l. at such a day without saying how or in what manner these Debts accrued or when because the Action is nor meerly founded upon the Debt but upon the promise and the Debts are but inducements to it But if it were to recover the Debts themselves in an Action of Debt there ought to be made a certainty therof to wit when and how it comes And further here in as much as the Assumpsit is found for the Plaintiff it shall be implyed that the consideration was duly performed for without due proof of the consideration the Plaintiff hath failed of his assumption and therfore also it shall be now taken that the Testator hath such a term of years in reversion to which the term for years in possession may be surrendred for he said that he who hath ten years in possession may well surrender to him who hath more years as twenty in reversion for the lesser may surrender to the greater term To all which Popham and Fennor agreed And Popham said further although it shall be taken most strongly against Hughes to wit that Robotham had a lesser term in the reversion then Hughes had in the possession yet the surrender shall be good for in Law it is greater and more beneficiall for him to have a lesser term to be a term in possession then to have it to be in reversion â—â—nd by him if a Lessee for twenty years make a Lease for ten years then he wâ—ich makes the Lease for ten years hath a reversion upon these ten years so that if Rent be reserved upon it he may distrain for it and have Fealty of the Termor And if he grant the Reversion over for ten years with attornment of the Termor in possession the Grantee hath the Reversion and shall have the Rent for the time and yet the Remainder for years remains alwaies to the Grantor and therfore before the Reversion granted ever the Termor for ten years in possession might have surrendred to his Lessor and therby the said Lessor shall have so many of the said years which were then to come of his former term of twenty years And after the Reversion granted he which hath the ten years may surrender to the Grantee of ten years in Reversion and there he shall have so many years in possession which were to come of his Reversion Quod nota bene And if he had had a lesser term in the Reversiâ—n then the Lessâ—r himself had in the Possession it shall go to the benefit of the first Termor for twenty years who was his Grantor for the Term in possession is quite gone and drowned in the Reversion to the benefit of those who have the Râ—version therupon having regard to their Estate in the Reversion and not otherwise to all which Fennor agreed wherupon Gawdy gave the rule that Iudgment shall be entred for the Plaintiff But Popham said that if the consideration for the surrender had not been sufficiently alledged that the Plaintiff shâ—uld not be helped by the other consideration of 100. marks given by Thornel for if such an Assumption as this is be founded upon two more considerations and such which by possibility may be performed then the party hath failed of his Suit As if a man in consideration of 5 s. paid and of other 5 s. to be paid at a day to come assume to do a thing or to pay money if the one 5 s. be not paid or if it be not averred that the other 5 s. was paid at the day limited for the payment of it the party hath failed in his assumption in the one case and the declaration is insufficient in the other case for he hath made a departure from his consideration But if one of the considerations be impossible or against Law there the other considerations which are possible or stand with the Law suffice if they he well alledged And he said that the Executor shall be charged with the contract of the Testator by common course of the Court which stands upon reason for if an Action of Debt upon a bare contract be brought against an Executor if he do not demur upon it but plead to the Paâ—s that he owes him nothing and it is found against him he shall be theâ— by charged of the Goods of the dead and the cause why he may be helped by demurring upon the declaration in that case is becâ—use the Testator might have waged his Law in that case of debt which the Executor could not do of other contracts and therfore shall not be charged with it by such an act if he will help himself by demurrer but in â—he assumption of his Testator he could not have waged his Law and it is founded upon the death of the Testator to wit his debt with which the Executor by a mean may be charged as before and therfore the assumption in such a câ—se maintâ—inable against the Executor But if the Testator upon good consideration assume to make assurance of Land or to do any other such collaterall thing which doth not sound in a duty of a thing payable there the Executor shâ—ll never be charged with such an assumption to render recompence for it And to this agreed all the Iustices â—â— the common Bench and Barons of the Exchequer And such an assuâ—â—â—ion hath not been allowed in the Kings Bench but of late time and thâ—â— but 〈…〉 or two cases But in the other case it hath been common and of 〈…〉 and therfore now too late to be drawn in question and if it should â—â— it may be maintained with good reason in this case of a duty of â—â—ing payable in as much as the Testator cannot wage his Law in the Action but in the other case there is no reason nor course of the Court to maintaiâ— it But the Iudges in the Exchequer Chamber reversed all these Iudments in both cases 2. Nota that this Term was adjourned to Octob. Trin. and because the Writ was that Adjournment shall be made in Octob. Trin. of all cases untill Tres Trinitat the Adjournment was made in every of the Courts of Kings Bench Common Bench and the Exchequer the very first day of Octob. Trin. then it was holden by the Iustices that the Adjournment ought not to have been made untill the sitting of the Court the fourth day from Octabis And because that the Writs were that at the said Tres Tr. the Term shall be holden therafter as if no Adjournment had been the Iustices held that they ought to sit the first day of the said Tres Trin. and so from thence every day untill the end of the Term and for all causes as if no adjournment had been and so they did accordingly saving by assent some of the Iustices did not come thither by reason of their far distance from London at the end of the Term upon the last Adjournment But they held that if it had not been for the especiall words in the Writ which were
in themselves do purport And if it had been good for the matter yet it is not good for the form for want of a Traverse for without the Traverse the plea is not answered in that case which is laid to the charge of the Defendant But Popham and Clench held strongly to the contrary and that this Bar is good in matter and as the case is cannot be otherwise and that the form also is good enough and yet the two Affirmatives cannot make a good Issue but in case of two Affirmatives a Traverse shall not be but where the Affiâ—matives do not agree in one As if the Defendant in Trespasse Intitles himself by the Feoffment of a stranger and the Plaintiff reply and maintain that the same stranger did enfeoff him this cannot make a good Issue without a Traverse of the Feoffment alledged to be made to the Defendant But in the same case if the Plaintiff saith that true it is that the stranger enfeoffed the Defend an t but this was to the use of the Plaintiff and his Heirs there no Traverse shall be on the Plaintiffs part because as to the matter of the Feoffment it agrees with the Defendant in which case it shall not take any Traverse but there the Traverse shall come on the Defendants part to maintain the Feoffment to his own use Absque hoc that the Feoffment was to the use of the Plaintiff for now that which the Defendant saith albeit it be in the Affirmative yet it is a Traverse to that which the Plaintiff hath alledged and therfore he needs not traverse the plea And so a diversity where the Affirmative is to traverse that which is alledged by the other party and where not for in one case the conclusion shall be with a Traverse and in the other not Then in this case when the Plaintiff alledged that the Defendant spake these words which prima facie shall be intended to be spoken in this sence as the Plaintiff hath alledged although no Innuendo had been in the case for if it shall not be so intended without the Innuendo the Innuendo will not help it yet when the Defendant hath declared the circumstance wherupon these words were spoken and then the speaking of them therupon now he hath confessed the very words themselves to be spoken but upon the circumstance discovered to be in another sence then prima facie they are to be taken and therfore he shall not take a Traverse for he acknowledgeth the very words but not the intendment which the very Law prima facie presumes upon the words and therfore shall not take a Traverse for this intendment of Law being answered by matter expresly in the plea shall never be traversed as in the case put of a Feoffment prima facie it shal be intended to be to the use of the Feoffee yet when the other party maintains that this Feoffment was to his use he shall not take a Traverse to that which the Law intends and presumes And if a man upon speech had with a Hunter saith That he hath murthered all the Hares within 7. miles of his house and another answer and say he is a Murtherer indeed wherupon the Hunter brings an Action upon the Case against him for saying that the Plaintiff was a murtherer the Action will well lye Yet when the other shall discover the communication wherupon the words were spoken this shall be a good Bar without a Traverse yet if it be true that there were no such communication between the parties as is mentioned in the Bar the Plaintiff then hath good cause of Action and therfâ—re he may well say De injuria sua propria absque tali causa and this being sound it shall be against the Defendant So upon speech of a Butcher who had killed a 1000. Oxen in a year and one hearing it will say that he is a notable Murtherer this upon the matter disclosed is not actionable And it shall be mischievous by a Traverse or by pleading generally not guilty to put such speciall matter in the mouth of Lay-people to give their Verdict upon being ignorant and therfore easie to be miscarried in theâ—r judgment and therfore it shall be the rather admitted by speciall pleading to be put to the judgment of the barred Judges then into the mouths of lay Gents And here when Fletcher speaking of the order to be taken by the Councell upon the Petition said that the Earl would obey their order to which the Defendant answered that he knew not what the Earl would do the said Fletcher said therupon that he was a Subject and what was the intent of Fletcher in saying so no other but that because he was a Subject therfore he ought to obey and if it be so to be understood as of necessity it ought or else they were not spoken by Fletcher to any purpose which cannot be intended then shall the words following being spoken therupon by the Defendant be taken to be spoken in answer to the matter of the Speeches spoken by the said Fletcher and this is that he was sorry and it was his grief that he must be so subject as to be bound therby to obey their Order as if a man saith to another that he was sorry that he was so subject that he must obey a Iudgment against him in the Queens Court this is no cause of Action for this tends but to his subjection to the Law or good order or the like which do not give cause of Action As if one saith of another that he is of the Temple who alwaies rebell against the Governours of the said house then saith another to him Will you then say and maintain that he is a Rebell yes sayes one of the other I will do so If an Action be brought for the last words the Action will lye but if the other discover the circumstances of the Speech in the Bar wherupon it was spoken the Action will not lye And this the Defendant may well do without traversing that which is alledged because he acknowledgeth it although in another sense then the Law Prima Facie imports upon the Declaration And if in Speech between two one of them saith of a stranger that he hath treacherously betrayed his Friend in revealing all his secrets and councell wherupon the other then saith that he hath done as a Traytor therin and the other saith to him again he is a Traytor and he answering to it saith true he is a Traytor Now if the stranger brings an Action of the Case against him for saying of these last words Prima Facie it imports good cause of Action without any Innuendo as that he intended therby that he was a Traytor to the Queen because the words in common intendment have such a sence yet upon the matter disclosed by way of Bar with the circumstances how they were spoken the Plaintiff shall be barred if he cannot maintain that they were spoken without such a cause which
not properly said an Use untill that it be said in Esse to take the Profits themselves But I am to turn this Argument against him who made it for if it be so the Use can never be in suspence and iâ— so it follows that no Possession by means of any such Use can be in suspence but staies where it was before to be executed when the Use happens to be in beeing But as to that that a Reversion or Remainder may be of that which we call an Use so also may such a Use be in suspence in the same manner as the Possession it self but not otherwise And as to Cramners Case formerly put the Law is so because nothing appeareth in the case to be done to the disturbance of this contingent Vse in the interim before it happen But upon the Case put of the Lady Bray upon which it hath been so strongly relied it was thus The Lord Bray made an assurance of certain Lands to the use of certain of his Councell untill the Son of the said Lord Bray should come to the age of 21. years for the livelyhood of the said Son and of such a Wife as he shall marry with the assent of the said Councell and then to the use of the said Son and of the said Wife and of the Heirs of the body of the said Son The Father dies the Son was become in Ward to the King after which one of the said Councellors dies the King grants over the Wardship of the said Son after which the said Lord Bray by the assent of his Guardian and of the surviving Councellors marries the Daughter of the then Earl of Shrewsbury after which the Husband aliens the same Land to one Butler and dies and upon Action brought by the said Lady against the said Butler for the same land she was barred by Judgment and upon what reason because she was not a person known when the Statute was made which must be in every case of a Freehold in Demesne as well in case of an Use as in case of a Possession And therfore a Lease for years the Remainder to the Heirs of I. S. then living is not good and the same Law of an Vse And so it was agreed by all the Iustices very lately in the case of the Earl of Bedford but in these Cases it remaineth to the Feoffor and because it doth not appear at the time of the assurance who shall be the Wife of the said Son so that there was not any to take the present Free-hold by name of the Wife of the Son she takes nothing by the assurance but this reason makes for our side to wit That if there were