could be if it were not of Land holden in Socage and therefore that tenure is implyed Contrary When a man is to plead a Devise but where the Verdict doth not strongly imply a thing it shall not be good as in Scolasticas Case Plo. Com. 411. Exception was taken that the Jury did not find That the Devisor had not any Heir Male alive praeter the said John and Francis for if he had the wife of the Plaintiffe had no cause of Action And it was there holden by Harper That it was not a good Verdict for the incertainty so in our Case Cook contrary 1. The Grant is not good and the Rectory is no part of it nor can they passe by the word Portion 1. By the Etimology of the word for Portion is a thing in grosse by it selfe and cannot passe by that thing which is intended Nomen Collectivum as a Rectory is So of a Manor if a man grant totam illam portionem Manerii hee being seised of a Manor nothing passeth for portio is no more then partio as the Latinists say and then if a man grant all that part of his Manor or part of his Tithes in D. and he be seised of the whole Manor of D. or of the Rectory of D. nothing passeth Also the words after expound the Queens mind for the words precedent are coupled with a Cum after scil Cum omnibus aliis c. So as the first part shews the grant of Tithes and the later part shews what Tithes viz. those which were in the Occupation of John Corbet so as but part is granted and in the Kings Grant a part shall not be taken for the whole and so in no case if not by the Figure Synecdoche which cannot be in cases of Grants at the common Law Also the words are totam illam portionem c. and not totam meam portionem c. and the word illa or that ought to have a word What which is a word shewing in whose possession the portion was Also the Kings Letters Patents ought for the most part be taken according to the meaning of the King for the case was in the Exchequer That where the King granted all his Tenements in D. that nothing passed by that Grant but the Houses Otherwise it is in the case of a common person So 22. Ass where the King grants goods of Felons quorumcunque damnatorum it shall not extend to Treason nor to murder of the Kings Messenger So 8. H. 4. 2. If the Grant be of all the goods of those who pro aliqua transgressione sive delicto c. forisfacere deberent it shall not extend to those who are felo de se Also the Non obstante doth not help the matter For I take this difference When nothing passeth by the words precedent Ex vi termini there nothing is helped by the Non obstante But if any thing passe by the precedent words Ex vi termini there a Non obstante may make the thing good which otherwise should be void As if the King grant to J. S. the Manor of D. Non obstante that he is seised for the term of life thereof it is a void Grant But if the Grant were of the Manor of D. notwithstanding that I. S. hath it for life here the Non obstante makes the Grant good which otherwise should be the ignorance of the King to make a Grant of that of which he is excluded by the Non obstante because thereby he takes knowledg of the particular estate and so he is not deceived As to the matter moved against the Verdict I conceive that it makes against the other side for it was on his part to prove the Occupation and if there be no Occupation at the time of the Lease the Grant is void and he was to prove it being in the affirmative And then in re dubia majus inficiatio quà m affirmatio intelligenda and a May be may be intended in every case And if such construction should be in speciall Verdicts I dare affirm that by such May bees all speciall Verdicts shall be quashed But the Law is to give a favourable construction of them according to the meaning of the Jurours Snagg contrary and by him these words cum omnibus aliis c. are void in the Kings case and vouched the case of 29. E. 3. 9. before vouched Where the King had granted to the Earl of Salisbury the custody of the Lands of the Prior of Mountague being seised into the Kings hands as a Prior Alien and afterwards the Earl died his Heir within age whereby the said Lands and others and Advowsons came to the Kings hand by reason of minority and afterwards the King granted to the Son all the Lands and Advowsons which were Patris sui ac omnes terras ac omnes advocationes of the said Prior which the King had before given to the father of the said son And it was there holden That although that the Advowsons passed not to the Father yet by that grant they did passe and that these woads which he granted to his father were meerly void Clâ—nche Justice Nothing passeth by this word Portion for it is a thing in gross and a thing in gross cannot contain another thing and a word which signifies a thing in grosse cannot passe another thing As if a man grant