione ejusdem, &c. The which last words are expository of the first, that is, that it shal be intended that the Office is contained in the last Grant, and shal not be referred to a Grant precedent, in which the Stewardship is contained, and also he conceived that this Action upon the case doth not ly, Quare vi & armis, as it appears by Fitzherberts Naturabrevium 86. H. Where it is sayd, that in trespass upon the case, these words, Vi & armis are contained in the Writ, shal be sufficient cause to abate the Writ, see 11 Assise 25. He which councels to make Disseisin, shal not be a Disseisor with force, for he ought to do some manual Act, either to the person or to the possession, see 41 Ed. 4. 24. a. and 44. Ed. 3. 20. b. And so he con∣cluded that this Action is not maintainable, and that Judgment ought to be given for the Defendant for the causes aforesayd.

This Case was argued again by Nicholls Serjeant for the Plaintiff, * 1.369 and by Dodridge the Kings Serjeant for the Defendants, to the same intent, and it was urged by Dodridge, that the Patent containes three several expresse Grants, which are distinct Grants in themselves, as there be three distinct severall Patents, though they have but one Parchment and one Seale, and if the King grant the Office of parkship of two parks by one self same Grant, if the Patentee be disseised of them, he may have several Assises, though that it be but one self-same grant. And he agreed that the words, officium predi∣ctum, in the 3. grant shall be intended officium predictum, and so sup∣ply the defect in the second grant, if it were not limitation of the e∣state in the second grant, but for that, that the second grant was per∣fect in it self, there need not of necessity any such construction, and that these words shall be referred to the last words, appeares by the last words of the habendum, that is, cum vadis & feodis, eidem officio, aut ratione ejusdem officij, and these Relatives are exposition accord∣ingly. And to the objection of the clause of Assistance in the end of the Patent: he answered that if the grant were ill and void in it self, this Clause doth not supply that. For this is but notification to the Officers of the Queen, that they should be attendant to the said Earl. For though that the Intent of the Queen was, that the Earl of hutland should execute this office by Deputy, yet this intent shall

not make the grant good, for though that the Intent of a common person be apparent within the Deed, yet this intent shall not make a voyd grant good, 19 H. 6. 20 H. 6. 22 H. 6. 15. Grant to 2. Et heredibus, with warranty to them and to their Heirs, this clause of warranty, though it were the intent of the parties apparent, yet it was not sufficient to make the grant which was voyd good, and so it is in 9 H. 6. 35. Abbot by his deed in the first person grants a Te∣nement, and the Grantee in the third person, renunciavit totum Commune quod habuit in uno tenemento: and though that in this Grant the Intent of the parties is apparent, yet this Intent shall not make the Grant which is void in it self to be good. So if a man makes a Lease for life to the Husband and Wife, and after grants the re∣version of the Land that the Husband held for tearm of life, that grant of the Reversion is void, though that the Intent was apparent, 13▪ Edw. 3. Grants 63. And so in Patent of the King, grant to a man, and heredebus masculis suis, is void, though that the Intent also is apparent, that he should have an estate tayle, 18 H. 8. b. Estates 84 But admitting that the Grant may be supplyed by the last words, that is, that in the last Grant the words are officia predicta, and in the clause of Assistance, yet these words may be supplyed, for there are two other Grants, in which there is expresse mention that the Pa∣tentee may exercise it by Deputy: and so the words shall have full In∣terpretation, Reddendo singula singulis. And hee conceived that the Writ shall abate for that, that it contains Vi & armis. And also the Declaration; for the Jury have not found any disturbance at all. And he agreed that in some cases, Trespasse Vi & armis well lyes, as it is Fitzh. Na. Bre. 92. 86. as where it is actuall taking, 45 Ed. 3. 30. 44 Edw. 3. 20. where trespasse Vi & armis is maintainable a∣gainst a Miller for taking of Toll against the Custome, for here is a∣ctuall taking, and 8 R. 2. 7. Hosteler 7. In an action of Trespasse, Vi & armis against an Host, for that, that certain evill persons have ta∣ken the money of the Plaintiff, and good. But where there is not a∣ny actuall taking, there the Writ ought not to containe Vi & armis, for, for not scowring of a Ditch, or stopping of Water, as it is 43 Ed. 3. 17. But for casting of Dung into a River, action of Trespasse Vi & armis lyes, 12 H. 4. But for burning of a house it doth not lye Vi & armis, 48 Ed. 3. 25. And so for turning of water-course, 3 H. 4. 5. But in this case there is but disturbance with a word, and comman∣dement to hold a Court, and no Court held, nor no Proclamation made, and so no disturbance at all; 16 Edw. 4. 11. one hath the of∣fice of a Parkership, and another man was bound, that he should not disturbe. And in debt upon the Obligation he pleaded that the Ob∣ligor hath threatned to disturb him, and adjudged that this is no breaking of the Condition, for there is no disturbance: and in 2 Ed.

