Kingsmil agreed to this In evidence to the Iury in a replevin brought by I. S. against one Bennet for the taking of beasts and the Defendant made Conusance and he said that Mr. Potts was seised of 6. acres of land and granted a rent charge out of that to one William Pots his son in taile and for rent behinde he avowed and the issue was that the rent did not pass by the grant and Hobert said that in this case the avowant ought to prove that the grantor was seised of 6. acres or more and not of 4. or 5. acres if he will maintain his issue in this case Action upon the case for words he innuendo the Plantiff stole the Tobacco out of his Mrs. shop Finch moved the declaration was not good because he had not averred that there was a communication concerning him before and where the person is incertaine there the innuendo is void Hobert and Winch held that to be good but then Hobert moved that the declaration was not good because he said the Tobacco in his Mrs. shop and had not averred that there was Tobacco there to which also Winch agreed but if he had said that he had stolen Tobacco out of his Mrs. shop such declaration without any averment is good but here the words the had altered the sense and so there ought to be an averment and Winch said that if he had said that he had stole 2 or 3 pound of Tobacco out of his Mrs. house this had been good without any averment for the certainty appears and it was adjourned Trin. 19. Jac. Sir George Stripping in Wast SIir George Stripping brought an action of waste and an estrepment was awarded to the Sheriff of Kent to prohibit him to make waste and the Sheriff returned the writ executed accordingly and now there was an affidavit made to the Court that since the estrepment he had cut down certaine Willowes which grew upon the bank of the River by which a bank fell down and a meadow adjoyning was overflowed and upon this affidavit Davies moved for an attachment against the Defendant for it appears by this affidavit that waste is committed for the cutting of willowes in this case is waste because that they support the bank as if they grew neer a house Hobert and Winch being only present that this is a waste in law but yet no attachment shall be awarded because that this appears only by affidavit and is only the collection of the party and this doth not appear by pleading or by the recorâ— of the Sheriff and Brownlow said that in this case he ought to have a Pond which was granted Maior against two Bayliffs ACtion of false imprisonment was brought by Major against 2 Bayliffs of a corporation who pleaded not guilty and at the nisi prius the Plantiffe was nonsuite and now Serjeant Richardson moved upon the Statute of cap. 5. 7. Iac. for double costs and that upon the very words of the Statute and the question was whether the costs ought to be taxed by this Court or by the Iustices of Assize Hobert said that upon the nonsuite the Iustices of Assize might have commanded the Iury to have taxed the single costs and then the same judge might have doubled them and that within the words of the Stat. but if the judge grants this then upon his certificate the double costs shall be assessed for otherwise the party shall be without any remedy and Brownlow ch Prothonotary agreed with that as to the certificate that this Court shall assesse the Costs and Brownlow had a president according Mich. 19. Jac. Grice against Lee. GRice against Lee in an action upon the case and the Plantiff declared that he being long time before and still is seised in fâ—e of certain messages and lands in Layton Buzard in the County of Bedford and that to these messuages he had a common appendant time beyond memory c. in 600 acres of waste called Layton Heath and had common in 600 acres of wood in Layton aforesaid and that the Defendant had made certaine conney borroughs and which the aforesaid couneys where he had not made any mention of any conneys before eat up the grass and that the Defendant had inclosed the said wood by which the Plantiff had lost the profits and the Defendant as to the digging of the heath for coneys said that E. 3. granted to the Dean and Cannons of Windsor that they and their successors haberent in omnibus terris dominicalibus liberam Warrennam sibi tunc et successor et in posterum conferendam And that the 20. E. 4. the Duke of Suffolk and his wife granted to them the said Mannor of Layton whereof the said Heath is parcel and said that 22. E. 4. it was enacted by Parliament that all charters made by King E. 3. to the Deane and Canons of Windsor shall be good and that the said Deane and Cannons of Windsor being so seised of the Mannor of Layton and of the Heath in the 3. H. 7. erected a free warren and that by mean conveyance the said D. and C. conveyed that to the Defendant and so justified the making of the said coney borroughs by vertue of the charter of E. 3. and as to the 600. acres of wood he justified by the licence of the father of the Plantiff who then was seised of the common and upon these pleas in barre the Plantiff demurred and Serjeant Richardson took exception because that it is not expressy alleadged that hee was seised of the house and land to which the common is appendant at the time of the making of the conney borroughs for he only said that a long time before the erection of the conney borroughs and yet he is seised which immplies that he was seised before and after but not at the time of the warren made and for this he cited the Book of entries where waste was brought and he counted of a lease for life to the Defendant and a grant of the revertion and an attornment of the Tenant and that the Defendant had made waste and ruled to be evil because he had not alleadged that this was after the attornement and so in Stradlings and Morgans case and he cited a judgement 5. Iac in C. B. Adkinson brought an action of trespass against I. S. and declared quod per multos Annos jam preteritos he had exercised marchandize and that the Defendant such a day said of him that he was a Bankrupt and it was adjudged that the declaration was evil because he had not alleadged that he exercised marchandize at the time of the speaking of the words and he said that the cause of the judgement was entered upon the roll and the same case he could shew to the Court and Hobert desired to sâ—e that for he doubted much of the law of the same case to which Winch and Hutton agreed and Richardson said that as to that which may be said that a fee
had said that he took money for ingrossing of Feodaries which is desceit without question that had been actionable but there may not be Couzning without desceit And he cited Boxes case where one said of an Attorney that he was a maintainer of suits and a Champerter action lies for it shall be taken to be a scandal to him in his profession for though an Attorney may maintain suites yet he ought not to be a Champerter and he further said that he who will maintain an action for words ought to be scandalized in his publick profession and he cited a case which was in the Kings Bench Brad against Hay and the Plantiff declared that he was Bailiff to such a one and that he had the buying and the selling of his Corn and that the Defendant said of him that he sold by false measures and adjudged that no action lies for it is not a scandal to him in his publick profession and so 36. Eliz. one said of a Merchant that he kept a false debt book and because he may be a Merchant without a debt book it was ruled that an action doth not lie but if he had said of him that he deceived men by buying and selling these words had been actionable and he said that two things are required to every publick profession science and fidelity and when a man who hath a publick profession is scandalized in either of those an action of the case lies and cited Palmers case of Lincolns Inne he being a Lawyer 't was said to him by one that he had as much Law as a Iackan-apes and adjudged to be actionable for it is a scandal to him in his profession and so Sir Miles Fleetwoods case where he who is Plantiff in this action was Defendant in that he being receiver of the Court of Wards one said to him Mr. deceiver hath Couzned the King and hath dealt falsly with him and adjudged that an action upon the case lies and yet he did not shew wherein he had Couzned him or dealt deceitfully with him but yet because it appears to the Court that he might deal deceitfully and Couzen the King therefore actionable and he cited Birchleys case you have dealt corruptly an action lies and yet he did not shew wherein he had dealt corruptly and here he had said he was a Couzner by the receipt of money which is an express scandal to him in his office Winch accordingly to every office of trust is a condition in Law annexed that he deal honestly and justly and he cited Wingates case in the Kings Bench one said to another is Wingate your Attorney and the other said that he was and the other replied take heed and follow him well for else he will make you throw your purse over your bosome and it was adjudged that an action lies for it is a scandal to him in his profession and it shall be taken as much as if he had said he will make you spend all the money in your purse if you look not the better to him and so applied this to the principal case and in this case judgement was commanded to be entered for the Plantiff in the action if no other cause be shewed before such a day An action upon the case was brought for these words the Plantiff did load a ship of my Fathers with Barley and did steal and Couzned 7. quarters thereof in measure and upon not guilty pleaded it was found for the Plantiff and now it was moved in arrest of judgement that the word Cozned being joyned with the word stole had taken away the force of that and made it but Cozning but Hutton contrary and that it shall be understood that he stole 7. quarters in measure and quantity and Winch seemed to agree and it was adjourned and an other day awarded that an action lies Godfrey Wade Alias Mack-Williams case GOdfrey Wade and others in an ejectione firme and the case upon a special verdict was to this effect Henry Mack-Williams the father was seised of land and being so seised he conveyed that to the use of himself for life the remainder to his wife for life the remainder to the heires of their two bodies engendred the remainder to the heires of the bodie of Mack-Williams the Feoffor and the remainder to his right heirs in fee and he had a son by his wife named Henry and 5. daughters and he died and afterwards the son in the life of his Mother by deed indented leased to White-Head for 31. years rendring rent and afterwards he leavies a fine to the use of himself and his heirs in fee and died and after whose death the Mother suffered a recovery within six moneths in which 4. of their husbands were vouched and the recovery was to the use of the feme for life the remainder to every one of the daughters in fee and the sole doubt was whether the lease made by Henry the son is defeated by this recovery and it was argued by Harvey Serjeant that the lease shall stand good notwithstanding this recovery suffered by the Mother for he said that Henry Mark-Williams being issue in tail and also being heire to the remainder in fee who made this lease by indenture in this case this lease issues as well out of the estate taile as out of the reversion in fee and the fine leavied in the life of his Mother binds and bars the estate taile at the time of the fine and then the lease being drawn out of the reversion in fee which discended to the daughters after the death of their brother this reversion shall be charged with the lease and the recovery had not destroyed that and this case will differ from Capels case for it is agreed if tenant in tail bee the remainder in fee and he in remainder in fee granted a rent charge and after Tenant in tail suffer a recovery by this the rent is destroyed for there he who suffered the recovery was Tenant in tail in possession but in our case when the son had leavied a fine in the life of his Mother by this fine the tail is destroyed and the Mother is become Tenant in tail after possibility of issue extinct which is only an estate for life in quantity and then though she suffers a recovery yet this doth not destroy the lease made by Tenant in tail when there was also a fine leavied to confirm that Secondly he argued that when the issue in tail in the life of his Mother made a lease for yeares by indenture and then leavied a fine and died and then the Mother being Tenant in tail and joyntress within the Statute of 11. H. 7. as in our case she is and she suffers a recovery and vouches the daughters in reversion and lessee for years enters after the death of the feme by force of 11. H. 7. for lessee for years is a person who may enter within the express words of that Statute which gives entrie to any person
