pursue their claim by entry or action within five years next after the Proclamations and saving such Action Right Title Claim and Interest as first Shall grow remain descend or come after the Fine and proclamations by force of any Gift in Tail or by any other course and matter had and made before the said Fine levied so as they pursue within five years c. By which it appears that nothing is saved to the strangers but rights actions and interests arising by force of any cause or matter before the Fine and therefore nothing is barred by the Statute but former rights for what ever right is barred as to the Privies is saved to the strangers so as they pursue their claim within c. Sir Richard Shuttleworths Case between Barton and Lever 37 Eliz. Tenant in Tail levied an erronious Fine with Proclamations and then as Vouchee did suffer an erronious Recovery and died the Issue brought a writ of Error to reverse the Fine the Defendant pleaded the recovery afterwards and the Plaintiff to maintain the writ did alledge a default in the Recovery whereby he conceived the same to be void but resolved that it was but voidable by a writ of Error and therefore so long as it was in force the Issue was barred to reverse the Fine And therefore it was agreed there that the Issue ought first to reverse the Recovery by writ of Error and then he may reverse the Fine And so in our Case if the Plaintiffs should be barred in the writ of Error by the Fine they shall be without remedy although that the Fine be erroneous as I conceive it to be for if they bring a writ of Error to reverse the Fine first the Recovery although it be erroneous will be a clear Bar to them as it is adjudged in the said Case of Burton and Lever 7 H. 4. 40. a. One brought a writ of Error to reverse an Outlawry the Attorney said he was outlawed at the Suit of another Hulls said there that he could not be received for when one is to adnull an Outlawry he shall not be disabled by another Outlawry although he be twenty â—imes outlawed for then it will follow that there shall be delay infinite 26 Ed. 3. 66. Tenant in ancient Demesne levies a Fine at the Common Law and after does levy another and the Queen being seignioresse of the Mannor did bring a Writ of deceit to reverse one of them she shal not be barred by the other especially by the first to reverse the second And as to the Warranty 2. Matter of the Bar. I conceive that it is no Bar for many reasons 1. Because Warranties do bind only Rights and Actions which are in esse at the time of the warranty made and not Rights and Actions which do accrue after the Warranty created but this Writ of Error is given to the Plaintiffs in respect of the erroneous Recovery which wâ—s suffered after the creation of the warranty and therefore the warranty is no Bar to the Plaintiffs to have this writ of Error 30 H. 8. Dyer 42. B. All the Iustices did agree that when a man does bind him and his Heirs to warranty they are not bound to warrant new Titles of any Actions accrued since the warranty but only such Actions as are in esse at the time of the warranty made 12 Assise 41. The Tenant in a Praecipe quod reddat made a Feoffment hanging the writ and after the Demandant had recovered by erroneous Iudgment notwithstanding that the Feoffment had excluded the Tenant from his Right to the Land yet this shall not exclude him from his writ of Error which is accrued to him since the Iudgment given after the Feoffment Vide 18 19 Eliz Dyer 353. But it may be objected that this warranty shall bind the Right of the Plaintiffs to the Land for although the Recovery be reversed Object yet the Plaintiffs shall be put to their Formedon to recover this Land in which they shall be bâ—rred by this warranty and so it shall be in vaine for them to reverse the recovery for by the warranty they shall be barred to have the Land I answer That notwithstanding the Collaterall warranty Answer yet a Right doth remain in the Plaintiffs which is bound by the warranty which Right is taken away from the Plaintiffs by this Recovery by which the Law would have given to them a Remedy which is by writ of Error to be restored to their Right for a collaterall warranty doth not extinguish the right of him who is bound by the warranty but only does bind the Right for the time that the warranty remains undefeated and this is proved by many Authorities 34 Ed. 3. Droit 29. If the Tenant in a writ of Right hath collaterall warranty of the Ancestor of the Demandant he ought to plead it and not to conclude upon the Right for if he conclude upon the Right it shall be found against him because the warranty doth not give or extinguish the Right but only binds it 43 Assise 44. A collaterall warranty may be defeated by a Deed of Defeasance made after the creation of the warranty by which it appears that the Right is not extinguished for if so it could not be revived by the Defeasance and with this agrees 43 Ed. 3. 20. Earle of Staffords Case 19 H. 6 59. B. Fortescue A collaterall warranty does not give Right for if Land be given to one and the Heirs Males of his body and he hath two Sons and doth alien and the collaterall Ancestor to the Son doth release with warranty to the Alinee and dies and the Donee dies now is the eldest Son barred but if he die without Issue Male leaving Issue a Daughter the younger Son shall not be barred by the warranty 24 H. 8. B. Formedon 18. If Tenant in Tail hath two Sons by severall venters and dies and the Ancestor collaterall of the elder Son doth release with warranty and dies without Issue and the elder Son dies without Issue the younger Son shall recover by a Formedon because he is not Heir to the warranty And Littleton 160. B. Tenant in Taile hath three Sons and discontinues the second Son Releases to the Discontinuee with warranty the Tenant in Taile and the second Son dies now is the eldest Son barred because the warranty is collaterall to him but if he die without Issue the younger may have a Formedon and shall not be barred by the warranty because that the warranty as to him is lineall and to this purpose is the 8. of Rich. 2. Warranties 101. By which Book it does appear that the Estate-tail is not extinct by the warranty for if it could be so it can never be revived again This Warranty is executed and determined for it was made to the Conusees against whom the Writ of Entry whereupon this Recovery was had was brought and they did vouch to Warranty Thomas Lea and Katherine his wife who made
