The reports of that reverend and learned judge, Sir Richard Hutton Knight sometimes one of the judges of the common pleas : containing many choice cases, judgments, and resolutions in points of law in the severall raignes of King James and King Charles / being written in French in his owne hand, and now faithfully translated into English according to order.

PASCH. 15 JACOBI.

Combes versus Inwood.

THE first day which I sate at the Bench, after the day in which I was sworn,* 1.1 i. e. Thursday the twenty second of May; A Iury was at the Bar from the County of Surrey, in an Ejecti∣one firmae, brought by Combes against Inwood, upon a Lease made by one John Stockwood, which was Heir to one Edward Stockwood, and was for a Farm in Chertsey, called Hayl∣wick: And upon Evidence the Case appea∣red to be th••••s.

Edward Stockwood was seised in fee, and about the 29 Hen: 8. this Land was supposed to be conveyed to King Hen. 8. in fee, for the enlargement of the Honour of Hampton; but no Deed, nor any other matter of Record was in being to prove this originall Conveyance, and many Arguments were used to prove that there was never any such Conveyance, because there was not one of any such conveyance nam∣ed in the Act of 31 H: 8. But of the other part it was proved, that this Land had continued in exchange as the Land of H: 8. all his life, by di∣vers accounts; and that it had been enjoyed by divers Leâses made by Edward 6. and Queen Elizabeth, and Rent paid for them: And that in the year 16 Eliz. she granted it in Fee-farm to the Earl of Lincoln, and under that Title the Land had been quietly enjoyed untill of late time.

And the Court delivered their opinion, That it there were a Deed by which Stockwood conveyed the Land to H: 8: and that brought into the Court of Augmentation; although this Deed be not found nor inrol∣led, yet it is a sufficient Record to intitle the King, and it is a Record by being brought into Court, and there received to be inrolled. And the Report of the case in Lord Dye••, fol: 355.19 Eliz. was not as it is there reported, for it was for Bormi•• Inne, and it was adjudged a good conveyance; and in this case the Iury found for the Defendant.

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Trin. 14 Jac. Rotulo 769. Steward versus Bishop.

* 1.2STeward brought an Action upon the Case for certain words against Bishop, because that the Defendant said, Steward is in Leicester Gaol for stealing an Horse and other Cattell, the Defendant pleaded not guilty, and the Iury found for the Plaintiff, and Damages to thir∣ty pounds: And it was moved in Arrest of Iudgment by Serjeant John Moore, that the Action doth not lye, for the words do not affirm and Deed, or Act, or Offence, but that he was in prison upon suspition of an Offence: And it is the Ordinary speech and communication by way of interrogation; What is such a one in prison for? For stealing: And all the Kalenders are, such a one for stealing of a Horse, such a one for Murther, Vide Coke lib: 4. he is detected for Perjury, is not a∣ctionable; And to say such words of a Iustice of Peace, or an Attorney, peradventure it shall be otherwise, yet it seems all one, if it touch not him in his Profession. To say that I. S. was in Newgate for forging of Writs, will not maintain an Action, and so adjudged in Nowels case, and Iudgment was given that the action will not lye.

Pasch. 15 Jac.

ONe brought and Action upon the Case, and counted, that the De∣fendant (in consideration that the Plaintiff would take such a wo∣man to his Wife) promised to pay twenty pounds when he shall be therto requested after the marriage,* 1.3 and that the Plaintiff such a day had married the said Woman, and the Defendant (though often reque∣sted) did not pay the aforesaid twenty pounds: And it was moved in Arrest of Iudgement, that he had not shewn any particular request; but yet Iudgment was affirmed for the Plaintiff, for this action is grounded upon the promise, which imports Debt, and not upon any col∣laterall matter, which makes it a duty by the performance of a colla∣terall Act upon the request.

Trin. 15 Jac. Resolved upon the Statute of 3 H. 7. Cap. 2.

VPon divers Assemblies at Serjeants Inne of all the Iudges to con∣sider (by the direction of the Star-Chamber) whether by the Sta∣tute of 3 H: 7. cap: 2. the taking of any Woman against her will, and the marrying or deflowring of her, be Felony, or only of such a Woman which hath Substance, or Goods, or Lands; or otherwise be an Heir ap∣parent, the body of the Act seems to be generall, viz. He that shall take any Woman so against her will: And it was said, that it were a great inconvenience that it shall be Felony to take an Heir apparent of a

poor man, or to take a Woman which hath but a very small Portion, and of mean Parentage, and (as it was said) of a Woman in a red Peticote, and that it shall not be felony to do and commit the said Of∣fence in taking the Daughter of an Earl, or some other great man of the Realm. But it was resolved that the body of the Act was incorpo∣rated to the Preamble, for it had been adjudged, that if one take a Woman with an intent to marry her, or deflower her, &c. and doth it not, this is not Felony, and this rests only upon the Preamble; then it shall have relation as well to such a Woman which is before named, viz. Maid, Widow, or Wife, having substance, and to an Heir appa∣rent, and to no other.

And so it was taken in a Case in the Star-Chamber by the like reso∣lution, 10 Jac. between Baker and Hall, and the Lord chief Baron said,* 1.4 that it had been adjudged, that no Appeal did lye upon this Statute, and all the Presidents in effect warrant this resolution, vide Stamford, fol. 37.

Statute 1 H. 4. Cap. 14.

COnsideration upon the Statute 1 H: 4. Cap: 14. was had, how the word Appeals shall be intended before the Constable and Marshall.

And 26 Eliz. Doughties Case,* 1.5 Petition was made to the Queen by the Heir to make a Constable and Marshall, but she would not.

Admitting that the King get a Commission of the Office of a Con∣stable and Marshall, whether the King may have any remedy before them by Indictment, or information by the Attorney generall.

Mich. 15 Jac. Andrews versus Hacker.

AN Assise of Darrein Presentment was brought by Andrews a∣gainst Hacker, and the Earl of Salop,* 1.6 and against the Arch-bishop of York for the Church of Gothur in the County of Nottingham; the Assise was brought to the Bar, and when the Iury appeared, the Arch-bishop made default, and the others appeared, and pleaded in abatement of the Writ, that the same Plaintiff had before brought a Quare impe∣dit against the Defendants for the same Church, which Writ was re∣turned, and that they did appear to defend it.

First, we must know that this Assise shall be taken only in the Com∣mon Bench, vide Mag: Char: cap: 13.* 1.7 then the Arch-bishop making de∣fault, and the Assise being awarded against him by default, if the other Defendants plead to the Assise, yet the Assise shall not be presented, be∣cause an Assise shall not be taken by parcels, and therfore a Resum∣mons shall be awarded against the Arch-bishop, and the same for the Iury.

But the other Defendants pleading their Plea to the Writ, the Court was of opinion that it was a good Plea in abatement of the Writ, for the Quare impedit is a Writ of a higher nature, vide Regist:

fol: 30. That if he against whom an Assise of Darrein presentment is brought, brings a Quare impedit, the Darrein presentment shall a∣bate: And the Statute of West: 2. cap: 5. saies, it may be in the Ele∣ction of one, whether he will have an Assise of Darrein presentment, or Quare impedit, ergo he cannot have them both.

And if an Assise of Darrein presentment be brought, and after that a Quare impedit for one avoidance, the Assise shall abate, for the Quare impedit is higher in his nature, that is, for the right, and for the pos∣session. And Iustice Warburton vouched 10 Ed: 3: Statham in Dar∣rein presentment 3. If a man shall have a Quare impedit, and also an Assise of Darrein presentment, of one and the same Advowson, pending at one and the same time, the Darrein presentment shall abate, and the Quare impedit shall stand, because that it is of an higher nature. By Hank and Hill, it was urged that the Quare impedit was not depend∣ing untill he had appeared, and it is not pleaded that he did appear, but vide 2 Ed: 4. fol: that it is depending when it is returned. And in a Quare impedit by the Earl of Bedford against the Bishop of Exeter,* 1.8 it was adjudged Pasch. 15 Jac. that he could not have two Quare im∣pedits of one Church, and for one avoidance. And in this Case the whole Court agreed that the plea was good in abatement of the Writ, and awarded that the Assise should abate.

Mich. 14 Jac. Rot. 3297. Shaw versus Taylor.

* 1.9BRidget Shaw brought a Replevin against George Taylor, for the ta∣king of an Horse at Northfield, in a place called Little falling; the Defendant makes Cognizance as Bayliff to Sir Thomas Gervas, be∣cause that one Richard Shaw was seised of an House and divers Lands, (of which the place where, &c. was parcell) in his Demesn as of Fee, and them held of the said Sir Thomas Gervas, as of his Mannor of Northfield, by Fealty and Rent of twenty pounds, and rendring and paying after of every Tenant (dying therof seised) one Heriot, and al∣ledged Seisin, and that he died seised: And that for one Heriot so due, and not delivered, he distrained in the place in which, &c. as within the Fee. The Plaintiff plead in Bar to the Avowry, and takes the whole Tenure by protestation, and for Plea saies, that the said Ri∣chard Shaw at the time of his death had no Beasts, wherof a Heriot might or could be rendred, upon which the Defendant demurrs.

And upon the matter it seemed to the Court, that if he had not any Beasts, than the Lord must lose it; for it is a casuall thing if he have it, unlesse the Custom or Tenure be to have the best Beast, or such a summ: And if he had conveyed it away, and so prevented him by any fraud, then the Statute of 13 Eliz. had provided remedy, but where there is nothing of any such thing, which may be rendred at the time of the death, there the King must lose his right. And it was resolved by the Court that the Cognizance was not good, for it ought to be cer∣tain, i. e. for the best, or two best Beasts, and not generally for one He∣roit, and not shewing what thing in certain, vide 3 Eliz: Dyer 199.

A Heriot is Quaedam prestatio, &c. and see there the Plea, that there was no Beast at the time of his death: And the opinion of the Court was also, that the Bar to the Avowry was not good, because the Is∣sue is tendred to a thing not alledged, for in the Avowry he made not mention of any beast, but generally of one Heriot, which is not certain; And therfore it was awarded that the Plaintiff should recover, and should have a return, &c. and Damages.

Pasch. 14 Jac. Rot. 907. Norris versus Stapes.* 1.10

Berk.

RObert Norris and Thomas Trussells Warden••, and the Society of Weavers, in the Burrough of Newbury,* 1.11 in the County of Berk∣shire, brought an Action of Debt for five pounds against John Stapes, and Count, that Queen Eliz. by her Letters Patents, 14. of Octob: An: 44. at the request of the Inhabitants there using the Art of Wea∣ving, and to the intent that Corruption therin might be taken away and avoided, &c. did grant to all Weavers within the said Town to be a Body Politick, by the name of the Wardens and Society, &c: as be∣fore, and to have perpetuall succession & power to purchase, to plead, and to be impleaded: And also power to make Laws and Ordinances agree∣able to reason, and not in any wise contrary and repugnant to the Laws and Statutes of the Realm, for the well Government of the Society, Apprentices, and Servants, and all using the Trade of weaving or selling of any thing therto belonging within the same Burrough, and power to inflict punishment by Imprisonment, Fine, or Amercement upon the Offenders: And granted further, that the said Wardens and Society shall have the survey of those Lawes, and the benefit of the For∣feitures; And that no other person, born within or without the said Burrough, shal exercise the Art of weaving within the said Burrough, if he shall not be admitted therto by the Wardens and Society. And they recite the Act of 19 H: 7. cap: 7. of not putting of any Law or Or∣dinance in execution, before it shall be allowed by the Lord Chancel∣lor, Treasurer, and two chief Iustices, or three of them, or before both the Iustices of Assise in their Circuits, upon pain of forfei∣ting forty pounds: And shew that one Cuthbert Goodwin, and John Hame Wardens of the said Society, with the greater part of the said Society, 1. Maij 45 Eliz. at the Guildhall within the said Burrough, made divers Lawes and Ordinances for the Go∣vernment of Weavers; and that the 18 Novemb. 1 Jac. the said Or∣ders were confirmed by the Lord Chancellor, Lord Treasurer, and Lord Anderson one of the chief Iustices, among which one was, that none should use the Art of Weaving within the said Burrough, or should have any Loom in his house or possession, to have any benefit therby, unlesse he had been an Apprentice to the said Art within the said Burrough, for the space and term of seven years, or had used the said Art within the said Burrough for five years before the making of the said Ordinance, or shall be admitted therto by the Wardens and Society, upon pain of forfeiture for every month twenty shillings.

And they further shew, that after the said Ordinance made and con∣firmed

the Defendant (such a day) before his inhabiting in the said Burrough; and after (such a day) that one William Godwin being then Warden of the Weavers, gave notice to the Defendant of the said Ordinance, and that he afterwards, &c. during five months con∣tinued using the said Trade there, and that he had two Looms in his possession, where he had not been an Apprentice, nor used the said Art for five years, as before, &c. by which he forfeited to them five pounds, viz, for every month twenty shillings.

The Defendant pleaded Nil debet, and after Verdict for the Plain∣tiffs, it was moved by Arrest of Iudgment, that this Ordinance was not reasonable: and upon Arguments and Conference, without ar∣guments at the Bench, it was agreed that the Ordinance was against Law, and Iudgment against the Plaintiffs.

And Lord Hobart in Hil: 15 Jac, declared, that we were all of opinion that Iudgment should be given against the Plaintiffs: And he repea∣ted the Case and the reasons of this Iudgment, because the Ordinance was, that none should use the Trade of Weaver, nor have any Loom in the Town, unlesse he had served, &c. before the making of this Or∣dinance, so that all Apprentices which serve after shall be excluded, unlesse they shall be admitted by them, which is unreasonable: And the Plaintiffs do not convey to themselves any good Title to be War∣dens, but as to the principall point of making such a restraining Or∣dinance, the Court did not deliver any opinion.

Mich. 15 Jac. Rot. 2327. Dorrell versus Andrews.

SUsan Dorrell brought an action of Debt against Sir Eusebius An∣drews,* 1.12 and John Cope for eighty five pounds, and count upon a Lease made by her to the Defendants by Indenture, by which she demised one Capitall Messuage, Mannor, or House called Causton, within the Parish of Dunchurch in the County of Warwick, and all the Stables, &c. in Causton aforesaid.

The Defendant protesting that the Rent was not behind, for Plea saies, that before any Rend arrear the Plaintiff entred into severall parts of the house, and him dispossessed, and upon that they were at is∣sue, and the Venice facias was de vicineto de Causton within the Pa∣rish of Dunchurch: And it was moved in Arrest of Iudgment, that the Venire facias should be of the Parish only, and not of Causton, for Cau∣ston is not alledged as a Town, but the name of a house: And the Court resolved that the Ven. fac, was good, for Causton is alledged as a Town in the Parish of Dunchurch, and that by the addition and generall words in the Demise, in which also there was an exception of part of the House as Mannor-house at Causton aforesaid, so that the house is alledged to be in Causton, in the Parish of Dunchurch, if all be conside∣red: And if it appear that Causton is a Town or Village in the Pa∣rish of Dunchurch, it will be without any doubt good.

And my Lord Hobart said, that it had been divers times adjudged, that on the Allegation of a thing done at the Town of Dale in the Pa∣rish of Sale, that the Ven. fac. of the Parish is good, for though the Pa∣rish

may contain more Towns, yet it is not to be presumed but that it is of one Continent, if the contrary appear not by the Record, vide for that Pasch: 9 Jac. between the Lord Candish, and Sir George Sa∣vill, &c. There was another exception taken to the pleading,* 1.13 which I have not transcribed.

Trin. 14 Jac. Rot. 755 Swaine versus Holman.

RIchard Swaine Plaintiff,* 1.14 against Thomas Holman and Elizabeth his Wife, brought Wast, and declared of a Lease made: Anno the 8. of Eliz: by the Queen, under the Exchequer Seal, to William Jolliff, Thomas Jolliff, and Elizabeth Jolliff, for three lives, and that William and Thomas were dead, and convey the remainder to the King that now is, and from him to the Plaintiff, and that the Defen∣dant Elizabeth took H. to Husband, which did wast, &c.

The Defendants confesse the Lease, death, and marriage as above, &c and say, that the said Holman and Elizabeth his wife, 2. Feb: 40 Eliz. surrendred as well all their Estate of the said Elizabeth, as the Letters Patents, to the intent that the Queen should make a new Lease to the said Elizabeth, and to Humphrey Holman, and to Roger Holman for their lives successively, which surrender the Queen accepted, and the third of Febr: next made such Demise, and this they are ready to aver, &c.

The Plaintiff replies, and joyns Issue upon the Surrender and De∣mise in manner and form, and the Issue was tried by a Venue which came from Westminster, and the Iury found this speciall Verdict, viz. the new Lease made the third of Felic: in which it is recited that she had surrendred the Estate, and the Letters Patents, and the Queen as well in consideration of the surrender of the Letters Patents, as in consideration of the payment of twenty Nobles made by the new Lease, and the Iury found that the Demise made the third of Febr: was with the consent of the said Thomas Holman, and that the said Thomas Holman and Elizabeth his wife agreed therto, and held in claiming by the said Demise: And it was adjudged by the Lord Ho∣bart, and others the Iustices, that the Plaintiff should have Iudg∣ment.

First, the consideration which procured the new Lease is the Sur∣render, and the Surrender is not absolute but defeisable if the wife survive, or if the Husband will disagree; and therfore the Lord Ho∣bart said, that if Feme Lesses for years takes Husband, and after the Feme takes a new Lease of the Queen for life, this extinguisheth the term; but if the Husband disagree, then the Lease for yeers is revi∣ved. And as in Barwicks Case, the surrender of all the Estate where he had made a Lease for years before, or where the Lease which he surrendred was void, the new Lease made 〈◊〉〈◊〉 consideration therof is vein, for the Surrender which is the consideration, ought to be a good surrender of the former Estate: And therfore if Lessee for life of the Blemise of the King surrender conditionally, and the King reciting

that he had surrendred all his Estate, makes a new Lease, this shall be intended an absolute Estate, for a conditionall surrender within three years of the Lease, is not a surrender within the Act of 32 H: 8.

2. Another reason, because that the Free-hold which the Husband had in the right of his Wife, could not be given by this bare as∣sent; But if the Lease had been made, de novo, to the Husband and the Wife, then it had been questionable, for the Estate passe by Implica∣tion, viz. by a surrender in Law, by acceptance of a new Lease, as in the eighth Report of the Lord Coke, S. Savors Case, but there no Estate of the Husband passe, for by the inter-marriage he was in of the Free∣hold with his Wife, in the right of his Wife, and that he gives not by assent, vide 7 H. 7.14: vide 41 E: 3. fol. 19.

3. Another reason was, as this issue is joyned, it is found against the Defendants, for it shall be therby taken and intended of an actuall surrender made by the Husband and Wife, and not of such a surren∣der which is operated by a subsequent act in Iudgment of Law, and the reason therof is, because that the surrender of the Estate, and the cancelling of the Letters Patents are pleaded to be done at Westmin∣ster, 2 Febr: and the Lease, 3. Febr: so that this Issue is taken upon an actuall surrender: And by Warburton, if issue be joyned upon the Manumission of a Villain, that is not maintained by giving in evidence that the Lord made to him an Obligation, but by the making of him free by Charter of Manumission, vide the Case directly, 25 H: 8. Brook generall Issue 82. vid: Dyer 284. Croucheads Case.

Memorand. That in this case the Jury of Middlesex found the Dama∣ges, and the value of the Wast in the County of Dorcetshire, vide Coke liv: 6. fol. 47. Dowdales Case.

Mich. 15 Jac. Rot. 1634. Gibbs versus Davie.

EDward Gibbs brought an action upon the Case against Jenkin Davie, for words spoken in the Welsh Tongue, and declared that the con∣ference was had by Baron Snigg with the Defendant, concerning the selonious stealing of three Heisers, and the Defendant is supposed to answer to the question in Welsh, whether Thomas Jackson stole them; If he had them,* 1.15 I should have had them again, but Edw. Gibbs stole them: And upon Not guilty pleaded, it was found for the Plaintiff at Bristoll, And it was moved this Term in Arrest of Iudgment, that the words in Welsh did not signifie stealing, but carrying away upon ones back: And it appeared upon examination of one Mr. Gunter upon Oath, that it is properly the word for carrying, though that there in the intendment of the parties it might be taken for stealing, it being joyned with other precedent circumstances, yet it is not actionable, for it shall be taken in the most favourable construction and best sense, as if one had said, That such a one had the Pox, and forbid one to use his company, it shall not be intended of the French Pox, and no Action lies: And Iudgment was given for the Defendant, yet it was averred in the Count, that the words were spoken in the hearing of them which understood the Welsh Language.

Micih 14 Jac. Rot. 953. Leigh versus Paine.* 1.16

MAtthew Leigh brought an action of Debt upon an Obligation a∣gainst Matthew Paine,* 1.17 which was with condition for the perfor∣mance of an Arbitrement, which was of all Actions, Quarrels, &c. de∣pending between them: The Arbitrators award that the Defendant should pay to the Plaintiff such a summ,* 1.18 &c. for content and in full sa∣tisfaction of all Actions, Quarrels, &c. untill the day of the date of the Arbitrement: And upon Demurrer by the Defendant, it was deba∣ted whether this was a good Arbitrement, it being that the Arbitra∣tor had exceeded his Authority in giving satisfaction for trespasse after the submission, that is, untill the date of the Arbitrement; and it see∣med to the Court that it is a good Arbitrement, and that it appears not to the Court that there were any Trespasses or Suits after the submission, and that shall not be intended untill it be shewn by the other part; as in the case of Baspool, Co. lib. 8. fol. 98. where submission was of all controversies, so that the Award be made of the Premisses, &c. there the Arbitrators made an Award of divers particulars, and the Award was good, and he that will avoid it must shew that there were other controversies, & that he gave notice of them to the Arbitrators, for they shal not be bound to arbitrate of more then they have notice of, Dy: 242.19 E. 4.1. vide Summons case, Coke lib. 5 fol: 77: That an Award ought to be reasonable, and to be done between the same parties: And ther∣fore the Arbitrement that the Husband and Wife shall levy a Fine where the submission was by the Husband only, is void (but quaere) if it be not good as to the Husband, and vide in James Osborns case, Coke lib: 10. fol: 131. There the case of More and Bedle is bouthed, and is adjudged that where it is awarded that a certain summ shall be paid, and for the payment thereof a stranger shall be bound, it is a good Award, though as to the giving of security by a stranger it is void, and there it is said, if satisfaction be to be given for many things, of which part is out of the Award, yet it is good for them which are sub∣mitted unto, vide 42 & 43 Eliz: Newby and Sav:* 1.19 An Award to make a release to the date of the Arbitrement, and good if it does not appear that there was other matter. A submission of all matters done till the fourth of September, the Award was of a Release of all matters untill the third of September, and good;* 1.20 And this case was vouched to be be∣tween Barnes and Grenewell, Trin: 43 Eliz: Rot: 947. vide a case be∣tween Hilton and Brown, Trin: 5 Jacobi Rot: 1618. an Arbitrement was made generall in satisfaction of all Controversies Indefinitely without any limitation: And upon Argument upon Demurrer, it was adjudged good, and in this case the Arbitrement will not dis∣charge any action which was not submitted unto; and then it is but Surplusage which shall not avoyd the Award, though the Plaintiff hath mine recompence by the Arbitrators, In respect that the Defendant shall be discharged of trespasses untill the making of the Arbitrement: And Iudgment was giuen for the Plaintiff.

Mich. 11 Jac. Rot. 318. Agars versus Lisle.

* 1.21THomas Agar brought an action upon the Case against Lisle, for stud∣ing and converting of a Cow at the Castle of York, the Defendant pleaded in Bar, that the Bishop of Durham was seised of the Town of Darton, in the County of Durham, and prescribe to have a Faire there and Toll, and for not payment thereof, &c. the Cow was taken by the Defendant,* 1.22 as Servant to the Bishop of Durham, Absque hoc, that he was guilty at the Castle of York, or any where else, &c. And this Case was long depending, and the first point was, if the Defendant had confessed any conversion, for that is the ground of the action, and ought to be traversed, or else confessed and avoided: It was agreed, that the Conversion is the ground of the Action, Brook 1 Mar. Trespass 121. and the Inducement ought to be such as con∣tain sufficient matter with the Trespasse, vide 9 E. 4, 5. 19 H: 6.30.22 Then it was agreed,* 1.23 that when one takes a Distresse and such an action is brought, that is no plea, for that is not any conversion, vide 27 H. 8.22. Coke lib. 10. fol: 46, 47. Request and refu∣sall to deliver, is good evidence to prove conversion, but if it be found specially it shall not be adjudged Conversion; and Iudgment was gi∣ven for the Plaintiff, because the Defendant did not claim any pro∣perty, and did not answer to the point of the Action, for a Distresse is no Conversion.

Hil. 15 Jac. Coble versus Allen.

Norf.