reason the factor may sell the goods without ready money and this is good reason for perchance the goods are of that nature that they will not keep without perishing by which clearly it appears that if I deliver goods to another to Merchandise and to sell he may sell them without ready money but if my factor or Bailiff will sell them to one which he knows wâ—ll prove a Bankrupt without ready money this is not good but secondly he held the custome as it is here alledged not to be good for then the partie shall have no remedy for his money except the factor will go into Spain and sue the Bill and the laws of Merchants are special laws for their benefit and not for their prejudice and this custome as it is alledged is too large but if he had alledged that such Bill taken by the factor shall be as good and effectual to the Mr. as if it had been taken in his own name this had been good besides the custome is not good for it is alledged to be that when the factor had delivered the Bill to the owner of the goods this shall be a discharge to him who was the factor and here is no time set within which this may be delivered and so for ought is shewed it may be delivered 10. years after which may be good and to that which had been said that the laws of Merchants are national laws he denied that for every Kingdome had its proper and peculiar laws and though this is the law of Spain and national to them yet this ought to be reasonable or else it shall not binde and judgement was commanded to be entered for the Plantiff Hobert and Winch being only present It was ruled that he who had land in a parish who did not inhabit there shall be chargable to the reparation of the Church but not to the buying of ornaments of the Church for that shall be levied of the goods of the parishioners and not of their lands by Sir Henry Yelverton and said to be so formerly adjudged In trespas the Defendant pleads that one such was possessed of a term for years and bring so possessed by his last will and Testament devised that to the Defendant and died after whose death the Defendant entered and was possessed by vertue of the devisee upon which plea the Plantiff demurred generally and Hutton thought this plea prima facie to be good though the Defendant had not expresly alledged that the devisee died possessed but his plea implies that for he had said that he entered by vertue of the devisee and was possessed and this only matter of form and not matter of substance and no cause of general demurrer which Winch also granted that this was also matter of form and not matter of substance Gage against Johnson for his fees GAge brought an action against Iohnson as his servant and Solicitor to the Defendant in a suit in the Kings Bench taking for every Term 3. s. 4 d. for his fees and for this he brought his action of debt and Serjeant Hitcham moved in arrest of judgement and he urged the case of Samuel Leech an Attourney of this Court in an action upon the case brought by him upon a promise to pay so much for the solliciting of a cause of the Defendant and the opinion was that the action will not lie for it is in nature of maintenance for a Solicitor may not lay out money for his Clyent and if an action upon the case will not lie then much less an action of debt and Hobert said that a Councellor may take fees of his Clyent but he may not lay out or expend money for him and the same law of an Attourney for if he did disburse money for him he doubted much what remedy he should have and he further said a servant may follow business for his Mr. and may take money for his labour for if I retain my servant generally he is not bound to follow my suits at law except at his pleasure for that is an extraordinary service and for that if I will say to my servant that if he will follow my business at Westminster I will give him so much for his pains my servant in this case is not without his remedy but if his service is coupled with Soliciting to take money for his pains his opinion was that no action will lie to which the other justices also agreed and they arose Wright against Black before NOw the case of Wright and of Black was moved again and the case was that Wright had brought an action upon the case against Black and Black for that the Defendants intending to make away his good name and to cause him to lose his goods did maliciously and without cause at Norwich in the County of Norfolk prefer a Bill of indictment at the Sessions of peace containing that the Plantiff stole two bundles of fetches and also did cause and entice one I. S. to give in evidence that the indictment was good and true by reason of which he was bound to Answer that at the next Assiles and there he was accquitted and whether the action was maintainable was the question and Attoe argued that the action is maintainable though it is not shewed that the Bill of indictment was found and he vouched a case which was Hill 10. Iac. B. R. Rot. 921. between Whorewood and Cordery and his wife Defendants which case and judgement was after affirmed in the Exchequer Chamber upon a writ of error and the case was that the Plantiff declared that the Defendants intending to take away his good name did charge him to have ravished Dorothie Coxe and maliciously exhibited a Bill of indictment containing that the Plantiff did felloniously ravish the said Dorothie their daughter and did give this in evidence to the Grand jury who found Ignoramus and yet it was adjudged that an action lies and he cited a case the 19. Iac. in B. R. Deney against Ridgy where was only an indictment preferred concerning the stealing of a horse and no more and yet an action lies Hobert chief Iustice said that if seemed to him that it is actionable for this is as great a scandal to give this in evidence to the Grand jury as to publish this upon an Alebench and as the course of Iustice ought not to be stopped so neither ought the good name of man in things which concern his life be taken away without good cause and I have heard that judgement was given another Term for the Plantiff but quere better of that Hoes case HOes seised of land in fee he devised that to his wife for life the remainder of one parcel of that to Thomas his eldest son the remainder of the other parcel to his youngest son in fee and this devised was with proviso that the feme shall pay his legacies and also his will was that in case his wife died before the payment of his debts and legacies
and at that day the Court was of opinion that judgement shall be given for the Plantiff for by the rejoynder the Defendant had shewed that he had forfeited the bond though that be another matter then is in the replication and so he shall have judgement super totam materiam according to the judgement in Francis Case Coo. 8. for their the declaration stood good though the Plantiff had not cause of action in the same manner yet because it appeared he had cause of action he shall have judgement Weaver against Best VVEaver against Best in debt for 48. s. in the debet and detinet and for 2. shirts in the detinet only and he declared that the Defendant such a year retained the Plantiff to be his servant in husbandry giving him 48. s. and a shirt by the year and he shewed that he retained him for the next year and he averred that he served him and they were at issue upon nihil debet and the Plantiff had a verdict for him and it was now moved in arrest of judgement by Serjeant Brigman because he had not shewed that his retainer was according to the Statute of the 5th of Eliz. which Statute limitteth the form of there retainer and their wages and other things and he had not shewed the place where service was and also he had joyned two debts in one action one in the debet and detinet the other in the detinet only and Winch Iustice said that the Statute of the 5. Eliz. extends to such as are retained in husbandry and therefore other retainers are left as they were before the Statute at the Common law and this shall be intended to be a retainer according to the Statute if the contrary be not shewed by the other partie for his retainer was for a year and therefore it shall be intended that the wages was appointed by the Iustices and it was also said by the Court that if the justices of the peace in this kinde do neglect to set down the wages yet a servant may bring an Action upon his own contract also it was said that he needs not to shew the place where he served for if he did no service yet if he did not depart it is very good and for the other matter it was clear that he may bring his Action so by several precipes in one writ Thornes case IT was agreed clearly between Thorn and C. that where an obligation is made and the obligor and the obligee conferred about it and the obligor said to the obligee that he had forged this this is actionable for here it refers to a certainty but if he had said to the other thus he was a forger and had forged falsâ— writings no action will lie for the words are to general in that case also it was agreed clearly by the Court the Sheriff may not arrest a man upon a Capias after the time of the return of the writ Grasier against Wheeler Grasier as Executor brought an action of Covenant against Wheeler upon a lease made by the Testator rendring rent and this was made by I. S. and the Defendant covenanted that the lessee should pay the rent and the Plantiff assigned the breach in non-payment of 30. l. to the Testator such a day when it was due and for 10. l. due in his own time and the attorney of the Defendants as to the 10. l. pleaded non sum informatus and as to the other he pleaded that the Defendant paid to the Testator 7. l. in money and a horse in full satisfaction of all the said 30. l and that the Testator accepted that in full satisfaction and the Plantiff said that this was paid to the Testator for another debt absque hoc that he received that in satisfaction of the 30. l. and now Devenport argued that the issue was misjoyned for the issue ought to have been taken upon the payment and not upon the acceptance and he cited Pinnels case Coo. 5. where the payment in full satisfaction ought to be pleaded precisely and he said that he agreed to the case of Nichols Coo. 5. where the issue was joyned upon payment upon a single Bill and found that this was not paid and the Plantiff had judgement but if the issue had been found for the Defendant that had not been aided by the Statute for though it had been paid yet that was no bar Bridgman contrary and he said the difference is where the issue is joyned upon a matter alledged by the adverse partie and they are at issue upon a point which is not material that is aided by the Statute of the 18. Eliz. and where no issue at all is joyned there is not any help Winch Iustice said that this is an issue which will make an end of the matter And at another day this Tearm Serjeant Harvey moved the case again in arrest of judgement because the issue is joyned upon the acceptance which is not material and he cited Fowkes case depending in this Court debt upon an obligation and the Defendant pleaded the acceptance of another obligation in satisfaction which in verity is no bar and issue was taken upon that and it was doubted whether this being insufficient be aided by the Statute or not Bridgman Serjeant said to the contrary and he said as before that because the issue is taken upon the allegation of the Defendant if it is not good yet it is aided by the Statute of 32. H. 8. and Hutton said this is a full issue and as to the traverse said it is a material issue for he pleaded that he accepted them for another thing absque hoc that he accepted them in satisfaction of the 30. l. which is the most proper issue for he said it is clear that he may say that he accepted them for part c. and good and so here The Countess of Barkshire and Sir Peter Vanlore in Dower IT was agreed clearly in Dower between the Countess of Barkshire and Sir Peter Vanlore that if the Tenant plead never seised to have Dower and in verity the husband of the demandant had an estate but that was by disseisin which is avouched by the entrie of the deseissee who had a title paramont this is no title by which she may have Dower though they are at issue upon this plea and also it was agreed that if a man had a good estate by bargain and sale from him who had right to alien that and yet after he accepts a fine upon conusance of right as that c. from the other partie though in this case this be a conclusion to the parties between whom the fine was to denie that the land was of the gift of the Conusor and so that he was seised yet it is not any conclusion to the jurors to finde the verity of the matter in fact and that he had nothing of the gift of the Conusor also it was agreed in that case if a man held lands
