REPORTS OF THAT REVEREND AND LEARNED JUDGE, SIR HUMPHREY WINCH KNIGHT; Sometimes one of the JUDGES of the COURT OF COMMON PLEAS.  
Containing many Choice Cases, and excellent matters touching Declarations, Plead, Demurrers, Judgements, and Resolutions in points of LAW,  
In the four last years of the Reign of King JAMES, faithfully Translated out of an exact french Copy, with two Alphabetical, and necessary Tables, the one of the names of the Cases, the other of the principal matters contained in this Book.  
LONDON Printed for W. Lee, D. Pakeman, and G. Bedell, and are to be sold at their Shops in Fleetstreet, 1657.   

COURTEOUS READER,  
THe principal end in publishing Books is the profit which redoundeth to others, and what improvement can there be either more noble in itself, or of greater advantage to the receiver then that of knowledge, and especially of the Laws of this Nation in which you live, and by which your actions ought to be regulated: the study of other learning being private, fit for Universities, then Common wealths, fuller of contemplation, than experience, and more laudable in Scholars themselves, then beneficial unto others; if therefore either benefit will prevail with you, or delight persuade you, than (I beg favour to speak with some confidence) you will find both those desired motives in this solid Book to Court you: the Author of the greatest part of them was for many years a grave Judge of the Court of Common Pleas, reverend for his learning and integrity, and honourable for his employment, of whose death, 
The death of Justice Winch 4. Febr. vide fol. 125.  and great worth you will find a deserved testimony near the end of these Collections; some eminent and judicious Pen (unhappily by time buried in oblivion) hath made some addition of Cases to our great Author no less acquaint, then useful, which being found in one entire exact french copy; you have here with all diligence faithfully rendered in English for public use: touching the errors which may occur in this Tract, be pleased to distinguish, some being of more consequence than others: the first you will find particularly corrected in the usual place after the end of this Book, and the rest an easy judgement may in Transitu rectify which is hoped are not many: this copy coming to some ingenuous hands, it was thought fit to expedit the printing thereof to prevent other spurious Copies in prejudice of the public, especially at this time wherein the press is prostituted to so much ignorance, and lawless liberty: and now to speak a modest word of the merit of this work, not only as an invitation to the buyer, and for his benefit, but rather with due respect to the memory of our Author, who (is hoped) will live in this posthumous issue, and surely it is no small prejudice to the professors of Law that the rest of his labours are abortively smothered. The Cases herein you will find well polished in the stating, and solidly canvased in the debating; both the Bench, and Bar of that Court (with leave be it spoken) being then as well supplied with deep Sages of the Law, as in divers years either before, or since: expect matter here, not eloquence, and the grateful nutriment of the understanding, rather than the pleasing condiments of Rhetoric to tickle the Fantasy. Farewell.   

A Table of the several names of the cases contained in this Book.  

A  
AYlesworth against Harrison 19  
Widow Archers case 20  
Allen against Brach 27  
Avis against Genney 65  
adam's against Ward 90  
Austin against Beadle 113  
Ashley against Collins 114   

B  
BArtlet against Bartlet 2  
Bull against Fankester 19  
Buckley against Simonds 35  
Bishop of Gloucester against Wood 46 57  
Batterseys case 48  
Bulloign against Gervase 58  
Buckley against Simonds 59  
Brigs case 65  
Bret and Ward 70  
Bacon against Weston 70  
Barley against Foster 71  
Boon and the Bishop of Norwich 72  
Blunt and his wife against Hutchinson 73  
Bray against Sir Paul Tracie 79  
Baker against Baker 100  
Brown and Ware against Barker 102  
Bubbles case 103   

C  
AUditor Curl for words 33 39  
Clotworthy against Mitchel 49  
Countess of Berk. against Sir Peter Vanlore 77  
Cook against Cook 90  
Crompton against Philpot 102  
Cooper against Edgar 103 104 etc. 115 116   

D  
DUncombe against the Bishop of Winton 7  
Duncombe against the University of Oxford 11  
Davies against Turner 18  
Dodderidge against Anthony 52  
Davies Eliz. against Hawkins 125   

E  
EArl of Northumberland and Earl of Devon. 6  
Ewer and Vaughan 8  
Empson against Bathurst 20 50   

F  
FLemming against Pitman 63  
Foster's case 72  
Ferrer against English 73   

G  
Goddard against Gilbert 10  
Grice against Lee 16  
Sir Edward Grubham against Sir Edward Cook 20 23  
Gratwick against Gratwick 23  
Good against Bawtrie 34  
Gell against white 35  
Gage against Johnson 53  
Grazier against wheeler 76  
Good against Good 78  
Goldingham against Sir John Sands 81 88  
Godsals case 90  
Gibson against Ferrer 114 120   

H  
HArrington against Harrington 9  
Harris against wiseman 19  
Doctor Hunt against Allen 25  
Hill against Waldron 29  
Hoels case 30 54  
Harvey against the hundred of Chelsam 66  
Hasset against Hanson 66  
Heath against Trist and Cawtrel 73  
Holman against Tuke 80  
Hickford against Machin 82 83 etc.  
Hickman against Sir William Fish 100  
Holman against Sir Thomas Pope and his wife 102  
Holbeach Sir Thomas against Sambeach 102  
Hilliard and Sanders 109 110 111 121 122  
Holt and Rand against Holt 112  
Hitcham Sir Robert against Brooks 123 124   

I  
IOhnson against Norway 37   

K  
KIng against Bowen 2   

L  
Lewing against March 4  
LLewellings case 11  
Sir Henry Lelloe warden of the Fleet 35   

M  
Mayor against two Bailiffs 16  
Maps against Sir Edward Sidley 22  
Mabies case 23  
Mackwilliams case 41  
Mankleton and Allen 73  
Marriots case 78  
Methol against Perk 112   

N  
NOrton against Lakins 1  
Napper Sir Robert 74 87   

O  
OXford and his wife against Goldington 64  
Over and her husband against Tucker 82   

P  
POtter against Turner 7  
Parson and Morlee 19  
Pleadal against Gosmore 67 124 125  
Potter against Brown 70 89  
Priest and King 77  
Portington and Beamond 79   

R  
REignolds against Pool 1, 44  
Rives case 48   

S  
SAckvil against Earnsby 4  
Sir George Spark 6  
Savil against Thornton 13  
Sir George Stripping in waste 15  
Spencer's case 57  
Sparrow against Sowgate 61  
Sheldon against Bret 63  
Summers' case 66  
Stephens and Randal 77  
Summers against Dugs 80  
Sheiss against Sir Francis Glover 100   

T  
TOpping against King 5  
Tutter against Friar 7  
Trehern against Claybrook 26 69  
Thorntons case 63  
Theakers case 71  
Thorns case 76  
Trenchard Sir George against Hoskins 91 92 93   

V  
VAnheath against Turner 24   

W  
WAste against Pretty 3  
White against Williams 5  
Wetherly against Wells 6  
Wright against Black 28 54  
Whitgift against Sir Francis Barrington 31  
Webs against Barlow 62  
Sir Michael Wharton and Sir Edward Hid 72  
Westley against King 75  
Weaver against Best 75  
Woodley against the Bishop of Exeter and Manwaring 94 95 96 etc.  
Wen against Moor 101    

EASTER TERM, In the 19 of KING JAMES in COMMON BENCH.  

Easter Term. 19 Jac.  
IT was said by Warberton justice, that in the time when Anderson was chief Justice of this Court, that it was adjudged, that where a Coppiholder alleged a custom within a Manor to be, that every Coppiholder may cut trees at his pleasure, that this custom is against common Law, and also his opinion was, that where a custom was alleged to be, that if a Tenant in ancient Demesne devise his land to another without other words expressing his intent, that the devisee shall have the fee simple: & Hobert inclined to this opinion, and by Hutton and Winch he shall have fee by the custom, and accordingly it was adjudged.  

Norton against Lakins Ent. Hill. Jac.  
NOrton against Lakins Ent. Hill. 18. Jac. in debt upon an obligation, the condition was to stand to the arbitrement of J. S. and the Defendant pleaded that he made no arbitrement, the Plaintiff shown the award and the breach. And the case in effect was, that the Plaintiff and the Defendant put themselves upon the arbitrement of J. S. of all matters between them till the first of March 18. jac. and he made an award that each shall release to the other matters and differences between them till the ninth day of March 18. Jac. and it was argued by Sergeant Henden that the award is void, for by their release the obligation upon which this action is brought is discharged: but it was ruled to be a good award, for though it shall be void for that part of the award, yet it shall be good for the rest; but Winch doubted of the case.   

Reynolds against Poole; Ent. Hill. 18. Jac. Rot. 641.  
REynolds against Pool Ent. Hill. 18. jac. Rot. 641. Reynolds libelled in the spiritual Court against Pool, for the Tithes of a Park, and Pool prayed to have a prohibition, and he shown that he, and all those whose estate he had in the Park, had held this as a Park till the 11. of Eliz. at which time it was disparked, and that time beyond memory etc. the occupiers had used to pay to the vicar of the parish a Buck in Summer, and a do in winter in lieu and satisfaction of all Tithes due to the Vicar. And it was argued by Sergeant Henden, that this is not a sufficient cause to grant a prohibition, because that now the Park is destroyed and sowed, and so the prescription fails, for it was annexed to the Park: secondly the question is for the Tithes of corn and those do appertain to the Parson and not to the Vicar, and he cited a case between Hawk and Collins in this Court; there the prescription was, that he and all those, whose estate he had, had used to pay to the Vicar a certain thing in leou and satisfaction of all Tithes due to the Parson, and for this a prohibition was denied.  
Shirley: he had preserved that he had used to pay this to the Vicar, and this shall be intended for Tithes due to the Vicar, and not to the Parson: Sergeant Ashley to the contrary, and that the prescription is good for this extends to the soil and not to the Park; Hobert said, that Tithes of corn are sometime payable to the Vicar, and not always to the Parson; for put the case that at the time of the derivation of the Vicarage out of the Parsonage the composition was that the Vicar shall have the Tithes of that Park, in th●s case by reason of such general terms, he shall have the Tithe of hay, corn, deer, or any other thing which grows in that. And the composition being made before time of memory, no man can say but that it was made in such manner, and the case of Okenden Cowper in this Court, in which the Court was divided, differed from this case, for there the prescription was to pay a Buck arising and coming out of the Park, and there was no deer left in the Park: and Hutton agreed, for there he destroyed his own prescription, and he agreed with Bracies case put after, for there was a contrariety in the prescription. Warberton; the case of Bracie in this Court was, that the Parson libelled against him for the Tithe of corn, where this was due to the Vicar and not to the Parson and denied him for that reason, for he may not plead the title of another man; and the Parson and the Vicar ought to agree among themselves; but in our case no Tithes are to be set out, and for that reason he may plead this, but it seems to me that the prescription shall go to the soil, and not to the Park & when it is destroyed, he shall pay Tithes in kind as a garden or an orchard, so long as it is used as a garden or an orchard, that the occupier of that shall pay a penny: now if this be ploughed and converted to other use, he shall pay Tithes in kind: and Hobert agreed to the case of the garden or orchard, for the penny is paid for the herbs or fruit. Winch was absent: and Hutton said, that the prescription shall go to the soil, and the Vicar by prescription may have the herbs of the glbe of the Parson: Hobert, the Park is only an appellation or name of land, and this name or appellation may not pay Tithes, but the land itself: and put the case that a man had always paid 10. s. for the Tithes of a meadow, and after he sowed that with corn, here for the payment of this 10. s. he is discharged: Warberton, I deny the case of the meadow; and so it was adjourned.   

Bartlet against Bartlet, Trin Jac. Rot. 1784.  
TR. 18. jac. Rot. 1784. Richard Bartlet brought an action upon the case against Thomas Bartlet, and he declared upon an account, and shown that the Defendant was found in arrearages in 20. l. which he promised to pay when he should be requested, and now the Plaintiff had not laid any day or place of request in his declaration, and Ashley moved in arrest of judgement, that the declaration is not good, for the request is also parcel of the promise: but Hobbert chief justice said, that when a man brings an action upon the case for a thing which was originally a debt, the Plaintiff need not lay any time or place of the request, but when the action is brought for a Collateral thing, there he ought to lay a day and place of the request, and so it was adjudged according in the same case.   

King against Bowen, Ent. Trin. Jac. Rot. 1755.  
KIng againk Bowen entered Tr. 18. jac. Rot. 1755. William King brought an action upon the case against john Bowen for these slanderous words spoken of him, King is a false foresworn knave and took a false oath against me at a commission at Witham, and the Defendant justified the words, and it was found for the Plaintiff, and Henden said, that it had been alleged in arrest of judgement that the words are not actionable, and he said that he agreed if one say of another that he was foresworn in a Court which is not a Court of record, that none action will lie, because the party is not punishable for that in perjury, but in our case the commission issued out of the high Commission Court, which Court to the examination of witnesses is in nature of a temporal Court, and had been confirmed by act of Parliament: and Sergeant Harvey argued to the contrary, that the first words are not actionable, and then the subsequent words are uncertain, and yet if one say of another, that he was foresworn at the Common Pleas bar, the words are actionable, for it shall be intended that this was upon examination in the execution of justice: Hobert, if a man is foresworn in a Court Baron before the Steward, this is perjury, but in our case the words are altogether uncertain, for it doth not appear what authority the Commissioners had, nor yet in what manner he was forsworn; and justice Hutton said, if one man say of another he was foresworn before the Bishope of S. this is not actionable, but if one say of another, that he was forsworn before the Bishop of S. upon examination by him by virtue of a Commission issuing out of the Chancery, this is actionable, and Hutton agreed to the case of the Court Baron, & the same Law by him if that be in a Court Leete, but in the principal case judgement was arrested.   

Wase against Pretty Ent. Hill. 16. Jac. Rot. 1716.  
WAse against Pretty Ent. Hill. 16. jac. Rot. 1716. in an ejectione firm, the case was, that one joint Coppiholder did release to his companion, and the question was, whether this is good without surrender and admittance, for it was objected, if this shall be good, than a Copyhold shall pass without the assent of the Lord, but it was resolved by Hobert, Warberton and Winch (Hutton being absent) that the release is good, and Warberton said, that by Littleton, if 3. joint-tenants are, and one of them release to another, he to whom the release is made is in by the releasor, but if there are but two, than he is in by the Lord or from the first conveyance; Winch, if two joint-tenants are in capite, and one release, to the other, the King shall not have a fine for this Alienation; but Hobert said, that the practice is otherwise at this day, but he said, that when one joint Tenant releases to another, he is in by the first conveyance, and in the case in question the release shall be good without surrender and admittance, for the first admittance is of them and of every of them, and the ability to release was from the first conveyance and admittance; it seems if a Tenant in Capite alien upon condition, and afterwards he enters for the condition broken, he shall not pay a fine for such an alienation: Hitcham Serjeant said, that if land be given to two upon condition that they shall not alien, and one releaseth to the other, this is no breach of the condition; Hobert, if the King grant you his demesnes, you shall not have his Copyhold.  
Winch said, that it was adjudged in this Court, that where one erected a house so high in Finsbury fields by the wind mills that the wind was stopped from them, that it was adjudged in this case that the house shall be broken down.   

Goddard against Gilbert.  
GOddard brought an action upon the case against Gilbert for these words, thou art a thief, and hast stolen 20 loads of my furzes, and upon not guilty pleaded it was found for the Plaintiff, and it was moved in arrest of judgement by Hitcham, that these words are not actionable, for though the first words of themselves had been actionable, yet when those words are coupled with other words which do extenuate them, it is then otherways, for if a man say thou art a thief and hast stolen my apples or my wood, it shall be intended that the apples and the wood were growing, and he said there is no difference to say in this case you are a thief and have stolen 20 loads of my furzes, but it was said by justice Warberton, that the furzes shall be intended to be cut, for that is the most natural and proper signification of the words; and Hobert chief justice said, that it is true that it is the most proper signification of the words, but yet they are furzes when they are growing as well as when they are cut down; and Hobert chief justice said, if a man say of another, thou art a thief, and hast stolen my corn; in this case the words shall be taken in the better sense, and judgement in the principal case ought to be arrested, and it was the opinion of him and of Winch, that there is no difference where a man said thou art a thief and haste etc. and thou art a thief, for etc. ut supra; but it was adjourned.  
Winch justice said, I was of counsel in the King's Bench in a case where a man had a window in the backside of his house, and another man erected a wall within a yard and half of that in his own ground, and adjudged in an action upon the case that the wall shall be broken down; Warberton, certainly this was an ancient house, but Winch said that made no difference.  
It was ruled, that after imparlance in debt, upon an obligation the Defendant shall be received to plead that he was always ready to pay, notwithstanding it was strongly urged 13. Eliz. Dyer 306. is to the contrary.   

Gilbert Lewing against Nicholas March.  
GIlbert Lewing brought an action of covenant against Nicholas March, and declared, that Charles Cornwallis had granted the next avoidance to the Church of D. to Thomas March, and that Nicholas March was his Executor, and that Nicholas March assigned this to Gilbert Lewing his executors and assigns, to present to the same Church when that shall become void, and covenanted that the same person, who shall be so presented by him, shall have and enjoy that without the let or disturbance of the said Charles Cornwallis or Nicholas March, or any of them, or any by their procurement; and after Gilbert Lewing presents I S. and after I. W. presented an other claiming the first and next avoidance, by the procurement of Charles Cornwallis, and ruled that the declaration was not good, for it ought to say that Charles Cornwallis granted to I. w. the next avoidance and procured him to disturb, and that by his procurement he was disturbed; Athow, It seems to me to be but little difference to say, he disseised me by the procurement of I. S. and he commanded I. S. to disseise me, and he did that accordingly at his command.   

Sir Edward Sackvil against Earnsby.  
Upon a motion made by Sir Randal Crew in the behalf of Sir Edward Sackvil against Earnsby, the case was, that two brothers were seized of land, to the eldest for life, the remainder to the youngest in tail, and they covenanted with Sir Edward Sackvil to levy a fine to him of that land, & before the fine acknowledged the eldest brother died, and the question was whether the youngest shall be compelled to levy the fine, and precedents were commanded to be searched concerning that matter.  
Note, that it was said, that where a commission issued out of the Court of wards to 4 persons or to any 2 of them, and one of them refuse to be a Commissioner, and the other 3 sit as Commissioners, and he who refused was sworn and examined by them as a witness, and ruled that this is good, for though he refused to be a Commissioner, yet he is not excluded to be sworn as a witness.  
In evidence to the jury the case was, that Tenant in tail bargained and sold his land to I. S. and his heirs, and I. S. sold to the heir of the Tenant in tail being of full age, and Tenant in tail died, and the heir in tail claimed to hold his estate, and the doubt was, whether he was remitted or no? Hobert was of opinion, that after the death of the Tenant in tail that the heir is remitted, for if Tenant in tail bargain and sell his land, the issue in tail may enter, and where his entry is lawful, there if he happ● the possession, he shall be remitted; Hutton and Warberton justices contrary. For at the first by the bargain and sale the son had fee, and then the estate of the son may not be changed by the death of the father, he being of full age when he took this estate, and this was in an Ejectione firm of land which concerns Sir Henry Compton and the Lord Morley and Mounteagle.   

White against Williams.  
White brought an action of account against Williams as his Bailiff to his damages 100 l. the Defendant pleaded he never was his Bailiff, and it was found against him, and the judgement was given that he should render an account, and at the day the Defendant made default; Ideo consideratum est per Curiam quod Querens recuperet versus predict. Defendant. 42. l. 10. s. and upon that the Defendant brought a writ of error, and assigned for error, that the Court gave judgement of the value without enquiring of the value, and it was holden by Gaudy and Fenner only present, that the judgement ought to be given which the Plaintiff had counted of. Baron Altham contrary, for the Court may in discretion give a lesser sum Hill. 43. Eliz. B. R. vide 14. E 3. Account 109. 20. E. 3. 17.   

Sir George Topping against King.  
Waste was assigned in the cutting of Elms and other Trees to such a price, and judgement was given for the Plaintiff by nihil dicit, and a writ of inquiry of damages issued upon that, and the jury found to the damages of 8. s. and upon this Davies the King's Sergeant moved to have a new writ of inquiry, and that the old writ shall not be returned, for the damages are too little; Winch said, all is confessed by the nihil dicit. Hobert, The jury here have found the value, and precedents were commanded to be searched, and Hobert said, that if an information is for engrossing of 1000 quarters of corn, and judgement is given by nihil dicit, and a writ of enquiry issues which finds him guilty of 100 yet this is good. And not, that at another day the case was moved again, & it was between Sir George Topping and King, and it was said, if a man recover in waste by nihil dicit, and a writ of inquiry issues, the jury in this case may inquire of the damages but not of the place wasted, for this is confessed and so are the precedents according; and Hobert said, if the Defendant is bound by the nihil dicit as to the place wasted, for what cause shall not he be bound as to the damages, and by all the Court if the jury find damages only to 8. s. the Plaintiff shall not have judgement, for it ought to be above 40. s. Hob. this is in the discretion of the Court in this case, and it was also said in this case, that upon the grant of all the trees, and after the grantee cut them, and new ones grow upon the slumps which in time will be trees, that in this case the grantee shall have them also by Hobert.   

Wetherly against Wells in an action for words.  
Wetherly against Wells in an action upon the case for these words, thou hast stolen hay from Mr. Bells racks, and upon not guilty pleaded it was found for the Plaintiff, and now it was moved in arrest of judgement, because he had not showed what quantity was of that, and perchance it may be of so little a value that it is not felony, and the rather because it is hay from the Racks; but Hobert contrary, that judgement shall be given against the Defendant for the Plaintiff, for it hath been adjudged lately in this Court, that where a man was charged with petty Larceny to steal under the value of 12. d. that an action of the case will lie, for the discredit is not in the value, but the taking of that with a felonious intent, and yet it had been adjudged in this Court, that where one said of another, thou art a thief, and hast stolen my trees, that in this case an action will not lie, but this is by reason of the subsequent words trees, for it is said Arbour dum crescit, lignum dum crescere nescit. And Winch said, that it had been adjudged actionable to say, thou art a thief and hast stolen my corn, and yet perchance not exceed 2. or 3. grains, and Warberton said, that it had been adjudged in the King's Bench, that where one said thou art a thief and stollest the corn out of my field, that no action will lie.   

The Earl of Northumberland and the Earl of Devon.  
NOte, that in the case of the Earl of Northumberland and the Earl of Devon. execution issued out for damages recovered, against the Bailiff of the Earl of Northumberland by the name of I. S. of D. and there was I. S. the father and I. S. the son, and the father being dead the son issued his writ of Idemptitate nominis, and he prayed to have a supersedeas; and Warberton demanded of Brownlow if he had any such precedent to award a supersedeas in such case, who answered, no, and Warberton and Hutton being only present said, that they will advise of that.   

Sir George Spark Prescription.  
IN a Replevin for the taking of a horse in 5. acres of land in such a place, and the Defendant avowed as Bailiff to Sir George Spark, and shown that Sir George Spark, and all those whose estate he had in the land, had used time beyond the memory of man to have herbage and pasturage in all the 5. acres when that was not sown, and upon this plea the Plaintiff demurred; Ashley argued for the Plaintiff, that the prescription is void, and this is not like to the case of a common, for a man may prescribe to have common in another man's land, for this is but a reception of the profits with the mouths of his cattle, but in our case it is all one as to prescribe to have the land itself, and I may not prescribe to have land itself, for I may not say that I and my ancestors had used to have such land, for such a prescription is void: to which Hobert chief justice and all the Court agreed as to that point, and then to prove that this is all one as to prescribe to have the land itself, he said that if a man lets the profits, and the herbage of land for years, this is a lease of the land itself, as was lately adjudged in this Court; which was also granted by the Court, also he said that this appears by the 27. of H. 8. 12. that a man shall have a praecipe quod reddat of pasturage or herbage, but not of common, and a formedon lies of pasturage 4. E. 4. 2. & the Regist. fo. 177. Ejectione firm lies of pasturage; and so he concluded that upon the matter he prescribed to have the land itself; but Hobert chief justice and all the Court to the contrary, that the prescription is good, for that may have a good beginning by grant, for a man may lawfully grant the pasturage and the feeding of his land when that is not sowed, and by consequence, if that may be good by grant, it may be good by prescription; and judgement was commanded to be entered for the Defendant. See prescription 51. and 52.  
In trespass the Defendant pleaded in bar, that such a one was seized of land in the right of his wife, and that his wife died seized, and that he was heir to her, entered and gave Colour to the Plaintiff, the Plaintiff replied that the husband and wife were jointly seized, and that the wife died, after whose death the husband was seized by Survivor-shipp, absque hoc that the wife died seized; and Warberton and Hutton being only present, the traverse is not good, that the wife did not die seized, but it ought to be that she did not die sole seized.  
In trespass for the taking of goods in a place in yorkshire, and the Defendant justified as servant to the Bishop of Durham, and he shown that the Bishop of Durham had a Fair, and that time beyond memory he and his predecessors had used to seize the cattle that were sold, if he who bought them refused to pay toll, and if the thing taken was not redeemed within such a time, he might sell the same. And he justified in a place in Durham, absque hoc that he was guilty in Yorkshire; and by Warberton and Hutton this is a good traverse, to the place, for it is local.  
If a Capias issued, here to have the body of such a one at Westminster such a day, and the Sheriff bring the body, or return the writ before the day, this is good by justice Warberton.   

Tutter against Friar.  
TUtter against Friar; a rend charge was granted for years with a nomine poenae, & a clause of distress if that was not paid at the day, and the rent was behind, & the years incurred, and it was moved by Athowe, that though the years are incurred, that he may distrain for the nomine poenae, but the Court was of a contrary opinion, for that depends upon the rent, and the distress is gone as to both of them.   

Duncombe etc. against the Bishop of Winchester, etc.  
DUncombe and others against the Bishop of Winchester, and others Defendants, in a Queen Imp. and the case was, that Sir Richard Weston was seized of the said Church in fee, in gross, and was convicted of recusancy, and a Commission issued to certain Commissioners, to seize two parts of his lands and goods, and they seized this advowson inter alia, into the hands of the King, and the King granted the advowson to the Plaintiff, and the Church became void, and whether the King, or the university of Oxford shall have that, was now the question, and it was appointed to be argued the next Term.   

Potter against Turner.  
IN the King's Bench, Pasch. 19 jac. the case between Potter and Turner, was as I conceived to this effect; A. was indebted to B. in 20. l. and C. was indebted to A. in 30. l. and A. in satisfaction of the debt, which he owed to B. assigned the debt of 30. l. which C. owed to him, and made a letter of attorney to sue in his name; A. and B. acquainted C. with this agreement, and C. promised to B. in consideration that he will forbear till such a day that he will pay him the money; and upon this promise he brought the action against C. and he pleadded non assumpsit, and it was found for the Plaintiff. And it moved in arrest of judgement, that the consideration was not sufficient, according to Banes case Coke. 9 If executors who had not assets promise to pay a debt of the Testator, this shall not bind them, because they who made the promise were not chargeable, but on the other side, it was said by Whitwick of our house, that this was a good consideration, for the assignment of that debt was lawful, and no maintenance at all, as appears by 15. H. 7. 6. and a recovery by B. against C. is a good plea in bar, in an action brought by A. against C. but Dodderidge Houghton and Chamberlin only present to the contrary, for B. here had only an authority to sue, and this is at all times Countermandable by A. As if I deliver goods to my servant to deliver over to I. S. and I. S. promise my servant that in consideration that he will deliver them to him, he will give him so much money, this is no consideration, except that they are delivered accordingly, for this is only an authority to deliver goods which is always countermandable by me. And judgement was entered for the Defendant. vide 4. E. 4. 14.   

Ewer and Vaughan.  
IT was said by Dodderidge and A. in the argument of the case, between Ewer and Vaughan, that it had been adjudged by all the justices, in one Trewmans case, that no writ of error lies of a judgement, given in the Stanneryes in Cornwall.   

A Prohibition to the Admiralty.  
MAny poor Mariners sued one jones the Master of a ship, for wages in the Admiral Court, and judgement was given against jones, and now he prayed to have a prohibition, and he suggested that the contract was made, at London in England, and so the suit was not maintainable, in the Admiral Court, but the prohibition was denied, because he had not sued his prohibition, in due time, viz. before a judgement given in the Admiral Court, which in point of discretion they disallowed; and also these are poor Mariners, and may not be delayed of their wages so long, and besides they may all join, in a Libel in the Admiral Court, but if they sue here, they must bring their actions several, for they may not join here in an action, and therefore it is good discretion in the Court, to deny the prohibition.  
Paston case, it was said by Hobert, that a Coppiholder may hedge, and enclose, but not where it was never enclosed before, and agreed by him, and Warberton, that a Coppiholder may dig, for Marl without any danger of forfeiture, but he ought to lay the said Marl upon the same Copyhold land, and not upon other land, and this was upon the motion of Hendon Serjeant.  
In a case which concerned, the Lady Mollineux and Fulgam, the case was in an Ejectione firm, that the jury found the defendant guilty, of 10. acres, and the judgement was entered of 20. acres, and upon that the defendant brought a writ of error, in B. R. and now the Plaintiff prayed that this might be amended: and Finch argued, that this aught to be amended, and he cited a case. Pasch. 8. jac. Rot. 525. john Chilley was Plaintiff in debt, and recovered, and the judgement was, that the aforesaid, Henry Chilley should recover etc. and upon that error, was brought in the exchequer chamber, and that was assigned for error, and yet after Pasch. the 9th. jac. this judgement was amended in the King's Bench, and john inserted for Henry, and diminution was alleged, and the first judgement was affirmed in the exchequer chamber, and he cited a case, M. 8. jac. Rot. 1823. in C. B. dower, was brought of 4. Gardens, and judgement was given, to recover in 3. and upon this error was brought, and yet this judgement was afterwards amended, and he cited a case, Pasch. 17. jac. between Shirley and Underhil in a Qu. Impedit, where it was amended after error brought, and he vouched one Masons case 12. jac. in an action upon the case, against the husband, and the wife, for words which were spoke by the wife, and judgement was given against them, and that the wife capiatur, where it should be husband and wife Capiantur, and yet this was afterwards amended: Hendon contrary, after error is assigned, it may not be amended, in point of substance, and the case of Chilley may be good Law, for the misnaming only et praedictus Henricus, where was no Henricus before, could not have other signification, or intendment than john who was named before in the record; Warberton and Hutton, the misnameing Henry for john, is matter of substance clearly, and then Hendon said, that now the judgement shall not be amended, because the prayer of the Plaintiff, to have that amended came too late, because it is after error brought, and diminution alleged; and the record certified, and then both the parties are concluded, but if only, a writ of error was brought, and no diminution was alleged, that then the judgement may be amended, and he said, that he had not found in any book, where any amendment was after diminution alleged, as here, and he cited 22. E. 3. 46. in dower, it was assigned for error, that no warrant of Attorney was entered for the Defendant, and ruled that this may not be assigned for error, a●ter a scire facias sued; see 4. E. 4. 32. but Hobert chief justice said, that it shall be a brave case, that our judgements shall be made good, or bad, at the pleasure of Clarks, and we shall not be able to amend them, to which Warberton also agreed. And day was given over to speak to that again, and after, in the same Term this judgement was amended, per Curiam.  
Action of debt upon a bond, and the Condition was to save the obligee harmless, of a nomine poenae, against Mary Moor, and he pleaded that he had saved him harmless, and per Curiam this is not good, for if he will plead in the affirmative as here, he ought to show how he had saved harmless, but if he had pleaded in the Negative, as he might well, then non damnificatus is a good plea generally.   

Harrington against Harrington in account.  
HArrington brought an action of account against Harrington, and declared of the receipt of moneys, by the hands of a stranger, and the Defendant pleaded in bar a gift of the same money, afterwards by the Plaintiff to him; and it was argued by Towse, that this was no plea in bar of an account, but it is a good discharge before Auditor's, and he cited 28. H. 6. 7. Hendon to the contrary, and said the opinion of Brian chief justice 21. E. 4. is that he may plead that in bar of account; and Warberton justice being only present agreed, for by the gift it is his own monies, and herefore he may plead that in bar.  
It was said by Warberton, that if an Advowson is holden of the King, and the Tenant alien without licence, that the King may not seize that without office, which was granted by Hobert, and by Winch only present, and in the same case by Warberton, that a scire facias, issuing against the Alienee will not entitle the King, but aught to be an office found, and it was also said in the same case, by Sergeant jones, that the ordinary shall have 28. days to examine the ability of one who is presented by the canon Law; and the same Canon Law is, that the Patron shall not present another during the 28. days.   

Goddard against Gilbert.  
GOddard brought an action upon the case, against Gilbert thou art a thief, and hast stolen 20. load of my furzes, and upon non culpabilis pleaded, it was found for the Plaintiff; and now it was moved in arrest of judgement, by Hitcham, for where words may be taken in a double sense, one actionable, and another not actionable, they shall all times be taken in the better sense, and in our case, to take furzes may be felony, and it may be not felony, for if they are growing they are not felony, and it shall be intended that they were growing, rather than cut down, and no man will presume, that any will take 20. loads of furzes, with a fellonius intent, because the carriage of them is visible to all the world, for it shall not be intended, that he carried those in the night, and so he prayed that the Plaintiff may be barred.  
Attoe Sergeant contrary; words which implies a double signification, shall be taken in the worse sense, which tends most to the disgrace of the party, for they shall be supposed, to be spoken in malice, and so with a purpose to defame the party, and he cited a case, Trin. 2. jac. B. R. Rot. 663. Kellam against Monest, thou art a thief and hast stolen my corn, and adjudge to be actionable. Hobert, Warberton, and Winch contrary, for words shall be taken in the better sense, and not in a strained sense to punish the party which spoke them, as if one say to another, I wonder you will eat, or drink with him, for he hath the pox, now every one that heareth, that will suppose, that he means the french pox, and yet in a legal signification it shall not be taken, but in the better sense, for the small pox: but Warberton said, that if one say of another, that he is laid of the pox, an action lies, for it is intended the french pox; and Winch said, that those actions of slander, were known to law but of late times, and for that 26. H. 8. it was thought that an action would not lie, for calling another thief, and in the principal case, judgement was commanded to be entered, quod Querens capiat nihil per brevem suum, and note, that I saw Hobert show precedents to Winch, in a paper which were delivered to him by the Plaintiff, and drawn by his Council, and he said to Winch, that by those it seemed, that in the King's Bench they made a difference between, (for) and (and) as had been said before; and he marvailed much at that.  
In a Capias Ulagatum before judgement, the Sheriff returned that I. S. and I. N. rescoused the party etc. and Attoe moved, that the return was not good, for there aught to be additions, by which they may be sued to the outlawry, but Hobert and the Court hold this to be good without addition, for no statute, nor book will compel the Sheriff to give additions in this case. And it was said, that if the Sheriff in this case, return that the party himself, simul cum I. S. and I. N. made the rescouse, that this is not good, but in the principal case, it was ruled that the return was good, and the rescousers which were present, were committed to the fleet, Homan and Hull were rescousers.  
Upon the reading of the record the case was, that an executor brought an action against one upon a promise made to the Testator: in which the executor was nonsuite; and 3. l. costs given against him: and the Defendant bruught an action of debt upon that recovery, against the executors: and upon this it was demurred in law, and Sergeant Towse said, that there are two causes of the demurrer, first, whether the Defendant shall be charged as executor, and is not named executor, and secondly, whether upon the nonsuite of an executor, the Defendant shall have costs by the statute, of the 23. H. 8. Hobert chief justice, said to him you say well.  
Note that it was said, by Hobert chief justice, that if a man dies intestate, and he to whom the Administration appertains, is sued by others which pretend to be Administrators, and sentence is given against the right Administrator, and costs given against him, the costs shall not be of the proper goods of the Administrator, but of the goods of the intestate; as the costs which are spent in the spiritual Court, for the provate of a Testament, shall be only of the goods of the Testator; Hutton if the Legatee sue in the spiritual Court, for a Legacy, and recovers the costs, which he shall recover, shall not be of his own goods, but of the goods of the Testator, and no prohibition shall be granted, for any such sentence given in the spiritual Court: Hobert to the contrary; for if by such means the goods of the Testator are so wasted, that the debts, and legacies of the Testator, may not be discharged, a prohibition shall be granted, and in every case, where the sentence in the spiritual Court, crosseth the common law, a prohibition lies, and he said that in the case of one Barrow in this Court, it was his opinion, and the opinion of the rest of the judges, that if Administration be committed by force of 21. H. 8. and the Administrator pay all the debts and Legacies, that in this case, the ordinary had not power to dispose of the rest of the goods, to the children of the intestate, but they shall remain to the Administrator, and that by the very intention of the Statute of 21. H. 8. but Hendon said, that he could show a precedent of that, and the Court desired that they might see, that if any such precedent were.   

LLewellings case.  
Upon the reading of a Record, in the case of LLewelling, the condition of the obligation was, that the obligor should surrender his Copyhold land, to the use of the obligee, and he pleaded that he had surrendered that, and upon that plea, the Plaintiff demurred, and it was adjudged upon the opening of the case, by Warberton and Hutton, being only present in the Court, that judgement shall be given for the Plaintiff, for the plea in bar is not good, because the Defendant had not showed when the Court of the Lord was holden.   

Duncombe against the University of Oxford.  
In a Qu. Impedit, in which Duncombe and others were Plaintiffs, who were grantees of the King, against the University of Oxford: and the case was, 
Hill. 18. Jac.  that Sir Richard weston was seized of an advowson in gross, inter alia and was convict of recusancy, and a Commission issued, to seize two parts of his land, and goods, and they seized this advowson, inter alia, and the King granted the advowson to the Plaintiffs, and the Church became void, and they presented, and were disturbed by the University of Oxford, and their Clerk, upon which they brought a Qu. Impedit, upon which a demurrer was joined: and Sergeant jones argued for the Plaintiff, and there was two points in the case, first, whether an advowson in gross, is given to the King by the Statute of the 28. of Eliz. and the Statute is, that the King shall seize the lands, tenements, & hereditaments, of such a recusant convict, and whether by the same statute an advowson in gross, shall be seized, and he held that it shall, for though perchance the word lands, and Tenements, will not carry that, being an advowson in gross, yet this word hereditament, will carry it to the King by force of the Statute, for it appears by dyer 350. that if the King grant an advowson, by the name of an hereditament, that in this case this will pass the advowson, and for that Coke 10. Whistlers case, the King by the grant an of hereditament, grants an advowson, by such words to a common person then by the same reason a common person may grant, that to the King by the same words: but it may be objected, that because an advowson in gross; is not valuable, therefore it is not given to the King; and upon this doubt upon the Statute of Wills, ●. H. 8. the question was, whether an advowson was devisable; by the name de bonis et Cattallis felon. Butler, and Baker's case, that they are not devisable, for it is not valuable, but the 4th jac. between Taverner and Gooch, which case may be seen in the new book of entries, that an advowson was devisable: before the Statute 5. H. 7. 37. it shall be assets, 9 H. 6. 55. recovery in value lies of that; but admit that this is only a thing of pleasure, for the advancement of a friend, yet that shall be given by the Statute to the King.  
But the second objection is, that though it is given to the King, yet it is not extendable upon the Statute by the Commissioners, for answer to that, see Sir Christopher Hattons case, 
13. Eliz. cap. 4.  upon the Statute of H. 8. which saith, if a man be indebted to the King, all his lands, and Tenements, shall be extended for this, and it was ruled, that an advowson was extendible for the debts of the King, and more is given to the King by the Statute, of the third of jaco. then was by the 28. Eliz. for by the 28. of Eliz. the King may not seize the land, but upon default of payment, of 20. l. by the month, but by the Statute of the third jaco. he may seize presently, and no election is given to the party: secondly, by the Statute 28. Eliz. the seizure of the King, was only in the nature of distress, for the payment of money, but by the Statute of 3. jac. the King had election to seize; to satisfy himself, and he may refuse to be satisfied at his pleasure, and so the Statute which gives this to the University, doth not take away the title of the King, and upon that he concluded, and prayed judgement for the Plaintiffs: Harris Sergeant to the contrary; the Statute of 3. jaco. is the only subject of the doubt, and the first branch disables the recusant to present, secondly, it makes the present action void, thirdly, after conviction the University shall present, and this in verity, is that upon which the doubt is founded, and upon that branch he conceived that the King had concluded himself, to present to the church of the recusant, for he being party himself to that act of Parliament, he had dismissed himself of all right, and Fortescue in laudibus legum Angliae non sunt ad voluntatem principis, sed ad voluntatem totius Regni, id est, the Statutes of England, are not at the will and pleasure of the King, but at the will of the whole Kingdom, Doctor and Stud. agreed, and 14. H. 8. Fo. 7. E. 6. Mounson; and the case of Alton woods, if the saving of an act of Parliament be repugnant, it is void, and so upon those cases, he inferred that the King being party to every act of Parliament, he is bound by that, and had dispossessed himself of the advowson, by the Statute of the 3. of jaco. which had given that to the University, and had abrogated the power of the King, to seize the advowson, by virtue of the act of 28. of Eliz. for otherwise, this Statute which gives that to the University, shall be merely void, and Statutes which are repugnant to former laws take them away, and do not confirm them, and though the Statute of the 3. of jaco. is in the affirmative, yet that hath taken away the force of the Statute, of the 28. Eliz. but it may be objected, that before the recusant is convict, the King had but a possibility, and then by the Statute of the 3. jac. the King had not dismissed himself, of that which in judgement of the law is but a mere possibility, and by consequence, because he had nothing at the time of the making of the Statute, but a possibility, he had not given that over, by the same Statute to the University; to this he answered, that the King may well give a possibility, and a future thing, as 9 H. 6. 62. 24. E. 3. 24. 30. E. Eliz. Treshams' case, and so he concluded, because that this is given to the University by act of Parliament, the King being party, he had dismissed himself; and the 3. jaco.— repeals 28. Eliz. as to that purpose, and so he prayed judgement upon the whole matter for the Defendants.  
And it was said by Hobert chief justice that this is indeed a case, of great weight and importance, and the Court agreed that the Statute, of the 3. jacobi gave only a power to the University of Oxford, and not an interest, but day was given over to argue this again the next Term.   

Sir George Savil against Thornton.  
SIr George Savil declared, that he was seized in fee, and in gross, of such a Church, and that he presented I. S. his Clerk who died, and that he presented another, and was disturbed by Thornton the incumbent▪ the Defendant pleaded, that a long time before the Plaintiff had any thing in that, the Prior of D. was seized of the advowson, and he being seized such a day granted the next avoidance, to one Golding, and that the advowson and the Priory, came to the hands of H. 8. by the Statute of 31. H. 8. by force of which H. 8. was seized, and afterwards the church became void, and the executor of Golding who was grantee of the next avoidance, presented his Clerk who was admitted accordingly; and afterwards he died, that H. 8. died seized of the advowson, which descended to E. 6. and so to Queen Mary, and from her to Queen Eliz. who was seized in the right of the Crown, and she being so seized granted the next avoidance, to one Buckley her Clerk, who was admitted, instituted, and inducted; after which Queen Eliz. died, and the advowson descended to King james; and in the 7th. year of his reign the Church became void, and he presented the Defendant, the Plaintiff by way of protestation, said that Queen Mary was never seized, nor died seized, and by protestation that Queen Eliz. was never seized, so that this might descend to King james, and for plea said that well and true it is, that H. 8. was seized, and died seized, so that this descended to E. 6. and that E. 6. such a year of his reign, granted that to Wyatt and his wife in fee, who granted that to the Plaintiff, and that Queen Eliz. presented L. only, absque hoc that E. 6. died seized, upon that it was demurred in law; and he shown the cause of his demurrer, first because the protestations which he had taken in his replication are not good, secondly the traverse is not good.  
And it was argued for the Defendant, by Bawtry Sergeant that the replication is not good, because he had taken that by protestation which is traversable, see the principal case of Gresbrook and Fox, and see the 22. H. 6. and then for the traverse he held that to be naught; First because he had traversed that which was but a mean conveyance. Secondly he had traversed that which he had confessed, and avoided; and thirdly he had not traversed that which he ought not to have traversed, and for the first it is put regularly in our books that a mean conveyance shall not be traversed, and the descent here from E. 6. is but a mean conveyance, and the substance is the presentation of Queen Eliz. and that ought to be traversed, 17. H. 7. 2. the Prior of Tower Hills case, there it said, if in Assize the Tenant plead, that the Plaintiff was seized, who enfeoffed one B. who enfeoffed C. who enfeoffed the Tenant, that it is no plea for the Plaintiff to say, that he was seized till the Defendant disseised him, absque hoc that C. enfeoffed him, and for that reason, he ought to traverse the feoffment, made by B. for the other was but a mean conveyance: see Dyer 107. in Trespass the Defendant conveyed to the donee, by 5. or 6. descents by dying seized, of the estate tail in every of them, the Plaintiff confessed the entail, and conveyed to him by feoffment made by the heir of the donee which was a discontinuance, and took traverse to the dying seized of the same feoffor, and ruled to be evil, for he ought to traverse the most ancient descent: 43. H. 3. 7. Secondly it is evil, because he had confessed the seisin of E. 6. and the grant by the same King to Wyatt, and so had confessed and avoided the seisin of the same King, and then the Law will not suppose that E. 6. purchased that again, and for that the traverse of his dying seized is evil, when he had sufficiently confessed and avoided that before, as Dyer 336. in Vernons case, a descent was pleaded to the heir from his ancestor, the other party said, that the ancestor devised that to him, absque hoc that this descended to him as son and heir, and ruled to be evil, for a traverse needs not when he had confessed, and avoided that before: Vide 14. H. 8. Sir William Meerings case, 26. H. 8. 4. by Fithzherbert, but Brook in the abridgement of the same case, said that if the traverse is evil than he had waved the plea before, and all was evil: 7. E. 4. by Littleton, for hereby the representation of Queen Eliz. she had gained the inheritance to the Crown, and then the traverse being evil, he had waved the former plea which was good without traverse, and this seisin in the Crown is not answered, but by way of argument as here 14. H 6. 17. he ought to traverse absque hoc that he died in his homage. 20. E. 4. 5. 35. H. 6. 32.  
Sergeant jones to the contrary, and as to that which hath been said, that the presentment is alleged to be in jure coronae, and the confessing the presentment is a plea by way of argument, to which he answered that the record is not so, but the seisin of the advowson is alleged by descent, to Elizabeth Queen, by force of which she was seized in jure coronae, and jones argued that the traverse is good, for every plea in bar ought either to be traversed, and denied, or confessed and avoided, and here that ought to be traversed Dyer 208. 312. in avowry for a rend charge, and seisin was alleged in the grantor, of the land in fee, and the Plaintiff said he was seized in tail, he ought to traverse that he was seized in fee, and a good traverse Hill. 2. jac. in C. B. Rot. 1921. Edward's against D. it was pleaded that such a man was seized in fee of a rend charge, and the other confessed that he was seized in fee, and that a long time before he enfeoffed one I. S. there he ought to traverse, that he was seized at the time of the grant: see the new book of Entryes Tavener and Gooches case, in a Qu. Impedit. And a note by the Lord Cook: also he said, that after the grant there may be an usurpation, and so the dying seized in the case of an advowson in gross aught to be traversed, ●e 21. E. 4. 1. 20. E. 4. 14. and as to that which hath been said, against the protestations; he answered it ought to be traversed, and for that the rest ought to be taken by protestation: and in some cases the conveyance is traversable; see Cromwel's and Andrews case. And so he concluded and prayed judgement for the Plaintiff  
Note that he said, that it was adjudged in that Court 2. jac. in the case of the Bishop of Winchester, that two usurpations gain the advowson from the King. And the reason was, because the King by an usurpation may gain an advowson, in him out of a Common person, and if the King Usurp, and the right patron present, he is remitted: Hobert by such usurpation, the possession is gained from the King, but not the right, and note that upon the argument in the principal case, by Bawtry and jones, it was ruled by Hobert, Warberton, and Hutton, that if the Defendant do not show better cause by such a day, judgement shall be given against him; and Hutton said, that he had studied the case, and found no doubt but that the traverse is good, Winch was absent in the Chancery.   

M. 19 jac. C. P.  
IT was moved for a prohibition by Harris Sergeant, to the Court of Audience, because that the Plaintiff was sued there for saying to one thou art a Common Quean, and a base Quean, and Harris said, that a prohibition had been granted in this Court, for saying to one that she was a piperly Queen, and it was the case of Man against Hucksler; and Finch said, though the words are not actionable in our Law, they are punishable in the spiritual Court, for the word Quean in their Law, implies as much as whore, but Hobert said, that this word Quean is not a word of any certain sense, and is to all intents, and purposes, and individuum Vagum, and so in certain; see more after.  
Note that it was said by Justice Warberton, that it was adjudged in the case of one Ablaine of Lincoln's Inn, that if a man made a lease for years rendering rend, and the lessee or a stranger promise upon good consideration to pay the rent; that in this case no action upon the case will lie, for it is a rent, and is a real thing; and Hutton Justice being only present agreed, this was upon the motion of Finch Serjeant, & Mic. 43. Eliz. in the King's Bench in an action upon the case, & he declared how he let certain land to the Defendant for years, in consideration of which the Defendant promised to pay him for the farm aforesaid, 20. l. and Hitcham moved that the action will not lie, because it appears to be for a rent, for which an action of debt lies, but by Gaudy, Fenner and Clench it is not a rent, but a sum in gross, and for that reason, because he promised to pay that in the consideration of a lease, clearly an action upon the case lies, but Sir John Walter replied, that a writ of error was brought of this case of Simcocks in the exchequer chamber, and the matter in law was assigned for error, and it was ruled that no action upon the case will lie, for Walmsley said this was a rent, for of necessity there ought to be supposed a commutation between the lessor and lessee, and that the lessor demanded of the lessee, how much he would give for that, and then he answered 20. l. this made an entire contract, and for that reason an action of debt lies, and not an action upon the case, and Savil and Kingsmil agreed to this.  
In evidence to the jury, in a replevin brought by I. S. against one Bennet, for the taking of beasts, and the Defendant made Conusance, and he said that Mr. Potts was seized of 6. acres of land, and granted a rend charge out of that to one William Pots his son in tail, and for rend behind he avowed, and the issue was, that the rent did not pass by the grant; and Hobert said, that in this case the avowant ought to prove that the grantor was seized of 6. acres, or more, and not of 4. or 5. acres, if he will maintain his issue in this case.  
Action upon the case for words he innuendo the Plaintiff stole the Tobacco out of his Mrs. shop. Finch moved the declaration was not good, because he had not averred that there was a communication concerning him before, and where the person is incertain there the innuendo is void, Hobert and Winch held that to be good, but then Hobert moved that the declaration was not good, because he said the Tobacco in his Mrs. shop, and had not averred that there was Tobacco there, to which also Winch agreed, but if he had said that he had stolen Tobacco out of his Mrs. shop; such declaration without any averment is good; but here the words (the) had altered the sense, and so there aught to be an averment; and Winch said, that if he had said, that he had stole 2 or 3 pound of Tobacco out of his Mrs. house, this had been good without any averment, for the certainty appears; and it was adjourned.    

