were these viz. Thou usest me now as thy Wife did when she stole my goods Mich. 11. Iacobi in the Common-Pleas 332. ROES and GLOVE 's Case AN action of Debt was brought upon a Bond in Mich. Term 9 Jac and in Hillary Term after the parties were at issue upon the Statute of Usurie and it was found against the Defendant Afterwards Ter. Trin. a Writ of Error was brought retornable Mich. 10. Jacobi in which Term no Errors were assigned And afterwards in Hillary Term following two Errors were assigned the one That there was no such Statute as the Statute of 37 H. 8. of Usurie which was against what he had before confessed by his Plea the second Error was That whereas J. S. of Exeter was retorned of the Jury it was assigned for Error that J. S. of another place was sworn upon the Inquest and in this Case the Court advised the Defendant in the Writ of Error to plead In nullo erratum est By which the Court did seem to incline that they were no Errors Mich. 11. Iacobi in the Common-Pleas 333. BRADLEY and JONES Case IN an action upon the Case the case was That the Defendant did exhibite Articles against the Plaintiff in the Chancery before Dr. Cary and there swore the Articles and afterwards he sued in the Kings Bench and had Process out of that Court upon the Articles sworn in Chancery and for this an action upon the Case was brought and it was adjudged that the action would lie The articles exhibited in the Chancery were That the Plaintiff being an Attorney at Law was a Mainteinor of Juries and Causes and a Barretor and the Defendant prayed the Peace against him in the Kings Bench. And in this Case it was resolved 1. That a man might pray the Peace or Good Behaviour of any other man in any of the Kings Courts but then it must be done in due form of Law and if he do it so no action upon the Case will lie as it was resolved 27 Eliz. in Cutler and Dixons case in the Kings Bench. But it was agreed that if a man sueth in a Court which hath not jurisdiction of the Cause an action upon the Cause will lie but not where the Court hath jurisdiction of the Cause 2. It was resolved That the action did lie in the Case at Bar because he did exhibite the articles in Chancery and did not pursue them there For when he had sworn the articles in the Chancery he could not have a Supplicavit out of the Kings Bench and the Oath and Affidavit in the Chancery doth remain as a Scandal upon Record And Hobart Chief Justice said That every Court ought to intermeddle with their own proper causes and that two Courts are not to joyn in one punishment for punishment is not to be by parcels And he said That if a man claimeth right to the Land of another he is not punishable for it but if he make title vnto a Stranger then he shall be punished for every one ought to meddle with his own business 3. It was resolved That when a thing doth concern the Commonwealth the same doth concern every one in particular And so it is lawful for any man to require the Good behaviour of another for the publique good Interest etenim reipublicae ut maleficia punientur 4. It was resolved that the action did lie because the Defendant made the articles in Chancery but a colour of the Good Behaviour and although that the Kings Bench might grant the Good Behaviour without any articles preferred yet when first they begin in another Court they ought to follow the cause there And Hobart the Chief Justice in this case said that an Attorney may not labour Jurors in the behalf of his Client for that is Imbracery Mich. 11. Iacobi in the Common-Pleas 334. FIAL and VARIER's Case IN an Action upon the Case upon an Assumpsit the Case was this A man did promise to stand to the Arbitrement of J. S. J. D. if they made their Arbitrement and Award within ten dayes and if they do not make their Award within ten dayes that if they nominate an Umpier and he make an Award within the said ten dayes that then c. J. S. J. D. did not make any Award within ten dayes but the fourth day after the Submission they did nominate J. N. to be Umpier who made an Award within the said ten dayes and the Defendant would not perform the Award wherefore the Plaintiffe brought the action Sherley Serjeant It is repugnant For the first Arbitrators had the whole ten dayes to make their Award and then cannot the Umpier make an Award within the said ten dayes But the opinion of the whole Court was that the action would lie and that it should be construed thus viz. That if an arbitrement and award be made within ten dayes by the first Arbitrators or by the Umpier For the first Arbitrators may examine the matter for two or three dayes and if they cannot make any award then the Umpier shall have the rest of the ten dayes to make the award and so it was adjudged Mich. 11. Iacobi in the Common-Pleas 335. COLT and GILBERT's Case AN action upon the Case brought for these words He is a Thief and stole a Tree adjudged that the action would lie for the later words do not extenuate the former But Thou art a Thief for thou hast robbed my Orchard are not actionable v. C. 4 par Bretridges Case Mich. 11. Iacobi in the Common-Pleas 336. BROOK's Case AN action upon the Case was brought for words The Plaintiffe set forth in his Declaration That he was a Mercer by his trade and did sell wares and commodities in his shop and did keep divers Books of his trade and Debt-books and that the Defendant said unto Mr. Palmer being the Plaintiffs Father-in-law these words of the Plaintiffe viz. Your Son-in-Law Brooks deceived me in a Reckoning and he keepeth in his shop a false Debt-book And I will shame him in his Calling Nichols Justice and Hobart Chief Justice were of opinion that the action would not lie for those words 1. Because the words single of themselves are not any â—lander and when words will bear an action it ought to be out of the force and strength of the words themselves 2. The first words Thou hast deceived me in a Reckoning will bear no action because it is impossible but that Tradesmen and Merchants which keep Debt-books will sometimes mistake one Figure for another and so the same doth turn to the prejudice and damage of another against the will of the party himself And so the subsequent words He keepeth a false Debt-book are not actionable because it may be falsified by the Servants of the party and not by the Defendant himself and also it may be false written Et interest reipublicae ut sit finis litium and it should be a cause of many Suits if such a nice construction
is in the wife but the cause thereof is because it was once coupled with a possession C. 7. part Nevils Case There was a question whether an Earldom might be entailed and forfeited for Treason which is a thing which he hath not in possession nor use but is inherent in the blood And there resolved that the same cannot be forfeited as to be transferred to the King but it is forfeited by way of discharge and exoneration 12 Eliz. Dyer the Bishop of Durhams Case There if it had not been for the saving the Regal Jurisdiction of the Bishop had been given to the King by the Statute of 26 H. 8. This Statute of 26 H. 8. was made for the dread of the Traitor For the times past saw how dangerous Traitors were who did not regard their lives so as their lands might discend to their issue It was then desperate for the King Prince and Subject For the time to come it was worse The Law doth not presume that a man would commit so horrid an act as Treason so it was cited by Mr. Crook who cited the case That the King cannot grant the goods and lands of one when he shall be attainted of Treason because the Law doth not presume that he will commit Treason If the Law will not presume it wherefore then were the Statutes made against it If the Land be forfeited by the Statute of 26 H. 8. much stronger is it by the Statute of 31 H. 8. But then admit there were a Remitter in the Case yet by the Office found the same is defeated Without Office the Right is in the King Com. 486. c. 5. part 52 where it is said There are two manner of Offices the one which vests the estate and possession of the Land c. in the King where he had but a Right as in the case of Attaindor the Right is in the King by the Act of Parliament and relates by the Office Com. 488. That an Office doth relate 38 E. 3. 31. The King shall have the mean profits The Office found was found in 33 Eliz. and the same is to put the King in by the force of the Attaindor which was 29 H. 8. and so the same devests the Remitter Tenant in tail levieth a Fine and disseiseth the Conusee and dyeth the issue is remitted then proclamations pass now the Fine doth devest the Remitter C. 1. part 47 Tenant in tail suffereth a common Recovery and dyeth before Execution the issue entreth and then Execution is sued the Estate tail is devested by the Execution and so here in our Case it is by the Office C. 7. part 8. Tenant in tail maketh a Lease and dyeth his wife priviment ensient without issue the Donor entreth the Lease is avoided afterwards a Son is born the Lease is revived Com. 488. Tenant in capite makes a Lease for life rendring rent and for non-payment a re-entry and dyeth the rent is behind the heir entreth for non-payment of the rent and afterwards Office is found of the dying seised and that the land is hoâ—den in capite and that the heir was within age In the case the Entry for the Condition broken was revived and the Estate for life revived 3 E. 4. 25. A Disseisor is attainted of Felony the Land is holden of the Crown the Disseisee entreth into the Land and afterwards Office is found that the Disseisor was seised the Remitter is taken out of the Disseisee which is a stronger case then our Case for there was a right of Entire and in our Case it is but a right of Action which is not so strong against the King And for these Causes he concluded That the Judgment given in the Court of Pleas ought to be reversed And so prayed Judgment for the Lord of Sheffield Plaintiffe in the Writ of Error This great Case came afterwards to be argued by all the Judges of England And upon the Argument of the Case the Court was divided in opinions as many having argued for the Defendant Ratcliffe as for the Plaintiffe But then one new Judge being made viz. Sir Henry Yelverton who was before the Kings Sollicitor his opinion and argument swayed the even ballance before and made the opinion the greater for his side which he argued for which was for the Plaintiffe the Lord Sheffield And thereupon Judgment was afterwards given That the Judgment given in the Court of Pleas should be reversed and was reversed accordingly And the Earl Lord Sheffield now Earl of Mulgrave holdeth the said Castle and Mannor of Mulgrave at this day according to the said Judgment Note I have not set here the Arguments of the Judges because they contained nothing almost but what was before in this Case said by the Councel who argued the Case at the Bar. Pasch 21 Jacobi in the Kings Bench. 418. IT was the opinion of Ley Chief Justice Chamberlain and Dodderidge Justices That a Defendants Answer in an English Court is a good Evidence to be given to a Jury against the defendant himself but it is no good Evidence against other parties If an Action be brought against two and at the Assises the Plaintiffe proceeds only against one of them in that case he against whom the Plaintiffe did surcease his suit may be allowed a Witnesse in the Cause And the Judges said That if the Defendants Answer be read to the Jury it is not binding to the Jury and it may be read to them by assent of the parties And it was further said by the Court That if the party cannot find a Witnesse then he is as it were dead unto him And his Deposition in an English Court in a Cause betwixt the same parties Plaintiffe and Defendant may be allowed to be read to the Jury so as the party make oath that he did his endeavour to find his Witnesse but that he could not see him nor hear of him Pasch 21 Iacobi in the Kings Bench. 419. THe Husband a wife seised of Lands in the right of the wife levied a Fine unto the use of themselves for their lives and afterwards to the use of the heirs of the wife Proviso that it shall and may be lawfull to and for the husband and wife at any time during their lives to make Leases for 21 years or 3 lives The wife being Covert made a Lease for 21 years And it was adjudged a good Lease against the husband although it was made when she was a Feme Covert and although it was made by her alone by reason of the Proviso Pasch 21 Jacobi in the Common-Pleas 420. NOte that Hobart Chief Justice said That it was adjudged Mich. 15 Jacobi in the Common-Pleas That in an Action of Debt brought upon a Contract the Defendant cannot wage his Law for part and confesse the Action for the other part And it was also said That so it was adjudged in Tart's Case upon a Shop-book And vide 24 H. 8. Br. Contract 35. A Contract cannot be divided
contract was determined and not in esse at the time of promise But he said it was otherwise upon a consideration of Marriage for that is alwayes a present consideration and alwayes a consideration because the party is alwayes married Windham to the same intent and compared it to the Case of 5. H. 7. If one sell an horse to another and after at another day will warâ—ant him to be good and sound of limb and member it is void warranty for it ought to have been at the same time that the horse was â—old Periâ—m Justice contrary for he said This case is not like to any of the cases which have been put because there is a great difference betwixt Contracts and this Action For in Contracts the consideration and promise and sale ought to concur because a Contract is derived of con trahere which is a drawing together so as in Contracts every thing requisite ought to concur as the consideration of the one side and the promise or sale of the other side But to maintain an Assumpsit it is not requisite for it is sufficient if there be any moving cause or consideration precedent for which cause or consideration the promise was made and that is the common practice at this day For in Assumpsit the Declaration is That the Defendant for and in consideration of ten pounds to him paid postâ—a silicet a day or two after super se assumpsit c. and that is good and yet there the consideration is executed And he said that Hunt and Baker's case which see 10. Eliz. Dyer 272. would prove it The case was this The Apprentice of Hunt was arrested when Hunt was in the Country and Baker one of Hunts neighbours to keep the Apprentice out of the Counter became his Baile and paid the debt Afterwards Hunt returning out of the Country thanked Baker for his neighbourly part and promised him to repay him the said summ Upon which Baker brought an Action upon the Case upon the promise And it was adjudged that the Action would not lie not because the consideration was precedent to the promise but because it was executed and determined long before But there the Justices held That if Hunt had requested Baker to have been surety or to pay the debt and upon that request Baker paid the debt and afterwards Hunt promiseth for that consideration the same is good for the consideration precedes and was at the instance and request of the Defendant So here Sydenham became bail at the request of the Defendant and therefore it is reason that if he be at losse by his request that he ought to satitfie him And he conceived the Law to be cleer that it was a good consideration and that the request is a great help in the Case Rodes Justice agreed with Periam for the same reasons and denyed the Case put by Anderson And he said That if one serve me for a year and hath nothing for his service and afterwards at the end of the year I promise him ten pounds for his good and faithfull service ended he may maintain an Assumpsit for it is a good consideration But if the servant hath wages given him and the Master ex abundantia as he said promiseth him ten pounds after his service ended the same promise shall not maintain an Assumpsit for there is not any new cause or consideration preceding the Assumpsit And Periam agreed to that difference and it was not denyed by the other Justices but they said that the principall Case was a good case to be advised upon and at length after good advice and deliberation had of the cause they gave Judgment for the Plaintiff that the Action would lie And note That they very much relyed upon Hunt and Bakers Case before cited See Hunt and Baker's Case in 10. Eliz. Dyer 272. Pasc 27. Eliz. in the Common Pleas. 41 CARTER and CROST's Case CArter brought an Action of Detinue of a chaine against Crosts and declared That Thomas Carter his brother was thereof possessed and died Intestate for which cause the Bishop of Cork granted him Letters of Administration and that the Chain came to the Defendants hands by Trover c. And declared also That he was as Administrator thereof possessed in London To which the Defendant Crosts pleaded the Generall Issue and the Jury gave a speciall Verdict and found that the Administration was committed to Carter in London by the Bishop of Cork in Ireland here and did not find that Carter was possessed of the chain in London And upon this special Verdict first it was moved That the Bishop of Cork in Ireland being in England might commit administration of things in Ireland And it was held cleerly by the Court That he might of things within his Diocesse in Ireland because it is an Authority Power or Matter that followes his Person and wheresoever his Person is there is his Authority As the Bishop of London may commit Administration being at York but it ought to be alwaies of things within his Diocesse and therefore they held That the Declaration was good in that point That the Bishop of Cork did commit Administration in London although there be no such Bishop of England The second point was If an Aministrator made by a Bishop of Ireland might bring an Action here as Administrator and it was holden That he could not because of the Letters of the Administration granted in Ireland there could be no triall here in England although that Rodes Justice said That Acts done in Spirituall Courts in Forrain places as at Rome or elsewhere the Law saith That a Jury may take notice of them because such Courts and the Spirituall Courts here make but one Court and he proved it by the Case of the Miscreancy in 5. R. 2. Tryall 54. where a Quare Impedit was brought by the King against the Clerk of a Church within the Bishopprick of Durham and counted that the Bishop who is dead presented his Clerk and that the Clerk died and the Chapter collated a Cardinall who for Miscreancy and Schisme was deprived the Temporalties being in the Kings hands Burgh He hath counted of an Avoidance for Miscreancy at the Court of Rome which thing is not tryable here Belknap Chief Justice I say for certain That this Court shall have Conusans of the Plea and that I will prove by Reason for all Spirituall Courts are but one Court and if a man in the Arches be deprived for a Crime and appeal to Rome and is also there deprived that Deprivavation is triable in the Kings Court in the Arches And if a man be adhering unto the Kings enemies in France his Lands are forfeitable and his adherence shall be tryed where his Land is as oftentimes it hath been for adherence to the Kings enemies in Scotland And so by my faith if one be Miscreant his Land is forfeitable and the Lord thereof shall have the Escheat and that is good reason For if a man
not shew what trees nor how many he might cut and that he hath cut down more then he ought and also he doth not shew when the cutting of them was Vide 6. E. 4. By prescription they may prescribe to hold a Court before the Steward but if there be no custome or Prescription to warrant it then as 4. H. 6. is it is coram Senescalio Sectatoribus Gaudy Every Court Baron is to be holden before the Suitors if there be no Prescription to the contrary But a Leet alwayes before the Steward The Action of Debt was upon the Presentment and the Error is brought upon the defects in the Presentment for if that be not good all is naught Notwithstanding it was said by one at the Bar That the forme of pleading in the book of Entries is That the Court was holden before the Steward if the Action be for debt or Trespass for Amercements or such personall things But if the Action be brought for reall things then it is before the Suitors But notwithstanding that the Judgement for the Causes aforesaid was reversed Mich. 28 29. Eliz. in the Kings Bench. 84 BARKER and FLETWEL'S Case BArker of Ipswich brought an Action of Covenant against the Assignee of his Lessee for years one Fletwell And set forth That whereas he had made a Lease for years reserving Rent with re-entry for non-payment of the Rent and that the Lessee did covenant to build a house upon the Land within the first ten years and that he assigned over his terme And he brought the Action against the Assignee who pleaded That the Lessor did enter and had the Possession for part of the ninth year and if thereby the Covenant were discharged was the demurrer in Law Godfrey Who argued for the Lessor said That by this entrie of the Lessor the Covenant was not suspended As 20. E. 4. 12 BY. Extinguishment 34. The Abbot of D. did grant to W. S. a Corrodie viz. so much bread c. for the term of his life faciend ' talia servitia prout J. N. alii usi sunt focere The Grantee leased back again the Corrodie unto the Abbot for 10. years rendring 3â— rent per annum and he brought Debt for the rent and the Abbot said That he did not the Services and the Grantee said That he was not bound to do them for that by the Lease the Corrodie was suspended And it was holden that it was not suspended Godfâ—â—y held the reason to be because that the service is a Collaterall thing And therefore he said He ought to do it notwithstanding that the Abbot had the Corrodie So in 8. H. 7. 7. Br. Conditions 134. Where Tenant in taile makes a Feoffment in Fee and takes back an estate in Fee and afterwards was bounden in a statute Merchant and then made a Feoffment in Fee upon Condition and died his Issue within age who enters for the Condition broken he was remitted notwithstanding that execution upon the statute was sued against the Father in his life So if Lease be made of a Manor except Herriots Fines and Amercements and that the Lessee shall collect them during the Term although that the Lessor entreth yet the Lessee ought to collect them during the term Also he pleades here That Barker did enter and that generall pleading is doubtfull and the Plea shall be taken strictly against him that pleadeth it and it may be that he entred by wrong and so it may be that he entred by right viz. for not payment of the Rent as in truth his entry was And if Barker did enter lawfully then it was no suspension or extinguishment of the Covenant As 19. R. 2. If Lessee for life commit waste and afterwards alieneth and the Lessor entreth for the Alienation yet after his entry he shall have an Action of Waste against the Lessee So 8. H. 6. 10. Waste 8. but with this difference If the Lessor enter wrongfully there although Waste be done before he shall not have Waste to punish it but otherwise if he enter for the Forfeiture done by the Tenant Also if the Covenant was suspended it was only for the time that the Lessor had the Possession and the Party hath not answered for the time before or after As 16. H. 7. If one be bound to find a Chaplain to say Divine Service within such a Chappel and the Chappel fall down it is a good excuse for the time but if it be built again he must find a Chaplain there Clarke contrary If Lessee for years covenanteth to repair the houses I grant that the same shall charge his Assignee But a Collateral thing as if the Lessee covenant to pay such a sum in gross or to enfeoffe him of the Manor of D the same shall not charge the Assignee no more shall a Covenant to build a new house But here it was said That he had time to build it both before and after the entry of the Lessor Barker To that he answered Not so for if he once disturbed the Covenant is destroyed Godfrey This Case was this Terme in the Common Pleas. Lessee for five years covenanted to build a Mill within the terme and because he had not done it the Lessor brought an Action of Covenant and the Defendant pleaded That within the last three years the Lessor forcibly held him out c. so as he could not build it and by the Opinion of all the Justices he ought to plead That the Lessor with force held him out otherwise it would be no Plea Cook As amicus curiae vouched 35. H. 6. Tit. Barr. If one be bounden to enfeoffe me of such land before Michaelmas there the Obliger in Debt brought upon the Bond pleaded That the Obligee before the day had entred with force into the land so as he could not enfeoffe him and there it was holden That he ought to prove that he was holden out by force Gaudy In the principall Case he ought to have shewed That he would not suffer him to build And the other Justices seemed to be of the same Opinion but yet they said That they would advise upon the Case Mich. 28 29. Eliz. in the Kings Bench. 85 OWen took Exception to a Declaration in an Ejectione firme because it was à Possessione sua ejecit where it ought to be according to the supposal of the Writ Quod à firma sua ejecit Also it was of three closes naming them with a Videlicet containing by estimation 30. Acres and that he said did contain no certainty where he ought to have alledged in Fact that they did contain so many Acres But it was holden by all the Justices That although he doth not put in the Declaration the certainty of the Acres if he give a certain name to them as Green-Close c. that it is good And as to the other Exception viz. Ejecit à Possessione inde that the word inde had relation to the Farme and shall be as much as
did admit a Copy-holder in Remainder for life That the same was a good admittance according to the Custome And that he was a sufficient Dominus pro tempore as to this purpose Although it was objected by Walmesley That the Gardian is but Servus and not Dominus But because it was agreed that he had a lawfull Interest the admittance was good and so it was adjudged 33. Eliz. In the Common Pleas. 178 SHIPWITH and SHEFFIELD'S Case THe Custome of a Copy-hold Manor was That a feme Covert might give Lands to her Husband And if it were a good Custome or not was the Question Fleetwood The Custom is good and vouched 12. E 3. That in York there is such a custome That the Husband might give the Land of his own purchase to his wife during the Coverture and it is a good Custome That an Infant at the age of fifteen years may make a Feoffment 29. E. 3. and the same is good at the Common Law and yet the same all began by custome But the Court was of opinion That the Custome is unreasonable because it cannot have a lawfull Commencement And Anderson Chiefe Justice said That a Custome that an Infant at the age of seven years might make a Feoffment is no good custome because he is not of age of discretion And in this case at Barre It shall be intended that the wife being sub potestate viri did it by the Coherison of her Husband The same Law is of a Custome That the wife may lease to her Husband Fleetwood urged That the custome might be good because the wife was to be examined by the Steward of the Court as the manner is upon a Fine to be examined by a Judge To which the Court said nothing 31. Eliz. in the King's Bench 179 AN Action upon the Case upon an Assumpsit was brought And the Plaintiff layed his Action That such a one did promise him in respect of his labour in another Realme c. to pay him his contentment And he said That Twenty five Pound is his contentment and that he had required the same of the Defendant Cook moved in arrest of Judgement it being found for the Plaintiffe upon Non Assumpsit pleaded that no place was alledged where the contentment was shewed And the opinion of the Court was against him for Gawdy and Wray were of opinion that he might shew his contentment in any Action and so it is where it is to have so much as he can prove he might prove it in the same Action Cook said That it had been moved in stay of Judgement in this Court upon an Assumpsit because the request was not certain And that case was agreed by the Justices because the request is parcell of the Assumpsit and the entire Assumpsit together in such case is the cause of the Action but in this case that he should content him is not the cause of the Assumpsit but only a circumstance of the matter and it was resembled to the Case of 39. H. 6. where a Writ of Annuity was brought for Arrerages against an Abbot pro consilio c. And the Plaintiffe declared that the Councel was ad proficuum Domus and was not alledged in certain and it was holden that the same was not materiall although it were uncertain because it was but an induction and necessary circumstance to the Action And so the Plaintiffe recovered and had Judgement Mich. 29 Eliz. in the King 's Bench. 180 THE Statute of 23. Eliz. cap. 25. is Quod non licuit alicui to engrosse Barley c. and in the Statute there is a Proviso That he may so do so as he convert it into Malt. The question was If in an Information upon that Statute That the Defendant had converted it to Malt he might plead the generall Issue Not guilty and give in Evidence the speciall matter or whether he ought to plead the speciall matter Clench Justice He may plead Not guilty c. for the Proviso is parcel and within the body of the Statute as 27. H. 8. 2. where upon an Information upon the Statute of Farmors it is holden by Fitzherbert That the Vicar may plead Non habuit seu tenuit ad firmam contra formam Statuti c. and yet the Statute in the premises of it restrains every Spirituall Person to take in Farme any Lands c. and afterwards by a Proviso gives him liberty to take Lands for the maintenance of his house c. As upon the Statute of R. 2. If he do plead That he did not enter contra formam Statuti he may give in Evidence that he entred by Title as that his father was seised and died and the same is not like unto the condition of a Bond for that is a severall thing But the Proviso and the Statute is but one Act. Mich. 29. Eliz. in the King 's Bench. 181 NOte It was said by Master Kemp Secondary of the King's Bench That there is a Court within the Tower of London but he said That it was but a Court Baron and said That he can shew a Judgement That no Writ of Error lieth of a Judgement given there And it was a question Whether Process might be awarded to the Lieutenant of the Tower for Execution upon a Judgment given in the Kings Bench because the Defendant was removed and dwelt within the Liberty of the Tower And it was said It could not but the Writ ought to be awarded to the Sheriffs of London and if they returne the Liberties of the Tower then a Non omittas shall be awarded But some Counsellors said That although a Non omittas be awarded yet the Sheriffs durst not go unto the Liberties of the Tower to serve the Process 2 Jacobi in the Common Pleas. 182 The Lady STOWELL'S Case IT was adjudged in this Case That the wife who is divorced causa adulterii shall have her Dower 3. Jacobi in the Common Pleas. 183 WARNER'S Cafe LEssee for twenty years doth surrender rendring rent during the term It was adjudged a good rent for so many years as the term might have continued 3. Jacobi in the King 's Bench. 184 WHITLOCK and HARTWELL'S Case TWO Joint-Tenants for life the one demised and granted the moyty unto his companion for certain years to begin after his death Adjudged void because it is but a possibility And so is it of a Covenant to stand seised to the use c. as it was adjudged in Barton and Harvey's Case 37. Eliz. 3. Jacobi In the Kings Bench. 185 PINDER'S Case A. devised lands in Fee to his son and many other lands in tail And afterwards he said I will that if my son die without issue within age that the lands in Fee shall go to such a one Item I will that the other lands in tail shall go to others and doth not say in the second Item if the son dieth without issue within age It was adjudged That the second Item should be without
