An exact abridgement in English, of the cases reported by Sr. Francis More Kt. serjeant at law with the resolution of the points in law therein by the judges / collected by William Hughes of Grayes-Inn Esq.

Pasch. 30. Eliz.

The Queen and Bishop of Lincolns Case. 389. Quare Imp. The Case was: The Bish. of Lincoln Patron and Ordinary collated to a Benefice in 8. Eliz. The Incumbent took ano∣ther Benefice without Qualification, by which the first was void: The Successor Bishop 18. Eliz. presented one E. but non constat, if by avoidance, death or resignation: E. being in, the Bishop was remo∣ved to Winchester. The Bishop that then was, certified that E. did not pay his Tenths, upon which the Church was void, and the Bishop collated I. S. to the Church. The Question was, if the Queen might now avoid the Incumbent, to have her presentment, which

accrued to her upon the avoidance of the first Incumbent, who took a second Benefice without Qualification. The Justices at the first doubted it, but afterwards this Term, it was adjudged for the Queen against the Bishop.

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

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

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

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

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

The Lady Greshams Case. 395. Sir Thomas Gresham seised in Fee of the Mannors of M. and C. in the County of N. 12. Eliz. levied a Fine thereof to the use of himself, and the Lady Ann his wife, To B. and C. with power of Revocation, that if Sir Thomas should pay 10. s. to B. and C. or the Heirs of B. then the same to be to the use of Sir Thomas and his Heirs. In 13. Eliz. he levied another Fine to the said Conusees of the Mannors of N. and F. to the same uses declared by another pair of Indentures, with the like payment of 10. s. B. dyed, Sir Thomas paid one Sum of 20. s. to C. in Revocation of the uses raised upon both the Fines; and after he raised divers uses and estates of divers Mannors holden in capite, without license of Alienation, and died. It was in this Case amongst other things Resolved, That the uses were not revoked, but that the revocation was void, because two several sums of 10. s. ought to have bin rendred, and not one sum of 20. s. for they were several Indentures, and several Mannors, and could not be satisfied with one Sum; for which cause all the Mannors came

to the Lady by Survivor, and that there was no Fine due to the Queen upon his alienation without License.

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

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

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

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

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

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

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

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

of the second: but otherwise if one who hath a Term deviseth his Term, with such a Remainder, and a difference taken between a de∣vise of the Term, and a devise of the Land.

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

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

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

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

is discharged of the Limitation. Vide Owens Rep. 8. the same Case.

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

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

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

Ognell and Pastons Case. 411. In Debt in the Exchequer; The Case was: W. and F. ac∣knowledged a Recognisance of 200. l. in the Chancery to the Plain∣tiff for payment of mony at a day to come, they failing, upon two

Scire facias issued, and nibil returned, a Levari fac. issued to the She∣riff of N. and afterwards a Capias ad satisfaciendum to the Defen∣dant, the Sheriff who arrested W. the said W. being then in his Cu∣stody upon an Indictment of Felony, who after upon his arraignment was found Guilty of the Felony, and afterwards he escaped, being let at large. The points were, First if a Capias did lie upon a Recogni∣sance in Chancery, Second if it did not lie, yet if it was void or voidable: Third if the Conviction of Felony had discharged the Execution: Resolved, That if the Chancery had consideration of the Cause, and they do award an Erroneous Process or Misaward a Capias, by which the party is taken in Execution, yet it is a law∣full Execution, and the Sheriff is chargeable with the Escape, and he is not to examine the Error of the Court in avoiding the Execu∣tion. Second that the Conviction of the Felony was no discharge of the parties Execution, and it was adjudged against the Defen∣dant.

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

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

B••rd and Adams Case. 414. In this Case, a Case of a Prohibition to stay a Suit in the Spiritual Court, for Tythes of the Rakings of Lands, after the Crop of corn was carried away: It was holden, That the prohibiti∣on would not lye, but that Tythes should be paid of Rakings: But vide 42. Eliz. in B. R. in Gree and Haales Case: It was adjudged that by the Custom of the Realm, Tythes should not be paid of Rakings.