covenanted with Sir Edward Sackvil to levy a fine to him of that land before the fine acknowledged the eldest brother dyed and the question was whether the youngest shall be compelled to levy the fine and presidents were commanded to be searched concerning that matter Note that it was said that where a commission issued out of the Court of wards to 4 persons or to any 2 of them and one of them refuse to be a Commissioner and the other 3 sit as Commissioners and he who refused was sworn and examined by them as a witness and ruled that this is good for though he refused to be a Commissioner yet he is not excluded to be sworn as a witness In evidence to the Iury the case was that Tenant in taile bargained and sold his land to I. S. and his heires and I. S. sold to the heire of the Tenant in taile being of full age and Tenant in taile died and the heire in taile claimed to hold his estate and the doubt was whether he was remitted or no Hobert was of opinion that after the death of the Tenant in taile that the heire is remitted for if Tenant in taile bargain and sell his land the issue in taile may enter and where his entrie is lawful there if he happâ— the possession he shall be remitted Hutton and Warberton Iustices contrary For at the first by the bargain and sale the son had fee and then the estate of the son may not be changed by the death of the father he being of full age when he took this estate and this was in an Ejectione firme of land which concerns Sir Henry Compton and the Lord Morley and Mounteagle White against Williams VVHite brought an action of accompt against Williams as his Bayliff to his damages 100. l. the Defendant pleaded he never was his Bayliff and it was found against him and the Iudgement was given that he should render an accompt and at the day the Defendant made default Ideo consideratum est per Curiam quod Querens recuperet versus predict Defendent 42. l. 10. s. and upon that the Defendant brought a writ of error and assigned for error that the Court gave Iudgement of the value without inquiring of the value and it was holden by Gaudy and Fenner only present that the Iudgement ought to be given which the Plantiff had counted of Baron Altham contrarie for the Court may in discretion give a lesser summe Hill 43. Eliz. B. R. vide 14. E 3. Accompt 109. 20. E. 3. 17. Sir George Topping against King VVA st was assigned in the cutting of Elmes and other Trees to such a price and Iudgement was given for the Plantiff by nihil dicit and a writ of inquiry of dammages issued upon that and the Iury found to the dammages of 8. s. and upon this Davies the Kings Serjeant moved to have a new writ of inquiry and that the old writ shall not be returned for the dammages are too litle Winch said all is confessed by the nihil dicit Hobert The Iury here have found the value and presidents were commanded to be searched and Hobert said that if an information is for ingrossing of 1000 quarters of corn and Iudgement is given by nihil dicit and a writ of enquiry issues which findes him guilty of 100. yet this is good And not that at another day the case was moved again it was between Sir George Topping and King and it was said if a man recover in waste by nihil dicit and a writ of inquiry issues the Iury in this case may inquire of the dammages but not of the place wasted for this is confessed and so are the presidents according and Hobert said if the Defendant is bound by the nihil dicit as to the place wasted for what cause shall not he be bound as to the dammages and by all the Court if the jury finde dammages only to 8. s. the Plantiff shall not have Iudgement for it ought to be above 40. s. Hob. this is in the discretion of the Court in this case and it was also said in this case that upon the grant of all the trees and after the grantee cut them and new ones grow upon the slumps which in time will be trees that in this case the grantee shall have them also by Hobert Wetherly against Wells in an action for words VVEtherly against Wells in an action upon the case for these words thou hast stollen hay from Mr. Bells racks and upon not guilty pleaded it was found for the Plantiff and now it was moved in arrest of Iudgement because he had not shewed what quantity was of that and perchance it may be of so little a value that it is not fellony and the rather because it is hay from the Racks but Hobert contrary that Iudgement shall be given against the Defendant for the Plantiff for it hath been adjudged lately in this Court that where a man was charged with petty Larceny to steal under the value of 12. d. that an action of the case will lie for the discredit is not in the value but the taking of that with a fellonious intent and yet it had been adjudged in this Court that where one said of another thou art a thief and hast stolen my trees that in this case an action will not lie but this is by reason of the subsequent words trees for it is said Arbor dum crescit lignum dum crescere nescit And Winch said that it had been adjudged actionable to say thou art a thief and hast stolen my corn and yet perchance not exceed 2. or 3. grains and Warberton said that it had been adjudged in the Kings Bench that where one said thou art a thief and stollest the corn out of my field that no action will lie The Earl of Northumberland and the Earl of Devon NOte that in the case of the Earle of Northumberland and the Earle of Devon execution issued out for dammages recovered against the Bayliff of the Earle of Northumberland by the name of I. S. of D. and there was I. S. the father and I. S. the son and the father being dead the son issued his writ of Idemptitate nominis and he prayed to have a supersedeas and Warberton demanded of Brownlow if he had any such president to award a supersedeas in such case who answered no and Warberton and Hutton being only present said that they will advise of that Sir George Sparke Prescription IN a Replevin for the taking of a horse in 5. acres of land in such a place and the Defendant avowed as Bayliff to Sir George Spark and shewed that Sir George Spark and all those whose estate he had in the land had used time beyond the memory of man to have herbage and pasturage in all the 5. acres when that was not sowen and upon this plea the Plantiff demurred Ashley argued for the Plantiff that the prescription is void and this is not
a legal signification it shall not be taken but in the better sense for the small pox but Warberton said that if one say of another that he is laid of the pox an action lyes for it is intended the french pox and Winch said that those actions of slander were known to law but of late times and for that 26. H. 8. it was thought that an action would not lye for calling another thief and in the principal case judgement was commanded to be entered quod Querens capiat nihil per brevem suum and note that I saw Hobert shew presidents to Winch in a paper which were delivered to him by the Plantiff and drawn by his Councel and he said to Winch that by those it seemed that in the Kings Bench they made a difference between for and and as had been said before and he marvailed much at that In a Capias Ulagatum before judgement the Sherif returned that I. S. and I. N. rescoused the party c. and Attoe moved that the retorn was not good for there ought to be additions by which they may be sued to the outlawry but Hobert and the Court hold this to be good without addition for no statute nor book will compel the Sheriff to give additions in this case And it was said that if the Sheriff in this case retorn that the party himself simul cum I. S. and I. N. made the rescouse that this is not good but in the principal case it was ruled that the return was good and the rescousers which were present were committed to the fleet Homan and Hull were rescousers Vpon the reading of the record the case was that an executor brought an action against one upon a promise made to the Testator in which the executor was nonsuite and 3. l. costs given against him and the Defendant bruught an action of debt upon that recovery against the executors and upon this it was demurred in law and Serjeant Towse said that there are two causes of the demurrer first whether the Defendant shall be charged as executor and is not named executor and secondly whether upon the nonsuite of an executor the Defendant shall have costs by the statute of the 23. H. 8. Hobert chief Iustice said to him you say well Note that it was said by Hobert chief Iustice that if a man dies intestate and he to whom the Administration appertaines is sued by others which pretend to be Administrators and sentence is given against the right Administrator and costs given against him the costs shall not be of the proper goods of the Administrator but of the goods of the intestate as the costs which are spent in the spiritual Court for the provate of a Testament shall be only of the goods of the Testator Hutton if the Legatee sue in the spiritual Court for a Legacy and recovers the costs which he shall recover shall not be of his own goods but of the goods of the Testator and no prohibition shall be granted for any such sentence given in the spiritual Court Hobert to the contrary for if by such means the goods of the Testator are so wasted that the debts and legacies of the Testator may not be discharged a prohibition shall be granted and in every case where the sentence in the spiritual Court crosseth the common law a prohibition lyes and he said that in the case of one Barrow in this Court it was his opinion and the opinion of the rest of the judges that if Administration be committed by force of 21. H. 8. and the Administrator pay all the debts and Legacies that in this case the ordinary had not power to dispose of the rest of the goods to the children of the intestate but they shall remain to the Administrator and that by the very intention of the Statute of 21. H. 8. but Hendon said that he could shew a president of that and the Court desired that they might see that if any such president were LLewellings case VPon the reading of a Record in the case of LLewelling the condition of the obligation was that the obligor should surrender his Copihold land to the use of the obligee and he pleaded that he had surrendered that and upon that plea the Plantiff demurred and it was adjudged upon the opening of