granted And here it was agreed That if a woman do convey a Lease in trust for her use and afterwards marrieth that in such case it lies not in the power of the husband to dispose of it and if the wife die the husband shall not have it but the Executor of the wife and so it was said it was resolved in Chancery 70. Barckley and Crooke there being no other Justice at that time in Court said That upon a Petition to the Archbishop or any other Ecclesiastical Court no Prohibition lieth But there ought to be a Suit in the Ecclesiastical court And by them a Libel may be in the Ecclesiastical court for not repairing a way that leadeth to Church but not for repairing of a high-way and upon suggestion that the Libel was for repairing a high-way a Prohibition was granted 71. Many Indictments were exhibited severally against several men because each by himself suffered his door to be unrepaired and it was shewed in the Indictments that every one of them ought to repair And thereupon it was moved that they might be quashed but the Court would not quash them without certificate that the parties had repaired their doors but it was granted that Process should be stayed upon motion of Counsel that reparation should be immediately done But at the same time many Indictments for not repairing of the high-way which the Parishioners ought to have repaired according as it was found by Verdict the same Term were quashed for the same defect But in truth there was another fault in the Indictment for that it was joynt one only whereas there ought to have been several Indictments but they were quashed for the first defect 72. A Replevin was brought in an Inferiour Court and no Pledges de retorno habendo were taken by the Sheriff according to the Statute of West 2. c. 2. After the Plaint was removed into this Court by a Recordari and after Verdict given it was moved in arrest of Judgment want of Pledges for thâ—se reasons because the Pledges de retorno habendo are given by that Statute as 2 H. 6. 15. and 9. H. 6. 42. b. And that Statute saith That Pledges shall be taken by the Sheriff and therefore no other can take them notwithstanding that Pledges might be found here in Court And 3 H. 6. 3. and F. N. B. 72. a. say That where Pledges are found that they shall remain notwithstanding the removal of the Plaint by Recordari and the reason is because the Sheriff is a special Officer chosen to that purpose by the Statute and therefore no other can take them Besides there would be a failer of Justice if the Court should put in Pledges for then there might be no remedy against the Sheriff for that he found no Pledges and no remedy against the Pledges because they are not found according to the Statute and so a failer of Justice and by that means the Sheriff should frustrate and avoid the Statute for no Pledges should ever be found and so he should take advantage of his own laches and wrong Farther it was objected that these proceedings are the judicial act of the Court and therefore the Court will not alter or diminish them L. Entries 1. and 3 H. 6. And farther it was said That the cases of Young and Young and Dr. Hussies case adjudged in this Court That Pledges may be found at any time before Judgment were in Action upon the Case and not in Replevine as our case is for which there is special Provision made by the Statute But it was answered and agreed by the whole Court that Pledges may be found by this Court for the Pledges given by the Statute of West 2. are only to give remedy against the Sheriff and if the Sheriff do not his duty but surceaseth we may as at the Common Law put in Pledges and yet notwithstanding remedy may be against the Sheriff upon the Statute for his neglect And farther it was agreed That Pledges may be found at any time before Judgment as in Young and Youngs Case and Dr. Hussies Case it was adjudged And Judgment was affirmed 73. There can be no second Execution granted out before that the first be returned 74. Two Joyntenants of a Rectory agree with some of their Parishioners that they shall pay so much for Tithes and notwithstanding one of thâ—m sueth for Tithes in the Ecclesiastical court and a Prohibiâ—ion was prayed because that one of them cannot sue without the other and the Court would not grant it and their reason was because although that one of them cannot sue without the other by our Law yet perhaps the spiritual Court will permit it 75. Husband and Wife brought a Writ of conspiracie and it was adjudged that it would not lie And Iones cited this case That Husband and Wife brought an Action upon the Case against another for words viz. That the Husband and Wife had bewitched another and it was not good because that the wife cannot joyn for Conspiracie made against the husband nor for trespass of Battery as the Book is 9 E. 4. But Justice Crook was of Opinion That the Conspiracie would well lie because that the Indictment was matter of Record and therefore not meerly Personal but the whole Court was against him and Justice Barckley took the difference where they sue for Perâ—onal wrong done to thâ—m there they shall not joyn but wherâ— they have a joynâ— Interest as in case of a Quare impedit there they shall joyn Thurston against Ummons in Error to Reverse a Iudgment in Bristow 76. THurston brought an Action upon the Case against Vmmons declared That the Defendant brought an Action against him at the Suit of Hull without his privity And thereupon did arrest and imprison the Plaintiff by reason whereof all his Creditors came upon him and thereby that he had lost his Credit c. And a Verdict was found for the Plaintiff and thereupon Error brought and two Errors were alledged 1. That the Action will not lie because in truth there was a just Debt due to Hull in whose name he sued 2. Because it is not shewed that the causes of Actions which the other Creditors had against him did arise within the Jurisdiction of the Court of Bristow And notwithstanding the first Error alledged Judgment was affirmed by the whole Court upon this difference where Hull himself sueth or commenceth Suit against the Plaintiff there although by that Suit he draw all the Creditors upon the back of him and so perhaps undo him yet because it was a lawful act no Action upon the Case lieth against him But where one commenceth Suit against another in the name of another and without his privity that is Maintenance which is a tortious Act and therefore an Action will lie so in the principal case As to the second Error alledged the Court differed in Opinion Barkley That the damages were ill assessed because they were given aswel for
breach in non faciendo and saith that he is ready to do the thing which he promised but that the other refused to accept of it Notwithstanding the breach is well laid and the Action well lieth for it was idle and more than the Plaintiff was compelled to do to shew that paratus est to do the thing which he promised So that if there were a breach upon the part of the Defendant it is sufficient and if there was a breach on the Plaintiffs part the Defendant ought to bring his Action for it And the difference was taken by Bramston Where the promise is conditional and where absolute as in our case And agreeing with this difference it was said at the Bar and Bench That it was adjudged 115. Hutton moved to quash certain Presentments because they were taken in a Hundred-Court which is not the Kings Court and therefore coram non Iudice It was said by Justice Iones That a Hundred may have a Leet appendant to it and then they were lawfully taken Barckley and the whole Court answered because it doth not appear to the Court whether there was so or not that the Presentments were void 116. Concerning damage clear It was agreed that it was hard that the Plaintiff should be stopt of his Judgment until he had paid his damages clear For perhaps if the Defendant be insolvant the Plaintiff should pay more for damages clear than he should ever get And therefore the Court was resolved to amend it This damage clear is twelve pence in the pound of the damages given to the party in this Court and two shillings in the Common pleas See the Register where is a Writ for damage clear Harris against Garret 117. IT was agreed by the whole Court that it is no good plea to say That such an one was bound in a Recognisance and not to say per scriptum obligat ' and to conclude that it was secundum formam Statuti doth not help it But in a Verdict it was agreed to be good And according to this difference it was said by the Court That it was adjudged in Goldsmiths case and Fulwoods case 118. It was agreed by the Court that upon a Certiorari to remove an Indictment out of an Inferiour Court that the Defendant shall be bounden in a Recognisance to prosecute with effect viz. to Traverse the Indictment or to quash it for some defect And if he doth not appear an Attachment shall issue out against him Iustice Crooks Case 119. IT was agreed by the Court That although a Bill be preferred in the Starchamber against a Judge for Corruption or any other for any great misdemeanour yet if the Plaintiff will tell the effect of his Bill in a Tavern or any other open place and by that means scandalize the Defendant that the same is punishable in another Court notwithstanding the suit dependant in the Starchamber And so Iones said that it was adjudged in a Bill in the Starchamber against Justice Crooke which was abated because it was brought against him as Sir George Crooke only without addition of his Office and Dignity of Judge Trinit 16º Car ' in the Common Pleas. 120. AN Apothecary brought an Action upon the Case upon a promise for divers Wares and Medicines of such a value and shewed them in certain The Defendant pleaded in Bar that he had paid to the Plaintiff tot tantas denarior ' summas as these Medicines were worth and doth not shew any sum certain And the plea was holden to be no good plea wherefore Judgment was given for the Plaintiff 121. A Contract was made betwixt A. and B. Mercers That A. should sell to B. all his Mercery Wares and take his Shop of him In consideration of which A. promised that he would not set up his Trade in the same Town And adjudged a good Assumpsit in the Kings Bench as Littleton Chief Justice said But if one be bound that he will not use his Trade it is no good Bond. 122. Rolls moved this Case A Writ of Error was brought upon a Judgment given in Yarmouth and the Case was thus A. and B. were bound to stand to the Arbitrament of I. S. concerning a matter which did arise on the part of the wise of B. before coverture I. S. awarded That A. should pay to B. and his wife ten pounds at a place out of the Jurisdiction And thereupon upon an Action brought upon the Bond a Breach was assigned for not payment of the mony at the place And here it was objected That it was Error because it was there assigned for Breach the not payment of the mony at a place out of Jurisdiction and for that cause the Judgment was not well given Secondly because that the Award was That payment should be made to B. and his wiâ—â— which was out of the Submission But notwithstanding Judgment was affirmed by the whole Court. For as to the 〈◊〉 issue could not be taken upon payment or not payment oâ— of the Jurisdiction because it was not Traversable As 〈◊〉 the second the Controversie did arise by reason of the wiâ—e and therefore the Award was within the Submission beiâ—â— made that the payment should be to both 123. It was said by the Court that it was one Kellway Case adjudged in this Court That a Promise made to an Atturny of this Court for Solliciting of a Cause in Chanceâ—â— was good and that it was a good consideration upon whiâ—â— the Atturny might ground his Assumpsit For it was resâ—â—ved That it was a lawful thing for an Atturny to Sollicite 124. The Court would not give way for Amendments Inferiour Courts 125. By Iones and Barckley Justices If there be an insufficient Bar and a good Replication after a Verdict theâ—â— shall be a Repleading Contrary where there is no Verdict Smithson against Simpson 126. A. And B. were bound to stand to and observe suâ—â— Article Agreement Order or Decree as thâ— Kings Council of the Court of Request should make A brought an Action upon the Bond against B. and pleaded that the Kings Councel of the Court of Request made such Order and Decree and that the Defendant did not observe it The Defendant pleaded That the King and his Council did not make the Decree and adjudged by the Court that the Plea was not good 127. Sir Matthew Minkes was Indicted of Manslaughter and found Guilty And it was moved by Holâ—orne of Counsel with Sir Matthew that the Iudictment was insufficient because there was dans c. without adtunc ibid. according to Presidents as also because it was plagam sen contusionem which is incertain as also that the party killed languebat à pred' 15 die usque decimam sextam And he said That there was no time between those two days but it ought to have been That he languished from such an hour till such an hour and that he said were the ancient Presidents And he said That an Indictment that A.
