of five Steers and that certain Malefactors unknown to him did steal them from him at Broughton in the County of Bucks and that the 22 of Novemb. 13 Jacob. the Defendant pursued them to London and there did search for the Steers and found them in the possession of the Plaintiff and did require the Plaintiff to shew them unto him and how they came into his possession and because that the Plaintiff did deny to deliver them unto him and did refuse to permit him to see them and to shew how he came by them and that the Plaintiff gave him such incertain answers that the Defendant did suspect the Plaintiff had committed the Felony and the Defendant for better examination of the promisses and restitution of the said Cattel did inform the said Sir Thomas Bennet of the premisses and did procure a Warrant from him to bring the Plaintiff before him to be examined concerning the said Cattel whereupon the Plaintiff was brought before him and examined and because he could not make it appear how he came by them and for that he gave very uncertain answers and for that the said Sir Thomas did suspect him he did therefore binde him in a Recognizance of 50 l. to appear at the next Goal delivery and did binde the Defendant in a Recognizance of 20 l. to prosecute whereupon the 29 Novemb. 13 Jacob. the Defendant did exhibit a Bill of Indictment and did give evidence to the Iury that the Cattel were stoln from him and that he found them in the Plaintiffs possession and that he denyed the Defendant the view of them or to shew how they came to his hands whereupon the Iury found the Bill and thereupon the Plaintiff did appear at the next Goal-delivery the first Octob. 13 Jacob. and was there imprisoned until he was legally acquited which is the same imprisonment for Felony and procurement to be indicted and detainment in prison whereof the Plaintiff complains The Plaintiff confessed the Felony Replication but says that the 23 Octob. 13 Jacob. Thomas Burley was possessed of the said five Steers at Barnet in the County of Hertford and did then and there sell the said Cattel in open Market to the Plaintiff for 17 l. being a Butcher and that the said sale was entered in the Toll-book and the Toll payd wherefore the Plaintiff was possest of them and did drive them to his house in London the 24 Octob. 13 Jacob. and that the 21 Novemb. 13 Jac. he killed four of the said Cattel and then the said 22 of November the Defendant came to his house to search for the said Cattel and the Plaintiff did acknowledg to him that he had the said Cattel and that he had killed four of them and that he had bought them as aforesaid and did then also shew unto him the Steer that was then living and that the Defendant had sufficient notice that the Plaintiff had bought the Cattel in the Market and that although the Defendant did know that the Plaintiff had bought them and was not guilty of the Felony yet the Defendant out of malice and against his knowledg did charge the Plaintiff with Felony c. as he hath declared absque hoc that the Plaintiff did refuse to permit the Defendant habere visum of the said five Steers or to shew how he came by them Whereupon the Defendant demurred in Law Demur and shewed that the matter of Inducement to the Travers was insufficient and that the Travers was insufficient and the matter not traversable And I conceive that the Plaintiff ought to have Iudgment For in the 7 Ed. 4.20 In a false Imprisonment The Defendant said that before the imprisonment one B was killed by certain persons in whose company the Plaintiff was and the report of the County was that the Plaintiff was party to the Felony whereupon he arrested the Plaintiff for suspicion and did commit him to the Sheriff And Bryan did Travers the Indictment without that that the Plaintiff was in their company and without that that the report was so c. And Nidkam said there that issue could not be taken upon the report but upon the matter in fact For if men say in the Country that I am a Thief that is no cause to arrest me but matter in fact ought to be shewed which is Traversable whereupon issue was taken upon the first matter onely and in the ninth of Ed. 4. it is holden that a man ought to shew some matter in fact to prove that the Plaintiff is suspected And 11 Ed. 4. 46. in a false Imprisonment The Defendant who justifies upon a false imprisonment for Felony ought to shew some matter in fact to induce his suspicion or that his goods were in his possession of which the Country may take notice And in the 17 Ed. 4. 5. in a false imprisonment the Defendant justified because that A. and B. did rob another and did go to the house of the Plaintiff whereupon the Constable did suspect him and did require the Defendant to assist him in arresting him c. and holden there that they ought to surmise some cause of suspicion or otherwise the plea was not good 7 H. 35. Suspicion cannot be tryed because it is but the imagination of a man which lies in his own conceit 5 H. 7. 4. In a false Imprisonment the Defendant justified because that A. was poysoned and the common voyce and fame was that it was done by the Plaintiff whereupon he was taken and there it was argued if this were sufficient cause some said that he ought to shew some special cause but it was agreed in conclusion that it was but all agreeo that suspicion only is not enough without alledging cause of suspicion and says 2 H. 7. 16. and 7 Elizab. Dyer 236. In an action on the Case for calling one Thief the Defendant justified for common voyce and fame and adjudged insufficient but this with suspicion had been sufficient cause to arrest one and carry him to the Goal And Michaelm 38 and 39 Elizab. In the Common-Pleas in an Action on the Case by Damport against Symson for giving a false testimony adjudged that the intent of the swearers cannot be put in issue or tryed 2 H. 4. 12. B. 46 Ed. 3. 4. 2 H. 7. 3. In a Trespass the Defendant justified that he was robbed in the County of B. and did suspect the Plaintiff in the County of Stafford The Plaintiff pleaded De son tort demesne c. and it was there agreed that all the case was in issue And Tow said that it should be tryed by both Counties if they could joyn but he doubted if they could joyn but in the 16 of H. 7. 3. B. this case is reported to be adjudged that if the Counties could not joyn it was no plea because it ought to be tryed by both And so de son tort demesne shall be full of multiplicity and therefore it is no plea as in Crogates Case
pursue their claim by entry or action within five years next after the Proclamations and saving such Action Right Title Claim and Interest as first Shall grow remain descend or come after the Fine and proclamations by force of any Gift in Tail or by any other course and matter had and made before the said Fine levied so as they pursue within five years c. By which it appears that nothing is saved to the strangers but rights actions and interests arising by force of any cause or matter before the Fine and therefore nothing is barred by the Statute but former rights for what ever right is barred as to the Privies is saved to the strangers so as they pursue their claim within c. Sir Richard Shuttleworths Case between Barton and Lever 37 Eliz. Tenant in Tail levied an erronious Fine with Proclamations and then as Vouchee did suffer an erronious Recovery and died the Issue brought a writ of Error to reverse the Fine the Defendant pleaded the recovery afterwards and the Plaintiff to maintain the writ did alledge a default in the Recovery whereby he conceived the same to be void but resolved that it was but voidable by a writ of Error and therefore so long as it was in force the Issue was barred to reverse the Fine And therefore it was agreed there that the Issue ought first to reverse the Recovery by writ of Error and then he may reverse the Fine And so in our Case if the Plaintiffs should be barred in the writ of Error by the Fine they shall be without remedy although that the Fine be erroneous as I conceive it to be for if they bring a writ of Error to reverse the Fine first the Recovery although it be erroneous will be a clear Bar to them as it is adjudged in the said Case of Burton and Lever 7 H. 4. 40. a. One brought a writ of Error to reverse an Outlawry the Attorney said he was outlawed at the Suit of another Hulls said there that he could not be received for when one is to adnull an Outlawry he shall not be disabled by another Outlawry although he be twenty â—imes outlawed for then it will follow that there shall be delay infinite 26 Ed. 3. 66. Tenant in ancient Demesne levies a Fine at the Common Law and after does levy another and the Queen being seignioresse of the Mannor did bring a Writ of deceit to reverse one of them she shal not be barred by the other especially by the first to reverse the second And as to the Warranty 2. Matter of the Bar. I conceive that it is no Bar for many reasons 1. Because Warranties do bind only Rights and Actions which are in esse at the time of the warranty made and not Rights and Actions which do accrue after the Warranty created but this Writ of Error is given to the Plaintiffs in respect of the erroneous Recovery which wâ—s suffered after the creation of the warranty and therefore the warranty is no Bar to the Plaintiffs to have this writ of Error 30 H. 8. Dyer 42. B. All the Iustices did agree that when a man does bind him and his Heirs to warranty they are not bound to warrant new Titles of any Actions accrued since the warranty but only such Actions as are in esse at the time of the warranty made 12 Assise 41. The Tenant in a Praecipe quod reddat made a Feoffment hanging the writ and after the Demandant had recovered by erroneous Iudgment notwithstanding that the Feoffment had excluded the Tenant from his Right to the Land yet this shall not exclude him from his writ of Error which is accrued to him since the Iudgment given after the Feoffment Vide 18 19 Eliz Dyer 353. But it may be objected that this warranty shall bind the Right of the Plaintiffs to the Land for although the Recovery be reversed Object yet the Plaintiffs shall be put to their Formedon to recover this Land in which they shall be bâ—rred by this warranty and so it shall be in vaine for them to reverse the recovery for by the warranty they shall be barred to have the Land I answer That notwithstanding the Collaterall warranty Answer yet a Right doth remain in the Plaintiffs which is bound by the warranty which Right is taken away from the Plaintiffs by this Recovery by which the Law would have given to them a Remedy which is by writ of Error to be restored to their Right for a collaterall warranty doth not extinguish the right of him who is bound by the warranty but only does bind the Right for the time that the warranty remains undefeated and this is proved by many Authorities 34 Ed. 3. Droit 29. If the Tenant in a writ of Right hath collaterall warranty of the Ancestor of the Demandant he ought to plead it and not to conclude upon the Right for if he conclude upon the Right it shall be found against him because the warranty doth not give or extinguish the Right but only binds it 43 Assise 44. A collaterall warranty may be defeated by a Deed of Defeasance made after the creation of the warranty by which it appears that the Right is not extinguished for if so it could not be revived by the Defeasance and with this agrees 43 Ed. 3. 