none to take the Free-hold in Demesne from the Use when it falleth he shall never take it The other reason in this Case was because she was not married by the consent of all the Counsellors for that one was dead nor according to the power given by the agreement but by the authority of the Guardian that the power which the Father had upon his Son was ceased And Nota That by a Disseisin the contingent Use may be disturbed of his Execution but there by the regresse of the Feoffee oâ— his Heirs when the Contingent happen it may be revived to be executed But by the release of the Feoffee or his Heirs the Contingent in such a case by Popham iâ—â—â—â—red oâ— all possibility at any time to be executed And to that which hath been said that the generall and universall Assurances of men throughout all the Realm at this â—ay arâ— by means of Vses and that it shall be a great deal of danger and inconvenience to draw them now in question or doubt and that it now trembleth upon all the Possessions of the Realm and therfore it shall be too dangerous to pull up such Trees by the roots the Branches wherof are such and so long spread that they overshadow the whole Realm Popham said That they were not utterly against Uses but only against those and this part of them which will not stand with the publike Weal of of the Realm and which being executed shall make such an Estate which cannot stand with Common Law of the Realm or the true purport of the Statute and therfore he said that it was but to prune and cut off the rotten and corrupt branches of this Tree to wit that those which had not their substance from the true Sap nor from the ancient Law of the Realm nor from the meaning of the Statute and so to reduce the Tree to its beauty and perfection The same reason he said might have been made in the time of Edw. 4. against those Arguments which were made to maintain the common Recoveries to bar Estates-tail But if such a reason had been then made it would have been taken for a bare conceit and meer trifle and yet Vses were never more common then Estates-tail were between the Statute of Donis conditionalibus and the said time of Edw 4. But the grave Iudges then saw what great trouble hapned amongst the people by means of Intails and what insecurity happened by means therof to true Purchasors for whose security nothing was before found as we may see by our Books but collaterall Warranty or infinite delay by Voucher and thus did the Iudges of this time look most deeply into it wherupon upon the very rules of Law it was found that by common Recovery with Vouchers these Estates-tail might be barred which hath been great cause of much quiet in the Land untill this day that now it begins to be so much troubled with the cases of Vses for which it is also necessary to provide a lawfull remedy But he said plainly That if the Exposition made on the other side shall take place it will bring in with it so many mischiefs and inconveniencies to the universall disquiet of the Realm that it will cast the whole Common-wealth into a Sea of troubles and endanger it with utter confusion and drowning And to that which was said That a Remainder to the right Heirs of I. S. or to the Heirs of the body of I S. or to the first Son as here are so in the custody of the Law that they cannot be drawn out that therfore no forfeiture can be made by the Feoffment made by him who hath the particular Estate To that he said That a Disseisin made to the particular Estate for life draws out such Remainders to the right Heirs as is proved expresly by 3 H. 6 where it is holden that a collaterall Warranty bars such a Remainder in obeyance after a disseisin And by Gascoigne 7 H. 4. If such a Tenant for life makes a Feoffment in Fee it is a Forfeiture but he conceived that in the life time of I. S. none can enter for it but this is not Law and when by the Feoffment the particular Estate is quite gone in possession and in right also the remainder shall never take
in his custody and offered to the said Sheriff to put him in the Indenture amongst his other Prisoners delivered to the new Sheriff but would hâ—ve had the said old Sheriff to have sent for the said new Sheriff to have taken him into his custody but the new Sheriff refused to receive him unlesse Dabridgecourt would deliver him into the common Gaol of the County which was in the Town of Warwick wherupon afterwards the Prisoner escaped And Dabridgecourt was charged with this Escape and not the new Sheriff for he is not compellable to take the Prisoners of the delivery of the old Sheriff but in the common Goal of the County and the old Sheriff remains chargeable with the Prisoner untill he be lawfully discharged of him and if the Sheriff dies the party shall be rather at a prejudice then the new Sheriff without cause charged with him And in such a case the party who sued the execution may help himself to wit by the remaining of the body by a Corpus cum causa wherby he may be brought to be duly in execution and this under a due Officer And Anderson Periam and other Iustices were also of opinion that the said Skinner and Catcher are to be charged with the escape in the principall case wherupon Iudgment was given for the Plaintiff which was entred Hillar 34 Eliz. Rot. 169. in the B. R. Fulwood versus Ward 2. IN a Writ of Annuity brought in the Common Pleas by George Fulwood Plaintiff against William Ward Defendant the Case was thus The Queen was seised of a Barn and Tithes of Stretton in the County of Stafford for the life of the Lord Paget and being so seised demised it by Letters Patents dated 21. June 29 Eliz. to the said William Ward for 21. years wherupon the said Ward by Writing dated 30. Iune 29 Eliz. granted to the said Plaintiff an Annuity or yearly Rent of 10 l. out of the said Barn and Tithes for 15. years then next ensuing payable yearly upon the 8. day of November with clause of Distresse The Lord Paget died the first day of March 32 Eliz. and for the Arrearages after his death the Plaintiff brought this Writ of Annuity and for the difficulty therof in the Common Pleas the Case came this Term to be argued before all the Iustices and Barons at Serjeants-Inn in Fleetstreet where it was agreed by Walmsley Fennor and Owen that the Annuity was gone by the determination â—â— his Estate in the Land who made the Grant for they said that presently upon the Grant made as before it was a Rent-charge for by such a Rent granted in Fee the Fee shall be in his Heirs albeit the Grantee dies before any Election made and such a Rent is payable from the beginning at the Land as appeareth by 12 E. 4. And by grant of Omnia terras tenementa hereditamenta such â— Rent will passe ergo it is a Rent-charge and not an Annuity untill the Election made and by the determination therof in the nature of a Rent the Election is gone as by Babington and Martin 9 H. 6. by the recovery of Lâ—nd charged with such a Rent by elder Title the Annuity is gone as it seeâ—s by their opinion and by them and by Littleton upon a Rent-charg◠〈◊〉 with Proviso that he shall not charge the person of the Grantor 〈…〉 exclude the charge of the person which proves that the Land is charâ—â—â— Originally and not the person for otherwise the Proviso would be void for the repugnancy And if so whensoever the Land is discharged as by 〈…〉 â—â—â—cent or the like the person therby is also discharged and therfore â—he Iuâ—gment here shall be that the Plaintiff shall be barred But by the chief Iustices chief Baron and all the other Iustices and Barons the Plaintiff ought to have Iudgment in this case to recover the Annuity for the Law gives him at the beginning an Election to have it as a Rent or an Annuity which matter of election shall not be taken from him but by his own Deed and folly as in case where he purchase part of the land charged in which case by his own Act he hath excluded himself of his Election But if a Feoffee upon condition grant a Rent-charge and presently break the Condition wherupon the Feoffor re-enter shall not the Feoffee be charged by Writ of Annuity surely it shall be against all reason that he by his own act without any folly of the Grantee shall exclude the Grantee of his Election which the Law gives at the beginning And they denied the opinion of 9 H. 6. to be Law But if the Disseisor grant a Rent-charge to the Disseisee out of the Land which he had by the Disseisen by his re-entry before the Annuity brought the Annuity is gone for this was his own act yet in effect all of them agreed that Prima facie it shall be taken as a Rent-charge of which the Wife shall be endowed as hath been said which passe by grant of Omnia hereditamenta and which is payable at the Land but the reason is because it is expresly granted out of the Land and also for the presumption of Law that it is more beneficiall for the Grantee to have it in such a degree then in the other But neither the presumption of Law nor the expresse Grant therof as a Rent shall not take away from the Grantee the benefit of his Election where no default was in him but that upon his Election he may make it to be otherwise as ab initio And therfore by Popham If a Rent-charge be granted in tail the Grantee may bring a Writ of Annuity and therby prejudice his Issue because that then it shall not be taken to be an Intail but as a Fee-simple conditionall ab initio And if a Termer for two years grant a Rent-charge in fee this as to the Land is but a Rent charge for two years and if he avow for it upon the determination of the Term the Rent is gone but by way of Annuity it remains for ever if it be granted for him and his Heirs and assets descend from him who granted it And if a Rent-charge be granted in fee and doth not say for him and his Heirs if the Grantee brings his Writ of Annuity the Heir shall never be charged therwith yet if he had taken it as a Rent-charge the Land had been charged with it in perpetuity And by him the cause why the Proviso that he shall not charge the person of the Grantor upon the grant of a Rent-charge is good is because the person is not expresly charged by such a Grant but by operation of Law But in such a case a Proviso that he shall not charge his Land is meerly void for the repugnancy because there the Land is expresly charged by precised words and therfore if it be expresly comprised in such a Grant that the Grantee may charge the Land or the person of the
naturall Jones Iustice There is great difference between a way and a water-course as to this purpose for admit that this water-course after that it had been in the Curtilage of the Plaintiff goes further to the Curtilage of another shall not that other have the benefit of this water-course notwithstanding the unity of possession I think cleerly that he shall Doderidge my opinion is that the water-course is not extinguished by the unity of possession But some conceived that he had declared his opinion in terror to the Defendant And afterwards the same Term Barksedale for the Plaintiff said that he had agreed the case before and therfore would now only indeavour to answer some exceptions which had been taken to the Declaration 1. Exception hath been that no prescription or custom is made for this water-course but only that Currere solebat consuevit But I conceive thaâ— the Declaration is good notwithstanding this because the Plaintiff here doth not claim an interest in the Water-course but in the Land in which c. and therfore it is good and this appeareth by 12 E. 4. 9. the Prior of Lantonies case in a prescription in a Market overt generally and the reason there was because he was a stranger as in our case he is and this pleading appeareth also to be good by Cooks Book of Entries 18. Smiths case which was entred 9 Jac. Rot. 366. in this Court 2. Exception was because it is not said that it was Antiqua Rectoria 3. Exception because it doth not appear that he was a spiritual man to whom the Demise of the Rectory was made 4. Because it is not said that the Water-course Ad predict Rectoriam pertinet 5. Because the Water-course is alledged to be for his customary Tenants of the said Rectory and this is not good as appeareth by 21 Eliz. Dyer 363. Prescription Pro quolibet customar Tenente is not good but I conceive that this case is not our case for here is Customarius tenens Rectoriae and there it is agreed that Quilibet customarius tenens Maner had been good And the plea in Bar hath salved these objections and therfore he prayed judgment for the Plaintiff Jeremy for the Defendant And first for the matter in Law it seemed to him that by the unity of possession the Water-course is extinguished and the Water-course may well be compared to the case of the way for as a way is a passage for men over the land so water hath passage upon the land and a way is extinguished by unity as appeareth by 21 E. 3. 2. 11 H. 4 5. 21 Ass and Davies Reports 5. and in 4 Jac. Jordan and case it was the better opinion that a way was extinguished by unity of possession true it is that there Popham chief Iustice put the difference where the way is of necessity and where not for where the way is of necessity there it shall not be extinguished This case hath been compared to the case of a Warren in 35 H. 6. but I conceive that the cases are not a like because a Warren is a meer liberty 8 H. 7. 5. A man may have a Warren in his own Land and Co. lib. 7. Buts case by a Feoffment of Land a Warren doth not passe but this Water-course hath its originall out of the Land and this case cannot be compared to an ancient Water-course running to a Mill for notwithstanding the unity it shall passe with the Mill for otherwise it shall not be Molendinum aquatinum so that the water there is parcell of the thing and so of necessity ought to passe with the thing but here it doth not appear that it is a Water-course of necessity and for any thing that appeareth it may be filled with another Water-course Also I conceive that the Declaration is not good 1. Because neither prescription nor custom is laid for the Watercourse and it appeareth in Co. Book of Entries Holcome and Evans case and the old Book of Entries 616 617. Mich. 1. Car. Rot. 107. Turner and Dennies case in this Court in trespasse for breaking his Close c. the Defendant justified for a way c. and that he was possessed for years and for him and his Occupiers had a way over the Land the Plaintiff demurred and resolved that the prescription is not good 2. The Declaration is insufficient being an action upno the case for the stopping of a Water-course and it is not Vi armis nor Contra pacem Co. lib. 9. 50. the Earl of Shrewsburies case when there are two causes of an action upon the case the one Causa causans the other Causa causata causa causans may be alledged Vi armis for this is not the immediate cause of the action but Causa causata F. N. B. 86. H. and 92. E. in the end of the Writ of action upon the case shall be Contra pacem 3. Also he hath prescribed for the Tenants of the Rectory which is not possible for no Lay-man could be Tenant of a Rectory or of Tithes before the Statute of H. 8. and therfore I pray Iudgment for the Defendant Whitlock chief Iustice conceived that the declaration was good the bar is naught both for the form matter the question here is of Aqua profluens and I conceive that there needs no prescription or custome in this case for water hath its naturall course and as is observed by Brudnell in 12 H. 8. Natura sua descendit it may be called Usu captio or Vsage and he conceived that the action upon the case very well lies in this case like to the case where a man bath a house and windows in it and another erect a new house and stop the light then I may have an action upon the case but true it is that I shall not only count for the losse of the aire but also I ought to prescribe that time out of mind light have entred by these windows c. see 7 E. 3. If there be a School-master in a Town and another erect a new School in the same Town an action upon the case doth not lye against him because Schools are for the publike benefit and every private man may have a School in his house And for the exception that a Lay man cannot be possessed of a Rectory I conceive that the Declaration is good notwithstanding for a Lay-man may have a Rectory by Demise And for the Plea in bar it is not good for the form because that Searles entred and enfeoffed Pigot and it is not said that he entred and Expulit and if a man enter and make a Feoffment the owner being upon the Land the Feoffment is void and therfore an actuall Ouster ought to be shown And for the matter in Law he conceived that the Bar was not good for by the unity of possession the water-course is not extinguished and yet I agree the cases of a way and common upon the differences of Rights which are