in Ward For Cook Chief Justice said that all Offices which are found to deceive the Crown of such an ancient flower of the Crown as Wardship should be void as to that purpose and most beneficial for the King And he cited the Case in 36. H. 8. Where the Kings Tenant made a Feoffment and took back an estate unto himself for life the Remainder to his Grand-child for 80. years and died that in that Case the Heir was in Ward and they said that in the case at Barre the Heir had power of the Inheritance upon payment of five Shillings and if the Lease for years be found and proved by witnesses yet it carrieth with it the badges of fraud And Tanfeild Chief Baron said that if a Lease for 100. years shall be accounted Mortmain à fortiori this Lease for 1000. years shall be taken to be made by fraud and collusion And Cook said that the Lord Chancellour of England would not relieve such a Lessee in Court of Equity because the begining and ground of it is apparant fraud Note the lands did lye in Springfield in Essex Trinit 10. Jacobi in the Common Pleas. 274 MEADES Case AN Action of Debt was brought upon a Bond against Meade who pleaded that the Bond was upon condition that if he paid ten pound to him whom the Obligee should name by his last will that then c. and said that the Obligee made his Will and made Executors thereof but did not thereby name any person certain to take the ten pound Sherley Serjeant moved that the Executors should have the ten pound because they are Assignees in Law as it is holden in 27. H. 8. 2. But the whole Court was of opinion that the Executors were not named in the Will for such a purpose viz. to take the ten pound For they said It is requisite that there be an express naming who shall take the ten pound otherwise the Bond is saved and not forfeited And Cook put this Case If I be bounden to pay ten pound to the Assignee of the Obligee and his Assignee makes an Executor and dieth the Executor shall not have the ten pound But if I be bounden to pay ten pound to the Obligee or his Assignees there the Executor shall have it because it was a duty in the Obligee himself the same Law if I be bound to enfeoffe your Assignees c. Wherefore it it was adjudged for the Defendant Trinit 10. Jacobi in the Common Pleas. 275 GREENWAY and BAKER's Case IT was moved and afterwards resolved in the Case of a Prohibition prayed to the Court of Admiralty That if a Pirat taketh goods upon the Sea and selleth them that the property of them is changed no more then if a theife upon the Land steales them and selleth them And in this Case it appeared by the Libell That bona piratica fuerint infra Portam Argier super altum mare And for that cause a Prohibition was denied because Argier being a forrain Port the Court could not take notice whether there were such a place of the Sea called the Port or whether it were within the Land or not Afterwards upon the mediation of the Justices the parties agreed to try the cause in the Guild-hall in London before the Lord Chiefe Justice Cook Trinit 10. Jacobi in the Common Pleas. 276. Sir FRANCIS FORTESCUE and COAKE's Case UPon an Evidence in an Ejectione firme betwixt the Plaintiffe and Defendant The Court would not suffer Depositions of witnesses taken in the Court of Chancery or Exchequer to be given in Evidence unlesse affidavit be made that the witnesses who deposed were dead And Cook Chiefe Justice said nullo contradicente That it is a principall Challenge to a Jurour That he was an Arbitrator before in the same case because it is intended that he will incline to that partie to which he inclined before but contrary is it of a Commissioner because he is elected indifferent And it was also said in this Case That one who had been Solicitor in the Cause is not a fit person to be a Commissioner in the same Cause Trinit 10. Jacobi in the Common Pleas. 277 BArker Serjeant in Arrest of Judgement moved That the Venire facias did vary from the Roll in the Plaintiffs name for the Roll was Peter Percy and the Venire facias John Percy and the postea was according to the Roll which was his true name The Court doubted whether it might be amended or whether it should be accounted as if no Venire facias had issued because it is betwixt other parties But it was holden That in case no Venire facias issueth the same is holpen by the Statute of Jeofailes and in this case it is in effect as if no Venire facias had issued forth and so it was adjudged And Cook Chiefe Justice said that if there be no Venire facias nor habeas Corpora yet if the Sheriffe do return a Jury the same is helped by the Statute of Jeofailes Warburton Justice contrary vide C. 5. part Bishops case And Harris Serjeant vouched Trinit 7. Jacobi Rot. 787. in the Exchequer Herenden and Taylors case to be adjudged as this Case is Trinit 10. Jacobi in the Common Pleas. 278 BROWN's Case IT was holden by the whole Court in this case That if a man hath a Modus Decimandi for Hay in Black-acre and he soweth the said acre seven years together with corn that the same doth not destroy the Modus Decimandi but the same shall continue when it is again made into hay And when it is sowed with corn the Parson shall have tithe in kind and when the same is hay the Vicar shall have the tithe hay if he be endowed of hay Trinit 10. Jacobi in the Common Pleas. 279 JAMES and RATCLIFF's Case IN Debt upon a Bond to perform such an agreement The Defendant pleaded Quod nulla fuit conclusio-sive agreeamentum The Plaintiff said Quod fuit talis conclusio agreeamentum de hoc ponit se super patriam The Court held the same was no good issue because a Negative and an Affirmative Trinit 10. Jacobi in the Common Pleas. 280 WETHERELL and GREEN's Case IT was said by the Pronothories That if a Nihil dicit be entred in Trinity Term and a Writ of Enquiry of Damages issueth the same Term that there needs not any continuance but if it be in another Term it is otherwise The Court said If it were not the course of the Court they would not allow of it but they would not alter the course of the Court the words of continuance were Quia vicecomos non misit brev Trinit 10. Jacobi in the Common Pleas. 281 PARROT and KEBLE's Case A Man levied a Fine unto the use of himself for life the remainder in tail c. with power reserved to the Conusor to make Leases for eighty years in Possession or Reversion if A. B. and C. did so long live reserving the ancient rent
afterwards he granted the Reversion for eighty years reserving the ancient rent The question was Whether he had pursued his Authority because by the meaning of the Proviso a Power was That the Conusor should have the rent presently or when the Term did begin But the opinion of the Court was That he had done lesse then by the Proviso he might have done for this Grant of the Reversion doth expire with the particular estates for life But if he had made a Lease to begin after the death of the Tenants for life the same had been more then this grant of the Reversion And Cook chief Justice said That the Grantor may presently have an Action of debt against the Grantee of the Reversion for the rent But because it was not averred that any of the Cestuy que viei were alive at the time when the Grantor did distrain for the rent Judgement in the principall case was respited Trinit 10. Jacobi in the Common Pleas. 282 UPon the Statute of Bankrupts this Case was moved to the Court If a Bankrupt be endebted unto one in Twenty Pounds and to another in Ten Pounds and he hath a Debt due to him by Bond of Twenty Pounds Whether the Commissioners may assigne this Bond to the two Creditors jointly or whether they must divide it and assigne Twenty Marks to the one and Twenty Marks to the other And the Court was of opinion That it was so to be divided as the words of the Statute are viz to every Creditor a portion rate and rate like c. And then it was moved How they might sue the Bond whether they might joine in the Suit or not ad quod non fuit responsum by Cook Warburton Justice said That when part of the Bond is assigned to one and part to another that now the Act of Parliament doth operate upon it and therefore they shall sue severally for he said That by the custome of London part of a debt might be attached And therefore he conceived part might be sued for Trinit 10. Jacobi In the Common Pleas. 283 SPRAT and NICHOLSON's Case SPrat Sub-Deacon of Exeter did libel in the Spiritual Court against Nicholson Parson of A. pro annuali pensione of Thirty Pound issuing out of the Parsonage of A. and in his Libel shewed How that tam per realem compositionem quam per antiquam laudabilem consuetudinem ipse predecessores sui habuerunt habere consueverunt praedictam annualem penfionem out of his Parsonage of A. Dodderidge Serjeant moved for a Prohibition in this Case because he demands the said Pension upon Temporall grounds viz. prescription and reall composition But Cook Chief Justice and the other Justices were of opinion That in this Case no Prohibition should be granted for they said That the party had Election to sue for the same in the Spirituall Court or at the common Law because both the parties were Spirituall persons but if the Parson had been made a party to the Suit then a Prohibition should have been granted Vide Fitz. Nat. Brev. 51. b. acc And they further said That if the party sueth once at the common Law for the said Pension that if he afterwards sue in the Spirituall Court for the same that a Prohibition will lie because by the first Suit he hath determined his Election And Cook cited 22. E. 4. 24. where the Parson brought an Action of Trespass against the Vicar for taking of Under-Woods and each of them claimed the Tithes of the Under-Woods by prescription to belong unto him and in that Case because the right of the Tithes came in question and the persons were both of them Spirituall persons and capable to sue in the Spirituall Court the Temporal Court was ousted of Jurisdiction But he said That if an issue be joined whether a Chappel be Donative or Presentative the same shall be tryed by a Jury at the common Law And in this case it was said by the Justices That the Statute of 34. H. 8. doth authorize Spiritual persons to sue Lay-men for Pensions in the Spiritual Courts but yet they said That it was resolved by all the Judges in Sir Anthony Ropers case That such Spiritual persons could not sue before the High Commissioners for such Pensions for that Suits there must be for enormious Offences only And in the principall case the Prohibition was denyed Trinit 10. Jacobi in the Common Pleas. 284 Sir BAPTIST HIX and FLEETWOOD and GOT's Case FLeetwood and Gots by Deed indented did bargain and sell Weston Park being three hundred Acres of Lands unto Sir Baptist Hix at Eleven Pound for every Acre which did amount in the whole to Two thousand five hundred and thirty Pounds and in the beginning of the Indenture of Bargain and Sale it was agreed betwixt the parties That the said Park being much of it Wood-land should be measured by a Pole of eighteen foot and a halfe And further it was covenanted That Fleetwood and Gots should appoint one Measurer and Sir Baptist Hixe another who should measure the said Park and if upon the measuring it did exceed the number of Acres mentioned in the Indenture of Sale that then S. Baptist Hixe should pay to them acording to the proportion of 11l. for every Acre and if it wanted of the Acres in the deed that then Fleet ' and Gots should pay back to S. Baptist the surplusage of the mony according to the proportion of 11. l. for every Acre And upon this Indenture Sir Baptist Hixe brought an Action of Covenant against Fleetwood and Gots and assigned a Breach that upon the measuring of it it wanted of the Acres mentioned in the Deed 70 Acres And upon the Declaration the Defendants did demurre in Law and the cause of the Demurrer was because the Plaintiff did not shew by what measure it was measured And therefore Sherley Serjeant who was of Councel with the Defendants said that although it was agreed in the beginning of the Deed that the measure should be made by a Pole of 18 feet and a half Yet when they come to the covenants there it is not spoken of any measure at all and therefore he said it shall be taken to be such a measure which the Statute concerning the measuring of Lands speaks of viz. a measure of sixteen foot and a half to the Pole and he said that by such measure there did not want any of the said three hundred Acres mentioned in the Deed. Dodderidge Serjeant contrary for the Plaintiff and he layed this for a ground That if a certainty doth once appeare in a Deed afterwards in the same Deed it is spoken indefinitely the same shall be referred to the first certainty and to that purpose he vouched the case in Dyer Lands were given by a Deed to a man haeredibus masculis and afterwards in the same Indenture it appeared that it was haeredibus masculis de Corpore and therefore it was holden but an estate in
6. 30. 18 E. 4. 2. 36 H. 6. 7. Also he said When a Declaration is general the Defendant need not traverse 1 E. 4. 9. 2 E. 4. 28. And further he said That the Statute of 27 Eliz. cap. 5. of Demurs helped that defect for that it is but only in matter of form But the Justices did not argue that point But the Question which they made was Whether the Constitution or Ordinance were lawful or not And as to that it was holden by the whole Court That the said Ordinance was unlawful And it was agreed by the Court That the King might make Corporations and grant to them that they may make Ordinances for the ordering and government of any Trade but thereby they cannot make a Monopoly for that is to take away Free-trade which is the birthright of every Subject And therefore the Case was in 2 H. 5. 5. in Debt upon a Bond upon Condition That one should not use his Trade of a Dyer in the Town where the Plaintiffe did inhabit for one year And there said That the Obligation was void because the Condition was against the Law And he swore by God if the Plaintiffe were present that he should go to prison till he had paid a Fine to the King Yet regularly Modus Conventio vincunt legem 2. It was resolved That although such Clause was contained in the Kings Letters Patents yet it was void But where it is either by Prescription or by Custome confirmed by Parliament there such an Ordinance may be good Quia Consuetudo Legalis plus valet quam Concessio Regalis The King granted unto the Abbot of Whitny the Custody of a Port which is as it were a Key of the Kingdom and therefore the Grant was void and so adjudged And such Grants are expresly against the Statute of 9 E 3. cap. 1. And the Charter granted by King Henry the 8. to the Physitians of London hath the same Clause in it But if it had not been confirmed by Act of Parliament made 33 H. 8. it had been void The King granted unto B. that none besides himself should make Ordnances for Battery in the time of war Such Grant was adjudged void But if a man hath brought in a new Invention and a new Trade within the Kingdom in peril of his life and consumption of his estate or stock c. or if a man hath made a new Discovery of any thing In such Cases the King of his grace and favour in recompence of his costs and travail may grant by Charter unto him That he only shall use such a Trade or Trafique for a certain time because at first the people of the Kingdom are ignorant and have not the knowledge or skill to use it But when that Patent is expired the King cannot make a new Grant thereof For when the Trade is become common and others have been bound Apprentices in the same Trade there is no reason that such should be forbidden to use it And Cook Chief Justice put this Case The King granted to B. That he solely should make and carry Kersies out of the Realm and the Grant was adjudged void which Crook concessit 3. It was resolved That this Charter was void because of the words viz. Nisi ante eos vel duos eorum probationem fecerit c. And therefore it was considered what proof should be sufficient for the party And as to that it was agreed That the proof cannot be upon Oath for such a Corporation cannot admidister an Oath unto the party And then the proof must be by his Indentures and Witnesses and perhaps the Corporation will not allow of any of them For which the party hath no remedy against the said Corporation but by his Action at the Common Law and in the mean time he should be barred of his Trade which is all his living and maintenance and to which he had been Apprentice for seven years Another reason was given because that by this way they should be Judges in their own cause which is against the Law And the King cannot grant unto another to do a thing which is against the Law And afterwards Trin. 12 Jacobi Judgment was entred Quod Querentes nihil capiant per Billam And Judgment was then given for the Defendant Pasch 12 Iacobi in the Kings Bench. 352. LINSEY and ASHTON's Case LInsey brought an Action of Debt against Ashton upon a Bond the Condition of which was to perform an Award The Defendant said that the Award was That the Defendant should surcease all suits depending betwixt them which he had done The Plaintiffe in his Replication said That the Arbitrators made such Award ut supra and also that the Defendant should pay unto the Plaintiffe 25l. at the house of J. S. absque hoc that they made the other Award only Upon which the Defendant did rejoyn and said That well and true it is that they made those Awards c. But they further awarded that the Plaintiffe should release unto the Defendant which he had not done And upon the Rejoynder the Plaintiffe did demur in Law And the opinion of the Court was without question That the Plea was a departure 19 H. 6. 19. But it was argued by Finch That the Replication was insufficient For the Plaintiffe ought not to have traversed as this Case is because that a man ought not to traverse a thing alleadged by Implication but ought to traverse that which is alleadged de facto upon which there may be an issue joyned And to prove the Traverse void the Case in 11 H. 6. 50. was put But the Exception was not allowed by the Court Another Exception was taken because the Award it self was void because it was to do a thing upon the Land of another man which he might not lawfully do And although the Arbitrators might award him to do the thing which is inconvenient yet they cannot award him to do a thing which is impossible and against the Law as in 17 E. 4 5. Two were bound to stand to the Arbitrement of J. S. of all Trespasses who awarded that the one should pay unto the other 40. and that he find Sureties to be bounden for the payment of it And by the opinion of the Justices the Award was void because he could not award a man to do that which did not lie in his power and he hath no means to compel the stranger to be bound for him But the opinion of the whole Court was against Finch For first the mony is to be paid apud domum J. S. and not in domo And it might be for any thing that appeareth that the said House is adjoyning to the High-way so as every Stranger might lawfully come unto it although he might not come into it without being a Trespassor But admit it be not adjoyning to the High-way yet he might come as neer unto the house as he could or he might get leave to come thither Secondly It was
the Court of York the Plaintiffe had Judgment that the Defendant should accompt And upon that Judgment the Defendant in the Court there brought a Writ of Error in the Kings Bench. And it was adjudged That no Writ of Error lay in that case because the Judgment to Accompt is but the Conveyance and the Plaintiffe hath not any benefit until he be satisfied by the Award of the Auditors for upon their Award the final Judgment shall be given Mich. 12 Iacobi in the Kings Bench. 357. The Bishop of SALISBURY's Case IT was holden in this Case That if a Bishop Parson or other Ecclesiastical person do cut down Trees upon the Lands unless it be for Reparations of their Ecclesiastical houses and do or suffer to be done any delapidations That they may be punished for the same in the Ecclesiastical Court and a Prohibition will not lie in the Case and that the same is a good cause of deprivation of them of their Ecclesiastical Livings and Dignities But yet for such Wastes done they may be also punished by the Common Law if the party will sue there Vide 2 H. 4. 3. Trin. 13 Iacobi in the Kings Bench. 358. PRAT and the Lord NORTH'S Case A Man was distreined by the Bailiffe of the Lord North for 20s. imposed upon him in the Court-Leet for the erecting and storing of a Dove-Cote And it was said That it cannot properly be called a Nusance but for the destroying of Corn which cannot be but at certain times of the year And therefore it was conceived That the party who was presented might traverse the Nusance to be with his Pidgeons and it was said that a man might keep Pidgeons within his new house all the year or put them out at such a time as they could not destroy the corn And Cook Chief Justice said That there is not any reason that the Lord should have a Dove-Cote more then the Tenant and he asked the Question where the Statute of E. 2. saith Inquiratur de Dove-Cotes erected without Licence Who should give the Licence Ad quod non fuit responsum In Mich. Term following the Case was argued by Damport who said That the erecting of a Dove-Cote by a Freeholder was no Nusance For a Writ of Right lieth of a Dove-Cote and in the Register it is preferred and named before Land Garden c. But he said that there was a fatal defect in the Plea which was That the Presentment at the Leet was That Prat had erected a Dove-Cote unlawfully and did not say ad commune nocumentum as it ought to be otherwise it is not presentable in the Leet And therefore although it was otherwise in the Plea That it was ad commune nocumentum the same did not help the defective Presentment Mich. 10 Jacobi in the Common Pleas. 359. GREENWAY and BARKER's Case BEtwixt Greenway and Barker It was moved for a Prohibition to the Court of Admiralty and the Cause was for taking of a Recognisance in which the Principal and his Sureties his heirs goods and lands were bounden And it was in the nature of an Execution at the Common-Law and thereupon they in the Admiral Court made out a Warrant to arrest the body of the Defendant there Dodderidge Serjeant said That it was not a Recognisance at the Common-Law but only a Stipulation in the nature of a Bail at the Common-Law and he said That it was the usual course to pledge goods there in Court to answer the party if sentence were given against him Nichols Serjeant They cannot take a Recognisance and by the Civil Law if the party render his body the Sureties are discharged and Execution ought to be only of the goods for the ship is only arrested and the Libel ought to be only against the ship and goods and not against the party 19 H. 6. acc ' And afterwards Dr. Steward and Dr. James were desired by the Court to deliver their opinions what the Civil Law was in this Case and Doctor Steward said He would not rest upon the Etymologie of the word for if it be a Recognisance Bail or Stipulation it is all one in the Civil Law and in such case he said by their Law Execution might be against the sureties And he argued 1. That ex necessitate it must be agreed that there is an Admiral Court 2. That that Court hath a Jurisdiction And by a Statute made in Henry the 8. time and by another in the time of Queen Elizabeth divers things as Appeals c. were triable by the Civil Law And he said That every Court hath his several form of proceedings and in every Court that form is to be followed which it hath antiently used And as to the proceedings he said That first they do arrest the goods 2. That afterwards the party ought to enter Caution which is not a Bond but only a Surety or Security which doth bind the parties And he said That the word Haeredes was necessary in the Instrument For for the most part the Sureties were strangers And he said That Court took no notice of the word Executors and therefore the word Haeredes is used which extends as well to Executors and Administrators as to Heirs And he said That upon a Judgment given in the Court of Admiraltie they may sue forth an Execution of it in forein parts as in France c. And he said That if Contracts be made according to other Laws the same must be tryed according to the Law of that Country the Contract is made Dr. James said That in the same Court there are two manners of proceedings 1 The Manner 2 the Customs of the Court are to be observed And he said that Stipulation ought to be in the Court by coertion which word is derived à stipite by which the party is tyed as he said as a Bear to the stake or as Vlisses to the Mast of the ship And he said In a Judicial stipulation four things are considerable 1 The Judicial Sistem 2. Reparratum habere 3. Judicatum solvere 4. De expensis solvendis as appeareth in Justinians Institutes cap de Satisdationibus For Satisdatio and Stipulatio are all one in the Civil Law And after Cook Chief Justice said That it ought to be confessed that there hath been a Court of Admiralty 2. That their proceedings there ought to be according to the Civil Law And he observed four things 1. The Necessity of the Court 2. The Antiquity of it 3. The Law by which they proceed and lastly the Place to which they are confined And as to the necessity of the Court he said That the Jurisdiction of that Court ought to be maintained by reason of Trade and Traffique betwixt Kingdom and Kingdom for Trade and Traffique is as it were the life of every Kingdom 2. A mans life is in danger by reason of traffique and Merchants venture all their estates and therefore it is but reasonable that they have a place for the trial of
