Reports of that learned and judicious clerk J. Gouldsborough, Esq. sometimes one of the protonotaries of the court of common pleas.: Or his collection of choice cases, and matters, agitated in all the courts at Westminster, in the latter yeares of the reign of Queen Elizabeth. With learned arguments at the barr, and on the bench, and the grave resolutions, and judgements, thereupon, of the Chief Justices, Anderson, and Popham, and the rest of the judges of those times. Never before published, and now printed by his original copy. With short notes in the margent, of the chief matters therein contained, with the yeare, terme, and number roll, of many of the cases. And two exact tables, viz. A briefer, of the names of the severall cases, with the nature of the actions on which they are founded, and a larger, of all the remarkable things contained in the whole book. By W. S. of the Inner Temple, Esq;

De Term. Hill. An▪ Reg. Eliz. xliii. (Book Hillary (43 Elizabeth I))

1.

WAlter Ascough prisoner in the Fleet,* 1.1 was brought to the Common place bar by hab••as corpus, to the intent to have him appear to an Originall in debt brought against him; And being demanded by Goldesburg Clark, whether he were the same party against whom the Originall was brought, confessed it, but denied to appear to the Action: Br••••ke•• Prothonotary said, the Court ought to record his appearance, con∣fessing himself to be the same person; but the whole Court said this was no appearance, whereby he was remanded to the Fleet; And Tam∣worth the Plaintif proceeded to the outlary against him.

2.

PRice brought an Action of Trover against Sir Walter Sands;* 1.2 And this was for finding of Corn. And the first point of the case was, That a man had a Lease in Reversion, and granted it to another by fraud, and his Grantee granted that over to Sir Walter Sands, bona fide. And if this Grant over bona fide being derived out of a Fraudu∣lent Estate shall be void, per the Statute of 27 Eliz. or not, was the question.

Harris Serjeant

It seemeth the Grant to Sir Walter Sands to be good; And not within the Statute of 27 Eliz. For 33 He••. 6. 28. If a man make a Feoffment in Fee by Collusion, to the intent to defraud the Lord of the Wardship; And after this Feoffee by Collu∣sion make a Feoffment over, bona fide, Now the Lord is without remedy, for the Collusion is gone. And in this case there is an igno∣rance in Sir Walter Sands, the which is not willfull, and for that it is not punishable:* 1.3 But if the other had taken the profits, so that the pur∣chaser might have notice, there it should be otherwise. The •• cause was, non constat whether the Grant were before the Statute of 27 Eliz. or not. For if it were before, then the party shall not answer the mean profits. Allso a third matter is, ten yeares of the Term was

granted for money; But when he granted the Residue of the Term and no Consideration expressed,* 1.4 then there shall be no, consideration in∣tended. And if there were no Consideration given, he is not holpen by the Statute: For that helpeth a Frandulent Conveyance against pur∣chasers for Consideration given or paid, Et non constat that any thing was paid by the Plaintif. Allso it appeareth that Sir VValter Sands was in possession at the making of the Statute. Allso here the party is charged with a speciall fraud; And the other saith, that it was made bona fide. And this is a good course of pleading without any Traverse, per 4 Ed. 4. 24.

3.

HUgh Hall brought an Action upon his case for words, and decla∣red, * 1.5 that where he himself was robbed of divers parcels of Cloth, per quendam ignotum; and made his integrity and indeavour to ap∣prehend the said thief, praedictns tamen defendens praemissorum non igna∣rus dixit de praefato Hugone, viz. Hugh Hall hath received three par∣cells of his Cloth again of the thief; And if I receive any hurt hence∣forth, I will charge him with it. And by Judgement of the Court the words are not actionable.

4.

THe Lady VVilloughby Wife to the late Sir Francis VVilloughby,* 1.6 su∣ed in the Chancery as Administratrix of her said Husband, a∣gainst Percivall Willoughby, which had maried one of the Daughters of the said Sir Francis; And the Defendant pleaded, that before any Administration commited to the said Plaintif, he himself put in a Caveat in the Spirituall Court, hanging which Caveat she hath attained these Letters of Administration,* 1.7 whereby the Defendant hath appealed, 〈◊〉〈◊〉 which appeal is not yet determined, for which he demanded Judgement if hanging this appeal the said Plaintif shall be received to sue in this Court as Administratrix. And it see∣med to Egerton then Lord Keeper of the great Seal, that the Defen∣dants plea is good to stay the suit untill the appeal be determined; But not to be dismissed out of the Court,* 1.8 no more than an excom∣munication. And he said there is difference between an appleal in Spirituall Law, and a Writ of Error in our Law: For by the pur∣chasing of a Writ of Error the Judgement is not impeached untill the Record be rehearsed; But the very bringing of an appeal is a suspensi∣on of the first Judgement in the Spirituall Court for the principall matter, but not for the costs, and for to prove that he cited 2 R. 2. Quare impedit 143. & vide 27 H. 6. Gaud. 118. &. 2 M. 105. & Dyer 7 Eliz. 240.

5.

IN the Chauncery a speciall Verdict was retorned upon an extent,* 1.9 And the case was this; that there was Tenant for li••e, the Remain∣der in Tail, and the Tenant in Remainder in Tail made a Statute Staple, and after granted his Remainder. And after the Tenant for life died,* 1.10 and the Grantee of the Remainder entered; And whether Execution shall be sued of this land upon the said Statute, insomuch that the said land was never in Demeasne in the hands of the Co∣••••so••, * 1.11 and so not extendable in his hands, was the question. And Sr. Thomas Egerton Lord Keeper of the great seal said, that before that time there had been a difference taken between a Remainder and a Reversion depending upon an estate for life: For to a Remainder are no services due nor incident, and for that it is termed Seck; But a Reversion hath services incident, and those may be extended, and by consequence the Reversion when it commeth in possession. B••t it seemed unto him that all was one, for one may charge a Remainder when it happeneth, aswell as a Reversion; and a Statute is in the na∣ture of a charge. Cook the Queenes Attourney said there was no que∣stion in the Case; for albeit there was some scruple made in 33 H. 8. B. 227. yet the Case is without question: for if he in the Remainder make a lease for yeares, to commence at a day to come; Yet if he grant o∣ver his Remainder, the Grantee shall hold that charged with his lease; And every Statute is a charge Executory. By which the said Lord Keeper awarded that there should be a liberate made to the Conusee, upon the retorn above.

6.

OVerton brought an action of Debt against Sydall.* 1.12 And the case was, that Prebendary made a lease for yeares rendring rent, and the Lessee died, and the Executors of the Lessee assigned over the Term, and the Successor of the Prebend brought an action of Debt against the Executors for rent due after that they had assigned the estate over, and the opinion of three Justices was that the action would not lye. But Popham the chief Justice held the contrary: For the Successor is privie to the Contract of the predecessor; And so the Executor to the contract of the Testator.

7.

SHerborn against Lewis,* 1.13 The case was that the Hospitall of Doning∣ton was founded by the name of Minister Dei pauperis domus de Donington;* 1.14 And they made a lease in English by these words, Mini∣ster

of the Almes-house of God of Donington besides Newbery. And whether there be such variance between the name of the Foundation, and this name by which the lease is made, to make the lease void, or not, is the question.

Cook Attourney generall seemeth that the misnomer in this case makes the lease void, for the place of the Foundation is misnamed, and the place is the most materiall thing in the Foundation that may be, and for that if that be mistaken all is void. And yet he agreed that small variances in such Corporations shall not hurt.* 1.15 For Almes∣houseand poor-house doth not make any materiall variance, for they are all one in substance. But it may be that this addition de juxta Newbery is of substance, For there may be two Doningtons, viz. the one by himself, and the other juxta Newbery, without averment that it is not another; also in the Foundation this word Dei hath rela∣tion to Minister, and pauperis shall go to domus, and that appeareth plainly by the Kings licence of creation, and then the Foundation that explaineth it, and the ordinances also, and if the Corporation be not according to the licence, then it is void, also it cannot be inten∣ded that this word (Minister) ••hall be referred to domus, for the words which give them auctority to elect one that he may be President above the others, and he may not precede the others, if he shall be a servant. And now to prove that a materiall difference, in 17 E. 3. Friars Carme∣lites would have purchased land, & for that they had no place of Foun∣dation they might not. And also the Dean and Chapiter of Chester made a lease, and this word (Cestria) was omitted, and for that it was adjudged void, and so here. Atkinson all co••tr. For here there is no misnomer of the Corporation, but an interposition of words one for another; And they ought to be reasonably construed, and howbe∣it they are placed one before another, yet they may be construed according to the Foundation, having a favourable construction, the which ought to be in every grant.

Gaudie

It seemeth that the lease is good, for there is no materi∣all variance, for variance in letter and not in substance shall not hurt, and here in substance they agree, as if one say that one is Bayly of I. S. of the Hundred of D. It may be properly said that he is Bay∣ly of I. S. So here if he be Minister pauperis Dei de Donington▪ he is the Minister of God. For if the house be the house of God, and he the Minister of that, then he is the Minister of God, and in the case of the Savoy-after judgement given in the Exchequer, Error was brought in the Exchequer chamber, according to the Statute of 31 E. 3. ca. 12. And there it was agreed by the Barons before all the Judges of England, that the lease was good, notwithstanding the mis∣nomer of the Foundation. And in some case variance in name of

the Corporation should never hurt, where such variance in name of Baptism shall hurt. And to prove that, he cited 11 H. 4. and also he said that the other variance juxta Newbery is not materiall, for in 9 E. 4. that warranteth it, and it may be Donington is juxta New∣bery.

Fenner

I am of the same opinion, but yet I will be advised.

Popham

I am resolved, and I think that the argument of my brother Gawdie had need to be well answered; and after in Termino Mich. 39. & 40. Eliz. this case was argued again, and it was said that in 24. Eliz. inter Wilgate & Hall, the case was, that the Dean and Chapiter of VVindsor were founded by the name of Decanus Reginae capella de VVindsor, And they made a lease by the name Decanus Regina capelle de VVindsor, and for that this word Reginae was added to the lease, which was not in the Foundation, therefore the lease was adjudged void.

Gawdie

It seemeth the lease is good, and that the variance shall not hurt, for we ought to make suck construction if we may, that the lease should be good, and for that 11 Eliz. 278. Incorporation per name de Dean & Chapter Ecclesiae cathedralis sanct••e & indivi∣due Trinitatis Carlill made a lease for yeares by name Decanus Eccle∣siae cathedralis sanctae Trinitatis in Carlill, et totum capitalium de Ec∣clesia praedicta, and the better opinion was that the lease was good, notwithstanding the variance, because it is not in substance of name, and 5 Ed. 4. 20. Obligation was made Abbati Monasterii de M•• extra mur•••• Eborum. And in debt brought the Writ was quod reddat Ab∣bati Monasterii de M. Ebor. leaving out these words extra muros, and holden good, notwithstanding the variance, and yet then the par∣ty might have had a new Writ; Et a fotiori in this case, for here he can never have a new lease, and if a lease agree in effect and Substance with the Foundation, albeit there be variance in words between the grant and the Foundation, yet the lease is good. As if one said that T. K. is Executor, of the Testament of I. S. It may be said that that T. K. is I. S. Executor, and in this case if it had been Minister Dei p••••peris domus Dei de Donington, there the Addition of this word Dei, after the word domus, shall never hurt. Fenner Justice said it should hurt, for it cannot be intended the same Corporation, and for that it is a materiall variance, for there are two Genitive cases, & the last of them may not be governed by the first Substantive, for in construction it may never be so construed. And when the King puts a name upon a Corporation, this name ought to be strictly observed: For they have no other capacity than by this name. And every Corporation consisteth of two parts,* 1.16 That is to say of Persons, and of the place of their Foundation, and here Minister Dei is the Person, and pauperis domus de D. is the Foundation; by which, when part of the name of the Person is omitted, viz. this word Dei, and added to the Foundation, there is a materiall variance. Clynch said the

Lease was good, for sayd he the Minister of God of the poor house of D. and the Minister of Gods poor house of D. are all one; for when our Saviour Christ came to Jerusalem, and there saw the buy∣ing in the Temple, he sayd to the buyers, you have made the house of God the den of Theeves; for the house of God is the place where God is served.

Popham contra

For if the Corporation had been Minister domus Dei de D. and a Lease had been made by name de Mi∣nister domus de D. omitting this word Dei, every one will agree that this is voyd; but if a further addition be made to the Corporation, the Lease is true,* 1.17 allbeit that it be varying, as if the Lease had been Minister Dei omnipotentis, the addition of this word omnipotent, shall not hurt, & sic de similibus.

And allbeit that it be not agreeing in words, yet if it agree in common understanding,* 1.18 it is good; but if in common understand∣ing, the grant may not be taken according to the Foundation, if it be not wrested to an unexpected understanding, there it is not good; and if the Foundation had been in English words, Mi∣nister of God of the poor house of Donington, and the Lease by name of Minister of the poor house of God of Donington, every one will agree that this is palpable variance, and the Lease not good. And I doubt of the case of Everwick, for there the Prior beat•••• Mariae brought an action by name of Prior beat•••• Mariae extramu∣res civitatis Ebor▪ and if this case were now to be adjudged, that would be variance, as the case of Bristoll, Prior beatae Maria de Bri∣stoll, made a Lease by name of Prior beatae Maria juxta Bristoll; and this Lease was adjudged voyd; but if the case had been de Everwick juxta mures civitatis Ebor. this had been no materiall variance, for it had been but an explanation, which will never hurt;

and for that the Court was so divided in opinion, that is to say, two against two, and the case concerned a poor house, They moved the parties to comprimise.

8.

RUswell brought disceipt against Vaughan,* 1.19 and declared that the Defendant sciens that he had no title to the Advowson of D. took upon him to be owner of that, and sold the profits of the sayd Advowson to the Plaintif, pro quadam pecunia summa. And it was pleaded in arrest of Judgement, for that the Plaintif did not aver, ubi revera the Defendant had no title, & non allo∣catur.

9.

THe case was that the Queen made a Lease for years,* 1.20 rendring rent at the receipt of her Exchequer, or to the hands of her Baylif, upon condition, that if the rent be not payd, that the estate shall cease;* 1.21 after the Queen granted over the reversion; and whether the rent shall be now tendered upon the land, or at the receipt of the Exchequer, or to the person of the Assignee of the reversion, was the question; and it was adjudged that the Grantee of the reversion ought to demand the rent upon the Land, or otherwise he shall not re-enter for the condition broken, & that for two causes, the one, for that that when the reversion was in the Queen,* 1.22 the Lessee had electi∣on to pay it at the receipt of the Exchequer, or to the hands of the Queens Baylif, and when the Queen had granted over the reversion, the election of the Lessee is tolled, by which now the rent shall en∣sue the nature of other rents reserved by common persons,* 1.23 and those are payable upon the lands: another reason is, every rent reserved by the Queen is of common right payable at the receipt of the Ex∣chequer, or to the Baylifs of the Queen, without words appointing at what place it shall be payd; for these are the usuall receipts of the Queen, and so the words which appoint that to be payd at the receipt of the Excheq▪ ••r to the hands of the Baylif of the Queen, are idle words, for that the Law appointeth so much of common right, ex praerogativa Regis; but when the reversion is transferred into the hands of a common person,* 1.24 there this Prerogative ceaseth, for it cannot be granted to a common person; and by consequence the rent shall be payd upon the Land.

10.

THomas VVelcome,* 1.25 Executor of Anthony VV. Executor of John VVelcome, brought a Writ of Debt against S. S. in the Common∣place, and Judgement was given, and entred, quod praedictus Jo∣hannes VVelcome recuperet, where it should have been, quod praedictus Thomas VVelcome recuperet,* 1.26 and for that Error was brought, and Ser∣jeant Heale moved that the Record might be mended, for that it was the mis-entring of the Clerk, but adjudged to the contrary, for the Judgement is the act of the Court, and not of the Clerk.

11.

EDmund Nevell brought an Action of Trespass against J. Sayle,* 1.27 and declared Quare clausum fregit in quodam loco vocato Clavering∣field, abuttan. super quoddam molend. in tenura J. S. Opinio▪

Curiae

If

the Plaintif do not prove his Buttals, he is gone.

And for that he could not prove that the Mill was in the tenure of J. S. the Jury being at bar was discharged; and howbeit that there be a way be∣tween the Close and the Mill, yet the Buttall is good.

12.

RIchard Somerstailes brought an Action upon the case for slande∣rous words,* 1.28 that is to say, R. S. is a very bad fellow, for he made J. S. drunken in the night, and consened him of an hundred Marks; and upon not guilty pleaded it was found for the Plaintif, and Judg∣ment was stayed, for the words are not sufficient to maintain an Action.

13.

IF the Heir of the Morgagee is in Ward,* 1.29 and the Morgager payeth the mony, his entry is not lawfull upon the King, but shall be put to monstrans de droit, per Popham chief Justice.

14.

HAmond brought Debt upon an Obligation against Hatch,* 1.30 and the Condition was, That if the Obligor do well and truly per∣form and keep the Award of J. S. Arbitrator indifferently chosen be∣tween the Plaintif and the Defendant, for, and concerning the mat∣ters contained in 9 severall Articles, bearing date the day of these presents, So that the same be given up under the hand and seal of, &c. And the Arbitrator made an award of 7 of the sayd Articles, o∣mitting the other two; and whether the Obligor ought to perform this Award, was the question.

Man.

I think he ought to perform the Award, for that he is bound by Obligation to perform it, and to prove that he cited 5 Edw. 4. 19 Hen. 6. & 17 Edw. 4.

Gawdy

The words of the Condition are, so that the same Award be given up in writing before such a day; and that shall have reference to all the Articles; for the Submission was conditionall, as 14 Elizab.

And after Judgement was given quod quer. nihil capiat per billam.

15.* 1.31

A Man leased a House and a Close, rendring rent, and the Lessor entered into the house, and pulled that down, and after the Lessee re-entered into the Close,* 1.32 and whether the rent were revived or not, was the question. And

Popham and Gawdy

The rent is not

revived; and that the Lessee shall hold the Close discharged of any Rent, by the folly of the Lessor to impair the estate of the Lassee.

16.

DOwnall brought a Writ of Formdon against Catesby in the Com∣mon-place, * 1.33 and there was a speciall Verdict found, and Judge∣ment given, for a default in the Writ, against the Plaintif, and the Plaintif brought Error, and alleged for Error, that after Verdict given no default in the Writ shall prejudice the party, per le Statute de 18 Eliz. cap. 14. Popham chief Justice sayd,

if there be no Writ, it is holpen by the Statute,* 1.34 but it is otherwise if there be an insuffi∣cient Writ in matter, for that is not holpen; but a Writ that is in∣sufficient in form, and sufficient in matter, is holpen: And in every Writ of Formdon there are two things requisite, the one is the gift, the other the conveyance to the Demandant; and if either of these two fail, the Writ is insufficient in substance, and is not holpen by the Statute.

17.

PEter Palmer of Lincolns Inne brought an action upon the case a∣gainst one Boyer,* 1.35 and declared how he was an Utter-barrester of the Law, and got his living by practising of the Law, and was Stew∣ard of divers Courts, and namely of one John Petty Esquire, and the Defendant praemissorum non ignarus, to the intent to prejudice the Plaintif in his good name and practise, sayd of the Plaintif these English words, viz. Peter Palmer is a paltry Lawyer, and hath as m••ch Law as a Jackanapes; and it was pleaded in arrest of Judgement, that the words would not maintain an action, for they are not slanderous; for it is not sayd, he hath no more Law than hath a Jackanapes, for then it had been clear that the action is maintainable, for by that he had abated the opinion of his Learning, but it is not so in this case; for the words are, that he hath as much Law as hath Jackanapes, and this is no impeachment of his Learning, for every man that hath more Law than Jackanapes, hath as much; Et non al∣locatur, for the comparison is to be taken in the worst sense, and tant amounts that he hath no more Law than Jackanapes, per quod Judge∣ment was given for the Plaintif, for this is a slander in his profession by which he doth acquire his living.

18.

ONe libelled in the Spirituall Court for Tithe of Billet,* 1.36 Faggot' and Talwood, And averred that it came of Birch, Maple, Hasell and Hume, and thereupon a Prohibition was sued, surmising that they came of Oke, Ash, Elm, and Birch. And in the Spirituall Court allbeit one Libell for wood of one nature, and that is found of another nature; yet sentence shall be given for the Plaintif. The Court said that was absurd,* 1.37 and therefore they would hear a Civili∣an speak to that point.

Cook Attorney Generall

If consultation shall not be granted, then farewell all Tithe of Wood, for in truth in every faggot of Birch, there is put a great stick of Oak, or Ash, intending by that to privilege the whole faggot of Tithe. Nam crescit in orbe d••∣lus. Webb, Clark, said, the cunning is of your side to Libell for fagot; For if you had Libelled for Maple, Birch, or Hasell, no Prohibition would have been sued. And it was adjudged in this Court in Molins case, one Libbelled for billet and fagot generally, without shewing of what Wood they were made, And upon pleading upon the Pro∣hibition, * 1.38 it appeared to the Court that part was tithable, and part not. And for that they could never obtain a Consultation.

Cook

It doth not appear here that there was any mixture, so the case is not like.

Webb

You have no Right to have Tith of fagot, for that part thereof is not tithable being Oak, so by your Covetousness to have more than is your Right, you have lost that that is your Right,

Et adjornatur. And after at another day in the same Term, it was mo∣ved again by Savile,* 1.39 which said, that it was adjudged in Lanes case, that tith shall never be paid for Hasell-wood wich is mixt with Oak in fagots, quod Gawdie negavit.

Fenner

He ought to have pleaded the speciall matter to have had a Consultation,* 1.40 viz. how much of the fagot was Hasell, for so it was done, inter Molius & Dames. And there∣fore forasmuch as it is not so done, Consultation shall not be gran∣ted for no part of that, and of this opinion were all the Justices,

quod nota.

19.

NOta per Master Kemp Secondary of the Kings Bench Office,* 1.41 if a Latitat goeth forth against the Husband and Wife, and the Husband onely is taken, The Husband shall find surety for himself and his Wife, or otherwise he shall lie in Prison untill he find bail as well for his Wife as for himself, and said, that this hath been the use of the Kings Bench by the space of forty years of his knowledge.

20.

SCire facias was brought by Middleton against Hall,* 1.42 to execute a Judgement. The Defendant pleaded that he borrowed of the Plaintif 100. l. to give him 120. l. for the loan thereof for a year; And the Plaintif for his assurance would have the Defendant confess this Judgement of 120. l. And so he pleaded the Statute of Usury in bar to this Scire facias, and upon that the Plaintif demurred in Law, Godfery prayed Judgement for the Plaintif. The words of the Statute of Usury are all Bonds, Contracts, and assurances Collaterall, or other, made, &c. shall be utterly void; But here this Judgement may not be said any assurance for the money, but is a Judgement up∣on the assurance, for which, &c. Clark contra. But the whole Court being twise moved, held clearly that this is no plea to defeat a Judge∣ment; But if such matter had been, the Defendant ought to have pleaded that, upon the first Action in bar, and so not to suffer the Judgement.

