of five Steers and that certain Malefactors unknown to him did steal them from him at Broughton in the County of Bucks and that the 22 of Novemb. 13 Jacob. the Defendant pursued them to London and there did search for the Steers and found them in the possession of the Plaintiff and did require the Plaintiff to shew them unto him and how they came into his possession and because that the Plaintiff did deny to deliver them unto him and did refuse to permit him to see them and to shew how he came by them and that the Plaintiff gave him such incertain answers that the Defendant did suspect the Plaintiff had committed the Felony and the Defendant for better examination of the promisses and restitution of the said Cattel did inform the said Sir Thomas Bennet of the premisses and did procure a Warrant from him to bring the Plaintiff before him to be examined concerning the said Cattel whereupon the Plaintiff was brought before him and examined and because he could not make it appear how he came by them and for that he gave very uncertain answers and for that the said Sir Thomas did suspect him he did therefore binde him in a Recognizance of 50 l. to appear at the next Goal delivery and did binde the Defendant in a Recognizance of 20 l. to prosecute whereupon the 29 Novemb. 13 Jacob. the Defendant did exhibit a Bill of Indictment and did give evidence to the Iury that the Cattel were stoln from him and that he found them in the Plaintiffs possession and that he denyed the Defendant the view of them or to shew how they came to his hands whereupon the Iury found the Bill and thereupon the Plaintiff did appear at the next Goal-delivery the first Octob. 13 Jacob. and was there imprisoned until he was legally acquited which is the same imprisonment for Felony and procurement to be indicted and detainment in prison whereof the Plaintiff complains The Plaintiff confessed the Felony Replication but says that the 23 Octob. 13 Jacob. Thomas Burley was possessed of the said five Steers at Barnet in the County of Hertford and did then and there sell the said Cattel in open Market to the Plaintiff for 17 l. being a Butcher and that the said sale was entered in the Toll-book and the Toll payd wherefore the Plaintiff was possest of them and did drive them to his house in London the 24 Octob. 13 Jacob. and that the 21 Novemb. 13 Jac. he killed four of the said Cattel and then the said 22 of November the Defendant came to his house to search for the said Cattel and the Plaintiff did acknowledg to him that he had the said Cattel and that he had killed four of them and that he had bought them as aforesaid and did then also shew unto him the Steer that was then living and that the Defendant had sufficient notice that the Plaintiff had bought the Cattel in the Market and that although the Defendant did know that the Plaintiff had bought them and was not guilty of the Felony yet the Defendant out of malice and against his knowledg did charge the Plaintiff with Felony c. as he hath declared absque hoc that the Plaintiff did refuse to permit the Defendant habere visum of the said five Steers or to shew how he came by them Whereupon the Defendant demurred in Law Demur and shewed that the matter of Inducement to the Travers was insufficient and that the Travers was insufficient and the matter not traversable And I conceive that the Plaintiff ought to have Iudgment For in the 7 Ed. 4.20 In a false Imprisonment The Defendant said that before the imprisonment one B was killed by certain persons in whose company the Plaintiff was and the report of the County was that the Plaintiff was party to the Felony whereupon he arrested the Plaintiff for suspicion and did commit him to the Sheriff And Bryan did Travers the Indictment without that that the Plaintiff was in their company and without that that the report was so c. And Nidkam said there that issue could not be taken upon the report but upon the matter in fact For if men say in the Country that I am a Thief that is no cause to arrest me but matter in fact ought to be shewed which is Traversable whereupon issue was taken upon the first matter onely and in the ninth of Ed. 4. it is holden that a man ought to shew some matter in fact to prove that the Plaintiff is suspected And 11 Ed. 4. 46. in a false Imprisonment The Defendant who justifies upon a false imprisonment for Felony ought to shew some matter in fact to induce his suspicion or that his goods were in his possession of which the Country may take notice And in the 17 Ed. 4. 5. in a false imprisonment the Defendant justified because that A. and B. did rob another and did go to the house of the Plaintiff whereupon the Constable did suspect him and did require the Defendant to assist him in arresting him c. and holden there that they ought to surmise some cause of suspicion or otherwise the plea was not good 7 H. 35. Suspicion cannot be tryed because it is but the imagination of a man which lies in his own conceit 5 H. 7. 4. In a false Imprisonment the Defendant justified because that A. was poysoned and the common voyce and fame was that it was done by the Plaintiff whereupon he was taken and there it was argued if this were sufficient cause some said that he ought to shew some special cause but it was agreed in conclusion that it was but all agreeo that suspicion only is not enough without alledging cause of suspicion and says 2 H. 7. 16. and 7 Elizab. Dyer 236. In an action on the Case for calling one Thief the Defendant justified for common voyce and fame and adjudged insufficient but this with suspicion had been sufficient cause to arrest one and carry him to the Goal And Michaelm 38 and 39 Elizab. In the Common-Pleas in an Action on the Case by Damport against Symson for giving a false testimony adjudged that the intent of the swearers cannot be put in issue or tryed 2 H. 4. 12. B. 46 Ed. 3. 4. 2 H. 7. 3. In a Trespass the Defendant justified that he was robbed in the County of B. and did suspect the Plaintiff in the County of Stafford The Plaintiff pleaded De son tort demesne c. and it was there agreed that all the case was in issue And Tow said that it should be tryed by both Counties if they could joyn but he doubted if they could joyn but in the 16 of H. 7. 3. B. this case is reported to be adjudged that if the Counties could not joyn it was no plea because it ought to be tryed by both And so de son tort demesne shall be full of multiplicity and therefore it is no plea as in Crogates Case
