the Process was lest at the Defendants house being sixty miles from London and twelve pence to bear his charges which the party did accept And the party who served the Process promised the Defendant sufficient costs And here Mr. Iones who was of Counsel with the Defendant took three Exceptions 1. Because the Process was not served upon the Defendant as the Statute requires but a Note only thereof and it being a Penal Statute ought to be taken strictly 2. There was but 12 d. delivered to the Defendant at the time of the serving of the Process which is no reasonable sum for costs and charges according to the distance of place as the Statute speaks and therefore the promise that he would give him sufficient for his costs afterwards is not good 3. The party who recovers by force of this Statute ought to be a party grieved and damnified as the Statute speaks by the not appearance of the Witness and because the Plaintiff hath not averred that he had loss thereby by his not appearance therefore he conceived the Action not maintenable For the first the Court was clearly against him because it is the common course to put divers in one Process and to serve Tickets or to give notice to the first persons who are summoned and to leave the Process it self with the last only and that is the usual course in Chancery to put many in one Subpoena and to leave a Ticket with one and the Label with another and the Writ with the third and that is the common practice and so the Statute ought to be expounded But if there be one only in the Process there the Process it self ought to be left with the party For the second the Court did conceive That the acceptance should bind the Defendant but if he had refused it there he had not incurred the penalty of the Statute For he ought to have tendred sufficient costs according to the distance of the place which 12 d. was not it being 60 miles distant But for the third and last Exception the Court was clear of Opinion That the Action would not lie for want of Averment that the Plaintiff was damnified for the not appearance of the Defendant And so it was adjudged that the Plaintiff Nihil capiat per Billam 44. The Opinion of the Court was That whereas one said of another That he will prove that he hath stollen his Books that the words are actionable for they imply an affirmative and are as much as if he had said That he hath stollen my Books And so if I say of another That I will bring him before a Iustice of Peace for I will prove that he hath stollen c. although the first words are not actionable yet the last are Molton against Clapham 45. THe Defendant upon reading Affidavits in Court openly in the presence and hearing of the Justices and Lawyers said There is not a word true in the Affidavits which I will prove by forty Witnesses and these words were alledged to be spoken maliciously And yet the Court was clear of Opinion that they will not bear Action And the reason was because they are common words here and usual where an Action is depending betwixt two for one to say That the Affidavit made by the other is not true because it is in defence of his cause And so it was here The Defendant spake the words upon the reading of the Affidavits in a cause depending betwixt the Plaintiff and the Defendant And therefore if I say That J. S. hath no Title to the Land if I Claim or make Title to the Land Or if I say That J. S. is a Bastard and entitle my self to be right Heir the words are not actionable because that I pretending Title do it in defence thereof And Justice Barckley said That there are two main things in Actions for words the words themselves and causa dicendi and therefore sometimes although that the words themselves will bear Action yet they being considered causa dicendi sometimes they will not bear Action Now in our Case causa dicendi was in his own defence or his Title and therefore they will not bear Action 46. Outlawry was reversed for these two Errors 1. Because it was not shewed where the party Outlawed was inhabitant 2. Because it was shewed that Proclamations were made but not that Proclamation was made at the Parish-Church where c. Buckley against Skinner 47. THere was Exception taken because that the Defendant pleaded and justified the Trespass cum equis and said nothing to the Trespass done porcis bidentibus And the Opinion of the Court was That the Plea was insufficient for the whole And Justice Iones said That if several Trespasses are done to me and I bring Trespass and the Defendant justifie for one or two and sayeth nothing to the other that the whole Plea is naught because the Plea is intire as to the Plaintiff and the demurrer is intire also But Justice Barckley was of Opinion that the Plea was naught quoad c. only and that Judgment should be given for the other Vide 11. Rep. 6. b. Gomersall and Gomersalls Case 48. A man pleaded a descent of a Copy-hold in Fee The Defendant to take away the descent pleaded That the Ancestor did surrender to the use of another absque hoc that the Copy-holder died seised And the Opinion of the Court was That it was no good traverse because he traversed that which needed not to be traversed for being Copy-hold and having pleaded a surrender of it the party cannot have it again if not by surrender Like the Case of a Lease for years Helliers Case 6 Rep. 25. b. For as none can have a Lease for years but by lawful conveyance so none can have a Copy-hold Estate if not by surrender But if a man plead a descent of inheritance at the Common Law there the defendant may plead a feoffment made by the Ancestor absque hoc that he died seised because he may have an estate by disseism after the feofment Traverse of the descent and not of the dying seised is not good so was it adjudged in this Court Vide 24 H. 8. Dyer 49. It was moved in Arrest of Judgment upon an Action of Trespass upon the Statute of 2 E. 6. cap. 13. because that the Plaintiff said that the Defendant was Occupier only and did not shâ—w how he occupied or what interest he had And the 〈◊〉 â—pinion of the Court was that he need not because here he makes no Title and whosoever it be that taketh the Tithe is a Trespasser And therefore Justice Iones said That it was adjudged in this Court that an Action lieth against the disseisor for the Tithes so against a servant and so if one cut them and another carry them away an Action lieth against any of them 50. The Parish of Ethelburrow in London alledged a custome that the greater part of the Parishioners have used to
granted And here it was agreed That if a woman do convey a Lease in trust for her use and afterwards marrieth that in such case it lies not in the power of the husband to dispose of it and if the wife die the husband shall not have it but the Executor of the wife and so it was said it was resolved in Chancery 70. Barckley and Crooke there being no other Justice at that time in Court said That upon a Petition to the Archbishop or any other Ecclesiastical Court no Prohibition lieth But there ought to be a Suit in the Ecclesiastical court And by them a Libel may be in the Ecclesiastical court for not repairing a way that leadeth to Church but not for repairing of a high-way and upon suggestion that the Libel was for repairing a high-way a Prohibition was granted 71. Many Indictments were exhibited severally against several men because each by himself suffered his door to be unrepaired and it was shewed in the Indictments that every one of them ought to repair And thereupon it was moved that they might be quashed but the Court would not quash them without certificate that the parties had repaired their doors but it was granted that Process should be stayed upon motion of Counsel that reparation should be immediately done But at the same time many Indictments for not repairing of the high-way which the Parishioners ought to have repaired according as it was found by Verdict the same Term were quashed for the same defect But in truth there was another fault in the Indictment for that it was joynt one only whereas there ought to have been several Indictments but they were quashed for the first defect 72. A Replevin was brought in an Inferiour Court and no Pledges de retorno habendo were taken by the Sheriff according to the Statute of West 2. c. 2. After the Plaint was removed into this Court by a Recordari and after Verdict given it was moved in arrest of Judgment want of Pledges for thâ—se reasons because the Pledges de retorno habendo are given by that Statute as 2 H. 6. 15. and 9. H. 6. 42. b. And that Statute saith That Pledges shall be taken by the Sheriff and therefore no other can take them notwithstanding that Pledges might be found here in Court And 3 H. 6. 3. and F. N. B. 72. a. say That where Pledges are found that they shall remain notwithstanding the removal of the Plaint by Recordari and the reason is because the Sheriff is a special Officer chosen to that purpose by the Statute and therefore no other can take them Besides there would be a failer of Justice if the Court should put in Pledges for then there might be no remedy against the Sheriff for that he found no Pledges and no remedy against the Pledges because they are not found according to the Statute and so a failer of Justice and by that means the Sheriff should frustrate and avoid the Statute for no Pledges should ever be found and so he should take advantage of his own laches and wrong Farther it was objected that these proceedings are the judicial act of the Court and therefore the Court will not alter or diminish them L. Entries 1. and 3 H. 6. And farther it was said That the cases of Young and Young and Dr. Hussies case adjudged in this Court That Pledges may be found at any time before Judgment were in Action upon the Case and not in Replevine as our case is for which there is special Provision made by the Statute But it was answered and agreed by the whole Court that Pledges may be found by this Court for the Pledges given by the Statute of West 2. are only to give remedy against the Sheriff and if the Sheriff do not his duty but surceaseth we may as at the Common Law put in Pledges and yet notwithstanding remedy may be against the Sheriff upon the Statute for his neglect And farther it was agreed That Pledges may be found at any time before Judgment as in Young and Youngs Case and Dr. Hussies Case it was adjudged And Judgment was affirmed 73. There can be no second Execution granted out before that the first be returned 74. Two Joyntenants of a Rectory agree with some of their Parishioners that they shall pay so much for Tithes and notwithstanding one of thâ—m sueth for Tithes in the Ecclesiastical court and a Prohibiâ—ion was prayed because that one of them cannot sue without the other and the Court would not grant it and their reason was because although that one of them cannot sue without the other by our Law yet perhaps the spiritual Court will permit it 75. Husband and Wife brought a Writ of conspiracie and it was adjudged that it would not lie And Iones cited this case That Husband and Wife brought an Action upon the Case against another for words viz. That the Husband and Wife had bewitched another and it was not good because that the wife cannot joyn for Conspiracie made against the husband nor for trespass of Battery as the Book is 9 E. 4. But Justice Crook was of Opinion That the Conspiracie would well lie because that the Indictment was matter of Record and therefore not meerly Personal but the whole Court was against him and Justice Barckley took the difference where they sue for Perâ—onal wrong done to thâ—m there they shall not joyn but wherâ— they have a joynâ— Interest as in case of a Quare impedit there they shall joyn Thurston against Ummons in Error to Reverse a Iudgment in Bristow 76. THurston brought an Action upon the Case against Vmmons declared That the Defendant brought an Action against him at the Suit of Hull without his privity And thereupon did arrest and imprison the Plaintiff by reason whereof all his Creditors came upon him and thereby that he had lost his Credit c. And a Verdict was found for the Plaintiff and thereupon Error brought and two Errors were alledged 1. That the Action will not lie because in truth there was a just Debt due to Hull in whose name he sued 2. Because it is not shewed that the causes of Actions which the other Creditors had against him did arise within the Jurisdiction of the Court of Bristow And notwithstanding the first Error alledged Judgment was affirmed by the whole Court upon this difference where Hull himself sueth or commenceth Suit against the Plaintiff there although by that Suit he draw all the Creditors upon the back of him and so perhaps undo him yet because it was a lawful act no Action upon the Case lieth against him But where one commenceth Suit against another in the name of another and without his privity that is Maintenance which is a tortious Act and therefore an Action will lie so in the principal case As to the second Error alledged the Court differed in Opinion Barkley That the damages were ill assessed because they were given aswel for