â—e conceived That if a man speak such words of another that if they were true would make him liable to a pecuniary or corporal punishment that they would bear an Action and here the Plaintiff was endamaged and therefore without question they will bear an Action Bramston Chief Justice as before also That the words are not Actionable neither of themselves nor for the damage not of themselves for no words which subject a man to a pecuniary Mulct if they were true either at the Common Law or by the Statute will bear an Action For by the same reason to say that a man hath erected a Cottage or to say that a man hath committed a Riot would bear Action 37 Eliz. in the Common Pleas. One said of another That he did assault me and took away my Purse from me and upon Not Guilty pleaded it was found for the Plaintiff and Judgment was stayed because he might take his purse from him and yet be but a Trespasser So as it appeareth that words ought to have a favourable construction to avoid multiplicity of Suits and if these words would bear an Action by the same reason words spoken against every penal Law should bear Action which against the reason given before should be a means to increase Suits And he took it for a rule If the words import scandal of themselves by which damage may accrue then the words will bear action without damage otherwise not and therefore the damage here shall not make the words Actionable which of themselves are not actionable as I conceive they are not Besides by this means the Act of a third person should prejudice me which is against reason as here the Act of the Ordinary by the Citation and damage thereupon accrued which perhaps might be ex officio only for which cause he conceived that Judgment should be stayed but because there were two Judges against one Judgment was given for the Plaintiff Mich. 17º of the King in the Common Pleas. 192. BAine brought an Action upon the Case against for these words viz. That he kept a false Bushel by which he did cheat and cosen the poor he said in his Declaration That he was a Farmor of certain lands and used to sow those lands and to sell the Corn growing on them and thereby per majorem partem used to maintain himself and his family and that those words were spoken to certain persons who used to buy of him and that by reason of those words that he had lost their custom the parties were at issue upon the words and found for the Plaintiff and it was moved by Serjeant Gotbold in arrest of Judgment that the words were not actionable because that the Plaintiff doth not alledge that he kept the false Bushel knowing the same to be a false Bushel for if he did not know it to be a false Bushel he was not punishable and by consequence no Action will lie and compared it to the case Where a man keeps a Dog that useth to worry sheep but he doth not know of it no Action lieth against him for it but yet notwithstanding Bankes chief Justice and Crawley were of Opinion that the words were Actionable for of necessity it ought to be taken that he kept the Bushel knowingly for otherwise it is no cousenage and here being special damage alledged which was the loss of his custom as he had pleaded it the maintenance of his livelihood they hold the words clearly actionable gave Judgment accordingly Note the other Judges were in Parliament 193. Doctor Brownlow brought an Action upon the case for words against 〈◊〉 spoken of him as a Physitian which words were agreed to be Actionable but yet Serjeant Gotbold conceived that although that the words were actionable that the Plaintiff had not well intitled himself to his Action because although that he said that he is in Medicinis Doctor yet because he doth not shew that he was licensâ—d by the Colledge of Physitians in London or that he was a Grâ—dâ—ate of the Universities according to the Statute of 14. H. 8. cap. 5. that therefore the action will not lie see Doctor Bâ—unchams case 8 Rep. 113. â— where he shewed the Statute aâ—orâ—said and pleaded it accordingly that he was a Graduate of the University of Cambridge wherefore he prayed that Judgment might be stayed Bankes Chief Justice and Crawley doubted whether the Act were a general Act or not for if it were a particular Act he ought to have pleaded it otherwise that they could not take notice of it but upon reading of the Statute in Court they agreed that it was a general Act wherefore they gave day to the party to maintain his Plea 194. By Bankes Chief Justice upon an Elegit there needs no Liberate otherwise upon a Statute and note the Elegit doth except Averia Corucae Dye and Olives Case 195. IN an Action of false Imprisonment the Defendant shewed that London hath a Court of Record by prescription and that the same was confirmed by Act of Parliament and that he was one of the Serjeants of the Mace of that Court and that he had a Warrant directed unto him out of that Court to arrest the Plaintiff pro quodam contemptu committed to the Court for not paying twenty shillings to K. B. and that in pursuance of the command of the Court he accordingly did arrest the Plaintiff Maynard that the justification was not good because the Defendant doth not shew what the contempt was nor in what Action so as it might appear to the Court whether they had Jurisdiction or not And if such general Plea should be tolerated every Court would usurp Jurisdiction and every Officer would justifie where the proceeding is Câ—ram non Iudice and void and thereby the Oâ—â—icer liable to false Imprisonment according to the case of the Marshalâ—ee in the 10 Rep. And here the pleading is incertain that the Jury cannot try it and he put the case of the Mayoâ— of Plymouth The Mayor hath Jurisâ—iction in Dâ—bt and Trespass is brought there which is Coram non Iudice But in this Action the parâ—y is imprisoned pro quodam contemptu shall this be a good Justification in a false imprisonment brought against the Officer certainly no. Serjeant Rolls contrary that the Plea was good because that the Defendant hath shewed that the Court was holden secundum consuetudinem and therefore it shall be intended that the contemptâ— was committed in a Case within their Jurisdiction and therefore he cited the 8 Rep. Turners Case to which Maynard replied that that doth not make it good because that issue cannot be taken upon it At another day the Judges gave their Opinions Justice Mallet That the Plea is not good because that it is too general and non constat whether within their Jurisdiction or not and where it was objected that he is a Minister of the Court and ought to obey their commands and therefore it should go hard that he
well lie Bramston Chief Justice for the Avowant that 〈◊〉 may well distrâ—in and cannot have a Scire facias but if he may have a Scire facias yet he may distrein without it There is no authority in the Law directly in the point in this Case I agree that if there be any prejudice to the conusee there it is reason to have a Scirâ— facias It was objected that it is a constant course to have a Scire facias in this Case But I believe you will never find a Scire facias brought by the Grantee of a rent or other profit apprender Besides the best way to judge this Case is to examine what the Scire facias is which ought to be brought and what the Judgment is which is given upon it whether he may recover the thing in demand or not vid. 32 E. 3. Fitz. Scire facias 101. 47 E. 3. 11. which are brought to have account and to shew cause wherefore he should not have the land see Fitz. Scire facias 43. v. The old Entries the Judgment which is given thereupon and the demand there is quod tenement praed redeliberatur and may the grantee in this Case have the land and thing in demand certainly not and that gives sufficient answer to the Cases objected by my Brother Heath where the second conusee shall have a Scire facias against the first Besides you shall never find in all our Books that a man shall have an attaint or a writ of error but he who may be restored to the thing lost by the judgment or verdict 2 R. 3. 21 Dyer 89. 9 Rep. the Lord Sanchars Case so in debt and erroneous Judgment upon it wherewith agreeth Doctor Druries Case 8 Rep. 12. 18 E. 3. 24. the feoffee shall have a Writ of Error because he shall have the land and see 32 E. 3. Scire facias 101. And the grantee shall not have a Writ of Error in this Case upon erroneous Judgment and for the same reason he shall not have a Scire facias and the grantee cannot have a Scire facias for want of privity and therefore I conclude that he cannot have a Scire facias for if he might certainly it would have been brought before this time either for this cause or for some other profit apprender It was objected that he shall not be in better condition than the conusor that is regularly true as to the right but he may have another remedy It was objected that the reason why that a Statute without a Scire fatias shall not be defeated is because he is in by Record and therefore shall not be defeated without Record but that is not the true reason but the reason is because the conusee ought to have costs and damages besides his debt as is Fullwoods Case 4 Rep and 15 H. 7. 16. is that the Chancellor shall judge of the costs and damages But 47 E. 3. 10. 46 E 3. Scire facias 132. by all the Judges that they lie in averment But here an inconvenience was objected that great arrerages should be put upon the conusee for a little mistaking to that he said that of a small mistake the Court shall judge and it shall not hurt him but if he hold over being doubly satisfied it is reason that he pay the arâ—erages and he put this Case A man acknowledgeth a Statute and afterwards makes a lease to begin at a day to come the lâ—ssee shall have a Scire facias for where remedy doth fail the Law will help him for which cause he concluded and gave Judgment for the avowant Trin. 18 Car ' in the Kings Bench. Paulin against Forde 248. AN Action upon the Case brought for words the words were these Thou art a thievish Rogue and hast stolen my wood innuendo lignum c. Gardiner the words are not actionable because it shall be intended wood standing or growing and not wood cut down and so he said it had been adjudged so if a man says of another that he hath stollen his Corn or Apples the words are not actionable because they shall be intended growing Bramston Chief Justice that the words are actionable because that wood cannot otherwise be meant but of wood cut down because it is Arbor dum crescit lignum dum crescere nescit for which cause he conceived that the words were actionable and it was adjorned Chambers and his wife against Ryley 249. ACtion upon the Case for words the words were these Chambers his wife is a Bawd and keeps a Bawdy-house for which words the Action was brought and the conclusion of the Plea is ad damnum ipsorum Wright the words are not actionable because it is not the wife that keeps the house but the husband and therefore the speaking the words of the wife cannot be any damage to him but admit the words were actionable the husband only ought to bring the Action because the speaking of the words is only to his damage Bramston Chief Justice the wife only is to be indicted for the keeping of a Bawdy-house and therefore she only is damnified by the words and the husband ought to joyn in the Action but that is only for conformity and the conclusion of the Plea is good for the damage of the wife is the damage of the husband and therefore ad damnum ipsorum good And here it was agreed that to say that a woman is a Bawd will not bear an Action but to say she keeps a Bawdy-house will Porter who was for the Action cited a Case which was thus One said of the wife of another that she had bewitched all his beasts and she and her husband joyned in an Action and upon debate it was adjudged good and there the conclusion also of the plea was ad damnum ipsorum Rickebies Case 250. RIckebie was indicted in Durham for Murder and afterwards the Indictment was removed into the Kings Bench where he pleaded his Pardon which Pardon had these words in it viz Homicidium feloniam felonicam interfectionem necem c. seu quocunque alio modo ad mortem devenerit And note there was a Non obstante in the Pardon of any Statute made to the contrary and whether these words in the Pardon were sufficient to pardon Murder or not was the Question Hales for the Prisoner said that the Pardon was sufficient to pardon Murder and in his argument first he considered whether Murder were pardonable by the King at the Common Law or not and he argued that it was the King is interessed in the suit and by the same reason he may pardon it It is true that it is Malum in se and therefore will not admit of dispensation nor can an appeal of Murder which is the suit of the Subject be discharged by the King but the King may pardon Murder although he cannot dispense with it see Bracton lib. 3. cap. 14. And the Law of the Jâ—ws differs from our Law
erect his Tavern For it is a disorderly Profession and not fit for every place And it was adjudged in this Court That a Brewhouse ought not to be erected in Fleet-street because it is in the heart of the City and would be annoyance to it And if one would set up a Butchers shop or a Tallow-Chandlers shop in Cheap-side it ought not to be for the great annoyance that would ensue And therefore the Mayor and Communalty may redress it And therefore the party was remanded and was advised by the Court to submit to the Government of the City Note the Recorder certified the Custom That the Mayor might appoint a place 35. Upon a Recovery in a Court-Baron against one he offered here to wage his Law And Justice Barckley doubted whether wager of Law would lie in such Case To which Justice Iones said Yes and Barckly agreed hereunto because the Recovery was in a base Court and not in a Court of Record Vide 2 E. 4. 36. No antient Mill is Tithable but Mills newly erected shall pay Tithes by the Statute of 9 E. 2. 