portion not payd then if the Defendant shall pay to the said Susan the said 400 l. within six weeks after the said first of May to such person to whom the said Elizabeth by the said Will ought to pay the same and shall procure good and sufficient discharge to the said Elizabeth of the said sum of and from all persons to whom the same shall be due that then all the said Obligations shall be voyd and delivered up to the Defendant cancelled and made voyd And the said Elizabeth did covenant that until manifest default was made in the premisses and the said Elizabeth shall be thereof damnified and upon reasonable request no satisfaction shall be given to her she will not take any advantage by reason of the said Obligation nor will prosecute any Suit against the Defendant or any other bound in the said Obligation And the Defendants said that the Plaintiffs nor any of them was not damnified by reason of the said Obligation in the Declaration or by reason of any of the said other Obligations and did aver the said Obligation in the Declaration and the said Obligation of 120 l. in the Indenture to be all one and that the said several days of payment limited by the Indenture nor any of them at the time of the Writ purchased were incurred Vpon which Plea the Plaintiffs demurred and the Defendant did joyn And I conceive that Iudgment ought to be given for the Plaintiffs for the Plea is utterly insufficient for divers causes And yet I do agree that although the Obligation be upon a condition yet is the Indenture a Defeasance thereof so that it is sufficient to the Defendant to perform the one or the other But the Indenture is of two parts 1. That if the Defendant shall pay to Elizabeth the daughter 500 l. and shall perform the other things mentioned in the Plea that all the Obligations shall be voyd and delivered up 2. The Plaintiff Elizabeth did covenant that until the Defendant should make default in the premisses and she should be damnified and upon request no satisfaction given to her she should not take any advantage of the Obligation nor shall prosecute any Suit against the Defendant or any other bound in the said Obligation And as to the first part I do agree that this is a good defeasance of the Obligation but the last clause is onely a Covenant and cannot be pleaded in bar of this Action brought upon this Obligation as in the 21 H. 7. 30. John de Pusetoes Case The said John and others were bound to T. who by Deed did grant to the said John that he should be quite discharged of the duty and if he be vexed or sued that the Bond shall be voyd which Case is there very largely argued but I conceive the better Opinion to be that the Bond is discharged because that the words are in effect as the words in the first part of this Indenture scil That if such act be made the Obligation shall be voyd But there Fineux said That if I grant to my Tenant for life that he shall not be impeachable for waste he shall not plead this in Bar but shall have an Action of Covenant thereupon And Brudnell put this case That if I grant to one against whom I have cause of Action that I will not sue him within a year this is not any suspension of the Action Vpon which case it is to be observed that I may sue and the other is put to his Action of Covenant And the Plea is first insufficient because he pleads that the Plaintiffs nor any of them were damnified by reason of the Bond in the Declaration or by reason of any of the aforesaid Writings obligatory in the said Indenture specified but he does not answer to the damnification by reason of the 500 l. to be payd to Elizabeth the daughter which is the principal matter to be done by the Defendant for the defeasance and in truth this Portion was due and not payd before this Suit begun The Defendant did aver that the several days of payment limited by the Indenture are not incurred and there is not any day limited for the payment of 500 l. and the truth was that it is payable at the time of the marriage of Elizabeth the daughter but this is not limited by the Indenture nor any time for the payment thereof and therefore this a verment is not good The Indenture of the Defeasance is if the Defendant shall pay the 500 l. or procure to the Plaintiff Elizabeth sufficent discharge for the same and shall provide fit maintenance for Elizabeth the daughter Whereupon I conceive that the Defendant ought to pay 500 l. and provide maintenance for the daughter or otherwise that he should procure a discharge from the Plaintiff Elizabeth and shall also provide maintenance for the daughter for her maintenance is as necessary if the mony be payd as it will be if the discharge be procured And the Defendant hath made no answer to the providing of maintenance Judgment And Michaelm 15 Jacob. Iudgment by all the Court was given for the Plaintiff Rot. 590. Trinit 16 Jacob. Margaret Evans against Wilkins IN an Action on the Case for that the Plaintiff the 12 September 15 Jacob. did retain the Defendant to be her Shepherd c. and that the Defendant in consideration of 6 d. to him payd by the Plaintiff and of 33 s. 4 d. of his Sallery to be payd to him for a year and in consideration that the Plaintiff did assume to pay the 33 s. 4 d. to the Defendant and to finde him meat drink and lodging for the said year and to permit the Defendant to have Pasture for twelve Sheep with the Sheep of the Plaintiff Did assume to serve the Plaintiff as a Shepherd for one year from Michaelmas next c. and to keep her Sheep To which the Plaintiff giving credit did not retain any other Shepherd and the Plaintiff did aver that she was ready to pay the Defendant the said 33 s. 4 d. and to provide him meat c. and to permit him to have Pasture for twelve Sheep with the Sheep of the Plaintiff yet the Defendant did not feed the Sheep of the Plaintiff although required the 4 Octob. 15 Jacob. whereby many of her Sheep dyed ad damnum 40 l. The Defendant pleaded the Statute of the 5 Elizab. whereby it is enacted That the Justices of Peace of every County or the greater part of them then resident in the County and also the Sheriff if it may be and every Major Bayly or other chief Officer of any City or Town Corporate in which there shall be any Justice of Peace within the limits of the said Town before the tenth of Iune next coming and afterwards shall yearly at every general Sessions first held and to be kept after Easter or any convenient time after Easter shall meet together and after such meeting shall call
