H. 6. 3. This priviledge by the canon which gives that shall be taken strictly And so is the opinion of their own expositors see Panormitan Canon 37. So that there is an apparant difference between that and the lands which came to the King by the statute of 31. H. 8. For by that the King is discharged of paiment of tythes and so are his Patentees It seems to me that the construction of the Cannon may be in another course different from the rules of the common law as it was ajudged in Buntings case that a woman might sue a Divorce without naming her Husband very well and 11. H. 7. 9. The pleading of the sentence or other act done in the spiritual Court differs from the pleading of a temporall act done in temporall Courts and 34 H. 6. 14. a Administration was committed upon condition that if the first Administrator did not come into England that he should have the Administration which is against the Common Law for there one authority countermands another and 42 Ed. 3 13. A Prior which hath such priviledge to be discharged of Tithes makes a Feoffment and his Feoffee payes Tithes to the Prior and this was of Lands which were parcell of the possessions of Saint Johns of Jerusalem and upon that he inferred that this priviledge is personall and if it be so it is determined by dissolution of the order as it is determined in 21 H 7. 4. That all Parsonages impropriate to them by the dissolutions are become prsentable and so of these which were annexed to the Templers for these shall not be transferred to Saint Johns though that the Lands are 3 Ed. 1. 11. By Herle accordingly Fitz. Natura Brevium 33 K. and 35. H. 6. 56. Land given in Frankalmaine to Templers and after transferred to Hospitallers of Saint Johns the priviledge of the Tenure is paid and so shall it be in case of Tithes being a personall priviledg that shall not be transferred to the King and to the Statute of 32. H. 8. The generall words of that do not extend to discharge the Land of Tithes though that the Statute makes mention of Tithes if there be not a speciall provision by the Statute that the Lands shall be discharged and this appears by the words of the Statute of 31 H. 8. where the general words are as generall and beneficiall as the words of this Statute and yet there is aspeciall provision for the discharge of the payment of tithes by which it appears that the generall words donot discharge that and so the generall words of 1 Ed. 6. are as larg and beneficiall as the generall words of the Statute of 31 H. 8. And yet this shall not discharge the Land of payment of Tithes and this compared to the Case of the Marquesse of Winchester of a writ of Errour that that shall not be transferred to the King by Attainder of Land in taile for treason by the Statute of 26 H. 8. or 33 H. 8. And so of rights of action and so it was adjudged in the time of H. 8. that if the founder of an Abby which hath a Corrody be attaint of Treason the King shall not have the Corrody and he agreed that the Hospitall of Saint Johns of Jerusalem is a house of Religion for this is agreed by Act of Parliament and the word Religion mentioned in the Statute more then seventeen times and also it seems to him that the Statute of 31 H. 8 shall not extend to that for this gives and establishes Lands which come by grant surrender c. And that shall not be intended those which come by Act of Parliament no more then the statute of 13 Eliz. extends to Bishops 1. and 2. Phillip and Mary Dyer 109. 38. The statute of Westminster the 2. chap. 41. Which gives Contra formam collationis to a common person founder of an Abby Priory Hospital or other house of religion without speaking expresly of a Bishop and yet it seems that this extends to an alienation made in Fee simple or Fee taile by the Bishop 46 Ed. 3. Forfeiture 18. But it is resolved in the Bishop of Canterburies Case 2 Coke 46 that the statute of 31 H. 8. shall not extend to these lands which come to the K. by the statute of 1 Ed. 6. to make them exempt from paying of Tithes and to the Case in 10. Eliz. that is but an opinion conceived and that the Prior hath this priviledge from Rome and that the Farmer shall pay Tithes and the question was in the Chancery and upon consideration of the statute of 31 H. 8. It seems that the Patentee himself shall be discharged as long as by his own hands he tills it and the statute of 32. H. 8. Upon which the state of the question truly consists was not considered and also it was not there judicially in question And to the case of Spurling against Graves in Prohibition consultation was granted for that that the statute was mistaken and so the award was upon the form of the pleading only and not upon the matter and so he concluded and prays consultation Houghton Serjeant to the contrary and he agreed that it is a personall priviledg and if the Order of St. Johns had been dissolved by death that then the priviledg shall be determined and this appears by the Stat. of 2. H. 4. 4. before cyted and also the case of 10. Eliz. Dyer 277. 60. did doubt of that but he relyed upon the manner words of pleading that is that Hospitallers are not held to pay Tithes it is as a reall composition made betwixt the Lord and another Spirituall person of which the Tenants shall take advantage as it is resolved in the Bishop of Winchesters case Also as if a man grant a Rent charge if the Grantee dye without Heir the grant is determined But if the Grantee grant that over and after dyes without Heir yet the Rent continues 27. H. 8. Or if Tenant in tayl grant Rent in fee and dies the grant is void But if he after suffers a recovery or makes a Feofment the Rent continues good till the Estate taile be recontinued as it is resolved in Capels case So here the order of Templers hath been determined by death the priviledg hath been determined but insomuch that the Land was transferred by Parliament to the King this continues Also the words of the Statute of 32. H. 8. are apt not only to transfer all the Interest which the Pryor had in his Lands but also his Priviledges and Immunities to the King and he agreed it is not material if the words Tythes are mentioned in the Statute or not But the word upon which he relyes and which comprehends this case is the word Priviledg which takes away the Law for where the Law binds them to pay Tithes the priviledg discharges them And the words of the Statute are taken in the most large extent that is all Mannors c. Priviledges
every Knight and that diverse of those Fees were received and this office being litigious were delivered to be detained in Deposito and to be delivered to him which was Officer and the plaintiff brought an Action by the name of Chester as Officer and recovered those Fees and this was resolved good Seisin and also that Seisin after the grant of the Office and before the investing of the Patentee by the Marshall was good for the Investing was but a ceremony it was also resolved that where an office extends to all the parts of England and that here an Assise doth not lie in any County though that the dissesin were made in one County but the Assise be brough for the profit of the office in one County and not for the office it selfe 43. Ed. 3. Feoffments and Deeds That by Grant of the profits of a Mill and Livery the Mill it selfe passes so that taking of the profits is dissesin of the office also it was objected that the Demandant was no officer for though that he hath a Patent of it yet he was not Invested nor Installed in the office which appeares to the Marshall and for that he was no Officer and so hath no cause to have Action And that this is an office which is incident and annexed to the office of Earle Marshall and though that he be not Earle Marshall yet there are Commissioners have his power and authority and for that the Investing and Instalment of the Plaintiff in the said office appeares to the said Commissioners but it was resolved cleerely by all the Justices that the Demandant was Officer by the Kings Grant without any Installation or Investing and that this without that all the Fees and Profits of the office appertayning to him and that the Investing and Installation was but a ceremony in the same manner as if the King hath a Donative and gives that to another the Donee shall be in actuall possession by the gift without any Induction or other ceremony But admitting that the office were annexed to the office of Earle Marshall then it was agreed that the Commissioners cannot give it as the cheife Justice of the Common â—ench hath divers offices appertaining to his place and he may dispose of them But if he die the King in time of vacancy nor the most ancient Judges cannot give or dispose of any of them being void as it appeares by Serrogates Case Eliz. Dyer And so the cheife Justice is made and allwaies hath been made by Patent and so are the other Justices and for that they cannot be made by Commissioners and so the cheife Justice of England hath all times been made by Writ and for that cannot be made by Patent nor by Commission And so in the case at the Barr though that the Commissioners have the power and authority of the Earle Marshall yet they are not Earle Marshall it was also objected that the Fees were not due to the Plaintiff for that he did not attend But to that it was answered and resolved that the Fees were due to the office and for that non attendance of the office was no forfeyture of the Fees And upon these resolutions the Recognitors found for the Demandant according to the direction of the Court. Trinity 7. Jacobi 1609. In the Kings Bench. Godsall GODS ALL and his Wife The Proclamations of the Fyne were well and duly entred in the Originall remaining with the Chirographer But in the Transcript with the Custos brevium was error and it seemeth that this notwithstanding the Fyne was good but the Transcript was amended Trinity 7. Jacobi 1609. In the Kings Bench The Town of Barwicke THE King which now is by his Letters Patents Incorporated the Mayor Bayliffs and Burgesses of Barwicke and granted to them the execution of the Returne of all Writs And after a Writ of Extendi facias was directed to them and they made no returne of that and upon this was the question if that shall be executed by them or by the Sheriff of Northumberland And it seemed to Nicholls Serjeant that argued for the Plaintiff in the extent that desired execution and the returne of that that they ought to make execution and returne for it seemes to him that this was English and that this appeares by the Act of Parliament by which the Incorporation was confirmed and so it appeares also by the Letters Patents of the King by which the Incorporation is made for if it were not English neither the Letters Patents nor the Act of Parliament are sufficient to make Incorporation of that and also they certified Burgesses to the Parliament of England And the Kings Bench sent Habeas Corpus to it and for the not returne of that inflicted a Fyne upon the Corporation See 21. Ed. 3. 49 and 1. Ed. 4 10. But Hutton Serjeant seemed to the contrary and that they ought not to make execution for he said it is a part of Scotland and not part of England and it was conquered from that and it was a Sherifwicke and hath the same priviledges of ancient times which they now have by their new Grant See 24 Ed. 1. and 2. Ed. 2. Obligation c. That one Obligation dated there shall not be tryed in England and also that it is not within the County of Northumberland nor part of it nor the Sheriff of Northumberland cannot meddle in it see 2. H. 7. 31. 26. H. 6. 23. and it is adjourned It seemes that Jacob and James are all one name for Jacobus is-Latine for them both but Walmesley conceived that if he be Christened Jacob otherwise it is as if one be Christened Jacob and another James then they are not one selfe same name Note that Coke cheife Justices said that if Commissioners by force of Dedimus potestatem take a Fine of an Infant that they are Fynable and ransomable to the value of their Lands and that this shall be sued in the Star chamber Trinity 7. Jacobi 1609 In the Common Bench. Robinson RObinsons Case A man devises Lands to his Wife for life the remainder to his Son and if his Son dies without Issue not having a Son that then it should remaine over and it seemed that this it a good Estate tayl and it was adjudged accordingly If a man makes a Lease for three yeares or such a small Tearme to his Son or Servant to try an Ejectione Firme or if it be made to another Inferion by a Superior which cannot countenance the Suit it shall not be intended Maintenance nor buying of Tytles which shall be punished Trinity 7 Jacobi 1609. In the Common Bench. NOte an Attorney of the Common Bench was cited before the High Commission and committed to the Fleet for that he would not swear upon Articles by the Commissioners ministred and Habeas Corpus was awarded to deliver him and a Prohibition to the Court of high Commission see 1. and 2. Eliz. Scroggs case
charge to the King and to the Common Wealth and the execution of Writs may be prejudicall and penall to the Sheriff himselfe And for that he may well provide that he shall have notice of every execution which are most Penall And also in all the Indenture now made he doth not constitute him to be his under Sheriff but only for to execute the Office and for these reasons he seemed the Obligation is good and demands Judgement for the Plaintiff But it seemes to all the Court that the Covenant is void and so by consequence the Obligation as to the performance of that void but good to the performance of all other Covenants And Coke cheif Justice said that the Sheriff at the Common Law was elligible as the Coronor is and then by the death of the King his Office was not determined and also it is an intire Office and though the King may countermand his Grant of that intirely yet he cannot that countermand by parcells and also that the under Sheriff hath Office which is intire and cannot be granted by parcells and this Covenant will be a meanes to nourish bribery and extortion for the Sheriff himselfe shall have all the benefit and the under Sheriff all the payn for he is visible the under Sheriff and all the Subjects of the King will repaire to him and the private contracts between the Sheriff and him are invisible of which none can have knowledge but themselves And Warburton sayd that in debt upon escape c. are against the Sheriff of Notingham he pleaded Nihil debet and gives in evidence that the Bayliff which made the Arrest was made upon condition that he should not meddle with such executions without speciall warrant of the Sheriff himselfe and his consent but it was resolved this notwithstanding that the Sheriff shall be charged in and in the principall case Judgement was given accordingly that is that the Covenant is void Note that the Sheriff of the County of Barkes was commited to the Fleete for taking twenty shillings for making of a warrant upon a generall Capias utlagatum for all the Justices were of opinion that the Sheriff shall not take any Fees for making of a warrant or execution of that Writ but only twenty shillings and foure pence the which is given by the Statute of 23. H. 6. for it is at the Suit of the King But upon Capias utlagatum unde convictus est which is after Judgement it seemes it is otherwise A man grants a Rent to one for his life and halfe a yeare after to be paid at the Feasts of the Anunciation of our Lady and Michaell the Archangell by equall portions and Covenants with the Grantee for the payment of that accordingly the Grantee dies 2. Februarâ—… and for twenty pound which was a moyity of the Rent and to be payd at the anunciation after the Executors of the Grantee brings an Action of Covenant and it seems it is well maintainable And Coke cheife Justice sayd That if a man grants Rent for anothers life the Remainder to the Executors of the Grantee and Covenant to pay the Rent during the Tearm aforesayd this is good Collective and shall serve for both the Estates and if the Grantee of the Rent grant to the Tenant of the Land the Rent and that he should distrain for the sayd Rent this shall not be intended the same rent which is extinct but so much in quantity and agreed that when a Rent is granted and by the same Deed the Grantor covenants to pay that the Grantee may have annuity or Writ of Covenant at his Election Michaelmas 7. Jacobi 1610. In the Common Bench. Waggoner against Fish Chamberlain of London JAMES Waggoner was arrested in London upon a Plaint entered in the Court of the Maior in Debt at the suit of Cornelius Fish Chamberlain of the sayd City and the Defendant brought a Writ of Priviledge returnable here in the Common Pleas and upon the return it appears that in the City of London there is a custome that no forrainer shal keep any shop nor use any Trade in London and also there is another Custome that the Maior Aldermen and Commonalty if any custome be defective may