shall be barred And the second those which have Right title or interest accrued after the Fine levied by reason of any matter which preceded the Fine and in both cases the Estate which is barred ought to be turned into a right or otherwise it shall not be barred the which cannot be here for the estate is given by the Custome and it is to have his beginning after the Death of the first Tenant and though that the first Tenant commit Forfeiture yet he in remainder cannot enter for his time is not yet come as in 45 Ed. 3. is a collaterall Lease with warranty to the Tenant for life in possession this shall not be a barr insomuch that it is made to him which hath possession so if a man make a Feoffment upon condition and the Feoffee levy a Fine with proclamations and five yeares passe and the condition is broken the Feoffee may enter at any time otherwise if the Fine had been levied after the condition broken and so if the Lord be intituâ—ed to have Cessavit and Fine is levied by the Tenant and five yeares passe he shall be barred and this was the cause of the Judgment in Saffins case insomuch as the Lessee had present interest to enter and this was altered into a Right by the Feoffment and then the Fine was a Barr but here he in Remainder hath no right till after the Death of him which was the first Tenant and then his right to the possession begins and then if a Fine had been levied with proclamation this shall be a Barr and so he concluded that Judgment should be entered for the Plaintiffe Coke cheife Justice accordingly and he agreed also that the sole question is if by acceptance of a Bargaine and sale by the first Tenant for life the Remainder be turned into a right and he sayd that right sometimes sleepeth but it never dyes but this shall be intended the right of the Law and not right of Land for that may be barred by Writ of Right at the Common Law and he intended that Copy-holdes are within the Statutes of Fines be they Copy-hold for life yeares in tayl or in fee for the third part of the Realme is in Copy-holdes and two parts in Lease for yeares and if these shall not be within the Statute then this doth not extend to three parts of the Realme and it is agreed in Heydons case 3 Coke 8. a. That when an act of Parliament doth not alter the Tenure Service Interest of Land or other thing in prejudice of the Lord or of the custome of the Mannor or in prejudice of the Tenant there the generall words of such act of Parliament shall extend to Copy-holds and also it is resolved to be within the Statute of 32 H. 8. Of Maintenance and also it is within the expresse Letter of this which containes the word Interest and Copy-holder hath interest and so also of Tenant by Statute Merchant then the question will be if the acceptance of a Bargaine and sale turnes that to a right and he intended that his Estate for life remaines though that it is only passive in acceptance of Bargain and sale and for that it shall not be prejudice more then if Tenant at will accepts a Bargaine and Sale for his Estate at will this notwithstanding remaines but if Lessee for years or life accepts a Fine upon conusance of right this is a forfeiture insomuch that it is a matter of record and it shall be an estoppel to say that he did not take Fee by that doth not admit the Reversion to be in another also insomuch that the Bargain and sale was executed by the Statute for this cause it shall not be prejudice as it was adjudged in the Lady Greshams case in the Exchequer 28 Eliz. Where two severall conveyances were made with power of Revocation upon tender of ten pound and adjudged by act of Parliament that a revocation was good and also that no license of alienation shall be made insomuch that it was by act of Parliament which doth no wrong and it is for the Trespasse for which the party ought to have license and if it be not Trespasse there need no license before hand nor pardon afterwards So if a man makes a Lease for yeares remainder for yeares the first Lessee accepts Bargaine and Sale this shall not turn these in remainder to prejudice Thirdly it seemes to him also that notwithstanding the acceptance of the Bargain and Sale the first Copy-hold Estate for life remains in Esse and is not determined For this differs from an Estate of Land for it shall not be subject to a Rent granted by the Lord the first Estate remaines till all the remainders are determined for the first tenant for life cannot surrender to the Lord also it is customary estate for by the Common Law this being granted to three successively this shall be determined and extinct for the third part for they three take into possession and the word successively shal be taken as void but here the Custome appoints that the remainder shall not have his beginning till the death of the first-Tenant and that they should take by succession and for that there is a difference between this customary Estate and other Estates at the Common Law and other surrenders for if a Copy-holder surrender to the use of another for life nothing passeth but for life only the Lord hath not any remainder by this Surrender and if this Tenant for life commits forfeiture he in reversion shall not take advantage of that and if at the Common Law Tenant for life remainder for life or in fee be and the first Tenant for life makes a Feoffment and after levies a Fine and resolved that he in reversion should not be bound till 5 years are incurred after the death of the 1. Tenant for life for then his title of Entry first accrues in apparancy and before that is in secrecy of which he in remainder is not held to take notice and so in this case he in remainder shall not be bound till five yeares are incurred after the death of the first Tenant and the rather insomuch as the first Estate remaines for that that the first Tenant was only passive and not active and so he concluded that Judgement shall be given for the Plaintiff insomuch that the Fine was no Bar and upon this concordance of all the three Justices in opinion no other Justices being present this Tearm Judgment was entered accordingly Pasche 1612. 10. Jacobi in the Common Bench. Danyell Waters against the Deane and chapter of Norwich IN covenant The case was this in 37 H. 8. the then Deane and Chapter of Norwich made a Lease to one Twaits for fifty yeares which ended 35 Eliz. in time of Ed. 6. The then Dean and Chapter surrendred all their possessions to the King which those newly endowed and incorporated by the name of Deane and Chapter of the foundation