Battey and Trevillions Case. 415. Replevin: The Defendant avowed, That I. and A. his Wife were seised in Fee in the right of his Wife, and devised the Land, in which to I. H and I. his Wife, with E. their Daughter for 60. years, rendring four Marks Rent. Afterwards 38. H. 8. I. and A.

his Wife levyed a Fine, and the Conusees rendred the Land to A. for Life, the remainder to Tho. their Son in tail, with remainder over. A. died, Tho. entred upon the Lessees, and made a Feoffment to I. D. and others to perform his Will, the Lessees reentred; Tho. 7. Eliz. by his Will ordained that his Feoffees should stand seised un∣till they had levied sufficient to pay his debts and Legacies, which were not payed, and therefore the Defendant as Bayliff to the Feoffees, made conusance, and as to the rest he avowed, for that Tho. was seised in Fee of the place in which &c. and 6 Eliz. devised the same to H. L. and M for Life, rendring 30. s. Rent, and afterwards entred upon the Leslees, and levyed a Fine thereof to the use of himself in Fee; and afterwards infeoffed thereof the first Feoffees to the use of his Will; the Lessees reentred, and he made his Will as above, and died, and for 3. l. rent for two years he made conusance as Bayliff to the surviving Feoffees: The Plantiff to the first Avowry said, that Tho. was seised in Tail by the render of the Fine, and the tail descended to H. his Son; and then E. one o•• the Lessees who sur∣vived to husband the Plaintiff, b••que hoc, that Tho. enfeoffed the Feof∣fees to such uses as the Defendant hath a ledged, and as to the other Conusance, the Plaintiff demurred in Law. The Jury found the seisin of A. and her Husband, and the Lessee for years to the three persons, and the Fine and Render to the seisin of Tho. and the Feoffment of Tho. to I. D. and others to perform his Will; and they found a Letter of Attorney to persons whereof the said I. H. one of the Lessees was one conjunctim & divisim, to enter in all the Premises, and take pos∣session, and deliver the same to the Feoffees or one of them; and that after Tho. made his Will as before, and that C. one of the At∣torneys to one of the Feoffees, and D. another of the Attorneys de∣livered seisin to another of the Feoffees. There were divers points in this Case; First, because the Jury have sound a Devise of Land and no Tenure; if the Justices could judge the Tenure to be Knight Service or Soccage: this point the Justices said they would not meddle with. Second point, admit the Land to be holden in Capite, and that the Land passed by the Will••; they held that but two parts of the Land passed by the Devise. 3dly. When he devised that his Feoffees should stand seised, and he had not Feof∣fees but he himself was in possession: the Justices held it was de∣vise of the Land it self. 4thly. They held where one of the Lessees made Livery as Attorney to the Lessor, that he did not thereby ex∣tinct or surrender the Term. 5thly. When an Authority is to four, conjunctim & divisim to execute Livery: that one might execute Li∣very in one part, and the other in another part. 6thly. They held when Tenant in tail of Lands in lease for years, makes a Feoffment,

and the Lessee reentred, it was a discontinuance. 7thly, They held when Tenant in Fee simple of a Reversion expectant upon Lease for years deviseth two parts of the Land, that no part of the Rent passeth. 8thly, In this Case, because the avowry is made for the whole Rent, and it appeareth he hath title but to two parts; It was holden he should not have a Return for any part. 9thly, They held when the Avowant makes title but to two parts of the Rent, and the Jury assesse damages for the whole Rent, that the Avowant could not have Judgment, unlesse he Released the damages. 10thly, When the Lessor entred upon his Lessee for life, and made a Feoffment, and the Lessee reentred, the Justices doubt, if the Rent was revived.