* 1.24COble brought an action of Trespasse against Allen for breaking his Close at Barningham, and by the new Assignment divers parcels were assigned, the Defendant as to part pleads that he was seised of an House and thirty acres of Land in Colby, and prescribe to have a way over them to his Common in Barningham;* 1.25 and for the other parcels prescribe that he and all those whose Estate he hath in the said house in Colby, used to have for themselves and their Families, one way for Pack-horses over the said other parcels of Land in Barning∣ham, unto the Kings high way leading to the City of Norwich: And Issue was joyned upon these two Prescriptions, and found for the Plaintiff: But it was moved in Arrest of Iudgment, that the Ve∣nue was from Barningham and Colby, and that in the Plea there is not mention of any place where the Common lies, and therefore there is not any tryall; but it was adjudged that the tryall was good, for though that the proper use of a way is to some end, and that ought to be shewn, yet if it be only that he had a way over the Closes of the new Assignment; and no place or end therof is pleaded for what cause, or to what other place, and Issue is taken upon the Prescription, and found, the Prescription is good: And another reason was there by Implication; it is indifferent whether the way lies in B. or in ano∣ther Town, and by intendment rather it may be taken to lye in B. and then if by one intendment the tryall may be good, it shall so be in∣tended.

But when it appears that the tryall shall be in three Towns, and the Ven: fac. is but in two, this is not aided, for it is a Mis-triall, and there must be a Venire facias de novo, but in this case no new Ve∣nice can be awarded, and then it is but a Jeofaile for not pleading in which Town the way lies, and then it is alo••••; and also unto the Kings high way, may be taken that this Kings high way is contigue ad∣jacent to these Closes where the way is by Prescription: And for these reasons and causes Iudgment given for the Plaintiff.

Harding versus Bodman.

RObert Harding Plaintiff, against Bodman Defendant,* 1.26 in an action upon the Case, recites, that wheras the Plaintiff brought an a∣ction upon the Case against one Lenning for calling of him, &c. the De∣fendant upon the tryall, being produced for the Defendant as a Wit∣nesse, gave evidence upon his Oath to the Iury,* 1.27 that the Plaintiff was a common lyar, and so recorded in the Star Chamber, by reason of which Evidence (though the Iury found for the Plaintiff, yet by rea∣son hereof) they gave but small Damages to the Plaintiff: And up∣on not guilty pleaded, it was found for the Plaintiff; and upon motion in Arrest of Iudgment, it was adjudged that this is a new invention, and that no action lies for it. First, because that it is impossible to be known whether the Iury gave greater or lesse Damages for that or not: Also by this means every man which is produced as a Wit∣nesse by one way or other, may be subject to an action upon the Case; and also by any thing which appears to the Court, the Evidence was true, for it was not averred that Revera, that the Plaintiff was not a common lyar, & that he was not recorded for a common lyar, in the Star Chamber; And for these reasons the Plaintiff. Nil capiat per breve, &c.

Trin. 15 Jac. Rot. 1968. Speake versus Richards.

South.

HUgh Speake brought an action of Debt against Edward Richards,* 1.28 for 523 l 17 s 8d and declare, that Anthony Hall, and Henry Paramour 22. June 13 Jac. became obliged to the Plaintiff by Recogni∣zance in the Chancery in 2000 l and that they did not pay it, wherupon the Plaintiff had two Sci. fac.'s to the Sheriff of Middlesex,* 1.29 who return∣ed Nihil, wherupon Iudgment for the Plaintiff, and a Levari facias a∣warded to the Sheriff of Southampton, returnable 15 Mich. which Writ was delivered to the Defendant, being then Sheriff, to be exe∣cuted: The Defendant before the Return levied by vertue of the said Writ, the said 523 l 17 s 8 d of the Lands and Chattels of the said Henry Paramour, parcell of the said Debt, and at 15 Mich. returned that he had levied the said 523 l 17 ••. 8 d parcell, &c. which summ he had ready at the day to deliver to the Plaintiff in part of satisfa∣ction, &c. And that the Defendant (although often required therto) refused to pay the said 523 l 17s 8d (by cause wherof this action ac∣crued) nor brought it into Chancery, and to have the parties, &c.

The Defendant as to three hundred and eight pounds, part therof, pleaded Nil debet, to two hundred and fifteen pounds seventeen shil∣lings eight pence, residue therof, Actio non: For he said, that after the Writ directed, and before the return, viz. 31 Augusti, 14 Jacobi, the Defendant at Westminster paid it to the Plaintiff, upon the receit wherof, the same day the Plaintiff gave an Acquittance for the same (which he pleads) and therby acquitted and discharged the Defendant, and demands Iudgment if against his own Deed of acquittance he shall be received to demand the said money, wherupon the Plaintiff demurred.

And it was argued by Serjeant Richardson for the Plaintiff, and by John Moore for the Defendant: An exception was taken that he could not plead Nil debet, because that it is a Debt upon Record, for he is charged by the return; He is not estoppled to plead payment be∣fore the return, because it is another Action, and the Sheriff might have paid it to the Plaintiff, though he return that he had the money ready to be delivered to him; for if he had after that paid it to the Plaintiff, that was good satisfaction, and he might as well pay it af∣ter he had levied it, and before the return, as he might pay it after the return, and then Nil debet is a good Plea.

But it was objected, that by the return 15 Mich. that he had the mo∣ney ready (and that after the acquittance) his return should conclude him: And it was said that it would not, for it is in another Action and stands therwith, 22 E: 4.38. One vouched as Heir may be bound to Warranty by his Father, and if he bring an Assise De morte Ante∣cestoris, and the Tenant plead Bastardy, it is no Estoppell that the Defendant vouched him as Heir before.

The Acquittance or Release is good before the return, and not like unto Hoes Case of Bail, Coke: lib: 5.71. or 5 Eliz: Dyer 217. Release of Actions and Suits will not release a Covenant before it be broken.

Object. That the Acquittance or Release is pleaded only by reci∣tall.

Res. To this it was answered, that he had paid the two hundred and fifty pound, seventeen shillings eight peace, which the Plaintiff had accepted, and the Plaintiff by Demurrer had confessed the Deed, and all that is contained therin, then it appears that he is satisfied, and that the release in matter as it is recited shall be an Estoppell, vide 46 Eliz. 13. But it seemed that it is no Estoppell by the reciting in the Release that which is in possession, but that afterward he might well say, that he was not in possession at the time of the Release, and all the Court agreed, that the Acquittance or Release, and receit of the mo∣ney is a good Bar as to two hundred and fifteen pounds, seventeen shil∣lings eight pence, and so it was adjudged: But whether an Action of Debt lies against the Sheriff upon this return is questionable, yet that it is not any Contract, Account, or Loane, upon which three proper∣ly an Action of Debt lies, as it is said M. 18. E. 4.23. and 41. E. 3.10. and 42 E. 3.9. When money is delivered to be delivered over, that no Debt lies if it be not delivered over, but Account, vide 34 H. 6. 36. a. 9 E: 4.50. And the Court inclined, that in this Case Debt lies, for it is a generall Contract: In Dowses Case, the Sheriff levy part and do not return it, but the party pay it, Debt lies against the Sheriff: And if money be delivered to buy Land, if he buy it not, Debt lies, or Ac∣count.

Mich. 15 Jac. Rot. 636. Stone versus Roberts.

STone brought an Action upon the Case against Roberts for these words; The Plaintiff is a Witty, and an Inchaunter,* 1.30 and hath be∣witched the Children of one Strong: And Iudgment for the Plaintiff;* 1.31 For though Witch is a word of malice, and familiarly used to old poor women, and therfore no Action lies, yet here it is coupled with a Deed, by which the Plaintiff is drawn in danger of his life, by the Statute of 1 Jac.

Hil. 15 Jac. Rot. 710. Crawley versus Kingswell.

RIchard Crawley Plaintiff, in Roplevin against Richard Kingswell,* 1.32 for taking of one Cow at C. the Defendant makes Conuzance for ten pounds Rent-service come Bayliff to his Father, the Plaintiff confesse the Tenure, but alledge that at our Lady day (which was one day of payment) he was upon parcell of the Land,* 1.33 and there was rea∣dy and offered to pay it, and remained there till after the setting of the Sun: The Defendant replyed and (protestando that he made no such tender) for plea saith, that after that, and before the Distresse, viz. such a day, he at this Close demanded the Rent, and none came there to tender or pay it, for which he did distrain, and praies a return, &c. and avers that the Plaintiff nor any other, neither at the time of the distresse, nor at any time after offered to pay the Rent, wherupon the Plaintiff demurred; and it being argued by Hendon and John Moore, it was adjudged by the whole Court that the Defendant shall have a return: And a diversity was taken between this and Homage, where one makes a tender to the party, and he refuse, there he cannot distrain, because it is a personall thing which cannot be performed (as pay∣ment of a Rent may) by another hand, vide Litt. fol: 35.21 E: 4.17.7 E: 4.4.20 H. 6.13. Also it was agreed, that the tender there by the Te∣nant at the day is not materiall, but if he had tendred it when the Distresse was taken, the taking should be tortious. 30 Ass: 38. vide 22 H: 6.36, & 37.21 E: 4. b. 45 E. 3.9. vide Litt. 7. fol: 28.

Demand necessary only for a Penalty.

26 Eliz. Certain Cases vouched in an Action for words.

GIttings Plaintiff in the Exchequer, against Redserve. Gittings is a cousening Knave, and so I have proved him before my Lord Mayor, for selling me a Saphire for a Diamond, the Action does not lye: And by Manwood, if A. saies of B. Thou art a cousening Knave, and hast cousened me of five hundred pounds, no Action lies, which the Court agreed.

Banco Regis 30 Eliz. George versus Whitlock.

HE is a cousening Knave, and consened a poor man of a hun∣dred pounds, and all the Georges are cousening Knaves, no action lies,

Hil. 30 Eliz, B. R. Walcot Plaintiff versus Hind.

HE is a cousening Knave, and hath cousened me of forty pounds, adjudged no action lies: And upon Error brought in the Exche∣quer, Iudgment was affirmed; and it is said that our Law takes no notice what a Cousener is.

Trin. 37 Eliz. Brookes Case.

HE is a false Knave, and keeps a false Debt Book, for he charg∣eth me with the receit of one peece of Velvet which is false, not actionable.

Mich. 37 and 38 Eliz. Charter versus Hunter.

THou art a Pilfring Merchant, and hast Pilfred away my Goods from my Wife and my Children not actionable:

A Butcher and his Wife brought an action upon the Case against B. and his Wife, and shew that the Plaintiff used the Trade of a Butcher, and that his Wife in his absence sold and delivered flesh, and the words were, that the Wife of the Plaintiff is a cousening woman, and hath cousened one of her Neighbours of four pounds; And it was alledged over, that she the Defendant would bring good proof of it, and adjudged that an action lies not.

Trin. 13 Jac. Rot. 650. Heard versus Baskerfield.* 1.34

Devon.

WIlliam Heard Plaintiff,* 1.35 against Richard Baskerfield in Reple∣vin for taking two Cowes at Brood, the Defendant makes Co∣nuzance as Bayliff to John Dinham Esquire, and shows that Walter de la Therne was seised in Fee of twenty acres of Land, wherof, &c. And by his Deed (shewn in Court) 12 E. a. granted a Rent-charge of two shillings out therof to John Milleton and Walter Milleton,* 1.36 John Milleton dies, and Walter survived and died seised; and this Rent de∣scended to one John Milleton of P. as Cosin and Heir to the aforesaid Walter, and he was seised in Fee; and one John Dinham was seised in Fee of one house and twenty acres of Land in Pensons, and by Deed (shewn in Court) exchanged them with the said John Milleton for the said Rent; and Walter de la Therne being seised of the Land, out of which the Rent issued, attorned, and gave Seisin of the Rent to John Dinham, wherby he was seised in Fee of the Rent, and convey∣ed the Rent by three discents to this John Dinham, for whom the De∣fendant makes Conuzance for ten shillings for five years arrear: And the Plaintiff demurs generally upon the Conuzance. And the cause was, that it is not shewn how John Milleton is Cosin and Heir to Wal∣ter upon the discent.

First, if it be good as this Case is, viz. That he claimes not as Cosin and Heir, but makes Title under him by conveyance after∣wards: Also because the Defendant makes Conuzance and is a stran∣ger.

Secondly, if it be but forme.

And this Case was argued at Bench briefly, in Trin. 16. And I was of opinion, because that this is the Conuzance of a Bayliff, and it is a discent in one blood, to which Dinham is a stranger, and because that a good Issue might be taken therupon as it is alledged; And if it had been a case of Bastardy, the Iury might have tryell it, therfore it is good by the Common Law, and differs from a Formedon, for there he which brings it is privy, vide 41 Eliz. 13, & 14 in a Scire facias, good without shewing how, 33 H. 6. 34. Sir T. C. Case, 27 H. 6. 2. 4 E. 3. 43. vide 19 E. 3. Quare impedit 58. And if it were not good by the Com∣mon Law, yet it was but form, and aided by the Statute of 27 Eliz: cap. 5. vide in Doctor Leifeilds Case, lib: 10. fol: 94. And Iustice Winch a∣greed with me, but Warburton to the contrary, and argued strongly, that it was substance and was very materiall, and he relied upon the Book in the 38 H: 6. 17. and he put the cases of 11 H: 6. 43. 8 H: 6. 22. & 2 H: 2. and Wimbish and Talbois case. Plowden, There is debate, and argued two against two, and no Iudgment given, because that it is not shewn Comment. Cosin, vide 2 H: 5. 7. a good Issue, there is no such Ancestor, a generall Demurrer confesse not the matter, as in Debt upon a Bill, he plead payment and the Plaintiff demur, that Demurrer doth not confesse the payment. Lord Hobart would not speak of the Common Law, but it seemed good to him by the Statute. The Title of the Act is, An Act for furthering of Justice, Definitive Iustice, and Interlocutery. The Statute takes not away form, but

the intrappings and snares of form: No place where the Obligation is made cannot be tried by them affirmatively. Hough and Bamfields case matter and no form, and so Dyer 319. But the point of Cousinage which comes by videlicet is form: And if the case of Wimbish and Tal∣bois had been at this day it should bee aided, and Iudgment for the Defendant.

* 1.37IT was argued by the Court that upon an Elegit the Sheriff ought to deliver the Moyety by meets and bounds, and if it be so that the Conuzor be Ioynt-tenant, or Tenant in Common, then it ought to be so specially alledged and contained in the return.

Pasch. 16 Jac. Drury versus Fitch.

* 1.38DRury an Attorney of this Court, brought an action upon the case against Fitch, one of the Serjeants of London, for saying, I arrest thee for Felony, and after not guilty pleaded the Plaintiff was Non-suited:* 1.39 And now it was moved that no costs should be given to the Defendant, because that the words will not beare action, and therfore Iudgment shall be given Quod nil capiat per billam: And they vouched one President in Grewstons case in Ban. Reg. vide, that now by the last Statute, costs shall be given to the Defendant in all cases where the Plaintiff should have costs if he recover; but in such case where the Plaintiff if he recover shall not have costs, the Defendant upon the Non-suit of the Plaintiff shall not have costs.

But it seemed to Lord Hobart, that in this case the costs are for vex∣ation, and this is more vexation if he had no cause of action, vide 29 H: 8. fol: 32. It is there resolved, that an action lies for the costs, notwith∣standing a Writ of Error brought: And the last day of this Term the Court was of opinion that the action lies for the words, for it is more then these, I charge thee with Felony, and if the Action lies not, yet the Defendant shall have costs, for it was such an Action in which the Plaintiff ought to have costs if he recover.

Vpon motion in Court by the direction of Iustice Warburton who had caused a Iury to be drawn, by reason of the slendernesse of the mat∣ter, and for avoiding the charge of a speciall Verdict; the Case was, A Copyholder was a Lunatick, and the Lord committed the custody of his Land to one which brought an Action of Trespasse;* 1.40 and whether it ought to be brought by him or by the Lunatick was the question. And the opinion of the Court was, that the Committee was but as Bay∣liff, and hath no Interest, but for the profit and benefit of the Luna∣tick, and is as his Servant; and it is contrary to the nature of his Authority to have an Action in his own name, for the interest and the Estate, and all power of Suits is remaining in the Lunatick: And it was ruled in this Court, that a Lunatick shall have a Quare impedit in his own name, vide Beverlies case, Coke lib: 4. the diversity between a Lunatick and an Ideot, and H: 8. Dyer fol: 25. And though when Guardian in Socage (as it was adjudged) makes a Lease for years,

his Lessee shall have an Ejectione firmae, yet there the Guardian hath the Interest, and is accountable therfore. But in this case the Com∣mittee hath no Interest, but is as a Servant appointed by the Lord to keep the possession for him, who is not able to keep it for himself. Lord Hobart and the Court also agreed, that the Lord of a Mannor hath not power to commit or dispose of the Copyhold of a Lunatick without spe∣ciall Custom, no more then a man shall be Tenant by the Curtesie, &c. of a Copyhold without Custom, nor the Lord cannot commit during the Minority of an Infant Copyholder without Custom.

Hil. 15 Jac. Rot. 906. Smith versus Stafford.* 1.41

Suff.

ANdrew Smith and Anne his Wife,* 1.42 against Richard Stafford Exe∣cutor of Jeremy Stafford in an Action upon the Case, the Plaintiff counts, that wheras there was Communication had of a Marriage be∣tween the said Anne (when she was sole) and the said Jeremy,* 1.43 the said Jeremy in consideration that the said Anne would take him to her hus∣band, promised that if after the Marriage the said Jeremy dyed, living the said Anne, he would leave the said Anne worth a hundred pounds: and aver that she did marry the said Jeremy which died, and did not leave her worth a hundred pounds: And upon Non assumpsit the Iury found for the Plaintiff; and in Arrest of Iudgment it was alledged, that this intermarriage had extinguisht the action, vide 11 H: 7. 4 21 H. 7. 30. Coke 8. 136. there in Sir John Needhams case many cases are put, vide Hoes case, that a Release do not discharge Bail before Iudgment, for it is contingent, vide one Iudgment, Hil: 6. Jac. in the Kings Bench, Rot: 132.

Thomas Belcher and Elizabeth his Wife,* 1.44 against Edmond Hudson an Action upon the case, in consideration that the said Elizabeth at his re∣quest would take one Thomas Mason his familiar Friend to her Hus∣band, he assumed and promised that if the said Elizabeth survived the said Mason, that he would pay yearly to her forty shillings for her main∣tenance, and shews that therupon she did take the said Mason to her Husband, and survived him, and then married with the Plaintiff; the Defendant pleads a Release from Mason of all Actions, Demands, &c. and it was adjudged no sufficient release: But Lord Hobart said, that if he had released all promises that would have discharged the Defendant, vide 4 Eliz: Release of all Actions, Suits, Quarrels, &c. doth not release a Covenant before it be broken, but otherwise of a release of all Cove∣nants, as it appears in Dyer 57. though the principall case was a re∣lease of all Covenants untill such a day, and Covenants were broken before and not discharged, for it being broken before, there was no Co∣venant as to that.

Vide Lampets case, Coke lib: 10. 51. the reason of the release in Hoes case was, because that it was contingent and uncertain, and 17 Eliz: a Lease to the Husband and Wife for life, the Remainder to the Sur∣vivor of them for one and twenty years, the Baron grant it over and survive, yet it is void, because it was contingent.

And the Lord Hobart said, that the promise was released by the in∣ter-marriage, and so shall be in the case of an Obligation, for Fortior est dispositio legis quam hominis; and he held that strongly to be Law, but Iustice Winch and Iustice Hutton held the contrary, and that the Law will not work a release contrary to the intent of the par∣ties, and that the marriage (which is the cause) do not destroy that which it self creates.

Trin. 6 Jac. Jurden versus Stone.

Glocest.

EIectment upon a Lease made by Alice Remington of a Copyhold in South Corny; Walter B. Copyholder in Fee married the said A∣lice: And there was a Custom in the Mannor that the Wife shall have the Copyhold as of Franck-banck during her Widowhood,* 1.45 Si tam diu casta viveret, and had used to challenge it, and the Lord granted it, as appears by divers admittances of women; and this Wife after the death of her Husband came into Court, and challenged her right of Franck-bank, and prayed to be admitted, and that the Steward re∣fused, and she made a Lease for one year to the Plaintiff; and if he might bring this action, by reason the woman was not admitted (for it was agreed that no Fine was due to the Lord) was the question.

And upon the Evidence it was resolved by the Court, that this E∣state ariseth out of the Estate of the Husband: And as Lord Hobart said, it budded forth of the first Estate; and it seemed that where Te∣nant for life is admitted, that shal be the admittance of him in remain∣der: Also if the Free-hold of the Copyhold be granted over, and the Husband dies, there there cannot be any admittance, and yet she may enter; and in this case if any admittance had been necessary, she had done all that she could do, and that amounts to an admittance in Law to an Estate created by the Custom, and by the act of God and Law. A Tenant alieu, and the Feoffee tender the services and gives notice, the Lord refuse, this is sufficient, and the Lord shall be compelled to avow upon him. Continuall claim amounts to an entry.

Pasch. 16 Jac. Rot. 444. Blands Case.

* 1.46GEorge Bland brought an Action upon the Case against A. B. the Defendant having some communication with one Eagle said, that he was a troublesome fellow, and he doubted not but to see him indict∣ed at the next Assises for Barretry, or Sheep-stealing as George Bland was,* 1.47 for George Bland was indicted the last Assises for stealing of Sheep; and it was not averred that he was not indicted, but that he was of good fame, It was moved in Arrest of Iudgment, that it is not actionable, and so was the opinion of the Court, for it is not a di∣rect

affirmative: vide the case of Steward against Bishop, before fol. 1. And if one saies, I suspect you for stealing my Horse. And Iudgment was given for the Defendant.

Trin. 16 Jac. Darcy versus Askwith.* 1.48

Ebor.

JOhn Lord Darcy of Ashton brought an action of Wast against Ro∣bert Askwith (now Knight) and John Marshall,* 1.49 and assigne the wast in Woods, viz. In cutting down and selling two Oakes, foure Ashes in a Close called Tisley Close, two Okes in Parsons croft; one Ash in Pinder croft, and sixty one Oakes in Preston Lands,* 1.50 and in di∣vers other Closes in Swillington and Preston: The Defendant plead a Lease of the Mannor of Swillington to him for years, and also of the Mines, and justifie the shrowding of the Trees to make Punchons, Poles, and Stakes, and other Vtensils, in and about certain Pits called Cole-mines, in one of the Closes, without which the Defendants could no•• dig and take Coles out of the said Pits; and aver imploy∣ment about of the said Cole-mines, & justifie the cutting of other trees for the making of Instruments, for the extracting of the water out of the said Pits, and that without which they could not dig any Coles, and they were necessary for the digging of Coles, and for supporting the Pits, and aver the Imployment; And therupon the Plaintiff demurred: And we all agreed that the Plea is not good; Harris ar∣gued for the Defendant for three reasons.

1. Because by the Lease this was included, vide 21 H: 6. 61. grant of Conuzance, &c. gives power to make a Steward, tempore E. 1. Fitz. 41. 2 E. 2. Bar 237. grant to fish in a Pond, yet he cannot make a Trench.

2. The Coles are the Inheritance, and the bettering of them is the bettering of the Inheritance.

3. For the profit of the Common-wealth, 14 H: 8. 18. 20 Eliz: Dyer 361. Altams case, Trench to make a Meadow the better is no wast, vide 22 H: 6. 6. digging of certain Loads of Gravell for the amending of the Land, vide 12 H: 4, 5. And for telling, this ought not to be an∣swered any other way then by justifying of the Imployment; and the Plaintiff may reply upon the sale if he will, and the case is long deba∣ted, 5 E: 4. 10. vide Dyer 37. Malenders case.

And the last day of this Term, the Lord Hobart declared, that we were all of opinion that the Plea is not good, for there though the Lease be of Mines, and by vertue therof the Lessee might open new Mines, as in Sanders case, Coke lib: 5. fol. 12. there it shall be intended of new Mines which in themselves is wast, if it had not been by speci∣all words; And the digging of a Mine is an impairing of the Inheri∣tance and a great benefit to the Lesses, and therfore if Lessee for years build a new house, if he cut Trees off the same Lands for the making therof, it is wast, 17 E: 2. Fit: wast 118. And no more then one may make a Brick Kilne and burn Brick, or a Lyme Kilne and burn Lyme with wood growing upon the ground, and sell the Brick or Lyme, no more may the Defendants in this case cut down wood for the making

and supporting of these Mines for Coles which they sell, vide 41 E: 3. 17. And so Iudgment was given for the Plaintiff.

Edmonds Case.

MEmorand. That at the Assises holden at Winchester in Lent, 15 Jac. one William Edmonds was indicted of Burglary, because that he Burglariter and feloniously did break the house of one Richard Heydon in the night at Ramsey,* 1.51 and the Iury gave a speciall Verdict. We find that Richard Heydon and Christian his Wife were both in Bed and at rest in an upper Chamber in the Mansion house of the said Richard Heydon; and that the said William Edmonds then was and yet is the Servant and Apprentice of the said Richard, and that he then lay in another Chamber of the said house, remote from the Bed-chamber of his said Master and Dame, and that there was a Door with a Latch at the Stairs foot of the said Bed-chamber of the said Heydon, but none at the Stair-head being the entrance into the said Bed-chamber of the said Heyedon: We find that the said William at the said time in the Indictment drew the Latch of the Stair-foot door, and opened the said door being then latched, and went up the Stairs, and entred into the Bed-chamber of his said Master, with an intent to murther the said Heydon, and that he did then and there with an Hatchet (with an intent to murther his said Master) strike and grie∣vously wound him, and gave him fifteen wounds on the head, and other parts of his body: And if upon the whole matter, &c.