the case by Warberton and Hutton being only present in the Court that judgement shall be given for the Plantiff for the plea in barre is not good because the Defendant had not shewed when the Court of the Lord was holden Duncombe against the Vniversity of Oxford In a Qu. Impedit in which Duncombe and others were Plantiffs who were grantees of the King against the University of Oxford and the case was Hill 18. Jac. that Sir Richard weston was seised of an advowson in grosse inter alia and was convict of recusancy and a Commission issued to seise two parts of his land and goods and they seised this advowson inter alia and the King granted the advowson to the Plantiffs and the Church became void and they presented and were disturbed by the University of Oxford and their Clark upon which they brought a Qu. Impedit upon which a demurrer was joyned and Serjeant Iones argued for the Plantiff and there was two points in the case first whether an advowson in grosse is given to the King by the Statute of the 28. of Eliz. and the Statute is that the King shall seise the lands tenements hereditaments of such a recusant convict and whether by the same statute an advowson in grosse shall be seised and he held that it shall for though perchance the word lands and Tenements will not carry that being an advowson in grosse yet this word hereditament will carry it to the King by force of the Satute for it appears by dyer 350. that if the King grant an advowson by the name of an hereditament that in this case this will pass the advowson and for that Coke 10. Whistlers case the King by the grant an of hereditament grants an advowson by such words to a common person then by the same reason a common person may grant that to the King by the same words but it may be objected that because an advowson in grosse is not valuable therefore it is not given to the King and upon this doubt upon the Statute of Wills â— H. 8. the question was whether an advowson was devisable by the name de bonis et Cattallis fellon Butler and Bakers case that they are not devisable for it is not valuable but the 4th Iac. between Taverner and Gooch which case may be seen in the new book of entries that an advowson was devisable before the Statute 5. H. 7. 37. it shall be assets 9. H. 6. 55. recovery in value lyes of that but admit that this is only a thing of pleasure for the advancement of a friend yet that shall be given by the Statute to the King But the second
plea for the Plantiff to say that he was seised till the Defendant disseised him absque hoc that C. enfeoffed him and for that reason he ought to traverse the feofment made by B. for the other was but a mean conveyance see Dyer 107. in Trespass the Defendant conveyed to the donee by 5. or 6. discents by dying seised of the estate taile in every of them the Plantiff confessed the intaile and conveyed to him by feofment made by the heir of the donee which was a discontinuance and took traverse to the dying seised of the same feoffor and ruled to bee evil for he ought to traverse the most antient discent 43. H. 3. 7. Secondly it is evil because he had confessed the seisin of E. 6. and the grant by the same King to Wyat and so had confessed and avoyded the seisin of the same King and then the Law will not suppose that E. 6. purchased that again and for that the traverse of his dying seised is evil when he had sufficiently confessed and avoided that before as Dyer 336. in Vernons case a discent was pleaded to the heire from his ancestor the other party said that the ancestor devised that to him absque hoc that this discended to him as son and heire and ruled to be evil for a traverse needs not when he had confessed and avoyded that before Vide 14. H. 8. Sir William Meerings case 26. H. 8. 4. by Fithzherbert but Brook in the abridgement of the same case said that if the traverse is evil then he had waved the plea before and all was evil 7. E. 4. by Littleton for hereby the representation of Queen Eliz. she had gained the inheritance to the Crown and then the traverse being evil he had waved the former plea which was good without traverse and this seisin in the Crown is not answered but by way of argument as here 14. H 6. 17. he ought to traverse absque hoc that he died in his homage 20. E. 4. 5. 35. H. 6. 32. Serjeant Iones to the contrary and as to that which hath been said that the presentment is alleaged to be in jure coronae and the confessing the presentment is a plea by way of argument to which he answered that the record is not so but the seisin of the advowson is alleadged by discent to Elizabeth Queen by force of which she was seised in jure coronae and Iones argued that the traverse is good for every plea in barre ought either to be traversed and denied or confessed and avoided and here that ought to be traversed Dyer 208. 312. in avowry for a rent charge and seisin was alleadged in the grantor of the land in fee and the Plantiff said he was seised in taile he ought to traverse that he was seised in fee and a good traverse Hill 2. Iac. in C. B. Rot. 1921. Edwards against D. it was pleaded that such a man was seised in fee of a rent charge and the other confessed that he was seised in fee and that a long time before he enfeoffed one I. S. there he ought to traverse that he was seised at the time of the grant see the new book of Entryes Tavener and Gooches case in a Qu. Impedit And a note by the Lord Cooke also he said that after the grant there may be an usurpation and so the dying seised in the case of an advowson in gross ought to be traversed â—e 21. E. 4. 1. 20. E. 4. 14. and as to that which hath been said against the protestations he answered it ought to be traversed and for that the rest ought to be taken by protestation and in some cases the conveyance is traversable see Cromwels and Andrews case And so he concluded and prayed judgement for the Plantiff Note that he said that it was adjudged in that Court 2. Iac. in the case of the Bishop of Winchester that two usurpations gaine the advowson from the King And the reason was because the King by an usurpation may gaine an advowson in him out of a Common person and if the King Vsurpe and the right patron present he is remitted Hobert by such usurpation the possession is gained from the King but not the right and note that upon the argument in the principal case by Bawtry and Iones it was ruled by Hobert Warberton and Hutton that if the Defendant do not shew better cause by such a day judgement shall be given against him and Hutton said that he had studied the case and found no doubt but that the traverse is good Winch was absent in the Chancery M. 19. Iac. C. P. IT was moved for a prohibition by Harris Serjeant to the Court of Audience because that the Plantiff was sued there for saying to one thou art a Common Quean and a base Quean and Harris said that a prohibition had been granted in this Court for saying to one that she was a piperly Queen and it was the case of Man against Hucksler and Finch said though the words are not actionable in our Law they are punishable in the spiritual Court for the word Quean in their Law implies as much as whore but Hobert said that this word Quean is not a word of any certain sense and is to all intents and purposes and individuum Vagum and so in certain see more after Note that it was said by Justice Warberton that it was adjudged in the case of one Ablaine of Lincolns Inne that if a man made a lease for years rendering rent and the lessee or a stranger promise upon good consideration to pay the rent that in this case no action upon the case will lye for it is a rent and is a real thing and Hutton Justice being only present agreed this was upon the motion of Finch Serjeant Mic. 43. Eliz. in the Kings Bench in an action upon the case he declared how he let certain land to the Defendant for years in consideration of which the Defendant promised to pay him for the farm aforesaid 20. l. and Hitcham moved that the action will not lye because it appears to be for a rent for which an action of debt lyes but by Gaudy Fenner and Clench it is not a rent but a summe in gross and for that reason because he promised to pay that in the consideration of a lease cleerly an action upon the case lyes but Sir John Walter replyed that a writ of error was brought of this case of Simcocks in the exchequer chamber and the matter in law was assigned for error and it was ruled that no action upon the case will lye for Walmsley said this was a rent for of necessity there ought to be supposed a commutation between the lessor and lessee and that the lessor demanded of the lessee how much he would give for that and then he answered 20. l. this made an entire contract and for that reason an action of debt lyes and not an action upon the case and Savil and
after his death it shall remain to his son and his wife in fee and the book is that this Covenant will raise an use also if this Covenant and agreement will not amount to raise an use then it is not to any use or purpose at all and by consequence the consideration of the marriage is void also and an action of Covenant will very well lye without any such consideration of marriage and so he concluded and prayed judgement for the Defendant adjourned Mich. 20. Jac. C. P. Johnson against Norway IOhnson brought an action of Trespass against Norway of Trespass made in a piece of ground and the Defendant pleaded that 14. H. 7. Roger Le Strange and Anne his wife were seised of the Mannor of D. and one Giles Sherington Abbot of C. was seised of an acre of land in fee and held this of the said Roger Le-Strange as of the Mannor of D. aforesaid and that the 22. H. 7. the Abbot and all the Monks died by which the said land escheated to Roger c. and the Mannor discended to his son and heire after his death who conveyed the Mannor of which the acre is parcel after the escheat by mean conveyance to Hobert in fee and that Hobert 12. Eliz. infeoffed one Wright of the Mannor of which the said acre is parcel and so justified by a conveyance from Wright to the Defendant the Plantiff replied by protestation that the Abbot was not eligible and for plea he said that the aforesaid Hobert 10. Eliz. infeoffed I. S. of the said acre of land absque hoc that he infeoffed Wright of the sad Mannor of which the said acre is parcel and upon this the Defendant demurred generally And Serjeant Attoe argued for the Plantiff that the Plea of the Defendant is evil and then though the replication of the Plantiff is not good yet the Plantiff shall have judgement and he cited Turners case Hobert it is true Cook 8. if the replication be meerly void then it is as you had said but if the replication be the title of the Plantiff and that be insufficient there the Plantiff shall not have judgement though the plea in barre was evil Attoe agreed that if it appear by the Plantiffs own shewing that he had no cause of action and that he had no title he shall not have judgement but here he had made a good title by the lease of the said acre of land and though our traverse is evil and sounds in doubleness yet the Defendant had demurred generally and so he had lost the advantage of the doubleness or of the negative pregnant for if a maâ— plead double matter this is only matter of form and not of substance and therefore after verdict it is good as hath been adjudged but he proceeded in his argument and he said that the barre of the Defendant is not good for by his own shewing this acre of land is not parcel of the Mannor for by the dissolution of the Monastery by the death of all the Monks the land shall go to the founders and donors and not to escheat to the Lord of which that is holden as appears 2. H. 6. 