one he would pay it where good where not this he may implead him presently Mich 12. Jac Kebles Case A man promiseth to pay so much in consideration of a Lease at Will and it was holden no good consideration for by the same breath that he creates it he may defeat it Pasch 8. Jac. Austins Case A man promise that in consideration he would forbear another he would pay it and no time was limited and therefore it was holden no good consideration Trin. 38. Eliz. Rot. 523. A man promise quod non implacitabit and avers quod non implacitavit and because of the uncertainty it was holden no valuable consideration Doderidge Justice If there be no consideration at the time or no cause of Action the forbearance afterwards will not make it actionable and he said that it had been adjudged in this Court that a consideration to forbear for a little time is not good but by some to forbear for a reasonable time is good But in the principall Case upon the hearing of the Declaration read it appeared that it was that he should never implead him upon the said obligation so that if the Plaintiff brings an Action upon the obligation the Defendant here may have an Action upon the Case against him Also it was non implacitabit and this shall be taken indefinitely quod nunquam implacitabit and therefore the Iudgement was affirmed for otherwise the Plaintiff shall both take advantage of this promise and of the bond also and here he hath in a manner forsaken the benefit of his bond and hath betaken himselfe to the benefit of this Assumpsit By Jones and Whitlock Iustices if A. be bound to me and I enter into bond to him that I will not sue this Obligation I cannot sue him upon the first Obligation without forfeiture of my bond and by Doderidge if an Obligation be forfeited and I say to the Obliger do not sue the Obligor or do not implead him an Action upon the case lies against me The same Term in the same Court. Arnold versus Dichton IN an Action upon the Case and Non-Assumpsit pleaded it was found for the Plaintiff and Noy mooved in arrest of Iudgement that there was no consideration to maintain this Action the Case being thus Arnold having married the Daughter of the Defendents Testator the Testator promised to give him 40 l. and meat â—nd drink for a year and a Featherbed and Bolster and afterwards the Testator in consideration that the Plaintiff would Assumpsit forbear to sue him all his life for it promised that he should have as good a portion at his death as any of his children and the Plaintiff declares that he gave to one Tho. P. one of his Sons 200 l. and that he left him at the time of his death but 30 l. but when he gave to Tho. P. the 200 l. appeares not peradventure it might be in his life time and this promise doth not extend to that which he had given before as if a man be bound to keep a Goale and that no prisoner shall escape this only extends to a future keeping and future escapes and not to other escapes which were before True it is that sometimes the Law will alter the sense as in the Case of 32. H. 6. where a man is bound that his Feoffees c. And at another day Doderidge said that the first promise was but an inducement to the second and the Defendant hath pleaded Non Assumpsit to the last promise and then comes the Plaintiff and shews that he gave to such a one 200 l. and doth not shew when this was given and this may be before the promise and therefore I conceive the Declaration is not good Jones agreed that the Declaration is not good for admit that in this case he had given to all his children but one great portions before the said promise and had given a small portion to one after the promise the Plaintiff now shall have but according to the said promise and it is alledged here that he gave to such a one 200 l. which may be before the promise and therefore the breach not well laid Whitlock contra and that the Plaintiff shall have according to the best gift in this case whether it were before or after the promise and that upon the intention of the promise for the intention is that the Plaintiff should have as good a marriage or portion with his Daughter as any other of his children should have But by Doderidge this construction cannot be made without offering violence to the words for then daret should be for dedisset and for any thing which appeareth he had a portion before and this was but a superaddition Jones put this case I am bound to enfeoff J. S. of so much Land as I will enfeoff J. D. this extends not to a Feoffment which I have made to J. D. before but only to a Feoffment which I shall make to him afterwards which was not denied by Whitlock and it was adjourned The same Term in the same Court. Barker versus Ringrose BArker brought an Action upon the Case against Ringrose and declared that whereas he was of good fame and exercised the Trade of a Wool-winder the Defendant spake these scandalous words of him that he was a Words Thou art a bankrupt Rogue Bankrupt Rogue and it was moved in arrest of Iudgement that those words were not actionable for the words themselves are not actionable but as they concern an Office or Trade c. and it appeareth by the Statute of 27. E. 3 that a Wool-winder is not any Trade but is but in the nature of a Porter so that the Plaintiff is not defamed in his function because he hath not any also it is not averred that he was a Wool-winder at the time of the words speaking Jones Justice If one saith of a Wool-winder that he is a false Wool-winder action upon the Case lieth and it was demanded by the Court A Wool-winder wâ—at he is what a Wool-winder was and it was answered that in the Countrey he is taken to be a Wool-winder that makes up the fleece and takes the dirt out of it and a Wool-winder in London opens the fleeces and makes them more curiously up and in London they belong to the Mayn of the staple Doderidge If one saith of a Sher-man that he is a Bankrupt Action lyes and so it hath been adjudged of a Shoo-maker and note that if one saith of any man who by his Trade may become a Bankrupt within the In what case to call a man Bankrupt is actionable Statutes that he is a Bankrupt an Action lies as of a Taylor Fuller c. And the Court seemed to incline that in this case being spoken of a Wool-winder in London the Action lies But Mich. 3. Car. the Case being moved again the Court was of opinion that the Action could not lye and would not give
that it was good enough for although it were a joynt command yet the parties commanding having severall titles it shall be taken as severall commands reddendo singula singulis and for the third it is good enough being in a Plea otherwise if it had been in a Writ But for the second Exception the bar is not good enough because incertain so that although upon other Exceptions moved by the Defendant the Replication of the Plaintiff was not good yet the Defendants Bar being ill the Plaintiff shall have Iudgement upon tâ—e Declaration And the Plaintiff had Iudgement accordingly The same Term in the same Court Risley versus Hains IN an Action upon the Case upon an assumpsit the Plaintiffe declared upon the Sale of several parcells of Tobacco to wit for one parcell so much for another parcell so much and so forward and in the Conclusion he saith quae quidem separales summae in toto se attingunt to 55. l. which being computed is lesse then the pariculars and upon non assumpsit it was found for the Plaintiffe and now Andrewes moved in arrest of Judgement for that the particulars and the summing up of them differs and this being in a Declaration which ought to contain truth it is not good and so there appears to be no cause of action 35. H. 8. Dyer 55. And Grices Case in the very point Mich. 17. Jac. in this Court but by Jones and Whitlock Iustices onely present the Declaration is good enough for there is a particular promise for every parcell and the summing up of particulars is only surplusage and officiousness of the Clark therefore the Iudgement was affirmed And nota that Jones said obiter in this Case that upon a contract the Party to whom payment is to be made need not make request and afterwards it was agreed by the whole Court that it should be amended otherwise it had been more The same Term in the same Court A Great multitude of Welsh-men were Indited for the death of a man by an Inquisition taken before the Coroner in the County of Mountgomery in Wales and Littleton of Councel with the Welsh-men took some Exceptions to the Inquisition as 1. That the Coroner cannot take any Inquest unlesse it be super visum corporis and to this purpose he cited Britton 6. Ric. 2. Coron 107. 21. E. 4. 70. 2. Ric. 3. 2. This also is the reason that if a man drown himselfe and cannot be found the Coroner cannot enquire of the death of this man but for the King to have a forfeiture of his Goods an Inquisition ought to be taken before the Iustices of Peace as it was resolved in this Court Trin. 13. Jac. upon which the first exception was that the Inquisition was taken at D. in the time of King James super visum corporis in D. in the time of this King and for this he cited two presidents out of Cookes Booke of Eâ—tryes Another Exception was because the Inquisition was per Sacramentum probor legal hominum Com. predict whereas by the Stat. of 4. E. 1. this inquest ought to be by men of the four Towns next adjoyning and this ought to appear in the Inditement also Hill 10. Jac. Rot. 3. Co. lib. Intr. 354. And day was given to the Attorney General to maintain this Inquisition But afterwards Pasch 3. Car. the Inditement was quashed especially for the first exception The same Term in the same Court King versus Merrick In an Action upon the Case for these words I charge you King with Felony and you Constable inuendo Thomas Legat to apprehend him And a verdict for the Plaintiff It was moved in arrest of Iudgement by Bacon that the words are not actionable The first words are not because they are not an expresse affirmation and for this he cited Mich. 11. Jac. in this Court Powel and Bauds case where an action was brought for these words I have arrested Powel of Felony for stealing sheep of mine and adjudged not actionable Also the Plaintiff did not shew in his Declaration what kinde of felony this was and it may be such a felony for which an Action will not lie for there are divers kinds of felony and a Mayhem is one kind as appears in 40. Ass Pl. 4. 6. H. 7. 1 and in this case it shall be taken in mitiori sensu and it shall not be intended such a felony for which he may be hanged If one charge another with felony because he hath committed a Mayhem it is cleer that an action will not lye And the other words I charge you Constable to apprehend him are not actionable and the words are onely spoken to the Plaintiff Also the words are layd to be spoken in London and it appears that the Constable was of a Town in Norfolk who cannot apprehend any one in London Earle for the Plaintiff It hath been argued that the words are not actionable because felony is a generall word and contains in it selfe a mayhem also But I conceive that in this case felony shall be taken according to the general and common acceptation which is such a Felony for which a man may loose his life and for this he cited Co. lib. 4. 15. b. Yeomans charged Hext for my ground in Allerton Hext seeks my life and if I could find Iohn Silver I do not doubt but within two dayes to arrest him upon suspition of Felony and it was adjudged that for the last words the Action lies because he shall be imprisoned for suspition of felony and felony is there taken according to the common acceptation of the word It hath been objected that there is no expresse affirmation of the Felony but I conceive that there is 39. Eliz. Action was brought for these words I will call him in question for poysoning my Aunt and adjudged that it lyes and Mich. 37. and 38. Eliz. Woodrofe and Vaughans case for these words I did not know Mr. Woodrofe was your Brother I will prove him perjured or else I will bear his charges and adjudged actionable And Hill 44. Eliz. Rot. 351. This man inuendo Iohn Latham hath cut my Wives purse and his Father knowing of it received it of him and the Money and Rings theein and therefore I charge him of flat Felony and resolved that for these words did cut my Wife's purse no action lies for the cutting of ones purse only is not felony unlesse it be taken from the person and to receive one is not Felony but resolved that the last words were actionoble and then it was agreed that if one say that I. S. did see such a one that had committed felony and did suffer him to slip away I charge him of Felony these words are not actionable and Mich. 20. Jac. in this Court that these words beare witnesse I arrest him of felony are actionable and therefore he prayeâ— judgement for the Plaintiff Doderidge Iustice the words are not actionable And Hexts case comes not to this