all his Services in D. it is to be intended Services in grosse and if he have not any Services but those which are parcell of a Manor nothing shall passe by those words But I conceive That those Tithes which are parcell of the Rectory shall passe by these words Cum aliis c. For although that the words are in the tenure of John Corbet yet if they were not in his tenure the Non obstante will help it for it is Non obstante any misnaming of the Tenants or of the quantity or quality of the Tithes so as these words imply as much as if the Grant had been in the tenure of John Corbet or of any other in L. or elsewhere Gaudy Justice If the words Totam illam portionem were left out of the Book the other words Cum omnibus aliis shall passe nothing and those words Totam illam portionem are as nothing to passe a thing not in grosse and by consequence nothing shall passe by the other words And afterwards Judgement was given That nothing passed by the Letters Patents Hill 28 Eliz. in the Kings Bench. 43. CROPP's Case CRopp made a Lease for years reserving rent at Mich. upon Condition That if the rent be behind at Mich. and a Month after that he might enter The Lessee after Mich. and before the Month ended sent his servant to the house of Cropp to pay the money to Cropp the servant coming to Cropps house found him not for he was not at the House the Servant delivered the Rent to one Margery Briggs who was his Daughter in Law to deliver the
the case which implyed their opinions to be for the Universitie And 21. H. 7. was vouched That the Patronage was only matter of favour and was not a thing valuable And in this case Cook chief Justice said That Apertus haereticus melius est quam fictus Catholicus Mich. 11. Jacobi in the Common Pleas. 310 BOND and GREEN's Case AN Action of Debt was brought against an Administrator the Defendant shewed how that there were divers Judgments had against him in 〈◊〉 Aâ—d â—â—so that there was another Debt due by the Testator which was assigned over unto the Kings Majesty and so pleaded That he had fully Administred Barker Serjeant took Exception to the pleading because it was not therein shewed that the King did assent to the Assignment and also because it was not shewed that the Assignment was enrolled The Court said nothing to the Exceptions But whereas he Defendant as Administrator did alledge a Retayner in his own hands for a debt due to himselfe The opinion of the whole Court was that the same was good and that an Administrator might retayne to satisfie a debt due to himselfe But it was agreed by the Court That an Excecutor of his own wrong should not Retayne to satisfie his own debt See to this purpose C. 5. part Coulters Case Mich. 11. Jacobi in the Common Pleas. 311 STROWBRIDG and ARCHERS Case IN An Action of debt upon a Bond the Defendant was Outlawed And the Writ of Exigent was viz. Ita quod habeas corpus ejus hîc c. whereas it ought to be coram Justiciariis nostris apud Westminster And for that defect the utlagary was reversed and it was said that it was as much as if no Exigent had been awarded at all And upon the Reversall of the utlagary a Supersedeas was awarded and the party restored to his goods which were taken in Execution upon the Capias utlagatum It was also resolved in this Case That if the Sheriffe upon a Writ of Execution served doth deliver the mony or goods which are taken in Execution to the Plaintiffs Atturney it is as well as if he had delivered the same to the Plaintiff himself for the Receipt by his Atturney is in Law his own Receipt But if the Sheriff taketh goods in Execution if he keep them and do not deliver them to the paâ—â— at whose suit they are taken in Execution the party may have a new Execution as it was in the principal Case because the other was not an Execution with Satisfaction Mich. 11. Jacobi in the Common Pleas. 312 CHAVVNER and BOVVES Case BOwes sold three Licences to sell Wine unto Chawner who Covenanted to give him ten pounds for them and Bowes Covenanted that the other should enjoy the Licences It was moved in this Case whether the one might have an Action of Covenant against the other in such Case And the opinion of Warburton and Nichols Justices was That if a Man Covenant to pay ten pound at a day certain That an action of Debt lyeth for the money and not an action of Covenant Barker Serjeant said he might have the one or the other But in the principall Case the said Justices delivered no opinion 313 Note That this Day Cooke Chief Justice of the Common Pleas was removed to the Kings Bench and made Lord Chief Justice of England And Sir Henry Hobart who was the Kings Aturney generall was the day following made Lord Chief Justice of the Court of Common Pleas. Sir Francis Bakon Knight who before was the Kings Solicitor was made Atturney Generall And Mr Henry Yelverton of Grays-Inn was made the Kings Solicitor and this was in October Term. Mich. 11 Jacobi 1613. Mich. 11. Jacobi In the Common Pleas. 