in the Statute there is not any exception of the Universities nor of those which are Gradiats there and for that they shall be tryed by the sayd Act and the Statute of 14 H. 8. chapter 5 Only excepts those which are Gradiats of Oxford or Cambridge which have accomplished all things for the form without any Grace and if this Exception shall be intended to extend to others then all the University shall be excepted by that and such exception was too generall and over he sayd that the Plaintiff gave absurd and contemptous answer when he being cyted before them sayd that he would not be ruled nor directed by them being such grave and searned men for that that he hath practised against the Statute he was worthily punished and committed for it should be a vain Law if it did not provide punishment for them that offend against that and Bracton saith Nihil est habere Leges si non sit unâ—s qui potest Leges tueri and for this here are four grave and discreet men to defend and maintain the Law and to punish all Offenders against that according to the Statute by Imprisonment of their Bodies and other reasonable wayes and the sayd four men have the search as well of those men as of other Mediciners and the Statute of 1 Marie provides that the Keepers of Prisons shall receive all which committed by the sayd four grave and learned men and though there be great â—are committed to them by the sayd Statute and the sayd Letters Patents yet there is a greater trust reposed in them then this for we commit to them our lives when we receive Phisâ—ck of them and that not without cause for they are men of Gravity learning and Discretion and for that they have power to make Lawes which is the Office of the Parliament for those which are so learned may be trusted with any thing and for the better making of these they have power to assemble all the Commons of their Corporation and the King allows of that by his Letters Patents for it is made by a Congregation of Wise learned and discreet men and the Statute of 1 Marie inflicts punishment upon Contempts and not for any other offences and they held a Court and so may commit as every other Court may for a contempt of common right without act of Parliament or Information or other legall form of proceeding upon that as it appeares by 7 H. 6. for a contempt committed in a Leet the Steward committed the Offender to Prison and it was absurd to conceive that the Statute will allow of commitment without cause and it is a marvelous thing that when good Lawes shall be made for our health and Wealth also yet wee will so pinch upon them that wee will not be tryed by men of experience practise and Learning but by the University where a man may have his Degree by grace without merit and so for these reasons he concluded that this Action is not maintainable Coke cheife sayd that the Cause which was pleaded for that the Plaintiff was committed was for that that he had exercised Phisick within the City of London by the space of a Moneth and did not very fitly answer for which it was ordained by the Censors that he should pay a bundred shillings and that he should forbear his practise and that he did not forbear and then being warned of that and upon that being summoned to appear did not appear and for that it was ordayned that he should be arrested and that after he was summoned again and then he appeared and denyed to pay the hundred shillings and he sayd that he would practise for he was a Doctor of Cambridge and upon that it was ordained that he should be committed till he should be delivered by the Doctors of the Colledge and upon this was the Demurrer joyned and in pleading the Plaintiff sayd that he was a Doctor of Philosophy and Phisick upon which the Lord took occasion to remember a saying of Gallen that is Vbi Philosohpia desinit ibi medicina incipit and he sayd the only question of this case depends not upon the payment of the sayd hundred shillings but upon the words of the Letters patents of the King and the said two Statutes the words of which are Concessimus eidem presidenti c. Quod nemo in dicta Civitate aut per septem milliaria in circuita ejusdem exerceat dictam facultatem nisi ad hoc per dictum presidentem communitatem seu sucscires eorum qui pro tempore fuerunt admissus sit per ejusdem presidentis Collegij titeras sigillo suo commui sigillat as sub paena centum solidorum pro quolibet mense quo non admissus eandem facultatem exercuit dimidium inde nobis heredibus nostris dimidium dicto presidenti Collegio applicandum preteriá volumus concedimus pro nobis c. Quod per presidentem Collagium communitationem pro tempore epistentium eorum successores in perpetuum quatuor singulis annis per ipsos eligantur qui habeant supervisum scrutinium correctionem gubernationem omnium sigulorum dictae Civitatis medicorum utentium facultate medicinae in eadem Civitate ac aliorum medicorum fornisicorum quorumcunque facultatem illam medicinae aliquo modo frequentantium utensium infra eandem civitatem suburbia ejusdem sibi septem milliarea in circuitu ejusdem Civitatis ae putationem eorundem pro delectis suis in non bene exequendo faciendo utendo illa nec non supervisum scrutinium hujusmodi medicorum eorum receptionem per predictos medicos sive aliquem eorum hujusmodi legeis nostris pro eorum Infirmitatibus curandis suavandis dandis imponendum utendis quoties quando opus fuerit probo modo utilitate eorundem legiorum nostrorum Ita quod punitio hujusmodi medicorum utentium dicta facultate medicinae sic in premissis de linquentium per Fines Amerciamenta Imprisonamenta corporum suorum per alas vias rationabiles Congrâ—as exeqnantur as it appears in Rastal Phisitians 8018. 