Keale and Carters Case. 416. False Imprisonment, the Defendant Justified; that he was Constable, and that the Plaintiff brought a Child of the age of 2. years and no more into the Church, and there left it, to the intent it might dye for want of sustenance, wherefore he Imprisoned him till he agreed to take away the Child; It was the opinion, that the Justification of the Defendant was good, because the Act of the Constable was but to prevent a felony, which he might do by vir∣tue of his Office.

Fenwick and Mitsorths Case. 417. The Case was, A. man seised of Lands in Fee, Levyed a Fine thereof to the use of Wife for life, the remainder to the use of his eldest Son and the Heirs males of his body; the remainder to the right Heirs of the Conusor: The Conusor made a Lease for 1000. years to B. the eldest Son dyeth without Issue having a daugh∣ter; the Conusor dyeth, the Wife after dyeth, the eldest Son Leaseth the Lands to the Plaintiff: It was adjudged in this Case, it was a Reversion and no Remainder, and this limitation to his right Heirs was meerely void.

Sir Moi••e Finch and Throgmortons Case. 418. The Case in effect was this, The Queen made a Lease for years, rendring rent with a Proviso, that if the rent be not paid at a day limited, that the Lease should cease, without making men∣tion that it should be paid at the Receit; and if it should cease be∣fore Office, was the Question: It was Resolved by Manwood Cheif Baron and all the Barons in the Exchequer, That ipso facto upon default of payment, the Lease was determined according to the pur∣port of the Contract, and that immediately without Office; For the Proviso shall be taken to be a limitation to determin the estate, and not a Condition to undo the estate, which cannot be deserted, but by an Office in the Case of the Queen.

Green and Edwards Case. 419. A Lease was made by a Man for 80. years if his Wife should so long live; and if she dye, that the Son should have the Land for the Residue of the Terme then to come; It was adjudged void as to the Son, for that there is no residue of a Terme which is before determined.

Hicks and Palingtons Case. 420. Complaint was in the Court of Request, for average of a Ship spoyled of certain goods shipped from Bristol to Galicia in Spaine: The goods were taken by a Pyrat by violence; It was decreed, Average should be paid, because the Merchants had assented to pay it after the Ship was robbed.

The Queen and Vaughans Case. 421. In a Quo Warranto, the using of Liberties, &c. the De∣fendant pleaded, That an Abbot was seised of Waifes and estrayes by prescription, and that he used and exrcised to have Catalla fellonum within 3. moneths before the suppression of the Abby, but did not shew by what Title, Grant or Charter; and so by the Statute of 32 H. 8. and by Patent de tot, talia, tanta & Consimilia Libertates, he concluded that eo Warranto, he claymed the Liberties; It was Resolved by the Justices, that he ought to shew the grant made to the Abbot, and also what estate the Abbot had in them; Because the Statute doth not revive other estate in the Liberty, but which came to the Crown by the dissolution of the Abby; But Resolved, that the Conclusion eo Warranto was good, because it shall be taken distributive, that he used those which might be appurrenant, as ap∣purtenant, and the other by the other title.

Smith and Vewes Case. 422. Debt upon mutuat as of 5l. 6s. 8d. and because the several summes in the Declaration did not amount to the sum in demand; the Judgment given in it was reversed.

Sherrot and Holloweyes Case. 423. Replevin. The Case was; a Feoffment was made by Inden∣ture, rendering 3 l. rent, which clause of distresse, and the Feof∣for Covenanted to make further assurance of the Land, the Feoffer levyed a Fine to the Feoffee who rendred 3 l. rent; It was Resolved he might avow for the first rent notwithstanding the Fine, and that the Remainder is not a grant of a new rent, but a Confirmation of the old rent.

Mead and Cheneys Case. 424. A recovery is had in Debt against an Administrator, and a Scire facias de bonis of the Intestate, upon which a Devastavit was returned; It was adjudged, that an Elegit lyeth de bonis propriis

of the Administrator, which he had the day of the Judgment.

Barton and Andrewes Case. 425. Note this Case was the very Case agreeing verbatim with Bennet and Halseys Case, which see before Sect. 387.