grounded upon a promise made in this manner Marry my Neice and when I come from London I will give you 100. l. and the Action was brought in this manner Videlicet in consideration that he would marry A. promised to pay the Plaintiff 100. l. after he returned from London when he was thereunto requested and for these words when he was thereunto requested the Action was maintainable HInch versus Heald Trin. 17. Jac. rotulo Action upon the case for these words Videlicet He is a Witch and hath bewitched me and the Court held the Action would not lie for he might bewitch him by fair words or fair looks GReen versus Harrington Trin. 17. Jac. routlo 953. The Plaintiff declares that the Defendant such a Day was indebted to the Plaintiff in 10. l. for Rent due to the Plaintiff for one year ended at Michaelmas then last past for divers Lands in H. demised to the Defendant by the Plaintiff the Defendant in consideration thereof promised to pay the Plaintiff the said 10. l. when he should be thereunto requested The Defendant pleads Non assumpsit and after Verdict given for the Plaintiff it was moved in Arrest of Judgement that there was no consideration to maintain the Action because an Action of Debt lay upon the first Contract being in the realty for upon an implied promise no Action will lie where it is in the realty except there be a special promise made upon a collateral cause Videlicet If the Plaintiff had threatned suit for the said 10. l. and the Defendant in consideration that he would forbear to sue promises to pay c. and the like for if a man be bound in a Bond to pay money and the Day past now an Action of the case will not lie for that money except there be a collateral promise and so in the like cases and Judgement was given against the Plaintiff Michaelmas 17. Jac. It was adjudged in the Kings Bench in an Action upon the case Videlicet whereas the Defendant was indebted to the Plaintiff in 10. l. without expressing the cause for which the Debt grew due the Defendant in consideration that the Plaintiff at the special instance and request of the Defendant then and there had given Day to the Defendant untill a time to come to pay the money the Defendant promised to pay the money that the Action was maintainable without expressing the cause for which the Debt was Hill 17. Jac. rotulo 2722. Action of the case brought for these words Thou art a perjured Knave and I will make thee wear Papers for it the Defendant justifies the words and shews that the Plaintff was a Church-warden and took his Oath to exercise that Office and whereas one Article made was that he should present whether the Church-yard was repaired or no and he knowing it did not present it Action of the case brought for these words Thou art a scurvy perjured Knave the Action will lie WIlson versus Sheriffs of London Hill 17. Jac. rotulo 3069. The Plaintiffs declare upon an escape made upon a Capias ad respondendum after the Defendant was arrested the Defendant pleads a Custome in London that the Maior and Sheriffs of London have used to inlarge Prisoners that were arrested in coming and returning from their Courts having Causes there depending and set forth a Plaint in London against the Defendant and that he was arrested and appeared and pleaded to Issue and as he was coming to the Court to defend that Action he was arrested as is supposed in the Action upon the case brought against the Sheriffs and shew that he was brought to the Court and inlarged by the Court and the Court held that if a man were arrested in the face of the Court the Court might discharge him otherwise not PAin versus Newlin Mich. 16. Jac. rotulo 3042. Action upon the case brought upon a promise and Judgement by Nihil dicit and at the return of the Writ to inquire the Defendant moved in Arrest of Judgement and shewed that the Day of the promise was supposed in the inquiry to be Anno Domini 1614. And in the Declaration it was made 1617. and for that variance Judgement was stayed BElcher versus Hudson Hill 6. Iac. rotulo 132. The Plaintiff declares that in consideration that the Plaintiff at the request of the Defendant would marry one T. M. his familiar Freind the Defendant promised to pay the Plaintiff yearly after the Decease of the said T. M. 40. s. for her maintenance and the Plaintiff averrs the Marriage and that she survived The Defendant pleads that the said T. M. in his life time after the Marriage c. did release to the Defendant all Actions as well real as personal and all Demands and Challenges whatsoever from the beginning of the World unto the Date thereof to which Plea the Plaintiff demurrs and adjudged a naughty Plea BOx an Attourney against Barnaby Action upon the case for these words George Box is a common maintainer of suits and a Champertor and a Plague of God consume him and I hope to see his Body rot upon the Earth like the Carkase of a Dog and I will have him thrown over the Bar next Term and I will give a Beech to make a Gallows to hang him and Judgement given for the Plaintiff for this word Champertor and no other Trin. 14. Iac. Action upon the case for these words She is an arrant Whore and had two Bastards in Ireland and Judgement by the whole Court that the words would not bear an Action YOrk versus Cecill Mich. 14. Iac. Action upon the case brought by A. Tanner for these words Thou art a bankrupt Knave and the Court held that the Action would not lie but Quaere Skaif versus Nelson Mich. 12. Iac. rotulo 1106. Action upon the case brought for words against Husband and Wife spoken by the Wife and Judgement was entered for the Plaintiff and in entering of the Judgement it was made Et praedicta E. being the Woman in misericordia which was naught for it should have been both the Husband and Wife in misericordia and after the Record was certified by Writ of Error Serjeant Richardson moved that it might be amended because the Judgement Papers were right and so it was ordered to be amended according SMails an Attourney versus Moor Hill Iac. rotulo 753. Action upon the case for the words He is a forging Knave and the Court held that the words were actionable for he alleadged in his Declaration that he was an Attourney of the Common Pleas and so being touched in his Profession the words would bear an Action and if a man said of a Bishop that he was a Papist the Action would lie because Religion is his Profession and so he is defamed STeward versus Bishop Trin. 14. Iac. rotulo 769. Action upon the case for these words James Steward meaning the Plaintiff is in
year to year the Defendant wages his Law and at the Day to wage his Law the Court refused to accept it for that he ought not to wage his Law for Wages yet if the Retainer were not for a year at least the Court seemed to be of opinion that he might wage his Law VErnon versus Onslow Pasch 12. Jac. rotulo 1047. Upon an Action brought upon a Bill for 80. l. the Defendant demands Oyer of the Bill was Pro octogesimis libris and to that the Defendant demurrs and Judgement for the Plaintiff Hutton cited the Case in Cooks 10. Rep. Rowlands Case And another in Mich. 44. 45. Eliz. rotulo 131. Proseptingentis libris and the Bond was Proseptungentis libris And another Mich. 11. Jac. upon a Bill for seventeen pounds and adjudged a good Bill YOung versus Melton Trin. 10. Jacobi rotulo 3434. An Action brought upon a Bond for performance of Covenants the Defendant pleads Conditions performed The Assignes the Breach for non-payment of Rent and pleads in this manner that in December he demised to the Defendant one Wine-Cellar c. for one year and if the Defendant would hold the Wine-Cellar for three years paying 40. l. yearly during the said terme and alleadges non-payment of the Rent of on Quarter in the first Year and the Defendant demurrs and the Court were of opinion that the reservation had reference as well to the first year as to the two years following and in that case Cook said that if a man demise c. reserving Rent to himself the Heir shall not have the Rent but if the Rent be reserved generally the Heir shall have it WHickstead versus Bradshaw Pasch 14. Jac. rotulo 2175. There was Judgement entred against the said B. and after the Bail of Bradshaw brought a Habeas Corpus to the Marshalsey Bradshaw being a Prisoner there to have his Body before the Judges of the Common Pleas to be committed in Execution in Discharge of the Bail but before the Returne of the Habeas Corpus the said Bradshaw had brought a Writ of Error returnable the Day following and when he came to be committed the Court doubted that their hands were tied by a Writ of Error by reason he could not be committed upon the Judgement and yet they would have discharged the Bail if they knew which way therefore Quaere GErrard al. versus Dannet Hill 9. Jac. rotulo 2015. Judgement was had upon a Bond by Non sum inform and a Writ of Error brought for that the Christian name of the Defendant Attorney was left out in the Imparlance Roll but it was in the Roll whereupon the Judgement was entred and a Warrant of Attorney entred accordingly and the Court was moved that it might be put into the Imparlance Roll which was granted upon sight of the Judgement Roll and Warrant of Attorney entred If a man be bound by Award to pay one 20. s. And I at the Day offer it and he refuseth it or comes not to receive it I must plead that I was ready to pay and shall not plead an Vncore prist because it is upon a collateral matter An Obligation was made to pay 10. l. 8. s. and eight not saying Pence or any thing else An Action of Debt lieth for the 10. l. 8. s. WIlde versus Vinor Trin. 7. Jac. rotulo 1629 or 2629. Debt upon an Obligation to perform an Award The Defendant pleads that the Arbitrators made no Award the Plaintiff replies that the Defendant by Writing did revoke and null the Authority of the Arbitrators Foster held the Bond was forfeited although he might revoke the Plea was that he did discharge the Arbitrators against the form of the Condition My Lord Cook held that the Power was countermandable if the Submission be by Writing the Countermand must be by Writing if by word I may countermand by word If two binde themselves one cannot countermand alone If Obligor or Obligee disable by their own Act to make the Condition void the Bond is single 14 H. 7. If I am bound to infeoff A. and I marry her before the Day the Bond is forfeited 18 E. 4. 18. 20. the great doubt was because no express notice but notice was implied And the Bond forfeited because he did not stand to it Judgement for the Plaintiff PArker versus Rennaday Trin. 6. Jac. Action brought upon a Bond for 60. l. the Bond was in Italian in these words In cessanta libris and held a good Bond for 60. l. O. K. ux ejus Admin versus Needham who was bound to the Intestate in a Bond and pleads that Administration of the Intestates Goods was committed to him by the Archbishop the Intestate having Bona not Abilia before it was committed to the Plaintiffs Wife The Plaintiff replies that the Administration committed to the Defendant was revoked and made void to which the Defendant demurrs pretending his Administration to be a Release in Law but it was otherwise adjudged But if the Debtor were made Executor then the Debt is released like unto an Administrator during the minority he may do all for the good of the Infants but nothing to their prejudice if an Executor marry the Debtor it is no Release in Law Judgement for the Plaintiff by the whole Court LAwrance and Althams case if I have no means to gain my Right but by Action if I release my Action I release the thing it selfe because I release my means to come to my Right If I release all Actions I may have Jus prosequendi A Release made by the Testator shall be no Barr to the Executor to bring a Writ of Detinue because it continues a wrong still to the Executor A Bond to pay Money at Michaelmas may be released because it is a Debt otherwise it is of a Rent reserved by Lease the like it is of a single Bill to pay Money at four Dayes if the first Day be broken no Action untill all the Dayes be past but in case of a Lease after the first Day Debt doth lie in the first it is a Debt but not in the other Quarrels Controversies and Debates are all one that is all Causes of Quarrels Controversies and Debates are more large then Actions and Suits are more then q. c. d. and by Release of Suits Executions are gone Release of Duties Executions are gone neither Fraud nor Might can take a Title without Right Demand is most large and by it Rents are gone Executions gone Incidents gone as Releif Warranties gone all Causes of Demand gone Actions and a mans Right gone When a condition is to arbitrate of all matters between c. there if the matters be not made known to the Arbitrators they are not bound to arbitrate more then they know for if it appear to the Court that all matters committed to the arbitrators be not arbitrated the Award is void but if the submission be of all matters between c. so that now all must be
of the Statute are to have and injoy and Winch said it was within the Statute and so the Office of a Cursitor was within that Statute Exception was taken to an Action of Debt brought upon the Statute of E. 6. for not setting out of Tithes because the certainty of Loads of Corn were not expressed but it was held good notwithstanding HAwes versus Birch Hill 12. Jacobi rotulo 1843. An Action of Debt brought upon a Bond of 6. l. for the payment of 3. l. upon the 16. of April The Defendant pleads that an Estranger at the Defendants request the said 16. of April made an Obligation to the Plaintiff in lieu of the first Debt and adjudged naught by the whole Court for one thing in Action cannot be a satisfaction for another thing in Action but this being done by a stranger is good by no means Pasch 12. Jacobi The Court was of opinion that if Money be tendred and none ready to receive it and afterwards he to whom the Money is payable demands the Money and the other refuse to pay and afterwards an Action is brought and a Tender pleaded the Court held that the Defendant should pay Damages from the time that the Money was demanded FLeet versus Harrison Hill 13. Jac. rotulo 841. An Action of Debt brought against two Defendants one of them pleads Nil debet per patriam and the other lets a Judgement go by Default and he that waged his Law at the Day appointed performed it and Judgement that the Plaintiff should take nothing by his Writ for a Respectuatur of the Judgement was entred untill the other had done his Law WIlliamson versus Spark Mich. 13. Jac. rotulo 3511. Upon a cire facias brought against the Bail upon an Attachment of Priviledge The Defendant pleads a Release made after the Verdict and before Judgement which was before the Recognisance was forfeited and if the Recognisee may release before the Damages are ascertained or no was the Question and it seemed he might An Action of Debt brought against a Baker for a Fine imposed on him in a Court Leet and an Exception was taken because it was not alleadged that he sold Bread against the Assise of Bread made to sell for a man may make and bake Bread for his own use under the Assise limited BAcon versus Pain Trin. 14. Jac. An Action of Debt brought and declare that such a Day and Year the Defendant was a Brewer and for one Year then next following and that the Defendant the said Day at K. bought of the Plaintiff the fourth part of the Grains that the Plaintiff that Year next following should make in brewing for 3. l. to be paid upon Request The Defendant pleads that he ought him nothing and after a Triall an Exception was taken to the Declaration because the Plaintiff did not aver that he made Grains in that Year LOrd versus Huxly An Action of Debt brought on a Judgement thereupon and the Defendant taken in Execution upon that Judgement and afterwards the Plaintiff became Felo dese by which the Almoner seised of all his Goods and afterwards the Almoner would have acknowledged satisfaction of the Debt and Damages in that Judgement and doubted that he could not SAwyer versus Crompton Hill 14. Jac. rotulo The Plaintiff brought an Action of Debt for Costs given before the Judges of the Marshalsey newly erected 9 Jac. by Letters Patents of the same King within the Virge And the Plaintiff declared that whereas at the Court of the said King for the Houshold held at S. in S. within the Virge of the Houshold then at Whitehall such a Day and Year before T. B. Knight Marshall c. and F. B. c. Judges of the said Court to hear and determine all Pleas personal within the Virge between Persons not being of the Houshold arising by vertue of Letters Patents bearing Date such a Day and Year in due manner made came c. and the Court held a repugnancy in the Count and the whole Court against the Plaintiff If it had been brought upon the ancient Court it must be between two of the Houshold and they held that cost lay and the Exception was because the Plaintiff had not shewed the Grant to hold the Court. If a Bond be made to one and he doth not say in the Bond that it shall be paid to the Obligee in this case the Plaintiff must shew that it is to be paid to him though not expressed in the Bond. HOnne Executor of R. Hutton and E. May Pasch 40. Eliz. rotulo 433. An Action of Debt brought upon an Obligation with a Condition that the above bound T. G. or his Heirs do or shall at any time before the Purification of the blessed Virgin which shall be in the year 1596. according to the Custome of the Mannour c. Surrender into the hands of the Lord of the same Mannour for the time being all those c. to the use of the said R. Hutton his Heirs and Assignes for ever in such wise as the said R. Hutton his Heirs and Assignes shall or lawfully may by the custome of the Mannour be admitted c. or if after such Admittance the Premises shall be recovered against the said Rich. his Heirs or Assignes by one W. K. within four years then if he shall pay upon notice c. The Defendant pleads that the Plaintiff ought not to have his Action because the said R. Hutton after the making of the Bond and before the said Feast of the Purification which was in the year 1696. to wit the sixth of October 38 Eliz. at B. died The Plaintiff demurs and Judgement for the Plaintiff If one be indebted to one and he dieth intestate and after his Death Administration is committed to the Debtor this is no Release of the Debt If he marry the Executrix of the Debtee and the Executrix dieth the Husband shall be charged with the Debt after her Death VAughan versus Chambers Trin. 20. Eliz. rotulo 145. An Action of Debt brought upon a Bond the Defendant pleads the Statute of Usury and shews a corrupt Agreement for Money lent in the year 32. to be paid in 33. and afterwards in 35. a new Bond given for part of the first summ and it was pretended that this Bond was void but it was adjudged because the first Bond was no Corruption the later should not be LEech Attorney versus Phillips Executor of Phillips rotulo 3415. An Action of Debt brought for soliciting a Cause in the upper Bench and it was adjudged by the whole Court that an Action of Debt for Solicitors Fees would not lie but ought to bring an Action of the Case and afterwards the Court held an Action of the Case would not lie PAsch 12. Jac. Grove versus Jourdain An Action of Debt brought against an Administrator who pleads that the intestate was indebted to him
not to the age of the Daughter for the age of the Daughter shall be intended to be set down for the receit of her legacy of forty pounds and for no other purpose and the Defendant within the time in which the Rent demanded is supposed to be due had not determined his Will as appears by the Verdict but Fennor and W. said that by the Verdict that the Defendant entred by force of the lease and occupied the land at the time comprised in the Declaration and more and that the Tenant at will cannot determine his will within a little time before the year end for that would prove very mischeivous to the lessor that his Tenant at will should determine his will within the year and refuse to occupy the land twenty dayes before the year end and in 21 H. 7. Crooks Reports it appears that a Lessee at will cannot determine his will within the year to the prejudice of the Lessor but that he shall answer the whole Rent to the Lessor but note it appeared that the Lessee at will was expulsed by the Plaintif that was Lessor and no other thing although done by his agreement can determine the Lease against the Lessor for it is Covin if the Lessee be not privy and acquainted with it which was granted by the whole Court and all of them agreed in the Title against the Plaintif but as the Reporter affirmed Popham was absent and hearing the Case was of opinion that the Plaintif had an interest by the words of the will JEffry versus Guy Mich. 3. Jacobi An Action of Debt brought upon an Obligation with Condition that if Jeffry the Defendant perform all Covenants in such an Indenture that then c. and one Covenant was that he should permit Guy the Plaintiffe from time to time to come and see if the House Leased by Guy and K. his Wife were in repair the Case was thus J. Bill and K. his Wife were Tenants in Tail of a house and had Issue J. B. dies K. marries Guy the Plaintiffe and they two make a Lease by Indenture to Jeffry for twenty years yeelding and paying to them and their Heirs three pounds Rent by the year with the Covenant as aforesaid Jeffry pleads in Barr the former intail and the death of R. and that VV. the Issue in Tail such a day entred before which Entry the Condition was not broken Guy replies that William came with him upon the Land to see if reparations c. and traverses the Entry of William in manner and form prout c. and Issue joyned upon the traverse and found for the Plaintiffe and Judgement given in the common Pleas upon which Judgement Jeffry brought Writ of Error in the Kings Bench and Judgement affirmed there but it was assigned for Error the Jury had not assigned any breach of Covenant in Jeffry and so had showed no cause of action but the Court held he need not in this Case for by the speciall Issue tendred by Jeffry the Plaintiffe was inforced one speciall replication to that point tendred and the Plaintiffe could not proceed error and it is not like the Case of an arbitrement wherein Debt upon an Obligation to perform the award the Defendant pleads nullum fecer arbitrium then the Defenâ—… in his replication ought to set forth the award and assign his breach because the Defendants Plea is generall but if in such Case the Defendant should plead a release of all demands after the Arbi-Arbitrement by which he offers a special point in Issue there it suffices if the Plaintiff answers to the Release or other special matter alleadged by the Defendant without assigning any Breach so in this Case the special Plea of the Defendant had disabled the Plaintiff that he could not assign any Breach of Covenants but of necessity ought to answer to the special matter alleadged RAstell versus Draper Mich. 3. Jacobi An Action of Debt brought for nine and thirty pounds the Plaintiff declares that the first of May primo Iacobi sold to the Defendant twenty Northern Clothes for sixty pounds Flemish Money to be paid upon Request which sixty pounds Flemish Money amount to nine and thirty pounds English Money and that the Defendant though often requested had not paid the nine and thirty pounds to his Damages of c. The Defendant pleads Nil debet per patriam and found for the Plaintiff and moved in Arrest of Judgement that the Plaintiff should have demanded the summ according to the Contract which was for sixty pounds Flemish and to have shewed that it amounts to nine and thirty pounds English but the whole Court against it for the Debt ought to be demanded by a name known and the Judges are not skilled in Flemish Money and also when the Plaintiff hath his Judgement he could not have his Execution by that name for the Sheriff cannot tell how to levy the Money in Flemish and also it is made good by the Verdict for the Jury have found the Debt demanded to wit nine and thirty pounds But if the Contract had been for so many Ounces of Flemish Money or a Barr of Silver and Gold now it cannot be demanded by the name of twenty pounds or such a summ which is not Coin nor used in Trade or Merchandise but in such Case must have a Writ of Detinue and in that recover the thing or the value and so in the Book of Entries fol. 157. is the President where Debt was brought upon two severall Obligations and demands eight and twenty pounds and declares severally that by one Obligation he owed eight and twenty pounds of Flemish Money and 34 H. 6. 12. 9 E. 4. 46. But note in that Case the Plaintiff if he would might have declared in the Detinet and it had been good ROlles versus Osborn Mich. 3. Jac. The Plaintiff brought an Action of Debt against the Defendant upon a Bond of a thousand pounds and Serjeant Nichols moved the Court for the Defendant and shewed that the Plaintiff and Defendant were obliged each to other in a thousand pounds a peice that they should intermarry before such a Day and both their Obligations were forfeited and each of them sued the other and the Defendant prayed that common Bail might be accepted of her and she would accept of common Bail of the Plaintiff and the Court held it reasonable but said if they would marry both their Bonds might be saved BArneshurst versus Yelverton Hill 3. Jacobi The Plaintiff as Administrator of I. S. brought an Action of Debt against the Defendant upon a Bond and obtained a Judgement and afterwards the Administration is revoked yet notwithstanding the Plaintiff proceeded and took the Defendant in Execution and upon a Motion in the Court the Court held the Execution void and that the Defendant ought to be discharged because it issued out erroneously for the Letters of Administration being revoked the power of the Plaintiff is gone
to the breach if it had been assigned yet the Court ought to be satisfied that the Plaintiffe had good cause of Action to recover otherwise they should not give Judgement and although a Verdict is given for the Plaintiff yet this imperfection in the Replication is matter of substance and is not helped by the Statute by the opinion of the whole Court except Justice Williams BArwick versus Foster Mich. 7 Jacobi Action of Debt brought for Rent the cause was thus the Plaintiff leased certain Lands to the Defendant at Mich. 1 Jacobi for five years yielding and paying Rent at our Lady Day and Mich. yearly or within ten dayes after and for rent behind at the last Mich. the Plaintiff declares as for Rent due at the Feast of Saint Michael and prima facie it seemed to the whole Court but Crook that the Action would not ly but that the Rent for the last quarter was gone for it was not due at Michaelmas as the Plaintiff had declared for his own shewing it is payable and reserved at Michaelmas or within ten dayes after although the Lessee might pay it at Michaelmas Day yet it is not any Debt which lies in demand by any Action untill the ten dayes be passed and the reservation being the Lessors Act it shall be taken most strongly against himself and although the end of the Term is at Michaelmas before the ten dayes untill which time the Rent is not due and because at that time the Term is ended the Lessor shall loose his Rent as if a Lessor die before Michaelmas Day the Executor shall not have the Rent but the Heir by discent as incident to the Reversion and if the Lessee should pay the Rent to the Lessor at Michaelmas day and the Lessor should dye before the tenth Day his Heir being a Ward to the King the King shall have it again for of Right it ought not to be paid untill the tenth day according to the 44 E. 3. but this Case being moved again in Hillary Term Fleming Fennor and Yelverton changed their opinion and held that the Lessor should have the Rent for it was reserved yearly and the ten dayes shall be expounded to give liberty to the Lessee within the Term for his ease to protract the payment but because the ten dayes after the last Michaelmas are out of the Term rather then the Lessor shall loose his Rent yearly the Law rejects the last ten dayes MOlineux versus Molineux Hill 7 Jacobi An Action of Debt brought against Mo. upon an Obligation as Heir to his father the Defendant pleads that he hath nothing by discent but twenty Acres in D. in such a County the Plaintiff replies that the Defendant had more Land by discent in S. to wit so many Acres and upon this they are at Issue and found for the Defendant that he had nothing by discent in S. by reason of which the Plaintiff could recover and had his Judgement to have Execution of the twenty Acres in D. upon which Judgement in the Common Pleas the Defendant brought his Writ of Error and assigned for Error a discontinuance in the Record of the Plea from Easter Term to Michaelmas Term after and whether this were helped by the Statute of 18 Eliz. because it was after a Verdict was the question and adjudged to be out of the Statute and that it was Error for the Judgement was not grounded upon the Verdict but onely upon the confession of the Defendant of Assetts and the Verdict was nothing to the purpose but to make the Defendants confession more strong and therefore the Statute of the 18 of Eliz. is to be intended when the triall by Verdict is the means and cause of the Judgement which mark and therefore the Judgement was reversed the Law seems to be the same if the Plainiiff brings an Action of Debt for forty pounds and declares for twenty pounds upon a Bill and twenty pounds upon a non tenet and the Defendant confesses the Action as to the money borrowed and they are at issue as to the money demanded by the Bill which Passes also for the Plaintif by reason wherof he hath Judgement to recover the forty pounds demanded and the Damages assessed by the Jurors and Costs intire in which Case if there be a discontinuance upon the Roll it seems that all shall be reversed notwithstanding the verdict for the verdict is not the onely cause of the Judgement but the Confession also and the Costs assessed intirely for both but yet inquire of this It was adjudged by the whole Court that in those Cases where an Executor is Plaintiff touching things concerning the Testament and is non-suited or the verdict passes against him that he shall not pay Costs upon the new Statute of 4 Jac. for the Statute ought to have a reasonable intendment and it cannot be presumed to be any fault in the Executor who complains because he cannot have perfect notice of what his Testator did and so it was resolved also by all the Judges of the Common Pleas. GOodier versus Jounce Trin. 8 Jacobi Jounce recovered in the common Pleas a hundred and thirty pounds against Goodier in Crastino Animar 6 Jacobi and the eight and twentieth of November the same Term being the last Day of the Term the Plaintiff proved an Elegit against Goodier to the Sheriffs of London where the Action was laid and to the County Palatine of Lancaster returnable Crastino Purificationis after which was granted by the Court and by the Elegit to the County Palatine it appeared that it was grounded upon a Testat returned by the Sheriffs of London that Goodier had nothing in London where in truth they never made such a Return and upon that Elegit by a Jury impannelled before the Sheriff of Lancaster a Lease of Tithes was extended for fifty nine years then to come at the value of a hundred pounds which the Sheriff delivered to J. the Plaintiff as a Chattell of Goodiers for a hundred pounds and returned it and that Goodier had no more Goods c. and thereupon Goodier brought a Writ of Error in the upper Bench and assigned for Error that no Return was made by the Shetiffs of London nor filed in the common Pleas as was supposed in the Elegit and it was adjudged Error for although the Plaintiff might have an Elegit as he desired in the common Pleas immediately both into London and Lancashire but seeing he waived the benefit thereof and grounded his Execution upon a Testatum which was false it was Error in the Execution for as it appears 18 H. 6. 27. and 2 H. 6. 9. that a Testatum is grounded upon a former Return filed that the party had nothing in the County where the Action was brought and because it appeared upon Record that the prayer of the Elegits was made the eight and twentieth of November the last day of the Term and by the Testatum it is supposed
GOodwin against Welsh and Over Pasch 7. Jacobi The Plaintiff brought an Action of Trespass for severall things against the two Defendants and declares to his damage c. The Attorney for the Defendants pleads non sum informat and thereupon Judgment was given severally for the Plaintiff and Writs to inquire of the damages issued out and were returned and it was moved that the Writs should not be filed because the Plaintiff at the time of the inquiry did not prove that the goods did appertain to him but only proved the value of the goods for Serjeant Nichols took a difference between an Action confessed and non sum informat for in the first case the property of the goods is also confessed to be in the Plaintiff but it is not so in the other case for here Judgment passes without the privity of the Defendant and only for want of pleading as in the case of a nil dicit but by the whole Court it was all one And the Plaintiff is not bound to prove the property in any of the Cases and the reason is because the Writ commands only the value to be inquired of and no more and that only is the charge of the Jury And the whole Court were of opinion that they themselves as Judges if they would in such Case might assesse Damages without any Writ if they would trouble themselves for the Writ goes onely because it is known what Damages are but it is otherwise when not guilty is pleaded for then the Trespasse is denyed which must be proved and tryed by the Jury and there both the value and property come in proof and observe the Judgement is that he should recover and if upon a Writ of inquiry he should be bound to prove the property and fail thereof it would be in destruction of the first Judgement which cannot b. observe this TAilor against Markham Trin. 7 Jacobi An Action of Trespass and Battery brought for c. The Defendant pleads that he at the time of c. was seised of the Rectory of c. where the Battery was supposed in Fee and that at the time in which c. Corn was severed from the nine parts at the place aforesaid and because the Plaintiff came to carry away his corn and the Defendant stood there in defence of his corn and keeping the Plaintiff from taking it away and the hurt that the Plaintiff had was of his own wrong c. the Plaintiff replies that it was of his own wrong with the such cause alledge c. and the Defendant demurred in Law and adjudged for the Plaintiff for that generall replication is good and doth not behove the Plaintiff to answer the Defendants Title because the Plaintiff by his Action doth not claim any thing in the Soil or corn but only damage for the Battery which is altogether collaterall to the Title but when the Plaintiff makes a Title by his Declaration to any thing and the Defendant shall plead another thing in destruction thereof or if the cause of Action in such Cases the Plaintiff must reply specially and not say without such cause as it is in 14 H. 4. Trespasse brought for taking a servant the Defendant shews that the Father of him that the Plaintiff supposes to be the servant held of him in Knights Service c. and died seised his Heire the Servant being within age by reason whereof he seised as his Ward as it was lawfull for him to do and there the Plaintiff replied that he did it of his own wrong and without such cause and disallowed by the Court because he did not answer to the Seigniory to wit that he did that of his own wrong without it that the Father of him that is supposed to be the Servant held of him in Chivalry and the reason was because the plaintiff by his Action made Title to the Servant according to 16 E. 4. and Judgement given accordingly ALlbon against Dremsall Mich. 7 Jacobi The plaintiff declares in an Action of Trespasse that the Defendint the twentieth day of February 5 Jac. did break the plaintiffs Close at c. called Sandy Heath and entered it and spoiled his grasse and kiiled took and carried away a hundred Conies and also that the Defendant the same day the free Warren of the plaintiff at Sandy aforesaid did enter and chase without license and killed fifty Conies and took carried them away to his damage of c. the Defendant to the whole Trespasse except the entring and breaking of the Close called Sandy Heath not guilty and in Issue joyned upon that and as to the breaking the Close the plaintiff ought not to have his Action for he said that William Lord Russell and Elizabeth his Wife were and yet are seised in Fee in the Right of his Wife in a certain peice of Heath containing ten acres in Sandy close adjoining on every side separated from the place called Sandy Heath that they and all those whose Estate they have in part in that peice of Heath have used to have for themselves and Farmers of the said peice of Heath and for their Servants a passage unto the said peice of Heath and from the said peice in by and through the said Close called Sandy Heath in which c. the whole year at their pleasure to take and receive the profits of the said peice of Heath and the Defendant further sayes that long before the Trespass supposed to be committed very many Conies were wandering in the said peice of Heath and divers Cony holes were there made in which the said Conies did delight to live in and at the time in which c. they were in the said peice of Heath eating the grasse growing there and the Defendant as Servant to the Lord Russell and by his command the time in which c. in by and through the said Close in which c. towards and unto the said peice of Heath did walk over to hunt and take the said Conies in the said peice of Heath then being and feeding as it was lawfull for him to do which walking in by and through the said Close in which c. for the cause aforesaid is the same breaking the Close and entring thereof whereof the Plaintiff complains and averres that the place by which the Defendant walked for the cause aforesaid to Sandy Heath in which c. was the next passage by which he could go to the said peice of Heath to which the Plaintiff demurres and adjudged for the Plaintiff for a passage is properly a passage over the water and not over Land and the Defendant ought to have prescribed for the way and not for the passage for he ought to have observed the usuall words and such as are known in the Law for a prescription and usage is for a way and not for a passage and see 32 Assis 58. and 11 H. 4. 82. b. Secondly the prescription is not good
any satisfaction in tender to satisfaction Insomuch that this is only the fruit of Tenure and not like to cutti ng of Trees nor to digging of Cole or other Ore And so Coke cheife Justice that it hath been adjudged and with this agreed the booke of 21. Ed. 3. 1. The manner to make Summons in Dower if the Land lieth in one County and the Church in another County Then upon the Statute the Sheriffe ought come to the next Church though it be in another County and there make Proclamation asthe Auditors in Accompt ought to commit the Accomptants found in arrerages to the next Gaole and there ought to be committed though that they are in another County The words of a Patent of a Judge of the Common Bench are as follows that is to say James by the grace of God c. Know that we have constituted Humphrey Winch Serjeant at Law one of our Justices of the Common Bench during our good pleasure with all and singuler Vales and Fees to the same office belonging and appertaning In Witnesse of which c. Michaelmasse 1611 9. Jacobi in the Common Bench. Jacob against Stilo Sowgate IN an Action upon the Case for slanderous words The declaration was that the Defendant said of the aforesaid Plaintiff that he is perjured to which the Defendant pleads that the Plaintiff another time hath brought an Action in the Kings Bench against the same Defendant for that that he the said Plaintiff was perjured and had cozened John Sowgate and that the Defendant had pleaded to all besides these words Thou art perjured not guilty and to the words thou art perjured he Justifies that the Plaintiff was perjured in making an Affidavit in the Star-chamber and this Issue was Joyned and it was found for the Defendant but it was not pleaded that any Judgement was given upon it And Haughton Serjeant for the Plaintiff which had Demurred upon the Defendants Plea Argued that the Plea is insufficient for if it shall be intended by that that the Plaintiff was afore times barred if it be in a reall Action it ought to be averred that it is for the same Land and if it be in a personall Action it ought to be averred that it is the same Debt or Trespasse and if it be pleaded by way of Justification then he ought to have averred also that the Plaintiff hath taken a false and untrue Oath upon which Issue might have been taken But here nothing is pleaded but the Record and nothing averred in Facto So that the Issue cannot be taken upon it for the pleading is only of Record and that the Defendant for the cause aforesaid in the Record afore said mentioned spoke the said words and this is not good for there is not contained any cause of Justification as in Quare Impedit in the 15. and 16 H. 6. The Defendant pleads that he was Incumbent by the cause aforesaid and without that But this was no good Plea for he ought to plead his Title specially And also it is not pleaded as Estoppell for then he ought to have relied upon that precisely as 35. H. 6. in Replevin the avowant relies upon discent 30. assis 32. 2. H. 7. 9. Also Estoppell it cannot be insomuch that Judgement was not given in the first Action Also it is not pleaded as Estoppell for the Plea is concluded Judgement if Action where he ought to have relied upon the Estoppell and peradventure also the Triall was voyd by unawarding of Venire Facias or other Error So that without Judgement it can be no Estoppell and so he concluded and praied Judgement for the Plaintiff Barker Serjeant argued for the Defendant that the Declaration is very good and notwithstanding that the words are generall that is he is perjured yet this may be supplyed very well by the Innuendo as it appeares by James and Alexanders Case 4. Coke 17. a. And also that Estoppell by the Verdict is good without Judgement as in Action of Debt release was pleaded and Issue joyned upon that and found for the Defendant and after another Action was brought for the same Debt and agreed that the first Virdict was Estoppell 2. Ed. 3. 19. b. c. And he cited Baxter and Styles Case to be adjudged in the point that the Estoppell is good and also Vernons Case 4. Coke where the bringing of a Writ of Dower Estopped the Wife to demand her Joynture and so concluded and prayed Judgement for the Defendant Coke the Count is good being of the aforesaid Plaintiff and may after be supplyed by Innuendo though that the words after are generall But if the words were generall that is He is perjured without saying that the Defendant spoke of the aforesaid Plaintiff these English words following Videlicet he Innuendo the Plaintiff is perjured this is not good and shall not be supplied by Innuendo and he said that another time convicted is a good Plea in case of life without Judgement but this is in favour of life but in trespasse it ought to be averred that it is the same Trespasse and also there ought to be Judgement and the Defendant ought to relye upon that as an Estoppell and agreed by all that Judgement should beâ—given for the Defendant if cause be not shewed to the contrary such a day c. Michaelmass 1611. 9. Jacobi in the Common Bench. Hall against Stanley IN Trespass for Assault and Imprisonment the Defendant justifies insomnch that the Action upon the case was begun in the Marshalsey for a Debt upon an Assumpsit made by the Plaintiff and that upon that Capias was awarded to this Defendant being a Minister of the said Court to Arrest the Plaintiff to answer in the said Action and that he by force of that Arrested the Plaintiff and him detained till the Plaintiff found suerties to answer to the said Action which is the same assault and Imprisonment To which the Plaintiff replied that none of the parties in the said Action were of the Kings houshold and so demanded Judgement upon which the Defendant Demurred in Law And Dodridge the Kings Serjeant for the Defendant that the Court of Marshalsey may hold Plea of Actions of Trespasse by the parties or any of them of the Kings house or not and he intended that the Jurisdiction at the Common Law was generall and then they have Jurisdiction of all Actions as well reall as personall and though that their Jurisdiction be in many cases restrained yet in an Action of Trespasse there is not any restraint but at this day they have two Jurisdictions That is in Criminall cases and also in Civill causes within the Virge See Fleta book the second and third where he discribes the Jurisdiction of all Courts and amongst them the Jurisdictions of this Court and also Britton which wrote in the time of Ed. 1. lib. 1. chap. 2. which saith it was held before Bygott who was then Earle
without title he may have an action of Covenant for the Lessor hath the Evidences and ought to defend the possession of his Lessee and the right also and damages are only to be recovered and so is the difference between a Lease and Inheritance though that the words of the Covenant are all one And also he said that it may be objected that the Incorporation was not well pleaded by Edw. 6. Insomuch that he doth not say after the Conquest for Ed. 3. was Ed. 6. in truth sor there were 3 Edwards before the Conquest and he was the third after And he saith that he hath known many exceptions to be taken to that but hath not known any of them to be allowed and for that he will not insist upon it But the principal matter upon which he insists was that it doth not appear by the pleading that the Deane which made the Lease was dead and it appears by the pleading that he entered in 4 Jacobi and was seised and then of necessity ought to be living and such averment of his life is sufficient as it is agreed in the 13 Eliz. Dyer where a Parson made a Lease for years and the Lessee brought an Ejectione firme and in pleading it was said that the Parson is seised of the reversion and this was allowed to be good without other averment of his life for he cannot be seised if he be not living and then if the Deane shall be intended to be living then they all agreed that the Lease shall be good against him for it was adjudged in this Court between Blackeleech and Smal that if a Bishop makes a Lease for years and after makes a Lease for life the Lease for years being in Esse and dyes and the Successor accepts Rent this shall bind him and by this it appears that the Lease was good against the Dean himself which made it and also against the Successor till he enter and avoid it and then by consequence the action of Covenant shall be very well maintainable and so he concluded also that Judgement should be given for the Plaintiff which was done accordingly Pasche 1612. 10. Jacobi in the Common Bench. Browning against Strelley MIchael 2 Jac. Rot. 531. In debt the Margent of the Count contains Nottingham and the Count it self contains that the Obligation was made at the Town of Nottingham which is a County of it self and the Defendant pleads non est factum and the view was of the Town of Nottingham and it was tryed by the Jury of the County of Nottingham and this was moved in arrest of Judgment after verdict for the Plaintif by Nichols Serjeant And it was agreed by all the Justices that Judgment shall be given accordingly to the verdict insomuch that notwithstanding that the Town of Nottingham is a County of it self yet it may be that some part of the Town may be within the County and for that possibility they would not arrest the Judgment Ireland against Smith IN action upon the Case for these words the Plaintiff counts that he was and is Proctor in the Arches and in communication between one Morgat and the Defendant of him the Defendant said to the said Morgat You take part with Ireland against me who is an arrant Papist and hath a Pardon from the Pope and can help you to such an one if you will And after verdict it was moved by Hutton Serjeant in arrest of Judgment that the action doth not lye and he saith that it hath been adjudged in this Court 3 Jacobi Rot. 7031. between Kingstone and Hall that an action doth not lye for like words he is an arrant Papist And it were good that he and all such as he is were hanged for he and all such as he is would have the Crowne from the Kings head if they durst And it was adjudged that an action doth not lye for these words which are more strong then the words in this action but of the other part it was said by Haughton Serjeant that he did not insist upon these words that he is a Papist but that he had obtained a Pardon from the Pope the which by the Statute of 13 Eliz. is made High Treason and then notwithstanding that no time was limited when the Pardon should be procured that is before the Statute or after yet it shall be intended such a Pardon which is against the Statute for the presumption of the Law shall be taken in the worst sense and not like to the Case where a man saith to another that he hath the Pox And also it is alledged by the Count that the Plaintiffe is not above the age of 40. years so that he cannot obtain a Pardon before the Statute of 13 Eliz. And for that he supposed that the action is very well maintainable Coke cheif Justice said that it was adjudged in the Kings Bench in the time of Catlyn cheife Justice there that an action upon the Case doth not lye for calling a man Papist And Winch Justice said that if a man call a Bishop or another man which is trusted with government of the Church and Ecclesiastical causes that he thought the action lyes otherwise not Also he supposed that the Pardon might be for Purgatory or other matters which are not within the Statute of 13 Eliz. And also the Pardon may be procured by another and come to his hands by delivery over afterwards that it had passed two or three and the averment is not sufficient for it is onely Implication and Inference Coke and Warberton Justices sayd that a Papist is one that errs in his opinion and though that the Papists are Authors of many Treasons yet the Law doth not intend so and so of Heretick which is alwaies in a fundamentall point of Religion and yet an action doth not ly for calling a man Heretick also the Pope is a temporall Prince in Italy and for this cause also may pardon and this is out of the statute of 13 Eliz. and so they all agreed that the Action doth not ly for these words Pasche 1612. 10 Jacobi In the Common Bench. Marstones Case IN a common Recovery the Tenant appears by Attorney and vouches one which is present in Court which appears and vouches the common Vouchee and the Attorney hath a Warrant of the party acknowledged before a Judge but this was not entred of record and this was in Hillary tearme 16 Eliz. And it was moved by Dodridge the Kings Serjeant that the Warrant of Attorney might be now amended and entred upon the record and Coke supposed cleerly that it shall not be entred insomuch that it is a want of a Warrant of Attorney but if there had been a mis-construing of the Warrant of Attorney otherwise it is for this seems to be within the Statute of 27 Eliz. Chapter 5. Concerning amendments In Debt upon an obligation with condition to perform Covenants in an Indenture of Lease the Defendant pleads that after
a man off an action of a higher nature 219 Vsage its exposition 222 Usitatum whom it doth advantage ibid Variance what 239 Valuable consideration out of the statute 102 Vnity of possession 26 Uoluntas donatores how to be taken 77 Vexation unjust remediable how 100 Vniversity of Oxford was removed for a certain time 244 Vniversity not locall ibid Variance what 245 W WAles councell and presidents Jurisdiction 29 Wast 46 150 168 Wittall who 37 Westminster 2 chap 35 expounded 92 93 94 95 Writs 147 Warrantia chartae 169 Warranty to a tenant pur view 191 Warrantia chartae not upon two deeds 56 Writ of error 137 208 Wife joyn with her husb in feoff what shall bind 141 Wager of law 255 FINIS Case for words You are a Bastard tried by the Countrey Judgement arrested because the Plaintiff did not averr that he was an Attonrney at the time of the words spoken Case for words which dâ—d amount to but petty Larceny For calling one Witch no Action will lie If Felony be committed good cause to arrest one for it but not to speak words to defame one A Feme covert cannot convert Action upon the casebrought upon a collateral consideration and good Judgement reversed by Writ of Error because Sheriffs name was omitted on the venire fac Case for words not actionable Gase for words A man shall not be punished for mistaking the Law Case for words The like The like for Words Judgement arrested because the Plaintiff omitted to shew in his Declaration the words were spoken of himself The Defendants Justification adjudged naught because he justified for words that were actionable To do a thing allowable by Law is no conversion The Defendants Justification amounted but to Noguilty and adjudged naught Judgement arrested for want of certainty in the Count. Judgement arrested for that the consideration was not valuable Case forwords for calling an Attourney Bribing Knave Judgement arrested being mis-tried An inuendo will not maintain an Action Difference between a promise executory and executed quod nota Non cul pleaded where Non assumpsit should have been pleaded and adjudged a good Issue Action of case for words upon the statute of 1. Jac. against Invocation of Spirits Ehe Imparlannce role supplied by the Issue being perfect Judgement arrested for not shewing the Letters of Administration Judgement arrested for that the Communication did not appear but by the Inuendo Action of the Case for calling a man mainsworn fellow Moved in Arrest of Judgement because no Demand alleadged but not allowed Judgement arrested for incertainty in the Declaration By a general Pardon both Punishment and Fault taken away Promise upon condition notice not necessary Nota. Judgement arrested for incertainty in the Count and for that the promise was made by an Infant Justification for calling a man perjured dis-allowed because he was t convicted Action of the Case will not lie for calling a Currier Barretor For this word Papist no Action will lie unless spoken of a Bishop Nota. Action of the Case for double prosecution of a fieri sac Upon a non est invent returned upon an Outlary where the party escaped the Plaintiff hath his Election where to bring his Action Judgement arrested for want of an Averment Judgement arrested for the incertainty of the Count. For collateral matters which are not Duties a Request is necessary The word Witch will not bear an Action An implied promise where it is upon the reality will not lie except upon a collateral cause An Indebitat assumpsit for money ruled good without expressing for what Action against the Sheriffs of London for discharging one who was arrested coming to defend a suit depending there The Court cannot discharge one arrested except he be arrested in the face of the Court. Judgement stayed for variance between the Count and Writ to inquiry Release by the Husband pleaded in Bar to an Action brought by the Wife after his Death for money to be allowed her after his Death and adjudged no Bar. Action for calling an Attourney Champertor The Roll mended after the Record was certified by Writ of Errour it being the Clarks misprision He is a forging Knave spoken of an Attourney actionable Implyed words will not beare an action Trover brought by Administrator as of his owne goods and adjudged good Demand and demall makes a Conversion The Sheriff justifies by vertue of a Process out of the Exchequer to levy of the Occupiers of S. Lands 59. s. arrear upon the said Lands Common appurtenant cannot be divided Mis-triall the Venn being mistaken Judgement arrested for a mistake of the Jury In consideration the Plaintiff would agree the Testators son should marry the Plaintiffs daughter adjudged a good consideration Rents arrear no Plea in Covenant Difference between Covenant and Debt to bring an Action Difference between Covenant and Debt to bring an Action Breach assigned in default of the Party that never sealed the Indenture of Covenants Covenant lies against the first Lessee upon breach of Covenant made by the Assignee Difference between Covenant and Debt Covenant upon a void Lease is good Action would not lie because if the Covenant was not performed Piracy is no excuse to perform a Covenant Judgement arrested for default in the Declaration A Covenant in Law shall not be extended to make a man do more then he can A Suit in Chancery no Disturbance Judgement arrested for defects in the Declaration Breach that one entred and shews not by what Title and naught Release cannot be given in Evidence upon a Plea that the Defendant was never a Receiver of the Plaintiffs Money In Account the Process are sum Attaint and Distress In Account two Judgements and upon a Nichil Process of Vlamy lies Account against a Baily local The Defendant may wage his Law if the Receit be per manus proprias Nota. In Account the Writ abates the Death Nota. Nota. Nota. Matter in discharge of the Actions shall not be pleaded in Bar. Nota. Nota. Judgement in Account upon a special Verdict Misprision of the Clerk amended after Verdict No Tenant at the time of the Writ purchased nor afterwards and if c. no Disseisin Note upon the Kings Grant View to be there where the Office is performed Another Writ brought and hanging a good Plea in abatement Assise taken by default against Harvey and the other Tenant pleaded in abatement of the Assise that there was a Quare impedit depending Nota. The King cannot create an Office to the Queen who may bring an Assise No Costs in a non-suit in Assise The Court was denied a Supersedeas the surmise being onely matter in suit Nota. A Writ of Covenant brought against more then acknowledged and prayed to be amended and denied Lease made to one during the life two if one die the Lease is ended Nota. A case of Jointure Nota bene Difference between Tenant at will and sufferance Joynt Debt and Contract cannot have several Pleas. Nota. Nota.