Trin. 19 Jac.  

Sir George Stripping in Waste.  
Sir George Stripping brought an action of waste, and an estrepment was awarded to the Sheriff of Kent, to prohibit him to make waste, and the Sheriff returned the writ executed accordingly: and now there was an affidavit made to the Court, that since the estrepment he had cut down certain Willows, which grew upon the bank of the River, by which a bank fell down, and a meadow adjoining was overflowed, and upon this affidavit Davies moved for an attachment against the Defendant, for it appears by this affidavit that waste is committed, for the cutting of willows in this case is waste, because that they support the bank, as if they grew near a house: Hobert and Winch being only present, that this is a waste in law, but yet no attachment shall be awarded, because that this appears only by affidavit, and is only the collection of the party, and this doth not appear by pleading, or by the recor● of the Sheriff; and Brownlow said, that in this case he ought to have a Pond, which was granted.   

Mayor against two Bailiffs.  
ACtion of false imprisonment was brought by Major, against 2 Bailiffs of a corporation, who pleaded not guilty, and at the nisi prius the plaintiff was nonsuite; and now Sergeant Richardson moved upon the Statute of cap. 5. 7. jac. for double costs, and that upon the very words of the Statute, and the question was whether the costs ought to be taxed by this Court, or by the justices of Assize: Hobert said, that upon the nonsuite the justices of Assize might have commanded the jury to have taxed the single costs, and then the same judge might have doubled them, and that within the words of the Stat. but if the judge grants this, then upon his certificate the double costs shall be assessed, for otherwise the party shall be without any remedy, and Brownlow ch. Prothonotary agreed with that as to the certificate, that this Court shall assess the Costs, and Brownlow had a precedent according.    

Mich. 19 Jac.  

Grice against Lee.  
GRice against Lee in an action upon the case, and the Plaintiff declared that he being long time before, and still is seized in f●e of certain messages, and lands in Layton Buzzard in the County of Bedford, and that to these messages he had a common appendent time beyond memory etc. in 600 acres of waste called Layton Heath, and had common in 600 acres of wood in Layton aforesaid, and that the Defendant had made certain coney boroughs, and which the aforesaid couneys (where he had not made any mention of any conneys before) eat up the grass, and that the Defendant had enclosed the said wood, by which the Plaintiff had lost the profits, and the Defendant as to the digging of the heath for coneys, said, that E. 3. granted to the Dean and Cannons of Windsor, that they and their successors haberent in omnibus terris dominicalibus liberam Warrennam sibi tunc et successor. et in posterum conferendam. And that the 20. E. 4. the Duke of Suffolk and his wife granted to them the said Manor of Layton; whereof the said Heath is parcel, and said that 22. E. 4. it was enacted by Parliament, that all charters made by King E. 3. to the Dean and Canons of Windsor shall be good, and that the said Deane and Cannons of Windsor being so seized of the Manor of Layton, and of the Heath in the 3. H. 7. erected a free warren, and that by mean conveyance the said D. and C. conveyed that to the Defendant, and so justified the making of the said coney boroughs, by virtue of the charter of E. 3. and as to the 600. acres of wood he justified by the licence of the father of the Plaintiff, who then was seized of the common, and upon these pleas in bar the Plaintiff demurred; and Sergeant Richardson took exception; because that it is not expressy alleged that he was seized of the house and land, to which the common is appendent at the time of the making of the coney boroughs, for he only said that a long time before the erection of the coney boroughs, and yet he is seized, which immplies that he was seized, before and after, but not at the time of the warren made, and for this he cited the Book of entries where waste was brought, and he counted of a lease for life to the Defendant and a grant of the reversion, and an attornment of the Tenant, and that the Defendant had made waste, and ruled to be evil, because he had not alleged that this was after the attornement, and so in straddlings and Morgan's case; and he cited a judgement, 5. jac in C. B. Adkinson brought an action of trespass against I. S. and declared quod per multos Annos jam preteritos he had exercised merchandise, and that the Defendant such a day said of him that he was a Bankrupt; and it was adjudged that the declaration was evil, because he had not alleged that he exercised merchandise, at the time of the speaking of the words, and he said that the cause of the judgement was entered upon the roll, and the same case he could show to the Court: and Hobert desired to s●e that, for he doubted much of the law of the same case, to which Winch and Hutton agreed, and Richardson said, that as to that which may be said, that a fee simple shall always be supposed to have continuance if the contrary is not showed; to that he answered that is not so, for the book of the 7. H. 7. 8. if in bar of assize, the Tenant said that I. S. was seized and gave, this is not good because he had not showed quoth fit seisitus existens dedit etc. which being in a plea in bar, is more strong then in a declaration, to prove that a fee shall not be intended to have continuance without an express allegation: and so he concluded that the declaration is naught: but by Hobert, Winch, and Hutton, it is very good notwithstanding this objection, and Winch cited the 13. Eliz. in Ejectione firm, where the life of the person was not clearly alleged, but the declaration only was that the lessor was, and yet is seized, which was a sufficient averment of the life of the person, and so the declaration is good, and another exception was taken to the declaration by Hitcham Sergeant, because that the Plaintiff had declared that the Defendant had made coney boroughs, and with the aforesaid conneys had eat up the grass, where he had not alleged any storeing of the coney boroughs before with coneys, and then it is impossible they should eat up the grass to the prejudice of the Plaintiff, but to this it was answered by Sergeant Attoe, that though the declaration as to that is naught, yet the diging of the coney boroughs is to his prejudice, and sufficient to maintain the action, which the Court granted: and as to the matter in law Attoe argued for the Plaintiff, and recited the case to be that, E. 3. granted to the Dean and Chapter of Windsor, that they shall have free warren in the lands which yet they had not purchased, and of which they were not seized at the time, whether this is a good grant, and shall extend to take effect after the purchase; see Buckleys case: and be argued that it is not a good grant, and he put a difference between a warren, and other privileges which are flowers of the Crown, which may be granted infuturo: but a warren never was a flower of the Crown, and for that reason a grant de bonis et cattallis felon. et fugitivorum may be granted, and yet not be in esse at the time of the grant, for it is a flower of the Crown, and it is said 44. E. 3. 12. that the King may not grant a warren in other men's lands, but only in the land of the grantee, and upon this he concluded that this grant shall not extend to land after purchased, and the rather because it is in the nature of a licence which shall be taken strictly, see 21. H. 7. 1. 6.— And Hobert chief justice said, that this word demeans is derived of the French words en son manies, and though the Lord of the manor had the waste in his hands; yet he had not the common: and as to the confirmation by Ed. 4. they all agreed that this will confirm nothing to him but what was granted by E. 3. himself; and then as to the licence pleaded that is of no effect, for first the licence is pleaded to be made to one Sir Cham Haydon, and the Defendant did claim under him, and this licence was made by the father which will not bind the son who had the land, to which the common is appendent after the death of his father, for a common may not be extinguished without deed; and Hobert and all the Court agreed, that the licence of the father will not bind the son; and by the Court if nothing is showed to the contrary within a week, judgement shall be given for the Plaintiff.   

Davies against Turner.  
DAvies brought a replevin against Turner, and he declared of the taking in a place called the Holmes, and the Defendant made conusance as bailiff to Sir George Bing, for that one Clap held certain land of him by 20. s. rent and suit of Court, and for the rent he avowed, and alleged seisin by the hands of Clap, the Plaintiff said, that Chap held 40. acres of land by 9 s. rent, fealty, and suit of Court, absque hoc that he held modo et forma, and upon this it was demurred; and the single point was this, in avowry the Tenant alleged &c. and the question is whether he ought to traverse the tenure, or the seisin, and it was argued by Henden Sergeant, that he ought to traverse the seisin, and that the traverse of the tenure is not good, and besides here is double matter, for the conclusion sounds in bar of the avowry, and in abatement of the avowry: see a good case 18. H. 6. 6. for the falseness of the quantity of the land, and the falseness of the quantity of rent, the on goes in bar, the other in abatement of the avowry, 47. E. 3. 79. 5. H. 6. 4. and affirmed for good law.  
And as to the second point he held the seisin to be traversable, and not the tenure, and first he said there was a difference between pleading in bar of avowry, and in the abatement of the avowry, for in bar of the avowry there the seisin is is not traversable by Frowick 21. H. 7. 73. which opinion he held for good law: for it is agreed in Bucknels case, Co. 9 he may not say that he held of a stranger, absque hoc that the avowant was seized, but otherwise it is when that goes in abatement of the avowry.  
Secondly he said that the seisin is the principal thing, and the principal thing ought to be traversed, for if a man had seisin of many services, seisin shall never be aided till the Stat. of magna charta: see Bucknels case Cook 9 and here the seisin is the most meterial thing, and the most proper; see 37. H. 6. Bro.— Avowry 76. ne tiendra is no plea for a stranger to the avowry, but he ought to answer to the seisin.  
Thirdly the cause for which the seisin is traversable, see a notable case per Danby 7. E. 4. 29. for the beginning of the services may be time beyond memory etc. and for that reason may not be tried: see 20. E. 4. 17. 22. H. 6. 3. 26. H. 6. 25. by Newton he may traverse the tenure: Attoe contrary 13. H. 7. 25. to this it was answered, that the number roll may not be found: 5. H. 7. 4. 13. H. 6. 21. 21. H. 7. 22. by Frowick; and Kingsmil: Harvey to the contrary, the case was that the Defendant made conusance as Bailiff to Sir George Bing for this, that Chap held a message etc. by certain rent, and by suit of Court; and the other said, that he held 40. acres by 9 s. and suit of Court, absque hoc that he held the message, and the land modo et forma, and he argued that it was a good traverse of the tenure, and not double, which was granted by Hobert and by Winch being only present, and Hobert said, true it is that if the Lord had seisin of more than the very services, in this case it may not be avoided in avowry, and no fall tenure shall be avoided etc. but when he joins another falsity, and that is in the quantity of land, now the false quantity of the rent had made the tenure traversable, and the judgement was commanded to be entered accordingly.    

Trin. 19 Jac.  

Thomas Bull Executor etc. against Fankester.  
THomas Bull Executor of William Bull brought an action against Fankester; and declared that the Defendant enfeoffed his Testator in certain land, and that he covenanted for him and his heirs, that he was seized of a good estate in fee, and he alleged the breach, upon which they were at issue, and now Attoe moved in arrest of judgement, first because the Plaintiff sueing as Executor had not showed the Will, for it hath been adjudged here, that if a man bring an action as executor, and do not show the Will, that the Defendant may demur upon that, because it is matter of substance: but Hobert said it is very good; because the Defendant had admitted him to be responsible, but it is true he might have demurred upon the declaration, as we often times adjudged here; secondly Attoe said, that the covenant being made with the heir, the executor shall not have an action of covenant, for it is annexed to the land, which was granted by Hobert and Winch being only present in the Court.  
Note that it was said at the bar and agreed, by Hobert, that if the debtor make the dettee his executor, he may now retain in debt against him, and safely plead plene administravit, if he had no other goods, and shall not be driven to his special plea, and so it had been agreed often times in this Court.   

Parson, and Morlees case.  
PArson and Morlees case, it was said that the Lord Chancellor presented to a venefice, which belonged to the King, which was above the yearly value of 20. l. per annum, and this was referred to Hobert chief justice, and to Tanfield chief Baron, to certify whether this was merely void; it remained good till it was avoided.   

Harris against Wiseman.  
HArris had procured a prohibition against Wiseman, who had libelled in the spiritual Court against the Plaintiff for a frat in the Church, which did belong to his house, and it was said by Hobert and Winch only present, that a man, or a Lord of a manor, who had any Isle or a seat in the Church etc. and he is sued for that in the spiritual Court, he shall have a prohibition, but not every common parishioner for every common seat, and upon the first motion at the bar in this case, day was given over to the Defendant, to show cause wherefore that a prohibition shall not be granted: and the Defendant not having notice of that, after the day the Plaintiff had a prohibition, and now after the day he shown a good cause, and upon that a supersedeas was granted to stay the prohibition in that case.   

Aylesworth against Harrison.  
AYlesworth against Harrison in debt against an executor, the question was whether he may plead plene Administravit, and give in evidence a debt, in which the Testator was indebted to him, or whether he may plead the special matter, that plea amounting but to the general issue; and it was argued by Harris Sergeant, the Defendant may plead the special matter, and shall not be bound to the general issue, to leave that to the lay people who may suppose such a retainer to be an administration: and he vouched the 15. E. 4. 18. if a man illiterate seal a deed which is read to him in another manner, etc. and he delivers that as an escrow to be delivered over as his deed upon conditions performed: and this is delivered over before the conditions performed, he may in this case plead the special matter, and conclude so not his deed, or if he will he may plead the general issue, of non est factum: and so is 39 H. 6. in dower, the Tenant said that before marriage the husband enfeoffed him, and that after the Tenant let to him at Will, and that the husband continued possession during his life, absque hoc that he was seized of such an estate of which she might have dower: and exception was taken there, because that this only amounts to the general issue, and yet ruled to be good for the lay people may conceive such a continuance of possession during the life of the lessee, to be such an estate of which the wife may have dower if this were put upon the general issue; and in our case, because he had liberty to plead specially, or generally, he prayed that the Defendant may be admitted to plead specially, and that he may not be bound to the general issue: Sergeant Hendon to the contrary, if one plead a plea which amounts to the general issue, see Layfields case, Coo. 10. and though in woodward's case commentaries; there was such a plea pleaded, yet this doth not prove the contrary, for in the same case no exception was taken by the Plaintiff: and precedents do prove that the Defendants in this kind have been compelled to plead the general issue; Hobert, if no special matter may be alleged to the contrary, the Defendant shall be compelled to plead the general issue, and this is good discretion in the Court, to take away the perplexity of pleading, because one plea is as good as the other: to which Winch being only present agreed, and it was ordered that the Defendant here plead accordingly.  
In debt against the heir upon the obligation of his father, and in the declaration the Plaintiff omitted these words, obligo me et hered es meos etc. and after error brought, the Plaintiff prayed that this might be amended, because it was the misprision of the Clerk only: Hobert and Winch said, that this shall not be amended, for it is a matter of substance, but because the clerk who made this misprision was a good clerk, day was given over etc.   

Widow Archers case.  
IN debt against the Widow of Archer being executrix of her husband, and the Plaintiff declared that neither the Testator in his life, nor the executrix after his death had paid that, omitting those words licet saepius requisitus: etc. and evil, but this omission was amended.   

Sir Edward Grubham against Sir Edward Cook.  
SIr Edward Grubham brought an audita querela against Sir Edward Cook upon a recognizance of 4000 l. and this was acknowledged to the use of his Mother, and shown that the conusor had enfeoffed him, and another in the land, and that the conusee had sued execution only against him; and it was found for the Plaintiff, and it was so moved in arrest of judgement by Ashley Sergeant, first because he had not showed in this audita querela when the Statute was certified, nor yet the Teste, nor yet the return of the writ of extent: secondly the Plaintiff had not showed himself the party aggrieved, because he had not showed an ouster, and before an ouster no audita querela lies for the purchasor, but otherwise for the heir; as 17. assize 24. Hobert and Winch only present, the liberate is an ouster of itself.   

Empson against Bathrust.  
EMpson against Bathrust in an action of debt upon an obligation of 23. l. the condition was to pay 20. l. and the Defendant pleaded the Statute of the 23. of H. 6. cap. 10. that no Sheriff may take an obligation by colour of his office in other manner or form than is there prescribed by the Statute, and he shown that a Statute of 200. l. was acknowledged to him, the Defendant by I. S. and that this was extended by the Plaintiff being sheriff; and that it was agreed between one Charles Empson brother to the Plaintiff, and the under-sheriff before the liberate executed, that the Defendant should enter into the said bond to the use of the Plaintiff, the Plaintiff confessed this, and pleaded the Statute verbatim; where upon the Defendan demurred, and Hendon argued for the Defendant, and said there is 3 points in the case: first when the sheriff doth take an obligation with penalty for money which is given to him for his fees which are due by the Statute of the 29. of Eliz. whether this be good within the Statute: the second point is, when the Sheriff extends the Statute, and the conusee enters into bond for the payment of his fees after the extent, and before the liberate returned, whether this is good: and thirdly where the Statute gives 12. d. in the pound for the first 100 l. and if that exceed, then but 6. d. whether this shall be taken but only 6. d. in the pound for all, that exceeds a hundred pound, or whether he shall have 12. d. for the first 100 l. and 6. d. for the rest: and if any of these 3. points be against the Plaintiff, he shall not have judgement. And first Hendon argued that this bond with penalty is out of the Statute, of the 29. Eliz. for first in our case the bond is void, by the 23. H. 6. for it is taken to another, and not to the Sheriff, and besides the same Statute doth not extend to any obligation with penalty, and then it never was the intent of the 29. of Eliz. that any other should be taken, or after another manner, and the Statute of the 23. H. 6. was made only to prevent the extortion of the Sheriffs, and of their officers, as may appear by a particular recital of the Statute: and yet he agreed that by the equity of the same Statute, he shall have 4. d. for every warrant as appears by the new book of entries: and then he said, if the Sheriff take other fees, or in other manner it is extortion: and for that by 21. H. 7. if he takes an obligation, or covenant which tends to extortion, the law will meet with that, and he relied much upon Manninghams' case Com. 65. where it is said, the Sheriff may take a bond, with a great penalty for the appearance of the party, but not for his fees by the Stat. of 23. H. 6. for that Stat. as to fees is not repealed by the 29. Eliz. and so he concluded this bond with penalty for his fees was extortion, and void by 23. H. 6. which is not repealed by the 29. Eliz. and by consequence void, for that Statute was not made to punish them, but to prevent all extortion in them; and this Statute is penued strictly to prevent any thing which had but any colour of extortion, like to the Statute of the 13. of Eliz. cap. 8. against usury, if any evasion be made by any indirect dealing to avoid this, yet the Statute will meet with that, as appears in Claytons' case: and for that reason he concluded this bond with a penalty to be void.  
But admitting the bond to be good, the Sheriff had not taken that in due time, for before the liberate there is no complete execution, but otherwise in the case of a Statute Merchant, for there needs no liberate of itself: see the books of entries 59 the difference agreed, by which it is apparent that before the liberate there is no complete execution, and the words of the 29 of Eliz. are for the serving and the executing &c. so that before execution the Sheriff shall have nothing, for this word (for) implies a condition precedent, as an annuity pro consilio impenso; he ought to show that he had given counsel; and yet it is true that this Statute of the 29. Eliz. hath made a contract between the Sheriff, and the party that hath execution, and he may have his contract, for it is a contract in law, and so it was resolved, but he shall not have that before execution, as was holden, Pasch. 14. jac. Rot. 5. 39 B. R. Pierpoint against Bowley, that the Sheriff shall be bound to redeliver the fees to the party, if it be not fully executed, by which it is apparent, that before execution no fees are due to the Sheriff; and as to the third, he argued that the Sheriff shall have only 6. d. in the pound when that exceeds a hundred pound, for the intent of the Statute is to put that incertainty, and not to make fractions; but it will be objected the inconvenience that will ensue upon this construction, for then the Sheriff shall have as much for the executing of 100 l. as for 200. l. to this he answered that this may well be, for it is the words of the Statute: and for authority in that point he cited the case of Faucet and the Sheriff of Nottingham Pasch. 36. Eliz. Rot. 1301. where this very point came in question, indeed no judgement was given in the case, but the opinion of the Court was as he had argued: and so he prayed judgement for the Defendant; Bawtry Sergeant to the contrary, and he argued briefly as to the first point, that the obligation with penalty was taken for due fees, for it is a due debt, and then what reason is there that he shall not take an obligation for a due debt: and as to the second point he argued that the bond was well taken before execution, for the words of the Statute are that the Sheriff shall not take of any, either directly or indirectly, for that which he shall levy or extend in execution etc. and this word (for) implies a taking before or after 21. H. 7. saith that the prisoner shall be discharged paying his fees, and this payment ought to be before discharge, and the common law said that an ostler may retain a horse for his meat, in this case payment ought to be for his meat before the delivery of his horse: and Coo. 5. Gray case, there Popham said if a man had pot water by prescription paying 6. d. in this case he ought to pay before he hath the water, for otherwise the owner had not any remedy, and so here he doubted that when the Sheriff made execution whether he shall have any remedy or no: and therefore it is good conscience to allow him to take a bond for that before he make execution, for otherwise a great inconvenience may ensue, for perchance after the extent, and before the liberate, the parties may agree, and then the Sheriff shall not have any thing for all his pains which he had taken in the extent, which never was the intent of the Statute, but it may be objected that in this case the Sheriff may have an action upon the case against the debtee, or the conusee if he make such composition, I answer, yet this is a great hindrance, and trouble to the Sheriff to prosecute the suit, and it shall be very inconvenient to allow that the Sheriff shall be allowed no other remedy: and then for the third point he argued that the Sheriff shall have 12. d. in the pound for the first 100 l. where the bond exceed 100 l. and 6. d. for that which exceeds, for otherwise as the case is he shall have nothing at all for the first hundred pounds, for the words of the Statute are, if the same be above 100 l. then he shall have 6. d. so that 6. d. only shall be taken for that which is above 100 l. and nothing for the first hundred if this construction shall be made: and he also remembered the objection made by Hendon, and so concluded that judgement ought to be given for the Plaintiff: Hobert said clearly, the Sheriff may take a single bill for his fees, and that is the ordinary course, also he read the Statute of the 29. Eliz. that it shall be lawful to the Sheriff etc. and said the words of the Statute made a contract in law, for which an action of debt lies for the Sheriff, and he ●●id to Sergeant Bawtry that the second point will be found to be against him, and for the third point that the Sheriff shall have but 6. d. for all in the case the sum exceed 100 l. and so they thought judgement ought to be given for the Defendant; and justice Winch said that the reason wherefore the sum of 12. d. in the pound is given if that not exceed 100 l. is, because that it is as much labour to the Sheriff, to execute 100 l. as it is for 500 l.   

Maps and Maps against Sir Isaac Sidley.  
Maps and Maps brought an action upon the case against Sir Isaac Sidley upon a promise; and shown that one named Holdish was indebted to the Testator of the Plaintiffs in 12. d. upon a bond which became due, and that the Defendant in consideration that the Plaintiffs will forbear to prosecute a suit upon the same obligation, he promised to pay that; and the Plaintiffs shown that they had forborn him till such a day etc. and upon non assumpsit pleaded it was found for the Plaintiff, and now it was moved in arrest of judgement by Hitcham Sergeant of the King, that this declaration is not good, for this forbearance ought to be for ever, and not a temporary forbearance only, for the Defendant by his promise had made the debt his own, as if the assumpsit & promise had been to forbear to come to my house, this aught to be a perpetual forbearance; and here the assumpsion of the Defendant amounts to a release in law to the principal, and yet he agreed if this had been generally that he had forborn, and had not showed he had forborn ill such a day, the declaration had been good: Hobert, if the promise had been to forbear till such a day, there he may sue the dettee if he do not pay it the day, and it was adjourned.    

Mich. 19 Jac.  

Mabies' case.  
Mabies' case, Hobert in Parson Mabies case if I let my rectory excepting my glebe, the exception is void, for no rectory may be without glebe: and the same law of a manor excepting the demesnes, but he may except parcel of the glebe, and good, but in pleading the lease of a rectory this shall be taken for the whole rectory, and not for parcel.   

Gratwick against Gratwick.  
GRatwick brought a formedon in remainder against Gratwick, and the Tenant pleaded that the day of the purchase of the writ, and yet he the Plaintiff is seized of the moiety of the land in demand; and it was argued by Sergeant Harvey that this is no good plea, for he ought to show of what estate he was seized, and he may be seized by virtue of a Statute, and he vouched the 39 E. 3. 7. Hobert, if he had said that he was seized in his demeasne as of fee, or as of freehold, this had been good, and a seisin by force of a Statute is no seisin at all: and Hutton said, if Tenant plead entry in part pending the wri●, he ought to say that he entered, and expulsed the other, for otherwise it is not good: and I conceive that the Court inclined that in the principal case, that the plea for the cause aforesaid, being of a general seisin was not a good plea.   

Sir Edward Grubham against Sir Edward Cook.  
AT another day the case of Sir Edward Grubham and of Sir Edward Cook was moved again, and it was objected by Ashley, that the declaration in the audita querela is not good, because he had not showed the day of the Testee, and of the return of the writ, & execution in certainty, but only by process such a day out of the Chancery, which is not good, but he ought to plead all the record of the extent in special; and he offered to show a precedent of that: and secondly he had not showed the execution of the liberate by which the land was delivered, and so there is no express allegation of a grievance: Richardson the precedents in the old book of entries are according to our declaration: and Hutton vouched the 9 H. 6. and 39 H. 6 and in an action of debt upon a judgement, he needs not recite all the record, but he may begin at the judgement: and as to the second point they all agreed, that the party may have an audita querela before an ouster; and yet here the showing that it was delivered to the conuser by the liberate is a sufficient averment of the ouster, for it may not be delivered without an ouster; and ruled that the Plaintiff shall have judgement if the Defendant do not show other cause by such a day.  
Upon a Capias Vtlagatum the sheriff returned that the party which was arrested, had a protection from Lord Stafford, who was a Lord of the Parliamen: and it was moved by Sergeant Hitcham that the return was not good, for the protection of a Lord of the Parliament is not good in a Capias Utlagatum, which concerned the King; and by Winch justice only present in Court, the return is clearly naught: and day was given over to the Sheriff to amend his return: and this was granted by Hobert chief justice, at another day this Term,   

Peter Vanheath against Turner.  
PEter Vanheath brought an action against Turner, and declared upon the custom of Merchants, that if any Merchant over the sea deliver money to a factor, and make a bill of exchange under his seal, and this is subscribed by the Mr. or by any of the company of such Merchants, that the Merchant himself, or all the company, or any one in particular may be charged to pay that; and he shown that one Morgan was factor of the company of which the Defendant was one; and that the said Morgan did substitute one Greenway, to whom the Plaintiff delivered 100 l. upon a bill of exchange, to which bill one Bounder being one of the company set to his hand in England; and so the action accrued to the Plaintiff.  
The Defendant pleaded nihil debet per legem, and upon that the Plaintiff demurred in law; and the question was whether the Defendant may wage his law, and it was argued by Sergeant Harvey that he shall not wage his law, for this is only an action upon the case, and sounds only in nonfesance, and here is no privity between the Plaintiff and Defendant; for the bill was made over the sea, and subscribed here in England, and he shall not charge the Defendant without a special custom, so that it is plain that it is custom which made the Defendant liable, and if the Defendant do not pay for this no action of debt lies, but only an action upon the case: and every plea ought to conclude to the point in action: and for that in trover and conversion non culp. is a good plea: and yet he may traverse the finding, for this tends to the issue, and is good; and so in debt upon a lease for years, nihil debet is a good plea, or non dimisit, for the cause aforesaid, but when the plea doth not tend to the point in issue, it is otherwise, for he ought to traverse that which tends to the point in issue, and in our case the Defendant may traverse the custom, or give answer to the nonfesance, but he shall not wage his law; and an action lies upon this contract against the Mr. for this, and so he concluded that judgement ought to be given for the Plaintiff.  
Harris Sergeant contrary; this non payment is not a non fesance in the Defendant; and here the Defendant may not plead not guilty, or non assumpsit, for no promise was made, and it is a general rule in law, that where a man may traverse the conveyance, there he shall not wage his law: see 5. H. 7. but here the Defendant may not traverse the conveyance, Ergo he may wage his law, and 5. H. 7. the successor of an Abbot shall have his law of a contract made with his predecessor, and he said that the book of the 23. E. 3. is not law. Hobert chief justice if the Bailiff at the common law make a substitute, the substitute is not chargeable, but here the custom will bind the law. Secondly he laid 2. or 3. Merchant's trade over the sea who made a factor there, who takes money there, and gives a bill, and this is subscribed by one of the company, that this should bind all or any of the company is not a good custom, and the custom of Merchants is part of the common law of this Kingdom, of which the judges ought to take notice: and if any doubt arise to them about there custom, they may send for the Merchants to know there custom, as they may send for the civilians to know there law, and he thought that the Defendant ought to be admitted to wage his law, for the delivery of the money made a contract in law, and as he may have an action of debt, so without question he may have an action upon the case, and so count upon a promise, and then the Defendant may not wage his law.    

Mich. 19 Jac. C. P.  

Doctor Hunt against Allen.  
DOctor Hunt brought an action of debt upon an obligation of 100 l. against the heir of Edmond Allen, and the condition of the obligation was, that whereas the testator Edmond Allen, in the first year of the reign of the King, hath given and granted to the Plaintiff the presentation to the Church of D. if therefore the said Edmond Alllen, from time to time shall make good the said grant from all incumberances made, or to be made by him, and his heirs, that then etc. and the grantor died, and the Church became void: and the heir of the grantor presented, and whether this was a breach of the Condition, was the question; and Hobert chief justice and Winch being only present, thought this tortuous presentation to be no breach of the condition, but this extends only to lawful disturbance by the heir, and by the pleading here it appears, that though the heir presented, yet he had no right to present, because that his father had granted that before: and then the presentation of the heir is as a mere stranger. And those general words will not extend to a tortuous disturbance by the heir: but Hobert said, that the words shall have such a construction as if it had been said, that he shall enjoy the same, from any act or acts made by him, or his heirs: and in this case there ought to be a lawful eviction to make a breach of the condition: but otherwise if the condition had been that he shall peaceably enjoy from any act or acts made by him, or his heirs, in that case a tortuous disturbance would have been a breach of the condition, but it was adjourned till another time.  
Information was for that one such, his apprentice, departed out of his service, and the Defendant received and retained him without a testimonial from the Mr. contra formam Statuti. And so he demanded 5. l. the Defendant pleaded nihil debet per patriam, and it was found against him: and now Hendon Sergeant moved in arrest of judgement, that an apprentice is out of the clause of the Statute of the 5th. of Elizabeth; and that the same Statute extends only to servants, and to labourers retained within that Statute, for the statute saith, be it enacted that no person or persons that depart out of service without showing of a testimonial, as is above remembered, and this branch as is above remembered, had only reference to the next clause before, and the same branch before makes only mention of certain trades, in which an apprentice as in our case is not included: and the certificate set down within the Statute, proves that an apprentice is not within the Statute, for the words are I. W. servant to such a one etc. and so it extends to servants, and not to apprentices; and secondly, he said the information is not good, because he had not showed in what trade this apprentice served: and perchance he was retained in such a trade as is not within the Statute: and ●hirdly, he had not showed what time he was received, that so it might appear that he was an apprentice but for half a year: and such a retainer is not within the Statute, fourthly, the conclusion of the information is contrary to the form of the Statute; yet this doth not aid the imperfection of the information, for such information only extends to matter of circumstance, and not to matter of substance. Finch Sergeant contrary, that the retainer of an apprentice who departs out of the service of his Mr. without a testimonial, is within the Statute of the 5th. of Eliz. for the same branch is general, there being no person who departs etc. and an apprentice is a person which departs; secondly, the clause of the Statute is, be it enacted that none of the forementioned retained persons etc. and an apprentice is a person which is in a special manner named before, 
Mich. 19 Jac.  and therefore he is within the express words of the same branch. Thirdly, the form of the testimonial proves that, for it is I. W. servant to such etc. and an apprentice is such a servant. Hobert chief justice said, that it was never the intent of the Statute, to make an infant who is an apprentice, to be within the danger of the same Statute, for an infant at the age of 14. years may be bound to be an apprentice: and the punishment which is given by the same Statute is, that such person shall be whipped as a Rogue, which plainly proves the Statute, intends only those who are of full age: and if other construction shall be made, perchance that the son of a gentleman may be punished as a Rogue by such departure: and he held that if an apprentice depart with his Mrs. goods delivered to him, that in this case he is not within the Statute of the 21. H 8. as another servant is; and Sergeant Finch said, that there is an express exception, and if that had not been, that an apprentice had been within the danger of the law; but Hobert said, that he doubted much whether an apprentice had been within that Statute, though the Proviso had not been made, but this proves that the makers of the Statute, thought this to be a hard matter to make an infant who is apprentice to be within the danger of the same law: and for that reason the proviso of the Statute was made. Winch said to which Hutton agreed, that when the Defendant had pleaded nihil debet, and this was found for the Plaintiff; yet he may move in arrest of judgement, if the matter be not within the Statute adjurned.  
In a replevin the Defendant said, that he h●d property in the beasts absque hoc that the property was to the Plaintiff, and so prayed judgement of the writ: and it was found for the Plaintiff: and now Harvey Sergeant moved in arrest of judgement, for in no book is found such a traverse as this, that the Plaintiff had not property, but only that the property was to the Defendant: and secondly the conclusion of the plea is not good, for he ought to conclude to the writ and not to the action. Hobert 6. H. 7. is, that an action of detinue affirms the property at the time of the action, but a repleviant the time of the taking: and two men may have such property in the same thing, that every of them may have a replevin; and Hutton said that when the Defendant in the replevin claimed property, he ought to conclude to the action: and Hendon Sergeant being only at the bar, and not of council in the case said, that the book of entries is, that he shall traverse the property of the Plaintiff, as in the principal case. Hutton justice said, that this was never seen by him: but they all agreed that this being after verdict, judgement shall be given for the Plaintiff.   

Trehern against Claybrook Ent. Tr. 18. Jac. Rot. 650.  
TRehern against Claybrook in a debt upon a lease for years, the jury gave a special verdict to this effect, that john Trehern Grandfather of the Plaintiff was seized of land in fee, and let this for forty years rendering rend, for which the action is brought, and that he devised the reversion to the Plaintiff in catle, the remainder to Leonard Trehern in tail with divers remainders over, and with provises in the same will, that for the raising of a stock for the Plaintiff, and for him in remainder, his will was that one Griffith, and Anne his wife, being daughter of the devisor should have the profits, and rend of the said land to their own use, until the time that the Plaintiff and the said Leonard Trehern accomplish the age of 21. years, provided always, and upon this condition, that the said Griffith and his wife within 3 months of his decease, enter into bond to the overseers of his will in such a sum, and in such a penalty as shall be thought fit by the said overseers: and this bond to be made by their advice; and if the said Griffith and Anne his wife do refuse to be bound as is aforesaid, than the overseers shall have the rents, and the profits etc. and the jury found over that he made two executors and 3. who were overseers, and that the 3. October 16. jac. died, and that within 3. weeks after the death of the devisor, the executor read the will to the overseers, but they found that the overseers did not remember that; and if upon all the matter Griffith and Anne his wife had not performed the condition was the question: and that if not, the reversion was in the Plaintiff. And the point in law upon the verdict was whether Griffith and Anne his wife, aught of their perils to tender the bond within 3. months, or whether the overseers ought to make the first act, and to tender the bond and the penalty for them to seal; and Towse Sergeant argued that Anne and Griffith her husband ought to tender the bond at their peril, for he said, that the condition did precede the estate, and therefore if they will have the benefit of the devise, than he ought to tender the obligation; and vouched Corbets case, and 18. Eliz. the devise of land upon condition to pay money, he ought to pay that at his peril: Attoe Sergeant contrary, and yet he agreed, that if the condition was to precede the estate, than the law was as Towse had said, but here he said the estate precedes the condition, for all the profits are devised to Griffith and to Anne his wife during the minority of the Plaintiff, by which it is apparent the estate is presently in the devisees; and by consequence the estate precedes the condition; and then the sole doubt will be whether Griffith and Anne his wife ought to procure the overseers to make the obligation, and to limit the condition, or whether the overseers ought to make this first, they being the parties entrusted by the Will: see more after.  
Upon an elegit the Sheriff returned that to be executed, and the extent of the Church of St. Andrews Als. St. Edes, and Attoe prayed the Sheriff may amend this, and make that Andrews only, for that is the true name, Hobert and the Court, if this be the true name the alias dictus is surplusage, and will not hurt the return of the writ.    

Hill. 19 Jac. C. P.  

Allen against Brach Ent. Hill. 19 Jac.  
ALlen against Brach upon the reading of a record in a replevin, the case was, Tennat of a Copyhold for life, in which the custom was, that the wife shall have her widow's estate, and the husband was attaint of felony, and executed, and whether the wife in this case shall have the widow's estate, was the question upon the demurrer; Winch being only present seemed that not without a special custom.  
In an action upon the case, the Plaintiff shown that he was possessed of a Wind mill sufficiently repaired, and that he at the instance and request of the Defendant let that to I. S. and in consideration thereof, the Defendant promised to pay the rent, and that the Mill should be left in sufficient repair (except the Sails,) and he averred that he had let that to I. S. accordingly, and that he had not paid the rent, nor left that sufficiently repaired: and Sergeant Hendon said, that the declaration is not good, first, because that the Plaintiff had showed that he was possessed of a Wind Mill; and had not showed of what estate; and it may be this was only at will, and then the lease is void: Hutton justice, it is good, notwithstanding this exception, for the showing that he was possessed was surplusage, and if he had showed that he let for years, and never shown that he was possessed, yet this is good: and if the lessee never enter, yet the assumpsit ly●●; secondly Hendon moved that the promise was to pay the rent, and to leave the Mill sufficienty repaired except the sails, and the Plaintiff averred that he had not repaired, and never made mention of excepting the Sails; and here the jury found the Defendant guilty of all, and had given entire damages, and it appears by the Plaintiffs own showing that he shall no have any action at all for the sails, for they are excepted, and therefore though the promise is good for the rent, yet it is not for the not reparation, and the damages are entire; Winch and Hutton justices only present held this good after verdict; and judgement was given according.   

Wright against Black and Black.  
Wright against Black and Black in an action upon the case, and the Plaintiff declared that he was of good fame, and that the Defendants such a day and year at the Sessions of Norwich, preferred a Bill of indictment, containing that the Plaintiff feloniously stole two bundles of vetches, and also they maliciously incited one I. S. to give in evidence to the grand jury, that this was Billa vera: and upon not guilty pleaded it was found for the Plaintiff, and now it was moved in arrest of judgement by Sergeant Richardson, first because the Plaintiff had not averred in his declaration that the Bill was found, but only that he preferred a Bill of indictment against him containing such a thing; and this is not good, as 21. E. 4. 41. one pleaded a patent of exemption, and this was pleaded quod inter alia continetur, and ruled no express grant was pleaded, and so evil: and so Browning and Beestons' case, Com. 173. there a condition was pleaded, that in such an indenture it was contained, that if such a thing was not made, than the lease shall be void; and evil, because he had not expressly averred what the condition was: and so in our case, to say the Defendants preferred a Bill of indictment containing that the Plaintiff stole 2. bundles of Vetches, this is only in nature of a recital, and no direct affirmation that there was such an indictment; and this declaration doth not agree with the precedents, and therefore it is evil: secondly, admit this to be good, yet as this case is, the Plaintiff may not have an action upon the case, but an action of conspiracy against both. Thirdly, the declaration is not good, because it sets forth that the Defendants incited I. S. to give in evidence to the grand jury that this was Billa vera: and had not averred that he was sworn, and then though an action may lie for the other, yet because the action is brought for all; and damages are entire, all shall be void, and the Plaintiff shall not have judgement for any: and lastly he said the action itself in this case will not lie, because the indictment was not found, but only an evidence, and an acquital before the grand jury; and this is lawful being in an ordinary course of justice; and prayed that the Plaintiff may have judgement in the case.  
Attoe contrary. First the Plaintiff here may not have a writ of conspiracy, for the indictment was not found, but yet if we should admit that he may have a writ of conspiracy, yet he may as this case is have an action upon the case at his election, which was granted by Justice Winch as to this point: and yet he said that this action upon the case, is in the nature of a writ of conspiracy, and for that reason there ought to be some act made, or else an action of conspiracy will not lie upon a bare attempt; Attoe an action upon the case will lie upon this attempt, for by this the Plaintiff is defamed as much as if the Defendants had said, that he had stole 2. bundles of Vetches, and this is more than a defamation by word, and though the indictment was not found, yet an action upon the case lies, as 10. Jaco. B. R. Whorwoods' case, against S. and R. declared that the Defendant preferred a Bill of indictment, containing such a thing without any eo quod etc. and the Bill not found, and yet an action upon the case lies very well: upon this attempt without an express averment of an eo quod, because that the indictment was not found, but otherwise it is where the indictment is found, there it is not good containing such a thing as my brother Richardson had said, without an eo quod, and the same case of Whorwood was adjudged accordingly; and it was also affirmed in the exchequer chamber upon a writ of error brought there; and he also cited a case 14. jac. in B. R. Rot. 236. Demey against Ridg, where was a Bill of indictment for the stealing of a horse, and the Bill was not found, and yet adjudged that an action upon the case will lie for that: Richardson said, that the indictment is not found here, and therefore it was no slander, and so was adjudged in a case in the 44. of Eliz. in the King's Bench which was one Jeroms case, Justice Hutton said that it seemed to him that the action doth not lie, for for it is not averred that there was any felony committed, also justice Hutton held that in this case the declaration is not good, because it is not expressly alleged with an eo quod, that the Plaintiff stole the Vetches; but only an indictment preferred containing such a matter, and justice Winch said, that the framing of an indictment in a Court of record, is not any cause of an action, for it is a proceeding in an ordinary Course of justice; and for that reason ought not to be punished by an action upon the case, for that will deter and scare men from the just prosecutions in the ordinary way of justice: Hobert chief justice was of a contrary opinion: and yet he said that it is true that the ordinary Course of justice, ought not by any means to be hopped or hindered, and as that may not be obstructed, so neither may the good name of a man in any thing which concerns his life be taken away, and impeached without good cause, for Courts of justice were not erected to be stages, to take away the good name or fame of any man: and therefore by the common law, if two do maliciously conspire to judict a man without cause, though the indictment itself be good, and legally drawn, yet a writ of conspiracy lies against those which caused this indictment to be preferred; and it is as great a slander to prefer a Bill of indictment to the grand jury, and to give this in evidence to them, as it is to declare that in an ale house; and as to the declaration he held that to be good without any averment of an indictment indeed; and the indictment in writing, and the preferring that to the grand jury contains the scandal: and I am of opinion that an action upon the case lies well: see more after.    

Easter 20. Jac. C. P.  

Hill against Waldron. Easter 20. Jac. C. P.  
HIll against Waldron in an action of debt upon an obligation, the condition was that I. S. shall levy a fine to the obligee before such a day of such land, the Defendant pleaded that the obligee had not sued forth any writ of covenant, the replication was that before the obligation made I. S. had made of feoffment in fee of the same land to I. S. and that the feoffee continued in possession at the time of the making of the obligation: and upon this the Defendant demurred: and in this case two points were moved; first, when I am obliged that I. S. who is a stranger, shall levy a fine to the obligee, whether in this case the obligee is bound to sue a writ of covenant, and it was argued by Sergeant Harvy that not, yet he agreed that if the condition was, that the obligor shall levy a fine to the obligee, in this case the obligee ought to do the first act, viz. to sue a writ of covenant, as Palmer's case Cook 5. but otherwise when the fine is levied by a third person, for there the obligor had took all upon him 4. H. 7. 15. E. 4. if I am bound to marry the daughter of I. S. and she will not marry me, yet I have forfeited my obligation, and so here he ought to levy a fine at his peril, and at his own costs, or at the costs of the obligor. But admitting that the obligee ought to sue a writ of covenant, because it appears by the replication that before the obligation made, I. S. had made a feoffment over, and that the feoffee did continue possession at the time when the fine was to be levied; and therefore the obligee needs not to sue forth any writ of covenant, because he who is to levy the fine had disabled himself to perform that; and he urged Sir Anthony Manes case where Cook 5. the party needs not to tender a Surrender because that he who had the reversion had granted that over before the Surrender was to be made.  
Sergeant Hendon to the contrary, for he argued that the obligation is not forfeit, except the obligee sue a writ of covenant, and there is no difference between this case, and when the obligor himself was to levy a fine, for the obligor had not undertaken for the whole fine, but only that I. S. shall acknowledge a fine, and if the obligor shall be compelled at his peril to sue a writ of covenant, than you will construe the condition to extend to an unlawful act, for it shall be maintenance in him to sue forth a writ of covenant, & he vouched a case P. 4 jac. Rot. 1548. Burnell against Bowl: the condition of the obligation was, that I. S. shall acknowledge a judgement in this Court to I. D. and in debt upon this obligation the Defendant pleaded that the Plaintiff had not sued forth any orginal writ, and it was holden a good plea: and for the second point he held that the obligee ought to sue this writ of Covenant, though that I. S. had dismissed himself of the land, for the words are general that I. S. shall levy a fine, and this he ought to do, though no estate pass by the fine, for a fine upon release shall be a good performance of the Condition, but otherwise if it had been to make a feoffment in fee, for a man cannot make a feoffment except he be seized of the land at the time, as 31. E. 3. debt. 164. a man was obliged to present the obligee to such a Church, and the obligee took a wife by which he had disabled himself to be a person, yet the obligor ought to present him, for otherwise he shall forfeit his obligation, and so in this case Hobert and Hutton as to the first point held the bar to be good, and that the obligee ought to sue forth the writ of Covenant, for Hobert said he ought to do that, for it is no reason to compel the obligor who is a stranger to the estate which passeth by the fine to sue a writ of Covenant, and for that reason, if I am bound to compel you to come upon such land to take a feoffment, I am not bound that the other make a livery of seisin, but if the case was that I was obliged to you, that I. S. shall levy a fine to I. N. in such case the fine aught to be levied at my peril, though that I. N. will not sue a writ of Covenant; Hutton according, but Winch doubted of the case, and as to the second point Hutton and Hobert agreed that the obligee as this case is needs not to sue a writ of Covenant, because that I. S. had made a feoffment of the land before, and so had disabled himself at the time of the obligation, for now it is impossible to levy a good fine, for if he should enter into the land and put out the feoffee, this were not good within the condition; and Hutton said, it ought to be agreed that if I. S. had made a feoffment after the time of the making of the obligation, and so had disabled himself afterwards, and the obligor is bound that a fine shall be levied, this is to be understood of a good and a lawful fine, and not a fine in name only; and he put the case; that I let for years, and after Covenant to make a feoffment to I. S. this lease for years is a breach of the Condition, though at the time of the Covenant made the lease for years was made. justice Winch thought the contrary, for this disability is by the act of a stranger, and for that the obligor may not take any certain notice of that, and therefore if I am obliged to you, that I. S. shall enfeoff you of his Manor, and at the time I S. had made a feoffement of two or three acres of the same Manor, yet if he enfeoff you of that which he was seized at the time of the obligation, this is a good performance of the Condition, though that 2. or 3. acres were disjoined from that before, and so in this case the obligor being a stranger to the estate of I. S. if I. S. make such an estate as he had at the time of the obligation made, this is sufficient, upon which he concluded, that the Plaintiff shall not have judgement, but afterward judgement was commanded to be entered for the Plaintiff according to the opinion of Hobert and Hutton.   

Hoels' case.  
Hoels' case upon a special verdict, was to this effect, a man was seized of 2. acres of land in fee, and had 2. sons, and he devised both the acres to his wife for life, the remainder of one acre to his eldest son in fee, the remainder of the other acre to his youngest son in fee, upon this condition in manner and form following, if either of my sons die before my depts and legacies are paid, or before either of my sons enter into their part, that then the longest liver shall have both parts to him and to his heirs in fee, and the devisor died, and Hoel the Plaintiff being the eldest son in the life of his mother released all his interest and his demand in this to his younger brother, and the doubt was, whether this condition was gone by this release, and Attoe argued that it was gone, for Littleton saith, that every land may be charged one way, or other: see Anne Mayowes case, Release, Coo. 1. Albans case, power of revocation released: see more of this afterwards.    

Trin. 20. Jac. C. P.  