in themselves do purport And if it had been good for the matter yet it is not good for the form for want of a Traverse for without the Traverse the plea is not answered in that case which is laid to the charge of the Defendant But Popham and Clench held strongly to the contrary and that this Bar is good in matter and as the case is cannot be otherwise and that the form also is good enough and yet the two Affirmatives cannot make a good Issue but in case of two Affirmatives a Traverse shall not be but where the Affiâ—matives do not agree in one As if the Defendant in Trespasse Intitles himself by the Feoffment of a stranger and the Plaintiff reply and maintain that the same stranger did enfeoff him this cannot make a good Issue without a Traverse of the Feoffment alledged to be made to the Defendant But in the same case if the Plaintiff saith that true it is that the stranger enfeoffed the Defend an t but this was to the use of the Plaintiff and his Heirs there no Traverse shall be on the Plaintiffs part because as to the matter of the Feoffment it agrees with the Defendant in which case it shall not take any Traverse but there the Traverse shall come on the Defendants part to maintain the Feoffment to his own use Absque hoc that the Feoffment was to the use of the Plaintiff for now that which the Defendant saith albeit it be in the Affirmative yet it is a Traverse to that which the Plaintiff hath alledged and therfore he needs not traverse the plea And so a diversity where the Affirmative is to traverse that which is alledged by the other party and where not for in one case the conclusion shall be with a Traverse and in the other not Then in this case when the Plaintiff alledged that the Defendant spake these words which prima facie shall be intended to be spoken in this sence as the Plaintiff hath alledged although no Innuendo had been in the case for if it shall not be so intended without the Innuendo the Innuendo will not help it yet when the Defendant hath declared the circumstance wherupon these words were spoken and then the speaking of them therupon now he hath confessed the very words themselves to be spoken but upon the circumstance discovered to be in another sence then prima facie they are to be taken and therfore he shall not take a Traverse for he acknowledgeth the very words but not the intendment which the very Law prima facie presumes upon the words and therfore shall not take a Traverse for this intendment of Law being answered by matter expresly in the plea shall never be traversed as in the case put of a Feoffment prima facie it shal be intended to be to the use of the Feoffee yet when the other party maintains that this Feoffment was to his use he shall not take a Traverse to that which the Law intends and presumes And if a man upon speech had with a Hunter saith That he hath murthered all the Hares within 7. miles of his house and another answer and say he is a Murtherer indeed wherupon the Hunter brings an Action upon the Case against him for saying that the Plaintiff was a murtherer the Action will well lye Yet when the other shall discover the communication wherupon the words were spoken this shall be a good Bar without a Traverse yet if it be true that there were no such communication between the parties as is mentioned in the Bar the Plaintiff then hath good cause of Action and therfâ—re he may well say De injuria sua propria absque tali causa and this being sound it shall be against the Defendant So upon speech of a Butcher who had killed a 1000. Oxen in a year and one hearing it will say that he is a notable Murtherer this upon the matter disclosed is not actionable And it shall be mischievous by a Traverse or by pleading generally not guilty to put such speciall matter in the mouth of Lay-people to give their Verdict upon being ignorant and therfore easie to be miscarried in theâ—r judgment and therfore it shall be the rather admitted by speciall pleading to be put to the judgment of the barred Judges then into the mouths of lay Gents And here when Fletcher speaking of the order to be taken by the Councell upon the Petition said that the Earl would obey their order to which the Defendant answered that he knew not what the Earl would do the said Fletcher said therupon that he was a Subject and what was the intent of Fletcher in saying so no other but that because he was a Subject therfore he ought to obey and if it be so to be understood as of necessity it ought or else they were not spoken by Fletcher to any purpose which cannot be intended then shall the words following being spoken therupon by the Defendant be taken to be spoken in answer to the matter of the Speeches spoken by the said Fletcher and this is that he was sorry and it was his grief that he must be so subject as to be bound therby to obey their Order as if a man saith to another that he was sorry that he was so subject that he must obey a Iudgment against him in the Queens Court this is no cause of Action for this tends but to his subjection to the Law or good order or the like which do not give cause of Action As if one saith of another that he is of the Temple who alwaies rebell against the Governours of the said house then saith another to him Will you then say and maintain that he is a Rebell yes sayes one of the other I will do so If an Action be brought for the last words the Action will lye but if the other discover the circumstances of the Speech in the Bar wherupon it was spoken the Action will not lye And this the Defendant may well do without traversing that which is alledged because he acknowledgeth it although in another sense then the Law Prima Facie imports upon the Declaration And if in Speech between two one of them saith of a stranger that he hath treacherously betrayed his Friend in revealing all his secrets and councell wherupon the other then saith that he hath done as a Traytor therin and the other saith to him again he is a Traytor and he answering to it saith true he is a Traytor Now if the stranger brings an Action of the Case against him for saying of these last words Prima Facie it imports good cause of Action without any Innuendo as that he intended therby that he was a Traytor to the Queen because the words in common intendment have such a sence yet upon the matter disclosed by way of Bar with the circumstances how they were spoken the Plaintiff shall be barred if he cannot maintain that they were spoken without such a cause which
naturall Jones Iustice There is great difference between a way and a water-course as to this purpose for admit that this water-course after that it had been in the Curtilage of the Plaintiff goes further to the Curtilage of another shall not that other have the benefit of this water-course notwithstanding the unity of possession I think cleerly that he shall Doderidge my opinion is that the water-course is not extinguished by the unity of possession But some conceived that he had declared his opinion in terror to the Defendant And afterwards the same Term Barksedale for the Plaintiff said that he had agreed the case before and therfore would now only indeavour to answer some exceptions which had been taken to the Declaration 1. Exception hath been that no prescription or custom is made for this water-course but only that Currere solebat consuevit But I conceive thaâ— the Declaration is good notwithstanding this because the Plaintiff here doth not claim an interest in the Water-course but in the Land in which c. and therfore it is good and this appeareth by 12 E. 4. 9. the Prior of Lantonies case in a prescription in a Market overt generally and the reason there was because he was a stranger as in our case he is and this pleading appeareth also to be good by Cooks Book of Entries 18. Smiths case which was entred 9 Jac. Rot. 366. in this Court 2. Exception was because it is not said that it was Antiqua Rectoria 3. Exception because it doth not appear that he was a spiritual man to whom the Demise of the Rectory was made 4. Because it is not said that the Water-course Ad predict Rectoriam pertinet 5. Because the Water-course is alledged to be for his customary Tenants of the said Rectory and this is not good as appeareth by 21 Eliz. Dyer 363. Prescription Pro quolibet customar Tenente is not good but I conceive that this case is not our case for here is Customarius tenens Rectoriae and there it is agreed that Quilibet customarius tenens Maner had been good And the plea in Bar hath salved these objections and therfore he prayed judgment for the Plaintiff Jeremy for the Defendant And first for the matter in Law it seemed to him that by the unity of possession the Water-course is extinguished and the Water-course may well be compared to the case of the way for as a way is a passage for men over the land so water hath passage upon the land and a way is extinguished by unity as appeareth by 21 E. 3. 2. 11 H. 4 5. 21 Ass and Davies Reports 5. and in 4 Jac. Jordan and case it was the better opinion that a way was extinguished by unity of possession true it is that there Popham chief Iustice put the difference where the way is of necessity and where not for where the way is of necessity there it shall not be extinguished This case hath been compared to the case of a Warren in 35 H. 6. but I conceive that the cases are not a like because a Warren is a meer liberty 8 H. 7. 5. A man may have a Warren in his own Land and Co. lib. 7. Buts case by a Feoffment of Land a Warren doth not passe but this Water-course hath its originall out of the Land and this case cannot be compared to an ancient Water-course running to a Mill for notwithstanding the unity it shall passe with the Mill for otherwise it shall not be Molendinum aquatinum so that the water there is parcell of the thing and so of necessity ought to passe with the thing but here it doth not appear that it is a Water-course of necessity and for any thing that appeareth it may be filled with another Water-course Also I conceive that the Declaration is not good 1. Because neither prescription nor custom is laid for the Watercourse and it appeareth in Co. Book of Entries Holcome and Evans case and the old Book of Entries 616 617. Mich. 1. Car. Rot. 107. Turner and Dennies case in this Court in trespasse for breaking his Close c. the Defendant justified for a way c. and that he was possessed for years and for him and his Occupiers had a way over the Land the Plaintiff demurred and resolved that the prescription is not good 2. The Declaration is insufficient being an action upno the case for the stopping of a Water-course and it is not Vi armis nor Contra pacem Co. lib. 9. 50. the Earl of Shrewsburies case when there are two causes of an action upon the case the one Causa causans the other Causa causata causa causans may be alledged Vi armis for this is not the immediate cause of the action but Causa causata F. N. B. 86. H. and 92. E. in the end of the Writ of action upon the case shall be Contra pacem 3. Also he hath prescribed for the Tenants of the Rectory which is not possible for no Lay-man could be Tenant of a Rectory or of Tithes before the Statute of H. 8. and therfore I pray Iudgment for the Defendant Whitlock chief Iustice conceived that the declaration was good the bar is naught both for the form matter the question here is of Aqua profluens and I conceive that there needs no prescription or custome in this case for water hath its naturall course and as is observed by Brudnell in 12 H. 8. Natura sua descendit it may be called Usu captio or Vsage and he conceived that the action upon the case very well lies in this case like to the case where a man bath a house and windows in it and another erect a new house and stop the light then I may have an action upon the case but true it is that I shall not only count for the losse of the aire but also I ought to prescribe that time out of mind light have entred by these windows c. see 7 E. 3. If there be a School-master in a Town and another erect a new School in the same Town an action upon the case doth not lye against him because Schools are for the publike benefit and every private man may have a School in his house And for the exception that a Lay man cannot be possessed of a Rectory I conceive that the Declaration is good notwithstanding for a Lay-man may have a Rectory by Demise And for the Plea in bar it is not good for the form because that Searles entred and enfeoffed Pigot and it is not said that he entred and Expulit and if a man enter and make a Feoffment the owner being upon the Land the Feoffment is void and therfore an actuall Ouster ought to be shown And for the matter in Law he conceived that the Bar was not good for by the unity of possession the water-course is not extinguished and yet I agree the cases of a way and common upon the differences of Rights which are