Acres to the Plaintiff and that the Defendant made and erected one Ditch and Hedge by reason whereof the Plaintiff lost the benefit of his way and after Triall and Verdict for the Plaintiff it was moved in Arrest of Judgement because it did not appear in the Declaration to what Village the common way led to And it was held a good Exception and Judgement arrested but if it had been unto a common way there or in such a Village it had been good KEnt versus Prat Hill 7. Jac. rotulo 131. Action upon the Case the Plaintiff declares that Prat was Rector of the Church of S. And that Kent was lawfully possessed of the Parsonage-house and that there were divers strifes between the Plaintiff and Defendant for the said Rectory and that the said Prat in consideration that the said Kent would surrender the Parsonage-house and the Gleab-land which were then sowed by Kent he promised c. And after Triall it was moved in Arrest of Judgement that the Surrender was not a valuable consideration because it did not appear to the Court that Kent had any Estate but at will which is determinable at the will of the Lessor and so he surrendred nothing but if these words had been in the count viz. of the Demise of the said Prat For a term of divers years it had been good though the certainty of the years had not been expressed SMailes versus Belt uxorem Hill 1. Jac. rotulo 1372. Action upon the Case for words spoken by the Woman Videlicet Thou art a Theif and a mainsworn Theif and a Verdict for the Plaintiff and moved in Arrest of Judgement that the Action would not lie but Judgement was arrested because the Issue was Quod ipsi non sunt cul and it ought to have been that the Woman was not guilty YArdley Attourney versus Ellyll Mich. 11. Jac. rotulo 1252. Action upon the Case brought for these words Your Attourney meaning the Plaintiff is a bribing Knave and hath taken twenty pounds of you to cozen me the Plaintiff laid a Communication such a day and place by the Defendant with one B. which B. had before that time retained the Plaintiff to be his Attourney concerning the Plaintiff Hubbart and Nichols held the words actionable videlicet for the first word Bribing Knave and that the last words did not extenuate or weaken the former if the words touch him in his Profession the Action will lie for it is against the Oath of an Attourney Birtridge is an old perjured Knave and that is to be proved by a stake parting the Land between M. and C. One Judge for the Plaintiff and two for the Defendant COrnhill versus Cowler Trespass upon the Case brought against Baron Feme for words spoken by the Woman the Baron Feme plead Quod ipsi in nullo sunt cul de praemissis and the Jury finde that the Woman was guilty and Exception taken after Triall to the Issue and Verdict and they were both aided by the Statute of Ieofayles But another Exception was that the Action was laid in Suff. And the Addition in the Writ was A. C. de C. in Com. Essex and in the Declaration the Plaintiff alleadges that the words were spoken at C. in the County aforesaid which was in the County of Essex and so a Mistryall CHimery versus God Action upon the Case upon a promise to discharge and save harmless the Plaintiff against all manner of persons and shews a Suit for Tithes in Norwich Court and the Defendant replies that the Plaintiff was not damnified and the Plaintiff rejoyns that he was damnified to wit at S. aforesaid which was in the County of Suffolk where the Action was brought and the Court held the Cause was mis-tried because the Suit was in Norwich and ought to be tried in Norwich and not in Suffolk and these words Apud S. praedictam were idle TIllet versus Bruen for words Trin. 12. Iac. The Plaintiff shews a Suit in Colchester Court and a Triall there before the Bayliff and that the Plaintiff gave in Evidence his knowledge and the Defendant willing to defame the Plaintiff as if he had given false Evidence said of the Plaintiff Thou art as much forsworn meaning in the Evidence aforesaid by the Plaintiff upon his Oath in Form aforesaid given as God is true and moved in Arrest of Judgement that the Inuendo would not maintain the Action and so adjudged LAmpleigh versus Braithwaie Mich. 13. Iac. rotulo 712. Action upon the Case in which the Plaintiff sets forth that whereas the Defendant had feloniously killed a Man and after the Felony committed did earnestly request and solicit the Plaintiff that he would labor and indeavour to obtain from the King for the Defendant a Pardon for the Felony upon which the Plaintiff at the instance and request of the Defendant by all lawfull ways and means possible did often and by many days labor and indeavor to obtain c. Videlicet by riding and journeying at his own cost and charges from L. unto the Village of R. where the King then was and from thence back again to L. to obtain c. The Defendant afterwards at H. in confideration of the Premisses did assume and promise to give the Plaintiff an hundred pounds of lawfull money when he should be required and a Verdict for the Plaintiff and moved in Arrest of Judgement for that it did not appear that the Plaintiff had spoken to the King for a Pardon nor done any thing or obtained a Pardon and Judgement was given for the Plaintiff Wynch said the Promise was subsequent to the Request and good for although the Defendant had no good by it yet because the Plaintiff was at costs and labor and it was at the Defendants request sufficient to maintain the Action If I request one to do a thing for me and make no promise and after you let me know that you did such a thing for me and then I promise to discharge or pay you this is a good consideration although the Promise go not with the Request otherwise it is where a man doth me a curtesie without any request And Hobart took this difference between a consideration executed and executory for where Non assumpsit is pleaded to a consideration executed the Plaintiff needs onely to prove the Promise for where the consideration is executory the Defendant may take Issue as well for not performing the consideration executory as upon the Promise GLover versus Taylor Hill 13. Iac. rotulo 852. Action upon the Case for ill using a Horse so that the Horse died and the Defendant promised to re-deliver the Horse The Defendant pleads Non cul And after a Verdict it was moved in Arrest of Judgement because he did not plead Non assumpsit And it was held a good Issue MArshall versus Steward Mich. 13. Iac. rotulo 1134. Action upon the Case reciting the Statute of 1.
adjudged insufficient and a new Writ awarded but many held that in the case of a Cognisor it was well enough but not in the case of a Purchasor If one knowledge a Statute and after a Judgement is had against the Cognisor now against the Cognisor the Statute shall be preferred but not against an Executor If a man plead a Bond knowledged to the King in the Exchequer it must be averred to be a true Debt If a Debt be assigned to the King in this case no priority of Execution If one staul a Debt by 20. s. a year this shall not stay my Execution the Court were of opinion that an Extent would not be good at Barwick for the Writ runs not there If a Judgement be given in a Court of Record it shall be preferred in case of an Executor before a Statute But if a man acknowledge a Statute and afterwards confess a Judgement and if the Land be extended upon the Judgement the Cognisee shall have a Scire facias to avoid the Extent upon the Judgement otherwise in case of Goods for therein first come first served for if I have a Judgement against one and afterwards he acknowledgeth a Statute and by vertue of the Statute the Goods of him being dead were taken in the Executors hands then upon the Judgement a Scire facias was sued and afterwards a Fieri facias of the Testators Goods it was held that the Goods first extended were lawfully extended and shall be good A Judgement was had against Sir Fr. Freeman and an Extent came to the Sheriff and afterwards and before any thing was thereupon done one Fieri facias against the Executor upon a Judgement given before the acknowledging the Statute was delivered to the Sheriff and the Question was whether the Extent or Fieri facias shall be first executed And note if the Land be first extended upon the Statute and afterwards an Elegit upon a Judgement obtained before the acknowledging the Statute come also to the Sheriff the moity of the Land extended shall be delivered to the Plaintiff upon the Judgement HIll 15. Jac. The case of Villainage is within the Statute of Limitation and in the case of M. Corbet it was held that the Prescription of the Seisin of the Plaintiff and his Ancestors as Villain was more then needeth and the Issue thereupon taken was good by the whole Court after Exception taken thereupon and Judgement was given for the Plaintiff In every Elegit the Sheriff must return and set out the moity distinctly unless they be Tenants in common and in that case he must return the special matter An Extent issued out against one Greisley by the name of Greisley Esquire who was at the time of suing out the Writ made Knight and Baronet and it was naught and the Plaintiff prosecuted a new Writ MIch 10. Jacobi A Tenant by Statute Staple or Elegit that hath extended an Abbots Lease or a Lease made out of an Abbots Lease is not bound to shew it because he cometh in by Act of Law but any other that cometh in under the Lease must shew it by the opinion of the whole Court And note that in Hillary 10. Jac. two Inquisitions taken at several Dayes by several Juries upon one Statute Merchant were adjudged naught one was taken of the Land and the other for Land and Goods and Extent of the whole fourth part was naught for it should be of the moity of the fourth part and mark it was of a Lease which was but a Chattell and the Sheriff might have sold it as Goods but seeing he had extended it in this case he should receive benefit but as in a common Extent COmyrrs versus Brandling A Lessee that had a Lease of the value of 100. l. and after the Teste of the Elegit and before the Sheriff had executed the Elegit assignes his terme to one who assignes it over to the Plaintiff in the Scire facias and afterwards and before the last Assignement the Sheriff executes the Elegit and delivers the Lease to the Plaintiff tenend c. for satisfaction of the Debt which came to but 43. l. 6. s. 8. d. it was held by all the Judges that the Sheriff could not deliver the Lease at another value then what the Jury had found it at and the Sale made by the Sheriff is as strong as if it had been made in open Market and that all the Goods and Chattels are bound after the Teste of the Elegit and cannot be sold by the Owner after the Teste of the Writ If a later Extent be avoided by an ancient Extent after the ancient Extent is satisfied the later Extent shall have the Land according to his first Extent without any re-extent by the opinion of Serjeant Hutton if the Husband charge the Lease of the Wife and dieth the Wife shall hold the Land discharged HIll 12. Jac. The Earl of Lincoln against Wood the Earl of Lincoln did arrest Wood upon a Capias upon a Statute Merchant Wood being in Execution obtained in the Chancery an Audita Quaerela and did put in Bail there and had a Supersedeas and was discharged of his Imprisonment and the Audita Quaerela and Bail sent into the Common Pleas to be proceeded on The cause of the Audita Quaerela was grounded upon the performance of the Defeasons of a Statute and after this case was debated for the Bailment of Wood and held by the Court to be good it was allowed of If the Act for Dissolution of Monasteries had not given the Land to the King the Founders ought to have had them And if an Hospital or religious House is impeached upon the Statute of Superstitious uses it must be proved to be regular for they must be religious that are dissolved by E. 6. JOules versus Joules Alderman purchased Land of one against whom a Judgement was given long before the Purchase and the Vendor afterwards became unable to pay the Judgement and long after the Plaintiff in the Judgement purchased a Scire facias against the Defendant and had Judgement against the Defendant by Default and afterwards had an Elegit and by vertue of that the Sheriff extends the Land of Joules the Purchasor who prayes the aid of the Court because the whole Land was not extended but he was forced to bring his Audita Quaerela If I make a Lease for years reserving a Rent during my Life and my Wives Life if I die the Rent is gone because she is a stranger she shall never have the Rent because she hath no Interest in the Land if one of them die nothing can survive to the other and a Limitation must be taken strictly otherwise it is by way of Grant that shall be taken strongly against the Grantor If 2. Tenants in common joyn in a Lease for years to bring an Ejectment and count Quod cum dimisissent c.
Arbitrator for else the Bond remaines as single and so in this Case the Defendant pleads that the Arbitrator made an Award and that it was delivered by the Arbitrator but whether it was delivered in writing or under his hand according to the Submission is not pleaded and therefore it is no Answer to the Plaintiff for he hath not pleaded an Award made according to the Condition and therefore the Bond is single Yea Cook argued for the Defendant and said that the Plaintiff by the Demurrer had confessed that the Arbitrator had made no Award as the Defendant had pleaded and then he shal never have Judgement for if it may judicially appear to the Court that the Plaintiff had no Cause of Action he shall never have Judgement and that the Plaintiff ought to have averred and joyned with a Traverse of that the Defendant pleaded to wit that the Arbitrator had made an Award and delivered it in writing under his hand and seal without that c. and as to the other matter of the Trespasse the same Day and so he might have demanded Judgement for his Plea doth but amount to the general Issue that the Arbitrators made no Award but Yelverton answered that it could not be pleaded in any other manner then he had pleaded it because he could not traverse it because the Defendant himself had pleaded that he made an Award and although the Demurrer confesse all matters in Deed yet they are such onely as are well pleaded as Burtons Case 5. Rep. 69. And also although the Award pleaded cannot be intended the same Award specified in the Condition yet the Plaintiff had good cause of Action and all the Court Fleming being absent were of opinion that the Plaintiff ought to recover for the Reasons before alleadged but as for that point whether the Controversie that grew in the morning should be arbitrated because there cannot be a fraction of Dayes it was not argued nor any opinion of the Court delivered onely Cook cited 5 E. 4. 208. that the Arbitrator ought to arbitrate of that because the Condition was of all matters untill the making the Obligation WHeeler versus Hayden Trin. 11. Jacobi W. Parson of the Church of A. brought an Action of Debt against the Defendant for Arrerages of Rent and declared upon a Lease made to the Defendant for four years if the Plaintiff did so long live and continue Parson c. and upon a Non demisit pleaded the Jury found an especial Verdict to wit that the Plaintiff had leased it to the Defendant for four years if the Plaintiff shall so long live onely and whether this Verdict was found for the Plaintiff or Defendant was the Question and Cook Serj. seemed that it was found for the Plaintiff for the main matter was that he should lease it if he so long lived and the subsequent words are of no effect because they contained no more then by the Law was before spoke of for the Law sayes that if he be non-resident or if he resign or be deprived that the Lease shall be determined like to the 30. Ass 8. A Lease to two and the longest Liver of them and the 17 E. 3. 7. A. A Lease to one of Land and a House for years and that the Lessee may make good profit of it this last Clause in both is idle and Dallidge was of the same opinion but Yelverton against them for the Plaintiff had intituled himself to the Action by such a Cause and if he fail in that it is his folly and shall not recover for the Lease upon which he declared had two Determinations the first by Death the second by removing and the Jury had found the Lease onely upon the first Determination and therefore various in substance and therefore the Jury have found against the Plaintiff as if a Lease be made by Baron and Feme if they shall so long live continue married both of them ought to be found Haughton to the same purpose for when a Parson makes a Lease if he shall so long live he doth take upon himself that he will do no Act by which the Lease shall be determined but onely by his Death for otherwise an Action of Covenant will lie against him but if the other Clause be added to wit and shall so long continue Parson then he may resign or be non-resident without danger and so there is great difference between the Verdict and Declaration and it was adjourned the Court being divided in opinion Dower MIch 6. Jacobi Dower may be brought as well against the Heir himself as against the Committee of the Ward but if an Infant be in Ward to a Lord in Chivalry the Dower shall be brought against the Guardian in Chivalry If Dower be brought against one who is not Tenant of the Free-hold the Tenant before Judgement shall be received and upon Default of the Tenant and after Judgement he may falsifie MIch 9. Jac. Dower demanded of the third part of Tithes of Wooll and Lamb in three several Townes and it was demanded of the Court how the Sheriff should deliver Seisin and the Court held it the best way for the Sheriff to deliver the third part of the tenth part and the third tenth Lamb Videlicet the thirtieth Lamb. In Dower against the Lord Morley the Tenant at the Day of taking of the Inquest after the Jury had appeared and before the Jury were sworn made Default and a Pety Cape was awarded and the Tenant at the Day in Banck informed the Court that the Tenant is but Tenant for Tenant for Life and that the Reversion is in one P. who at the Return in Banck ought to be received to save his Title and the Court appointed him at the Return of the Pety Cape to plead his Plea HIH. 13. Jacobi Allen and his Wife Demandants versus Walter in Dower of a Free-hold in Munden Magna Munden Parva B. the Sheriff returned Pleg de prosequend J. D. R. R. And the Names of the Summoners J. D. R. F. And after the Summons made and by the space of fourteen Dayes and more before the Return of the said Writ at the most usual Church Door of Munden Magna where part of the Tenements lay upon the 27. of October being the Lords Day immediately after Sermon ended in that Church he publikely proclaimed all and singular things contained in that Writ to be proclaimed according to the Form of the Statute in that behalf made and provided L. P. Ar. Vic. And Exception was taken to the Return because Proclamation was not made at the Doors of the Churches where the Lands lay and the Court held it not necessary but it was sufficient to make Proclamation at any of the Churches but the Return was insufficient because he said that he had caused to be proclaimed all and singular in that Writ contained and sayes not what and the Demandant released his Default upon the grand Cape CLefold versus
sides they shall recover costs and dammages LEe versus Edwards Trin. 19 Jacobi rotulo 470. The Case was in Replevin a Copy-holder claims Common in another mans Land the Lord infeofleth the Copy-holder of his Copy-hold Land whether he hath now lost his Common and held that he had but if a Copy-holder hath Common in the Lords waste and the Lord inseofeth him of the Copy hold with all Commons the Common is not gone Oabel versus Perrot Hill 9 Jacobi rotulo 2734. Tenant in Tail hath power to make a Lease for 89 years if three persons live so long and reserving the old Rent due and payable yearly and he maketh a grant in Reversion for years and whether that be good or no was the Question there being a Lease for life in possession the second Lease was for 89 years if three live so long for the matter in Law the Court held the Lease good but for want of an averment of the life of c. the Plea was not good ROberts versus Young Hill 9 Jacobi routlo 1835. the Defendant in a Replevin pleads that he offered amends and doth not shew that he offered it before the impounding of the Cattle and adjudged an ill Plea and the offer of amends cannot be made to him that maketh cognisance BAcon versus Palmer Trin. 12 Jacobi rotulo 3947. A Copy-holder in Replevin prescribes to have Common of pasture appurte nant to the Copy-hold the other party pleads an Extinguishment of Common because the Lord had inclosed Land lying in another field in which field and in the other field the Lord had Common by cause of vicinage and note that in Common for cause of vicinage if one inclose part it is an extinguishment of all the Common SHarp versus Emerson Mich. 12. Jacobi The Defendant makes avowry for Homage Fealty and Rent the Plaintiff prayes in aid and hath a Summmons in aid and at the return of the Summons the Prayee in aid was Essoined and after the Ession the Defendant moved the Court that the Homage might be put out of the Avowry which was entred with by consent of parties was raised out of the Will ARundell versus Blanchard and Jackson Pasch 13 Jacobi rotulo 2037. The taking in Replevin was supposed to be at Southwark and one of the Defendant pleads non cepit and the other Bailiff of the Governors of the possessions revenues and good of the Free-Grammar-School of c. for the Parishoners for the Parish of Saint Olaves in Southwark in the County of Surrey and the Advowry was made for damage fesant the Plaintiff prescribed for a way belonging to his house in the Parish of Saint Olaves in Southwark and the Venire facias was of Southwark in the Parish of Saint Olaves in Southwark and exception taken to that and held good because one Defendant had pleaded non cepit and another exception was because he had not shewed when the Corporation begun and held an idle exception for one need not shew when they were incorporated another exception was because the name of one of the Jury was mistaken because in the Return of the Venire it was to Lisney of Croydon and in the Pannell of the Habeas Corpus it was written to John Lisney of Croydon and because in sound it is all one and the Sheriff made oath that he was the man that was returned in the Venire facias the Return was amended in Court and Judgement given by the whole Court for the Plaintiff PAin versus Mascall Hill 12 Jacobi rotulo 3400. The Lord avows the taking of one Mare as for Rent behind so for the fourth part of a Releif and doth not expresse the same due for the releif and for the Rent the Plaintiff pleads tender and demurres for the Releif because he had not expressed the same and because he had distrained one thing for the Rent and Releif pretending that if one cause passe against him and another for the Avowant that he could not have a Return habend but the Court were of a contrary opinion but if two men shall distrain one and the same Mare for two severall causes and one hath Judgment for himselfe and the other for himselfe In this case no return habend can be made of the Mare BRown versus Goldsmith Trin. 13. Jacobi rotulo 607. A Court of Pipowders is incident to a Fine and a Court Baron to a Mannor And a Court Baron cannot be separated from a Mannor for it is a wealth to a Mannor the like of a Court of Pipowder to a Fair by the grant of a Mannor with cum pertinencijs the Court passes for it is an incident inseparable to the Mannor and a man cannot grant his Court but he may grant the profits of his Court. MAgistri socij Collegij Emanuel is in Cambridg The writ was adjudged naught in replevin because they had distrayned in their proper names for a Corporation as Maior and Comonalty cannot distrain in their own persons but by their Bayliff The Court held that the Sheriff could not take a Bond in replevin but must take pledges according to the old custome JVid versus Bungory Trin. 8. Jac. rotulo 3059. The Defendant shews that one was seised of Land in fee and held it by Knights service of a Mannor and for the rent of two Cocks and two Hens and the Lord grants the third part of the Mannor to another who avows for the seruice and the Cocks and Hens and held he could not alone avow for that joynt service but the other should joyn with him WEnden versus Snigg Trin. 11. Jac. rotulo 1137. In replevin the question was upon a Lease for life made to three to have and to hold to them the said A. B. and C. and every of them for the term of their lives and the longest liver of them successively one after another as they are writ in order And the question was whether this was a remainder or no and it was held to be a remainder upon the reading of the Record but if the grant had been only successively not saying as they are named in the writing it had been naught because he could not tell who should begin THorold versus Hadden Trin. 11. Jac rotulc 451. In replevin a Juror was returned by the name of Payly and in the distress the name was T. P. and in the Pannell he was written Baily and tryed by that name of Baily and moved in arrest of Judgment for the mistaking of the name And the Court held that if the right name was sworn yet notwithstanding the mistake it was good for if the name in venire was not mistaken all was good and the Sheriff ought to amend his misprision and the Court demanded if any one could swear that Paly was sworn and one then present in Court made oath that Paly was sworn and the Court ordered that it should be amended
l. as it appears by Fleta and Brian the authority of the Marshall was absolute in civill and criminall causes at the Common Law and that Statute restrains them for Debts but not for Trespasse of what nature soever and therefore see the Statute of 30 l. 1. 5 E. 3. ch 2. and 10 E. 3. ch 2. Swaffe versus Solley Trin. 14 Jacobi rotulo 689. An Action of Trespass brought wherefore he took his Close the Defendant justifies for a way the Plaintiff replies that he did the Trespass of his own wrong without any cause alledged and so an Issue joyned and after a Verdict for it was moved in arrest of Judgement that the Issue was not well reined and prayed a new Triall because the Issue ought to be speciall but that exception was disallowed and adjudged that it was helped by the Statute of Jeofails by the opinion of the whole Court PLaint versus Thirley Hill 6 Jacobi rotulo 161. An Action of Trespass brought wherefore by force and Arms the Goods and chattells of the plaintif did take and impound the Defendant pleaded the common Barr and the plaintif assigns the place and are at issue upon that and after a verdict it was moved in arrest of Judgement that there was no Issue joyned because the Lands are not in question and so no assignment necessary and Judgement was stayed but afterwards upon a motion Judgement was given for the plaintif because the Issue was holpen by the Statute of Jeofails and there was the like case upon a Demurrer in the court of common pleas Trin. 4 Jacobi rotulo 1131. CHild versus Heely 13 Jacobi rotulo 3381. vel 381. An Action of Trespass brought wherefore by force and Arms the Close Hedges and Gates of the Plaintiff at W. did break and his grass with walking over it did destroy and other his Grass with Cattell did eat and consume the plaintiff assigned one Close of pasture called Drew and another close called Sutton one other close called L. and the Defendant as to the Trespass except the breaking of the close called G. and P. and the treading c. with his feet and eating with his cattell in the said close called P. and E. not guilty and as to the breaking of the close c. saith the plaintif ought not to have his Action because he saith that E. 6. was seised of the Mannour of W. of which one Messuage c. was copy-hold and shews the custome for a way and another custome for a Common and conveys the Copy-hold to himself and justifies as to the pedibus ambulandi and as to the Trespasse with the Cattell justifies for Common the Plaintif replies as to the Trespass pedibus ambulandi that it was of his own wrong without any cause alledged and traverses the way and as to Trespass with the Cattell demurres and the cause of the Demurrer was as it appeared by motion because in the justification of the Cattell the Defendant had not alledged any custome for Common and so the Plaintif could not take any Issue of that custome but had alledged a custome for the way as for the common and the court were of opinion that it was well pleaded and Judgement upon the Demurrer for the Defendant FAirchild versus Gair Pasch 3 Jac. An Action of Trespasse brought for the tiths of the Church of B. and therein a speciall verdict was as followeth the Defendant was collated to this Church of B. being a Donative by A. and B. the Patrons and that the Church was exempt from the Jurisdiction of any Ordinary the Defendant resigned to A. and C. who was a stranger and to other persons who had no Interest his Church of B. with all Rights c. and afterwards the persons passe their Rights to D. who collates and interests the Plaintiff in the Church by reason whereof he seised the Tithes in question and the Defendant took them and concludes that upon the matter c. and if the Resignation be good then they find for the Plaintiff otherwise for the Defendant and by the opinion of the whole Court Judgement was given for the Plaintiffe for the Resignation was good both in respect of the thing resigned and of the person to whom it was made for it being a Donative and exempt from ordinary Jurisdiction the Resignation must be into his hands and the Incumbent shall not be constrained to keep the Church whether he will or no if the Patron will not accept it and because there is no person to whom the Resignation can be made but onely into the hands of the Patron it is good and although the Resignation be to one Patron and to a stranger it is good to both the Patrons and void as to the stranger and the more strong it is because of the following words to wit to all persons whatsoever which words involve all that have any manner of interest and then seeing it is found that D. who collated the Plaintiff and the Estate of both the Patrons although no agreement be found of the Patrons it is not materiall and the resting of the Plaintiff in the Church is good to give him power to take the profits by reason of the primer possession and although the Defendant did resigne but the Church onely yet it is good to all that appertains to the Church and that which the Defendant may have as Rector there 6 E. 3. is that if the Patron grant Ecclesiam that will passe the Avowson but Herlethen said that was in ancient time and therefore not so then to which the court seemed to agree and the court waived the Dispute of any other thing but onely the Resignation for of that onely the Jury doubted and was onely referred to the court but Popham chief Justice said that if the Patron would not collate any man to such a Donative there was no way to compell him but he is left to his own conscience and he might in time of the vacancy take the profits and sue for the Tithes in the spirituall court for such Donatives at first grow by consent of all persons who have any manner of Right or Interest to wit the Ordinary and Parishioners but Gawdy Fenner Yelverton and Williams against him that the Ordinary might compel him to collate any clerk for the Rectory is only exempted from the power of the Ordinary and not the Patron and that is onely as to charges to be taxed upon the church for the ordinary attendance in a Visitation and such like and Popham said that although the Church in execution of the charge is spirituall yet the patron may collate and a meer lay man as the King may make a temporall man a Dean which hath often happened but all the other Judges were against him in case of the person which is meerly spritual but as to the Deanery they did agree it for the function is temporall but yet Williams said that lay men who have Deaneries ought to have and at all
c. and that the Plaintif was sued there by J. S. and that hee was summoned and upon a nihill returned a capias issued according to the Custome c. And that he being an Officer there did arrest and the Court ruled him to plead the Custome particularly for holding the Court and to prescribe c. And here it is shewn that the Maior is a Justice of Peace And it doth not appear whether he did it as a Justice of Peace or Maior as 14. H. 7 8. A Justice of Peace cannot command his servant to arrest one without a Warrant in writing in his absence And Popham chiefe Justice said That although the Judges knew the Authority of the Maior by which they arrested men yet because it did not appear to them judicially as Judges it must be pleaded And a Justice of Peace cannot command his servant to arrest one if not in his presence which was granted And Fennor Justice said that the servant is not an Officer to the Maior as he is a Justice of Peace but the Constable and Walker also added that the Plea was that the Maior commanded to imprison him presently without shewing any cause which was held naught for the maior ought to temper his Authority according to Law For the Judges cannot imprison without shewing cause but them and the Maior both may command an Officer to arrest a man without shewing the cause for else before he shall be examined he may invent and frame an excuse and the accessories will flye away And Williams Justice finds that it was incertain for the Plaintif by what authority he commanded it whether as Maior or Justice of Peace and his power as a Justice of Peace the Judges knew by common Law but his power as a Maior they knew not if it be not shewed by pleading and Judgement HVggins versus Butcher Trin. 4. Jac. The Plaintif declared that the Defendant such a day did assault and beat his Wife of which she dyed such a day following to his damage 100 l. And Serjeant Foster moved that the Declaration was not good because it was brought by the Plaintiff for a Battery done upon his Wife And this being a personall wrong done unto the woman is gone by her death And if the woman had been in life hee could not have brought it alone but the woman must have joyned in the Action for the damages must be given for the wrong offered to the body of the woman which was agreed And Tanfield said that if one beat the servant of J. S. so that he die of that beating the Master shall not have an Action against the other for the battery and loss of service because the servant dying of the extreamity of the beating it is now become an offence against the Crown and turned into Felony and this hath drowned the particular offence and prevails over the wrong done to the Mr. before And his action by that is gone which Fennor and Yelverton agreed to BRown versus Crowley Pasch 5. Jac. Action of Trespass brought against Croyley for wounding the Plaintif upon the hinder part of the left legge being rendred in Latin super posteriorem partem levis libaei and the Jury found for the Plaintiff And Harris moved in Arrest of Judgment for hee said that these words levis libaei made the Declaration vitious for the incertainty for he said that levis signified light and it was an improper word for left and that judgment ought to be respited for the incertainty And Yelverton argued that judgment ought to be given for the Plaintiff for he said the Declaration was not vitious for if the Plaintiff had declared generally that he had wounded broken or evill intreated him and had omitted those other words it had been sufficient and then the adding of those words which were not materiall but for damages did not make the Declaration vitious and he said that levus leva levum was Latin for left And whereas he hath said that he strook him super posteriorem partem levis libaei where it should have been levis libaei it was but false Latin and the Declaration shall not be made naught for false Latin And Popham said that hee shewing upon which part of the body the wound was were laid only to incense damages for the Declaration had been sufficient though they had been omitted And Justice Fennor agreed to Popham and he said it had been judged that where a man brought an Action against another for calling him strong Theife and the Jury only found that he called him Theife but not strong Theif yet the Plaintiff recovered for this word strong was to no other purpose then to increase dammages and Judgement was given for the Plaintif VIccars versus Wharton Pasch 5. Jac. Viccars brought an action of false imprisonment against Wharton and others and shews that he was imprisoned two dayes and two nights without meat or drink The Defendants come and shew that King Edward the 1. by his Letters Patents did incorporate one Village in Nottingham-shire with Bailiffs and Burgesses and that the King did ordain and make those Burgesses Justices of the Peace there and that the Defendant was Bailiâ—â— and a Justice of Peace there and that the Plaintiff did speak divers opprobrious and contumelious words of the Defendant by reason whereof they imprisoned him And shews further that the Bailiffs have used from the time of the making their Patent to imprison the disturbers of the Peace and it was held a naughty plea for a custome could not be shewn in such a manner And Tanfield held in this case that a man could not prescribe to be a Justice of peace but Justice Williams held he might prescribe to be a conservator of the Peace And Tanfield held that the King might grant that all the Burgesses and their Heires should be Burgesses which Justice Williams denyed HAll versus White Pasch 5. Jac. An action of Trespass brought against the Defendant for impounding the Plaintiffs Cattel the Defendant justifies for Common And upon that they were at issue in Derby-shire and the Jurors being sworn the Bailiff found one Bagshaw one of the Jurors rending of a Letter concerning the said cause and shewed it to the Judg and a verdict given by the Jury And this matter moved in the then Kings Bench to quash the verdict but denyed by the whole Court because the Letter and the Cause was not certified by the Postea and made parcell of it for otherwise the examination of that at the Barre after the verdict shall never quash it And so it was adjudged between Vicary and Farthing 39. Eliz. where a Church Book was given in Evidence of which you shall never have remedy except it be entred and made parcell of the Record BVtler versus Duckmonton Trin. 5 Jacobi In Trespasse upon a speciall Verdict the Case was that no demised Land to a woman if she should live sole and unmarried