And this speciall Verdict was shewn by the Lord chief Baron Tan∣field, unto all the Iudges of Serjeants Inne in Chancery Lane, viz. Iu∣stice, Warburton, Crook, Baron Bromely, Iustice Dodderidge, Houghton, Winch, and Hutton; And they all (besides Winch which doubted) agreed that it was Burglary, and afterwards in the same Term, at a meeting in Serjeants Inne in Fleetstreet it was shewn to Mountague, Hobart, and Denham, which concurred.

Mich, 16 Jac. Staffords Case.

FAlse Imprisonment was brought by Sir John Stafford, the Defen∣dant justifie,* 1.52 that Bristoll is an ancient City, and that time wherof memory, &c. there hath been a Court holden there before the Sheriffs &c. and justifie that there was a Plaint levied, and Iudgment, and that the now Plaintiff was taken in execution. The Plaintiff replyed Quod non fuit aliqua querela levata, according to the custom, and re∣quires this Quod inquiratur, &c. And it was tryed at Bristoll and found for the Plaintiff, and damages twenty six pounds. And it was moved in Arrest of Iudgment, that this being matter of Record, viz. the en∣try of the Plaint in a Court of Record, it shall be tryed by the Record, and not by the Country.

And it was adjudged that the tryall was good, because that it is

not meerly Record, but whether it was according to the Custom. And Non prosecutus est ullum breve is tryable by the Country; Quaere if the King grant by Patent to hold plea under forty shillings, if it be a Court of Record.

Sir Walter Rawleys Case.

MEmorand. that on Friday the 23. of October, upon conference between all the Iustices of England, whether a privy Seal was sufficient, it being directed to the Iustices of the Kings Bench, to command them to award execution against Sir Walter Rawley (which was attainted of Treason at Winchester Mich. 1 Jacobi,* 1.53 before Com∣missioners of Oyer and Terminer) or how they should proceed before execution be awarded: It was resolved by all, that he ought to be brought to Bar by Habeas Corpus to the Lieutenant of the Tower, and then demanded if he could say any thing why execution should not be a∣warded, for the proceedings against him being before Commissioners, they are delivered only into the Court of Kings bench, or they might have remained in a Bag or a Chest, and no Roll made therof, and so long time passing, it is not a Legall course that he should be comman∣ded by a privy Seal, or great Seal to be executed, without being de∣manded what he hath to say, for he might have a pardon, or he might say, that he is not the same person: As if one be Outlawed of Felony and taken, he shall not be presently hanged, but he shall be brought to Bar and so demanded &c. And upon this resolution a privy Seal came to the Iustices of the Kings Bench, commanding them to proceed a∣gainst him according to Law: And therupon a Habeas Corpus was a∣warded, and Octob: 28. he came to the Bar, being brought by the Liev∣tenant, and there he was demanded of whether he had any thing to say why, &c. and there he shewed, that the King had imployed him as Generall of a Voyage, and hath given him power De vita & membris upon others: And whether this did amount to a pardon or no, he knew not. The Attorney-generall said, that the King pardoned no Trea∣sons by any Implication, but it ought to be by speciall words: Then he said he had nothing else to say, but submit himself to the mercy of the King; And there execution was awarded, and a Roll made therof (and so it was done in Lepu's case, as the President was shewn) and he was committed to the Sheriffs of London and Middlesex, and by them he was brought to the Gatehouse, and the next day (which day the Lord Mayor of London came to Westminster to take his Oath) he was beheaded in the great Court at Westminster, and he died in a good and religious manner, and spake much without any fear of death, sub∣mitted himself to the Block, and by his death gained great reputation in this life, and by the grace and mercy of God remission of his sins, and eternall life afterwards, &c.

Bishop and others.

FAther Tenant in tail hath Issue two Sons, the Father with the eldest Son makes a Feoffment with Warranty, the eldest Son dies,* 1.54 and after the Father dies, the younger Son brought his Forme∣don; and this Feoffment with warranty of the eldest Son is pleaded in Bar, and upon Demurrer, Iudgment for the Demandant: For it is but a lineall Warranty, and then without Assets it is no Bar, for though the eldest Son dye in the life of the Father, yet the younger Son by possibility might have the Land as Heir to him.

Mich. 16 Jacobi.

AN action of Debt was brought upon the Statute of 5 Eliz. for per∣jury against one that was produc't as a Witnesse in an action of Trespasse, and deposed falsely: And upon Nil debet pleaded, the Plain∣tiff was non-suit,* 1.55 And whether the Defendant should have costs or no, was moved by Serjeant Harvy, and that stands upon the words of the Statute of 23 H. 8. cap. 16. the words are, In any Action, Suit, Bill, upon the Case, or upon any Statute for any Offence, or wrong perso∣nall immediatly supposed to be done to the Plaintiff.

The opinion of the Court was, that the Defendant should not have costs upon this non-suit, because that this action is founded upon a Statute made long after the making of that Statute. Also this is not an immediate wrong to the Plaintiff, but to the Secondary for it is an immediate wrong to the truth; and such Statutes which are in∣tended by this Act, shall be like to Trespasse done to the party him∣self, as Ravishment of Ward: Also it is not aided by the Statute of 4 Jacobi cap: 3. for that gives costs to the Defendant, where the Plain∣tiff shall have costs if he recover; And Mr. Brownlow the Prothonatory said, that it had been ruled so before, for the Plaintiff should not have costs if he recover, because the Act 5 Eliz. gives a Penalty, viz. a forfeiture of twenty pounds against the Witnesse, and forty pounds a∣gainst the Suborner, and so the Plaintiff if he had recovered, should not have had any costs, and therfore it is not aided by the Statute of 4 Jacobi.

Mich. 16 Jacobi. Conesbies Case.

THe Lady Conesby, being the Wife of Sir Ralph Conesby, was ci∣ted into the Ecclesiasticall Court by Mr. Watts,* 1.56 who had married Elizabeth the Grand-child of the Father of Sir Ralph, to which Grand-child by Will one Legacy of a hundred pounds was devised, and that was pass 3 Jac. by the Lady Conesby Executor of the first Testator,

and upon payment an Acquittance under the hand and Seal of the said Watts was, &c. in the presence of two Witnesses now dead: And this being denied, and they allowing of no proof by comparison of hands, nor by circumstances, but only proof of them which wrote it, or of them which saw them subscribe: And by their Law an Acquittance of the Husband for a Legacy to the Wife, without the Wife is not sufficient, also if Watts himself will deny it upon his Oath, there it shall stand a∣gainst all proofs: A Prohibition was granted upon the motion of Ser∣jeant John Moore, and after Serjeant Harvy had said all that he could say.

Trin. 16 Jac. Rot. 954. Kind versus Ammery.

KInd Plaintiff in a Replevin against Ammery:* 1.57 The Avowry was for a Rent-charge, and the Grant was of a rent of twelve pounds payable at two Feasts,* 1.58 and if it vs behind for the space of a month after any of the said Feasts, it being lawfully demanded, that he might distrain; and for Rent arrear at the Annunciation, and by the space of a month after, and not paid, he distrained: And the Plain∣tiff demurred upon this Avowry, and shewes for cause, that it is not shewn that the Avowant made any demand before the Distresse: And Serjeant Harris relied upon a Case which was An: 31 Eliz. as he said, and vouched the number Roll;* 1.59 that upon demurrer between Bosden and Downes, there the Avowry was not good for the same cause: And Maunds case, Coke lib. 7: fol. 28. implies that it ought to be demanded, but it is not issuable, if it be at the day or after: And he said it was debated 31 Eliz. whether it was form or substance, which shall not need to be shewn upon Demurrer; But the Court agreed that no actuall de∣mand was necessary to procede the Distresse in this case, but that the Distresse is a demand. But if the Grant has been penned in this form, if it be arrear at such a Feast, and for a month after demand, that then he may distrain, otherwise it is, for there the Distresse is limited to the month after the demand: And so it was adjudged in this Court, between Coppleston and Langford, Trin. 3. Car. Rot. 2865.* 1.60

Replevin between Beriman and Bower, Avowry for Rent granted out of ten acres of Land in Crediton, payable at such a Feast upon the Town stone, upon the Key in Barnstable, if it be lawfully demanded, with clause of Distresse, and the Distresse was before demand; and upon demurrer it was resolved a good Distresse without demand, vide Dyer 348.

Booton against the Bishop of Rochester

A Quare impedit was brought by Booton against the Bishop of Ro∣chester, who pleads that he claims nothing but as Ordinary, and yet pleads further that the Clerk which the Plaintiff present, had be∣fore contracted with the Plaintiff Simoniacally,* 1.61 and therfore because he was Simoniacus he refused him, and that the Church was then void, and so remained void, wherupon the Plaintiff had a Writ to the Arch-bishop of Canterbury, who returned that before the coming of this Writ, viz. 4 July, the Church was full of one Mr. Doctor Grant ex collatione of the said Bishop of Rochester which had collated by Laps, and this return was adjudged insufficient: First, it is clear, that though the six months passe, yet if the Patron present, the Bishop ought to admit, although it be after the title devolved unto the Metro∣politan: And it seems also reason that he ought to admit, though that the Title by Laps be accrued to the King, for he claims it as supream Ordinary, vide Dyer 277. quaere. But in this case the Bishop which is the Defendant is bound by the Iudgement, and the Writ is, notwith∣standing the claim of the Bishop, that he admit the Clerk; and the Bi∣shop is but Servant, and ought to execute the processe of the Court. It was urged by Serjeant Henden, one Canon, Linwood fol. That if the Church be vacant when the Writ comes to the Bishop, that he is bound to execute the Writ, but if it be full, then he certifies the Iu∣stices: And the Arch-bishop is sworn to the Canons, and he vouched 22 H: 6. 45. Coke lib: 6. 49. and 52 Dyer 260. F.N.B. 47. Dyer 364. 14 H: 7. 22. 34. H: 6. 41. 9 E: 3. Quare non admisit, 18 E: 4. 7.

Trin. 16 Jac. Rot. 1999. Eire versus Bannester.

JOhn Eire brought an Ejectione firmae upon a Lease made by Sir Ed∣ward Kinaston against Andrew Bannester and Thomas Wenlock for Land in Norwood,* 1.62 and after Not guilty, the Plaintiff made surmiss of Kindred to the Sheriff Sir Thomas Owen to the Plaintiff, the De∣fendant pleads, that the Sheriff Non est de consanguinitate of the Plaintiff, as he by his challenge supposed: And because the Defen∣dant denied the said Challenge, John Eire calumnia illa non obstant, prec: est quod ven. fac. &c. And at the Nisi prius the Defendants chal∣lenge the Array for consanguinity between the Sheriff and the Lessor, viz. Sir Edward Kinaston, and make this Averment, that the Sheriff had Issue by Susan, which was the Daughter of Judith, the Wife of Sir Edward Kinaston; and conclude it is a principall Challenge, and therupon the Plaintiff demurred: And it was returned upon the Po∣stea, and it seems that the Sheriff being admitted and allowed to be indifferent by the Defendants in the same Plea, they which allow cannot have a Challenge to the Sheriff, for the Defendants might by confession of the surmise of the Plaintiff to be true, have had a Writ

directed to the Coroners, and although the entry is Calumnia illa non obstant. that is the form of the Award, and if he should be allowed o∣therwise afterwards to challenge the Array, then it would be in∣finite.

As a man ought to alledge but one principall Challenge, though he hath many, so it shall be peremptory to the Defendant, and when he allows the Sheriff indifferent, that shall be taken to be for all causes precedent, unlesse it be of latter time: And so is the opinion of 20 E: 4. 2. And if there be many Defendants, if one challenge the Array, that shall be peremptory for the others, as it seems; for the others ought when they challenge the Tales to shew cause presently of the Challenge, for if it be quashed that shall also be against them, vide Dyer 201. in Attaint vide 36 H. 6. 21. that where one challenge the Array which is affirmed, the other Defendants after may challenge the Array of the Tales.

The second point is, if it be a principall challenge or no, by reason that the Lessor is not party to the Action, vide 10 E 4. 12. 15 E. 4. 18. and 21 E. 4. 61. there it seems that where the Defendant justifies as Servant to I.S. and that the Land is his Free-hold, it is a principall challenge that a Iuror is within the Distresse of John S. for the Title is to be tryed: And now it was found by common experience that the Less••e is but Servant; common recoveries at this day are but as o∣ther common Conveyances.

But it seems that the Law is contrary, and it is not averred that this is a Lease for trying the Title; and (as Iudges) we take no no∣tice therof, but vide 3 H: 7. 2. contrary to the 10 and 15 E: 4. where the Challenge is to the Array, because that the Sheriff was of Kindred to him whose Free-hold was in Issue: and vide 9 H: 7. 22. Cognizance as Bayliff to the Abbot of Ramsey, Challenge to the Array, because the Sheriff was within the Distresse of the Abbot, and that was not a principall Challenge by Fineux, Brian, and Vavasor, because that he was not party to the Writ, vide this very Case, Dyer 300.

And upon argument at the Bar the Court was of opinion, that it was no principall Challenge, but ought to have concluded with the favour. All agreed that a Surmise which is for prevention of delay, ought to contain matter which is a principall Challenge, for no triall shal be of such suggestion, but by the deniall of the Defendant or Confes∣sion: And by the opinion of Lord Hobart and Iustice Winch cest. dedi∣re n'est peremptory to the Defendant, for his time of challenge is not till the Iury come to be sworn; but I hold the contrary, because that he might have confessed the Surmise, and so have had time: And I rely upon 20 E: 4. 2. there in the end of the Case it is said, that the De∣fendant by his deniall, where he saies that the Sheriff is not favoura∣ble, but indifferent, there he shall never have a challenge for favour unlesse he shews cause of later time.

As to the second Point, it is no principall Challenge, because it might be, that the Lessor had granted over the Reversion, or that the Defendant might be found Not guilty: And a principall Challenge ought to contain such matter, which (being so) the Law adjudge fa∣vourable; and in this very case two Presidents scil. Iudgments more strong then this case,* 1.63 Hil: 44 Eliz: Rot: 1208. Bedforne against Dandy in an Ejectione firmae upon a Lease made by Sir John Digby, after Not guilty pleaded, a Surmise made of consanguinity between the

Lessor and the Sheriff, &c. confessed, and therupon a Venire facias to the Coroners, and after the Challenge was adjudged insufficient, and a Venire facias likewise to the Sheriff was ruled,* 1.64 Trin: 14 Jac. Rot. 2284. Craddock against Wenlock, in an Ejectione firmae upon a Lease made by Sir Robert Cotton, such Challenge and Award to the Coro∣ners, and tryed and adjudged a mis-tryall; and a Venire facias a∣warded to the Sheriff, and the mis-tryall is not aided by the Statute, vide Coke lib: 5. Bainhams case: And so by the Iudgment of the Court this Challenge was insufficient; and Warburton being then sick was of the same opinion, as he told me, vide 8 Eliz: Dyer 281. Austen and Baker in Attaint, vide 33 H. 6. 21.

3. Defendants, one challenge the Array of the Principall, and that being affirmed the other Defendants challenge the Tales.

Mich. 16 Jac. Easington versus Boucher.* 1.65

* 1.66EAsington brought an action of Debt upon a joynt Contract against: Sir John Boucher, Turner, Bolder, and one other; Turner appear and tender his Law, Sir John Boucher and another plead Nil debent, and the other was Outlawed; and it was said, that he ought to have joyned, but it was resolved by the Court that they may sever in Bars, but ought to joyn in Delatories; For otherwise if one which never bargained be joyned in the action, he must put his matter upon their pleadings. And in Debt upon a joynt Obligation, one may plead a Release, the other Non est factum, vide 48 E: 3. 21. and vide Presidents in this case according to this resolution,* 1.67 Trin: 26 Eliz: Rot: 821. Sabud against Robinson, Matson, and Loughton, and Count sur emisset, Waston and Loughton pleaded, and Non sum informatus by Robinson, Sed judicium inde cesset quousque, the Issue be tryed, and Venire fa∣cias awarded and found for the Plaintiff,* 1.68 Hil: 41 Eliz: Rot: 455.

John Periam and Margaret his wife, Executors of John Hart vrought an action of Debt upon Emisset against Thomasin Phelpes Widdow, Henry Pittard, and John Phelpes: John Phelpes was Outlawed, and Iudgment against Henry P. by Non sum informat. and Thom: P. plead Nil debet,* 1.69 Venire facias, and Iudgment respited quous{que} &c. and after tryall the Plaintiff had Iudgment.

Hil: 13 Jac: Rot: 841. Fleet brought an action of Debt against Ja: Har∣rison, and Isaac. Brooke upon Emissent: And James H. waged his Law, & Iudgment against Isaac. Brooke by nihil dicit. Et quia Conveniens est quod judicium de loquela praedicta unicum sit versus praedictos Isaac. & Jacobum si contingat ipsum Jacob. de perficiend. legem suam praedictam desicere, Ideo parcat in judicium inde versus praefatum Isaac. redden∣dum quosque praedictus Jacobus legem praedictam perficeret, sive inde desiceret & postea praedictus Jacobus perfecit legem suam. Ideo conside∣ratum est per Curiam quod praedictus querens nihil capiat per breve suum praedictum sed sit in miserecordia pro falso clamore suo inde, & quod praedictus Jacobus eat inde sine die. And according to this Pre∣sident it was agreed per Curiam that so it ought to be.

Hil. 12 Jac. Rot. 3007. Reyner versus Waterhouse.

Ebor.* 1.70

JOhn Reyner brought an action upon the case against L: Walterhouse,* 1.71 and declares, that wheras he is, and by the space of twenty years past have been an Inhabitant within the Town of Long Leverseidge in the Parish of Burstall: And wheras the Inhabitants of Long Lever∣seidge aforesaid, De tempore cujus contrarii memoria hominum; &c. used to have a common way as well for Foot-men as for Horse-men, to go and ride from the said Town of L. to the Parish Church of Bur∣stall aforesaid, on Lords daies, and Festivall daies, and other conve∣nient times to hear Divine Service within the said Church; and to carry bodies, &c. dying in the said Town, to the said Church to be in∣terred, Modo & forma sequent. viz &c. and shews the way through di∣vers Closes in Long Leverseidge, Little Leverseidge, and Gomersall, and over the Church-yard of the Church of Burstall, and from thence unto the Church aforesaid, and backward, &c. and shew one distur∣bance made by the Defendant by making of a Ditch in one of the Clo∣ses in Gomersall; the Defendant pleaded Non culpab: and found for the Plaintiff; and in Arrest of Iudgment it was alledged that the Venire facias fuit de Gomersall tant. And the Venire facias was quash∣ed per Curiam, and a new one awarded de L.L.G. & Burstall.

Hil. 16 Jac. Bigg versus Malin.

BIgg brought an action upon the Case against Malin,* 1.72 as Admini∣strator, and counts that whereas the Intestate was indebted to him in ten pounds, and the Defendant also was indebted to him in forty shillings, they accounted, and upon account the Debt being twelve pounds,* 1.73 the Defendant being Administrator did assume and promise to pay it, Et licet saepius requisitus non solvit: And upon Non assumpsit pleaded, the Verdict was found for the Plaintiff: And by Finch, it was moved in Arrest of Iudgment, that the Plaintiff had not shewn in this Count sufficient consideration to charge the De∣fendant, because that it doth not appear that the Defendant hath As∣sets. But the Court disallowed that, for if that were necessary it ought to be presumed to be found in the Verdict; As in the case, in conside∣ration that the Plaintiff had sold and delivered to him twenty quar∣ters of good and merchantable Barly, the Defendant promise to pay

him twenty pound: Non Assumpsit, the Plaintiff ought to prove the promise and the delivery. And as in Debt against Executors upon a simple Contract, it shall not need to be alledged that they had Assets to pay Debts by specialties, yet good, and that ought to be proved.

But it seemed to be agreed, that if an Executor or Administrator which hath not Assets, makes promise of payment, if it be not mixed with any profit to himself, viz. forbearance, &c: there it shall not charge him.

But by Warburton, if an Executor hath fifty pounds Assets, and he promise to pay to a Creditor a hundred pounds, that shall bind him for all, for when he hath Assets for part, the Plaintiff hath Iudgment for all, and execution only for so much as is found. And in this case the Plaintiff had Iudgment.

Brook versus Groves.

BRook brought a Quod permittat against Groves, and after Impar∣lance the Defendant demanded a view, and ruled by the Court that he might, and vide 34 H: 6. 9, 10. accordant, vide 6 E. 4. 1. and the Plea,* 1.74 viz. the View was De tenementis predictis, which was as well of the Lands to which the Nusance, as of the Lands which was the Nusance:* 1.75 And the View in this action is but for fifteen daies.

Egerton versus Egerton.

THe Lady Egerton Wife of Sir John Egerton, brought a Writ of Dower against Edward Egerton, the Tenant at the day of Essoin did not cast any Essoin: And the Demandant entred her exception, & at that time the Writ was not returned, and upon motion to the Court for the tenant to be essoined notwithstanding the exception,* 1.76 it was resolved that notwithstanding the writ was not returned, yet the Tenant might have his Essoin, vide 2 E. 4. 11. 21 E. 4. 7, 8. 30 H. 6. 1. that an Essoine may be before the Writ be returned, and vide 2 H: 7. 4. 10 E: 4. 4. the Tenant may be Essoined at any day,* 1.77 as wel at the fourth daie as the day of Essoin, unlesse the Essoin be challenged, viz. an exception entred, and 2 H: 7. 4. takes a difference between a reall Action, or Originall Suit, and a Writ of Execution; for upon the first, the Essoin lies at any time before the fourth day, but in the Writ of Execution the De∣fendant ought to be essoined at the day of the Essoin.

And Warburton said, that if the Essoin be not cast before the return of the Writ, it ought not to be at all, for all Writs come in by Post diem.

Cardinals Case.

CArdinall an Attorney of this Court of Common Bench,* 1.78 brought an action upon the case against I. B. for saying of him, That he had forged the last Will of I. S. and after Issue upon not guilty, it was found for the Plaintiff: And moved in Arrest of Iudgment,* 1.79 that it is not alledged that the Will is supposed to be forged. But by the Court, that was necessarily implyed, and the Plaintiff had Iudgment.

Pasch. 17 Jac. Allaboyter versus Clifford.

Suff.

JOhn Allaboyter brought an action of Debt upon an Obligation a∣gainst Daniel Clifford, which was with a Condition,* 1.80 that if the De∣fendant perform the Award of two Arbitrators of all Actions, De∣manos &c, moved between the Plaintiff and Defendant from the be∣ginning of the world untill the day of the date of the Obligation,* 1.81 so that the arbitrement be made before the tenth day of December, the De∣fendant plead no such award before the day, the Plaintiff reply and shew, that the ninth day of December they awarded of and upon the premisses, and arbitrated that the Defendant should pay to the Plaintiff fourteen pounds at two severall daies, and that upon the last day the Plaintiff should make a generall release to the Defendant, and the De∣fendant likewise to the Plaintiff, and alledge a breach for the non pay∣ment of the first seven pounds, and aver that the fourteen pounds was awarded to the Plaintiff, in full satisfaction of all suits, quarrells, &c. depending between the Plaintiff and the Defendant, at any time be∣fore the Date of the Obligation, upon which Plea the Defendant de∣murred, and objected by Attho, that the Release which is appointed to be made upon the last day, is not appointed but after the payment of the money, and also is then to be made of more then is submitted to them. But by the Court it is agreed to be a good Award, for it shall not be intended that there were more matters arising between them after the date of the Obligation: Also if he had made a Release un∣till the date of the Obligation, that were a good performance. And this Case had been adjudged before between Nichols and Grandie.* 1.82

George Andrews Case.

VPon a Habeas Corpus, one George Andrews was brought to the Bar, and upon a long return by the Mayor, Aldermen, and She∣riffs of London,* 1.83 of their custom concerning the Orphans of Free-men, and for the security of their Portions to be paid to them at the age of 21. years, or at the time of their marriage, or at such time as is appointed by the Will of their Father, or Mother, or other Free-men giving to them any Legacy, they use to take sufficient security of them which ought to pay them, and if they refuse, then to commit them to the Counter untill they give security; and that their customs were confirmed by Act of Parliament, An. 7. R. 2. William Andrews a Free-man having one Son and one Daughter by Emery his Wife died, this George Andrews a Free-man being Suitor to the Wife before marri∣age agreed, that if the Wife would marry him, she should dispose of two hundred pounds, &c. and he was bound in a Statute to permit and suffer her to make her Will, and dispose therof; and after she died, and by her Will gave a hundred pounds to her Son, and a hundred pounds to her Daughter, and the said G.A. agreed to her Will, and yet refused to give security to the Chamberlain of London to pay it at the day appointed by the Will, pretending that he was bound by Sta∣tute to the Friends of the Orphans to perform it: And by the Court he was remanded, for it is a laudable Custom, and the voluntary Ob∣ligation upon marriage is not any discharge as to the security by the Custom, and we will not disparage the Government of the Citty.

