there which to their Office of Sheriff appertaineth or any waies to intermeddle with it except only for the Sheriff of the County of Glocester to hold their County-Courts as is aforesaid And that the Major Aldermen of the said Town for the time being their Successors having power and authority to enquire here determine all things which Iustices of P. or Iustices assigned to hear determine Trespasses and Misdemeanors within the County of Glocest before this time have made or exercised And that the Iustices of Peace of him his Heirs or Successors within the said County of Glocester should not intermeddle with the things or causes which belong to the Iustices of Peace within the said Town c. And upon this Charter divers things were moved by Sir William Periam Knight now chief Baron of the Exchequer before his going into the Circuit 1. Whether by the saving of the Charter they have sufficient power reserved to them to fit within the Town being now exempted from the said Town of Glocester to enquire there of the Felonies done in the said County of Glocester And so for the Assises and Nisi prius taken there of things made in the County of Glocester Then if the the Sheriffs may execute their Warrants made there at the time of the Assises or Goal-delivery notwithstanding the exemption given to them by the Patent And it was agreed by all the Justices that the saving in the Patent is sufficient for the Iustices of Assise and Goal-delivery to sit there for the things which happen within the County of Glocester for as the King may by his Letters Patents make a County and exempt this from any other County so may he in the making of it save and except to him and his Successors such part of the Iurisdiction or priviledge which the other County from which it is exempted had in it before As in divers places of the Realm the Goal of a Town which is a County of it self or which is a place priviledged from the County is the Goal of the County and the place where the Assises or Goal-delivery is holden is within the County of the Town and yet serve also for the County at large as in the Sessions Hall at Newgate which serves as well for the County of Middlesex as for London and yet it stands in London but by usage it hath alwaies been so and nothing can be well prescribed unto by usage which cannot have a lawfull beginning by Award or Grant and this by the division of London from Middlesex at the beginning might be so And so the Goal of Bury c. And although that the words are saving to him and his Heirs yet by the word Heirs it shall be taken for a perpetual saving which shall go to his Successors which is the Queen and the rather because it is a saving for Iustice to be done to the Subjects which shall be taken as largely as it can be And albeit the expresse saving for the Sheriff is but for to hold his turn yet in as much as the authority of the Iustices of Assise and Goal-delivery in holding their Sessions as before was accustomed is saved it is Included in it that all which appertain to the execution of this Service is also saved or otherwise the saving shall be to little purpose And therfore that the Sheriff or other Minister made by the authority of these Courts is well made there and warranted by the Charter And wee ought the rather to make such exposition of the Charter because it hath been alwaies after the Charter so put in execution by all the Iustices of Assise But it seems that by this Commision for the County a thing which happens in the Town cannot be determined albeit it be Felony commited in the Hall during the Sessions but by a Commission for the Towne it may 7. SIr Francis Englefield Knight being seised in his Demesne as of Fee of Vide this case reported in Coke lib. 7. 12 13. the Mannor of Englefield in the County of Berks and of divers other Lands in the first year of Queen Eliz. departed out of the Realm by licence of the Queen for a time and remained out of the Realm in the parts beyond the Seas above the time of his licence wherby the Queen by her Warrant under her privy Seal required him to return upon which he was warned but did not come wherupon the Queen seised his Land for his contempt After vvhich the Statute of Fugatives was made 13. year of the Queen upon which by Commissions found upon this Statute all his Lands were newly seised and afterwards 17 Eliz. by Indenture made between him and Francis Englefield his Nephew and sealed by the said Sir Francis at Rome the said Sir Francis covenanted with his said Nephew upon consideration of advancement of his Nephew and other good considerations to raise an use that he and his Heirs and all others seised of the said Mannor c. shall hereafter stand seised of them to the use of himself for term of his life without impeachment of Wast and afterwards to the use of his Nephew and of the