314 THis Case was put by Mountague the Kings Serjeant unto the Lord Chief Justice Hobart when he took his place of Lord Chief Justice in the Common Pleas viz. Tenant in tail the Remainder in taile the Remainder in Fee Tenant in tail is attainted of Treason Offence is found The King by his Letters Patents granteth the lands to A who bargaineth and selleth the land by Deed unto B. B. suffers a common Recovery in which the Tenant in tail is vouched and afterwards thâ— Deed is enrolled And the question was Whether it was a good Bar of the Remainder And the Lord Chief Justice Hobart was of opinion That it was no barre of the Remainder because before enrollment nothing passed but only by way of conclusion And the Bargainee was no Lawfull Tenant to the Precipe Mich. 11. Jacobi in the Common Pleas. 315 WHEELER's Case IT was moved for a Prohibition upon the Statute of 5. E. 6. for working upon Holy days and the Case was That a man was presented in the spirituall Court for working viz. carriage of Hay upon the feast day of Saint John the Baptist when the Minister preached and read divine service and it was holden by the whole Court of Common Pleas That the same was out of the Statute by the words of the Act it self because it was for necessity And the Book of 19 H. 6. was vouched That the Church hath authority to appoint Holy days and therefore if such days be broken in not keeping of them Holy that the Church may punish the breakers therof But yet the Court said That this day viz. the Feast day of Sr John the Baptist was a Holy day by Act of Parliament and therefore it doth belong unto the Judges of the Law whether the same be broken by doing of such work upon that day or not And a Prohibition was awarded Mich. 11 Jacobi in the Common Pleas. 316 REARSBY and CUFFER's Case IT was moved for a Prohibition to the Court of Requests because that a man sued there by English Bill for money which he had layd out for an Enfant within age for his Meat drink necessary apparel and set forth by his Bill that the Enfant being within age did promise him to pay the same And a Prohibition was awarded because as it was said he might have an action of Debt at the common Law upon the contract for the same because they were things for his necessary livelihood and maintenance And it was agreed by the Court That if an Infant be bounden in an Obligation for things necessary within age the same is not good but voidable Quaere for a difference is commonly taken When the Assumpsit is made within age and when he comes to full age For if he make a promise when he cometh of full age or enters into an Obligation for necessaries which he had when he was within age the Law is now taken to be that the same shall binde him But see 44. Eliz. Randals Case adjudged That an Obligation with a penaltie for money borrowed within age is absolutely void Mich. 11. Jacobi in the Common Pleas. 317 SMITH's Case SMith one of the Officers of the Court of Admiralty was committed by the Court of Common Pleas to the prison of
And per Curiam a Prohibition shal be awarded And Cook chief Justice said That there were three Causes in the Bill for which a Prohibition should be granted which he reduced to three Questions 1. If a Copy-holder payeth his rent and the Lord maketh a Feoffment of the Manor Whether the Copy-holder shall be compelled to attorn 2. If a man be seised of Freehold Land and Covenants to stand seised to an use Whether in such case an Attornment be needfull 3. If a Feoffment be made of a Manor by Deed Whether the Feoffee shall compell the Tenants to attorn in a Court of Equity And for all these Questions It was said That the Tenants shall not be compelled to attorn for upon a Bargain and Sale and a Covenant to stand seised there needs no attronement And Cook in this case said That in 21. E. 4. the Justices said That all Causes may be so contrived that there needed to be no Suit in Courts of Equity and it appears by our books That a Prohibition lies to a Court of Equity when the matter hath been once determined by Law And 13. E. 3. Tit. Prohibition and the Book called the Diversity of Courts which was written in the time of King Henry the eighth was vouched to that purpose And the Case was That a man did recover in a Quare Impediâ— by default and the Patron sued in a Court of Equity viz. in the Chancery and a Prohibition was awarded to the Court of Chancery Mich. 11 Jacobi in the Common Pleas. 