3. 25. and 40. Quo minus by Jeffery Scorlage, where the King grants to the Mayor of Southampton the Customes of the same Towne, and in quo minus for taking of them, it was adjudged that words are no assault, but there ought to be an act done. But in this Case is no∣thing found but words, and no act done, but it is found that after the Defendants held the Courts. But that doth not appear if it were a∣gainst the will of the Earl of Rutland or not, and so concludes that the action is not mayntainable. And this case was argued again in Trinity Tearm next ensuing by the Justices, Danyel being dead, but I was not present at the argument of Foster and Warburton Justi∣ces: but I heard the arguments of Walmsley Justice, and Coke chiefe Justice.

And first Walmesley conceived that the Grant was good, and that * 1.370 the Earl of Rutland by this Grant might exercise his Office by Depu∣ty, and this only in respect of the quality of his person, for the Pa∣tentee is a Noble man, which hath been employed as an Embassador of the King into other Realms, and this Grant of this Office being amongst others, varies from them; for this wants the word, exer∣cendum, which is contained in the others: and also the office of a Steward is too base for an Earl to execute, for the Steward is but as a Clark, and not a Judge, for he shall not be named in a Writ of false Judgment, nor shall hold plea of any actions but under 40. s. & for that it is not fit nor convenient that an Earl should exercise such a bas Office in Person. For if Recovery here be pleaded, it shall be try∣ed by the Country, 1 Edw. 3. And the Steward shall not give Judg∣ment, but the Suitors, and no tryall shal be by Verdict, but by wa∣ging Law, and the fee of the Stewardis but a 1 d. for every Plaint. And for that it was not the Intent of the Queen that the Earl should exercise such a base office in person, and her Intent is apparent, for that, that the word Exercise is not contained in the Patent. And the Intent of the Queen is to be considered, for the other Offices are fit to be executed by the Earl: for the exercising of them is but a matter of pleasure, as in hunting in the Forrests and Parks of the Queen: and for that if these Grants have not contained words of deputation, the Earl ought to exercise them in person, according to Littleton. And Noble men are not to be used as common people, for they are not to be Impannelled of a Jury, and Capias doth not lye against him, by which he cannot be outlawed, and for that he shall not be bound to sit in such a base Court, as this base Court is: And all this matter is wel declared and expounded in the last clause of the Patent, where the words are, Et ulterius volumus & mandamus quod omnes, &c. Sint intendentes & auxiliantes, &c. Where the words volumus in Patents of the King, to amount to as much as concedimus, or a Co∣venant, which is all one with a Grant, as in 32 H. 6. The King relea∣ses

all his right in an Advowson, Nolentes, that the Patentee shall be grieved or disturbed, and adjudged that this shall amount to a Grant, and so the word Volumus, in the principall case: and also he conceived that the action is well maintainable, Vi & armis, as Qua∣re Impedit, for disturbance by word, or presentment by word. And it is also found that the Defendants did take all the profits, and that the Deputy of the Plaintiff came to the usual place where the Court was kept, and that could not be intended to be out of the Mannor. And so for these reasons he concluded that Judgement should be gi∣ven for the Plaintiff.

And Coke cheife Justice argued to the same intent, that is, that the * 1.371 Plaintiff ought to have Judgment. And first he conceived, that the Patent is good, notwithstanding the uncertainty, that the Mannors are not named in what Counties they are, either in England, France, or Ireland, for the Mannor is named very certain, by which it may be granted though it be in the Kings case, as it appears by 32 H. 6. 20. where the King grants all Mannors, Messuages, &c. which were par∣cell of the possessions of I. S. attaint, and good. And such grant was made to Charles Brandon Duke of Suffolke, and adjudged good, though that the person of a man is more incertain then the Mannor, & yet, Id certum est quod certum reddi potest. And 39 Ed. 3. 1. in the Abbot of Reddings case, where a grant was made to the Abbot and his Successors, that the Prior and Covent shall take the profits in time of vacation, Fitz. Na. Bre. 33. b. And 23 Ed. 3. 20. The King grants to the Queen the Barrony, and all Mannors, &c. till Iohn of Gaunt be able to govern himselfe, and that shall be intended till the Law intends him able to govern himself, and Mannor is very certain, of which a view shall be awarded. The second exception which was taken to the grant was, for that, that it was to take effect at the ful age of the Earl. And after it is recyted in the Patent, that he was of full age before the making of the Patent, and so by consequence the Patent is to take effect from the time that it was past: And to that he said, that it shall be intended to the profits of the Office only, for it appeares by the Patent that the Queene had granted it to another during his Minority: That is, the office.