age should be which should be a great mischief And where it is objected it may be for his benefit To that he answered that the Law will not leave that to him to judge what shall be for his benefit what not and to this purpose amongst other he cited it to be adjudged That where an Infant took a shop for his trading rendring renâ— and in debt brought for the rent the Infant pleaded his Infancie the other replied that it was for his benefit and livâ—lihood and yet it was adjudged for the Infant vid. 13 H. 4. 12. 10 H. 6. 14. Books in the point and therefore he prayed that Judgment might be stayed Bramston Heath and Mallet Justices Barckley being then impeached for High Treason by the Parliament were clear of Opinion That the submission by an Infant was void and they all agreed That if the Infant was not bound that the man of full age should not be bound so that it should be either totally good or totally void But Ward who was of Counsel with the Plaintiff said that the case was not that the infant submitted himself to the award but that a man of full age bound himself that the Infant should perform the Award which was said by the Court quite to alter the Case To that Trevor said that the case is all one for there cannot be an Award if there be not first submission and then the submission being void the Award will be void and so by consequence the Bond and to prove it he cited 10 Rep. 171. b. where it was adjudged that the non-performance of a void Award did not forfeit the Bonâ— and many other Cases to that purpose And the Court agreed That if the Condition of a Bond recite that where an Infaâ—â— hath submitted himself to an Award that the Defendant doth bind himself that the Infant shall perform it that the samâ— makes the Bond void because the submission being void allâ— void and therefore day was given to view the Record 190. A. and B. are indicted for murder B. flies and A. brings a Certiorare to remove the Indictment into the Kingâ— Bench Whether the whole Record be removed or but partâ— Keeling the younger said that all is removed and that theâ— cannot be a Transcript in this Case because he said the Writ saith Recordum processus cum omnibus ea tangentibus but the Chief Justice doubted of it and he said that the Opinion of Markham in one of our Books is against it and he said it should be a mischievous case if it should be so for so the other might be attainted here by Outlawry who knew not of it and note that Bramston Chief Justice said That the Clerk of the Assises might bring in the Indictment propriis manibus if he would without a Certiorare 190. A man was outlawed for Murder and died his Administrator brought a Writ of Error to reverse the Outlawry and it was prayed that he might appear by Atturney and by Bramston Chief Justice and Justice Mallet none other being then in Court it was granted that he might for they said that the reason wherefore the party himself was bound to appear in proper person is that he may stand rectus in Curia and that he may answer to the matter in fact which reason fails in this case and therefore the Administrator may Appear by Attorney 191. One said of Mr. Hawes these words viz. My Cozen Hawes hath spoken against the Book of Common Prayer and said it is not fit to be read in the Church upon which Hawes brought an Action upon the case and shewed how that he was cited into the Ecclesiastical Court by the Defendant and had paid several sums c. The Defendant denied the speaking of these words upon which they were at issue and it was found for the Plaintiff and now it was moved by Keeling for stay of Judgment That the words are not Actionable as to say A man hath spoken against a penal Law which doth not inflict punishment of life and member will not bear Action and the punishment which is inflicted by the Statute of 1 Eliz. cap. 2. is pecuniary only and not corporal but in default of payment of the sum that he shall be imprisoned for such a time which meerly depends upon the non-payment and is incertain And by the same reason he said to say of a man that he hath not Bowe and Arrows in his house or not a Gun or to say of a man That he hath spoken against any penal Law whatsoever would bear Action which should be unreasonable wherefore he prayed that Judgment might be stayed Brown contrary the words are actionable because that if it was true that he spoke them he subjected himself to imprisonment by the Statute of 1 Eliz. although not directly yet in default of payment so as there might be corporal damage and to prove it he cited Anne Davies Case 4 Rep. 17. a. where it is said that to say that a woman hath a Bastard will bear Action because that if it were true she was punishable by the Statute of 18 Eliz. Further he said that if the words are not Actionable yet the Action will lie for the special damage which the Plaintiff hath suffered in the Ecclesiastical Court Justice Mallet the words of themselves are not Actionable because that the corporal punishment given by the Statute doth depend upon the non-payment and is not absolute of it self but the Action will lie for the temporal damage and therefore he conceived that the Plaintiff ought to have Judgment Justice Heath that the Plaintiff ought to have Judgment for the pecuniary Mulct is a good cause of Action there being in default of payment a corporal punishment given But here is not only injuria but damnum also which are the foundations of the Action upon the Case and if the words of themselves be not Actionable yet the Action will lie for the damage that the Plaintiff here suffered by the citation in the spiritual Court Bramston Chief Justice doubted it and he conceived it hard that the words should bear Action because as he said the corporal punishment doth meerly depend upon the not payment and upon the same reason words upon every penal Law should bear Action and therefore this being a leading Case he took time to consider of it It was said To say of a man that he had received a Romish Priest was adjudged Actionable and that was agreed because it is Felony At another day the Case was moved again and Justice Mallet was of the same Opinion as before viz. That the words themselves were not actionable but for the special damage that the Action would lie and he said that one said of another That he was a Recusant for which an Action was brought in the Common Pleas and he conceived the Action would not lie Justice Heath was of the same Opinion as before that the words oâ— themselves would bear Actioâ— and
thing cannot be apportioned 100 pl 172. Where an Arbitrament shall be said to be incertain where not 13. pl. 42. Where an Award shall be said to be according to the submission where not 77. pl. 122. The submission of an Infant to an Arbitrament is void 111. pl. 189. 141. pl. 215. Arrerages Grantee of a Rent charge in see distraines for Arrerages and then grants it over whether the Arrerages are lost or not quaere 103. pl. 178 Assent and Consent An Executor is compellable in the Ecclesiastical Court to assent to a Legacy 96 pl. 167. What shall be said a good assent to a Legacy and where an assent after the death of the Devisee shall be good where not 137. pl. 209. Assets Where Assets or not Assets may be tried by the Spiritual Court See Tit. Iâ—risdiction Assignee Assignments A Feme sole conveys a terme in trust and marries the Husband assignes it over the trust passes not the Estate 88. pl. 141. Assumpsit Where there is a mutual and absolute promise he that brings the Action needs not to say qâ—od paratus est to do the thing which he promisâ—d and that the other refused to accept it otherwise where the promise is conditional 75. pl. 114. Promise not to exercise ones Trade in such a Town is good otherwise in case of a Bond. 77. pl. 121. 191. pl. 238. Promise made to an Attorney of one Court for Sollicitation of a Cause in another Court is a good consideration upon which to ground an Assumpsit 78. pl. 123. Promise is an entire thing and cannot be apportioned See Tit. Apportionment Attachment An Attachment lies against the Steward of an inferiour Court for dividing of Actions 141. pl. 214. See more of Attachments in Title Contempt Attorney Infant cannot be an Attorney 92. pl. 154. An Administrator brought a writ of Error to reverse the Outlawry of the intestate for murder and allowed to appear by Attorney 113. pl. 190. An Attorney at Common Law is an Attorney in every inferiour Court and therefore cannot be refused 141. pl. 214. Audita querela In an Audita querela the Law doth not require such strictness of pleadiâ—g as in other Actions 69. pl. 108. Averment Where and in what Cases an Averment shall be good and necesâ—ary and where not 1. pl. 3. 15. pl. 37. 19. 62. pl. 96. Avowry Grantee of a Rent charge in Fee distrains for Arrerages and then grants it over whether he ought to avow or justifie quaere 103. pl. 178. Bailiff SHeriff of a County makes a Mandat Balâ—vis suis to take the body of a man and the Bailiffs of a Liberty retorn a Rescous and good 25. pl. 58. Bankrupts An Inholder is not within the Statutes of Bankrupts Copyhold Land is No Inholder at the time of the purchase but afterwards not within the Statutes 34 pl. 67. Baron Feme What things of the Wives are given by the Law and the intermarriage to the Husband what not and what things he shall gain by Letters of Administration after her decease 44. pl 69. Baron and Feme cannot joyn in a Writ of Conspiracie in what other Cases they may joyn 47. pl. 75. See 212. pl. 249. Whether Trover and Conversion against a Baron and Feme and a count of a conversion ad usum 〈◊〉 be 〈◊〉 or not quaere 60 pl. 94. Seâ— 82. pl. 134. Feme â—ole conveys a 〈…〉 her Husâ—and that shall â—e covenants with her 〈◊〉 to intermeddle with it and yet after marriage assignes it over the Feme shall have remedy in Equity 88 pl. 141. Baron and Feme present to a Church to which they have no right this gains nothing to the Feme otherwise when they enter into Land or when the Feme hath right 90. pl. 146. One said of the Wife of another that she was a Bawd and kept a Bawdy-house for which they joyned in Action and declared ad damnum ipsorum and held good 212 pl. 249. Bar. Bar in one Ejectione firme â—is a Bar another brought for the same Ejectment but not for a new Ejectment 59. pl. 93. Plea in bar incertain is naught See Tit. Pleadings c. Tenant for life the Reversion to an Ideot an Uncle heir apparent to the Ideot levyes a Fine and dyes Tenant for life dyes the Ideot dyes whether the Issue of the Uncle who levied the Fine shall be barred by it or not quaere 94. pl. 164. 