7. and 5. H. 7. if an annuity or rent be granted to an Abbot in fee and the Abbot and all his Monks do die the annuity or the rent is extinct and shall not escheat see the Deane of Norwiches case Coo. 3. agreed that by the death of the Abbot and his Covent the corporation is dissolved and then the possession shall go to the founders and shall not escheat to the Lord of the Mannor of which the Land was holden and he said that this point is proved cleerly by the Statute of the 27. H. 8. and 31. H. 8. of Monasteries in which Statutes there is an express saving to all persons except to the donors and to their heires and no mention is made of the saving of the right of those of whom the land was holden and that proves cleerly that if the makers of the Statute had thought that the land had escheated to the Lords they would have excepted them in the saving of the act as they had excepted the Donors and Founders for if otherwise the lands and possessions shall escheat to the Lords of which the land was holden they are within the saving of the Statute and then it will follow that after the death of all the Monks as at this day that the Lords shall have the land by escheat which the Sages of the Law never dreamt of who made that Statute that any thing may accrew to the Lord and therefore they provided only for the title of the Donors and Founders which is an argument that they thought that upon the dissolution of the Monesteries that the lands shall go to the Founders and the same he thought concerning a corporation at this day as of Suttons Hospital c. and so he concluded that because in the barre of the Defendant he claimed to hold from the Lord to whom he supposed the land to escheat and did not claim c. by his own shewing the barre is not good and though our replication and traverse is not good yet the Plantiff shall have judgement But admitting that the barre is good yet the replication and traverse is good and then judgement shall be given for the Plantiff and the case is the Defendant pleaded a feofment of the Man 12. Eliz. to Wright after that he had shewed the escheat of an acre the Plantiff replied that the 10th Eliz. the Feofor infeoffed C. of the acre of land absque hoc that he was infeoffed of the Mannor of which the acre is parcel and Attoe argued that the traverse is good and he alleadged 38. H. 6. 49. the same traverse and here when the Defendant had pleaded that the acre escheated and had alleadged a Feofment of the Mannor and had not expresly alleadged a Feofment of the acre the Plantiff may traverse that which is not expresly alleadged because this destroyes the very title of the Defendant and he cited for that 34. H. 6. 15. a writ of priviledge in trespass as a Servant to an auditor of the exchequer the Plantiff replied that he was servant to him in husbandry absque hoc that he was his servant to waite and attend upon him in his office and it was holden a good traverse and yet that was not expresly alleadged by the Defendant Hobert chief Iustice said that the traverse is not good for by the Feofment which was made the 12th Eliz. he had confessed and avoyded the Feofment which was made 10th Eliz. and so there needed no traverse and therefore he said the great doubt of the case will be upon the barre of the Defendant whether by the death of the Abbot and the Monks the land escheat to the Lords of whom that was holden or whether that shall go to the Donors and to the Founders and he thought that the land shall escheat to which
answered that if it is meerly Collateral then it shall not go to the successor of the Bishop but to his executors as if the lessee had covenanted or obliged himself to pay this Herriot to the successor he may not have benefit of this obligation but the executor of the Bishop who was lessor shall have that and so he said that the argument made by Hendon is against him for if it be meerly Collateral then this shall not go to the successor and though the lessee of the Mannor may not have it the Plantiff shall not have a Trover and Conversion as he said before but he held this good by way of reservation for modus conventio vincunt legem and as to that which hath been said that the Herriot is to be paid upon the death of a stranger and not upon the death of the lessee himself to this he answered that this is nothing for the payment shall be out of the beasts of the lessee and not out of the beasts of a stranger and so he concluded and prayed judgement for the Defendant Rives case SAlmon avowed for a rent charge and he shewed that Sir Robert Rives had a rent charge granted to him and he further shewed a discent of that to the son and heir of Sir Robert and shewed that the rent was behinde unpaid to him viz. to his son and heir and he avowed as Bailiff to the son and exception was taken to the avowry because it is not expresly alleadged in whose time the rent was due whether in the time of the father or in the time of the son for if it is behinde in the time of the father the son may not distrain for that but it was resolved that the avowry was very good for in asmuch that he had shewed that the rent was not paid to the son this implied the rent was due to the son and not to the father An Executor brought a Scire Facias upon a judgement given for the Testator in debt by him and the Defendant would have pleaded the death of the Testator between the verdict and the judgement per Curiam he was not suffered for he may not plead this in a Scire Facias but the Defendant is put to his writ of error In Trespass for beasts taken in London and the Defendant justified to taking as a distress upon a lease of land in Kent and the Plantiff replied that the Defendant sold the beasts in London and so not a good plea to bring the Trial out of Kent and to have that tried in London which note Batterseys case AN action upon the case was brought against one Hordecre upon an assumpsit and he declared that the Defendant had arrested one Battersey by vertue of a Commission of Rebellion out of the Cinque ports and that the Plantiff keeping a Common Inne the Defendant brought the said Battersey to his Inne and requested the Plantiff to keep him a day and a night and promised in consideration there upon that he would save him harmless and he shewed that he kept the prisoner accordingly and that the said Battersey brought an action of false imprisonment against him and recovered against him upon which the action accrewed and upon non assumpsit pleaded it was found for the Plantiff and now it was moved in arrest of judgement because he had not shewed that the said Battersey was lawfully arrested and imprisoned and then if a man will without cause arrest a man and promise in this case no action will lie for it is no consideration because that the imprisonment is unlawful but Hobert chief Iustice Hutton and Winch contrary for be the imprisonment lawful or not lawful he might not take notice of that as if I request another man to enter into another mans ground and in my name to drive out the beasts and impound them and promise to save him harmless this is a good assumpsit and yet the act is Tortious but by Hutton where the act appears in it self to be unlawful there it is otherwise as if I request you to beat another and promise to save you harmless this assumpsit is not good for the act appears in it self to be unlawful but otherwise it is as in our case when the act stands indifferent but Hobert said it may be there is a difference between a publick officer and a private man for if the Sheriff arrest a man unlawfully and promise as before this is a good assumpsit but perchance otherwise of a private man as here but in the principal case the Defendant had pleaded non assumpsit and this implies a Lawful imprisonment for otherwise the Defendant might have given the unlawful imprisonment in evidence and judgement was commanded to be entered for the Plantiff Claworthy against Mitchel CLaworthy against Mitchel in a replevin the Defendant avowed for a rent and shewed that his father was seised and let for years rendring rent and he died and that the reversion descended to him and for rent behinde he avowed in barre of which avowry the Plantiff said that the father devised the reversion to another and the other maintained his avowry and traversed the devise and it was found that the devise was only of two parties and not of the third part for in very truth the land was holden by Knights service and all this was found by special verdict and for whom the jury had found was the question and it was argued by Hendon that this verdict is found for the avowant and he vouched 32. H. 8. Brook issue 8. in a precipe quod reddat if the issue be whether A. and B. infeoffed the Tenant and it is found that A. infeoffed him but not that A. and B. infeoffed him the issue is found against the Tenant see 14. E. 4. and Dyer 260. in debt upon a lease for years of divers parcels of land and upon non demisit pleaded it is found quod demisit all except one parcel this is found for the Plantiff and â—rin 15. Iac. Rot. 2022. Allen against Soper in a replevin for a horse and avowed for damage fesant and the Defendant claimed Common for his beasts Levant and Couchant upon his land and some in this case were found Levant and Couchant and others not and it was found against the Plantiff and he said in this case when the Defendant had alleadged a devise of all the land and upon this issue is joyned and it is found that part is devised and not all this is found against the Plantiff because the issue is joyned upon a particular and a special point whether all was devised or no and yet he agreed that upon a general issue as in trespass in 20. acres of land and the Defendant is found guilty but only in one yet the Plantiff shall have judgement but not where the issue is joyned upon a particular point as here but admitting that the Plantiff shall have judgement yet the avowant shall have return
for the third part as in debt upon a lease for years and it is found that he had not cause to demand all the rent but that tâ—is ought to be apportioned yet he shall have judgement for the residue and so here Ashley Serjeant to the contrary the jury have found for the Plantiff for the avowant had avowed for all and he alleadged 26. Assise where in an assise the seisin and the diseisin was found and yet because there was no Tenant found of the Frank-tenement the Plantiff shall have judgement and as to that that had been said that the avowant shall have retorn for part he denied that for now it appeared by the special verdict that the avowant and the devisee are Tenants in Common and Tenants in Common ought to joyn in avowry and for that reason the avowant shall not have return for any part but he ought to replead Dyer 177. see the book Hobert said that without question in this case if the jury had given a general verdict this had been against the Plantiff for it was not devised if all was not devised according to the issue and then if it would have been against the Plantiff in this case of a general verdict the special verdict shall be construed to be of the same nature in law and it shall be adjudged by us against the Plantiff for generally where the general issue shall be against any of the parties there the special verdict shall be of the same degree and Winch and Hutton agreed and by Winch who pleads in the affirmative ought to prove all to be true as in the case of Soper which had been remembred by my brother Hendon and by Hutton every issue which is taken upon absque hoc ought to be precisely found and as to the second point he held that the avowant shall have return for part for here the jury haue found the third part of the reversion in him and by that there appears a sufficient certainty to the Court to make an apportionment then if the Court may make an apportionment the avowant shall have return for so much as is due to him but if the apportionment is to be made by the jury and not by the Court there the avowant shall not have return for the third part but if it was in debt for 40. l. and the jury finde 20. l. the Plantiff shall have judgement of that part to be apportioned by the jury and so in Trespass if part be found for the Plantiff he shall have judgement for the demand is by writ but in our case it is an avowry and it is a certain issue and for that reason the avowant shall not have return for the third part adjourned Hutton alledged 28. H. 8. 