was given this day The same Term in the same Court. Goodwin versus Willoughby GOodwin brought an action upon the case against Joane Willoughby wife of Thomas Willoughby and upon non Assumpsit pleaded it being found for the Plaintiff it was moved in Arrest of Iudgment 1. That the Plaintiff shews that Thomas Willoughby was indebted upon account and doth not shew that Joane Willoughby is Executrix or Administratrix and yet that she promised to pay wheras in truth she hath no cause to pay for there is no consideration and so Nudum pactum Jermy for the Plaintiff for the first because it doth not appear for what cause he accounted I answer that this is but a meer conveyance And for the second that she does not suppose that the Feme is executrix c. But here is a good consideration which is that she shall not sue or molest and that he gave day for payment this is a sufficient consideration But Stone of counsell with the Defendant said that the first is the ground of the action and therfore he ought to shew for what he accounted Crew chief Iustice two exceptions have been taken 1. For the alledging the manner of the account which I conceive is good enough and he need not shew the cause of the account And as to the second because it doth not appear that she is Executrix or Administratrix and so no consideration and so no Assumpsit But here she assumes to be Debtor and makes a promise to pay which is an acknowledgment of the Debt by inference and therfore he conceived that the Assumpsit was good Doderidge Iustice for the first it is good enough yet Cum indebitatus existit is no good Assumpsit but here he shows a speciall way of Debt and it would be long and tedious to describe his account For the second there is no cause of action because it doth not appear that she is Executrix or Administratrix or Executrix of her own wrong If I say to one do not trouble me and I will give you so much this is not actionable for there ought to be a lawfull ground and for this cause the Declaration Where forbearance without cause of action is no ground of an Assumpsit is void for it is only to avoid molestation Give me time c. this is no good Assumpsit for forbearance is no ground of action where he hath no cause to have Debt Jones Iustice agreed in the first with them because a generall action upon the case sufficeth and in truth it is but an inducement to the action but for the other part he doubted and he cited one Withypools case an Infant within age promised to pay certain money he makes an Executor and dies within age the Executor saith to him to whom the promise is made forbear and I will pay you and there an action upon the case did lye against the Executor upon this promise and yet it was a void Contract but there was colour of action forbear till such a time now the other hath lost the advantage of his Suit But he gave no opinion Crew It is a violent presumption that he is indebted But by Doderidge here is no colour to charge her but only by inference that she is Executrix If a stranger saith forbear such a Debt of J. S. and I will pay it it is a good consideration for the losse to the Plaintiff and in this case it appears not that there is any cause and Broom Secondary said that Withypools case before cited was reversed in the Exchequer Chamber Jones If an Infant makes a promise it is void and he may plead non Assumpsit which Doderidge did not deny But upon his Obligation he cannot plead Non est factum for he said that he shall be bound by his hands but not by his mouth The same Term in the same Court Drope versus Theyar IN Debt by Drope against Theyar an Inne-keeper upon Issue joyned and a Verdict for the Plaintiff Bolstred moved in Arrest of judgment for the Defendant and the matter was that one Rowly who was servant to Drope lodged in the White Heart at S. Giles and there had certain Goods of his Masters which were stoln from him in the night and Drope the Master brought an action therupon and it was moved by Bolstred that the Plaintiff was without remedy 1. Because it was in an Inne in London for the Register 105. is Quando quis depraedatus euns per patriam which as he said could not be extended to an Inne in London 2. It ought to be an Inne as Inne-keeper 3. He ought to be as a Guest lodging and this appeareth in Culeys case in 5 Jac. in Celly and Clarks case which was entred Pasch 4. Jac. Rot. 254. It was adjudged that where the Guest give his Goods to his Host to deliver to him three daies after and the goods are lost that an action is not maintainable against the Inne-keeper for them and this was in an Inne in Uxbridge And in one Sands case where the Guest came in the morning and his Goods were taken before night he shall have an action against the Inne-keeper 4. The Goods ought to be the Goods of the party who lodgeth there for the words are Ita quod hospitibus damna non eveniunt and here the Master who brought the action was not Guest But admit the Master shall have the action yet he ought to alledge a custom that the Master shall have the action for the Goods taken from his Servant Trin. 17 Jac. Rot. 1535. Bidle and the Master brought an action for Goods taken from the Servant and there it was resolved that he ought to conclude that Pro defectu c. and apply the custom to him being Master Sec Co. Book of Entries 345. And that a custom that for other mens Goods in the custody of Guests the Owner shall have an action against the Inne-keeper if they be stollen Ob. This is the Common Law and therfore ought not to be alledged Answ Where a man takes upon him to shew a custom he ought to shew it precisely he cited Heydons case Co. lib. 3. 28 H. 8. Dyer 38. And it was said for the Plaintiff that Goods are in the possession of the Master which are in the possession of his Servant and so here the Master might have had action well enough 8 E. 4. my Servant makes a Contract or â—â—ies Goods to my use I am liable and it is my act By the Court an Inne in London is an Inne and if a Guest be robbed in such an Inne he shall have remedy as if he were Enns per patriam But the cheife point was whether the master shall have the action in the case where the Servant lost the goods and by Jones Justice in 26 Eliz. in C. B. upon the Statute of Hue and Cry it was resolved that if the Servant be robbed the Master may have the Action and so by him
there ought to be a dislike of the Father also and in the Declaration it is also said that she dis-agreed Doderidge agreed with Jones that â—he Declaration is not good and that it is not warranted by the Covenant and that the breach is not well assigned The case is grounded upon the second covenant which consists upon a contingency which contingency is if there happen any discord between the Father and the Son c. the words are joynt and all ought to disagree True it is that in some cases a conjunctive shall be taken for a disjunctive but this is according to the matter and circumstances of the fact but in our case it shall not be taken disjunctively If the Father the Son and the Wife had disagreed then it is cleer that an Action of covenant lies but this is casus omissus and no provision for it Also it is only alledged in the Declaration that she disagreed whereas a mutuall disagreement between all ought to be alledged and therefore Judgement was given Quod quaerens mil. capiat per bellam But all agreed that the Wife might have boarded with Tooker the Father if she would but her new Husband could not AT thowe Sergeant took divers exceptions to an Inditement of forcible entry upon the Stat. of 8. H. 6. against Ployden and others for expelling one Syms from his Copi-hold and the principall exception was because disseisivit was not in the Inditement and in truth it cannot for albeit the Stat. of 21. Jac. cap. 15. gives power to Iudges and Iustices of Peace to give restitution of possession to Tenants for yeares and Copy-holders in which there shal be an entry or detainer by force yet the Stat. does not give an Inditement of forcible entry of copy-hold Noy a Copy-holder shal now have an Iditement of forcible entry but disseisivit shal not be in it for no Iury will find that because it is not possible because a Copy-holder hath no Frée-hold and yet a Copy-holder shall have a Plaint in nature of an Assize against a stranger but not against the Lord And at last the opinion of the Court was that the Inditement was good UPon a Capias directed to the Sheriff of London to take the body of J. S. the Capias was returnable die Jovis which was the day of All-souls and thereupon the Sheriff took the party but he returned that because the return of the Writ was upon a day that was not Dies Juridicus he suffered the party to go at large And the return was holden insufficient for by Doderidge the Writ was good and the taking and detaining of the party by vertue thereof was lawfull but yet he could not have the party there at the sayd day and therefore the Sheriff was compelled to bring the party into Court which the same day he did accordingly The same Term in the same Court A Man granted a Rent charge of 12 l. to one of his Sons out of the Mannor of D. by Déed and died the Grantée lost his Deed the Land is extended to I. D. by vertue of a Recognizance acknowledged by the eldest Son of the Grantor the Grantée sue for his Annuity before the Councell of York to be relieved in equity for that in respect of the losse of the Déed he could not have remedy at the common-Law and J. D. the Conuzée obtained a prohibition out of this Court upon this surmize that although the Councel of York should make a Decree that he should pay the said Annuity yet it should be no discharge for so much against the Conuzor because their Decrée was no legall eviction Now came Smith of the Temple and prayed a Precedendo for the Grantée to the Councel of York and the opinion of the whole Court was that a Decrée there being no legall eviction shall not be a discharge for so much against the Conuzor Doderidge the Grantée of the Rent-charge having now lost his Déed can have no remedy in equity for in this case Equitas sequitur legem and of the same opinion were Jones and Whitlock but by Doderidge which was not denied if the Grantee had lost the Deed by a casuall losse as by firâ— c. in such a case he shall have remedy in equity and he sayd that in the beginning of King James when Egerton was Lord Chancellor there was such a Case in Chancery A Grantee of a rent-seck had seisen of it so that he might have an assize and he devised it to J. S. the Devisée sued in Chancery to have his Rent and seizen of it and he could have no remedy for it in Chancery And this was one Malleryes case The same Term in the same Court ONe Hebborne was indited for stopping a way c. and it was mooved that the inditement was insufficient because it is not layd that it was communis via but only that it was a way to the Church and per Curiam it was good enough and by Jones Iustice the Inditement is good enough although there wants vi armis because he who is supposed to stop the way is owner of the Land The same Term in the same Court AN Action upon the Case upon a promise was brought in the Town of Northampton and the Consideration alledged was that if the Defendant here in the Writ of Errour would discharge Bagnot of Execution c. that then the Plaintiff here in this Writ of Errour promised to pay him eleven pounds and there the Defendant pleaded quod exoneravit illum de Executione relaxavit And Bolstred for the Plaintiffe moved this for Errours that the Plaintiffe in the inferiour Court did not shew by what manner of release it was nor that it was by writing for this being the Consideration upon which the Action is grounded ought to be put in certain Mich. 15. Iac. Staple and King Execution of a consideration ought to be shown 35 H. 6. 19. a discharge ought to be shown in certain 22 E. 4. 43. the Lord Lisles Case and Mich. 16. Iac. in this Court Liverel and Rivets Case which was entred Trin. 16. Iac. Rot. 32â— in an Action upon the Case upon a promise upon issue joyned it was found for the Plaintiffe and it was moved in arrest of Judgement because the Consideration was that the Plaintiffe should discharge one Ogle and he declares that he did discharge him and thereupon he brought this Action and because he declared but generally quod exoneravit the Judgement for that very cause was stayed and 36 Eliz. one covenanted to make an assurance and pleaded generally that he had assured and resolved that it was not good and in Rosse and Harvies Case this Term which was entred Trin. 2 Car. Rot. 1408. In Covenant the Defendant covenanted to give security the Defendant pleaded that he offered security and resolved that it was not good per que c. Jermy for the Defendant that the plea is good enough for a Release by Peroll is sufficient I