38 H. 6. 14. If the Law doth not lie for parcel then it is suspended for the whole where the debt is an entire debt And so it was adjudged in this Case Pasch 21 Jacobi in the Kings Bench. 421. NOte it was cited by Chamberlain Justice 15 Jacobi to be adjudged That where a man brought an Action upon the Case against another man for calling of him Bastard that the Action was maintainable The Defendant brought a Writ of Error and shewed for Error That the Plaintiffe did not claim any Inheritance or to be heir to any person certain But notwithstanding that Error assigned the Judgment was affirmed And he said That if one saith of J. S. that his Father is an Alien that an Action upon the Case will lie because it is a disability to the Son Quaere Trin. 21 Jacobi in the Kings Bench. 422. YOUNG and ENGLEFIELD'S Case Intratur Pasch 21 Jac. Rot. 102. YOung brought an Action of Trespass for entring his Close c. abutted upon one side with Pancras and butted on the other side with Grayes-Inne-Lane Upon Not guilty pleaded the parties were at issue Aud the Record of Nisi prius was Graves-Inne-Lane And thereupon the party was Nonsuit And now it was moved to have a Venire facias de novo And a Case was cited expresse in the point betwixt Farthing and Dupper 9 Jacobi Rot. 1349. Where in an Action upon the Case upon Assumpsit the Plea-Roll was Six weeks and the Record of Nisi prius Six moneths And the Jury being sworn the Plaintiffe was Nonsuit and a Venire facias de novo was awarded and the Nonsuit was recorded Ley Chief Justice You cannot have a new Venire facias if the Nonsuit be recorded And if the Record of Nisi prius varieth from the Record then it can be no Nonsuit because there is no Record upon which the Nonsuit can be and the Nisi prius was prosecuted without warrant Judicial Procss are of Record because they are by the Award of the Court But if the Transcript of a Record be mistaken by a Clark it issueth out by the Award of the Court and if it vary then it is no Record The president cited is direct in the point There was a Venire facias de novo But I conceive there is a difference where the Jury is sworn as it is in the President and then the Plaintiffe is Non-suit but in our Case the Plaintiffe was Nonsuit before the Jury was sworn But per Curiam the Case is the stronger to have a new trial Trin. 21 Iacobi in the Kings Bench. 423. PRITCHARD and WILLIAMS Case IN an Ejectione Firme the Jury found for the Defendant Now it was moved for the Plaintiffe That the Defendant might not have Costs because the Venire facias is mistaken And the Defendants Councel cited a President in the Case viz. Mich 18 Jacobi betwixt Done and Knot where the Defendant had Judgment for his Costs notwithstanding that the Plaintiffe mistooke his Venire facias in an Ejectione Firme where the Jury found for the Defendant Trin. 21 Iacobi in the Kings Bench. 424. WISEMAN and DENHAM'S Case Wiseman brought an Action upon the Case against Denham Parson and declared that there is a Custom within the Town and Parish of Landone of which the Defendant is the Parson That every Parishoner who keeps so many Kyne within the said Parish should give and pay to the Parson for his Tythe-Milk so many Cheeses at Michaelmas and shewed how that he kept so many Kyne viz. 20 c. within the said Parish and that he did tender apud Landone so many Cheeses at Michaelmas to Denham the Defendant being Parson who refused them and to take them away but suffered them to be and continue in the Plaintiffs house for which cause he brought the Action The Defendant did demur upon the Declaration George Crook the Action will lie for the Plaintiffe hath a damage by reason that the Parson doth not take away his Tythe-Cheese And it is like unto the Case in 13 H. 4. Action sur le Case 48. Where a man sold unto another Hay and because that the Vendee took not away his Hay an Action upon the Case did lie for it was a damage to the Plaintiffe to let it stand upon his ground for he durst not put his Cattel into his ground to feed lest they should eat the Hay and spoil it and so he should be lyable to an Action to be brought by the Vendee So if Tythe be lawfully seâ—forth and the Parson refuseth the Tythe but will sue in the Spiritual Court for the Tythe an Action upon the Case will lie à fortiori in this Case for the Cheeses may be cumbersome and troublesome to the Partie so as he cannot make the best use or benefit of his house Paul Crook contrarie and he took exception because the tender is alledged to be apud Landone and it is not shewed that it was at his house at Landone or in any place certain and he said that the Action will not lie because here is no damage to the Plaintiffe and it is like the Case when a man makes a Lease rendring Rent Cheese or Corn and the Tenant tendreth it and the Lessor refuseth it the Lessee cannot have an Action upon the Case against his Lessor but he may plead the matter in barr in an Action brought by the Lessor And the Case of 13 H. 4. before put is not to the purpose for there it was part of the Bargain to take it away by such a time And in our Case the Plaintiffe may plead the matter in barr to the Plaint ' 43 Eliz. betwixt Crispe and Jackson an Action upon the Case was brought for suing in the Ecclesiatical Court for Tythes which were due and he recovered damages Secondly Admit that the Action doth lie then it is because it is a damage unto him that they remain in his house but it doth not appear that the tender was made at his house but apud Landone which might be a mile from the house and so because it was his own fault the Action will not lie as this Case is by reason of the tender George Crook It was adjudged in a Cornish Case that an Action upon the Case lieth against a Parson which doth not take away his Tythe corn or hay because it spoyles the ground upon which it stands and because the partie cannot have the free use of his Land So in our Case he cannot have the free aâ—e of his house the cheeses cumbring his house and offending him with their smell Haughton Justice If the Action were well laid it would lie for the Cause but in this Case it is not well laid If any thing makes the Action to lie it is the damage which the Plaintiffe doth sustain by the cheeses being in his house but here it is laid to be tendred apud Landone and it is not said at his house and non constat how the
house and then by his Will deviseth his houses called the Swan The rooms of the Lyon which A. occupied with the Swan shall pass by the Devise although of right those rooms do belong to the Lyon-house Pasc 36 Eliz. Ewer and Heydon's Case A man hath a house and divers lands in W. and also a house and lands in D. And by his Will he deviseth his house and all his lands in W. D. there the house which is in D. doth not pass for his intent and meaning plainly appears that his house in D. doth not pass But if he had devised all his lands in W. and had not spoken of the house the house had passed A Case was in the Common-Pleas betwixt Hyam and Baker The Devisor had two Farms and occupied parcel of one of the Farms with the other Farm and devised the Farm which he had in his possession The part of the other Farm which he occupied with it did pass with the Farm devised Dodderidge Justice The Devise is in the Case at Bar All his Farm called Locks to his eldest Son and all his Farm called Brocks to his younger Son And the Land in question was purchased long after that the Devisor purchased Brocks but that Land newly purchased was not expresly named in the Will and therefore it shall discend to the heir viz. the eldest Son Land is not parcel of a house and in strictness of Law cannot appertain to a house Yet Land is appertaining to the Office of the Fleet and the Rolls but that is to the Office which is in another nature then the Land is For the Land newly purchased the Jury did not find the same to be usually occupied with Brocks it shall not pass with Brocks although it be occupied together with Brocks I do occupie several Farms together and then I devise one of the Farms called D. and all the lands to the same belonging the other Farms shall not pass with it although they be occupied all together Haughton Justice What time will make lands to belong unto a house All the profits of the lands used with the house for a small time will serve the turn Ley Chief Justice There are two manner of belongings One belonging in course of Right and another belonging in case of Occupation To the first belonging there ought to be Prescription viz. time out of mind But in our Case Belonging doth borrow some sense from occupying for a year or a time And then another year to occupie it will not make it belonging in the later sense In strictness of Law Land cannot be said to belong to a house or land but in vulgar reputation it may be said belonging And in such case in case of grant the Land will not pass as appertaining to Land C. 4. part Terringham's Case But in our Case it is in case of a Will Usually occupied is not to be meant time out of mind Here other lands were belonging to Brocks and so the words of the Will are satisfied But it might have been a Question if there had been no other lands belonging to it Dodderidge Justice If the Devisor had turned all the profits thereof to Brocks then it had passed by the Will Ley Chief Justice This occupying of it promiscuously doth make it belong to neither At another day Ley Chief Justice said Here is nothing which makes it appear to us that this Land doth belong to Brocks For the Jury find not that it was occupied either with Brocks or Locks and so this Land belongs to neither of them Dodderidge There is not any Question in the Case It is not found that it doth belong And then we must not judge it belonging The ground of this question ariseth out of the matter of fact and it ought to be found at the least that it is appertaining in Reputation Haughton The Jury find that Knight was seised of Brocks and of lands belonging to it And that he was seised of Locks and of lands belonging to that And lastly they find that he was seised of this Land in question but they do not find that it was any wayes belonging to Brocks or Locks It was adjudged for the Plaintiff and that the Land did not pass by the Devise but that it did discend to the heir Trin. 21 Jacobi in the Kings Bench. 448. SELY against FLAYLE and FARTHING IN an Ejection Firme the Verdict was found for the Defendant Three of the Jurors had Sweet-meats in their pockets and those three were for the Plaintiffe untill they were searched and the Sweet-meats found with them and then they did agree with the other nine and gave their Verdict for the Defendant Haughton Justice It doth not appear that these Sweet-meats were provided for them by the Plaintiffe or Defendant and it doth not appear that the said three Jurors did eat of the Sweet-meats before the Verdict given And so I conceive there is not any cause to make void the Verdict given but the said three Jurors are fineable Dodderidge Justice Whether they eat or not they are fineable for the having of the Sweet-meats with them for it is a very great misdemeanour And now we cannot tell which of the Jurors the three were and because it was not moved before the Jurors departed from the Bar it is now too late to examine the Jurors for we do not know for which three to send for The nine drew the three which had the Sweet-meats to their opinions and therefore there is no cause to stay Judgment But if the three Jurors had drawn the nine other to them then there had been sufficient cause to have stayed the Judgment but as this case is there is no cause And therefore per Curiam Judgment was given for the Defendant according to the Verdict Trin. 21 Iacobi in the Kings Bench 449. NOte It was vouched by George Crook and so was also the opinion of the whole Court That by way of Agreement Tythes may pass for years without Deed but not by way of Lease without a Deed. But a Lease for one year may be of Tythes without Deed. Trin. 21 Iacobi in the Kings Bench. 450. THe Plaintiffe recovered in Debt in the Kings Bench and a Capias ad Satisfaciendum was awarded and immediately upon the awarding of the Capias the Defendant dyed Quaere if in such case an Action of Debt lieth against the special Bail The Executors having nothing a Scire-facias doth not lie against the Bail And in the Common-Pleas in that case the Court was divided two Judges being against the other two Judges Ideo quare Trin. 21 Jacobi in the Kings Bench. 451. LEONARD's Case IN a Scire facias to have Execution of a Recognizance the Case was That a special Supplicavit for the Peace was directed out of the Chancery to A. and B. Justices of the Peace and to the Sheriffe of the County of c. to take a Recognizance of L. M. N. for the Peace and good behaviour and the
and for these causes he prayed Judgment for the Defendant Observe Reader the Argument of Calthrope he doth not speak to the point where part of the thing or Contract is upon the Sea and part upon the Land as it was urged by Andrews who argued on the other side The Case was adjourned Pasch 3 Caroli rot 362. in the Kings Bench. 475. IT was cited to be adjudged That if a man purchase the next Avoidance of a Church with an intent to present his son and afterwards he present him that it is Symony within the Statute Pasch 3 Caroli in the Kings Bench. 476. SUTTON the Chancellor of Gloucester's Case IN the Case of Sutton who was Chancellor of Gloucester and put out of his place for insufficiency in the Ecclesiastical court Trotman moved for a Prohibition to the Spiritual Court and said that the Bishop had power to make his Chancellor and he only hath the Examination of him and the allowance of him as it is in the Case of a Parson who is presented to the Bishop and said that if his sufficiency should be afterwards reexamined it would be very perilous Doddridg Justice If an Office of Skill be granted to one for life who hath no skill to execute the Office the grant is void and he hath no Frank-tenement in it A Prohibition is for two causes First to give to us Jurisdiction of that which doth belong unto us And secondly when a thing is done against the Law and in breach of the Law then we use to grant a Prohibition Jones Justice Brook had a grant of the Office of a Herald at Arms for life and the Earl Marshal did suspend him from the execution of his Office because he was ignorant in his profession and full of Error contrary to the Records and it was the opinion of the Justices that because he was ignorant in such his Office of Skill that he had no Freehold in the Office In the Principall Case the Prohibition was denyed And afterwards Sutton was put out of his Office by Sentence in the Spiritual Court for his insufficiency Pasch 3 Caroli in the Kings Bench. 477. SYMM'S Case TWo men having speech together of John Symms and William Symms one of them said The Symmses make Half-crown peeces and John Symms did carrie a Cloak-bag full of clippings And whether the Action would lie was the Question because it was incertain in the person For he did not say these Symmses but The Symmses Like unto the Case where one Farrer being slain and certain persons being Defendants in the Star-Chumber one having speech of them said These Defendants did murder Farrer and it was adjudged that the Action would not lie for two causes First because the words These was uncertain in the person And secondly it was incertain in the thing For it might be that they had Authority to do it as in Mills Case 13 Jac. in the Kings Bench Thou hast Coyned Gold and art a Coyner of Gold Thirdly a Cloakbag of clippings that is also uncertain for it might be clippings of Wooll or other things or it might be clippings of Silver from the Goldsmith For the Goldsmith that maketh Plate maketh clippings And fourthly It is not shewed any certain time when the words were spoken And for these causes it was adjudged that the Action would not lie Pasch 3 Caroli in the Kings Bench. 478. WHITTIE and WESTON'S Case AN Action of Debt was brought upon the Statute of 2 E. 6. and the Plaintiff declared That at the time of the Action brought he was Parson of Merrel and that Weston the Defendant did occupie such Lands and sowed them with corn Anno 21 Jac. and that he did not fet forth his Tythe-corn c. The Defendant pleaded in barr of the Action That W. W. Prior of the Hospital of St John of Jerusalem was of the Order of Hospitalers c. and that he held the said Lands free from the payment of Tythes and that the Priory came by the Statute of 32. H. 8. to the King By vertue of which Statute the King was seised thereof and that the same descended to Queen Elizabeth who granted the Lands unto Weston to hold as amply as the late Prior held and that he was seised of the Lands by vertue of that grant Et propriis manibus suis excolebat Upon this Plea the Plaintiff did demurr in Law Noy argued for the Plantiff There are three points in the Case First If these Lands the possessions of the Hospitalers of St John which they held in their own hands were discharged of Tythes Secondly If there be any thing in the Statute of 32 H. 8. by which the Purchasor of the King should be discharged Thirdly Admitting that it shall be a discharge if the Defendant hath well entitled himself to such discharge or Priviledg First it is not within the Statute of 31 H. 8 cap. 13. for that Statute did not extend to the Order of St John Secondly the Statute of 31 H. 8. cap. 13. doth not discharge any but what was then dissolved Thirdly The Statute of 32 H. 8 cap. 24. gives the possessions of the Hospitalers of St Johns to the King and not the Statute of 31 H. 8. Note that the Defendant did recite the branch of the Statute of 31 H. 8. cap 13. That as well the King his heirs and successors as all and every such person and persons their heirs and assignes which have or hereafter shall have any Monasterie c. or other Religious or Ecclesiastical houses or places shall hold c according to their Estates and Titles discharged and acquitted of the payment of Tythes as freely and in as large and ample manner as the said Abbots c. had or used Also he recited the Statute of 32 H. 8. cap. 7 which Enacts that none shall pay Tythes who by Law Statute or Priviledg ought to be discharged The Statute of 31 H. 8. recites that divers Abbies c. and other Religious and Ecclesiastical houses and places have been granted and given up to the King The Statute enaâ—ts that the King shall have in possession for ever all such late Monasteries c. and other Religious houses and places c. And also enacts that the King shal have not only the said Monasteries c. but also all other Monasteries c. and all other Religious and Ecclesiastical houses which hereafter shall happen to be dissolved suppressed renounced relinquished forfeited given up or by any other means come to the King and shall be deemed adjudged vested by Authority of this present Parliament in the very actual possession and seisin of the King for ever in the state and condition they now be Vi. The Statute And shall have all priviledges c. in as ample manner and form as the late Abbots c. had held or occupied c. The Question then is Whether the men of the Hospital of St John at Jerusalem are intended to be within the
also mended the high-way And for these Incertainties the Indictment was quashed Pasch 3 Caroli in the Kings Bench. 482. SAMSON and GATEFIELD's Case ERror was brought to reverse a Judgment given in the Court of Virge in an Action upon the Case where the original Process fuit a Sommons whereas it ought to have been an Attachment Pasch 3 Caroli in the Kings Bench. 483. HERN and STUB's Case IN an Action of Detinue the Plaintiff did declare upon the Bailment of a Cloak of the value of 10l. to the Defendant to be safely kept and to be redelivered unto him upon request And shewed That he did request the Defendant to redeliver it and that yet he doth detain it to his damage c. The Defendant justified the Detainer by reason of a Forain Attachment in London And said That London is an ancient City and that there is a Custom in London c. That if any one be indebted unto another that if he will enter his suit or plaint into the Counter of the Sheriff of London that a Precept shall be awarded unto a Sergeant at Mace to summon the Defendant and if he retorn Nihilâ— viz. that he hath nothing within the City by which he may be summoned and Non est inventus And if he be solemnly called at the next Court and makes default that then if he can shew that the Defendant hath goods in the hands of one within the Liberty of the City that the said goods shall be attached And if the Defendant make default at four Court-dayes being solemnly called that then if the Plaintiff will swear his Debt and put in Bail for the goods viz. That if the Debt be disproved within one year and a day or the Judgment be reversed That he he shall have Judgment for the said goods And he shewed That he entred his plaint against the now Plaintiff in the Counter of Woodstreet for the Debt of 20l. and that a Precept was awarded to a Sergeant at Mace to summon him And because he had not any thing by which he could be summoned he shewed that the now Plaintiff had goods in his the Defendants hands which were attached in his hands And that he sware his Debt and put in bail for the goods and had Judgment thereupon Upon which Plea the Plaintiff did demur in Law Ward argued for the Plaintiff There are four Reasons of the Demurrer 1. He sets forth That J. S. did levy a plaint against the now Plaintiff for the Debt of 20l. but doth not set forth expresly that he did owe him 20l. And he ought to have set down how the Debt grew due for that is traversable by the Plaintiff and now hee cannot traverse it C. 10. part 77. The generall Count in an Action upon the Case Quod cum indebitatus fuit in such a summe Super se Assumpsit without shewing the Cause of the Debt is insufficient 5 H. 7. 1. Trespass was brought for taking of a Chain of Gold The Defendant said That the Plaintiff before the trespass supposed did License him to take the same Chain and to retain it untill he paid him 200 Marks which he ought to pay him Keble took Exception because the Defendant did not alledge for what cause the 200 Marks was due which Cause the Plaintiff might traverse to which Brian acc ' 9 E. 4. 41. Trespass for taking a Bagg with Money the Defendant said That the Plaintiff was indebted unto him in a certain Summ and delivered unto him the Bagg of Money in satisfaction Littleton The plea is not good for he ought to shew how he was indebted unto him Old Entries 155 156. there in a Forraign Attachment the certainty of the Debt was expressed and averred 2. He pleads a Custom and doth not prosecute his Case according to Custom The Custom is That if the Sergeant retorn that he hath nothing within the City whereby he may be summoned And Non est inventus And at the next Court day he be solemnly demanded and make default c. And he saith That because he had nothing by which he could bee summoned but doth not say That the Officer did return that he had not any thing whereby to be summoned nor that he was not to be found nor doth he plead or say That at the next Court day he was solemnly demanded Dyer 196. b. where this Case of Forraign Attachment was there the Custom is set forth viz. That the Debt ought to be affirmed by the Oath of the party in Curia Guildhall and this was pleaded to be in Curia Vicecomit in Computatorio Also he doth not averr That he had found pledges according to the Custom and therefore the plea is insufficient because he hath not purchased the Custom 3. He sheweth that the goods were attached in the Defendants hands but he doth not shew that it was within the Liberty of the City and it might be out of the liberty of the City and all the Presidents are infra Jurisdictionem c. And the Plea of every person shall be taken strongest against the Pleader And he ought to have shewed that it was within the Liberty of the City because it is a peculiar Jurisdiction 34 E. 3. breve 789. Debt was brought in the Common Pleas the Defendant said That the Plaintiff had a Bill for the same Debt depending in the Exchequer and demanded Judgment of the Writ non allocatur for it doth not appear by the Plea that the Plaintiff or Defendant were priviledged in the Exchequer and then by the Statute of Articuli super Chart as cap. 4. it is provided That no Common plea shall be holden in the Exchequer 4 E. 4 36. a In trespass for Imprisonment the Defendant doth justifie c. there he ought to shew that the Tower of London hath priviledges c. For where a man will take advantage of a particular Priviledge and Liberty he ought to shew that he was within the Priviledge of Liberty Miâ— 2. Car-Willis was Indicted before the Justices of Northampton for frequenting of a Bawdy-house in Northampton and the Indictment was quashed for it might be within Northampton and yet out of the Liberties and Jurisdiction of Northampton 4. He doth not shew in his Plea that his Debt was a due Debt and it was pleaded Dyer 196. that it was a due Debt vi Entries 155 156. It is not enough to swear his Debt but he must sweat his Debt to be a due Debt Stone for the Defendant 1. I agree that if the Action had been brought in that Court to recover a Debt then he ought to set forth how it became due but here he pleads to bar him and not to recover and so the Debt is not traversable 5 H. 7 1. there Brian took the Exception but two Judges are against him because he brought not Debt but another Action for the Chain 9 E. 4. 41. It is good by Moile without shewing the Debt because it is by way of excuse
Lord Dyer said So in the principall Case and therefore the later Use was utterly void and shall not be raised by intendment But otherwise it had been if it had been by devise Pasch 23. Eliz. in the Common Pleas. 10. IT was holden by all the Justices of the Common Pleas That the Queen might be put out of her Possession of an Advowson by two Usurpations And she shall be put to her Writ of Right of Advowson as a common person shall be because it is a transitory thing and that the Grant of that Advowson made by the Queen after the two Usurpations should be void and that was so adjudged upon a demurrer in the point And so it is holden in 47 E. 3. 4. b. Psch 23. Eliz. in the Common Pleas. 11. AN Indenture of Covenant was made betwixt I. S. and I. D. in which I. S. did Covenant to Enfeoffe I. D. of his Manor of D. In consideration of which I. D. by the same Indenture did Covenant with the said I. S. to pay him 100 li. The Question is If I. S. will not make the Feoffment whether I. D. be bound to pay the money It was holden by the Lord Dyer Chief Justice and Justice Mead That he is not because the money is Covenanted to be paid Executory to have the Feoffment made and therefore if he will not make the Feoffment he shall not have the money As if I Covenant with one That I will marry his Daughter and he Covenants with me That for the same cause he will make an Estate to me and his Daughter and to the Heirs of our two bodies begotten of his Manor of D he shall not make it untill we are married But if I Covenant with a man That I will marry his Daughter and he Covenants with me To make an Estate to me and his Daughter if I marry another woman or if the Daughter marryeth another man yet I shall have an Action of Covenant to compell him to make the Estate because in this later Case the Covenant was made for another Cause And this difference was so taken by the whole Court 15 H. 7. 10. So if A. grant to B. all the ancient Pale and for that B. grants That he will make a new Pale it is holden in 15. E. 4. 4. by Catesby and affirmed by Littleton That if B. cannot have the ancient Pale that he shall be excused from making the new Pale But if two things are given by two Persons one for the other there if one of them detain the one the other cannot detain the other as is 9 E. 4. 20. and 15 E. 4. 2. It is holden That if one grant Tithes in Fee by one Deed and by the same Deed for the same Grant the Grantee grant to the same Person an Annuity of 20 li That if the Grantor of the Tithes enter into the Tithes yet the Grantee cannot detaine the Annuity because the grant of the Tithes is executed in him and he may have an Action for them if the other enter upon them But in the principall Case The Covenant was but Executory for the other and then if one be not performed the other shall never be performed Windham and Periam Justices conceived the contrary and therefore the case was adjourned and a demurrer in law upon it Pasch 23 Eliz. in the Common Pleas. 12. TEnant in taile the Remainder in Fee the Tenant in taile makes a Lease for life according to the Statute of 32 H. 8. and afterwards dieth without issue and before any entrie he in the remainder grants his Remainder by Fine Whether the Conusee of the Fine may enter upon the Tenant for life and avoid his Lease was the question Fenner Serjeant Hee cannot because when a Free-hold is given by Livery it cannot be defeated without Entrie As If a Parson make a Lease for life rendring rent and dieth and his successor accept the rent the lease is affirmed as it is holden in 11. E. 3. and 18. E. 4. The Case was That a man made a Lease for life the remainder in Fee Tenant for life granted over his estate and then a Formedon was brought against the Grantee and then the first Tenant for life died And by all the Justices except Littleton and divers Serjeants the Writ shall not abate if he in the Remainder hath not entred So in the principall case When he had made a Lease for life and afterwards died without issue living the Tenant for life his estate is not defeated before entrie of him in the Remainder And then when before entrie he in the Remainder grants his Remainder the Grantee shall have it but as a Remainder for so is his grant and so the estate of Tenant for life which was but voidable is made good And so was it holden by Windham and Periam Justices but Meade and Dyer Chief Justice did conceive that by the death of Tenant in taile without issue his Lease made to him for life was void and not voidable because by the death of Tenant in tail his estate out of which the estate of the Tenant for life was derived is determined and therefore the estate for life is determined also Et cessante causâ cessat effectus And Meade compared it to the Case of 21. H. 7. 12 where it was holden That if a man do make a Lease for life upon condition that if he pay unto the Lessee ten pounds at such a day that his estate shall cease Now by the performance of the Condition the estate is determined without entrie Mich. 24. Eliz. In the Common Pleas. 13. POLES Case THomas Pole one of the Clerks of the Chancery married a woman who was Executrix to her Husband and in an Action of Debt brought against them in the Common Pleas the said Pole brought a writ of Priviledg to have removed the said Action into the Chancery And by all the Justices the Writ was disallowed and the defendants ruled to answer there because the Wife was joyned in the Action with the Husband and she could not have the priviledg and therefore not the Husband And so it is adjudged by the whole Court 34. H. 6. 29. and 35. H. 6. 3. But see 27. H. 8. 20. where the case was That a man brought an Action in the Common Pleas against Husband and at the pluries returned he and his Wife were arrested into an inferiour Court veniendo to Westminster and because the Husband hath priviledg therefore his Wife shall be in the same condition But Dyer said That the reason there was because the Wife came in aid of her Husband to follow his suit And therefore it is not like the principall Case at the Bar. Mich. 24. Eliz. in the Common Pleas. 14. IN Debt upon a Bond of Forty pound for the Payment of Twenty pound at a Day and Place certain The Defendant pleaded That he had paid the said Twenty pound according to the Condition upon which they are at Issue and at