And to the third mattter, That is, if hee cannot make a Deputy, then he hath forfeited the said Office, by the not using of it. And to that he said, it appeares by Waltons case, 10 Eliz. Dyer, fol. 270. That if a man grants a Fee, pro concilio impendendo, or keeping of Courts, the Fee shall not be forfeited without speciall request to the * 1.372 Patentee to give Councell, or to hold his Courts, for hee doth not know if the Grantor will have his Courts held or not: and so it is 39 H. 6. 22. Brewens case, where it is also agreed, that it shall be no for∣feiture of an office without speciall request to hold the Courts, or

to give Councell: But in the case of the Queen otherwise it is, for she ought not to make demand in case of Rent nor Condition, though that it be within the Statute of 32. H. 8. And yet it was argued in Sir Thomas Hennages case, that if the King make a Lease for years upon condition to cease; this shall cease without office upon the breaking of the Condition, but a Lease for life shall not cease with∣out office, though that the Condition be broken: And so if the King grants an Office for life, this shall not be avoided without Of∣fice: And he doubted the case of the Lease for yeares: And also he agreed, that the Grantee of a Stewardship, cannot make Deputy to exercise his Office, without speciall words in the Patent: But if the Office be granted to him and his Heires, or to him and his as∣signes, it is suf••••cient without other words to make a Deputy: And also he sayd that the word Steward, is the name of an Office, and is derived of Steed and Ward, which are Saxon words, and intend the Keeper of the place, which the party himselfe ought to hold; and it appeares by Cambdem and Lambert: And so the word Senescalls also signify, for this is but a Custos sive officiarius loci: See Fleta liber 2. chap. 72. Senescallum providebit Dominus circum∣spectum fidelem, Modestum & pacificum qui in consuitudinibus, &c. & Jura Domini sui teneri, &c. Quique balivos suos instruere potest, Cujus officium est curia maneriorum, &c. And a Deputy is a person authorised by the Officer in the name and right of the Officer, and for all that he doth the Officer shall answer, for he is but as a shad∣dow of the Officer: But assignee is in his own right, and he shall answer for himselfe, and forfeiture by assignee of Tenant for life, shall not be forfeiture of the reversion, 39. H. 6. And he agreed that a Marshall, Steward, Constable, Bayliff, and such like cannot make Deputies, without speciall wordes in the Grant, as it appeares, 39. H. 6. 11. Ed. 3. 10. Ed. 4. 14. 17. and 7. 21. Ed. 4. Nevills case in the Com. and Littleton: And to the exceptions which have been taken to the Writ and Count, he saith that an Action of Trespasse, which is founded upon the case, doth not lye, Vi et armis, where the point and cause is Action, is supposed to be made Vi et armis, and for that he takes difference between. Causa causans, and Causa causata, for where the matter which is supposed to be done Vi & armis, is not the point of the Action: But the cause of the Action there lies very well Vi & armis: But wherein the point of Action is supposed to be made Vi & armis, there the Writ shall abate: As if a man brings an Action of Trespasse for casting dung into a River, * 1.373 by which his Land is drowned, in this case an Action of Trespasse upon the case, Vi & armis lyeth very well, for here the casting in of the Dung, is but Causa causans, And the drowning of the Land is Causa causata, 8. R. 2. And so disturbance to hold a Leet, by which

he hath lost his offerings 19. R. 2. 52. And the Earle hath election to have Trespasse or Assise, though it be not Manurable: As if a man prescribe to have seven pence of every Brewer which sells strong Beer, for disturbance to have the seven pence, Action upon the case lyes, for this disturbance is Dissesin 15. Ed. 4. 8. 14. Ed. 3. 4. 1. Ed. 5. 5. 19. R. 2. Action upon the case 51. And to the objection which hath been made, that disturbance found by the Jury, is not the same disturbance, which is mentioned in the Count, for in the Count the disturbance is supposed to be made Vi & Armis, but the Jury do not find any distubance to be made Vi & Armis: But this notwithstanding, it seemes that the Count is good: As if a Sheriff enters a Franchise and executes a Writ, this is disturbance, and Acti∣on upon the case lies: And so in Quare Impedit: And also he sayd, that the Earle cannot make a Deputy but by writing, as it is re∣solved 28. H. 8. Br. deputy 17. Where it is sayd that Deputation of an Office which lyes in Grant, ought to be made by Deed and not by Word: But here the Jury have found, that the Earle hath made his Deputy, this shall be intended in lawfull manner, and cannot be but by writing: And also he agreed that the Habendum mentioned in the third Grant, shall extend only to this Grant, which is his pro∣per Grant, that the Office of the Habendum: And it appeares by Wrotsleys and Adams case, Comment. 17. That the Office of Haben∣dum, is to make certain▪ the Estate and not the thing granted, for this is the Office of the Premisses of the Deed: And if the Haben∣dum in the third Grant, had had reference to the second Grant, this would make the Grant void: And in Grants of the King other construction shall be made, as it was adjudged in the Court of Wards, Michaelmasse 28. and 29, Eliz. between Brunkar Plaintiff and Robotham Defendant, where the case was, the King Hen. the 8. had two Mannors, whereof diverse Lands of one Mannor extended the other Mannor, and then the King granted one Mannor and all his Lands in the same Mannor, Nec non omnies & singulas Terras, &c. In the same Town, and adjudged that the Lands which were parcell of the other Mannor, which was not granted, passe by this Grant, though that they are in the other Mannor, in the same Town, and he denyed that the words Precipientes & volentes shall be taken as a Grant, for they are not spoken to the Patentee, but to other Officers, which are strangers to the Grant: But if the thing granted had been a Chattell, that a Covenant might enure as a Grant, and 10. Eliz. Dyer 270. 22. The King Phillip and Queen Mary, granted for them and their Heires and Successors, * 1.374 to A. B. That he and his Factors and Assignes might Tavern, and keep a Tavern, &c. Commanding all Mayors and Sheriffs, &c. and other Officers and Subjects and their Heires and Successors, to