298 Sir JOHN GAGE and SMITH's Case AN Action of Waste was brought and the Plaintiffe did declare that contrary to the Statute the Lessee had committed Waste and Destruction in uncovering of a Barn by which the timber thereof was become rotten and decayed and in the destroying of the stocks of Elmes Ashes Whitethorn and Blackthorn to his damage of three hundred pound And for title shewed That his Father was seised of the Land where c. in Fee and leased the same to the Defendant for one and twenty years and died and that the Land descended to him as his son and heir and shewed that the Waste was done in his time and that the Lease is now expired The Defendant pleaded the generall issue and it was found for the Plaintiffe and damages were assessed by the Jury to fifty pound And in this case it was agreed by the whole Court 1. That if six of the Jury are examined upon a Voyer dire if they have seen the place wasted that it is sufficient and the rest of the Jury need not be examined upon a Voyer dire but onely to the principall 2. It was agreed if the Jury be sworn that they know the place it is sufficient although they be not sworn that they saw it and although that the place wasted be shewed to the Jury by the Plaintiff's servants yet if it be by the commandment of the Sheriffe it is as sufficient as if the same had been shewed unto them by the Sheriff himselfe 4. It was resolved That the eradicating of Whitethorn is waste but not of the Blackthorn according to the Books in 46. E. 3. and 9. H. 6. but if the blackthorn grow in a hedg and the whole hedg be destroyed the same is Waste by Cook chief Justice It was holden also so that it is not Wast to cut Quick-set hedges but it shall be accounted rather good husbandry because they will grow the better 5. It was agreed That if a man hath under-woods of Hasell Willowes Thornes if he useth to cut them and sell them every ten years If the Lessee fell them the same is no wast but if he dig them up by the roots or suffereth the Germinds to be bitten with cattel after they are felled so as they will not grow again the same is a destruction of the Inheritance and an Action of wast will lie for it But if he mow the Stocks with a wood-sythe as he did in the principall Case the same is a malicious Wast and continuall mowing and biting is destruction 6. It was said That in an Action of Wast a man shall not have costs of Suit because the Law doth give the party treble damages And when the generall issue Nul Wast is pleaded and the Plaintiff counted to his damages 100l. the Court doubted whether they could mitigate the damage But 7. It was agreed That in the principal Case although the issue were found for the Plaintiff that he could not have judgment because he declared of Wast done in 8. several closes to his damage of 300l. generally and did not sever the damages And the Jury found That in some of the said Closes there was no Wast committed Wherefore the Court said he could not have judgement through his own default But afterwards at another day Hobart then chief Justice and Warburton Justice said That the verdict was sufficient and good enough and so was also the declaration and that the Plaintiffe might have judgment thereupon But yet the same was adjourned by the Court untill the next Term. Mich. 11. Jacobi in the Common Pleas. 299 CLARK's Case NOte It was said by Cook chief Justice and agreed by the whole Court and 41. and 43. E. 3. c That if a man deliver money unto I. S. to my use That I may have an Action of Debt or account against him for the same at my election And it was agreed also That an Action of Trover lieth for money although it be not in bags but not an Action of Detinue Mich. 11. Jacobi in the Common Pleas. 300 IRELAND and BARKER's Case IN an Action of Wast brought the Writ was That the Abbot and Covent had made a Lease for years c. And it was holden by the Court that it was good although it had been better if the Writ had been That the Abbot with the assent of the Covent made the Lease for that is the usuall form but in substance the Writ is good because the Covent being dead Sons in Law by no intendment can be said to make a Lease But the Dean and Chapter ought of necessity to joyne in making of a Lease because they are all persons able and if the Dean make a Lease without the Chapter the same is not good per curiam if it be of the Chapter Lands And in Adams and Wâ—oâ—â—stey's Case Harris Serjeant observed That the Lease is said to be made by the Abbot and Covent and it is not pleaded to be made by the Abbot with the assent of the Covent Mich. 11 Iacobi In the Common Pleas. 301 The Dean and Canons of Winsor and WEBB's Case IN this Case it was holden by the Court That if a man give Lands unto Dean and Canons and to their Successors and they be dissolved or unto any other Corporations that the Donor shall have back the Lands again for the same is a condition in Law annexed to the Gift and in such Case no Writ of