20. Earle of Staffords Case 19 H. 6 59. B. Fortescue A collaterall warranty does not give Right for if Land be given to one and the Heirs Males of his body and he hath two Sons and doth alien and the collaterall Ancestor to the Son doth release with warranty to the Alinee and dies and the Donee dies now is the eldest Son barred but if he die without Issue Male leaving Issue a Daughter the younger Son shall not be barred by the warranty 24 H. 8. B. Formedon 18. If Tenant in Tail hath two Sons by severall venters and dies and the Ancestor collaterall of the elder Son doth release with warranty and dies without Issue and the elder Son dies without Issue the younger Son shall recover by a Formedon because he is not Heir to the warranty And Littleton 160. B. Tenant in Taile hath three Sons and discontinues the second Son Releases to the Discontinuee with warranty the Tenant in Taile and the second Son dies now is the eldest Son barred because the warranty is collaterall to him but if he die without Issue the younger may have a Formedon and shall not be barred by the warranty because that the warranty as to him is lineall and to this purpose is the 8. of Rich. 2. Warranties 101. By which Book it does appear that the Estate-tail is not extinct by the warranty for if it could be so it can never be revived again This Warranty is executed and determined for it was made to the Conusees against whom the Writ of Entry whereupon this Recovery was had was brought and they did vouch to Warranty Thomas Lea and Katherine his wife who made
But it may be objected That there is no place mentioned where the payment or acceptance was Answer I answer that it is not material for it is not issuable but onely evidence to prove the fraud which is the substance of the Plea and that is proved by the said Case of Turner And 42 Ed. 3. 14. Conspiracy shall be brought where it was done and not where the Indictment was And 44 Ed. 3. 31. Attachment upon a Prohibition lies where the summons is although the Plea be held in another County 1 H. 7. 15. B. Payment with Acquittance pleaded in an Action of Debt upon a Bond is not double because that acquittance onely is issuable and the payment is but evidence Then the Recognizance is no cause of the retaining the 100 l. as in Cook R. 5. Harrisons Case Green brought an Action of Debt upon a Bond of 40 l. against H. Administrator of Thomas Sydney the Defendant pleaded that the Intestate was bound in a Statute besides which he had no goods c. The Plaintiff replyed that there was an Indenture of Defeasance for performance of Covenants which hitherto were performed whereupon the Defendant demurred and it was adjudged against him for a Debt upon a Bond shall be payd before a Statute to perform Covenants when none of them then were nor perhaps ever shall be broken but are future and contingent things and therefore such possibilities which peradventure shall never happen shall not bar present and due Debts upon a Bond. And although the Condition of the Recognizance be to pay mony yet is it to be payd to a stranger and therefore it is not any Debt but the Debt is onely by the Recognizance Also it is not to be payd but upon a contingency to wit if the Infant comes to full age but if he dye before it shall never be payd 36 H. 8. Dyer 59. One devised 20 l. to his Daughter to be payd at her marriage or 21 years of age and she dyed before marriage yet it shall be payd 7 Ed. 4. 3. and 18. 36 H. 6. 9. Cook 9 Rep. fol. 108. In an Action of Debt against an Administratrix who pleaded Statutes and further that she had not sufficient c. The Plaintiff replyed that for one of the Statutes a lesser sum was accepted in satisfaction and as to the other that it was for performance of Covenants and that none was broken and the Defendant demurred and adjudged for the Plaintiff and that the general averment of payment and acceptance and that the Statute was for performance of Covenants was good because the Plaintiff was a stranger thereto And this case was argued again by me for the Plaintiff and by Crook for the Defendant Saturday the 24 of May Pasch 15 Jacob. at which day Mountague Doderidge and Haughton did agree that for the first matter Iudgment ought to be given for the Plaintiff but as to the last Mountague held for the Defendant but the other two on the contrary And Doderidge and Haughton agreed that the Plea of the Defendant was naught because he said that a Condition was annexed to the Recognizance and did not say that it was upon condition and Mountague replyed not Vide Com. Browning and Beestons Case 21 Ed. 4. 49. 28 H. 6. 3. Hillar 12 Jacob. Robinson against Greves Rot. 744. IN an Action of Trespass for that the Defendant the 6 of May 12 Jac. the House and several Closes of the Plaintiff did break and enter c. ad damnum c. The Defendant pleaded Not guilty The Iury found that the said Tenements were Copyhold parcel of the Mannor of Ecclesfield grantable time out of minde by the Lord or his Steward by Copy in Fee in Tayl or for life or years according to the Will of the Lord and according to the Custom of the Mannor And that before the Trespass Thomas Shercliff was seised in fee at the will of the Lord according to the custom c. And that the first of January 14 Elizab. by the hands of Nicolas Shercliff and Thomas Jepson two of the Customary Tenants Gilbert Earl of Shrewsbury then and yet being Lord of the said Mannor out of Court and according to the Custom of the said Mannor did surrender to the use of Nicolas Stanniland and his Heirs which Surrender at the next Court 11 Janua 40 Elizab. by the hands of the said N. S. and Tho. J. was delivered into the said Court and there by the homage of the said Court was presented and by William West then Steward was accepted and entered in the Rolls of the said Court and that a Copy of the Surrender under the hand of the said Steward was delivered to the said Nicolas Stanniland which Copy was found verbatim viz. Ad hanc curiam compertum est per homagium quod Tho. S. sursum reddidit ad usum N. St. haeredibus suis but they said that the said N. St. was no otherwise admitted By force of which the said Nicolas entered and the 6 Decemb. 1 Jac. out of Court by the hands of Thomas Jepson and Richard Shercliff did surrender according to the custom of the Mannor to the use of the said N. St. for life the remainder to William Stanniland and his Heirs which Surrender at the Court of the Mannor held the 17 May 14 Jac. was delivered into Court by the hands of the said Thomas Jepson and Robert Shercliff and was presented by the homage at the said Court and was there accepted and entered in the Roll by the Sheriff and that a Copy of the said Surrender under the hand of the Steward was delivered to the said N. St. which Copy was found verbatim in the said words with the former and found that there was no other admittance The sixth of November 2 Jacob. Nicolas St. dyed Thomas Shercliff entered at the Court 6 Maii 12 Jacob. did surrender to the use of the Plaintiff for ten years and payd his Fine and was admitted c. whereby the Plaintiff did enter upon whom the Defendant by the commandment of William Stanniland did enter and made the Trespass c. And so prayed the Opinion of the Court. And I conceive that the Plaintiff ought to have Iudgment And in this case are two matters considerable First if this Presentment of the Lord and the entry into the Roll and the delivery of a Copy entred by the Steward be any admittance or not And I conceive that it is no admittance For an admittance is a ceremony requisite to make a Copyhold Estate and is so necessary that before admittance he to whose use the Surrender is made hath no Estate as in Bracton 2. cap. 8. Si ipse ad alium transferre voluerit prius illud restituet domino vel servienti si dominus praesens non fuerit de manibus illorum fiat translatio ad alium c. And before admittance this is no perfect assurance but onely begins then as in Peryams Case Cook 5
portion not payd then if the Defendant shall pay to the said Susan the said 400 l. within six weeks after the said first of May to such person to whom the said Elizabeth by the said Will ought to pay the same and shall procure good and sufficient discharge to the said Elizabeth of the said sum of and from all persons to whom the same shall be due that then all the said Obligations shall be voyd and delivered up to the Defendant cancelled and made voyd And the said Elizabeth did covenant that until manifest default was made in the premisses and the said Elizabeth shall be thereof damnified and upon reasonable request no satisfaction shall be given to her she will not take any advantage by reason of the said Obligation nor will prosecute any Suit against the Defendant or any other bound in the said Obligation And the Defendants said that the Plaintiffs nor any of them was not damnified by reason of the said Obligation in the Declaration or by reason of any of the said other Obligations and did aver the said Obligation in the Declaration and the said Obligation of 120 l. in the Indenture to be all one and that the said several days of payment limited by the Indenture nor any of them at the time of the Writ purchased were incurred Vpon which Plea the Plaintiffs demurred and the Defendant did joyn And I conceive that Iudgment ought to be given for the Plaintiffs for the Plea is utterly insufficient for divers causes And yet I do agree that although the Obligation be upon a condition yet is the Indenture a Defeasance thereof so that it is sufficient to the Defendant to perform the one or the other But the Indenture is of two parts 1. That if the Defendant shall pay to Elizabeth the daughter 500 l. and shall perform the other things mentioned in the Plea that all the Obligations shall be voyd and delivered up 2. The Plaintiff Elizabeth did covenant that until the Defendant should make default in the premisses and she should be damnified and upon request no satisfaction given to her she should not take any advantage of the Obligation nor shall prosecute any Suit against the Defendant or any other bound in the said Obligation And as to the first part I do agree that this is a good defeasance of the Obligation but the last clause is onely a Covenant and cannot be pleaded in bar of this Action brought upon this Obligation as in the 21 H. 7. 