Whitgift against Sir Francis Barrington.  
IN Replevin the Defendant avowed as Baliff to Sir Francis Barrington, and that Whitgift the Plaintiff held certain land of Sir Francis Barrington, by escuage et quendam reditum, and that the said Sir Francis was seized by the hands of Whitgift his very Tenant, and for homage he avowed; and upon this the Plaintiff demurred; first, because he had avowed for homage, and had not showed how nor in what manner the homage is due, whether in respect that the tenancy come to him by descent, or by purchase, and for that this general allegation is naught, for by Hendon Sergeant all the precedents in such avowryes made mention of the title to the homage, as 4. E. 4. in avowry for homage, the tenure is showed, and a descent alleged, or a purchase of the land, and in no book or in any precedent that he ever yet saw, did he see such a general allegation in avowry for homage, but he agreeth the book of the 44. E. 3. 42. if the avowry is upon tenant by the courtesy, this general allegation is good, but otherwise of a tenant in fee simple; and for that he alleged the second E. 3. avowry in a replevin, the Bishop avowed for homage due by the Plaintiff, and exception was taken, because it was not showed in whose time the death of the ancestor was, whether in his own time, or the time of his predecessor, and ruled to be evil, for his avowry being his title he ought to show that in certain, and so in our case. Hobert this case doth not prove our case, for in our case prima fancy it is certain to all intents and purposes, and I cannot see how an avowry may be better made; and Finch at the bar vouched a precedent in the book of entries title horse de son fee: secondly, where such a avowry as in our case is made, and then Hendon moved that the avowry is not good, for he had showed the tenure by homage, and by escuage, and rent de quo quidem redditu, he was seized &c. and this is also repugnant; for when he said that he was seized of the rent by the hands of the Plaintiff, this is a seisin of the homage as Bevils' case is, and then by his own showing, because the seisin of the rent is a seisin of the homage, he shall not have the homage of the Plaintiff.  
Thirdly, admitting this point against him, and that the seisin of the rent is not seisin of the homage, yet the pleading is not good, for when he expressly alleged seisin of the rent in this manner de quo quidem redditu he was seized, this excluded the seisin of any other services, but only of the rent which is expressly alleged: and therefore in our case he ought to have alleged generally de quibus serviciis he was seized, and to leave this to the construction of the Law; and he vouched 13. H. 7. 31. Sergeant Harvy to the same intent, for though perchance no good reason may be given wherefore the pleading shall be such, and that the seisin of the homage ought to be expressed, yet because all the precedents are so, the course of pleading shall not be altered: and all the precedents show a seisin of the homage; see the book of entries 597. and 598.  
Sergeant ●owse to the contrary, the book of the 19 E. 2. Recovery 224. is, that the alleging of the seisin or escuage, as in our case of tent, is a sufficient avowry for homage; and 29. H. 3. such an allegation of the seisin of rent was made in avowry for fealty, and good. Hutton, if the book of the 19 E. 12. be as Towse had alleged, it is all one with our case, Hobert seems the avoury is good, notwithstanding this last exception, for perchance he was not actually seized of the homage by the hands of the Tenant himself, and then by his own, showing his avowry shall abate, and he demanded of Brownlow, if there were any such precedent of an avowry, who answered no. Hobert, if the continual pleading be as my brother Harvy had alleged, we will not alter the course of pleading, but in my opinion, in reason none may plead in better manner or form, and Hutton being only present agreed, and then Hobert commanded the precedents to be searched concerning that matter, and Finch at the bar being of Council with the avowant said, that till the resolution in Bevils' case, it was a great question whether the seisin of the rent was the seisin of the homage, and therefore perchance it will be hard to find my ancient precedent: they adjourned, and at another day Hutton and Winch being only present, judgement was given for the avowant against Whitgift, and Hutton said, that he had spoke with the other justices, and they agreed.  
Upon a motion made by Towse, the case was this, a man made a lease for one year, and so from year to year during the Will of the lessor, and lessee, rendering rend, and the lessee died, and the rent was behind, and by Winch being only present, if the rent is behind in the time of the lessee and he dies, an action of debt is maintainable against his Executor in the detin●t only; and so I conceive, if that was behind after his death, he may have an action in the debt and the detinet, or in the detinet only; to which Brownlow agreed; Secondly Winch said, that when a man made a lease for a year, and so from year to year at the pleasure of the parties, that this is a lease for 3. years, and not for two. Thirdly, he doubted if the lessee hold over his term so that he is tenant at sufferance, what remedy the lessor had for his rent.  
Upon the reading of a record the case was, that a Scire facias issued against the land, Tenant to have execution of a judgement given against Ferdinando Earl of Derby in the 15. Eliz. and the Defendant pleaded, that a long time before the said Ferdinando any thing had in the land, one Edward Earl of Derby was seized of the land, and being so seized 3. Mar. enfeoffed I. S. to the use of the Lord Strange and his wife in tail, the remainder over to the said Ferdinando, and made the said Ferdinando heir to the estate ta●le, and pretended that by this means the land should not be liable to this judgement, because it was entailed to Ferdinando; and of such estate he died seized; the Plaintiff traversed the feoffment made by Edw. Earl of Derby, and the jury found that the feoffment was made by Edward Earl of Derby to the same persons as the Defendant had pleaded, but this was to the use of the feoffor for life, the remainder over to the Lord Strange and his wife, the remainder as before; and whether this shall be intended the same Feoffment which the Defendant had pleaded was the question, because the estate for life was omitted; and upon the special verdict that was the question, and Attoe said, that if the jury had found this feoffment made to other feoffees, though the estate had agreed this should be found against the Defendant; and Winch justice said, that there was such estate found as had taken away the execution or extent, and the estate for life is not material; but it was adjourned till another day.  
A man Covenanted to make such assurance as shall be devised by the counsel of the Plaintiff, so the same assurance be made within the county of Norff. or the City of Norwich, and the Plaintiff assigned the breach, and shown that in this case his Council devised, that a fine should be levied of the same land which was not done; and it was moved by Sergeant Attoe, that in this case the breach was not well laid, because he had not showed where his council devised that the fine should be levied.  
In the case of a prohibition, in case of a libel in the Ecclesiastical Court for the tithes of Cattles, the Plaintiff alleged that those Cattle, of which Tithes were demanded, are for his Dairy, and for the plough; and Winch being only present said, that the parson shall not have Tithes of such Cattle, but if he bred up Cattle to sell, it is otherwise; secondly, the Plaintiff in the prohibition alleged that time beyond memory the parishioners had paid a half penny for the Tithe of a Calf, and a penny for a Cow; and that upon a day limited they use to bring this to the Church, and to pay this to the Vicar, and now the Vicar had libelled in the spiritual Court, against them to compel them to bring it home to his house; and Winch said that this is no occasion of a prohibition, for they agree in the modus, but vary in the place of payment, and this is not matter of substance, and for that reason no prohibition will lie.  
Upon the reading of a record the case was, that the father made a feoffment to the use of himself for life, the remainder to his son and his wife, and to the heirs of the body of the son, and this was for a jointure for his wife, and the father died, and the son also died, and whether this was a good jointure was the question, for all this matter was pleaded in bar of dower brought by the wife, and it was ruled to be no good jointure for the feme, notwithstanding that the father died in the life of his son, and Hutton said, if a man made a feoffment to the use of himself for life, the remainder to his Executors for years, the remainder to his wife for a jointure, this will be no good jointure within the Statute of jointures, though the feme here had the immediate franktenement.  
In an action of debt, against an Administrator who pleads outlawry in the Testator; and it was moved that this was no plea, for he had taken the Administration upon him. Winch, a man who is outlawed may not make an executor, for if he meet with his goods, he shall answer for them to the King; and for that reason it seems to be a good plea, 3. H. 6. 32. and Brownlow chief Prothonotary, said that he could show a precedent 27. Eliz. where this is adjudged to be no plea, and justice Winch said to him, show that precedent if any such be; and upon Tuesday after he shown that, and then Winch agreed.   

Auditor Curl for words.  
AUditor Curl brought an action upon the case, and in his declaration he set forth the Statute of 32. H. 8. for the erection of the Court of Wards, and that the same Statute appointed the Auditor of the same Court, and shown that the Plaintiff was an Auditor of the same Court: and that the Defendant such a day, and at such a place, said of him you have taken money for engrossing of feodaries innuendo accounts, and tunc et ibidem you are a Cozner and live by Cozening, and I will prove that to be Cozenage; and upon not guilty pleaded, it was found for the Plaintiff, and now it was moved in arrest of judgement by Finch Sergeant of the King, that the Plaintiff shall not have judgement upon this verdict, for the first words are not actionable, for the taking of money for the engrossing of feodaries are insensible, and then the invendo will not help nor aid that, also the words in the second place are not actionable, because he had not said that he was a Cozening officer, and so he had not expressly applied that to his office, and the words are found generally, but yet admitting that the last words are actionable, yet the Plaintiff shall not have judgement, for the damages are entirely given, and for that reason void; see more and Beadles case cited in Osborns case, Cook 10.  
Harris Sergeant to the contrary, for an Auditor is an officer of trust, and he took an oath when he entered into his office, and his receiving fees which are not due, are also extortion; and the words of Cousinage shall have also relation to the office, as in Barkleys' case, you are a corrupt man, an action lies, and Haywel and Stakleys' case, of a justice of the peace, and Sir Miles Fleetwoods' case, he being receiver of the Court of wards, one called him Mr. deceiver and ruled, action lies, and tunc et ibidem shall have relation to the same time, in which the said words were spoken; and so he prayed judgement for the Plaintiff: and it was adjourned till another time. See after.   

Good against Bawtry.  
GOod brought an Ejectione firm against Bawtry, for ejecting him of certain lands in Creeting St. Maries, in Creeting St. Olaves, and in Creeting omnium sanctorum, and a Venire facias issued, to try the issue, to Summon 12. men de vicineto de Creeting St. Marry, Creeting St. Olaves, and Creeting omnium omitting Sanctorum; and it was now moved in arrest of judgement, by Attoe Sergeant, that the Venire facias was not good, for it ought to be of all the Creetings, and the Court blamed the Clerk very much for his negligence, but it was adjourned till another time.  
A man let an advowson for 40. years, and the lessee covenanted that he would not alien without the assent of the lessor, and he shown all the matter, because he had aliened to I. S. without his assent, and the Defendant pleaded, that he had not aliened without his assent, and upon that they were at issue, and it was found for the Plaintiff, and now it was moved in arrest of judgement, because he had not laid, that the alienation was by deed, for an advowson may not pass without deed, and Hobert said, if a man will declare in an ejectione firm of a lease made by the husband and the wife without deed, this is not the lease of the wife without deed, or yet if the Defendant will plead, not guilty, or non dimisit, and this is found for the Plaintiff, the Plaintiff shall have judgement, for this shall be intended to be by deed, which was granted by Winch justice being only present, that the breach was well laid, and he alleged a precedent 43. Eliz. a man avowed, and had not showed that this was by deed; and the Defendant pleaded non concessit, and found for the avowant, and he had judgement, but Hobert denied this case, but afterwards in the principal case, it was adjudged that the breach was well laid, and the Plaintiff had judgement.  
In a formedon in reverter the Tenant was essoyned, and the vouchees also appeared, the case was essoyned, and he had day over till octabis Michaelis. And then the Attorney of the Defendant would have been essoyned, and it was argued by Hendon Sergeant, that he shall not be essoyned, and yet he agreed if the vouchee had not appeared, the Tenant might have been essoyned again, 13. E. 3 essoyne the 8. and the same Law of the vouchees be returned tarde, but if the vouchee appear, and is essoyned, there the Tenant shall not be essoyned again, and so is the express ●ook of the 3. H. 7. 17. 9 E. 3. 39 and the reason is, because by the appearance of the vouchees the Tenant is out of the Court etc. and it was adjourned till another day: and at that day it was resolved by the Court, that the Attorney shall be esso●ned, and this was upon the view of a like judgement, in the case of the Earl of Clanrickard; and Hobert said, that in that case the Roll of the 3. H. 7. was searched for, and could not be found; and Towse urged 22. H. 6. and 13. E. 3. essoyne 8.   

Sir Henry L. Warden of the Fleet.  
RIchardson Serjeant moved for the warden of the Fleet Sir Henry L. and his motion was that whereas one I S. was in execution, in the Custody of the Warden of the Fleet, for 300. l. and he made an escape, and he at whose suit he was in execution, brought an action upon this escape against the Warden of the Fleet, and he shown that the Warden upon fresh suit had taken him again, and he prayed that the Plaintiff may not proceed in his action, for though the Warden of the Fleet may plead this, though the action was brought before the retaking of the party, yet he prayed for the saving of charges, that the action may be stayed, and he said, that there was such a case in this Court, against Harris deputy Warden to Sir Henry. L. upon such an escape, and he pleaded to the issue; and after he retook the prisoner: and in this case the Court had also relieved Harris if the issue had not been joined, but Hobert, let the Plaintiff be brought here present in Court, and then we will speak to that point.   

Gell against White.  
Gell against White and others, and he declared in action of Trespass, but the writ was general, but the declaration was quare vi et armis bona et catalla sua ceperunt, et asportaverunt viz. tertiam partem unius dishei plumbei, Anglice, the third part of a dish of lead Over: and it was moved that the Plaintiff shall not have judgement for the variance between the writ, and the declaration; and though it is objected, that here is nor any original writ at all, for in verity there was not any, yet the declaration is contrary to itself; for if in a replevin the Plaintiffs writ is, de bonis et Catallis; and his declaration is of a taking of a horse, this is not good, and so here bona viz. tertiam partem etc. for this particular thing may not be said to be goods and Chattels: and Harris Sergeant moved, that the Attorney might be banished the Court, for declaring without a writ according to the express book, 20. H. 6. Hobert, good reason; adjourned till another time.   

Anne Buckley against Simonds Mich. 18. Jac. Rot. 2120.  
ENtered Mich. 18. Jac. Rot. 2120. Anne Buckley was Plaintiff in a Quare Imp. against Simonds, and the case in effect was, that Andrew Buckley, Grandfather of the husband of the Plaintiff, did Covenant by indenture with Preston, that before such a day his Son should marry the daughter of Preston. And Covenanted to convey 6. l. 13. s. per Annum of rent issuing out of land, to hold to them during the life of the Covenanted and his wife, and after this he Covenanted for him, his hetres, and assigns, that after the death of the Covenantor, and his wife the land to which the advowson in question is appendent shall remain, come, and be unto the said son and his wife, and upon a demurrer the question was, whether this Covenant did raise a present use to the Son, and to his wife, or whether this only rests in Covenant, and Harris Sergeant argued, that no present use will arise by this Covenant, for first, all other Covenants in the indenture are in the future, for the words are, that the lands shall remain and come etc. and therefore till the death of the Covenantor the fee simple is in him, and no use will arise, for it shall be in the election of the Covenantor, what estate he will make to his Son, for he himself shall interpret his intent, and the difference in our books is, when the words are in the present tense, and when in the future, and for this he cited 22. H. 7. by justice Reed, if a man Covenant that land shall descend, remain, or revert, he said this did not give any present interest, because the worse are in the future, and it is in the election of the Covenantor, how, and in what manner the land shall pass; and there he put the case, that if I give my horse, or my Cow to I. S. there the Donee had election to take at his pleasure the one or the other, because the words are in the present tense, but if the words are, that I will give a horse, or a Cow, there the Donor had election which he shall have, because the words are in the future: the Lord Borroughs Covenanted 34. H. 8. Dyer 55. with another in frank marriage with his son, that immediately after his death, his son shall enjoy the use of his land of inheritance, according to the course as then they stood; and the question was, whether the see simple was presently out of the Covenantor; and the opinion was that it was not, because it was but a Covenant, and did not change the fee simple, and so is Dyer 96. Sir Thomas Seymor promised, and Covenanted by indenture in consideration, that the Covenantee had granted land to him, that he would levy a fine to Wimbish and Pennoy of other lands, which fine should be to Sir Thomas Seymor for life, the remainder to the Covenantee in tail, and no fine was levied, and the question was, whether any use was raised by this Covenant to the Covenantee, and the opinion of the book is, that not, because it is in the future, and he cited the 20. H. 7. 10. the Duke of Buckingham in consideration, that the Lord Henry his brother was to marry the Lady Wiltshire, he Covenanted with Bray, and with others, that the Manors of D. and of S. shall be to the Lady and to her heirs of her body begotten by the said Lord, and after the Duke granted to the Lord Henry and his wife for their lives: and it was argued whether this second grant is good or no, for if it is, than the first Covenant will not work to raise an use to the feme, and the book left that as a quere; and if it be, than he argued that in the principal case no present use is raised, but that this rests merely in Covenant, and so he prayed judgement for the Plaintiff.  
Sergeant Hendon to the contrary, for he thought this will raise a present use, and that this was the intent of the parties, that this should raise a present use, for the intent was to advance them first, during their lives with the rent, and after the death of the Covenantor and his wife with the land itself, and therefore of necessity this will raise a present use, for a bare action of Covenant may not be any advancement at all; and the rather here, because they who take benefit of this are strangers to the Covenant, and not Preston himself, for as it appears by 3. H. 7. a stranger shall not take benefit by a Covenant; and therefore he said the intentions of the parties was to raise an use, for otherwise there shall be no advancement at all.  
And further the words in the indenture are Covenant and grant, and if no use is raised, than this word grant is idle, and every word shall be so expounded that they may take effect, and the word Covenant is insufficient of itself to pass an estate in land, or to have any estate in signification other then to a mere Covenant, and to be obligatory: as is put Co. 2. Cromwel's case, Tirrels case, there vouched, a lease for years provided, and it is Covenanted, and agreed, there the Covenant is a condition, and also a Covenant, and 8. Ass. 1. 12. it is agreed, that if I Covenant that an other shall have my land for 7. years, this a good lease of the land itself, and it was adjudged here Tr. 2. Jac. Rot. 1696. accordingly; and in our case this word Covenant and grant, is also sufficient to raise an use, and to give an interest in the land itself: and yet he agreed that if there was an other act to be made by the Covenantor or the Covenantee, that then no use will arise, but it shall rest only in Covenant, Dyer 162. there are Covenants between the Lady Vere and Sir Anthony Wingfield her son, that the said Lady would convey to her son by a recovery; and that after 6. months the said Sir Anthony shall make an estate to his Mother for life, and there it is doubted whether the use is changed within the 6. months, and it was holden that it was not, 
Mich. 20. Jac. C.P.  for than it is impossible that the Covenants should be performed, and in that case it is in the power of the Covenantor, to make an act that the Covenants shall not be performed, and therefore Covenants will not raise an use; but in our case no act of the Covenantor may hinder that this use shall arise, and therefore good, and for that the difference is, Dyer 296. which is entered 11. Eliz. the Roll of which I have seen, the father upon the marriage of his son, promised to the friends of his wife, that after his death his son shall have his land, to him and his heirs, and the book is ruled that this did not change the use, and the reason was, this Covenant was by words, and not in writing, but it was not doubted, if this Covenant had been by writing, but that the Covenant will raise an use, which is all one with our case, and so was Callard and Callards' case 37. Eliz. stand forth Eustace, reserving to my wife and myself, I give to thee and thy heirs, and there it was doubted, whether any use will arise to the son, and ruled that not, because this was by words only, but it was also agreed, that if these words had been by writing, they had been sufficient to raise an use to the son, and he cited Dyer 232. before the Statute of the 27. H. 8. A Covenanted and agreed with B. that upon the marriage of his son, with the daughter of the other, that he would retain his land for life, and that after his death it shall remain to his son and his wife in fee, and the book is that this Covenant will raise an use, also if this Covenant and agreement will not amount to raise an use, than it is not to any use or purpose at all, and by consequence the consideration of the marriage is void also, and an action of Covenant will very well lie, without any such consideration of marriage; and so he concluded, and prayed judgement for the Defendant, adjourned.    

Mich. 20. Jac. C. P.  

Johnson against Norway.  
IOhnson brought an action of Trespass against Norway of Trespass made in a piece of ground, and the Defendant pleaded, that 14. H. 7. Roger Le Strange and Anne his wife, were seized of the Manor of D. and one Giles Sherington Abbot of C. was seized of an acre of land in fee, and held this of the said Roger Le-Strange as of the Manor of D. aforesaid, and that the 22. H. 7. the Abbot, and all the Monks died, by which the said land escheated to Roger etc. and the Manor descended to his son and heir after his death; who conveyed the Manor of which the acre is parcel after the escheat by mean conveyance to Hobert in fee, and that Hobert 12. Eliz. enfeoffed one Wright of the Manor, of which the said acre is parcel, and so justified by a conveyance from Wright to the Defendant: the Plaintiff replied by protestation that the Abbot was not eligible, and for plea he said, that the aforesaid Hobert 10. Eliz. enfeoffed I. S. of the said acre of land absque hoc that he enfeoffed Wright of the sad Manor of which the said acre is parcel; and upon this the Defendant demurred generally. And Sergeant Attoe argued for the Plaintiff, that the Plea of the Defendant is evil, and then though the replication of the Plaintiff is not good, yet the Plaintiff shall have judgement, and he cited Turner's case; Hobert it is true, 
Cook 8.  if the replication be merely void, than it is as you had said, but if the replication be the title of the Plaintiff, and that be insufficient, there the Plaintiff shall not have judgement, though the plea in bar was evil. Attoe agreed, that if it appear by the Plaintiffs own showing, that he had no cause of action, and that he had no title, he shall not have judgement, but here he had made a good title by the lease of the said acre of land, and though our traverse is evil, and sounds in doubleness, yet the Defendant had demurred generally, and so he had lost the advantage of the doubleness, or of the negative pregnant, for if a ma● plead double matter, this is only matter of form, and not of substance, and therefore after verdict it is good as hath been adjudged: but he proceeded in his argument, and he said that the bar of the Defendant is not good, for by his own showing this acre of land is not parcel of the Manor, for by the dissolution of the Monastery by the death of all the Monks, the land shall go to the founders and donors, and not to escheat to the Lord of which that is holden, as appears 2. H. 6. 7. and 5. H. 7. if an annuity or rent be granted to an Abbot in fee, and the Abbot and all his Monks do die, the annuity or the rent is extinct, and shall not escheat: see the Dean of Norwiches' case Coo. 3. agreed, that by the death of the Abbot and his Covent the corporation is dissolved, and then the possession shall go to the founders, and shall not escheat to the Lord of the Manor of which the Land was holden, and he said that this point is proved clearly by the Statute, of the 27. H. 8. and 31. H. 8. of Monasteries, in which Statutes there is an express saving to all persons, except to the donors and to their heirs; and no mention is made of the saving of the right of those of whom the land was holden; and that proves clearly, that if the makers of the Statute had thought that the land had escheated to the Lords, they would have excepted them in the saving of the act, as they had excepted the Donors and Founders, for if otherwise the lands, and possessions shall escheat to the Lords of which the land was holden, they are within the saving of the Statute: and then it will follow that after the death of all the Monks, as at this day, that the Lords shall have the land by escheat, which the Sages of the Law never dreamt of who made that Statute, that any thing may accrue to the Lord, and therefore they provided only for the title of the Donors and Founders, which is an argument that they thought, that upon the dissolution of the Monasteries, that the lands shall go to the Founders, and the same he thought concerning a corporation at this day, as of Suttons' Hospital etc. and so he concluded that, because in the bar of the Defendant he claimed to hold from the Lord, to whom he supposed the land to escheat, and did not claim etc. by his own showing the bar is not good: and though our replication, and traverse is not good, yet the Plaintiff shall have judgement.  
But admitting that the bar is good, yet the replication and traverse is good, and then judgement shall be given for the Plaintiff: and the case is, the Defendant pleaded a feoffment of the Man. 12. Eliz. to Wright after that he had showed the escheat of an acre, the Plaintiff replied that the 10th. Eliz. the Feofor enfeoffed C. of the acre of land, absque hoc that he was enfeoffed of the Manor of which the acre is parcel, and Attoe argued, that the traverse is good, and he alleged 38. H. 6. 49. the same traverse, and here when the Defendant had pleaded that the acre escheated, and had alleged a Feoffment of the Manor, and had not expressly alleged a Feoffment of the acre, the Plaintiff may traverse that which is not expressly alleged, because this destroys the very title of the Defendant; and he cited for that 34. H. 6. 15. a writ of privilege in trespass, as a Servant to an auditor of the exchequer, the Plaintiff replied that he was servant to him in husbandry, absque hoc that he was his servant to wait and attend upon him in his office, and it was holden a good traverse, and yet that was not expressly alleged by the Defendant.  
Hobert chief justice said, that the traverse is not good, for by the Feoffment which was made the 12th. Eliz. he had confessed and avoided the Feoffment which was made 10th. Eliz. and so there needed no traverse, and therefore he said, the great doubt of the case will be upon the bar of the Defendant, whether by the death of the Abbot and the Monks, the land escheat to the Lords of whom that was holden, or whether that shall go to the Donors, and to the Founders, and he thought that the land shall escheat, to which Winch seemed to agree; and Hobert said, that the writ of contra formam donationis was given to the Founder or Donor by the Statute, and not by the Common Law; but in the principal case, the judges said they would advise of that, and gave day over to argue that again.   

Auditor Curls case before.  
ANd now at this day the case of Auditor Curl was moved again in arrest of judgement, by Hendon, and he said Auditor Curl brought an action upon the case against Tuck, and he shown in his declaration the erection of the Court of Wards, by the Statute of 32. H. 8. and that it was ordained by the same Statute, that those persons which shall be ordained Auditors of the same Court, shall be sworn and take an oath, and that such a time the Plaintiff was sworn an Auditor, and that to the office was 2. s. due to be paid for the engrossing of Feodaries, and that the said Plaintiff exercised the said office honestly, and justly, and with the fees and the profits of the same he maintained his family, and that the Defendant such a day, and at such a place having Communication with the Plaintiff concerning his behaviour in his office, said to him, you have received money for the engrossing of Feodaries, and I will prove that to be Cozenage, and tunc et ibidem said you are a Cozener, and live by Cozening; and Hendon after verdict, for the Plaintiff moved in arrest of judgement, first, he said the office appertains to 2. Auditors, as appears by the Statute of 32. H. 8. and by Auditor Curls case, and if that appertain to 2. then this doth not appertain to the Plaintiff alone, and secondly, the Plaintiff had expressly laid in his declaration what fees are due to the office for the engrossing of Feodaries, and then when it appears by his own showing that the fees were due, and that the Defendant said of him, that he took money for the engrossing of Feodaries, this may not be any scandal to him, and he cited Suaggs case, Coo. 4. where the Plaintiff shown that his wife was living, and that the Defendant said of him, that he had killed his wife, here in this wise no action lies, for it appears by his own showing, that the wife was alive, and so no scandal, and so in our case, when he had showed that such fees were due for the engrossing of Feodaries, it was no scandal to him, for the Defendant to say, that he took money for the engrossing of them, and thereby the words are general of Cozenage, and they may have other interpretation as the Cozening at the Cock pits, or the like, and then those general words shall not be applied to his office, and not left to such an exposition as is equivocal, and he vouched Sergeant Heals case, Mr. Heals Warrants have undone many a man, and adjudged that an actition lies, because it had relation to his profession, but he said that this was afterwards reversed in the Exchequer chamber, because the word Warrants is general, and may be applied to other things: but Winch interrupted him, and said that it was not reversed for error, & then Hendon alleged Yardleyes case 11. Jac. in C. B. where one said to another, is Yardly your Attorney, your Attorney is a briving knave, and took 20. l. of you to Cousin me, and the opinion was, that an action will not lie, and Winch interrupted him again, and said it was adjudged the contrary, and after Hendon alleged eliot's case against Brown Hill. 17. Jac. B. R. thou hast made false writings between I. S. and his brother, and adjudged that an action lies, and he cited Mallard against Wise for these words, 10. Jac. Mallard is a knave, and forged my husband's Will against his mind, and ruled that no action lies, and so 13. Jac. Harvey against Boking, and he applied all those cases, that the words ought to scandalise him in his office and profession, for if words by any intendment may have relation to any thing else, they shall not be interpreted to have relation to his office, and therefore here the words are too general, also he shown that when the Plaintiff had said, that the Defendant such a day having communication concerning him in his office, said you have received money for the engrossing of Feodaries which is Cozenage, and tunc et ibidem said you are a Cozner, and live by Cozening, these words tunc et ibidem shall not have relation to all: but only to the last words, and cited 5. H. 7. 8. to that purpose: and so he concluded against the Plaintiff.  
Attoe Sergeant to the same purpose, but his only argument was, because the Plaintiff had alleged that the fees were due to him, and so no scandal according to Snags case.  
But it was resolved by Hobert and Winch being only present, for Hutton was in the Chancery, and jones was not yet returned from Ireland; that the Plaintiff shall have judgement, and first it was agreed by them and by Hutton the day before, that tunc et ibidem shall have relation to the same time that the first words were spoken, and secondly, by Hobert and Winch though the office appertains to 2. yet this is a scandal to him, for the scandal is to the person, and not to the office, and the persons are distinct and several, though the office is joint, and they may not join in an action, for of the other no words are spoken, and so they agreed that this objection is of no force, and as to the other objection which was made by Hendon, and by Attoe, Hobert said that true it is as had been cited, but he said for his part he never was, nor yet is satisfied in the Law of that case, for be she in life or not, yet the scandal is the same to the standers by, who perchance did not know that she was living, and so the scandal never the less: but admitting the case to be good Law, yet our case differs from the reason of that, for in our case he had showed that 2. s. fees were due to him for the engrossing of Feodaries, and the Defendant said, that he took money for the engrossing of Feodaries which is Cozening, and so shall be intended that he took more than was due, and this is extortion; and as to eliot's and Brown's case he agreed, that to say he had made false writings no action will lie, for it is no scandal to him in his profession, for it doth not appertain to an Attorney, to make writings, no more than it appertains to an Appothecary to give Physic, and so it is no scandal to him in his profession: and he agreed the case of Mallard against Wise, he forged my husband's Will, no action will lie, for the words are repugnant and contrary, for if it be forged, it is not the Will of her husband, but in our case the words had a plain sense to common understanding, and shall be intended to refer to his office, for if he had said that he took money for engrossing of Feodaries, which is deceit without question, that had been actionable, but there may not be Cozening without deceit.  
And he cited Boxes case, where one said of an Attorney, that he was a maintainer of suits, and a Champerter, action lies, for it shall be taken to be a scandal to him in his profession, for though an Attorney may maintain suits, yet he ought not to be a Champerter, and he further said, that he who will maintain an action for words ought to be scandalised in his public profession, and he cited a case which was in the King's Bench, Brad against Hay, and the Plaintiff declared, that he was Bailiff to such a one, and that he had the buying and the selling of his Corn, and that the Defendant said of him, that he sold by false measures, and adjudged that no action lies, for it is not a scandal to him in his public profession, and so 36. Eliz. one said of a Merchant that he kept a false debt book, and because he may be a Merchant without a debt book, it was ruled that an action doth not lie, but if he had said of him that he deceived men by buying and selling, these words had been actionable, and he said that two things are required to every public profession, science, and fidelity, and when a man who hath a public profession is scandalised, in either of those an action of the case lies, and cited Palmer's case of Lincoln's Inn, he being a Lawyer 'twas said to him by one, that he had as much Law as a jackan-apes, and adjudged to be actionable, for it is a scandal to him in his profession, and so Sir Miles Fleetwoods' case, where he who is Plaintiff in this action was Defendant in that, he being receiver of the Court of Wards, one said to him, Mr. deceiver hath Cozened the King, and hath dealt falsely with him, and adjudged that an action upon the case lies, and yet he did not show, wherein he had Cozened him or dealt deceitfully with him, but yet because it appears to the Court that he might deal deceitfully, and Cozen the King, therefore actionable, and he cited Birchleys' case, you have dealt corruptly, an action lies, and yet he did not show wherein he had dealt corruptly, and here he had said he was a Cozener by the receipt of money, which is an express scandal to him in his office. Winch accordingly to every office of trust is a condition in Law annexed, that he deal honestly and justly, and he cited Wingates case in the King's Bench, one said to another, is Wingate your Attorney, and the other said that he was, and the other replied, take heed and follow him well, for else he will make you throw your purse over your bosom; and it was adjudged that an action lies, for it is a scandal to him in his profession, and it shall be taken as much as if he had said, he will make you spend all the money in your purse, if you look not the better to him, and so applied this to the principal case: and in this case judgement was commanded to be entered for the Plaintiff in the action, if no other cause be showed before such a day.  
An action upon the case was brought for these words, the Plaintiff did load a ship of my Fathers with Barley, and did steal, and Cozened 7. quarters thereof in measure, and upon not guilty pleaded it was found for the Plaintiff, and now it was moved in arrest of judgement, that the word Cozened being joined with the word stole, had taken away the force of that, and made it but Cozening, but Hutton contrary, and that it shall be understood, that he stole 7. quarters in measure, and quantity, and Winch seemed to agree, and it was adjourned: and an other day awarded that an action lies.   

Godfrey Wade Alias Mack-Williams case.  
GOdfrey Wade and others in an ejectione firm, and the case upon a special verdict was to this effect, Henry Mack-Williams the father was seized of land, and being so seized he conveyed that to the use of himself for life, the remainder to his wife for life, the remainder to the heirs of their two bodies engendered, the remainder to the heirs of the body of Mack-Williams the Feoffor, and the remainder to his right heirs in fee, and he had a son by his wife named Henry, and 5. daughters, and he died, and afterwards the son in the life of his Mother by deed indented, leased to White-Head for 31. years rendering rend, and afterwards he levies a fine to the use of himself, and his heirs in fee, and died, and after whose death the Mother suffered a recovery within six months, in which 4. of their husbands were vouched, and the recovery was to the use of the feme for life, the remainder to every one of the daughters in fee, and the sole doubt was, whether the lease made by Henry the son is defeated by this recovery, and it was argued by Harvey Sergeant, that the lease shall stand good, notwithstanding this recovery suffered by the Mother, for he said, that Henry Mark-Williams being issue in tail, and also being heir to the remainder in fee, who made this lease by indenture, in this case this lease issues as well out of the estate tail, as out of the reversion in fee, and the fine levied in the life of his Mother, binds and bars the estate tail at the time of the fine, and then the lease being drawn out of the reversion in fee, which descended to the daughters after the death of their brother, this reversion shall be charged with the lease, and the recovery had not destroyed that: and this case will differ from Capulets case, for it is agreed, if tenant in tail be, the remainder in fee, and he in remainder in fee granted a rend charge, and after Tenant in tail suffer a recovery, by this the rent is destroyed, for there he who suffered the recovery was Tenant in tail in possession, but in our case when the son had levied a fine in the life of his Mother, by this fine the tail is destroyed, and the Mother is become Tenant in tail after possibility of issue extinct, which is only an estate for life in quantity, and then though she suffers a recovery, yet this doth not destroy the lease made by Tenant in tail, when there was also a fine levied to confirm that. Secondly, he argued, that when the issue in tail in the life of his Mother made a lease for years by indenture, and then levied a fine, and died, and then the Mother being Tenant in tail, and joyntress within the Statute of 11. H. 7. as in our case she is, and she suffers a recovery, and vouches the daughters in reversion, and lessee for years enters after the death of the feme, by force of 11. H. 7. for lessee for years is a person who may enter within the express words of that Statute, which gives entry to any person who hath an interest, and see for that Coo. 3. Lincoln College case, and Dyer 148. Thirdly, he held that though it should be so, that lessee for years may not enter by force of the Statute, of the 11. H. 7. yet he may falsify a recovery by the Statute, of the 21. H. 8. which enables lessee for years to falsify as well as lessee for life, and it appears by the verdict, that the sole intent of this recovery, was to defeat the lease for years, for this was suffered within 6. months after the death of Henry Mark-Williams the son, and also the recovery was to the very same uses which they were before, and therefore the lessee may falsify the recovery, it is true in Capulets case, the lessee of him in remainder may not falsify a recovery suffered by Tenant in tail, though it was suffered of purpose to defeat the lease for years, but in our case the lease for years doth not enure by virtue of the estate tail, for that is bound by the fine, but this issues out of the reversion in fee, and for that reason the lessee shall falsify this recovery, in an ejectione firm, or in an avowry, and he cited King's case, Hill 37. Eliz. B. R. Rot. 293. Tenant in tail enfeoffed his son, and after he deceased him, and afterward levied a fine of that with Proclamations, the son entered upon the Conusee, and made a feoffment, and the Proclamations passed, and the feoffee of the son let for years, and then the father and the son died, and the issue in tail brought a formedon, and recovered, and it was agreed, that lessee for years may falsify this recovery, and he said that he had seen a Note in justice Manwoods' Study, that it was agreed in his Circuit, that lessee for years to begin at a day to come may falsify a recovery, and so be concluded his argument.  
Hendon Sergeant to the contrary, and he divided the case in three points. First, when Tenant in tail had issue a son, and a daughter or two sons, and the eldest son in the life of his father, who is Tenant in tail levies a fine, and dies without issue, whether this shall bind the youngest son, and he thought that it should not, and yet he agreed, that an estate tail may be barred by a fine, though he who levied the fine was not seized at the time of the estate tail, and this by the very words of the Statute, of the 32. H. 8. see the case of fines Coo. 3, and Grants case vouched, Lampets' case, and so is the case of Hunt and King 37. Eliz. cited by my brother Harvey, and so he agreed clearly, if the son who levies the fine, survives the father who was Tenant in tail, that then in this case this binds the estate tail for ever: and the reason is upon the very words of the Statute, of 32. H. 8. or any was entailed to the Ancestor of the issue in tail, and in this case, when the issue doth survive the Ancestor, and dies, this shall bind the issue, because it was entailed to him who levied the fine who was his Ancestor, for he may not make any Conveyance to the estate tail, except he make mention of him, who levied the fine, because that he survived the father who was Tenant in tail, but when he who levies the fine dies in the life of his father, viz. the eldest son, than the youngest son may convey an estate tail to him without making mention of his eldest brother: and this appears by the 46. E. 3. 9 4. H. 6. 10. 11. H. 7. 6. see the case of Buckner Coo. 8. from which cases he inferred, that if the youngest brother may have an action at the Common Law, without making mention of his eldest brother, than such a construction shall be made of this word Ancestor, in the Statute of 32. H. 8. that it shall be taken for such an Ancestor, by whom the issue in tail claims, and for no other Ancestor, and for this he put the case, if land be given to a man and to his heirs, females begotten of his body, and he had issue a son, and a daughter, and the son levied a fine, and died, this shall bar the estate tail for the cause aforesaid, and for authorities in this kind he cited the reports of Dallison of— Eliz. printed at the end of Ashles Tables in Stamfords' case in the end of the same case, where the very difference is agreed, 
Mich. 29. Jac. C. P.  where the eldest son dies in the life of the father, and where not: and Hobert demanded of him by what warrant those reports of Dallison came in print.  
And then Hendon cited the opinion of some of the judges, in the case of Zouch and Banfield: and see Coo. 3. the case of fines according to this difference: and he said, that Sir George Brown's case will warrant that in the very letter of it, for there it is said, that no issue inheritable by force of the tail may enter after the fine, by which he inferred, that if he is such an issue that is not inheritable, he is out of the Statute, and so he concluded the first point, that the fine being levied by the eldest son, in the life of his Mother, that shall not bar the estate tail. Secondly, he argued that as this case is, the feme is not within the Statute, of the 11 H. 7. because that at the time when she suffered a recovery, she was seized of an estate, in general tail by force of the remainder which was limited to her and her husband, and to the heirs of their two bodies engendered, which took effect in the feme, at the time of the death of the husband; and this being an estate in tail of the purchase of the huband which took effect in remainder, this may not be a jointure within the Statute of of the 27. H. 8. and then if she be not a joynteress within that Statute though this estate was of the purchase, and of the acquisition of her husband, yet this is out of the danger of the Statute, of the 11. H. 7. for the words are, any woman who had any estate in dower, or in tail joint with her husband of the purchase, and of the acquisition of the husband: which words of the purchase of the husband had relation to Tenant in dower, or to a woman who was a joyntress, and was not the intent of the Statute, to make such a remainder to be within the danger of the Statute, when the husband himself in his life may dock this by a recovery, and therefore it is not within the Statute.  
And as to the Third point he argued, that admitting that she was a joyntress, within the Statute of the 27. H. 8. yet when the feme suffers a recovery with the assent of him in remainder in fee, this recovery is out of the body of the Statute, of 11. H. 7. any which shall discontinue, or release with warranty, and that all such recoveryes shall be void, and shall be taken for feigned recoveries, and this may not be imagined a feigned recovery, where he in remainder in tail is vouched by him who is Tenant for life, Jennings case Coo. 10. and such recovery, as is there resolved, is out of the Statute of the 14. Eliz. and is good by the Common Law, and so in our case, but admitting this to be within the Statute of the 11. of H. 7. yet the proviso of the same Statute had made that good, for there is an express proviso, that a recovery with the assent of the heir inheritable, if this appear upon Record this shall not be within the Statute, and in our case, this is with the assent of the heir inheritable, and also this appears to be of record, and so the recovery is out of the danger of the Statute, of the 11. H. 7. See Doctor and Student, a book which was written but a little time after the making of this Statute, and Dyer 89. Vernons case, and he said that the intent of the same Statute, and of the proviso of the same Statute was to have issues and heirs, and not termors, who had only a future interest to falsify recoveries, and so he concluded that the recovery is out of the same Statute, and that the proviso of the same Statute had made that good, by the assent of the heir, but admitting, this should be against him, that this recovery shall be within the Statute, yet the lessee in our case shall not falsify, nor take advantage of the forfeiture by force of the same Statute, but it hath been objected by Harvy, that the wife in this case had only an estate for life, or Tenant in tail after possibility of issue extinct, and he answered that the resolution in Beamounts' case Coo. 119. is contrary, for it is there expressly agreed, that she was Tenant in tail after the fine levied by the issue, and so was it also resolved in Pophams' case 9 Eliz. but there it was doubted whether she was Tenant in tail, within the 32. H. 8. who might make a lease, but all agreed that she was Tenant in tail, who may suffer a recovery, and bind the remainder: and then when the feme suffers such a recovery as in our case, that recovery shall take away a term for years which was made by the issue in tail, 
Mich. 20. Jac. C. P.  in the life of his mother, notwithstanding she was a joynteress within the 11. H. 7. also he said, that this lease for years being made by Henry Mark-Williams, the son who was heir to the estate in tail, and also to the reversion in fee, being made by deed indented rendering rent, this shall be a lease which issued out of the estate in fee simple, and not out of the estate tail, and this shall be out of the estate tail by estoppel, being by deed indented, for an estate shall not enure partly by way of interest, and this lease to begin after the death of the feme, he may not take advantage of the forfeiture, for though the words of the Statute are, that all such recoveries shall be void, yet this shall not be void without entry, and he who will have benefit, by this aught to be mabled to enter presently, so soon as the recovery is suffered, for as there ought to be a person, in esse, who shall take benefit of the same Statute, as appears by Coo. 3. Lincoln College case, so there aught to be a present estate in esse at the time of the recovery, for the words of the Statute are to whom the interest shall appertain, but in our case the interest doth not appertain to the lessee, who had only a future term, and therefore he shall not take the benefit by any forfeiture, within the Statute of 11. H. 7. and the rather in our case, because there is a rent reserved; also all this matter is found by special verdict what estate the son ha● & when he made the lease by indenture, Dyer 244. Coo. 155. and Bredons' case, in Treports case lessee for life, and he in reversion by indenture let for years, this is no estoppel, and it shall be said to be the lease of one, and the confirmation of the other: and here the lease shall be said to issue out of the reversion in fee, and not out of the estate tail, and he vouched a case adjudged 10. Jac. when Fleming was chief justice of the King's Bench between Errington and Errington, and the case was, that a man conveyed land to the use of himself, and his wife in tail, the remainder to his right heirs, and had issue a son and a daughter, and he died, and the son let for years to begin after the death of his Mother, and he died without issue, and the daughter levied a fine, and the wife who was Tenant in tail died, and the question was, whether this lease for years issued out of the estate tail by way of estoppel, for then the Conusee shall not avoid this, but it was adjudged this lease was drawn out of the reversion in fee, and the Conusee of the daughter shall avoid that, which is all one with our case; but admit that this lease is good by estoppel out of the estate tail, yet he shall not take benefit of the forfeiture, within 11. H. 7. and this differs from Sir George Brown's case, for there the Conuser entered by virtue of a remainder, and not by the estate tail which passed to him by estoppel: and upon that he concluded, that if this is an estate merely by estoppel, he shall not have benefit by that.   

Pope and Reynolds before.  
NOw the case between Pope and Reynolds (which see before) was moved again by Ashley for the Plaintiff in the prohibition, and the case was, that he was owner of a Park, and the Park had been time beyond memory, replenished with dear till the 10th. of Eliz. at which time that was disparked, and that the owners had used before the disparking to pay a Buck in Summer, and a Do in winter, in full satisfaction of all Tithes due to the Vicar; and the Parson had libelled in the Ecclesiastical Court for Tithes in kind, and also traversed the prescription, and it was found for the Plaintiff in the prohibition, and it had been moved in arrest of judgement, that notwithstanding this prescription is found for the Plaintiff, yet he shall not have judgement for two causes. First, because gross Tithes belong to the Parson; and not to the Vicar, for the Vicarage is derived out of the Parsonage; to this he answered, that for the most part every Vicarage is derived out of the Parsonage, but it is a mere non sequitur that this doth, for the Vicarage, and the Parsonage may have several patrons, Fitzh 45. also a Vicarage may be time beyond memory, as in our case 40. E. 3. 2. 7. and Fitz. juris utrum. a Vicar may have a juris utrum. and also he said, that in some parts the Vicar shall have Tithe Corn, and hay, and not the Parson, and so he concluded this to be a good prescription by the Common Law; and then for the second point, he argued that though the Park is disparked, yet the modus decimandi continued, and he vouched Beddingfields, and Fields case P. 38. Eliz. B. R. prescribed to pay 10. s. for a Park, this modus had a continuance notwithstanding the disparking: and 18. jac. upon a motion a prohibition was granted in such a case.  
Hendon to the contrary; and yet for the first point he agreed, that a prescription to pay Tithes to the Vicar was good, for here it appears, that the Vicarage is as ancient as the Parsonage, both being time beyond memory; and it was the opinion of all this Court when the case was first opened, and so he said, he would not insist upon that, but agree the Law to be against him, but then for the second point, he held the modus to be gone by the disparking, for the prescription is annexed to the Park, and not to the land, for the prescription is to pay a Buck and a Do for all manner of Tithes of that Park, and then the prescription is in some sort annexed to that merely as land, but quatenus a Park, and for this he held, if a man will prescribe to pay 10. s. for the Tithes of such land, and it is given in evidence to be a Park, this will not maintain the issue, for a Park is deceivable one way or other, and so are of several natures, and so Coo. 4. Lutterels case, a tenure to cover the hall of the Lord, if the hall is thrown down the tenure is gone, and here when the Park is destroyed, the modus is also destroyed, but it hath been objected here, that the prescription is general, and therefore though the Park was disparked, yet the modus had continued, to this he answered, that this prescription shall have such construction as a grant shall have, and though it is general, yet it is sub modo subject to this limitation, that this always continue and remain a Park, and it was resolved 43. Eliz. that the Commoner may not grant over his Common, except he grant over his Tenement, for they may not be severed, and so indeed is Nevil's case in the Commentaries: a man prescribed to have estovers to burn in his house, if the owner destroy the house the estovers are gone, for the prescription is annexed to the house, and so in our case the prescription is annexed to the Park, and not to the land, for 18. H. 6. 21. a Park may not be without the grant of the King, and the Common Law saith, if a man prescribe to have Tithes in a Vineyard, if the Vineyard be converted to another use, the Tithes are gone, for it is said tantum est prescriptio, quantum est possessio, and vouched Coneys case, 14. Caro. who prescribed to be discharged of paying Tithes for a meadow, and afterwards this was converted to arable, and the opinion of the Court was, that the prescription is gone, and the rather in our case, because it is by the act of the party himself that the Park is destroyed, & yet he agreed the principal case in Lutterels case, Coo. 4. for there a new will is only a translation of the old, and no destruction of the thing which was before: but in our case the Park itself is destroyed by the act of the party himself, and therefore the prescription which was annexed to this is gone forever.  
Also this prescription is against Common right, and therefore shall be taken strictly, as Teringhams' case Coo. 4. a man had Common appurtenant in another man's land; and he purchased parcel of the same land, the Common is gone, because this Common is against Common right, but otherwise of a Common appendent, and he cited Wild's case Coo. 8. according to our case, that a prescription to pay a Buck, and a Do for the Tithes of a Park is against Common right, for though Tithes are not due jure divino; yet they are due jure humano & Communi; and therefore the prescription is not founded in Law, and it shall not be intended to the Park, when that is destroyed and converted to arable, as if a man made a feoffment of land with warranty, and afterwards the land is improved and made of greater value, then that was at the time of the feoffment; if in this case the feoffee is evicted and lease that, and recovery in value upon the warranty, he shall recover in this case, only the value that this was at the time of the feoffment made, and not according to the value, that the land is of at this day by the improvement, 32. E. 3. Entry 81. and in our case it shall be intended, that by composition at the first this prescription had beginning, and the composition only extended to the Park, and not to a new thing, and for that reason the prescription is gone in this case, and he cited a case in this Court, M. 10. jac. Rot. 1223. in a prohibition between Roux C. D. the Plaintiff suggested, that such land was parcel of a Park as in our case, and that the owner had used to pay the shoulder of every Do which was killed, and 2. s. annually for all Tithes, the Defendant pleaded that this was disparked, and the first opinion of the Court was, that the Defendant ought to plead in certain how that was disparked, secondly, this was doubted whether the modus as to the 2. s. was gone in regard, that the shoulder of the do is gone by the disparking, out of which he collected that the modus is annexed to the Park, and not to the land, and so he concluded, and prayed a consultation.  
Winch said to him the prescription is found against you, and therefore you ought to have demurred; Hendon, if the prescription is gone, the Plaintiff shall not have a prohibition; and at another day judgement was commanded to be entered for the Plaintiff, 
judgement.  if no other matter is showed by such a day, Hobert and Winch being only present.   

The Bishop of Gloucester against Wood  
IN a Trover and conversion brought by the Bishop of Gloucester against Wood, upon a special verdict, the case in effect was, that the predecessor of the now Bishop was seized of the Manor, of D. and he let 20. acres of that to A. and B. during the lives of 3. of their Children rendering 27. s. ren● per annum, and also paying and delivering to the Bishop and to his successors, two of the best beasts upon the death of every one of the Cestuy que vies, and over the jury found, that after the lease of the 20. acres, the same predecessor let all the Manor, rendering the ancient rent to Wood the Defendant, and after one of the Cestui que vies died, and he seized two of the Cattle for a herriot, and whether this appertained to Wood the lessee of the Manor, or to the Bishop was the question, and it was argued by Sergeant Hendon, that this appertains to the Plaintiff, and not to Wood: and as to that the single point, is a Bishop: is seized of a Manor in the right of his Bishopric, and lets parcel of that for life, whether the reversion of this parcel be always parcel of the Manor notwithstanding this lease, and he argued that it was not, and yet he agreed, that if another let, as aforesaid, the reversion continues always parcel of a thing in possession, and that in the case of the King himself, as appears by Dyer 230. if the King lets parcel of a Manor for life, the reversion of this parcel passeth to the King, for the reversion had all times continuance in the same capacity, and no alteration is made of this by force of the lease, but where the lease for life is a discontinuance, there he gains a new reversion, and this shall not be parcel of the Manor, and for that if a man is seized of a Manor in the right of his wife, and he lets parcel for life, this is a discontinuance, and he had gained the reversion in his own right, and for that reason the reversion may not be parcel of the Manor, as appears by 18. Assizes: and also he held if Tenant in tail lets parcel of a Manor for life, that were the reversion of this parcel, is not parcel of the Manor for the cause aforesaid; and so in our case, when the Bishop granted parcel which is not grantable by the Statute, now he had discontinued the reversion, and had gained a new fee simple which may not be parcel of the Manor, so long as this new fee simple had a continuance, and this was his first reason.  
And secondly, he argued from the intent of the parties, because the intent was, that the lease to Wood shall be good, and if the reversion of the 20. acres pass to Wood, this will make all the lease void, for no rent may be reserved out of the reversion, but out of the land itself, 3. Assize Placito ultimo, a Bishop let land, and a hundred, rendering rend, the rent issues out of the land, and not out of the hundred, and so here it issues out of the land, and not out of the reversion, which made the lease all void; and so he concluded the first point, that the reversion of the 20. acres did not pass to Wood the lessee of the Manors.  
Secondly, when the Bishop lets 20. acres of ground rendering rend, and this is not confirmed by the Dean and Chapter as it ought, and after he lets the Manor, and the successor accepts the rent of the Manor, this acceptance shall not make the lease of the 20. acres to be good, admitting that the reversion do pass; and when the Bishop had made a lease for 3. lives he may not contract for the reversion, and when a lease is merely void in the creation, there no acceptance afterwards may make that good; but admitting this to be against him, yet the lessee shall not have the Herriot, for they are not appendent to the reversion, but due only by way of Covenant; and the words are yielding etc. and this being a Collateral thing, it shall not go with the reversion; and the Herriot here may not be had without it be delivered by the lessee for life. Secondly, it is paid only in the name of a Herriot, and this is not Herriot service. Thirdly, it is to be paid upon the death of a stranger, and not upon the death of the lessee, and all this proves this Herriot to be collateral; and he cited Rawlins case, a lease for years paying for a fine 20. l. this is a sum in gross, and shall not pass with the reversion; and so he prayed judgement for the Plaintiff.  
Attoe contrary; and yet he agreed the case of the husband and wife, and of the Tenant in tail, for here the lessor gains a new fee simple, but in our case, when the Bishop lets for life, this is not any wrong, for the successor may enter, and he shall have this lease not in his natural capacity, but always in his politic capacity, and for that there is an apparent difference between the cases; and for that reason, he held that the reversion was parcel of the Manor, and so passed to the lessee, and as to that which had been said, that the intent of the parties was only, that the Manor in possession, and not the parcel in reversion should pass to the lessee, for that is most beneficial to the lessor, to this he answered that by express words this is granted, and no construction shall be made contrary to the very express words of the grant, and here though the Defendant had not any title at all to the Herriot, yet the Plaintiff shall not have a trover and conversion for this, because that he himself had not right to this, and for that reason judgement shall be given for the Defendant; and he also argued, that the lease of the reversion is not merely void, but voidable, and then the acceptance extends to this: see 37. H. 6. the lease of a Pri●r 2. E. 6. B●. Abbot's case. Upon which authorities, he said clearly by the Common Law this lease of the reversion is not merely void but voidable, and for that the confirmation of the Dean and Chapter, after the Statute of the first of Eliz. had not altered that; and for that a lease after the Statute shall not be merely void, and see Lincoln's College case, Coo. 3. and in our case there is a possibility, that the lessee of the Manor may survive the cestui que vies of the 20. acres, and that possibility is sufficient to make this good out of the reversion, for then the lessor may distrain for his rent, but where no possibility of a distress is, there no rent may be reserved; as in jewels case, the lease was void, for there was no possibility that the lessor shall ever distrain, but in our case the lease for years is good, for the lessor is not without his remedy, for he may have an action of debt upon this reservation; 1. H. 4. 2. there a measnalty in gross was let rendering rend, and good, for by possibility the Tenant may die without heirs, and yet this is a remote possibility; 12. E. 3. execution 112. a reversion granted by fine in tail rendering rend, is good; and Coo. 5. Elmers' case, that a reversion being let for life rendering rend, is a good reservation at the Common Law; and he held without question, that where a Bishop is seized of a Manor which consists part of freeholders, and part of Copiholders, that a lease of the Manor rendering rend is good; and in our case the reservation of the rent is entire, and shall bind the successor: and as to that which had been said, that the Herriot is Collateral, and shall not go with the reversion, to this he answered, that if it is merely Collateral, than it shall not go to the successor of the Bishop but to his executors, as if the lessee had covenanted or obliged himself to pay this Herriot to the successor, he may not have benefit of this obligation, but the executor of the Bishop who was lessor shall have that, and so he said, that the argument made by Hendon is against him, for if it be merely Collateral, than this shall not go to the successor, and though the lessee of the Manor may not have it, the Plaintiff shall not have a Trover and Conversion as he said before: but he held this good by way of reservation, for modus & conventio vincunt legem, and as to that which hath been said, that the Herriot is to be paid upon the death of a stranger, and not upon the death of the lessee himself, to this he answered, that this is nothing, for the payment shall be out of the beasts of the lessee, and not out of the beasts of a stranger, and so he concluded and prayed judgement for the Defendant.   