5. Meade against Axe in a Writ of Error to reverse a Iudgment 37. THe Case was Axe brought an Action against Meade for these words spoken of the Plaintiff a Dyer by the Dâ—fendant Thou art not worth a Groat And the Plaintiff added that these words amongst Citizens of such place where they were spoken have the common acceptation and doth tant amount as the calling of him Bankrupt The Errors which were assigned by Meade Plaintiff in the Writ of Error were 1. Because it is added that the words were spoken inter diversos ligeos and doth not say Citizens of the place where they have such acceptation 2. Because that the Judgment is Consideratum est and the words per Curiam left out And the Court was clear that for these two Errors the Judgment should be reversed But the Court was clear of Opinion That the words of themselves are not actionable and that the averment in this Case was idle and to no purpose because the words of themselves imply a plain and intelligent sense and meaning to every man And it was compared to the Cases Where there is no Latine for words there where words of no signification are put to express them there they ought to be explained by an Anglicè but where the words are significant there needs not any Anglicè Now if you will explain significant words under an Anglicè contrary to the meaning and true intendment of the word it self the Anglicè is void So in our Case of Averment The reason which was conceived wherefore the words of themselves are not Actionable Because that many men in their beginnings are not worth a Groat and yet their credit is good with the world But if he had laid specially That he was damnified and haâ— lost his Credit and that none would trust him upon this special matter the words would be Actionable Bonds Case 38. IN Trespass the Plaintiff declared That the Defendant entred in his Land and did cut down and carry away two Loads of Grass in the Plaintiffs Soil in a certain piece of Ground in which the Trespass was supposed to be done to strow the floor of the Church and that he cut two Loadâ— there to estrew the floor of the Church and did not say that it is the same Trespass c. And it was adjudged Error But the Court was clear that the Prescription for cutting of grass to estrew the Church was good because it was but in the nature of an Easement And so to have a washing-place in the land of another and so the custom here in London to shoot in the land of another and so for the Inhabitants of a town to have a way over the land of another to their Church But Mr. Rolls who moved the Case at the Bar said That it was adjudged that Inhabitants of a town by custom should have an Easement over the Freehold or in the Freehold of a Stranger but not profit Apprender But as I remember the Plaintiffs Freehold lay near the Church and for that reason the Court might conceive the same to be but an Easement Vide 2 H. 3. cited by Justice Iones Vid. Gatewoods Case 6 Rep. 60. b. Conysbies Case 39. UPon the Lease of an House the Lessee Covenanted that he would Repair the House with convenient necessary and tenantable Reparations The Lessor brought Covenant and alleaged a breach of the Covenants in not repairing for want of Tiles and dawbing with Morter and did not shew that it was not Tenantable And the Opinion of the Court was that he ought to have shewed it for the house may want small Reparations as a Tile or two and a little Morter and yet have convenient necessary and tenantable Reparations 40. A Writ of Error was brought and the Error assigned was want of Pledges And the Judgment was reversed although it was after Verdict And so was it adjudged in Dr. Hussies case and Young and Youngs case in this Court and the Reason was given because that otherwise the King should lose his Amercement 41. Fish in the River are not Titheable if not by Custome 42. Two referred themselves to Arbitrement and the Arbitrators arbitrate that one of them should pay a certain sum to the other and the other in consideration thereof should acquit him of a Bond wherein they both were bounden to a third person in a 100 lib. eo circiter and it was objected That the Arbitrators had arbitrated a thing incertain by reason of these words eo circiter But the Opinion of the Court was That there was sufficient certainty because that in this Case it doth not lie in their power to know the direct sum and because a small variation is not material but if they as in Salmons case 5 Rep. will arbitrate that one shall be bound in a Bond to another and not express in what sum the same is utterly void for the incertainty Difference was taken where the Arbitrators arbitrate one party to do a thing which lieth in his power and where not without the help of a third person there the Arbitrament is void and in the principal Case the difference was taken by the Court where the Bond is forfeit and the penalty is incurred and where not or the day of payment is not incurred there payment at the day is a good discharge and acquittance but where it is incurred it is not But Justice Iones said That he might compel the Obligee upon payment although the Bond was forfeit to deliver the Bond by Subpoena in Chancery or that he suffer an Action to be brought against him and then to discharge it and pay it Goodman against VVest Debt upon the Statute of 5 Eliz. Cap. 9. 43. THere was an action brought against the Plaintiff in the Common Pleas who procured Process to issue against the Defendant for his Testimony in his Cause and a Note of
the Actions brought by the other Creditors But Justice Bramston contrà That the damages were well assessed because that the Actions brought by the Creditors were added for aggravation only and the cause of the Action was the Arrest and Imprisonment like the case where a man speaks words which are in part actionable and others only put in for aggravation and damages is assessed for the whole it is good There was a third Error assigned That the Venire facias was de Warda omnium Sanctorum de Bristow without shewing in what Parish Childe against Greenhil 77. CHilde brought Trespass against Greenhill for Fishing in seperali piscaria of the Plaintiff and declared that the Defendant pisces ipsius cepit c. And Verdict found for the Plaintiff And it was moved by Saint-Iohn in Arrest of Judgement because the Plaintiff declared of taking of pisces suos whereas the Plaintiff they being ferae naturae hath not property in them Register 94 95. and F. N. B. and Book Entries 666. No count that the Defendant cepit pisces ipsiuâ— but ad valentiam c. without ipsius So Fines Case in Dyer 7 H. 6. 36. 10 H. 7. 6. 12 H. 8. 10. by Brudnell 13 E. 4. 24. 7 Rep. case of Swannes And the Book of 22 H. 6. 59. is over-ruled by the case of Swannes 34 H. 6. 24. And the same is matter of substance and therefore not helped after Verdict An Action of Trover and Conversion against husband and wife quia converterunt is not good and it is not helped after Verdict because it is matter of substance Rolls for the Defendant I agree that lepores suos or pisces suos without any more is not good But where he brings an Action of Trespass for taking them in his Soil there it is good because it is within his Soil So in our case for taking pisces suos in his several Piscary and with this difference agree 22 H. 6. 59. 43 E. 3. 24. so Regist. 93 102. 23 H. 6. tit Tresp 59. 14 H. 8. 1. and the Book of 43 E. 3. saith That in Trespass the Writ shall not say Damam suam if he do not say that it was taken in his Park or Warren or saith damam domitam or as the Book is in 22 H. 6. in my Soil or Land and by Newton he shall say there damas suis. And admit that it was not good yet I hold that it is helped after Verdict because it is not matter of Substance for whether they be pisces suos or not the Plaintiff shall recover damages Justice Barckly It is true that in a general sense they cannot be said pisces ipsius but in a particular sense they may and a man may have a special or qualified property in things which are ferae naturae three ways ratione infirmitatis ratione loci ratione privilegii and in our case the Plaintiff â—ath them by reason of Priviledge And it was agreed by the whole Court That Judgment should be affirmed upon the very difference taken by Rolls that where a man brings Trespass for taking pisces suos or lepores suos c. and the like that the Action will not lie But if he bring Trespass for fishing in his several Piscary as in our Case or for breaking of his Close and taking lepores suos c. there it will lie Pitfield against Pearce 78. IN an Ejectione firme the Case was thus Thomas Pearce the Father was seised of Lands in Fee and by Deed in consideration of Marriage did give and grant this Land to Iohn Pearce the now Defendant his second Son and to his Heirs after his death and no Livery was made Thomas Pearce died the Eldest Son entred and made a Lease to the Plaintiff who entred and upon Ejectment by the Defendant brought an Ejectione firme Twisden The only question is whether any estate passeth to the Son by the Deed and it was said there did and that by way of Covenant And it was agreed That in this Case if Livery had been made it had been void because that a Freehold cannot begin at a day to come But I may Covenant to stand seised to the use of my Son after my death So a man may surrender a Copyhold to take effect after a day to come Com. 301. So a man may bargain and sell at a day to come 1 Mar. Dyer 96. Chudleighs Case 129. 20 H. 6. 10. A use is but a trust betwixt the parties and 7 Rep. 400. There need not express words of Covenant to stand seised to an use 25 Eliz. Blithman and Blithmans case 8 Rep. 94. Besides these words dedi concessi are general words and therefore may comprehend Covenant and words shall be construed that the Deed may stand if it may be 8 Ass. 34. 7 E. 3. 9. But I agree that if the intent appeareth that it shall pass by transmutation of possession that there it shall be so taken but here his intent doth not appear to be so for if there should be Livery then the son should take nothing for the reason before given which is against his meaning Mich. 21 Iac. Rot. 2220. Buckler and Simons Case Dyer 202. Vinions case The cases cited before are in the future tense but the words are here I give c. 36 Eliz. Callard and Callards Case Stand forth Eustace reserving an estate to my self and my wife I do give thee my Land and the better Opinion was That in that case it did amount to a Livery being upon the Land for his intent is apparent Mich. 41 42 Eliz. Trelfe and Popwells Case adjudged in such case That an use shall be raised For which it was concluded that in this case there is a good estate raised to Iohn Pearce by way of Covenant Rolls I conceive that not estate is raised to Iohn Pearce by this conveyance It was objected That it shall inure by way of Covenant to raise an use I agree that if the meaning of the party may appear that he intended to pass his estate by way of raising of an use otherwise not And here is no such appearance Foxes Case in 8 Rep. is a stronger case and here it doth not appear that he meant to pass it by way of use But by the word give he intended transmutation of possession 8 Rep. Bedells case Mich. 18. Car. Rot. 2220. in the Common Pleas it was adjudged That a gift of a Remainder after the death of the grantor was void wherefore he concluded for the Plaintiff and so Judgment was given by the whole Court And Justice Iones said When a man makes a doubtful Conveyance it shall be intended a Conveyance at the Common Law And it shall not be intended that the Father would make him Tenant for life only punishable of wast Mich. 15º Car ' in the Kings Bench. 79. IT was moved for a Prohibition to the Counsel of the Marches and the Case was such A man seised of Lands in Fee
it then a Prohibition shall be granted And note that it was said by Bankes Chief Justice that before the Statute of 1 Eliz. the Ecclesiastical Court might punish any person for not coming to Church pro reformatione morum salute animae 163. Where there are several Modus alledged there several Prohibitions shall be granted but where divers are sued joyntly and they alledge one Modus only there they shall have but one Prohibition by Reeve and Foster Justices the others being absent Pasch. 15º Car in the Kings Bench. Edwards and Rogers Case 164. THe Case was thus Tenant for life the Reversion to an Ideot an Unkle heir apparent of the Ideot levied a Fine and died Tenant for life died the Ideot died the only Question was Whether the Issue of the Unkle who levied the Fine should be barred or not Iones that it should his chief reason was because the Son must make his conveyance by the Father and as to him he is barred As in a Writ of Right he ought of necessity to name his Father and that by way of Title so here But Crooke and Barckley contrary and their reason was because that here the Issue of the Unkle doth not claim in the right line but in the collateral Secondly because the naming of the father here is not by way of Title but by way of pedigree only Note that Serjeant Rolls in the Argument of the Serjeants case which was the very point said that this case was adjudged according to the Opinions of Crooke and Barckley viz. that the fine should not bar the Issue The Serjeants Case aforesaid was Trin. 17 Car. 165. Payne the elder and Payne the younger were bound joyntly and severally in an Obligation to Dennis who afterwards brought Debt upon the Bond against both And after appearance Dennis entred into a Retraxit against Payne the younger and whether this were a discharge of the elder also was the Question And this Term it was argued by Maynard for the Defendant that it was a discharge of Payne the elder also for it doth amount to a Release and it is clear that a release to one shall discharge both Rolls contrary that it goeth only by way of Estoppel and not as a release and therefore shall not bar Barckley Justice that it amounts to a Release and therefore shall discharge both 7 E. 4. Hickmots case in the 7 Rep. the Plaintiff shall not have judgment where he hath no cause of Action And here by his Retraxit he hath confessed that he hath no cause of Action and therefore he shall not have judgment Further a Retraxit is not an Estoppel but a Bar of the Action besides here he hath altered the Deed and it is not joynt as it was before like as where he interlines it or the like there the Deed is altered by his own act and therefore the other shall take advantage of it Crook Justice contrary for it is not a Release but quasi a Release and if the Obligâ—e sueth one and covenanteth with him that he will not further sue him the same is in the nature of a Release and yet the other shall not take advantage of it So in this case 21 H. 6. there ought to be an actual Release of which the other shall take advantage and therefore in this Case because it is but in the nature of an Estoppel the other shall not take advantage of it Sprigge against Rawlenson 166. IN a Writ of Error to reverse a Judgment given in the Common Pleas in an Ejectione firme the Case was R. brought an Ejectione firme against S. and declared of an Ejectment de uno mesuagio uno repositorio And the Jury found for the Plaintiff and assessâ—d damages entire upon which a Writ of Error was brought here and the Error which was largely debated was that Rep. sitâ—rium which was here put for a Ware-house is a word uncertain and of divers significations as appeareth by the Dictionary And therefore an Ejectione firme de uno repositorio is not good and by consequence the damages which are joyntly assessed are ill assessed And in an Ejectione firme seism shall be given by the Sheriff upon a Recovery as in a Precipe quod reddat and therefore the Ejectment ought to be of a thing certain of which the Sheriff may know how to deliver seifin otherwise it is not good Barckley and Crook Justices were that the Judgment should be affirmed and that it was certain enough but Iones and Bramston Chief Justice contrary that it was utterly uncertain For that is Repositorium in which a man reposeth any thing and an Ejectione firme de uno tenemento is not good because there are several â—enements So here because there are several Repositories and the Sheriff cannot tradere possessionem and afterwards Barckley released his Opinion and judgment was given that the Judgment given in the Common Pleas should be reversed Trinit 17º Car ' in the Common Pleas. 167. A Man having a Legacie devised unto him out of a Lease for years which Indenture oâ— Lease was in the hands of a Stranger The Legatee suâ—d the Executors in the Spiritual Court to assent to the Legacie And Evars Serjeant prayed a Prohibition because they order that the Lease should be brought into Court which they ought not to have done being in the hands of a stranger But the Prohibition was denied by the whole Court for they may make an executor assent to a Legacie out of a Lease and therefore may order that although that the Lease be in the hand of a third person that it shall be brought in to execute it For the Order although it be general binds only the Defendant and it was agreed by the Court that assets or not assets is triable by them Juxon against Andrewes and others 168. IN an Ejectione firme the Defendants pleaded not guilty the Jury found them not guilty for part and guilty in tanto unius messuagii in occupatione c. quantum stat super ripam and whether this Verdict were sufficiently certain so as the Court might give judgment upon it and execution thereupon might be had was the question And by Whitfield Serjeant the Verdict is certain enough it hath been adjudged that where the Jury find the defendant guilty of one Acre parcel of a Mannor that it was good so of the moiety of a Mannor which is as uncertain as in this case And it is as certain as if they had said So many feet in length and so many in breadth for if the certainty appeareth upon the view of the Sheriff who is to deliver the possession it sufficeth and Clark Serjeant who was of the same side said that it is a Rule in Law Quod certum est quod certum reddi potest and this may be reduced to certainty upon the view of the Sheriff and therefore it is certain enough Besides it is the finding of the Jury who are lay gents M. 8. Iac. in