H. 6. 46. be it true or not and if it be not true the party may have his action against the officer which doth it and it was adjudged in Fullers Case in the Kings Bench that the high Commissioners may imprison and impose a fine for Heresie and Schisme and it was also resolved that Poligamy before the Statute of the 3. of King James was punishable before the high Commissioners for this was an heynous crime otherwise the Statute would not have made it Felony and he said that it was agreed in the time of the last Queen Elizabeth that the high Commissioners should not meddle with any thing but only those five that is Heresie Schisme Poligamy Incest and Recusancy and with no others and it was moved that a Writ De causione admittenda lieth for that they would not allow of the submissions And the Justices would consider of that and the Prisoner was remanded and it was adjourned And at an other day it was moved by Nicholls Sergeant that the high Commissioners supposed for that that the Statute of 5. El. gives authority to the Queen and to her heires and successors to grant Commission to Visite Reforme Redresse Order Correct and amend all Errours Heresies Schismes Abuses Offences Contempts and Enormities whatsoever and that the Commissioners may execute all the premises according to the Tenure and effect of the said Letters Patents that by that they might fine and imprison at their pleasure But Coke chiefe Justice said that it appeares by the preamble of the said Statute that after the Statute was in the â—5 yeare of the Raigne of King Henry the 8. by which the ancient Jurisdictions Authorities superiorities and Prehemenences were united or restored to the Crown and by meanes of the said Statute his Subjects were continually kept in good order and were dâ—sburthened of divers great and intollerable charges and exactions before that time unlawfully taken and exacted untill such time as the said Statute of 25. H. 8. was repealed by the Statute of 1. and 2. of Phillip and Mary which said Statute of 1. and 2 of Phillip and Mary should be repealed and void by which it appeares that the Kings Subjects were greviously burthened with grevious and intollerable charges and exactions and yet in this time of usurped power of the Pope doth not challenge that he might Commit or Imprison or Fine in any case but in the cases especially mentioned in the last Case aforesaid and for that all the usurped power was annexed to the Imperiall Crown the which he called the clause of annexing the second was the clause of deputation and this was the clause of the Statute by which the Queen hath power to grant Commission to such persons being naturall borne Subjects as her Majesty her Heires or Successors shall thinke fit to Exercise Use and Execute under her Majesty all manner of Jurisdictons Privelidges and Preheminences in any wise touching or concerning any spirituall Jurisdiction in all her Majesties Dominions and to Visit Reforme Redresse Order Correct and amend all such Errors Heresies Schismes Abuses Offences Contemps and Enormities whatsoever which by any manner spirituall or Ecclesiasticall power authority or Jurisdictions can or may be lawfull Reformed Ordered Redressed Corrected Restrained or amended and the third he calleth the clause of execution by which power and authority is given to the Commissioners to Exercise Use and execute all the premises according to the Tenure and effect of the said Letters Patents And it seems it was not the intention of the Statute to give any power to the Commissioners which was not given to the Queen by this Statute for the clause of deputation shall not be more ample then the clause of annextion and then the clause of execution refers to the first too clauses as it appears by the words of that that is to use and execute all the premises according to the said Letters Patents and the premises are expounded by the first clauses that is Errors Heresies Schismes c. And the said Letters Patents refer all Letters Patents before mentioned where the persons are appointed to be naturall borne Subjects and the materiall manner of Jurisdictions Priviledges and Preheminences Ecclesiasticall Siprituall and to Visit Reforme Order Redresse Correct and Amend all such Errors Heresies c. Which by any manner of spirituall or Ecclesiasticall Power Authority or Jurisdiction can or may lawfully be Reformed Redressed Ordered Corrected Restrained or Amended c. So that it cannot be intended that they may proceed in any other forme but only according to the Ecclesiasticall power and Jurisdiction and no other for otherwise they may Fine Imprison and ransome any man at their pleasures which was never intended by the makers of the said Statutes But only to transfer the Power and Authority which at that time was in the Bishops which then were Papistes to the high Comissioners the which the King may alter at his pleasure and so he cannot the Bishops for they are nor displaceable after their consecration Michaelmas 8. Jacobi 1610. in the Common Place A Man was cited before the High Commissioners for Poligamy which was agreed to be a cause examinable punishable there and upon examination of the Cause the Defendant was acquit and yet he was censured to pay costs though that he was acquitted of the Crime and this Court was moved for a Prohibition and it was denyed for they may hold plea of Principall and then Prohibition shall not be granted for the accessary and the Lord Coke said that they have just cause of lawfulnesse of punishing the offence though they have not just cause of the Deed and peradventure it was very suspitious that he was guilty and for that he hath only God for his revenger Parkers Case THree were cyted to appeare in the Court at Chester for Tenths and treble damages demanded and also in the Libell it is suggested that the Land is barren and very unfruitfull and Prohibition was awarded against those joyntly and yet it was agreed that they ought to count upon the Prohibition severally Penns Case PEnn Parson of Ryton in the County of Warwicke sued for Tithes in the Ecclesiasticall Court before the Ordinary and the Defendant here pleads that the same Parson was presented upon a Symonicall contract and for that his Presentation Admission and Institution were void by the Statute of 31. Eliz. And the Symony was for that that it was agreed between the said Parson and another man that was Brother to the Bishop of Lichfield and Coventry who was Patron of the same Church That if he should procure three severall grants of three severall next avoydances to them severally granted to surrender their said severall grants and procure the said Bishop to present him when the Church became void that being then full of an old Parson being deadly sick that he would make to him a lease of parcell of the Tithes of his Rectory And the brother
cheife Justice and Williams Justice thought fit that he should not have a Prohibition for as well the reparations of the Church as the ornaments of that are meerely spirituall with which this Court hath nothing to do and Flemming said that such Tax is not any charge issuing out of Land as a rent but every person is taxed according to the value of the land but Yelverton and Fenner to the contrary that a Prohibition did lye for the same diversity which hath been conceived at the Barr and also they said that he which dwells in another Parish doth not intend to have benefit by the ornaments of the Church or for the Sextons wages and for that it was agreed by all by the cheif Justice Williams and the others that if Tax be made for the reparation of Seates of the Church that a forrainer shall not be taxed for that because he hath no benefit by them in particuler and the Court would advise Michaelmas 8. Jacobi in banco Regis HEnry Yelverton moved the Court for a Prohibition to the Admiralty Court and the case was there was a bargain made between two Merchants in France and for not performance of this bargain one libelled against the other in the Admiralty Court And upon the Libell it appeared that the bargain was made in Marcellis in France and so not upon the deep Sea and by consequence the Court of Admiralty had nothing to do with it and Flemming cheife Justice would not grant Prohibition for though the Admiralty Court hath nothing to doe with this matter yet insomuch as this Court cannot hold plea of that the contract being made in France no Prohibition but Yelverton and Williams Justices to the contrary for the bargain may be supposed to be made at Marcellis in Kent or Norfolke or other County within England and so tryable before us and it was said that there were many presidents to that purpose and day given to search for them Note upon a motion for a Prohibition that if a Parson contract with me by word for keeping back my owne tithes for 3. or 4. years this is a good bargain by way of Retayner and if he sue me for my Tithes in the Ecclesiasticall Court I shall have a Prohibition upon this Composition But if he grant to me the Tithes of another though it be but for a yeare this is not good unlesse it be by Deed see afterwards Westons Case A Merchant hath a Ship taken by a Spaniard being Enemy and a moneth after an English Merchant with a Ship called little Richard retakes it from the Spanyard and the owner of the Ship sueth for that in the Admiralty Court And Prohibition was granted because the Ship was gained by Battaile of an Enemy and neither the King nor the Admirall nor the parties to whom the property was before shall have that according to 7 Ed. 4. 14. See 2. and 3. Phillip and Mary Dyer 128. b. Michael 8. Jacobi 1610. in the Kings Bench. A Man sues an Executor for a Legacy in the Spirituall Court where the Executor becommeth bound by his deed obligatory to the party to pay that at a certain day befoâ—e which this suit was begun in the Spirituall Court and the Executor moved for a Prohibition and it was granted for the Legacy is extinct but by Williams if the Bond had been made to a stranger the Legacy is not extinct Fenner seemed that it was so Hillary 1610. 8. Jacobi in the Kings Bench. Robotham and Trevor THe Bishop of Landaff granted the Office of his Chancellor-ship to Doctor Trevor and one Griffin to be exercised by them either joyntly or severally and it was informed by Serjeant Nicols that Dr. Trevor for 350. l. released all his right in the said Office to Griffin so that Griffin was the sole Officer after died and that after that the Bishop granted the same Office to one Robotham being a Practitioner in the Civil Law for his life And that Doctor Trevor surmising that he himselfe was the sole Officer by survivor-ship made Doctor Lloyd his Substitute to execute the said Office for him and for that that he was disturbed by Robotham the said Doctor Trevor being Substitute to the Judge of the-Arches granted an Inhibition to inhibite the said Robotham for the executing of the said Office and the Libell contains That one Robotham hindered and disturbed Doctor Lloyd so that he could not execute the said Office And against this proceeding in the Arches a Prohibition was prayed and day was given to Doctor Trevor to shew cause for why it should not be granted And they urged that the Office was spirituall and for that the discussing of the Right of that appertaineth to the Ecclesiasticall Courts But all the Judges agreed That though the Office was Spirituall to the exercising of that yet to the Right it was Temporall and shall be tryed at the Common Law for the Party bath a Free-hold in this see 4. and 5. of Phil. and Mary Dyer 152. 9. Hunts Case for the Office of the Register in the Admiralty and an Assize brought for that and so the cheife Justice saith which was adjudged in the Kings Bench for the Office of the Register to the Bishop of Norwich between Skinner and Mynga which ought to be tryed at the Common Law And so Blackleeches Case as Warberton saith in this Court for the Office of Chancellor to the Bishop of Gloucester which was all one with the Principall case And they said that the Office of Chancellor is within the statute of Edw. 6. for buying of Offices And Warberton also cited the case of 22. H. 6. where action upon the case was maintained for not maintaining of a Chaplain of the Chamber in the private Chappel of the Plaintiff very well though it was spirituall for the Plaintiff hath inheritance in that But if it had been a parochial Church otherwise it shall be for the infiniteness of the Suits for then every Parishoner may have his action And so in manner of Tything the prescription is temporall and this is the cause which shall be tryed at the Common Law and Prohibition was granted according to the first Rule Hillary 8. Jacobi in the Common Bench. AN Attorney of the Kings Bench was sued in the Arches for a Legacy being Executor as it seems and it was urged that hee inhabited in the Diocess of Peterborough And for that that he was here remaining in London in the Tearm time he was sued here and upon that a Prohibition was prayed and it was granted accordingly For as the Lord Coke said Though that he were remaining here yet he was resident and dwelling within the Jurisdiction of the Bishop of Peterborough and he said that if one Lawyer cometh and remaineth during the Tearm in an Inne of Court or one Attorney in an Inne of Chancery but dwelleth in the Country in another Diocesse he shal not be sued in the Arches Master Brothers
observed with the feare of God And another Canon That custome of not Tything or of the manner of Tything if they paid lesse then the tenth part see Panormitan upon that seek of the Case between Vesey and Weeks in the Exchequer upon the Statute of 27. H. 8. for the dissolution of small Monasteries Also the Lord Darcy in quo warranto was discharged of purveyance by Patent granted by the King Edward 6. of such priviledges which such a one had and by the same reason the King shall be discharged of Tythes by the Act of Parliament also he remembred the Book of 10. Eliz. Dyer 277. 60. to be resolved in the point and also 18. Eliz. Dyer the Parson of Pekerks case 399. 16. upon the Statute of 31. H. 8. and so concluded and prayed judgment for the Plaintiffe and that the Prohibition should stand and it was adjourned Trinity 9. Jacobi Priddle against Napper UPon a speciall verdict the cause was The Prior of Mountague was seised of an Advowson and of divers acres of Land and the 20. of H. 8. the King licensed him to appropriate that and 21. H. 8. the Bishop which was Ordinary assented and after that the Church became void that the Prior might hold it appropriate and 27. H. 8. the Incumbent dyed so that the Appropriation took effect and was united to the possession of the Rectory Appropriate and also of the Land out of which Tythes were due to the said Prior in respect of the said Rectory and then the Priory is dissolved and the Impropriation and the Lands also given to the King by the Statute of 31. H. 8. which granted the Impropriation to one and the Lands to another And if the Patentee of the Land shall hold it discharged of the payment of Tythes in respect of that unity was the question And Harris Serjeant for the Defendant in the Prohibition that the unity ought to be perpetuall and lawfull as it was adjudged between Knightley and Spencer 2 Coke 47. a. cyted in the Arch-Bishop of Canterburies case and for that unity by or by lease for years or for two or three years as in the case at the Barre shall not be sufficient to make discharge of the payment of Tithes and so it was adjudged Pasche 40. Eliz. Rot. 454. between Chyld and Knightley that is that the unity of the possession ought to be of time that the memory of man doth not run to the contrary And in the argument of this Case it was said by Popham cheif Justice that if no Tithes were paid after the Statute that then it shall be intended that no Tithes were paid before the Statute and so he concluded and prayed Consulation see 2 Coke 48. a. The Arch-bishop of Canterbury for the reason by which unity of possession is discharged of payment of Tithes that is for that that some houses of Religion were discharged by Buls of the Pope and many were founded before the Councell of Lateran and for that it shall be infinite and in a manner impossible to find by any searches the means by which they are discharged the unity is no discharge in respect of it selfe for the reasons aforesaid and none may know if Tithes were paid or not before the union And if Tithes be not paid in time of memory by a house of Religion and they lease of that for years and receive Tiths then the lease expiâ—es two yeares before the Dissolution of the same house the King shall not be discharged of the payment af Tithes by the Statute of 31. H. 8. by Coke and Walmesley against Warburton and Foster Dorwood against Brikinden UPon the Statute of 5 Ed. 3. a man libelled in the Spiritual Court for Wood cut and a Consultation was granted Yet the Defendant in the Court Christian might have a new Prohibition if it appeared the first Consultation was not duly granted So if a man libell for Tithes for divers years and Prohibition is granted for part of the years and after that a Consultation is awarded yet the Plaintiffe may have a new Prohibition for the residue of the time notwithstanding the Statute of 50 Ed. 3. and that it be upon one selfe same libel Admirall Court NOte that the Admirall cannot imprison for any offence but if the Court hath Jurisdiction of the Originall cause and sentence is there given this sentence may be executed upon the Land 19. H. 6. But no Ordinary may meddle out of his own Diocesse 8. H. 6. 3. 2. H. 4. The Parson of Salt-ashes Case That this Court tooke notice of Jurisdiction of all Ecclesiasticall Courts and Ordinaries for they write unto them for tryall of Bastardy and Matrimony And there are 3. Legates First a born Legate as the Arch-bishop of Canterbury and Yorke Remes and Pylazam Second a Latere as all Cardinalls The third a Lagate given as those which have their Authority by commission and Lynwood Provinc saith that the Arch-Bishop of Canterbury as Arch-Bishop cannot meddle out of his Diocesse of Canterbury and his Peculiars but as a Legate borne which is in respect of his Office he hath prerogative and if a man inhabit in one Diocesse and ought to pay tithes to another which inhabits in another Diocesse there the Ordinary ought to prefer the suit to the Metrapolitan but seek what Ordinary shall transfer it Trinity 9. Jacobi 1610. in the Common Bench. Jones against Boyer HEnry Jones Parson of Bishopton sued Bowen the Executor of Holland the last Incumbent in the Arches for Dilapidations upon which a Prohibition was prayed upon the statute of 23. H. 8. for that that it was sued out of his Diocesse which was Saint Davids but it appears that the Vicar generall of the same Ordinary hath made generall request to the Metropolitan to determine that without shewing any cause speciall and if the inferiour Ordinary may transmit any cause but only for the causes mentioned in the statute of 23. H. 8. And if the causes ought to be expressed in the Instrument was the question note that the generall words of the statute of 23 H. 8. chap. 9. Rastall Citation 2. are afterwards many particulars or in case that any Bishop or any inferiour Judge having under him Jurisdiction in his own right and title or by commission make request or instance to the Arch-Bishop Bishop or other inferiour Ordinary or Judge to take treat examine or determine the matter before him or his substitute And that to be done in case only where the Law civill or Canon doth affirm execution of such request or instance of Jurisdiction to be lawfull or tollerable and for the better discussing of this question the Judges had appointed to heare two Doctors of the Civill Law which at this day attended the Court the first Doctor Martin said that these generall words have reference to the Executor and not to the maker of the request and this request may be made for all causes but ought to be made to him which hath
so these words of the Writ are not answered and so no Tenant is returned at all And it is not like to the Case in 2 H. 4. for there the Return was according to the Exigent of the Writ but here it is not so And to the first matter he intended and agreed that an Executor of an Executor may sue execution had by the first Executor insomuch that hee comes in in privity But he said that so it is not in this case and that there is no difference betwixt this case and the case cyted in Shelleys case that is that Administrator of Administrator shall not sue execution insomuch that he comes in peramount Administrator and accords with this Case 2 Eliz. in the Lord Dyer If two Joynt-Tenants are and one makes a Lease for years rendring Rent and dyes the Survivor shall not have the Rent insomuch that hee commeth in peramount him and to the other he intended that the speciall non-tenure is a good plea as well in Scire facias to have execution of damages as of Free-hold as in 24 Edw. 3. 31. and 5 H. 5. 1. and 9. H. 5. 11. It is resolved that in Scire facias speciall non-tenure is a good Plea and the books of 8 H. 6. 31. cyted before there is Joynt-tenancy pleaded to one part and speciall non-tenure to the other part by Lease for years and the question is if it might be pleaded a part And in 8 Edw. 4. 14. Is Scire facias upon Recovery by Writ of Right Patent in base Court and that the Defendant cannot plead release of the Lessor and so the joyning of the Mise may be forfeiture of his Estate And he said that it was adjudged in 16 Edw. 3. Scire facias 5. that scire facias to have execution of a Fyne shall not be sued against a Lessee for years but against him which hath the Free-hold but where Debt or Damages are to be recovered there it may be sued against him which hath only Lease for years insomuch that the possession is to be charged and so he concluded and prayed Judgement for the Defendants and it is adjourned Michaelmas 1611. 9. Jacobi in the Common Bench. Crogate against Morris THe case was this Copy-holder prescribes to have common in the Waste of the Lord and brings action of Trespasse against a stranger for his Beasts depasturing upon the Common there and Harris Serjeant argued that this action is not maintainable for two causes First insomuch that he is a Commoner for as it is said by Brook Justice 12. H. 8. 2. a. Commoner cannot have an action of Trespasse for the Common is not Common but after the Commoner hath taken that and then before that he hath taken that he hath no wrong nor damage but the damage is to the Tenant of the Land As if a Lessee for years be outed and he in reversion recovers in Assise hee shall not have damage insomuch that the damage was made to the Lessee and the 22 Assis 48. 15 H. 7. i 2. b. agreed that Commoner cannot maintain action of Trespas nor no other but the owner of the Soil but 13 H. 8. 15. by Norwich 15 H. 7. 6. 5 H. 7. 2. 24 Edw. 3. 42. Commoner may distrain and avow for doing damage 2. He intended that this action is not maintainable insomuch that every other Commoner may also have the action of Trespasse for if it be wrong to one it is wrong to every one of them and so the stranger shall be infinitely punished as in Williams Case 5 Coke 72. b. where it was adjudged an action of the Case doth not lye for the Lord of the Mannor to prescribe that a Vicar ought to administer the Sacraments in his private Chappell to him his Men-servants and Tenants within the Precincts of the said Mannor and adjudged that it doth not lye insomuch that then every of his Tenants might also have action and so the Vicar shall be alwayes punished So in 27 H. 7. 27. a. A man shall not have an action upon the Case for nusance made in the high way so it is 5 Ed. 4. 2. for trenching in the high way see 33 H. 6. 26. a. accordingly and so he concluded that the action is not maintainable and prayed Judgement for the Defendant Dodridge the Kings Serjeant to the exception which hath been made by the other party that the Plaintiff ought to averr that he hath Beasts which ought to Common there and that his Beasts have lost their Common that need not to be averred but it shall be pleaded by the other party for if he have distrayned the Beasts of a stranger doing damage he need to averr no more in this action and to the other matter and the two Objections which have been made by the other part First that the Commoner hath no right to the Common till he have taken it by the mouth of his Beasts to that he said that the Commoner hath right to that before that it be taken by such mouths of his Beasts and notwithstanding that it seems by the time of Ed. 1. That Commoner cannot grant his Common till he have Seisin of that yet 12 H. 8. is otherwise and that a Commoner may have an action the name implyes for he hath Common with others and a stranger which is no Commoner cannot do wrong but this is damage to him and he cyted Bracton 430. that there are two forms of Writs 1. Cursitory Writs 2. Commanding Writs The first of those which are formed and are of course and the others such of which there is no form but are to be formed by the Masters of the Chancery according to every particular Case So that there is not any Case but that the Law affords a Writ and remedy for that as in 28 Edw. 4. 23. Action upon the Case was framed against an Officer which gave priviledge to one as his servant which was not his servant and it is not like to the Case in 11 H. 4. 47. a. where a School-master brings an action upon the Case against another for erecting of a School in the same Towne to his damage but this was damage without Injury But here the Commoner hath received wrong and damage but yet he agreed that the Commoner could not have action of Trespass why he broke his Close for that is proper for the owner of the Soile But it hath been agreed to him that he might distrain them doing damage and the reason of that is insomuch that he hath received damage and amends may be tendered unto him in recompence of his damages without any regard to other Commoners as it is agreed in 24 Edw. 3. 42. And to the Objection that if one Commoner may have action then every Commoner may have the action and so the stranger shall be infinitely punished And to that he said it is a Publique losse and private and when the publique wrong includes private damage to any man there he
Proviso that if the sayd John disturbed the Executors of taking his Goods in his House that then the sayd use and uses limited to the sayd John Francis and his Heires shall cease and after declared that his intent was that in all other points his Will should be in his force and it was pleaded that Iohn did not suffer the sayd Executors to take the sayd Goods in the sayd House and if his Estate for years or in Tayl or Fee-simple shall cease was the question and it seemed to the Judges that the Condition shall not be Idle but shall have hiâ— operation as it appears by Hill and Granges case and the Lord Barkleyes Case in the Comment and the Lord Cheneyes Case Coke And it seems also that it shall not be referred to Estate in Fee simple for then it shall be void and it shall not be referred to a Tearm for it is limited to an Estate limited to the said Iohn and his Heires but it seemeth it shall be referred to an Estate tayl only as it is 2 and 3. P. and Mary Dyer 127. 55. 11 H. 7. 6. But the case was adjudged upon one point in the Pleading for it was not pleaded that Iohn Francis had notice of the Devise nor that he had made any actuall disturbance and peradventure he entered as Heir and had no notice of the Condition and when the Executors came to demand the Goods which were belonging to the Heir and annexed to the House and he sayd that it doth not appear to them to prove that an express notice was given in this case the Books of 43 Assise where a man was attaint and after was restored by Parliament and a Writ being directed to the Esceator the Escheator returns that he was disturbed and upon Scire facias the disturber pleads that he had no notice of the sayd act of restitution and for this he was excused of Disturbance And see 35. H. 6. Barr 162. Michaelmas 7. Jacobi 1609. In the Common Bench. Waggoner against Fish WAGGONER brought a Writ of Priviledge supposing that he had a suit depending here in the Common Bench which was directed to the Maior and Sheriffs of London and upon the return it appears that 4. Iacobi an Act of Common Councell was made that none should be retayler of any Goods within the same City upon a certain pain and that the Chamberlain of the said City for the time being may sue for the said penalty to the use of the sayd City at any of the Courts within the said City and that the Defendant hath retailed Candles and held a shop within the sayd City being a stranger and against the sayd Act and for the sayd penalty the Chamberlain hath brought an Action of Debt within the sayd City according to the sayd Act of Common Councell and upon the return it appeares that by their Custome the Maior and Aldermen with the Assent of the Commoners of the said City may make By-Laws for the Government of the sayd City and that the sayd custome and all other their Customes were confirmed by Act of Parliament and upon this it seems that though there be not remedy given for this penalty in another place then in London that yet if it be against Law he shall not be remanded and if a Corporation hath power to make By-Laws that shall be intended for the Government of their ancient Customes only and not to make new Lawes see 2 Ed. 3 Iohn De Brittens Case but it seems if this By-Law be for the Benefit of the Common-Wealth that it shall be good otherwise not and it was Adjourned see Hillary next insuing for then it was adjudged that he shall not be remanded see afterward Michaelmas 7. Iacobi It was adjudged NOte that this Tearme was adjourned untill the Moneth of Michaelmas by reason of the Plague and upon the adjournment this insued and was moved by Yelverton and Crook at the Bar and the Case was this Michaelmas 7. Iacobi 1609. In the Common Bench. POynes being an Infant levies a Fine and in Trinity Tearm last past brought his writ of Errour in the Kings Bench and assigned for Errour that at the time of the Fine levied was and yet is within age and prayed that he be inspected and insomuch that he had not his proofs there he was not inspected but Dies datus est usquâ— Octabis Michaelis Proximas at which time came the said Poynes the day which was wont to be the day of the Essoyn and prayed Justice Crooke which was there to adjourn the Tearm to inspect him and to take his proofs who did inspect him accordingly De bene esse and now before the Moneth of Michaelmas the Infant came of full age and if this inspection were well taken and what authority the Judge had upon that day to adjourn was the question And Flemming cheife Justice sayd that the day of Essoyn is a day in Tearm and that the Court was full though there was but one Judge and if the inspection had been the day of the Essoyn and before the fourth of the Post he had come of full age this shall be very good but the doubt rose as the case is if upon the day of Adjournment the Judge had power to do any thing but to adjourn the Tearm and for that it was appointed to be argued and for the Argument of that Quere of my Author Lane Michaelmas 7. Iacobi 1609 In the Common Bench. Rivet Plaintiff Downe Defendant IN an action upon the case upon an Assumpsit the case appears to be this Copy-holder makes a lease for a year according to the custome of the Mannor the Lord distrains the Farmer of the Copy-holder for his Rent and the Copy-holder having notice of that comes to the Lord and assumes that in consideration that the Lord should relinquish his Suit against his Farmer touching the same distress he would pay the Rent by such a day the Lord delivers the Distress and for default of payment at the day brings an Action upon the case and upon Non Assumpsit pleaded Verdict passed for the Plaintif And Barker Serjeant came and moved in arrest of Judgment First that a man cannot distrayn a Copy-holder but he ought to seise but Williams Justice and others to the contrary and by him if a man makes a Lease at will Rendring Rent he may distrain for this Rent 9 H. 7. 3. The case of Rescous Secondly He moved that when the Lord distraines that now the Tenant hath cause of Action that is Replevin and for that it cannot be sayd Sectam suam and so the consideration failes but all the Court against that and that this was a good consideration and by Flemming cheife Justice Distress is an Action in it self because this is the cause of a Replevin and when the Tenant brings his Replevin and the Lord avowes now is the Lord an Actor and so it is secta sua and by him secta is not
Office by Deputy without special words of Deputation in the Patent for he conceived that it is not meerly an Office of trust for he hath not the keeping of any Records for the Courts of which he was steward were not Courts of Record and yet that all the Books are that ancient grants of Office of stewardship contain that the Patentee may exrecise Per se vel per sufficientem deputatum suum though they are not of Courts in which the steward is Judge but the suitors but if a Grant be of such an Office of Inheritance then there needs words of Deputatum for here it is apparent that there was not special trust reposed in the Patentee And he also agreed that if it be not an Office of profit the Grantor may enter and out the Patentee but the fee shal remain as it appears by the 31 H. 8. Brookes Novell Case and 18 Ed 4. And it was not the intent of the Queen that the Earl of Rutland should execute the Office in person for that should be an undervaluing of him the which he sayd was proved by Sir Robert VVrothes Case in the Commentaries where an Officer to the Prince was discharged of his attendance by alteration of quality of the Prince and making of him King and yet the Fee remained And to the second it seems that the patent hath expresse words of Deputation And the third Grant which hath a reference to the Grant precedent and al the words being put together make a perfect Grant and this such construction hath been alwaies made of Grants of the King as it appears by Sir John Mullyns Case 6 Coke 56. And Justice VVindhams case 5 Coke 7. a. So if the King makes a Lease of a Mannor except a Grove next to the Mannor this shal be intended next to the Mannor House for otherwise it shal be out of the Mannor and so the exeption voyde but Coke and Foster doubted of that And to the third point that the Action was maintainable Vi armis for when the Deputy of the Earl of Rutland proclaimed the Court as Deputy of the Earle of Rutland and these Defendants proclaimed that as stewards of the Earl of Shrewsbury and after adjourned that and after held all the Courts and received the profits it seemed to him that for this outing and disturbance which is disseisin action upon the case lies Quare vi armis as wel as in the Book of Entries 15. two men had Warrens adjoyning and one of them puts Cats and other vermine into the Warren of the other to destroy it and the Action of trespasse Vi et armis lyes and so for menace action of trespas Vi armis lies as it appears by 3 H. 4. and this disturbance is sufficient to maintain an Assise and upon that he concluded that the Plaintiff in the Action ought to recover and to have Judgment And Harris the younger Serjeant argued that the Grant is not good for default of certainty as to this Grant of Stewarship for the Grant is of the Office of Stewardship of the Mannor of Mansfeild and doth not shew where the Mannor is nor in what County and it appears and is put for a Rule by Hussey cheife Justice in the 25. of H. 7. 60. b. That when a man wil have advantage of Letters Patents of the King it behooveth that they extend certainly to things of which he wil have advantage see 2. R. 3. 7. a. By Hussey 44. Ed. 3. 17. 5 Ed. 4. Garters Case 17 Ed. 3. 15. and Doddingtons Case which is Hill and Pext 2 Coke 1. 31. b. If the Town be misnamed it is good if there be another certainty but if it be not named at all otherwise it is And to the Point moved by Hutton he concived that this Office of Stewardship could not be exercised by a Deputy as it appears by Littleton in his Chapter of Estates upon condition where he saith that there are Estates upon condition in Law of which Stewardship is one fol. 89. Sect. 379. That cannot make Deputy without speciall Grants and with this agreed Sir Henry Nevills Case Com. 379. and Long 5. Ed. 4. 26. b. and by 21 E. 4. 20. and Sir Henry Nevills Case before he could not grant over his office but if he do not attend to the Execution of that it is forfeiture 11 Ed. 4. so if he wants skill 29 H. 6. 42. Per totam curiam He conceived that the Law doth not make any difference between the person of an Earl and another to the executing of this Office and that the words of the Patent do not contain words of deputation for in the Grant the words are Habendum Officium predictum breifly written Cum omnibus vadis feodis eidem Officio sue ratione ejusdem c. The which last words are expository of the first that is that it shal be intended that the Office is contained in the last Grant and shal not be referred to a Grant precedent in which the Stewardship is contained and also he conceived that this Action upon the case doth not ly Quare vi armis as it appears by Fitzherberts Naturabrevium 86. H. Where it is sayd that in trespass upon the case these words Vi armis are contained in the Writ shal be sufficient cause to abate the Writ see 11 Assise 25. He which councels to make Disseisin shal not be a Disseisor with force for he ought to do some manual Act either to the person or to the possession see 41 Ed. 4. 24. a. and 44. Ed. 3. 20. b. And so he concluded that this Action is not maintainable and that Judgment ought to be given for the Defendant for the causes aforesayd This Case was argued again by Nicholls Serjeant for the Plaintiff and by Dodridge the Kings Serjeant for the Defendants to the same intent and it was urged by Dodridge that the Patent containes three several expresse Grants which are distinct Grants in themselves as there be three distinct severall Patents though they have but one Parchment and one Seale and if the King grant the Office of parkship of two parks by one self same Grant if the Patentee be disseised of them he may have several Assises though that it be but one self-same grant And he agreed that the words officium predictum in the 3. grant shall be intended officium predictum and so supply the defect in the second grant if it were not limitation of the estate in the second grant but for that that the second grant was perfect in it self there need not of necessity any such construction and that these words shall be referred to the last words appeares by the last words of the habendum that is cum vadis feodis eidem officio aut ratione ejusdem officij and these Relatives are exposition accordingly And to the objection of the clause of Assistance in the end of the Patent he answered that if the grant were ill