392. So that there are two distinct Clauses The first if any exercise the sayd Faculty by the space of a Moneth without admission by the President c. shall sorfeit a hundred shillings for every Moneth be that good or ill it is not materiall the time is here only materiall for if he exercise that for such a time he shall sorfeit as aforesayd The second clause is that the President c. Shall have Scrutinium Medicorum c. punitionem eorum pro dilictis suis in non bene faciendo utendo exequendâ— c. And for that the President and the Colledge may commit any delinquent to Prison And this he concluded upon the words of the Statute and he agreed with Walmesley that the King hath had extraordinary care of the health of
him according to his promise The Defendant pleads Non assumpsit And a Verdict for the Plaintiff and moved in Arrest of Judgement for that the Plaintiff at the time of the Contract was an Infant and that he could not perform his promise by reason of his Infancy and therefore the promise void and another Exception for that it was not alleadged in what sum the Plaintiff and his Surety offered to be bound and Judgement was that the Plaintiff Nihil capiat per breve JAcob versus Songate Trin. 9. Jac. rotulo 2776. An Action upon the case brought for this word Perjured The Defendant justifies that it was found by Verdict that the Plaintiff was perjured but no Judgement entred upon that Verdict And whether the Plea were good being there was no Judgement was the Question and it was adjudged no Bar because no Judgement was given in the first-Action and so Judgement entred for the Plaintiff CRuttall versus Hosener Pasch 16. Iac rotulo Action of the case for these words He meaning the Plaintiff hath caught the French Pox and brought them home to his Wife And Judgement for the Plaintiff THornton versus Iepson The Plaintiff being a Currier brought an Action upon the case for these words He is a common Barretor but the words would not lie for a man of that Profession but would lie for a Justice of Peace or Lawyer IReland versus Smith Hill 9. Iac. rotulo Action upon the case brought for these words You Norgate take part against me with Ireland who is a Papist and hath gotten a Pardon from the Pope and can help thee to one if thou wilt The Plaintiff laid a communication between the Defendant and Norgate and alleadges himself of the age of 40. years and not above because it might appear to the Court that he was born within Queen Elizabeths Reign The Court held the Action would not lie as it was adjudged in Halls case and for this word Papist no Action will lie If I deliver my Goods to you to keep and I request them and you deny the Delivery of them now an Action of Trover will lie otherwise it is without a Deniall if I distrain Cattle I must not use them WArter versus Freeman Mich. 15. Iac. rotulo 1941. Action upon the case brought for that the Defendant sued out a Fieri facias upon a Judgement which he had against the Plaintiff upon which Judgement the Defendant had before sued out a Fieri facias and the Sheriff of Oxford had upon the first Fieri facias returned that he had levied the Debt and Damages and that they remained in his hands for want of Buyers and the Defendant knowing that the Sheriff had levied the Debt and Damages and intending to charge him again prosecuted another Fieri facias and that the Sheriff had again levied the said Debt and Damages and hath paid the Debt and Damages to the Plaintiff to wit at Westminster in Com. Middlesex where the Action was brought and Judgement after Debate was given for the Plaintiff though the Defendant alleadged that the Fieri facias was an Act in Law and so no cause of Action against him PArkhurst versus Powell vic Denbigh Mich. 15. Iac. rotulo An Action of the case for a false Return of a Capias utlagat and declares that he prosecuted a Capias utlagat directed to the Sheriff of Denbigh where the Defendant inhabited and delivered the said Writ to the Sheriff to be executed and the Defendant being then in the company of the Sheriff and might safely have arrested him did not but suffered him to escape and returned that he was not to be found and upon Not guilty pleaded it was tried in the County of Middlesex where the Action was brought and moved in Arrest of Judgement that the Triall ought to be in Denbigh because the not arresting was the principal matter but because the Action was grounded upon double matter the Plaintiff had his Election to bring his Action either in the County of Denbigh or Middlesex by the whole Court BLand versus Edmonds Pasch 16. Jac. rotulo 444. Action upon the Case brought for these Words Videlicet George Bland is a troublesome Fellow and he did combine with thee to trouble the Countrey and I hope to see thee at the next Sessions indicted for Barratry or for sheep-stealing as George Bland was at the last Sessions for Bland was indicted