REPORTS OR NEW CASES WITH Divers Resolutions and Judgements given upon solemn Arguments and with great deliberation AND The Reasons and Causes of the said Resolutions and Judgements COLLECTED By JOHN MARCH of Grayes Inne BARRESTER LONDON Printed by M. F. for W. Lee M. Walbanke D. Pakeman and G. Beadel M.DC.XLVIII REPORTS Easter-Term 15º CAROLI In the Kings Bench. IT was agreed by Justice Iones and Justice Barckley the Lord Chief Justice and Justice Crook being absent That if the Sheriff do arrest a man upon mesne processe and return a Cepi corpus and that the Defendant was rescued that no Action lieth against the Sheriff But if the party be taken upon an Execution an Action upon the Case lieth against him and so is the express Book of 16 E. 4. 2 3. Br. Escape 37. upon which Book Justice Iones said That it was adjudged in this Court as above is said 2. It was agreed by the Court That if a man in pleading derive an Estate from another man and doth not shew what Estate he had from whom he deriveth his Estate that is a good cause of Demurrer And Justice Iones said That if a man claim a Rent by Grant out of the Land of any other man it is not sufficient for him to say That such an one was seised and concessit but he ought to express of what Estate he was seised So is Dyer But in this Case it was agreed That the shewing of what Estate c. ought to be material to the maintenance and support of the Estate which he claimeth otherwise it is not necessary 3. An Action upon the Case for words was brought by one who was Journey-man and â—ore-man of a Shoomakers-shop which was his living and livelihood for these words viz. It is no matter who hath him for he will Cut him out of doors And farther the Plaintiff did aver that the common acceptance of these words amongst Shoomakers is That he will begger his Master and make him run away and shewed that he was particularly endamnified by speaking of those words And the Court was clear of Opinion that the Action would lie And these Rules were taken and agreed For some words an Action will lie without particular averment of any damage as to call a man Thief Traytor or the like these are malum in se And some words will not bear Action without particular averment of some damage as to say Such a one kept his wife basely and starved her these words of themselves will bear no Action but if the party of whom the words were spoken were in election to be married to any other and by speaking of these words is hindred there with such Averment they will bear an Action It was farther agreed That the words ought to be spoken to one that knows the meaning of them otherwise they are not actionable as in the principal Case they were spoken to a Shoomaker but if they had been spoken to any other who knew the meaning of them it had been all one And therefore scandalous words which are spoken to one in Welsh or any other Language which the party to whom they are spoken doth not understand are not actionable And it was agreed That some words which are spoken although of themselves they are not actionable yet being equivalent with words which are actionable they will bear an Action And therefore it was said by Justice Iones That in York-shire as I remember Straining of a Mare is as much as Buggering and because these do amount to as much with averment they will bear Action And all words which touch a man in his livelihood and profession will bear Action And the Opinion of the Court also was that the Averment ought to be That in this and shew it specially the Plaintiff was damnified and so it was agreed upon these Reasons that the Action did lie 4. The Opinion of the Court was upon a Judgment given there there ought to be two Scire facias one against the Principal the other against the Bail but one only is sufficient in the Common Pleas and that two Nichils returned do amount to Scire feci 5. There was a Contract made at Newcastle that a ship should sail from Yarmouth to Amsterdam and there was an Action of Debt brought upon the Contract at Newcastle and it was adjudged that the Action would not lie and the difference was taken betwixt a particular and limited Jurisdiction as in this case Newcastle is and a general Jurisdiction as one of the Courts at Westminster hath for in the first Case no particular Jurisdiction shall hold plea of a thing which is done in partibus transmarinis although the Original as the Contract in the principal Case be made in England but contrary in case of general Jurisdiction as any the Courts at Westminister have 6. The Custome of London is that any man in London may pass over or put over his Apprentices to any other man within the City King and Cokes Case 7. WIlliam Marshal and other Bailiffs had an Execution viz. a Capias ad satisfaciend ' against Coke and others which Bailiffs came to Coke's house and lay one night in his out-houses privily and the next morning they came to his dwelling-house and gave him notice of the Execution but Coke shut the doors of his house close so as the Bailiffs could not enter whereupon they brake the Glass-windows and the Hinge of the door endeavouring to enter whereupon Coke commanded them to be gone or he would shoot them notwithstanding which they did continue their ill-doing whereupon Coke shot Marshal one of the Bailiffs and whether this was Manslaughter or Murder was the Question And Rolls argued that it was not Murder for these causes 1. Because the act of the Bailiffs in breaking of the Glass and the Hinge of the door was an unlawful act and was at their pâ—ril Where the Kings Officer may break the house to serve any mean Process or Execution the differences are such as are in Semaynes Case C. 5. part 91 92. 1. betwixt Real and Personal Actions In Real Actions they may break the house to deliver seisin to him who recovereth contrary in Personal Actions 2. There is a difference in the case of the King and of a common person where the King is party in some cases his Officers may justifie the breaking of a house but not in the case of a common person 13 E. 4. 9. 18 E. 4. 4. 4 Rep. 4 9 Rep. 69. And therefore if they could not justifie the breaking of the house at the suit of a common person then in the principal Case they did a thing which was not warranted by Law and therefore the killing of one of them was not Murder But clearly if the Bailiffs had lawfully executed their Office then it had been Murder 2. It was not Murder because the person was in his House which is his Castle and defence which is a place priviledged by the Law 26. Ass.
23. 3 E. 3. 330 305. Besides the party is not bound to tarry till the Bailiffs come in and beat him 2 H. 4. 8. 19 H. 6. 31. 34 H. 6. 16. 43 Ass. pl 31. 3. This Authority which is given to the Kings Officer is given by the Law and if he execute it according to the Law the Law will protect him but if he exceed the priviledge given him by the Law then all he doth is illegal and he loseth its protection And he resembled it to the 6 Carpenters case C. 6. part Farther one may pretend he hath such a warrant when he hath it not of purpose to rob or do some other mischief And it was agreed by all the Justices nullo contradicente that it was not Murder but that it was Manslaughter for this reason especially because the Officer was doing an unlawful act not warranted by Law and therefore it was at his peril if he were killed And farther upon this difference there ought to be malice in fact or in Law to make Murder but in this Case there is none of them for it is apparent that there was no malice in fact and there is no malice implied for then it ought to be where a man kills another without any provocation or the Minister of Justice in the due and lawful execution of his Office which is not our Case for here he did an unlawful act at the time he was killed and therefore it was not Murder but Manslaughter There was a Case tried at the Sessions in the Old-Baily which was thus One Lovell had two Maid-servants and one of them without his knowledge had received into the house a Chare-woman who all being in their beds by her negligence let a Thief into the house and afterwards called out Thieves Thieves and afterwards Lovell came out of his Bed with a Sword in his hand and the Chare-woman calling to mind that she was there without his privity or his wifes hid her self behind the Dresser and Lovell's wife espying her there cried out Thieves Thieves for which Lovell came and ran her into the brest with his Sword And the Opinion of the Justices at the Old-Baily and also of all the Justices of the Kings Bench was That it was neither Murder nor Manslaughter Not Murder because there was no forethought malice not Manslaughter because he supposed her to be a Thief and if she had been a Thief then it was clear that it was not Manslaughter 8. It was resolved in the Chancery as the Judges of the Kings Bench said That where the Son is of full age and is ravished that the Father shall not recover Damages because the Son being of full age might marry himself without the consent of the Father and that was the reason given as I conceive and the Case was said to be Sir Francis Lees Case 9. The Book of Canons is that the Parson may Elect one Church-warden and the Parishioners another 10. There can be no Surrender without the Consent of the Reversioner 11. It was Libelled in the Ecclesiastical Court for these words Thou art a Drunkard or usest to be drunk thrice a week And thereupon Prohibition was Prayed and Granted and it was said and agreed That so it was adjudged betwixt Vinior and Vinior in this Court The Case in Dyer 254. b. where the Presentee was refused because he was a common haunter of Taverns c. was by Justice Barckley denied to be Law and so agreed by Justice Iones the Lord Chief Justice and Justice Crooke being absent But Justice Barckley was utterly against the Prohibition 1. Because the Action in the Ecclesiastical Court is only pro salute animae And 2. Because that Drunkenness is in their Articles and Presentable But Justice Iones granted a Prohibition and said that Linwood said well That if all things which are against the Law of God or words to that effect should be tried in the Ecclesiastical Court the Jurisdiction of the Temporal Court should utterly be destroyed 12. If there be an Indictment of Forcible Entry if it appear that the Plaintiff had seisin at the time of the Writ brought there can be no Writ of Restitution for the Statute â—aith If he Enter with Force or keep him out with Force but yet in that case the King shall have his Fine And there was an Indictment which was a principal Case at Bar which was That the Defendant adtunc adhuc doth keep the possession forcibly whereas the Plaintiff was in possession And thereupon a Writ of Restitution was awarded by reason of the word adhuc 3 E. 4. 19. it was adjudged That where there is Forcible Entry and Reteiner with Force that both are punishable although the Statute of 8 H. 6. 9. be in the disjunctive 13. Descent of a Copy-hold shall not take away Entry There ought to be a custome to enable the Lord of a Mannor to grant a Copy-hold in Reversion 14. In the Council of Marches of Wales they proceed according to Directions and they cannot exceed them and they 〈…〉 with Freehold for it is not within their 〈…〉 And they cannot hold Plea of Debt above fifty poundâ— 15. An Assignment of Rent to a Woman out of Land of which she is Dowable by Word is good but if she be not Dowable of the Land then the Assignment by Word is not good and void because that in the first Case it is according to common Right but in the last not 33 H. 6. 16. In a Writ of Error to Reverse a Judgment in an Action of Debt upon an Arbitrament the Error assigned was this That two did refer themselves to Arbitrament of their two several Arbitrators and there is no word of Submission that the same is Error and there was Error in the Entry of the Judgment the entry of which was in this manner Consideratum est and per Curiam is omitted and left out And for these Errors the Judgment was Reversed Smith's Case 17. ONe said of him Thou art forsworn and hast taken a false Oath at Hereford Assises against such a one naming the party And the Opinion of the Court the Chief Justice and Justice Crooke being absent was against the Action But they conceived that the Action would have lied if the Defendant had said Thou art forsworn and hast taken a false Oath at the Assises against such an one with Averment that he was sworn in the Cause 18. It was said at the Bar That it was adjudged in this Court in Appletons Case That where a man said unto another by way of Interrogatory Where is my Piece thou stolest from me that it was actionable Justice Iones remembred this case where one said J. S. told me that J. N. stole a Horse but I do not believe him This with Averment that I. S. did not say any such thing would bear an Action Justice Barkley said That an Action was brought upon these words You are no Thief and that these words with Averment which