were these viz. Thou usest me now as thy Wife did when she stole my goods Mich. 11. Iacobi in the Common-Pleas 332. ROES and GLOVE 's Case AN action of Debt was brought upon a Bond in Mich. Term 9 Jac and in Hillary Term after the parties were at issue upon the Statute of Usurie and it was found against the Defendant Afterwards Ter. Trin. a Writ of Error was brought retornable Mich. 10. Jacobi in which Term no Errors were assigned And afterwards in Hillary Term following two Errors were assigned the one That there was no such Statute as the Statute of 37 H. 8. of Usurie which was against what he had before confessed by his Plea the second Error was That whereas J. S. of Exeter was retorned of the Jury it was assigned for Error that J. S. of another place was sworn upon the Inquest and in this Case the Court advised the Defendant in the Writ of Error to plead In nullo erratum est By which the Court did seem to incline that they were no Errors Mich. 11. Iacobi in the Common-Pleas 333. BRADLEY and JONES Case IN an action upon the Case the case was That the Defendant did exhibite Articles against the Plaintiff in the Chancery before Dr. Cary and there swore the Articles and afterwards he sued in the Kings Bench and had Process out of that Court upon the Articles sworn in Chancery and for this an action upon the Case was brought and it was adjudged that the action would lie The articles exhibited in the Chancery were That the Plaintiff being an Attorney at Law was a Mainteinor of Juries and Causes and a Barretor and the Defendant prayed the Peace against him in the Kings Bench. And in this Case it was resolved 1. That a man might pray the Peace or Good Behaviour of any other man in any of the Kings Courts but then it must be done in due form of Law and if he do it so no action upon the Case will lie as it was resolved 27 Eliz. in Cutler and Dixons case in the Kings Bench. But it was agreed that if a man sueth in a Court which hath not jurisdiction of the Cause an action upon the Cause will lie but not where the Court hath jurisdiction of the Cause 2. It was resolved That the action did lie in the Case at Bar because he did exhibite the articles in Chancery and did not pursue them there For when he had sworn the articles in the Chancery he could not have a Supplicavit out of the Kings Bench and the Oath and Affidavit in the Chancery doth remain as a Scandal upon Record And Hobart Chief Justice said That every Court ought to intermeddle with their own proper causes and that two Courts are not to joyn in one punishment for punishment is not to be by parcels And he said That if a man claimeth right to the Land of another he is not punishable for it but if he make title vnto a Stranger then he shall be punished for every one ought to meddle with his own business 3. It was resolved That when a thing doth concern the Commonwealth the same doth concern every one in particular And so it is lawful for any man to require the Good behaviour of another for the publique good Interest etenim reipublicae ut maleficia punientur 4. It was resolved that the action did lie because the Defendant made the articles in Chancery but a colour of the Good Behaviour and although that the Kings Bench might grant the Good Behaviour without any articles preferred yet when first they begin in another Court they ought to follow the cause there And Hobart the Chief Justice in this case said that an Attorney may not labour Jurors in the behalf of his Client for that is Imbracery Mich. 11. Iacobi in the Common-Pleas 334. FIAL and VARIER's Case IN an Action upon the Case upon an Assumpsit the Case was this A man did promise to stand to the Arbitrement of J. S. J. D. if they made their Arbitrement and Award within ten dayes and if they do not make their Award within ten dayes that if they nominate an Umpier and he make an Award within the said ten dayes that then c. J. S. J. D. did not make any Award within ten dayes but the fourth day after the Submission they did nominate J. N. to be Umpier who made an Award within the said ten dayes and the Defendant would not perform the Award wherefore the Plaintiffe brought the action Sherley Serjeant It is repugnant For the first Arbitrators had the whole ten dayes to make their Award and then cannot the Umpier make an Award within the said ten dayes But the opinion of the whole Court was that the action would lie and that it should be construed thus viz. That if an arbitrement and award be made within ten dayes by the first Arbitrators or by the Umpier For the first Arbitrators may examine the matter for two or three dayes and if they cannot make any award then the Umpier shall have the rest of the ten dayes to make the award and so it was adjudged Mich. 11. Iacobi in the Common-Pleas 335. COLT