But it may be objected That there is no place mentioned where the payment or acceptance was Answer I answer that it is not material for it is not issuable but onely evidence to prove the fraud which is the substance of the Plea and that is proved by the said Case of Turner And 42 Ed. 3. 14. Conspiracy shall be brought where it was done and not where the Indictment was And 44 Ed. 3. 31. Attachment upon a Prohibition lies where the summons is although the Plea be held in another County 1 H. 7. 15. B. Payment with Acquittance pleaded in an Action of Debt upon a Bond is not double because that acquittance onely is issuable and the payment is but evidence Then the Recognizance is no cause of the retaining the 100 l. as in Cook R. 5. Harrisons Case Green brought an Action of Debt upon a Bond of 40 l. against H. Administrator of Thomas Sydney the Defendant pleaded that the Intestate was bound in a Statute besides which he had no goods c. The Plaintiff replyed that there was an Indenture of Defeasance for performance of Covenants which hitherto were performed whereupon the Defendant demurred and it was adjudged against him for a Debt upon a Bond shall be payd before a Statute to perform Covenants when none of them then were nor perhaps ever shall be broken but are future and contingent things and therefore such possibilities which peradventure shall never happen shall not bar present and due Debts upon a Bond. And although the Condition of the Recognizance be to pay mony yet is it to be payd to a stranger and therefore it is not any Debt but the Debt is onely by the Recognizance Also it is not to be payd but upon a contingency to wit if the Infant comes to full age but if he dye before it shall never be payd 36 H. 8. Dyer 59. One devised 20 l. to his Daughter to be payd at her marriage or 21 years of age and she dyed before marriage yet it shall be payd 7 Ed. 4. 3. and 18. 36 H. 6. 9. Cook 9 Rep. fol. 108. In an Action of Debt against an Administratrix who pleaded Statutes and further that she had not sufficient c. The Plaintiff replyed that for one of the Statutes a lesser sum was accepted in satisfaction and as to the other that it was for performance of Covenants and that none was broken and the Defendant demurred and adjudged for the Plaintiff and that the general averment of payment and acceptance and that the Statute was for performance of Covenants was good because the Plaintiff was a stranger thereto And this case was argued again by me for the Plaintiff and by Crook for the Defendant Saturday the 24 of May Pasch 15 Jacob. at which day Mountague Doderidge and Haughton did agree that for the first matter Iudgment ought to be given for the Plaintiff but as to the last Mountague held for the Defendant but the other two on the contrary And Doderidge and Haughton agreed that the Plea of the Defendant was naught because he said that a Condition was annexed to the Recognizance and did not say that it was upon condition and Mountague replyed not Vide Com. Browning and Beestons Case 21 Ed. 4. 49. 28 H. 6. 3. Hillar 12 Jacob. Robinson against Greves Rot. 744. IN an Action of Trespass for that the Defendant the 6 of May 12 Jac. the House and several Closes of the Plaintiff did break and enter c. ad damnum c. The Defendant pleaded Not guilty The Iury found that the said Tenements were Copyhold parcel of the Mannor of Ecclesfield grantable time out of minde by the Lord or his Steward by Copy in Fee in Tayl or for life or years according to the Will of the Lord and according to the Custom of the Mannor And that before the Trespass Thomas Shercliff was seised in fee at the will of the Lord according to the custom c. And that the first of January 14 Elizab. by the hands of Nicolas Shercliff and Thomas Jepson two of the Customary Tenants Gilbert Earl of Shrewsbury then and yet being Lord of the said Mannor out of Court and according to the Custom of the said Mannor did surrender to the use of Nicolas Stanniland and his Heirs which Surrender at the next Court 11 Janua 40 Elizab. by the hands of the said N. S. and Tho. J. was delivered into the said Court and there by the homage of the said Court was presented and by William West then Steward was accepted and entered in the Rolls of the said Court and that a Copy of the Surrender under the hand of the said Steward was delivered to the said Nicolas Stanniland which Copy was found verbatim viz. Ad hanc curiam compertum est per homagium quod Tho. S. sursum reddidit ad usum N. St. haeredibus suis but they said that the said N. St. was no otherwise admitted By force of which the said Nicolas entered and the 6 Decemb. 1 Jac. out of Court by the hands of Thomas Jepson and Richard Shercliff did surrender according to the custom of the Mannor to the use of the said N. St. for life the remainder to William Stanniland and his Heirs which Surrender at the Court of the Mannor held the 17 May 14 Jac. was delivered into Court by the hands of the said Thomas Jepson and Robert Shercliff and was presented by the homage at the said Court and was there accepted and entered in the Roll by the Sheriff and that a Copy of the said Surrender under the hand of the Steward was delivered to the said N. St. which Copy was found verbatim in the said words with the former and found that there was no other admittance The sixth of November 2 Jacob. Nicolas St. dyed Thomas Shercliff entered at the Court 6 Maii 12 Jacob. did surrender to the use of the Plaintiff for ten years and payd his Fine and was admitted c. whereby the Plaintiff did enter upon whom the Defendant by the commandment of William Stanniland did enter and made the Trespass c. And so prayed the Opinion of the Court. And I conceive that the Plaintiff ought to have Iudgment And in this case are two matters considerable First if this Presentment of the Lord and the entry into the Roll and the delivery of a Copy entred by the Steward be any admittance or not And I conceive that it is no admittance For an admittance is a ceremony requisite to make a Copyhold Estate and is so necessary that before admittance he to whose use the Surrender is made hath no Estate as in Bracton 2. cap. 8. Si ipse ad alium transferre voluerit prius illud restituet domino vel servienti si dominus praesens non fuerit de manibus illorum fiat translatio ad alium c. And before admittance this is no perfect assurance but onely begins then as in Peryams Case Cook 5
of five Steers and that certain Malefactors unknown to him did steal them from him at Broughton in the County of Bucks and that the 22 of Novemb. 13 Jacob. the Defendant pursued them to London and there did search for the Steers and found them in the possession of the Plaintiff and did require the Plaintiff to shew them unto him and how they came into his possession and because that the Plaintiff did deny to deliver them unto him and did refuse to permit him to see them and to shew how he came by them and that the Plaintiff gave him such incertain answers that the Defendant did suspect the Plaintiff had committed the Felony and the Defendant for better examination of the promisses and restitution of the said Cattel did inform the said Sir Thomas Bennet of the premisses and did procure a Warrant from him to bring the Plaintiff before him to be examined concerning the said Cattel whereupon the Plaintiff was brought before him and examined and because he could not make it appear how he came by them and for that he gave very uncertain answers and for that the said Sir Thomas did suspect him he did therefore binde him in a Recognizance of 50 l. to appear at the next Goal delivery and did binde the Defendant in a Recognizance of 20 l. to prosecute whereupon the 29 Novemb. 13 Jacob. the Defendant did exhibit a Bill of Indictment and did give evidence to the Iury that the Cattel were stoln from him and that he found them in the Plaintiffs possession and that he denyed the Defendant the view of them or to shew how they came to his hands whereupon the Iury found the Bill and thereupon the Plaintiff did appear at the next Goal-delivery the first Octob. 