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.

SPECIALL OBSERVATIONS AND RESOLUTIONS OF THE JUDGES OF THE COMMON PLEAS. (Book 1)

Vpon severall Actions upon the Case, there depending and adjudged. (Book 1)

PEdley versus Langley, Hill. 14. Ja. rotulo; the Plain∣tiff * 1.1 brought his Action for these words, You are a Bastard, for your Father and Mother were never married. The Defendant pleads that the Plaintiff was a Bastard, and justifies the words laid: and it was held by the Court, that this Issue should be tried by the Countrey, and not by the Bishop, as in other Cases.

SMayles one of the Attourneys, &c. versus Smith, for these words, * 1.2 he, meaning the Plaintiff, took corruptly five Marks of Brian Turnor, being against his own Client, for putting off and delaying an Assize against him: and after a Verdict, exception was taken against the De∣claration, for that the Plaintiff did not expresly alledge that at the time of speaking the words, He was an Attourney, but layd it

that he had been an Attourney. The Court held the words would bear Action.

MAle versus Ket, Hill 14. Jac. rotulo 1506. for these words, Wil∣liam * 1.3 Male did steal my Corn out of my Barn. Judgement for the Plaintiff. The Court held that an Action would lie for these words, You are a Thief and have stollen a Cock, which was but Petty Larceny.

COwte versus Gilbert, Hill. 10. Jac. rotulo 3176. Thou art a Thief, and hast stollen a Tree. Judgement, that the Plaintiff should take nothing by his Writ. The like, Thou art a Thief, and hast stollen my Maiden-head; no Action.

HArding versus Bulman, Hill. 15. Jac. The Plaintiff declares, that in such a Term he had brought an Action of Case against B. for scan∣dalous words, to which he pleaded not guilty; and at that Triall gave in Evidence to the Jury, to take away the Plaintiffe Credit and Repu∣tation, that the Plaintiff was a common Lyar, and recorded in the Star-chamber for a common Lyar, by reason whereof, the Jury gave the Plaintiff but very small Damage, to the Plaintiffs Damage of, &c. The Defendant pleads not guilty. And it was moved in Arrest of Judgement, that the Action would not lie. And of that opinion the Court seemed to be.

BRidges one of the Attourneys, versus Playdell, for words, You, meaning the Plaintiff, have caused this Boy, meaning A. W. then present, to perjure himself. Judgement for the Plaintiff.

STone versus Roberts, Mich. 15. Jac. rotulo 635. for these words, Thou art a Witch and an Inchanter, for thou hast bewitched * 1.4 Stronges Children; no Action lies but if thou say, Thou art a Witch and hast bewitched Children, and that they are wasted and destroy∣ed; they are actionable.

SCarlet versus Stile, Trin. 14. Jac. rotulo 541. for these words, * 1.5 Thou didst steal a Sack and Curricomb, and I will make thee pro∣duce it; and thou didst steal my Fathers Wood, and didst give it to a Whore. The Defendant justifies, that such a day the Goods were stollen, and there was a common fame and report that the Defendant had stollen them, and upon that report the Plaintiff did vehemently suspect that the Defendant had stollen them, and thereof did inform a Justice of the Peace, and complaining of the Defendant to the Justice, and informing him of the Premises, did speak the words before men∣tioned.

If a Felony be committed, it is good cause to arrest one for Felony, but not to speak words to defame one.

If there be two Issues in severall Counties in Trover, and one is tried, and Judgement and Execution of the Costs and Damages; and afterwards the other Issue is tried, and Costs thereupon, the last is er∣ronious, as to the Costs. Broccas Case.

Note, Trover was brought against Husband and Wife for Goods, * 1.6 which came to the hands of Husband and Wife, & the Conversion was alleadged to be by the Husband alone, for the Wife could not convert. And the Court held that the Action would not lie against the Wife.

MOse versus Canham, Mich. 6. Jac. rotulo 508. The Plaintiff de∣clares, * 1.7 that one Levet was indebted in such a summ, and for the payment thereof had delivered to the Plaintiff divers Goods of the said Levets: the Defendant in consideration that the Plaintiff would deliver to the Defendant the said Goods, promises to pay the Plaintiff the money due from Levet: and exception was taken to the Declara∣tion, for that the certainty of the Goods were not expressed, and for that the consideration was but collateral. Another Exception for that the Plaintiff might grant the Goods over, but the Court held the con∣trary. And Judgement for the Plaintiff.

SMith versus Bolles Sheriff of London, Pasc. 9. Jac. rotulo 1353. * 1.8 In case for that the name of the Sheriffs were omitted, on the ve∣nire fac. And for that cause one Judgement given for the said Smith was reversed by Writ of Error. And for that Misprision Smith brought such Action of the Case.

HArris versus Adams, If thou hadst had thy Right, thou hadst * 1.9 been hanged for breaking of Paches House; the words not acti∣onable.

Thou art a Thief, thou hast stollen the Town-beam, meaning the Town of Wickham: Serjeant Hutton of opinion the Action would lie.

STephens Attourney, versus Battyn, for words, Thou hast cozened * 1.10 M. Windsor of his Fee, and I will sue thee for it in the Star-cham∣ber, for that thou didst not come for Windsor. Judgement for the Plaintiff. Trin. 11. Jac.

BRadley versus Jones, Trin. 11. Jac. rotulo 3390. The Plaintiff brings * 1.11 his Action upon the Case for unjust vexation. The Defendant had exhibited Articles against the Plaintiff, to have the good Behaviour against him, and took his Oath before Doctor Cary one of the Ma∣sters of the Chancery: and afterwards the Defendant ceased prosecu∣tion

there, and obtained from the Kings Bench a Supplicavit, to have the good Behaviour there. And the Court was of opinon, that the Acti∣on would lie, because he prosecuted in the Kings Bench and not in the Chancery. But the Court said, that if he had prosecuted in the Chan∣cery, though the Articles had been scandalous, yet no Action would have lyen; for a man shall not be punished for mistaking the Law, for he may be misadvised by his Counsel.

BRooks versus Clerk, Pasch. 11. Jac. rotulo 307. Action brought for these words, His Son Brooks hath deceived me in a Reckoning for * 1.12 Wares. And his Debt-book which he keepeth for Sale of Wares in his Shop is a false Debt-book; and I will make him ashamed of his Cal∣ling. Hubbart and Nichols against the Plaintiff, and Warburton for the Plaintiff.

Pasch. 11. Jac. rotulo 2147. Action of the Case brought for a Nu∣sance for building the Defendants House so near the Plaintiffs, that a great part of it superpends. And the Plaintiff in the conveying his Title, shews a Lease for years made to him, if the Lessor should so long live, and doth not aver the Life of the Lessor, but saith, that by vertue of the Demise the Plaintiff hath been and then was thereof possessed, and adjudged sufficient.

MOrton versus Leedell, Hill. 10. Jac. rotulo 1783. Action of the * 1.13 Case for these words, He, meaning the Plaintiff, is a lying dis∣sembling Fellow, and a mainsworn and forsworn Fellow. And Judge∣ment for the Plaintiff after divers motions.

THomas Attourney versus Axworth, Pasch. 11. Eliz. rotulo 352. * 1.14 Action of the Case for these words, This is John Thomas his wri∣ting, and he hath forged this Warrant, meaning a Warrant made by Buller Sheriff of that County, upon a Capias prosecuted out of the Court of Common Pleas by M. H. against the Defendant, and di∣rected to the Sheriff.

ROw versus Alport, Mich. 11. Jac. rotulo 1527. Action upon the Case brought for suing in the Admiral Court, for a thing done up∣on the Land, and not upon the high Sea.

BRay versus Ham, Trin. 13. Jac. rotulo 1994. Action of the Case for these words, Thou art a cozening Knave, and thou hast cozened me in selling false Measure in my Barley, and the Countrey is bound to curse thee for selling with false Measure, and I will prove it; and thou hast changed my Barley which I bought of thee. And the Plain∣tiff sets forth in his Declaration, that he was Bayliff to W. C. and

H. C. of certain Lands in P. for three years; and during the said time, had the care and selling of divers Corn and Grain growing upon the same Land: and after Triall and Verdict for the Plaintiff, it was moved in Arrest of Judgement, that the Action would not lie; but the Court were of a contrary opinion, and Judgement was given for the Plaintiff.

BRown versus Hook, Pasch. 13. Jac. rotulo 234. Action of the Case * 1.15 for these words, Brown is a good Attourney, but that he will play on both sides. And it was moved in Arrest of Judgement, that those words would not bear an Action, but the Court held they were actio∣nable, but did not give Judgement, because the Plaintiff did not shew in his Declaration, that the words were spoken of himself.

STober versus Green, Mich. 11. Jac. rotulo 1••91. Action of the Case for these words, Thou didst keep and sell by false Weights, and in 24. s. bestowing, thy Weights were false two Ounces, and thy Man will be a Witness against thee, and I will prove it. The Defendant pleaded that the Plaintiff occupied one Shop, and kept unlawfull Weights, and by such Weights sold, by reason whereof he said these words, Vi∣delicet, Thou didst keep and sell by unlawfull Weights, and in 24. s. bestowing, thy Weights were false an Ounce and three quarters, and thy Man, &c. And traversed the words in the Declaration, and it was adjudged a naughty Traverse, for that the words in the Bar, and justi∣fied by the Defendant are actionable.

AGar versus Lisle, Mich. 11. Jac. rot. 318. Action of Trover brought * 1.16 in York-shire, the Defendant justifies for Toll at Darnton in Dur∣ham, and traverse, &c. The Court doubts of his Traverse, being onely for the County of York, whereas it ought to be any where else gene∣rally. And Hobart said, the Bar was nought, because in the justification, no conversion was sufficiently alleadged. And note, that if a man doth a thing which is allowable by the Law, as to distrain Cattle, and im∣pound them, that is no conversion; but if he work them it is a conversion.

AƲstin versus Austin, Trin. 10. Jac. rotulo 3558. In Troyer, the * 1.17 Defendant pleads, that before the time that the Plaintiff supposes the Goods to come to the Defendants hands, one S. A. was possessed of the Goods, and amongst other Goods sold them to the Defendant, but kept them in his own hands, and afterwards sold them to the Plaintiff, by reason whereof the Plaintiff was possessed, and after∣wards looses them, and they came to the Defendants hands, who converts them, as it was lawfull for him to do. The Plaintiff demurs, and it was held a naughty Bar, for it amounts to a Non cul. And Cook doubted whether the Court should compell the Defendant to

plead, Non cul. or award a Writ of Injury. And a Writ of Inquire was awarded.

ALlyns versus Sparkes, & al. Trin. 8. Jac. rotulo 1606, Action of * 1.18 the Case brought for stopping up the Plaintiffs way, and the Plaintiff declares that one H. B. was seised of the Mannour of M. of which two Acres were customary Land, and that the Lord of the Mannour had for himself, and his customary Tenants for the said two Acres, a certain high-way in, by, and thorow, &c. And that the Lord of the Mannour granted the said two Acres to the Plaintiff, and that the Defendant made and erected one Ditch and Hedge, by reason whereof the Plaintiff lost the benefit of his way; and after Triall and Verdict, for the Plaintiff it was moved in Arrest of Judgement, because it did not appear in the Declaration to what Village the common way led to. And it was held a good Exception and Judgement arrested: but if it had been unto a common way there, or in such a Village, it had been good.

KEnt versus Prat, Hill. 7. Jac. rotulo 131. Action upon the Case, * 1.19 the Plaintiff declares, that Prat was Rector of the Church of S. And that Kent was lawfully possessed of the Parsonage-house, and that there were divers strifes between the Plaintiff and Defendant for the said Rectory: and that the said Prat, in consideration that the said Kent would surrender the Parsonage-house, and the Gleab-land, which were then sowed by Kent, he promised, &c. And after Triall it was mo∣ved in Arrest of Judgement, that the Surrender was not a valuable consideration, because it did not appear to the Court that Kent had a∣ny Estate but at will, which is determinable at the will of the Lessor, and so he surrendred nothing, but if these words had been in the count, viz. of the Demise of the said Prat, For a term of divers years, it had been good, though the certainty of the years had not been ex∣pressed.

SMailes versus Belt, & uxorem, Hill. 1. Jac. rotulo 1372. Action up∣on the Case, for words spoken by the Woman, Videlicet, Thou art a Theif, and a mainsworn Theif, and a Verdict for the Plaintiff, and mo∣ved in Arrest of Judgement, that the Action would not lie, but Judgement was arrested, because the Issue was Quod ipsi non sunt cul. and it ought to have been that the Woman was not guilty.

YArdley Attourney, versus Ellyll, Mich. 11. Jac. rotulo 1252. Action * 1.20 upon the Case brought for these words, Your Attourney, meaning the Plaintiff, is a bribing Knave, and hath taken twenty pounds of you to cozen me: the Plaintiff laid a Communication, such a day and

place by the Defendant with one B. which B. had before that time retained the Plaintiff to be his Attourney, concerning the Plaintiff, Hubbart and Nichols held the words actionable, videlicet, for the first word, Bribing Knave, and that the last words did not extenuate or weaken the former: if the words touch him in his Profession, the Action will lie, for it is against the Oath of an Attourney. Birtridge is an old perjured Knave, and that is to be proved by a stake parting the Land between M. and C. One Judge for the Plaintiff, and two for the Defendant.

COrnhill versus Cowler. Trespass upon the Case brought against Ba∣ron * 1.21 & Feme for words spoken by the Woman; the Baron & Feme plead Quod ipsi in nullo sunt cul. de praemissis, and the Jury finde that the Woman was guilty, and Exception taken after Triall to the Issue and Verdict, and they were both aided by the Statute of Ieofayles. But another Exception was, that the Action was laid in Suff. And the Ad∣dition in the Writ was A. C. de C. in Com. Essex, and in the Declaration the Plaintiff alleadges, that the words were spoken at C. in the Coun∣ty aforesaid, which was in the County of Essex, and so a Mistryall.

CHimery versus God. Action upon the Case, upon a promise to dis∣charge and save harmless the Plaintiff against all manner of persons, and shews a Suit for Tithes in Norwich Court, and the Defendant re∣plies that the Plaintiff was not damnified, and the Plaintiff rejoyns that he was damnified, to wit, at S. aforesaid, which was in the County of Suffolk, where the Action was brought, and the Court held the Cause was mis-tried, because the Suit was in Norwich, and ought to be tried in Norwich, and not in Suffolk, and these words Apud, S. praedictam were idle.

TIllet versus Bruen. for words, Trin. 12. Iac. The Plaintiff shews a Suit in Colchester Court, and a Triall there before the Bayliff, and that the Plaintiff gave in Evidence his knowledge; and the De∣fendant willing to defame the Plaintiff, as if he had given false Evi∣dence, said of the Plaintiff, Thou art as much forsworn, meaning in the Evidence aforesaid by the Plaintiff, upon his Oath in Form afore∣said given, as God is true; and moved in Arrest of Judgement, that * 1.22 the Inuendo would not maintain the Action, and so adjudged.

LAmpleigh versus Braithwaie, Mich. 13. Iac. rotulo 712. Action up∣on the Case, in which the Plaintiff sets forth, that whereas the Defendant had feloniously killed a Man, and after the Felony com∣mitted did earnestly request and solicit the Plaintiff that he would labor and indeavour to obtain from the King, for the Defendant, a Par∣don

for the Felony, upon which the Plaintiff at the instance and re∣quest of the Defendant, by all lawfull ways and means possible, did often, and by many days labor and indeavor to obtain, &c. Videlicet, by riding and journeying at his own cost and charges, from L. unto the Village of R. where the King then was, and from thence back again to L. to obtain, &c. The Defendant afterwards at H. in confideration of the Premisses, did assume and promise to give the Plaintiff an hun∣dred pounds of lawfull money, when he should be required: and a Verdict for the Plaintiff, and moved in Arrest of Judgement, for that it did not appear that the Plaintiff had spoken to the King for a Par∣don, nor done any thing, or obtained a Pardon: and Judgement was given for the Plaintiff; Wynch said, the Promise was subsequent to the Request; and good; for although the Defendant had no good by it, yet because the Plaintiff was at costs and labor, and it was at the De∣fendants request, sufficient to maintain the Action. If I request one to do a thing for me, and make no promise, and after you let me know that you did such a thing for me, and then I promise to discharge or pay you, this is a good consideration, although the Promise go not with the Request; otherwise it is where a man doth me a curtesie without any request. And Hobart took this difference between a con∣sideration executed and executory; for where Non assumpsit is pleaded * 1.23 to a consideration executed, the Plaintiff needs onely to prove the Promise; for where the consideration is executory, the Defendant may take Issue as well for not performing the consideration executo∣ry, as upon the Promise.

GLover versus Taylor, Hill 13. Iac. rotulo 852. Action upon the * 1.24 Case, for ill using a Horse, so that the Horse died, and the De∣fendant promised to re-deliver the Horse. The Defendant pleads Non cul. And after a Verdict it was moved in Arrest of Judgement, be∣cause he did not plead Non assumpsit. And it was held a good Issue.

MArshall versus Steward, Mich. 13. Iac. rotulo 1134. Action upon * 1.25 the Case reciting the Statute of 1. Iac. against Invocation, &c. for these words, The Devil appeareth to thee every night in the like∣ness of a black Man, riding on a black Horse, and thou conferrest with him, and whatsoever thou dost ask he doth give it thee, and that is the reason thou hast so much money, and this I will justifie. Judge∣ment for the Plaintiff.

In Trover Judgement by Nihil dic. and Exception taken to the De∣claration, to stay the filing the Writ of Inquiry, because no day of the conversion was in the Declaration, and by two Judges held naught. Mich. 14. Iac.

PArker versus Parker, Hill. 12. Iac. rotulo 426. In Trover after a * 1.26 Verdict, it was moved in Arrest of Judgement, that the imparlance Roll was entred with Spaces for the possession and conversion, but both those Spaces in the Issue were filled up, and held good. The Im∣parlance was entred. Mich. 12. Iac. rotulo 547.

WHitepain versus Cook, Pasch. 12. Iac. For words, Thou art a Rogue, and I will prove thee a Rogue: no Judgement.

STone versus Bates. A man may well incourage one that was robbed, to cause the Felon to be indicted, and accompany him to the Assizes, and this shall be lawfull for to do, without incurring the danger of an Action upon the case, upon conspiracy; but if he knew that he was not robbed, then he is in danger of the Action upon the case.

COpe and his Wife administratrix, Plaintiffs, versus Lewyn, Trin. * 1.27 12. Iac. rotulo 1714. An Action upon the case brought upon a promise made to the Intestate, and in the Court omits to shew the Administration: and after Triall, that Fault moved in Arrest of Judge∣ment; and the whole Court was of opinion, that he should not have his Judgement, for it did not appear that he was Administrator; for at the Common Law no Administration lay, but the Ordinary ought to have the Goods.

HArvey Attourney, versus Bucking. Mich. 12. Iac. rotulo 842. * 1.28 Action of the case for slanderous words, He, meaning the Plain∣tiff, shewed me first a Bill of fourty pounds, without a Seal, meaning the said Bill by the said E. as aforesaid, sealed and delivered; and afterwards he shewed me the same Bill with a Seal, and he, meaning the Plaintiff, hath forged the Seal of the same Writing, meaning the Seal of the said Bill by the said E. as aforesaid, sealed and delivered. The Defendant traverses the words, and a Verdict for the Plaintiff, and it was alleadged in Arrest of Judgement, that the Declaration was naught, for that it did not directly appear that there was any communication between the Plaintiff and Defendant concerning the Bill, but onely in the (inuendo) which will not maintain the Action, and Judgement arrested.

MOrton versus Leedall, Hill. 10. Iac. rotulo 1783. Action upon the * 1.29 case for these words, He is a lying and dissembling Fellow, and a mainsworn Fellow. And a Verdict for the Plaintiff. And afterwards it was moved in Arrest of Judgement, that the Action would not lie, but at length Judgement was given for the Plaintiff. And Serjeant Hutton cited the like case, adjudged int. & Barnes, He is a mainsworn Villain. 〈◊〉〈◊〉 Skipwash

SKipwash versus Skipwash, Hill. 14. Iac. rotulo 3472. Action upon * 1.30 the case, that whereas the Defendant in consideration that the Plaintiff would marry one A. B. did assume to pay the Plaintiff twenty pounds when he should, after the Marriage, be thereunto re∣quested: The Plaintiff alleadges no special Demand: and that Fault was moved in Arrest of Judgement. Hobart and Wynch were for the Plaintiff, Warburton for the Defendant.

JOtham versus Ball, Hill. 12. Jac. rotulo 1920. Action upon the case * 1.31 for slanderous words, Videlicet, Your Master Euseby, meaning the Plaintiff, is a Rogue, a Rascall, and Forger of Bonds; the Plaintiff laid a Colloquium between the Defendant and one R. G. And after Verdict moved in Arrest of Judgement, for that it did not expresly appear, that the said R. G. at the time of speaking the words was Servant to the Plaintiff: and Judgement was stayed by the Court.

COddington versus Wilkin, for words, Trin. 12. Iac. He is a Theif, * 1.32 and why will you take a Theifs part: spoken 1. Martii 10. Iac. The Defendant justifies the words, because the Plaintiff stole Sheep. The Plaintiff by way of replication sets forth a general Pardon gran∣ted such a time, and further saith, that if any Felony were committed it was before the general Pardon made; and shews himself to be a Subject, and no person excepted in the Pardon. The Defendant de∣murs. The Court were of opinion, that by the Pardon both the Pu∣nishment and Fault were taken away; and that the wrong was done to the King by the Common Law; and the King being the supreme Head, if he pardons, the party is cleared of the wrong. As if a Vil∣lain be infranchised, he from thenceforth is no Villain.

Note, if a man upon good consideration promise to become bound to another by his Obligation to do an Act: and if he do not become bound, Action upon the case will lie against him: and the Plaintiff is not bound to tender him an Obligation, but the Defendant hath took it upon himself to do it.

RIchards versus Carvamell. Action of the case brought, and counts for non-payment of money at the Plaintiffs next coming into the * 1.33 County of Somerset; and avers, that such a day he came into the County of Somerset, Videlicet, apud T. in Com. Somerset, and that the Defendant, though often requested, hath not paid. And Excep∣tion taken because the Plaintiff did not alleadge in his count, that he gave notice to the Defendant when he came into the County of So∣merset, but not allowed, and Judgement given for the Plaintiff. And * 1.34 note, when a man assumes to pay money, or do any thing upon con∣dition, the Defendant may take Issue upon the condition, and needs

not plead Non assumpsit, but if he pleads Non assumpsit, then he con∣fesses the performance of the condition, which mark.

AƲstin versus Jarvis, Trin. 13. Jac. rotulo 2180. The Plaintiff de∣clares, * 1.35 that such a Day and Year he bought of the Defendant a Horse for a peice of Gold of the value of 22. s. by him to the De∣fendant then in hand paid, and for a 11. l. to be paid to the Defendant at the Day of Death or Marriage of the Plaintiff, which should first happen, for payment of which 11. l. the Plaintiff should bring to the Defendant one sufficient man to be bound, together with the Plaintiff to the Defendant: the Defendant in consideration thereof assumes to deliver the said Horse to the Plaintiff, when he should be thereunto requested: and the Plaintiff avers, that such a Day he brought the Defendant one sufficient man, Videlicet, I. A. de B. Yeoman, to be bound together with the Plaintiff to the said Defendant for the pay∣ment of the said 11. l. and shews that he requested the Defendant to deliver the said Horse, yet the Defendant hath not delivered him, ac∣cording to his promise. The Defendant pleads Non assumpsit. And a Verdict for the Plaintiff: and moved in Arrest of Judgement, for that the Plaintiff at the time of the Contract was an Infant, and that he could not perform his promise by reason of his Infancy, and there∣fore the promise void; and another Exception, for that it was not al∣leadged in what sum the Plaintiff and his Surety offered to be bound; and Judgement was, that the Plaintiff, Nihil capiat per breve.

JAcob versus Songate, Trin. 9. Jac. rotulo 2776. An Action upon the * 1.36 case brought for this word, Perjured. The Defendant justifies that it was found by Verdict, that the Plaintiff was perjured, but no Judge∣ment entred upon that Verdict. And whether the Plea were good, be∣ing there was no Judgement, was the Question: and it was adjudged no Bar, because no Judgement was given in the first-Action: and so Judgement entred for the Plaintiff.

CRuttall versus Hosener, Pasch. 16. Iac rotulo Action of the case for these words, He, meaning the Plaintiff, hath caught the French Pox, and brought them home to his Wife. And Judgement for the Plaintiff.

THornton versus Iepson. The Plaintiff being a Currier brought an * 1.37 Action upon the case for these words, He is a common Barretor; but the words would not lie for a man of that Profession, but would lie for a Justice of Peace or Lawyer.

IReland versus Smith, Hill. 9. Iac. rotulo Action upon the case * 1.38 brought for these words, You Norgate take part against me with Ireland, who is a Papist, and hath gotten a Pardon from the Pope, and can help thee to one, if thou wilt. The Plaintiff laid a communication between the Defendant and Norgate, and alleadges himself of the age of 40. years, and not above, because it might appear to the Court that he was born within Queen Elizabeths Reign. The Court held the Action would not lie, as it was adjudged in Halls case, and for this word Papist no Action will lie.

If I deliver my Goods to you to keep, and I request them, and you deny the Delivery of them; now an Action of Trover will lie, other∣wise * 1.39 it is without a Deniall; if I distrain Cattle, I must not use them.

WArter versus Freeman, Mich. 15. Iac. rotulo 1941. Action upon * 1.40 the case brought for that the Defendant sued out a Fieri fa∣cias upon a Judgement which he had against the Plaintiff, upon which Judgement the Defendant had before sued out a Fieri facias, and the Sheriff of Oxford had upon the first Fieri facias returned, that he had levied the Debt and Damages, and that they remained in his hands for want of Buyers; and the Defendant knowing that the Sheriff had levied the Debt and Damages, and intending to charge him, again prosecuted another Fieri facias, and that the Sheriff had again levied the said Debt and Damages, and hath paid the Debt and Damages to the Plaintiff, to wit, at Westminster, in Com. Middlesex, where the Action was brought; and Judgement after Debate was given for the Plaintiff, though the Defendant alleadged that the Fieri facias was an Act in Law, and so no cause of Action against him.

PArkhurst versus Powell, vic. Denbigh, Mich. 15. Iac. rotulo * 1.41 An Action of the case for a false Return of a Capias utlagat. and declares that he prosecuted a Capias utlagat directed to the Sheriff of Denbigh, where the Defendant inhabited, and delivered the said Writ to the Sheriff to be executed; and the Defendant being then in the company of the Sheriff, and might safely have arrested him, did not, but suffered him to escape, and returned that he was not to be found; and upon Not guilty pleaded, it was tried in the County of Middlesex, where the Action was brought; and moved in Arrest of Judgement, that the Triall ought to be in Denbigh, because the not arresting was the principal matter, but because the Action was groun∣ded upon double matter, the Plaintiff had his Election to bring his Action, either in the County of Denbigh or Middlesex, by the whole Court.

BLand versus Edmonds, Pasch. 16. Jac. rotulo 444. Action upon the * 1.42 Case brought for these Words, Videlicet, George Bland is a trou∣blesome Fellow, and he did combine with thee to trouble the Coun∣trey, and I hope to see thee at the next Sessions indicted for Barratry, or for sheep-stealing, as George Bland was at the last Sessions, for Bland was indicted the last Sessions for sheep-stealing. And it was held by the whole Court, that those Words would not bear an Action, the Plaintiff layed the Words to be spoken to one Jo. Eagle: and the De∣claration was held naught and insufficient, because it was not averred, that the Plaintiff was not indicted at the Sessions.

BRadshaw versus Walker, Hill. 16. Jac. rotulo Action upon the case brought for these words, Videlicet, Thou art a filching Fellow, and didst filch from A. B. 4. l. And Judgement that the Plain∣tiff should take nothing by his Writ; for it shall not be intended that he stole the money.

ADams versus Fleming, Hill. 16. Jac. rotulo 890. Action of the * 1.43 case brought for these words, Videlicet, He hath forsworn himself before the Councel of the Marches (meaning the Councel of the Marches of Wales) in the Suit I had against him there, and I will sue him for Perjury there. And after Verdict for the Plaintiff, moved in Arrest of Judgement, that the words were not actionable for their uncertainty, because the Court could not take notice that they had authority to hold plea in matters of record.

Judgement for the Plaintiff for these words, Thou art a false for∣sworn Knave, for thou didst take a false Oath before a Judge of Assise to hang a man.

GOre versus Colthorpe, Trin. 5. Jac. rotulo The Declaration was * 1.44 in consideration that the Plaintiff would give credit to E. C. then servant to the Defendant for any thing the said E. should deal for, to the use of the Defendant, with the Plaintiff, promised that he would see the Plaintiff contented that which the said E. should deal for with the Plaintiff, for the use of the Defendant any way, when the said Defendant thereof (after it should become due) should be requested, and a special Verdict by which it was found that the Defendant pro∣mised to see the Plaintiff contented, that which the above named E. C. should deal with the Plaintiff, for the use of the said Defendant any way. The Judgement of the Court was that the Verdict did not maintain the Declaration, because for collaterall matters which are not Duties, a Request is material, and are not like a Duty as for Debt, which is due, and no Day of payment expressed, that shall be alleadged to be when he shall be thereunto requested generally. For

if I sell my Horse for ten pounds, and no Day of payment, that shall be alleadged in the Count, Cum inde requisitus esset. And one case of Peters was cited, which was grounded upon a promise made in this manner, Marry my Neice, and when I come from London I will give you 100. l. and the Action was brought in this manner, Videlicet, in consideration that he would marry, A. promised to pay the Plaintiff 100. l. after he returned from London, when he was thereunto re∣quested: and for these words, when he was thereunto requested, the Action was maintainable.

HInch versus Heald, Trin. 17. Jac. rotulo Action upon the case * 1.45 for these words, Videlicet, He is a Witch, and hath bewitched me: and the Court held the Action would not lie, for he might be∣witch him by fair words, or fair looks.

GReen versus Harrington, Trin. 17. Jac. routlo 953. The Plaintiff declares that the Defendant such a Day was indebted to the * 1.46 Plaintiff in 10. l. for Rent due to the Plaintiff for one year ended at Michaelmas then last past, for divers Lands in H. demised to the De∣fendant by the Plaintiff, the Defendant in consideration thereof pro∣mised to pay the Plaintiff the said 10. l. when he should be thereunto requested. The Defendant pleads Non assumpsit: and after Verdict given for the Plaintiff it was moved in Arrest of Judgement, that there was no consideration to maintain the Action, because an Action of Debt lay upon the first Contract being in the realty; for upon an implied promise no Action will lie where it is in the realty, except there be a special promise made upon a collateral cause, Videlicet, If the Plaintiff had threatned suit for the said 10. l. and the Defendant, in consideration that he would forbear to sue, promises to pay, &c. and the like: for if a man be bound in a Bond to pay money, and the Day past, now an Action of the case will not lie for that money, ex∣cept there be a collateral promise: and so in the like cases: and Judge∣ment was given against the Plaintiff.

Michaelmas 17. Jac. It was adjudged in the Kings Bench in an Action upon the case, Videlicet, whereas the Defendant was indebted * 1.47 to the Plaintiff in 10. l. (without expressing the cause for which the Debt grew due) the Defendant in consideration that the Plaintiff at the special instance and request of the Defendant, then and there had given Day to the Defendant, untill a time to come, to pay the money, the Defendant promised to pay the money, that the Action was main∣tainable, without expressing the cause for which the Debt was.

Hill. 17. Jac. rotulo 2722. Action of the case brought for these words, Thou art a perjured Knave, and I will make thee wear Papers for it: the Defendant justifies the words, and shews that the Plaintff

was a Church-warden, and took his Oath to exercise that Office; and whereas one Article made, was, that he should present whether the Church-yard was repaired or no, and he knowing it, did not pre∣sent it.

Action of the case brought for these words, Thou art a scurvy per∣jured Knave; the Action will lie.

WIlson versus Sheriffs of London, Hill. 17. Jac. rotulo 3069. The * 1.48 Plaintiffs declare upon an escape made upon a Capias ad re∣spondendum, after the Defendant was arrested: the Defendant pleads a Custome in London, that the Maior and Sheriffs of London have used to inlarge Prisoners that were arrested, in coming, and returning from their Courts, having Causes there depending; and set forth a Plaint in London against the Defendant, and that he was arrested, and appeared, and pleaded to Issue; and as he was coming to the Court to defend that Action, he was arrested, as is supposed, in the Action upon the case brought against the Sheriffs; and shew that he was brought to the Court, and inlarged by the Court: and the Court held, that if a man were arrested in the face of the Court, the Court might discharge him, otherwise not.

PAin versus Newlin, Mich. 16. Jac. rotulo 3042. Action upon the * 1.49 case brought upon a promise and Judgement, by Nihil dicit: and at the return of the Writ to inquire, the Defendant moved in Arrest of Judgement, and shewed that the Day of the promise was supposed in the inquiry to be, Anno Domini 1614. And in the Declaration it was made 1617. and for that variance, Judgement was stayed.

BElcher versus Hudson, Hill. 6. Iac. rotulo 132. The Plaintiff de∣clares, * 1.50 that in consideration that the Plaintiff at the request of the Defendant would marry one T. M. his familiar Freind, the De∣fendant promised to pay the Plaintiff yearly after the Decease of the said T. M. 40. s. for her maintenance: and the Plaintiff averrs the Marriage, and that she survived. The Defendant pleads that the said T. M. in his life time after the Marriage, &c. did release to the De∣fendant all Actions as well real as personal, and all Demands and Challenges whatsoever, from the beginning of the World unto the Date thereof: to which Plea the Plaintiff demurrs, and adjudged a naughty Plea.

BOx an Attourney against Barnaby. Action upon the case for these * 1.51 words, George Box is a common maintainer of suits, and a Cham∣pertor, and a Plague of God consume him, and I hope to see his Bo∣dy rot upon the Earth like the Carkase of a Dog, and I will have him

thrown over the Bar next Term, and I will give a Beech to make a Gallows to hang him: and Judgement given for the Plaintiff, for this word Champertor, and no other.

Trin. 14. Iac. Action upon the case for these words, She is an arrant Whore, and had two Bastards in Ireland: and Judgement by the whole Court, that the words would not bear an Action.

YOrk versus Cecill, Mich. 14. Iac. Action upon the case brought by A. Tanner for these words, Thou art a bankrupt Knave: and the Court held that the Action would not lie: but Quaere.

Skaif versus Nelson, Mich. 12. Iac. rotulo 1106. Action upon the * 1.52 case brought for words against Husband and Wife, spoken by the Wife, and Judgement was entered for the Plaintiff, and in entering of the Judgement it was made, Et praedicta, E. (being the Woman) in mi∣sericordia, which was naught, for it should have been both the Hus∣band and Wife in misericordia: and after the Record was certified by Writ of Error; Serjeant Richardson moved that it might be amen∣ded, because the Judgement Papers were right, and so it was ordered to be amended according.

SMails an Attourney versus Moor, Hill. Iac. rotulo 753. Action * 1.53 upon the case for the words, He is a forging Knave: and the Court held that the words were actionable, for he alleadged in his Declara∣tion, that he was an Attourney of the Common Pleas, and so being touched in his Profession, the words would bear an Action: and if a man said of a Bishop, that he was a Papist, the Action would lie; be∣cause Religion is his Profession, and so he is defamed.

STeward versus Bishop, Trin. 14. Iac. rotulo 769. Action upon the * 1.54 case for these words, James Steward (meaning the Plaintiff) is in Berwick Gaol for stealing of a Mare and other Beasts: and after a Verdict for the Plaintiff, it was moved in Arrest of Judgement, that the words were not actionable, and so it was adjudged, for that he did not directly say, the Plaintiff was a Thief, but onely implied,

Hill. 15. Iac. rotulo An Exception taken to a Declaration in Trover brought by an Administrator, because he declares, that * 1.55 whereas he was possessed of divers Goods and Chattels, as of his own proper Goods, and should have said, as was pretended, as of the Goods and Chattels of the intestate at the time of his Death; but the Exception was over-ruled by the Court.

Exception to an Action of the case brought, and the Plaintiff de∣clares, that whereas the Plaintiff had delivered the Defendant unum statum salis Anglicae, a Bushel of Salt, pretending that (statum) had

another proper signification, but because it was shewed to the Court that (statum) by one Dictionary was Latine for a Bushel; Judgement was given for the Plaintiff.

In Trover it is usual to prove no more, but that you requested the * 1.56 Goods, and the Defendant refused to deliver them, this is a Conver∣sion. When a Justification arises upon a Sale, then I need traverse no more but the place alleadged, and not go to the whole County, but where it is a transitory, Trespass, as for Battery, taking of Goods, and the like, then the whole County must be traversed.

CAtford versus Osmond, Mich. 16. Jac. rotulo 1063. Action of Tro∣ver * 1.57 brought for two Steers, the Defendant being an Attourney of the Common-pleas justifies the taking as Under-sheriff, by reason of Process from the Exchequer to levy of the Occupiers of the Lands of divers persons in a Schedule in the said Writ named the Debts therein specified, and doth not recite the Schedule; and he being Under-sheriff took the Steers in the Land of the Plaintiff, which was lately one Stones, who was Debtor to the King in 59. s. being behinde upon the Land: and Exception was taken, for that it was not directly al∣ledged that the Land such a Day was the Land of the said S. The Writ commanded to levy the summs in the said Schedule mentioned; and if they could not, to take their Bodies; and it was adjudged a good Warrant to levy of the Occupiers of the Lands that were the said S. 59. s.

COles versus Flaxman, Hill. 14. Jac. rotulo 2175. Action of the case * 1.58 brought for disturbing the Plaintiffs Common. The Defendant pretends Title to the Common by reason of Common appurtenant to certain customary Land, of part of which he conveys a Title to him∣self, but not of the whole: and the Question was, whether it were Common appurtenant, or appendant? and if appurtenant it could not be divided.

KEymes versus Moxham, Trin. 15. Jac. rotulo 559. Action of the * 1.59 case brought for a promise made at C. for the Delivery of a Mare, which the Plaintiff delivered the Defendant to plow his ground in P. And shews the Defendant did so excessively and immoderately labor and work the said Mare, that the Mare died. The Defendant confesses the promise, and that the Mare at the time of the Delivery was in∣firm, and that he worked her moderately, and traverses the excessive labouring of the Mare: and after a Verdict, it was moved in Arrest of Judgement, that it was mis-tried, because the Venn was of C. which was naught, and there was no place alleadged where the ex∣cessive labouring was; for the Venn ought to come from that place where the laboring was.

HArbin and his Wife versus Green, Trin. 14. Jac. rotulo 2263. * 1.60 Action upon the case brought for not grinding his Corn at the Plaintiffs Mill, and shews that the Bishop of Salisbury was seised of four customary Mils, called A. in his Demesne, as of Fee in right of his Bishoprick; and prescribes that all Inhabitants and Residents with∣in the City of Salisbury, holding any ancient Mesuages of the said Bi∣shop in right of his Bishoprick, were time out of minde used, and ought to grinde all their Corn whatsoever spent in their houses, or exposed to sale in the said City, at the said Mils, of the said Bishop, and no where else, without the licence of the said Bishop, and to pay Toll therefore to the said Bishop, his Successors Bishops, or their Farmors for the time being; and in consideration thereof, the Bishop, his Suc∣cessors, or Farmors for the time being of the said Mils, time out of minde have been used and accustomed at their own charges, from time to time to keep and maintain a Servant expert in grinding, as well by night as day there attending, to grinde their Corn as soon as con∣veniently might be; and the Plaintiff shews that such a Day the Defendant was, and yet is, an Inhabitant, in one ancient Mesuage in the said City, held of the Bishop, and so possessed, intending to deprive the Plaintiff of the profit of his Mill, did such a day grinde divers sorts of Corn in other Mils, without the Bishops leave, to his damage of, &c. The Defendant pleads Non cul. The Jury finde the Defen∣dant guilty for a longer time, then the Plaintiff had interest in the Mill, and gave Damages intire, and upon a Motion in arrest of Judgement adjudged naught.

GResley versus Lother and his Wife Executrix of R. B. and de∣clares * 1.61 that communication was had between the Testator in his life, and the Plaintiff concerning a Marriage to be had and solemni∣zed between one T. B. son and heir apparent of the said R. B. and Jane Daughter of the Plaintiff, and heir apparent of John F. deceased, the said Testator such a Day and Year in consideration that the Plain∣tiff at the special instance and request of the said R. B. then and there would agree that the said T. B. should marry the said J. promi∣sed to pay 20. l. and adjudged a good consideration.

GOwland versus Mason Hill. 17. Jac. rotulo Action of the case for these words, I charge him with Felony for taking of mo∣ney out of the pocket of Henry Sparry, and I will prove it: and the Court was divided in opinion, whether the words would maintain an Action or no.

SMith and his Wife versus Stafford Executor of Stafford, Hill. 15 Jac. rotulo 906. Action of the case brought upon a promise made

to the Woman when she was sole, in consideration the Woman would marry the Testator, he promises that if the Woman should over-live the Testator, that then he would leave her worth 100. l. and they averr that she did marry him, and after the Husband died, and did not leave her worth 100. l. and the Defendant pleads Non assumpsit, and found for the Plaintiff: and it was moved in Arrest of Judgement, that by the Inter-marriage the Promise was drowned, and released. Three Judge•…•…r the Plaintiff, and one for the Defendant.

The like Observations in Actions of Covenant.

DRury versus Allen, & al. Mich. 6. Jac. rotulo 926. Action of Covenant brought against Administrators. The breach was, for not repairing Houses by the Administrators, according to a Covenant made by the Intestate. The Administrators plead divers Judgements given against them in Bar of the Covenant, and that they have not Assetts over.

HAre versus Savill, Trin. 7. Jac. rotulo Action of Covenant * 1.62 brought upon an Indenture, upon a special Covenant to pay Rent at certain Dayes therein specified and reserved. The Defendant pleads that no Rent was behinde. The Plaintiff demurrs to that Plea: and it was held by the whole Court to be a bad Plea in Covenant; for by that Plea the Defendant confesses the Covenant broken, and that Plea tends but in mitigation of Damages.

MOrdant versus Wats, Pasch. 17. Jac. vel 7. Jac. rotulo 1532. Acti∣on of Covenant brought for a Rent-charge granted for the life of an Estranger, and for half a Year after to be paid at the Feasts of the Annunciation of the Virgin Mary, and Saint Michael the Arch∣angel, and alledge that the Estranger died in February, and that the Rent was not paid at the Feast of the Annunciation, and so the Cove∣nant broken: the Defendant demurres, pretending that the Rent was not due untill half a year after the Death of the Estranger, and not at the Feast, but the Court held the contrary. And if the Grantee had died, his Heirs should have had it, during the Life of the Estranger, because it was payable to him, his Heirs and Executors. If I grant an Annuity for Life, and twenty years after, these are two severall * 1.63 Grants, and the Executor shall have it after the Death of Tenant for Life. And Sir Edward Cook said, When an express Covenant is made to pay the Rent at divers Dayes, an Action of Covenant will lie before

all the Dayes of Payment be past; but an Action of Debt will not lie * 1.64 untill all the Dayes be past, and that in such case Debt doth properly lie upon a Grant of an Annuity for life or years, H. 7. Eliz. rotulo 908.

LAm versus Tresham, Hill. 7 Jac. rotulo 2145. The Indentures of * 1.65 Covenant were made between T. Tresham E. Lord Stourton, Me∣riel, T. and the Defendant, and the Lord Stourton and Meriel never sealed the Indenture, and mention thereof was made in the Count, Videlicet, which Lord Stourton and Meriel were parties to the said In∣denture, but never sealed. The Case was Sir T. T. conveyed one Lease to the Lord Stourton, and he to the said Meriel, and by the Indenture brought into the Court, it was covenanted, that the said T. T. M. and L. or one of them at the time of the ensealing and Delivery of the said Indenture, was lawfully possessed of, and in the Mannour of, &c. And covenant that the Defendant, his Executors, and Assignes, might and should quietly have and injoy the said Mannour clearly and abso∣lutely freed and discharged, or otherwise upon request saved harmless from all Incumberances and former Bargains by the said T. S. E. M. and the Defendant or any of them: and the breach was, that the Plaintiff was damnified, for that the said M. that had the State did not seal, and adjudged good.

PYot versus Lord Saint-John, Mich. 7. Jac. rotulo 3214. The Plain∣tiff had the Reversion of two Houses, one in Fee, and the other for years, and makes a Lease for years, with Covenant for Reparations of both Houses, and Question was, whether the Plaintiff should have one Action, or several Actions, and adjudged that he should have a joynt Action for both.

FIsher versus Ameers, Hill. 8. Jac. rotulo 1061. Action of Cove∣nant * 1.66 brought against the first Lessee after he had assigned over his terme for not repairing: and the Question was, if an Action of Cove∣nant would lie against the first Lessee upon a Covenant to repair the Houses, &c. who had assigned his terme to another, whom the Lessor had accepted for his Tenant, and received the Rent, and he suffered the House to be consumed by fire, and if the Covenant by such Ac∣ceptance were gone as Debt, for the Lessor is barred of his Action of Debt for Rent against his first Lessee, after he hath assigned, and the * 1.67 Lessor accepted the Rent of the Assignee. If I covenant, that I, my Executors, Administrators, and Assignes, shall pay the Rent, if I as∣signe over my terme, and the Assignee pay the Rent to the Lessor, yet the Covenant lieth against the first Lessee, otherwise it is where Rent is reserved, and no Covenant to pay it, there, if the Lessor accept the

Rent of the Assignee, the Action will not lie against the Executor of the Lessee, and Judgement after a Demurrer for the Plaintiff, that the Action would well lie.

WAlter versus Decanum & Capitulum Norwici, Trin. 9. Jac. * 1.68 rotulo 1414. Action of Covenant brought upon an express Covenant in a voidable Lease; and the Question was, whether the Covenant be good, the Lease being void; and it was adjudged, Trin. 10. Jac. that the Action would lie, although the Lease were void: and Mapes case was cited, which was, Mapes made a Lease of a Par∣sonage of D. for seven years, and did covenant to save the Lessee harmless against B. the person, &c. in that case it was held, if the per∣son sue the Covenant by right or wrong, an Action lies upon the Covenant: and Sir E. Cook said, that if the Lease were originally void, yet the Action of Covenant would lie; for else a great mischief might happen; for a Dean might as to day make a Lease to one, and keep it secret, and to morrow make another, and covenant to injoy it, and so avoid the second Lessee. If a Lease be good at the beginning, and become void after, their terminus, is the number of years, other∣wise, where it was void at the first, if a Dean and Chapter make a Lease contrary to the Statute, and reserve a Rent, it shall not be void against them, so long as the Dean liveth, but against his Successor. The Lease in question was not void, but voidable. A Covenant in Law shall go to lawfull eviction, although the Lease be void. A Covenant real to Warrant and Defend, there must be a Title paramount, and a lawfull eviction. Covenants for Lessees shall be taken beneficially for the Lessees.

BRight versus Cowper, Trin. 9. Jac. rotulo 638. Action of Cove∣nant * 1.69 brought upon a Covenant made by the Merchant with a Ma∣ster of a Ship, Videlicet, that if he would bring his Fraight to such a Port, then he would pay him such a summ, and shews, that part of the Goods were taken away by Pirats, and that the residue of the Goods were brought to the place appointed, and there unladed, and that the Merchant hath not paid, and so the Covenant broken: and the Que∣stion was, whether the Merchant should pay the Money agreed for, since all the Merchandises were not brought to the place appointed: and the Court was of opinion, that he ought not to pay the Money, because the agreement was not by him performed.

CRockhay versus Woodward, Hill. 15. Jac. rotulo 2001. An Action of Covenant brought upon this Writing, Videlicet, Memorandum that * 1.70 I John Woodward do promise and assume unto B. C. to pay to him such Moneys, or other Goods, as Josias my son shall imbessell, mispend,

or wrongfully detain of his, during the time of his being Apprentice with him within three Moneths next after request to me in that be∣half made, and due proof made of such imbesselling, or wrongfull detaining, in witness, &c. and the Plaintiff shews that the Defen∣dants son did imbessell Goods of his Masters, and shewed what Goods, and left out in his Declaration these words, Videlicet, and due proof likewise made of such imbesselling or wrongfull detaining. The Defendant demands Oyer of the Writing, and pleads that he did not imbessell; and it was tried for the Plaintiff, and after Triall Ex∣ception taken, because the Plaintiff did not alleadge any proof made, and for that reason Judgement was arrested.

BRagg Assignee of Bragg, versus Wiseman, Executor of Fitch, Mich. * 1.71 12. Jac. rotulo 538. Action of Covenant brought, and the case was this, that Fitch and his Lady were seised of Land in right of his Wife for terme of her life, and joyn together in a Lease by Deed in∣dented, in which were these words, demise, and grant, and after∣wards Fitch dieth, the Lady enters, and avoids the Lease, and maketh a new Lease to a stranger, whereupon an Electione firme is brought against the first Lessee, and Judgement thereupon, and the first Lessee put out of Possession: whereupon the first Lessee brings his Action of Covenant against the Executors of Fitch, upon the words, demise and grant. The Defendant demurrs. The words were, have demised, granted, and to farm letten for years, if the Wife should so long live; and Judgement for the Difendant. A Covenant in Law shall not be extended to make one do more then he can, which was to warrant it as long as he lived, and no longer. The Law doth not binde a man to an inconvenience. If Tenant for Life make a Lease for twenty years, and covenant that the Defendant shall injoy it during the terme, that shall be during his Life, for the terme endeth by his Death; but o∣therwise it is, if the Covenant be during the terme of twenty years, by the word, Demise, an Action of Covenant lieth, although he ne∣ver enter, and this word Demise implieth as much as Dedi & concessi. An Action of Covenant brought, for that the Defendant covenants to bring again a Ship, Perils and Damages of Sea onely excepted, and he to excuse himself, saith, that the Hollander in a warlike manner by force and armes took the Ship: and much doubt was where the Issue should be tried; and the opinion of the Court was, that the Action should be tried where it was laid.

COwling versus Drury. Action of Covenant brought, for that the Defendant did not pay a Rent with which the Land was charged; the Defendant replies, he was to injoy the Land sufficiently saved harmless, and answers not the Breach, and adjudged a naughty Bar by the whole Court.

SElby versus Chute, Trin. 11. Jac. rotulo 3804. Action of Cove∣nant * 1.72 brought, and the Breach was alleadged, that the Plaintiff should quietly injoy the Land demised to him, and he shews that Chute exhibited a Bill in Chancery against him, pretending the Lease was made in trust, and it was decreed to be otherwise: and whether the exhibiting this Bill was a Breach of Covenant, there being no Di∣sturbance at Common Law, was the Question: and the Court were of opinion, that it was no Breach of Covenant, for it was no Distur∣bance at Common Law, nor Entry; and the Law could not take no∣tice of it: and Judgement for the Defendant.

HOlder versus Tailor, Pasch. 11. Jac. rotulo 1358. An Action of * 1.73 Covenant brought upon this Covenant, that the Lessee should repair the House, provided alwayes, and it was agreed that the Les∣see should have such necessary Timber to be allowed and delivered by the Lessor: and the Breach was, that the House wanted Repara∣tions, and that so many Loads of Timber were necessary, and that the Lessor allowed them according to the form and effect of the Inden∣ture; and a general Request laid, and Exception was taken to the De∣claration, for that the Plaintiff did not alleadge a special request to the Defendant: and that it was laid in the Declaration, that a stran∣ger brought the Timber, which was held to be naught by the whole Court, for it amounted to an Entry upon the Lessees Possession.

Exception taken to a Breach laid in Covenant for Repairs, because it was generally alleadged, and not shewed in what, but being after a Verdict it was helped by the opinion of the whole Court.

TIsdale versus Essex, Trin. 12. Jac. rotulo 2131. Action of Cove∣nant * 1.74 brought upon these words, covenant, promise, and agree, that the Lessee should quietly occupy and injoy the Lands demised, for and during the terme of seven years: and the Plaintiff shews that an Estranger entred upon the Land, and shews not that he en∣tred by Title; and the Court was of opinion that it was naught, be∣cause it did not appear that he had a good Title to enter, Dedit & con∣cessit, imply a Warranty for Life; and Judgement was given for the Defendant, because the Breach was naught.

HIcks versus Action of Covenant brought, and the Land alleadged to be in Weston, alias, Weston Ʋnderwood, and the Venn was de visu de VVeston Ʋnderwood, and it was alleadged by the Defendant, that the Venn was mis-awarded; because it was not of VVeston onely, but the Court was of a contrary opinion, that it was well awarded, and Judgement for the Plaintiff.

CAstilion & al. versus Smith, Exec. Smith, Trin. 17. Jac. rotulo 1849. Action of Covenant brought against the Defendant, and the breach of Covenant alleadged to be in the time of the Executor: and the Judgement was entred of the Goods of the Testators: the Breach was for plowing of Land contrary to Covenant.

RIdent versus Took, Hill. 13. Jac. rotulo 3516. Action of Cove∣nant brought to discharge the Plaintiff of a single Bill, in which he was bound for the Debt of the Defendant, and he alleadges for Breach non-payment, and a Suit and recovery at Law for the Money which remained in force. The Defendant pleaded, that he paid the Money at the Day, and thereof gave the Plaintiff notice, before the purchasing his Writ, the Plaintiff demurs; and the Court held the Plea naught, and Judgement for the Plaintiff.

Actions upon Account.

WIlloughby against Small. An Action of Account brought * 1.75 against the Defendant, as Receiver of the Plaintiffs Mo∣ney. The Defendant pleads, that he never was Receiver, where he hath a Release from the Plaintiff, whereby he shall lose the benefit of his Release, for that he cannot give that in Evidence upon such Issue.

The Process herein is Summons Pone & Distress, and upon a Ni∣chil returned upon the Summons pone, or Distress, the Outlary lies, the Process is returnable from fifteen Dayes to 15 Dayes, & an Essoin lies.

In this Action there are two Judgements, the first Judgement is, that the Defendant shall account, because he hath not accounted be∣fore in this first Judgement, the Plaintiff shall not recover Costs or Damages, but a Capias ad computand. shall issue, and if a Non est in∣ventus shall be returned thereupon, then an Exigent: and when the Defendant by the rigor of the Law is imprisoned, yet the Court doth in favour of the Defendant take Bail, for he shall account before Auditors, which the Court shall appoint, which shall be the Officers of the Court to audit the Account; and he shall appear from day to day before the Auditors at every day and place assigned by the Audi∣tors, untill the Account shall be determined; and before the Audi∣tors the Plaintiff or Defendant may joyn Issue or demurr upon the Plea pleaded before the Auditors, and if any of the parties shall make Default, and shall not appear, then if after Appearance the

Defendant shall not plead, or if he shall joyn Issue, or joyn in a Demurrer, the Auditors shall certifie that to the Court, and the Court shall proceed to the matter certified by triall of the Issue, if it be joyned, or by arguing the Demurrer as the cause shall require: and if the Plaintiff shall make Default, or shall not prosecute, or if the Defendant shall not answer, they may commit him to the Fleet; and if Verdict pass for the Plaintiff Costs and Damages shall be recovered, by reason of the inter-pleadings; and the Plaintiff shall recover his Goods or Moneys demanded, with his Costs and Damages; and a Fisa, or Elegit or casa, shall be awarded, and if a Non est inven∣tus be returned, then an Outlary after Judgement.

An account against a Bailiff of Lands shall be brought in the * 1.76 County where the Lands lie.

In every case in account where an Attachment may be returned, an Essoyn lies.

Where the Defendant is charged to account for Moneys received * 1.77 from the hands of the Plaintiff, the Defendant may wage his Law, and likewise for Goods delivered to be sold, but it is otherwise where the Receit is by the hands of a Testator, or of any other then the Plaintiff.

That after a year and a day after Judgement given, every Action * 1.78 shall be revived by Scire facias, which is given by the Statute; for all Actions at Law, if the Plaintiff shall not obtain his Execution within a year and a day, he shall be driven to bring a new Action.

Or if a Defendant be charged as Receiver by Indenture, he shall not be admitted to plead, that he was not a Receiver.

If the Plaintiff die before the second Judgement, the Writ shall a∣bate, * 1.79 and no Scire facias lies for the Executor, if the Defendant die before the second Judgement.

If two be adjudged to account, and a Ca. & exfa. issue, and one appear, and the other be outlawed, he that appears shall account alone, for that the Plaintiffs Process is determined against the other: and so if one die, the other shall account alone; and if one be ad∣judged to account, and will not, he shall be committed to the Fleet.

That if I deliver Goods to one, to the value of 100. l. to traffique * 1.80 with for my use, and he sels them for 10. l. I have no remedy, but if my Bailiff buy a thing for 10. l. which is not worth it, he shall not be allowed it.

Account lies not before a Sheriff, for that he can assigne no Audi∣tors. * 1.81

If two be joyntly possest of Goods, one of the two deliver the Goods for Merchandise, he onely shall bring the Action.

An Account lies not against an Executor or Infant. * 1.82

An Account lies not for a Park of Deer.

Matter that is in discharge of an Account shall not be pleaded in * 1.83 Barr of the Action, for the Judges are Judges of the Action, and not of the Account.

If Money be delivered to render an Account, (an Account lies) but if it was delivered to keep untill the Plaintiff shall require; Account doth not lie, but Detinue.

If the Plaintiff account upon Witness of the Receit, the Defendant * 1.84 shall not wage his Law.

If an Account shall be brought for Goods, in the Declaration the * 1.85 Plaintiff declares, that they were in his house, whereas indeed they were not, it is good.

HArrington versus Dean, Hill. 10. Jac. rotulo 3230. Action of Ac∣count * 1.86 render brought against the Defendant for the Receit of Money by the hands of one Rotheram for 200. l. The Defendant pleads that he was not a Receiver for to render an Account: the Jury finde it specially that Rotheram was indebted to the Plaintiff in 200. l. and the Plaintiff required the Defendant to receive the said 200. l. and the Defendant required Rotheram to pay the 200. l. and Rotheram upon Request to him made, desires the Defendant to borrow of any person 200. l. and to pay the Plaintiff, and finde that the Defendant did borrow 200. l. of one Stanhop to pay the Plaintiff; and Rotheram became bound to Stanhop for the payment of the said 200. l. and that the Defendant appointed his Wife, to pay the Money to the Plaintiff; and if upon the whole matter, &c. and Judgement was given, that the Defendant was a Receiver.

THe Earle of Cumberland against Hilton. The Clerk that entred * 1.87 the Cause had omitted the Charge which was for 400. l. and it was omitted in the Roll, and Nisi prius: and after a Verdict, Excep∣on taken, and amended by the Court.

Assise.

IN an Assise Trin. 29. Jacobi, rotulo 27. brought against Thacker * 1.88 and Elmer: the Defendants come and say, that there was no Te∣nants of the Tenements put to the view of the Recognisors of the Assise aforesaid, nor at the time of purchasing the Writ, to wit, such a Day, nor any time after; and this they were ready to verifie,

and pray Judgement; and if so, then they say, that they have done no injury or Disseisin of the Tenements with the appurtenances to the said W. T. and put themselves upon the Assise; and the said W. T. doth so likewise, therefore the Assise was taken between them; and thereupon the Recognisors of the Assise say, that the said E. E. at the purchasing of the original Writ of the Assise, Videlicet, such a Day were Tenants of the Tenement aforefaid, with the appurte∣nances, as of his Free-hold; and that the said W. T. was seised of the Te∣nements aforesaid, with the appurtenances in his Demesne, as of Fee untill the said E. did unjustly, and without judgement disseise the said VV. but not by force and armes; and assess Damages to 12. d. and for Costs 6. d. and Judgement given that the said VV. should re∣cover his Seisin of the Tenements aforesaid against the said E. by the view of the Recognisors of the Assise, and his Damages, &c.

An Assise brought, and the Grant was of the Herbage and Pan∣nage, * 1.89 &c. and whether this were good or no: some held it void, for the incertainty of the Grant, when it should begin; Sir Edward Cook held the Grant good; for if the King make a Lease for Life, and granteth the Land without reciting the state to one for life, this is a good Grant for Life of the Reversion, to begin immediately after the Death of the Tenant for Life.

Trin. 7. Jacobi, rotulo 35. An Assise brought for the Office of a * 1.90 Harald, at the Funeral of the Earle of Exceter; and the great Question was, where the view should be made; and it was alledged, that it should be made in the place where he exercised his Office, but the Court doubted of that; but they were examined of the view made in the Abbey of Westminster, being the place where the Funeral was performed; and the Court were of opinion, that in Dower, where Tithes are demanded, no view lies, for of things that are invi∣sible, no view lies, but the Tenant in such case shall be denied it.

SIr William Saint Andrew brought an Assise de Darrein Presentment, * 1.91 against the Arch-bishop of York, the Countess of Shrewsbury, and F. H. for the Church, of O. in the County of Nott. The Arch∣bio p and H. appeared, and the Countess did not appear; and though the Countess made Default, yet the Assise was not taken a∣gainst her by Default, but a re-summons was awarded against the Countess, and the same Day given to the Arch-bishop, and H. and a Habeas Corpora against the Recognisors. And note, the Tenants that appeared pleaded in abatement, that a Writ of Quare impedit, for the said Church was hanging in such a Court between the same par∣ties, and the Assise was brought afterwards: and with this agrees the Register; and it was adjudged a good Plea. The Writ was returned in this manner, Pleg. de prosequend. John Doo, Richard Roo. The within

named Arch-bishop and Countess are attached, and either of them is attached, per Pleg. H. S. N. J. And the within named H. hath no∣thing in the Sheriffs Bailywick, by which he may be attached, nor hath a Baily within his Liberty, nor is therein found: and the residue of the Execution, &c. and Judgement given, that the Writ should abate: and the like was in the Earle of Bedfords case, where two Quare impedits were brought one after another, and the last Writ abated.

J. Lovelace versus Baronissam Despencer, & R. Harvey Clericum, * 1.92 Trin. 12. Jac. rotulo 74. de Darrien Presentment for the Church of M. And the said H. being solemnly exacted came not: and the Sheriff made a Return, that he was summoned by J. O. and W. C. and therefore the Assise was to be taken against him by Default, but the said Baromsh. by T. her Attourney, faith the Assise ought not to be so taken, and confesses the said J. was the person last presented, but conveys a Title to her self of the Mannour: to which the pre∣sentation belongs, and that being so seised, the Plaintiff in the Assise by usurpation presents the Clerk in the Count, whereupon the De∣fendant brought a Quare impedit, and hanging the Writ, the Clerk in the Count dies, and the Plaintiff presented the Clerk that made Default, who by vertue of that presentation is yet Parson of the said Church, by which she is seised of the Advowson, as in her former Estate; and so she saith, that the Presentation of the said J. by the said L. made, ought not to prejudice her: and a Demurrer upon this Plea; and that the Assise should remain to be taken, &c. for want of Recognisors; and the Sheriff was commanded to distrain them, &c. and Judgement given, that the Plea was good: but quaere of the * 1.93 Declaration, whether sufficient, because it was not alleadged, that he that presented was seised of the Advowson.

Pasch. 8. Jac. rotulo 31. An Assise brought for the Office of Clock-keeper of, and it was held, that it must be an ancient Office, and be∣cause they could not prove that it was an ancient Office, the Plaintiff was non-suit, and the Plaintiff shewed a Grant of the same in E. 6. time, but that was held no ancient time.

Pasch. 6. Jacobi. It was held by the whole Court, that an Assise of * 1.94 Sadler to the Queen would not lie, being granted to one by the King, but was held void by the whole Court, for the King cannot make an Officer to the Queen, and by the Patent no place was ex∣pressed where he should injoy and exercise his Office, and take the Profits, and therefore the Jury could not have the view; and for that cause an Assise cannot be taken: and if the King should grant the Office of Usher to his Son the Prince, an Assise would not lie.

An Assise brought against Demetrius, the Plaintiff was non-suit;

and Demetrius moved to have Cost, and it was denied by the whole * 1.95 Court, because an Assise is not within the words of the Statute.

Audita Quaerela.

BIrd versus Kirton, Trin. 13. Jacobi, rotulo 3118. An Audita Quaerela brought, and the case was this, Bird and Milles were bound to Kirton, and Kirton makes a Bond to Milles in the summ of 100. l. that if Milles be not sued upon the first Bond, then that shall be void; and it was alleadged, that Kirton did both sue Milles and Bird, and that he had no notice of the second Bond, that he might have pleaded it, and so pretends that the second Bond should be a Defeasance of the first; and Judgement was given for the Defendant.

BEck brought an Audita Quaerela, and surmises the matter follow∣ing, * 1.96 that Boon Administrator of C. brought his Action of Debt upon an Obligation, and before Judgement, that Administration was revoked, and Administration granted to another, and notwithstanding the Revocation, he procured Judgement, and the second Administra∣tor released, and the rest brought an Audita Quaerela upon that Re∣lease, and the Court would not grant a Supersedeas, because the Re∣vocation was but matter in fait, for that Revocation was not under Seal; and the first Administrator might appeal.

Cases in Law, and Notes.

IF a Writ of Covenant be brought against two, and if one ac∣knowledge * 1.97 the Fine before one of the Justices, and the other ac∣knowledge by Dedimus, or before another Justice, that Fine can∣not be proceeded upon these two acknowledgements by the opinion * 1.98 of the Court.

A Writ of Covenant was brought against three men, and their Wives, and onely two men and their Wives acknowledged the Fine, and the other Husband and Wife never acknowledged, and the Fine was sued, as a Fine acknowledged by all, and it was desired the Fine

might be amended, and the Man and Wife that did not acknowledge might be put out, but the Court would not grant it.

If I make a Lease for years, reserving Rent, during the Life of A. * 1.99 and B. if one of them die, the Rent is gone. If I make a Lease for Life, reserving a Rent to me and my Executor, neither the Executor nor the Heir shall have the Rent, Justice Walmsley held this difference in making a Lease to two, during their Lives, if one die, the other shall have it; otherwise it is if it be made to one during the Life of two, and one of them die, in this case the Lease is ended: and there is difference between a reservation of Rent and Lease, for Reser∣vation is according to the will and pleasure of the Lessor; and Justice Walmsley said, if a Lessee for years granteth a Rent to A. during the Life of B. and C. this Reservation is good, although one should die, which Sir Edward Cook denied: and Judgement was given for the Plaintiff, in Hills case.

If I make a Lease for years, reserving a Rent, and then I grant, de∣mise, and to farm let, Reversionem domus, for years, and the Rent, to * 1.100 have and to hold the Reversion, and the Rent from a time past, if the Lessee cannot get an Attornement, yet it is a good Lease in Re∣version, and shall take effect after the end of the first Lease habendum terram & habendum reversionem est terra revertens, and no diffe∣rence.

If the Husband with his own money purchaseth for his Wives * 1.101 Joynture, Land to them and the Heirs of their two Bodies, the Re∣mainder in Fee to the Wife, and they have Issue two Sons, and the Husband dieth, and the Wife suffereth a Recovery to the use of the youngest Son, the eldest Son notwithstanding shall have the Land, by the Statute of Joyntures.

Hill. 6. Jac. If I set-out my Corn, and after take it away, the Par∣son * 1.102 may sue me in the Spiritual Court, or bring an Action of Trespass against me: but if the Parson sue in the Spiritual Court a stranger for taking away the Tithes which were set out, this is a Praemunire in the Parson.

Tenant at will shall pay his Rent when he holdeth over his terme, * 1.103 but Tenant at sufferance shall not pay any Rent, if a man hold over his terme, and pay his old Rent, he shall be accounted Tenant at will.

For one joynt Debt, for one Contract, you cannot plead Nil debet, * 1.104 for part, and demur for the rest; for he pleads Nil debet, and the matter in Law is reserved.

Licet saepius requisit, is a sufficient Request upon a Bond, because it is a Debt.

Unto an Action brought against a man upon a Bond, pleads Denis * 1.105 age: the case was this, that when the Obligation was sealed and deli∣vered,

the Defendant was of full age, but at the time when the Bond bore Date, he was under age; and at the Assises the Judge there ru∣led, that at the time of making the Bond, was when the Bond was sealed, and not when it bore Date.

The Court were of opinion, that where a Bishop holds Land dis∣charged * 1.106 of Tithes, and he makes a Feofment of the Land, the Feoffee shall be discharged of Tithes; and the like, if the King hath an∣cient Forest-land discharged of Tithes, and the King grants this Land, the Grantee is discharged of Tithes; and it is a general Rule, that he which may have Tithes, may be discharged of Tithes.

If I let Land for years, reserving Rent, if I command one to put his * 1.107 Cattle into the Land, I cannot distrain them, for my commandement is a wrong, and an Action of case will lie against the commandor.

If I make a Lease, and bid the Tenants cut down the Trees, yet I may have an Action of waste against my Lessee. In Sir Cheydens case, the commandment to take Possession was void, unless he had commanded him to expell the Tenant, and then he might joyn either to distrain, or bring an Action of Debt, for the Lease was made by him and two more.

28 H. 8. If I make a Lease to the Husband and Wife, covenant to * 1.108 do no waste, or repair Houses, and the Husband dieth, and the Wife surviveth, and holdeth in, if the Wife commit waste, or not repair the House, no Action lieth against the Wife; but to such a Lease the Wife is tied to pay the Rent, or to perform a condition made by the part of the Lessor, but not observe or perform Covenants of the Lessee.

Pasch. 10. Jacobi. The Court much doubted, whether one that had * 1.109 a Park, and was used to pay one Shoulder of Deer for all manner of Tithes, and the Park is dis-parked, should now pay Tithes in kinde or not.

For Wooll and Lamb, no Action upon the Statute for not setting * 1.110 out of Tithes, for they are no predial Tithes: and no Action lies up∣on this Statute for small Tithes.

An Administration granted durand. minori aetate execut. is not with∣in * 1.111 the Statute of 21 H. 8. And by the Civil Law the Judge may after Administration by him granted, revoke it, and grant it to another. And if an Administration be granted to a Feme Covert, yet she shall sue in their Court as a Feme sole. One Briefly married an Admi∣nistratrix, and entred into Bonds for the Intestates Debts; and after∣wards the Wife leaveth her Husband, and refuseth the Administra∣tion, and it was granted to another, and now B. prayeth a Prohibi∣tion, for that he may be sued for Debts, and denied by the Court, un∣till he be sued. This Administration was first granted by Doctor B. and after by him revoked, and a new granted by him to the Wives

Brother, and afterwards he revoked that, and established the first Administration and the Appeal.

A Feofment in Fee by Deed indented, Rent reserved, it is good; but without Deed cannot reserve Rent.

If Land be devised by three, upon condition to pay them 100. l. * 1.112 equally to be divided, and one of them dieth, his Executor, or Ad∣ministrator shall have the Money: and so it is, if one were bound to pay Money.

The Commissary granted Administration of the Intestates Goods * 1.113 to the Wife, and did make a Divident of his Estate to some of the rest of his Kindred: and this was-held not to be warranted by Law, and more then the Ordinary could do; because the Administratrix is chargeable to pay all Debts and Promises of the Intestate, and to bring up his Children, which she cannot do, if the Goods be taken away; Ʋbi delinquit ibi punietur.

If a Copy-holder of Inheritance accept a Lease for years of his Copy-hold, the Copy-hold is gone by the opinion of the whole Court.

If a Legacy be granted of Land, this shall not be sued for in the * 1.114 Spiritual Court; but if one by Will devise Land to be sold for pay∣ment of Legacies, this shall be sued for in the Spiritual Court by the opinion of the whole Court.

If two Fulling-mils be under one Roof, and a rate-tithe paid for * 1.115 the Mils, and after you alter these Mils, and make one a Corn-mill, your Rate is gone, and you must pay Tithes in kinde; or if you have but one pair of Stones in your Mill, and pay a Rate for them, then if you put on another pair of Stones, new Tithes must be paid in kinde.

If one in Fee make a Lease for Life, and after granteth a Rent-charge, if the Grantors Cattle come upon the Ground, I may distrain * 1.116 them, although I cannot distrain the Tenant in Possession, but the Grantor cannot avoid it. If the condition of a Bond be to discharge a Messuage of all Incumberances, then one may plead generally, that he did discharge it of all Incumberances; but if it be to discharge it of such a Lease, then I must shew how.

If a man devise his Trees to his Executors to pay his Debts, the Executor must in convenient time cut down the Wood. And so if a * 1.117 man sell his Trees, the Vendee must sell them in a convenient time.

If I grant you out of my Mannour, 10. l. per ann. and recite but five pounds, the Recitall shall not diminish the Grant. And so if I grant * 1.118 you ten pounds out of my Mannor, and recite 20. l. this shall not in∣large it.

If I infeoff two of Land, habendum to me in Fee, and habendum to the other in Fee, they are Tenants in common.

In the Court of Wards, one Dymack was a Purchasor by Bargain * 1.119 and Sale, and before inrolment D. dies, and after his Death the In∣denture was inrolled; the Question was, whether his Son shall be in Ward for the Land; and it was adjudged, that he is Heir to the Land, and is in by the Statute of 27 Eliz. of Bargains and Sales, and not by the Statute of Uses.

My Lord Hobard held, that if an Executor pay a Bond made upon * 1.120 a usurious Contract, it shall be a Devastavit in the Executor: and if he be bound to present one to a Church, and he present one upon a Simonaical Contract, the Bond is broken.

Hill. 10. Jac. Resolved, if one make a Lease of a Mannour, reser∣ving Rent, and afterwards the Lessor grants the Reversion of forty acres thereof; now if an Action of Debt be brought by the Grantee, he may aver the rate of the Acre: and if the Defendant plead Nil debet per patriam, the Jury shall rate the value, and although the va∣lue be found less by the Jury then the Plaintiff surmiseth, yet the Plaintiff shall recover after the proportion.

For Acts in Law no Attornement is necessary: as if a Lease made * 1.121 for years, reserving a Rent, which is assigned to a Woman for Dower, she shall have the Rent without Attornement. In Cambels case upon an Elegit returned, that the Lessor was seised in Fee, and that by ver∣tue of the Judgement the moity was delivered to the Plaintiff; and for the Rent reserved upon the Lease for years before Judgement.

If a man top a Tree under the growth of 21. years, and suffer the * 1.122 body to grow; and afterwards when the boughes are grown out again, he doth lop and top it again, I shall pay no Tithes, although the Tree was not priviledged at the first cutting, by the opinion of the whole Court.

If a Debt be recovered in a Court of Record, that Debt cannot be * 1.123 assigned over to any man by the opinion of the whole Court, Mich. 10. Jac.

Pasch. 14. If Money be to be paid, upon proof made, there the triall * 1.124 shall be the proof to be made before: but if it be to pay Money within 3. Moneths after proof, there proof must be made first: but if it be up∣on proof before A. then proof being made before A. this exten∣ding proof shall tie the party: but Warburton held the contrary, and he resembled this to a surmise to have a prohibition, which is no binding proof, for the Jury may pass against the proof in the surmise: when a Bond is to pay Money upon proof, this is a legal proof by Law, if it be laid generally to be paid by proof; if it were by proof before two Justices, or two Aldermen, this shall be intended a suffi∣cient proof, when the Action shall be brought upon the Bond, and if the Defendant say, that due proof was not made, then they shall say, that before the two Justices, &c. it was proved by testimony before

them, and then the Judges shall judge whether it be a sufficient proof or not.

If I devise Lands to my Executors for three years, for the payment of my Debts, this is Assetts in the Executors hands; but if I devise * 1.125 my Land to be sold for the payment of my Debts, it is no Assets be∣fore it be sold.

Mich. 9. Jacobi. It was held in the Common Pleas by the whole Court, that in the Kings case, the consideration of the Money paid, is * 1.126 never to be proved. Likewise in a common case of Bargain and Sale in consideration of Money paid, where in truth none was paid, yet it is good, and the Bargainee is not tied to prove the Payment, for the Bargainer may have an Action of Debt.

If a Legacy be granted out of Leases, and a Suit in the Spiritual * 1.127 Court, for this shall not be prohibited, but otherwise it is, if it were out of Fee Simple Lands.

HEle versus Frettenden. Resolution upon two Cases upon the Sta∣tute * 1.128 of E. 6. for not setting forth of Tithes, Videlicet, A man possessed of Corn sels it, and before two Witnesses sets out his Tithes, and afterwards privately takes away his Tithes: and the Parson sues him upon the Statute of treble Damages, for not setting forth of Tithes: and the Defendant proves by Witnesses, that he set forth his Tithes, yet this Fraud is helped, for the words are without fraud or deceit. In the second case, one secretly sels his Corn to one who was not known, and afterwards the Vendee commands the Vendor to cut the Corn, which he doth, and takes away the whole Corn without setting forth his Tithes; and the Question was, who should be sued for the Tithes: and the Court held the first Vendor should be sued, for it was fraudulent.