Popham

Here are two inconveniences, one to defraud and defeat the Statute of Usury, the other to avoid Judge∣ments upon such suggestions which might be pleaded in bar in the first Action; and after the Plaintif had Judgement to recover.

21.

MArtin,* 1.43 Attorney of the Kings Bench, brought an Action of the case against Burling for slanderous words, viz.

Martin, is he your Attorney? he is the foolishest and simplest Attorney towards the Law; And if he do not overthrow your cause I will give you my ears, he is a fool and an ass, and so I will prove him.

If these words be actionable or not was the question, in arrest of Judgement after Ver∣dict for the Plaintif, and the Court seemed prima facie, that they are not. But after the case was moved by Harris for the Plaintif, and then by the consent of all the Court Judgement was given for the Plaintif; And Popham said, that to say that an Attorney will over∣throw his Clients cause is an Actionable slander.

22.

COllet brought a Writ of Error against Marshe,* 1.44 upon a Judgement given in the Common place in a praecipe quod reddat, And assigned for Error, for that by the Statute de 31 Eliz. cap. 13. it is inacted for the avoiding of secret summons in reall Actions, without conve∣nient notice of the Tenants of the Freehold, that after every sum∣mons upon the Land in any reall Action, fourteen daies at the least

before the Retorn thereof, Proclamations of the summons shall be made on a Sunday, at, or near the most usuall door of the Church or Chapell of that Town or Parish where the Land, whereupon the summons were made, doth lie, and these Proclamations so made as aforesaid, &c. ut in Statuto. And in this case, there was not any Pro∣clamation made at the Church door; And whether the Plaintif shall have an Averment against the Sherifs Retorn was the question. And adjudged that the party shall not have the Averment against the Re∣torn of the Sherif:* 1.45 For if the Retorn be false, the party shall have an Action upon the case against the Sherif.

23.

POrtman brought an ejectione firme against Willis, and a speciall Verdict was foun••, that Roger Hill was possessed of a Lease for years, and gave divers personall Legacies to severall persons, and gave all his other goods and Chattells to his Wife, and whether the Wife shall have this Term, being a Chattell reall, or not, was the question.

24.

GRay brings Trespass against Trowe,* 1.46 for entring into his Close, and taking of Fish out of a Fish-pond with nets and other En∣gines; The defendant pleaded that long time before the Trespass was done, one Thomas Grey was seised of the Close and Pond, and put the Fishes into the Pond, and after the said Thomas Grey made the Defendant his Executor, and died; And he as Executor took the said Fishes,* 1.47 and upon that the Plaintif demurred, and it was ad∣judged that the Heir shall have the Fishes in the Pond, and not the Executors,* 1.48 for they are Chattells descendable, but by Clinch it is Fe∣lony to take them.

Popham

If they be in a Trunck so that they may be taken out by the hands of men, without nets or other Engins, there it is Fellony, but otherwise it is not Fellony.

25.

THynn brings Debt against Cholmeley for 300. p. of arrerages of a no∣mine poenae,* 1.49 and declared of a Lease for years made by him to one Agar, rendring Rent, And if default of payment be made of payment of the said Rent, at any day in which it ought to be paid, that then & so often the said A. his Executor and Assignes shall pay 3. s. 4. p. for every day, untill the aforesaid Rent so behind shall be satisfied, And shewed how the Rent was behind and not payed for two years;

But doth not say that he demanded the Rent.

Jackson

The sum de∣manded, is by computation more than is due, reckoning but iij. s. iiij. d. for every day that the Rent is arrear. And if that be his in∣tent he demands too little, for in two years that will be infinite.

Gaw∣dy

It seemeth that he shall not have but onely iij. s. iiij. d. for every day.

Fenner

I think he ought to make demand of the Rent, or other∣wise he shall never have the nomine poenae.

Gawdy

No truly, no more than in debt upon an Obligation, and he cited 21 Hen. 6. 21 Edw. 4. & 22 nomine poenae.

Fenner

The cases are not alike,* 1.50 for in debt upon an Obligation there is a duty, but otherwise it is of Rent. And it was agreed that the action well lieth against an Assignee in this case.

26.

HUmphrey Parlor brought an Action upon the case for words a∣gainst I. S. And the words were these,* 1.51 viz. Parlor was in Prison in a Jail for stealing of Mr. Piggots Beasts; and it was pleaded in arrest of Judgement, that the Action doth not lie, forasmuch as it is not presciely alleged and affirmed that he stole the Beasts: But by Im∣plicatior. Nevertheless Judgement was given for the Plaintif, for by Fenner, if he had said he had been in Prison for suspition of stealing Mr. Piggots Beasts, no Action will lie, for a treue man may be sus∣pected: But here is a direct affirmance of stealing; For a man cannot be imprisoned for stealing, if he do not steal.

27.

THe Earl of Pembr••ok brought an Action upon the case against Henry Barkley militem;* 1.52 and the case in effect was such, that the late Earl of Pembrook, Father of the now Pla••ntif, was seised in Fee of the Mannor of D. in com••tatu Somerset, and by reason of that, he had the Office of Liuetenantship in the Forrest of Cromcelwood, and of all the Walks in that. And by reason of the said Office, had all the com∣mandement of the game within the Forrest, and he so seised, the Earl granted to Sir Maurice B. Father of the now Defendant, and to the Heirs Males of his body, the Keepership of a walk called S. in the West part of the Forrest, and in the said Deed of grant were such words, Provided allwaies, and the said Sir Mawrice B. doth Cove∣nant and grant, to, and with the said Earl of Pembrook, that it shall and may be lawfull to and for the Earl, his Heirs and Assignes, to have the preheminence of the game within the said Walk; Provided allso, and the said Sir M. B. doth further Covenant and grant to and with the said Earl, That neither he, the said Sir M. his Heirs or

Assignes, shall or will cut down any Timbertrees growing within the said Walk. And after Sir M. B. died, and the said Sir H. was his Son and Heir, and cut down Trees within the Walk. And the Lord of P. commanded his servants to enter into the said West-walk, and there to Walk; And Sir H. B. did disturb them, and upon that the Action was brought, and the point of the case was, if the wordes in the second Proviso make a Condition, or but a Covenant.

Gawdy

I doubt of the case; for all the question of the case is, if it be a Con∣dition, or but a Covenant; And as I am now advised, ••••hit is but a Covenant, and no Condition. For in all cases where this word (Pro∣viso) ought to make a Condition, there ought to be a perfect sen∣tence to explain the meaning of the parties, or otherwise it is no Condition. As if the wordes are provided allwaies that if the Rent be behind, and say no more now, this is no Condition And here all the sense comes in after the words of Covenant, and these words are the words of Sir M. B. And for that it see∣meth no Condition; for if the words had been, And it is provided by Sir M. B. there it is clear no Condition. But if in a Lease for yeares be words, and the Lessee do provide, that if the Rent be behind, that then the Lessor shall re-enter, there I agree that this makes a Conditon. And in the case put by my Brother Williams, a Lease made, & provisum est quod non licebit to the Lessor, to grant over up∣on pain of forfeiture, there is a good Condition; But otherwise it shall be, if sub poena forisfacturae were omitted.

Fenner

I think it is a a Condition, for all the words put together, explain the meaning of the parties, as if he had said upon Condition, And the Lessee doth Covenant and grant, and none will deny but that this is a Conditi∣dition. Clinch seemed that it is no Conditon, for the words may not be used as a Covenant, and allso as a Condition. As where a grant is by Deed, by words of Dedi, concessi, & confirmavi, the Deed may be used as a Grant, or confirmation, at the Election of the party; But it cannot be used in both sorts.

Popham

I think that the Proviso as it is here placed will make a Condition, and yet I will agree, that a Proviso shall be sometimes taken for a Condition, and sometimes for Explanation, and sometimes for a Covenant, and sometimes for an Exception, and sometimes for a Reservation; and it is taken for a Condition; As if a man Lease Land, provided that the Lessee shall not Alien without the Assent of the Lessor, sub poena forisfactura, here it is a Condition; and if I have two Mannors, both of them named Dale, and I Lease to you my Mannor of Dale, Provided that you shall have my Mannor of Dale in the Occupation of I. S. here this Proviso is an Explanation what Mannor you shall have; and if a man Lease a house, and the Lessee Covenanteth that he will that maintain, Pro∣vided allwaies that the Lessor is contented to find great Timber,

here this is a Covenant; and if I Lease to you my Messuage in Dale, provided that I will have a Chamber my self, here this is an Ex∣ception of the Chamber; and if I make a Lease rendring Rent at such a Feast as I. S. shall name, Provided that the Feast of St. Michael shall be one, here this Proviso is taken for a Reservation; and in our case, if the words had been provided allwaies that the Donees shall cut down no Trees, and the Lessee doth Covenant he will not fell any, here every one will agree that it is a Condition, and allso a Cove∣nant; And in this case in my opinion, this tant amounts.

Serjeant Williams and Cook Attorney for the Plaintif. Atkinson and Tanfield for the Defendant.

28.

LAssels the Father,* 1.53 brought an Action upon the case against Lassels the Son, for words, viz. he, quendam Thomam Lassels fra∣trem ejusdem Def. innuend. stole a Mare, and you, innuend. querent. knowing the same, conveyed her into the Fenns to my Brother B. his house. Clinch and Gawdy seemed the Action maintainable. Fenner econtra.

29.

A Man was indicted for stealing of a hat and a band, and other such things;* 1.54 And the Prisoner said, that he was before that time in∣dicted for goods stolen the same day and time, and acquitted. Gaw∣dy said, he may not be severally indicted for goods stolen at one time. As if a man steal a dozen of silver spones, he may not be indicted for two in one Indictment, and for other two in another, & sic de singu∣lis. Clinch accord.

Fenner

Yes truly, for it was the case of Thomas Cobham, the which was indicted for goods taken in two shipps, and acquitted, and after condemned for other goods taken at the same time.

30.

PEarce brought an Action upon the case against Barker,* 1.55 and de∣lared how within the Mannor of Dale, time out of mind, there had been divers Copyholders, and during the same time, there hath been a usage within the said Mannor, That every Copyholder for e∣very Acre of Land shall have Common in such a Wast of the Lords for two Beasts; And shewed how the Plaintif is possessed of twenty Acres, and by reason of those, ought to have Common for forty Beast••. And there hath the Defendant being Lessee for years of the same

Mannor, one Conigray within the same Wast, by which the Conies have so digged the ground, that his Beasts cannot have Common as they were wont to have.

Fenner

A Copyholder may not prescribe but in right of his Lord; but now the Lord pro tempore, is party to the action, and whether this will alter the case or not, I doubt.

Glan∣vile

Albeit the Copyholder may not prescribe but in right of his Lord, yet by way of usage, as this case is, it hath been adjudged that he may make his title.

31.

A Ruudell was heretofore arraigned upon an Indictment of will∣full Murder for the death of one Parker,* 1.56 and was found not guil∣ty of Murder, but guilty of Manslaughter, for which he pleaded the generall pardon, de 35 El. And the Queens Attorney alleged, That in the sayd generall pardon there is an exception of all persons being in prison by the commandement of one of the Privy-counsell; and said, that the sayd Arundell was committed by the Lord Chamber∣lain for suspition of the sayd Felony, and for the same in prison at the time of the Parliament,* 1.57 and so a person exempted. To which it was sayd by the Defendant, that long time before the sayd Parlia∣ment, and after the sayd commitment by the Lord Chamberlain, there went out of this Court a Corpus eum causa, by force of which he was sent into this Court, with the cause of his commit∣ment, and was for the sayd offence committed by this Court to the Marshalsey, and there was remaining at the time of the Parliament by force of the commitment of this Court, and it seemed by the better opinion of the Court if a man be committed by a Privy-counsellor, and removed by Habeas corpus; and committed by this Court, he shall be now sayd imprisoned by commitment of this Court, and not of the Privy-counsellor.

32.

STaugnton brings a Writ of Error against Newcomb upon a Judge∣ment given in Debt in the Common-place,* 1.58 and the first Error as∣signed was for that the originall Writ was xx l. and all the mean Process were so likewise, but when the Defendant appeared to the Exigent, the entry was, quod defendens obtulit se in placit•• debit•• decem librarum, where it ought to be xxl.

Dodderidge

I think it shall be amended; for it is the misprision of the Clerk, and to prove that, he cited 37 Hen. 6. 44. Ed. 3. 18.

But upon view of the Record it appeared that no originall was certified, and therefore could not be amended.

33.

EJectione firme inter Bulleyn & Bulleyn.* 1.59

Cook Attorney Generall

The case is, that Simon Bulleyn being cestui que use, before 27 H. 8. Devised to his Wife certain Land for her life▪ & that after her decease Robert Bulleyn his eldest sonne shall have the land ten pound under the price it cost,* 1.60 and if he dyed without issue, that Richard Bulleyn his second sonne shall have the land ten pound under the price it cost, and if he dye without issue of his body, then his two Daughters A. and B. shall have the land, paying the value thereof to the Executors of his Wife; and allso by the same Will he desired his Feoffees at the request of his Wife to make Estates accordingly. The chief que∣stion, and knot of the case is, whether Robert Bulleyn the Devisee hath an estate tayl or not; and he sayd it seemed to him, he had but an estate tayl: and for that we are to see whether the payment ought to precede, or is subsequent to the estate; and I think it is subsequent to the estate; For the words are, my sonne Robert shall have my laud ten pound under the price it cost, and so by the words he ought to have the land before any payment; and I think he shall have the land by course of limitation;* 1.61 and if he doe not pay the money, that R. B. shall have the land as Heir by li∣mitation; * 1.62 and for that purpose he cited Crickmores case in 3 Elizab. where a man had two Daughters, and devised his land to his eldest daughter, paying to the youngest ten pound; there the eldest had all the land till she failed of payment of the ten pound, and then it was adjudged that the youngest should have the moity by way of li∣mitation. * 1.63 And 32 Eliz. it was adjudged in this Court inter Vellock & Heymond, where a man devised Burrongh English land to the eldest brother, paying to the youngest ten pound, and after the elder failed of payment, and the youngest entered by way of limitation. And in this case these words, that Robert my son shall have my land ten pound under the price it cost, will make a condition, as well as if he had sayd, paying ten pound; and to prove that he cited Sir Edward Cleres case,* 1.64 that these words upon trust and confidence will not make a Condition, by reason that the Devisor had a speciall trust and con∣fid••nce in the Devisee; but it is otherwise here, and in this case the estate of necessitie ought to precede the payment; for it is appointed that the payment shall be made to the Executors of the woman, and so if the estate doe not precede the payment, then during the life of the woman the Devisee shall have no estate; for during her life she cannot have Executors; and so by consequence can there be no pay∣ment: Allso the words of the Will are, I desire my Feoffees to make an estate at the request of my Wife, so that his meaning was plain, that there should be an estate made in the life of the Wife, for after

her death she may not make request; but it hath been sayd, that the state should be Fee simple, for that the words are, that he shall have the land ten pound under the price it cost, and so these words pay∣ing shall carry the Fee simple: And as to that, I say that it shall not against an expressed estate:* 1.65 And for that 2 El. 117. a Frenchman de∣vised lands to his Wife for life, the remainder to C. F. and to the heirs Males of his body, and if he dye without heirs of his body, the remainder over, and it was taken clearly, that the generall limitati∣on, if he dyed without issue of his body, shall not alter the speciall tayl, for that the intent is apparent, and allso he cited Claches case, and Atkins case 34 Eliz. 33. Allso in this case Robert Bulleyn the De∣visee is made Executor to the woman, so that if it were a condition subsequent, he may not make payment to himself, but shall have the land discharged of the condition, by reason of the impossibility; as if the woman had dyed intestat, there is no person to whom the pay∣ment ought to be made, and so the Devisee is discharged of the con∣dition: Allso in this case the Devisee being eldest sonne, may not forsake the Devise, and take by descent, as in 3 Hen. 6. 46. it is for the benefit of him in remainder; but if he might waive, he may not waive in pais, as 13 Rich. 2. Joyntenancy is adjudged: And allso when he enters at the first, he is seised by the Devise, for he hath no other right; for if he might waive, he in remainder shall not take.

Et adjornatur; but the Court seemed to lean that the estate should be a Fee simple.

34.

BUry brought an Action upon his case for words against Chappell,* 1.66 viz. He hath been in Fowlers Tub (innuendo the Tub of one Fowler a Chirurgeon, in which Tub no person had been but those which were layd of the Pox) I will not say of the Pox, but he lay in the Tub that time that Lagman his Wife was layd of the Pox; and tell thy Master his hair falls from his head, and he is a pilled Knave, and a Rascall Knave, and a Villain, and no Christian, and thinks there is neither heaven nor hell; and adjudged that the Action is not maintainable.

35.

A Man is arraigned of Felony and acquitted,* 1.67 but it is found, that he fled for the Felony, he shall not lose his goods that he had at that time of his flying, but at the time of the acquittall, tit. Coronae Fi••zh. 296. Bro. tit. relation 31. 3 Ed 3.

36.

WIlkinson brought Error upon a Judgment given against him in the Common place.* 1.68 And the case was that in Debt brought against Wilkinson in the Common place, upon an Obligation bearing date 1••. die Novembris, the Defendant imparled, and in the next Term the Plaintif declared a new, prout patet, upon an Obligation bea∣ring date 12. Februarii, and upon nihil dicit had judgment. And now in the Writ of Error brought by the Defendant the Plaintif prayes that it may be amended. Gawdie & Fenner said it could not be amended, but the Lord Popham and Clinch said it might be amended.

37.

SKelt brought an Assumpsit against Wright, and declared that the Defendant in consideration of 10l. assumed to make two lights into one,* 1.69 and upon non assumpsit pleaded, they were at issue, and the Record of nisi prius was to make two lights and one, where it ought to be into one, and upon that at the nisi prius the Plaintif was non suit. And it was now moved whether the Plaintif ought to have a new venire facias upon the first issue, insomuch as the first venire facias did not issue forth upon the first Record, and no non suit: Et opini•• Curiae, that he may go to a new triall, but whether he shall have a venire fa∣cias de novo, or that the old venire facias should serve, the Court doubted, for that the first Jury was sworn.

38.

FOrd brought an Action of Debt against Glanvile and his Wife Ad∣ministratrix bonorum & Catellorum qua fuerunt Johannis S. duran∣te minore aetate T. S.* 1.70 The Defendant pleaded that hanging this action against them, the said T. S. during whose nonage the Wife was Ad∣ministratrix, came to full age: and if this were a good Plea or no was the question, And adjudged a good Plea.

39.

UPon an information against Sr. Christopher Blunt a Juror was challenged for want of Free-hold,* 1.71 and by examination was found that he had 20 shillings a year. Fenner and Gawdy doubted whether this be sufficient Free-hold or not, Popham and Clinch held it is sufficient, for the Statute binds not the Queen, and by the Com∣mon law if he had any Free-hold it was sufficient.

Fenner

This is a Statute made for the benefit of the Common-wealth, and therefore

the Queen shall be bound by it, though she be not named in it.

Gaw∣dy

Me thinks every Juror ought to have 40. s. Free hold at the least, by the Common-Law.* 1.72

Cook

No certainly, and if they doe take the Law to be so, they may have a bill of exception.

Tanfield

Wee cannot have a bill of exception against the Queen; see the Statute of 1 Hen. 5. cap. 3. that that is between party and party, and the Statute of 8 Hen. 6. the preamble is between party and party.

But Popham commanded the Jury to be sworn, but Gawdy would have sent to the Justices of the Common Pleas for their opinion, but the Juror was sworn by Commandment of Popham, against the opinion of Justice Fenner.

40.

PEr Cook;* 1.73

If I am bound in an Obligation in Lent upon Conditi∣on to pay a lesser sum, in quarta septimana quadragesima proxi∣mae futurae. This money shall be paid in Lent Twelvemonth after; And so it is upon the Feast day of St Michael, I am bound to pay a lesser Summe upon the Feast day of Saint Michaell, prox. futur. without question said he, it shall be paid the Twelvemonth after, and not the instant day.

41.

THE Duke of Norfolk Morgaged certain Lands to Rowland Haward,* 1.74 Alderman of London, upon Condition, that if the said Duke do repay to the said Alderman a certain Sum of money; That then the Duke might re-enter, and after the Duke was attainted be∣fore the day of payment,* 1.75 and all his Lands, Tenements, and Condi∣tions were given to the Queen; And the question moved at the Ta∣ble in the Serjeants Inne, was, whether Sir Rowland ought now to make a Demand of the money upon the Land, or to demand that at the Receipt of the Exchequer, or that the Queen ought to make the tender upon the Land; And it was agreed by all the Judges and Serjeants at dinner, that the Queen ought to make no tender; But the Alderman ought to make his Demand at the Exchequer, and not upon the Land.

42.

REdfrein agaiust I. S. an Action of the case was brought for words,* 1.76 viz. I was robbed, and you were privy thereunto, and had part of my money. It was pleaded in arrest of Judgement, that the words will not maintain an Action; For that a man may be privy to a rob∣bery

after that it is made, and have part of the money by honest meanes, and therefore it is no slander; but the whole Court held the contrary;* 1.77 as well as you are infected with a robbery and smell of the same, will maintain an Action, so will these words, therefore Judgement was given for the Plaintif.

43.

MEggs against Griffyth brought an Action for these words,* 1.78 viz. A woman told me, that she heard say, that Meggs Wife poy∣soned her Husband in a mess of milk; and Judgement given for the Plaintif.

44.

REvell against Hart,* 1.79 the case was upon the Statute of 13 Eliz. of Leases made by a Parson. Serjeant

Harris

A Lease made by a Parson is not void against the Parson himself, no more than a Lease made by a Bishop, which is not void against the Bishop him∣self, as was judged in the case of the Bishop of Salisbury.

Fenner

The Law is as you said, in a case of a Bishop, but the case of a Parson per∣case will differ.

Popham

If Rent be reserved,* 1.80 it is good against the Parson himself, otherwise not.

Clinch and Gawdy

It is good against the Parson himself.

45.

WInch brought a Writ of Error against Warner,* 1.81 upon a Judge∣ment in a Writ of Debt in the Common place upon Arrerage•• upon an account; and it was assigned for Error, for that the Plaintif in the Common place,* 1.82 in the first Declaration left a space for the day and year, And after imparlance, he put in a new Declaration which was perfect. But for that the two Declarations did not agree; and the first Declaration is the Warrant of all, and therefore ought to be perfect, therefore the Judgement ought to be Reversed for this default.