Heirs Males of his body and for default of such Issue to the use of the right Heirs and Assigns of the said Francis the Nephew for ever with a Proviso that if the said Sir Francis shall have any Issue Male of his body that then all the said Vses and Limitations shall be void and with a Proviso further that if the said Sir Francis by himself or any other shall at any time during his life deliver or tender to his said Nephew a King of Gold to the intent to make the said Vses and Limitations void that then the said Vses and Limitations shall be void and that therafter the said Mannors c. shall be as before Afterwards the said Francis was attainted of Treason supposed to be committed by him 18 Eliz. A Le umures in partibus transmarinis le attainder fuit primerment utlagary apres per act de Par. 28 Eliz. by which the forfeiture of the Condition was given to the Queen and at the same Parliament it was also enacted that all and every person or persons which had or claimed to have any Estate of Inheritance Lease or Rent then not entred of Record or certified into the Court of Exchequer of in to or out of any Mannors Lands c. by or under any Grant Assurance or Conveyance whatsoever had or made at any time after the beginning of the Raign of her Majesty by any persons attainted of any Treasons mentioned in the said Act after the 8. day of February 18 Eliz. within two years next ensuing the last day of the Session of the said Parliament shall openly shew in the said Court of Exchequer or cause to be openly shewn there the same his or their Grant Conveyance or Assusance and there in the Term time in open Court the same shall offer
and exhibit or upon his or their Oath affirming that they have not the same nor can come by it or that it was never put in writing then the effect therof to be entred and inrolled of Record or else every such conveyance and assurance should be void and of none effect to all intents and purposes saving to every person and persons other then to parties and privies to such conveyance such as shall not exhibit the said conveyance according to the true meaning of this Act all such Rights c. wherupon the said Francis the Nephew the 20. day of Novem. 30 Eliz. in his own person affirmed upon his Oath that he had not the said conveyance nor knew not how to come by it but delivered the effect of the assurance omitting the time when it was made otherwise then that it was made after the beginning of the Queens Raign and before the Treason committed by the said Sir Francis and before the Statute made 13 Eliz. against Fugatives and omitting also the last clause of the Condition for the tender of the said King and this he offered openly in the Court of Exchequer the same day after which the Queen being moved with the said Condition made a Warrant per Letters Patens under the great Seal dated 17. Martii 31 Eliz. to Richard Broughton and Henry Bourchier Esquires for her and in her place and stead to deliver or tender to the said Francis the Nephew a King of Gold to the intent to make void the Vses and limitations limited by the said Indenture and to return their proceedings upon it into the Court of Exchequer wherupon they made a tender of a King of Gold to the said Francis the Nephew the 18. day of March 31 Eliz. which he refused to receive And the two years after the said Session of Parliament was the 23. day of March 31 Eliz. And the said Broughton and Bourchier returned all this that they had done as before with the Commissions into the Exchequer according to the Commission And upon this at the Parliament holden 35 Eliz. upon an Act which then was to passe touching the Land and Attainder of the said Sir Francis diverse questions were moved amongst all the Iudges and Barons then there wherof 1. The first was whether the effect of the Assurance made by Sir Francis was delivered into the Exchequer according to the intent of the Act because it wanted the time when it was made and also one of the Proviso's And upon good deliberation they all did agree that it was not put in according to the purport of the said Act for the time may be materiall to be known for the fraud which by the same Statute might be averred to be in the making of this Conveyance and for the better tryall of the validity of the assurance and of the cause of it therfore the true effect therof ought to de delivered or shewn in writing to be entred of Record because the Queens Councell may see and understand by it whether the Queen might have Title to it or not and how can this be if it doth not appear when it was done And for the Condition how can the Queen by presumption come to the notice of it if it be not shewn to her And this was one principall matter of the effect of the said assurance which ought to have been shewn for this shewing ought to be for the benefit