32. and at another day judgement was commanded to be entered for the avow an t Hobert and Winch being only present Note that if a man make a lease of several parcels of land in a Town and this is for the trial of a title in an ejectione firme he ought to enter into every part of those several and to leave a servant or other to keep the possession till he had entered into every parcel and then to deliver the lease of all and this is good Empson and Bathrust before THe case of Empson against Bathrust was moved again by Harris and he praied judgement for the Plantiff and it had been said that this obligation is void by the Statute of the 23 H. 6. but he held that this Statute did not extend to this obligation for it is only where a sheriff takes a bond of any person which is in his ward and yet he said he never found in any book the Sheriff might exact any fee of any person for he is an officer of the King but 21. H. 7. he may prescribe to have a bare fee but the Statute of 23. H. 6. appoints little fees in some cases Secondly he argued in this case that the Sheriff may take a bond for by 29. of Eliz. this is a due debt to the Sheriff and then if the Sheriff give the partie day till another day it is good reason he shall have a bond for that for his security Thirdly he held that the Sheriff may take this bond of the party after the extent and before the liberate by the Statute of the 29. Eliz. for otherwise perchance when the Sheriff had made the extent perchance the Conusee will not sue out the liberate and so the Sheriff shall be defeated of all his labour and travel taken in the extent and in the last place he said that in case the summe exceeded a 100. l. the Sheriff shall have 6. d. in the pound for that which exceeds and 12. d. for the first hundred pound but it was resolved by Hobert Winch and Hutton that judgement shall be given against the Plantiff and first they agreed this obligation not to be within 23. H. 6. for the partie was not in the ward of the Sheriff and so was resolved in Bewfages case Secondly it was agreed by the said 3. Iustices that the Sheriff may not take his salary appointed by the Statute till a compleat execution viz. till the liberate for the words of the Statute are in the negative and doth not establish the fees but only tolerates them and Hobert said if the Sheriff made an extent and before the liberate a new Sheriff is chosen then in this case the new Sheriff shall have the fees appointed by the Statute and not the antient Sheriff and by Hobert if the Conusee sue an extent and then refuse to sue the liberate to the intent to defraud the Sheriff of his fees the Sheriff shall have his remedy by his action upon the case and by Hutton if the Sheriff return upon the extent that he is ready to deliver that to the Conusee this is sufficient to intitle him to his action upon the case and thirdly it was holden by Hobert and by Winch that the Sheriff shall have but 6. d. in the pound for all if it exceed 100. l. for so was the intent of the Statute but Hutton said that the Common practise is otherwise and Hobert said that he did not value that for he knew well enough that the Sheriff will rather take more then less then their fees and though it had been said that if such a Construction shall be made then the Sheriff shall have as much for executing 100. l. as 200. l. to this he said the Sheriff ought to take this subject to this casually for it is the very words of the Statute and lastly it was resolved by Hobert and Winch that the obligation was void by the Common law and extortion and a taking by the Colour of his office see Dive and Manninghams case and Hobert said that every bond that is taken for any thing which is malum in se is void by the Common law and this extortion is malum in se and so void by
Infant was not bound by this Covenant at the Common Law and no Collateral covenant shall be maintainable upon the Statute for this being against an Infant it shall be taken strictly as a custome that one shall infeoffe yet that custome will not warrant him to lease and release and as to that which had been said that it is incident to every retainer to serve truly and faithfully that is very true and an action upon the case lies upon a covenant in law but not upon the covenant in fact he ought to have Collateral securitie which was also confessed by Hutton and he said moreover that the retainer is for the benefit of the Infant that he learn his Trade but the covenant here is for his disadvantage and for the advantage of his Mr. and for that reason it is void as if an Infant had covenanted to pay 10. l. for the learning of his Trade when his time was up Winch Iustice contrary to that last point for he thought the covenant to be incident to the retainer and good though he is an Infant as an Infant who levyes a fine is also inabled to make an indenture to lead the uses and note that Hutton and Hobert said also that the barre of the Defendant is good viz. the pleading of the want of the certificate and for that reason the replication of the Plantiff that he had 40. s. per annum is evil and though the rejoynder of the Defendant is evil and a departure yet it appears that the Plantiff had not any cause of action and for the covenant they said that they two are strong in their opinions and upon that Winch agreed also that judgement shall be given against the Plantiff and Attoe moved the Court what remedy the Plantiff may have for the loss is 500. l. and per totam â—uriam he shall not have an action of accompt for that lies not against an Infant being an apprentice Coo. 11. 89. and the Court said that as to the retainer and the damage it is no more then if an Infant had been retained by word and there is not any remedy but an action upon the case and Attoe said that they had thought to have brought an action of Trover and conversion and he doubted whether that will lie and after the Court said to him you had best to bring an action upon your case and it was afterwards ordered by Arbitrement Oxford and his wife against Goldington IN a Prohibition for Oxford and his wife against Goldington to the Court of Audience for they are sued there for a legacie devised to the Plantiff by one George Cotton and this is as they are Administrators to one William Cotton who was executor of the said George for that he libelled against the Plantiffs in the Prohibition in the Court of Audience and had shewed that they had goods of the first Testator and a Prohibition was awarded and Finch moved for a consultation and he said if by the spiritual Law an Executor wasts the goods of the Testator and after dies intestate that in this case his Administrator shall answer that viz. the debts and the legacies of the first Testator and Doctor Pope who was present in the Court said that the Law was so and so he said the Common Law was that is the Statute of 31. E. 3. which gives the same remedy against an Administrator as against an Executor if the Executor die intestate for it is the interest of the first Testator upon which the Administrator shall be committed to the next of the Kin and if none will take that upon them then the Administration of the Executor ought and ought to take several letters of Administration for that and if no letters of administration is taken and yet he meet with the goods he shall be charged as an Executor of his own wrong and if no goods be of the first Testators then it is no reason that he should be charged and the Statute of 31. E. 3. gives no remedy per Curiam but against the immediate Administrator and if the case be as you have alledged then the Legatee or the debtee is at no damage or mischief for he may sue the Administrator of the first Testator if he had goods or any other who had goods as Executor of his own wrong and if none will take letters nor yet meddle with the goods then the debtee or the Legatee may take letters of Administration himself and so no consultation was awarded but the Prohibition stood Avis against Gennie and others ONe Avis brought an action of Trespass of his close broken against Gennie and two others and the writ was general but in the the declaration he affirmed that to be in Ayring half a Rood and in digging another half Rood and after in his new assignement shewed that to be a Sellion containing by estimation and acre and it was found for the Plantiff and damages assessed to 20. s. and now it was moved in arrest of judgement by Attoe because the new assignement is more large then the declaration and the opinion of the Court was that because this was but an action of Trespas where damages only is to be recovered that this is very good but otherwise it is perthance if that had been in an ejectione firme Brigs case BRigs brought a Prohibition against another and alledged that the Dean and Chapter of D. was seised of the Mannor and the Defendant being Vicar sued to have Tithe in Court Christian and shewed that time beyond memory c. they had held that discharged of Tithes for them and their Tenants and that they let that to the Plantiff and it was moved by Hendon Serjeant that the Dean and the Chapter are a bodie Politique and temporal which are not capable of this prescription in non decimando Coo. 2. the Bishop of Winchesters case Hobert said that the Dean and Chapter are a bodie spiritual and are annexed to the Bishop throughout all England and if the Bishop is capable of that as it is plain he is then the Dean and Chapter is also capable of that which was granted by Hutton but Winch doubted for Winch said he may be a lay man and for that the Plantiff ought to averre that he is a spiritual person Hutton confessed that the Dean may be a lay man as was the Dean of Durham by special licence and dispensation of a King but that is rare and a special case and is not common and general and therefore not to be brought as an example which was also granted by Hobert chief Iustice and upon that day was given over to the Defendant to shew cause wherefore the Prohibition shall not be granted Anne Summers case in Dower A Writ of Dower was brought by Anne Summers against the Tenant of the land and he pleaded a fine with proclamations levyed by her husband 14. Iac. in which year the husband died and the wife had not claimed within the Statute