If a man be found guilty of Felony, and after receives his Pardon, * 1.129 he shall not be Legalis home, to pass upon a Jury.

If a Venire facias be against an Arch-bishop, the Venire facias shall be Tam milites quam alios liberos, &c. because he is a Lord of the Par∣liament. * 1.130

If a man be obliged in a Statute staple, his Copy-hold Land is not extendable, but it is upon a Statute of Bankrupt.

If a man have Common in three Acres, and purchase one of the three Acres, his Common is extinct.

If a man of the Cinque Ports shall come to London, he may be there arrested, and shall not have the Priviledge of the Cinque Ports.

Difference between those things which are in the Prender, and such things that are in the Render; for if I take not such things as are in Prender according to my Prescription, it is void. If I have Esto∣vers

in Woods to be taken every other year; if I omit to take them every other year, I cannot take them in the third year. But for Rent, and such other things that are in the Render, I ought to have it when ever I demand it, as it best pleases me. And note, that in such * 1.131 case one prescribed for eight Loads of Wood to be cut and taken, as appertaining to a Messuage, which was held naught by the whole Court, for the Prescription should be laid for Estovers to be imployed upon Repairs of the said Messuage, or to be spent in it: for a man cannot prescribe to have a Prescription to come and cut down my Wood, which is as much as I that have the Free-hold can do. For the claim to take and sell my Wood cannot be good. And the Court held it a good Prescription, to prescribe to have Common every other year, although you shew not the Commencement, as to shew what time of the year when it begins. If a man hath Common of Pasture, in divers Closes and parcels of Ground, where he hath some Land of his own, there, and in all other cases where one is to prescribe, he need not to make his Title to every peice, but to say, he hath Common in loco in quo, &c. int. alia, and need not to speak of the rest of the Land in the residue of the Feild, because he hath Land of his own. Common appendant belongeth to arrable Land, not to Pasture Land.

If two Issues be joyned, and in the awarding the Venire facias, * 1.132 these words, Videlicet, Quoad triandum tam exit istum quam praedi∣ctum alium exit superius junct.) were omitted, and after a Verdict such Default was moved in Arrest of Judgement; and the Exception over-ruled, and held good, notwithstanding that omission.

The whole Court were of opinion, that local things shall not be made transitory, by laying the Action in a forrain Shire, as for Corn growing in one Shire, and an Action of Trover brought in ano∣ther.

COmes Cumbr. versus Comitem Dorset. It was moved by the Defen∣dant, * 1.133 that whereas the Plaintiff had prosecuted a Distring. Jur. and onely eleven of the Jury appeared, and the Inquest remained to be taken for want of Jurors: and that at such time neither Plaintiff nor Defendant desired a Tales; and afterwards the Defendant in an∣other Terme prayed a Tales of that Writ which the Plaintiff had prosecuted, and the Court denied to grant it, because he prayed not a Tales when the Distress was retorned; and if he would have a Tales, he must purchase anew, a Plur. distring. and if then the Jury fill not, the Defendant may pray a Tales, and the Court ought to grant it. And note, upon the first Habeas Corpus the Defendant shall not have a Tales, but in Default of the Plaintiff.

IF the Chamberlain of the County Palatine of Chester make an in∣sufficient * 1.134 Return to the Court of Common Pleas, upon a Writ is∣sued out of that Court; the Sheriff shall be amerced, because the Sheriff is the Officer responsible to the Court.

The King hath power to make and create a Leet anew, where none was before. A Distress is incident of Right, but in a Court Baron a Prescription must be laid to distrain.

J. Rogers versus Powell. My Lord Cook held that the Surrender of a Copy-hold in Tail is not any Discontinuance: and Justice Foster of the same opinion.

In Doctor Husseys case in a Ravishment de gard, wherein the Judge∣ment is penal, the Habeas Corpus was denied by the Court to be a∣mended, being a blank Writ after a Verdict, but was adjudged Error. For the Proviso in the Statute of Jeofailes, 18 Eliz. excepts Actions upon penal Statutes.

One Jury was impannelled of the Town of Southampton, and cal∣led * 1.135 to the Bar, and made Default; and the men of that Town shewed to the Court a Grant made to the Inhabitants of that Town, that no Return should be made of the men of that Town to be of any Jury, and prayed the Allowance of their Charter, and the Court appointed them to plead their Charter, and it was done accordingly.

TRier versus Littleton. A special Verdict was found, whether Fraud or not Fraud; and the Jury did not finde the Fraud expres∣ly, * 1.136 but they found Circumstances that the Deed might seem thereby to be fraudulent; but the Court will not adjudge it Fraud, where the Jury do not expresly finde the Fraud; for the Judges have nothing to do with matter of Fact; and so by the whole Court no Fraud.

Tenant for Life, Remainder for Life, Remainder in Tail, Remainder in Fee, the first Tenant for Life suffereth a Recovery, the Remainder in * 1.137 Tail is barred, although the second Estate for Life be no party. Baron & Feme seised of the Wives Land for Life of the Wife, Remainder to the Husband and Wife in Tail, and afterwards the Husband doth bar∣gain and sell the Land by Deed inrolled, and a Precipe is brought a∣gainst the Bargainee, and he voucheth them in Remainder: this is a good Recovery to barr the Estate Tail.

If an Information be brought against three upon the Statute of * 1.138 Maintenance, and two of them appear, and the third doth not ap∣pear, the Plaintiff may declare against the two that do appear, before the other appears, for it is but a Trespass and Contempt, as in Trespass and Conspiracy; but it is otherwise in Debt upon a joynt Contract, for there the Plaintiff cannot declare against one untill the Process be determined against the other by the opinion of the whole Court.

If Judgement be entred in Trespass of Oct. Hillarii, the Writ to in∣quire * 1.139 of Damages may bear teste of any other Return of that Terme, besides of Octab. Hillarii, for the Terme is as one Day, and so hath been adjudged upon a Writ of Error in the upper Bench; but it is otherwise held in the Common Pleas.

If a Bargain and Sale be void in part, it is void in all.

If an Officer or priviledged person of the Court of Common Pleas, sue another priviledged man of any other Court whatsoever, yet he of the Common Pleas that first sued, shall force the other priviledged per∣son to answer in the Common Pleas; but if a priviledged man be sued with another as Executor, no Priviledge lies. Summons and Severance lies between Executors, Plaintiffs; and if one of the Executors be outlawed or excommunicated, he may be demanded, and if he comes not, shall be severed by an award without Process, after he hath ap∣peared, and the other shall proceed without him; but if he had not appeared, then Summons, and Severance shall issue out against him.

FLetcher versus Robson. An Extent upon a Statute Merchant issued * 1.140 out against Robson the Cognisor, and the Sheriff returned, that the Cognisor was possessed of divers Goods, and seised of Lands, which he delivered to the Cognisee, and that the Cognisee ac∣cepted of the Land; and because the Sheriff did not return, that he had not any other Lands, Goods, or Chattels, it was adjudged in∣sufficient, and a new Writ awarded; but many held, that in the case of a Cognisor it was well enough, but not in the case of a Purchasor. If one knowledge a Statute, and after a Judgement is had against the Cognisor, now against the Cognisor the Statute shall be preferred, * 1.141 but not against an Executor. If a man plead a Bond, knowledged to the King in the Exchequer, it must be averred to be a true Debt. If a Debt be assigned to the King, in this case no priority of Execution. If one staul a Debt by 20. s. a year, this shall not stay my Exe∣cution: the Court were of opinion, that an Extent would not be good at Barwick, for the Writ runs not there.

If a Judgement be given in a Court of Record, it shall be preferred * 1.142 in case of an Executor before a Statute: But if a man acknowledge a Statute, and afterwards confess a Judgement; and if the Land be ex∣tended upon the Judgement, the Cognisee shall have a Scire facias, to avoid the Extent upon the Judgement, otherwise in case of Goods, for therein first come first served: for if I have a Judgement against one, and afterwards he acknowledgeth a Statute, and by vertue of the Statute the Goods of him (being dead) were taken in the Execu∣tors hands, then upon the Judgement a Scire facias was sued, and afterwards a Fieri facias, of the Testators Goods: it was held, that the Goods first extended were lawfully extended, and shall be good.

A Judgement was had against Sir Fr. Freeman, and an Extent came to the Sheriff, and afterwards, and before any thing was there∣upon done, one Fieri facias against the Executor upon a Judgement, given before the acknowledging the Statute, was delivered to the Sheriff, and the Question was, whether the Extent or Fieri facias shall be first executed. And note, if the Land be first extended upon the Statute, and afterwards an Elegit, upon a Judgement obtained before the acknowledging the Statute, come also to the Sheriff, the moity of the Land extended shall be delivered to the Plaintiff upon the Judgement.

HIll. 15. Jac. The case of Villainage is within the Statute of Limi∣tation, * 1.143 and in the case of M. Corbet it was held, that the Pre∣scription of the Seisin of the Plaintiff and his Ancestors, as Villain, was more then needeth, and the Issue thereupon taken was good by the whole Court, after Exception taken thereupon: and Judgement was given for the Plaintiff.

In every Elegit the Sheriff must return, and set out the moity di∣stinctly, * 1.144 unless they be Tenants in common, and in that case he must return the special matter. An Extent issued out against one Greisley by the name of Greisley Esquire, who was at the time of suing out the Writ made Knight and Baronet, and it was naught, and the Plaintiff prosecuted a new Writ.

MIch. 10. Jacobi. A Tenant by Statute Staple or Elegit, that hath * 1.145 extended an Abbots Lease, or a Lease made out of an Abbots Lease, is not bound to shew it, because he cometh in by Act of Law: but any other that cometh in under the Lease, must shew it, by the opinion of the whole Court. And note, that in Hillary 10. Jac. two Inquisi∣tions taken at several Dayes by several Juries upon one Statute Mer∣chant, were adjudged naught; one was taken of the Land, and the other for Land and Goods: and Extent of the whole fourth part was naught, for it should be of the moity of the fourth part: and mark, * 1.146 it was of a Lease, which was but a Chattell, and the Sheriff might have sold it as Goods, but seeing he had extended it, in this case he should receive benefit but as in a common Extent.

COmyrrs versus Brandling. A Lessee that had a Lease of the value * 1.147 of 100. l. and after the Teste of the Elegit, and before the Sheriff had executed the Elegit, assignes his terme to one, who assignes it over to the Plaintiff in the Scire facias, and afterwards, and before the last Assignement the Sheriff executes the Elegit, and delivers the Lease to the Plaintiff, tenend, &c. for satisfaction of the Debt, which came to but 43. l. 6. s. 8. d. & it was held by all the Judges, that the Sheriff could

not deliver the Lease at another value then what the Jury had found it at; and the Sale made by the Sheriff is as strong as if it had been made in open Market: and that all the Goods and Chattels are bound after the Teste of the Elegit, and cannot be sold by the Owner after the Teste of the Writ.

If a later Extent be avoided by an ancient Extent, after the ancient Extent is satisfied, the later Extent shall have the Land, according to his first Extent, without any re-extent, by the opinion of Serjeant Hutton, if the Husband charge the Lease of the Wife, and dieth, the Wife shall hold the Land discharged.

HIll. 12. Jac. The Earl of Lincoln against Wood, the Earl of Lincoln * 1.148 did arrest Wood, upon a Capias, upon a Statute Merchant, Wood be∣ing in Execution, obtained in the Chancery an Audita Quaerela, and did put in Bail there, and had a Supersedeas, and was discharged of his Imprisonment; and the Audita Quaerela, and Bail sent into the Com∣mon Pleas to be proceeded on. The cause of the Audita Quaerela was grounded upon the performance of the Defeasons of a Statute; and after this case was debated for the Bailment of Wood, and held by the Court to be good, it was allowed of.

If the Act for Dissolution of Monasteries had not given the Land * 1.149 to the King, the Founders ought to have had them. And if an Ho∣spital or religious House is impeached upon the Statute of Supersti∣tious uses, it must be proved to be regular, for they must be religious that are dissolved, by E. 6.

JOules versus Joules Alderman purchased Land of one, a∣gainst whom a Judgement was given long before the Purchase, and the Vendor afterwards became unable to pay the Judgement, and long after the Plaintiff in the Judgement purchased a Scire facias a∣gainst the Defendant, and had Judgement against the Defendant by Default, and afterwards had an Elegit, and by vertue of that the Sheriff extends the Land of Joules the Purchasor, who prayes the aid of the Court, because the whole Land was not extended, but he was forced to bring his Audita Quaerela.

If I make a Lease for years, reserving a Rent during my Life, and * 1.150 my Wives Life, if I die, the Rent is gone, because she is a stranger, she shall never have the Rent, because she hath no Interest in the Land; if one of them die, nothing can survive to the other, and a Li∣mitation must be taken strictly, otherwise it is by way of Grant, that shall be taken strongly against the Grantor.

If 2. Tenants in common joyn in a Lease for years, to bring an Eject∣ment, * 1.151 and count Quod cum dimisissent, &c. that is naught, for it is a several Lease of their Moities, and you must declare, Quod cum, one

of them demised one moity, and the other the other moity, and good.

If a Tenant in Socage hath Issue, and die, his Issue being under the * 1.152 age of 14. years, the next Freind of the Heir, to whom the Inheri∣tance cannot descend, shall have the Guard of the Land, untill the Heir come to the age of 14. years, and he is called Guardion in Soc∣age, and in pleading a Lease for Life, you are never to alleadge the place where the Lease was made, because it passeth by Livery, which was executed upon the Land. He that pleads a Demise, ought to shew that the Lessee entred, and he that pleads a Descent, ought to shew that he entred: and an Exchange is a good Plea in Bar, but it shall never be adjudged a good Exchange, except this word Escambi∣um be used in the Charter of Exchange.

HOpkins versus Radford. A Defendant shall take no benefit of his * 1.153 own wrong. In Sir James Harringtons case, the Original was re∣turned Quinque Pasch. and the issue joyned that day, and the Veni∣re facias returned that day, and held naught by the Court upon the first motion. A future Lease cannot be surrendred but drowned.

For things in Action a Deed of Gift is void, as Debts without Spe∣cialty, * 1.154 although he say, Goods, Chattels, and Specialties, but for other Debts by Specialty, and Goods, it is good; and for the Debts in Action after the Death of the Party Administration is to be gran∣ted, and the Administrator is to have the Goods.

RAiner versus Mortimer. One had Judgement upon a Scire fa∣cias * 1.155 to have Execution, and a Capias ad satisfaciendum returna∣ble, 15. Martini, and that Writ was returned Album Breve, and a Testatum thereupon, and the Defendant taken, and this matter was moved to the Court, and a Supersedeas prayed, that the Testatum issued out erroneously, because the Capias was not returned; and it was granted by the whole Court, because the Capias was not re∣turned.

One seised in Fee may bargain and sell, grant and demise Land to others, and their Heirs, to the use of one for years, because he hath a * 1.156 Fee-simple, but Lessee for years cannot bargain and sell his Lease, to the use of one for years.

If a Marriage is intended between two men, and one of them in consideration that the other hath upon the Marriage, assured Land to * 1.157 his Son, he doth assume to pay to my Son such a Summ, immediately after the Marriage; if the Money be not paid, the Son must have the Action, and not the Father.

MIch. 5. Jacobi. 61. One Jury-man appear in Court, and when he * 1.158 came to the Barr to be sworn, he informed the Court that he was eighty years old, and prayed to be discharg••d, and the Court could not grant it, nor pass him by, and swear others, without com∣mitting Error, except the Parties would consent; for it is Error to skip a Juror who is returned, if he appear, and therefore the Juror was drawn by the consent of the Parties.

TRin. 6. Jacobi. Upon a Levari facias out of a Court Baron, Goods * 1.159 cannot be sold without a Custome to sell the Goods: and if Goods be attached by Pone out of a Court Baron, the Defendant shall not lose his Cattle; otherwise it is, if it be a Process out of the Common Pleas, then the Defendant loseth his Cattle, for not appea∣ring: if you lay, that you have a Court time out of minde to be held before a Steward, you must shew what Pleas you have used to have Conusance of.

A Sheriff returned but 21. onely upon a Venire facias, and at the * 1.160 Triall ten onely appeared, and a Decem tales was awarded, and tried, and Verdict for the Plaintiff; and this matter was moved in Arrest of Judgement, for that the Sheriff had returned but 21. and the Court were of opinion, that if 12. of them had appeared, that it had been good notwithstanding; but because 10. onely appeared of the prin∣cipal, therefore it was naught; and Judgement arrested for that cause. If a Juror be sworn of the principal, and the Jury remain, * 1.161 when the Jury comes again, he shall be sworn again.

TRin. 6. Jac. rotulo 251. Dunnall versus Giles. A special Verdict, * 1.162 and the Question was, a man being possessed of a terme, devises the whole terme to A. for Life, and if he dies within the terme, to B. during the minority of C. and that C. when he comes to full age shall have the Remainder of the terme, and held a good Devise. To devise Land, or Terme, or Lease, all one, it is an Executory Devise. If one surrender Land to the use of an Estranger, that is, to resty the use in Reversion, for the Land is in him immediately. If a man hath a Rent in esse, you cannot grant that in Reversion after your Death; but if I surrender to the use of one after my Decease, is not good, by his o∣pinion of Warburton and Daniel.

If the Sheriff shall by vertue of a Fieri facias levy the Debt and * 1.163 Damages of a man, and make a Return, that the said Goods remain in his hands for want of Buyers: the Property remains still in the Defendant, although the Sheriff hath Possession of the Goods. A Sheriff may sell Goods levied upon a Fieri facias out of his County.

In Watermans case, the Issue was, whether a Copy-holder in one

Town had Common in Land lying in another Town, and the Plaintiff shews that he is Lord of the Hundred of C. within which Hundred one of the Villages lie: and prayes a Venire facias of the Town next adjoyning to the said Hundred; and it was granted, and tried, and Exception to the Triall, for that the Venire was not of both Villages.

An Alien born being no free Denizen may defend and bring a Writ * 1.164 of Error, and it is no Plea to say, that he is an Alien born.

Note, by the Common Law the Lord of the Mannour may come and take away a Tree cut down upon the Copy-hold Land by his Co∣py-holder, without laying a special Custome for it.

If there be an unlawfull Marriage, as the Brother doth marry his * 1.165 Sister, and they have Issue, and one of them dieth before any Di∣vorce had between them; now after the Death of one of them, the Issue cannot be bastarded, as in Cordies case, 39 E. 43. 22 E. 4.

After a general Imparlance one cannot plead an Outlary in Barr to an Action of Trespass or Case, but it must be pleaded in abatement, except he be outlawed after the last Continuance; for you shall plead nothing in Barr but what goeth to the pit of the Action; now the Da∣mages in Trespass or Case are not forfeited by Outlary, as Debt, because of the incertainty.

To the Owner of the Soil on both sides of the way, of common * 1.166 right belong the Trees that grow in the Lane, whether he be Lord or Free-holder. The best badge of truth, is the usage of taking the pro∣fit of the Trees.

11 H. 4. rot. 80. Where the Court, ex officio, should inquire, and that * 1.167 omitted, the Court may supply it; but where an Attaint lyeth, that is not to be supplied, as in a Valore Maritagii, the value is the point of the Writ, and if that be omitted by the Jury, never to be supplied by Writ. Cheyneys case, Valore Maritagii, and intrusion were at the Common Law before the Statute, and the Statute doth but inlarge the Common Law; for by the Statute the Judgement is otherwise then at the Common Law.

It is vain to plead the Execution of a Writ of Seisin upon a Recove∣ry, * 1.168 but to plead that he did enter.

MIch. 10. Jac. If I purchase Land by a name, and alleadge it to be in a wrong Parish, or Shire, it is good, notwithstanding the * 1.169 mistake by the Court.

A stranger shall be bound by a Law made for the publique good, but he must come within the place where it was made.

The King cannot grant precedency in publique things, as to go by * 1.170 Water, or by passage on the Land, as by Coach: if a Bond bear Date Super altum mare, then it must-be sued onely in the Admiral Court; otherwise it cannot be sued there.

Every Bishop hath his Cathedral and Councel, and the Councel and Bishop there decide matters of Controversie, the Prebends have their names from their affording of help to the Bishop, and in time of the vacancy of the Bishop, the Arch-bishop is Guardian of the Spiritual∣ties, and not the Dean and Chapter.

TRin. 14. Jac. rotulo 1810. Birtbrook versus Battersby Exception raken after Triall. The Action was laid in Westmerland, and the Jurata written at the end of the Record, was Ebor. ss. ura. Inter, &c. and recites the Day of Triall in the County of York, and the place where the Triall was, at York, and prayed that it might be amended, and it was granted to be amended, by the whole Court.

INt. Bullen & Jarvis. The Venire facias was made in this Form, Vide∣licet, Liberos & legales homines de B. and it should have been De vi∣cineto de B. and it was notwithstanding held good, and amendable by the Roll; for it shall be intended, that the Jurors are inhabiting in the Town of B. although the Sheriff returns the Jurors of other places, and none of them be named of B. and the Venire facias was returned by. A. B. Ar. without naming him Vic. and it was amended by the Court.

GRiffin versus Palmer, Trin. 15. Jac. rotulo 924. Issue taken, whe∣ther * 1.171 the Lands contained in the Fine were ancient Demesne or not, pretending they were parcell of the Mannour of Bowden in the County of Northampton, which was pretended to be ancient De∣mesne, and the Doomesday Book was brought into the Court, and by that Book it appeared, that the Mannour of Bowden was in the County of Leicester, and not in the County of Northampton, but the Councel affirmed, that the Mannour was both in the County of Leicester and Northampton, but it valued not, for the Doomsday Book was against the Plaintiff.

The Court was moved to amend a Venire facias, which was Album * 1.172 Breve, but the Court would not grant it, although the Sheriffs name was put to the Pannell; but if the Sheriff upon the Venire facias had returned, that the Execution of that Writ did appear in a certain Pannell annexed to that Writ, and had not put his name to the Writ of Venire facias, but to the Pannell, in such case the Court would have amended the Venire facias.

Lessee at will cannot grant one his Estate, if one occupy with Te∣nant * 1.173 at will, this is no Disseisin, to the Lessor. If a Tenant for seven years suffer Trees to grow above the age of 21. years, they are Tim∣ber, and it is waste to cut them. Tenant at will shall pay his Rent, when he holdeth over his terme, but Tenant at sufferance shall not pay any Rent. If a man holdeth over his terme, and pay his old Rent, he shall be accounted Tenant at will.

If one being sick, giveth Notes to make his Will, and after by infir∣mity * 1.174 of sickness he becometh so weak that his memory faileth him, and these Notes are made into a Will, this is a good Will, otherwise it is, if he become lunatique after the Notes given.

MIch. 15. Jacobi. One Warter was committed to the Fleet by the * 1.175 Lord Treasurer of England, and the Prisoner was brought to the Common Pleas by Habeas Corpus, which was returned, and no cause of the Commitment expressed, and for that cause the Prisoner was set at liberty, and bailed.

TRinity Terme 15. Jacobi. Hanson one of the Attorneys of the Common Pleas delivers a Note to the Sheriffs Clerk, of the names * 1.176 of divers Jurors that were to be returned, and of divers others that were not to be returned, in a case concerning one Butler, and for this Offence he was put out of the Roll of Attorneys.

In Spilmans case; if I have Estovers in Land, and cut down Esto∣vers, * 1.177 and a stranger taketh away the Estovers, I shall have an Action against him that taketh them away, although he have there Common of Estovers also.

If the Husband sow the Ground, and die, the Executors and not the Heir shall have the Corn; but if the Father sow the Land, and * 1.178 dieth, or the Heir sow the Land, and the Wife recover Seisin in Do∣wer, she shall have the Corn.

The setting open a Shop on the Sabbath day is punishable by Sta∣tute Law, and so is a House of Bawdry, and not to be dealt with by * 1.179 the high Commissioners.

So long as the Land is occupied by him that hath the Fee-simple, which did formerly belong to the Order of the Cistercians, it shall pay no Tithes, but if he let it for years or life, the Tenant shall pay Tithes.

HIll. 11. Jac. rotulo 90. A Recovery was had upon a Writ of En∣try in le post, for a common Recovery between Hartley and To∣wers, * 1.180 in the County of Bucks; the Attorney who prosecuted the Re∣covery, by negligence did not file the Writ of Entry, which was pro∣secuted orderly, and all Fees paid, when the Recovery was passed. And in Easter Terme, 14. Jac. it was moved that the Writ of Entry might be filed, and it was granted, although the Tenant was dead, the Writ of Entry was returnable, Octabis Purificationis.

MIch. 14. Jacobi. My Lord Hubbard, Justice Warburton, and Winch, held, that when there were but three Judges of the Common-Pleas they might argue Demurrs, and if two of them were of one minde, and one of the other, the Judgement should be given according to their opinions.

My Lord Cook said, that for the Body of the Church, the Ordinary * 1.181 is to place and displace; in the Chancell the Freehold is in the Parson, and it is parcell of his Gleab; Tpespass will lie by the Heir for pulling down the Coat-Armor, &c. of his Ancestors, set up in the Church. A Pew cannot belong to a House.

Fraud shall never be intended, except it be apparent and found, and * 1.182 that conveyance which at the time of the making was good, shall ne∣ver by matter ex post facto be adjudged to be fraudulently made, for before primo Eliz. at the Common Law. A conveyance made for na∣tural affection without valuable consideration is not to be avoided; none shall avoid it, but such as come in upon valuable considera∣tions.

Lands devised to one in Tail upon condition, that he shall not alien, * 1.183 and for Default of such, the Remainder to R. in Tail, this is a Con∣dition, and no Limitation, by the whole Court; and the Heir at the Common Law may enter for the Alienation.

Matters of instance which are between party and party, as for * 1.184 Tithes, and Matrimony, are not to be dealt withall by the high Com∣missioners, if they proceed inverso ordine, that cannot be holpen in the Common Pleas but by superior Magistrate, if they be Judges of the cause.

If one in Norfolk come within another Dioces, and commit Adul∣tery * 1.185 in another Dioces, during the time of his residence he may be cited in the Dioces where he committed the Offence, although he dwell out of the Dioces, by Cook, Warburton, and Winch.

If the King grant Lands to A. and his Heirs Males, and doth not * 1.186 say, of his Body, he is but Tenant at will, Tamen quaere.

A Deputy of an Office for Bribery cannot make his Master be pu∣nished * 1.187 corporally, but pecuniarily, equity shall not barr me of the benefit of Law. Note, the Probate of Wils and Administrations did not belong to the Ordinary originally, but to the Common Law.

If two Aliens be at Issue, the Inquest shall be all English; but if between an Alien and Denizen, that Inquest shall be de medietate Lin∣guae, 21 H. 6. 4. A Judgement given against a dead person is not void, but Error, 28. Ass. 17.

A Juror was committed to the Fleet, For making his Companions * 1.188 stay a whole Day and a Night, having no reason for it, and without the Assent of any of the rest of his Fellows, and after was bailed, but not untill the Court was advised, 8 E. 3. 75. In a Writ of Estate Pro∣banda, every Juror ought to be of the Age of 42. years.

If I grant Land to one, and his Heirs, in the Premises of the Deed, * 1.189 Habendum, to him, and the Heirs of his Body, he shall have the Land in Tail, and the Fee-simple after the State in Tail, when the Estate is certain in the Premises, the Habendum shall not controll it.

If one make two Executors, one of seventeen years of Age, and * 1.190 the other under Administration, during the minority is void, because he of seventeen years old may execute the Will of Administration, during the minority, in such case be granted; and the Administra∣tor brings his Action, the Executor may well release the Debt. Pigot and Gascoins case.

If a Record go once to Triall, and warning given, if the first At∣torney * 1.191 be alive, the Plaintiff is not tied to give warning again, but if the Attorney be dead, he is.

If no place of Payment be in a Will, which appointeth Money to be paid, there must be a Request to pay the Money, for he is not bound to seek all England over for him; otherwise it is, if it were by Bond.

In every case where the Plaintiff might have Judgement against the Defendant, there if the Plaintiff be non-suit, the Defendant shall have his Costs, if the Plaintiff be non-suit.

TRin. 11. Jac. In cases of remitting causes from the inferior Judge, * 1.192 the Arch-deacon cannot remit the cause to the Arch-bishop, but he must remit it to his Bishop, and he to the Arch-bishop.

It was held by the Court, that one might distrain for a Legacy. In a special Verdict the Plaintiff must begin to argue first.

OLive versus Hanmer. A Writ of Error was brought upon a * 1.193 Judgement by Nil. dicit, for want of a Warrant of Attorney, and the Record certified, and a Certior are to the Clerk of the War∣rants, and Error assigned for want of a Warrant. And the Court was moved, that a Warrant might be filed, and it was granted, and a War∣rant filed accordingly.

Pasch. 12. Jac. An Action was brought against Baron & feme: and * 1.194 an Attorney appeared for the Husband alone, and the Court held, it was the Appearance of Baron & feme in Law.

PAsch. 12. Jacobi. Sheriff versus Whitsander. One Judgement was * 1.195 confessed in Trin. 42. Eliz. rotulo 504. And afterwards in Trinity Terme 43. Eliz. the Defendant brought a Writ of Error bearing Date the 12. of May, Anno 43. and upon that Writ the Record was cer∣tified 25. May, and afterwards Error was assigned in the upper Bench, for want of a Warrant of Attorney by the Defendant. And Mich. 43. & 44. Eliz. the Warrant of Attorney was received, and entred upon Record by Order of Court of Common Pleas. And the like was Pasch. 2. Jac. rotulo 1956. Int. Bathgrone and Smith, and the like, Mich. 1. Jac. rotulo 1306. Inter Smith & Kent.

CRane versus Colpit. Question was, whether the Attornement of * 1.196 an Infant be good or not: and by the whole Court it was held good by three Reasons; First, he gives no Interest. Secondly, it is to perfect a thing. Thirdly, he is a Free-holder.

IT was held in the case of Gage an Attorney, who as an Administra∣tor * 1.197 brought an Action of Priviledge, that his Priviledge ought not to be allowed. And after a Bill was filed against Drury an Attorney, as Executor, and held, that the Bill would not lie, but in both cases the Suit should be by Original.

BEarbrook versus Read. The name of Confirmation must stand, for Sir Francis Gawdy was christened Thomas, and confirmed Francis, by that name he must be called.

SIr Henry Compton was sued for Cloathes of his Wife, bought with∣out * 1.198 his command or privity: and the whole Court were of opini∣on, that if the Wife should buy Merchandises, and thereof make Cloathes, and wear those Cloathes, although the Husband know no∣thing of them, yet he shall pay for them.

PAsch. 10. Jac. The Court was moved, to know whether the Wife * 1.199 of a Bankrupt can be examined by the Commissioners upon the Statute of Bankrupt; and they were of opinion, she could not be examined. For the Wife is not bound in case of high Treason to dis∣cover her Husbands Treason, although the Son be bound to reveal it: therefore by the Common Law she shall not be examined. An Infant shall not be examined.

If an Administration be granted to one, during the minority of two Infants, and one of them dieth, the Administration continueth still.

Actions of Debt.

LOvelace versus Cocket, Mich. 6. Jac. rotulo 1001. Action of Debt * 1.200 brought upon an Obligation for the Paiment of Money at a cer∣tain Day specified in the Condition. The Defendant pleads, that the Plaintiff at the Day of Payment accepts of another Bond for the Payment of the said Money, in satisfaction of the said 52. l. 11. s. and upon a Demurrer held to be a naughty Plea, for one Bond cannot overthrow another.

LEa versus Pain, Hill. 14. Jacobi rotulo 953. An Action of Debt * 1.201 brought upon an Obligation with a Condition to perform an Award, the Defendant pleads, that the Arbitrators made no Award. The Plaintiff by way of Replication sets forth an Award, that the Arbitrators did arbitrate of all matters, untill the Date of the A∣ward, which was a Moneth longer then the Submission, and so pretends they exceeded their Authority. The words were for all causes before the Date of the Award. Another Exception was, because the Arbi∣trators awarded that the Defendant should pay the Plaintiff such a Day of April, and doth not say, what year, or next following: and the Court held that good enough, because the second Day of Pay∣ment was made to be such a Day, and such a year: and it was held good enough, for if any new matters did arise between the Submissi∣on and Award, or, &c. the Defendant ought to shew it. Another Exception was, that it was not said, that the Award was made be∣tween the Parties, but it shall be intended to be made between the Parties, because the Award was made de & super praemissis, and there∣fore it shall be implied, that it was made but of such things as they had power to deal in. The Court was of opinion, that the Award be∣ing de & super praemissis, the Court shall not say, but that this was a cause submitted; and except it had been discovered by pleading, that there was a new cause since the Date of the Award, which was made known to the Wardsmen, the Court is not to take notice thereof.

SCot Executor versus Herbert. The Plaintiff in his Declaration sayes the Testator in his life-time was possessed of Land for a * 1.202 terme of years; and so possessed grants part of his terme to an Estran∣ger, reserving Rent, and he grants his Estate to the Defendant. And that the Testator died possessed of the Reversion of the terme, and because the Rent was behinde, the Executor brings his Action of Debt for the Rent, and the Declaration was held naught, for that it did not appear that he that made the first Demise was seised in Fee, or in any other Estate by which he could make a Lease.

NOrris and Trussell Wardens of the Society of Weavers in the * 1.203 Town of Newbury in the County of Berks, versus J. Scapes, Pasch. 14. Jac. rotulo 907. An Action of Debt brought, and the Plaintiffs declare that Queen Elizabeth had incorporated them by such a name, and given them Power to make by-laws, for the better governing their Corporation, &c. and further shew that they made an Order which was confirmed by the Justices of Assise according to the Statute of 19 H. 7. and for the Breach of such Order brought their Action: the Defendant pleaded that he owed them nothing,

and tried, and a Verdict for the Plaintiffs, and Hutton Serjeant moved in Arrest of Judgement, and took three Exceptions: the first, be∣cause the Constitution was against Law, to restrain one to exercise a lawfull Trade. The second, the Constitution was, that the Offender should forfeit such a summ, and it did not appear to whom this For∣feiture should go. Thirdly, the Plaintiff shews in his Count, that the Queen by her Letters Patents had appointed A. B. C. to be War∣dens for one year, and shews not which those that brought the Action were elected, which ought to be, to intitle them to that Action. It was against sense to barr all their own Apprentices, it doth not appear how many Wardens should be, and they do not intitle them to the Action by the Corporation, the Law is altered; and Judgement was given for the Defendant.

BRet versus Averder, Mich. 29. & 30. Eliz. Debt brought upon * 1.204 an Obligation, to perform an Arbitrement: the Defendant con∣fesses the Arbitrement, but pleads in Barr, that the Plaintiff did not require him to make Payment, and to that Plea the Plaintiff demurrs; and it was adjudged no Plea; for the Defendant at his perill ought to make Payment, and the Plaiutiff ought not to make a Request.

HAles versus Bell, Trin. 39. Eliz. rotulo 1974. The Plaintiff * 1.205 brought an Action of Dèbt upon an Obligation, with a Condi∣tion for the Payment of 40. l. within fourteen Dayes next after the return of one Russell into England, from the City of Venice, and then the Obligation should be void; the Defendant pleads in Barr, that the said Russell was not at Venice, upon which Plea the Plaintiff demurrs; and adjudged a naughty Plea; for where part is to be done within the Realm, and part out of the Realm, the Plea ought to be triable within the Realm.

GArret versus Harrison Executor, Trin. 40. Eliz. rotulo 1651. To * 1.206 an Action of Debt upon a Bond brought against him as Executor; the Defendant pleads six Judgements in Barr; the Plaintiff replies, that they were by fraud and covin; and the Jury found for the Plaintiff, that two of the six were by covin; and Williams moved in Arrest of Judgement, because the Jury ought to have found all; but Glanvile said, that if any part of the Plea be insufficient, defective, or false, the Issue shall be found against you, for your Plea is one intire thing; and he said, that the Plaintiff should have taken Issue upon one one∣ly, as in an Obligation, with diverse things in the Condition. Walmsley held, that by the Plea the Defendant had confessed implicatively, that you have sufficient to satisfie those six Judgements, and no more. So that if any part be found against you, this is Assets; and Judgement was given accordingly for the Plaintiff.

GReen versus Wilcox Executor. To an Action upon an Obligation brought against the Defendant as Executor, he pleads that the Testator was obliged to A. in 20. l. which remained due to him at his Death; and that the said A. recorded against him in the Com∣mon Pleas, and averres that it was a true Debt, and the persons and matters to be the same, and that he had no Assetts beyond that; and the Plaintiff replies, that the said Recovery was had by fraud and co∣vin between them, to defraud him of his Debt; to which Plea the Defendant demurrs, specially because he had in his Plea averred, it was a true and just Debt, so that it could not be by covin.

Trin. 44. Eliz. It was adjudged for Law by the whole Court, that * 1.207 if a Fieri facias be directed and delivered to the Sheriff, he may not break the outer Door of the House, and enter, and do Execu∣tion; but if the outer Door be open, then he may enter by that, and then he may and ought to break the Door of an Entry or Chamber which is locked, and break open any Chest which is locked, and take the Goods in that in Execution; and if he doth it not, an Action of Case will lie against him.

In Debt, if it be demanded by Original, the Process is Summons, At∣tachment, and Distress; and for Default of sufficiency upon a Nichil, returned Process to the Outlary, if the Summons or Attachment be re∣turned, an Essoyn lies. And Wager of Law lies if the Count be upon a simple Contract. And if the Parties be living which made the Contract or Debt against an Heir, the Writ shall be brought in the Debet; but when it is brought against an Executor, or Administrator, or of Chat∣tels, it shall be in the Detinet tantum. The Judgement in Debt where the Demand is in the Debet & detinet, is to recover the Debt, Dama∣ges, and Costs of Suit; and the Defendant in misericordia: but if the Defendant denies his Deed, then a Capias for his Fine issues out. And if the Original be in the Detinet for Chattels, then the Judgement is to recover the thing in Demand, or the value thereof, and Costs, and Damages; and the Process of Execution is a Distress to deliver the Chattels, or the value, and Damages. And if the cause of Action be against Executors or Administrators, the Judgement is to recover the Debt and Damages of the Testators Goods, if the Executor hath so much in his hands, and if he hath not, then the Damages of the Exe∣cutors or Administrators proper Goods. And if the Sheriff upon a Scire facias return a Devastavit, then a Fieri facias, or Elegit, may be sued out to levy the Debt and Damages of the Executors or Admini∣strators proper Goods. And if the Executor plead, that he never was Executor, and it is found against him that he hath administred but one Penny, the Judgement shall be to recover the Debt and Damages of the Executors own Goods. Debt brought upon a Record, the

Execution shall be brought where the Record remaines.

MIch. 9. Jac. rotulo 2304. Throckmorton Administrator, versus Hobby. The Aministrator releases, and afterwards the Admini∣stration is revoked, and declared by Sentence to be void and null, and then the Release is void.

TRin. 9. Jac. rotulo 917. Brookesby & Vaux versus M. Tresham * 1.208 Executor of the Testament of T. T. and Exception was taken to the Defendants pleading, because the Defendant pleads divers Sta∣tutes to divers persons; and the Plaintiff shews that some were by fraud, and that others were for performance of Covenants, that were not broken, and for other Statutes that they were satisfied, and the * 1.209 Defendant in pleading a Statute by three, sayes, two of them did not pay, and doth not say, that the three nor any of them have not paid. In pleading of a Statute it must be generally pleaded, that it is a true Debt. And my Lord Cook held, that a man without a Defeasance may plead, that the Statute was acknowledged for Payment of a lesser summ; and it was held, that if the Count be good, and the Plea naught, and Replication naught, if it appears that the Plaintiff had good cause of Action, the Plaintiff shall have Judgement. And War∣burton said, that one may plead generally, that the Statute was ac∣knowledged by fraud, without shewing the special matter.

SPeak versus Richards. The Plaintiff brought an Action of Debt * 1.210 for Money levied by the Sheriff upon a Levari facias, and not paid to the Plaintiff upon the Sheriffs Return upon the Levari issued out of the Chancery, and that it would well lie. But note, the Plaintiff had concluded his Demurrer ill, for he demurring to the Defendants Plea, which was grounded upon a Release should have demanded Judgement, if the Defendant should be admitted to plead a Release, which was made after the Sheriff had made his Return.

TRin. 15. Jac. rotulo 1630. Parson versus Middleton. Action of * 1.211 Debt brought to be tried in Durham, and the Record sent to the Chancellor of Durham, because the Bishops Sea was empty, and be∣fore the Day given by the Judges, a Bishop was elected, and he sent the Record, and not the Chancellor.

MIch. 15. Jac. rotulo 2118. Maddock versus Young. The Plantiff * 1.212 brought an Action of Debt for an Escape against the Sheriff upon a Capias utlegat, after Judgement; the Defendant pleads that there was no such Record of the Recovery of the Debt and Dama∣ges; to which Plea the Plaintiff demurrs, pretending he had not

directly and plainly answered the Declaration, but Judgement was given for the Defendant. Where a Capias is not the Process, a Capias ad satisfaciendum is not the Execution; and no Capias lies against a Countess or Baroness; and at Common Law no Capias ad satisfacien∣dum would lie, but onely where the Action was Vi & armis, but one∣ly a Levari facias.

MIch. 14. Jac. rotulo 3140. Bawkey versus Isted. An Action of * 1.213 Debt brought upon the Statute of E. 6. for not setting forth of Tithes of Land lying within the Parish of Horsted parva, the Defen∣dant pleads Nil debet per patriam, and after Triall and a Verdict, Ex∣ception was taken to the Venire facias, because the Venire facias was of Horsted parva, and not of the Parish of Horsted parva, but the Court were of opinion, that it might be either of the Town or Parish of Horsted parva, and Judgement was given for the Plaintiff, because both the Town and Parish were named in the Record.

An Action of Debt brought against an Administrator, who pleads, * 1.214 that the Intestate was indebted to him, and that he had fully admini∣stred, and that he had no Goods or Chattels which were the Inte∣states, beyond Goods and Chattels to the value of 10. l. which the Administrator retains towards satisfaction of the said Debt to him due, the Court were of opinion that the Administrator ought to plead generally, fully administred, else the Debtor should be preju∣diced in taking Issue upon that Plea, the Case was between Fox and Andrew.

PAsch. 6. Jac. rotulo 751. Sharpley versus Hurrell. Action of Debt * 1.215 brought upon an Obligation, and the Defendant pleads the Sta∣tute of Usury, and sets forth, that one Ship went a fishing to New∣found-land, which Voyage might be performed within eight Moneths, the Plaintiff delivered fifty pounds to the Defendant, to pay sixty pounds upon the Return of the Ship to Dartmouth from fishing, and if the Ship should not come to New-found-land, by reason of Leakage or Tempest should return to Dartmouth, then the Defendant should pay the principal Debt, and if the Ship should never return he should pay nothing; and it was held by the Court that it was not Usury, for if the Ship stayed at the New-found-land two years he should pay but 60. l.

An Action of Debt brought against an Executor, who pleads, that * 1.216 he had nothing in his hands at the time of the Writ purchased, and saith not, nor any time after the Plea, is not good; but if the Plaintiff had took Issue, that he had Assets at the Day of the Writ purcha∣sed, and it had been found for the Plaintiff, now the Plea is made good.

If an Action of Debt be brought against two Executors, and one of them onely appear, and confess the Action, the Judgement shall be against both of them, of the Goods of the Testators in the hands of all the Executors, and the Damages of him that appeared onely.

TRin. 16. Jac. rotulo 988. Houldsworth versus Barker. An Action * 1.217 of Debt brought upon a Bill, the Defendant pleads the Bill was delivered to the Plaintiff, upon a Condition not performed, and it was held a naughty Plea by the whole Court.

HIll. 13. Jacobi rotulo 842. Harrison & al. at the Suit of Fleet. An Action of Debt brought for 32. l. and the Plaintiff counts upon an Emisset; Harrison pleads, that he and the other do not de∣tain * 1.218 from the Plaintiff the said 32. l. nor any Penny thereof; and the other pleads to Issue, and a special Entry made, that the Issue should remain, untill the said Harrison had perfected his Law, or made De∣fault, * 1.219 and he at the Day did wage his Law, and Judgement was, that the Plaintiff should take nothing by his Writ.

PAsch. 16. Jac. rotulo 1200. Rayson versus Winder. An Action of * 1.220 Debt brought upon an Obligation, with a Condition to perform an Award, which was good in part, and void in part, and the Breach assigned upon the good part, and the Award was to pay Money, but no time of Payment, & afterwards it was demanded, & the Award is good.

GAsington versus Burcher Knight, Turner, Jones, and Bowden, for * 1.221 1800. l. Burcher was outlawed, Turner and Jones appeared by Su∣persedeas, and Bawden appeared by another Attorney, and the Plaintiff declared against them three that appeared upon an Account; Turner offered to wage his Law, and the others plead Nil debent per patriam; and the Court was moved pretending that Turner shal not be admitted to wage his Law, because the Defendants should not sever in Plea, but the Court upon sight of divers Presidents were of another opinion, al∣though it was urged that Turner & Jones joyned in a Supersedeas, and therefore pretend that Turner should not sever in Plea from Jones, that pleaded Nil debet per patriam, but that Exception was disallow∣ed, for although two appear by Supersedeas, yet they may vary in Plea.

MIch. 16. Jac. rotulo 581. and the Imparlance entred, 16. Jac. ro∣tulo * 1.222 1727. An Action of Debt brought by Lee versus Arrow∣smith upon an Emisset, for divers Parcels, and upon an Account, and the Parcels, and Account amounted to the summ of 300. l. but in the Imparlance Roll, the Parcels and summ accounted for, did not amount to 300. l. by 6. l. And this variance was moved in Arrest of Judgement

after a Verdict, but the Court were of opinion, that it was amenda∣ble, because Ball the Attorney made Oath, that he commanded his Clerk to summ the Account for 6. l. to maintain his Writ, and there∣fore the Roll was amended.

HIll. 36. Eliz. rotulo 1908. Action of Debt brought by Gage versus * 1.223 Gilbert, upon an Obligation for 500. l. bearing Date, first of Fe∣bruary, Anno 25. Eliz. The Defendant pleads a general Release made to him by the Plaintiff, bearing Date after the making of the Bond, of all Dues and Demands whatsoever, except an Award made be∣tween the Plaintiff and one G. W. why R. R. then dead, and one Obli∣gation of 500. l. for performance of the said Award, bearing Date 29. April, 25. Eliz. and whether these words (bearing Date 29. April) shall have reference to the Arbitrement, or Bond, was the Question, upon a Demurrer upon the Replication, in which the Plaintiff shewed the special matter that the Award was made the 29. April, and that the Bond was made the said first of February, and it was adjudged that these words, bearing Date, should have reference to the Award, and not to the Bond.

And if the Heir pleads Ciens per discent, besides one Acre, if the Plaintiff please he may have Execution of that Acre; or if the Plain∣tiff plead that he hath Assets beyond that Acre, and it be found that he hath ten Acres more, the Plaintiff shall have Execution of the Land onely, and not of his person: as it is where the Heir pleads, that he hath nothing by Discent generally, and it is found against him, that Land, and all other his Land which he hath, and his Body are liable to the Judgement, by a Capias ad satisfaciend. Fieri facias, or Elegit.

If a man be retained in London, to serve beyond Sea, he may have his * 1.224 Action for his Wages in England, in any County. And the like of an Obligation bearing Date at Roan in France, it may be sued in England, alleadging the place to be in such a County, where he brings his Action.

And note, that Debt may be brought in the Common Pleas, with∣out * 1.225 Original, against any Officer or Minister of the said Court, by Bill exhibited to the Court, but no Process of Outlary lies upon that; and the Judgement upon that, is, that the Plaintiff shall recover his Debt, and Costs, and shall have an Attachment, ad satisfaciendum, but no Exigont; for because it is not by Original; and all the Process by Bill shall be returnable at a Day certain: but no Bill lies against a Serjeant at Law. And note, that the Judges, Serjeants, and Officers, Clerks, Attorneys, and Ministers of the Court may have an Attach∣ment of Priviledge out of the said Court, without an Original to arrest any to them indebted, or for any personal cause to proceed up∣on

it, as if it were by Original, but no Process of Outlary lies there∣upon, and such Process of Attachment shall be returnable at a Day certain, and not at the common Return, and they may be returned from Day to Day.

If a man be bound to perform an Award of Arbitrators, and they * 1.226 make an Award accordingly, that one shall pay Money, he may have his Action of Debt for the Money, and declare upon the Award: and afterward may have another Action upon the Obligation, for not per∣forming the Award, by the opinion of the whole Court, Mich. 5. Caroli.

An Action of Debt brought by an Executor; the Defendant pleads * 1.227 an Outlary in the person of the Executor, and demands Judgement, if he ought to answer his Writ; the Plaintiff demurrs in Law to that Plea; and Judgement was given, that the Defendant should answer over.

WOlly versus B. and his Wife, Trin. 37. Eliz. rotulo 1306. An * 1.228 Action of Debt brought by Husband and Wife as Executrix: the Defendant pleads in Barr an Outlary in the Testator by an Estran∣ger, which is in its force; and upon a Demurr and solemn Debate, ad∣judged a naughty Barr. Trin. 40. Eliz. rotulo 507. The like Plea pleaded to an Executor that brought an Action of Debt, and ad∣judged no Plea. And Dixon Administrator of Collins, exhibited a Bill against Fawden an Attorney of the Common Pleas, and he pleads in Barr an Outlary against the Administrator, and adjudged no Plea.

MIch. 4. Ed. 4. rotulo 144. An Action of Debt was brought a∣gainst * 1.229 J. R. de W. in Com. L. Chapman, the Defendant appeared by his Attorney, and offered to wage his Law, and essoyned; and at that Day the Plaintiff appeared, and the Defendant being solemnly required, one J. R. came to answer the Plaintiff as Defendant in that Action, in his proper person, and offered to wage his Law; the Plain∣tiff said, that J. R. now appearing to wage his Law, ought not to be admitted, because the said J. R. is not that person which the Plaintiff prosecutes, because this I. R. appearing, is I. R. de W. in Com. L. Jun. Chapman, and he who the Plaintiff prosecutes is I. R. de W. in Com. L. Sen. Chapman, both of them at the purchasing the Plaintiffs Writ, living at W. and that he agreed with the Defendant so to do, therefore because I. R. de, &c. hath not appeared to wage his Law, prayes Judgement: the Defendant confesses such matter, and sayes, that he beleiving that the Writ was prosecuted against him, ap∣peared by his Attorney, and offered to wage his Law; and prayes to be discharged of the Debt: and the other I. R. being exacted,

appeared not: and the Court would advise, but no Judgement for the Plaintiff.

HIll. 26. Eliz. rotulo 420. The Lessor makes a Lease by Indenture * 1.230 for years, and the Lessee grants over his whole Terme; and the Lessor grants over the Reversion, and it was adjudged that the Gran∣tee of the Reversion should have an Action of Debt for the Arrears of Rent, against the Assignee of the terme, and not against the first Lessee.

HIll. 43. Eliz. Pasch. 41. Eliz. rotulo 425. An Action of Debt brought against an Executor in the Debet & detinet, for Rent due in the time of the Executor, upon a Lease made to the Testator, upon a Judgement given in the upper Bench, and that Judgement was reversed in the Exchequer, because it was not in the Detinet a∣lone; but afterwards in the upper Bench. Int. dominum Rich. & Frank Administrator for Arrears due, after the Death of the Inte∣state, it was adjudged good in the Debet & detinet, and also in the Common Pleas, Trin. 11. Jac. rotulo 2013.

MIch. 30. & 31. Eliz. rotulo 907. An Action of Debt brought, * 1.231 to which the Defendant pleads an Outlary against the Plaintiff in its force, the Plaintiff replies the general Pardon granted by Parliament; the Defendant demurrs, and Judgement, that he should answer over.

MIch. 40. & 41. Eliz. Ralph Rogers brought an Action of Debt * 1.232 upon an Obligation of 400. l. and Judgement was entred by the Clerk upon a Nichil dic. that the said Roger should recover, &c. and for that Default the Defendant brought his Writ of Error to reverse the Judgement given for Ralph; and when the Record was certified, the Judges of the then Kings Bench would not proceed. And after∣wards the Judges of the Common Pleas upon a motion, and before another Writ of Error brought, amended the Mistake of the Clerk. And Justice Walmsley would have committed Keale the Clerk to the Fleet, for his carelesness, but afterwards the Amendment was with∣drawn by the Court, and upon further advice, the Roll made as it was before.

An Action of Debt was brought upon a single Bill for Payment of * 1.233 Money upon Demand, and the Plaintiff declares generally, that he often had requested, &c. and Serjeant Harris demurres to the De∣claration; and the opinion of the Court was, that he ought to plead: yet if the Defendant had demanded Oyer of the Bill, and upon that have demurred, it had been a good Demurrer, because one spe∣cial

Demand was in the Bill, and no special Demand alleadged in the Count.

MIch. 3. Iac. Burnell versus Bowes. Action of Debt brought up∣on * 1.234 a Bond, and the Plaintiff in the Imparlance Roll had coun∣ted upon a Bond made the tenth of March, and an Imparlance there∣upon untill the next Terme, and in the next Terme he declared, as of a Bond made the tenth of May, and the Defendant pleaded per Dures, and it was entred of Record, and the next Terme after Entry thereof the Plaintiff moved that that Mistake might be amended, and at first it was denied to be amended, because the Defendant had pleaded to it, and by that Amendment his Plea should be altered, as if he had pleaded, that it was not his Deed; and the cause of his pleading that Plea was the the Mistake, and if that Mistake should be amended, he would be trised and overthrown; and upon the first motion it was de∣nied to be amended, but afterwards granted to be amended by the whole Court, for the Imparlance was entred, Hillar. first of James, and the Issue was Pasch. second of James, but the Defendant was ad∣mitted to plead a new at his pleasure.

MIch. 3. Jac. rotulo 2575. Fitch versus Bissie. An Action of Debt * 1.235 brought upon an Obligation, with a Condition to pay Money yearly, according to the forme and effect of the Indenture made be∣tween the Plaintiff and Defendant; the Defendant pleads that there was not any such Indenture made between the Plaintiff and Defen∣dant, as is in the Condition supposed: and the Plaintiff demurrs upon that Plea, for that the Defendant is estopped to plead that Plea.

KIng and his Wife Executrix of J. Wright, Plaintiffs, brought a Scire facias after the said Executrix came to full Age, against Death and his Wife, Administratrix of W. D. to have Execution of a Judgement had by J. D. and H. E. Administrators, during the mino∣rity of the Executrix, upon a Bond entred into, to the Testator, and whether a Scire facias lay by the Executrix or no, was the Question; and by the better opinion of the Court it did not lie.

MAyor and Burgesses of Linn Regis, in Norfolk, Mich. 10. Jac. rotulo 2413. brought an Action of Debt upon a Bond against one Pain, and it was (Ad respondendum Majori & Burgensibus de Linn Regis in Comitatu Norfolciae,) Pain pleads, that it was not his Deed; and a special Verdict was found, that the Mayor and Burgesses were incorporated by the name of Majores & Burgenses Burgi de Linn, & non per aliud. And whether the omission of this word (Burgi) should barr the Plaintiffs, was the Question: and Judge∣ment

was given by Cook, Warburton, and Nichols, for the Plaintiff; for Cook said, that if the essential part of the Corporation was named, it was sufficient: and in this case the Mayor and Burgesses was one essential part, and Linn Regis is another essential part, and those two were duly expressed, and sufficient to maintain the Action; and Cook said, that those words (Et non per aliud) shall be intended to be Non per aliud sensum & non literae; and of the same opinion were the other Judges there.

NIchols versus Grimwin, Mich. 12. Jacobi, rotulo 1609. or Hill. in the same year, rotulo 3027. The Plaintiff brought his Action up∣on a Bond, the Condition whereof was performance of an Award, for and concerning all matters, Causes, Suits, and Demands whatsoever, had, moved, or depending, &c. so as the said Award be made, &c. The Defendant pleads no such Award made, the Plaintiff by Reply sets forth the Award, it was made De praemissis, to wit, that the said I. should clearly depart with, and avoid out of her House, in which she then lived, and that the said I. should carry away all the Hay, &c. The Defendant re-joynes, and sayes, no such Award; and a Verdict for the Plaintiff; the Defendant moved in Arrest of Judgement; for that the Award was made but of one part, and so void; but Judge∣ment was given for the Plaintiff; for though the Award be made but of one part, yet if the Defendant may plead it in Barr of the other Action brought against him for the same cause, in all such cases the Award is good. But my Lord Hubbart and Nichols took this Difference upon these words (so that) for then the Arbitrators must make their Award of all such things which are in Controversie, and in such manner as the Condition prescribes; but if the Parties put themselves by Parroll, if the Arbitrement be made of one part it is good. And Hubbart said, that in all Arbitrements, whether by Bond, or Parroll, they ought to be reciprocal, and to be made in such man∣ner, that it may make an end of all Controversies between the Par∣ties. For if a man be bound in a single Bill, and put it to Arbitrement, and the Arbitrators order that the Obligor pay to the Obligee a summ, and do not award that the Obligee shall seal a Release, or that the Money paid shall be in Discharge of the said Bill, the Award is void. But in Barpools case the Submission was by Parroll, for Money due before the Submission; and the Award was, that he should pay such a summ for the same Debt, and good; for the Award shall inure to a Dischage. See Paschals case, 8. Rep.

STutfield Plaintiff, Grony Defendant; in Trinity Terme, 13 Jacobi, rotulo 859. The Defendant pleads to a Bond taken by the Sheriff for his Appearance in the Kings Bench, Die Sabbati proximum post

Oct. Martini, that he appeared at the Day; and the Court of Com∣mon Pleas gave him a Day to bring in the Record of his Appearance by Mittimus issuing out of the Chancery, the Record was certified, Videlicet, that he appeared Lunae post xv: am Martini, which was after the Day, yet it was adjudged good; for if the Appearance was the same Terme, it is good, though it be not the same Day.

SErle against Harris, Trinity Terme, 9. Jacobi, rotulo 1321. Judge∣ment is there entred by Non sum inform. against Harris, Harris brings a Writ of Error upon that Judgement, and assignes for Error, that the Record was Fr. Harris de Brownton. and the Original filed to warrant that Judgement was Fr. Harris de Browton, and there reversed for that Variance.

HAmond versus Jethrell, Mich. 8. Iacobi, rotulo 2354. Hamond brought his Action of Debt upon a Bill obligatory, for the Pay∣ment of Money, and no Day limited in the Bill for the Payment thereof: but after the words (In witness whereof, &c.) these words were written, Nevertheless it is agreed, that the said Jethrell shall not be hereby compelled or required to pay the said 30. l. untill the said Jethrell have recovered against B. Hudson the summ of 30. l. or more, upon a Bond of 40. l. wherein the said Hamond, &c. The De∣fendant demands Oyer of the Bill, and hath it, Memorandum that J. W. J. &c. and demurrs in Law, and shews that the Plaintiff had not alleadged any Day of Payment, nor when it was requested; and the Declaration adjudged good notwithstanding: and my Lord Cook held, that whatsoever comes after these words, In witness, &c. is no part of the Bill, but words after, In witness, &c. may be a Condition, and must be pleaded, and not demurred upon: and 21 Henry the sixth, direct in this point, and so the third Report. An Action of Co∣venant brought upon words of Covenant in Indenture after In witness, &c. and above the Seal, and held good and maintain∣able.

SAaint-John versus Cracknell, Mich. 12. Jacobi, rotulo 1153. An Action of Debt was brought upon the Statute of the 24. of Henry the sixth for 40. l. for Election of Burgesses in Parliament, and it was tried, and a Verdict for the Plaintiff. And Serjeant Moor moved the matter insuing in Arrest of Judgement. First, the Statute directs the Sheriff to issue out his Warrant to the Mayor, if there be one, and if no Mayor, then to the Bailiff: and it appeared by the Court that the Sheriff made his Warrant to the Bailiff, and do not shew that there was no Mayor there: and the Exception disallowed; for if there was a Mayor, the Defendant ought to shew it by Plea. Secondly, that the

Plaintiff doth not alleadge that the Warrant made to the Bailiff was under the Sheriffs Seal, as the Statute directs: and the Court held the Count good notwithstanding, because the Declaration was, that the Sheriff by vertue of a Writ to him directed, made his Warrant to the Bailiff: and if it was by vertue of the Writ, it shall be intend∣ed to be under his Seal.

HOpe versus Holman, Mich. 10. Jacobi, rotulo 3612. Debt upon an Obligation, the Defendant pleads a forreign Attachment in London, and the Plaintiff demurrs, and the Exceptions were; first, that the Defendant had attached the Moneys in his own hands by way of Retainer, and so the Custome unwarrantable. Secondly, it appeared that Judgement was given in the Mayors Court, by the De∣fault of him in whose hands the Money was attached: and it ap∣peared, that the Defendant which brought the Action in London, and he in whose hands the Attachment was made, and that made De∣fault, was the same person; and it is a contrariety, that the same per∣son should appear and not appear, and a Prescription for that is naught; and the Custome is in London, that the Recoveror in London ought to finde Sureties, that if the Debt be discharged within a Year and a Day, then to pay the Money, and did not appear by the Record, that he found Sureties, which was an incurable Fault, and so adjudged by the Court.

POtter versus Tompson, Hill. 14. Jacobi, rotulo 3449. To one Obli∣gation with Condition to make Assurance of Lands to such Uses therein expressed; the Defendant pleads, that he made a Feofment of the same Lands to other Uses, which the Plaintiff accepted; the Plaintiff demurrs, and it was adjudged a naughty Plea; for he ought not to vary from the Condition.

HIggenbotham versus Armot, Hill. 8. Jac. rotulo 906. Action of Debt brought upon a Retainer, in the Office of an Husband∣man for one year, and so from year to year; the Defendant wages his Law, and at the Day to wage his Law, the Court refused to accept it, for that he ought not to wage his Law for Wages; yet if the Re∣tainer were not for a year at least, the Court seemed to be of opinion that he might wage his Law.

VErnon versus Onslow, Pasch. 12. Jac. rotulo 1047. Upon an Action brought upon a Bill for 80. l. the Defendant demands Oyer of the Bill, was Pro octogesimis libris, and to that the Defendant demurrs, and Judgement for the Plaintiff. Hutton cited the Case in Cooks 10. Rep. Rowlands Case. And another in Mich. 44. & 45. Eliz.

rotulo 131. Proseptingentis libris, and the Bond was Proseptungentis libris. And another, Mich. 11. Jac. upon a Bill for seventeen pounds, and adjudged a good Bill.

YOung versus Melton, Trin. 10. Jacobi, rotulo 3434. An Action brought upon a Bond for performance of Covenants; the De∣fendant pleads Conditions performed. The Assignes, the Breach for non-payment of Rent, and pleads in this manner, that in December he demised to the Defendant one Wine-Cellar, &c. for one year; and if the Defendant would hold the Wine-Cellar for three years paying 40. l. yearly during the said terme; and alleadges non-payment of the Rent of on Quarter in the first Year: and the Defendant demurrs; and the Court were of opinion, that the reservation had reference as well to the first year, as to the two years following: and in that case Cook said, that if a man demise, &c. reserving Rent to himself, the Heir shall not have the Rent, but if the Rent be reser∣ved generally, the Heir shall have it.

WHickstead versus Bradshaw, Pasch. 14. Jac. rotulo 2175. There was Judgement entred against the said B. and after the Bail of Bradshaw, brought a Habeas Corpus to the Marshalsey, Bradshaw be∣ing a Prisoner there, to have his Body before the Judges of the Com∣mon Pleas to be committed in Execution, in Discharge of the Bail, but before the Returne of the Habeas Corpus, the said Bradshaw had brought a Writ of Error returnable the Day following; and when he came to be committed, the Court doubted, that their hands were tied by a Writ of Error, by reason he could not be committed upon the Judgement, and yet they would have discharged the Bail, if they knew which way, therefore Quaere.

GErrard & al. versus Dannet, Hill. 9. Jac. rotulo 2015. Judgement was had upon a Bond by Non sum inform, and a Writ of Error brought for that the Christian name of the Defendant, Attorney was left out in the Imparlance Roll; but it was in the Roll, whereupon the Judgement was entred, and a Warrant of Attorney entred ac∣cordingly: and the Court was moved, that it might be put into the Imparlance Roll, which was granted upon sight of the Judgement Roll, and Warrant of Attorney entred.

If a man be bound by Award to pay one 20. s. And I at the Day offer it, and he refuseth it, or comes not to receive it; I must plead that I was ready to pay; and shall not plead an Ʋncore prist. because it is upon a collateral matter.

An Obligation was made to pay 10. l. 8. s. and eight (not saying Pence, or any thing else) An Action of Debt lieth for the 10. l. 8. s.

WIlde versus Vinor, Trin. 7. Jac. rotulo 1629, or 2629. Debt upon an Obligation to perform an Award. The Defendant pleads, that the Arbitrators made no Award; the Plaintiff replies, that the De∣fendant by Writing did revoke, and null the Authority of the Arbi∣trators. Foster held the Bond was forfeited, although he might re∣voke, the Plea was that he did discharge the Arbitrators against the form of the Condition. My Lord Cook held, that the Power was countermandable, if the Submission be by Writing, the Counter∣mand must be by Writing, if by word I may countermand by word. If two binde themselves, one cannot countermand alone. If Obligor or Obligee disable by their own Act to make the Condition void; the Bond is single, 14 H. 7. If I am bound to infeoff A. and I marry her before the Day, the Bond is forfeited, 18 E. 4. 18. 20. the great doubt was, because no express notice, but notice was implied. And the Bond forfeited, because he did not stand to it. Judgement for the Plaintiff.

PArker versus Rennaday, Trin. 6. Jac. Action brought upon a Bond for 60. l. the Bond was in Italian in these words, In cessanta libris, and held a good Bond for 60. l.

O. K. ux. ejus Admin. versus Needham, who was bound to the Inte∣state in a Bond, and pleads, that Administration of the Intestates Goods was committed to him by the Archbishop, the Intestate ha∣ving Bona not Abilia, before it was committed to the Plaintiffs Wife. The Plaintiff replies, that the Administration committed to the De∣fendant was revoked and made void; to which the Defendant de∣murrs, pretending his Administration to be a Release in Law, but it was otherwise adjudged. But if the Debtor were made Executor, then the Debt is released: like unto an Administrator during the mi∣nority, he may do all for the good of the Infants, but nothing to their prejudice, if an Executor marry the Debtor, it is no Release in Law: Judgement for the Plaintiff by the whole Court.

LAwrance and Althams case; if I have no means to gain my Right but by Action if I release my Action, I release the thing it selfe, because I release my means to come to my Right. If I release all Actions I may have Jus prosequendi. A Release made by the Testator shall be no Barr to the Executor to bring a Writ of Detinue, because it continues a wrong still to the Executor. A Bond to pay Money at Michaelmas, may be released because it is a Debt, otherwise it is of a Rent reserved by Lease: the like it is of a single Bill to pay Money at four Dayes, if the first Day be broken no Action, untill all the Dayes be past; but in case of a Lease, after the first Day, Debt doth lie; in

the first it is a Debt, but not in the other. Quarrels, Controversies, and Debates are all one, that is all Causes of Quarrels, Controver∣sies, and Debates, are more large then Actions: and Suits are more then q. c. & d. and by Release of Suits, Executions are gone, Release of Duties Executions are gone: neither Fraud nor Might can take a Title without Right. Demand is most large, and by it Rents are gone, Executions gone, Incidents gone, as Releif, Warranties gone, all Causes of Demand gone, Actions and a mans Right gone.

When a condition is to arbitrate of all matters between, &c. there if the matters be not made known to the Arbitrators, they are not bound to arbitrate more then they know for, if it appear to the Court that all matters committed to the arbitrators be not arbitrated, the Award is void; but if the submission be of all matters between, &c. so that now all must be arbitrated, or else it is void: and in every award there must be satisfaction of that which was awarded.

POwel versus Crowther trin. 9. Jacob. rotulo 313. det port e un. three executors which appeared at several terms, and plead seve∣rally, ne unques execut. the plaintiff proceeds to triall against one of them, and was non-suit. And then one of the other defendants take the record down by proviso, and the plaintiff was again non-suit, and both the defendants desire costs, before the third issue was tried: but costs was onely given to the first, and denied to the second, for his trial was erroneous, because by the first triall the originall was deter∣mined.

If a defendant wage his law, no excuse of sickness, or water, can save his default; but in real actions he may excuse himself by such acci∣dents.

If the condition of a Bond be to discharge a messuage of all incum∣brances, there one may plead generally that he did discharge it of all incumbrances; but if it be to discharge it of such a Lease, there he must shew how.

NOrton versus Sims Pasch. 11. Iacob. rotulo 346. debt upon a Bond entred into by an under Sheriff to his high Sheriff, that the under Sheriff shall not meddle with the execution of executions, and shall discharge the Sheriff from all escapes, and the plaintiff shewes a breach in the under Sheriff for an escape; by reason whereof, the Sheriff paid the debt and damages: question was, whether this cove∣nant be good, or not Judgment for the plaintiff. A high Sheriff may make an under Sheriff to be at will. An under Sheriff hath the same authority an high Sheriff hath: it is a void condition to save a man harmless from all men, but good, if it be special: if the condition be to discharge and acquit, I must shew how: An under Sheriff was before

the Conquest. A Bond made to the Sheriff by the under Sheriff, to discharge of all escapes, this is good and lawful. If any part of the condition of a Bond be against a Statute-law, it is void in all: but o∣therwise, if part be against the common-law. See Boswels case 10. Rep. when a man is under Sheriff he may do all ministerial things the Sheriff may do, but not judicial. If the under Sheriff will covenant, that he will not meddle with executions above 20. l. this covenant of his own accord is good: if a Sheriff binde his under Sheriff, that he shall not return Venire Facias, nor intermeddle with executions, untill he be acquainted, it is against Law, and naught by all the Court. A Bond to perform divers Covenants, some against Law, and others law∣full, it is good for lawfull things, and void for the rest.

The Death of one of the Parties in an Original Writ doth abate the Writ, it is otherwise in a Judgement. If Husband and Wife sue a Scire facias, and the Husband dieth, the Scire facias shall abate; for it is no more a judicial Writ, but as it were an Original to revive a Judgement.

The Court were of opinion in the case of Sir H. Dowckray, that where he had delivered Money to his Servant to provide Victuals; and the Servant buyes the Victuals in his Masters name, and payes not for them; and afterwards an Action is brought against the Master for the Money, and he offers to wage his Law; and the Court held, he could not safely wage his Law, because the Victuals came to his own use, and therefore he is chargeable, and must have his Remedy against his Servant. But if the Master did forbid the Tradesman to deliver any Wares, except his Man paid for them; in that case if the Trades∣man deliver Wares, the Master may safely wage his Law, as it was ad∣judged in Sir H. Comptons case.

MAntell versus Gibbs, Trin. 7. Jacobi, rotulo 1254. An Action of * 1.236 Debt brought upon an Obligation; to which the Defendant pleads, that an Estranger was imprisoned by another stranger, and kept in Prison, untill the Defendant, as Surety of the stranger, made the Bond; and it was held a naughty Plea, and a Repleader awarded.

ALston versus Walker, Mich. 6. Jacobi, rotulo 1342. Land was Mort∣gaged, * 1.237 and a Promise, that if the Mortgager at such a time and place should pay the Money to the Mortgagee, his Heirs, or Assignes, that then the Mortgage should be void; the Mortgagee died, and the Money was paid to his Executors; and it was adjudged to be no per∣formance of the Condition, for the Executor was not named, and the Money ought to be paid to the Heir, who should have the Land, if the Money were unpaid, and not the Executor.

STurges versus Dean, Trin. 7. Jacobi, rotulo 2915. An Action of * 1.238 Debt brought upon a Bill for Money to be paid within fifteen Dayes after his Return from Ierusalem, he proving his being there; the Defendant pleads, that he did not prove-his being there; to which the Plaintiff demurrs, he making proof, that is, if it be true. Sir Edward Cook and Daniel held, that the proof should be made up∣on the Triall, and the proof should be subsequent. But Warburton and Foster held, that the proof shall be precedent, because it was re∣strained to a certain time: but it had been otherwise if no time had been appointed.

NOrton versus Goldsmith, Trin. 7. Iac. rotulo 3100. An Action of * 1.239 Debt brought upon an Obligation, with a Condition that Cham∣berlain, his Under-sheriff, should not meddle with Executions beyond such a summ, and alleadges a Breach for intermeddling with Execu∣tions, contrary to the Condition; and the opinion of the whole Court was, that the Bond was void.

PAin versus Nichols, Trin. 8. Iac. rotulo 134. An Action of Debt * 1.240 brought upon the Statute of Ed. 6. for not setting forth of Tithes, and the Plaiutiff declared as well for Prediall Tithes, for he might well bring his Action, and for other Tithes, as of Lamb and Wooll, for which no Action would lie, and upon a Triall the Jury found for all, as well for those that would, as would not bear an Action; and after a Verdict, this Exception was taken, and Judgement arrested.

BOoth versus Davenant, Trin. 8. Iacobi, rotulo 805. A Bail taken in * 1.241 the then Kings Bench, and an Action of Debt brought upon that Recognisance, which was, that if it happened the Defendant in that Action to be convicted, then the Manucaptors granted, and every of them granted, that as well the Debt as Damages, and Costs, which should in that Action be adjudged the Plaintiff, should be levied up∣on their Lands and Chattels. And in Easter Terme 7 Iacobi, the De∣fendant upon a Capias ad satisfaciendum, awarded against him, did not render his Body, but afterwards Mich. 7. Jacobi, he did render his Body, and the Court accepted of it, and discharged the Bail: and whether the Bail should be discharged, or not, was the Question; and the Court held, the Bail should be discharged; and Judgement was given for the Defendant. * 1.242

RAyson versus Winder, Pasch. 16. Jac. rotulo 1200. An Action of Debt brought upon an Obligation, for performance of an A∣ward, which was void in part, and good in part; and the Breach al∣leadged for that part which was good, and the Award was to pay

Money, but no time of Payment alleadged in the Award, and after∣wards it was demanded, and such Demand was held good.

KIng versus Law, Trin. 16. Jac. rotulo 507. An Action of Debt * 1.243 brought upon the Statute of Perjury, in which the Plaintiff was non-suit; and the Defendant moved to have Costs upon the Statute of 23 H. 8. upon these words, or upon any Statute for any Offence or Wrong personally, immediatly supposed to be done to the Plaintiff or Plaintiffs; and the Plaintiff after Appearance, &c. be non-suited, &c. but the whole Court held, that he should not recover Costs upon that Statute, because the Statute of 5 Eliz. was made long after the Statute of 23 H. 8. and upon the Statute of 7 Jacobi, the Defendant shall not recover Costs; for if the Plaintiff had recovered, he should have recovered no Costs, and so no Cost was given to the Defendant in that Action.

PAnnell versus Metcalfe, Trin. 17. Eliz. rotulo 2722. Action of * 1.244 Debt brought against the Defendant as Administrator, and he pleads a Recovery had against him in the City of Norwich, and al∣leadges a special Custome, that time out of minde, that they had Cog∣nisance of Pleas; and in pleading the Custome, he omitted this word Cur, and held naught.

FEtherston versus Tapsall, Mich. 13. Jacobi, rotulo 3409. The Im∣parlance * 1.245 was entred, and Hill. 13. Jacobi, rotulo 715. The Issue was entred. An Action of Debt was brought upon a Bond, and in the Im∣parlance the Bond was alleadged to be made at Newcastle, and in the Issue Roll it was alleadged to be made at York, and tried; and after∣wards a Writ of Error was brought, and the Record was certified, and upon a Scire facias that Error was assigned; and the Court of Common Pleas was moved, that the Imparlance Roll might be a∣mended, but the Court would not grant it.

GAtes versus Smith, Mich. 16. Jac. rotulo 945. An Action of Debt * 1.246 brought upon an Obligation to perform an Award; the Defen∣dant pleads, that the Arbitrators made no Award; the Plaintiff by way of Replication sets forth the Award, and that the Arbitrators had awarded the Defendant to pay such a summ, and that he should be bound with another in such a summ, and shews that the Defendant did not become bound with the other; and the Defendant demurred, for because it was out of the Submission, and it was not in the De∣fendants power to perform it.

JAckson versus Comin, Trin. 16. Jac. rotulo. An Action of Debt * 1.247 brought upon an Obligation to perform an Award, so that the Award be signed, sealed, and delivered: and in pleading of an Award, upon the Defendants saying, there was no Award made; the Plaintiff omitted in his Plea to set forth, that the Award was signed, and it was tried, and a Verdict for the Plaintiff; and this was moved in Ar∣rest of Judgement, and stayed by the Court.

CLempson versus Bate, Trin. 17. Iacobi, rotulo. An Action of Debt * 1.248 brought upon a Recovery in a Court-Baron, and declares, that every Court was held before the Steward onely, and not before the Suitors, and a Declaration there for Rent reserved upon a Lease for years behinde, and the Court held the Declaration void, and that these words, according to the Custome of the Mannour time out of minde, would not help the Declaration; and the Defendant was ad∣mitted to wage his Law presently, if he would.