146. pl. 216. Certiorari UPon a Certiorari to remove an Indictment of â—orcible entry denier of one shall not 〈◊〉 the others of the benefit of the Certiorari they offering security according to the Statute of 21 Iac ' and the Sureties being worth ten pounds cannot be reâ—used and after a Certiorari brought and tender of sufficient sureties the Justices proceedings are coram non judice 27. pl. 63. A. and B. were indicted for a murder B. flies and A. brings a Certiorari to remove the Indictment into the Kings Bench whether all the Record be removed or but part quaere 112. pl. 190. Certiorari lies to remove the proceedings of the Commissioners of Sewers See Title Sewers Cessante causa cessat effectus Outlawry reversed the Original is revived for Cessanto cause c. 9. pl. 21. Chancery After Execution and Moneys levied the Lord Keeper cannot order the Money to remain in the Sheriffs hands or that the Plaintiff shall not call for it 54. pl. 81. Charter of Pardon Whether a Pardon of the King of Felony homicide c. doth pardon murder or not quaere 213. pl. 250. Commission Commissioners Commissioners execute a Warrant with a stranger to the Warrant yet good 92. pl. 155. Confirmation Baron and Feme Donees in special Tailâ— the Baron levies a Fine and dyes he in the Reversion confirmes to the Wife her Estate to have to her and her Heirs of her body by the Husband-ingendred what is wrought by this Confirmation quaere 146. pl. 216. Consideration What shall be said a good Consideration upon which to ground an Assumpsit what not 55 pl. 86. 78. pl. 123. Contempt Attachment ought not to be granted against the Sheriff for Contempt of his Bailiffs 54. pl. 81. Upon Error brought notice ought to be given to the Sheriff otherwise he shall not incur a Contempt for serving execution 54. pl. 81. No Attachment without an Affidavit in-writing 129. pl. 208. Attachment lies against the Steward of an inferiour Court for dividing of Actions 141. pl. 214. Copyhold Copyholds not granted in Reversion except by Custom 6. pl. 13. Copyhold is within the Statutes of 13 Q. 7. and 1 Iac. 1. of Bankrupts 36. The King grants a Copyhold for life generally whether this destroys the Copy-hold or not quaere Descent of a Copyhold shall not take away an entry 6. pl. 13. Coram non judice After a Certiorari brought to remove an Indictment of forcible entry and tender of sufficient sureties according to the Statute of 21 Iac. the proceedings of the Justices
23. 3 E. 3. 330 305. Besides the party is not bound to tarry till the Bailiffs come in and beat him 2 H. 4. 8. 19 H. 6. 31. 34 H. 6. 16. 43 Ass. pl 31. 3. This Authority which is given to the Kings Officer is given by the Law and if he execute it according to the Law the Law will protect him but if he exceed the priviledge given him by the Law then all he doth is illegal and he loseth its protection And he resembled it to the 6 Carpenters case C. 6. part Farther one may pretend he hath such a warrant when he hath it not of purpose to rob or do some other mischief And it was agreed by all the Justices nullo contradicente that it was not Murder but that it was Manslaughter for this reason especially because the Officer was doing an unlawful act not warranted by Law and therefore it was at his peril if he were killed And farther upon this difference there ought to be malice in fact or in Law to make Murder but in this Case there is none of them for it is apparent that there was no malice in fact and there is no malice implied for then it ought to be where a man kills another without any provocation or the Minister of Justice in the due and lawful execution of his Office which is not our Case for here he did an unlawful act at the time he was killed and therefore it was not Murder but Manslaughter There was a Case tried at the Sessions in the Old-Baily which was thus One Lovell had two Maid-servants and one of them without his knowledge had received into the house a Chare-woman who all being in their beds by her negligence let a Thief into the house and afterwards called out Thieves Thieves and afterwards Lovell came out of his Bed with a Sword in his hand and the Chare-woman calling to mind that she was there without his privity or his wifes hid her self behind the Dresser and Lovell's wife espying her there cried out Thieves Thieves for which Lovell came and ran her into the brest with his Sword And the Opinion of the Justices at the Old-Baily and also of all the Justices of the Kings Bench was That it was neither Murder nor Manslaughter Not Murder because there was no forethought malice not Manslaughter because he supposed her to be a Thief and if she had been a Thief then it was clear that it was not Manslaughter 8. It was resolved in the Chancery as the Judges of the Kings Bench said That where the Son is of full age and is ravished that the Father shall not recover Damages because the Son being of full age might marry himself without the consent of the Father and that was the reason given as I conceive and the Case was said to be Sir Francis Lees Case 9. The Book of Canons is that the Parson may Elect one Church-warden and the Parishioners another 10. There can be no Surrender without the Consent of the Reversioner 11. It was Libelled in the Ecclesiastical Court for these words Thou art a Drunkard or usest to be drunk thrice a week And thereupon Prohibition was Prayed and Granted and it was said and agreed That so it was adjudged betwixt Vinior and Vinior in this Court The Case in Dyer 254. b. where the Presentee was refused because he was a common haunter of Taverns c. was by Justice Barckley denied to be Law and so agreed by Justice Iones the Lord Chief Justice and Justice Crooke being absent But Justice Barckley was utterly against the Prohibition 1. Because the Action in the Ecclesiastical Court is only pro salute animae And 2. Because that Drunkenness is in their Articles and Presentable But Justice Iones granted a Prohibition and said that Linwood said well That if all things which are against the Law of God or words to that effect should be tried in the Ecclesiastical Court the Jurisdiction of the Temporal Court should utterly be destroyed 12. If there be an Indictment of Forcible Entry if it appear that the Plaintiff had seisin at the time of the Writ brought there can be no Writ of Restitution for the Statute â—aith If he Enter with Force or keep him out with Force but yet in that case the King shall have his Fine And there was an Indictment which was a principal Case at Bar which was That the Defendant adtunc adhuc doth keep the possession forcibly whereas the Plaintiff was in possession And thereupon a Writ of Restitution was awarded by reason of the word adhuc 3 E. 4. 19. it was adjudged That where there is Forcible Entry and Reteiner with Force that both are punishable although the Statute of 8 H. 6. 9. be in the disjunctive 13. Descent of a Copy-hold shall not take away Entry There ought to be a custome to enable the Lord of a Mannor to grant a Copy-hold in Reversion 14. In the Council of Marches of Wales they proceed according to Directions and they cannot exceed them and they 〈…〉 with Freehold for it is not within their 〈…〉 And they cannot hold Plea of Debt above fifty poundâ— 15. An Assignment of Rent to a Woman out of Land of which she is Dowable by Word is good but if she be not Dowable of the Land then the Assignment by Word is not good and void because that in the first Case it is according to common Right but in the last not 33 H. 6. 16. In a Writ of Error to Reverse a Judgment in an Action of Debt upon an Arbitrament the Error assigned was this That two did refer themselves to Arbitrament of their two several Arbitrators and there is no word of Submission that the same is Error and there was Error in the Entry of the Judgment the entry of which was in this manner Consideratum est and per Curiam is omitted and left out And for these Errors the Judgment was Reversed Smith's Case 17. ONe said of him Thou art forsworn and hast taken a false Oath at Hereford Assises against such a one naming the party And the Opinion of the Court the Chief Justice and Justice Crooke being absent was against the Action But they conceived that the Action would have lied if the Defendant had said Thou art forsworn and hast taken a false Oath at the Assises against such an one with Averment that he was sworn in the Cause 18. It was said at the Bar That it was adjudged in this Court in Appletons Case That where a man said unto another by way of Interrogatory Where is my Piece thou stolest from me that it was actionable Justice Iones remembred this case where one said J. S. told me that J. N. stole a Horse but I do not believe him This with Averment that I. S. did not say any such thing would bear an Action Justice Barkley said That an Action was brought upon these words You are no Thief and that these words with Averment which
imply an affirmative will bear an Action 19. It was said to a Merchant That he was a cousening Knave And the Opinion of the Court was the chief Justice and Justice Crooke being absent that the words were not actionable because he doth not touch him in his Profession for the words are too general But it was said That to call him Bankrupt was actionable And mall Cases where a man is touched in his Profession the words are actionable But to call a Lawyer a Bankrupt is not actionable Justice Iones said that Serjeant Heath brought an Action for these words One said of him That he had Vndone many and it was adjudged actionable because he touched him in his Profession 20. Kingston upon Hull is a Particular and Limited Jurisdiction and they held Plea of a Bond which was made out of their Jurisdiction and thereupon a Capias was awarded against the Obligor who was arrested upon it and suffered by the Sheriff to escape And the Opinion of the Court was clear That no escape would lie against the Sheriff upon the difference in the case of the Marshalsea That if the Court hold Plea of a thing within their Jurisdiction but proceed erroneously that it is avoidable by Error but if they have not Jurisdiction of the cause all is void and coram non Iudice 11 H. 4. and 19 E. 4. Acc. So in the principal Case for they held Plea of a thing which was out of their Jurisdiction and therefore the whole proceeding being void no Action can lie against the Sheriff for there was no Escape 21. Where a man is Outlawed and the Outlawry reversed notwithstanding the Original doth remain and the cause that the Original was determined was the Outlawry and now Cessante causa cessat effectus 22. A man made a Lease for years with exception of divers things and that the Lessee shall have conveniens lignum non sâ—â—ccidendo c. vendendo arbores c. Now the Lessee cut down Trees and the Lessor brought an Action of Covenant and the Opinion of the Court was That the Action would lie and that it is as a Covenant on the part of the Lessee because the Law gives him reasonable Estovers and by this Covenant he abridgeth his Priviledge 23. Justice Iones said and so it was agreed by the Court In what case soever there is a Contract made to the Testator or the Intestate or any thing which ariseth by Contract there an Action will lie for the Executor or Administrator but Personal Actions die with the Testator or Intestate 24. The Administrators of an Executor shall not sue a Scire facias upon a Judgment given for the Testator because the Testator now died Intestate because there is no privity And so it hath been many times adjudged 1 Rep. 96. a. 5 Rep. 9. b. The Earl of Oxford and Waterhouse Case in a Writ of Error to reverse a Fine 25. WAterhouse levied a Fine the Earl of Oxford pleaded that he was beyond Sea at the time of the Fine levied Waterhouse replied That he came here into England in August within the five years and upon that they were at issue The Jury found that he came over in Iuly And notwithstanding the Opinion of the Court was clear That the Writ of Error did not lie For although the Jury have found that he came over in Iuly yet the substance of the matter is that he was in England so as he might have made his Claim and therefore the Fine should bar him And Justice Barckley compared it to the Case of 10 Eliz. Dyer 271. b. which Case is a Quaere in Dyer but Resolved in the 6 Rep. 47. a. A man brought Debt against an Heir who pleaded that he had nothing by Descent The Plaintiff pleaded that he had Assets in London and the Jury found Assets in Cornwal and good for the substance is whether he had Assets or not 26. If a Nobleman who is not a Baron or Earl of this Realm in an Action brought against him or by him be named Knight and Earl of such a place it is good because that