supply remidy for that and if any new thing happen that they may provide apt remedy for that so if it be congruae bonâ— fidei consuetudo rationi consentiae pro communi utilitate Regis civium omnium aliorum ibidem confluentium and by Act of Parliament made 7 R. 2. All their customes were confirmed and 8 Ed. 3. The King by his Letters Patents granted that they might make By-Laws and that these Letters Patents were also confirmed by Act of Parliament and for the usage certified that in 3 Ed. 4. and 17. H. 8. were severall acts of Common Councell made for inhibiting Forrayners to hold any open shop or shops or Lettice and penalty imposed for that and that after and shewed the day in certain was an Act of Common counsell made by the Mayor Aldermen and Commonalty And for that it was enacted that no Forrayner should use any Trade Mistery or occupation within the said City nor keep any Shop there for retayling upon payn of five pound and gives power to the Chamberlain of London for the time being to sue for that by Action c. in the Court of the Mayor in which no Essoyn nor wager of Law shall be allowed and the said penalty shall be the one halfe to the use of the said Chamberlain and the other half to the poor of Saint Bartholomewes Hospitall And that the Defendant held a shop and used the Mistery of making of candles the seventh day of October last and for that the Plaintiff the ninth day of the same month then next insuing levied the said plaint And upon this the Defendant was Arrested and this was the cause of the taking and detaining c. And upon argument at the Bar by Serjeant Harris the younger for the Defendant and Hutton for the Plaintiff and upon sollemne arguments by all the Justices Coke Walmesley Warburton Danyell and Foster it was agreed That the Defendant shall be delivered and not remanded And the case was devided in to five parts The first the custome Secondly the confirmation of that by Act of Parliament Thirdly the grant of the King and the confirmation of that by Act of Parliament Fourthly the usage and making of Acts of common councell according to this Fiftly the Act of common councell upon which the Action is brought and upon which the Defendant was Arrested And to the first which is the custome it was also said that this consists upon three parts That is first if any custome be difficult Secondly if it be defective Thirdly if Aliquid de novo emergit The Mayor Aldermen and Commonalty Possunt opponere remedium and that there are foure incidents to that remedy First it ought to be Congruum Retione
in Prison and agreed that if 2 Precipes are contained in one Originall there shall be but one satisfaction But if one be taken by Capias and remains in Execution Capias shall be awarded against the other and he shall remain in Prison till satisfaction be had for execution is no satisfaction as it is said in 29 H. 8. b. Execution 132. adjudged See 4 Ed. 4. 38. 5 Ed. 4. 4 H. 7. 8. And Hillaries case 33 H. 6. And to the third that is that the Debt remains after the taking of the body in execution and agreed that when execution is made of goods or lands no Debt remains but otherwise it is of execution of the Body as it appears by 29 H. 8. before cyted B. Execution 132. and 41 Assis 15. where a man was condemned in Damages in Trespass and committed to Prison by Capias and escaped the Gaoler dyed the Plaintiff prayed debt against his Executors and could not have it for they are not charged without specialty and the Plaintiff alleadged that the Defendant was vagrant in the County of M. and prays Capias to the Sheriff of M. to take him and it was granted for his remedy against the Sheriff was determined and this proves also that the Debt remains after escape scire facias is licet Judicium redditum sit tamen executio restat ad huc facienda de debito for the body is but as a pledg the form of the Writ in the Register Capias ad satisfaciendum and not in satisfaction which proves that there is no satisfaction but upon the payment of the money his body shall be delivered out of Prison this is execution with satisfaction for there are two Executions that is Medius finalis the first is the Capias the second Satisfaction which is Vltimus Finis And it is a good rule quod nihil videtur factum ubi aliquid restat faciendum and here is aliquid faciendum that is Satisfaction for in all acts there is a beginning progression and consummation Consummation in this case fails Mors est horendum divortium which is the act of God And when the act of God hath delivered him which lyes in prison for his own default it is no reason that the Plaintiff should be prejudiced 43 Ed. 3. 27. A man enfeoffs the Father with Warranty which infeoffs an estranger which enfeoffs the son the father dyes the son may vouch for it is the act of God And to the Mischiefs nec crudelis creditor nec delicatus debitor sunt audiendi for they play at Bowls and keep Hospitality in the Prison Or if a man be arrested and makes a tumult and is slain in indeavouring to break the Prison and breaks his Neck it is no reason that he by such act should defraud the Plaintiff of his Debt the opinions against him are coupled with absurdities as 7 H. 6. 8. Martins opinions is also imparted with absurdity 33 H. 6. 48. The opinion of Lacon is also coupled with another absurdity and 22 Assis b. Execution is also coupled with absurdity that is if the Defendant escape this determines the debt and is satisfaction and 15 Edw. 3. Quare Impedit 174. in Writ of Right of Advowson the Plaintiff hath Judgment and habere facias sesinam in the life time of the Incumbent and after his death sues Scire Facias the first is Execution but not with satisfaction and the last is satisfaction for by this he hath the fruit of his Judgment So 19 Ed. 3. Execution 12. a younger statute is extended and Liberate sued executed and returned And after an elder statute is extended and after satisfaction of that he that hath the youngest may sue Scire Facias and have execution of the youngest So of Beasts distrained and put into the Pound and there dye he which distrayned may distrayâ— again for this is no satisfaction of his Rent 14. H. 4. 4. 15 Edw. 4. 10. 11 Eliz. Dyer 280 And so Capias ad computandum is not Accompt nor Capias ad acquietandum Acquital Register 30. 39. 285. And it is said in Bract. lib. 7. Chap. 17. Sunt brevia Magistralia fâ—rmata the first are made by Masters of the Chancery the others which are Originall by Cursitors which are founded by acts of Parliament and cannot be changed without Parliament and as Fitzherbert in his Preface to his Na. Bre. saith that every Art and Science hath certain Rules and Foundations to which a man ought to give faith credence and the Writ of Fieri facias being founded upon a Statute and the form that executio adhuc restat facienda he saith that this was the Judgment of the Parliament that the first Execution was not Satisfaction But as the Writ is also in the Register 245 That where a man is condemned in Trespasse and committed to prison detinendum quousque he satisfie the party by this it appears that he is but a pledge And Fitz. Na. Bre. 63. 65. 67. and Register If a man be taken by Capias Excommunicatum ad satisfaciendum parendum Clavibus Ecclesiae and is delivered by Writ which issues improvide another Writ of Capias shall be awarded And to the matter of Election he agreed that if Elegit were awarded the party cannot have Fieri facias nor Capias for there is Entry made quod Elegit sibi executionem de meditate But when Fieri facias or Capias is awarded no entry at all is made But if any of them are returned executed then he cannot resort to another Processe and with this difference agrees all the Books of 15 H. 7. 15. 21 H. 7. 19. 30 Ed. 3. 24. 31 Edw. â—3 Process 52. 19 H. 6. 4. 34 H. 6. 20. 45 Edw. 3. 19. 50 Edw. 3. 4. and 5. 18 Edw. 4. 11. 20 Edw. 4. 13. 11 Eliz. Dyer 296. And to the case of Williams and Cuttrys cyted to be adjudged 43 Eliz. the which he cyted as Lambs case he said in this was many apparent Errors in forme of pleading so that the matter in Law cannot come to Judgment 35 H. 6. Prisot seemed that by the law of God the Imprisonment of the body of a man was no satisfaction for by that the Creditor may sell his Debtor and his Children for the payment of his Debts Matth. chap. 18 vers 24. 4 Kings 4 Chap. vers 1. Matth. chap. 5. Luke chap. 12. And so he agreed with Foster in opinion and concluded that the death of the Defendant in the action of Debt was no satisfaction nor determination of the Processe nor of the election But that the Plaintiff may have new Execution against the Executors and by consequence that Judgment shall be given for the Plaintiff in the Scire facias but no Judgment was given for that there was equality of opinions that is Coke and Foster against Walmesley and Warburton Danyel being dead and for that it was adjourned Pasche 8. Jacobi 1610. See Hillary 7. Jacobi the beginning Chalke
Iac. against Invocation c. for these words The Devil appeareth to thee every night in the likeness of a black Man riding on a black Horse and thou conferrest with him and whatsoever thou dost ask he doth give it thee and that is the reason thou hast so much money and this I will justifie Judgement for the Plaintiff In Trover Judgement by Nihil dic and Exception taken to the Declaration to stay the filing the Writ of Inquiry because no day of the conversion was in the Declaration and by two Judges held naught Mich. 14. Iac. PArker versus Parker Hill 12. Iac. rotulo 426. In Trover after a Verdict it was moved in Arrest of Judgement that the imparlance Roll was entred with Spaces for the possession and conversion but both those Spaces in the Issue were filled up and held good The Imparlance was entred Mich. 12. Iac. rotulo 547. WHitepain versus Cook Pasch 12. Iac. For words Thou art a Rogue and I will prove thee a Rogue no Judgement STone versus Bates A man may well incourage one that was robbed to cause the Felon to be indicted and accompany him to the Assizes and this shall be lawfull for to do without incurring the danger of an Action upon the case upon conspiracy but if he knew that he was not robbed then he is in danger of the Action upon the case COpe and his Wife administratrix Plaintiffs versus Lewyn Trin. 12. Iac. rotulo 1714. An Action upon the case brought upon a promise made to the Intestate and in the Court omits to shew the Administration and after Triall that Fault moved in Arrest of Judgement and the whole Court was of opinion that he should not have his Judgement for it did not appear that he was Administrator for at the Common Law no Administration lay but the Ordinary ought to have the Goods HArvey Attourney versus Bucking Mich. 12. Iac. rotulo 842. Action of the case for slanderous words He meaning the Plaintiff shewed me first a Bill of fourty pounds without a Seal meaning the said Bill by the said E. as aforesaid sealed and delivered and afterwards he shewed me the same Bill with a Seal and he meaning the Plaintiff hath forged the Seal of the same Writing meaning the Seal of the said Bill by the said E. as aforesaid sealed and delivered The Defendant traverses the words and a Verdict for the Plaintiff and it was alleadged in Arrest of Judgement that the Declaration was naught for that it did not directly appear that there was any communication between the Plaintiff and Defendant concerning the Bill but onely in the inuendo which will not maintain the Action and Judgement arrested MOrton versus Leedall Hill 10. Iac. rotulo 1783. Action upon the case for these words He is a lying and dissembling Fellow and a mainsworn Fellow And a Verdict for the Plaintiff And afterwards it was moved in Arrest of Judgement that the Action would not lie but at length Judgement was given for the Plaintiff And Serjeant Hutton cited the like case adjudged in t Barnes He is a mainsworn Villain 〈◊〉 Skipwash SKipwash versus Skipwash Hill 14. Iac. rotulo 3472. Action upon the case that whereas the Defendant in consideration that the Plaintiff would marry one A. B. did assume to pay the Plaintiff twenty pounds when he should after the Marriage be thereunto requested The Plaintiff alleadges no special Demand and that Fault was moved in Arrest of Judgement Hobart and Wynch were for the Plaintiff Warburton for the Defendant JOtham versus Ball Hill 12. Jac. rotulo 1920. Action upon the case for slanderous words Videlicet Your Master Euseby meaning the Plaintiff is a Rogue a Rascall and Forger of Bonds the Plaintiff laid a Colloquium between the Defendant and one R. G. And after Verdict moved in Arrest of Judgement for that it did not expresly appear that the said R. G. at the time of speaking the words was Servant to the Plaintiff and Judgement was stayed by the Court. COddington versus Wilkin for words Trin. 12. Iac. He is a Theif and why will you take a Theifs part spoken 1. Martii 10. Iac. The Defendant justifies the words because the Plaintiff stole Sheep The Plaintiff by way of replication sets forth a general Pardon granted such a time and further saith that if any Felony were committed it was before the general Pardon made and shews himself to be a Subject and no person excepted in the Pardon The Defendant demurs The Court were of opinion that by the Pardon both the Punishment and Fault were taken away and that the wrong was done to the King by the Common Law and the King being the supreme Head if he pardons the party is cleared of the wrong As if a Villain be infranchised he from thenceforth is no Villain Note if a man upon good consideration promise to become bound to another by his Obligation to do an Act and if he do not become bound Action upon the case will lie against him and the Plaintiff is not bound to tender him an Obligation but the Defendant hath took it upon himself to do it RIchards versus Carvamell Action of the case brought and counts for non-payment of money at the Plaintiffs next coming into the County of Somerset and avers that such a day he came into the County of Somerset Videlicet apud T. in Com. Somerset and that the Defendant though often requested hath not paid And Exception taken because the Plaintiff did not alleadge in his count that he gave notice to the Defendant when he came into the County of Somerset but not allowed and Judgement given for the Plaintiff And note when a man assumes to pay money or do any thing upon condition the Defendant may take Issue upon the condition and needs not plead Non assumpsit but if he pleads Non assumpsit then he confesses the performance of the condition which mark AVstin versus Jarvis Trin. 13. Jac. rotulo 2180. The Plaintiff declares that such a Day and Year he bought of the Defendant a Horse for a peice of Gold of the value of 22. s. by him to the Defendant then in hand paid and for a 11. l. to be paid to the Defendant at the Day of Death or Marriage of the Plaintiff which should first happen for payment of which 11. l. the Plaintiff should bring to the Defendant one sufficient man to be bound together with the Plaintiff to the Defendant the Defendant in consideration thereof assumes to deliver the said Horse to the Plaintiff when he should be thereunto requested and the Plaintiff avers that such a Day he brought the Defendant one sufficient man Videlicet I. A. de B. Yeoman to be bound together with the Plaintiff to the said Defendant for the payment of the said 11. l. and shews that he requested the Defendant to deliver the said Horse yet the Defendant hath not delivered