permit and suffer the said A. B. during his life to hold and use a Tavern, and to sell Wine without Impeachment, and it seemes that the Grant is void, for that that there is not any time limited, for how long it shall indure, and the mandate in the last clause shall not make any limitation,, for by the death of the Prince this alto∣gether ceaseth, for Omne mandatum morte mandantis expirat: And for that all Proclamations made in time of the Raign of Queen E∣liz. cease and determine by her death: And to the person of the Earle, he said that it was a Maxime, that Honour and Order shall be observed, and that was a common saying of the said Queen, and for that it was not her intention, that this Maxime should be bro∣ken, and that the said Earle should exercise the said Office in person, but she intended the said Earle should overlook the said Mannor, and place here a sufficient able man to exercise the said Office, be∣cause he should answer, for the misdemeanour of such a Deputy is the forfeyture of the Office, and he saith that the Dignity of an Earle, was the most high Dignity in this Realm, that any Subject doth possesse, till the 11. Ed. 3 The black Prince was the 1 Duke, and Aubry de Vere the 1 Marquess in the 11. R. 2. and Beamount the first vicount in the time of H. 6. And none of these Dignyties are above an Earle in degree, but only in precedency, for Bracton lib. 1. chap. 8. saith, Quod Comites dicunter a socitate, quia Comitantur Regem: And in ancient time none were made Earles but only those which were of the blood Royall, and this is the reason that they are cal∣led Consanguinij Regis, and also they may be called Consules a Con∣sulendo, Tales enim Regis sibi associunt ad consulendum & regendum populum Dei: And at their creation the King gives to them a Robe and Cap, which signifies Councell, and Corronet, which signifies the greatnesse of his Blood and Honour, and also sword, Ʋt sit in ntrumque tempus, as well ready for War as peace: And for that it should be unfit, that one of such Honour, State, and Dignity; should be imployed in holding of Court Barons, and there sit to en∣ter Plaints, and have a peny for every Plaint for his paines, and to make Copies and such like base imployments which are Vividae ra∣tiones, which was not the intent of the Queen, that he should exercise the said Office in person, and the Law requires convenien∣ces in all Grants, as in 12. and 13. H. 8.

One licensed a Duke to come and hunt in his park, and the Duke came with his Servants and many others of his Retinue, and hunted there, and it was adjudged that the Grant was sufficient, to war∣rant his hunting in this manner, in respect of the conveniency, for it is not fit and convenient that the Duke should go alone, and 21. Ed. 3. 48. The Bishop of Carlile sued the Executors of his Predeces∣sor

the Ornaments of the Chappel of the sayd Bishoprick: and then recovered, and though that the sayd Chappel was in the pri∣vate House of the sayd Bishop,, yet it was thought fitting, that such Chappel should be adorned with convenient Ornaments, and that these Ornaments should go in succession to the Successors, and not to the Executors, and if conveniency be so required in all these cases, then by the like Reason such inconveniency shall not be admitted, that the Earl should be Clark to Suitors as every Steward is. And for that he conceived that the Grant is good; And that the sayd Earl may exercise this Office by a Deputy, as well as if a Common person grant an Office of Fostership to the King, he may exercise that by any party, or grant it over, though therebe no words of de∣putation in the Grant, and this in respect of the quality of his per∣son, and in many other cases an Earle or another Noble man shall be priviledged, as in 3 H. 6. A Noble man shal not be examined up∣on his Oath in account, And 48 Ed. 3. 30. He shal not be sworn up∣on Inquests, which is to serve God and his Country Register 179. And if a common person be in debt to me a hundred pound, I may have a Capias and arrest his person for this Debt, but if the King create him Baron or Earl, then his person is so privileged, that that cannot be attached for this Debt, and this is without wrong to me▪ as it appears by the Countesse of Rutlands case 6. Coke; And if a Baron be returned of a Jury, and if Issue be taken, if he be a Baron or not, this shal be tryed by Record whether he be a Baron or not, 35 H. 6. 46. 22 Assise 24. 48 Ed. 3. 8. Register 47. And in case that one common person hath any Office, which he cannot exercise by a Deputy, yet if he be imployed in the Kings service, as if he be made Ambassador out of the Realm, or other such imployment, he may during his absence make a Deputy, and this shal not be forfei∣ture of his Office, and an Earl in ancient time was not only a Coun∣cellour of the King, but by his Degree was Prefectus sive prepositus commitatus, as it appears by Cambden 106, 107. Comes prefectus Satrapas, which is Prepositus comitatus, and was in place of the Sherif at this day, and when that he was Sherif, though that he had the custody of the county committed unto him, which was a great trust, yet then by the Common Law, he might make an under She∣rif which was but a Deputy, the like Holinsheads Chronicle 463. Amongst the customes of the Exchequer, he called the under Sheriff Senescallus, which agreed with the Definition before, for he held the place of Sherif himself, and by the statute of Westminster 8. chapt. 39. It is sayd that Vice comes est viccarius commitatus, and if a Barony discend upon the Sheriff, yet he shall continue Sheriff, 13. Eliz▪ Dyer and Britton 43. If a Rybaud strike a Baron or a Knight, he shall loose his Land: And Tenant by Knights service, may execute it