Rives case.  
SAlmon avowed for a rend charge, and he shown that Sir Robert Rives had a rent charge granted to him, and he further shown a descent of that to the son and heir of Sir Robert; and shown that the rent was behind unpaid to him viz. to his son and heir, and he avowed as Bailiff to the son, and exception was taken to the avowry, because it is not expressly alleged in whose time the rent was due, whether in the time of the father, or in the time of the son, for if it is behind in the time of the father, the son may not distrain for that: but it was resolved that the avowry was very good, for in as much that he had showed, that the rent was not paid to the son, this implied the rent was due to the son, and not to the father.  
An Executor brought a Scire Facias upon a judgement given for the Testator in debt by him, and the Defendant would have pleaded the death of the Testator between the verdict and the judgement, & per Curiam he was not suffered, for he may not plead this in a Scire Facias, but the Defendant is put to his writ of error.  
In Trespass for beasts taken in London, and the Defendant justified to taking as a distress upon a lease of land in Kent, and the Plaintiff replied that the Defendant sold the beasts in London, and so not a good plea to bring the Trial out of Kent, and to have that tried in London, which note.   

Batterseys case.  
AN action upon the case was brought against one Hordecre upon an assumpsit, and he declared that the Defendant had arrested one Battersey, by virtue of a Commission of Rebellion out of the Cinque ports, and that the Plaintiff keeping a Common Inn, the Defendant brought the said Battersey to his Inn, and requested the Plaintiff to keep him a day and a night, and promised in consideration there upon that he would save him harmless; and he shown that he kept the prisoner accordingly; and that the said Battersey brought an action of false imprisonment against him, and recovered against him, upon which the action accrued: and upon non assumpsit pleaded, it was found for the Plaintiff, and now it was moved in arrest of judgement, because he had not showed that the said Battersey was lawfully arrested and imprisoned, and then if a man will without cause arrest a man, and promise in this case, no action will lie, for it is no consideration because that the imprisonment is unlawful, but Hobert chief justice, Hutton and Winch contrary: for be the imprisonment lawful, or not lawful, he might not take notice of that: as if I request another man to enter into another man's ground, and in my name to drive out the beasts, and impound them, and promise to save him harmless, this is a good assumpsit, and yet the act is Tortuous, but by Hutton, where the act appears in itself to be unlawful, there it is otherwise, as if I request you to beat another, and promise to save you harmless, this assumpsit is not good, for the act appears in itself to be unlawful, but otherwise it is as in our case, when the act stands indifferent, but Hobert said, it may be there is a difference between a public officer, and a private man, for if the Sheriff arrest a man unlawfully, and promise as before, this is a good assumpsit, but perchance otherwise of a private man as here, but in the principal case, the Defendant had pleaded non assumpsit, and this implies a Lawful imprisonment, for otherwise the Defendant might have given the unlawful imprisonment in evidence, and judgement was commanded to be entered for the Plaintiff.   

Claworthy against Mitchel.  
CLaworthy against Mitchel in a replevin, the Defendant avowed for a rent, and shown that his father was seized, and let for years rendering rend, and he died, and that the reversion descended to him, and for rend behind he avowed; in bar of which avowry the Plaintiff said, that the father devised the reversion to another, and the other maintained his avowry, and traversed the devise; and it was found that the devise was only of two parties, and not of the third part, for in very truth, the land was holden by Knight's service, and all this was found by special verdict, and for whom the jury had found was the question; and it was argued by Hendon, that this verdict is found for the avowant, and he vouched 32. H. 8. Brook issue 8. in a praecipe quod reddat, if the issue be whether A. and B. enfeoffed the Tenant, and it is found that A. enfeoffed him, but not that A. and B. enfeoffed him, the issue is found against the Tenant, see 14. E. 4. and Dyer 260. in debt upon a lease for years of divers parcels of land, and upon non demisit pleaded, it is found quod demisit all except one parcel, this is found for the Plaintiff, and ●rin. 15. jac. Rot. 2022. Allen against Soper in a replevin for a horse, and avowed for damage fesant, and the Defendant claimed Common for his beasts Levant and Couchant upon his land, and some in this case were found Levant and Couchant, and others not, and it was found against the Plaintiff, and he said in this case, when the Defendant had alleged a devise of all the land, and upon this issue is joined, and it is found that part is devised and not all, this is found against the Plaintiff, because the issue is joined upon a particular and a special point, whether all was devised or no, and yet he agreed that upon a general issue as in trespass in 20. acres of land, and the Defendant is found guilty but only in one, yet the Plaintiff shall have judgement, but not where the issue is joined upon a particular point as here, but admitting that the Plaintiff shall have judgement, yet the avowant shall have return for the third part; as in debt upon a lease for years, and it is found that he had not cause to demand all the rent, but that t●is ought to be apportioned, yet he shall have judgement for the residue, and so here: Ashley Sergeant to the contrary; the jury have found for the Plaintiff, for the avowant had avowed for all, and he alleged 26. Assize, where in an assize the seisin and the diseisin was found, and yet because there was no Tenant found of the Franktenement, the Plaintiff shall have judgement, and as to that that had been said, that the avowant shall have return for part, he denied that, for now it appeared by the special verdict, that the avowant and the devisee are Tenants in Common, and Tenants in Common aught to join in avowry: and for that reason the avowant shall not have return for any part, but he ought to replead, Dyer 177. see the book; Hobert said, that without question in this case, if the jury had given a general verdict, this had been against the Plaintiff, for it was not devised, if all was not devised according to the issue: and then if it would have been against the Plaintiff in this case of a general verdict, the special verdict shall be construed to be of the same nature in law, and it shall be adjudged by us against the Plaintiff, for generally where the general issue shall be against any of the parties, there the special verdict shall be of the same degree, and Winch and Hutton agreed, and by Winch who pleads in the affirmative, aught to prove all to be true, as in the case of Soper, which had been remembered by my brother Hendon, and by Hutton, every issue which is taken upon absque hoc ought to be precisely found; and as to the second point, he held that the avowant shall have return for part, for here the jury have found the third part of the reversion in him, and by that there appears a sufficient certainty to the Court to make an apportionment, & then if the Court may make an apportionment, the avowant shall have return for so much as is due to him, but if the apportionment is to be made by the jury, and not by the Court, there the avowant shall not have return for the third part, but if it was in debt for 40. l. and the jury find 20. l. the Plaintiff shall have judgement of that part to be apportioned by the jury: and so in Trespass, if part be found for the Plaintiff, he shall have judgement, for the demand is by writ, but in our case it is an avowry, and it is a certain issue, and for that reason the avowant shall not have return for the third part, adjourned; Hutton alleged 28. H. 8. 32. and at another day judgement was commanded to be entered for the avow an't, Hobert, and Winch being only present.  
Note, that if a man make a lease of several parcels of land in a Town, and this is for the trial of a title in an ejectione firm, he ought to enter into every part of those several, and to leave a servant, or other to keep the possession till he had entered into every parcel: and then to deliver the lease of all, and this is good.   

Empson and Bathrust before.  
THe case of Empson against Bathrust was moved again by Harris, and he prayed judgement for the Plaintiff, and it had been said, that this obligation is void by the Statute of the 23 H. 6. but he held that this Statute did not extend to this obligation, for it is only where a sheriff takes a bond of any person which is in his ward, and yet he said, he never found in any book the Sheriff might exact any fee of any person, for he is an officer of the King, but 21. H. 7. he may prescribe to have a bare fee, but the Statute of 23. H. 6. appoints little fees in some cases. Secondly, he argued in this case, that the Sheriff may take a bond for by 29. of Eliz. this is a due debt to the Sheriff; and than if the Sheriff give the party day till another day, it is good reason he shall have a bond for that for his security. Thirdly, he held that the Sheriff may take this bond of the party after the extent, and before the liberate by the Statute of the 29. Eliz. for otherwise perchance when the Sheriff had made the extent, perchance the Conusee will not sue out the liberate, and so the Sheriff shall be defeated of all his labour and travel taken in the extent: and in the last place he said, that in case the sum exceeded a 100 l. the Sheriff shall have 6. d. in the pound for that which exceeds, and 12. d. for the first hundred pound: but it was resolved by Hobert, Winch, and Hutton, that judgement shall be given against the Plaintiff, and first they agreed this obligation not to be within 23. H. 6. for the party was not in the ward of the Sheriff, and so was resolved in Bewfages case. Secondly, it was agreed by the said 3. justices, that the Sheriff may not take his salary appointed by the Statute, till a complete execution, viz. till the liberate, for the words of the Statute are in the negative, and doth not establish the fees, but only tolerates them, and Hobert said, if the Sheriff made an extent, and before the liberate a new Sheriff is chosen, then in this case the new Sheriff shall have the fees appointed by the Statute, and not the ancient Sheriff: and by Hobert, if the Conusee sue an extent, and then refuse to sue the liberate to the intent to defraud the Sheriff of his fees, the Sheriff shall have his remedy by his action upon the case; and by Hutton, if the Sheriff return upon the extent, that he is ready to deliver that to the Conusee, this is sufficient to entitle him to his action upon the case, and thirdly, it was holden by Hobert, and by Winch, that the Sheriff shall have but 6. d. in the pound for all, if it exceed 100 l. for so was the intent of the Statute, but Hutton said, that the Common practice is otherwise, and Hobert said, that he did not value that, for he knew well enough that the Sheriff will rather take more than less than their fees, and though it had been said, that if such a Construction shall be made, than the Sheriff shall have as much for executing 100 l. as 200. l. to this he said, the Sheriff ought to take this subject to this casually, for it is the very words of the Statute: and lastly, it was resolved by Hobert and Winch, that the obligation was void by the Common law, and extortion, and a taking by the Colour of his office, see Dive and Manninghams' case, and Hobert said, that every bond that is taken for any thing which is malum in se is void by the Common law, and this extortion is malum in se; and so void by the very Common Law, see Ouleys' case 19 Eliz. in Dyer; but Hutton doubted whether this bond is void by the Common Law, because the Statute of the 23. H. 6. inflicts so great specialty upon the Sheriffs for extortion: and after judgement was Commanded to be entered for the Defendant in the action, if no other matter be showed to the contrary before such a day.  
In trespass quare vi et armis one such being his servant cepit et adduxit at D. in Essex, the Defendant pleaded that he was a vagrant in the same County, and he not having notice that he was servant to another, he retained him; and it was moved by Finch, if I retain the servant of another man in the same County where I and his Mr. inhabit, this is not justifiable, though in verity I had not notice of that, and this according to the express book of the 19 Ed. 3. 47. Hobert, the book may not be law, for it is a hard matter to make me take notice of every servant, which is retained in the same County, and yet perchance if this retainer be upon the Statute of labourers, at the Sessions this is notorious, and I ought to take notice of that at my peril, but it is otherwise of a private retainer; for though it is within the same County, yet being a private matter in fact, the Law will not compel me to take notice of that at my peril, otherwise if this be matter of record, 2. H. 4. 64. and Hobert and Winch seemed to agree, and then Finch moved that the Plaintiff had charged the Defendant with his servant by cepit et adduxit, and the Defendant excused himself, and never traversed cepit et adduxit, see 11. H. 4. Hutton and Hobert, the receiving and the entertaining of a servant may not be said to be vi et armis.   

Mr. Spencer's case.  
HArvy Serjeant came to the bar, and demanded this question of the Court, in the behalf of Mr. Spencer, a man was seized of land in fee; and sowed the land, and devised that to I. S. and before severance he died, and whether the devisee shall have the Corn, or the executor of the devisor was the question: and by Hobert, Winch, and Hutton, the devisee shall have that, and not the executor of the devisor: and Harris said 18. Elizabeth Allens case, that it was adjudged, that where a man devised land which was sowed for life, the remainder in fee, and the devisor died, and the devisee for life also died before the severance, and it was adjudged that the executor of the Tenant for life shall not have that, but he in remainder: and Winch justice said that it had been adjudged, that if a man devise land, and after sow that, and after he dies, that in this case the devisee shall have the Corn, and not the executor of the devisor, nota bene.   

Dodderidge against Anthony, Entered Mich. 19 Jac. Rot. 1791.  
ENt. Mich. 19 Jac. Rot. 1791. Peter Dodderidge brought an action of account against one Anthony, and he declared that he delivered to the Defendant so many pieces of cloth, called Bridge-water red to be sold at Bilbo in Spain, and the Defendant said, that he sold the same cloth at Bilbo in Spain for 40. l. 18. s. English, to be paid in May next ensuing, the sale which was in November before, and over he alleged the Custom of Merchants to be, that if any Merchant had goods in the same Kingdom to be sold to another Merchant, and he sell the goods to be paid at a day to come, and this is done before a public Notary, and thereby a Bill signed and acknowledged to him & in his name who sold the goods, and that if the Merchant who so sold the goods, delivered the Merchant who was owner of the goods, this Bill so taken in his name, this shall be a discharge to him of the goods: and he averred that he sold them to a Spanish Merchant, and that he took a Bill accordingly, and at London offered that Bill to the Plaintiff, who refused that, and upon this plea the Plaintiff demurred. Attoe argued that the plea is not good, because he had not alleged that the party who takes such a Bill may plead that, and the Custom is also alleged with an (if) if the party sell, and if he take the Bill, and not with positive averment, that he may so sell and may so take the Bill, which being delivered to the owner of the goods, shall be a discharge to the factor who sold the goods: and here this custom is not good by the Common Law, for if I deliver goods to another to sell, and he sell them to be paid the money at a day to come, this is not good, for he ought by his sale to make a complete contract: and if I sell my horse for 10. l. I may retain the horse till the money is paid, for till then the contract is not complete; and so in this case, and here the Plaintiff shall have an action of account upon this delivery, and if he sell them otherwise, or do not sell them for ready money, he had gone beyond his Commission, and this Custom is unreasonable, that the Bill shall be taken in his name who sold the goods, but perchance if the custom had been alleged, to take the Bill in the name of the owner of the goods, this had been good; but in our case the owner of the goods may not sue, nor have any remedy for his goods, except the factor will go into Spain and sue the said Bill, and it is unreasonable to leave this to the pleasure of my factor, whether I shall have any remedy for my goods sold, and it is very unreasonable that I shall be paid with a Bill which may not be sued, and here the Plaintiff is a stranger to the Custom of Spain, and shall not be bound by that.  
Sergeant Harris to the contrary: the Custom which is alleged is good among Merchants, though it is not good according to our Common Law, and so if two Merchant's trade jointly, and one of them dies before severance of the goods, yet his executor shall have his part, and not the Survivor, and so by the law of Merchants a man cannot wage his law in debt upon a simple contract; by which it is apparent that the laws of Merchants differ from our laws, and indeed the laws of Merchants are National laws: and that this is the Custom in Spain is confessed by the demurrer, and then we may not examine that by the reason of our laws, and the laws of Merchants ought to be favoured for trading sake, which is the life of every Kingdom; and by the law of Merchants a Bill without seal is good, and yet by our law it is but an escrowl: and so I pray judgement for the Defendant. Hobert chief justice, when the Merchant had delivered goods to the factor to sell, he had made the factor negotiator gestorum: and for that reason the factor may sell the goods without ready money, and this is good reason, for perchance the goods are of that nature that they will not keep without perishing, by which clearly it appears, that if I deliver goods to another to Merchandise, and to sell, he may sell them without ready money, but if my factor or Bailiff will sell them to one which he knows w●ll prove a Bankrupt without ready money, this is not good: but secondly, he held the custom, as it is here alleged, not to be good, for then the party shall have no remedy for his money, except the factor will go into Spain and sue the Bill, and the laws of Merchants are special laws for their benefit, and not for their prejudice: and this custom as it is alleged is too large: but if he had alleged that such Bill taken by the factor shall be as good and effectual to the Mr. as if it had been taken in his own name, this had been good, besides the custom is not good, for it is alleged to be that when the factor had delivered the Bill to the owner of the goods, this shall be a discharge to him who was the factor, and here is no time set within which this may be delivered, and so for aught is showed it may be delivered 10. years after, which may be good; and to that which had been said, that the laws of Merchants are national laws, he denied that, for every Kingdom had its proper and peculiar laws, and though this is the law of Spain, and national to them, yet this aught to be reasonable, or else it shall not bind: and judgement was commanded to be entered for the Plaintiff, Hobert and Winch being only present.  
It was ruled that he who had land in a parish who did not inhabit there, shall be chargeable to the reparation of the Church, but not to the buying of ornaments of the Church, for that shall be levied of the goods of the parishioners, and not of their lands, by Sir Henry Yeluerton, and said to be so formerly adjudged.  
In trespass the Defendant pleads, that one such was possessed of a term for years, and bring so possessed by his last will and Testament devised that to the Defendant, and died, after whose death the Defendant entered, and was possessed by virtue of the devisee, upon which plea the Plaintiff demurred generally: and Hutton thought this plea prima fancy to be good, though the Defendant had not expressly alleged that the devisee died possessed, but his plea implies that, for he had said, that he entered by virtue of the devisee and was possessed, and this only matter of form, and not matter of substance, and no cause of general demurrer, which Winch also granted that this was also matter of form, and not matter of substance.   

Gage against Johnson for his fees.  
GAge brought an action against johnson as his servant and Solicitor to the Defendant in a suit in the King's Bench taking for every Term 3. s. 4 d. for his fees, and for this he brought his action of debt: and Sergeant Hitcham moved in arrest of judgement, and he urged the case of Samuel Leech, an Attorney of this Court, in an action upon the case brought by him, upon a promise to pay so much for the soliciting of a cause of the Defendant, and the opinion was, that the action will not lie, for it is in nature of maintenance, for a Solicitor may not lay out money for his Client: and if an action upon the case will not lie, then much less an action of debt: and Hobert said, that a Councillor may take fees of his Client, but he may not lay out or expend money for him, and the same law of an Attorney, for if he did disburse money for him, he doubted much what remedy he should have: and he further said, a servant may follow business for his Mr. and may take money for his labour, for if I retain my servant generally, he is not bound to follow my suits at law, except at his pleasure, for that is an extraordinary service: and for that if I will say to my servant, that if he will follow my business at Westminster, I will give him so much for his pains, my servant in this case is not without his remedy: but if his service is coupled with Soliciting to take money for his pains, his opinion was that no action will lie, to which the other justices also agreed, and they arose.   

Wright against Black before.  
NOw the case of Wright and of Black was moved again, and the case was, that Wright had brought an action upon the case against Black and Black, for that the Defendants intending to make away his good name, and to cause him to lose his goods, did maliciously and without cause at Norwich in the County of Norfolk, prefer a Bill of indictment at the Sessions of peace, containing that the Plaintiff stole two bundles of fetches, and also did cause and entice one I. S. to give in evidence that the indictment was good and true, by reason of which he was bound to Answer that at the next Assiles, and there he was accquitted: and whether the action was maintainable was the question, and Attoe argued that the action is maintainable, though it is not showed that the Bill of indictment was found: and he vouched a case, which was Hill. 10. jac. B. R. Rot. 921. between Whorewood and Cordery and his wife Defendants, which case and judgement was after affirmed in the Exchequer Chamber upon a writ of error, and the case was, that the Plaintiff declared that the Defendants intending to take away his good name, did charge him to have ravished Dorothy Cox, and maliciously exhibited a Bill of indictment, containing that the Plaintiff did feloniously ravish the said Dorothy their daughter, and did give this in evidence to the Grand jury who found Ignoramus: and yet it was adjudged that an action lies, and he cited a case the 19 jac. in B. R. Deny against Ridgy, where was— only an indictment preferred concerning the stealing of a horse, and no more, and yet an action lies. Hobert chief justice said, that if seemed to him that it is actionable, for this is as great a scandal to give this in evidence to the Grand jury, as to publish this upon an Alebench: and as the course of justice ought not to be stopped, so neither aught the good, name of man in things which concern his life be taken away without good cause, and I have heard that judgement was given another Term for the Plaintiff, but quere better of that.   

Hoes case.  
Ho's seized of land in fee, he devised that to his wife for life, the remainder of one parcel of that to Thomas his eldest son, the remainder of the other parcel to his youngest son in fee, and this devised was with proviso that the feme shall pay his legacies, and also his will was, that in case his wife died before the payment of his debts and legacies, that then his two sons shall pay them, and if it happen that either of them die before his debts and legacies paid, or before either of them do enter into his part, that thou the other shall have all the land in fee, and after the devisor died, and in the life of the mother the eldest son released to the youngest all his right, title, Claim, and demand to the land which was devised to him by his father, and after the wife died, and two points came in question in this case. First, whether this limitation is good. Secondly, whether the release is good, and it was argued by Richardson Sergeant, that this limitation of the Statute by way of devisee is good, and he vouched Dyer 330. Clarks case, and 4. Eliz. Goldley and Buckleys case, a man devised to his son and his heirs, provided that if his personal estate did not suffice to pay his debts and legacies, that then his lands shall be to another, and he vouched Brown and Pells case, which was adjudged in Banco Regis, the case was, that a man had two sons, William the eldest, and Thomas the youngest, and he devised his lands to Thomas his son and his heirs, provided that if Thomas died without issue living, that then William shall have the land, and it was resolved that this was good to William by way of executory devise, and in that case doubt was moved whether if Thomas suffer a recovery, whether this shall take away the estate of William; and it was holden by all the Court, except Doderidg, that it shall not, but all agreed that this devise upon the future contingency is good, and so he concluded, that if the youngest son die in the life of the Mother, and before the legacies are paid, the land shall remain to the Plaintiff, according to the intent of the devisor: but the other doubt is, when the Plaintiff did release all his right, and claim to the other, whether this release will extinguish this future possibility; and he held that it will not: and he said that he had seen the case of Lampet Coo. 10. and there the release of a possibility is penned as in our case, and if any word discharge this possibility, it is this word right, but if the resolution of that book had not been against him, he would have argued that this right was not sufficient to extinguish this future possibility, but that there ought to be a more apt and proper word, but he said he would not argue against books: but he said that which he would insist upon was the distinguishing of possibilities, for there are two manner of possibilities, the one is Common and ordinary, the other is more remote and foreign. And first, there is a possibility which is Common and necessary, and this depends upon an ordinary casualty, as a lease for life, the remainder to the right heirs of I. S. for it is apparent that the right heirs of I. S. may take by this, and such a possibility may be released: and a possibility which is remote and foreign is, as if a lease be made for life, the remainder to another during the life of the lessee for life, or a lease for life, the remainder to the Corporation of B. those remainders are void: but yet by possibility they may be good, for in the first case the Tenant for life may enter into religion: and in the latter case the King may make Corporations, and yet because such possibilities are not usual, the remainders are void: see Coo. 2. Chamleys case, where such a remote possibility may not be released, if a man give land to one which is married, and to another woman which is married, and to the heirs of their two bodies engendered, this is a good estate tail, for there is a common possibility that they may intermarry, but if the gift be to a man and to two women who are married, and to the heirs of their bodies engendered, they shall not have an estate tail executed, for it is a remote and foreign possibility, and an imbrodery of estates which the law will not allow, nor respect: see the Rector of Chedingtons' case, that such a possibility as in our case may not be released, for first here the mother ought to be dead before the Plaintiff shall have land. Secondly, legacies ought to be paid. Thirdly, Thomas ought to be dead, and till all these possibilities hap, the Plaintiff shall have nothing in the land, and for that it is a remote possibility which is not gone by the release, for as it is said, when a possibility shall be gone by a release, there ought to be a good foundation upon which the release may operate: secondly, the possibility which is released aught to be necessary and Common, but in our case it is not necessary that the son shall enjoy it in the life of his mother: and also the mother may in a short time pay the legacies, and then neither of the sons shall have the land: by which circumstances it is apparent, that this is not a Common or an ordinary possibility, but is a remote and foreign expectance, which shall not be gone by this release, and this differs from Lampets' case, for there was a possibility of a Chattel, which as it may easily be created, so it may easily be destroyed, but in our case it is a franktenement, which as that requires a greater ceremony in the creation, and for that it will require a greater matter to destroy, and to extinguish that; and it is said in Woods case cited in Shelleys case Coo. 1. that if a man covenant with A. that if I. S. enfeoffed him of the Manor of D. that then he will stand seized to the use of him and his heirs of the Manor of B. and the Covenantee died, and the said I. S. enfeoffed the Covenantor, in such case the heir shall be inward, and yet it is only a possibility which descends, which possibility of an use may not be discharged, or released, and yet in that case there was a possibility which is more Common, and ordinary then in our case; for there was a possibility that I. S. should make the feoffment, and so say a good foundation upon which the release may operate: and he put the case that I. shall let for so many years as I. S. shall name, if I. S. name it is good, and yet he held if I. S. release before the nomination that this release is merely void, because he had only a possibility: and as to Digs case Coo. 1. there a power of Revocation may be released, and good reason, for the Covenantor who released had the bird in his own hand, and for that it was no remote possibility: but there it is said, that if the power be limited to an estranger, there the stranger may not release: and he also agreed Albanies case, for there the power to release was upon the death of a man only, but in our case it is upon death, and other contingencies by which these remote possibilities shall not be released. Hoes case Coo. 5. there a release of all actions, and demands to the Bailee made this void; and in the case of Brown and Pell which was remembered before, it was the opinion of all the Court against Judge Doderidge, that where the devise was to the son in fee, and if he died without issue living, that then his eldest brother shall have that, if in this case the second son suffer a recovery, yet this had not destroyed the possibility which the eldest brother had to have the land, and if a common recovery which is matter of record, and the common assurance of the realm will not take away this possibility, a fortiori a release which is but matter of fact, and so he concluded and prayed judgement for the Plaintiff.  
Bawtry to the contrary, and he said, that if this remainder shall be good, than the inconvenience which the judges had always endeavoured to take way shall be on foot again, as in the case of Chamley, and Corbets of springing uses, for if it shall be lawful for a man to limit a fee upon a Collateral condition or limitation, than there shall be a perpetuity, and for this if any literal construction shall be made upon such conveyances, this will introduce dangerous events to inheritances, and for that he held that limitation to the Plaintiff to be merely void, for when the land is devised in fee, this devisee by this had an absolute estate in fee, and it shall be strange to give this to another though this be by way of devise, for though the will of every man shall be supplied by the intent of the devisor, yet his intent ought to stand with the rules of the law, and otherwise his intent shall revert, and for that he cited 29. H. 8. a man made two executors, provided that one of them shall not administer, here the intent did plainly appear, and yet because the intent is contrary to the power which the law gives to every executor, therefore it is void: and it is put for a bare rule in Corbets case, that such a conveyance which a man may not make in his life time, by act executed, he may not make by his Will, but a man may not make such a conveyance by act executed in his life time, for as it is said in Colthirsts case, if a man let for life, the remainder for life, upon condition that if the first lessee do such a thing, that then the land shall remain over to a stranger, this remainder is void: for when the land is given before, this second limitation is merely void: and also the case is put, that if a man give lands in fee upon condition, the remainder over this remainder is void; for the other had an estate in fee before, by which it is apparent, that when an estate is one time lawfully vested in any certain person, there no limitation may give that to a stranger, by any act executed in his life at the common law, and then it shall not be good by way of devise 28. H. 8. Dyer, a term was devised for years, the remainder over: and it was adjudged by Baldwin, and by Shelley, that the remainder in that case is void, for when the devisor had given his term, he may not limit this remainder over, though this be by way of devise: and this may be good law notwithstanding Lampets' case, for there the lease was devised and not the land, and for that reason may be a difference: and he vouched the case which was remembered by Richardson 29. H. 8. 33. and then as to the second point, he held that the release was good, admitting the first point to be against him, for if the eldest son had any right by this release, than this word right in the release will destroy and extinguish that, and this possibility is not remote and foreign, for the condition or limitation is annexed to the estate, and is not a subsequent condition which creates an estate, and this depends upon an ordinary casualty which is common to all men, and the payment of debts and of legacies, is incident and common to every executor; and as for Albanies' case Coo. 1. the case was, that a man had a power to revoke uses upon the death of a stranger without issue, and resolved that this power may be released, and yet his power depended upon two contingencies, death, and death without issue, and the case is also there put, if A. infeoff B. upon condition, that if B. Survive C. and then if A. and his heirs pay to B. 10. l. that then he shall enter, in this case there are many contingencies involved in one conveyance, and yet it is there said, that these contingencies may be released; and in Lampets' case Coo. 10. there are six reasons, wherefore such a contingency may be released, and our case is within all the reasons which are there mentioned, for the words in the release as have been remembered by my brother Richardson, are all one with our case, and the first reason is, because this is a Chattel, which as it may be easily created, so it may be easily destroyed, to this he gave answer, that this remainder of a Term was an interest to him who released: and so in our it is an interest of a remainder to the Plaintiff, and for that the release is good. Secondly, it is a maxim in Law, that every land may be charged one ways or another, and we are within this reason also, for if this estate be in the Plaintiff, than this may be released.  
Thirdly, the foundation of every act ought to be regarded, for Grants case there vouched destroys the possibility with a fine by reason of the original act, the fourth reason there remembered is, because that if the devisee had been dead, his Executor shall have the interest, the same reason in our case, if the Plaintiff had been dead before the remainder or the contingency hap, yet his heir shall have that. See Shelleys case; the fifth reason is, the legacy was in present, though this was to take effect in futuro, and so in our case the Will is in present, though the state is to take effect in futuro, and sixthly, it shall be against reason to establish such a perpetuity of a Chattel, and so in our case it shall be against reason to establish a perpetuity of a franktenement: and the release is very well penued, for it is of all his title, right and claim to the reversion, and remainder which the father devised to the Plaintiff, and so the release is not general, but this is a particular, and special release of that which was devised to him by his father, and Hoes case Coo. 5. is not like to our case, for first there the duty was altogether incertain, and secondly, the condition there did precede the duty: but in our case the condition is annexed to the estate, and so he concluded and prayed judgement in the case for the Defendant.   

Finis M. 20. Jac. The Bishop of Gloucester against Wood before.  
NOw the case between the Bishop of Gloucester and Wood was adjudged, Hobert and Winch being only present: and first it was resolved by them, that when the Bishop let parcel, as 20. acres for life, and after he lets the Manor itself to another rendering rend, in this case the rent issues out of the entire Manor, for if in debt for the rent, the lessor do declare upon a demise of the Manor omitting the reversion of this parcel, the declaration is evil: and upon non dimisit pleaded it shall be found against him. Secondly, this they held, that the Herriot reserved shall go with the reversion: and if this do not go with the reversion to the lessee of the Manor, yet the Plaintiff shall not have the Herriot, and then though the Defendant had not good title to the Herriot, yet if the property of the Herriot do not appertain to the Plaintiff, he shall not have a trover and conversion, for the Defendant had the first possession: and judgement was commanded to be entered for the Defendant, if no other cause was showed before next thursday.    

Hill. 20. Jac. C. P.  

Boulogne against William Gervase Administrator.  
BUlloigne brought an action of debt upon an obligation of 12. l. against William Gervase Administrator to I. S. and the Defendant pleaded, that the intestate died outlawed, and that the outlawry always continued in force, and upon this the Plaintiff did demur generally, and it was argued by Attoe for the Plaintiff, for the plea is not good, for this is a plea only by way of argument, that he shall not be charged for this debt, because he had not assets: and in this case, this outlawry ought to be given in evidence, upon nothing in his hands being pleaded; and it ought not to be pleaded in bar, for by possibility the outlawry may be reversed, and then the Administrator shall be charged if he had any goods, and he vouched a case in this Court, Trin. 27. Eliz. Rot. 2954. Worley against Bradwel and Dame Manners his wife, Administratrix to Sir Thomas Manners, and the feme pleaded outlawry in the intestate, and the Plaintiff demurred generally, and it was adjudged to be no plea; and note, that the record was brought into the Court, and read accordingly. Hitcham Sergeant to the contrary, the record in Manner's case was not well pleaded, for the Defendant only showed, that a Capias ad satisfaciendum issued against the Testator, and did not show any recovery, or judgement against him, and that was the reason of the judgement in that case, and the Plaintiff here ought to have demurred specially, as the case of 27. of Eliz. for otherwise he shall not have advantage of this plea: and the plea is only evil for the manner, for it is apparent that by the outlawry of the Testator all his goods are forfeit, and this is the reason of the book of 16. E. 4. 4. it is a good plea in an action of debt to plead an outlawry in the Plaintiff, and to demand judgement of the action, and not judgement of the writ, for the debt is forfeit to the King by the outlawry; Hobert, Hutton, and Winch, the precedent shown by Attoe is not answered, for though the pleading of the outlawry is without showing of a recovery, and judgement, yet the outlawry is good till it is reversed; and Hutton said, that in some cases an Executor or Administrator had goods, though the Testator died outlawed, as if the Testator let for life rendering rend, and the rent is behind, and after the Testator is outlawed, and dies, this shall not be forfeit, but his Executors shall have the rent, and if a man make a feoffment upon condition, that the feoffor pay 100 l. to the feoffee, and his heirs, or Executors, and the feoffee is outlawed, and the feoffor pay the money to his Executors as he may well, the Executors, and not the King shall have that, also if the Testator is outlawed, and he devise his land to his Executors to be sold, these moneys shall not be forfeit, and they shall agree that the plea was not good notwithstanding the general demurrer, for he who will bar another by an argumentative plea, his plea ought to be infallible to all intents and purposes, and so it is not here, for the Executors and the Administrators may be charged by the having of goods, though the Testator was outlawed, and for that the plea of the Defendant is not good in substance; and the general demurrer is good, by Hobert, and by him if we suffer this plea, than the Defendant will keep the goods, and not reverse the outlawry, nor yet satisfy the King; also if he had not goods, the Defendant may plead plene Administravit, or nothing in his hands, and give this outlawry in evidence. See 8. E. 4. 6. 3. H. 6. 32. 39 H. 6. 37. by the opinion of Prisot, and also see the case in E. 4. 5. a case to this purpose; and also note well that it was said concerning the case of Manners, that a writ of error was brought of that afterwards; and that the case remains till this day undetermined.   

Buckley against Simonds Ent. 18. Jac. Rot. 2120.  
NOw at this day the case of Buckley and Simonds was argued by justice Hutton, and by Winch; and the case was briefly this, Anne Buckley Administrator to Andrew Buckley her Husband was Plaintiff in a quare Imp. against John Simonds, John Prior, and Robert Pierce, Alias Price for disturbing her to present to the Church of D. and shown that Andrew Buckley Grandfather of the Husband of the Plaintiff, was seized of the said advowson in gross, and presented one I. S. and he died, after whose death the advowson descended to Richard Buckley, and that the Church became void, and that one Richard Williams usurped upon the said Richard Buckley then being within age, and that Richard Buckley also died, and by his death the said advowson descended to Andrew Buckley as brother and as heir to Richard, and that the Church became void, and before the presentment by Andrew, and within 6. months Andrew died, and that the Administration of the goods of Andrew were committed to the Plaintiff, and that she presented within 6. months, and the Defendants disturbed her, and the Defendants pleaded in bar, and confessed the seisin of the Grandfather as is alleged in the declaration, and they said, that the said Andrew Buckley 14. Eliz. by his Indenture made between the said Andrew Buckley on the one part, and John Preston of the other part, by which the said Andrew Buckley by the same Indenture covenanted with Preston in consideration of a marriage to be had between John Buckley and Elizabeth Preston, daughter of John Preston, he covenanted with him and his heirs, that immediately after he death of him and of his wife, the said advowson (inter alia) shall be to the said John Buckley his son, and to Elizabeth Preston, and to the heirs of John, and so the Defendant claimed by virtue of a lease for 1000 years made by john Buckley, and the Plaintiff demanded Dyer of the Indenture which was read to this effect, that Andrew Buckley by the said Indenture covenanted with Preston, that in consideration of a marriage between his son and the daughter of Preston, that he will grant a rend charge of 6. l. 13. s. out of his land at Weymouth, and at Melcombe Regis payable at 4. usual feasts; and he Covenanted for him and his heirs, that he would convey the land in Melcombe Regis and Wike Regis to such persons as Preston should appoint, provided that the said Andrew Buckley and his wife may enjoy that during their lives without impeachment of waste, and covenanted that immediately after their deaths, the lands shall immediately remain, come, and be to the said john Buckley, and Elizabeth his wife: and that the advowson of Bradway shall remain, come, and be to the said john Buckley and Elizabeth his wife, and upon all the matter the question was, whether by this last covenant, an use will arise of the advowson in Bradway to john Buckley, for if an use is raised to him, than this lease made by him is good, and by consequence the title of the Defendants is good to present to this advowson, and if not, than the fee always remained in Andrew Buckley, the Grandfather, and by devise descends did come to Andrew Buckley the Husband of the Plaintiff, and th●n the quare Impedit is maintainable.  
And Hutton began his argument, he argued that no use will arise to john Buckley by this Indenture, for when a man will raise an use by way of covenant, there are 4. necessary things which ought to concur. First is a sufficient consideration as of blood, or marriage, or other Collateral considerations, as if I covenant with you, that when you infeoff me of certain land, I will stand seized to the use of you and your heirs, this is good, but if the consideration be for money, than this aught to be enrolled, or otherwise no use will arise, the second point is, there ought to be a deed to testify this agreement, for otherwise no use will arise, as was resolved 38. Eliz. in Collard and Collards case. Thirdly, he who covenants ought to be seized of the la●d at the time of the covenant, as was resolved 37. Eliz. in yelverton's case; a man covenanted to stand seized to the use of his son of such lands as he should afterwards purchase, and it was holden void, because he was not seized at the time of the covenant: and lastly, the uses must agree with the rules of the Common law, 
Cook 1.  and he cited Chudleys' case, a man covenanted to stand seized to the use of one for years, the remainder to the right heirs of I. S. this remainder is void, though this is by way of covenant, and use, for the freehold may not be in abeyance: and so if I will at this day bargain and sell my lands in fee, they shall not pass without the word heirs, for it was not the intention of the said Statute, to raise uses in such manor contrary to the rules of the Common law or uses which are uncertain, and in our case the intent was, that no present use shall arise, for out of the same land is granted a rend charge to john Buckley and Eliz. his wife, by which it appears plainly, that it was not their intent that any present use should arise by the delivery of the indenture: and if the use do not arise presently upon the delivery of the Indenture, it shall never arise at all; also the intent appears, for it is, that the land shall remain free from incumberances, and this sounds only in covenant, and for this reason the covenants shall be of the same nature, and lastly the covenant is, that the land shall remain and be, and this is altogether incertain, and for this no use will arise, because this fails of words, as if I covenant to leave my lan● to my son after my death, this will not raise an use to my son, no more than if I covenant with the friends of my wife, that after my death she shall have my goods, this will not make my wife to be Executor: and he vouched 21 H. 7. 17. 34. H. 8. 59 the Lord Borroughs case Dyer 355. 166. 324. and so be concluded, that judgement ought to be given for the Plaintiff.  
justice Winch argued to the same purpose, and he said the first part of the covenant contains, that there shall be a marriage before such a day if the parties shall agree, and the second part is a covenant, that the feme shall have 6. l. 13. s. for her jointure, and if this covenant executed an use of the land presently, than this destroys the jointure, which was not the intention of the parties. Thirdly, there is another covenant to convey Copyhold land, and if this covenant do raise an use, than it will follow that john Buckley shall have the land, though the marriage do take effect, and besides the covenant doth create an use presently, or not at all, and then when this use is to be raised by this covenant which contains in that nothing but future and Executory matter, this will not create a present use: and he cited the books which were vouched at the bar, and by Hutton, and so he concluded, that this covenant will not raise an use presently to john Buckley, and that judgement ought to be given for the Plaintiff.  
And at another day the case was argued by Hobert chief justice for the Plaintiff, and that no use will arise by this covenant, and he said, if I will covenant to make assurance of my land to my son, or to a stranger, this covenant is merely nugatory, and will not raise an use, but on the contrary, if I will covenant to stand seized to the use of my son, though there is also a covenant to make further assurance, yet this will raise a present use, for the covenant is declaratory, and not obligatory, and so is Dyer 235. and there was no word to assure the land, or to stand seized to uses, but only that the land shall come, remain, and be in tail, or in fee, and there was no word to assure the land: and this case is agreeable to the case of 21. H. 7. 18. by Reed, that no use will arise; and the reason is plain, because the covenantor had election, in which manner he shall have that, whether by descent, or in any other manner, for if I covenant that my land shall descend to my son after my death, no use will arise by this covenant, and he put the case in Chudleys' case, that if a man covenant that after his death his son shall have his land in tall, it is said that the son shall have an estate executed by the Statute of 27. H. 8. and the covenantor shall have an estate for life, and so the law makes in that case fractions of estates, as the case of the Lord Seymor Dyer 96. seems to accord with this, and besides those two books he said he could not find any book which will warrant that, and for that reason he held those two books to be no law, for if I Covenant, that my son shall have my land after my death, this will not raise an estate to me by implication for life, and an estate to my son, and so by such means to change my estate in fee, for an estate for life without more words, for the word covenant in his proper and native signification is only obligatory, and yet it had been always conceived sufficient to raise an use to him who is not party to that, as if I covenant with a stranger, that I will stand seized of my land to the use of my son, this will raise an use to my son, and yet neither my son, nor the covenanty may have an action of covenant, but an use will very well arise to my son, as if a man bargain, and sell his land in consideration of 100 l. paid by I. S. though in this case the consideration ariseth from a stronger; yet that will pass the use to the bargainee: and in case of covenant, it is not this word covenant only which creates the use, but it is rather the agreement of the parties which is testified by the covenant, for if sufficient agreement appears, there will not need this word covenant, as if I will agree and declare to stand seized to the use of my son, by which it appears that the word covenant is only declarative of the intentions of the parties; and then in the principal case the covenant is, not that the son shall have the land, but that the land shall come, remain, and be to him: and those words are incertain as 21. H. 7. redert, come, or descent: and for that reason it is all one with the law of the same case, and then void to raise any use for the incertainly: and then when Andrew Buckley covenants, that his son shall have his lands and no words to enforce his intention: and for that reason the intention shall be liable to an action of covenant, and not to change his estate which he had in fee, for an estate for life by this covenant, but if he had expressly covenanted that in consideration of marriage of his son, that he would hold his land for life, and after this should be to his son, this will change the estate which was in fee, for an estate for life, but in our case the covenant being general and left to the indifferent construction of the law, the word covenant shall be taken in his proper and native signification, and this is obligatory: and so he concluded, that this covenant being at the first to grant a rent, and was executory, and the last part of that is executory for assurance: and the limitation of the estate to the son being entangled between these two Covenants, this shall be of the same nature; and by consequence the covenant is obligatory only, and will raise no use to the son: and so he concluded, that judgement shall be given for the Plaintiff, and it was commanded to be entered accordingly.   

Sparrow against Sowgate.  
IN debt by Sparrow against Sowgate, who declared that the Defendant became Bail for one Richard Sowgate in Banco Regis, against whom the Plaintiff had brought a Bill of debt of 77. l. and now the Defendant bound himself in a Recognizance of 77. l. upon which the action is now brought, that in case judgement should be given against the said Richard Sowgate, that he shall satisfy the said judgement, or render his body to prison, for in this case no part was impossible, for after the judgement the principal may render himself, in B. R. to the Marshal for the redemption of his surety, and that is the Common course there as he said, but he agreed the case to be otherwise, if a scire facias issue out of the King's Bench against the Bail, for there the death of the principal is a good plea: for a scire facias doth not lie there till default is assigned in the principal, in his not coming upon the capias ad satisfaciendum, which may not be when he is dead. Note that, but yet before any capias, it is clear he may have an action of debt.  
Sir Robert Hitcham Sergeant of the King to the contrary, and he alleged this to be the constant course in the King's Bench, that the Bail is never chargeable till there is default assigned in the principal upon the recorn of the Capias ad satisfaciendum, which may not be here, for the principal is dead; and he agreed the case of the other side, that when a man is to do two things though the one is become impossible, yet he ought to perform the other: but when it is in the election of one to make either the one or the other, than it is otherwise; see Dyer 262. and so he concluded for the Defendant. Hobert chief justice said, that it is inconvenient that the Plaintiff shall be forced to sue his Capias ad satisfaciendum against the party, before he have execution against the Bail, for perchance he will sue a fieri facias or an elegit against him, and that the Corpse of the party will not satisfy him: and Browlow Prothonotary said, that it had been adjudged in this Court, that such plea is not good: Winch, the course of the King's Bench is, that default shall be assigned upon the return of the principal before the Bail shall be charged: and though the Plaintiff refuse to take his body after he had made his election to take his fieri facias or elegit, he shall never more resort to the Bail, which was granted by Hobert and Hutton, as to that last point: and it was holden by all the Court, that if the principal render his body, though the Plaintiff refuse to take that, yet that is a discharge of the Bail, and also it was agreed by Hutton, Hobert, and by Winch; that if the course of the King's Bench be such, that the Bail shall not be forfeit till there is a default assigned in the principal, the same course also shall be followed here: and per Curiam if the course of the King's Bench be such, that such Capias is necessary to be awarded, that then a convenient time shall be allowed for the principal to render his body gratis, and if the principal do die before such time the Bail is discharged; but it was said by Winch, if he die before convenient time, and the Capias is awarded, that such death shall not discharge the Bail, note that jones justice said, that he thought in this case, that it is necessary that the principal render himself gratis, for when he is let to Bail, the law supposeth him to be always in custody, and to be forth coming: and for that reason he ought to appear within a convenient time when the Plaintiff demands him, which Hobert also granted, but he said that there needs not any demand, if the course of the King's Bench is contrary: and jones justice said, that he had a judgement given in the King's Bench, that the bail is forfeit after default is assigned in the principal, and Winch said, that the course of the King's Bench is, that default ought to be assigned in the principal, upon the return of the Capias before the Bail shall be charged: and it was agreed, if that course be there, it shall be observed here also; but it was said by Hutton, that there ought to be a scire facias awarded, and returned against the Bail, before the Bail is forfeit; and it was adjourned until another time that they might see precedents.   

Cyprian Web against Barlow.  
CYprian Web brought a replevin against Barlow, and the Defendant avowed as lessee for life of the Manor of Froston, to which the Plaintiff is a Copiholder of a Copyhold of the same Manor; and that 15. jaco. in mense May he girdled and cut a tree in the middle upon his Copyhold, and that the steward Anno Supradicto charged the homage to find this, by which he had forfeit his Copyhold, and the Defendant being Lord of the Manor distrained his beasts damage pheasant, and the Plaintiff said, that the custom of the Manor is, that every Copiholder may lap and girdle absque hoc that he cut the tree, and upon that the Defendant demurred, and Attoe argued for the Plaintiff in the replevin, that this is no cause to forfeit the Copyhold, for though the steward did charge the homage to find that, yet it doth not appear, that he gave any proof of that. And secondly, the forfeiture is alleged to be in May; and the Court was holden in April before, which was impossible, which the Court granted as to that last point, and for that the Plaintiff had judgement.    

East. 21. Jac. C. P.  

Thorntons' case in a Prohibition.  
THornton prayed a prohibition to the Arches, and the case was such, one had a recovery in a quare Impedit, and he had a writ to the Bishop against Thornton, upon which A. his Clerk was admitted &c. and after the recoverer died, and Thornton supposing his heir to be in the ward of the King, and that the said A took another benefice without sufficient qualification, by which the Church was void by Session, and he attained a presentation of the King, and he was admitted &c. by the Lord keeper being within the Diocese of Lincoln; and A. sued him in the spiritual Court, and Thornton prayed a Prohibition, and it was granted per Totam Curiam, for without question there ought nothing to be questioned in the spiritual Court, after the induction of the party, and whether it is a Session or no, doth properly belong to the Common Law: and jones cited a judgement in William's case according, note that by the constitution of Otho and Othobon; that institution and induction is voidable in the spiritual Court, if no Prohibition be prayed.   

Sheldon against Bret.  
IN a quare Impedit, between one Sheldon and Bret, Hutton said, that we in Chancery have adjudged, that the grant of the next avoidance for money when the Parson was sick in his bed ready to die is Simony, for the Statute is, if the contract be made directly, or indirectly by any way or means.   