matter of form For if the Jury finde a prior grant of the Queen to the Plaintiffs Lessor although it be at another Court it is sufficient and so by consequence the day is not materiall in substance which mark But Williams Justice and the rest held the traverse to be naught for by that the Jury should be bound to finde the Copy such a day by such a Steward which ought not to be and that it was matter of substance not helped by the Statute of 18 Eliz. DArby versus Bois Hill 5. Jacobi An Ejectment brought for an House in London and upon not guilty pleaded The Jury found a speciall Verdict And the case was Tenant in tail of divers Messuages in London 7 January 44 Eliz bargains and sels the said Houses to J. S. and delivers the Deed from off the Land the 8. of January the same yeer Indentures of Covenants were made to the intent to have a perfect recovery suffered of those houses and the ninth of January after a Writ of right is sued in London for those Messuages returnable at a day to come And the tenth of January the same yeer the Tenant in tail makes livery and seisin to J. S. of one of those Houses in the name of all And the other Messuages were in Lease for yeers and the Lessees did not atturn And the question was if the Messuages passed by the bargain and sale or by the livery And it was adjudged that they passed by the bargain and sale And Yelverton took a difference between severall Conveyances both of them Executory and where one of them is executed presently as in Sir Rowland Heywoods Case where divers Lands were given granted leased bargained and sold to divers for yeers the Lessees were at election whether they would take by the bargain and sale upon the Statute of 27 H 8. or by the demise at the Common Law But otherwise it is if one be executed at first for then the other comes too late as it is in this Case for by the very delivery of the bargains and sale the Land by the custome of London passes without inrollment for London is excepted and this custome was found by the Verdict And therefore it being executed and the Conveyance being made perfect by the delivery of the Deed without any other circumstances the livery of sesin comes too late for it is made to him that had the Inheritance of the Messuage at that time And the possession executed hinders the possession executory for if a bargain and sale be made of Land and before inrollment the bargain takes a deed of the said Land this hinders the inrollment because the taking of the livery did destroy the use which passed by the bargain and sale which was granted by the Court. And another reason was given because it appeared that the intent of the parties was to have the Land passe by the bargain and sale because it was to make a perfect Tenant to the Precipe as appears by the subsequent acts as the Indentures Covenant and the bringing the Writ of Right c. All which will be made frustrate if the livery of seisin shall be effectuall and when an Act is indifferent it shall be taken most neer to the parties intents that may be if a man hath a Mannor to which an advowson is appendant and makes a Deed of the Mannor with the appurtenances And delivers the Deed but doth not make livery of seisin yet now although the Deed in it self was sufficient to passe the Advowson yet because the party did not intend to passe it in Posse but as appurtenant if the Mannor will not passe no more shall the Advowson passe alone as it was agreed 14 Eliz in Andrews Case Which mark And the whole Court gave Judgment accordingly that the Defendant who claimed under the bargain sale should enjoy the Land CHalloner versus Thomas Mich. 6. Jacobi A Writ of Error was brought upon a Judgement given in Ejectment in the Courâ— of Carmarthen and Yelverton assigned the Error because the Ejectment was brought de aquae cursu called Lothar in L. and declares upon a Lease made by D. de quidam rivulo aquae cursu And by the opinion of the whole Court the Judgement was reversed for rivulut seâ— aque cursus lye not in demand nor doth a precipe lye of it nor can livery and seisin be made of it for it cannot be given in possession but as it appears by 12 H. 7. 4. the Action ought to be of so many Acres of Land covered with water but an Ejectment will well lye by if a stang for a precipe lies of them and a woman shall be indowed of the third part of them as it is 11. E. 3. But if the Land under the water or River do not pertain to the Plaintiffe but the River onely then upon a disturbance his remedy is onely by Action upon the Case upon any diversion of it and not otherwise Which observe VVIlson versus Woddell Mich. 6. Jacobi The Grand-father of the Plaintiffe in an Ejectment being a Copy holder in fee made a surrender thereof to L Woddell in fee who surrendred it to the use of Margery I. for life who is admitted c. But L Woddell himself never was admitted The Grandfather and Father dye the Son who is Plaintiffe was admitted and enters upon the Land Margery being then in possession and the Defendant then living with her as a servant in those Tenements and this was the speciall verdict And Judgment was given for the Plaintiffe And the Court was of an opinion that the Defendant was found to be a sufficient Trespassor and Ejector though he be but a Servant to the pretended owner of the Land because the Verdict found that the Defendant did there dwell with Margery And in such case he had the true title and had made his entry might well bring his Action against Master or Servant at his election And perhaps the Master might withdraw himself that he could not be arrested And secondly it was adjudged that the surrender of J. S. of a Copy-hold is not of any effect untill J. S. be admitted Tenant And if I. S. before admittance surrender to a stranger who is admitted that that admittance is nothing worth to the estranger For J. S. had nothing himself and so he would passe nothing and the Admittance of his grantee shall not by implication be taken to be the admittance of himself for the admittance ought to be of a Tenant certainly known to the Steward and entred in a Roll by him and it was held that the right and possession remained still in him that made the surrender and that is descended to his Heir who was the Plaintiffe And they took a difference between an Heir to whom the Copy descended for he may surrender before admittance and it shall be good because he is by course of the Law foe the custome that makes him Heir
Writ of Error against Matthew upon a Judgement given in a Quare impedit against the King in the Common Pleas of the Church of A. and the Question was whether a double usurpation upon the King doth so put him out of Possession that he shall be forced to his Writ of Right and it was adjudged in the Common Pleas against the opinion of Anderson that he was put to his Writ of Right but a Writ of Error being brought upon that Judgement in the Common Pleas the Judgement was reversed by the opinion of Popham Yelverton Williams and Tamfeild Fennor being of a contrary opinion and they alleadged two Reasons first because the Right of Patronage and the Advowson it self being an Inheritance in the Crown upon Record the Law will so protect it that no force or wrong done by a Subject it shall be devested out of the King for there is a Record to intitle him but there is no matter of Record against him for a Presentationby a Subject is but matter in fait the which Act although it be mixed with the judicial Act of the Bishop to wit Institution yet it shall not prejudice the King being onely grounded upon the wrong of a Subject and the second Reason was because no man can shew when the Usurpation upon the King should commence and begin for it is not to be doubted but that the King after six Moneths passed if the Incumbent cy might have presented for plenarty is no plea against him and Nullnm tempus occurrit Regi and after that Usurpation upon the King the Court doubted not but that the Patronage was still in the King and Popham said that a Confirmation being made by the King to such a Presentee is good to establish his Possession against a Recovery in a Quare impedit by the King afterwards but that it should not inure to any purpose to amend the Estate of the Usurper for he gaines no Posaession by the Presentation against the King but the Release to him made by the King is void as to so much as is in posaession and during the life of the first Presentee the whole Court did not doubt but that the King might present and then the Death of the Incumbent could not make that to be an Usurpation which was not an Usurpation in his life for his Death is a Determination of the first wrong which will rather help then injure the King and Tanfeild said that so it had been resolved in the Common Pleas 23 24 Eliz. in one Yardleys Case for in that Case there was not any Induction for which reason Judgement was not entred but they were all of the same opinion as the Court then was and onely 43 E. 3. 14. 14 E. 3. and 18 E. 3. are against it and Popham said that a Quare impedit was by the Common Law but it was onely upon a Presentment to wit Induction but if the Incumbent was to be inducted then at the Common Law a Writ of Right of Advowson onely lies DIgby versus Fitzch Trin. 14. Jacobi rotulo It was said in this Case by Justice VVarburton that the Presentment is the Posaession in a Quare impedit as in Rent the receiving and in common the taking of the profits and in a Quare impedit one ought to shew in his Title a Presentation either by himself or one of those under whom the Plaintiff claimes as in a Writ of Right of an Advowson one must shew a Presentation in himself or in his Ancestors whose Heir he is plenarty in a Quare impedit shall be tried by the Bishop for the Church is full by Institution onely in common persons Cases but in the Kings Case the Church is not full untill the Clerk be inducted but whether a Church be void or not shall be tried by the Countrey for of Voidency the Countrey may take notice Actions upon Replevins IF the Cattel be distrained the party that owes them may have a Replevin either by Plaint or Writ at his pleasure and if it be by plaint in the countrey and the Bailiff return to the Sheriff that he cannot have the view of the Beasts to make deliverance then the Sheriff ought to inquire of that by Inquest of office and if it be found that the Beast be not to be had then he ought to award a Withernam and if the Sheriff will not do it then an Attachment shall issue against the Sheriff to the Coroners and after that a Distresse and if a Withernam be granted and a nihil returned upon the Withernam he shall have an alias plures and so infinitely and a second deliverance lies after a Withernam and note that sometimes a Withernam lies after a Withernam as when the Plaintiff is non-suit and after a Return habend and that the Beasts are not to be found that the Beasts of the Plaintiff are taken in Withernam and the Plaintiff appears and alleadges that the Defendant had the cattel first taken and prayes Delivery And if the Defendant when the Sheriffe comes to make replevin of the cattel claims property then at the return of that writ another writ de proprietate probanda shall issue to the Sheriff by which writ the Sheriffe is commanded that taking with him custodibus placitorum c. he shall enquire of the property And if it be found that the property was to the Plaintiff then a redeliverance shall be made the Plaintiff and an Attachment against the Defendant to answer for the contempt in taking and unjustly deteyning the cattell of the Defendant appear upon the plures withernam he shall gage deliverance presently And if the Defendant in Court claims the property and it be found against him the Plaintiff shall recover the value of the cattell and his dammages And if the Defendant plead in abatement of the writ that the property is in the Plaintiff and one other c. and the Plaintif confesse it by which the writ shall abate by an award upon the Role and a return habend be awarded to the Defendant yet the Plaintif shall have a new replevin and the return shall not be irreplegiable for the Statute of Westm the second doth not help a false writ or abatement of a writ but the Plaintif may have a new writ from time to time but it helps non-suits in replevin for if he be non-suit he shall not have a new replevin but a writ of second deliverance And if the Defendant upon the return habend adjudged for him cannot have the return of the Beasts and the Sheriff returns upon the return habend that the cattel first taken are dead he may have a Scire facias against the pledges and upon a nihil return upon that he may have a Scire facias against the Sheriff for insufficient pledges are no pledges and the party may relinquish his withernam and fall upon the pledges or the Sheriffe And if cattell be put into a Castle or Fortress the Sheriffe
City the Plaintiff surmising that the Sheriff and Coroners are Citizens of that City may pray a Venire facias to the next County of the body of the County or of the next Villiages in the next County And if the challenge of Kindred be not rightly alleadged in the challenge it matters not if it be Kindred and if a Venire facias be quashed because it was returned by the Under Sheriff who was Kin to him or other good cause it shall be quashed and the Venire facias shall be returned by the high Sheriff with words in it that the Under Sheriff shall not intermeddle with it And if the Array be challenged and affirmed the Defendant may after challenge the Poll and must shew his cause of challenge presently And if the Land in question lye in foure Hundreds if foure of any Hundred appeare it is good and note That the challenge of the Array shall be drawne in Paper and delivered presently after the Jury appeares and the Defendant is not bound to make good his challenge with these words Et hoc parat est ver iscare c. And those that try the principall challenge may also try the challenge upon the Tales if the King had been party alone no challenge was to be allowed but if the suit had been in the name of another who sued as well for the late King as for himselfe in a Writ to inquire of waste after a distress no challenge to the Poll lyes It is good cause to challenge a Juror because he was attainted in a conspiracy or attaint or if any Juror was put into the Pannell at the desire of the party it is good cause of challenge to the Array And if a Jury of two Counties and both Arrayes are challenged two of one County shall try the Array of that County and two of the other County shall try the Array of the other County and they shall not joyne untill they be sworne of the Principall and two of one Hundred and two of the other Hundred doe suffice if in Trespass the Defendant justifie as a Servant to the Lord and by his commandement It is good cause of challenge to the Juror that he is a Tenant to the Lord although the Lord be no party to the Record and if Process by challenge is awarded to the Coroners the Process afterwards shall not goe to the Sheriff although there be another Sheriff but after Judgement execution shall issue to the new Sheriff And where a man challenges the Polls of the principall Pannell he afterwards shall not challenge the Array of the Tales and if the Array be quashed it is entred upon Record but if it be affirmed then it is not entred If Trespass be done in diverse Townes in one Shire they may all be joyned in one Writ to wit why by force and armes the Closes and Houses of the Plaintiff at A. B. and C. have broken and c. WOlsey versus Sheppard Constable The Constable being Defendant justifies the Imprisonment by reason that the Plaintiff kept one Alehouse against the forme of a Statute of Queen Elizabeth and therefore by the warrant of two Justices he was committed to Prison and Issue was that he did not keep an Alehouse against the forme of the Statute aforesaid and indeed the Statute was made in Edw. 6. time and the Jury found that he did keep an Alehouse against the Statute in Edw. 6. time And the Court held the mistaking of the day of the Act is not prejudiciall by way of barr but by way of count it must be layd truly GLasbrook versus Einsey Pasch 16. Jacobi in Assault and Battery the Defendant pleaded not guilty and the next terme after the Writ of Venire facias was awarded the Defendants Attorney would have confessed the Action by Relicta verificatione which the Plaintiff did deny to receive having took out his Venire and that those Errors which had escaped in the proceedings by that confession were not holpen as they are after tryall and it was much controverted by the Court whether the Defendant without the consent of the Plaintiff might confesse the Action and the Court was in severall opinions but because the Plaintiff always prays for the confession it seemed he might refuse the confession and afterwards it was adjudged the confession should not be received because it appeared to the Court to be but a practice to lessen the Plaintiffs Damages COok versus Jenman Trin. 12. Jacobi rotulo 329. An Action of Trespass and Battery was brought the last day of October 10 Jacobi The Defendant as to the force and armes sayes nothing but pleads generally that he and one in the sayd last day of October did joyntly enter into the Plaintiffs at S. and did then and there assault the Plaintiff and that afterwards to wit such a day and yeare the said Plaintiff did by his Writing c. release c. the said R. of all Actions c. And avers it to be the same Trespass whereof the Plaintiff complained and the Plaintiff traverses without this that the Trespass c. was joyntly done and demurrer upon this Plea pretending the Trespass is severall and not joynt and so no satisfaction but it was held a good Plea for the Battery was joynt or severall at the Plaintiffs election to have his Action against one or other And a satisfaction by one is a satisfaction for all and the Plaintiff cannot have severall dammages but one dammage against them all and he hath his choice as in Heydens Case to have the best dammages COok versus Darston Mich. 15. Jacobi An Action of Trespass brought by the Committee of a Lunatique being a Copy-holder to whom the Lord had committed the Lunatique and a stranger sowed the Land and the question was whether the Committee or the Lunatique should have the Action and the Court held the Action should be brought in the name of the Lunatique YOunge versus Bartram Battery brought by the Plaintiff against Husband and Wife and two others the Woman and one of the others without the Husband plead not guilty and the Husband and and the other plead Son assault demesne and tryed and alleadged in arrest of Judgement because the Wife pleaded without her Husband and Judgement stayed and a Repleader by the whole Court CRogate versus Morris If a stranger come over a Common the Lord may have an action but not the Commoner for the petty Trespas multiplicity of actions wil not take away my action except it be a damage whereby I lose my Common I can have no action If a stranger come and eat up my Common a Free-holder may bring an Assize of common for it is a Disseisin for a Disseisin of Common is the taking away the profits of the Common And an action of case will lye against the Lord for cutting down the body of the tree when the Tenant should have the loppings if the Commoner may have his Common