imply an affirmative will bear an Action 19. It was said to a Merchant That he was a cousening Knave And the Opinion of the Court was the chief Justice and Justice Crooke being absent that the words were not actionable because he doth not touch him in his Profession for the words are too general But it was said That to call him Bankrupt was actionable And mall Cases where a man is touched in his Profession the words are actionable But to call a Lawyer a Bankrupt is not actionable Justice Iones said that Serjeant Heath brought an Action for these words One said of him That he had Vndone many and it was adjudged actionable because he touched him in his Profession 20. Kingston upon Hull is a Particular and Limited Jurisdiction and they held Plea of a Bond which was made out of their Jurisdiction and thereupon a Capias was awarded against the Obligor who was arrested upon it and suffered by the Sheriff to escape And the Opinion of the Court was clear That no escape would lie against the Sheriff upon the difference in the case of the Marshalsea That if the Court hold Plea of a thing within their Jurisdiction but proceed erroneously that it is avoidable by Error but if they have not Jurisdiction of the cause all is void and coram non Iudice 11 H. 4. and 19 E. 4. Acc. So in the principal Case for they held Plea of a thing which was out of their Jurisdiction and therefore the whole proceeding being void no Action can lie against the Sheriff for there was no Escape 21. Where a man is Outlawed and the Outlawry reversed notwithstanding the Original doth remain and the cause that the Original was determined was the Outlawry and now Cessante causa cessat effectus 22. A man made a Lease for years with exception of divers things and that the Lessee shall have conveniens lignum non sâ—â—ccidendo c. vendendo arbores c. Now the Lessee cut down Trees and the Lessor brought an Action of Covenant and the Opinion of the Court was That the Action would lie and that it is as a Covenant on the part of the Lessee because the Law gives him reasonable Estovers and by this Covenant he abridgeth his Priviledge 23. Justice Iones said and so it was agreed by the Court In what case soever there is a Contract made to the Testator or the Intestate or any thing which ariseth by Contract there an Action will lie for the Executor or Administrator but Personal Actions die with the Testator or Intestate 24. The Administrators of an Executor shall not sue a Scire facias upon a Judgment given for the Testator because the Testator now died Intestate because there is no privity And so it hath been many times adjudged 1 Rep. 96. a. 5 Rep. 9. b. The Earl of Oxford and Waterhouse Case in a Writ of Error to reverse a Fine 25. WAterhouse levied a Fine the Earl of Oxford pleaded that he was beyond Sea at the time of the Fine levied Waterhouse replied That he came here into England in August within the five years and upon that they were at issue The Jury found that he came over in Iuly And notwithstanding the Opinion of the Court was clear That the Writ of Error did not lie For although the Jury have found that he came over in Iuly yet the substance of the matter is that he was in England so as he might have made his Claim and therefore the Fine should bar him And Justice Barckley compared it to the Case of 10 Eliz. Dyer 271. b. which Case is a Quaere in Dyer but Resolved in the 6 Rep. 47. a. A man brought Debt against an Heir who pleaded that he had nothing by Descent The Plaintiff pleaded that he had Assets in London and the Jury found Assets in Cornwal and good for the substance is whether he had Assets or not 26. If a Nobleman who is not a Baron or Earl of this Realm in an Action brought against him or by him be named Knight and Earl of such a place it is good because that although he cannot be sued or sue another by the name of Earl Baron c. yet by the name of Knight he may and that is sufficient 27. Writ of Error was brought here to reverse a Judgment given in Ireland it is a Supersedeas to the Execution for although the Record it self is not sent over for fear of losing the same in the water or otherwise yet a transcript is made thereof which is all one And Justice Barckley compared it to the Case where a Writ of Error is brought in this Court to reverse a Fine in the Common Pleas there the Record it self is not sent but a Transcript thereof because we have not a Cirographer to receive it but the Transcript is all one Sir John Compton's Case upon the Statute of Winchester 13 Ed. 1. and 27 Eliz. of Robberies 28. SIr Iohn Compton Knight brought an Action against the Hundred of Olison or the like name for a Robbery done upon Red-hill in the County of Surry within the aforesaid Hundred and the Robbery was done upon his man and five hundred and ten pounds was taken from him And in this Case it was agreed by the Justices That although there be a remisness or negligence in the party who was robbed to pursue the Robbers or that he did refuse to lend his Horse to make Hue and Cry yet this doth not take away his Action nor excuse the Hundred if notice be given with as much convenient speed as may be as the Statute of 27 Eliz. speaks for them to make Hue and Cry And although the Party who was robbed doth not know the Robbers at the present time and thereof takes his Oath before a Justice of Peace as the Statute of 27 Eliz. hath provided and afterwards comes to know them and so he affirm yet this doth not take away his Action And it was resolved also that notice given in one Hundred five miles from the place where he was robbed is sufficient and the reason is because that the party who is a stranger to the Country cannot have conusance of the nearest place or Town Chief Justice That notice given at one Town and Hue and Cry levied at another is good And the Jury found for the Plaintiff And thereupon a Quaere was made by one who was of Counsel with the Hundred Whether such persons who become Inhabitants after the Robbery and before the Iudgment whether they should contribute And Justice Barckly said That all who are Inhabitants at the time of the Execution should pay it 29. A Vicar cannot have Tithes but by Gift Composition or Prescription For all Tithes de jure do appertain to the Parson 30. A man was bound to the Good Behaviour for Suborning of Witnesses Plowden against Plowden 31. PLowden the Son brought Trespass against Plowden the Father for taking the Plaintiffs Wife cum bonis viri And
the Process was lest at the Defendants house being sixty miles from London and twelve pence to bear his charges which the party did accept And the party who served the Process promised the Defendant sufficient costs And here Mr. Iones who was of Counsel with the Defendant took three Exceptions 1. Because the Process was not served upon the Defendant as the Statute requires but a Note only thereof and it being a Penal Statute ought to be taken strictly 2. There was but 12 d. delivered to the Defendant at the time of the serving of the Process which is no reasonable sum for costs and charges according to the distance of place as the Statute speaks and therefore the promise that he would give him sufficient for his costs afterwards is not good 3. The party who recovers by force of this Statute ought to be a party grieved and damnified as the Statute speaks by the not appearance of the Witness and because the Plaintiff hath not averred that he had loss thereby by his not appearance therefore he conceived the Action not maintenable For the first the Court was clearly against him because it is the common course to put divers in one Process and to serve Tickets or to give notice to the first persons who are summoned and to leave the Process it self with the last only and that is the usual course in Chancery to put many in one Subpoena and to leave a Ticket with one and the Label with another and the Writ with the third and that is the common practice and so the Statute ought to be expounded But if there be one only in the Process there the Process it self ought to be left with the party For the second the Court did conceive That the acceptance should bind the Defendant but if he had refused it there he had not incurred the penalty of the Statute For he ought to have tendred sufficient costs according to the distance of the place which 12 d. was not it being 60 miles distant But for the third and last Exception the Court was clear of Opinion That the Action would not lie for want of Averment that the Plaintiff was damnified for the not appearance of the Defendant And so it was adjudged that the Plaintiff Nihil capiat per Billam 44. The Opinion of the Court was That whereas one said of another That he will prove that he hath stollen his Books that the words are actionable for they imply an affirmative and are as much as if he had said That he hath stollen my Books And so if I say of another That I will bring him before a Iustice of Peace for I will prove that he hath stollen c. although the first words are not actionable yet the last are Molton against Clapham 45. THe Defendant upon reading Affidavits in Court openly in the presence and hearing of the Justices and Lawyers said There is not a word true in the Affidavits which I will prove by forty Witnesses and these words were alledged to be spoken maliciously And yet the Court was clear of Opinion that they will not bear Action And the reason was because they are common words here and usual where an Action is depending betwixt two for one to say That the Affidavit made by the other is not true because it is in defence of his cause And so it was here The Defendant spake the words upon the reading of the Affidavits in a cause depending betwixt the Plaintiff and the Defendant And therefore if I say That J. S. hath no Title to the Land if I Claim or make Title to the Land Or if I say That J. S. is a Bastard and entitle my self to be right Heir the words are not actionable because that I pretending Title do it in defence thereof And Justice Barckley said That there are two main things in Actions for words the words themselves and causa dicendi and therefore sometimes although that the words themselves will bear Action yet they being considered causa dicendi sometimes they will not bear Action Now in our Case causa dicendi was in his own defence or his Title and therefore they will not bear Action 46. Outlawry was reversed for these two Errors 1. Because it was not shewed where the party Outlawed was inhabitant 2. Because it was shewed that Proclamations were made but not that Proclamation was made at the Parish-Church where c. Buckley against Skinner 47. THere was Exception taken because that the Defendant pleaded and justified the Trespass cum equis and said nothing to the Trespass done porcis bidentibus And the Opinion of the Court was That the Plea was insufficient for the whole And Justice Iones said That if several Trespasses are done to me and I bring Trespass and the Defendant justifie for one or two and sayeth nothing to the other that the whole Plea is naught because the Plea is intire as to the Plaintiff and the demurrer is intire also But Justice Barckley was of Opinion that the Plea was naught quoad c. only and that Judgment should be given for the other Vide 11. Rep. 6. b. Gomersall and Gomersalls Case 48. A man pleaded a descent of a Copy-hold in Fee The Defendant to take away the descent pleaded That the Ancestor did surrender to the use of another absque hoc that the Copy-holder died seised And the Opinion of the Court was That it was no good traverse because he traversed that which needed not to be traversed for being Copy-hold and having pleaded a surrender of it the party cannot have it again if not by surrender Like the Case of a Lease for years Helliers Case 6 Rep. 25. b. For as none can have a Lease for years but by lawful conveyance so none can have a Copy-hold Estate if not by surrender But if a man plead a descent of inheritance at the Common Law there the defendant may plead a feoffment made by the Ancestor absque hoc that he died seised because he may have an estate by disseism after the feofment Traverse of the descent and not of the dying seised is not good so was it adjudged in this Court Vide 24 H. 8. Dyer 49. It was moved in Arrest of Judgment upon an Action of Trespass upon the Statute of 2 E. 6. cap. 13. because that the Plaintiff said that the Defendant was Occupier only and did not shâ—w how he occupied or what interest he had And the 〈◊〉 â—pinion of the Court was that he need not because here he makes no Title and whosoever it be that taketh the Tithe is a Trespasser And therefore Justice Iones said That it was adjudged in this Court that an Action lieth against the disseisor for the Tithes so against a servant and so if one cut them and another carry them away an Action lieth against any of them 50. The Parish of Ethelburrow in London alledged a custome that the greater part of the Parishioners have used to
choose their Church-wardens and they chose two the Parson chose a third The Official of the Bishop gave Oath to one of them chosen by the Parish but refused to swear the other and would have sworn the party chosen by the Parson but the Parish was against it upon which the Parson Libelled in the Ecclesiastical Court And a Mandat was here praid That the Official swear the other who was chosen by the Parish and a Prohibition to stay the Suit in the Ecclesiastical Court. Upon the Mandat the Justices doubted and desired that Presidents and Records might be searched and at length upon many Motions Presidents and Records shewed a Mandat was granted But there being Suit in the Ecclesiastical Court bâ— the other whom the Parson chose a Prohibition was granted without any difficulty But at first the Counsel prayed a Prohibition for not swearing the other which the Court refused to grant because there was no proceeding in the Ecclesiastical Court and a Prohibition cannot be granted where there is no proceeding by way of Suit Vaughan against Vaughan in Action upon the Case upon Assumpsit 51. THe Defendant did promise that he would make such a Conveyance of certain Lands and pleaded That he had made it but did not shew the place where it was made And the Court was clear of Opinion that he need not for it shall be intended upon the Land And so in case of performance of Covenants it is not needful to shew the place where c. Norrice and Norrices Case 52. COpy-holder for life where the custome is That if the Tenant die seised that he shall pay a Heriot The Lord granted the Seigniory for 99 years if the Tenant should so long live And after that he made a Lease for 4000 years Tenant for Life is disseised or more properly ousted and died Here were two Questions 1. Whether there were any Heriot to be paid and admitting there were yet who should have it whether the Grantee for 99 years or he who had the 4000 years And the Court was clear of Opinion in both points without any argument 1. That a Heriot was to be paid not withstanding that the Tenant did not die seised because he had the estate in right and might have entred although he had not the possession And Justice Barckley compared it to the Case in C. 3. Rep. 35. a. in Butler and Bakers Case where a man hath one acre of Land holden in Capite and a hundred acres of Socage Land and afterwards he is disseised of the Capite Land and afterwards makes his will of all his Socage Land in that case he is a person having of Capite Land as the Statute speaks And yet that right of Capite Land shall make the devise void for the third part for notwithstanding the disseisin yet he is Tenant in Law And as to the second point the Court was clear of Opinion also That he in remainder or he that had the Estate for 4000 years for note the Action was brought by him in the Remainder for the Heriot should not have it And their reason was because the Tenant for life was not the Tenant of him who had the future interest of 4000 years but of him who had the interest for 99 years But they were not clear of opinion that the Grantee for 99 years should have the Heriot Justice Barckley was that the Grantee for 99 years should have it But Justice Iones there being then none in Court but they haesitavit And the reason of the doubt was because that eo instante that the Tenant died eodem instante the estate of the Grantee for 99 years determineth Justice Iones put this Case A Seigniory is granted for the life of the Tenant the remainder over in fee the Tenant dieth Who shall have the Ward Justice Barckley said he who is Grantee of the particular estate but Iones seemed to doubt it Vide 44 E. 3. 13. Lewes against Jones in a Writ of Error 53. JUdgment was given for Iones against Lewes in an Action brought in the Common Pleas And Lewes here brought a Writ of Error and assigned for Error That he was an infant at the time of the Action brought against him And that he appeared by Attorney whereas he ought to appear by Guardian or procheine amy The defendant pleaded in avoidance of this Writ of Error That there was no Warrant of Attorney The Plaintiff allegando shewed the Error before And the Defendant pleaded in nullo erratum est And the Judgment was reversed But the Opinion of the Court was That the better way had been for the Plaintiff to have demurred in Law for there being no warrant of Attorney there was no appearance at all and so are the Books 38 E. 3. and 14 E. 4. 54. In Vtburt and Parhams Case it was agreed That a man may be Non-suit without leave of the Court but he cannot discontinue his Suit without consent of the Court. Davis and Bellamies Case in Attaint 55. THe Defendant brought Attaint and the Verdict was affirmed and Costs prayed upon this Rule that where the Plaintiff shall have costs there the Defendant shall have costs But they were denied by the Court for that ought to be taken in the original Action and not in case of Attaint But upon the restituatur there costs shall be given but that is in the original Action 56. If two joynt-tenants be of a Rectory and one sueth for Tithes by himself only it is nâ— cause of Prohibition So if a Feme Covert sue solely upon a desamation a Prohibition shall not be granted 57. The Sheriff of a County made a Warrant Balâ—ivis suis to arrest the body of such a man and the Bayliffs of the Liberâ—y return a Rescous And Exception was taken to it because that the Warrant was Ballivis suis and the Return was made by those who were not his Bayliffs and it was adjudged for the Liberty might be within his Bayliwick and so are all the Presidents And there was another Exception because the place of the Rescous was not shewed and for that the Book of 10 E. 4. was cited for there the Rescous was adtunc ibidem and did not shew the place To that it was answered by the Court and agreed that adtunc ibidem is altogether incertain if the place be not shewed but in the principal Case the place was shewed at the first and always after that tunc ibidem only without naming of the place and adjudgâ—d good For that tunc ibidem throughout the Declaration hath reference to the place first shewed and it was adjudged good 58. Outlawry was reversed for this Error because that the Exigent was Secund exactus ad Com' meum ibidem c. 59. A Hundred may prescribe in Non decimando and it is good for it is the custome of the County which is the best Law which ever was But a Parish or a particular Town cannot prescribe in Non decimando And