action is well maintainable Vi armis as Quare Impedit for disturbance by word or presentment by word And it is also found that the Defendants did take all the profits and that the Deputy of the Plaintiff came to the usual place where the Court was kept and that could not be intended to be out of the Mannor And so for these reasons he concluded that Judgement should be given for the Plaintiff And Coke cheife Justice argued to the same intent that is that the Plaintiff ought to have Judgment And first he conceived that the Patent is good notwithstanding the uncertainty that the Mannors are not named in what Counties they are either in England France or Ireland for the Mannor is named very certain by which it may be granted though it be in the Kings case as it appears by 32 H. 6. 20. where the King grants all Mannors Messuages c. which were parcell of the possessions of I. S. attaint and good And such grant was made to Charles Brandon Duke of Suffolke and adjudged good though that the person of a man is more incertain then the Mannor yet Id certum est quod certum reddi potest And 39 Ed. 3. 1. in the Abbot of Reddings case where a grant was made to the Abbot and his Successors that the Prior and Covent shall take the profits in time of vacation Fitz. Na. Bre. 33. b. And 23 Ed. 3. 20. The King grants to the Queen the Barrony and all Mannors c. till Iohn of Gaunt be able to govern himselfe and that shall be intended till the Law intends him able to govern himself and Mannor is very certain of which a view shall be awarded The second exception which was taken to the grant was for that that it was to take effect at the ful age of the Earl And after it is recyted in the Patent that he was of full age before the making of the Patent and so by consequence the Patent is to take effect from the time that it was past And to that he said that it shall be intended to the profits of the Office only for it appeares by the Patent that the Queene had granted it to another during his Minority That is the office And to the third mattter That is if hee cannot make a Deputy then he hath forfeited the said Office by the not using of it And to that he said it appeares by Waltons case 10 Eliz. Dyer fol. 270. That if a man grants a Fee pro concilio impendendo or keeping of Courts the Fee shall not be forfeited without speciall request to the Patentee to give Councell or to hold his Courts for hee doth not know if the Grantor will have his Courts held or not and so it is 39 H. 6. 22. Brewens case where it is also agreed that it shall be no forfeiture of an office without speciall request to hold the Courts or to give Councell But in the case of the Queen otherwise it is for she ought not to make demand in case of Rent nor Condition though that it be within the Statute of 32. H. 8. And yet it was argued in Sir Thomas Hennages case that if the King make a Lease for years upon condition to cease this shall cease without office upon the breaking of the Condition but a Lease for life shall not cease without office though that the Condition be broken And so if the King grants an Office for life this shall not be avoided without Office And he doubted the case of the Lease for yeares And also he agreed that the Grantee of a Stewardship cannot make Deputy to exercise his Office without speciall words in the Patent But if the Office be granted to him and his Heires or to him and his assignes it is sufâ—â—cient without other words to make a Deputy And also he sayd that the word Steward is the name of an Office and is derived of Steed and Ward which are Saxon words and intend the Keeper of the place which the party himselfe ought to hold and it appeares by Cambdem and Lambert And so the word Senescalls also signify for this is but a Custos sive officiarius loci See Fleta liber 2. chap. 72. Senescallum providebit Dominus circumspectum fidelem Modestum pacificum qui in consuitudinibus c. Jura Domini sui teneri c. Quique balivos suos instruere potest Cujus officium est curia maneriorum c. And a Deputy is a person authorised by the Officer in the name and right of the Officer and for all that he doth the Officer shall answer for he is but as a shaddow of the Officer But assignee is in his own right and he shall answer for himselfe and forfeiture by assignee of Tenant for life shall not be forfeiture of the reversion 39. H. 6. And he agreed that a Marshall Steward Constable Bayliff and such like cannot make Deputies without speciall wordes in the Grant as it appeares 39. H. 6. 11. Ed. 3. 10. Ed. 4. 14. 17. and 7. 21. Ed. 4. Nevills case in the Com. and Littleton And to the exceptions which have been taken to the Writ and Count he saith that an Action of Trespasse which is founded upon the case doth not lye Vi et armis where the point and cause is Action is supposed to be made Vi et armis and for that he takes difference between Causa causans and Causa causata for where the matter which is supposed to be done Vi armis is not the point of the Action But the cause of the Action there lies very well Vi armis But wherein the point of Action is supposed to be made Vi armis there the Writ shall abate As if a man brings an Action of Trespasse for casting dung into a River by which his Land is drowned in this case an Action of Trespasse upon the case Vi armis lyeth very well for here the casting in of the Dung is but Causa causans And the drowning of the Land is Causa causata 8. R. 2. And so disturbance to hold a Leet by which he hath lost his offerings 19. R. 2. 52. And the Earle hath election to have Trespasse or Assise though it be not Manurable As if a man prescribe to have seven pence of every Brewer which sells strong Beer for disturbance to have the seven pence Action upon the case lyes for this disturbance is Dissesin 15. Ed. 4. 8. 14. Ed. 3. 4. 1. Ed. 5. 5. 19. R. 2. Action upon the case 51. And to the objection which hath been made that disturbance found by the Jury is not the same disturbance which is mentioned in the Count for in the Count the disturbance is supposed to be made Vi Armis but the Jury do not find any distubance to be made Vi Armis But this notwithstanding it seemes that the Count is good As if a Sheriff enters a Franchise and executes
him according to his promise The Defendant pleads Non assumpsit And a Verdict for the Plaintiff and moved in Arrest of Judgement for that the Plaintiff at the time of the Contract was an Infant and that he could not perform his promise by reason of his Infancy and therefore the promise void and another Exception for that it was not alleadged in what sum the Plaintiff and his Surety offered to be bound and Judgement was that the Plaintiff Nihil capiat per breve JAcob versus Songate Trin. 9. Jac. rotulo 2776. An Action upon the case brought for this word Perjured The Defendant justifies that it was found by Verdict that the Plaintiff was perjured but no Judgement entred upon that Verdict And whether the Plea were good being there was no Judgement was the Question and it was adjudged no Bar because no Judgement was given in the first-Action and so Judgement entred for the Plaintiff CRuttall versus Hosener Pasch 16. Iac rotulo Action of the case for these words He meaning the Plaintiff hath caught the French Pox and brought them home to his Wife And Judgement for the Plaintiff THornton versus Iepson The Plaintiff being a Currier brought an Action upon the case for these words He is a common Barretor but the words would not lie for a man of that Profession but would lie for a Justice of Peace or Lawyer IReland versus Smith Hill 9. Iac. rotulo Action upon the case brought for these words You Norgate take part against me with Ireland who is a Papist and hath gotten a Pardon from the Pope and can help thee to one if thou wilt The Plaintiff laid a communication between the Defendant and Norgate and alleadges himself of the age of 40. years and not above because it might appear to the Court that he was born within Queen Elizabeths Reign The Court held the Action would not lie as it was adjudged in Halls case and for this word Papist no Action will lie If I deliver my Goods to you to keep and I request them and you deny the Delivery of them now an Action of Trover will lie otherwise it is without a Deniall if I distrain Cattle I must not use them WArter versus Freeman Mich. 15. Iac. rotulo 1941. Action upon the case brought for that the Defendant sued out a Fieri facias upon a Judgement which he had against the Plaintiff upon which Judgement the Defendant had before sued out a Fieri facias and the Sheriff of Oxford had upon the first Fieri facias returned that he had levied the Debt and Damages and that they remained in his hands for want of Buyers and the Defendant knowing that the Sheriff had levied the Debt and Damages and intending to charge him again prosecuted another Fieri facias and that the Sheriff had again levied the said Debt and Damages and hath paid the Debt and Damages to the Plaintiff to wit at Westminster in Com. Middlesex where the Action was brought and Judgement after Debate was given for the Plaintiff though the Defendant alleadged that the Fieri facias was an Act in Law and so no cause of Action against him PArkhurst versus Powell vic Denbigh Mich. 15. Iac. rotulo An Action of the case for a false Return of a Capias utlagat and declares that he prosecuted a Capias utlagat directed to the Sheriff of Denbigh where the Defendant inhabited and delivered the said Writ to the Sheriff to be executed and the Defendant being then in the company of the Sheriff and might safely have arrested him did not but suffered him to escape and returned that he was not to be found and upon Not guilty pleaded it was tried in the County of Middlesex where the Action was brought and moved in Arrest of Judgement that the Triall ought to be in Denbigh because the not arresting was the principal matter but because the Action was grounded upon double matter the Plaintiff had his Election to bring his Action either in the County of Denbigh or Middlesex by the whole Court BLand versus Edmonds Pasch 16. Jac. rotulo 444. Action upon the Case brought for these Words Videlicet George Bland is a troublesome Fellow and he did combine with thee to trouble the Countrey and I hope to see thee at the next Sessions indicted for Barratry or for sheep-stealing as George Bland was at the last Sessions for Bland was indicted the last Sessions for sheep-stealing And it was held by the whole Court that those Words would not bear an Action the Plaintiff layed the Words to be spoken to one Jo. Eagle and the Declaration was held naught and insufficient because it was not averred that the Plaintiff was not indicted at the Sessions BRadshaw versus Walker Hill 16. Jac. rotulo Action upon the case brought for these words Videlicet Thou art a filching Fellow and didst filch from A. B. 4. l. And Judgement that the Plaintiff should take nothing by his Writ for it shall not be intended that he stole the money ADams versus Fleming Hill 16. Jac. rotulo 890. Action of the case brought for these words Videlicet He hath forsworn himself before the Councel of the Marches meaning the Councel of the Marches of Wales in the Suit I had against him there and I will sue him for Perjury there And after Verdict for the Plaintiff moved in Arrest of Judgement that the words were not actionable for their uncertainty because the Court could not take notice that they had authority to hold plea in matters of record Judgement for the Plaintiff for these words Thou art a false forsworn Knave for thou didst take a false Oath before a Judge of Assise to hang a man GOre versus Colthorpe Trin. 5. Jac. rotulo The Declaration was in consideration that the Plaintiff would give credit to E. C. then servant to the Defendant for any thing the said E. should deal for to the use of the Defendant with the Plaintiff promised that he would see the Plaintiff contented that which the said E. should deal for with the Plaintiff for the use of the Defendant any way when the said Defendant thereof after it should become due should be requested and a special Verdict by which it was found that the Defendant promised to see the Plaintiff contented that which the above named E. C. should deal with the Plaintiff for the use of the said Defendant any way The Judgement of the Court was that the Verdict did not maintain the Declaration because for collaterall matters which are not Duties a Request is material and are not like a Duty as for Debt which is due and no Day of payment expressed that shall be alleadged to be when he shall be thereunto requested generally For if I sell my Horse for ten pounds and no Day of payment that shall be alleadged in the Count Cum inde requisitus esset And one case of Peters was cited which was
Damages c. An Assise brought and the Grant was of the Herbage and Pannage c. and whether this were good or no some held it void for the incertainty of the Grant when it should begin Sir Edward Cook held the Grant good for if the King make a Lease for Life and granteth the Land without reciting the state to one for life this is a good Grant for Life of the Reversion to begin immediately after the Death of the Tenant for Life Trin. 7. Jacobi rotulo 35. An Assise brought for the Office of a Harald at the Funeral of the Earle of Exceter and the great Question was where the view should be made and it was alledged that it should be made in the place where he exercised his Office but the Court doubted of that but they were examined of the view made in the Abbey of Westminster being the place where the Funeral was performed and the Court were of opinion that in Dower where Tithes are demanded no view lies for of things that are invisible no view lies but the Tenant in such case shall be denied it SIr William Saint Andrew brought an Assise de Darrein Presentment against the Arch-bishop of York the Countess of Shrewsbury and F. H. for the Church of O. in the County of Nott. The Archbio p and H. appeared and the Countess did not appear and though the Countess made Default yet the Assise was not taken against her by Default but a re-summons was awarded against the Countess and the same Day given to the Arch-bishop and H. and a Habeas Corpora against the Recognisors And note the Tenants that appeared pleaded in abatement that a Writ of Quare impedit for the said Church was hanging in such a Court between the same parties and the Assise was brought afterwards and with this agrees the Register and it was adjudged a good Plea The Writ was returned in this manner Pleg de prosequend John Doo Richard Roo The within named Arch-bishop and Countess are attached and either of them is attached per Pleg H. S. N. J. And the within named H. hath nothing in the Sheriffs Bailywick by which he may be attached nor hath a Baily within his Liberty nor is therein found and the residue of the Execution c. and Judgement given that the Writ should abate and the like was in the Earle of Bedfords case where two Quare impedits were brought one after another and the last Writ abated J. Lovelace versus Baronissam Despencer R. Harvey Clericum Trin. 12. Jac. rotulo 74. de Darrien Presentment for the Church of M. And the said H. being solemnly exacted came not and the Sheriff made a Return that he was summoned by J. O. and W. C. and therefore the Assise was to be taken against him by Default but the said Baromsh by T. her Attourney faith the Assise ought not to be so taken and confesses the said J. was the person last presented but conveys a Title to her self of the Mannour to which the presentation belongs and that being so seised the Plaintiff in the Assise by usurpation presents the Clerk in the Count whereupon the Defendant brought a Quare impedit and hanging the Writ the Clerk in the Count dies and the Plaintiff presented the Clerk that made Default who by vertue of that presentation is yet Parson of the said Church by which she is seised of the Advowson as in her former Estate and so she saith that the Presentation of the said J. by the said L. made ought not to prejudice her and a Demurrer upon this Plea and that the Assise should remain to be taken c. for want of Recognisors and the Sheriff was commanded to distrain them c. and Judgement given that the Plea was good but quaere of the Declaration whether sufficient because it was not alleadged that he that presented was seised of the Advowson Pasch 8. Jac. rotulo 31. An Assise brought for the Office of Clock-keeper of and it was held that it must be an ancient Office and because they could not prove that it was an ancient Office the Plaintiff was non-suit and the Plaintiff shewed a Grant of the same in E. 6. time but that was held no ancient time Pasch 6. Jacobi It was held by the whole Court that an Assise of Sadler to the Queen would not lie being granted to one by the King but was held void by the whole Court for the King cannot make an Officer to the Queen and by the Patent no place was expressed where he should injoy and exercise his Office and take the Profits and therefore the Jury could not have the view and for that cause an Assise cannot be taken and if the King should grant the Office of Usher to his Son the Prince an Assise would not lie An Assise brought against Demetrius the Plaintiff was non-suit and Demetrius moved to have Cost and it was denied by the whole Court because an Assise is not within the words of the Statute Audita Quaerela BIrd versus Kirton Trin. 13. Jacobi rotulo 3118. An Audita Quaerela brought and the case was this Bird and Milles were bound to Kirton and Kirton makes a Bond to Milles in the summ of 100. l. that if Milles be not sued upon the first Bond then that shall be void and it was alleadged that Kirton did both sue Milles and Bird and that he had no notice of the second Bond that he might have pleaded it and so pretends that the second Bond should be a Defeasance of the first and Judgement was given for the Defendant BEck brought an Audita Quaerela and surmises the matter following that Boon Administrator of C. brought his Action of Debt upon an Obligation and before Judgement that Administration was revoked and Administration granted to another and notwithstanding the Revocation he procured Judgement and the second Administrator released and the rest brought an Audita Quaerela upon that Release and the Court would not grant a Supersedeas because the Revocation was but matter in fait for that Revocation was not under Seal and the first Administrator might appeal Cases in Law and Notes IF a Writ of Covenant be brought against two and if one acknowledge the Fine before one of the Justices and the other acknowledge by Dedimus or before another Justice that Fine cannot be proceeded upon these two acknowledgements by the opinion of the Court. A Writ of Covenant was brought against three men and their Wives and onely two men and their Wives acknowledged the Fine and the other Husband and Wife never acknowledged and the Fine was sued as a Fine acknowledged by all and it was desired the Fine might be amended and the Man and Wife that did not acknowledge might be put out but the Court would not grant it If I make a Lease for years reserving Rent during the Life of A. and B. if one of them die
lie by the Heir for pulling down the Coat-Armor c. of his Ancestors set up in the Church A Pew cannot belong to a House Fraud shall never be intended except it be apparent and found and that conveyance which at the time of the making was good shall never by matter ex post facto be adjudged to be fraudulently made for before primo Eliz. at the Common Law A conveyance made for natural affection without valuable consideration is not to be avoided none shall avoid it but such as come in upon valuable considerations Lands devised to one in Tail upon condition that he shall not alien and for Default of such the Remainder to R. in Tail this is a Condition and no Limitation by the whole Court and the Heir at the Common Law may enter for the Alienation Matters of instance which are between party and party as for Tithes and Matrimony are not to be dealt withall by the high Commissioners if they proceed inverso ordine that cannot be holpen in the Common Pleas but by superior Magistrate if they be Judges of the cause If one in Norfolk come within another Dioces and commit Adultery in another Dioces during the time of his residence he may be cited in the Dioces where he committed the Offence although he dwell out of the Dioces by Cook Warburton and Winch. If the King grant Lands to A. and his Heirs Males and doth not say of his Body he is but Tenant at will Tamen quaere A Deputy of an Office for Bribery cannot make his Master be punished corporally but pecuniarily equity shall not barr me of the benefit of Law Note the Probate of Wils and Administrations did not belong to the Ordinary originally but to the Common Law If two Aliens be at Issue the Inquest shall be all English but if between an Alien and Denizen that Inquest shall be de medietate Linguae 21 H. 6. 4. A Judgement given against a dead person is not void but Error 28. Ass 17. A Juror was committed to the Fleet For making his Companions stay a whole Day and a Night having no reason for it and without the Assent of any of the rest of his Fellows and after was bailed but not untill the Court was advised 8 E. 3. 75. In a Writ of Estate Probanda every Juror ought to be of the Age of 42. years If I grant Land to one and his Heirs in the Premises of the Deed Habendum to him and the Heirs of his Body he shall have the Land in Tail and the Fee-simple after the State in Tail when the Estate is certain in the Premises the Habendum shall not controll it If one make two Executors one of seventeen years of Age and the other under Administration during the minority is void because he of seventeen years old may execute the Will of Administration during the minority in such case be granted and the Administrator brings his Action the Executor may well release the Debt Pigot and Gascoins case If a Record go once to Triall and warning given if the first Attorney be alive the Plaintiff is not tied to give warning again but if the Attorney be dead he is If no place of Payment be in a Will which appointeth Money to be paid there must be a Request to pay the Money for he is not bound to seek all England over for him otherwise it is if it were by Bond. In every case where the Plaintiff might have Judgement against the Defendant there if the Plaintiff be non-suit the Defendant shall have his Costs if the Plaintiff be non-suit TRin. 11. Jac. In cases of remitting causes from the inferior Judge the Arch-deacon cannot remit the cause to the Arch-bishop but he must remit it to his Bishop and he to the Arch-bishop It was held by the Court that one might distrain for a Legacy In a special Verdict the Plaintiff must begin to argue first OLive versus Hanmer A Writ of Error was brought upon a Judgement by Nil dicit for want of a Warrant of Attorney and the Record certified and a Certior are to the Clerk of the Warrants and Error assigned for want of a Warrant And the Court was moved that a Warrant might be filed and it was granted and a Warrant filed accordingly Pasch 12. Jac. An Action was brought against Baron feme and an Attorney appeared for the Husband alone and the Court held it was the Appearance of Baron feme in Law PAsch 12. Jacobi Sheriff versus Whitsander One Judgement was confessed in Trin. 42. Eliz. rotulo 504. And afterwards in Trinity Terme 43. Eliz. the Defendant brought a Writ of Error bearing Date the 12. of May Anno 43. and upon that Writ the Record was certified 25. May and afterwards Error was assigned in the upper Bench for want of a Warrant of Attorney by the Defendant And Mich. 43. 44. Eliz. the Warrant of Attorney was received and entred upon Record by Order of Court of Common Pleas. And the like was Pasch 2. Jac. rotulo 1956. Int. Bathgrone and Smith and the like Mich. 1. Jac. rotulo 1306. Inter Smith Kent CRane versus Colpit Question was whether the Attornement of an Infant be good or not and by the whole Court it was held good by three Reasons First he gives no Interest Secondly it is to perfect a thing Thirdly he is a Free-holder IT was held in the case of Gage an Attorney who as an Administrator brought an Action of Priviledge that his Priviledge ought not to be allowed And after a Bill was filed against Drury an Attorney as Executor and held that the Bill would not lie but in both cases the Suit should be by Original BEarbrook versus Read The name of Confirmation must stand for Sir Francis Gawdy was christened Thomas and confirmed Francis by that name he must be called SIr Henry Compton was sued for Cloathes of his Wife bought without his command or privity and the whole Court were of opinion that if the Wife should buy Merchandises and thereof make Cloathes and wear those Cloathes although the Husband know nothing of them yet he shall pay for them PAsch 10. Jac. The Court was moved to know whether the Wife of a Bankrupt can be examined by the Commissioners upon the Statute of Bankrupt and they were of opinion she could not be examined For the Wife is not bound in case of high Treason to discover her Husbands Treason although the Son be bound to reveal it therefore by the Common Law she shall not be examined An Infant shall not be examined If an Administration be granted to one during the minority of two Infants and one of them dieth the Administration continueth still Actions of Debt LOvelace versus Cocket Mich. 6. Jac. rotulo 1001. Action of Debt brought upon an Obligation for the Paiment of Money at a
certain Day specified in the Condition The Defendant pleads that the Plaintiff at the Day of Payment accepts of another Bond for the Payment of the said Money in satisfaction of the said 52. l. 11. s. and upon a Demurrer held to be a naughty Plea for one Bond cannot overthrow another LEa versus Pain Hill 14. Jacobi rotulo 953. An Action of Debt brought upon an Obligation with a Condition to perform an Award the Defendant pleads that the Arbitrators made no Award The Plaintiff by way of Replication sets forth an Award that the Arbitrators did arbitrate of all matters untill the Date of the Award which was a Moneth longer then the Submission and so pretends they exceeded their Authority The words were for all causes before the Date of the Award Another Exception was because the Arbitrators awarded that the Defendant should pay the Plaintiff such a Day of April and doth not say what year or next following and the Court held that good enough because the second Day of Payment was made to be such a Day and such a year and it was held good enough for if any new matters did arise between the Submission and Award or c. the Defendant ought to shew it Another Exception was that it was not said that the Award was made between the Parties but it shall be intended to be made between the Parties because the Award was made de super praemissis and therefore it shall be implied that it was made but of such things as they had power to deal in The Court was of opinion that the Award being de super praemissis the Court shall not say but that this was a cause submitted and except it had been discovered by pleading that there was a new cause since the Date of the Award which was made known to the Wardsmen the Court is not to take notice thereof SCot Executor versus Herbert The Plaintiff in his Declaration sayes the Testator in his life-time was possessed of Land for a terme of years and so possessed grants part of his terme to an Estranger reserving Rent and he grants his Estate to the Defendant And that the Testator died possessed of the Reversion of the terme and because the Rent was behinde the Executor brings his Action of Debt for the Rent and the Declaration was held naught for that it did not appear that he that made the first Demise was seised in Fee or in any other Estate by which he could make a Lease NOrris and Trussell Wardens of the Society of Weavers in the Town of Newbury in the County of Berks versus J. Scapes Pasch 14. Jac. rotulo 907. An Action of Debt brought and the Plaintiffs declare that Queen Elizabeth had incorporated them by such a name and given them Power to make by-laws for the better governing their Corporation c. and further shew that they made an Order which was confirmed by the Justices of Assise according to the Statute of 19 H. 7. and for the Breach of such Order brought their Action the Defendant pleaded that he owed them nothing and tried and a Verdict for the Plaintiffs and Hutton Serjeant moved in Arrest of Judgement and took three Exceptions the first because the Constitution was against Law to restrain one to exercise a lawfull Trade The second the Constitution was that the Offender should forfeit such a summ and it did not appear to whom this Forfeiture should go Thirdly the Plaintiff shews in his Count that the Queen by her Letters Patents had appointed A. B. C. to be Wardens for one year and shews not which those that brought the Action were elected which ought to be to intitle them to that Action It was against sense to barr all their own Apprentices it doth not appear how many Wardens should be and they do not intitle them to the Action by the Corporation the Law is altered and Judgement was given for the Defendant BRet versus Averder Mich. 29. 30. Eliz. Debt brought upon an Obligation to perform an Arbitrement the Defendant confesses the Arbitrement but pleads in Barr that the Plaintiff did not require him to make Payment and to that Plea the Plaintiff demurrs and it was adjudged no Plea for the Defendant at his perill ought to make Payment and the Plaiutiff ought not to make a Request HAles versus Bell Trin. 39. Eliz. rotulo 1974. The Plaintiff brought an Action of Dèbt upon an Obligation with a Condition for the Payment of 40. l. within fourteen Dayes next after the return of one Russell into England from the City of Venice and then the Obligation should be void the Defendant pleads in Barr that the said Russell was not at Venice upon which Plea the Plaintiff demurrs and adjudged a naughty Plea for where part is to be done within the Realm and part out of the Realm the Plea ought to be triable within the Realm GArret versus Harrison Executor Trin. 40. Eliz. rotulo 1651. To an Action of Debt upon a Bond brought against him as Executor the Defendant pleads six Judgements in Barr the Plaintiff replies that they were by fraud and covin and the Jury found for the Plaintiff that two of the six were by covin and Williams moved in Arrest of Judgement because the Jury ought to have found all but Glanvile said that if any part of the Plea be insufficient defective or false the Issue shall be found against you for your Plea is one intire thing and he said that the Plaintiff should have taken Issue upon one onely as in an Obligation with diverse things in the Condition Walmsley held that by the Plea the Defendant had confessed implicatively that you have sufficient to satisfie those six Judgements and no more So that if any part be found against you this is Assets and Judgement was given accordingly for the Plaintiff GReen versus Wilcox Executor To an Action upon an Obligation brought against the Defendant as Executor he pleads that the Testator was obliged to A. in 20. l. which remained due to him at his Death and that the said A. recorded against him in the Common Pleas and averres that it was a true Debt and the persons and matters to be the same and that he had no Assetts beyond that and the Plaintiff replies that the said Recovery was had by fraud and covin between them to defraud him of his Debt to which Plea the Defendant demurrs specially because he had in his Plea averred it was a true and just Debt so that it could not be by covin Trin. 44. Eliz. It was adjudged for Law by the whole Court that if a Fieri facias be directed and delivered to the Sheriff he may not break the outer Door of the House and enter and do Execution but if the outer Door be open then he may enter by that and then he may and ought to break the Door of an Entry or Chamber which is locked and break
Fawden an Attorney of the Common Pleas and he pleads in Barr an Outlary against the Administrator and adjudged no Plea MIch 4. Ed. 4. rotulo 144. An Action of Debt was brought against J. R. de W. in Com. L. Chapman the Defendant appeared by his Attorney and offered to wage his Law and essoyned and at that Day the Plaintiff appeared and the Defendant being solemnly required one J. R. came to answer the Plaintiff as Defendant in that Action in his proper person and offered to wage his Law the Plaintiff said that J. R. now appearing to wage his Law ought not to be admitted because the said J. R. is not that person which the Plaintiff prosecutes because this I. R. appearing is I. R. de W. in Com. L. Jun. Chapman and he who the Plaintiff prosecutes is I. R. de W. in Com. L. Sen. Chapman both of them at the purchasing the Plaintiffs Writ living at W. and that he agreed with the Defendant so to do therefore because I. R. de c. hath not appeared to wage his Law prayes Judgement the Defendant confesses such matter and sayes that he beleiving that the Writ was prosecuted against him appeared by his Attorney and offered to wage his Law and prayes to be discharged of the Debt and the other I. R. being exacted appeared not and the Court would advise but no Judgement for the Plaintiff HIll 26. Eliz. rotulo 420. The Lessor makes a Lease by Indenture for years and the Lessee grants over his whole Terme and the Lessor grants over the Reversion and it was adjudged that the Grantee of the Reversion should have an Action of Debt for the Arrears of Rent against the Assignee of the terme and not against the first Lessee HIll 43. Eliz. Pasch 41. Eliz. rotulo 425. An Action of Debt brought against an Executor in the Debet detinet for Rent due in the time of the Executor upon a Lease made to the Testator upon a Judgement given in the upper Bench and that Judgement was reversed in the Exchequer because it was not in the Detinet alone but afterwards in the upper Bench. Int. dominum Rich. Frank Administrator for Arrears due after the Death of the Intestate it was adjudged good in the Debet detinet and also in the Common Pleas Trin. 11. Jac. rotulo 2013. MIch 30. 31. Eliz. rotulo 907. An Action of Debt brought to which the Defendant pleads an Outlary against the Plaintiff in its force the Plaintiff replies the general Pardon granted by Parliament the Defendant demurrs and Judgement that he should answer over MIch 40. 41. Eliz. Ralph Rogers brought an Action of Debt upon an Obligation of 400. l. and Judgement was entred by the Clerk upon a Nichil dic that the said Roger should recover c. and for that Default the Defendant brought his Writ of Error to reverse the Judgement given for Ralph and when the Record was certified the Judges of the then Kings Bench would not proceed And afterwards the Judges of the Common Pleas upon a motion and before another Writ of Error brought amended the Mistake of the Clerk And Justice Walmsley would have committed Keale the Clerk to the Fleet for his carelesness but afterwards the Amendment was withdrawn by the Court and upon further advice the Roll made as it was before An Action of Debt was brought upon a single Bill for Payment of Money upon Demand and the Plaintiff declares generally that he often had requested c. and Serjeant Harris demurres to the Declaration and the opinion of the Court was that he ought to plead yet if the Defendant had demanded Oyer of the Bill and upon that have demurred it had been a good Demurrer because one special Demand was in the Bill and no special Demand alleadged in the Count. MIch 3. Iac. Burnell versus Bowes Action of Debt brought upon a Bond and the Plaintiff in the Imparlance Roll had counted upon a Bond made the tenth of March and an Imparlance thereupon untill the next Terme and in the next Terme he declared as of a Bond made the tenth of May and the Defendant pleaded per Dures and it was entred of Record and the next Terme after Entry thereof the Plaintiff moved that that Mistake might be amended and at first it was denied to be amended because the Defendant had pleaded to it and by that Amendment his Plea should be altered as if he had pleaded that it was not his Deed and the cause of his pleading that Plea was the the Mistake and if that Mistake should be amended he would be trised and overthrown and upon the first motion it was denied to be amended but afterwards granted to be amended by the whole Court for the Imparlance was entred Hillar first of James and the Issue was Pasch second of James but the Defendant was admitted to plead a new at his pleasure MIch 3. Jac. rotulo 2575. Fitch versus Bissie An Action of Debt brought upon an Obligation with a Condition to pay Money yearly according to the forme and effect of the Indenture made between the Plaintiff and Defendant the Defendant pleads that there was not any such Indenture made between the Plaintiff and Defendant as is in the Condition supposed and the Plaintiff demurrs upon that Plea for that the Defendant is estopped to plead that Plea KIng and his Wife Executrix of J. Wright Plaintiffs brought a Scire facias after the said Executrix came to full Age against Death and his Wife Administratrix of W. D. to have Execution of a Judgement had by J. D. and H. E. Administrators during the minority of the Executrix upon a Bond entred into to the Testator and whether a Scire facias lay by the Executrix or no was the Question and by the better opinion of the Court it did not lie MAyor and Burgesses of Linn Regis in Norfolk Mich. 10. Jac. rotulo 2413. brought an Action of Debt upon a Bond against one Pain and it was Ad respondendum Majori Burgensibus de Linn Regis in Comitatu Norfolciae Pain pleads that it was not his Deed and a special Verdict was found that the Mayor and Burgesses were incorporated by the name of Majores Burgenses Burgi de Linn non per aliud And whether the omission of this word Burgi should barr the Plaintiffs was the Question and Judgement was given by Cook Warburton and Nichols for the Plaintiff for Cook said that if the essential part of the Corporation was named it was sufficient and in this case the Mayor and Burgesses was one essential part and Linn Regis is another essential part and those two were duly expressed and sufficient to maintain the Action and Cook said that those words Et non per aliud shall be intended to be Non per aliud sensum non literae and of the same opinion were the other Judges there NIchols versus Grimwin Mich.