because the first taker hath devested the property out of the Owner The Defendant in this justified the taking of the Mare as a stray and did not alledg that he came as an estray and the Plea was held insufficient and the Court held they could not tye them together And the Defendant said that the Hayward took the Mare and delivered her to the Defendant this was but not guilty and Judgment for the Plaintiff LVttrell against Wood and other Defendants Pasch 40. Eliz. An Action of Trespasse brought wherefore by Force and Armes he broke the Plaintiffs Close and cut down his Trees The Defendant in Barre to the new assignment alledges that he is a Copy-holder for life of the Mannor of Mynehead in the County of Somerset and that in that Mannor there was a Custome that every Copy-holder for life had used at his pleasure to cut downe all the Elmes growing upon his customary Lands and to convert them to his own use when and as often as hee would and so justifies and a Demurrer upon the Barre And the question was whether the Custome was good and reasonable and the later opinion was that it was a good and reasonable Custome but now it is otherwise held Actions of Waste IN Waste the Writ shall be brought where the Waste was committed And the Processe in this Action is Summons Attachment and Distresse peremptory by the Statute of Westminst 2. But at the Common Law the Distresse was infinite And if the Defendant doth not appear upon the Distresse although a Nihil be returned yet the Plaintiff shall have Judgment and a Writ to inquire of damages of the Waste and an Essoine lies as in a Quare Impedit and the Processe shall be executed as in a Quare Impedit and returned from 15 dayes to 15 dayes and the Plaintiff in this Action shall not recover costs but the value of the Waste found by the Jury shall be trebled by the Court for costs shall not be recovered in such Actions as are given by the Statute as in this Action a Decies tantum and Quare impedit And so Judgment is to recover the place wasted and severance lies in this Action Mich. 9. H. 4. rot 104. And note in the tryal of the issue in Waste if the Defendant by his Plea doth not confess the Waste six of the Jury which are impannelled to try the Waste must have the view of the place wasted to the intent that the Plaintiff may be put in possession of the place wasted by the view of the Jury And if the Defendant confesse the Waste the Jury ought only to inquire of the value of the Waste but not who committed the Waste But upon a default upon the grand Distress the Sheriff in his proper person shall repair to the place wasted and there inquire what waste and spoile is done And if he doth not return that he was there in his proper person it is naught But upon a Judgment by non sum informat nil dicit or in a Plea by which the Defendant confesses the waste the Sheriff shall inquire only of the damages And he is not bound to return upon that Writ that he in proper person went to the place wasted And when the Judgment is by default the challenge lies against the Sheriff and if it be denyed it is Errour And if the Plaintiff do not take jungment upon the first distress being returned executed but takes another distress it is Error And no receit lies by the VVife upon the default upon the Distress at the return of the VVrit to inquire of the wast Trin. 6. H. 6. rotulo 133. For if the VVoman at the Assize before verdict doth not pray to be received she shall never be received afterwards in the Court at the return of the Nisi prius And note that the Jury may give severall values and one joynt value of the place wasted but severall values is the better way If a Lessee for yeares makes a Lease of one moity to one man and of the other moity to another man and one of them commit Waste the Action shall be brought against the two for the Waste of one is the Waste of the other if a Lease be made by three to one for life and afterwards two release to the third and the Lessee commits wast he alone shall have a Writ of Waste supposing that hee demised onely If Waste be committed in two Villiages and the Sheriff hath executed his Office naughtily in one Villiage and well in another all shall be inquired of De novo because the whole in Inquisition was but one Inquest at one time but if the Plaintiff assigne the Waste in the Houses and Woods and it doth not appeare by the Count that the Houses were demised and upon a Nihil dicit a Writ to inquire of the damages issues out and the Jury find c. the Plaintiff shall have his of the Houses BEdell against Bedell Trin. 8. Jacobi rotulo 3052. An Action of Waste brought the Case was There is a devise to two for one and twenty yeares the Father and Son and made the Son Executor and he refuses to prove the Will and take the terme and so no Waste committed And if Lessee for life and his Lessor joyne in a Lease for yeares by Indenture and the Lessee for life dye and waste is committed the surviving Lessor shall have the Action of Waste and shall count that he did demise it alone If a Lease be made to Husband and Wife for life and for twenty yeares after their deaths and the Wife dye and Waste is committed the Wife shall not be named in the Wriâ— nor the terme after her death If Husband and Wife during the Coverture make a Lease and Waste is committed they both shall joyne in the Action of Waste And if a Lease be made but for one yeare or for halfe a yeare onely yet the Writ shall be for a terme of years but the Count shall be speciall if a Lessee for yeares or life grants Rent out of the Land he had for yeares and afterwards commits Waste if the Lessor recover the place wasted the Land shall be charged If a Lessee for a hundred yeares grants part of his terme to another and be commits Waste the Action shall be brought against the first Lessee If Tenant for life commits waste and afterwards grants his estate to another waste shall be brought against him in the Tenet and after Judgement a Scire facias shall issue to the Grantee to shew cause wherefore the Plaintiff shall not have Execution of the place wasted and the like if Lessee for yeares commit waste and grants over his Estate Waste shall be brought against him in the Tenet And if a Lease be made for life upon condition that if the Lessee shall do such an Act his Estate shall cease and he doth commit such an Act the Writ shall be brought against the Lessee in the Tenet
of the said Bishop procured the said Grantees to surrender their severall grants accordingly the Church being then full And also after when the Church became void he procured the said Bishop to present him according to the first contract and then the said Penn made a lease to him of the Tenths and after sued others of his neighbours in the spirituall Court for tithes who pleaded the said Symoniacall contract and here Nicholls Serjeant suggested that the Judges Ecclesiasticall would not allow of this Plea there but the Court would not give credit to this suggestion but said that if the Ecclesiasticall Court make exposition of the Statute of 31 H. 8. Against the intent of it that then they would grant a Prohibition or if they should in verity deny to allow of this Plea and for that advised him that his Clyent might offer this Plea another time to them and if they denyed to grant that they would grant a Prohibition Hurrey against Boyer IN Prohibition awarded in the spirituall Court for stay of a Suit there for tithes of Lands which were the possessions of the Hospital of S. Johns of Jerusalem upon suggestion that the Prior of the said dissolved house of S. Johns had this priviledge from Rome which was by diverse Councells and Canons that is that the Lands of their Predecessors which by their own hands and costs they did till they were tied to pay no tithes and then by the Statute of 31 H. 8. chap. 18. Of dissolutions which was pleaded but agreed that this Hospitall was not dissolved by this Act but by a speciall act made 32. H. 8. chapter 24. By which their Corporation and Order was dissolved and their possessions given to the King with all the Priviledges and Immunities belonging to that and the King granted that to the Plaintiff in the prohibition and if he should hold them discharged of payment of Tithes was the question it was urged by Harris Serjeant that this Immunity was annexed to the corporation of the Prior and his Brethren of the said Hospitall and that that was determined by the dissolution of the said Hospitall and doth not come to the King and he saith that so it hath been adjudged in the Kings Bench against the Booke of 10. Eliz. Dyer 277. 60. 2. Coke the Bishop of Winchesters Case 14. B. And the Arch-Bishop of Canterburies Case 47. B. And 18. Eliz. Dyer 349. 16. And he said that it was not given to the King by the Statute of 31 H. 8. of dissolutions for that was given by act of parliament and this was not intended by the Statute of 31. H. 8. As it appears by the Arch-Bishop of Canterburies Case Nicholls Serjeant argued to the contrary And he cited a Cannon made by the Councell of Mag. and another made by Innocent the third In the year 1215. And diverse others and also the Statute of 2. Hen. 4. 4. And 7 Hen. 4. 6. And he said that the Pope had Authority amongst spirituall men and might grant to them freedoms of speciall things and he saith that if Land be discharged of payment of Tithes by prescription of not tithing and this Land came to the King yet this priviledge remaines and also he urged that these priviledges are given to the King by the Statute of 31 H. 8. Of dissolutions by which all Hospitalls as well dissolved lost surrendred granted or c. To the King as those hospitalls which should be dissolved lost c. And by this the possessions lands c. are given to the King in the same plite and case as they were in the hands of the hospitallers themselves and he affirmed the Booke of 10. Eliz. Dyer 277. 60. To be good Law and the Archbishops of Canterburies case 2. Coke 47. b. and the Bishop of Winchesters case 44. b. and 18. Eliz. Dyer 349. 16. and also the words of the Statute of 32. H. 8. 24. gives to the King not only the mannors houses c. but also all Liberties Franchises and Priviledges of what natures names or qualities soever they be appertaining or belonging to the said Religion or the Professors thereof by which he intends that this freedome to be discharged of tythes and so concludes that the Prohibition shall stand see the rest after Easter 9. Jacobi Forde versus pomroy UPon a Prohibition the case was this An unmaried woman being proprietor of a Parsonage tooke to a Husband a Parishoner within the Parish set forth and devided his tythes and those immeadiatly tooke backe and the Husband alone sued for the treble value according to the Statute of the 2. Ed. 6. And two points were moved First if that were a setting forth within the Statute and by the Court that it was not and so hath been adjudged in 43. and 45. of Eliz. and 1. Jacobi If the Husband may sue for the treble value without naming his Wife and to that the Court would be advised for though that the Husband may sue alone where a thing is personall for which he sueth as the bookes of 4. Ed. 4. 31. 7. Ed. 4. 6. 15. Ed. 4. 5. and 11. are yet where the Statute saith that the Proprietor shall have suit for the not setting forth c. The Husband is not intended Proprietor as the Statute intends but the Wife and for that the Wife ought to joyne see more Wagginer and Wood Pasche 8. Jacobi in the Kings bench WAgginer sued Wood in the Court of Requests for that that Wood had estopped his way and in the Bill of complaint there was no expresse of the place the County nor to what place the way did lead and for that it was demurred to the Bill there And notwithstanding they ordered the defendant Wood to answer and the Atturney came and moved the Court for a Prohibition and it was granted to him for they could not determine the right of a way Glover and Wendham HEndyn of Grayes Inne moved the Court for a Prohibition and the case was this A man dwelling in a Parish that is Dale hath land in his occupation in the Parish of Sale the Wardens of the Church of the Parish of Sale and other the Parishoners there make a Tax for the reparation of the Church for Church ornaments and for Sextons wages amounting to the sum of 23 l. And the Tax of the Church being deducted commeth but to 3 l. only And now the forreigner which dwells in Dale is sued in the Court Christian by the wardens of the Church of Sale for his part of the Tax and he praies Prohibition and Hendyn saith he well agreed the case of Jefferies 5. Coke that he should be charged if this Tax had been for the reparation of the Church only for this is in nature reall But when that is joyned with other things which are in nature personall as ornaments of the Church or Sextons wages with which as it seems he is not chargable then Prohibition lies for all Flemming
observed with the feare of God And another Canon That custome of not Tything or of the manner of Tything if they paid lesse then the tenth part see Panormitan upon that seek of the Case between Vesey and Weeks in the Exchequer upon the Statute of 27. H. 8. for the dissolution of small Monasteries Also the Lord Darcy in quo warranto was discharged of purveyance by Patent granted by the King Edward 6. of such priviledges which such a one had and by the same reason the King shall be discharged of Tythes by the Act of Parliament also he remembred the Book of 10. Eliz. Dyer 277. 60. to be resolved in the point and also 18. Eliz. Dyer the Parson of Pekerks case 399. 16. upon the Statute of 31. H. 8. and so concluded and prayed judgment for the Plaintiffe and that the Prohibition should stand and it was adjourned Trinity 9. Jacobi Priddle against Napper UPon a speciall verdict the cause was The Prior of Mountague was seised of an Advowson and of divers acres of Land and the 20. of H. 8. the King licensed him to appropriate that and 21. H. 8. the Bishop which was Ordinary assented and after that the Church became void that the Prior might hold it appropriate and 27. H. 8. the Incumbent dyed so that the Appropriation took effect and was united to the possession of the Rectory Appropriate and also of the Land out of which Tythes were due to the said Prior in respect of the said Rectory and then the Priory is dissolved and the Impropriation and the Lands also given to the King by the Statute of 31. H. 8. which granted the Impropriation to one and the Lands to another And if the Patentee of the Land shall hold it discharged of the payment of Tythes in respect of that unity was the question And Harris Serjeant for the Defendant in the Prohibition that the unity ought to be perpetuall and lawfull as it was adjudged between Knightley and Spencer 2 Coke 47. a. cyted in the Arch-Bishop of Canterburies case and for that unity by or by lease for years or for two or three years as in the case at the Barre shall not be sufficient to make discharge of the payment of Tithes and so it was adjudged Pasche 40. Eliz. Rot. 454. between Chyld and Knightley that is that the unity of the possession ought to be of time that the memory of man doth not run to the contrary And in the argument of this Case it was said by Popham cheif Justice that if no Tithes were paid after the Statute that then it shall be intended that no Tithes were paid before the Statute and so he concluded and prayed Consulation see 2 Coke 48. a. The Arch-bishop of Canterbury for the reason by which unity of possession is discharged of payment of Tithes that is for that that some houses of Religion were discharged by Buls of the Pope and many were founded before the Councell of Lateran and for that it shall be infinite and in a manner impossible to find by any searches the means by which they are discharged the unity is no discharge in respect of it selfe for the reasons aforesaid and none may know if Tithes were paid or not before the union And if Tithes be not paid in time of memory by a house of Religion and they lease of that for years and receive Tiths then the lease expiâ—es two yeares before the Dissolution of the same house the King shall not be discharged of the payment af Tithes by the Statute of 31. H. 8. by Coke and Walmesley against Warburton and Foster Dorwood against Brikinden UPon the Statute of 5 Ed. 3. a man libelled in the Spiritual Court for Wood cut and a Consultation was granted Yet the Defendant in the Court Christian might have a new Prohibition if it appeared the first Consultation was not duly granted So if a man libell for Tithes for divers years and Prohibition is granted for part of the years and after that a Consultation is awarded yet the Plaintiffe may have a new Prohibition for the residue of the time notwithstanding the Statute of 50 Ed. 3. and that it be upon one selfe same libel Admirall Court NOte that the Admirall cannot imprison for any offence but if the Court hath Jurisdiction of the Originall cause and sentence is there given this sentence may be executed upon the Land 19. H. 6. But no Ordinary may meddle out of his own Diocesse 8. H. 6. 