Trin. 16 Jac. Wolfe versus Heydon.

London.

* 1.84THomas Wolfe Administrator of the Goods and Chattels of John Aldrich, durante minore aetate of Edward Aldrich, William Al∣drich, and other Children of the said John not administred by John Tal∣bot, Executor of John A, or by Robert Armiger late Administrator of the said Goods and Chattels during the minority of the said Children not administred,* 1.85 brought an action of Debt against Simon Heydon, and count upon an Obligation of fifty pounds, wherof ten pounds was satisfied to John Aldrich in his life, and counts that John Talbot was made his Executor and died; and that the money was neither paid un∣to the said John Aldrich the Testator in his life, nor to John Talbot the Executor in his life, nor to the said Robert Armiger late Admini∣strator of the Goods and Chattels of the said John Aldrich, during the minority of the Children; and he produce Letters of Administration, and aver that the Children were within the age of seventeen years. The Defendant plead in Bar, that the said Aldrich before this Writ purchased, viz. such a day at S. in the Parish, &c. made his Will and constituted John Talbot his Executor, Qui suscepit onus inde, and ad∣ministred divers Goods as Executor, and after, viz. such a day, the said John Talbot made Benjamin Roblet his Executor, and died, and

Roblet suscepit onus testament, and did administer, and demand Iudg∣ment si actio, &c.

The Plaintiff reply and confesse that John Aldrich made John Tal∣bot his Executor, and that he administred and made Roblet his Exe∣cutor: But he saies, that the said John Talbot did not prove the Will of the said John Aldrich according to the Ecclesiasticall Law; and that the said Benjamin before that he took the charge of the Testament of John Talbot renounced before the Ordinary to be Executor of the said John Aldrich, or to administer any of the Goods which were the Goods of the said Iohn Aldrich, or to have any thing to do therwith: And ther∣upon the Defendant demurs, and Iudgment was given for the Plain∣tiff.

And in this case the Court well agrees with the replication, for he was Executor before probate, to pay Debts and to be sued, but not to have an action, though that originally the probate was temporall: and it is no plea in our Law, scil. that he did not prove the Will, but that he was not Executor: And of late times our Law for the encreasing of the credit, and for the inforcing of the Probate, do disallow actions brought before the Probate, vide the Case upon which it was princi∣pally insisted, 22, 23 Eliz. Dyer 272. a. Isted against Stanley; If an Executor dies before Probate, and if the residue of the Goods be devi∣sed to him, then Administration shall he committed to his Executor, or otherwise to the next of the blood of the first Testator, for now he dies intestate: And although it be one dying intestate of the first Te∣stator in Law, yet if being the reall and speciall matter it agrees well with his Writ, and is matter in Law, scil. to some purposes he dies intestate, and to others not, for he had power to release, to pay Debts, and to take a release, vide Dyer 367. a, It seems that his Exe∣cutor shall have his Legacy. But the Count is cu••bred with the Ad∣ministration committed to Armiger, and it doth not appear how it was dischrrged, for it is only that the money was not paid to him late Administrator, and it is good, and the action is brought according to the Letters of Administration to him, which were of the Goods not administred by John Talbot, nor by Armiger which was Admini∣strator.

Coppledick versus Tansey.

Linc.

FRancis Coppledick Plaintiff in a Quare impedit against Samuel Tansey Clerk, Sir Philip Tirivint Baronet,* 1.86 and Richard Bishop of Lincoln, Quod permittant ipsum presentare ad Ecclesiam de Ulceby; and count that one Francis Coppledick was seised of the Advowson in Fee, and that it was holden in Socage;* 1.87 And that the said Francis so being seised devised it in tail, and intitle himself as Heir in tail.

Tansey plead that he is Parson imparsonee of the presentment of the said Sir Philip, and demand Oyer of the Writ, and plead that at the day of the Writ purchased there was no such Richard Bishop of Lin∣coln in rerum natura, and demands Iudgment of the Writ: Sir Philip plead that there is no such Church called Ulceby in the County of Lincoln, and demand Iudgment of the Writ.

The Plaintiff ••emur upon the plea of the Incumbent and as to the

plea of Sir Philip, he reply, that there is such a Church called Ulceby in the County of Lincoln; and this plea being tryed at Lincoln, before Baron Bromley, it was found for the Defendant: for there was an u∣nion of the Church of Fordington to Ulceby, and it was called Ulceby cum Fordington: And it was said that Institutions and presentments were to Ulceby; and Ulceby was the greater, and Fordington was the lesser Church, and united, and therin had lost its name. It was a∣greed, that it being known by the one or by the other name, had been suf∣ficient to have found for the Plaintiff.

Serjeant Harris moved in Arrest of Iudgment, that it being tryed Per Venire facias de vicineto de Ulceby, it was mis-tryed, for when Nul tiel vill. is pleaded, it shall be tryed per Corpus Commitatus, 8 H. 6. 38 H. 8. & 24 E. 4. 4: Fitz. visne 27. And he vouched 45 E. 3. 6. where such an Issue was tryed, but it did not appear how the Venire was a∣warded. And at the first time of this motion it appeared, prima facie, to be a mis-tryall.

Bawtry at another day moved it, and said, that the Writ is Quod permittant presentare, to the Church of Ulceby, and the Count accor∣ding therwith, it is to be intended a Town or Parish: And he re∣sembled it to the case of an Appeal against one by the name of I. S. of Dale, Carpenter, and he traversed that he was not dwelling at Dale, and it was a good tryall from Dale: And of, in, and at, are all one; but said, that in the Count it is said, that Edward Coppledick died at Ulceby: And all the Court agreed that it is a good tryall, and that it is admitted that there is such a Town, and the Writ implies it: And Iudgment for the Defendant.

Smith versus Linsey.

* 1.88A Scire facias against Michael Linsey late Sheriff of Kent, by Smith, reciting, that wheras he had recovered a hundred pounds against Sir Richard Potham, and had sued a Scire facias, the Defendant being Sheriff, returned that he levyed sixty and three pounds which he had ready at the day,* 1.89 and yet he did not bring the moneys into Court; and after it was removed de son Office, and to know why he should not have Execution against him of the said summ, with which he had charged himself by his return; and the Defendant demurred, and upon read∣ing of the Record, Iudgment for the Plaintiff, according to the case, 9 E 4 50. vide F.N.B. 165. 34 H. 6. 36. a. and 5 E. 3. 53. Fitz. Execution 101. And between Richards and Speak, it was adjudged in this Court, that Debt lies against the Sheriff, that hath charged himself by his re∣turn, that he hath levied the money.

* 1.90Cony versus Cony.

Linc.

PAragrin Cony awows (in a Replevin brought by Sir Thomas Co∣ny his Brother) for twenty marks per annum, granted to him by the will of his Father for life, to commence after the end of eight years contained in the Will, and in the Will no mention is made of any eight years, and that was averred, and by the opinion of the Court it ought to commence presently.

Trin. 17 Jacobi. Smith versus Sir John Boucher. Mich. 16 Jac. Rot. 3339.

London 1.

EDward Smith brought a Writ of Annuity against Sir John Bouch∣er,* 1.91 and Thomas Jones de placito quod red. ei 120 l. and Count that the Defendants by their Deed (shewn in Court) reciting that wheras the King (by his Letters Patents) had granted to them,* 1.92 and to one William Turner certain Priviledges and Licenses concerning the making of Allome within this Realm, and within the Realm of Ireland for twenty seven years, for the Councell given before by him to the Defendant (he being Counsellor at Law) concerning the drawing of the Letters Patents: And for his Councell to be given af∣terwards, granted to him the said annuall summ of 40 l. for 26 years next, payable at Midsomer and Christmas. The Defendants plead that the King granted the sole, making of Allome to them as in the Letters Patents, and confesse the grant of the Annuity to the Plaintiff by Deed indented, one part wherof sealed with the Seal of the Plaintiff they show, &c. But further said, that the said Annuity was granted Percipend. extra clara lucra & proficua, which accrue to them by the making of Allome: And they aver, that no clear gaines or profits have accrued to them, or any of them by the making of Allome, since the making of the said Indenture, wherupon the Plaintiff demur.

1. And Iudgment was given for the Plaintiff, for it is one good Grant of an Annuity to charge their persons: And so of a Grant of an Annuity to be paid out of such Coffers or Bags, vide 9 H. 6. Margery Parkers case, vide 22 H. 6. 12.

2. Also the limitation is to perceive of the clear gaines, and plead it by the Counter-part of the Indenture, and that ought not to be, but they should have demanded Oyer of the Deed, and then either demur or plead that the same Deed was granted over, &c.

3. It is not averred that no other person received or made any clear gain, but only that the Defendant made no clear gain.

Burglary.

MEmorand. At the Assises holden at Winchester in the last Cir∣cuite, before the Lord chief Baron Tanfield (it being the third Circuite which I went with him:) It was a question, whether one which had a Shop in the dwelling house of another, and he which had the Shop work'd therin in the day, but never lodged there, and yet he had a house out of the Shop to the Street, if this Shop be broken in the night, and divers Goods stoln out therof: if, it be Burglary.* 1.93 And the Lord chief Baron and I resolved that it was no Burglary, because that by the severance therof by Lease to him which had it as a Shop, and his not inhabiting therin, it was not any Mansion house or dwel∣ling house, & ergo no Burglary, but ordinary Felony.

Mich. 15 Jac. Adavis versus Flemming.

* 1.94AN action of the Case was brought for these words, Thou hast for∣sworn thy self before the Councell in the Marches (innuendo in the Marches of Wales) in a Suit which I have there, and I will sue thee for Perjury.* 1.95 And after issue of Not guilty pleaded, and Verdict for the Plaintiff; It was moved in Arrest of Iudgment by Chibborn, that the Common Law takes no notice of any such Councels, and they are to meddle according to instructions, and if it be not warran∣ted therby, then no Oath wherupon any remedy: And therfore it was adjudged that if one say, another is forsworn or perjured in Canter∣bury Court, no action lies, for we cannot take any notice of any Court in Canterbury, which hath power to administer an Oath. But Serjeant Harris said, that this Councell of the Marches, is established by 27 H: 8 cap: 32. and have power to examine Witnesses and to admi∣nister an Oath, and is also mentioned in the Statute 5 Eliz. that Per∣jury committed before the Councellors of the Marches shall be punish∣ed by this Statute. And the Court was of opinion that the action well lies, for the Councell of Marches (without innuendo) is sufficient, for there is no other Councell of Marches. And as the Court take no∣tice of the Court of requests (for if one saies another is perjured there it is actionable) so of this Court which is established by Statute, and concern the King, and therof the Iudges ought to take notice; Iudg∣ment for the Plaintiff. And by Lord Hobart, if one saies, another is forsworn in the Common place, an action lies:

Mich. 17 Jac. Bayshaw versus Walker.

* 1.96AN action of the case was brought for saying, Thou art a filtching Fellow, and didst filtch four pounds from me; And after Verdict for the Plaintiff it was moved in Arrest of Iudgment, that the words were not actionable: And so the Court resolved, for the word siltching is dubious, and may be by Cousenage, by shifting, by deceit, and is not Felony but by Implication; and it is not good to enlarge actions for words, Plaintiff Nil capiat per breve.

Green versus Harrington.

* 1.97PEter Green brought an action upon the case against Thomas Har∣rington, and counts, that wheras the Defendant such a day was indebted to him in ten pounds for the rent of one House and land which he had demised to him for one year then past, the Defendant promised to pay it upon request; and upon issue Non Assumpsit, it was found for

the Plaintiff, and moved in Arrest of Iudgment by Chibborn, that no action lies upon this promise, because it is Debt for the rent for Land; and the Assumpsit is of a lesse nature, as if one he indebted upon an Obligation, and that being forfeited, he promised to pay it, no action lies, for the Debt is due upon the Obligation:* 1.98 And the opinion of the Court accorded. This was ruled in Albanies case of Lincoln•• Inne in Banco Regis.

Trin. 17 Jac. Rot. 1849. Castilion versus Smith.

AN action of Covenant was brought by Sir Edward Castilion a∣gainst Thomas Smith as Executor,* 1.99 & a breach assigned by act done by the Executors; and after Verdict it was moved if Iudgment should be De bonis propriis, by reason the breach was made by the Executors: And it was resolved that it should be de bonis testatoris. And where the Writ is in the Detinet only, there the Iudgment shall be de bonis testatoris, vide the like Iudgment, Hil. 33 Eliz. Rot: 1143. between Johnson and Barker.

Pies Case.

PIe exhibited an Information upon the Statute of the 35 of Eliz. for converting of a house in London into many dwelling houses; and upon Not guilty pleaded, the Defendant is found guilty. But be cause the said Statute is discontinued by the 43 Eliz;* 1.100 and there is now no such Statute, the Court (upon motion in Arrest of Iudgment) a∣ward, that the Defendant eat inde sine die: And whether the Defen∣dant in this case shall have costs upon the Statute of 18 Eliz. cap. 5. was the question.

The words of the Statute are, if any Informer willingly delay his Suit, or discontinue, or be non-suited, or shall have the matter, or the try∣all passe against him by Verdict or Iudgment in Law, he shal pay costs.

1. Object. It was objected, that this Statute doth not extend but only to penall Statutes which then were in Esse.

Answ. To which it was answered by the Court, that this Statute was a perpetuall direction to all Informers.

2. Object. It was objected, that if there be no Statute, then there is no Informer.

3. Object. In this case Verdict is sound for the Informer, and he may be presumed to be ignorant: And there is no reason that he shall pay costs for default of his Councell.

4. Object. There is no Iudgment against him, but that the Defen∣dant eat inde sine die; and that is no other then an exception in stay of Iudgment:* 1.101 And a President was cited by Henden 25 Eliz. Banco Re∣gis; there upon an Information against Keldridge, and another upon the Statute of 35 H. 8. for not inclosing Woods, but suffering them to lye open after cutting by the space of one month: he alledged the cut∣ting

the tenth of April, and the lying open untill the second of May, which was not a month: And upon Not guilty pleaded, it was found for the Plaintiff; and upon motion in Arrest of Iudgment, it was a∣warded that the Defendant eat inde sine die, and no costs.

And the Lord Hobart said, that this Statute was made for the ease of the Subject, and for avoiding and preventing of vexations, and ther∣fore did enumerate all the cases in which the Informer could not pre∣vail, and had many words that the Statute of 23 of H. 8. or any other Statute doth not give expresly costs upon demurrer; and this is not within 23 H. 8. if upon discontinuance: And now the matter passe a∣gainst the informer, be it by Verdict or Iudgment, all is one, for the makers of this Statute intended to curb all vexatious Informers: And if it shall be suffered that Informers may inform upon Statutes not in force, and pay no costs, that would open a Window to the great vexation of the Subjects. And for Presidents not inflicted upon, they are of little esteem. And I concurred, and though Verdict be found for the Informer, yet there being no Statute there can be no Offence, and it is in Law as not guilty; And this case is within the meaning and Letter of the Statute, for the Statute intend costs where the cause passe against the Informer, be it by default of matter or form.

Winch doubted of this speciall case, because the matter is found for the Informer; but he agreeh if it were upon Iudgment; upon demur∣rer or speciall Verdict, costs should be given.

And Iustice Warburton was of opinion, that there should be no costs in this case, for he is not capable to sue where the Statute is disconti∣nued: And so if the Venue be misawarded, and he said, that he had conference with the Lord chief Baron, who also held that there should be no costs in this case: And so the matter rests.

Blackburnes Case.

Norff.

* 1.102AN action of Debt was brought by I. S. against Blackburne upon a Lease for a year, and so from year to year; And upon Nil debet pleaded, the Iury gave a speciall Verdict to this effect.

* 1.103Wells seised of Land in Fee, devised them to his Daughter and her Heirs, when she come to the age of eighteen years, and that his Wife should take the profits of the Land to her use, without any account to be made untill the Daughter come to the age of eighteen years: And made his Wife his Executor and died; And it was provided that the Wife should pay the old Rent, and find the Daughter at School untill she could read and write English, the Feme enters and proves the Will, takes Husband and dies, the Husband assign this term to the Lessor who brought this Action. And it was found that all the Conditions were performed, and that the Daughter was within the said age of eighteen viz. thirteen years.

And the sole question was, whether it be a term for years in the Wife, and whether (when she takes Husband) he shall have it after the death of his Wife; and it was ruled clearly that it is, and it being by Will it is a good Lease.

Another question was, if this trust of Education be Quasi a Limita∣tion

personall, and with intent that the Lease shall not be to the Wife a∣ny longer then she may educate her Daughter: And it was agreed that it was not, for any one may educate her, and find her at School, and there it is without any default in the Wife, for it is the act of God; and therfore Judgment for the Plaintiff.

Trin. 17 Jac. Whittingtons Case.

IVdgment in Debt against Ferdinand Earl of Derby,* 1.104 at the Suit of I. Whittington, and his Wife (she being Administrator to her Hus∣band who had the Iudgment) who brought a Sci. fac. upon the Iudgment against 30. Ter-tenants, they appear and all besides 3. plead, that at the time of the Iudgment Ferdinand the Earl was seised in tail, &c. And the Plaintiff had Iudgment against the three with a cesset executio; and afterwards Whittington the Husband died, and this is surmised and entred vpon Record, viz. the death of the Baron after the Darrein continuance; and whether the Writ shall abate or no, was the questi∣on: And per totam Curiam the Writ shall abate, for the Wife there cannot recover as a Feme sole; and though this Writ be judiciall, yet it is in nature of an Originall, for she might have had an action of debt upon the Iudgment, and ought to have that action solely after the year, untill the Statute of Westminster 2. which give Scire facias, and to this Writ they may plead: But in Writs Iudiciall, which are only Writs for the doing of execution, there the death of one shall not abate it, vide 19 Ass. 10. & 25 E: 3. and vide Reads case, Coke lib: 10. fol. 134.

Ruggles Case.

IN Ruggles Case, upon the motion of Serjeant Arthure, upon the Statute of 1 Jacobi cap. 15. concerning Bankrupts,* 1.105 a Commission was sued out by some of the Creditors, and they pursued it, and the Land was sold, and it being opposed, they defended their severall Suits, and prevailed by a tryall at Bar: And after other Creditors (which before would neither partake nor aid them) came and prayed to be joyned with them. And the Commissioners doubted upon the Statute, whether they might allow them to be joyned; and the words of the Statute are, That it shall be lawfull for any of the Creditors of the Bankrupt within four months after the Commission sued forth, and till distribution shall be made by the said Commissioners, for the pay∣ment of the Bankrupts Debts, as in such case hath been used, to partake and joyn with other Creditors that shall sue out the said Commission, the said Creditors so joyning, to contribute to the charges of the said Commission, and if the Creditors came not in within four months, then the Commissioners to have power to distribute.

It was resolved, that the Commissioners may sell and prepare for distribution presently upon the execution of the Commission; but un∣till the four months are passed, they may not proceed to distribution;

for the Creditors which inhabite in the remote part of the Realm, per∣adventure cannot have notice: and it may be carried so secretly, that if they might distribute presently, that they which sued out the Com∣mission should be only satisfied, when indeed there was no default in the others.

Also it was resolved, that the offer of Creditors to be joyned, and before they be partakers, is not an affectuall offer, without offering to be contributory to the charges: But to offer any particular summ, is not necessary, because they know not what summ is disbursed, and that is to be assessed by the Commissioners. And the words (for the charge of the Commission) is to be extended to all charges arising in suing forth the Commission, and in execution and defence therof.

Also it was resolved, that at any time before the distribution made, they may come and pray to be joyned: But after the four months pas∣sed, and any distribution made (though it be but of part) then they come too late: For by this means the distribution which is made, and wherby some of the Creditors shall receive more, shall be utterly a∣voided, and another proportion made, which was not the intent of the Statute.

Pasch. 18 Jac. Mason versus Thompson.

* 1.106AN action upon the case was brought for these words, I charge thee with Felony for taking money forth from Iohn Spaci's Pocket, and I will prove it.

* 1.107Henden moved in Arrest of Iudgment that these words were not a∣ctionable.

First, because that it is not any direct affirmative that he is a Felon; and for that he vouched a case (as he said) adjudged in the Kings Bench, Masters, bear Witnesse that he is a Theef.

The second reason was, because that the matter subsequent do not contains matter which must of necessity be Felony, but stands indifferent: For if it be not privily and secretly, it is not Felony; and it may be by way of sport, or trespasse: For as one said, That he is a Theef, and stole his Timber, it is not actiona∣ble, for it might be Timber cut, or Timber growing: so to say, That he stole his Corn or his Apples, or his Hope: For in Mitiorem partem verba sunt accipienda. And it seemed to the Lord Hobart that the first words, viz. (I charge thee with Felony) are actionable, for the Constable (if he be there present) ought to apprehend him therupon, and it is a plain Affirmative. I arrest thee of high Treason; Iustice Winch prima facie held, that the words were actionable; and not quali∣fied by the subsequent words, as it should be if he had said, For thou hast stoln my Apple Trees standing in my Orchard, that could not be Felony, but it is not so there, for it may be Felony, and ex causa di∣cendi, it shall be taken Felony, in these words, for taking money, &c. Warburton and Hutton was of opinion that the Action lay not.

This Case was moved in Mich. 18 Jac. And then the opinion of the Court (praeter Warburton qui haesitavit) was that the Action did not lye. Ideo memorand. quod quetens nil capiat per breve.

Trin. 18 Jac. Hall versus Woollen.

JOhn Hall an Attorney of this Court,* 1.108 brought an action upon the case against Woollen, and declared, that wheras the Defendant was pos∣sessed of an House and Land in Mekon Mowbray in the County of Leicester, for one term of the Lease of Sir John Woodward: And wheras one Webb was in communication of buying the said Lease of Woollen, and Woollen could not sell it without the assent of Sir John W. The Defendant in consideration that the Plaintiff would procure licence of the said Sir John, he promised to pay to him so much as he should disburse, and deserve therfore: And averred that he did pro∣cure a License, and delivered it to the Defendant, and disbursed such a summ, and deserved for his labour such a summ; and the Defendant upon the Count did demur. And the question was, whether that were a good consideration or no, for it did not appear that there was any con∣dition to restrain him from making an Assignment; and if I pro∣mise, that (wheras I am obliged to A.) if you will procure B. (which is a stranger) to make a Release therof to me, I will pay you forty pounds, though it be done at my instance, no action lies, for it is appa∣rant that B. could not release the Obligation: But it was adjudged that is a good consideration, for it appears that there was privity be∣tween them, and it may be that he had promised that he would not as∣sign it without his licence: And in good discretion it was convenient to have it, also it was at his instance, and for his satisfaction: And it hath been adjudged, if one promise forty pounds to another, if he can procure the assent of the Mother of a woman, though he may do it without such consent, yet it is a good consideration.

Mich. 18 Jac. Clerk versus Wood.

CLerk brought an action upon the case against one Wood,* 1.109 alias War∣ren, and count that he was seised of an house and twenty acres of land, &c, in Thursfield; and that he and all those whose Estate he hath, have had a Common in seven acres in Thursfield; And that he and all those, &c. have had one way leading through the said seven acres,* 1.110 and from thence into one Common way leading to Buntingford, and from Buntingford to Blakeley: And that the Defendant had plowed and turned up the seven acres, and estopped the way. The Defendant plea∣ded not guilty, and the Venire facias awarded de Tursfield. And it was moved in Arrest of Iudgment by Serjeant Jones, that it ought to be from all the Towns through which he claim his way, for he ought to prove it in evidence, viz. that he had a way, or otherwise he is not endamnified. But it was resolved that the tryall was good, for Not guilty is properly a deniall of trespasse and disturbance; and though

he ought to prove title to the way, yet it is sufficient if he prove title to the way by and through the seven acres upon evidence. And yet if the Prescription had been traversed, then he ought to prove all the way, any the tryall shall be from every Town through which the way is pleaded to be extended, quod vide 10 E. 4. fol. 10. where it was in two Counties, and the Venire facias shall be from both, and the tryall shall not be by Nisi prius: vide the case between Reyner and Water∣house supra.

Mich. 16 Jac. Rot. 2344. Lamb versus Thompson.