for a year rendering forty shillings Rent at Michaelmas and before the Feast does release to the Lessee all Actions yet after the Feast he shall have an Action of Debt for non-payment of the forty shillings notwithstanding the Release And 40 of Ed. 3. 48. Hillary By such Release to the Conusor of a Statute-Merchant before the day of payment the Conusee shall be barred of his Action because that the Duty is always in demand yet if he release all his right in the Land it is no Bar 25 Assis 7. And Althams Case Cokes Rep. 153. By a Release of all Demands not onely all Demands but also all causes of Demands are released And there are two manners of Demands viz In Deed and in Law In Deed As in every Praecipe quod reddat there is an express Demand In Law As in every Entry in Land Distress for Rent taking and seising of goods and the like acts in Pais which may be done without words are Demands in Law And as a Release of Suits is more large and beneficial then a Release of Complaints or Actions so a Release of Demands is more large and beneficial then any of them for by that is released all those things that by the others are released and more for thereby all Freeholds and Inheritances are released as in 34 H. 8. Releases 90. 6. He who does release all Demands does exclude himself of all Entries Actions and Seisures And Littl. 170. By the Release of all Demands Warranty is released and yet that is Executory and the reason hereof is that by the Release of Demands all the means remedies and causes that any hath to Lands Tenements Goods or Chattels are extinct and by consequence the right and interest in all of them And in 40 Ed. 3. 22. It is debated there whether a Release of all Demands by the Lord to the Tenant to hold onely by Rent and Fealty shall bar the Lord to demand reasonable ayd to marry his Daughter but it was agreed there that such Release shall bar the Lord of his Rent for as it is there said that is always in demand And 13 R. 2. Avowry 89. One gives Land in Tayl to hold by Rent Homage and Fealty for all Services and Demands this does discharge the Tenant of Relief but 18 Ed. 3. 26. contrarium tenetur And 7 Ed. 2. Avowry 211. Suit at a Leet by reason of Residency is not discharged by a Feoffment to hold by Rent for all Services and Demands for this service is not in respect of the Land but of residency of the person And 14 H. 4. 2. Gilbert de Clare Earl of Glocester before the Statute of Quia Emptores Terrarum did give Land parcel of the Honor of Glocester to hold of him as of the Honor to hold by Homage Fealty and Rent for all Services and Demands And after long argument it was agreed and hereby the Lord was excluded to have a Fine for alienation which otherwise was due from every Tenant of the Honor. And as the Fine was discharged there by the Feoffment so it might have been by Release of all Demands And the whole Court agreed Judicium that by this Release of all Demands the Rent is released and so the Plaintiff ought to be barred and so Pasch 16 Jacob. Judgment was given accordingly Hillar 13 Jacob. Southern against How IN an Action on the Case for that the Defendant the first of April 5 Jacob. was possest de quibusdam Jocalibus artificialibus contrefectis Anglice artificial and counterfeit Iewels viz. two Carcanets one pair of Ear-rings one pair of Pendants and one Coronet as of his proper goods and the Defendant there and then knowing the said Iewels to be artificial and counterfeit and fraudulently intending to sell them for true and perfect Iewels there and then did deliver them to one William Sadock his servant to whom at that time the said Iewels were known to be counterfeit and artificial and did command the said William to transport the said Iewels beyond the Seas into Barbary where the Defendant well knew that the Plaintiff was residing and did further command the said William that he should conceal the counterfeitness and falsness of the said Iewels and that after his arrival he should repair to the Plaintiff and shew him the said Iewels for good and true Iewels and there require the Plaintiff to sell the said Iewels for good and true Iewels for the Defendant to the King of Barbary or to any other that would buy them and that he should receive a price for them as if they were good and true Iewels That the 20 of April 5 Jacob. the said William did sail from London to Barbary and there the 22 June 5 Jacob. arrived and did then repair to the Plaintiff and knowing the said Iewels to be artificial and counterfeit did shew them to the Plaintiff for good and true Iewels and there and then did require the Plaintiff to sell them for good and true Iewels to Mully Sydan then King of Barbary and there then did affirm to the Plaintiff that the said Iewels were worth in value 14400 Dunces of Barbary Mony amounting to 810 l. of English Mony And the Plaintiff not suspecting the said Iewels to be counterfeit but conceiving them to be good and true did receive them of the said William and afterwards scil the 22 of August 5 Jacob. did offer them to the said King of Barbary as good and true Iewels and there and then did procure the said King to buy the said Iewels not being of the value of 3000 Ounces of Barbary Mony amounting to 168 l. 15 s. English for 14400 Ounces of Barbary Mony amounting to 810 l. which mony the Plaintiff the 22 of August 5 Jacob. received of the said King for the said Iewels for the Defendant and did pay the said sum then there to the said William for the Defendant and the said William immediately after the receit thereof did secretly withdraw himself out of Barbary and did return into England to the Defendant with the said sum and the first of October 5 Jacob. did pay the same to the Defendant That the 30 of May 6 Jac. the said King perceiving the said Iewels to be counterfeit caused the Plaintiff to be arrested and imprisoned for them and retained him in prison three months and until the Plaintiff out of his proper goods did repay to the said King the said 14400 Ounces of Barbary Mony That the first of October 6 Jac. the Plaintiff gave notice to the Defendant of the repair of the said William to him and of all the premisses and requested him to pay to the Plaintiff the said sum which yet he hath not payd ad damnum 2000 Marks The Defendant pleaded Not guilty The Iury found that the first of April 5 Jac. the Defendant was possest of the said Iewels and knowing them to be artificial and counterfeit and intending fraudulently for good and true Iewels