24. Eliz. in the Kings Bench. 19. IN an Action upon the Case upon a Promise The consideration was Where I. S. had granted a Term to I. D. That afterwards upon the request of I. S. I. D. did make to W. an Estate for four years upon which W. brought his Action And after Verdict it was moved in stay of Judgement that there was no good consideration and a difference taken where the Promise was upon the Grant and where afterwards If it were before then the Condition was good but if it were afterwards it was not good And it was adjudged That the Plaintiffe Nihil capiat per billam Pasch 24. Eliz. in the Kings Bench. 20. AN Action upon the Case upon a Promise was The Consideration was That in consideration that the Plaintiffe Daret diâ—m solutionis the Defendant Super se assumpsit and because he doth not say in facto that he had given day It was adjudged that no sufficient Consideration was alledged But if the Consideration were Quod cum indebitatus c. the same had been a good Consideration without any more for that implies a Consideration in it self Pasch 24. Eliz. in the Kings Bench. 21. IT was said by Cooke That the Chancellor or any Judge of any of the Courts of Record at Westminster may bring a Record one to another without a Writ of Certiorare because one Judge is sufficiently known one to the other as 5. H. 7. 31. where a Certificate was by the Chancellor alone and to this purpose is 11. H. 4. But that other Judges of base Courts cannot do nor Justices of the Peace as 3. H. 6. where the certificate by Suitors was held void Pasch 25. Eliz. In the Common Pleas. 22. SKIPWITH'S Case IT was found upon a speciall verdict in an Action of Trespass that the place where c. was Copy-hold land And that the Custome is That quaelibet foemina viro cooperta poterit devise lands whereof she is seised in Fee according to the custome of the Manor to her Husband and surrender it in the presence of the Reeve and six other persons And that I. S. was seised of the land where c. and had issue two Daughters and died and that they married husbands and that one of them devised her part to her husband by Will in writing in the presence of the Reeve and six other persons and afterwards at another day shee surrendred to the Husband and he was admitted and she died and her Husband continued the possession And the Husband of the other Daughter brought an Action of Trespasse Rodes Serjeant The Custome is not good neither for the Surrender nor for the Will for two causes One for the uncertainty of what estate shee might make a Devise and because it is against reason that the Wife should surrender to the Husband Where the Custome shall not be good if it be uncertain he vouched 13. E. 3. Fitz. Dum fuit infra aetatem 3. The Tenant saith that the lands are in Dorset where the Custome is that an Enfant may make a Grant or Feoffment when he can number twelve pence And it was holden that because it is uncertain when he can so do the Custome is not good 19. E. 2. in a Ravishment of Ward the defendant pleaded that the custome is that when the Enfant can measure an ell of cloth or tell twelve pence as before that he should be out of Ward and it is holden no good custom for the cause aforesaid 22. H. 6. 51. a. there a man prescribed That the Lord of D. had used to have Common for him and all his Tenants And because it is not shewed what Lord whether the Lord mediate or immediate it is adjudged no good custome And as to the Surrender it is against reason that the Wife should give to the Husband for a Wife hath not any Will but the Will of her Husband For if the Husband seised in the right of his Wife make a Feoffment in Fee and the Wife being upon the land doth disagree unto it saying that shee will never depart with it during her life yet the Feoffment is good and shall binde during the life of the Husband as it is holden in 21. E. 3. And therefore it is holden in 3. E. 3. Tit. Devise Br. 43. That a Feme covert cannot devise to her Husband for that should be the Act of the Husband to convey the land to himself And in the old Natura Brevium in the Additions of Ex gravi quaerela it is holden so accordingly And the Case in 29. E. 3. differs much from this Case For there a woman seised of lands devisable took an Husband and had issue and devised the lands to the Husband for his life and died and a Writ of Waste was brought against him as Tenant by the Courtesie and it was holden that it did lie and that he is not in by the Devise for the reason there is because he was in before by the Courtesie But as I conceive that Case will disprove the Surrender for in as much as he had it in the Right of his wife he could not take it in his own Right Also he took another Exception in the principal Case because that the wife was not examined upon the Surrender but none of the Justices spake to that Exception but when the Record was viewed it appeared that it was so pleaded Further He said That the devise was void by the Statute of 34. H. 8. Cap. 5. where it is said It is enacted That Wills and Testaments made of any Lands Tenements c. by women Coverts or c. shall not be taken to be good or effectual in Law And he said That this Statute doth extend to customary Lands And as to that all the Justices did agree That it is not within the Statute And as to the Statute of Limitations Andâ—rson chief Justice said That if a Lease for years which perhaps will not indure sixty years shall be taken strong this shall Anderson moved That if the Lord Lease Copyhold land by Word Whether the Lessee might maintain an Ejectione firme and he conceived not for in an Ejectione firmâ— there ought to be a Right in Fact And although it be by conclusion it is not sufficient for that the Jury or Judge are not estopped or concluded And he conceived That if Tenant at Will make a Lease for years that it is no good lease betwixt him and the Lessor but that he may well plead that he had nothing in the land Meade contrary but they both agreed That the Book of 14. E. 4. which saith That if Tenant at Will make a lease for years that he shall be a Disseisor is not Law Anderson said That the prescription in the principal Case was not good for it is Quod quaelibet foemina viro cooperta poterit c. and it ought to be that feme Coverts possunt and by the Custome have used to devise to the
Copyholder in Fee who by the Custome might surrender in Fee might make a surrender in taile without any speciall custome so to doe and he who may prescribe to make a Feoffment in Fee might make a Lease for life and it should be good quia omne majus continet in se minus Pasch 26 Eliz. In Communi Banco 27 IN a Writ of Dower the Defendant made her demand de tertia parte liberae faldae and Serjeant Gaudy moved if it were good without setting in certain for what cattell And it was held not good for if it be not of a certain number she shall not be thereof endowed no more then of a Common uncertain And if she do demand Common which is certain yet she shall not be endowed if she do not shew the certaintie of it Windham said That if the Common be uncertain that the woman shall be allowed for it But Meade said He doth not know how the allowance shall be made Pasch 25 Eliz. In the Exchequer Chamber 28 IT was holden in the Exchequer Chamber before the Treasurer and the Barons in the case of one Pelham That whereas the Queen had granted to him by Letters Patents That he should not be Bailiff Constable nor other Officer or Minister licet eligatur That if the Queen make him Sheriff of a County that he shall not be discharged by that Patent for that such Offices do not extend to Royal Offices as a grant of Amerciaments shall not extend to Amerciaments Royal. And also the making of a Sheriff is not by election but onely by denomination of the Queen So that if he have not these words besides licet eligatur per Nos he shall be Sheriff And that they said was also the opinion of Bromley Lord Chancellour Mich. 26 Eliz. In the King 's Bench. 29 IT was holden by the Court That if a man binde himself to perform the last Will of I. S. and he is made Executor that hee is bounden to pay Legacies without any demands Vide 11. E. 4. 10. a. 14. E. 4. 4. a. 20. E. 4. 28. Yet it was said That Pasch 25. Eliz. they put a difference where a man is bound to perform the last Will and when to perform the Legacies for in the later case the Law is ut suprà Hill 26 Eliz. In the Common Pleas. 30. IF I be bound that my Lessee shall take reap and carry his Corn peaceably without interruption and afterward in Harvest when he is reaping I come upon the land and say to him that he shall not reap any corn there but otherwise I do not disturb him The opinion of all the Justices was that for these words spoken by me upon the Land that I have forfeited my Bond. And yet it was urged by Serjeant Puckering That I was bound to suffer him to do three things scil to take to reap and to carry and all these things he hath done See the Case 47. E. 3. 22. where the saying to a Tenant by one Coparcener that he ought not to pay any thing to the other was a Disseisin Pasch 26. Eliz. in the Common Pleas. 31 A Man was bound in a Recognizance for his good behaviour and it was shewed that he was arrested for suspicion of Felony by a Constable and that he escaped from him to which he pleaded Not guilty Exception was taken because it was not shewed that a Felony was committed which might cause suspicion for that is traversable and per Curiam it need not for although no such felony was committed and although the arrest were tortious yet the Recognizor had forfeited his Recognizance by making an escape which is a Misbehaviour Pasch 26 Eliz. In the Common Pleas. 32 BUSHEY's Case PAul Bushey Vicar of Pancras leased his Vicarage to Doctor Clark the Glebe land and the Church and all things to the same belonging Excepting the housing reserving twenty pound rent yeerly at Lammas and Sancti Petri advincula by equall portions and if the Rent be behinde by the space of a month that then it should be lawfull for the Vicar to distrein And the Lessee was bound to peform all Covenants Articles and Agreements contained or recited within the same Indenture And 〈◊〉 rent not paid the 29 of August 25. Eliz the Vicar brought Debt upon the Bond To which the Defendant pleaded That the Rent was not demanded the 29 day of August upon which they were at issue and the Jury being ready at the Bar Walmesley said That the Enquest ought not to be taken for three causes First He hath made a lease of the Vicarage except the housing and the Plaintiff hath alledged the demand to be generall super terras glebales and hath not shewed where To that the Justices said It had been better to have said At such a gate or hedg or high-way but notwithstanding they did not allow of that Exception for if it were not well demanded it ought to be shewed of the other side The second exception was because the Enquest were all de Vicincto de Pancras and it might be that some of the Lands appertaining to the Vicarage did extend to Islington but that Exception was disallowed also The third Exception was because that the Vâ—nire facias did not well recite the Issue for the exception of the housing was left out and per Curiam it is not needfull that all be recited But if another issue then that upon which they were at issue had been recited it had not been good And afterwards the Enquest was taken and found for the Plaintiff But nothing was spoken whether there needed any demand in such case or not Pasch 26 Eliz. In the Common Pleas. 33 IF a man be presented unto a Benefice which is not above the value of six pound per annum and afterwards he is presented unto another of twenty pounds and afterwards is deprived for cause of Plurality The Ordinary must give notice to the Patron for that is at the common Law and untill Deprivation it is no Cession Trinity 26 Elizab. In the Common Pleas. 34 THROGMORTON and TERRINGHAM's Case IN a Replevin the Defendant did avow the taking of the cattell by reason that one A. held of him an Acre of land in the place where c. by fealty and sixteen shillings rent the rent payable at two Feasts of the year c. And the Plaintiffe said that he held the same acre and two others of the Avowant by fealty and sixteen shillings payable at one day absque hoc that he held the said 〈◊〉 by the services payable at two dayes c. Snagg The tenure cannot be traversed and 21 E. 4 the last case is the same case where the Avowry is made for 12 pence at four days and the Plaintiff said that he held by twelve pence payable at one day without that that he held by the Services payable at four dayes And there it is holden that the same cannot be an Encroachment because they
Assize brought against him the same shall be recowped in damages because that which was done was for his Commodity also it is incident to one who hath a way for to mend it All Prescriptions at the first did begin by Grants And if one grant to me his trees the Law saith That I may come upon the Land to fell them and carry them away off from the Land and I shall not be a Trespassor And by 9. E. 4. and Perkins If one grant to me liberty to lay a Conduit Pipe in his Land I may afterwards mend it toties quoties it shall want mending 32. E. 3. If one grant to me a way if he will interrupt me in it I may resist him and if he dig Trenches in the way to my hinderance in my way I may fill them up again The books of 12 13. H. 8. are not adjudged If Lessee for years be of a Meadow he may dig to avoid the water and may justifie so doing in Waste brought against him But it was said That in that Case the Lessee hath an interest in the soil so hath not he who claims the way in this Case Clenche Justice held That he could not dig the Soile Then the Defendant demanded What remedy he should have Suit Justice If he went that way before in his shooes let him now pluck on his boots Gawdy The pleading is not good for he saith That he could not use his way so well as before which is not good but he ought to plead that he could not use the way at all Mich. 28 29. Eliz. in the Kings Bench. 58 IN an Ejectione firme The party ought to set forth the number of the Acres for although he give a name to the Close as Green Close or the like it is not sufficient because an habere facias seisinam shall be awarded But in Trespasse the same may be Quare clausum suum fregit c. without naming the number of the Acres And so it was said it was adjudged in a Shropshire Case Mich. 28 29. Eliz. In the Kings Bench. 67. IN an Action upon the Case because that the Defendant had made a Gate in one Towne for which he could not go to his Close in another Town Cook took Exception that the Writ was Vi armis and it was agreed per curiam that for that cause it was not good Also the Visne was of one Towne only whereas it should have been of both for he said That in Hankford and Russels Case The Nusance was laid in one Town per quod his Mill in another Town could not grinde and upon Not guilty pleaded the Visne came from one Town only and it was adjudged that it was not good Mich. 28 29. Eliz. in the King Bench. 68 JOHN JOYCE'S Case AN Action upon the Case was brought against John Joyce Inn-keeper of the Bell at Maidstone in Kent for not scowring of a Ditch which ran betwixt the house of the said John Joyce and of another man and Judgement was given for the Plaintiffe against the Defendant Joyce and a Writ of Error was brought to reverse the Judgement and divers Errors were assigned The first Error which was assigned was That the Plaintiffe doth prescribe That all the Inhabitants of the Bell c. had used to scowre the Gutter c. And it was said That that was no good forme of prescription as in 12. H. 4. 7. Br. Presâ—ription 16. Where the Plaintiffe said That the Defendant omnes alii tenuram illam priushabentes mundare debuere consuevere talem fossatam and therefore the Writ was abated for it ought to have been quod ipsi praedecessores sui de tempere cujus contrarium c. Or that such a one and his Ancestors or Predecessors whose Estate the Defendant hath c. Also if a Copy-holder prescribe That he and all his Tenants tenementi praedict ' have used to have estovers in such a Wood c. it is not good but he ought to prescribe in the Manor The second Error was That the Prescription was uncertain for it is That all Tenants c. which extendeth to Tenants in Fee in Taile for Life or years and the Prescription is the foundation and ground of the Action and therefore it ought to be certain As if one make Title for entry for Mortmaine he ought to shew that he hath entred within the year and day 7. E. 6. Br. Prescription 69. It is holden That Tenant for years or at will cannot prescribe for common for the prescription ought to be alledged in the Tenant of the Free hold or to alledge a Corporation or the like In reason Tenant for years cannot prescribe for his Estate hath a certain beginning and a certain end therefore it is not of long continuance The third Error was That the Plaintiffe hath not alledged That the Defendant was Tenant at the time of the Action brought as in the Case of Clerkenwell and Black-Friâ—rs where the Plaintiffe brought his Action upon the Case for that the Defendant had turned the course of the water of a Conduit Pipe and the Declaration was Quod cum querens seisâ—â—us existat and doth not say existitit and so the Plaintiffe was not supposed Owner of the Scite and Messuage of Black-Friers but only at the time of the Action brought and not at the time of the diversion of the Water But Judgement was given and Error brought upon it The fourth Error was Because it was for scowring a Gutter betwixt the houses c. and doth not say That the house was contigue adjacens to his house 22. H. 6. Where Cattell escape into the Plaintiffs Close and thereupon Trespasse brought the Defendant said That it was for want of Fence of the Plaintiffs Close and it was holden no Plea if he do not say that the Plaintiffes Close was adjacens Clench Justice The Prescription ought to be That such a one and all those whose Estate he hath c. have used for them and their Farmors to repair the Gutter Cowper When the Prescription runs with the Land then he may prescribe in the Land as all those who have holden such Lands have used to scowre such a ditch and the same is good Gawdy Justice If he had said All those who had occupied such a house had used to scowre it had been good Godfrey If a man will alledge a Prescription or Custome he ought to set forth That it was put in use within time of memory In the Prescription of Gavelkind the party ought to shew that the Land is partable and so hath been parted Also he prescribed That omnâ—â— illi qui tenuerunt and doth not alledge a Seisin but by way of Argument Suit Justice held the pleading not good because the words were not contigue adjacens And for these causes the first Judgment was reversed Mich. 28 29. Eliz. in the Kings Bench. 69 GOMERSALL and GOMERSALLS Case IN an Action of Account the Plaintiffe charged
not have an Action without cause and if he were convicted then there is no cause of Action and he hath not shewed whether he was convicted or acquitted And he said that there was no difference betwixt an Action on the Case and a Conspiracie in such case but onely this That a Conspiracy ought to be by two at the least and an Action upon the Case may lie against one and he said that in both he ought to shew that he was legitimo modo acquietatus See 11. H. 7. 25. An Action of Conspiracy founded upon the Statute of 8. H 6. Cap. 10. where it is grounded upon a Writ of Trespasse brought against one onely But such a Conspiracy which is grounded upon an Indictment of Felony must be against two at the least for the same is an Action founded upon the Common Law Mich. 28 29. Eliz. In the Kings Bench. 92. BONEFANT against Sir RIC. GREINFIELD BOnefant brought an Action of Trespasse against Sir Richard Greinfield The Case was this A man made his Will and made A. E. I. O. his Executors and devised his Lands to A. E. I. and O. by their speciall names and to their heirs and further willed that his Devisees should sell the Land to I. D. if he would give for the same before such a day an hundred pound and if not that then they should sell to any other to the performance of his Will scil the payment of his debts I. D. would not give the hundred pound One of the Devisees refused to entermeddle and the other three sold the Land and if the Sale were good or not was the question Cooke The Sale is not good 1. Let us see what the Common Law is At the Common Law it is a plain case that the Sale is not good because it is a speciall trust and a joynt trust and shall never survive for perhaps the Devisor who is dead reposed more confidence in him who refused then in the others Vide 2 Eliz. the Case of the Lord Bray who covenanted That if his son marry with the consent of four whom he especially named viz. A. B. C. and D. that then he would stand seised to the use of his son and his wife and to the heirs of their two bodies begotten One of the four was attainted and executed The other did consent that he should marry such a one he married her yet no estate passed because the fourth did not consent and it was a joynt trust 38. H. 8. Br. Devises 31. A man willeth that his Lands deviseable shall be sold by his Executors and makes four Executors all of them ought to sell for the trust which is put upon them is a joynt Trust But Brook conceiveth that if one of them dieth that the others may sell the Lands The Case betwixt Vincent and Lee was this A man devised That if such a one dieth without issue of his body that then his Sons in law should sell such Lands and there were five sons in law when the Testatour died and when the other man died without issue there were but three sons in law and they sold the Lands and it was holden that the Sale was good because the Land was not presently to be sold Also he said that in the principall Case here they have an Interest in the Lands and each of them hath a part therefore the one cannot sell without the other But if the devise were that four should sell they have not an Interest but onely an Authority As to the Statute of 21. H. 8. Cap. 4. he said that that left our Case to the Common Law For that Statute as it appeareth by the preamble speaks onely of such Devises by which the Land is devised to be sold by the Executors and not devised to the Executors to sell And goes further and saith Any such Testament c. of any such person c. therefore it is meant of such a devise made unto the Executors and then no Interest passeth but onely an Authority or a bare Trust But in our Case they have an Interest for he who refused had a fourth part Then when the other sell the whole the same is a disseisin to him of his part If a Feoffment be made to four upon condition that they make a Feoffment over and two of them make the Feoffment it is not good Also the words of the Will prove that they have an Interest for it is that his Devisees shall sell c. Laiton contrary And he said That although the Devise be to them by their proper names and not by the name Executors yet the intent appeareth that they were to sell as Executors because it was to the performance of his last Will and that may be performed as well by the three although that the other doth refuse and the Sale of the Land doth referre to the performance of his Will in which there are divers Debts and Legacies appointed to be paid 2. H. 4. and 3. H. 6. A man devised his Lands to be sold for the payment of his debts and doth not name who shall sell the same the Lands shall be sold by his Executors 39. Ass A Devise is of Lands unto Executors to sell for the performance of his Will the profits of the Lands before the Sale shall be assets in the Executors hands 15. H. 7. 12. is That if a man devise that his Lands shall be sold they shall be sold by his Executors Also if I devise that my Executors shall sell my Lands and they sell it is an Administration and afterwards they cannot plead that they never were Executors nor never administred as Executors And although there are divers Authorities to be executed yet it is but one Trust 39. Ass 17. is our very Case A man seised of Lands deviseable devised them to his Executors to sell and died having two Executors and one of them died and the other entred and sold the Land and the Sale was good 49. E. 3. 15. Isabell Goodcheapes Case Where a man devised that after an Estate in taile determined that his Executors should sell the Lands and made three Executors and one died and another refused the third after the taile determined sold the Land and the Sale was holden good and that it should not escheate to the Lord for the Land was bound with a Devise as with a Condition as to the Statute of 21. H. 8. Cap. 4. the preamble of the Statute is as it hath been recited and although for exmaple the Lands in use are only put yet the Statute is not tied only to that As in the Statute of Collusion of Malbridge Examples are put only of Feoffments and Leases for years yet there is no doubt but that a Lease for life or a gift in taile to defraud the Lord is within the Statute So the Statute of Donis Conditionalibus puts onely three manner of estate tailes But Littleton saith That there are many other estate tailes which are
not recited in the Statute So here our Case is within the Mischiefe of the Statute of 21. H. 8. Cap. 4. although it be not within the Example So the Statute of West 1. is That if the Gardien or Lessee for years maketh a Feoffment in Fee Tam Feofator quam feofatus habeantur pro disseisoribus yet 22. Ass is That if Tenant by Elegit make a Feoffment it is within the Statute Also it may be a doubt Whether Land devisable onely by custome bee intended in the Statute of 21. H. 8. Cap. 4. And whether Land devisable by the Statute of 32. H. 8. be within it or not viz. If a Statute of a puâ—sne time shall be taken by Equity within a more Ancient Statute and I conceive it may as 12. H. 7. the Statue of 4. H. 7. which sayes that the heire of Cestuy que use shall be in Ward shall extend to the Statute of Praerogativa Regis for if he be in Ward to the King he shall have Prerogative in the Lands to have other Lands by reason thereof Gaudy Justice did rely very much upon the word Devisees viz. that they have an Interest and that the Sale was not good Suit Justice They are both Executors and Devisees of the Lands Devisees of the Lands and Executors to performe the Will Cook he who refused to sell cannot waive the Freehold which is in him by a refusall in pars as 7. H. 2. and 7. E. 4. but ought to waive it in a Court of Record therefore he hath an Interest remaining in him Clenche Justice What if he had devised the Lands to four and made one of them his Executors and willed that he should sell could not he sell All the Court agreed that he might Cook When a man deviseth that his Executors shall sell the Fee descends to the heir yet they may sell that which is in another but the same is not like to our Case It was adjourned Mich. 28 29. Eliz. in the King 's Bench. 93. A Judgement was given upon a Bond for four thousand pound And the Scire facias was sued for three thousand pound and he did not acknowledge satisfaction of the other thousand pound Haughton moved That the Scire facias should abate As if a man brings Debt upon a Bond of twenty pound and shews a Bond for forty pound and doth not acknowledge satisfaction for 20l l it is not good The Justices would advise of it And at another day it was moved againe Whether the Scire facias was good because it doth recite Quod cum nuper such a one recuperasset four thousand pound and doth not shew in what Action or at what day the Judgment was given or the Recovery had Piggot That is not material for such is the Form in an Audita querela or Redisseisin As to the other That he doth not acknowledge satisfaction as in the Case before cited by Haughton which Case is in 1. H. 5. That is not like to an Execution for an Execution is joint or severall at the will of him who sues it forth as in 19. R. 2. Execution 163. hee may have part of his Execution against one in his life time and if he dieth other part against his Heir or Executor Note the Execution was of the whole but because the Defendant had not so much he had but part against him who had no more and therefore of the residue he had Execution against the Heir Gawdy Justice I conceive that he cannot have an Execution unlesse he acknowledge Satisfaction There is no difference as to that betwixt the Action of Debt upon a Bond and a Scire facias and the intendment viz. that it shall be intended that he was paid because he sued but for Three thousand Pound will not help him Piggot as to that vouched a Case out of 4 5. Mary in Dyer which I cannot find Suit Justice said That if the Defendant in the Scire facias say nothing by such a day that Judgement should be entred for the Plaintiffe Quod executio fiet Mich. 28 29. Eliz. in the Kings Bench. 94 JUdgement was given against an Infant by default in a reall Action of Land And a Writ of Error was thereupon brought and it was argued That it is not error for in many cases an Infant shall be bound by a Judicious act as 3. E. 3. Infant 14. Where an Infant and a Feme Covert bring a Formedon and the woman was summoned and severed And it was pleaded That where the Writ doth suppose the woman was Sole she was Covert and Judgment was demanded of the Writ and that the Infant could not gainsay it but confessed it this Confession of the Plea which abated his Writ was taken And 3. H. 6. 10. Br. Saver Default 51. An Infant shall not save his default for he shall not wage his Law See there that the Default shall not be taken against him therefore that book seems rather against it then for it Vide 6. H. 8. Br. Saver Default 50. That Error lieth upon a Recovery by default against an Infant otherwise if it be upon an Action tried so is 2 Mar. Br. Judgment 147. It was said That a generall Act of Parliament shall bind an Infant if he be not excepted The Justices did seem to incline That if Judgement be given by default that it shall bind an Infant but there was no rule given in the Case Mich. 28 29. Eliz. in the Kings Bench. 95 A Clark of the King's Bench sued an Officer of the Common Pleas and he of the Common Pleas claimed his Priviledge and could not have it granted to him for it is a generall rule That where each of the persons is a person able to have Priviledge he who first claimes it viz. the Plaintiffe shall have it and not the Defendant As if an Atturney of the Common Pleas sueth one of the Clarks of the Kings Bench yet he of the Kings Bench shall not have Priviledge although the Kings Bench be a more high Court because the other is Plaintiffe and first claimeth it Mich. 28 29. Eliz. in the Kings Bench. 96 AM Action upon the Case upon a Promise was brought but the Case was so long that I could not take it But in that Case Tanfield who argued for the Defendant said That it is not lawfull for any man to meddle in the cause of another if he have not an Interest in the thing for otherwise it will be Maintenance But if a Custome be in question betwixt the Lord of the Manor and Copy-holder all the other Copy-holders of the Manor may expend their money in maintenance of the other and the Custome and the Master may expend the money of the servant in maintenance of the servant So he in the Remainder may maintain him who hath the particular Estate Maintenance is an odious thing in the Law for it doth encrease troubles and Suites He argued also How that Bonds Obligations and Specialties might be