Fleming against Pitman.  
FLeming brought an action of Covenant against Pitman, and he declared upon an indenture, and that the Defendant Covenanted to serve him honestly and faithfully, as an apprentice in the mystery of Drapery for seven years, and that he had defrauded him of his goods &c. the Defendant pleaded the Statute of the 5. of Eliz. that none shall be an apprentice to any of the most worthy trades, (among which Drapery is one,) except his father have freehold, to the value of 40. s. per annum to be certified to the place in which he is to be apprentice, by three of the justices of the peace of the same County, and this certificate to be enrolled in the Town book; and he pleaded that no such certificate was made, and he pleaded the branch of the Statute of the 5. of Eliz. which made every retainer contrary to the form of this Statute to be void; and the Plaintiff replied that he had 40. s. per annum; and the Defendant rejoined, that he had not 40. s. per annum; upon that the Plaintiff demurred, because the Defendant said in his rejoinder, that he had not 40. s. per annum, and in his plea he pleaded no such certificate; and the justices etc. Hutton, Hobert, and jones said, that the retainer is good, though there is not any such certificate, or inrolment, if re vera the father had 40. s. per annum, for the intent of the Statute is, that sufficient men's sons should be apprentices, which is observed if the father had 40. s. per annum, and Winch citys Englefields case upon the Statut 28. Eliz. cap. 3. that every one which claims by a conveyance from a Traitor, shall bring in his conveyance to the Chequ●e to be enrolled; and yet if it be brought in, though it be not enrolled, the intention of the Statute is fulfilled, and jones cited a case in Banco Regis 18. Eliz. Robin's case, upon the Statute of 21. H. 8. of Pluralities, where it was adjudged, that a dispensation is good, though it is not enrolled; and yet there are as strong words of inrolment as may be.  
And after in Trinity term 21. jac. the same case was argued again by Attoe for the Plaintiff, and by Hitcham for the Defendant, and per totam Curiam at that time it was agreed clearly, that this is a departure; but for the second point, whether the pleading of the certificate were good or no, that was the doubt; and justice Hutton thought there ought to be a certificate precede the indenture, or otherwise that shall be void; but Hobert, as to that would not give his opinion, but he seemed as Hutton, and Hobert chief justice took exception to the laying of the action, for he thought the Statute of the 5. of Eliz. shall not be intended so strong against infants, as to make Collateral covenants to be good: but Attoe moved that this covenant is incident to the retainer to serve truly and faithfully, and yet if it were a Collateral covenant, yet he had lost the advantage of that by his pleading, as in debt upon an obligation against an infant, if he plead non est factum, he shall not have advantage of his Infancy, to which Hobert also agreed; but he said, this is not like to our case, for here it appears by the Count of the Plaintiff, that the Infant was but of the age of 15. years at the time of the retainer, of which the Court ought to take notice: and here the Infant was not bound by this Covenant at the Common Law, and no Collateral covenant shall be maintainable upon the Statute, for this being against an Infant, it shall be taken strictly, as a custom that one shall infeoff, yet that custom will not warrant him to lease and release: and as to that which had been said, that it is incident to every retainer to serve truly and faithfully, that is very true, and an action upon the case lies upon a covenant in law, but not upon the covenant in fact, he ought to have Collateral security, which was also confessed by Hutton, and he said moreover, that the retainer is for the benefit of the Infant, that he learn his Trade, but the covenant here is for his disadvantage, and for the advantage of his Mr. and for that reason it is void, as if an Infant had covenanted to pay 10. l. for the learning of his Trade when his time was up. Winch justice contrary to that last point, for he thought the covenant to be incident to the retainer, and good though he is an Infant, as an Infant who levyes a fine, is also enabled to make an indenture to lead the uses; and note that Hutton, and Hobert said also, that the bar of the Defendant is good, viz. the pleading of the want of the certificate, and for that reason the replication of the Plaintiff, that he had 40. s. per annum is evil, and though the rejoinder of the Defendant is evil, and a departure; yet it appears that the Plaintiff had not any cause of action: and for the covenant they said, that they two are strong in their opinions; and upon that Winch agreed also, that judgement shall be given against the Plaintiff: and Attoe moved the Court, what remedy the Plaintiff may have, for the loss is 500 l. and per totam ●uriam he shall not have an action of account, for that lies not against an Infant being an apprentice, Coo. 11. 89. and the Court said, that as to the retainer, and the damage, it is no more than if an Infant had been retained by word, and there is not any remedy, but an action upon the case, and Attoe said, that they had thought to have brought an action of Trover and conversion, and he doubted whether that will lie, and after the Court said to him, you had best to bring an action upon your case, and it was afterwards ordered by Arbitrement.   

Oxford and his wife against Goldington.  
IN a Prohibition for Oxford and his wife against Goldington to the Court of Audience, for they are sued there for a legacy devised to the Plaintiff, by one George Cotton, and this is as they are Administrators to one William Cotton, who was executor of the said George: for that he libelled against the Plaintiffs in the Prohibition in the Court of Audience, and had showed that they had goods of the first Testator, and a Prohibition was awarded; and Finch moved for a consultation, and he said, if by the spiritual Law an Executor wastes the goods of the Testator, and after dies intestate, that in this case his Administrator shall answer, that viz. the debts and the legacies of the first Testator: and Doctor Pope who was present in the Court said, that the Law was so, and so he said the Common Law was, that is the Statute of 31. E. 3. which gives the same remedy against an Administrator as against an Executor, if the Executor die intestate, for it is the interest of the first Testator, upon which the Administrator shall be committed to the next of the Kin: and if none will take that upon them, than the Administration of the Executor ought: and aught to take several letters of Administration for that: and if no letters of administration is taken, and yet he meet with the goods, he shall be charged as an Executor of his own wrong, and if no goods be of the first Testators, than it is no reason that he should be charged: and the Statute of 31. E. 3. gives no remedy, (per Curiam) but against the immediate Administrator; and if the case be as you have alleged, than the Legatee or the debtee is at no damage, or mischief, for he may sue the Administrator of the first Testator if he had goods, or any other who had goods as Executor of his own wrong, and if none will take letters, nor yet meddle with the goods, than the debtee or the Legatee may take letters of Administration himself, and so no consultation was awarded, but the Prohibition stood.   

Avis against Gennie and others.  
ONe Avis brought an action of Trespass, of his close broken against Gennie and two others: and the writ was general, but in the the declaration he affirmed that to be in Airing half a Rood, and in digging another half Rood, and after in his new assignment shown that to be a Sellion containing by estimation and acre, and it was found for the Plaintiff, and damages assessed to 20. s. and now it was moved in arrest of judgement by Attoe, because the new assignment is more large than the declaration, and the opinion of the Court was, that because this was but an action of Trespass where damages only is to be recovered, that this is very good, but otherwise it is, perthance if that had been in an ejectione firm.   

Brigs case.  
BRigs brought a Prohibition against another, and alleged that the Dean and Chapter of D. was seized of the Manor, and the Defendant being Vicar, sued to have Tithe in Court Christian, and shown that time beyond memory etc. they had held that discharged of Tithes for them and their Tenants, and that they let that to the Plaintiff, and it was moved by Hendon Sergeant, that the Dean and the Chapter are a body Politic, and temporal, which are not capable of this prescription, in non decimando Coo. 2. the Bishop of Winchester's case, Hobert said, that the Dean and Chapter are a body spiritual, and are annexed to the Bishop throughout all England, and if the Bishop is capable of that as it is plain he is, than the Dean and Chapter is also capable of that, which was granted by Hutton: but Winch doubted, for Winch said he may be a lay man, and for that the Plaintiff ought to aver that he is a spiritual person; Hutton confessed that the Dean may be a lay man, as was the Dean of Durham by special licence, and dispensation of a King; but that is rare, and a special case, and is not common, and general, and therefore not to be brought as an example, which was also granted by Hobert chief justice, and upon that, day was given over to the Defendant to show cause wherefore the Prohibition shall not be granted.   

Anne Summers' case in Dower.  
A Writ of Dower was brought by Anne Summers against the Tenant of the land, and he pleaded a fine with proclamations levied by her husband, 14. jac. in which year the husband died, and the wife had not claimed within the Statute of the 4. H. 7. cap. 24. the demandant replied, that 15. jac. she brought a writ of Dower against the now Tenants, and against two others, and that the writ abated by the death of the two others, and that she brought a writ by journeys accounts, the Tenant replied, that the others were not Tenants, but one Sir john Web, and it was moved that this rejoinder was evil, for they confessed that they themselves are Tenants, by which the writ is good against them at the least; Hobert, if she brought a writ of Dower against one who is not Tenant, that is not any claim within the Statute; but if she brought a Dower against 4. who are Tenants, and two die; and she bring a writ against the others by journeys accounts, this is a good claim within the Statute, though the second writ was after the time limited, but quere here if the two who died, were not Tenants.    

Trin. 21. jac. C. P.  

Harvey against the Hundred of Chelsam.  
HArvey brought an action upon the Statute of Winchester; of Hue and cry against the Hundred of Chelsam; and it is found for the Plaintiff, and a writ of error was brought, and all the record was certified; and now the Plaintiff prayed two things may be amended, the first is the title of the action, for upon the roll it is an action upon the case, it should be an action upon the Statute, but it was said by Hobert, that it shall not be amended, for the Statue of the 18th. of Eliz. did not give amendments upon indictments, or upon popular actions, or actions upon penal Statutes; and cited a judgement in Doctor Husses case Coo. 9 71. which was reversed in Banco Regis, upon default in pleading being upon a penal Statute, and so in Mich. Term last Judictari for Indictari, and adjudged that it shall not be amended: and the second point was, upon the venire facias where was one Gregory returned, as appears by the names of the jury; but the Clerk of the Assize returned one George, and it was entered upon the roll and certified in the record to the King's Bench; and per totam Curiam there needs no amendment, for that name of George where it should be Gregory, being in the tales de circumstantibus, and not in the principal panel, and it was also by consent of the parties; and as to the first point, all the Court agreed with Hobert; and for the second point Hobert said, that if that variance had been material, it should not be amended, for we will not make a new certificate, for the Court of the King's Bench may choose to credit the first or the second certificate, and so we submit our judgements to the censure and pleasure of another Court, which we will not do: and in the great case of Fulger 18. jac. where we made such a new certificate, though it was adjudged according to our opinion; yet they would not credit our last certificate; and therefore we will not make a certificate again; which note well.   

Hasset against Hanson.  
HAsset brought an ejectione firm against Hanson, and upon a general issue, and a special verdict the case was this, that one Woodhouse was lessee for years of the King of a Manor, and I. S. was a Copiholder of a Tenement of inheritance, and the Coppiholder bargained, and sold his Copyhold land in such a Town to the lessee of the Manor, and this was by indenture, and the indenture was to this effect, that he bargained and sold all his lands and Tenements, as well Copyholds, as other land bought of john Culpepper in such a Town: and it was found that the lessee of the Manor entered in the Copyhold, and occupied, and after that the said I. S. died, after whose death W. S. his heir was admitted as heir of I. S. upon the presentment of the homage, that I. S. died seized, and that the said W. is his heir; and that at the same Court W. S. Surrendered to the use of the Plaintiff, and he was admitted, and it was argued by Richardson for the Plaintiff, and by Attoe for the Defendant.  
And these ensuing points were agreed by the justices, (S.) by Hobert, Winch, Hutton, and jones; and first it was said by Hobert, that though a Coppiholder may not convey his Copyhold to a stranger without Surrender and admittance; yet he may grant his estate to the Lord of the Manor out of the Court by bargain and sale, for the custom is not between the Lord and his Tenants, but between themselves only. Secondly, Winch said, that the admittance of the Lord, viz. the lessee of the Manor amounts to a grant to him, who had a title, but it is otherwise, if it is to him who was in by wrong, as by disseissin Coo 4. 22.. which was granted by all the Court. Thirdly, jones justice said, that the bargain is void, for it is of all lands, and Tenements bought of john Culpepper, and it was not found by verdict, nor yet averred by the party, that the land was bought of Culpepper, which Hobert and Hutton granted: and Hutton cited 2. E. 4. 29. but Winch to the contrary, as to that point, but they all agreed that the Plaintiff shall have judgement, and accordingly so it was done.    

Mich. 21. Jac. C. P.  

M. 21. jac. in C. P. Pleadal against Gosmore.  
PLeadal, an Attorney of the Common pleas, brought an action of trespass against Gosmore, and he declared of the taking of a Mare Colt in May, and of the retainer till the first of july, and that the Defendant held him in Compedibus, Anglice in fetters, diversis vicibus & temporibus, by which she Colt was much the worse: and the Defendant pleaded, that the Countess of Hartford was Tenant for life, of the Manor of Sherstone, within which the taking of the Colt is supposed to be, and that the Lords of the Manor time before memory etc. had used to have estrays, and used to seize them by their Bailiffs, and to proclaim them according to the Law of the land; and that the said Mare Colt came within the Manor such a day, and the Defendant as Bailiff to the said Countess seized that as an astray, and made proclamation according to the Law: and when the Mare Colt was so fierce and wild, that he could not came that, nor keep that out of the lands of his neighbours, he Fettered her, as to him bene licuit, and he detained her till the first of july, at which day the Plaintiff came to him and told him, that this was his Mare Colt, upon which the Defendant delivered her, which is the same Trespass etc. and upon that the Plaintiff demurred: and Attoe argued, that the plea was not good for matter of Law, for a man may not Fetter an estray Colt, as appears in the like case 27. Assizes: and the reason is, because satisfaction shall be given for his damages which he made to the Defendant: and he cited a case, adjudged in that point 8. jac. Trin. between Harvey and Blacklock in this Court, where the Defendant pleaded such plea in all points, as here as to the Fettering, for the Defendant fettered the horse of the Plaintiff; because he was so fierce and so wild to one of his own horses, and so continued till he delivered him to the Plaintiff: and because the horse died within the year the Plaintiff brought his action, and upon this plea pleaded by the Defendant, it was demurred in law; and judgement was given for him, for Cook who was then chief justice said, that a horse may be of 40. or 100 l. price, and it shall be intolerable to allow such Nuisance; and secondly, he had not made proclamation, and so trespass lies against, and so in our case. Harris Sergeant to the contrary; for when the Lord of a Manor takes an estate, he had some kind of property before the year is expired: and for that reason he may detain the estray against the owner, till amends is made to him 44. E. 3. 14. 29. E. 3. 6. by Knevet 20. H. 7. by Vavasor, and Frewick: and if he had property against the owner himself, he may use that with moderation to make some benefit of that; especially in case of necessity, as 22. Assize 5. 6. a man may justify the beating another if he be in a rage, and 6. E. 4. 8. one may justify the felling of a tree in the ground of another in case of necessity; and here is no other way to restrain this Savage Colt, and so the justification is good, but in this case it was resolved by Hobert, Winch and Hutton, jones being in the Chancery. First, when a beast comes within the Manor of another Lord, this is a trespass, but after the seizure for an estray, it is a possession of the estray in the Lord, and the beginning of property; as Hutton used the term, so that he may have an action of trespass against any stranger, which takes that out of his possession: and if he estray into the land of another, he may him retake.  
Secondly, it was resolved, that if the Lord make not proclamation in convenient time, that this possession became tortuous, for the law necessarily imposeth it, upon the Lord of the Manor, that he make Proclamation, because that otherwise the owner may not come to the knowledge of him. Thirdly, that the estray within the year is, as a pledge in the Custody of the law, till amends be made to the Lord: and for that reason the Lord may not work him no more, than he can work a distress. Fourthly, it was resolved that if the estray go into the Manor of another Lord, and the last Lord claims that as an estray, the first Lord had lost that, but not before claim. Fifthly, Hutton and Winch agree, that he might Fetter the Colt being so fierce, and wild, for he is answerable for the trespass and wrong which he makes in the land of his neighbours; and also to the owner if he lose him, and therefore it is unreasonable, that he may not keep him safe for his indemnity: and that is not like to the case 27. Assize, which was urged of the other side, also they said, fettering is the usual way in the Country to restrain wild horses: and therefore if it be in an ordinary manner, as he Fetters his own, there is not any remedy against the Defendant. Hobert chief justice, was against that last point, for the Lord may not hold him in arcta custodia as a prisoner; because he had rather the keeping of an estray, the the property, and for that if the estray go into the land of another Lord, the first may not take him again, if the other claims him as an estray, for the possession was, rather in regard of his Manor, then in regard of himself, and therefore he shall not answer for the wrong, which he doth in the lands of others, for the possession is in regard of his Manor: and his Fettering is an abuse, and he may not neither use nor abuse an estray, and he said over, that the Defendant had not well pleaded for another reason, because he had not showed, that he proclaimed him in the next market Town within convenient time, which convenient time ought to be adjudged by the Court: and he said, the Lord may not keep him else where within the year then within the Manor: Winch justice said, the Defendant ought to proclaim an estray, ut supra, if the year be past, for by that he gains an absolute property; but here where no property is devested, he needs not to proclaim him within the year: and Hobert commanded this case to be moved again: see the last case but one in the book.  
Ruled that after imparlance in debt upon an obligation, the Defendant shall be admitted to plead always ready, though the 13. Eliz. in Dyer was urged to the contrary.    

Hill. 21. Jac. C. P.  

Hillary Term in 21 year jac. C. P. Trehern against Claybrook.  
TRehern brought an action of debt against Claybrook upon a lease for years, and upon nihil debet pleaded, and a special verdict, the case was to this effect; the Grandfather of the Plaintiff was seized of lands in Southwark, and he made a lease for years of that to the Defendant at London rendering 45. l. rent, and after he devised the reversion to the Plaintiff in fee, and in his will he set forth that his intent was, that his Executors shall have the reversion during the Term, upon condition that they enter into bond to pay 34. l. per annum at 4. usual Feasts during the Term; and he further devised, that this bond shall be made by the advice of his overseers, and he limited all this to be done within 6. months after his decease, and if his Executors refuse, his will was, that his overseers shall take the profits upon the same condition; and appointed that both obligations be made to the Plaintiff, and the devisor died, and the Executors within 3. months shown the will to the overseers, but no obligation was offered to be made within the 6. months, and the Plaintiff required the Executors to enter into the obligation, and to pay the rent, which was not done, and he claimed the reversion, and brought his action afterwards in London where the lease was made, and not in Southwark where the land did lie, and this case was twice argued by Council at the bar; and now it was argued by the 3. justices. Hobert being absent.  
And jones justice moved a point, which was not moved at the bar viz. that the Plaintiff is devisee of the reversion, and so is privy in estate only, and for that reason the action ought to be brought in Southwark where the land lies: and not in London where the contract was made; but the lessor himself had liberty to bring the action where he pleased, in regard of the privity of estate and contract: and so was it adjudged in the King's Bench, between Glover and Humble: and here though this be after verdict, and no exception taken by the Defendant; yet we as judges of the case may take notice of that ex officio, and give judgement against the Plaintiff: and the 3. justices agreed, that here is a condition, by which the reversion is vested in them, but it is in the Plaintiff till performance of that, which not being performed by them within the time limited, the Plaintiff ought to have the rent: and though the Will is, that it shall be with the advice of the overseers, and no advice is found; yet that is at the peril of the Executors, who ought to give notice of that to the overseers, being to their advantage: and for that see 21. H. 6. 67. 46. E. 3. 5. 18. E. 3. 27. 11. H. 4. 13. which cases were cited by Sergeant Harris at the bar; and they agreed, that the overseers shall not have the reversion, for though it was devised to them; yet that was upon the refusal of the Executors, and no refusal is found, but only a non performance of the condition: and also the devise is tied to them upon condition, to do that within 6. months, which ought to be performed in convenient time at the least, though it be in case of a Will: and so they concluded, that the Plaintiff had right as to the matter in Law; but that judgement shall be given against him upon the matter supra; and it was resolved, that this was not aided by any Statute of jeofailes, for this is a mistrial: but another point was moved, whether the Plaintiff shall pay costs, within the Statute of the 23. H. 8 or 4. jac. the words of the Statute are, if the Plaintiff be nonsuite, or verdict given against him upon a lawful trial; but here it was resolved, that he should not pay costs, for no verdict is found against the Plaintiff; but rather for him: and judgement is given against him, because he mistook his action, and in Bishop's case Coo. 5. judgement was given against the Plaintiff, upon a material variance in the verdict, and no costs was given: and it is not only out of the letter of the Statute, but also out of the intent, for it may not be imagined, that the Plaintiff had stirred an unlawful suit, when the matter which he declares is found for him: and that Statute is not taken by equity, as Hutton said, for it hath been agreed here, that if Executors are nonsuite, or judgement given against them upon a verdict, they shall not pay costs, within the Statute of the 23. H. 8. or 4. jac. and so is the constant practice, for the Statute speaks of any contract or specialty made with the Plaintiff, or between the Plaintiff and Defendant: and the Executor brings an action upon the contract of another: and in the principal case, judgement was entered, that the Defendant should go without day: and that he shall not have costs against the Plaintiff.   

Bret and Ward.  
NOte upon evidence to a jury, between Bret and ward upon the dissolution of a Vicarage, in the County of Warwick, which was part of the Priory of Dantry, where the Pope by his Bull gave to the Vicar minutas decimas et alteragum: and it was certified by the Doctors, that alteragum will pass to the Vicar Tithe wool etc. and the usage was showed in evidence, and the Copy of the Pope's Bull; and the Court would not credit, that without seeing the Bull itself, and so the Plaintiff was nonsuite, and the jury was discharged.   

Bacon against Weston.  
BAcon brought an action of debt upon an obligation against Weston, as an Administrator to one Oaks: and he pleaded, that the said Okes such a day and year in his life time, acknowledged a judgement to him in the King's Bench, upon an indebitatus est of 1500. l. and died, and that he retained so much of the goods to satisfy himself, and that over that 1500. l. he had put 40. s. and it was moved that he ought to plead the general issue, and give this matter in evidence as he may well: but it is a mischief to the Plaintiff, to take issue upon that, for than he ought to say, that he had assets. Hobert, true he may give this in evidence, or he may plead, that the judgement was not satisfied, or defezanced: but we may not compel him to change his plea, except he will assent.   

Potter against Brown.  
POtter brought an action upon the case against Brown for these words, he (innuendo the Plaintiff) as is arrant a thief as any is in England, for he did break open the Trunk of the Plumbers, standing in my Lord of Suffolk's Hall with another man's tools, and took out 20. l. and upon a general issue, it was found for the Plaintiff, and damages given to twenty pound: and Hendon Sergeant moved in arrest of judgement. First, because for want of an averment, that there are thieves in England; and it had been adjudged, that if A. say of B. he is as arrant a Thief as any is in Warwick Goal; yet B. ought to aver, that there are Thiefs in Warwick Goal: but it was holden by the Court viz. by Hutton, Winch, and jones, that there needs not any such averment: and the difference is, when the words do relate to a particular place, and when to an entire realm, and the same law when it is tied to one kind of felony, for it is very well known, that there are Thiefs in England, and any in other realm; and Hendon moved, that the last words extenuate the former, for the latter show, that he took that as a trespass, for he did not say that he stole 20. l. out, but took it out, and so it shall be intended, that he took it as a trespasser: as to say B. is a Thief, for he took money out of my Pocket, implies a trespass: and he is a thief, for he took my horse; this shall be supposed that he took him as a trespasser, and Hutton said, that till the time of Hen. 8. there was not any actions brought for words, and to the end to settle peace, he thought words not to be taken so largely, and favourably in giving way to unruly tongues, and to the unbridled humours of men, but rather strictly to curb them for their evil language: see after.    

East. 22. Jac. C. P.  

Easter Term in the 22. year of King James in the Common Pleas.  
Upon Wednesday being the 25th. day of April, and the first day of this Easter Term, which was the first day which I came to Report; and it was agreed by the Court the same day: that if one come to the Bar to make his law in debt, brought against him upon a simple contract, that the Plaintiff shall be demanded, and if he will be nonsuit he may, and then the Defendant shall not recover costs against him; but as I have heard that this was to have been intended where the Plaintiff was an executor, or Administrator, and not of any other.   

Leonard Barley against Foster.  
BEtween Leonard Barley Plaintiff, and Foster Defendant, it was agreed without scruple by Winch and Hutton justices only present in the Court, that if a man infeoff another to the use of A. for life, and after his death to the use of his daughter, till B. pay her a 100 l. and then to other uses etc. to the use of B. I. in this case the daughter had not any remedy for the 100 l. if B. will not pay that, except he make a new promise, and then upon that she shall have an action upon the case, upon which if she recover, and have satisfaction, the use will arise to B. but otherwise not, though she have judgement to recover that, and whether this same is discharged, is triable by the record of the recovery.   

John Theaker's case.  
NOte that one john Theaker was seized of certain lands, and died in january last, and his wife was married to one Duncombe within a week after, and one Alphonsus Theaker entered into the land, as Cousin and heir to john Theaker deceased, and the wife of john Theaker who was dead gave out words, that she was with child, by her first husband, and upon that Alphonsus Theaker had a writ de ventre inspiciendo, directed to the Sheriff of London, to inquire by 21. Knights and 12 women in the presence of the Knights, whether she was with child or no, and the Sheriff executed that, and returned that they thought that she should be brought to bed within 20. weeks, and upon that it was prayed, that the Court would award according to Bracton, that she may be taken into custody, and that she may have divers women of fashion which may attend her daily, till she is delivered, that no deceit may be contrived against Alphonsus to deceive him, but the Court would not agree to that, though there was a precedent urged, Hill. 39 Eliz. Rot. 1200. Sir Percival Willoughby and the Lady Willoughby his brother's wife in this Court: but the Court awarded, that she should not be taken and detained from her husband, but that a writ should issue to the Sheriff of Surrey, whither the woman was now removed to return divers sufficient women which may resort to her daily, till she is delivered, which was done accordingly.   

Foster's case.  
FOster brought an action of debt of 300. l. against C. upon 2. obligations, dated 20. December to pay him 150. l. etc. and averred he had not paid that, and did not say, nor any part of that: and Bing took exception to that in arrest of judgement, because he had not averred, that he had not paid any part of that, and perchance he had paid part, but not all; but Hutton said, that it is very good, though this be upon several bonds, and it any be paid, it ought to come of the other part to show that. Woolsey was outlawed at the suit of jones, in an action of debt upon an obligation, and the Capias ut legatum was taken out of the Court of the common pleas, where he was outlawed in Trinity Term 21. jac. and in December following, Woolsey was warned to be at the Town of Shrewsbury to choose Burgesses: and before the day a binding process, did issue out of the Marshes of Wales against Woolsey, after jones had delivered the Capias ut lagatum to the Sheriff to take Woolsey, and the same morning that the election was, Woolsey was taken upon the Capias ut lagatum, but he was suffered to go and to give his voice in the election, and then the Baileys of the Marches of Wales arrested him upon the process; and because the Bailiffs of the Sheriff, would not suffer the Bailiffs of the Marches to take him away from them, there was gathered a great riotous company on both sides, but the Bailiffs of the Sheriff took him away, and they and all them, who took their parts were sued in the Marches, for the withstanding their Bailiffs, and upon this Harris moved for a Prohibition, and the Court etc. Winch and jones said, that if he is outlawed bona fide it shall be granted, for the Bailiffs of the Sheriff had lawfully arrested him, and it is lawful for them to keep him, and for others to assist them; and Winch said, that if the persons which stood by, had refused to help them, this had been also sinable, and it was said, that the suffering him to go to the election, was not any sign of a fraudulent arrest; nay, if the party himself, had consented to a fraudulent arrest upon a Capias ut lagatum, this had not been punishable, though they had known that there had been binding Process out against him, because the arrest & the detainer was lawful, and agreed in the principal case, that a Prohibition shall be granted; and it was said, that the other side are punishable, because they did not aid the Sheriff, for the officers of the other side were the cause of the Riot.   

Sir Michael Wharton, and Sir Edward Hid.  
IT was agreed without scruple, between Sir Michael Wharton and Sir Edward Hid, that if a man in an avoury convey a good estate for years to two, and one release to another, that is not good, without the showing of a deed in that case.   

Michael Bone, and the Bishop of Norwich.  
IT was agreed between Michael Bone, and the Bishop of Norwich in trespass, that by the lease of a Grange, and all houses and buildings thereupon, and belonging or let heretofore to one Edward Garrard; that in this case, if it may not be proved, that the Tithes were not let to Garrard, than they will not pass by this lease, for it is not possible that Tithes shall pass as appurtenances to a grange, because that they are of several natures: except as Winch said, that the Grange is the Gleab; for if it is, than the Rectory may pass by this name.   

William Trist, and Cawtrel, at the suit of Heath.  
WIlliam Trist and Cawtrel, were bound in an obligation of 40. l. to one Heath, who brought an action of debt upon that, and recovered at the assizes, and now it was moved in arrest of judgement, that this was a mistrial, for the venire facias was between Heath and john Trist, and the Sheriff returned, that to be between Heath and William Trist; and for this variance he shall not have judgement in the Case.   

Hutton said, in the case between Mankleton and Allen.  
MAnkleton and Allen, that is a man had goods taken from him, which taking he supposeth to be felony, but it is not, and he complains to a justice of peace of that, who commits the offender, and binds the other to prosecute: and he accordingly preferred a Bill at the Sessions, and the other is acquitted; and the opinion of Hutton in this case was, that this is not punishable, by an action upon the case in the prosecutor, for that shall never be maintained without apparent malice in the prosecutor.   

Blunt and his wife against Hutchinson.  
BLunt and his wife brought a quare Impedit against Hutchinson, and made title to present to the Church in the right of his wife, and after the issue joined, and before the venire facias the wife died, and the Plaintiff shown, that himself had took out a venire facias in his own name, and upon that Harris demurred in law, because he supposed that the writ was abated; but Winch was of opinion, that the writ was not abated, because this was a Chattel vested in the husband during the life of the wife.   

Ferrer against English.  
IN an action upon the case, upon a promise between Ferrer and English, and upon non assumpsit it was found for the Plaintiff, and now it was moved in arrest of judgement, that the venire facias was not well awarded, for it was proecipimus quod tibi venire facias Duodecim. liberos et Legales homines Coram Henrico Hobert apud Westmonasterium, where that aught to be Coram justiciariis nostris, and therefore the writ being insufficient it is not amendable, and for that he cited the case where the venire facias was awarded to th' Coroner, and that ought to be awarded to the Sheriff, and this adjudged to be erroneous, this case was answered, that this was the custom, and there was a case alleged to be adjudged 30. Eliz. between Cesor and Story, where a Capias did issue out of this Court, in this form, Ita quod habeas Corpus ejus Coram justiciariis omitting apud Westmonasterium; and this was reversed for error; but this was answered to be in an original, which ought to be precise, in every point; but Sergeant Crook said, that because this was but judicial process, and the trial is taken upon the habeas corpus that it is amendable, for in all cases where the roll is right, though there be an error in the venire facias; yet this is amendable.   

Sir Robert Nappers case.  
A Rent was granted to Sir Robert Napper, and if it happen that this annual rent to be behind, that then the land shall at all times be open, and subject to distress of the Grantee, according to the true form and effect of the said indenture; and upon all the pleading a demurrer was joined, and the sole doubt was, whether the last words were a distinct covenant by themselves, for if they are, than the obligation is forfeit, for the lands are not open to distress, because that the mother of Sir Robert held that till the age of 24. years, or whether they are part of the former covenant, and then the former word will qualify that, because there was not any act made by him to the contrary, and it was argued by Bawtrie, that they are all one covenant, for they charge the land with the Annuity, and he covenants that this shall be open to distress, and it is all one matter and thing, and is therefore a covenant; and where one covenant doth depend upon another, there one expounds the other, so Dyer in Throgmortons' case 151. and he urged many cases which are cited there, and he cited the Lord Cromwel's case, where words of proviso are placed between words of covenants, yet they will work according to the intent of the persons, and there it is said, that ex antecedentibus et consequentibus fiat relatio: and so it appears to him, that this referred to the estate which Sir Thomas had from his father, and that he made nothing to impeach or to alter that and he cited the case of Sir Moil Finch, though by the fine the Manor of Beamstone was destroyed; yet in the said indenture, free egress and regress was reserved to the Courts for the Lady Finch: & afterwards an other fine was levied of all the lands and Tenements, except the Manor of Beamstone, where in verity that was destroyed before, and yet the judges did construe this to be a good exception, because this was in verity the intent of the parties, and there they made a construction upon the covenants, which did lead the fine, and upon the latter indenture which did direct the others, and so the principal case, in Althams' case the judges did not only adjudge upon the first words of the lease, but upon altogether, and he cited the case of Hickmote where the exception extends to all the parties of the precedent deed: and Hendon argued to the contrary, that they were several covenants, and yet he granted, all the cases cited by Bawtrie, but said, they all stood upon this difference, where it is a joint thing, and where it is a several thing as here, and for that reason, that ought not to be applies to that, for they are distinct sentences, and not joint, as is expressed in Sir Henry Finches case, Coo. 6. and they ought to be construed as distinct covenants, for otherwise they shall not take effect at all, for than he had not any remedy, for the rent which is expressly against the intentions of the parties, and Crawley Sergeant said, that if the two first covenants were according to the title, and the last was only conditional, if the rent was behind, that then it should be open to distress, and the Court seemed that they were several covenants, but judgement was respited for that time; and the same Term, the case was moved again by Hendon, that they were distinct covenants, and that this was the scope of the indenture, and the intention of the parties, that this should begin presently, and secondly, the two covenants are of several natures, and if the third covenant be not several, than it is idle, for all is implied in the first, and day was further given to advise of that, but the opinion of the Court seemed to be for the Plaintiff. See after Trin. 22. jac.   

Westlie against King.  
Westly against King in debt the bond did bear date the 11th. of February 18. jac. and this was to perform an award, Ita quod the ward be made before Easter, of all controversies depending between them in the Star chamber, and the Defendant pleaded, that there was no award made in the mean time, and the other shown the award, and assigned the breach, and the Defendant replied, that before the award was made &c. upon the 16th. of March; they discharged the Arbitrators, and so concluded as at the first they made no award; and now Sergeant Davenport moved, that he had not maintained his bar, quod non fecerit tale arbitrium, and have given the discharge in evidence, for now it appears, that the bond is forfeit; but Hutton said, that the Plaintiff ought to have showed this discharge, and so he had showed the forfeiture, and he said further, that the rejoinder is an affirmation of the bar, if they were discharged than they made no award, and this notwithstanding shown a forfeiture of the bond, but not upon the point which the Plaintiff had alleged: and Winch said, though this is is so; yet it appears, that the Plaintiff had cause of action by all the record before, and day was given over in the case; and at that day the Court was of opinion, that judgement shall be given for the Plaintiff, for by the rejoinder the Defendant had showed, that he had forfeited the bond, though that be another matter than is in the replication: and so he shall have judgement, super totam materiam according to the judgement in Francis Case Coo. 8. for their the declaration stood good, though the Plaintiff had not cause of action in the same manner, yet because it appeared, he had cause of action he shall have judgement.   

Weaver against Best.  
Weaver against Best, in debt for 48. s. in the debet and detinet, and for 2. shirts in the detinet only, and he declared, that the Defendant such a year retained the Plaintiff to be his servant in husbandry, giving him 48. s. and a shirt by the year, and he shown that he retained him for the next year, and he averred that he served him, and they were at issue upon nihil debet, and the Plaintiff had a verdict for him, and it was now moved in arrest of judgement by Sergeant Brigman, because he had not showed that his retainer was according to the Statute of the 5th. of Eliz. which Statute limitteth the form of there retainer, and their wages, and other things, and he had not showed the place where service was, and also he had joined two debts in one action, one in the debet, and detinet, the other in the detinet only; and Winch justice said, that the Statute of the 5. Eliz. extends to such as are retained in husbandry, and therefore other retainers are left as they were before the Statute at the Common law, and this shall be intended to be a retainer according to the Statute, if the contrary be not showed by the other party, for his retainer was for a year, and therefore it shall be intended, that the wages was appointed by the justices, and it was also said by the Court, that if the justices of the peace in this kind, do neglect to set down the wages, yet a servant may bring an Action upon his own contract; also it was said, that he needs not to show the place where he served, for if he did no service; yet if he did not departed it is very good; and for the other matter it was clear, that he may bring his Action, so by several precipes in one writ.   

Thorns case.  
IT was agreed clearly between Thorn and C. that where an obligation is made, and the obligor, and the obligee, conferred about it, and the obligor said to the obligee, that he had forged this, this is actionable, for here it refers to a certainty, but if he had said to the other thus, he was a forger, and had forged fals● writings no action will lie, for the words are to general in that case, also it was agreed clearly by the Court, the Sheriff may not arrest a man upon a Capias after the time of the return of the writ.   

Grazier against Wheeler.  
Grazier as Executor brought an action of Covenant against Wheeler, upon a lease made by the Testator rendering rend, and this was made by I. S. and the Defendant covenanted, that the lessee should pay the rent, and the Plaintiff assigned the breach in nonpayment of 30. l. to the Testator such a day when it was due, and for 10. l. due in his own time, and the attorney of the Defendants as to the 10. l. pleaded non sum informatus, and as to the other he pleaded, that the Defendant paid to the Testator 7. l. in money, and a horse in full satisfaction of all the said 30. l, and that the Testator accepted that in full satisfaction, and the Plaintiff said, that this was paid to the Testator for another debt absque hoc, that he received that in satisfaction of the 30. l. and now Devenport argued, that the issue was misjoyned, for the issue ought to have been taken upon the payment, and not upon the acceptance; and he cited Pinnels case Coo. 5. where the payment in full satisfaction ought to be pleaded precisely; and he said, that he agreed to the case of Nichols Coo. 5. where the issue was joined upon payment upon a single Bill, and found that this was not paid, and the Plaintiff had judgement; but if the issue had been found for the Defendant, that had not been aided by the Statute, for though it had been paid; yet that was no bar. Bridgman contrary: and he said the difference is, where the issue is joined upon a matter alleged by the adverse party, and they are at issue upon a point which is not material, that is aided by the Statute of the 18. Eliz. and where no issue at all is joined there is not any help. Winch justice said, that this is an issue which will make an end of the matter,  
And at another day this Term, Sergeant Harvey moved the case again in arrest of judgement, because the issue is joined upon the acceptance, which is not material; and he cited Fowkes case depending in this Court, debt upon an obligation, and the Defendant pleaded the acceptance of another obligation in satisfaction which in verity is no bar, and issue was taken upon that, and it was doubted whether this being insufficient, be aided by the Statute or not. Bridgman Serjeant said to the contrary, and he said as before, that because the issue is taken upon the allegation of the Defendant if it is not good; yet it is aided by the Statute of 32. H. 8. and Hutton said this is a full issue, and as to the traverse said, it is a material issue, for he pleaded, that he accepted them for another thing absque hoc; that he accepted them in satisfaction of the 30. l. which is the most proper issue, for he said it is clear, that he may say that he accepted them for part etc. and good, and so here.   

The Countess of Berkshire, and Sir Peter Vanlore in Dower.  
IT was agreed clearly in Dower, between the Countess of Berkshire and Sir Peter Vanlore, that if the Tenant plead never seized to have Dower, and in verity the husband of the demandant had an estate, but that was by disseisin, which is avouched by the entry of the deseissee, who had a title paramount this is no title, by which she may have Dower, though they are at issue upon this plea, and also it was agreed, that if a man had a good estate by bargain and sale from him who had right to alien that, and yet after he accepts a fine upon conusance of right as that etc. from the other party, though in this case this be a conclusion to the parties between whom the fine was, to deny that the land was of the gift of the Conusor, and so that he was seized; yet it is not any conclusion to the jurors to find the verity of the matter in fact, and that he had nothing of the gift of the Conusor; also it was agreed in that case, if a man held lands in capite, and others in Soccage, and he made a devise of all his fee simple lands, and left only his lands in tail to descend to the heir which doth not amount to a full third part, this is a good devise of all the fee simple lands: and this case was also admitted, that where the Lord Norrice gave land to Sir Edward Norrice his youngest son, and to the heirs of the body of the father, and then the Lord Norrice died, and after Sir Edward died without issue, that the son of the eldest Brother who was then dead, shall take that as heir in tail, and that he in this case had that by a descent from Sir Edward Norrice his Uncle, which also doth clearly prove, that in this Sir Edward Norrice son of the Lord Norrice was in this case Tenant in tail.   

The residue of Easter Term in the two and twenty year of King James. Stephens and Randal.  
IN replevin between Stephens and Randal, who made Conusance as Bailiff to the Earl of Bath, and he shown that such land was parcel of such a Chantrey, which came to King Edward 6. by the Statute of 1. Edward 6. and also he pleaded the saving of the said Statute, by which the right of others was saved, and pleaded all incertain, and shown that so much rend was behind, upon which he made Conusance as etc. to which the Plaintiff replied, that the land is out of the fee and signiory of the Earl of Bath etc. and this was ruled to be no plea, for he confessed so much in his avoury, and this avoury is not for rend service, for the signiory is extinct by act of Parliament; but this is for rend reserved by the saving of the act of Parliament, and this is a rent seek, and yet is destrainable for the privilege which was before, but he may traverse the tenure, that at the time of the making of the Statute, nor never after this was holden of the said Earl of Bath.   

Priest and King.  
Priest and King in an action of— which was entered between them Trin. 21 jac. Rot. 3595. and this was debated between the judges and the Prothonotaries, and the case was, that two were bound for the appearance of an other, and judgement was given against the debtor, now if upon the capias he come and offer his body, and the Plaintiff refuse that, yet that discharges the sureties; but the Prothonotaries said, that notwithstanding this refusal he may take a Capias against him within the year, because that at the first he might have had a fiery facias, or an elegit quere of that; but Winch thought that in this case, he ought to have a fiery facias, but if he had come upon the Capias, and had no suer●tes and he refuse to take him, and this is so entered now quere, if he had not discharged him.  
Hendon moved the Court for a prohibition to the spiritual Court, and suggested that one had libeled in the spiritual Court for a legacy, and the Executor shown that he had not assets to discharge the debts of the Testator, and that Court would not allow this allegation, and upon this he prayed to have a prohibition: and it was the opinion of the Court, that no prohibition shall be granted, for the legacy is a thing merely which is determinable in the spiritual Court, and no other Court may have Conusance of that, and this is also a thing which doth consist merely in the discretion of the Court; and resolved that in a thing which merely doth rest in discretion of the Court, in this case no prohibition shall be granted.   

Henry Good against Thomas Good.  
IT was agreed in the case by the Court, between Henry Good and Thomas Good, that if the devisee of 500 l. sue in the Marches of Wales for this legacy, that a prohibition is grantable, for though the Court of the Common pleas had no power to hold plea of that, yet because that the thing is only triable in the Ecclesiastical Court, a prohibition may be granted to reduce that to its proper Court: and though the instruction of the Court of the Marches be to hold plea of all such things, wheresoever there is no remedy at the Common Law, yet this is to be understood of matters of equity, and not to take the jurisdiction from the spiritual Court, for in verity the King may not do that by his Letters patents; but yet the Court agreed, that if the Executor do suffer a decree against him in the Court of the Marches, and not come to them at the first to be relieved, it is now merely in the discretion of the Court whether they will grant that or no, for that is a means to lengthen suits, and to make the more delay, before he do recover his legacy.  
If a Capias ut legatum issueth to the Sheriff to take the party, and to inquire what lands and Tenements he had, and the Sheriff finds by inquisition that he is seized of many lands, and continues possession in them, and the Sheriff do out me, I shall have an action of trespass.   

John Marriots case.  
Sergeant Crawley moved this case in arrest of judgement in the case of john Marriot, and he declared upon a contract, to table with the Plaintiff at Ashton in Northamptonshire, & ad tunc & ibidem superse assumpsit to pay 4. s. by the week for his diet; and Crawley moved, that this aught to have been tried in Northamptonshire, for these words ad tunc et ibident refer to Northamptonshire which was next before, and not to London: Hutton said, that it ought to refer to London, otherwise it was idle, and it is to be intended of the time and the place where the promise was made, but it was said if the issue had been, whether he was tabled or no this shall be tried there.   

Giles Bray against Sir Paul Tracie.  
GIles Bray brought an action of waste against Sir Paul Tracie, and in his declaration he conveyed a good term to the Defendant, and a reversion to himself; and upon a general issue a special verdict was found to this effect: that Sir Edmund Bray was seized of this land in his demeasne as of fee, and he being so seized 16. Eliz. made this lease for divers years to I. S. and he being so seized of the reversion conveyed that to the use of himself for life without impeachment of waste, and then to the use of Edward Bray his eldest son, and to Dorothy his wife, and to the heirs males of the said Edward, upon the said Dorothy to be engendered, and then Edward died having issue in tail the Plaintiff, and then this lease was assigned to Tracie, and then Dorothy died, and then the waste was committed, and then Edmund the Grandfather died, and the question was, whether in this case an action of waste will lie or no.   

The argument of Sergeant Harris.  
HArris argued, that the waste doth lie, for the privilege or despensation, which was annexed to the reversion, for life of the Grandfather is no dispensation to the estate of the lessee, for though the action was suspended during his life; yet now it is on foot again, and in many cases an estate may be dispunishable of waste, and yet by matter ex post facto this shall be punishable, viz. where the first privity of the estate was determined, as in case a lease for years be without impeachment of waste, and then the lessor releases to the lessee etc. the first privity is gone, and he is now punishable in an action of waste, and here in our case there was no absolute dispensation, but only for the time, and yet perchance though the estate is subject to waste in the creation, yet if the lessor will afterwards, by his deed grant that this shall be dispunishable, this may privilege him, but here is no such matter in the case at the bar, and of this opinion was the Court, and Winch said, that there was no difference where the Frank tenement is intercedent; for if this be not punishable, yet the particular estate shall not participate of that privilege of him in the remainder: and jones justice said, if the particular estate had been extracted, and drawn out of that estate for life, in that case that had been dispunishable; but it was agreed by Hendon Sergeant, that the Plaintiff in his declaration had declared of a waste after the estate for life was determined, and they found that this was made in the time of him in reversion for life, and so differed, but the Court was of opinion, that this was nothing to the purpose, for it is only a variance from the time, and not from the matter, for it is not material whether this was before his death or after his death, because in both cases this is punishable, but day was given over to show other causes.   

Portington and Beaumont.  
IT was argued clearly in the case, between Portington and Beaumont, that if the Court of the Council of York, which is a Court of equity, do decree against a maxim in law, as against a joint Tenant who had that by Survivorship, that the heir of his companion shall have the Moiety, that in this case a prohibition shall be granted, except that during the lives of the parties, it was agreed that there shall not be any Survivorship, and then they hold plea upon that equity, and then good.  
In Dower it was agreed clearly, that if the Tenant show, that before the husband any thing had in the land, A. was seized of the same land in fee, and le● that for years rendering rend, and granted the reversion to the husband of the Plaintiff, who died seized of the said reversion, and so demanded judgement, if the demandant shall have Dower etc. this is no plea in bar of Dower, but proves she had title of Dower, but this saves the lease for years, and she shall have judgement only of the reversion, and of the rent: and also she doth save to the Tenant damages, and the demandant shall be endowed of the reversion.   

Summers against Dugs.  
Summers' brought an action upon the case upon a promise against Dugs, and he shown in his declaration, that the Defendant was rector of the rectory of D. and that he and all his predecessors had used to have all manner of Tithes, and said that he the Plaintiff occupied 100 acres of land in the same parish, and shown that the Defendant promised to the Plaintiff, that in consideration that he would plant his lands with Hops, and so make the Tithes to be the better, the Defendant promised to the Plaintiff to allow him towards every acre, which he shall so plant 40. s. towards the charge in planting them: and he shown that he planted an acre at the request of the Defendant, and so upon the promise brought the action, and now it was moved whether this was a good consideration to ground an action, because the Tithes are not bettered by the planting of that with Hops, but by the growing of them, and the increase of them; and he had not averred, that the Tithes were of better value than they were before: and it was also moved, that he may not have an action for the Rood etc. but this afterwards was referred to Arbitrement; but the Court said, if the Plaintiff had showed in his declaration, that he might have made more benefit of that by other means, then that by the planting of it with Hops, the Tithes also being bettered, than it had been more clear.   

Philip Holman against Tuke.  
Philip Holman was executor of George Holman, and he brought an action of debt against George Tuke, and declared upon a lease made by himself by the name of Philip Holman executor of the Testament of George Holman deceased of such land, and the said land was delivered to him in execution of a Statute by extent, which Statute was made to this Testator, and this lease was for years, if the Plaintiff should so long continue seized by force of the Statute, and it was rendering 100 l. per annum and for 3. years rend behind, he brought his action in the debet and in the detinet, and also in the declaration he averred, that he did continue seized so long by virtue of the extent, and Sergeant Bing demurred in law, because he said the action ought to be brought in the detinet only; because he had brought the action as executor; but Hendon and the Court etc. jones and Hutton to the contrary, because the lease was made by himself, and Hutton said in the case there is difference between a personal contract, and real, and it was said, that an executor shall never be forced to bring his action in the detinet only, where he need not name himself to be an executor: which note well.  
It was agreed in a case by Hobert, that where a man brought an action de parco facto and declared upon the breach of a pound, and also of the taking out of beasts; and the Defendant as to the taking out of the beasts, pleaded not guilty, and as to the breaking of the pound, he said that he was Lord of the Soil, upon which the pound stood, and tha● he broke of the Lock, and put a lock of his own; and Hobert said in this case, that he ought to plead the general issue, for in verity this is not any broach of the pound, except the beast come out of it: and jones justice was of an opinion, that if he put out the beasts he may not have this action, because the freehold was in him, but he ought to have a special action upon the case.   

Entered in Easter Term in the 19th. year of King James Rot. 1672. Ellen Goldingham against Sir John Saunds.  
ELlen Goldingham brought an action of Dower against Sir john Saunds, to be endowed of the third part of the Manor of Goldingham, and he vouched the son to warranty, as son and heir to Christopher Goldingham, husband of the demandant, who appeared, and entered into warranty freely, and he pleaded that he had nothing by descent from Christopher Goldingham his father, upon which plea the Tenant and the vouchee were at issue, and the demandant had judgement against the Tenant to recover, but cesset executio until the voucher is determined: and after that, and before the day of the nisi prius Edward Goldingham died, and then at the day the Tenant lost by default, so is the Record, and now upon the prayer of the demandant to have a writ of seisin, these cases were moved.  
First, by Sergeant Hendon, that the writ of seisin may be stayed, because as he said, the Tenant may revouch the heir of the heir, for it is not possible, that the vouchees should lose by default, because that he was dead, and therefore you may see, that he conceived, that where it is said in the Record viz. on the back of the postea, that the Tenant lost by default, he conceived that to be meant of the vouchee, and not of the Tenant in the writ of Dower: but Hutton was of opinion, that admitting that it should be so intended, yet he may revouch, for there was a judgement given against him with a cesset executio till the voucher is determined; and that is now determined by his death, and when judgement is once given he had not day in Court; but if the vouchee had died after the warranty, than he may revouch, but here the Court rather intended, that the record shall be meant that the Tenant in the writ of Dower made default, and then it is not possible, that ever he shall revouch, but they said, it had been more question if the Tenant had appeared at the day of the nisi prius, and had pleaded the death of the vouchee after the last continuance, and had prayed the advantage of his warranty: and at another day Hendon moved, that the judgement given against the Tenant was not good, for it was absolute with a cesset executio, where that aught to be a conditional judgement etc. against the Tenant if the vouchee had not assets, and if he had, than judgement against him according to the Lord Dyer 202. Mich. 3. Ma. Rot. 508. for otherwise the Tenant shall lose the benefit of his warranty against the voucher, and so if the heir do confess the assets, yet the judgement shall be conditional, for otherwise if he had not assets according to his confession, the demandant shall have a new judgement against the Tenant, and of this opinion was jones justice.  
But Hutton said, that this was very well, and that the judgement may be either ways conditional, or absolute, and he said, that this is no prejudice to the warranty, for the Tenant may have a scire facias against the vouchee; but in this case day was given over till the next Term; and the Prothonotaries were commanded to search the precedents concerning that. See more after.   