13 Jacob. and was there imprisoned until he was legally acquited which is the same imprisonment for Felony and procurement to be indicted and detainment in prison whereof the Plaintiff complains The Plaintiff confessed the Felony Replication but says that the 23 Octob. 13 Jacob. Thomas Burley was possessed of the said five Steers at Barnet in the County of Hertford and did then and there sell the said Cattel in open Market to the Plaintiff for 17 l. being a Butcher and that the said sale was entered in the Toll-book and the Toll payd wherefore the Plaintiff was possest of them and did drive them to his house in London the 24 Octob. 13 Jacob. and that the 21 Novemb. 13 Jac. he killed four of the said Cattel and then the said 22 of November the Defendant came to his house to search for the said Cattel and the Plaintiff did acknowledg to him that he had the said Cattel and that he had killed four of them and that he had bought them as aforesaid and did then also shew unto him the Steer that was then living and that the Defendant had sufficient notice that the Plaintiff had bought the Cattel in the Market and that although the Defendant did know that the Plaintiff had bought them and was not guilty of the Felony yet the Defendant out of malice and against his knowledg did charge the Plaintiff with Felony c. as he hath declared absque hoc that the Plaintiff did refuse to permit the Defendant habere visum of the said five Steers or to shew how he came by them Whereupon the Defendant demurred in Law Demur and shewed that the matter of Inducement to the Travers was insufficient and that the Travers was insufficient and the matter not traversable And I conceive that the Plaintiff ought to have Iudgment For in the 7 Ed. 4.20 In a false Imprisonment The Defendant said that before the imprisonment one B was killed by certain persons in whose company the Plaintiff was and the report of the County was that the Plaintiff was party to the Felony whereupon he arrested the Plaintiff for suspicion and did commit him to the Sheriff And Bryan did Travers the Indictment without that that the Plaintiff was in their company and without that that the report was so c. And Nidkam said there that issue could not be taken upon the report but upon the matter in fact For if men say in the Country that I am a Thief that is no cause to arrest me but matter in fact ought to be shewed which is Traversable whereupon issue was taken upon the first matter onely and in the ninth of Ed. 4. it is holden that a man ought to shew some matter in fact to prove that the Plaintiff is suspected And 11 Ed. 4. 46. in a false Imprisonment The Defendant who justifies upon a false imprisonment for Felony ought to shew some matter in fact to induce his suspicion or that his goods were in his possession of which the Country may take notice And in the 17 Ed. 4. 5. in a false imprisonment the Defendant justified because that A. and B. did rob another and did go to the house of the Plaintiff whereupon the Constable did suspect him and did require the Defendant to assist him in arresting him c. and holden there that they ought to surmise some cause of suspicion or otherwise the plea was not good 7 H. 35. Suspicion cannot be tryed because it is but the imagination of a man which lies in his own conceit 5 H. 7. 4. In a false Imprisonment the Defendant justified because that A. was poysoned and the common voyce and fame was that it was done by the Plaintiff whereupon he was taken and there it was argued if this were sufficient cause some said that he ought to shew some special cause but it was agreed in conclusion that it was but all agreeo that suspicion only is not enough without alledging cause of suspicion and says 2 H. 7. 16. and 7 Elizab. Dyer 236. In an action on the Case for calling one Thief the Defendant justified for common voyce and fame and adjudged insufficient but this with suspicion had been sufficient cause to arrest one and carry him to the Goal And Michaelm 38 and 39 Elizab. In the Common-Pleas in an Action on the Case by Damport against Symson for giving a false testimony adjudged that the intent of the swearers cannot be put in issue or tryed 2 H. 4. 12. B. 46 Ed. 3. 4. 2 H. 7. 3. In a Trespass the Defendant justified that he was robbed in the County of B. and did suspect the Plaintiff in the County of Stafford The Plaintiff pleaded De son tort demesne c. and it was there agreed that all the case was in issue And Tow said that it should be tryed by both Counties if they could joyn but he doubted if they could joyn but in the 16 of H. 7. 3. B. this case is reported to be adjudged that if the Counties could not joyn it was no plea because it ought to be tryed by both And so de son tort demesne shall be full of multiplicity and therefore it is no plea as in Crogates Case
portion not payd then if the Defendant shall pay to the said Susan the said 400 l. within six weeks after the said first of May to such person to whom the said Elizabeth by the said Will ought to pay the same and shall procure good and sufficient discharge to the said Elizabeth of the said sum of and from all persons to whom the same shall be due that then all the said Obligations shall be voyd and delivered up to the Defendant cancelled and made voyd And the said Elizabeth did covenant that until manifest default was made in the premisses and the said Elizabeth shall be thereof damnified and upon reasonable request no satisfaction shall be given to her she will not take any advantage by reason of the said Obligation nor will prosecute any Suit against the Defendant or any other bound in the said Obligation And the Defendants said that the Plaintiffs nor any of them was not damnified by reason of the said Obligation in the Declaration or by reason of any of the said other Obligations and did aver the said Obligation in the Declaration and the said Obligation of 120 l. in the Indenture to be all one and that the said several days of payment limited by the Indenture nor any of them at the time of the Writ purchased were incurred Vpon which Plea the Plaintiffs demurred and the Defendant did joyn And I conceive that Iudgment ought to be given for the Plaintiffs for the Plea is utterly insufficient for divers causes And yet I do agree that although the Obligation be upon a condition yet is the Indenture a Defeasance thereof so that it is sufficient to the Defendant to perform the one or the other But the Indenture is of two parts 1. That if the Defendant shall pay to Elizabeth the daughter 500 l. and shall perform the other things mentioned in the Plea that all the Obligations shall be voyd and delivered up 2. The Plaintiff Elizabeth did covenant that until the Defendant should make default in the premisses and she should be damnified and upon request no satisfaction given to her she should not take any advantage of the Obligation nor shall prosecute any Suit against the Defendant or any other bound in the said Obligation And as to the first part I do agree that this is a good defeasance of the Obligation but the last clause is onely a Covenant and cannot be pleaded in bar of this Action brought upon this Obligation as in the 21 H. 7. 