30. John de Pusetoes Case The said John and others were bound to T. who by Deed did grant to the said John that he should be quite discharged of the duty and if he be vexed or sued that the Bond shall be voyd which Case is there very largely argued but I conceive the better Opinion to be that the Bond is discharged because that the words are in effect as the words in the first part of this Indenture scil That if such act be made the Obligation shall be voyd But there Fineux said That if I grant to my Tenant for life that he shall not be impeachable for waste he shall not plead this in Bar but shall have an Action of Covenant thereupon And Brudnell put this case That if I grant to one against whom I have cause of Action that I will not sue him within a year this is not any suspension of the Action Vpon which case it is to be observed that I may sue and the other is put to his Action of Covenant And the Plea is first insufficient because he pleads that the Plaintiffs nor any of them were damnified by reason of the Bond in the Declaration or by reason of any of the aforesaid Writings obligatory in the said Indenture specified but he does not answer to the damnification by reason of the 500 l. to be payd to Elizabeth the daughter which is the principal matter to be done by the Defendant for the defeasance and in truth this Portion was due and not payd before this Suit begun The Defendant did aver that the several days of payment limited by the Indenture are not incurred and there is not any day limited for the payment of 500 l. and the truth was that it is payable at the time of the marriage of Elizabeth the daughter but this is not limited by the Indenture nor any time for the payment thereof and therefore this a verment is not good The Indenture of the Defeasance is if the Defendant shall pay the 500 l. or procure to the Plaintiff Elizabeth sufficent discharge for the same and shall provide fit maintenance for Elizabeth the daughter Whereupon I conceive that the Defendant ought to pay 500 l. and provide maintenance for the daughter or otherwise that he should procure a discharge from the Plaintiff Elizabeth and shall also provide maintenance for the daughter for her maintenance is as necessary if the mony be payd as it will be if the discharge be procured And the Defendant hath made no answer to the providing of maintenance Judgment And Michaelm 15 Jacob. Iudgment by all the Court was given for the Plaintiff Rot. 590. Trinit 16 Jacob. Margaret Evans against Wilkins IN an Action on the Case for that the Plaintiff the 12 September 15 Jacob. did retain the Defendant to be her Shepherd c. and that the Defendant in consideration of 6 d. to him payd by the Plaintiff and of 33 s. 4 d. of his Sallery to be payd to him for a year and in consideration that the Plaintiff did assume to pay the 33 s. 4 d. to the Defendant and to finde him meat drink and lodging for the said year and to permit the Defendant to have Pasture for twelve Sheep with the Sheep of the Plaintiff Did assume to serve the Plaintiff as a Shepherd for one year from Michaelmas next c. and to keep her Sheep To which the Plaintiff giving credit did not retain any other Shepherd and the Plaintiff did aver that she was ready to pay the Defendant the said 33 s. 4 d. and to provide him meat c. and to permit him to have Pasture for twelve Sheep with the Sheep of the Plaintiff yet the Defendant did not feed the Sheep of the Plaintiff although required the 4 Octob. 15 Jacob. whereby many of her Sheep dyed ad damnum 40 l. The Defendant pleaded the Statute of the 5 Elizab. whereby it is enacted That the Justices of Peace of every County or the greater part of them then resident in the County and also the Sheriff if it may be and every Major Bayly or other chief Officer of any City or Town Corporate in which there shall be any Justice of Peace within the limits of the said Town before the tenth of Iune next coming and afterwards shall yearly at every general Sessions first held and to be kept after Easter or any convenient time after Easter shall meet together and after such meeting shall call
infeoff another of all the Lands whereof my Father died seised in an Action agâ—inst me I ought to set forth the certainty of the Land whereof he died seised And although the Executor does represent the person of the Testator yet the Act of the Executor is not the Act of the Testator not like to the Case of an Attorney 32. Ed. 3. Bar 264. If one be bound to enfeoff another it is sufficient if the Attorney be ready to make the Feoffment and so in the 19. H. 6. the same Law to confesse an Action but when an Executor does an Aâ—â— for the Testâ—tor it is otherwise as if the Executor sell Land it must be so pleaded for a dead person cannot sell Land And afterwards the Plaintiff discontinued his Suit Hillar 13. Jac. Norris Plaintiff against Henry Baker and Elizabeth Baker Defendants IN an Action of Trespasse for that the Defendants the 28. Octob. 13. Jac. by force and armes c. upon one Thomas Davis and Nicholas James Servants and Workmen of the Plaintiff did make an assaâ—â—t and them there labouring in the service of the Plaintiff did wound c. whereby the Plaintiffs lost their Service to his damage of forty pounds c. The Defendants as to the forme and according did plead not guilty whereupon issue was joyned And as to the residue of the Trespasse they say that at the time of the Trespasse the said Henry was and yet is possessed of an ancient House with the appurtenances in Worcester for divers years to come the which house doth joyn to a void peice of land in Worcester against the South and that at the time wherein c. and also time out of mind there were ancient Windows or Lights in and upon the South-side of the aforesaid house against the said peice of land through which the light did enter into the said house and the said Henry did enjoy great and necessary Easements and Commodities by reason of the open Ayre and light shining and entring into the said house by reason of the said Windows and Lights aforesaid and the said Thomas Davis and Nicholas Jones maliciously plotting and intending to deprive the said Henry of all the Easement and commodity of the aforesaid Windows and Lights Et Messuagium illud horrida tenebritate obscurare the said day and year did intend to build a house upon the said peice of land and did there then erect divers peices of Timber for the building of the said house which house if it had been built the said Henry should have lost the said easements and commodities wherefore the said Henry and the other Defendant who was his Servant by his commandment the said time wherein c. being in the said house did hinder the said Thomas Davis and Nicholas Jones from building the said house and the Defendants with a Staff did thrust down the said peices of Timber wherewith the said Thomas Davis and Nicholas Jones would have built the said house and did thrust and put away the said Thomas Davis and Nicholas Jones least they should build the said new house Prout eis bene licuit which is the same Assault and Battery of the said Thomas Davis and Nicholas Jones whereof the Plaintiffs complain Vpon which Plea the Plaintiffs demurred in Law And I conceive the Iudgment ought to be given for the Plaintiff Because the Defendants have made no answer to the first matter of the Action which is the losing of the Service for it is not shewne throughout the Bar that the said Davis and Jones did make the building as Servants to the Plaintiff or by his commandment and 2. H. 6. 13. In a Trespasse for cutting of Trees where the Defendant pleaded that the place where c. was the Freehold of I. S. who let the same to the Defendant at Will and adjudged no plea by the Court unlesse he had said by which he entred and cut the Trees and so justified the Action 3. H. 6. 54. In a Trespasse for beating of his Tenant the Defendant said he was his Servant and the Issue was whether he was his Servant or not 31. H. 6. 12. B. 5. H. 7. 3. 20. H. 7. 4. and 20. H. 7. 5. A Master shall not have an Action for beating of his Servant unlesse he saies Per quod servitium amisit The cause of Iustification is because the Servants did endeavour to erect a Building which is not issuable There is no cause of Iustification for how can the Defendant know that the building will be to his hurt or nusance to him untill the building be erected and if it be to his nusance he may abate the same by Law The Plea is double for first they set forth that they had Lights c. and then they alledge that the new house was built for the word if is wanting and 33. H. 6. 26. In an Action on the Case the Writ was good Cum ipse habeat quoddam Cheminum ratione tenurae c. the Defendant levavit murum per quod querens Cheminum habere non potest c. It was holden by Prisoit that the Writ was not good by reason of the Repugnancy And this Case was argued again by Barcley for the Defendant and by me for the Plaintiff Judgment Tr. 14. Jac. And all the Court held the Plea in Bar to be insufficient for which Iudgment was given for the Plaintiff Rot. 256. Hillar 13. Jacob. Edward Smith for the King and himself against Stephen Bointon IN an Information because the Defendant between the twentieth of June 12. Jac. and the fourth of July next after at Westminster in the County of Middlesex did buy ingrosse and obtain into his hands by buying and contracting of divers persons unknown three hundred quarters of Barley of the value each quarter of twenty pounds a hundred quarters of Beans of the value of twenty pounds every quarter Ad revendendum contra formam statuti c. whereupon an Action accrued to the King and the Informer to have of the Defendant foure hundred pounds viz. the value of the Barley and Beans whereof the Informer prayed a moyety c. The Defendant as to the Ingrosment between the twenty second of May 13. Jac. and the said fourth of July next after pleaded not guilty And as to the Ingrosment between the said twentieth day of July 12. Jac. and the said twenty second of May next after The Defendant saith that before the exhibiting of the said Information sc the twenty second of May 13. Jac. one Robert Beadow did exhibite an Information in the Exchequer for the King and himself against the Defendant because the Defendant between the first of June last and the day of the said Information did ingrosse five hundred quarters of Wheat of price every quarter thirty pounds five hundred quarters of Barley of price every quarter twenty pounds five hundred quarters of Oates of price every quarter twenty shillings and five hundred quarters of Beans and Pease