or make mention of it And the Statute of 32. H. 8. Cap. 32. sayes That the Writ shall bee devised upon his or their Case or Cases If one bring a Writ upon the Statute of 31. H. 8. It is not necessary to shew of what estate he is seised but de haereditate generally But upon 32. H. 8. he ought to shew of what estate viz. for years or for life As it was in the Case where Sir Anthony Cook and Temple and Wood were parties which Case is in Bendloes Reports Mich. 7. 8. Eliz. which was a great Case twice stood upon and argued And the reason there is given That every Case is not within the Statute and if at the common Law and not within the Statute the Writ shall not be grounded upon the Statute For in the Case before they might have Partition at the common Law as one Co-parcener against the Alienee of the other Co-parcener may have Also he said That severall Judgements are to be given as the Case is upon the severall Statutes for the Judgement upon the first Statute of 31. H. 8. of Inheritances is Sit firma partitio in perpetuum but upon the Statute of 32. H. 8. it is not so for Judgment given upon that Statute shall not bind him in the Reversion for there is a Proviso in the Statute in the end of it That Partition made by force of that Statute shall not be prejudiciall or hurtfull to any persons other then such who be parties to the said Partition their Executors or Assignes But here it is observed That by intendment he cannot have knowledge of his estate Answ That is at his perill For if he cannot have knowledge of his estate there cannot be any Partition upon any of the Statutes If he will have benefit of the Statute he ought to shew that he is within the Statute and if he cannot shew it then it must remaine at the common Law But it hath been objected that we have confessed the Declaration to bee good because we have appeared and pleaded I answer That if the Declaration want substance it shall never bee made good by Plea or Confession But if it want circumstance that perhaps may bee made good by pleading or confession Tanfield contrary Two principall things are alleadged for Errour That the Declaration is uncertaine in the Estate and that it is uncertaine in the Statute I may know my own Estate but not the Estate of my Companion for it is uncertain and he may secretly change it when he pleaseth But then Cook said It must remaine as at the common Law Itane Then farewell Statute for it may easily be defrauded and no use of it for if I cannot know the Estate I cannot have an Action upon the Statute but our Case is better for our Case is that recusat facere partitionem contra formam Statuti in hoc casu provisam and that is according to the Statute for be the Estate an Estate of Inheritance Free-hold or Lease for Years we leave it indifferent to be referred to the consideration of the Law and according as our Case shall fall out Also it is but an Incertainty and you have pleaded to it and therefore it is no Error but I grant that if it were matter of substance that it were Error Yet Fitz. Nat. Br. 21. d. In a Writ of Entrie Sur disseisin if the Originall Writ want these words viz. Quam clamat esse jus haereditatem suam If the Tenant do admit of the Writ and plead to the Action and loseth he shall not assigne the same for Error because he hath admitted the Writ to be good by his Plea So in Detinue of Charters concerning Lands if the Plaintiffe in his Count or Declaration doth not declare the certainty of the Land c. if the Defendant doth admit of the Count or Declaration and plead the Declaration is made good As to the Judgement If the word Inperpetuum be in it either in the one Case or in the other it shall be construed to be but during the Estate In a Writ of Partition there are two Judgements the first That Fiet Partitio Secondly When the Partition is made and returned the Judgement is That stet firma stabilis Partitio Gawdy Justice The Writ is to be devised upon his or their Case or Cases therefore the Party ought to shew his Case in speciall and what Estate he hath And it is no answer that he cannot know the Estate of the Defendant for in a Precipe at the common Law he ought to take notice of the Estate of the Tenant or otherwise his Writ shall abate for the misprision of it for if he bring it against a Termor it is not good And if the Statute of 31. H. 8. had only been made and not the Statute of 32. H. 8. If he had brought a Writ of Partition upon the Statute he ought to have shewed that he had an Estate of Inheritance against whom he brought the Writ Suit Justice agreed with Tanfield in the whole Gawdy was strongly of the other side That he ought to shew within the purview of which Statute he was and if he will enable himself by Law to bring the Writ he must enable himselfe to be within the Law And he said That Temples Case was adjudged as it was accordingly vouched by Cook before Mich. 28 29. Eliz. in the King 's Bench. 98 DENNIE and TURNER's Case AN Action was brought upon the Statute of 5. Eliz. for Perjury and the Plaintiffe did declare That where an Action of Debt was brought Hill ultimo praeterito 27. Elizabeth whereas in truth the Action in which he was perjured was Hill 28. Eliz. And so the recitall did misse the Record Bartlet argued upon the Case put in Leicester and Heydons Case in Plowdens Commentaries where time place and number ought to be observed otherwise all is void also he said That if the party should recover here upon a Perjury committed upon a Record of 27. Eliz. and should also recover in another Action upon the Statute of 5. Eliz. for a Perjury in an Action begun 28. Eliz. that he should be double charged Cook He cannot bee double charged for it is betwixt the same Parties and in the same Cause and only a Circumstance is mistaken Clench Justice It is needfull to shew in what Action the first Perjury was committed for if hee say in Trespasse whereas in truth it was in Debt all is naught Gaudy Justice If no Action be alledged he cannot sue upon the Statute of 5. Eliz. But the Case was upon a speciall Verdict and the Verdict did find that the Action was brought at another time then any of the Parties had alledged And that Variance was first found by Verdict and no mention made of it before and therefore Cook said it was void for he said That by the book of 22. Ass 17. The Jury cannot find any other thing then the Parties have alledged
For there the Jury found a dying seised after Judgement in a Recovery whereas a dying seised was alledged and did not say after a Recovery Mich. 28 29. Eliz. in the Kings Bench. 99 EGLINTON and AUNSELL'S Case IN an Action upon the Case for Words the words were these Thou art a Cosening Knave Crowner and hast cosened many of thy Kindred of their Lands Cook It is adjudged That Cosener will bear no Action for the words are too generall And the word Cosener doth not go to the Office in the Principall Case also the word Cosening is a word abused 30. H. 8. Br. Action upon the Case 104. False perjured man bears an Action but false man without Perjured will bear no Action and is nothing else but false and fraudulent There was a Case as Cook said betwixt Osborne and Frittell You did robb me and took away my Evidences and a Sub pena And it was ruled That no Action did lie for them And there it was holden That the word And was a Copulative Kirâ—yâ—'s Case Thou art a crafty cosening Knave and hast cosened many of thy Kindred Adjudged not Actionable Snagg Serjeant contrary That the Action lieth for he said That a Crowner is sworn to do his Office and if he be false and deceitfull in his Office then he is forsworn and the word And here begins a new sentence and doth not expound the precedent words as the words because or in that c. Clench Justice If the word Cosener had been left out it had been a cleer Case that the words would not have born an Action And if one do call him cosening Crowner it is cleer the words are Actionable Gaudy Justice We are to go strongly against these kind of Actions If the words Cosening shall go and extend to the word Crowner then cleerly an Action doth lie in respect of the Office And then if And and all the subsequent words had been left out yet the Action would lie Suit Justice If there were words sufficient before the word And to maintain an Action the subsequent words shall not overthrow those that went before But if the words had been Thou art a Cosening Knave Crowner in cosening of thy Kindred the Action had not been maintainable but the word And is not a word explantory as the word in is The better Opinion of the Court was That the words were not Actionable Mich. 28 29 Eliz. in the Kings Bench. 100 A Man brought an Action upon the Case for speaking these words of him viz. He hath aided Pirats contrary to the Lawes of the Realme and against a Proclamation in that behalfe Snag said That the words are not Actionable because there wants the word Scienter for an honest man may unwittingly do so And if a man chargeth one in an Action upon the Statute of 5. Elizabeth and declare that he said That he was perjured contrary to the forme of the Statute hee also ought to say That hee did it willingly and corruptly Cook True if a man bring an Action upon the Statute of 5. Elizabeth But if he saith Such a one is a perjured man generally an Action upon the Case will lie without saying willingly and corruptly Also those words viz. Contrary to the Lawes of the Realm do imply Scienter for if it were not Scienter it could not be contrary to the Lawes of the Realme Clenche Justice I conceive that the word Scienter is a materiall word in this Case and vouched the Lord Shandoes Case where one said That he was a maintainer of Theeves and it was adjudged that the Action would lie It was one Sidenhams Case Where one said That a Robbery was done and that such a one smelt of it and an Action was brought for the words and adjudged That an Action would lie And the words here are as forcible as if he had said Scienter and the Case was adjourned for the search of presidents untill the next Terme Mich. 28 29. Eliz. in the Kings Bench. 101 IF two men be partners of Merchandizes in one Ship and one of them appoints and makes a Factor of all the Merchandizes It was moved by Godfrey and not denyed by the Justices That both of them may have severall Writs of Account against him or they may joine in one Writ of Account if they please Quaere of that Mich. 28 29. Eliz. in the Kings Bench 102 A Man made a Contract with another man when he dwelt in the City of London and afterwards he who made the Contract went from the City and dwelt within the cinque Ports and he being afterward impleaded in the Kings Bench upon the Contract claimed the priviledg of the cinque Ports which according to 12. E. 4. is That those of the cinque Ports shall not be sued elswhere then within the cinque Ports Suit Justice said That that was true for any matter or cause arising within the cinque Ports But otherwise if a man do enter upon a Bond of One hundred or One thousand Pound and then go and dwell in the cinque Ports perhaps so the Obligee might lose his Debt And it was adjudged That the Defendant should not have Priviledge Mich. 28 29. Eliz. in the Kings Bench. 103. Sir JERVIS CLIFTON's Case IN a Quo Warranto The Information was That where the Defendant was seised of a Mannor and of a House within it That he claimed to have a Court or View of Frankpledge infra messuagium praedictum and further it was that Sine aliqua Concessione sive authoritate usurpavit Libertates praedictas The Defendant pleaded That Non usurpavit Libertates praedict ' infra Messuagium praedictum modo forma Piggot The Plea is not good for the naturall Answer to a Quo Warranto is either to claime or disclaime and he doth do neither of them And if a man will tender a generall issue he ought so to tender it as the Nature of the Action doth require That he was never seised after time of memory is no plea in Rescous In Debt rein arere is no plea but he ought to answer to the Debet The speciall matter alledged in the Action ought to be answered and the generall not to be pleaded as it is pleaded here Non usurpavit c. as in 21. E. 3. Detinue of Charters was pleaded in a Writ of Dower and she said That such a one was seised and did enfeoffe her and her Husband and so the Deeds did belong unto her The Partie shall not traverse that they did not belong unto her but must answer unto the especiall matter viz. the Feoffment Also he said Quod non usurpavit c. infra Messuagium praedictum where he ought to have said Infra Manerium praedictum An Account was brought upon a Receipt for seven years and the Defendant pleaded to two of the years and issue was joyned upon it And it was adjudged error Godfrey He ought to say Non usurpavit Libertates praedictas nec earum
here is not mis-joyned for if the Counties could joyne the issue were good but because that the Counties cannot joyne it cannot be well tried But the issue it selfe is well enough Windham and Rodes were of the same opinion that it was not helped by the Statute but Periam doubted it Anderson said That if an issue triable in one Countie be tried in another and judgement given upon it it is errour And afterwards Lutrich the Atturney said That it was awarded that they should re-plead Nota quia mirum for 1. The Statute of 32. H. 8. Cap. 30. speaks of mis-joyning of processe and mis-joyning of issues and admit that this case is not within any of those clauses each of them being considered by it selfe yet I conceive it is contained within the substance and effect of them being considered together Also I conceive That it is within the meaning of both Statutes viz. 32. H. 8. Cap. 30. and 18. Eliz. Cap. 14. for I conceive the meaning of both the Statutes was to oust delayes circuits of actions and molestations and that the partie might have his judgement notwithstanding any defect if it were so that notwithstanding that defect sufficient title and cause did appeare to the Court. And here the Plaintiffe hath sufficient cause to recover If any of the points of the issue be found for him For if it bee found that the matter and substance of the oath be found true which might be tried well enough by those in London the Plaintiffe hath cause to recover Wherefore I conceive that the verdict in London is good enough and effectuall And note That Rodes said that hee was of Councell in suh a case in the Kings Bench betwixt Nevell and Dent. Mich. 28 29. Eliz. in the Common Pleas. 128 IN an Action of Trespasse the Defendant pleaded that at another time before the Trespasse he did recover against the same Plaintiffe in an Ejectione firme and demanded judgement And the opinion of the whole Court was That it is a good plea primâ faciâ— and that the possession is bound by it for otherwise the recovery should be in vaine and uneffectuall And Anderson chiefe justice said That if two claime one and the same Land by severall Leases and the one recovereth in an Ejectione firme against the other that if afterwards the other bring an Ejectione firme of the same Land the first recovery shall be a barre against him Rodes said That hee can shew authority that a recovery in an Ad terminum quem praeteriit shall bind the possession Mich. 28 29. Eliz. in the Common Pleas. 129 IN Trespasse the Defendant did justifie as Bailiffe unto another The Plaintiffe replied that he took his cattell of his own wrong without that that he was his Bailiffe Anderson chiefe Justice If one have cause to distreine my goods and a stranger of his own wrong without any warrant or authority given him by the other take my goods not as Bailiff or servant to the other And I bring an Action of trespasse against him can he excuse himself by saying that he did it as my Bailiffe or Servant Can he so father his mis-demeanours upon another He cannot for once he was a trespasser and his intent was manifest But if one distrein as Bailiffe although in truth he is not Bailiffe if after he in whose right he doth it doth assent to it he shall not be punished as a trespassour for that assent shall have relation unto the time of the distresse taken and so is the book of 7. H. 4. And all that was agreed by Periam Shuttleworth What if hee distraine generally not shewing his intent nor the cause wherefore he distrained c. ad hoc non fuit responsum Rodes came to Anderson and said unto him If I having cause to distrain come to the Land and distraine and another ask the cause why I do so if I assigne a cause not true or insufficient yet when an Action is brought against me I may avow or justifie and assigne any other cause Anderson That is another case but in the principall case clearly the taking is not good to which Rodes agreed Mich. 28 29. Eliz. in the Common Pleas. 130 HOODIE and WINSCOMB'S Case IN an Attaint brought by Hoodie against Winscombe c. One of the Grand Jury was challenged because he was a Captain and one of the Petie Jury was his Lieutenant And it was holden by the whole Court that that was no principall challenge Windham It hath been holden no principall challenge notwithstanding that one of the Jurours was Master of the Game and one of the Petit Jury was Keeper of his Park And in that case it was holden by all the Justices That if a man make a Lease rendring rent upon condition that if the rent be behind and no sufficient distresse upon the Land that then the Lessor may re-enter If the Rent be behind and there be a piece of lead or other thing hidden in the Land and no other thing there to be distrained the Lessor may re-enter for the distresse ought to be open and to be come by for if it should be otherwise said a sufficient distresse one might inclose money or other things within a wall and thereby the Lessor should be excluded of his re-entry Mich. 28 29. Eliz. in the Common Pleas. 131 IN a Quare Impedit the Plaintiffe counted That the Defendant being Parson of the Church in question was presented to another Benefice and inducted 15 Aprilis and that the other Church became void c. The Defendant said That he was qualified at such a day which was after 15 Aprilis without that that he was inducted 15 Aprilis And the Court was of opinion Anderson being absent that it was no good Traverse for he ought to have said generally without that that he was inducted before the day in which he is alledged to be qualified As if one declare in Trespasse done 1 Aprilis and the Defendant plead a Release 1. Feb. he ought to traverse without that that the Trespasse was done before the Release by Periam Justice Mich. 28 29. Eliz. in the Common Pleas. 132 HALES and HOME'S Case IN an Avowry for Damage feasance one pleaded a Lease made unto him by I. S. the other said that before the Lease â— S. did enfeoff him the other replied and maintained the said Lease absque hoc quod J. S. seiâ—itus feoffavit Gawdy The Traverse is not formall for the word seisitus is idle and ought to be left out for he cannot enfeoff if that he were not seised and it hath never been seen that the seisin in such Case hath been traversed but generally in Pleading the Traverse hath been absque hoc that Feoffavit without speaking of seisin which is superfluous And so was the opinion of the whole Court Mich. 28 29. Eliz. in the Common Pleas. 133 THE Queen granted Lands unto the Earle of Leicester by her Letters Patents the Patentee made a Lease of
therefore the Commoner shal be excluded But it will be objected that the Statute is that the Owners of the Ground may enclose But Sir Francis Barrington is not Owner for the Lord Rich is the Owner of the Ground I say that Sir Francis Barrington is the Owner for he hath the Herbage and the Trees so as he hath all the profit and he who hath the profit shall be said to have the Land it self and he vouched Paramour and Yardleys Case in Plow Com. Dyer 285. and 37. H. 6. 35. and 17. E. 4. 16. Also the Statute is in the disjunctive viz. the Owner or the Vendee and although he be not Owner of the soil yet he is Vendee of the Trees Secondly It will be objected that the same is not a general Law of which the Judges are to take notice and therefore he ought to plead it I hold it to be general enough of which you are to take knowledge although it be not pleaded he cited Hollands Case Thirdly It will be objected that by such general Law the particular interest of a private man shall not be destroyed To that I say that such general Statutes will include such particular interests and therefore the Case betwixt Sir Foulke Grevill and Stapleton was adjudged that where Willoughby Lord Brookes had Lands to him by Act of Parliament with authority to make Leases for one life and no more By the Statute of 32. H. 8. of Leases that authority is enlarged and he might make Leases for three lives Haughton Serjeant Although he be Owner of the profits he is not Owner of the soil and there is a difference betwixt the same and the soil And the Statute speaks of Trees growing in his own soil Foster Justice The Arbitrament the Assurance and the especial Act of Parliament is nothing to the purpose in this Case and to plead them was more then was needfull For by the Arbitrament and the Assurance the Commoner being a third person cannot be bounden in which he was not a party And by the special Act of Parliament he shall not be bound because the Act is against the Lord Rich and his Heirs so as a stranger shall not be bound by the Act And therefore upon the Statute of 18. Eliz. cap. 2. of Patents the Case was That the Queen made a Lease for years which was void for not reciting of a former Lease and afterwards she granted the Inheritance unto another And then came the Statute of 18. Eliz. which confirmed all Patents against her her Heirs and Successors by that Statute the Grantee in Fee was not bounden but he might avoid the Lease for years for the Statute is against the Queen and her successors and that case was adjudged But our case is without doubt as to that point for the right and interest of estrangers is saved by the Act then all rests upon the Statute of 22. E. 4. and I conceive that the same is a speciall Act and ought to be pleaded for it is not generally of all Woods but only of Woods in Forrests and Chases But admitting it to be a generall Act yet I conceive That it was not the meaning of it to exclude a Commoner and that appears fully by the later words of the Statute viz Without licence of c. which excludes only the Owners of the Forrest and it was not the meaning that he might inclose without the leave of the Commoner One thing hath troubled me in the Statute because it is said that before that time he could not inclose more then for 3. years so as before that statute he might enclose for 3 years as it seems without Licence and now by the Statute for 7 years Also for another cause I conceive that the Defendant shall not take advantage of the Statute as he hath pleaded for he hath pleaded that he did enclose and cut whereas the statute saies that he shall enclose after the Cutting so as I hold cleerely that he hath not pursued the authority of the Stat. for upon the St. of 35. H. 8. which is penned contrary to this Stat. scil that the Owner of the wood shall make enclosure and division for the Cōmoner and then he is to cut I hold cleerly that after the felling he cannot make any enclosure Also admitting that by the Stat. the Cōmoner shall be excluded I hold that by the Stat. of 35. H. 8. that that Stat. is repealed in that point for the Stat. of 35. H. 8. is That no man shall fell woods wherein Commoners have Interest by Prescription until he hath divided the fourth part so that the Authority if any were is restrained by that Stat. if he be a Cōmoner by Prescription as he is in our Case But if it had been a Common by grant it had not been within the Clause of Restraint And Leges posteriores priores contrarias abrogant especially the Stat. being in the Negative as it is here For by a Negative Statute the Cōmon Law shall be restrained otherwise if the Stat. were in the affirmative for these reasons I conclude That the plaintiff ought to have Judgment Warburton Justice contrary All the matter rests upon the Statute of 22. E. 4. First I hold that the same is a general act although it be particular in some things So you may say of all statutes which are particular in some one point or other I hold also That the Stat. of 22. E. 4. is not repealed in this point by the Stat. of 35 H. 8. because they were made to several purposes The one was for Forrests and Chases the other onely for other particular Woods And I hold that the Cōmoner shall be excluded for otherwise the Stat. should be void and contrary viz. to give power to one to enclose and exclude all beasts and yet to permit another to put in his cattel And by the words of the Statute which exclude all beasts and cattell the Deer shall not be excluded or intended for they shall not be said beasts or cattel As in 30. E. 3. One who chaseth a cow in a Park shall be said within the Statute de Malefactoribus in Parcis And then if the authority of enclosure be not to exclude the Deer it shall be to exclude the cattell of the Commoner and other the like estrangers or otherwise it should be to no purpose As to that which hath been said That there is not a person who may inclose by the Statute the Statute is that the Owner shall inclose or he to whom the Wood shall be sold so that although that hee be not Owner yet he is to have the Trees and the profits and the Statute doth intend that he may inclose who ought to have the profit and although the sale be not for monie yet such a person may be said Vendee well enough Wherefore I conclude that Judgment ought to be for the Defendant Walmesley Justice I hold that he hath not authoritie by the