have Dower because the feme is dowable of them for this sufficeth to say that he had assets generally 7. Ed. 2. Dower 184. out of which I conclude that this voucher is not like to other vouchers but this is onely to secure the estate of the Purchasers and then as to the president I answer first it was found there that the vouchee had nothing and also it was never debated for a writ of error was brought of that and nothing done for this was referred to Arbitrement and so I pray that no writ of seisin may be awarded and the Court semed to be of opinion that the judgement may be conditional chiefly Hobert and Iones vehemently but now they said because that judgement is once given they are not to reverse their own judgements and to give another judgement and now it is as if he had no assets but yet that doth not aide an erroneous judgement given before and therefore if the Tenant will be relieved he ought to bring his writ of error but it was said that if this judgement was to be given again this was as it should be because that is all one now as if he had not assets and the judgement stood as it was Potter against Brown NOw the case of Potter and Brown was moved again and Hendon took two exceptions as before first for default of averment and secondly the words are not actionable for it was adjudged in Lanes case if one say of another that he is as arrant a Thief â—s any is in the Goal of Warwick this is not good without averment that there are Thieves in Warwick Goal and here it shall be so for the law doth not suppose that there are Thieves in England and besides here in this case the subsequent words do qualifie the other for the words under the for ought to be of such a thing as is Theft and that is not so in our case Serjeant Richardson to the contrary the last words do not qualifie but rather aggravate them for he gives a reason of his speach and this taking is to be understood with a fellonious intent for the first words do charge him to be a Thief and therefore the last words shall be intended that he took them with a fellonious intent for he did not only charge him in the general but in particular but the Court c. Hobert Hutton and Winch said that the Plantiff shall not have judgement because he failes of averment for he did not say expresly that he is a Thief but as arrant a Thief as any is in England and we are not to enquire after words except they are plain for if one say he was in Warwick Goal for stealing of a Horse adjudged not to be actionable and we may not presume that there are Thiefes in England and so judgement was arrested Adams against Ward INtra Trin. 21. Iac. Rot. 1845. note that it was said in an action upon the case between one Adams and Ward an Attorney that whereas one Hennings sued Adams in an action of debt and Adams retained Ward to be his Attorney and gave him warrant to plead the general issue and Ward suffered the judgement by nihil dicit that this was not any cause of an action except it was by Covin and for that if Adams had not laid in his declaration that this was by Covin he should not have recovered and at another day it was agreed that the Covin was not traversable by Plea but only in evidence at the Bar. Cook against Cook in Dower IN a writ of Dower between Cook and Cook they were at issue and at the day of nisi prius the Defendant pleaded that the demandant had entred and was seised and yet is seised since the last contrivance c. Octabis Sancti Hillarii ultimo quo die continetur usque ad hunc diem c. vicesimum diem Februariâ— which in verity was the day of the nisi prius and it was demurred upon this Plea for two causes the first was because he had not shewed that the Tenant was disseised for otherwise it shall not abate the action and to say that the demandant was seised was not sufficient for though this implies so much that the other was disseised yet here it ought to be expresly alledged but the Court spake nothing to this but Winch thought this to be very good according to Dyer 76. there the entrie is pleaded only and yet good but they resolved that the pleading of the continuance is not good for it is from one Term to another nisi prius justiciarii Venerint c. and he ought to have precisely shewed that but the question now was whether the demandant shall have judgement to have seisin or have apetite Cape only and Iustice Hutton said that it was adjudged in Sir Henry Browns case that if a man pleaded an insufficient Plea after the last continuance there the Plantiff shall have judgement as if the first issue had been tried for him and for this he cited the new book of entries fo 57â— and this may not be a judgement by default for they both appeared and therefore he shall have the same judgement as if the first issue had been tried for him and it was said in this case though the Defendant did demur generally yet this is very good The residue of Trinity Term in the 22. year of King James GOdsel an Attorney brought an action upon the case for words and he laid in his declaration that the Defendant spoke those words among other Master Godsel is a knave for he forged false deeds for which he was imprisoned at York and should have lost his ears and the jury found only these words Godsel is a forger of writings and deserves to lose his ears and Hendon moved in arrest of judgement that the words which are found are not the words in the declaration for the words were there that he forged deeds and it is only found to be writings and it was adjudged in this Court between Brown and Ellis that for saying an Attorney had forged writings no Action will lie for they are too general and besides it doth not at all appertain to him to make writings and so for Nowels Case he is Cooped up for forging of writings and it was adjudged not to be actionable and so to say he is a forger of writings by which he had cozned fatherless Children the words are not actionable because he did not say Deeds and upon this motion and reason the judgement in this case was arrested This case is Entred Hillarie the 21. Jac. Roll. 550. Sir George Trenchard against Peter Hoskins TRenchard brought an Action of Covenant against Peter Hoskins and declared upon an indenture bearing date the 19th of September 44. of Eliz. made between Iohn Hoskins father of the Defendant and the Defendant on the one part and the Plantiff on the other parte by which they bargained and sold certain lands to the
the parties hinders the operation of the law and that law will not provide for him that provides not for himself and the Lady her self was partie to the limiting of the uses and she covenanted that she will be seised by vertue of the fine and under the condition in the indenture and so it is a plain Surrender of her former estate and so I pray judgement for the Plantiff The argument of Serjeant Hendon to the contrary HEndon contrary there are 3. points First whether this be a precedent or a subsequent condition and I conceive it is subsequent and here the indentures being but to declare the uses of the fine and not to create any use ergo it shall be guided by the intents of the parties appearing in them and so is the Earl of Rutlands case Cook 5. and Dyer 357. and Shelleys case and the meaning of the parties was not to raise any use to Robert but only a possibilitie to reduce that by the performance of the condition and first it is here said that the Conusee shall be seised to the uses hereafter expressed and under the conditions and then the use ought to preceed the condition for no man may stand seised under the condition except the condition is subsequent to the use to arise Secondly when is the use to arise to Robert surely when he payes 10. s. and then in the mean time the use is to the Lady and her heirs for tunc had here relation to when as it is said in Boles case Cook 3. and in Grants case cited in Loves case Cook 10. and 17. Ed. 3. 1. all which cases prove that tâ—en had relation to when and before this when he had nothing and this doth appear to be the agreement of the parties and now for the words themselves I take it that they make a subsequent condition and so it is here limited in intention and for that in matter also and it is said in Colthirsts case in Plowden that if the estate doth first pass reducible upon condition then it is subsequent and here it is limited to the Conusee and his heirs if the Conusor do not pay but here it hath been said is inversio verborum and the consequent is placed before the Antecedent and this hath been proved by Logick I never knew cases in law to be expounded by Logical and Grammatical learning but by the intentions of the parties and here I conceive that the estate is vâ—sted in the Conusee by the fine and so the condition is subsequent but admit it is Executory and I say concerning that there are these differences that if the state of the thing granted is executory and that the condition of the thing granted is Executory and the condition is to remain with the estate so long as the estate doth remain the condition is precedent 28. E. 3. 2 4. 3. 1. H. 6. 32. but if the condition be but one time to be executed and that not contained with the estate then it is subsequent 10. Eliz. Dyer Calthorps case but here our estate is executed for it is expresly limited to the Lady Cesar and her heirs which takes away all implied uses so that no implied use shall result in the mean time and so 75. Assises land given to a man and to his heirs if he have heirs of his body now this if is subsequent and so I conceive that it is not a condition simply but a conditional limitation for it appears by Mr. Littleton because it is no otherwise expressed and another reason is because the condition is annexed to the future time ergo that is subsequent and yet I grant there is a difference betwixt such an estate conditional annexed to an interest and where it is is annexed to an authoritie it may be precedent but for an interest it is subsequent as is the case of Bracton lib. 2. fo 3. and now for the second point whether the heir may and ought to perform that and I do conceive that he is and it is not annexed to the person because it is real and doth arise with the land Secondly yet the law doth expect who ought to have performed that but it is the performance it self which the law doth respect 4. E. 3. 2. such condition real which doth arise with the land and in such a case no notice is in that case requisite and the last point is whether the estate for life is gone and I hold that it is saved by the common law of England for the fine only is as the grant of the reversion by the explanation of the indenture and then there is no surrender in the case but when the condition is performed the estate for life doth remain and so was it resolved in Mr. Mansors case and yet I agree that a litle matter will make a surrender and Mr. Ruds case where lessee for years of an advowson was presented by the Patron that was a surrender but the Statute of the 27th of H. the Eighth at the end saved that though it is to her own use for the words of the saving are to every person and their heirs which hereafter shall be seised to any use all such former rights c. possession c. as they might have had to their own use in any lands whereof they be seised to any other use whatsoever and so upon the whole matter I do conceive that judgement ought to be given for the Defendant The residue of the case of Gibson and Ferrers NOw the case of Gibson and Ferrers which see before was argued again by Serjeant Bridgman and he said as before the award is not good for the interest and yet he now agreed that covenants bonds and contracts for usury are good in law but yet it may not be awarded 17. Ed. 4. 5. if a man do submit to Arbitrators they may not award that he and his wife shall levie a fine but if the partie himself do promise that this is good and shall binde the wife to perform that and besides he said that here is an award made only of one side and nothing is allowed to Ferrers and so not good 9. Ed. 4. 29. 29. H. 6. 22. and I pray that the Plantiff may be barred Hendon to the contrary and he argued if an award be good in any part though it be not in that which is assigned for breach yet it is good upon such plea of nullum fecerit arbitrium and the other shews an award and assignes the breach in this case the breach is not traversable for it is of the form and not of the substance of the action but to that the Court did presently answer that the cause of the action is the breach of the award and this he ought to make apparent to the Court for otherwise he shall not have any action and though the breach is not traversable yet it is of the substance of the action for upon such plea pleaded he not only