although he cannot be sued or sue another by the name of Earl Baron c. yet by the name of Knight he may and that is sufficient 27. Writ of Error was brought here to reverse a Judgment given in Ireland it is a Supersedeas to the Execution for although the Record it self is not sent over for fear of losing the same in the water or otherwise yet a transcript is made thereof which is all one And Justice Barckley compared it to the Case where a Writ of Error is brought in this Court to reverse a Fine in the Common Pleas there the Record it self is not sent but a Transcript thereof because we have not a Cirographer to receive it but the Transcript is all one Sir John Compton's Case upon the Statute of Winchester 13 Ed. 1. and 27 Eliz. of Robberies 28. SIr Iohn Compton Knight brought an Action against the Hundred of Olison or the like name for a Robbery done upon Red-hill in the County of Surry within the aforesaid Hundred and the Robbery was done upon his man and five hundred and ten pounds was taken from him And in this Case it was agreed by the Justices That although there be a remisness or negligence in the party who was robbed to pursue the Robbers or that he did refuse to lend his Horse to make Hue and Cry yet this doth not take away his Action nor excuse the Hundred if notice be given with as much convenient speed as may be as the Statute of 27 Eliz. speaks for them to make Hue and Cry And although the Party who was robbed doth not know the Robbers at the present time and thereof takes his Oath before a Justice of Peace as the Statute of 27 Eliz. hath provided and afterwards comes to know them and so he affirm yet this doth not take away his Action And it was resolved also that notice given in one Hundred five miles from the place where he was robbed is sufficient and the reason is because that the party who is a stranger to the Country cannot have conusance of the nearest place or Town Chief Justice That notice given at one Town and Hue and Cry levied at another is good And the Jury found for the Plaintiff And thereupon a Quaere was made by one who was of Counsel with the Hundred Whether such persons who become Inhabitants after the Robbery and before the Iudgment whether they should contribute And Justice Barckly said That all who are Inhabitants at the time of the Execution should pay it 29. A Vicar cannot have Tithes but by Gift Composition or Prescription For all Tithes de jure do appertain to the Parson 30. A man was bound to the Good Behaviour for Suborning of Witnesses Plowden against Plowden 31. PLowden the Son brought Trespass against Plowden the Father for taking the Plaintiffs Wife cum bonis viri And
erect his Tavern For it is a disorderly Profession and not fit for every place And it was adjudged in this Court That a Brewhouse ought not to be erected in Fleet-street because it is in the heart of the City and would be annoyance to it And if one would set up a Butchers shop or a Tallow-Chandlers shop in Cheap-side it ought not to be for the great annoyance that would ensue And therefore the Mayor and Communalty may redress it And therefore the party was remanded and was advised by the Court to submit to the Government of the City Note the Recorder certified the Custom That the Mayor might appoint a place 35. Upon a Recovery in a Court-Baron against one he offered here to wage his Law And Justice Barckley doubted whether wager of Law would lie in such Case To which Justice Iones said Yes and Barckly agreed hereunto because the Recovery was in a base Court and not in a Court of Record Vide 2 E. 4. 36. No antient Mill is Tithable but Mills newly erected shall pay Tithes by the Statute of 9 E. 2. 5. Meade against Axe in a Writ of Error to reverse a Iudgment 37. THe Case was Axe brought an Action against Meade for these words spoken of the Plaintiff a Dyer by the Dâ—fendant Thou art not worth a Groat And the Plaintiff added that these words amongst Citizens of such place where they were spoken have the common acceptation and doth tant amount as the calling of him Bankrupt The Errors which were assigned by Meade Plaintiff in the Writ of Error were 1. Because it is added that the words were spoken inter diversos ligeos and doth not say Citizens of the place where they have such acceptation 2. Because that the Judgment is Consideratum est and the words per Curiam left out And the Court was clear that for these two Errors the Judgment should be reversed But the Court was clear of Opinion That the words of themselves are not actionable and that the averment in this Case was idle and to no purpose because the words of themselves imply a plain and intelligent sense and meaning to every man And it was compared to the Cases Where there is no Latine for words there where words of no signification are put to express them there they ought to be explained by an Anglicè but where the words are significant there needs not any Anglicè Now if you will explain significant words under an Anglicè contrary to the meaning and true intendment of the word it self the Anglicè is void So in our Case of Averment The reason which was conceived wherefore the words of themselves are not Actionable Because that many men in their beginnings are not worth a Groat and yet their credit is good with the world But if he had laid specially That he was damnified and haâ— lost his Credit and that none would trust him upon this special matter the words would be Actionable Bonds Case 38. IN Trespass the Plaintiff declared That the Defendant entred in his Land and did cut down and carry away two Loads of Grass in the Plaintiffs Soil in a certain piece of Ground in which the Trespass was supposed to be done to strow the floor of the Church and that he cut two Loadâ— there to estrew the floor of the Church and did not say that it is the same Trespass c. And it was adjudged Error But the Court was clear that the Prescription for cutting of grass to estrew the Church was good because it was but in the nature of an Easement And so to have a washing-place in the land of another and so the custom here in London to shoot in the land of another and so for the Inhabitants of a town to have a way over the land of another to their Church But Mr. Rolls who moved the Case at the Bar said That it was adjudged that Inhabitants of a town by custom should have an Easement over the Freehold or in the Freehold of a Stranger but not profit Apprender But as I remember the Plaintiffs Freehold lay near the Church and for that reason the Court might conceive the same to be but an Easement Vide 2 H. 3. cited by Justice Iones Vid. Gatewoods Case 6 Rep. 60. b. Conysbies Case 39. UPon the Lease of an House the Lessee Covenanted that he would Repair the House with convenient necessary and tenantable Reparations The Lessor brought Covenant and alleaged a breach of the Covenants in not repairing for want of Tiles and dawbing with Morter and did not shew that it was not Tenantable And the Opinion of the Court was that he ought to have shewed it for the house may want small Reparations as a Tile or two and a little Morter and yet have convenient necessary and tenantable Reparations 40. A Writ of Error was brought and the Error assigned was want of Pledges And the Judgment was reversed although it was after Verdict And so was it adjudged in Dr. Hussies case and Young and Youngs case in this Court and the Reason was given because that otherwise the King should lose his Amercement 41. Fish in the River are not Titheable if not by Custome 42. Two referred themselves to Arbitrement and the Arbitrators arbitrate that one of them should pay a certain sum to the other and the other in consideration thereof should acquit him of a Bond wherein they both were bounden to a third person in a 100 lib. eo circiter and it was objected That the Arbitrators had arbitrated a thing incertain by reason of these words eo circiter But the Opinion of the Court was That there was sufficient certainty because that in this Case it doth not lie in their power to know the direct sum and because a small variation is not material but if they as in Salmons case 5 Rep. will arbitrate that one shall be bound in a Bond to another and not express in what sum the same is utterly void for the incertainty Difference was taken where the Arbitrators arbitrate one party to do a thing which lieth in his power and where not without the help of a third person there the Arbitrament is void and in the principal Case the difference was taken by the Court where the Bond is forfeit and the penalty is incurred and where not or the day of payment is not incurred there payment at the day is a good discharge and acquittance but where it is incurred it is not But Justice Iones said That he might compel the Obligee upon payment although the Bond was forfeit to deliver the Bond by Subpoena in Chancery or that he suffer an Action to be brought against him and then to discharge it and pay it Goodman against VVest Debt upon the Statute of 5 Eliz. Cap. 9. 43. THere was an action brought against the Plaintiff in the Common Pleas who procured Process to issue against the Defendant for his Testimony in his Cause and a Note of
choose their Church-wardens and they chose two the Parson chose a third The Official of the Bishop gave Oath to one of them chosen by the Parish but refused to swear the other and would have sworn the party chosen by the Parson but the Parish was against it upon which the Parson Libelled in the Ecclesiastical Court And a Mandat was here praid That the Official swear the other who was chosen by the Parish and a Prohibition to stay the Suit in the Ecclesiastical Court. Upon the Mandat the Justices doubted and desired that Presidents and Records might be searched and at length upon many Motions Presidents and Records shewed a Mandat was granted But there being Suit in the Ecclesiastical Court bâ— the other whom the Parson chose a Prohibition was granted without any difficulty But at first the Counsel prayed a Prohibition for not swearing the other which the Court refused to grant because there was no proceeding in the Ecclesiastical Court and a Prohibition cannot be granted where there is no proceeding by way of Suit Vaughan against Vaughan in Action upon the Case upon Assumpsit 51. THe Defendant did promise that he would make such a Conveyance of certain Lands and pleaded That he had made it but did not shew the place where it was made And the Court was clear of Opinion that he need not for it shall be intended upon the Land And so in case of performance of Covenants it is not needful to shew the place where c. Norrice and Norrices Case 52. COpy-holder for life where the custome is That if the Tenant die seised that he shall pay a Heriot The Lord granted the Seigniory for 99 years if the Tenant should so long live And after that he made a Lease for 4000 years Tenant for Life is disseised or more properly ousted and died Here were two Questions 1. Whether there were any Heriot to be paid and admitting there were yet who should have it whether the Grantee for 99 years or he who had the 4000 years And the Court was clear of Opinion in both points without any argument 1. That a Heriot was to be paid not withstanding that the Tenant did not die seised because he had the estate in right and might have entred although he had not the possession And Justice Barckley compared it to the Case in C. 3. Rep. 35. a. in Butler and Bakers Case where a man hath one acre of Land holden in Capite and a hundred acres of Socage Land and afterwards he is disseised of the Capite Land and afterwards makes his will of all his Socage Land in that case he is a person having of Capite Land as the Statute speaks And yet that right of Capite Land shall make the devise void for the third part for notwithstanding the disseisin yet he is Tenant in Law And as to the second point the Court was clear of Opinion also That he in remainder or he that had the Estate for 4000 years for note the Action was brought by him in the Remainder for the Heriot should not have it And their reason was because the Tenant for life was not the Tenant of him who had the future interest of 4000 years but of him who had the interest for 99 years But they were not clear of opinion that the Grantee for 99 years should have the Heriot Justice Barckley was that the Grantee for 99 years should have it But Justice Iones there being then none in Court but they haesitavit And the reason of the doubt was because that eo instante that the Tenant died eodem instante the estate of the Grantee for 99 years determineth Justice Iones put this Case A Seigniory is granted for the life of the Tenant the remainder over in fee the Tenant dieth Who shall have the Ward Justice Barckley said he who is Grantee of the particular estate but Iones seemed to doubt it Vide 44 E. 3. 