COventry versus Windall, Hill. 13. Iac. rotulo 2588. An Action of * 1.249 Debt brought upon a Writing, thereby shewing that whereas one T. before the sealing of that Writing had become bound to the Defendant, to stay with him, and serve him as his Apprentice for the terme of eight years, and Woodall covenants with the Plaintiff, that he before such a Day would receive and take the said Apprentice for the residue of the said terme of eight years then to come, and would teach, keep, and imploy the said Apprentice in his House and Service in the Art and Mystery of Surgery, which the said Woodall then used, and professed, if the said I. should so long live, and bindes himself in 20. l. the Plaintiff alleadges that the Defendant did receive the said Apprentice in his Service at London, &c. and further sayes, that the Defendant within the time, to wit, such a Day and Year, sent the said Apprentice in a certain Voyage, in a Ship called the Dragon, from the House of the Defendant, unto the East Indies, there to stay; and that the Apprentice did there arrive, and doth yet there remain, for which he brings his Action. The Defendant pleads, that he for the better instruction of the Apprentice sent the Apprentice to the In∣dies, to use and exercise his Art; and to this the Plaintiff demurrs; and Judgement for the Plaintiff, that the Defendant could not send the Apprentice out of England, except himself went with him, al∣though it be in his own House, and own proper Service, but clearly he might send the Apprentice to Chester, or any other part of Eng∣land.

GArrard & al. versus Dennet, Hill. 9. Iacobi, rotulo 516. The De∣fendant after a Judgement entred, brought a Writ of Error, and

assigned for Error, that the Christian name of the Attorney for the Defendant was left out in the Imparlance Roll, but it was in the Judg∣ment Roll, and also in the Roll with the Clerk of the Warrants was perfect, to wit, Henry Snag; and therefore the Imparlance was made perfect, and Henry put into the Imparlance Roll, after assignement of Error by the Court.

COwchman versus Hawtry, Hill. 14. Iac. rotulo 2167. Action of * 1.250 Debt brought against a Bailiff of a Liberty, upon a Recovery in a Court of Record. The Defendant pleads no such Record. The Plain∣tiff brings the Record into the Court: and there were divers Vari∣ances between the Record upon which the Plaintiff declares, and the Record certified, Videlicet, in the name of the Bailiff and Continu∣ances; for in the Record certified there were divers Continuances which were not in the Record in Court, and divers other Differences; but the Judgement and Recovery of the Debt and Damages agreed, and the other Variances were not material, and Judgement was given for the Plaintiff notwithstanding▪

DOminus Rex Iacobus versus Castle. An Action of Debt brought upon an Obligation taken in the Kings name in the Court of Re∣quest, * 1.251 with a Condition to appear before the Master, &c. and the Declaration is generall, that the Defendant such a Day and Year by his Obligation did acknowledge himself to be bound to the King in the said 60. l. to be paid, &c. and it was adjudged naught, for it did not appear to be taken in a Court of Record.

CHilde versus Peisley, Hill. 14. Jac. rotulo 2184. Habeas Corpora re∣turned * 1.252 by the Sheriff, and these words omitted, Videlicet, Quili∣bet Iur. per se seperatim Attach. est per Pleg. I. D. & R. R. exitus eor. cujuslibet x. s. R. W. & M. L. Vic. and it was amended by the Court.

ANdrews versus Delahay an Attorney of the Common Pleas, * 1.253 Hill. 14. Jac. rotulo 3057. A Bill filed against the Defendant as an Attorney, upon two Bills obligatory for payment of Money, and one of the Bills was not payable, and due at the time of exhibiting the Bill: and the Defendant pleads to Issue, and the Cause received a Triall, and a Verdict for the Plaintiff; and afterwards the Defendant in Arrest of Judgement moved, that one of the Bills were not pay∣able at the time of exhibiting the Bill against him, and thereupon the Plaintiff remitted his Damages, and had Judgement for the Bill that was due.

HArris versus Cotton. As long as the Vicar occupies his Gleab-land * 1.254 in his own hands, he shall pay no Tithes; but if he demise it to another, the Lessee shall pay Tithes to the Parson that is impropriate. If the Vicar sow the Land, and die, and his Executor takes away the Corn, and doth not set forth his Tithe; and the Parson brought an Action of Debt upon the Statute of 2 Ed. 6. and the Court seemed to incline that it would lie.

DArrell versus Andrew, Mich. 14. Iaeobi, rotulo 2327. An Action of * 1.255 Debt was brought in London for Rent reserved, upon a Demise of Lands in Cawson in the Parish of D. in the County of War. and of one capital Messuage. The Defendant pleads Extinguishment of Rent, because the Plaintiff had entred into one House called the Wooll∣house, and into one Buttry at the upper end of the Hall of the said House, and in one House called the C. parcell of the Premises before demised, upon the Defendants motion, and had expelled the De∣fendant out of the Possession thereof, and the Venire facias was of Cawson, within the Parish of Dale, and Exception taken, because it was Infra Parocham: but my Lord Hubbard said, that where Land is laid in Dale, in the Parish of Dale, that the Venire facias may be made of Dale, or within the Parish, or of the Parish, and both good.

HAll versus Winkfield. An Action of Debt brought in London for a * 1.256 100. l. and the Plaintiff declared upon a Recognisance taken at Serjeants Inn in Fleetstreet, London, before the Cheif Justice of the Common Pleas, and afterwards inrolled in the Common Pleas at Westminster, in Middlesex. And the Defendant demurred to the De∣claration, and the Question was, whether the Action should be brought in London or Mid. And note the Recognisance as soon as it is acknowledged is a Record, and shal relate to the time of the taking to binde. Serjeant Hutton said, that a Scire facias may issue upon a Re∣cognisance taken out of Court into any County, and none is bound to sue Scire facias where the Recognisance is taken: but after it is in∣rolled in the Court, an Action of Debt shall be brought in the Coun∣ty of Middlesex. At the Common Law the Execution was by Levari facias, and after the Year an Action of Debt; it is not a Recognisance consummate, untill it be inrolled in the Court, yet it taketh its life by the first acknowledgement: for if you have an Action of Debt or Trespass in a forrain Shire, when you have recovered Debt or Trespass, your Debt or Trespass is now altered and made new. My Lord Hub∣bard held, that if I bring Debt in Norfolk, and I have Judgement, and bring an Action of Debt upon that Judgement, it must be brought in Middlesex, and so in Trespass. The Inrolment of the Recognisance is but a fortification of the Recognisance.

MOrtimer versus Freeman, Hill. 9. Iacobi, rotulo 2001. An Action * 1.257 of Debt brought, for not setting out of Tithes, to which the Defendant pleads, Nil debet per patriam, and to prove that the Plaintiff was not Parson, he shewed a Deprivation of the Plaintiff for Drunkenness by the high Commissioners: and the Court held, for such a common Fault, after Admonition, the high Commissioners might deprive a Minister; but because this Crime of Drunkenness was committed before the general Pardon, and that the Sentence was given after the Pardon, the Sentence was void. For Wooll or Lamb no Action lieth upon the Statute, for they are not predial Tithes: nor for small Tithes.

If an Action of Debt be brought upon two Contracts, and both * 1.258 found for the Plaintiff, in that Case the Jury may tax Damages in∣tire, but the safer and better way is to sever the Damages; for it may come to pass, that an Action will not lie for one of the two, and if it will not lie, then your labour and charge is lost.

An Action of Debt brought for 300. l. upon an Obligation. The Defendant after a general Imparlance demands Oyer of the Bond, and pleads specially, that it was but for 30. l. and it was not allowed after a general Imparlance. And the Defendant pleaded, that it was not his Deed, which was the proper Plea in that Case.

PReston versus Dawson, Pasch. 11. Jacobi, rotulo 2310. An Action * 1.259 of Debt brought upon a Bond, for performance of Covenants in an Indenture, in which Indenture was this Covenant following, that the Vendor should make further Assurance at the cost and charges in the Law of the Purchasor; and for Breach it was alleadged, that a Note of * 1.260 a Fine was devised and ingrossed in Parchment, and delivered to the Vendee to acknowledge the Fine at the Assises, which he refused to do, and the Plaintiffs Breach was demurred upon, because he did not offer Costs to the Vendee, and the Court held it to be idle.

GLyver versus Lease, Trin. 11. Jac. rotulo 734. An Action of Debt * 1.261 brought upon a single Bill. The Defendant pleads, that he did infeoff the Plaintiff of Lands, in satisfaction of that Debt, and the Plaintiff demurred upon it: and upon reading the Record, ruled to be a naughty Plea to a single Bill, otherwise it had been upon a Bond, with a Condition to pay Money.

WIlliamson versus Barnsley, Trin. 12. Jac. rotulo 1291. An Acti∣on * 1.262 of Debt brought upon an Obligation, with a Condition to perform Articles, that he before Easter Terme next following, at the Request of the Plaintiff, should surrender, and yeild up to the Plain∣tiff, his Letters Patents of the Stewardship of Bromsgrove, to the in∣tent

that he might renew the said Letters Patents in his own name; and it was objected at Barr, that the Office of a Steward of a Court Leet, or Court Baron, was within the Statute of 5 E. 6. made against buying of Offices that were for Ministration: and so Winch held the Stewardship of a Leet to be within the Statute, and so was adjudged in Grays Case; but the Question was, whether the agreement to sur∣render, be within the Statute or no, the words of the Statute are, to have and injoy; and Winch said, it was within the Statute; and so the Office of a Cursitor was within that Statute.

Exception was taken to an Action of Debt brought upon the Sta∣tute of E. 6. for not setting out of Tithes, because the certainty of Loads of Corn were not expressed, but it was held good notwith∣standing.

HAwes versus Birch, Hill. 12. Jacobi, rotulo 1843. An Action of * 1.263 Debt brought upon a Bond of 6. l. for the payment of 3. l. upon the 16. of April. The Defendant pleads, that an Estranger at the Defendants request, the said 16. of April, made an Obligation to the Plaintiff in lieu of the first Debt, and adjudged naught by the whole Court, for one thing in Action cannot be a satisfaction for another thing in Action; but this being done by a stranger, is good by no means.

Pasch. 12. Jacobi. The Court was of opinion, that if Money be * 1.264 tendred, and none ready to receive it, and afterwards he to whom the Money is payable, demands the Money, and the other refuse to pay, and afterwards an Action is brought, and a Tender pleaded, the Court held, that the Defendant should pay Damages from the time that the Money was demanded.

FLeet versus Harrison, Hill. 13. Jac. rotulo 841. An Action of Debt * 1.265 brought against two Defendants, one of them pleads Nil debet per patriam, and the other lets a Judgement go by Default, and he that waged his Law, at the Day appointed performed it; and Judge∣ment that the Plaintiff should take nothing by his Writ, for a Re∣spectuatur of the Judgement was entred, untill the other had done his Law.

WIlliamson versus Spark, Mich. 13. Jac. rotulo 3511. Upon a cire facias brought against the Bail upon an Attachment of * 1.266 Priviledge. The Defendant pleads a Release made after the Verdict, and before Judgement, which was before the Recognisance was for∣feited: and if the Recognisee may release before the Damages are ascertained, or no, was the Question, and it seemed he might.

An Action of Debt brought against a Baker, for a Fine imposed on

him in a Court Leet, and an Exception was taken, because it was not alleadged that he sold Bread against the Assise of Bread made to sell; for a man may make and bake Bread for his own use, under the Assise limited.

BAcon versus Pain, Trin. 14. Jac. An Action of Debt brought, and * 1.267 declare, that such a Day and Year the Defendant was a Brewer, and for one Year then next following, and that the Defendant the said Day at K. bought of the Plaintiff the fourth part of the Grains that the Plaintiff that Year next following should make in brewing, for 3. l. to be paid upon Request. The Defendant pleads, that he ought him nothing, and after a Triall, an Exception was taken to the Declaration, because the Plaintiff did not aver that he made Grains in that Year.

LOrd versus Huxly. An Action of Debt brought on a Judgement thereupon, and the Defendant taken in Execution upon that * 1.268 Judgement, and afterwards the Plaintiff became Felo dese, by which the Almoner seised of all his Goods, and afterwards the Almoner would have acknowledged satisfaction of the Debt and Damages in that Judgement, and doubted that he could not.

SAwyer versus Crompton, Hill. 14. Jac. rotulo. The Plaintiff brought an Action of Debt for Costs given before the Judges of the Mar∣shalsey, * 1.269 newly erected, 9 Jac. by Letters Patents of the same King within the Virge. And the Plaintiff declared, that whereas at the Court of the said King, for the Houshold held at S. in S. within the Virge of the Houshold then at Whitehall, such a Day and Year be∣fore T. B. Knight Marshall, &c. and F. B. &c. Judges of the said Court, to hear and determine all Pleas personal within the Virge, be∣tween Persons not being of the Houshold, arising, by vertue of Let∣ters Patents, bearing Date such a Day and Year, in due manner made, came, &c. and the Court held a repugnancy in the Count, and the whole Court against the Plaintiff. If it had been brought upon the ancient Court, it must be between two of the Houshold, and they held that cost lay: and the Exception was, because the Plaintiff had not shewed the Grant to hold the Court.

If a Bond be made to one, and he doth not say in the Bond, that it * 1.270 shall be paid to the Obligee, in this case the Plaintiff must shew that it is to be paid to him, though not expressed in the Bond.

HOnne Executor of R. Hutton, and E. May, Pasch. 40. Eliz. ro∣tulo * 1.271 433. An Action of Debt brought upon an Obligation, with a Condition that the above bound T. G. or his Heirs do or shall at any

time before the Purification of the blessed Virgin, which shall be in the year 1596. according to the Custome of the Mannour, &c. Sur∣render into the hands of the Lord of the same Mannour for the time being, all those, &c. to the use of the said R. Hutton, his Heirs, and Assignes for ever, in such wise as the said R. Hutton his Heirs, and As∣signes, shall, or lawfully may by the custome of the Mannour be ad∣mitted, &c. or if after such Admittance the Premises shall be reco∣vered against the said Rich. his Heirs or Assignes by one W. K. with∣in four years, then if he shall pay upon notice, &c. The Defendant pleads, that the Plaintiff ought not to have his Action, because the said R. Hutton after the making of the Bond, and before the said Feast of the Purification, which was in the year 1696. to wit, the sixth of October 38 Eliz. at B. died. The Plaintiff demurs, and Judgement for the Plaintiff.

If one be indebted to one, and he dieth intestate, and after his * 1.272 Death Administration is committed to the Debtor, this is no Release of the Debt. If he marry the Executrix of the Debtee, and the Execu∣trix dieth, the Husband shall be charged with the Debt after her Death.

VAughan versus Chambers, Trin. 20. Eliz. rotulo 145. An Action * 1.273 of Debt brought upon a Bond; the Defendant pleads the Statute of Usury, and shews a corrupt Agreement for Money lent in the year 32. to be paid in 33. and afterwards in 35. a new Bond given for part of the first summ, and it was pretended that this Bond was void; but it was adjudged, because the first Bond was no Corruption, the later should not be.

LEech Attorney versus Phillips Executor of Phillips, rotulo 3415. * 1.274 An Action of Debt brought for soliciting a Cause in the upper Bench, and it was adjudged by the whole Court, that an Action of Debt for Solicitors Fees would not lie, but ought to bring an Action of the Case, and afterwards the Court held an Action of the Case would not lie.

PAsch. 12. Jac. Grove versus Jourdain. An Action of Debt brought * 1.275 against an Administrator, who pleads, that the intestate was in∣debted to him by Obligation, and that he retained the Money in his hands to satisfie the Debt. The Plaintiff replies, that the Money was not due and payable to him at the time of the Intestates Death; and that he took Administration after the Day of Payment; and if the Administrator had pleased he might have took Administration before the Day of Payment: and the Court held the Defendants Plea good, but he shall not have the Forfeiture.

CArrell versus Paske, Trin. 13. Jac. rotulo 1018. Debt brought * 1.276 upon an Obligation made at C. in the County of Surry. The Defendant pleads the Priviledge of Cambridge, granted to them by the Queen Eliz. for Scholars, Bachelours, Masters, and their Servants, upon Contract made within the University, and shews the Bond was made in Cambridge, and that he was a Servant of the Scholars, to wit, Bailiff of Kings Colledge in that University, and inhabiting within the Town of Cambridge, and Precincts of that University, and therefore a priviledged Person of the same: and upon reading the Record it seemed, that the Defendant being a Bailiff of the Colledge is not ca∣pable of the said Priviledge.

PReist versus Cee, Trin. 12. Jacobi, rotulo 2197. An Action of Debt * 1.277 brought upon a Bill, bearing Date 17 Novomber, 1604. by which Bill the Defendant did acknowledge himself to owe the Plaintiff 10. l. to be paid to the Plaintiff at two Payments, to wit, 5. l. to be paid up∣on the 19. of November then next following, and other 5. l. to be paid upon the 10. Day of December then next following. The Defendant pleads, it was not his Deed. The Jury finde it specially, that the De∣fendant the 17. of November, 1604. sealed and delivered to the Plaintiff one Bill obligatory, shewed to the Jury, bearing Date the Day and Year above, and finde the Bill, in haec verba, Be it known, &c. to be paid at two Payments, that is to say, 5. l. to be paid the 19. of November, which is the present of this Moneth, and the other 5. l. on the 10. of December. The Question was, whether the Bill maintain the Count for the first Payment, and adjudged it did.

RAwdon versus Turton, Trin. 13. Jac. 1011. An Action of Debt * 1.278 brought upon a Bond for Payment of Money such a Day. The Defendant pleads, that he the same Day made an Obligation for the Payment of the said Money another Day, which the Plaintiff accepted for the Money; and Issue taken thereupon, and tried for the Defen∣dant; and after the Verdict, the Plaintiff moved the Court to have Judgement, though the Verdict passed against him, because the Plea was insufficient, and that he confessed the Debt, but the Court would not grant it. The like Mich. 6. Jac. rotulo 1061. And the like Hill. 12. Jac.

CArter versus Freeman, Mich. 13. Jac. An Action of Debt brought * 1.279 upon a Bond, with a Condition that the Defendant should appear before the King at a certain Day, Videlicet, Die Jovis post Octobras Martini, and upon a Nul. tiel Record pleaded, the Defendant brought his Record of Appearance, Lunae post xvam. Martini; and this was held by the whole Court an Appearance at the Day in the Condition by the whole Court.

GRubham versus Thornborough, Hill. 12. Jac. rotulo 1773. An * 1.280 Action of Debt brought for Rent, and for a Nomine penae the Rent due 14 November, Anno 9. and no name alleadged for the No∣mine penae, therefore the Action would not lie for the Nomine penae, but it would for Rent.

PAsch. 44. Eliz. Elliot versus Golding. An Action of Debt brought, * 1.281 and Judgement given for the Plaintiff, and a space was left in the Roll for the Costs of the Judgement; and after the Year and a Day, a Scire facias was brought to revive the Judgement, and in the Scire facias the Costs are put in, and so Judgement by Default; and after∣wards a Writ of Error brought, and the Error was assigned, because there were no Costs put into the principal Roll; and afterwards the Record was removed, the Count was moved, that Costs might be put into the Roll, but it was denied upon the first motion, and afterwards Pasch. 13. Jac. it was denied by the whole Court.

BOnd versus Green Administrator. An Action of Debt brought a∣gainst * 1.282 him as Administrator; he pleads divers Judgements, a∣mounting to 670. l. and the Assignement of 100. l. Debt to the King by Deed inrolled; and he pleaded, that he retained his Debt in his hands, and he might have given this in Evidence, or pleaded it at the Liberty of the Defendant.

COoper versus Bacon. Action of Debt brought upon the Statute of * 1.283 E. 6. for Tithes, and the Plaintiff declares that one was seised of the Rectory of Elveley, alias, Kirkley, in Kingston upon Hull in his Demesne as of Fee; and being so seised such a Day, and such a Day, at Elveley, alias, Kirkley, did demise to the Plaintiff the said Rectory, with the Appurtenances, to have, and to hold, &c. for years, and that by vertue thereof he hath been, and is thereof possessed; and that the Defendant such a Day, and before, and alwayes afterwards hitherto had held and occupied 30. Acres of Land, in Swandland, in Kingston, in a place called T. and that the Tithes did belong to him. The Defendant pleads, Nil debet per patriam, and after a Verdict it was alleadged in Arrest of Judgement, that the Issue was mis-tried, because the Venire facias was of Elveley, alias, Kirkley, and it should have been of Swandland, where the Tithes grew.

CHapman versus Pescod, Trin. 11. Jac. rotulo 2106. An Action of * 1.284 Debt brought upon an Obligation, with a Condition to give and grant to him, his Heirs, and Assignes. The Defendant pleads, that he hath been ready to give and grant; and adjudged naught, for he must plead that he did it, otherwise it had been, if the words had been as Councel should devise.

MAncester versus Draper, Hill. 10. Jac. rotulo 2613. An Action of Debt brought upon a Bond, with a Condition to pay Money, if C. R. shall be then living, and shall before the same 20. Day of O. by due form and course in Law perfect, levy, and knowledge a Fine, and a Recovery before his Majesties Justices of his Highness Court of Common Pleas, of and in certain Houses and Tenements, with the Appurtenances which the said Draper lately had and purchased of the said C. R. the Defendant pleads that C. R. was living, and did not levy, &c. and a Demurrer, and the Question was, whether Draper or Ro. should levy the Fine, and held, that Draper should levy the Fine.

BAker versus Pain, Hill. 10. Jac. rotulo 3139. An Action of Debt * 1.285 brought upon a Bond to pay Rent, and perform all the Covenants, Grants, Payments, and Conditions contained in a pair of Indentures: and the Defendant pleads the Indenture and performance thereof. The Plaintiff assignes the Breach, that the Defendant had not paid the Money. The Defendant replies, that the Plaintiff had entred into part of the Premises the Day before the Day of Payment, and so at Issue upon that; and Exception was taken, because the Plaintiff had alledged no Demand to be made, and the Court held, that was im∣plied by the Issue, and that it was not necessary.

FRyer Administrator of Mary Costiden, of the Goods not admi∣nistred by Mary Fryer Executrix of the said M. C. versus Jaco∣bum * 1.286 Gildiich Executor of N. Pope, Hill. 11. Jac. rotulo 1990. The case was this, two were bound to one, and the Obligee makes the Wife of one of the Obligers his Executrix, and one of the Obligers makes the same Woman Executrix, and she dies, and the Plaintiff takes Administration of the Goods of the Woman not administred; and Judgement was given for the Defendant by the whole Court. If an Executor hath a Lease, and purchaseth the Fee-simple, the Lease is gone, but it shall be Assets in the Executors hands, if a pers∣nal thing be once gone, it is extinct for ever. If the Husband had sur∣vived the Wife, he should be charged.

HArcock Executor of Harcock, versus Wrenham Administrator of * 1.287 Wrenham, Hill. 11. Jac. rotulo 1963. A Scire facias brought to revive a Judgement had against the Intestate, and the Defendant pleads, Plene administravit, which was held a naughty Plea by the whole Court, for he cannot pay so much as Funerals, before he pay the Judgement, and therefore that general fully administred is naught. The Jury found that the Intestate in trust conveyed one Lease to Fisher, and that Fisher promised upon the Payment of 300. l.

to re-assure the Interest to Wrenham, and after his Death the Admi∣nistrator the Defendant preferred a Bill in the Chancery as Admi∣nistrator against Fisher, and that the Chancery ordered that Fisher should pay the Defendant for his Interest in the Lease more then the summ received, the summ of 1060. l. which was paid the Defendant accordingly; and whether that should be Assets was the Question, and it was held to be Assets. If an Executor make gain of the Testa∣tors Money, that gain shall be Assets: the Doubt in this case was, be∣cause this was but in Use; and now whether the Court shall take no∣tice of this Use, they shall being found by the Jury, Judgements shall be paid before Statutes or Recognances: and Judgement was given for the Plaintiff: and although in this case the Barr of generally ad∣ministred be naught, yet an Issue taken thereupon and tried, shall not arrest the Judgement for the Plaintiff.

PEase and Stilman Executors, Hanchet against E. Meade, Mich. * 1.288 11. Jac. rotulo 945. An Action of Debt brought upon an Obliga∣tion, with a Condition, if Meade his Executors, Administrators, or Assignes, or any of them shall pay 20. l. within the Porch of the Pa∣rish Church of R. unto such person or persons as the said Hanchet shall by her last Will and Testament in writing limit, nominate or ap∣point, the same to be made in manner, &c. The Defendant pleads that the said Hanchet by her last Will and Testament in writing hath not nominated, limited, or appointed, to what person or persons the said 20. l. should be paid. The Plaintiff replies, and sues, that the Testator made him Executor, and died, and that he took upon him the burden of the Will, and that the Defendant did not pay the Executor the Money: and a Demurrer thereupon. And if it had been to pay to her Assignee, that she should name the Executor should have it: such things as go by way of Executorship shall be to the Executor, without nomination or appointment.

STannard versus Baxster, Trin. 9. Jac. rotulo 1123. An Action of * 1.289 Debt brought for Damages, recovered in an Assise of Nuzans, for stopping the way, before special Commissioners. The Defendant pleads no such Record, and the Record was delivered into the Court by the special Commissioners.

TRin. 8. Jac. rotulo. An Action of Debt brought upon a Bond, * 1.290 with a Condition, for performance of Covenants of an Inden∣ture. The Defendant confesses the Bond, and that after the making the Bond, and before the purchasing the Plaintiffs Writ, the Inden∣ture by the consent and assent of Plaintiff and Defendant was can∣celled: and the said Plaintiff cancelled the said Indenture: and it

was held a naughty Plea by the said Court; for it did appear but that the Bond might be forfeited. For he ought to have pleaded perfor∣mance of Covenants untill such a Day, which Day the Indenture was cancelled.

BRook versus Smith, Hill. 9. Jacobi, rotulo 829. Two Tenements in Common make a Lease, and reserve a Rent and Covenant that nei∣ther * 1.291 should release, and one of them releaseth his part, this is a Breach, for that in Debt they both should joyn, and now by the Re∣lease the Action is gone.

LAny versus Aldred, and another Executor, Trin. 10. Jac. vel * 1.292 Pasch. 9. Jac. rotulo 504. An Action of Debt brought against them as Executors, one pleads that he was Administrator, and that the Administration was committed to him by the Bishop, and pleads a Recovery against him as Administrator, and that he had fully admi∣nistred, and had no Assets to satisfie the Judgement, and the other Executor acknowledged the Action; and the Plea was held a good Plea: but it was said, the Defendant might have defeated the Action which was brought against him as Executor, and therefore they would infer, that it was no good Plea, but it was a good Plea; and it was held by the chief Justice, that if an Executor of his own wrong be sued with a rightfull Executor in one Writ, the Executor of his own wrong shall not by his Plea prejudice the rightfull Executor.

MArsh versus Curtis, Hill. 38. Eliz. rotulo 132. An Action of Debt brought upon an Obligation for performance of Cove∣nants * 1.293 in a Lease, upon which Rent is reserved, and the Condition was that if the Rent should be behinde, then lawfull to re-enter, and the Rent was behinde and before re-entry the Rent was accepted. The Question was, whether he may enter for the Condition broken after the acceptance of the Rent. Sir Edward Cook was of opinion, that by the acceptance of the Rent he did confirm the Estate, but if a Bond be entred into to perform Covenants in a Lease, whereupon Rent is reserved, and a Fine to be paid, with a Condition of re-entry for not paying the Rent or Fine, and if the Rent be received, and the Fine not paid, the acceptance of the Rent doth not take away the Con∣dition for not paying the Fine.

R. Milton versus R. Pearsey, Trin. 10. Iacobi, rotulo 445. An * 1.294 Action of Debt brought, and in the Venire facias the Defen∣dants name was mistaken, for the Venire was to impannell a Jury be∣tween R. Milton Plaintiff, and I. Pearsey Defendant in a Plea of Debt, and the Court held the Venire as none, and a new Triall a∣warded,

and the like Judgement was given, Trin. 7. Iacobi, rotulo 787. in the upper Bench.

BRownsworth versus Trench, Trin. 10. Iacobi, rotulo 3628. An Action of Debt brought upon an Escape against a Bailiff of a Liberty, and after a Triall Exception was taken to the Declaration, because it was not alleadged therein, that the Sheriff made a War∣rant to the Bailiff upon the Execution, but it was onely alleadged that at A. aforesaid, by vertue of the Warrant aforesaid, he took the Prisoner, and saith not, within his Liberty aforesaid, and the Ex∣ception was held void.

Trin. 10. Iacobi. An Action of Debt brought by Executors, and * 1.295 the Defendant pleads that the Plaintiffs were not Executors, and tri∣ed, and found for the Defendant; and the Defendant upon the Statute for Costs desired Costs, because the Jury found against the Plaintiff that he was not Executor; and if a Verdict passe against one that is not an Executor, he shall pay Costs, but Costs were denied by the whole Court, for the Jury might finde an untruth.

BAlder versus Blackborn, Trin. 16. Iacobi, rotulo 465. An Action * 1.296 of Debt brought for Rent reserved upon a Lease for years, the Case: this Land was devised to a Woman in this manner, that she should have the profits of the Land untill the Daughter of the De∣visor should be eighteen years old; and the Woman made the Lease in question reserving Rent, and afterwards married, and then died; and if the Husband after her Death should have the Land untill the Daughter of the Devisor came to eighteen years old, was the que∣stion, and adjudged he should hold the Land for the Devise of the profits is the Devise of the Land, and is not like a Lease made by a Guardian in Socage, which ends by the De•…•… of the Guardian; the Declaration was for one Mesuage demised the fourth of May 15. Jac. for one year, and so from year to year, as long as both parties should agree, paying twenty four pounds by the year, and Nil debet per pa∣triam, was pleaded; and the Jury found it specially that one I. W. was seised of the Tenement, and held it in Socage, and made it his last Will in writing, and by that did devise to A. his Daughter the said Tenement, and her Heirs for ever, at the full Age of eighteen years; the words of the Will were: Item, I will that my Wife and Executrix shall have the Education of my Daughter, with the portion of Mo∣ney and profits of my Land to her own use without account, untill my Daughters Age aforesaid; provided she shall pay the out-rents, and keep her Daughter at School, and by that Will made his Wife Executrix, and the said W. died, and his Wife survived, and took up∣on

her the Executorship and married with one P. the Woman per∣formed the Condition, and afterwards died, and Judgement was gi∣ven for the Plaintiff, that it was a terme, and that the Husband should have it.

An Action of Debt was brought against an Executor, and the Case was thus, Administration was committed to one during the minority * 1.297 of the Executor who wasted the Goods of the Testator, and after the Executor attained the Age of seventeen years an Action of Debt was brought against the Executor, and the opinion of the Court was prayed whether he might plead generally ne unques Executor, or ex∣cuse himself by pleading the special matter, and the Court doubled, but most safe to plead the special matter.

An Action of Debt was brought for Rent reserved by Indenture payable at two Feasts, or within twenty daies then next following, and the Plaintiff declared upon a Lease for the Rent, and because ten pound at the Feast of the Anunciation, 10. Jacobi, was behind and un∣paid, the Action was brought, the Defendant pleads, Non demisit, and a Verdict for the Plaintiff, and after a Triall exception was taken to the Declaration because it was not alleadged that the Rent was arrere at that Feast and twenty daies after, but it was not allowed after a Ver∣dict, because he should have taken advantage thereof before.

RAtliff versus Executors, Pasch. 15. Jacobi. An Action of Debt brought upon an Obligation to perform Covenants in an Inden∣ture. The Defendant pleads performance of the Covenants, the Plain∣tiff alleadges a breach upon this Covenant that the Lessee should in∣joy the Land without any lawfull interruption or disturbance of the Lessor or his Executors, and shewes that the Executors entred upon him in the Land, and outed him, and shews not any interruption for a∣ny just cause, and adjudged good in the upper Bench.

WHitton versus Bye, Trin. 16. Jacobi, It was adjudged in the up∣per * 1.298 Bench in an Action of Debt brought by a Lessor against a Lessee for years for Rent reserved during the Tearme being behind and unpaid, that a Release pleaded to be made by the Lessor to the Lessee six years before the Rent was arrere, of all Demands, was a good Barr: One cannot reserve a Rent to a stranger it must be reser∣ved according to the privity.

WAinford Administrator Kirby versus Warner Trin. 13. Jacobi rotulo 1906. An Action of Debt brought upon a Bond, to which the Defendant pleads that the intestate was indebted to him in such a sum, and that he retained, &c. in his hands to satisfie himself of the Debt due to him. And that he had not assets over to satisfie the

Plaintiff, to which Plea the Plaintiff demurrs, because he did not plead generally fully administred, but an Exception was taken, be∣cause he shewed not that the Condition of the Bond was for pay∣ment of Money.

STone versus Goddard, Trin. 14. Jacobi, rotulo 2258. An Action of * 1.299 Debt brought upon divers Emissets of divers Wares, Videlicet, unum ahenum for five shillings, unum scabum for six shillings, and so divers other words which the Court could not understand what they signified, in regard no Anglice was put to them: and the Defendant pleaded Nil debet per patriam, and the Jury gave a Verdict for the Plaintiff, and Damages given for the whole Debt, and moved in Ar∣rest of Judgement, and Judgement that the Plaintiff should have no Judgement for the insufficiency of his Declaration.

WEeks versus Wright, unum Clericorum R. B. The Plaintiff ex∣hibited * 1.300 a Bill against the Defendant for Money due upon an Obligation, and Issue was joyned, and the Cause tried, and a Verdict for the Plaintiff; and after Triall the Defendant moved in Arrest of Judgement, that the Bill was not filed, & that it was not helped by the Statute of Jeofayles, nor within that Statute, for it is an Original, but afterwards the Court granted that a new Bill should be filed, so that the matter might be put to arbitrement, and if the Arbitrators could not determine the matter the Court would. And note, the Court seemed to be of an opinion that the want of a Bill is not helped by the Statute.

WItchoct & Linesey versus Nine, Trin. 9. Jacobi, rotulo 726. * 1.301 An Action of Debt brought upon an Obligation, to perform the Covenants contained in an Indenture, the Covenant was for quiet injoying without let, trouble, interruption, &c. The Plaintiff as∣signed his Breach that he forbad his Tenant to pay his Rent; this was held by the Court to be no Breach, unlesse there were some other Act; and the Defendant pleaded, that after the time the Plaintiff said, that he forbad the Tenant to pay the Rent, the Tenant did pay the Rent to the Plaintiff.

LEvel versus Hall, Pasch. 9. Jac. rotulo 805. An Action of Debt * 1.302 brought upon an Obligation, to which the Defendant pleads, that the Plaintiff brought another Action upon the same Bond in London, to which the Defendant there had pleaded Non est factum, and it was there found that it was not the Defendants Deed, and in London the Entry is upon such a Verdict, that the Defendant shall re∣cover Damages against the Plaintiff, and that the Defendant should

be without day, &c. but no Judgement, that the Plaintiffe should take nothing by his Writ, and therefore no Judgement to be barred in another Suit, but barr the Plaintiffe, for it is onely a triall, and no Judgement, and the Plea was adjudged naught by the whole Court.

MIch. 15. Jac. Rotulo 2215. One made another his Executor, and * 1.303 that Executor died, and made another his Executor, and the last Executor refused to own his first Will, as to his goods, and this matter was pleaded in his Action of Debt, brought by an Admi∣nistrator of the Goods of the first Executor, pretending the Admi∣nistration was void, although the Executor refused to be Executor, as to the Goods, and the Court held the Administration void, for the Executor cannot be Executor, for part at his own Election, and not for part, and the Defendant pleaded that the Executor should not bring his Action as Administrator, but as Executor.

WHerwood versus Shaw, Mich. 44. and 45 Eliz. Shaw Exe∣cutor * 1.304 of A. brought an Action of Debt against Wherwood Administrator of Feild, upon a Bill made by Field to A. by which Feild doth acknowledge himself to have received of one P. forty l. to be equally divided between the said A. and B. to their use, and upon a Judgement given in the Common Pleas, Wherwood brings a Writ of Error and the Judgement was affirmed, the matters moved were, i. because the forty pounds was given to be equally divided between A, and B. therefore they were Tenants in common of it, and Shaw should have joyned B. in the Action with himself, as Tenants in com∣mon are to joyn in personall action, but over-ruled, that in this case there were severall Debts, to wit twenty pound to one, and twenty * 1.305 pounds to the other, as in case of ten pounds rent reserved upon a Lease, to wit five pounds at the Feast of Michaelmas, and five pounds at the Feast of the Annunciation, yet it is but one Rent, and this case is not to be resembled to the Cases of Interest, as in the 20 Eliz. where Land or Lease be giuen to two equally to be divided, for there they are Tenants in common. The second thing moved was, whether Debt or account did ly, and adjudged that although no contract was between the parties, yet when either money or goods are delivered * 1.306 upon consideration to the use of A. A. may have an Action of Debt, and of that opinion was Mountain, 28 H. 8. in Core and Woods Case, and also there is a President of such Actions of Debt in the Book of Entries. * 1.307

BRoad versus Owen, Mich. 44 and 45 Eliz. The Plaintiffe brought an Action of Debt upon the Statute of 5 Eliz, for Perjury against the Defendant; the case was thus, one Low was Plaintiffe against

Brode in the high Court of Chancery, and upon Bill and Answer such matter appeared to the Lord Keeper, that he ordered that one La∣bourer should become party to the Bill against Brode, and afterwards one Commission issued out of Chancery between Labourer and Brode, to examine Witnesses, by which Commission Owen the now Defendant was examined on the behalf of Labourer, and did depose directly for Labourer against Brode, by reason whereof one Order and Decree was made in the Chancery against Brode, and for that cause Brode brought his Action of Debt against Owen, upon the Statute of Per∣jury, 5 Eliz. for one party grieved by the Oath and Deposition of an∣other, and Owen demurrs in Law; and by the opinion of Gaudy and Yelverton Justices, the Action would not lie, for the words of the Statute are where a man is grieved: and damnified by a Deposition in one Suit between party and party, and in this Case it appeared that Labourer was no party to the Suit, but came in by an Order, and no Bill depending either against him, or brought by him, and so out of the Statute, for it is penall and to be taken strictly: and quaere if he in the Reversion joyn in aid, and is grieved and prejudiced by an Oath and Deposition may maintain an Action of Debt upon this Sta∣tute, for he may undoubtedly by the Common Law have an At∣taint.

GReen versus Gascoin, Pasch. 1. Jacobi. An Action of Debt brought * 1.308 upon an Obligation for an hundred pounds, to which the Defen∣dant pleads in Barr to the Action an Outlary against the Plaintiff, and shews it incertain, the Plaintiff replies Nul. tiel, record; and the De∣fendant had Day till the next Term to bring in the Record, and in the mean time the Plaintiff reverses the Outlary, by which it is become in Law no Record, according to the 4 H. 7. 12. And Yelverton moved the Court for the Defendant, that although in Law there was a Failer of the Record, yet the Defendant ought not to be condemned, but shall answer over according to the 6. of Eliz. Dier fol. 228. where it is adjudged that Failer of the Record is not peremptory, and so ad∣judged, for it was no Default in the▪ Defendant, his Plea being true at such time as it was pleaded with mark.

WEaver versus Clifford. Action of Debt brought for an Escape, * 1.309 the Case was thus upon the Nichils returned against a Conu∣sor in Chancery a Capias was awarded out of the Chancery against him, by vertue of which he was taken by the Sheriff, and suffered to escape, and adjudged that no Action would lie against the Sheriff in this Case, for a Capias lies not upon a Recognisance, but onely a Scire facias, and therefore when a man is taken upon the Capias he is not a Prisoner by the course of Law, for the Law hath not ordained any

means to arrest him, and is therefore in Custody without Warrant, and no Escape, and it is an illegal Commitment, and so is the ••ratu••e of Westminster, the 2. to b•• const••ued which g•…•… Action against the the Gaolor, to wit, where the party is in Execution by course of Law, and although the Chancery doth award a Capias upon a Re∣cognisance, and that there are divers Pre••••lents of it; et it is b••t the use of that Court onely, which may not step the ••udges mouthes, but that they ought to judge according to Law, and this was the opi∣nion of Popham, Yelverton. Gaudy, but Fennor doubted, for he thought the awarding of the Capias one••y erroneous, and not void; and Serjeant Tanfield and the Attorney General shewed a precise Judgement in the Case, 21 Eliz. in the Exchequer Cl••ment Pastons Case, against whom an Action of Debt was brought for suffering one to escape who was taken by vertue of a Capias upon a Recognisance, and the three Judges held strongly their opinion.

PƲdsey versus Newsam, Mich. 1. Jacobi. An Action of Debt brought upon an Obligation for five hundred pounds, with a Condition, that if the Defendant before Mich. do make knowledge, and suf∣fer, &c. all and every such reasonable Act and things whatsoever they be for the good and lawfull assuring and sure making of the Mannour * 1.310 of D. to J. S. and his Heirs, that then, &c. The Defendant pleads that before Mich. the Plaintiff had not reasonably required the Defendant to make any reasonable Act or Acts which should be for the good and lawfull assuring of the Mannor of D. The Plaintiff replies, that such a Day before Mich. he requested the Defendant that he would convey and assure the Mannour of D. to J. S. according to the tenour of the Condition, and upon this they were at Issue, and found for the Plaintiff, and it was moved in Arrest of Judgement, that no sufficient Breach was assigned, for the Plaintiff ought to have required one Assurance in certain which he would have had made, but the Exception was over-ruled, and adjudged that the Issue was well joyned, and the Condition broken; for by the Condition the Defen∣dant is to make all and every Act whatsoever for the Assurance of the Mannour of D. in so much that if the Plaintiff should request one Fine, Feoffment, or Recovery, or Bargain and Sale, the Defen∣dant ought to make all, but they held he was not bound to make an Obligation or Recognisance for the injoying the Mannour, for that is but collateral Security, & is no Assurance. And when the Plaintiff re∣quires the Defendant to convey the Mannour generally, the Defend. at his peril ought to do it by any kinde of Assurance; and if upon such Request the Defendant should make a Feoffment of the Mannour, yet if the Plaintiff afterwards request one Fine, the Defendant ought to acknowledge one Fine also, and so upon severall Requests he ought

to make severall Assurances, and so in making the Request general, he had well pursued the Condition, and the Defendant ought at his pe∣ril•…•…ake every Assurance by the opinion of the whole Court.

ELlis versus Warnes, Trin. 2. Jacobi. An Action of Debt brought upon a Bond for a hundred and twenty pounds, and the Case up∣on the pleading was, that Warnes was indebted to one Ader a hundred pounds upon an usurious Contract, and that Ader was indebted to Ellis in a hundred pounds, for which Warnes and Ader were obliged to the Plaintiff, and Debt being brought upon that Obligation, Warnes pleads the Usury between him and Ader to avoid the Bond; Ellis the Plaintiff replies, that Ader before the making the Bond was indebted to him in a hundred pounds, a just and true Debt, for Pay∣ment whereof VVarnes and Ader were bound to him in the Bond in Suit, and that he was not in any wise knowing of the Usury between Warner and Ader, and Warnes demurrs to this Plea; and adjudged by Gaudy, Yelverton, and W. for the Plaintiff, for it is not Usury in the Plaintiff, but onely between Warnes and Ader, to which the Plaintiff being not privy shall not be prejudiced, for although the Statute of Usury is to be taken most strongly for the suppressing of Usury, yet it must be between such parties as use Corruption, and not to punish the innocent, as the Plaintiff, but if no Debt had been due to the Plaintiff before, then it had been clearly Usury, for there had been no lawfull Cause to make the Bond to him, but onely to countenance the Corruption between VVarnes and Ader; and Yelverton said, that if the Defendants Plea be good, then every man may be defrauded of his just Debt; for if the Barr shall be good by Corruption between the Debtor and Surety, to which the Creditor is a meer stranger, a man may loose his Debt, which is mischievous: but Popham and Fen∣nor doubted of the Plaintiffs Replication, that he ought to have took a Traverse upon the Defendants Barr, which ought not to be; for how should he traverse a thing which could be within his knowledge, and to which he was no party.

HArgrave versus Rogers, Mich. 2. Jacobi. Action of Debt brought, and Bail given, that A. upon eight Dayes warning shall appear to an Action to be brought by B. for the same Debt; and if A. shall be condemned in the Suit, and not pay it, then the Bail would answer B. the Condemnation; and B. brought his Action against A. in which A. was condemned, and did not pay, by reason whereof B. brought an Action of Debt against the Bail upon the Recognisance, and set forth the Suit against A. and the Condemnation, and that he had not satisfied it, but shewed not that it had eight Dayes warning to appear to the Action; and Fennor and Yelverton held, that he need

not shew it, for the Condition of the Recognisance depends upon two Clauses, one the Appearance at 8. Dayes warning, the other is the satis∣faction by the Bail, if P. should not pay the Condemnation compre∣hended in these words (And) and in this Case the Action was brought upon the second Clause, to wit, the Default of P. because he had not answered the Condemnation, and therefore needlesse to meddle with that part of the Condition. But if the Action had been brought, if the first Clause then B. ought to have shewed in certain the Warning to have been given by 8. Dayes; but Popham, Gandy, and W. were of a con∣trary opinion, and that the Plaintiff of necessity ought to shew the Warning to have been given 8. Dayes, because that part of the condi∣tion is not to be performed between parties, but an Estranger, for A. is an Estranger, and the Bail is bound as well to answer such Condem∣nation in such Action as shall be brought upon the eight Dayes War∣ning given, for that is the ground of all; and it is no reason that A. by his voluntary Appearance without eight Dayes Warning should * 1.311 prejudice his Bail; but otherwise it had been if the Condition had been between A. and B. for then if A. would appear without such Warning, it is his folly, and no injury is done to one that is willing: and according to this opinion the Plaintiff discontinued his Suit, and the Defendants were ordered to put in new Bail with mark.

SIr Rich. Campion vers-Hill, Pasch. 3. Jac. An Action of Debt brought * 1.312 upon the Stat. of E. 6. for not setting forth of Tithes, & the Plaintiff shews that the Rector of M. had 2. parts of the Tithes in 3. parts to be divided, & that the Vicar of the same place had the third part of the Tithes, and layeth this by Prescription, as to the manner of the taking the Tithes, & shews further, how the Parson & Vicar by several Leases had demised the Tithes to him, & so he being Proprietor of the Tithes, the Defend. sowed 10. Acres within the Parish, to wit, Wheat, Rie, &c. & carried it away without setting forth the Tithe to his Damage, &c. And upon a Nil debet per patriam, pleaded, it was found for the Plain∣tiff, and moved in Arrest of Judgement, that the Plaintiff had in that Action comprised severall Actions upon the Statute, and that it ap∣peared by his own shewing, for the Plaintiff claimed not the Tithes under one Title, but under the severall Tithes of Parson and Vicar; and Fennor Justice held they could not joyn, and no more could the Plaintiff who claimed severally under them, and it seemed to him that the Parson could not have this Action against severall Tenants, for not setting forth their severall Tithes, because he could not com∣prehend two Actions in one; but the whole Court besides held the contrary; for although the Parson and Vicar could not joyn in this Case, because they claim their Tithes severally by divided Rights, yet when both their Tithes are conjoyned in one person; as it is in the

Plaintiffe, then the the Interest of their Title is conjoyned also in one, * 1.313 and it suffices generally to shew the Plaintiffe is a Farmer or proprie∣tor of the Tithes, without saying of what Title, for it is but a personall action, grounded meerly upon a contempt against the Sta∣tute for not setting forth Tithes, and also Tithes are not demanded by this Action, although the Title may come in debate, yet it was agreed by all the Judges, that the Plaintiffe should recover his Tithes in dammages, and shall not demand them again by any suit, after a reco∣very in this Action, which Mark.

BErket versus Manning, Pasch. 3 Jacobi. Action of Debt brought * 1.314 against the Defendant, as Administrator of J. S. The Defendant pleads fully administred, the Plaintiffe replies that himself had assets and it should have been that the Defendant had assets, and this was moved in arrest of Judgement, but amended by the Court, being the Clerks misprision, onely as where it is entred, & predict. Defend. si∣militer, and it should have been, & predict. quer. similiter, and this hath been often amended by the Court.

PAler versus Hardman Pasch. Jacobi, Hardman and his wife Execu∣trix, * 1.315 J. H. brought an Action of Debt in the common Pleas against Paler, and as that they should restore a tun of Iron, to the value of twelve l. and declare upon a Bill for the delivery of the said tun of I∣ron within such a time, and that the Defendant had not delivered it to the Plaintiffes dammage, of, &c. and upon non est fact. pleaded it was found for the Plaintiffe, and Judgement was given that the Plaintiffe should recover the Tun of Iron, or the value of the same, and if he should render the tun then by the oath, &c. should inquire what the tun of Iron was worth, and before any return of the writ to inquire of the dammages, the Plaintiffe in the common Pleas takes out a Capias upon the Judgement, and on Exigent upon that, and the Defendant brings a writ of Error, and it was adjudged erroneous, for two causes, first because the Judgement was in the disjunctive, that the Plaintiffe should recover the tun of Iron, and if not the value thereof, so in detinue, as it appears by the Judgement in this Case, that the Plaintiffe may choose whether he will have the Iron or the value thereof, which he cannot do, for if the iron be to be delivered he shall recover that onely, but if it be not to be delivered, then the value, and not as before. Secondly, for that the Judgement is not perfect untill the writ to inquire be returned, with issues to the She∣riffe to distrain the Defendant to render the Iron, and also to inquire of the value, and before the return thereof, nothing in certain ap∣pears. One which to ground any writ of Execution for the Judge∣ment comprehends no certainty, but is to be made certain by the

return of the writ, to inquire with the whole Court granted.

CArpenter versus Collins, Mich. 3 Jacobi, An Action of Debt brought by the Plaintiffe for rent arere, and declares upon a Lease * 1.316 made to the Defendant at Will to be held from Mich. as long as both parties should agree, yeelding and paying three pounds yearly, and shews that Collins entred and occupied from the Feast, &c. unto the Feast of Mich. and upon nil debet plenius, the Jury foundthat J. Nor∣rington had issue a Son and a daughter, and Devises, that his Son shall have his Land, at the age of twenty four years, and gives forty pounds to his Daughter, to be paid her at the age of two and twenty years, an further wills that the Plaintiffe should be his Executor, and should repair to his houses, and have the oversight and doing of all his Lands and moveable Goods, untill the severall ages aforesaid, and after dies and Carpenter the Executor makes the Lease before mentioned, and the Jury further find that the Son died, but find not at what age he was at his death, but that the Daughter at the Sons death was nineteen and no more, and find the Lease made by the Plaintiffe, and that the Lessee by force thereof entred and continued possession from Micha∣elmas for one year and more, and find that within that year, the Daughter entred, and that the Defendant atturned to the Daughter, and refused to continue Tenant to the Plaintiffe, and by Fennor, Yel∣verton and W. Judgement was given against the Plaintiffe, for the Plaintif took no interest in the Land by the Will, for the oversight and doing of his Lands shall be intended but in Right of the Heire, and to his use, because the Testator though not his Son of discretion and government, untill the age of twenty four years, and in the mean time appointed his Executor to oversee and order the Land to the profits of the He••••e that wanted discretion, 28 H. 8. D. 26. where it is declared that J. S. shall have as well the governing of, &c. as the disposing, setting, letting, and ordering of his Lands, and by the Court held that J. S. had them onely to husband, for the profit of his chil∣dren and no otherwise, but he was of opinion that the Plaintif had an estate in the Land upon a limitation determinable at the Sons age of four and twenty years, and it appears not at what age he died, being not found by the verdict, therefore it is incertain, and the Entry of the Daughter lawfull, for the limitation looks but to the age of the Sonne, and not to the age of the Daughter, for the age of the Daughter shall be intended to be set down for the receit of her legacy of forty pounds, and for no other purpose, and the Defendant within the time in which the Rent demanded, is supposed to be due, had not determined his Will, as appears by the Verdict: but Fennor and W. said that by the Verdict that the Defendant en∣tred by force of the lease, and occupied the land at the time compri∣sed

in the Declaration and more, and that the Tenant at will can∣not determine his will, within a little time before the year end, for that would prove very mischeivous to the lessor, that his Tenant at will should determine his will within the year, and refuse to occupy the land, twenty dayes before the year end, and in 21 H. 7. Crooks Re∣ports, it appears that a Lessee at will cannot determine his will with∣in the year to the prejudice of the Lessor, but that he shall answer the whole Rent to the Lessor, but note it appeared, that the Lessee at will was expulsed by the Plaintif that was Lessor, and no other * 1.317 thing, although done by his agreement can determine the Lease against the Lessor, for it is Covin if the Lessee be not privy, and acquainted with it, which was granted by the whole Court, and all of them a∣greed in the Title against the Plaintif, but as the Reporter affirmed, Popham was absent, and hearing the Case, was of opinion that the Plaintif had an interest by the words of the will.

JEffry versus Guy Mich. 3. Jacobi, An Action of Debt brought up∣on * 1.318 an Obligation, with Condition, that if Jeffry the Defendant perform all Covenants in such an Indenture, that then, &c. and one Covenant was, that he should permit Guy the Plaintiffe from time to time to come and see if the House Leased by Guy. and K. his Wife were in repair, the Case was thus, J. Bill. and K. his Wife were Tenants in Tail of a house, and had Issue, J. B. dies, K. mar∣ries Guy the Plaintiffe, and they two make a Lease by Indenture to Jeffry, for twenty years, yeelding and paying to them and their Heirs three pounds Rent by the year, with the Covenant as aforesaid. Jeffry pleads in Barr the former intail, and the death of R. and that VV. the Issue in Tail such a day entred, before which Entry the Condition was not broken, Guy replies that William came with him upon the Land, to see if reparations, &c. and traverses the Entry of William in manner and form, prout, &c. and Issue joyned upon the traverse, and found for the Plaintiffe, and Judgement given in the common Pleas, upon which Judgement Jeffry brought Writ of Error in the Kings Bench, and Judgement affirmed there, but it was assigned for Error, the Jury had not assigned any breach of Covenant in Jeffry, and so had showed no cause of action, but the Court held he need not in this Case, for by the speciall Issue tendred by Jeffry, the Plaintiffe was inforced, one speciall replication to that point tendred, and the Plaintiffe could not proceed error, and it is not like the Case of an arbitrement, wherein Debt upon an Obligation to perform the a∣ward, the Defendant pleads nullum fecer arbitrium, then the Defen∣•…•… in his replication ought to set forth the award, and assign his breach, because the Defendants Plea is generall, but if in such Case the Defendant should plead a release of all demands: after the Arbi-Arbitrement,

by which he offers a special point in Issue, there it suf∣fices, if the Plaintiff answers to the Release, or other special matter alleadged by the Defendant, without assigning any Breach; so in this Case the special Plea of the Defendant had disabled the Plaintiff, that he could not assign any Breach of Covenants, but of necessity ought to answer to the special matter alleadged.

RAstell versus Draper, Mich. 3. Jacobi. An Action of Debt brought for nine and thirty pounds, the Plaintiff declares that the first of * 1.319 May, primo Iacobi, sold to the Defendant twenty Northern Clothes for sixty pounds Flemish Money, to be paid upon Request, which sixty pounds Flemish Money amount to nine and thirty pounds English Money; and that the Defendant, though often requested, had not paid the nine and thirty pounds, to his Damages of, &c. The Defendant pleads Nil debet per patriam, and found for the Plaintiff, and moved in Arrest of Judgement, that the Plaintiff should have demanded the summ according to the Contract, which was for sixty pounds Flemish, and to have shewed, that it amounts to nine and thirty pounds Eng∣lish, but the whole Court against it; for the Debt ought to be de∣manded by a name known, and the Judges are not skilled in Flemish Money: and also when the Plaintiff hath his Judgement, he could not have his Execution by that name; for the Sheriff cannot tell how to levy the Money in Flemish; and also it is made good by the Ver∣dict, for the Jury have found the Debt demanded, to wit, nine and thirty pounds. But if the Contract had been for so many Ounces of Flemish Money, or a Barr of Silver and Gold, now it cannot be de∣manded by the name of twenty pounds, or such a summ, which is not Coin, nor used in Trade or Merchandise, but in such Case must have a Writ of Detinue, and in that recover the thing, or the value; and so in the Book of Entries, fol. 157. is the President, where Debt was brought upon two severall Obligations, and demands eight and twen∣ty pounds, and declares severally, that by one Obligation he owed eight and twenty pounds of Flemish Money, and 34 H. 6. 12. & 9 E. 4. 46. But note in that Case, the Plaintiff if he would might have declared in the Detinet, and it had been good.

ROlles versus Osborn, Mich. 3. Jac. The Plaintiff brought an Acti∣on of Debt against the Defendant upon a Bond of a thousand * 1.320 pounds, and Serjeant Nichols moved the Court for the Defendant, and shewed that the Plaintiff and Defendant were obliged each to other in a thousand pounds a peice, that they should intermarry be∣fore such a Day, and both their Obligations were forfeited, and each of them sued the other; and the Defendant prayed that common Bail might be accepted of her, and she would accept of common

Bail of the Plaintiff; and the Court held it reasonable, but said, if they would marry, both their Bonds might be saved.

BArneshurst versus Yelverton, Hill. 3. Jacobi. The Plaintiff as Ad∣ministrator * 1.321 of I. S. brought an Action of Debt against the De∣fendant, upon a Bond, and obtained a Judgement, and afterwards the Administration is revoked, yet notwithstanding the Plaintiff pro∣ceeded, and took the Defendant in Execution; and upon a Motion in the Court, the Court held the Execution void, and that the Defen∣dant ought to be discharged, because it issued out erroneously; for the Letters of Administration being revoked, the power of the Plain∣tiff is gone, and determined, for he prosecuted the Suit in anothers Right, and is but a Minister of the Ordinary; and then when the Ground of the Suit is over-thrown, to wit, his Commission, he hath no Authority to proceed further, and the Execution issued without Warrant. And the like Law upon a Judgement had upon an Admi∣nistrator, the second Administrator shall not have Execution by it, for he hath no privity to the Record; which mark.

ANdrews versus Robbins, Trin. 4. Jacobi. The Plaintiff brought * 1.322 Debt upon an Obligation made to him as Sheriff, with a Condi∣tion, that the Defendant should appear; and Crook said that the De∣fendant had pleaded his Appearance, and had omitted to say, as it ap∣pears by the Court, and it was held a grosse Fault, but the Record being perused, it appeared to be otherwise; for the Case was, that the Defendant was obliged to make an Obligation to appear in the Kings Bench at a day prefixed in the Writ and that the Defendant pleaded there was no day prefixed in the writ for his Appearance; and Crook moved that it was no Plea, for the Defendant was estopped, to which the Court agreed, that he was estopped, and Williams said, that if a man be bound to pay a hundred pounds, that I. S. owes to him, he cannot plead that I. S. doth not owe him a hundred pounds; and Tan∣field said, if it were to pay all sums that I. S. owed him, he isconcluded: & so it is held, 3 Eliz. Dyer. And the Court commanded Judgement to be entred for the Plaintif, if no cause shewed tothe contrary such a day.

JAckson versus Kirton, Trin. 4. Jacobi. In Common Pleas an Action of Debt brought upon an Obligation, the Condition was, that if * 1.323 A. would render himself to an Arrest in such a place, &c. The De∣fendant pleads, that by Priviledge of Parliament, those of the Parlia∣ment, and their necessary Servants ought not to be arrested by the space of forty Dayes before the Parliament, nor sitting the Parlia∣ment, nor forty Dayes after; and sets forth that A. was a Servant to such a man of the Parliament at such a time, so that he could not ren∣der

himself to be arrested; to which the Plaintiff demurrs; and the opinion of the Court was for the Plaintiff; for A. might render him∣self, and let it be at their perill, if they will arrest him.

MArkham versus Jerux, Hill. 4. Jac. Action of Debt brought up∣on a Bond, with a Condition to stand to the Award, Arbitre∣ment, * 1.324 &c. of Master Porley of Grays Inn, about the Title of one Co∣py-hold Tenement, M. P. awarded, &c. that the Defendant should pay to the Plaintiff six pounds upon the 21 May, 3 Jac. at such a place, to wit, in the Church Porch of C. and further awards that the Plain∣tiff by his Deed should release to the Defendant his whole Right, &c. upon the said 〈◊〉〈◊〉 Day of May at the same place upon the payment of the Money: and in another Clause of the Award he awarded that the Plaintiff should make further Assurance to the Defendant for the extinguishing of his Title, as should be advised, &c. And Yelverton moved that this Arbitrement was void, and is in a manner no Award, for it is repugnant and insensible; for although it be certain at what Day the Defendant should pay the six pounds, yet it doth not appear when, nor upon what Day the Plaintiff should release to the Defen∣dant, for there is no such first Day of May in the whole Award, and it is not bound or tied to any year of the King, so that it is altogether incertain; and although it may be collected that the Arbitrator did intend the 21. Day of May, because it is appointed to be made up∣on the payment of the six pounds, which was the 21. May, yet it is not expressed but onely by way of inference and implication: and it was objected, that admit the Award to be void in that part, yet it is good in the residue, which is to be performed by the Plaintiff, to wit, the making of better assurance; to which Yelverton answered, that all the Clauses in one Award are material, and the Clause of further assurance depends upon the repugnant Clause of the Release to be made; for the Award appoints that the Release is to be made upon the said first Day of May, whereas no such Day in the whole Award, shall be the first assurance; and the assurances which were to be made by the following Clause were in the intention of the Arbitrator, to be for the strengthning of the first Release, which was granted; and the Court said, there was much difference between Wills and Deeds, and between Arbitrements; for Deeds, &c. shall be construed according to the intent of the parties, and upon the words to be col∣lected out of the Deeds; but an Award, is of the nature of a Judge∣ment, and Sentence in which ought to be plainnesse, and no collection of the intent and meaning of the Arbitrators; for how it ought to be his Judgement, and not the Judgement of another upon the words of the Arbitrator; and Tanfeild said, it had been adjudged, that where the Arbitrator did award, that one of the parties should be∣come

bound to the other in the summ of, and no summ in certain, but a space left for the summ, that it was void: and if an Arbitrement be void in one Clause, although it be good in all Clauses, yet it is in Law no Award; for a Judgement ought to be plain, certain, and perfect in all things: but if the Arbitrators award, that one of the parties, and J. S. an Estranger shall do such a thing, that is good; as to the party who is within the Submission, and void onely to I. S. the Estranger, 19 E. 4.

ATkins versus Gardiner, Pasch. 5. Jac. The Plaintiff being Presi∣dent * 1.325 of the Colledge of Phisicians in London, brought an Action of Debt against the Defendant, for practising Phisick upon the Char∣ter made to them by H. 8. that none should practise Phisick in London, nor within seven Miles thereof, except such as were authorised by them, and gives them Authority to impose Fines upon such as shall practise Phisick, which Charter was confirmed by Act of Parliament in 14 H. 8. and he obtained Judgement upon the Statute, to recover a summ for himself, and the Colledge, and before Execution the Presi∣dent died, and whether the Successor should have Execution, and 8 E. 1. was cited, and divers other Books to that purpose.

STamford versus Cooks, Pasch. 5. Jacobi. An Action of Debt brought * 1.326 upon an Obligation, with a Condition, that the Defendant should seal such Assurances as should be devised by the Plaintiff, and that the Assurance should be of Copy-hold Land; and the Plaintiff devised that the Defendant should seal a Letter of Attorney made to one to surrender the Copy-hold for him, and also seal one Bond for the in∣joying thereof; and the Plaintiff offered these Writings to the De∣fendant to seal, and he refused, and upon such Refusall the Plaintiff brought his Action, and a Verdict was given for the Plaintiff; and Serjeant Yelverton moved in Arrest of Judgement, that the Plaintiff ought not to have Judgement; for he said, that the Defendant was not bound and compellable to seal that Obligation, because it was not in Law any Assurance, but a collateral thing; and the whole Court agreed that; and therefore being the Action was brought for refusing to seal the Obligation and Letter of Attorney, and the Judgement according it ought to be arrested: but Cock said, that Judgement ought not to be arrested, for the Premises of the Delaration, it ap∣peared that he refused to seal the Letter of Attorney, and thereupon concluded, that it should not be arrested: and Fennor said, that the Letter of Attorney was not any such Assurance, as the Law required in such Case; for when he had made the Surrender, it should be ac∣counted the Surrender of him that made the Assurance, and he said, he should make a present Assurance of it: but Tanfeild was of ano∣ther

opinion, and said, that when the Surrender was made, it shall be said to be the immediate Surrender of him that made the Letter of Atturney, and such an assurance as the Law required, and Yelverton, Justice, said, the Letter of Atturney was lame for this cause, the Letter of Atturney was made to one, for the surrendring of such a Copy-hold, and did not say in the Letter of Atturney for him, and in his name, for otherwise, the Copy-hold might be the Copy-hold of him that surrendred by vertue of the Letter of Atturney, and then he should surrender his own Copy-hold; but Tanfeild was of another opinion, because he said in the Letter of Atturney, that he did constitute and appoint, and in his stead and place put such a one, which words in his stead and place, are as full, as if he should have said, in his name.

HOllingworth versus Huntley, Pasch. 5 Jacobi, An Action of Debt brought upon an Obligation, the Condition, amongst many other things, contained that the Husband and Wife being Lessees for life of certain Lands, that if the said Husband and Wife should levy a Fine to an estranger, at the Costs and Charges of an estranger, and also that they should levy a Fine of other Lands, that they also held for their lives to an estranger, and at their Charge, then, &c. the Obliger sayes that the Husband and Wife did offer to levy the Fine, if the estran∣ger, to whom the Fine was to be delivered would bear their Charges, the Obligee demurres, and it was adjudged for the Plaintiffe, because the levying the second Fine had not any reference to the other, be∣cause they are two distinct sentences, and these words, and also make them so.

Man versus Somerton, Pasch. 5. Jacobi, The Plaintiffe being Par∣son * 1.327 of Henley, brought an action of Debt for six hundred pounds upon the Statute of 〈◊〉〈◊〉. 6. for not setting forth Tithe of Wood, and the Plaintiffe shews that the Defendant had cut down two hundred loads of Wood, to the value of two hundred pounds, and saith, the tenth part of that did amount to two hundred pounds, and so he brought his action for six hundred pounds upon the Statute, and the Plaintiffe was nonsuit, for one fault in his Declaration, for whereas he names the price of the Wood to be two hundred pounds, it was mistaken, for it should have been two thousand pounds, for he deman∣ded more for the tenth part, then the principall is, by his own shew∣ing, and Tanfeild Justice held that Beech by the common Law is not Timber, and so it was adjudged in Cary and Pagets Case, and it was held, that Tithes shall not be paid for Beech above the growth of twenty years in a common Countrey for Wood, as in Buckingham-shire, for there it is reputed Timber, but in a plentifull Countrey,

of Wood, it is otherwise, for there it is not Timber and Tithes shall be paid for such wood, Silva cedua, for which Tithes shall be paid, is under the growth of twenty years, but Tithes shall be paid for such wood which is not Timber, which is above the growth of twenty years.

PErcher versus Vaughan Trin. 5. Jac. An action of Debt brought * 1.328 upon an Obligation for six pounds thirteen shillings eight pence. The Defendant demands Oyer of the Obligation, and imparles, and after an imparlance the Defendant comes and sayes there was vari∣ance between the Plaintiffes writ, and the Obligation, for it appear∣ed by the Obligation that the Defendant was obliged in viginti nobi∣lis, and so his action ought to be brought according to the Obli∣gation, and demands Judgement, if the Plaintiffe ought to have his action, the Plaintiffe demurres, and it was argued by the Plaintiffes counsell, first, that it was no variance, for it was said that twenty no∣bles, and six pounds thirteen shillings eight pence, were all one in substance, if a man be bound to pay a hundred nobles, and brings his action for fifty marks, it is not variance, 34 H. 8. 12. and 4 E. 3. Fitz∣herbert, Title varians, 102. agrees to that, but if a man be obliged to pay certain money in Flemish money, he ought to shew the per∣formance of that strictly, 9 Ed. 4. 49. and the Plaintiffes counsell said that it was variance, it could not be shewed after an Imparlance in Marks Case, Co. 5. 74. and said the conclusion of the Defendants Plea to demand Judgement of the Plaintiffe, ought to have his acti∣on, was not good, for this Plea was not in barr of the action, but in abatement of the Writ, and Yelverton, Justice, agreed to that, and he said when the Obligation was in viginti nobilis, it shall be inten∣ded twenty nobles, and good. Tanfeild said, that when there is no good and apt Latine words, for a thing, & no unapt Latine word is put in the Bond for that thing, the Bond is void, as when a man is bound in quinque libris, it it was adjudged in Mich. Term, 5 Jac. that the Obligation was void, because there was a fit Latine word, and that was quinque, and so it was adjudged in the Lord Danvers Case, where the Indictment for one blow super capud, and it was held void, because it was an unapt word, and there was a fit and apt word, to wit Caput, and VVilliams agreed to this, for he said it was adjudged in the common Pleas, between Pencrosse and Tout, a man was bound in a Bond in viginti literis, when it should have been viginti libris, and adjudged void for the same cause, but after in Hillary Term the Plain∣tiffe had Judgement, because in one Dictionary nobilis was a Latine word for six shillings eight pence.

VEntris versus Farmer, Trin. 5. Jacobi. A Lease was made for * 1.329 years, rendering Rent payable at a place of the Land: and the Court was moved, whether a Demand of the Rent may not be made upon the Land, but denied by the whole Court; for they said, that the Demand must be made at the place of payment, although it be of the Land.

FIeld versus Hunt, Mich. 5. Jacobi. Hunt in VVorcester Court ob∣tained * 1.330 a Judgement after a Verdict in Debt upon a Contract, for twenty Sheep, and after it was removed by a Writ of Error into the Kings Bench, and generall Errors assigned: but upon opening the Er∣rors, it was shewed the Court that there was no Declaration in VVor∣cester Court; for the Declaration was thus, Raphael Hunt complains against H. Field of a Plea, that he render to him twenty pounds which he owes unto him, and unjustly detains, and whereof the same Plain∣tift by M. his Attorney, whereas the said Defendant, &c. and by Fennor, VVillams, and Cook, it is no Declaration for Default of this word Dicit, and the sense is imperfect: and although Yelverton objected, that a Declaration is sufficient, if it be good, to a common intent; and Quer. being writ short, it may be Queritur, and then it is, and whereof the same complaines; but the Court held that would not help, for it is not certain to whom the word Idem should refer, whether to the Plaintiff or Defendant, and of the two it should rather refer to the Defendant which is the next Antecedent; and the Court held it matter of substance which is wanting, and therefore naught; but if it had been 4. and whereof the same Ra∣phael quer. being writ short, it had been good; for because the party Plaintiff is certainly named, and then Quer. could have no other sense then Queritur, and Judgement reversed, which mark.

HArrison versus Fulstow, Mich. 5. Jacobi. The Plaintiff brought Action of Debt for fourscore and six pounds, in the Common * 1.331 Pleas, against T. Harrison, and the Capias was continued accordingly against T. Harrison, but the Plur. capias was against William Harri∣son, which was the very name of the Defendant, and that was but for fourscore and five pounds, which varied from the first Entry; and William Harrison appeared upon the Exigent, and the Plaintiff de∣clares against William, and he pleads, and they are at Issue by the name of William, and a Verdict for the Plaintiff, and Judgement ac∣cordingly against William, and upon a Writ of Error it was assigned for Error, that the Original did not maintain the Proceedings, for the Original is against Tho. and the Proceedings against William: and the Plaintiffs Counsel would have excused it, because the Judgement being against William, and the Original against Tho. as it is certified, it can∣not

be the Original against William, and so the Judgement against William being without Original it is aided by the Statute after a Ver∣dict: but the Court held it to be Error; for there is great Difference between no Original and a naughty Original; for the want of an Original is helped, but not a vitious Original, and Judgement was re∣versed; for upon Diminution alleadged, that this Original was certi∣fied as the Original in that Suit, or else there was no Obtulit at all.

LOthbury versus Humfrey, Mich. 5. Jacobi. Lothbury and his Wife Administratrix of VV. R. brought an Action of Debt as Admi∣nistrator * 1.332 upon an Obligation of forty Marks, dated 4. April, 38 Eliz. made by the Defendant to the Intestate, 1. the Defendant pleades that Ridge the Intestate. October, the first Jacobi. made his Will, and made the Defendant his Executor, and devised the Obliga∣tion, and the Money therein contained to one H. Son of the Defen∣dant, and died, after whose Death the Defendant takes upon him the burthen of the Executorship, and administers divers Goods of Rid∣ges, and that he is ready to aver this: to which Plea the Plaintiff de∣murrs generally, and adjudged for the Plaintiff; for the Defendants Plea is not good without a Traverse, that Ridge died intestate. For the Action is brought as Administrator, and they count upon a dying intestate, and that being the ground of the Action ought to be tra∣versed, as it is 9 H. 6. 7. Debt brought against one as Administrator of J. and counts that J. died intestate; the Defendant pleads that J. made his Will, and made him Executor, and held no Plea without a Traverse; and the same Law, 7 H. 6. 13. Debt brought against one R. Executor of R the Defendant pleads that R. died intestate at such a place, and held no Plea; for if the Plaintiff maintain that R. made the Defendant Executor, and the other say, that R. died intestate at such a place, this makes no Issue, and therefore the Defendant ought to traverse that R. died intestate without that, that he made him Executor, and 4 H. 7. 13. the very Case in question is adjudged, that such a Plea in Barr is not good, without a Traverse, to wit, to say without that, that R. died intestate, according to the 3 H 7. 14. and this was agreed by the whole Court without Argument.

CHeyney versus Sell, Mich. 5. Jac. Cheyney as Executor of Cheyny, * 1.333 brought an Action of Debt upon an Obligation against Sell, & the case was, that the Testator had put himself as an Apprentice to Sell for seven years, and Sell bound himself to pay to his Apprentice, his Exe∣cutors, or Assignes 10 l. at the time of the end or determination of his Apprentiship, the Apprentice serves six years, and then dies, and it was moved by Towse that the Money was due at the time of his Death, because then his Apprentiship ended, for he said, if a man make a Lease for one and twenty years to another, and oblige himself to pay

to the Lessee ten pounds at the end and expiration of his Term, and within those years the Lessor infeoffes the Lessee, so the term expires, and the ten pounds should be paid instantly; but Cook denied that Case, because the Lessee hastened the end of his terme; but he said, that if a man lease Land to another for seven years, if the Lessee should so long live, and the Lessor oblige himself to pay ten pounds at the end of his terme, and he die within seven years, there he was of opinion, the Money was presently due upon his Death, but in the principal case, the whole Court held, the chief Justice being absent, that the Obligation was discharged, and that the Money should notbe paid.

WIllot versus Spencer, Mich. 9. Jacobi. The Plaintiff brought an Action of Debt for Tithes of Wood upon the Statute of * 1.334 2 E. 6. and Forster argued, that Judgement ought not to be given for the Plaintiff, because the Plaintiff did not shew in his Plaint that he was Parson; for he ought to bring his Action according to that name that he claimed the Tithes by, and this ought to be expressed in the Queritur, and therefore if a man bring his Action to recover any thing, as Heir, Executor, or Sheriff, he ought to name himself so in the Queritur, 30 H. 6. & 9 H. 4. but Towse said, the same Exception was taken between Merrick and Peters, and disallowed. Fleming Justice said, that if it had been by Writ he must have shewed it, but need not, it being by Plaint, if the truth appear in that, and if a man bring his Action as Assignee, he need not shew it in his Plaint, if the truth appear in the Declaration, but it is otherwise in an Original, and a Plaintiffe in Kings Bench, as an originall, but not in all things, and if the Plaint be incertain, the Defendant in that Court shall plead in Abatement of the Plaint, as to an Original in the Common Pleas; and at last two Presidents were shewen, one between Champion and Hill, and the other between Merrick and Wright, that were allowed without naming of the Plaintiff Rector in the Queritur, and Judge∣ment was given for the Plaintiff by the whole Court.

Note, it was agreed by all the Court of Kings Bench, Mich. 5. Jac. * 1.335 and hath many times been ruled, that if a man sell his Tithes for years by word, it is good; but if the Parson agree that one shall have his Tithes for seven years by word, it is not good, by the opinion of Fleming Cheif Justice, because it amounts to a Lease; and he held strongly, that Tithes cannot be leased for years without a Deed.