and GILBERT's Case AN action upon the Case brought for these words He is a Thief and stole a Tree adjudged that the action would lie for the later words do not extenuate the former But Thou art a Thief for thou hast robbed my Orchard are not actionable v. C. 4 par Bretridges Case Mich. 11. Iacobi in the Common-Pleas 336. BROOK's Case AN action upon the Case was brought for words The Plaintiffe set forth in his Declaration That he was a Mercer by his trade and did sell wares and commodities in his shop and did keep divers Books of his trade and Debt-books and that the Defendant said unto Mr. Palmer being the Plaintiffs Father-in-law these words of the Plaintiffe viz. Your Son-in-Law Brooks deceived me in a Reckoning and he keepeth in his shop a false Debt-book And I will shame him in his Calling Nichols Justice and Hobart Chief Justice were of opinion that the action would not lie for those words 1. Because the words single of themselves are not any â—lander and when words will bear an action it ought to be out of the force and strength of the words themselves 2. The first words Thou hast deceived me in a Reckoning will bear no action because it is impossible but that Tradesmen and Merchants which keep Debt-books will sometimes mistake one Figure for another and so the same doth turn to the prejudice and damage of another against the will of the party himself And so the subsequent words He keepeth a false debt-Debt-book are not actionable because it may be falsified by the Servants of the party and not by the Defendant himself and also it may be false written Et interest reipublicae ut sit finis litium and it should be a cause of many Suits if such a nice construction
Commission which is their authority but if it had been left out in their Commission then the Writ had been good enough And he said that when a man meddles with a thing which is but surplusage which he needed not to do he must recite the same substantially otherwise his plea will be vitious C. 4 par Palmers case And when he maketh Tho. Fleming Capit. Justic ad Placita indefinitely he varieth from the truth for the stile is Tho. Fleming Capit. Justic ad Placita coram Rege tent Haughton Justice acc ' and he said that in every Writ of Error which is to remove a Record three things ought to be expressed 1. Mention is to be made before what person it was taken as the book is in 28 H. 6. 11. 2. It is to mention betwixt whom it was 9 H. 6. 4. 3. The manner of the caption is to be mentioned whether by Writ or without Writ 2 R. 3. 2 3. and this Writ faileth in the first of them therefore he concluded that the VVrit should abate Cook Chief Justice was of the same opinion and agreed that Misnosmer and variance are not to be favoured if they be not substantial and essential quae dant esse rebus and he said that the variance in this case is of such nature For in many Records yet extant and in the time of King H. 3. it is to be found that the Chief Justice of England did sit and give Judgment in the Common-Pleas and in the Exchequer and so then Capital Justic ad Placita is too general because he might sit and give Judgment in any of the said Courts The second Exception was because that the VVrit saith Assisa capta c. and doth not say per breve nor sine breve nor doth say secundum legem consuetudinem c. For in 43 Eliz. in the Case betwixt Cromwell and Andrews it was adjudged not good to say That such an Action came into the Common-Pleas out of the Country and doth not shew that it came by adjournment or by Certlorari or Mittimus To which it was answered by Damport Councellor for the Plaintiff that it is a strong intendment that the Assise was taken per breve and therefore it needed not to be expressed because it is a general and not a special Assise Crook Justice The Exception is good for it is so general that it cannot be intended which Assise it was For put case there were two Assises betwixt the same parties it cannot be known which Assise is intended And of the same opinion was Haughton Justice Dodderidge contrary and he said Notwithstanding the Exception the Record ought to be removed by the Writ For the Judges Conscience may be well satisfied which Record is to be removed And here the Record which is to be removed is so precisely shewed that no body can doubt of it which ought to be certified And there are Records removed by Writs of Error which are more dubious then this is v. 19 Eliz. Dyer 356. 20 E. 3. But in this case the Writ is much enforced by the words Sommon Capt. For in every Assise there are four Commands to the Sheriffe 1. Facere tenementum esse in pace to quiet the possession 2. Facere recognitionem or Recognit videre tentam 3. Summoneas 4. Ponas eos per vadios c. For which cause of necessity it must be meant an Assise per Breve The third Exception was because in the Writ it was not shewed who was Plaintiffe and who Defendant Dodderidge It is generally to be agreed That the Writ of Error ought to agree with the Record which Rule is taken in 3 H. 6. 