12. Jacobi rotulo 1609. or Hill in the same year rotulo 3027. The Plaintiff brought his Action upon a Bond the Condition whereof was performance of an Award for and concerning all matters Causes Suits and Demands whatsoever had moved or depending c. so as the said Award be made c. The Defendant pleads no such Award made the Plaintiff by Reply sets forth the Award it was made De praemissis to wit that the said I. should clearly depart with and avoid out of her House in which she then lived and that the said I. should carry away all the Hay c. The Defendant re-joynes and sayes no such Award and a Verdict for the Plaintiff the Defendant moved in Arrest of Judgement for that the Award was made but of one part and so void but Judgement was given for the Plaintiff for though the Award be made but of one part yet if the Defendant may plead it in Barr of the other Action brought against him for the same cause in all such cases the Award is good But my Lord Hubbart and Nichols took this Difference upon these words so that for then the Arbitrators must make their Award of all such things which are in Controversie and in such manner as the Condition prescribes but if the Parties put themselves by Parroll if the Arbitrement be made of one part it is good And Hubbart said that in all Arbitrements whether by Bond or Parroll they ought to be reciprocal and to be made in such manner that it may make an end of all Controversies between the Parties For if a man be bound in a single Bill and put it to Arbitrement and the Arbitrators order that the Obligor pay to the Obligee a summ and do not award that the Obligee shall seal a Release or that the Money paid shall be in Discharge of the said Bill the Award is void But in Barpools case the Submission was by Parroll for Money due before the Submission and the Award was that he should pay such a summ for the same Debt and good for the Award shall inure to a Dischage See Paschals case 8. Rep. STutfield Plaintiff Grony Defendant in Trinity Terme 13 Jacobi rotulo 859. The Defendant pleads to a Bond taken by the Sheriff for his Appearance in the Kings Bench Die Sabbati proximum post Oct. Martini that he appeared at the Day and the Court of Common Pleas gave him a Day to bring in the Record of his Appearance by Mittimus issuing out of the Chancery the Record was certified Videlicet that he appeared Lunae post xv am Martini which was after the Day yet it was adjudged good for if the Appearance was the same Terme it is good though it be not the same Day SErle against Harris Trinity Terme 9. Jacobi rotulo 1321. Judgement is there entred by Non sum inform against Harris Harris brings a Writ of Error upon that Judgement and assignes for Error that the Record was Fr. Harris de Brownton and the Original filed to warrant that Judgement was Fr. Harris de Browton and there reversed for that Variance HAmond versus Jethrell Mich. 8. Iacobi rotulo 2354. Hamond brought his Action of Debt upon a Bill obligatory for the Payment of Money and no Day limited in the Bill for the Payment thereof but after the words In witness whereof c. these words were written Nevertheless it is agreed that the said Jethrell shall not be hereby compelled or required to pay the said 30. l. untill the said Jethrell have recovered against B. Hudson the summ of 30. l. or more upon a Bond of 40. l. wherein the said Hamond c. The Defendant demands Oyer of the Bill and hath it Memorandum that J. W. J. c. and demurrs in Law and shews that the Plaintiff had not alleadged any Day of Payment nor when it was requested and the Declaration adjudged good notwithstanding and my Lord Cook held that whatsoever comes after these words In witness c. is no part of the Bill but words after In witness c. may be a Condition and must be pleaded and not demurred upon and 21 Henry the sixth direct in this point and so the third Report An Action of Covenant brought upon words of Covenant in Indenture after In witness c. and above the Seal and held good and maintainable SAaint-John versus Cracknell Mich. 12. Jacobi rotulo 1153. An Action of Debt was brought upon the Statute of the 24. of Henry the sixth for 40. l. for Election of Burgesses in Parliament and it was tried and a Verdict for the Plaintiff And Serjeant Moor moved the matter insuing in Arrest of Judgement First the Statute directs the Sheriff to issue out his Warrant to the Mayor if there be one and if no Mayor then to the Bailiff and it appeared by the Court that the Sheriff made his Warrant to the Bailiff and do not shew that there was no Mayor there and the Exception disallowed for if there was a Mayor the Defendant ought to shew it by Plea Secondly that the Plaintiff doth not alleadge that the Warrant made to the Bailiff was under the Sheriffs Seal as the Statute directs and the Court held the Count good notwithstanding because the Declaration was that the Sheriff by vertue of a Writ to him directed made his Warrant to the Bailiff and if it was by vertue of the Writ it shall be intended to be under his Seal HOpe versus Holman Mich. 10. Jacobi rotulo 3612. Debt upon an Obligation the Defendant pleads a forreign Attachment in London and the Plaintiff demurrs and the Exceptions were first that the Defendant had attached the Moneys in his own hands by way of Retainer and so the Custome unwarrantable Secondly it appeared that Judgement was given in the Mayors Court by the Default of him in whose hands the Money was attached and it appeared that the Defendant which brought the Action in London and he in whose hands the Attachment was made and that made Default was the same person and it is a contrariety that the same person should appear and not appear and a Prescription for that is naught and the Custome is in London that the Recoveror in London ought to finde Sureties that if the Debt be discharged within a Year and a Day then to pay the Money and did not appear by the Record that he found Sureties which was an incurable Fault and so adjudged by the Court. POtter versus Tompson Hill 14. Jacobi rotulo 3449. To one Obligation with Condition to make Assurance of Lands to such Uses therein expressed the Defendant pleads that he made a Feofment of the same Lands to other Uses which the Plaintiff accepted the Plaintiff demurrs and it was adjudged a naughty Plea for he ought not to vary from the Condition HIggenbotham versus Armot Hill 8. Jac. rotulo 906. Action of Debt brought upon a Retainer in the Office of an Husbandman for one year and so from
in the upper Bench. BRownsworth versus Trench Trin. 10. Iacobi rotulo 3628. An Action of Debt brought upon an Escape against a Bailiff of a Liberty and after a Triall Exception was taken to the Declaration because it was not alleadged therein that the Sheriff made a Warrant to the Bailiff upon the Execution but it was onely alleadged that at A. aforesaid by vertue of the Warrant aforesaid he took the Prisoner and saith not within his Liberty aforesaid and the Exception was held void Trin. 10. Iacobi An Action of Debt brought by Executors and the Defendant pleads that the Plaintiffs were not Executors and tried and found for the Defendant and the Defendant upon the Statute for Costs desired Costs because the Jury found against the Plaintiff that he was not Executor and if a Verdict passe against one that is not an Executor he shall pay Costs but Costs were denied by the whole Court for the Jury might finde an untruth BAlder versus Blackborn Trin. 16. Iacobi rotulo 465. An Action of Debt brought for Rent reserved upon a Lease for years the Case this Land was devised to a Woman in this manner that she should have the profits of the Land untill the Daughter of the Devisor should be eighteen years old and the Woman made the Lease in question reserving Rent and afterwards married and then died and if the Husband after her Death should have the Land untill the Daughter of the Devisor came to eighteen years old was the question and adjudged he should hold the Land for the Devise of the profits is the Devise of the Land and is not like a Lease made by a Guardian in Socage which ends by the Deâ—… of the Guardian the Declaration was for one Mesuage demised the fourth of May 15. Jac. for one year and so from year to year as long as both parties should agree paying twenty four pounds by the year and Nil debet per patriam was pleaded and the Jury found it specially that one I. W. was seised of the Tenement and held it in Socage and made it his last Will in writing and by that did devise to A. his Daughter the said Tenement and her Heirs for ever at the full Age of eighteen years the words of the Will were Item I will that my Wife and Executrix shall have the Education of my Daughter with the portion of Money and profits of my Land to her own use without account untill my Daughters Age aforesaid provided she shall pay the out-rents and keep her Daughter at School and by that Will made his Wife Executrix and the said W. died and his Wife survived and took upon her the Executorship and married with one P. the Woman performed the Condition and afterwards died and Judgement was given for the Plaintiff that it was a terme and that the Husband should have it An Action of Debt was brought against an Executor and the Case was thus Administration was committed to one during the minority of the Executor who wasted the Goods of the Testator and after the Executor attained the Age of seventeen years an Action of Debt was brought against the Executor and the opinion of the Court was prayed whether he might plead generally ne unques Executor or excuse himself by pleading the special matter and the Court doubled but most safe to plead the special matter An Action of Debt was brought for Rent reserved by Indenture payable at two Feasts or within twenty daies then next following and the Plaintiff declared upon a Lease for the Rent and because ten pound at the Feast of the Anunciation 10. Jacobi was behind and unpaid the Action was brought the Defendant pleads Non demisit and a Verdict for the Plaintiff and after a Triall exception was taken to the Declaration because it was not alleadged that the Rent was arrere at that Feast and twenty daies after but it was not allowed after a Verdict because he should have taken advantage thereof before RAtliff versus Executors Pasch 15. Jacobi An Action of Debt brought upon an Obligation to perform Covenants in an Indenture The Defendant pleads performance of the Covenants the Plaintiff alleadges a breach upon this Covenant that the Lessee should injoy the Land without any lawfull interruption or disturbance of the Lessor or his Executors and shewes that the Executors entred upon him in the Land and outed him and shews not any interruption for any just cause and adjudged good in the upper Bench. WHitton versus Bye Trin. 16. Jacobi It was adjudged in the upper Bench in an Action of Debt brought by a Lessor against a Lessee for years for Rent reserved during the Tearme being behind and unpaid that a Release pleaded to be made by the Lessor to the Lessee six years before the Rent was arrere of all Demands was a good Barr One cannot reserve a Rent to a stranger it must be reserved according to the privity WAinford Administrator Kirby versus Warner Trin. 13. Jacobi rotulo 1906. An Action of Debt brought upon a Bond to which the Defendant pleads that the intestate was indebted to him in such a sum and that he retained c. in his hands to satisfie himself of the Debt due to him And that he had not assets over to satisfie the Plaintiff to which Plea the Plaintiff demurrs because he did not plead generally fully administred but an Exception was taken because he shewed not that the Condition of the Bond was for payment of Money STone versus Goddard Trin. 14. Jacobi rotulo 2258. An Action of Debt brought upon divers Emissets of divers Wares Videlicet unum ahenum for five shillings unum scabum for six shillings and so divers other words which the Court could not understand what they signified in regard no Anglice was put to them and the Defendant pleaded Nil debet per patriam and the Jury gave a Verdict for the Plaintiff and Damages given for the whole Debt and moved in Arrest of Judgement and Judgement that the Plaintiff should have no Judgement for the insufficiency of his Declaration WEeks versus Wright unum Clericorum R. B. The Plaintiff exhibited a Bill against the Defendant for Money due upon an Obligation and Issue was joyned and the Cause tried and a Verdict for the Plaintiff and after Triall the Defendant moved in Arrest of Judgement that the Bill was not filed that it was not helped by the Statute of Jeofayles nor within that Statute for it is an Original but afterwards the Court granted that a new Bill should be filed so that the matter might be put to arbitrement and if the Arbitrators could not determine the matter the Court would And note the Court seemed to be of an opinion that the want of a Bill is not helped by the Statute WItchoct Linesey versus Nine Trin. 9. Jacobi rotulo 726. An Action of Debt brought upon an Obligation to perform the Covenants contained in an
to seal and he refused and upon such Refusall the Plaintiff brought his Action and a Verdict was given for the Plaintiff and Serjeant Yelverton moved in Arrest of Judgement that the Plaintiff ought not to have Judgement for he said that the Defendant was not bound and compellable to seal that Obligation because it was not in Law any Assurance but a collateral thing and the whole Court agreed that and therefore being the Action was brought for refusing to seal the Obligation and Letter of Attorney and the Judgement according it ought to be arrested but Cock said that Judgement ought not to be arrested for the Premises of the Delaration it appeared that he refused to seal the Letter of Attorney and thereupon concluded that it should not be arrested and Fennor said that the Letter of Attorney was not any such Assurance as the Law required in such Case for when he had made the Surrender it should be accounted the Surrender of him that made the Assurance and he said he should make a present Assurance of it but Tanfeild was of another opinion and said that when the Surrender was made it shall be said to be the immediate Surrender of him that made the Letter of Atturney and such an assurance as the Law required and Yelverton Justice said the Letter of Atturney was lame for this cause the Letter of Atturney was made to one for the surrendring of such a Copy-hold and did not say in the Letter of Atturney for him and in his name for otherwise the Copy-hold might be the Copy-hold of him that surrendred by vertue of the Letter of Atturney and then he should surrender his own Copy-hold but Tanfeild was of another opinion because he said in the Letter of Atturney that he did constitute and appoint and in his stead and place put such a one which words in his stead and place are as full as if he should have said in his name HOllingworth versus Huntley Pasch 5 Jacobi An Action of Debt brought upon an Obligation the Condition amongst many other things contained that the Husband and Wife being Lessees for life of certain Lands that if the said Husband and Wife should levy a Fine to an estranger at the Costs and Charges of an estranger and also that they should levy a Fine of other Lands that they also held for their lives to an estranger and at their Charge then c. the Obliger sayes that the Husband and Wife did offer to levy the Fine if the estranger to whom the Fine was to be delivered would bear their Charges the Obligee demurres and it was adjudged for the Plaintiffe because the levying the second Fine had not any reference to the other because they are two distinct sentences and these words and also make them so Man versus Somerton Pasch 5. Jacobi The Plaintiffe being Parson of Henley brought an action of Debt for six hundred pounds upon the Statute of 〈◊〉 6. for not setting forth Tithe of Wood and the Plaintiffe shews that the Defendant had cut down two hundred loads of Wood to the value of two hundred pounds and saith the tenth part of that did amount to two hundred pounds and so he brought his action for six hundred pounds upon the Statute and the Plaintiffe was nonsuit for one fault in his Declaration for whereas he names the price of the Wood to be two hundred pounds it was mistaken for it should have been two thousand pounds for he demanded more for the tenth part then the principall is by his own shewing and Tanfeild Justice held that Beech by the common Law is not Timber and so it was adjudged in Cary and Pagets Case and it was held that Tithes shall not be paid for Beech above the growth of twenty years in a common Countrey for Wood as in Buckingham-shire for there it is reputed Timber but in a plentifull Countrey of Wood it is otherwise for there it is not Timber and Tithes shall be paid for such wood Silva cedua for which Tithes shall be paid is under the growth of twenty years but Tithes shall be paid for such wood which is not Timber which is above the growth of twenty years PErcher versus Vaughan Trin. 5. Jac. An action of Debt brought upon an Obligation for six pounds thirteen shillings eight pence The Defendant demands Oyer of the Obligation and imparles and after an imparlance the Defendant comes and sayes there was variance between the Plaintiffes writ and the Obligation for it appeared by the Obligation that the Defendant was obliged in viginti nobilis and so his action ought to be brought according to the Obligation and demands Judgement if the Plaintiffe ought to have his action the Plaintiffe demurres and it was argued by the Plaintiffes counsell first that it was no variance for it was said that twenty nobles and six pounds thirteen shillings eight pence were all one in substance if a man be bound to pay a hundred nobles and brings his action for fifty marks it is not variance 34 H. 8. 12. and 4 E. 3. Fitzherbert Title varians 102. agrees to that but if a man be obliged to pay certain money in Flemish money he ought to shew the performance of that strictly 9 Ed. 4. 49. and the Plaintiffes counsell said that it was variance it could not be shewed after an Imparlance in Marks Case Co. 5. 74. and said the conclusion of the Defendants Plea to demand Judgement of the Plaintiffe ought to have his action was not good for this Plea was not in barr of the action but in abatement of the Writ and Yelverton Justice agreed to that and he said when the Obligation was in viginti nobilis it shall be intended twenty nobles and good Tanfeild said that when there is no good and apt Latine words for a thing no unapt Latine word is put in the Bond for that thing the Bond is void as when a man is bound in quinque libris it it was adjudged in Mich. Term 5 Jac. that the Obligation was void because there was a fit Latine word and that was quinque and so it was adjudged in the Lord Danvers Case where the Indictment for one blow super capud and it was held void because it was an unapt word and there was a fit and apt word to wit Caput and VVilliams agreed to this for he said it was adjudged in the common Pleas between Pencrosse and Tout a man was bound in a Bond in viginti literis when it should have been viginti libris and adjudged void for the same cause but after in Hillary Term the Plaintiffe had Judgement because in one Dictionary nobilis was a Latine word for six shillings eight pence VEntris versus Farmer Trin. 5. Jacobi A Lease was made for years rendering Rent payable at a place of the Land and the Court was moved whether a Demand of the Rent may not be made upon the Land but denied by the
Arbitrators are made Judges by the assent and election of the Parties and it appears that the parties put their trust not in the four joyntly but joyntly and severally and the Ita quod c. is an explanation of all the Condition that they four or any two of them might arbitrate all matters between them and so much appears 2 R. 3. 18. where two of one part and one of another part put themselves to the Award of I. S. now by this Submission I. S. may arbitrate as well any matters between the two parties of one part as between them and the third because in the intent of the parties the end of their Submission was to have peace and quietnesse and 4 H. 4. 40. the Condition of a Recognisance was that if A. A. shall stand and abide the Award of four named three or two of them of all matters c. which is a division of their power and observe in the principal Case that untill the Ita quod comes the Condition is not perfect for all the Condiâ—… is but one Sentence BRisco versus King Trin. 9. Jacobi The Plaintiff brought an Action of Debt upon a Bond for three hundred pounds with a Condition that the Defendant should perform all Covenants Clauses Payments and Agreements contained in one Deed poll of the same Date made by the Defendant to the Plaintiff the Defendant by way of Plea sets forth the Deed poll in haec verba in which Deed was contained one Grant and Bargain and sale of certain Lands made by the Plaintiff to the Defendant for one hundred pounds paid and two hundred pounds to be paid in which Deed there was one Proviso that if the Defendant should not pay for the Plaintiff to one J. S. forty pounds to J. D. forty pounds c. at such a Day that then the Bargain and Sale should be void and the Defendant pleads that he had performed all the Covenants c. comprised in the Deed the Plaintiff assigned a Breach for the not paying of forty pounds at the Day according to the Proviso and the Defendant demurrs and adjudged for the Defendant by the whole Court for the Condition bindes the Defendant to perform other Payments then such as the Defendant is bound by the Deed to perform for the Obligation was made but for the strengthning of the Deed and the Deed requires not any compulsory Payments to be made but leaves it to the will of the Defendant or to make the payments specified in the Proviso or in Default thereof to forfeit the Land to the Plaintiff and therefore it appears that it was not the intent and meaning of the parties to make an Obligation with a Condition repugnant to it and contrary to the Deed poll of Bargain of Sale and by this means the Payment of forty pounds to J. S. which is made voluntary by the Deed poll shall be made compulsory by the Obligation but the word Payments in the Condition of the Obligation shall have relation onely to such payments contained in the Deed poll which are compulsory to the Defendant and not otherwise and because the neglect of the payment of forty pounds to J. S. assigned for the Breach is denied to be voluntary for the Defendant to pay or not to which the Condition of the Obligation cannot in any reasonable construction extend therefore it was adjudged against the Plaintiff WOolby versus Perlby Mich. 9. Jacobi An Action of Debt brought upon a Lease for years the Plaintiff derives his Title by the grant of the Reversion by way of bargain and Sale in Fee from the first Lessor and declares that by an Indenture of such a Date one grants bargains and sells for money the Reversion to him in Fee which Indenture was inrolled such a day according to the form of the Statute and because he shewed not in his Declaration in what Court it was inrolled and the Statute of 27 H. 8. Parles of many severall Courts and that it is no reason to put the Lessee to such an infinite labour to search in all Courts as well at Westminster as in the Countrey with the Clerk of the Peace and for this cause after a verdict a nil capiat per Billam entred by the whole Court SIR George Savill versus Candish Hill 9 Jac. The old Countesse of Shrewsbury had a Verdict against Savel and upon a challenge of the Sheriff on the Plaintiffs part of the County of Derby the Tenure was directed to the Coroners who returned all the Writs and at the Assises a Tales was awarded and the name of one of them of the Tales was Gregory Grigson c. and by postea returned by the Clerks of the Assise in the Common Pleas the Tales was returned to be by the Sheriff but in the entring up the Judgement it was made by the Coroners and the name of the man of the Tales by the Clerk of the Assise was restored according to his right name Gregory but entred in the Roll by the name of George and upon that Judgement Savill brought a Writ of Error which depended ten years and more and the first Plaintiff who was the Countesse of Shrewsbury died this matter being indiscussed and Candish as Executor to the Countesse revived all by Scire facias why he should not have Execution and after many debates the Judgement was reversed for three causes first because upon the Pannell of the Jurors names after the twenty four Jurors were named at the foot of the Pannell two names were added to the Jurors which in truth were the men of the Tales but no mention was made that they were the names of the Jurors impannelled de novo according to the form of the Statute which ought to be for at the Common Law the Justices of assise cannot grant any Tales to supply the default of the first Jurors but it is given only by the Statute of the 35. H. 8. which ordains that their names shall be added to the first Pannell and this cannot be discerned to be done accordingly if such a stile and Title be not made over their names viz. nomina Jurator de noto apposit secundum formam Statuti to distinguish what is done by the Common-Law and what by the aid of the Statute and also the Coroners names ought to be added to the Tales at the bottom of the Pannell and in this Case their names were onely indorsed which was upon the Return of the first Pannell and although divers Presidents were shown to the Court wherein the names of the Jurors de novo appoposit c. were united upon the Pannell yet the Court did not regard them because it seemed that they passed in silence without debate had upon them the second cause was because it appeared by the Return of the postea that the Tales were returned by the Sheriff which is error in the first Processe to the Coroners and although in the Entry in the Common Pleas of
forth divers payments by him made and amongst other payments shews that he had payed to M. Fawn named in the Condition sixty pounds for a Legacy due by the Will of the said Ed. A. the payment of which sixty pounds was disallowed by that Court and by the Order of the Chancery sixty five pounds paid for not allowing the first sixty pounds to Ed. A. the Son which sixty and five pounds the Defendant had not repaid though thereunto requested and so he was damnified to which Replication the Defendant demurrs and the opinion of the whole Court after a great Debate was against the Plaintiff for the Plaintiff in his Replication had alleadged two Causes to inforce his Damage the first was that the Plaintiff in his Answer in the Chancery had alleadged the payment of sixty pounds to M. F. for a Legacy due to her by the Will and that such Allegation was rejected by the Court of Chancery and neither of those matters are certainly alleadged but by way of Implication and not expresly for he ought to have shewn that a Legacy of sixty pounds was given to M. F. by the Will of E. A. for although the Will of E. A. is recited in the Condition in the Date against which Recitall the Defendant may not be admitted to say that he made no such Will yet the Legacy given to M. F. is not recited in the Condition if not in the General against which the Defendant may take a Traverse that Eáw. A. did not bequeath such a Legacy of sixty pounds and upon that a good Issue may be taken And secondly the Plaintiff sayes that the payment of the said sixty pounds was disallowed by the Court of Chancery and doth not appear in the Replication where the Chancery was at that time to wit whether at Westminster or at any other place and it is issuable and triable by a Jury whether any such Order of Chancery were made or not for the Orders there are but in Paper and are not upon Record to be tried by Record but by a Jury and the Plaintiff perceiving the opinion of the Court against him prayed that he might discontinue his Suit which was granted by the whole Court but Quaere of this it being after a Demurrer WEaver versus Clifford Pasch 44. Eliz. rotulo 453. The Plaintiff brought an Action of Debt upon an Escape against Clifford and declares that one A. was bound to the Plaintiff in one Recognisance of a hundred pounds to be paid at a Day at which Day A. made Default of Payment and the Plaintiff sued out two Scire fac and upon the second Scire fac a Nihil was returned and the Plaintiff had Judgement to recover and afterwards he sued out a Levari fac and a Nihil being returned the Plaintiff prosecuted a Capias ad satisfaciend by vertue of which Writ the Defendant being then Sheriff took the said A. and afterwards at D. in the County of S. permitted him to go at large to which the Declaration the Defendant demurred Damport for the Defendant and he shewed the cause of the Demurrer to be because a Capias upon the Recognisance did not lie and he divided the Case into two parts first whether a Capias would lie in the Case and secondly whether the Sheriff would take the Advantage of such a naughty Processe and as to the first it seemed to him that a Capias would not lie because it appeared by Herberts 5. Repub. fol. 12. And Garnons Case 5. Rep. fol. 88. that the Body of the Defendant was not liable to Execution for Debt by the Common Law but onely in Trespasse where a Fine was due to the King or that he was accountant to the King and the Plaintiff could have no other Processe but a Fieri facias within the year and if the year were passed then he might have a new Original in Debt But now by the Statute of Marlbrig cap. 23. And Westm. 2. cap. 11. a Capias is given in Account and by the 25 E. 3. c. 17. Capias is given in Debt and Detinue and by the 19 H. 7. c. 9. the like Processe is given in Case as in Debt and Trespasse and the 23 H. 8. c. 14. a Capias is given in a Writ of Annuity and Covenant but Statute gives a Capias in this Case and therefore it remaines as it was at Common and by that it would not lie which is also apparent by the Recognisance for that is that if the Debt shall be levied of the Goods and Chattels Lands and Tenements c. and doth not meddle with the Body and by an expresse Authority 13 14 Eliz. Dier 306. Puttenhams Case it is held that the Chancery hath no Authority to commit the Defendant to the Fleet upon a Recovery in a Scire facias upon a Recognisance because the Body is not liable And for the second point it seemed to him that the Sheriff should take Advantage of this which should be as void and as null whereof a stranger may take benefit and to prove this he took this Difference when a Processe will not lie and where it is disorderly awarded as if an Exigent be sued out before a Capias or an Execution before Judgement for if that Processe be originally supposed there the Processe is but erroneous in Druries Case 8. Rep. 142. 34 H. 6. 2. b. But if the Action it self will not maintain the Processe as a Capias in Formedon there that Processe is as void and null and he took another Diversity when the Capias is taken by the Award of the Court when Judgement is given that he shall recover for in that Case it shall remain good untill it be reversed because it is the Act of the Court and so is Druries Case to be intended but if the party himself take it it is at his own peril as here it is for the Plaintiff hath onely pleaded that he prosecuted c. which is as void to the party who sued it out and he shall have no benefit of it but the Sheriff shall not be punished for false Imprisonment because he is not to examine the illegality or validity of the Processe for the 11 H. 4. 36. If a Capias issue out without any Original and the party be taken the Sheriff shall not be punished and for these Reasons he prayed Judgement for the Defendant Noy was for the Plaintiff and he agreed that at the Common Law no Action did lie in this Case as it hath been said but he was of opinion that this Case is within 25 E. 3. cap. 17. for the intention and drift of the Statute was to give speedy remedy to recover Debts and the Action is all one in the eye of the Law as if it had been done by Original which in the equity of the Statute And a Capias lies upon a Recognisance against a Surety for the Peace and upon a Scire facias against the Bail in the Upper Bench. As to
Puttenhams Case the Reason because he was not in Execution before And for the second Objection although the Capias did not lie yet it is but Error for if the Court had Jurisdiction to hold plea of the Cause although the Process be naughtily awarded it is but Error of which the Sheriff shall not take benefit and therefore if a Woman have recovered in Dower and hath Damages in the Common Pleas and thereupon the party takes a Capias for the Damages and the party be taken and suffered to go at large it is an Escape 10 Hen. 7. 23. and if a Capias be awarded in the Common Pleas after the Record removed it is but Error and so ruled 13 E. 3. Title Barr 253. But if the Court hath no Jurisdiction in the cause as a Formedon brought in the upper Bench as it is 1 R. 3. 4. or an Appeal in the Common Pleas or where a Writ is awarded out of the Chancery returnable in Chester these are void and coram non Judice and there ought not to be any arrest upon such a Writ and he cited a Case Trin. 31. and 37. Eliz. in the Exchequer Woodhouse and Ognells Case ruled accordingy and as concerning the difference taken there is no other form of pleading but only quod prosecutus fuit quoddam c. without saying that it was by the award of the Court and the Court at that time did strongly incline that it was but Error at the most but Mich. 11 Ja. It was adjudged by the whole Court that the Capias could not ly and that it was onely Error of which the Sheriffe shall not take the benefit KKetleys Case Pasch 11 Jac. An Action of Debt brought for arrearages of Rent brought against R. upon a Lease for years the Defend pleads in Barr that the time of the Lease made he was within age to which the Plaintiff demurres and upon the first reading of the Record the question was whether a Lease made to an Infant be void and it was said it should be void otherwise it might be very prejudiciall to Infants whom the Law intends not to be of sufficient discretion for the mannaging of Land and also the Rent may be greater then the value of the Land to the great impoverishing of the Infant and took this difference where it is for the apparant benefit of the Infant a sa Lease made by an Infant rendring Rent and the like and when it is but an implied benefit as here for the Law intends that every Lease is made for the benefit of the Lessee although prima facie it seems to be but tail and trouble but the Court held it onely voidable as Election for if it be to the Infants benefit be that benefit apparant or implied it shall be void in no Case prima facie as 21 H. 6. 31. b. but the Infant may at his Election make it void for he shall before the Rent day come refuse and waive the Land an Action of Debt will not ly against him for otherwise such a Lease shall be more strong then any Fine or Record and great mischeif would insue and as to the prejudice it well be answered for if more Rent be reserved then the value of the Land he ought to have set it forth that it might have appeared to the Court which is not done for then clearly he should not have been bound for there had been no profit to the Infant as Russells Case is 5 Rep. 27. for if an Infant release it is not good except he hath received the money and it also appears by 21 H. 6. that if he did not enter and manure the Land that an Action of Debt would not ly against him but the principall Case was without colour for the Rent and taking the profits were Land as one day of the Reservation and secondly it was not shewed that the Rent was of greater value and thirdly the Defendant was of full age before the Rent day came HIggins Case Pasch 11 Jac. Action of Debt brought by Higgins against Yelverton was of an opinion at the Barr that if one be arrested upon a Processe in that Court and he puts in Bail and afterwards the Plaintiff recovers that he might at his Election take out his Execution either against the principall or Bail but if he took the Bail or arrested him or had him in Execution for the Debt although he had not full satisfaction he could not meddle with the Plaintiff but if two be Bail although one bee in Execution yet he may take the other also and Coderidge Justice was of the same opinion and Man the secondary said it was the daily practice there and so if the principall be in Execution he cannot take the Bail HAukinson versus Sandilands 11 Jacobi The Plaintiff brought an Action of Debt upon an Obligation for forty pounds against the Defendant who demanded Oyer of the Condition and afterwards pleads that the Obligation was made and delivered by him and one M. who is still living at D and demands Judgement of the Writ to which the Plaintiff demnrres the words of the Obligation were Noverint universi c. adquam solucionem bene fideliter faciend Obligamus nos vel quemlibet nostrum And whether this was should be accounted a Writ Obligation or Severall at the Election of the Plaintiffe was the question and Ger. Cook was of opinion that it should be brought against both and his onely reason was that at most the Plaintiffe had but an Election for the word vel could not be taken for et as it is 11 H. 7. 13. a Grant made to J. S. at J. D. is void and 20 H. 6. grant to two to them or to the Heires of one of them is not good and then if he had only an Election he hath made that already for the Defendant hath pleaded and averred that is was made by two joyntly by the appearance whereof he hath agreed to take it accordingly but Yelverton argued in this manner that although the words in an Obligation be not proper and apt yet if they be substantiall it is enough and therefore 28 H. 8. 19. utrumque nostrum is adjudged good and the 21 R. 2. 939. ad quam quidem solucionem obligamus nos singulos nostrum is adjudged severall and joint and for a direct authority he cited 7 H. 4. 66. where an Obligation was nos vel alterum nostrum and the Plaintiff brought severall Precipes and adjudged good that he might make it severall or joynt and all the Judges were clearly of an opinion that the Action was well brought for as it hath been said the Plaintiff had his Election and that Election would be said to be executed by the joynt Delivery for there was no cause to make Election untill the Bond was perfected and therefore though one delivers it at one time and the other at another yet the Plaintiff may have a caput Precipe if he
will for the Election is in bringing the Action and the words vel and are but Synonimaes and Champions Case Plowden 286. is taken for vel and the 21 E. 3. 29. in Mallories Case u is taken for and therefore they gave Judgement that the Defendant should answer over FReeman versus Shield Trin. 11 Jacobi and adjudged Pasch 12 Jacobi Freeman brought an Action of Debt upon an Obligation against Shield and proved Oyer of the Condition which was that if the Defendant should stand to the Award and Arbitrement of J. S. that then c. the Defendant pleads that the Arbitrators awarded that whereas there was no suit in the Chancery depending against the Plaintiff for divers matters that the Plaintiff should be acquitted of that suit and of all the matters contained in the same Bill and the Defendant further alledges that he did not make any prosecution of the said Bill but that the Plaintiff stands acquitted thereof the Plaintiff replies that the Defendant after the said Award such a year and day did exhibit a new Bill which did contain the same matter which the first Bill had and set forth at large both the Bills by which it appeared to the Court that it was so to which Plea the Defendant Demurres and the cause of the Demurrer onely was because the Plaintiff had pleaded that the Defendant had exhibited a new Bill but had not alledged any Processe taken forth upon the same Bill and if this be a breach of the award is the question Govin was for the Plaintiff and he was of opinion that it was a breach for the words were quod staret acquietatus and to be acquitted is not onely to be intended of an actuall disturbance or molestation but if the party be put in fright or is liable to any Processe it is a breach 8 Ed. 4. 27. a Condition to save one harmlesse if a Capias be awarded against him although it be not executed yet it is a forfeiture of the Bond nay though it was never delivered to the Sheriff for otherwise the Plaintiff should be in continuall care trouble for fear lest the Defendant should do it and so the Defendant may dally with him a long time which shal be mischievous therefore it may be resembled to 9 H. 7. where if a man sell a thing with warranty to pay for it at a day to come if the thing sold be corrupt the party may have his Action of deceit before the day of payment because it is in the others power to bring his Action and so it is in the Defendants power to serve the Plaintiff with Processe when he pleases and therefore it is a breach Coventry for the Defendant first because it is no such Process as can prejudice for neither goods nor Body shall be taken and therefore is not like the Cases before cited And secondly it is not such a process as our law respects or regards for a Bill is but as a Petition Haughton Justice was of the same opinion with the rest of the Judges but adjourned untill Hill 11. Jac. and an Exception taken because the Defendant had not answered the Declaration for the Condition is that he should be acquitted the Defendant pleaded that he hath been acquitted and Cook was of opinion that it was good and Pasch 12. Jac. Judgement was given for the Defendant by the whole Court KIpping versus Swain Trin. 11. Jacobi The Plaintiff brought an Action of Debt against Swain upon the Statute of 2 E. 6. for not setting forth of Tithes and declares whereas the Plaintiff being Proprietor of the Rectory of B. in the County of c. for the term of seven years and that the Defendant was Occupier of Lands within the same Parish for six moneths by a Devise made the tenth of March Anno decimo Jacobi And that the Defendant 27. Aug. the year aforesaid did cut his Corn there growing and that the tenth of September then next following the Defendant being Subdit dicti Domini Regis carried away the said Corn not setting out the Tenth according to the Statute and upon a Nil debet pleaded it was found for the Plaintiff and it was moved in Arrest of Judgement first because of the Plaintiffs own shewing he had no cause of Action against the Defendant for the interest of the Defendant in the Land was determined before the Tithes were carried away but the Court were of opinion that it was no Exception for although his interest in the Land was gone yet he remained Owner of the Corn for if Corn is cut although a stranger take them away before severance yet an Action will lie against him upon this Statute for otherwise the intent of the Statute may easily be defeated Another Exception was taken because the Plaintiff said he was Subdit dicti Domini Regis which is a Fault incurable for the Statute referrs Subdit to his politick capacity but Dicti goes to his natural and sole capacity and so the force of the Statute shall be determined by his Death and for this cause an Indictment upon the 8 H. 6. Contra pacem dicti Domini had been severall times reversed and of this opinion were three Judges but Haughton doubted of it and so it was adjourned PEnniworth versus Blawe Trin. 11. Jacobi The Plaintiff brought an Action of Debt upon an Obligation and prayed Oyer of the Condition which was that he should stand to the Arbitrement of J. S. of all Suites Quarrels Controversies and Debates from the beginning of the World untill the making the Obligation so that the Award be made in writing under the hand and seal of N. S. and should be delivered to the parties before such a Day c. and observe that the Sealing and Delivery of the Obligation was at twelve a clock the first of May the Defendant pleads in Barr that the Arbitrators made an Award and did deliver that to the parties above-said but said further that in the morning and before twelve a clock the first of May aforesaid one Debate and Controversie did arise between the parties concerning a Trespasse committed by the Plaintiff the same morning of which the Defendant gave notice to the Arbitrator before twelve a clock of the said first of May concerning which Trespasse the Arbitrator made no Award and therefore pretends the Award to be void and demands Judgement to which the Plaintiff demurrs and Yelverton being for the Plaintiff that the Plea was not any Answer to the Plaintiff and therefore Judgement ought to be given for the Plaintiffs Action is grounded upon an Obligation as single and the thing which helps the Defendant is the Condition indorsed to stand to the Award of S. the which is restrained so that it be delivered under the hand and seal and if the Defendant will plead the Condition against the Plaintiff he must plead it to be performed and executed according to the Submission by the
that it was collaterall warrantry where in truth it was a lineall warranty and it was held naught because the warranty was in Law a lineall warranty the Case was that Land was givenby Feoffment made to the use of the Feoffer for life remainder in Tail Tenant for life dies Tenant in Tail had Issue a Son and two Daughters and the Father and Son joyn in a Feoffment with warranty and after the Father and Son die without issue and the Daughters bring a Formedon and this is a lineall warranty PIt versus Staple Trin 14 Jac. rotulo 112. Formedon in le discender against three which plead non-Tenure and issue thereupon joyned and found specially that two of them were Lessees for life the remainder to the third person and whether the three were Tenants as is supposed by the writ was the question and the better opinion was that it was found for the Demandant for the Tenants should have pleaded severall Tenancy and then the Demandant might maintain his writ but by this generall non-Tenure if any be Tenant it is sufficient but in some Cases the Precipe may be brought against one who is not Tenant as a morgagor or morgagee COmes Leicester versus Comit. Clanriccard In Formedon upon a Judgement given in part for the Demandant and part for the Tenant the Tenant brought a writ of Error and had a Supersedeas upon it and afterwards the Demandant prosecuted a writ of Seisin and delivered it to the Sheriff and he executed the writ and immediately afterwards the Tenant delivered the Supersedeas to the Sheriff and the Tenant moved the Court and prayed a writ of restitution and it was granted him because the Tenant had done his indeavour and had not delayed the prosecuting the writ of Error COmes Clanriccard Francisca uxor Ejus Demandants versus R. S. milit vicecomit Lyple for three messuages c. which R. late Earl of Essex and Frances late wife of the said Earl by Fine in the Court of the Lady Elizabeth late Queen of England before her then Justices at Westminster levied and gave to William Gerrard Esquire and F. Mills Gentleman and the Heires of the said W. for ever to the use of Elizabeth Sydney Daughter and Heir of P. S. Milir and the Heirs of the Body of the said E. comming and for default of such issue to the use of the said F. then wife of the said Earl and the heirs of the said Fr. and which after the death of the said Eliz. ought to revert to the said Fr. by form of the gift aforesaid and by force of the Statute in such case provided because the said Eliz. died without Heir of her Body The Tenant pleaded in abatement of the writ because the writ ought to revert to the woman alone and it should have been to the Husband and wife and upon a demurrer Judgement was that he should answer over the writ may be either to revert to the Husband and wife or to the wife alone and herein the Tenant vouch two vouches and one is Essoined and an idem dies given to the other and Serjeant Harris demanded of the Court if he should Fourcher by Essoin because the Statute of Westminster the first is that Tenants Parceners or Joint Tenants shall not fourcher in Essoin therefore they two should not fourcher by Essoin but the Court held that before appearance it could not appear to the Court whether they were Tenants or not and therefore before appearance they shall have severall Essoins and Westminster the first is expounded by Gloucester the tenth which is that two Tenants shall not fourcher after appearance and at the day of the adjournment of the last Essoin the Tenant was Essoined and such Essoin was allowed and adjudged by the whole Court and the reason hereof seemed to some to be because the Tenant might be informed of the Vouchee that he vouched was the same person or no for he might be onother person for if he should be an estranger and demand the place and the Demandant could not hold him to the warranty the Demandant should loose his Land and they held that upon severall Processe to wit upon the view and upon the summons to warranty which are divers Processes the Tenant ought to be Essoined and the Court held that this Essoin was at the Common Law if the Tenant and the vouchee at the day given to the Tenant and the vouchee make default Judgement shall be given against the Tenant to wit a petty Cape and nothing against the vouchee SHotwell versus Corderoy In Formedon the Tenant prayes in aid â—nd the prayee in aid and Tenant vouch and the Vouchee was essoined and adjourned and at that Day the Attorney of the Tenant without the Prayer in aid cast an Essoin and an Idem dies given the Prayee in aid and it was quashed for they shall not have severall Essoines but joynt Essoines A Formedon brought of Lands in A. B. C. The Tenant pleads a Fine of all by the name of the Mannour and Tenements in A. B. And it was objected that he said nothing to the Land in C. but the Courtheld that by the name of the Mannor the Land in all the Villages would pass and the Demandant may if he will plead as to the Land in C. that it was not comprised in the Fine Hill 7. Jacobi rotulo 76. vel 69. Formedon in the Discender the Writ was general that J. L. gave to T. L. and the Heirs Males of his Body upon the Body of D. V. Widow lawfully to be begotten which D. the said T. afterwards took to Wife and which after the Death of the said T. c. Son and Heir Male of the Body of the said T. upon the Body of the said D. lawfully begotten to the said J. L. younger Son and Heir of the said J. L. Son of the said T. ought to descend by form of the Gift aforesaid c. and whereof he saith that the said T. was seised c. and 2 Eliz. of the said Tenements did infeoff the Plaintiff in Fee to the use of the said T. L. and his Heirs c. and note in the Count no mention made of the Marriage If a Gift be made in tail to D. and his Heirs Males the Remainder to A. in tail D. discontinues in the Life of A. and D. dies without Issue and the Heir of A. brought his Writ as the immediate Gift to A. his Ancestor who never was seised in his Life and for that cause the Writ was naught but if A. had been seised of the Land then it had not been necessary to have shewed the first Gift to D. by the opinion of the whole Court Actions upon the Statute of Hue and Cry NEedham versus Inhabitant Hundredi de Stoak Trin. 8. Jac. rotulo 534. Action brought upon the Statute of Hue and Cry by the Servant who was robbed in his own name and part of the Goods