3. 2. H. 4. The Parson of Salt-ashes Case That this Court tooke notice of Jurisdiction of all Ecclesiasticall Courts and Ordinaries for they write unto them for tryall of Bastardy and Matrimony And there are 3. Legates First a born Legate as the Arch-bishop of Canterbury and Yorke Remes and Pylazam Second a Latere as all Cardinalls The third a Lagate given as those which have their Authority by commission and Lynwood Provinc saith that the Arch-Bishop of Canterbury as Arch-Bishop cannot meddle out of his Diocesse of Canterbury and his Peculiars but as a Legate borne which is in respect of his Office he hath prerogative and if a man inhabit in one Diocesse and ought to pay tithes to another which inhabits in another Diocesse there the Ordinary ought to prefer the suit to the Metrapolitan but seek what Ordinary shall transfer it Trinity 9. Jacobi 1610. in the Common Bench. Jones against Boyer HEnry Jones Parson of Bishopton sued Bowen the Executor of Holland the last Incumbent in the Arches for Dilapidations upon which a Prohibition was prayed upon the statute of 23. H. 8. for that that it was sued out of his Diocesse which was Saint Davids but it appears that the Vicar generall of the same Ordinary hath made generall request to the Metropolitan to determine that without shewing any cause speciall and if the inferiour Ordinary may transmit any cause but only for the causes mentioned in the statute of 23. H. 8. And if the causes ought to be expressed in the Instrument was the question note that the generall words of the statute of 23 H. 8. chap. 9. Rastall Citation 2. are afterwards many particulars or in case that any Bishop or any inferiour Judge having under him Jurisdiction in his own right and title or by commission make request or instance to the Arch-Bishop Bishop or other inferiour Ordinary or Judge to take treat examine or determine the matter before him or his substitute And that to be done in case only where the Law civill or Canon doth affirm execution of such request or instance of Jurisdiction to be lawfull or tollerable and for the better discussing of this question the Judges had appointed to heare two Doctors of the Civill Law which at this day attended the Court the first Doctor Martin said that these generall words have reference to the Executor and not to the maker of the request and this request may be made for all causes but ought to be made to him which hath
elect him See the Statute of 25 H. 8. That a Canon against Common Law confounds the Roiall Prerogative of the King or Law of God is void and Custome of the Realme cannot be taken away but by act of Parliament See 21 Ed. 4. 44. the Abbot of Saint Albones hath a Charter of the King to be discharged of Collection of tenthes granted by Parliament or Convocation The Clergy grants tythes in Convocation there is a clause in the grant that no one of them who shal be chosen to be collector shal be discharged of collection by colour or force of any Letters Patents and after they return the Abbot of St. Albones Collector who pleads his Letters Patents in discharge of Collector and resolved by the Court that the clause in the grant of tenthes doth not take away the exemption of discharge by the Letters Patents granted And it was resolved that if the Parish clark misdemene himselfe in his office or in the Church he may be sentenced for that in the Ecclesiasticall court to Excommunication but not to Deprivation And after Prohibition was granted by all the court and held also that a Prohibition lyeth as well after sentence as before Trinity 8. Jacobi Common Bench. ON was cited to appear in the Prerogative Court of Canterbury which was out of the Diocesse of Canterbury and upon that he praied Prohibition upon the Statute of 32. H. 8. Which willeth that none shall be cited to appeare out of his Diocesse without assent of the Bishop and Prohibition was granted And yet it was said that in the time of H. 8 and Reigne of Mary that the Arch Bishops of Canterbury had used to cite any man dwelling out of his Diocesse and within any Diocesse within his Province to appeare before him in the Prerogative Court and this without the assent of the Ordinary of the Diocesse But it was resolved by the Court that this was by force of the power Legantine of the Arch-Bishop that as Lynwood saith ought to be expressed in the Prohibition for the Arch-Bishop of Canterbury York Pisa and Reymes were Legati nati and others but Legates a Latere Hillary 1610. 8. Jacobi in the Common Bench. Beareblock against Reade IN an Action of Debt brought by Beareblocke against Reade Administratrix to her Husband upon a Judgement given in this Court The case was this the Plaintiffe had Judgment against the Husband and after sued him to an Vtlagary and upon that he brought a Writ of Errous and removed the Record into the Kings Bench and reversed the Judgement for the Vtlagary But the first Judgment was affirmed and then the Husband acknowledged a Statute and dyed And the Wife took out Letters of Administration and then the Statute is extended against the Wife and all the goods which shee had of the Intestates taken in execution After which Beareblock in the Kings Bench sueth a Scirefacias upon the said Judgment against the said Administratrix to have execution and shee pleads upon that the said Statute in Barre and the extent of that and that more then that shee hath nothing to satisfie and this was adjudged a good plea. And then the Plaintiffe being not satisfied he hrought an action of debt upon the said Judgment in this Court and in Barr of that the Wife pleaded all this matter in Barr as aforesaid upon which the Plaintiffe demurred in Law and the Judges seemed to incline that this was no Barr for though that the Wife hath not any means to aide her selfe or to prevent the extent of the Statute yet it seemed to them that this should not prevent the execution upon the Judgement and that the Wife might have Audita quaerela against the Connusee of the Statute and so to make the extent void It was not argued at this day but the point only opened see 3. Eliz. Dyer 7. H. 6. See Pasche 9. Jacobi the Residue Petty against Evans IN an Ejectione firme brought by the Lessee of a Copy-holder it is sufficient that the count be generall without any mention of the License if the Defendant plead not guilty then the Plaintiff ought to shew the Lycense in Evidence But if the Defendant plead specially then the Plaintiff ought to plead the License certainly in his replication and the time and place when it was made and in this case the Plaintiff replied that the copy-holder by License first then had of the Lord did demise and did not shew what estate the Lord had nor the place nor time when it was made and all the Justices agreed that it is not good For the License is traversable for if a copy-holder without License of the Lord make a Lease for yeares The lessee which enters by calour of that is a Disseisor and a Disseisor cannot maintain an Ejectione Firme and the Defendant cannot plead that the Plaintiff by license did not demise for this is a pregnant negative also it ought to appeare what estate the Lord had for he cannot give license to make a lease of longer time in the Tenancy then he hath in the signiory And for that if he be Lessee for life of a Mannor and he licenses a copi-holder to make a Lease for 21. yeares of a copy-hold and then the Lessee for life dies the license is for that determined though that the copy-holder be of Inheritance for the Inheritance of the Lord is bound by that And for that the Plaintiff replies that the copy-holder by license of the Lord first therefore had made the Lease that is not good by Coke and Walmesley expresly and though that the Defendant confesse the Replication by Implication by pleading Yet this shall not ayd the Plaintiff for that it is insufficiently pleaded which note Hillary 8. Jacobi 1610. in the Common Bench. IN action upon the case upon an Assumpsit the Plaintiff counts that when he such a day at the speciall instance and request of the Defendant lent to the Defendant the same day ten pound And that the Defendant the same day in consideration thereof assumed and promised to the Plaintiff to pay the same summ of ten pound at an other day to come And it was moved in arrest of Judgement that the consideration was too generall and for that the action not maintainable and all the Justices but Foster seemed the consideration was good but Foster it seems was in some doubt of that but Judgement was entred for the Plaintiff according to the verdict And Coke cheife Justice said that such a like action was maintained against Kercher his Chaplain as Executor of his Father and it seems for good Law Legates Case ONe Legate was committed to Newgate Prison for Arrianisme for denying of the Trinity by the high Commissioners and it was moved on the behalfe of Legate to have a habeas Corpus and it was granted and it was said by Coke cheife Justice that the Statute of 5. H. 4. Chapter 10. Inhibits Justices of peace to commit any man to
Ed. 2. Counter Plea of voucher 111. 21. Ed. 4. 71. Then he supposed here was generall warranty which is executed and also another warranty which remaines notwithstanding any thing which appears to the Court for he hath not demanded any binding 10. Ed. 3. 15. a. b. Also the warranty in the Fine is the warranty of all the Conusees and the warranty upon which the voucher is is only the warranty of Sir Robert Osborne which cannot be intended the same warranty which is contained in the Fine which is by two as it is resolved in 10. Ed. 3. 52. But admitting that it agrees in all that is the voucher and the warranty in the Fine that is in number of persons and quantity of land and all other circumstances yet it shall be no Barr for the Common Recovery is only as further assurance for it is for forfeiture if it be suffered by Tenant for life as it is resolved in Pelhams Case 1. Coke Also he supposed that notwithstanding that the Fine was levied hanging the Writ of entry and â—o Sir Henry Rowles made Tenant yet this is good being by purchase but not if it be by discent or by recovery upon elder Title And he supposed that if the recovery and the warranty might be together by any possible meanes they shall not be distroied insomuch that this is the common case of assurance and for that shall be taken as in Pattenhams Case 4. and 5. Phil. and Mary Dyer 157. and 2. Coke Cromwells Case 77. b. where a man makes a Feoffment upon condition rendring Rent and after suffers common recovery and yet this notwithstanding the condition and Rent remaines And so it seemes that in this case the warranty remaines notwithstanding the Recovery and so he concluded and praied Judgement for the Plaintiff Nicholls Serjeant for the Defendant and he seemed that the warranty is destroied first insomuch that the Recovery was to other uses and the Fine was when proved that there was no further assurance also he supposed that insomuch that it doth not appeare to what use the Recovery was for the Mannor of Kelmersh that for that it shall be intended to the use of Sir Robert Osborne himselfe and then for that also the warranty is distroied insomuch that part of the Land is re-assured to Sir Robert Osborne as in 40. Ed. 3. 13. The Father enfeoffes the Son with warranty which re-enfeoffes the Father this destroies the warranty So if they make partition by their owne Act as it is agreed in the 34. Ed. 3. Also he supposed that the Tenancy in Sir Henry Rowles is distroied before that the Fine was Levied insomuch that this was Executed by voucher and so he did not purchase hanging the Writ for this is also conveied from him by the Recovery in the value before that the Fine is levied and it is all one with the case where a man recovers upon good Title hanging a Writ and he agreed that the recovery had been for further assurance that then it shall be as it hath been objected by the other party and the warranty had remained but this he supposeth it was not insomuch it was to other uses then the Fine was and he intended that if the Estate to which the warranty is annexed be distroied the warranty also shall be distroied 19. H. 6. 59. 21. H. 6. 45. 22. H. 6. 22. and 27. So if the Estate be avoided the warranty is distroied if it be by the Act of the parties named also he supposed that the warranty is executed and that it shall be intended the same tye upon which the warranty is created as it is 10. Ed. 3. 51. Mauxells case Com if he demand no tye but enter generally into the warranty there shall be execution of all warranties and shall bind all his rights for otherwise all the Estates tayl cannot be bound by that But where the Lieu is demanded as where there are three severall Estates tayl limited to one man and upon voucher he enters generally into the warranty all the tayles shall be bound but if he demand the Lieu's which he hath to bind him to warranty there shall be a Barr of that only upon which the voucher is and the remedy is that if he be impleaded by the party that hath made the warranty he shall be rebutted by his owne warranty But if he be Impleaded by a stranger he shall vouche him that warranted that and if warranty be once executed by voucher and Recovery in value though that the Land recoverd in value be a defeasable Title yet the party shall not voucheat another time by the same warranty as it is 5. Ed. 3. Fitz. voucher 249. and 4. Ed. 3. 36. And for that in this case insomuch that the warranty was once executed he shall not vouche againe upon the same warranty Also it is not alledged in the Count that the Plaintiff was Impleaded by Writ of Entry in the Post but in the Per in which he might have vouched and so shall not have this Action where he might have vouched And also he supposed that Sir Henry Rowles shall not have benefit by this warranty without praying aid of those in remainder insomuch that he is but Tenant for life but he supposed that it was no Remainder but reversion for otherwise they are but as an Estate and he may have advantage of the warranty as it seemes without aid praying But not where there is Tenant for life with the reversion expectant And so he concluded and praied Judgement for the Defendant And he cited one Barons Case where Tenant in tayl levies a Fine with warranty and after suffers Recovery And it was agreed by all the Justices that yet the Recovery shall be a Barr to the Remainder notwithstanding that the Estate tayl be altogether barred and extinct by the Fine but Coke cheife Justice said that Wrayâ— cheife Justice would not suffer that to be argued insomuch that it was of so great consequence being the common course of assurances But it seemes that the Recovery shall not be a Barâ— for the Remainders for the causes aforesaid and he said that he was of councell in Bartons Case and thought this Objection to be unanswerable and of this opinion continued Pasche 1612. 10. Jacobi in the Common Bench. Richard Lampitt against Margeret Starkey EJECTIONE Firme upon speciall verdict the case was this Lessee for five hundred yeares devised that to his Father for life the remainder and residue of that after the death of his Father to his Sister the Devisor dies the Sister which hath a remainder takes a Husband the Husband at the request of the Father grants release and surrenders all his Right Tearme and Intrest to the Father which had the Possession And the question was if by that the remainder of the Tearme should be extinct or not And it was argued by Dodridge for the Plaintiff that the remainder remaines that notwithstanding insomuch that this is