46.

IT appeared in Evidence inter Petties and Soam,* 1.83 upon an Assumsit for ware bought by the Factor of Soam, per opinionem Cur. If one be Factor for a Merchant, to buy one kind of Stuff, as Tin, or other such like; and the said Factor hath not used to buy any other kind of wares but this kind onely for his Master, If now the said Factor

buy Saies or other Commodities for his Master, and assume to pay money for that, Now the Master shall be charged in an Assumpsit for the money, and for that let the Master take heed what Factor he makes.

47.

A. B. being seised in Fee,* 1.84 made his Will, and devised his Land to his Wife for life, the remainder to his Son in Tail, and if he died without issue, the Land to remain to R. W. and his Wife for their lifes; and after their deceases, to their children. The question is, whether the children of W. take by descent or as Purchasers. Popham & Gawdie were of opinion, that they had an Estate Tail, But Fenner & Clinch, but for life.

48.

WIlliam Gerrard was arrested by a Latitat, and put in bail by the name of William Gerrat,* 1.85 and the Plaintif declared against him by the name of Gerrart, and all the proceedings and issue was accordingly, and Judgement was had by Verdict tryed for the Plain∣tif. And Gerrard pleaded in arrest of Judgement, for that there is no bail entred: for the bail is for Gerrat, and his name is Gerrard.

Cook Attorney

He may be known both by the one name and the o∣ther: For in Norfork there is a Knight, which in Common speech is called Barmeston, but his right name is Barnardiston; And if he by the name of Barmeston put in bail in this Court, it is good, being knowen by the one and other; and so it seemed the Court did incline for the dangerousness of the: President For otherwise every man im∣pleaded may give a false name to his Attorney, by which he will be bailed, and then Plead that in arrest of Judgement, but Judgement was giuen for the Plaintif.

49.

IN debt upon an Obligation,* 1.86 the Condition was, that if the Obligee retorned from beyond Sea before the 22 of Aprill, and the Obligor pay to the said Obligee 200. l. before the twenty seventh of Aprill, then the Obligation to be void (Otherwise to stand in force) Cook moved that the Obligee ought to give notice to the Obligor of his retorning from beyond Sea before the two and twentith day of A∣prill, or otherwise the Obligor is not bound to pay him the money: For when a thing resteth in the will of another to be done, and the

time is uncertain when it shall be done, Then notice ought to be gi∣ven to him which ought to do the thing, as 18 & 19 Eliz. 354. placi••. 32. & 17 Eliz. A man made a Lease for years, And after made a new Lease to Commence after determination, Forfeiture, or Surren∣der of the first Lease, with clause of Re-entry for non payment of the Rent, And after the Lessor took a secret surrender of the first Lessee, and after that surrender a Rent day incurred, and the Rent was not paid by the second Lessee, and yet adjudged that his Estate is not void, because the other ought to give him notice of the Surrender.

Gawdy

The case is not alike, for 8 Edw. 4. a man ought to take notice of an Abitrement.

Fenner

It shall be as dangerous for the Obligee, if he ought to give notice, as for the other to take notice.

50.

STafford brought an Action of Trespass against Bateman,* 1.87 for taking of a Cow; The Defendant said, that the Land where the Trespass was supposed to be made, is the Land of one Iohn Dean; The which I. D. hath lost iiij. l. issues to the Queen, and there came a Warrant out of the Exchequer to the now Defendant, being undersherif, to levy the said iiij. l. in the Lands of the said I. D. And because this Cow was Levant and Couchant within the said Land, he took her, as lawfull was for him to doe.

Gawdy & Fenner

The Sherif may not take Beasts of a stranger in the Land of him that hath lost issues to the Queen.

Popham

By way of distress, he may take Beasts of a strang∣er, if they be Levant and Couchant upon the Land of him that hath lost issues, but not to sell them, and so to levy the Issues.

51.

ERror was brought by An. Latham,* 1.88 upon a Judgement given a∣gainst him in a Writ of Debt in the Common place, and the Error assigned was, for that the Originall Writ was purchased against him by the name of A. L. nuper de London Yeoman, alias A. L. de Sherb•••••• in Com. Ebor.* 1.89 Yeoman. And upon that, the said An. L. appeared and pleaded, and was condemned, and after a Capias ad satisfaciend. issued against him by the name of A. L. nuper de L. Yeoman, alias A. L. de Shelb•••••• in Com. Ebor. Yeoman, and so he assigned the variance be∣tween the first Originall, and the Capias ad satisfaciendum, Shelbone for Sherbone, but for that this variance was not in the first name, but in the first Addition, therefore it was adjudged no Error by the opinion of the Court.

52.

LAugford and Bushy did present by turns to the Advowson of Nor∣winkfield; * 1.90 Langford presented one A. which was instituted,* 1.91 and inducted, and dyed; Bushy presented one C. which C. was lawfully deprived by the Bishop of Coventrey and Lichfield, without giving any notice to Langford who had the next turn: The Bishop made Collation, and after Collation Langford sold his moity to Lee,* 1.92 and Lee to the Earl of Shrewsburie: The question was, whether by the Collation Langford hath lost his turn. The Court seemed to incline, that by the Collation the turn is lost, for if it had been by usurpati∣on it had been lost without any question. And yet it seemeth, that upon deprivation the Patron ought to have notice. Vide Statut. de 13 Eliz.

53.

YElverton the Queens Serjeant demanded the opinion of the Court,* 1.93 if a man be seised of land in Fee, and have two Daugh∣ters onely, and deviseth his land to his Daughters in Fee, if now the two Daughters shall be Joyntenants, or take by descent as parceners; and the opinion of the Court was, that they are in by the Devise, and not by descent, and so they shall be in as Joyntenants, and not as Parceners; but otherwise it shall be if there were but one Daugh∣ter, and the Father devise the land to her; so if he devise the land to his Son and Heir in fee.

54.

NEcton and Sharp Executors of Throward sued a Prohibition a∣gainst Gennet and others,* 1.94 and the case was, that one that had a Legacy devised unto him, sued the now Plaintifs being Executors, for the sayd Legacy, in the Spiritual Court, and the Executors there pleaded, that the Testator in his life time made a certain Obligation sufficient in Law to J. S. the which is not yet satisfied, and the Spi∣rituall Court would not allow this Plea, for which he had a Prohibi∣tion. Makin, Attorney of Essex, sayd to me, that this is the second case in question of this point, but he doubted that the pleading was so vitiou••, that the matter in Law would not come in question.

Executors represent the person of their Testator, and therefore if a release be made by one of them,* 1.95 this shall bind all; and so if an Action is brought against one Executor where there be divers Execu∣tors, and he admit the Writ, and confess the Action, this shall bind all the goods of the dead as well as if they were all named, Per H••rn.

55.

GReningham brought an Action of Debt upon an Obligation against Ewer;* 1.96 The Condition was, that if the said Ewer doe deliver unto the said Greningham certain Obligations which the said Ewer hath of the sayd Greninghams, or else doe seale such a release as the said G. shall devise, before Mich. that then, &c. The Defendant pleaded that before the said Feast of St. Mich. the said G. did not tender to him any acquittance.

Gawdie

The Obligation is void; for in so much as the Obligee hath not tendred to him any acquittance, therefore he hath tolled from him the election, whereof he shall not take advan∣tage.

Fenner è contra

for the election is not in the Partie, for the ma∣king ••o the acquittance resteth in the will of the Obligee, and so the Obligor hath no election.

Popham was of the same opinion.

56.

IF a Sheriff doe execute his Writ, the same day that the Writ is re∣tornable, * 1.97 it is a good execution,

per Yelverton, and he cited these cases. A Judgement given in a quare impedit, 18. Eliz. and the Writ of dammages was executed the same day that it was retor∣nable, and this matter pleaded in arrest of judgement, and notwith∣standing the partie had judgment, and if a capias ad satisfaciendum goe forth, and the Sheriff take the Partie the same day that the Writ is retornable, and send him into the Court, who will say that this is not a good execution?

57.

WOodcock brought an Action of Debt against Heru,* 1.98 Executor of I. S. The Defendant pleaded, that the Testator in his life time made a Statute Staple to one I. K. in the sum of 1000 l. and above that he hath nothing; And if this Plea be good or not is the questi∣on.

Fenner

The Plea is good without question.

Gawdie

I have heard divers learned men doubt of that; for, if the Testator were bound in a Statute to perform Covenants which are not yet broken, and it may be they will never be broken; and then he shall never be chargeable by this Statute, and yet he shall never be compelled to pay any debts, which will be a great inconvenience. And again; I think there will be a greater mischief of the other part; for, put the case if the Executors doe pay this debt, and the Statute is broken, after he shall be chargeable by a devastavit of his own proper goods, the which will be a greater inconvenience.

58.

BRough against Dennyson brought an Action for words,* 1.99 viz.

Thou hast stoln by the high-way side.

Popham

The words are not actionable, for, it may be taken, that he stole upon a man suddenly, as the common proverb is, that he stole upon me, innuendo, that he came to me unawares: And when a man creepeth up a hedge, the common phrase is,

he stole up the hedge.

Fenner

When the words may have a good construction, you shall never construe them to an e∣vill sense. And it may be intended he stole a stick under a hedge, and these words are not so slanderous, that they are actionable.

59.

A Copy-holder was not upon his Land to pay his rent,* 1.100 when the Lord was there to demand it: And whether this were a forfei∣ture or not was the question.

Fenner

It is no forfeiture if there were not an express denyall; for, the non-payment here is but negli∣gence, the which is not so hainous an injurie as a willfull denyal; for, it may be that the Copy-holder, being upon the Land, hath no money in his purse, and therefore it shall be a very hard constructi∣on to make it a forfeiture. But if he make many such defaults it may be it shall be deemed a forfeiture.

Popham

If this shall not be a for∣feiture, there will grow great danger to the Lord, and the Copy-holders estate was of small account in ancient time, and now the strength that they have obtained is but conditionally (to wit) pay their rent, and doing their sevices, and if they fail of any of these the Condition is broken, and it seemeth cleer if the rent be payable at our Lady day,* 1.101 and the Lord doth not come then, but after the day, to demand the rent, there is no forfeiture.

60.

THe Case was that there was Lessee for life,* 1.102 the Remainder for life, and the first Lessee for life made a lease for years, and this Lessee was put out of possession by a stranger, and the stranger sow∣ed the Land, and the first Lessee for life dyed, and he in remainder for life entred into the Land, and leased it to Sir Henry Knevit, and who should have the corn was the question. Tanfeild argued that Sir H. K. being Lessee of the Tenant for life in remainder, shall have the corn; for the reason for which a man, which hath an uncertain estate shall have the corn, is, for that he hath manured the land, and for that it is reason that he that laboureth should reap the fruit; but he said that the stranger that sowed the land, shall not have the

corn,* 1.103 because his estate begun by wrong; for if a man make a lease for life of ground sowed, and before severance the Lessee dyed, now his Executor shall not have the corn,* 1.104 for that they came not of the manurance of their Testator; so it is if the Lessee for life sowe the land, and assign over his interest, and dye, now the Assigne shall not have the corn, cansa qua supra: and for this reason in our case, nei∣ther the Executors of the first Tenant for life, nor the Lessee of the first Tenant for life shall have the corn, here, for that it comes not by their manurance; and the stranger which sowed them, he shall not have them;* 1.105 for albeit he manured the land, and howbeit his estate was defeasable upon an uncertainty, yet he was a wrong doer, and the incertainty of his estate came by his own wrong, for which the law will never give any favour to him; and for that when he in re∣mainder for life entreth, it seemeth that he shall have the corn, for he hath right to the possession, and the corn are growing upon the soile, and by consequence are belonging to the owner of the soile; but it hath been said, that here there was no trespasse done to him in remainder, and for that he shall never have the corn. Sir, as to that I say, if an Abator after the death of the Ancestor, enter, and sowe the land,* 1.106 and after the right heire enter, in this case the heire shall have the corn, and yet no trespasse was made to him, and it hath been ad∣judged in this Court, where a man devised land sowed, to one for life, and after his decease the remainder to another for life, and the first Tenant entred and dyed before severance, and he in remainder entred, that there he in remainder shall have the corn, and by con∣sequence the same Law shall be in our case. Godfrey è contra; and he argued that the Lessee for yeers,* 1.107 of the first Lessee for life, shall have the corn; for if Lessee for life, leaseth for years, and this Lessee for yeers sowe the land, and the Lessee for life dye, now the Lessee for yeers shall have the corn, by reason of his right to the land at the time of his sowing, and never lawfully devested by any Act done by himself, and he denyed the cases put by Mr. Tanfield, and so con∣cluded.

Gawdie

The lessee for yeers of the Tenant for life shall have the corn, and he denyed some of the cases put by Mr. Tanfield, for in the case where Tenant for life sowes the land, and after assigns over his esttae, now if Tenant for life dye, the Assigne shall have the corn as well as the Executors of the Tenant for life, if he had not assigned over his estate. But I agree the case of the devise for life, of land sow∣ed, with the remainder for life, for there he in remainder shall have them, and the laches of the not entry of the Lessee for yeers shall not prejudice him;* 1.108 for, it appeareth by 19. H. 6. if Lessee for yeers of Tenant for life be ousted, and after the Tenant for life dye, yet the Lessee for yeers shall have trespasse, with a continuando for all the mean profits; The which proves that they belong to him, so is it in 38.

H. 6.* 1.109 If Lessee at will be ousted, and after the Lessor dye, now the Lessee shall have a trespasse with a continuando without regress, for, when he may not enter,* 1.110 the law supplyeth it, and the mean profits do belong to him. And by consequence in this case the corn belongeth to the Lessee for yeers,* 1.111 of the Tenant for life.

Popham

Sir Henry Knevit shall not have the Corn; for if a man lease for life ground which is sown, and the Lessee dye, now the Lessor shall have the Corn, and not the Executors of the Lessee for life. And he agreed with Mr. Tanfeild in the case of the Assignee of Tenant for life, of ground sowed, and the Tenant for life dye, that he in Reversion shall have the Corn:* 1.112 And if a Disseisor sow the land of Tenant for life, and the Tenant for life dye, now the Executors of the Tenant for life shall have the Corn, and not the Disseisor, nor he in Reversion; and by consequence the Lessee for years of the first Lessee for life in this case. Fenner was of the same opinion; and after it was adjudged that Knevit should have the land, and that Poole should have the Corn, because of his possession.

61.

RAme sued a Prohibition against Patteson,* 1.113 and the question was, if Trees which are above the age of twenty years become rotten, and are cut down for fuell shall pay Tyths or not, and the opinion of the Court was, that they shall not; for Tythes are payable for an increase, and not for a decrease; and being once privileged in regard of hie nature, this privilege shall not be lost in regard of his decre∣pitage.

62.

PArtridge brought an Action of Debt against Naylor upon the Sta∣tute of 1 & 2 P. & M. 12.* 1.114 For taking of a Distress in one County, and driving it into another; and the case was, that three men distreined a flock of Sheep, and them impounded in severall places, and if every of them shall forfeit a hundred shillings severally, or but all together a hundred shillings.* 1.115 The Court was divided, for the words of the Statute is that every person so offending shall forfeit to the party grieved for every such offence a hundred shillings, and treble damages; but Walmisley thought that every one should forfeit a hundred shillings, and he put a difference between person and par∣ty, for many persons may make but one party.

63.

BY Popham chief Justice of England by the Statute of 28 Ed. 3. cap. 10.* 1.116 Erroneous Judgement in London was a forfeiture of their. Liberties, but after that by the Statute of 1 Hen 4. cap. 15. this was mitigated, and was made finable; as in Chester, if they give an erro∣neous Judgement they shall forfeit an hundred pound; for these in∣ferior Courts which have peculiar Jurisdictions ought to do justly, for if these Courts shall not be restrained with penalties, Justice will be neglected; and before the Statute of 28 Ed. 3. those of London might not reform Errors in London.

64.

NOta per Doctor Amias in the Lord Souch his case,* 1.117 if a Church become voyd, and a stranger enters a Caveat with the Register of the Bishop, that none be instituted to that Church untill he be made privy thereunto, and the Bishop before that he have notice of the Caveat institutes an Incumbent, the Institution is meerly voyd in the Spiritual Law; for the Register ought to notifie the Caveat to the Bishop, and his negligence in that shall not prejudice him that entered the Caveat; and if the Bishop have notice of the Caveat, and gives day to him that puts that in, and before that day he institutes an Ineumbent, this is meerly voyd; for the entering of the Caveat is as a Supersedeas in our Law.

65.

THornton brought an Action upon an Assumpsit against Kemp,* 1.118 and declared that the Testator was indebted to him in ten pound, and in consideration that the Plaintif would give day to the Defendant, being Executor, to pay that, until Michaelmas, he assumed to pay that, & in facto dicit, that he hath given day, and yet the De∣fendant hath not that payd: The Defendant pleaded in bar that post praedictam assumptionem factam, and before Michaelmas, the Plaintif did arrest him for the same Debt, and demands Judgement, and up∣on that the Plaintif demurred.

Gawdy

When he hath given to him day of payment, us{que} ad Michaelmas, allbeit he arrest him before that time, yet if he do not receive the money before Michaelmas, the consideration is performed.

Fenner

I deny that, for to what purpose is the giving of day of payment untill Michaelmas, if in the mean time he may sue him.

Popham

I agree with my brother Gawdy, for insomuch that he onely forbears the payment untill Michaelmas, and

doth not promise to forbear to sue him, the payment is forborn if the money be not received.

66.

SHerington ••ued a Prohibition against Fleetwood Parson de Orrell,* 1.119 in Com. Linc. for that, that the sayd Parson libelled in the Spiritual Court for Tyths of Agistments, and the now Plaintif being Defen∣dant in the Spirituall Court, pleaded that he had allwayes payd twelve pence by the year for every Milch Cow going in such a Pa∣sture, and for this payment he had been discharged of payment of Tythes for all Agistments in that land.* 1.120

Popham

This payment of money for Milch beasts shall not discharge him for the payment of Tythes for other beasts, and Tythes shall not be payd for beasts fed for the occupation of the house of the owner;* 1.121 but if a man feed to sell, there shall Tyths be payd for those, for with the first people live, which manure the land of which the Tythes are payd, for so is Fitzh. Nat. brev. 53. Q. to be intended.

67.

WIldgoose versus Wayland in Cancellar.* 1.122 This question arose, If A. be seised upon trust and confidence to the use of B. and his Heirs, and A. selleth the land to one that hath notice of the trust, to whose use shall the Vendee be seised? Also it was moved if before the sale one come to the Vendee, & say to him, take heed how ye buy such land; for A. hath nothing in that but upon trust to the use of B. and another comes to the Vendee, and saith to him, It is not as he is infor∣med, for A. is seised of this land absolutely, by which the Vendee buyeth the land; if this first Caveat given to him, ut supra, be a suffi∣cient notice of the trust or not: And the Lord Keeper sayd it is not, for flying-reports are many times fables and not truth; and if it should be admitted for a sufficient notice, then the Inheritance of e∣very man might easily be slandered.* 1.123

Cook

It was holden in Bothes case in the Starchamber, that if a man sayd to another, take heed how you publish such a Writing, for it is forged, and notwithstand∣ing the party doth publish it, this is a sufficient notice to the pub∣lisher that the Deed was forged: And upon that the Lord Popham at the same time put this case,* 1.124 If one say to me, take heed how you en∣tertain or receive A. B. for he hath committed such a Felony, and I giving no credit to the report receive the party, where in truth he had committed the Felony, now I am accessary to this Felony. To which the Lord Keeper answered, that he would not draw blood up∣on such an opinion.

68.

IF a man make a Lease reserving Rent to the Lessor,* 1.125 if he say no more, the Rent shall goe but to the Lessor; but if it be reserved generally, and doe not say to whom, it shall goe as well to the Heir of the Lessor, as to the Lessor himself.

Per Gawdy.

69.

IT was sayd by Fell,* 1.126 an Attorney of the Kings-bench, that it hath been adjudged in the same Court, that an Action upon the Statute of Hue and Cry against Inhabitants of any Hundred, will never lye by Bill, but ought to be sued by Writ, and the reason is, for that the Action is brought against Inhabitants, which are a multitude, and for that may not be in custodia Marescalli, as another private person may.

70.

A Judgement was had in an Action of Debt of 80 l. And the Plain∣tif had a Fieri facias,* 1.127 and the Sherif levyed 20 l. of the goods of the Defendant, and retorned that of Record, but non constat by the Record whether the Plaintif had received the 20 l. or not, and the Plaintif took forth a Cap. ad satisfaciend. for the whole Execution, being 80 l. and upon that the Defendant was Utlawed; and now he brought a Writ of Error to reverse that Utlary, which was reversed, for that it did appear upon Record that execution was made by Fieri fac. of 20 l. of the 80 l. and therefore the Cap. ad satisfaciend. should have been but 60 l.

71.

IF the Husband sell his land by Fine,* 1.128 with Proclamations, and live five years, and after dye, his Wife being sole, of full age, of sound memory, out of prison, and within the four Seas, and doe not make any demand, or claim of her Dower within five years after the death of her Husband, she shall be barred.

72.

A Feofment was made before the Statute of 27. to the use of a Man and Woman unmarried,* 1.129 and of the Heires of their two bodies begotten, and after they intermarried, and after marriage the Husband bargained and sold all the land in fee, to one of his Fe∣offees,

and died without issue, and after the Statute of 27 was made the Wife claymed the whole by Survivor as Tenant in tayl after possibility of issue extinct. And by the opinion of all the Court with∣out argument she can have but the Moity, because the Husband and Wife had Moities as Joyntenants, by reason of the Joyntenancy made before marriage, And yet by the Court as to the issue in tail if any had beeen, he shall have a Formdon of the whole.

73.

IF Land be holden of a Subject,* 1.130 and the Tenant sells the land by Fine, with Proclamations, to I. S. in tail, the Remainder to her Majesty in fee, The Tenant in tail dyes his Issue within age, The Opinion of the Court was that the Issue shall not be in ward to the Subject if the Queen do not assent to her Remainder, for that the te∣nure and services are gone and extinct by the Fee simple to the Queen, which may hold of none. And so the issue in tail shall be in ward to none.

74.

IF a man have goods to the value of 100l. and is indebted in 20l. and he deviseth and bequeatheth to his Wife by his Testament the moity of all his goods to be equally divided between her and his Executors,* 1.131 and make his Executors, and dieth, And the Executors pay the 20l. yet the Wife shall have the moity of the whole estate, viz. 50l. without any defalcation, so that the Executors have Assets besides.

75.