there which to their Office of Sheriff appertaineth or any waies to intermeddle with it except only for the Sheriff of the County of Glocester to hold their County-Courts as is aforesaid And that the Major Aldermen of the said Town for the time being their Successors having power and authority to enquire here determine all things which Iustices of P. or Iustices assigned to hear determine Trespasses and Misdemeanors within the County of Glocest before this time have made or exercised And that the Iustices of Peace of him his Heirs or Successors within the said County of Glocester should not intermeddle with the things or causes which belong to the Iustices of Peace within the said Town c. And upon this Charter divers things were moved by Sir William Periam Knight now chief Baron of the Exchequer before his going into the Circuit 1. Whether by the saving of the Charter they have sufficient power reserved to them to fit within the Town being now exempted from the said Town of Glocester to enquire there of the Felonies done in the said County of Glocester And so for the Assises and Nisi prius taken there of things made in the County of Glocester Then if the the Sheriffs may execute their Warrants made there at the time of the Assises or Goal-delivery notwithstanding the exemption given to them by the Patent And it was agreed by all the Justices that the saving in the Patent is sufficient for the Iustices of Assise and Goal-delivery to sit there for the things which happen within the County of Glocester for as the King may by his Letters Patents make a County and exempt this from any other County so may he in the making of it save and except to him and his Successors such part of the Iurisdiction or priviledge which the other County from which it is exempted had in it before As in divers places of the Realm the Goal of a Town which is a County of it self or which is a place priviledged from the County is the Goal of the County and the place where the Assises or Goal-delivery is holden is within the County of the Town and yet serve also for the County at large as in the Sessions Hall at Newgate which serves as well for the County of Middlesex as for London and yet it stands in London but by usage it hath alwaies been so and nothing can be well prescribed unto by usage which cannot have a lawfull beginning by Award or Grant and this by the division of London from Middlesex at the beginning might be so And so the Goal of Bury c. And although that the words are saving to him and his Heirs yet by the word Heirs it shall be taken for a perpetual saving which shall go to his Successors which is the Queen and the rather because it is a saving for Iustice to be done to the Subjects which shall be taken as largely as it can be And albeit the expresse saving for the Sheriff is but for to hold his turn yet in as much as the authority of the Iustices of Assise and Goal-delivery in holding their Sessions as before was accustomed is saved it is Included in it that all which appertain to the execution of this Service is also saved or otherwise the saving shall be to little purpose And therfore that the Sheriff or other Minister made by the authority of these Courts is well made there and warranted by the Charter And wee ought the rather to make such exposition of the Charter because it hath been alwaies after the Charter so put in execution by all the Iustices of Assise But it seems that by this Commision for the County a thing which happens in the Town cannot be determined albeit it be Felony commited in the Hall during the Sessions but by a Commission for the Towne it may 7. SIr Francis Englefield Knight being seised in his Demesne as of Fee of Vide this case reported in Coke lib. 7. 12 13. the Mannor of Englefield in the County of Berks and of divers other Lands in the first year of Queen Eliz. departed out of the Realm by licence of the Queen for a time and remained out of the Realm in the parts beyond the Seas above the time of his licence wherby the Queen by her Warrant under her privy Seal required him to return upon which he was warned but did not come wherupon the Queen seised his Land for his contempt After vvhich the Statute of Fugatives was made 13. year of the Queen upon which by Commissions found upon this Statute all his Lands were newly seised and afterwards 17 Eliz. by Indenture made between him and Francis Englefield his Nephew and sealed by the said Sir Francis at Rome the said Sir Francis covenanted with his said Nephew upon consideration of advancement of his Nephew and other good considerations to raise an use that he and his Heirs and all others seised of the said Mannor c. shall hereafter stand seised of them to the use of himself for term of his life without impeachment of Wast and afterwards to the use of his Nephew and of the Heirs Males of his body and for default of such Issue to the use of the right Heirs and Assigns of the said Francis the Nephew for ever with a Proviso that if the said Sir Francis shall have any Issue Male of his body that then all the said Vses and Limitations shall be void and with a Proviso further that if the said Sir Francis by himself or any other shall at any time during his life deliver or tender to his said Nephew a King of Gold to the intent to make the said Vses and Limitations void that then the said Vses and Limitations shall be void and that therafter the said Mannors c. shall be as before Afterwards the said Francis was attainted of Treason supposed to be committed by him 18 Eliz. A Le umures in partibus transmarinis le attainder fuit primerment utlagary apres per act de Par. 28 Eliz. by which the forfeiture of the Condition was given to the Queen and at the same Parliament it was also enacted that all and every person or persons which had or claimed to have any Estate of Inheritance Lease or Rent then not entred of Record or certified into the Court of Exchequer of in to or out of any Mannors Lands c. by or under any Grant Assurance or Conveyance whatsoever had or made at any time after the beginning of the Raign of her Majesty by any persons attainted of any Treasons mentioned in the said Act after the 8. day of February 18 Eliz. within two years next ensuing the last day of the Session of the said Parliament shall openly shew in the said Court of Exchequer or cause to be openly shewn there the same his or their Grant Conveyance or Assusance and there in the Term time in open Court the same shall offer
l. at such a day without saying how or in what manner these Debts accrued or when because the Action is nor meerly founded upon the Debt but upon the promise and the Debts are but inducements to it But if it were to recover the Debts themselves in an Action of Debt there ought to be made a certainty therof to wit when and how it comes And further here in as much as the Assumpsit is found for the Plaintiff it shall be implyed that the consideration was duly performed for without due proof of the consideration the Plaintiff hath failed of his assumption and therfore also it shall be now taken that the Testator hath such a term of years in reversion to which the term for years in possession may be surrendred for he said that he who hath ten years in possession may well surrender to him who hath more years as twenty in reversion for the lesser may surrender to the greater term To all which Popham and Fennor agreed And Popham said further although it shall be taken most strongly against Hughes to wit that Robotham had a lesser term in the reversion then Hughes had in the possession yet the surrender shall be good for in Law it is greater and more beneficiall for him to have a lesser term to be a term in possession then to have it to be in reversion â—â—nd by him if a Lessee for twenty years make a Lease for ten years then he wâ—ich makes the Lease for ten years hath a reversion upon these ten years so that if Rent be reserved upon it he may distrain for it and have Fealty of the Termor And if he grant the Reversion over for ten years with attornment of the Termor in possession the Grantee hath the Reversion and shall have the Rent for the time and yet the Remainder for years remains alwaies to the Grantor and therfore before the Reversion granted ever the Termor for ten years in possession might have surrendred to his Lessor and therby the said Lessor shall have so many of the said years which were then to come of his former term of twenty years And after the Reversion granted he which hath the ten years may surrender to the Grantee of ten years in Reversion and there he shall have so many years in possession which were to come of his Reversion Quod nota bene And if he had had a lesser term in the Reversiâ—n then the Lessâ—r himself had in the Possession it shall go to the benefit of the first Termor for twenty years who was his Grantor for the Term in possession is quite gone and drowned in the Reversion to the benefit of those who have the Râ—version therupon having regard to their Estate in the Reversion and not otherwise to all which Fennor agreed wherupon Gawdy gave the rule that Iudgment shall be entred for the Plaintiff But Popham said that if the consideration for the surrender had not been sufficiently alledged that the Plaintiff shâ—uld not be helped by the other consideration of 100. marks given by Thornel for if such an Assumption as this is be founded upon two more considerations and such which by possibility may be performed then the party hath failed of his Suit As if a man in consideration of 5 s. paid and of other 5 s. to be paid at a day to come assume to do a thing or to pay money if the one 5 s. be not paid or if it be not averred that the other 5 s. was paid at the day limited for the payment of it the party hath failed in his assumption in the one case and the declaration is insufficient in the other case for he hath made a departure from his consideration But if one of the considerations be impossible or against Law there the other considerations which are possible or stand with the Law suffice if they he well alledged And he said that the Executor shall be charged with the contract of the Testator by common course of the Court which stands upon reason for if an Action of Debt upon a bare contract be brought against an Executor if he do not demur upon it but plead to the Paâ—s that he owes him nothing and it is found against him he shall be theâ— by charged of the Goods of the dead and the cause why he may be helped by demurring upon the declaration