13. Lewes against Jones in a Writ of Error 53. JUdgment was given for Iones against Lewes in an Action brought in the Common Pleas And Lewes here brought a Writ of Error and assigned for Error That he was an infant at the time of the Action brought against him And that he appeared by Attorney whereas he ought to appear by Guardian or procheine amy The defendant pleaded in avoidance of this Writ of Error That there was no Warrant of Attorney The Plaintiff allegando shewed the Error before And the Defendant pleaded in nullo erratum est And the Judgment was reversed But the Opinion of the Court was That the better way had been for the Plaintiff to have demurred in Law for there being no warrant of Attorney there was no appearance at all and so are the Books 38 E. 3. and 14 E. 4. 54. In Vtburt and Parhams Case it was agreed That a man may be Non-suit without leave of the Court but he cannot discontinue his Suit without consent of the Court. Davis and Bellamies Case in Attaint 55. THe Defendant brought Attaint and the Verdict was affirmed and Costs prayed upon this Rule that where the Plaintiff shall have costs there the Defendant shall have costs But they were denied by the Court for that ought to be taken in the original Action and not in case of Attaint But upon the restituatur there costs shall be given but that is in the original Action 56. If two joynt-tenants be of a Rectory and one sueth for Tithes by himself only it is nâ— cause of Prohibition So if a Feme Covert sue solely upon a desamation a Prohibition shall not be granted 57. The Sheriff of a County made a Warrant Balâ—ivis suis to arrest the body of such a man and the Bayliffs of the Liberâ—y return a Rescous And Exception was taken to it because that the Warrant was Ballivis suis and the Return was made by those who were not his Bayliffs and it was adjudged for the Liberty might be within his Bayliwick and so are all the Presidents And there was another Exception because the place of the Rescous was not shewed and for that the Book of 10 E. 4. was cited for there the Rescous was adtunc ibidem and did not shew the place To that it was answered by the Court and agreed that adtunc ibidem is altogether incertain if the place be not shewed but in the principal Case the place was shewed at the first and always after that tunc ibidem only without naming of the place and adjudgâ—d good For that tunc ibidem throughout the Declaration hath reference to the place first shewed and it was adjudged good 58. Outlawry was reversed for this Error because that the Exigent was Secund exactus ad Com' meum ibidem c. 59. A Hundred may prescribe in Non decimando and it is good for it is the custome of the County which is the best Law which ever was But a Parish or a particular Town cannot prescribe in Non decimando And
the Actions brought by the other Creditors But Justice Bramston contrà That the damages were well assessed because that the Actions brought by the Creditors were added for aggravation only and the cause of the Action was the Arrest and Imprisonment like the case where a man speaks words which are in part actionable and others only put in for aggravation and damages is assessed for the whole it is good There was a third Error assigned That the Venire facias was de Warda omnium Sanctorum de Bristow without shewing in what Parish Childe against Greenhil 77. CHilde brought Trespass against Greenhill for Fishing in seperali piscaria of the Plaintiff and declared that the Defendant pisces ipsius cepit c. And Verdict found for the Plaintiff And it was moved by Saint-Iohn in Arrest of Judgement because the Plaintiff declared of taking of pisces suos whereas the Plaintiff they being ferae naturae hath not property in them Register 94 95. and F. N. B. and Book Entries 666. No count that the Defendant cepit pisces ipsiuâ— but ad valentiam c. without ipsius So Fines Case in Dyer 7 H. 6. 36. 10 H. 7. 6. 12 H. 8. 10. by Brudnell 13 E. 4. 24. 7 Rep. case of Swannes And the Book of 22 H. 6. 59. is over-ruled by the case of Swannes 34 H. 6. 24. And the same is matter of substance and therefore not helped after Verdict An Action of Trover and Conversion against husband and wife quia converterunt is not good and it is not helped after Verdict because it is matter of substance Rolls for the Defendant I agree that lepores suos or pisces suos without any more is not good But where he brings an Action of Trespass for taking them in his Soil there it is good because it is within his Soil So in our case for taking pisces suos in his several Piscary and with this difference agree 22 H. 6. 59. 43 E. 3. 24. so Regist. 93 102. 23 H. 6. tit Tresp 59. 14 H. 8. 1. and the Book of 43 E. 3. saith That in Trespass the Writ shall not say Damam suam if he do not say that it was taken in his Park or Warren or saith damam domitam or as the Book is in 22 H. 6. in my Soil or Land and by Newton he shall say there damas suis. And admit that it was not good yet I hold that it is helped after Verdict because it is not matter of Substance for whether they be pisces suos or not the Plaintiff shall recover damages Justice Barckly It is true that in a general sense they cannot be said pisces ipsius but in a particular sense they may and a man may have a special or qualified property in things which are ferae naturae three ways ratione infirmitatis ratione loci ratione privilegii and in our case the Plaintiff â—ath them by reason of Priviledge And it was agreed by the whole Court That Judgment should be affirmed upon the very difference taken by Rolls that where a man brings Trespass for taking pisces suos or lepores suos c. and the like that the Action will not lie But if he bring Trespass for fishing in his several Piscary as in our Case or for breaking of his Close and taking lepores suos c. there it will lie Pitfield against Pearce 78. IN an Ejectione firme the Case was thus Thomas Pearce the Father was seised of Lands in Fee and by Deed in consideration of Marriage did give and grant this Land to Iohn Pearce the now Defendant his second Son and to his Heirs after his death and no Livery was made Thomas Pearce died the Eldest Son entred and made a Lease to the Plaintiff who entred and upon Ejectment by the Defendant brought an Ejectione firme Twisden The only question is whether any estate passeth to the Son by the Deed and it was said there did and that by way of Covenant And it was agreed That in this Case if Livery had been made it had been void because that a Freehold cannot begin at a day to come But I may Covenant to stand seised to the use of my Son after my death So a man may surrender a Copyhold to take effect after a day to come Com. 301. So a man may bargain and sell at a day to come 1 Mar. Dyer 96. Chudleighs Case 129. 20 H. 6. 10. A use is but a trust betwixt the parties and 7 Rep. 400. There need not express words of Covenant to stand seised to an use 25 Eliz. Blithman and Blithmans case 8 Rep. 94. Besides these words dedi concessi are general words and therefore may comprehend Covenant and words shall be construed that the Deed may stand if it may be 8 Ass. 34. 7 E. 3. 9. But I agree that if the intent appeareth that it shall pass by transmutation of possession that there it shall be so taken but here his intent doth not appear to be so for if there should be Livery then the son should take nothing for the reason before given which is against his meaning Mich. 21 Iac. Rot. 2220. Buckler and Simons Case Dyer 202. Vinions case The cases cited before are in the future tense but the words are here I give c. 36 Eliz. Callard and Callards Case Stand forth Eustace reserving an estate to my self and my wife I do give thee my Land and the better Opinion was That in that case it did amount to a Livery being upon the Land for his intent is apparent Mich. 41 42 Eliz. Trelfe and Popwells Case adjudged in such case That an use shall be raised For which it was concluded that in this case there is a good estate raised to Iohn Pearce by way of Covenant Rolls I conceive that not estate is raised to Iohn Pearce by this conveyance It was objected That it shall inure by way of Covenant to raise an use I agree that if the meaning of the party may appear that he intended to pass his estate by way of raising of an use otherwise not And here is no such appearance Foxes Case in 8 Rep. is a stronger case and here it doth not appear that he meant to pass it by way of use But by the word give he intended transmutation of possession 8 Rep. Bedells case Mich. 18. Car. Rot. 2220. in the Common Pleas it was adjudged That a gift of a Remainder after the death of the grantor was void wherefore he concluded for the Plaintiff and so Judgment was given by the whole Court And Justice Iones said When a man makes a doubtful Conveyance it shall be intended a Conveyance at the Common Law And it shall not be intended that the Father would make him Tenant for life only punishable of wast Mich. 15º Car ' in the Kings Bench. 79. IT was moved for a Prohibition to the Counsel of the Marches and the Case was such A man seised of Lands in Fee
made a Feoffment to the use of himself for life the remainder in tail to I. S. He in the remainder Levied a Fine And the Counsel of the Marches upon a surmise That the Tenant for life died seised according to their Instructions would settle the possession upon the heir of Tenant for life against the Conusee For their Instructions were made That where a man had the possession by the space of three years that the same should be settled upon him until trial at Law were had But the whole Court was against it because it doth appear that he had but an estate for life and so the possession appertained to him in the remainder And here it was said by Justice Barckley that their Opinion hath been That the possession of Tenant for life should be the possession of him in the Remainder as to this purpose Note that the Principal case here was although the Case before put was also agreed for Law thus Tenant in Tail levied a Fine to the use of himself for Life the remainder in Fee to I. S. and died In that Case the Council in the Marches would settle the possession upon the heir of Tenant in tail against the Purchaser who held in by the Fine which had bar'd the estate tail by which the Issue claimed and the whole Court was against it for which cause a Prohibition was granted 80. Habeas corpora was directed to the Porter of Ludlore to bring the bodies of Iohn Shielde and William Shielde into the Kings Bench the case shortly as appears upon the retorn was this Powell the Father brought a Bill in the nature of an Information against the said Iohn and William Shield before the Council of the Marches in Wales for an unlawful Practice Combination and Procurement of a clandestine Marriage in the night betwixt Mary Shield a Maid-servant and the Son of Powell who was a Gentleman of good credit and worth the Parson also being Drunk as he himself sware and the same also being without Banes or Licence for which offence they were severally Fined to the King and an hundred Marks damages given to the Plaintiff and farther ordered by the Council that they should be imprisoned till they paid their several fines to the King and damages to the Party and found Sureties to be bound in Recognisance for their good behaviour for one year and till they knew the farther Order of the Council and these were the causes which were retorned And