the last Sessions for sheep-stealing And it was held by the whole Court that those Words would not bear an Action the Plaintiff layed the Words to be spoken to one Jo. Eagle and the Declaration was held naught and insufficient because it was not averred that the Plaintiff was not indicted at the Sessions BRadshaw versus Walker Hill 16. Jac. rotulo Action upon the case brought for these words Videlicet Thou art a filching Fellow and didst filch from A. B. 4. l. And Judgement that the Plaintiff should take nothing by his Writ for it shall not be intended that he stole the money ADams versus Fleming Hill 16. Jac. rotulo 890. Action of the case brought for these words Videlicet He hath forsworn himself before the Councel of the Marches meaning the Councel of the Marches of Wales in the Suit I had against him there and I will sue him for Perjury there And after Verdict for the Plaintiff moved in Arrest of Judgement that the words were not actionable for their uncertainty because the Court could not take notice that they had authority to hold plea in matters of record Judgement for the Plaintiff for these words Thou art a false forsworn Knave for thou didst take a false Oath before a Judge of Assise to hang a man GOre versus Colthorpe Trin. 5. Jac. rotulo The Declaration was in consideration that the Plaintiff would give credit to E. C. then servant to the Defendant for any thing the said E. should deal for to the use of the Defendant with the Plaintiff promised that he would see the Plaintiff contented that which the said E. should deal for with the Plaintiff for the use of the Defendant any way when the said Defendant thereof after it should become due should be requested and a special Verdict by which it was found that the Defendant promised to see the Plaintiff contented that which the above named E. C. should deal with the Plaintiff for the use of the said Defendant any way The Judgement of the Court was that the Verdict did not maintain the Declaration because for collaterall matters which are not Duties a Request is material and are not like a Duty as for Debt which is due and no Day of payment expressed that shall be alleadged to be when he shall be thereunto requested generally For if I sell my Horse for ten pounds and no Day of payment that shall be alleadged in the Count Cum inde requisitus esset And one case of Peters was cited which was
c. and that the Plaintif was sued there by J. S. and that hee was summoned and upon a nihill returned a capias issued according to the Custome c. And that he being an Officer there did arrest and the Court ruled him to plead the Custome particularly for holding the Court and to prescribe c. And here it is shewn that the Maior is a Justice of Peace And it doth not appear whether he did it as a Justice of Peace or Maior as 14. H. 7 8. A Justice of Peace cannot command his servant to arrest one without a Warrant in writing in his absence And Popham chiefe Justice said That although the Judges knew the Authority of the Maior by which they arrested men yet because it did not appear to them judicially as Judges it must be pleaded And a Justice of Peace cannot command his servant to arrest one if not in his presence which was granted And Fennor Justice said that the servant is not an Officer to the Maior as he is a Justice of Peace but the Constable and Walker also added that the Plea was that the Maior commanded to imprison him presently without shewing any cause which was held naught for the maior ought to temper his Authority according to Law For the Judges cannot imprison without shewing cause but them and the Maior both may command an Officer to arrest a man without shewing the cause for else before he shall be examined he may invent and frame an excuse and the accessories will flye away And Williams Justice finds that it was incertain for the Plaintif by what authority he commanded it whether as Maior or Justice of Peace and his power as a Justice of Peace the Judges knew by common Law but his power as a Maior they knew not if it be not shewed by pleading and Judgement HVggins versus Butcher Trin. 4. Jac. The Plaintif declared that the Defendant such a day did assault and beat his Wife of which she dyed such a day following to his damage 100 l. And Serjeant Foster moved that the Declaration was not good because it was brought by the Plaintiff for a Battery done upon his Wife And this being a personall wrong done unto the woman is gone by her death And if the woman had been in life hee could not have brought it alone but the woman must have joyned in the Action for the damages must be given for the wrong offered to the body of the woman which was agreed And Tanfield said that if one beat the servant of J. S. so that he die of that beating the Master shall not have an Action against the other for the battery and loss of service because the servant dying of the extreamity of the beating it is now become an offence against the Crown and turned into Felony and this hath drowned the particular offence and prevails over the wrong done to the Mr. before And his action by that is gone which Fennor and Yelverton agreed to BRown versus Crowley Pasch 5. Jac. Action of Trespass brought against Croyley for wounding the Plaintif upon the hinder part of the left legge being rendred in Latin super posteriorem partem levis libaei and the Jury found for the Plaintiff And Harris moved in Arrest of Judgment for hee said that these words levis libaei made the Declaration vitious for the incertainty for he said that levis signified light and it was an improper word for left and that judgment ought to be respited for the incertainty And Yelverton argued that judgment