were his Masters and part his own proper Goods and found guilty as to his own Goods and a special Verdict as to the Goods of his Master and Judgement for the Plaintiff COnstable versus Inhabitant in dimid Hundred de VValsham in Comitat. Essex Trin. 15. Jacobi rotulo 2244. The Action wabrought for a Robbery the Defendant is found guilty and it was alleadged in Arrest of Judgement that the Action would not lie because it was not brought against the whole Hundred and it was answered on the Plaintiffs behalf that the half Hundred is a Hundred by it self and the Court held the Writ should have been brought against them in this manner Inhabitantes in Hundredo de W. called the half Hundred of Waltham but the Writ was held good for the Writis so shall be intended to be brought against the men inhabiting in the half hundred of W. Judgement for the Plaintif in a special verdict the Jury found that the robbery was done upon the Sunday and it was held in the Kings Bench that the Hundred was liable NOrris versus Inhabitantes in Hundredo de G. Hill 14. Jacobi rotulo 431. And the Plaintiff declares upon a Robbery done the ninth day of October An. 13 Jacobi And the Originall bears Teste the ninth of October 14 Jacobi and after a Verdict Serjeant Harvey moved to stay the Judgement because the Writ was not brought within one year after the Robbery done according to the forme of the Statute of 27 Eliz. And the Court held it a good Exception CAmblyn versus Hundredum de Tendring Trin. 15. Jacobi rotulo 1952. The Plaintiff in his Declaration had mistaken to alleadge the very Day of the Robbery for he shewed the Robbery to be committed in October where in truth it was committed in September and the Court was moved that the Record which was taken out for Triall but never put in might be amended for the notice given to the Hundred as the Record is would appear to be before the Robbery and they granted that it should be amended Actions in Partition THe Process in Partition are Summons Attachment and Distress and the Process are returnable from fifteen Dayes to fifteen Dayes and if the Writ be brought against two or more several Essoines will lie but no View and the Sheriff upon the Distress is compellable to return the value of the Land from the teste of the Original untill the Return thereof and if the Writ be against two or more Deâ—eâ—â—iants and onely one appears the Plaintiff cannot declare against him untill the residue of the Defendants appear and Partition lies by the Statute of 31 H. 8. cap. 32. between Joint-tenants Tenants in Common Tenants for Life or for years but at the Common Law Partition was onely between Coparceners his Petit. is no Plea in Partition and in this Action there are two Judgements the first is that Partition shall be made and if the Plaintiff die after the first Jugement and before the second Judgement the Writ shall not abate but his Heir shall have a Scire facias against the Defendants to shew cause why Partition should be made and a Writ of Partition will not lie of the View of Frank Pledges and the Death of one of the Defendants abates the Writ And note the Plaintiff may have a general Writ but a special Count and if the Defendant confess part and plead Quod non tenet insimul pro indiviso for the residue the Plaintiff may have Judgement upon the Confession and a Writ to make Partition upon the Confession before the Triall and afterwards try the Issue for the residue or else he may respit his Judgement upon the Confession untill the Issue be tried but this is dangerous for if the Plaintiff be non-suit at the Assise then the whole Writ will abate and if the Sheriff return the Tenant summoned when in truth he was not an Action of Deceit lies not but an Action upon the Case because the Plaintiff shall not recover the Land by default and you shall never have a Writ of Partition against one where he cannot have one against the other thirteen men joyn in a purchase of a Mannour the Conveyance was of the moity to one of them in Fee and the other moity to the other twelve men in Fee the twelve make a Feoffment to one of twelve several Tenements and Land and that Feoffee makes twelve several Feoffments to those twelve men now the thirteenth man which had the other moity bringeth one Writt of Partition against them all pretending that they held insimul pro indiviso and by the opinion of the whole Court it would not lie but he ought to have brought several Writs and Mich. 6. Jacobi in Partition because both of them are in Possession he that is not prohibited may cut down all the Trees and no Estrepment will lie COcks versus Combstoks The Plaintiff declares that one A. was seised in Fee and demised for years to J. and L. and to the Plaintiff for term of Life and one of them demised to one of the Defendants for years the Defendant as to part pleads that he did not demise and the other pleads Non est informat and a Demurrer to the Plea of Non demisit because it is but argumentative Quod non tenet insimul and it was adjudged a naughty Plea a Writ of Error lies in Partition upon the first Judgement before the Writ be returned MIll versus Glemham The Defendant pleads that he before the purchasing of this Writ had brought a Writ of partition for the same Land against the Plaintiff which yet depends and demands Judgment if the Plaintiffs Writ were brought And the Court held that the Writ last brought is well brought for if the first Plaintiff will not proceed upon his Writ and the Defendant shall confess the Action yet the Defendant cannot sue a Writ to make partition upon that Plaintiffs Writ and therefore it is reasonable that the Defendant in the first Action may sue out a Writ to make partition and that the Defendants plea is naught and the last Writ is well prosecuted Actions upon Quare Impedit THe Process in this Action are Summons Attachment and Distress peremptory by the Statute of Marlborough cap. 13. the Sheriff must summon the Defendant by good summoners and return their names upon the original Writ and not return common summoners as John Doo and Richard Roo for a Writ of deceit lyeth in this Writ if the summons were not made indeed The Writs hereupon are returned from 15. days to 15. days The summons upon the first Writ may either be made at the Church door to the person of the Defendant And although a nihil be returned upon the first summons Attachment and Distress yet if the Defendant make default upon the Distress a Writ shall goe to the Bishop upon the title made by the Plaintiff but at the common Law
a Distress infinite did lie and no Writ to the Bishop before the appearance of the Defendant but now this is taken away by the Statute of Marlborough cap. 13. A Writ of Journes accompts lieth upon the death of the Testator and summons and severance if one of the Plaintiffs will not sue The Judgment in a Quare impedit is to recover the presentment and the value of the Church for half a year if the Plaintiff remove the Clerk And if he do not remove the Clerk then the value of the Church by two years and the value shall be levied by fifa or elegit and not by capias ad satisfaciend for that no capias lay before the appearance upon the Original Four things are to be enquired on in a Quare Impedit the first is whether the Church be full or no the second is if it be full of whose presentment thirdly whether the six moneths be past from the time it became void fourthly the value of the Church by the year If a Quare Impedit be brought against diverse they shall have severall essoins before appearance if the first man be essoined it must be adjourned for 15. days idem dies shall be given to the rest And at that day another of the Defendants may be essoined for 15. days more and an Idem dies given to the rest and so of all the rest of the Defendants And if the Defendant take not his essoin upon the summons he may take his essoin upon the Attachment And if the Plaintiff do not adjourn the essoin he shall be nonsuit And note that the Defendants are not bound to appear after they have had their essoins untill the return of the Distress for an essoin is no appearance because it may be cast by a stranger And note if the Quare Impedit be not brought against the Incumbent that is presented and admitted into the Church at the time of purchasing the first original Writ that Clerk shall never be removed by the Plaintiff although he hath judgment to remove his presentation but if a stranger be presented hanging the Writ if the Plaintiff recove he shall remove him And therfore the surer way is to bring the Writ against the Bishop Patron and Incumbent and then the Bishop shall not present by Cupps and if the Patron be omitted in the originall the Writ is abateable If the Originall writ be brought against three one May appear before his companions and Processe shall be continued untill Distresse be against the rest and the Plaintiff in the mean time declare against him that appears in the Simulcum and if he that appears pleads non impedivit the writ shall be awarded to the Bishop but there shall be acesset Executio untill the Plea between the Plaintiff and the other Defendants be determined and if the Bishop appear and claim nothing but as Ordinary a writ shall issue to the same Bishop upon that Judgement but if the Bishop makes a Title to present Judgement is given for the Plaintiff then the writ shall issue to the Metropolitan of Canterbury if the Church be within his Province and so to the Metropolitan of York if it be within his and upon a Judgement by non sum informat or nihil dicit the writ shall go to the Arch-Bishop and not the Ordinary if the writ be against him The death of one of the Defendants hanging the writdoth not abate the writ nor of one of the Plaintiffs Parcenors If the Incumbent recover he shall recover damages for he cannot have a Writ to the Bishop and if a man recover in a Quare impedit and die his Heir shall not have Execution for it is not a reall Action and the Plaintiff ought alwayes in his Declaration to make mention of the last Incumbent or otherwise his Writ shall abate The Husband alone but in the Right of his wife may without his wife bring a Quare impedit but not an Assise de Durraigne presentment for he shall recover nothing but his presentation and dammages and if the wife dye hanging the writ it shall not abate and a writ did abate because it was that he should permit him to nominate a fit person where it should be to present for an Advowson in VVales the writ shall be brought in the next English County and Judgement shall be given in his Action for the Plaintiffe at the Assises and deceit lyes as upon a Judgement had in this Action upon default upon every Issue issued joyned by Iury the Iury shall inquire of the points of the writ and note admission plenarty institution and ability shall be tried by the Ordinaries Certificate but if the Issue be whether the Church be empty by resignation or whether the Patron have presented his Clerk it shall be tried by the Couutrey and in this writ the Defeudant shall neither have his age nor a protection nor an Essoin as in the Kings service to avoid the Cupps If the King was Plaintiff that the defendant was not summoned by the Sheriff nor attached nor distrained and the King had Judgement by default no writ of deceit lies in an Assise of Durraign Presentment of the writ be brought in Midd. at the Return of the writ the Assise shall be there arraigned by the Serjeants at the Barr in French and the Tenant shall be demanded and if the Tenant do not appear when he is demanded a resummons shall be awarded and if upon the resummons the Tenant shall not appear the Assise shall be taken against him by default and if the Tenant appear he may demand Oyer of the writ and the Return and the writ shall be read to him in haec verba and the Return thereof and the Jury shall have the view and the Tenant may take exception either to the writ or to the Return thereof if there be cause and if there be no cause then he may pray a day to plead and if the Court give a day then the Jurors that appeared shall be discharged of their attendance and ought to appear upon a new Processe to be awarded against them the Judgement in this Assise is to recover the Presentation dammages and the value for half a year and if six moneths be past the value of the Church for two years by the Statute of Westminster Ed. 2. and six of the Jury ought to have the view of the Church to the intent that they may put the Plaintiff into possession if he recover and in this writ the Plaintiff shall not recover the Advowson but the Presentation the Processe in this writ is summons resummons against the Tenant and summons habeas corpus and distresse against the Jury and the Processe shall be returned from fifteen dayes to fieteen dayes and no Essoin nor voucher lies after a resummons If the King present his Clerk one may have an Assise against his Clerk only and not against the King and at Common Law none can have an Assise but
to have distrayned the Cattell of the Lord damage fesant and observe his BRaxall versus Thorold Trin. 8. Jac. In Replevin for the taking of 4 Oxen at Coringham in the County of Lincoln in a place called Dowgate leys Sept. 6. Jac. The Defendant says the place contained four acres in Coringham magna which was his Free-hold and justifies the taking damage fesant The Plaintiff in his bar to the Avowry that the place where c. lies in a place called Harrerart quarter parcell of a great Common Field called E. in Coringham aforesaid and that the Plaintiff the said time and long before was seized of one Messuage and of 14. acres of Land Medow and Pasture with the appurtenances to the said Messuage belonging and that the Plaintiff and all they whose estate the Plaintiff had in the Tenements ought to have common and so prescribed to have common for him his Farmers Tenants c. for all comunable cattell levant couchant upon the Tenements c. And upon issue taken upon the Common it was found for the Plaintif and alledged in arrest of Judgment that it did not appear by the Barre to the Avowry in what place the Messuage and Land to which the Common did appertain did lie to wit whether it did lie in Coringham or in any other place or County and thisof necessity ought to have been shewed in certain because the tenure ought to be both of the place where the House and Land did lye and of the place where the Land did lye in which the Common was claimed and therefore of necessity ought to have been shewed incertain and shall not of necessity be intended to be in Coringham where the Common is For a Common may be appendant or appurtenant to Land in another County And the trvall shall be of both Counties and Judgement was arrested by the whole Court TRuelock versus Riggsby Mich. 8. Jacobi In Replevin for the taking of six Kine in a place called Brisley hill in Radley in the County of Berks the Defendant as Bailiff of one Read makes Conisance that the place where c. contains fifty acres and is parcell of the Mannor of Barton whereof the place where c. is parcell and showes that E. 6. was seised of the Mannor of Barton whereof the place where is parcell and granted it by Letters Patents to R. Leigh and divers other Lands by the name of the Coxleyes c. and amongst other particulars in the Patent the King granted Brisley hill in Barton and deduces the Free-hold of the Mannor of which the place In which c. is parcell to Read and he as Bailiff to him took the Kine damage Fesant the Plaintiff replies and shows that one Hide was seised of a Messuage and divers Acres of Land in Radley and that he and those whose estate he hath for himself his Farmers and Tenants used to have Common in the said place called Brisley hill in Radley when the said Feild called Brisley hill in Radley was fresh and not sowed all that yeare with their Cattell Levant and Couchant and when the Field was sowne with Corne and when the Corne was carried away untill it was referred and so justifie the putting in of six Kine using his Common because the Feild was not sown with Corne at the time to which the Defendant pleads and saies that part of the Feild called Brisley Hill in the Avowry named was at that time sown with Corn c. and the Plaintiff demurres and adjudged for the Plaintiff for two reasons The first was because the Defendant in his Avowry referres the taking of the Cattell to another place then that set forth in the Avowry which is not in question and in which the Plaintiff claims no Common for the Plaintiff may claim Common in Brisley hill in Radley and the place named in the Defendants Avowry to which he referres his Plea is Brisley hill in Barton for Brisley hill in Radley is not named in the Avowry by any speciall name but onely by implication by this name the place in which c. and for that reason the rejoinder doth not answer the matter in the replication The second cause was because the Plaintiff claims Common when Brisley hill in Radley was unsown with Corn and the Defendant to that although his Plea should referre to the same Brisley yet hath he given no full answer for he saith that parcell of the said Feild was sowed with Corn and the Court held that sowing of parcell of the Feild shall not hinder the Plaintif from using his Common in the residue for that may be done by covin to deceive the Plaintiff of his Common for the Plaintif claiming his Common when the Field that is the whole Feild is sown shall be barred of his common by sowing of parcell of it notwithstanding that parcell be sowed the Plaintif shall have his common by the opinion of the whole court GOdfrey versus Bullein Mich. 8 Jacobi Bullein brought a Reple vin against Godfrey for the taking of six Beasts in such a place in Bale in the County of Norfolk the Defendant as Bailif of R. Godfrey makes conisance because before the time and at the time in which c. the said R. Geffrey was seised of a Court Leet in Baile of all the inhabitants and râ—â—dent within the Precinct of the Mannor of Baile to be holden within the Precinct of the Mannor as appertaining to his Mannor and shews how that he had used to have a Fine of ten shillings called a Leet Fine of all the cheif pledges of his Leet and if they failed to pay the Steward had used to amerce them that made default in payment shewed how that at a Court holden within the Mannor such a day it was presented that the Plaintif in the Replevin being an inhabitant in B. and resident within the Precinct of the Mannor made default in payment of the said Fine of ten shillings being then one of the cheif pledges of the Court by reason whereof he was amerced at five pounds which being not paid the Defendant took the Beasts and the Issue was whether Bullein at that court was a chief Pledge or no and the Venire to try his Issue was onely of the Mannor and found for the Plaintif and damages and costs to thirty pounds given against Geffrey upon which he brought a Writ of Error in the late Kings Bench and adjudged Error and the Judgement reversed for the Venire facias should have been both of Bail which was the Village as of the Mannor for although the Court be held within the Mannor yet the Leet it self is within the village of Baile and the Plaintiff was an inhabitant and resident within the village which village is within the Precinct of the Mannor and though Fleming cheif Justice held that nothing was in question but whether the Plaintiff was cheif pledge at the Court held within the Mannor or no and so nothing within the
is not a fault in form which is helped by the Statute but it is a defect in matter and then the Jury having assessed intire Dammages for both the Trespasses and that no cause of Action is supposed forme the verdict was not good which the Court granted FReshwater vers Reus Mic. 2 Jac. tenant in tail convenanted to stand seised in consideration of a marriage to be had by his Son with the Daughter of J. S. to the use of himself his heirs untill the marriage be had afterwards to the use of himself for life afterwards to his Son and his wife the daughter of J. S. and the heirs of their bodies and suffers a recovery with a single voucher to that purpose they die without Issue and adjudged that the Entry of him in the Remaindant depending upon the estate Tail was lawfull for first there is no consideration to raise an use for the consideration is onely the marriage of his Son with a stranger the which as to the changing of the possession is not any benefit to the Father for he is as a stranger to that personall particular consideration but if the consideration had been for the establishing of the Land in his name and blood it had been good for that onely concerned the Father and the whole Court agreed that although it were an alteration of the Estate as to himself but not to strangers for if he had after such Covenant to stand seisedtook a Wife she should have had Dower In Trespasse the Proces is Attachment and Distress infinite but if nihil be returned Proces of Outlary lyes and if the Defendant be returned attached by such Goods and Chattels if the Defendant omit to cast an Essoine at the returne of the Writ of Attachment he shall forfeit the Goods by which he was attached but if he cast an Essoine he shall have a speciall Writ reciting the matter to the Sheriff to deliver to him his Goods or Cattell although he doe not appeare at the day of the adjournment of the Essoine And if the Defendant at the returne of the Attachment will appear without an Essoine he may and then he shall not forfeit the Goods And note the Essoine shall not be adjourned by from fifteen dayes to fifteen dayes And if the originall Writ be against many they shall have but one Essoine in personall Actions And if a Lord of the Parliament appeare not he shall forfeit an hundred pounds and upon issue joyned in this Action the Proces against the Jury is the Venire facias Habeas corpus and Distresse And if a Baron of the Parliament be a Defendant then if a Knight be not returned upon the Pannell the Defendant may at the Assises quash the Pannell and if at the Assises the Jury doe not appeare full to wit twelve men this may be supplyed by the Justices at the request of the Plaintiff and the Sheriff ought to returne two Hundreds at the least in this Action and so in every personall Action but foure in reall Actions for if a challenge be made Pro defectu hundredo if two be not returned the Jury shall remaine and a Distringas with a Decem tales shall be awarded returnable in Court but no circumstances shall be awarded in Court for if the Jury in Court doe not appeare full or are challenged for that the Jurors have no freehold and it be tryed a new Habeas corpus shall issue out with a Decem tales if it be desired And if the Jury appeare full in the Court and the Array be challenged either for that it was of the Plaintiffs denomination or that the Sheriff or under Sheriff who returned the Jury are of the Kindred of the Plaintiff or any other principall cause of challenge and this is confessed or tryed by two of the Jurors who have appeared being assigned and sworne by the Court to be tryers of the challenge who shall give their Verdict that the challenge is true then the Array shall be quashed and if he that arrayed the Pannell remaine Sheriff the Venirefacias de novo shall be awarded to the Coroners if there be no cause of exception against them or any of them by reason of Kindred or any other principall cause And if there be cause of challenge to any of them the Venire facias shall issue to the rest and his companion shall not intermeddle with the execution of it and if there be good cause against all then a Venire facias shall issue to Estizors to be appointed by the Court to returne the Writ but if the Sheriff who returned the first Pannell be removed then a new Venire facias shall issue to the Sheriff who shall be then in Office And note no challenge shall be made to the Array returned by the Estizors but by the Poll and if the Jury appeare full and no challenge be made untill twelve be sworne the Jury shall proceed to heare their Evidence and give their Verdict and if the Jury finde for the Plaintiffe then they shall give costs and dammages but if they find for the Defendant they shall finde neither costs nor dammages And the Judgement for the Plaintiff is that the Plaintiff shall recover his dammages found by the Jury and costs of suit but if the Jury find for the Defendant the Judgment is that the Plaintiff shall in t capiat per breve but if Judgement in this case had lyen a Nil dicit confession or Non sum informat then the Court shall award to the Sheriff a Writ to inquire of dammages and no challenge lyes to the Jury upon a Writ to inquire And if the Sheriff returne but twenty and one upon the Jury and twelve of them appeare and try the Issue and give a Verdict it is a good Verdict but if onely ten or eleven of them appeare and the Jury be made up at the Assises De circumstantibus and the Issue be tryed and a Verdict given it is naught and not holpen by the Statute And if the Issue be joyned and the Sheriff be cozen to the Defendant the Plaintiff shall not have a Venire facias upon the challenge of Kindred of the Sheriff to the Defendant but it ought to stay untill that Sheriff be removed and another Sheriff made And if the Defendant be Lord of the Hundred within which Hundred the ten doth arise the Plaintiff may shew that and have a Venire facias to the next Hundred or if the Array be quashed for that cause he may have a Venire facias to the Coroners of the next Villiage in the next Hundred next adjoyning And note The Venire facias shall not issue to the Coroner but upon the principall challenge and if a challenge be to the Tales and that be found true the Tales onely shall be quashed and the principall Pannell shall stand And if an Issue be joyned between the Mayor and Commonalty of a City and another concerning a Trespass done within that
time out of mind to repair the Fence and Hedges betweene Catley Close Fursey Close which Fursey Close doth next adjoyn to the Close called M. where the Cattel were chased and shews that the Plaintiff put his Cattell in Catley Close to feed the Grass there which by default of inclosure escaped into Fursey Close as above but he said that between Catley Close and Fursey Close there is a little Brook which Brook at the side of Catley close had a banck next adjoyning to it which banck the Lessor of the Plaintiff and those whose Estate they have c. have used time out of mind c. to repair And that the Brook at the side of Fursey Close had another Brook next adjoyning which the Defendant used to repair and shews because the Plaintiff had not repaired the banck on the side of Catley Close the Cattell did escape into Fursey Close and stayed in the Close called M. By reason whereof the Defendant chased them as it was lawfull for him to doe whereupon the Plaintiff demurres and adjudged for the Plaintif for the Defendant had pleaded a good Barre and the Plaintif had replyed a good replication and had removed the fault from himselfe and laid it upon the Defendant by his negligent inclosure between Catley and Fursey and the rejoynder doth not confess and avoid the replication but perplexes the matter by adding one point of prescription on the Plaintiffs part that he ought to repair one banck between Catley and Fursey upon which an issue could not be taken for then two prescriptions should be an issue together which cannot be no more then two affirmatives as the 5. H. 7. 12. And also the matter contained in the Records doth not answer the matter contained in the Replication but by way of Argument only And whether that be true is no matter in evidence against the Plaintiff who is bound to prove his Replication true For the Plaintiff saith that Catley and Fursey doe lye together that is without any space between them And the Defendant in his Rejoynder saith there is a banck between Catley and Fursey which if it be so they do not lye together but the Defendant ought to have traversed the prescription alledged by the Plaintiff which had made an end of all the matter which observe was by the opinion of the whole Court SVtcliffe against Constable Trin. 10. Jac. Ch. Constable 32. Eliz. was seised in fee of the Mannor of East-hatfield in the County of Yorke and by his Indenture infeoffes H. Remingham paying for certain Lands parcell of the Mannor 60 l. at two Feasts with a clause of Distresse if it be behind by the space of 14. days Ch. 43. Elizab. by Indenture bargains and sells the 60 l. Rent to the Plaintiff which was inrolled by reason whereof he was seised of the Rent for the life of Ch. and being so seised loses that part of the Identure sealed by Remingham which the said day to wit the 24. Novemb 44. Eliz. came to the hands of the Defendant who by Force and Armes teared the seale of the Indenture against the Peace c. to his damage of 400 l. The Defendant pleads that Ch. hath not granted the Mannor of E. to Remingham paying the rent c. in manner and form and the Plaintiff demurres upon this Plea And it was argued that the Bar was good which is a direct traverse to the title of the Plaintiff to destroy the ground of the Plaintiffs action for if no rent were granted then the Indenture concerning which the Plaintif complains did not belong to the Plaintiff for it passes not to the Plaintiff but as an incident to the second Grant of necessity to make good his title As the Lord Buckhursts Case Co. 1. 7. E. 4. 30. in assize of rent the Plaintiff made his title by deed of a rent charge it was a good plea to say that nothing passed by the grant because the issue is taken upon the speciall matter and not the generall but in an Assize brought of an Office it is no plea to say there is no such Office for that amounts to no more but that he hath not disseised him 45. E. 3. In trespass for taking away of writing it is no plea to say that he never had such a writing but must plead not guilty So in an Action of Trespass for Goods it is no Plea to say that the property of them was to an Estranger and not to the Plaintif because by that plea hee denies not but that the Plaintif was in posaession which is sufficient to maintain the Action 20. H. 8. 28. which books prove that the Plea in Bar is not good for the Defendant destroys the Plaintifs Action but by way of Argument And the rent by such Action is not demanded but damages for tearing the Indenture and so the Title of Rent is not in question and exceptions were taken to the Declaration First the Action was brought for tearing the Counter-part by which the Rent was not created And the Indenture is not expresly granted to the Plaintif but the rent of 60 l. only is bargained and sold and by that the counter-part that pertains to Remingham doth not pass to the Plaintif as an incident for it is not the Originall Deed by which at first the rent was reserved which was granted by all but the Cheife Justice for he said that the counter-part waited upon the interest and was good evidence for that Secondly the Plaintif had not averred that Ch. for whose life the Rent was granted was alive at the time of tearing the Indenture and if C. was dead the Indenture pertained to the Defendant of right as Heir of Ch. for so much appeared by the Plaintifs own shewing which was granted And thirdly the Plaintiff shewed not that ever hee was posaessed of the Deed but by way of Argument to wit that he casually lost it which is not sufficient for none shall have trespass but he who is in actuall posaession which was also granted by the Court. Fourhly the counter-part whereof the Plaintif complains by the Plaintifs own shewing contained as well a warranty as the rent reserved And therefore without a special gift made of that Deed by Ch. to the Plaintiff that Deed doth not pass by Law to the Plaintiff as it is adjudged in Lord Buckhursts Case Fifthly if Ch. the Father be dead then the writing hath lost his force as to the rent for by his death the rent is determined and therefore of necessity the Plaintiff ought to averre the life of Ch. For no Action lies for a Deed that is determined and for these reasons the Plaintiff did discontinue his Action An Action of Trespass was brought for entring into a mans House and continuing there divers dayes c. And after a Tryall and verdict for the Plaintiff Yelverton moved in Arrest of Judgment and shewed for cause that the Plaintiff had declared with a continuando for breaking
Disseisin and Doddridge sayd It would be mischeivous if it should Hill 6. Iac. In the Common Pleas that if in the Common Barre in Trespass the place in the Common Barre is alledged to be Blackacre the Plaintiff may plead that it is his Free-hold and then it was held by the whole Court that an abuttall of one side is sufficient without alledging it of every side SWaine against Becket An Action of Trespass brought for cutting down of Trees And upon a speciall verdict the question was that whereas there is a Mannor wherein are Copi-holders for life which have used to lopp Trees growing upon the Copy-holds for their necessary fire and repairing of their customary Tenements the Lord of the Mannor maketh a Lease of the Mannor for yeares excepting the Trees the Lessee of the Mannor granteth a copy for life the Copy-holder loppeth the Trees growing on his Copy-hold whether by law he might do it or no was the doubt of the Jury And it was held by all the Court that the Copy-holder might lopp the Trees because he is in by the custome which is above the Lords Estate after he is admitted and that the copy-hold doth not depend upon the Lords interest And that the Trees excepted and the Soil remained parcell of the Mannor because the Lease was but for years but if the Lease had been for life it had been otherwise because it had been severed from the Mannor And whereas it was objected that the Tenant should not be in a better condition then his Author it was answered that a Lord of a Mannor at will may grant a copy for life or in fee and it is good If the Lord cut down all the Trees so that the Copy-holder can have no lopping he may have his Action upon the Case against the Lord as it was adjudged in Gosnolds case If the Lord sell away his waste and the Copy-holder dye and the Lord grant a new copy he shall have his Common If the Lord sell away the Trees so that the Copy-holder cannot have Estovers because the Bargainee felleth down the Trees the Copy-holder shall have his Action against the Bargainee Common and lopping are incident to the copy-hold Judgment for the Defendant HArris against Ap-John An Action of Trespasse brought the Defendant pleads not guilty and verdict found for the Plaintif And in Arrest of Judgment it was alledged that the venire facias was de placito debiti and so also was the habeas corpus and it should have been de placito transgressionis And it was amended by the whole Court MYnwinnock against Bligh Trin. 16. Jacob. rotulo 1697. An action of Trespasse brought for breaking the Plaintiffs Close done Septemb. in the 13. year of King James The Defendant pleads as to part of the Trespasse in award and that the Defendant submits himself to the award the 15. yeare and that the Arbitrators in the 13. yeare which was before the submission made the Award and traverses that he was guilty of the Trespasse after the award made And the Plaintiff replies that the Arbitrators the said day in the 13. year made not any award c. And after Tryall exception was taken that the issue was ill joyned being of a thing that was void yet notwithstanding Judgment was given for the Plaintiff and they resembled to a payment upon a single Bond and conditions performed at a Feast not contained in an Obligation Trin. 15. Jac. rotulo 3044. An Action of Trespass brought wherfore by force and armes his Goods and Chattels to wit a thousand posts and forty railes took and caryed away and damages given intire and after a verdict exception taken because Rales was pretended to be no Latine word nor to have any exception but Judgment was given for the Plaintiff DVncomb against Randoll Hil. 9. Jac. rotulo 2267. Three issues in Trespasse One issue was upon a prescription to wit that they had accustomed to have for himselfe his Farme and Tenants of the same Mannor common of pasture in the said c. for all his Sheep which are levant and couchant in and upon the Demesne Lands of W. which lye and are in A. aforesaid every yeare And exception was taken for the uncertainty because it did not appear that those were demesne Lands which lye in A. for it was ill pleaded and ought to be averred but notwithstanding it was held good after a tryal and Judgment was given for the Plaintiff and in this case an exception was taken to the venire facias because it was of A. and of the Mannor of C. and because it was made in this manner to wit de visu de A. and de visu manerij de C. but it was disallowed because against the form used in the Common Pleas. DOwnes against Skrymsher Trin. 9. Iac. rotulo 334. An Action of Assault and Battery brought and there was a Demurrer upon the Evidence And the case was that the Defendant the day specified in the Declaration said that the Plaintiff assaulted the Defenant and in defence of himselfe justifies the beating the Plaintiff replies that he did it of his own wrong without any such cause and in the Evidence the Defendant maintained that the Plaintiff beate him the day mentioned in the Declaration and in the same place And the Plaintiff perceiving that gave in evidence that the Battery was made another day and place to wit c. which was the cause of the speciall verdict for if there be two Batteries made between the Plaintiff and Defendant at divers times the Plaintiff is bound to prove the Battery made the same day in his Declaration and shall not be admitted to give another day in evidence by the opinion of the whole Court HEydon against Mich. 8. Jac. rotulo 839. An Action of Battery brought against three two of them pleaded not guilty and Judgment by non sum informat against the third and the two were found guilty for all And the Jury gave damages severally against one a 100 l. and against the other a 100 s. and what Judgement should be given was the question and at first the Court was of opinion that the Plaintiff should not have Judgment at all for where the Defendants are found guilty of all the Trespass in this case the damages shall be intire but if one shall be found guilty of part or at another time in this case the damages shall be severall otherwise not And they thought a Venire de novo ought to issue out because the Jury had mis-behaved themselves in severing the damages but afterwards it was resolved that the damages that were given by the first Jury to wit one 100 l. should be recovered against all the Defendants in that Writ named and that in Trespass the first Jury taxes the damages for the whole Trespass and that shall bind all the Defendants and therefore execution was given against all the Defendants for the hundred pounds Trin. 9. Jam. rotulo 1835.
BAnks against Barker Hill 12. Jac. rotulo 1979. In an Action of Trespass the venire facias was well awarded upon the case of the venu in Westown and of the Mannor of D. and the Writ of Venire was mistaken to wit of the venu of Westown and exception being taken after tryall the Court was moved for the amending of the venire facias by the roll and it was denyed because the Jury did come of another venu then they ought by the Law of the Land to come and therefore could not be amended but afterwards the Court seemed to be of an opinion that the awarding of the venu in the roll was mistaken because it was of the venu of the Villiage and Mannor and it should have been of the Mannor only being to try a custome of the Mannor FOrrest against Headle Hill 13. Jac rot 1123. An Action of Trespass brought and a continuando of the Trespass unto the day of the shewing forth the Plaintifs Originall to wit the 20. day of November which day was after the shewing forth of the Originall and because the Jury gave damages for the whole time which ought not to be it was proved that the Judgment upon the verdict might stay but by the whole Court the videlicet was held idle and Judgment given for the Plaintiff COcks against Barnsley Hill 10. Iac. rotulo 2541. An Action of Trespass brought and a speciall verdict found and the question was whether Land held in ancient Demesne was extendable for debt and an action of Trespass brought for that cause And Justice Nichols held it was extendable for otherwise if it should not be extendable there would be a fayler of Justice for if a Judgment should be had against a man that had no other Land but what was in ancient Demesne and that it could not be extendable there would be a fayler of Justice which the Law doth not allow of but an Assize or a re-disseisin doth not lye of Land in ancient Demesne because of the Seisin that must be given by the Common Law and it would be prejudicial to the Lord which the Law allows not and Wynch and Hubbard were of the same opinion For ancient demesne is a good plea where the Free-hold is to be recovered or brought in question but in an action of Trespass it is no plea. And note that by this execution neither the Free-hold nor Possession is removed but only the Sheriffe enters to make execution upon a Judgment had in the Common bench in debt which is a proper Action to be brought there WRight and his Wife against Mouncton Hill 12. Iac. rotulo 43. An Action of Trespass brought to which the Defend pleaded not guilty And the Husband only made a challenge that he was servant to one of the Sheriffs and prayes a processe to the Coroners and the Defendant denies the challenge and therefore notwithstanding the challenge the Venire issued to the Sheriffs and after a tryall exception was taken because the woman did not joyne in the challenge and it was held that the Husband and Wife should joyn in the challenge although the cause of challenge proceded from the Husband only but after tryall it was helped by the Statute of Ieofailes and judgment given for the Plaintiff BIde against Snelling Hill 16. Iac. rotulo 1819. An Action of Ejectment brought and also a Battery in one and the Writ and after a verdict it was moved in Arrest of Judgment because the Battery was joyned with the Ejectment The damages were found severally and the Plaintiff had released the damages for the Battery and prayed Judgment for the Ejectment Winch held the Writ naught but Judgment was given for the Plaintiff notwithstanding STeward and his Wife against Sulbury An Action of Trespass brought wherefore by Force and Armes the Close of the Wife while she was sole at D. hath broken and the wood of the said D. to the value of 1005. there lately growing hath cut down and carried away and in his Count shews that he hath cut downe two acres of wood and exception was taken because he declared of so many acres of wood and not of so many loads of wood to wit twenty c. loads and held by the Court to be a good exception BLackeford against Althin Trin. 14. Jac. rotulo 3376. An action of Trespass brought wherefore by Force and Armes a certain Horse of the said Plaintiffs took away c. The Defendant conveys to himselfe a certain annuity granted to him by one John Hott The Plaintiff shews that one William Hott Father of the said Iohn Hott the Grantor was seised of Land in Fee which Land was Gavel-kind Land and devised it to his Wife for life the remainder to Iohn Hott the Elder and Iohn Hott the Younger his Sonne and the Heirs of their bodies And afterwards William dyed and the Woman entred and was seised for life and the two sonnes entred and were seised in tayl and being so seised Iohn Hott the younger had issue Iohn Hott c. and traverses without this that Iohn Hott the Father at the time of granting the annuity was seised of the Tenements aforesaid with the appurtenances in his Demesne as of fee as c. And the Defendant as before saith that the said J. H. the Father at the time of the granting the annuity aforesaid was seised and after the tryall it was moved in Arrest of Judgment supposing it was mistried because the issue was that the said J. H. the Father at the time of the grant c. And it doth not appear that the said J. H. was nominated Father neither could it appear that the said J. H. was the Father and so the word Father was idle and the Court were of opinion that it was helped by the Statute of Ieofailes and the word Father was idle and judgment was given for the Plaintiff A. brought an Action of Battery against the Husband and Wife and two others the Wife and one of the others without the Husband pleads not guilty and the Husband and the other pleaded seu assault demesne and tryed and alledged in arrest of Judgment because the Woman pleaded without her Husband and Judgment was stayed and a Repleader alledged and this case was confirmed by a case which was between Yonges and Bartram HArvy against Blacklole Trin. 8. Jacobi rotulo 1749. An Action of Trespass brought wherefore by force and Armes his Mare so strictly to a Gelding did fetter that by that fettring the Mare aforesaid did dye If a stranger take a Horse that cometh and strayeth into a Mannor the Lord may have his action of Trespass If my stray doth stray out of my Mannor and goeth into another Mannor the day before the yeare be ended I cannot enter into the other Mannor to fetch out the stray If I take an Horse as a stray and onother taketh him from me the Action lyeth not by the Owner against the second taker
because the first taker hath devested the property out of the Owner The Defendant in this justified the taking of the Mare as a stray and did not alledg that he came as an estray and the Plea was held insufficient and the Court held they could not tye them together And the Defendant said that the Hayward took the Mare and delivered her to the Defendant this was but not guilty and Judgment for the Plaintiff LVttrell against Wood and other Defendants Pasch 40. Eliz. An Action of Trespasse brought wherefore by Force and Armes he broke the Plaintiffs Close and cut down his Trees The Defendant in Barre to the new assignment alledges that he is a Copy-holder for life of the Mannor of Mynehead in the County of Somerset and that in that Mannor there was a Custome that every Copy-holder for life had used at his pleasure to cut downe all the Elmes growing upon his customary Lands and to convert them to his own use when and as often as hee would and so justifies and a Demurrer upon the Barre And the question was whether the Custome was good and reasonable and the later opinion was that it was a good and reasonable Custome but now it is otherwise held Actions of Waste IN Waste the Writ shall be brought where the Waste was committed And the Processe in this Action is Summons Attachment and Distresse peremptory by the Statute of Westminst 2. But at the Common Law the Distresse was infinite And if the Defendant doth not appear upon the Distresse although a Nihil be returned yet the Plaintiff shall have Judgment and a Writ to inquire of damages of the Waste and an Essoine lies as in a Quare Impedit and the Processe shall be executed as in a Quare Impedit and returned from 15 dayes to 15 dayes and the Plaintiff in this Action shall not recover costs but the value of the Waste found by the Jury shall be trebled by the Court for costs shall not be recovered in such Actions as are given by the Statute as in this Action a Decies tantum and Quare impedit And so Judgment is to recover the place wasted and severance lies in this Action Mich. 9. H. 4. rot 104. And note in the tryal of the issue in Waste if the Defendant by his Plea doth not confess the Waste six of the Jury which are impannelled to try the Waste must have the view of the place wasted to the intent that the Plaintiff may be put in possession of the place wasted by the view of the Jury And if the Defendant confesse the Waste the Jury ought only to inquire of the value of the Waste but not who committed the Waste But upon a default upon the grand Distress the Sheriff in his proper person shall repair to the place wasted and there inquire what waste and spoile is done And if he doth not return that he was there in his proper person it is naught But upon a Judgment by non sum informat nil dicit or in a Plea by which the Defendant confesses the waste the Sheriff shall inquire only of the damages And he is not bound to return upon that Writ that he in proper person went to the place wasted And when the Judgment is by default the challenge lies against the Sheriff and if it be denyed it is Errour And if the Plaintiff do not take jungment upon the first distress being returned executed but takes another distress it is Error And no receit lies by the VVife upon the default upon the Distress at the return of the VVrit to inquire of the wast Trin. 6. H. 6. rotulo 133. For if the VVoman at the Assize before verdict doth not pray to be received she shall never be received afterwards in the Court at the return of the Nisi prius And note that the Jury may give severall values and one joynt value of the place wasted but severall values is the better way If a Lessee for yeares makes a Lease of one moity to one man and of the other moity to another man and one of them commit Waste the Action shall be brought against the two for the Waste of one is the Waste of the other if a Lease be made by three to one for life and afterwards two release to the third and the Lessee commits wast he alone shall have a Writ of Waste supposing that hee demised onely If Waste be committed in two Villiages and the Sheriff hath executed his Office naughtily in one Villiage and well in another all shall be inquired of De novo because the whole in Inquisition was but one Inquest at one time but if the Plaintiff assigne the Waste in the Houses and Woods and it doth not appeare by the Count that the Houses were demised and upon a Nihil dicit a Writ to inquire of the damages issues out and the Jury find c. the Plaintiff shall have his of the Houses BEdell against Bedell Trin. 8. Jacobi rotulo 3052. An Action of Waste brought the Case was There is a devise to two for one and twenty yeares the Father and Son and made the Son Executor and he refuses to prove the Will and take the terme and so no Waste committed And if Lessee for life and his Lessor joyne in a Lease for yeares by Indenture and the Lessee for life dye and waste is committed the surviving Lessor shall have the Action of Waste and shall count that he did demise it alone If a Lease be made to Husband and Wife for life and for twenty yeares after their deaths and the Wife dye and Waste is committed the Wife shall not be named in the Wriâ— nor the terme after her death If Husband and Wife during the Coverture make a Lease and Waste is committed they both shall joyne in the Action of Waste And if a Lease be made but for one yeare or for halfe a yeare onely yet the Writ shall be for a terme of years but the Count shall be speciall if a Lessee for yeares or life grants Rent out of the Land he had for yeares and afterwards commits Waste if the Lessor recover the place wasted the Land shall be charged If a Lessee for a hundred yeares grants part of his terme to another and be commits Waste the Action shall be brought against the first Lessee If Tenant for life commits waste and afterwards grants his estate to another waste shall be brought against him in the Tenet and after Judgement a Scire facias shall issue to the Grantee to shew cause wherefore the Plaintiff shall not have Execution of the place wasted and the like if Lessee for yeares commit waste and grants over his Estate Waste shall be brought against him in the Tenet And if a Lease be made for life upon condition that if the Lessee shall do such an Act his Estate shall cease and he doth commit such an Act the Writ shall be brought against the Lessee in the Tenet