by Deputy. 7. Ed. 3. Littleton: And if it be so in the case of a She∣riff, which hath the County committed to him, that he may make a Deputy by the Common Law, upon that he inferred, that the Ste∣ward which hath but the Mannors of the King, committed to him, that he may make a Deputy: And also he said that the words in the last clause, that is, (Volentes & precipentes) that the Officers and the Subjects should be attendant, expoundes and declares the in∣tent of the Queen, for the words are; Omnibus premisses, and the Grant of the Office of the Stewardship is one of the premisses, and so he concluded upon these reasons, that Judgement shall be given for the Plaintiff, and that the Grant was good, and the Action wel maintainable: And o•• this opinion were Warburton and Foster, Justi∣ces: And Judgement was given accordingly; this Trinity Tearm 8. Jacobi.

And Coke cheife Justice remembred a Report, made by him and Popham cheife Justice of England, upon reference made to them, that this Patent was good, and that the Earle of Rutland, might exercise this Office by Deputation, and he conceived, that there were other words in the Patent which were found by the Jury, that the said Earle should have the said Office, Cum omnibus Juribus & Jurisdictionibus, &c. as full. &c. as any other Patent hath been had, and withall the Appurtenances, and it seemed that a former Paten∣tee had power by expresse words to execute that by a Deputy, and he conceived though these words Adeo plene &c, do not inlarge the Estate, yet this inlargeth the Jurisdiction of the Officer, as in 43. Ed. 3. 22. Grant is made by the King of a Mannor, to which an advowson is appendant, Adeo plene, & tam amplis modo & for∣ma, &c. And these words past the advowson without naming that, and he said it was adjudged Hillary 40. Eliz. in Ameridithes case, where the case was, the Queen granted a Mannor, Adeo plene & intigre & in tam amplis modo & forma, as the Countesse of Shrewshury or any other had the same Manno, r and Queen Ka∣thrin had the same Mannor and diverse liberties with it of great va∣lue, during her life, and adjudged that these liberties should passe also by this Patent by these words, and so in the principall case, if the former Patent had been found also by the Jury, and so was the opinion of Popham and him, and was certified accordingly.

FINIS.

Notes

• * 1.1

  Prohibition up∣on the statute of 23. H. 8. Chap. 9.
• * 1.2

  Prohibition to the High Com∣missioners▪
• * 1.3

  High Commis∣sion.
• * 1.4

  Prohibition.
• * 1.5

  Joynt prohibi∣tions and seve∣rall Counts.
• * 1.6

  Prohibition up∣on the statute of Symony, upon the stat. of 31. Eliz.
• * 1.7

  Prohibition up∣on the Statute of, 32 H. 8. for the dissolu∣tion of the Ho∣spitall of Saint Johns of Je∣rusalem.
• * 1.8

  For not setting forth Tythes.
• * 1.9

  Husband sue only.
• * 1.10

  Prohibition to the Cort of Requests.
• * 1.11

  Against For∣reiner for Or∣naments for the Church and for Sextons wages.
• * 1.12

  Admiralty.
• * 1.13

  Contract for retaining of Tithes.
• * 1.14

  Admiralty.
• * 1.15

  Prohibition.
• * 1.16

  At the Archess discussed in right of Office.
• * 1.17

  Prohibition.
• * 1.18

  Admiralty for staying ships for Ballast.
• * 1.19

  High Commissi∣oners and their power in Mini∣string O••th and taking ob∣ligation.
• * 1.20