infeoff another of all the Lands whereof my Father died seised in an Action agâ—inst me I ought to set forth the certainty of the Land whereof he died seised And although the Executor does represent the person of the Testator yet the Act of the Executor is not the Act of the Testator not like to the Case of an Attorney 32. Ed. 3. Bar 264. If one be bound to enfeoff another it is sufficient if the Attorney be ready to make the Feoffment and so in the 19. H. 6. the same Law to confesse an Action but when an Executor does an Aâ—â— for the Testâ—tor it is otherwise as if the Executor sell Land it must be so pleaded for a dead person cannot sell Land And afterwards the Plaintiff discontinued his Suit Hillar 13. Jac. Norris Plaintiff against Henry Baker and Elizabeth Baker Defendants IN an Action of Trespasse for that the Defendants the 28. Octob. 13. Jac. by force and armes c. upon one Thomas Davis and Nicholas James Servants and Workmen of the Plaintiff did make an assaâ—â—t and them there labouring in the service of the Plaintiff did wound c. whereby the Plaintiffs lost their Service to his damage of forty pounds c. The Defendants as to the forme and according did plead not guilty whereupon issue was joyned And as to the residue of the Trespasse they say that at the time of the Trespasse the said Henry was and yet is possessed of an ancient House with the appurtenances in Worcester for divers years to come the which house doth joyn to a void peice of land in Worcester against the South and that at the time wherein c. and also time out of mind there were ancient Windows or Lights in and upon the South-side of the aforesaid house against the said peice of land through which the light did enter into the said house and the said Henry did enjoy great and necessary Easements and Commodities by reason of the open Ayre and light shining and entring into the said house by reason of the said Windows and Lights aforesaid and the said Thomas Davis and Nicholas Jones maliciously plotting and intending to deprive the said Henry of all the Easement and commodity of the aforesaid Windows and Lights Et Messuagium illud horrida tenebritate obscurare the said day and year did intend to build a house upon the said peice of land and did there then erect divers peices of Timber for the building of the said house which house if it had been built the said Henry should have lost the said easements and commodities wherefore the said Henry and the other Defendant who was his Servant by his commandment the said time wherein c. being in the said house did hinder the said Thomas Davis and Nicholas Jones from building the said house and the Defendants with a Staff did thrust down the said peices of Timber wherewith the said Thomas Davis and Nicholas Jones would have built the said house and did thrust and put away the said Thomas Davis and Nicholas Jones least they should build the said new house Prout eis bene licuit which is the same Assault and Battery of the said Thomas Davis and Nicholas Jones whereof the Plaintiffs complain Vpon which Plea the Plaintiffs demurred in Law And I conceive the Iudgment ought to be given for the Plaintiff Because the Defendants have made no answer to the first matter of the Action which is the losing of the Service for it is not shewne throughout the Bar that the said Davis and Jones did make the building as Servants to the Plaintiff or by his commandment and 2. H. 6. 13. In a Trespasse for cutting of Trees where the Defendant pleaded that the place where c. was the Freehold of I. S. who let the same to the Defendant at Will and adjudged no plea by the Court unlesse he had said by which he entred and cut the Trees and so justified the Action 3. H. 6. 54. In a Trespasse for beating of his Tenant the Defendant said he was his Servant and the Issue was whether he was his Servant or not 31. H. 6. 12. B. 5. H. 7. 3. 20. H. 7. 4. and 20. H. 7. 5. A Master shall not have an Action for beating of his Servant unlesse he saies Per quod servitium amisit The cause of Iustification is because the Servants did endeavour to erect a Building which is not issuable There is no cause of Iustification for how can the Defendant know that the building will be to his hurt or nusance to him untill the building be erected and if it be to his nusance he may abate the same by Law The Plea is double for first they set forth that they had Lights c. and then they alledge that the new house was built for the word if is wanting and 33. H. 6. 26. In an Action on the Case the Writ was good Cum ipse habeat quoddam Cheminum ratione tenurae c. the Defendant levavit murum per quod querens Cheminum habere non potest c. It was holden by Prisoit that the Writ was not good by reason of the Repugnancy And this Case was argued again by Barcley for the Defendant and by me for the Plaintiff Judgment Tr. 14. Jac. And all the Court held the Plea in Bar to be insufficient for which Iudgment was given for the Plaintiff Rot. 256. Hillar 13. Jacob. Edward Smith for the King and himself against Stephen Bointon IN an Information because the Defendant between the twentieth of June 12. Jac. and the fourth of July next after at Westminster in the County of Middlesex did buy ingrosse and obtain into his hands by buying and contracting of divers persons unknown three hundred quarters of Barley of the value each quarter of twenty pounds a hundred quarters of Beans of the value of twenty pounds every quarter Ad revendendum contra formam statuti c. whereupon an Action accrued to the King and the Informer to have of the Defendant foure hundred pounds viz. the value of the Barley and Beans whereof the Informer prayed a moyety c. The Defendant as to the Ingrosment between the twenty second of May 13. Jac. and the said fourth of July next after pleaded not guilty And as to the Ingrosment between the said twentieth day of July 12. Jac. and the said twenty second of May next after The Defendant saith that before the exhibiting of the said Information sc the twenty second of May 13. Jac. one Robert Beadow did exhibite an Information in the Exchequer for the King and himself against the Defendant because the Defendant between the first of June last and the day of the said Information did ingrosse five hundred quarters of Wheat of price every quarter thirty pounds five hundred quarters of Barley of price every quarter twenty pounds five hundred quarters of Oates of price every quarter twenty shillings and five hundred quarters of Beans and Pease