in that case is becâ—use the Testator might have waged his Law in that case of debt which the Executor could not do of other contracts and therfore shall not be charged with it by such an act if he will help himself by demurrer but in â—he assumption of his Testator he could not have waged his Law and it is founded upon the death of the Testator to wit his debt with which the Executor by a mean may be charged as before and therfore the assumption in such a câ—se maintâ—inable against the Executor But if the Testator upon good consideration assume to make assurance of Land or to do any other such collaterall thing which doth not sound in a duty of a thing payable there the Executor shâ—ll never be charged with such an assumption to render recompence for it And to this agreed all the Iustices â—â— the common Bench and Barons of the Exchequer And such an assuâ—â—â—ion hath not been allowed in the Kings Bench but of late time and thâ—â— but 〈…〉 or two cases But in the other case it hath been common and of 〈…〉 and therfore now too late to be drawn in question and if it should â—â— it may be maintained with good reason in this case of a duty of â—â—ing payable in as much as the Testator cannot wage his Law in the Action but in the other case there is no reason nor course of the Court to maintaiâ— it But the Iudges in the Exchequer Chamber reversed all these Iudments in both cases 2. Nota that this Term was adjourned to Octob. Trin. and because the Writ was that Adjournment shall be made in Octob. Trin. of all cases untill Tres Trinitat the Adjournment was made in every of the Courts of Kings Bench Common Bench and the Exchequer the very first day of Octob. Trin. then it was holden by the Iustices that the Adjournment ought not to have been made untill the sitting of the Court the fourth day from Octabis And because that the Writs were that at the said Tres Tr. the Term shall be holden therafter as if no Adjournment had been the Iustices held that they ought to sit the first day of the said Tres Trin. and so from thence every day untill the end of the Term and for all causes as if no adjournment had been and so they did accordingly saving by assent some of the Iustices did not come thither by reason of their far distance from London at the end of the Term upon the last Adjournment But they held that if it had not been for the especiall words in the Writ which were
to Charles late Lord Sturton Father to the said Iohn Lord Sturton and the said Charles Lord Sturton disseised the said Lady Sturton and levied a Fine of the said Land to Cottington and his Heirs with Proclamations according to the Statute and warranted it against him and his Heirs And the said Lord Charles dyed before the Proclamations past and the Warranty descended upon the said John Lord Sturton after which and before the Proclamations past the said Lady Sturton entred upon the said Cottington after which the said Lady died and after her death and all the Proclamations past the said John Lord Sturton as Heir in Tail entred and made the Lease to the said Okes upon whom Cottington the Defendant entred as under the right of the said Cottington the Conusee And I perceiving the Court strongly to incline upon the matter of Warranty that it shall bar the entry of the Heir and make a discontinuance against him according to the inference which is taken by Littleton in his Chapter of Discontinuance because the truth was and so acknowledged to the Court although it were omitted in the Verdict that the said Charles Lord Sturton was attained of Felony and Murther and so the blood corrupted between the said Charles and John Lord Sturton wherby in a new Action the Garranty had not hurt the Title of the said Lord John I then moved the Court upon the other point of the Fine with Proclamations and the Court also agreed in this point if the Warranty had not been that yet the Fine with Proclamations shall bar the said John Lord Sturton notwithstanding the entry made by the Lady Sturton were before the Proclamations past because that notwithstanding his regresse made the Reversion remains in Cottington not defeated by his regresse in respect of the Statute whch makes that the Fine remains effectuall against the Heir in Tail if nothing be done by him to undo it before the Proclamations past as by claim regresse and the like but the Act of a stranger shall not help him wherby Iudgment being therupon given against the said Okes the said John Lord Sturton stood satisfied and the Cottingtons enjoy the Land to this day wheras if this opinion of the Court had not been on a new Action the said Sir John might have been relieved against the Warranty And Gaudy said that this was a very good Case for the point upon the Statute in this case Earl of Shrewsbury versus Sir Thomas Stanhop 8. GIlbert Earl of Shrewsbury brought a Scandalum Magnatum against Gilbert Earle of Shrewsbury against Sir Thomas Stanhop in a Scandalum Magnatum Sir Thomas Stanhop Knight and it was upon the Statute Tam pro Domina Regina quam pro seipso c. For that communication was had between the said Sir Thomas and one Francis Fletcher of divers things touching the said Earl the said Francis at such a day and place said to the said Thomas My Lord the said Earl meaning is a Subject innuendo that the said Earl was a Subject of the now Queen the said Sir Thomas then and there said of the said Earl these slanderous words to wit he intending the said Earl is sorry for that meaning that the said Earl was sorry that he was then a Subject to our said Soveraign Lady the Queen that is his grief meaning that it was grief to the said Earl that the said Earl was Subjâ—ct to the Queen to the damage of the said Earl of 20000 l. To which the said Sir Thomas Stanhop said that a question was formerly moved between the said Earl and the Defendant touching the subversion and drawing away of certain Weares heretofore erected by the said Sir Thomas at Shelâ—ord in the said County of Nott. where the Action was brought to oust the River of Trent there that for the subversion therof a Petition was exhibited to the privy Councell of the Queen before the speaking of the said words by certain Inhabitants of the County of Lincoln and divers other places not known to the Defendant with the privity allowance and knowledge of the said Earl which Petition at the time of the speaking of the said words depended before the said Councell not determined wherupon at the day and place comprised in the Declaration there was Communication between the said Defendant and the said Francis Fletcher concerning their purpose to have the said Wears subverted and touching the said Petition upon which the said Francis said to the said Defendant the matter meaning the Petition aforesaid hanging undetermined before the Councell aforesaid is to be heard before the privy Councel meaning the aforesaid Councell of the Queen and what their Honours meaning the Councell aforesaid determine my Lord the aforesaid Earl meaning will willingly obey To which the said Francis then there answered saying My Lord the aforesaid Earl meaning is a Subject upon which the said Defendant they then having speech as well of the said Petition as of the order therupon to be taken by the said Councell answered saying the words comprised in the Declaration meaning that he was sorry and grieved that he was subject to the order to be made upon the Petition aforesaid by the said Councell and averred that this was the same speech upon which the Action was grounded upon which it was demurred in Law and for cause shewn according to the Statute it was alledged that the bar was defective because it is not alledged at what place nor by whom nor against whom the Petition was exhibited and also because that by the Bar the matter of the Declaration is not confessed avoided or traversed and also that the Bar was insufficient And it seemed to Fennor that the matter of the Bar had been sufficient if it had been well pleaded but the Plaintiff alledgeth the words to be spoken in one sence in the Affirmative and the Defendant shews matter also in the Affirmative which proves the words to be spoken in another sence then the Declaration imporrs and two Affirmatives can never make a good Issue and therfore the Defendant ought to have taken a traverse to that which is comprised in the Declaration and for want of this traverse the plea in Bar is not good Gawdy said that the Bar is not sufficient neither in matter nor form not in matter because that wheras Fletcher said that the said Earl was a Subject this can have no other sence but that he was a Subject to the Queen in his Allegiance and her Soveraignty and so much is drawn out of the course of their former speech and therfore the answer which the Defendant made to it refers to his subjection of alleagiance and not to the matter of obedience which he owed to the order of the said Councell and if it cannot have any other sence in good understanding he cannot help himself now by an Innuendo which is in it selfe according to common intendment contrary to that which the nature of the words
of the Bailment But Haughton being contra therfore Curia advisare vult The same Term in the same Court The Earl of Shrewsburies Case VPon a Verdict a rule was given to have Iudgment and this was upon the Thursday and upon Sâ—â—uâ—day after thâ— party that was Plaintiff died and it was moved to have a Writ of Error because it was said that the party died before Iudgment in as much as of course aâ—ter the Verdict and the â—ule given for Iudgment there are four daies given to speak in Arrest In the diâ—cretion of the chief â—ustice to allow a Writ of Error The entry of a Iudgment how it shall relate of Iudgment â—â—o so as Yelverton Attorney-generall said he died before Iudgment absolutely given and he moved the Court to have a Supersedeas And it was agreed that it wâ—s in the discretion of the chief Iustice Ex officio to allow a Writ of Error but because it was a cause of great consequence he took the advice of the Court and it was agreed that a Writ of Error was a Supersedeas in it self yet it is good to have a Supersedeas also and if the Writ of Error had been allowed the Court could not deny the party a Supersedeas But because the Writ of Error was not allowed and also because no Error appeared to the Court for where Iudgment is entred this shall relate to the time of the rule given It was resolved that no Writ of Error should be allowed nor any Supersedeas granted The same Term in the same Court. Rones Case IN an Ejectione firmae brought by the Lessee of Rone Incumbent of the Church of Dallinghoe in Com. Suff. It was found by speciall Verdict that the King was the true Patron and that Wingfeild entred a Caveat in vita Incumbentis he then lying in Extremis scilicet Caveat Episcopus ne quis admittatur c. Nisi Convocatus the said Wingfeild the Incumbent dies Naunton a stranger presents one Morgan who is admitted and instituted afterwards the said Wingfeild presents one Glover who is instituted and inducted and afterwards the said Rone procure a presentation from the King who was instituted and inducted and then it came in question in the Spirituall Court who had the best right and there sentence was given that the first institution was Irrita vacua inanis by reason of the Caveat then the Church being full of the second Incumbent the King was put out of possession and so his presentment void But it was adjudged and resolved by all the Court for Rone for 1. It was resolved that this Caveat was void because it was in the life of the Incumbent 2. The Church upon the Institution of Morgan was full against all but the King and so agreed many times in the Books and then the presentation of Glover was void by reason of the super-institution and therfore no obstacle in the way to hinder the presentation of Rone and therfore Rone had good right And if the second institution be void the sentence cannot make it good for the Spirituall Court ought to take notice of the Common Law which saith that Ecclesia est plena consulta upon the institution and the