30. John de Pusetoes Case The said John and others were bound to T. who by Deed did grant to the said John that he should be quite discharged of the duty and if he be vexed or sued that the Bond shall be voyd which Case is there very largely argued but I conceive the better Opinion to be that the Bond is discharged because that the words are in effect as the words in the first part of this Indenture scil That if such act be made the Obligation shall be voyd But there Fineux said That if I grant to my Tenant for life that he shall not be impeachable for waste he shall not plead this in Bar but shall have an Action of Covenant thereupon And Brudnell put this case That if I grant to one against whom I have cause of Action that I will not sue him within a year this is not any suspension of the Action Vpon which case it is to be observed that I may sue and the other is put to his Action of Covenant And the Plea is first insufficient because he pleads that the Plaintiffs nor any of them were damnified by reason of the Bond in the Declaration or by reason of any of the aforesaid Writings obligatory in the said Indenture specified but he does not answer to the damnification by reason of the 500 l. to be payd to Elizabeth the daughter which is the principal matter to be done by the Defendant for the defeasance and in truth this Portion was due and not payd before this Suit begun The Defendant did aver that the several days of payment limited by the Indenture are not incurred and there is not any day limited for the payment of 500 l. and the truth was that it is payable at the time of the marriage of Elizabeth the daughter but this is not limited by the Indenture nor any time for the payment thereof and therefore this a verment is not good The Indenture of the Defeasance is if the Defendant shall pay the 500 l. or procure to the Plaintiff Elizabeth sufficent discharge for the same and shall provide fit maintenance for Elizabeth the daughter Whereupon I conceive that the Defendant ought to pay 500 l. and provide maintenance for the daughter or otherwise that he should procure a discharge from the Plaintiff Elizabeth and shall also provide maintenance for the daughter for her maintenance is as necessary if the mony be payd as it will be if the discharge be procured And the Defendant hath made no answer to the providing of maintenance Judgment And Michaelm 15 Jacob. Iudgment by all the Court was given for the Plaintiff Rot. 590. Trinit 16 Jacob. Margaret Evans against Wilkins IN an Action on the Case for that the Plaintiff the 12 September 15 Jacob. did retain the Defendant to be her Shepherd c. and that the Defendant in consideration of 6 d. to him payd by the Plaintiff and of 33 s. 4 d. of his Sallery to be payd to him for a year and in consideration that the Plaintiff did assume to pay the 33 s. 4 d. to the Defendant and to finde him meat drink and lodging for the said year and to permit the Defendant to have Pasture for twelve Sheep with the Sheep of the Plaintiff Did assume to serve the Plaintiff as a Shepherd for one year from Michaelmas next c. and to keep her Sheep To which the Plaintiff giving credit did not retain any other Shepherd and the Plaintiff did aver that she was ready to pay the Defendant the said 33 s. 4 d. and to provide him meat c. and to permit him to have Pasture for twelve Sheep with the Sheep of the Plaintiff yet the Defendant did not feed the Sheep of the Plaintiff although required the 4 Octob. 15 Jacob. whereby many of her Sheep dyed ad damnum 40 l. The Defendant pleaded the Statute of the 5 Elizab. whereby it is enacted That the Justices of Peace of every County or the greater part of them then resident in the County and also the Sheriff if it may be and every Major Bayly or other chief Officer of any City or Town Corporate in which there shall be any Justice of Peace within the limits of the said Town before the tenth of Iune next coming and afterwards shall yearly at every general Sessions first held and to be kept after Easter or any convenient time after Easter shall meet together and after such meeting shall call
infeoff another of all the Lands whereof my Father died seised in an Action agâ—inst me I ought to set forth the certainty of the Land whereof he died seised And although the Executor does represent the person of the Testator yet the Act of the Executor is not the Act of the Testator not like to the Case of an Attorney 32. Ed. 3. Bar 264. If one be bound to enfeoff another it is sufficient if the Attorney be ready to make the Feoffment and so in the 19. H. 6. the same Law to confesse an Action but when an Executor does an Aâ—â— for the Testâ—tor it is otherwise as if the Executor sell Land it must be so pleaded for a dead person cannot sell Land And afterwards the Plaintiff discontinued his Suit Hillar 13. Jac. Norris Plaintiff against Henry Baker and Elizabeth Baker Defendants IN an Action of Trespasse for that the Defendants the 28. Octob. 13. Jac. by force and armes c. upon one Thomas Davis and Nicholas James Servants and Workmen of the Plaintiff did make an assaâ—â—t and them there labouring in the service of the Plaintiff did wound c. whereby the Plaintiffs lost their Service to his damage of forty pounds c. The Defendants as to the forme and according did plead not guilty whereupon issue was joyned And as to the residue of the Trespasse they say that at the time of the Trespasse the said Henry was and yet is possessed of an ancient House with the appurtenances in Worcester for divers years to come the which house doth joyn to a void peice of land in Worcester against the South and that at the time wherein c. and also time out of mind there were ancient Windows or Lights in and upon the South-side of the aforesaid house against the said peice of land through which the light did enter into the said house and the said Henry did enjoy great and necessary Easements and Commodities by reason of the open Ayre and light shining and entring into the said house by reason of the said Windows and Lights aforesaid and the said Thomas Davis and Nicholas Jones maliciously plotting and intending to deprive the said Henry of all the Easement and commodity of the aforesaid Windows and Lights Et Messuagium illud horrida tenebritate obscurare the said day and year did intend to build a house upon the said peice of land and did there then erect divers peices of Timber for the building of the said house which house if it had been built the said Henry should have lost the said easements and commodities wherefore the said Henry and the other Defendant who was his Servant by his commandment the said time wherein c. being in the said house did hinder the said Thomas Davis and Nicholas Jones from building the said house and the Defendants with a Staff did thrust down the said peices of Timber wherewith the said Thomas Davis and Nicholas Jones would have built the said house and did thrust and put away the said Thomas Davis and Nicholas Jones least they should build the said new house Prout eis bene licuit which is the same Assault and Battery of the said Thomas Davis and Nicholas Jones whereof the Plaintiffs complain Vpon which Plea the Plaintiffs demurred in Law And I conceive the Iudgment ought to be given for the Plaintiff Because the Defendants have made no answer to the first matter of the Action which is the losing of the Service for it is not shewne throughout the Bar that the said Davis and Jones did make the building as Servants to the Plaintiff or by his commandment and 2. H. 6. 