Common Law there notwithstanding he shall recover costs also So in our Case these being Acts of Creation which give remedy where there was no remedy before shall be taken strictly according to the Letter and shall not extend to such penalties as in our case And upon this difference he cited the Cases in Pilfords case and especially the Case upon the Statute of 5 E. 6. of Ingrossers the Plaintiff shall not recover costs but only the penalty given by the Statute grounded upon 37 H. 6. 10. I agree That there be many Presidents in the Common 〈◊〉 That damages have been allowed in our very Case but that is the use of the Clerks and passed sub silentio without any solemn debate or controversie Vide Greislies case and the first Case of the Book of Entries Presidents and Judgments in this Court Pasch. 33 Eliz. Rot. 292. Halesworth against Chaffely A Judgment of the Common Pleas was reversed for this very point M. 36 Eliz. Ruddal and Wilds Case M. 44 45 Eliz. Rot. 22. Shepwiths Case Avowry for relief a stronger case Judgment was reversed because damages was assessed Hill 14 Iac. Rot. 471. Leader against Standwell in a Replevin Avowry was made for an Amercement in a Leet and found â—or the Dâ—fendant and damages assessed But the Entry upon the Record was thus Super quo nullo habito respectu c. The Plaintiff was discharged of the damages because nulla damna debent esse adjudicanda per Legem terrae but he shall have his costs But it was objected by Justice Crook That by the Statute of 4 Iac. c. 3. which giveth costs and damages to the Defendant in certain Actions there specified where the Plaintiff shall recover damages and that where the Plaintiff is Non-suit or verdict pass against him That Demurrer hath been construed to be within that Statute Notwithstanding that it is an Act of Creation I agree that and answer that Demurrer is within that Statute and the mischief of it but it is not so in our Case for in our Case there is no such mischief For there is no colour to extend it beyond the words of the Statute For which cause I conclude that the Judgment in this case ought to be reversed 65. A Clerk of the Court dwelling in London was chosen Churchwarden and prayed a Writ of Priviledge which was granted And it was agreed by the whole Court That for all Offices which require his personal and continual attendance as Churchwarden Constable and the like he may have his Priviledge but for Offices which may be executed by Deputy and do not require attendance as Recorder and the like from which the Justices themselves shall not be exempt for them he shall not have his Priviledge And where he hath his Priviledge for the not obeying thereof an Attachment lieth Swift against Heirs in Debt upon the Statute of 2 E. 6. for setting out of Tythes 66. THe doubt in this Case did arise upon two several Indentures found by special verdict which were made by the Vicar and Subchauntors Corrols of Lichfield one 2 E. 6. the other 2 3 Phil. Mar. The Question upon the Indenture of 2 E. 6. was Whether the Grant upon the Habendum be a grant of a Freehold to begin at a day to come or not The chief Justice Justice Crooke and Justice Barckley were clear of Opinion That it was a grant of a Freehold to begin at a day to come And for that the Case is thus In the Indenture of 2 E. 6. there is a recital of a former Lease for years And by this Indenture in 2 E. 6. another Lease was to begin after the first Lease determined the remainder in Fee to another And upon that the three Justices before were clear in their Judgments That it was a Grant of Freehold to begin at a day to come which without doubt is void 8 H. 7. 39 H. 6. and Bucklers case 3 Rep. And in 8 H. 7. the difference is taken betwixt the grant of a Rent in esse and Rent de novo A Rent de novo may be granted in futuro but not a Rent which is in being But Justice Iones in this Case was of Opinion That here is not any grant of a Freehold to begin at a day to come because in this case the Lease doth begin presently because the Lease recited is not found by the Jury and therefore now it is all one as if there had been no Lease at all contrary in the case of the King because it passeth a good estate of Inheritance to the Grantee And therefore if I make a Lease for years unto a man after the expiration of such a Lease where in truth there is no such Lease in being the Lease shall begin presently The Question upon the Indenture of 2 3 P. Mar. was no more but this The Vicar and Subchauntors of Lichfield made a Grant of all their Tithes in Chesterton and name them in certain and in specie as Tithe-wool Tithe Geese Pigs Swans and the like and that in a distinct clause with especial Exception of four certain things After which came this clause All which were in the Tenure of Margaret Pâ—toe And the Jury sound that none of these Tithes were in hâ—r Tenure And whether that Grant were void or not was the Question And resolved by the whole Court nullo contradicente That the Grant notwithstanding this fallâ— reciâ—al was good For these reasons But first it was resolved That where they grant all their Tithes in Chesterton that it is a good grant and hath sufficient and convenient certainty 13 E. 4. and â—â—â—lands Case There are two Generalities 1. Absolute 2. Genâ—â—al in particular â—o here And in our Case it is as câ—râ—ain that demand in an Action may be for them by the name of all their Tithes in Chesterton So in the like manner an Action of Ejectione firme will lie For an Ejectione firme will 〈◊〉 for Tithes as it hath been adjudged here If the King grant all his Lands it is altogether incertain and void but if the King grant all his Lands in Dale or which came to him by the dissolution of such an Abby it is good because it is a generalâ—y in particular And it was agreed that convenient certainty is sufficient And therefore it was said by Justice Iones That if I grant all my Rents in Dale which I have of the part of my Mother that he conceives the same to be good The first reason wherefore this grant shall be good notwithstanding the false recital was this because the words here All which c. are not words of denotation or restriction but of suggestion or affirmation and therefore shall not make void the Grant And here the difference was taken between the Case of a common person and of the King Suggestion which is false in the Case of the King makes the Patent void but contrary in the case of a common person And
made a Feoffment to the use of himself for life the remainder in tail to I. S. He in the remainder Levied a Fine And the Counsel of the Marches upon a surmise That the Tenant for life died seised according to their Instructions would settle the possession upon the heir of Tenant for life against the Conusee For their Instructions were made That where a man had the possession by the space of three years that the same should be settled upon him until trial at Law were had But the whole Court was against it because it doth appear that he had but an estate for life and so the possession appertained to him in the remainder And here it was said by Justice Barckley that their Opinion hath been That the possession of Tenant for life should be the possession of him in the Remainder as to this purpose Note that the Principal case here was although the Case before put was also agreed for Law thus Tenant in Tail levied a Fine to the use of himself for Life the remainder in Fee to I. S. and died In that Case the Council in the Marches would settle the possession upon the heir of Tenant in tail against the Purchaser who held in by the Fine which had bar'd the estate tail by which the Issue claimed and the whole Court was against it for which cause a Prohibition was granted 80. Habeas corpora was directed to the Porter of Ludlore to bring the bodies of Iohn Shielde and William Shielde into the Kings Bench the case shortly as appears upon the retorn was this Powell the Father brought a Bill in the nature of an Information against the said Iohn and William Shield before the Council of the Marches in Wales for an unlawful Practice Combination and Procurement of a clandestine Marriage in the night betwixt Mary Shield a Maid-servant and the Son of Powell who was a Gentleman of good credit and worth the Parson also being Drunk as he himself sware and the same also being without Banes or Licence for which offence they were severally Fined to the King and an hundred Marks damages given to the Plaintiff and farther ordered by the Council that they should be imprisoned till they paid their several fines to the King and damages to the Party and found Sureties to be bound in Recognisance for their good behaviour for one year and till they knew the farther Order of the Council and these were the causes which were retorned And upon this retorn Glynn who was of Counsel with the Prisoners moved many things and many of them as was conceived by the Court altogether impertinent But the Objections which were pertinent were these First That the Councel of the Marches as this case is have no Jurisdiction because the clandestine Marriage is a thing meerly Spiritual and therefore not within their instructions The second was That they have exceeded their Instructions in that they have given damages to the party above fifty pounds For by their Instructions they ought not to hold Plea where the Principal or Damages exceed fifty pounds But as to the first he said there may be this Objection That they did not punish them for the clandeâ—â—inâ— Marriagâ— which in truth is a thing meerly Spiritual but for the unlawful Practise and Combination and for the execution of it To which he answered That they have not Juristiction of the Principal and therefore not of the Accessory here note that it was afterwards said by Bramston Chief Justice That the unlawful Practise and Combination was the Principal and the clandestine Marriage but the Accessory which was not contradicted by any Farther it was objected by Glynn That they were Imprisoned for the damages of the Plaintiff and it doth not appear whether it was at the Prayer of the Party as he ought by the Law Bankes the Kings Atturny-General contrary And as to the first Their Instructions give them power to hold Plea of unlawful Practises and Assemblies And this is an unlawful Practise and Assembly and therefore within their Instructions And although that Heresie and clandestine Marriage and such offences per se are not within their Instructions yet being clad with such unlawful circumstances and practises they are punishable by them As to the second he said The Instruction which restraineth them that they do not hold Plea above fifty pounds is only in civil Actions at the several suit of the party But there is another Instruction which gives them power where the cause is criminal to assess damages according to the quality of the Offence and at their discretions As to the third Objection he said That the Retorn being that they were in execution for the damages it ought to be meant at the Prayer of the Party otherwise it could not be For which causes he prayed thâ—â— the Prisoners might be remanded And the whole Court Crooke being absent were clear upon this Retorn That they should be remanded because it appeareth that their Fines to the King were not payed And therefore although that the other matters had been adjudged for them yet they ought to be remanded for that one And as to the Objections which were made the Court agreed with Mr. Attorney except in the point of Damages and for the same reasons given by him But as to the point of the Damages whether they have gone beyond their Instructions and so exceeded their power in giving above fifty pounds damages or not It seemed to the Court they had and as it seemed to them if the Retorn had been That the Kings Fines were paid it would have been hard to maintain that the assessing above fifty pounds damages was not out of their Instructions but because the Kings Fines were not paid they were Remanded without respect had thereunto for the reasons given before 81. It was said by the Court That when Judgment is given in this Court against another and Execution upon it and the Sheriff levieth the mony the Lord Keeper cannot order that the mony shall stay in the Sheriffs hands or order that the Plaintiff shall not call for it for notwithstanding such Order he may call for it And it was farther said by the Court That an Attachment shall not be granted against the High Sheriff for the contempt of his Bayliffs And a Writ of Error is a Supersedeas to an Execution but then there ought to be notice given to the Sheriff otherwise if he notwithstanding serve the Execution he shall not run in contempt for which an Attachment shall be granted 82. Serjeant Callis came into Court and moved this case Chapman against Chapman in Trespass done in Lands within the Dutchy of Cornwal which were Borough-English where the custome was that if there were an estate in Fee in those Lands that they should go to the younger Son according tthe custome but if in Tail the should descend to the Heir at Common Law And it was moved by him that the custom was not good because it cannot