* 1.111EDmund Lamb brought an action of Debt against Richard Thomp∣son, upon an Obligation of forty pounds; the Condition whereof was, If the Defendant shall not be assisting, or any waies aiding unto Thomas Elme, or any other person for the said Thomas Elme, in any Actions, Suits, Vexations, &c. to be commenced and prosecuted a∣gainst the said Plaintiff, &c. That then, &c. the Defendant pleaded Negative: The Plaintiff reply, that he such a day brought Tres∣passe against the said Thomas Elme, and the now Defendant, and had Iudgment; and that the Defendant joyned with him in a Writ of Error, in hinderance of the Plaintiff to have execution against the said Thomas Elme, and so was aiding and assisting unto the said Thomas Elme: Wherupon the Defendant demurred, and it was adjudged by the Court, that this prosecution of a Writ of Error to discharge him∣self of an erroneous Iudgment, is no breach of the Condition, no more then if the Plaintiff had released, and he had brought an Audita Que∣rela: And it shall be intended in this case of a Suit to be solely com∣menced by the said Thomas Elme; and if he will restrain him, that he joyn not in a Writ of Error, it ought to be precisely contained in the Condition, and shall not be taken by a large Exposition, to the for∣feiture of an Obligation, by a generall and ambiguous sentence. It was urged that the Defendants had power to have severall Writs of Error, 11 H: 6. 9. But the Court resolved, that being the Costs were joynt, they ought to joyn, vide Coke lib: 6. fol: 25. but the release of one will not bar the other, vide 34 H: 6. 42. & 35 H: 6. 10. that this Suit is in discharge of the Defendant, and not to charge the Plaintiff; and ther∣fore the Condition is not broken, vide Dyer 253. A Condition to suffer a Lessee quietly to enjoy, the word (suffer) guide all the sentence in favour of the Obligor; and Iudgment cannot be reversed in part, and stand for the other part, or be reversed against one, and stand in force against the other, except in speciall cases. As where Infant Tenant for life, and he in remainder of full age levy a Fine, that shall be re∣versed as to the Infant, and stand for the remainder, for it is no other then as a Conveyance;

Mich. 18 Jac. Powell versus Ward.

AN action of the case was brought for these words,* 1.112 I have matter e∣nough against thee; for Iohn Halden hath found forgery against thee, and can prove it: And after Verdict it was resolved by the Court, that the words are too generall, & will not maintain an Action, no more then if one said, that another had forget a Warrant, for it might be a Warrant for a Buck; and this is not right Affirmative.

Sherley versus Underhill.

A Quare impedit brought by George Sherley Baronet,* 1.113 against Un∣derhill and Bursey, for presenting to the Vicaridge of the Church of Nether Elington, and count of a Nomination as appendent to the Mannor of Elington, and Issue therupon, for they pretend it to be ap∣pendent to the Rectory of Elington: And it was found for the Plaintiff at Warwick Assises, and Iudgment there for him, and a Writ to the Bishop, and therupon a Writ of Error was brought in the Kings Bench, and it was to remove a Record which was between George Sherley Knight and Baronet, and the truth was, that Sir George is not, neither was named Knight by all the Record: And therfore the o∣pinion of the Court was, that the word Knight is part of the name, and so no Record was removed: And it is so materiall that the addition where there is none, or the omission where it is, Knight, makes it no such Record, and they perceiving it discontinued their Writ.

Memorand. That though Iudgment was given at the Assises, the Writ of Error was directed to the Lord Hobart, and the Record is de∣murrant in the Court of Common Berich. And now it was moved, that the Iudgment might be amended, for it was Quod recuperet pre∣sentationem suam ad Ecclesiam praedictam. And the value sound of the Church aforesaid: And it should be Quod recuperet praesentationem ad vicariam Ecclesiae, & valorem vicariae Ecclesiae: And it was urged that it was not the mis-prision of the Clerk, but of the Court; and Iudgment erroneous in point of Law is not amendable, for if it be Quod capiatur, where it should be Quod sit in miserecordia, it is not amendable. But it was resolved and so awarded by the Court, that it should be amended: And the reason is, because the Verdict is gene∣rall, and they found for the Plaintiff, and the Iudgment ought to a∣gree with the Verdict: But it is solely mis-prise by the default of the Clerk, for the Record precedent is in every part, and in the Issue and Verdict, Vicariam Ecclesiae; And by the Statute 8 H. 6. cap. 15. that is amendable, for the mis-prison of the Clerk in the Record shall be a∣mended, though it be in the Iudgment,* 1.114 vide Dyer 258. Also Mich. 33. & 34 Eliz: Rot: 230. between Wilde and John Woolfe, Ideo considerat. est quod praedictus Thomas Wild recuperet versus praedictum Thomas Woolfe, where it should be John; and Error was brought, and it was amended.

* 1.11542 Eliz: Rot: 693. An action of the case by Stepney against John Mor∣gan Woolfe. Id. consid. quod recuperet versus praedictum Morgan Woolfe, and there was no such Defendant, but John Morgan Woolfe, and it was amended upon Error brought in the Exchequer Chamber.

And vide Coke lib: 8. fol. 164. Blackamores case, more cases upon this learning; where the mis-prison of the Clerk in the entry of the Iudgment of a thing which is apparent, and not of necessity shall be a∣mended, as in Mis-prision of the summ of Arrerages before and pen∣ding the Writ of Annuity shall be amended, vide 9 Eliz: Dyer 258.

Mich. 18 Jac. Sir Thomas Wentworths Case.

* 1.116SIr Thomas Wentworth brought Replevin, the Defendant avowed for a Rent granted,* 1.117 and a Nomine poenae, and shews not any De∣mand of the Nomine poenae; But the Issue was tryed, and found upon other matter, viz. Non concessit: And now it was moved in Arrest of Iudgment, that he avowed for a Nomine poenae, and did not alledge a∣ny demand therof; yet Iudgment was given for the Avowant: For it is matter confessed, and the Action is a request, viz. the Avowry, for he is there the Actor: And it is but a Circumstance collaterall to the right: And in Actions upon the Case founded upon a promise, after re∣quest a Licet saepius requisit, shall be a sufficient Allegation of a re∣quest.

Davies Case.

* 1.118ONe Davies acknowledged a Statute-Merchant at Glocester in three hundred pounds, and the Statute did not limit any day of pay∣ment, and yet an Extent was sued; And upon motion by Serjeant Harris, a Supersedeas was awarded; for that is no Statute, for they had not pursued the Authority given by the Statute: For the Statute of Acton Buanell, 11 E. 1. saies, if the Debt be not paid at the day: And though Debt upon an Obligation is payable presently, if the day be not expressed, yet there the Statute appoint a day certain.

Pasch. 15 Jac. Rot. 1714. Cartwright versus Underhill

* 1.119AN action of Trover and Conversion was brought by Abraham Cartwright against Clement Underhill: And upon Not guilty pleaded, there was found a speciall Verdict to this effect.

* 1.120Francis Bayle being a Merchant, had made a fraudulent Deed to the Defendant of the Goods contained in the Count, but afterwards he went abroad to Church, to the Exchange, and did Trade and Com∣merce:

And yet afterwards it is contained in the Indenture of Sale by the Commissioners to the Plaintiff, that he had made this fraudulent Deed, and that afterwards he had traded and served the Exchange untill a day after, at which day he wholly absented himself. And upon this speciall Verdict the Defendant had Judgment.

For every Deed to defraud other Creditors (but those to whom such Deed is made) is not sufficient to make one to be a Bankrupt: But if he make any Deed after he begins to be a Bankrupt, it shall not bind: But upon the Statute of 1 Jacobi, which makes him a Bank∣rupt, which make fraudulent Deeds, it ought not to be as this case was, viz. so long before he became a Banrupt: And there were many more imperfections in the speciall Verdict.

Hill. 18. Jac. The Earl of Clanrickards Case.

THe Earl of Clanrikard, and Frances his Wife,* 1.121 brought a Writ of Right against the Earl of Leicester;* 1.122 And upon the Summons be∣ing returned (but no return of proclamation made at the Church of the Parish where the Land lies upon the Lords day Post praedicationem sive Divinum Servitium) there was an Essoin cast, and that was ad∣journed in the Essoin Roll: And the Demandauts perceiving the re∣turn to be insufficient, they sue an alias Summons, which having great returnes (as all the Writs issuing out of this Court in a Writ of Right, or other reall actions ought to have) was returnable, Oct: Hil: And the Tenant cast an Essoin upon the alias Summons: And it was moved at the day of Essoin, and now also at the first day of the Term by Serjeant Harris, that an Essoin did not lye, for he had an Essoin be∣fore: And by the Statute de essonii calumniand. 1•• E: 2. Non faciant quia alias se essoviant: And the Statute 31 Eliz: cap: 3. which gives the Proclamations, hath prouided that no Grand Cape shall be awar∣ded upon this default, but only an alias Summons, so that the Writ is good and stands, and therfore he shall not be otherwise essoined: But it seemed to the Court to be otherwise here; for the first Essoin is as Nul, and therfore vide Dyer 252. that when the Sheriff return tarde in a Formedon, and the Tenant is essoined, and that is adjourned, it is of no effect, but he shall be essoined upon the other Writ of alias, &c. vide 24 E. 3. Br: Essoin 24. accord. also vide 21 H. 6. That upon the re∣summons after the death of the King, the Tenant shall be Essoined, and yet the first Writ and all is revived: And in this case though the party may appear to the first Writ, ••ne, note besoigne de ject un es∣soign, for the nature of that is to save a default, so that no Grand Cape shall be awarded, and there no Grand Cape ought so be avwarded, and therfore the Essoin before not avoidable.

Hil. 18 Jac. Rot. 739. Bridgeland versus Post.

* 1.123BRidgeland against Post and his Wife in a Writ of Dower, the Tenants demand the View, and the Demandant counter-pleads the View. Quod le tenant n'ad entry nisi per le Baron; And therupon the Tenant demur: And it was adjudged a good Counter-plea, and the Tenant ousted of his View, Accord. 9 E. 4. fol: 6. vide 2 H: 4. 24.

Pasch. 19 Jac. King versus Bowen.* 1.124

* 1.125KIng brought an action of the case against Bowen a Minister, for saying, Thou art a false forsworn Knave, and didst take a false Oath against me at a Commission at Ecclesall (innuendo a Commissi∣on sued out of the high Commission.) the Defendant justifie, and after issue tryed and found for the Plaintiff, it was moved in Arrest of Iudg∣ment, that these words were not actionable, for it doth not appear in the Count, what Commission, nor out of what Court, nor what matter he did depose, but generally, that he had taken a false Oath at a Com∣mission. The former words (forsworn Knave) will not maintain an action, otherwise of Perjuted Knave, for that shall be intended in a legall sence; and no Innuendo will supply matter which give not cause of action, nor the Iustification: But the words ought to contain scandall in themselves, without any supplement. An action lies for say∣ing, one had forsworn himself in a Court Baron, and to say, he had for∣sworn himself in the Common place; but to say, that one hath for∣sworn himself at the Bar (innuendo the Bar of the Common place) will not maintain an action, Querens nil capiat per breve.

Pasch. 19 Jac. Tippin versus King.

* 1.126SIr George Tippin Plaintiff, in an action of Wast against King, and alledge Wast in severall Closes Sparsim:* 1.127 And Iudgment by nihil dicit, and an Inquiry awarded, the Iury found but eight pence Da∣mages: And upon motion for a new Writ, it was resolved, that the Iury ought not now to enquire of the Wast: And therfore the diffe∣rence is, when the Plaintiff upon the distresse recover upon the Sta∣tute; there the Statute gives power to enquire of the Wast: But in this case the Wast is confessed Per nient dedire,* 1.128 Dyer 204. a. accord: And it was so adjudged between Ewer and Moyle upon demurrer in Wast, there the Wast is confessed, and the Writ shall be only to en∣quire

of the Damages; so if the Plaintiff will release his Damages, he shall have a Writ upon Iudgment of the place wasted.

Mich. 18 Jac. Rot. 2805. Pitt versus Chick.

MAtthew Pitt brought Replevin against Chick;* 1.129 The Defendant avow, for that the place contains five acres, which lye between the Lands of Sir George Speck: And that the said Sir George Speck and all his Ancestors,* 1.130 de temps d'out, &c. have used to have Herbage and Pasture of the said five acres, viz. if they were sowen, then after the reaping untill re-sowing; and if they were not sowen, then for the whole year, and convey Title to the said Herbage by Lease in writing to him, and avow Damage feasant.

And it was urged, that he which had all the profit for a time, and the sole profit, had the Free-hold; and that is not a thing which lye in Prescription, semble al Common, or so pasture for a certain number of years: And it was said, that a Grant de vestura terrae, or de herbag. terrae for one and twenty years, is a good Lease. But it was adjudged, that it is a good Avowry, and he had only profit a Prender, and that he might have an Assise, or justifie for Damage feasant: And he which hath the fore-crop is he which hath the Free-hold, 15 E. 2. Fitz. Prescrip∣tion 51. And the very case in, temps E. 1. Fitz. Prescription 55. and this sole feeding might have Commencement by Grant, and therfore a good Prescription. Iudgment for the Avowant.

Trin. 19 Jac. Wilson versus Stubbs.

WIlson brought Replevin against Ralph Stubbs;* 1.131 The Defendant avow as Bayliff to the Earl of Northumberland, for Amerce∣ments within a Leet at Toxcliffe. And upon Issue joyned, and tryall at the Common Pleas by Default, it was alledged,* 1.132 that Ralph Stubbs was dead; and the Plaintiff would proceed, and had Iudgment, Da∣mages, and Costs sixteen pounds, and a Capias awarded to the Sheriff of York, and Ralph Stubbs the Son, as is supposed, is taken, and had an Indempnitate nominis, which Writ being directed to the Iustices, they award a Supersedeas: And now upon divers motions, the sixteen pounds was brought in Court, and they proceed upon the Indempnitate nominis. The question was, if the Supersedeas lye therupon, being that it is only a surmise and matter en fait, and lies properly and more frequently, for preventing an Arrest upon Outlawry, and after that the party is taken upon the Outlawry, vide 5 E. 4. 23. & vide lib: Intrat. and it is matter not frequent in use, and is in nature of an Audi∣ta Querela, and the party shall find surety to pay the Debt, if it be found that he be not another person: And the Court inclined strongly that it is no Supersedeas, but it is much in the discretion of the Court, vide lib: Intrat. 5 E. 4. 36. bone Case, and fol. 51. & 53.

Mich. 19 Jac. Allen versus Swift.

* 1.133ALlen brought an action of the case against Swift, and declared, That wheras he bargained and sold, that is to say, Merchandi∣zed for Lead in the County of Derby,* 1.134 and therby hath acquired money towards his livelyhood: The Defendant said of him, He is a Bank∣rupt, and is not able to pay his debts, but will run the Country; It was found for the Plaintiff, and moved in Arrest of Iudgment by Ser∣jeant Harvey, that the action lay not, because that the Plaintiff shewed not, that he used it as his Trade, nor that he gained his living by buy∣ing and selling; Also he is entituled Gentleman. But the Court hold that the action would well lye, and it had been adjudged 14 Eliz. That a Tanner shall have an action for such words.

Mayes versus Sidley.

* 1.135MAyes brought an action of the case against Sir Isaac Sidley, and count, that wheras one was indebted unto the Plaintiff in a hun∣dred pounds by Obligation, the Defendant in consideration that the Plaintiff at his request would forbear to sue the said party, and if he did not pay it, the Defendant would; And upon Non assumpsit pleaded, and Verdict for the Plaintiff, Hitcham moved, that is no good consideration, for it is uncertain, for if he forbear one hour, one day, this is a forbear∣ance; And he resembled it to Palmers Case, forbear him a little while, and if he do not pay it, I will: This was adjudged for the Plaintiff in Banco Regis, but afterward by a Writ of Error it was reversed. And he cited a President (which was shewn) of the 36 of Eliz. where the case was the same in effect with this: And Iudgment reversed, but it might be for other Errors.

And the Court inclined that this action lye, for when it is alledged that he did forbear, it shall be intended of such a forbearance by which the party had ease and benefit, and shall be a competent and conveni∣ent time; and that shall be convenient time, as in other cases: As Tenant pur auter vie, shall have convenient time to remove his goods after the death of Cestui que vie; And it shall be convenient time to purchase a Writ by Iourneys Accounts: And it was said, that there were many Presidents of this case, and of the like actions, for if he doth not forbear convenient time, then it is no consideration, and it being left indefinite, the Law will judge of the convenient time, but it was adjourned, and after the first day of Hil. 21 Jac. This case was moved by Hitcham, and he said, that the Writ and Count vary, for the Writ is Per magnum tempus distulit: And the Count saith, that he did forbear for the space of a year and more: Also no time is put in the Writ, but is in the Count, and that he did forbear by a year and more after that; so that it doth not appear that he did forbear till the Writ purchased, for that appear to be half a year after the year passed, and he ought to forbear it totally. Richardson answered him, that the

breve, Writ did not comprehend the time and circumstance, but the matter and substance, and ••ot at large, for then it should not be breve; As in a case sur Trover, no day in the Writ, but in the Count, and forbearance of a year and more being alledged, and issue taken and found for the Plaintiff, it shall not be intended that he had sued, and not forbeared till the commencement of that Suit: And it is like to a grant of a Rent (pleaded without Deed) and issue joyned upon non concessit, and it is found Concessit, and good, for it shall be intended effectuall, &c.

And the Court shewed their Iudgment, and concurred that Iudg∣ment should be given for the Plaintiff: And this difference was taken when the promise appear to be such, that it shall not be any benefit to the party in whose behalf it was requested, as forbearance for an hour, or a little time, there it is not good, but where it is generall and not limited to any time, that shall be a 〈◊〉〈◊〉 ill forbearance, or at least a for∣bearance for a convenient time, and that ought to be alledged for such a time, which the Court shall adjudge a convenient time.

Lord Hobart agreed, but he said, that it is not a totall forbearance, for then it should be that he should not sue him at all, but that he will forbear, is good by the subsequent forbearance; and there is no varia∣tion between the Count and the Writ, but the Count illustrateth, and amplifies the Writ. Iudgment pro querente.

Pasch. 20 Jac. Suggs versus Sparrow.

IN a Scire facias against the Bail,* 1.136 he plead that after the Iudgment and before any Writ of Capias was sued out against the Principall, he died: And upon Demurrer the Court adjudged it a good plea;* 1.137 and i•• this case a Iudgment was cited, Hil: 10 Eliz. Tadcaster brought debt against Hallowell, Hobs was Bail, and the Plaintiff recovered: The Defendant brought a Writ of Error in the Exchequer Chamber upon a new Statute, and after divers terms Hall died, and after the Plain∣tiff was non-suited, without mention made of his death. Tadcaster brought two Scire facias against Hobs, and upon two Nihils had Iudg∣ment: Hobs brought an Audita Querela, alledging the death of Hallow∣ell before Scire facias, and before Capias; and it was adjudged that the Audita Querela well say, and Hil: 4 Jac: Rot: 975. between Timberley and Calverly, Scire facias brought against the Bail, and he pleaded that the Principall died before Capias returned against him; And Iudg∣ment upon argument given against the Plaintiff: The like Iudgment between Iustice Williams, and the Sureties of one Vaughan.

Hil. 19 Jac. Rot. 312. or 3125. Walrond versus Hill.

London,

* 1.138WAlrond brought an action of debt upon an Obligation of three hundred pounds against William Hill, with Condition, that if Thomas Harris and Elizabeth his Wife,* 1.139 before the end of Easter Term next, shall levy a Fine before the Iustices of the Common Pleas, by due course of Law, to the use of the Plaintiff; that then, &c. the Defendant pleaded, that before the end of the said Easter Term, the Plaintiff did not purchase any Writ of Covenant, pro fine leuand. wherupon a Fine might be levied according to the course of Law. The Plaintiff replyed, that the fifteenth of April, the said Thomas for money enfeoffed another of parcel of the Land that was to be conveyed by the Fine: And that the said Thomas and Elizabeth his Wife have not any Estate or Interest in the said parcell so conveyed, wherof they may levy a Fine: And upon this Replication the Defendant demur∣red.

[ 1] And upon argument at Bar by Serjeant Harvey for the Plaintiff, and Serjeant Henden for the Defendant; the first question was, If the Bar be good, Intant que le Defendent est oblige. That Thomas Harris and Elizabeth his Wife shall levy a Fine, he ought to procure that to be done at his perill, semble al 4 H. 7. & 3 H. 6. Condition that John S. a stranger shall take Alice D. to his Wife, before Mich. If I. S. refuse, the Obligation is forfeited: And therfore it was urged that he ought to procure a Writ of Covenant at his perill. But the Lord Hobart held that the Plaintiff ought to procure the Writ of Covenant, to have made himself capable of the Fine: And he put this case, if I. S. be ob∣liged that I. D. shall enfeoff I.N. the Obligee, such a day I. N. ought to be upon the Land, or ought to make a Letter of Attorney to receive the Livery, or otherwise the Obligation is not forfeited: And when a Co∣venant is to levy a Fine, he which is to do the first act, &c. vide Palmers case, Coke lib: 5. fol: 127. & 4 E. 3. 39. 18 E. 3. 27. 11 H. 4: 18. 21 E: 4. 2.

[ 2] The second question was, whether this Obligation be ferfeited, be∣ing that the said Thomas Harris had made a Bargain and Sale of part of the Land to another before, so that he was disabled at the time to levy a Fine: And we all agreed, that the Condition was impossible, and is all one as if he had disabled himself afterwards; as in Maynes case, Coke lib: 5. 21. where the Covenant was to make a new Lease upon surrender of the former Lease, there if he which ought to make the new Lease, disables himself to make a new Lease, and to accept of the Surrender, by granting the Reversion for years, he ought not to do the first act, viz. Surrender, but the Covenant is broken: And in this case it is all one, as if one (who had granted the Reversion for years or for life) Covenant that he upon Surrender will make a new Lease, he had broken this Covenant, being disabled at the time: And it was said and agreed by the Court, that the Fine to be levied ought to be an effectuall Fine, which might operate to convey the Land according to the Covenant.

* 1.140One case was vouched in this case to be between Burnell and Brook, where the Condition was, that he should acknowledge a Iudgment,

and a good Bar, that the Plaintiff had not purchased an Originall Writ, for he ought to make himself capable of Iudgment acknow∣ledged to him, vide 34 E. 1. Fitz: Debt 164. A Condition that if he pre∣sent the Obligee to a Benefice, that then, &c. Though the Obliges taken Wife, by which he is disabled to take it, put he ought to pre∣sent and offer him to the Ordinary to refuse him.

Vide 28 E: 4. 6. where parcell of the Land was recovered, yet Debt lies for entry, Damages recovered in a Court of ancient Demeasn, which case was then vouched, but it is not much to the purpose: And afterwards we all agreed that the Plaintiff should have Iudgment.

Hord versus Cordery. A President was shewn which was thus.

IN the County of Wiltes, Richard Hord Clerk, Vicar of Chute,* 1.141 brought an action upon the Case against William Cordery, and Brid∣get his Wife, and Dorothy Cox;* 1.142 for one malicious confederacy of charging the Plaintiff with the felonious Raye of the said Dorothy Cox, and procured him to be examined before Sir Anthony Hunger∣ford a Iustice of Peace, and therupon was bound in a Recognizance to appear at the next generall Sessions of the Peace at Devises, and from thence was bound over to the Assises: And there the Defendants An: 15 Jac: before Sir Thomas Flemming and Tanfield Iustices of As∣sise preferred one Bill of Indictment of their malice aforesaid, and by the procurement of the said William and B. the said Dorothy shewed to the grand Inquest, whether it were true or false.

And the Iury perceiving the malice and the falsi••y, did not find it to be true, and gave their Verdict by Ignorance. Vpon Not guilty pleaded by William and Bridget, and non informatus by Dorothy, the Iury found for the Plaintiff, and after a Writ of Error, An: 15 Jac: and 20 marks costs for the delay, Ego vidi recordum, & est bien & pleivement aver, que il ne ravish le feme, & est ent. Hil. 10 Jac. Rot. 92. 1. 1.

Trin. 20 Jac. Hawkins versus Cutts.

HAwkins brought an action upon the case against Cutts,* 1.143 and decla∣red that he was of good Fame, &c. and for the space of eight years last past, had used the Art and Mystery of a Baker Pandopatoritae, and had gained his living by buying and selling; the Defendant said of him, He is a Bankrupt Knave: And not guilty,* 1.144 it was found for the Plaintiff: And in Arrest of Iudgment it was moved, that it is not shewn that he was a common Baker, neither had used the Trade, but used the Art and Mystery of a Baker: And there is (as Serjeant Ho∣bart said) as much skill and art used by Bakers of Bread in private mens houses, as by common Bakers; And every ••ooman which bake in private (if she be a good Housewife) use the art and mystery of a Baker.

And if a man had said generally, that he had gained his living by buying and selling, and not shewn what Trade he had used, it is not good: Therfore the Trade ought to be alledged, and so sufficiently, that the Court may judge him such a person, as is within the Statute of Bankrupts. Also Winch said, that it is not alledged, that he gain∣ed his living by buying and selling any thing which concerne his Trade: And I was of the same opinion, and relyed upon the case of 11 H. 4. 45. An nation upon the case against an Inn. keeper, and shew∣ed that he was lodged there, and his Horse was stoln: And the Defen∣dant pleaded a plea, that he delivered to him the Key of the Stable, &c. And by the Court the Writ shall abate, because he did not shew that he was a common Hostler: And therfore Iudgment arrested.

And the Court agreed that if the Count were good, the words would maintain an action; for a Baker is a Trade mentioned in the Statute 5 Eliz. but it ought to be a Common Baker.