Lessee for years or life surrender before the performance of the condition the Fee doth never increase as it is 14. H. 8. 20. and the Lord Chandois Case 6 Coke But the Estate tayl remaines after the condition performed and then hath the Fee dependant upon the Estate tayl and that there is a necessity that there shall be an office as it was in Nicholls Case in the Com because of the right and that after the condition performed then the Fee shall vest Ab Initio and this corporates together partly by the Letters Patents and partly by the performance of the condition and so it is in Butler and Bakers case that it is not a Grant in futuro but one immediate Grant to take effect In futuro see 2. H. 7. for the execution of Chantrey and Grendons Case in the Com. and 2. H. 7. If the King grant Land to J. S. for life the remainder to the right Heires of J. R. which is in life the remainder is good as well as in case of a common person and so he seemed that Judgement shall be given for the Plaintiff Walmesley Justice agreed that it shall be remainder and not reversion as if Lands begin to the Husband and the Wife and to the Heires of the Body of the Husband the Husband dies this is a remainder in the Heires Males and not a reversion for it cannot grow higher and it was not in the King as one distinct Estate before the Grant and Formedon in remainder lieth for it and though it be misrecited yet it shall be good and ayded by the Statute of Misrecitalls and grant of a thousand is suffered to convey the reversion of a thousand by the common Law and if the recitall were that it was a reversion depending upon the Estate tayl it was good without question and the King may grant five hundred reversions if he will and that the last Damus is ex certa scientia et mêre motu nostris Damus et concedimus that if the Patentee pay twenty shillings Tunc sciatis quod nos de ampliori gracia ea certa scientia et mero motu nostris concedimus c. and that the word Volumus will amount to a Covenant or a Release as 32. H. 6. The King by his Patent by these words Nolent that he shall be impleaded and this amounts to a release and so words which intends expresly words of Covenant may be pleaded as a Grant in case of the King as it is 25 Ed. 4 So is a common person license another to occupy his Land this amounts to a Lease of Land if the time be expressed so if a man grants to another that he shall have and injoy his Land to him and his Heires that by that Fee passeth And if the King grant reversion to begin at Michaelmasse the Grant is void for that it is to begin totally at Michaelmasse and doth not looke back to any precedent thing But if it relate to any precedent Act then that shall be good by relation and shall passe ab Initio see Com. Walsinghams Case 553. b. that in such case the performance of the condition divests the Estate out of the King and there is no difference in this case betwixt the King and a common person and agreed in the case of Littleton Where a man makes a Lease for yeares upon condition to have Fee that the Fee shall not passe till the condition be performed and with this agrees 2. R. 2. But if a man makes a Charter of Feoffment upon condition that if the Feoffee injoy the Land peaceably for fifteen years that the Feoffment shall be void In this case the Fee-simple determineth by the performance of the Condition and in this case the Fee passeth ab Initio by the Livery as in 10. Assise 18. Assise 1. 44. Assise 49 Assise And he agreed that the words Habeat et Teneat the Reversion passes and this is good Fee-simple and this refers to the first Damus et Concedimus and so concluded that he seemed that Judgement shall be given for the Plaintiff Coke cheife Justice accordingly and he conceived that there are two questions upon the substance of the Grant And to the first objection that hath been made that is that reversion was granted and increase of an Estate cannot be of a reversion and in all these cases which have been put they are of an Estate in possession and so is the case of Littleton also and he agreed that it shall not be good if it be not good ab Initio that though there be not other words then Reversionem predictam That it shall be good And to the second point upon the former He conceived that the Grant is but a Grant and that the condition is but precedent Limitation when the Estate of Fee-simple shall begin and so it is said by Montague in Colthurst and Brinskins Case in the Com. And further he saith that there are four things necessary for increasing an Estate First that it ought to be an Estate upon which the increasing Estate may increase Secondly the particular Estate ought to continue for otherwise it is grant of a reversion in Futuro Thirdly That the Estate which is to increase ought to vest by the performance of the Condition for if there be disturbance that it cannot then vest then it can never vest Foutthly that both the Estates as well the particular Estate as the Estate which is to increase ought to have their beginning by one self same Deed or by diverse Deeds delivered at one self same time And to the first and to prove that he cyted 44 Ed. 3. Attaint 22. Lessee for yeares upon condition to have Fee granes his Estate the Fee doth not increase upon the performance of the condition for then it shall passe as a Reversion and so the particular Tenant surrenders his Estate as it is sayd 14. H. 8. For if the Privity be destroyed the Fee will never increase but there is no such â—ycity but that if the substance of the Estate remains though it doth not remain in such form as it was at the first Reversion the Estate may well increase as if Lands be given to the Husband and wife and to the Heirs of the Husband upon the Body of the Wife to be begotten the Wife dies and the Husband is Tenant after possibility of Issue extinct yet he may well perform the condition for the Estate remaines in substance and with this agrees 20 H. 6. Ayd and so it is if a Lease be made to two for years upon condition to have fee one dies the other may perform the Condition and shall have Fee-simple as it is agreed by 12. Assise 5. the reason is that the privity remaines and the Estate also in substance Thirdly As to that also it seems that it ought to vest upon the performance of the condition which is the time limited for the beginning of the Estate and if it do not vest
all their Study is practise and that if they have no practise of themselves then they attend upon others which practise and apply themselves to know the nature of Simples And to third objection that in London ought to be choyce men for the Statute appoints that they shall be examined by the Bishop and Deane and four others at least and for that there is a more strict course for them then in other places to that it is agreed But he said that in the University there is a more strict course then this for here he ought to be publickly approved by many after that he hath been examined and answered in the Schooles to diverse questions and allowed by the Congregation house And 35. H. 6. 55. Doctor is no addition but a degree quia gradatim et progressâ—one Doctrine provenit to that and that Doctor is teacher and that he was first taught by others as Scholers afterwards he is Master and Doctor dicetur a docendo quia docere permittitur and they are called Masters of their faculty and that the Originall of Doctor came of the Sinagogue of Jewes where there were Doctors of Law and it appeares that they had their ceremonies in time of H. 1. And when a man brings with him the Ensigne of Doctrine there is no reason that he should be examined againe for then if they will not allow of him he shall not be allowed though he be a learned and grave man and it was not the intent of the King to make a Monopoly of this practise And to the second point that he propounded it seemes that the Justification is not good which is Quia non comperuit upon Summons he was amerced and ordered that he shall be arrested and being arrested being examined if he would submit himself to the Colledge he answered that he was a Doctor and had practised and would practise within the sayd City as he conceived he might lawfully do and for that shewing of this case he was committed to prison and he conceived two things upon the Charter First That it doth not inhibit a Doctor to practise but punisheth him for ill using exercising and making and may imprison the Emperick and Imposter and so prayed Judgment for the Plaintiff and after in Hillary Tearm in the same year this case was argued by all the Justices of the Common Bench and at two severall dayes and the first day it was argued by Foster Daniell and Warburton Justices at whose Arguments I was not present but Foster argued against the Plaintiff and Daniell and Warburton with him and that the Action of false imprisonment was well maintainable And the second day the same case was argued again by Walmesley Justice and Coke cheife Justice and Walmesley argued as followeth that is that the Statute of 3. H. 8. was in the negative that no person within the City of London or seven Miles of that take upon him to exercise or occupy as Physitian or Chirurgion c. And he doth not know in any case where the words of the Statute are negative that they admit any Interpretation against that but one only and that is the Statute of Marlebridge chapter 4. Which provides that no Lord shall distrain in one County and the beasts distrayned drive into another County in which case though that the words are uegative yet if the Lord distrain in one County he may drive the Beasts to his Mannor in another County of which the Lands in which the distresse was taken were held but it is equity and reason in this case that the Statute should admit such exception for it is not of malice but for that that the Beasts may remain within his Fee but in the principall case there is not the like reason nor Equity And also the King H. 8. in his Letters Patents recites as followeth that is Cum Regij officij nostri munus arbitremur ditionis nostri hominum felicitati omni ratione consulere id autem vel imprimis fore si Improborum conatibus tempestive occurremus apprime necessarium duximus improborum quoque hominum qui medicinant magis avaritiae sue causa quam ullius bonae conscientiâ— fiducia profitebantur c. By which it appears that it is the Office of a King to survey his Subjects and he is as a Phisitian to cure their Maladies and to remove Leprosies amongst them and also to remove all fumes and smells which may offend or be prejudiciall to their health as it appears by the severall Writs in these severall cases provided and so if a man be not right in his Wits the King is to have the Protection and Government of him least he being infirme wast or consume his Lands or Goods and it is not sufficient for him that his Subjects live but that they should live happyly and discharges not his Office if his Subjects live a life but if they live and flourish and he hath care as well of their Bodyes as of their Lands and Goods for Health for the Body is as necessary as vertue to the minde and the King H. 8. to express his extraordinary care of his Subjects made the said Act in the third year of his Reigne which was the beginning of his Essence to that purpose and by the Common Law any Phisitian which was allowed by the University might practise and exercise the sayd faculty within any place within England without any dispensation examination or approbation of any but after the making of the sayd Act made in the third year of King H. 8. none may practise exercise or occupy as Phisitian or Surgion within theCity of London and seven miles of that if he be not first examined approved and admitted by the Bishop of London and the Dean of Paules for the time being calling to them foure Doctors of Phisick or Chirurgions c. And that no practiser may occupy or exercise the sayd faculty out of the sayd Precincts if he be not first examined approved and admitted by the Bishop of the Diocess or in his absence by his Vicar generall every of them calling unto him such expert persons in the said faculty as their discretions thinks convenient and the reason of this difference as he conceived was for that that in this City and the sayd Precincts the King and all his Councell and all the Judges and Sages of the Law and divers other men of quality and condition live and continue and also the place is more subject unto Infection and the Heir more pestiferous and for that there is more necessity that greater Care diligence and examination be made of those which practised here in London and the precincts aforesayd then of those which practise in other places of the Realm for in other places the People have better aire and use more exercise and are not so subject to Infection and for that there is no cause that such care should be used for them for they are not in such danger and
Proviso that if the sayd John disturbed the Executors of taking his Goods in his House that then the sayd use and uses limited to the sayd John Francis and his Heires shall cease and after declared that his intent was that in all other points his Will should be in his force and it was pleaded that Iohn did not suffer the sayd Executors to take the sayd Goods in the sayd House and if his Estate for years or in Tayl or Fee-simple shall cease was the question and it seemed to the Judges that the Condition shall not be Idle but shall have hiâ— operation as it appears by Hill and Granges case and the Lord Barkleyes Case in the Comment and the Lord Cheneyes Case Coke And it seems also that it shall not be referred to Estate in Fee simple for then it shall be void and it shall not be referred to a Tearm for it is limited to an Estate limited to the said Iohn and his Heires but it seemeth it shall be referred to an Estate tayl only as it is 2 and 3. P. and Mary Dyer 127. 55. 11 H. 7. 6. But the case was adjudged upon one point in the Pleading for it was not pleaded that Iohn Francis had notice of the Devise nor that he had made any actuall disturbance and peradventure he entered as Heir and had no notice of the Condition and when the Executors came to demand the Goods which were belonging to the Heir and annexed to the House and he sayd that it doth not appear to them to prove that an express notice was given in this case the Books of 43 Assise where a man was attaint and after was restored by Parliament and a Writ being directed to the Esceator the Escheator returns that he was disturbed and upon Scire facias the disturber pleads that he had no notice of the sayd act of restitution and for this he was excused of Disturbance And see 35. H. 6. Barr 162. Michaelmas 7. Jacobi 1609. In the Common Bench. Waggoner against Fish WAGGONER brought a Writ of Priviledge supposing that he had a suit depending here in the Common Bench which was directed to the Maior and Sheriffs of London and upon the return it appears that 4. Iacobi an Act of Common Councell was made that none should be retayler of any Goods within the same City upon a certain pain and that the Chamberlain of the said City for the time being may sue for the said penalty to the use of the sayd City at any of the Courts within the said City and that the Defendant hath retailed Candles and held a shop within the sayd City being a stranger and against the sayd Act and for the sayd penalty the Chamberlain hath brought an Action of Debt within the sayd City according to the sayd Act of Common Councell and upon the return it appeares that by their Custome the Maior and Aldermen with the Assent of the Commoners of the said City may make By-Laws for the Government of the sayd City and that the sayd custome and all other their Customes were confirmed by Act of Parliament and upon this it seems that though there be not remedy given for this penalty in another place then in London that yet if it be against Law he shall not be remanded and if a Corporation hath power to make By-Laws that shall be intended for the Government of their ancient Customes only and not to make new Lawes see 2 Ed. 3 Iohn De Brittens Case but it seems if this By-Law be for the Benefit of the Common-Wealth that it shall be good otherwise not and it was Adjourned see Hillary next insuing for then it was adjudged that he shall not be remanded see afterward Michaelmas 7. Iacobi It was adjudged NOte that this Tearme was adjourned untill the Moneth of Michaelmas by reason of the Plague and upon the adjournment this insued and was moved by Yelverton and Crook at the Bar and the Case was this Michaelmas 7. Iacobi 1609. In the Common Bench. POynes being an Infant levies a Fine and in Trinity Tearm last past brought his writ of Errour in the Kings Bench and assigned for Errour that at the time of the Fine levied was and yet is within age and prayed that he be inspected and insomuch that he had not his proofs there he was not inspected but Dies datus est usquâ— Octabis Michaelis Proximas at which time came the said Poynes the day which was wont to be the day of the Essoyn and prayed Justice Crooke which was there to adjourn the Tearm to inspect him and to take his proofs who did inspect him accordingly De bene esse and now before the Moneth of Michaelmas the Infant came of full age and if this inspection were well taken and what authority the Judge had upon that day to adjourn was the question And Flemming cheife Justice sayd that the day of Essoyn is a day in Tearm and that the Court was full though there was but one Judge and if the inspection had been the day of the Essoyn and before the fourth of the Post he had come of full age this shall be very good but the doubt rose as the case is if upon the day of Adjournment the Judge had power to do any thing but to adjourn the Tearm and for that it was appointed to be argued and for the Argument of that Quere of my Author Lane Michaelmas 7. Iacobi 1609 In the Common Bench. Rivet Plaintiff Downe Defendant IN an action upon the case upon an Assumpsit the case appears to be this Copy-holder makes a lease for a year according to the custome of the Mannor the Lord distrains the Farmer of the Copy-holder for his Rent and the Copy-holder having notice of that comes to the Lord and assumes that in consideration that the Lord should relinquish his Suit against his Farmer touching the same distress he would pay the Rent by such a day the Lord delivers the Distress and for default of payment at the day brings an Action upon the case and upon Non Assumpsit pleaded Verdict passed for the Plaintif And Barker Serjeant came and moved in arrest of Judgment First that a man cannot distrayn a Copy-holder but he ought to seise but Williams Justice and others to the contrary and by him if a man makes a Lease at will Rendring Rent he may distrain for this Rent 9 H. 7. 3. The case of Rescous Secondly He moved that when the Lord distraines that now the Tenant hath cause of Action that is Replevin and for that it cannot be sayd Sectam suam and so the consideration failes but all the Court against that and that this was a good consideration and by Flemming cheife Justice Distress is an Action in it self because this is the cause of a Replevin and when the Tenant brings his Replevin and the Lord avowes now is the Lord an Actor and so it is secta sua and by him secta is not