cannot question the whole life of the Witness as that he is a Whoremaster c. But if he hath done such a notorious fact which is a just exception against him then they may except against him That was Onbies case of Grays-Inn and by all the Judges it was agreed as before And by Reeve Justice If a Counsellor say to his Client that such a Contract is Simony and he saith he will make it Simony or not Simony And thereupon the Counsellor that a Simoniacal Contract it is no offence in the Counsellor Pasch. 17º Car. in the Kings Bench. 137. PRescription to have Common for all his cattle Commonable is not good for thereby he may put in as many beasts as he will But a Prescription to have Common for his cattle commonable levant and couchant is a good Prescription And it was said that that was Sayes case of the County of Lincoln adjudged in this Court 138. In Tompson and Hollingsworths case it was agreed That a Court of Equity cannot meddle with a cause after it hath received a lawful Trial and Judgment at the Common Law although that the Judgment be surreptitious 139. The Statute of 31 Eliz. enacts That if a man be presented admitted instituted and inducted upon a Simoniacal contract that they shall be utterly void c. Whether the Church shall be void without deprivation or sentence declaratory in the Spiritual Court or not was the Question in a Quare impedit brought by Sir Iohn Rowse against Ezechiel Wright Rolls and Bacon Serjeants That it is absolutely void without sentence declaratory c. Where the Statute makes a thing void it shall be void according to the words of the Statute unless there shall be inconvenience or prejudice to him for whom the Statute was made The Statute of 8 H. 6. cap. 10. That an utlagary shall be void if process do not issue to the place where the party is dwelling yet it is not void before Errour brought The Statutes of 1 Eliz. 31 Eliz. That all Leases by a Bishop not warranted c. shall be void They are not void but voidable only which agreeth with the reason of the Rule given before The Statute of 18 H. 6. 6. That if the King grant Lands by Patent not found in the Office that the Patent shall be void it is void presently M. 30 H 6. Grants 92. and Stamford 61. although they be matter of Record The Statute of 31 Eliz. is expresly that it shall be void frustrate and of none effect therefore by the Rule before given it shall be absolutely void M. 10 Iac. Stamford and Dr. Hutchinsons case Resolved that an Incumbent presented by Simony cannot sue for Tythes against his Parishioners a villain purchaseth an Advowson the Church becomes void the Lord presents by Simony and the Clark is admitted Institute and Inducted yet it is void and doth not gain the Advowson to the Lord. Institut 120 a. If an Incumbent take a second Benefice the first is meerly void 4 Rep. Hollands Case The difference is where it is of the value of 8 l. where not And there is difference betwixt avoidance by Statute and avoidance by the Ecclesiastical Law Avoydance is a thing of which the Common Law takes notice and shall be tried by Jury if it be avoydance in fact if an avoydance in Law by the Judges If a Parson doth not read the Articles according to the Statute of 13 Eliz. it is ipso facto void without sentence 6 Rep. 29. Greens case 30 Eliz. Eatons case Instit. 120. a. express in the point And the difference is that before the Statute of 31 Eliz. it was only voidable by deprivation but now by the Statute it is absolutely void Mich. 9 Iac. Cobbert and Hitchins case Mich. 42 Eliz. Baker and Rogers case 2 Iac. Goodwins case in Com' Banc. in all which cases it was not resolved but passed tacitely and without denial That a Presentation by Simony was void without declaratory Sentence It was objected that it is clear by the Ecclesiastical Law it is not void without a Sentence declaratory It is answered Of things of which our Law and the Ecclesiastical Law take conusance we are only to relie upon our Law and not upon the Ecclesiastical Law especially when the Ecclesiastical is repugnant or contrary to our Law as in this Case it is The Judges of the Common Law shall judge the Church void or not void Fitz. Annuity 45. 12 13 Iac. in the Kings Bench Hitchin and Glovers case in an Ejectione firme In this case it was resolved That if I. S. marry two wives the Judges of the Common Law may take conusance of it yet marriage is meerly an Ecclesiastical thing It was objected That the first branch of the Statute of 31 Eliz. that it shall be void c. Secondly that it shall be void as if he were naturally dead c. So that the adding of these words as if he were naturally dead in the later clause prove that it was the meaning of this Statute that it should not be void in the first case without Sentence declaratory It is answered There is a difference in words not in substance or the intent qui haeret in litera c. Iermin and Taylor Serjeants That it is not void before Sentence c. First Admission Institution and Induction are Judicial acts and done by the Bishop and therefore shall not be void before an act done to make them void which is Sentence declaratory or deprivation Secondly the Statute of 31 Eliz. saith it shall be void not that it is c. Thirdly the Ecclesiastical Lâ—w is That no Presentation c. shall be void before Sentence c. Fourthly the Ecclesiastical Law is Judge of it c. Plenarty shall be tried by the Bishop not by Jury 6 Rep. 49. a. Refusal shall not be tried by Jury but Death shall 5 Rep. 57. 9 H. 7. Profession shall be tried by the Spiritual Court 4 Rep. 71. b 4. vid. 4. Rep. 29. a. the credit which our Law gives to the Ecclesiastical Law It is there put That one was divorced without his knowledge which was said to be a strange case Fifthly the Presentee by Simony doth remain Incumbent de facto although not de jure and that by the words of the Statute which makes the Church void as to the King only not as to the Incumbent without declaratory Sentence and the Church is no more capable to have two Incumbents than a woman to have two husbands There is a difference where the Incumbent presented by Simony is alive the same is not void in facto without sentence declaratory but if he be dead there itis And this difference stands upon the two clauses in the Statute of 31 Eliz. And the Statute of 17 Car. of Election of Burgesses taken notice of Avoidance de facto de jure Trinit 16 Car. in Com. Banc. Ogelbics case One was Presented within the age oâ— twenty
it turns the Avowry into a Justification in our Case so as you shall not make us Trespassers but that we may well justifie to save our damages Crawley Justice that the Avowry is turned into a Justification and that there is sufficient substance in the Plea to answer the unjust taking the distress Justice Reeve that it is good by way of Avowry for the distress being lawfully taken at the time it shall not take away his avwry therefore he shall have Retorn for that was as a gage for the rent and therefore differs from the other Cases Justice Foster put this Case at the Common Law Distress was taken and before avowry Tenant for life died Whether he shall avow or justifie But all agreed that at the least the Avowry is turned into a Justification but it was adjourned 179. The Court demanded of the Protonotharies Whether a man might make a new assignment to a special Bar and they said no but to a common Bar only viz. that the Trespass if any were was in Bl. Acre there ought to be a new assignment by the Plaintiff but Reeve and Crawley Justices the other being absent held clearly that the Plaintiff might make a new assignment to a special Bar and further they said that the Plaintiff if he would might trise the Desendant upon his Plea but we will not suffer him to do so because that his Plea is meerly to make the Plaintiff to shew the place certain in his Replication in which the Trespass was done 180. The Disseisee levieth a Fine by Reeve and Crawley Justices it shall not give right to the Disseisor because that this Fine shall enure only by way of Estoppel and Estoppels bind only privies to them and not a stranger and therefore the Disseisor here shall not take benefit of it and therefore they did conceive the 2 Rep. 56. a. to be no Law Vid. 3 Rep. 90. a 6 Rep. 70. a. 181. Serjeant Callis prayed a Prohibition to the Court of Requests for cause of priority of Suit but by Foster and Crawley Justices the other being absent priority of Suit was nothing the Bill being exhibited there before Judgment given in this Court 182. The Case of White and Grubbe before being moved again it was said in this case by Reeve and Foster Justices that where a man is indebted unto another for divers wares and the debt is superannuated according to the Statute of 21 Iac. cap. 16. and afterwards they account together and the party found to be indebted unto the other party in so much mony for such wares in that Case although that the party were without remedy before yet now he may have debt upon accompt because that now he is not bound to shew the particulars but it is sufficient to say that the Defendant was indebted to the Plaintiff upon accompt pro diversis mercimoniis c. 183. A Prohibition was prayed unto the Council of the Marches of Wales and the Case was thus A man being posfessed of certain goods devised them by his will unto his wife for her life and after her decease to I. S. and died I. S. in the life of the wife did commence Suit in the Court of Equity there to secure his Interest in Remainder and thereupon this Prohibition was prayed And the Justices viz. Banks Chief Justice Crawley Foster Reeve being absent upon consideration of the point before them did grant a Prohibition and the reason was because the devise in the remainder of goods was void and therefore no remedy in equity for Aequitas sequitu◠legem And the Chief Justice took the difference as is in 37 H. 6. 30. Br. Devise 13. and Com. Welkden Elkingtons Case betwixt the devise of the use and occupation of goods and the devise of goods themselves For where the goods themselves are devised there can be no Remainder over otherwise where the use or occupation only is devised It is true that heir looms shall descend but that is by custome and continuance of them and also it is true that the devise of the use and occupation of Land is a devise of the land it self but not so in case of goods for one may have the occupation of the goods and another the Interest and so it is where a man pawns goods and the like For which cause the Court all agreed that a Prohibition should be awarded Trin. 17º Car. in the Kings Bench. 184. A Man was sued in London according to the custom there for calling a woman Whore upon which a Habeas corpus was brought in this Court and notwithstanding Oxfords case in the 4 Rep. 18. a. which is against it a Procedendo was granted and it was said by Serjeant Pheasant who was for the Procedendo and so agreed by Bramston Chief Justice and Justice Malle◠That of late times there have been many Procedendo's granted in the like case in this Court 185. An Orphan of London did exhibite a Bill in the Court of Requests against another for discovery of part of his estate And Serjeant Pheasant of Counsel with the Defendant came into this Court and Prayed a Prohibition upon the custom of London That Orphans ought to sue in the Court of Orphans in London but the whole Court which were then present viz. Chief Justice Bramston Heath and Mallet Justices were against it because that although the Orphan had the Priviledge to sue there yet if he conceive it more secure and better for him to sue in the Court of Requests then he may waive his priviledge of suing in the Court of Orphans and sue in the Court of Requests for quilibet potest renunciare juri pro se intraducto c. and Heath said that he always conceived the Law against the Case of Orphans 5 Rep. 73. b. But which is stronger in this Case the Court of Orphans did consent to the Suit in the Court of Requests and therefore there is no reason that the Defendant should compel the Infant to sue there wherefore they would not grant a Prohibition but gave day until Mich. Term to the Defendants Counsel to speak further to the matter if they could Trin. 17º Car. in the Common Pleas. Dewel against Mason 186. IN an Action upon the Case upon an Award the case was this The Award was that the Defendant should pay to the Plaintiff eight pound or three pound and Costs of suit in an Action of Trespass betwixt the Plaintiff and Defendant as appears by a note under the Plaintiffs Attorneys hand ad libitum defendentis c. And the Plaintiff doth not aver that a note was delivered by the Attorney of the Plaintiff to the Defendant and the Defendant pleaded Non assumpsit and it was found for the Plaintiff and it was moved in arrest of Judgment for the reason given before Rolls contrary that there needs no averment and he said it was Wilmots case adjudged in this Court Hill 15 Car. where the Case was that the Defendant should
age should be which should be a great mischief And where it is objected it may be for his benefit To that he answered that the Law will not leave that to him to judge what shall be for his benefit what not and to this purpose amongst other he cited it to be adjudged That where an Infant took a shop for his trading rendring renâ— and in debt brought for the rent the Infant pleaded his Infancie the other replied that it was for his benefit and livâ—lihood and yet it was adjudged for the Infant vid. 13 H. 4. 12. 10 H. 6. 14. Books in the point and therefore he prayed that Judgment might be stayed Bramston Heath and Mallet Justices Barckley being then impeached for High Treason by the Parliament were clear of Opinion That the submission by an Infant was void and they all agreed That if the Infant was not bound that the man of full age should not be bound so that it should be either totally good or totally void But Ward who was of Counsel with the Plaintiff said that the case was not that the infant submitted himself to the award but that a man of full age bound himself that the Infant should perform the Award which was said by the Court quite to alter the Case To that Trevor said that the case is all one for there cannot be an Award if there be not first submission and then the submission being void the Award will be void and so by consequence the Bond and to prove it he cited 10 Rep. 171. b. where it was adjudged that the non-performance of a void Award did not forfeit the Bonâ— and many other Cases to that purpose And the Court agreed That if the Condition of a Bond recite that where an Infaâ—â— hath submitted himself to an Award that the Defendant doth bind himself that the Infant shall perform it that the samâ— makes the Bond void because the submission being void allâ— void and therefore day was given to view the Record 190. A. and B. are indicted for murder B. flies and A. brings a Certiorare to remove the Indictment into the Kingâ— Bench Whether the whole Record be removed or but partâ— Keeling the younger said that all is removed and that theâ— cannot be a Transcript in this Case because he said the Writ saith Recordum processus cum omnibus ea tangentibus but the Chief Justice doubted of it and he said that the Opinion of Markham in one of our Books is against it and he said it should be a mischievous case if it should be so for so the other might be attainted here by Outlawry who knew not of it and note that Bramston Chief Justice said That the Clerk of the Assises might bring in the Indictment propriis manibus if he would without a Certiorare 190. A man was outlawed for Murder and died his Administrator brought a Writ of Error to reverse the Outlawry and it was prayed that he might appear by Atturney and by Bramston Chief Justice and Justice Mallet none other being then in Court it was granted that he might for they said that the reason wherefore the party himself was bound to appear in proper person is that he may stand rectus in Curia and that he may answer to the matter in fact which reason fails in this case and therefore the Administrator may Appear by Attorney 191. One said of Mr. Hawes these words viz. My Cozen Hawes hath spoken against the Book of Common Prayer and said it is not fit to be read in the Church upon which Hawes brought an Action upon the case and shewed how that he was cited into the Ecclesiastical Court by the Defendant and had paid several sums c. The Defendant denied the speaking of these words upon which they were at issue and it was found for the Plaintiff and now it was moved by Keeling for stay of Judgment That the words are