Trin. 20 Jac. Whiteguift versus Eldersham.

* 1.145JOhn Whiteguift brought a Writ of second deliverance against Ri∣chard Eldersham, for taking of his Cattle at Clanding, in quodam loco vocat. Corles Paud. The Defendant makes Conuzance as Bay∣liff to Sir Francis Barrington, because that the place, &c. was parcell of the Mannor of Curles, and that John Curles was seised before the time,* 1.146 &c. therof, and held it of Sir Francis Berrington as of his Man∣nor of Clanding by Knights servies, viz. by Homage, Fealty, & survi∣tium scuti, and by the Rent of ten pounds, payable yearly at two Feasts, of which Rent the said Sir Francis was seised by the hands of the said John Whiteguift, as by the hands of his very Tenant, in his Demsn as of sea, and Avow put Homage infect. wherupon the Plaintiff de∣mur.

And shew for cause, that the Defendant had not shewn any Title to have Homage of the said John, and that the Cognizance is repugnant and no sufficient Seisin alledged of the Services, and that the shewing of the Seisin is not formall, vide Bevils case, Coke lib: 4. fol: 6. Seisin of Rent is the Seisin of the Services, and he might have traversed the Tenure, and the other party ought to shew whether he had done Ho∣mage before, vide 44 E. 3. 41. when an Avowry is upon the Baron for the Homage of the Feme, it is sufficient Avowry without shewing that he had Issue by her; and yet if he had not Issue, he could not a∣vow upon the Baron, but that ought to come on the other party, vide 5 E. 2. Fitz. Avowry 209. A man avow for Homage, and alledge Seisin of Esenage without Homage, and good.

And after upon motion this Term, Iudgment was entred for the Defendant.

Trin. 20 Jac. Sherwells Case.

MAry Sherwell brought a Writ of Dower,* 1.147 and in But therto it was pleaded, that the Father of the Husband of the Demandant was seised of one house and sixty acres of Land in Fire, and made a Fe∣offment to the use of himself for life, and after to the use of the Hus∣band and the said Mary for their lives,* 1.148 for the Ioynture of the said Mary, the remainder to their Heirs: And that afterward the Father died in the life of the Husband, and aftre the Husband died: And ad∣judged that this is no Ioynture to bar Dower; according to the opinion in Varnons Case, because that the Estate of the Wife at the Com∣mencement, take not effect immediatly after the death of the Husband, Et quod abinitio non valet, tractu temporis non convalefeit: And if a Feoffment to the use of the Baron for life, the remainder to I. S. for years, remainder to the Feme for her Ioynture, this is not a Ioynture he bar Dower.

Trin. 20 Jac. Francis Curle versus James Cookes.

AN action of the case was brought, and Count,* 1.149 that the King by his Letters Patents, An: 12 Jac. reciting the Statute of 31 H. 8. for erecting of the Court of Wards, and the Officers therof; and that two persons shall be named by the King and his Successors, who shall be Auditors of the Land of the Kings Wards: And reciting the Statute of 33 H. 8. for the making of the Master of the Wards and Liveries, and his power, had made him the Plaintiff one of his Auditors, and granted to him the Fees due and accustomed to be had, and 40. Marks fee, and gave power to him as one of his Auditors, according to the said Statute, and to exercise it with the Fees in as ample a manner as others had used: And averred that at the time of the Patent made, and at all times after the erection of the said Court, the Auditors had engrossed all the Accounts of the Feodaries, and that they had taken therfore two shillings, and shewed that he was sworn and exercised that Office, and shewed the Oath specially, and that he had by vertue therof ingrossed divers Accounts of the Feddaries, and had taken ther∣fore two shillings; and that the Defendant having conference with the Plaintiff concerning his Office, and his bone gesture therin, said to him, You have received money for ingrosement of Feodaries (innuendo the said Fees for ingrosement of the Accounts of the Receivers, Feoda∣ries, and other Officers aforesaid) which I will prove is Cousenage: And then and there spoke further, You are a Couse••er (innuendo the said Francis decepisse Dominum Regem 8. subditor in executione officii praedicti) and you live by Cousenage, & deceptionem dicti Domini Re∣gis & subditorum shorum in executione officii ful. Non Culp. verdict. pro Plaintiff. and Damages thirty three pounds.

It was moved in Arrest of Iudgment by Attho, that first it is al∣ledged, that the Fee of two shillings is lawfull, and that he said, You have received monies for ingrossement of Feodaries, which I will prove is Cousenage (innuendo the Fees aforesaid which are lawfull) and then by his own shewing it is not Cousenage.

2. It is insensible, Ingrossements of Feodaries, for they cannot be ingrossed, but their Accounts.

3. That Ad tunc & ibidem, for the other words are for other words spoken at another time of the same day, and they are not actionable, for they do not relate to his Office. Also the words will not maintain a∣ction, for the word Cousenage is generall, and of an ambiguous inter∣pretation, and therfore no action lies for that: And he resembled it to Sir Edmund Stanhops case; He hath but one Mannor, and hath got it by swearing and forswearing:* 1.150 And to the Case of Midlemore and War∣low, An. 30 Eliz. Thou art a cousening Knave, and hast cousened me of forty pounds; And adjudged that no action lay, vide Coke lib: 10 fol: 130. in Osbornes Case, Thou art an arrant Knave, a Cousener, and a Traytor; Action lies only for the word Traytor, and yet all being spoken at one time aggravate, and Damages shall be intended to be gi∣ven only for these words which are actionable, vide ut supra fol: 131. if the words be alledged as spoken at severall times, and as severall cau∣ses of actions, there if the Damages be entire, the Plaintiff shall not have Iudgment, if any of the words do not bear action.

* 1.151And other cases were cited that Cousenage is not actionable: And Mich: 40 Eliz: Stanley and Buddens, or Boswels case; there an Attor∣ney brought an action of the case for these words. Thou art a cousening Knave, and gettest thy living by Extortion, and didst cousen one Pi∣geon in a Bill of Costs of ten pounds: Adjudged that the last words were actionable.

This case was adjudged for the Plaintiff, but I was absent in Chance∣ry, and heard not their reasons, for it was doubtfull.

Hil. 17 Jac. Empson versus Bathurst.

* 1.152FRancis Empson brought an action of Debt upon an Obligation, a∣gainst George Bathurst; the Defendant pleaded the Statute of 23 H. 6. That an Obligation taken Colore officii, of any one in their Cu∣stody,* 1.153 with any other Condition then for appearance at the day mentio∣ned in the Processe shall be void: And shewed that an Extent issued out of the Chancery, to extend the Land of Robert Leigh upon a Statute Staple of twelve thousand pounds, in which he was obliged to the Plaintiff: And that Anthony Thirrold was Sheriff, and Charles Empson was under Sheriff, and shewn an Extent of the Land return∣ed, and before any Liberate it was agreed that the Defendant should pay to the under Sheriff two and thirty pounds ten shillings, and that he should be bound to the Plaintiff his Brother, for the security therof, to the use of the said Charles, and therupon he entred into the said Ob∣ligation, which by the said Statute is void, the Plaintiff replyed and

shewed, that by the execution of the Extent he agreed to pay him the said two and thirty pounds ten shilling, and pleaded the Statute 29 E∣liz. cap. 4. wherupon the Defendant demurred.

And it was adjudged against the Plaintiff,* 1.154 for this Obligation is extortion, and Colore officii, and void by the Commen Law.

Extortion is when any one Colore officii extorquet feodum non debitum, plus quam debitum, aut ante quam debitum, vide Dive and Maringhams case, an Obligation made by Extortion is against Com∣mon Law, for it is as Robbery, vide Coke lib: 10. fol: 100. Dyer 144. And in this case the opinion of the Court was, that no Fee is due to the Sheriff by the Statute of 29 Eliz. cap; 4. because the Fee is not due untill execution, Copulative extent, and delivered in execution, if it were a Statute-Merchant, in which is a Liberate included, then the Fee is due.

Also it was agreed that by the Statute the Sheriff ought to have six pence in the pound, where the summ exceed a hundred pounds for all, and not twelve pence in the pound.

Mich. 20 Jac. Bullen versus Gervis.

RObert Bullen brought an action of Debt for 12 l. upon an Obliga∣tion, against William Gervis Administrator of Owen Godfrey;* 1.155 The Defendant pleaded that the Intestate was outlawed at the Suit of Francis Murrell, after Iudgment, and pleaded it specially, and be∣ing so Outlawed died, and that Outlawry is in full force, Iudgment si Action, wherupon the Plaintiff demurred.

8 E. 4. 6. There by Littleton, between Young and Pigot, in an action of Debt against Executors, it was holden a good plea to say, that their Testator was Outlawed, for they are charged to the King for the Goods. Genny said, that the plea amount only to this, that they have not any Goods, and so answer argumentative. And 21 E. 3. 5. By Bri∣an, in a Writ of Debt brought against Executors, it is a good plea to say, that their Testator was Outlawed sans luy intitle.

36 H. 6. 27. By Prisot in Debt against one as Executor of Jane, the Defendant said, that the said Jane was his Wife, and demand Iudg∣ment si action, and it seems this is no Plea, because that a Feme Covert may have many things which the Husband shall not have, as Choses in action, and she may make Executors if the Baron agree. And Prisot said, Sir, It seems to me that it is no good plea for an Exe∣cutor to say, that his Testator died Outlawed Cansa qua supra. Quare cur hona materia.

Vpon the reading of the Record, it seems that it is no plea, for it is only by Implication, and that may be given in evidence. Also the Executor or Administrator may have divers things which are not for∣feitable to the King; as if the Testator had Mortgaged his Land upon Condition, that if the Mortgagee pay not at such a day to him, his Exe∣cutors, or his Heirs, a hundred pounds, that then it shall be lawfull for him, or his Heirs to re-enter, and after and before the day the Testa∣tor is outlawed, and makes his Executors and dies, and at the day the Mortgagee pay the money to the Executors, that is Assets, and not forfeited is the King.

So if Tenant for life of a Rent be outlawed, and the Rent arrear, and makes his Executors and die, this arrearage is due to the Execu∣tor, and is Assets, and not forfeited, for the Rent was a Free-hold, for which during his life no action of Debt lay, and these arrearages reco∣verable by the Executors are Assets.

Also if this should be a good plea, which is only by Implication, he might therby prevent the Plaintiff of his recovery.

Also though choses in action are by information in the Exchequer re∣coverable, yet if the Executor bring a Scire facias upon the Iudgment, he shall recover, and shall be accountable to the King therfore; and the Debtors of the Intestate (though he was outlawed) may pay the debts to him, and his release is a good discharge to them.

Also it was agreed, that an Executor or an Administrator might bring a Writ for the reversall of the Outlawry, and the Outlawry is not a Bar to him:* 1.156 And one case was vouched by Attho, which was ad∣judged upon the like plea in this Court, Trin: 37 Eliz: Rot: 2954. Wool∣ley against Bradwell and his Wife, Executors of Sir Thomas Man∣nord, and the matter depended a year and was argued, and adjudged that it was no plea, for it is but by argument, and so being, Serjeant Hobart said, this Argument ought to be infallible, also this is the matter and not the form, for in this case the Demurrer was generall: and the Book of 3 H: 6. 14. & 32. there it is well argued, and the better opinion, that it is only by argument: And a man outlawed may make an Executor, and this Executor may have a Writ of Error to reverse the Outlawry: And therupon and upon the view of the Record in Woolleys case, the Court gave Iudgment that it is no plea.

Lightfoot versus Brightman.

* 1.157LIghtfoot brought on action of Covenant against Brightman, and count, that the Defendant being possessed of an Advowson in grosse for tearm of years, covenanted that he would not grant nor assign his Interest to any,* 1.158 without offer therof first to the Plaintiff, and that he should have it fifty pounds better cheap then any other, and alledge breach of the Covenant, that he granted the said Advowson and his tearm therin over, without offering it to the Plaintiff, and Issue joyn∣ed upon non concessit, and found by Verdict quod concessit, and dama∣ges fifty pounds. And it was moved in Arrest of Iudgment, that it is not alledged, that the Grant upon which the Issue is joyned, was by Deed, and then no breach assigned: I at the first was of opinion that the Iudgment should stay; but after upon advisement, I concurred with Serjeant Hobart, and Iustice Winch, that it was averred by the Verdict, for now it being a perfect Grant, it shall be intended that up∣on the Evidence a Deed was shewn; as upon Issue joyned upon Grant of a Reversion, where it is not alledged that it was by Deed, or that the Tenant atturned, yet if it be found it shall be good: And so in Avowry for a Rent-charge, where the Grant therof is pleaded not by Deed, and Issue is joyned fur concessit, and found quod concessit, that is good by the Verdict, like to Nichols case, Coke lib: 5. Debt upon a Bill, payment pleaded, and Issue found for the Plaintiff, he had Iudg∣ment: But it seems, if it had been found for the Defendant, the Plain∣tiff

shall have Iudgment, for the Bar confesse the action, as in the 9 H. 6. Debt upon an Obligation, the Defendant plead that he delivered it to the Plaintiff to be his Deed, when certain Conditions were per∣formed: And he pleaded that the Conditions were not performed, if it be found accordingly, yet the Plaintiff shall have Iudgment, Coke lib: 2. fol: 61. Wiscots case, a Lease by Baron and Feme, which ought to be by Deed pleaded generally, and found the Plaintiff had Iudg∣ment, vide Smith and St••pl••tons case.

Mich. 20 Jac. Chittle versus Sammon.

CHittle against Sammon in Replevin,* 1.159 Counsance for Rent as Bay∣liff to Sir John Reves, upon a Grant out of the Land, wherof the place in which, &c. was parcell, upon a Grant made to the Father of Sir John, and for Rent arrear, &c. Issue was joyned upon this point, if the place was parcell of the Land out of which the Rent was gran∣ted, and found by Verdict that it was: And now moved by Attho in Arrest of Iudgment, that it is not alledged that this Rent was arrear after the death of the Father, as it ought to be, and therfore it may be intended that this Rent was arrear in the life of the Father: But the Court agreed and resolved that it was good after Verdict, for now it is pleaded that it was arrear, and not paid to him, Ergo it was due to him; and though it might have been more fully pleaded, yet after Verdict it is sufficient.

Fletcher versus Harcot.

AN action upon the case was brought by Fletcher of Otely against Harcot, and count,* 1.160 that wheras the Defendant had arrested one Batersby by a Commission of rebellion,* 1.161 issuing out of the Court of the Lord President and Councell of the North, as he affirmed: And wheras the Plaintiff keeps a common Inne in Otely, and had kept it by the space of five years, and had entertained men. The Defendant requested the Plaintiff to keep the said Batersby in his Inne at Otely, by the space of one night, as a Prisoner, and that he would keep and save him harmlesse, and shew that he had kept him for that night as a Prisoner: And Batersby afterward brought an action of false Impri∣sonment against him for the said keeping of him in his house, and that he had expended and laid out in defence thereof ten pounds: And that he had required him to save him harmlesse, and he refused. Non assumpsit found for the Plaintiff, and moved by Harvey in Ar∣rest of Iudgment, that it is no sufficient consideration, because it doth not appear that he had lawfully arrested the said Batersby, for it is not affirmatively alledged, but (as he said.) Also it doth not appear that the recovery in the action of false Imprisonment was for the same cause; but in that he had misinformed, for it was in the Record Pro custodia praedicta, & ex causa praedicta. And for the other matter the Lord

Hobart seemed at first to doubt, if it did not appear that it was a law∣full Arrest, then there was no consideration: But because the diversi∣ty, when the consideration appears to be for doing of a thing which is unlawfull; As if one at the request of I. S. promise to better I. D. and he promise to save him harmlesse, this is a void Consideration; But if one request I. S. to enter into the Mannor of Dale, and drive out Cat∣tle, and that he will save him harmlesse if he doth so, and after Tres∣passe be brought against him, and recovery had, he shall have his action: So if a Sheriff pretending to have a Writ, where he hath none, arrest one, and request an Inne-keeper to entertain him in his house, or hire one to conduct the Prisoner to the Gaol; and promise to keep him without Damage; if an Action be brought, and recovery had therupon, the party shall have an action of the case against the Sheriff upon this promise, for he which doth a thing which may be lawfull, and the ille∣gallity therof appear not to him, he which imploys the party and as∣sume to save him harmlesse, shall be charged: And Iudgment was entred for the Plaintiff▪

Mich. 20 Jac. Parkers Case.

* 1.162AN action of Debt was brought against the Hundred of _____ _____ in the County of Stafford, by William Parker, upon the Statute of Winchester, cap: 1, & 2. reciting the Statute, That forasmuch as Rob∣beries do daily encrease. Murthers, and burning of houses, and Theft be more often used then they have been heretofore,* 1.163 and Felons cannot be attainted by the Oathes of the Iurors, which had rather suffer stran∣gers to be robbed, and to passe without pain, then to indite the Offen∣ders, of whom great part be flock of the same Country, &c. And upon Nil debet pleaded, it was found for the Plaintiff: And it was moved by Serjeant Bawtry, that the Writ had recited the Statute otherwise then it was, for the Writ saies, Indicari pro indictari, and it ought to be written by this Abbreviation Indicāuri: And the word Indictari is a word by it self, and he resembled it to Freemans case, Coke lib: 5. fol: 45. Fecit vastum vendicōnem & destrictionem, for destructionem, and not amendable. Also Coke lib: 4. S. Cromwells case upon the Statute of Rich: 2. de scandalis magnatum, the word Messoignes is said Messuages, and not amendable. Harris answered that the Cursitor had a Note drawn which was well; and it was only his mis-priston.

Secondly, that there is no such Passive Verb as Indicari, and so be∣ing insensible, shall be amended: And for that vouched 11 H: 6. 2. & 14. adjudged upon the Statute of forging of false Deeds, Immaginavit, were it should be Immaginatus est, and amended.

3. This Abbreviation is sufficient: Also he said that it is only the preamble of the Statute, wherupon the action is not founded, but upon the body of the Act. Sir George Wrothies case in Ejectment, the word Demisit was amended and made Divisit.

Brickhead against the Bishop of Yorke, and Cooke for the Ticaridge of Leeds, the Writ was Vacariam, and for that the Cursitor was exa∣mined,

and his Instruction being Vicariam, it was amended there, An: 14 Jac.

1. The Lord Hobart inclined strongly, that it should be amended by the instruction which was delivered to the Cursitor, but as to that Winch and I differed, because that this matter of Instruction is not a thing which ought to be informed by the party, as all matters of fact are: As whether it be a Vicaridge or a Church, or in debt for twenty pounds in the Instruction, and he make it thirty pounds, that shall be amen∣ded: But in this case it is matter of skill, and no difference between this case and Freemans case: And in debt if he had Instruction in the Debet and Detinet, and makes the Writ in the Detinet only, that shall not be amended.

2. The Lord Hobart inclined, that this recitall is but in the Pre∣amble, and may be omitted; to which we disagreed, he inclined that the Abbreviation was sufficient to supply all the word.

This Case being long debated, the Court Ex assensu ordered that the Defendants should give 80l. to the Plaintiff.

Mich. 10 Jac. Rot. 641. Poole versus Reynold.

IOhn Poole brought a Prohibition against Richard Reynold Farmer of the Moyety of the Rectory of Colleton,* 1.164 with the Chappell of Shute annexed to the said Rectory: And the Surmise was, that of time wherof memory, within the Parish of Colleton, there was a Rectory appropri∣ate, and the Cappell of Shute annexed therto, Et una Vicaria perpetua ejusdem Ecclesiae de Colleton dotat.

And wheras the said John Poole for six years last past, had occupied one house, a hundred acres of Land, twenty acres of Meadow, forty a∣cres of Pasture, called Shute Park, in Shute aforesaid, within the Parish of Colleton; which said Tenements were anciently a Park, and now dis-parked, which Park De temps d'out memory, &c. untill the dis-parking therof was used and filled with Deer, and severed from other Land, and was dis-parked. An. 10 Eliz. and converted into the said house, a hundred acres, &c. And that all the Occupyers of the said Park called Shute Park, de temps d'out memory, &c. untill the dis-parking, had paid to the Vicar there, his Farmer or Deputy one Buck of the Summer season, within that time upon request, and one Doe of the Winter season, within that time, &c. in discharge of all Tithes of the said Park, untill the dis-parking; and after the dis-par∣king in discharge of all Tithes of the said Tenements, which they had accepted for all the time aforesaid, untill the dis-parking and after, or otherwise agreed with the Vicar for them: And traversed this Pre∣scription, and found for the Plaintiff.

And now in Arrest of Iudgment it was moved by Henden, that this Prescription extends to the Land quatenus it is a Park, and that be∣ing destroyed, the Prescription is gone, for a Tenurs to cover a Wall or Thatch an house, if the party destroy or pull it down, the Tenure is extinct, 32 E 14: Avowry: And it shall be presumed that this was by grant when it was a Park, which is collected by the thing which is to be paid; and if it be to be paid or delivered out of the Park, then it is determined, vide Lutirels case, Coke lib: 4 Also this Prescription is a∣gainst the benefit of the Church, and shall not be enlarged; And the Wood which is sold out of the Park shall not be discharged, 14 Jac. in Conyers case in this Court;* 1.165 Prescription that the person had two a∣cres of Meadow given in discharge of all Tithes of Hay ground, viz. of all the Meadow in the Parish, it any arrable Land be converted in∣to Meadow, it extends not to discharge that, vide Lutirels case, Coke lib: 4 fol: 86. That an Alteration in prejudice of the party determine the Prescription; but vide the principall case there adjudged, that building of new Mills in the same place, and converting of Fulling Mills into Corn Mills, alter not the Prescription, vide Terringhams case, lib: 4. He which hath Common purchased part of the Land, all is extinct, for it is his own act: And he cited a case which was in this Court argued at Bar, and afterwards at Bench, between Cooper and Andrewes, Mich: 10 Jac: Rot: 1023. for the Park of Cowhurst, vide 32 E: 1 Fitz: avowry 240.5 E: 2. Fitz: annuity 44.20 E: 4.14.14 E: 4.4.

But this case was adjudged for the Plaintiff, Quod stet prohibitio, and that which is by the name of Park is for the Land, and is annexed to the Land by the name of Park, if the Prescription had been to pay a Buck or a Doe out of the Park, then it would alter the case: But it is generall, and had been paid also after the Park dis-parked, viz. the tenth of Eliz. And the case of Cowper and Andrewes, was the third shoulder of every Deer which is killled in the Park, and two shillings in money, and that case was never adjudged.

Hil. 10 Jac. Meredith versus Bonill.

* 1.166HUgh Meredith a Iustice of Peace in the County of Monmouth, brought an action upon the case against Bonill,* 1.167 for these words, I will have him hanged for robbing on the high way, and for taking from a man five pounds and an Horse. After Verdict for the Plaintiff, it was moved in Arrest of Iudgment, that the words were not actiona∣ble, for they are not Affirmative or Positive, but a supposition only; as if he had said,* 1.168 I will indite him for such a matter: it was vouched to be adjudged 51 Eliz. in Nowels case, that to say of an Attorna••••. That he was Cooped for forging Writs maintain an action: And 14 Eliz. He is infected of the Robbery, and he smelleth of the Robbary, adjudged actionable.

In balls case, There is never a Purse cut in Northamptonshire but Ball hath a part of it, will not bear action: But the Court would not declare their opinion, Quia sub spe Concordiae.

Griggs Case.

GRigg which is the Examiner at Chester, preferred there this Bill in the Chancery, vocat. the Exchequer,* 1.169 against one which inha∣bite within the same County, and another which inhabite in London. being executors to one, to whom the said Grigg was indebted by Obli∣gation (which Obligation was put in suit in the Court of Common Pleas, and there proceed to processe before the Bill exhibited) and the Bill concern equity of an Agreement, that the Testator had pro∣mised, that one Robert Grigg should assign a lease of Tithes to the Plaintiff in consideration of his entry into the said Obligation; and if he could not procure it, that then the Obligation should not be preju∣diciall to him; and he which was distributing in Chester answered therto: And an Order was made by Sir Thomas Ireland, Vice-Cham∣berlain, that Processe should be awarded to him which dwelleth in London; And an Inquisition was granted to stay the proceedings at Common Law: And afterwards upon the motion of Serjeant Hit∣char••, Sir Thomas Ireland was in Court, and shew all that he could to maintain the Iurisdiction, viz. That the Contract was made in the County Palatine, and that the priviledge pursued the Plaintiff; and ipse qui est reus, non potest eligere, &c. Yet it was resembled to ancient Demesn and Guildable: And by Lord Hobart, he which inhabit at Dove•• by this way, may be inforced to come and answer to a Bill in Chester, which would be infinite trouble, and the matter is transitory: And it was resolved, that the Court of Chester had not power in this case, but it belonged to the Chancery of England.

And a Prohibition was granted.

Hil. 20 Jac.