Harrison Erringtons case 202p Hebborns case 206p I JEne and Chesters case 151p Jenningâ— Maystâ—â—â— case 102b Jorden Ayliffs case 168b Jenkin and Vivians case 201p K. Kettle and Masons Case 50p King and Berys Case 57p Kellies Case 104p Kirton and Hoxtons case 115p The King and Brigs case 150p Kebles case 18â—b Knights case 187b King Merricks case 2o L Lee and Browns case 128p Lewes and Jeofferies case 153p Lemasons and Dicksons case 189p Laurking and Wylds case 126p Leechford and Saunders case 194b Liverel and Rivets case 206b Lathams case 210b M MIchels case 8b Morgans case 52p Morgan and Tadcastles case 55p Montague and Jeofferies case 108p Mounson and Wests case 110p May and Kets case 129p Middletons case 131p May and Samuels case 134p Mingies case 135p Sir Arthur Mannarings case 145p Morley and Sir Richard Molineuxs case 1â—5p Millen and Fandries case 161p March and Fandries case 161p March and Newmans case 163p Mayor of Maidstons case 180p Mills and Parsons case 199b O OAks and the Lord Sturtonrs case 65b Overton and Sydalls case 120p Old and Estgreens case 160b Owen Wards case 187b P PIgots case 94p Porramor and Veralds case 101p Pollard and Lutterells case 108p Sir John Pools case 128p Powels case 139p Pack and Metholds case 160p Probe and Maynes case 192b Petit and Robinsons case 203p Ployden and Symes case 205p R ROper and Ropers case 106b Robinson Walkers case 127p Rawlinson and Greens case 127p Rones case 133p Richardson and Cabells case 142p Sir George Reynalds case 165p Ryman and Bickleys case 129p Reynor and Hallets case 187p Rochester and Rickhouse case 203p Rosse and Harvies case 206b Risley and Hains case 209p S STocks case 37p Smiths case 53p Southwell and Wards case 91p Sawyer and Hardies case 99p Stainings case 102p Scot and Mainys case 109p Strowd and Wyllis case 114p Southern and Howes case 143p Silvesters case 148p Stone and Withipoles case 152p Sary and Pigots case 166p Sharp and Rasts case 181p Snaggs case 187b Sherry and Richardsons case 15p Smithers case 169b Scheverel Dales case 193p Sanders Meritors case 200p Staple Kings case 206b Savile Wortleys case 207p Sparman Sherwoods case 222p T THompson Traffords case 8p Taunton Raries case 106p Tailours case 133p Thurman Coopers case 188p Talbot and Sir Walters Lacens case 146p Turner and Dennis case 169 V VAughans case 134p W WOod and Downings case 10p Webly and Skinners case 85p Wood and Matthews case 102p Westcot and Cottons case 130p Wrenhams case 135p Wootton and Byes case 136p Wards case 144p Webb and Paternosters case 151p Westermans case 151p Wales case 160p Welden and Bâ—sies case  Wicks case 186b Williams and Vaughans case 186b Willers case 197b Whelhorseys case 208p Woodroof and Vaughans case 210q CASES Reported by S R. JOHN POPHAM Knight Lord chief Justice of ENGLAND In the time of Queen ELIZABETH and written with his own hand in French and now faithfully done into English to which are added some remarkable CASES Reported by other Learned and Judicious Pens since his death Fenner versus Fisher Mich. 34. and 35. Eliz. Reginae in the Kings Bench IN Trespasse brought by Iustice Fenner against Andrew Fisher for a Trespasse done in the Parsonage house of Cravfords in the County of Kent 30. Maij 34. of the Queen the Defendant pleaded that one 〈…〉 was seised of the same Messuage in his Demesne as of see and being so seised the 〈…〉 day of in the same year did demise it to the Defendant for two years from such a Feast then last past by virtue of which he entred and was possessed untill the Plaintiff claiming by colour of a Deed made of the sayd Wrighâ— where nothing passed by the Deed upon which the Defendant entred c. The Plaintiff replies by protestation that the sayd Wrighâ— was not seised as the Defendant hath alledged And for Plea saith that the sayd Wright did not let it to the Defendant as the Defendant hath alledged upon which being at Issue and found for the Plaintif Ackinson moved that Iudgment ought not to be given for the plaintiff because that he hath not made any Title by his Replication for by 9 E. 4. 49. In Trespasse the Defendant pleads in Bar and gives colour to the Plaintiff it is taken for a Rule that the Plaintiff ought to make Title Cook answered that he needs not to make Title in this case but that it sufficeth to traverse the Bar without making a Title and sayd that in 22 E. 4. Fitzh Trespass It is adjudged that in Trespasse the Plaintiff may traverse the Bar without making Title in his Replication and here in as much as it is acknowledged by the Defendant that Wright did demise it to the Plaintiff and that this is a Lease ta will at the least not defeated by his own shewing but by the Lease made to Defendant this being traversed and found against the Defendant The Plaintiff by the acknowledgment of the Defendant himself hath a good Title against him to enter into the Land and by it the Defendant by his Re-entry is become Trespassâ—â— to the Plaintiff and he sayd that in 2 E. 4. fol. In Trespasse where the Defendant pleads that he let the Land to the Plaintiff for another mans life and that he for whose life it was was dead upon which he entred and it is adjudged that it sufficeth for the Plaintiff to maintain that Cestuy vie was yet living without making any other Title And yet these reasons Cleoch and Gawdy held the Replication good to which Popham sayd that we as Iustices ought not to adjudge for the Plaintif where a good formall bar is pleaded as here it is But wherby the Record it self which is before us we cannot see that the Plaintiff hath good cause of Action And therefore I agree that in Trespasse in some cases the Plaintiff may traverse the Bar or part of it without making any other Title then that which is acknowledged to the Plaintiff by the Bar but this alwaies ought to be where a Title is acknowledged to the Plaintiff by the Bar and by another means destroy by the same Bar for there it sufficeth the Plaintiff to traverse that part of the Bar which goeth to the destruction of the Title of the Plaintiff comprised in the Bar without making any other Title but if hee will traverse any other part of the Bar he cannot do it without making an especiall Title to himself in his Replication where by the Bar the first possession appeareth to be in the Defendant because that although the Traverse there be found for the Plaintiff yet notwithstanding by the Record in such a Case the first Possessions will yet appear to be in the Defendant which sufficeth to maintain his Regresse upon the Plaintiff and therefore the Court hath no matter before them in such a Case to adjudge for the Plaintiff unlesse in cases
resolved by all the Iustices as he said that it shall passe and he said that himself was of this opinion also And to say that by grant of Land at Common Law the use had been raised out of the possessions of the Land which the Grantor then had and by it passe to the Bargainee and that it shall not be raised and passed to another by grant of Land in consideration of marriage which is a more valuable consideration then money is absurd and against all reason And for the solemnity Vses in such cases in respect of marriage were the cause that they alwaies were left as they were at Common Law and not restrained as the case of bargain and sale is which by Common intendment may be made more easily and secretly then that which is done in consideration of marriage which is alwaies a thing publike and notorious but it is not reasonable that every slight or accidentall speech shall make an alteration of any Vse As if a man ask of any one what he will give or leave to any of his Sons or Daughters for their advancement in marriage or otherwise for their advancement this shall be but as a bare speech or communication which shall not alter or change any Vse But where there is upon the Speech a conclusion of a Marriage between the friends of the parties themselves and that in consideration therof they shall have such Lands and for such an Estate there the Vse shall be raised by it and shall passe accordingly to the parties according to the conclusion which Fennor granted But by Popham If it may be taken upon the words spoken that the purpose was to have the Estate passe by way of making of an Estate as by way of Feoffment c. then notwithstanding the consideration expressed the use shall not change nor no Estate by it but at will untill the Livery made therupon And therfore if a man make a Deed of Feoffment with expresse consideration of marriage although the Deed hath words in it of Dedi Concessi with a Letter of Attorney to make Livery therupon there untill Livery made nothing passe but at will because that by the Warrant of Attorney it appeareth the full intent of the parties was that it shall passe by way of Feoffment and not otherwise if it be of Land in possession And if it be of Land in Lease not untill Attornment of Tenants which was granted by all the Iustices But if a man in consideration of money makes a Deed of Gift Grant Bargain and Sale of his Lands to another and his Heirs by Deed indented with a Letter of Attorny to make Livery if Livery be therupon made before Inrolement there it hath been adjudged to passe by the Livery and not by the Inrolement But by Popham where Land is to passe in possession by Estate executed two things are requisite The one the grant of the said Land the other the Livery to be made therupon for by the bare Grant without Livery it doth not passe as by way of making of an Estate And this is the cause that such solemnity hath been used in Liveries to wit if it were of a Messuage to have the people out of it and then to give Seisin to the party by the Ring of the door of the House and of Land by a Turff and a Twig and the like which may be notorious Yet I agree it shall be a good Livery to say to the party Here is the Land enter into it and take it to you and your Heirs for ever or for life or in tail as the case is And albeit Livery by the View may be made in such manner yet by the sealing of the Deed of Grant upon the Land or by grant of it upon the Land without Livery nothing passe but at will But if therupon one party saith to the other after the Grant or upon it Here is the Land enter upon it and take it according to the Grant this is a good Livery But he ought to say this or somthing which amounts to so much or otherwise it shall not passe by the bare Grant of the Land although it be made upon the Land Clench said That when Thomas said to Eustace Stand forth here I do give to thee and thine Heirs these Lands this amounts to a Grant and a Livery also and by the words of the Reservation of the Estate to himself and his wife for their lives in this the Law shall make an use in the said Thomas and his wife for their lives so that by such means it shal enure as if he had reserved the use therof to him and his wife and so it shall enure to them as it may by the Law according to his intent without doing prejudice to the Estate passed to the said Eustace And afterwards Term Mich. 36 37 Eliz. the Case was again disputed amongst the Iustices and then Popham said That the Case of Baâ—gains and Sales of Lands in Cities as London c. as appeareth in Dyer 6. Eliz. are as they were at Common Law To which all the Iustices agreed and therfore shall passe by Bargain by parole without writing And by Bayntons Case in 6 7 Eliz. it is admitted of every side that an Vse was raised out of a Possession at Common Law by Bargain and Sale by parole and otherwise to what purpose was the Statute of Inrolements and by the same case it is also admitted now to passe by parole upon a full agreement by words in consideration of Marriage or the continuance of Name or Blood For it is agreed there that the consideration of nature is the most forceable consideration which can be and agreed also that a bare Covenant by writing without consideration will not change an Vse therfore the force therof is in the consideration of which the Law hath great respect And therfore the Son and Heir apparant ex assensu patris onely may at the door of the Church endow his wife of his Fathers Land which he hath in Fee and this is good by Littleton although the Son hath nothing in it wherby an Estate passe to the wife which is more then an Vse Nature is of so strong consideration in the Law And therupon after advice Iudgment was given for the Plaintiff the Roll of this appeareth in Banco Regis 1 Hill 35. Eliz. Rot. 355. And upon this Iudgment a Writ of Error was brought and the Iudgment aforesaid reversed in the point of Iudgment in the Exchequer by the Statute of 27 Eliz. Kettle versus Mason and Esterby 6. IN a second deliverance between Joh. Kettle Plaintiff and George Mason Vide this case Coke lib. 1. 146 c. and Francis Esterby Avowants the case appeared to be this Thomas May was seised of the Mannor of Sawters and Hawlin in the County of Kent in his Demesne as of Fee and being so therof seised enfeoffed Thomas Scot and John Fremling and their Heirs
to Charles late Lord Sturton Father to the said Iohn Lord Sturton and the said Charles Lord Sturton disseised the said Lady Sturton and levied a Fine of the said Land to Cottington and his Heirs with Proclamations according to the Statute and warranted it against him and his Heirs And the said Lord Charles dyed before the Proclamations past and the Warranty descended upon the said John Lord Sturton after which and before the Proclamations past the said Lady Sturton entred upon the said Cottington after which the said Lady died and after her death and all the Proclamations past the said John Lord Sturton as Heir in Tail entred and made the Lease to the said Okes upon whom Cottington the Defendant entred as under the right of the said Cottington the Conusee And I perceiving the Court strongly to incline upon the matter of Warranty that it shall bar the entry of the Heir and make a discontinuance against him according to the inference which is taken by Littleton in his Chapter of Discontinuance because the truth was and so acknowledged to the Court although it were omitted in the Verdict that the said Charles Lord Sturton was attained of Felony and Murther and so the blood corrupted between the said Charles and John Lord Sturton wherby in a new Action the Garranty had not hurt the Title of the said Lord John I then moved the Court upon the other point of the Fine with Proclamations and the Court also agreed in this point if the Warranty had not been that yet the Fine with Proclamations shall bar the said John Lord Sturton notwithstanding the entry made by the Lady Sturton were before the Proclamations past because that notwithstanding his regresse made the Reversion remains in Cottington not defeated by his regresse in respect of the Statute whch makes that the Fine remains effectuall against the Heir in Tail if nothing be done by him to undo it before the Proclamations past as by claim regresse and the like but the Act of a stranger shall not help him wherby Iudgment being therupon given against the said Okes the said John Lord Sturton stood satisfied and the Cottingtons enjoy the Land to this day wheras if this opinion of the Court had not been on a new Action the said Sir John might have been relieved against the Warranty And Gaudy said that this was a very good Case for the point upon the Statute in this case Earl of Shrewsbury versus Sir Thomas Stanhop 8. GIlbert Earl of Shrewsbury brought a Scandalum Magnatum against Gilbert Earle of Shrewsbury against Sir Thomas Stanhop in a Scandalum Magnatum Sir Thomas Stanhop Knight and it was upon the Statute Tam pro Domina Regina quam pro seipso c. For that communication was had between the said Sir Thomas and one Francis Fletcher of divers things touching the said Earl the said Francis at such a day and place said to the said Thomas My Lord the said Earl meaning is a Subject innuendo that the said Earl was a Subject of the now Queen the said Sir Thomas then and there said of the said Earl these slanderous words to wit he intending the said Earl is sorry for that meaning that the said Earl was sorry that he was then a Subject to our said Soveraign Lady the Queen that is his grief meaning that it was grief to the said Earl that the said Earl was Subjâ—ct to the Queen to the damage of the said Earl of 20000 l. To