ought to be given for the Plaintiff for he said the Declaration was not vitious for if the Plaintiff had declared generally that he had wounded broken or evill intreated him and had omitted those other words it had been sufficient and then the adding of those words which were not materiall but for damages did not make the Declaration vitious and he said that levus leva levum was Latin for left And whereas he hath said that he strook him super posteriorem partem levis libaei where it should have been levis libaei it was but false Latin and the Declaration shall not be made naught for false Latin And Popham said that hee shewing upon which part of the body the wound was were laid only to incense damages for the Declaration had been sufficient though they had been omitted And Justice Fennor agreed to Popham and he said it had been judged that where a man brought an Action against another for calling him strong Theife and the Jury only found that he called him Theife but not strong Theif yet the Plaintiff recovered for this word strong was to no other purpose then to increase dammages and Judgement was given for the Plaintif VIccars versus Wharton Pasch 5. Jac. Viccars brought an action of false imprisonment against Wharton and others and shews that he was imprisoned two dayes and two nights without meat or drink The Defendants come and shew that King Edward the 1. by his Letters Patents did incorporate one Village in Nottingham-shire with Bailiffs and Burgesses and that the King did ordain and make those Burgesses Justices of the Peace there and that the Defendant was Bailiâ—â— and a Justice of Peace there and that the Plaintiff did speak divers opprobrious and contumelious words of the Defendant by reason whereof they imprisoned him And shews further that the Bailiffs have used from the time of the making their Patent to imprison the disturbers of the Peace and it was held a naughty plea for a custome could not be shewn in such a manner And Tanfield held in this case that a man could not prescribe to be a Justice of peace but Justice Williams held he might prescribe to be a conservator of the Peace And Tanfield held that the King might grant that all the Burgesses and their Heires should be Burgesses which Justice Williams denyed HAll versus White Pasch 5. Jac. An action of Trespass brought against the Defendant for impounding the Plaintiffs Cattel the Defendant justifies for Common And upon that they were at issue in Derby-shire and the Jurors being sworn the Bailiff found one Bagshaw one of the Jurors rending of a Letter concerning the said cause and shewed it to the Judg and a verdict given by the Jury And this matter moved in the then Kings Bench to quash the verdict but denyed by the whole Court because the Letter and the Cause was not certified by the Postea and made parcell of it for otherwise the examination of that at the Barre after the verdict shall never quash it And so it was adjudged between Vicary and Farthing 39. Eliz. where a Church Book was given in Evidence of which you shall never have remedy except it be entred and made parcell of the Record BVtler versus Duckmonton Trin. 5 Jacobi In Trespasse upon a speciall Verdict the Case was that no demised Land to a woman if she should live sole and unmarried
concurrent or immediate Jurisdiction to which appeal may be made and that the Arch-Bishop hath ordinary Jurisdiction in all the diocesse of his Province and this is the cause that he may visit but this Jurisdiction is bound and tied up to the Ordinary and when he will leave that at large then the Arch-Bishop may proceed as he is Arch-Bishop and the cause of request need not to be contained in the Instrument for when the power which was bound up is unbound and at large then he may proceed Doctor Talbot that the request is referred to three to the Bishop Dean and Arch-Deacon And the persons to whom the request is to be made are three The Arch-Bishop two Bishops three or superiour Judg and the Bishop and his Commissary are all one and request made by the Commissary shall be as good as request made by the Bishop himselfe Also that the President may transmit and make request to the Emperour as it appeares in the Booke of Justinian of the Lawes 2. Book So Baldus in reference made of inferiour Magistrates to Superiour doth defend that the Arch-Bishop is Judge of the whole Province yet is bound So Speculata in his Title of Relations of which relation shall be made So in the Councell of Antioche that the Metropolitan is mediate Judge in the first part of the Canon and for that relation shall be made to him Passonilis de officio c. disputes If the Arch-Bishop may have consistory in the Diocess of the Ordinary Hostiensis that the Ordinary may transmit a cause though the parties be unwilling Panormitan in capite pastoralis 8. Question 6. decretalls of the Canon Law Philippus Francus upon the decretalls of the Canon Law That the Arch-bishop cannot meddle in the Diocess of any Ordinary without his assent Dominicans upon the same Decretall And so he concludes that when the Ordinary makes a request to the Arch-bishop hee may meddle without the assent of the parties and the stranger when the parties assent And they agreed that generally the Arch-Deacon ought to transfer to the Bishop and so the Bishop to the Arch-bishop But they agreed also that here in England it was prescription and usage that every Arch-Deacon hath used to appeale immediately to the Arch-Bishop and so ought the Request within this statute to be made accordingly Also they agreed that if a man inhabite in one Diocess he hath cause to sue for Tithes in the same Diocess in which he inhabits and in another Diocess there he ought to sue in the Diocess where the Defendant did inhabite and not where the Tithes are payable nor where the Plaintiff inhabits and the Principall case was ordered accordingly Michaelmas 1611. 