Marry Over and her second husband against Tucker.  
Marry Over and her second husband brought an action of Dower against one Tucker, and demanded Dower of the endowment, of one Paul her fi●st husband, and it was agreed, that this trial ought to be by witnesses according to Dyer 155. and it was awarded by the Court, that the the Council of either side should draw up Interrogatories, and put their neams to them, and then they should be delivered to Master Waller the Prothonotary, in whose office the cause is entered, and he shall have the examination of the witnesses of both sides, and then seal up the Interrogatories again, and so remain till they were delivered over to the Court, and then qui melius probat melius habet.   

The residue of Easter Term in the two and twentieth year of King James in C. P.  
AN action of debt was was brought against an Executor, who pleaded plene Administravit, and the other replied and shown that before this action brought, he brought another action against the Defendant in which he was outlawed, and that after the reversal of the outlawry he took out this writ etc. and that he had assets at the first bringing of the first writ, and issue was taken upon that, and it was found for the Plaintiff, and it was resolved that the Plaintiff shall have judgement, for this is in nature of Journeys accounts according as it was in Aldridges' case upon the same matter, which was long debated by the Court, and it was also affirmed to be good law, in a writ of error brought of that in the King's Bench, for otherwise if it should not be so, the Defendant himself should take an advantage of his own evil plea, which the law will not allow by any means to be suffered, but than it was said by the Court, that in this case, the Plaintiff in the action ought to bring his second writ immediately after the reversal of the first judgement in the outlawry, if he will take any advantage of that.    

Trin. 22. Jac. C. P.  

Trinity Term in the two and twentieth year of King James in the Common Pleas.  
HIckford brought an audita querela against Machin, and the case in effect was this, Richard Davis 43. Eliz. acknowledged a Statute Merchant of 500 l. before the Mayor and Clark of Gloucester to Machin, and all the circumstances of the Statute de mercatoribus were well observed, saving only that no day of payment was mentioned, and after the said Machine took a lease for years of part of the land, of which the Conusor was seized, and after the Conusor died intestate, and Hickford took out letters of Administration, and Machin sued execution against the said Hickford who brought an audita querela: and the single point was, whether this Statute be good, in regard that no day of payment is appointed, and after divers arguments by the Sergeants in other Terms, this Term it was argued by all the Court, and the effect of their several arguments were in this manner.  
jones justice began and said, it seems to me that the Statute is good, and that no audita querela will lie, and he said here had been 3. objections made against this Statute; first, that every Act of Parliament which gives directions for the doing of a thing, aught to be precisely pursued, and shall not have an explanation upon an explanation, and he said, that notwithstanding this objection, he thought the Statute to be good, for in every Act of Parliament there is substance, and there is form, and if the substance be observed, though not every circumstance, yet that is very good, and so is the case concerning conditions, which are as strictly to be observed as any thing, yet if the substance be observed, though not the very letter, yet this is very good; as the case of Scroop, 
Cook. 10.  one Covenanted to stand seized, to devise uses with a provisee, that if he shall be disposed to alter, disannul, or change the uses etc. that then it shall be lawful, at all times at his pleasure to do this by his writtag indented, under his hand subscribed in the presence of 3. witnesses to disannul them, and also by the same writing to determine and set down other uses; now if by indenture in the presence of three witnesses, he do covenant with another to stand seized to other uses etc. here though there is no express determination of the former uses according to the words; yet the limitation of the new uses do imply a determination of the former uses, and so the substance of the words observed, though not the very literal expression: and so was it lately resolved in this Court between Kenet and Lee, that where such covenants were with power of revocation in his life time sealed and delivered, now if in this case this be done by Will sealed, this is a sufficient revocation, for the intent was satisfied, and if in this case, then by the same reason in our case; but now let us come to this Statute, and in this Statute there are matters of substance, and matters of circumstance; and the Statute of Acton Burnel saith, that the debtor shall come before the Mayor to acknowledge that, now this is but a circumstance of the Statute, for if the Mayor come before him, this is very good, for the substance is, that the Statute must be acknowledged before the Mayor in proper person, and not by Attorney, and also the Statute saith, that the recognizance be entered into the Roll with the hand of the Clerk, here the inrolment is the substance, and not the writing, and so the Statute de mercatoribus is, that he ought to come before the chief Officer of the City etc. and yet it hath been ruled here, that if the City be governed by 2. chief officers, he ought to come before them both, for to this purpose they are but one: nay, the Statute is, that he shall be a Merchant who shall acknowledge that, and yet if he be not a Merchant, he is within the compass of the Statute to be a Conusor; but now to the point, whether this is substance or circumstance, and I am of opinion, that though the day of payment is not expressed, yet it is very well, for a day may be in that, and yet not be good, as if it be at Michaelmas after I. S. shall come to Paul's, now in this case, because it may not appear to the Mayor judicially when to award execution, therefore it is not good; but if this be to pay the first return of Michaelmas Term, this is very good, for there he may know immediately when to award execution, and the same law if it be to pay before Michaelmas next, or to pay presently, as an obligation, and so the Mayor is bound to take notice, that this is to be paid presently.  
Another objection that it shall be frivolous, that his body shall be taken so soon as it is acknowledged, but I answer, that this may be very well, for this is for the security of the Merchant who is the Conusee, and Merchants shall not be supposed to know when tendering may be, in regard, that they are supposed to be men of foreign imploment, and so upon the Statute of Bankrupts, for the words of the Statute are, to every creditor a portion is allotted to him; by your construction the sale shall be void, because it is not according to the words of the Statute, but you see that this is ruled to be against you.  
The third objection is explanatorie to the Statute of Acton Burnel; and for that it ought to be precisely perused and not to  from that, but I answer to that, that the Statute de mercatoribus itself had not been observed in every point and circumstance, for the words of the Statute are, that if the debtor do not pay at the day, that then the debtee may come before the Mayor and sue executtor, and yet it was resolved Coo. 2. 48. that the executors of the Merchant may come; and besides the words of the Statute are, that the extent shall be of all his lands, which were in the hands of the debtor at the time of the Statute acknowledged, and yet if he who is the Conusor purchase lands afterwards; yet they shall be liable to be extended by force of the same Statute, though not made mention of, and so it is out of the words of the same Statute; and so I am of opinion, that the Statute is good, and that in this case no audita querela lies.   

The argument of Justice Hutton  
HUtton contrary, I am of opinion, that this Statute is void, and that the audita querela well lies in this case, and all my argument shall be upon the Statute Acton, Burnel, for this is the fundamental Statute, and I conceive that the intent of the law is, to contain a certainty when the money shall be paid; and the conclusion of the Statute de mercatoribus goes over, and further than the Statute of Acton Burnel, for this doth extend to all the subjects of the Kings, (jews only excepted) and there is a reservation, that this shall not destroy the action of debt, and also there is a reservation to the judges, that they may take a recognizance as before, and this Statute of Acton Burnel was made the 11th. Edw. 1. and there are in that Statute several essential points, 
Acton Burnel explained.  which of necessity ought to be observed, and first that this aught to be taken before an officer, and yet two officers which are the chief officers may well do this, for to this intent they are but one. Secondly, there ought to be a seal of they p●rtie. Thirdly, a day of the payment ought to be also expressed, because the security is taken before an ignorant man. Fourthly, the seal of the King ought to be to that: and fifthly, this aught to be enrolled: and it hath been also agreed to my hand, that a conjectural day of payment is not good, as at Mich. after the return of such a one from Rome, or after the accomplishment of the age of 27. years, for those shall never be days to give jurisdiction, though they are good by way of contract: and such a recognizance is good, for any thing for which an action of debt will lie, but if no action of debt will lie in this case, than it is not good; and so is also the Statute of 23. H. 8. cap. 6. for it doth not extend to such things; but where an action of debt lies.  
And the first part of the Statute is, that the debt and the day of payment be entered in the roll, that so it may appear whether the day be passed nor no, and that may not appear by the judgement of the law, but upon the face of the Statute, and there is also one clause in the Statute, that if the debtor will say, that his goods were delivered, or sold for less than they were worth the party had no remedy, for when the Sheriff had sold them, the debtor may account it his folly, that he sold them not before the day of the suit; but if in our case, the money is payable presently, he had then no time to sell them, for certainly the meaning of the Statute was, in this to give time to the Conusor to allien, and to sell his goods; and so of a recognizance taken before the chief justice, upon the Statute of the 23. H. 8. without question a day ought to be limited when that shall be paid, and there ought to be the seal of the party, and the seal of the King, and the day of the payment specified, and my first reason wherefore this Statute is void, is because when an act of Parliament limits jurisdiction or power to any inferior man, he ought to pursue his limited jurisdiction precisely in all the substantial points: as the Statute of Magna Charta limits, that he shall hold his turn viz. the Sheriff within one month after Michaelmas or Easter, now if he hold that but 2. days after it is void.  
And the reason is, he ought to pursue this limited jurisdiction, and then what difference is between those several jurisdictions, and I cannot compare that to a better case, 
Cook 10.  then to Neufages case upon the Statute of the 23. H. 6. if the Sheriff do take an obligation for an appearance, if it do not appear in the condition, when the day of appearance is, than this obligation is void, for the day of appearance ought to appear expressly; and not to leave this to the construction of the law, and then what difference is there between our case: indeed contracts may be many times made good by reference, but so may not a Recognizance; and yet 17. Edw. 4. a man made a contract to give so much for Corn when he saw that, and the contract by the justices was awarded void, because that no day was set when that should be paid, and see the book which is, I conceive that if the contract had been to pay, when he took the Corn it had been good, and so here if a man had such a jurisdiction, he ought to pursue that precisely; and for that the day in all those cases ought to be observed, and a fortiori in our case: and an other reason is out of the precedents in all times, and though there may be some few which doth pass, sub silentio yet I do not value them according to Slades case: 
Cook 4.  and 5. Edw. 4. and all the subsequent Statutes since the Statute of Acton Burnel, are but declarations, and additions to this Statute, and as Grants case upon the Statute of 32. H. 8. nay that is not only a Statute of explanation, but is also an original Statute, but the Statute of 34. H. 8. of Wills is merely a Statute of explanation, and for that reason in Buckler and Baker's case is, 
Cook 3.  that Act to be construed precisely according to the word, and no new interpretation may be made of that; and for an answer to that which my brother jones said, that here is a day equevolent to an express day, for it is implied in law to be paid presently, according to the case of an obligation; but I say, that in this case there is a diversity in our books, in the case of an obligation, 14. Edw. 4. 14. H. 8. 29. and other books, whether this is payable presently or upon request, and therefore in a case so dubious it is not fit to make an ignorant Mayor to judge another case, by the rule of this case being so dubious, and so doubtful, for if in this case it be not payable without a request, than this is matter of fact, and not triable before him, nay the Statute of mercatoribus itself appoints that the day be mentioned, and so both the Statutes do mention, that there ought to be a day of payment appointed and fixed in the Statute, and then wherefore shall we make construction, that an employed day will so serve the turn; and in the Statute de mercatoribus the form of the writ is set down, which doth expressly mention a day, and so I think there is not any doubt, but that if it were a Recognisance upon the Statute of of 23. H. 8. for default of day it shall be void: and so in our case, and so he said the audita querela lies well.   

The argument of Justice Winch.  
WInch to the contrary, and because the effect of his argument was to the same purpose, with that of justice jones, and of the Lord Hobert, I will report that but briefly: and he said, that he held this to be within the Mayor's jurisdiction, for the purpose and the intent of this Statute is, to give security to the Merchant creditor, and for that reason the day is not material; but I will insist upon two things veritatem facti, and considerationem legis, here is a good contract, and for that it ought to be paid presently, and if there had been no other matter but this, that it had been payable at a day past this had been good, for the mistake of the Clerk must not make any Statute to be void: but yet I grant, if this were part of the jurisdiction, this aught to be pursued precisely as the law doth prescribe, but a petty addition or omission, so that be not in point of substance will not hurt that: and this is not part of the jurisdiction, but it is to the Statute according to the intentions of the parties, and the day is only part of their agreement; but it hath been said, that this had been idle, for the Statute shall not be taken so to pay presently, but I say the contrary, for though he had not his money in his hand, yet he will not trust him but will have his security, and yet I agree to the difference before, that there ought to be a time certain, and not to be proved after by averment; and here when no time is fixed, this is payable presently; but there shall need to be a request, than I hold it is out of the Statute, and when Satutes are obscure, they ought to be interpreted according to the rules of the common Law, and as to the case of an obligation, it is payable presently, and we ought to intent that the Mayor takes notice, that this aught to be paid presently, for ignorance of the law is not supposed of any; besides, if this Statute be absolutely void, than the party is without remedy, and in such a case we ought to b● favourable in our expression: and so I conclude against the audita querela.   

The argument of the Lord chief Justice Hobert.  
HObert chief justice to the same intent: I hold that the Statute is good, and we ought to beware how we destroy assurances, except it be upon good and sure grounds: and it is a perilous case, to make an ignorant man to lose his right by a slip, and we ought to be the more wary, because this is for Merchants, and the Statute was made for their security, and by intendment they are men of foreign employment, and so have the less occasion to know the Law, and these Statutes of traffic are to be cherished and not be pared to the very quick, and we all agree that every substantial matter ought to be pursued, but not circumstances, and then the question is, whether this be substance or circumstance, and we also agreed that there ought to be a time certain when the money shall be paid, and that is either an actual time or a legal time, and for the material points, that aught to be acknowledged before an officer, and in the Statute of Acton Burnel this word Maior is in that, and no other principal officer, and yet there is no doubt but that this may be taken before another, who is a principal officer of a corporation, though he be not a Mayor. Secondly, this aught to be also before the Clark. Thirdly, it ought to contain words obligatory. Fourthly, there ought to be a person bound. Fifthly, this aught to contain a sum, but it may be a doubt if an action of debt will lie for that. Sixthly, it ought to be under the seal of the party. Seventhly, it ought to be under the seal of the King. Eightly, the inrolments is also necessary, and this Statute is such a remedy as the Common Law never gave to the King himself, so all assurances in this kind are to be made to the Merchants, and certainly in our case the day is not so material; but the time which the law will take notice of, for the ignorance of the Mayor must not make any Statute void, and I do not grant the case, that if this was to pay 10. l. after the death of S. P. this will not make that void, but if the Statute be to pay at several days, than then it is a quere in law, whether it be payable till all the days of payment be passed as of a bond; and for the writ, it is but to proportion our actions according, and to do after this way, or manner; and so upon the whole matter I conclude that the Statute is good, and that the audita querela doth not lie; and judgement per Curiam was commanded to be entered against the Plaintiff.  
The case of Giles Bray was moved again in arrest of judgement, and Hendon said, that the Plaintiff had declared of a waste made after the death of the said Edmund Bray the Grandfather, which was to his disinheritance etc. and the jury did find the original lease and assignment, and they found that the waste was made before such a day, which was before the death of the Grandfather, and now he said, that because it is found generally, that before the death of the Grandfather the waste was made, and this was found precisely, and it is not found precisely, that at the time of the waste made he was termor in possession, and that is not good, for it may be that he made that before the assignment, and then it is not punishable of waste, and if the waste was made in the life of the Grandfather, he ought so to have declared, for otherwise it was not immediately to his disinheritance; nay, the Grandfather might have during his life released or confirmed to the Tenant, and so have determined the waste, and then he in reversion shall not recover: like to the case where an Abbot declares of the waste against the lessee of his predecessor, and declares of waste generally, this is not good, for if this was made in the time of his predecessor, than he may not punish that, and so in our case, perchance the Grandfather had released, and then he in reversion may not recover, but as to the first exception the Court seemed, that because the Plaintiff shown expressly that he was possessed by virtue of the lease, and he being so possessed made waste, the finding of the jury shall be agreeable to that: and so this exception was over ruled, and for the other, the rule of the Court was, that whether this waste was committed in the time of the Grandfather, or after his death, this waste was to his disinheritance, and the Grandfather by his release might not by any means discharge that waste, for he may not transfer that privilege, and so the judgement was given for the Plaintiff.   

The residue of Trinity Term 22. Jac. C. P.  
NOw the case of Sir Robert Napper and Sir Thomas Earsefield, was moved again in which the Plaintiff assigned the breach, because that after Sir Thomas and his wife did live asunder, the land was not open nor subject to distress of Sir Robert Napper, and upon the opening of this to the Court, the Court conceived that this rent was granted to be paid immediately, and to distrain for that, but afterwards there is a clause, that it shall not begin in point of payment, till Sir Thomas and his wife did live asunder, and then it shall be paid the first day which was limited after: and Crawley Sergeant said, that the intent was, that it should begin presently, and that it should be subject to distress, and therefore to make that an entire covenant, is against the very intentions of the parties, for covenants in nature are several, also if they shall be construed, otherwise the party shall be without the remedy which was intended (S.) a distress, but the Lord Hobert and Winch were of opinion, that if Sir Thomas Earsefield had received his estate truly, that he had but a reversion expectant upon a term for years, and then had made such a grant and such covenants, then in this case the covenant had not been broken, and then the meaning would be, that he should not have any rent till he had one to grant, but it doth not appear here, and therefore is a difference, and the covenant is broken, and Winch said, that the intent was, that the wife shall have that, for her maintenance when they did live asunder, so that then it shall be paid to the use of his wife, for this was in trust for her, and for that reason they ought to be several covenants of necessity, for the state of the Mother of Sir Thomas Earsfield did not appear in those indentures, and then he ought to take that as it is at this time, and the appearing of that now is not material: and if any other construction shall be made, than the parties to the indentures shall be deframed: Hutton of the same opinion, that they are several covenants in the intent and meaning of the parties, and they are of several natures, for the first covenant is in the affirmative, the second is in the Negative, and the third is in the affirmative, and it is all one, as if the word covenant had been to every clause in express words, for he did not say, that this should be always open, and liable to distress according to this estate, for than it had been but one covenant, and it had been otherwise, for if no estate had appeared, he shall not be chargeable in law, nor perchance he would not deal with him, and we ought not to take notice of any thing, but that which is upon record; nay, his own plea proves that they are several covenants, for to the negative covenant he pleads negatively, and to the other he pleads in the affirmative, and so the very intent proves them to be several covenants, and Hobert of the same opinion, that it shall be taken as a present grant to charge the present possession, and so judgement was commanded to be entered for the Plan.   

Entered Easter Term 18. Jac. C. P.  
THe case of Goldingham and of Saunds, was new moved again by Sergeant Winch, and he prayed a writ of seisin against Saunds, and the doubt was, whether the first judgement being absolute with a cestat executio was good, or whether this aught to be conditional; and I conceive that in our books there are those differences in this point, if the Tenant do vouch in a foreign County, then without any more the demandant shall have judgement against the Tenant presently: 17. Ed. 3. 50. 13. H. 4. judgement 224. because the demandant shall not recover, 
Cook. 9  but only in the same County, and the reason is clear in Anne Beddingfields case, because the original may not extend to another County; but if the voucher be in the same County, then in some cases it shall be against the vouchee, and in some cases it shall be against the Tenant, and if the vouchee will come and render Dower, than the judgement shall be conditional against him etc. if he had in value, and if he had not, then against the Tenant, and the other against the vouchee, and so is Dyer foe 202. and Gray's case was a conditional judgement against the vouchee, and so is the case 18. Ed. 3. fo. 56. out of which books I note that in some cases, the vouchee shall have judgement against him, and the judgement in that case shall be conditional, and so if the vouchees make default, than the judgement shall be conditional against him 4. Ed. 3. 35. the old print: 2. H. 4. 7. but if the case be, that the demandant is delayed in his execution by the vouchee, than he shall recover against the Tenant, as if vouchee be in the ward of the King Dyer 326. and so in the case of a Common person, as is 17. Ed. 3. by the Reporter, who also citys a judgement given in the time of the same King, though the opinion of the book is against that; but than it hath been said, that this is mischievous, for then the Tenant shall lose his warranty: I answer no more than when he is vouched in the ward of a Common person, and over this the Law doth provide a remedy for him, 
See 27. H. 8. cap. 10. & 32. H. 8. cap. 5.  as the Act of H. 8. if the feme be evict of the Dower by a title which is paramount, than she may have a scire facias against the Tenant, and if the vouchee had not assets in this case, than the Tenant shall have execution against them as they hap, and so is the judgement in Dyer 202. and there was a judgement in this Court 38. Eliz. Marry Ashburnham brought a writ of Dower against Skinner, who vouched the heir of the husband, as in this case, and they were at issue upon assets in the same County, and the same judgement as here, and it was found by verdict for the vouchee, and after the judgement and before the voucher was determined, a writ of error was brought, and affirmed, and our case here is as strong as this, and so I pray a writ of seisin for the demandant. Sergeant Hendon to the contrary, the question is, whether this aught to be a conditional judgement, or whether this may be absolute with a cesset executio as the case was here, and I shall lay this foundation, that it is in the election of the feme when the heir is vouched in the same County, whether she will have the same against the Tenant, or vouchees; but for the case of 17. Ed. 3. that is but a quere of the Reporter which I do not value, for the book itself was otherwise, that it ought to be conditional, because it is in the election of the feme to have that against either: and for Dyer 202. there the question is, whether the judgement shall be presently or stay and expect till the issue is tried between the vouchee and the Tenant, but no question whether this shall be conditional or no: and the reason is, when he is vouched in the same County if he had assets, than she had not election, for there it shall be only against the vouchee, if that be found by verdict, or confessal, and this is for the benefit of the purchasor, and also for the benefit of the demandant: in Dower for the warranty in the ancient time was the Common assurance of the realm; and for that reason, if the judgement may be against the heir, it shall never be against the Purchasor, and also it is for the benefit of the feme, who is demandant in Dower, for if she be endowed against the Tenant, and afterwards she be evicted she shall not have a scire facias, but if it was against the heir, than she shall have a scire facias to have in recompense: and so is 16. Ed. 3. judgement 3. that if in Dower the heir is vouched and made default the judgement shall be against him; out of which I do conclude, that the judgement ought of necessity to be conditional, for by this the State of the feme, and of the Tenant is preserved, for if the feme shall have that against the heir, than she saves her warranty in Law, and therefore if the judgement at the first may be absolute, than you take away all advantages from the feme and the purchaser, if it hap that it shall be against vouchee, and for that reason it is not good, for it is unalterable, and it is a principle in out Law, that the feme shall recover against the heir, if he be vouched in the same County if he had assets, and not against the Tenant 6. H. 3. Dower 16. the demandant shall recover immediately against the vouchee, when he was vouched as heir, and so is 18. Ed. 3. recovery in value 16. et 31. Ed. 3. vouch. 30. there the judgement was against the vouchee, though he had nothing by descent at the day of the writ purchased; & there is a writ in the register, which recites such a recovery voucher and judgement conditional, and so is the 34. H. 6. expressly: and for that to say, that the judgement may be absolute, is to make all those books erroneous, and the case of Dower differs from all other cases of vouchers; for if land descend in tail, it is sufficient assets for the feme to have Dower, because the feme is dowable of them, for this sufficeth to say, that he had assets generally 7. Ed. 2. Dower 184. out of which I conclude, that this voucher is not like to other vouchers, but this is only to secure the estate of the Purchasers; and then as to the precedent, I answer first, it was found there, that the vouchee had nothing: and also it was never debated, for a writ of error was brought of that and nothing done, for this was referred to Arbitrement, and so I pray that no writ of seisin may be awarded: and the Court seemed to be of opinion, that the judgement may be conditional, chief Hobert and jones vehemently, but now they said because that judgement is once given, they are not to reverse their own judgements, and to give another judgement, and now it is as if he had no assets, but yet that doth not aid an erroneous judgement given before, and therefore if the Tenant will be relieved, he ought to bring his writ of error, but it was said, that if this judgement was to be given again, this was as it should be, because that is all one now as if he had not assets, and the judgement stood as it was.   

Potter against Brown.  
NOw the case of Potter and Brown was moved again, and Hendon took two exceptions as before, first for default of averment; and secondly, the words are not actionable, for it was adjudged in Lanes case, if one say of another that he is as arrant a Thief ●s any is in the Goal of Warwick, this is not good without averment, that there are Thiefs in Warwick Goal, and here it shall be so, for the law doth not suppose, that there are Thiefs in England, and besides here in this case the subsequent words do qualify the other, for the words under the (for) ought to be of such a thing as is Theft, and that is not so in our case: Sergeant Richardson to the contrary: the last words do not qualify but rather aggravate them, for he gives a reason of his speech, and this taking is to be understood with a felonious intent, for the first words do charge him to be a Thief, and therefore the last words shall be intended, that he took them with a felonious intent, for he did not only charge him in the general but in particular; but the Court etc. Hobert, Hutton, and Winch said, that the Plaintiff shall not have judgement; because he fails of averment, for he did not say expressly, that he is a Thief, but as arrant a Thief as any is in England, and we are not to inquire after words, except they are plain, for if one say he was in Warwick Goal for stealing of a Horse adjudged not to be actionable, and we may not presume, that there are thieves in England, and so judgement was arrested.   

Adam's against Ward.  
INtra. Trin. 21. jac. Rot. 1845. note that it was said, in an action upon the case between one adam's, and Ward an Attorney, that whereas one Hennings sued adam's in an action of debt, and adam's retained Ward to be his Attorney, and gave him warrant to plead the general issue, and Ward suffered the judgement by nihil dicit, that this was not any cause of an action, except it was by Covin, and for that if adam's had not laid in his declaration, that this was by Covin, he should not have recovered, and at another day it was agreed, that the Covin was not traversable by Plea, but only in evidence at the Bar.   

Cook against Cook in Dower.  
IN a writ of Dower between Cook and Cook they were at issue, and at the day of nisi prius the Defendant pleaded, that the demandant had entered, and was seized, and yet is seized since the last contrivance etc. Octabis Sancti Hillarii ultimo quo die continetur usque ad hunc diem etc. vicesimum diem Februari● which in verity was the day of the nisi prius, and it was demurred upon this Plea for two causes: the first was, because he had not showed that the Tenant was disseised, for otherwise it shall not abate the action, and to say that the demandant was seized was not sufficient, for though this implies so much that the other was disseised, yet here it ought to be expressly alleged, but the Court spoke nothing to this; but Winch thought this to be very good according to Dyer 76. there the entry is pleaded only, and yet good: but they resolved that the pleading of the continuance is not good, for it is from one Term to another nisi prius justiciarii Venerint, etc. and he ought to have precisely shown that: but the question now was, whether the demandant shall have judgement to have seisin, or have appetite Cape only: and justice Hutton said, that it was adjudged in Sir Henry Brown's case, that if a man pleaded an insufficient Plea after the last continuance, there the Plaintiff shall have judgement, as if the first issue had been tried for him: and for this he cited the new book of entries foe 57●, and this may not be a judgement by default, for they both appeared, and therefore he shall have the same judgement, as if the first issue had been tried for him; and it was said in this case, though the Defendant did demur generally, yet this is very good.   

The residue of Trinity Term in the 22. year of King James.  
GOdsel an Attorney, brought an action upon the case for words, and he laid in his declaration, that the Defendant spoke those words among other. Master Godsel is a knave, for he forged false deeds for which he was imprisoned at York, and should have lost his ears, and the jury found only these words, Godsel is a forger of writings, and deserves to lose his ears, and Hendon moved in arrest of judgement, that the words which are found are not the words in the declaration, for the words were there that he forged deeds, and it is only found to be writings, and it was adjudged in this Court, between Brown and Ellis, that for saying an Attorney had forged writings, no Action will lie, for they are too general, and besides it doth not at all appertain to him to make writings, and so for Nowel's Case, he is Cooped up for forging of writings, and it was adjudged not to be actionable, and so to say he is a forger of writings, by which he had cozened fatherless Children, the words are not actionable, because he did not say Deeds, and upon this motion and reason the judgement in this case was arrested.   

This case is Entered Hilary the 21. Jac. Roll. 550. Sir George Trenchard against Peter Hoskins  
TRenchard brought an Action of Covenant against Peter Hoskins, and declared upon an indenture bearing date the 19th. of September 44. of Eliz. made between john Hoskins father of the Defendant, and the Defendant on the one part, and the Plaintiff on the other part, by which they bargained and sold certain lands to the Plaintiff in Hammond which indenture rehearseth, that King Henry the eight was seized of this land in his demeasne, as of fee in the right of his Crown, & from him conveyed that to Ed. 6. who in the 7. year of his Reign by his letters patents bearing date at Westminster, he granted that to one Fitz Williams, & to Hilton in fee, as by his letters patents may appear, & they being so seized by indenture which bore date &c bargained and sold that to Henry Hoskins and to Proud, & also recited that Proud releaseth to the said Hoskins all his right, as by the said release may appear: and conveyed that to john by descent: and so the said john being seized he and his son Peter made this conveyance to the Plaintiff upon a good consideration, in which they did covenant with the Plaintiff in this manner, and the said john and Peter for them and there heirs do Covenant and grant to, and with the Plaintiff etc. that they the said Peter and john Hoskins according to the true mean●●ing of the said indenture, were seized of a good estate in fee simple, and that the said john and Peter or one of them, have good Authority to sell that according to the intent of the said indenture, and that there was no reversion, or remainder in the King by any Act or Acts thing or things, done by him or them: and the Plaintiff laid the breach that neither john nor Peter had a lawful power to ●●ll, the Defendant pleaded that john had a good power to sell that, according to the intent of the said indenture, notwithstanding any Act or Acts made by him or his father, or by any claiming under them, and upon that the Plaintiff demurred; and the case was now argued by the Court, and jones justice began, and said that his opinion was, that the Plaintiff shall be barred, the case being upon construction of covenants: and the sole question is, whether they are several covenants, or only one covenant, and I held that they are all one covenant, and those words for any Act or Acts do relate to the two other precedent sentences, and so it is all but one covenant, though this stand upon several parts, for if these words were placed in the forefront there had been no question, but that this had been but one covenant, and this made no difference when it is set before, and when it is set after, and the repeating of that had been toutalogie, for if I covenant I will build a house at Dale, Sale, and a vale of Brick, here Brick shall refer to them all, because it is tied in one entire sentence and covenant; and so if I covenant with you, that I will go with you to Canterbury, to Salisbury, and Coventrie here the word goes relates to all 3. as in the case of Sir Henry Finch, the rent was granted out of the Manor of Eastwel, and not of the Message lands, and Tenements lying and being in the Parish of Eastwel, or else where in the same County belonging thereto, and resolved that land which is not parcel of the Manor is not charged with the rent, because it is all but one sentence and one grant; and cited the case of Althams' case, and Hickmots case, where special words will qualify general words, where they are all in one sentence, and so I conceive they are but one covenant, 
Cook 8. & 9  especially in the intents of the parties, and upon the intents of all the parties of the deed, for when a deed is doubtful in construction, the meaning must be gathered from all the parties of that; but yet that is tied with two cautions, that it be not against any thing expressed by the said indenture; but only in case where it is doubtful, 
Cook 2. & 5.  so Cheineys' case and Baldewins case, a habendum will destroy an implied premises, 
Cook 4.  but not an expressed, and so in Nokes case, an express particular covenant qualifies the generalty of the employed covenant: like to the case which was 32. Eliz. in the Court of Wards, between Carter and Ringstead, 
Cook 8.  where Carter was seized of lands in Odiham, and of the Manor of Stoy, and there covenanted, that he would Levy a fine to his son of all his lands in Odiham in tail, and for the Manor of Stoyes, that should be to the use of his wife, now these subsequent words drew that out of the tail, according to the intent of the parties, and so in our case; and I also take an exception to the form of the declartion, for he conveys that to Fitz Williams, and to Proud, and Hoskins by the name of all his lands and Tenements which were in the tenure of Anne Parker, and did not aver that these lands for which the Covenant was made, were in her hands; and for that it is not good, and for these reasons I conceive the Plaintiff shall be barred.   

The argument of Hutton Justice.  
HUtton to the contrary, I hold that they are 3. several Covenants; and yet I agree the cases afore cited, and the reason is, they are all included in one sentence, for it is the care of the Purchasor, that he had an owner of the land before he purchase, for that which is the ground of assurances, that he is seized in fee, and hereafter that the Covents that this is free from incumberances made by him, and that he had good title to alien which strikes at the very root of assurances, and my first reason is, because here are several parties, and they covenant that one of them is seized of a good estate, and that they or one of them had power to alien that, for it may not stand with the intents of the indentures, to buy of him who had no title, and might not sell, and also the last Covenant is merely in the negative, that they have made no Act or Acts by which the reversion shall be in the King; and that is all one, as if the word Covenant had been added in every clause of the sentence, and Covenants in law may be qualified by express Covenants, but if a man made a lease for years upon condition to pay 20. l. in this case an entry by the law is employed for default of payment; but yet if it added that, if it be behind he may enter and retain till he is satisfied of the 20. l. now in this case this had taken away the employed Covenant and condition, but every express Covenant must be taken most beneficially for the Covenantee, and in Nokes case it is said, that an express Covenant controls an implied one, but he may use either of them at his pleasure and election: and I grant Henry Finches case to be good law, for there is not any clause or sentence till after the Alibie; but yet in Dyer 207. they are distinct sentences, and shall receive several constructions, and so here the matter being several they shall receive divers constructions, and he Covenanted that he was seized in fee, and that he had power to alien that, and this was to encourage the Purchasers: and for the form he needs not aver, that this was in the hands of Anne Parker, for he had confessed that in the bar, that he came lawfully to that, and besides the Covenant is broken, though he never was seized, and so I conceive that the Plaintiff shall have judgement.  
Winch to the same intent, it is true if it had been all but one Covenant, then if it had been no question this had not been broken; but I think they are several Covenants, like to the case of Sir Robert Napper lately adjudged; also the first two Covenants are in the affirmative, and the other in the Negative, and for that they ought to be answered with several pleas, and these kind of assurances are the Common assurances, and therefore they ought to be interpreted favourably for the Purchasers, and john was not deceived in these Covenants, for they brought down upon the deed an estate in fee, and it is also agreed if the word Covenant and grant had been divers times added to the several clauses, than they had been several Covenants, and now it is all one word, and made those to be several Covenants; and words of relation never will control that which is certainly put down before; and so he concluded in this case the Plaintiff shall have judgement to recover.  
Hobert chief justice to the contrary, every deed ought to be construed according to the intention of the parties, and the intents ought to be adjudged of the several parts of the deed, as a general issue out of the evidence, and intent ought to be picked out of every part, and not out of one Word only: and here Peter joined with his father to strengthen the assurance, and john had not only his own estate, but the estate of Proud; and it is plain he never meant to entangle himself with other Conveyances, than those which he and Proud had made, and I hold this to be no independent Covenant, and it is all bound with one clause (S.) for any Act or Acts made by them etc. and it is confessed if these words had been placed in the forefront, that then they should relate to all, and it is as clear as if they were: and the first reason is, that the intent appears only to undertake for himself, because he should but have part of the land, and for that he was to warrant his evidence, and to that end he was to deliver to him his title at large in the said indenture: and here he had made the Plaintiff privy to every several conveyance of that to inform the Purchaser of it: and will you also entangle him with a covenant, you might have taken notice of his title; and it appears to be the very intents of the parties, that you should take notice of the title, and inform yourselves concerning the same. Secondly, this is a sentence which may be taken both ways: and I say it is agreed that if it had begun with these words notwithstanding any Act or Acts etc. that then it shall be all construed by this, and I never saw any difference: I grant they are several Covenants in point of fact, but not in point of obligation, for there are not several words of binding; nay I say if he had released this last he had released all, but it hath been said, that one is in the negative, and the other is in the affirmative: but I do not value that; and it hath been said, that this is the Common assurance of the Realm, and if other construction shall be made, than no man shall be sure of his own, we had given him leave to say that no reversion nor remainder is in the King by any Act by him made, and the King may not have any reversion, and he seized in fee, also this clause standing indifferent, whether this shall be referred to all or not, and then the question is, how the Court will adjudge of that, for my part I take it that this may stand with the intent of all the parties of the deed; but take that as you take it, that this destroys all, for if he is absolutely seized in fee, what matter is where the reversion is, and yet if the reversion was in the Crown, and not by his Act you confess that may not charge him, which is expressly against the first Covenant, if this be distinct by itself, but take that indifferently, and all the parties will stand together: Nappers case hath no affinity with this, for questionless there were several Covenants, for in that indenture it did not appear what estate Sir Thomas Eearsfield had, and for that reason nothing might be collected out of that, but he had a present estate; but in our case all is contained in the body of the indenture, and Nokes case is a strong case, and stronger than the case at the bar is, for thereupon construction of all the parties of the deeds, the special warranty controls the general warranty: and the reason is no man will take an express special warranty when the intent is, that he shall have a general warranty: & there was a case lately ajudged between the Earl of Clanrickard and his wife against the Countess of Leicester, where the Lady pleaded that she was Tenant in Dower, where in verity she had the revesion in fee expectant upon a Term for life, and they conveyed all the estate the Lady had in Dower; and then they covenanted, that they would convey all their estate to the Lord of Leicester and his heirs, during the life of his wife, and then Covenanted that they would convey all their estate to the Earl of Leicester and his heirs for ever in the aforesaid land: and it was resolved, that though such Covenant will raise an use to the party who ought to have that, and so the reversion will pass if there had been no more words: now it was but during the life of the Lady for that third part, for the Covenant was but to strengthen an estate, and not to convey it, and so he concluded that the Plaintiff should be hard, and after it was said by the Court, that this case was not of weight to be brought into the Exchequer Chamber, and therefore the Court advised that the parties would agree; quere, for the residue in the Exchequer Chamber concerning that.   

Entered Hill. 18. Jac the case of Comendams. Richard Woodley against the Bishop of Exeter, and Mannering.  
RIchard Woodley brought a quare Impedit against the Bishop of Exeter, and Mannering who was Parson of the said Church, and he declared that Arthur Basset was seized of an acre of land, to which the said Advowson was appendent in his demeasne as of fee, and that he the 13. Octobris 13. Eliz. granted the next advowson to one William Manwood, who was then incumbent in the said Church, who by his will 20. November made one Harcourt his executor and died, by whose death the Church became void, the which was the first and the next avoidance after the grant, and Harcourt presented Cardon, and that the said Arthur Basset so being seized in fee 18. Octobris 17. Eliz. by his will in writing devised to john Basset his son the first and next avoidance of the Church aforesaid, which first and next avoidance happened after the death of the said Arthur Basset, and that the said john Basset was possessed of the said next avoidance, and the said Chardon being incumbent 29. of September 37. Eliz. he was elected Bishop of Down in Ireland, and he being so Elect, the Queen by her letters 37. of her Reign considering the smallness of the said Bishopric; that it was not able to maintain him in his episcopal dignity, ex gratia sua speciali concessit Lycensavit et potestatem dedit to the said Chardon Bishop elect, that he with the said Bishopric the rectory of Tedbome in comendum ad huc recepire et fructus de etc. in usus suos convertere disponere et applicare valeat et possit, habendum that in Comendam for 6. years, and within the 6. years he was consecrated, and after the Term of the 6. years the Church became void, per legis Anglie, and that the Queen by her prerogative presented one Bee who was admitted, instituted and inducted, and the Plaintiff conveyed from john Basset his title by his grant of the next avoidance, and shown that the said Church became void by the death of Gee, and that the vacation by the death of Gee is the next avoidance after the death of Arthur Basset, by reason whereof the Plaintiff presented, and was disturbed, and upon his decla, ration Edward's the patron demurred, and the Bishop claimed nothing but as ordinary, and Manering pleaded and confessed the seisin of Arthur Basset, and the grant to Manwood, and the presentation by Harcourt of Chardon, and the devise to john Basset, but he shown that after the death of Arthur Basset the Acre to which the advowson is appendent, descended to Thomas Basset as etc. and he being so seized the Church became void by the death of Chardon, who had the next avoidance after the death of Arthur Basset, and that this remained void, by 2. years after his death, by which the Queen presented by Lapse the said Gee, who was admitted &c. and Thomas Basset conveyed that to Edward's, and that became void by the death of Gee, and that he presented the said Mannering etc. absque hoc quod praedicta vacatio Ecclesiae praedictae post Mortem de Gee was the first and next avoidance after the death of Arthur Basset, as the Plaintiff had alleged, and upon this bar the Plaintiff demurred: and it was argued by the Council of both sides on several days, and in Michaelmas Term ensuing, it was argued by the Court, but because that Harvey was newly made justice he did not argue the case; but justice Hutton began.   

The argument of Justice Hutton.  
ANd justice Hutton after a recital of the case said, that his opinion was, that the Plaintiff should be barred, and in the first place it is to be considered whether the King had any title at all to present by the Creation of Chardon to be Bishop. Secondly, admit that he had title whether he had dispensed with that, and by his dispensation he had satisfied his prerogative. Thirdly, admit that the King had title, and that this was not satisfied with the Commendam, whether the grantee had lost his turn; and as to the first point it ought to be agreed, that when a parson is made a Bishop, that he is discharged of the Church by the Common Law, and so is the 45. Edw. 3. 5. and Dyer 159. petit. Broo. 116. and this is an avoidance by Session, and for any thing that I see in our books the King had not any title to present, except that he himself was pat●on, but because that did not happen fully in question here: I will not deliver any opinion: but I will say what our ancient books do lay 41. Edw. 35. adjudged that the King shall not present to a prebendary where the prebend was made Bishop, and the tithe which the King had to present, was by reason that the temporalities of the Bishopric, of which he was prebend was in his hands, and see the 7. H. 4. 25. a good case 11. H. 4. 37. Dyer 228. and for Brooks presentation 61. that is but the report of the Chancellor, who had that in presentation; but our Common Law doth not warrant any such thing, and then for the second point, whether the King had dispensed with his prerogative; and in the first place we are to know that these Commendams were at the first, but to see the cure served, and by the opinion of Pollard, the ordinary is to see the cure served, though that be charged with such rents, that none would have it, and for that Commendams were at the first good, but now if the King had title, then that began per the consecration, otherwise he shall never have it: and so is 41. Edw. 3. 5. if consecration doth not give that he shall never have it: and hereby his grant to hold that in Commendam he had dispensed with this prerogative, and if this had been granted to him for his life none will deny, but that he had dispensed with his prerogative, and shall never take advantage of that again afterwards, and no more in this case, for he is incumbent to all intents and purposes, for Fitz N B. 36. he may have a Spoliation, and yet in this case he is parson and Bishop, and now that the King may dispense with that it is not to be doubted; and I will compare that with the like cases A. 6. Eliz. Dyer 252. where the King granted the Custody of the land, and heir of his Tenant if he died his heir being within age, and this grant was to Cantrel, and it was agreed to be good, and Wardship is as Royal an ancient perrogative as any appertains to the Crown: and 3. H. 6. title grant 61. the King may grant the temporalities of the Bishopric before it is void, which in my opinion is Cousin German to our case: out of which book I conclude the King may dispense, and by the dispensation he is full parson, and this is for his life, for the King may not make him incumbent, except it be for life, like to the case of Dyer fo. 52. where the patron and the ordinary made a confirmation of a lease for part of the time which was made by the parson, and agreed that this shall stretch to the whole time, and no better case may be put then the case of Packhurst, in Dyer 22. 8. where Packhurst was incumbent of the Church of Cleave and was made Bishop of Norwich, but before he was created Bishop, he had a dispensation from the Archbishop to retain that in Commendam for 3. years, notwithstanding his advancement; and he resigned during the 3. years and issue there taken upon the resignation; and this case proves all the parts of our case, first that the King may dispense, and that by his dispensation he is complete person to resign: and if he do resign during the years, the King shall not have the prerogative to present again, for that was satisfied with the dispensation: and also when the King came to his prerogative by subject's means, he ought to take that as it falls, for otherwise he loses that quite, vide Bastervils case Coo. 7. and another reason is, if it be not satisfied, than the King shall have another which is mischievous, and this being a new case such precedent is not to have more favour than the necessity of the Law will require: and so my opinion is, that it is all one as if it had for life: and there is a good case 9 Ed. 3. 20. where the King had 2. presentments, vide the case; but it was upon another reason, but the case of 21. H. 7. 8. Frowike: where the grantee of the next avoidance had judgement to recover, and the incumbent resigned, so that it is the second presentment, yet the Plaintiff shall have the effect of his judgement, and he had a writ to the Bishop; quere the application, for I did not well hear that, but in our case, if the prerogative of the King was not satisfied; yet it ought to appear that when he presented Gee. he had no title, but that was an usurpation: and if the King was not satisfied, than the Plaintiff shall not have judgement, for then Gee was an usurper: and upon that declaration the Plaintiff shall be barred; but now for the last point, admit that the King was satisfied of his prerogative by his presentation of Gee, whether the Plaintiff had lost his course, & I think he had, & in the first place the words of the devise are the first, & the next avoidance which shall hap after the death of Athur Basset, now it hath been objected, that the King had the first by his prerogative, and therefore he shall have the second, & I think in this case Brook presentation 52. is a strong case, where a presentation was granted to one, and after to another, when the first is void, and ruled that the second grantee shall not have the second, and so Dyer 35. it ought to be taken according to the words, for otherwise he shall not have any, for modus et Conventio uniunt Legem, and the case of quare Impedit 152. proves something to this purpose, for a man had 4. advowsons, and granted the next which should hap of them to I. S. and he died, and the heir assigned the wife for her Dower one Manor to which the advowson was appendent, which first became void, and ruled that the Grantee shall not have that against the feme, and then it was moved by Thorpe, that he shall have the second, but Shared said certainly never, which proves that, if the turn of the Grantee was taken from him by the endowment of the feme he had lost that for ever: the like case is the 15. H. 7. 7. 14. H. 7. 22. moved by Mordant, that the Grantee of the third shall have the fourth, when the wife is endowed of the third, which case is brought to prove a case, which without question is not law, and that is that the King being Guardian of the Grantee of the next avoidance, and he grant that, in this case the heir shall have that at his full age, which without question is now law, for by the same reason his course may be the 20. but there are two rules from this, which seem to cross this opinion: one rule is that the words of the grantor shall be taken most strong against himself, and the other that the Grantor shall not be received to avoid his own grant, as it is said in Davenports case Coo. 8. but yet these rules are to be intended where the words are complete, for as the case is the 13. Ed. 3. Grant 65. that where the husband and his wife are joint Tenants for life, and he in reversion grant the lands only which the husband held, in this case nothing passeth, for the reversion was expectant upon a lease which the husband and wife held: nay, I will cite one case, where a man by his own Act shall avoid his own grant: in a quare Impedit Elmes against Taylor, where a man was seized of the Manor, to which the advowson was appendent, and he granted the third next avoidance, and after against his own grant he usurped, and it was adjudged, that by this usurpation he had gained the advowson, to be appendent to his Manor again, and that the Grantee had lost his course, and so the case in Dyer 283. where the Church was void, and the patron granted the next avoidance tunc vacant. to another, and this pro hac unica vice tantum: and there resolved, that the grant was not good, and that it should not extend to another: and so in our case it shall not extend to a second: another reason is, if the King had a prerogative he is bound, and every derivative estate under him, for he shall not be in better case, than the grantee, for he was bound by the law of the land: and for that it is equity, and it is justice that the estate of the grantee should be bound, and so in this case, like to the case in Plowden 207. and Dyer 231. where by Act of Parliament the possessions of an Abbot were bound, now if afterwards the Abbot made a lease for years, or granted the next avoidance, and then after they came to the King, he shall avoid the grant, for the interest of the Grantor was bound by Act of Parliament, and see the case of the university of Oxford Coo. 10. where a man before he was a recusant convict, he granted the next avoidance, and after he became a recusant convict, and then the Church became void, now the grantee shall not present, for his interest was bound by Act of Parliament, and so he must take it, and here it behoves him to take that, as it is bound with the prerogative of the King: and so upon all the matter he hath lost his title, and he concluded that the Plaintiff shall be barred.   

The argument of Justice Winch.  
WInch justice of the same opinion, but because his argument was much to the purpose of that with Hutton, and the Lord Hobert; therefore I will not Report that verbatim; and Winch said, I will speak to the last point which was moved by my brother Hutton, and I hold that where he had the first granted to him, now he shall have none at all, for it is punctually expressed that he shall have the first, and that shall not extend to the next which may be granted: but I grant if two coparceners had an advowson, and the eldest presented, and then she granted the next avoidance, that in this case the grantee shall have the next which may be granted, and the reason is, because she may not dispose of the estate of another; but if in this case the course be evict, by title Paramount of the King, than the grantee had lost that, and he cited the case of Brook presentation 52. and Gilbie and juxtons case, which was directly adjudged with the case of Brook, in which he was in council as he said: and he said that the book of 15. H. 7. is not to be relied upon for Law: and he cited, quare Impedit 154. and said, that the King in this case shall not have the presentation against the devisee, for he had a title settled before the title of the King, for though the prerogative of the King is more ancient, yet his title is subsequent, and he cited divers cases, where the title of the subject was before the title of the K●ng, and so the case of the 15. H. 7. was adjudged, that he may not out the grantee of the next avoidance, and I think there is much difference between a patron of inheritance, and he who had only a turn to present, for there if the prerogative shall hold place, he had lost all the fruit of his title, and he said our ancient books are, that the King shall not have any prerogative, except he himself be patron, but admit he had, than he had dispensed with that, for the Commendam may not be for years; and the Commendam did not make any alteration; but only a dispensation, and the case in Dyer shows that he remained parson to resign, and shows plainly that the King had lost it: true it is there are some few precedents of these Commendams: but there are none in our books, and for the assumption of the Bishopric, it is all one with England, for the 17. Ed. the third, the Bishoprics are donatives, and Fitz N. B. 169. 14. Ed. 3. 26. Plowden 44. and the books are the Common Law that we have, and he shown some precedents of these Commendams to the Court, and shown the case of the Earl of Kildare, where the incumbent had a Church with cure in England, and an other in Ireland, and void for the Plurality; and 16. Eliz. Thorn-Borrow Parsonage was void, when the incumbent was made Bishop of Ireland, and bancroft's case who was Deau in Ireland, and then was made Bishop of London, and it wa● holden, his Deanery was void, and 4. jac. Dod was made Bishop of N. and the Chancellor here in the right of the King presented to the living: and if a beneficed man do take a Bishopric, by the very taking of that his benefice is void, by the consecration clearly by the Laws of the land, for they are two incompatible benefices, and may not by any means stand together, and so upon the whole matter, in regard that by the assumption of the Bishopric, the benefice was void by the very consecration, and if the King had any title, this was satisfied by his Licence, and dispensation to hold that in Commendam, and so he held the Plaintiff shall be barred.   