47 Edw. 3. 17 Edw. 4. and 21 H. 7. that have been remembred to the contrary is only that it is reason that the Plaintiff should have the same process which was at the Common Law and there was not any such processe as Capias in debt at the Common Law and 21 H. 7. may be understood that the Elegit was not returned and so no record of that And 50 Edw. 3. a man may recover in Debt and pray Elegit and after brings Debt upon the Record but it doth not lye And he agreed to the Book of 23 H. 6. For there the Defendant was bound in an Obligation to make satisfaction of Debt and hee dyed in Prison and this cannot be satisfaction according to the Condition And in the Case of Fitz. Nat. Brev. the same doubt of that and this was the more strong case then the case at the Barr and if he doubted of that is the cause that he doubts also And cyted Williams and Cuttis case Rot. 88. in the point where the reason of the Judgment was for that that the Plaintiff had his plain and full satisfaction and saith that it was apparent difference between that and Blunfields case for there was 2 Defendants and here if one dyes there shall be no satisfaction and so these reconciled And so if a man be taken upon a Statute Merchant and dyes in execution that shall not be satisfaction for this is speciall processe given by statutes And 14 H. 7. 1. If a man being in Execution escape he shall not be taken againe and in the 14 H. 7. in debt upon an Obligation Capias profine was awarded and the Defendant taken by that And the Plaintiff prayed that he might be in Execution for his debt also and could not for that he had sued Fierifacias and it doth not appear if the Sheriff have that executed or not And so he concluded that the Judgment should not be revived by the Scire facias against the Executors and that Judgment shall be given for the Defendants in the Scire facias Walmsley Justice accordingly He specially observed the forme of the Writ which suggests quod executio adhuc restat facienda c. And to that the Defendants in the Scire facias plead that Capiás was awarded at the suit of the Plaintiff and upon that the Defendant was taken in execution and there dyed by which it appears that the words and suggestion of the Writ was answered directly and upon that the strongly relyed and then said that there were 3 ways to have Execution that is by Fieri facias Capias and Elegit And there is a speciall order to be observed in the suing of that for a man may have Fieri ficias and if the Defendant have not goods may have Elegit or Capias But if he make his Flection to have Capias he cannot have Fieri facias nor Elegit or if he sue Elegit he cannot have a Fieri facias nor Capias In 33 H. 6. and 44 Edw. 3. which have been cyted the Plaintiff sues Elegit and after that would have sued Capias supposing that he had not accepted the Elegit but of the other part it was said that the Sheriff had made Execution of it the which he could not contradict it And if the Plaintiff had Fieri facias and goods delivered to him in Execution and the Writ returned he shall not have a second Execution and so if Elegit executed and returned 14 H. 7. 15 H. 7. and said that Executions are tickle things for if the party escape he delivers himselfe out of Execution and the Plaintiff shall not have other Execution against him for that he hath had one Execution 2 Edw. 4. And so if a man sues a Writ of Priviledg out of Parliament and by that is delivered out of Execution he shall not be taken again And so if a man be delivered upon a Writ of Error for when the Party hath made his Election to take processe against the body it was his folly that he made such Election for though that death be the act of God yet for that that statutum est omnibus semel mori and for that God hath done no wrong for he hath but performed his Eternall Decree and for that it is not the act of God only but the folly of the party to make such Election and the Book of 47 Edw. 3. by Percy is but his opinion and more other Books are against that and 〈◊〉 H. 6. Danby and Prisot are against Lacon and though that the death of the Party in Execution is no satisfaction in rei veritate yet in Law it is satisfaction for that that the party hath no other remedy the Writ in the Register is certiorari ad faciendum in omnia singula que secundum legem consuetudinem fieri c. And there is not any Law nor Custome to warrant any such Course and here is not any other proceedings upon it But if he may have a Writ of Scire facias ostensurus quare satisfactionem habere non debet then it may be that the Defendant's ought to give another answer but for that that there is not any such Writ it seems that Judgment shall be given for the Defendants Coke chief Justice seemed the contrary and he agreed with Foster and he said that it is vexata et spinosa questio for the Books vary and great arguments have been made of both parts There are three things considerable 1. Reasons 2. Authorities 3. Answers of Objections And for the Reasons First he considered in whom the default is for which the Plaintiff shall lose his Debt 2. That the Debt remains after the body is taken in Execution 3. If the body taken in Execution be satisfaction 4. If the dying in Execution be a discharge 5. The Mischiefs if so they shall be And to the Objections First Escape which is the wrong and act of the Party it is no satisfaction nor discharge and here is the act of God and election of the party 2. Execution by Elegit If Lands be extended upon that this is no satisfaction And so if he be delivered by a Writ of Error and so in this case And for the first the fault was in Jackeson for he did not keep his day in the Condition and upon this was sued then he pleaded a false plea and upon that Judgement was given against him in all which actions the default was in the Defendant and no default in the Plaintiff for he took the Body which is the visible execution not in satisfaction but to satisfie and the Defendants have not pleaded fully administred but confesse that they have Assets and there is more reason that the Plaintiff shall be satisfied then the Executors keep the goods to their own use for it is Summa Injustitia nocentem habere totum lucrum innocentem totum damnum Second reason was that it is no satisfaction for the Defendant to dye
against peter THis Case was argued this Tearme by Harris youngest Serjeant for the Defendants and by Haughton for the Plaintiffs And Serjeant Harris conceived that Sir Francis Barrington was within the Intent of the Act of 22. Ed. 4. chap. 17. For he hath grant of Trees of Inheritance and this was all the profit which rise upon the Soyl and for that it shall be intended of the Soyl it selfe And to prove that he cyted Parromor and Yardlyes Case in the Com. 542. and 543. 2. H. 8. 159. Crooke 11. Eliz. Dyer 285. Where it is agreed by three Justices that the Patentee or Grantee of Herbage in a Forrest shall have Trespasse against any which consumes and distroies the Grasse but not the Trees nor of the fruit of that and the Trespasse of that shall be Quare clausum fregit as well as iâ— it were of Land And may inclose the Forrest by such Grant See 17. Ed. 4. 6. a. by Littleton that Vestura terrae doth not pass without Livery Also admitting that he is not owner of the Ground within the Statute yet it seemes by the Statutes that they are It shall be lawfull for the same Subjects Owners c. And to such other persons to whom such VVood shall happen to be sold Immediatly after the VVood so cut to fence and inclose the same Ground with sufficient Hedges able to keep out c. Upon which words he inferrd that S. Francis Barrington is such a Person to whom the VVood is sold and for that may inclose And also he conceived that the Statute is generall and concernes all persons in generall and also all Forrests and Chases whatsoever And for that it is not like to the Cases put in Hollands Case 4. Coke upon the Statute of 13. Eliz. VVhich concernes all Ecclesiasticall persons in generall that this is a generall Act and yet concernes but one Genus in particuler But the Statute of 1. Eliz. Is otherwise which concernes the Bishop which is but a species of this Genus as it is resolved in Elmers Case 5. of Coke And also he conceived that it shall be releeved by the Statute of 35. H. 8. And so prayed Judgement for the Defendant And Haughton conceived that the words of the Statute intend such a person to whom VVood is sold for one turne only And not he which hath Inheritance of Wood that there is no word in the statute to exclude Commoner and such a Vendee is not without remedy for he is within the statute of 35. H. 8. If he pursue his remedy according to the statute and so prayed Judgement for the Plaintiff And at another day Foster Justice argued that the Plaintiff in the Replegiare shall recover and said that the cause consists of three parts First the Arbitrement Secondly the assurance Thirdly the private Act of Parliament of 27. H. 8. And to those the Arbitrement and the assurance shall tye only those which are parties to it and no others and the Commoner is not party to that nor shall not be bound and the private Act confirmes the assurance saving the Right of all strangers by which the Commoner is exempted and also the statute is made only as confirmation of the Grant and for that it shall not extend to any other thing nor to other parties but those only which are parties to the Grant as if the Queen had made a voydable Patent and after had made a Lease for yeares and after by the statute of 18. Eliz. All Letters Patents made within such a time were confirmed this makes the Letters Patents good against the Queen but against the Lessee And also all the Covenants in the Grant extend only to the Lord Rich and his Heires and these which claim under him And for that it shall not extend to the Commoner and also the private Act saves the Right of all strangers by which the Right of the Commoner was saved And he conceived that the Commoner shal not be excluded by the statute of 22. Ed. 4. chap. 7. which recites that if any Subjects have any Woods growing in his own Ground within any Forrest Chase c. Shall cut the same VVood by lycense of the King or his Heires in Forrest Chases c. Or without lycense in the Forrest Chase c. of any other person or make any Sale of the same VVoods It shall be lawfull to the same Owners of the same Ground whereupon the VVood so cut did grow and to other such persons to whom the said Wood shall happen to be sold Immediatly c. to cut and inclose the same Ground with sufficient hedges able to hold out all manner of Cattell and Beasts and to continue the same by the space of seven yeares without suing of any other Lycense of him or of his Heires or of any other persons or of any their Officers of the same Forrest Chases c. By which words it appeares that the statute doth not extend to any Wood of the King but only to the Wood of the subject lying in Forrest of the King or of other person owner of the Forrest or Chase And if it be in the Kings case and he hath lycense from the King to cut the Wood then may he cut it without other lycense according to the perclose of the Act And the statute doth not give lycense to Inclose without the assent of the Commoner but without other lycense of other Officers of the Forrest And by this Statute the Owner of the Ground may first cut the Wood and then Inclose But by the Statute of 35. H. 8. Otherwise it is for by this he may first inclose and then cut within four Moneths and that Sir Francis Barrington hath no interest in the Soyle and that this Statute of 22. Ed. 4. is a private Statute and ought to be pleaded for it concernes only forrests and Chases and it is no other then if it had been of al Woods in Parks and resembled that to the statute of 1. Eliza. of the Bishop which concerns only the Bishop and it is resolved in Elmers case to be private and the same Judges shal not take notice of that without pleading and it is not like the statute of 13 Eliz. which concerns al manner of spiritual persons in general and also that this statute is repealed by the statute of 35. H. 8. which is a negative Law and Leges posteriores priores contrarius abrogant and it is agreed in Porters case 1. Coke and so he concluded that Judgment should be given for the Plaintiff Warburton Justice to the contrary and yet he agreed that neither the Arbitrement nor the conveyance nor the private act excludes the Commoners for these reasons which have been urged by Foster but he relyed only upon the statute of 22 Ed. 4. and to that he sayd that the statute gives power to the owner of Ground to inclose and it should be frivilous for him to inclose if the