which the said Sir Thomas Stanhop said that a question was formerly moved between the said Earl and the Defendant touching the subversion and drawing away of certain Weares heretofore erected by the said Sir Thomas at Shelâ—ord in the said County of Nott. where the Action was brought to oust the River of Trent there that for the subversion therof a Petition was exhibited to the privy Councell of the Queen before the speaking of the said words by certain Inhabitants of the County of Lincoln and divers other places not known to the Defendant with the privity allowance and knowledge of the said Earl which Petition at the time of the speaking of the said words depended before the said Councell not determined wherupon at the day and place comprised in the Declaration there was Communication between the said Defendant and the said Francis Fletcher concerning their purpose to have the said Wears subverted and touching the said Petition upon which the said Francis said to the said Defendant the matter meaning the Petition aforesaid hanging undetermined before the Councell aforesaid is to be heard before the privy Councel meaning the aforesaid Councell of the Queen and what their Honours meaning the Councell aforesaid determine my Lord the aforesaid Earl meaning will willingly obey To which the said Francis then there answered saying My Lord the aforesaid Earl meaning is a Subject upon which the said Defendant they then having speech as well of the said Petition as of the order therupon to be taken by the said Councell answered saying the words comprised in the Declaration meaning that he was sorry and grieved that he was subject to the order to be made upon the Petition aforesaid by the said Councell and averred that this was the same speech upon which the Action was grounded upon which it was demurred in Law and for cause shewn according to the Statute it was alledged that the bar was defective because it is not alledged at what place nor by whom nor against whom the Petition was exhibited and also because that by the Bar the matter of the Declaration is not confessed avoided or traversed and also that the Bar was insufficient And it seemed to Fennor that the matter of the Bar had been sufficient if it had been well pleaded but the Plaintiff alledgeth the words to be spoken in one sence in the Affirmative and the Defendant shews matter also in the Affirmative which proves the words to be spoken in another sence then the Declaration imporrs and two Affirmatives can never make a good Issue and therfore the Defendant ought to have taken a traverse to that which is comprised in the Declaration and for want of this traverse the plea in Bar is not good Gawdy said that the Bar is not sufficient neither in matter nor form not in matter because that wheras Fletcher said that the said Earl was a Subject this can have no other sence but that he was a Subject to the Queen in his Allegiance and her Soveraignty and so much is drawn out of the course of their former speech and therfore the answer which the Defendant made to it refers to his subjection of alleagiance and not to the matter of obedience which he owed to the order of the said Councell and if it cannot have any other sence in good understanding he cannot help himself now by an Innuendo which is in it selfe according to common intendment contrary to that which the nature of the words
the Causa Matrimonii prolocuti which as they pretend ought to prove that there was a trust at Common Law And the other the Statute of Marlbridge that the Lord in case of Wards against Feoffments made by Collusion which Feoffments they alledge prove that a trust then was To which it was said that the gift made by a woman to another to the intent that he shal marry her hath in it a Condition more properly implied to wit that if he doe not marry her that she shall have her land back againe for which the Common Law gives her remedy by the Action aforesaid for if it had been but a trust no remedy had been by the Common Law And for the Statute of Marlbridge the contrary therunto is manifestly proved for the Statute speaks but of Feoffments made to Heirs apparants or upon Condition or to the intent to enffeoff the Heir at his full age or the like in which cases the use alwayes goes with the Possessions and is not to the Feffor And the Statute of 4. H. 7. was made in vaine which gives the Wardship of Cestuy que use where no Will is declared which had not been needfull if Feoffments within the Statute of Marlbridge had been said to have been to Uses And without doubt if those who made the Statute of Marlbridge had then had knowledge of these Feoffments to Uses which were so mischievous and more then the other Feoffments by Collusion they then would have provided remedy for these cases of Uses Also the Statute de Religiosis ordains that Nec arte nec ingenio Lands shal not be conveyed in Mortmain and therby it was conceived that a full provision had been made against these Mortmains and yet in 15 Rich. 2. Provision was made against Uses conveyed in Mortmain to Religious or other Corporations of which they took the Profits And without doubt those who were so precise in the making of the Statute of Religiosis against Mortmains would also have made provision for the uses if they had then been known But to cleer this point without all controversie the Statute it self of uses 27 H. 8. makes it plain which saith expresly that by the Common Law of the Realm Lands or Tenements ought not to passe from one to another without solemn Livery matter of Record or writing and that these Feoffments to uses were Errors used and accustomed within the Realm to the Subversion of the ancient Laws therfore it stands not with the ancient Common Law of the Realm as all the Parliment took it which is more to be regarded then any Book vouched But see how and when they began and crept in at Common Law and it shall be easily perceived as it hath been well said by some of those who argued to this point at the beginning that they began by two means to wit by fraud and by fear And he said that the first Book which he had seen in all the Books of the Law which tend to an use is the case of 8. Assise which makes mention that the Counsee of a Fine entred into the Land in the right of another which is to be taken to anothers use And in the Quadragessimâ—s of Edw. 3. mention is made of the Feoffees of the Lord Burglash who sued to the King by petition and by the Statute of 50 Ed. 3. cap. 6. mention is made that divers gave their Lands to their Friends to have the profits and afterwards fled to priviledged places and lived there to the hinderance of their Creditors And therfore it was provided that in such a case execution shall be made as if no such assurance had been made And by 2 Rich. 2. these are called Feoffments to uses and made by craft to deceive Creditors and there is the first mention which is made in any Statute of the word Use So fraud hath been alwaies the chief foundation of these Vses yet in time they began to have some credit in the Law And this was when men saw that the Court of Conscience gave remedy in these cases against such who had not the conscience themselves to perform the trust put in them and to take away the danger which hapned to an infinite number of good Subjects upon the Garboyls which hapned between the time of E. 3. and that of King H. 7. caused that in effect all the Possessions of the Realm were put in Feoffments to uses And the first case in the Law which speaks of this word Use which he ever saw was as he said in 5 H. 4. And in the like case by Gascoign 7 H. 4. no remedy is given by the Law for Cestay que use and afterwards it crept into the Law as appeareth yet as an Error of long time used And if before the Statute of 27 H 8. a Lease had been made for life the remainder in Fee to the use of B. for life the remainder to the use of the first Son of the said B. and so further as here If the Tenant for life had made a Feoffment in Fee to a stranger and had not given the stranger notice of the Use and all this were without consideration and afterwards he in the Remainder in Fee to the Use had released all his Right to the said stranger every one of them had been hereby without remedy for their Uses Were the Son of B. born before or after this wrong done So if it were at Common Law before this Statute as hath been weâ—l said and the Law being so before this Statute then he said it was to be seen what was to be done in the case after the Statute which will stand altogether upon this what will become of these contingent Vses to the Sons not born at the time of the said Feoffment made by Sir John Saintleger and his Co-feoffees by this Statute of 27 H. 8. and it seems to him cleerly that no possession is executed to any contingent use by this Statute untill it comes in being and that as the case is here and in some other speciall cases it shall never be executed And one cause why such a contingent Vse shall not be executed is because it doth not stand with the letter of the Law but rather is against the letter Another cause is because it is utterly against the intent of the Law to execute it as the case is here It doth not stand with the Letter of the Statute for this is Where any person or persons stand seised to the use of any other person or persons c. And it is cleer that none can stand seised to the use of him who is not neither can he who is not in rerum natura have any use therfore the case here doth not stand with the letter of the Statute to be now executed And further the words following are that in every such case every person who hath such an Use in Fee-simples Fee-tail for life for years c. or otherwise in Remainder or
effect by the very rules of Littleton And by 27 H. 7. which is That a Remainder cannot be unlesse there be an Estate upon which it may have dependency which there it cannot but in the case of a Disseisin made to a particular Estate it is otherwise because there the Estate remains in right And to say that it shall not be a Forfeiture because the Feoffment was made to Christopher who then had the Fee-simple which was limited to the right Heirs of Sir Richard Chudleigh this is not so for by 41 E. 3. The Tenant for life himself who also had a Remainder in Fee-simple in himself depending upon a mean Estate-tail in another made a Feoffment and by it committed a Forfeiture to him in the Remainder in tail But if Tenant for life Remainder in tail Remainder in Fee enfeoff him in the Remainder in tail this is a Surrender of his Estate for the immediate Estate which was in him wherupon this Term Judgment was given in the Kings Bench for Fraine the Defendant against Dillon who was Plaintiff And it is entred Hill 31 Eliz. Rot. 65. Baynes Case 10. AT the Sessions holden at Newgate presently after this Term the case was this one Baines with another came in the night time to a Tavern in London to drink and after they had drunk the said Baynes stole a cup in which they drunk in a Chamber of the same House the Owner of the said House his Wife and servants then being also in the House and the cup being the Owners of the said Tavern wherupon he was indited and committed Burglary this matter appeared in the Inditement and agreed by Popham Anderson and Periam with the Recorder and Serjants at Law then being there that this was not Burglary and yet it was such a Robbery whereby he was ousted of the benefit of his Clergy by the Statute of 5. E. 6. Cap. 9. and was â—anged 11. ANd at the Sessions then next ensuing 〈◊〉 holden upon one who had stolen a silver Bason Ewer of the then Bishop of Worcester the sale made openly in the day in a Scriveners shop in London to a stranger the question was demanded of the Court whether the property were changed by this Sale so that the Bishop shall not have his Plate againe because it was alledged that they prescribed that every one of their shops in London are good Markets overt through all London every day in the week but Sunday But agreed by Popham Egerton Anderson Brian and others skilfull in the Law then being there that such a generall custome is not good and that this Sale made there albeit it were openly in the shop so that every one passing by In which case Shops in London are Markets Overt what not might see it shall not bind the property as it shall doe in Market overt for a Scriveners Cutlers Shop or the like is not proper for the Sale of I late nor a place to which men will go to seek for such a thing lost or stole But a Goldsmiths Shop is the proper Shop for it as the Drapers Shop is for Woollen cloath or the Mercers Shop for Silk and the like and to such men will go to seek for things of the like nature that are lost or stolen and not to a Scriveners Shop or the like And they agreed also that a private Sale made in the Shops which are proper to the nature of the thing sold so that the Passers by cannot in reason see it in their passage cannot bind for reason upon which the Law is founded will not admit any such custome Hillary Term 37 Eliz. in the Kings Bench. Westby versus Skinner and Catcher 1. IN Debt by Titus Westby Plaintiff against Thomas Skinner and John Chatcher late Sheriffs of London Defendants for 440 l. upon Nihil debet pleaded and a special Verdict found the Case appeared to be this See this case in Coke 3. Report fol 71. 6. to wit One Anthony Bustard with others were bound in a Recognizance in the nature of a Statute-staple of 440 l. to the Plaintif wherupon the Plaintif sued Execution out of the Chancery against the said Anthony and the other that were bound with him for the Bodies Goods and Lands of the said Obligers which writ of Execution was delivered to the said Defendants the 8th day of Prisoners in execution to be delivered over to the new Sheriff by Indenture and all the executions to be therin moved September 30. Eliz. the Defendants then being Sheriffes of London and the said Anthony being then in Newgate in Execution in the custody of the said Defendants for 240 l. at the suit of one Robert Deighton and that afterwards to wit the 20 th day of October in the same yeer the said Defendants were discharged and removed from their said Offices and Hugh Offeley Richard Saltonstall were then made Sheriffes of London and that the said Anthony being in Execution for the one and the other debt the said Defendant the said 20th day of October by Indenture delivered the said Anthony to the said new Sheriffes in Execution for the said debt of the said Robert Deighton not giving them any noâ—ice of the said Execution made for the Plaintiff and suffered the said Anthony to goe at large And whether the Defendants shall be charged for this escape was the question And the escape was alledged by the Declaration to be suffered by the said Defendants the said 20. day of October 30 Eliz. and it was moved by Tanfield that the new Sheriffs ought to take notice of their Prisoners remaining in the Goal at their coming into their Office at their perill and ought to enquire and search for the causes that then were in custody and not to deliver them of their own head without due course of Law And he put the case That if the old Sheriff had been dead in the mean time before the new Sheriffs had been made shal this be an excuse to the new Sheriffs that they had no notice for what cause this Anthony had been in Prison if they suffer him to escape And he said that it shall not no more here but per Curiam the new Sheriff shall not be charged with this Escape as to the 440 l. of which they had no notice for if this case which was private in the knowledge of the ancient Sheriff only upon a Writ directed to them at the suite of any party the new Sheriffs cannot by intendment have any knowledge unlesse it be given to them by the old Sheriffs to whom the Writ of Execution was directed and delivered And the case of one Dabridgecourt who was Sheriff of Warwick and had one in Execution whom he kept in a private Prison by himself for all his Executions in the Town of Warwick and when he was discharged of his Office and a new Sheriff made Dabridgecourt said to the new Sheriff That he had such a one in Execution