COb versus Hunt, Hill. 5. Jac. Cob sued a Prohibition in the Com∣mon * 1.336 Pleas against Hunt Parson of D. in Kent, and suggests a Modus demandi, as to part of the Tithes demanded against him in the Spiritual Court, and as to the residue suggests a Contract, execu∣ted and performed between him and the Parson, in satisfaction of the

residue, and because he proved not his Suggestion within six Moneths, Hunt the Parson had a Consultation, and Costs assessed by the Court to fifty shillings, and Damages fifty shillings by the Statute of the 2 E. 6. they shall be doubled, but in truth no Judgement was given to recover them, because these words, Videlicet, Ideo considerat. fuit qd. recuperet, was omitted: yet Hunt thinking that all was certain and perfect, brought an Action of Debt in the Common Pleas for the Costs, &c. and declared of all the matter above, and that the Dama∣ges were assessed, upon which it was adjudged, that he should reco∣ver, &c. and that the Costs were not paid, Per quod Actio, &c. And had a Judgement against Cob, by Non sum informat. and thereupon Cob brought his Writ of Error, as well in the Record and Processe, &c. of the Prohibition, as of the Record and Processe in the Action * 1.337 of Debt for the Costs, and assigne the general Error: but Yelverton assignes two Errors in special; first, that there was no Judgement in the Prohibition for Recovery of the Costs, but onely an Assessement of Costs without any more, which is not sufficient; for the Assesse∣ment of Costs onely is but matter of Office in Court, but no Judge∣ment of Court to binde, which was confessed by the whole Court. The second Error was that no Costs ought to be assessed or adjudged in the Cause above, because the Prohibition is grounded solely upon the Modus decimandi, which needs proof, and upon the Contract be∣tween the parties, which requires no proof; and the Suggestion being intire, and part of it needing no proof, they could not give any Costs, for that is onely where the whole matter in the Suggestion needs proof; and therefore the mixing the Contract with the manner of Tithing priviledges the whole, as to the matter of Costs: but they might grant a Consultation, as to that part of the Suggestion which concerned the manner of Tithing, but not for the rest, which was granted by the whole Court, and so both the Judgements were re∣versed, which mark.

MArkham versus Mollineux, Hill. 1. Jac. Mollineux sued out * 1.338 an Original in the Common Pleas in an Action of Debt upon a Bond against Markham, by the name of John Markham, Alderman de D. and all the mean Processe are continued against him by the name of Alderman Markham he appeared, and the Plaintiff decla∣red against him by the name of Markham of D. Esquire, and after∣wards the parties were at Issue, and it was found for the Plaintiff, and Judgement entred; and it was reversed by Writ of Error, because it did not appear that, that Markham was the same Markham, against whom the Original was prosecuted, and the Processe continued, but it seemed rather that he was another person by reason of his severall Additions of Alderman and Esquire, which mark.

OLiver versus Collins, Pasch. 6. Jacobi. The Plaintiff brought an * 1.339 Action of Debt upon the Statute, for not setting forth of Tithes, and shews that he is Parson of the Parish Church of Little Lavar, in Com. Essex, and that the Defendant had so many Acres within the Parish of Little Lavor, sowed with Wheat, whereof the tenth se∣vered from the ninth part came to eight and twenty pounds, and shews that the Defendant at Little Lavor aforesaid took and carried away the Wheat without setting forth the Tithes, contrary to the Statute, by reason whereof he forfeited threescore Pounds, and upon Nil debet pleaded it was found for the Plaintiff, and moved in Arrest of Judgement; first, that the Statute was mis-recited, for whereas the the Plaintiff declared, that the 4. Novemb. 2 E. 6. it was inacted, it was said, that there was no such Statute; for the Parliament com∣menced 1 E. 6. and continued by prorogation untill the 4. Novemb. 2 E. 6. and therefore the Plaintiff was mistaken in that, but that Ex∣ception was not allowed, for there were an hundred Presidents a∣gainst it; and in respect of the continual use in that form, as the Plaintiff had declared, the Court said, that they would not alter it, for that was to disturb all the Judgements that were ever given in that Court. And secondly, it was objected, that the matter was mis-tried, and there ought to be a new Triall, because the Venire facias was of Parva Lavar, whereas by their pretence it ought to have been of the Parish of Little Lavar, to which Yelverton made Answer, that the Triall was well enough, for by that Action no Tithe is de∣manded nor recovered, but the Defendant is onely punished for his Contempt against the Statute, in not setting forth his Tithe, and the wrong done to the Plaintiff complained of, is laid onely in the Vil∣lage of Little Lavor, and not in the Parish; for all the places in the Declaration where the Parish is named, are onely matter of Con∣veyance and inducement to the Action, and not of the substance, for the substance is onely that where the wrong and grievance is done to the Plaintiff, and that arises onely in Parua Lavor, which was granted by the whole Court upon a grand Debate, at severall Dayes, and Judgement was given for the Plaintiff: and the like Judgement was given between Barnard and Costerdam in an Action upon the same Statute, upon the last point for the Venn; and this hath been twice adjudged; but in Costerdams Case which concerned the Earl of Clan∣rickard, with whom Yelverton was of Councel, it was resolved, that if the Issue be upon the custome of Tithing, and that it be found a∣gainst the Defendant, he shall pay the value expressed by the Plaintiff in his Declaration; for because by the collateral matter pleaded in Barr, the Declaration is in whole confessed.

SMith versus Smith Trin. 6 Jacobi one Bisse made K. his Wife, and * 1.340 John his Sonne, being one year old Executors and K. solely pro∣ved the Will, and afterwards married the Plaintiff, and they two brought an Action of Debt as Executors against the Defendant, and the Defendant pleads in abatement of the Bill, that John was made Executor with K. and is yet in life, and not named, the Plaintiffes reply, that John was but of the age of one year, and that K. proved the Will, and had Administration committed to her during the mino∣rity, and that John is, and was at the time of the Writ purchased within the age of seventeen years, and upon that Yelverton demur∣red, and adjudged for the Defendant that the Bill should abate, for both of them in truth were Executors, and ought to be named in the Action, and although by the Administration granted during the mi∣nority, K. had the full power, yet the Infant ought to be named, he being Executor.

GOmersall versus Ask, Trin. 6. Iacobi, The Defendant brought an Action of Debt against the Defendant as Administrator of her Husband, upon two former Judgements given in two Actions of Debt against the intestate, and shews the recoveries, the Defendant pleads that the intestate entred into a recognisance 35 El. in Chancery to Sir Henry Bechel, and shows, that after the Judgements had by the Plain∣tiff, Sir H. obtained a Judgement against the intestate, upon the Re∣cognisance, and that she hath not assets to satisfie the Plaintiff of the intestates Goods, beyond Goods that are chargeable and liable to the Judgement upon the Recognisance, to which Plea the Plaintiff demurres, and by Fennor and Williams justifies the Plea in Barr was good; for although the Plaintiffes Judgements mentioned in his A∣ctions are before Sir H. Judgement, yet because the Plaintiff by his Action doth not demand Execution of the Judgements, but onely his Debt recovered, for this Action brought it as an originall, and in the same Court, as if he did demand the Debt upon the first Obligation, and therefore because the Plaintiff had not sued out a Scire facias, to execute the first Judgements, but had prosecuted, a new originall the Plea is good and allowable, as it had been upon the said Ob∣ligation, but Yeluerton and Fleming were of a contrary opinion, for the Plea had not been good against the intestate himself, and the Executor or Administrator represents his person, and therefore the Plea is not good, but onely in excuse of a Devastavit, and they were of opinion, that the Action brought by the Plaintiff, was in nature of a Scire facias, for he demanded the Debt in another course, then it was at first, for that Debt which was but matter of escript, is now be∣come by the Judgement to be Debt upon Record, and of so high a na∣ture, that the Judgement being in Force, he can never have an Action

upon the Obligation which is adjuged in Higgins Case, Co. 6 Rep. but Cook doubted, and the Plaintiff dying, the Court did not resolve.

APleton versus Baily Mich. 6. Jacobi. Apleton as Executor of Aple∣ton * 1.341 brought an Action of Debt against Baily for the Arrerages of diverse Rents as well Copy-hold Rents, as Free-hold Rents per∣taining to a Mannor, whereof the Testator was seised and thereof di∣ed seised, and the Rents were not paid to him in his life time, by rea∣son whereof they belonged to the Plaintiff as Executor: And the Defendant though he was requested had not paid against the form of the Statute of the 32 H. 8. And the Court, that the Action, did not ly for the Arrerages of Copy-hold Land, for the Statute of the 32 H. 8. doth not extend to them, but only to Rents out of Free Land. Secondly, It lies not for the Rent of free Land, because the Plaintiff hath not shewed in his Declaration that the Defendant had attorned to the Testator in his life. And although in pleading it is good to al∣ledge a Feoffment of a Mannor, without pleading any Livery, or of a∣ny Attornment of Tenements, but when the Rent of any Free-hold Land comes in Debate it behoves both the Owner of the Mannor and and his Executor that demands it, to convey the privity between the Tenant and the Lord which ought to be by attornment; for Rents and Services rest not without Attornment, which, mark.

PEirson versus Ponuteis Mich. 6. Jacobi The Plaintiff as Executor * 1.342 of Peirson brought an Action of Debt against Jo. Ponuties of Lon∣don Merchant, that he should render to him three and thirty pounds twelve shillings, in that the Defendant 5. Oct. 1598. at London, &c. By his Bill obligatory hath acknowledged himself to owe to the Te∣stator, 1518. Florens, Polish, which then amounted to thirty three pounds twelve shillings to be paid to the Testator, Ad solucionem festi purificat, &c. Called Candlemas day next insuing, and to that pay∣ment had obliged himself by the same Bill. And the Plaintiff avers that, Predicti soluciones dicti festi purificat, &c. Next after the ma∣king the Bill were according to the use of Merchants the twentieth of February 1598. Yet the Defendant had not paid the 1518. Florence, Polish, or the thirty three pounds twelve s. to the Testator nor to the Plaintiff. The Defendant pleads, Non est factum, and found against him, and moved in arrest of Judgment; that the Declaration was not good, because first the payment of Candlemas is not known in our Law, but that was not allowed for that which is unknown in ordinary intendment is made manifest, and helped by the Averment in the declaration, because that payment among Merchants is known to be upon the twentieth of February, and the Judges ought to take notice of those things that are used amongst Merchants for the maintenance

of traffick, and the rather, because the Defendant doth not deny it, but pleads non factum, by which he confesses the Declaration to be true in that averment. Secondly it was objected, that as the Case is, the use of Merchants is not materiall, because the Testator by any thing that appears, was not a Merchant, but it was not allowed, be∣cause the defendant that bound himself to pay, was a Merchant, and the Testator ought to take the Bill, as the defendant would make it, and he chose to make the payment according to the use of Merchants and not according to the Ordinary intercourse between party and party, which mark this by the whole Court.

TAlbot versus Godbold, Mich. 6. Jac. Godbold 28 Eliz. sealed a Bill to the Plaintiff made in this manner, memorandum, that I have re∣ceived * 1.343 of Edw. Talbot, who was the Plaintiffes Testator, to the use of my Master, Mr. Serjeant Gaudy the sum of forty pounds to be paid at Mich. following, the Plaintiffe brought an Action of Debt upon this Bill, and declared verbatim as the Bill was, and demanded the four pound, to which Declaration the Defendant demurred, and his pretence was as he supposed, because he had received the money but as a servant to another use, and so he ought not to be charged as a principall Debtor, for the Bill is but a Testimony of the Receit, as is the 1 H. 6. and 2 H. 6. in account, for there an Indenture testifying the Receit which under Seal did not alter the nature of the first ac∣count, but it was adjudged for the Plaintiff, for although the first part of the Bill witnesse the Receit to be to anothers use, yet in the last clause of the Bill, for the payment of the money, he doth not say to be repaid by his Master, for then it would not charge him, but the clause is generall to be repaid, which of necessity ought to bind him that sealed, for otherwise the party shall loose his Debt, because he had no remedy against Serjeant Gaudy, and because the Debt ap∣pears to be due, it shall be intended to go onely in satisfaction of a due Debt which mark.

ALexander, versus Lamb, Mich. 6 Jacobi, the Plaintiff brought an Action of Debt upon an Obligation of forty pounds against * 1.344 Lamb, as Executor, P. the Defendant pleads that P. in his life time was indebted to him in forty pounds due Debt, and that the goods of the Testator to the value of ten pounds came to the Defendants hands, which he retained towards satisfaction of his Debt, and aver∣red that no more goods beyond the goods to the value of ten pounds came to his hands to be administred, the Plaintiffe replyed and shew∣ed that the Defendant is Executor in his own wrong to P. and that he hath many other goods of P. to be administred at S. in the County of Norfolk, and concludes, & hoc paratum est verificare, &c.

the Defendant rejoyns, and demands judgement, if the Plaintiffe shall be admitted to say that the Defendant is Executor of his own wrong, seeing by his Declaration he had affirmed him to be Executor of the Testament, the Plaintiffe demurres in Law to this Plea, and as to the matter in Law, all the Court was for the Plaintiff, for he may well reply that the Defendant is Executor of his own wrong, notwithstanding the Declaration, for there is no other form of decla∣ring as is adjudged in Coults Case, 5 Rep. fol 30. but the whole Court held the whole Plea to be discontinued, for the Defendant having pleaded as to the Goods to the value of ten pounds, which he retai∣ned in his hands for a Debt due to him, and that he had no other Goods, and concludes, hoc paratum est definire, which is not good, for he ought to have said, & hoc petit quod inquiratur per patriam, for there being a surplusage of the Goods denied by the Defendant, and urged by the Plaintiff, it ought to come in issue, but could not by rea∣son of the ill conclusion, but in the same Term between West the Plaintiff, and Lane Defendant, West demanded four pounds Debt against Lane, as Executor, as above, and all the rest of the Plea, is as above, and Judgement was given for the Plaintiff, because the De∣fendant had confessed Goods to the value of ten pounds in his hands, which was more then the Defendant demanded, and therefore al∣though by Judgement of Law, an Executor of his own wrong can∣not retain Goods to pay himself, and although the other proceed∣ings in the Plea are naught, yet Judgement shall onely be given upon the confession of the Defendant, and so it was entered with Mark.

GReen versus Eden, Mich. 6 Jacobi, The Plaintiff brought an A∣ction * 1.345 of Debt upon an Obligation for a hundred pounds, dated September the third, 1 Jac. the Condition was, that if the Defen∣dant the fourth of September, anno 20 Jacobi, pay a hundred pounds to I. S. at such a place, and also save the Plaintiff harmlesse from any suit which should be brought against the Plaintiff, by reason of the Bond, in which he was bound to J. S. as Surety for the Defendant, then, &c. the Defendant pleaded, that true it was, that he by his Ob∣ligation bearing Date September the third 1 Jac. did become bound to the Plaintiff in two hundred pounds, but further said that the said Obligation was not delivered as the Defendants deed untill the se∣venteenth of September, in the second year of King James, and then it was first delivered, and further sayes that he had found the Plain∣tiff harmlesse, &c. to which plea, the Plaintiffe demurres, and adjud∣ged for the plaintiff, for the Bond mentioned in the Declaration is not answered, for the plaintiffe indeed, shows that the Defendant was obliged to him by his Obligation, bearing date the same Day, &c. which is laid to be a perfect Bond, the same day as the Plaintiff counts,

and then for the Defendant to come and say that it was first delivered the seventeenth of September 20 Jacobi, which is a year after, is no good Argument, but naught without taking a traverse, without that it was made the third of September 10 Jacobi. Secondly, as the De∣fendant hath pleaded, he hath made part of the Condition idle, and vain, for by the Condition it appears, that there is a Condition for the payment of a hundred pounds at a Day to come, to wit the fourth of September, in the second year, and now the Defendant by his Plea hath made the Day of payment, passed before he supposes the Bond to be delivered, within a manner takes away the effect of the Plaintiffs suit, and if the Condition had not stood upon two Branch∣es, but upon one onely, and the Defendant will plead the Delivery after the Condition becomes impossible to be performed, then is the Obligation become single for the whole two hundred pounds, which mark, by the whole Court.

BArret versus Fletcher, Pasch. 7 Jacobi, The Plaintiff brought an * 1.346 Action of Debt upon an Obligation of five hundred pounds, with a Condition to stand to the Award of J. S. and J. D. so that, &c. the Defendant pleads if the Arbitrator made no Award, the Plaintiff replies, and shews the Award made verbatim, and concludes that they had made an Award, and doth not assign any breach. The Defen∣dant rejoyns, that the Award pleaded, is not the Deed of the Ar∣bitrators, and Issue being joyned upon that, there was a Verdict for the Plaintiff, and Yelverton moved in arrest of Judgement, because the Plaintiff in his replication had not assigned any breach of the A∣ward, and so had shewed no cause of Action, for the replication is not for any Debt, but is guided by the Condition, and is for the per∣formance of a collaterall thing, to wit of an Award and although the Defendant had not answered any thing to the breach, if it had been as∣signed, yet the Court ought to be satisfied that the Plaintiffe had good cause of Action to recover, otherwise they should not give Judgement, and although a Verdict is given for the Plaintiff, yet this imperfection in the Replication, is matter of substance, and is not helped by the Statute, by the opinion of the whole Court, except Justice Williams.

BArwick versus Foster, Mich. 7 Jacobi. Action of Debt brought for * 1.347 Rent, the cause was thus, the Plaintiff leased certain Lands to the Defendant, at Mich. 1 Jacobi for five years, yielding and paying Rent at our Lady Day, and Mich. yearly, or within ten dayes after, and for rent behind at the last Mich. the Plaintiff declares, as for Rent due at the Feast of Saint Michael, and prima facie, it seemed to the whole Court, but Crook that the Action would not ly, but that

the Rent for the last quarter was gone, for it was not due at Michael∣mas, as the Plaintiff had declared, for his own, shewing it is payable, and reserved at Michaelmas, or within ten dayes after, & although the Lessee might pay it at Michaelmas Day, yet it is not any Debt which lies in demand by any Action, untill the ten dayes be passed, and the reservation being the Lessors Act, it shall be taken most strongly a∣gainst himself, and although the end of the Term is at Michaelmas, before the ten dayes, untill which time the Rent is not due, and be∣cause at that time the Term is ended, the Lessor shall loose his Rent; as if a Lessor die before Michaelmas Day, the Executor shall not have the Rent, but the Heir by discent, as incident to the Reversion, and if the Lessee should pay the Rent to the Lessor at Michaelmas day, and the Lessor should dye before the tenth Day, his Heir, being a Ward to the King, the King shall have it again, for of Right it ought not to be paid untill the tenth day, according to the 44 E. 3. but this Case being moved again in Hillary Term, Fleming, Fennor and Yelverton, changed their opinion, and held that the Lessor should have the Rent, for it was reserved yearly, and the ten dayes shall be ex∣pounded to give liberty to the Lessee within the Term, for his ease to protract the payment, but because the ten dayes after the last Mi∣chaelmas are out of the Term, rather then the Lessor shall loose his Rent yearly, the Law rejects the last ten dayes.

MOlineux versus Molineux, Hill. 7 Jacobi. An Action of Debt * 1.348 brought against Mo. upon an Obligation, as Heir to his father, the Defendant pleads, that he hath nothing by discent, but twenty Acres in D. in such a County, the Plaintiff replies, that the Defen∣dant had more Land by discent in S. to wit, so many Acres, and up∣on this they are at Issue, and found for the Defendant, that he had nothing by discent in S. by reason of which the Plaintiff could reco∣ver, and had his Judgement to have Execution of the twenty Acres in D. upon which Judgement in the Common Pleas, the Defendant brought his Writ of Error, and assigned for Error a discontinuance in the Record of the Plea, from Easter Term, to Michaelmas Term after, and whether this were helped by the Statute of 18 Eliz. be∣cause it was after a Verdict was the question, and adjudged to be out of the Statute, and that it was Error, for the Judgement was not grounded upon the Verdict, but onely upon the confession of the De∣fendant of Assetts, and the Verdict was nothing to the purpose, but to make the Defendants confession more strong, and therefore the Statute of the 18 of Eliz. is to be intended, when the triall by Ver∣dict is the means and cause of the Judgement, which mark; and there∣fore the Judgement was reversed, the Law seems to be the same, if the Plainiiff brings an Action of Debt for forty pounds, and declares

for twenty pounds upon a Bill, and twenty pounds upon a non tenet, and the Defendant confesses the Action, as to the money bor∣rowed, and they are at issue, as to the money demanded by the Bill, which Passes also for the Plaintif, by reason wherof he hath Judgement to recover the forty pounds demanded, and the Damages assessed by the Jurors, and Costs intire, in which Case if there be a discontinu∣ance upon the Roll, it seems that all shall be reversed, notwithstand∣ing the verdict, for the verdict is not the onely cause of the Judge∣ment, but the Confession also, and the Costs assessed intirely for both, but yet inquire of this.

It was adjudged by the whole Court, that in those Cases, where * 1.349 an Executor is Plaintiff, touching things concerning the Testament, and is non-suited, or the verdict passes against him, that he shall not pay Costs upon the new Statute of 4 Jac. for the Statute ought to have a reasonable intendment, and it cannot be presumed to be any fault in the Executor, who complains, because he cannot have perfect notice of what his Testator did, and so it was resolved also by all the Judges of the Common Pleas.

GOodier versus Jounce, Trin. 8 Jacobi. Jounce recovered in the common Pleas a hundred and thirty pounds against Goodier, in Crastino Animar. 6 Jacobi, and the eight and twentieth of Novem∣ber the same Term, being the last Day of the Term, the Plaintiff pro∣ved an Elegit against Goodier, to the Sheriffs of London, where the Action was laid, and to the County Palatine of Lancaster, returnable, Crastino Purificationis, after; which was granted by the Court, and by the Elegit, to the County Palatine, it appeared, that it was grounded upon a Testat. returned by the Sheriffs of London, that Goodier had nothing in London, where in truth they never made such a Return, and upon that Elegit by a Jury impannelled before the She∣riff of Lancaster; a Lease of Tithes was extended for fifty nine years then to come, at the value of a hundred pounds, which the Sheriff delivered to J. the Plaintiff, as a Chattell of Goodiers, for a hun∣dred pounds, and returned it, and that Goodier had no more Goods, &c. and thereupon Goodier brought a Writ of Error in the upper Bench, and assigned for Error, that no Return was made by the She∣tiffs of London, nor filed in the common Pleas, as was supposed in the Elegit, and it was adjudged Error, for although the Plaintiff might have an Elegit, as he desired in the common Pleas, immediately both into London and Lancashire, but seeing he waived the benefit thereof, and grounded his Execution upon a Testatum, which was false, it was Error in the Execution, for as it appears, 18 H. 6. 27. and 2 H. 6. 9. that a Testatum is grounded upon a former Return filed, that the par∣ty had nothing in the County where the Action was brought, and

because it appeared upon Record, that the prayer of the Elegits was made the eight and twentieth of November, the last day of the Term, and by the Testatum it is supposed that the Sheriffes of London had returned quindena Martini which is before the eight and twentieth of November, that the Defendant had nothing in London, which seemed to be contrary to the Record, yet that is not materiall, but makes the matter more vitious, for it may well be, that since the Judgement was Crastino animarum, a Testatum might not issue out returnable Quindena Martini, and it shall be the Plaintiffes fault that he did not file it, and it shall be presumed to be such a Writ, as the Plaintiffs own Processe doth recite, and note that the whole Court did adjudge in this Case, that Goodier should be restored to the Term again, and although it was valued by the Jury, but at a hun∣dred pounds, and delivered to Jounce the Plaintiff to hold as his own Goods and Chattells, yet Goodier shall have it again from Jounce, for he being the party himself, it is in Law but a bare delivery in specie, and therefore ought to be restored in specie again, and doth not ab∣solutely alter the property, but attends upon the Execution to be good or naught, as the Execution is, and so it was adjudged before, in Robothams Case, and also in Worrells Case, as Mr. Noy said to Yelverton, but it had been otherwise, if the sute had been to an e∣stranger, by the Sheriff of the Term, for a hundred pounds accord∣ing to the opinion of 28 Eliz. Dy. for it is the parties folly, that he doth not pay the Judgement, and if such sales should be made void none would buy Goods of the Sheriff, by reason whereof, many Ex-, ecutions would remain undone, and this by the opinion of the whole Court.

SMith versus Newsam and his Wife, Mich. 6 Jacobi. The Plaintiff, as Son and Heire of Geo. S. his father, brought an Action of Debt against the Defendant for twenty Marks, and declares that his father, April the twenty seventh, 25 Eliz. leased to the Defendant one house, &c. in B. in the County of Bedford, from Michaelmas next fol∣lowing, for one and twenty years, yielding and paying during the Term, if the Father should so long live, thirty pounds at our Lady day, and Michaelmas, by equall portions, and yeelding and paying to the Heires and Assignes of the Father after his death twenty Marks, at the Termes aforesaid, by vertue whereof the Defendant entred, and occupied from Michaelmas 35 Eliz. &c. the Father dyed the fourth of May 7 Jur. at B. and because twenty Marks for a half years Rent were behinde, the Action was brought, the Defen∣dant demurred to the Declaration, and adjudged against the Plain∣tiff, * 1.350 for the clause by which the Court is reserved to the Heirs, gives but twenty Marks for the whole year, and not twenty Marks every

a year, and therefore the Plaintiff had mistaken his demand in suing for twenty Marks, for one half year, (for these words ad Terminos praedictos) are onely the time of payment of the twenty Marks which were to be paid as the thirty pounds were, and although in the clause that reserved the Rent to the Heirs, the words (by equall portions) were omitted, yet the Law will supply them, as it is in the 13 H. 9. Avowry 2. 40. Rent granted to be taken at two Termes of the year, and they named it shall be intended by equall portions, although the Deed makes mention of that, for the reservation being the Act of the Lessor, shall be taken most strongly against him and his Heirs, and therefore shall have but twenty Marks for all the whole year, and no more, as in Perkins 22, two tenements in common make a Lease, ren∣dring ten shillings, it shall be five shillings to each of them March 171. according to it the second cause of the Judgement was because the Plaintiff brought this Action as Heire to his Father, and doth not shew in his Declaration, that the Reversion descends to him, and the Rent demanded, is incident to the Reversion discended, and so the Plaintiff doth not make any Title to have the Rent, which mark, and Judgement was given, that the Plaintiff should take nothing by his Bill.

NEale versus Sheffeild Trin. 8. Jacobi rotulo. 782. The Plaintiff * 1.351 brought an Action of Debt upon an obligation for fourteen pounds, the condition was that if the Defendant should pay seven pounds to the Plaintiff upon the birth-day of the Child of John living which God shall send after the Date of the Bond then, &c. The De∣fendant pleads, that the Plaintiff after the making of the Obligation and before the birth of any Infant of the said J. living to wit the 1. September 7. Jacobi was indebted to the Defendant in one load of Lime to be delivered upon request, and the same day it was agreed between them at L. that if the Defendant would discharge the Plain∣tiff of the said load of Lime, that then in consideration thereof, the Plaintiff would discharge the Defendant of the said Obligation, and would accept the said load of Lime, which the Plaintiff accepted in discharge of the Obligation, and did then acquit the Defendant of the said Obligation, and demands Judgement, to which Plea, the Plain∣tiff demurres, and adjudged for the Plaintiff for two causes, first be∣cause the Defendant had pleaded his Barr in discharge of the Obliga∣tion, whereas he should have pleaded it in discharge of the same con∣tained in the Condition of the Obligation, for it is not a Debt sim∣ply by the Obligation, but the performance or breach of the Con∣dition makes it to be a Debt, for the Obligation is proved by the Con∣dition, so that if the Condition be not discharged the Obligation re∣mains in his force and the matter in the Barr is not pleaded in dis∣charge

of the Condition, but of the Obligation, and therefore it is * 1.352 not good, which mark. Secondly, it appears that the Condition it self cannot be discharged; for the seven pounds is not due nor paya∣ble untill the Birth of the Childe of John living, which is a meer Con∣tingency, and remote possibility, whether he shall ever have a Childe or no; and therefore it resting in Contingency, whether it will ever be a Debt or no, it cannot be discharged; for a possibility cannot be released, as it hath been adjudged in Carters Case, and it is not to be resembled to the Case where the Condition is to pay Money at a Day to come, for that may be discharged presently, for it is presently a Duty, although it be not demandable untill the Day; and there∣fore because it cannot be known whether the Day will ever come wherein John will have a Childe; and because it is no Debt nor Du∣ty, therefore it cannot be discharged, by the opinion of the whole Court.

DOdson versus Keyes, Mich. 8. Jacobi. The Plaintiff brought an * 1.353 Action of Debt upon an Obligation for ten pounds, and declares that the Defendant 23. Octob. 1608. at M. became bound to the Plaintiff in ten pounds to be paid upon request; the Defendant de∣mands Oyer of the Obligation, which was entred in haec verba, No∣verint universi per praesentes me Thomam Keyes tenerie & firmiter obli∣garie Edw. Dodson, &c. Anno Regni Reginae Dom. nostri Jacobi, &c. Rege Defensor suis de Scotia sexto & Angliae quadragesimo secundo, 1608. And upon this the Defendant demurred, and adjudged for the Plain∣tiff; for there are two principal things to be contained in one Obliga∣tion; first, the parties to whom: secondly, the summ in which one party is bound, and they are both here expressed sufficiently to the view of the Judges, for both the Obligor, and Obligee, are well na∣med, and also the summ is well expressed to be ten pounds, but those words, by which it may be gathered, that the party intends to binde himself, are found in false Latine, Videlicet, (tenerie & obligarie) in which words there is onely an e. too much; and it is true, false Latine, as it is, 10 H. 7. shall abate a Writ, because the party may purchase a new Writ, but it shall not overthrow an Obligation; for the party cannot be again bound when he will: and although there is no such year of the Reign of the King, as of Scot∣land, the sixth, &c. it is not material, for it is good, though it have a false Date, as 13 H. 7. Kelly, and the party may surmise a Date in his Declaration, and it is good, and the Defendant must answer to the Bond, and not to the Date, and the Law is the same, if it have an im∣possible Date, as the 30. of February, whereas there is but eight and twenty Dayes in February, yet it is good: but in the principal Case it is helped by the Year of our Lord which is certain, and sufficient, and the

Declaration good, which had omitted the year of the King, and put in the year of our Lord, and Judgement was given by the opini∣on of the whole Court.

HAwes versus Leader, Hill. 8 Jacobi. Hawes brought an Action * 1.354 of Debt against Leader Administrator of Cookson, the Case was Thomas Cookson, the nineteenth of February, 20 Jacobi, for twenty pounds paid into the Defendants hands by the Plaintiff, grants all his Goods mentioned in a Scedule annexed to the Deed, and gives pos∣session of the goods by a Platter, and the goods remained in his house, as they were before, to be carried away upon demand by the Plaintif, and covenants that the intestate, his Administrators, &c. should safely keep them, and quietly deliver them, and to perform that co∣venant, the intestate binds himself in forty pounds to the Plaintiff, and afterwards Cookson died, and the Plaintiff, the sixteenth of March, the sixth of King Iames, demanded the goods of the Defendant, be∣ing Administrator, and he would not deliver them, by reason where∣of the Plaintiff brought his Action, and in his Declaration shews, in specie, what goods were contained in the Scedule, the Defendant pleads the Statute of the 13 Eliz. of fraudulent Deeds and gifts, &c. and further sayes that Cookson the intestate, the twelfth of February, 2 Ja∣cobi, was indebted unto divers persons, and names them in severall summes, amounting to a hundred pounds, and being so indebted the nineteenth of February, 2 Jacobi, made the Deed of gift, as is a∣bove declared, being then of those and other goods possessed a∣mounting to fourscore pounds and no more, and that it was made by fraud, and covin, between Cookson and the Plaintiff, to the intent to deceive his Creditors named, and shewes how that Cookson, notwith∣standing the Deed of gift, occupied, and used the Goods all his life, and died, and that Administration was committed to the Defendant, the Plaintiff replies, that the Defendant had assets in his hands, to sa∣tisfie the Debts demanded, and further sayes that the Deed of gift was made upon good considerations, upon which they were at issue and at triall at Huntington Assises, Cook rejected the Triall, because the Issue was not well joyned, and a Replender ordered, upon which the Defendant pleaded as is above, and the Plaintiffe demurred, and adjudged for the Plaintiff, first because the Defendant had not aver∣red in his Barr, that the Debts due, yet certain, unpaid to the Creditors named, for there was four years time between the Deed of gift made, and the death of the intestate, in which time the Debts might well be presumed to be satisfied. Secondly, the Defendant did not shew that the Debts due to the supposed Creditors were by speci∣alty, and then the matter of his Plea is not good, for the Defen∣dant cannot plead such a Plea, but to excuse himself of a Devastavit,

and that could not be as this Case is, for he being Administrator is not chargeable with the Debts, if they be not upon Specialty. Thirdly, the Defendant supposed that it would be a Devastavit in him, if he should deliver the Goods to the Plaintiff which were contained in the Deed of Gift, but that cannot be, for those Goods in the hands of the Plaintiff are liable to the Creditors, as an Executor of his 〈◊〉〈◊〉 wrong, if the Deed of Gift be fraudulent. And fourthly, it may be the Creditors will never sue for their Debts, and by that means the Defendant will justifie the Detainer of the Goods for ever, which would be very inconvenient. But if the Defendant had pleaded a Re∣covery by any of the Creditors; and that such Goods to the va∣lue, &c. had been taken in Execution this had been a good Plea. Fifthly, the Defendant is not such a person as is inabled by the Statute of 13 Eliz. to plead the Plea aforesaid, for the Statute makes the Deed void, as against the Creditors, but not against the party himself, his Executors, or Administrators, for against them it remaines a good Deed of Gift, and this by the opinion of the whole Court.

SAllows versus Girling, Pasch. 9. Jacobi. The Plaintiff brought an Action of Debt upon a Bond, and the Condition to stand to the * 1.355 Award of A. B. C. & D. of all Actions, Quarrels and Demands, &c. so that the said Arbitrement were made in writing, before such a Day by the said A. B. C. & D. or by any two of them under their hands, &c. The Defendant pleads that the said A. B. C. & D. nor any two of them made no Award: the Plaintiff replies, that A. and B. two of the Arbitrators, before the Day, by writing under their hands, &c. made an Award, and set forth the Award, and assigned a Breach in the Defendant for not paying of three pounds at a Day past limited by the Award, to which the Defendant demurrs, and it was adjudged the Plaintiff; and the Question was, whether the Award made by A. and B. alone were good or no, because the Submission was to four named, and in the Premises of the Condition the De∣fendant is bound to stand to the Award of four also, yet it was ad∣judged by the Court upon consideration had upon every part of the Condition that the Award made-by two alone is good; for the Arbi∣trators are made Judges by the assent and election of the Parties, and it appears that the parties put their trust not in the four joyntly, but joyntly and severally, and the Ita quod, &c. is an explanation of all the Condition that they four or any two of them might arbitrate all matters between them, and so much appears, 2 R. 3. 18. where two of one part, and one of another part put themselves to the Award of I. S. now by this Submission I. S. may arbitrate as well any matters between the two parties of one part, as between them, and the third because in the intent of the parties the end of their Submission was

to have peace and quietnesse: and 4 H. 4. 40. the Condition of a Re∣cognisance was, that if A. A. shall stand and abide the Award of four, named three, or two of them, of all matters, &c. which is a division of their power; and observe in the principal Case, that untill the Ita quod, comes the Condition is not perfect, for all the Condi∣•…•… is but one Sentence.

BRisco versus King, Trin. 9. Jacobi. The Plaintiff brought an Action * 1.356 of Debt upon a Bond for three hundred pounds, with a Condi∣tion, that the Defendant should perform all Covenants, Clauses, Pay∣ments, and Agreements, contained in one Deed poll of the same Date, made by the Defendant to the Plaintiff, the Defendant by way of Plea sets forth the Deed poll, in haec verba, in which Deed was con∣tained one Grant and Bargain, and sale of certain Lands made by the Plaintiff to the Defendant for one hundred pounds paid, and two hundred pounds to be paid, in which Deed there was one Proviso, that if the Defendant should not pay for the Plaintiff to one J. S. forty pounds, to J. D. forty pounds, &c. at such a Day, that then the Bargain and Sale should be void: and the Defendant pleads that he had performed all the Covenants, &c. comprised in the Deed: the Plaintiff assigned a Breach for the not paying of forty pounds at the Day, according to the Proviso; and the Defendant demurrs, and ad∣judged for the Defendant by the whole Court; for the Condition bindes the Defendant to perform other Payments then such as the Defendant is bound by the Deed to perform, for the Obligation was made but for the strengthning of the Deed, and the Deed requires not any compulsory Payments to be made, but leaves it to the will of the Defendant, or to make the payments specified in the Proviso, or in Default thereof to forfeit the Land to the Plaintiff, and therefore it appears that it was not the intent and meaning of the parties to make an Obligation with a Condition repugnant to it, and contrary to the Deed poll of Bargain of Sale, and by this means the Payment of forty pounds to J. S. which is made voluntary by the Deed poll, shall be made compulsory by the Obligation: but the word (Pay∣ments) in the Condition of the Obligation shall have relation onely to such payments contained in the Deed poll which are compulsory to the Defendant, and not otherwise; and because the neglect of the payment of forty pounds to J. S. assigned for the Breach is denied to be voluntary for the Defendant to pay or not, to which the Condi∣tion of the Obligation cannot in any reasonable construction extend, therefore it was adjudged against the Plaintiff.

WOolby versus Perlby, Mich. 9. Jacobi. An Action of Debt brought upon a Lease for years, the Plaintiff derives his Title * 1.357 by the grant of the Reversion, by way of bargain and Sale in Fee from the first Lessor, and declares that by an Indenture of such a Date, one grants bargains, and sells for money the Reversion to him in Fee, which Indenture was inrolled such a day, according to the form of the Statute, and because he shewed not in his Declaration in what Court it was inrolled, and the Statute of 27 H. 8. Parles, of many severall Courts, and that it is no reason to put the Lessee to such an infinite labour to search in all Courts, as well at Westminster, as in the Countrey with the Clerk of the Peace, and for this cause af∣ter a verdict, a nil capiat per Billam entred by the whole Court.

SIR George Savill, versus Candish Hill. 9 Jac. The old Countesse of Shrewsbury, had a Verdict against Savel, and upon a challenge * 1.358 of the Sheriff on the Plaintiffs part of the County of Derby, the Tenure was directed to the Coroners, who returned all the Writs, and at the Assises, a Tales was awarded, and the name of one of them of the Tales was Gregory Grigson, &c. and by postea returned by the Clerks of the Assise in the Common Pleas, the Tales was returned to be by the Sheriff, but in the entring up the Judgement it was made by the Coroners, and the name of the man of the Tales, by the Clerk of the Assise, was restored according to his right name Gregory, but entred in the Roll, by the name of George, and upon that Judgement Savill brought a Writ of Error, which depended ten years and more, and the first Plaintiff, who was the Countesse of Shrewsbury died, this matter being indiscussed, and Candish as Ex∣ecutor to the Countesse, revived all by Scire facias why he should not have Execution, and after many debates, the Judgement was reversed for three causes: first because upon the Pannell of the Ju∣rors names, after the twenty four Jurors were named, at the foot of the Pannell, two names were added to the Jurors, which in truth were the men of the Tales, but no mention was made that they were the names of the Jurors, impannelled, de novo, according to the form of the Statute, which ought to be, for at the Common Law the Justices of assise cannot grant any Tales, to supply the default of the first Jurors, but it is given only by the Statute of the 35. H. 8. which or∣dains that their names shall be added to the first Pannell, and this cannot be discerned to be done accordingly, if such a stile and Title be not made over their names viz. nomina Jurator. de noto apposit. se∣cundum formam Statuti, to distinguish what is done by the Common-Law, and what by the aid of the Statute, and also the Coroners names ought to be added to the Tales, at the bottom of the Pannell, and in this Case, their names were onely indorsed, which was upon

the Return of the first Pannell, and although divers Presidents were shown to the Court, wherein the names of the Jurors de novo appo∣posit. &c. were united upon the Pannell, yet the Court did not re∣gard them, because it seemed that they passed in silence without de∣bate had upon them, the second cause was because it appeared by the Return of the postea, that the Tales were returned by the She∣riff, which is error in the first Processe to the Coroners, and although in the Entry in the Common Pleas of the Judgement, it is made to be by the Coroners, yet it is not helped in this Case, for the warrant of the Roll is the Clerk of the Assises Certificate, and thus is that, the Tales was returned by the Sheriff, and the Court cannot intend it to be otherwise then is certified, and thirdly the name of the Juror in the Tales, which is, Gregory is made in the Entry of the Judgement to be George, and although the will shall be amended in this point according to the Certificate of the postea, then in the other point of the Return of the Tales by the Sheriff, it is not amendable, and so it is error every way, and the Judgement was reversed by the whole Court.

BRidges, versus Enion Hillar. 9 Jac. The Plaintiff declares, how * 1.359 that he and the Defendant, February tenth Anno 7. submitted themselves to the Award of S. R. Bodenham, who awarded they should be friends, and that the Defendant should pay the Plaintiff ten pounds at Miasummer following, at such a place, and the ten pounds being unpaid, the Plaintiff brought his Action, the Defendant pleads in Barr a release made by the Plaintiff to him, of all demands which was made, the tenth of April, before Midsummer, when the Debt was to be paid, and the release was of all demands, from the begin∣ning of the world, untill the tenth of April, and shows the Re∣lease to the Court, to which the Plaintiff demurres and adjudged a∣gainst the Plaintiff, for although the sum of Money awarded is not grounded upon any precedent Debt or contract between the parties, yet by the opinion of the Court it lies in demand presently, and the Plaintiff might assign it by his will, and the Executor should have it, and by the spirituall Law, Administration may be granted of it, be∣fore the day of payment, if the Plaintif dye before, yet it is not re∣coverable before Midsummer, nor will any Action ly for it, but it is a duty presently by the Award, and as the award is perfect present∣ly as soon as it is pronounced, so are all the things contained in the Award, if they be not made payable upon a condition precedent on the part of one of the Parties, as if an award be made, that if the Plaintif shall give to the Defendant at Midsummer one load of Hay, that then upon the Delivery of the Hay, the Defendant should pay the Plaintif ten pounds, in this case the ten pounds cannot be released

before the Day, for it rests meerly in a possibility and contingency, for it becomes a Duty upon the Delivery of the Hay onely, and not before; and therefore it is like the Case, 5 E. 4. 42. of a Nomine pene waiting upon the Rent, which cannot be released untill the Rent be behinde, for the not paying the Rent makes the Nomine pene a Duty; and the Case in question is like the Case, Littleton 117. where a man is bound to pay Money at a Day to come, for a Release of Actions be∣fore the Day cuts off the Duty, because by 7 H. 7. 6. it is a Duty pre∣sently, and the Case is stronger here, because the Release is of all De∣mands; which observe.

MOrgan versus Sock, Pasch. 10. Jacobi. Sock brought an Action * 1.360 of Debt upon an Obligation of fourteen pounds entred into by Ar. Morgan, Anno 1. Jac. against Tho. Morgan his Administra∣tor; the Defendant pleads that after the Death of Arth. and after Administration was to him committed, to wit, the 16, of September, Ann. 6. the Plaintiff brought his Original against him, of which he had no notice nntill the 24. of February Ann. 6. before which Day the Defendant was upon the Exig. for not appearing, which Exig. was returnable Tres Pasch. after, and that the 17. of Febr. which was before the notice, his Letters of Administration were re∣voked by the Archbishop, and granted to Rich. M. the Brother of Arth. which Rich. is now Administrator, and that he at the time of revoking the Administration had divers Goods of the Intestates in his hands, and shews them what they were, to the value of two hundred pounds, and that he after the Administration revoked, and before no∣tice of the Suit, had delivered them over to Rich. to wit, the 22. of February, 6. Jacobi, and that he at the time of the Administration revoked, had fully administred all the Goods of the Intestates, be∣sides the Goods delivered to Rich. &c. The Plaintiff replied, that the Administration was revoked by Covin between the Defendant and Rich. and upon that they are at Issue, and the Jury found it to be Covin, by reason whereof the Plaintiff had a Judgement to recover the Debt and Damages of the Goods and Chattels of the said Arth. at the time of his Death, being in his hands, to be levied, and upon that Judgement he brought a Writ of Error, and assigned for Error, that the Judgement ought to be conditional, to wit, to recover the Debt of the Goods of the Intestate, if so much remain in his hands, and not absolutely. But the Judgement was affirmed by the whole Court; for where the Judgement may be final and certain, there it shall never be conditional. And because it appears by the Defendants Plea, that he had two hundred pounds in his hands of the Intestates Goods, it would be in vain to give Judgement against him, if he had so much in his hands, seeing he himself hath confessed by his Plea,

that 〈◊〉〈◊〉 more in his hands then would satisfie that Debt; and if 〈…〉〈…〉 could not levy the Debt in the Defendants hands, he may upon the Defendants 〈…〉〈…〉 Damage return a Devastavit, and this by the opinion of the whole Court, and then there was shewed to the Court a President in the Common Pleas to that purpose.

DOnghty versus Fawn, Mich. 11. Jacobi. The Plaintiff declares upon an Obligation of an hundred and twenty pounds, dated 2. Novemb. 43. Eliz. And the Condition was, that one Edw. Astle by his last Will in writing of such a Date, had disposed the Wardship of the Defendant, whereof the Defendant was possessed, &c. if therefore the Defendant do save and keep harmlesse the Plaintiff, &c. from all Charges, and Troubles, &c. which may happen to the Plain∣tiff, &c. for or by reason of the last Will of the said Ed. A. or from any thing mentioned in that, touching or concerning one M. Fawn, or any Legacy or Bequest to her given or bequeathed, or otherwise from Ed. A. to her due, then the Obligation, &c. The Defendant pleads that the Plaintiff was not damnified. The Plaintiff replies, that after the Obligation made, one M. Smith in the behalf of Jo. and Ed. A. Sons of the said Ed. A. named in the Condition, did exhibite a Bill against the Plaintiff, as Administrator of A. in the Chancery, for the payment of the Portions of the said Sons, to which Bill the Plaintiff by way of Answer pleaded fully administred, and for the making good thereof, sets forth divers payments by him made, and amongst other payments shews that he had payed to M. Fawn, na∣med in the Condition, sixty pounds for a Legacy due by the Will of the said Ed. A. the payment of which sixty pounds was disallowed by that Court, and by the Order of the Chancery, sixty five pounds paid, for not allowing the first sixty pounds to Ed. A. the Son, which sixty and five pounds the Defendant had not repaid, though there∣unto requested, and so he was damnified; to which Replication the Defendant demurrs; and the opinion of the whole Court after a great Debate, was against the Plaintiff, for the Plaintiff in his Replica∣tion had alleadged two Causes to inforce his Damage; the first was, that the Plaintiff in his Answer in the Chancery had alleadged the payment of sixty pounds to M. F. for a Legacy due to her by the Will, and that such Allegation was rejected by the Court, of Chance∣ry, and neither of those matters are certainly alleadged, but by way of Implication, and not expresly; for he ought to have shewn that a Legacy of sixty pounds was given to M. F. by the Will of E. A. for although the Will of E. A. is recited in the Condition in the Date, against which Recitall the Defendant may not be admitted to say, that he made no such Will, yet the Legacy given to M. F. is not

recited in the Condition, if not in the General, against which the Defendant may take a Traverse, that Eáw. A. did not bequeath such a Legacy of sixty pounds, and upon that a good Issue may be taken. And secondly, the Plaintiff sayes, that the payment of the said sixty pounds was disallowed by the Court of Chancery, and doth not ap∣pear in the Replication where the Chancery was at that time, to wit, whether at Westminster, or at any other place, and it is issuable and triable by a Jury, whether any such Order of Chancery were made or not, for the Orders there are but in Paper, and are not upon Record to be tried by Record, but by a Jury: and the Plaintiff perceiving the opinion of the Court against him, prayed that he might disconti∣nue his Suit, which was granted by the whole Court; but Quaere of this, it being after a Demurrer.

WEaver versus Clifford, Pasch. 44. Eliz. rotulo 453. The Plain∣tiff brought an Action of Debt upon an Escape against Clif∣ford, * 1.361 and declares that one A. was bound to the Plaintiff in one Re∣cognisance of a hundred pounds to be paid at a Day, at which Day A. made Default of Payment, and the Plaintiff sued out two Scire fac. and upon the second Scire fac. a Nihil was returned, and the Plaintiff had Judgement to recover; and afterwards he sued out a Levari fac. and a Nihil being returned, the Plaintiff prosecuted a Capias ad satisfaciend. by vertue of which Writ the Defendant being then Sheriff took the said A. and afterwards at D. in the County of S. permitted him to go at large; to which the Declaration the De∣fendant demurred. Damport for the Defendant, and he shewed the cause of the Demurrer to be because a Capias upon the Recognisance did not lie; and he divided the Case into two parts, first whether a Capias would lie in the Case; and secondly, whether the Sheriff would take the Advantage of such a naughty Processe; and as to the first it seemed to him that a Capias would not lie, because it appeared by Herberts 5. Repub. fol. 12. And Garnons Case 5. Rep. fol. 88. that the Body of the Defendant was not liable to Execution for Debt, by the Common Law, but onely in Trespasse, where a Fine was due to the King, or that he was accountant to the King: and the Plaintiff could have no other Processe but a Fieri facias within the year, and if the year were passed, then he might have a new Original in Debt. But now by the Statute of Marlbrig, cap. 23. And Westm. 2. cap. 11. a Capias is given in Account, and by the 25 E. 3. c. 17. Capias is given in Debt and Detinue, and by the 19 H. 7. c. 9. the like Processe is given in Case, as in Debt and Trespasse, and the 23 H. 8. c. 14. a Capias is gi∣ven in a Writ of Annuity and Covenant, but Statute gives a Capias in this Case, and therefore it remaines as it was at Common, and by that it would not lie, which is also apparent by the Recognisance, for

that is, that if the Debt shall be levied of the Goods and Chattels, Lands and Tenements, &c. and doth not meddle with the Body, and by an expresse Authority, 13 & 14 Eliz. Dier, 306. Puttenhams Case it is held that the Chancery hath no Authority to commit the Defen∣dant to the Fleet, upon a Recovery in a Scire facias, upon a Recogni∣sance, because the Body is not liable. And for the second point, it seemed to him, that the Sheriff should take Advantage of this, which should be as void and as null, whereof a stranger may take benefit, and to prove this he took this Difference, when a Processe will not lie, and where it is disorderly awarded, as if an Exigent be sued out before a Capias, or an Execution before Judgement; for if that Pro∣cesse be originally supposed, there the Processe is but erroneous, in Druries Case, 8. Rep. 142. 34 H. 6. 2. b. But if the Action it self will not maintain the Processe as a Capias in Formedon, there that Processe is as void and null: and he took another Diversity, when the Capias is taken by the Award of the Court, when Judgement is given that he shall recover; for in that Case it shall remain good, untill it be re∣versed, because it is the Act of the Court; and so is Druries Case to be intended: but if the party himself take it, it is at his own peril, as here it is; for the Plaintiff hath onely pleaded, that he prosecu∣ted, &c. which is as void to the party who sued it out, and he shall have no benefit of it; but the Sheriff shall not be punished for false Imprisonment, because he is not to examine the illegality or validity of the Processe; for the 11 H. 4. 36. If a Capias issue out without any Original: and the party be taken, the Sheriff shall not be pu∣nished; and for these Reasons he prayed Judgement for the Defen∣dant: Noy was for the Plaintiff, and he agreed, that at the Com∣mon Law no Action did lie in this Case, as it hath been said; but he was of opinion, that this Case is within 25 E. 3. cap. 17. for the in∣tention and drift of the Statute was to give speedy remedy to re∣cover Debts, and the Action is all one in the eye of the Law, as if it had been done by Original, which in the equity of the Statute. And a Capias lies upon a Recognisance against a Surety for the Peace, and upon a Scire facias against the Bail in the Upper Bench. As to Puttenhams Case, the Reason, because he was not in Execu∣tion before. And for the second Objection, although the Capias did not lie, yet it is but Error; for if the Court had Jurisdiction to hold plea of the Cause, although the Process be naughtily a∣warded, it is but Error, of which the Sheriff shall not take benefit; and therefore if a Woman have recovered in Dower, and hath Damages in the Common Pleas, and thereupon the party takes a Capias for the Damages, and the party be taken, and suffered to go at large, it is an Escape, 10 Hen. 7. 23. and if a Capias be awarded in the Common Pleas, after the Record removed, it is

but Error, and so ruled, 13 E. 3. Title Barr, 253. But if the Court hath no Jurisdiction in the cause, as a Formedon brought in the upper Bench, as it is 1 R. 3. 4. or an Appeal in the Common Pleas, or where a Writ is awarded out of the Chancery, returna∣ble in Chester, these are void, and coram non Judice, and there ought not to be any arrest upon such a Writ, and he cited a Case, Trin. 31. and 37. Eliz. in the Exchequer, Woodhouse and Ognells Case, ruled ac∣cordingy, and as concerning the difference taken, there is no other form of pleading, but only, quod prosecutus fuit quoddam, &c. without saying, that it was by the award of the Court, and the Court at that time did strongly incline, that it was but Error at the most, but Mich. 11 Ja. It was adjudged by the whole Court, that the Capias could not ly, and that it was onely Error, of which the Sheriffe shall not take the benefit.

KKetleys Case, Pasch. 11 Jac. An Action of Debt brought for ar∣rearages of Rent, brought against R. upon a Lease for years, the * 1.362 Defend. pleads in Barr, that the time of the Lease made, he was with∣in age, to which the Plaintiff demurres, and upon the first reading of the Record, the question was whether a Lease made to an Infant be void, and it was said it should be void, otherwise, it might be ve∣ry prejudiciall to Infants, whom the Law intends not to be of suffi∣cient discretion, for the mannaging of Land, and also the Rent may be greater then the value of the Land, to the great impoverishing of the Infant, and took this difference, where it is for the apparant be∣nefit of the Infant, a sa Lease made by an Infant rendring Rent, and the like, and when it is but an implied benefit, as here, for the Law in∣tends that every Lease is made for the benefit of the Lessee, although prima facie, it seems to be but tail and trouble, but the Court held it onely voidable, as Election, for if it be to the Infants benefit, be that benefit apparant or implied, it shall be void in no Case, prima facie, as 21 H. 6. 31. b. but the Infant may at his Election make it void, for he shall before the Rent day come, refuse, and waive the Land, an Acti∣on of Debt will not ly against him, for otherwise, such a Lease shall be more strong then any Fine or Record, and great mischeif would insue, and as to the prejudice, it well be answered, for if more Rent be reserved, then the value of the Land, he ought to have set it forth, that it might have appeared to the Court, which is not done, for then clearly he should not have been bound, for there had been no profit to the Infant, as Russells Case is, 5 Rep. 27. for if an Infant release, it is not good, except he hath received the money, and it also appears by 21 H. 6. that if he did not enter and manure the Land, that an A∣ction of Debt would not ly against him, but the principall Case was without colour, for the Rent, and taking the profits were Land, as

one day of the Reservation, and secondly it was not shewed, that the Rent was of greater value, and thirdly, the Defendant was of full age, before the Rent day came.

HIggins Case, Pasch. 11 Jac. Action of Debt brought by Hig∣gins * 1.363 against Yelverton, was of an opinion at the Barr, that if one be arrested, upon a Processe in that Court, and he puts in Bail, and afterwards the Plaintiff recovers, that he might, at his Election take out his Execution either against the principall, or Bail, but if he took the Bail, or arrested him, or had him in Execution for the Debt, although he had not full satisfaction, he could not meddle with the Plaintiff, but if two be Bail, although one bee in Execution yet he may take the other also, and Coderidge, Justice, was of the same opinion, and Man the secondary, said it was the daily practice there, and so if the principall be in Execution, he cannot take the Bail.

HAukinson versus Sandilands, 11 Jacobi. The Plaintiff brought * 1.364 an Action of Debt upon an Obligation for forty pounds against the Defendant, who demanded Oyer of the Condition, and after∣wards pleads that the Obligation was made and delivered by him, and one M. who is still living at D, and demands Judgement of the Writ, to which the Plaintiff demnrres the words of the Obligation, were Noverint universi, &c. adquam solucionem bene & fideliter faciend. Obligamus nos vel quemlibet nostrum. And whether this was, should be accounted a Writ, Obligation, or Severall, at the Election of the Plaintiffe, was the question, and Ger. Cook was of opinion, that it should be brought against both, and his onely reason was, that at most the Plaintiffe had but an Election, for the word (vel) could not be taken for (et) as it is 11 H. 7. 13. a Grant made to J. S. at J. D. is void, and 20 H. 6. grant to two, to them, or to the Heires of one of them, is not good, and then if he had on∣ly an Election, he hath made that already, for the Defendant hath pleaded and averred, that is, was made by two, joyntly by the ap∣pearance, whereof he hath agreed to take it accordingly, but Yelver∣ton argued in this manner, that although the words in an Obligati∣on be not proper and apt, yet if they be substantiall, it is enough, and therefore 28 H. 8. 19. utrumque nostrum is adjudged good, and the 21 R. 2. 939. ad quam quidem solucionem obligamus nos, & singu∣los nostrum, is adjudged severall and joint and for a direct authority he cited 7 H. 4. 66. where an Obligation was, nos, vel alterum nostrum, and the Plaintiff brought severall Precipes, and adjudged good, that he might make it severall or joynt, and all the Judges were clearly of an opinion, that the Action was well brought, for as it hath been said,

the Plaintiff had his Election, and that Election would be said to be executed by the joynt Delivery, for there was no cause to make Ele∣ction untill the Bond was perfected, and therefore though one deli∣vers it at one time, and the other at another, yet the Plaintiff may have a caput Precipe, if he will, for the Election is in bringing the Action, and the words, (vel) and (&) are but Synonimaes, and Champions Case, Plowden 286. (&) is taken for (vel) and the 21 E. 3. 29. in Mallories Case, (u) is taken for (and) therefore they gave Judge∣ment that the Defendant should answer over.

FReeman versus Shield, Trin. 11 Jacobi, and adjudged Pasch. 12 * 1.365 Jacobi. Freeman brought an Action of Debt upon an Obligation against Shield, and proved Oyer of the Condition, which was that, if the Defendant should stand to the Award, and Arbitrement of J. S. that then, &c. the Defendant pleads that the Arbitrators, a∣warded, that whereas there was no suit in the Chancery, depending against the Plaintiff for divers matters, that the Plaintiff should be acquitted of that suit, and of all the matters contained in the same Bill, and the Defendant further alledges, that he did not make any prosecution of the said Bill, but that the Plaintiff stands acquit∣ted thereof, the Plaintiff replies that the Defendant after the said Award such a year and day, did exhibit a new Bill which did con∣tain the same matter which the first Bill had, and set forth at large, both the Bills, by which it appeared to the Court that it was so, to which Plea the Defendant Demurres, and the cause of the Demur∣rer onely was, because the Plaintiff had pleaded, that the Defendant had exhibited a new Bill, but had not alledged any Processe taken forth upon the same Bill, and if this be a breach of the award is the question, Govin was for the Plaintiff, and he was of opinion, that it was a breach for the words were quod staret acquietatus, and to be acquitted is not onely to be intended of an actuall disturbance or molestation, but if the party be put in fright, or is liable to any Pro∣cesse, it is a breach, 8 Ed. 4. 27. a Condition to save one harmlesse, if a Capias be awarded against him, although it be not executed, yet it is a forfeiture of the Bond, nay, though it was never delivered to the Sheriff, for otherwise the Plaintiff should be in continuall care & trouble, for fear lest the Defendant should do it, and so the Defendant may dally with him a long time, which shal be mischievous, & there∣fore it may be resembled to 9 H. 7. where if a man sell a thing with warranty to pay for it at a day to come, if the thing sold be corrupt, the party may have his Action of deceit, before the day of payment, because it is in the others power to bring his Action, and so it is in the Defendants power to serve the Plaintiff with Processe when he plea∣ses, and therefore it is a breach, Coventry for the Defendant; first

because it is no such Process as can prejudice, for neither goods nor Bo∣dy shall be taken, and therefore is not like the Cases before cited. And secondly, it is not such a process as our law respects or regards, for a Bill is but as a Petition: Haughton Justice was of the same opinion with the rest of the Judges, but adjourned untill Hill. 11. Jac. and an Exception taken, because the Defendant had not answered the Declaration, for the Condition is that he should be acquitted, & the Defendant plead∣ed that he hath been acquitted; and Cook was of opinion that it was good, and Pasch. 12. Jac. Judgement was given for the Defendant by the whole Court.

KIpping versus Swain, Trin. 11. Jacobi. The Plaintiff brought an * 1.366 Action of Debt against Swain, upon the Statute of 2 E. 6. for not setting forth of Tithes, and declares, whereas the Plaintiff being Proprietor of the Rectory of B. in the County of, &c. for the term of seven years, and that the Defendant was Occupier of Lands with∣in the same Parish for six moneths by a Devise made the tenth of March, Anno decimo Jacobi. And that the Defendant 27. Aug. the year aforesaid did cut his Corn there growing; and that the tenth of September then next following the Defendant being (Subdit. dicti Domini Regis) carried away the said Corn, not setting out the Tenth according to the Statute; and upon a Nil debet pleaded it was found for the Plaintiff, and it was moved in Arrest of Judgement, first, be∣cause of the Plaintiffs own shewing he had no cause of Action against the Defendant, for the interest of the Defendant in the Land was determined, before the Tithes were carried away; but the Court were of opinion, that it was no Exception, for although his interest in the Land was gone, yet he remained Owner of the Corn; for if * 1.367 Corn is cut, although a stranger take them away before severance, yet an Action will lie against him upon this Statute, for otherwise the intent of the Statute may easily be defeated. Another Exception was taken, because the Plaintiff said, he was (Subdit. dicti Domini Regis) which is a Fault incurable; for the Statute referrs Subdit. to his poli∣tick capacity, but Dicti goes to his natural and sole capacity; and so the force of the Statute shall be determined by his Death; and for this cause an Indictment upon the 8 H. 6. Contra pacem dicti Domini, had been severall times reversed; and of this opinion were three Judges, but Haughton doubted of it, and so it was adjourned.

PEnniworth versus Blawe, Trin. 11. Jacobi. The Plaintiff brought an Action of Debt upon an Obligation, and prayed Oyer of the Condition, which was, that he should stand to the Arbitrement of J. S. of all Suites, Quarrels, Controversies, and Debates, from the beginning of the World untill the making the Obligation, so that the Award be made in writing, under the hand and seal of N. S. and

should be delivered to the parties before such a Day, &c. and observe that the Sealing and Delivery of the Obligation was at twelve a clock the first of May: the Defendant pleads in Barr, that the Ar∣bitrators made an Award, and did deliver that to the parties above-said, but said further, that in the morning, and before twelve a clock the first of May aforesaid, one Debate and Controversie did arise between the parties, concerning a Trespasse committed by the Plain∣tiff the same morning, of which the Defendant gave notice to the Arbitrator, before twelve a clock of the said first of May, concerning which Trespasse the Arbitrator made no Award, and therefore pre∣tends the Award to be void, and demands Judgement; to which the Plaintiff demurrs; and Yelverton being for the Plaintiff, that the Plea was not any Answer to the Plaintiff, and therefore Judgement ought to be given; for the Plaintiffs Action is grounded upon an Ob∣ligation, as single, and the thing which helps the Defendant is the Condition indorsed, to stand to the Award of S. the which is re∣strained, so that it be delivered under the hand and seal: and if the Defendant will plead the Condition against the Plaintiff, he must plead it to be performed and executed according to the Submission by the Arbitrator, for else the Bond remaines as single: and so in this Case the Defendant pleads, that the Arbitrator made an Award, and that it was delivered by the Arbitrator; but whether it was delivered in writing or under his hand according to the Submission is not pleaded, and therefore it is no Answer to the Plaintiff, for he hath not pleaded an Award made according to the Condition, and therefore the Bond is single. Yea Cook argued for the Defen∣dant, and said, that the Plaintiff by the Demurrer had confessed that the Arbitrator had made no Award, as the Defendant had pleaded, and then he shal never have Judgement: for if it may judicially appear to the Court, that the Plaintiff had no Cause of Action he shall never have Judgement; and that the Plaintiff ought to have averred, and joyned with a Traverse of that the Defendant pleaded, to wit, that the Arbitrator had made an Award, and delivered it in writing under his hand and seal without that, &c. and as to the other matter of the Trespasse the same Day, and so he might have demanded Judgement, for his Plea doth but amount to the general Issue, that the Arbitrators made no Award: but Yelverton answered, that it could not be pleaded in any other manner then he had pleaded it, be∣cause he could not traverse it, because the Defendant himself had pleaded, that he made an Award: and although the Demurrer con∣fesse all matters in Deed, yet they are such onely as are well pleaded, as Burtons Case, 5. Rep. 69. And also although the Award pleaded cannot be intended the same Award specified in the Condition, yet the Plaintiff had good cause of Action; and all the Court, Fleming

being absent, were of opinion, that the Plaintiff ought to recover for the Reasons before alleadged, but as for that point whether the Con∣troversie that grew in the morning should be arbitrated, because there cannot be a fraction of Dayes, it was not argued, nor any opi∣nion of the Court delivered, onely Cook cited 5 E. 4. 208. that the Arbitrator ought to arbitrate of that, because the Condition was of all matters, untill the making the Obligation.

WHeeler versus Hayden, Trin. 11. Jacobi. W. Parson of the Church of A. brought an Action of Debt against the De∣fendant for Arrerages of Rent, and declared upon a Lease made to the Defendant for four years, if the Plaintiff did so long live, and continue Parson, &c. and upon a Non demisit pleaded, the Jury found an especial Verdict, to wit, that the Plaintiff had leased it to the De∣fendant for four years, if the Plaintiff shall so long live onely; and whether this Verdict was found for the Plaintiff or Defendant was the Question; and Cook Serj. seemed that it was found for the Plain∣tiff; for the main matter was, that he should lease it, if he so long lived; and the subsequent words are of no effect, because they con∣tained no more then by the Law was before spoke of; for the Law sayes, that if he be non-resident, or if he resign, or be deprived, that the Lease shall be determined, like to the 30. Ass. 8. A Lease to two, and the longest Liver of them, and the 17 E. 3. 7. A. A Lease to one of Land and a House for years, and that the Lessee may make good profit of it, this last Clause in both is idle; and Dallidge was of the same opinion; but Yelverton against them, for the Plaintiff had inti∣tuled himself to the Action by such a Cause; and if he fail in that it is his folly, and shall not recover; for the Lease upon which he de∣clared had two Determinations, the first by Death, the second by re∣moving; and the Jury had found the Lease onely upon the first De∣termination, and therefore various in substance; and therefore the Jury have found against the Plaintiff, as if a Lease be made by Baron and Feme, if they shall so long live & continue married, both of them ought to be found. Haughton to the same purpose, for when a Parson makes a Lease, if he shall so long live, he doth take upon himself, that he will do no Act by which the Lease shall be determined, but onely by his Death, for otherwise an Action of Covenant will lie against him; but if the other Clause be added, to wit, and shall so long continue Parson, then he may resign, or be non-resident without danger, and so there is great difference between the Verdict and De∣claration, and it was adjourned the Court, being divided in opi∣nion.

Dower.

MIch. 6. Jacobi. Dower may be brought as well against the * 1.368 Heir himself, as against the Committee of the Ward: but if an Infant be in Ward to a Lord in Chivalry, the Dower shall be brought against the Guardian in Chivalry. If Dower be brought against one who is not Tenant of the Free-hold, the Tenant before Judgement shall be received, and upon Default of the Tenant, and after Judgement he may falsifie.

MIch. 9. Jac. Dower demanded of the third part of Tithes of Wooll and Lamb in three several Townes, and it was demanded * 1.369 of the Court, how the Sheriff should deliver Seisin, and the Court held it the best way for the Sheriff to deliver the third part of the tenth part, and the third tenth Lamb, Videlicet, the thirtieth Lamb.

In Dower against the Lord Morley, the Tenant at the Day of ta∣king * 1.370 of the Inquest after the Jury had appeared, and before the Jury were sworn made Default, and a Pety Cape was awarded, and the Te∣nant at the Day in Banck informed the Court, that the Tenant is but Tenant for Tenant for Life, and that the Reversion is in one P. who at the Return in Banck ought to be received to save his Title, and the Court appointed him at the Return of the Pety Cape to plead his Plea.

HIH. 13. Jacobi. Allen and his Wife Demandants versus Walter in Dower of a Free-hold in Munden Magna, Munden Parva & B. * 1.371 the Sheriff returned Pleg. de prosequend, J. D. R. R. And the Names of the Summoners J. D. & R. F. And after the Summons made, and by the space of fourteen Dayes and more, before the Return of the said Writ, at the most usual Church Door of Munden Magna, where part of the Tenements lay upon the 27. of October, being the Lords Day, immediately after Sermon ended in that Church, he publikely proclaimed all and singular things contained in that Writ to be pro∣claimed according to the Form of the Statute in that behalf made and provided, L. P. Ar. Vic. And Exception was taken to the Return, because Proclamation was not made at the Doors of the Churches where the Lands lay, and the Court held it not necessary; but it was sufficient to make Proclamation at any of the Churches; but the Re∣turn

was insufficient, because he said, that he had caused to be pro∣claimed all and singular in that Writ contained, and sayes not what; and the Demandant released his Default upon the grand Cape.

CLefold versus Carr. The Tenant in Dower before the value in∣quired * 1.372 of, and Damages found, brought a Writ of Error, and by the opinion of the whole Court a Writ of Error would not lie, for the Judgement is not perfect untill the value be inquired upon. The Demand in Dower was of the third part of two Messuages in three parts to be divided, and the Judgement was to recover Seisin of the third part of the Tenements aforesaid, with the Appurtenances, to hold to him in severally by Meets and Bounds, and adjudged naught; because they are Tenants in common, and the Judgement ought to be, to hold to him together, and in common; but if it had been in three parts divided, it had been good.

Actions in Ejectment.

ALlen versus Nash, Hill. 5. Jacobi, rotulo 719. The Plaintiff * 1.373 brought an Ejectione firme, and a special Verdict upon a Sur∣render of Copy-hold Land, which was to the use of the se∣cond Son for Life, after the Death of the Tenant and his Heirs, and it was adjudged not to be good in a Surrender; for though it be good in a Will, yet Implication is not good in a Surrender; and in Copy-hold Cases a Surrender to the use, &c. this no use but an Explanation how the Land shall go; if the Lord grant the Land in other manner then I appoint, it is void, if there be found Joynt-tenants, and one Surren∣der to the use of his Will, it was a Breach of the Joinder, and the Will good.

EYer versus Bannaster, Trîn. 16. Jacobi, rotulo 719. The Plaintiff * 1.374 brought an Ejectione firme, and declared upon a Lease made by Ed. Kynaston; to which the Defendant pleads not guilty, and the Plaintiff alleadges a Challenge, that the Wife of the Sheriff is Cosin to the Plaintiff, and desires a Venire facias, to the Coroners, and the Defendant denied it, and so a Venire was made to the Sheriff; and at the Assises the Defendant challenges the Array, because the Pannell was arrayed by the Sheriff, who married the Daughter of the Wife of the Lessor; and note, the first Challenge was made after the Issue joyned, and at the Assises the Defendant challenged as above, and a

demurrer to it, and Hutton held, that a Challenge could not be after a challenge, except it were for some cause that did arise after the chal∣lenge made, and that the party ought to rely upon one cause of chal∣lenge, though he had many causes, & observe the Defendant could not challenge the Array untill the Assises, but Husband held that a Chal∣lenge might be upon a Challenge, but this challenge was adjudged naught by all the Judges.

HIll versus Scale, Trin. 16 Jacobi rotulo 5. 18. the Plaintiff brought an Ejectione firmae, and declares upon a Demise made to the Plaintiff by J. C. bearing date, the first of January, anno 15. and sealed and delivered the twelfth of January following, to hold from Christmasse, then last past, for two years, the Jury found a spe∣ciall Verdict, and found the Lease, and a Letter of Atturney to exe∣cute the Lease, in this manner, that the Lessor was seised of the Land in Fee, and being so seised, he made, signed, and sealed an Indenture of a Demise of the said Tenements, and found it in haec verba, this Indenture, &c. and they further found that the Lessor, the said fifth * 1.375 day of January, did not deliver the said Indenture of Demise to the Plaintiff as his Deed, but that the Lessor the said fifth day of Ja∣nuary, by his writing, bearing Date the same Day, gave full power and authority to one C. to enter into all the premises and to take possession thereof in the name of the Lessor, and after possession so taken, to deliver the said Indenture of Demise to the Plaintiff, upon any part of the premises in the name of the Lessor, and find the Letter of Atturney in haec verba, To all &c. whereas, I the said J. C. by my Indenture of Lease, bearing date with these Presents, have demised, granted, and to Farm let, &c. for and during the Term of two years, &c. and they further find, that the said C. such a day, as Atturney to the Lessor, by vertue of that writing did enter into the Tenements aforesaid, and took possession thereof to the use of the Lessor, and immediately after possession so taken, the said C. did deliver the said Indenture of Demise upon the Tenements, as the Lessors Deed to the Plaintiff, to have, &c. and the doubt was because the Lessor in the Letter of Attorney, and said that whereas he had demised, and if it were a Demise, then the Letter of Attorney was idle, but notwith∣standing the Court gave Judgement for the Plaintiff.

WEeks versus Mesey, An Ejectione firmae brought against two, and one of them was an estranger, and was in the house, and the principall would not appear, and the other appeared, and pleaded non informat. and the Court was acquainted with the proceedings, and the Plaintiff prayed an habere facias possessionem, and the Court told the Plaintiff, that by that Writ and recovery, he could not remove

him that had Right, when a Lease is made to bring an Ejectment of Land in divers mens hands, then they must enter into one of the par∣cells and leave one in that place, and then must he go unto another * 1.376 and leave one there, and so of the rest, and then after he hath made the last Entry there, he sealeth, and delivereth the Lease, and then those men that were left there, must come out of the Land, and this is a good executing of the Lease, and Pasch, the ninth of James, the Court held that an Ejectment would not ly of Common pasture, or of Sheep-gate.

BEamont versus Cook, Trin. 13 Jacobi. An exception taken in E∣jectment, * 1.377 because the Originall was teste the very same day that the Ejectment was made and adjudged good by the whole Court, and one Goodhall brought an originall in Ejectment against Hill, and three others, and the Plaintiff counts against three of the Defendants, and no simulcum against the fourth, and this matter was moved in arrest of Judgement. And the Judgement was stayed by the whole Court.

COronder, versus Clerk, Hill. 10 Jacobi rotulo, 3315. Action upon * 1.378 an Ejectment brought, the Jury found it specially upon a Devise, the words of the Will were to my right Heires Males and poste∣rity of my name, part and part like, the question was, who should have the Land, and the Court held, the Land must go to the Heire, at the Common Law, and not according to the words of the Will, be∣cause they cannot consist with the grounds of Law, a Will must be construed in all parts, the brother cannot have it by the Devise, be∣cause he is not Heir, and the Daughters cannot, for they are not Heirs and posterity, and therefore, neither of them could have it, because they are not Heirs and posterity, because they that take it must be Heir and posterity, for the intent of a Will must be certain and a∣greeable to Law, and there must not an intent out of the words of the will, be sought out, and the whole Court held, that the Plain∣tiff was barred.

YOung, versus Radford, Pasch. 10 Jacobi Rotulo 1515. Action upon an Ejectment brought, and the Jury found a speci∣all * 1.379 Verdict, and the Case was, that Elizabeth Rudford, was pos∣sessed of a house full thirty years, and she took a Husband, the Hus∣band and Wife morgage the Term, the Wife dies, and the Hus∣band redeems the Land, and marries another wife, and then dies, and makes his Wife Executrix, and she maries the Lessor. The Defen∣dant takes Administration of the Goods of the first Woman, and it was held void, and Judgement for the Plaintiff.

PEttison, versus Reel, Pasch. 12▪ Jacobi, Rotulo, 2350. An eject∣ment brought, and Triall, and Verdict for the Plaintiff, and ex∣ception taken in arrest of Judgement to the Venire Facias, because this word Juratum was omitted, for the Writ was posuerunt se in il∣lam, and omitted the word Juratum, and this was amended by the Court. When a Title is to be tryed upon an Ejectment, and a Lease to be executed by Letter of Attorney, the course is this, that the Lessor do seal the Lease onely, and the Letter of Attorney, and de∣liver * 1.380 the Letter of Attorney, but not the Lease, for the Attorney must deliver that upon the Land: and upon an Ejectruent brought of Lands in two villages, of a house and forty Acres of Land in, A. and B. and a speciall Entry in the Land, adjoyning to the house to wit, the putting in of a Horse, which was drove out of the Land by the Defendant, and this was adjudged a good Entry for the Land in both the Villages, by the opinion of the whole Court.