and advantage of the Queen and not so much for the advantage of the party And here the effect of it which shall shew for the Queen is omitted and therfore not shewn in writing according to the purport and intent of the Statute which was that by it the Queen and her Councell may see what will make for her in the Grant Conveyance or Assurance 2. Whether this Condition were given to the Queen because that the words in this Indenture precedent to the Condition are these viz. Because that the said Francis the Nephew might happen to be of evill behaviour and government the said Sir Francis provided as before which as was alledged was founded upon a particular regard and respect which was proper to himself and therfore cannot be transferred to the Queen and it doth not appear that he yet had been of ill behaviour But this notwithstanding all agreed that this Condition is in the Queen by the attainder of the said Sir Francis as well by the Act of his Attainder as by the Act of 33 H. 8. which give the forfeiture of Conditions also expressy in the case of Treason 3. Whether there ought to be an Office for finding the performance of the Condition according to the Warrant and all agreed that there need not because that when any man is to do a thing by Warrant of Letters Patents for the Queen to be returned in any Court it sufficeth for him to return it which he hash done according to the Letters Patents with the Warrant it self and then that which is so returned is as well of Record as if it were found by Office and returned of Record and so it was agreed in the Exchequer about 16 Eliz. in the case of Edward Dacres who had made an Assignment of his Goods and Chattells to Sir Alexander Culpdpper and others who afterwards was attainted of Treason by Outlawry and the Condition adjudged to be forfeited to the Queen by the Statute of 33 H. 8. and a Warrant was made by Letters Patents to Sir Thomas George to perform the Condition who did it and returned that he had done it accordingly wherby the assurance to the said Sir Alexander and his Companions was avoided and all the Goods and Chattels of the said Edward forfeited to the Queen and all this was in the Queen without Office found for that which the Sheriff or other Minister doth by virtue of any Writ or Warrant which is to be of Record when it is returned of Record it is as well of Record as the Writ or Warrant it self so here c. 4. But the greatest question was which was not any thing in the case here whether the Estate made to Francis the Nephew were void eo instanti upon Hillary Term finished 31 Eliz. although the two year after the Session of Parliament 28 Eliz. did not end untill the 28. day of March 31 Eliz. in as much as no Term was or could be within two years after it in which the assurance or the effect of it might be shewn openly in the Court of Exchequer or that it shall tarry to be void untill the two years are fully expired as if a man make assurance of his Land upon condition that if he do not go to Rome within two years next ensuing that it shall be to the use of I. S. and his Heirs and he stay untill a week within the end of the two years in so much as it is not possible to perform it within the two years yet the use doth not change untill the two
Tales might be of the other County only Davies versus Gardiner 3. AN Action upon the case for a Slander was brought by Anne Davies against Iohn Gardiner That wheras there was a Communication of a Marriage to be had between the Plaintiff and one Anthony Elcock the Defendant to the intent to hinder the said Marriage said and published that there was a Grocer in London that did get her with Child and that she had Vide this case reported Cook lib. 4. 16. b the Child by the said Grocer wherby she lost her Marriage To which the Defendant pleaded not guilty and was found guilty at the Assises at Aylesbury to the Damages of 200. marks And now it was alledged in Arrest of Iudgment that this matter appeareth to be meerly spirituall and therfore not determinable at common Law but to be prosecuted in the spirituall Court. But per Curiam the Action lies here for a woman not maried candot by intendment have so great advancement as by her Marriage wherby she is sure of maintenance for her life or during her Marriage and Dower and other benefits which the temporall Laws gives by reason of her Marriage and therfore by this slander she is greatly prejudiced in that which is to be her temporall advancement for which it is reason to give her remedy by way of Action at common Law As if a woman keep a Victualling house to which divers of great credit repair wherby she hath her livelyhood and one will say to her Guests that as they respect their credits they take care how they they use such a house for there the woman is known to be a Bawd wherby the Guests avoid