not Actionable as to say A man hath spoken against a penal Law which doth not inflict punishment of life and member will not bear Action and the punishment which is inflicted by the Statute of 1 Eliz. cap. 2. is pecuniary only and not corporal but in default of payment of the sum that he shall be imprisoned for such a time which meerly depends upon the non-payment and is incertain And by the same reason he said to say of a man that he hath not Bowe and Arrows in his house or not a Gun or to say of a man That he hath spoken against any penal Law whatsoever would bear Action which should be unreasonable wherefore he prayed that Judgment might be stayed Brown contrary the words are actionable because that if it was true that he spoke them he subjected himself to imprisonment by the Statute of 1 Eliz. although not directly yet in default of payment so as there might be corporal damage and to prove it he cited Anne Davies Case 4 Rep. 17. a. where it is said that to say that a woman hath a Bastard will bear Action because that if it were true she was punishable by the Statute of 18 Eliz. Further he said that if the words are not Actionable yet the Action will lie for the special damage which the Plaintiff hath suffered in the Ecclesiastical Court Justice Mallet the words of themselves are not Actionable because that the corporal punishment given by the Statute doth depend upon the non-payment and is not absolute of it self but the Action will lie for the temporal damage and therefore he conceived that the Plaintiff ought to have Judgment Justice Heath that the Plaintiff ought to have Judgment for the pecuniary Mulct is a good cause of Action there being in default of payment a corporal punishment given But here is not only injuria but damnum also which are the foundations of the Action upon the Case and if the words of themselves be not Actionable yet the Action will lie for the damage that the Plaintiff here suffered by the citation in the spiritual Court Bramston Chief Justice doubted it and he conceived it hard that the words should bear Action because as he said the corporal punishment doth meerly depend upon the not payment and upon the same reason words upon every penal Law should bear Action and therefore this being a leading Case he took time to consider of it It was said To say of a man that he had received a Romish Priest was adjudged Actionable and that was agreed because it is Felony At another day the Case was moved again and Justice Mallet was of the same Opinion as before viz. That the words themselves were not actionable but for the special damage that the Action would lie and he said that one said of another That he was a Recusant for which an Action was brought in the Common Pleas and he conceived the Action would not lie Justice Heath was of the same Opinion as before that the words oâ— themselves would bear Actioâ— and
by that to discharge themselves which the Defendant here should lose if the Obligation should stand in force as to him only 8 Rep. 136. Sir Iohn Needhams case If a woman Obligee taketh one of the Obligors to be her Husband the same is a discharge to the other Two commit a trespass the discharge of one is the discharge of both yet it is there joynt or several at the will of the party who releaseth But it may be objected that it is a Casual act here and therefore shall not be so prejudicial to the Plaintiff here To that he answered That that shall not help him because it is his own lachess and default and the same Objection might have been made in Piggots case where the Obligation is altered in a material place by a stranger without the privity of the Obligee and yet there it was resolved that the same shall avoid the deed Besides if the Obligee had delivered the same over to another to keep and it had been eaten with Rats and Mice yet that would not excuse him and by the same reason shall not help the Plaintiff here Matthewsons Case C. 5 Rep. differs much from this case because there the Covenants are several and not joynt as in this Case and therefore if the Covenanâ—ee doth release to one of the covenanters that shall not discharge the others For the Cases of 14 H. 8. and Piggots Case they differ much from our Case for there the covenants or conditions against the Law are void ab initio by the construction of the Law and no alteration as in our case by the Act or default of the party by matter ex post facto and therefore those Covenants or Conditions against the Law cannot vitiaâ—e those which were good and according to Law because they took not any effect at all So if a Monk and another be bound the Bond is void as to the Monk and good as to the other because there is no subsequent alteration by the party but the same is void by construction of law ab initio and upon the same reason stands the Case of the Fine put of the other side For which causes he prayed Judgment for the Defendant Note the Court viz. Foster Reeve Crawley and Bankes Chief Justice did strongly incline that Judgment ought to be given for the Defendant and their reason was That if the Obligee by his Act or own lachess discharge one of the Obligors where they are joyntly and severally bound that the same discharges them all but gave day for the further debating of the Case for that this was the first time it was argued 207. By Justice Foster and Bankes Chief Justice a Trust is not within the Statute of 21 Iac. cap. 16. of Limitations and therefore no lapse of time shall take away remedy in Equity for it but for other Actions which are within the Statute and the time elapsed by the Statute there is no remedy in Equity and that they said was always the difference taken by my Lord Keeper Coventry but Justice Crawley said that he had conferred with the Lord Keeper and that he told him that remedy in Equity was not taken away in other Actions within this Statute 208. It was said by the whole Court that they never grant an Attachment without an Affidavit in writing 209. The Case before of the warrant of Attorney was betwixt Firburne and Cruse and was entred Trinit 17 Car. And now it was resolved upon reading of Presidents in Court that no warrant of Attorney shall be made or filed because that it is an error and not helped being after judgment in Nihil dicit that none of the presidents came to our case The greatest part of presidents were these viz. the first was 1 Car. Taylor against Thellwell the same appeared to be upon demurrer and no Judgment given Another was Mich. 3 Car. Peasgrove against Brooke and in that Case it did not appear that any Writ of Error was brought Another was Paseh 5. Car. Tayler against Sands Another Hill 6. Car. Smith against Bland in that it was conceived to be amendment only and it was agreed for Law that where there was a warrant of Attorney it might be amended for any defect in it as where there is a misprision of the name or the like as it is resolved Br. amendment 85. and so is 1 and 2 Phil. and Mar. Dyer 105. pl. 6. expresly where Alicia for Elizabetha in the warrant of Attorney was amended and that after a Writ of Error brought by construction of the Statute of 8 H. 6. and so is 9 E. 4. Br. amendment 47. And Justice Reeve said it cannot appear to us by any of the said Presidents whether there was a warrant of Attorney or not and perhaps upon examination it might appear to the Judges that there was a warrant of Attorny which is helped by the Statute of 8 H. 6. and that might be the reason which caused them to order that it should be filed but that doth not appear to us and therefore the presidents were not to the purpose Besides it doth not appear by any of them whether judgment were given or not and before judgment it may be amended as the Book is 9 E. 4. 14. br amendment 47. Besides in one of them the Plaintiff did neglect to remove the Record which is the very case in Dyer and that was the reason that the warrant of Attorney was filed but in this Case there appearing to be no warrant of Attorney it is not helped by the Statute of 8 H. 6. and after a Judgment and that upon Nihil dicit which is not holpen by the Statute of 18 Eliz and there is no Lachess in removing of the Record by the Plaintiff and for these reasons the whole Court was against the Defendant in the Writ of Error that it was Error and therefore ought not to be amended Note that in this Case it was moved that the warrant of Attorney might be filed in this Court after Error brought in the Kings Bench but observe that if it had been a thing amendable that had been no impediment to it for things amendable before Error brought are amendable after and if the inferior Court do not amend them the superior may and so it is adjudged 8 Rep. 162. in Blackmâ—res case and so is the Case express in the point 1 and 2 Phil. and Mar. Dyer 105. pl. 16. Where a warrant of Attorney was amended in Banco after Error brought and the Record certified This is only my own observation upon the Cale Mich. 17º Car. in the Kings Bench. 210. AN information was brought for the King against Edgerley Carrier of Oxford because that where by the custom of England no Carrier or other person ought to carry above two thousand weight and that with a Waggon having but two wheels and but four horses that the Defendant had used for the space of a year last past to drive Quoddam gâ—statorium
help it 12. pl 32. A man brought Trespass for fishing in seperali â—â—sâ—eria sua and declares that the Defendant â—â—â—es ipsius câ—pit and good for that he had a qualified property in them ratione privilegii 48 pl. 77. If a Ship be taken by Letters of Mart and is not brought infra prâ—â—siâ—ia of the King who granted them the property is not altered 110 pl. 118. Quilibet potest renunciare juri pro se introducto AN Orphan may waive the Court of Orphans and sue in Equity for it is a priviledge which the Orphan hath quilibet potest renunciare c. 107. pl. 185. Recital WHere a false Recital shall not avoid a grant 31. pl 66. Grants of the King need not to recite Leases not of Record nor Copyholds 206. pl. 246. Recognizance It is no good plea to say that such a one was bound in a Recognizance and to conclude that it was secundum â—ormam statuti but he ought to say per scriptum obligatorium 76. pl. 117. Records An Order of the Sessions of peace is a Record and therefore the plea of nul tiel Record of Sessions of peace is a good plea. 121. pl. 200. Relation If a man be living at the day of Nisi prius and dies before the day in Bank the writ shall not abate so if a man be living the first day of Parliament and dies before the last yet he may be attainted for that they are but one day by relation 65. pl. 101. Releases Release to a bargainee before inrolment is not good 70. If divers recover costs joyntly in the Ecclesiastical Court and after one of them releases this is no bar to the others in a 〈◊〉 there for their costs so where a baron and feme recover costs there in the right of the wise and the baron releases this shall not bar the wife 73. pl. 112. See Title Prohibition Two men are bound joyntly and severally to a third who sues the bond against both and after appearance enters a Retraxit against one whether this shall amount to a Release so that it shall discharge the other or not quaere 95. pl. 165. Remainder and Reversion The King may grant an office in reversion but not a common person nor a Bishop without Custom 42 43. Remover of Records A. and B. were indicted for a murder B. flies A. brings a Certiorari to remove the Indictment into the Kings Bench whether all the Record be removed or but part quaere 112. pl. 190. Writ of Errour bearing Teste before the plaint entered is naught and the Record is not removed by it otherwise where is bears Teste before Judgement 140. pl. 212. Reparations The inhabitants of a Parish are bound by the Common Law to repair the high-wayes within the Parish except prescription binde any particular persons to it 26. pl. 62. A man is compellable in the Ecclesiastical Court to repair a way which leads to the Church but not a highway 45 pl. 70. Repleader Where there is an insufficient bar and a good Replication after a Verdict there shall be a Repleader contrary where no Verdict 78. 125. Replevin Replevin lies of a Ship 110 pl. 188. Requests A. is bound to B. to deliver to him two hundred weight of Hops and B. to chuse them out of 24 bags c. whether B. is bound to request A. to shew the bags for him to make his election or not quaere 74. pl. 113. Rescous For a Rescous upon mean process no Action lies against the Sheriff otherwise in case of Execution 1. pl 1 Restitution Clerk of a Parish is put out by the Parson without cause no writ of Restitution lies 101. pl. 174. Barrister of one of the Temples was expelled the house whereupon he prayed his writ of Restitution and denied because that there is no body in the Inns of Court to direct unto they being no body corporate 177. pl. 235. Retorn of a Sheriff Sheriff in retorn of a Rescous saith that he was in custodia ballivi itinerantâ—s and that Rescous was made to him the retorn is naught because the Law takes no notice of the Baylie itinerant 92. pl. 153. Revocation The King presents and before institution presents another whether this be a Revocation of the former presentation or not quaere 86. Scire Facias UPon a Judgement in the Kings Bench there ought to be two Scire Faciases one against the principal the other against the Bayle but one only suffices in the Common Pleas and two Nihils retorned amount to a Scire feci 3. pl. 4. A man acknowledgeth a Statute and after grants a Rent the Statute is satisfied the grantee of the Rent may distrain without suingâ—a Scire Facias 124. pl 203. 159. pl 230. 207. pl. 247. Sequestration No Sequestration ought to be granted by a Court of Equity until all the process of contempt are run out the sequestring of things collateral is illegal 81. pl. 130. For sequestring of collateral things a prohibition was granted to the Court of Requests 99. pl. 151. Sewers Divers Exceptions taken to the proceedings of the Commissioners of Sewers upon Certificates of them 123. pl. 202. 191. pl. 241. Resolved upon question and debate that a Certiorari doth lie to remove the proceedings of the Commissioners of Sewers 192. pl. 241 Supersedeas Writ of Errour brought here to reverse a Judgment given in Ireland is a Supersedeas to the Execution 10. pl. 27. A Writ of Error is no Supersedeas of it self without notice 54. pl. 81. Writ of Error is a Supersedeas to the Writ of Enquiry of Damages 88. pl. 142. Tenant at will WHether a bargainee before inrolment or entry shall be a Tenant at will or not quaere 62. pl. 97. 69. 108. Tender The defendant upon an award was to pay to the plaintiff 8 l. or 3 l. costs of suit expended in an action of Trespass betwixt the plaintiff and defendant as should appear by a note under the Attornies hand of the plaintiff c. the plaintiff is not tyed to cause his Attorney to tender the note to the defendant but the defendant ought to seek the Attorney and request it of him 108. pl. 186. 156. pl. 225. Traverse A man pleaded the descent of a Copyhold in see the Defendant to take away the descent pleads that the ancestor surrendred to the use of another absque hoc that the Copyholder died seised the Traverse is naught 21. pl. 48. A man was bound to pay money at such a place in debt brought against him he pleaded that he payed the money at the place this is not traversable 77. pl. 122. Trespass An action of trespass lies upon the Statute of 2 E. 6. against any man that takes the Tythes 21. pl. 49. Trespass for fishing in sâ—perali piscaria of the Plaintiff 48. pl. 77. Trover conversion Trover and conversion lies of a Ship 110. pl 188. Tythes A Vicar cannot have Tythes but by dotation