26. C. 3. par the Marquess of Wincbesters Case But yet every Variance doth not abate this VVrit For if the variance be only in matter of circumstance as it is in this Case the VVrit shall not abate vid. 9 H. 6. 4. 4 5 Phil. Ma. Dyer 164. 2 Eliz. Dyer 173. 180. 28 H. 6. 11. 12. The fourth Exception was because it doth not shew the place of the Caption of this Assise but sayes generall in Com. Norfolk Haughton held that rather to be examinable in the Parliament then here The last Exception was because the VVrit is directed to Cook Chief Justice that he certifie the Record sub sigillo suo whereas it was said the Record it self was to come in Parliament and there a Transcript thereof is to be made and the Record to be remanded V. 22 E. 3. 23 Eliz. Dyer 357. 1 H. 7. 29. against the Book of Entries 302. To which it was answered That it is at the pleasure of the Parliament to have either the one or the other 22 E. 3. 3. 8 H. 5. Error 88. To which Cook agreed And note that upon this VVrit of Error a Supersedeas was fraudulently procured and a VVrit of Attachment issued forth against Bacon who procured it And the Supersedeas was disallowed because that another Supersedeas was granted in the first VVrit of Error And a man can have but one Supersedeas But the Question in this Case was Admitting that the VVrit of Error be good and not abateable If the same be a Supersedeas in it self And the Court doubted of that point For Cook Chief Justice said That he had viewed 26 or 27 VVrits of Error which were brought in Parliament where the first Judgment was disaffirmed and but one where the Judgment was affirmed and that is in 23 Eliz. Dyer 357. the Record of which cannot be found Et quod in praxi est inusitatum in jure est suspectum The Books where Error was brought in Parliament are 2 E. 3. 34 40 in the old print 22 E. 3. 3. 42 Ass pl. 22. 9 H. 5. 23. 1 H. 7. 29. 23 Eliz. Dyer 375. And it should be mischievous for delay for a Parliament is only to be summoned at the Kings pleasure Haughton Dodderidge and Crook held cleerly That this VVrit of Error was a Supersedeas in it self and that upon the Book of 8 E. 2. Error 88. 1 H. 7. 19. where it is said That the Justices did proceed to Execution after the Judgment affirmed in Parliament and therefore ex consequente sequitur not before And therefore the VVrit of Error is a Supersedeas that they cannot proceed But there is no President of it in the Register but a Scire facias fo 70. And the Court held That if a Supersedeas be once granted and determined in default of the party himself that he shall never have another Supersedeas but otherwise if it fail by not coming of the Justices Also Cook Chief Justice held That by this VVrit of Error in Parliament Sir Christopher Heydon could not have the effect of his suit because it is to reverse a Judgment coram Rege and so the Judgment given in the Common-Pleas stands firm and Sir Christopher Heydon is put to a new VVrit of Error in this Court for the Judgment
removed but if the VVrit of Error want only form but is sufficient for the matter in substance the VVrit shall not abate but the partie may have a new VVrit of Error coram vobis residet c. Trin. 3 Caroli in the Kings Bench. 464. MILL's Case ACtion upon the Case for these words Thou hast Coyned Gold and art a Coyner of Gold Adjudged the Action will not lie for it may be he had Authority to Coyn and words shall be taken in mitiori sensu Pasch 3 Car in the Kings Bench. 465. BROOKER's Case THe question was VVhether the Feoffee of the Land might maintain a VVrit of Error to reverse an Attaindor by Vtglary and the Case was this William Isley seised in Fee of the Mannor of Sundridge in Kent had issue Henry Isley who was Indicted of Felony 18 Eliz. and 19. Eliz. the Record of the Indictment was brought into this Court and thereupon 20 Eliz. Henry Isley was outlawed William Isley died seised Henry Isley entred into the Mannor and Land as son and heir and being seised of the same devised the Mannor and Lands to C. in Fee who conveyed the same to Brooker and Brooker brought a Writ of Error to reverse the Outlawry against Henry Isley Holborn argued for the King and said that Brooker was no way privy to the attaindor of Henry Isley but a meer stranger and therefore could not maintain a Writ of Error And first he said and took exception that he had not set himself down Terre-Tenant in possession Secondly he saith in his Writ of Error That the Mannor and Lands descended to Henry Isley as son and heir when as he was attainted The third exception was That he saith that Henry Isley did devise the Lands and that he could not do because he was a person Attainted Fourthly he said that Brooker was not Tenant so much as in posse 4 H. 7. 