her house to the losse of her husband shall not she in this case have an Action at common Law for such a slander It is cleer that shee will So if one saith that a woman is a common Strumpet and that it is a slander to them to come to her house wherby she looseth the adâ—antage which she was wont to have by her Guests she shall have her Action â—or this at common Law So here upon these collaterall circumstances wherby it may appear that she hath more prejudice then can be by calling of one Harlot and the like And Iudgment was given for the Plaintiff Hillary Term 36 Eliz. in the Kings Bench. IN Michaelmas Term 33 34 Eliz. Rot. 181. William and Joane his wife Administratrir of Andrew Stock brought an Action upon the Case upon an Assumpsit made to the Intestate for the payment of 5 l. to William Stock who imparled untill Tuesday next after Octa. Hillary next which was the 24th day of January and then the Defendâ—nt demanded Oyer of the Letters of Administration which were entred in haec verba Wherby it appeareth that the Letters of Administration were committed to the said Joane by Thomas Taylor Batchelor of Law Commissary to the Bishop of London c. wherby the Defendant pleaded that after the last continuance â—he said Letters Patents of Administâ—ation sealed with the Seal of the Vicar Generall of the said Bishop which he useth in this behalf and brought here into Court bearing date the 27th day of January 1591. which was three daies after the continuance committed the Administration to the said Defendant And pleaded further the Act of 37 H. 8. which sayes that it shall be lawfull hereafter for any person being a Doctor of the Law to be Chancellor Commissary or to exercise Ecclesiasticall Iurisdiction albeit he were a meer Lay person so that such a person be a Doctor as aforesaid and avers that at the time of the committing of the Administration to the said Joane the said Thomas Taylor was a meer Lay person and not Doctor Legis civilis nec minister allocatus according to the Laws of the Church of England wherby he had no lawfull power to commit the Administration Vpon which it was demurred generally and by all the Court the Plaintiff had Iudgment to recover for we are to consider what our Law was in this case before this Statute of 37 H. 8. And albeit a Doctor then affirmed that the Canon Law was that there was a meer nullity in such Administration so although the party that did it not being a Clark nor Doctor according to the Stat. of 37 H. 8. yet all the Iustices agreed that the Administration so committed will be adjudged in our Law to be of force and effect being shewn under the Seal of the Officer and committed by him who is reputed the Officer who ought to do it and is invested in the Office untill it be avoided by sentence and yet such an avoidance shall not make a mans act to be made void no more then if a meer Lay-man be presented to a benefice albeit this be a meer nullity in our Law and void yet we adjudge the Church full according to the publike admission constitution and induction and not according to the capacity of the person which is a thing secret untill such a one be deprived for it by sentence in the spirituall Court and yet the Church shall be in our Law void but from the time of deprivation of which notice ought to be given to the Patron So here he remains as to our Law an Officer untill his authority be defeated by sentence of the spirituall Court otherwise great mischief will happen for an infinite number of Administrations may be drawn in question by Averment that he who granted them was a meer lay person and so make such Garboils in the Common-wealth which is not to be suffered for the inconveniency which will happen by it and therfore our Law which is founded upon reason shall judge of it according to the open appearance of the Officer to wit that he hath a grant made to him and not according to the private capacity of the person and this is not altered by the said Statuts which is made in affirmation of it and makes the authority of a Doctor of Law absolute not to be defeated by the Civill or Canon Law which is not in the other case But yet it doth not make this case of worse condition then it was at Common Law And by all the pleading of the Administration committed to the Defendant is not good because it appeareth by the date of it that it was made after the day of the last continuance and therfore could not have been pleaded untill a new continuance after And by the Doctor the last Administration does not avoid the first but in case where there is an especial revecation of the first But they did not speak of the doublenesse because the Demurrer was generall and not speciall and also because the other matters were so cleer 2. IN Trespasse for carrying away certain Loads of Hay the case hapned to be this The Plaintiff pretending Title to certain Hay which the defend had standing in certain Land to be more sure to have the Action passe for Property him