Estcourt and Harrington 272 Earl of Rutlands Case 330 F. Forde versus Pomroy 9 Fetherstones Case 168 Flemming and Jales 280 Freeman against Baspoule 309 Foster against Jackson 311 G. Glover and Wendham 10 Gaudey against Newman 38 Gargrave against Gargrave 52 Gravesend Case 177 Goodyer and Ince 208 Gittins against Cowper 217 Grimes against Peacock 222 Godsalls Case 270 H. Hurrey against Boyer 8 Huntley against Cage 14 Hurrey against Bowyer 20 Hamond against Jethro 97 Hamond Strangis Case 102 Hill againstVpchurch 121 Hall against Stanley 124 Holcraft against French 137 Higgins against Piddle 149 Hare and Savill 273 Heyden against Smith 328 I. Jones against Boyer 27 Jennings against Audley 30 James versus Reade 47 Jacob against Sowgate 12â— Ireland against Smith 166 K. Kenrick against Pargiter and Phillips 60 Kemp and Phillip his Wife James and Blanch his Wife against Lawrere and Trallop and the Wife of Gunter 144 L. Linch against Porter 1 Legates Case 41 Lampit against Margeret Starkey 17â— Lawry against Aldred and Edmonds 183 M. Master Brothers and Governours of Trinity house againsi Boreman 13 Mallet against Mallet 133 Marstons Case 167 Manley against Jennings 176 Marsam against Hunter 209 Miller and Francis 277 Michelborn against Michelborn 296 Mors against Webbe 297 P. Parkers Case 7 Penns Case ibid. Priddle against Napper 25 Powis against Bowen 29 Parkers Case 37 Petty against Evans 40 Pyat against the Lady Saint-John 56 Portington against Rogers 65 Pits against Dowse 74 Petoes Case 75 Patrick against Lowre 101 Prowse against Worthing 103 Peto against Checy and Sherman and their Wives 128 Peacock against S George Reynel 151 Proctor against Johnson 212 Payne and Mutton 276 R. Robotham and Trevor 11 Reyner against Powell 42 76 Rowles against Mason 85 192 Robinsons Case 271 Rivit against Downe 279 Read against Fisher 297 Rutlage against Clarke 308 S. Symonds against Greene 16 Sir William Chanceyes Case 18 Sir John Watts 29 Sir Edward Ashfeild 48 Styles against Baxter 49 Sturgis against Deane 57 Sir Richard Bulkley against Owen Wood 100 Sir Ed. Puncheon against Legate 137 Sir Henry Rowles against Sir Robert Osborne and Margeret his Wife 169 Strobridge against Fortescue and Barret 190 Sammer and Force 208 Styles Case 216 Stydson against Glasse 223 Simson and Waters 272 Smallman against Powes 291 T. Tey against Cox 35 Tresham against Lambe 46 Trobervill against Brent 97 Tyrer against Littleton 187 The Lord Rich against Frank 202 Trinity Colledge Case 243 The Towne of Barwick 270 The Duke of Lenox Case 301 V. Vivion against Wilde 290 W. Wagginer and Wood 9 Westons Case 11 Wallop against the Bishop of Exeter and Murrey Clark 45 Wickenden against Thomas 58 Weeks against Bathurst 102 Water against the Deane and Chapter of Norwich 158 Warbrook and Griffin 254 Waggoner against Fish 278 Waggoner against Fish Chamberlaine of London 284 Y. Yates and Rowles 207 THE SECOND PART OF BROWNLOWE'S REPORTS Containing divers excellent Cases and Resolutions in Law Lynche against Porter THE Plaintiffe in Prohibition suggests that hee inhabited in London within the Diocesse of the Bishop of London and was cyted to appeare in the Court of the Arches and was out of the Diocesse of London without license of the Bishop of London against the Statute of 23. Henry 8. And upon the first motion the Court gave rule to the Defendant to shew cause why the Prohibition should not be granted and to heare the Civilians and to conferre with them concerning the practise and expounding of the Statute of 23. H. 8. Chap. 9. And at the day appointed three severall Civilians came into the Court and were heard according to the former Order and they say that they use to cyte any Inhabitant that inhabits in London to appeare and to make answer in the Arches originally for the mischief that the Statute of 23. H. 8. intends to prevent was that those which inhabite in Dioces remote from London should not be sued here without licence from the Ordinary but this mischiefe was not in this case And Doctor Martin saith that so it was used by the space of 427. years before the making of the Statute and then was complaint made thereof to the Pope and he was answered that it was the use that any man might be cyted to the Arches out of any Diocesse in England and also that the Arch-Bishop may hold his Consistory in any Diocesse within his Jurisdiction and Province And also that the Arch-Bishop hath concurrent Jurisdiction in the Diocess of every Bishop as well as the Arch-Deacon And then if the suit be first begun in the Court of the Arch-Bishop or the Bishop or Arch-Deacon it ought to be there determined where it had its beginning and shall not be inhibited And then it was objected by Cooke chief Justice that the Statute of 23. H. 8. was affirmed by Canon 94. And this sheweth the agreement of the Civilians with the said Statute And to this Doctor Martin answered that the said Canon was made in the vacancy of the Church of Canterbury for the Sea of the Arch-Bishoprick was then void and also he said that the Arch-Bishop of Canterbury prescribes to hold plea of all things and of all persons in England And the Pope hath no power to make Canons against the Law nor against any Custome or Prescription and for this it shall be void and that shall not bind the Arch-Bishop which is against the said prescription and also it seems to the Civilians that the exposition of the said Statute being the Ecclesiasticall Statute appointed to them And also it was said by them that this detracts from the Arch-Bishops Jurisdiction against the custome of the Realm and every Subject hath interest in that And also that the Bishop takes notice that they hold plea of the said cause and took no exception and that made a sufficient assent and amounted to a license in Law and so concluded that a prohibition ought not to be granted in this Case Coke cheife Justice saith that the Mischeife which the Statute of 23. H. 8. was not only to prevent the mischeife that those which inhabited in places remote from London should not be cyted to come to the Court of the Arch-Bishop but also to give to them other priviledges which by the Law they ought to have that is the Appeale that they loose by the beginning of the Suit in the Arches for they may appeal from the Ordinary after the suit begun here to the Arch-Bishop which benefit is lost if the suit be begun before the Arch-Bishop originally and for that the Inhabitants in London are as well within the Mischeife as the body of the Act of 23. H. 8. And also that at the making of the said Canon the Arch-Bishop of Canterbury which late was had the Jurisdiction of the same then committed unto him he then being Bishop of London So that upon the matter he was Arch-Bishop of Canterbury so that the unity of the Sea of
proceedings there And it was granted in so much that the originall ground of the Suit that is the infamous words were pardoned by the generall pardon and for this all the proceedings were erroneous and their transmitting after And afterwards the Prohibition received willingly And for these causes Prohibition was granted to the Court of Requests Thomas Baxter against Thomas Hopes IN Prohibition the Plaintiff Suggests that within such a Town was such a custome that every Inhabitant which maintained a family and dairy for manuring his land and maintenance of his family have used of time out of memory c. to pay tythes of Corn growing upon his Farm in kind and by reason thereof have used to be discharged of after crop of the said land And also that they have used to pay tythe milk and tythe Calves in kind and by reason thereof have been discharged of tythe of yong and barren Beastes and the Plaintiff suggested further that he occupied a Farm and maintained a family and dairy for the manurance of that and maintenance of his family and hath paied his tythe Corn and milk and Calves in kinde And for that ought to be discharged of tythes for the after crop and for yong and barren Beastes and for the tenthes of which suit was begun in the Court Christian and upon demurrer joyned upon Prohibition the custome was debated whether it were good or no and it was moved first by Houghton Serjeant for the Defendant that the custome was not good insomuch that by that the Plaintiff was not to pay more then by the Law he ought for he ought to pay tythe Corne and milk and Calves in kind And this is no more then the Law compells him to do and this cannot be a consideration to discharge him of other things For all things which renue ought to pay tythes of Common Right as after pastute and barren Cattell and Corne and milk And all other things which renue if it be not good custome to the contrary which is grounded upon consideration and then to consider how much consideration shall be valuable in other Cases and what not And to that it appeares in 9. Ed. 4. 18. and 19 in Trespasse upon the Statute of 5. Rich. 2. The Defendant pleads accord that the Plaintiff entred into his land againe and agreed that that was not barr insomuch as agreement without satisfaction is not barr and entry into lands is no more then he might do without the agreement and for that it is not good for default of consideration so in 12. H. 7. 15. a. in trespass for goods taken the Defendant pleads arbitrement that is for that that the Defendant hath taken the goods of the Plaintiff and that he should deliver them to the Plaintiff in full satisfaction And agreed that this is no good award insomuch that this cannot be satisfaction for that that the goods were the proper goods of the Plaintiff And although that he hath his goods againe yet he is not satisfied for the taking But if the award had been that the Defendant should redeliver his goods and carry them to such a place certain at his own costs and charges then it had been good See 45. Ed. 3. accordingly So in an action upon the Case upon an Assumpsit made in consideration that the Plaintiff hath payd due debt is not good for this is no consideration and so in the principall Case the Prescription is not good insomuch that he hath not suggested more or other consideration which by the Law he ought to do But he agreed that if he had suggested that the Plaintiff had plowed and manured the land and disposed of the tythes of the Corn for the benefit of the Parson in other manner then the Law compelled him then the first prescription had been good and so he concluded and praied Judgement for the Defendant Hutton Serjeant for the Plaintiff in the Prohibition seems the contrary and that the Suggestion and Prescription and Custome Contained in that are good And to the Objection that it is no consideration that the Custome may be founded he intended that this is a ground upon immunity subsequent to the Consideration as of things which are not tythable as in the generall Case of things which are for the maintenance of the family for Plowing and Manuring of the land shall not pay tythes as in a suit for tythes for herbage suggestion that they were depastured by labouring Cattell which Plowed and Manured the Land of which the Parson had tythes or small Wood which are cut or imployed for the fencing of a Farm or fuell spent in the Farme shall not pay tythes insomuch that without that the Farme cannot be Manured nor the Famaly sustained And so by consequence the Parson shall not have any tythe Corn insomuch that no Corn will grow without manuring and also the Parson by those hath the more tyth Corn and so he hath consideration in that for the better that the Farme is fenced and manured the more tythe the Parson shall have So the Farmer may be discharged of tythes for Rakeings insomuch that he Mowes and Cocks the tythes for the Parson at his own costs and this is sufficient consideration And also he insisted upon the Statute of 2. Ed. 6. Which provides that tythes shall be payd in the same manner as they were payd for 40. yeares before and he cited one Jessopps case to be adjudged in Prohibition Pasche 36. Eliz. Upon suit in Court Christian for flocks and locks of Wooll And the Custome was alleaged that the owner had woond the tythe for the Parson and in consideration of that ought to be discharged of tythes of locks and flocks if they be not made by Covin to defraud the Parson and these were demanded by the name of wooll dispersed and 18. Eliz it was adjudged that tythes shall not be made for Brick and in Prohibition the suggestion was grounded upon the generall immunity and insomuch that it was made of land for which no tythes are to be payd insomuch that it doth not renue that for this cause tythes ought not to be payd for the Brick which is made of that and so of Mynes and so Loppings and Toppings and bark of Trees shall pay no tythes But are within the Statute of 40. Eliz. 5. of wood to be falne as it is resolved in Soby and Molyns case in the Commentaries And he agreed that for herbage the tenth gate or proffit of that ought to be payd if there be not a custome to the contrary but in the Principall case he intended that that was payd in the Corn and in that the Parson hath recompence and consideration as before and so he concludes and praies Judgment for the Plaintiff Dodrigde Serjeant of the King argued that the Custome is not good as it is here suggested for the consideration is of some things which ought to pay tythes in kind and so upon the matter is no sideration at all
for he intended that tythes should be due by divine right as due by the Manuring and Tillage of the occupier in whose soever hands that the land commeth if it be not in the hands of the Parson himselfe 30 H. 8. 43. Dyer 20. And for that a Parson shall have tythes against his own Feoffment 43. Ed. 3 13 a. 1. Coke Albanyes case 111. a. 32 H. 8. B. Tythes the 17 accordingly and unity of possession shall not extinguish them And also he intended there are two manner of persons which are discharged of paiment of tythes One Spirituall the other Temporall the spirituall in respect of their Order and the temporall in respect of Custome and Prescription and also by grant as it is agreed in the Arch-Bishop of Canterburies Case 2. Coke but this is in the case of a spirituall man before the Statute of 32 H. 8. which was capable of them in taking and that he might prescribe in not Tithing but a lay man cannot be discharged but for satisfaction and consideration for he cannot prescribe in not Tithing and for that in the case here the thing to be considered is if it be sufficient satisfaction and consideration and to that he intended that the payment of a duty that is Tyth Corn and Tyth Hay cannot be satisfaction consideration for another duty and this was the Reason of Piggot Hernes Case that the Lord of a Mannor in consideration of 20. Nobles yearly paid to the Parson prescribes to have the tithes of a Hamlet and in consideration of that the Lord himself and his Tenants were discharged of payment of Tithes but there the consideration and satisfaction was the cause which made the custome good see 2. Coke 45. a. And then he proceeded and examined the manner of the satisfaction in the principall case which is that the Plaintiff shall pay tyth Corne and Hay and nothing for Milk and Calves but by reason thereof shall be discharged as if he should say that because he payeth tythe Corne therefore he shall pay no tithe Milk and he intended that the nature of satisfaction is to give content to the party as if the prescription had been that the Plaintiff should pay so much Money and in consideration of that or that he shall make the tithe in Cocks or rake it or mow it at his owne charge this is a good prescription aed there are diverse presidents of that but no president is of this forme as the case here is for money shall be intended the greater value and more beneficiall for the Parson then his Tithes in kind and Money is the value of every thing and may give contentment to the party which receives it he cited Bookes of 9. Ed. 4. 19. and 12 H. 7. 15. and 2â— H 5. 2. a. To the same intent which were cited before by Haughton that is which agree in Arbitrement and the Plaintiff entred into his own Land or that the Defendant delivered to the Plaintiff his own goods which the Defendant had taken from him it is not good for it cannot give contentment to the party otherwise it is if it be that the Defendant shall carry them to another place and there shall deliver them for it cannot be satisfaction and contentment to the party and for that that here the Plaintiff hath not made more then the Law compells him and that it was his own duty and for that the prescription wants consideration it shall not be good and also by reason thereof it can be no good discharge for this cannot be satisfaction but he said it was adjudged Pasch 20 Jacobi between Hall and Aubery that Money was a good consideration and satisfaction for tithes and so he concluded and prayed judgment for the Defendant note that this cause was adjudged Hillary 8. Jacobi upon solemn argument by all the Judges with one voice that the Prescription was good Haughton Serjeant moved for a Prohibition for that the Suit was begun in the Admirall Court upon Charter party made beyond Sea upon the Land and Prohibition was granted though it be for a thing made in Paris or in another place beyond the sea if it be not upon the Main Sea but if the Defendant there admitts the Jurisdiction of the Court and suffers sentence then the Court will not upon a bare surmise grant a Prohibition after the admittance of the party himself if it be not in a thing which appeareth within the Libell that is that the Act was not made within the Jurisdiction of the Sea and to this difference all the Court agreed If a Court Baron divide a Debt of thirty pound in severall parcells under forty shillings and so proceeds in severall Actions Prohibition shall be granted see Fitzherberts Natura brevium and 19 H. 6. Hane was cited out of his Diocesse into the Arches and he pleaded to the Libell and sentence is given against him for costs and after that Prohibition was granted and upon that consultation was prayed for that that the Defendant was the party greeved and ought to have pleaded the Statute insomuch that the Statute was made for his benefit but if it appears by the Libell that the Court of Arches need not to have Jurisdiction then it seems that the Prohibition was well granted as in Sir Henry Vinors Case he began a suit in the high Commission Court for the not serving of a Chappell and the Court understanding that they had no Jurisdiction remitted the cause to the Ordinary and yet gave sentence against Sir Henry Vinor which was Plaintiff for Costs and for that he prayed a prohibition and it was granted to his Petition notwithstanding that he himself was the party who begun the suit there as it was remembred by Nicholls Serjeant A Woman sued in the spirituall Court for Defamation and the words were That thou mayest be an honest woman but thou playest too much with a thing c. And Prohibition was prayed insomuch that these words were not Actionable for in Spellmans reports Prohibition was granted for that they proceeded there for calling a Minister Knave Preist and also by these words a white Cloake is more fitter then a black cloake for him for action upon the case doth not lye for these words by any Law but the Prohibition was not granted Pasch 11. Jacobi Prohibition Tey against Cox PRohibition was prayed for that that one was cited out of his Diocesse before the Arch-Bishop of Canterbury as Keeper of the Spiritualties in time of the vacation of the Bishopprick and it was denyed but if he had beene to appeare before him as Metrapolitan otherwise it should have been insomuch that this is against the Statute of 23. H. 8. And also for his own Canon but in this case the Statute of 23 H. 8. And also their own Canon but in this case the ArchBishop hath done as he ought and for that the Prohibition was denyed see 17 Ed. 2. Fitz. Na. Bre. 822. and
of a month together or two Moneths to be accounted at severall times in any one year and makes his residence and abiding in any other places by such time that then he shall forfeit for every such default ten pounds the one halfe to the King and the other halfe to the Informer and if the said Doctor Newman was not resident and incurred the penalty of this Statute was the question and it was argued by Haughton that he had incurred the penalty of the Statute and was non-resident within the intent and he argued that to some intent all the Parish may be said the Benefice of the Parson for that that he hath benefit out of it and he is called Parlon of such a Town or Parish but this is not the Benefice that the Statute intends upon which he ought to be resident as in the 29. Assise 55. If a Corrody be granted out of an Abby it shall not be intended out of the seat of the Abby out of the Booke of 29. Assise 8. Where it is said that if a Rent be granted out of a Priory that all the possessions of the Priory are charged as to that he saith it was but it was said and not Judgment and also the said Bookes may be well reconciled for it is more proper that the seate of the Abby shall be charged with the Corrody and the possessions of the Priory with the Rent and also he said there were seven causes of making of the said Statute whereof but two are to our purpose the first is Hospitality second releife of the Poore and these are to be done in the Parsonage house for this is the free Almes of the Church and so it was adjudged 34 of Eliz. in the Kings Bench Broome and Hudson and in this Court also and in this Court also in the 40 of Eliz. in the Kings Bench betwixt Butler and Goodall 6 Coke 21 b. that he ought to be resident upon the Parsonage house and not other where and he allowed and agreed that imprisonment without deceit and sicknesse are good excuses but so it shall not be a prejudice for the Parsonage house is in good repaire And so concluded that judgment shall be given for the Plaintiff And for the Defendant Barker Serjeant argued that it appears by the speciall Verdict that Doctor Newman held the Parsonage house in his own hands and occupation and did not let it upon which he gathered that his servants were resident upon it and to the exposition of the Statute he saith that it appears by Heydons Case 3 Coke 7. a. That the better means to expound Statutes is to consider the mischeife which was at the common Law before the making of that and when it is intended to be reformed by that and this appears by the Preamble of that Statute also he saith that before the Councill of Lateran a man might pay his tithes to whom he would but by the same Councill all the Parish is made the Benefice of the Parson for he receives benefit by that and yet he said that before the said Statute every spirituall man was bound and compellable by the Ecclesiasticall Law to be resident yet if he were in the Kings Service or an Officer in the Chancery he should be excused as it appears in the Register fol. 58. b. Though that he were Dean the which Office meerly requires his personall residence as it is there said and also he saith that the Case between Butler and Goodall was that the Parson demised all the Parsonage house but only one Chamber and was not resident in that but in a Copy-hold within the Town and so prayed Judgment for the Defendant this case was compounded by the Lord Coke but he intended this was no residence within the Statute for this was not his Benefice but the Tenants part of that as he said hath been adjudged in the Exchequer Hillary 8. Jacobi 1610 In Banco Communi Crogat against Morris THE Case was A Commoner brought an Action upon the Case against a stranger for that his Beasts came in and fed upon the Common and by Coke Walmesley and Warburton it lieth very well Foster to the contrary for then every Commoner may have the same Action and then it would be infinite Hillary 8. Jacobi 1610. In Bonco Communi 〈◊〉 against the Lady Saint John Postea 269. SEE for the beginning of this in Michalemas tearme last and that case was argued again by Hutton Serjeant for the Defendant that the parcelling of reversion destroyed the Covenant it was agreed in Winters case in case of condition and he agreed that that Covenant is within the Statute of 31. H. 8. chapter 34. as well as condition and for that Grantee of part of the Reversion shall not have an Action of Covenant for then if there be twenty Grantees every one of them shall have severall Action and this was not the intent of the Statute and as to the Common Law before the Statute a thing which gives action cannot be divided and he urged that when the Reversion of Fee simple was first granted if he may by that have an action then when the Reversion of the tearm was granted he may have another action and so a man may have two severall actions for one thing see 29. Assise 23. Three Coparceners were and Rent of five pound was allotted to two of them equally to be divided that is fifty shillings to one and fifty shillings to another and they two joyned in an Action and it is doubted if the Writ shall abate or not and 44 Ed. 3. 34. b. The Abbot of Westminster◠Case the Abbot made a Lease of a Mannor except the Wood and after by another Deed he let the Wood and the Lessee made Wast in the Mannor and the Wood and he brought one Action of Wast and it is not good and he agreed that one Formedon yeth upon two discontinuances for there was but one discontinuance and that is the cause of the Action but a man cannot have a Writ of Warrantia Charte upon two Deeds no more in the◠principall case for the Plaintiff hath his Title by two Deeds and so concluded and prayed Judgment for the Defendant Harris Serjeant argued of the other part for the Plaintiff that an action of Covenant lieth very well for the originall Lease was but one intire Lease and the Covenant was also intire and for that the Grantee of the Reversion shall have advantage of that and he agreed that in reall actions which alwaies are grounded upon the title and for that if it be grounded upon two titles he ought to have 2. actions according to his title but in personall actions where the action is grounded upon the deed another matter which comes Ex post facto which is the wrong which is the cause of the action for which damages I shall be recovered as it is said in Blakes Case 44. 6 Coke and this is the reason that a man may
not the accidentall as here it is but it is the substantiall forme and every one knows that Meale of Wheat is the same as Pepper beaten in a Morter and Pepper and all other Spices so that it is the same in number existence substance and essence and he intended also the same in intention for Meale is Victuall and is dead Victuall be it Corne or Meale and Corn grownd and made in Meale then sold yet that remains dead Victuall and Meale is the same dead Victuall though that it be not the same Corne and to prove that Corn is Victuall he cyted the Statute of 25 Edw. 3. 5. Stat. Chap. 7. Which provides that no Forester shall make any gathering of Victuals by colour of their Office and hee intended that Corne was within this statute and so also of the statute of the 3. P. and M. Chap. 15. Rastal Universities which provides that to the Purveyor Bargainor for any Victuals within 5 miles of any of the Universities of Oxford or Cambridg where Grain and Victuall are joyned together So the Statute of 25 H. 8. Chap. 2. abridged by Rastall Victual 15. which inhibits the transportation of Victuall if it be not of Meal and Butter into Ireland by which it appears that Meale is dead Victualls And he said that Victuals is that which refresheth men and Victualls are those things which to the use of eating and drinking are necessary So that Meale is the same in number though that the Corne were turned into Meale And he cyted Peacock and Reynolds Caâ—e to be adjudged 42 Eliz. That if a man buy Corne and convert that into Meale and so sell it it is within this Statute And hee said that if a man be made a Knight hanging his action that this shall abate his action but yet he remains the same person but his name is changed which is the cause of the abatement of his action 7 H. 6. 15. Also the Defendant is concluded by his demurrer upon the Information to say that it is not the same thing for this is confessed by the Demurrer and though that the name be changed this is not materiall if the substance be the same and he agreed that a Baker which buys Wheat and makes it into Bread is not within the Statute for he furthers that to the use of man as a Curryer makes the Leather more fit and apt for use but so doth not he which makes it into starch for he furthers the abuse for it is no lawfull Occupation but idle and friâ—olous furtherance of vanity of men And in 35. H. 6. 2. If a man enter into the Land of another man and cut Trees and that square and make into Boards yet if the Owner enter hee may take them But if it be made into a House otherwise it is for there it is mingled with other things as it is 5 H. 7. 15 16. So Iron made in Anvill But of Leather made in Shooes otherwise it is insomuch that it is mingled with other things 12 H. 8. 11. a. A dead Stag is not a Stag but is a certain dead thing and flesh As a man dead is not a man but agreed the Book of H. 7. 15. and 16. That Corne converted into Meale cannot be restored nor reprized no more may that if it remains in Corne if it be not in Baggs And hee said that upon the Statute of Merton the Re-disseisin after the Recovery in Assise if the same Disseisor makes Re-disseisin the Sheriffe may examine that c. And it is agreed in 27 H. 6. That if Tenant in tayle be disseised and recover in assise and is put in possession and after his Estate is altered and he become Tenant in tayle after possibility of Issue extinct and then the Disseisor makes Re-disseisin that this is aided by the statute not that it is alteration of the Estate And also he saith it appears more fully by the Proviso by which it is provided that Barley turned into Malt and Oates turned into Oatmeale if it be by Ingrossing it is within the purview of the statute So if it be by way of Fore-stalling or if they sell them again before that they are converted shall be Regrators And to the Objection that other things that is Water and Fire are added to that he saith that none of them remains for the Fire dryes the water and the fire also goeth out and so he concluded and prayed Judgment for the King and the Informer and it was adjourned Michaelmass 1611. 9. Jacobi in the Common Bench. IN Dower against Infant which makes default upon the grand Cape returned and agreed by all the Justices that Judgment shall be given upon the Default for the Infant shall not have his age and so it was adjudge upon a Writ of Error Charnock against Currey Administrator of Allen. IN debt upon an Obligation against the Defendant as Administrator as above he pleads Judgment had against him in an action of debt and over that hath not to satisfie to which the Plaintiff replies that this Judgment was for penalty and the condition was for a lesser sum and that the Plaintiff in the first action had accepted his due debt and had promised to acknowledg satisfaction of the Judgement at the request of the Defendant and at his charges and the Administrator which was the Defendant did not make request upon fraud and Covin to avoid the Plaintiffs action Upon which the Defendant hath demurred and so confesseth the matter of the Plea But Foster seemed that the Plaintiff ought to aver that the Plaintiff in the first action hath offered to acknowledg satisfaction and that otherwise he should be put to his action upon the Case but Coke and Warberton intended that the Replication is very good without such averment for it shall be intended that the Plaintif will perform his promise But further this Demurrer which was only for part was also for another part an Issue joyned for the other part which was to be tryed by the Country and which shall be tryed of the Issue or of the Demurrer was the question and it was agreed by them all that the Issue or Demurrer shall be first at the discretion of the Court see 11 H. 4. 5. 38. Ed. 3. Commission is granted to the Councel in Wales of which the President Vice-president or Cheife Justice to be one And the question was if they might make a Deputy and it was agreed that a delegate power could not be delegated but they might make an Officer to take an accompt in any such act Note that a Caveat was entred with a Bishop that he should not admit any without giving notice that the admission this notwithstanding is good but if he admit one which hath no right he is a disturber but otherwise the Caveat doth nothing but only to make the Bishop carefull what person he admits Foster Justice seemed that if the Ordinary now after the statute of
of Norfolke and Marshall and their Authority and Jurisdiction was absolute and their Judgements not reversable unlesse by Parliament and this appeares by the Statute of 5. Ed. 3. chap. 2. that they might hold Plea of things which did not concerne them of the household and also the words of the Statute of Articuli super chartas chap. 3. 28. Ed. 1. provides that the Marshalsey shall not hold Plea of free hold of covenant nor of any other contract made between the Kings people but only of Trespasse made within the Kings house or within the Verge and of such Contracts and Covenants which one of the honse made with another of the house and within the house and in no other place where Trespasse is Limited to the Kings house or within the Virge but no restraint that the parties shall be of the Kings House or otherwise it shall not be intended which shall be only those which are of the Kings House insomuch that the Trespasse is limited to be made within the Virge also he sayd it was a statute made 30 Ed. 1. which provides that if any causes arise amongst the Citizens of London only that this shall be tryed amongst the Citizens but if it be between them of the House it shall be tryed by them of the House by which it appears that they may hold plea between Citizens of London where none of the parties are of the Kings House also the statute of 6 Ed. 3. chapter 2. provides that in Inquests they shall be there taken by men of the Country adjoyning and not men of the Kings Houshold if it be not betwixt men of the Kings Houshold if it be not for Contracts Covenants and Trespasses made by men of the Kings Houshold of one part and that the same House which referrs to the statute of Articuli super chartas before cited and this expounds and so the Statute of 10 Ed. 3. chapter 2. provides that in Inquests they are to be taken in the Marshalsey that the same inquests shall be taken of men the Country thereabouts and not by People of the Kings House if it be not of Covenants Contracts or Trespasses made by people of the same House according to the Statute made in time of the Grand Father of the said now King and according to that the use hath been that is if none of the parties of were the Kings house then the tryal had been by the men of the country adjoyning And if one of the parties be of the house and another not then the tryall is by party Juries and if both the parâ—ies be of the house then all the Jury hath used to be of the house and if the Cause be between Citizens of London then the tryall hath used to be by Citizens of London and in the Book of Entries the same plea was pleaded in false Imprisonment 9 10. and the Register fol. 1 1. A. in action upon escape in Trespasse and to the Books of 7 H. 6. 30. 10 H. 6. Long 5 Ed. 4 19 Ed. 4. 21 Ed. 4. He saith that none of these Books are in action of Trespasse but one onely and that is mistaken in the principall point and so may be mistaken in one by case And the Booke of 10 H. 6. 30. is directly in the point but Brooke in abridgement of that saith that the practise and usage of the Court was otherwise But it may be objected that this is Indebitatus assumpsiâ— which is in nature of an action of debt and founded upon contract he said that Fitzherbert in his Natura Brevium said that there are two sorts of Trespasses that is General and upon the Case and Trespasse is the Genus and the other are the Species and that the action is founded upon breach of promise which is the Trespasse as for not making of a thing which he hath promised to doe and it is Majesteale breve and not breve formatuâ— and so is an action of Trover and Conversion or Assumpsit are Writs of Trespasse but admit that no yet action of false Imprisonment doth not lye for hee ought not to dispute the authority of the Court for the duty of his Office is only to be obedient and diligent for otherwise he should be judged of the Judg And who by the appointment of the Judge doth any thing doth not seem to do it deceitfully because it is of necessity he should obey and 14 H. 8. 16. a Justice of Peace awarded a Warrant to arrest a man for suspition of Felony where his Warrant was void and yet the party to whom it was directed justifies the making of the Arrest by force of that And 12. H. 7. 14. Capias was awarded to the Sheriff without original yet it was a sufficient Warrant to the Sheriffe and 22 Assis 64. Court awarded a Warrant where they had no Jurisdiction and yet it was a sufficient Warrant for him to whom it was directed And so in Mansells case if the Sheriffe execute an habere facias sesinam awarded upon a void Judgement this is a sufficient Warrant for him So in this case allowing that the Court hath no Jurisdiction yet the Plaintiff cannot be retained by this action but is put to his Writ of Error or to his action upon the Statute and so he concluded and prayed Judgment for the Defendant Hutton Serjeant for the Plaintiff argued to the contrary and hee intended that Judgment should be given for the Plaintiff for the matter and also for the Parties and that the Judgement and all other proceedings in the Marshalsey were meerly void and he denyed that they had originally such absolute jurisdiction as Fleta pretended for originally that was only for the preservation of the peace as it appears by the stile of the Court and also by the diversities of the Courts and that Criminall causes which require expedition are there only tryable and that civill causes are incroached of later times and it was necessary to be restrained and reformed by Parliament And it appears by the Statute of Articuli super Chartas that they have encroached to hold plea for free-hold and for that the Court which is mentioned in Fleta cannot be otherwise intended then the Kings Bench which then followed the Kings Court And also that they have not incroached only upon matters as to hold plea for Free-holds but also to persons and place where Contracts and Trespasses were made and this was the cause of the making of the said Statute And to this action of Trespasse for indebitatus assumpsit there begun he intended that it is for another thing of which they could not hold plea and it might be criminall for Civill is that which begun by contract and it is part of the commutative Justice for which is recompence given by one party to another and is not founded upon the Contract but is translated to an action of Trespass which manner of Trespass is not within the Statute and so he intended that
H. 6. 14. b. Also he conceived that the Feoffment in consideration of marriage naturall love to his Son and that the Wife of the Sonne shall be Indowed and that the Son should redemise that to his Father for forty yeares if he so long lived and that the Father should pay the Rent to the Lord these he intended to be good considerations and for that should be within the said Proviso of the Statute of 13. Eliz. otherwise if it had been to defraud Creditors But if it had been to such intent that is to defraud Creditors this shall not be extended to other intent that is to defraud the Lord of his Harriot And in the 28. of Eliz. it was adjudged in the Kings Bench if a man make a Feoffment in Fee to the use of himselfe for life remainder to his Son in tayl with divers Remainders over with power of Revocation and after bargaines and sells to a stranger upon condition and after performes the Condition that yet the first conveiance remaines fraudulent as it was at the time of the making of it But this is only as to the purchasor and not as to any other And in Goodhers Case 3. Coke 60. a. In debt against Heire which pleads nothing by discent day of the Writ purchased the other joynes Issue and gives in Evidence fraudulent conveiance and upon speciall Verdict adjudged that it was very good See also 4. Coke 4. b. c. Vernâ—ns Case the Collusion to have Dower and Joynture also And so he concluded that Judgement should be given for the Plaintiff Warburton Justice agreed that the fraud shall not be intended if it be not found no more then if a man grant an Annuity to another Quam diu se bene gesserit in Annuity for that he need not to averr that he hath behaved himselfe well for this shall be intended if the contrary be not shewed of the other party So here insomuch that it is not found to be fraudulent it shall be intended to be Bona fide And he agreed that if it had been fraudulent at the first If the Son had made a Feoffment over in the life of the Father as it is agreed in Andrew Woodcocks Case 33 H. 6. 14. that then the fraud is determined So here when the Son hath made a Lease to his Father this determines the fraud if any be and so he concluded that Judgment should be given for the Plaintiff Wynch Justice agreed insomuch that it is expresse consideration found by the Verdict and for that other consideration shall not be intended and also that it shall not be intended that the Conveyance was made to defraud or to deceive the Lord of such a Peccadell as Harriot is which is of small consequence but if it be a fraud within the Statute of 27 Eliz. apparent that is if it containe power of revocation which is declared to be apparent fraud by the Statute the Court may take notice of that without any averrment And he saith That in the 2. and 3. Eliz. Dyer Wainsfords Case 193. a. and 9 Eliz. Dyer 267 268. there is no averrment of fraud but expresse Issue joyned upon the Fraud and for that he need not any other averrment And so he concluded also that judgement should be given for the Plaintiffe and so it was Ruled accordingly if the Defendant did not shew other matter to the contrary at such a day which was not done Trinity 10. Jacobi 1612. In the Common Bench. Strobridge against Fortescue and Barret IN a Replevin the case was this A man seised of Lands in Fee devises Rent out of it with clause of Distress and dies his Son and Heire enters and dyes the Rent is behind the Son of the Son dyes and his Son enters and makes a Feoffment to the Plaintiff and the Devisee of the Rent releases all Actions Debts and Demands to the Feoffor and after distraynes the Beasts of the Feoffee for the Rent behinde before the Feoffment and it seemes the Release is not good insomuch that the Devisee had no cause of Action at the time of the Release made against him to whom the Release is made nor Demand against him otherwise if the Release had been made to the Feoffee for he was subject to the distress and this is a demand Trinity 10. Jacobi 1612 In the Common Bench. Case of Cinque Ports NOTE that Coke said that it hath been adjudged by three Judges against one in a Case of Cinque Ports that the Cinque Ports cannot prescribe to take the Body of a Freeman in Withernam as they use for another for this is against the Statute of Magna Charta Quod nullus liber homo Imprisonetâ—r nisi per Legate Judicium and also against the liberty of a Subject but they more inclined that they might take the Goods of one in Withernam when another is arrested and them retain and this seemes the more reasonable Custome and Prescription The Case was Tenant for life the Remainder for life with warranty the first Tenant for life was impleaded and he vouches him in Reversion but he first prays in aid of him in Remainder and if this aid prayer shall be granted this was the question And it seemes by Nicholls Serjeant that it shall not be granted see 11 H. 4. 63. Where it is agreed that if a man makes a Lease for life Remainder for life Remainder in fee and the first Tenant for life hath ayd of him in remainder for life and he in Fee joyntly and 44 Edw. 3. 20. in Trespasse against a Miller which takes Toll where he ought to grind Toll-free the Defendant saith that J. had the Mill for life and that he is his Deputy the reversion to W. in Fee and prays ayde of the Tenant for life and of the Tenant in reversion and had it of the Tenant for life and not of him in reversion and this for default of Privity as it seems to Brooke Ayde 30. Haughton conceived that it should be granted for Tenant for life notwithstanding that he may plead any Plea yet he doth not know what Plea to plead without him in reversion but by the ayde praying al the Estate shall be reduced into one and the warranty shall come and for that he conceived that the first Tenant for life shall have ayde of him in remainder for life Wynch Justice conceived that ayde shall not be granted against the first Tenant for life against him in remainder for life for he conceived that ayde is alwaies to be granted when the defects of him and his Estate which prays it are to be supplyed by him which is prayed that this is the reason that he may have ayde of his Wife and where there are many remainders the first Tenant may have ayde of them all otherwise where he is Tenant for life the remainder for liâ—e and the reversion expectant for the Tenant for life cannot supply his