in a double sence shall be taken in the best sence and it shall be intended he spoke Treason in putting of a case or in speaking that after another and yet he offended not and so if he had said that he had written or printed Treason for so do the printers of the King and the Clark of the Crown and so I conceive that the Plantiff shall not have judgement Easter 1. Carol. ANd Serjeant Bawtrey the Term following argued for Serjeant Hitcham that it was plain that the Defendant spoke the words with a full intent to take away his life and to speak Treason is to speak ex corde suo and not that which another spake and now in Easter Term 1. Carol. judgement was given for the Plantiff by Hobert Hutton Harvey and Crook with one accord and they said the limitation of the time is not material for if it was spoke in his infancie c. Brook ought to have shewed that and Crook cited Walgraves case 32. Eliz. in B. R. one said of him that he was not a good subject and adjudged because he spoke them maliciously and he being one of the privie chamber that the action will lie and so 5. Iac. Blanchflower and Alwood thou haste spoke Treason and shall be hanged for that adjudged to be actionable and the 7. Iac. Barford against Prowse thou haste spoken Treason and I will prove that adjudged to be actionable and judgement was given for the Plantiff according Pleadal against Gosmore PLeadal brought an action against Gosmore for the taking of his Colt and fettering him by which the Colt was much the worse and the Defendant justified and shewed that the Colt was taken within such a Mannor which was the Counteses of Hartfords and that she had estrayes within the same Mannor and he justified the taking as Bailiff to her and shewed that he fettered him to the end to keep him from doing harm because he was wild and Serjeant Attoe demurred in law and he said that a man may not fetter an estray because he shall be paid for his keeping and for the hurt that he did and he cited a judgement 8. Iac. in this Court Rot. 1749 between Harvey and Blacklock for the taking of his horse and the fettering him by reason of which he fell into a ditch and was drowned and the other justified the taking as an estray and he fetred him to one of his own horses because he was wild and they both fell into a ditch and were drowned c. and adjudged to be no Plea and the reason which the Lord Cook gave was because he shall be paid for the keeping of him and for his damage and of this opinion was Hobert in the case at the bar but Winch Hutton and Harvey contrary that he may fetter him as he may his own horse and for the case which was alledged they said that there was no proclamation pleaded and so the justification was not good and judgement was entred for the Defendant and this was the last case that ever Iustice Winch spake to in the Court for he being a man not more admired for his profound learning then he was reverenced for his pietie and integritie died upon Friday following being the fourth day of Februarie in the morning as he was making readie to go the Hall Elizabeth Davis against Hawkins THere was a case between Elizabeth Davis and Hawkins in the spiritual Court for defamatorie words and sentence was given against the Plantiff who appealed to the Arches and judgement was given for the Plantiff and 12. d. costs and then came the general pardon and the Defendant did appeal to the deligates and there the second sentence was affirmed and greater costs given and the Defendant did plead the general pardon and they would not allow of that and now it was moved for a prohibition and these points were debated by the Councel and agreed by the Court c. by Hobert and by Harvey that though this suit and sentence is only for to make the partie to denie the words and confess his fault in some publick place yet it is in effect as if it were meerly at the suit of the King for reformation and this is a new invention which they had found out to take away the benefit of the pardon of the King and now to the new costs which were taxed by the deligates they were not taken away by the pardon for though the first offence was yet because this new suit was not only to quash the sentence for the offence but also for the costs ergo these new costs were assigned for the unjust vexation for he was the cause of the removing of that and so they may do for the unjust vexation but not for the first offence The End A perfect Table of the Principal matters contained in this Book A ACcompt against a Bailiff to the damage of 100. l. and judgement to accompt he makes default what judgement shall be given 5. Accompt what is a good Plea in bar therein 9 An action upon the case where a request and the time and place thereof necessary and where not 2 Action for saying the Plantiff is a false for-sworn knave and took a false oath at a Commission 2 3 Action for saying thou art a Thief and hast stolen 20. load of my furzes lieth not 3 10 Action for c. thou hast stolen Hay from Mr. Bells Racks and judgement for the Plantiff 6 Action upon the case upon a promise what is a good consideration a quaint difference taken 7 8 Amendment of a judgement where and within what time good matter 89 Award where good in part and void for the rest 1 Action for words that the Plantiff stole Tobacco out of his Mrs. shop not good without averring that there was Tobacco there 15 Attachment denied upon an affidavit 15 16 Audita Querela where it lieth against one Feoffee and where before an Ouster 20 23 Action upon a promise what consideration is good therein to forbear 22 23 Action upon the case for procuring the Plant to be indicted for stealing Vetches where it lieth and if it ought to be a writ of conspiracie 28 54 An action by an Auditor for saying you are a Cozner and live by Coznage 33 39 40 41 An action for saying the Plantiff loaded a ship with Barley and stole 7. quarters of it by measure it lieth 41 Avowrie for rent granted to the father and that it was arrear to his son good without saying in whose time it was arrear 48 Action upon the case to save the Plantiff harmless for keeping a prisoner good without saying he was lawfully arrested 48 49 In avowrie for rent upon a lease by the father the son claimeth by discent the Plantiff saith the father devised the reversion to another the jury found a devise only of two parts judgement given for the Avowant 49 50 Amendments not allowed upon indictments actions popular or penal Statuts and
against Hutchinson and made title to present to the Church in the right of his wife and after the issue joyned and before the venire facias the wife died and the Plantiff shewed that himself had took out a venire facias in his own name and upon that Harris demurred in law because he supposed that the writ was abated but Winch was of opinion that the writ was not abated because this was a Chattel vested in the husband during the life of the wife Ferrers against English IN an action upon the case upon a promise between Ferrers and English and upon non assumpsit it was found for the Plantiff and now it was moved in arrest of judgement that the venire facias was not well awarded for it was proecipimus quod tibi venire facias Duodecim liberos et Legales homines Coram Henrico Hobert apud Westmonasterium where that ought to be Coram Iusticiariis nostris and therefore the writ being insufficient it is not amendable and for that he cited the case where the venire facias was awarded to th Coroner and that ought to be awarded to the Sheriff and this adjudged to be erroneous this case was answered that this was the custome and there was a case alledged to be adjudged 30. Eliz. between Cesor and Story where a Capias did issue out of this Court in this form Ita quod habeas Corpus ejus Coram Iusticiariis omitting apud Westmonasterium and this was reversed for error but this was answered to be in an original which ought to be precise in every point but Serjeant Crook said that because this was but judicial process and the trial is taken upon the habeas corpus that it is amendable for in all cases where the roll is right though there be an error in the venire facias yet this is amendable Sir Robert Nappers case A Rent was granted to Sir Robert Napper and if it happen that this annual rent to be behinde that then the land shall at all times be open and subject to distress of the Grantee according to the true form and effect of the said indenture and upon all the pleading a demurrer was joyned and the sole doubt was whether the last words were a distinct covenant by themselves for if they are then the obligation is forfeit for the lands are not open to distress because that the mother of Sir Robert held that till the age of 24. years or whether they are part of the former covenant and then the former worde will qualifie that because there was not any act made by him to the contrary and it was argued by Bawtrie that they are all one covenant for they charge the land with the Annuitie and he covenants that this shall be open to distress and it is all one matter and thing and is therefore a covenant and where one covenant doth depend upon another there one expounds the other so Dyer in Throgmortons case 151. and he urged many cases which are cited there and he cited the Lord Cromwels case where words of proviso are placed between words of covenants yet they will work according to the intent of the persons and there it is said that ex antecedentibus et consequentibus fiat relatio and so it appears to him that this referred to the estate which Sir Thomas had from his father and that he made nothing to impeach or to alter that and he cited the case of Sir Moile Finch though by the fine the Mannor of Beamstone was destroyed yet in the said indenture free egress and regress was reserved to the Courts for the Lady Finch afterwards an other fine was levied of all the lands and Tenements except the Mannor of Beamstone where in verity that was destroyed before and yet the judges did construe this to be a good exception because this was in verity the intent of the parties and there they made a construction upon the covenants which did lead the fine and upon the latter indenture which did direct the others and so the principal case in Althams case the judges did not only adjudge upon the first words of the lease but upon altogether and he cited the case of Hickmote where the exception extends to all the parties of the precedent deed and Hendon argued to the contrary that they were several covenants and yet he granted all the cases cited by Bawtrie but said they all stood upon this difference where it is a joynt thing and where it is a several thing as here and for that reason that ought not to be applies to that for they are distinct sentences and not joynt as is expressed in Sir Henry Finches case Coo. 6. and they ought to be construed as distinct covenants for otherwise they shall not take effect at all for then he had not any remedy for the rent which is expresly against the intentions of the parties and Crawley Serjeant said that if the two first covenants were according to the title and the last was only conditional if the rent was behinde that then it should be open to distress and the Court seemed that they were several covenants but judgement was respited for that time and the same Term the case was moved again by Hendon that they were distinct covenants and that this was the scope of the indenture and the intention of the parties that this should begin presently and secondly the two covenants are of several natures and if the third covenant be not several then it is idle for all is implied in the first and day was further given to advise of that but the opinion of the Court seemed to be for the Plantiff See after Trin. 22. Iac. Westlie against King VVEstly against King in debt the bond did bear date the 11th of February 18. Iac. and this was to perform an award Ita quod the ward be made before Easter of all controversies depending between them in the Star chamber and the Defendant pleaded that there was no award made in the mean time and the other shewed the award and assigned the breach and the Defendant replied that before the award was made c. upon the 16th of March they discharged the Arbitrators and so concluded as at the first they made no award and now Serjeant Davenport moved that he had not maintained his bar quod non fecerit tale arbitrium and have given the discharge in evidence for now it appears that the bond is forfeit but Hutton said that the Plantiff ought to have shewed this discharge and so he had shewed the forfeiture and he said further that the rejoynder is an affirmation of the bar if they were discharged then they made no award and this notwithstanding shewed a forfeiture of the bond but not upon the point which the Plantiff had alledged and Winch said though this is is so yet it appears that the Plantiff had cause of action by all the record before and day was given over in the case