made their Election to have the one or the other it is not to be granted over by generall words But by the dissolution of the Hospitall the grant for want of Election before is gone and determined And further wheras the King made his Grant of the Hospitall and of all the said rent of Fagots and Focals without making mention of 20 s. for the same it was moved that if it doth passe to the King yet it doth not passe from him to the Major c. in as much as he granted it precisely as a Fuell wheras it was in him as a Rent of Fuell or of money at his Election and therfore the King deceived in his Grant And further here he hath made Conusance for the Fuell without making mention of their Election to have it one way or another before the taking but all the Court agreed that the Conusance was good and that the return shall be awarded to him who made the Conusance first because that this case is quite out of the case of Election because the rent which is granted is only out of the Fagots and Astlewood and the 20 s. granted is not as a distinct thing but granted as a recompence or satisfaction of that because the Grant is of the Fagots c. or of 20 s. for the same so that in such a case the Seisin of the 20 s. is a good Seisin of the Fagots and Focals and sufficeth to maintain an Assise upon this Seisin for the Fuell but not for the 20 s. as money paid for Suit of Court is good Seisin of the Suit And the 20 s. here is not granted in nature of a Rent of so much but as an allowance in satisfaction for the Fuell And Popham conceived that he shall have an Action of debt for this 20 s. for the fuell after the Election made if he will as for a Nomine poene because it is not the principall thing granted of which the Inheritance is but a casuall Accident in recompence therof if he will have it or otherwise he may distrain for it because it is so limited to be done by the Grant it self But they shall never have assurance of the 20 s. as a thing of Inheritance because it is not the thing of which the Inheritance is granted but only granted in allowance and satisfaction of it and therfore not to be resembled to the cases where 20. quarters of Corn or 20 s. Rent is granted to one and his Heirs or other such thing which stands meerly in the disjunctive to wit to have or take the one or the other And therfore suppose the Prior was to carry the Fuell yearly to the Hospitall at the Feast of S. Michael and yet then the Master and Brethren might have refused the Fuell and held themselves to have the 20 s. by force of the Grant for then originally the Election ought to have been made there But upon the Covenant which cometh afterwards on the other part the notice ought to have been given in April yearly before but if it be not done there lies but an Action of Covenant for the not doing of it for this will not alter the nature of the Grant which was full and perfect in Law before And here he needs not make this appearance in the Conusance that any Election was made before the taking of the Cattel because the Grant is of the Fuell it self and if the other had made Election before to have the 20 s. for the Fuell this ought to have been shewn on the other side in Bar of the Avowry to wit that he brought to them the Fuell yearly according to the Grant and that they refused it and required the 20 s. every time for it in which case for every such refusall and Election to have the 20 s. for it it had excluded him to have any Fuell for this year so refused And by Popham also you may see a great diversity between this case where a man is to deliver to another 20. Loads of Wood or 20. Loads of Hay yearly out of such Land and he does not tender them for divers years and where a man is to take so much Fuell or Hay out of the Land of another and he takes it not for divers years for in the former case the party who is not satisfied shâ—ll have all the arrears be it never so prejudiciall to the Grantor because it was through his own default that it was not paid but in the other case as appeareth 27 H. 6. 10. he shall not have any remedy for the arrears for the years past because he took them not yearly as they were due which shâ—ll not turn the other party to prejudice that he shall want Fuell or Hay himself by reason of the arrears which hapned through the default of him who ought to take it and the Iudgment was given for him who made the Conusance and it is entred in the Kings Bench Mich. 33. 