which the Executors are to be charâ—ed meerly as Executors there the Writ shall be in the Detinet but when the thing grows due in part upon the contract of the Intestate and part by the Occupation of the Administrator as in our case there it shall be brought in the Debet and Detinet he cited a Case which was adjudged 26 El. in the Common bench between Scrogs the Lady Gresham where it was resolved that the Lady Gresham was made chargeable to the Debts of her Husband by act of Parliament and Action of Debt brought against her in the Debet and Detinet and debated if this were well brought and after Argument adjudged that it was well brought in the Debet and Detinet for though she was not chargeable for the Debts of her Husband upon his own Contract yet where an act of Parliament hath made her chargeable and a Debtor and for that reason the Action shall be brought against her in the Debet and Detinet and to the principal case he cited the Case of 11 H. 6. 7. Where it it said by Babington Newton that if a man be Lessee for years and is in arrears for his Rent and makes his Executors and dyes and the Executors enter into the Land and occupy in this case for the Arrerages due in time of the Testator Action shall be brought against them in the Detinet but for Rent due in their own occupation the action shal be brought in the Debet and Detinet for that it rises upon their own occupation and with this agrees 20 H. 6. 4. And he sayd that he would demand this case of the Councell of the other part that is a man hath a Lease for yeares as Administrator and Rent incurrs in his time and he makse his Executors and dyes and Administration of the Goods of the Intestate is committed over to another against whom shall the Action be brought for the Rent that is against the Executors of the first Administrator or against the second Administrator and it seems cleerly to him against the Executors of the first Administrator for their Testator had taken the profits which case proves that they shall not be charged meerly as Executors or Administrators but as takers of the profits c. And Occupiers of the land And this was his second reason of the nature of Profits insomuch that they were raised by the personall labour of the Executor or Admistrator and are their Goods as he sayd and they have them not meerly as Executors or Administrators and for that the Action is well brought as it is and he sayd that the Heir for Debt of the Father shall be charged in the Debet and Detinet and yet this was the contract of his Father but he is charged in respect that he hath the land and the occupation and profits of that so here insomuch that the Executors have the profit of the Tearm by the same reason they shall be charged in the Debet and Detinet and he resembled the case to a case put in Fitz. Na. Brâ—… In his Writ of Debt where a woman sole hath a lease for years and takes a Husband and the Rent incurrs and the wife dies the Husband shall be charged in the Debet and Detinet for this rent and the reason is because he hath taken the profits so here the Administrator hath taken the profits and is not answerable for the Profits unless they amount to more then the rent is And by the same reason the action is well brought against him as it is The third and last reason was for the Inconveniency and to that he sayd if this Action be brought in the Debet and Detinet there is no inconvenience but if it should be brought in the Detinet only then should the Administrator be charged but of the Goods of the dead where if he be not charged of his own proper Goods peradventure he shall not be so carefull to pay his rent but would stop the Lessor in his Action which should be trouble and vexation and so by this reason also he concluded the Action well brought in the Debet and Detinet and this was gaynsayd by Towse George Crooke and Harris of the other part and it seems to them that it should be in the Detinet only insomuch that the cause of this Action growes of the contract of the Testator and the Tearm is Assets in their hands and the Administrator hath the Tearm as Administrator and by the same reason the Occupation shall be as Administration and by consequence he shall be charged as Administrator and not otherwise and then the Action shall be brought against him in the Detinet only and that he shall be charged as Administrator they cited the Book of 14 H. 4. 28. Where it is sayd if a man hath a lease for years and makes his Executors and the rent incurrs in their time and action of Debt is brought against them and they make default he which first 〈◊〉 all come by distress shall answer according to the Statute of 9 Ed. 3. chapter 5. which Book proves directly as they say that they are charged as Executors and not otherwise and then it followes that the Action should be in the Detinet so it seems to them that in all Actions where they are named Executors or Administrators that the Action shall be brought against them in the Detinet only but in this action they ought to be named Executors or Administrators for he doth declare of a lease made to the Intestate and for that it seems it shall be brought in the Detinet only and this was the reason of Yelverton Justice which was of their opinion only against the other Justices and to that which was sayd that an Action shall be brought against the Heir in the Debet and Detinet for the Debt of his Ancestor they answered that this is now become the proper Debt of the Heir but it is not so in the case of an Executor or Administrator And it seems to Towse that if an Administrator hath a Lease for twenty yeares and makes a Lease for ten yeares rendring Rent and brings an Action for this Rent that the Action shall be brought in the Detinet only for that this is a new contract made by the Administrator and he hath gained new Reversion because it was derived out of the Lease for twenty yeares and so this shall be of the same nature and the Rent shall be Assets in his hands and in proofe of this he cited the book in 17. Ed. 3. 66. Where an Executor sold the Goods of the Testator and the Vendee made an Obligation to them for the money and the Executors brought an Action of Debt upon the Obligation and this was brought in the Detinet only And the exception was taken because it was duty of their owne contract and for that the Writ should be in the Debet and Detinet and yet the Writ
awarded good because it comes in Lieu of Goods which they had as Executors and shall be Assets in their hands as the Goods should have been and for that it is well brought in the Detinet only And they said that in the principall case it shall be mischeivous if the Action shall be brought in the Debet and Detinet for it may be the Rent reserved is of more worth then the Profits of the Land will amount unto and that the Executors or Administrators have no other Assets now shall be the Executor or Administrator be charged with his own proper Goods which shall be mischeivous and the case of 10. H. 7. 5. and 6. that is direct in the point was often times cited and all these three things which were of councell with the Defendant informed the Court that they were of Councell with Hargrave when the Judgement given in the Kings Bench was reversed for Error in this very point and for this cause because the Action was brought in the Debet and Detinet where it should be in the Detinet only And so they praied that the Judgement should be hindered But by the whole Court except Yelverton And so it was adjudged that the Action was well brought as it is and especially for the reasons given in Hargraves Case 5. Coke 31. And to that which hath been said by Yelverton Justice that in all cases where Executors are charged by the name of Executors or Administrators that there the Action shall be against them in the Detinet only Flemming cheife Justice answered that â—rue it is in all personall things where they are named as Executors Action shall be in the Detinet But as it is an Action of Debt for Rent reserved upon a Chattell reall and an Executor is as an Assignee in Law and so charged as privy in Estate and not meerely as Executor and if he have no more Assets then the Rent which he is to pay he may plead nothing in his hands against all the World and to that that hath been said that the Executor hath been charged of his own Goods If the profits be not more then the Rent or the Rent more then the profits to this he said that in this case where the Executor hath the Tearme and hath not any other Assets that they may wave this Tearme And in Action of Debt brought against him for the Rent may plead to the occupation and that recover The reason of the diversity between this case and the case of 28. H. 8. Dyer 14. is plain for in an Action of Debt against the Termor himselfe Non habuit nec occupavit is no Plea for there was a contract between them and for this privity of contract is the Lessee charged though he did not occupy But in the case of an Executor the privity of the contract is gone and so may be a difference But yet it seemes if he have Assets sufficient to pay the Rent he cannot wave it And to the case 14. H. 4. 28. that hath been cited that doth speake nothing how the Action should be brought And the Justices have seen the record of Hargraves case and the Reversall of that And they said the same error which was in Hargraves case is in this case and for that bring your Writ of Error in the Exchequer chamber if you will for we so adjudge And then it was moved that the Lord Rich was Tenant in Tayle of part of the reversion and Tenant in Fee-simple of the other part and so it seemes that he ought to have two Actions because he hath as two reversions But it was resolved by all the Court that if a man have a reversion of part in Fee-simple and of the other part in tayl and makes a Lease for yeares rendring a Rent he shall have but one Action both being in the hands of one But otherwise it had been if the reversion had been in severall hands they should not Joyne in Debt and for that Fenner put this case two Coparceners are of a reversion and they make partition now the Rent is apportioned and they shall sever in Debt But if one dies without Issue and the part discends to the other Parcener now he shall have but one Action of Debt againe and so it is if a man makes a Lease of two Acres rendring Rent and after grants the reversion of one Acre to J. S. and of the other Acre to J. N. now they shall sever in Debt for this Rent but if J. S. and J. N. Grant their reversions againe to the first Lessor he shall have but one Action of Debt and so the exception dissalowed by all the Court and the Judgement given for the Plaintiff according to the Verdict Yates and Rolles THe case was this J. S. covenants by Indenture with J. N. I. D. and A. B. to enter Bond to pay ten pound to J. N. and J. N. dies and his Administrator brings a Writ of covenant and the question was insomuch that this ten pound was to be paid to J. N. if his Administrator shall have Action of Covenant or if the Action shall survive to the other two and it was moved by Stephens that the Action shall be well brought by the Administrator for this shall be taken as a severall covenant and this now is in nature of a Debt and enures only to him which shall have it also the payment of the money which is the effect of the covenant shall be to him only Ergo the Damages for the not performing of it shall goe to him also and by consequence to his Administrator But it was adjudged insomuch that this was a joynt covenant that this shall survive to the others and not well brought by the Administrator So also resolved that insomuch that the words are that he would enter Bond and doth not say to whom that this shall be intended to the Covenantees and though that the Solvendo is but to one of them yet that is very good as an Obligation made to three Solvendum to one of them is good by Fenner and by Williams Obligation to two Solvendum ten pound to one and ten pound to another both ought to joyne in Debt upon this Obligation and Judgement for the Defendant Sammer and Force THe Case was this The Lord of a Copy-hold Mannor where Copy holders are for life grants Rent-charge out of all the Mannor one Copy-hold Escheats the Lord grants that againe by Copy the question was If the Grantee shall hold it charged or not and by the whole Court but Fenner he shall not hold it charged because he comes in above the Grant that is By the custome the same Law of Statutes Recognizances or Dowers but the 10. of Eliz. Dyer 270. by the whole Court that he shall hold it charged but this hath been denyed for Law in a Case in the Common Bench between Swaine and Becket which see Trinity 5. Jacobi But to Coke Justice it seemed that
in the Statute there is not any exception of the Universities nor of those which are Gradiats there and for that they shall be tryed by the sayd Act and the Statute of 14 H. 8. chapter 5 Only excepts those which are Gradiats of Oxford or Cambridge which have accomplished all things for the form without any Grace and if this Exception shall be intended to extend to others then all the University shall be excepted by that and such exception was too generall and over he sayd that the Plaintiff gave absurd and contemptous answer when he being cyted before them sayd that he would not be ruled nor directed by them being such grave and searned men for that that he hath practised against the Statute he was worthily punished and committed for it should be a vain Law if it did not provide punishment for them that offend against that and Bracton saith Nihil est habere Leges si non sit unâ—s qui potest Leges tueri and for this here are four grave and discreet men to defend and maintain the Law and to punish all Offenders against that according to the Statute by Imprisonment of their Bodies and other reasonable wayes and the sayd four men have the search as well of those men as of other Mediciners and the Statute of 1 Marie provides that the Keepers of Prisons shall receive all which committed by the sayd four grave and learned men and though there be great â—are committed to them by the sayd Statute and the sayd Letters Patents yet there is a greater trust reposed in them then this for we commit to them our lives when we receive Phisâ—ck of them and that not without cause for they are men of Gravity learning and Discretion and for that they have power to make Lawes which is the Office of the Parliament for those which are so learned may be trusted with any thing and for the better making of these they have power to assemble all the Commons of their Corporation and the King allows of that by his Letters Patents for it is made by a Congregation of Wise learned and discreet men and the Statute of 1 Marie inflicts punishment upon Contempts and not for any other offences and they held a Court and so may commit as every other Court may for a contempt of common right without act of Parliament or Information or other legall form of proceeding upon that as it appeares by 7 H. 6. for a contempt committed in a Leet the Steward committed the Offender to Prison and it was absurd to conceive that the Statute will allow of commitment without cause and it is a marvelous thing that when good Lawes shall be made for our health and Wealth also yet wee will so pinch upon them that wee will not be tryed by men of experience practise and Learning but by the University where a man may have his Degree by grace without merit and so for these reasons he concluded that this Action is not maintainable Coke cheife sayd that the Cause which was pleaded for that the Plaintiff was committed was for that that he had exercised Phisick within the City of London by the space of a Moneth and did not very fitly answer for which it was ordained by the Censors that he should pay a bundred shillings and that he should forbear his practise and that he did not forbear and then being warned of that and upon that being summoned to appear did not appear and for that it was ordayned that he should be arrested and that after he was summoned again and then he appeared and denyed to pay the hundred shillings and he sayd that he would practise for he was a Doctor of Cambridge and upon that it was ordained that he should be committed till he should be delivered by the Doctors of the Colledge and upon this was the Demurrer joyned and in pleading the Plaintiff sayd that he was a Doctor of Philosophy and Phisick upon which the Lord took occasion to remember a saying of Gallen that is Vbi Philosohpia desinit ibi medicina incipit and he sayd the only question of this case depends not upon the payment of the sayd hundred shillings but upon the words of the Letters patents of the King and the said two Statutes the words of which are Concessimus eidem presidenti c. Quod nemo in dicta Civitate aut per septem milliaria in circuita ejusdem exerceat dictam facultatem nisi ad hoc per dictum presidentem communitatem seu sucscires eorum qui pro tempore fuerunt admissus sit per ejusdem presidentis Collegij titeras sigillo suo commui sigillat as sub paena centum solidorum pro quolibet mense quo non admissus eandem facultatem exercuit dimidium inde nobis heredibus nostris dimidium dicto presidenti Collegio applicandum preteriá volumus concedimus pro nobis c. Quod per presidentem Collagium communitationem pro tempore epistentium eorum successores in perpetuum quatuor singulis annis per ipsos eligantur qui habeant supervisum scrutinium correctionem gubernationem omnium sigulorum dictae Civitatis medicorum utentium facultate medicinae in eadem Civitate ac aliorum medicorum fornisicorum quorumcunque facultatem illam medicinae aliquo modo frequentantium utensium infra eandem civitatem suburbia ejusdem sibi septem milliarea in circuitu ejusdem Civitatis ae putationem eorundem pro delectis suis in non bene exequendo faciendo utendo illa nec non supervisum scrutinium hujusmodi medicorum eorum receptionem per predictos medicos sive aliquem eorum hujusmodi legeis nostris pro eorum Infirmitatibus curandis suavandis dandis imponendum utendis quoties quando opus fuerit probo modo utilitate eorundem legiorum nostrorum Ita quod punitio hujusmodi medicorum utentium dicta facultate medicinae sic in premissis de linquentium per Fines Amerciamenta Imprisonamenta corporum suorum per alas vias rationabiles Congrâ—as exeqnantur as it appears in Rastal Phisitians 8018. 392. So that there are two distinct Clauses The first if any exercise the sayd Faculty by the space of a Moneth without admission by the President c. shall sorfeit a hundred shillings for every Moneth be that good or ill it is not materiall the time is here only materiall for if he exercise that for such a time he shall sorfeit as aforesayd The second clause is that the President c. Shall have Scrutinium Medicorum c. punitionem eorum pro dilictis suis in non bene faciendo utendo exequendâ— c. And for that the President and the Colledge may commit any delinquent to Prison And this he concluded upon the words of the Statute and he agreed with Walmesley that the King hath had extraordinary care of the health of
Subject may do it but till he be delivered by due course of Law for the commitment is not absolute but the cause of that is traversable and for that ought to justifie for speciall cause for if the Bishop returnes that he refuses a Clark for that he is Schismaticus Inveteratus this is not good but they ought to returne the particuler matter So that the Court may adjudge of that Though it be a matter of Divinity and out of their Science yet they by conference may be informed of it and so of physick And they cannot make any new Laws but such only which are for the better government of the old and also he said plainly that it appeares by the Statute of 1. Marie That the former Statutes shall not be taken by equity for by these the President and Commons have power to commit a Delinquent to Prison and this shall be intended if they shall be taken by equity that every Goaler ought to receive him which is so committed But when it is provided by 1. Marie specially that every Goaler shall receive such offenders That by this appeares that the former statute shall not be taken by equity And so he concluded that Judgement shall be entred for the Plaintiff which was done accordingly Trinity 7. Jacobi 1609. In the Common Bench. IN Debt upon escape brought by John Guy an Attorney of the Common Bench by an Attachment of priviledge against Sir George Reynell Kt. Deputy Marshall of the Prison of the Kings Bench the Defendant pleads his priviledge that is that he was Deputy Marshall and he ought not to be sued in other Court then in the Kings Bench according to the ancient Custome and Jurisdiction of the sayd Court upon which the Plaintiff demurred and upon argument of both parties it was adjudged that the Defendant should not have his Priviledge and the principall reason was for that the Plaintiff was an Attorney and ought to have his priviledge in the Common Bench and for that that this Court was first possessed of the Suit it shall not be stayed because of the Priviledge of the Defendant in another Court see 9 Ed. 4. 53. the last case where it is agreed that one of the Courts may send Supersedeas to another for there it is agreed that if an Accountant in the Exchequer be sued in the Common Bench he shall send Supersedeas to them to surcease and if he be sued in the Kings Bench these of the Exchequer will shew the Record that he is accountable for they cannot make Supersedeas to the King and the Plea is there held Coram Rege c. And he shall be dismissed for he may be sued in the Exchequer and also 10 Ed. 4. 4. b. It appears that if one which hath cause to have priviledge in the Common Bench sue an Attachment as our case is against a Clark of the Kings Bench such Writ shall not be allowed for that that the Common Bench was first seised of the Plea by their Plea and the Priviledge of the common Bench is as ancient as the Priviledge of the Kings Bench and one Court is as ancient as the other for every of them is before time of memory and it is by prescription Walmesley sayd that the Possessory shall be preferred Quia melior est conditio possidentis but he agreed that if the priviledge of one Court be not so ancient as the other then the most ancient shall be preferred and it was agreed that though there be Difference in respect of parties or though that the attendance of one be of more necessity then the other as it was objected in this Case that the Defendant ought to attend otherwise he shall loose his office to that it was answered and resolved that the cause of the Suit in the Common Bench was voluntary and the attendance of the Attorney or Clark more necessary then of the Defendant for hee may exercise his Office by a Deputy but a Clark or an Attorney cannot for their office is Opus Laboris But the Office of the Defendant is only Opus Labrum and he is to deal with Gyves and Irons and such like so that in this Case the Office and place of a Clark or Attorney is to be preferred before the Office of Marshall but admitting that one Inferiour Officer of the Common Bench which is to have his priviledge sue a superiour Officer of the Kings Bench which is also to have his Priviledge there this shall not make any difference And so was the opinion of all the Court and upon this Judgment was given that the Defendant should answer over Trinity 7. Jacobi 1609. in the Common Bench. IN Assise between William Parson alias Chester Plaintiff against Thomas Knight alias Rouge Cross tenant for the office of one of the Heraulds called Chester the Recognitors of the Assise had view at a Funerall at Westminster where the Officer ought to attend and it was objected that this was no good view for it was not in any place certain where the Recognitors may put the Demandant in Possession and the Disseisin was alledged to be at Westminster at the sayd Funerall and it seems that the view was good but admitting that it were not good It seemes to Coke cheif Justice that the Assise in this case well lies without view for the Office is universall as the Office of the Clark of the Market and an Assise for Tithes and the Office of the Tennis Court these are universall and not annexed to any place and for that an Assise wel lies for them without view but for an Office in the Common Bench view may well be made in the Court for the Court is alwaies held in a certain place but for an Office in the Kings Bench Quere Inquit Coke for this ought to follow the Court of the King by the Statute of Articuli Cleri Chapter 3. But Walmesley Justice that this Court cannot be sitting in Clouds but in some place or other and for that the view ought to be here made and then Coke sayd by the same reason the Office of the Herauld cannot be exercised in the Clouds but at Funeralls and by this the view ought to be made there also but the Opinion of all the Court was that the view was well made the Tenant in Assise also challenged diverse of the Recognitors for that they were of a former Jury upon the same question and this was agreed to be a principall cause of challenge but the Court would not allow of that without shewing the Record but allowed that to be a cause of challenge for favour and for that they were tryed by their Companions being sworn to speak the Truth and they were found to be indifferent and for Seisin for the Demandant in the Assise it was shewed that diverse Fees were due to the sayd Office as seven pound for every day that he attended upon the Kings person and for the Dubbing of
only an Action hanging but that which is cause of an Action And Judgement was given for the Plaintiff Michaelmasse 7. Jacobi 1609. In the common Bench. Flemming and Jales ACTIONE upon the Case for these words Thou hast stolen my Goods and I will have thy neck and maintainable Michaelmasse 7. Jacobi 1609. In the Common Bench. Ayres Case ACTION upon the Case for these words Ayer is an arrant Theife and hath stolen divers Apple Tres out of J. S. Garden and the Action well maintainable otherwise if he had said for he hath stolen c. for then it should not be Fellony to steale Trees and the word For shewes the reason why he called him Theife but the word And not Michaelmasse 7. Jacobi 1609. In the Common Bench. Bryan Chamberlaines Case against Goldsmith IN Debt upon an Obligation in which the under Sheriff was bound to the Sheriff for the performing of diverse Covenants contained in an Indenture made between them for the exercising of the said Office and the Plaintiff assigned breach of Cevenant by which the under Sheriff hath Covenanted that he would not execute any processe of execution without speciall warrant and assent of the Sheriff himselfe And the sole question was if this Covenant be a good and lawfull Covenant or not and it was argued by Hutton Serjeant for the Defendant that counted that the Sheriff is a publick Officer and may execute the office by himselfe yet when he hath made an under Sheriff he hath absolute authority also and it is not like to private authority but it is as if a man make an Executor provided that he shall not administer his debts above the value of forty pound And as if an Obligation with Condition that if an Obligor shall keep the Obligee without damages for four Beefes taken in Withernam that the Obligation shall be void or as if a man takes an Obligation of his Prentise with Condition that he shal not use his Trade within five yeares or within ten miles of such a place or as a Steward takes an Obligation of another man with Condition that he shall not sue in other place but where he is Steward or in the Common Bench this abridges the subject of his right and that the under Sheriff is a publick officer and mentioned in many Statutes though he shall not be an Attorney the same yeare in which he is under Sheriff And the Statute of 23. H. 8. restraines the under Sheriff that he shall not let any prisoners to Bayl but in the same manner as is contained in the Statute and further he said that all Obligations which have Impossible conditions are good and the Condition void but if the Condition be against Law the Obligation and Condition also is void And so he concluded that the under Sheriff is a publick Officer and that his office cannot be apportioned and that the Condition was performing of a Covenant which was against Law and void and so by consequence the Obligation void And so praied Judgement for the Defendant And for the Plaintiff is was argued by Dodridge Serjeant of the King that the Obligation is good and not void And he said that there are two Officers to all the Courts of the King which are to execute all Writs and that these Officers are Sheriff and Bishop and the Law doth not take any notice of under Sheriff or Warden of spirituallties for the Sheriff himselfe shall be amerced and not the under Sheriff which is but his substitute and it appeares by 3. H. 7. 2. b. That all Writs shall be directed to the Coroner and by him ought to be executed and 10. H. 4. 42. The Sheriff was merced for an Arrest made by a Bayliff of a franchise and and though that the Warden of Westminster Hall is an Officer to the Kings Courts to some purpose yet no Writ shall be directed to him as it appeares by 8 Ed. 4. 6. Also he agreed that the power of the Sheriff is double that is Ministeriall and Juditiall and some times he executes both together as in Redisseisin for of that he is Judge and also is Minister to the Court of the King and yet he is but one man for the Law doth not take any notice of under Sheriff nor intends that he shall supply any of these Offices for the under Sheriff is but servant to the Sheriff and to execute his Ministeriall power only and if it be so he may limit his Authority at his pleasure And if the Sheriff make a false returne or otherwise retard or make an uncertain returne he himselfe shall be punished by Action for the Law requires knowledge and intelligence of the Sheriff and the ancient Statutes made in the old time make mention of Sergeants at Mace and yet they make not any mention of under Sheriff which is but servant And he agreed that an Obligation taken with Condition against Law is void but he said that this is not against Law for the under Sheriff is a person of whom the Court doth not take any notice for he is but servant of the Sheriff and for this case and removeable at his pleasure and he may exercise his office by himselfe when he pleases and also he argued that the authority which may be totally countermanded may be countermanded in part and that the under Sheriff hath Derivata potestas quae semper talis est qualis committitur And by 35. H. 6. A man may make two Executors one for his Goods in Middlesex and the other to administer the Goods in London and this is good between them But not against a stranger for he ought to sue them both and he shall not be prejudiced by that and so 32 H 8. Brook Executor 155. A man made two Executors Proviso that one should not administer in the life of the other and 36 H. 8. 61. Feoffment and Letter of Attorney to make Livery to three or to any of them Livery cannot be made to two and also he said that there is no difference between power derived from a private person and power derived from the publick when this power comes to execution And admitting that the Sheriff may limit the authority of his under Sheriff for a time as it seemes that he may then of this it followes that he may allwaies abridge and apportion his authority And he agreed that when an under Sheriff is made diverse Statutes have been made to punish him if he offend But the Sheriff is not compellable to make under Sheriff And as to the Obligation that if an execution be delivered to the under Sheriff against one which is in his presence that he ought to execute it he saith that the Law is not so for the party ought to deliver the execution to the Sheriff himselfe for it doth not appeare that he hath an under Sheriff if he have received a Writ of discharge or not And also the Office of the Sheriff is of
Tenement and also prescribed for House-boot Plow-boot and Cart-boote and averred that he had nourished the growing of the Trees upon his sayd Copy-hold and that the sayd Messuage and buildings upon that were ruinous and the Trees growing upon that twenty Acres of Land were not sufficient for the repairing of it and so demanded Judgment if he should be debarred of his Action upon which these Defendants demurred in Law and it was adjudged by Coke Warburton and Foster Daniel being absent that the Action was wel maintainable against Walmesley who objected that if a Copy-holder may cut Trees as it was here pleaded at his pleasure without pleading first that his House was in decay and ruinous and that then he cut trees for the repaire of that that then he hath an Estate at wil according to the Custome and not at the Wil of the Lord and he sayd that he could not cut a tree and imploy that for Reparations twenty years But the cause of this cutting which is the Ruines ought to precede the cutting and he sayd that such Copy-holder hath no property in the Trees by such prescription no more then he which hath Common of Estovers or tenant at wil and if he cut a tree without special custome he shal be punished in trespasse as Littleton saith of Tenant at Wil and also he ought to plead how the House was ruinous and what place and what part of that was in decay and then that this so being in decay that he cut trees for the repaires of that and also that the Prescription to cut off the boughs Pro ligno combustibili is not wel pleaded for by that he may cut all the timber and others also and he who prescribes to hate Estovers ought to prescribe to have reasonable Estovers for Fuell and the averment that all the trees are not sufficient for reparations is surplusage and so hee conceived that the Action for these causes is not maintainable that is that it is not maintainable without speciall custome and that the custome as it is pleaded here is voyd but it was answered and resolved by Coke and the other Justices before cited that the Action was wel maintainable at the Common Law without such Custome and that the pleading of the custome was surplusage for it was agreed that the Copy-holder hath special property and the Lord a general property and it was sayd by Coke and Foster that the Lord may as wel subvert the Houses as cut down the Trees for without them the Copy-holder hath no means to repaire that and for that if the Lord cut the Trees the Copy-holder may take them for repaire of his house for the Copy-holder hath as large an Estate in the trees as in his Copy-hold Land and it was resolved that the Prescription was very wel pleaded insomuch that the Copy-holder pleads that as a custome and also that prescription Pro ligno combustibili is Good and this is an apt word by which he may claim it and that boote in any sense is maintainable and in some sense is Recompence or Reparation and it is House-boote Hedge-boote Fire-boote Plow-Boote c. Is in it self a Saxon word and the Lord Coke sayd that it was adjudged Michaelmas 25. and 26. Eliz. in Doylyes Case Where it was a custome that the Copy-holder might cut Merisme for to repaire that if the Lord carry it away that an Action of Trespass lies for the Tenant and Pasch 36. Eliz. Taylers Case A man was Tenant by copy of Court Role of wood and the soyle was excepted to the Lord and yet the Copy-holder maintained an Action of trespass against his Lord for cutting of wood And Trinity 4. Eliz. Stebbings Case Copy-holder prescribes to have the Loppings of all the trees growing upon the Copy-hold and the Lord cut a tree himselfe and the Copy-holder brought an action upon his case and adjudged that it lyeth wel and 9 H 4. Fitz. Waste 59. by Hull that Tenant by copy of Court Roll cannot make waste nor cut woods to fel but for his Benefit in repairing of his House and 2 Henr. 4. 12. a. It seemes that if a stranger cut a Tree the Lord may have an Action of trespass and the Copy-holder another and every one of these shal recover Damages according to his interest that is the Lord by his general property and the Copy-holder for his special property it appears by Clark and Pennyfathers case 4 Coke 23. b. That the Heir of the Copy-holder may have an Action of Trespass before admission by which it appears that the heir doth not take his Estate of the Lord but of his Father and also agree that if such an Heire dye before Admission the Heir may enter and take the profits and so it was adjudged that the Action of Trespass brought by the Copy-holder against his Lord was well maintainable Pasche 1610. 8. Jacobi In the Common Bench. Earle of Rutlands Case EARLE of Rutland Plaintiff in an Action of trespasse upon the Case against Spencer and Woodward Defendants the case was The last Queen Elizabeth Anno 42. Eliz. by her Letters Patents under the great seale of England granted to the Earle of Rutland the Office of the custody of the Porter-ship of the Castle of Nottingham Habendum to the sayd Earl to be executed by him or his Deputy during his natural Life and further the same Queen by the same Letters Patents granted to the sayd Earl the Office of Stewardship of diverse Mannors Habendum exercendum cum omnibus feodis vadis proficuijs eidem Officio pertinentibus to the sayd Earl from the time that he should be of ful age during his Life and further the sayd Queen granted to the sayd Earle the Office of Keeper-ship of divers Parks and forrests Habendum exercendum Officium predictum cum omnibus singulis suis proficuijs vadis feodis emolumentis quibuscunque eidem Officio pertinentibus aut ratione ejusdem percipiendis per se vel sufficiendem deputatum sunm c. And after in the sayd Patent it is recyted that the sayd Earl was of ful age An 40 Eliz. Vt informamu r mandamus quod omnes singuli Officiarij alij quicunque sint intendentes obedientes dicto Commiti deputatis suis in exerendo officium predictum and if this patent were good or not was the question And Hutton serjeant conceived that the Patent was good and that the sayd Earl may exercise the sayd Office of Stewardship for which this Action was brought by Deputy by force of the sayd Grant The first question which hee moved was if Steward of a Court may execise his Office by Deputy without speciall Grant of that Secondly if there be words within the Patent to enable him to execute that by Deputy Thirdly if upon this disturbance action upon the case Quare vi armis lies And to the first he conceived that the Patentee may exercise the
which was Obligamus nos vel quemlibet nostrum adjudged to be joint and severall at the Plaintiffs Election Action of Debt upon an Obligation to perform an award and the breach assigned for exhibiting a chancery Bill and adiudged no Breach Action of Debt for Tithes the Defendants time ended before the Coâ—n carried yet held good for the Plaintiff An Action will lie against a stranger that shall carry away the Corn before the Severance Dower may be brought against the Heir or Committee of the Ward Nota. He in Reversion received after Default made by Tenant for Life Return of the Sheriff adjudged insufficient being too general No Writ of Error lies untill the value be inquired upon Implication not good in a Surrender though it be in a Will Challenge because the Sheriff married the Daughter of the Lessors Wife and held no cause Nota. How to execute a Lease to try a Title the Land being in many mens hands Originall against four and count against 3. without a Simulcum and held naught The intent of a will must be certain and agreeable to Law Nota. How to execute a Lease by Letter of Atturney A Venire facias of the Parish adjudged good A mistake of the Cursitor in the Originall amended after Triall Nota. Though the Defendants Plea be naught yet the Plaintiff shall not recover because he shewed not any Title by his replication The question is upon the Statute of 32 H. 8 upon Feoffements made by Husbands during the coverture A verbal averment shall not overthrow a will The mistaking of the Town not hurtfull in a Will Property of Goods cannot be in obayance Difference between Prescription and Custome Copihold Land cannot be demised for three years without license or custome Record of Nisi prius amended by the Roll. Concord with satisfaction a good Plea in Eiectment Misconveyance of process what it is and helped by the Statute A feme covert cannot make a Letter of Atturney to deliver a Lease upon the Land When a demand shall be made to the person and when upon the Land A Lease made to three for their lives with a Covenant that the Land should remaine to the survivor of them for ninety yeares a good interest in the survivor A precise Verdict makes the Declaration good which otherwise is naught A demand of Rent to avoid a Lease upon a condition ought to be in the most open place After an Imparlance cannot plead in abatement 22 H. 6. 6. Foxlies Case 5 Rep. 111. The day of a Copihold of Court roll traversed and adjudged naught Houses in London passe by the delivery of a bargain and sale without inrolment An Ejectment will not lye de aquae cursu A Servant is a sufficient Ejector if he dwell with the pretended owner He that is a Purchaser of Copihold hath nothing in it nor can he surrender to another before admittance How an Abatement shall be traversed 1 E. 4. acr 1 E. 4. 9. acr The Bill amended after a Writ of Error brought and before the Record was removed Where the Prenomen destroyesthe quantity inthe declation Where words in a Declaration shall be voyd rather then the Declaration shal be voyd Nonage shall be tryed where it is alleadged and not where the Landlyes Essoin lies in a writ brought by Journes account although he was essoined upon the first Writ By Deed an implicationbe intended Nota. By the Name of a Mannour the Land in all the Villiages will pass Nota. Action brought by the Servant in his own name part of the Goods being his Masters Nota. Nota. The Record of Nisi prius amended upon motion The Process in Partition Error in Partition upon the first Judgement Defendant pleads he had brought a Writ for the same land and adjudged no plea. Process in a Quare Impedit Exception taken to the Venire and over-ruled Severall Quare impedits may be brought against severall men Admittance of a Resignation by fraud takes not away the Kings Title The state is determined by the death of Tenant in Tail A presentment by words good Nota. A subsequent debt to the Qu. related to award an assurance made upon good consideration The King hath lost his presentation by the Clerks death Defendant pleads another writ depending against the said Bishop good The Bishopsplea shall not prejudice the Incumbent Nota. Liberty to make Leases A devise for years in confidence the condition must goe to the estate and not to the use The scisin of rent reserved upon a Feosment within the time of limitation not to be traversed Nota. The beast of a stranger shall not be distreined for rent except they have been upon the land some time Demand not necessary in a Replevin for rent Nota. Exctâ—tion to the advowry too late after judgment entred Replevin not within the statute of 3. Iac. Iudgment arrested for that the plea was naught Nota. Nota. The Plea naught for want of amendment Amends made to the Bailiff not good If one inclose part it is an Extinguishment of Common for cause of vicinage Avowry amended after Entry by consent One of the Juroâ—s names mistaken in the Pannell of the Return and amended upon the Sheriffes Oath that he was the same man If two men distrain one Mare and both have Judgement no Return Court Baron in order to the Mannor Nota. Nota. A lease for life to three to hold successively naught The pannell of the Habeas Corpus amended upon Oath Nota. Atturnment not necessary for a Copy-holder Demand necessary for a Nomine pene Common Appurtenant and purchase part the Common is gone but not if Appendant Nota. Nota. Demand of Rent service upon the Land sufficient Nota. A Commoner may take the cattell of the Lord damage fesant Judgment arrested for not shewing in what place the Messuage did lye to which the Common did belong Common when the field and acres unsown the sowing of parcell shal not debar him of his common in the residue When a Deed is perfected and delivered as a Deed one agreement after pleaded in defeasance thereof and when the agreement is parcell of the Original contract it may be pleaded The Defendant in his Demurrer â—nswers not the whole Declaration and Judgement reversed The mistake of the day of an Act by way of Bar not prejudiciall A confession after an issue joyned refused A Constable cannot detaine one but for Felony Marshalsey hath no authority to hold plea in debt except both are of the Houshold Judgment before a wrong Officer erroneous The Court could not mitigate damages in trespass which was locall The Defendant justifies the imprisonment by the command of the Maior of London and naught Just of Peace cannot command his servant to arrest in his absence without warrant in writing If a servant be beaten dye the Mr. shall not have an action for the losse of his service Declaration shall not abate for false Latin A man cannot prescribe to be a Justice of the Peace If
use of my Master Mr. Serjeant Gaudy the sum of forty pounds to be paid at Mich. following the Plaintiffe brought an Action of Debt upon this Bill and declared verbatim as the Bill was and demanded the four pound to which Declaration the Defendant demurred and his pretence was as he supposed because he had received the money but as a servant to another use and so he ought not to be charged as a principall Debtor for the Bill is but a Testimony of the Receit as is the 1 H. 6. and 2 H. 6. in account for there an Indenture testifying the Receit which under Seal did not alter the nature of the first account but it was adjudged for the Plaintiff for although the first part of the Bill witnesse the Receit to be to anothers use yet in the last clause of the Bill for the payment of the money he doth not say to be repaid by his Master for then it would not charge him but the clause is generall to be repaid which of necessity ought to bind him that sealed for otherwise the party shall loose his Debt because he had no remedy against Serjeant Gaudy and because the Debt appears to be due it shall be intended to go onely in satisfaction of a due Debt which mark ALexander versus Lamb Mich. 6 Jacobi the Plaintiff brought an Action of Debt upon an Obligation of forty pounds against Lamb as Executor P. the Defendant pleads that P. in his life time was indebted to him in forty pounds due Debt and that the goods of the Testator to the value of ten pounds came to the Defendants hands which he retained towards satisfaction of his Debt and averred that no more goods beyond the goods to the value of ten pounds came to his hands to be administred the Plaintiffe replyed and shewed that the Defendant is Executor in his own wrong to P. and that he hath many other goods of P. to be administred at S. in the County of Norfolk and concludes hoc paratum est verificare c. the Defendant rejoyns and demands judgement if the Plaintiffe shall be admitted to say that the Defendant is Executor of his own wrong seeing by his Declaration he had affirmed him to be Executor of the Testament the Plaintiffe demurres in Law to this Plea and as to the matter in Law all the Court was for the Plaintiff for he may well reply that the Defendant is Executor of his own wrong notwithstanding the Declaration for there is no other form of declaring as is adjudged in Coults Case 5 Rep. fol 30. but the whole Court held the whole Plea to be discontinued for the Defendant having pleaded as to the Goods to the value of ten pounds which he retained in his hands for a Debt due to him and that he had no other Goods and concludes hoc paratum est definire which is not good for he ought to have said hoc petit quod inquiratur per patriam for there being a surplusage of the Goods denied by the Defendant and urged by the Plaintiff it ought to come in issue but could not by reason of the ill conclusion but in the same Term between West the Plaintiff and Lane Defendant West demanded four pounds Debt against Lane as Executor as above and all the rest of the Plea is as above and Judgement was given for the Plaintiff because the Defendant had confessed Goods to the value of ten pounds in his hands which was more then the Defendant demanded and therefore although by Judgement of Law an Executor of his own wrong cannot retain Goods to pay himself and although the other proceedings in the Plea are naught yet Judgement shall onely be given upon the confession of the Defendant and so it was entered with Mark GReen versus Eden Mich. 6 Jacobi The Plaintiff brought an Action of Debt upon an Obligation for a hundred pounds dated September the third 1 Jac. the Condition was that if the Defendant the fourth of September anno 20 Jacobi pay a hundred pounds to I. S. at such a place and also save the Plaintiff harmlesse from any suit which should be brought against the Plaintiff by reason of the Bond in which he was bound to J. S. as Surety for the Defendant then c. the Defendant pleaded that true it was that he by his Obligation bearing Date September the third 1 Jac. did become bound to the Plaintiff in two hundred pounds but further said that the said Obligation was not delivered as the Defendants deed untill the seventeenth of September in the second year of King James and then it was first delivered and further sayes that he had found the Plaintiff harmlesse c. to which plea the Plaintiffe demurres and adjudged for the plaintiff for the Bond mentioned in the Declaration is not answered for the plaintiffe indeed shows that the Defendant was obliged to him by his Obligation bearing date the same Day c. which is laid to be a perfect Bond the same day as the Plaintiff counts and then for the Defendant to come and say that it was first delivered the seventeenth of September 20 Jacobi which is a year after is no good Argument but naught without taking a traverse without that it was made the third of September 10 Jacobi Secondly as the Defendant hath pleaded he hath made part of the Condition idle and vain for by the Condition it appears that there is a Condition for the payment of a hundred pounds at a Day to come to wit the fourth of September in the second year and now the Defendant by his Plea hath made the Day of payment passed before he supposes the Bond to be delivered within a manner takes away the effect of the Plaintiffs suit and if the Condition had not stood upon two Branches but upon one onely and the Defendant will plead the Delivery after the Condition becomes impossible to be performed then is the Obligation become single for the whole two hundred pounds which mark by the whole Court BArret versus Fletcher Pasch 7 Jacobi The Plaintiff brought an Action of Debt upon an Obligation of five hundred pounds with a Condition to stand to the Award of J. S. and J. D. so that c. the Defendant pleads if the Arbitrator made no Award the Plaintiff replies and shews the Award made verbatim and concludes that they had made an Award and doth not assign any breach The Defendant rejoyns that the Award pleaded is not the Deed of the Arbitrators and Issue being joyned upon that there was a Verdict for the Plaintiff and Yelverton moved in arrest of Judgement because the Plaintiff in his replication had not assigned any breach of the Award and so had shewed no cause of Action for the replication is not for any Debt but is guided by the Condition and is for the performance of a collaterall thing to wit of an Award and although the Defendant had not answered any thing