upon this retorn Glynn who was of Counsel with the Prisoners moved many things and many of them as was conceived by the Court altogether impertinent But the Objections which were pertinent were these First That the Councel of the Marches as this case is have no Jurisdiction because the clandestine Marriage is a thing meerly Spiritual and therefore not within their instructions The second was That they have exceeded their Instructions in that they have given damages to the party above fifty pounds For by their Instructions they ought not to hold Plea where the Principal or Damages exceed fifty pounds But as to the first he said there may be this Objection That they did not punish them for the clandeâ—â—inâ— Marriagâ— which in truth is a thing meerly Spiritual but for the unlawful Practise and Combination and for the execution of it To which he answered That they have not Juristiction of the Principal and therefore not of the Accessory here note that it was afterwards said by Bramston Chief Justice That the unlawful Practise and Combination was the Principal and the clandestine Marriage but the Accessory which was not contradicted by any Farther it was objected by Glynn That they were Imprisoned for the damages of the Plaintiff and it doth not appear whether it was at the Prayer of the Party as he ought by the Law Bankes the Kings Atturny-General contrary And as to the first Their Instructions give them power to hold Plea of unlawful Practises and Assemblies And this is an unlawful Practise and Assembly and therefore within their Instructions And although that Heresie and clandestine Marriage and such offences per se are not within their Instructions yet being clad with such unlawful circumstances and practises they are punishable by them As to the second he said The Instruction which restraineth them that they do not hold Plea above fifty pounds is only in civil Actions at the several suit of the party But there is another Instruction which gives them power where the cause is criminal to assess damages according to the quality of the Offence and at their discretions As to the third Objection he said That the Retorn being that they were in execution for the damages it ought to be meant at the Prayer of the Party otherwise it could not be For which causes he prayed thâ—â— the Prisoners might be remanded And the whole Court Crooke being absent were clear upon this Retorn That they should be remanded because it appeareth that their Fines to the King were not payed And therefore although that the other matters had been adjudged for them yet they ought to be remanded for that one And as to the Objections which were made the Court agreed with Mr. Attorney except in the point of Damages and for the same reasons given by him But as to the point of the Damages whether they have gone beyond their Instructions and so exceeded their power in giving above fifty pounds damages or not It seemed to the Court they had and as it seemed to them if the Retorn had been That the Kings Fines were paid it would have been hard to maintain that the assessing above fifty pounds damages was not out of their Instructions but because the Kings Fines were not paid they were Remanded without respect had thereunto for the reasons given before 81. It was said by the Court That when Judgment is given in this Court against another and Execution upon it and the Sheriff levieth the mony the Lord Keeper cannot order that the mony shall stay in the Sheriffs hands or order that the Plaintiff shall not call for it for notwithstanding such Order he may call for it And it was farther said by the Court That an Attachment shall not be granted against the High Sheriff for the contempt of his Bayliffs And a Writ of Error is a Supersedeas to an Execution but then there ought to be notice given to the Sheriff otherwise if he notwithstanding serve the Execution he shall not run in contempt for which an Attachment shall be granted 82. Serjeant Callis came into Court and moved this case Chapman against Chapman in Trespass done in Lands within the Dutchy of Cornwal which were Borough-English where the custome was that if there were an estate in Fee in those Lands that they should go to the younger Son according tthe custome but if in Tail the should descend to the Heir at Common Law And it was moved by him that the custom was not good because it cannot
Error was brought to reverse a Judgment given in the Common pleas and after a Certiorari and Errorâ— assigned they in the Common pleas did amend the Record And by the whole Court Crooke only absent they cannot do it for after a transmittitur they have not the Record before them And Barckley said That the difference stands betwixt the Common Pleas and the Kings Bench and betwixt the Kings Bench and the Exchequer For the Record remains always in this Court notwithstanding a Writ of Error brought in the Exchequer-chamber and therefore we may amend after Wherefore the Court said that if the thing were amendable that they would amend it But the Court of Common Pleas cannot Sewel against Reignalls 110. THe case was thus Husband and Wise did joyn in an Action of Debt in the right of the Wife as Administratrix to I. S. And the Defendant being arrested at their suit did promise to the Husband in consideration that the Husband would suffer him to go at large that he would give him so much The husband and wise did joyn in an Action upon the Case upon the promise made to the husband alone And upon Non assumpsit pleaded it was found for the Plaintiff Porter moved in arrest of Judgment that the promise being made to the husband only that they ought not to joyn in the Action Barckley the Action is well brought for the husband is Administrator in the right of the wife for otherwise the consideration were not good For if he were not Administrator then he could not suffer him to go at large and then if he be Administrator in the right of his wife the promise which is made to the husband is in judgment of Law also made to the wise and they ought to joyn in the Action But Crooke Iones and Bramston Chief Justice contrary That â—â—e Action will not lie because the promise is of a collateral thing and not touching the duty due to the wise as Executrix for then perhaps it would have been otherwise And they said against the Opinion of Barckley that this sum received should not be assets in their hand And Bramston said that it is not like the case where a man promiseth to the father of Iane Gappe in consideration of a marriage to be had betwixt his daughter and him that he would make her a Joynture there as well the daughter as the father may bring the Action And it was adjourned 111. A Parson Libelled in the Ecclesiastical Court for Tithes And after Sentence Rolls moved for a Prohibition upon the Suggestion of a Modus decimandi but it was not granted because too late But Rolls took this difference and said that so had been the Opinion of the Court where the party pleads the Modus and where not for if he plead it there notwithstanding a Sentence Prohibition hath been granted contrary where he doth not plead it But notwithstanding the Court refused to grant a Prohibition 112. The Parishioners of a Parish together with the Parson sued the Churchwardens in the Ecclesiastical Court to render Accompt and recovered against them and Costs taxed Afterwards the Parson released the Costs and notwithstanding the Parishioners sued for the Costs and thereupon a Prohibition was prayed because that the Costs are joyntly assessed and the release of one would bar the others But the Opinion of the whole Court that a Prohibition shall not be granted For the costs recovered there an Action might be sued in the Ecclesiastical Court and therefore although that in our Law the release of one shall bar the others yet the Action being sued there and they having conusance thereof the same is directed according to their Law And therefore it hath been adjudged that if the husband and wise sue in the Ecclesiastical Court for the defamation of the wife and Sentence be given for them and Costs taxed and afterwards the husband releasâ—th the costs in the suit commenced in the Ecclesiastical Court it shall not bar the Wife for the reasons given before Brooke and Booth against Woodward Administrator of John Lower 113. IN Debt upon a Bond the Defendant prayed Oyer of the Condition which was entred in haec venba The Condition of this Obligation is such That if the Obligor did deliver to the Plaintiffs two hundred weight of Hops in consideration of ten pounds already paid and fifty five pound to be paid at the delivery and the Plaintiffs to chuse them out of twenty four Bags of the Obligors own growing and to be delivered at F. at a day certain Provided that if the Plaintiffs should dislike their Bargain that then they should lose their ten pounds and if they liked they should give ten pounds more c. Upon Oyer of which the Defendant pleaded that the Plaintiffs non elegerunt And upon that the Plaintiffs did Demur in Law and shewed for special cause of Demurrer that the Plea was double Withrington for the Plaintiffs that the Plea is double in that the Defendant hath alledged that he was ready and that the Plaintiffs non elegerunt which are both issuable pleas and each of them of it self admitting no request of the part of the Defendant requisite is sufficient in bar of the Action Besides he conceived as this case is that the first act ought to be done by the Defendant for he ought to shew the bags and request the Plaintiffs to make election And he compared it to the case in 44 E. 3. 43. and also to Hawlins case 5 Rep. 22. Farther he conceived that the Defendant ought to have alledged that he had twenty four bags and twenty four bags of his own growing for if he have not them it was impossible for the Plaintiffs to make choice and by consequence the condition broken Twisden contrary That the plea is not double for the alledging himself to be ready was but inducement to the subsequent matter quod non elegerunt And he relied only upon their election and in proof thereof he relied upon the Books 1 H 7. 16. and 24 E. 3. 19. Farther here no notice is requisite not he ought not to aver that he had them for he being bound to deliver them he is estopt to say that he hath them not 19 Eliz. Dyer 314. and 3 Eliz. Dyer As to the shewing of them we ought not to do it for the Plaintiffs ought to do the first Act viz. Request the Defendant to shew thâ— bags for them to make choice of And the whole Court strongly enclined against the Plaintiffs for the reasons before given and they advised them to waive the Demurrer and plead de novo which they did Thorps Case 114. IN an Action upon the Case upon Assumpsit it was agreed by the whole Court That where there is a mutual promise viz. A. promiseth to B. that he will do such a thing and B. promiseth to A. that in consideration thereof that he will do another thing If A. bring an Action against B. and alledge a