a County of it self but because it was made a County since the Teste of the Writ the Writ was adjudged to be good 3. These Ter-tenants are estopped to plead Non-tenure because that they with the residue at first did plead that John Chatterton was Tenant of parcel of the Land by which Plea they have taken upon themselves to be Tenants of the Land and therefore they cannot afterwards plead Non-tenure 41 Ed. 3. 4. In a Praecipe quod reddat against I. S. who pleaded to the Writ and the Writ abated whereupon the Writ did abate and a new Writ brought for Jornies Accompts against I. S. he shall not plead Ioyntenancy with the other because he hath admitted himself sole Tenant by the first Writ 33 H. 6. 3. In a Formedon against the Husband who pleaded Ioyntenancy with his wife for which the writ a bated and a new writ was purchased against the husband and wife who pleaded non-tenure and adjudged a good plea for the benefit of the wife but if the last writ had been against the husband only he could not have pleaded non-tenure 22 H. 6. 54. B. In a Praecipe quod reddat the Tenant pleaded Non-tenure the Demandant said that before he brought another Writ against the Tenant and I. S. who made default for which a Grand Cape was awarded upon which I. S. made default and the now Tenant said that he was sole Tenant and waged his Law of Non-summons which the Demandant did acknowledge whereupon the writ abated and this Writ purchased by Jornies Accounts and there it is argued if he shall have advantage of this because the first Writ did abate by his own default but it was agreed that if he could have such advantage the Tenant shall be estopped to plead Non-tenure and adjudged that the Tenant shall answer 42 Ed. 3. 16. In a Praecipe quod reddat one took the severall Tenancy on his part and the other of the other part and they were estopped because that a former proces was against them and others and they took the entire Tenancy upon them without that that the others had any thing and did gage their Law of Non-summons wherefore the first writ did abate and this writ purchased by Journies Accounts And so in our Case when all the Tenants have pleaded that I. C. was Tenant of parcell not named in the returne they have taken the Tenancy upon them and therefore they cannot afterwards plead Non-tenure And now the Writ being maintainable notwithstanding these exceptions Part. 2 it is to be considered whether there be any error in the Recovery or not And I conceive clearly that the appearance of the Wife within age by Attorney is Error for by the Rule of the Common Law in every Praecipe quod reddat whereby Land is demanded if the Tenant appear he ought to appear either in person or by one lawfully authorized by him and that is the reason that if Iudgment be given against one upon an appearance by the Attorney where the Attorney had no Warrant to appear that this is Error untill it be remedied in case where a Verdict is past by the Statute of 32 of H. 8. of Repleader but if the Iudgment be given upon default or demurrer or upon a Verdict and no Warranty by him who recovered this is not Warranted by the Statute Dyer 93. 20 Eliz. Dyer 363. and the reason is because that the Land or thing in demand is lost or gained by one who had no Warranty and then the Rule of Law is that an Infant shall not appeare by Attorney and 1 H. 5. 6. adjudged that an Infant cannot be Attorney for another and so therefore it is there said that he cannot appear by an Attorney 22 H. 6. 31. b. There by Newton if an Infant sue by an Attorney it is Error And the Law in this case stands with great reason for the Warrant of Attorney is made by the Infant which although it be sufficient when it is of full age yet it shall be dangerous to permit Infants to lose their Land by their Attorney while they have not discretion enough to choose such who shall be faithfull to them and therefore the Law hath made better provision for them to wit that they shall appear by their Gardian admitted and allowed by the Court so that in regard of the imbecility of the Infant the Court makes choyce of a sufficient trusty person to plead and defend their cause Nat. Br. 27 H. 1. an Infant shall sue by his next friend but if he be Defendant in any Action he shall make defence by his Guardian and not by his next of kin and the Court does assigne a Guardian for an Infant who is Defendant and that is commonly one of the Officers of the Court and in 22 H. 6. 31. where Hungerford and his Wife brought an Action of Trespasse for taking of their Villain being in their Service The Defendant pleaded that he was free c. and as to the losing of the Service that he was not retained and found for the Plaintiff and severall damages viz. for the taking of nine and twenty pounds and for the losing of the Service twenty shillings And it was argued neither Iudgment should be entred because the Retainer was not found And after Markham moved that the Plaintiffs being within age did appear by their Attorney and did declare that all the proces continued by the Attorney whereas it ought to have been by their Guardian so that all was Error And Newton said that if it were so there was good reason to have a Writ of Error and after the Plaintiffs released the twenty shillings and had Iudgment of the other So that an Attorney being alwaies made by the party ought to be therefore made by one of ability to give such Authority which ability cannot be in an Infant for all Authorities made by an Infant â—re utterly void And that the appearance of an Infant by Attorney in any Action is Error does appear by the said Book if the 22 H. 6. 31. 9 Eliz. Dyer 262. b. Object But it may be objected that the Husband in this case is of full age and therefore he may make an Attorney for himself and his Wife Answer But I answer that the Law is not so for the Rule of Law is that the Husband cannot give away or lose the Inheritants of his Wife but it must be given or lost by her her self and by her own act and therefore if the Inheritance in this case being to the Wife she is the principle and only to be taken notice of and she ought to appear in such manner as the Law hath appointed in regard of her nonage 14 Ed. 3. Age 88. In a Cessavit against the Husband and Wife the Husband did appear by an Attorney and the Wife by her Guardian and upon suggestion that she was of full age the Guardian was hidden to bring her into Court to see whether she were