13. In a Trespasse for cutting of Trees where the Defendant pleaded that the place where c. was the Freehold of I. S. who let the same to the Defendant at Will and adjudged no plea by the Court unlesse he had said by which he entred and cut the Trees and so justified the Action 3. H. 6. 54. In a Trespasse for beating of his Tenant the Defendant said he was his Servant and the Issue was whether he was his Servant or not 31. H. 6. 12. B. 5. H. 7. 3. 20. H. 7. 4. and 20. H. 7. 5. A Master shall not have an Action for beating of his Servant unlesse he saies Per quod servitium amisit The cause of Iustification is because the Servants did endeavour to erect a Building which is not issuable There is no cause of Iustification for how can the Defendant know that the building will be to his hurt or nusance to him untill the building be erected and if it be to his nusance he may abate the same by Law The Plea is double for first they set forth that they had Lights c. and then they alledge that the new house was built for the word if is wanting and 33. H. 6. 26. In an Action on the Case the Writ was good Cum ipse habeat quoddam Cheminum ratione tenurae c. the Defendant levavit murum per quod querens Cheminum habere non potest c. It was holden by Prisoit that the Writ was not good by reason of the Repugnancy And this Case was argued again by Barcley for the Defendant and by me for the Plaintiff Judgment Tr. 14. Jac. And all the Court held the Plea in Bar to be insufficient for which Iudgment was given for the Plaintiff Rot. 256. Hillar 13. Jacob. Edward Smith for the King and himself against Stephen Bointon IN an Information because the Defendant between the twentieth of June 12. Jac. and the fourth of July next after at Westminster in the County of Middlesex did buy ingrosse and obtain into his hands by buying and contracting of divers persons unknown three hundred quarters of Barley of the value each quarter of twenty pounds a hundred quarters of Beans of the value of twenty pounds every quarter Ad revendendum contra formam statuti c. whereupon an Action accrued to the King and the Informer to have of the Defendant foure hundred pounds viz. the value of the Barley and Beans whereof the Informer prayed a moyety c. The Defendant as to the Ingrosment between the twenty second of May 13. Jac. and the said fourth of July next after pleaded not guilty And as to the Ingrosment between the said twentieth day of July 12. Jac. and the said twenty second of May next after The Defendant saith that before the exhibiting of the said Information sc the twenty second of May 13. Jac. one Robert Beadow did exhibite an Information in the Exchequer for the King and himself against the Defendant because the Defendant between the first of June last and the day of the said Information did ingrosse five hundred quarters of Wheat of price every quarter thirty pounds five hundred quarters of Barley of price every quarter twenty pounds five hundred quarters of Oates of price every quarter twenty shillings and five hundred quarters of Beans and Pease
April And whereupon the Defendant demurred in Law And I conceive that the Action will not lie for the Arbitrement is bond because the Arbitrators have exceeded their authority First because they have no power to discharge any action or duty accrued to any of the parties as Administrators Secondly because that by the Release the Obligation it self to stand to the Arbitrement is discharged Cook 10 Rep. 131. where Moor brought an Action against Bedell upon a promise to stand to the Arbitrement of A. and B. concerning all matters then in difference between them and that was the last day of Novemb. 24 Elizab. And the 10 of Decemb. the 24 of Eliz. they did agree that Moor should pay to Bedell certain monies and that Bedell should release all demands until the 15 of June 24 Eliz. and the Defendant in consideration of this submission did assume that he would not sue any Execution upon a Iudgment And the Plaintiff there assigned two Breaches one that he did not Release the other that he sued Execution And this was found for the Plaintiff upon a non assumpsit and entire damages given and then after it was reverst by Error because that the agreement as to the Release was voyd and therefore the damages being entire the Iudgment was erroneous And Michaelm 11 Jacob. Rot. 155. Staires against Wilde wherein an Action of Debt upon an Obligation to perform an award of and concerning all matters c. And they made an Award that one should pay to the other 3 l. and that each should release all Actions and Demands and the breach was assigned in not paying the 3 l. adjudged to be a voyd Arbitrement in all because it was to release all Actions at the time of the Release which is not within the submission And Pasch 42 Eliz. Rot. 211. Knap against Mâ—w where the condition was to perform an Award of certain things c. who did award that one should pay 20 l. to the other and that each should release all Actions and Demands and the breach was assigned in non-payment of the mony and it was adjudged that the Award was voyd And at last all the Court agreed that the Award was good as to all that was submitted to and voyd for the others and that the breach being assigned in a matter submitted to does give a sufficient cause of Action to the Plaintiff Wherefore it was adjudged that the Plaintiff should recover c. Hillar 13 Jacob. Smith against Whitbrook IN an Action on the Case for words viz. for saying to the Plaintiff the 4 Septemb. 12 Jacob. Thou meaning the Plaintiff art a Traytor and an Arch-traytor and I meaning the Defendant will hang thee or be hang'd for thee and after the 15 Septemb. 12 Jac. the Defendant did procure the Plaintiff to be brought before Sir Robert Cotton Knight and Robert Castle Esq two Iustices of Peace of the said County for Oyer and Terminer c. and did complain to the said Iustices that the Plaintiff had said and published divers Traytorous words of the King by reason whereof the Plaintiff was committed to the Goal of the said County by the said Iustices and there was imprisoned and did so remain until the next Sessions of Peace of the said County holden the 4 of Octob. 