person hath therby Curam animarum And as Doderidge Iustice said he hath by it Officium but Beneficium comes by the Induction And although by the Spirituall Law the institution may be disannulled by sentence yet as Linwood saith Aliter est in Anglia who is an Author very well approved of amongst the Civilians And Doderidge put a case out of Doctor and Studient the second Book If a man devise a summ of money to be paid to I. S. when he cometh to full age and afterwards he sues for it in the Spirituall Court they ought to take notice of the time of full age as it is used by the Common Law to wit 21. and not of the time of full age as it is used amongst them to wit 25. So in this case at the Bar for when these two Laws met together the Common Law ought to be preferred And when the Parson hath institution the Arch-deacon ought to give him Induction And see Dyer 293. Bedingfeilds case cited by Haughton to accord with this case The same Term in the same Court Taylors Case JOhn Taylor a Citizen and Alderman of Glocester was put out of his place by the Common Counsel of the City for some misdemeanor and he sued out a Writ of Restitution and for that the cause of his displacing was not sufficient Writ of Restitution for an Aldermans place his Writ was allowed by reason wherof the other Alderman who was elected in his place was to be removed for the number of Aldermen was full But Hazard another Alderman to the end that the new elect who now was Major should not be displaced was contented to surrender his place in consideration of 10 l. a year granted to him by the Corporation for term of his life with which the Wife of Hazard was not content and therfore he would have left his agreement And therupon the question was whether he might surrender or not And it was said by Coventree Sollicitor that he cannot and he cited Middlecots case an Alderman of B. where the opinion of the Court was 13 Eliz. that he cannot surrender Doderidge perhaps they would not except his surrender Mountague said that Alderman Martin of London gave up his Aldermans place and without question any man in such a case may surrender or leave his place to which the Court agreed and therfore it was ordered that Hazard shall have his 10 l. a year and that he shall stand to his first agreement The same Term in the same Court. May and Samuels Case AN action of Debt was brought upon an Obligation the Condition wherof was to stand to the Arbitrement of John S. concerning all matters between them to the time of the submission who arbitrates that the one shall pay 20 s. and that the other shall make a generall release to him of all matters from the beginning of the world to the time of the arbitrement Arbitrement Haughton Iustice this is an arbitrement but of one part and therfore void but if it had been only that the one shall pay 20 s. it may be good for it shall be intended that the other by reasonable construction shall be discharged or acquitted to which Crook and Doderidge Iustices agreed But by Mountague chief Iustice it ought to be specified yet they all agreed and so it was adjudged that this was a void arbitrement for it was of the one part only to wit that he shall pay 20 s. for the other part for the release to the time of the arbitrement was not within the submission so if the arbitrement had been that the one shall make a release or shall be discharged or acquitted without speaking of the other this being on the one part only is a void arbitrement vide
case who agreed that the wife shall not have it The same Term in the same Court. Dennis versus Sir Arthur Mannaring and others IN the great case between Gabriel Dennis Plaintiff in Trespasse against Sir Arthur Mannaring and Brimblecomb and others the Verdict was found for the Defendants And now it was moved in Arrest of Iudgment for the Plaintiff because no Bail was entred for Brimblecomb one of the Defendants A Verdict is given in B â— before any bail entred not good for every Defendant is supposed in Custodia Marescalli and in this case the Venire facias is awarded to try the Issue between the Plaintiff and Defendants where one of the Defendants is no party in Court And Serjeant More put the case of the Lord Chandoys and Sculler and other Defendants where the Iudgment in such a case was resolved to be erroneous Mountague we ought Discernere per legem quid sit justum and here Brimblecomb being no party in Court no Verdict could be given Doderidge I have seen in this Court where upon a Writ of Error brought in such a case we have compelled him to put in his Bail because he should not take advantage of his own wrong and folly But because that here no fraud appeared to be in the Plaintiff he shall not be bound to stand to the Verdict Haughton agreed but Crook seemed to the contrary But it was agreed that if Brimblecomb had appeared at the Suit of any other the same Term it had been sufficient And these Books were cited to be in the point 32 H. 6. 2. 8 E. 4. 5. 21 H. 6. 10. The same Term in the same Court Hide versus Whistler WIlliam Hide made a Lease for years of certain Lands to Whistler excepting Exception of all Wood under-wood Coppices and Hedgerows to the Lessor all his Wood and under-wood Coppices and Hedgerows and in a Replevin the question was whether the Soil shall passe ther by for the Lessee put his Beasts into a Coppice and the Lessor distrained them wherupon c. And the words of the exception were further standing growing and being in and upon the Premisses And the Lessee covenanted to make Fences but if the Lessor made new Coppices that the Lessee should net make Fences about them And it was said that a Coppice signifies a parcell of Land fenced for the safegard of young Trees And it was said for A Coppice what it is the Plaintiff that Premisses are Pre dimissa and by these words growing and being in the Premisses it shall be intended that the Soil did not passe for it is pre-demised But it was resolved that the Soil it self was excepted by the exception of the Wood and Coppice 14 H. 8. 1. The Bishop of Londons case Co. lib. 5. Ives case and lib. 11. Lyfords case And by the reserving of a Coppice the Soil it self is reserved for by Mountague that which is reserved is not demised and so the Distresse well taken Crook agreed and he said the difference was good between Wood and Trees for by the excepting of Wood the Soil it self is excepted otherwise of Trees Haughton agreed that the Soil it self is excepted in this case and so it was adjudged The same Term in the same Court. Talbot versus Sir Walter Lacen IN a Writ of Covenant brought by Margaret Talbot against Sir Walter Lacen upon a Lease made by the Plaintiff to the Defendant of a Park Covenant to leave the Premistes in repatations at the end of the Term. c. for five years if she should live so long in which the Lessee covenants for him his Executors and Assigns to keep the Premisses in good Reparations and so to leave them at the end of the Term and also to deliver to the Plaintiff upon notice given four Bucks and four Does in season during the life of the Plaintiff in every of the said years And after the expiration of the aforesaid term of five years she brought a Writ of Covenant and assigned the breach because that in the end of the term he committed Wast and because that after the end of the term the Defendant refused to deliver the Deer And albeit the words of the delivery of the Deer are during the life of the Plaintiff yet they are also every of the aforesaid years and therforeit was resolved that she shall not have them during her life in this case And for the other point it was objected that in Fine termini was incertain for it may extend after the term but Ad finem termini had been sufficient Old book of Entries 169. for when he covenants that at the end of the term he would leave the Premisses in reparations and Ad finem termini he did wast this ought of necessity to be intended a breach of the Covenant and therfore it was adjudged that the action of Covenant well lies Mich 16. Jac. In the Kings Bench. Havergall and Hares Case IN this Case which see before fol. 1. b. four points were observed 1. Whether Fisher the Assignee of the Rent were such a person who Before fol. 1. b shall take benefit of the entry 2. When 10 l. is only in arrear whether the Rent of 20 l. shall be said in arrear 3. Whether these advantages which were first granted with the Rent may be granted over 4. When the Vse shall rise whether upon the first Indenture of the grant of the Rent or afterwards For the case was that the Grantee of the Rent of 20 l. covenanted by the same Indenture that if the said rent of 20 l. were in arrear for the space of twenty daies after any day of payment that the Grantee shall distrain and if there be not sufficient distresse upon the Land or if there be a Rescous Replevin or Pound-breach that then it shall be lawfull for the Grantee and his Heirs to enter into the same Land and to retain it untill he be satisfied And the said Rent was granted 9 Jac. it was arrear 11 Jac. the Fine for the better assurance of the Rent was levied 12 Jac. and 13 Jac. the Distresse was taken There were four Causes which give an entry and upon the Distresse and Replevin brought the Assignee enters As to the three first points it was resolved by the whole Court 1. That Fisher was such an Assignee who shall take benefit of the Entry 2. When 10 l. is only arrear the Rent of 20 l. shall be said arrear wherupon there shall be a Title of Entry 3. That these advantages granted with the Rent may be granted over And as to the fourth point it was holden by Mountague and Crook that the Vse riseth upon the first Indenture and not upon the entry after the Replevin brought although the words are that then it shall be lawfull for the Grantee and his Heirs to enter wherby the use is only awaked as it is in the principall point in Shelleys case and although a Fine is afterwards
Prohibition and had it and Noy moved for a Consultation 1. Because that a Prohibition and an Attachment upon it are but one Suit for the contempt of the party in bringing his Suit in another Court and translating this from the Kings Court and when it is once tried for the Defendant the same thing shall not be tried again And as to the Statute of 50 E 3. 4. upon the mistake wherof the mistake is raised he confessed that the Printed Books and also in the Extract of the Parliament one Roll remaining in the Tower is the same Iudge but the Parliament Roll it self and the Petition is Liceatque Iudici Ecclesiastico sive diocess eidem an hujusmodi and the answer to the Petition is one Consultation granted sufficeth in this case And the Parliament Roll it self was brought into the Court and viewed but he said that if it were as it is in the printed Book and Extract the same Iudge shall not be intended the same personall Iudge but the same Iudge of Conusance of the same Iurisdiction or cause for otherwise if another Commissary be made as the Bishop may when he will his Successor may be newly prohibited and also one thing may be infinitely tried for in many places the Suit begins in the Arch-deacons Court and from him an Appeal may be brought to the Bishop The same Term in the Kings Bench. Pack versus Methold in a Writ of Error IN Mich. Term 22 Jac. Methold brought an action upon the case in the Common Pleas against Pack and declared that in consideration that the Plaintiff would pay to Playford 52 l. 14 s. to the use of the said Pack such a day c. Pack promised to deliver to him his Bond in which he was bound to him in the said summ when he should be therunto requested And shews that he had paid c. and the Defendant did not deliver to him the Bond albeit the same to do he was afterwards often times requested and upon non assumpsit pleaded it was found for the Plaintiff and now it was moved in Arrest of Iudgment because the request is not laid specially nor the day nor place therof expressed But the Court to wit Hobart chief Iustice Hutton and Harvey gave Iudgment for the Plaintiff and yet they agreed that if he had demurred upon the Declaration it had