pursue their claim by entry or action within five years next after the Proclamations and saving such Action Right Title Claim and Interest as first Shall grow remain descend or come after the Fine and proclamations by force of any Gift in Tail or by any other course and matter had and made before the said Fine levied so as they pursue within five years c. By which it appears that nothing is saved to the strangers but rights actions and interests arising by force of any cause or matter before the Fine and therefore nothing is barred by the Statute but former rights for what ever right is barred as to the Privies is saved to the strangers so as they pursue their claim within c. Sir Richard Shuttleworths Case between Barton and Lever 37 Eliz. Tenant in Tail levied an erronious Fine with Proclamations and then as Vouchee did suffer an erronious Recovery and died the Issue brought a writ of Error to reverse the Fine the Defendant pleaded the recovery afterwards and the Plaintiff to maintain the writ did alledge a default in the Recovery whereby he conceived the same to be void but resolved that it was but voidable by a writ of Error and therefore so long as it was in force the Issue was barred to reverse the Fine And therefore it was agreed there that the Issue ought first to reverse the Recovery by writ of Error and then he may reverse the Fine And so in our Case if the Plaintiffs should be barred in the writ of Error by the Fine they shall be without remedy although that the Fine be erroneous as I conceive it to be for if they bring a writ of Error to reverse the Fine first the Recovery although it be erroneous will be a clear Bar to them as it is adjudged in the said Case of Burton and Lever 7 H. 4. 40. a. One brought a writ of Error to reverse an Outlawry the Attorney said he was outlawed at the Suit of another Hulls said there that he could not be received for when one is to adnull an Outlawry he shall not be disabled by another Outlawry although he be twenty â—imes outlawed for then it will follow that there shall be delay infinite 26 Ed. 3. 66. Tenant in ancient Demesne levies a Fine at the Common Law and after does levy another and the Queen being seignioresse of the Mannor did bring a Writ of deceit to reverse one of them she shal not be barred by the other especially by the first to reverse the second And as to the Warranty 2. Matter of the Bar. I conceive that it is no Bar for many reasons 1. Because Warranties do bind only Rights and Actions which are in esse at the time of the warranty made and not Rights and Actions which do accrue after the Warranty created but this Writ of Error is given to the Plaintiffs in respect of the erroneous Recovery which wâ—s suffered after the creation of the warranty and therefore the warranty is no Bar to the Plaintiffs to have this writ of Error 30 H. 8. Dyer 42. B. All the Iustices did agree that when a man does bind him and his Heirs to warranty they are not bound to warrant new Titles of any Actions accrued since the warranty but only such Actions as are in esse at the time of the warranty made 12 Assise 41. The Tenant in a Praecipe quod reddat made a Feoffment hanging the writ and after the Demandant had recovered by erroneous Iudgment notwithstanding that the Feoffment had excluded the Tenant from his Right to the Land yet this shall not exclude him from his writ of Error which is accrued to him since the Iudgment given after the Feoffment Vide 18 19 Eliz Dyer 353. But it may be objected that this warranty shall bind the Right of the Plaintiffs to the Land for although the Recovery be reversed Object yet the Plaintiffs shall be put to their Formedon to recover this Land in which they shall be bâ—rred by this warranty and so it shall be in vaine for them to reverse the recovery for by the warranty they shall be barred to have the Land I answer That notwithstanding the Collaterall warranty Answer yet a Right doth remain in the Plaintiffs which is bound by the warranty which Right is taken away from the Plaintiffs by this Recovery by which the Law would have given to them a Remedy which is by writ of Error to be restored to their Right for a collaterall warranty doth not extinguish the right of him who is bound by the warranty but only does bind the Right for the time that the warranty remains undefeated and this is proved by many Authorities 34 Ed. 3. Droit 29. If the Tenant in a writ of Right hath collaterall warranty of the Ancestor of the Demandant he ought to plead it and not to conclude upon the Right for if he conclude upon the Right it shall be found against him because the warranty doth not give or extinguish the Right but only binds it 43 Assise 44. A collaterall warranty may be defeated by a Deed of Defeasance made after the creation of the warranty by which it appears that the Right is not extinguished for if so it could not be revived by the Defeasance and with this agrees 43 Ed. 3. 20. Earle of Staffords Case 19 H. 6 59. B. Fortescue A collaterall warranty does not give Right for if Land be given to one and the Heirs Males of his body and he hath two Sons and doth alien and the collaterall Ancestor to the Son doth release with warranty to the Alinee and dies and the Donee dies now is the eldest Son barred but if he die without Issue Male leaving Issue a Daughter the younger Son shall not be barred by the warranty 24 H. 8. B. Formedon 18. If Tenant in Tail hath two Sons by severall venters and dies and the Ancestor collaterall of the elder Son doth release with warranty and dies without Issue and the elder Son dies without Issue the younger Son shall recover by a Formedon because he is not Heir to the warranty And Littleton 160. B. Tenant in Taile hath three Sons and discontinues the second Son Releases to the Discontinuee with warranty the Tenant in Taile and the second Son dies now is the eldest Son barred because the warranty is collaterall to him but if he die without Issue the younger may have a Formedon and shall not be barred by the warranty because that the warranty as to him is lineall and to this purpose is the 8. of Rich. 2. Warranties 101. By which Book it does appear that the Estate-tail is not extinct by the warranty for if it could be so it can never be revived again This Warranty is executed and determined for it was made to the Conusees against whom the Writ of Entry whereupon this Recovery was had was brought and they did vouch to Warranty Thomas Lea and Katherine his wife who made