9. Jacobi in the Common Bench. Enby versus Walcott THe Defendant was sued before the Ordinary in the County of Lincoln for defamation And the Suit was begun before the last generall pardon ex officio and the Costs taxed after the time limited by the pardon and Prâ—hibition was granted in so much that all things promoted ex officio are discharged by the pardon and in so much as the principall was pardoned the Costs being but as accessory shall be also pardoned notwithstanding that they were taxed after the pardon Powis against Bowen UPon consideration had of Instructions given to the President and Councell of Wales it was resolved by all the Justices of this Court that the Councell there ought not to proceed upon English Bill which conteins title But the forme of that ought to be onely that the Plaintiff was in possession for three years and that the Defendants which ought to be alwayes more then one riotously and with force have entred upon him and so ought to be restored to his possession And in so much that the Bill containes Title in this case and that the Defendants have entered upon him and disseised him in forme of Assise and doth not say riotously and with force Prohibition was granted Butler against Thayer THe Lord Admirall granted a Commission under the Seale of the Admirall Court to Thayer for measuring of all the Corne which shall be transported from one Town or place to another within the Creeks which are within the first Bridges and to have so much for every bushell measuring and granted that if any resisted to arrest them and commit them till they had found sureties to appeare in the Admirall Court And at Milton and Raineham in Kent Thayer endevoured to put his Commission in execution and Butler resisted him and was for that arrested and sued in the Admirall Court and for stay of that prayed Prohibition it was granted in so much that the Admirall hath not power to meddle with the first Bridges for civill causes but only for Maymes and death of men but for causes made upon the high Sea where the Marriners have the better knowledg in the Common Law he cannot try that See the time of Edw. 1. Avowry 192. 8. Ed. 2. 45. Ed. 3. Stamford 51. 7. R. 2. Statham Trespass Sir John Watts CErtain goods of a Subjects of the King of Spains were forfeited upon the high Sea and after were brought here into England there sold to Sir John Wats and the goods were attached in the hands of Sir John Watts by Process out of the Admiralty and there a libell was exhibited against the goods remaining in the hands of Sir John Watts and Sir John Watts was not made party to the Suit And Sir John Watts prayed a Prohibition in so much that-they bought them in open Market And by this Suit in the Admirall Court the property will be drawn in question there where the Suite was prosecuted in the name of Awlenso de Valasco the Spanish Ambassador Legier here And Prohibition was granted Michael 1611. 9. Jacobi in the Common Bench. Jennings against Audley PRohibition was prayed to the Admirall and the Libell shewed to the Court which contained the Contract was made in the straits of Mallico within the Jurisdiction of the Admiralty and doth not say upon the deep Sea And it was agreed that in all eases where the Defendant admits the Jurisdiction of the Admirall Court by pleading there Prohibition shall not be granted if it do not appear by the Lybell that the act was made out of their Jurisdiction and that though that Sentence was given yet if that appears within the Libell Prohibition shall be granted Note that a man was sued before the Ordinary in the Diocesse of Norwich for infamous words and after sentence there given he appealed to the Arches and the first sentence being there affirmed he appealed to the Delegates and before that the proceedings were transmitted Prohibition was granted by this Court in so much that the offence was pardoned by generall pardon But this notwithstanding the Register transmitted the proceedings And after for his fees due for that hee exhibited a Bill in the Court of Requests and Prohibition was prayed in this Court for to stay his
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
wine or peices of Cloath and one Tun of Wine to one man or a peice of Cloath to one man and another to another man till he hath sold all that this was not retailing but they cannot sell by the yard or keep a shop but it was also agreed that some goods a man might sell as well in their Market if he do not keep a shop here without any offence and it was objected that this By-Law was not good for that it was for private good and also the penalty which was to be inflicted was too great For first the Maior Aldermen and Citizens make the Law the suit for the penalty ought to be before the Mayor and the Maior and Citizens ought to have part of the Penalty so that the Mayor shall be Judg in his own cause which also was one of the Reasons of the Judgment in the Chamberlain of Londons case 5. Coke for that that the penalty was so small that is a penny for every cloth which shall be sold in Blackwell hall and this was for publick good for here shall be search if it were good and merchantable but it was agreed by all that every Town may make a By-Law which is pro bono publico without any prescription or custome and this shall be good and being made by the greater part shall bind the residue but if it be for private good as for the ordering of the common or such like shall not be good to bind any man without his assent without