that a Man was seised of the Manor of D. and of a house called W. in D. and also of a Lease for years in D. and he did bargain and sell unto another his Manor of D. and all other his Lands and Tenements in Dale and in the indenture did covenant that he was seised of the premisses in Fee which was left out of the Verdict and if the Lease for years should pass by the general words was the question Quaere of the case because Trinit 10. Jacobi the Court was divided in opinion in this Case Mich. 9. Iacobi In the King 's Bench. 262 HUGHES and KEENE's Case THe Plaintiff declared that whereas he was possessed of a Messuage for years which had ancient lights and the Defendant possessed of another House adjoyning and a Yard that the Defendant upon the said Yard had built a House and stopped his lights The Defendant pleaded that the custom of London was that every man might build upon his old Foundation and if there be not any agreement might stop up the Windows of his Neighbour upon which the Plaintiff did demurre in Law and it was adjudged for the Plaintiff because that the Defendant did not answer the Plaintiffs charge that he had built upon the new and not upon the old Foundation And it was holden by the whole Court in this Case that a man may build upon an old Foundation by such a custom and stop up the lights of his Neighbour which are adjoyning unto him and if he make new Windows higher the other may build up his house higher to destroy those new Windows But a man cannot build a House upon a place where there was none before as in a Yard and so stop his Neighbours lights And so it was adjudged in the time of Queen Elizabeth in Althans Case upon such a custom in the City of York And it was said by Cook Chief Justice That one prescription may be pleaded against another where the one may stand with the other as it was adjudged in Wright and Wrights Case That a Copy-holder of a Bishop did prescribe that all Copy-holders within the Manor have been discharged of Tithes But not where one prescription is contrary to the other whereas one prescribes to have lights and the other prescribes to stop the same lights Quaere Hill 9. Iacobi in the King 's Bench. 263 SAMFORD and HAVEL's Case IN an Action of Trespass for 30. Hares and 300. Coneys hunted in his Warren taken and carried away which Trespass was layd with a continuando from such a time till such a time the Defendant justified because he had common in the place where c. to a Messuage six Yard Lands for 240. Sheep and that he and all those whose estate he hath time out of mind have used at such time as the Common was surcharged with Coneys to hunt them kill and carry them as to his Messuage appertaining upon which the Plaintiff did demurre in Law because a man cannot make such a prescription in the Free-Warren and Free-hold of another Man And secondly because a man cannot so prescribe to hunt kill and carry away his Coneys as pertaining to his Messuage But a Man may prescribe to have so many Coneys to spend in his House and for these causes in the principal case the prescription was holden for a void prescription and Judgment was given for the Plaintiff Hill 9. Jacobi in the Common Pleas. 264 COX and GRAY's Case IT was adjudged upon a Writ of Error brought upon a Judgment given in the Marshalsey in an Action of trover and conversion of goods That if none of the parties be of the Kings houshold and judgment be given there that the same is Error and for that cause the Judgment was reversed Hill 9. Iacobi in the Common Pleas. 265 MORRIS's Case IN an Action upon the case for putting of cattel upon the common it was adjudged that if the cattel of a Stranger escape into the common the Commoner may distrain them damage feasance as wel as where the cattel are put into the common by the stranger Pasch 10. Jacobi in the Common Pleas. 266 The Lord MOUNTEAGLE and PENRUDDOCK's Case IT was holden by the whole Court in this case and agreed by all the Serjeants at the Barre That if two men submit themselves to the arbitrament of I. S. And the Arbitrator doth award that one of them shall pay ten pound and that the other shall make a release unto him that the same is a void Award if the submission be not by Deed and hee to whom the Release is to be made by the Award may have remedy for it for otherwise the one should have the ten pound and the other without remedy for the Release And it was resolved That upon submission and arbitrament that the party may have an Action upon the Case for not making of the Release And Cook chief Justice said That it was wisely done by Manwood chiefe Baron when he made such award That a Lease or such like Collaterall thing should be done To make his Award that he should make the Release or pay such a sum of money for which the party might have a remedy I conceive that the reason is That no Action upon the case upon an Arbitrament lieth because it is in the Nature of a Judgement At another day the opinion of the Court was with Cook and 20. H. 6. and 8. E. 4 5. cited to the purpose that there ought to be reciprocall remedy It was also said in this Case That by the Statute of 5. H. 5. A man cannot be Nonsuit after verdict Pasch 10. Jacobi In the Common Pleas. 267 COOK and FISHER's Case IN a Replevin the Defendant did avow for rent granted to him by a private Act of Parliament The Plaintiffe did demand Oyer of the Act and the opinion of the Court was that he ought to have Oyer for they held that the Oyer of no Record shall be denied to any person in case he will demurre And the Record of the Act shall be entred in haec verba Pasch 10. Jacobi in the Common Pleas. 268 The Bakers Case of Gray's-Inne against Occould AN Action of Debt was brought in London against Occould late Steward of Gray's-Inne upon a generall indebitatas assumpsit without shewing the particulars which plea was removed into the Common Pleas. And it was holden by the Court That the Action as it was brought would not lie for the inconvenience which might follow For the Defendant should be driven to be ready to give an answer to the Plaintiffe to the generality And therefore the Plaintiffe ought to bring a speciall Action for the particular things The like Case was in the Marshalsey and because they did not declare in a speciall manner Exception was taken to it and adjudged the Action upon a generall Indebitatas assumpsit did not lie Quaere Trinit 10. Jacobi in the Common Pleas. 269 READ and HAWE's Case IN a Replevin Trinit
was adjudged against the Plaintiffe as in a Valore Maritagii if the Defendant will shew that hee tendered a mariage whereas it is not needfull for him so to do yet if the same be not true and issue be taken upon it Judgement shall be given against him wherefore hee concluded for the Plaintiffe The principall Case was adjourned Trinit 10 Jacobi in the Common Pleas. 270 GOODMAN and GORE 's Case GOodman brought an Assize against Gore and others for erecting of two houses at the West end of bis Wind-Mill per quod ventus impeditur c. And it was given in Evidence That the said houses were situate about eighty feet from the said Mill and that in height it did extend above the top of the Mill and in length it was twelve yards from the Mill and notwithstanding this neernesse the Court directed the Jury to find for the Defendant And in that Evidence it appeared by a Deed procured by the Plaintiff himself That his Wife was Joint-tenant with him and therefore it was holden by the Court That the Assize brought in his own name alone was not well brought And Cook Chief Justice also said That the Count was not good by reason of these words viz. Per quod ventus impeditur for he said That these were the words of an Action upon the Case and not of an Assize But the Clarks said That such was the usuall forme ad quod non fuit responsum and in that Case it was said obiter by Cook Chief Justice That if the Husband and Wife be Joint-tenants and the Husband sowes the Land and dieth and the Wife doth survive that she shall have the embleements Trinit 10. Jacobi in the Common Pleas. 271 HARDINGHAM's Case IN an Action of Trespass Quare clausum fregit the Defendant did justifie That he did enter and distrain for an Amercement in the Sheriffs Torne which was imposed upon the Plaintiffe for enchroaching upon the Kings High-way without shewing that the same was presented before the Justices of Peace at their Sessions as the Statute of 1. E. 4. cap. 2. requireth Haughton Serjeant for stay of Judgement in this Case said That the Statute is That the Justices of Peace shall award Process against the person who is so indicted before the Sheriffe which was not done in this Case And he said That the Statute did not extend to Amercements only in Trespasses Quare vi armis but to every other Trespass for the Statute speaks of Trespasses and other things which shall be extended to all Trespasses Cook Chief Justice said That the Statute of 1. E. 4. cap. 2. did not extend to Trespasses which were not contra pacem as the encroachment in this Case is for otherwise the Lord of a Leet could not distrain for an amercement without such presentmennt before Justices of the Peace And although the Statute speaks of Felony Trespass c. the same is to be meant of other things of the same nature which is proved by the clause in the Statute viz. That they shall be imprisoned which cannot be in the principall Case at Bar. Warburton and Winch Justices agreed in opinion with Cook Chief Justice Trinit 10. Iacobi in the Common Pleas. 272 FRAUNCES and POWELL's Case IT was moved for a Prohibition to the Spirituall Court for citing the Plaintiffe out of his Diocess upon the Statute of 23. H. 8. and by the Libel it appeared That Powell the Defendant had complained against the Plaintiffe in the Court of Arches for scandalous words spoken in the Parish of Saint Sepulchers London Cook Chief Justice held That a Prohibition would lie unlesse the Bishop of London had given liberty to the Arch-Bishop of Canterbury to entermeddle with matters within London for he said that in the Statute of 23. H. 8. there is a clause of exception in case where such liberty is given by the inferior Diocesan and therefore a day was given by the Court to procure a certificate of the opinion of the Civilians whether such authority given by the Inferiour Ordinary to the Arch-Bishop were Warranted by there Law or not for the Statute of 23. H. 8. is so and then if the authority be lawfully granted no prohibition will lye And Cook said that the Statute of 23. H. 8. was made but in affirmance of the common Law as appears by the books of 8. H. 6. and 2. H. 4. For there it is said that if one be excomenge in a forrain Dioces that the same is void coram non judice and he said that the principal cause of making of the said Statute was to maintain the Jurisdiction of Inferiour Diocesses But it was holden that if the Plaintiff had defamed the Defendant within the Peculiar of the Arch-Bishop that in such case he might be punished there although that he did inhabit within any remote place out of the Peculiar of the Arch-Bishop and in this Case it was said that the Arch-Bishop had in thirteen Parishes in London Peculiar Jurisdiction It was adjorned Trinit 10. Jacobi in the Court of Wards 273 COTTONS Case SIR John Tirrel Tenant in Capite made a Lease unto Carrel for 1000. years and further covenanted with Carrel and his Heirs that upon payment of five Shillings that he and his heirs would stand seised of the same Lands unto the use of Carrel and his Heirs And in the Deed there were all the ordinary clauses of a conveyance bona fide viz. That the Lessee should enjoy the Lands discharged of all Incumbrances and that he would make further assurance c. Carrel assigned this Lease to Cotton who died in possession his Heir within age and in two Offices the Jury would not find a Tenure because it was but a Lease for years And in a que plura the matter came in question in the Court of Wards And Cook Chief Justice of the Common Pleas and Tanfeild Chief Baron of the Exchequer were called for Assistants to the Court of Wards and they were of opinion that because it was found by the Offices that Cotton died in possession that the same was sufficient to entitle the King to Wardship of the Lands But before the Judges delivered there opinions the Lessee was compelled to prove the Sealing of the Lease by witnesses which was dated 12. years before For if they have no sufficient witnesses to prove the Sealing of the Lease without all doubt there was sufficient matter found to entitle the King viz. that the party died in possession which shall be intended of an estate in Fee simple till the contrarie be proved But the two Justices moved the Attorney That he would not trouble himself with the proof of a matter in fact For they said It was confessed on all sides that there was such a Lease and that the Assignee of it died in possession of the Land and therefore they said that they were cleer of opinion that the Heir of such a Lessee who died in possession should be
practices should be suffered and go unpunished that no mans life was in safety but in continual jeopardy And therefore in this case it was said that pregnant presumption had been sufficient to have acquited the Plaintiff but here the case was very cleer because the matter was confessed by the parties Defendants themselves And in this case Cook Chief Justice and the Lord Chancellour said that a conspiracy ought not to be onely false but malitiose contrived otherwise it will not be a conspiracy and such malice ought to be proved For if a poor Man travelling upon the High-way be robbed by another Man and he knows not the party if afterwards he do accuse such a one of the Robbery and the party accused be found not Guilty he shall not have an Action of conspiracy against the accuser for although he was falsly accused yet he was not malitiously accused and it might be that he took him to be the Offender because he was like unto him who robbed him Secondly It was said by them that by the Law no Man may Begg the Lands or Goods of another man upon such an accusation until the party be convict of the fact and that for divers causes 1. Because before conviction the King hath not an Interest in them for the goods are not forfeit And 2. Because the party till his conviction ought to have his goods to maintain himself with them And 3. Because the goods cannot be seised upon for the Kings use before conviction although they may be put in salva custodia and therefore they said that this was a very great slander which the Defendants layed upon the Lord Viscount Rochester viz. that he had begged the Plaintiffs goods of the King before he was convicted and it was said that if such goods should be begged before conviction of the party that the same would be a main cause that the Jury will not find the Indictment against the party when they are sure his Lands goods and other estate shall be in anothers person and so by consequence should be a great cause that the King might be defrauded of the forfeiture of the goods of Fellons and further it would be a great cause of Rebellion if such Lands and goods should be seised upon and given away before conviction of the party accused And as the Lord Chancellour said the same was the cause of the great Rebellion in the time of King Henry the sixth because the goods of divers were given away to other men before the parties were convicted And Cook said that it appeareth that this was not onely a scandal of divers Gentlemen of Worship whom the Defendants had abused in this thing But even of the King himself And it was not onely scandalum Magnatum But scandalum Magistr Magnatum And he said that it appears in Britton that if a Rebel or base fellow do strike a Man of Dignity that he shall lose his right hand à fortiori in such case when they defame and scandalize them by such impudent practices that they be grievously punished And it should be a very unhappy estate to be a Rich-Man if such Offences should not severely be punished multi delicti propter inopiam The Sentence against the said Defendants was this Reignolds being an Attorney to be degraded cast over the Common Pleas Barre and both the Defendants to lose their Eares to be marked in the Face with a C. for Conspirators to stand upon the Pillory with Papers of there Offences to be Whipped and each of them fined to the King in 500. pound and according to this Sentence Reignolds the same Mich. Term was cast over the Common Pleas Barre by the Cryers of the Court and the other part of the Sentence executed on them both Mich. 11. Jacobi in the Common Pleas. 294 COOKES Case IN a Writ Quare intrusit maritagio non satisfacto It was found for the Plaintiff but no damages were assessed by the Jury and the value of the Marriage was found to be 500. pound And now the question was whether the same might be supplied by a Writ of Enquire of Damages and the Court primâ facie seemed to doubt of the case For where the party may have an attaintment there no damages shall be assessed by the Court if the same be not found by the Jury and therefore the Court would be advised of it but afterwards in the same Term it was adjudged that no Writ of Enquire of damages should Issue But a venire facias de novo was granted to try the Issue again Vide 44. E. 3. the opinion of Thorpe acc Note this was the last Case that Cook Chief Justice did speak to in the Common Pleas for this day he was removed from that Court and made Chief Justice of the Kings Bench. Mich. 11. Jacobi in the Common Pleas. 295 WEDLOCK and HARDING's Case THE Case was this a Man seised of a Messuage holden in Socage in Fee by his will in Writing devised the same to his Cosen by these words viz. I devise my Messuage where I dwell to my Cosen Harding and her Assignes for eight years And also my Cosen Harding shall have all my Inheritances if the Law will And it was adjudged by the whole Court without argument That this was a devise of the Messuage in Fee by these words and that all his other Inheritances passed by the said Will by those generall words Mich. 11. Jacobi in the Common Pleas. 296 ROSSER against WELCH and KEMMIS IN an Action of Debt brought against the Defendants upon severall Praecipes one Judgement is given and the Plaintiffe takes forth a Capias against one of them and arrests his body and afterwards hee takes a Fieri facias against the others And the question was Whether the severall Executions should be allowed and the Court was of opinion they should not for that a man shall have but one satisfaction And therefore in the principall Case because that upon the Fieri facias twenty five pounds was levied if the other who is in prison upon the Execution will pay the other twenty five pound the whole Judgment being but fifty pound the Court awarded that the prisoner should be discharged and the Court was clear of opinion that the partie cannot have a Fieri facias against one and a Capias ad satisfaciendum against the other But it was agreed That he might have a Capias against them both As if a man hath one Judgement against seven persons he may take all their bodies in execution because the body is no satisfaction but onely a gage for the Debt and therewith agreeth 4. H. 7. 8. 5 E. 4. 4. and C. 5. part Bamfeild's Case Mich. 11. Jacobi in the Common Pleas. 297 JENOAR and ALEXANDER's Case IT was moved for a Prohibition to the Court of Requests because that the Court held plea of an Attornment for the complaint there was to compel a man to attorn upon a Covenant to stand seised to uses
Commission which is their authority but if it had been left out in their Commission then the Writ had been good enough And he said that when a man meddles with a thing which is but surplusage which he needed not to do he must recite the same substantially otherwise his plea will be vitious C. 4 par Palmers case And when he maketh Tho. Fleming Capit. Justic ad Placita indefinitely he varieth from the truth for the stile is Tho. Fleming Capit. Justic ad Placita coram Rege tent Haughton Justice acc ' and he said that in every Writ of Error which is to remove a Record three things ought to be expressed 1. Mention is to be made before what person it was taken as the book is in 28 H. 6. 11. 2. It is to mention betwixt whom it was 9 H. 6. 4. 3. The manner of the caption is to be mentioned whether by Writ or without Writ 2 R. 3. 2 3. and this Writ faileth in the first of them therefore he concluded that the VVrit should abate Cook Chief Justice was of the same opinion and agreed that Misnosmer and variance are not to be favoured if they be not substantial and essential quae dant esse rebus and he said that the variance in this case is of such nature For in many Records yet extant and in the time of King H. 3. it is to be found that the Chief Justice of England did sit and give Judgment in the Common-Pleas and in the Exchequer and so then Capital Justic ad Placita is too general because he might sit and give Judgment in any of the said Courts The second Exception was because that the VVrit saith Assisa capta c. and doth not say per breve nor sine breve nor doth say secundum legem consuetudinem c. For in 43 Eliz. in the Case betwixt Cromwell and Andrews it was adjudged not good to say That such an Action came into the Common-Pleas out of the Country and doth not shew that it came by adjournment or by Certlorari or Mittimus To which it was answered by Damport Councellor for the Plaintiff that it is a strong intendment that the Assise was taken per breve and therefore it needed not to be expressed because it is a general and not a special Assise Crook Justice The Exception is good for it is so general that it cannot be intended which Assise it was For put case there were two Assises betwixt the same parties it cannot be known which Assise is intended And of the same opinion was Haughton Justice Dodderidge contrary and he said Notwithstanding the Exception the Record ought to be removed by the Writ For the Judges Conscience may be well satisfied which Record is to be removed And here the Record which is to be removed is so precisely shewed that no body can doubt of it which ought to be certified And there are Records removed by Writs of Error which are more dubious then this is v. 19 Eliz. Dyer 356. 20 E. 3. But in this case the Writ is much enforced by the words Sommon Capt. For in every Assise there are four Commands to the Sheriffe 1. Facere tenementum esse in pace to quiet the possession 2. Facere recognitionem or Recognit videre tentam 3. Summoneas 4. Ponas eos per vadios c. For which cause of necessity it must be meant an Assise per Breve The third Exception was because in the Writ it was not shewed who was Plaintiffe and who Defendant Dodderidge It is generally to be agreed That the Writ of Error ought to agree with the Record which Rule is taken in 3 H. 6. 26. C. 3. par the Marquess of Wincbesters Case But yet every Variance doth not abate this VVrit For if the variance be only in matter of circumstance as it is in this Case the VVrit shall not abate vid. 9 H. 6. 4. 4 5 Phil. Ma. Dyer 164. 2 Eliz. Dyer 173. 180. 28 H. 6. 11. 12. The fourth Exception was because it doth not shew the place of the Caption of this Assise but sayes generall in Com. Norfolk Haughton held that rather to be examinable in the Parliament then here The last Exception was because the VVrit is directed to Cook Chief Justice that he certifie the Record sub sigillo suo whereas it was said the Record it self was to come in Parliament and there a Transcript thereof is to be made and the Record to be remanded V. 22 E. 3. 23 Eliz. Dyer 357. 1 H. 7. 29. against the Book of Entries 302. To which it was answered That it is at the pleasure of the Parliament to have either the one or the other 22 E. 3. 3. 8 H. 5. Error 88. To which Cook agreed And note that upon this VVrit of Error a Supersedeas was fraudulently procured and a VVrit of Attachment issued forth against Bacon who procured it And the Supersedeas was disallowed because that another Supersedeas was granted in the first VVrit of Error And a man can have but one Supersedeas But the Question in this Case was Admitting that the VVrit of Error be good and not abateable If the same be a Supersedeas in it self And the Court doubted of that point For Cook Chief Justice said That he had viewed 26 or 27 VVrits of Error which were brought in Parliament where the first Judgment was disaffirmed and but one where the Judgment was affirmed and that is in 23 Eliz. Dyer 357. the Record of which cannot be found Et quod in praxi est inusitatum in jure est suspectum The Books where Error was brought in Parliament are 2 E. 3. 34 40 in the old print 22 E. 3. 3. 42 Ass pl. 22. 9 H. 5. 23. 1 H. 7. 29. 23 Eliz. Dyer 375. And it should be mischievous for delay for a Parliament is only to be summoned at the Kings pleasure Haughton Dodderidge and Crook held cleerly That this VVrit of Error was a Supersedeas in it self and that upon the Book of 8 E. 2. Error 88. 1 H. 7. 19. where it is said That the Justices did proceed to Execution after the Judgment affirmed in Parliament and therefore ex consequente sequitur not before And therefore the VVrit of Error is a Supersedeas that they cannot proceed But there is no President of it in the Register but a Scire facias fo 70. And the Court held That if a Supersedeas be once granted and determined in default of the party himself that he shall never have another Supersedeas but otherwise if it fail by not coming of the Justices Also Cook Chief Justice held That by this VVrit of Error in Parliament Sir Christopher Heydon could not have the effect of his suit because it is to reverse a Judgment coram Rege and so the Judgment given in the Common-Pleas stands firm and Sir Christopher Heydon is put to a new VVrit of Error in this Court for the Judgment
in the Kings Bench is Judicium affirmetur stet in pleno robore effectu And it is not as the Judgment is in 20 E. 4 44. Judicium stet in aeternum And so that not being the fundamental Judgment the Reversal thereof is but the beginning of another suit 38 H. 6. 3. And admit that the VVrit of Error be a Supersedeas for the second Judgment yet it is a Question whether it shall be for the first which is not touched by the VVrit And whether they may grant Execution upon it or not Vide 13 E. 4. 4 43 E. 3. 3. 8 H. 7. 20. And therefore the Court advised Sir Christopher Heydon to sue unto the Kings Majesty by Petition to have a new Writ of Error for without Petition he cannot have the Writ 32 E. 3 1. 8 E 2. Error 88. And the Justices gave him warning to do it in time convenient otherwise they would award Execution if they did perceive the same to be meerly for delay according to the Cases in 6 H 7. 8 â— 7. And afterwards the Parliament being upon a sudden dissolved without any thing done therein Execution was awarded Pasch 12 Iacobi in the Kings Bench. 346. BLITHMAN and MARTIN's Case IOhn Blithman brought an Action upon the Case against Martin upon an Assumpsit and recovered And it was moved That because the Consideration which was the Cause of the Action was against Law that the Judgment might be stayed For the Plaintiffe did alleadge the same to be in consideration That if the Plaintiff being Goaler of such a Prison in Devâ—nshire would deliver one who was in Execution for Debt he promised to give him Twenty pounds And he alleadged in facto that he did deliver him the Debt not being satisfied And because the Consideration was to do a thing which was against the Law the opinion of the Court was that it was void and that the Plaintiffe should not have Judgment Pasch 12 Iacobi in the Kings Bench. 347. SHERLOE's Case SHerloe brought an Action of Assault and Battery and declared Quod eum the Defendant verberavit And did not shew certain nor alleadge precisely in his Declaration That the Defendant did beat him Exception was taken unto it For there is a difference betwixt a Declaration in an Ejectione Firme Debt and this Action for in those Actions such Declaration is good but not in this Action And to prove the same one Sheriffe and Bridges Case in 39 Eliz. was cited where such Declaration was adjudged void But yet the opinion of the Justices was That the Declaration was good enough notwithstanding the said Judgment in 39 Eliz. Pasch 12 Iacobi in the Kings Bench. 348. GRUBE's Case IT was moved in Arrest of Judgment upon issue joyned inter Mathiam Grub and in the Venire facias he was called Matheum Grub. And Cook Chief Justice said That the Venire facias was vitious but because that the Jury did appear upon the Habeas Corpora the Trial was well enough Pasch 12 Iacobi in the Kings Bench. 349. CROOK and AVERIN's Case CRook Merchant brought an Action upon the Case against Averine for speaking these words viz. Mr. Crook came into Cornwal with a blue Coat but now he hath gotten much wealth by trading with Pirats and by cosening by tale of Pilchers and by Extortion And Cook Chief Justice said That the Law giveth no favour to those verbal Actions and we see there is not any such Action brought in our old Law-books And therefore he said Words ought to be certain And he examined the words in this Case by themselves and said That the first words are not actionable because they are not material And the other words by trading with Pyrats are too general for an honest man might trade with a Pyrate not knowing him to be a Pyrate and so no damage might come to him But as to the other words he gave no opinion Pasch 12 Jacobi in the Kings Bench. 350. CLAYDON Sir JEROM HORSEY's Case CLaydon brought an Action upon the Case against Sir Jerom Horsey for erecting of a house in a certain place called Risborough Common and alleadged in certain That every one who had Common in Risborough pred c. and did not alleadge That the Common is in the Mannor of Risborough But he declared That there is such a Custome within the Mannor of Risborough And the opinion of the Court was That the Declaration was good because there is but one Risborough alleadged and therefore of necessity it must be meant de Manerio Pasch 12 Iacobi in the Kings Bench. 351. The CLOTHWORKERS of IPSWICH Case THe Masters and Wardens of the Clothworkers of Ipswich in the County of Suffolk brought an Action of Debt for 3l. 13s. 4d. against D. and declared That the King who now is had incorporated them by the same name c. And had granted unto them by Charter Quod nullus exerceat artem sive occupationem in aliqua shoppa domo sive camera infra villam predict of a Clothworker or Tailor nisi ante eos vel duos eorum probationem faceret quod Apprentic fuit per spacium 7 annorum per eos sive duos eorum sit approbat sub paena 3l. 13s. 4d. pro qualibet septimana qua exerceat predict artem contra hanc constitutionem And layed in facto That the Defendant had used the Trade of a Tailor for the space c. against c. The Defendant pleaded That he was retained in service with one Mr. Pennel Gen of Ipswich and had been an Apprentice for the space of seven years in tali loco c. And that he made garments for his said Master and his wife and their children infra c. quae quidem exercitio est eadem exercitio artis which is supposed by the Plaintiffs in their Declaration Upon which the Plaintiffs did demur in Law Goldsmith for the Plaintiffs That the Plea in Bar is void For every Plea in Bar ought to confesse and avoid traverse or deny that which is alleadged in the Plaintiffs Declaration But this Plea in Bar had not done any of them and therefore was void For the exercising of the Trade which he hath confessed in his Bar cannot be intended the same matter with which the Plaintiffs have charged him in their Declaration and therefore it is no good bar at all And to prove the same vide 14 H. 6. 2. 35 H. 6. 53. 12 H. 7. 24. 27 H. 8. 2. Sir Robert Hitcham for the Defendant And he held that the matter is well confessed and avoided because that usage which he hath confessed in the Bar is colourable the same usage with which the Plaintiffs have charged him in their Declaration As in a Writ of Maintenance the Defendant saith That he was of Councel with the party being a Serjeant at Law c. which is the same Maintenance which is supposed by the Plaintiffe vide 28 H. 6. 7. 12. 19 H.