same Deed granted and confirmed to the said Sir Maurice and to the Heirs Males of his body the said Lievtenant-ship and Deputy-ship of the said West part of the said Forest and also the Keeper-ship of the said Walk called Staverdale Walk together with the Lodges c. Provided alwaies and the said Sir Maurice covenanted and granted for him and the Heirs Males of his body with the said now Earl his Heirs and Assigns that it shall be lawfull for the said Earl his Heirs and Assigns to have all the Preheminence or commandment of the said Game and Hunting and pleasure there as if this Grant had not been made Provided also and the said Sir Maurice covenanted granted and promised for him and the Heirs Males of his body to and with the said Earl his Heirs and Assigns that the said Sir Maurice and the Heirs Males of his body and their Assignee and Assignees will preserve the Games as fair as it commonly hath been used and that neither the said Maurice nor any of the Heirs Males of his body nor any of their Assignees will cut any manner of Wood growing upon any part of the Premisses unlesse for necessary Brouse and such as they may lawfully cut of their own and as was accustomed c. after which Sir Maurice died and Sir Henry Barkley his Son and Heir Male cut four Okes within the said Walk called Brewicks growing upon the soile of the Queen there every one of them being Timber and of the value of 13 s. 4 d. and converted them to his own use And whether by this act done by the said Sir Henry the now Earl of Pembrook may re-enter into the things granted by him was the question which stands upon two points the first Whether the last Proviso makes a Condition or be but a meer Covenant 2. Whether this Act makes a Forfeiture of the said Offices granted as before by the course of the Common Law Gaudey Clench Walmsley and Beamont that the first Proviso is not a Condition either because he is not by this to do more then he may do by his superior custody in which case he ought to do it by his own authority as to take his fee Deer or to chase and kill Deer by Warrant and the like or otherwise if it shall be taken that he may by this Proviso kill or chase the Game at his pleasure it is void because as to it he is to do that which he ought not to do by his Office to wit to destroy the Game which by his Office he is to preserve and therfore for the first it stands meerly upon the Covenant Then when he saith further in the second clause Provided also and the said Sir Henry Barkley covenants this is to be intended that it shall be as the other for the word also and this is but a bare Covenant as the first was And they said further that this last Proviso shall be said entirely the words of the Grantee himself as the Covenant is and without words of the Grantor a Condition cannot be for it is for him to condition with the Estate given and not for him to whom the Grant is made And therfore suppose that it had been on the other part to wit Provided alwaies and the Grantor covenant that the Grantee shall have the refuse of the brouse and the like this shall not be said to be any Condition but a meer Covenant In like manner shall it be on the other part And further it is common for Scriveners and ignorant persons to make in effect every Covenant to begin with a Proviso in this manner and therfore to expound such a manner of Proviso as a Condition it shall be too perilous to the Estates of men And for the case upon the Lease made by Serjeant Bâ—â—dloes which was thus Provided alwaies and it was covenanted granted and agreed between the parties if the Lessee sell or alien the term that the Lessor shall have the preferment This they agreed to be a good Condition as was adjudged in the Common Bench 32 Eliz. but the case there is because they are the words as well of the Lessor who may add a Condition to the Estate as of the Lessee who made the Covenant which is not here But they said that the case between Hamington and Pepull which was 17 Eliz. in the Kings Bench was more nigh in resemblance to the case in question which was that the said Pepull made a Lease for years to Hamington of a Farm except the wood and covenanted with the Lessee that he shall take all manner of under-wood provided alwaies and the Lessee covenant that he will not cut any manner of Timber-tree this was adjudged no Condition And as to the other point they said that the cutting of Trees by him who had the custody of the Forest is not a forfeiture of his Office by the Common Law as it is of him who hath the custody of a Park for there is another speciall Officer who hath the charge of wood in a Forest to wit the Verderer and the Woodward and therfore it is no forfeiture of him who hath the custody of the Forest to cut Trees for he hath another charge to wit the custody of the Game only and not of the Wood. And further the cutting of one or two Trees is no cause of forfeiture for it may be that there is Covert-shade and brouse sufficient of that which yet remains in which case it is no forfeiture if it be not averred that these things are impaired by it But the chief Iustices chief Baron and all the other Iustices and Barons were of a contrary opinion And for the matter of forfeiture at Common Law they said that it was a cause of forfeiture of an Office at common Law to cut the Trees as well in the case of a Forester as in case of a Park-keeper for the Forester hath not only the charge of the Game but of all that is within the Forest by which the Game is fed preserved or succoured and they are fed by the brouse and succoured by the shade and have the calmer and better lodging by reason of the Trees and therfore by their Office they are to have a care of these things as well as of the Game for without these the Game cannot stand as to say that there are others who have speciall charge of the Wood and Pasture as the Woodward or Agister c. this is no proof that the Foresters or Keepers are discharged therby And the Foresters and Keepers are by their Offices to present the Misdoers in the Woods within the Forests of the Wood-wards and therfore they have to do with it And by Carta de foresta none may cut his wood within his Forest Nisi per visum Forestraii ergo the Foresters have charge therof And every voluntary act done by an Officer contrary to that which belongs to his Office is a forfeiture of his Office as by
Co. lib. 8. Baspoles case and 7 H. 6. 40. accordingly The same Term in the same Court Vaughans Case THomas Dedham had to Apprentice one Holland who got his Main with Child and afterwards departed from his Masters Service and staid a whole night with Vaughan his Kinsman and Dedham procured a Warrant from S. Stephen Soame a Iustice of Peace that the Constable should bring the said Apprentice to order according to Law and because that Vaughan perswaded him to withdraw himself so that he should not be taken by virtue of the Warrant he was indited And it was agreed that it was lawfull for Vaughan to lodge and relieve him albeit he knew his misdeeds they being no Treason or Felony But Haughton Iustice took exception to the Inditement because no place appeared where he perswaded him to withdraw himself from the Warrant or in truth that he did hide himself from the Warrant for if he did not so the perswasion was nothing And Doderidge took another exception to the Warrant because the Statute saith that two Iustices of which one of them shall be of the Quorum shall proceed in such cases against the Malefactor and that they shall compell the party to allow means for the education of the Infant or otherwise the Offendor shall suffer corporall punishment and so this Warrant not being speciall according Pasch 16. Jac. In the Star Chamber Wrennums Case SIr Henry Yelverton Attorney-generall exhibited an Information in the Star Chamber against one Wrennum Ore tenus because he had divers times petitioned the King against Sir Francis Bacon Lord Chancellor pretending that the said Lord Bacon had done great Injustice to him in granting an Injunction and awarding Possession of Land against him for which he had two decrees in the time of the former Chancellor And also he made a Book of all the proceedings in the said cause between him and one Fisher and dedicated and delivered it to the King in which he notoriously traduced and scandalised the said Chancellor saying that for this unjust decree he his Wife and Children were murthered and by the worst kind of death by starving And that now he having done unjustly he must maintain it by speaking untruths and that he must use his authority Wit Art and Eloquence for the better maintenance therof with other such like scandalous words And the Attorney cited a president 2 Jac. Where one Ford for an offence in the like manner against the late Chancellor was censured in this Court that he should be perpetnally imprisoned and pay the fine of 1000 l. and that he should ride upon a Horse with his face to the tail from the Fleet to Westminster with his fault written upon his head and that he should acknowledge his offence in all the Courts at Westminster and that he should stand there a reasonable time upon the Pillory and that one of his ears shall be cut off and from thence shall be carried to Prison again and in the like manner should go to Cheapside and should have his other ear cut off c. And because they conceived that the said Wrennum had wronged the said Lord Chancellor in the said suggestion they all agreed in his censure according to the said President See for such matter 19. Ass 5. 9 H. 8. Sir Rowland Heywards case and 21 H. 8. Cardinall Wolseys case The same Term in the Kings Bench. Mingies Case AWrit of Annuity was brought by Mingy which was granted Pro Consilio impenso impendendo the Defendant pleaded in Bar that he carried a Bill to the Plaintiff to have him set his hand to it and because he refused Annuity pro Consil impenso c. he detained the said Annuity And per Curiam this is no plea for he is bound to give advice but not to set his hand to every Bill for this may be inconventent to him The same Term in the same Court THe Case was this A Lessee for years was bound in a Bond to give up the possession of the Land demised to the Lessor or his Assigns at the end of the Term the Lessor assigns over his Interest and the Assignee requires the Lessee to perform the Condition who answers that he knew not Notice where requisite whether he were the Assignee and therupon refuseth And the question was whether he had broken the Condition and it was adjudged that he had for he hath taken upon him so to do and it is not like a Condition annexed to an Estate as Co. lib. 5. Mallories case or Co. lib. 6. Greens case where the Patron presented his Clark to a deprivation yet the Ordinary ought to give the Patron notice of the deprivation for it is a thing Spirituall of which a Lay-man shall not be bound to take notice It was moved that a man riding upon a Horse through the water was Dead and. drowned and by the Coroners Inquest it was found that his death was caused Per cursum aquae and the Horse was not found a Deodand and per Curiam they did well for the water and not the Horse was the cause of his death The same Terme in the same Court. Wooton versus Bye THe case was this A man made a Lease for years rendring Rent and upon payment of the Rent the Lessor made an Acquittance by a release of all Actions Duties and Demands from the beginning of the World to Release of all Demands bars a future Rent the day of the date And whether the Rent to come were released by it was the question And it was moved by Crook at the Bar that it was not for a Covenant in future shall not be released by such words yet a release of all Covenants will be good in such a case as the Book is in Dyer 57. so Hoes case Co. lib. 5. 70. b. such a release will not discharge a Bail before Iudgment But it was answered and resolved by the Court that such a Release will discharge the Rent to come for this word Demand is the most large and ample word in a Release that may be as Littleton saith and in Co. lib. 8. Althams case and in Hoes case Co. lib. 5. one was Bail for the Defendant the words wherof are conditionable Scil. Si contigerit predict defendent debit damna illa prefat Quer. minime solvere c. So that before Iudment it is altogether incertain and therfore cannot be released but in the case at the Bar he hath Jus ad rem though not in re as Crook Iustice said The same Term in the same Court. Bret versus Cumberland IN a Writ of Covenant the case was thus Queen Elizabeth by her Letters Patents made a Lease of certain Mills rendring Rent in which Lease were these words to wit That the said Lessee his Executors Administrators and Assigns should from time to time repair the Mills and so leave them at the end of the Term the Lessee assigns over his Term the Queen also