breach in non faciendo and saith that he is ready to do the thing which he promised but that the other refused to accept of it Notwithstanding the breach is well laid and the Action well lieth for it was idle and more than the Plaintiff was compelled to do to shew that paratus est to do the thing which he promised So that if there were a breach upon the part of the Defendant it is sufficient and if there was a breach on the Plaintiffs part the Defendant ought to bring his Action for it And the difference was taken by Bramston Where the promise is conditional and where absolute as in our case And agreeing with this difference it was said at the Bar and Bench That it was adjudged 115. Hutton moved to quash certain Presentments because they were taken in a Hundred-Court which is not the Kings Court and therefore coram non Iudice It was said by Justice Iones That a Hundred may have a Leet appendant to it and then they were lawfully taken Barckley and the whole Court answered because it doth not appear to the Court whether there was so or not that the Presentments were void 116. Concerning damage clear It was agreed that it was hard that the Plaintiff should be stopt of his Judgment until he had paid his damages clear For perhaps if the Defendant be insolvant the Plaintiff should pay more for damages clear than he should ever get And therefore the Court was resolved to amend it This damage clear is twelve pence in the pound of the damages given to the party in this Court and two shillings in the Common pleas See the Register where is a Writ for damage clear Harris against Garret 117. IT was agreed by the whole Court that it is no good plea to say That such an one was bound in a Recognisance and not to say per scriptum obligat ' and to conclude that it was secundum formam Statuti doth not help it But in a Verdict it was agreed to be good And according to this difference it was said by the Court That it was adjudged in Goldsmiths case and Fulwoods case 118. It was agreed by the Court that upon a Certiorari to remove an Indictment out of an Inferiour Court that the Defendant shall be bounden in a Recognisance to prosecute with effect viz. to Traverse the Indictment or to quash it for some defect And if he doth not appear an Attachment shall issue out against him Iustice Crooks Case 119. IT was agreed by the Court That although a Bill be preferred in the Starchamber against a Judge for Corruption or any other for any great misdemeanour yet if the Plaintiff will tell the effect of his Bill in a Tavern or any other open place and by that means scandalize the Defendant that the same is punishable in another Court notwithstanding the suit dependant in the Starchamber And so Iones said that it was adjudged in a Bill in the Starchamber against Justice Crooke which was abated because it was brought against him as Sir George Crooke only without addition of his Office and Dignity of Judge Trinit 16º Car ' in the Common Pleas. 120. AN Apothecary brought an Action upon the Case upon a promise for divers Wares and Medicines of such a value and shewed them in certain The Defendant pleaded in Bar that he had paid to the Plaintiff tot tantas denarior ' summas as these Medicines were worth and doth not shew any sum certain And the plea was holden to be no good plea wherefore Judgment was given for the Plaintiff 121. A Contract was made betwixt A. and B. Mercers That A. should sell to B. all his Mercery Wares and take his Shop of him In consideration of which A. promised that he would not set up his Trade in the same Town And adjudged a good Assumpsit in the Kings Bench as Littleton Chief Justice said But if one be bound that he will not use his Trade it is no good Bond. 122. Rolls moved this Case A Writ of Error was brought upon a Judgment given in Yarmouth and the Case was thus A. and B. were bound to stand to the Arbitrament of I. S. concerning a matter which did arise on the part of the wise of B. before coverture I. S. awarded That A. should pay to B. and his wife ten pounds at a place out of the Jurisdiction And thereupon upon an Action brought upon the Bond a Breach was assigned for not payment of the mony at the place And here it was objected That it was Error because it was there assigned for Breach the not payment of the mony at a place out of Jurisdiction and for that cause the Judgment was not well given Secondly because that the Award was That payment should be made to B. and his wiâ—â— which was out of the Submission But notwithstanding Judgment was affirmed by the whole Court. For as to the 〈◊〉 issue could not be taken upon payment or not payment oâ— of the Jurisdiction because it was not Traversable As 〈◊〉 the second the Controversie did arise by reason of the wiâ—e and therefore the Award was within the Submission beiâ—â— made that the payment should be to both 123. It was said by the Court that it was one Kellway Case adjudged in this Court That a Promise made to an Atturny of this Court for Solliciting of a Cause in Chanceâ—â— was good and that it was a good consideration upon whiâ—â— the Atturny might ground his Assumpsit For it was resâ—â—ved That it was a lawful thing for an Atturny to Sollicite 124. The Court would not give way for Amendments Inferiour Courts 125. By Iones and Barckley Justices If there be an insufficient Bar and a good Replication after a Verdict theâ—â— shall be a Repleading Contrary where there is no Verdict Smithson against Simpson 126. A. And B. were bound to stand to and observe suâ—â— Article Agreement Order or Decree as thâ— Kings Council of the Court of Request should make A brought an Action upon the Bond against B. and pleaded that the Kings Councel of the Court of Request made such Order and Decree and that the Defendant did not observe it The Defendant pleaded That the King and his Council did not make the Decree and adjudged by the Court that the Plea was not good 127. Sir Matthew Minkes was Indicted of Manslaughter and found Guilty And it was moved by Holâ—orne of Counsel with Sir Matthew that the Iudictment was insufficient because there was dans c. without adtunc ibid. according to Presidents as also because it was plagam sen contusionem which is incertain as also that the party killed languebat à pred' 15 die usque decimam sextam And he said That there was no time between those two days but it ought to have been That he languished from such an hour till such an hour and that he said were the ancient Presidents And he said That an Indictment that A.
it then a Prohibition shall be granted And note that it was said by Bankes Chief Justice that before the Statute of 1 Eliz. the Ecclesiastical Court might punish any person for not coming to Church pro reformatione morum salute animae 163. Where there are several Modus alledged there several Prohibitions shall be granted but where divers are sued joyntly and they alledge one Modus only there they shall have but one Prohibition by Reeve and Foster Justices the others being absent Pasch. 15º Car in the Kings Bench. Edwards and Rogers Case 164. THe Case was thus Tenant for life the Reversion to an Ideot an Unkle heir apparent of the Ideot levied a Fine and died Tenant for life died the Ideot died the only Question was Whether the Issue of the Unkle who levied the Fine should be barred or not Iones that it should his chief reason was because the Son must make his conveyance by the Father and as to him he is barred As in a Writ of Right he ought of necessity to name his Father and that by way of Title so here But Crooke and Barckley contrary and their reason was because that here the Issue of the Unkle doth not claim in the right line but in the collateral Secondly because the naming of the father here is not by way of Title but by way of pedigree only Note that Serjeant Rolls in the Argument of the Serjeants case which was the very point said that this case was adjudged according to the Opinions of Crooke and Barckley viz. that the fine should not bar the Issue The Serjeants Case aforesaid was Trin. 17 Car. 165. Payne the elder and Payne the younger were bound joyntly and severally in an Obligation to Dennis who afterwards brought Debt upon the Bond against both And after appearance Dennis entred into a Retraxit against Payne the younger and whether this were a discharge of the elder also was the Question And this Term it was argued by Maynard for the Defendant that it was a discharge of Payne the elder also for it doth amount to a Release and it is clear that a release to one shall discharge both Rolls contrary that it goeth only by way of Estoppel and not as a release and therefore shall not bar Barckley Justice that it amounts to a Release and therefore shall discharge both 7 E. 4. Hickmots case in the 7 Rep. the Plaintiff shall not have judgment where he hath no cause of Action And here by his Retraxit he hath confessed that he hath no cause of Action and therefore he shall not have judgment Further a Retraxit is not an Estoppel but a Bar of the Action besides here he hath altered the Deed and it is not joynt as it was before like as where he interlines it or the like there the Deed is altered by his own act and therefore the other shall take advantage of it Crook Justice contrary for it is not a Release but quasi a Release and if the Obligâ—e sueth one and covenanteth with him that he will not further sue him the same is in the nature of a Release and yet the other shall not take advantage of it So in this case 21 H. 6. there ought to be an actual Release of which the other shall take advantage and therefore in this Case because it is but in the nature of an Estoppel the other shall not take advantage of it Sprigge against Rawlenson 166. IN a Writ of Error to reverse a Judgment given in the Common Pleas in an Ejectione firme the Case was R. brought an Ejectione firme against S. and declared of an Ejectment de uno mesuagio uno repositorio And the Jury found for the Plaintiff and assessâ—d damages entire upon which a Writ of Error was brought here and the Error which was largely debated was that Rep. sitâ—rium which was here put for a Ware-house is a word uncertain and of divers significations as appeareth by the Dictionary And therefore an Ejectione firme de uno repositorio is not good and by consequence the damages which are joyntly assessed are ill assessed And in an Ejectione firme seism shall be given by the Sheriff upon a Recovery as in a Precipe quod reddat and therefore the Ejectment ought to be of a thing certain of which the Sheriff may know how to deliver seifin otherwise it is not good Barckley and Crook Justices were that the Judgment should be affirmed and that it was certain enough but Iones and Bramston Chief Justice contrary that it was utterly uncertain For that is Repositorium in which a man reposeth any thing and an Ejectione firme de uno tenemento is not good because there are several â—enements So here because there are several Repositories and the Sheriff cannot tradere possessionem and afterwards Barckley released his Opinion and judgment was given that the Judgment given in the Common Pleas should be reversed Trinit 17º Car ' in the Common Pleas. 167. A Man having a Legacie devised unto him out of a Lease for years which Indenture oâ— Lease was in the hands of a Stranger The Legatee suâ—d the Executors in the Spiritual Court to assent to the Legacie And Evars Serjeant prayed a Prohibition because they order that the Lease should be brought into Court which they ought not to have done being in the hands of a stranger But the Prohibition was denied by the whole Court for they may make an executor assent to a Legacie out of a Lease and therefore may order that although that the Lease be in the hand of a third person that it shall be brought in to execute it For the Order although it be general binds only the Defendant and it was agreed by the Court that assets or not assets is triable by them Juxon against Andrewes and others 168. IN an Ejectione firme the Defendants pleaded not guilty the Jury found them not guilty for part and guilty in tanto unius messuagii in occupatione c. quantum stat super ripam and whether this Verdict were sufficiently certain so as the Court might give judgment upon it and execution thereupon might be had was the question And by Whitfield Serjeant the Verdict is certain enough it hath been adjudged that where the Jury find the defendant guilty of one Acre parcel of a Mannor that it was good so of the moiety of a Mannor which is as uncertain as in this case And it is as certain as if they had said So many feet in length and so many in breadth for if the certainty appeareth upon the view of the Sheriff who is to deliver the possession it sufficeth and Clark Serjeant who was of the same side said that it is a Rule in Law Quod certum est quod certum reddi potest and this may be reduced to certainty upon the view of the Sheriff and therefore it is certain enough Besides it is the finding of the Jury who are lay gents M. 8. Iac. in