34. Eliz. Rot. 229. Southwells Case 5. AT the end of this Term upon the proceeding against Southwell the Iesuite it was moved by the Attorney-general to Popham chief Iustice the Master of the Rolls Periam chief Baron Walmsley and Owen Iustices and Ewens one of the Barons of the Exchecquer upon the form of Indictments upon the Statute of 27 Eliz. for Iesuits c If it need be comprehended in the Indictment of a Iesuite who cometh into the Realm of England or any Dominions of the Queen or shall be taken therin 40. daies after the end of this Session of Parliament that if he doth not submit himself within three daies of his landing if he cometh in after the 40. daies according to the Proviso of the Statute or that he was not so infirm of his body where he came in before the 40. daies that he was not able to passe out of the Realm by the time prescribed at first because that it is comprised in the body of the Act that it shall not be lawfull for any Iesuite c. being born within this Realm or any other the Queens Dominions made after the Feast of S. John Baptist in the first year of her Raign or after this to be made by any authority derived c. from the See of Rome to come be or remain in any part of this Realm c. otherwise then in such speciall cases and upon such speciall occasions and for such time only which is expressed in this Act and if he does that this offence shall be adjudged high Treason c. And after deliberation taken and consideration and conference amongst themselves had they all resolved that the better course was to omit this in the Indictment notwithstanding it be comprised in the body of the Act in the same manner as if it had been only in a Proviso in which case it is to the Prisoner to help him by means of such a Proviso if he can do it for the words other then c. are
Living And Mountague chief Iustice said that this word Bribing doth not import that he took a Bribe and therfore this word and all the other words but corrupted Knave are idle but these words impeacheth him in his Office for it hath reference to that and therfore is actionable And Iudgment was given accordingly The same Term in the same Court Sir Baptist Hickes Case in the Star Chamber SIr Baptist Hickes having done divers Pions and Charitable Acts to wit had founded at Camden in Glocestershire an Hospitall for twelve poor and impotent men and women and had made in the same Town a new Bell tunable to others a new Pulpit and adorned it with a Cushion and Cloath and had bestowed cost on the Sessions House in Middlesex c. one Austin Garret a Copyholder of his Mannor of Camden out of private malice had framed and writ a malicious and invective Letter to him in which in an ironicall and deriding manner he said that the said Sir Baptist had done these charitable works as the proud Pharisee for vain-glory and oftentation and to have popular applause and further in approâ—rtous manner taxed him with divers other unlawfull Acts And it was resolved by the Court that for such private Letters an Action upon the case doth not lye at Common Law for he cannot prove his case to wit the publishing of it but because Where a private Letter is punishable as a Libell it tends to the breach of the Peace it is punishable in this Court and the rather in this case because it tends to a publike wrong for if it should be unpunished it would not only deter and discourage Sir Baptist from doing such good Acts but other men also who are well disposed in such cases and therfore as the Arch-bishop observed this was a wrong 1. To Piety in respect of the cost bestowed on the Church 2. To charity in regard of the Hospitall 3. To Iustice in consideration of the Session House and these things were the more commendable in Sir Baptist because he did them in his life time For as Mountague chief Iustice observed they who do such acts by their Will do shew that they have no will to do them for they cannot keep their Goods any longer And he only took a diversity where such a Letter concerns publike matter as they did or private in which case it is not punishable But the Lord Coke said that it was the opinion of the Iudges in the Lord Treasurers case when he was Attorney that such a private Letter was punishable in this Court and therupon he had instructions to exhibit an Information but the Lord Treasurer Jacens in extremis was content to pardon him and so it was resolved between Wooton and Edwards And Sir Francis Bacon Lord Chancellor said that the reason why such a private Letter shall be punished is because that it in a manner enforceth the party to whom the Letter is directed to publish it to his friends to have their advice and for fear that the other party would publish it so that this compulsary publication shall be deemed a publication in the Delinquent and in this case the party was fined at 500 l. The same Term in the same Court. Bernard versus Beale AN Action upon the case was brought for these words viz. That the Words That the Plaintiff had two Bastards 36. yeaâ—s since Plaintiff had two Bastards 36. years ago upon the report