IN a Prohibition and the Case was this,* 1.132 the Farmor of a Parsonage sued in he Spirituall Court for Tithes of Saffron against a Vicar; The Vicar pleaded that time out of memory of man, the Vicar and his predecessors have had the Tithe of all Saffron growing within the parish.* 1.133 The Plaintif pleaded that the land, where the Saffron was growing this year, by the space of 40 yeares next before had been sown with Corn, whereof the Parson and his predecessors have had the Tithe. And the Spirituall Court would not allow this Plea. For which the partie prayed a Prohibition.

Tanfield.

The right of the Tithe commeth in question between the Parson and Vicar, Howbeit that the Farmor be made partie to the suit, and for that the right of Tithes being in question between two Spirituall men,* 1.134 This Court hath no Jurisdiction. And this very point was adjudged

30. Eliz. inter Hunt and Bush, in this Court, that in such case the par∣tie shall have a consultation.

Popham

The one of the parties is a man temporall, and so was it not in your case. Sic nota, that by the Spirituall law, the Vicar shall have Tithes of Saffron of land new∣ly sown with Saffron, albeithat before the Parson had the Tith of that land being sowen with Corn.

76.

NOta, that by the course of the Kings-bench a man may have Oyer of the deed after imparlance,* 1.135 but not in the Common place. Q.

77.

BEckford brought an ejectione firme against Parnecote,* 1.136 and the Case upon the speciall Verdict was found to be this, That one Par∣sons was seised of certain land in A. and had issue four Daughters, viz. Barbera, Johan, E. and Mary, and made his Will in writing, And by the same Will, he devised all his land in Aldeworth to Barbera and Johan two of his daughters, and made them two his Executors, and after he purchased other land in Aldworth, and a stranger was de∣sirous to purchase this land of him newly purchased, And he said that that land should goe with the residue of his land to his Execu∣tors, as his other land should go; After the said Testator made a Co∣dicill and caused it to be annexed to his Will, But the Codicill was of other things, and mentioned nothing of this land, and whe∣ther this new purchased land shall pass by the Will, without new publication of the Will for this land, was the question.

Moor

I think that the land newly purchased shall pass, and to prove that he said, that the reason in Bretts case 340. Com. for which land newly purchased shall not pass, is by reason that there is no manner of new publication, but in our case there is new publication, and in Tri∣villians case 4 M. 143. where cestui quae use made a Will, And then the Statute of 27 H. 8. of uses came, now this Will was comptrou∣led, * 1.137 but by a new publication it may be made good, and he cited 44. E. 3. 12. and 44 Ass. 36.

Atkinson è contra.

For this Will ought to be war∣ranted by the Statute, otherwise it is not good, and the Statute doth not enable him which hath no land at the time of the devise, to de∣vise land, and the words of the Statute manifest this, which are, Where any person or persons having any land, holden &c. So by the express words,* 1.138 if he have no lands at the time of the Devise, he may not Devise, as appears plainly in Brets case, allso it appears that words out of a Will, will never make that to pass which was intended be∣fore,

and with that agreeth the Lord Cheney his case, and the case of Downhall and Catesby lately adjudged, and in this case, allbeit the Testator allowed this Will after to be his Will,* 1.139 yet this shall never make this land newly purchased to pass without express publication of this land.

Clinch Justice sayd, it seemed to him that the land newly purchased shall pass; for after that he had made his last pur∣chase, the Testator heard the Will read, and by that he devised all his lands in Aldworth, and then knew that the land newly purchased lay in Aldworth, and upon reading of the Will he allowed it, and so I think that the new purchased land shall pass as well as the other, and that this allowance upon the reading is a new publication

Gaw∣dy Justice è contra

For if I make my Will, and by that devise all my land in Dale, and after I purchase other land there, and one after∣wards shews me the Will, and demands of me if it shall be my Will, and I answer, it shall, I say that this land newly purchased shall not pass;* 1.140 and in this case howbeit that the reading of the Testament, or annexing of the Codicill be a new publication, yet it doth not manifest the intent to be that more shall pass by that than he intended at the first; and allso the new reading of the Will, and the annexing of the Codicill may not properly be termed a new publication as this case is;* 1.141 for here was not any Controlment, and for that the Will needs not any new publication, by which it seemeth that with∣out any express publication for this land newly purchased, this land shall not pass; for the things which are found to be done are but al∣lowances, and no new publications.

78.

HArecourt brought a Writ of Error upon a Judgment given in the Common-place,* 1.142 and assigned for Error for that the Judgement was that the now Defendant should recover xx l. assessed to him per Jnr. nec non x l. bassessed to him hic per Jur. where it ought to be per Cur. Yelverton prayed that it might be amended, for that the Record in the Common-place was right, and the Misprision which made this Error was in the Clerk which certified the Record; and the opinion of the Conrt was, that if it were so, it should be amended; and therefore they sayd they would have the Record it self brought out of the Common-place thither to be viewed whether it were so or not.* 1.143

Worley Clerk

The Justices of the Common-place will not suffer the Record to be brought hither.

Popham

That is no new President that the Record shall be brought hither; for I have seen it done before this time: But after in truth the Justices of the Com∣mon-place would not send their Record into the Kings-bench; and therefore Cook the Queens Attorney prayed that it might be amend∣ed.

Popham

It may not be amended, for that I have spoken with the Justices of the Common place, and they say, that the Record was at the first as it was certified, viz. Iur. pro. Cur.

and after the Record was certified, it was amended by a Clerk without any Warrant.

Cook

Allbeit that it was so, yet under Correction it is amendable, for it is the misprission but of a Clerk, and that of a Letter onely, viz. of I. for this letter C. for the word is written Jur. short, where it ought to have been Cur,* 1.144 and so amendable by the Statute of 8 Hen. 6. Curta è contra, for it is parcell of the Judgement, and you never saw the Judgement of the Court amended, for which it cannot be a∣mended here.

79.

EAst Executor of I. S. brought an Action upon the case of find∣ing and Converting of certain goods,* 1.145 against Newman, And upon not guilty pleaded, the Jury found this speciall Verdict, viz. That the Testator was possessed of divers goods, and them lost, and the Defendant found them, And knowing them to be the goods of the Testator upon demand denied to deliver them, And if this deniall was a Conversion they prayed the discretion of the Court.

Fenner

I think that the deniall is a Conversion;* 1.146 for when I lose my goods, and they come to your hands by finding, and you deny to deliver them to me, I shall have an Action of Trespass against you, as 33. Hen. 6. is.* 1.147 And the very keeping of goods by an Executor shall be counted as an Administration; and by the same reason, the deniall here shall be counted a Conversion.

Gawdy

I am of the same opinion, for by 2 of Hen. 7. If I deliver to you Cloth to keep, and you keep it negligently, I shall have detinue or an Action upon the case, at my pleasure, and by 20 Hen. 7. if a Baker contract for Corn, and the party do not deliver it at the day, the party may have Debt or an Action of the case.

Tanfield

There was a case in this Court, 30 Eliz. for the finding and Conversion of a horse. But here was no request made by the Plaintif to deliver the horse; For which Judgement was given against the Plaintif.

Curia

This is not like our case, for the request and deniall makes all the wrong in this case.

& Adjornatur.

80.

WIseman brought a Writ of Error against Baldwin,* 1.148 upon a Judgement given in Trespass in the Common place upon a speciall Verdict, which was, that Baldwin was seised of 24 Acres of Land, and made his Will, and by the same devised his said

Land to Henry his youngest Sonne when he should accomplish the age of 24 years, upon Condition, that he should pay 20. l. to the Daughter of the Devisor; And if he shall happen to dye before his age of 24 years, then he willed that Richard his eldest Sonne shall have the same Land, upon Condition, that he should pay to the said Daughter 20. l. And he willed further by the said Will, that if both his Sonnes failed of payment of the said 20. l. to his Daughter, that the said Land should remain to his Daughter. And after this Devi∣sor died, and Henry his younger Son entred after the age of 24 years, and did not pay the said 20. l. to the Daughter, and Richard the el∣dest Son did enter upon him; and whether his entry were lawfull or not was the question. Cook Attorney said, it was a meer Limita∣tion and no Condition, and by consequence the entry of the eldest Sonne is not lawfull, and to prove that he cited a Case which he said was in Justice Dallisont reports 9 Eliz. where a man devised Land to his youngest Son, upon Condition of payment of a certain sum of money to his Daughter, as our case is, The Remainder over to another of his youngest Sonns, and the first Devisee entred, and did not pay the money; and he in Remainder took advantage of that, and so in our case, by the Devise Richard is to have nothing, if Henry the youngest Son did not die before 24 yeares, and the intent of the Devisor appears that his Daughter shall have the Land for non payment of the money; And therefore if the Heir enter for the Condition broken he destroies the whole intent of the Devisor; And therefore the entry of the eldest Son is not lawfull.

Godfery

I think it is a meer Condition, for so are the words. And then when the word subsequent, limit a Remainder to the Daughter for default of payment, that is not good, and he denyed the case cited out of Justice Dallison, for he said he was dead long before An. 9 Eliz.

Gawdy

I take the case of 29 Hen. 8. 33. to be a Limitation, and no Condition, for there a man devised to the Prior and Covent of St. Bartholomewes, Ita quod reddant decano & capitulo sancti Pauli 16. l. per An. And if they failed of paiment, that their estate should cease, and that the Land should Remain to the said Dean and Chapter, and their Successors. And it seemeth there, that the Dean and Chapter for non payment shall not enter; But I think the contrary, and I think in this case it is a Limitation and no Condition.* 1.149

Fenner

If I make a Lease for life upon Condition, with Remainder over, may my Heir enter for the Condition broken?

Godfry

Yes Sir.

Fenner

Nay tru∣ly, for then he shall defeat the Remainder, which is well limited by me before, the which I may not do, and this is the reason; if I make a Lease for life upon Condition, and after grant the Reversion over, that before the estate the Condition was gone, for that, if I re∣enter I shall defeat my own grant

Gawdy

Per 29. Ass. If a man devise

to one upon Condition, that if he shall be a Chaplin, to remain over to a Corporation, and the Tenant was made Chaplin, by which the Heir entred, and an Assise was adjudged maintainable against him, for his entry was not lawfull.

Clinch

The intent of the Devisor appears, that for default of payment, the Daughter shall have the Land, and therefore the Sonne shall not enter. And Wilcocks case in this Court, was, that a man seised of a Copyhold in the nature of Burrough English, surrendred that to the use of his Will, and by his Will de∣vised the Land to his eldest Sonne, upon Condition that he should pay to the youngest Sonne x. l. And after for non payment the young∣est Sonne entred, and his entry was adjudged lawfull.

Gawdy

Wee three are agreed, that it is a Limitation and no Condition, by which the first Judgement was reversed.

81.

PYne of Lincolns Inne brought an Assumpsit against Widow Hide as Executrix of her Husband,* 1.150 and declared, that the Testator in Consideration that the Plaintif had leased to him certain Copy∣hold-land, he assumed to pay to him 100. l. And the Defendant de∣murred in Law, for that the Action is not maintainable against any Executor upon an Assumption of the Testator.

Popham

For the Contrariety of opinion in this Case between the Judges of the Com∣mon-place and us, we will make it an Exchequer-Chamber case, and so try the Law.

82.

ONe Jackson prayed a Prohibition,* 1.151 and shewed for his Cause, th•• the Parson sued him in the spirituall Court for tithes, And howt the Statute of 13 El. cap. 20. &c. That if any Parson make a Lease for years of his Parsonage, and absent himself by the space of 80 daies, that the Lease shall be void, And the Parson shall forfeit the profits of his benefice for a year, and the Statute of 14 Eliz. cap. 11. &c. That all bonds and Covenants for suffering or permiting any Parson to enjoy any Benefice, or to take any Benefice, or to take the profits and fruits thereof shall be adjudged of such force and Validity, as Leases made by the same persons of benefices and not otherwise, and after the Statute of 18 Eliz. cap. 11. &c. appoints, that the Ordinary after complaint made, and sentence given against any such incumbent, whereby he ought or shall lose one years profits of his Benefice, shall grant Sequestration to one of the inhabitants of the same Parish, as he shall think meet; And upon default there in by the Ordinary, that it may and shall be lawfull to every Parishoner

where the Benefice is, to retein, and keep his or their tithes, and likewise for the Church-wardens to enter and take the profits of the Glebe lands, and other Rents and duties of every such Benefice, to be imployed to the use of the poor, and he shewed how that the Par∣son made a Covenant and a Bond, that he would permit I. S. to take the profits of his Benefice for a year, And whether this were such a Lease, for which the Parson ought to forfeit the pro∣fits, ut super, he prayed the opinion of the Court, and it seemed to them it is not; the reason seemeth to be, because he doth not aver him to be absent above 80 daies in the same year.

83.

PEr Popham

If a man find my horse,* 1.152 and after ride him, and then delivers the horse unto me, and I bring an Action of Trover for the Conversion, It is no plea that you have delivered the horse to me before the Action brought, for you ought to answer to the Conversion.

84.

CHesson brought an assumpsit against D. K.* 1.153 and declared that where I. S. was indebted to him in 64l. The Defendant in con∣sideration that the Plaintif would abate 10l. parcell of the said Debt, and also would give day to the said I. S. untill Michaelmas then next following for payment of the said 54 l. residue, That the next day after she the said Defendant would become bound to the now Party for the payment of the said 54. l. at the said Feast of St. Michael, and the Plaintiff in facto saith, that he hath abated 10. l. parcell of the said 64. l. and yet the Defendant did not become bounden for the payment of the said 54. l. residue, per quod actio accrevit. The De∣fendant pleaded in Barre, That after the said day given, and before Michaelmas, scil. tali die, the Plaintiff entred a plaint in London, for the Debt aforesaid of 64. l.* 1.154 and then caused the said I. S. to be arrested, and demanded judgement, si actio.

Tanfield

The Declarati∣on is sufficient, for you have delared, that you have abated part of the debt, but you have not shewed how that was defaulked, and therefore not good, for we may take issue upon that if we will; and if a man be bound in an Obligation, to discharge me of certaine rent, it is no plea for him to say, that he hath me discharged, without shewing how; for that, that I may take issue upon tha••. Also to the second matter, the Plaintiff ought not onely to give day of payment, but also to forbeare to molest I. S. untill the day be come.

Cook to

the contrary,

And as to the first poiut it seemeth, that the discharge ought to be upon the entring into bond;* 1.155 for, if a man make a Con∣tract for 10. l. and after enter into bond for 5 l. parcell of that, all the Contract is gone, as appears per 3. H. 4. And as to the second point, I think the promise is broken by the Defendant, for that he did not enter into Bond the next day after the assumption made.

Gawdie

I doubt whether the Declaration be good or not; for, it seems to me that the Plaintiff ought to shew how he hath defaulked the 10. l. part of the 64. l. for, it may not be intended a defaulking in Law, but of a defaulking indeed, and for that it is not like the case cited in 3. H. 4. But the Plaintiff ought to doe an Act him∣selfe, And 17. Eliz. A man was bound to allow, ratifie, and confirm a term for yeers, And it is no Plea to say that he hath that confirmed, But he ought to shew how, because every Confirmation must be by Deed; but if the Declaration were good, then perchance the Barre would not be good: And howbeit that Mr. Attorney hath said, that there is a breach for not entring into Bond, yet the Plaintiff may not sue,* 1.156 if he have not performed his promise.

Fenner

It will be hard to make the Declaration good; for, when one promiseth to defaulk his debt, this shall be intended a lawfull discharge, which cannot be otherwise than by writing, and per 20. E. 3. Accompt. If a man be bound to acknowledge a Statute,* 1.157 and he doth acknow∣ledge the same, but yet keeps the same in his own hands, this is no performance. And as to the second point, when one promiseth, in confideration of one thing to doe another, there ought to be performance of the first, as if a man be bound to make a new Pale,* 1.158 as 9. Edw. 4. 20. & 15. Edw. 4. 2. 3. is, having the old pale for his labour, there if the old pale be taken from him, he is not bound to make the new pale.

Popham

I am of the same opinion.

85.

DIxon brought an Action upon the case against Adams,* 1.159 and de∣clared that whereas I. S. was indebted to the said Adams in 60. l. forwhich the said Adams arrested the said I. S. and the said Dixon was 〈◊〉〈◊〉 for the said I. S. in the said suit, and the said Adams re∣covered in the said suit, and after sued forth a Scire facias against the said Dixon being bail, whereupon the said Adams, in confideration that the said Dixon would pay him the 60. l. the said Adams assumed to assigne over unto him the said first Obligation, in which the said I. S. was bound unto him, and upon which the first action was brought, and the judgement thereupon had, and the Plaintiff dixit in facto that he had paid the 60. l. to the Defendant, Sed ••radictus defend,

promissionem & assumptionem suas minime curans, hath not assigned o∣ver to the Plantiff the said Obligation and Judgement, per quod act. accrevit, and Judgement was given for the Plaintiff, for the conside∣ration was holden good.

86.

ROsse brought an Ejectione firme against Thomas Ardwick,* 1.160 and the case was such, that one Norwood was seised in see, and leased to one Nicholas Ardwick and his Assignes for his own life, and for the lives of Thomas, Andrew, and John Ardwick, and after Norwood the Lessor leased the Reversion to Rosse the now Plaintif for 21 years, and after Nicholas Ardwick made a lease of the same land to Thomas Ardwick to hold at will, and dyed; and if the estate of Tho. was deter∣mined by the death of Nich. was the question.

Johnson

There are two points in the case; the first, if by this word Assignee an Occupant shall have the land, and I think he shall not: And the second point is when a lease is made to one, and his Assignees, for his own life, and the lives of two others, if now his own life confound the other two lives, for that that it is greater to the Lessee than the other two lives, and he said the Lessee hath no estate but for his own life, and when he dyed the state is determined; and to prove that he cited the o∣pinion of Knightley in 28 Hen. 8. 10. Where he saith if a lease be made to one pur auter vie, without impeachment of Wast, the re∣mainder to him for his own life, that now he is punishable of Wast, for that, that when the remainder is limited unto him for his own life,* 1.161 this drowneth the estate pur auter vie, which was in him before. And by 3 Edw. 3. If a lease be made to two for their lives without impeachment of Wast, and one of them purchase the Fee simple, and dye, now his heir shall have Wast against the Survivor. And I have heard that this was the case of the Lord Aburgaveney for a house in Warwick lane.

Cook è contra

And the case is no more but that a lease is made to one and his Assignes for his own life,* 1.162 and for the lives of two others; and I think that all may stand together; for a man may have an estate for his own life, the remainder for yeares, and both may stand together in him simul & semel; for that, that al∣beit that the Lessee may not have that during his own life, yet he may dispose of that, and by that means shall have the benefit, and so in this case, and allso an estate pur auter vie shall be in esse in the Lessee for the benefit of the Occupant, and the inconveniencies shall be exceeding many in this case, if the estate doth not endure for all their lifes, for the Statute of 32 H. 8. inableth Tenant in tayl to make leases for 3 lives or 21 years, and usually Tenants in tayl make such leases as these be, and for that the generality of the case ought great∣ly

to be regarded; and there was a case adjudged in the Common place between Chambers and Gostock,* 1.163 where a lease was made to two for their lives, and the life of a stranger, and one of the Lessees dyed, and the Survivor granted the land for his life, and the life of the stranger,* 1.164 and it was no forfeiture; and allso it was Burdels case in the Common-place, 32 Eliz. where a lease was to him for his own life, and the lives of two others, and a good lease for all their lives:* 1.165 And for the point of the Occupant there is no question but that the state of him that first enters is better than the state of him that enters under the state of the Lessor.

Gawdy.

The cases put by Mr. Johnson are not like to the case in question,* 1.166 and I will agree them; for here the greater estate precedeth the lesser; I hold that a lease made to one for his life, the remainder to him for ano∣thers life, is good, for he may it grant over; and so I think in this case, that so long as any of the lives remain living, that the estate remains.

Fenner

I am of the same opinion, for I think that the state pur auter vies is in the party to dispose at his pleasure; so Judg∣ment was given for the Defendant.

87.

HArding brought an Action of Trover of goods against Sh••r∣man, * 1.167 and declared of a Trover at D. in the County of Hunt. The Defendant pleaded that he bought the goods of one I. S. at Roiston, in the County of Hertford in open Market, and demanded Judgement; The Plaintif replied that the Defendant bought the same goods of the said I. S. at D. aforesaid in the County of Hun∣tington by fraud and Covin, And after bought them again at Roiston, as the Defendant supposeth; the Defendant rejoines, that he bought the same goods bona fide at Roiston, Abs{que} hoc that he bought them by fraud, apud D. in Com. Hunt. Glanvile pleaded in arrest of Judge∣ment, that the Visne ought to be of both Counties. Gawdy seemeth to agree, but for that that Clinch and Fenner held strongly that the Visne was well awarded in one of the Counties, therefore Gawdy gave Judgement for the Plaintif, for by this speciall Traverse the buying at Roiston shall not come in question

88.

PAyton being High-Sherif,* 1.168 brought Debt upon an Obligation against his under-Sherif; and the Condition was to perform all Covenants in a pair of Indentures conteined, and one Covenant was, that the under-sherif shall keep all the Prisoners committed to him, untill they be delivered by the Law, and allso to save Mr. Pay∣ton

harmless of all escapes made by the said Prisoners. And the De∣fendant pleaded performance of all Covenants.

Godfry

The Plea is not good, for one part is in the Affirmative, and the other in the Ne∣gative. By which the Defendant ought to plead, that the Plaintif non fuit damnifieatus, and so was the opinion of the Court; by which day was given to the De••endant to amend his plea.

89.

A Man brought an Action of Trespass, for entring into an house, and breaking of his close in Dale;* 1.169 The Defendant said, that the said house and close in which the Trespass is supposed to be done, conteins twenty Acres, and is, & at the time of the Trespass supposed, was his Freehold. And the Plaintif replyed, quod locus & clausa in quo supponitur transgressio, est anum messuagium, and makes him a Title to it. To which the Defendant pleaded non Cul. And it was found for the Plaintif, and for that that the Plaintif by his Re∣plication made to him Title but to a messuage, and doth not main∣tain his Declaration which was for the messuage and the close; therefore it was awarded quod querens nihil capiat per Billam, sed qua∣re, if this do not amount to a discontinuance of the close onely, and so helped by the Verdict.

90.

THomas Allen brought a Writ of Debt against William Abraham, upon an Obligation bearing date in October.* 1.170 The Condition, was, that whereas the sayd Thomas Allen, at the request of the above bounden William Abraham, standeth bound together with the sayd William unto one J. S. in an Obligation for the true payment of 11. l. the 15. day of May (the which May was before the date of the sayd Obligation whereof the Action is brought) if the said W. A. do save and keep harmless the sayd T. A. of and from the said Obligation, that then, &c. The Defendant pleaded payment secundum formam & effectum condition is praedictae, and upon this Plea the Plaintif demur∣red in Law, and Judgement given for the Plaintif, for the Defendant ought to plead non damnificatus.