12 Jacob. before Robert Bell Knight Robert Payn Knight and other Iustices c. and the Plaintiff was compelled to finde Sureties for his appearance against the next Sessions to answer to such things as should be objected against him on the behalf of the King and in the mean time to be of good behavior c. At which next Sessions holden the 10 Janu. 12 Jac. before the said Iustices and other Iustices the Plaintiff did appear upon which the Defendant the same day and year in the publique Sessions did say of the Plaintiff I meaning the Defendant do accuse Robert Smith meanining the Plaintiff absolutely whereupon the Plaintiff was committed to the Gaol by the said Iustices and there remained in prison for the space of a month whereas the Plaintiff did never speak and Traytorous words against the King nor had committed any Treason against the King and this he layd to his damage of 1000 l. The Defendant pleaded that before the time wherein the said words are supposed to be spoken viz. the third of Septemb. the 12 Jacob. the Plaintiff having speech of the King did speak of him these Traytorous words The King meaning our Lord the King is a scupry King and so justified the several words and also the procurement of the Plaintiff to be brought before the said Iustices The Plaintiff by Protestation saith that he did not speak the said words of the King and for plea did demur in Law and the Defendant joyned Judicium And after Iudgment was given for the Plaintiff without reading the Record or having any argument because that the justification was insufficient and the Record was not read because it imported Scandal to the King Cooper against Smith IN an Action on the Case for words scil Thou and Waterman did kill thy Masters Cook meaning one Yarnton late Servant of Francis Dingley Esq and thou wast never tryed for it and I will bring thee to thy Tryal for it The Defendant pleaded Nor guilty and it was found for the Plaintiff and it was moved in Arrest of Judgment that it was not averred that the Plaintiff had a Master and that Francis Dingley was his Master but resolved that it need not be aveâ—â—â—d for if he had no Master yet it is a Scandal as if one should say Thou hast stoln the Horse of I. S. there is no need to aver that I. S. had a Horse and if everment be necessary it is averred here when he said Thy Masters Cook and there it is averred that the Cook was servant to Francis Dingley and it follows also that Francis Dingley was Master to the Plaintiff Judgment Wherefore Judgment was given for the Plaintiff Trinit 14 Jacob. Weal against Wells IN an Action on the Case for that the Defendant the 22 of Novemb. the 13 of King James crimen Felonie querenti false malitiose imposuit and did cause him to be arrested and taken for the Felonious taking and stealing of five Heifers of the Defendant and caused him to be brought before Sir Thomas Bennet one of the Iustices of Peace c. and out of malice also at the Sessions of Peace at the Guild-hall London before the Major and other the Iustices of Peace c. did cause him to be indicted maliciously and falsly for the Felony of stealing of five Steers the 23 Octob. 13 Jacob. and did cause him to be detained in the Gaol of Newgate until he was legally acquitted at the Gaol delivery the first of December the 13 Jacob. to his damage c. 100 l. and did aver the matter in the indictment to be false The Defendant said that the 18 Novemb. 13 Jacob. he was possessed
this warranty and thereupon they have recovered in value wherefore this Warranty is utterly determined 23 Edw. 3. Recover in value 12. If one upon a warranty vouch and recover in value and then is impleaded of the Land recovered in value he shall not vouch againe because the warranty wâ—s once executed The warranty is determined by the reverting of the Estate to whom it was annexed for when Katherine died Thomas Lea was to warrant the Land to the Conusees and after his death he had the Entire Fee-simple of the Land 22 of Edward the third 1. In Dower by Nicholas Powes and his wife the Tenant vouched A. who was ready in Court demanded what he had to bind him to warranty who said that the said A. B. his wife had rendred to him the said Tenements by Fine and obliged them and the Heirs of the wife to warranty and said that the wife was dead and had a Son and Heir who was liable to the warranty before him Iudgment of the Voucher and the Court held the Vouchment good Whereby it appears that after the death of Katherine Thomas was bound to this warranty and by his death he had a Fee-simple whereby the warranty is destroyed Littleton 169. If Tenant in Taile enfeoffs his Vncle who enfeoffs A. with warranty A. re-enfeoffs the Vncle in Fee who enfeoffs a stranger in Fee and dies without Issue the Tenant in Taile dies the Issue shall not be barred by the warranty of the Vncle because he does re-take to him as great an Estate of his first Feoffee to whom the warranty was made as the said Feoffee had from him and the cause why the warranty is defeated in this Case is because if the Warranty be in force then the Vncle shall warrant it to himself which cannot be And in one Case the Ter-tenants do claime the Estate which Thomas Lea had and therefore they cannot have a greater advantage by the warranty then he had Nat. B. 135. If one enfeoffs another with warranty and the Feoffee enfeoffs another and re-takes the Estate in Fee the warranty is determined and the 22 H. 6 22. b. accords with this because he is in of another Estate And depending the Writ of Error Viz. Trinit and Michaelm 14 Jacob. One of the Plaintiffs in the Writ of Error did dye which was pleaded by the Defendants Michaelm 14 Jacob. whereupon the Writ of Error was abated Hillar 13 Jacob. Robinson against Matthew Francis Administrator of Alban Francis Rot. 542. IN an Action of Debt on a Bond of 100 l. made the first of August 10 Jacob. The Defendant pleaded that the Intestate 20 November Plea the 11 Jac. was bound to Elizabeth Francis in 100 l. which was unpayd at the death of the Intestate and that Elizabeth marryed John Pennial John and Elizabeth brought a plea of Debt against the Defendant before the Major of London for the said 100 l. and recovered by default and had Execution of 55 l. 8 s. 5 d. and so acknowledged satisfaction c. and did further plead that the Intestate the 12 Janua 7 Jacob. did acknowledg in Chancery that he owed to the Lord Chancellor and to the Master of the Rolls 500 l. which Recovery and Recogniâ—â—nce did amount to 600 l. 8 s. 6 d. And that the Defendant for the said Execution and for payment of divers Debts of the Intestate before this Action plene administravit omnia bona Intestatoris praeterquam bona ad valentiam 100 l. which were lyable for the residue of the said Recovery and for 100 l. parcel of the said 500 l. and that he hath not nor had at the day of the Writ purchased any other goods c. saving to the value of the said 55 l. 8 s. 5 d. and the said 100 l. and did aver that the Debt recovered before the Major c. was a true and a just Debt and that the said Recovery as to 45 l. and 1 d. residue of the said 100 l. 8 s. 6 d. and the said Recovery did remain in force The Plaintiff as to the Recovery said That the said Obligation Replication upon which the said Recovery was had was made for security of the payment of 55 l. and that the said John Pennial and Elizabeth did accept the said 55 l. 8 s. 5 d. in full satisfaction of the said Iudgment and were content therewith and offered therefore to make a Release or to acknowledg satisfaction but the Defendant to defraud the Plaintiff of his just Debt did defer to have satisfaction acknowledged or to have a Release of the residue of the Iudgment and suffered the Iudgment to remain in force by fraud and covin to the intent aforesaid c. The Defendant as to the residue of the Debt Rejoynder and the acceptance of the said 55 l 8 s. 5 d. in satisfaction of the Iudgment and to the offer of Release and acknowledgment of satisfaction did demur in Law And as to the Recognizance he said that a Condition was annexed to it scil That if the Intestate his Executors or Assigns should pay 100 l. with the increase thereof to William Francis an Infant when he shall come to the age of 21 years and in the mean time shall imploy it to the benefit of the Infant