ARden versus Mich. 12 Jacobi. The Plaintiff delivers, that where∣as such a day and year at Curdworth in the said County did de∣mise * 1.381 to the Plaintiff two Acres of Land, with the Appurtenances in the Parish of C. and the Venire facias was of the Parish of C. and after a verdict, exception was taken because it was not of Curdworth, but it was adjudged good by the Court, and to prove the Lease made Lanheston an Attorney swear, that the Lessor sealed the Lease, and subscribed it, but did not deliver it, and by word gave authority to one W. to enter into the Land, and to deliver the Lease upon the Land to the Plaintiff as his Deed, and by that authority he entred, and delivered the Lease as his Deed to the Plaintiff, and it was ad∣judged good.

MArsh versus Sparry, Hill. 14 Jacobi Rotulo, 1859. An Eject∣ment brought ex dimissione G. W. and the Originall was * 1.382 made ex divisione, and after a Triall, Serjeant Hitchaw moved the Court, that the Originall might be amended, and make ex dimissione, and the Court granted it, and the Cursitor was ordered to amend it, and also in the end of the Originall, it was written Barnabiam, and it should have been Barnabas, and that also was ordered to be amend∣ed by the Court.

CRadock versus Jones, Trin. 14 Jacobi. Rotulo 2284. An Ejectment brought upon a Demise, made by Cotton Knight, the Defendant pleads not guilty, and a Challenge to the Sheriff, and prayes a Venire facias to the Coroners, because the Sheriff is cozen to the Plaintiff, * 1.383 and shews how, and because the Defendant did not deny it, a Venire facias was awarded to the Coroners, and after a verdict, it was al∣ledged

in arrest of Judgement, because it was not a principall Chal∣lenge, and a Venire facias de novo, awarded to the Sheriff.

PArkin versus Parkin, 13 Hill Jacobi Rotulo 979. And Ejectment * 1.384 brought and verdict, and after a Triall, Exception taken to plead∣ing, of a Deed inrolled, the Action was brought in the County of York, and pleaded thus, ut infra, sex menses tunc proximos sequent. coram milite uno Justic. &c. in West-Riding, Com. Eborum, ad pa∣cem, &c. conservand. Assign. & W. C. Clerico pacis ibidem debito, mo∣do de Recor. irrotulat. and Exception was, because the inrollment was not made according to the Form of the Statute, because it did not appear, that the Justice before whom the Deed was inrolled, was a Justice of the Peace, of the County of York, but of the West-Ri∣ding, and it was not alledged, that the Land did ly in the West-Ri∣ding, and note that the Defendants Plea in Barr, was insufficient, be∣cause the Defendant did not confesse, nor avoid the Count, and the Plaintif by his Replication doth not shew any Title to the Land, be∣cause it did not passe by the inrollment, and so he hath lost his Suit, and although the Barr be insufficient, yet notwitstanding, the Plain∣tif shall not recover.

GReenely versus Passy, Hill 5 Iacobi Rotulo, 808. An Ejectment * 1.385 brought, the Defendant pleads not guilty, and the Jury found it Specially, that one Woodhouse was seised of Land in Fee, and did in∣feof the Husband and Wife, to have and to hold to the said Husband and Wife, and the Heirs of their bodies between them to be begot∣ten, by vertue of which Feofment, the Husband and Wife were seised of the whole Land in Fee Tail, to wit, &c. the Husband infeofs the youngest Sonne of the land in Fee, and afterwards the Husband dies and the woman survives, and afterwards she dies before any Entry by her made into the Land, and further find the lessor to be the eldest son, of their bodies, and that the younger Son infeoffed the De∣fendant; and afterwards the eldest Sonne entred into the Land, and made the lease in the Declaration, and whether the Entry of the el∣dest Son was lawfull, or no, was the question upon the Statute of 32 H. 8. that Fines or Feoffements made by the Husband, &c. du∣ring coverture be or make any discontinuance, &c. or be hurtfull to the said wife, or her Heirs, and Sir Edward Cook held, that the Heir is not barred of his Entry by the Statute.

PAcy versus Knollis, Trin. 6. Iacobi Rotulo 291. An Ejectment brought, the Defendant pleaded not guilty, and the Jury found * 1.386 it Specially, and the question is upon the words of the Will, to wit, And I give to Katharine my Wife, all the Profits of my

Houses and Lands lying and being in the Parish of Billing, and L. at * 1.387 a certain street there called Broke-street, and the Jury found that there was not any Village or Hamlet in the said County called Bil∣ling, and that the Land supposed to be devised lieth in Byrling-street; no mans verbal Averment shall be taken, or admitted, to be contrary to the Will, which is expresly set out in the Will. If I have two Tho∣mas to my Sonnes, and I give it to Thomas, it shall be intended my youngest Son, because my eldest Son should have it by Discent, the Will was held by all the Court to be good.

HEllam versus Ley, Trin. 7. Jacobi, rotulo 2718. A special Verdict * 1.388 in an Ejectione firme, the Question was upon the words of the Will, which were, that her Husband had given all to her, and nothing from her, and whether these words imply a consent, and so an Agree∣ment to the Devise of the Husband or no. And Foster, Warburton, and Walmsley, that it was an Assent; but Sir Edward Cook was of a contrary opinion: and note she was made sole Executrix, and she proved the Will, and Justice Foster held it to be an Assent in Law. The property of Goods cannot be in obayance, they must be in the Executor, Administrator, or Ordinary; and Warburton held, that the words made an Assent, and said, that when the Bond is delivered to one to the use of another, untill he dis-assent, it is his Deed, but when he dis-assenteth, then it is not his Deed, Ab initio: if a Lease be given by Will to divers, and made one of them his Executor, in this Case the Executor must make his special Claime, else he must have it as Executor: and Sir Edward Cook held, that the general Entry, and proof of the Will is no Assent, she must first have it as an Executor, before she can have it as a Legatee, a Legacy is waiveable; but if the Law work it in me whether I will or no, then I cannot waive it, and therefore he held she should enter specially.

ROlles versus Mason, Hill. 6. Jacobi, rotulo 2613. An Ejectment * 1.389 brought, and the Question grew upon two Customes, one was that the Copy-holder for Life may name to the Lord of the Mannour who should be his Successor in the Copy-hold: and the other that the Copy-holder for Life may cut down all the Trees of wrong upon the customary Land: and the third Question was, whether the se∣cond Lessee of the Mannour may take advantage of the pretended Forfeiture for cutting down the Trees, by the Law a Copy-holder shall have, house-boot, free-boot, and hedge-boot, and common of Turbary to burn in his house, but he cannot sell them. A Copy-holder by Custome may name his Successor, and if the Lord refuse to admit him, the Homage may set▪ a reasonable Fine, and so he shall be admit∣ted. The Lessee of the Mannour may take advantage of the Forfei∣ture,

but in this Case it is no Forfeiture, and the Copy-holder may cut downe Trees, for he hath a greater Estate then a sole Tenant for Life, because he shall name his Successor: APrescription goeth to one man, and a Custome to many; and Judgement for the De∣fendant.

MAson versus Strecher & alios, Pasch. 7. Jacobi, rotulo 606. An Ejectment brought for the Mannour of P. it was held by the Court, that the consent of a Servant in the absence of him who is possessed of the Terme shall not out his Master of the Possession, be∣cause the Servant hath no interest in the Land.

CRamporne versus Freshwater Pach 8 Jacobi rotulo 2742. An acti∣on * 1.390 of Debt brought upon an Ejectment, the Plaintiff was non-suit upon his own Evidence because he declared upon a Devise made for three years, and it was confessed by the Plaintiff that the Lands were Copy-hold Land, and that the Plaintiff had not license to demise them for three years neither could he prove; that by any custome he could demise them for three years without a license, and so the Lessor was taken for a Disseisor by the opinion of the Court.

CAffe versus Randall Trin. 9. Jac. rotulo 3299. An Ejectment * 1.391 brought against Randall and his Wife, the Ejectment made by the Wife and not guilty, pleaded and tried; and it was moved in Ar∣rest of Judgment, because the Issue was pleaded in this manner, Et dicunt quod ipsi in nullo sunt culpabiles, &c. And the Ejectment was made by the woman alone, and ought to have been that she was not guilty, and upon examination of the Plea Rol and Record of Nisi prius it appeared to the Court that the Plea Roll was right but the Record of Nisi prius mistaken, but Serjeant Barker said that at the time when the Record of Nisi prius was tried, the Plea roll agreed with the Record, and was afterwards amended. and Waller the prothono∣tary confessed that he amended the plea rol, as upon his private exa∣mination of the roll but without notice that there was a Record sent down to try that Issue, and therefore the Court ordered that the Record of Nisi prius should be amended according to the Plea roll which was done accordingly.

PAts versus Chitty Trin. 9. Iac. rotulo 2151. vel 2151. An Action of * 1.392 ejectment brought, the Defendant pleads a concord with satisfa∣ction in Bar, the Plaintiff demurs, and it was held by Winch and Foster a good Plea because the Action is not only in the realty for he reco∣vers damages and possession which are meer Chattells. Secondly, Be∣cause the Defendant pleads the satisfaction as in discharge of that A∣ction

and all others and ten shillings for rests, Warburton of the same opinion, and he vouched the like case satisfaction is good. Plea in a Quare impedit wherein a man recovers the presentation: And Cook said, that in all Actions wherein money or Damages are recoverable as well wherein the Defendant might wage his Law as wherein he might not, it is a good Plea Pasc. 3. Jacobi rotulo 1033. Eden and Blake, but in matters where one Free-hold or Inheritance is recove∣rable, concord is no Barr and in dower recompence in other Lands or Rent is no Barr. But by petition in Chancery, but Rent Issuing out of the same Land demanded is a good Barr; and in all Actions Quare vi & armis wherein process of Outlary lies by the common Law, con∣cord or an Award is a good Barr, 38 H. 6. title Barr satisfaction in trespass by an Estranger is a good Barr although it be without notice of the trespassor by the opinion of the whole Court.

CRaddock versus Iones Trin. Iacobi rotulo 2284. An Ejectment brought, and declares upon a Lease made by W. Cotton Knight, * 1.393 the Defendant pleads not guilty, and makes a challenge and praies a venire facias to the Coroners because the Sheriff is Cozen to the Lessors Wife which is not a principle challenge but by favour, and af∣ter a Triall and Verdict it was amended in arrest of the Judgment because it was mistried and Barker vouched a case in the Exchequer Chamber, in 43 El. upon a Writ of Error, between Higgins, and Spicer, upon a Venire facias, awarded in the like manner, and it was adjudged to be mistryed, and it was then agreed that misconvey∣ance of process is, where one Writ is awarded in place of another to an Officer which of right ought to execute that process, and he re∣turns it, this is helped after a Verdict by the Statute. But if a writ be awarded to an Officer who ought not to execute that process, and he returns it, this is a mistriall and not helped by the Statute and War∣burton said that Dyer folio 367. To the contrary is not Law, two Te∣nements in Common joyne in a Lease for years to bring an Ejectment and declare that whereas they did demise the Tenements and it was held nought for it is a severall Lease of moities and if they had decla∣red, that one of them had demised one moity and the other another moity it had been good.

WIlson versus Rich, Pasch. 44. Eliz. The Husband and Wife joyn in a Lease by Indenture to A. rendring Rent, and this is * 1.394 for years, and make a Letter of Attorney to seal and deliver the Lease upon the Land, which is done accordingly; A. brings an Ejectment∣and declares upon a Demise made by the Husband and Wife, and up∣on Evidence to the Jury ruled by Popham, Fenner, and Yelverton, that the Lease did not maintain the Declaration, for a Woman covert

could not make a Letter of Attorney, to deliver a Lease upon the Land, although Rent was reserved by the Lease, and so the Warrant of Attorney is meerly void, and the Lease is onely the Lease of the Husband, which is not made good by the Declaration, by the opinion of the Court.

STretton versus Cush, Pasch. 1. Jacobi. J. L. leased a House for four∣score years, in which Lease there is one Condition, that the Lessee his Executors and Assignes should keep and maintain the House in re∣paration, and if upon lawfull warning given by the Lessor, his Heires and Assignes, &c. to enter; the Lessee for fourscore years leases the House to A. for thirty years; and A. leases it to Wilmore for fifteen years; the Assignee of the Reversion came to the House, and seeing it in decay gave warning to Wilmore then possessed of that House to repair it, which was not done within six Moneths, by reason whereof the Assignee entred for the Condition broken, and upon a Not guilty pleaded, the matter before recited was found by a special Verdict, and adjudged against Sir William Wade the Assignee of the Rever∣sion, for the warning given to Wilmore to repair, who was but an un∣der tenant, was not good, for he was not Assignee of the terme, nor had but a pety interest under the grand Lease, upon whom no Attor∣ney could be made for the Rent, nor any Action of Waste brought against him, for there wanted the immediate privity: and in this Case there is a difference to be taken between a rent and a Condition for re∣parations, for the Condition is meerly collateral to the Land, and meer∣ly personal, and therfore warning is not of necessity to be given at the House, but notice of Reparations ought to be given to the person of the Lessee, who had the grand interest. And a Difference is to be ta∣ken between a time certain in which a thing is to be done, and a time incertain; for in the Case of Rent reserved at a Day certain, Demand thereof must be made upon the Land onely, because the Land is the Debtor; for Popham said, that if the Lessor should come and de∣mand his Rent, and there should meet with J. S. a stranger, and should say to J. S. Pay me my Rent, this is no good Demand of the Rent, having mistaken the person who is chargeable with it: but in this Case one general Demand of Rent, without reference to any person who is not chargeable, is good. And he was of opinion, that if a man lease Land, rendring Rent for a year, whensoever the Lessor should demand it, in this Case the Lessor come and demand it before the end of the year, his Demand upon the Land is not good, except * 1.395 the Lessee be there also; for the time being incertain, when the Les∣sor will demand it, he ought to give notice to the Lessee of it. And if the Lessor come to the Lessee in person, and demands the Rent, yet it is not sufficient; for although notice is to be given the Lessee in person,

yet the Land is the Debtor, and therefore the Law ties the Les∣see to the Land, as to the place in which he shall be paid; but if the Lessor stay nntill the eud of the year, then the Lessee at his peril ought to attend upon the Land to pay it, for the end of the year is time of payment prescribed by the Law which was granted, and Judgement was given for the Plaintiff.

CLerk versus Sydenham, Pasch. 4. Jacobi. An Ejectment brought by * 1.396 the Plaintiff of a Lease made of Land by P. and B. and Not guilty pleaded: and the Evidence of the Defendants part was by rea∣son of a Lease of the Land in Question, made by the Abbot of Cleeve, before the Dissolution to W. D. and Jo. his Wife, and F. their Daughter for their Lives by Indenture; and by the same Indenture the Abbot covenants, grants, and confirmes to the three Lessees, that the land should remain to the Assignee of the Survivor of them for ninety years; Fr. survived, and took to Husband one Hill, who the 20 Eliz. grant their Estate for life to J. S. and all their interest in the Remainder, and all their power for all the term, and this by mean As∣signements came to the Defendant: and whether any interest passed in Remaindor by the Lease of the Abbot was the Question; and by all the five Judges it was held to be a good interest in possibility, and to be reduced into a certainty in the person of the Survivor; as where Land is given to three and the right Heirs of the Survivor, this is a good limitation of the Inheritance presently, but it is in expectancy untill the Survivor be known, for then the Fee is executed in him. And Popham vouched a Case in his experience, 17 Eliz. in which Ser∣jeant Baker was of Counsel, and it was a Lease was made to Husband and Wife for life, and for forty years to the Survivor of them, the Husband and Wife joyn in Grant of this Interest: and although it be certain, one of them shall survive, yet the Grant is void, because at the time of the Grant there was not any interest, but onely a pos∣sibility in either of them: and although in the Case in Question the Remainder is not limited to any of the three Lessees, but to the As∣signee of the survivor; yet the Court was of opinion, that this was not a bare nomination in the survivor to appoint what person he plea∣sed, but a terme and an interest; and Popham took this difference, if a Lease be made to J. S. for life, and after his death to the Executors and Assignes of J. S. this is an interest in J. S. to dispose of it, but if it had been limited to J. S. for life, and afterwards to the Executors and Assignes of J. D. here this is a bare power in J. D. and his Exe∣cutors, because they are not parties or privies to the first interest which was agreed, and it was also agreed, that whether it was an in∣terest or a word of nomination, it was all saved to the party by the Statute of 31 H. 8. of Monasteries, which gives the Houses dissolved

to the King, but in the same degree and qualitie as the Abbot had them. And the Abbot was charged with the power given by him∣self, and so was the King. Which mark.

VVAnto versus Willingsby, Pasch. 5. Jacobi. The Bishop of Ex∣ceter in the time of H. 8. by his Deed gives Land, &c. to Nicho: Turner, and by Bill his Cousin in consideration of service done by Turner, and for other considerations him moving to them, and the Heirs of their bodies, and dyes. They have Issue Jo. and William, N. T. dies, and Sybill marries Clap. and they alien the Land to Iohn in Fee; Sybill and Iohn leavie a Fine to Walther in Fee of the Land. And afterwards Sybill infeoffes William her younger Son, who in∣feoffes Willinghby, Io: enters, and leaseth to Walther and Willingby for the tryall of his title, seals a Lease to ward, who declares of so many Acres in Sutton Cofeild. And the Jury upon a not guilty plead∣ed foundby the Verdict that the Bishop gave the Tenements afore∣said by his Deed, the tenor of which Deed follows, &c. And by the Deed it appeared that the Lands did lye in Little Sutton within the Lordship of Sutton Cofeild. And notwithstanding the Plaintiffe shall recover. For first it was held not to be any Joynture within the Sta∣tute of 11 H. 7. for it is not any such gift as is intended by the Sta∣tute, for the Bishop was not any Ancestor of the Husband, and the Husband took nothing by that, but it was a voluntary recompence given by the Bishop in reward of the service passed. And the Statute intended a valuable confideration. And also the Bishop might well intend it for the Advancement of the woman, who appeared to be Cozen to the Bishop. And Tanfeild held if the woman were a Done•• within the Statute of 11 H. 7 she could be but for a moyetie, for the gift was before the marriage, and then they took by moyeties. And the Baron dying, first the woman came not to any part by the hus∣band, but by the course of Law as survivour. But quaere of this con∣ceit, for the other Judges did not allow it. And secondly, they held that the Fine of Io. the elder Son of Sybill levied to Walther destroyed * 1.397 the entry of Io. and of Walther. For although in truth the Fine passed nothing but by conclusion, yet Io. the Son, and Walther his Conusee shall be estopped to claim any thing by way of forfeiture against that Fine on the womans part, then any title accruing after the Fine. For they shall not have any new right, but Io: the Son upon whom the Land was intayled is barred by the Fine. Thirdly, although upon view of the Deed made by the Bishop the Land which by the Declaration is layed to be in Sutton Cofeild, by the Deed appears to be in Little Sutton, yet this is helped by the Verdict, by which it is found expresly that the Bishop gave the Lands within written, and therefore being so precisely found the Deed is not materiall. Which mark.

KNap versus Peir Iewelch Pasc. 5. Jacobi. An Ejectment brought for * 1.398 Lands in Wiccombe, which were the Deans and Chapters of Chichester, And in this case it was agreed by the whole Court, that if it be a Corporation by prescription, it is sufficient to name them by that name they are called. And the Court held, that if a man de∣mands Rent upon the Land to avoid a Lease upon a condition, the Demand ought to be made in the most open place upon the Land; The Dean and Chapter of Chichester made a Lease to one Raunce, the Lessee of the Defendant of Lands in Wiccombe, rendring Rent payable at the Cathedrall Church of Chichester, upon such a con∣dition, it was agreed by the whole Court, that the Demand ought to be made in the Cathedrall Church of Chichester, although it was of the Land Leased. And the Demand ought to be made at the set∣ting of the Sun the last instant of that day, and when he made his Demand, he ought to stand still, and not walk up and down, for the Law did not allow of walking Demands. As Pipham said, and he ought to make a formall demand. And because those whom the Dean and Chapter did send to make the demand of Rent said, bear witnesse, we are come hither to demand and receive such Rent, it was held by the Court, that such a demand was not good. And they held the demand ought to be made at that part of the Church where the greatest and most common going in is. And in this case it was said by Popham, that if a man make a Lease to one for yeers to commence at a day to come, and then he lease to another for yeers rendring Rent upon a condition to commence presently. And he enter. And the first Lease commence, and he enter the Rent, and Condition reserved upon the second Lease is suspended. A man leases for years rendring Rent, & after he leaseth to another to com∣mence at a day to come, and the first Lessee attorns, the second shall not have the Rent reserved upon the first Lease by Popham; but he doubted of it. And Popham and Tanfeild held, none contradicting, that the Letter of Attorney made by the Dean and Chapter to de∣mand their Rent was not good, because the Letter of Attorney was to make a general demand on any part of the Land, which the Dean and Chapter had leased. And that ought to have been speciall one∣ly for that Land. And secondly, it was to demand Rent of any per∣son to whom they had made a Lease. And the Letter of Attorney ought to be particular, and not generall of any person.

TOmpson versus Collier, Mich. 5. Jacobi. The Plaintiffe declares up∣on a Lease of Ejectment made by Robinson and Stone of one Mes∣suage, and fourty Acres of Land, in the Parish of Stone in the Coun∣tie * 1.399 of Stafford. The Defendant imparled tryall another Terme, and then pleads that within the Parish of Stone there were three Villages,

A. B. and C. And because the Plaintiffe hath not shewed in which of the Villages the Land he demanded Judgement of the Bill, &c. And the Plaintiffe demurred upon this Plea; And adjudged for the Plaintiffe. For first, after an Imparlance the Defendant cannot plead in abatement of the Bill, for he hath admitted of it to be good by his entring into defence, and by his Imparlance. And secondly, the matter of his Plea is not good, because the Defendant hath not * 1.400 shewed in which of the Villages the House and fourty Acres of Land did lye; And that he ought to have done. For where a man pleads in abatement, he alwayes ought to give to the Plaintiffe a letter writ with mark. And the whole Court held that this Plea was not in barr, but that he should answer over. And Williams Justice took this difference, that when a man demurrs upon a Plea in abatement; And when he goes to issue upon it, for if they discend to issue upon such a Plea, and it be found against the Defendant, it is peremptory, and he shall loose the Land: but upon demurrer it is not perempto∣ry, but onely to answer over. Which mark.

VVOrkley versus Granger, Mic. 5. Jacobi. An Ejectment brought for two Houses, and certain Lands, &c. And upon a spe∣ciall Verdict, The case was one He••: Wels and his wife nere seised of a parcel of Land to them, and the Heirs of their bodies begotten, as for the joynture of the wife, the remainder to the Heirs of the Husband in Fee, the Husband bargains, and sels the Land to Stamp and his Heirs in Fee. And afterwards the Husband and one Winter leavie a Fine of that Land to another who grants that Land back again to Winter for one month, the remainder to the husband and wife, and the heire of their bodies to be begotten, the remainder to the husband and his heirs. The Husband dyes, the Wife survives, and makes a Lease to the Defendant for ninety nine yeers, if she should so long live; the woman dyes, and the Plaintiffe claims un∣der the bargainee: and in this Case two points were debated. First, what Estate passed to the bargainee, and Digges of Lincolnes Inne, who argued for the Plaintiffe, that the bargainee had a Fee simple determinable which issued out of both the Estates as it was held by Periam in Alton Woods Case. And he said that the Proclamations up∣on the Fine are but a repetition of the Fine, as it is held in Bendlones Rep: put in the Case of Fines in Cooks 3. Rep. And see Pinslees Case, for then for the same cause the Issue in tayl is bound, although the Fine be levied by the Husband alone by the Statute of the 4. H. 7. and 32 H. 8. because he cannot claim but as Heir to the Father, as well as to the Mother, and therefore his Conveyance is bound: and see 16. E▪ Dyd. 332. Husband and Wife Tenants in speciall tayl. The husband is attainted of Treason, and executed having Issue, the wo∣man

dyes, the Issue shall never have the Land. And if husband and wife Tenants in speciall tayl; And the Husband levies a Fine to his own use, and devises the Land to his wife for life which remainded over rendring Rent; the husband dyes, the woman enters, pays the Rent, and dyes, the Issue is barred for two causes: first by the Fine which had barred his Conveyance of the intayl: secondly, by the Remitter waived by the Mother. 18 Eli: Dyer 531. See 5 H. 7. Assise Thorp and Tirrels Case. Secondly, the Lease made by the woman was determined by her death, and it was said that the woman had not any qualitie of an Estate tayl, but onely she might take the profits during her life within the Statute of 11 H. 7. And when she dyes the Estate is denised. See Austens Case. Doctor Wyat Tenant in tail leased for yeers, And dyed without Issue, the Lease was determined. See first of Eliz: title Executors. And 31 H. 8. Dyer. Where a Bishop made a Lease for yeers, and afterwards makes another Lease to one of the Lessees, &c. And Fleming held that if the woman survived as under Tenant in speciall tayl, and made a Lease for 21. yeers, it is out of the Statute of 32 H. 8. and so it was adjudged in Wattes and Kings Case.

LAne versus Alexander Hill, 5. Jaco. The Plaintiffe declares in Ejectment upon a Lease made to him by Mary Planten for three * 1.401 yeers, the Defendant saies, &c. that the Land is Copihold Land of the Mannor of H. in Norff. whereof the Queen Eliz: was seised in Fee, and long time before the Lessor had any thing there in Court such a day, that J. S. her Steward at the Court, &c. granted the Land to the Defendant by Copie in Fee, according to the custome, and so justifies his entry upon the Plaintiffe. The Plaintiffe replies and saies, that long time before the Copy granted to the Defendant, to wit, at a Court of the Mannor held such a day, the 43. Eliz: the Queen by Copy, &c. granted the Land to the Lessor for life according to, the custome, by force whereof he entred, and made a Lease to the Plaintiffe. The Defendant by way of rejoynder maintained his barr, and traverses: with that the Queen at the Court of the Mannor by J. S. her Steward, such a day, &c. granted the Land to the Lessor and upon this the Plaintiffe demurred in Law generally. And Yel∣verton moved that the traverse was good in this Case upon the day, and Steward: and the difference is where the act done may indif∣ferently be supposed to be done on the one day or the other, there the day is not traversable as in the Case of a Deed made such a day; there the day of the Deed is not traversable, for it passes by the li∣very, and not by the Deed. And the livery is the substance, and the day but a bundance. 10 E. 4. And the Law is the same if the day in trespasse wherein the day is not traversable. For although it be done

upon another day it is not materiall. But when a man makes his title by an especiall kinde of Conveyance, as in this case, the Plain∣tiffe makes his title by one Copy, there all that is concerned in the Copy is materiall, and the party cannot depart from it, for he claims not the Land by any other Copy but by that which is plead∣ed, as is in the 18 H. 6. 14. where an Action is brought for taking his Servant, and counts that he by Deed retained with him his Servant the Monday in one week, in such a case it is a good plea for the De∣fendant to say, that the Servant was retained by him such a day, after without that that the Plaintiffe did retain him the Monday. And the Law seems to be concerning Letters Patents, wherein the day and place are traversable, being the speciall conveyance of the party from which he cannot depart. And also it seems that al∣though the day in the principall case be traversed, yet the Statute of 18 Eliz: of Demurrers aids it, it being but a generall Demurrer, and the day being onely matter of form. But the whole Court were of opinion, that the day was not traversable in this case. For the Queen granting an ancienter Copy to the Plaintiffs Lessor then to the Defendant, and the traverse should have been without this, that the Queen did grant in manner and form, &c. to the Plaintiffs Les∣sor, and the Case is the same in the Letters Patents, for there the traverse should be without this, that the Queen granted in manner and form, &c. And the day and place shall not come into the traverse. But Justice Fennor was of a contrary opinion, for the Reason delivered by Yelverton before, and he also, and the Lord cheif Justice held it to be holpen by the Statute of 18 Eliz: for it is but matter of form. For if the Jury finde a prior grant of the Queen to the Plaintiffs Lessor, although it be at another Court it is sufficient; and so by consequence the day is not materiall in substance, which mark. But Williams Justice, and the rest held the traverse to be naught, for by that the Jury should be bound to finde the Copy such a day by such a Steward which ought not to be, and that it was matter of sub∣stance not helped by the Statute of 18 Eliz.

DArby versus Bois Hill. 5. Jacobi. An Ejectment brought for an * 1.402 House in London, and upon not guilty pleaded, The Jury found a speciall Verdict; And the case was Tenant in tail of divers Messu∣ages in London, 7 January, 44 Eliz: bargains and sels the said Houses to J. S. and delivers the Deed from off the Land the 8. of January the same yeer. Indentures of Covenants were made, to the intent to have a perfect recovery suffered of those houses; and the ninth of January after a Writ of right is sued in London for those Messuages returnable at a day to come. And the tenth of January the same yeer the Tenant in tail makes livery and seisin to J. S. of one of those

Houses in the name of all. And the other Messuages were in Lease for yeers, and the Lessees did not atturn. And the question was if the Messuages passed by the bargain and sale, or by the livery. And it was adjudged that they passed by the bargain and sale. And Yel∣verton took a difference between severall Conveyances both of them Executory, and where one of them is executed presently, as in Sir Rowland Heywoods Case, where divers Lands were given, granted, leased, bargained, and sold to divers for yeers; the Lessees were at election whether they would take by the bargain and sale upon the Statute of 27 H 8. or by the demise at the Common Law. But other∣wise it is if one be executed at first, for then the other comes too late, as it is in this Case; for by the very delivery of the bargains and sale, the Land by the custome of London passes without inrollment, for London is excepted, and this custome was found by the Verdict. And therefore it being executed, and the Conveyance being made perfect by the delivery of the Deed without any other circumstances, the livery of sesin comes too late, for it is made to him that had the Inheritance of the Messuage at that time. And the possession executed hinders the possession executory, for if a bargain and sale be made of Land, and before inrollment the bargain takes a deed of the said Land, this hinders the inrollment, because the taking of the livery did destroy the use which passed by the bargain and sale which was granted by the Court. And another reason was given, because it appeared that the intent of the parties was to have the Land passe by the bargain and sale; because it was to make a perfect Tenant to the Precipe, as appears by the subsequent acts, as the Indentures Covenant, and the bringing the Writ of Right &c. All which will be made frustrate, if the livery of seisin shall be effectuall: and when an Act is indifferent, it shall be taken most neer to the parties intents that may be if a man hath a Mannor, to which an advowson is appendant, and makes a Deed of the Mannor with the appurtenan∣ces; And delivers the Deed, but doth not make livery of seisin, yet now although the Deed in it self was sufficient to passe the Advowson, yet because the party did not intend to passe it in Posse, but as ap∣purtenant if the Mannor will not passe, no more shall the Advowson passe alone, as it was agreed, 14 Eliz: in Andrews Case. Which mark. And the whole Court gave Judgment accordingly, that the Defen∣dant who claimed under the bargain & sale, should enjoy the Land.

CHalloner versus Thomas, Mich. 6. Jacobi. A Writ of Error was brought upon a Judgement given in Ejectment in the Cour•• of * 1.403 Carmarthen, and Yelverton assigned the Error, because the Ejectment was brought de aquae cursu, called Lothar in L. and declares upon a Lease made by D. de quidam rivulo & aquae cursu: And by the opinion

of the whole Court the Judgement was reversed, for rivulut se•• aque cursus lye not in demand, nor doth a precipe lye of it: nor can livery and seisin be made of it, for it cannot be given in possession, but as it appears by 12 H. 7. 4. the Action ought to be of so many Acres of Land covered with water, but an Ejectment will well lye by, if a stang for a precipe lies of them, and a woman shall be indowed of the third part of them, as it is 11. E. 3. But if the Land under the water or River do not pertain to the Plaintiffe, but the River onely, then upon a disturbance his remedy is onely by Action upon the Case, upon any diversion of it, and not otherwise. Which observe.

VVIlson versus Woddell, Mich. 6. Jacobi. The Grand-father of * 1.404 the Plaintiffe in an Ejectment being a Copy holder in fee, made a surrender thereof to L: Woddell in fee, who surrendred it to the use of Margery I. for life, who is admitted, &c. But L: Woddell himself never was admitted. The Grandfather and Father dye, the Son who is Plaintiffe was admitted, and enters upon the Land: Mar∣gery being then in possession, and the Defendant then living with her as a servant in those Tenements, and this was the speciall ver∣dict, And Judgment was given for the Plaintiffe. And the Court was of an opinion, that the Defendant was found to be a sufficient Tre∣spassor, and Ejector, though he be but a Servant to the pretended owner of the Land, because the Verdict found that the Defendant did there dwell with Margery. And in such case he had the true title and had made his entry, might well bring his Action against Ma∣ster or Servant at his election. And perhaps the Master might with∣draw himself that he could not be arrested. And secondly, it was adjudged, that the surrender of J. S. of a Copy-hold is not of any effect, untill J. S. be admitted Tenant. And if I. S. before admittance * 1.405 surrender to a stranger who is admitted, that that admittance is nothing worth to the estranger. For J. S. had nothing himself, and so he would passe nothing, and the Admittance of his grantee shall not by implication be taken to be the admittance of himself; for the admittance ought to be of a Tenant certainly known to the Ste∣ward, and entred in a Roll by him; and it was held, that the right and possession remained still in him that made the surrender, and that is descended to his Heir, who was the Plaintiffe. And they took a difference between an Heir, to whom the Copy descended, for he may surrender before admittance, and it shall be good; because he is by course of the Law, foe the custome that makes him Heir to the estate casts the possession of his Ancestors upon him: but a stranger to whom a Copy hold is surrendred, hath nothing before admit∣tance because he is a purchasor. And a Copy made to him, upon which he is admitted, is his Evidence by the custome, and before

that he is not a customary Tenant, and so he could not transfer any thing to another, and adjudged so according to 24 Eliz: Alderman Dixies Case.

BEdell versus Lull, Pasch. 7. Jacobi. The Plaintiffe declares in Eject∣ment * 1.406 upon a Lease made by Eliz: James of certain Lands. The Defendant pleads that before Eliz: had any thing, one Martin James was seised in fee of it, and had issue Henry James, and dyed seised, by reason whereof it discended to H. J. as Son, and Heir; and that Eliz: entred, and was seised by abatement, and made the Lease to the Plaintiffe: and that afterwards the Defendant as servant to H: James, and by his command, &c. The Plaintiffe by way of replica∣tion confesses the seisen of M. James, And that he being so seised by his last Will in writing, devised the said Land to Eliz: in fee, and af∣terwards dyed seised by reason whereof she entred by force of the devise, and made the Lease to the Plaintiffe, and traverse without, that Eliz: was seised by abatement in manner and form, &c. And * 1.407 the Defendant demurrs upon this replication, and shewed for cause that the traverse was not good, and adjudged for the Defendant: for the Plaintiffe by his replication need not both confesse, & avoid, and traverse the abatement too, for the Plaintiffe made a title to his Lease by the Will of his Ancestor, and that proved that he entred le∣gally, and not by abatement, as the Defendant had supposed. And then to take a traverse over makes the replication vitious. For a tra∣verse shall not be taken, but where the thing traversed is issuable. And here the devise is onely the title issuable. And it was also held that the traverse was not good as to the manner of it, for he should not have traversed without that, that he was seised by abatement, but it ought to have been without that, that he did abate; and al∣so if the Plaintiffe had minded to have fully answered the Defen∣dant, he ought to have took his traverse in the very same words the Defendant had pleaded it against him, to wit, without that, that he did enter, and was seised by abatement, which observe. The Case concerned Sir H. James to whom the Defendant was Tenant.

SAunders versus Cottington, Mich. 7. Jac. An Ejectment brought of two Houses, but the Bill was onely for one, and it was filed. And * 1.408 the Defendant by his paper book pleaded to both Messuages; And the Roll in Court, and the Record of Nisi prius were two Houses. And there was a verdict for the Plaintiffe, and Judgement entred accordingly. And a Writ of Error was brought by the Defendant, and before the Record was removed, the Plaintiffe moved the Court that the Bill upon the file might be amended, and made two Messuages. And because the Defendant had pleaded to Messuages

in his Answer in paper, and that the Roll and Record were accord∣ing, it was resolved by the whole Court, that the Bill upon the File should be amended, and made two Messuages; for that Bill which made mention onely of one House could not be the ground of all the proceedings afterwards; but it was as if no Bill had been filed, and therefore it should be supplied, and so had been severall times before the Record was renewed. Which observe.

THe Plaintiffe declared in Ejectment upon a Lease of an House, * 1.409 10 Acres of Land, 20 Acres of Meadow, 20 Acres of Pasture, by the name of one Messuage, and ten Acres of Meadow be it more or lesse, and upon not guilty pleaded the Plaintiffe had a Verdict, but moved in Arrest of Judgement, and Judgement was stayed. For by the Plaintiffs own shewing in his Declaration, he could not have Execution of the number of Acres found by the Verdict; for in the Lease there is but ten Acres demised. And these words more or lesse could not in judgment of Law be extended to thirty or fourty Acres; for it is impossible by common intendment, and the rather because the Land demanded by the Declaration is of another nature then that which is mentioned in the per nomen, &c. For that is only of Meadow, and the Declaration is of arrable and Pasture.

MOore versus Hawkins, Mich. 8. Jacobi. In Ejectment after issue Joyned upon a not guilty pleaded, the cause came to be tried before Brook and Yelverton, Judges of Assize in the County of Ox∣ford, the Plaintiffe had declared of divers Messuages, and divers Acres of Land lying in three Villages in the said County. And at the tryall before the Jury was sworn, Walter the Defendants Coun∣sell put in a Plea, that after the last continuance, to wit, such a day in Trinity Terme before the day of Assize, to wit, the 20. of July, the Assizes being held at Oxford, the 21 of July the Plaintiffe had entred into such a Close by name containing eight Acres, parcell of the pre∣mises specified in the Declaration, &c. and this Plea was received by the Judges of Assize. And afterward in Mich. Terme Yelverton and Walter being of Counsell with the Defendant, desired that they might amend their Plea, to wit, to put in the very Village where the Land did lye, into which the entry of the Plaintiffe was, because it was but matter of form, and not of substance: and they were of opi∣nion, that the tryall of that new lssue ought to be of all the three Villages named in the Declaration. And Yelverton Justice having asked the opinions of all the Judges in Serjeants Inne Fleetstreet, rela∣ted their opinions in the Court, the Record of Nisi prius was return∣ed into the Exchequer, to wit, that it was in the discretion of the Justices of Assize to accept such a Plea as is before, and that it might

be well allowed, as the 10 H. 7. is, and it shall stay the Verdict. But otherwise it is of a protection, for although they allow a protection, yet the Judges may take the Verdict, de bene esse; yet he said that in the 7. E▪ 3. in a Precipe quod reddat, a Release was pleaded at the tryal, and the Jury found the Verdict, but that was the indiscretion of the Judges to allow it, when it should not have been allowed. And all the said Judges held as he related, that the Plaintiffe could not have a replication to that Plea at the tryall; for the Justices have no power either to accept a Replication upon that Plea, or to try it, but onely to return it as parcell of the Record of Nisi prius. And they held also that the Plea being put in the Countrey, could not be amended in adding the Town in certain in which the Close did lye; for it was matter of substance. And that the Court of Exchequer where the Record was, would not award the Venire Facias of all the three Villages named in the Record, if it did not appear judicially to them that the Close did extend in all the Villages; and it doth not appear for parcell, if the premises doth not necessarily extend to all the Villages, but may well be, and so presumed in one Village onely, and therefore it is matter of substance. And the Judges had not power after their Commission determined to amend the Plea.

DAvis versus Pardy, Mich. 8. Jacobi. The Plaintiffe declared of a * 1.410 Lease made by one Cristmas the sixth of May, Anno 7. of one Messuage, &c. In D. by reason whereof the Plaintiffe entered, and was possessed, untill the Defendant afterwards, to wit, 18. of the same month, Anno sexto supradicto, did eject him. And not guilty being pleaded, a verdict was found against the Plaintiffe. And Yelverton moved in Arrest of Judgement to save Costs, that the Declaration was insufficient. For that Action was grounded upon two things: first, upon the Lease: secondly, upon the Ejectment, and both those ought to concur one after the other. And in this case the Ejectment is supposed to be one year before the Lease made, for the Lease is made Anno 7. and the Ejectment supposed to be done Anno 7. 6. And therefore the Declaration naught. And Yelverton vouched the case between Powre and Hawkins, Anno septimo, Termino Pasch. Where the Plaintiffe declared upon the Lease of Edw. Ewer, 27. April, Anno sexto, and laid the Ejectment to be 26. April, Anno 6. And the Court held then, that the Declaration was naught, yet in the case in que∣stion, the Declaration was adjudged good. And the word sexto to be void, for the day of the Ejectment being the 18. of the same month of May, it cannot be intended but to be the same year, in which the Lease is supposed to be made, by the opinion of the whole Court.

AYlet versus Chippin, Mich. 8. Jacobi. The Plaintiffe declares upon a Lease made by John Aylet, for one year, of certain Land in C. in the County of E. by vertue whereof he entred, and was possessed, untill the Defendant did eject him. The Defendant pleads that the Copihold Land is parcell of the Mannor of D. &c. of which one Jo: Aylet the Lessors Father was seised in Fee, according to the Cu∣stome, and that he made a surrendor thereof to the use of his Will, and by his will devised the Land in question to John the lessor, and H. Aylet his sons, and to their Heirs Males of their Bodies, and wil∣led that they should not enter untill their severall ages of 21 years. And further willed that W. B. and H. B. his Executors should have the Lands to perform his Will, untill his said Sons Jo: and H. came to their severall Ages, of one and twenty years, &c. To which Plea the Plaintiffe replies, and confesses the Will, but shews further how that such a day and year before the Lease, Jo: his Lessor attained to his full Age of one and twenty years, and entred, and made a Lease thereof to him, &c. To which Plea the Defendant demurred, and adjudged for the Plaintiffe. For although the Estate to Jo: and H. precede in words, and the devise to the Executors insues in con∣struction, yet the estate to Io: Executors, precedes in possession. And is as if he should have demised the Land, untill his Sons Io: and H. should attain to their severall Ages of one and twenty years. And afterwards to them and their Heirs Males, &c. to be enjoyed in possession at ther severall Ages, so that the Executors have onely a limited estate, determinable in time, when either Son severally should attain to his full age, for his part. For so it appears, the Devisors in∣tent was that either Son might enter, when he attained to the age of one and twenty years. And although it was objected by Ju∣stice Williams, that the two Brothers are joyntenants by the Will, and if one should enter when he comes to his full Age, the other Brother being under age, that would destroy the intent of the de∣vise, for then they should not take joyntly, but the Court as to that said, that the entry of him that attained to his full age, doth not destroy the juncture, but that they are joyntenants notwith∣standing. For that entry in the intent of the Devisor, was only as to th•• taking of the the profits, and the possession, and not as to the estate in joyntenancy, and this is proved by 30 H. 6. Devise 12. where a devise was to foure in Fee, and that one of them should have all during his life, and this was adjudged good, and it was as to the taking of the profits onely, which observe by the whole Court but Williams.

RIce versus Haruiston Pasch. 10. Jacobi. The Plaintiffe declares of a Lease made by Jo. Bull, &c. The Defendant pleads that the

Land is Copihold Land, parcel of the Mannor of, &c. Whereof the King was seised, and is seised, and that the King by his Steward such a day granted the Land in question to him in Fee, to hold at will according to the custome of the Mannor, by vertue whereof he was admitted, and entred, and was seised untill the lessor entred upon him, and outed him, and made a Lease to the Plaintiffe, and then he entred, and did eject him, &c. The Plaintiffe replies, that long before the King had any thing in the Mannor, Queen Eliz. was thereof seised in Fee in right of her Crown, and before the Eject∣ment supposed by the Defendant, by her Steward at such a Court did grant the Land in question, by Copy to him in Fee, to hold at Will according to the custome of the Mannor, who was admitted, and entred, and further shewed the descent of the Mannor to the King, and how the Lesser entred, and made a Lease to the Plaintiffe, who entred, and was thereof possessed, untill the Defendant did eject him. Upon which Plea the Defendant did demurr, because he supposed that the Plaintiffe ought to traverse the grant alledged by the copy of the Defendant in his Barr. But the Court held the repli∣cation good; for the Plaintiffe had confessed, and avoided the De∣fendant by a former Copy granted by Queen Eliz: under whom the King that now is claimed, and so the Plaintiffe need not traverse the grant to the Defendant, but such a traverse would make the Plea vitious, for which see Hilliais Case, 6. Rep. And 14 H. 8. Dotknis Case, 2 E. 6. Dyer. And Brooks title confesse, and avoid, for as no man can have a Lease for years without assignment, no more can a man have a Copy without grant made in Court. Which observe.

SHecomb versus Hawkins, Pasc. 10 Jacobi. The case was in an espe∣cial verdict in Ejectment, that one Mrs. Luttrel Tenant in fee of the Mannor of L. leavied a Fine to the use of her self for life, and af∣ter death to the use of her eldest Son in tayl, &c. With power to her self at any time, to make Leases for one and twenty years, and be∣fore the Lease in being expired, she made another Lease to B. for one and twenty years to commence after the determination of the first Lease. And as to the third part of the Land she made a Lease of that for one and twenty years after the death of one Carn, who in truth never had any estate in the Land, and afterwards she dyes, the first Lease expires, And I: the Son enters, and makes a Lease to the Plaintiffe, And the Defendant claims under B. the Lessee, And adjudged for the Plaintiffe, for by such a power she could not make a Lease to comence at a day to come, but it ought to be a Lease in possession, and not in interest to comence in future nor in reversion, after another estate ended, but the Law will judge upon the gene∣rall power to make Leases without saying such ought to be Leases

in Possession, for if upon such power she might make Lease upon Lease she might by infinite Leases detain those in Reversion or Remainder out of the Possession for ever, which is against the intent of the par∣ties, and against reason, and adjudged accordingly: Trin. 30 Eliz. Earle of Sussex case, 6 Rep. 33. And Justice VVilliams said, that when he was a Serjeant, it was so adjudged in the Common Pleas in the Earle of Essex Case, and Judgement by the the whole Court.

BRasier versus Beal, Trin. 10, Jacobi. Upon an especial Verdict in Ejectment, the Case was, that a Copy-holder in Fee of the Man∣nour of B. in the County of Oxford, by license of the Lord lease the Land in question for sixty years to M. if he should live so long, rendring Rent with a Condition of re-entry, the Copy holder surren∣ders to the Lessor of the Plaintiff in Fee, who demands the Rent up∣on the Land, which being not paid he entred, and made a Lease to the Plaintif, & without any Argument the Court seemed to be of opinion that the Entry of the Lessor was not congeable, for Copy-hold land is not within the Statute of 32 H. 8. of Conditions, nor the Lessor such an Assignee that the Statute intends, for at the Common Law a Copy-holders Estate is but an Estate at will, & custome hath onely fixed his Estate to continue, which Custome goes not to such collateral things, as Entries upon Condition, for such an Assignee of a Copy-holder being onely in by Custome is not privy to the Lease made by the first Copy-holder, nor onely by him, but may plead his Estate immediately under the Lord, by the opinion of the whole Court.

ODingsall versus Jackson, Mich. 10. Jac. In Ejectment the Declarati∣on was, that the Defendants intraverunt, and that he did eject, ex∣pulse, and amove in the singular number, and after a Verdict for the Plaintiff upon Not guilty pleaded, the Defendant shewed this matter to the Court in Arrest of Judgement, for the Declaration is incertain in that point, because it cannot be known which of the Defendants did eject the Plaintiff; for by his own shewing it appears that the Eject∣ment was but against one, and upon that Declaration the Jury could not finde all the Defendants guilty, for by the Plaintiffs supposal one onely did eject him, but the Court gave Judgement for the Plaintiff, that the Declaration should be amended in that point, for it was but the Clerks fault, and so it was, and upon an Evidence in an Ejectment by the Lessees of Cresset and Smith: Yelverton said, that if a man comes into a Copy-hold tertiously, and is admitted by the Lord, and af∣terwards he makes a Lease for three Lives, which is a Forfeiture of his Estate, yet if he that hath the pure Right to the Copy-hold re∣lease to the wrong-doer, that it is good; for untill the Lord enter he is Tenant in fait, and if the rever as Copy-holder, 4 Rep. 15. But

Walter seemed of another opinion, and therefore quaere what benefit he shall have by the Release.

In an Ejectment the Plaintiff declared of an Ejectment of decem acris pisar. and upon the general Issue it was found for the Plaintiff, and it was moved in Arrest of Judgement, because the Plaintiff had declared de decem acris pisar. which is not good, for Pease are not known by the Acre, and therefore he should have declared de decem acris tene pisis seminaris, as if a man will demand Land covered with water, he must say, decem acras terrae aqua co opertas, but the whole Court held it good, for in a common acceptance ten Acres of Pease, or ten Acres sowed with Pease is all one, and so is the opinion of Cates∣by, 11 E. 4. 1. And the man the Secondary said, that so it had been ad∣judged in the Exchequer Chamber upon a Writ of Error.

MEerton versus Orib, Trin. 11. Jacobi, Orib brought an Ejectment * 1.411 against Meerton in the Common Pleas, 6 Jacobi, of a Cole∣mine in Durham in the County Palatine there; the Defendant plea∣ded not guilty, and it was found for the Plaintiff before the Justices Itinerantes there, upon which Judgement the Defendant brought a Writ of Error, and assigned for Errour, that the Plaintif appeared by an Attourney, whereas it ought to have been by Guardian, being under age: And upon an Issue that he was of full age was tryed at Durham, and found that he was within age; but the Plaintif had li∣cense to discontinue his Writ of Errour, and brought a new Writ of Errour, Quod coram nobis residat: And declared that M. was inha∣biting at Westminster in the County of Middlesex; and being with∣in age, appeared by an Attorney; the Defendant in the Writ of Er∣rour confessed that he was inhabiting at Westminster, but that he was at full age at the time: And upon the tryall in Middlesex, it was found that M. was under age: And it was alleadged in Arrest of Judgement, and it depended a long time that it was a mistryall; and the doubt and question was onely, whether the tryall at Westminster in this Case was good: And Davenport, and Yelverton were of opi∣nion that it was not good, for the Errour assigned was done at Dur∣ham, and because they there have the best notice of it, it ought to have been there tryed: As if Errour be in a Record, it shall be tryed where the Record is, 19 H. 6. 79.

Secondly, This is a reall Action, in which the Land shall be recover∣ed, and therefore though the Issue be upon a collaterall matter, yet it shall be tryed where the Land lyes, because it concernes the realty, but if it had concerned the person onely, it had been otherwise; and this difference is taken by Montham, 19 H. 6. 10. And therefore if a Feoffment be made upon payment, &c. If upon an Assise brought, the Defendant plead payment in another place, yet it shall be tryed

where the Land lyes: And so likewise if the Issue should be, which is the eldest Son, although they alleadge their births in severall Counties, yet it shall be tryed where the Land lyes; and so in that Case a Release of all his right was pleaded against him, and he plea∣ded that he was within age, and borne in another County, yet it shall be tryed where the Land lyes, and so adjudged, 7 H. 4. 8. and 17 E. 3. 36. b. 19 H. 6. 15. Nay though the Espousals be alleadged to be in another County, yet it shall be tryed where the Land lyes, and adjudged, 7 H. 4. 8. And Davenport inferrs from 36 H. 6. 9. A grand Cape against one, he comes and pleads that he was within age at the time of the first Cape, which shall be tryed where the Land lyes: And another exception was taken, because the Venire facias was not well awarded, for it was directed to the Sheriff of Middle∣sex, that he should cause to come twelve, Coram nobis apud westmo∣nasterium, which is not good, for that Court follows the King, and may be removed to any place, and therefore it ought to have been Ʋbicunque fuerimus in Anglia, but all the Judges, Fleming being absent, after mature deliberation held the tryall at Middlesex good, for they took this difference in their answer to the rule layd downe, that what concernes the realty, it shall be tryed where the Land lyes, for when nonage or the birth are alleadged to intitle one to the Land demanded, as if in an Assise the Tenant pleads a discontinuance, the Demandant sayes he was within age at the time; or to debarr ano∣ther of Land, that he was borne before marriage in these Cases, be∣cause the Inheritance of the Land depends upon it, although they be alleadged in another place, yet they shall be tryed where the Land lyes, 19 H. 6. And so it is 39 H. 6. 49. b. to be intended, but if non∣age or birth be pleaded as matter dehors, and not to the disabling of the title to the Land, but to another purpose, as here it is to the per∣son, because he could not appeare by Attorney, in this Case it shall be tryed where the Infancy is alleadged: As if in a Formedon in the Remainder, the Tenant pleads nonage in the Plaintiff, and prayes that the Plea may stay untill his full age, if Issue be taken upon it, it shall be tryed in the place where it is alleadged.

And as to the Exception to the Venire facias the Roll is right, which warrants the Writ, and therefore they held it was but the Writers fault, and should be amended: and Doddridge and Cook held the Triall good: if Infancy be alledged, the Triall shall be by inspe∣ction during his Nonage, as it is 17 E. 3. Account, 121. and 11 H. 4. 115. 25. Ass. 2. and 48 E. 3. 11. and the 11. Rep. f. 30. but if his Age upon inspection remains doubtfull, then the Judges may swear the party and examine Witnesses. And 25 E. 3. 44. and 50 E. 3. 5. but if the Infant come to full Age, it shall be tried by the Countrey, 33 H. 8. and they took this Difference in what place it should be tried,

for if the Action be reall, it shall be tried where the Land lies, as it is 21 E. 3. 28. 28 E. 3. 17. 44 Assis. 10. 46 E. 3. 7. 13 H. 4. 3. and if both places be in one County, then the venire facias shall be of both, 22 E. 3. 11. H. 4. 75. but if nonage be alledged in a personall Action, the Triall shall be where the writ is brought, 43. H. 6. 40. in Debt the Defendant pleaded infancy, and that he was born in such a place, yet the Venire facias was awarded of that place where the Action was brought, and 43 H. 6. 40. Prisot was of the same opinion, and the Law is the same, when it concerns the person as in misnomer, or that he is not the same person, and so in the Case in question, although the Action be brought in one place, and the nonage pleaded in ano∣ther County, yet it shall be tried where the Action was brought, and therefore the Action being brought in Midd. the triall of Midd. is good, for a writ of Error, is of the nature of an Originall which is personall, and they held the Venire facias should be amended, being but a matter of Form, and that it was no mistriall, it being awarded at a right place, and likewise the will is right which warrants it, and therefore it is but a misprision, and no mistriall, and the Venire facias shall be amended according to the will, and Judgement was given for the Plaintiff in the writ of Error.

Formedon.

BRigham versus Godwin, The Formedon did abate, by the death of one of the Demandants, and upon a new writ brought by Journes * 1.412 accounts, the Tenant was Essoined, and it was moved by the de∣manded, that the Essoin should be quashed, because the Tenant was Essoined upon the first writ, but the Essoin was allowed by the Court, but it was held by the Court, that if the Tenant had the view upon the first Writ, he should never have the view again, at the Common Law we might have had a new Essoin upon view, as often as he brings a new writ, and Husband held, that if by the Common Law it is to be granted, the Statute doth not abridge it, two views do not ly up∣on one writ at the common Law, and if this shall be accounted but one Writ, the view lieth not, but in this case the Tenant did relinquish the view, because he had day to plead.

NEvill versus Nevil, Mich. 15 Jac. rotulo 77. Formedon in le Discender, the writ was generall, and the Count was upon a Feof∣ment made after the Statute of uses, and a speciall verdict, whether

the Deed warrant the Count, the verdict, is whether upon the whole matter the said A. N. gave the moity of the third part of the Man∣nor, &c. for default of Issue of the Bodies of either the said G. and D. to the use of either of them surviving, and of the Heires males of his Body to be begotten or no, the Jury are wholly ignorant, the writ was to the use of G. and D. and of the Heirs males of the Bodies of the said G. and D. lawfully to be begotten, and for default of such is∣sue male of the Body of either of them, then to the use of either of them, having issue male of his Body lawfully begotten, and for de∣fault of such issue male of both the Bodies of the said G. & D. or either of them lawfully to be begotten, then to the use, &c. By Deed an im∣plication * 1.413 cannot be intended, if there be not apt words, otherwise, it is in a Will, for this is but a gift to a man and his Issue, for this gift is but to both of them for life, and severall inheritances.

Bishop & al. versus Cossen, Trin. 16 Jac. rotulo 62. In Formedon, the Tenant pleaded a warranty, and pretends that it was collaterall warrantry, where in truth it was a lineall warranty, and it was held naught, because the warranty was in Law a lineall war¦ranty; the Case was, that Land was givenby Feoffment made to the use of the Feoffer, for life, remainder in Tail, Tenant for life dies, Tenant in Tail had Issue a Son and two Daughters, and the Father and Son joyn in a Feoffment with warranty, and after the Father and Son die without issue, and the Daughters bring a Formedon, and this is a lineall warranty.

PIt versus Staple, Trin 14 Jac. rotulo 112. Formedon in le discender against three which plead non-Tenure, and issue thereupon joyned, and found specially, that two of them were Lessees for life, the re∣mainder to the third person, and whether the three were Tenants as is supposed by the writ, was the question, and the better opinion was, that it was found for the Demandant, for the Tenants should have pleaded severall Tenancy, and then the Demandant might main∣tain his writ, but by this generall non-Tenure, if any be Tenant it is sufficient, but in some Cases, the Precipe may be brought against one who is not Tenant, as a morgagor or morgagee.

COmes Leicester versus Comit. Clanriccard. In Formedon upon a Judgement given in part for the Demandant, and part for the Te∣nant, the Tenant brought a writ of Error, and had a Supersedeas up∣on it, and afterwards the Demandant prosecuted a writ of Seisin, and delivered it to the Sheriff, and he executed the writ, and immedi∣ately afterwards, the Tenant delivered the Supersedeas to the She∣riff, and the Tenant moved the Court, and prayed a writ of restitu∣tion,

and it was granted him, because the Tenant had done his indea∣vour, and had not delayed the prosecuting the writ of Error.

COmes Clanriccard & Francisca uxor. Ejus Demandants, versus R. S. milit. vicecomit. Lyple for three messuages, &c. which R. late Earl of Essex, and Frances late wife of the said Earl, by Fine in the Court of the Lady Elizabeth, late Queen of England, before her then Justices at Westminster, levied and gave to William Gerrard Esquire, and F. Mills Gentleman, and the Heires of the said W. for ever, to the use of Elizabeth Sydney, Daughter and Heir of P. S. Milir. and the Heirs of the Body of the said E. comming, and for * 1.414 default of such issue, to the use of the said F. then wife of the said Earl, and the heirs of the said Fr. and which after the death of the said Eliz. ought to revert to the said Fr. by form of the gift afore∣said, and by force of the Statute in such case provided, because the said Eliz. died without Heir of her Body. The Tenant pleaded in a∣batement of the writ, because the writ ought to revert to the wo∣man alone, and it should have been to the Husband and wife, and up∣on a demurrer, Judgement was, that he should answer over, the writ may be either to revert to the Husband and wife, or to the wife alone, and herein the Tenant vouch two vouches, and one is Essoined, and an idem dies given to the other, and Serjeant Harris demanded of the Court if he should Fourcher by Essoin, because the Statute of West∣minster, the first is, that Tenants, Parceners, or Joint Tenants, shall not fourcher in Essoin, therefore they two should not fourcher by Essoin, but the Court held, that before appearance it could not ap∣pear to the Court, whether they were Tenants or not, and therefore before appearance they shall have severall Essoins, and Westminster, the first is expounded by Gloucester the tenth, which is, that two Tenants shall not fourcher after appearance▪ and at the day of the adjournment of the last Essoin, the Tenant was Essoined, and such Essoin was allowed and adjudged by the whole Court, and the rea∣son hereof seemed to some to be, because the Tenant might be inform∣ed of the Vouchee, that he vouched was the same person or no, for he might be onother person, for if he should be an estranger, and de∣mand the place, and the Demandant could not hold him to the war∣ranty, the Demandant should loose his Land, and they held that up∣on severall Processe, to wit upon the view and upon the summons to warranty, which are divers Processes, the Tenant ought to be Essoined, and the Court held that this Essoin was at the Common Law, if the Tenant and the vouchee at the day given to the Tenant, and the vou∣chee make default, Judgement shall be given against the Tenant, to wit a petty Cape, and nothing against the vouchee.

SHotwell versus Corderoy, In Formedon the Tenant prayes in aid, ••nd the prayee in aid and Tenant vouch, and the Vouchee was es∣soined and adjourned, and at that Day the Attorney of the Tenant, without the Prayer in aid cast an Essoin; and an Idem dies given the Prayee in aid, and it was quashed; for they shall not have severall Essoines but joynt Essoines.

A Formedon brought of Lands in A. B. & C. The Tenant pleads a * 1.415 Fine of all by the name of the Mannour and Tenements in A. & B. And it was objected that he said nothing to the Land in C. but the Courtheld that by the name of the Mannor the Land in all the Villa∣ges would pass: and the Demandant may if he will plead as to the Land in C. that it was not comprised in the Fine.

Hill. 7. Jacobi, rotulo 76. vel 69. Formedon in the Discender the * 1.416 Writ was general that J. L. gave to T. L. and the Heirs Males of his Body, upon the Body of D. V. Widow lawfully to be begotten, which D. the said T. afterwards took to Wife, and which after the Death of the said T. &c. Son and Heir Male of the Body of the said T. upon the Body of the said D. lawfully begotten to the said J. L. younger Son and Heir of the said J. L. Son of the said T. ought to descend by form of the Gift aforesaid, &c. and whereof he saith, that the said T. was seised, &c. and 2 Eliz. of the said Tenements did in∣feoff the Plaintiff in Fee to the use of the said T. L. and his Heirs, &c. and note, in the Count no mention made of the Marriage.

If a Gift be made in tail to D. and his Heirs Males: the Remainder to A. in tail, D. discontinues in the Life of A. and D. dies without Issue, and the Heir of A. brought his Writ, as the immediate Gift to A. his Ancestor, who never was seised in his Life, and for that cause the Writ was naught; but if A. had been seised of the Land, then it had not been necessary to have shewed the first Gift to D. by the opinion of the whole Court.

Actions upon the Statute of Hue and Cry.

NEedham versus Inhabitant. Hundredi de Stoak, Trin. 8. Jac. * 1.417 rotulo 534. Action brought upon the Statute of Hue and Cry by the Servant who was robbed in his own name, and part of the Goods were his Masters, and part his own proper Goods, and found guilty as to his own Goods, and a special Verdict, as to the Goods of his Master; and Judgement for the Plaintiff.

COnstable versus Inhabitant▪ in dimid. Hundred. de VValsham in * 1.418 Comitat. Essex, Trin. 15. Jacobi, rotulo. 2244. The Action wa∣brought for a Robbery, the Defendant is found guilty, and it was al∣leadged in Arrest of Judgement, that the Action would not lie, be∣cause it was not brought against the whole Hundred: and it was an∣swered on the Plaintiffs behalf, that the half Hundred is a Hundred by it self; and the Court held, the Writ should have been brought against them in this manner, Inhabitantes in Hundredo de W. called the half Hundred of Waltham; but the Writ was held good; for the Writis, & so shall be intended to be brought against the men inhabit∣ing in the half hundred of W. & Judgement for the Plaintif; & in a spe∣cial verdict, the Jury found that the robbery was done upon the Sun∣day, and it was held in the Kings Bench, that the Hundred was liable.

NOrris versus Inhabitantes in Hundredo de G. Hill. 14. Jacobi, rotulo 431. And the Plaintiff declares upon a Robbery done the * 1.419 ninth day of October, An. 13 Jacobi. And the Originall bears Teste the ninth of October 14 Jacobi, and after a Verdict, Serjeant Har∣vey moved to stay the Judgement, because the Writ was not brought within one year after the Robbery done, according to the forme of the Statute of 27 Eliz. And the Court held it a good Exception.

CAmblyn versus Hundredum de Tendring, Trin. 15. Jacobi, rotulo * 1.420 1952. The Plaintiff in his Declaration had mistaken to alleadge the very Day of the Robbery, for he shewed the Robbery to be com∣mitted in October, where in truth it was committed in September; and the Court was moved, that the Record which was taken out for Tri∣all, but never put in, might be amended, for the notice given to the Hundred, as the Record is, would appear to be before the Robbery, and they granted that it should be amended.

Actions in Partition.

THe Process in Partition are Summons, Attachment, and Di∣stress, and the Process are returnable from fifteen Dayes to * 1.421 fifteen Dayes; and if the Writ be brought against two or more, several Essoines will lie, but no View, and the Sheriff upon the Distress is compellable to return the value of the Land from the teste of the Original untill the Return thereof: and if the Writ be against two or more De••e••••iants, and onely one appears, the Plaintiff cannot

declare against him, untill the residue of the Defendants appear: and Partition lies by the Statute of 31 H. 8. cap. 32. between Joint∣tenants, Tenants in Common, Tenants for Life or for years, but at the Common Law Partition was onely between Coparceners, his Petit. is no Plea in Partition, and in this Action there are two Judgements, the first is, that Partition shall be made, and if the Plaintiff die after the first Jugement, and before the second Judgement, the Writ shall not abate, but his Heir shall have a Scire facias against the Defendants, to shew cause why Partition should be made, and a Writ of Partition will not lie of the View of Frank Pledges; and the Death of one of the Defendants abates the Writ. And note, the Plaintiff may have a general Writ, but a special Count: and if the Defendant confess part, and plead Quod non tenet insimul & pro indiviso, for the residue the Plaintiff may have Judgement upon the Confession, and a Writ to make Partition upon the Confession before the Triall, and after∣wards try the Issue for the residue, or else he may respit his Judge∣ment upon the Confession untill the Issue be tried, but this is dan∣gerous; for if the Plaintiff be non-suit at the Assise, then the whole Writ will abate: and if the Sheriff return the Tenant summoned, when in truth he was not, an Action of Deceit lies not, but an Action upon the Case, because the Plaintiff shall not recover the Land by default, and you shall never have a Writ of Partition against one, where he cannot have one against the other; thirteen men joyn in a purchase of a Mannour, the Conveyance was of the moity to one of them in Fee, and the other moity to the other twelve men in Fee, the twelve make a Feoffment to one, of twelve several Tene∣ments, and Land, and that Feoffee makes twelve several Feoff∣ments to those twelve men, now the thirteenth man which had the other moity bringeth one Writt of Partition against them all, pre∣tending that they held insimul & pro indiviso, and by the opinion of the whole Court it would not lie, but he ought to have brought se∣veral Writs, and Mich. 6. Jacobi. in Partition, because both of them are in Possession, he that is not prohibited may cut down all the Trees and no Estrepment will lie.

COcks versus Combstoks. The Plaintiff declares that one A. was * 1.422 seised in Fee, and demised for years to J. and L. and to the Plain∣tiff for term of Life: and one of them demised to one of the De∣fendants for years; the Defendant as to part pleads, that he did not demise; and the other pleads Non est informat. and a Demurrer to the Plea of Non demisit, because it is but argumentative, Quod non tenet insimul, and it was adjudged a naughty Plea, a Writ of Error lies in Partition upon the first Judgement, before the Writ be re∣turned.

MIll versus Glemham. The Defendant pleads, that he before the * 1.423 purchasing of this Writ, had brought a Writ of partition for the same Land against the Plaintiff, which yet depends, and demands Judg∣ment if the Plaintiffs Writ were brought. And the Court held, that the Writ last brought is well brought; for if the first Plaintiff will not proceed upon his Writ, and the Defendant shall confess the Action, yet the Defendant cannot sue a Writ to make partition upon that Plaintiffs Writ, and therefore it is reasonable that the Defendant in the first Action may sue out a Writ to make partition, and that the Defendants plea is naught, and the last Writ is well prosecuted.

Actions upon Quare Impedit.

THe Process in this Action, are Summons, Attachment, and Di∣stress, * 1.424 peremptory by the Statute of Marlborough, cap. 13. the Sheriff must summon the Defendant by good summoners, and return their names upon the original Writ, and not return com∣mon summoners, as John Doo, and Richard Roo; for a Writ of deceit lyeth in this Writ, if the summons were not made indeed; The Writs hereupon are returned from 15. days to 15. days. The summons up∣on the first Writ may either be made at the Church door to the per∣son of the Defendant. And although a nihil be returned upon the first summons, Attachment, and Distress; yet if the Defendant make default upon the Distress, a Writ shall goe to the Bishop upon the title made by the Plaintiff: but at the common Law a Distress infinite did lie, and no Writ to the Bishop before the appearance of the De∣fendant; but now this is taken away by the Statute of Marlborough, cap. 13. A Writ of Journes accompts lieth upon the death of the Te∣stator, and summons and severance if one of the Plaintiffs will not sue.

The Judgment in a Quare impedit, is to recover the presentment, and the value of the Church for half a year, if the Plaintiff remove the Clerk: And if he do not remove the Clerk, then the value of the Church by two years, and the value shall be levied by fifa or elegit, and not by capias ad satisfaciend. for that no capias lay before the ap∣pearance upon the Original. Four things are to be enquired on in a Quare Impedit; the first is, whether the Church be full or no; the se∣cond is, if it be full, of whose presentment; thirdly, whether the six moneths be past from the time it became void; fourthly, the value of the Church by the year.

If a Quare Impedit be brought against diverse, they shall have seve∣rall

essoins before appearance; if the first man be essoined, it must be adjourned for 15. days, idem dies shall be given to the rest. And at that day another of the Defendants may be essoined for 15. days more, and an Idem dies given to the rest, and so of all the rest of the Defendants. And if the Defendant take not his essoin upon the sum∣mons, he may take his essoin upon the Attachment. And if the Plain∣tiff do not adjourn the essoin, he shall be nonsuit: And note, that the Defendants are not bound to appear after they have had their essoins untill the return of the Distress; for an essoin is no appearance, be∣cause it may be cast by a stranger: And note, if the Quare Impedit be not brought against the Incumbent that is presented and admitted into the Church, at the time of purchasing the first original Writ, that Clerk shall never be removed by the Plaintiff, although he hath judg∣ment to remove his presentation: but if a stranger be presented, hang∣ing the Writ; if the Plaintiff recove, he shall remove him: And ther∣fore the surer way is to bring the Writ against the Bishop, Patron, and Incumbent, and then the Bishop shall not present by Cupps: and if the Patron be omitted in the originall, the Writ is abateable.

If the Originall writ be brought against three, one May appear before his companions, and Processe shall be continued untill Distresse be against the rest, and the Plaintiff in the mean time declare against him that appears in the Simulcum, and if he that appears pleads non impedivit, the writ shall be awarded to the Bishop, but there shall be acesset Executio, untill the Plea between the Plaintiff, and the other Defendants be determined, and if the Bishop appear and claim nothing but as Ordinary, a writ shall issue to the same Bishop upon that Judgement, but if the Bishop makes a Title to present, & Judge∣ment is given for the Plaintiff, then the writ shall issue to the Me∣tropolitan of Canterbury, if the Church be within his Province, and so to the Metropolitan of York, if it be within his, and upon a Judgement by non sum informat. or nihil dicit, the writ, shall go to the Arch-Bishop, and not the Ordinary, if the writ be against him. The death of one of the Defendants, hanging the writdoth not abate the writ, nor of one of the Plaintiffs Parcenors. If the Incumbent reco∣ver, he shall recover damages, for he cannot have a Writ to the Bishop, and if a man recover in a Quare impedit, and die, his Heir shall not have Execution, for it is not a reall Action, and the Plaintiff ought alwayes in his Declaration to make mention of the last Incumbent, or otherwise his Writ shall abate.

The Husband alone, but in the Right of his wife, may without his wife bring a Quare impedit, but not an Assise, de Durraigne present∣ment, for he shall recover nothing but his presentation and damma∣ges, and if the wife dye hanging the writ, it shall not abate, and a writ did abate because it was that he should permit him to nominate

a fit person, where it should be to present, for an Advowson in VVales, the writ shall be brought in the next English County, and Judgement shall be given in his Action for the Plaintiffe, at the Assises, and de∣ceit lyes as upon a Judgement had in this Action upon default upon every Issue issued, joyned by Iury, the Iury shall inquire of the points of the writ, and note, admission, plenarty, institution, and ability shall be tried by the Ordinaries Certificate, but if the Issue be whe∣ther the Church be empty by resignation, or whether the Patron have presented his Clerk, it shall be tried by the Couutrey, and in this writ the Defeudant shall neither have his age, nor a protection, nor an Essoin, as in the Kings service to avoid the Cupps.

If the King was Plaintiff & that the defendant was not summoned by the Sheriff, nor attached, nor distrained, and the King had Judge∣ment by default, no writ of deceit lies in an Assise of Durraign, Pre∣sentment of the writ be brought in Midd. at the Return of the writ, the Assise shall be there arraigned by the Serjeants at the Barr in French, and the Tenant shall be demanded, and if the Tenant do not appear, when he is demanded, a resummons shall be awarded, and if upon the resummons, the Tenant shall not appear, the Assise shall be taken against him by default, and if the Tenant appear, he may demand Oyer of the writ and the Return, and the writ shall be read to him, in haec verba, and the Return thereof, and the Jury shall have the view, and the Tenant may take exception, either to the writ, or to the Return thereof, if there be cause, and if there be no cause, then he may pray a day to plead, and if the Court give a day, then the Jurors that appeared, shall be discharged of their attendance, and ought to appear upon a new Processe to be awarded against them, the Judgement in this Assise is to recover the Presentation, dammages, and the value for half a year, and if six moneths be past, the value of the Church for two years, by the Statute of Westminster, Ed. 2. and six of the Jury ought to have the view of the Church, to the in∣tent that they may put the Plaintiff into possession if he recover, and in this writ the Plaintiff shall not recover the Advowson, but the Pre∣sentation, the Processe in this writ is summons, resummons against the Tenant, and summons, habeas corpus, and distresse against the Ju∣ry, and the Processe shall be returned from fifteen dayes, to fieteen dayes, and no Essoin nor voucher lies after a resummons.

If the King present his Clerk, one may have an Assise against his Clerk only, and not against the King, and at Common Law none can have an Assise, but only the Tenant of the Freehold, but by the Sta∣tute, Tenant by Statute, Merchant, or Elegit may have an Assise, if the Incumbent hanging the writ die, and the disturber present again, that writ lyes by Journes account upon the first disturbance, and al∣wayes in a Declaration in a Quare impedit, you must lay a Presentati∣on

in him from whom you first derive your Title, or under some from whom he claimeth, otherwise it is not good. The Bishop cannot grant a Sequestration in no Case, but where the Church is void, but if the Clerk be instituted, and inducted, no Sequestration lieth.

CƲppel versus Tansie, Trin. 16 Jac. rot. 3210. Quare impedit brought for the Church of Bleby, the Issue was, that there was no such * 1.425 Church, and the Venire was, de visu de Bleby, and the Exception was, because it was not of the Body of the County, but the Exception was salved, because in the Declaration it was alledged, that one died at Bleby aforesaid, and it was held, that every place alledged, shall be intended to be a Town, and by the user of the writ, it is presumed in Law to be a Parish, and then if there be a Parish, and a Town, if the Venire facias be either of the Parish or Town, it is good, and it is a good Writ to demand Manerium de D. with the appurte∣nances.

Severall Quare impedits may be brought against severall Defen∣dants, as one against the Bishop, and another against the Patron and * 1.426 Incumbent, but if J. S. brings a Quare impedit against A. B. that A. B. cannot have a writ against the said J. S. if a Quare impedit, abates, within the six moneths the Plaintiff may bring another writ, but if the Plaintiff be non-suit within the six moneths, he cannot have a new writ, because the Defendant upon Title made, hath a writ to the Bishop, and for that cause, a new writ will not lie.

COmber versus Episcopum Cicester, & al. Trin. 6 Jacobi. rotulo 1629. The issue in a Quare impedit was, if S. Rose by co∣vin * 1.427 between him and Comber and Rivers, did resign into the hands of the said Bishop, if the King hath Title of lapse, and a resignation be made by fraud, and one admitted, this shall not take away the Kings Title, for if the Kings Title appear upon Record, then shall go out a writ for the King, but otherwise it is upon matter of Evidence, the King shall loose his presentation, as well by resignation, as by Death, where he hath Title to present by lapse, and doth not, except the re∣signation be by fraud, and where an avoidance is by Statute, there needeth not notice to be given to the Bishop.

LOrd Say versus Episcopum de Peterborrow, Mich. 30 Jacobi rotu∣lo * 1.428 2601. The Imparlance and the demurrer entred, Hill. 7. Jacobi, rotulo 3458. The Case was Tenant in Tail grants the Advowson to o∣thers, to the use of himself and his wife, and the Heirs males of the Husband, and the Husband dies, and the wife survives, and the Lord Say marries the woman, and brought the Quare impedit, the estate is determined by the death of Tenant in Tail, and Judge∣ment

was given for the Bishop upon a Demurrer, in a Quare impe∣dit, if any of the Defendants do barr the Plaintiff, the Action is gone.