duty did survive with the wife or were extinguished by the entermarriage was the Question And Hâ—bart Chief Justice and Warburton were against Winch and Hutton Justices That the marriage was a Release or discharge of the 100â— Quaere Hill 15 Jacobi in the Kings Bench 380. PLOT' 's Case AN Enâ—ant brought an Assise in the Kings Bench for Lands in Mich depending which The Tenant in the same Assise brought an Assise for the same Lands in the Common-Pleas which last Writ bore date and was recornable after the first Writ And the Demandant in the second Writ did recover against the Enfant by default by the Aâ—â—â—se who found the Seisin and Disseisin And upon a Plea in 〈◊〉 of the first Assise of that Recovery the Enfant by way of Replication set forth all the special matter And that the Deâ—andant at the time of the second Writ brought was Tenant of the Land And prayed that he might 〈◊〉 the Recovery And it was adjudged That he might falsifie the Recovery For in all Cases where a man shall not have Error noâ—â—â—taint he may Falsifie But in this case he could not have Error nor Attaint because the Judgment in the Common-Pleas was not given only upon the Default but also upon the Verdict And it should be in vain for him to bring an Attaint because he shall not be 〈◊〉 to give other Evidence then what was given at the first Trial. Also he shall falsifie the Recovery because it was a practise to defeat and take away the Right of the Enfant and to leave him without any remedy whatsoever Pasch 16 Iacobi in the Kings Bench. 381 INGIN and PAYN'S Case LEssee for years was bounden in a Bond to deliver the possession of a house unto the Lessor his heirs and assignes upon demand at the end of the term The Lessor did bargain and sell the Rendition by Deed enrolled to two One of the Bargainees at the end of the term demanded the Delivery of the Possession The Lessee refused pretending that he had no notice of the bargain and sale It was adjudged that the Bond was forfeited Pasch 16 Iacobi in the Common-Pleas 382. JERMYN and COOPER'S Case A Man by Deed gave Lands to A. and to a Feme sole and to their heirs and assigns for ever Habendum to them and to the heirs of their bodies the Remainder to them and the survivor of them for ever And it was adjudged by the Court That they had an Estate in tail with the Fee-simple Expectant Pasch 16 Jacobi in the Kings Bench. 383. A Man was Indicted De verberationem vulnerationem of J. S. and the words vi armis were left out of the Indictment And the same was adjudged to be helped by the Statute and that the Indictment was good Mich. 16 Jacobi in the Kings Bench. 384. BARNWEL and PELSIE'S Case A Parson did Covenant and grant by Deed with one of his Parishioners That in consideration of Six pounds thirteen shillings and four pence per annum be paid unto him that the said Parishioner should be discharged of all Tythes upon condition to be voyd upon default of payment Afterwards the Parson against his grant did sue the Parishioner in the Spirituall Court for Tythes in kind and it was moved for a Prohibition But the Court would not grant it because that the Originall viz. the Tythes do belong to spirituall jurisdiction But it was said that the Parishioner might have an Action of Covenant against the Parson upon the Deed in the Temporall Court 385. Posch 16 Jacobi in the Kings Bench. AN Action upon the Case was brought for speaking of these words viz. J. S. 34 years since had two Bastards and hath paid for the nursing of them And the Plaintiff shewed that by reason of these words contention grew betwixt him and his wife almost to a Divorce And it was adjudged That an Action would not lye for the words And the Chief Justice said That an Action upon the Case doth not lye for every ill word but for words by speaking of which the Plaintiff is damnified and that cannot be in this Case the time being so long past And the causes wherefore a man shall be punished for saying that a man hath a Bastard are twoâ— the one because by the Statute of 14 Eliz. the offender is to be punished for the same And secondly because the party by such means is discredited or hindered in his preferment Hill 16 Iacobi in the Kings Bench. 386 HURLSTON and WODROFS Case HEnry Hurlston was Plaintiff against Robert Wodroffe in an Action of Debt upon a Demise of a Messuage with a Sheep-walk the Latin word being Ovile And it was moved in arrest of Judgement after a verdict found for the Plaintiff That the sheepwalk was not alledged to be appurtenant nor pleaded to be by Grant by Deed. But notwithstanding that it vvas ruled by the vvhole Court because it rested indifferent whether there was a grant by Deed or not That when the Jury find that the Sheep-walk did passe it shall be intended that there was a Deed. Dodderidge Justice in the Argument of this Case did hold That by the word Ovile although it be translated in English a Sheep-walk yet a Sheep-walk did not passe by it but a Sheep-Cote and by that the Land it self did passe Hill 16 Iacobi in the Kings Bench. 387. HILL and WADE'S Case HIll brought an Action upon the Case against Wade and declared upon an Assumpsit to pay mony upon request and did not alleadge the Request certain but issue was joyned upon another point and found for the Plaintiffe That the failing of certain alleadging of the Request in the Declaration made the same insufficient And so it was adjudged by the Court with this difference where it was a duty in the Plaintiffe before and where the Request makes it a duty For in the first case the Plaintiffe need not alleadge the Request precisely but otherwise in the later Dodderidge Justice put this Case If I promise J. S. in consideration that he will marry my daughter to give him 20â— upon request there the day and place of the request ought to be alleadged in the Declaration Montagu Chief Justice cited 18 E. 4. and 5 H. 7. to be contrary viz. That the finding of the Jury made the Declaration which was vitious to be good As if Executors plead That they have nothing in their hands the day of the Action brought it is insufficient But if the Jury find Assets it is good and so by consequence the Verdict shall supply the defect of Pleading But the Court held these books to be good Law and not to be contrary and well reconciled with this difference For there the Plea was naught only in matter of circumstance but otherwise it is where it is vitious in substance as in this case it is And a difference also was taken where the Verdict doth perfect all which is material and ought to be expressed
at the time of the Indictment the said Bridg was ruinous and decayed Thirdly The Indictment is that Bridges and Nichols debent solent reparare poâ—tem and it is not shewed that their charge of repairing of the same is ratione tenare 21 E. 4. 38. Where it is said That a prescription cannot be that a common person ought to repair a Bridg unless it be said to be by reason of his Tenure but it is otherwise in case of a Corporation For these Errors the Indictment was quashed by Iudgment of the Court. Trin 21 Jacobi in the Kings Bench. Intratur Trin. 20. Rot. 1609. 442. Sir THOMAS LEE and GRISSEL's Case GRissel brought an Action upon the Case against Lee in the Common Pleas and shewed that diu fuit adhuc seisitus existens of a house c. and he did prescribe that he and all those whose Estate he hath in the said house c. had used to have Common in the waste of L. and that Lee in Jacobi made Coniburies in the waste quorum quidem premissorum he lost his Common The Action was brought 18 Jacobi and Iudgment given in the Common Pleas for the Plaintiffe there and thereupon a Writ of Error was brought in the Kings Bench and it was assigned for Error First That diu seisitus is not good because it hath not any limitation of time for it may contain as well forty years as one year He laid the wrong to be 15 Jacobi and doth not shew that at that time he was seised for diu doth not express any certain time and then it is like unto the case of Waste where the Grantee of a Reversion brings an Action of waste and doth not shew that he committed waste to his disâ—heresin but doth not shew when the waste was done for it might be that it was done betwixt the Grant and the Attornment and then he had no cause to have waste or otherwise it might be that the waste was done in the time of the Grantor and then the Grantee had no cause of Action But in such case he ought to have shewed that he was seised of the Reversion at the time of the waste done 4 E. 4. 18. There Trespass was brought upon the Statute of R. 2. and the Writ was That he did enter in diversa terras tenementa There it was holden that the Writ being insufficient the Court should not make it good because it is too general In our Case it ought to have been that he was diu adhuc est seisitus Et seisitus that the Defendant did do the wrong Another Error was assigned because he doth not conclude quorum quidem premissorum praetextu he lost his Common But he saies quorum quidem premissorum he lost his Common and leaves out the word prâ—textu which word ought to have been in the Declaration The Action is brought three years after the wrong done and he ought to have shewed that he 15 Jacobi which was the time of the wrong done fuit seisitus diu ante fuit seisitus in dominico ut de feodo All before the clause quorum quidem c. is but collection and he ought to have concluded with a cause of grievance viz. quorum quidem premissorum praetextu he lost his Common 7 H. 7. 3. There it is said that this word praetextu is a conclusion that the particular wrong doth contain and doth affirm that which went before but in this case the word praetextu is wanting and a Seisin first ought to be laid and then praetextu quorum is good Vi. Bullen and Sheenes case before where the Plaintiffe first made him title to the Common viz. that he was such a time seised in Fee adhuc seisitus existens that the Defendant did dig clay Vi. Brown and Greens Case in the Common Pleas. 40 Eliz. Where a man pleaded a Feoffment and Livery Virtute cujus he was seised in fee and did not shew that he entred and yet the same was good because the Virtute cujus was a good conclusion Ley Chief Justice diu doth not denote any time certain If in a Case it had been postea or sic inde seisitus the Defendant did the wrong then the Declaration had been good but here is nothing to which diu may have reference If he had said that he being diu seisitus that the Defendant had such a day done the wrong it had been good Secondly Here ought to have been either quorum quidem premissorum ratione or praetextu he lost his Common here the Latine is good viz. quorum quidem premissorum Commoniam perdidit but it is not good in Law Dodderidge Justice You ought to have coupled the damage and the wrong and in this case there wants the coupling for want of the word praetextu for the word praetextu is the application of the precedent matter The matter of wrong is the making of the conyburies by reason of which he lost his Common and the quorum quidem here hath not any sense The Declaration wants matter of form also diu fuit seisitus adhuc seisitus existens Might you not have purchased this Common after the wrong done by the making of the conyburies for it doth not appear otherwise by the Declaration for as well as diu may comprehend forty years so it may but one moneth If it had been diu seisitus sic seisitus that he made the conyburies then the Declaration had been well but as this case is it is not good Haughton Justice Your Action ought to have contained your matter of time as well as your matter of wrong Diu includes no certainty of time and quorum quidem premissorum c. is a speech without sense If a man maketh title to have Common pro omnibus averiis and the word suis is omitted it is not good Ley Chief Justice here the wrong and damage are not knit together by these words and it might be that in this case he had lost his Common by some other means For he doth alleadge that he lost his Common but how he lost it that doth not appear to us If he had said Virtute cujus or per quod or ratione cujus he had lost his Common then the Declaration had been certain and had been well enough But here it being incertain both in the seisitus and also in the alleadging the damage The Judgment given in the Court of Common-Pleas for these Errors was reversed Trin. 21 Iacobi in the Kings Bench. 443. PYE and BONNER's Case AN Information was in the Common-Pleas by Pye against Bonner for buying of Cattel selling of them again in the same Market against the Satute Which was found against the Defendant and the Judgment was entred Quod sit in misericordia whereas it ought to have been Capiatur being upon an Information For it is a Contempt and punishable by Imprisonment And in this Case upon a Writ of Error brought in
Bill Obligatory and doth not shew that it was delivered Dyer 156. Per scriptum suum gerens datum and doth not say Primò deliberatum is not good The fourth Error was That in the Replication the Plaintiffe saith dixit whereas it ought to be dicit in present tense 10 H. 7. 12. The title to the Assise took Exception to the Plaintiffs title because that he said fuit seitus of a Messuage whereas he ought to have said est seitus But yet it was there holden good because he saith that all those whose title he hath c. by which words the possession shall be intented to continue 35 H. 6. 11. 85. vi 268. A Writ a False Judgment directed to the Sheriffe Recordare loquelam que est and the form and the presidents are quae fuit 9 H. 6. 12. The Sheriff retorns Non est inveni whereas it ought to be Nom est inventus and adjudged Error And he said That Detinue is only to be brought when it self is to be recovered in as good plight and no other Action It doth appear by the Record that in this Case at Trial 18 were only retorned upon the Pannel wheras there ought to have been 24 retorned By the Statute of West 2. cap. 38. 24 ought to be retorned on the Pannel 8 H. 4. 20. More then 24. shall not be retorned 2 H. 7. 8. The Sheriffe retorned but 12. and it was ruled to be an insufficient retorn because 24 ought to have been retorned 36 H. 6. 27. Trespass is brought for a Box and Charters which concerned the Plaintiffs lands and damages were given entirely and there it was adjudged not to be good because the Plaintiffe did not make any title to the Box nor did shew that the same was locked or sealed For the Box may belong to one and the Charters to another as the Evidences to the heir and the Box to the Executors unless the Box be first locked Note The opinion of the whole Court was because that the issue was particular That he was not guilty of the Trespass and detaining untill the Plaintiff had entred into a Bond. And the Jury found him guilty of the Trespass generally That the Verdict was not good to make the Defendant guilty by implication And Justice Dodderidge said That the Plaintiff hath brought his Action of Trespass and doth not lay any possession of the Box And Trespass is a possessory Action Also he said That the Plaintiff did not set forth the Quality of the Evidences viz. Whether they were Releases Deeds of Feoffments or other particular Evidences And for these causes and for the causes before alleadged the Judgment given in the Court at Lincoln was reversed Pasch 3 Caroli in the Kings Bench. 461. Sir WILLIAM FISH and WISEMAN's Case JUdgment was given in the Common-Pleas against Sir William Fish and after the year and day Execution was awarded by Capias where it ought to have been by a Scire facias first And the Plaintiff was taken in Execution and brought a Writ of Error in this Court where the Judgment was affirmed but the Execution was reversed because the Execution was not warrantable the Process being erronious And out of the Kings Bench another Execution was awarded by Capias sicut alias within the year of the affirmance of the Judgment in the Kings Bench. And it was moved by Banks That the Execution was erronious because he ought to have a Scire facias because the year is past after the Judgment in the Common-Pleas and although that the Court be changed yet the Plaintiffe ought to have the same Process for Execution as he ought to have in the first Court 14 H. 7. 15. The first Process was reversed for Error and then he cannot have a Sicut alias but ought to have a new Original We pray a Supersedeas of the Execution for Sir William Fish the Plaintiffe and that he may be delivered out of Execution Sir William Fish had a Release and that was the cause that Wiseman would not take a Scirefacias Sir William Fish upon the Judgment in the Common-Pleas was taken in Execution and upon a Writ of Error brought Bail was put in to proceed with effect and then he was delivered out of Execution And then he cannot now be taken in Execution again upon the same Judgment 16 H. 7 2. per Curiam If one be in Execution upon Condemnation in the Common-Pleas and the Record and the body is removed into the Kings Bench by Error then the party shall find collateral Securities by their Recognisance to pay the Condemnation in case the Judgment be affirmed and further to proceed with effect In this case the body is discharged of Execution as to any Process to take the body unless he render himself to prison of his own accord to discharge his Sureties And if he will not do it he who recovereth hath no remedy but to make the Sureties to pay the Condemnation by reason of their Recognisance 2 E. 4. 8. A man is condemned in London tempore Vacationis and hath Execution in the Term and the Defendant sueth a Corpus cum causa and had his priviledge in the Common-Pleas Danby The Plantiffe shall not have Debt for at the beginning when the Defendant was in Execution the Action of Debt was gone and then he being discharged here the Action of Debt doth not lie To which Needham agreed And Choke said He did not know any remedy that the party had and conceived that he could not have a new Execution 14 H. 7. 1. If one escape out of Execution the Plaintiffe cannot take him again in Execution but his remedy is against the Gaoler The Court may supersedeat this Execution because it is erronious 34 H. 6. 45. b. An Action of Debt was brought against an Executor who pleaded that he had fully administred And it was found that he had Assets and Judgment was given against the Defendant and a Capias was awarded against him and after that an Exigent And the Court granted a Supersedeas to supersede that Erronious process For a Capias doth not lie against an Executor where he pleads c. but a Fieri facias And therefore in the principal Case Banks prayed a Supersedeas Jones Justice If Error be brought within the year of the Judgment in the Common-Pleas and the Judgment be affirmed here the party shall have a Capias although the Judgment be affirmed two years after the bringing of the Writ of Error For he shall take the same Execution in the Kings Bench as in the Common-Pleas and the altering of the Court makes no difference in it And so was Garnon's case The Writ of Error was brought within the year of the Judgment in the Common-Pleas but it was not affirmed in two years after and yet there he had the same Process in the Kings-Bench as he was to have had in the Common-Pleas Dodderidge Justice If the Execution be lawfull and upon lawfull Process
Deed which bears date beyond Sea that the Action will not lie 13 H. 4. 5 6. An Obligation bore date in France and was made according to the Law of France 6 R. 2 cap. 2. Where the Specialtie bears date there the Action shall be brought The first book that speaks of Deeds bearing date out of England 20 H. 6. 28 29. 20 E. 4. 1. 21 E 4. 72. You must suppose then That it was at a place in England and that is but a fiction of Law and you shall never make a man subject to the penalty of a Statute upon a fiction of Law C. 11. part 51. A Disseisor makes a Lease for life or years the Disseisee shall not not have an Action of Trespass vi armis against him because he comes in by title For this fiction of Law That the Frank-tenement hath always been in the Disseisee shall not have Relation to make him who comes in by title to be a Trespassor vi armis 18 H. 6. 23. A Reversion is expectant upon an estate for life and in the mean time betwixt the Grant and the Attornment the Lessee commits Waste yet although the Attornment relate to make the Grant good ab initio yet the Relation being a fiction of Law will not make the Lessee punishable for Waste Then in this our Case the Deed bears date beyond the Sea and then to make Dunkirk to be in England by a fiction in Law shall not be prejudicial to the Defendant Com. 369. The preamble of a Statute is the best Interpreter of the Statute In the Statute of 13 R. 2. the preamble saith Because the Admirals and their Deputies do hold their Sessions c. in prejudice of the King and of the Common-Law and in destruction of the common people c. But this Deed bearing date beyond the Sea is no prejudice to the King nor to his Franchises nor to his people to be sued in the Admiralty 32 H. 8. cap. 14. The suit within the Admiralty ought to concern Charter-partie and Fraighting of a Ship For by that Statute it was enacted That if any Merchant-stranger as Mullibeck was by long delaying and protracting of time As in our Case otherwise then was agreed between the said Merchants in or by the said Charter-partie c. shall have his remedy before the Admiral which Lord Admiral shall take such Order c. In our Case at Bar It was a Charter-partie made beyond Sea 2. It was for the freighting of a Ship 3. For the breach of it was the the suit in the Court of Admiralty But admit that this point be against me then for the second point I do conceive that he who is punishable by the Statutes must be Prosecutor which the Defendant is not for what he hath done he did by vertue of a Letter of Attorney and he did it in the name of another and it is the Act of the other C. 9. part 76. Combes Case If a man have power to do an Act by force of a Letter of Attorney it ought to be done in the name of him who gives the power 3 Ma. Dyer 132. If Surveyors have power to make Leases if they make the Leases in their own names it is not good but they ought to be made in his name who giveth the power 11 Eliz. Dyer 283 The Statute of R. 3. giveth power to Cestuy que use to make Leases and he makes a Letter of Attorney the Attorney must make the Leases in the name of Cestuy que use who hath the power by the Statute C 9. part 75. A Copyholder may surrender by Attorney because it is his own surrender Vi Perkins 196. 199. A Feoffment with a Letter of Attorney to the wife to make Livery is good but then the wife must make the Livery in the name of her husband Secondly in this Case at Barr the beginning and the prosecution of the Suit was altogether for the benefit of Mullibeck and so it appears by the Records of the Court and no notice is there taken of the Attorney but of the Master L. 5. E. 45. A Writ is directed to the Sheriff and the Under-Sheriff makes a false retorn the Sheriff shall be amerced and not the Under-Sheriff for the Law doth not take notice of him 7 Eliz. Dyer 239. The Customer himself and not his Deputie shall be charged And so in our Case Mullibeck being partie to the whole ought to be accounted the partie prosecuting within the words of the Statutes The Statute of 4 H. 7. cap. 27. is so as they pursue their claims within five years such prosecuting or pursuing ought to be by the partie himself C. 9. part 106. If one of his own head make claim it is not good claim for to avoid the Fine c. The Statute of 16â— R. â— cap. 5. of Premunire makes against me for there the Procurours Councellors Sollicitors Abettors and Attorneys are named by the express words of the Statute and there is an express provision against them But in our Case it is not so for if our Statute had intended to extend to Councellors Attornies c. it would have expresly named them There are divers exceptions which I take to the Verdict First There is variance in the place betwixt the Declaration and the special Verdict for the Declaration layeth the Contract to be made at Dunkirk in England and the special Verdict finds it to be made at Dunkirk extra partes transmarinas Secondly The Declaration is to take in Mariners and the special Verdict is to take in Men. Thirdly the Declaration is A Ship to be prepared and the Verdict is to be in readiness Fourthly The Statute of 15 R. 2. and 2 H. 4. gives the Action by way of VVrit and here it is by Bill 42 Ass 11. There one was taken in Execution and escaped and there a Bill was exhibited for the escape and it was holden because the Statute of West 2. gave a Writ of Debt it shall not be extended by equity to a Bill of Debt Com. 38. a. and Com. 36 37. Plats Case There the Judgment is given upon a Bill for an escape but Mr Plowden said that it seemed to divers a hard Case The Statute of â—8 Eliz. cap. 5. of Informers is in the negative viz. That none shall be admitted or received to pursue any person upon any penal Law but by way of Information or original Action and not otherwise Mich. 29 Eliz. in Clarks Case it was resolved that the Statute of 18 Eliz. was a penal Law and the partie must not be sued by Bill but as the Statute hath prescribed 27 H. 6. 5. There upon Premunire facias it was adjudged good by Bill but there the Action was not directed so precisely by the Statute viz. in what manner the partie should proceed There are no presidents that an Action of Debt hath been brought for pursuing in the Court of Admiralty but in such Case a Prohibition granted only
39 H. 6. 9. is ruled in the point there the Attachment is in his own hands there the other pleaded there was no debt It is there ruled that the debt is not traversable for if there be no debt then he shall have restitution in London upon the pledges It was objected That he is to swear his debt to be a true debt I answer It ought to be so intended and then if he lay a Custom to swear the Debt and we say we have sworn our Debt then we have pursued the Custom 3. It was objected that it is not shewed where the goods were whether within the jurisdiction of the City 4 E. 4. 36. there the place came not in question But in our Case we lay That the Custom is that the goods must be in London Old Entries 155 156. there it is not alleadged that the goods were within the City of London at the time of the Attachment If a Precept be awarded to the Officer who retorns that he hath not any thing within the City and upon the allegation of the Plaintiff that such a one hath goods of the Defendant in his hands was the Objection I answer If we have not proceeded well yet the Process is well enough for here is a Judgment against him in London then so long as the Judgment is in force against him he cannot have the goods 21 E. 4 23. b. It is a Rule That a stranger unto a plaint shall not be received to alleadge discontinuance in the process So the Sheriff shall not excuse himself upon an Escape that there was Error in the Judgment nor a privy shall not take advantage of it Ognels Case Trim. 31 Eliz. there lies no process of Capias by the Law upon a Recognisance but Extent or Levari facias Yet there a Capias was awarded and if the party taken escape the Sheriff shall not take advantage of the Erronious process So I desire Judgment for the Defendant And he took an Exception to the Declaration In Detinue if the Declaration be general it is good sc Licet sepius requisitu c. But here he shews that he delivered the Cloak to be redelivered upon Request and he doth not shew any particular Request but sayes generally Licet sepius requisitus Ward There is a difference betwixt Detinue and Action upon the Case For in an Action upon the Case he ought to shew a particular Request 26 H. 6. If I bail goods to redeliver upon request yet I may seise them without request Dodderidge Justice The reseisure of the goods is a Request in Law a Request with a witness a Request with effect and untill Request he hath just cause to keep them Jones Justice In Debt and Detinue the very bringing of the Action and demand of the Writ is a demand and request And if he appear at the first Summons then he excuses himself otherwise he shall be subject to damages but the Request ought not to be so precisely alleadged But if a collateral thing be to be done upon Request there to say sepius requisitus is not sufficient So if I sell a horse for 10â— to be paid upon Request there the Request must be precisely laid for it is parcel of the Contract And in Action upon the Case and upon Debt you must lay a Request Dodderidge Justice The Request is no part of the Debt for the Debt is presently due but if I make the Request to be part of the Contract there it is otherwise As if I deliver goods to redeliver to me there needeth no precise Request but if it be to redeliver upon Request there the Request ought to be alleadged for there the Request is part of the Contract The Case was adjourned till the next Term. Pasch 3 Caroli in the Kings Bench. 484. MOLE and CARTER'S Case IN an Action upon the Case upon an Assumpsit it was moved in arrest of Judgment That the Plaintiff declares that he was possessed of certain Goods viz. such c. at London And that in consideration of two shillings That the Defendant at London did promise to carrie the said Goods aboard such a Ship if the Plaintiff would deliver the Goods to him And he shewed that he did deliver the Goods to him and that he had not carried them aboard He shewed that he was possessed of the Goods but did not shew when or where he delivered the said Goods to the Defendant but said only deliberavit c. And then the Law saith that they were not delivered Jones Justice The same is but matter of Inducement to the promise and ought not to be shewed so precisely Pasch 3 Caroli in the Kings Bench. 485. FRYER and DEW'S Case DEW being sued prayed his Priviledg because he is a Commoner in Exeter Colledg in Oxford and brought Letters under the Seal of the Chancellor of Oxford certifying their Priviledg and he certifies that Dew is a Commoner as appeareth by the Certificate of Doctor Prideaux Rector of the said Colledg Whereas he ought to certifie that he is a Commoner upon his own knowledg and not upon the Certificate of another But afterwards Certificate was made of his own knowledg and then it was allowed as good The Declaration came in Hill 2 Caroli The Certificate bore date in the Vacation and he prayed his Priviledg this Easter Term. After Imparlance he comes too late to pray his Priviledg The Certificate is not that at the time of the Action brought he was a Commoner in Exeter Colledg but that now he is a Commoner And the Certificate bears date after the Action brought He ought to have said that at the time of the Action brought and now he is a Commoner in Exeter Colledg The Priviledg was allowed per Curiam Trin. 21 Jacobi in the Kings Bench. 486. TANFIELD and HIRON'S Case THe Plaintiff brought an Action upon the Case against the Defendant for delivering of a scandalous Writing to the Prince and in his Declaration he set forth what place he held in the Commonwealth and that the Defendant seeking to extenuate and draw the love and favour of the King Prince and Subjects from him did complain that the Plaintiff did much oppress the Inhabitants of Michel Tue in the County of Oxford and that he did cause Meerstones to be digged up which might be a cause of great contention amongst the Inhabitants of Tue. The Plaintiffe denyed the oppression alledged against him and the Defendant did justifie and said that I. S. being seised of the Mannor of Tue did demise certain Lands parcel thereof unto I. F. for eighty years who made a Lease of the same at Will and afterwards I. S. did Enfeoff Tanfield the Plaintiff of the said Mannor to whom the Tenants did attorn Tenants And the Defendant shewed That time out of mind the Inhabitants of the Town of Tue had Common in the Waste of the said Mannor and that a great part of the said Mannor was inclosed and the Meerstones removed