  High Commis∣sion Clan∣destine marri∣age.
• * 1.21

  Admiralty Co••rt, if a thing done be∣yond Sea shall be there tried.
• * 1.22

  Agreement by word •…•…p back tithes.
• * 1.23

  Where a Prohi∣bition shall be granted with∣out Action han∣ging.
• * 1.24

  High Commis∣sioners Alimo∣ny, Adultery.
• * 1.25

  Houghton.
• * 1.26

  Shirley.
• * 1.27

  Barker.
• * 1.28

  Court of Admi∣ralty's Juris∣diction.
• * 1.29

  Admiralty.
• * 1.30

  Prohibition.
• * 1.31

  Modus deci∣mandi.
• * 1.32

  Prohibition to a Court Baron.
• * 1.33

  Replevin.
• * 1.34

  2. Executors one refuses.
• * 1.35

  Waste. 2. Ex∣ecutors, one re∣fuses.
• * 1.36

  Bargaine and sale upon Cond•…•…
• * 1.37

  Ravishment of Ward.
• * 1.38

  Mich. 〈◊〉〈◊〉. Ja∣cobi. Rot. 213.
• * 1.39

  Common of Pasture.
• * 1.40

  Trespasse.
• * 1.41

  Ejectione fir∣mae.
• * 1.42

  Common Re∣covery.
• * 1.43

  Judgement in Debt.
• * 1.44

  Accompt.
• * 1.45

  See the begin∣ning. fol.
• * 1.46

  Debt by Exe∣cutor.
• * 1.47

  Administrators during the mi∣nority of the Executor.
• * 1.48

  Action upon the Case for words.
• * 1.49

  Replevin, At∣tornement of Tenant, being under age of 21. yeares.
• * 1.50

  Shirley.
• * 1.51

  Harris.
• * 1.52

  Harris.
• * 1.53

  Montague.
• * 1.54

  Hutton.
• * 1.55

  Surrender after Statute ac∣knowledged.
• * 1.56

  Executors sued and also the Heire.
• * 1.57

  Court of Equi∣ty.
• * 1.58

  Debt upon a Bill.
• * 1.59

  Harris.
• * 1.60

  Shirley.
• * 1.61

  Fealty gives Seisin of all an∣nuall Services.
• * 1.62

  Atturney brings Action of Debt for Fees.
• * 1.63

  Survivor doth not hold a∣mongst Mer∣chants to have all.
• * 1.64

  Award void.
• * 1.65

  Action upon the Case for words.
• * 1.66

  Devise that Executors shall sell Land.
• * 1.67

  A Towne incor∣porated with the consent of the greater part. Action on the Case for slan∣der.
• * 1.68

  Action upon the Case for su∣ing one in a Court which hath no Juris∣diction.
• * 1.69

  Prescription for Common for Beasts without number.
• * 1.70

  Priviledge out of higher Court.
• * 1.71

  Fine amended.
• * 1.72

  Feoffinent to a Son and Heir for a valuable consideration. Avowry.
• * 1.73

  Teste of a Ve∣nire facias a∣mended after verdict.
• * 1.74

  Ejectione fir∣me.
• * 1.75

  Ejectione fir∣me.
• * 1.76

  Dodridge.
• * 1.77

  Houghton.
• * 1.78

  Replevin, Grant without date.
• * 1.79

  Obligation.
• * 1.80

  Accompt.
• * 1.81

  Information.
• * 1.82

  Dodridge
• * 1.83

  Hanghton.
• * 1.84

  Montague.
• * 1.85

  Dodridge.
• * 1.86

  Dower.
• * 1.87

  Debt against Administrator.
• * 1.88

  Commission to the Councell in Wales.
• * 1.89

  Caveat to a Bishop.
• * 1.90

  If administra∣on to the next of blood cannot be repealed.
• * 1.91

  Action for words.
• * 1.92

  Trespasse for breaking a House and ta∣king a Cow.
• * 1.93

  Haughton.
• * 1.94

  Barker.
• * 1.95

  Barr not good.
• * 1.96

  Copy-hold in∣tailed.
• * 1.97

  Extent upon a Statute.
• * 1.98

  Summons in Dower
• * 1.99

  Patent of a Judge of the Common bench.
• * 1.100

  Action upon the case for slander
• * 1.101

  Haughton.
• * 1.102

  Barker.
• * 1.103

  Periured Acti∣onable.
• * 1.104

  Trespasse for imprisonment
• * 1.105

  Dodridge.
• * 1.106

  Hutton.
• * 1.107

  Coram non ju∣dice.
• * 1.108

  Judgement void.
• * 1.109

  Shirley.
• * 1.110

  Wynch.
• * 1.111

  Foster.
• * 1.112

  Arbitrement:
• * 1.113

  Lease by the Dean and Chapter of Norwich.
• * 1.114

  Hutton.
• * 1.115

  Haughton.
• * 1.116

  Office granted by a Bishop.
• * 1.117

  Assumpsit.
• * 1.118

  Wilt of Right.
• * 1.119

  Haughton.
• * 1.120

  Nicholls.
• * 1.121

  Dower of tit••e of Wooll.
• * 1.122

  Attachment.
• * 1.123

  Executrix du∣ring nonage.
• * 1.124

  Nicholls.
• * 1.125

  Harris.
• * 1.126

  Copy-holder.
• * 1.127

  Harris.
• * 1.128

  Dodridge.
• * 1.129

  Coke.
• * 1.130

  Replevin.
• * 1.131

  Waste.
• * 1.132

  Informer.
• * 1.133

  Lybell.
• * 1.134

  Debt against Administrator.
• * 1.135

  Copy-hold.
• * 1.136

  Coke.
• * 1.137

  Revocation of Uses.
• * 1.138

  Dodridge.
• * 1.139

  Nicholls.
• * 1.140

  Dodridge.
• * 1.141

  Nichols.
• * 1.142

  Wynch.
• * 1.143

  Warburton.
• * 1.144

  [Coke.]
• * 1.145

  Common Reco∣very.
• * 1.146

  Obligation to perferme Cove∣nants.
• * 1.147

  Arrest of Judg∣ment
• * 1.148

  Audita querela.
• * 1.149

  Wast.
• * 1.150

  Estrepement awarded.
• * 1.151

  Ejectione firme. Refusall.
• * 1.152

  Lord of a Mannor inclose the Demesnes adjoyning to the Common.
• * 1.153

  Warrantia Charte.
• * 1.154

  Dodridge,
• * 1.155

  Nicholls.
• * 1.156

  Devise of a Lease.
• * 1.157

  Dodridge.
• * 1.158

  Harris.
• * 1.159

  Assent to a Legatee.
• * 1.160

  Remainder of a Chattell.
• * 1.161

  Sherley.
• * 1.162

  Debt by Obli∣gation.
• * 1.163

  Request is ne∣cessary for his Rent, though that he have a bond for per∣forming Cove∣nants.
• * 1.164