91.

HUntley brought a Writ of Accompt against Griffith,* 1.171 and the case was, that one devised a certain sum of money to a Feme covert, And the Husband and Wife made a Letter of Attorney to the Defen∣dant to receive the same money of the Executor, who did receive it

accordingly to the use of the woman, And the Husband and Wife both dye, and the Administrator of the Womans Husband brings this Action. Tanfeild argued that the Action is not maintainable, for when the Legacy was devised to the woman, the Husband and Wife ought to joyn in the Action, and if the Wife dye, the Husband hath no remedy. And when the Husband and the Wife make a Let∣ter of Attorney to receive the money, this principally is to be sayd the act of the woman, and the Husband joyneth with her but for conformity, and for that it appears in 19 Eliz. 354. if Baron and Feme levy a Fine of the Wives land, and the Wife onely declares the use of the Fine, it is good; and by 16 Ed. 4. 8. If a man be a Recei∣ver to a woman sole, which afterwards takes a Husband, and he and his Wife assign Auditors to the Receiver, they both shall joyn in an Action of Debt for the Arrerages. Altam è contra, and sayd that the concourse of all our Books are, that when money is delivered to de∣liver over to another,* 1.172 that other shall have an Action of Accompt, allbeit that before that time he had not any property; And 6 Ed. ••. 1. that proveth.

Gawdy

It seems to me the Action is well brought, for the matter whereupon you stand is the Letter of Attorney, and I say if the Husband sole had made the Letter of Attorney,* 1.173 it had been well enough; and when the money is received to the use of the Husband and the Wife, now by that the Husband hath interest.

Pop∣ham

I am of the same opinion; for if Debt be due to a woman sole upon an Obligation, and after she take an Husband, and the Husband sole makes a Letter of Attorney to J. S. to receive that, and J. S. receives the same, now the Husband sole shall have an ac∣compt against J. S. Fenner accord. so Judgement was given for the Plaintif.

92.

THe Lady Gresham brought a Scire facias upon a Recognisance a∣gainst William Man as terr.* 1.174 Tenant. The Defendant pleaded in abatement of the Writ, that one Bedingfield was seised in Fee of three Acres of land not named, Judgement, si execut. &c. And the issue was if the aforesaid three Acres of land were the land of the afore∣said Bedingfeild or not, and the Jury found that B. and J. S. were Jointenants of the said three Acres, and whether this Verdict hath found for the Plaintif or Defendant was the question.* 1.175

Gawdy

I think it may never be said the Land of Bedngfield onely. And to prove that he vouched 28 Hen. 8. Dyer 32. in debt for Rent, the Plaintif decla∣red of a demise of 26 Acres rendring the said Rent; The Defendant pleaded that the Plaintif demised to him 26 Acres, and 4 Acres more, without that that he demised the twenty Acres onely, And the Jury

found that he Leased but 22 Acres, and there that was good, for the Defendant hath confessed a demise of 26 Acres, and then the Ver∣dict should have been, that the 4 Acres ultra were not demised; and allso he said, when two men made a Feoffment, the Feoffee shall be in by both, the which is a strong proof, that the one sole is not seised.

Fenner

According to the matter in question, I think it is found for the Plaintif, for the pretence of the Defendant is, to have a compa∣nion, against whom the Scire facias shall be as well brought as a∣gainst himself. And in 46. Edw. 3. That in casu proviso, if issue be taken upon an Alienation in Fee,* 1.176 and the Jury find an Aliena∣tion pro Termino vitae, this is a Verdict good enough, and the Plain∣tif shall recover, for the Alienation to the Defendants Inheritance is the question. And whether it be in Fee or for life, it is but form, and so in this case.

Popham

by pleading of the truth the Defendant might have been holpen, but not as he hath pleaded here; as if one plead his Freehold, and another say his Freehold abs{que} hoc that it is the Freehold of the Plaintif, and upon that, they are at issue, And the Verdict finds that the Plaintif and Defendant are Tenants in Common, Now this Verdict is found for the Plaintif; for he that makes the first lie shall be triced, and this was the Defen∣dant.

Fenner

In this case, one Tenant may not have an Action a∣gainst an other,* 1.177 and it was agreed in this case, if there are two Join∣tenants, and the one make a Statute, and after joines with his com∣panion in a Feoffment of that Land, now the moity of the Land may be extended upon this Statute.

Godfry

When it appears unto the Court, that there is another against whom the extent shall be, then the Plaintif his Writ shall abate.

Gawdy

No truly, for by 44 Edw. 3. if a Writ of Dower be brought against the issue in tail which is remit∣ed, and the Defendant plead ne unques seisi que Dower, and the Ver∣dict find the remitter, yet the Plaintif shall have the Judgement, for the Tenant if he will have advantage of that ought to plead it.

93.

THe Parson of Ramesey ••ued in the spirituall Court for Tithes of Asp,* 1.178 and a Prohibition was awarded. And Fenner said that it was adjudged before that time that Asp should not pay Tithes, and also it was agreed if a man cut trees for Housboot,* 1.179 Hedgboot, Ploughboot, Cartboot, and Fireboot, Tithes shall not be paid of them.

94.

NOta per Fenner Justice,* 1.180 that an Action of accompt shall be main∣tainable against a servant, but not against an Apprentice.

95.

HOme was indicted for that he had spoken against the book of Common prayer.* 1.181

Yelverton

The Indictment as it appears is ta∣ken before the Lord Anderson and Baron Gent, Justices of the Gaol delivery, and hath not shewed that they are Justices of Oyer and Terminer, nec de Assize, as the Statute appointeth, and for that it is void, Also the Indictment is quod recusavit uti communi precati∣one et Administrare sacramenta, and doth not say appointed by the book of common prayer, also the Defendant was twise indicted, and upon the second Indictment the Judgement was given before the said Justices, that he should be deprived of his Benefice, and this is a Spirituall act, the which the Temporall Judges have not to deal withall.

Fenner

I doubt whether they may give Judgment of de∣privation, albeit the Statute say that the Offendor shall be depri∣ved ipso facto, no more than the Statute of 5. Ed. 6. which saith thatfor the striking in the Church the Offender shall be excommuni∣cated ipso facto. Also it doth not appear whether the Defendant be Curate of the parish where he refused to say divine service or not, and if he be not, then his refusall is not punishable by the Statute.

96.

COok Attorney generall demanded this question of the Court,* 1.182 if there be Disseisor and Disseisee, and during the Disseism, the Disseisee when he hath nothing but a right, levies a Fine to a stranger▪ If by this Fine the right of the Disseisee be gone, and if the Dissei∣sor shall take advantage of that.

Popham and Gawdy

Nay truly.

97.

RObins brought an ejectione firme against Prince, and upon the speciall Verdict Mr. Frauncis Moor arguing for the Plaintif did observe three points in the case,* 1.183 The first was, when a Chaplin which is beneficed above the value of 8l. is admitted and instituted into another benefice,* 1.184 and before induction gets a qualification, and after is inducted, If now the benefice which he had first, be void, for that, that the qualification comes between the Admission and the in∣duction. The second point is, when the dispensation is entred in the Chancery in a paper book,* 1.185 and not enrolled in parchment, If this be a sufficient enrollment, for that that the usuall manner of in∣rollments is in parchment. And the third point was, when a Parson is inhibited by the Arch-Bishop that he shall not intermeddle with the Benefite,* 1.186 by meanes whereof the Parson is absent by the space of

lxxx daies, If such absence shall make a lease made by the Parson void. And as to the last point all the Judges agreed, that such absence doth not make the lease void: For it must be a voluntary absence, for such an absence the Statute doth intend, and this absence is by reason of an inhibition. And the case was argued for the other side by Mr. Crook, but I could not hear him, and the next Term it was ar∣gued again by Mr. Tanfield for the Plaintif, and lie said that the prin∣cipall point of the case is whether the first benefice be void, insomuch that the incumbent hath gotten a qualification before induction into the second benefice; And I think the first is void, for the intent of the Statute was that the cure might be well served, and that poor people might be well relieved; And as no man may serve two ma∣sters, so no man may serve two Cures, and before induction the Church is full,* 1.187 and the Parson hath Curam Animarum, and is rector Ecclesiae before induction; and if a gift be made to such a Parson be∣fore induction, it is good; and so if he alien by consent of the Patron and Ordinary it is good.* 1.188 And if the grantee of the next Presentation present a Clerk that is admitted and instituted, and dyes before induction, yet the graunt of the grantee is executed, and he shall not present again.* 1.189 And so it was adjudged in Colsills case M. 10. & 17. Eliz. Rot. 4. And the wordes of the Statute of 22. H. 8. cap. 13. are, that every Dutchess, Marquess, Countess, and Baro∣ness, being Widowes, may have two Chaplins, whereof every one of them may purchase licence or dispensation to receive have and keep two benefices, with care of Souls, And before induction he re∣cepit, habuit & custodivit two benefices, and then he was not qualli∣fied, So the first was void; and as to the point of the enrollment it is clear, there ought to be a parchment roll, for that was the meaning of the law, and not to make an entry in the paper book. Lawton con∣tra, for all the body of the act of 22. H. 8. extendeth to the possession of the benefice, and the Proviso ought to be construed according to the body of the act, and before induction he doth not offend the law, and therefore the dispensation which comes before the indu∣ction comes in good time, for if the Kings Tenant make a Feoffment, and Letter of Attorney to make Livery and seizin,* 1.190 this is no offence, for if he after purchase a Licence of Alienation, and then Livery and seisin is made, this Licence is good.

Gawdy

Before induction the first Benefice is not void. And you shall find 2 & 3 Mar. 130. that issue was taken upon the induction; but a Common person may not change his presentment after admission and before induction,* 1.191 and Plenarty is a good plea against a Common person in such a case; But yet before induction he is not a full Parson to all intents, for a grant of an Annuity before induction is not good, Com. 526 for the inducti∣on makes it notorious that he is Parson; then when he after his ad∣mission

gets a qualification,* 1.192 it seems to me that the qualification shall not help him: for the Commencement of the fault was before the qualification, and the Induction after relates to the admission, and to prove that he cited 1 Mar. 99. where a man bought beasts out of the Market, and gave 5. s. to have election to have the refusall in the Market the next day, and in the Market he agreed to have the beasts, and paid Toll, and holden clearly that this shall relate to the con∣tract out of the Market (so in this case) Allso here the words are, shall take, receive, and have (after qualification) two Benefices. And before the induction he takes the benefices, in this case, for before the induction,* 1.193 and at the time of admission, the Ordinary said to him, Accipe curam tuam & meam. And if a Parson be once qualifi∣ed, and after take a second Benefice, and then his Master dies, yet his qualification remaines, so is it if he depart from the service of his Master. Then for the second point for the enrollment, it seemeth it is good, for that it hath been allwaies so used. For the Statute which saith, a man arraigned of Treason shall be tried by people of like condition; yet if an Esquire be arraigned of Treason, he shall be tried by people of meaner condition, as appears by 1 Mar. 99. for that it hath been allwaies put in ure, and therefore shall be intended that it was the meaning of the Law.

Fenner Contra

For before in∣ductionthe Incumbent hath no interest in the Parsonage, and the Pa∣rishoners have no notice of him, and he may not serve the Cure be∣fore Induction, and then if our Law do not repute him Parson, then the Statute doth not intend to make the first Benefice void, before that he is full Parson in another Benefice. Allso this word (have) in the Statute, is a word Possessory, and ought to be full to all en∣tents.

Popham

I think the dispensation will not help, for by the Admission as to the Cure of souls he is a full Parson, and allso such a Parson is a sufficient Parson as to the Patron, and to devest the inte∣rest into the Parson.* 1.194 Allso he is a full Parson as to a stranger, for if 7 years incurr between the Admission and institution before In∣duction, no Laps shall acrew;* 1.195 But as to the matter of the possession and fruits of the Benefice, he is not Parson before Induction. And if the Law no not make the first Benefice void in such a case, then one Parson may retain 20 Benefices together, for first he may be admitted into one, & before Induction into that, admitted into another, & sic in infinitum, the which was never the meaning of the makers of the Law, and if before the Statute of 21 Hen. 8. a man had taken two Benefi∣ces, that had not been good without a perinde valere in the spirituall Law,* 1.196 and the meaning of the Law was, to help one that was a Chap∣lin to Noble men, and not such which are hunting Chaplins which hunt after Benefices.

Then to the second matter, I think the enrollment is good, and

but an offence in the Clerk which is finable, and not in the par∣ty, for the party may not procure the Clerk to make his entry in an another course than the custom is, And therefore no fault in the party.

At another day in Mich. 39 & 40 Eliz. this case was moved a∣gain, and Cook Attorney seemed that the dispensation which comes after Admission and Institution, and before Induction, comes to late, and is not holpen by the Proviso of the Statute of 21 Hen. 8. for the words of the Statute are, shall have, retein, and take a second Bene∣fice. And after admission and institution he may not take his Bene∣fice, the which he had before, for he is Parson to make a plenarty, and to many other purposes, before Induction. Gawdy seemed that the admission and Institution made him full Incumbent, as to the Patron and to the Parson himself, But as to the possession of the Church he is not full Parson before Induction, for 5 Eliz. in an issue upon plenarty, it is there taken, that the Church is plena & consulta per admissionem & institutionem before Induction. And if any other con∣struction shall be made in this case, the Letter of the Law shall not be observed, viz. shall have, receive, and keep, for he may not have a thing the which he had before. And it seemes to me, that neither by the intent nor by the Letter of the Statute it is holpen.

Fenner è contra

For 14 Eliz. fuit adjudged upon an issue, Prebend. or not Pre∣bend. that before Induction he was not Prebend. But the reason for which a Quare impedit doth not lie after the Admission and Institu∣tion after six months, is for that, that against every Patron, the Presentation is onely excepted,* 1.197 and before Induction the Parson if he will, may refuse a Benefice, for a Parson which is absent, may be presented and admitted to a Benefice;* 1.198 and if he may not refuse it, it is very mischievous to him. And the Presentation is the Act of the Patron, and the Admission is the Act of the Ordinary, But the In∣duction is the Act of the Parson himself, for by that he is known to all his Parishoners, and his free consent by that is testified to accept of the Benefice to which he was presented.

Gawdy

If I grant to you prox. praesentationem, and the Incumbent die, and the grantee present onewhich after admission and Institution dies before Induction, whether is the grant executed or not, quasi diceret quod sit.

Fenner

I have asked the opinion of the Judges of our house, and they are of my o∣pinion. But I agree with my Brother Gawdy for his last opinion, for after admission and Institution,* 1.199 the Church is full against himself be∣fore Induction. Gawdy Truly it is full against all Common Persons.

Clinch

The Induction is like to a livery of seision, and therefore before the Induction, the Parson is as a Feoffee is after a Deed of Feoffment delivered unto him, and before livery and seisin he is but Tenant at Will.

Popham

I agree with my Brother Gawdy, for if the spirituall Law be well understood, it will make an end of this mat∣ter

and case.* 1.200 For by their Law, if a man take two Benefices, the one is void, ipso facto, without deprivation; Yet there ought to be a sen∣tence declaratory of the deprivation, to give notice to our Law, and by the admission and institution, the Incumbent is a Parson to many purposes,* 1.201 but not to all profits, but as to the exercising of his Functi∣on he is Parson, and hath Curam animarum, and if by the admission and institution before induction,* 1.202 the presentee shall not be perfect Parson, great inconvenience will ensue, for put that a man grant prox. praesentationem to one, and he present, and his presentee is ad∣mitted and instituted, and then the presentee obtaines of the Bishop a fequestration of the profits, and will never be inducted, in this ca••e the grantor may lose his patronage. And if I bargain and sell my land, and before enrollment of the deed I purchase a licence of the Queen, this licence shall not avail, for he ought to have a pardon, and so in this case.

Gawdie

I am not of the same opinion of my Lord chief Justice that if a man that hath a benefice take another benefice that that is void before deprivation by the spirituall law: For under correction their law is otherwise; this case is now re∣ported by Cook, and adjudged that the dispensation came to late.

66.

HOO Executor of Hoo brought a Scire facias against Felix Mar∣shall, * 1.203 and the case was this, Hoo the Testator commenced a suit in the Kings-bench against one Fuller, And the said Felix Marshall became Bail for the said Fuller in the said suit, Scilicet, That if the said Fuller should be condemned in that Action, and did not either pay that condemnation, or yield his body to prison, that then Felix Marshall should pay the condemnation for him, according to the or∣dinary course of Bailes. But yet in pleading of this Recognisance he said further Et si defecerit in solutione tuuc vult & concedit quod pra∣dictum debitum levetur de terris et tenementis suis. And Gawdy Justice said he did not use any such wordes when he took Bail. And after this Bail taken, and before Judgement given in the said suit, the said Hoo the Testator released to the said Marshall all actions and de∣mands, And after, Judgement was given for the said Hoo the Testa∣tor, against Fuller, and thereupon the Testator brought a Scire facias against M. as appears before, and M. pleaded the said release, and hanging this Plea, Hoo the Testator dyed, and then the Executors brought another Scire facias against the said M. And he pleaded this release again in barr.* 1.204

Gawdy

I doubt of the case, for 5 Eliz. 217. the Covenantee released all actions, suits, quarrels, debts, executions, and trespasses, and this was before any Covenant broken. And it is there

holden that it is no barr to an action of Covenant after∣wards brought upon a Covenant after broken,* 1.205 And per. 4. Ed. 4. 40. If a Grantee of an Annuity release all actions to the Grantor before the day of payment,* 1.206 this will discharge the arrearages before accrued, but not those payments after. And by Read and Bullocks Case a release is not available to any other right or action, than such as a man hath at the time of the release, for it is against the nature of a release to take effect in tempore futuro, and in the case in question there was no action nor demand before judgement given against Fuller.* 1.207 And I doubt of the case cited in 27 H. 6. 7. where an Obligation is delive∣red as an escrowl, and the Obligee release to the Obligor all acti∣ons & after the Obligation is delivered as the deed of the party, whe∣ther this release do that discharge or not, it shall not by P. 5. H. 7. fo. 27.* 1.208 So there are many other cases there put, as if an Infant deliver a deed as an Escrowl to be delivered as his deed when he comes of full age, There I take the Law clear, that if the condition be perfor∣med at ful age of the Infant, yet this is not his deed. And so of a Feme Covert which delivers a deed as an Escrowl to be delivered upon Condition when she is sole,* 1.209 if after the deed be delivered when the Woman is sole, yet this is not her deed, for in these two last cases the first act which was the delivery as an Escrowl was meerly void. And if a man be indicted by conspiracy, and after release to the con∣spirators all actions, and after that the party indicted is arraigned upon this Indictment, and by Triall is acquitted, I doubt whether this release shall barr him in an action of conspiracy, or not. Fenner said that the Recognisance is immediatly a Debt, and for that this release shall be a Barr, for by Lytt. a release of all actions is no bar in a fieri fac. to have execution within the year, but in a Scire fac after the year it is a good bar,* 1.210 and so in this case it is a barr, which was not a bar at the first. And I see not any reason forwhich if the King re∣lease a Recognisance which is not yet broken, it should not be a dis∣charge of the Recognisance, Except it be for that, that the generall words in the Kings grant shall not extend to discharge such a Re∣cognisance without speciall words. And I think that a deed which is delivered as an Escrowl is not a deed, but onely after the delivery of that as a deed, and shall not relate to be a deed ab initio. And for that, a release made before the delivery as a deed, albeit that after that it is delivered as an Escrowl shall not discharge it. Pas. 5. H. 7. 27.

Clinch

I think that this release shall be a good barr, for if the Defen∣dant at the time when he entered bail had had his land, and had sold it afore the Judgement given against Fuller for whom he was b••il, none will deny but that this land shall be lyable, which proves that this is a Recognisance and a Debt immediately.

Popham

This is aprettie case, but there will be a difference between a duty upon a

contingent, and a duty absolute, for if I covenant to ••ufeoff you of the mannor of Dale before such a day,* 1.211 and bind my self by Obligati∣on to perform the covenants, and before the day you release to me all actions, there the Obligation is discharged, but not the Cove∣nant for the Obligation was an absolute duty, and the Covenant but contingent;* 1.212 and it seemeth that a deed delivered as an Escrowl may not be discharged by release made before that the Escrowl be delivered as a deed. And in the case at bar there is no duty but upon a Contingent, that is to say if the party be condemned and do not satisfie the Debt, nor render his body to prison. And for that be∣fore that it become a duty, such a release will never be a discharge, be∣ing but a possibility, for it hath been adjudged, that where a lease hath been made to two for their lives,* 1.213 the Remainder, which shall first hap∣pen to dye, for forty yeares, that neither the one, nor the other nor both together may grant this term of 40. yeares before it be setled, & if I release all demands before that the rent is due, the rent is gone. But it is otherwise of a release of all actions.

Gawdie

I agree that a release of all demands will discharge rent due.* 1.214

Popham

If I make a lease to I. S. for so many yeares as I. K. shall name, this I. S. may not surrender his term before that I. K. name the yeares. And he de∣nyed that the land of Marshall the manucaptor which he had at the time of the Bayl should be bound being sold before the Judgement a∣gainst Fuller, as Justice Clinch did affirm in his argument.

Fenner

There is a difference between an Action and an Interest. And after Judgement was given that the release was no bar.

99.

MAckerell brought an Assumpsit against Bachelor,* 1.215 and declared, that in consideration that the Plaintif did deliver unto the De∣fendant divers Suits of Apparell, that is to say, a Sattin Du∣blet and Hose, with silver and gold lace; and one velvet Jerkin and Hose, and one fustian Dublet and cloth Hose, to-his own proper use, the Defendant promised to pay to the Plaintif forty pound when he should be required. The Defendant pleaded, that temp••re assumptionis, he was within age, and the Plaintif replyed, that at the same time the sayd Defendant was servant and attending upon the Earl of Essex in his chamber, and that this Apparel was delivered unto him for his necessary apparel during the said time of his said service; and upon that the Defendant demurred, and the Court caused the Declaration to be read openly in Court to see of what degree the Defendant was of his Addition, and upon reading of the Record it appeared by the Declaration, that the Defendant was there written Gentleman, for which the Court agreed clearly, that Sattin with

gold and silver lace, or Jerkin or Hose of Velvet, are not necessary Apparel for a Gentleman;* 1.216 and so an Infant is not bound to pay for such Apparell; and therefore the Action for so much will not lye; but for the residue, to wit, for the Dublet of fustian, and Hose of cloth, it seemeth the Action is well maintainable, for the prices of every of them is set down severally in the Declaration.* 1.217

Popham

The Plaintif in his Declaration hath confessed he is satisfied of part of his contract, but non constat for what part of the clothes the mo∣ny received was payd, that is, whether for the necessary, or unnecessa∣ry.