defrauded for if no information be for the conversion within one year after or if the Convertor pay the penalty of 20 s. for the converting he may let it out to another And by pretence of the Defendants Councel he shall not be subject to penalty for the continuance But the Court agreed that he who made the conversion should be punished and so should every other occupyer of the Land who does not keep the Land in tillage Rot. 386. Michaelm 12 Jacob. Perryn against Audrey Barry IN a Writ of Error to reverse a Iudgment given in the Kings Bench for the said Audrey against the said Perryn in Debt upon a Bond of 100 l. made the 28 of April 5 Jacob. In which Action the said Perryn demanded Oyer of the said Bond and of the Condition which was That if the Defendant Iohn Perryn his Executors and Administrators should perform the Award of Thomas Clyff Roger Glover Robert Goodwin and Thomas Piborn Arbitrators as well for the said Perryn as the said Audrey Barry elected to Arbitrate of for and upon all and all manner of Actions cause and causes of Actions Suits Trespasses Debts Duties c. and all other demands whatsoever which between the said parties at any time until the date of the Obligation have been had moved or now depending so that the same Award c. of the said Arbitrators or any three of them of the premisses be made and given up in writing indented under their hands and seals on or before the last of May next that then the Obligation shall be voyd And the Defendant did plead that the said Arbitrators did not make any Award The Plaintiff did reply that the said Roger Glover Robert Goodwin and Thomas Piborn three of the said Arbitrators the 30 of May. fifth of King James did make their Award by writing indented That the Defendant should pay to the Plaintiff 57 l. viz. upon or before the 16 of June next 10 l. and the 29 of September next 17 l. and the 25 of Novemb. next 20 l. and the 25 of March next 10 l. And whereas the Defendant and Stephen Perryn were bound to the Plaintiff in 12 l. upon condition to pay 6 l. at certain days that the said Obligation should be to the Plaintiff in force as then it was and that she should have such benefit thereby as she might have had before and that the Plaintiff should acquit and save indemnified the Defendant from all Debts Duties and mony for which the Defendant with the Plaintiff was indebted or bound to Dingley Numan Clark Cater or any of them And that all Actions depending between the parties in any of the Kings Courts and all other Actions and causes of Action for any matter between them except the matters contained in the Arbitrement and the Obligation to perform the Award should cease c. And that if any controversie or doubt should happen between the parties for or about any word sentence or thing in the Arbitrement or of or touching the Award or any thing contained therein that the parties and their Executors shall perform such explanation and construction thereof as the said three Arbitrators should make in writing under their hands concerning the same And that the Plaintiff shall pay to George Write for drawing and ingrossing the said Arbitrement 6 s. 8 d. which Agreement the said three Arbitrators shall deliver to the parties the same day And although the Plaintiff did perform all yet the Defendant did not pay the 10 l. the 16 of June next And hereupon the Defendant demurred in Law and the Plaintiff joyned and Iudgment given for the Plaintiff whereupon the Defendant brought this Writ of Error And assigned the first Error because the submission was to four and Error 1 the Arbitrement was by three onely But all the Iustices and Barons did hold that the Agreement was well made notwithstanding for it shall be taken now to be a submission to four or any three of them and so was it agreed in the Kings Bench where this point hath been argued at the Bar oftentimes The second was that the Arbitrators did not make any Award for Error 2 the Bond of 12 l. in which the said Plaintiff and St. Perryn were bound to the now Defendant upon condition to pay 6 l. at certain days and the submission is conditional sc That the Award be made of all things c. and therefore they ought to have determined these matters For it may be that this was the principal cause why the Plaintiff did submit himself to the Award sc to be discharged of this Bond which perhaps was forfeited for not performing the condition with the penalty whereof he shall be now charged And although the Bond was made by the Plaintiff and another yet was it a cause of action depending between the Plaintiff and Defendant for she may sue him 2 R. 3. 18. b. If three men and another do refer themselves to an Arbitrement of all demands between them the Arbitrators may make an Award of all matters which the three had against the other joyntly and of each matter which every one of the three hath against the fourth and may award that every one of the three shall pay mony to the fourth Vide Comment 389. Chapmans Case 21 H. 7. 296. In debt by a woman as Executrix the Defendant said that I. S. her husband and the Defendant did refer themselves to Arbitrament who made an agreement and the husband dyed and the Court held that the debt of the woman as Executrix was extinct by this Arbitrement The clause that the now Defendant should acquit the Plaintiff of Error 3 all Debts wherein he was bound with the Defendant to Dingley c. is insufficient because there is no Christian name The breach is assigned for that the Defendant did not pay the 10 l. Error 4 upon the sixth day of June whereas the Award was that it should be payd upon or before the 16 day of June But all did agree that this was well assigned because that when it is alledged that it was not payd upon the 16 day it was not payd before the day The Arbitrators have awarded that the parties shall stand to their Error 5 Award for construction of the Arbitrement and of all things in the Award and of all matters concerning them for the future which is not in their power for all the Award ought to be made before the last of May. They award 6 s. 8 d. to be payd by Audrey to George Write for ingrossing Error 6 of the Award which is not within the submission 1. Because Write is a stranger 2. Because it is a thing agreed on after the submission Judgment And Hill 14 Jac. The Iudgment was affirmed and they agreed the last agreement to be void but that was not materiall for the Award was void only for that and good for the residue Rot. 100. Hillar 13 Jacob. Mande against French IN
for a year rendering forty shillings Rent at Michaelmas and before the Feast does release to the Lessee all Actions yet after the Feast he shall have an Action of Debt for non-payment of the forty shillings notwithstanding the Release And 40 of Ed. 3. 48. Hillary By such Release to the Conusor of a Statute-Merchant before the day of payment the Conusee shall be barred of his Action because that the Duty is always in demand yet if he release all his right in the Land it is no Bar 25 Assis 7. And Althams Case Cokes Rep. 153. By a Release of all Demands not onely all Demands but also all causes of Demands are released And there are two manners of Demands viz In Deed and in Law In Deed As in every Praecipe quod reddat there is an express Demand In Law As in every Entry in Land Distress for Rent taking and seising of goods and the like acts in Pais which may be done without words are Demands in Law And as a Release of Suits is more large and beneficial then a Release of Complaints or Actions so a Release of Demands is more large and beneficial then any of them for by that is released all those things that by the others are released and more for thereby all Freeholds and Inheritances are released as in 34 H. 8. Releases 90. 6. He who does release all Demands does exclude himself of all Entries Actions and Seisures And Littl. 170. By the Release of all Demands Warranty is released and yet that is Executory and the reason hereof is that by the Release of Demands all the means remedies and causes that any hath to Lands Tenements Goods or Chattels are extinct and by consequence the right and interest in all of them And in 40 Ed. 3. 22. It is debated there whether a Release of all Demands by the Lord to the Tenant to hold onely by Rent and Fealty shall bar the Lord to demand reasonable ayd to marry his Daughter but it was agreed there that such Release shall bar the Lord of his Rent for as it is there said that is always in demand And 13 R. 2. Avowry 89. One gives Land in Tayl to hold by Rent Homage and Fealty for all Services and Demands this does discharge the Tenant of Relief but 18 Ed. 3. 26. contrarium tenetur And 7 Ed. 2. Avowry 211. Suit at a Leet by reason of Residency is not discharged by a Feoffment to hold by Rent for all Services and Demands for this service is not in respect of the Land but of residency of the person And 14 H. 4. 