speciall custome according to the Judgements in the Chamberlaine of Londons Case and Clarkes case 5. of Coke in his cases of By-Lawes But Coke is cleer that the remedy that is the By-Law was good and agreeing to the custome in every point and that the penalty was fit and good and for quantity and quality and that to the quantity he agreed that they could not inflict confiscation of Goods nor Imprisonment but may inflict pecuniary punishment as it appeares by Clarkes Case and the Action may be brought for that so that for the quality it was good And so as to the quantity which was Secundum quantitatem dilicti for he conceived it was a greater offence to hold a private shop then publick for this is not in view nor subject to search reformation as wel as if it were publick and for an old Act of Common Councel he which keeps a publick shop shall forfeit ten shillings and clam delinquens punietur magis quam palam now the ounce of silver is increased in value for it is worth five shillings four pence and then it was worth but three shillings four pence and so for quantity and quality Et congruum ratione causarum And it seems to him that it is not Bona fide that a Forrainer should hold a private shop but Dissentaneum for London is a Market overt every day in the Weeke but Sunday as it appears by 11 H. 6. 19. And in Dunstable the Prior brought an Action against a Butcher for that that Dunstable was an ancient Town and that this was a market overt two dayes in the Week and the Defendant sold flesh in an inward roome the Defendant pleads custome to warrant that and adjudged that it was not good for the usage of Trade in such Corners is not Bonae fidei consonant and after he pleaded that he sold the flesh in an open shop in the Market and this was allowed to be a good Plea and if it be so in Dunstable a fortiori it shall be so in London and for the same reason also it shall not be Rationi Consentaneum to hold such inward shops and also it is for Communi utilitate that is of the Citizens of the King and of all others that Forrainers shall not hold any shops in London for it appears by the return that Forrainers shall not be subject to Scot and Lot in London and shall not be Officers which are matters of great charge so that if it shall be so they should be preferred before Free men and without question it is discomodious for the Citizens that any Forrainer should use any Trade here and it would be a distruction to Citizens that a Forrainer should not be subject to their charges and yet should take benefit of the Trade within the City Secondly And for the Benefit of others that strangers should not be received to use any Trade within the City for this is the cause of Depopulation depradation and distruction in all other Townes and Burroughs in England which is prejudice to all others Thirdly it is prejudiciall to the King that such a company of Inhabitants should be resident in London which is Camera Regis for this is the cause of Iufection of the Aire and sicknesse so that the King and all the State is prejudiced by it but the sole doubt which was conceived by Coke was for that that it doth not appear by the return that the Defendant had used the Trade of Tallow Chandlor nor sold any Candles but only that he kept a shop and used the mistery of making Candles but if the return had been that he used the Trade of Tallow Chandlor this had been good for that implies Tantamount for that had been that he had sold for Trade is in Tradendo which is to deliver over and the Intent of the act is not that hee shall be punished for making of Candles if hee do not sell them for the sale is the wrong and so the Servant of every Noble man or other which makes Candles or other thing for his Master or for his own use should be within the penalty of the Act and with this agreed Foster and Daniel and for this cause only it was resolved that he should be delivered and not remanded Hillary 7. Jacobi In the Common Bench. Cholke against Peter THE Case was this The Lord Rich being seised of the Chase of Hatfeild granted and sold to Sir Thomas Barrington Knight and his Heires all the Wood growing and to grow upon a part of that and excepted the soyl and further that he might inclose every sixteen Acres of that and this to hold in severall for the Prservation of the spring according to other Statutes of the Realm and this Grant was confirmed by a private Act of Parliament and that the Grantee might hold it in severall without suit of the Kings Officers with a saving of the right of all strangers and a Commoner put in his Beasts to take his common in one parcell of that which was inclosed against whom the Grantee brought an Action of Trespass and in this the only question was if this Grantee of the Trees which had not any Interest in the Soyl might inclose against a Commoner by the Statute of 22. Ed. 4. chap. 7. was the question for it was agreed that if a man grant Trees growing and to grow to one and his Heires and except the Soyl the Grantee hath Fee-simple in the Trees