not been good and also that if it had been generall Licet saepius requisit it had not been good in as much as it is parcell of the promise and therfore ought to be said substantially viz. That it was after the promise and payment of the 52 l. but the time is supplied by these words Postea and there is no defect but in the place and Postea implies that it was after the promise and payment And Hobart said that all the points of the Declaration which have matter and substance are good only there wants the place where the request was made which by the Issue is moved and the request is here well notified to the Court and the defect of the place is now helped by the Statute Hutton said that if the promise had been to pay so much upon request at Easter there the day ought to have been shewn and Postea had not been sufficient but here the Postea refers only to a thing wherby it is certain and he said that upon this Issue such a request shall be given in evidence Harvey said that the request being here laid as it is the Court may well give Iudgment And it seemed to Hobart that such a request cannot be given in evidence where the Issue is upon an Assumpsit And Iudgment was given for the Plaintiff and afterwards a Writ of Error Hill 1. Car. Where in an action upon the case there ought to be a speciall request and where not was brought in the Kings Bench and the opinion of the Court was strongly that the Plaintiff ought to have alledged the request specially and ceriainly in time and place because it is traversable and parcell of the Assumpsit and not to be done but upon request Jones Iustice remembred divers Presidents in the point and further day was given to bring in Presidents of either side and two Presidents were produced according to the opinion of this Court Scil. Pasch 30 Eliz. Rot. 464. in 1. Court Old and Estgreens case Trin 16 Jac. Rot. 268. Wales case But in Debt Licet saepius requisit is sufficient for it is not materiall nor traversable for the bringing of the action of Debt which is a Precipe is a sufficient demand in it self and afterwards at another day the Court continued of the same opinion and therfore the Plaintiff in the first action brought a new action Quod nota for albeit the Defendant had pleaded non assumpsit and Issue was joyned upon it yet this did not amend the evill laying of the request according to the Presidents abovesaid Pasch 2 Car. In the Kings Bench in t Hill 1 Car. Rot. 135. Constable versus Clobery IN an action of Covenant the question was upon the Traverse the Plaintiff declared upon the Indenture of Covenant and the Covenant was that a Ship shall go with the next fair wind and that the Merchant shall pay so much for fraught the Defendant saith by way of traverse that he did not go with the next wind and it was obiected by Stone of the Temple of Counsell with the Plaintiff that the Traverse was not good but he ought to have traversed that the Ship did not go at all for that which is materiall shall be traversed and that the Ship did not go is the most materiall thing here and this appeareth by 15 E. 4. 2. where a Gift in tail is traversed and not the death of the Tenant in tail 19 H. 8. 7. 36 H. 6. 16. 2 H. 5. 2. 2 H. 7. 12. and there are cases to this purpose Co. lib. 7. 9. Ughtreds case If a man intitles himself to Land by an Estate which cometh by Condition he ought to shew that the Condition is performed A Covenant against a Covenant will not make an Estoppell but he shall bring his action 3 H. 6. 33. Where he ought to shew that he went to Rome because it is a precedent Condition The principall case in Ughtreds case prove other to wit that which is materiall is alledgable And the difference upon the case of 48 E. 3. 3. 4. Where A. Covenant with B. to serve him with three Esquires in France and B. covenant for it to pay him 42. marks he may chuse to covenant in generall or speciall as he will for there was Covenant against Covenant and here there is a Covenant of one part to go with the Ship and on the other part to pay so much for the Fraught and so Covenant against Covenant And it seemed to Doderidge Iustice that the Traverse is not good for the Traverse here is by permission of God And for another thing where Merchants
was given this day The same Term in the same Court. Goodwin versus Willoughby GOodwin brought an action upon the case against Joane Willoughby wife of Thomas Willoughby and upon non Assumpsit pleaded it being found for the Plaintiff it was moved in Arrest of Iudgment 1. That the Plaintiff shews that Thomas Willoughby was indebted upon account and doth not shew that Joane Willoughby is Executrix or Administratrix and yet that she promised to pay wheras in truth she hath no cause to pay for there is no consideration and so Nudum pactum Jermy for the Plaintiff for the first because it doth not appear for what cause he accounted I answer that this is but a meer conveyance And for the second that she does not suppose that the Feme is executrix c. But here is a good consideration which is that she shall not sue or molest and that he gave day for payment this is a sufficient consideration But Stone of counsell with the Defendant said that the first is the ground of the action and therfore he ought to shew for what he accounted Crew chief Iustice two exceptions have been taken 1. For the alledging the manner of the account which I conceive is good enough and he need not shew the cause of the account And as to the second because it doth not appear that she is Executrix or Administratrix and so no consideration and so no Assumpsit But here she assumes to be Debtor and makes a promise to pay which is an acknowledgment of the Debt by inference and therfore he conceived that the Assumpsit was good Doderidge Iustice for the first it is good enough yet Cum indebitatus existit is no good Assumpsit but here he shows a speciall way of Debt and it would be long and tedious to describe his account For the second there is no cause of action because it doth not appear that she is Executrix or Administratrix or Executrix of her own wrong If I say to one do not trouble me and I will give you so much this is not actionable for there ought to be a lawfull ground and for this cause the Declaration Where forbearance without cause of action is no ground of an Assumpsit is void for it is only to avoid molestation Give me time c. this is no good Assumpsit for forbearance is no ground of action where he hath no cause to have Debt Jones Iustice agreed in the first with them because a generall action upon the case sufficeth and in truth it is but an inducement to the action but for the other part he doubted and he cited one Withypools case an Infant within age promised to pay certain money he makes an Executor and dies within age the Executor saith to him to whom the promise is made forbear and I will pay you and there an action upon the case did lye against the Executor upon this promise and yet it was a void Contract but there was colour of action forbear till such a time now the other hath lost the advantage of his Suit But he gave no opinion Crew It is a violent presumption that he is indebted But by Doderidge here is no colour to charge her but only by inference that she is Executrix If a stranger saith forbear such a Debt of J. S. and I will pay it it is a good consideration for the losse to the Plaintiff and in this case it appears not that there is any cause and Broom Secondary said that Withypools case before cited was reversed in the Exchequer Chamber Jones If an Infant makes a promise it is void and he may plead non Assumpsit which Doderidge did not deny But upon his Obligation he cannot plead Non est factum for he said that he shall be bound by his hands but not by his mouth The same Term in the same Court Drope versus Theyar IN Debt by Drope against Theyar an Inne-keeper upon Issue joyned and a Verdict for the Plaintiff Bolstred moved in Arrest of judgment for the Defendant and the matter was that one Rowly who was servant to Drope lodged in the White Heart at S. Giles and there had certain Goods of his Masters which were stoln from him in the night and Drope the Master brought an action therupon and it was moved by Bolstred that the Plaintiff was without remedy 1. Because it was in an Inne in London for the Register 105. is Quando quis depraedatus euns per patriam which as he said could not be extended to an Inne in London 2. It ought to be an Inne as Inne-keeper 3. He ought to be as a Guest lodging and this appeareth in Culeys case in 5 Jac. in Celly and Clarks case which was entred Pasch 4. Jac. Rot. 254. It was adjudged that where the Guest give his Goods to his Host to deliver to him three daies after and the goods are lost that an action is not maintainable against the Inne-keeper for them and this was in an Inne in Uxbridge And in one Sands case where the Guest came in the morning and his Goods were taken before night he shall have an action against the Inne-keeper 4. The Goods ought to be the Goods of the party who lodgeth there for the words are Ita quod hospitibus damna non eveniunt and here the Master who brought the action was not Guest But admit the Master shall have the action yet he ought to alledge a custom that the Master shall have the action for the Goods taken from his Servant Trin. 17 Jac. Rot. 1535. Bidle and the Master brought an action for Goods taken from the Servant and there it was resolved that he ought to conclude that Pro defectu c. and apply the custom to him being Master Sec Co. Book of Entries 345. And that a custom that for other mens Goods in the custody of Guests the Owner shall have an action against the Inne-keeper if they be stollen Ob. This is the Common Law and therfore ought not to be alledged Answ Where a man takes upon him to shew a custom he ought to shew it precisely he cited Heydons case Co. lib. 3. 28 H. 8. Dyer 38. And it was said for the Plaintiff that Goods are in the possession of the Master which are in the possession of his Servant and so here the Master might have had action well enough 8 E. 4. my Servant makes a Contract or â—â—ies Goods to my use I am liable and it is my act By the Court an Inne in London is an Inne and if a Guest be robbed in such an Inne he shall have remedy as if he were Enns per patriam But the cheife point was whether the master shall have the action in the case where the Servant lost the goods and by Jones Justice in 26 Eliz. in C. B. upon the Statute of Hue and Cry it was resolved that if the Servant be robbed the Master may have the Action and so by him