  Nichols.
• * 1.165

  Debt▪
• * 1.166

  Wynch.
• * 1.167

  Warburton.
• * 1.168

  Debt against Executors.
• * 1.169

  Davis.
• * 1.170

  What acts doe make an Exe∣cutor, De son tort, what not.
• * 1.171

  Barker.
• * 1.172

  Warburton.
• * 1.173

  Wynch.
• * 1.174

  Trespasse.
• * 1.175

  Harriot.
• * 1.176

  Nicholls.
• * 1.177

  Harris.
• * 1.178

  Coke.
• * 1.179

  253 Eliz. Dyer 193. a. Wrensfords case according∣ly.
• * 1.180

  Warberton.
• * 1.181

  Wynch.
• * 1.182

  Release.
• * 1.183

  Cinque Ports.
• * 1.184

  Tenant for life with warranty.
• * 1.185

  Nicholls.
• * 1.186

  Haughton.
• * 1.187

  Wynch.
• * 1.188

  Warburton.
• * 1.189

  Ayd granted.
• * 1.190

  Coke.
• * 1.191

  Wynch.
• * 1.192

  Verdict uncer∣taine.
• * 1.193

  Falkland, What is so cal∣led.
• * 1.194

  Warburton.
• * 1.195

  Coke.
• * 1.196

  Quod non oc∣cupantur con∣ceditur.
• * 1.197

  Debt against Administrator for Rent in the Debet and Detinet.
• * 1.198

  Chibborne.
• * 1.199

  Detinet onely.
• * 1.200

  2.
• * 1.201

  Heire charged in Debet and Detinet.
• * 1.202

  3.
• * 1.203

  Towse, Crook, and Harris.
• * 1.204

  Joynt Cove∣nant shall sur∣vive.
• * 1.205

  Copy-holder shall hold charge.
• * 1.206

  Error.
• * 1.207

  Elegit.
• * 1.208

  Testatum where no Writ had issued.
• * 1.209

  Confirmation to a Copy-holder, destroys Com∣mon.
• * 1.210

  Expresse Cove∣nant qualifies Covenant in Law.
• * 1.211

  Prohibition.
• * 1.212

  Defendant re-enters after Possession deli∣vered by Habe∣re facias pos∣sessionem.
• * 1.213