2. Gilbert de Clare Earl of Glocester before the Statute of Quia Emptores Terrarum did give Land parcel of the Honor of Glocester to hold of him as of the Honor to hold by Homage Fealty and Rent for all Services and Demands And after long argument it was agreed and hereby the Lord was excluded to have a Fine for alienation which otherwise was due from every Tenant of the Honor. And as the Fine was discharged there by the Feoffment so it might have been by Release of all Demands And the whole Court agreed Judicium that by this Release of all Demands the Rent is released and so the Plaintiff ought to be barred and so Pasch 16 Jacob. Judgment was given accordingly Hillar 13 Jacob. Southern against How IN an Action on the Case for that the Defendant the first of April 5 Jacob. was possest de quibusdam Jocalibus artificialibus contrefectis Anglice artificial and counterfeit Iewels viz. two Carcanets one pair of Ear-rings one pair of Pendants and one Coronet as of his proper goods and the Defendant there and then knowing the said Iewels to be artificial and counterfeit and fraudulently intending to sell them for true and perfect Iewels there and then did deliver them to one William Sadock his servant to whom at that time the said Iewels were known to be counterfeit and artificial and did command the said William to transport the said Iewels beyond the Seas into Barbary where the Defendant well knew that the Plaintiff was residing and did further command the said William that he should conceal the counterfeitness and falsness of the said Iewels and that after his arrival he should repair to the Plaintiff and shew him the said Iewels for good and true Iewels and there require the Plaintiff to sell the said Iewels for good and true Iewels for the Defendant to the King of Barbary or to any other that would buy them and that he should receive a price for them as if they were good and true Iewels That the 20 of April 5 Jacob. the said William did sail from London to Barbary and there the 22 June 5 Jacob. arrived and did then repair to the Plaintiff and knowing the said Iewels to be artificial and counterfeit did shew them to the Plaintiff for good and true Iewels and there and then did require the Plaintiff to sell them for good and true Iewels to Mully Sydan then King of Barbary and there then did affirm to the Plaintiff that the said Iewels were worth in value 14400 Dunces of Barbary Mony amounting to 810 l. of English Mony And the Plaintiff not suspecting the said Iewels to be counterfeit but conceiving them to be good and true did receive them of the said William and afterwards scil the 22 of August 5 Jacob. did offer them to the said King of Barbary as good and true Iewels and there and then did procure the said King to buy the said Iewels not being of the value of 3000 Ounces of Barbary Mony amounting to 168 l. 15 s. English for 14400 Ounces of Barbary Mony amounting to 810 l. which mony the Plaintiff the 22 of August 5 Jacob. received of the said King for the said Iewels for the Defendant and did pay the said sum then there to the said William for the Defendant and the said William immediately after the receit thereof did secretly withdraw himself out of Barbary and did return into England to the Defendant with the said sum and the first of October 5 Jacob. did pay the same to the Defendant That the 30 of May 6 Jac. the said King perceiving the said Iewels to be counterfeit caused the Plaintiff to be arrested and imprisoned for them and retained him in prison three months and until the Plaintiff out of his proper goods did repay to the said King the said 14400 Ounces of Barbary Mony That the first of October 6 Jac. the Plaintiff gave notice to the Defendant of the repair of the said William to him and of all the premisses and requested him to pay to the Plaintiff the said sum which yet he hath not payd ad damnum 2000 Marks The Defendant pleaded Not guilty The Iury found that the first of April 5 Jac. the Defendant was possest of the said Iewels and knowing them to be artificial and counterfeit and intending fraudulently for good and true Iewels
anothers land hath nothing at all to do with the Land any more then a meer stranger but only to put therein his Cattel and to let them feed there with their mouths and it is not his own Common until his Cattel have fed there 14 H. 8. 10. The Owner of a Common cannot grant the Common to anothers use Et 27 H. 8. 12. A Praecipe does not lye of a Common for it is not my Common untill my Cattell have eaten of it and therefore that which another hath is not mine therefore I cannot have a Praecipe against him who hath not that which I demand and in the 22. Assise 48. and 12. H. 8. 2. If a man hath Common in another mans Soile and a stranger puts in his Cattell there the Commoner shall not have an Action of Trespasse for although he hath Common yet the Herbage doth not belong to him neither can a Commoner do any thing upon the Soile which tends to the melioration or improving of the Common as to cut Bushes Ferne or such things which do much impaire the Common neither can he make a Fence or Ditch to let out the water which spoiles the Common But if he be utterly disturbed of his Common he may have an Assise or a Quod permittat and if any damage or annoyance be made upon the Land whereby he loseth his Common he may have an Assise And as the Commoner may not meddle with the Soile so cannot he meddle with any thing arising out of the Land or that doth grow or is nourished by the same otherwise then to have his Cattell to feed there and therefore it is adjudged Mich. 5. Jac. that a Commoner cannot kill Conies there but may bring his Action on the Case But I agree that a Commoner may distrain Cattell Damage feasant because their being there is a damage not onely to the Owner but also to the Commoner and a Commoner may abate a Hedge or a Gate that hinders him from comming to his Common wherefore I conclude this first matter that the plea as to that is utterly insufficient by the Law if there were not a speciall custome alledged by the Defendant And therefore it is to be considered whether this prescription alledged by the Defendant to hunt and kill Conies there for preservation of his Common be good or no. And I conceive it is unreasonable and not good because it is to the prejudice of the Owner of the Soile without any consideration And it is unreasonable for two causes first because it is too generall for the Defendant may hunt and kill as many Conies as he will for he doth not claim to kill a certain number that do surcharge the Common but generally the Conies there Secondly as this plea is the Defendant makes himself his own Iudge to kill the Conies as often and when he pleases Also it is against Law for it is to the destruction of the Inheritance of another which no person can justifie by custome or prescription unlesse for the benefit of the Common-weal 13 H. 8. 16. It is Law to pull down a House if the next house to it be on fire and so the Suburbs of a Town may be pulled down in time of War and if Enemies be on the Coast it is good Law to come upon another mans Land and make Bulwarks there for the publick good is preferred before any mans private benefit But when it is only for the private benefit of a man it is otherwise 43. Ed. 3. a. The Abbot said that he was Lord of the Town of A. and did prescribe that when the Tenant ceased for two yeares that he might enter untill he be satisfied his arreares And it was held by the Court to be an ill custome to put a man out of his Inheritance yet is that more reasonable then this case for the time when the Lord shall enter is certaine and the time that he shall hold the Land is also certaine and 19. Elizab. Dyer 357. A custome that all Tythes let or granted for more then six yeares of Land in such a Towne was held void by the Court because it is contrary to reason and to the liberty of the estate of him that hath a Fee And 9 H. 6. 44. B. Custome in a Leet that if the petit Iury do make a false Presentment and this found by the grand Inquest they shall be amended and it was held by the Court to be no good custome and against common right but if the custome were that if the petit Iury concealed any thing they ought to present them to be amerced this may be a custome And to prove that Conies are part of the Inheritance see Coke Rep. 7. in the case of Swans But it may be objected that this usage may have a legall beginning viz. That it was so agreed at the time of the grant or creation of the Common I answer That then it ought to have been specially pleaded for else it shall not be so intended as it is proved in the 35 H. 6. 28. Simon Eyres case where a Custome was pleaded in London that if the goods of any man be pawned to a Citizen for a debt due to him that he may detain them untill he be payed his debt and it was urged because that it may be good to bind the Debtor because it may be intended it began by his own grant but it was ruled that it shall not be so intended unlesse it be specially alledged And that a man shall not be Iudge in his own case is proved by 22. Edw. 5. 13. B. The Defendant pleaded that at another time he accounted to the Plaintiff in the presence of A. B. was found in arrear wherefore he was committed to prison there it was adjudged that the party himself could not commit him to Prison and that an Action of false Imprisonment did lie against the Plaintiff And Cook R. 8. Dr. Bonhams Case And in the 5 H. 7. 9. B. If one prescribes that if any Cattel be taken upon his Land damage feasant that he may distreyn them and put them into the Pownd until amends be made according to his own will this was held not good because then he should be his own Iudg which is against reason And in the 19 Edw. 2. gard 127. A Custom was alledged in Ipswich that when an Infant could count and measure that he should be out of Ward and holden to be voyd 13 Edw. the 3. where a Custom was alledged that when one could count 12 d. and measure a yard of cloth he may alien his Land and did aver that the Demandant was of such age but because he did not alledg the age in certain it was adjudged against the Demandant And Dyer 91. a. One grants to another all his Trees which may be reasonably spared agreed that this was a voyd Grant for the incertainty And in the 20 H. 7 8. B. If Cestuy que use of a Mannor does