wherof he was in danger to have been divorced And it was resolved that for Defamation there was no remedy but in the Spirituall Court if he had no temporall lesse therby and therfore it is not sufficient to ground an Action to say that he was in danger to be diverced but thâ—t he was De facto divorced or that he wâ—s to have a presentment in marriage as it is in Anne Devies case Co. lib. 4. The same Term in the same Court. Brabin and Tradums Case THe Case was That the Church-wardens of D. had used time out of mind to dispose and order all the Seats of the Church wherupon they disposed of a Seat to one and the Ordinary granted the same Seat to another and his A Prohibition for a Seat in the Church Heirs and excommunicated all others who afterwards should sit in the Seat and a Prohibition was prayed and granted for this grant of a Seat to one and his Heirs is not good for the Seat doth not belong to the person but to the house for otherwise when the person goes out of the Town to dwell in another place yet he shall retain the Seat which is no reason and also it is no reason to excommunicate all others that should sit there for such great punishments should not be imposed upon such small Offenders an Excommunication being Traditio diabola In the same Term in the same Court. Fulcher versus Griffin THe Parson of D. covenanted with one of his Parishoners that he should A Parson covenant that his Parishoners shall pay no Tithes pay no Tithes for which the Parishoner covenanted to pay to the Parson an annuall summ of money and afterwards the Tithes not being paid the Parson sued him in the Court Christian and the other prayed a Prohibition And it was agreed that if no interest of Tithes passe but a bare Covenant then the party who is sued for the Tithes hath no remedy but a Writ of Covenant And the better opinion of the Court in this case was that this was a bare Covenant and that no interest in the Tithes passe The custody of a Copyholder that was a Lunatick was committed to Darcies case in the Common Pleas. I. S. and for Trespasse done upon his Land it was demanded of the Court in whose name J. S. should bring the action and their opinion was that it should be in the name of the Lunatick Trinity 16. Jac. In the Kings Bench. The Earl of Northumberlands Case THe Earl of Northumberland being seised of the Mannor of Thistleworth in which he had a Leet to be holden twice a year to wit within a moneth after Easter and a moneth after Michaelmas and Henry Devell being a Free-holder of the said Mannor erected a new Dove-coat at Heston within the Precinct of the said Leet which was presented at the Leet for a common Nusance for which Devell was amerced 40 s. and was commanded to remove it upon pain of 10 l. for the which a Distresse was taken by Henry Sanders and others as Bailiffs to the said Earl wherupon Devell brought a Replevin and they made Avowry and justified as Bayliffs and prescribed that they used to make by-laws to redresse common Nusances and also prescribed in the Distresse And the point in question was whether the new erecting of a Dove-coat by a Free-holder were a common Nusance punishable Whether the erecting of a Dove-coat be a common Nusance in the Leet And it was resolved by the whole Court upon
provided that if the Rent upon the second Lease be arrear that the Lessor may enter the first Lessee surrender a rent-Rent-day incur the second Lessee doth not pay the Rent the Lessor shall not enter for a Forfeiture because the first Lease determined by an act which lies properly in the Conusance of the Lessor and because he was to take advantage by it he ought to have given notice therof to the Lessee and here he might have well given notice to the Defendant for it lies properly in the Conusance of the Plaintiff The second Objection was that here was an implied notice because the Marriage was at the instance of the Defendant which implies a notice Vnder favour this is no notice for this is before the marriage but if no notice be given after the marriage then there is no notice But by Serjeant Davies there is a sufficient implication and there is no need of notice in our case and see Co. lib. 8. Francis his case where they ought to take notice at their perill and a marriage is an Ecclesiasticall Iudgment of which he ought to take notice and he was interrupted for all the Iustices went to the Parliament And divers Presidents were cited that there need no notice to be given in this case And it was agreed that Iudgment should be given for the Plaintiff And in Trinity Term next following Iudgment was accordingly given for the Plaintiff The same Term in the same Court Sir George Reynolls Case SIr George Reynoll Marshall of the Marshalsey of the Kings Bench What Bonds a Sheriff or Marshall maâ— take â—rought Debt upon a Bond the Condition