  Custome among Copy-holders.
• * 1.214

  Nonsuit after▪ Verdict.
• * 1.215

  Reservation of Rent, Michael∣masse, or ten dayes after.
• * 1.216

  Grant of Com∣mon extinct.
• * 1.217

  Exposition of Usage.
• * 1.218

  Ejectione fir∣me.
• * 1.219

  Errour.
• * 1.220

  Abatement of a Writ by entry.
• * 1.221

  Markhams Grant.
• * 1.222

  Earle of Rut∣lands Patent.
• * 1.223

  Challenge.
• * 1.224

  Earl of Rut∣lands Patent.
• * 1.225

  Challenge.
• * 1.226

  Abatement.
• * 1.227

  Errour?
• * 1.228

  Variance.
• * 1.229

  Seisin.
• * 1.230

  Abridgment of the Plaint in Assise. Yelverton. Fenner.
• * 1.231

  Challenge prin.
• * 1.232

  Flemming.
• * 1.233

  What matter shall be assign∣ed for Error after Judge∣ment.
• * 1.234

  Variante.
• * 1.235

  Challenge.
• * 1.236

  Seisin.
• * 1.237

  Misnaming of a Corporation.
• * 1.238

  Walter
• * 1.239

  Yelverton.
• * 1.240

  Fenner.
• * 1.241

  Flemming.
• * 1.242

  Prohibition.
• * 1.243

  Prohibition.
• * 1.244

  A married Wife cannot make a Letter of Attorney.
• * 1.245

  Replevin.
• * 1.246

  Warburton Ju∣stice.
• * 1.247

  Walmesley.
• * 1.248

  Re-entry after possession exe∣cuted.
• * 1.249

  Slander of Attorney.
• * 1.250

  Grand Cape Petit Cape.
• * 1.251

  Waging Law.
• * 1.252

  Release.
• * 1.253

  Inn-Keeper in London.
• * 1.254

  Action of false Imprisonment.
• * 1.255

  Serieant Har∣ris the younger.
• * 1.256

  Walter
• * 1.257

  Walmesley.
• * 1.258

  Coke.
• * 1.259

  Priviledge.
• * 1.260

  Assise.
• * 1.261

  View.
• * 1.262

  Coke.
• * 1.263

  Walmesley.
• * 1.264

  Challenge.
• * 1.265

  Errour in a Fine.
• * 1.266

  Barwick.
• * 1.267

  Returne of Writs.
• * 1.268

  Idemptitas no∣minis.
• * 1.269

  Fine.
• * 1.270

  Infant.
• * 1.271

  Tayle.
• * 1.272

  Maintenance.
• * 1.273

  Habeas Corpus.
• * 1.274

  Prohibition.
• * 1.275

  Trespasse for Slander.
• * 1.276

  Party Jury of two Counties.
• * 1.277

  Action upon the Case for Slan∣der.
• * 1.278

  Errour.
• * 1.279

  Covenant for Rent.
• * 1.280

  Continuance.
• * 1.281

  Assumpsit. Consideration.
• * 1.282

  Debt against Executors.
• * 1.283

  Errour. Ve. fa. & hab. Carpus.
• * 1.284

  Formedon in Remainder.
• * 1.285

  Challenge.
• * 1.286

  Partition.
• * 1.287

  Dures.
• * 1.288

  Action upon the case for slander.
• * 1.289

  Prohibition.
• * 1.290

  Will.
• * 1.291

  Devise.
• * 1.292

  Priviledge. Postea 218.
• * 1.293

  Adjournment of Tearm
• * 1.294

  Infant levies Fine brings Errour
• * 1.295

  Action upon the Case.
• * 1.296

  Action upon the Case.
• * 1.297

  Debt for Obli∣gation.
• * 1.298

  Hutton.
• * 1.299

  Dodridge.
• * 1.300

  Court.
• * 1.301

  Sheriff commit∣ted to the Fleet.
• * 1.302

  Grant of a Rent.
• * 1.303

  Priviledge of London.
• * 1.304

  Harris.
• * 1.305

  Hutton.
• * 1.306

  Where the Owner of Wood may Inclose.
• * 1.307

  Hutton.
• * 1.308

  Arbitrement. Submissior. Revocation.
• * 1.309

  Devise and grant ••enures to bargaine and Sale.
• * 1.310

  Harris.
• * 1.311

  Lease to deter∣mine upon Li∣mitation.
• * 1.312

  Grant of the King that the Burrough should be in∣corporated.
• * 1.313

  Bayle.
• * 1.314

  Suit begun, hanging another Writ.
• * 1.315

  Casuall intire Services.
• * 1.316

  Harris.
• * 1.317

  Nicholls.
• * 1.318

  Foster.
• * 1.319

  Dauiell.
• * 1.320

  Warburton.
• * 1.321

  Walmesley.
• * 1.322

  Coke.
• * 1.323

  Trade with In∣fidels without, License.
• * 1.324

  Prohibition to the Court of Requests.
• * 1.325

  Approvement of Common.
• * 1.326

  Walmesley.
• * 1.327

  Foster.
• * 1.328

  Action upon the Case for Slan∣der.
• * 1.329

  Bankrupt acti∣onable.
• * 1.330

  Grant of Re∣version.
• * 1.331

  Error in Pro∣clamation.
• * 1.332

  Forfeiture of Office of a Chi∣roghapher.
• * 1.333

  Release.
• * 1.334

  Error in a Writ of Dower.
• * 1.335

  Copy-hold.
• * 1.336

  Certificate of the Bishop.
• * 1.337

  Minister Ar∣rested.
• * 1.338

  Grant of the King of Alnage.
• * 1.339

  Haughton.
• * 1.340

  Dodridges▪
• * 1.341

  Statutes, how to be under∣stood, &c.
• * 1.342

  Account.
• * 1.343

  Devise of a Teerme.
• * 1.344

  Award.
• * 1.345

  Submission.
• * 1.346

  Arbitrement.
• * 1.347

  Where the death of the Defen∣dant in Execu∣tion shall be sa∣tisfactory.
• * 1.348

  Dodridge.
• * 1.349

  Certiorari.
• * 1.350

  Outlawry.
• * 1.351

  Hutton.
• * 1.352

  Foster.
• * 1.353

  Debt upon es∣cape against whom.
• * 1.354

  Warburton.
• * 1.355

  Land extended at too high rate.
• * 1.356

  Walmsley.
• * 1.357

  Coke.
• * 1.358

  Harris.
• * 1.359

  Haughton.
• * 1.360

  Foster Justice.
• * 1.361

  Warburton.
• * 1.362

  Walmsley.
• * 1.363

  Coke.
• * 1.364

  Charta de Fo∣resta.
• * 1.365

  Assise Office.
• * 1.366

  Trespasse.
• * 1.367

  Estovers.
• * 1.368

  Boote, its signi∣fication, &c.
• * 1.369

  Nicholls.
• * 1.370

  Walmesley.
• * 1.371

  Coke.
• * 1.372

  Fee when for∣feited.
• * 1.373

  Trespass.
• * 1.374

  Grant le Roy.