own land as in another mans so the Warren hath existence notwithstanding the unity Dyer 326. Where the Queen was seised of Whaddon Chase and the Lord Gray was Lievtenant there in Fee and he and his Ancestors and their Keepers had by prescription used to hunt wandring Deer in the Demesns of the Mannor of S. adjoyning as in Purlieues the Mannor of S. comes into the Queens hands who grants this to Fortescue in Fee with free Warren within the Demesns c. it was holden that the unity doth not extinguish the Purlieu Dyer 295. Two Closes adjoyn the one by prescription is bound to a Fence the Owner of one purchase the other and suffer the Hedges to decay and dies leaving two Daughters his Heirs who make partition Quaere whether the prescription for the Inclosure be revived true it is that it is made a quaere but he saith see the like case 11 H. 7. 27. of a Gutter which proves our case as I will shew afterwards For the Minor proposition that the watering hath being notwithstanding the said unity I will prove it by 12 H. 7. 4. A Precipe quod reddat of Land Aqua Co-opert Mich. 6. Jac. Challenor and Moores case An Ejectione firmae was brought of a Watering-course and there resolved that it does not lye of it because it is not firma sed currit but of Terra aqua co-operta it doth lye Also I will take some exceptions to the Bar there is no Title in the Bar for the Defendant Pigot and so we being in possession albeit in truth we have no Title yet he who hath no Title cannot oust us neither can stop the said Water-course and it is only shewn in the Bar that Searles entred and enfeoffed Pigot but for any thing as yet appears the true Owner continued in possession 21 Jac. C. B. Cook against Cook in a Writ of Dower the Defendant pleads an Entry after the Darrein continuance and doth not plead that he ousted him and upon this the Plaintiff Demurs and there adjudged that it is no plea in Bar because he doth not say that the Defendant entred and ousted the Tenant 2. Exception the action is brought against four Scil. Pigot Cole Branch and Elyman and Pigot hath conveyed a Title from Searles the three other Defendants justifie but Pigot doth not say any thing but that Searles enfeoffed him 7 H. 6. an action of Wast is brought against many one answers and the other not this is a discontinuance And for the principall matter I will conclude with 11 H. 7. 25. Broo. Extinguishment 60. Two have Tenements adjoyning and the one hath a Gutter in the others Land and afterwards one purchase both and then he alien one to one and another to another the Gutter is revived notwithstanding the unity because it is very necessary and so he prayed Iudgment for the Plaintiff Bear for the Defendant I in a manner agree all the cases which have been put on the other side and I conceive that the Water-course is not Stagnum but Servitium which is due from the one land to the other It is but a liberty and therfore I agree Challenors case which is but a liberty that an Ejectione firmae doth not lye of it but Ejectione firmae lies De stagno For the first exception I answer and confesse that to alledge an Entry after the Darrain continuance without alledging an Ouster of the Tenant cannot abate the Writ for the Defendant may enter to another intent as appeareth in the Commentaries and with the assent of the Tenant But here it was alledged that a Feoffment was made and a Livery which implies another For the matter in Law I conceive that the Water-course is extinguished and it may be compared to 21 E. 3. 2. The case of a way which is extinguished by unity of possession Hill 36. Eliz. Rot. 1332. Hemdon and Crouches case Two were seised of two severall acres of Land of which the one ought to inclose against the other one purchase them both and lets them to severall men and there the opinion was and adjudged accordingly that the Inclosure is not revived but remains extinguished 39 Eliz. Harringtons case the same thing resolved and albeit in Dyer 295. is a quaere yet the better opinion hath been taken according to these resolutions H. 4. Jac. Jordan and Ayliffes Case when one had a way from one acre to another and afterwards he purchased the acre upon which he had the way and afterwards sold it and in that Case the opinion of 3. Iustices was that the way was extinguished also 11 H. 4. 50. and 11 H. 7. 25. prove this case for the said case is compared to the custome of Gavelkind and Burrough English and there the quaere is made whether by the custome it be revived and if it be a custome which runs with the Land the unity of possession doth not extinguish it Co. lib. 4. Terringhams case and 24 E. 3. 2. common appendant is destroyed by unity of possession and yet it is a thing of common right but a Water-course being a thing against common right a fortiori it shall be extinguished Now I will take some exceptions to the Declaration 1. Because he hath laid a prescription for a Water-course as to say that it was belonging to a Rectory to which c. and this is a good exception as appears by 6 E 6 Dyer 70. Ishoms case where exception was taken that before his prescription he doth not say that it was Antiquum parcum which exception as it is there said was the principall cause that Iudgment was given against him and also as the case is here it ought to be a Rectory impropriate and this cannot be before the time of H. 8. which is within time of memory for before the said time no lay person could have a Rectory impropriate and therfore I pray Iudgment for the Defendant Barksedale said that the prescription is well laid and that he would prove by 39 H 6. 32. and 33 H. 6. 26. and per curiam the prescription is good enough and albeit it is not said that it is Antiquae Rectoria yet it is well enough Mich. 1 Car. at Reading Term in Broek and Harris case he doth not say that it was Antiquum Messuage and yet resolved good Doderidge the case of 6 E. 6. differs in this point from this case for a Rectory shall alwaies be intended ancient and so is not a Park for this may be newly created and he put this case suppose I have a Mill and I have a Water-course to this in my own land and I sell the Land I cannot stop the Water-course Crew chief Iustice seemed of opinion that the prescription is gone and that the better opinion in Dyer 13 Eliz. hath alwaies been that the Inclosure is gone by unity of possession but yet the Water-course is matter of necessity Doderidge and Whitlock the way is matter of election but the course of water is
shall it be in the case Doderidge Justice the Servant may have the Action also If the Servant be robbed of wares the Master or Servant may have an appeale 8. E. 2. Tit. Robbery two joynt Merchants one is Robbed both shall joyne in the Action and may also joyn in the appeal But it may be objected as Whitlock Iustice did that the Master is not Hospitans I say this is to no purpose A man put his Horse in the Stable and before he goes to bed or lodging the Horse is gone he shall have an action although he did not lodge there For the word transeuntes although he be at the end of his Iourney yet it is within the custom and he shall have action And by Crew if I send cloath to a Taylor and it is stoln from him the Taylor shall have an action of trespasse or the Owner Jones the case of Hue and Cry is a more stronger case then this is for there the Servant ought to swear that he is robbed and yet the Master shall have an action And for the word transeuntes all agreed that although he be at the end of his journey or at an Inne in London yet he is within the remedy of this Law And if a man stay in an Inne a moneth or a quarter of a year shall not he have an action if he lose his Goods Doderidge agreed that if a man be boarded in an Inne and his Goods are stoln he shall not have an action upon this Law And notwithstanding this objection judgment was given for the Plaintiff upon the Verdict Trin. Term 2 Car. In the Kings Bench. Sir William Buttons Case SIr William Button a Iustice of Peace brought an action for these words Sir William Buttons men have stoln Sheep and he spake to me that I should not prosecute them and it seems that the action did not lye because Words Sir William Buttons men have stoln Sheep and be spake to me that I should not prosecute them Sir William did not aver that he is a Iustice of Peace and it doth not appear in what County the said Felony was done 36 Eliz. One brought an action for these words A. is a cosening fellow and the greatest Pickpurse in Northamptonshire and there is not a Purse picked within 40. miles of Northampton but he hath a hand in it And the action did not lye because he did not aver that there were Purses cut Jones Iustice put this case One saith that A. is as strong a Thief as any is in Warwick Gaol he ought to aver that there is a Theef in Warwick Gaol or otherwise they are not actionable Doderidge put this case There is a nest of Theeves at Dale and Sir Iohn Bridges is the maintainer of them these are actionable because it implies maintenance Note that it appeared upon a motion which the Attorney-generall made against one Lane who is a Recusant in Northamptonshire that a Lease for years made by a Recusant of his own Lands after conviction if it be Bona fide will bind the King but if it be upon fraud and covin then it will not and Whitlock said that it is a common course for Recusants to make Leases after their Indictment and before conviction The same Term in the same Court The Case of the Major Bayliffs and Jurates of Maidstone IN a Quo warranto depending against the Mayor Bayliffs and Iurates of Maidstone in Kent Serjeant Finch of Counsell with them of Maidstone put the case briefly in effect thus In the Quo warranto against them it was ordered by the Court that they should have day to plead untill afornight after Trinity Term and the truth was that they had not pleaded accordingly wherupon Iudgment was entred in the Roll and the Writ of Seisin awarded and execution therupon and afterwards by a private order in the Vacation by the chief Iustice and Iustice Jones it was ordered that the Iudgment should be staid and the truth was that it was never entred amongst the Rules of the Court and therfore he prayed that the Iudgment might not be filed but that the last order might be observed and that they might amend their Plea Hendon Serjeant on the other side said that it could not be for by the Iudgment given the King was intitled to have the profits of Franchises which he shal not lose he cited the case which is in F. N. B. 21. Error in B. R. cannot be reversed the same Term before the same Iustices without a Writ of Error but otherwise it is in C. B. and he said that the same course was observed in Eyre there can be no pleading in Eyre after the Eyre determined and upon this he cited the case of 15 E. 4. 7. before the Iustices in Eyre if the Defendant does not come the Franchises shall be seised into the Kings hands nomine destinctionis and if the party who ought the Franchise doth not come during the Eyre in the same County he shall forfeit his Franchise for ever so here after Iudgement entred there can be no plea per que c. Finch we have order from the Court for stay of Iudgement here no perfect Iudgement was given and this is not without president and he cited one Chamberlains Case where the Iudgement was nigh to perfection c. but he did not put the Case Creve ch Justice in this case there was the assent of the Attorney generall who prosecuted the Quo Warranto and so the cases put by Hendon to no purpose Jones upon F. N. B. 21. J. took this difference true it is that the Kings Bench cannot reverse a Iudgement although it be in the same term without a Writ of Error but this is where error lies in Where the Kings Bench may reverse its owne judgmeÌ„t without Writ of Error and where not the same cause in the same Court as upon outlawry but if no error lies in this Court for the same cause but in Parliament then the Kings Bench may reverse the Iudgement without Writ of Error being the same term And the Iudgement here was ever of Record for the Roll untill it be fixed amongst other Rolls is no Record And for the Case of 15. E. 4. 7. it is not like our case in reason for when When a Roll â—s become a Record the Eyre is determined the power of the Iustices in Eyre is also determined but it is not so here for the Iustices have power from Term to Term But Noy argued further for the King that it is a Iudgement of another Term and Execution awarded upon it and said that it is without president that now it should be avoyded and upon the awarding of execution the King under his seal hath averred that judgement is given which cannot be falsified and for Chamberlains Case he said that there was an assent in it Doderidge the Question which now is moved is but this whether a Iudgement entered in a private Roll
one he would pay it where good where not this he may implead him presently Mich 12. Jac Kebles Case A man promiseth to pay so much in consideration of a Lease at Will and it was holden no good consideration for by the same breath that he creates it he may defeat it Pasch 8. Jac. Austins Case A man promise that in consideration he would forbear another he would pay it and no time was limited and therefore it was holden no good consideration Trin. 38. Eliz. Rot. 523. A man promise quod non implacitabit and avers quod non implacitavit and because of the uncertainty it was holden no valuable consideration Doderidge Justice If there be no consideration at the time or no cause of Action the forbearance afterwards will not make it actionable and he said that it had been adjudged in this Court that a consideration to forbear for a little time is not good but by some to forbear for a reasonable time is good But in the principall Case upon the hearing of the Declaration read it appeared that it was that he should never implead him upon the said obligation so that if the Plaintiff brings an Action upon the obligation the Defendant here may have an Action upon the Case against him Also it was non implacitabit and this shall be taken indefinitely quod nunquam implacitabit and therefore the Iudgement was affirmed for otherwise the Plaintiff shall both take advantage of this promise and of the bond also and here he hath in a manner forsaken the benefit of his bond and hath betaken himselfe to the benefit of this Assumpsit By Jones and Whitlock Iustices if A. be bound to me and I enter into bond to him that I will not sue this Obligation I cannot sue him upon the first Obligation without forfeiture of my bond and by Doderidge if an Obligation be forfeited and I say to the Obliger do not sue the Obligor or do not implead him an Action upon the case lies against me The same Term in the same Court. Arnold versus Dichton IN an Action upon the Case and Non-Assumpsit pleaded it was found for the Plaintiff and Noy mooved in arrest of Iudgement that there was no consideration to maintain this Action the Case being thus Arnold having married the Daughter of the Defendents Testator the Testator promised to give him 40 l. and meat â—nd drink for a year and a Featherbed and Bolster and afterwards the Testator in consideration that the Plaintiff would Assumpsit forbear to sue him all his life for it promised that he should have as good a portion at his death as any of his children and the Plaintiff declares that he gave to one Tho. P. one of his Sons 200 l. and that he left him at the time of his death but 30 l. but when he gave to Tho. P. the 200 l. appeares not peradventure it might be in his life time and this promise doth not extend to that which he had given before as if a man be bound to keep a Goale and that no prisoner shall escape this only extends to a future keeping and future escapes and not to other escapes which were before True it is that sometimes the Law will alter the sense as in the Case of 32. H. 6. where a man is bound that his Feoffees c. And at another day Doderidge said that the first promise was but an inducement to the second and the Defendant hath pleaded Non Assumpsit to the last promise and then comes the Plaintiff and shews that he gave to such a one 200 l. and doth not shew when this was given and this may be before the promise and therefore I conceive the Declaration is not good Jones agreed that the Declaration is not good for admit that in this case he had given to all his children but one great portions before the said promise and had given a small portion to one after the promise the Plaintiff now shall have but according to the said promise and it is alledged here that he gave to such a one 200 l. which may be before the promise and therefore the breach not well laid Whitlock contra and that the Plaintiff shall have according to the best gift in this case whether it were before or after the promise and that upon the intention of the promise for the intention is that the Plaintiff should have as