ONe case was in the Kings Bench, viz.* 1.170 Baron and Feme brought in action of Trespasse Quare clausum fregit,* 1.171 and for Battery of the Feme, the Defendant pleaded a License to enter into the Close made by the Baron; and not guilty as to the Battery. And the Court was moved in Arrest of Iudgment, because the Husband and Writ could not ioyn for the weaking of the Close of the Baron, the Writ shall abate for all. But the Lord chief Iustice and Iustice Dodderidge were of opinion, that the Plaintiff should have Iudgment: And it seems that the Law is clear accordingly, vide 9 E: 4. 51. Trespasse by the Husband and Wife for the Battery of them both the Iury found so much for the Battery of the Husband; and so much for the Battery of the Wife, and so Damages assessed severally, because the Wife could not soon with the Husband in an action for the Battery of the Husband, for that part the Writ shall abate; and for the Battery of the Wife they shall recover for, for that they ought or joyn in an action, vide 46 E: 3. 3. Baron and Feme brought Trespasse for the Battery and Imprisonment of the Wife, and the Writ was ad damnum ipso∣rum, and yet good, vide 9 H: 7. in the case of Rescous, and 22 E: 4. 4. there is a good diversity when the Writ is falsified by the shewing of

the party himself; and when it is found by Verdict. And Iustice Haughton and Iustice Chamberlain were of opinion, that the Writ should abate; for it is apparent, that as to the Trespasse Quare clausum fregit, the Wife had no cause of action: But this case being debated at Serjeants Inn in Chancery Lane, at the Table, the Lord chief Ba∣ron was of opinion that Plaintiff should have Iudgment for that part, and he held the Writ good in part, and Reddenda singula singulie, Me••e∣nest issint, as it seems no more then in the case of 9 E: 4. for there the Writ shall avate for part. And if an action of forgery of Deeds be brought against two, for forging and publishing, and found that one for∣ged and the other published, the Plaintiff shall have Iudgment.

Howell versus Auger.

* 1.172IN an action of Trespasse brought by Noy Howell against Auger, for breaking of a house and five acres of Land in Fresham, upon Non Culp. pleaded, the Iury gave a speciall Verdict.

* 1.173Robert Howell seised of the Land in Question, and of other Land, by his Will in writing devised this Land to Dorothy his Wife for life, and devised this Land to Thomas Howell his younger Son, to him and his Heirs in Fee, under the Condition which shall be afterwards decla∣red: And the other Land was also devised to Dorothy for life, and to the Plaintiff and his Heirs in Fee, under the Condition hereafter limited: If Dorothy died before the Legacies paid, then he will that they shall be paid by Noy and Thomas his Sons, portion-like out of the Houses and Lands given them: And if either of my Sons dye before they enter, or before the Legacies paid, or before either of them enter; Then I will that the longer liver shall enjoy both parts to him and his Heirs: And if both dye before they enter, then his Executors or one of them to pay the Legacies, and to take the profits till they be paid, and a year after, and made Dorothy his Wife, and Christopher Roys his Executors, and died. Dorothy entred, the Plaintiff Noy by his Deed, In: 33 Eliz. in the life of Dorothy released to Thomas all his right, &c. with War∣ranty:* 1.174 Thomas by his Will devised the Land, for which the action is brought, to Agnes his Wife, and died in the life of Dorothy, and be∣fore Legacies paid Dorothy died, and Agnes entred and took to Hus∣band Henry Ayleyard, who leased to the Defendant, upon whom Noy entred, and the Defendant re-entred: And Si super totam Materiam, &c.

And this Case was well argued at Bar in two Terms; and the first question was, If this Devise of a Fes after a Limitation be good or not, much was said for it, and they relyed upon a case which was ad∣judged in the Kings Bench, between Pell and Brown, of such a limita∣ble Fee:* 1.175 And many Cases put that this operate as a future Devise Executory, as well as one may by his Will Devise, that if his Son and Heir dye before he marry, or before that he come to the age of font and twenty years, that then I. S. shall have the Land, and it shall be good, vide Dyer 33. Coke lib: 10.46. Lampets case.

But Tuesday the eleventh of February, the Lord Hobart by our di∣rection (because that we were streightned of time, and Howell was so importunate for Iustice, that we could not argue) delivered the opini∣on of the Court, that Iudgment should be given for the Defendant: And he declared, that as to the point of a Fee-simple, which he called the mounting of one Fee-simple upon another, we now declared no o∣pinion; But we all without difficulty resolved, that this release of Noy, be it a Condition or not, had discharged it: And as to him, it is an Interest used by the Devise, but not executed untill it happen: And therfore in Lampers case, there the Release discharged it, for there he had no Title executed, but vested and commenced, and so may have Noy Howell the Plaintiff in this case; and it is not like to an Heir in the life of the Father, for be is a stranger, and he hath no Title at all, and yet his Release with Warranty bars him; and here this Release is accompanied with Warranty, of which nothing was spoken: Also as to Noy it is a Condition according to the words of the Will, and therfore sans question that Noy had barred himself.

The Vacation after Hil. 20 Jac.

MEmorand. That on Munday the seventeenth of February, at Ser∣jeants Inn, upon the assembly of all the Iustices, to take consi∣deration upon the Statute of 35 Eliz. cap. 1. for the Abjuration of Secta∣ries; the Atturney-generall, and Serjeant Crew being there,* 1.176 after the perusall of the Statute, and the Continuances therof, it was first up∣on debate considered, whether this Statute was in force, or disconti∣nued, and upon the perusall of the Proviso in the Statute of Subsidy, and upon reasoning the matter, these Points were resolved.

1. If a Parliament be assembled, and divers Orders made,* 1.177 and a Writ of Error brought, and the Record delivered to the higher hou∣se, and divers Bills agreed, but no Bills signed: That this is but a Convention, and no Parliament, or Session, as it was An. 12 Jac. in which (as it was affirmed by them which had seen the Roll) it is en∣tred that it is not any Session or Parliament, because that no Bill was signed, vide. 33 H: 6 Brook, Parliament 86. every Session in which the King signes Bills is a Parliament.

2. It was agreed, that if divers Statutes be continued untill the next Parliament, or next Session; and there is a Parliament or a Ses∣sion, and nothing done therin as to continuance, all the said Statutes are discontinued, & Beriatim, Jones, Chamberlain, Hutton, Denham, Haughton, Dodderidge, Winch and Bromley declared their opinions, that this Statute is discontinued: And that the Statute of Subsidy is a Parliament, and that every Parliament is a Session, but not e con∣verso, for one Parliament may have divers Sessions, as the Parlia∣ment 1 Jac: had four, and ended An: 7 Jac. vide 33 H: 6. Br. Parliament 86. And that this Proviso is not to any other purpose, but to continue their proceedings in the same Estate, as if this Act had not been made; and if this Proviso had not been, then this Statute had been disconti∣nued

by this act of Subsidy, but when this ends and is determined, then is the Session ended, then it is a Session scilicet a Parliament, which ought to be pleaded, at the Parliament holden, &c. and all the Commissions of Subsidy are accordingly; and the Proviso call it a Session: Then this being done, the Lord chief Baron did not deliver any opinion, for he said, that he had not considered the Statute; and afterward it was desired that the Lords would deliver their opinions, and therupon the Lord Hobart declared his opinion accordingly; That it seemed to him that it was a Session, and that it was not safe to meddle with such Law, and that he would never refuse to declare his opinion with his Brethren: After the Lord chiefe Iustice Ley made a long discourse, concerning the purpose and intent of Parlia∣ment, scilicet. That it was not their purpose to destroy so good Lawes, and therfore it was not any such Session as was within the intent of the preceding Parliament, which was, that these should de∣termine when it is a Parliament or Session, in which good Lawes are made.

And Doderidge said, that it was fit to see the Commission, and that that which hath been said, was not to bind any one, but every one spoke what then he was advised of, and peradventure might change upon better consideration. And afterwards upon Tuesday on an As∣sembly of the two chief Iustices, the chief Baron, Iustice Haughton, Baron Denham, Hutton, Chamberlain, and Jones, the Attorney-gene∣rall brought the Commission de 12 El. June 1. and that had these words, Pro eo quod nullus Regalis Assensus, nec responsio per nos praestat. fuit, nullum Parliamentum, nec aliqua Sessio Parliamenti lata. aut tent. fu∣it, They have power to adjourn this Parliament thus begun: And the Commission to dissolve this Parliament, 38. Feb. An. 19 Jac. had the same words, saving that he recite, that he had given his Royall assent to an act of Subsidy, by which was intended that it should not be a Ses∣sion: And upon view of the Commission, the Lord chief Iustice mo∣ved that the King was mistaken in this, that he had given power to dissolve this Parliament, which had not any Session, and if it be a Ses∣sion, then he had no power to dissolve it, and then it is, as it were, a recesse; and a Parliament cannot be discontinued, or dissolved but by matter of Record, and that by the King alone; and if the Parliament yet continue, then this Statute also continue during the Parliament by the Proviso: but that would not serve, for first, it is against the in∣tent of the King, and against his Proclamation: And also the case is truly put in the Commission, as to the matter in fact, and he is not mis-informed, but mistaken in the Law, and then the Commission for the dissolving is good, semblable to the Lord Shandoi's Case, and other Cases, vide in Cholmleys case: But because that all the Iud∣ges were not at this Conference, therfore it was deferred untill the next Term; and in the interim, the Grand Secretary and the Attor∣ney-generall were to inform the King that the Statute is obscure, and had not been put in ure, and that we could not agree.

Mich. 20 Jac. Rot. 2805. Bawtry versus Skarlet.

Sussex.

JOhn Bawtry Clerk,* 1.178 brought an action upon the case against Benja∣men Skarlet, one of the Attorneys of this Court by Bill, and count,* 1.179 that wheras one William Carter, Trin. 20 Jac. brought an action of debt against the now Plaintiff, upon an Obligation of a hundred and twenty pounds, to which the now Plaintiff appeared by his Attorney, and re∣quired a Declaration, and the now Defendant on the part of the said William Carter his Master gave the said Declaration, and required the now Plaintiff to confesse the action; and pendente Pl. he the now Defendant in consideration that the Plaintiff would give order to his Attorney to confesse the action, and to suffer the said Defendant to have Iudgment in the said Plea, for the said William Carter his Master, as∣sumed to the Plaintiff, that no Iudgment should be entred, untill af∣ter Crast. Annunciat. And that no execution shall be sued out untill after the end of Michaelmas Term next, and shew the performance therof by him, and the breach of the Defendant: And after Verdict it was mo∣ved that it is no sufficient consideration, and that was impossible for him to perform, that Iudgment should not be entred in the Term, in which Iudgment is given, but that is in the discretion of the Court; and afterwards Iudgment was given for the Plaintiff.

Pach. 19 Jac. Rot. 3014. 21 Jac. Jennings versus Pitman.

RIchard Jennings brought an action of Covenant against George Pitman, upon an Indenture of an Apprentiship,* 1.180 by which the Defendant had put himself to be an Apprentice to the Plaintiff in Ips∣wich, to the Trade of a Linnen Draper; and there were divers clau∣ses in the Indenture, according to the usuall form, and assigne for breach, the wasting of severall summe of money.

The Defendant pleaded the Statute of 5 Eliz. by which it is enacted, That it is not lawfull for any one inhabiting in any City or Towne Corporate, using the Trade of a Merchant over the Sea, Mercer, Pannary, Goldsmith, Iron-monger, Imbroyderer, or Clothier to take any Apprentice to be instructed in any of these Trades, if it be not his Son, or that the Father or Mother of such Apprentice, had at the time of the taking of him, Lands, Tenements, or Hereditaments, of Inhe∣ritance or Freehold, of forty shillings per annum, to be certified by three Iustices of Peace, under their hands and Seals where the Land lies, to the Mayor, Bayliffs, or other head Officer of the City or Town Corporate, and to be inrolled, entred, and recorded there, and pleaded the clause of the Statute which makes Obligations and Cove∣nants void, which are taken against it. And averred that Ipswich was a Town Corporate at the time of the making of the Statute.

The Plaintiff replyed, that his Father had at that time when he was bound, Lands and Tenements in great Bealing, viz. ten acres, to the Value of forty shillings per annum.

The Defendant by Rejoynder offer to joyn Issue, that his Father had not Lands, &c. wherupon the Plaintiff demurred.

And the question was, If this part of the Statute, To be certified by the Justices, &c. be such an essentiall part therof, that the Covenant be void without it: It was agreed, that it had not been put in use after the Statute; but it seems that it is Essentiall, and it ought to be so, at the time when he is put to be an Apprentice, but it may be enrolled afterwards, for the Statute in another part provides a penalty for the not Inrolling: Like to the Case upon the Statute of 18 Eliz. That they which claim any Estate of them which were Attainted in the Re∣bellion, they brought their Conveyances to the Exchequer to be inrol∣led within one year, if they bring and deliver these Conveyances, though they be not inrolled, yet they have performed as much as was in them: And if the Certificate be not at the time when the party is put to be an Apprentice, the Statute was to no purpose.

If this Bar be good, then the Replication is a departure, and the Re∣joynder also, and the Bar being good, Iudgment shall be given against the Plaintiff, but if the Bar be not good, then for the Plaintiff, for the Count contains matter certain.

But the Court moved, whether this Covenant lay against an In∣sant, for although it is by the Statute provided, that he shall be bound to serve as a man of full age, yet that makes not the Covenants good, and it is like to a Custom, which shall be taken strictly.

Trin 20 Jac.

This Case between Jennings and Pitman was moved this Term; And the Lord Hobart was of opinion, that this Statute (being that it appears that he was within age, scil. sixteen years) will not bind him to any Covenants which are not implyed in the Indenture of serving: For the doubt was, whether an Infant was an Apprentice out of Lon∣don, though that he put himself to serve: And the only matter which binds him in this Statute, is, that he shall be bound to serve, when he is bound by Indenture, being within age, as well as if he were of full age; and if the Covenant be only a Covenant to serve, no Covenant lies for Imbeziling of Goods: And if the Covenant be to serve him faithfully and diligently, that shall not bind him upon this Covenant. And I was of the same opinion, for it is only made good as to the ser∣ving; and there are many Covenants and Clauses besides in this In∣denture, which bind him not; As not to play at unlawfull Games, &c. And a Custom, that an Infant at such an age may sell his Land, shall be taken strictly, viz. that he cannot give it, &c. But my Brother Winch was of opinion, that it was a thing incident, and a quasi Consequent, viz. That if he shall be bound to serve, by consequence he shall be bound to serve faithfully and truly. He resembled it to the case of a Fine le∣vied by an Infant, and not reversed during his ••onage, that shall bind him; and by consequence the Indenture which leads the uses of the Fine, and when the Law enables to any thing, that which is incident, and without which the other thing cannot be, is implyed.

Trin. 19 Jac. Rot. 1734. Blemmer Hasset versus Humberstone.

Norf.

JN an Ejectione firmae brought by Ralph Blemmerhasset against Wil∣liam Humberstone for Land in Pucklethorp,* 1.181 upon a Lease made by John B. upon a speciall Verdict found, it was resoved,* 1.182 that when a Co∣pyholder bargain and sell his Copyhold to the Lord of a Mannor, which hath the Mannor in Lease for years, that therby the Copyhold Estate is extinguished: And the Lord Hobart said, that if a Copyholder come into Court, and saies, that he is weary of his Copyhold, and request the Lord to take it, that is a Surrender; for between the Lord and the Tenant, a Conveyance shall not need to be according to the Custome, for the Copyholder hath no other use of the Custome, but only to con∣vey the Land to another, vide Coke lib. 4. That a Release by him which hath Right to a Copyhold, to one which is admitted Copyholder, extin∣guisheth the Right of the Copyhold by Deed: And if a Copyholder re∣lease to the Lord, that extinguisheth the Copyhold, although it be contra∣ry to the nature of a Release to give a possession. It was agreed here that this Copyhold is not extinct, but the Lord (which is Lessee for years) Dominus pro tempore, may grant it by Copy de novo.

Mich. 21 Jac. Aris versus Higgins.

ARis brought an action upon the case against Higgins for saying these words, He is a Theef, and hath stol•• my Corn,* 1.183 and made me no sa∣tisfaction: And it was found for the Plaintiff, and afterwards moved in Arrest of Iudgment, that these words were not actionable, for Ver∣ba ambigua in mitiori sensu sunt accipienda: And therfore Coke. lib: 4. fol: 19. Thou art a Theef, for thou hast stoln Apples out of my Or∣chard, or thou hast robbed my Hop gound; the latter words qualifie the generality of the former; Also an Innuendo will not make either the person or the matter certain, Coke lib: 4. fol: 10. Barham did burn my Burn, Innuendo a Barn with Corn, not actionable; and that he had not satisfaction, that proves that it was for Corn growing, for other∣wise if it were Felony, the party shall not have satisfaction: But Iu∣stice Winch was of opinion, that the action lay, and that the words, He is a Theef, he hath stoln my Corn, are both actionable, and not like to Robbing my Orchard, or stealing my Apples in my Orchard, for Apples in an Orchard are commonly upon the Trees: And as to the words, Thou hast made me no satisfaction, these do not qualifie the former words, Thou art a Theef, and hast stoln a bundle of Fitches, adjudged actionable: Iustice Jones was of the same opinion, for stealing of his Corn shall be intended of Corn severed, for otherwise it is acres of Corn, or Corn growing. Serjeant Hobart was of opinion, that the words shall be intended in mitiori sensu: And we all agreed, that that which qualifies or extenuates words, ought to be full and not ambigu∣ous.

Rud versus the Bishop of Lincoln.

* 1.184IN a Quare impedit brought by Edward Rud against the Bishop of Lincoln, Lord keeper, Drury and Stubbin, for the Church of Dack∣worth, upon Evidence at Bar, these Points were resolved in the Court.

* 1.1851. When one usurps upon a Lease for years, that this Usurpation gains the Fee, and puts the very Patron out of possession; And though by the Statute of Westminster 2. cap. 5. he in reversion after the Lease may have a Quare Impedit when the Church is void, or may present, and if he present, and his Clerk be admitted and inducted, that then he is remitted, yet untill it be recovered, or his Clerk be in, the Usurper hath the Fee, and against him lies the Writ of Right, and that descends to his Heirs, and his Wife shall be endowed.

2. When the King present one by Laps, not having any Title of Laps, and a recovery is had against him in a Quare Impedit by one which had no Title: If this gain the Patronage; And it is clear the King had no Title to present; and although he which comes in by such Laps, is not Incumbent, nor gains the Patronage, yet he is In∣cumbent as to all Ecclesiasticall matters, to have Offerings, Tithes, &c. for it is only as to the rightfull Patronage, no gaining of the Patronage, but he may present, vide Greens case, Coke lib. 6. fol. 29.

3: It was resolved by the Court, that when one recover in a Quare Impedit, although that no Writ be awarded to the Bishop, yet if up∣on non presentment the Bishop will admit and institute his Clerk, and he is Inducted: And that is good, as wel as a man may enter without a Writ of Habere factas seisinam after recovery, so may the Patron which hath recovered in a Quare Impedit present, and that being accepted, and Institution and Induction pursuing therupon, it is good.

4. Also, whore the Issue was, whether the Church was void at the time of the presentment of Palu or not; and it appears that the case was, that Thomas Rud after the Church was void by the death of Cle∣ment Rud, and after that one Taxall was presented by Laps and Admitted, Instituted, and Inducted where the King had not Title, the said Thomas Rud having good Title to present, made a writing of presentation of the said Paul, and after (be it then exhibited to the Bishop, or no) The said Thomas Rud brought a Quare Impedit, and recovered, and afterwards this Presentation is exhibited to the Bishop, and he admit, institute, and makes a Mandate for Induction, which also is afterward done accordingly. Now the Issue being, whether the Church was void at the time of the Presentation of Pain, the time of this Presen∣tation shall now be the time of exhibiting therof after the Judgment: And then as to Rud which had recovered against him, the Church was then void, for whensoever the Bishop had the Presentation exhibited, at that time he ought by the Law to admit, institute, and give a Mandate for Induction, the then Church is void: But after the Judgment the Bi∣shop ought to accept that, and admit and institute, Ergo at that time the Church was void, and that is to be the time of the Presentation.

5. When one having good Title to present, and an Incumbent by Usurpation is admitted, instituted, and inducted, and after that the Pa∣tron present, and the Bishop refuse, and after the Patron recover, and then he which had this Presentation exhibite it to the Bishop, this is now a good Presentation; and the Patron cannot revoke or give him a new Presentation, but if the Patron before the death of the Incumbent makes Letters of Presentation, that is void, because he had no Title to present.

Hil. 20 Jac. Rot. 1942. Pleydell versus Gosmoore.

Wilts.

EDmond Pleydell brought an action of Trespasse against Richard Gosmoore,* 1.186 and William G. for the taking and chasing of a Colt and fettering of him, with a Continuando as to the fettering.

The Defendant convey the Mannor of Sharston to Francis Earl of Hertford: And that the Earl, and all those whose Estates, &c. had the Estrayes which come within the said Mannor, 〈◊〉〈◊〉 that the Tithing-men for the time being, seised the Estrayes and proclaimed them at the next Market or Fair, &c. and kept them untill they be claimed or for∣feited: And that he was a Tithing-man, and seised this Colt as an Estray; and because this Colt was so feirce, &c. that he could not be kept in Pasture, he fettered him, and kept him in his Pasture within the Mannor, and that for the space of two weeks, and the Plain∣tiff having notice claimed him, and had him delivered, &c. The Plain∣tiff demurred generally.

Attho said, that he had not avorred that he continued feirce, &c. but at the time of taking was so: To this it was answered, That the Count chargeth not the Defendant absolutely with all the time, but Diversis diebus & vicibus: And also he justifie for two weeks, which is the same Trespasse: Then upon the matter the question is, if he which hath Estrayes or Waifes, if he seise an Estray qui est ferox, whether he may fetter such Estray.

It was agreed by the Court, that when an Estray comes within a Mannor and walk there, this is a Trespasse, and the party in whose Land the Estray is Damage-feasant, may chase him out of his ground.

Also it was agreed, that untill the Lord, or his Bayliff, or Tithing-man seise the Estray, that shall not be said an Estray; but when the Lord seise, than he hath the Commencement of a property therby, and he is chargable against all others for the Trespasse which this Estray doth; and if this Estray within the year estray out of the Mannor, the Lord may chase back the Estray, untill he be seised by another Lord which hath Estrays: But if he be seised by another Lord, then the first hath lost all his possibility of gaining the property, and the other Lord ought to proclaim it de novo.

It was moved, that if a Lord of a Mannor which hath Estrayes, and hath seised an Estray, suffer that Estray by negligent keeping to stray away, and never can be found again, the Owner may have an action upon the case of Trover and Conversion against the Lord, Quare vide

44 E: 14. there the Lord seised an Asse for an Estray, he to whom the property did belong came and challenged the Estray, the Lord may de∣tain him untill he tender sufficient recompence for the Pasture, vide purc. 20 H 7. 1. by Vavisor, and 39 E: 3. 3. That the Owner cannot take an Estray untill he tender recompence; likewise the Lord after seisin of the Estray, if he took him not Damage-seasant, may have Re∣plevin, and he ought to make him amends.

The Lord cannot work the Estray, but may keep him in his Sta∣ble: And if the Sheriff upon a Fieri facias fetter the Colt, and after the Defendant redeem him for money, he shall not have trespasse, vide 6 E: 3. 8. it is not alledged that the fettering was to any damage of the Estray, vide 22 Ass. 56.

Entred Pasch. 18 Jac. Rot. 650. Treherne versus Cleybrooke.

* 1.187IOhn Treherne brought an action of Debt against Cleybrooke, and count of a Lease made by John Treherne Grand-father to the Plain∣tiff, of Lands in S. Olives in Surrey, and intituled himself by the Will of the Grand-father, by which he devised the Lands to the Plaintiff in tail,* 1.188 the remainder over to Leonard. Vpon Nil debet pleaded, the Iu∣ry found specially, scilicet, the Devise of the Reversion in tail, the re∣mainder over to A. in tail, the remainder of one Moyety of the Land to one Daughter in tail, and the other Moyety to another, with Pro∣viso, that for the raising of a Stock for John Treherne the Grand-child, when he come to the age of one and twenty years, or if he dies, for the raising of a Stock for Leonard in like manner, he willed that Edward Griffin and Anne his Wife shall take the profits, and shall receive all the rent of the Land devised to John Treherne, to their own use, untill he come to the age of one and twenty years, upon Condition, and so as the said Edward Griffin and Anne shall within three months after the death of the Testator become bound to his Overseers in an Obliga∣tion, with such penalty as the said Overseers shall think fit to pay to the said John, or if he dye without Issue to the said Leonard, within three months after he come of age, such a summ, the Condition to be drawn and devised by his Overseers: And if Edward Griffin and his Wife refuse, then the Overseers should receive the Rent and Profits to their proper use: (But the Condition appoint not to whom the Over∣seers shall be bound.) And made Edward Griffing and William Iremon∣ger his Executors, and I. and others Supervisors, and died; and that within fourteen daies after the death of the Testator, the Will was read to the said Overseers: And that they did not devise or draw (with∣in the time appointed) any Obligation, nor tendred any within that time, and that notice therof was given to the Defendant, and that the Rent was demanded, and the Reversion claimed by the Plaintiff, sed utrum, &c.