shall it be in the case Doderidge Justice the Servant may have the Action also If the Servant be robbed of wares the Master or Servant may have an appeale 8. E. 2. Tit. Robbery two joynt Merchants one is Robbed both shall joyne in the Action and may also joyn in the appeal But it may be objected as Whitlock Iustice did that the Master is not Hospitans I say this is to no purpose A man put his Horse in the Stable and before he goes to bed or lodging the Horse is gone he shall have an action although he did not lodge there For the word transeuntes although he be at the end of his Iourney yet it is within the custom and he shall have action And by Crew if I send cloath to a Taylor and it is stoln from him the Taylor shall have an action of trespasse or the Owner Jones the case of Hue and Cry is a more stronger case then this is for there the Servant ought to swear that he is robbed and yet the Master shall have an action And for the word transeuntes all agreed that although he be at the end of his journey or at an Inne in London yet he is within the remedy of this Law And if a man stay in an Inne a moneth or a quarter of a year shall not he have an action if he lose his Goods Doderidge agreed that if a man be boarded in an Inne and his Goods are stoln he shall not have an action upon this Law And notwithstanding this objection judgment was given for the Plaintiff upon the Verdict Trin. Term 2 Car. In the Kings Bench. Sir William Buttons Case SIr William Button a Iustice of Peace brought an action for these words Sir William Buttons men have stoln Sheep and he spake to me that I should not prosecute them and it seems that the action did not lye because Words Sir William Buttons men have stoln Sheep and be spake to me that I should not prosecute them Sir William did not aver that he is a Iustice of Peace and it doth not appear in what County the said Felony was done 36 Eliz. One brought an action for these words A. is a cosening fellow and the greatest Pickpurse in Northamptonshire and there is not a Purse picked within 40. miles of Northampton but he hath a hand in it And the action did not lye because he did not aver that there were Purses cut Jones Iustice put this case One saith that A. is as strong a Thief as any is in Warwick Gaol he ought to aver that there is a Theef in Warwick Gaol or otherwise they are not actionable Doderidge put this case There is a nest of Theeves at Dale and Sir Iohn Bridges is the maintainer of them these are actionable because it implies maintenance Note that it appeared upon a motion which the Attorney-generall made against one Lane who is a Recusant in Northamptonshire that a Lease for years made by a Recusant of his own Lands after conviction if it be Bona fide will bind the King but if it be upon fraud and covin then it will not and Whitlock said that it is a common course for Recusants to make Leases after their Indictment and before conviction The same Term in the same Court The Case of the Major Bayliffs and Jurates of Maidstone IN a Quo warranto depending against the Mayor Bayliffs and Iurates of Maidstone in Kent Serjeant Finch of Counsell with them of Maidstone put the case briefly in effect thus In the Quo warranto against them it was ordered by the Court that they should have day to plead untill afornight after Trinity Term and the truth was that they had not pleaded accordingly wherupon Iudgment was entred in the Roll and the Writ of Seisin awarded and execution therupon and afterwards by a private order in the Vacation by the chief Iustice and Iustice Jones it was ordered that the Iudgment should be staid and the truth was that it was never entred amongst the Rules of the Court and therfore he prayed that the Iudgment might not be filed but that the last order might be observed and that they might amend their Plea Hendon Serjeant on the other side said that it could not be for by the Iudgment given the King was intitled to have the profits of Franchises which he shal not lose he cited the case which is in F. N. B. 21. Error in B. R. cannot be reversed the same Term before the same Iustices without a Writ of Error but otherwise it is in C. B. and he said that the same course was observed in Eyre there can be no pleading in Eyre after the Eyre determined and upon this he cited the case of 15 E. 4. 7. before the Iustices in Eyre if the Defendant does not come the Franchises shall be seised into the Kings hands nomine destinctionis and if the party who ought the Franchise doth not come during the Eyre in the same County he shall forfeit his Franchise for ever so here after Iudgement entred there can be no plea per que c. Finch we have order from the Court for stay of Iudgement here no perfect Iudgement was given and this is not without president and he cited one Chamberlains Case where the Iudgement was nigh to perfection c. but he did not put the Case Creve ch Justice in this case there was the assent of the Attorney generall who prosecuted the Quo Warranto and so the cases put by Hendon to no purpose Jones upon F. N. B. 21. J. took this difference true it is that the Kings Bench cannot reverse a Iudgement although it be in the same term without a Writ of Error but this is where error lies in Where the Kings Bench may reverse its owne judgmeÌ„t without Writ of Error and where not the same cause in the same Court as upon outlawry but if no error lies in this Court for the same cause but in Parliament then the Kings Bench may reverse the Iudgement without Writ of Error being the same term And the Iudgement here was ever of Record for the Roll untill it be fixed amongst other Rolls is no Record And for the Case of 15. E. 4. 7. it is not like our case in reason for when When a Roll â—s become a Record the Eyre is determined the power of the Iustices in Eyre is also determined but it is not so here for the Iustices have power from Term to Term But Noy argued further for the King that it is a Iudgement of another Term and Execution awarded upon it and said that it is without president that now it should be avoyded and upon the awarding of execution the King under his seal hath averred that judgement is given which cannot be falsified and for Chamberlains Case he said that there was an assent in it Doderidge the Question which now is moved is but this whether a Iudgement entered in a private Roll
there ought to be a dislike of the Father also and in the Declaration it is also said that she dis-agreed Doderidge agreed with Jones that â—he Declaration is not good and that it is not warranted by the Covenant and that the breach is not well assigned The case is grounded upon the second covenant which consists upon a contingency which contingency is if there happen any discord between the Father and the Son c. the words are joynt and all ought to disagree True it is that in some cases a conjunctive shall be taken for a disjunctive but this is according to the matter and circumstances of the fact but in our case it shall not be taken disjunctively If the Father the Son and the Wife had disagreed then it is cleer that an Action of covenant lies but this is casus omissus and no provision for it Also it is only alledged in the Declaration that she disagreed whereas a mutuall disagreement between all ought to be alledged and therefore Judgement was given Quod quaerens mil. capiat per bellam But all agreed that the Wife might have boarded with Tooker the Father if she would but her new Husband could not AT thowe Sergeant took divers exceptions to an Inditement of forcible entry upon the Stat. of 8. H. 6. against Ployden and others for expelling one Syms from his Copi-hold and the principall exception was because disseisivit was not in the Inditement and in truth it cannot for albeit the Stat. of 21. Jac. cap. 15. gives power to Iudges and Iustices of Peace to give restitution of possession to Tenants for yeares and Copy-holders in which there shal be an entry or detainer by force yet the Stat. does not give an Inditement of forcible entry of copy-hold Noy a Copy-holder shal now have an Iditement of forcible entry but disseisivit shal not be in it for no Iury will find that because it is not possible because a Copy-holder hath no Frée-hold and yet a Copy-holder shall have a Plaint in nature of an Assize against a stranger but not against the Lord And at last the opinion of the Court was that the Inditement was good UPon a Capias directed to the Sheriff of London to take the body of J. S. the Capias was returnable die Jovis which was the day of All-souls and thereupon the Sheriff took the party but he returned that because the return of the Writ was upon a day that was not Dies Juridicus he suffered the party to go at large And the return was holden insufficient for by Doderidge the Writ was good and the taking and detaining of the party by vertue thereof was lawfull but yet he could not have the party there at the sayd day and therefore the Sheriff was compelled to bring the party into Court which the same day he did accordingly The same Term in the same Court A Man granted a Rent charge of 12 l. to one of his Sons out of the Mannor of D. by Déed and died the Grantée lost his Deed the Land is extended to I. D. by vertue of a Recognizance acknowledged by the eldest Son of the Grantor the Grantée sue for his Annuity before the Councell of York to be relieved in equity for that in respect of the losse of the Déed he could not have remedy at the common-Law and J. D. the Conuzée obtained a prohibition out of this Court upon this surmize that although the Councel of York should make a Decree that he should pay the said Annuity yet it should be no discharge for so much against the Conuzor because their Decrée was no legall eviction Now came Smith of the Temple and prayed a Precedendo for the Grantée to the Councel of York and the opinion of the whole Court was that a Decrée there being no legall eviction shall not be a discharge for so much against the Conuzor Doderidge the Grantée of the Rent-charge having now lost his Déed can have no remedy in equity for in this case Equitas sequitur legem and of the same opinion were Jones and Whitlock but by Doderidge which was not denied if the Grantee had lost the Deed by a casuall losse as by firâ— c. in such a case he shall have remedy in equity and he sayd that in the beginning of King James when Egerton was Lord Chancellor there was such a Case in Chancery A Grantee of a rent-seck had seisen of it so that he might have an assize and he devised it to J. S. the Devisée sued in Chancery to have his Rent and seizen of it and he could have no remedy for it in Chancery And this was one Malleryes case The same Term in the same Court ONe Hebborne was indited for stopping a way c. and it was mooved that the inditement was insufficient because it is not layd that it was communis via but only that it was a way to the Church and per Curiam it was good enough and by Jones Iustice the Inditement is good enough although there wants vi armis because he who is supposed to stop the way is owner of the Land The same Term in the same Court AN Action upon the Case upon a promise was brought in the Town of Northampton and the Consideration alledged was that if the Defendant here in the Writ of Errour would discharge Bagnot of Execution c. that then the Plaintiff here in this Writ of Errour promised to pay him eleven pounds and there the Defendant pleaded quod exoneravit illum de Executione relaxavit And Bolstred for the Plaintiffe moved this for Errours that the Plaintiffe in the inferiour Court did not shew by what manner of release it was nor that it was by writing for this being the Consideration upon which the Action is grounded ought to be put in certain Mich. 15. Iac. Staple and King Execution of a consideration ought to be shown 35 H. 6. 19. a discharge ought to be shown in certain 22 E. 4. 43. the Lord Lisles Case and Mich. 16. Iac. in this Court Liverel and Rivets Case which was entred Trin. 16. Iac. Rot. 32â— in an Action upon the Case upon a promise upon issue joyned it was found for the Plaintiffe and it was moved in arrest of Judgement because the Consideration was that the Plaintiffe should discharge one Ogle and he declares that he did discharge him and thereupon he brought this Action and because he declared but generally quod exoneravit the Judgement for that very cause was stayed and 36 Eliz. one covenanted to make an assurance and pleaded generally that he had assured and resolved that it was not good and in Rosse and Harvies Case this Term which was entred Trin. 2 Car. Rot. 1408. In Covenant the Defendant covenanted to give security the Defendant pleaded that he offered security and resolved that it was not good per que c. Jermy for the Defendant that the plea is good enough for a Release by Peroll is sufficient I