part this shall not extend to other persons Commoners and it is like to the case in 9 Eliz. Dyer 257. 13. A man makes a Lease for years and covenants that the Lessee shal injoy the Tearm without eviction of the Lessor or any claiming under him if he be evicted by a stranger this shal be no breaking of the Covenant for a stranger is no party to the Deed nor claims under the Lessor and for this his Entry shal not give Action to the Lessee and so is the Case in 21 H. 7. between the Prior of Castleton and the Dean of Saint Stephens which was adjudged the 18 of H. 7. Pasch Rot. 416. Though that no Judgment be reported where it appears that the King Ed. 3. seised al the Lands of Priors aliens in time of War for that that they carried the Treasure of the King out of the Realme to the Kings Enemies and so it was made by H. 4. also during the time of his Reign and then in the second year of the Reign of King H. 5. by a statute made between the King and the sayd Priors aliens al the Possessions of the sayd Priors were resumed into the hands of the sayd King and adjudged in 21. H. 7. 1. before that this shal not extend to the Prior of Castleton which had Annuities issuing out of the Possessions of the sayd Priors for the said Prior of Castleton was not party to the sayd act of Parliament and for that he shal not be prejudiced by that and so it was adjudged 25. and 26. Eliz. In the Court of VVards in the case of one Boswell where the King made a Lease for years which was voydable and after by another Patent granted the Inheritance and then came the statute of 18. Eliz. to confirm al Patents made by the sayd Queen within her time and adjudged that the sayd Act shal not make the sayd patent voyd to the Patentee which is a stranger to the act of the Parliament but only against the Queen her Heirs and successors for by the statute it is made only against one person only and shal not be good against another though there be no saving of such person in the sayd Act. And also he conceived that the statute of 22 Ed. 4. Doth not extend to any woods in forrest in which another hath Common for it doth not extend only to such woods which a common person hath in the Kings forrest or common person and that it may be inclosed for the space of three years after the cutting of the wood in this before the making of the sayd statute and this was no wood in which an Estranger had Common as it appears by the Preamble of the sayd statute and then after in the sayd statute it is sayd such woods may be inclosed And also he conceived where the statute sayth that they may inclose the same Grounds with such sufficient hedges able to keep out all manner of Beasts and Cattell out of the same Grounds but this refers to the quality of the hedge for before it ought to be a small Ditch and by this statute it ought to be with such hedg which shall be able c. And it shall not be referred to the manner of the Cattell But for the difference between Beasts of Forrest Beasts of Chase and Beasts of Warrain see the Register fol. 96. 43 Ed. 3. 13. 12. H. 8. 12. b. Hollinsheads Cronicle fol. 20. b. 32. And he conceived that Sir Francis Barrington is such a Vendee of Wood that is within the statute though that he be Vendee of Inheritance and hath a greater Estate then Vnica vice but for that that he conceived that it was not within the statute for other reasons before cyted he would not dispute it But he conceived if this had been the question of the Case that this was within the statute and also he conceived that this was a generall statute of which the Judges shall take notice without pleading of this And this reason was for that that the King was party to it and this which concernes the King being the head concernes all the Body and Common Wealth and so it was adjudged in the Chancery in the case of Serjeant Heale that the statute by which the Prince is created Prince of VVales was a general statute and for that see the Lord Barkleyes case in the Commentaries Also he conceived that the said statute of 22 of Ed. 4. was repealed by 35. H. 8. for this was in the Negative that none shal cut any wood but only in such manner as is prescribed by the said statute and for that shal be a repeale of the first and that by the first Branch of the sayd statute it appeares that if such giving of Wood in his own Soyl within any forrest he cut to his own use he cannot inclose and by that Branch Commoner is not excluded but by the second Branch it is provided that he may inclose the fourth part of his Wood and cut that in such manner as is appointed by the said statute and then he shal loose his own Common in the three other parts and so he concluded that Judgment ought to be given for the Plaintiff which is the Commoner and Judgment was entred accordingly Pasch 1610. 8. Jacobi in the Common Bench. Cesar against Bull. THomas Cesar Plaintiff in Assise against Emanuel Bull for the Office of Clock-Keeper to the Prince this he claims by grant of the King during his own Life with the fee of two shillings a day for the exercising of it and three pound yearly for Livery and the patent purports only the Grant of the Office and not words of creation of the Office as Constituimus officium c. And the Plaintiff could prove that it was an ancient Office and for that was non-suited in the Assise though that the Tenant had made default before Pasch 1610. 8. Jacobi In the Common Bench. Heyden against Smith and others THE Plaintiff counts in Trespasse against these Defendants and these Defendants justifie as Servants to Sir John Leventhorp who was seised of a free-hold of Land in which the Tree for which the action was brought was cut and so demands Judgment if action the Plaintiff replyes that the place where c. was parcel of a house and twenty Acres of Land which time out of mind c. have been demised and demisable by Copy of Court Roll which was parcel of the Mannor of A. of which the sayd Sir John Leventhorp was seised in his Demesne as of see and by Copy at a Court held such a day and year granted the said Messuage and twenty acres of Land whereof c. To the Plaintiff and his Heirs according to the custome of the said Mannor and prescribes that within the sayd mannor was a Custome that every Copy-holder may cut the boughs of all the Pollingers and Husbands growing upon his Copy-hold for fire to be burnt upon his
and void in it self this Clause doth not supply that For this is but notification to the Officers of the Queen that they should be attendant to the said Earl For though that the Intent of the Queen was that the Earl of hutland should execute this office by Deputy yet this intent shall not make the grant good for though that the Intent of a common person be apparent within the Deed yet this intent shall not make a voyd grant good 19 H. 6. 20 H. 6. 22 H. 6. 15. Grant to 2. Et heredibus with warranty to them and to their Heirs this clause of warranty though it were the intent of the parties apparent yet it was not sufficient to make the grant which was voyd good and so it is in 9 H. 6. 35. Abbot by his deed in the first person grants a Tenement and the Grantee in the third person renunciavit totum Commune quod habuit in uno tenemento and though that in this Grant the Intent of the parties is apparent yet this Intent shall not make the Grant which is void in it self to be good So if a man makes a Lease for life to the Husband and Wife and after grants the reversion of the Land that the Husband held for tearm of life that grant of the Reversion is void though that the Intent was apparent 13 Edw. 3. Grants 63. And so in Patent of the King grant to a man and heredebus masculis suis is void though that the Intent also is apparent that he should have an estate tayle 18 H. 8. b. Estates 84 But admitting that the Grant may be supplyed by the last words that is that in the last Grant the words are officia predicta and in the clause of Assistance yet these words may be supplyed for there are two other Grants in which there is expresse mention that the Patentee may exercise it by Deputy and so the words shall have full Interpretation Reddendo singula singulis And hee conceived that the Writ shall abate for that that it contains Vi armis And also the Declaration for the Jury have not found any disturbance at all And he agreed that in some cases Trespasse Vi armis well lyes as it is Fitzh Na. Bre. 92. 86. as where it is actuall taking 45 Ed. 3. 30. 44 Edw. 3. 20. where trespasse Vi armis is maintainable against a Miller for taking of Toll against the Custome for here is actuall taking and 8 R. 2. 7. Hosteler 7. In an action of Trespasse Vi armis against an Host for that that certain evill persons have taken the money of the Plaintiff and good But where there is not any actuall taking there the Writ ought not to containe Vi armis for for not scowring of a Ditch or stopping of Water as it is 43 Ed. 3. 17. But for casting of Dung into a River action of Trespasse Vi armis lyes 12 H. 4. But for burning of a house it doth not lye Vi armis 48 Ed. 3. 25. And so for turning of water-course 3 H. 4. 5. But in this case there is but disturbance with a word and commandement to hold a Court and no Court held nor no Proclamation made and so no disturbance at all 16 Edw. 4. 11. one hath the office of a Parkership and another man was bound that he should not disturbe And in debt upon the Obligation he pleaded that the Obligor hath threatned to disturb him and adjudged that this is no breaking of the Condition for there is no disturbance and in 2 Ed. 3. 25. and 40. Quo minus by Jeffery Scorlage where the King grants to the Mayor of Southampton the Customes of the same Towne and in quo minus for taking of them it was adjudged that words are no assault but there ought to be an act done But in this Case is nothing found but words and no act done but it is found that after the Defendants held the Courts But that doth not appear if it were against the will of the Earl of Rutland or not and so concludes that the action is not mayntainable And this case was argued again in Trinity Tearm next ensuing by the Justices Danyel being dead but I was not present at the argument of Foster and Warburton Justices but I heard the arguments of Walmsley Justice and Coke chiefe Justice And first Walmesley conceived that the Grant was good and that the Earl of Rutland by this Grant might exercise his Office by Deputy and this only in respect of the quality of his person for the Patentee is a Noble man which hath been employed as an Embassador of the King into other Realms and this Grant of this Office being amongst others varies from them for this wants the word exercendum which is contained in the others and also the office of a Steward is too base for an Earl to execute for the Steward is but as a Clark and not a Judge for he shall not be named in a Writ of false Judgment nor shall hold plea of any actions but under 40. s. for that it is not fit nor convenient that an Earl should exercise such a bas Office in Person For if Recovery here be pleaded it shall be tryed by the Country 1 Edw. 3. And the Steward shall not give Judgment but the Suitors and no tryall shal be by Verdict but by waging Law and the fee of the Stewardis but a 1 d. for every Plaint And for that it was not the Intent of the Queen that the Earl should exercise such a base office in person and her Intent is apparent for that that the word Exercise is not contained in the Patent And the Intent of the Queen is to be considered for the other Offices are fit to be executed by the Earl for the exercising of them is but a matter of pleasure as in hunting in the Forrests and Parks of the Queen and for that if these Grants have not contained words of deputation the Earl ought to exercise them in person according to Littleton And Noble men are not to be used as common people for they are not to be Impannelled of a Jury and Capias doth not lye against him by which he cannot be outlawed and for that he shall not be bound to sit in such a base Court as this base Court is And all this matter is wel declared and expounded in the last clause of the Patent where the words are Et ulterius volumus mandamus quod omnes c. Sint intendentes auxiliantes c. Where the words volumus in Patents of the King to amount to as much as concedimus or a Covenant which is all one with a Grant as in 32 H. 6. The King releases all his right in an Advowson Nolentes that the Patentee shall be grieved or disturbed and adjudged that this shall amount to a Grant and so the word Volumus in the principall case and also he conceived that the
22 Assise 24. 48 Ed. 3. 8. Register 47. And in case that one common person hath any Office which he cannot exercise by a Deputy yet if he be imployed in the Kings service as if he be made Ambassador out of the Realm or other such imployment he may during his absence make a Deputy and this shal not be forfeiture of his Office and an Earl in ancient time was not only a Councellour of the King but by his Degree was Prefectus sive prepositus commitatus as it appears by Cambden 106 107. Comes prefectus Satrapas which is Prepositus comitatus and was in place of the Sherif at this day and when that he was Sherif though that he had the custody of the county committed unto him which was a great trust yet then by the Common Law he might make an under Sherif which was but a Deputy the like Holinsheads Chronicle 463. Amongst the customes of the Exchequer he called the under Sheriff Senescallus which agreed with the Definition before for he held the place of Sherif himself and by the statute of Westminster 8. chapt 39. It is sayd that Vice comes est viccarius commitatus and if a Barony discend upon the Sheriff yet he shall continue Sheriff 13. Eliz Dyer and Britton 43. If a Rybaud strike a Baron or a Knight he shall loose his Land And Tenant by Knights service may execute it by Deputy 7. Ed. 3. Littleton And if it be so in the case of a Sheriff which hath the County committed to him that he may make a Deputy by the Common Law upon that he inferred that the Steward which hath but the Mannors of the King committed to him that he may make a Deputy And also he said that the words in the last clause that is Volentes precipentes that the Officers and the Subjects should be attendant expoundes and declares the intent of the Queen for the words are Omnibus premisses and the Grant of the Office of the Stewardship is one of the premisses and so he concluded upon these reasons that Judgement shall be given for the Plaintiff and that the Grant was good and the Action wel maintainable And oâ— this opinion were Warburton and Foster Justices And Judgement was given accordingly this Trinity Tearm 8. Jacobi And Coke cheife Justice remembred a Report made by him and Popham cheife Justice of England upon reference made to them that this Patent was good and that the Earle of Rutland might exercise this Office by Deputation and he conceived that there were other words in the Patent which were found by the Jury that the said Earle should have the said Office Cum omnibus Juribus Jurisdictionibus c. as full c. as any other Patent hath been had and withall the Appurtenances and it seemed that a former Patentee had power by expresse words to execute that by a Deputy and he conceived though these words Adeo plene c do not inlarge the Estate yet this inlargeth the Jurisdiction of the Officer as in 43. Ed. 3. 22. Grant is made by the King of a Mannor to which an advowson is appendant Adeo plene tam amplis modo forma c. And these words past the advowson without naming that and he said it was adjudged Hillary 40. Eliz. in Ameridithes case where the case was the Queen granted a Mannor Adeo plene intigre in tam amplis modo forma as the Countesse of Shrewshury or any other had the same Manno r and Queen Kathrin had the same Mannor and diverse liberties with it of great value during her life and adjudged that these liberties should passe also by this Patent by these words and so in the principall case if the former Patent had been found also by the Jury and so was the opinion of Popham and him and was certified accordingly FINIS A Table of the Second Part. ARch-Bishops Jurisdiction 1 2. 28. Admiralties Jurisdiction 10 11. 13 16 17. 26. 29. 31. 37. Arbitrement satisfaction what 31. 131. Assumpsit 40 41. 273. Arrianisme one committed for it 41. Assets 47. Almony 36. Apurtenant what shall be said 53 Action sur Case by a Commoner for words 55. 84. 100. 119. 122. Avowry the whole plea 62 63. 102 Agreement what 72 Account 76 Audita Querela 81. 83. 168 Atturnment good by one under age where and why 84 Award void 100 Age not allowed in Dower 118 Administration repealable 119 Accord with satisfaction good plea where where not 131 Attorney ought to finde Baile in an Originall not Bill 134 Action sur Assumpsit 137 Assuâ—psit against an Executor where maintainable 138 Assets in Formedon what 138 Attachment 144. 168 Assent to a Legatee 173 Ayd prayer 191 Attachment for contempt of the Court 216 Accessary null unlesse there is Principall 220 Assignment of an estate suspended 225 Assise of novel Disseisin 229 Abatment of brief per entry 231 232 Abatement de facto and by plea differ in what 235 Agreement and Arbitrement good pleas where 132 Agreement by word to keepe backe tythes 17 Admiralls Commission for measuring of Corne 29 Administration during minority of c. 83 Atturney brings Debt for Trees 99. Arbitrement 130. 131. Arrest of Judgment 167. Acts what to make an Executor de seu tort 184. Attachment of Priviledge for an Estate against the Marshall c. 266. Assise where it may lye sans view 268. Assise the Recognitors challenged ibid Ajournment of the Tearm 278. Annuity or Writ of Covenant where 273. Arbitrement submission and revocation 290. Approvement of Common 297. Account 308. Award submission 309. Arbitrement 310 Arbitrement who it binds 323. Assise del Office 328. B BIshop not displaceable 7. Baron alone cannot sue for not setting forth Tithes without the feme proprietory 9 Ballast granted to Trinity House a Monopoly 13. Baron and Feme joyn where 66. Baron Judgment against an Executor 83 Baron how chargeable pur sa feme 92. 93. 95. Bar in trespass 121. By-Laws whom they bind 180. To what extended 258. Baron and feme take by intirity where 226. Barwick whether part of England or Scotland 270. Bayle 293 Banckrupt actionable 299. C CHase an action not to be divided 56 Cui in vita of Copy-hold 79. Custome for pound breach 90. Common Recovery 16. Copiholder shall hold charged where 208. Confirmation to a copiholder destroys common 209 210. Consultation after it no Prohibition grantable upon the same Libell 247. Cape grand Petit 253 Cause of a commitment traversable 266. Count in trespass after the teste del Breife 273. Covenant to pay Rent 273 Continuance Ibidem Chellenge 275 Customes of London argued by the Justices 284. 285. 286. Certiorari 312. Capias ad satisfaciendum no satisfactory execution 312. 313. 314. 315. 316. Copy-hold at common Law 44. Creditor may sue both heireand Executor 97. Court of Equity not proper after Judgment 97. Copyhold intayled 121. Covenants direct and collaterall how they differ 136.