wherof was that the Defendant shall be a true Prisoner and it was doubted whether the Bond were within the Statute of 23 H. 6 cap. 10. Doderidge It is not to be understood by this Statute that a Sheriff Gaâ—ler or Marshall shall take no Bond for if the Marshall hath a man in execucution and fear that he will escape and he takes Bond of him this Bond is good Jones The intent of the Statute that the Sheriff or Marshall shall not suffer Prisoners to go at large for that is within the Statute And it was ruled in the Kings Bench that the Marshalsey should be enlarged Within the Rules of Bâ— what it is and this shall be called within the Rule and if the Marshall take a Band to tarry there it is good but if he suffer him to go at large it is not good The same Term in the same Court Sury versus Albon Pigot and three other Defendants Intr. Hill 1. Car. Rot. 1. 24. IN an action upon the case for stopping his Water-course the Plaintiff declares that 14. Octob. 22. Jac. he was possessed of the Rectory of M. in Barkshire of which a Curtilage was parcell and that in this Curtilage is and hath been time out of mind a watering place for the watering of the Cattell of the Plaintiff and others and for other necessary uses and that a certain Watercourse had time out of mind flowed from Mildford stream to this Curtilage and that this water filled the said Pond and further that the Defendant well knowing this and intending to dam up the said Watering-course built a stone Wall therupon wherby the Water-course was stopt up to the Plaintiffs damage of 20 l. and this was laid with a Continuando The Defendant plead that 3 H. 8. the said H. 8. was seised of the Mannor of c. and of the said Rectory in his Demesne as of Fee and of a certain peece of Land called the Hopyard lying between the said watering-place and the said stream and by his Letters Patents granted this to Wiliam Box and his Heirs by virtue wherof he was seised Francis Searles entred upon him and was seised and enfeoffed Pigot 20 Jac. by virtue wherof of he was seised c. and the three others justifie as Servants to Pigot that they the said day and year filled up the said Water-course as it was lawfull for them to do and Whether unity of possession in severall lands shal destroy a Water course that this is the same Trespasse c. The Plaintiff demurs And the question is whether the unity of possession of all in H. 8. hath extinguished the Water-course And by Dorrell for the Plaintiff if it were of a Common it is cleer that it is destroyed because Common ought to be in another mans Land but not in our case for if one prescribe to have Warren if he purchase the Land yet he shall have Warren 11 H. 7. 25. there are two houses and the one prescribe that the other shall mend the Gutter and afterwards they come to the hands of one man and then he alien one of them this unity shall destroy the mending of the Gutter Berd for the Defendant that the unity hath destroyed the custom 21 E. 3. 2. A way is but an easement yet by the purchase of the Land the way is extinguished and also the watering-course is not only an casement but a profit or Prender and he cited Dyer 295. in case of an Inclosure that the Inclosure is extinguished but there is made a quaere and he cited 38 Eliz. in C. B. an opinion that by purchase of a Close the Inclosure is extinguished a fortiori here because it is a profit And for the case of 11 H. 7. it is by the custom of London but there is no custom in our case and the case of a Warren is not like to our case because a man may have Warren in his own Soil And in Michaelmas Term next the case was argued again by Barkesdale for the Plaintiff that the unity of possession in H. 8. had not extinguished the Water-course and that the Terminus ad quem and the Medium also being in one had not distinguished nor destroyed it And 1 Col lib. 4. 26. Benedicta est expositio quando res redimitur a distructione The Law will not destroy things but the Law will somtimes suffer a fiction which is nothing in rerum natura ut res magis valeat I confesse that profit apprender as Common or Rent is extinguished by unity of possession for Common it appeareth in 4 E. 3. and Co. lib. 4. Terringhams case And for Rent it appeareth in 4 H. 4. 7. and in 21 E. 3. 2. it appeareth that a way is extinguished by unity of possession 3 H. 6. 31. Brook Nusance 11. for it is repugnant for a man to have a way upon his own Land But I conceive that our case differs from the case of a way and that for this reason where the thing hath a being and existence notwithstanding the unity there it is not destroyed by the unity but the Water-course hath a being notwithstanding the unity ergo c. I will prove the major proposition by these cases 35 H. 6. 55 56. Where a Warren is not extinct by a Feoffment of the Land for I may hawk and hunt in my