held and have accustomed to have in the aforesaid two hundred acres of pasture and a hundred of wood parcel of the aforesaid Tenements called the Mannor of Colwick belonging to the said Mannor of Colwick enclosing ditching and hedging at their will and pleasure with all liberties priviledges and Franchises to the said Park belonging and in the said Park from the time aforesaid have used to have and to keep Deer and from time to time to constitute and appoint a Keeper of the said Deer in the said Park who from the aforesaid time have used to keep the same ac ad venandum fugandum occidendum capiendum asportandum omnes omnimodas damas in eodem parco de tempore in tempus existentes ita quod nullus forestarius Domini Regis Forestae praedictae nec aliquae aliae personae quaecunque intromittantur ad venandum fugandum in parco praedicto sine licentia praedicti Johannis avi And set forth that the said John the Grandfather died seised whereby the said Mannor c. descended to Sir John Byron his Son And that Hillary 3. Jacobi a Fine was levied between Sir Peter Leigh and other Plaintiffs and Sir John Byron the son Defendant of the said Tenements to the use of the said Sir John for life the remainder to the Defendant in tail And that the seventeenth of December 10. Jac. did let the Premisses to the Defendant for eighty years if the Lessee should so long live wherby the Defendant the 26. Mar 11. Jac was and is thereof possessed did aver that the Mannor of Colwick in the information and the said Messuage a hundred acres of Land two hundred of Meadow three hundred of Pasture and a hundred of Wood to be the same and did also aver the life of the Lessor The Attorney Generall for the King did reply that before the information sc 9 Octobr. 19. Jacobi and long before and continuing after untill the exhibiting of this information the Defendant the Park and Tenements aforesaid with Ditches Hedges and Fences had so sleightly inclosed that the Kings Deer of the aforesaid Forest for defect of sufficient inclosing of the Park and Tenements aforesaid through the default of the Defendant did enter and the Deer of the King into the said Park and Tenements aforesaid for the cause aforesaid entring the Defendant did very unjustly kill the said Deer in the said Park and Tenements aforesaid The Defendant did maintain his Bar and traversed without that that the Defendant the Park and Tenements aforesaid with such sleight Fences Hedges and Ditches inclosed did keep the same Quod Damae Regis de forresta praedicta de tempore in tempus intra tempus praedictum in parcum tenementa praedicta pro defectu sufficientis inclusurae parci tenementorum praedictorum in defectu defen intraverunt absque hoc quod Defendens Damas Regis de forresta praedicta in parco tenementis praedictis pro defectu sufficientis inclusurae parci tenementorum praedictorum in defectu defendentis minus juste interfecit modo forma prout c. Whereupon the Attorney demurred And I conceive that Iudgment ought to be given for the King First Because the plea in Bar and the Rejoynder made by the Defendant is altogether insufficient for divers causes Secondly As to matter in Law And as to the first The Quo Warranto doth suppose that the Defendant did use the liberties there mentioned within the Mannor of Colwick being within the meets and bounds of the Forest of Sherwood and within the Reguards of the said Forest and the Defendant did know this to be within the meets and bounds of the said Forest but does not answer whether it be within the Reguards or not for it may be within the meets and bounds of the said Forest and yet not within the Reguards as if the Mannor were disforested by Carta forestae because it was a Subjects Mannor and not the Kings yet it remains within the meets and bounds of the said Forest but not within the Reguards for now by the disforesting it is made purlue and not subject to the Reguards and Lawes of the Forest as to the Owner of the Mannor Vide Carta Foresta fol. 1. and yet notwithstanding this Statute if the King had granted this Mannor to be free of the Reguards or out of the Reguards yet is it still within the meets and bounds of the said Forest Secondly The Dendant makes Title to the liberties whereof Sir John Byron his Grandfather was seised in Fee viz. of a Messuage a hundred acres of land two hundred of Meadow three hundred of Pasture and a hundred of Wood in Colwick now and time out of mind called the Mannor of Colwick Quodque ille omnes illi Quorum statum idem Johannes habuit in tenementis praedictis habuerunt tenuerunt habere consueverunt in praedictis 200. acris pasturae 100. acris bosci parcellis praedictorum tenementorum vocat mannerium de Colwick praedictum parcum tenementa praedicta vocat mannerium de Colwcik spectant pertinent c. So that the Defendant doth not prescribe but doth alledge only that Sir John Byron and those whose estate he hath have used to have a Park the which is no Title to the Park for that ought to be time out of mind Thirdly The Defendant doth claim to have a Park in the aforesaid two hundred acres of pasture and a hundred acres of wood whereas there is no speaking of two hundred acres of pasture before and therefore he ought to have said in two hundred acres of pasture parcell of the said three hundred acres Fourthly The Defendant doth not answer to the killing of the Kings Deer of the Forest but doth only justifie the killing of all Deer time out of mind being in the said Park Fifthly The Rejoynder is a manifest departure from the Bar for in the Bar he claimeth to have a Park ditched and hedged Per voluntatem eorum inclusum so that by this pretence he may keep the Park with such low Hedges as he will and yet in his Rejoynder he doth traverse absque hoc that he kept the Park adeo parvis sepibus Fossatis quod Damae Regis de foresta praedicta in parcum praedictum pro defectu inclusurae intraverunt absque hoc c. So that the Defendant by his Rejoynder doth make an Issue upon that which he doth justifie in his Bar and doth upon the matter deny in his Rejoynder the matter alledged by him in his Bar. And as to the matter in Law I conceive that the Defendant cannot prescribe to have a Park in such manner as he pretendeth for that such prescription is quite contrary to the nature of his Royall Franchise of his Forest and is to the destruction of it for a Forest is a Royall Franchise so that regularly none can have it but the King as it was adjudged in this Court in a Quo Warranto
a County of it self but because it was made a County since the Teste of the Writ the Writ was adjudged to be good 3. These Ter-tenants are estopped to plead Non-tenure because that they with the residue at first did plead that John Chatterton was Tenant of parcel of the Land by which Plea they have taken upon themselves to be Tenants of the Land and therefore they cannot afterwards plead Non-tenure 41 Ed. 3. 4. In a Praecipe quod reddat against I. S. who pleaded to the Writ and the Writ abated whereupon the Writ did abate and a new Writ brought for Jornies Accompts against I. S. he shall not plead Ioyntenancy with the other because he hath admitted himself sole Tenant by the first Writ 33 H. 6. 3. In a Formedon against the Husband who pleaded Ioyntenancy with his wife for which the writ a bated and a new writ was purchased against the husband and wife who pleaded non-tenure and adjudged a good plea for the benefit of the wife but if the last writ had been against the husband only he could not have pleaded non-tenure 22 H. 6. 54. B. In a Praecipe quod reddat the Tenant pleaded Non-tenure the Demandant said that before he brought another Writ against the Tenant and I. S. who made default for which a Grand Cape was awarded upon which I. S. made default and the now Tenant said that he was sole Tenant and waged his Law of Non-summons which the Demandant did acknowledge whereupon the writ abated and this Writ purchased by Jornies Accounts and there it is argued if he shall have advantage of this because the first Writ did abate by his own default but it was agreed that if he could have such advantage the Tenant shall be estopped to plead Non-tenure and adjudged that the Tenant shall answer 42 Ed. 3. 16. In a Praecipe quod reddat one took the severall Tenancy on his part and the other of the other part and they were estopped because that a former proces was against them and others and they took the entire Tenancy upon them without that that the others had any thing and did gage their Law of Non-summons wherefore the first writ did abate and this writ purchased by Journies Accounts And so in our Case when all the Tenants have pleaded that I. C. was Tenant of parcell not named in the returne they have taken the Tenancy upon them and therefore they cannot afterwards plead Non-tenure And now the Writ being maintainable notwithstanding these exceptions Part. 2 it is to be considered whether there be any error in the Recovery or not And I conceive clearly that the appearance of the Wife within age by Attorney is Error for by the Rule of the Common Law in every Praecipe quod reddat whereby Land is demanded if the Tenant appear he ought to appear either in person or by one lawfully authorized by him and that is the reason that if Iudgment be given against one upon an appearance by the Attorney where the Attorney had no Warrant to appear that this is Error untill it be remedied in case where a Verdict is past by the Statute of 32 of H. 8. of Repleader but if the Iudgment be given upon default or demurrer or upon a Verdict and no Warranty by him who recovered this is not Warranted by the Statute Dyer 93. 20 Eliz. Dyer 363. and the reason is because that the Land or thing in demand is lost or gained by one who had no Warranty and then the Rule of Law is that an Infant shall not appeare by Attorney and 1 H. 5. 6. adjudged that an Infant cannot be Attorney for another and so therefore it is there said that he cannot appear by an Attorney 22 H. 6. 31. b. There by Newton if an Infant sue by an Attorney it is Error And the Law in this case stands with great reason for the Warrant of Attorney is made by the Infant which although it be sufficient when it is of full age yet it shall be dangerous to permit Infants to lose their Land by their Attorney while they have not discretion enough to choose such who shall be faithfull to them and therefore the Law hath made better provision for them to wit that they shall appear by their Gardian admitted and allowed by the Court so that in regard of the imbecility of the Infant the Court makes choyce of a sufficient trusty person to plead and defend their cause Nat. Br. 27 H. 1. an Infant shall sue by his next friend but if he be Defendant in any Action he shall make defence by his Guardian and not by his next of kin and the Court does assigne a Guardian for an Infant who is Defendant and that is commonly one of the Officers of the Court and in 22 H. 6. 31. where Hungerford and his Wife brought an Action of Trespasse for taking of their Villain being in their Service The Defendant pleaded that he was free c. and as to the losing of the Service that he was not retained and found for the Plaintiff and severall damages viz. for the taking of nine and twenty pounds and for the losing of the Service twenty shillings And it was argued neither Iudgment should be entred because the Retainer was not found And after Markham moved that the Plaintiffs being within age did appear by their Attorney and did declare that all the proces continued by the Attorney whereas it ought to have been by their Guardian so that all was Error And Newton said that if it were so there was good reason to have a Writ of Error and after the Plaintiffs released the twenty shillings and had Iudgment of the other So that an Attorney being alwaies made by the party ought to be therefore made by one of ability to give such Authority which ability cannot be in an Infant for all Authorities made by an Infant â—re utterly void And that the appearance of an Infant by Attorney in any Action is Error does appear by the said Book if the 22 H. 6. 31. 9 Eliz. Dyer 262. b. Object But it may be objected that the Husband in this case is of full age and therefore he may make an Attorney for himself and his Wife Answer But I answer that the Law is not so for the Rule of Law is that the Husband cannot give away or lose the Inheritants of his Wife but it must be given or lost by her her self and by her own act and therefore if the Inheritance in this case being to the Wife she is the principle and only to be taken notice of and she ought to appear in such manner as the Law hath appointed in regard of her nonage 14 Ed. 3. Age 88. In a Cessavit against the Husband and Wife the Husband did appear by an Attorney and the Wife by her Guardian and upon suggestion that she was of full age the Guardian was hidden to bring her into Court to see whether she were