WAllop versus Murrey, Trin. 8. Jacobi, rotulo 3905. The Church became void by resignation and a presentation upon the proviso in the Statute of 21 H. 8. for the Kings Chaplains. The Kings Chap∣lains might have three Benefices with license, nay he may give to them as many as he will, being of his own gift, Judgement for the Plain∣tiff, if the Incumbents Plea be found for him, he shall never be remo∣ved, although other Pleas be found for the Plaintiff by the whole Court, Pasch. 9. Jacobi. If the writ abate for Form, you shall ne∣ver have a writ to the Bishop, nor where it appears that you have one Title.

DOminus Rex versus Emerson. Trin. 8. Jac. rot. 1811. The questi∣on was, where the King had Title to present to a Church by rea∣son * 1.429 of ward-ship, and after livery: and before the King doth present under the Seal of the Court of Wards, the King doth present by his Letters patents under the great Seal of England, and the Clerk is admitted, instituted, and inducted, whether the Clerk shall be re∣moved or no, and the Court held that he should not: and Judg∣ment that the Plaintiff, nihil capias per breve, he that getteth it first by the Court of Wards or great Seal shall have it, there needeth no recitall in the grant. A common person by his letter or his word may make a presentation to a Benefice to the Bishop; the King may pre∣sent by word if the Ordinary be present; for a presentment is but a commandement; if the King under any Seal present, it is good: It is best to plead the King presented generally, and not to plead it by Let∣ters Patents, for it is the worst way, and judgment was given for the Defendant: and Mich. 10. Jacobi, it was held by the whole Court, that a presentment under the great Seal, to a Church parcell of the Dutchy of Lancaster is good, and needeth not to be under the Dutchy Seal.

CRanwell versus Lister. The Defendant had been Parson for three years, and pleaded plenarty generally by six moneths of the pre∣sentation of one Stiles, a stranger to the Writ: And the Court held * 1.430 the Plea to be nought, because the Defendant shewed no Title in Stiles.

NEedler versus Winton and Needham, Hill. 12. Jacoci, rotulo, 1845. In a Quare Impedit, the Case was, Husband and Wife, bar∣gain and sell Land to the King; this is as good as a Fine being found,

if it was delivered to the King, but not entred of Record; if it was made and delivered, it was good: but if the King should before it be delivered, grant it out, it had been void, being not enrolled of record; for the King in consideration of the bargain and sale of the Husband and Wife before the Deed inrolled, did grant to them the Parsonage of Horsham: in this case the Wife is bound as strong as by Fine, and the King made the grant between the date of the deed, and before inrolment. If the Kings Clerk be once inducted, the K. cannot remove his Clerk at the common Law, before the Statute of 34. H. 8. If a Quare Impedit were brought against the Patron and Clerk, the Patron might confess the Action, and so prejudice the Clerk; there∣fore by the Statute the Clerk being inducted, he may plead that he is Parson impersoned, and so defend himself.

GLaswick versus Williams, Hill. 9. Jacobi, rotulo, 854. A Quare * 1.431 Impedit brought of the Rectory of I. Stoneley, one of the Tellers in the Exchequer, was indebted to Queen Eliz. And it was found that he was seised of a Mannor, ad quod, &c. in fee, and sold it to the Plaintiff, who brought a writ to remove the Clerk, who was admitted by the presentation of Stoneleys wife, to whom a joynture was made by her Husband before he was indebted to the Queen: and it was pretended that the joynture was void by the Statute of 〈…〉〈…〉 and so was the opinion of the Court.

If one usurp upon the King, where the King hath Title, the Clerk cannot be removed, but by a Quare Impedit: but where the King is to present by laps, and one doth present the King during the life of the * 1.432 Clerk, shall remove him: but if he dye, the King hath lost his presen∣tation; but if the Clerk resign, then is it no prejudice to the King.

COmes Bed. versus Episcopum Exo. Trin. 14 Jacobi, rotulo, 2235. A * 1.433 Quare Impedit brought, the Bishop and Incumbent joyn; and plead that there is another writ depending against the same Bishop only, and pleads it: and that the disturbance in this Declaration, and the disturbance in the former Declaration, are one and the same di∣sturbance. The Plaintiff replies, that the first writ was brought for a∣nother disturbance, and traverses without that, that they are one and the same impediment, and the Defendant demurs upon that plea, and Judgment given for the Defendant, that it was a good plea in abate∣ment; for although the presentation and the disturbance are both of them in question, yet the presentation is the main, and the presenta∣tion but as accessory.

BIrkhead versus Archiepiscopum Eborum & al. Pasch. 14. Jacobi * 1.434 rotulo 953. A Quare Impedit brought for the Vicaridg of Leeds in York-shire. The Arch-Bishop claims nothing but as Ordinary, and pleads further, that the Church became void the first of January, An. 12. Jacobi, and that six moneths had elapsed; by reason whereof he collated the 23. Decem. and Cook the Incumbent pleaded the same plea; the Plaintiff replyed, and confessed the Avoidance the first of January: but he further said, that within the six moneths, to wit, the 20. of May, &c. he presented his Clerk, and the Arch-bishop re∣fused to admit him: And afterwards, to wit, the 30. of May, the Bishop collated, and the Defendant demurred for the doubleness of the plea. If the Incumbent plead good matter for his presentation, although the Bishop plead insufficiently, that shall not prejudice the Clerk: And the Defendant took exception to the Plaintiffs writ, be∣cause it bore-date the 9. of May, the presentment was 29. of May, and the refusall of the Bishop was the said 29. of May, and he colla∣ted the 30. of May: and so the writ was brought before the refusall made by the Arch-Bishop.

DOminus nuper Rex Jacobus versus Episcopum Roffen. & al. Hill. 13. Jacobi rotulo, 2330. A Quare Impedit brought for the Church of Milton near Gravesend in Kent, and the issue was, that Queen Eliz. was seised of the advowson of the said Church, &c. and upon tryall of the issue, the Jury found it specially; by which it ap∣peared, that the Queen had Title but at two turns, and the Bishop had one turn: and because it appeared to the Court, that the Queen had Title to that turn, therefore a writ was awarded to the Bishop for the King.

WInchcomb versus Episcopum recutor. & al. Pasch. 14. Jacobi rotulo, 1026. The case was, that a Clerk in Salisbury, when the Church was full, contracted with the Patron, to give him 98. l. when the Church should become void, the then Incumbent being a very old and sickly man, and did conclude, that the Patron should grant the next avoidance to a Friend of his who presented him. And this was held to be a Simonaicall contract. The Clerk was admitted and continued in all his life, and died, and now the King presented.

The qustion was, whether the King, not taking advantage thereof during his life, shall have now the presentment, if he had resigned or made cession, and then another had been presented, and then the first * 1.435 Clerk had died, the King then had lost his turn. Hubbard and Winch held that the King had not lost his presentation, for he never was Parson, and that the King after his death shall have his turn: and Winchcomb cannot have it, because the Church was void when

the lease of the Mannor was made. And Calverts case in the Exchequer was remembred; for the Church being void, P. contracts simoniacally with the Patron to have the presentation, and upon this corrupt a∣greement he presents R. who was ignorant of this corrupt agreement, and yet he was removed; for he shall be punished for the offence of his Patron: the admiission upon such corrupt agreement maketh the institution and induction void.

AƲsten versus Episcopum London, & al. Pasch. 12. Jac. rotulo, 2255. A Quare Impedit brought for the Church of B. he claim∣ed by grant of the next avoidance from Sir Edward Pynchion. The De∣fendant pleads a Usurpation by Queen Mary upon a deprivation and plenarty of her Clerk by six months. The Plaintiff pleads a recove∣ry by a Quare Impedit upon a non sum informat. by the Patron against the Queens Clerk. If the King upon usurpation present, and his Clerk be in by six moneths; if the Patron bring a quare Impedit a∣gainst the Kings Clerk, and recover by non sum informat, this shall re∣mit the Patron to his ancient right: otherwise it is, if the King do pre∣sent by Title in the case of deprivation, the Patron must have six moneths after notice. And Judgment was given for the Plaintiff.

WIvel versus Episcopum Cestrie & al. Pasch. 12. Iacobi rotulo, 626. Tenant in tayle and his sonne, grant an advowson, and the Father dyeth, the grant is void, and Judgment for the Plaintif.

WIndham versus Episcopum Norwic. & al. Mich. 13. Jac. rotulo, 2042. A Quare imped. brought that the Bishop should permit the Plaintiff to present, &c. to the Church of A. &c. and declares, that whereas E. W. Knight, was seised of the Mannor of M. with the appurtenances, to which the advowson of the said Church, to wit, to present to the said Church every first turn, &c. and that the Duke of Norfolk was seised of the advowson of the said Church, to wit, to present to the same every second turn. And that one T. G. was seised of the advowson of the said Church, to wit, to present to the same e∣very third turn, &c. And an exception was taken to the Declaration, because by the writ the Plaintiff claimed the intire advowson, and by his count he claimed but the third turn: and also he did not alledg that he ought to have the first turn; but the exceptions were over-ruled by the Court; for when the Church is void, and it appertains to him to present; he hath the intire advowson, but otherwise it is, when there are two advowsons in one Church, for there the Court must be to the moity of the Church, or the third part.

THe late King James against Matthew, Trin. 4. Jacobi. The King was Plaintiff in a Writ of Error against Matthew, upon a Judgement given in a Quare impedit, against the King in the Common Pleas, of the Church of A. and the Question was, whether a double usurpation upon the King doth so put him out of Possession, that he shall be forced to his Writ of Right, and it was ad∣judged in the Common Pleas against the opinion of Anderson, that he was put to his Writ of Right; but a Writ of Error being brought upon that Judgement in the Common Pleas, the Judgement was re∣versed by the opinion of Popham, Yelverton, Williams, and Tam∣feild; Fennor, being of a contrary opinion, and they alleadged two Reasons; first, because the Right of Patronage, and the Advowson it self being an Inheritance in the Crown; upon Record the Law will so protect it, that no force or wrong done by a Subject, it shall be devested out of the King, for there is a Record to intitle him, but there is no matter of Record against him, for a Presentationby a Sub∣ject is but matter in fait, the which Act although it be mixed with the judicial Act of the Bishop, to wit, Institution, yet it shall not preju∣dice the King, being onely grounded upon the wrong of a Subject: and the second Reason was, because no man can shew when the Usur∣pation upon the King should commence and begin; for it is not to be doubted, but that the King after six Moneths passed, if the Incumbent cy might have presented, for plenarty is no plea against him, and Nullnm tempus occurrit Regi; and after that Usurpation upon the King, the Court doubted not but that the Patronage was still in the King; and Popham said, that a Confirmation being made by the King to such a Presentee, is good, to establish his Possession against a Re∣covery in a Quare impedit by the King afterwards, but that it should not inure to any purpose, to amend the Estate of the Usurper, for he gaines no Posaession by the Presentation against the King, but the Re∣lease to him made by the King is void, as to so much as is in posaes∣sion, and during the life of the first Presentee, the whole Court did not doubt but that the King might present, and then the Death of the Incumbent could not make that to be an Usurpation, which was not an Usurpation in his life, for his Death is a Determination of the first wrong, which will rather help then injure the King: and Tan∣feild said, that so it had been resolved in the Common Pleas, 23 & 24 Eliz. in one Yardleys Case, for in that Case there was not any In∣duction, for which reason Judgement was not entred, but they were all of the same opinion, as the Court then was; and onely 43 E. 3. 14. 14 E. 3. and 18 E. 3. are against it; and Popham said, that a Quare impedit was by the Common Law, but it was onely upon a Present∣ment, to wit, Induction; but if the Incumbent was to be inducted, then at the Common Law a Writ of Right of Advowson onely lies.

DIgby versus Fitzch, Trin. 14. Jacobi, rotulo. It was said, in this Case by Justice VVarburton, that the Presentment is the Posaes∣sion in a Quare impedit, as in Rent, the receiving, and in common, the taking of the profits: and in a Quare impedit one ought to shew in his Title a Presentation either by himself, or one of those, under whom the Plaintiff claimes as in a Writ of Right of an Advow∣son, one must shew a Presentation in himself, or in his Ancestors, whose Heir he is plenarty in a Quare impedit, shall be tried by the Bishop, for the Church is full by Institution onely in common persons Cases, but in the Kings Case the Church is not full un∣till the Clerk be inducted, but whether a Church be void or not, shall be tried by the Countrey, for of Voidency the Countrey may take notice.

Actions upon Replevins.

IF the Cattel be distrained, the party that owes them may have a Re∣plevin, either by Plaint, or Writ, at his pleasure, and if it be by plaint in the countrey, and the Bailiff return to the Sheriff that he cannot have the view of the Beasts to make deliverance, then the Sheriff ought to inquire of that by Inquest of office, and if it be found, that the Beast be not to be had, then he ought to award a Withernam, and if the Sheriff will not do it, then an Attachment shall issue against the Sheriff to the Coroners, and after that a Distresse, and if a Wither∣nam be granted, and a nihil returned upon the Withernam, he shall have an alias & plures, and so infinitely; and a second deliverance lies after a Withernam; and note, that sometimes a Withernam lies af∣ter a Withernam, as when the Plaintiff is non-suit, and after a Return habend. and that the Beasts are not to be found, & that the Beasts of the Plaintiff are taken in Withernam, and the Plaintiff appears, and al∣leadges that the Defendant, had the cattel first taken, and prayes Delivery.

And if the Defendant, when the Sheriffe comes to make replevin of the cattel, claims property, then at the return of that writ, another writ, de proprietate probanda shall issue to the Sheriff, by which writ the Sheriffe is commanded; that taking with him custodibus placito∣rum, &c. he shall enquire of the property. And if it be found that the property was to the Plaintiff, then a redeliverance shall be made the Plaintiff, and an Attachment against the Defendant, to answer for the contempt in taking, and unjustly deteyning, the cattell of the Defen∣dant

appear upon the plures withernam, he shall gage deliverance presently. And if the Defendant in Court claims the property, and it be found against him, the Plaintiff shall recover the value of the cattell and his dammages. And if the Defendant plead in abatement of the writ, that the property is in the Plaintiff and one other, &c. and the Plaintif confesse it, by which the writ shall abate by an award upon the Role, and a return habend. be awarded to the Defendant, yet the Plaintif shall have a new replevin, and the return shall not be irreplegiable; for the Statute of Westm. the second, doth not help a false writ, or abatement of a writ: but the Plaintif may have a new writ from time to time, but it helps non-suits in replevin; for if he be non-suit, he shall not have a new replevin, but a writ of second delive∣rance. And if the Defendant upon the return habend. adjudged for him, cannot have the return of the Beasts, and the Sheriff returns up∣on the return habend. that the cattel first taken are dead, he may have a Scire facias against the pledges: and upon a nihil return upon that, he may have a Scire facias against the Sheriff, for insufficient pledges are no pledges; and the party may relinquish his withernam, and fall upon the pledges or the Sheriffe. And if cattell be put into a Castle or Fortress, the Sheriffe may take the power of the County to make a replevin upon the plures replevin: a replevin will not lye of deeds or charters concerning Land, and no return habend. lyes upon a justi∣stification: and if a discontinuance be after a second deliverance, the return habend. shall be irreplegiable. And if the Defendant after an advowry will not gage deliverance, he shall be imprisoned for the con∣tempt: no disclaimer lies upon a justification, but upon an advowry.

And if the replevin was sued by writ, and the Sheriffe return there∣upon, that the cattell are not to be found, then a withernam shall be awarded against the Defendant: and if a nihil be returned, then a capias alias & plur. withernam, and thereupon an Exigent: and if hee do at the return of the exigent find pledges to make deliverance, and be admitted to his Fine, then the Plaintiff shall declare upon an un∣core detent. and goe to tryall upon the right of the cause of distress: and if it be found for the Plaintiff, he shall recover his costs and dam∣mages: And if for the Defendant he shall have a return habend. But if upon the return of the Plures repleg. the Defendant appear, then no withernam lies, but he must gage deliverance, or be committed: and the Plaintiff shall count against him upon an uncore detent. and so proceed to the rightfull taking of the distress. And if it be found for the Plaintiff if the Cattell be not delivered, he shall recover the value of the goods, and costs and dammages, if for the Defendant, costs and dammages, and a return habend.

WIlkins versus Danre Trin. 6. Jacobi, rotulo, 930. The Defen∣dant avowed a rent charge, granted to his Father in fee, with a clause of Distress: the Plaintiff demands Oyer of the deed, which was a grant of the rent to one and his heirs, to hold to him his Heirs, Executors, and Assigns to the use of the said H. and his Assigns du∣ring the life of a stranger: And whether it was in fee, or for life, was the question, and whether the habendum be contrary to the premises, or do stand with the estate: If the habendum had been to him and his Heirs during his own life, this had been void; but it was held other∣wise for a strangers life, and no occupancy can be of a rent.

CHappell versus Whitlock, Mich. 6. Jac. rotulo, 1316. The que∣stion was upon a liberty in the deed to make Leases, provided * 1.436 they shall not exceed the number of three lives, or twenty and one years, and the lease was made for 80. years, if two live so long; if he make a Lease absolute, it must not be above twenty and one years, but in this case it is uncertain.

MAnning versus Camb, Pasch. 7. Jacobi rotulo, 341. in Replevin, the Defendant avows damage fesant by reason of a devise * 1.437 made to the Advowant by will for one and twenty years, by one Loc∣kyer, who was seised of the Land in fee: The Plaintiff saith, that true it is, that Lockyer was seised in fee of the Land in question, and by the said Will devised the Land to the said D. for the said years, in confidence only to the use of it, if she should remain unmarried, and afterwards, and before the taking, dyed thereof, seised J. L. being then Sonne and Heir of the said Lockyer, after whose death the Land descended to the said J. as Son and Heir, &c. after whose death the Legatees entred into the Land, and were thereof possessed to the use and confidence above said, the reversion belonging to the said J. L. And the woman took Manning to her Husband; by reason wherof, the said term devised by the said L. to the said A. and J. to the use and confidence above-said, ended the said being under the age of 14. years, to wit, of the age of two years, by reason whereof the custody of the Heir did belong to the Husband and Wife, by reason whereof they seised the Heir, and entred into the Land, and maintained their count; the Defendant confessed the Will, and the devise for years, in confidence: and further, that after the term he devised the Land to his sonne in fee, and a demurrer. The condition must go to the estate, and not to the use.

COuper versus Fisher, Trin. 6. Iac. rotulo 513. The Defendant as Administrator of Foster, advows for rent reserved upon a Feof∣ment made in fee of the Mannor, reserving rent in fee to the Feoffer,

in the name of a Fee-farm-rent, with a clause of Distress for the not * 1.438 paying of it, and that the rent did desend to the issue of the Feof∣fer. And for the rent due to the Heir, the Feoffer in his life advows the Plaintiff in his barre to the Advowry, saith; that neither the inte∣state nor his Ancestors, nor any other whose estate the said T. hath in the rent were ever seised of the same rent within forty years then last past before the taking, &c. And a demurrer pretending that he ought to alledg seisen in the Advoury with forty years: And it was held by the whole Court that the seisin is not to be alledged being it was by deed made within the time of prescription; neither is the sei∣sin but where the seisin is traversable, there it must be alledged, and in no other case, and the Judgment was given for the Advowant.

Mich. 8. Jacobi. An Advowry was made for an amerciament in a * 1.439 Court leet, and shews that he was seised of the Mannor in Fee, and that he and all, &c. have had a Court leet, and the Plaintif traverses that he was seised of the Mannor in Fee: and the Court held. If the De∣fendant had a reputed Mannor, it would maintain the Avowry, though he had indeed no Mannor in truth.

REynolds versus Oakley. The Defendant avows for rent reserved * 1.440 upon a lease for life, and the Plaintiff shews that the place in which &c. did adjoyn to the close of the Plaintiff, and that the Cat∣tell against the Plaintiffs will did escape into the other close, and that he did presently follow the Cattell; and before he could drive them out of the close, the Defendant did distrain the Plaintiff's Beasts: And whether the Distress were lawfull or not, was the question. And the Court held in this case, because the Beasts were always in the Plaintif's possession, and in his view, the Plaintiff would not distrein the Cattell of a stranger; but if he had permitted the Beasts to have remained there by any space of time, though they had not been le∣vant and couchant, the Lessor might have distreyned the Beast of a stranger.

BLown versus Ayer, Hill. 40. Eliz. rotulo, 1610. In a Replevin the question was upon these words, to wit, the said Abbot and Covent granted to the said R. that he and his Assigns, Fierboot, Cart∣boot, and Plowboot, sufficient by the appointment, &c. without ma∣king wast under the penalty of forfeiting the devise, whether those words make a condition or no, and by the whole Court held to be a condition, but Judgment was given for the Plaintiff for doublenesse in the plea.

BRown versus Dunri, Hill. 15. Iac. rotulo, 1819. The Defendant made cognizance &c. as Bailiff, M. Walker, Widow, Administra∣tor, &c. R. W. for one rent charge of 6 l. granted by one Warner * 1.441 to the said R. and M. his wife for life of the VVife. And the said R. by the said writing granted, &c. That if it should happen the said yearly Rent to be behind, and not paid in part, or in all by the space of ten dayes next after any Feast, &c. being lawfully demanded, that then, &c. the said Warner, &c. ten shillings, nomine paene, for every default, and that then it should be lawfull to the said W. and M. and their Assigns, to enter into the premises, and distrain as well for the rent as for the nomine paene, and shews that the rent was behind in the life of the Husband, and that he dyed intestate, and that administrati∣on was committed to the woman, and made cognisance for the rent due at such a Feast in the life of the Husband, and being then behind, and the issue was, that the Grantor was not seised: and after a tryall diverse exceptions were taken; one was for that a demand was not al∣ledged; another was, that the cognisance was made as Bailifle to the Administrator, when as the woman by the survivorship should have the rent. Another was, that it is not alledged that the rent was be∣hind by ten dayes next after the Feast, and the exceptions upon de∣bate at diverse dayes were over-ruled. First, the demand is not neces∣sary, for the Distress is a sufficient demand, as it was adjudged in Iaces case: The second was, because the cognisance as Administrator are void, idle, and superfluous: and for the ten dayes it was good, be∣cause that predicto tempore quo, &c. It was behind, and adjudged by the whole Court for the Advowant.

SLoper versus Alen, Trin. 15. Jac. rotulo, 3002. Replevin upon the taking of 40. Sheep; the issue was, that the Sheep were not levant and couchant, and found by a speciall verdit that twenty Sheep were levant and couchant, and that twenty Sheep were not levant * 1.442 and couchant: and it was held upon the reading of the Record, that the Plaintiff should have his Judgment.

BƲrton versus Cony, Hill. 16. Iac. rotulo, 2044. The Defendant * 1.443 avows for a rent charge granted to him for life by his Father, is∣suing out of all his Lands in such a Town, to have and to hold, to le∣vy, and yearly to take the said annuity or annuall rent of &c. during the naturall life of the said P. at two Feasts in the year, to wit, &c. by equall portions: the first payment to be made at the first and next Feast of the said Feasts, which should next happen after the term of 8. years ended and determined, specified and declared in the said will. And if it should happen, &c. And averres in the avowry, that there is not any term of years specified and declared in the said Testament

before recited. And note, that in the premises of the Deed it is re∣cited thus in fulfilling the Will or Testament of me the said T. bear∣ing date such a date I have given, &c. And the Court held that the grant was present if no term was contained in the will, and Judgment was given for the Advowant. But after Judgment was entred upon Record, an exception was taken, because it was not averred that the Grantor was dead: and it was allowed for a good exception, but it came to late judgment being entred.

HEyden versus Godsulm. Judgment for the Defendant who avow∣ed * 1.444 for rent reserved upon a Lease for years: and it was moved that the Plaintiff who brought the writ of Errour upon that Judg∣ment ought to find bayle upon the writ of Errour by the Statute of 3. Iacobi, and it was held by the greater number of the Judges that the Plaintiffe should not find bayle for Replevins are not within the Statute.

TƲrny versus Darnes, Trin. 17. Iac. rotulo, 2887. Demurrer in a replevin upon a traverse of Lands, when as the parties have not a∣greed of the quantity of Land. The Avowry was that C. was seised of one Messuage, two Barns, one Mill, &c. and 100. acres of Land, with the appurtenances in W. and held them of &c. by fealty & rent, &c. and suit of Court, &c. And the Plaintiff prayed in aide, and he joyned, and alledges that he was seised of 70. acres of Land with the appurtenances in his demesne as of Fee, and held them of G. by feal∣ty and rent, &c. and suit of Court, and traverses that he held the Tenements of the said G. as if his Mannor of W. in manner and form as &c. and a speciall demurrer: and one cause was, because he denies not the seisin of the said services, but only denies and traverses the te∣nure, and therefore they pretended that the plea contained double matter, and was a negative pregnant, and secondly, whether the Seisin or Tenure be traversable, and the Plea was held good by Hub∣berd and Warburton.

RIchards versus Young, Trin. 16 Jacobi rotulo 104. vel 1700. * 1.445 A Replevin brought for taking of Cattel at Aller, in a certain place called Land Mead, the Defendant avows as Bailiff of Sir John Davies the Kings Serjeant, containing four Acres for damage fesant, the Plaintiff pleads in Barr, that Henry Tearl of Hunt. was seised of the Mannor of Aller, whereof one Messuage, &c. was parcell, and customary Land, and devisable by Copy of Court Roll, and that within the said Mannor there was a Custome that every custo∣mary Tenant of the said Messuage hath been used to have Com∣mon of Pasture in the said place called Land Mead, rhe Issue was with∣out

that, that within the said Mannour, with the appurtenances whereof, &c. is, and time out of mind, was a custome that every cu∣stomary Tenant of the laid Messuage &c. had Common of pasture in manner and form, &c. and Serjeant Harris moved in Arrest of Judgment, that there was no custome alledged, because it did not ap∣pear in the pleading, that the place where the taking was supposed to be was within the said Mannor, and no custome of the Mannor, could extend forth of the Mannor, but he ought to prescribe in the Man∣nor, and note he ought to have pleaded, that the place in which, &c. was parcell of the Mannor, and then the Plea had been good.

In a Replevin upon an Avowry for Rent, the Plaintiff for part * 1.446 pleadeth, payment, for the other part an Accord, the one Issue is found for the Paintiff, and the other for the Defendant, the Plaintiff shallre∣cover his costs and damages, and the Defend. shall have Judgement of Return habend. and no costs and damages, I think otherwise it is, if the Avowries be severall, then on both sides they shall recover costs, and dammages.

LEe versus Edwards, Trin. 19 Jacobi rotulo, 470. The Case was * 1.447 in Replevin, a Copy-holder claims Common in another mans Land, & the Lord infeofleth the Copy-holder of his Copy-hold Land, whether he hath now lost his Common, and held that he had, but if a Copy-holder hath Common in the Lords waste, and the Lord inseof∣eth him, of the Copy hold with all Commons, the Common is not gone.

Oabel versus Perrot, Hill. 9 Jacobi rotulo 2734. Tenant in Tail * 1.448 hath power to make a Lease for 89 years, if three persons live so long, and reserving the old Rent due, and payable yearly, and he maketh a grant in Reversion for years, and whether that be good or no was the Question, there being a Lease for life in possession, the second Lease was for 89 years, if three live so long, for the matter in Law, the Court held the Lease good, but for want of an averment of the life of, &c. the Plea was not good.

ROberts versus Young, Hill. 9 Jacobi routlo 1835. the Defendant * 1.449 in a Replevin pleads that he offered amends, and doth not shew that he offered it before the impounding of the Cattle, and adjud∣ged an ill Plea, and the offer of amends cannot be made to him that maketh cognisance.

BAcon versus Palmer. Trin. 12 Jacobi rotulo 3947. A Copy-hol∣der * 1.450 in Replevin prescribes to have Common of pasture appurte nant to the Copy-hold, the other party, pleads an Extinguishment of Common, because the Lord had inclosed Land, lying in another field in which field, and in the other field, the Lord had Common by cause of vicinage, and note that in Common for cause of vicinage, if one in∣close part, it is an extinguishment of all the Common.

SHarp versus Emerson, Mich. 12. Jacobi. The Defendant makes avowry for Homage, Fealty and Rent, the Plaintiff prayes in aid, * 1.451 and hath a Summmons in aid, and at the return of the Summons, the Prayee in aid was Essoined, and after the Ession, the Defendant mo∣ved the Court, that the Homage might be put out of the Avowry, which was entred with by consent of parties, was raised out of the Will.

ARundell versus Blanchard and Jackson, Pasch. 13 Jacobi rotulo * 1.452 2037. The taking in Replevin was supposed to be at Southwark, and one of the Defendant pleads non cepit, and the other Bailiff of the Governors of the possessions, revenues, and good of the Free-Grammar-School of &c. for the Parishoners for the Parish of Saint Olaves, in Southwark, in the County of Surrey, and the Advowry was made for damage fesant, the Plaintiff prescribed for a way be∣longing to his house, in the Parish of Saint Olaves in Southwark, and the Venire facias was of Southwark, in the Parish of Saint Olaves in Southwark, and exception taken to that, and held good, because one Defendant had pleaded non cepit, and another exception was, be∣cause he had not shewed when the Corporation begun, and held an i∣dle exception, for one need not shew when they were incorporated, another exception was, because the name of one of the Jury was mi∣staken, because in the Return of the Venire it was to Lisney of Croydon, and in the Pannell of the Habeas Corpus, it was written to John Lisney of Croydon, and because in sound it is all one, and the Sheriff made oath, that he was the man, that was returned, in the Venire facias the Return was amended in Court, and Judgement gi∣ven by the whole Court for the Plaintiff.

PAin versus Mascall. Hill. 12 Jacobi. rotulo 3400. The Lord a∣vows * 1.453 the taking of one Mare, as for Rent behind, so for the fourth part of a Releif, and doth not expresse the same due for the releif, and for the Rent, the Plaintiff pleads tender, and demurres for the Releif, because he had not expressed the same, and because he had distrained one thing for the Rent, and Releif, pretending that if one cause

passe against him, and another for the Avowant, that he could not have a Return habend. but the Court were of a contrary opinion, but if two men shall distrain one and the same Mare for two severall causes, and one hath Judgment for himselfe, and the other for himselfe. In this case no return habend. can be made of the Mare,

BRown versus Goldsmith, Trin. 13. Jacobi rotulo, 607. A Court of * 1.454 Pipowders is incident to a Fine, and a Court Baron to a Mannor: And a Court Baron cannot be separated from a Mannor; for it is a wealth to a Mannor: the like of a Court of Pipowder to a Fair by the grant of a Mannor with cum pertinencijs the Court passes; for it is an incident inseparable to the Mannor, and a man cannot grant his Court but he may grant the profits of his Court.

MAgistri & socij Collegij Emanuel is in Cambridg. The writ was adjudged naught in replevin, because they had distrayned in their proper names for a Corporation: as Maior and Comonalty can∣not distrain in their own persons but by their Bayliff. The Court held * 1.455 that the Sheriff could not take a Bond in replevin, but must take pled∣ges according to the old custome.

JƲid versus Bungory, Trin. 8. Jac. rotulo, 3059. The Defendant shews that one was seised of Land in fee, and held it by Knights ser∣vice of a Mannor, and for the rent of two Cocks and two Hens: and the Lord grants the third part of the Mannor to another, who avows * 1.456 for the seruice, and the Cocks and Hens, and held he could not alone avow for that joynt service, but the other should joyn with him.

WEnden versus Snigg, Trin. 11. Jac. rotulo, 1137. In replevin * 1.457 the question was upon a Lease for life made to three, to have and to hold to them the said A. B. and C. and every of them for the term of their lives, and the longest liver of them successively one after another as they are writ in order. And the question was, whether this was a remainder or no, and it was held to be a remainder upon the reading of the Record: but if the grant had been only successive∣ly, not saying as they are named in the writing, it had been naught because he could not tell who should begin.

THorold versus Hadden. Trin. 11. Jac rotulc, 451. In replevin a * 1.458 Juror was returned by the name of Payly, and in the distress the name was T. P. and in the Pannell he was written Baily, and tryed by that name of Baily, and moved in arrest of Judgment for the mistak∣ing of the name. And the Court held, that if the right name was sworn, yet notwithstanding the mistake it was good; for if the name

in venire was not mistaken, all was good, and the Sheriff ought to a∣mend his misprision: and the Court demanded if any one could swear that Paly was sworn; and one then present in Court made oath that Paly was sworn: and the Court ordered that it should be amended, and Judgment was given for the Plaintiff; every Leet was derived out of the Sherifs turn.

PAul versus Barwicke, Hill. 11. Jac. rotulo, 2147. A stranger in re∣plevin pleaded non est factum, where he should have pleaded non concessit, and good after a verdict, though it's not formall pleading.

REad versus How. In replevin the place was omitted in the Decla∣ration, and the Defendant demurred and held a good cause; for the Plaintiff is bound to take notice where the Cattell are distrai∣ned; a man cannot distrain for a rent charge but in the day time, be∣cause I may take notice where it is, because the Law presumeth that I or my servants are all the day upon the ground. A second deliverance must not vary in the place; a disclaimer goeth to the locus in quo, &c.

HYnd versus Wainman, & al. Pasch. 8. Jacobi rotulo, 758. Wain∣man pleaded non cepit, and the other made cognisance as Bayliff to Wainman. The Plaintiff pleads, that the parties to the Fine had no∣thing, * 1.459 &c. and it was tryed Mich. and Jacobi, and it was moved by the Councell of the Defendant, that the Plaintiff should prove an a∣ctuall taking: but the Court held the contrary. And the Judges said, that if one takes Cattell as Bayliffe to another, and by his command, this shall be adjudged to be the taking of the Master as of a Bayliff in trespasse.

FRancis versus Forrest, Trin. 9. Jacobi rotulo, 2033. In replevin for the taking of Cattell at A. in a certain place called R. the Defend∣ant avows dammage fesant; the Plaintif in his Barre saies, that he was seised of one Messuage, &c. in C. in the Parish of A. and prescribes for common: And after a tryall it was moved in Arrest of Judgement, that the venire facias was ill awarded because it was of A. only: and so it was adjudged by the Court. And Cook said, that at C. or in C. imply a Village, and therefore he said, the venire facias ought to have been of C. and A. or at least of the Parish of A. and Brownlow chief Prothonotary agreed to this.

RIchardson versus Sterer, Trin. 13. Jacobi rotulo 786. In Replevin the Defendant avows for Damage fesant. The Plantiffe replies that long before the time of taking the Cattell, H. late Earl of L. was seised of one Messuage. &c. and so prescribes for Common of Pasture for ten Beasts, and so justifies the putting in of one Cow of the two Cowsusing his Common. And the Plaintiffe further saies that the said W. R. long before, &c. lent to the said T. P. the other Cow to manure the Land of the said T. P. as long as the said W. pleased; And so prescribes for the putting in of that Cow being thereof possessed by reason of the lending of it, and so demands Judgement. And Hutton Sar••eant moved that the Barr was naught, because the Plain∣tiffe had falfified his Replication, because the Replication is by two, and by the pleading another time of the taking the property was in P. only▪ and the speciall property by verture of the lending was also in P. And so Replevin ought to have been brought in the name of P. onely, and the Defendant demurred the Replication, and the Plaintiffe was non suit.

POpe versus Shurm Hill. 7 Jacobi rotulo 336. The Defendant avows Damage fesant. The Plaintiffe claims Common by reason of a Demise made to him by one H. W. who was seised in Fee of one Mes∣suage and Common for him, his Tenants and Farmers, &c. And al∣ledges one Lease made the thirtieth of March 11. to have, and to hold, &c. from the Feast, &c. then last past for one yeer, and so from yeer to yeer, &c. The Defendant traverses the Demise, and the Jury finde that the said H. W. before the said time of the taking, to wit, the 25 of March, Anno 11. did demise to have for one yeer then next following, and so from yeer to yeer, and this found specially. And Judgement was given for the Plaintiffe, because the matter in que∣stion was whether he had right of Common, or not, and not the title of the Lease, and it appears by the Jury that he had just right of Common. And Warburton put this difference, if a Tenant brings an Action of Trespasse wherefore by force of Arms, &c. against his Lord; And the Lord pleads that the Defendant holds by such services, and Issue be taken upon it; And the Jury finde that he holds by other ser∣vices, the Verdict is sufficiently found for the Lord, because the Plain∣tiffe could not maintain an Action against his Lord.

IOhnson versus Thorowgood Trin. 12 Iacobi rotulo 1734. In Replevin the Plaintiffe allows damage fesant, the Plaintiffe claims Common by prescription to, when the Fields called F. and C lye fallow all the time of the year. And when the Fields are sowed after the Corn, &c. After the Feast of Pentecost. they used, &c. And the Jury found that he had Common to wit, when the Feilds lye fallow every year,

all the time of the year. And when the Fields were sowen, they used to have Common, &c. And it was held by Nicholls that for Com∣mon Appendant it is not necessary to prescribe, but to say he is seised of one Messuage, &c. in Fee; and that he hath Common of Pasture in the said place, as belonging and appertaining to the Tenement. And saies further, that Judgment ought to be given for the Plaintiffe, be∣cause it appeared by the Record, that the Defendant took the Cat∣tle at such time as the Plaintiffe ought to have Common. And there∣fore Nicholls said, that if a man have Common for great Cattell and Sheep, and the Sheep be taken, and he prescribes that he hath Com∣mon for Sheep only; and the Jury said Common for Sheep and great Cattel, the Common is found for the Plaintiffe. And the like if one claim Common all the time of the year, when the Land lyes fallow, and when it is sowen, from such a day unto, &c. And his Cattel are taken in the year when it is sowen as lies fallow, it is sufficient for the Plaintiffe to prescribe for Common, either in the year when it is sowen, or when it lies fallow. And if the Jury find all the Common, it is sufficiently found for the Plaintiffe. The like if a man hath Com∣mon from such a day to such day, and the Cattell are taken, and a day between the dayes, and he prescribes that he hath Common in the said time, quo, &c And the Jury find he had Common before that time the same day, and after the Verdict is found for the Plain∣tiffe, and Warburton and Winch of the same opinion.

PIts versus James, Mich. 12. Jacobi rotulo 2155. Upon a speciall Ver∣dict for the Misnomer of a Corporation. The first question was, whether the foundation of poore men to pray for Souls departed is within the Statute of Chaunterys: and secondly, for the Misnomer: And Winch: held that the Plaintiffe should not be barred for the Mis∣nomer; and for the second he held that his house was within the Statute of Chaunterys, and so the interest in the King, H. 6. And so the Lease made by the Master of the Hospitall void. Dyer 246. 287. And Warburton held the Plaintiffe should be barred upon both points.

SWynerton versus Mills, Hill. 14 Jacobi rotulo 2049. In a Replevin the Defendant a vows for a rent charge reserved by a Copiholder who * 1.460 is seised in Fee, and made a Lease by the license of the Lord, reser∣ving Rent at foure Feasts, or within one and twenty days, being lawfully demanded, and afterwards the Copiholder surrendred one moity in Fee to a stranger, and afterwards surrendred the reversion of the other moity to another, to which the Termer atturned, and so avowed for Rent. The Plaintiffe pleaded in Bar•• that he was seised of a Close adjoyning to the place, in which, &c. and put therein his Cattell, and that they escaped by fault of inclosure, and issue taken

upon that. And after a Verdict by default those exceptions were ta∣ken to the Avowry in Arrest of Judgement. First, because it appeared by the Advowry that the Copiholder had surrendred a Reversion, which could not be, because a Copiholder is a Tenant at will, and so could not have a reversion; for he cannot make a Lease for yeers without the license of the Lord, but this exception was over-ruled by the Cou••t. Secondly, because there was no Atturnment alledged in the first surrender. And it was held no exception, because the Rent for which he avowed was reserved by the Copiholder by the second surrender, to which the Termer had atturned. And also the Court said, that an Atturnment is not necessary for a Copiholder, because there is no time when the Terme should atturn. For before the surrender he cannot atturn; and after the surrender and admit∣tance it is too late. And the Copihold estate is like an estate raised by uses or devise, in which an Atturnment is not necessary. As also in an estate raised by Fine, and the like, an Atturnment is not necessa∣rie, for if the Termer will not atturn, he is compellable by Law, as by a Quid juris clamat: but a Copiholder hath no means to make the Termer atturn if he refuse. And thirdly in the conclusion of the Ad∣vowry, he doth not say that the Rent was behind such a day, and one and twenty dayes after at least; and this exception was disal∣lowed, because the distresse is a sufficient demand of the Rent; and it appears that the day of the taking of the distresse was one and twen∣tie dayes after the Feast, at which the Rent was due, and Judgment was given for the Advowant: and note, that a Covenant to distrain is idle, for a man may distrain of common right.

HOwell versus Sambay, Mich. 13 Jacobi rotulo 2009. In Replevin, the * 1.461 Defendant a vows for a Rent charge, and a Nomine pene grant∣ed by Tenant in tail generall, and one Fine levied afterwards, and the use expressed: the Plaintiffe replies, and saies that the Grantor had only an interest for life, and so makes inducement, and traverses the use of the Fine. The Defendant demurrs; And held by the Court that the Grantee was not seised in tail, nor to the use of the Fine. And it was said, that in this case, that it was necessary for the Ad∣vowant to plead the Fine with the estate tail; for if the Tenant in tail grant a Rent charge, and dye, no Fine being levied, and the estate tail discends, the issue in tail is not chargable with the Rent. And note, the Advowry was as well for the Rent as for the Nomine pene, and no speciall demand was alledged in pleading the Rent: and it was adjudged by the Court a naughty advowry as to the Nomine pene, but good for the Rent, as it hath been adjudged in one Mild∣maies Case.

COtterell versus Harrington, Pasch. 6. Jacobi rotulo 545. In a Replevin the Defendant avows for an Annuity for 20 d. granted for yeers payable upon demand, and alledges a demand; the Plaintiffe de∣mands either of the Deed, and by the Deed it appeared that for a hundred and ten pound one Rent of twenty pound was granted for eight yeers, and another for 20 l. for two yeers, if E. R. and T. should so long live: the Plaintiffe pleads the Statute of Usury, and sets forth the Statute, and a speciall usurious Contract. If it had been layed to be upon a loan of Money, then it was Usury; but if it be a bargain an Annuity it is no usury. But this was alledged to be upon a lending

VVOod versus Moreton Hill, 6 Jacobi, rotulo 1802. In Replevin the Defendant advows to have Common Appendant out to his house and Land, the Plaintiffe saith, that he had Common Appendant to his House and Land. And the Defendant to avoid the Common saith, that the Commoner sold to the Plaintiffe, five Acres of the Land, to which the Common is appendant, pretending that he should not have Common for that Land, being but parcell of the Land to which the Common was appendant, Common Ap∣purtenant cannot be to a House alone, purchasing of part of Com∣mon Appendant, doth not extinguish the Common, otherwise it is of Common Appurtenant. And it was pretended to be Common Appurtenant, because it is to a House and Land, whether by seve∣rance his Common is gone, and held to be common Appendant, and Judgment given for the Plaintiffe.

MOrse versus Well. Replevin for Common of Pasture, the casewas that the Father was seised of two yard Land with Appurte∣nances, * 1.462 and had Common of Pasture, for four rother Beasts, three Horses, and sixty Sheep, and he demised part of the said two yard Lands in being. And whether the Common should be apportioned, and if it should be apportioned whether the Prescription failed, be∣cause the issue was taken, that he and all those, &c. had Common in the said two yard Land, A Release of Common in one Acre, is a Re∣lease of all. If I have Common Appurtenant, and purchase part, the Common is gone, but otherwise it is of Common Appendant. And note: this Common was Common Appendant, and the purchasing of Common Appendant, doth not extinguish the Common, and Judg∣ment was given for the Commoner by the whole Court.

HƲghes versus Crowther, Trin. 6 Jacobi. rotulo 2220. In a Replevin a Lease for years made to Charles H. and the said A. T. to have * 1.463 and to hold from, &c. for sixty years if they live so long, Charles dy∣ed,

in this case Judgment was given, that the Lease was ended by the death of Charles, but otherwise it had been if it had been for life.

BIcknall versus Tucker, Trin. 9 Jacobi rotulo 3648. in a Replevin the case was, whether a Fine with five years will bind the Copy-hol∣der * 1.464 in remainder, there was a Copy-hold granted to three for lives, to have and to hold successively, the first had the Free hold granted to him, by the Lord of the Mannor. And then he leavied a Fine and five years passe, whether he in the Remainder be Barred or no, those whose estates are turned to rights, either present or future, are meant by the Statute, to be barred of a Copy-hold for years, be put out of possession, and a Fine Leavied and no entry by him, he is barred by the Statute, by the Bargain and Sale, he in the Remainder is not put out of possession, if a man make a Lease to begin at Easter next, and before Easter a Fine is leavied: and five years passe, this Fine will not barr, because at the Leavying of the Fine he could not enter, for then his right was future, if the Lease had been in possession, and the Lessee had never entered he had been barred. A Lease for years, Remainder for years, if the first man taketh for life, the first estate is not so deter∣mined but that the Remainder standeth, if a Copy-hold surrender for life, there passeth no more from him then so much as maketh the estate and no more, and the rest remaineth in him.

CRantley versus Kingswel, Pacsb. 15 Jacobi rotulo 710. The Defendant makes cognisance as Bailiff of Kingswell his Father for Rent, ser∣vice * 1.465 due to his Father at such a Feast. And shews that Cramley holds of him by fealty, and rent paiable at such a Feast, and for Rent due at such a Feast made Cognisance, the Plaintiffe in Barr saies, that he at the said Feast offered the Rent upon the Land, and that no body was there to receive it. And the Plaintiffe saith, that afterwards he demanded the Rent upon the Land, and the Plaintffe made a Reple∣vin, pretending the Lord should make a personall demand, but the whole Court was against him. And Warburton took acception against the pleading the Tender, because he saith that he offered the Rent to pay, when as he was not present. And the question was, whether the Lord for a Rent service, did not demand it at that day whether he can distrain without a demand of the person, and held he might, for the Tenant is yet bound to tender, and the Land is debter, and the Lord may resort thither, when he pleases to demand the Rent up∣on the Land, but if he tender his Homage, and the Lord refuses it, he cannot distrain without a demand of the Person, and Judgment for the Defendant.

STokes versus Winter, Trin. 15. Jacobi rotulo 2242. In Replevin, the De∣fendant makes cognisance as Bayliff to Tenant for life, to whom the Annuity was granted for life, to begin by will, after the death of the devisor; And alledges the death of the devisor, but not the day of the death: after whose death the said H. was seised of the yeerly rent aforesaid in his demesn, as of his Free-hold for terme of his life, by vertue of the devise aforesaid. And because seven pounds of the Rent aforesaid, for one yeer, ended at the Feast, &c. and by the space of 14. dayes then next following were behinde to the said T. the said time, with, &c. the said T. as Bayliffe of the said H. doth make cognisance of the taking of the cattell aforesaid in the said place, in which, &c. for the said 7 li. for the yeerly Rent aforesaid being so behind, &c. and issue was taken whether the said I. at the time of his death was seised of the said six Acres of Land in his demesne as of Fee, as, &c. And after tryall exception was taken to the Advowry, because it was not alledged that the annuity at such a Feast, after the death of the devisor was behinde, but it was over-ruled, because there is so much expressed, and Judgment given for the Defendant.

HƲmfrey versus Powell, Trin. 12. Jacobi rotulo 2791. Replevin, where∣in the Defendant avows for one Annuity granted to the Defen∣dant, to whom the office of Catorship of the Church of Roffen in Kent was granted by the D••an and Chapter of that Church for life, with an Annuity of 6. pounds for the exercising of that Office, with a clause of distresse, by vertue of which grant he was possessed, and avowes for the Annuity, and avers that it was an ancient Office pertaining to the Dean and Chapter of Roffen: and doth not aver that the Annuity was an ancient Annuity. The Defendant pleads the Statute of the 13 Eliz: that all Devises, Donations, Grants, &c. made by any Master, and Fellows of any Colledge, Dean and Chapter, &c. other then for the terme of twenty and one yeers, or three lives from the time of this Devise, &c. should be totally void. And shews that the old Dean died, and another was elected; And a Demurrer thereupon; And Judge∣ment that the Grant was void.

HYen versus Gerrard, Mich. 13. Jacobi rotulo 752. The Defendant in Replevin avows, that one being seised in Fee made a Lease to him, and avows for Damage feasant. The Plaintiffe in Barr pleads, and maintains his Declaration, and traverses the Lease upon the Avow∣ant, demurrs, and adjudged a goodtraverse.

IEnyx versus Applefourth, Trin. 17. Eliz: rotulo 543. The Defendant avows for a Rent charge, the Plaintiffe in Barr pleads that the De∣fendant had presented a Writ of Annuity, And that he had an Impar∣lance

thereunto; And demands Judgement, if the Defendant did well make cognisance to the taking of the cattell in the said place, in which, &c. in name of a distresse for the rent aforesaid, by vertue of the said writing, as Bayliffe of the said R. the said Writ of Annuity being prosecuted, &c. upon the said writing, in form aforesaid, &c. And a Demurrer thereupon, and Judgement by the whole Court for the Plaintiffe; it is not needfull to lay a prescription to distrain for an Amerciament in a Court Leet, but it is otherwise for an Amerciament in a Court Baron, by the whole Court.

DArcy versus Langton. The Defendant avows for a Rent charge, and for a Nomine penae, and no mention made in the Avowry of the Rent charge, and the Plaintiffe was non-suit, and afterwards in Arrest of Judgement this matter was alledged, and at first held to be a good exception; but afterwards Judgement was entred, an Advow∣ry is in the nature of a Declaration, if that be vitious no Judgement can be given for the Advowant.

TRin. 9. Jacobi Regis, rotulo 2033. Replevin for the taking of Cattell at Andover, in a certain place there called R▪ The Defendant makes cognisance for damage feasant: the Plaintiffe saies, that he was seised of the Messuage, &c. in C. in the Parish of A to which he claim∣ed Common of Pasture. And issue taken upon the prescription, and a Venire Facias of A. and exception taken, because it was not tryed of C. and A. or of the Parish of A. but it was adjudged to be good.

TRinbone versus Smith, Trin. 12. Jacobi rotulo 626. In Replevin, foure * 1.466 and twenty were returned upon the Venire facias, and upon the Habeas Corpus, onely twenty and three were returned, and the Jury did not appear full, and a Tales was awarded, and tried for the Plaintiffe, and good, because the Venire Facias was returned full.

PIgott versus Pigott, Mich 20 Jacobi. In Replevin, Avowry that Ellen En∣derby was seised in Fee, of three Acres in Dale, and took to Hus∣band S. Pigott, and had Issue Tho: Ellen dyed, and the husband was in by the Curtesie, the Husband and Tho: the Heir, granted a Rent of 10. 〈◊〉〈◊〉. issuing out of the three Acres to the Avowant, and avows for so much behind, the Plaintiffe in barrsayes, that before Ellen had any estate, one Fisher was seised in Fee, and gave it to John E. in tayl, Jo: had issue Ellen, who after the death of her Father, entred and was seised in tayl, and took a Husband, as is before declared. And had Issue Tho: and that Tho. Tenant by the Curtesie living, grants the Rent as above without this, that Ellen was seised in Fee of three Acres, and issue was joyned thereupon, and found for the Avowant. And in arrest

of Judgment it was objected, that in effect there was no issue joyned. For the traverse of the sesin of Ellen E. was idle, for no title of the Rent is derived from her, but they ought to have traversed the seisin of Thomas the grantor, and then the Issue had been of such a nature, that it had made an end of the matter in question, which was not in this case, no more then if the Tenant in Formulen should plead not guilty, but the Court held that though an apter issue might have been taken, and that the traverse is not good, yet it was helped by the statute of Jeofailes. For the estate of Ellen H. was in a sort by cir∣cumstance materiall. For if she were seised in tayl, and that estate tayl, discended to Thomas the grantor, then by his death the Rent is determined after the Fee discended to Tho: from Ellen, there the estate was of that nature, that he might grant a sufficient rent charge. And although it might well be presumed, that Thomas after the Fee discended to him from Ellen had altred such estate tayl, yet by Po∣pham the Courts shal not now intend that, because the parties doubt∣ed nothing, but whether Ellen was seised in Fee or not when he dyed, And that doubt is resolved by the Verdict, as if a Defendant should plead a D••ed, of J. S, to A. and B. and that it dyed, and B. survived and infeoffed the Defendant, if the Plaintiffe should say that J. S. did not infeoffe A. and that they should be at issue upon that, and should be found against him, although this be no apt issue yet it is helped by the statute, because the parties doubted of nothing, but of the manner of the feoffment of J. S. whether it was made to A: or not, and of the same opinion was Fennor, Yelverton, and Williams. but not Gandy.

CRate versus Moore, Mich. 3. Jacobi. In Replevin of Cattell taken in D. the Defendant avowes as Bayliffe of H. Finch, And the case was thus, the Lady Finch Mother of H. Finch, granted a Rent charge to H. issuing out of her Mannor of N. and out of all her Lands in D. E. and is in the County of Kent, belonging or appeartaining to the said Mannor▪ And the Plaintiffe to barr, the Defendant pleads an abatement in H. Finch into the Lands in D. And upon the Defen∣dant demurrs for the Lands in D. were not belonging or appertain∣ing to the Mannor of N. and adjudged for the Defendant. For no Land can be charged by that grant, if it be not belonging to the Mannor. And that for two Reasons, the first is because by the word (aut alibi) it appears that it is all but one sentence, and the (Aut) con∣joynes the words proceeding to wit, all the Lands in D. S. and to put in the County of Kent in these words following, to wit (alibi) in the said County to the said Mannor appertaining, and the sentence is not perfect untill you come to the last words, (to the said. Mannor appertaining) for if the Rent be issuing out of the Land in D. &c.

which is not appertaining to the Mannor, then the sentence must be perfect, and these words (County of Kent, and these (aut alibi) must begin a new sentence: which was never seen, that they should make the beginning of a sentence. And therefore this case is not like the case between Bacon and Baker, second of King James, in the prohibi∣tion, where Queen Eliz. grants all her ••ith Hay, &c. within the li∣berty and precincts of St. Edmonds Bury, belonging and appertaining to the said Monastery, and which were lately collected by the Almo∣ner of the said Monastery; for there the latter sentence is perfect and compleat: And these words (in the County of Suffolke) and the nec non that ensues are a new sentence: And therefore the last clause (And which by the Almoner, &c. goe only to the Tiths following the (nec non) and not to the Tiths contained in the first clause: but it had been otherwise if the (nec non) had been (unacum) as in truth the pa∣tent was, but it was mispleaded; for then the (unacum) would have reinjoyned all, and made it but one sentence. The second reason was, in respect of the nature of the thing granted, which was but a rent. And therefore, if rent be granted out of a Mannor, to be perceived, and taken out of one acre, this shall be good: and nothing shall be charged but that one acre only, 17. Ass. but otherwise it is of Land for a Feofment of a Mannor. To have &c. one acre it is a void ha∣bend. For here it appears, that the intent of the Lady Finch was on∣ly to charge the Mannor, and such Land only which were appertain∣ing to the Mannor: But Popham held the contrary, for he conceived that D. S. and W. in the County of Kent were particularly named and bounded in by the name of the place and County, and therefore they should be charged, although they were not appertaining to the Mannor. As if a man grants all his Lands in D. R. and Ʋ. in the County of M. and in Darn in the same County which he hath by dis∣cent, it should only extend to Darn, but denyed by the Court, but he was strongly of that opinion. And he held that by the first of the charge out of the Mannor; all the Lands parcell or appertaining to the Mannor are charged, and therefore the subsequent words if they should be limited, as is above-said, would be idle and frivolous. And Yelverton said, that the words before belonging or appertaining, shall be taken to extend to the Land occupied in the Mannor, although it is not parcell of it, and Fenwood and Willams granted, and Judg∣ment was given that the Defendant should have a return habend.

TOtt versus Ingram, Trin. 4. Jac. In a replevin brought by T. a∣gainst I. who makes conisance as Bailiff of Sir Ed. Br. for a com∣mon Fine which was assessed upon the Plaintiff who was resident with∣in the Leet of his Master: The Plaintiff replies, that Sir Edw. by his deed had released to him all rents, services, exactions, and demands

out of his Mannor except suit of Court; the Defendant demurred: And Nichols; that suit of Court for which this common Fine was set is excepted, and therefore the common Fine is not released by that, but is excepted: also a common Fine is assessed, when the Jurors in the Leet do conceal that which they ought to find, and with which they are charged, and therefore the release being for exactions out of the Land: And this is not for any thing by reason of the Land, but because he doth misbehave himself; and by the opinion of the whole Court, a release of all demands doth not discharge a man of his suite to a Leet by reason of his residency; because a Leet is the Kings Court, to which every leige-Subject is to come and perform his allegiance to him. And also because suit of Court is inseparably inoident to a Court▪ leet which cannot be released.

PAllets Case, Pasch. 5. Jacob. In a replevin in which Pallet was Plaintiff, the case was such, where a man made a Lease of Lands, of which Land he was seized by a good Title, and of Land of which he was seised of a defeasible Title for years, rendring rent: and in the replevin, the Lessor avows for the whole rent: The Plaintiff in the re∣plevin saith; that after the lease made, the Disseisee had entred up∣on part of the Land, and a demurrer. Sergeant Hicham moved for the Advowant that he ought to have a return; for he agreed that the rent should have been apportioned; but he said, that if a man avows for many things, and he hath right but to one, he shall have a returh habend. 5. H. 7. and 9. H. 7. And 4. Ass. Pl. 6. where a man brings an assise for rent, and hath right but to part, yet he shall recover for that part, and cited the opinion of Popham put in Walkers Cafe in the third Rep. 24. when rent reserved upon a Lease for years should be apportioned. If a man in an action of debt demands more then hee ought, yet upon a nil debet pleaded, the Lessor shall recover so much as shall be apportioned and assessed by the Jury, and shall be barred as to the residue. But Yelverton was of another opinion; for he said, as this case is, the Avowant shall not have a return habend. But if the apporciament had been made by the Jury, he should have had a re∣turn habend. but in this case the apporciament must be made by the Judges, to whom the quantity of the Land cannot appear, and there∣fore they cannot make apportiament; for they all agreed that the ap∣portiament ought to be accotding to the value of the Land, and not according to the quantity: And to prove this, he cited Hubberd and Hammonds Case, 43. Eliz. co. lib. 427. As where the Fines of Co∣pyholders upon admittance are uncertain, the Lord cannot exact ex∣cessive Fines: and if the Copyholder deny to pay it, it shall be deter∣mined by the opinion of the Judges before whom the matter de∣pends: and upon a demurrer to the evidence to a Jury upon the con∣fession

or proof of the annuall value of land; the annuall value ought to appear to the Judges; but in this case the value doth not appear to them, and therefore they cannot make any apportiament, and there∣fore the Avowant shall not have a return habend. But T••anfield held the Avowant should have a return habend. for the whole rent; for the Judges could not apportion this, because the value did not appear: and the eviction is matter of privity, which ought to be discovered by the Lessee, and he should give notice to the Lessor, and he ought to shew the value of the Land from which he is inriched to the Judg∣es. And Popham is of the same opinion; for he said the value of the Land ought to be shewed by the Lessee, for every one ought to plead that which is in his knowledg, and that was in the Lessee's knowledg, and not the Lessor: and Fenner of the same opinion, but Yelverton and Williams against it; for Yelverton said, that it appeared that part of the Land was evicted, and therefore it ought to be apportioned; but because the value did not appear to the Judges, it could not be apportioned. Williams said, that if the Lessee surrender part, the Lessor need not shew the value: and Popham agreed to that, because the acceptions of the Lessor had made him privy to it.

KEnrick versus Pargiter, Trin. 6. Jacobi. The Defendant justifies * 1.467 the taking of the Cattell damage fesant upon a surmise of a cu∣stome; that the Plaintiff being Lord, hath the place in which &c. wholly to himself untill Lammas day: and after that day it is com∣mon for the Tenants, and the Plaintiff is not to put in but only three horses, &c. And because the Plaintiff after Lammas put in more cat∣tell then three horses, the Defendant took them damage fesant, as it was lawfull for him to do: And issue was joyned upon the custome, and found against the Plaintiff; and Yelverton shewed in arrest of Judgment that the Defendant could not take the Cattell damage fe∣sant, for it appears that the Defendant is only a Commoner: and it also appears, that the place in which &c. is the soile of the Plaintiff, and the Cattell cannot be taken damage fesant upon his ground, no more then the Tenant can have an Action of Trespass against his Lord guare vi & armis, &c. in regard of his Seigniory, as it is in Little∣ton, and 5. H. 7. But the Court said, that the matter of taking the Cattell did not come into question; for nothing was in issue but the custome, which is found against the Plaintiff; for if the Plaintiff would have taken advantage of that, he ought to have demurred. And although by that he had confessed the custom, yet whether such Commoner could have taken, the Lords Cattell would then properly have come into debate. And by Fenner, Williams, and Cook, the taking the Lords Cattel damage fesant was good; for by the custom the Lord is to be excluded but only for his stint: and the Lord may well be

stinted, and the whole vestive and benefit of the soile is the Commo∣ners, and they have no other remedy to preserve the benefit they have in feeding their Cattell, but by taking the Cattell of the Lord if he offends. And the Custome hath made the Lord as meer a stranger as any other: and without doubt the Commoner might take the Cat∣tell of a stranger, 15. H. 7. The chief Justice and Yelverton doubted of it: And although the Commoners by the custome had gained the sole feeding in the land of the Lord: Yet they ought to have shewed the custome, and also the usage to have distrayned the Cattell of the Lord damage fesant, and observe his.

BRaxall versus Thorold. Trin. 8. Jac. In Replevin for the taking of 4 Oxen at Coringham in the County of Lincoln, in a place called * 1.468 Dowgate leys, Sept. 6. Jac. The Defendant says, the place contained four acres in Coringham magna, which was his Free-hold and justifies the taking damage fesant. The Plaintiff in his bar to the Avowry, that the place where &c. lies, in a place called Harrerart quarter, par∣cell of a great Common Field called E. in Coringham aforesaid: and that the Plaintiff the said time, and long before was seized of one Messuage, and of 14. acres of Land, Medow, and Pasture, with the appurtenances to the said Messuage belonging, and that the Plaintiff and all they whose estate the Plaintiff had in the Tenements, ought to have common, and so prescribed to have common for him, his Farmers, & Tenants, &c. for all comunable cattell levant & couchant upon the Tenements, &c. And upon issue taken upon the Common, it was found for the Plaintif, and alledged in arrest of Judgment, that it did not appear by the Barre to the Avowry in what place the Mes∣suage and Land to which the Common did appertain did lie, to wit, whether it did lie in Coringham, or in any other place or County, and thisof necessity ought to have been shewed in certain, because the tenure ought to be both of the place where the House and Land did lye, and of the place where the Land did lye in which the Com∣mon was claimed, and therefore of necessity ought to have been shewed incertain, and shall not of necessity be intended to be in Co∣ringham where the Common is; For a Common may be appendant or appurtenant to Land in another County. And the trvall shall be of both Counties, and Judgement was arrested by the whole Court

TRuelock versus Riggsby Mich. 8. Jacobi. In Replevin, for the * 1.469 taking of six Kine in a place called Brisley hill, in Radley, in the County of Berks, the Defendant as Bailiff of one Read, makes Co∣nisance that the place, where, &c. contains fifty acres, and is parcell of the Mannor of Barton, whereof the place, where, &c.

is parcell, and showes that E. 6. was seised of the Mannor of Barton, whereof the place where is parcell, and granted it by Letters Patents to R. Leigh, and divers other Lands. by the name of the Coxleyes, &c. and amongst other particulars in the Patent, the King granted Brisley hill in Barton, and deduces the Free-hold of the Mannor, of which the place, In which, &c. is parcell to Read, and he as Bailiff to him, took the Kine damage Fesant: the Plaintiff replies, and shows that one Hide was seised of a Messuage, and divers Acres of Land in Radley, and that he and those, whose estate he hath for himself, his Farmers and Tenants used to have Common in the said place called Brisley hill in Radley, when the said Feild, called Brisley hill in Radley, was fresh and not sowed, all that yeare with their Cattell Levant and Couchant, and when the Field was sowne with Corne, and when the Corne was carried away, untill it was referred, and so justifie the putting in of six Kine using his Common, because the Feild was not sown with Corne at the time, to which the Defendant pleads, and saies, that part of the Feild, called Brisley Hill in the Avowry named, was at that time sown with Corn, &c. and the Plaintiff demurres, and adjudged for the Plaintiff for two reasons. The first was, because the Defendant in his Avowry referres the taking of the Cattell to another place, then that set forth in the Avowry, which is not in question, and in which the Plaintiff claims no Common, for the Plaintiff may claim Common in Brisley hill in Radley, and the place named in the Defendants Avow∣ry, to which he referres his Plea is Brisley hill in Barton, for Brisley hill in Radley is not named in the Avowry by any speciall name, but onely by implication, by this name the place in which, &c. and for that reason the rejoinder doth not answer the matter in the replicati∣on. The second cause was, because the Plaintiff claims Common, when Brisley hill in Radley was unsown with Corn, and the Defendant to that, although his Plea should referre to the same Brisley, yet hath he given no full answer, for he saith that parcell of the said Feild was sowed with Corn, and the Court held that sowing of parcell of the Feild shall not hinder the Plaintif from using his Common in the resi∣due, for that may be done by covin to deceive the Plaintiff of his Common, for the Plaintif claiming his Common, when the Field, that is, the whole Feild is sown, shall be barred of his common by sowing of parcell of it, notwithstanding that parcell be sowed, the Plaintif shall have his common by the opinion of the whole court.

GOdfrey versus Bullein. Mich. 8 Jacobi. Bullein brought a Reple vin against Godfrey, for the taking of six Beasts, in such a place in Bale, in the County of Norfolk.▪ the Defendant as Bailif of R. God∣frey makes conisance, because before the time, and at the time, in

which &c. the said R. Geffrey was seised of a Court Leet in Baile of all the inhabitants, and r••••dent within the Precinct of the Mannor of Baile, to be holden within the Precinct of the Mannor, as appertain∣ing to his Mannor, and shews, how that he had used to have a Fine of ten shillings, called a Leet Fine of all the cheif pledges of his Leet, and if they failed to pay, the Steward had used to amerce them that made default in payment, & shewed, how that at a Court holden with∣in the Mannor, such a day it was presented, that the Plaintif in the Replevin being an inhabitant in B. and resident within the Precinct of the Mannor, made default in payment of the said Fine of ten shillings, being then one of the cheif pledges of the Court, by reason where∣of he was amerced at five pounds, which being not paid, the Defen∣dant took the Beasts, and the Issue was, whether Bullein at that court was a chief Pledge or no, and the Venire to try his Issue was onely of the Mannor, and found for the Plaintif, and damages, and costs to thirty pounds given against Geffrey, upon which he brought a Writ of Error, in the late Kings Bench, and adjudged Error and the Judge∣ment reversed, for the Venire facias should have been both of Bail which was the Village, as of the Mannor, for although the Court be held within the Mannor, yet the Leet it self is within the vil∣lage of Baile, and the Plaintiff was an inhabitant, and resident with∣in the village, which village is within the Precinct of the Mannor, and though Fleming cheif Justice held, that nothing was in questi∣on but whether the Plaintiff was cheif pledge at the Court held with∣in the Mannor or no, and so nothing within the village is in question, or could come in Issue, yet it was resolved by the whole Court, but him, that those of the village of Bail might well know whether the Plaintif being an inhabitant within the village in which the Leet was, were a chief Pledge at the Court or no, for to have cheif pledges, doth properly belong to a Leet, which Leet is within the village, and there∣fore they of the Mannor cannot have so good knowledge of the mat∣ter, as they of the Mannor and village together, and therefore they all ought to have been of both, as in the Case of Common, or a way from one village, to a house in another village, this ought to be tried of both villages, and so also of the Tenure of Land in D. held of the Mannor of Sale, the triall must be as well of the village, where the Land lies, as of the Mannor of which the Land is holden, as it was adjudged Hill. 45. El. in the then Queens Bench, in the Case be∣tween Lovlace and and Judgement was reversed, and see 6 H. 7. and Arundels case, in my Lord Cooks Reports.

BƲrglacy versus Ellington. Burglacy brought a Replevin against * 1.470 Ellington, for the taking of his cattell, &c. the Avowant pleads that one W. B. was seised of the place in which, &c. in his Demesne,

as of Fee, and being so seised died, by reason whereof the Land de∣scended to one Crist. his Daughter and Heir, who took to Husband the Avowant, the Plaintiff in his Barr to the Avowry, confesses that W. B. was seised, and that it descended to C. who took to Husband, the Avowant, but he further said that the 16 of April, primo Jac. the Husband and Wife by their Deed indented, and inrolled, did bar∣gain and sell the same Land unto one Missenden, and a Fine levied by them, and that M. the 30 of James, bargained and sold it to F. M. in Fee, and he being so seised, licensed the Plaintiff to put in his cat∣tell, the Avowant replies, if in the said Bargain and Sale made by the Husband and Wife, a Proviso was contained, that if the said Elling∣ton should pay one hundred pounds a year after, then, &c. and plead∣ed the Statute of 13 Eliz. of usury with an averment that the pro∣fits of the Land were of the value of twelve pounds by the year, the Plaintif rejoyned that true it is, there is such a clause in the Indenture but he further said, that before the sealing of the Indenture, it was agreed by word, that the said Ellington should have and receive the profits, and not the Plaintif, and thereupon the Avowant demurres, and the Case was thus, Ellington bargains his Land to M for the payment of one hundred pounds a yeare after to be paid, and that the Bargainee should have the profits, the bargainor enters as upon a void Sale, because of the statute of usury, for by the Proviso ••he is to have the hundred pounds, and ten pounds for the forbearance, and by the Law, he is to have the profits, and the which did amount a∣bove ten pounds by the hundred, the bargainee to avoid the usury pleaded an agreement by word, before the sealing of the Bargain and Sale, and the question arising upon this was, if the Bargainee might plead this verball agreement, for the avoiding of the Deed which did suppose the contrary, and Moore of Lincolns ••nne counsell, was of o∣pinion that he could not put that maxime that every thing must be dissolved by that, by which it is bound, and his whole argument de∣pended upon that, and he cited divers Cases, as 1 H. 7. 28. 28 H. 8. 25. 1 Eliz. Dier 16. 9. Rutlands Case 5 Rep. and Cheyney 6 Case there, but the whole Court without any argument were of opinion, that he might plead the verball agreement, and avoid the usury, and first they all agreed, that when a Deed is perfected and delivered as his Deed, that then no verball agreement afterwards may be pleaded in destruction thereof, as it is in the Cases put, but when the agreement is parcell of the Originall contract, as here it is, it may be pleaded and secondly otherwise it would bring a great mischief, being the cu∣stome so to do by word, but if it had been expressed within the Deed, that the Bargainee should have the profits, and that it was delivered accordingly that no agreement or assignment of the profits could now avoid it, for it is an usurious contract, and therefore the whole court

gave Judgement for the Plaintif that he might well plead the agreement.

Actions of Trespass and Battery.

JOhnson versus Turner, Trin. 44 Eliz. Trespasse brought for break∣ing the Plaintifs house, and the taking and carrying away his goods, * 1.471 the Defendant justifies all the Trespasse, the Plaintif, as to the breaking of the House, and taking the goods, and the matter there∣in contained demurres upon the Defendants Barr, the Defendant joins in demurrer in this form, to wit, because the Plaintif aforesaid, as to the breaking of the House, and taking the goods is sufficient, demands Judgement, and Judgement given in the Common Pleas for the Plaintiff, and a Writ to inquire of Damages, upon which Dama∣ges are assessed for the breaking of the House, and taking the goods, and whether the subsequent words, to wit, and the matter therein contained go to the whole matter in the Barr, to wit, to the carrying of the Goods away also, for when the Defendant joyned in Demur∣rer with the Plaintiff he joyned, specially to wit, to the breaking of the House, and taking the Goods, but nothing of the carrying them away, and so as to the carrying of them away, nothing is put into Judgement of the court, yet the Writ to inquire is for the whole, and the Judgement also, and the carrying of the Goods away being par∣cell of the matter, and for which greater Damages, are adjudged, and that being not put into the Judgement of the Court by the Demur∣rer, therefore the Judgement is erronious, for there is a discontinu∣ance, as to the carrying of the Goods away, which is part of the mat∣ter, and this businesse concerned Mr. Darcy of the privy chamber, concerning his patent for Cards.

PƲrrell versus Bradley. Pasch. 1 Jacobi. The Plaintif declares in Trespass, wherefore by force and Arms, such a day the Defen∣dant did assault him, and one Mare, price six pounds, from the per∣son of the Plaintiffe, then and there did take, and Yelverton moved for the Defendant in arrest of Judgement, and the Declaration was not good, for the Plaintif did not shew any property in the Mare, for he ought to have, that it was his Mare, or the Mare of the Plaintif, for as it is laid in the Declaration, the words may have two intend∣ments, that the property of the Mare was to the Defendant, and then the taking was lawfull, or that the property was in the Plaintif, and

then the taking was wrongfull, and it being indifferent, to whether it shall be taken most strongly against the Plaintif, for his is not a fault in form, which is helped by the Statute, but it is a defect in matter, and then the Jury having assessed intire Dammages for both the Tres∣passes, and that no cause of Action is supposed forme, the verdict was not good which the Court granted.

FReshwater, vers. Reus, Mic. 2 Jac. tenant in tail, convenanted to stand seised in consideration of a marriage, to be had by his Son, with the Daughter of J. S. to the use of himself & his heirs, untill the marriage be had, & afterwards to the use of himself for life, & afterwards to his Son and his wife, the daughter of J. S. and the heirs of their bodies, and suffers a recovery with a single voucher to that purpose, they die with∣out Issue, and adjudged that the Entry of him in the Remaindant de∣pending upon the estate. Tail was lawfull, for first there is no considera∣tion, to raise an use for the consideration, is onely the marriage of his Son with a stranger, the which as to the changing ofthe possession is not any benefit to the Father, for he is as a stranger to that personall & particular consideration, but if the consideration had been for the e∣stablishing of the Land in his name and blood, it had been good, for that onely concerned the Father, and the whole Court agreed, that although it were an alteration of the Estate, as to himself, but not to strangers, for if he had after such Covenant to stand seisedtook a Wife, she should have had Dower.