parties more may try it 30. E. 3. 2. or 39. E. 3. 2. In a Writ of Right processe issued to the Sheriff to return four Knights he returns two Knights and two Esquires without making any mention that there were no more Knights in the County the same is errour yet if two Knights and two Esquires had been returned by the assent of the parties it had been good 6. E. 6. Dyer A man cannot enter for Non-payment of Rent without a demand yet by assent of the parties it may be good 22. H. 6. 59. the triall in favour of Liberty ought to be in the same County where the Action is brought and not where the Manor is But 44. E. 3. 6. by the assent of the parties it is sufficient In the Abridgement of the Book of Assizes 48. the books are cited to the contrary there it is said to be no Law where the Coroners â—ry the panell I agree that where it is not against a fundamentall point of the common Law that the consent of the parties tollit errores Dodderidg Justice Two questions are in this case 1. If this tryall be good 2. Admitting it be not good whether the assent of the parties doth make it good First it is a meer matter in the discretion of the Justices which is not tied to any strict rule in Law In the Book of the Assizes it was tried by the Coroners because it was in the discretion of the Justices And the Coroners are Ministers to the Court and ought to attend at the Assizes The Book of the Assizes is the Report of the Cases which happened at the Assizes in the Circuits of the Justices and they are not Term cases For the Exception which is taken by him who made the Abridgment of the Book of Assizes is of no moment for the Authour thereof was but a Student and no Councellor at Law In these Courts the Coroners do not attend therefore sometimes two four or six of the Panell are chosen to try those who are challenged as the Court shall think fit and if the Triers cannot agree we put them together into a room and swear one to keep them as a Jury is kept so as you see it rests much in the discretion of the Justices Court And if there were a certain rule to try it then it ought to be strictly observed 31. Ass 10. there the triall was de Circumstantibus 2. The assent of the parties doth make it good It is not a triall in point of the right of the cause but only of the indifferency of the Ministers The Array was challenged because the Sheriffe made it at the request of one of the parties and the Sheriffe hath confessed it upon his Examination The principal Array shal be first tried and if that be quashed then the Tales shall not be tried but if it be affirmed then two of the Panell shall try the Panell and two of the Tales shall try the Tales This is a triall only of indifference and not of the fundamentall point of the Cause If the Plaintiffe require the Venire facias to the Coroners because that the Sheriffe is chosen the Defendant shall be examined if he will agree to it if he will not agree but the Sheriffe returneth the Jury the Defendant in that case shall not challenge the Jury or any of the Array The four Knights in the Writ of Right shall choose the other twenty of the Grand Assize who shall be joyned with them and they shall be the Judges of the twenty when they are named by them 39. E. 3. 2. Haughton Justice The appearance by Atturney by assent of the parties is not errour although by the Law the Plaintiffe ought for to appear in proper person Chamberlain Justice would be advised because he had not seen the Books Ley chief Justice When the whole Panel as in this case comes to be challenged then it is in the discretion of the Justices to choose triers and chiefly in this case because all the Array is partiall If the Coroners be absent 〈◊〉 is good to take two Atturneys of the Court who the Court know to be honest by their honest carriage and fair practice The assent of the parties strengthens this case It is a rule That the assent of the parties cannot make that good which is against any fundamentall point of the Law therefore it is best to view the Presidents and to draw a Jurour but that we cannot do of our selves by the Law yet with the assent of parties we may do it It is a contempt and a deceit to the Court if his assent be entred upon record and notwithstanding that the Defendant will question the matter by a Writ of Error or otherwise relinquish his consent and for such contempt the Court may commit him and fine him also But if the matter be not a matter of Record but be onely by a Rule of the Court then we may award an Attachment onely against the party In this case the triall of the Panell was good and so was it afterwards adjudged by the whole Court Quod nota Pasch 3. Caroli in the King 's Bench. 496 EVERS and OWEN's Case SAmson Evers the Guardian of Compton Evers did sue Owen the Executor of the Lady Anne Evers for a Legacy before the Councell of the Marches of Wales Henden Serjeant moved for a Prohibition and said That by Law no intent of a Will ought to be averred contrary to the words of the Will C. 5. part 68. Cheyneys case And so no equity shall be taken upon a forrain intent contrary to that which is in the Will 2. He said That the party might not sue in the Marches of Wales for a Legacie for that the party ought to sue for the same in the Ecclesiasticall Court Banks contrary They may proceed there in an Ecclesiasticall Cause wherein there is cause of equity The Statute of 34. H. 8. cap. 26. giveth power unto them to proceed as they proceeded heretofore by Commission And before that Statute they proceeded there in case of a Legacy and so are divers Presidents therefore no Prohibition is to issue Samson Evers is the Kings Atturney for the Marches of Wales and his personall attendance is requisite there And this Court cannot grant a Prohibition to stay a Suit when he cannot sue in this Court for the same thing Finch Recorder contrary If you shew Presidents yet they will not bind this Court and give power unto them to hold plea of that which they ought not to hold plea of It is usuall to grant a Prohibition if the Court of Requests holds plea of a Legacy if it be not by reason of some speciall circumstance and it is usuall to dismisse Legacies out of the Chancery And no Priviledges shal be granted unto an Executor Administrator or Guardian Hyde Chief Justice Two have an Obligation as Executors and the one releaseth it is good and a good cause of equity against him who
Jurisdiction It was adjourned Mich. 4. Caroli in the King 's Bench. 502 SHUTFORD and BOROUGH's Case IN an Action upon the Case upon a Promise the Case was this The Defendant had a dog which did kill five of the Plaintiff's sheep and the Defendant in consideration the Plaintiffe would not sue him for the said sheep and also in consideration that the Plaintiff would suffer the Defendant to do away the sheep promised to give him recompence for the said sheep upon request and the Plaintiffe alledged the promise to be made 18. Jacobi and that afterwards 2. Caroli he did request so much of the Defendant for the said sheep The Defendant pleaded in Bar the Statute of 21. Jacobi cap 16. of Limitation of Actions and alledged That the Action was not brought within six years after the cause of action accrued which was the promise And it was adjudged that the plea in Bar was not good for it was resolved That where a thing is to be done upon request that there untill request there is no cause of Action and the time and place of the request is issuable And so was resolved 1. Caroli in the Kings Bench in Peck's Case and Hill 16. Jacobi in the same Court in Hill and Wades Case and in the principall Case the request was 2. Caroli and that was within the time limited by the Statute of 21. Jacobi And the meaning of the Statute was but to barre the Plaintiffe but from the time that he had compleat cause of Action and that was not untill the request made And when divers things are to be done and performed before a man can have an Action there all these things ought to be compleated before the Action can be brought And therefore If a man promise to pay I. S. ten pound when he is married or when he is returned from Rome and ten years after the promise I. S. marrieth or returneth from Rome because the marriage or the Returne from Rome are the causes of the Action that the party shall have six years after his marriage or return to bring his Action although that the promise was made ten years before And in the principall Case the cause of Action is the breach and that cannot be untill after the Request made and where a Request is material it ought to be shewed in pleading And so it was resolved by the whole Court nemine contradicente that the Action was well brought and within the time limited by the Statute And Judgement was entred for the Plaintiffe Mich. 4. Caroli in the Star-Chamber 583 FLOYD and Sr THO. CANNON's Case IT was agreed by the Lord Keeper Coventry and the whole Court in this Case That if a man did exhibite a Bill against another for oppression and layeth in this Bill That the Defendant did oppress A. B. and C. particularly and an hundred men generally That the Plaintiffe by his witnesses must prove that the Defendant hath oppressed A. B. and C. particularly and shall not be allowed to proceed against the Defendant upon the oppression of the others layed generally before his particular oppression of A. B. and C. be proved But if the charge layed be generall and not particular as if the Plaintiffe in his Bill saith That the Defendant hath oppressed an hundred men generally there he may proceed and examine the oppression of any of them And Richardson Chief Justice of the Common Pleas said That if a man exhibiteth a Bill against another for extortion there the Sum certaine which he did extort must be laid particularly in the Bill And he cannot say that the Defendant did extort divers sums from divers men generally And so was it adjudged in Reignolds Case in this Court. Also in every oppression there ought to be a threatning of the party for the voluntary payment of a greater sum where a lesser is due cannot be said extortion And afterwards the Bill of Sir Thomas Cannon was dismissed for want of proofs ex parte Querentis Mich. 4. Caroli in the Star-Chamber 504 HUET and OVERIE's Case IN a Ryot for cutting of corn It was agreed by the whole Court That if a man hath title to corn although that he cometh with a great number to cut it with Sickles it is no Riot but if he hath not any title although that he doth not come with other Weapons then with Sickles and cutteth down the Corn it is a Riot And it was agreed by the whole Court in this Case That Witnesses which were Defendants and which are suppressed by order of the Court although that afterwards there he no proceedings against them yet they shall not be allowed of at the hearing of the Cause in that Court. And this was declared to be the constant rule of that Court. Trinit 5. Caroli in the Kings Bench. 505 The Earle of PEMBROKE and BOSTOCK's Case IN a Quare Impedit Judgment was given and the same Term a Writ of Error is delivered to the same Court before a Writ to the Bishop is awarded to admit the Clark It was holden by the whole Court That the Writ of Error ought to have been allowed without any other Supersedeas because a Writ of Error is a Supersedeas in it self Whitlock Justice If in this Writ of Error the Judgement be affirmed the Defendant in the Writ of Error shall have damage 506 The Bailiffs Aldermen Burgesses and Commonalty of Yarmouth and COWPER's Case IN a quo Warranto brought against the Bailiffs Aldermen c. they did appear by Warrant of Atturney and one of the Bailiffs named in the Warrant did not appear nor agree to it It was holden by the whole Court That the appearance of the major or greater part being recorded was sufficient And it was also holden per curiam that although the Warrant of Atturney was under another Seal then their common Seal yet being under Seal and recorded it cannot be annulled Vide 14. H. 4. If two Coroners be and one maketh a return the same is good but if the other doth deny it then it is void Mich. 8. Caroli in the Kings Bench. 507 LANCASTER's Case against KIGHTLEY and SINEWS JUdgement was given in a Scire facias against the Bail A Writ of Error was brought by the Defendant in the principall Action and the Bail And the opinion of the Court was That a Writ of Error would not lie hecause the Judgements against them were severall but they ought to have severall Writs of Error And the books of 3. H. 7. 14. 3. E. 4. 10. and 2. Eliz. Dyer 180. were vouched And so was it adjudged Hill 11. Jacobi Rot. 1377. in the Exchequer Chamber in Doctor Tennants Case Where a Writ of Error was brought by the Defendant and the Bail and it was adjudged that they could not joine in an Writ of Error but ought to have severall Writs Mich. 8. Caroli in the Kings Bench. 508 EVELEY and ESTON'S Case IN Trespass It was found That a man was Tenant in tail of
the words are upon reasonable request which implies a reasonable time to consider of it And there might be many occasions both in respect of her self and of the Common wealth that she could not at that â—ime do it And Hill 37. Eliz. in the Common Pleas PERPOYNT and THIMBELBYES Case A man Covenants to make Assurances It was adjudged hee shall have reasonable time to do it In 27. Eliz. the opinion of Popham was That if a man be bounden to make such an Assurance as Councell shall advise there if Councell advise an Assurance he is bound to make it But if it were such Reasonable Assurance as Councell shall advise There If the Councell do advise That he shall enter into seale and deliver a Bond of a thousand pound for the payment of an hundred pound at a day hee is not bound to doe it because it is not reasonable Vide 9. Ed 4. 3. cap. 6. part Bookers Case Doct. Stud. 56. 14. H. 8. 23. Secondly He said That the request in the principall Case was not according to the Covenant for the election in this case was on the womans part and not on the Covenantees part and shee was to doe the act viz. to surrender And where election is given of two things the same cannot be taken from the party and if it should be so in the principall Case the Covenantee should take away the election of the Covenanter And where the manner of Assurance is set down by the parties there they cannot vary from it and in this case the manner is set down in which the Covenanter hath the election because shee is to do the act And hee said That the woman was not bounden afterwards to surrender in Court upon this request because the request was as it were a void request And it is implyed by the words That shee in person ought to make the Surrender and so hee prayed Judgment for the Defendant It was adjourned Trinit 8. Caroli in the King 's Bench. 514. HYE and Dr. WELLS Case DOctor William Wells sued Hye in the Ecclesiasticall Court for Defamation for saying to him that hee lyed And the Plaintiffe prayed a Prohibition It was argued for the Defendant that in this Case no Prohibition should goe For it was said that by the Statute of 21. Edw. 1. of Consultation When there is no Writ given in the Chancery for the party grieved in the Temporall Court there the Spirituall Court shall have the Jurisdiction and in this Case there is no Writ given by Law And Fitzherbert Natura Brevium 53. h. a Consultation doth not lie properly but in case where a man cannot have his Recovery by the Common Law in the Kings Courts for the words of the Writ of Consultation are viz. Proviso quod quicquid in juris nostri regii derogationem cedere valcat aliqualiter per vos nullatenus attemptetur And Vide Register 149. Falsarius is to be punished in the Spirituall Court And Fitzherb Nat. Brev. 51. I. A man may sue in the Spirituall Court where a man defames him and publisheth him for false Vide Linwood in cap. de foro compâ—tenti acc Trin. 6. Jacobi in the Common Pleas Boles Case Rot. 2733. A man called a poor Vicar poor rascally Knave for which the Vicar sued him in the spirituall Court And by the opinion of the whole Court after a Prohibition had been granted upon further advice a Consultation was granted 1. It was objected That the party might be punished by the Temporall Judges and Justices for the words To which it was answered That although it might be so which in truth was denied yet the party might sue for the same in the spirituall Court And many Cases put That where the party might be punished by either Lawes that the partie had his election in what Court he would sue And therefore it was said That if a man were a drunkard he might be sued in the Ecclesiastical Court for his drunkennesse and yet he might be bounden to his good behaviour for the same by the Justices so the imputed father of a Bastard child may be sued for the offence either in the spirituall Court or at the Common Law by the Statute of 18. Eliz. and 7. Jacobi So F. N. B. 52. k. If a man sue in the spirituall Court for taking and detaining his wife from him to whom he was lawfully married if the other party sue a Prohibition for the same yet he shall have a Consultation quatenus pro restitutione uxoris suae duntaxat prosequitur and yet he may have an Action at the Common Law De uxore abducta cum bonis viri or an Action of Trespasse Maynard contrary By the Statute of Articuli Clâ—ri although that the words be generall yet they do not extend to all defamations And by Register 49. where the Suit is for defamation there the Cause ought to be expressed ought to be wholly spirituall as the Book is in 29. E. 3. and C. 7. part in Kenn's Case And in the principal Case It is not a matter affirmative which is directly spirituall And therefore 22. Jacobi where a Suit was in the Ecclesiasticall Court for these words Thou art a base and paultery Rogue a Prohibition was awarded And so Vinor and Vinors Case Trinit 7. Jacobi in the King's Bench Thou art a drunken woman Thou art drunk over night and mad in the morning 2. Hee said That Crimen falsi in the spirituall Court is meant of counterfeiting of the Seal or of Forgery and Crimen falsi cannot be intended a lie If in ordinary speech one sayes That 's a lie If the other reply You lie that is no defamation for Qui primum peccat ille facit rixam Trinit 42. Eliz. Lovegrove and Brâ—wens Case A man said to a Clark a spirituall person Thou art a Woodcock and a Foole for which words he sued him in the spirituall Court and in that Case a Prohibition was awarded It was adjourned Trinit 8. Caroli in the Kings Bench. 515 GWYN and GWYN's Case A Quod ei deforceat was brought against two they appeared and pleaded severall Pleas and the issues were found against both of them and a joint Judgement was given against them both and they brought a Writ of Error thereupon in the Kings Bench. And the opinion was That the Judgement was Erroneous and that the Writ of Error would well lie So in a Writ of Dower brought against two Tenants in common who plead severall Pleas the Judgement must be according to the Writ But Barkley said That if in a Writ of right by two the Mise is joyned but in one Issue where severall Issues are the Judgment ought to be severall Quaere quia obscurè Trinit 8. Caroli in the Kings Bench. 516 BLAND's Case THE Case was this Thomas Spence was a Lessee of Lands for one hundred years and he and Jane his Wife by Indenture for valuable consideration did assign over to Tisdale yeilding and paying
Also hee said that the Warrant of Atturney was not good although it was usuall for that they ought to follow the course of the common Law Clenche Justice There ought to be Writ of Error before that any Judgement upon the Errors can be given for to reverse the first Record The reason wherefore the certain name of the Atturney ought to be put is because if one appeare as my Atturney without my Authority I may have my Action of the Case against him which I cannot have against W. H. It was adjourned Mich. 28 29. Eliz. in the Kings Bench. 90 TAYLOR against REBERA TAylor brought an Action of Debt upon a Bond of 800l l against Rebera which Bond was endorsed with this Condition That if the Plaintiff did bring such a Ship to such a place in Greece and at the same place should stay for the space of forty dayes or so long of the forty dayes as should please the Defendant so as he might freight the Ship the Defendant should freight the Ship within forty dayes and should bring it to such a Port in England And because he had not freighted the ship and the ship was there by the space of forty dayes he brought his Action upon the Bond The Defendant pleaded that within those forty dayes viz. by the space of four and twenty dayes the said ship was laden with Hoops so as the Defendant could not freight it And the Plaintiff did demurr in Law upon the plea. Clark for the plaintiffe The Defendant hath not answered to all the time but to part onely and he had sufficient time although the ship were laden with Hoops for the space of four and twenty dayes as 35. H. 6. Barr. 162 The Master of S. Katherines leased three houses by one Indenture upon condition that the Lessee should not suffer nor harbour any lewd woman within the same houses if he were warned thereof by the Master or his servant for the time c. And if he did not put her out within six weeks after such warning that then it should be lawfull for the Master and his Successors to enter And it was shewed That the Lessee did suffer a lewd woman there to continue wherefore such a one servant of the Master gave him warning c. and the Lessee did not put her out of the house and that therefore the Master did enter which matter c. The Lessee said that after the said warning given that the Master commanded her to enter and to dwell there for six weeks after without that that she continued there by the Defendant And it was ruled by the whole Court that the Replication was not good because the Indenture is That he should not suffer any lewd woman c. As if I be bound to enfeoff you of an Acre of Laâ—d by such a time within which time you disseise me the same is no plea for that the Feoffer hath not colour to enter therefore I may enter upon him and make the Feoffment So in that case the Master had no colour to put her into possession therefore it was no plea without shewing the speciall matter Wherefore he said That he did put her out and that the Master with force c. against the will of the Lessee did put her in and there made her to stay with force and violence against the will of the Lessee for the six weeks c. and that was holden to be a good plea. So in the principall case he doth not shew that he was kept out with force but that he might cast out the Hoops and therefore the plea is not good So 3. H. 4. 8. Br. Condition 35. There was a Covenant betwixt the Lessor and Lessee That the lessor during the lease might be four dayes in a yeer in the house without being put out upon pain of one hundred pounds and the Lessor came to enter and the Lessee shut the doors and the windows It was held that was no breach of the Covenant without saying that the lessee put him out Atkins contrary The ship was to remain there to be freighted for so many dayes as it should please the Defendant of the forty dayes for to freight her therefore the first act is to arise on the plaintiffs side and the same ought to be shewed specially to have been done As 14. H. 8. 18. Br. Condition 42. Debt upon a Bond upon Condition That if the Defendant resigne the Benefice of D. unto the Plaintiff upon a Pension as they may agree by a certain day That then c. The Defendant said that he was always ready to resigne to him the Benefice and yet is in case the Plaintiff would assure him the Pension It was no Replication for the Plaintiff That he offered him a Pension unlesse he shew that he offered him a Deed thereof So 33. H. 6. A condition was That if I may enjoy such goods I will give to you such a summ of money I ought first to enjoy the goods before that I shall pay any money Also in the principall Case it is not shewed That the ship was ready there by the space of forty daies and it is a generall rule in Conditions That if the Plaintiffe himselfe be the cause of Disablement so as the Condition cannot be performed that he shall not take advantage of a Condition as in the Case of 9. H. 7. Where one is bounden to enfeoffe such a woman before such a day and the Obligee before the day doth marry the woman 35. H. 6. and 7. H. 4. If I be bounden to pay a pension to one untill he be promoted to a Benefice and he disables himselfe to take the Benefice I shall no longer pay the pension Besides he said That in the principall Case the matter could not be tryed here for the Jury cannot take notice of a thing done ultra mare But 11. H. 7. 16. a difference is taken If the thing be all to be done beyond the sea then it cannot be tried here but if part be to be done here and part beyond sea so as it is mixed it may be tried here As a Bond with condition That if the Obligor bring the Merchandizes of the Obligee from Norway beyond the sea to Lynn here that then c. So contrary If to carry goods delivered here to Burdeaux c. It was adjourned Mich. 28 29. Eliz. in the Kings Bench. 91. SHOTBOLTS Case A Man brought an Action upon the Case against another because he caused him to be indicted and arraigned c. to his damage c. And it was for a robbery and the Plaintiffe did not shew in his Declaration that he was legitimo modo acquietatus The Defendant by way of Barre said That he was acquitted modo forma as the Plaintiffe had said and in truth he doth not say that he was acquitted Cook If the Declaration be insufficient and wanteth substance then there is no cause of Action Clench Justice A man shall
but in Francis Bigot which may be regained in due time Dyer 340. there was Scintilla juris as here in our Case 19 H. 8. 7. Where Tenant in tail maketh a Feoffment and the Feoffee levieth a fine and five years pass there it is said that the Issue in tail shall have five years after the death of Tenant in tail who made the Feoffment and the reason is because he is the first to whom the right doth discend This Case was objected against me yet I answer that Tenant in tail in that Case hath right but he cannot claim it by reason of his own Feoffment he cannot say he hath right but another may say he hath right In our Case Francis Bigot cannot say he hath a Right in him but another may say he hath a Right It is like where Tenant in Fee taketh a Lease for years by Deed Indented of his own Lands He during the years cannot say that he hath Fee yet all other may say that he hath the Fee C. 4. part 127. The King shall avoid the Feoffment for the benefit of a Lunatique which Feoffment the Lunatique had made and shall not the King avoid a Feoffment which a Lunatique hath made for his own benefit viz for the benefit of the King himself I conceive that he shall Secondly Admit the right be in the person viz. in Francis Bigot yet they object that it is a right of Action and so not forfeited If this right be in the person at the time of the Attainder it shall be forfeited if it be not in his person but in Nubibus yet it shall be forfeited Tenant in tail makes a Feoffment unto the use of himself and his wife in tail if the old right of entail rest or not in his person it is forfeited to the King 34 Eliz. this very Point was then adjudged Where Tenant in tail before the Statute of 27 H. 8. of Uses made a Feoffment unto the use of himself and his wife in tail It was resolved upon mature deliberation by all the Judges of England that the old Estate tail was in such case forfeited for Treason Set this Judgment aside yet it rests upon the Statute of 26 H. 8. A general Act for forfeiture for Treason and the particular Act of 31 H. 8. which was made for the particular Attaindor of Francis Bigot I will argue argue only upon the Statute 26 H. 8. which hath three clauses First to take away Sanctuary Secondly to provide that no Treason be committed and the Offender punished The third which clause I am to deal with which giveth the forfeiture of Lands of Inheritance c These three clauses do depend upon the Preamble It was high time to make this Statute For when H. 8. excluded the Pope he was to stand upon his guard And that year of 26 H. 8. there were five several Insurrections against the King therefore it was great wisdom to bridle such persons King Ed. 6. and Queen Mary repealed divers Statutes for Treason and Felony yet left this Statute of 26 H. 8. to stand in force Anno 5 E. 6. cap. 5. this Statute of 26 H. 8. somewhat too strict was in part repealed viz. That the Church lands should not be forfeited for the Treason of the Parson This third branch doth insist upon a Purview aâ—d a Saving and both agree with the Preamble The Purview is ample Every Offender and Offenders of any manner of High Treason shall forfeit and lose c. I observe these two words in the Statute shall Forfeit those things which are forfeitable and Lose those things which are not forfeitable But it shall be lost that the heir of the Offender shall not find it shall Forfeit and lâ—se to the King his heirs and successors for ever so it is a perpetual forfeiture shall forfeit all his Lands which includes Use Estate and Right by any right title or means So you have Estate Right Title and Use Here Francis Bigot shal forfeit the Castle and Mannor of Mulgrave unto the King his heirs and Successors and he must forfeit the Land Right Title and Use otherwise it cannot be to the King for ever and what is saved to strangers all shall be saved and what will you not save to the Offender and his heirs all his Lands Right c. as was saved to strangers It was objected that it was not an Act of Assurance but an Act of Forfeiture which is not so strong as an Act of Assurance I do not doubt of the difference but how much will that difference make to this Case doth the Statute goe by way of Escheat it doth not but in case of Petty Treason Land shall Escheat but when the Statute of 25 E. 3. speaketh of High Treason the words of the said Statute are Shall forfeit the Escheat to the King But is the Right devided from the King Truely no the word Forfeit take it in nomine or in natura is as strong a word as any word of Assurance Alienare in the Statute of West 2. cap. 1. Non habeant illi potestatem alienandi so non habent illi potestatem forisfaciendi is in the nature of a Gift Com. 260. Forfeiture is a gift in Law Et fortior est dispositio legis quam hominis and so as strong as any assurance of the partie If a Statute give the Land to the King then there needeth not any Office 27 H. 8. Br. Office Com. 486. The Right vests before Office It was objected that the statute of 26 H 8. doth not extend to a right of Action but to a right of Entrie The purpose of this Act of 26 H. 8. is not to attaint any particular person as the Statute of 31 H. 8. was made for the particular Attaindor of Francis Bigot 5 E. 4. 7. Cestuy que use at the Common Law did not forfeit for Felony or Treason but by this Act of 26. H. 8. Cestuy que use shall forfeit both Use and Lands out of the hands of the Feoffees 4 E. 3. 47. 4 Ass 4. The husband seised in the right of his wife at the Common Law for Treason shall not forfeit but the profits of the lands of his wife during his life and not the Freehold it self but by this Act of 26 H. 8. the Freehold it self is forfeited 18 Eliz. in the Common Pleas Wyats Case C. 10. Lib. Entries 300. And if the Statute of 26 H. 8. had had no saving all had been forfeited from the wife 7 H. 4. 32. there it is no forfeiture yet by this Statute it is a forfeiture A right of Action shall not Escheat 44 E 3. 44 Entre Cong 38 C. 3 part the Marquess of Winchesters Case and Bowtiâ—s Case and C 7. part Inglefieldâ—s Case A right of Action per se shall not be forfeited by the Rules of the Common Law nor by any Statute can a right of Action be transferred to another but by the Common Law a right of Action may
be quashed and exonerated and discharged in the possession of the King For it is out of the Rule which is in C. 10 part 48 for the cause of quieting and repose of the Terre-Tenants otherwise it would be a cause of Suits But all Rights Tythes Actions c. might for the same reasons viz. for the quiet of the Terre-Tenants and the avoidance of Suits and Controversies be released to the Terre-Tennants By the same reason here the right of Action of Francis Bigot shall be discharged and exonerated by this forfeiture viz. for the quiet and repose of the Terre-Tenants for the Law delights in the quiet and repose of the Terre-Tenants If Francis Bigot had granted a Rent the ancient right of the tail had been charged C. 7. part 14. Where Tenant in tail makes a lease for life and grants a Rent charge and Tenant for life dieth he shall not avoid his charge although he be in of another Estate because he had a defeisible possession and an ancient right the which c. so as they could not be severed by way of conveyance and charge and no lawfull act Then I admire how he will sever this from himself by his unlawfull act viz. the Feoffment the discontinuance Lit. 169. If a man commit Treason he shall forfeit the Dower of his wife yet he doth not give the dower of his wife but it goes by way of discharge in those Lands 13 H. 7. 17. Tenant by the Curtesie in the life of his wife cannot grant his Estate of Tenant by the Curtesie to another but yet he for Felony or Treason may forfeit it viz. by way of discharge A Keeper of a Park commits Treason there the King shall not have the Office of Keeper for a forfeiture because it is an Office of trust but if he had been Keeper of the Kings Park and had been attainted there he should forfeit his Office by way of discharge and exoneration This Statute of 26 H. 8. hath been adjudged to make Land to revert and not strictly to forfeit Austin's Case cited in Walsingham's Case Tenant in tail the reversion in the King the Tenant makes a Lease for years and dies the issue accepts of the Rent and commits Treason the Lease is avoided for the King is not in by forfeiture by the Statute of 26 H. 8. but by way of Reveter by the Statute of 26 H. 8. It was objected that if Tenant in tail maketh a Feoffment and takes back an Estate for life and is attainted of Treason that he shall not forfeit his old right I agree that Case For indeed it is out of the Statute of 26 H. 8. which speaks of Inheritance and in that Case the Tenant hath but a Freehold The Statute of 26 H 8. saith that it shall be forfeited to the King his heirs and Successors And if in our Case the old right should remain then it should be a forfeiture but during the life of the Testator When the Common Law or Statute Law giveth Lands it gives the means to keep them as the Evidences So here the King is to have by force of this Statute of 26 H. 8. the Evidences The forfeiture of right is expresly within the Statute of 26 H. 8. as the forfeiture of Estate as by any right title or means for the old Estate tail is the means of Estates since 6 H. 8. And if you will take away the Foundation the Building will fall For all the Estates are drawn out of the old Estate tail The Statute of 26 H. 8. is not an Act of Attaindor for none in particular is attainted by the Act but the Act of 31 H. 8. doth attaint Francis Bigoâ— in particular It was objected that here in this case there needed not to be any express Saving I answer that there are divers Statutes of Forfeitures yet the Statutes have Savings in them so as it seems a saving in such Acts were not superfluous but necessary The Act of 33 H. 8. for the attainder of Queen Katharine there is a saving in the Act and yet an Act of Forfeiture Dyer 100. there the land vested in him in the Remainder by force of a saving in the Act so the saving is not void but operative C. 3. part Dowlies Case vid. the Earl of Arundels Case there the saving did help the wife so it appears savings are in Acts of Parliaments of Forfeiture and Acts of Attaindor Dyer 288 289. The Bishop of Durham had Jura Regalia within his Diocese and then the Statute of 26 H. 8. came now whether the Forfeiture for Treason should be taken away from the Bishop by reason of that Statute and given to the King was the doubt It was holden that of new Treasons the Bishop should not have the Forfeitures for those were not at the Common Law as the Forfeitures of Tenant in tail but that he should have the Forfeitures of Lands in Fee within his Diocese and that he had by force of the saving in the Statute so that a Saving is necessary and operative Com. Nichols's Case there Harpers opinion that there needs no saving to strangers but yet a saving is necessary for the Partie and the Issue if they have any thing as well as strangers vid. C. 3. part Lincoln Colledg Case It is the Office of a good Interpreter to make all the parts of a Statute to stand together Com. 559. By these general words Lose and Forfeit and by excluding of the heir in the saving the heir is bound So the Judges have made use of a Saving for it is operative 2 Ma. Austin's Case cited in Walsinghams Case Tenant in tail the Reversion in the Crown Tenant in tail made a Lease for years and levied a Fine to the King the King shall not avoid the Lease for the King came in in the Reverter but in such Case if he be attainted of Treason then the King shall avoid the Lease So a Statute of Forfeiture is stronger then a Statute of Conveyance By this Statute of 26 H. 8. Church Land was forfeited for so I find in the Statute of Monasteries which excepts such Church Lands to be forfeited for Treason Dyer Cardinal Poole being attained did forfeit his Deanary and yet he was not seised thereof in jure suo proprio for it was jus Ecclesiae 27 E. 3. 89. A writ of Right of Advowson by a Dean and he counteth that it is Jus Ecclesiae and exception that it is not Jus suae Ecclesiae But the Exception was disallowed for the Jus is not in his natural capacitie but in his politique capacitie and yet by this Statute of 26 H. 8. such Church Land was forfeited for Treason this is a stronger Case then our Case Vide C. 9. part Beaumont's Case Land is given to husband and wife in tail and the husband is attainted of Treason the wife is then Tenant in tail yet the Land is forfeited against the issue although it be but a possibility for the whole estate