cannot be First because that the Land devised to them is onely a Chamber and a mansion of little value and that is to repair the Bridg and that is a work of such charge that no surplussage can be intended Secondly The clause is Id quod clarum fuerit ultra solutionem reparationem c. which are the very words in the clause used for the disposing of the residue to R. for the time and cannot be referred to the Devise of the Wardens of the Bridge because that the things devised to them are apparently to be for the reparation only and no payment is limited out of it but the Tenement out of which the Stipend is to be payd is first charged with this payment and then with the reparation of the Tenement and then with the Ornaments and Books for the Church And afterwards this Case was argued by Coventrey the Kings Sollicitor for the Plaintiff and by S. Chibborne for the Defendant And Mich. 16. Jac. The Barons viz. Tanfeild Bromley and Denham did openly declare their opinion that the Land was not demised to the Parson by this Will and thereupon they commanded Iudgment to be entred for the Defendant which was entred accordingly Trinit 15 Jacob. John Adams against Roger James Knight and others IN a Replevin for taking of twelve Cowes and two Calves the twenty fourth of May the 14. of King James at Upminster in a place called Nelfeild alias Newfeild ad damnum 10 l. The Defendants did justifie the taking c. as Bayliffs of Thomas James and Moily Deale for that the place contained twenâ—â— acres of Pasture And that William Latham was seised in Fee of the Mannor of Upminster whereof the said twenty acres are parcell and the twenty fifth Maii 13 Eliz. devised the same to George Wiseman excepting one Close of Land or Pasture called Crouckfeild containing by estimation fifty acres and a parcell of a Close called Ecrowchfeild containing by estimation sixty acres and all Woods and Frees and Profits of Court Leets Waifes Estrayes Escheats Hermots Reliefs Goods and Chattels of Felons and Fugitives Deodands and Treasure Trove Habendum from Michaelm 1576. for sixty one years rendring forty pounds Rent at the Annunciation and Michaelmas The first of Octob. 1576. George Wiseman entred The twentieth of August 35 Eliz. William Latham by Deed inroled for the consideration of two thousand pounds did bargain and sell the Mannor to Roger James Father of the Defendant Roger in Fee and the 15 Decemb. 39 Eliz. Roger James the Bargaines did devise the third part of the Mannor to John his Son after whose death John was seised of the third part in Fee The seventh of August 11 Jacob. John James by Indenture for a thousand pounds paid by Thomas Fryth did bargain and sell to the said Thomas Fryth and Moyle Deale the said Reversion of the said third part Habendum from the said seventh of August for a hundred years ex intentione that they should grant or assign the said term to Thomas Fryth or his Assignes upon condition that he should pay a thousand pounds to the said Roger James viz. five hundred pounds the seventeenth of August 1614. and five hundred pounds the seventeenth of Febr. next after And because sixty pounds thirteen shillings foure pence was behind to the said Thomas James and Moyle Deale for halfe a yeare ending at Mich. 12 Jac. they did well justifie the taking c. The Plaintiff said that after the seventh of August Bar. 11 Jac. and before the said Mich. 12 Jac. viz. the ninth of August the 11 Jac. the said Thomas James and Moyle Deale did bargain and sell to the said Thomas Fryth all their Estate in the said third part whereby he was and yet is possessed Replication The Avowants replyed that the Bargain and Sale was upon Condition to pay the said thousand pounds to the said Roger James at the said days of payment and that Thomas Fryth did not pay the said five hundred pounds the seventeenth of August 1614. Rejoynder The Plaintiff rejoyned that after the said ninth of August 11 Jac. scil 10. August 11 Jac. the said John James was seised in Fee of the Reversion of the third part expectant upon the estate of the said George Wiseman And that the tenth of August 11 Jacob. John James by Indenture inroled did bargain and sell the said Reversion to the said Thomas Fryth and his heires That the seventeenth of August 11 Jac. John James by Indenture dated the aforesaid seventh of August 11 Jac. fâ—r a thousand pounds did bargain and sell the said third part to the said Thomas James and Moyle Deale Habendum from the said seventh of August 11 Jac. for a hundred years and that they after scil the aforesaid seventeenth of August 11 Jac. did bargain and sell to the said Thomas Fryth upon condition before expressed Absque hoc that the said John James did bargain and sell to the said Thomas James and Moyle Deale the said Reversion before the said tenth of August 11 Jac. and absque hoc that the said Thomas James and Moyle Deale before the said tenth of August 11 Jac. did bargain and grant the said Reversion to the said Thomas Fryth on condition as aforesaid Vpon which the Avowants demurred and shewed for cause that this is a departure from the Bar and that the said Rejoynder is in it self repugnant And I conceive that Iudgment ought to be given for the Plaintiff in the Replevin for that the Conusance is utterly insufficient for three causes 1. The Defendants make Conusance as Bayliffs to Thomas James and Moyle Deale and do endeavour to entitle themselves to a third part of the Reversion and Rent upon the Lease to Wiseman by the Devise of Roger James and it doth not appear in all the Conusance that Roger James was dead before the Grant made by John James to the said Thomas James and Deale for it is not set forth that he died but only by implication scil the bargain and sale by Latham is pleaded to Roger James lately dead which doth refer to the time of the plea which was long after the Grant to Thomas James and Deale and after the Rent due and the taking of the Distresse then it is alledged that after the death of Roger James the Devisor John James entred which is not sufficient because it is not alledged in fact that he dyed or when he diâ— dye And all the Court agreed the Avowry insufficient as to this exception Secondly the bargain and sale of the Reversion by John James to the said Thomas James and Moyle Deale is pleaded to be made the seventh of August 11 Jac. Habendum from the aforesaid seventh of August for a hundred years whereby the day it self is excluded and so the Grant is to take effect in the future which cannot be by the Rules of Law as in Bucklers Case 2. Rep. where Buckler Tenant for life in Mich. Term 20 Eliz. made
delivery of the possession was made or not and if it were made by the Attorneys of the Bargainees that in Law shall be taken to be the act of themselves and so shall be pleaded and so was it adjudged in this Court Hillar 37 Eliz. in Jordans Case Vide Dyer 354. Object But it may be objected That Hawkins had notice of the Bargain and Sale and therefore the Defendant shall forfeit the Obligation as in Mallories 5 Rep. and Francis Case 8 Rep. 92. in an Entry on condition Answer I answer That the Defendant hath bound himself by the Obligation that Hawkins should deliver the possession to his Assigns and therefore he must take notice thereof at his peril as in 18 Ed. 4. 24. An Obligation upon condition that the Defendant should account before an Auditor to be assigned when he should be required and to pay the Arrearages and it was pleaded that he did account before such an Auditor assigned by the Plaintiff and was ready to pay the Arrearages if the Auditor would give notice c. and it was held insufficient for he ought to take notice at his peril also it is pleaded and found that Henry Powle as Assignee of the Plaintiff did make the request and if notice had been material the Defendant ought to have pleaded that he had no notice but by his Plea notice is implyed Judgment And after Iudgment was given for the Plaintiff by all the Court. Rot. 459. Michaelm 15 Jacob. Agard against Wilde and others IN an Action on the Case for that the Plaintiff is and was of good name and fame and yet the Defendants maliciously intending to cause the Plaintiff to be reputed a Common Barretor the 27 of November the 14 Jacob. did falsly and maliciously procure the Plaintiff to be indicted in this Court that he was a Common Barretor and a Disturber of the Peace at Edmonton in the County of Middlesex ad communem disturbationem inquietationem omnium inhabitantium ibidem To which Indictment the Plaintiff Jovis post Octab. Hillar 14 Jac. did plead Not guilty whereupon issue c. and the now Plaintiff was acquitted by Verdict and Iudgment to his damage of 500 l. c. The said John Wilde said That at the time of the Indictment he and William Smith were impannelled in the great Inquest for the said County and then in this Court were sworn to inquire upon their oaths of all Felonies Trespasses and misdemeanors done within the said County and so being sworn having evidence upon oath of good and loyal men given to the said Defendant and the rest of his Fellow-Iurors The said John Wilde and the other Iurors there and then upon their oaths for the Indictment mentioned in the Declaration did indict the Plaintiff for the said Offence mentioned in the said Declaration as they might very well do Vpon which Plea the Plaintiff demurred in Law And I conceive that Iudgment ought to be given against the Plaintiff for in as much as the Defendant was sworn of the Inquest and he and the other Iurors upon good evidence did indict the Plaintiff it cannot be presumed that he did this on malice but it was done in zeal to Iustice by reason of his oath and although it be true that he and the other Defendants did procure the Plaintiff to be indicted of malice without just cause yet now the oath of the Defendant hath discharged himself of the precedent wrong as may be proved by many Books 21 Edw. 3. 