In Trespasse the Proces is Attachment and Distress infinite, but if nihil be returned, Proces of Outlary lyes; and if the Defendant be returned attached by such Goods and Chattels, if the Defendant omit to cast an Essoine at the returne of the Writ of Attachment, he shall forfeit the Goods by which he was attached, but if he cast an Essoine, he shall have a speciall Writ, reciting the matter to the She∣riff, to deliver to him his Goods or Cattell, although he doe not ap∣peare at the day of the adjournment of the Essoine: And if the Defendant at the returne of the Attachment will appear without an Essoine he may, and then he shall not forfeit the Goods: And note, the Essoine shall not be adjourned by, from fifteen dayes to fifteen dayes: And if the originall Writ be against many, they shall have but one Essoine in personall Actions: And if a Lord of the Parlia∣ment appeare not, he shall forfeit an hundred pounds, and upon issue joyned in this Action, the Proces against the Jury, is the Venire fa∣cias, Habeas corpus, and Distresse: And if a Baron of the Parliament be a Defendant, then if a Knight be not returned upon the Pannell, the Defendant may at the Assises quash the Pannell; and if at the Assises the Jury doe not appeare full, to wit, twelve men, this may be supplyed by the Justices at the request of the Plaintiff; and the Sheriff ought to returne two Hundreds at the least in this Action, and so in every personall Action; but foure in reall Actions, for if

a challenge be made, Pro defectu hundredo, if two be not returned, the Jury shall remaine; and a Distringas, with a Decem tales shall be awarded, returnable in Court, but no circumstances shall be awarded in Court, for if the Jury in Court doe not appeare full, or are chal∣lenged, for that the Jurors have no freehold, and it be tryed, a new Habeas corpus shall issue out with a Decem tales, if it be desired: And if the Jury appeare full in the Court, and the Array be challenged, either for that it was of the Plaintiffs denomination, or that the Sheriff or under Sheriff who returned the Jury, are of the Kindred of the Plaintiff, or any other principall cause of challenge, and this is confessed or tryed by two of the Jurors who have appeared, be∣ing assigned and sworne by the Court to be tryers of the challenge, who shall give their Verdict that the challenge is true, then the Ar∣ray shall be quashed; and if he that arrayed the Pannell remaine Sheriff, the Venirefacias de novo, shall be awarded to the Coroners, if there be no cause of exception against them or any of them by reason of Kindred, or any other principall cause: And if there be cause of challenge to any of them, the Venire facias shall issue to the rest, and his companion shall not intermeddle with the execution of it; and if there be good cause against all, then a Venire facias shall issue to Estizors to be appointed by the Court to returne the Writ, but if the Sheriff who returned the first Pannell be removed, then a new Ve∣nire facias shall issue to the Sheriff who shall be then in Office: And note, no challenge shall be made to the Array returned by the Estizors but by the Poll; and if the Jury appeare full, and no chal∣lenge be made untill twelve be sworne, the Jury shall proceed to heare their Evidence, and give their Verdict; and if the Jury finde for the Plaintiffe, then they shall give costs and dammages, but if they find for the Defendant, they shall finde neither costs nor dam∣mages: And the Judgement for the Plaintiff is, that the Plaintiff shall recover his dammages found by the Jury and costs of suit, but if the Jury find for the Defendant, the Judgment is, that the Plain∣tiff shall, int. capiat per breve, but if Judgement in this case had lyen, a Nil dicit confession. or Non sum informat. then the Court shall a∣ward to the Sheriff a Writ to inquire of dammages, and no chal∣lenge lyes to the Jury upon a Writ to inquire: And if the Sheriff returne but twenty and one upon the Jury, and twelve of them ap∣peare, and try the Issue and give a Verdict, it is a good Verdict, but if onely ten or eleven of them appeare, and the Jury be made up at the Assises, De circumstantibus, and the Issue be tryed and a Verdict given, it is naught, and not holpen by the Statute: And if the Issue be joyned, and the Sheriff be cozen to the Defendant, the Plaintiff shall not have a Venire facias upon the challenge of Kindred of the Sheriff to the Defendant, but it ought to stay untill that Sheriff be

removed and another Sheriff made: And if the Defendant be Lord of the Hundred, within which Hundred the ten doth arise, the Plain∣tiff may shew that, and have a Venire facias to the next Hundred; or if the Array be quashed for that cause, he may have a Venire facias to the Coroners of the next Villiage in the next Hundred next ad∣joyning: And note, The Venire facias shall not issue to the Coroner but upon the principall challenge, and if a challenge be to the Ta∣les, and that be found true, the Tales onely shall be quashed, and the principall Pannell shall stand: And if an Issue be joyned be∣tween the Mayor and Commonalty of a City, and another concern∣ing a Trespass done within that City; the Plaintiff surmising that the Sheriff and Coroners are Citizens of that City, may pray a Venire fa∣cias to the next County of the body of the County, or of the next Villiages in the next County: And if the challenge of Kindred be not rightly alleadged in the challenge, it matters not if it be Kindred; and if a Venire facias be quashed, because it was returned by the Un∣der Sheriff who was Kin to him, or other good cause, it shall be quashed, and the Venire facias shall be returned by the high Sheriff, with words in it, that the Under Sheriff shall not intermeddle with it: And if the Array be challenged and affirmed, the Defendant may after challenge the Poll, and must shew his cause of challenge presently: And if the Land in question lye in foure Hundreds, if foure of any Hundred appeare, it is good; and note, That the chal∣lenge of the Array shall be drawne in Paper, and delivered presently after the Jury appeares; and the Defendant is not bound to make good his challenge with these words, Et hoc parat. est ver iscare, &c. And those that try the principall challenge may also try the challenge upon the Tales, if the King had been party alone no challenge was to be allowed, but if the suit had been in the name of another, who sued as well for the late King as for himselfe, in a Writ to inquire of waste after a distress, no challenge to the Poll lyes.

It is good cause to challenge a Juror because he was attainted in a conspiracy or attaint, or if any Juror was put into the Pannell at the desire of the party, it is good cause of challenge to the Array: And if a Jury of two Counties, and both Arrayes are challenged, two of one County shall try the Array of that County, and two of the o∣ther County shall try the Array of the other County, and they shall not joyne untill they be sworne of the Principall, and two of one Hundred and two of the other Hundred doe suffice, if in Trespass the Defendant justifie as a Servant to the Lord and by his commande∣ment. It is good cause of challenge to the Juror that he is a Tenant to the Lord, although the Lord be no party to the Record; and if Process by challenge is awarded to the Coroners, the Process after∣wards shall not goe to the Sheriff, although there be another She∣riff,

but after Judgement execution shall issue to the new Sheriff: And where a man challenges the Polls of the principall Pannell, he afterwards shall not challenge the Array of the Tales, and if the Array be quashed, it is entred upon Record, but if it be affirmed then it is not entred.

If Trespass be done in diverse Townes in one Shire, they may all be joyned in one Writ, to wit, why by force and armes the Closes and Houses of the Plaintiff at A. B. and C. have broken; and, &c.

WOlsey versus Sheppard, Constable, The Constable being De∣fendant * 1.472 justifies the Imprisonment, by reason that the Plaintiff kept one Alehouse against the forme of a Statute of Queen Eliza∣beth, and therefore by the warrant of two Justices he was committed to Prison, and Issue was, that he did not keep an Alehouse against the forme of the Statute aforesaid; and indeed the Statute was made in Edw. 6. time, and the Jury found that he did keep an Alehouse against the Statute in Edw. 6. time: And the Court held the mista∣king of the day of the Act is not prejudiciall by way of barr, but by way of count it must be layd truly.

GLasbrook versus Einsey, Pasch. 16. Jacobi, in Assault and Bat∣tery, the Defendant pleaded not guilty, and the next terme af∣ter * 1.473 the Writ of Venire facias was awarded, the Defendants Attorney would have confessed the Action by Relicta verificatione, which the Plaintiff did deny to receive, having took out his Venire, and that those Errors which had escaped in the proceedings by that confession were not holpen as they are after tryall; and it was much contro∣verted by the Court, whether the Defendant without the consent of the Plaintiff might confesse the Action; and the Court was in severall opinions, but because the Plaintiff always prays for the confession, it seemed he might refuse the confession; and afterwards it was ad∣judged the confession should not be received, because it appeared to the Court to be but a practice to lessen the Plaintiffs Damages.

COok versus Jenman, Trin. 12. Jacobi, rotulo 329. An Action of Trespass and Battery was brought the last day of October, 10 Ja∣cobi: The Defendant as to the force and armes sayes nothing, but pleads generally that he and one, in the sayd last day of October did joyntly enter into the Plaintiffs at S. and did then and there assault the Plaintiff; and that afterwards, to wit, such a day and yeare, the said Plaintiff▪ did by his Writing, &c. release, &c. the said R. of all Actions, &c. And avers it to be the same Trespass whereof the Plain∣tiff complained, and the Plaintiff traverses without this, that the Trespass, &c. was joyntly done, and demurrer upon this Plea, pre∣tending

the Trespass is severall and not joynt, and so no satisfa∣ction, but it was held a good Plea, for the Battery was joynt or se∣verall at the Plaintiffs election, to have his Action against one or o∣ther: And a satisfaction by one is a satisfaction for all, and the Plain∣tiff cannot have severall dammages, but one dammage against them all, and he hath his choice, as in Heydens Case, to have the best dammages.

COok versus Darston, Mich. 15. Jacobi, An Action of Trespass brought by the Committee of a Lunatique being a Copy-holder to whom the Lord had committed the Lunatique, and a stranger sowed the Land, and the question was, whether the Committee or the Lunatique should have the Action, and the Court held, the A∣ction should be brought in the name of the Lunatique.

YOunge versus Bartram, Battery brought by the Plaintiff against Husband and Wife and two others, the Woman and one of the others, without the Husband plead not guilty, and the Husband and and the other plead, Son assault demesne, and tryed, and alleadged in arrest of Judgement, because the Wife pleaded without her Hus∣band, and Judgement stayed and a Repleader by the whole Court.

CRogate versus Morris. If a stranger come over a Common, the Lord may have an action, but not the Commoner; for the petty Trespas, multiplicity of actions wil not take away my action: & except it be a damage whereby I lose my Common, I can have no action. If a stranger come and eat up my Common, a Free-holder may bring an Assize of common, for it is a Disseisin; for a Disseisin of Common; is the taking away the profits of the Common: And an action of case will lye against the Lord for cutting down the body of the tree, when the Tenant should have the loppings; if the Commoner may have his Common, although another take away part of my Common, yet no action lyeth. As if one beat my servant lightly, except the Master lose his service, no action lieth. And if my friend come and lye in my house, and set my neighbours house on fire, the action lyeth against me, and Judgment for the Plaintiff.

HAtton versus Hun, Trin. 13. Jacobi, rotulo, 3314. In Trespasse and Imprisonment, the Defendant justifies by vertue of a Capi∣as, and the Plaintiff did afterwards escape, and he being Sheriffe, did follow him by vertue of the said Warrant taken upon the Capias, the Plaintiff replies that he escaped by license of the Sheriffe, and traver∣ses the latter taking by vertue of the Warrant: and the Court held the traverse idle, because the Plaintiff had sufficiently confessed, and

avoided: and if he escaped by the Sheriffs License, that ought to be the thing put into issue, and not the traverse.

PAtry, versus Wilsh, Trin. 9. Jacobi. rotulo, 1055. An action of Trespass brought, wherefore by Force and Armes he broke the Plaintiffs Close, and eat his Grasse, &c. The Defendant justifies for common of pasture, and saith, that he was seised in Fee of one Mes∣suage, with the appurtenances in G. and used to have common for all his Cattell, levant and couchant upon the said Messuage. And it was moved after a verdict in arrest of Judgment by Sergeant Nichols, that the plea was insufficient, because the certainty of the Cattell was not expressed, as for 200. or the like: but the Court held the contra∣ry that levant and couchant is a certainty sufficient, and all the Books prescribe for a Common by reason of a Messuage.

RInghall versus Wolsey, Mich. 11. Jacobi rotulo, 820. An action of Trespass brought; wherefore by force and Armes the servant * 1.474 of the Plaintifs out of the service of the said Plaintiff, hath taken and laid to be at H. The Defendant justifies that one was possessed of Corn at S. And that the said servant by the command of his Master, had carried away the Corn: and that the Owner came to the defen∣dant, being Constable, and prayed him to detain the servant untill hee could procure a Warrant of a Justice of Peace, and traverses that he is guilty at H. The Plaintiff demurres, that it was held by the Court a naughty plea: First, because the Constable could not detain any man but for Felony: And secondly, the traverse is naught, because the Trespass is in the same County, and so he might have justified as well in H. as in S.

DArney versus Hardington, Pasch. 9. Jacobi rotulo, 1857. An acti∣on of Trespass brought, to which the Defendant pleads a justifi∣cation for an Amerciament set in the Sheriffs turn; to which Justifica∣tion exceptions were taken. First, because the Defendant justified by vertue of a precept to him lawfully granted, & saith not at what place. Secondly, he prescribes for the turn to be held, and doth not any, or what estate, &c. And Hutton said, that a prescription for a turn, or one hundred Court by what estate, is naught, because a hundred is not manurable, but lies in grant; but he ought to have said, that the King and all they that were seised of the said Hundred have had, and from the time, &c. And my Lord Cook said, that a prescripti∣on by what estate for a thing incident to a Mannor is good, for an Hundred that lies in grant, it is naught: And he and Warburton held that except it was shewed before whom the turn was held, it was naught; because where any thing is taken by common right as the

Sheriffs turn, it ought to be holden before the Sheriff, as in the pre∣scription it ought to be shewed, before whom the turn was held, or else it would be naught.

ROberts versus Thacher, & al. Hill. 11. Jac. rotulo, 1928. An a∣ction of Trespass brought; wherefore by Force and Arms the Close and House of the Plaintif at A. did break, and a certain Cow, price, &c. took. The Defendant saith, that the Plaintiff ought not to have his Action against him, because he saith that the Close & House is one Messuage, &c. in A. aforesaid: and that before the time in which, &c. such a one was possessed of the said Cow, as of his own proper Cow, to wit, at A. aforesaid; and being thereof so posses∣sed, certain Malefactors unknown to the said, &c. before the said time, in which, &c. the said Cow out of the possession of the said B. did feloniously steal, take, and lead away, whereupon he made Hue and Cry; and thereupon hee had intelligence, came, and was in the possession and custody of the Plaintiff, and B. upon notice thereof, did request the Defendant to ask the Cow of the Plaintiff, and to bring her, &c. By reason whereof, the Defendant the said time, in which came to the said Messuage by the usuall way, by and through the said Close, &c. to demand, &c. And the Defendants then & there finding the aforesaid Cow in a wall'd parcell of the Mes∣suage, they took the Cow from thence, and brought her to the said B. and to him delivered her, as &c. which is the same Trespass, to which plea the Plaintiff demurres, and it was adjudged a naughty Ju∣stification for these reasons. First, because it doth not appear but that the Plaintiff had good right to the Cow. Secondly, because the Defendant took the Cow without demand. And thirdly, it is not pleaded that the Defendants were servants to the said B. R. and that he did it by his command, and therefore Judgment given for the Plaintiff.

HAll versus Stanley, & al. Pasch. 9. Jacobi. rotulo, 2289. An a∣ction * 1.475 of false imprisonment: The Defendant as to the whole Trespass except the Battery and Imprisonment, and keeping in prison not guilty: And as to that pleads that the Marshals Court is an anci∣ent Court, &c. and so justifies, because the Plaintiff was the pledg of T. C. to the Defendant in an action of trespass upon the case in an in∣debilat. assumpsit generall, and thereupon a Judgment against C. and a Capias awarded, and a non est invent. returned, and thereupon a capias awarded against Hall the pledge according to the custome, by vertue whereof the said Hall was taken and detained, and traverses that he was guilty, &c. of any imprisoning the Plaintiff before such a day, and averres that they are the same persons: And the Plaintiff

replies, that neither R. C. nor T. T. at the time of exhibiting the Bill were of the houshold, &c. The Defendant demurs, and Judgment for the Plaintiff: and the whole Court agreed, that the Marshalls Court could not hold Plea, Covenants, and Contracts, except both of them were of the houshold of the King; and all the matters of which they could hold plea, were Trespass, Covenants, and Contracts of the hous∣hold, and within the verge, to wit, within twelve miles of the Court, and Doddridge said that before the Statute of 28 l. as it appears by Fleta and Brian, the authority of the Marshall was absolute in civill and criminall causes at the Common Law, and that Statute restrains them for Debts, but not for Trespasse of what nature soever, and therefore see the Statute of 30 l. 1. 5 E. 3. ch. 2. and 10 E. 3. ch. 2.

Swaffe versus Solley, Trin. 14 Jacobi. rotulo 689. An Action of Trespass brought, wherefore he took his Close, the Defendant ju∣stifies for a way, the Plaintiff replies that he did the Trespass of his own wrong without any cause alledged, and so an Issue joyned, and after a Verdict, for it was moved in arrest of Judgement, that the Is∣sue was not well reined, and prayed a new Triall, because the Issue ought to be speciall, but that exception was disallowed, and adjudged that it was helped by the Statute of Jeofails, by the opinion of the whole Court.

PLaint versus Thirley, Hill. 6 Jacobi rotulo 161. An Action of Trespass brought, wherefore by force and Arms, the Goods and chattells of the plaintif did take and impound, the Defendant plead∣ed the common Barr, and the plaintif assigns the place, and are at is∣sue upon that, and after a verdict it was moved in arrest of Judgement that there was no Issue joyned, because the Lands are not in question, and so no assignment necessary, and Judgement was stayed, but af∣terwards upon a motion Judgement was given for the plaintif, because the Issue was holpen by the Statute of Jeofails, and there was the like case upon a Demurrer, in the court of common pleas, Trin. 4 Jacobi, rotulo 1131.

CHild versus Heely, 13 Jacobi, rotulo 3381. vel 381. An Action of Trespass brought, wherefore by force and Arms, the Close, Hed∣ges, and Gates, of the Plaintiff at W. did break, and his grass with walking over it did destroy, and other his Grass with Cattell did eat and consume, the plaintiff assigned one Close of pasture called Drew, and another close called Sutton, one other close called L. and the Defendant as to the Trespass, except the breaking of the close cal∣led G. and P. and the treading, &c. with his feet, and eating with his cattell in the said close called P. and E. not guilty, and as to the

breaking of the close, &c. saith the plaintif ought not to have his Acti∣on, because he saith that E. 6. was seised of the Mannour of W. of which one Messuage &c. was copy-hold and shews the custome for a way, and another custome for a Common, and conveys the Copy-hold to himself, and justifies, as to the pedibus ambulandi, and as to the Trespasse with the Cattell justifies for Common, the Plaintif re∣plies as to the Trespass pedibus ambulandi, that it was of his own wrong without any cause alledged, and traverses the way, and as to Trespass with the Cattell demurres, and the cause of the Demurrer was, as it appeared by motion, because in the justification of the Cat∣tell the Defendant had not alledged any custome for Common, and so the Plaintif could not take any Issue of that custome, but had alledged a custome for the way, as for the common, and the court were of opi∣nion that it was well pleaded; and Judgement upon the Demurrer for the Defendant.

FAirchild versus Gair Pasch. 3 Jac. An Action of Trespasse brought for the tiths of the Church of B. and therein a speciall verdict was as followeth, the Defendant was collated to this Church of B. being a Donative by A. and B. the Patrons, and that the Church was exempt from the Jurisdiction of any Ordinary, the Defendant resigned to A. and C. who was a stranger, and to other persons who had no Interest, his Church of B. with all Rights, &c. and afterwards the persons passe their Rights to D. who collates and interests the Plaintiff in the Church, by reason whereof he seised the Tithes in question, and the Defendant took them, and concludes that upon the matter, &c. and if the Resignation be good, then they find for the Plaintiff, otherwise, for the Defendant, and by the opinion of the whole Court, Judge∣ment was given for the Plaintiffe, for the Resignation was good, both in respect of the thing resigned, and of the person to whom it was made, for it being a Donative, and exempt from ordinary Jurisdi∣ction, the Resignation must be into his hands, and the Incumbent shall not be constrained to keep the Church, whether he will or no, if the Patron will not accept it, and because there is no person, to whom the Resignation can be made, but onely into the hands of the Patron, it is good, and although the Resignation be to one Patron, and to a stranger, it is good to both the Patrons, and void as to the stranger, and the more strong it is, because of the following words, (to wit, to all persons whatsoever, which words involve all, that have any manner of interest, and then seeing it is found, that D. who colla∣ted the Plaintiff, and the Estate of both the Patrons, although no agreement be found of the Patrons, it is not materiall, and the rest∣ing of the Plaintiff in the Church is good to give him power to take the profits by reason of the primer possession, and although the De∣fendant

did resigne but the Church onely, yet it is good to all that appertains to the Church, and that which the Defendant may have as Rector there, 6 E. 3. is, that if the Patron grant Ecclesiam, that will passe the Avowson, but Herlethen said, that was in ancient time and therefore not so then, to which the court seemed to agree, and the court waived the Dispute of any other thing, but onely the Re∣signation, for of that onely the Jury doubted, and was onely refer∣red to the court, but Popham chief Justice said, that if the Patron would not collate any man to such a Donative, there was no way to compell him, but he is left to his own conscience, and he might in time of the vacancy take the profits, and sue for the Tithes in the spirituall court, for such Donatives at first grow by consent of all persons, who have any manner of Right or Interest, to wit the Ordinary, and Pa∣rishioners, but Gawdy, Fenner, Yelverton, and Williams, against him, that the Ordinary might compel him to collate any clerk, for the Rectory is only exempted from the power of the Ordinary, and not the Patron, and that is onely as to charges to be taxed upon the church, for the ordinary attendance in a Visitation, and such like, and Popham said, that although the Church in execution of the charge is spirituall, yet the patron may collate, and a meer lay man, as the King may make a temporall man a Dean, which hath often happened, but all the other Judges were against him in case of the person, which is meerly spritual, but as to the Deanery, they did agree it, for the function is temporall, but yet Williams said, that lay men who have Deaneries, ought to have, and at all times used to have a Dispensation from the Archbishop, and if the Incumbent in this Case should preach Heresie, as the Attorney and Popham said, the Ordinary might correct him, for the parson is not exempted out of his Jurisdiction, but his Parsonage onely, but by Gawdy and the rest, the Ordinary could not meddle with him, for the Parson is priviledged in respect of the place, but the Patron may commission and examine the matter, and thereupon out and deprive him, and so it happened in Coverts Case, as Gawdy and Williams said, wherein the Bishop of Winchester was the Donor of such a Dona∣tive, 13 E. 4.

LEe versus Lacon, 3. Jac. In trespass, the action was Land in the County of Salop, and not guilty pleaded, and the venire facias was made with a space for Salop, but Salop was not named there: And by vertue of that Writ the Sheriffe of Salop impannelled the Ju∣ry, and found for the Plaintiff, and the matter above specified was moved in Arrest of Judgment, to wit, that the venire facias was vici∣ous, and so a mistriall; but by Fenner and Williams it was to be ac∣counted his, if no venire facias had been awarded: And so indeed by the Statute of Jeofailes; for the County, to wit, Salop, is omitted,

and left out, and so the Sheriffe of Salop had no power nor authori∣ty to summon the Jury, because the Writ which is his Warrant is ge∣nerall (to the Sheriff) and not naming of any County: but the Court held it to be the best way to amend it, and they put this dif∣ference: For when the action is laid in Salop, and upon a special plea∣ding, the issue is drawn into a forreign County, there the entry and award of the venire upon the Will is speciall, to wit, to the She∣riff of that County, where the issue arises to be tryed: and in such case a venire facias with a blan••k shall not be good, because it cannot be judged to which of the Sheriffs the venire was to be awarded, and upon that incertainty it shall be naught: but when the generall issue is taken, or the matter is triable in the same County where the action is laid, there the venire facias is awarded generally, and must of ne∣cessity be intended to be the Sheriffe of that County where the action is laid, and cannot be otherwise intended: and for this reason it was but the default of the Clerk which is amendable, and so it was a∣mended.

BAylie versus Moon, Trin. 3. Jacobi. An action of Battery brought * 1.476 in Plymouth Court before the Major and Bailiffs there, and not guilty pleaded: but afterwards the issue was waived, and Judgment was given for the Plaintiff, and a Writ to enquire of damage was a∣warded to the Serjeant of the Mace, that by the oath of twelve, &c. he should inquire: and the Writ was made returnable at the next Court before the Maior and Baylifs. And upon a Writ of Errour brought, it appeared by the Record certified, that the Writ to inquire of damages was taken before the Maior of Plymouth, who was also Judg of the Court, and for that cause reversed; for the Writ war∣rants the inquiry to be before the Serjeant of the Mace, who by the writ for that purpose is made a distinct Officer, and so an inquiry be∣fore the Maior is not warranted by any writ: And so by consequence a Judgment to recover those damages taxed before a wrong Officer to whom the Writ was not directed, is erroneous, which was grant∣ed by the whole Court.

LAxworth versus West, Mich. 3. Jacobi. Trespass brought for the taking of Hay severed from the ninth part of Elthorp in the Coun∣ty of Warwick, the Defendant to part pleads not guilty, and to the residue pleads a devise of the Parsonage made by Lepworth to the De∣fendant at Wapenbury in the same County, and to inable the devise for tithes in L. alledges L. to be a Hamlet in Wapenbury, to the in∣tent that the whole Tithes may pass: and upon a non devisavit, the venn was of Wapenbury, and found for the Plaintif, that T. L. did not devise it, and the other issue of not guilty found for the Defen∣dant,

and moved in Arrest of Judgment that the venu was mistaken, because it was of Wapenbury only, and not of Elthorp, and they of W. could not try a matter in E. And although it was answered, that the Defendant himself by his plea had confessed that E. was but an Hamlet, yet the Court held the venu mistaken; for when the Plain∣tif declares of a Trespass in E. This by generall intendment is presu∣med to be a Village: of which Village the matter which is there in question ought to be tryed: and although the Defendant had alled∣ged Elthorp to be but an Hamlet; yet it was but to inable the devise, and doth not extend to the issue before joyned upon the not guilty for part; for in that issue both parties agree that Elthorp is a Village, and it is a perfect issue taken, which hath not any coherence with the other issue of non devisavit: but if the Defendant had to the whole issue pleaded the devise as his excuse, and had alledged E. to be an Hamlet of W. and that only been in issue there, the venu awarded had been good of W. only; but in this case it was adjudged that the veni∣re was mis-awarded, and that the Plaintif should have a venire facias de novo.

DElves versus Wyer, Mich. 3. Jacobi. The Plaintiff brought an action of Trespasse for breaking his Close, and for cropping * 1.477 200. Pear-trees, and 100. Apple-trees, and damage found to 40. l. And the Court was moved by Richardson, for that the damages might be mitigated, because he produced an Affidavit, whereby it appeared that the party himself before the Action brought, would have took 5 l. but denyed; for the Court said, that they could not diminish the damages in Trespass which was locall, and therefore could not appear to them, and the damages might well amount to 40 l. for cropping of an Orchard, and so Judgment entred.

WOody's case, Mich. 3. Jacobi. Woody brought an action of false imprisonment and Battery against two, who justifie and * 1.478 set forth that London is an ancient City, and that the Maior of London is a Justice of Peace, and that the Defendants were Serjeants of the Mace according to the custome of the City, and that the Lord Maior, to wit, one Lee, commanded them to arrest the Plaintif for causes to them unknown, but to him known, and to imprison him, &c. Walter moved that this Justification was insufficient, because they only shew∣ed that they were Serjeants at Mace duely elected according to the custome of the City; but do not shew the Custome and Authority that they have to make Serjeants, and to arrest, as it is 4. H. 4. 36. in trespass the Defendant justifies, that the Tower of London is within the City of London, and time out of mind, &c. one Court was there used, &c. and that the Plaintif was sued there by J. S. and that hee

was summoned: and upon a nihill returned, a capias issued accord∣ing to the Custome, &c. And that he being an Officer there, did ar∣rest: and the Court ruled him to plead the Custome particularly for holding the Court, and to prescribe, &c. And here it is shewn that the Maior is a Justice of Peace: And it doth not appear whether he did it as a Justice of Peace, or Maior, as 14. H. 7, 8. A Justice of Peace cannot command his servant to arrest one without a Warrant in * 1.479 writing in his absence. And Popham, chiefe Justice, said, That al∣though the Judges knew the Authority of the Maior, by which they arrested men; yet because it did not appear to them judicially as Jud∣ges, it must be pleaded: And a Justice of Peace cannot command his servant to arrest one if not in his presence, which was granted. And Fennor, Justice, said, that the servant is not an Officer to the Maior as he is a Justice of Peace, but the Constable: and Walker also added, that the Plea was, that the Maior commanded to imprison him pre∣sently without shewing any cause, which was held naught; for the maior ought to temper his Authority according to Law. For the Jud∣ges cannot imprison without shewing cause; but them and the Maior both may command an Officer to arrest a man without shewing the cause, for else before he shall be examined he may invent and frame an excuse, and the accessories will flye away: And Williams, Justice, finds that it was incertain for the Plaintif, by what authority he com∣manded it, whether as Maior or Justice of Peace: and his power as a Justice of Peace the Judges knew by common Law; but his power as a Maior they knew not, if it be not shewed by pleading and Judge∣ment.

HƲggins versus Butcher, Trin. 4. Jac. The Plaintif declared that * 1.480 the Defendant such a day did assault and beat his Wife, of which she dyed such a day following to his damage 100 l. And Serjeant Fo∣ster moved that the Declaration was not good, because it was brought by the Plaintiff for a Battery done upon his Wife: And this being a personall wrong done unto the woman, is gone by her death: And if the woman had been in life, hee could not have brought it alone, but the woman must have joyned in the Action; for the damages must be given for the wrong offered to the body of the woman, which was agreed. And Tanfield said, that if one beat the servant of J. S. so that he die of that beating, the Master shall not have an Action a∣gainst the other for the battery and loss of service, because the servant dying of the extreamity of the beating, it is now become an offence a∣gainst the Crown, and turned into Felony, and this hath drowned the particular offence, and prevails over the wrong done to the Mr. before: And his action by that is gone, which Fennor and Yelverton agreed to.

BRown versus Crowley, Pasch. 5. Jac. Action of Trespass brought against Croyley for wounding the Plaintif upon the hinder part of * 1.481 the left legge, being rendred in Latin, super posteriorem partem levis libaei, and the Jury found for the Plaintiff: And Harris moved in Ar∣rest of Judgment; for hee said that these words (levis libaei) made the Declaration vitious for the incertainty; for he said that levis signified light, and it was an improper word for left; and that judg∣ment ought to be respited for the incertainty. And Yelverton argu∣ed that judgment ought to be given for the Plaintiff; for he said, the Declaration was not vitious; for if the Plaintiff had declared general∣ly that he had wounded, broken, or evill intreated him, and had o∣mitted those other words, it had been sufficient, and then the adding of those words which were not materiall, but for damages did not make the Declaration vitious: and he said, that levus leva levum was Latin for left: And whereas he hath said, that he strook him, super posteriorem partem levis libaei, where it should have been (levis li∣baei) it was but false Latin, and the Declaration shall not be made naught for false Latin. And Popham said, that hee shewing upon which part of the body the wound was, were laid only to incense da∣mages; for the Declaration had been sufficient, though they had been omitted: And Justice Fennor agreed to Popham, and he said, it had been judged, that where a man brought an Action against another for calling him strong Theife: and the Jury only found that he called him Theife, but not strong Theif, yet the Plaintiff recovered; for this word strong was to no other purpose then to increase dammages, and Judgement was given for the Plaintif.

VIccars versus Wharton, Pasch. 5. Jac. Viccars brought an action of false imprisonment against Wharton and others, and shews that he was imprisoned two dayes and two nights without meat or drink. The Defendants come and shew that King Edward the 1. by his Let∣ters Patents did incorporate one Village in Nottingham-shire with Bailiffs and Burgesses, and that the King did ordain and make those Burgesses Justices of the Peace there; and that the Defendant was Baili••••, and a Justice of Peace there; and that the Plaintiff did speak * 1.482 divers opprobrious and contumelious words of the Defendant, by rea∣son whereof they imprisoned him: And shews further, that the Bai∣liffs have used from the time of the making their Patent to imprison the disturbers of the Peace, and it was held a naughty plea, for a cu∣stome could not be shewn in such a manner: And Tanfield held in this case, that a man could not prescribe to be a Justice of peace; but Justice Williams held he might prescribe to be a conservator of the Peace. And Tanfield held that the King might grant that all the Burgesses

and their Heires should be Burgesses, which Justice Williams de∣nyed.

HAll versus White, Pasch. 5. Jac. An action of Trespass brought * 1.483 against the Defendant for impounding the Plaintiffs Cattel, the Defendant justifies for Common: And upon that they were at issue in Derby-shire, and the Jurors being sworn, the Bailiff found one Bag∣shaw one of the Jurors, rending of a Letter concerning the said cause, and shewed it to the Judg, and a verdict given by the Jury: And this matter moved in the then Kings Bench to quash the verdict, but denyed by the whole Court, because the Letter and the Cause was not certified by the Postea, and made parcell of it; for otherwise the examination of that at the Barre after the verdict, shall never quash it. And so it was adjudged between Vicary and Farthing, 39. Eliz. where a Church Book was given in Evidence, of which you shall never have remedy except it be entred and made parcell of the Record.

BƲtler versus Duckmonton, Trin. 5 Jacobi. In Trespasse upon a speciall Verdict, the Case was, that no demised Land to a wo∣man, * 1.484 if she should live sole and unmarried, the remainder to John D. bastard in Tail, the Remainder to the Defendant Ro. Duck∣monton in Fee, the woman married with Ro. D. the Defendant the Term expired, Jo. D. Tenant in Tail, in remainder releases to the Husband, and whether this should alter the estate of the Husband, he being Tenant at sufferance was the question, and adjudged by the whole Court, that the Release was void, and it was cheifly void, be∣cause the Release was made to him in the Remainder to take effect, as upon the Remainder, and there was no privity, and he had but a bare possession, and no Freehold, and 10 Eliz. Dier, Lessee for years, sur∣renders, and afterwards the Lessor releases to him, and held a void Release for the reason aforesaid, and 31 and 32 Eliz. it hath been ad∣judged between Allen and Hill, where a Devise was made to the woman for life, if she would inhabite and continue in the house, and he went and inhabited in Surrey, and the Heire released to her, and it was held void, because she was but Tenant at sufferance, and so no privity, but Yelverton and Tanfield, that such estate for life was not determined without Entry, and Yelverton Justice demanded, that when the Husband continued in possession after the Lease determined whether he should be in the Right of his Wife, and so remain Tenant at sufferance, whether he should be in his own Right, or be as an in∣truder, Disseisor, and then the release made to him was good, but no answer was given to him, but Judgement was given that the release was void, and Fennor put this Case, Tenant for life, remainder in Tail,

remainder in Fee, he in the remainder in Fee released to Tenant for life, a void release, because of the mean remainder in Tail, and cited 30 E. 3. and no answer was given to it, and Yelverton said, that if Tenant for life release to him in the remainder in Fee, it is void, be∣cause it shall be void, as a surrender, and this word release, shall not recite as a surrender.

HOldesden versus Gresill Mich. 5 Jacobi. An Action of Trespass brought for breaking the Plaintiffs Close called B. at L. and for * 1.485 taking of two Conies, the Defendant to the whole Trespasse, but the entring in the Close pleads not guilty, and as to the Close justifies, because he Common in the Close called B. for five Cowes, and be∣cause very many Conies were there feeding, and spoiling the Com∣mon, the Defendant in preservation of his Common entred to chase and kill the conies, to which the Plaintiff demurred in Law, and Judge∣ment was given that the justification was naught, for a Commoner cannot enter to chase or kill the Conies, for although the owner of the Soil hath no property in the Conies, yet as long as they are in his Land he had the possession, which is good against the commoner, for if the Lord surcharge the common with Beasts, the commoner cannot chase them out, but the owner may distrain the Beasts of an estranger or dammage feasant, or chase them out of the common, for the stran∣ger hat no colour to have his Beasts there, and also conies are a mat∣ter of profit to the owner of the Soil for Housekeeping, and there∣fore because it appears that the cause of Entry was to chase, and al∣so to kill, which are not lawfull, as against the Lord, who is Plaintiff, therefore the matter of the justification is not good, for if the Lord surcharge the Soil with conies, the commoner may have an Action of case against him for that particular dammage, which is a suffici∣ent remedy against the Plaintiff, upon a full and deliberate considera∣of all the Judges.

JEnnings versus Haithwait, Mich. 5 Jacobi. An Action of Trespass brought, to which the Defendant pleaded not guilty, the Jury found * 1.486 the Defendant Vicar of D. and that he such a day leased his vicaridg to J. S. for three years rendring rent, which J. S. assigned one Acre par∣cell thereof to the Plaintif, and the Defendant was absent severall quarters in one year, to wit sixty dayes in every quarter, but they did not find the Statute of 13 Eliz. & adjudged for the Defendant, for the Statute of the 13 Eliz. is a generall Law, for although it extends but to those which have cure of Souls, yet in respect of the multipli∣city of Parsonages and vicaridges in England, the Judges must take notice of it as a generall Law, and adjudge according to the said Sta∣tute, and so is the Statute of the 21 H. 8. for non-residence.

DRewry versus Dennys, Mich. 5. Jacobi, An Action of Trespass brought against a man and his Wife, and the Plaintif declares, that they did beat one Mare of the Plaintifs, and committed diverse * 1.487 other Trespasses, and upon not guilty pleaded, the Jury found that the Woman beat the Mare, and for the residue they found for the Defendant, and the Verdict adjudged naught by the Court, for it is altogether imperfect, for they have found the Woman guilty of the beating the Mare, and have given no Verdict concerning that for the Husband, either by way of acquittall or condemnation; and the finding the Defendant not guilty, as to the residue, doth only ex∣tend to the other Trespasses contained in the Declaration, and not to the beating of the Mare: And Williams and Cooke Justices said, that where a Battery is brought against Husband and Wife, supposing that they both beat the Plaintif or the Mare of the Plaintif, and up∣on not guilty pleaded, it is found that the Woman onely made the Battery and not the Husband, this Verdict is against the Plaintif, for it now appears that the Plaintifs Action was false, for the Husband in this case shall not be joyned for conformity onely, and there is a spe∣ciall Writ in the Register for this purpose, and is not like a Battery charged upon I. D. and I. S. for there one may be acquitted and an∣other found guilty, and good, because they are in Law severall Tres∣passes.

SAnds and others, versus Scullard and others, Mich. 5. Jacobi. The * 1.488 Plaintiffs brought an Action of Trespass against the Defendants for entring their Close; and Judgement was entred against Dawby one of the Defendants, by nil dicit, Scullard pleaded not guilty, where∣upon a Venire facias was awarded upon the Roll between the parties, as well to try the Issue, as to inquire of the damages: And the Plain∣tiffs took their Venire facias to try the Issue between the two-Defen∣dants, and the two Plaintiffs. And according to that was the Habeas Corpus, and Distringas, but the Plaintiffs knowing Dawby to be dead, took their Record of Nisi prius against Scullard onely; and he was found guilty: And Yelverton moved in Arrest of Judgement, and shewed the Venire facias, and that there was no Issue joyned between the Plaintiffs and Dawby, for Judgment was given against him by Nil dicit; and the Writ ought to have made mention onely of the Issue between the Plaintiffs and Scullard: And their ought to have been an inquiry of damages between the Plaintiffs and Dawby, according to the Award upon the Roll, which is the warrant for the Venire fa∣cias; and it was shewed that the Jury knew nothing of the matter for which they were warned, for they ought to have onely given their Verdict against Scullard and not against Dawby; and it was

likened where two matters are in Issue, and they give a Verdict for one and nothing for the other, it is naught for all: And this was the opinion of the whole Court except Justice Williams, who relyed up∣on 9. Eliz. Dyer, Sir Anthony Cook, and Wottons Case in par∣tition against two, one confessed the Action, and the other pleaded to Issue, and the Venire facias was to try the Issue between the Plain∣tifs and the two Defendants, and it was amended by the opinion of the Court: But marke the difference, for no damages are to be recover∣ed in partition, but it is otherwise in Trespass; and therefore in Cooks Case it was found by the Court, that it was as if a meer stranger to the Record had been named in the Venire facias.

WInckworth against Man, Mich. 5. Jacobi. The Plaintiff de∣clares * 1.489 for a Trespass in one Acre of Land in D. and abuts that, East, West, North, and South; and upon not guilty pleaded, the Ju∣ry found the Defendant guilty in halfe an Acre within written; and moved in Arrest of Judgment, because upon the matter no Trespass had been found, for there is no such moity bounded as the Plaintiff had declared, for the whole Acre is onely bounded by the Plaintiff, containing his Trespass within those bounds, and the Defendant ought to be found a Trespassor within those bounds, for otherwise it is not good; and it is impossible for the moity of one Acre to be within those bounds: But the whole Court except Fenner, were of opinion that the Plaintiff should have his Judgement; for if the Plaintiff lay∣eth his Action for a Trespass committed in one Acre, and the Jury find that onely to be in one foot of it, it is good; and here they have found the Trespass in the moity of the Acre bounded, which is suffi∣cient in this Action, where damages onely are to be recovered, but if it had been in Ejectment, the Verdict had been naught, for it is in∣certaine in what part he should have his Writ of Habere facias pos∣sessionem.

BƲckwood against Beale, Mich. 5. Jacobi, In an action of Trespass it was sayd by the Court, That if a Sheriff execute a Capias, and there is no Originall to warrant it, he is excused it, for he is not to * 1.490 examine whether the Originall be sued out or no: and for this Tre∣wyrmards Case, 38 H. 8. And so if a Bailiff execute a Process made to him by the Steward for damages recovered in the Mannor in a thing in which they had no authority to hold Plea: The Bailiff is excused, and shall not be punished, because he is not to examine the jurisdiction of the Court, 7 H. 4. 27. 22 Ed. 3. & 22. Ass. But if Process come to the Sheriff to arrest J. S. and he arrest J. N. or to make execution of the Goods of J. S. and he make execution of the Goods of I. N. he is a Trespassor; for in this Case he must take no∣tice

at his perill of the Person and the Goods, for when he arrests I. N. or does execution upon his Goods, he doth it without warrant: And so if I. S. sue a Replevin to the Sheriff to replevin his Cattell, and I. S. comes to the Sheriff, and shews him the Cattell of I. N. and saith they are his Cattell, and he makes replevin of the Cattell, he is a Trespassor to I. N. and the Sherif may have an Action of Trespass against I. S. for his false information, for the Sherif must at his owne perill take notice whose Cattell they be, 3 H. 7. 14 H. 4. but if there be any fraud in the matter he may averr that.

MOnrey versus Johnson, An Action of Trespass brought for en∣tring into a mans House, The Defendant pleads that he was a Constable, &c. And it was held by the whole Court that a Consta∣ble may justifie his entry into the House of any man for Felony or Treason.

STrickland against Thorpe, Pasch. 6. Jacobi. Thorpe brought an * 1.491 Action of Trespass against Strickland, wherefore he broke his close the 20. of June 3 Jacobi, with a continuance thereof untill the sixth of November after; and upon a not guilty pleaded, it was found for the Plaintif and Judgment entred, but it was entred nothing of the Fine because it is pardoned: And upon a Writ of Errour brought he assigned for Errour that the Judgment should have been entred with a Capiatur, because the King and Parliament pardoned all of∣fences before the 25. of September, and therefore the Trespass being alleadged to have been continued untill the sixth of November fol∣lowing, onely part of the Trespass was pardoned; and therefore, as to that it should have been a Capiatur; but the whole Court were of opinion that the Judgment was well entred for the first Trespass, which was by force and Armes being pardoned, all that depends on that was pardoned, and the continuance of the Trespass being onely as to the entring and consuming the Grasse is for increase of damages onely, but not for the Kings Fine, for the first entry being only with force and Arms makes the Trespass.

REpps against Bonham, Trin. 6. Jacobi, The Case in Trespass was that a Feofment was made of three Acres to R. Repps and Mary his Wife for their lives, and afterwards to the first, second, and third Son of the body of the sayd Mary; and after to the heirs of the body of the said Mary by the said Richard to be begotten, and they had no Son but one Daughter: Richard levies a Fine of the Land, and Mary dyes, the Plaintif enters, and the Defendant pleads Richards Fine, and adjudged that the Plaintif is not barred by the Fine, for Richard had onely an Estate for life, and the Estate tayle was in the

woman only by the opinion of the five Justices; for they said that the Husband is only named to declare what heir of the body of the wo∣man should inherit: and not any Heir, but such an Heir as Richard her present Husband should beget. And if the limitation had been to the Heirs of the body of the woman by her Husband, and by I. S. to be begotten, the Inheritance had been only in the woman, but by the last words; for if shee had no Heirs by her Husband, and after∣wards marries I. S. the Heirs that shee should have by I. S. should inherit: And they were all of opinion, that the Inheritance was on∣ly in the woman, because the word Heir which makes the estate of inheritance, is annexed only to the body of the woman: but if it had been to the Heirs which the Husband should have got of the body of the woman, there the intaile had been in both, 19. H. 6. 75. And the like Law, if it had been to the Heirs which the Husband should beget of the body of the woman, Little. 82. 6.

HOrn against Widlake, Mich. 6. Jac. An action of Trespass brought wherefore he broke his Close, and spoiled his Grass in D. The Defendant pleads, that in the Close wherein the Plaintiff supposes the Trespass to be done time out of mind, there hath been a foot-way for all people passing in, by, and through the said Close untill such a day, * 1.492 and that such a day the Plaintiff plowed up the said Foot-way, and sowed it with Corn, and laid thorns on the sides of it: And further pleads, that in the said Close, neer the said ancient Foot-way, the Plaintiff, before the Trespass supposed to be committed, left, and set out another Foot-way for all people who would use that new way; which way, since it was laid forth, hath been used by all Foot-passen∣gers; by reason whereof, the Defendant the time in which, &c. went in the way so laid forth unto such a place, &c. which is the same tres∣pass▪ &c. and demands judgment, &c. and the Plaintiff demurs, and ad∣judged against the Plaintiff, because the Plaintiff made the first wrong in stopping up the ancient way, and had assigned a new way for passengers: And therefore the Defendants plea is good by way of excuse as to the Plaintiff; for it is not fit he should punish the Defen∣dant against his own agreement. As if there were a Foot-way through the Close of I. S. over an hedg, and I should remove the hedg into a new place, if passengers in using their way goe over the hedg where it is newly placed and fixed, they shall not be punished for that; for it arises of the Act and wrong of the Plaintiff himselfe: and volenti non fit injuria: As if water run by the Land of M. and M. stop the water-course, so that it surround my ground; if now abate this, hee shall not have an action against me for entring into his Close, because the stoppage was his own Act, and the same law in the principall case. And although the Defendant hath pleaded generally, that the

Plaintiff hath set out a way, and shews not where it is, is not materiall; for that which is common to all cannot be assigned to any particular person, which was the opinion of the whole Court, except Justice Yelverton.

MEtham versus Barker, Mich. 6. Jacobi. An action of Trespass brought, for that the Defendant the first of August, in the fifth yeare, the Plaintifs Close at L. in the County of Suffolke, hath broken, and entred, and spoiled his Grass with his Cattel, &c. The Defendant pleads, that in the time when the Trespass, &c. the free-hold * 1.493 of the Land where, &c. was in Sir Jo. T. And that the Defen∣dant as servant, and by his commandement, hath entred, and put in his Cattell. The Plaintiff replyed, that true it was, that the Free-hold was in Sir John T. But said, that a long time before the Trespasse, &c. Sir Iohn leased the Close to the Plaintiff at will, by reason where∣of he entred, and was possessed untill the Defendant did the Trespass, and traverses without that, that the Defendant by the command of Sir Io. entred, and put in his Cattell; and the Defendant demurred, and ad∣judged against the Plaintiff, for the plea in Barre is good, and in no wise avoided by the Replication; for the Replication must be good only by way of Title: And the Plaintiff doth not intitle himselfe to any good Lease at will; for he doth not alledg indeed any Seisin in Sir Iohn, or any possession in him, out of which a Lease at will may be derived. And although a Declaration may be good to a common in∣tent, and in debt upon a Lease, as 21. H. 7. is, the Plaintiff may de∣clare that he devised. And need not alledg a seisin in himself, when he made the Lease, &c. Yet when a title is made by Barre or Replication, as 2 E. 4. 9. is, that ought to be certain to all intents, because it is tra∣versable, and because the Defendant had made a good Justification in Law, that ought to be answered by the Plaintiff with a good title, to wit, that Sir I. T. was seised, and made a Lease to him at will, which is not so done; but it is all one, as if he should have replyed, that Ro∣bin-Hood in Barnwood stood, without that by the command of Sir Iohn, &c. which observe. And this by the opinion of Fennor, Willi∣ams, and Cook, being only then in Court, and Judgment was given accordingly.

GOodman against Ayling, Mich. 6. Jac. An action of Trespass * 1.494 brought, that the Defendant the 8. of February, 4. Iacobi. broke the Plaintiffs house, and took and carried away one Brasse Chafer of the Plaintiffs, price, 20 s. The Defendant pleads that the house is par∣cell of halfe a yard Land in P. and that it was holden of H. Earl of North, as of his Mannor of W. by homage, fealty, escuage, incertain suit of Court, inclosure of the Park-pale, & rent one pound of Comyn,

and for the Rent behind for three years, and the homage and fealty of Th. P. Tenant thereof; the Defendant as servant of the Earl, and by his command, justified the Entry, and taking, &c. The Paintiff replies, that the house was held of R. Stanley, as of his Mannor of Lee, without that, that it was held of the Earl in manner and form, and upon this they were at issue, and the Jury found it was held of the Earl, as of his Manner of P. by homage fealty, inclosure of the pale rent of a pound of Comyn, and no otherwise. And if it seemed to the Court that it was not held in manner and form, they found for the Plaintiff, &c. And adjudged for the Defendant, for although the verdict did not agree with the plea in manner and form of the tenure, yet it agreed in substance in the point, for which the taking was, to wit, that the Land was holden of the Earl, and that suffices; for there is difference between a Replevin and Trespass: For in Replevin, be∣cause * 1.495 the Avowant is to have return, it behoves the Avowant to make a good Title in all things, but otherwise it is in Trespasse; for there the Defendant is bound only to excuse the Trespass, and there∣fore if there be any tenure it suffices; for if the Lord or Bayliffe in his right distrains for that which is not due, yet he shall not be punished in Trespass, as Littleton, 114. for the manner and form: And 9. H. 7. which mark by the whole Court: and Fleming, Justice vouched the 33, H. 8. Dyer 48. B. where the issue was, whether a Villain re∣gardant, &c. or free: And the Jury found a Villain in grosse, yet it was held good for the substance of the Villianage, and of the issue were found, H. 5. Jac. rotulo, 834.

GOodwin against Welsh and Over, Pasch. 7. Jacobi. The Plaintiff brought an Action of Trespass for severall things against the two * 1.496 Defendants, and declares to his damage, &c. The Attorney for the Defendants, pleads non sum informat, and thereupon Judgment was given severally for the Plaintiff, and Writs to inquire of the damages issued out, and were returned: and it was moved, that the Writs should not be filed, because the Plaintiff at the time of the inquiry did not prove that the goods did appertain to him, but only proved the value of the goods; for Serjeant Nichols took a difference be∣tween an Action confessed, and non sum informat; for in the first case the property of the goods is also confessed to be in the Plaintiff, but it is not so in the other case: for here Judgment passes without the privity of the Defendant, and only for want of pleading, as in the case of a nil dicit, but by the whole Court it was all one. And the Plaintiff is not bound to prove the property in any of the Cases: and the reason is, because the Writ commands only the value to be inqui∣red of, and no more, and that only is the charge of the Jury: And the whole Court were of opinion, that they themselves as Judges, if

they would in such Case might assesse Damages without any Writ, if they would trouble themselves, for the Writ goes onely, because it is known what Damages are, but it is otherwise, when not guilty is pleaded, for then the Trespasse is denyed, which must be proved and tryed by the Jury, and there both the value and property come in proof; and observe, the Judgement is, that he should recover, and if upon a Writ of inquiry he should be bound to prove the property, and fail thereof, it would be in destruction of the first Judgement which cannot b. observe this.

TAilor against Markham, Trin. 7 Jacobi. An Action of Trespass * 1.497 and Battery brought for, &c. The Defendant pleads, that he at the time of, &c. was seised of the Rectory of, &c. where the Battery was supposed in Fee, and that at the time in which, &c. Corn was severed from the nine parts at the place aforesaid, and because the Plaintiff came to carry away his corn, and the Defendant stood there in defence of his corn, and keeping the Plaintiff from taking it away, and the hurt that the Plaintiff had, was of his own wrong, &c. the Plaintiff replies, that it was of his own wrong with the such cause alledge, &c. and the Defendant demurred in Law, and adjud∣ged for the Plaintiff, for that generall replication is good, and doth not behove the Plaintiff to answer the Defendants Title, because the Plaintiff by his Action doth not claim any thing in the Soil or corn, but only damage for the Battery, which is altogether collaterall to the Title, but when the Plaintiff makes a Title by his Declaration to any thing, and the Defendant shall plead another thing in destru∣ction thereof, or if the cause of Action in such Cases, the Plaintiff must reply specially, and not say without such cause, as it is in 14 H. 4. Trespasse brought for taking a servant, the Defendant shews that the Father of him that the Plaintiff supposes to be the servant, held of him in Knights Service, &c. and died seised his Heire, the Ser∣vant being within age, by reason whereof he seised as his Ward, as it was lawfull for him to do, and there the Plaintiff replied that he did it of his own wrong, and without such cause, and disallowed by the Court, because he did not answer to the Seigniory, to wit, that he did that of his own wrong, without it, that the Father of him, that is, supposed to be the Servant, held of him in Chivalry, and the reason was, because the plaintiff by his Action made Title to the Ser∣vant, according to 16 E. 4. and Judgement given accordingly.

ALlbon against Dremsall, Mich. 7 Jacobi. The plaintiff declares * 1.498 in an Action of Trespasse, that the Defendint the twentieth day of February, 5 Jac. did break the plaintiffs Close, at &c. called Sandy Heath, and entered it, and spoiled his grasse, and kiiled took and car∣ried

away a hundred Conies, and also that the Defendant the same day the free Warren of the plaintiff at Sandy aforesaid did enter, and chase without license, and killed fifty Conies, and took & carried them away to his damage of, &c. the Defendant to the whole Trespasse, except the entring and breaking of the Close called Sandy Heath, not guil∣ty, and in Issue joyned upon that, and as to the breaking the Close the plaintiff ought not to have his Action, for he said, that William Lord Russell, and Elizabeth his Wife, were, and yet are seised in Fee, in the Right of his Wife, in a certain peice of Heath, containing ten acres in Sandy close adjoining, & on every side separated from the place called Sandy Heath & that they, and all those whose Estate they have in part, in that peice of Heath, have used to have for themselves and Farmers of the said peice of Heath, and for their Servants a passage un∣to the said peice of Heath, and from the said peice, in, by, and through the said Close called Sandy Heath, in which, &c. the whole year at their pleasure to take and receive the profits of the said peice of Heath, and the Defendant further sayes, that long before the Trespass supposed to be committed, very many Conies were wande∣ring in the said peice of Heath, and divers Cony holes were there made, in which the said Conies did delight to live in, and at the time in which, &c. they were in the said peice of Heath, eating the grasse growing there, and the Defendant, as Servant to the Lord Russell, and by his command, the time in which, &c. in, by, and through, the said Close, in which, &c. towards, and unto the said peice of Heath, did walk over to hunt, and take the said Conies, in the said peice of Heath, then being and feeding, as it was lawfull for him to do, which walking in, by, and through the said Close, in which, &c. for the cause aforesaid, is the same breaking the Close, and entring thereof, whereof the Plaintiff complains, and averres that the place by which the Defendant walked for the cause aforesaid to Sandy Heath, in which, &c. was the next passage, by which he could go to the said peice of Heath; to which the Plaintiff demurres; and adjudged for the Plaintiff, for a passage, is properly a passage over the water, and not over Land, and the Defendant ought to have prescribed for the way, and not for the passage, for he ought to have observed the u∣suall words, and such as are known in the Law for a prescription, and u∣sage is for a way, and not for a passage, and see 32 Assis. 58. and 11 H. 4. 82. b. Secondly, the prescription is not good, because he doth not shew from what place, nor to what place the passage or way is, for although a way be in grosse, yet it ought to be bounded, and cir∣cumscribed to some certain place, especially when it appears to ly in usuage, time out of mind, for that ought to be in a place certain, and not in one place to day, and another to morrow, but constant and perpetuall in one place. Thirdly, the Plea in Barr is not good, be∣cause

he doth not shew what manner of passage it was, whether a Foot-way, or Horse-way, or Cart-way, and therefore it is altogether incertain, and Judgement given accordingly.

TRoughton against Gouge, Mich. 7 Jacobi. An Action of Trespass brought, for entring into the Plaintiffs Close, called Wild Marsh, and for mowing and cutting five Loads of hay, to his damage of, &c. the Defendant saith, that the Close aforesaid did contain twelve A∣cres, whereof a long time before the Trespasse done, and at the time the Mayor of, &c. of Lincoln were seised in Fee, and being so seised, * 1.499 Leased it to the Defendant for years before the Trespass committed, by reason whereof he entred and was posaessed untill the Plaintiff claimed by Deed of the Maior, &c. for life, whereas nothing pas∣sed and entered, and the Defendant the time aforesaid re-entred as it was Lawfull for him to do, the Plaintif replied, that the Close in which the Trespass is supposed to be done, contained one Acre, and three Roods, and abutts it East, West, North, and South, and one of the abutnals were upon the twelve Acres mentioned in the plea in Barr, and concludes it is another Close, the Close mentioned in the Plea in Barr, containing twelve Acres, whereupon the Defendant de∣murres, and the Court were of opinion at the first opening the matter, that the replication was not good, because it answers not to the mat∣ter supposed in the Barr, for when the Plaintiff in his Declaration gives the place a certain name as he hath, and the Defendant by his Plea in Barr agrees, the place as here he doth, to wit that the Close aforesaid, to wit, Wild Marsh, is the inheritance of the Mayor, &c. and he as Lessee to them for years makes a Title to himself, the plain∣tiff ought to answer to the Title, or avoid it, which he doth not by his replication, for the plaintiff by that indeavors to assign a new place, which he cannot do when they are agreed of a place before, and there∣fore he ought to have pleaded, that there were two Closes called Wild Marsh, the one containing twelve Acres, as the Defendant had alledged, and the other containing one Acre, and three roods, whereof the Plaintiff was seised, and that the Close where the Plaintiff suppo∣sed the Trespass to be committed, and the close called Wild Marsh, contained one Acre, and three roods, which mark: and see 21 E. 4.

LEe against Atkinson and Brooks, Hill. 7. Jacobi. An Action of Ba••tery brought against the Defendants at London for assaulting the Plaintiff, to wit, in such a Parish and Ward, and beate, wounded, and evill intreated him, to his damage of an hundred pounds; the Defendant as to the force pleads not guilty, and as to the residue, that Atkinson the time in which, &c. at Gravesend in the County of Kent

was possessed of a Gelding, and being so thereof possessed, the Plain∣tiff the time in which, &c. at Gravesend, &c. came to the Defendant to hire the Gelding for foure shillings for two dayes, in which the Plaintiff would ride from Gravesend aforesaid to Nettlebed in the same County, and from thence to Gravesend within the sayd two dayes, by reason whereof the Defendant for the consideration afore∣sayd, the time in which, &c. lent the Gelding to the Plaintiff, who had it, and in a direct line rode for the space of a mile to Nettlebed aforesaid upon the Gelding, untill the Plaintif, the time when, &c. intending to deceive the Defendant of his sayd Gelding, went forth of his way to N. and rode towards London, by reason whereof, At∣kinson in his owne right, and Brook as his servant, came to the Plaintif, and at the same time in which, &c. required the Plaintif then riding upon the sayd Gelding towards London, to deliver the Gelding, which he refused to doe, by reason whereof Atkinson in his owne right, and Brook as his servant, and by his command the time in which, &c. to repossess himselfe of the sayd Gelding, layd hands upon the Plain∣tif and took him from the Horse back, and would have taken the Gelding from the Plaintif, by reason whereof the Plaintif did by force and Armes assault the Defendant, and by strong hand kept the Gelding, by reason whereof the Defendant did defend the possession of the Horse against the Plaintif, as it was lawfull for him to doe: And further say, that if any damage hapned to the Plaintif, it was of his owne assault, and in defence of the possession of the Gelding, and Traverses that he was not guilty in London, or any where else out of Kent, &c. and the Plaintif demurs, and adjudged for the Plaintif, for the Battery is confessed and did arise from the evill behaviour of the Defendant, for it appeared by their owne Plea in barr, that the Plaintif had hyred the Gelding for two dayes, and that they within these two dayes disturbe the Plaintif of his possession of the Horse, and thrust him off his back, which was not lawfull, for the Plaintif had a good speciall property for the two dayes against all the World; and although the Defendant pretends that the Plaintif had misbe∣haved himselfe in riding to another place then was intended, yet that was to be punished by an Action of the Case, but not to seise the Horse: Which observe.

KNieveton against Roylie, Mich. 8. Jacobi. An Action of Tres∣pass brought for breaking the Plaintifs Close called G. in Wood∣thorpe in the County of Derby, to the damage of, &c. The Defen∣dant pleads that the Close was known as well by the name of G. as by the name of D. And that it was and had been, time out of minde, parcell of the Wigenworth, and pleads his freehold in the Mannour: The Plaintif maintaines his Declaration, and traverses that the place

where, &c. was not parcell of the Mannor, and upon this they are at Issue, and a Venire facias awarded of Woodthorpe onely, and mov∣ed in Arrest of Judgment by the Defendant, the Verdict being for the Plaintif, and urged that it was a mistryall, for the Venire facias ought to have been as well of the Mannor as of Woodthorpe, for al∣though the parties be agreed, that the place where the Trespass was committed lyes in Woodthorpe, yet that being supposed indeed to be parcell of the Mannor of Wigenworth, the Venu of the Mannor by intendment have a more perfect and better knowledge of it then the Villiage of Woodthorpe onely, which was granted by the whole Court, and a new Venire awarded to try the Issue anew.

DOwglas against Kendall, Mich. 8. Jacobi. The Plaintif declared, that the Defendant the 21. of January, 6. Jac. by force and Arms thirty Loads of Thornes of the Plaintifs ready to be carryed, in a place called the Common wast at Chipping-warden in the County of Norfolk, did take and carry away, to the Plaintifs damage of ten pounds, the Defendant pleaded not guilty to all but to ten Loads; and as to them that the place where, &c. contained one Acre of pasture, and that one William Palmer was seised in fee of a Messuage and three quarters of a yard Land in C. aforesayd, and that he and those whose estate he had in the sayd Messuage, &c. time out of minde, were used to have for their farmers, &c. all the Thornes grow∣ing upon the sayd Acre of pasture to their use to be imployed and spent upon the sayd Messuage, &c. as appurtenant thereunto; and the sayd ten Loads were growing and unjustly cast downe by the Plaintif upon the sayd Acre of wast, and being ready for them to carry, the Defendant as servant to Palmer, and by his command, took them and carryed them away and imployed them upon the House, as it was lawfull for him to doe; the Plaintiff by protestation that Pal∣mer and such, &c. time out of minde, had not the Thornes grow∣ing upon the sayd Acre of pasture parcell of the wast, and that Sir Richard Saltonstall was seised of the Mannor of Chipping-warden, whereof the common wast was parcell in fee; and that he the 21. of January, the sixth yeare of K. James, granted license to the Plaintif to cut and carry away thirty Loads of Thornes mentioned in the Plea in barr growing upon the Wast, by reason whereof they cut those ten Loads of Thornes, growing upon the wasts, and they were ready to be carryed, by reason whereof they were possessed thereof untill the Defendants took them away; and upon this Replication the Defen∣dants demurred; and adjudged against the Plaintif, and there was a differance taken by the Court, where a man claimes reasonable Esto∣vers in anothers Soyle, and where a man claimes all the Thornes in anothers Soyle, for in the first case if the Owner of the Soyle shall

cut downe the Thorn••s first, he that hath title to the Estovers can∣not take them, for the property and interest of all the Thornes con∣tinues * 1.500 in the Owner of the Soyle, and the other hath onely Common there, and if the Owner of the Soyle cut them downe all, he that should have the Estovers shall have an Action upon the Case onely, and not an Assise, for when all the Wood is destroyed it cannot be put in seisin, as the Abridgement of the Assise is, fol. 21. And so it appeares by Sir Thomas Palmers Case, Co. lib. 5. fol. 25. And if one grant an hundred Cords of Wood to be taken at the election of the Grantee, and the Grantor or an Estranger cut downe the Wood, the Grantee cannot take the Wood but must supply his Grant out of the residue, for the Grantee hath but an especiall interest in part of the Wood and not in all, but now in this Case the Defendant in right of Palmer claimes all the Thornes, in the name of all the Thornes grow∣ing upon the sayd Acre of pasture, and if he hath all, Sir Richard S. cannot have any, and so by consequence cannot license the Plain∣tif to cut any; and so the whole interest is in Palmer, and it is not in the nature of Estovers, for Estovers is but parcell of the Wood, and that to be taken to a speciall purpose; and in this case it was a∣greed, that although the Defendant had alledged an imployment of the Estovers, yet since the Defendant had claimed all the Thornes and Trees, the imployment is not traversable, for he that hath the generall interest and property in Trees by custome or prescription, cannot be restrained but may use them at his pleasure; And see 10 E. 4. 2. and adjudged accordingly.

MAssam against Hunt, Mich. 6. Jacobi. A Copi-holder of a Messuage and two Acres in fee. The Lord grants and confirms the Messuage and Lands with the appurtenances to the Copy-holder in fee: and whether he to whom the confirmation was made shall have by the usage as a Copy-holder common in the wasts of the Lord, was the question, and adjudged he should not; for the Copy-holder * 1.501 by that confirmation is extinct and infranchiz'd, for the words, with the appurtenances will not create a common; for at first the Common was gained by custome, and annexed to the customary estate, and is lost and perished with that; for Common of its own proper nature is incident to a Copy-hold Estate.

FArmer against Hunt. Hilar. 8. Jacobi. An Action of Trespasse brought for chasing the Plaintiffs Cattle in such a Close; the De∣fendant justifies taking damage fesant in his Free-hold: The Plaintiff replies, and shewes one grant of Common in the place where, &c. by the Defendant to the Plaintiff, and that afterwards the Defend∣ant had erected a reek of Corn, and the Plaintiff put in his Beasts to

use his Common, and the Defendant chased them: But note, that * 1.502 the Plaintiff in his replication in pleading the grant of the Common by Indenture, did omit the bringing it into Court. And by all the Judges the chasing of the Cattell by the Defendant is not lawfull, for by such means he may defeat his own grant; for by the grant of com∣mon in such a place, the Grantee may use the whole Common: And then when the Grantor erects a Reek of Hay upon part of the Com∣mon he had granted, he will diminish the Common, and tend to the enfeebling of his Grant, which ought not to be; for the Beast ought to range over the whole place, and eate the Hay without doing any wrong; for the wrong did first begin in the Grantor, who is the De∣fendant, of which he shall never take advantage. And whereas hee hath erected one Reek of Corn, hee may erect twenty, and so the Beasts shall have no liberty of pasture there; but because the Plaintiff did not shew to the Court the Indenture of the Grant, which is the ground of his title; for that very cause judgment was given against the Plaintiff.

DƲrant against Child, Hillar. 9. Jaco. An Action of Trespasse brought for chasing the Cattell of the Plaintiff, and shews what Cattell, and that the Trespasse was done at B. to his damage of, &c. The Defendant justifies the chasing in one Close called M. in B. which is his Free-hold, and that the Cattell were there damage fe∣sant. The Plaintiff replies and shews, that one B. is seised of one Close called Catley in D. in fee, and made a Lease thereof to the Plaintiff * 1.503 for years: and that the Defendant is seised of one Close called Fursey in Fee, which lies next adjoyning to the Close called Catley; and that the Defendant, and all those whose Estate he hath in Fursey Close, have used time out of mind to repair the Fence and Hedges betweene Catley Close & Fursey Close, which Fursey Close doth next adjoyn to the Close called M. where the Cattel were chased, and shews that the Plaintiff put his Cattell in Catley Close to feed the Grass there, which by default of inclosure escaped into Fursey Close as above; but he said that between Catley Close and Fursey Close, there is a little Brook; which Brook at the side of Catley close had a banck next adjoyning to it; which banck the Lessor of the Plaintiff, and those whose Estate they have, &c. have used time out of mind, &c. to repair. And that the Brook at the side of Fursey Close had another Brook next adjoyn∣ing, which the Defendant used to repair, and shews because the Plaintiff had not repaired the banck; on the side of Catley Close the Cattell did escape into Fursey Close, and stayed in the Close called M. By reason whereof the Defendant chased them, as it was lawfull for him to doe; whereupon the Plaintiff demurres, and adjudged for the Plaintif; for the Defendant had pleaded a good Barre, and the

Plaintif had replyed a good replication, and had removed the fault from himselfe, and laid it upon the Defendant by his negligent inclo∣sure between Catley and Fursey: and the rejoynder doth not confess and avoid the replication, but perplexes the matter by adding one point of prescription on the Plaintiffs part, that he ought to repair one banck between Catley and Fursey, upon which an issue could not be taken, for then two prescriptions should be an issue together, which cannot be, no more then two affirmatives, as the 5. H. 7. 12. And also the matter contained in the Records doth not answer the matter contained in the Replication, but by way of Argument only: And whether that be true, is no matter in evidence against the Plain∣tiff, who is bound to prove his Replication true. For the Plaintiff saith, that Catley and Fursey doe lye together, that is, without any space between them. And the Defendant in his Rejoynder saith, there is a banck between Catley and Fursey, which if it be so they do not lye together: but the Defendant ought to have traversed the pre∣scription alledged by the Plaintiff, which had made an end of all the matter, which observe was by the opinion of the whole Court.

SƲtcliffe against Constable, Trin. 10. Jac. Ch. Constable 32. Eliz. was seised in fee of the Mannor of East-hatfield in the County of * 1.504 Yorke: and by his Indenture infeoffes H. Remingham, paying for cer∣tain Lands parcell of the Mannor, 60 l. at two Feasts, with a clause of Distresse, if it be behind by the space of 14. days. Ch. 43. Elizab. by Indenture bargains and sells the 60 l. Rent to the Plaintiff, which was inrolled, by reason whereof he was seised of the Rent for the life of Ch. and being so seised, loses that part of the Identure sealed by Re∣mingham; which the said day, to wit, the 24. Novemb, 44. Eliz. came to the hands of the Defendant, who by Force and Armes tear∣ed the seale of the Indenture against the Peace, &c. to his damage of 400 l. The Defendant pleads that Ch. hath not granted the Mannor of E. to Remingham, paying the rent, &c. in manner and form, and the Plaintiff demurres upon this Plea: And it was argued that the Bar was good, which is a direct traverse to the title of the Plaintiff, to destroy the ground of the Plaintiffs action; for if no rent were gran∣ted, then the Indenture concerning which the Plaintif complains, did not belong to the Plaintiff; for it passes not to the Plaintiff, but as an incident to the second Grant, of necessity to make good his title: As the Lord Buckhursts Case, Co. 1. & 7. E. 4. 30. in assize of rent, the Plaintiff made his title by deed of a rent charge, it was a good plea to say that nothing passed by the grant, because the issue is taken upon the speciall matter, and not the generall; but in an Assize brought of an Office, it is no plea to say there is no such Office, for that amounts to no more but that he hath not disseised him, 45. E. 3. In trespass

for taking away of writing, it is no plea to say that he never had such a writing, but must plead not guilty: So in an Action of Trespass for Goods, it is no Plea to say, that the property of them was to an E∣stranger, and not to the Plaintif, because by that plea hee denies not but that the Plaintif was in posaession, which is sufficient to maintain the Action, 20. H. 8. 28. which books prove that the Plea in Bar is not good, for the Defendant destroys the Plaintifs Action, but by way of Argument: And the rent by such Action is not demanded, but da∣mages for tearing the Indenture, and so the Title of Rent is not in question, and exceptions were taken to the Declaration. First, the Action was brought for tearing the Counter-part, by which the Rent was not created: And the Indenture is not expresly granted to the Plaintif, but the rent of 60 l. only is bargained and sold; and by that the counter-part that pertains to Remingham, doth not pass to the Plaintif as an incident; for it is not the Originall Deed by which at first the rent was reserved, which was granted by all but the Cheife Justice, for he said that the counter-part waited upon the interest, and was good evidence for that: Secondly, the Plaintif had not aver∣red that Ch. for whose life the Rent was granted, was alive at the time of tearing the Indenture; and if C. was dead, the Indenture pertained to the Defendant of right, as Heir of Ch. for so much ap∣peared by the Plaintifs own shewing, which was granted. And third∣ly, the Plaintiff shewed not that ever hee was posaessed of the Deed but by way of Argument, to wit, that he casually lost it, which is not sufficient; for none shall have trespass but he who is in actuall posaessi∣on, which was also granted by the Court. Fourhly, the counter-part whereof the Plaintif complains, by the Plaintifs own shewing, con∣tained as well a warranty as the rent reserved: And therefore with∣out a special gift made of that Deed by Ch. to the Plaintiff, that Deed doth not pass by Law to the Plaintiff, as it is adjudged in Lord Buck∣hursts Case. Fifthly, if Ch. the Father be dead, then the writing hath lost his force, as to the rent; for by his death the rent is determined, and therefore of necessity the Plaintiff ought to averre the life of Ch. For no Action lies for a Deed that is determined, and for these reasons the Plaintiff did discontinue his Action.

An Action of Trespass was brought for entring into a mans House, and continuing there divers dayes, &c. And after a Tryall and verdict for the Plaintiff, Yelverton moved in Arrest of Judgment, and shew∣ed for cause that the Plaintiff had declared with a continuando for breaking his house, which he could not do; for the entring is one act * 1.505 done and ended at the going out again: And therefore if he re-enter, it is a new Trespass, and the continuando is only alledged for the ag∣gravation of damages, 2 R. 3. 15. 10. E. 3. 10. 16. E. 3. 24. That a continuando cannot be for breaking the House: but Doddridge and

Haughton Justices, the rest being silent, were of opinion that it might be alledged, that a continuando; for although it might be that if hee went forth, and re-entred, it should be a new Trespass: but if upon his first Entry he continued divers dayes, it might be alledged with a continuando: And see for that Mich. 38. El. in the Common Pleas, fol. 118. If a Disseisee re-enter he shall have an Action of Trespass a∣gainst the Disseisor with a continuando: And so is Fitzherberts Na∣brevium 91. L. that a continuando may be laid as well for breaking a House as eating the Grass, and so is 10. E. 3. 10. and 20. H. 7. 30. by the opinion of Gapley.

GEush against Mynne, Pach. 11. Jacobi. An Action of Trespass brought, wherefore by Force and Armes, the Close of the Plain∣tiff did break, &c. The Defendant justified, by reason there was a re∣port * 1.506 that a Vermine called a Badger was found there to the great da∣mage of the Inhabitants; by reason whereof he uncoupled his Bea∣gles in the place where, &c. and hunted there, and found the Badger, and pursued him untill he Earthed in the place where, &c. by reason whereof he digged the ground, and took the Badger, and killed him, and afterwards hee stopped up the Earth again, which is the same Trespass, and demands Judgment; whereupon the Plaintiff demurs: And upon reading the Record, Scamber of the Inner Temple was for the Demurrer, and that the Defendant could not justifie as this case was. And first, he was of opinion that the Common Law warrants hunting such noysome Beasts, although it be in the Lands of another, because it is good and profitable to the Common-wealth that such hurtfull Beasts should be extirpated, according to the 8. E. 4. 15. And Fishermen may justifie their Nets upon anothers Land, 13. H. 8. 16. 22. H. 6. 49. A man may justifie entring into a house to serve a Subpaena, 3. H. 6. 336. A man may justifie the entring into anothers Land with the Sheriff to help him to distrain, but otherwise it is for things of pleasure, as 38. E. 3. 10. B. You cannot justifie the Entry when your Hawk hath killed a Pheasant in anothers Land: and so for hunting of Hares or Conies in the Free-hold of another: but although the Law allows and permits such Entries as aforesaid, yet the Law requires, that such things shall be done in an ordinary and usuall man∣ner, as 12. H. 8. 2. A Commoner cannot digge the Land to make Trenches, although it be for the benefit of another; and this is confir∣med and explained by the Statute of 8. Eliz. cap. 15. For although that Statute gives reward for the killing of Vermins; yet the Statute further saies, that it must be with consent, and with reasonable En∣gines and Devices, 2. R. 2. Barr. 237. Grant of Fish in the Pond; one cannot dig the Land and make a Sluce, but must take with them Nets: And so, if a man grant to me all his Trees in such a place, I

I cannot grub up the roots out of the earth, if there be any other way to take them, but if there be no other way, then it is otherwise, as 9 Ed. 4. 35. a. A grant to put a Pipe in my Land, and afterward it is stopped, I may dig to mend it by the opinion of the Court, and there∣fore there being an Ordinary course, to wit, hunting, to kill the Badger, the digging for that is unlawfull, and the Action will well ly Mich. 36. and 37 Eliz. 60. Nicholas Case expressely for a Fox, and Fenner held it was not lawfull to break a Hedge in the pursuit.

MIles against Jones, Pasch. 11 Jac. Miles brought an Action of Trespasse against Jones, wherefore by force and Arms his goods, * 1.507 &c. The Defendant pleads that the Plaintiff, 5 Jacobi. acknowledged a Recognisance of 100. l. at Mich. at which day he did not pay it, and that two years after the Recognisance was extended upon his goods, because the monies were not satisfied at the day, nor at any time af∣ter, the Plaintiff replies, that they were paid in the sixth year of James, and desires this, that it may be inquired onely by the Countrey, and the Defendant likewise, and upon the Triall, it was found for the Plain∣tiff, and it was new moved in arrest of Judgement, by Goldsmith, that there was no Issue joyned, for an Issue ought to be joyned upon a thing alledged by the party,

DOyly against White and Webb, Trin. 11 Jacobi. Doyly brought an Action of Assault, Battery, and imprisonment, of his wife, a∣gainst White and Webb. The Defendant pleads a speciall Justification, to wit, that in November, 2 Jacobi, an Action of Trespass was brought in the Common pleas, by one A. against Julian Goddard, and upon the generall Issue it was found for J. G. and Judgement given for her, and afterwards, and before Execution, J. G. takes to Husband the now plaintiff, and afterwards brings a Writ of Error in the Kings Bench, and upon a Scire Facias against the said Julian, the Judge∣ment in the Common pleas was reversed, and costs given to A. the plaintif in the Writ of Error, and aftewards a Capias ad satisfaciend. was directed to the now Defendants to take the said I. G. by Force of which, the said Defendants took the woman of the now plaintif, with an averment that the said I. G. and the Wife of the now Plaintif, were one and the same person, and the plaintif demurres upon this plea, and Yelverton moved, that this justification was not good for di∣vers causes; first, when the Sherif is to execute a process, he is to do it duly, and upon the right person at his perill, and for that see 11 H. 4. 90. b. If the Sherif take the goods of another in Execution, * 1.508 he is a trespassor, 5 E. 4. 50. a. If a Capias be to take I. S. and there be two of the same name, he ought to look to take the right man at his perill, and as he ought to take notice, so he must pursue his au∣thority, and for this see 10. E. 4. 12. b. if a Capias issue out against I. S. the Son of A. and he take I. S. the Son of B. false imprisonment lies against him, and in a Case when his Warrant is against I. G. there is no such J. G. for by her marriage with the Plaintiff she had another name, and he is therefore a Trespassor for the taking of J. Doyly, and his averment cannot help him, because it agrees not with his Warrant, and so cannot be intended to be the same person, but if the variance was in the name of Baptisme onely, it would be otherwise, and se∣condly, although the party had admitted her to have the same name, yet the Sherff in pleading had taken expresse Conusance of the con∣trary, and had made it appear to the Court, that it was not accor∣ding to his authority, and therefore he shall be punished, but the whole Court was of a contrary opinion, for first, the Scire facias was according to the Judgement in the Common Pleas, and well then might all the subsequent Processe be according in course of Law, but if the Husband had come upon the Scire facias, and shewed how that she was covert, then the Action ought to be against both of them; and secondly, the parties themselves in all the proceedings through∣out, have all admitted that she is the same person, and that she had the same name, and therefore this differs from the 10 E. 4. 15. and therefore they shall be concluded from saying the contrary, and al∣though the Sheriff had shewed the marriage, that was but a bare alle∣gation,

and suggestion of the Sheriff, and it appears not judicially whether it were so or no; and thirdly, it would be dangerous for the Sherif to return a Non est inventus, for because the parties have admit∣ted her name to be so in all the proceedings, the Sheriff shall be estop∣ped also, as the 3 H. 7. 10. and then an Action of the Case would ly upon the false Return, or if the Woman should be in the company of the Sheriff, and the party shew her to the Sheriff, she might escape.