will remember but one book upon which I will rely 27. H. 8. 24. Jordons Case in an Action upon the Case the Defendant assumed to the Plaintiffe that if the Plaintiffe would discharge I. T. of such an Execution in which he is bound at the suit of the Plaintiffe then if I. T. did not satisfie the Plaintiffe by such a day the Defendant would do it and they were at Issue upon an Assumpsit and there the Count is admitted good and he need not plead it was by writing because the Discharge is good without writing but it hath been resolved that if a man be in execution at my suit and I go to the Sheriffe and command him to discharge the Party this is a good Discharge although it be by Peroll Jones If I say to the Sheriff suffer the party to go at large this is a good release both to the party and to the Sheriffe and by him relaxavit implies a sufficient release and therefore the Plaintiffe in the Writ of Errour shall be barred And if a man be bound to save one harmlesse in an Action brought upon this obligation he pleads that he hath saved him harmlesse and shews not how the Plaintiffe demurres generally he shall not now take advantage of it Doderidge The Cases put by Bolstred are not to this purpose for all those cases are of things in certaine and he agreed that a release by perol was sufficient and the case of 22. H. 8. is a stronger case then this is Whitlock agreed also and therefore Doderidge advised the Plaintiff to be satisfied or otherwise they would affirm the first Judgement Trin 2. Car. in the Kings Bench. Caryes Case IN Caryes case of Grayes Inne where these words were adjudged actionable You a Councellor a Foole an Asse a Hangman a Councellor of Law a Foole in the Profession it was said by Jones Instice it was not sufficient to say that he was eruditus in Lege but he ought to say that he was Homo Conciliarius and he said that in maintainance against Boughton it came in question upon evidence to a Iury whether one who is a Barrister may give advice and it was ruled that he could not albeit he had Letters Patents to inable him as fully as if he had been called to the Bar and in Fleetwoods case adjudged that these words You the Kings Receiver you are his Deceiver are you not were actionable The same Term in the same Court SIr Tho. Savill was indited for breach of the peace within the Pallace to wit for assaulting Sir Fran Wortley and he pleaded his pardon and Doderidge said that to strike in the place was the losse of the right hand by the Law and in this poynt our Law agrees with the Lawes of France and Spain and all other Nations for as the person of the King so his Palace and courts of Iustice are so sacred that such contempts and affronts are judged worthy of such punishments and said that the Book of 24. E. 3. 33. Fitzherbert Forfeiture 22. of which he would have Students to take notice is that where one came into the Palace armed and being brought to the Barre in his compleat armor the cause was demanded and he said that it was in his own defence being in fear of a great man then in Court and he was committed to Prison by the Court during the Kings pleasure and his Lands forfeited during his life Vide for the like matter 41. E. 3. Fitzh Coron 280. Dyer 188. 22. E. 3. 13. Hillar 2. Car. in the Kings Bench. ONe Mathias Wheelhorse was indited at the Sessions of the Peace holden in the Town of Northampton quia Noctivagus and because he divers dayes and nights did frequent the house of c. which was within the liberties of Southampton and was a suspected Bawdy-house and Crawley Sergeant moved that this Inditement was insufficient for three reasons 1. Because it does not appeare in the Inditement that the party knew this to be a Bawdy-house 2. Because it is not said that it was a Bawdy-house but that it was susspected to be a Bawdy-house 3. Because the Inditement is before Iustices of Peace Villae de Northampt and the house is infra libertates Villae de Northampt. and it shall not be intended that the power of the Iustices of Peace extend thither and for it see Co. lib 5. 120. Longs case 13. H. 7. 33. 34. 22. H. 7. Kelleway 89. Co. lib. 9. Mackaleys case And the Court gave no opinion concerning the exceptions But another thing was moved to wit that one could not be indited before Iustices of peace for being Noctivagus but this is to be inquired of in the Leet and in this the whole Court was against him for it is a misdemeanor and it is contrary to the Statute of Winchester and every one may arrest him And at another day he moved this last exception again and sayd that the Iustices of Peace have no power to fine men that are noctivagant yet true it is that a Court-Leet hath such a power Rastol Leet 2. and true it is also as it is in 4. H. 7. 1. 2. that every one may arrest a Night-walker but there it is said that if he appeareth to be a man of good fame the party who arrests him ought to let him go at large and the Inditement here is only that he was Noctivagus it appears not that he is a suspicious Night-walker by Doderidge Whitlock Iustices only present by the Common Law every man may arrest him who is Noctivagus and the word Noctivagus implies that he was a common Night-walker and they sayd that Iustices of peace by their Commission have power to take such Inditements for it is of ill behaviour and albeit the Inditement were nought for the other exceptions yet being good in this it shall not be quasht and therefore Iudgement was given upon it and the party fined 40 s. The same Term in the same Court. Sparrow versus Sherwood IN Trover and Conversion of two loads of Fitches of certain Land c. The Defendant justifie by the command of Hare to whom part of the Land belongs and to one Pots to whom another part in right of the Lady his Wife belongs and shews that part of the Fitches did grow upon the Land of one and part upon the Land of the other and upon this the Plaintiff demurs 1. Because he justifies by the command of two generally and he cannot justifie upon the Land of the one by the command of the other and therefore he ought to have alledged severall commands 2. Because he does not shew particularly upon whose Land the Fitches grew but that part grew upon the Land of one and part upon the Land of the other which is incertain 3. Because the Wife of Pots is called by the name of Lady and the Wife of an Esquire cannot be a Lady Doderidge and Whitlock onely present for the first were of opinion
alter the intendment that the Law hath otherwise of the words And Gawdy agreed also that in such cases the Defendant may plead the generall Issue and upon the matter also the Jury ought to find him not guilty But Popham and Clench sayd that this was a dangerous matter to be put in the mouthes of the Lay Gents as hath been said before and therfore to put it to the Iudgment of the Law by pleading And for the exception they ought to have shewn here where by whom and against whom the Petition was delivered to this they said that the exception was to no purpose for this was but a conveyance to the Speech used which Speech was the substance of the Bar and in this they put the case of the Lord Cromwell which was in this Court 22 Eliz. Rot. 752. In an Action upon the Statute of Scandalum Magnatum by him brought against Thomas Dye Clark for saying to the Lord Cromwel It is no news though you like not of me for you like of those that maintain Sedition against the Queens proceedings in which the Defendant said that he was Vicar of North Linham in the County of Norf. and that the Plaintff mentioned one Vincent Goodwyn Clark at such a time and one Iohn Trendle at such another time neither of them being licenced to preach in the said Church against the will of the said Defendant and shew how they severally preached there in their Sermons and shew certainly in what point Seditious Doctrine against the Laws of the Church as against the Crosse used in Baptisme and the wearing of the Surplice and that afterwards in speech therupon between the said Plaintiff and him the Plaintiff said to the Defendant That the Defendant was a false Knave and said in English words that he liked not of the Defendant wherupon the Defendant said the words comprised in the Declaration Innuendo That he liked of the said Goodwyn and Trendle who maintain Sedition Innuendo seditious Doctrine against the Queens proceedings Innuendo predict Leges Stat. Ecclâ—siae hujus regni Angl. c. And the Plaintiff was put to answer Scilicet de injuria sua propria absque tali causa c. And note in this case the Defendant would first have justified for the matter preached by one and it was not allowed by the Court but he was put to speak to both or otherwise it had not been good because his speeches were in the plurall number to wit That he liked of those which refers to more then to one And it was said in this case that the word Subject might have severall significations according to the circumstance wherupon it is spoken As Subiect generally without more is to be intended of the Queen but according to the circumstance it may be said Subject of England or Subject of Ireland or Subject to the Law or subject to any other authority or power set over him or subject to his Affections And if a man saith of another that he is a Subject and therfore he ought to serve the Queen in her Warrs and he answers that he is sorry for that and is grieved for it no Action wil lye for this because the grievance refers to service which is to be done and not to his Subjection as a Subject Dillon versus Fraine 9. IN Trespasse brought by William Dillon Esquire against John Fraine See this in Cook lib. 1. 120. bâ— the name of Chudleighs case for breaking of his Close at Tavestock in the County of Devon called Seden upon not guilty and a speciall Verdict the case appeared to be this to wit that Sir Richard Chudleigh Knight was seised in his Demesne as of Fee of the Mannor of Hescot with the Appurtenances in the County of Devon of which the said Close was parcel and so seised 26 April 3 4 Phil. Mar. by his Deed of Feoffment of the same date enfeoffed Sir Tho. Saintleger Knight and others and their Heirs of the said Mannor to the use of the said Sir Richard Chudleigh and his Heirs of the body of the said Elizabeth then the wife of Richard Bainfield Esquire lawfully begotten and for default of such Issue then to the use of the said Sir Richard Chudleigh and of his Heirs of the bodies of other wives of other persons lawfully begotten And for default of such Heirs then to the use of the performance of the Will of the said Sir Richard Chudleigh for 10. years after his decease and after the said Term finished then to the use of the said Sir John Saintleger and his Co-feoffees and their Heirs during the life of Christopher Chudleigh Son and Heir apparant of the said Sir Richard and after the death of the said Christopher then to the use of the first Issue Male of the body of the said Christopher and to the Heirs Males of the body of this first Issue Male and for default of such Issue to the second Issue Male of the body of the said Christopher to the Heirs Males of the body of this second Issue Male and so to the tenth Issue Male And for default of such Issue then to the use of Thomas Chudleigh another Son of the said Sir Richard and of the Heirs of his body lawfully begotten And for default of such Issue to the use of Oliver Chudleigh another Son of the said Sir Richard and of the Heirs of his body lawfully begotten And for default of such Issue to the use of Nicholas Chudleigh another Son of the said Sir Richard and of the Heirs of his body lawfully begotten and for default of such Issue to the right Heirs of the said Sir Richard Chudleigh for ever wherby they were seised accordingly after which the 17th of Novemb. 5 6. Phil. Mar. the said Sir Richard died without any Heir of the body of any of the wives before mentioned And after that the said Christopher took to wife one Christian Strecheley after which to wit the 14th day of August 1 Eliz. the said Sir John Saintleger and the other Feoffees by their Deed of the same date enfeoffed the said Christopher of the said Mannor to have and to hold to him and his Heirs for ever to the use of the said Christopher and his Heirs the said Oliver Chudleigh then being living after which to wit the 20th day of September 3 Eliz the said Christopher had Issue of his body lawfully begotten one Strechly Chudleigh his first Issue Male And after this to wit the 30. day of March 5 Eliz. the said Christopher had Issue of his body lawfully begotten one John Chudleigh his second Issue Male after which to wit the first day of July 6 Eliz. the said Christopher by his Deed indented of the same date and inrolled within six months according to the Statute bargained and sold the said Mannor to Sir John Chichester Knight and to his Heirs and in the interint also between the date of this Deed and in the inrolement therof to