But it may be objected That there is no place mentioned where the payment or acceptance was Answer I answer that it is not material for it is not issuable but onely evidence to prove the fraud which is the substance of the Plea and that is proved by the said Case of Turner And 42 Ed. 3. 14. Conspiracy shall be brought where it was done and not where the Indictment was And 44 Ed. 3. 31. Attachment upon a Prohibition lies where the summons is although the Plea be held in another County 1 H. 7. 15. B. Payment with Acquittance pleaded in an Action of Debt upon a Bond is not double because that acquittance onely is issuable and the payment is but evidence Then the Recognizance is no cause of the retaining the 100 l. as in Cook R. 5. Harrisons Case Green brought an Action of Debt upon a Bond of 40 l. against H. Administrator of Thomas Sydney the Defendant pleaded that the Intestate was bound in a Statute besides which he had no goods c. The Plaintiff replyed that there was an Indenture of Defeasance for performance of Covenants which hitherto were performed whereupon the Defendant demurred and it was adjudged against him for a Debt upon a Bond shall be payd before a Statute to perform Covenants when none of them then were nor perhaps ever shall be broken but are future and contingent things and therefore such possibilities which peradventure shall never happen shall not bar present and due Debts upon a Bond. And although the Condition of the Recognizance be to pay mony yet is it to be payd to a stranger and therefore it is not any Debt but the Debt is onely by the Recognizance Also it is not to be payd but upon a contingency to wit if the Infant comes to full age but if he dye before it shall never be payd 36 H. 8. Dyer 59. One devised 20 l. to his Daughter to be payd at her marriage or 21 years of age and she dyed before marriage yet it shall be payd 7 Ed. 4. 3. and 18. 36 H. 6. 9. Cook 9 Rep. fol. 108. In an Action of Debt against an Administratrix who pleaded Statutes and further that she had not sufficient c. The Plaintiff replyed that for one of the Statutes a lesser sum was accepted in satisfaction and as to the other that it was for performance of Covenants and that none was broken and the Defendant demurred and adjudged for the Plaintiff and that the general averment of payment and acceptance and that the Statute was for performance of Covenants was good because the Plaintiff was a stranger thereto And this case was argued again by me for the Plaintiff and by Crook for the Defendant Saturday the 24 of May Pasch 15 Jacob. at which day Mountague Doderidge and Haughton did agree that for the first matter Iudgment ought to be given for the Plaintiff but as to the last Mountague held for the Defendant but the other two on the contrary And Doderidge and Haughton agreed that the Plea of the Defendant was naught because he said that a Condition was annexed to the Recognizance and did not say that it was upon condition and Mountague replyed not Vide Com. Browning and Beestons Case 21 Ed. 4. 49. 28 H. 6. 3. Hillar 12 Jacob. Robinson against Greves Rot. 744. IN an Action of Trespass for that the Defendant the 6 of May 12 Jac. the House and several Closes of the Plaintiff did break and enter c. ad damnum c. The Defendant pleaded Not guilty The Iury found that the said Tenements were Copyhold parcel of the Mannor of Ecclesfield grantable time out of minde by the Lord or his Steward by Copy in Fee in Tayl or for life or years according to the Will of the Lord and according to the Custom of the Mannor And that before the Trespass Thomas Shercliff was seised in fee at the will of the Lord according to the custom c. And that the first of January 14 Elizab. by the hands of Nicolas Shercliff and Thomas Jepson two of the Customary Tenants Gilbert Earl of Shrewsbury then and yet being Lord of the said Mannor out of Court and according to the Custom of the said Mannor did surrender to the use of Nicolas Stanniland and his Heirs which Surrender at the next Court 11 Janua 40 Elizab. by the hands of the said N. S. and Tho. J. was delivered into the said Court and there by the homage of the said Court was presented and by William West then Steward was accepted and entered in the Rolls of the said Court and that a Copy of the Surrender under the hand of the said Steward was delivered to the said Nicolas Stanniland which Copy was found verbatim viz. Ad hanc curiam compertum est per homagium quod Tho. S. sursum reddidit ad usum N. St. haeredibus suis but they said that the said N. St. was no otherwise admitted By force of which the said Nicolas entered and the 6 Decemb. 1 Jac. out of Court by the hands of Thomas Jepson and Richard Shercliff did surrender according to the custom of the Mannor to the use of the said N. St. for life the remainder to William Stanniland and his Heirs which Surrender at the Court of the Mannor held the 17 May 14 Jac. was delivered into Court by the hands of the said Thomas Jepson and Robert Shercliff and was presented by the homage at the said Court and was there accepted and entered in the Roll by the Sheriff and that a Copy of the said Surrender under the hand of the Steward was delivered to the said N. St. which Copy was found verbatim in the said words with the former and found that there was no other admittance The sixth of November 2 Jacob. Nicolas St. dyed Thomas Shercliff entered at the Court 6 Maii 12 Jacob. did surrender to the use of the Plaintiff for ten years and payd his Fine and was admitted c. whereby the Plaintiff did enter upon whom the Defendant by the commandment of William Stanniland did enter and made the Trespass c. And so prayed the Opinion of the Court. And I conceive that the Plaintiff ought to have Iudgment And in this case are two matters considerable First if this Presentment of the Lord and the entry into the Roll and the delivery of a Copy entred by the Steward be any admittance or not And I conceive that it is no admittance For an admittance is a ceremony requisite to make a Copyhold Estate and is so necessary that before admittance he to whose use the Surrender is made hath no Estate as in Bracton 2. cap. 8. Si ipse ad alium transferre voluerit prius illud restituet domino vel servienti si dominus praesens non fuerit de manibus illorum fiat translatio ad alium c. And before admittance this is no perfect assurance but onely begins then as in Peryams Case Cook 5