according to the Will of William Francis that then the Recognizance shall be voyd and did aver that William Francis was alive and within age and that the said 100 l. was not yet payd And the Plaintiff to this did joyn in Demurrer And to the other Plea did demur in Law and the Defendant did joyn And I conceive that as to the first Demur the Plaintiff ought to have Iudgment for now it is acknowledged by the Defendant that he hath 100 l. in his hands besides the 55 l. 8 s. 5 d. delivered in Execution and he hath not shewed any sufficient cause for retaining it for when those who recovered 100 l. upon the Bond did accept 55 l. 8 s. 5 d. in full satisfaction of the Iudgment and did offer to release and acknowledg satisfaction this Iudgment in truth is discharged and cannot charge the Executor and therefore he cannot return riens en ses maines to satisfie because he is not bound to pay it Cook 8 Rep. Turners Case who brought an Action of Debt upon a Bond of 100 l. against Laurence and others Administrators of Booker The Defendants pleaded in Bar divers former Recoveries against them in Debt had that they had not Assets praeterquam bona catalla quae non attingunt ad valorem of the said Debts recovered The Plaintiff replyed that the Defendants since the Recoveries did pay part of the Debts in full satisfaction wherewith they held themselves content and offered to acknowledg satisfaction but the Defendants did refuse to agree to that to the defrauding of the Plaintiff And adjudged that the Plaintiff should recover for an Executor ought to execute his office truly Object
defrauded for if no information be for the conversion within one year after or if the Convertor pay the penalty of 20 s. for the converting he may let it out to another And by pretence of the Defendants Councel he shall not be subject to penalty for the continuance But the Court agreed that he who made the conversion should be punished and so should every other occupyer of the Land who does not keep the Land in tillage Rot. 386. Michaelm 12 Jacob. Perryn against Audrey Barry IN a Writ of Error to reverse a Iudgment given in the Kings Bench for the said Audrey against the said Perryn in Debt upon a Bond of 100 l. made the 28 of April 5 Jacob. In which Action the said Perryn demanded Oyer of the said Bond and of the Condition which was That if the Defendant Iohn Perryn his Executors and Administrators should perform the Award of Thomas Clyff Roger Glover Robert Goodwin and Thomas Piborn Arbitrators as well for the said Perryn as the said Audrey Barry elected to Arbitrate of for and upon all and all manner of Actions cause and causes of Actions Suits Trespasses Debts Duties c. and all other demands whatsoever which between the said parties at any time until the date of the Obligation have been had moved or now depending so that the same Award c. of the said Arbitrators or any three of them of the premisses be made and given up in writing indented under their hands and seals on or before the last of May next that then the Obligation shall be voyd And the Defendant did plead that the said Arbitrators did not make any Award The Plaintiff did reply that the said Roger Glover Robert Goodwin and Thomas Piborn three of the said Arbitrators the 30 of May. fifth of King James did make their Award by writing indented That the Defendant should pay to the Plaintiff 57 l. viz. upon or before the 16 of June next 10 l. and the 29 of September next 17 l. and the 25 of Novemb. next 20 l. and the 25 of March next 10 l. And whereas the Defendant and Stephen Perryn were bound to the Plaintiff in 12 l. upon condition to pay 6 l. at certain days that the said Obligation should be to the Plaintiff in force as then it was and that she should have such benefit thereby as she might have had before and that the Plaintiff should acquit and save indemnified the Defendant from all Debts Duties and mony for which the Defendant with the Plaintiff was indebted or bound to Dingley Numan Clark Cater or any of them And that all Actions depending between the parties in any of the Kings Courts and all other Actions and causes of Action for any matter between them except the matters contained in the Arbitrement and the Obligation to perform the Award should cease c. And that if any controversie or doubt should happen between the parties for or about any word sentence or thing in the Arbitrement or of or touching the Award or any thing contained therein that the parties and their Executors shall perform such explanation and construction thereof as the said three Arbitrators should make in writing under their hands concerning the same And that the Plaintiff shall pay to George Write for drawing and ingrossing the said Arbitrement 6 s. 8 d. which Agreement the said three Arbitrators shall deliver to the parties the same day And although the Plaintiff did perform all yet the Defendant did not pay the 10 l. the 16 of June next And hereupon the Defendant demurred in Law and the Plaintiff joyned and Iudgment given for the Plaintiff whereupon the Defendant brought this Writ of Error And assigned the first Error because the submission was to four and Error 1 the Arbitrement was by three onely But all the Iustices and Barons did hold that the Agreement was well made notwithstanding for it shall be taken now to be a submission to four or any three of them and so was it agreed in the Kings Bench where this point hath been argued at the Bar oftentimes The second was that the Arbitrators did not make any Award for Error 2 the Bond of 12 l. in which the said Plaintiff and St. Perryn were bound to the now Defendant upon condition to pay 6 l. at certain days and the submission is conditional sc That the Award be made of all things c. and therefore they ought to have determined these matters For it may be that this was the principal cause why the Plaintiff did submit himself to the Award sc to be discharged of this Bond which perhaps was forfeited for not performing the condition with the penalty whereof he shall be now charged And although the Bond was made by the Plaintiff and another yet was it a cause of action depending between the Plaintiff and Defendant for she may sue him 2 R. 3. 18. b. If three men and another do refer themselves to an Arbitrement of all demands between them the Arbitrators may make an Award of all matters which the three had against the other joyntly and of each matter which every one of the three hath against the fourth and may award that every one of the three shall pay mony to the fourth Vide Comment 389. Chapmans Case 21 H. 7. 296. In debt by a woman as Executrix the Defendant said that I. S. her husband and the Defendant did refer themselves to Arbitrament who made an agreement and the husband dyed and the Court held that the debt of the woman as Executrix was extinct by this Arbitrement The clause that the now Defendant should acquit the Plaintiff of Error 3 all Debts wherein he was bound with the Defendant to Dingley c. is insufficient because there is no Christian name The breach is assigned for that the Defendant did not pay the 10 l. Error 4 upon the sixth day of June whereas the Award was that it should be payd upon or before the 16 day of June But all did agree that this was well assigned because that when it is alledged that it was not payd upon the 16 day it was not payd before the day The Arbitrators have awarded that the parties shall stand to their Error 5 Award for construction of the Arbitrement and of all things in the Award and of all matters concerning them for the future which is not in their power for all the Award ought to be made before the last of May. They award 6 s. 8 d. to be payd by Audrey to George Write for ingrossing Error 6 of the Award which is not within the submission 1. Because Write is a stranger 2. Because it is a thing agreed on after the submission Judgment And Hill 14 Jac. The Iudgment was affirmed and they agreed the last agreement to be void but that was not materiall for the Award was void only for that and good for the residue Rot. 100. Hillar 13 Jacob. Mande against French IN