11. If it were not for the words of Restitution the partie could not have the mean profits after the Judgment reversed 16 Ass 16. Lessee for years pleaded to a Precipe and reversed it the question was whether he should be in statu quo vi Librum for it is obscure If this Attaindor of Henry Isley were reversed yet it cannot make the devise good For there is a difference betwixt Relations by Parliament which nullifie Acts and other Relations Vi. 3 H. 7. Sentlegers Case Petition 18. The violent Relation of Acts of Parliament If a Bargain and Sale be the Inrollment after will make Acts before good but a Relation by Common Law will not make an Act good which was before void C. 3. part Butler and Bakers Case A gift is made to the King by Deed enrolled and before the enrollment the King granteth away the Land the Grant is void yet the enrollment by Relation makes the Lands to pass to the King from the beginning Admit in this Case that Brooker were Terre-Tenant yet he is not a party privy to bring a Writ of Error to reverse the Attaindor of him who was Tenant of the Land and I have proved That although the Attaindor were reversed yet he hath nothing because the Devise was void and is not made good by Relation It is a rule in our Books that no man can bring a VVrit of Error but a partie or privy 9 E. 4. 13. 22 E. 4. 31 32. 9 H. 6. 46. b. Ass 6 C. 3. part in the Marquiss of Winchesters Case The heir of the part of the mother cannot have the VVrit of Error but the heir of the part of the father may So if erronious Judgment be given in the time of profession of the eldest son and afterwards he is dereigned he shall have the Writ of Error In 22 H. 6. 28. The heir in special taile or by Custom cannot have Error But yet M. 18 Eliz. in Sir Arthur Henninghams Case it was adjudged That the special heir in tail might have a Writ of Error The Baile cannot maintain a Writ of Error upon a Judgment given against the Principal because he was not privy unto the Judgment therefore it shall be allowed him by way of plea in a Scire facias I never find that an Executor can have Error to reverse an Attaindor but for the misawarding of the Exigent Marshes Case was cited C. 5. part 111. Fitz 104. Feoffee at the Common Law could not have an Audita Quaerela in regard he was not privy 12 Ass 8. 41. Keâ—laway 193. There the Terre-Tenant brought a Writ of Error in the name of the heir and not in his own name 24 H. 8. Dyer 1. There it is said That he who is a stranger to the Record shall have Error To that I answer That he in the Reversion and the particular Tenant are but one Tenant for the Fee is demanded and drawn out of him But in the principal Case at Barr no Land is demanded but a personal Attaindor is to be reversed Also there it is put That if the Conusee extend before the day there it is said that the Feoffee may have Error 17 Ass 24. 18 E. 3. 25. Fitz. 22. To that I answer That the Feoffee is privy to that which chargeth him for the Land is extended in his hands and if the Feoffee there should not have a Writ of Error the Law should give him no manner of remedy for there the Conusor himself cannot have Error because the Lands are not extended in his hands Also it is there said that the Feoffee brought a Scirefacias against him who had execution of the Land To that I answer That that is by special Act of Parliament Also there it is said That if the Parson of a Church hath an Annuity and recovereth and afterwards the Benefice is appropriated to a Religious house the Soveraign of the house shall have a Scirefacias I answer That in that Case he is no stranger for that he is perpetual Parson and so the Successor of the Parson who recovered 12 H. 8. 8. There a Recovery was against a Parson and there Pollard said that the Patron might have Error I answer That Pollard was deceived there for it is said before that the Parson hath but an Estate for life and then he viz. the Patron is as a Recoverer who shall have a Writ of Error Dyer 1. But the Parson hath the Fee and therefore Pollard was mistaken as it appeareth by Brook Fauxi fier de Recovery 51. 19 H. 6. 57 Newton A false verdict is had against a Parson the Patron cannot have an Attaint There is a difference if one be partie to the Writ although not partie to the Judgment Error 72. A Quare Impedit was brought by the King against the Patron and the Incumbent and Judgment only was had against the Patron and the Incumbent Parson brought a Writ of Error but if he had not been partie to the Writ he could not have maintained Error So in Attaint the partie to the Writ though not to the Judgment shall