Gawdy

Truly it shall be intended for the necessary Apparel.

100.

GOodale brought an Information against one Butler,* 1.218 upon the Sta∣tute of 21 Hen. 8. cap. 13. for not being resident upon his Bene∣fice whereof he was Parson, by the space of six moneths, for which the Defendant ought to forfeit for every moneths absence 10. l. And it was found by speciall Verdict, that the Defendant had demissed his Parsonage-house to another, excepting one chamber for himself, And within the same Parish had hired another house, and there kept Hospitality, and was allwaies dwelling there, And whether this be a Non-residence within the Statute, for that he doth not dwel with∣in the Parsonage-house, but inhabiteth within the Parish in another house, is the question. Clinch & Fenner were of opinion, that if he be resident within his Parish, albeit he doth not dwel within the Par∣sonage-house, that yet this is a sufficient residence within the Sta∣tute; for the Glebe land, and other profits within the Parish makes the Benefice,* 1.219 for a Benefice is derived of this word Beneficium, the which is a profit, or a commodity, and if he be resident in any part of his Parish, he may well enough execute all the Functions Spiri∣tuall, and Temporall, and keep Hospitality to relieve his Parishio∣ners; and these were the chiefest points that the makers of the Sta∣tute intended to provide for.* 1.220 And Fenner sayd, the Proviso help∣eth not; and that the words of the Statute are, That every Spiritu∣all person ought to be resident at, in, or upon his Benefice, in the disjunctive; and if that be performed in any of those points, then that sufficeth.* 1.221 But if the words were, that he shall be resident upon his Benefice, there peradventure he ought to dwell in the Parsonage-house onely.

Popham and Gawdy to the contrary;

For Residence is a commorancy, and where he hath his Tithes, that is a profit; but yet it is no Benefice intended by the Statute; for when the Statute saith that he shall be resident upon his Benefice, this shall be expoun∣ded upon the Parsonage-house; for the Statute may not be so unrea∣sonably construed, that only will compel the Parson to be resident in

any other place of the Parish, than where he hath his house. And for that Colthurst, and Be••ishins case in the Comment 20. Le Prior of Bath was seised of a Grange or Farm, called Barton, near Bath, in Fee, and he and the Covent leased that by Deed indented to H. B. and to his Wife for life, the remainder to W. B. their Son, for his life, si ipse inhabitare vellet & residens esse omnino de & super praedict. Grangium. And if it shall be intended in this case that the Lessee may be resident upon any other place than in the Grange-house, then by possibility the intent of the Lessor might be defeated utterly, which was, that the Grange-house should be repaired. Allso a reason that moved the makers of the Statute to be of opinion to make the Parsons resident, was, for that by this means the Parso∣nage-house should be well kept in reparations,* 1.222 and should not be left to the successor in Delapidations. And the Proviso in the end of the Statute will not help the matter;* 1.223 for the Proviso is, that it shall be lawfull for any Spirituall person to take to farm any Mansion-house, having but an Orchard or Garden, in any City, Burrough, or Town; so that by that they have no liberty of Non-residence by colour of the sayd Proviso.* 1.224 And Popham sayd, if a man be Non-resident by compulsion, that is not within the Law: And if a Par∣son purchase a parcell of Land within his Parish, and dwell upon that he purchased, and lease out his Parsonage-house, this is a means to make the Parsonage-house to come to destruction, and ruin.

And the meaning of the Law-makers was,* 1.225 to provide for three things. For Hospitality; for Divine service; and to prevent De∣lapidations; and so in this case the Defendant is within the penalty of the Statute. And to that my brother Fenner hath sayd, That these words, in, at, or upon, will make a difference, truly that is not so, for those words are all of one substance in this case,

Et ad∣j••rnatur.

101.

NOta that in a Scire fac. between F••e and Balton of the County of Norfolk it was holden by Popham and Gawdy,* 1.226 and not denyed by any, if a Fieri fac. goe forth to a Sherif, and he levy the Debt of the goods of the Defendant, but doth not retorn his Writ, if the Plaintif after sue another Scire fac. against the Defendant, upon the Judgement, he may plead this matter, and the Plaintif shall be put to his remedy against the Sherif; for the sale of the Defendants goods by the Sherif is good, and not to be defeated; and so is a good Plea in bar of the other Execution, otherwise the Defendant shall be put to a great mischief, vide 20 Hen. 6. 24. & 29. & 19 Edw. 3. Sci∣re

facias, & 44 E. 3. 18. Quaere if he shall not have an audita querela, if the Plaintif take out a new Scire facias within the year.

102.

NOta per Mr. Cook Attorney generall,* 1.227 that he said in an argument in the Exchequer, if a Bishop with consent of the Dean and Chapter, alien land belonging to his Bishoprick in fee, that a con∣tra formam collocationis doth not lye, and so he said he could shew the resolution of all the Judges of England, the reason is, for that, that the Statute of Westm. 2 cap. 41. whereupon this is founded, speaks on∣ly of Abbots, Priors, or Masters of Hospitalls, and albeit there are other words general, to wit or Masters of other Religious or Ecclesi∣asticall houses, yet that doth not extend to Bishops, which is an higher diginity than an Abbot, but the generall words after ought to be sup∣plied with intention of other houses inferior to those named before. So hath it been ruled, that a Lease by a Bishop is out of the Statute of 13 Eliz. cap. 10. which commenceth with Dean and Chap∣ter, howbeit there are generall words after, to wit, or any other having any Spirituall or Ecclesiasticall living, which is intended of any other inferior to those named before, and never was intended to extend to superiors, but as I think the contrary hath been since adjudged.

103.

VPon an Evidence in an Ejectione firme by Cootes against Atkin∣son for land in the County of Derby,* 1.228 It appeared that a Lease for yeares was made of the said land, 20. H. 8. for 80. yeares, and after the Lessee was ousted and died intestate, And after in 4. and 5. P. & Mar. a Fine was levied of the said land with Proclamations, and the Conusee enjoyed it untill 37. Eliz. in which year letters of Administration of the goods of the Lessee was granted to I. S. which entered and made the Lease to the Plaintif. Godfrey moved that this Fine with non claim for five yeares shall bind the right of the term by the Statute of 4. H. 7. which hath a saving of title and interests, So as they make their claim within five yeares,* 1.229 otherwise their ti∣tle and interest is bound.

Cook and Tanfield

A right of a term is not within the Statute of 4 H. 7. but right of Free-hold or inheritance, and so it was agreed in Stamfords case 21 Eliz. and sure hath been diverse times holden.

Godfrey

Stamfords case was a lease to com∣mence at a day future, and then a Fine and non claim for 5 yeares before the day of the commencement shall not bind the right of that Lease, but a Fine levied after the day of commencement, although be∣fore

any entry of the Lessee, shall bind. Saffins case. Gawdy & Fenner absent. caeter. Justic. held that a Lease for years shall never be bound by the Statute of 4 H. 7. and therefore the Administrator may law∣fully enter. This was the Title of the Countess of Shrewsbury against Rowland Ayre for the mannor of Hassop in Com. praedict. But the Jury gave a speciall Verdict, and Justice Fenner the next day said that he demanded this question of the Lord Anderson.

And he is clear of opinion that the Statute of 4 H. 7. extends to bind a right of a term if the Lessee were or might have been ever in possession before the Fine.

104,

POllard and his Wife brought an Action upon the case against Armshaw for these words,* 1.230 Thou art a whore, for I. S. Goldsmith hath the use of thy body, the cart is too good for thee.

Popham, et to∣ta Curia

The Action will not lye, for the Common-law cannot define who is a Whore, but if one keep a victualling house or Inne, and one say that she keeps a house of Bawdry,* 1.231 an action lyes, and so was Ann Davies case, because it may be a meanes to make honest guests to forbear the house, and so breed a temporall loss to the owner.

105.

INter Palmer & Humphrey,* 1.232 the case was such, upon an Elegit a She∣rif impannelled an Inquest, which found that one Henry Fry a∣gainst whom the Elegit was taken out was possessed of a Lease for 100. yeares to begin at the Feast of St. Micb. Anno 2 & 3. P. & M. when in truth (as it was found by speciall verdict in this action) the Lease was to begin at the Feast of St. Mich. Anno 3. & 4. Phi. & Ma. Cujus quidem Henrici Fry Statum interesse & terminum in ten. prae. (& ne dit praedict.) Juratores praedict. appreciaverunt to 80. l. and the Sheriff sold the Lease as a chattell for lxxx. l. The question was, if the sale by the Sheriff be a good sale.

Popham

It seems to me the sale is good, for albeit the Lease is misrecited, and He••ery Fry hath not any such Lease, yet when the Jury comes to praise it, and the Sherif to sell his estate in the land, they do not referr that to the re∣citall before, but generally that they shall sell all the state, interest, and term of Henry Fry. But if this word (praedict.) had been in the inquisition & sale it had been otherwise, as if the Sherif had said all which said estate & term, then he had referred that to the recitall be∣fore, which being false will make the sale void, & for that he said that it was agreed in the time of Sr. Christopher Wray about 21 yeares past, between Sr. G. Sydnam and Rolls upon a Fieri facias, where the

Inquest found, that the party against whom, &c. was pos∣sessed of a certain term bearing date, &c. which did not ••ear such date, and the Sherif sold the sayd term And it was ruled that the sale was not good; But the Court did then advise the party to take a new Fieri fac.* 1.233 and that the Inquest should find generally that he was possessed of a term for years yet endu∣ring, and the Sherif upon that made sale accordingly, and that sale was holden good, for that the Extendors and Sherif could not come to the knowledge of the certainty of the term; so in the prin∣cipall case, the sale being of a term, and the state of the par∣ty in the Tenements, and not of the term and estate aforesayd, which was falsly recited, this is a good sale, which was in a manner agred by all the Justices; but adj••rnatur. At another day Tanfeild moved this case again.

Popham

I have considered of the Record with advise, and I think as this case is, that the sale of a term by an Elegit is voyd;* 1.234 and for that the difference between a Fieri fac. and an Elegit is to be considered: For the Elegit is, that per Inquisitionem & sacramentum 12 bonorum hominum per rationabile precium & extent. the Sherif should apprise the goods and chattels, and extend the land; so without inquiry the Sherif may not sell, quod fuit concessum, as primo Mar. 100 is. Then if the Sherif inquire of one term, and sell ano∣ther, as our case is, the term sold was never found by our Inqui∣sition, and for that the sale not good, quod Fenner concessit, yet the Lord Popham sayd, that if it had been found by the Inquistion gene∣rally, that he is possessed of such land for term of divers years, ad∣huc ventur. which they have prised to such a sum, this had been good, insomuch as they have not any means to come to the knowledge of the certainty of the term, But when by Inquiry a Term in parti∣cular is found,* 1.235 they may not vary from that, and sell another; and he sayd that these words, Cujus statum Henrici Fry shall be referred as well to the state precedent found, as to the person of Fry. And so is the common intendment in pleading of a que estate. And he said to Mr. Tanfield, that if he had taken any note of their first opinions, that he should raze that out of his Book again; and after the parties agreed in Court, that Hauger should give to Fry 200 Marks more for his term, and then Fry should make assurance to him of the term, for confirmation of the sale.

106.

NOta per Cook Attorney Generall.* 1.236 If a man Covenant in consi∣deration of naturall love to his son, to stand seised of certain Land to the use of himself for life, the Remainder to the same son in Fee, with a Proviso, that it shall be lawfull for himself to make

Leases for 21 years or three lives. Now he may not make such Lea∣ses, notwithstanding this Proviso being by way of Covenant to raise the use. And so it hath been resolved.

Contra

Peradventure if it were by way of Feoffment to uses. After Mr. Walter said, that now lately in one Sharingtons case, it was adjudged in this Court upon a Writ of Error, That if a man Covenant with his Eldest son in consideration of naturall love,* 1.237 to stand seised to the use of him∣self for life, the remainder to his Eldest Son in tail, with Proviso, that he himself might make Leases to his second son, or to any other of his kindred for 21 years or 3 lives, and he made Leases to him ac∣cordingly, this was holden good; for they to whom the Leases are made, are within the consideration, to wit of the blood, and for that, the use may well rise to maintain those Leases; But if the Pro∣viso had been to make Leases to any man, howbeit, that after he made Leases by force of that to his second son, These Leases are void, for they are not within the consideration of the Covenant by Intendment of Law at the first, for the Law at the beginning adjudged the Proviso meerly void, quod nota.

107.

RObinson brought Debt upon an Obligation against May,* 1.238 the Con∣dition was, that the Defendant should discharge or save harm∣less the Plaintif of an Obligation, for which the Plaintif as surety with the now Defendant was bound to I. S. The Defendant by way of bar pleaded,* 1.239 that the Obligation made to I. S. by him, and the Plaintif, was upon a corrupt and usurious bargain, and pleaded the Statute of Usury, and concluded & sic non da••••ifica∣tus. It was moved at the bar, that this was no plea, for the Conditi∣on is, that the Defendant shall discharge or save harmless, &c. And the Plaintif was impleaded by I. S. for that debt, and hath paid the condemnation.

Tanfield Contra

For if this shall not be allowed for a good plea, the Statute of usury will be utterly defeated. For by a compact between the surety and the Usurer, the surety shall pay the usurer, and the surety by that counterbond shall have double re∣compence against the Principall, which will be mischievous. But the whole Court held the plea not good. sed quare.

108.

HObbs sued an Audita querela in the Kings Bench against Ted∣castle, * 1.240 and upon a demurer, the case was recited by Moor of the Temple, to be this, Tedcastle sued a bill of debt in this Court, against one Hallaway, in Custodia Marescali, which found bail, the

said Hobbs, and an another, which entred bail according to the com∣mon course of bail, And after Hallaway was condemned in the said Action, and then the said Hallaway died without paying the condem∣nation, or rendring his body to Prison, for which a scire facias was su∣ed against the bail, and upon two nihils retorned, Execution, was a∣warded against them; Whereupon they sued this Audita querela, supposing that the death of Hallaway hath discharged the bail. Moor argued for the Plaintif, that the bail ought to be discharged upon the matter, for Hallaway had Election to discharge the bail by paying the condemnation, or rendring of his body to Prison; Now by the Act of God it becomes impossible to perform the one, to wit, to yield his body to prison, And therefore the Law will discharge him of the other, and by consequence his bail. And that he proved by Arundells case, 9 Eliz. 262. & 6. & 7 Eliz. 231. Sir Edw. Wal∣graves case.

Popham

Quemodo constat here but that there was con∣venient time after the Judgement, to perform the one or the other.

Kemp Secondary

The course is allwaies here, after Judgement to award a Capias against the Defendant, and if upon that he do not render himself, or pay the condemnation, then to sue Execution a∣gainst the bail, and not before; but here there was never any Capias a∣warded against Hallaway the Defendant in his life time.

Popham Gawdy & Fenner

This seemeth very reasonable, not to sue Execu∣tion against the bail, untill a default be retorned against the Princi∣pall, and the recognisance of the bail, which is, that the Principall shall yield himself, &c. is intended to be upon Process awarded a∣gainst: him But no Process was awarded against him in his life; and now it is impossible that he should yield himself to Prison being dead,* 1.241 and therefore the bail is discharged.

And so they awarded Judgement for the Plaintif in the Audita querela.

109.

MAtures brought an Action of Covenant against Westwood. And the case was such,* 1.242 Adams Lessee for 20 years, made a Lease for 10 years of the same Land to Bowes by indenture, whereby Bowes did Covenant at the end of his Term of ten years, to avoid and to leave peaceable possession to Adams, his Executors or Assignes; Adams granted over his Reversion to Matures the now Plaintif. The que∣stion is, if the Plaintif by the Statute of 32 Hen. 8. cap 34. as Assignee may maintain an Action of Covenant for his Covenant broken, or not. Nota, that this case was moved divers times; And first it was moved, if a Grantee of a Reversion for years be within the Statute or not.

Gawdy

Well enough: For the words of the Statute extend to that (quod fuit concessum)

Then it was moved that this was a

meer collaterall Covenant between the persons, and not concerning the estate of the land, and for that not within the Statute. Popham sayd,* 1.243 If nothing be sayd to the contrary, intretur Judicium for the Plaintiff; afterwards the case was moved again.

Gawdie

It seems the case is, Assigne, which in regard of his reversion, as of a Covenant, may well maintain this action by the Statute of 32.

Fenner

This Co∣venant is not any Covenant to be performed, during the estate or terme of the Defendant, but it is a Covenant to doe a thing in the end of his term, and for that is not a Covenant, of which the Assignee of the reversion shall have benefit by the Statute, for that he hath not any reversion depending upon any estate, when the Covenant is al∣ledged to be broken; for the Defendant when he breaks that Cove∣nant, is but Tenant at sufferance.

Gawdie contra,

the Covenant is not to doe a thing after the terme determined, but at the instant of the determination of the term, and therfore it is a Covenant annexed to the State, and runnes with the Land, and therefore the Plaintiff shall have advantage over it.

110.

TRespasse and assault was brought against one Sims by the Hus∣band and the Wife for beating of the woman.* 1.244 Cook, the case is such, as appears by examination, A man beats a woman which is great with child, and after the child is born living, but hath signes, and bruises in his body, received by the said batterie, and after dyed thereof, I say that this is murder. Fenner & Popham, absentibus ca∣teris, cleerly of the same opinion, and the difference is where the child is born dead, and where it is born living, for if it be dead born it is no murder, for non constat, whether the child were living at the time of the batterie or not, or if the batterie was the cause of the death, but when it is born living, and the wounds appeare in his bo∣dy, and then he dye, the Batteror shal be arraigned of murder, for now it may be proved whether these wounds were the cause of the death or not, and for that if it be found, he shall be condemned.

111.

GOodale against Wyat in trepasse. The speciall verdict found that Sr John Pagginton was seised of the land in question in Fee,* 1.245 and morgaged it to one Woodliff upon condition, that if he or his Heires did pay to the Heires, Executors, or Administrators of the said W. within one yeer after the death of the said Woodliff 50 l. That then the said deed of Feoffment, and the Seisin thereupon given, should be void, and afterwards Woodliff infeoffed Goodale of the same

land, and gave notice of the said Feoffment, to Sr J. P. and after Woodliff dyed, and Sir J. agreed with the heir of W. to wit, one Drew Woodliff, to take 30 l. for the said 50 l. but when the 30 l. was to be paid, Sir J. paid to the said Drew VV. all the fifty pounds, and after such payment made, Drew VV. gave back to the said Sr. J. 20 l. parcel of the 50 l.

Altam

2. points are in the case. The first is to whom the payment of the money, as this case is, ought to be made, and I think to the Feoffee, because the Heir hath nothing to do in the land, and to prove that he cited fundamenta legum, 17. Ass. 2. 6. R. 2. Plesingtons case, and the case of one Ramsey 19. Eliz. was such, a man infeoffed three,* 1.246 upon condition, that if the Feoffor paid to them or their heires 100 l. that then he might re-enter, and after one of the Feoffees dyed, and the Feoffor tendred the money to his Heir, and adjudged a void tender,: And also Littleton proves that; but tif the condition might be performed, to the Heirby pay∣ment, that ought to be precisely performed, for he is now as a stranger, having nothing in the land, and the Covin between the Feoffor and the Heir, must not hurt my Olient, for by 4. E. 2. c••i in vita 22. If cui in vita be brought against a Prior, and hanging the action, he is deposed by Covin, this shal not abate the Writ, and it was adjudged in this Court, where a man was bound by Obligation to deliver a bond, and after he got a judgement upon it, and then deli∣vered the bond, and holden no performance of the condition, because the intent was not performed; and 20. E. 3. accompt 29. in accompt the Defendant pleaded a Deed, whereby the Plaintiff granted that if the Defendant made a Recognisance to him, that then the Writ of ac∣compt shall be made void, and he shewed how he made a Recogni∣sance, But the Plaintiff said that after the making and before de∣liverie of that to him,* 1.247 the Defendant took it from the Clerk, and therefore was adjudged to accompt,* 1.248 and by 18. E. 4. 20. If a man be bound to license another to carrie a 100. Oakes, if he do license him, and then disturb him, the condition is broken, and the common case of Executors will prove this, for, if an Executor have but 20 l. assets in his hands, and is in debt to two men, in 20. l. to either of them; if he pay but 10 l. to the one, and have an acquittance of him, for the whole debt of 20 l. yet the other 10. l. that remains in his hands shall be assets to the other; for no compacting between strangers shall prejudice my right, per quo &c.* 1.249

Gawdy

I think cleerly, if the payment had been intirely made to the Heir, without collusion, it had been good, for that he is preisely named, for none will deny but that if the payment had been made to the Executors, it had been good, but the Covin between the Heir and the Feoffor peradventure will make no payment;* 1.250 and for that 34. E. 1. Warran∣tie 88. If the father infeoff the Son, to the intent that this land shall not be assets to the Sonne, to bar him in a Formdone, this Co∣vin

will not serve to aid him,* 1.251 and 2 & 3 Mar. the Husband dyed intestate, and administration was committed to the wife, which tooke another husband, and the second husband and his wife as Ad∣ministrators brought an action of Debt, hanging which suit, the Sonne of the intestate, by fraud and covin between him and a Debtor, obtained other letters of Administration to him and the woman joyntly, and after judgement, the sonne by covin to defeat the exe∣cution released to the Debtor all demands and executions, and after the Husband and Wife sued execution, and the Debtor upon this re∣lease brought an audita querela, and adjudged against him, because of covin; but there is a third matter, which makes an end of all, for it is found that Sir John Pagginton entred upon Goodale, and Goodale re-entred, and then the Defendant entring is a Trespassor to the Plain∣tiff, because no title is found for him to make his entrie lawfull,

Finner

I thinke no payment ought to be made to the heir in this case, no more than it shall be where a man is bound by obligation to pay a lesser sum to the Obligee, his Heires or Executors; there payment shall be to the Executor, and not to the Heir. And I think in this case,* 1.252 that the payment ought to be to the Feoffee, for that that he is to have the losse, for by 22. E. 3. & 15. E. 3. if a man have ex∣eution by Statute, and grant his estate over, if the Conusor will pay the money, and have the land again, it shall be paid to the Grantee, and not to the Conusee. But I am cleer in opinion, that for another cause judgement ought to be given against the Defendant, for the words of the condition are, sub conditione, That if Sir John Paggin∣ton pay 50. l. to the Heires, Executors, or Administrators of W. That the said Deed of Feoffment,* 1.253 and the seizin upon that given, shall be void. And I think it is no condition for livery of seisin may not be void without a re-entry, as 15. H. 7. is, but for the matter of the Covin, it seems to me that if the Heir may receive the money, that shall not prejudice; for if he have right to have the money, who hath any wrong, if he give part of that to another?