The argument of the Lord chief Justice Hobert.  
HObert chief justice of the same opinion, and after a Brief Recital of the case, said that his opinion was, that the Plaintiff shall be barred, upon the most of his case (S.) admitting that Clardon did live above the 6. years, so that the King did present Gee in point of prerogative, yet the Plaintiff had not title upon the most of his matter, much less upon the viciousness of his pleading, and first we are to deal, with the avoidance of benefices, with their compatibles, and then with the Commendams of the King: and first I hold if a beneficed man take a Bishopric he hath clearly lost his benefice by his consecration, by the laws of the Land, for they are two incompatible benefices, and they m●y not stand together, but in this we must distinguish, in this manner, first a benefice may be void by subordination, as where one is made Bishop of the same Diocese in which his Parsonage is, & this is the very reason of Dyer 158. and 8. Ed. 3. 9 where a Prebend of the same Church is made a Dean, but otherwise if he be made Dean of another Church, and so my opinion is, if a Bishop be made an Archbishop of the same province, where his Bishopric is; nay, if there is Parson and Vicar of the same Parish with cure, and the Vicar accept the Parsonage, the Vicarage is void, for the Vicarage was derived out of the Parsonage, & our books say, it was a long time before they would give the Vicar any estate, and the reason was, because here was a Corporation erected without Lawful Authority, chief by the ordinary with the consent of the Patron: and this case hath not his fellow in the Law, and it is de novo that it is made, for ab nitio non suit sic: and that also had enabled him to bring an action against the Parson; and also it gave to him a freehold, but the chief reason was he eased the Parson in his duty, and therefore good reason he should have part in the profit, but in our case the reason of the subordination doth fail, for he is Bishop of another Diocese (S.) in Ireland, and therefore we ought to search for another reason, and without doubt the Law is all one in that also, and this is ratione eminentiae by reason of the dignity of a Bishop, and so is Packhursts case in Dyer ruled without any exception; and the case of the 44. Ed. 3. where one who had been prebend in England was made Bishop in Ireland, and ruled the prebendary to be void, and because the office of a Bishop and a Parson, do differ in the eminency, therefore a Bishop may not be a Parson, and now for the other point, whether the King had a prerogative or no, I spare to speak, because there is no necessity to draw that into question, for the Plaintiff had admitted that, and the Defendant had not denied it: but for the Commendam I do not make question but the King may make one, and so may the Arch Bishop, but the power of the Archbishop is potestas limitata, but the King had a double power, one by antitient title before any claim made by the Pope, and the other by the Statute; but now for the other point, I think it is a Commendam for years, and first I hold if the case had been that he should hold that in Commendam with his Bishopric in pristino Statu, that had taken away the power of the King to present afterwards, and the reason is plain, for the prerogative is to present to that which is void by the assumption of the Bishopric, which doth never hap, for by the Commendam he had that still as before, but here the Commendam is for years, and if he do also resign during the years, than this is void by resignation, and so is the case of Packhurst, that when he resigns during the years of the Commendam, the Patron shall have that, and not the King: and so also my opinion is clear, that if he had died within the 6. years limited by the Commendam, that the King shall not have that, for than it is void by death, and not by the assumption of the Bishopric, which book proves directly, that a Commendam may be aswel for years, as for life; but yet I do not hold that upon those temporary Commendams, if the Bishop continued Parson during the years, and made no Act to impeach, that then is a void cause (S.) the assumption of the Bishopric, and then when that is determined the supension is determined, and it is void by the original cause (S.) by the assumption of the Bishopric: and this Commendam doth not turn the second or first Patron to any prejudice, for the incumbent is still in by the presentation of the Patron, and the determination of the Commendam is not any cause of the avoidance of the benefice; but this is quasi non causa, which is causa stolida, as the Logicians do term it: but in this case the assumption is the cause of the Session, and it is like to the case of 25. Ed. 3. 47. where the King brought a quare Impedit against the Archbishop of York for a Prebendary; vide the case: and ruled in that case, that the confirmation of the King had not taken away his title to present, and the reason was, because the confirmation had not filled the Church, but continued that full which was full before, and here this temporary Commendam may not restrain the King to present afterwards, for this is not a presentation, and therefore may not take away the title of the King: and here the Plaintiff hath not well expressed it, for he hath not showed in this Court, that the presentation of the King was lawful, neither that Chardon held that by virtue of the Commendam for all the 6. years, but only that the Church became void, by the Laws of England, and that is not sufficient: and then if all before were for the Plaintiff, yet the question is, whether he hath lost his turn: and I think that he hath, omnis argumentatio est à notoribus, and the first is better known, than the second, and the second may not be the first, and there when the devise gave him the first, it is idle to say, that he shall have the second, for that departs from the meaning of the words, and in every grant the law implies quantum in se est, and no man may say, that the devisor did intent to warrant that from ancient Titles; and so the Lord Hobert concluded his argument, and said his opinion was, that the Plaintiff shall be barred, and judgement was commanded to be entered accordingly.    

Mich. 22. Jac. C.P.  

Michaelmas Term in the two and twentieth year of King James in the Common Pleas.  
DAvenport moved for the amendment of a Record, where a recovery was suffered of lands, in Sutton in the County of York, and the indenture of bargain and sale was by the right name, and the indenture of uses by the right name, but the writ of entry was of the Manor of Sulton, and upon the examination of the parties to be recovery, that the recovery, was to no other uses than is expressed, and mentioned in the said indenture, this was to be amended.   

Sheiss against Sir Francis Glover.  
SHeis brought an action upon the case against Sir Francis Glover, and shown for the ground of his action, that where one Harcourt was bound to the Plaintiff, in a Recognizance etc. upon which the Plaintiff took forth an elegit, and the Defendant being the Sheriff of the County, took an inquisition upon that upon which it was extended; but he refused to deliver this to the Plaintiff, but yet he returned, that he had delivered that, and upon that he brought his Action, and upon not guilty pleaded, it was found for the Plaintiff, and now it was moved in arrest of judgement by Sergeant Hendon, and the reason he shown was, because he laid his action in an improper County, for though the return was in Middlesex where the Action was brought; yet because the land lies in Oxfordshire, where the seisin ought to be delivered the place is Local, and for that the Action ought to be brought there, and now Sergeant Breamston argued that the Action was well brought in Middlesex, for this being but a personal thing, he may bring that in either of the Counties, as 14. Ed. 4. 13. Ed. 4. 19 expressly in the point, and to the second objection that had been made, that an Averment may not be against the return of the Sheriff, to that Breamston answered, that in an other Action an Averment may be against the return of the Sheriff, though not in the same Action, as 5. Ed. 4. but it was agreed to have a new trial by the preservation of the justices, for otherwise it seemed the opinion of the Court was, that the Plaintiff shall have judgement upon the reasons urged by Sergeant Breamston.   

Marry Baker against Robert Baker an Infant in Dower.  
Marry Baker brought a writ of Dower against Robert Baker an Infant, who did appear by his Guardian, and he pleaded that his father who was husband of the demandant, was seized of a Message and of land in Socage, and devised that to the demandant for her jointure in full satisfaction of all Dower, and he shown that after the death of his father, the demandant did enter into the said Message, and land, and was seized of that by virtue of the devise, and to that the demandant did reply by protestation, that he did not devise, and for plea confessed the seisin of the husband and her own entry, but she further showed that the Infant, who was then Tenant, was but of the age of 14. years, and that she entered as Guardian in Socage to the Infant, and disagreed to accept of that by virtue of the devise, and traversed the entire, and the agreement: and it was said by the Court, that his bar is good, though it had been more pregnant to have alleged, that she entered virtute legationis praedictae, and so was seized, and after it was said, that the Replication was very good without the traverse, for this was not expressly set down, but that was but merely the consequence of the plea, which in verity was not traversable.   

Hickman against Sir William Fish.  
HIckman had judgement for 600. l. and 10. l. damages against Sir William Fish, and he acknowledged satisfaction for 410. l. of the said debt, and damages; and after there was an agreement between them, that if Sir William did not pay the residue by such a day, that then it should be lawful for Hickman to take out execution against the said Fish, without suing of any scire facias, though it was after the year; and afterwards the money not being paid, Hickman sued forth a Capias ad satisfaciendum against Sir William Fish, directed to the Sheriff of Bedfordshire for 210. l. and now upon a habeas Corpus, Sir William Fish was brought to the bar, and Sergeant Crawley moved for a supersedeas for him, because the writ emanavit improvide etc. and by the Court it is a cause to discharge him of the execution, for the Capias ought to have issued for 200. l. only, and he ought to have sued a scire facias, though this was after the year, because the Process was not continued, but they said withal, it was in their discretion, whether they will grant a supersedeas, for they may put the Defendant to his writ of error.  
It was ruled, that if an action of debt was brought, and the venire facias to try the issue is in placito debiti, and so is the habeas Corpus, and the Panel; but in the jury Roll of the nisi prius, at the latter end of the jurata there it is placito transgressionis; and agreed in this case this is amendable, or in this case it is good without amendment.   

Wen against Moor.  
THomas Crew Serjeant did move in arrest of judgement, where one Wen brought an Action upon the case against Moor, and upon non assumpsit, it was found for the Plaintiff, and he said that the Colloquium was laid to be at Bourn in the County of Lincoln, and the venire facias was de Vicineto de Born, without the letter (u.) and for that reason, that they are several Towns, therefore error, for if the entire Town is omitted: the trial is insufficient; but the Court held this to be very good without amendment, and shall be intended to be the same Town.  
It was moved in arrest of judgement by Sergeant Finch, that where one had brought an Action upon the case against one, and shown that the Defendant in consideration of 12. d. given to him by the Plaintiff, he assumed and promised, that if the Plaintiff may prove that he cut quandam arborem, upon the land of Sir Francis Vain tunc crescent, that he would give to him 10. l. and this being proved by the Plaintiff, it was now moved in arrest of judgement, that quandam arborem is an individual tree, and it ought to be aliquam arborem, and another cause was alleged, because it was not showed, that this was upon the land of Sir Francis Vain, then growing, but only he had said growing, and that may be, for perchance he purchased the land afterwards, and before the Action brought, and so it might be growing, though not tunc crescent. at the time of the promise, but the Court etc. Winch, Hutton, and Harvey, seemed that the declaration was good, for they said there is no question if quandam had been out, this had been good, for it is the singular number, and he that certain, or be that incertain, yet by the verdict it is made certain, that this is a tree, and also those words tunc crescent. do refer to the time when the tree was field, and not to the promise.   

Holman against Sir Thomas Pope and Elizabeth his wife.  
Sergeant Hendon moved in a case, where an Action was brought by one Holman against Sir Thomas Pope and Elizabeth his wife as daughter and heir to Sir Thomas Watson, and pending the writ, Pope died, and he moved that the writ ought not to abate, because it is brought against her as daughter and heir, where the land is assets, in which the husband had nothing: like to the case of an Executrix, who brings her action in her own name, and the name of her husband, and pending the writ, the husband dies, the writ shall not abate, but Justice Harvey said, this case of Executors was adjudged against him, and Hobert chief Justice was of opinion, that the writ shall not abate, but day was given over in that case.   

Sir Thomas Holbeach, against Sambeach.  
IN the case between Sir Thomas Holbeach, and Sambeach in a replevin where a demurrer was joined, the case was this, one being Tenant for life, and he in remainder in tail, joined in a grant of a rent in fee out of that, and then they joined in the levying of a fine to a stranger and his heirs, and in this case it was said, that the estate of the grantee of the rent which before was determinable, is now made absolute, and a judgement was also cited to be in that case lately adjudged: to which the Court seemed to agree, and they said, if this be the point, they will give judgement presently.   

Crompton against Philpot.  
HEndon Serjeant moved in arrest of judgement, in a case for Philpot a crier of this Court, where one Crompton had recovered 40. l. damages against him, in an action upon the case, for words spoken against Crompton, etc. he innuendo the Plaintiff stole a ring, and had been hanged for that but for me, and it was said in the first place, that it doth not expressly appear, that the words were spoken of the Plaintiff himself, neither is this introduced by any precedent Colloquium as it ought, for otherwise the innuendo will not aid it: but in verity the declaration was, that the words were spoken de eodem Richardo innuendo etc. and also he said, that the words are not actionable, because that no value is expressed, but it was ruled, if that were but petty larceny, the action lies, but the Court gave no absolute opinion in the case, for they were willing to compound for the poor man.   

The residue of Michaelmas Term in the two and twentieth year of King James. Brown and Ware against Barker.  
BRown and Ware brought an action agaist Barker, and they declared, that whereas there was a suit depending between the Plaintiffs and other Coppiholders, of such a manor in the Chancery against Brook their Lord, and that one Woolsey was there Clerk, and that he for his fees, and for the procuring of a decree had disbursed 14. l. and that there being a Communication between the Plaintiff, and the Defendant concerning the same, he being a Coppiholder of the same Manor, that in consideration, that they would pay to Woolsey 14. l. he would pay to the Plaintiffs 40. s. upon request, and the Plaintiff shown, that they had paid the 14. l. and that the Defendant had not paid the 40. s. Licet postea saepius requisitus fuisset, and upon non assumpsit pleaded, it was found for the Plaintiffs, and now it was moved in arrest of judgement, by Crook Sergeant. First because he is a stranger to the suit, for he had not alleged, that the Defendant was a party, and then it is no consideration, but this was overruled, because they paid the 14. l. upon his request; the second exception was, that this postea saepius requisitus, was not sufficient in this case, because that he ought to express the certainty when, and the place where the request was made after the promise, and the 14. l. paid, and he said, there is a difference where a thing is a present duty, and where it is a duty upon request, or upon any Collateral Act, there the request is traversable, otherwise when it is a duty upon a contract, or upon an obligation, there Licet saepius etc. is sufficient, and according to this it was adjudged Hill 18. jac. Rot. 1894. debt upon an arbitrement between one Prideaux, and Walcot for the payment of 340. l. upon request, and it was alleged there, that he had not paid that Licet saepius requisitus, and it was adjudged, that in this case it was not sufficient, because it was not a duty presently, but upon the request, and the place where the request was made, aught to be put in certain, and he cited another case H. 16. jac. between Hill and Moor, adjudged in this point of assumpsit, as in our case, for where it becomes to be a debt payable upon request, there ought to be alleged a time and place of the request: and so H. 30. Eliz. one Welborns case, where a man promised to pay so much money for costs of a suit, when he should be requested to pay that, and there after verdict, judgement was arrested: and Hobert said, that the request is part of the cause of the Action, and for that it ought to be set down precisely, and there ought to be a promise broken, and such a promise upon which an issue may be taken.   

Bubbles case.  
IT was argued in the case of Bubble, who was Administrator during the minority of an Infant, that the Court of the Marches of Wales have no Authority to force such an Administrator to account before them, but only the Ecclesiastical Court: and if they intermeddle in any such thing, this Court may grant a Prohibition.   

The great case of Cooper, and of Edgar in Ejectione firm.  
I In Ejectione firm between Cooper and Edgar for divers lands in Norfolk, upon a lease made by Downey and his wife for 5. years, and upon the general issue the jury gave a special verdict to this effect; that one Henry Foin was seized ofland in his demeasne as of fee, and 9 April 34. Eliz. enfeoffed justice Windham and others, to the use of Anne his wife for life, the remainder to him and his right heirs in fee, and then Henry died, and that the reversion descended to Robert Foyne as son and heir to Henry, and he being so seized of the reversion 11. jun. 10. jac. by indenture made between Robert and Anne his Mother, who was Tenant for life, it was agreed that Robert should levy a fine of that in Trinity Term, and this fine was to be to the use of Anne and her heirs for ever, if Robert did not pay or cause to be paid to Anne 10. l. upon the first of September next, and if he pay than it shall be to other uses (S.) to the use of the same Anne for life, of that part of which she was seized, and of the residue to the use of Robert and his heirs; and they found over that the fine was levied to the same uses the same term; and they found over, that Robert died at the age of 20. years, and a 11. months, and this was before the first of September, and it was found, that one Anne, and Elizabeth under whom the Plaintiff did claim were sisters and heirs to Robert: and that they had not any notice of the use, nor of the indenture, and that they did not pay the money upon the first of September, but that afterwards they entered, and made the lease etc. and the Defendant claimed under Anne, who is now the Lady Cesar, and now if upon all the matter the Defendant be guilty was the question.  
And Crawley Sergeant argued for the Plaintiff, and the substance of his argument was in this manor, and first he said, that he conceived the points to be upon the special verdict, either to concern the ancient estate, or the new estate of the Lady Cesar, and here we are also to consider, whether the uses are well created and stand good, by the indenture, and by the fine without the help of the special verdict, and first I will not dispute, when an Infant levies a fine, and dies before the reversal of that, whether his heir may avoid that, and this is ruled in Cooks Reports 10. H. 7. 16. that this may not be, because that this trial ought to be by inspection, which now may not be, when he is deed, but that which I will insist upon in the first place is this, when an infant made an indenture to declare the uses of a subseqent fine, and he doth after that at another time levy a fine generally without expressing of any use in the fine, whether he may any wise enter, and avoid the uses of the same fine, or whether the law of necessity doth adjudge the fine to be to the same uses, without the help of any Averment, and I hold that he may avoid those uses, which do stand upon this difference, that it is incongruous to reason, that if the law admits a man to be of ability to levy a fine, then at the same instant, or after he may declare the uses, because it it is intended, that he is of full age, and if this had been a fine with grant, and render in which there is always an use expressed, as 26. H. 8. 2, that the grant of an Infant is absolutely void: but I do agree the case in Beckwiths' case of a feme Covert. 
Cook 2.  or of a man of nonsane memory, that their declaration of that subsequent use is good, because that the fine which is levied by them, is a perpetual Bar and conclusion, and by such means there disposal doth conclude them for ever: but it is otherwise of an infant, for he may avoid the fine by error during the minority, and the opinion of the book of 46. Ed. 3. 34. is, that if an infant do alien a rent, he may bring a dum fuit infra aetatem, which seems to infer, that the grant of an infant is not absoluely void; I answer that is but the admission of the Court, and 15. 7. 4. if an infant made a deed, and at full age he enrolled that, this is a conclusion for him to deny that, for this inrolment is an affirmance of that, and the reason of that is, because this is an affirmance of the same thing: but here the fine and the uses are distinct, and for that they are voidable, and for the other point the derdict had found, that the fine was levied to the uses aforesaid, whether that had established the uses, and made them unavoidable so long as the fine is in force, and I hold that it had not, for it is no more than ad usus supra dictos, and it had not bettered the uses, for they had no reference to aid the uses: like to the case of the Earl of Leicester in Plowdon, and the 5. Ed. 4. 41. and yet I grant that an Act of Parliament may make a thing void which was good, but so may not a fine, and so held the verdict had not aided that.   

The residue of Michaelmas Term in the two and twentieth year of King James.  
ANd now he argued to the third point, which is the great point, whether those words if Robert do not pay, make a subsequent or a precedent condition; and I hold that it is a precedent condition, and this interpretation stands best with the intentions of the parties, for before Ann had an estate for life, and Robert in fee, and if a present use will arise, than Ann shall have all presently, and leave nothing to Robert, but if the uses do forbear settling till the first of September, and arise according to payment, and all the doubt stands upon this word (if) which is some time taken as a limitation, as if a man gives land to another, and to the heirs of his body, and if he die without issue, then to another there (if) is a limitation, as it is in Bestons' case: but here this refers to a contingency: and therefore it is a condition, and saving the opinion of Hide and of Montague in Colthursts case: I hold that (if) there was a condition, and regularly (if) is a note of a precedent condition: and I will first prove, that by Logic, for the word are an entire Hypothetical proposition, (S.) the use shall be to An if etc. and in this is a Histeron proteron invertio ordinis partium, that the consequent should be before the Antecedent: in this manner if Robert do not pay 10. l. to Anne the first of September, than it shall be to the use of Anne, and so quelibet pars in Loco proprio redigenda est, and then if it is so, it is no doubt but this is a precedent condition, and he cited Wheelers case 14. H. 8. a man granted his Term, if he could procure the good will of his Lessor. and this was adjudged to be a precedent condition, and so is Bracton Lib. 2. cap. 6. if the condition is in futuris, than it is always precedent as to do talem rem si dederis mihi 10. s. there it is said, valet donatio sed suspenditur tanquam etc. and if we observe quite through Wheelers case this is always a note of a precedent condition, and yet I grant that in some case it may be a note of a subsequent condition, but that is quando impediatur etc. as in the principal case in Colthirst si vellet inhabitare there of necessity this aught to be a subsequent condition.  
Now the next point is, whether the condition is discharged by the the death of Robert before the first of September; and I hold that it is, for If distinguisheth as if the word had been, that if Robert do not pay; yet if he die before the day, he is discharged of the payment, for there was not any default in him, for all Humane contracts must give way to this Statute of mortality, Statutum est omnibus mori, and there was not any default in the heir of Robert, for he was not bound to pay, and therefore he needs not to do that being to his prejudice, but my chief reason is upon the general rule of all conveyances, for our law in its institution was a Law of mercy, and will endeavour to justify Acts made in obedience to that, and to excuse defaults of disobedience: and this is the reason of Master Littleton's case, if a feoffment is made upon condition, that if the feoffor pay 10. l. such a day etc. now that being to reduce an estate is not taken literally, but if the heir or executor pay that, this is sufficient to reduce the estate, and so it may be paid at other places, and to other Parsons, and so if the condition is to be performed of the part of the feoffee, there his feoffee may pay that.  
The next point is, whether any notice is requisite, and he held that there ought to be notice, because the heirs are ignorant of that; and in some case where a man is bound to take notice of that; yet by the Act of Law, that shall be discharged, as in Sir Andrew Corbets case: but now for that last point, 
Cook 4.  whether the ancient estate for life is gone, and it is clear, it was gone by the Common Law, but the question is, whether it is within the saving of the Statute, of the 27. H. 8. and I hold it is not, for this is repugnant to the estates conveyed, and to the uses limited: true if this had been a lease for years, than it had been saved, as is resolved in Lillingstons' case, 
Cook 7.  and Dyer 344. but this being a freehold confounds the nature of the fine if it shall be saved, for the nature of such a fine is to carry a Franktenement, and this is repugnant to the uses limited, for it is presently in Anne and her heirs, if Robert do not pay, and for that if the Franktenement is saved, there is no uses limited of that, which is contrary to the intent of the parties, and also here the Conusee took an interest by the fine, and for this it is out of the saving of the Act of Parliament, and so I pray judgement for the Plaintiff.   

The argument of Sergeant Finch Recorder of London.  
LEinuage Finch Sergeant, and Recorder of London contrary: and after a Recital of the case said, that I think judgement ought to be given for the Defendant, it is usually said, finis finem imponet Litibus, but here our fine had not that sense, for that had been questioned in all the Courts of Westminster, and now it is come to this Court, where we ought to have begun, for this is the proper Court to determine the right of inheritances, ergo spero sumus in Loco proprio; and therefore shall be at rest: and the case upon this special verdict stands upon two points. First, whether by the indenture and fine, the Lady Cesar had gained the inheritance. Secondly, if she had not gained the inheritance, whether she had kept her first estate, and for the first there are three pertinent points moved by my brother Crawley, to which I will add a fourth. First, whether the words make a precedent or subsequent condition. Secondly, whether the death of Robert had discharged that, and that is become impossible. Thirdly, admit that this is become impossible, whether the use will arise to the Lady Cesar, and I hold that it will arise to the Lady Cesar. Fourthly, whether any notice is requisite: and here first by the way, whether an infant may limit the uses of a fine, I will not argue that, for so it is resolved in Beckwiths' case; and so is it cited in Mary Portingtons' case to be adjudged, and there was one Lewes case 26. Eliz. before Wray and Anderson, and the reason is apparent, that when the law had adjudged by inspection, him to be at full age when he levies a fine, he shall never come after the fine is levied, and said that he was within age at the time of the limitation of the uses; nay, I will cite one case to show how cautelous and wary the law is in adjudging by inspection: Points case, where an infant brought a writ of error to reverse a fine, and day was given till Octabis Mich. to be adjudged by inspection, and before the day the Term was adjourned till Mensae Michael. but between Octabis Mich. and Mensae Mich. he came of full age, and yet upon Octabis Mich. upon the essoign day Justice Crook took his inspection de bene esse, and it was ruled, that now he may not avoid the fine, but he was forced to compound for the Land, and so the 6. jac. was one Randall case, who reversed a Statute by reason of his minority by audita querela, and the last judgement, for some error in that was reversed, and then he brought a new audita querela, when he was of full age, and he cited all the proceed upon the first, and adjudged that the audita querela doth lie, and so here, when the law inables him to levy a fine, the same inables him to declare the uses; and now for the first point, whether this be a precedent or a subsequent condition, for that is the fair Helena for which we fight, and yet I agree with my Brother Crawley, that in some Cases there shall be a transposition of Terms, and the parts in the proposition, in some cases (if) is a note of a subsequent condition, and for this the judgement of the case in Colthirsts case, where a remainder was limited si ipse inhabitare vellet, and to be a subsequent condition: and so I will not deny, but that if a man make a feoffment in fee, upon condition that if the feoffee pay 20. s. then he shall hold to him and his heirs, it is no question but the fee simple passeth; and it is a subsequent condition to reduce that; but secondly, this doth better agree with the intents of the parties, and for the first, the fine is levied to the use of the Conusee, and the Conusee is now in by the Common Law; but defeasable upon condition afterwards. Secondly, the intents of the parties plainly do appear, that he shall have the land to the use of her and her heirs, if Robert do not pay 10. l. and if he doth, then to other uses, now if no former use had been expressed by which this will result, those last words will, and I say no mean use will result; but it shall be to the use of the Conusee, and those words for ever, though they add nothing to the estate of Anne, yet they serve to show the intentions of the parties, that if he do not pay, than it shall be to the use of Anne and her heirs, and if he paid, then that she should have that for life; but it is absolutely against the intents of the parties, that she shall have neither, and for that of necessity to supply the intents of the parties, this shall be a subsequent condition; like to the case where a man levies a fine to the intent, that the Conusee suffer a recovery against him, now of necessity to have the intents of the parties fulfilled, the fine shall be to the use of the Conusee for this time, though none is expressed, for otherwise it would result, and so in this case, that the intentions of the parties may be performed, this shall be a subsequent condition.   

The residue of the argument of Sergeant Finch.  
NOw for the second point admit, that this is a precedent condition, whether by the death of Robert before the first of September, the condition is become impossible to be performed, because that the letter of the condition is, that if Robert Foyn pay to the said Anne etc. and I hold others are enabled in Law to perform that, and that Robert his heirs or Executors may pay that: and a thing which is implied or supplied by the Law is aswell, as if it had been expressed, as between Corbet and Cottow 39 Eliz. a bond to appear such a return of the Term at Westminster, and the Term is adjourned before the day to Hartford, and ruled that he ought to appear where the Term is, and so in many cases where the words are short and curtailed, the law will supply that: 41. Ed. 3. 17. a feoffment to two to infeof another, if one die, the survivor may make that, and yet it was not said that the Survivor may, and so is Brook joint-tenants 62. and conditions 290. words in the Copulative may be taken in the disjunctive, and there cannot be a more apt case, than Littleton foe 76. where though there are the words of the feoffor, and the feoffee only; yet the heirs of the feoffor, or the feoffee of the feofee, may perform that, for the words being so, the Law supplies them; and if there is any difference between our case and Littleton's, than our case is the strongest, for Littleton's case are to defeat an estate which shall be taken strictly, and if his case be taken so favourably, then much more in our case: and we see the words taken strictly, when they are to defeat an estate, as that 3. of Eliz. a lease was made for years upon condition, that if lessee do not pay, then that the lessor or his Assigns may enter, and afterwards the lessor granted the Reversion, and now adjudged that the grantee may not enter, because it fails of the word heirs in the reservation of the condition, and for that reason the lessor had but an estate for life in the condition, which he may not transfer to another, because he had not fee in the condition; and there was a case adjudged Pasch. 41. Eliz. where a man was bound to infeof the obligee and his heirs, and in this case the obligee died, and the Executors sued the obligation, and adjudged that they shall be barred, because he made an estate to the heirs of the obligee, and so is the principal case of the 10. H. 7. and Dyer 14. where a man covenanted, that he will build a house, his Executors may make that, and so here it may be performed by his heirs, and therefore it is not discharged: and now for the third point, admit, that it is become impossible whether the use will arise: and I hold that it will arise, and in that I take this difference between a fine or feoffment, and an obligation upon condition to make such Acts, for the condition of the obligation is taken only for the benefit of the obligors, and therefore if that do become impossible by the Act of the law the obligation is saved, but here the limitation of the uses, are the words of the Conusor, and therefore shall be taken more strongly against him; in which I put this case, if a man had two sons, and he do Covenant in consideration of natural affection, that if the eldest return from Rome by such a day, that then he will stand seized to his use, and if he do not return, than he will stand seized to the use of the youngest son; now if in this case the eldest die before the day, so that it is become impossible that he should return, yet that will not hinder the raising of the use to the youngest son; and so in Dyer 331. the limitter may not have any estate against his own limitation of his uses, for this is his own fact, and so in our case it is his own default to make such a limitation: and now for the fourth point, whether any notice is requisite to the heirs, and first I agree that in many cases, a man shall not lose a thing except he had notice; but there are two exceptions from this rule, upon which I will put some cases, and then I will apply them, and first the ordinary may present by laps, and he needs not to give notice, for it's supposed in law, that the ordinary will in 6. months see whether the cure is served or no; nay, if the patron was a Purchasor, and a stranger present, he had lost his inheritance, and yet no notice ought to be given: and the 12. H. 7. if the Tenant of the Lord do die without heir, and a stranger do enter, and Abates and dies seized, now the Lord had lost the benefit of the escheat, and yet perchance he had no notice of that, and so was the opinion of Dyer and Welch 4. Eliz. that if two Copartners make partition, in this case, the Lord ought to take notice at his peril; and secondly, when one is bound to take notice at his peril as in Westby's case; 
Cook 3.  the new Sheriff ought to take notice of the Execution upon the prisoners when he takes them, and so is the first of H. 7. 4. a man being bound to perform an arbitrement, he ought to take notice of that at his peril; but in our case here is a presumption in law, that he had notice, for he had the land from his ancestor, and in the same degree, and so the law doth intent, that he had notice of the conditions, and if he had not, it is the default of his Ancestor, that he had not left his deeds with him. Secondly, the heir is privy to the condition, this doth descend to him, and therefore he ought to take notice of that: and put the case, that an Action of debt is brought against the heir, upon the obligation of his father, and he pleads he had nothing by descent, and it is found that he had a reversion expectant upon a Term for life, of which he had not notice of, yet that will not excuse, for the law intends that he had notice, and that he shall be charged as if it were his own debt, and also the deed after the death of his Ancestor doth appertain to him, and if the deeds are kept from him, he may have an action for them, and besides, here no man is bound to give him notice, for if it should be given, it ought to be given to the heir, or to the Executors, for they may both save the land by the performance of the condition; nay, if there be 20. Coheirs, there ought to be notice given to them all, because they are to lose their inheritance by that, and it is not like to the case which was adjudged, where there are two obligors to make such an assurance as the obligee shall devise, there a devise to one is sufficient, because this concerns a personal thing, but otherwise when this doth concern an inheritance as here: but I rely upon the reason of the first forming of the deed, if I am not bound to give notice at the time of the making of the deed, I shall not be bound to give notice by any matter ex post facto: and yet I do agree that in many cases where a thing is certain at the first, and doth refer to some future agreement, that in such cases, there ought to be notice given to the party, as Hill. 12. jac. in this Court Rot. 109. where a promise was made upon a consideration, 
Trin. 22. Jac. C. P.  that the other will with draw his suit which he had in the Exchequer; that then he will give to him so much when he came into Somersetshire, and adjudged that the party ought to give notice when he came in to Somersetshire; but in our case every thing is certain at the time of the making of the deed 38. Assizes 7. if a feoffment is made upon condition to regrant to the feoffor and his heirs, if in this case the feoffor do die, he is not bound to regrant to his heirs without a request; another reason is, who shall give notice to the Lady that Foyn is dead, she is bound to take notice of that at her peril, and also if the Lady had died, who shall give notice to the Executors, that they may attend to receive the money, for if they do not attend, this is a peremptory refusal; and for that reason it is equity, that if no notice is to be given of one side, then there shall be none given of the other side; and so I conceive, that there doth not need any notice; and now for the last point etc. of the estate for life, whether if no fee do arise, whether she had lost her estate for life, and first this is no Forfeiture, for here he in reversion is party; but it is said, that this is extinct, but let us examine, if this had been before the Statute of uses, no more use will result then was before, and for the estate for life that is saved, and it was resolved Trin. 5. jac. that if Tenant for life grant his estate by fine to another, and yet he doth express no use, that it shall be to the use of the party, because that the Law intends that by this it is disburdened of the danger of waste: but in our case, the estate of the Conusee is saved by the Statute of the 27. H. 8. for this saves all rights, titles, possessions etc. of those who shall be seized to any use, and so was it adjudged in Cheny and Oxenbridge his case, that the Term for years was saved, but the doubt in that case, was not whether a Term was saved which he had to his own use, but that which he had to the use of his wife, and adjudged that this was saved; and 32. Eliz. it was ruled in the Chancery, between Tates and Willers, that if he in reversion do infeof lessee for years and two others, there it was ruled that the Term was saved, and so it was adjudged Trin. 17. jac. Rot. 246. Francis Prior's case, that where the lessee for years is, and he in reversion levies a fine to the lessee, to the intent that he suffer a recovery, here the Term is saved, and yet for the time the lessee was seized to his own use: but because that the fine was Preparatory to enable him to suffer the recovery; now in this case after the recovery suffered, that will look back to the first agreement of the parties, and so the Statute hath saved the Term: and for that reason, if the Statute do save a Term which is of small account, much more a freehold, and so he prayed judgement for the defendant, see more after.   

The case of Hilliard and of  entered Mich. 20. Jac. Rot. 1791.  
HIlliard brought a replevin against Michael Sanders for the taking of Beasts in a place called Kingsbury, and the Defendant avowed, and shown, that Sir Ambrose Cave was seized in his demeasne as of fee of Kingsbury, where the place in which &c. is parcel: and 14. Feb. 16. Eliz. granted a rend charge of 42. l. 8. s. 4. d. to one Thomas Bracebridg, and to the heirs of Thomas upon Alice to be engendered, the remainder to the right heirs of Thomas, and Thomas had issue John, and Thomas died, and then john his son died, having issue, Anne the wife of the Avowant, in whose right he avowed for the rent of half a year etc. 21. l. 4. s. 2. d. due at W. in Bar of which avowry the Plaintiff pleaded that true it is, that Sir Ambrose Cave was seized of the Manor etc. and he made the grant according, and that Sir Ambrose Cave died seized, and that the said Manor descended to Mary his daughter, as daughter and heir to him, who was married to one Mr. Henry Knowles, and shown that he was seized, and then shown that the 12. jac. it was agreed between the said Sir Thomas Bracebridg and Alice his wife, 
Mich. 22. Jac. C. P.  and the said Henry Knowles and marry his wife, that for the extinguishment and final determination of the said rend, that Thomas and Alice should levy a fine to Henry and Mary of the said lands and Tenements aforesaid, by the name of the Maniior of Kingsbury, 300. Acres of land, and of divers other things, but no mention was made of the rent, and this fine was upon Conusance of right, as that which they had etc. and also they released all the right which they had in the land to Henry and to Mary, and then shown that after the death of Mary, this land descended to two daughters, one being now married to the Lord Willoughby, the other to the Lord Paget, under whom the Plaintiff claimed, to which the avowant said by protestation, that there was no such agreement, and for plea that the rent was not comprised, and upon that it was demurred in Law: and now Sergeant Attoe this Term argued for the Plaintiff, and the substance of his argument was in this manner: Attoe said the case was, Tenant in tail of a rend charge, agreed with the Tenant of the land to extinguish that, and that he would levy a fine of the land to the land Tenant, which is upon Conusance of right, and upon release, which fine is levied accordingly: whether this cuts off the tail of the rent, and I hold that it will; and I do not find any opinion in all the Law against this, but only the opinion of Thornton in Smith, and in Stapletons' case in Plowden: which I do not esteem to be a binding authority: and the case is, Tenant in tail of a rent disseised the land Tenant, and levied a fine with proclamation of the same fine to a stranger, now said Thornton, this shall not bar the issue in tail of the rent, because the fine was only levied of the land, and he cited this to prove another case, which is Tenant in tail of land accepted a fine of a stranger, as that which he had etc. and he rendered to him a rent, and he said that his issue may avoid that rent, and this case I grant, because the rent was not entailed, but for the other case I openly deny that, and there is much difference between those two cases, for a fine levied of the land may include the rent as well as the land, but it is impossible that a fine of rent should include the land, and our case here is pleaded to be of the land, and of the rent, and a fine of the land may carry the rent inclusively, because it is a fine of a thing entailed; yea, it is not a new thing, that rent should be carried inclusively, by way of extinguishment in the case of a feoffment, and then á fortiori in a fine which is a feoffment upon Record, and especially when it is levied on purpose to extinguish the rent, and the Statute of fines is more strong, for that is of any lands, Tenements, and hereditaments any ways entailed to any person etc. but this rent is an hereditament entailed to the person who levied the fine, and this which is carried inclusively is within the Statute; nay, if a man had nothing in the land, yet if it was entailed to him who levied the fine, this shall bar the estate tail for ever, as if Tenant in tail made a feoffment to G. S. and after that he did levy a fine to a stranger of the same land, that in this case the issue shall never avoid this, and yet neither the Conusor, nor the Conusee had any thing in the land, and see for Archers case, 
Cook 3.  where the issue in tail levied a fine in the life of his ancestor, and a good bar, and yet there he had but a possibility, and so was the case of Mark-williams, 
Mich. 19 Jac. Rot. 763. C. B.  where all the distinctions were made, for Henry Mark-williams was heir apparent to his Mother who was Tenant in tail, and he levied a fine in the life of his Mother, and died without issue, and then his Mother died, and it was ruled, that this did not bar the sister heirs, because she may have that, and never make mention of her brother, but in our case, if the rent had been granted in fee, it had been no question, but that a mere release will extinguish that, and I think a fine with proclamation is as forcible to extinguish a rent which is entailed as a release is, for a rent in fee: another reason is this, is a fine directly of the rent, though this is by the name of land, and also this is upon Conusance of right etc. and also in that he released, and remised to the Conusees all his right in the said land, but a case out of Bendloes Reports may be objected, Tenant in tail accepted a fine of the land, and rendered that for life, ruled the issue is not barred: but first I do not allow this case to be good law, but if it be good law, the reason is, because he accepted only a fine of the land, and for that it only extends to that and not to the rent, as if a man is seized of 3. acres, and he accepts a rent of two of them, which render of them all, this is void for one acre; and lastly, by a feoffment of land by warranty a rent is discharged, 21. H. 7. and here I conceive, that the replication to the bar of the avowry is not good, for his plea is, that the rent in this case is not comprised, and that is a point in law, whether it is comprised or no; for if we do take issue upon that, we shall draw the trial here from the Court to the jury in the County, which is not good, and so upon all the matter I pray judgement for the Plaintiff in the replication.   

The argument of Davenport Serjeant.  
DAvenport Sergeant to the contrary, and he said, the case is as hath been recited, and the question is, whether the rent so granted in tail is by this agreement of the parties, and by the fine of the land, whether it hath extinguished the rent: and I hold this conveyance which only passeth the rent by implication, is no bar to the issue in tail within the Statute of fines, for where it is said, that a fine was levied of the rent by the name of the land, and made no mention of the rent, this will not carry the rent, and yet I agree this fine to be a feoffment upon record, and to be a bar against the parties who levied that, but not against the issue; if this had been before the Statute of fines, it is no question, this had been no bar against the issue, for it is the express book 13. Ed. 3. avowry 12. and 26. H. 7. 4. Tenant in tail of a rent made a feoffment in fee of the rent with warranty, and there it is said, that the warranty did not extend to issue quoad the rent, but now our case is upon the Statute of 32. H. 8. which saith that a fine shall be a bar of my lands, Tenements, and hereditaments any way entailed, but yet I conceive that this requires that the fine be levied expressly of that, and not by way of conveyance, and so the case of Smith and Stapleton by Thornton, who said that this was granted to him to be law, which must needs be meant it was granted by the Court, or by the Council of the other side, and the reason of that is, because it ought to be levied of that expressly, and there it is said, if Tenant entail of an advowson, do levy a fine of the nomination, that shall not bar the issue, and yet in effect that is the advowson, and because it is not levied of that expressly, it is not good, and then for the precedent agreement that is indeed, that the fine shall be for the extinguishment of the rent, and what then will that prove, that the fine was levied of the rent, and here the writ of Covenant was not brought of the rent, and yet I agree that agreements which do lead uses of fines, will qualify them against the very nature of the fine, as the case of the Lord Cromwell and Puttenham in Dyer: but I do not hold the agreement will extend over the nature of the fine, and therefore this being a rent in gross, it may pass by the name of land, and the averment here is contrary to that which doth appear upon the Record, and then not comprised is a good plea; but this shall not be tried by the Country, but by the Record; as 12. H. 7. 16. for it is only to inform the Court, that the party had mistaken the Law, and shall be tried by the Court, and not by a jury in the Country, as Attoe said, and so upon the whole matter of the case I conclude my argument, and pray judgement for the Avowant: see after Hill. 22. jac.   

The residue of Michaelmas Term in the two and twentieth year of King James. Ralph Holt and Rand against Robert Holt.  
RAlph Holt and Rand were jointly, and severally bound in an Obligation to Robert Holt, and he took out Process against them by several Praecipes, and he had two several judgements, and took out two several Executions against them of one Test, (S.) a fieri facias against Rand, and a Capias ad satisfaciendum against Holt, and the question was, whether the writs were well awarded, and whether when one is Executed the other is discharged, and Sergeant Crew urged 15. H. 7. 15. if after a Capias executed, 
Sir Gilbert Dabenhams case.  he may not have a scire facias against the same party, and he cited a case to be adjudged in the 13. year of King James, between Crawley and one Lidcat, where two joint obligors, and the obligee did sue them, and had two several judgements against them, and he took an elegit against one, and a Capias against the other, and he who was taken upon the Capias brought his audita querela by which he was discharged of the execution, for in so much that he had taken an elegit against one, he is concluded to take any Process against the other as well as against him, who had the elegit sued against him, and so is Cook 1. 31. and yet some books are, if the fieri facias is served for part, he may have a Capias for the residue, and so is the 18. Ed. 4. and ●0 Ed 4. 3. but here the fieri facias was executed for all, and for that no Capias ad satisfaciendum shall issue in this case: but Waller one of the Prothonotaries c●●ed a case in this manner, that if a noble man and another be bound in an obligation as before, and the obligee had such a judgement, as here in this case, he may have an elegit against the noble man, because that the first Process against him is by summons and distress, and he may have a Capias against the other, or a fieri facias; but Hutton denied this case, and said, that he shall have the same execution against both; for as this aught to be one satisfaction quo ad ec. sati factionem, so this aught to be one for the manner also, and though in this case, that the Capias was not well awarded; and Harvey justice agreed to that.   

Methol against Perk.  
MEthol brought an action upon the case against Peck upon an assumption, and he declared that in consideration, that the Plaintiff would pay unto one Plaford 52. l. to the use of Peck such a day etc. Perk promised to redeliver his bond in which he was bound in the said sum, when he should be requested to that; and he said that he paid the 52. l. to the use of Peck, and that the said Defendant had not delivered the said obligation licet saepius postea requisitus (fuisset,) and upon the issue of non assumpsit, it was found for the Plaintiff, and now it was moved in arrest of judgement, because he had not showed the day, and the place of the request, but the Court etc. Hobert, Hutton, and Harvey were of opinion, that judgement shall be given for the Plaintiff; and yet they agreed he might have demurred upon the declaration, and that was good, and also they held, if that had been generally saepius requisitus etc. it had not been good; because the request is parcel of the promise, and therefore aught to be precisely set down to be after the promise, and the payment of the 52. l. but here they said, for the time it is very well expressed by this word postea, and there is not any defect but only in the place, for postea implies, that this was after the promise, and payment of the money; and Hobert said, that all the points of the declaration quoad the substance are good, only it fails in the place where the request was made, and this varied by the issue, and all the rest is sufficiently alleged to ascertain the Court, that the promise is broken; and Hutton said, that in his opinion such a request ought to be given in evidence; but Harvey said, that though the request is parcel of the promise, and that ought to be sufficiently alleged, and so it was here, so that the Court may give judgement of that, and he said, that postea requisitus had relation to the time of the promise, and the payment of the money: and judgement was given accordingly for the Plaintiff, in the said case.   

Sir John Davis privilege denied.  
NOte that this day being the 26. of November, Davis who was the King's first and chief Sergeant came to the Bar, and he offered to move the Court, and they refused to hear him, because his course was gone in his absence, and he claimed his privilege, that the King's Sergeant might move at any time: but justice Hutton answered that 20. years ago, when he was made Sergeant, there was no such custom, or privilege, except they moved for the King; and so said justice Winch also, and he said, that though of late time such favour had been given to them; yet that was ex gratia Curiae, and this was an evil custom, especially now when the King had five Sergeants, and he used to have but two, and so they told him they would not allow of any such privilege, or prerogative, neither would they hear him upon any such account, and they said perchance of favour they might hear him.   

Austin against Beadle.  
AUstin brought an ejectione firm of lands against Beadle, and declared of a lease made at Haylesham, and the Defendant pleaded, that Haylesham praedict. ubi tenementa jacent, is within the five Ports, where the writ of the King rans not, and so he pleaded to the jurisdiction of the Court, and the other replied, that the Town of Haylesham was within the County of Sussex absque hoc, that it was within the five Ports, and upon that the Defendant demurred, and it was argued by Finch, that the traverse was not good; and he said, that he ought to have traversed, absque hoc quod villa de Haylesham ubi tenementa jacent is within the five Ports, for the verity was that it was part in the five Ports, and part in the County of Suffex, and the land lies in that part which is in the five Ports; and for that he may not take issue upon that traverse, for than it will be found against him, and so he said it was held 50. Ed. 3. 5. that the Plaintiff in trespass there in his declaration and replication he distinguished the part, and so the Plaintiff ought here, but it was answered by the Council of the other side, and resolved also by the Court, that the traverse is good, and that the Bar is naught, and if the Plaintiff may not traverse in other manner, and that the Defendant in his Bar, he ought to have made his distinction, and every plea which goes to the jurisdiction of the Court, shall be taken most strong against him who pleads that, and the traverse here ought to be to the Town, and not to ubi which was idle, for the law said as much, and we do not imagine any fractions of Towns, and so I conclude the Plaintiff ought to have judgement.   

Ashley against Collins.  
IN a case between Ashley and Collins, it was agreed clearly by the Court, that if an infant made an obligation, and after he being sued upon that, an Attorney without warrant suffers a judgement by non sum informatus, that this was no cause to grant an audita querela, and upon the opinion of the Court, the audita querela was quashed, for it was said, he shall have a writ of error if he were within age, and if he was not then he shall have his writ of deceit against the Attorney.   

Anthony Gibson against Edward Ferrer.  
ANthony Gibson brought an Action of debt of 1000 l. upon an obligation made the 11th. of December 21. jac. and the Defendant came and demanded Oyer of the condition, and the condition recited that, whereas there were differences between the said parties, concerning some accounts, now they had for the final determination, of them they had put themselves upon the award, and arbitrement of Gerrard de Malines to be made before the last day of December next, if therefore the said Edward Ferrer his Executors etc. shall and do for his and their parts perform, stand to and keep the said Arbitrement of the said Gerrard de malines, that then etc. quibus lectis et auditis idem Edwardus dicit quod praedictus Antonius Actionem suam versus cum habere non debet; because he said, that the said Gerrard de malines did not make any Arbitrement: and the other replied and shown an Arbitrement, which he did award to Gibson interested to be paid for money among divers other things, and upon that the Defendant did demur in law, and it was argued by Bridgman Sergeant for the Defendant; that Arbitrement is void, for it is for the payment of interest; and I hold that Arbitrators who are judges indifferently chosen, may not award interest to be paid, for that is an unlawful thing, for all the Statutes which have been made concerning usury, have branded that to be unlawful, and those differences which are submitted, aught to be intended to be lawful differences, and he cited a case in the King's Bench, where an action upon the case was brought, upon a promise made upon consideration, that if the Defendant will forbear the principal together with the interest, that he will pay that at a certain day; and it was adjudged, that the action lies, because there was no certain interest set down; for he said, if the certainty of the interest had been set down the consideration had not been good; and than if this thing be so unlawful that a man may not bind himself by his promise, than á fortiori Arbitrators may not award that; and for another reason it is void, because that interest is awarded, for the time after the submission was made, and so I pray that the Plaintiff may be barred.  
Hendon contrary, I hold the award to be good; for though that shall be void for the interest, yet it shall be good for the residue, and then the non payment is a breach of the condition, for where an award is made for a thing against the law, and for another which doth stand with the law, this is good for one, and void for the others, so here. Secondly, this award is not for interest, but rather for the damage for the forbearance of the money; but admit that this were for direct usury, yet that is not void; my brother Bridgman had cited a case where an assumpsit for usury was void, I know well what the judgement was; for I was of Council in the case, and much was said in that against usury, and Glanvil was cited Lib. 9 cap. 14. which said, that an usurer did forfeit his goods; but that is to be intended of such, who live by the common oppression of the people; and there was not any precedent found where a contract for usury was void: Noy, the 26. Ed. 3. 24. debt is brought for money given for usury, and admitted, and the Statute of the 13. Eliz. and 37. H. 8. which were made against usury, shall be frivolous, if such contract shall be merely void; for they made only such contracts to be void, as were made for above 10. in the 100 and so I pray judgement for the Plaintiff.  
An action upon the case was brought for calling one thief, and the other did justify the words, and said that he was possessed of a Heifer which was privately taken from him; and that upon search he found that in the possession of the Plaintiff with his ears cut off, and marked with the Mark of the Plaintiff, and it was ruled, that this was not a good justification, for the matter is not sufficient; but he ought to have expressly averred that the Heifer was stole from him, and accordingly it was adjudged.    

Hill. 22. Jac. C. P.  