CArrill against Baker, Trin. 11 Jacobi. The Plaintiff brough an Action wherefore by force and Arms, he entred into his War∣ren, and digged his Land, and chased his Conies, and took them, the Defendant pleads to all, except to the entring the Warren, chasing the Conies, and digging the Land, not guilty, and as to the entring of the Warren, chasing of the Conies, and digging the Land, he pleads an especiall Justification, to wit, that he had Common there time out of mind, and because the Plaintiff stored the Borrows there with Conies, and made new holes, by reason whereof the Defendants sheep feeding there, fell into them to their great damage, the Defendant did with a Ferret chase the Conies, and stopped up the holes with the earth digged out, &c. and upon that Plea, the Plaintiff demurred, and George Crook was of opinion that it was not a good justification, and the Question was single, whether a Commoner might drive out Co∣nies which surcharged the Land, and he conceived he could not, for the Freehold and possession of the Land is in the Terr-Tenant onely, and the Commoners cannot intermeddle with it, for a Commoner hath onely the grasse of the Land, and not absolutely neither, to do with it what he pleases, but onely to take it with the mouths of his Cat∣tel, and for this see 12 H. 8. 2. a. and 27 H. 6. 10. and 13 H. 8. 16. the espleas in a Quod permittat is alledged in taking the grasse with the mouths of his Beasts, and for that see 22 Assis. 48. 10. E. 4. 4. and 46 Ed. 3. 23. if a stranger put in his Cattell, the Com∣moner cannot have an Action of Trespass, and 13 H. 8. 15. ruled, that if a Commoner dig the Land to make a trench, he is a trespassor, but he may drive out or distrain for doing damage, and 15 H. 7. 12. 13 H. 7. 13. and 12. H. 8. 2. a. because after a manner he hath interest in the grasse, which is spoiled and consumed by the Cattell of the stranger, but although he may drive out and distrain the Cattell of an estranger, yet he cannot meddle with the Lords Cattel, or the Terr-Tenants, although there be more then reasonable, as in Fitzherberts Na. brev. 125. D. and 8 E. 3. 30. if the Lord surcharge the Common, The Commoner may have an Assise against the Lord, and if he be a copy-holder, he shall have an Action of the case, 9 Rep. 112. but the Lord may distrain H. 9. Ja. Kings Bench, a prescription for a

Commoner to kill Conies of the Lords is not good, and he cited Pasch. 43 Eliz. Kings Bench rotulo. 234. Belly and Laughorns Case, the Lord may use the Sale as he pleases, but as his Case is the Commo∣ner although Tenant of the Land, cannot kill the Conies with his Ferret, For a free Warren in such a precinct, is a charge upon the Land, in what hands soever it comes, but if he hath a Warren ad∣joyning, and the Conies come into the Lands of another, out of the Precinct, then he may kill the Conies, and he cited Boslers and Hardies Case in the Common Pleas, and for an express authority he cited Old and Conies case, Hill. 29 Eliz. and Sir Robert Fitcham he was against it, and he agreed he could not kill the Conies, but as to the dig∣ging he took this difference, if a Commoner makes any thing de novo in the Land, he is a Trespassor as it is adjudged in the Case of a trench before, and the like; but if a commoner amends and reforms a thing abused, it is no Trespass, and therefore, if the Land were full of Mole hills, he may dig them down, 13 H. 8. and 42 Assis. if the Lord make a Hedge the commoner may pluck it down, 23 E. 3. 6. a. See if the Lord make a Pond in the Land, the commoners may dig and let the Water out, and therefore holes that were made long, in a hurt and Damage to the Land, the commoner may put the earth dig∣ged out, again into its place. Secondly, the Defendant hath shew∣ed that the Cony holes were made by the Plaintiff himself, and he shall never take advantage of his own wrong: and Thirdly, the Law will allow every man to preserve his inheritance, and it cannot be preserved any other way, for if he should bring his Assise, yet he in that shall recover but Seisin, and no Reformation of the Trespass, and wrong done, and the opinion of the Court seemed to incline for the Plaintiff, and Doddridge Justice said, that a Lord or his Feoffee may make new conie-Borrows lawfully, for they are necessary for the preservation of the conies, but one fault found by Justice Haughton, in the pleading nothing was done, for the Plaintif declared for entring into his Warren, the Defendant pleads to all, but the Warren digging, and chasing not guilty, and as to the digging and chasing, he justifies for common here, but answers nothing as to the Warren, neither by con∣fession or traverse, and therefore all was discontinued, as Herlacken∣dons Case is, Co. 4. Rep. and to this the whole court, Fleming being absent agreed.

WAldron against Moore, Trin. 11. Ja. The Plaintiff brought an A∣ction of trespass against Moore, wherefore his Close called Ger∣leford at Rentesbury in the County of Devon, by force and Arms hath broken and entred, &c. The Defendant pleads that a long time be∣fore the Trespass was supposed to be done, one John W. was seised of three hundred Acres of Land in R. aforesayd, of which the place in

question called G. is parcell, and that 30 H. 6. the sayd John Whi∣thing, reciting that whereas N. de la moore, 31 E. 1. the Plaintiffs Ancestor, Son and heire of H. de la Moore, grants to William de la Moore, Corsum aque, which runs from W. thorow the middle of the Land of the sayd M. And shews further, that by meane discents it discends to the Defendant, &c, and so justifies: The Plaintiff replies if W. S. was seised of the place where, &c. and made a Lease thereof to him for yeares; and traverses that the three hundred Acres of Land were parcell, and Issue joyned upon that, and found for the Plaintiff; and it was moved in Arrest of Judgement, that the Defen∣dant had not made any answer to the Plaintiff, and so no Issue joyn∣ed; for the Plaintiff layes the Trespass in G. in L. the Defendant sayes he was seised of three hundred Acres, of which the place, &c. was parcell, but he conveys no title to himselfe, but by a course of water thorow the middle of the Land of M. but whose Land that was it doth not appeare, and is another thing; and therefore an Issue upon that which the Defendant doth not claime is voyd, and al∣though Issue be joyned yet it is not helped by the Statute of Jeofailes of 18 Eliz. or 32 H. 8. for it is as no Issue when it is of a thing not in question, but if the Issue had been of a matter in question, al∣though ill joyned, yet it is ayded as Nichols Case is, 5 Rep. 43. up∣on payment pleaded without Deed: And Doddridge and Crooke, Justices agreed to that, but Haughton seemed to incline that it was an Issue, and so helped by the Statute.

FƲller against Pettesworth Knight, Mich. 11. Iacobi. Fuller brought * 1.509 an Action of Trespass against Pettesworth and his Servant, for breaking his Close, and taking one Cow in D. in the County of B. One of the Defendants plead not guilty, the Servant pleads that the Plaintiff holds of Sir Peter P. as of, &c. in the County aforesayd; and for services behinde, by the command of his Master, he seised the Cow, &c. The Plaintiff traverses, &c. and one Venire facias was a∣warded out of both the Villiages, and being found for the Plaintiff, it was new moved in Arrest of Judgement by Finch of Grays Inne, that two Venire facias ought to have been awarded, because the Issue is of things in severall places, for if there be severall Issues in one place, one Jury shall be onely Impannelled, but if in severall places for severall things locall, severall Juries shall be, but the whole Court held that one Jury onely should be impannelled, and one Venu onely should be awarded out of both the places; and it is all one as if it had been in one place, but it had been otherwise if in severall Coun∣ties, as 41 Eliz.

DAme Petts Case, Mich. 11. Iacobi. In an Action of Trespass brought by the Lady Petts, upon not guilty pleaded, the Jury be∣ing at Bar, the matters following came in question upon the evidence by Haughton and the other Justices: If A. be seised of a great Close, where, &c. and a Stranger enter and occupy part of the Close, yet notwithstanding A. continues the posaession of the residue, whether this shall preserve his possession in the residue; and he shall be judg∣ed to be in possession of that, because it is an intire thing, 5 E. 4. 2. and 8 E. 3. 13. Seisin of part of the services is the seisin of the whole, and so is Bettisworths Case, 2. Rep. The possession of the House is the possession of the Land, for the Lessee against his Lessor of that which passes by one demise: But if a stranger enter and sever part by metes and bounds, nothing is wrought by the possession of the re∣sidue: Another question was this, A Lessee for yeares of ten Acres, paying twenty shillings Rent, the Lessee is outed of parcell, yet he payed all the Rent to him in Reversion; the Lessor having notice of the enter whether this protects the Reversion, so that nothing is gain∣ed by the entry but the interest of the Lessee, and shall be no dissei∣sin: And Yelverton at the Barr was of opinion, that it should be no Disseisin, Rithen, Sect. 590. saith, That so long as the particular Tenant continues his possession, so long is the reversion in the Lessor; for in such case as to the Lessor the Lessee shall be alwayes deemed in possession by force of the Lease; and the reason why the Lessee shall be adjudged in posaession of all as to the Lessor, is, because the Lessor cannot have notice of the alteration of the posaession; for when the Lessee by his owne Act or sufferance doth a thing in alte∣ration of the posaession, of which by common intendment the Les∣sor cannot have or take notice, there the Law will not prejudice the Lessor: And see for that, Farmers Case, in the third Rep. 79. If Tenant for life levy a Fine having Land in the same Villiage, this shall not bind the Lessor, if five yeares pass before he take notice of what Land the Fine is levied: And the same Law if Tenant for life make a Feofment to one who hath land within the same Village levies a Fine, and in this cafe if the Lessee hath continually payd all his Rent, the Lessor cannot intend or suspect, but that the Lessee is absolute Te∣nant of the whole: and in Farmers Case it is sayd, That if the Les∣sor levy a Fine, the Disseisee is barred without claime, for it is im∣possible but he to whom the wrong is done shall presently know it. But if he that hath the particular estate by Grant or trust reposed in him, shall secretly practice, although he pay the Rent and continue posaession, yet it is otherwise: But the Reporters opinion was, that if in the principall case no Rent had been reserved, then the Rever∣sion had been devested by the entry, for there had been no act done to mislead or hinder the knowledge thereof; and also although rent

be reserved and all payd, yet if he had express notice thereof, the reversion had been devested, And secondly, if it should be a Dissei∣sin a great mischeif would follow, for if a discent should be, it would take away the Lessors entry and yet no fault in them, because in com∣mon presumption the Lessee alwayes continued Tenant; but Cook of a contrary opinion, for he said, it could not be denyed but that the Lessee is out of the posaession, and then it follows of necessity that the Lessor must be out of his reversion: And as to notice to make his claime, he must take notice at his perill, 4 M. Dyer, 143. b. But note, that this is when the Law intends that he may take notice, which it will not intend in this Case: Haughton was of opinion that it was a Disseisin, and Doddridge sayd, It would be mischeivous if it should.

Hill. 6. Iac. In the Common Pleas, that if in the Common Barre, in Trespass the place in the Common Barre is alledged to be Blacka∣cre, the Plaintiff may plead that it is his Free-hold: and then it was held by the whole Court, that an abuttall of one side is sufficient without alledging it of every side.

SWaine against Becket. An Action of Trespass brought for cutting * 1.510 down of Trees: And upon a speciall verdict the question was, that whereas there is a Mannor wherein are Copi-holders for life, which have used to lopp Trees growing upon the Copy-holds for their ne∣cessary fire, and repairing of their customary Tenements; the Lord of the Mannor maketh a Lease of the Mannor for yeares, excepting the Trees: the Lessee of the Mannor granteth a copy for life, the Copy-holder loppeth the Trees growing on his Copy-hold, whether by law he might do it or no was the doubt of the Jury. And it was held by all the Court that the Copy-holder might lopp the Trees, because he is in by the custome, which is above the Lords Estate after he is admit∣ted, and that the copy-hold doth not depend upon the Lords inte∣rest: And that the Trees excepted, and the Soil remained parcell of the Mannor, because the Lease was but for years: but if the Lease had * 1.511 been for life, it had been otherwise, because it had been severed from the Mannor. And whereas it was objected, that the Tenant should not be in a better condition then his Author, it was answered that a Lord of a Mannor at will, may grant a copy for life, or in fee, and it is good. If the Lord cut down all the Trees, so that the Copy-holder can have no lopping, he may have his Action upon the Case a∣gainst the Lord, as it was adjudged in Gosnolds case. If the Lord sell * 1.512 away his waste, and the Copy-holder dye, and the Lord grant a new copy, he shall have his Common. If the Lord sell away the Trees, so that the Copy-holder cannot have Estovers because the Bargainee fel∣leth down the Trees, the Copy-holder shall have his Action against

the Bargainee: Common and lopping are incident to the copy-hold, Judgment for the Defendant.

HArris against Ap-John. An Action of Trespasse brought; the Defendant pleads not guilty, and verdict found for the Plaintif. And in Arrest of Judgment it was alledged that the venire facias was de placito debiti: and so also was the habeas corpus, and it should have been de placito transgressionis: And it was amended by the whole Court.

MYnwinnock against Bligh. Trin. 16. Jacob. rotulo, 1697. An a∣ction of Trespasse brought for breaking the Plaintiffs Close, done Septemb. in the 13. year of King James: The Defendant pleads as to part of the Trespasse in award, and that the Defendant submits himself to the award the 15. yeare: and that the Arbitrators in the 13. yeare, which was before the submission made the Award, and traverses that he was guilty of the Trespasse after the award made: And the Plaintiff replies, that the Arbitrators the said day in the 13. year, made not any award, &c. And after Tryall exception was ta∣ken, that the issue was ill joyned, being of a thing that was void, yet notwithstanding Judgment was given for the Plaintiff, and they re∣sembled to a payment upon a single Bond, and conditions performed at a Feast, not contained in an Obligation.

Trin. 15. Jac. rotulo, 3044. An Action of Trespass brought, wher∣fore by force and armes his Goods and Chattels, to wit, a thousand posts, and forty railes took and caryed away, and damages given in∣tire, and after a verdict exception taken, because Rales was pretended to be no Latine word, nor to have any exception, but Judgment was given for the Plaintiff.

DƲncomb against Randoll, Hil. 9. Jac. rotulo, 2267. Three issues in Trespasse: One issue was upon a prescription, to wit, that they had accustomed to have for himselfe his Farme and Tenants of the same Mannor, common of pasture in the said, &c. for all his Sheep which are levant and couchant in and upon the Demesne Lands of W. which lye, and are in A. aforesaid every yeare: And exception was ta∣ken for the uncertainty, because it did not appear that those were de∣mesne Lands which lye in A. for it was ill pleaded, and ought to be a∣verred; but notwithstanding it was held good after a tryal, and Judg∣ment was given for the Plaintiff, and in this case an exception was ta∣ken to the venire facias, because it was of A. and of the Mannor of C. and because it was made in this manner, to wit, de visu de A. and de visu manerij de C. but it was disallowed, because against the form u∣sed in the Common Pleas.

DOwnes against Skrymsher, Trin. 9. Iac. rotulo, 334. An Action of Assault and Battery brought, and there was a Demurrer up∣on the Evidence: And the case was, that the Defendant the day spe∣cified in the Declaration said, that the Plaintiff assaulted the Defen∣ant, and in defence of himselfe justifies the beating; the Plaintiff re∣plies that he did it of his own wrong, without any such cause: and in the Evidence the Defendant maintained that the Plaintiff beate him the day mentioned in the Declaration, and in the same place. And the Plaintiff perceiving that, gave in evidence that the Battery was made another day and place, to wit, &c. which was the cause of the speciall verdict; for if there be two Batteries made between the Plain∣tiff and Defendant at divers times, the Plaintiff is bound to prove the Battery made the same day in his Declaration, and shall not be admit∣ted to give another day in evidence, by the opinion of the whole Court.

HEydon against Mich. 8. Jac. rotulo, 839. An Action of Battery brought against three, two of them pleaded not guilty, and Judgment by non sum informat. against the third, and the two were found guilty for all: And the Jury gave damages severally, a∣gainst one a 100 l. and against the other a 100 s. and what Judgement should be given was the question: and at first the Court was of opinion that the Plaintiff should not have Judgment at all; for where the * 1.513 Defendants are found guilty of all the Trespass, in this case, the da∣mages shall be intire; but if one shall be found guilty of part, or at a∣nother time in this case, the damages shall be severall, otherwise not. And they thought a Venire de novo ought to issue out, because the Ju∣ry had mis-behaved themselves in severing the damages; but after∣wards, it was resolved that the damages that were given by the first Jury, to wit, one 100 l. should be recovered against all the Defendants in that Writ named: and that in Trespass the first Jury taxes the damages for the whole Trespass, and that shall bind all the Defen∣dants, and therefore execution was given against all the Defendants for the hundred pounds, Trin. 9. Jam. rotulo. 1835.

BAnks against Barker, Hill. 12. Jac. rotulo, 1979. In an Action of Trespass, the venire facias was well awarded upon the case of the venu in Westown, and of the Mannor of D. and the Writ of Ve∣nire was mistaken, to wit, of the venu of Westown: and exception be∣ing taken after tryall, the Court was moved for the amending of the venire facias by the roll; and it was denyed, because the Jury * 1.514 did come of another venu then they ought by the Law of the Land to come, and therefore could not be amended: but afterwards the

Court seemed to be of an opinion, that the awarding of the venu in the roll was mistaken, because it was of the venu of the Villiage and Mannor: and it should have been of the Mannor only, being to try a custome of the Mannor.

FOrrest against Headle, Hill. 13. Jac rot. 1123. An Action of Tres∣pass brought, and a continuando of the Trespass unto the day of the shewing forth the Plaintifs Originall, to wit, the 20. day of No∣vember, which day was after the shewing forth of the Originall: and because the Jury gave damages for the whole time, which ought not to be, it was proved that the Judgment upon the verdict might stay, * 1.515 but by the whole Court the videlicet was held idle, and Judgment gi∣ven for the Plaintiff.

COcks against Barnsley, Hill. 10. Iac. rotulo, 2541. An Action of Trespass brought, and a speciall verdict found, and the question was, whether Land held in ancient Demesne was extendable for debt, and an action of Trespass brought for that cause. And Justice Nichols held it was extendable; for otherwise, if it should not be extendable, there would be a fayler of Justice; for if a Judgment should be had against a man, that had no other Land but what was in ancient De∣mesne, * 1.516 and that it could not be extendable, there would be a fayler of Justice, which the Law doth not allow of: but an Assize, or a re-dis∣seisin doth not lye of Land in ancient Demesne, because of the Seisin that must be given by the Common Law, and it would be prejudicial to the Lord, which the Law allows not: and Wynch and Hubbard were of the same opinion. For ancient demesne is a good plea, where the Free-hold is to be recovered, or brought in question, but in an a∣ction of Trespass it is no plea. And note, that by this execution, nei∣ther the Free-hold nor Possession is removed, but only the Sheriffe enters to make execution upon a Judgment had in the Common bench in debt, which is a proper Action to be brought there.

WRight and his Wife against Mouncton, Hill. 12. Iac. rotulo, 43. An Action of Trespass brought, to which the Defend. pleaded not guilty: And the Husband only made a challenge, that he was ser∣vant to one of the Sheriffs, and prayes a processe to the Coroners; and the Defendant denies the challenge: and therefore notwithstand∣ing the challenge, the Venire issued to the Sheriffs; and after a tryall, * 1.517 exception was taken, because the woman did not joyne in the chal∣lenge: and it was held that the Husband and Wife should joyn in the challenge, although the cause of challenge proceded from the Hus∣band only; but after tryall, it was helped by the Statute of Ieofailes, and judgment given for the Plaintiff.

BIde against Snelling, Hill. 16. Iac. rotulo, 1819. An Action of Ejectment brought, and also a Battery in one, and the Writ: and after a verdict it was moved in Arrest of Judgment, because the Battery was joyned with the Ejectment. The damages were found severally, and the Plaintiff had released the damages for the Battery, and prayed Judgment for the Ejectment: Winch held the Writ naught, but Judgment was given for the Plaintiff notwithstanding.

STeward and his Wife against Sulbury. An Action of Trespass brought, wherefore by Force and Armes the Close of the Wife while she was sole at D. hath broken: and the wood of the said D. to the value of 1005. there lately growing, hath cut down and car∣ried * 1.518 away, and in his Count shews that he hath cut downe two acres of wood: and exception was taken because he declared of so many a∣cres of wood, and not of so many loads of wood, to wit, twenty, &c. loads, and held by the Court to be a good exception.

BLackeford against Althin, Trin. 14. Jac. rotulo, 3376. An action of Trespass brought, wherefore by Force and Armes a certain Horse of the said Plaintiffs took away, &c. The Defendant conveys to himselfe a certain annuity, granted to him by one John Hott. The Plaintiff shews, that one William Hott, Father of the said Iohn Hott, the Grantor was seised of Land in Fee, which Land was Gavel-kind Land, and devised it to his Wife for life, the remainder to Iohn Hott the Elder, and Iohn Hott the Younger his Sonne, and the Heirs of their bodies: And afterwards William dyed, and the Woman entred, and was seised for life; and the two sonnes entred, and were seised in tayl, and being so seised, Iohn Hott the younger had issue, Iohn Hott, &c. and traverses without this, that Iohn Hott the Father, at the time of granting the annuity was seised of the Tenements aforesaid, with the appurtenances in his Demesne, as of fee, as, &c. And the Defen∣dant as before, saith, that the said J. H. the Father at the time of the granting the annuity aforesaid was seised, and after the tryall it was moved in Arrest of Judgment, supposing it was mistried; because the issue was, that the said J. H. the Father, at the time of the grant, &c. And it doth not appear that the said J. H. was nominated Father, nei∣ther could it appear that the said J. H. was the Father, and so the word Father was idle, and the Court were of opinion, that it was helped by the Statute of Ieofailes: and the word Father was idle, and judgment was given for the Plaintiff.

A. brought an Action of Battery against the Husband and Wife, and two others; the Wife and one of the others without the Hus∣band pleads not guilty, and the Husband and the other pleaded, seu

assault demesne, and tryed and alledged in arrest of Judgment, because the Woman pleaded without her Husband: and Judgment was stay∣ed, and a Repleader alledged, and this case was confirmed by a case which was between Yonges and Bartram.

HArvy against Blacklole, Trin. 8. Jacobi. rotulo, 1749. An Action of Trespass brought, wherefore by force and Armes his Mare so strictly to a Gelding did fetter, that by that fettring the Mare afore∣said did dye. If a stranger take a Horse that cometh and strayeth into a Mannor, the Lord may have his action of Trespass. If my stray doth stray out of my Mannor, and goeth into another Mannor the day before the yeare be ended, I cannot enter into the other Mannor to fetch out the stray: If I take an Horse as a stray, and onother ta∣keth him from me, the Action lyeth not by the Owner against the second taker, because the first taker hath devested the property out of the Owner. The Defendant in this justified the taking of the Mare as a stray, and did not alledg that he came as an estray, and the Plea was held insufficient, and the Court held they could not tye them to∣gether: And the Defendant said, that the Hayward took the Mare and delivered her to the Defendant; this was but not guilty, and Judgment for the Plaintiff.

LƲttrell against Wood and other Defendants, Pasch. 40. Eliz. An Action of Trespasse brought, wherefore by Force and Armes he broke the Plaintiffs Close, and cut down his Trees. The Defendant in Barre to the new assignment, alledges that he is a Copy-holder for life of the Mannor of Mynehead in the County of Somerset: and that in that Mannor there was a Custome that every Copy-holder for life had used at his pleasure, to cut downe all the Elmes growing upon his customary Lands, and to convert them to his own use, when, and as often as hee would, and so justifies, and a Demurrer upon the Barre: And the question was, whether the Custome was good and reasonable; and the later opinion was, that it was a good and reaso∣nable Custome, but now it is otherwise held.

Actions of Waste.

IN Waste the Writ shall be brought where the Waste was com∣mitted: And the Processe in this Action is Summons, Attach∣ment, and Distresse, peremptory by the Statute of Westminst. 2. But at the Common Law the Distresse was infinite. And if the De∣fendant doth not appear upon the Distresse, although a Nihil be re∣turned, yet the Plaintiff shall have Judgment, and a Writ to inquire of damages of the Waste, and an Essoine lies, as in a Quare Impe∣dit, and the Processe shall be executed as in a Quare Impedit, and returned from 15 dayes to 15 dayes, and the Plaintiff in this Action shall not recover costs, but the value of the Waste found by the Jury shall be trebled by the Court; for costs shall not be recovered in such Actions as are given by the Statute, as in this Action a Decies tantum, and Quare impedit: And so Judgment is to recover the place wasted, and severance lies in this Action, Mich. 9. H. 4. rot. 104.

And note, in the tryal of the issue in Waste, if the Defendant by his Plea doth not confess the Waste, six of the Jury which are impannel∣led to try the Waste must have the view of the place wasted, to the intent that the Plaintiff may be put in possession of the place wasted by the view of the Jury: And if the Defendant confesse the Waste, the Jury ought only to inquire of the value of the Waste, but not who committed the Waste: But upon a default upon the grand Distress, the Sheriff in his proper person shall repair to the place wasted, and there inquire what waste and spoile is done. And if he doth not re∣turn that he was there in his proper person, it is naught: But upon a Judgment by non sum informat. nil dicit, or in a Plea by which the De∣fendant confesses the waste, the Sheriff shall inquire only of the da∣mages: And he is not bound to return upon that Writ, that he in pro∣per person went to the place wasted: And when the Judgment is by default, the challenge lies against the Sheriff, and if it be denyed it is Errour: And if the Plaintiff do not take jungment upon the first di∣stress, being returned, executed, but takes another distress, it is Error.

And no receit lies by the VVife upon the default upon the Di∣stress at the return of the VVrit to inquire of the wast, Trin. 6. H. 6. rotulo, 133. For if the VVoman at the Assize before verdict, doth not pray to be received, she shall never be received afterwards in the Court, at the return of the Nisi prius. And note, that the Jury may

give severall values, and one joynt value of the place wasted, but se∣verall values is the better way.

If a Lessee for yeares makes a Lease of one moity to one man, and of the other moity to another man, and one of them commit Waste, the Action shall be brought against the two, for the Waste of one is the Waste of the other, if a Lease be made by three to one for life, and afterwards two release to the third, and the Lessee commits wast, he alone shall have a Writ of Waste, supposing that hee demised onely.

If Waste be committed in two Villiages, and the Sheriff hath exe∣cuted his Office naughtily in one Villiage and well in another, all shall be inquired of, De novo, because the whole in Inquisition was but one Inquest at one time; but if the Plaintiff assigne the Waste in the Houses and Woods, and it doth not appeare by the Count, that the Houses were demised; and upon a Nihil dicit, a Writ to in∣quire of the damages issues out, and the Jury find, &c. the Plaintiff shall have his of the Houses.

BEdell against Bedell, Trin. 8. Jacobi, rotulo 3052. An Action of Waste brought; the Case was, There is a devise to two for one and twenty yeares, the Father and Son, and made the Son Executor, and he refuses to prove the Will, and take the terme, and so no Waste committed. And if Lessee for life and his Lessor joyne in a Lease for yeares by Indenture, and the Lessee for life dye, and waste is committed, the surviving Lessor shall have the Action of Waste, and shall count that he did demise it alone: If a Lease be made to Husband and Wife for life, and for twenty yeares after their deaths, and the Wife dye, and Waste is committed, the Wife shall not be named in the Wri••, nor the terme after her death.

If Husband and Wife during the Coverture make a Lease, and Waste is committed, they both shall joyne in the Action of Waste: And if a Lease be made but for one yeare or for halfe a yeare onely, yet the Writ shall be for a terme of years, but the Count shall be speciall; if a Lessee for yeares or life grants Rent out of the Land he had for yeares, and afterwards commits Waste, if the Lessor re∣cover the place wasted, the Land shall be charged: If a Lessee for a hundred yeares grants part of his terme to another, and be commits Waste, the Action shall be brought against the first Lessee. If Te∣nant for life commits waste, and afterwards grants his estate to ano∣ther, waste shall be brought against him in the Tenet; and after Judgement, a Scire facias shall issue to the Grantee, to shew cause wherefore the Plaintiff shall not have Execution of the place wasted; and the like if Lessee for yeares commit waste, and grants over his E∣state, Waste shall be brought against him in the Tenet.

And if a Lease be made for life, upon condition that if the Lessee shall do such an Act, his Estate shall cease; and he doth commit such an Act, the Writ shall be brought against the Lessee in the Tenet, although his Estate be ended: And the like if a Lease be granted to a Woman so long as shee shall live sole, or shall behave her selfe wel, if shee commit Waste, the Writ shall be brought in the Tenet ad ter∣minum vite, and the Count shall be speciall: If Tenant in Dower grants over his Estate to a Stranger and commits Waste, yet the Action lyes against the Tenant in Dower, but otherwise it is if the Heire grants over his Estate: And the like for Tenant by the Cur∣tesie.

If Waste be brought against two, and one appear upon the Distrin∣gas, and the other make default, the Plaintiff shall have a Writ to inquire of the Waste, but shall declare against him that appears, for a man shall not recover by moities in Waste, as one shall recover in a Precipe quod reddat against two, for in waste the Land shall not be lost by default, by an Action tryed, and if a waste be committed be∣tween the Judgement and Execution, a writ shall be awarded to in∣quire of the waste, but Quaere thereof: If a woman while she is sole commits waste, and marries, the writ shall be, that the woman while she was sole committed waste, and if Tenant in Tail in remainder brings an Action of waste against Tenant for life, the writ may be, which he holds of the Tenant in Tail, although they hold of him in the Reversion in Fee, and so it was adjudged, Pasch. first James, that the writ was good. An Action of waste lies against Ex∣ecutors for waste, for waste committed by the Testator, and if a man have Land in the Right of his Wife, and waste is committed, and the woman dies, now no Action of waste lies against the Hus∣band, after the death of the wife.

In waste, if the Term be ended, and nothing be recovered but da∣mages, there a concord with satisfaction is a good plea, and if the Lease for years determines, pending the writ, the Plaintiff shall recover no∣thing but damages, and not the place wasted. The Defendant may disclaim in his Action, if he that hath the fee, pleads no waste done, this is a forfeiture of his Estate; the Defendant may plead no waste done, and give in Evidence that the Tenements at the time of the Demise were ruinous, ancient Demesne is no Plea in Waste.

If a Guardian in Socage, in the Right of his wife commits waste, the writ shall be brought against the Husband onely, Mich. 27. Ed. 1. rotulo 329.

If an Action of waste be brought against the Husband and wife, and the Husband appear upon the Distringas, and the wife maketh de∣fault, this shall be the default of both of them, Mich. 20. H. 4. rotulo 393. the Plaintif may abridge the waste assigned in part, so that he a∣abridges

not the whole, as if writ be of waste in houses and wood, he may abridge part of the assignment in the houses and woods, but not the whole, and if Issue be joyned for part, and demurrer for another part, the Issue may be tryed before the Demurrer adjudged.

If an Indenture to raise uses upon good consideration be made, and he that hath the Estate for life commits waste, he to whom the re∣version is limited, by the same Indenture may have a generall writ of waste, by saying generally, that he hath demised, it or a speciall writ at his pleasure, and Mich. 27 H. 7. it was held by all the Judges, that it is an ill return, for the Sheriff to return upon a writ to in∣quire that he hath commanded his Bailiff, because the Sheriff is both Officer and Judge, which power cannot be committed to the Bailif of the Liberty, and the writ is a Non omittas in it self, but Quaere, for there are divers Presidents against it, the Lessee may cut down Trees for the repairing of houses, when the Lessor is bound by covenant to repair, and doth not; and it is no good Plea, for the Lessee in waste brought against him by his Lessor, to say generally that he hath no∣thing in the Reversion, but he must shew how the Reversion is not of him, but upon a grant of the Reversion, and waste be brought by the Grantee, nothing in Reversion is a good Plea. Upon no waste pleaded the Defendant cannot give in Evidence that the Tenements were suffi∣ciently repaired before the writ brought. If an Issue arises i•• a for∣reign County, the Jury shall not be examined of the view, and if the Jurors be not examined of the View when they should be examined, it is Error.

If my Father leases Land for term of life, the writ of Waste shall be of houses, &c. which the said A. Father to him demised, and so in a Writ of waste, of a Lease made by my Predecessor, but if the Abot, or the Son himself bring the writ, it shall be of Houses, which he holds for a Term, &c. if waste be made (sparsim) in a Close or wood, the Plaintiff shall recover the whole Close or wood, and the treble value shall be levyed by Fieri facias, or Elegit, and not by Capias, because a Capias lies not upon the Originall, the Sheriff may take a Posse Comitatus to stay the Tenant from doing of waste upon an estrepment. Two Tenants in Common, one of them makes a Lease for years to the other.

An Action was brought against Tenant for years, by him in the Reversion: the Case was, that the Lessorafter the Lease made, grant∣ed another Lease in Reversion for yeares, and this matter pleaded in abatement, pretending that the Lease in Reversion, was an impedi∣ment against the Plaintiff, inbringing his Action, but otherwise adjudged, for if a Lease be made for life, the Remainder for years, and waste be committedby Tenant for life, notwithstand∣ingthe Lease for years in remainder, waste lies.

SKeate against Oxenbridge and his wife, Trin. 12 Jac. rotulo 849. waste brought of Lands and Gardens, in L. of which E. K. was seised in his Demesne, as of Fee, and being so thereof seised, after the fourth of February, 27 H. 8. thereof infeoffed E. S. and o∣thers to the use of the said E. S. dead, and of the said E. for Term of their lives, and the longest liver of them, and after the decease of the said E. S. and the said E. then to the use of the Heirs of the body of the said E. S. to be begotten upon the body of the said E. of which said E. S. dead, the now Plaintiff is Son and Heir begotten on the body of E. committed waste, and in the Declaration he shewed the Feoffment made to the Feoffees, and the habend. to them and their Heirs, and because the word Heirs was omitted in the writ, exception was taken, but because it was in the Declaration, it was adjudged good; and note, in this Case the woman was received up∣on the default of the Husband, and pleaded to Issue. If the Feof∣fees have but an Estate for life then they cannot convey an Estate in Fee simple over.

SAunders against Marwood H. 41. El. rot. 747. An Action of waste * 1.519 brought in the Tenuit against the assignee of the Term, by the assig∣nee of the Reversion for wast committed in digging of Sea Coals: the Defendant pleads in Barr, that the first Lessee, opened the ground, and granted to him all his Interest in the Land, with all profits, except and alwayes reserved to him his Heirs and Assigns, all the Title of the Coal-Mines in the said parcell of Land, and all Timber Trees, and averres that the Mine in the Land, at the time of the Grant made, was, and yet is open, and adjudged no Barr, for he had no power to intermeddle with the digging for coals, and to except with which he had no power to meddle, is void exception, and the Defendant was punishable for the waste by the whole Court.

LAshbroke against Saunders, Pasch. 41. El. rotulo 1532. or 2592. in waste, the Case was in the Lease, there was this Proviso, to wit, povided that the Lessee shall not fell the wood, the Defendant pleads the Proviso, and saith, he hath not demised it, and the Question was, whether these words, provided and agreed, are an exception, or no, and adjudged that the word provided is no exception, and the wood was demised.

The End of the Book.

Notes

• * 1.1

  Case for words, You are a Ba∣stard, tried by the Countrey.
• * 1.2

  Judgement ar∣rested, because the Plaintiff did not averr that he was an Attonrney at the time of the words spoken.
• * 1.3

  Case for words which d••d a∣mount to but petty Larceny.
• * 1.4

  For calling one Witch, no Acti∣on will lie.
• * 1.5

  If Felony be committed, good cause to arrest one for it, but not to speak words to de∣fame one.
• * 1.6

  A Feme covert cannot con∣vert.
• * 1.7

  Action upon the casebrought upon a collate∣ral considera∣tion, and good.
• * 1.8

  Judgement re∣versed by Writ of Error, be∣cause Sheriffs name was o∣mitted on the venire fac.
• * 1.9

  Case for words not actionable.
• * 1.10

  Gase for words.
• * 1.11

  A man shall not be punished for mistaking the Law.
• * 1.12

  Case for words.
• * 1.13

  The like.
• * 1.14

  The like for Words.
• * 1.15

  Judgement ar∣rested, because the Plaintiff omitted to shew in his De∣claration the words were spoken of him∣self. The Defen∣dants Justifi∣cation adjud∣ged naught, be∣cause he justifi∣ed for words that were acti∣onable.
• * 1.16

  To do a thing allowable by Law is no con∣version.
• * 1.17

  The Defen∣dants Justifi∣cation amoun∣ted but to No∣guilty, and ad∣judged naught.
• * 1.18

  Judgement ar∣rested, for want of certainty in the Count.
• * 1.19

  Judgement ar∣rested, for that the considerati∣on was not va∣luable.
• * 1.20

  Case forwords, for calling an Attourney Bri∣bing Knave.
• * 1.21

  Judgement ar∣rested being mis-tried.
• * 1.22

  An inuendo. will not main∣tain an Action.
• * 1.23

  Difference be∣tween a pro∣mise executory and executed: quod nota.
• * 1.24

  Non cul. pleaded where Non assump∣sit should have been pleaded, and adjudged a good Issue.
• * 1.25

  Action of case for words, up∣on the statute, of 1. Jac. a∣gainst Invoca∣tion of Spirits.
• * 1.26

  Ehe Impar∣lannce role sup∣plied by the Is∣sue being per∣fect.
• * 1.27

  Judgement ar∣rested, for not shewing the Letters of Ad∣ministration.
• * 1.28

  Judgement ar∣rested, for that the Communi∣cation did not appear but by the Inuendo.
• * 1.29

  Action of the Case for calling a man main∣sworn fellow.
• * 1.30

  Moved in Ar∣rest of Judge∣ment, because no Demand al∣leadged, but not allowed.
• * 1.31

  Judgement ar∣rested, for in∣certainty in the Declaration.
• * 1.32

  By a general Pardon both Punishment and Fault ta∣ken away.
• * 1.33

  Promise upon condition, no∣tice not neces∣sary.
• * 1.34

  Nota.
• * 1.35

  Judgement ar∣rested, for in∣certainty in the Count, and for that the pro∣mise was made by an Infant.
• * 1.36

  Justification for calling a man perjured, dis-allowed, because he was t con∣victed.
• * 1.37

  Action of the Case will not lie for calling a Currier Barre∣tor.
• * 1.38

  For this word Papist no Acti∣on will lie, un∣less spoken of a Bishop.
• * 1.39

  Nota.
• * 1.40

  Action of the Case for double prosecution of a fieri sac.
• * 1.41

  Upon a non est invent. retur∣ned upon an Outlary, where the party esca∣ped, the Plain∣tiff hath his Election where to bring his Action.
• * 1.42

  Judgement ar∣rested for want of an Aver∣ment.
• * 1.43

  Judgement ar∣rested for the incertainty of the Count.
• * 1.44

  For collateral matters which are not Duties, a Request is ne∣cessary.
• * 1.45

  The word Witch will not bear an Action.
• * 1.46

  An implied promise where it is upon the reality will not lie, except up∣on a collateral cause.
• * 1.47

  An Indebitat. assumpsit for money ruled, good without expressing for what.
• * 1.48

  Action against the Sheriffs of London for discharging one who was arrested, coming to defend a suit depending there. The Court can∣not discharge one arrested, except he be arrested in the face of the Court.
• * 1.49

  Judgement stayed for va∣riance between the Count and Writ to inquiry.
• * 1.50

  Release by the Husband, plea∣ded in Bar to an Action brought by the Wife after his Death, for mo∣ney to be al∣lowed her after his Death, and adjudged no Bar.
• * 1.51

  Action for cal∣ling an Attour∣ney Champer∣tor.
• * 1.52

  The Roll men∣ded after the Record was certified by Writ of Errour, it being the Clarks mispri∣sion.
• * 1.53

  He is a forging Knave, spoken of an Attourney actionable.
• * 1.54

  Implyed words will not beare an action.
• * 1.55

  Trover brought by Administra∣tor, as of his owne goods, and adjudged good.
• * 1.56

  Demand and demall makes a Conversion.
• * 1.57

  The Sheriff justifies by ver∣tue of a Pro∣cess out of the Exchequer, to levy of the Oc∣cupiers of S. Lands 59. s. arrear upon the said Lands.
• * 1.58

  Common ap∣purtenant can∣not be divided.
• * 1.59

  Mis-triall, the Venn being mistaken.
• * 1.60

  Judgement ar∣rested, for a mistake of the Jury.
• * 1.61

  In considerati∣on the Plaintiff would agree, the Testators son should marry the Plaintiffs daughter, ad∣judged a good consideration.
• * 1.62

  Rents arrear, no Plea in Covenant.
• * 1.63

  Difference be∣tween Cove∣nant and Debt to bring an Action.
• * 1.64

  Difference be∣tween Cove∣nant and Debt to bring an Action.
• * 1.65

  Breach assigned in default of the Party that never sealed the Indenture of Covenants.
• * 1.66

  Covenant lies against the first Lessee upon breach of Covenant made by the As∣signee.
• * 1.67

  Difference be∣tween Cove∣nant and Debt.
• * 1.68

  Covenant upon a void Lease is good.
• * 1.69

  Action would not lie, because if the Covenant was not per∣formed, Piracy is no excuse to perform a Co∣venant.
• * 1.70

  Judgement ar∣rested for de∣fault in the Declaration.
• * 1.71

  A Covenant in Law shall not be extended to make a man do more then he can.
• * 1.72

  A Suit in Chancery, no Disturbance.
• * 1.73

  Judgement ar∣rested for de∣fects in the De∣claration.
• * 1.74

  Breach that one entred, and shews not by what Title, and naught.
• * 1.75

  Release cannot be given in E∣vidence upon a Plea, that the Defendant was never a Recei∣ver of the Plaintiffs Mo∣ney. In Account the Process are sum. Attaint and Distress. In Account two Judge∣ments, and up∣on a Nichil Process of Ʋla∣my lies.
• * 1.76

  Account against a Baily local.
• * 1.77

  The Defendant may wage his Law if the Re∣ceit be per ma∣nus proprias.
• * 1.78

  Nota.
• * 1.79

  In Account the Writ abates the Death.
• * 1.80

  Nota.
• * 1.81

  Nota.
• * 1.82

  Nota.
• * 1.83

  Matter in dis∣charge of the Actions shall not be pleaded in Bar.
• * 1.84

  Nota.
• * 1.85

  Nota.
• * 1.86

  Judgement in Account upon a special Ver∣dict.
• * 1.87

  Misprision of the Clerk a∣mended after Verdict.
• * 1.88

  No Tenant at the time of the Writ purcha∣sed, nor after∣wards, and if, &c. no Disseisin.
• * 1.89

  Note upon the Kings Grant.
• * 1.90

  View to be there where the Office is performed.
• * 1.91

  Another Writ brought, and hanging, a good Plea in abate∣ment.
• * 1.92

  Assise taken by default against Harvey, and the other Te∣nant pleaded in abatement of the Assise, that there was a Quare impe∣dit depending.
• * 1.93

  Nota.
• * 1.94

  The King can∣not create an Office to the Queen, who may bring an Assise.
• * 1.95

  No Costs in a non-suit in As∣sise▪
• * 1.96

  The Court was denied a Su∣persedeas, the surmise being onely matter in suit.
• * 1.97

  Nota.
• * 1.98

  A Writ of Co∣venant brought against more then acknow∣ledged, and prayed to be amended, and denied.
• * 1.99

  Lease made to one during the life, two if one die the Lease is ended.
• * 1.100

  Nota.
• * 1.101

  A case of Join∣ture.
• * 1.102

  Nota bene.
• * 1.103

  Difference be∣tween Tenant at will and sufferance.
• * 1.104

  Joynt Debt and Contract cannot have several Pleas. Nota.
• * 1.105

  Nota.
• * 1.106

  Nota.
• * 1.107

  If I command one to do a Trespass, an Action will lie against him.
• * 1.108

  Wife not bound to perform Co∣venants of the Lessee.
• * 1.109

  Nota.
• * 1.110

  No Action for small Tithes.
• * 1.111

  Administration granted during minority not within the Sta∣tute 21 H. 8.
• * 1.112

  Nota.
• * 1.113

  Ordinary can∣not make a Di∣vident of them∣selves.
• * 1.114

  Legacy of Land shall not be su∣ed for in Court Christian.
• * 1.115

  Nota. For Tithes.
• * 1.116

  Nota.
• * 1.117

  Nota.
• * 1.118

  Recitall shall not inlarge the Grant.
• * 1.119

  Nota.
• * 1.120

  Money paid by an Exe∣cutor upon a usurious Con∣tract is a De∣vastavit. Proportiament of Rent.
• * 1.121

  No Attorne∣ment necessary for Acts in Law.
• * 1.122

  Nota. For Tithes.
• * 1.123

  Nota.
• * 1.124

  Note how far Proof extends.
• * 1.125

  Nota, Difference.
• * 1.126

  Nota.
• * 1.127

  Nota.
• * 1.128

  Nota.
• * 1.129

  Nota.
• * 1.130

  Copy-hold land extendable up∣on Statute of Bankrupt. Being a mem∣ber of the Cinque Ports will not free one from Ar∣rest. Difference of things that are in Prender and that are in Render.
• * 1.131

  Nota.
• * 1.132

  Omission in a∣warding the venire of these words, Quo∣ad triand. &c. held good. Local things shall not be made transito∣ry.
• * 1.133

  A Tales pray∣ed by the De∣fendant upon the Plaintiffs Distring. in another Terme, but denied.
• * 1.134

  If Chamberlain of Chester make an ill Returne, the Sheriff shall be amerced. No Distress in a Court, Baron but by Prescrip∣tion. Actions upon penal Statutes, not within the Statute of Jeo∣failes.
• * 1.135

  Nota.
• * 1.136

  Judges not meddle with matters of fact.
• * 1.137

  Nota.
• * 1.138

  Information a∣gainst three, and two ap∣pear, may de∣clare against those two.
• * 1.139

  Nota.
• * 1.140

  Return of a Sheriff insuf∣ficient upon a Statute Mer∣chant, for o∣mitting, that he had no other Lands, &c.
• * 1.141

  Nota.
• * 1.142

  A Statute first acknowledged shall be pre∣ferred before a Judgement, afterwards re∣tained.
• * 1.143

  The case of Villainage within the Sta∣tute of Limita∣tion.
• * 1.144

  Nota in Ele∣git.
• * 1.145

  Two Inquisi∣tions taken at several Dayes by several Ju∣ries upon one Writ, naught.
• * 1.146

  Nota.
• * 1.147

  All Goods and Chattels bound by the Teste of the Elegit, and cannot be sold after∣wards.
• * 1.148

  Audita Quae∣rela and Bail put in in the Chancery, and held good.
• * 1.149

  The Act of E. 6. for Disso∣lution, reaches onely to such that are regu∣lar.
• * 1.150

  Nota.
• * 1.151

  Nota.
• * 1.152

  Nota.
• * 1.153

  Nota.
• * 1.154

  Deed of Gift for things in Action.
• * 1.155

  Supersedeas granted, be∣cause Capias ad satisfacien∣dum was not returned.
• * 1.156

  Nota.
• * 1.157

  Nota.
• * 1.158

  A Juror who hath appeared, cannot be pas∣sed by, and to swear others.
• * 1.159

  Goods cannot be sold upon a Levari facias, in a Court Ba∣ron without a Custome.
• * 1.160

  Sheriff retur∣ned but 21. up∣on a Venire facias, and naught.
• * 1.161

  Nota.
• * 1.162

  Judgement, that it was a good Devise.
• * 1.163

  The property is not altered, up∣on the Sheriffs taking of goods upon a Fieri facias, but re∣mains in the Defendant. Nota.
• * 1.164

  Alien born no Plea in a Writ of Error. Nota.
• * 1.165

  Issue cannot be bastarded after Death.
• * 1.166

  Nota.
• * 1.167

  Where the prin∣cipal is omitted cannot be sup∣plied by Writ.
• * 1.168

  Nota.
• * 1.169

  King could not grant preceden∣cy in publique things.
• * 1.170

  Nota.
• * 1.171

  Ancient De∣mesne tried by Doomesday Book.
• * 1.172

  The Venire facias was Al∣bum Breve, and denied to be amended.
• * 1.173

  Lessee at will cannot grant over his Estate. Note, difference between Te∣nant at will and sufferance.
• * 1.174

  Nota.
• * 1.175

  One commit∣ted, bailed, be∣ing no cause expressed.
• * 1.176

  Attorneys name put out of the Roll for a mis-demea∣nour.
• * 1.177

  Nota.
• * 1.178

  Nota.
• * 1.179

  Nota.
• * 1.180

  Writ of Entry filed after the Death of the Tenant.
• * 1.181

  Ordinary to place and dis∣place in the Church.
• * 1.182

  Fraud shall never be in∣tended, except apparent and found.
• * 1.183

  Nota.
• * 1.184

  High Commissi∣on nothing to do with mat∣ters of instance for Tithes.
• * 1.185

  Nota.
• * 1.186

  Nota:
• * 1.187

  Master shall not be corporally punished for his Deputies Of∣fence. Nota.
• * 1.188

  Nota.
• * 1.189

  Nota.
• * 1.190

  One at seven∣teen years old may be an Exe∣cutor.
• * 1.191

  No new notice needs if the Attorney be living. If no place of Payment be in a Will, must be a Request.
• * 1.192

  Nota.
• * 1.193

  Warrant of At∣torney filed up∣on a motion, after Writ of Error brought, and Error as∣signed.
• * 1.194

  Nota.
• * 1.195

  Warrant of At∣torney filed af∣ter Writ of Er∣ror, by Order of Court.
• * 1.196

  Attornement of an Infant is good.
• * 1.197

  An Attorney ought to have no Priviledge as on Attorney.
• * 1.198

  Husband shall pay for his Wives Clothes, though bought without his privity.
• * 1.199

  A mans Wife or Infant can∣not be examined.
• * 1.200

  One Bond can∣not overthrow the other.
• * 1.201

  Exceptions to an Award, pretending the Arbitrators had exceeded their Authori∣ty, but ad∣judged good.
• * 1.202

  Judgement for the Defendant, for insufficiency in the Count.
• * 1.203

  Judgement' for the Defendant, upon a by-law.
• * 1.204

  The Defendant at his perill ought to make Payment.
• * 1.205

  If part of a Condition be to be performed within the Realm, and part without, ought to be tri∣able here.
• * 1.206

  Defendant pleaded six Judgements in Barr, and two found to be by fraud, and Judgement for the Plain∣tiff.
• * 1.207

  The Sheriff cannot break open the out∣ward Door to do Execution, but that being open he may break open any other.
• * 1.208

  Exception ta∣ken to the De∣fendants Plea.
• * 1.209

  Nota.
• * 1.210

  Debt lies for Money levied by the Sheriff, upon a Leva∣ri.
• * 1.211

  Nota.
• * 1.212

  Nota.
• * 1.213

  Exception ta∣ken, because the Venire fa∣cias was of the Town, and not of the Pa∣rish, but ruled good.
• * 1.214

  Creditor admi∣nistred, and is sued, ought to plead fully ad∣ministred ge∣nerally.
• * 1.215

  Debt brought for 60. l. tr be paid at the Re∣turn of a Ship from New∣found-land to Dartmouth, onely 50. l. lent is not Usury.
• * 1.216

  Plea made good by Verdict. Nota.
• * 1.217

  Judgement a∣gainst both of the Testators Goods, and Damages of him that ap∣peared onely.
• * 1.218

  Nota.
• * 1.219

  Nota.
• * 1.220

  If no time of Payment in an Award due upon Demand.
• * 1.221

  Though two appear by one Supersedeas, yet they may vary in Plea.
• * 1.222

  The Impar∣lance amended after Triall, upon the At∣torneys Oath.
• * 1.223

  Nota. Bene case.
• * 1.224

  A Servant hi∣red to serve beyond Sea may have his Action in England.
• * 1.225

  Nota.
• * 1.226

  Nota.
• * 1.227

  Outlary in the Executor, no Pled.
• * 1.228

  Outlary in the Testator in Barr, adiudged naught.
• * 1.229

  A wrong man of the same name offers to wage his Law.
• * 1.230

  Lessor and Les∣see for years, one Assignes his terme, and the other grants his Reversion, Grantee of the Reversion shall have Action of Debt against the Assignee. Nota.
• * 1.231

  Nota.
• * 1.232

  Default of the Clerk amen∣ded, and after∣wards upon advice made as it was at first.
• * 1.233

  A Bill to pay Money upon Demand, must lay a special Demand.
• * 1.234

  Amendment of Issue Roll by the Imparlance Roll.
• * 1.235

  Estoppell.
• * 1.236

  Repleader a∣warded.
• * 1.237

  Money due up∣on a Mortgage payable to the Heir, and not to the Execu∣tor.
• * 1.238

  Money to be paid fifteen Dayes after re∣turn, &c. he proving his be∣ing there, Court divided which proof shall be, precedent or subsequent.
• * 1.239

  Condition that an Ʋnder-Sheriff shall not intermed∣dle with Exe∣cutions of such a value, held void.
• * 1.240

  Judgement ar∣rested, because the whole mat∣ter laid was found, and part was not actionable.
• * 1.241

  Bail discharged upon the prin∣cipals rendring his Body in an∣other Terme after a case re∣turned. Quae∣re.
• * 1.242

  An Award good in part, and naught for part, and Breach assigned in the good part, and held good.
• * 1.243

  If the Plaintiff be non-suit, yet no Cost upon the Statute of Per∣jury.
• * 1.244

  Nota.
• * 1.245

  Amendment of the Imparlance demed, after Error brought.
• * 1.246

  A thing out of the Submission awarded, and void.
• * 1.247

  Nota.
• * 1.248

  Defendant wage his Law upon a Reco∣very in a Court Baron.
• * 1.249

  A man cannot send his Ap∣prentice beyond Sea, except he go with him.
• * 1.250

  Ʋpon a nul. tiel. Record, though some Variances, yet the Debt and Damages a∣greeing, Judge∣ment for the Plaintiff.
• * 1.251

  Bond taken to appear in the Court of Re∣quest, void.
• * 1.252

  Return of the Habeas Cor∣pus amended.
• * 1.253

  Debt upon two Bils, and one not due, and tried for the Plaintiff, and moved in Ar∣rest, the Plain∣tiff released his Damages, and had Judge∣ment upon the Bill due.
• * 1.254

  Lessee of the Vicars Gleab-land shall pay Tithes. Nota.
• * 1.255

  Venire facias de D. or with∣in the Parish of D. or de Paro∣chia, good.
• * 1.256

  Scire facias upon a Recog∣nisance may issue out into any County.
• * 1.257

  Deprivation of a Minister may be given in evidence.
• * 1.258

  Best to have Damages seve∣red upon two Contracts.
• * 1.259

  Breach for not acknowledging a Fine.
• * 1.260

  Nota.
• * 1.261

  Feossment of Land in satis∣faction of Debt upon a single Bill, held naught.
• * 1.262

  A Steward of a Leet within the Statute of E. 6. against buying of Of∣fices.
• * 1.263

  One thing in Action cannot be a satisfacti∣on for another thing in Acti∣on.
• * 1.264

  Ʋpon a Request and none ready to receive, and after a Request Damages shall be paid from the Request.
• * 1.265

  Nota.
• * 1.266

  Nota.
• * 1.267

  Nota.
• * 1.268

  An Almoner would have acknowledged satisfaction, and doubted.
• * 1.269

  Judgement against the Plaintiff, for incertainty of his Count.
• * 1.270

  Nota.
• * 1.271

  Judgement for the Plaintiff.
• * 1.272

  Nota.
• * 1.273

  Because the first Contract was not usu∣rious, the latter shall not.
• * 1.274

  No Action of Debt for Soli∣citing Fees.
• * 1.275

  Defendant pleads, the Plaintiff was indebted to him, and he took Admini∣stration, and re∣tained his own Debt in his hands.
• * 1.276

  Bailiff of a Col∣ledge claims the Liberty of the University, but denied to him.
• * 1.277

  Special Ver∣dict.
• * 1.278

  Nota, well.
• * 1.279

  Appearance, though at ano∣ther Day the same Terme saves the Bond.
• * 1.280

  Demand neces∣sary for a No∣mine penae.
• * 1.281

  Costs omitted in the Roll, and Error brought, and demed to be amended.
• * 1.282

  Nota.
• * 1.283

  The Venire facias mis-awarded.
• * 1.284

  The Defendant pleads, that be was ready to grant, and naught.
• * 1.285

  No Demand necessary.
• * 1.286

  Note this dili∣gently.
• * 1.287

  Fully admini∣stred, no good Plea by an Ad∣ministrator to a Scire sacias to revive a Judgement had against the In∣testate.
• * 1.288

  An Executor an Assignee in Law.
• * 1.289

  Nota.
• * 1.290

  Nota.
• * 1.291

  Nota.
• * 1.292

  An Executor by wrong shall not by his Plea prejudice a rightfull Exe∣cutor.
• * 1.293

  Condition of non-payment of Rent to re-enter, the Rent was behinde, but before re-entry accepted the Estate is confirmed by the Acceptance.
• * 1.294

  The Defen∣dants name mis-taken in the Venire, and a new Triall award∣ed.
• * 1.295

  No costs against an Executor.
• * 1.296

  Devise of the profits of the Land it self.
• * 1.297

  Debt brought against an Ex∣cutor after full age for Goods wasted by the Administrator during his mi∣nority.
• * 1.298

  Release of all Demands, a good Barr in Rent not then due.
• * 1.299

  Judgement ar∣rested for im∣proper words without an Anglice.
• * 1.300

  The want of a Bill not helped by the Statute of Jeofayles.
• * 1.301

  To forbid no Breach.
• * 1.302

  The Defendant pleads a Plea by which he pretends the Plaintiff to be barred in ano∣ther Suit, but no Barr.
• * 1.303

  One by his own Election, cannot be Executor for part, and not for part.
• * 1.304

  Tenants in common.
• * 1.305

  Severall Debts.
• * 1.306

  Debt lies by him to whose use money is deli∣vered.
• * 1.307

  Debt upon a Statute of Per∣jury, at a Com∣mission issuing out of Chance∣ry not ly.
• * 1.308

  Outlary plead∣ed in Barr, and Nul. tiel re∣cord pleaded, and in the mean time the Outlary rever∣sed Judgement that the De∣fendant should answer over.
• * 1.309

  No Escape lies against a Sherif vpon a Capias upon a Recog∣nisance out of the Chancery.
• * 1.310

  Request to make Assurance gene∣rally and good.
• * 1.311

  Appearance up∣on warning, and for de∣fault adjudged naught.
• * 1.312

  Action of Debt upon the Sta∣tute of E. 6. for Tithes.
• * 1.313

  Sufficient to say the Plaintiffe is Proprietor without shewing the Title.
• * 1.314

  Misprision of the Clerk amen∣ded after Triall
• * 1.315

  Judgement re∣versed by Writ of error being in the dis∣iunctive.
• * 1.316

  The Plaintiffe had no Interest but 〈◊〉〈◊〉 rend∣ring of the Land.
• * 1.317

  Lessee at Will cannot deter∣min his will within the year but must an∣swer the whole Rent.
• * 1.318

  The Plaintiffe not bound to alleadge a spe∣ciall breach, when the De∣fendants Plea continues speci∣all matter.
• * 1.319

  Debt for Fle∣mish Money, but demanded by the name of 39. l. English.
• * 1.320

  If the Obligor marry the Ob∣ligee, the Bond gone.
• * 1.321

  Judgement ob∣tained by an Administrator, and after Ad∣ministration re∣voked, and par∣ty took in Exe∣cution, and de∣livered, because erroneous.
• * 1.322

  To plead an Appearance, and not say, Prout patet per Recor∣dum, na••g•…•…
• * 1.323

  Nota.
• * 1.324

  Award void for the incer∣tainty, for be∣ing the Judge∣ment of one it ought to have plainness and certainty.
• * 1.325

  Judgement ob∣tained by Presi∣dent of the Colledge of Phisicians, his Successor after his Death, and not his Execu∣tor shall have Execution.
• * 1.326

  Assurance.
• * 1.327

  Tithe shall be paid of Wood above twenty years growth, if it be not Timber.
• * 1.328

  Variance be∣tween the Obli∣gation and count shall not be shewed af∣ter imparlance
• * 1.329

  Demand of Rent must be at the place of Payment.
• * 1.330

  Judgement re∣versed in an in∣ferior Court for want of this word Dicit.
• * 1.331

  Want of an Original after a Verdict no Error, but a vitious Origi∣nal is Error.
• * 1.332

  Plea naught for want of a Traverse.
• * 1.333

  Nota.
• * 1.334

  Plaintiff in Debt for Tithes need not be na∣med Rector in the Plaint in the upper Bench.
• * 1.335

  Tithes cannot be leased with∣out Deed,
• * 1.336

  Judgement re∣versec•• for Er∣ror in the Judgement.
• * 1.337

  If a Suggestion in part need proof, and part doth not, no Costs.
• * 1.338

  Judgement re∣versed for Er∣ror in changing the Defendants Additions.
• * 1.339

  Action upon the Statute for Tithes, the Sta∣tute mistaken, yet it being ac∣cording to di∣vers Presidents ruled good.
• * 1.340

  Bill abated for not naming an Infant Execu∣tor in the Acti∣on, although Administration was granted during his minority.
• * 1.341

  Action upon the Statute 32 H. 8. of Arre∣rages of Rents.
• * 1.342

  Action lies not upon that Sta∣tute for Arre∣rages of Copy-hold Rents.
• * 1.343

  Action of Debt brought upon a Bill, for money received to ano∣ther use.
• * 1.344

  An Executor of his own wrong cannot retain Goods in his hand to pay himself.
• * 1.345

  Primo delibe∣rat. shall not be pleaded without a Tra∣verse.
• * 1.346

  If the Plaintiff assign no breach he shall never have a Judge∣ment, though he hath a Verdict.
• * 1.347

  Rent reserved at Michaelmas or within ten dayes after, due at Micha∣elmas.
• * 1.348

  A Judgement reversed by Writ of error, notwithstand∣ing a Verdict, and the Statute of 18 Eliz.
• * 1.349

  Executor shall not pay Costs upon the statute of 4 Jacobi cap. 3.
• * 1.350

  How a reser∣vation for Rent shall be con∣strued.
• * 1.351

  One must not plead in dis∣charge of the Obligation, but of the Conditi∣on contained in the Obligation.
• * 1.352

  A contingent Debt cannot be discharged.
• * 1.353

  False Latine shall not over∣throw an Obli∣gation.
• * 1.354

  A Deed of gift good against him that makes it, notwithstan∣ding 13 Eliz. and against his Executors, and Administrators.
• * 1.355

  Action brought upon an Obli∣gation to stand to the Award of four, or two of them, A∣ward made by two good.
• * 1.356

  Debt.
• * 1.357

  Judgement ar∣rested for Nil shewing in what Court the Deed was in∣rolled.
• * 1.358

  Judgement re∣versed for want of these words, in a Tales at Assi∣ses, nomina Jurat. &c.
• * 1.359

  By a Release of all demands money to be paid at a day to come, may be released before the day.
• * 1.360

  If the Defen∣dant confess he hath Assets, the Sheriff may return a De∣vastavit.
• * 1.361

  Action of Debt brought against the Sheriff up∣on an Escape, for one taken upon a Capias upon a Recog∣nisance, and adjudged that it would not lie.
• * 1.362

  Debt brought upon a Lease made to an In∣fant.
• * 1.363

  One may take his Executio•• either against the principall or Bail at E∣lection.
• * 1.364

  An Action of Debt brought upon a Bond, which was, Obligamus nos, vel quemlibet no∣strum, adjud∣ged to be joint and severall at the Plaintiffs Election.
• * 1.365

  Action of Debt upon an Obliga∣tion to perform an award, and the breach assigned for ex∣hibiting a chan∣cery Bill, and adiudged no Breach.
• * 1.366

  Action of Debt for Tithes, the Defendants time ended be∣fore the Co••n carried, yet held good for the Plaintiff.
• * 1.367

  An Action will lie against a stranger, that shall carry a∣way the Corn before the Se∣verance.
• * 1.368

  Dower may be brought against the Heir or Committee of the Ward.
• * 1.369

  Nota.
• * 1.370

  He in Rever∣sion received after Default made by Te∣nant for Life.
• * 1.371

  Return of the Sheriff ad∣judged insuf∣ficient being too general.
• * 1.372

  No Writ of Er∣ror lies untill the value be in∣quired upon.
• * 1.373

  Implication not good in a Sur∣render, though it be in a Will.
• * 1.374

  Challenge be∣cause the She∣riff married the Daughter of the Lessors Wife, and held no cause.
• * 1.375

  Nota.
• * 1.376

  How to execute a Lease to try a Title, the Land being in many mens hands.
• * 1.377

  Originall a∣gainst four, and count against 3. without a Si∣mulcum, and held naught.
• * 1.378

  The intent of a will must be certain, and a∣greeable to Law
• * 1.379

  Nota.
• * 1.380

  How to execute a Lease by Let∣ter of Atturney
• * 1.381

  A Venire fa∣cias of the Pa∣rish adjudged good.
• * 1.382

  A mistake of the Cursitor in the Originall amended after Triall.
• * 1.383

  Nota.
• * 1.384

  Though the De∣fendants Plea be naught, yet the Plaintiff shall not reco∣ver, because he shewed not any Title by his re∣plication.
• * 1.385

  The question is upon the Sta∣tute of 32 H. 8 upon Feoffe∣ments made by Husbands du∣ring the cover∣ture.
• * 1.386

  A verbal aver∣ment shall not overthrow a will.
• * 1.387

  The mistaking of the Town not hurtfull in a Will.
• * 1.388

  Property of Goods cannot be in obay∣ance.
• * 1.389

  Difference be∣tween Pre∣scription and Custome.
• * 1.390

  Copihold Land cannot be de∣mised for three years without license or cu∣stome.
• * 1.391

  Record of Nisi prius amended by the Roll.
• * 1.392

  Concord with satisfaction a good Plea in Eiectment.
• * 1.393

  Misconveyance of process, what it is, and helped by the Statute.
• * 1.394

  A feme covert cannot make a Letter of At∣turney to deli∣ver a Lease upon the Land.
• * 1.395

  When a demand shall be made to the person, and when up∣on the Land▪
• * 1.396

  A Lease made to three for their lives, with a Cove∣nant that the Land should remaine to the survivor of them for ninety yeares, a good interest in the survivor.
• * 1.397

  A precise Ver∣dict makes the Declaration good, which otherwise is naught.
• * 1.398

  A demand of Rent to avoid a Lease upon a condition ought to be in the most open place.
• * 1.399

  After an Imparlance cannot plead in abatement.
• * 1.400

  22 H. 6. 6. Foxlies Case. 5 Rep. 111.
• * 1.401

  The day of a Copihold of Court roll tra∣versed, and ad∣judged naught.
• * 1.402

  Houses in Lon∣don passe by the delivery of a bargain and sale without in∣rolment.
• * 1.403

  An Ejectment will not lye de aquae cursu.
• * 1.404

  A Servant is a sufficient Eje∣ctor, if he dwell with the pre∣tended owner.
• * 1.405

  He that is a Purchaser of Copihold hath nothing in it, nor can he sur∣render to ano∣ther before ad∣mittance.
• * 1.406

  How an Abate∣ment shall be traversed.
• * 1.407

  1 E. 4. acr. 1 E. 4. 9. acr.
• * 1.408

  The Bill amend∣ed after a Writ of Error brought and before the Record was re∣moved.
• * 1.409

  Where the Pre¦nomen de∣stroyesthe quan∣tity inthe decla∣tion.
• * 1.410

  Where words in a Declaration shall be voyd, rather then the Declaration shal be voyd.
• * 1.411

  Nonage shall be tryed where it is alleadged, and not where the Landlyes.
• * 1.412

  Essoin lies in a writ brought by Journes ac∣count, although he was essoined upon the first Writ.
• * 1.413

  By Deed an im∣plicationbe in∣tended.
• * 1.414

  Nota.
• * 1.415

  By the Name of a Mannour the Land in all the Villiages will pass.
• * 1.416

  Nota.
• * 1.417

  Action brought by the Servant in his own name, part of the Goods be∣ing his Ma∣sters.
• * 1.418

  Nota.
• * 1.419

  Nota.
• * 1.420

  The Record of Nisi prius a∣mended upon motion.
• * 1.421

  The Process in Partition.
• * 1.422

  Error in Parti∣tion upon the first Judge∣ment.
• * 1.423

  Defendant pleads he had brought a Writ for the same land, and ad∣judged no plea.
• * 1.424

  Process in a Quare Impe∣dit.
• * 1.425

  Exception ta∣ken to the Ve∣nire, and over-ruled.
• * 1.426

  Severall Qua∣re impedits, may be brought against severall men.
• * 1.427

  Admittance of a Resignation by fraud, takes not away the Kings Title.
• * 1.428

  The state is de∣termined by the death of Tenant in Tail.
• * 1.429

  A presentment by words, good.
• * 1.430

  Nota.
• * 1.431

  A subsequent debt to the Qu. related to a∣ward an assu∣rance made up∣on good consi∣deration.
• * 1.432

  The King hath lost his presen∣tation by the Clerks death.
• * 1.433

  Defendant pleads another writ depending against the said Bishop, & good.
• * 1.434

  The Bishopsplea shall not preju∣dice the Incum∣bent.
• * 1.435

  Nota.
• * 1.436

  Liberty to make Leases.
• * 1.437

  A devise for years in confi∣dence, the con∣dition must goe to the estate, and not to the use.
• * 1.438

  The scisin of rent reserved upon a Feos∣ment within the time of li∣mitation not to be traversed.
• * 1.439

  Nota.
• * 1.440

  The beast of a stranger shall not be distrein∣ed for rent ex∣cept they have been upon the land some time.
• * 1.441

  Demand not necessary in a Replevin for rent.
• * 1.442

  Nota.
• * 1.443

  Exct••tion to the advowry too late after judgment en∣tred.
• * 1.444

  Replevin not within the sta∣tute of 3. Iac.
• * 1.445

  Iudgment arre∣sted, for that the plea was naught.
• * 1.446

  Nota.
• * 1.447

  Nota.
• * 1.448

  The Plea naught for want of a∣mendment.
• * 1.449

  Amends made to the Bailiff not good.
• * 1.450

  If one inclose part, it is an Extinguishment of Common for cause of vici∣nage.
• * 1.451

  Avowry a∣mended after Entry by con∣sent.
• * 1.452

  One of the Ju∣ro••s names mistaken in the Pannell of the Return, and amended upon the Sheriffes Oath, that he was the same man.
• * 1.453

  If two men di∣strain one Mare, and both have Judgement, no Return.
• * 1.454

  Court Baron in order to the Mannor.
• * 1.455

  Nota.
• * 1.456

  Nota.
• * 1.457

  A lease for life to three to hold successively, naught.
• * 1.458

  The pannell of the Habeas Corpus amen∣ded upon Oath.
• * 1.459

  Nota.
• * 1.460

  Atturnment not necessary for a Copy-holder.
• * 1.461

  Demand neces∣sary for a No∣mine pene.
• * 1.462

  Common Ap∣purtenant and purchase part, the Common is gone, but not if Appendant.
• * 1.463

  Nota.
• * 1.464

  Nota.
• * 1.465

  Demand of Rent service upon the Land sufficient.
• * 1.466

  Nota.
• * 1.467

  A Commoner may take the cattell of the Lord damage fesant.
• * 1.468

  Judgment ar∣rested for not shewing in what place the Messuage did lye to which the Common did belong.
• * 1.469

  Common, when the field and a∣cres unsown the sowing of parcell shal not debar him of his common in the residue.
• * 1.470

  When a Deed is perfected and delivered as a Deed, one a∣greement after pleaded in de∣feasance there∣of, and when the agreement is parcell of the Original con∣tract, it may be pleaded.
• * 1.471

  The Defendant in his Demur∣rer ••nswers not the whole De∣claration, and Judgement re∣versed.
• * 1.472

  The mistake of the day of an Act by way of Bar, not preju∣diciall.
• * 1.473

  A confession after an issue joyned, refused.
• * 1.474

  A Constable cannot detaine one, but for Felony.
• * 1.475

  Marshalsey hath no autho∣rity to hold plea in debt, except both are of the Houshold.
• * 1.476

  Judgment be∣fore a wrong Officer errone∣ous.
• * 1.477

  The Court could not mitigate damages in trespass which was locall.
• * 1.478

  The Defendant justifies the im∣prisonment by the command of the Maior of London, and naught.
• * 1.479

  Just. of Peace cannot com∣mand his ser∣vant to arrest in his absence without war∣rant in wri∣ting.
• * 1.480

  If a servant be beaten, & dye, the Mr. shall not have an a∣ction for the losse of his ser∣vice.
• * 1.481

  Declaration shall not a∣bate for false Latin.
• * 1.482

  A man cannot prescribe to be a Justice of the Peace.
• * 1.483

  If a Book that ought not be gi∣ven in evi∣dence, the Court above cannot remedie it, ex∣cept it be retur∣ned with the Postea.
• * 1.484

  A release to Tenant at suf∣ferance, void.
• * 1.485

  Commoner can∣not chase the Lords Cattell, if the surcharge be Common.
• * 1.486

  The Statute of 13 Eliz. for non-residence a generall law.
• * 1.487

  Where Husband and Wife shall be joyned, and where severed in Action.
• * 1.488

  The Venire fa∣cias vicious, no damages in Partition.
• * 1.489

  If the Jury find a man guilty in Trespass for a foot, where it is layd in an Acre, good e∣nough, and so in all Actions where damages onely are to be recovered.
• * 1.490

  Nota.
• * 1.491

  Error assigned because in tres∣pass nothing was entred of the Fine, &c. where it was a continued trespass, and part of it was layd to be after the Pardon.
• * 1.492

  Nota.
• * 1.493

  Nota.
• * 1.494

  If the verdict find the tenure in substance, though not in manner and form, it is good intrespasse.
• * 1.495

  Difference be∣tween Reple∣vin and Tres∣pass.
• * 1.496

  In a writ to en∣quire of dama∣ges, the Plain∣tif is not bound to prove the property of goods, but the value only.
• * 1.497

  Where of his own wrong without such cause shall be a good issue and where not.
• * 1.498

  The Defendant prescribed for a passage over Land, and naught, it should have been for a way.
• * 1.499

  Nota.
• * 1.500

  If the Lord cut the Wood in which the Commoner hath Estovers, he shall have an Action of the Case, but not an Assise.
• * 1.501

  Nota.
• * 1.502

  Nota.
• * 1.503

  Nota.
• * 1.504

  An action will not lie for the counter-part of an Indenture without a spe∣ciall grant.
• * 1.505

  Nota.
• * 1.506

  A man cannot Justifie the dig∣ging of a mans ground in hunt∣ing a Badger.
• * 1.507

  Nota.
• * 1.508

  Nota.
• * 1.509

  One Venu out of two places in the same County.
• * 1.510

  Whether a Co∣pyholder may lop the trees growing upon his Copy-hold, and held he might.
• * 1.511

  The Copy-hold∣er is in by cu∣stome, which is above the Lords estate.
• * 1.512

  The Copy-hold∣er shall have trespas upon the Case a∣gainst the Lord for cutting down of trees.
• * 1.513

  Nota.
• * 1.514

  Nota.
• * 1.515

  Nota.
• * 1.516

  Nota.
• * 1.517

  Nota.
• * 1.518

  Nota.
• * 1.519

  Waste in the Tenuit for digging of Sea coals.