Clinch

The payment of the money to the Heire is good; for when a man departeth with his estate, it is in his dispose to annexe what condi∣tion he will, and for that when he appointeth to the Heires, Execu∣tors, or Administrators, payment to any of them is good: And he said it was a good condition,* 1.254 and no fraud, for the duty was due to the Heir, but for the last matter that is not to be cured; for when one title is found for the Defendant, and it is found that the outed one that had elder possession, his entry is torcious.

Popham

I think the condition is not good; for whensoever you will have an estate of inheritance to cease,* 1.255 you ought to have apt words to make it cease; for an estate which beginneth by liverie, may not cease by words, but it is otherwise of an estate that beginneth by contract without any

liverie and seisin; but in the point of fraud I am of opinion with my brother Gawdy:* 1.256 For fraud in our law is not favoured, albeit the par∣tie have right, for if he that hath right is of covin with one to dis∣seise him that is in possession, to the intent that he will recover a∣gainst him, now this recoverie, albeit he hath right, will doe no good to him, but the last makes all without question, and so judgement was given for the Plaintiff.

112.

SAyer brought an Eejectione firme against Hardy,* 1.257 and a speciall ver∣dict was found, to wit, that a Lease was made to a widow for 40. yeers, sub hac tamen conditione, quod si ipsa tam diu sola fuerit, & inha∣bitabit in the same house, the woman continued sole all her life, and dwelt all her time in the said house, and dyed within the term, the question was, whether the term be determined or not, and whether the words make a condition or limitation.

Morgan

It is no condition, and cited Colthursts case, but if it were a condition here is no breach alleged, for the death is the Act of God, which no man may resist, and the Act of God may not prejudice any man.

Bromly

I think the word makes a Limitation, and not a Condition, and he tited the Lord Barkly's case.

Gawdie

If a Lease be made to a feme sole, if she so long live sole, and continue unmarried, now if she dye the Lease is determined,* 1.258 and per Litl. If an Abbot make a lease for 40. yeers, if he so long be Abbot, if he after be deposed or dye, the lease is determined: So is it of a lease made by the Husband, if he so long continue Husband of such a woman; but in this case the words are insensible, and for that it is neither condition nor Limitation, vide 3. E. 6. Dyer 65. & 66.

Popham & Clinch.

It is neither Condition nor limitation, but if this word (si) had been omitted, it would have been a condition; Or if the words (sub conditio•••• quod) had been omitted, it would have been a limitation. And if I make a Lease for 40. yeers, if the Lessee dwell upon the thing let, during the term there if the Lesse dye, the Lease is determined, for that the point of limitation goeth to all the term, but if it be a lease for 40. yeers, if the Lessee dwell upon that during his life, there if he dye, the Lease continueth: So they all concluded that the terme yet continueth, per quod judicium intretur pro quer.

113.

IN the case between Walter and Walter for 20. l. per annum to be paid to a Justice of Wales for the Office of the Clerk of Fines:* 1.259 For a Justice of Wales may by Prescription take notice of Fines of Land ly∣ing in certain Shires in Wales, and this 20 l. per annum was to be payd by the Servant to the Master for the sayd Office, for the Clerks Fee was v. s. iiij. d. of every Fine. The Action for not paying the xx l.* 1.260 was brought, and tried in comitatu Gloucest. And therefore Mr. Attorney said it was mis-tryed, for properly it ought to be tryed in one of the three Shires in Wales.

John Walter

I think the Tryall good; for 30 Eliz. there was a Case in this Court between Beveridge and Conney,* 1.261 And the case was, that a Lease was made in the County of Northampton, of lands in the County of Cambridge, and the Lessee was bound by Obligation to pay his rent in the County of North∣hampton, The Defendant pleaded payment in the County of Cam∣bridge, and this was found in the County of Northampton.

Gawdy

This is a good Case, let us see the Record.

Walter

You shall Sir. But the Court seemed to incline against Walter. Cook said that in this case the Assumption is voyd, per le Statute de 5 Ed. 6. cap. 16. For it is not lawfull to sell such an Office.

114.

IN an Action of Debt upon an Escape,* 1.262 Popham, Clinch, and Gawdy sayd,* 1.263 if a Prisoner in Execution escape, and the Jaylor make fresh suit, and before the re-taking the party bring his Action a∣gainst the Jaylor, now the Jaylor may not re-take the Prisoner, as to be in execution for the Plaintif again, but onely for his own indempnity; but if the party doe not bring his Action, then the Jaylor may re-take his Prisoner, and he shall be in Execution again for the Plaintif.* 1.264 For by Popham, this Case is like to Wast, the which if it be repaired before the Action brought, the party shall not have an Action.

115.

A. B. was Utlawed after Judgement,* 1.265 and an Elegit was awarded against the Defendant, Mr. Godfrey prayed a Supersedeas, quia erronice emanavit, for the party may not have any other manner of Execution but a Capias; for a Fieri fac. he may not have, for the Queen is intituled to all his goods, and an Elegit he may not have, for by the Utlawry, the Queen is intituled to all the profits of

his Lands.* 1.266

Gawdy

It appeares by 21 Hen. 7. 7. a. That the party Outlawed may make a Feoffment, and so out the King of the Profits; and so it seemeth in this Case. But it is good to be ad∣vised.

116.

SR. Henry Jones Knight,* 1.267 and I. his Wife, the Wife being then within age, levied a Fine of the lands of the Wife, and a precipe. quod red∣dat was brought against the Conusee, which vouched the Husband and the Wife, and they appeared in person, and vouched over the common Vouchee, which appeared, and after made default, whereby a Recovery was had, and now the said Wife and her second Husband brought a Writ of Error to reverse the Fine, and another Writ of Error to reverse the Recovery, by reason of the nonage of the woman, and the court was of opinion to reverse the Fine, but they would advise upon the Recovery, for that the said Henry Jones Knight, and his Wife, appeared in person and vouched over, and so the Recovery was had against them by their appearance, and not by default, and so it seemeth no Error,* 1.268 and to prove that Gawdy cited 1 and 2 Mar. Dyer 104 and 6 H. 8. 61. Saver default 50. Also as this case is it seemeth that by generall entry into warranty, the Error upon the Fine is gone, as where a man hath cause to have a Writ of right, or title to enter for a Condition broken, or any other title to land, and in a praecipe quod reddat of the same land is vouched, and entreth generally into warranty, by that the condition or other title is gone, but upon examination it was found that the Recovery was before the Fine, for the Recovery was Quindena Trin. and the Fine was tres Trin. And so the Recovery doth not give away the Error in the Fine.

117.

IN Evidence between Tutball and Smote the case was such,* 1.269 that a Termor for years granted his Term to I. S. upon condition that if the Grantee did not yearly pay x l. to Q. R. that the grant should be void & after the Grantor died and made the Grantee his Executor, and whether the Condition be extinguished or not was the question. Popham and Gawdy said the Condition is extinguished, for it is im∣possible for the Executor to enter upon himself. Clinch & Fenner è contra,* 1.270 for he hath the Term jure proprio, and the Condition as Exe∣cutor, and so he hath them as in severall capacities.

Cook

It hath been adjudged where a man is indebted and marryeth with the Ex∣cutor, and the Executor dyes yet this is no devastavit, for the Husband hath been charged.

118.

RIchard Thorn,* 1.271 and Jane his Wife, as Administratrix of one I. Gime brought Debt of xx. l. against I. S. And alleged that the Testator was Administrator of one Mary Gime, which Mary Gime lent the money to the now Defendant,* 1.272 and Judgement was given in the Common place against I. S. And upon the Writ of Error, Error was assigned, for that that the now Plaintif as Administrator of an Administrator, brought this Action, where the Administration of the first Testatators goods ought newly to have been committed by the Ordinary to the next of Kin, and he to whom the Administra∣tion of the goods of the first Administrator is committed, hath no∣thing to doe with them. And so the Iudgement was Reversed.

119.

HUmble brought Debt against Glover for arrearages of rent,* 1.273 and the case was this, that a man made a lease for term of years, and af∣ter granted the Reversion to the Plaintif, and after the Lessee for yeares assigned over his whole estate and interest, and after this as∣signment rent was behind, and the Grantee of the Reversion brought Debt against the first Lessee for rent due after his estate assigned over, and whether Debt will lye against the Lessee after the assignment, was the question, and the opinion of all the Judges was that no Debt lyeth for the Grantee of the Reversion against the first Lessee after the assignment of his term, for when the privily of the estate is determined of both parts, no Debt lyeth, and so the Plaintif was barred.

120.

IN Evidence between Maidston and Hall,* 1.274 Popham said, that it was agreed in the Star Chamber, if two are at issue in any Action, It is not lawfull for any stranger to labour the Jury to appear, for, for such an Act one Gifford was fined in the Star-Chamber.* 1.275

Gawdy

Truly the Law is so, for labouring of Juries is maintenance.

121.

DIck••ns brought an action of trespass against Marsh,* 1.276 and a speci∣ciall Verdict was found that R. D. being seised of certain lands in Fee had issue three children, to wit John, Toby, and Mary, and by his Will devised, that after his debts paid he giveth all his goods lands and moveables unto his three children equally between them

Altam

There are two matters to be considered in the case, the first is what estate the children have by this devise, whether Fee simple, or but for life; the second is whether Joyntenants, or Tenants in com∣mn; and as to the first point I think they have but an estate for life, for it appeares 22 H. 6. 16. If I devise land to one without expressing what estate he shall have,* 1.277 he is but Tenant for life, but if it be ex∣pressed in the devise,* 1.278 that the Devisee shall pay 20. s. to John S. there, as the book is 24 H. 8. R. 125. the Devisee shall have Fee simple. For the second point he said they were Joyntenants and not Tenants in common,* 1.279 but if the wordes of the Will had been,* 1.280 that they shall have part and part alike, there they are Tenants in common, and not Joyntenants.

Tanfield è contra

For if they were Joyntenants for life,* 1.281 and the reversion descend to one of them, that will never drown the estate for life for the benefit of the Survivor. And if a man give land to two men for their lives, the Remainder to the right heires of one of them, yet they are Joyntenants, and the Survivor shall hold place, and albeit the words are equally between them, yet this shallbe intended equally during their estate, and it hath been taken for a dif∣ference, if I devise my land to two equally divided between them, there they are immediately Tenants in common, and not Joyntenants, but if the words had been equally to be divided between them, there they are Joyntenants untill division be made, for that that it is referred to a future time.

Gawdy Justice

I think they have but estates for life, for consideration of blood is not so effectuall as consideration of money;* 1.282 for if I bargain and sell my land for money, without expressing any estate, the Bargainee hath a Fee simple, but if in consideration of na∣turall affection, I covenant to stand seised to the use of my son, and do not express any estate, there my son is but Tenant for life; and for the second point I think they are Tenants in common, and not Joyn∣tenants, for the case is no other, but as if he had said I give my land to my children by moities amongst them,* 1.283 and then there had been no question but that they had been Tenants in common.

Popham & Clinch

For the first point no estate but for life passeth, if any estate pass, for it is doubtfull if any estate pass or not, for the Will is, that after his debts paid,* 1.284 he giveth all his lands, goods and moveables, &c. And therefore Popham thought that such Lands which were liable to Debts should pass,* 1.285 and no other. For if the Devisor had had a Term, then it seemeth no Land should pass: But admit the Land do pass, then if I devise Land to two, equally divided between them, they are Te∣nants in Common; But if I devise Land to two, equally to be divided between them, by I. S. now untill Division, they are Joyntenants; So I think where the Devise is equally to be divided between them, that they are Joyntenants quousque Division, because of the reference future.

142.

IOhn Cole made a Lease for years to one Taunton,* 1.286 upon Condition, that if the Lessee shall demise the Premises, or any part of it, other than for a year, to any person or persons, then the Lessor and his Heirs may re-enter, the Lessee after devised it by his Will to his son.

Popham Gawdy & Fenner

It is a breach of the Condition, and the case of 31 Hen. 8. 45. ruleth the Law in this case, for a Devise is taken for a breach of the Condition, v. 27 Hen. 8. 10. Quaere if he might not have suffered it to come to his son as Executor.

123.

A Man seised of a Wood, granted to another a Hundred Cords of Wood to be taken by Assignment of the Grantor,* 1.287 and before Assignment the Grantee granted that over, and whether this Grant be good or not, being before Election, was the question. And the bet∣ter opinion was, that it is not grantable over, for no property was Vested in him before the Assignment; and if the Grantor die be∣fore Assignment, the Grant is void, and his Executors if he die shall not have it.

124.

BRewster brought Error against Bewty upon a Judgement given in the Common place in a Replevin,* 1.288 and it was Assigned for Er∣ror, for that that Kidman was retorned in the Venire fac. and Bidman▪ was retorned in the Distringas & habeas corpora. Tanfield said, it was apparent Error, and to prove that he cited Parkers case, where in an appeal Palus was retorned in the Venire fac. and Faulus was in the Habeas corpora, and Paulus was sworn, and therefore Error. And be∣tween Cobb and Paston, a Juror was named Hantstrong in the Venire fac. and Hartstrong in the Distr. and adjudged ill. Cook said, that it might not be amended. And to prove that he cited 9 Edw. 4. 14. & 27 Hen. 65. where it is said, no Amendment after Judgement; for thereby the Attaint of the party shall be tolled; and in a case be∣tween Crosby and Wilbet, George Thompson was retorned in the Venire fac. and Gregory Thomson was in the Distr. and could not be amended after Judgement.

Gawdy

It is hard to amend the Distr. for the Book of 27. Hen. 6. is, that it shall not be amended, for the Distr. is the Awarding of the Court, and for that he cited 14 Hen. 6. 39. where a Juror was retorned by the name of Hodd, and in the Habeas Corpo∣ra was named Lord, and when the default was espied, they a∣warded a new Habeas Corpora. But in the Book of 22. Hen. 6. 12. the

Sherifs retorn was amended, but not the Writ. And 34 Hen. 6. 20. The Prior of St. Bartholomews case, where in the Fenire fac. there were 24 retorned, and in the Habeas Corpora but 23. and so a Juror omit∣ed, and holden that it could not be amended. But after the opinion of the Justices of England was, that it should be amended, insomuch that it appears by examination the same party in the Venire was sworn, and so no damages to any.

125.

PAnnell brought Trespass against Fenn,* 1.289 And the case was such, that a man was Possessed of a Term, and made M. his Wife and G. Fenn his Executors, and devised all his Term to them, and that they shall have the Term untill all his Debts and Legacies were paid, and all such charges in suit of Law as they should expend, the Re∣mainder to John Fenn in tail; the question was, whether the Execu∣tors take as Devisees or as Executors. Gawdy said, if they take as Devisees, then if the one of them grant all the Term, no more but the Moity passeth, and then the Grantee and the other Executors shall be Tenants in Common: But if they take as Executors, then when one Granteth the Term, all passeth, as 29 Hen. 8. is, Clinch & Fenner said, they shall take as Executors, for it is the proper function of an Executor to entermedle with the Will.

Gawdy

If I make two my Executors,* 1.290 and devise the profits of my Land to them untill my Debts and Legacies be paid, and untill they have levyed 100. l. after that to their own use, I say they shall take that as Legatees, and not as Executors, in respect of the 100. l. which they are to have to then proper use.

126.

NOta,* 1.291 if a man have Judgement to have Retorn upon a Non∣fuit in a Replevin, and the Plaintif bring a second Deliverance, this is a Supersede as of the Retorn; yet the Defendant in the first Replevin shall have a Writ to enquire of the damages, which shall not beestaid by the second Deliverance, but if he have Iudgement in the second Deliverance, then shall be retorn Irreplevisable, and shall recover damages.

127.

STitch against Wisdom,* 1.292 an Action upon the case was brought for words (viz) he did better than many an honest man did: For there is many a truer and honester man hang'd, and there was a Robery committed, whereof I think him to be one, and I verily think him to be an Horse-stealer, and upon non Cul. pleaded, It was found for the Plaintif, and pleaded in arrest of Judgement, for that it is not expresly affirmed that the Plaintif was one of the Robbers, neither that he was a Horse-stealer precisely, but that he thought him to be one, and thought is free for every man, and no slander; but this notwithstanding Judgement was given for the Plaintif, for thoughts tending to slander may not be uttered.

128.

NOta per Gawdy,* 1.293 That a man may be accessary to the stealing of his own goods, As if he confederate with an other to steal goods from his Bayly, to the intent to charge his Baily, this is Felony.

129.

THynn brought Debt against Cholmley for 300. l. Arrerages of a nomine poenae,* 1.294 And declared of a Lease for years made by him to one Ager rendring Rent, and if default of payment be made of the said Rent at any day,* 1.295 in which it ought to be paid, Quod tunc & to∣ties the said Ager his Executors and Assignes, shall pay iij. s. iiij. d. pro quolibet die donec praedictus reddit. so behind shall be satisfied, And shewed how the Rent was behind and not paid by the space of two years, but did not shew that he demanded the Rent.

Jackson

The sum demanded is by computation more than should be true: But it seems that the Plaintif intends to have every iij. s. iiij. d. doubled for every day that the Rent is behind; And if that be his intent, then he demands too little,* 1.296 for in 2 years that will be infinite.

Gaw∣dy

He shall have but iij. s. iiij. d. for every day.

Fenner

I think that he ought to make a demand of the Rent; Or otherwise he shall not have the nomine poene.

Gawdy

Nay truly, no more than in Debt upon an Obligation, and he cited 21 Hen. 6 21. Edw. 4. & 22. Edw. 4.

Fenner

Not like, for in debt upon an Obligation it is a duty, but otherwise of Rent; and it was agreed that it lies against the As∣signe in this case.

130.

HArbin against Barton.* 1.297 The case was, that two Jointenants for life, the one made a Lease for 80 years, to begin after his death, and after died. And whether the Lease is good against the Survivor or not, is the question. Gawdy said that the Lease was good, and cited 2 Eliz. 187.

Popham & Fenner è contra

After, this Lease was adjudged a good Lease by all the Judges of England; for every Jointenant hath interest during his life, and the life of his companion.* 1.298 For it was Ewdalls and Paramores case, 31. Eliz. Where a Lease was made to the Father during his life, and the life of two of his Sons; The Father assigned over, and adjudged to continue after the death of the Father. The like between Gutter & Locrofts, and between Orwin and others

131.

Baddock against Ja. S. and declared in an Action upon the case for words,* 1.299 quod in praesentia diversorum leigiorum dixit de praefat. quer. haec verba Anglicana (viz.) Thy Father (praedictum quer. innuendo) is a thief; for he stole my sheep. The Defendant justified the words, and at the Assis••s it was found for the Plaintif, and exception was taken in arrest of Judgement; For that it is not shewed in the Decla∣ration, * 1.300 that the words were spoken to the son of the Plaintif.

Gaw∣dy

I think it is good, for that the Defendant hath Justified the words spoken of the Plaintif, tota Cur. è contra. But if the Declaration be uncertain in form, yet the bar may make it good: But if the De∣claration want substance, as in this case it doth, there the bar cannot make it good.

132.

RObert Sharples and Grace his Wife,* 1.301 brought Debt upon an Ob∣ligation against N. Hankinson, the Obligation boar date xiij. die Octobris, An. xxxj. Eliz. The Condition was, if N. H. did pay viij. l. of lawfull money, &c. in the year of our Lord God 1599. At or upon the 13^th day of October, which shall next ensue the date herof. The Defendant pleaded that the day of payment was not come.

Gawdy

I think the day of payment is the 13^th day of October, next after the date of the Obligation, And that these words in the year of our Lord God 1599. are meerly ••oid.

Fenner Justice

I think that the payment shall be in the year of our Lord 1599. For when a certainty appears, allbeit afterwards an incertainty come, yet that

shall not hurt the certainty, but the first certainty shall stand, and the incertainty shall be void, And in this case the An. Do. 1599. is suffici∣cient certainty, and therfore the subsequent words are void.

Popham

I think that the payment shall be the 13 day of October prox. post An. Dom. 1599. For the words are, that the Obliger shall pay viij. l. of lawfull money of England in the year of our Lord God 1599. And if the payment shall be before this time, none may know but by the spirit of Prophecie, what money shall be current in England that year before the year come, and it is impossible to pay that before; and if I am bound to enfeoff before Easter,* 1.302 him that comes first to Pauls upon Michaelmas day next, this is void, because it is im∣possible.

133.

BOyer brings a Writ of Error against Jenkings,* 1.303 and the Error as∣signed was, for that the suit was commenced 35 Eliz. And the Venire fac. to try this issue bore, Teste 33 Eliz.

Gawdie

a Venire fac. which bears Teste 33 Eliz. cannot possible be to try an issue in 35 Eliz. which is two years after, and therefore here is no venire fac. and so holpen by the Statute of 18 Eliz. after Verdict.

Tunfield

This very case was Yorks case, adjudged in this Court that it was not holpen by the Statute.

134.

NOta per Cook Attorney Generall,* 1.304 that the Lord Keep 〈◊〉〈◊〉 that is, was of Counsell in a case inter Harlakenden, and A. where it was adjudged, that if a man make a Lesse for years of Land, excep∣ting the Wood, and after the Leasor grants the Trees to the Lessee, and the Lessee assigned over the Land to another, not making any mention of the Trees, now the Trees shall not pass to the Assignee, as annexed to the Land, for the trees and Land are not conjoined, for the Lessee had severall interests in them by severall Grants.

135.

THomas against King,* 1.305 and the Title of the Land was between Sir Hugh Portman and Morgan, And the Ejectment was supposed to be of 100. Acres of Land in Dale & Sale, and the Jury found the Defen∣dant guilty of 10 Acres, but did not shew in what Town they lay, whereupon Haris Serjeant moved in arrest of Judgement, for that it doth not appear where the Sherif may put the Plaintif in Possession. Et non allocatur, for the party at his perill ought to shew unto the

Plaintiff the right land, for which Judgement was given for the Plaintif.

136.

O Land against Bardwick, and the case was this, that a woman be∣ing possessed of Coppihold land for her Widowes estate sowed the land,* 1.306 and after took the Plaintif to Husband, and the Defendant being Lord of the Mannor entred and took the Corn, and the Hus∣band brought an action of Trespass.

Clinch

I think, the Woman shall not have the corn,* 1.307 but if the Wife had Leased the Land, and the Lessee had sown it, and after the Wife had maried, and the Lord had entred, yet the Lessee shall have the Corn. But in the case at bar, the Woman her self is the cause of the Determination of her estate, for she committeth the Act, and therefore shall not have the Corn, no more,* 1.308 than if Lessee for life sow the Land, and after commit for∣feiture, and the Lessor enter, in this case the Lessor shall have the Corn.