Vpon the Argument of Serjeant Harris which argued for the Plain∣tiff, and vouched 21 H. 6. 6. That when one made Executors, and also Coadjutors, the Coadjutors are not Executors, and that it is a Condi∣tion precedent, vide 14 H: 8. 22. Wheelers case, 46 E: 3. 5. Truels case,

Coke lib: 5. 127. Palmers case, 4 E: 3. 39. 11 H: 4. 18. And because that in this case the said Edward Griffin and his Wife are to have benefit, they ought to require them to nominate the summ: But because it ap∣pears to the Court that this Action is founded upon a Contract in Law, therfore it ought to be brought in Surrey; as it was agreed in Ungle and Glovers case, An: 36 Eliz: vide Coke lib: 3. fol: 23. Nota, that the Iudgment is speciall for this cause, and no costs upon the Statute of 23 H: 8. for the Defendant, for the Statute saies, that upon a Contract made by the Plaintiff, the Defendant shall have costs, and yet upon this Statute if the Executor be non-suited, or Verdict given against him, he shall not pay costs,* 1.189 by common experience alwaies after the Statute; and yet he shall have costs if he recover. And in this case the Plaintiff shall have costs if he recover, and yet it seems upon this Iudgment the Defendant shall not have costs against him, and especi∣ally because that they are expresse words in the Statute, that the De∣fendant shall have costs after Non-suit, or lawfull tryall against the Plaintiff, and here is neither Non-suit nor lawfull tryall, vide Statute 4 Jac: cap. 3. seems to be full in all cases where the Plaintiff shall have his costs upon Non-suit, or when the Verdict passe against him, the Defendant shall have costs, yet it hath been taken that it shall be intended in actions of Debt upon the Contract of the Plaintiff him∣self, for Executors neither upon Verdict nor upon Non-suit shall pay any costs, because that their actions are brought upon Debts or Con∣tracts, not made between them and the Defendants, vide the Statute of Glocester, cap: 1. that where a man recover damages, there also he shall have costs.

Hickson versus Hickson.

HIckson Demandant in Dower against Hickson; They are at issue, the Tenant offer to be essoined upon the Venire facias, and for want of the Adjornment therof by the Demandant,* 1.190 the Tenant had procured a Non-suit, and yet the Demandant proceeds with the Is∣sue. And at the Nisi prius, the Tenant relying upon the Non-suit, it ap∣peared not by whom the Petit Cape is awarded.

And now upon motion by Serjeant Henden, who relyed upon the Non-suit, and that the Essoin was allowable by the Statute of West∣minster 2. post exitum habeat unicam Essoniam; but it was ruled, and the Prothonatories all said, that it had been the constant use, that no Essoins are allowed in Dower, which is festinum remedium, vide Stat. 12 E: 2. cap: 1. hath tolled the Essoin of the Service of the King in ma∣ny cases, and given to the Demandant in many cases power ad cal∣lumpniand. Essoniam: And the words of the Statute are, Non jacet in breve de dote, quia videtur deceptio & prorogatio juris, vide Dyer 324. There after the Issue joyned, Essoin at the day of the Venire facias, though no Venire facas be sued out, but only awarded upon the Roll.

Mich. 21 Jac. Linleys Case.

* 1.191AN Information was exhibited against Linley under Sheriff, to Sir Gny Palmes Sheriff of York, vpon the Statute 32 H: 6, and it was shewn, that he being under Sheriff, a Capias ad satisfaciendum was delivered to him, to Arrest one Francis Lancaster upon a Iudg∣ment for a hundred and three pounds: The Defendant Colore officii took of the Plaintiff thirty shillings for making of a Warrant upon this Writ, against the form of the Statute, wherby he hath forfeited forty pounds.

Vpon not guilty pleaded, and Verdict against the Defendant, it was alledged in arrest of Iudgment, that the making of a Warrant upon a Capias ad satisfaciendum, which is for Execution, is not within the Statute, because the Statute speaks first, of Fees to be taken upon the Arrest of the party, when he is bailed, viz. twenty pence to the Sheriff, and four pence to the Baily, then appoints that the Sheriff lets to Bail every one that is taken upon Bill or Plaint, besides them which are taken for execution, Outlawry, &c. and then comes the clause, That nothing shall be taken for making of any Precept, or Warrant, but four pence; and provision for the Obligation, Condi∣tion, and Fee, and that all Obligations taken by any Sheriff Colore officii, that these shall be void, and that for every offence committed a∣gainst the Statute, he shall forfeit forty pounds.

The Lord Hobart inclined, that this making of the Warrant upon the Capias ad satisfaciendum, and the taking of thirty shillings is with∣in this Statute; and he resembled it to Dive and Maninghams case in Plowden, where an Obligation taken of one in Execution is void by this Statute: vide, that the clause in this Statute for the Obligation is absolute, without any restraint, but that all obligations taken by colour of his Office, with any other Conditions are made void.

This taking of thirty shillings for making of a Warrant upon a Ca∣pias ad satisfaciendum is extortion at the Common Law, for which he may be indited, but whether it be within this Statute or no is doubt∣full.

Another Exception was taken to this Information; That it doth not appear by this, that this Writ of Capias was directed to the She∣riff of York, or to any other Sheriff: And then admitting this to be a Capias ad satisfaciendum directed to the Sheriff of Lincoln, and it is de∣livered by an ignorant hand to the Sheriff of York, to make a Precept therupon, and he makes a Precept, and takes thirty shillings, this is not within the Statute; also Colore officii will not serve, for it is generall, and it ought to be shewn that it was a Capias, and to whom it was directed: And although that all Processe should be generally di∣rected to the Sheriff, yet some may be to the Coroners, or some (by the mis-prision of the Clerks) may be omitted; as Jacobus Dei gratia &c. tibi precipimus, and say not, Vice-Comiti Eboracensi salutem. And an Information ought to be certain to all common intents, and it is like to an Indictment. And in an action upon the case against an At∣torney, because that he Corruptive and in deceit of the Plaintiff, and

in his name had acknowledged satisfaction to his damage, and saies not, wheras Revera non fuit satisfactus, that is not good.

And the Court was of opinion for this cause, that the Plaintiff should not have his Iudgment.

Bickner versus Wright.

AN action upon the case was brought by Richard Bickner against John Wright,* 1.192 for the making of a Cony-borough in damage of his Common; The Plaintiff prescribe to have Common omni tempore anni, and saies not Quolibet anno: And after Verdict adjudged good.

Trin. 22 Jac. Goldenham versus Some.

GGoldenham brought a Writ of Dower against John Some,* 1.193 who vouched the Heir of the Husband, who entred into the Warran∣ty, and said that he had no Assets: The Demandant had Iudgment for her Dower (because nothing is said to the contrary) against the Tenant, with a Cesset executio, untill the Warranty be determined: And the Tenant which vouched, when the tryall was at Assises made default, but it was said that it should be the default of the Vouchee, for he was dead before the Assises: And now it was moved that the De∣mandant might have execution. And by Henden it was said, that the Voucher is not determined, for he might vouch the Heir of the Vou∣chee: But it seemed that the Voucher was determined, and that he shall have the benefit of his Warranty (by Scire facias) out of the Iudgment; but the Court doubted if the Plaintiff shall have Iudg∣ment against the Vouchee conditionally (if he had Assets, if not, a∣gainst the Tenant) or absolutely, vide 3 H: 6. 17. Dyer 202. there it is conditionall, vide Dyer 256. there the Iudgment is against the Tenant upon Vouchee of the Heir in Ward to the King, and that presently, with a Cesset executio, vide 46 E: 3. 25. If the Vouchee be Counter-pleaded, the Demandant shall have Iudgment presently, vide 48 E: 3. 5. Br: Voucher 38. the Iudgment shall be against the Heir conditionally, which is vouched in Dower, vide 2 H: 4. 8. there upon the Voucher of the Heir which makes default upon the Summons, & sequatur suo pe∣riculo, the Iudgment is against the Heir conditionally, if not, against the Tenant, and so Iudgment against one not party to the Suit, and which never appeared: And in this case the Iudgment against the Tenant, with a Cesset executio may be good, because that it doth not appear by any of their Pleas, but that the Demandant is confessed to have her Dower, none of them say, that he is ready to render her Dower (as the Heir ought when he enter into the Warranty.)

This Term Serjeant Finch moved the case, and prayed Iudgment, for he said, the ancient Books were many for Iudgment conditionally; but some to the contrary, viz. when the Heir is vouched within the same County, and is within age, there Iudgment presently against

the Tenant, with a Cesset executio: And when the Heir enter into the Warranty, and is taken to render the Dower, there is Iudgment against the Heir, and that the Tenant shall hold in peace: But he said that Mich:* 1.194 38, & 39 Eliz. Rot. 1208. Mary Ashburnham brought Dow∣er against Skinner, who vouched the Heir of the Husband in the same County, who presently entred en le garranty, and said, that he had no Assets, there the Iudgment was given presently against the Tenant, with a Cesset executio: And after the Issue was tryed, and found that the Heir had not Assets, and the Wife had Execution, but it was said, that Error was brought therupon, yet the Feme continued the Posses∣sion.

Henden said, that the Tenant otherwise shall lose the benefit of his Warranty, vide 13 H: 4. Judgment 241.

The Court adjudged this case for the Demandant, upon view of the said President of 38, & 39 Eliz. And as this case is, the Demandant up∣on necessity ought to have Execution, because that the Tenant which ought to have the benefit of the Warranty made default: And if it was so that the Vouchee was dead, the Tenant shall not have any other Voucher, for the Dower ought not to suffer delay: And likewise when Iudgment is given against the Tenant, with a Cesset executio, all is one, as a conditionall Iudgment against the Tenant, for if As∣sets be found, then Quia compertum est, &c. with Iudgment against the Heir, and that the Tenant shall hold in peace.

It was objected, that Iudgment ought to be conditionally at first, and not to give one Iudgment against the Tenant, and afterwards if As∣sets be found, another Iudgment against the Heir; but that is no in∣convenience. Some say, that when such Iudgment is given against the Tenant, with a Cesset executio, there if Assets be found, the De∣mandant shall not have execution against the Heir, but against the Te∣nant, and he shall have ad valentiam. Quaere.

Potter versus Browne.

* 1.195NIcholas Potter brought an action upon the case against Browne for these words spoken of the Plaintiff, He is as arrant a Theef as a∣ny is in England, and he broke up the Plummers Chest with other mens Tools, which stood in my Lord of Suffolks house, and took money out of it. The Defendant pleaded Not guilty, and Verdict for the Plain∣tiff: And upon the motion of Henden to Arrest, and Richardson to have Iudgment; The Court resolved that the Plaintiff should not have Iudgment. The first reason is, because that there is not any af∣firmative directly, that he is a Theef, but as arrant a Theef as any is in England, And avers not that there is any Theef in England: And the Law will not presume any thing that is evill, Iniquum in lege non presumitur. And as Lacies case was, He is as great a Theef as any is in Warwick Goal, He ought to aver that there was a Theef there at the time of the speaking of the words: And it is the same reason in this case.

Then the latter words are ambiguous, and admit of a double inter∣pretation, and the better shall be taken.

Querens nil capiat per breve.

Mich. 22 Jac. Methell versus Peck.

MEthell brought an action upon the Case against Peck, and count,* 1.196 that the Defendant in consideration that the Plaintiff had paid to one Playford forty pounds, to the use of the Defendant,* 1.197 and by his appointment he assured upon request to deliver an Obligation, in which he and another should be obliged to the Plaintiff in a hundred pounds. And that the Defendant Licet saepius postea requisitus, did not deliver the said Obligation; upon Non assumpsit pleaded, Verdict for the Plaintiff: And it was moved in Arrest of Iudgment by Hit∣charn, that the Plaintiff had not alledged any sufficient request, by shewing such a day, and such a place, which is issuable: And being collaterall matter, the request is part of the substance of the action; But where it is upon Debt or Contract, and not severed from the duty, then a Licet saepius requisitus is sufficient.

But the Court were of opinion that the Plaintiff shall have Iudg∣ment; and yet they agreed the diversity, when a Request shall be al∣ledged as part of the thing to be performed, and when it is but im∣plyed in the Debt: For when it is collaterall, there it ought to be alledged, and for the time it is sufficient, viz. Postea, but the place of the Request is omitted: And if Issue had been tendred therupon, it might be supplyed afterwards where it shall be tryed, where the a∣ction was brought; And Non assumpsit allowes the request; as if the Defendant had pleaded concord and satisfaction, the Request is not to be proved in Evidence, vide 10 H: 7. 16.

But it is said, that this Judgment was reversed in the Kings Bench, because that the Request be∣ing upon Collaterall matter, which was the cause of the Action, it is materiall.

Mich. 22 Jac.

* 1.198AN Ejectione firmae brought, and counted upon a Lease at Hayle∣sam, of Tenements there: The Defendant pleads, that Hayle∣sam, ubi tenementa praedicta jacent, is within the Cinque-Ports, Ubi breve Domini Regis non currit, and plead to the Iurisdiction. The Plaintiff reply,* 1.199 that the Tenements are in the County of Lancaster, absque hoc, that the Town of Haylesam is within the Cinque-Ports, wherupon the Defendant demur, and adjudged no cause of demurrer. For Haylesam is all Haylesam, and the Court will not intend any Fra∣ctions in the Town, viz. that part shall be in the Cinque-Ports, and part without (as it was affirmed the truth was) but that ought to come upon the shewing of the Defendant an his Bar, vide 50 E: 3. 5. Sir Wil∣liam Ellinghams case.

Defend. respond. oust.

Notes

• * 1.1

  Ejectione suma. A Conve••∣ance deliver∣ed to be enrol∣led, and yet not in••••lled, shall be ac∣counted a Record.
• * 1.2

  Words.
• * 1.3

  Request, where it shall not be alled∣ged.
• * 1.4

  Baker and Hall.
• * 1.5

  Doughties case.
• * 1.6

  Assise.
• * 1.7

  Assize of Dar∣rein present∣ment, abate by a Quare ••••∣pedit.
• * 1.8

  Bedford versus the Bishop of Exeter.
• * 1.9

  Wigorn. Replevin. Where the Lord shal lose his Heriot when the Te∣nant have not any Beasts.
• * 1.10

  Goldsbo∣rough.
• * 1.11

  De••. 1. By lawes.
• * 1.12

  London. Debt. The Visn of a Town within a Parish.
• * 1.13

  Candish and Savill.
• * 1.14

  Brownlow. Dors. Wast.
• * 1.15

  Case. Welsh words.
• * 1.16

  Oxon.
• * 1.17

  Debt.
• * 1.18

  Arbitrement of all Action untill the day of the Awa••••.
• * 1.19

  Newby and Sav.
• * 1.20

  Browns case.
• * 1.21

  Case.
• * 1.22

  Trover and Conversion is justified with∣out confessing the Conversi∣on.
• * 1.23

  H. 6. 35./8.
• * 1.24

  Trespasse.
• * 1.25

  Prescription for a Way, and no place to which, &c. Is∣sue joyned up∣on the Pre∣scription.
• * 1.26

  Case.
• * 1.27

  Action upon the Case a¦gainst one fo••¦giving evi∣dence.
• * 1.28

  Debt.
• * 1.29

  Debt for mo∣ney returned levied by the Sheriff.
• * 1.30

  Case.
• * 1.31

  Words.
• * 1.32

  Replevin.
• * 1.33

  Rent tendered at the day.
• * 1.34

  Brownl••w••
• * 1.35

  Replevin.
• * 1.36

  In Replevin, one makes Conusance & derive his E∣state from one as Cosin and Heir, and shews not how.
• * 1.37

  Sheriff ought to deliver the Moyety by meets and bounds.
• * 1.38

  Case.
• * 1.39

  Costs upon Non-suit where the Plaintiff hath no cause of a∣ction.
• * 1.40

  Action brought by the Commit∣tee of a Luna∣tick which is a Copyholder.
• * 1.41

  Brownlow.
• * 1.42

  Case.
• * 1.43

  Where inter-marriage re∣lease a pro∣mise made by the Husband to the Wife before marri¦age.
• * 1.44

  Belcher and Hudson.
• * 1.45

  Where a wo¦man may en∣ter in and bring an acti∣on t•••• be•••••• Franck bank before admit∣tance.
• * 1.46

  Case.
• * 1.47

  Words.
• * 1.48

  Brownlow.
• * 1.49

  Wast.
• * 1.50

  Wast in cut∣ting of wood to make Cole mines.
• * 1.51

  Burglary.
• * 1.52

  Matter of Re∣cord tryed by the Country.
• * 1.53

  How Priso∣ners which are attainted of Treason, & set at large, shall be brought to ex∣ecution.
• * 1.54

  Lineall War∣ranty.
• * 1.55

  Costs shal not be allowed upon a non-suit in an acti∣on brought upon the Sta∣tute 5 Eliz. of Perjury.
• * 1.56

  Prohibition:
• * 1.57

  Replevin.
• * 1.58

  Demand not necessary in an Avowry for a Rent-charge.
• * 1.59

  Bosdens case.
• * 1.60

  Copplestone & Langford.
• * 1.61

  Insufficient return on a Writ in Quare Impedit to the Arch bishop.
• * 1.62

  Challenge.
• * 1.63

  Bedforne and Dandy.
• * 1.64

  Craddock and Wenlock.
• * 1.65

  Debt.
• * 1.66

  Severall De∣fendants in Debt upon a joynt Con∣tract may plead severall plea••.
• * 1.67

  Sabud versus R••w. ••. Trin. 26 Eliz Rot. 821.
• * 1.68

  Pe••iam & T.P. H.P & I.P.
• * 1.69

  Fleet and Har∣rison.
• * 1.70

  Case.
• * 1.71

  Ven. fat. de d••∣versis villis.
• * 1.72

  Case.
• * 1.73

  In case upon Assumpsit a∣gainst Execu∣tors, it is not necessary to al∣ledge Assets.
• * 1.74

  Quare impedit.
• * 1.75

  View.
• * 1.76

  Dower.
• * 1.77

  Essoin though the Writ be not returned.
• * 1.78

  Case.
• * 1.79

  Words.
• * 1.80

  Debt.
• * 1.81

  Arbitrement,
• * 1.82

  Nichols and Grandy.
• * 1.83

  The Custome of London to give security for the pay∣ment of the Portions of Orphans, and upon refusall the Debters are to be com∣mitted.
• * 1.84

  Debt.
• * 1.85

  To what in∣tents a man shall be said Executor be∣fore he prove the Will.
• * 1.86

  Quare impedit.
• * 1.87

  Tryall where no such Town is plea∣ded.
• * 1.88

  Scire facias.
• * 1.89

  Scire facias against a Sheriff to have executi∣on against him of money returned levi∣ed by him.
• * 1.90

  Replevin. Annuity for life to com∣mence after 8. years menti∣oned in the Will, where there is no mention made therof.
• * 1.91

  Annuity.
• * 1.92

  A grant of an Annuity out of the profits of Allome.
• * 1.93

  Burglary.
• * 1.94

  Case.
• * 1.95

  Words.
• * 1.96

  Case.
• * 1.97

  Case. Assumpsit lies not for Rent.
• * 1.98

  Albanies. case.
• * 1.99

  Covenant Iudment a∣gainst Execu∣tors for Covenant broken by them, shall be De bonis testa∣toris. Iohnson and Barker.
• * 1.100

  Costs against an Informer.
• * 1.101

  Keldridges case.
• * 1.102

  Debt.
• * 1.103

  A Devise to a Feme of a term upon condition.
• * 1.104

  Scire facias. Sci. fac. by the Baron and Feme, the death of one of them shall abate it.
• * 1.105

  How the di∣stribution of the Estate of a Bankrupt shall be.
• * 1.106

  Case.
• * 1.107

  Words.
• * 1.108

  Case. Consideration of an As••ur••p sit.
• * 1.109

  Case.
• * 1.110

  Ven. fac. upon prescription for a way in divers Town••.
• * 1.111

  Debt. A Condition not to be assi∣sting to ano∣ther, hinders him not to bring a Writ of Error joyntly with him.
• * 1.112

  Case. Words.
• * 1.113

  Quare Impedit. Error in Qua∣re Impedit.
• * 1.114

  Wilde and Woolfe. Mich. 33. & 3•• Eliz 230.
• * 1.115

  Stepney and Woolfe.
• * 1.116

  Replevin.
• * 1.117

  Demand of Rent with a Nomine poenae after Issue joyned upon other matter.
• * 1.118

  Statute-Mer∣chant without day of pay∣ment.
• * 1.119

  Trover and Conversion.
• * 1.120

  Bankrupt.
• * 1.121

  Writ of Right.
• * 1.122

  Essoin upon the return of an alias Sum∣mons.
• * 1.123

  Dower. Counter-plea to the View.
• * 1.124

  Case.
• * 1.125

  Words.
• * 1.126

  Wast.
• * 1.127

  Inquiry of da∣mages.
• * 1.128

  Ewer and Moyle.
• * 1.129

  Replevin.
• * 1.130

  Prescription to have Her∣bage.
• * 1.131

  Replevin.
• * 1.132

  Supersedeas up∣on Indempnita∣te nominis.
• * 1.133

  Case.
• * 1.134

  Words.
• * 1.135

  Case. Consideration of forbea∣rance.
• * 1.136

  Scire facias.
• * 1.137

  Bayle is dis∣charged where the Principall di∣ed before Ca∣pias awarded. Tadcaster a∣gainst Hollow∣ell. Timberley and Calverly.
• * 1.138

  Debt.
• * 1.139

  One bound to levy a Fine before such a day who shall do the first act.
• * 1.140

  Burnell and Brook.
• * 1.141

  Case.
• * 1.142

  Conspiracy.
• * 1.143

  Case.
• * 1.144

  Words▪
• * 1.145

  Second deli∣verance.
• * 1.146

  Avowry.
• * 1.147

  Dower.
• * 1.148

  Joynture which bars Dower.
• * 1.149

  Case,
• * 1.150

  Midlemore and Warlow.
• * 1.151

  Stanley and Buddens case.
• * 1.152

  Debt.
• * 1.153

  Obligation voided by the Statute 23 H. 8.
• * 1.154

  Extortion.
• * 1.155

  Debt. It is no plea for the Admi∣nistrator to say, the Inte∣state died out∣lawed. Young and Pi∣got.
• * 1.156

  Woolley versus Bradwell. Trin. 37 Eliz. Rot. 2954.
• * 1.157

  Covenant.
• * 1.158

  Grant of an Advowson pleaded with∣out alledging to be by deed, good if the is∣sue be taken upon collate∣rall matter.
• * 1.159

  Replevin. Avowry for Rent granted to the Father in see, without alledging that it was arreare after the death of the Father.
• * 1.160

  Case.
• * 1.161

  Assumpsit in consideration that the plain∣tiff (being an Hostler) would keep a Priso∣ner to save him harmlesse.
• * 1.162

  Debt. Hue and Cry.
• * 1.163

  Amendment of a false A∣breviation.
• * 1.164

  Prohibition. Prescription to have Deer out of a Park in discharge of all Tithes, and after the Park is dispar∣ked.
• * 1.165

  Conyers case.
• * 1.166

  Case.
• * 1.167

  Words.
• * 1.168

  Nowels case.
• * 1.169

  Prohibition ••i Chester.
• * 1.170

  Trespasse.
• * 1.171

  Trespasse by Baron and Feme, for breaking the Close of the Baron, & for the Battery of the Wife.
• * 1.172

  Trespasse.
• * 1.173

  Devise of a Fee after a Fee.
• * 1.174

  Release of Lands devised before they be vested.
• * 1.175

  Pell and Brown.
• * 1.176

  Resolutions upon the Sta∣tute of Eliz. cap. 1. concer∣ning Sectaries:
• * 1.177

  What shall be said a Session of Parliament
• * 1.178

  Case.
• * 1.179

  In considera∣tion that the Plaintiff will confesse Judg∣ment, the At∣torney pro∣mise to defer the entry of the Judgment, &c.
• * 1.180

  Covenant of an Apprenti∣ship.
• * 1.181

  Ejectione firmae.
• * 1.182

  A Copyhold may be extin∣guisht without an actuall sur∣render.
• * 1.183

  Case. Words.
• * 1.184

  Quare Impedit.
• * 1.185

  Quare Impedit.
• * 1.186

  Trespasse. Where one may fetter an Estray.
• * 1.187

  Debt.
• * 1.188

  Devise.
• * 1.189

  Where costs shall not be a∣gainst Execu∣tors.
• * 1.190

  Essoin shall not be allow∣ed in Dower.
• * 1.191

  An Informati∣on against an under Sheriff, for taking of 30 s for ma∣king of a War∣rant upon a Capias ad satis∣faciendum.
• * 1.192

  Case. Prescription.
• * 1.193

  Dower. Judgment in Dower upon Voucher.
• * 1.194

  Ashburnham a∣gainst Skinner.
• * 1.195

  Case. Words.
• * 1.196

  Case.
• * 1.197

  Where the re∣quest of a col∣laterall thing shall be alled∣ged.
• * 1.198

  Ejectione firmae.
• * 1.199

  Town shall be intended al the Town.