17. a. In a Conspiracy for indicting the Plaintiff of Felony the Defendant pleaded that he was sworn of the Inquest to enquire at the Leet of the Lord Zouch and that he and the rest of the Iury did indict the Plaintiff upon their oath and there Thorp said That Conspirators are always in fault and when one is of the Inquest and sworn to speak the truth that which he saith then is upon his oath and not of Conspiracy and there is no reason to accuse one of Conspiracy where he does nothing 7 H. 4. 31. In a Conspiracy to procure the Plaintiff to be indicted of a Trespass the Defendant said That they were impannelled for the King before the Iustices of Peace in the County of Norfolk and that which they did was upon their oaths Iudgment c. The Plaintiff replyed that there was no such Record and because the Defendants failed of the Record for two days Iudgment was given for the Plaintiff 8 H. 4. 6. The Defendants pleaded that they were indicted the Plaintiff replyed that they procured the Sheriff to return them Gascoigne There is no question but that the Iurors shall be excused of Conspiracy by reason of their oaths Vide 20 H. 6. 5. and 19 H. 6. 19. 4 H. 6. 23. And Nat. Brevium 115. C. and D. it is put for a rule that a Writ of Conspiracy will not lie against the Indictors themselves and if Iurors be sworn to enquire c. and after some of them be discharged by the Iustices they shall not be punished for any such matter because it was when they were sworn but if they conspire afterwards they may be charged with a Conspiracy And Stamford 173. if after the Conspiracy the Conspirators are sworn on the Inquest to enquire c. and they with the others of the Iury do indict him against whom they do conspire no Writ of Conspiracy will lie against them because such thing cannot be intended false or malicious because they do it on their oaths and that with others besides themselves The same Law where after the Conspirators are sworn and have spoken with their companions they are discharged by the Iustices yet by reason that they were once sworn and the Conspiracy therefore discharged And Old Book of Entr. 122. a. In a Writ of Conspiracy to procure the Plaintiff to be indicted of Felony one of the Defendants pleaded Not guilty and the other that he was one of the Indictors in the same manner as our Plea is without any Travers and the Plaintiff replyed nul tiel Record upon which they were at issue c. and in the same Book are four other presidents in all which the same Bars are pleaded And there is also another president where the same Bar is pleaded to which the Plaintiff replyed that the Defendant after the conspiracy of his Covin did procure the Sheriff to impannel and return him to be one of the Iury to the intent that he should indict the Plaintiff Also this Indictment is insufficient in other respects 1. The conclusion is ad communem disturbationem inquietatem omnium inhabitantium ibidem the which word ibidem does refer onely to Edmonton and so there is no common nusance but particularly to them of that Town 2. There is no place alledged where he was a common Barretor 3. The Indictment is that he was a common Barretor ita quod verisimilis fuit facere homicidium lites discordia alia gravamina
d. imposed the third of December the same year by the Master and Wardens and nine Assistants All which sums do amount to 6 l. 13 s. 4 d. That the sixth of December the 15 Jacob. the Plaintiff had notice of the said sums so imposed and although he thereupon payd 19 s. parcel thereof yet he did refuse to pay the residue which refusal the 16 of December was duly proved before the said Master and Wardens wherefore the 16 of December 15 Jacob. the Master Wardens and Assistants taking with them John Sowland a Serjeant of the Mace did take the said ten Hides in the said City in the name of a Distress and took them away detained them for thirty days after the said Distress and because the Plaintiff did not pay the residue of the said 6 l. 13 s. 4 d. nor agreed for the same the said Master and Wardens and T. B. C. G. M. A. T. K. J. G. M. B. K. J. W. T. and R. T. being the major part of the Assistants after the said thirty days viz. 17 Jan. 15 Jacob. at the said City did cause the said Hides to be appraised by the oaths of R. S. c. six approved men of the said City who appraised them at 7 l. and the said Defendants and Thomas Payn and the major part of the said Assistants did sell them for 7 l. and they said that the surplusage amounted to 25 s. 8 d. and no more which the said William and Thomas Payn with the assent of the Master and greater part of the Assistants before the Suit to wit the seventh of January in the same year at the said City did offer to pay to the Plaintiff but he refused to accept thereof Absque hoc that the Defendants are guilty at Tiverton or any other place out of the said City of Exeter Vpon which Plea the Plaintiff demurred And I conceive that Iudgment ought to be given for the Plaintiff And herein I will not stand at this time to argue whether the Custom will warrant this By-law because there hath been a resolution in the Case in the 8 Rep. fol. 125. for London onely I observe that the Customs of London are confirmed by Act of Parliament but so are not the Customs of Exeter But admitting that the Custom will warrant this By-law to restrain a legal Trade or Art within the said City yet I conceive this By-law is utterly voyd for three causes and if it were good yet have not the Defendants pursued the same in taking and selling of the goods and that for two causes And as to the first the Defendants have exceeded their Custom in the extent of this By-law as to the place for the Society of the Art is alledged to be within the City of Exeter and then they alledg the Custom to be That they have used to make By-laws for the better Government and profit of the said City so that all the Custom is confirmed to the City but the By-law does exceed this for it is That none shall make sell or offer to sell any Shooes c. within the City or the County of Exon the which is not warranted by the Custom as in 5 Rep. Chamberlain of London's Case it was ordained That if any Citizen or stranger should send any Cloth to sell within the City before it shall be brought to Blackwell-Hall to be viewed and searched this is resolved to be good although it do binde a stranger but the reason thereof is given because the offence is committed within the City whereupon I observe that they can make no Order to extend without the City This By-law does exceed their power in the things prohibited and that in two things First That none shall make any Boots Shooes c. within the City or County whereby every man is restrained to make such things for his own use or for his Master or Family and such restraint is clearly against Law and Reason for although that Companies of Trades in Cities and Towns are allowed by the Law yet they cannot by any Custom restrain a man from making any thing pertaining to their Art for his private use and therefore if this By-law had been That none should use the Art of a Shoomaker within the City this had been good but to restrain any that he may not make Shooes for himself within the City this is voyd Vide Cooks 8 Rep. 129. Wagons Case where it was resolved That he might make Candles for his own use and so every one may bake and brew for their own use Furthermore the Defendants have not alledged any Custom That none shall make any Shooes c. within the City c. except those of the Society but onely that they may make By-laws for the good government and profit of the Society of the Art and the making of Shooes for ones private use is nothing concerning their Society and this is proved by the resolution in the said Case and by the Statute of the fifth of Elizab. That none shall use any Art in which he hath not been educated as Apprentice for seven years yet it is lawful for any to bake or brew or to make any manufacture for his private use without any offence to the Statute So Cooks 8 Rep. 125. Sir George Farmers Case He as Lord of the Mannor of Torcester did prescribe to have a Bakehouse and no other Baker should sell bread there this was a good Custom but to restrain any from baking for himself cannot be a good Custom And the Case of the Taylors of Ipswich 11 Rep. fol. 55. Order That none should use the Trade of a Taylor until he be presented to the Master and Wardens and allowed by them yet one may make Clothes for his Master and Family in case the said constitution were good This By-law does restrain other persons to use their Arts for it is That none shall do any thing pertaining to the Art of Shoomakers and it is apparent that many things do pertain to the Art of a Shoomaker which are to be done by other Artificers for all things belong to the Art which of necessity must be used with the Art and without which the Art cannot be used as Leather which is to be made by the Tanner Lasts which are to be made by the Last-maker Auls by the Smith Threed and divers other things and all these by this By-law are prohibited not onely to be sold but also to be made by any not being of their Society The penalty imposed by this By-law is not warranted by the Law nor by their Custom for that ought to be reasonable and ought to be exprest to the end that the Court may judg whether it be reasonable or not and therefore it is resolved in Wagons Case That the Pain ought to be reasonable 1. In respect of the manner thereof and therefore it ought not to be by imprisonment for that is against Magna Charta cap. 29. as it was adjudged in Clarks Case