Office by Deputy without special words of Deputation in the Patent for he conceived that it is not meerly an Office of trust for he hath not the keeping of any Records for the Courts of which he was steward were not Courts of Record and yet that all the Books are that ancient grants of Office of stewardship contain that the Patentee may exrecise Per se vel per sufficientem deputatum suum though they are not of Courts in which the steward is Judge but the suitors but if a Grant be of such an Office of Inheritance then there needs words of Deputatum for here it is apparent that there was not special trust reposed in the Patentee And he also agreed that if it be not an Office of profit the Grantor may enter and out the Patentee but the fee shal remain as it appears by the 31 H. 8. Brookes Novell Case and 18 Ed 4. And it was not the intent of the Queen that the Earl of Rutland should execute the Office in person for that should be an undervaluing of him the which he sayd was proved by Sir Robert VVrothes Case in the Commentaries where an Officer to the Prince was discharged of his attendance by alteration of quality of the Prince and making of him King and yet the Fee remained And to the second it seems that the patent hath expresse words of Deputation And the third Grant which hath a reference to the Grant precedent and al the words being put together make a perfect Grant and this such construction hath been alwaies made of Grants of the King as it appears by Sir John Mullyns Case 6 Coke 56. And Justice VVindhams case 5 Coke 7. a. So if the King makes a Lease of a Mannor except a Grove next to the Mannor this shal be intended next to the Mannor House for otherwise it shal be out of the Mannor and so the exeption voyde but Coke and Foster doubted of that And to the third point that the Action was maintainable Vi armis for when the Deputy of the Earl of Rutland proclaimed the Court as Deputy of the Earle of Rutland and these Defendants proclaimed that as stewards of the Earl of Shrewsbury and after adjourned that and after held all the Courts and received the profits it seemed to him that for this outing and disturbance which is disseisin action upon the case lies Quare vi armis as wel as in the Book of Entries 15. two men had Warrens adjoyning and one of them puts Cats and other vermine into the Warren of the other to destroy it and the Action of trespasse Vi et armis lyes and so for menace action of trespas Vi armis lies as it appears by 3 H. 4. and this disturbance is sufficient to maintain an Assise and upon that he concluded that the Plaintiff in the Action ought to recover and to have Judgment And Harris the younger Serjeant argued that the Grant is not good for default of certainty as to this Grant of Stewarship for the Grant is of the Office of Stewardship of the Mannor of Mansfeild and doth not shew where the Mannor is nor in what County and it appears and is put for a Rule by Hussey cheife Justice in the 25. of H. 7. 60. b. That when a man wil have advantage of Letters Patents of the King it behooveth that they extend certainly to things of which he wil have advantage see 2. R. 3. 7. a. By Hussey 44. Ed. 3. 17. 5 Ed. 4. Garters Case 17 Ed. 3. 15. and Doddingtons Case which is Hill and Pext 2 Coke 1. 31. b. If the Town be misnamed it is good if there be another certainty but if it be not named at all otherwise it is And to the Point moved by Hutton he concived that this Office of Stewardship could not be exercised by a Deputy as it appears by Littleton in his Chapter of Estates upon condition where he saith that there are Estates upon condition in Law of which Stewardship is one fol. 89. Sect. 379. That cannot make Deputy without speciall Grants and with this agreed Sir Henry Nevills Case Com. 379. and Long 5. Ed. 4. 26. b. and by 21 E. 4. 20. and Sir Henry Nevills Case before he could not grant over his office but if he do not attend to the Execution of that it is forfeiture 11 Ed. 4. so if he wants skill 29 H. 6. 42. Per totam curiam He conceived that the Law doth not make any difference between the person of an Earl and another to the executing of this Office and that the words of the Patent do not contain words of deputation for in the Grant the words are Habendum Officium predictum breifly written Cum omnibus vadis feodis eidem Officio sue ratione ejusdem c. The which last words are expository of the first that is that it shal be intended that the Office is contained in the last Grant and shal not be referred to a Grant precedent in which the Stewardship is contained and also he conceived that this Action upon the case doth not ly Quare vi armis as it appears by Fitzherberts Naturabrevium 86. H. Where it is sayd that in trespass upon the case these words Vi armis are contained in the Writ shal be sufficient cause to abate the Writ see 11 Assise 25. He which councels to make Disseisin shal not be a Disseisor with force for he ought to do some manual Act either to the person or to the possession see 41 Ed. 4. 24. a. and 44. Ed. 3. 20. b. And so he concluded that this Action is not maintainable and that Judgment ought to be given for the Defendant for the causes aforesayd This Case was argued again by Nicholls Serjeant for the Plaintiff and by Dodridge the Kings Serjeant for the Defendants to the same intent and it was urged by Dodridge that the Patent containes three several expresse Grants which are distinct Grants in themselves as there be three distinct severall Patents though they have but one Parchment and one Seale and if the King grant the Office of parkship of two parks by one self same Grant if the Patentee be disseised of them he may have several Assises though that it be but one self-same grant And he agreed that the words officium predictum in the 3. grant shall be intended officium predictum and so supply the defect in the second grant if it were not limitation of the estate in the second grant but for that that the second grant was perfect in it self there need not of necessity any such construction and that these words shall be referred to the last words appeares by the last words of the habendum that is cum vadis feodis eidem officio aut ratione ejusdem officij and these Relatives are exposition accordingly And to the objection of the clause of Assistance in the end of the Patent he answered that if the grant were ill