Hillary Term in the two and twentieth year of King James in the Common Pleas.  
THe residue of the case between Cooper and Edgar, and now this Term Serjeant Crook argued the case for the Plaintiff, and after a recital of the case, he said that the general question is, whether the Lady Cesar had any estate by this fine, or whether the old estate for life remains; for if she had the one or the other, than it shall be against the Plaintiff, and he said the points which I will insist upon are four. First, whether these words do make a precedent, or a subsequent condition; for if the uses do not arise till there be a failing of the payment, than it is on my side, but if the uses do arise before, then indeed it is against me, and I hold that no use will arise till there is a default in payment; in which I will observe, that the words are all in one period, and one sentence, and till the first of September the use will remain in Robert Foyne; for here the same is voluntary, and it is without any consideration, and then what doth the Law say till the condition was performed, the use was in him and his heirs; the grand doubt is, whether (si) here made a precedent or a subsequent condition, and I hold that (si) is always a note of a precedent condition, if it may stand with the law, and with the intentions of the parties, but if it doth cross either of those, then that is a subsequent condition, and yet I agree if (si) is annexed to an estate which passeth by livery, than this is a subsequent condition, and the same if it be annexed to a grant which is executed, but if it is annexed to a grant which is executory, then that is a note of a precedent condition, and so is Bracton lib. 2. fol. 190. where there is an example, and the placing that first or last is not material; and in the case of an use which is executory as this is, there till the (if) is performed nothing will pass; Plowden 172. nay, the case of 14. H. 8. by Brooks and by Brundwel, if I covenant that another shall have my land when he marries my daughter, no use will arise till he marry her, and the case of Colthirst proves my difference both the ways, for the lease was made to Henry and his wife for life, the remainder to William si ipse inhabitaret etc. and if he die in the life of Henry or his wife, that then it shall remain to Peter, there the first (si) is a precedent condition, for if he do not die in the life of them, than Peter shall take nothing by that, and to this purpose there is a notable case 13. H. 6. 7. where a man made two his executors, and if they did refuse to administer, than he made two others within 3. months after his death, and ruled that in the mean time they are not executors; and yet (si) was placed in the subsequent place there, and there was a case H. 33. Eliz. between jenning's and Cawman, where a man made his will, and devised his lands to his son for 3. years; and afterwards appointed, that if his wife whom he made Executrix did not suffer him to enjoy that for 3. years, that the son shall be executor, and the question was, whether the feme was executor in the mean time, and there Anderson said, that this was a precedent condition; but the other justices were against him, because it was a thing of continuance, and there they agreed the case of Colthirst, that the word si ipse inhabitaret are a subsequent condition, because it is a thing of continuance which may be infringed and broken every year; and there was a case in this Court 29. Eliz. Rot. 854. between johnson and Castle, where a man devised his term to his youngest son, if he lived to the age of 25. years, and did pay to his eldest brother so much money, and agreed no estate passeth till the age of 25. years, and payment of the money, and the reason was, that a devise executory may depend upon a precedent condition, and so here the use is executory, and nothing passeth till there is a failing of the payment: like to the case of the 15. H. 7. where a grant is made upon condition, that if the Grantee perform such a thing he shall have such an Annuity, there nothing doth pass presently, and so 21. Ed. 3. 29. where a man was bound in an obligation, not to infeoff when he came to the house of Ancestor etc. vide the case, and here in our case, because the condition is, that if he do not pay that, than she shall have it to her and her heirs; therefore it is a precedent condition, and if the use had been limited to him if he marry his daughter such a day, in the mean time no use will arise, because the limitation is to him upon a thing not executed, and this being all in one sentence, no use will arise in the mean time; the second point is, whether the heir of Robert Foin may pay that, or is bound to perform, that then the law dispenceth with that; for it is limited if Robert do not pay, and so it is personal to him, like to the case in Plowden, when a thing is reserved to be made by the person of a man, no other man may perform that, neither the heir nor yet the Executor: as in Dyer 66. 8. H. 4. 19 21. Ed. 3. 29. where the heir is not named, he is not charged, and 10. Ed. 4 12. 11. Ed. 3. 16. and so in this case, because it is personally limited to Robert Foyn: and ergo if he do die, there the law will not compel the heir, and that is the reason of Littleton's case, fol. 76. for there though the father Mortgaged, and the son is not named in the condition; yet because he had an interest in the condition, he may perform that, and so the case fol. 77. the feoffee of the feoffee may perform that, though it is annexed to the first feoffee only, and this is for the salvation and safety of his estate, and in the first case being in A. Mortgage the law said, that the heir shall not be prejudiced: but when it is a voluntary Act, and in point of discretion to the father, there the son may not perform that, and here the law had prevented the father in the point of election, ergo it is discharged, and it is like to the case of the Countess of Arundel, where a thing is annexed to the person of a man, no other may perform it, and so here the heir may not perform that, for it is discharged by the death of Robert. Thirdly, admit that he may perform that, than the question is, whether default of notice may not excuse, and here the Lady was a party to this condition in the indenture, and here the ignorance of the fact may excuse, and when the law doth put a man upon a necessity, there it will excuse him as 44. Ed. 3. 61. and 50. Ed. 3. 39 and so the Law will not impose a necessity of notice upon him.   

The residue of the case of Cooper and Edgar by Sergeant Crook.  
But Crook said, that he being heir is bound to take notice; but for answer to that I will cite you one express case, Francis case Cook 8. for there the heir was not bound to take notice of the proviso in the feoffment without notice given to him of it: Winch, that case directly complies with our case, and so Farmer's case Cook 3. lessee for years in possession levies a fine, that doth not bar the reversioner, because he continued in possession at the same time, and he had not notice of that, and here if the Ancestor had not died seized, there had been some colour that he might have had notice; and this differs from Littleton's case, where the heir may pay the Mortgage, that in that case he ought to take notice at his peril, because he did not die seized: 
Corbets case.  and see 4. Coo. 8. where land is given to executors to take the profits, there resolved that default of notice doth not hurt them, but they shall hold against the heir: now for that last point, whether the estate for life is saved by the Statute of the 27. H. 8. or whether it is gone by the acceptance of the fine, and I think it is gone, and yet I agree, if it had been lessee for years, it had been within the saving of the Statute, because he is but a conduit pipe to convey that; but in our case when it is by limitation of the use, than it will not be saved, because that it is by her own provision that the use is so limited to her, and so the law will not aid that; and by the common Law it is an express determination of the estate: 1. H. 7. also the cases of Tenant for years, being within the saving of the Statute doth in no sort help this case, for it may well stand with the estate; but out of the freehold the uses do arise, and besides the law will not provide for him, who had not provided for himself: as 5. H. 7. 7. if a man made a gift entail rendering rend, the Law will not raise any other tenure, and it is a rule in law, that a man shall not take an estate by implication, where he had expressly limited an estate to himself, and to that purpose there was a good case Hill. 13. Eliz. between Richmond and Bowcher, where a lease was made rendering rend to the lessor his executors and his assigns, and there the lessor died, and it was ruled in that case, that the Executors nor the assigns shall not have that, nor the heir, for it was not reserved to him, and in 16. jac. one Farmer's case, where such a lessee for years took a feoffment with an intent to suffer a recovery; but he continued in possession two terms after, before he suffered the recovery; and yet it was adjudged the Term for years was saved: but here he being Tenant of the freehold, this may not stand with the limitation of the uses: and so I pray judgement for the Plaintiff.   

The argument of Davenport Serjeant.  
DAvenport to the contrary, after a Recital of the case said, that he thought this to be a subsequent condition, for here are two uses limited, and so there is two conditions for the first (if) if he do not pay this is subsequent, and the estate doth proceed; but the other is precedent, and the estate is subsequent, and the sole difference when (if) maketh a precedent, and when a subsequent condition is upon the words, for in this case words make the case, and if the estate is limited first, and then the condition seems annexed in words to determine that, in that case it is a subsequent; but if the Act is first appointed to be made, and then the estate is limited by express words, there the estate will not begin till the tunc is performed; and so is the very difference 14. H. 8. 22. and there the principal case is adjudged to be subsequent, and upon that difference is 15. H. 7. and Coo. 7. where the estate is first limited, and then the condition is after that, and the meaning of the parties was, that the Lady shall have the fee if the other will not redeem that; and I desired to be tried by no other cases, than those which my brother Crook had cited; Marry Portingtons' case (si) is a proper word to determine an estate, and then the estate ought to be before; and for the difference between things executed, and things Executory under favour that is no difference, but that is as the words are placed; and I deny the case of Executors put by my brother Crook, and so I say it is a present estate, but it is defeasable after by payment: but now for the second point, whether it was discharged by the death of Robert, or whether the heir may pay that, and I think that its impossible to avoid; Mr. Littleton and my brother's difference of Mortgage is no difference; and Littleton saith, that the heir may perform that, because he hath an interest in the condition; and the reason is not, because he is charged, and so the case of the feoffee may perform that, and yet in both cases it is annexed as personally as it may be; and Sect. 337. no mention is made of the Mortgage; but it's in this case, if the condition had been that a stranger should pay that, than this is merely personal: and so is Hill. 28. Eliz. between Waltham and Ashworth, if an heir is bound to perform a condition, than a stranger may not perform that, but any who had an interest as Guardian in Soccage, or Chivalry; and here by reason of the interest of the heir, by the nonpayment he had broken the condition, for this is an hereditary condition or limitation, by which the heir had an interest: now for the third point, whether he is bound not having notice; and I do conceive that, because the notice is ancestrel, and he was party to that, and so there was an original notice upon the agreement which is also hereditary, and descends to the heir; and that shall force him to take notice of that at his peril; but if it had been collateral to the father, there I grant that will not bind the son without express notice, as in Francis case: for there was not any Act by which the father was bound to take notice, and I desire no better case, than Sir Andrew Corbets case. Fourthly, the estate for life is not drowned by the common law, neither by the Statute, for it is grounded upon the Condition, and so there is not any Surrender in the case, and when an agreement is, that such a fine shall be levied, now that shall be understood to be meant only of the reversion, and he cited Sharingtons case, where Tenant for life levied a fine upon conusance of right, to him in reversion to the use of others, there because it might not appear to be otherwise, the estate of the Conusee was saved: and Farmer's case where a lease was made to Farmer for years rendering rend, and after he bargained and sold the reversion for 41. years, and then made an indenture between the lessor, and the lessee, and one of the bargainees, that the recovery shall be suffered to the use of them and their heirs, and adjudged the reversion for years was saved: and so I pray judgement for the Defendant.   

The argument of Sergeant Finch Pasch. 1. Carol.  
ANd the following Term the case was argued by Henage Finch Sergeant of the King for the Plaintiff, and he said, the first point is, whether this made a precedent or a subsequent condition, in which there had been much Logic used, and it had been said, that it is a rule in law, that when a state is first limited, and there are words of condition to divest, that in that case there is a subsequent condition which ground I will not deny; but I deny that here the estate is first limited, for though that seems to be in words, yet it is not in the intents of the parties, but here first I will note an ordinary difference in our books, that proviso and sub conditione are notes of a subsequent condition, (si) of a precedent condition, as appears by Mr. Littleton; and the reason of this difference is, because proviso and sub conditione make a full proposition, and so doth not the word (si;) and I compare that with Henry Finches case, where aut and alibi never begin a sentence, and so (si) never made an entire proposition: but the proposition is, that the fine shall be to the use of the Lady, if Robert do not pay, which is an Hypothetical proposition knit with a copulative conjunction, and then the antecedent ought to be (si,) for all doth depend upon that, but it hath been objected, that this is not an antecedent, for it is put in the last place, but I say put that where you will (si) will rule the sentence, and will have a construction in the first place; (S.) if Foyn do not pay 10. s. the first of September, then that shall be to the use of the Lady, and her heirs, and there are many cases, where (si) being so transposed will make a precedent condition 1. H. 4. 4. where the judges will receive the Attorney of the vouchees if his Master will consent, there he is no Attorney till he do assent 3. H. 6. 71. per Martin a man made another his Executor, if he will be bound to I. S. in that case before he is bound to I. S. he may not maintain an action as an Executor; and so by those authorities 7. Ed. 3. 41. 14. H. 8. Whistlers case, and Dyer 159. now for the second point, whether by the death of Foyn the condition is discharged; and I hold that it hath discharged that, and I hold Littleton's case, where a day is limited, and where not will aid me: and I conceive that in many cases, where Acts are not judicially annexed to the person of a man, yet they may be discharged by the death of the parties, if they are collateral Acts; and put the case, that the use had been so limited, that if I. S. do not pay so much money before etc. now if I. S. do die before the day, it is no question but that the condition is discharged; and also if it had been limited in this manner if Foyn do not pay this to a stranger, there by death also it is discharged, and the difference I conceive is, when the money is to be paid as a duty, and where as a penalty, and this difference I learn of Mr. Plowden in the argument of Sir Thomas Treshams' case reported by the Lord Cook, and also by the Lord Dyer, and by Dyer it is said, that such a sum of money to be paid to the feoffs is not my duty, and therefore I say this collateral Act is merely discharged by the death of Foyn: and Littleton seems to imply so much, for in all the cases of Mortgages, he saith, that the Executor or heir may pay that, but when he comes to such a feoffment made to the feoffee to pay money on his part, he said, that if he alien the land the party himself or the vendee may pay that, but not the heirs, nor Executors of the feoffees; and there was a case 18th. Eliz. in this Court, A. levied a fine to B. and his heirs upon condition, that if he pay so much to the son of A. when he comes to the age of 18. years, then to the use of B. and if not, to A. and his heirs, and the son died before the day, and the opinion was, that B. shall have that: now for the last point, whether the estate for life is gone, and I hold that it is, and here he agreement of the parties hinders the operation of the law, and that law will not provide for him, that provides not for himself, and the Lady herself was party to the limiting of the uses, and she covenanted that she will be seized by virtue of the fine, and under the condition in the indenture, and so it is a plain Surrender of her former estate, and so I pray judgement for the Plaintiff.   

The argument of Sergeant Hendon to the contrary.  
HEndon contrary, there are 3. points. First whether this be a precedent or a subsequent condition, and I conceive it is subsequent, and here the indentures being but to declare the uses of the fine, and not to create any use, ergo it shall be guided by the intents of the parties appearing in them, and so is the Earl of Rutland's case Cook 5. and Dyer 357. and Shelleys case, and the meaning of the parties was not to raise any use to Robert, but only a possibility to reduce that by the performance of the condition, and first it is here said, that the Conusee shall be seized to the uses hereafter expressed, and under the conditions, and then the use ought to preceded the condition, for no man may stand seized under the condition, except the condition is subsequent to the use to arise. Secondly, when is the use to arise to Robert, surely when he pays 10. s. and then in the mean time the use is to the Lady and her heirs, for tunc had here relation to, when as it is said in Boles case Cook 3. and in Grants case cited in Love's case Cook 10. and 17. Ed. 3. 1. all which cases prove that t●en had relation to when, and before this when he had nothing, and this doth appear to be the agreement of the parties; and now for the words themselves, I take it that they make a subsequent condition, and so it is here limited in intention, and for that in matter also; and it is said in Colthirsts case in Plowden, that if the estate doth first pass reducible upon condition, than it is subsequent, and here it is limited to the Conusee and his heirs, if the Conusor do not pay: but here it hath been said is inversio verborum, and the consequent is placed before the Antecedent, and this hath been proved by Logic: I never knew cases in law to be expounded by Logical and Grammatical learning, but by the intentions of the parties, and here I conceive that the estate is v●sted in the Conusee by the fine, and so the condition is subsequent: but admit it is Executory, and I say concerning that there are these differences; that if the state of the thing granted is executory, and that the condition of the thing granted is Executory, and the condition is to remain with the estate, so long as the estate doth remain, the condition is precedent: 28. E. 3. 2 4. 3. 1. H. 6. 32. but if the condition be but one time to be executed, and that not contained with the estate, than it is subsequent 10. Eliz. Dyer Calthorps' case: but here our estate is executed, for it is expressly limited to the Lady Cesar and her heirs, which takes away all implied uses, so that no implied use shall result in the mean time, and so 75. Assizes land given to a man and to his heirs, if he have heirs of his body, now this (if) is subsequent, and so I conceive that it is not a condition simply, but a conditional limitation, for it appears by Mr. Littleton, because it is no otherwise expressed, and another reason is, because the condition is annexed to the future time, ergo that is subsequent, and yet I grant there is a difference betwixt such an estate conditional annexed to an interest, and where it is is annexed to an authority, it may be precedent, but for an interest it is subsequent, as is the case of Bracton lib. 2. fo. 3. and now for the second point, whether the heir may and aught to perform that, and I do conceive that he is, and it is not annexed to the person, because it is real, and doth arise with the land. Secondly, yet the law doth expect who ought to have performed that, but it is the performance itself which the law doth respect: 4. E. 3. 2. such condition real which doth arise with the land, and in such a case no notice is in that case requisite: and the last point is, whether the estate for life is gone, and I hold that it is saved by the common law of England, for the fine only is as the grant of the reversion by the explanation of the indenture, and then there is no surrender in the case; but when the condition is performed, the estate for life doth remain, and so was it resolved in Mr. Mansors case; and yet I agree that a little matter will make a surrender; and Mr. Ruds case where lessee for years of an advowson, was presented by the Patron, that was a surrender: but the Statute of the 27th. of H. the Eighth at the end saved that, though it is to her own use, for the words of the saving are to every person, and their heirs which hereafter shall be seized to any use all such former rights, etc. possession etc. as they might have had to their own use, in any lands whereof they be seized to any other use whatsoever: and so upon the whole matter I do conceive, that judgement ought to be given for the Defendant.   

The residue of the case of Gibson and Ferrer.  
NOw the case of Gibson and Ferrer, which see before, was argued again by Sergeant Bridgman; and he said, as before, the award is not good for the interest, and yet he now agreed that covenants, bonds, and contracts for usury, are good in law, but yet it may not be awarded 17. Ed. 4. 5. if a man do submit to Arbitrators, they may not award that he and his wife shall levy a fine, but if the party himself do promise that, this is good, and shall bind the wife to perform that; and besides he said, that here is an award made only of one side, and nothing is allowed to Ferrer, and so not good: 9 Ed. 4. 29. 29. H. 6. 22. and I pray that the Plaintiff may be barred: Hendon to the contrary: and he argued, if an award be good in any part, though it be not in that which is assigned for breach, yet it is good upon such plea of nullum fecerit arbitrium; and the other shows an award, and assigns the breach, in this case the breach is not traversable, for it is of the form, and not of the substance of the action: but to that the Court did presently answer, that the cause of the action is the breach of the award, and this he ought to make apparent to the Court, for otherwise he shall not have any action, and though the breach is not traversable, yet it is of the substance of the action, for upon such plea pleaded, he not only aught to maintain the award, but to show the breach, for it shall be otherwise if it be found against him; and than Hendon answered to the other exception, that this is not for direct usury, but is rather for the damage, which he sustained by the forbearance of the money, and yet if it were for interest it is good, and then as to that which now had been agreed by my brother Bridgman, that contracts and obligations for usury are good: I say then by the same reason an award for that is good, for whatsoever a man may contract for, the same thing may be awarded; if the contract will bear that, and usury is not malum in se, but only malum prohibitum, and is good by our law, and here in this case, though the Arbitrator was deceived in the sum, yet after the award made it is altogether certain, and an implied recompense is sufficient in this case: but the Court said, that the casting up of the accounts did not make an award, for it is not a good Calculation, but the ending of the controversies that doth make the award, but yet the opinion of the Court in this case was, that the award was good, for an Arbitrement shall not be taken absolutely upon the bare words, and the Court did command the parties to come before them upon the morrow in the Treasury, and as it seems this was for mediation to make an agreement, for the opinion seemed to be for the Plaintiff.   

The case of Hilliard and Sanders argued by the Court.  
Justice Harvey this Term did argue the case of Hilliard and Sanders, which see before; and after a brief recital of the case, he said that his opinion was, that the avowant shall not have return, because that by the fine of the lands the rent is extract, and I am induced to be of this opinion by two things, the first is the agreement, and t●e other is the favourable exposition of the Statute of fines, to settle repose and quiet, and I will first show the efficacy of fines at the common law; 21. Ed. 4. the Prior of Binghams' case, it is laid for a ground and rule in law, if a thing be contained in a fine either expressly, or implicitly, this is very good: and so is 44. Ed. 3. 22. 37. H. 6. 5. for a fine is no more than an agreement, and therefore it is called in latin Concordia, and then see if by any words you may pass this rent by the fine, and though the word rent is not there, yet if it be so enfolded in the lands, that is good with that, it is very good, and for that 3. H. 7. 16. 17. 21. H. 7. proves that by a feoffment of the land the rent doth pass, and wherefore not by fine then, and this shall be within the Statute of 4. H. 7. and 32. H. 8. and a case may be out of the Statute of 32. H. 8. and yet be within the Statute of the 4. H. 7. as the 2. Ed. 3. in Dyer though the feme after the death of the husband she may enter upon the discontinues of the husband, yet if she do not within 5 years she shall be barred, and now you see that the construction of these Statutes was always to settle repose and quietness, for if such a construction should be made according to the opinion of Chornton in Smith and Stapletons' case, than it will be mischievous, and for his opinion it was only in the way of arguing, and yet I conceive he had the good opinion of the Reporter, and without all question it is a case of as hard a construction as that is of Archers case, where the heir who nothing had in the land in the life of his father, did levy a fine, this is a bar for ever, and the reason is, because it is of a thing which is entailed, and he cited a case in Bendloes Reports, where a discontinuee was disseised by Tenant in tail who levied a fine, and the discontinuee entered, and then proclamations passed, that in this case the issue was barred; truly I do agree the case of 36. H. 8. that that a fine levied of land did not bar him who had title of Common, or a way, the reason is, because there is no privity, but in our case there is a privity, and by Margaret Podgers case a Coppiholder is within this Statute, and in our case the rent passeth especially in regard of the agreement, as in the Lord Cromwel's case, and he cited a case primo Jacobi, between Gage and Selby in an ejectione firm, where Gage was Tenant in tail, and he levied a fine to I. S. in fee, and after he levied another fine to the use of himself for life, the remainder over, and his brother brought a writ of error to reverse the first fine, and ruled that he may not, for the second fine had barred him of any writ of error, and so I conclude the fine had extinguished the rent.   

The argument of Justice Hutton to the contrary.  
HUtton contrary, the fine had not barred the rent, in which I will consider the nature of fines at the Common Law, and they were of mighty and great esteem, and force, as appears by the great solemnity which is used in them, as is prescribed in the Statute of fines 18. Ed. 1. de modo Levandi fines, and he agreed that such a fine by Tenant in fee simple will pass that inclusively, for by the release of all his right in the land a Signiory is gone. I agree also that a fine is but an agreement; but yet it must work according to the nature of the thing, as upon a writ of Measne, or of right of advowson, a fine may be levied, and yet it is not levied of the lands, but of the advowson, or Signiory, and so if the writ of covenant be one thing, and the agreement of another thing, than it is not good, and first I will prove, that at the Common law fines have been rejected when the writ of covenant did not contain the thing of which the fine is to be be levied, and if at the Common law a fine was levied of rent, there ought to be a writ of covenant of that 18. Ed. 2. fines 123. and there the rule is given, that it is against reason to hold covenant of that which never was, and the rent there never was before, but aught to begin then, and yet it is clear a man may create a rent by fine; but he shall not have a writ of covenant of that when it was not in esse before, and because the concord may not  from that, therefore it was not received 38. Ed. 3. 17. Knevet put the rule, that a fine may not be of more than is in the writ of covenant, and when a fine is properly levied of that, it is by way of release: Fitz. fine 100 and so I conceive here the rent doth not pass. Secondly, here no man may plead that any fine is levied of this rent, for this is forced in by the name of land, which is absurd, and contrary: and here is not any fine levied directly of the rent, nor any Silver of the King paid for that, but only by the judgement of consequence: and now for the Statutes of fines, whether it is a fine within these Statutes, and I hold that it is not: and I am of opinion that if the rent had been behind before all the days of proclamation pass, and the issue had accepted, that he is remitted: and the same law is, if Tenant in tail of such a rent, and he acknowledge such a fine with proclamations, and the proclamations pass, now if his issue had accepted the rent before the proclamations passed, he is remitted: and now for the Statute of 32. H. 8. that is not taken by equity, because it is a Statute of explanation, which regularly may not be enlarged: and so appears in Butler and Baker's case; and now for the agreement itself that is not any thing, for this is by a contrary name which may not be good: like to the case of the Lord Cromwell, for there was an agreement to raise a rent by fine, but here is an agreement to pass a rent by another name, and will any man say that if a man agree to levy a fine of rent by the name of an advowson, that this will pass the rent; and I think that the case of Thornton is good law, and so is also the case which is put after that of the advowson: and yet I agree if Tenant in tail do accept a fine with render to another for years, that shall bar him, because that doth not work a discontinuance, but otherwise where it is for life, and so in my opinion the rent remains, and the avowant shall have judgement.   

The argument of the Lord chief Justice Hobert.  
HObert to the contrary, the short question is, whether the rent is extinct by the fine of the land, and I hold that it is, and it is agreed it is a bar against the parties themselves, though not against the issue, and that being granted I see no second reason wherefore the issue shall not be barred, and first I am of opinion, that this plea of not comprised, it is not good; because this fine doth work by way of release, but it was said at the bar, that things ought to pass literally in a fine, which I deny, and also every informalitie of a fine which is cause to reject that, is not a cause to frustrate that when that is levied, and the words of the Statute are of any lands, Tenements, or hereditaments any wise entailed, and if there be any word in the conveyance which will carry that, it is sufficient, and it shall be put upon the construction of the law, and as to that, that the fine shall be according to the writ of covenant; but I say if there be no writ of covenant, than there is no departure: but it was said, that the Silver of the King was not paid, which I also deny, for it was paid inclusively, and the words of the Statute are of any thing any wise entailed, and Tenant in tail had as great power to pass that by fine, as Tenant in fee simple: and for the case of Thornton, I know he was a learned man, but let it suffice that he was so esteemed; but for his opinion I do utterly deny that, and I do deny the case put by my brother Hutton of the Piscary, for I hold if a man had a Piscary in another man's land, and levies a fine of that by the name of land, this will pass the Piscary clearly, and so the same if a man have an office appertaining to land entailed, and a fine is levied of that by the name of the land, this shall bar the issue; and I deny that Statutes of explanation shall always be taken literally, for it is impossible that an Act of Parliament should provide for every inconvenience which happens, and so the case of Godfrey and Wade adjudged, that the fine of the youngest son may not bar the eldest, and yet within the words the eldest was heir to him, but this word heir shall be expounded as his heir, and so we use to expound the Statute of 4. H. 7. which is an original Statute, and binds parties, and privies, and here the eldest brother is not privy, for he claims before him: and so I conclude that the rent is gone: and judgement was given accordingly.   

Sir Robert Hitcham against Brooks.  
SIr Robert Hitcham Sergeant of the King, brought an action upon the case against Brooks, and set forth in his declaration, that he was one of his Majesty's Sergeants at law, and that the Defendant spoke these words of him, I doubt not but to prove, he, innuendo Sir Robert Hitcham, hath spoken treason, and upon not guilty pleaded, it was found for the Plaintiff, and now it was moved in arrest of judgement by Hendon; first, because it is not a direct affirmation, that he spoke treason but he doubts not but to prove that, like to Penticosts case which was adjudged here, where one Baker said of him, I will prove that Penticost was perjured, and no action will lie, because he did not directly affirm that he was perjured. Secondly, because he had not showed when he spoke those words, and perchance it was in his infancy, or lunacy, or before the general pardons. Thirdly, here is not any allegation of any conference had of the King before, and the speech of Treason is not Treason, but when there is an intent to commit that, and words shall be taken in the best sense, as the case of Stanhop Cook 4. and so in the case between the Earl of Shrewsbury, and Sir Thomas Stanhop, one laid to Sir Thomas Stanhop, that the Earl is a subject; nay, said Sir Thomas that is his grief, and adjudged those words are not actionable, and yet the words might be taken as if he had repined to have a Sovereign, but the words were taken in the best sense: Finch to the contrary; this is more than a bare affirmation, for he said he doubted not but to prove that, as much as if he had said, I am sure of that, and Mich. 16. jac. Sidnams' case, where one said, I think in my conscience that if Sir john Sidnam might have his will he would kill the King, and all his good subjects, and adjudged upon a writ of error brought of that, the words are actionable: and so in Whorewoods' case, so sure as you believe that God rules the world, and that the King rules the Kingdom, so sure did Whoorwood steal such goods, and adjudged to be actionable; and yet perchance the party to whom he spoke, did not believe either of them, and so Woods case 18. jac. I will call him in question for killing of a man, I will pawn my shirt but I will hang him, and so here, and prayed judgement for the Plaintiff.  
Ashley Serjeant contrary; words which may be taken in a double sense shall be taken in the best sense, and it shall be intended he spoke Treason in putting of a case, or in speaking that after another, and yet he offended not; and so if he had said, that he had written, or printed Treason, for so do the printers of the King, and the Clerk of the Crown; and so I conceive that the Plaintiff shall not have judgement.   

Easter 1. Carol.  
ANd Sergeant Bawtrey, the Term following argued for Sergeant Hitcham, that it was plain, that the Defendant spoke the words with a full intent to take away his life, and to speak Treason is to speak ex corde suo, and not that which another spoke, and now in Easter Term 1. Carol. judgement was given for the Plaintiff by Hobert, Hutton, Harvey, and Crook with one accord: and they said the limitation of the time is not material, for if it was spoke in his infancy etc. Brook aught to have showed that: and Crook cited Walgraves' case 32. Eliz. in B. R. one said of him that he was not a good subject, and adjudged, because he spoke them maliciously, and he being one of the privy chamber, that the action will lie, and so 5. jac. Blanchflower and Alwood thou haste spoke Treason, and shall be hanged for that, adjudged to be actionable, and the 7. jac. Barford against Prowse, thou haste spoken Treason, and I will prove that, adjudged to be actionable; and judgement was given for the Plaintiff according.   

Pleadal against Gosmore.  
PLeadal brought an action against Gosmore for the taking of his Colt, and fettering him by which the Colt was much the worse, and the Defendant justified, and shown that the Colt was taken within such a Manor which was the Counteses of hartford's, and that she had estrays within the same Manor, and he justified the taking as Bailiff to her; and shown that he fettered him to the end to keep him from doing harm, because he was wild: and Sergeant Attoe demurred in law, and he said that a man may not fetter an estray, because he shall be paid for his keeping, and for the hurt that he did; and he cited a judgement 8. jac. in this Court Rot. 1749 between Harvey and Blacklock, for the taking of his horse, and the fettering him by reason of which he fell into a ditch and was drowned, and the other justified the taking as an estray, and he fettered him to one of his own horses, because he was wild, and they both fell into a ditch, and were drowned etc. and adjudged to be no Plea, and the reason which the Lord Cook gave was, because he shall be paid for the keeping of him, and for his damage, and of this opinion was Hobert in the case at the bar: but Winch, Hutton, and Harvey contrary: that he may fetter him as he may his own horse, and for the case which was alleged, they said that there was no proclamation pleaded, and so the justification was not good, and judgement was entered for the Defendant: and this was the last case that ever justice Winch spoke to in the Court; for he being a man not more admired for his profound learning, than he was reverenced for his piety and integrity died upon Friday following, being the fourth day of February in the morning as he was making ready to go the Hall.   

Elizabeth Davis against Hawkins.  
THere was a case between Elizabeth Davis and Hawkins in the spiritual Court for defamatory words, and sentence was given against the Plaintiff who appealed to the Arches, and judgement was given for the Plaintiff, and 12. d. costs, and then came the general pardon, and the Defendant did appeal to the deligates, and there the second sentence was affirmed, and greater costs given, and the Defendant did plead the general pardon, and they would not allow of that; and now it was moved for a prohibition, and these points were debated by the Council, and agreed by the Court etc. by Hobert, and by Harvey; that though this suit and sentence is only for to make the party to deny the words, and confess his fault in some public place, yet it is in effect, as if it were merely at the suit of the King for reformation, and this is a new invention which they had found out, to take away the benefit of the pardon of the King, and now to the new costs which were taxed by the deligates, they were not taken away by the pardon, for though the first offence was, yet because this new suit was not only to quash the sentence for the offence, but also for the costs, ergo these new costs were assigned for the unjust vexation, for he was the cause of the removing of that; and so they may do for the unjust vexation; but not for the first offence.    
The End.   

A perfect Table of the Principal matters contained in this Book.  

A  
Account against a Bailiff, to the damage of 100 l. and judgement to account, he makes default, what judgement shall be given: 5.  
Account what is a good Plea in bar therein, 9  
An action upon the case where a request, and the time and place thereof necessary, and where not, 2  
Action for saying the Plaintiff is a false for-sworn knave, and took a false oath at a Commission, 2 & 3  
Action for saying, thou art a Thief, and hast stolen 20. load of my furzes, lieth not, 3 & 10  
Action for etc. thou hast stolen Hay from Mr. Bells Racks, and judgement for the Plaintiff, 6  
Action upon the case upon a promise, what is a good consideration, a acquaint difference taken, 7 8  
Amendment of a judgement, where, and within what time: good matter 89  
Award where good in part, and void for the rest, 1  
Action for words, that the Plaintiff stole Tobacco out of his Mrs. shop not good, without averring that there was Tobacco there, 15  
Attachment denied upon an affidavit, 15 16  
Audita Querela where it lieth against one Feoffee, and where before an Ouster, 20 23  
Action upon a promise what consideration is good therein to forbear, 22 23  
Action upon the case for procuring the Plant, to be indicted for stealing Vetches, where it lieth, and if it ought to be a writ of conspiracy, 28 54  
An action by an Auditor for saying, you are a Cozner, and live by Cozenage, 33 39 40 41  
An action for saying the Plaintiff loaded a ship with Barley, and stole 7. quarters of it by measure, it lieth, 41  
avowry for rend granted to the father, and that it was arrear to his son, good without saying in whose time it was arrear, 48  
Action upon the case to save the Plaintiff harmless for keeping a prisoner, good, without saying he was lawfully arrested, 48 49  
In avowrie for rend upon a lease by the father, the son claimeth by descent, the Plaintiff saith the father devised the reversion to another, the jury found a devise only of two parts, judgement given for the Avowant, 49 50  
Amendments not allowed upon indictments, actions popular, or penal Statutes, and if one be named in the venire facias, Gregory is returned George, there needs not amendment if it be in a Tales, otherwise in a principal panel, 66  
Action for words, he is as arrant a Thief as any is in England, the Plaintiff needs not aver, that there are Thiefs in England, for the difference is when the words relate to a particular place, and when to an entire Realm, and so when it is tied to one kind of felony, 70 89  
Action upon the case where it lieth for a malicious prosecution at the Sessions, 73  
An action by the Obligee for the Obligor saying he had forged the bond, but if he had said to another, that he was a forger and had forged false writings, no action lies, 76  
Action upon the case, upon a contract in London, to Table with the Plaintiff at A. in N. and he then and there assumed to pay 4. s. by the week, where the action must be brought, 78  
An action upon a promise against a Parson, in consideration that the Plaintiff would better his Tithes by Planting hops, that he would allow him 40. s. an acre for his charge, if that be a good consideration, 80  
Action upon the case where it lieth against an Attorney for convinous pleading, 90  
Action by an Attorney, for saying, he had forged writings, and deserved to lose his ears, lieth not: 90 91  
An action against a Sheriff, whether it lies in the County where the return of the extent was made, or where the land lies, 100  
Averment against the Sheriff's return, where good and where not: 100  
Amendment where the venire facias, habeas Corpus, and the panel agree, but the Jury Rol● differs: 101  
Action of the case upon a promise: 101  
Action for saying the Plaintiff stole a ring, and had been hanged but for me, lieth: 102  
Action upon a promise where the time and place of the request ought to be expressed: 102 103 112 113  
Arbitrators (amongst other things) award interest money, whether good for all or part: 114 120  
Action by Sergeant Hitcham for saying, I doubt not but to prove Sir Robert Hitcham hath spoken Treason: 123 124   

B  
A Bail where he is not liable to the judgement until default be in the principal, or if the principal die: 61 62   

C  
A Commission to 4. or 2. of them, and one refuseth, the other sit, the 4th. may be a witness: 45  
Condition to save harmless, he plead in the affirmative, he must show how: 9  
A Coppiholder releaseth to his Companion, it is good without admittance: 3  
A Coppiholder where he may enclose, or dig for Marle, and where not: 8  
A Covenant to enjoy without the let of the Grantors etc. or by their procurement: 4  
A Custom for a Coppiholder to cut trees at his pleasure is void: 1  
If Tenant in ancient Demesne devise his lands, the Devisee shall have fee: 1  
Covenant. See fine:  
Costs where they shall be given against an Administrator: 11  
A Condition to surrender copyhold, he pleads he did it, not good because he shown not when the Court was holden: 11  
A Commission to seize for recusancy, they seize an advowson, the K●ng grants to I. S. who presents and is disturbed by the University of Oxford, to whom the presentation belongs: 11 12 13  
Costs upon a Nonsuit at a nisi prius, whether assessible by the Court, or by the Judge of Assize: 16  
Common claimed to 600 acres and certain Messages and lands, and that he was disturbed by digging common Borrows, and doth not say he was seized at the tim●, much good matter: 16 17  
Custom of Merchants in Bills of Exchange, variety of good matter: 24  
Condition to free the n●xt avoidance from encumbrance, the Grantors' heir presents, if that be a breach: 25  
Custom to have a widow's estate, and the husband is attainted, if it holds: 27  
Condition that I. S. shall levy a fine to the Obligee who sued not a writ of Covenant, the Plaintiff replies that before etc. I. S. had made a feoffment of etc. whether the Obligee must sue a writ of Covenant. 29 30  
A Condition contingent where extract by release: 30 31 54 55 56  
Covenant to make assurance by advice, so that it be within Norfolk or City of N. a fine is advised, not good, because not showed where it should be levied: 32 33  
Covenant not to alien an advowson without assent, the Plaintiff saith he had aliened &c. good, although he had not said by deed: 34  
Covenant where it raiseth a present use, and where not: 35 36 37 59 60  
Custom touching Merchants and national laws: 52  
Church shall be repaired by him who hath land there though he be no inhabitant. but not liable for the ornaments thereof: 53  
Coppiholder what act by him will make forfeiture: 62  
Covenant by a draper against his apprentice for defrauding him, the Defendant pleads the Statute 5. Eliz. and that thereby there ought to be a certificate that his father had 40 s. per annum freehold which was not done here: 63 64  
If a Coppiholder sells his land to a Lessee of the Manor it is good: 67  
Condition in a Will where nothing vesteth till it be performed: 69  
Costs not to be paid where the Plaintiff mistakes his action: 69  
Covenant brought by an Executor, the Defendant pleads giving of an horse in full satisfaction which the Testator accepted: 76  
A Court of equity if it doth decree against a maxim in law, as benefit of Survivorship, a prohibition lieth: 79  
Covenant that he was seized of a good estate in fee and had good authority to sell, and that no reversion was in the King etc. 91 92 93  
Condition, where it shall be precedent, and where subsequent: 105 106 107 108 etc. 115 116 &c,  
Costs not discharged, although the offence be pardoned: 125  
Commendam. See King:   

D  
IN dept, after imparlance, always ready is a good Plea: 4  
Distress gone as to the nomine Paenae if the rent be expired: 7  
A Declaration where it shall be mended in matter of substance: 20  
Damages where good in part especially after verdict: 27 28  
Debt against an Administrator who pleads outlawry in the intestate, no good Plea: 33 58  
A man soweth land, and deviseth to I. S and dies before severance, whether the devisee, or Executor shall have the Corn: 51  
A Devise for years, if an entry by him must be pleaded: 53  
Declaration see new assignment.  
Dower a Tenant pleads a fine levied by her husband and that the wife had not claimed within the Statute 4. H. 7. she replied she brought a writ which abated, and this writ now brought was by Journeys accounts: 66  
Debt for rent must be brought by a privy in estate only where the land lies, otherwise of a Privy in estate and contract: 69  
Debt upon a bond the Plaintiff saith he had not paid the money and did not say, nor any part thereof, good, for that must come of the other part to show: 72  
Debt upon a bond to perform an award, the Defendant pleads no award, the Plaintiff maintains the award and the breach, the Defendant rejoined that before the time of the award they discharged the Arbitrators: 75  
Debt by a servant for wages in the debet and detinet, and for 2 shirts in the detinet only, good without showing that it was according to the Statue, and by several precipes in one writ: 75  
In Dower the Tenant pleads never seized to have Dower the husband having an estate but by disseizing which was avoided by entry: no Dower: 77  
In Debt two were bound for the appearance of another, and judgement against the debtor, who upon the capias offers his body, the Plaintiff refuses, the sureties are discharged, but the Plaintiff may take a Capias within the year, but if he had come on the capias and had not Sureties, and he refused him, Quer. if he be not discharged: 77 78  
Dower of a reversion after a lease for years, she shall have the rent, and the Defendant pay no damages: 80  
Dower, what judgement shall be given, where the vouchee dieth, whether absolute or conditional: 81 88  
Dower, where the trial ought to be by witnesses, and in what manner: 82  
Dower, the Tenant pleads, that the demandant had entered, and disseized since the last continuance: 90  
Where the Demandant shall have judgement, and where only a petit Cape: 90  
Dower, against an Infant who pleads a devise to the demandant in satisfaction of Dower and entry: 100   

E  
ERror lieth not for a judgement given in the Stanneries in Cornwall 8  
If an Executor be nonsuit he shall pay no costs 10  
Executor where he bringeth an action he ought to show the Will, otherwise if the issue be joined 19  
If the Debtor makes the Debtee Executor, he may retain, and plead fully administered 19  
Execution, what fees are due to the Sheriff where the debt exceeds 100 l. 21 22  
Essoign, in a Formedon after the Vouchee appeared 34  
Escape against the Warden of the Fleet, retaking upon fresh suit good after an action, but not after issue joined 35  
Escheat where lands are given to a Monastery, and all the Monks die, who shall have it, the founders, or the Lord of whom it is holden 38  
Executor where he or a devisee shall have the Corn 51  
If an Executor waste the goods of a Testator and dies intestate, his Administrator shall be liable, and by the Court 31 Ed. 3. Coo. 11. gives no remedy but against an immediate administrator 65  
Estray whether the party may fetter him or no 67 68 124  
An Executor where compellable to plead a general issue, and give the special matter in evidence 70  
Executor may bring an action in the debet and detinet upon his own contract 80  
Executor, an action brought against him by Journeys accounts, where good 82  
Execution, where the party shall be discharged by supersedeas at the Courts discretion 100 101  
Execution see purchase 112   

F  
TEnant for life, and he in remainder in tail Covenant to levy a fine, Tenant for life dies, if he in the remainder, aught to do it 4  
In a Formedon the Tenant pleads, that at the day of the writ the Plaintiff was seized of the moiety thereof, not good 23  
Fees where an action of the case lieth for them by a Solicitor 53 54   

G  
GEneral issue where it ought to be pleaded, and where not 70   

H  
HErriot whether it be due to the Lessee of part of the Manor, or to the lessee of the whole Manor 46 47 57   

I  
INformation for engrossing a 100 Quarters of Corn, and upon inquiry he is found guilty of a 100 it is good for so much 5  
In an idempnitate nominis the Plaintiff prayed a superdeas to stay Execution, Curia Advisari vult 6  
Information, for entertaining his apprentice without a Testimonial contrary to 5 Eliz. 25  
Jointure the father makes a feoffment to the use of himself for life, the reversion to his son and his wife entail, this is no Jointure, though the father die in the life of the son, so if it had been for years 33  
Infant and Apprentice unto what Covenants liable 63 64  
Issue, in a quare impedit is joined, the wife one of the Plaintiffs dieth, before the venire facias, the writ doth not abate, because it was a Chattel vested in her husband 73  
Infant, where he may declare uses upon a fine, and what acts are by him void, or voidable 104  
Infant, in a judgement against him, where he shall be relieved by audita querela, or error, and whether against the Attorney who suffered it 114   

K  
Where the King may seize without office and where not 9  
Where an usurpation gaineth an advowson from the King 14  
King, where he hath title to present, the incumbent being created a Bishop in Ireland, and what act is a dispensation thereof, and where a Commendam is well granted and the several kinds thereof 94 95 96 97 98   

L  
A Lease of a rectory excepting the Gleab, void otherwise if parcel of the Gleab 23  
A Lease for a year, and so from year to year, this is a Lease for 3. years, and if the Lessee hold over, Quer. what remedy for the rent 32  
A Lease for years by him in remainder in tail, if destroyed by a recovery 41 42 43  
In a lease to try a title of several parcels he ought to enter into them all severally 50   

M  
A Miss-trial is not aided by any Statute of Jeoffales 69   

N  
Nuisance by stopping the wind, abated 3  
Nuisance for stopping a light, abated 4  
Notice to give bond where necessary and where not 26 27  
New Assignment if it be more large than the declaration, it is good in Trespass, but otherwise in an ejectione firm 65  
Notice, where ought to be taken and by whom 108 120   

O  
ORdinary, what power he hath to dispose after debts and legacies paid 11  
An Obligation where good upon the Statute 23. H. 6. 20 21 50 51   

P  
A Prescription to pay the Vicar a Buck in Summer, and a Doa in Winter for a Park which becometh Disparked 144  
Prescription to have land itself, void 6  
Prescription, See Replevin.  
A Prohibition to the Admiralty lieth not after judgement given there 8  
Protestation where good and where not 13 14  
Prohibition where it lies to the Court of Audience for saying, thou art a common and base Quean 14 15  
Promise by a Lessee or a stranger to pay rend, if an action he thereupon 15  
A Presentation by the Lord Chancellor, where it belongeth to the King is only voidable 19  
Prohibition where it lies for a seat in the Church, a difference between the Lord of the Manor and another Person 19  
A Protection from a Peer not good in a Capias utlagatum 24  
A Prohibition where the parties agree in the modus, but  in the place of payment lieth not 33  
A Prohibition awarded against one who sued in the Court of Audience Administrators for a Legacy as Executors 64 65  
In a prohibition the Tenants of a Dean and Chapter allege prescription for nonpayment of Tithes, and good, because they are a spiritual body 65  
In a Prohibition upon a suit for a Legacy, the Executor shown he had not assets to pay the debts, and the spiritual Court would not allow that allegation, yet no Prohibition 78  
Prohibition to the Marches of wales, because a Legatee sued there for 500 l. good before a decree, but not after 78  
Prohibition, see Court of equity etc. 79  
Prohibition to the Marches of Wales for requiring an account of an Administrator 103  
Process against two Obligors by several precipes and thereupon several Executions, whether the writs are well awarded 112  
A parco fracto where it lies against the Lord of the Soil, and where not, except the Cattle come out 80 81  
Prohibition to the delegates, a pardon not allowed of there 125   

Q  
IN a Quare impedit adjudged that nothing ought to be questioned after induction, the spiritual Court there 63   

R  
TEnant in tail sells to I. S. in fee, who sells to the heir of Tenant in tail being of full age, the father dies, if the son be demitted 5  
A replevin etc. the Defendant saith that all those etc. had used to have pasturage in etc. when it was not sowed, the Prescription is good 7  
In a return of Rescous there needeth no addition 10  
Replevin for rent issuing out of six acres, the avowant must prove that the grantor was seized of 6. acres or more 15  
Replevin in the Plaintiff claimeth property without that the property was in the Defendant, the Traverse not good, yet judgement for the Plaintiff because after verdict 26  
In Return of an extent by the Sheriff, surplusage hurteth not 27  
Replevin the Defendant avowed for homage, and shown not how it was due, if good 31  
Replication although evil, where the Plaintiff shall have judgement if the Defendants plea be vicious 37  
A Riotous quarrel about an arrest between the Sheriff's Bailiffs, and the Bailiffs of the Marches of Wales 72  
Release an avowry not good without pleading it by deed 72  
A Rent-charge granted and a Covenant if it happen to be behind, than the land to be always open to distress, whether this be a distinct covenant or not 74 87  
Replevin for rent, the Defendants say, that the land was parcel of a Chaunterie which came to the King by the Statute, wherein the right of others was saved, the Plaintiff replies that the land is out of the fee of the Defendant, no good plea, but he might have Traversed the Tenure, that at the making of the Statute the land was not holden of him 77  
A Record amended, where the bargain and sale and deed of uses, were by the right name, but the writ of entry was of another name 99 100  
Rent granted in fee, by Tenant for life, and him in remainder in tail, levied a fine a good grant 102  
Rent-charge whether it be extinct by a fine of the land to the Tertenant, and a release unto him 109 110 111 121 122   

S  
SCire facias, the Defendant pleads a feoffment, the Plaintiff traverses and the jury found a feoffment to other uses, whether this shall be intended the same feoffment which was pleaded 32  
Scire facias by an Executor upon a judgement for the Testator, the Defendant cannot plead the Testators death between the verdict and judgement, but he must bring a writ of error 48  
Simony, a grant of a next avoidance for money, the Parson being ready to die, is Simony 63  
A Sheriff by force of a Capias utlagatum, to inquire what lands &c. cannot put the party out of possession 78  
Statute-Merchant, if good in regard no day of payment is limited, largely and learnedly argued by the Court 82 83 etc.  
Servant taken away. See Trespass.   

T  
TIthes. See Prescription.  
Trespass, the Defendant saith, that I. S. was seized in right of his wife, and that she died seized, and that he as heir etc. the Plaintiff replied that she died not seized, he ought to have said that she died not sole seized 7  
Trespass in Yorkshire, Justification in Durham without that that guilty in Yorkshire, good, because it is local 7  
A Traverse to a presentation where good and where not 13 14  
Tenure where it is Traversable and where the seisin 18  
Tithes not due of Cattle for the diary 33.  
Trespass for Beasts taken in London Justification upon a lease of land in Kent. Replied that the Defendant sold them in London, no good plea to bring the trial out of Kent 48  
Trespass for taking one's servant, lieth not upon a private retainer, otherwise if it were at the Sessions 51  
Tithe given by the Pope to the Vicar, and the Copy of the Bull only was showed in evidence not good 70  
Tithes cannot be appurtenant to a Grange, except the Grange be the Gleab 72 73  
Traverse where good, and where not 113   

U  
VEnire facias omitting part of the venue if good 34  
Variance between the writ and Declaration where good 35  
A feoffment to the use of A. for life, and after to the use of his daughter till B. pay her 100 l. here the daughter hath no remedy for this 100 l. without a promise 71  
A Ventre inspiciendo awarded and returned, but the Court would not agree, that she should be detained from her second husband, but attended by divers women till her delivery 71  
Variance between the venire facias, and the Sheriff's return, no judgement in that case 73   

W  
IN Waste judgement by nihil dicit, and upon an inquiry, the jury found 8. s. damages, what judgement shall be given 5  
Wager of Law upon a Bill of Exchange 24  
Writs, a difference wherein there is an error in the original, and where in the judicial writ, that is amendable 73  
Waste although for a time it is punishable, yet after the action may revive 79 86  
Writ, against husband and wife as an Inheritrix, the husband dies, if the writ abate 102    

Errata.  
PAge 1. line 2. 27. for do read Doa p. 2. l. 4. r. lieu p. 4. l. 2. 22. r. 300. pa. 8. l. 36. r. Hendon and so throughout p. 12. in the Title r. Duncombe against the University of Oxford p. 12. l. 14. r. 38. H. 8. cap. 39 p. 14. in the Title r. Sir George Savile against Thornton p. 15. l. 21. r. communication p. 16. l. 12. r. 7. Jac. cap. 5. p. 17. l. 47. r. Manes, and l. 17. r. sic. and also p. 17. & 18. in the Margin r. Trin. p. 21 l. 51. r. 39 Eliz. p. 23. l. 9 r. till p. 26 l. 28 for writ r. Action, and for Action r. writ p. 27. l. 12. for he r. they p. 28. l. 34. r. may not p. 29. in the Margin r. Easter p. 29. l. 33. for S. r. N. p. 33. l. ultim. r. Moor p. 36. l. 43. r. Titterels p. 45. l. 20. r. demandable p. 50. l. 35. r. Bar p. 51. l. 22. r. a penalty p. 53. l. 16. r. may not p. 54. l. 44. r. Estate p. 57 l. 19 r. in our case p. 58. l 50 r. 16. E. 4. p. 68 l. 5. r. estray p. 71. l. 26. r. 12. Note in p. 72. l. 7. Wolsey's case ought to have been printed by itself p. 77. l. 4. r. avoided p. 88 l. 4. r. Finch p. 90. l. 15. r. continuance p. 100 l. 21. for preservation r. persuasion and l. 34. for entire r. entry p. 109. in the Margin for Trin. r. Mich. p. 112. l. 25. r. thought p. 114. l. 18. for interested r. interest.