defrauded for if no information be for the conversion within one year after or if the Convertor pay the penalty of 20 s. for the converting he may let it out to another And by pretence of the Defendants Councel he shall not be subject to penalty for the continuance But the Court agreed that he who made the conversion should be punished and so should every other occupyer of the Land who does not keep the Land in tillage Rot. 386. Michaelm 12 Jacob. Perryn against Audrey Barry IN a Writ of Error to reverse a Iudgment given in the Kings Bench for the said Audrey against the said Perryn in Debt upon a Bond of 100 l. made the 28 of April 5 Jacob. In which Action the said Perryn demanded Oyer of the said Bond and of the Condition which was That if the Defendant Iohn Perryn his Executors and Administrators should perform the Award of Thomas Clyff Roger Glover Robert Goodwin and Thomas Piborn Arbitrators as well for the said Perryn as the said Audrey Barry elected to Arbitrate of for and upon all and all manner of Actions cause and causes of Actions Suits Trespasses Debts Duties c. and all other demands whatsoever which between the said parties at any time until the date of the Obligation have been had moved or now depending so that the same Award c. of the said Arbitrators or any three of them of the premisses be made and given up in writing indented under their hands and seals on or before the last of May next that then the Obligation shall be voyd And the Defendant did plead that the said Arbitrators did not make any Award The Plaintiff did reply that the said Roger Glover Robert Goodwin and Thomas Piborn three of the said Arbitrators the 30 of May. fifth of King James did make their Award by writing indented That the Defendant should pay to the Plaintiff 57 l. viz. upon or before the 16 of June next 10 l. and the 29 of September next 17 l. and the 25 of Novemb. next 20 l. and the 25 of March next 10 l. And whereas the Defendant and Stephen Perryn were bound to the Plaintiff in 12 l. upon condition to pay 6 l. at certain days that the said Obligation should be to the Plaintiff in force as then it was and that she should have such benefit thereby as she might have had before and that the Plaintiff should acquit and save indemnified the Defendant from all Debts Duties and mony for which the Defendant with the Plaintiff was indebted or bound to Dingley Numan Clark Cater or any of them And that all Actions depending between the parties in any of the Kings Courts and all other Actions and causes of Action for any matter between them except the matters contained in the Arbitrement and the Obligation to perform the Award should cease c. And that if any controversie or doubt should happen between the parties for or about any word sentence or thing in the Arbitrement or of or touching the Award or any thing contained therein that the parties and their Executors shall perform such explanation and construction thereof as the said three Arbitrators should make in writing under their hands concerning the same And that the Plaintiff shall pay to George Write for drawing and ingrossing the said Arbitrement 6 s. 8 d. which Agreement the said three Arbitrators shall deliver to the parties the same day And although the Plaintiff did perform all yet the Defendant did not pay the 10 l. the 16 of June next And hereupon the Defendant demurred in Law and the Plaintiff joyned and Iudgment given for the Plaintiff whereupon the Defendant brought this Writ of Error And assigned the first Error because the submission was to four and Error 1 the Arbitrement was by three onely But all the Iustices and Barons did hold that the Agreement was well made notwithstanding for it shall be taken now to be a submission to four or any three of them and so was it agreed in the Kings Bench where this point hath been argued at the Bar oftentimes The second was that the Arbitrators did not make any Award for Error 2 the Bond of 12 l. in which the said Plaintiff and St. Perryn were bound to the now Defendant upon condition to pay 6 l. at certain days and the submission is conditional sc That the Award be made of all things c. and therefore they ought to have determined these matters For it may be that this was the principal cause why the Plaintiff did submit himself to the Award sc to be discharged of this Bond which perhaps was forfeited for not performing the condition with the penalty whereof he shall be now charged And although the Bond was made by the Plaintiff and another yet was it a cause of action depending between the Plaintiff and Defendant for she may sue him 2 R. 3. 18. b. If three men and another do refer themselves to an Arbitrement of all demands between them the Arbitrators may make an Award of all matters which the three had against the other joyntly and of each matter which every one of the three hath against the fourth and may award that every one of the three shall pay mony to the fourth Vide Comment 389. Chapmans Case 21 H. 7. 296. In debt by a woman as Executrix the Defendant said that I. S. her husband and the Defendant did refer themselves to Arbitrament who made an agreement and the husband dyed and the Court held that the debt of the woman as Executrix was extinct by this Arbitrement The clause that the now Defendant should acquit the Plaintiff of Error 3 all Debts wherein he was bound with the Defendant to Dingley c. is insufficient because there is no Christian name The breach is assigned for that the Defendant did not pay the 10 l. Error 4 upon the sixth day of June whereas the Award was that it should be payd upon or before the 16 day of June But all did agree that this was well assigned because that when it is alledged that it was not payd upon the 16 day it was not payd before the day The Arbitrators have awarded that the parties shall stand to their Error 5 Award for construction of the Arbitrement and of all things in the Award and of all matters concerning them for the future which is not in their power for all the Award ought to be made before the last of May. They award 6 s. 8 d. to be payd by Audrey to George Write for ingrossing Error 6 of the Award which is not within the submission 1. Because Write is a stranger 2. Because it is a thing agreed on after the submission Judgment And Hill 14 Jac. The Iudgment was affirmed and they agreed the last agreement to be void but that was not materiall for the Award was void only for that and good for the residue Rot. 100. Hillar 13 Jacob. Mande against French IN