good a marriage or portion with his Daughter as any other of his children should have But by Doderidge this construction cannot be made without offering violence to the words for then daret should be for dedisset and for any thing which appeareth he had a portion before and this was but a superaddition Jones put this case I am bound to enfeoff J. S. of so much Land as I will enfeoff J. D. this extends not to a Feoffment which I have made to J. D. before but only to a Feoffment which I shall make to him afterwards which was not denied by Whitlock and it was adjourned The same Term in the same Court. Barker versus Ringrose BArker brought an Action upon the Case against Ringrose and declared that whereas he was of good fame and exercised the Trade of a Wool-winder the Defendant spake these scandalous words of him that he was a Words Thou art a bankrupt Rogue Bankrupt Rogue and it was moved in arrest of Iudgement that those words were not actionable for the words themselves are not actionable but as they concern an Office or Trade c. and it appeareth by the Statute of 27. E. 3 that a Wool-winder is not any Trade but is but in the nature of a Porter so that the Plaintiff is not defamed in his function because he hath not any also it is not averred that he was a Wool-winder at the time of the words speaking Jones Justice If one saith of a Wool-winder that he is a false Wool-winder action upon the Case lieth and it was demanded by the Court A Wool-winder wâ—at he is what a Wool-winder was and it was answered that in the Countrey he is taken to be a Wool-winder that makes up the fleece and takes the dirt out of it and a Wool-winder in London opens the fleeces and makes them more curiously up and in London they belong to the Mayn of the staple Doderidge If one saith of a Sher-man that he is a Bankrupt Action lyes and so it hath been adjudged of a Shoo-maker and note that if one saith of any man who by his Trade may become a Bankrupt within the In what case to call a man Bankrupt is actionable Statutes that he is a Bankrupt an Action lies as of a Taylor Fuller c. And the Court seemed to incline that in this case being spoken of a Wool-winder in London the Action lies But Mich. 3. Car. the Case being moved again the Court was of opinion that the Action could not lye and would not give
that it was good enough for although it were a joynt command yet the parties commanding having severall titles it shall be taken as severall commands reddendo singula singulis and for the third it is good enough being in a Plea otherwise if it had been in a Writ But for the second Exception the bar is not good enough because incertain so that although upon other Exceptions moved by the Defendant the Replication of the Plaintiff was not good yet the Defendants Bar being ill the Plaintiff shall have Iudgement upon tâ—e Declaration And the Plaintiff had Iudgement accordingly The same Term in the same Court Risley versus Hains IN an Action upon the Case upon an assumpsit the Plaintiffe declared upon the Sale of several parcells of Tobacco to wit for one parcell so much for another parcell so much and so forward and in the Conclusion he saith quae quidem separales summae in toto se attingunt to 55. l. which being computed is lesse then the pariculars and upon non assumpsit it was found for the Plaintiffe and now Andrewes moved in arrest of Judgement for that the particulars and the summing up of them differs and this being in a Declaration which ought to contain truth it is not good and so there appears to be no cause of action 35. H. 8. Dyer 55. And Grices Case in the very point Mich. 17. Jac. in this Court but by Jones and Whitlock Iustices onely present the Declaration is good enough for there is a particular promise for every parcell and the summing up of particulars is only surplusage and officiousness of the Clark therefore the Iudgement was affirmed And nota that Jones said obiter in this Case that upon a contract the Party to whom payment is to be made need not make request and afterwards it was agreed by the whole Court that it should be amended otherwise it had been more The same Term in the same Court A Great multitude of Welsh-men were Indited for the death of a man by an Inquisition taken before the Coroner in the County of Mountgomery in Wales and Littleton of Councel with the Welsh-men took some Exceptions to the Inquisition as 1. That the Coroner cannot take any Inquest unlesse it be super visum corporis and to this purpose he cited Britton 6. Ric. 2. Coron 107. 21. E. 4. 70. 2. Ric. 3. 2. This also is the reason that if a man drown himselfe and cannot be found the Coroner cannot enquire of the death of this man but for the King to have a forfeiture of his Goods an Inquisition ought to be taken before the Iustices of Peace as it was resolved in this Court Trin. 13. Jac. upon which the first exception was that the Inquisition was taken at D. in the time of King James super visum corporis in D. in the time of this King and for this he cited two presidents out of Cookes Booke of Eâ—tryes Another Exception was because the Inquisition was per Sacramentum probor legal hominum Com. predict whereas by the Stat. of 4. E. 1. this inquest ought to be by men of the four Towns next adjoyning and this ought to appear in the Inditement also Hill 10. Jac. Rot. 3. Co. lib. Intr. 354. And day was given to the Attorney General to maintain this Inquisition But afterwards Pasch 3. Car. the Inditement was quashed especially for the first exception The same Term in the same Court King versus Merrick In an Action upon the Case for these words I charge you King with Felony and you Constable inuendo Thomas Legat to apprehend him And a verdict for the Plaintiff It was moved in arrest of Iudgement by Bacon that the words are not actionable The first words are not because they are not an expresse affirmation and for this he cited Mich. 11. Jac. in this Court Powel and Bauds case where an action was brought for these words I have arrested Powel of Felony for stealing sheep of mine and adjudged not actionable Also the Plaintiff did not shew in his Declaration what kinde of felony this was and it may be such a felony for which an Action will not lie for there are divers kinds of felony and a Mayhem is one kind as appears in 40. Ass Pl. 4. 6. H. 7. 1 and in this case it shall be taken in mitiori sensu and it shall not be intended such a felony for which he may be hanged If one charge another with felony because he hath committed a Mayhem it is cleer that an action will not lye And the other words I charge you Constable to apprehend him are not actionable and the words are onely spoken to the Plaintiff Also the words are layd to be spoken in London and it appears that the Constable was of a Town in Norfolk who cannot apprehend any one in London Earle for the Plaintiff It hath been argued that the words are not actionable because felony is a generall word and contains in it selfe a mayhem also But I conceive that in this case felony shall be taken according to the general and common acceptation which is such a Felony for which a man may loose his life and for this he cited Co. lib. 4. 15. b. Yeomans charged Hext for my ground in Allerton Hext seeks my life and if I could find Iohn Silver I do not doubt but within two dayes to arrest him upon suspition of Felony and it was adjudged that for the last words the Action lies because he shall be imprisoned for suspition of felony and felony is there taken according to the common acceptation of the word It hath been objected that there is no expresse affirmation of the Felony but I conceive that there is 39. Eliz. Action was brought for these words I will call him in question for poysoning my Aunt and adjudged that it lyes and Mich. 37. and 38. Eliz. Woodrofe and Vaughans case for these words I did not know Mr. Woodrofe was your Brother I will prove him perjured or else I will bear his charges and adjudged actionable And Hill 44. Eliz. Rot. 351. This man inuendo Iohn Latham hath cut my Wives purse and his Father knowing of it received it of him and the Money and Rings theein and therefore I charge him of flat Felony and resolved that for these words did cut my Wife's purse no action lies for the cutting of ones purse only is not felony unlesse it be taken from the person and to receive one is not Felony but resolved that the last words were actionoble and then it was agreed that if one say that I. S. did see such a one that had committed felony and did suffer him to slip away I charge him of Felony these words are not actionable and Mich. 20. Jac. in this Court that these words beare witnesse I arrest him of felony are actionable and therefore he prayeâ— judgement for the Plaintiff Doderidge Iustice the words are not actionable And Hexts case comes not to this
alter the intendment that the Law hath otherwise of the words And Gawdy agreed also that in such cases the Defendant may plead the generall Issue and upon the matter also the Jury ought to find him not guilty But Popham and Clench sayd that this was a dangerous matter to be put in the mouthes of the Lay Gents as hath been said before and therfore to put it to the Iudgment of the Law by pleading And for the exception they ought to have shewn here where by whom and against whom the Petition was delivered to this they said that the exception was to no purpose for this was but a conveyance to the Speech used which Speech was the substance of the Bar and in this they put the case of the Lord Cromwell which was in this Court 22 Eliz. Rot. 752. In an Action upon the Statute of Scandalum Magnatum by him brought against Thomas Dye Clark for saying to the Lord Cromwel It is no news though you like not of me for you like of those that maintain Sedition against the Queens proceedings in which the Defendant said that he was Vicar of North Linham in the County of Norf. and that the Plaintff mentioned one Vincent Goodwyn Clark at such a time and one Iohn Trendle at such another time neither of them being licenced to preach in the said Church against the will of the said Defendant and shew how they severally preached there in their Sermons and shew certainly in what point Seditious Doctrine against the Laws of the Church as against the Crosse used in Baptisme and the wearing of the Surplice and that afterwards in speech therupon between the said Plaintiff and him the Plaintiff said to the Defendant That the Defendant was a false Knave and said in English words that he liked not of the Defendant wherupon the Defendant said the words comprised in the Declaration Innuendo That he liked of the said Goodwyn and Trendle who maintain Sedition Innuendo seditious Doctrine against the Queens proceedings Innuendo predict Leges Stat. Ecclâ—siae hujus regni Angl. c. And the Plaintiff was put to answer Scilicet de injuria sua propria absque tali causa c. And note in this case the Defendant would first have justified for the matter preached by one and it was not allowed by the Court but he was put to speak to both or otherwise it had not been good because his speeches were in the plurall number to wit That he liked of those which refers to more then to one And it was said in this case that the word Subject might have severall significations according to the circumstance wherupon it is spoken As Subiect generally without more is to be intended of the Queen but according to the circumstance it may be said Subject of England or Subject of Ireland or Subject to the Law or subject to any other authority or power set over him or subject to his Affections And if a man saith of another that he is a Subject and therfore he ought to serve the Queen in her Warrs and he answers that he is sorry for that and is grieved for it no Action wil lye for this because the grievance refers to service which is to be done and not to his Subjection as a Subject Dillon versus Fraine 9. IN Trespasse brought by William Dillon Esquire against John Fraine See this in Cook lib. 1. 120. bâ— the name of Chudleighs case for breaking of his Close at Tavestock in the County of Devon called Seden upon not guilty and a speciall Verdict the case appeared to be this to wit that Sir Richard Chudleigh Knight was seised in his Demesne as of Fee of the Mannor of Hescot with the Appurtenances in the County of Devon of which the said Close was parcel and so seised 26 April 3 4 Phil. Mar. by his Deed of Feoffment of the same date enfeoffed Sir Tho. Saintleger Knight and others and their Heirs of the said Mannor to the use of the said Sir Richard Chudleigh and his Heirs of the body of the said Elizabeth then the wife of Richard Bainfield Esquire lawfully begotten and for default of such Issue then to the use of the said Sir Richard Chudleigh and of his Heirs of the bodies of other wives of other persons lawfully begotten And for default of such Heirs then to the use of the performance of the Will of the said Sir Richard Chudleigh for 10. years after his decease and after the said Term finished then to the use of the said Sir John Saintleger and his Co-feoffees and their Heirs during the life of Christopher Chudleigh Son and Heir apparant of the said Sir Richard and after the death of the said Christopher then to the use of the first Issue Male of the body of the said Christopher and to the Heirs Males of the body of this first Issue Male and for default of such Issue to the second Issue Male of the body of the said Christopher to the Heirs Males of the body of this second Issue Male and so to the tenth Issue Male And for default of such Issue then to the use of Thomas Chudleigh another Son of the said Sir Richard and of the Heirs of his body lawfully begotten And for default of such Issue to the use of Oliver Chudleigh another Son of the said Sir Richard and of the Heirs of his body lawfully begotten And for default of such Issue to the use of Nicholas Chudleigh another Son of the said Sir Richard and of the Heirs of his body lawfully begotten and for default of such Issue to the right Heirs of the said Sir Richard Chudleigh for ever wherby they were seised accordingly after which the 17th of Novemb. 5 6. Phil. Mar. the said Sir Richard died without any Heir of the body of any of the wives before mentioned And after that the said Christopher took to wife one Christian Strecheley after which to wit the 14th day of August 1 Eliz. the said Sir John Saintleger and the other Feoffees by their Deed of the same date enfeoffed the said Christopher of the said Mannor to have and to hold to him and his Heirs for ever to the use of the said Christopher and his Heirs the said Oliver Chudleigh then being living after which to wit the 20th day of September 3 Eliz the said Christopher had Issue of his body lawfully begotten one Strechly Chudleigh his first Issue Male And after this to wit the 30. day of March 5 Eliz. the said Christopher had Issue of his body lawfully begotten one John Chudleigh his second Issue Male after which to wit the first day of July 6 Eliz. the said Christopher by his Deed indented of the same date and inrolled within six months according to the Statute bargained and sold the said Mannor to Sir John Chichester Knight and to his Heirs and in the interint also between the date of this Deed and in the inrolement therof to