Fenner

At the first the State of the Woman was certain, viz. for her life, but yet determinable by Limitation if she mary. And if a man which hath an Estate determinable by Limitation sow the ground, and before severance the Limitation endeth the state, yet the party shall have the Corn which he hath sown. And in the case at the bar, there is no Forfeiture committed which gives course of Entry, nor no dishinheritance or wrong made to the Lord, as in the case where Tenant for life after his sowing commits forfeiture; and if a man enter for breach of a Condition,* 1.309 he shall have the Corn, and not he that sowed the same, for that his entry over-reacheth the state of the other; but in this case the entry of the Lord doth not over∣••ach the Title of the Woman; for he shall take that from the time that the Limitation endeth the Estate, and not by any relation before, For the Act of the Woman is Lawfull, and there∣fore no reason he shall lose the Corn▪

Popham Chief Justice

It is cleare,* 1.310 if Tenant for life sow and after commit a For∣feiture. And the Lessor enter, he shall have the Corne; 〈◊〉〈◊〉 the like is it if the Lessee after the sowing surrender his Term the Lessor,* 1.311 or he to whom the Surrender was made, shall have the corn; but if Tenant for life make a lease for yeares,* 1.312 and after commit a Forfeiture, and the Lessor enter, now the Lessee shall have the Corn; and in the case at bar, if the woman had Leased for yeares, and the Lessee had sowed the land, and after she had taken Husband, now the Lessee and not the Lord shall have the corn, for the act of the Woman shall not prejudice a third person, but when she her self is the party,* 1.313 and hath knowledge at the time of the sowing what acts will determine••er estate, then is it reason if she by her

own act will determine her estate, that she shall lose the Corn: For if Lessee for life sow the land,* 1.314 and after pray in aid of a Stranger, now if the Lessor enter he shall have the Corn, And so if Tenant at Will sow the Land,* 1.315 and after determine his own Will, the Lessor shall have the Corn, but otherwise it is if the state be determined by the act of law, or of a third person, so that no folly was in him that sowed.

Fenner

If the Husband and Wife were Lessees during the coverture,* 1.316 and after the Husband sowes the land, and then the Husband and Wife are divorced, yet the Hus∣band shall have the Corn, for that the Husband at the time of the sowing had no knowledge of the Act which determined his interest.* 1.317 So in this case the Woman at the time of the sowing did not know of the future Act which determined her interest, and therefore no rason she should lose the Corn, for the Corn is a Chattell in her;* 1.318 for if she had either granted them, or been out∣lawed after the sowing, and then had taken a Husband, Now the Queen in the case of the outlary, or the Grantee in the other case, and not the Lessor,* 1.319 shall have the Corn.

Popham

I will agree the case of the divorce to be good Law: For that is not meerly the Act of the party, but allso of the Court; but in the case at bar, the taking of the Husband is the Voluntary Act of the Woman per que.

And after Judgement was given against the Husband, which was the Plain∣tif.

137.

A Scough brought a Writ of Error against Hollingworth upon a Judgement given in the Common place in a Writ of Debt brought upon a Statute Merchant,* 1.320 And the case was that Ascough came before the Maior of Lincoln, and put his seal to the same Sta∣tute, and the Kings seal was also put thereunto, but one part did not remain with the Maior, according to the Statute of Acton Bur∣nell, And it was adiudged a good Obligation against the Partie, albeit it is no Statute.

Godfrey

I think the Judgement ought to be affirmed, and he cited 20. E. 3. accompt 79. And it is clear that a thing may be void to one intent, and good to another, by 10. Eliz. but Popham and Fenner were of opinion, that it was hard to make it an Obligation, for in every contract, the intent of the parties is to be respected.* 1.321 And here the intent of the parties war, to make it a Statute, for the Kings seal is put to it, and a Statute needs no deliverie, butan Obligation ought to be delivered, other∣wise it is not good,* 1.322 and being void as a Statute, it is void in all;

And after Judgement was given, That the first Judgement shall be eversed if other matter be not shewed.

128.

BOdyam against Smith in Trespas for the taking of an Ox in Dale. The Defendant justified the taking in Blacka••re,* 1.323 and that it was his Freehold, for damage feasant. The Plaintif made a new assign∣ment, That the place whereof he hath complained the taking to be is Green-acre in Dale, and the Defendant justified there for Her∣riot service.* 1.324

Gawdy

I think the Lord may seise Heriot ser∣vice, and when the Lord hath seised that is a seisin by the hands of his Tenant, Plowd. fo. 45. And for the last point, there is not any colour or question, for when in trespasse the Defendant pleads a plea in bar,* 1.325 and then the Plaintiff makes a new Assignment, reason will that now the Defendant shall have answer to this new assigned wrong for per 27. H. 8. 7. after a new assignment, the old barre is waved, and out of the book, and the Defendant shall plead to the new assign∣ment, as if he had never pleaded before.

Popham, Fenner & Clinch concordaverunt cum Gawdy.

139.

BAstard a good name of purchase,* 1.326 for it is a sufficient denomina∣tion who shall take, per Popham & Fenner.

140.

GAwdy Justice said a man cannot be perjured by an innuend. Popham said,* 1.327 that no man is to be touched for a perjurie upon the Statute of 5. Eliz if he be not deposed upon some matter depending in suit, in some Court of Record, and if he be perjured in circum∣stance, and not in the point in question, that is not materiall, and is not punishable by the Statute of 5. As if a man doe swear, that he saw such a man steal, and deliver such a deed, and when he did it, he was in blew coat, where indeed he was not in a blew coato.

141.

POpham Chief Justice said, there will be a difference between disjunctive absolute, and disjunctive contingent, as if a man be bound to pay ten pound, or to enfeoff one upon the returne of I. S. from Rome; there if I. S. dye before he return from Rome, then the obligation is saved, although the ten pound be never pay∣ed: but if it be a voluntarie Act, as to pay you ten pound, or to enfeoff you before Michaelmas, there if the Obligor dye before Mic. yet hit Executors ought to pay the money.

Notes

• * 1.1

  Appearance.
• * 1.2

  Frandulent deeds. Trin. xxxviii. Eli.
• * 1.3

  Notice.
• * 1.4

  Consideration expressed.
• * 1.5

  Slander.
• * 1.6

  Caveat.
• * 1.7

  Appeal.
• * 1.8

  Appeal, Er••••••▪ Difference.
• * 1.9

  Execution u••on an ex∣te••t of a Re∣mainder.
• * 1.10

  〈◊〉〈◊〉 Bull 〈◊〉〈◊〉.
• * 1.11

  〈◊〉〈◊〉 ••ames 〈◊〉〈◊〉.
• * 1.12

  Debt by a Successor a∣gainst an Executor af∣ter assign∣ment.
• * 1.13

  Trin. 39. E∣liz.
• * 1.14

  The name of a Corporation mistaken in a lease.
• * 1.15

  Small var∣iances.
• * 1.16

  Two parts of e∣very Corporati∣on.
• * 1.17

  Addition super∣fluous shall not hurt.
• * 1.18

  Common under∣standing▪
• * 1.19

  Disceipt.
• * 1.20

  Burrough versus Tay∣lor.
• * 1.21

  Payment of rent the rever∣sion being grant∣ed away by the Queen.
• * 1.22

  Election.
• * 1.23

  The common receipt of the Exchequer.
• * 1.24

  No prerogative can be granted over.
• * 1.25

  Error.
• * 1.26

  No amendment in point of judgement.
• * 1.27

  Abuttals.
• * 1.28

  Slanderous words.
• * 1.29

  Mortgage.
• * 1.30

  Award of pa••t onely.
• * 1.31

  How against Broom and others.
• * 1.32

  Rent extinct by empairing the estate.
• * 1.33

  Error.
• * 1.34

  Insufficient Writ ••ot holpen.
• * 1.35

  Slander of a Counsellor at Law.
• * 1.36

  Prohibition.
• * 1.37

  Absurd practise of the spirituall Court.
• * 1.38

  Partable titha∣ble.
• * 1.39

  Lanes case.
• * 1.40

  Seeciall plea∣ding.
• * 1.41

  Appearance.
• * 1.42

  Usury after Judgement.
• * 1.43

  Slander of an Attorney,
• * 1.44

  Error for non summons.
• * 1.45

  No averment a∣gainst a Sherifs retorn.
• * 1.46

  Fish in a pond.
• * 1.47

  Chattells de∣scendable.
• * 1.48

  Felony.
• * 1.49

  Nomine poe∣nae against an Assignee.
• * 1.50

  In demand.
• * 1.51

  Slander.
• * 1.52

  Proviso.
• * 1.53

  S••ander.
• * 1.54

  Indictment.
• * 1.55

  Prescription by a Copy∣holder.
• * 1.56

  Indictment.
• * 1.57

  Commitment.
• * 1.58

  Error.
• * 1.59

  Devise.
• * 1.60

  Limitation.
• * 1.61

  Limitation.
• * 1.62

  Crickmores case
• * 1.63

  Vellock & Heymonds case.
• * 1.64

  Sir Edward Cleres case.
• * 1.65

  Expressed estate
• * 1.66

  Slander.
• * 1.67

  Flight for Felony.
• * 1.68

  Variance be∣tween em∣parlance and judgment roll for date of the Obli∣gation.
• * 1.69

  New triall.
• * 1.70

  Abate∣ments.
• * 1.71

  Free-hold of a Juror.
• * 1.72

  No bill of en∣ception against the Queen.
• * 1.73

  Proxime fu∣ture.
• * 1.74

  Demand.
• * 1.75

  Condition gi∣ven to the Queen.
• * 1.76

  Slander.
• * 1.77

  Infected. Smell of robbe∣ry.
• * 1.78

  Slander.
• * 1.79

  A Parsons Lease.
• * 1.80

  Rent reserved.
• * 1.81

  Space in the roll.
• * 1.82

  The emparlance roll is the War∣rant.
• * 1.83

  Foractor.
• * 1.84

  Devise.
• * 1.85

  Bail by a false name.
• * 1.86

  Notice of a retorn from beyond sea.
• * 1.87

  Distress for issues for of a stran∣gers beasts Levant.
• * 1.88

  Error.
• * 1.89

  Variance in the alias no error.
• * 1.90

  Quare imp.
• * 1.91

  Pasch. 43 Eliz
• * 1.92

  Collation before notice.
• * 1.93

  Devise.
• * 1.94

  Prohibition for a Legacy.
• * 1.95

  Action confessed by one Executor by admittance.
• * 1.96

  Election.
• * 1.97

  Execution of a writ done the day of the retorn.
• * 1.98

  Assets
• * 1.99

  Slander.
• * 1.100

  Forfeiture of a copy-hrld.
• * 1.101

  Demand after the day.
• * 1.102

  Sir Henry Knevit a∣gainst Poole interest of Corn.
• * 1.103

  Lease of ground sowed.
• * 1.104

  Assignment af∣ter sowing con∣cess. per Pop∣ham cont. per Gawdy.
• * 1.105

  Ʋncertainty ne∣cessarie, unne∣cessary diffe∣rence.
• * 1.106

  Abator soweth.
• * 1.107

  Devise of land sowne.
• * 1.108

  Lessee for years ousted.
• * 1.109

  Lessee at wil ousted.
• * 1.110

  Regress.
• * 1.111

  Ground let for life after sow∣ing.
• * 1.112

  Disseisor sow the land of tenant for life.
• * 1.113

  Prohibition for Dotards.
• * 1.114

  Empound∣ing.
• * 1.115

  Common place.
• * 1.116

  Fine for Er∣ror in infe∣rior Courts.
• * 1.117

  Caveat.
• * 1.118

  Day of pay∣ment.
• * 1.119

  Prohibition.
• * 1.120

  Payment for one thing shall not discharge a∣nother.
• * 1.121

  No tyths for things spent in the house.
• * 1.122

  Notice of trust.
• * 1.123

  Notice of For∣gery.
• * 1.124

  Notice of Felo∣ny.
• * 1.125

  Reservation of Rent.
• * 1.126

  Hue and Cry.
• * 1.127

  Capias after a Fieri saci∣as executed for parcell.
• * 1.128

  Claim of Dower.
• * 1.129

  Moities in Tail.
• * 1.130

  Tenure and Wardship ex∣tinct.
• * 1.131

  Legacy of a moity of all his goods.
• * 1.132

  Benefield a∣gainst Feek. Tithe of Saf∣fron.
• * 1.133

  A Prohibition for the Pla••ntif in the Spirituall Court upon his own lihell.
• * 1.134

  Suit between persons spiritu∣all.
• * 1.135

  Oyer of a deed.
• * 1.136

  Devise be∣fore pur∣chas••.
• * 1.137

  The Statute of Wills.
• * 1.138

  Want of apt words.
• * 1.139

  Things not ex∣pressed in the Wil must be ex∣pressed in the publication.
• * 1.140

  Hearing and allowance is a publication.
• * 1.141

  Where there it no controlment there needeth no new publica∣tion.
• * 1.142

  Amendment
• * 1.143

  The Record it self shall not be sent out of the Court.
• * 1.144

  No amendment in ••••int of Judgement.
• * 1.145

  Trover.
• * 1.146

  Denial is a Conversion.
• * 1.147

  Keeping is an Administration.
• * 1.148

  Limitation.
• * 1.149

  A remainder and a recovery may be created by one deed.
• * 1.150

  Assumpsit of the testa∣tor.
• * 1.151

  Prohibition for a Par∣sons lease.
• * 1.152

  Conversion.
• * 1.153

  Abatement of debt.
• * 1.154

  Arrest before the day given for payment.
• * 1.155

  Bond for par∣cell of a con∣tract.
• * 1.156

  Every discharge to be by wri∣ting.
• * 1.157

  For the intent must also be performed.
• * 1.158

  Disturbance of the considerati∣on.
• * 1.159

  Assump••it in considerati∣on that a man will voluntarily do that act which other∣wise he should have been com∣pelled to doc.
• * 1.160

  Limitation.
• * 1.161

  Wast against the surviving Joyntenant.
• * 1.162

  Remainder for years to the te∣nant for life.
• * 1.163

  Chambers a∣gainst Gostock.
• * 1.164

  Burdels case.
• * 1.165

  Occupant.
• * 1.166

  The greater e∣state preceding the less, both may stand.
• * 1.167

  Visne.
• * 1.168

  Keep harm∣less.
• * 1.169

  Variance between the declaration and the new assignment, or the title of the Plain∣tif.
• * 1.170

  Counter∣bond for an Obligation allready for∣feited.
• * 1.171

  Account. Baron & Feme
• * 1.172

  Letter of At∣torney by the Husband only. Debt due to a Feme sole.
• * 1.173

  For by the en∣termartage the duty became the husbands, if he could attain it in the life of the wife, which he did by the receipt of his Bayly.
• * 1.174

  Verdict in a Scire fac. upon Recog∣nisance.
• * 1.175

  Whether Joyn∣tenancy shal be sayd a Seisin.
• * 1.176

  Forfeiture by alienation.
• * 1.177

  Iointenants make a sta∣tute.
• * 1.178

  Prohibition for Asp.
• * 1.179

  No Tithes for housboots &c. or other usuall bootes.
• * 1.180

  Account.
• * 1.181

  Depravation upon endictment.
• * 1.182

  Disseism.
• * 1.183

  Qualificati∣on and non residence.
• * 1.184

  1 point.
• * 1.185

  2 point.
• * 1.186

  3 point ad••••d∣ged.
• * 1.187

  Parson before induction.
• * 1.188

  Presentation ex∣cuted before in∣duction.
• * 1.189

  Colchils case death of the presentee before induction. 2 point.
• * 1.190

  Licence of alienation.
• * 1.191

  Plenarty a∣gainst a com∣mon person.
• * 1.192

  The Commence∣ment of the fault.
• * 1.193

  Death or depar∣ture after qua∣lification and taking another benefice.
• * 1.194

  No laps for want of in∣duction.
• * 1.195

  No taking of fruits before induction.
• * 1.196

  Hunting Chap∣lins.
• * 1.197

  Refusall before induction.
• * 1.198

  A Parson absent may be presen∣ted and admit∣ted.
• * 1.199

  Plenarty against himself before induction.
• * 1.200

  A sentence de∣claratory upon a deprivatio•• ipso facto.
• * 1.201

  So it seemeth upon an execu∣tion.
• * 1.202

  He may exercise his Fanction before inducti∣on.
• * 1.203

  Scire facias sur recogn.
• * 1.204

  Learning for releases.
• * 1.205

  Annuity.
• * 1.206

  Read against Bullock.
• * 1.207

  Difference where the first delivery is void and where not.
• * 1.208

  Infant.
• * 1.209

  Feme ••ove••t.
• * 1.210

  Release after delivery is an Escrowl.
• * 1.211

  Duties absolute contingent, differece.
• * 1.212

  Obligation to per∣form covenants discharged, but not the cove∣nant.
• * 1.213

  A possibility cannot be dis∣charged or sur∣rendred.
• * 1.214

  Release of de∣mands acti∣ons, difference.
• * 1.215

  Necessary apparell.
• * 1.216

  Severa prises good in a de∣clar.
• * 1.217

  Satisf. of parcel
• * 1.218

  Non-resi∣dence.
• * 1.219

  Beneficium.
• * 1.220

  Proviso.
• * 1.221

  Cont. per Pop∣ham 68.
• * 1.222

  Reparations.
• * 1.223

  Proviso.
• * 1.224

  Absence com∣pulsary.
• * 1.225

  Three things provided for by the Statute.
• * 1.226

  Fieri facias executed, but not re∣turned.
• * 1.227

  Alienation by a Bishop.
• * 1.228

  Whether a lease be bound by the Statute of 4 H. 7.
• * 1.229

  A good distin∣ction.
• * 1.230

  Slander.
• * 1.231

  A Victualing house.
• * 1.232

  Inquisition upon an ele∣git.
• * 1.233

  A good form of finding a term by inquisition.
• * 1.234

  The difference between a Fieri fac. and an E∣legit.
• * 1.235

  Que estate, refers as well to the estate as to the person.
• * 1.236

  Difference be∣tween Feoff∣men•• to an use, and covenant to raise an use.
• * 1.237

  A proviso with speciall limita∣••n good.
• * 1.238

  Counter∣bond.
• * 1.239

  Vsury.
• * 1.240

  Audita querela, for a speciall bail.
• * 1.241

  Iudgement.
• * 1.242

  Covenant. for an assignee of a rever∣sion for years.
• * 1.243

  Covenant reall which concer∣neth the estate.
• * 1.244

  A Child born living but bruised.
• * 1.245

  Mortgage.
• * 1.246

  Ramseys case
• * 1.247

  Composition by Executors.
• * 1.248

  Precisely na∣med.
• * 1.249

  Payment upon a m••rgage good to the Execu∣torrs cleelry
• * 1.250

  Father enfe∣off the son.
• * 1.251

  Covin by admi∣nistration.
• * 1.252

  Conusee by Sta∣rute grants o∣ver his estate.
• * 1.253

  Liveri•• cannot be void with∣out a reentire.
• * 1.254

  Possession a good title a∣gainst all which have not a bet∣ter.
• * 1.255

  Estates begin∣ning by liverie, and otherwise.
• * 1.256

  Fraudulent re∣coveries are void, although they be by a good title.
• * 1.257

  A Lease de∣terminable made good, for the insen∣sibility of words.
• * 1.258

  Differences be∣tween conditi∣ons and limita∣tions.
• * 1.259

  Assumpsit in considera∣tion of an Office sold.
• * 1.260

  Mistr••all.
• * 1.261

  Reveridge a∣gainst Conney.
• * 1.262

  Escape.
• * 1.263

  P. 36. Eliz.
• * 1.264

  Wast.
• * 1.265

  Elegit after V••lary.
• * 1.266

  Feoffment by an outlaw.
• * 1.267

  Error in fine and remedy.
• * 1.268

  Generall war∣ranty destroieth titles and con∣ditions.
• * 1.269

  Condition extinguished P. 36 Eliz.
• * 1.270

  The debtor marrieth the Executor.
• * 1.271

  Admini∣strator of an Admini∣strator.
• * 1.272

  Trin. 36. Eliz.
• * 1.273

  Privity de∣termined of both parts.
• * 1.274

  Mainte∣nance.
• * 1.275

  Giffords case.
• * 1.276

  Esta••e by Devise.
• * 1.277

  Dyer 23 Eliz. 371.
• * 1.278

  No estate ex∣pressed.
• * 1.279

  Consideration.
• * 1.280

  Part and part like.
• * 1.281

  Reversion de∣scendeth to a Joyntenant.
• * 1.282

  Blood, Money, Difference.
• * 1.283

  By moities.
• * 1.284

  Only Lands ly∣able.
• * 1.285

  A Term.
• * 1.286

  Devise is a demise. Hil. 36 ••liz. rot. 376.
• * 1.287

  Grant be∣fore property vested.
• * 1.288

  A Jur••rs name in the distringing mistaken.
• * 1.289

  Devise to execute.
• * 1.290

  Proper benefit.
• * 1.291

  Second deli∣verance.
• * 1.292

  Thoughts are not to be uttered.
• * 1.293

  Felony.
• * 1.294

  Nomine poe∣ne against an Assignee.
• * 1.295

  Trin. 36. E. rot. 842.
• * 1.296

  Demand.
• * 1.297

  A Jointe∣nants Lease to begin af∣ter his death.
• * 1.298

  Ewdalls case.
• * 1.299

  Insufficient declar. for words.
• * 1.300

  Substance, Form in a De∣claration.
• * 1.301

  Debt.
• * 1.302

  Impossible con∣dition void.
• * 1.303

  Teste of the Venire mistaken.
• * 1.304

  Distinct grants.
• * 1.305

  Ejectment.
• * 1.306

  Forfeiture of a particu∣lar tenant.
• * 1.307

  Lease by Te∣nant for life.
• * 1.308

  Forfeiture.
• * 1.309

  Entry for con∣dition broken.
• * 1.310

  Forfeiture.
• * 1.311

  Surrender.
• * 1.312

  Lease by Te∣nant for life.
• * 1.313

  Knowledge.
• * 1.314

  Lessee praies in aid.
• * 1.315

  Tenant at will determines his own Will.
• * 1.316

  Determination by the act of the Law of a third perso••.
• * 1.317

  Divorce.
• * 1.318

  Grant.
• * 1.319

  Outlary.
• * 1.320

  Statute Merchant.
• * 1.321

  Intent in every contract.
• * 1.322

  Delivery.
• * 1.323

  Heriot ser∣vise may be seised.
• * 1.324

  Seasure makes a seisin
• * 1.325

  New assign∣ment.
• * 1.326

  Bastard.
• * 1.327

  Perjury.