for a year rendering forty shillings Rent at Michaelmas and before the Feast does release to the Lessee all Actions yet after the Feast he shall have an Action of Debt for non-payment of the forty shillings notwithstanding the Release And 40 of Ed. 3. 48. Hillary By such Release to the Conusor of a Statute-Merchant before the day of payment the Conusee shall be barred of his Action because that the Duty is always in demand yet if he release all his right in the Land it is no Bar 25 Assis 7. And Althams Case Cokes Rep. 153. By a Release of all Demands not onely all Demands but also all causes of Demands are released And there are two manners of Demands viz In Deed and in Law In Deed As in every Praecipe quod reddat there is an express Demand In Law As in every Entry in Land Distress for Rent taking and seising of goods and the like acts in Pais which may be done without words are Demands in Law And as a Release of Suits is more large and beneficial then a Release of Complaints or Actions so a Release of Demands is more large and beneficial then any of them for by that is released all those things that by the others are released and more for thereby all Freeholds and Inheritances are released as in 34 H. 8. Releases 90. 6. He who does release all Demands does exclude himself of all Entries Actions and Seisures And Littl. 170. By the Release of all Demands Warranty is released and yet that is Executory and the reason hereof is that by the Release of Demands all the means remedies and causes that any hath to Lands Tenements Goods or Chattels are extinct and by consequence the right and interest in all of them And in 40 Ed. 3. 22. It is debated there whether a Release of all Demands by the Lord to the Tenant to hold onely by Rent and Fealty shall bar the Lord to demand reasonable ayd to marry his Daughter but it was agreed there that such Release shall bar the Lord of his Rent for as it is there said that is always in demand And 13 R. 2. Avowry 89. One gives Land in Tayl to hold by Rent Homage and Fealty for all Services and Demands this does discharge the Tenant of Relief but 18 Ed. 3. 26. contrarium tenetur And 7 Ed. 2. Avowry 211. Suit at a Leet by reason of Residency is not discharged by a Feoffment to hold by Rent for all Services and Demands for this service is not in respect of the Land but of residency of the person And 14 H. 4. 2. Gilbert de Clare Earl of Glocester before the Statute of Quia Emptores Terrarum did give Land parcel of the Honor of Glocester to hold of him as of the Honor to hold by Homage Fealty and Rent for all Services and Demands And after long argument it was agreed and hereby the Lord was excluded to have a Fine for alienation which otherwise was due from every Tenant of the Honor. And as the Fine was discharged there by the Feoffment so it might have been by Release of all Demands And the whole Court agreed Judicium that by this Release of all Demands the Rent is released and so the Plaintiff ought to be barred and so Pasch 16 Jacob. Judgment was given accordingly Hillar 13 Jacob. Southern against How IN an Action on the Case for that the Defendant the first of April 5 Jacob. was possest de quibusdam Jocalibus artificialibus contrefectis Anglice artificial and counterfeit Iewels viz. two Carcanets one pair of Ear-rings one pair of Pendants and one Coronet as of his proper goods and the Defendant there and then knowing the said Iewels to be artificial and counterfeit and fraudulently intending to sell them for true and perfect Iewels there and then did deliver them to one William Sadock his servant to whom at that time the said Iewels were known to be counterfeit and artificial and did command the said William to transport the said Iewels beyond the Seas into Barbary where the Defendant well knew that the Plaintiff was residing and did further command the said William that he should conceal the counterfeitness and falsness of the said Iewels and that after his arrival he should repair to the Plaintiff and shew him the said Iewels for good and true Iewels and there require the Plaintiff to sell the said Iewels for good and true Iewels for the Defendant to the King of Barbary or to any other that would buy them and that he should receive a price for them as if they were good and true Iewels That the 20 of April 5 Jacob. the said William did sail from London to Barbary and there the 22 June 5 Jacob. arrived and did then repair to the Plaintiff and knowing the said Iewels to be artificial and counterfeit did shew them to the Plaintiff for good and true Iewels and there and then did require the Plaintiff to sell them for good and true Iewels to Mully Sydan then King of Barbary and there then did affirm to the Plaintiff that the said Iewels were worth in value 14400 Dunces of Barbary Mony amounting to 810 l. of English Mony And the Plaintiff not suspecting the said Iewels to be counterfeit but conceiving them to be good and true did receive them of the said William and afterwards scil the 22 of August 5 Jacob. did offer them to the said King of Barbary as good and true Iewels and there and then did procure the said King to buy the said Iewels not being of the value of 3000 Ounces of Barbary Mony amounting to 168 l. 15 s. English for 14400 Ounces of Barbary Mony amounting to 810 l. which mony the Plaintiff the 22 of August 5 Jacob. received of the said King for the said Iewels for the Defendant and did pay the said sum then there to the said William for the Defendant and the said William immediately after the receit thereof did secretly withdraw himself out of Barbary and did return into England to the Defendant with the said sum and the first of October 5 Jacob. did pay the same to the Defendant That the 30 of May 6 Jac. the said King perceiving the said Iewels to be counterfeit caused the Plaintiff to be arrested and imprisoned for them and retained him in prison three months and until the Plaintiff out of his proper goods did repay to the said King the said 14400 Ounces of Barbary Mony That the first of October 6 Jac. the Plaintiff gave notice to the Defendant of the repair of the said William to him and of all the premisses and requested him to pay to the Plaintiff the said sum which yet he hath not payd ad damnum 2000 Marks The Defendant pleaded Not guilty The Iury found that the first of April 5 Jac. the Defendant was possest of the said Iewels and knowing them to be artificial and counterfeit and intending fraudulently for good and true Iewels