â—e conceived That if a man speak such words of another that if they were true would make him liable to a pecuniary or corporal punishment that they would bear an Action and here the Plaintiff was endamaged and therefore without question they will bear an Action Bramston Chief Justice as before also That the words are not Actionable neither of themselves nor for the damage not of themselves for no words which subject a man to a pecuniary Mulct if they were true either at the Common Law or by the Statute will bear an Action For by the same reason to say that a man hath erected a Cottage or to say that a man hath committed a Riot would bear Action 37 Eliz. in the Common Pleas. One said of another That he did assault me and took away my Purse from me and upon Not Guilty pleaded it was found for the Plaintiff and Judgment was stayed because he might take his purse from him and yet be but a Trespasser So as it appeareth that words ought to have a favourable construction to avoid multiplicity of Suits and if these words would bear an Action by the same reason words spoken against every penal Law should bear Action which against the reason given before should be a means to increase Suits And he took it for a rule If the words import scandal of themselves by which damage may accrue then the words will bear action without damage otherwise not and therefore the damage here shall not make the words Actionable which of themselves are not actionable as I conceive they are not Besides by this means the Act of a third person should prejudice me which is against reason as here the Act of the Ordinary by the Citation and damage thereupon accrued which perhaps might be ex officio only for which cause he conceived that Judgment should be stayed but because there were two Judges against one Judgment was given for the Plaintiff Mich. 17º of the King in the Common Pleas. 192. BAine brought an Action upon the Case against for these words viz. That he kept a false Bushel by which he did cheat and cosen the poor he said in his Declaration That he was a Farmor of certain lands and used to sow those lands and to sell the Corn growing on them and thereby per majorem partem used to maintain himself and his family and that those words were spoken to certain persons who used to buy of him and that by reason of those words that he had lost their custom the parties were at issue upon the words and found for the Plaintiff and it was moved by Serjeant Gotbold in arrest of Judgment that the words were not actionable because that the Plaintiff doth not alledge that he kept the false Bushel knowing the same to be a false Bushel for if he did not know it to be a false Bushel he was not punishable and by consequence no Action will lie and compared it to the case Where a man keeps a Dog that useth to worry sheep but he doth not know of it no Action lieth against him for it but yet notwithstanding Bankes chief Justice and Crawley were of Opinion that the words were Actionable for of necessity it ought to be taken that he kept the Bushel knowingly for otherwise it is no cousenage and here being special damage alledged which was the loss of his custom as he had pleaded it the maintenance of his livelihood they hold the words clearly actionable gave Judgment accordingly Note the other Judges were in Parliament 193. Doctor Brownlow brought an Action upon the case for words against 〈◊〉 spoken of him as a Physitian which words were agreed to be Actionable but yet Serjeant Gotbold conceived that although that the words were actionable that the Plaintiff had not well intitled himself to his Action because although that he said that he is in Medicinis Doctor yet because he doth not shew that he was licensâ—d by the Colledge of Physitians in London or that he was a Grâ—dâ—ate of the Universities according to the Statute of 14. H. 8. cap. 5. that therefore the action will not lie see Doctor Bâ—unchams case 8 Rep. 113. â— where he shewed the Statute aâ—orâ—said and pleaded it accordingly that he was a Graduate of the University of Cambridge wherefore he prayed that Judgment might be stayed Bankes Chief Justice and Crawley doubted whether the Act were a general Act or not for if it were a particular Act he ought to have pleaded it otherwise that they could not take notice of it but upon reading of the Statute in Court they agreed that it was a general Act wherefore they gave day to the party to maintain his Plea 194. By Bankes Chief Justice upon an Elegit there needs no Liberate otherwise upon a Statute and note the Elegit doth except Averia Corucae Dye and Olives Case 195. IN an Action of false Imprisonment the Defendant shewed that London hath a Court of Record by prescription and that the same was confirmed by Act of Parliament and that he was one of the Serjeants of the Mace of that Court and that he had a Warrant directed unto him out of that Court to arrest the Plaintiff pro quodam contemptu committed to the Court for not paying twenty shillings to K. B. and that in pursuance of the command of the Court he accordingly did arrest the Plaintiff Maynard that the justification was not good because the Defendant doth not shew what the contempt was nor in what Action so as it might appear to the Court whether they had Jurisdiction or not And if such general Plea should be tolerated every Court would usurp Jurisdiction and every Officer would justifie where the proceeding is Câ—ram non Iudice and void and thereby the Oâ—â—icer liable to false Imprisonment according to the case of the Marshalâ—ee in the 10 Rep. And here the pleading is incertain that the Jury cannot try it and he put the case of the Mayoâ— of Plymouth The Mayor hath Jurisâ—iction in Dâ—bt and Trespass is brought there which is Coram non Iudice But in this Action the parâ—y is imprisoned pro quodam contemptu shall this be a good Justification in a false imprisonment brought against the Officer certainly no. Serjeant Rolls contrary that the Plea was good because that the Defendant hath shewed that the Court was holden secundum consuetudinem and therefore it shall be intended that the contemptâ— was committed in a Case within their Jurisdiction and therefore he cited the 8 Rep. Turners Case to which Maynard replied that that doth not make it good because that issue cannot be taken upon it At another day the Judges gave their Opinions Justice Mallet That the Plea is not good because that it is too general and non constat whether within their Jurisdiction or not and where it was objected that he is a Minister of the Court and ought to obey their commands and therefore it should go hard that he
the Father was seised of the said services by the hands of the said Anthony Cage and Dorothy his wife and Thomas Grange and Thomasine his wife as by the hands of his very Tenants upon which the defendant did demur in Law and shewed for cause of demurrer that the Plaintiff had traversed a thing not traversable and if it were traversable that it wanted form and this Term this Case was debated by all the Judges and it was resolved by them all that the Traverse as it is taken is not well taken Justice Foster that the Traverse taken by the Plaintiff is not well taken at the Common Law the Lord was bound to avow upon a person certain but now by the Statute of 21 H. 8. cap. 19. he may avow upon the Land and this avowry clearly is an avowry upon the Statute for it is infra feodum dominium sua c. and so is the old Entries 565. then the Question here is whether the Plaintiff be privy or a stranger â—or iâ— he he a stranger then clearly at the Common Law he may plead no plea but out of his Fee or a Plea which doth amount to so much as appeareth by the Books 2 H. 6. 1. 17 E. 3. 14 15. 34 E. 3. Avowry 257. and many other Books as you may find them cited in the 9 Rep. 20. in the case of Avowry here it doth not appear but that the Plaintiff is a stranger and therefore whether he be inabled by the Statute of 21 H. 8. to take this traverse or not is the Question and I conceive that he is true it is as it was objected that this Statute was made for the advantage of the Lord but I conceive as it shall enable the Lord to avow upon the Land so it shall enable the Tenant to discharge his possession as if the avowry were upon the very tenant and so is the Institutes 268 b. and so is Brown and Goldsmiths case in Hobarts Rep. 129. adjudged in the point and the Plaintiff here who is a stranger is in the same condition as a stranger was at the Common Law where the Avowry was made upon the Land for a Rent-charge in such case he might have pleaded any discharge although he were a meer stranger and had nothing in the Land so may he now after the Stat. of 21 H. 8. Then admitting that the Plaintiff might take this Traverse by the Statute then the Question is whether the Plaintiff hath taken a sufficient Traverse by the Common Law or not for the Statute saith that the Plaintiff in the Replevin or second deliverance shall have the like Pleas as at Common Law and I conceive that this plea is not a good plea at the Common Law And now I will consider whether if the Plaintiff had been a very Tenant he might have pleaded this plea or not and I conceive that if this traverse had been taken by a very tenant it had not been good I agree the 9 Rep. 35 Bucknels case that Ne unque seisie of the services generally is no good plea but Ne unque scisie of part of the services is a good plea and so is 16 E. 4. 12. 22 H. 63. and the reason that the first Plea is not good is because that thereby no remedy is left to the Lord neither by avowry nor by writ of customs and services And therefore the plea here is not good because it is a traverse of the services generally Besides here the traverse is not good because that the Plaintiff hath traversed the seism and hath not admitted the tenure and it is a rule in Law that no man may traverse the seism of services without admitting a tenure and therewith agreeth 7 E. 4. 28. 20 E. 4. 17. 9 Rep. Bucknells case and then if the very tenant could not have taken this traverse much less a stranger here Further here the tenure was alledged to be by rent and fealty and the avowry was for the fealty and the Plaintiff hath traversed the seism as well of the rent which is not in demand as of the fealty and therefore the traverse is not good But it was objected that seism of rent is seism of fealty and therefore of necessity both ought to be traversed I agree that seism of rent is seism of fealty but it is no actual seism of the fealty in point of payment or to maintain an assise for it as is 44. E. 3. 11. 45 E. 3. 23. and the distress here is for actual seism of fealty Every traverse ought to be adidem as 26 H. 8. 1. 9 Rep. 35. but here the traverse is of the Rent which is not in question therefore is not good in matter of form Wherefore he gave Judgment for the avowant Justice Reeve the first thing here coâ—siderable is whether this be a conusance at the Common Law or upon the Statute and I hold clearly that it is within the Statute and for that see new Entries 597 599 27 H. 8. 20. and it is clear that the Lord hath Election either to avow upon the Statute or at the Common Law and that is warranted by Institutes 268. and 312. 9 Rep. 23. b. 36. a. 136. a. and then admitting that it be an avowry upon the Statute The second point is whether the Plaintiff be inabled by the Statute to take this traverse or not for it is clear that at the Common Law the Plaintiff could not have this Plea for a stranger could not plead any thing but hors dâ—â—son fee or a plea which did amount to as much I agree the Books of Br. Avowry 113. 61. 9 Rep. 36. 27 H. 8. 4. â—0 Br. Avowry 107. Instit. 268. which are against me yet I conceive undâ—r favour that notwithstanding any thing that hath been said that the Plaintiff is not enabled by the Statute to take this traverse and I ground my Opinion upon the Reason at Common Law as also upon the Statâ—â—e the first reason at the Common Law I ground upon the Rule in Law res inter alios actâ— alteri nocere non debet it is not reason that he who is a stranger shall take upon himself to plead to the Title of the Tenure with which he hath nothing to do in prejudice of the very Tenant and this reason is given by the Books of 22 H. 6 39 E. 3. 34. My second reason is grounded upon the maxime in Law which is That in pleading every man ought to plead that which is pertinent for him and his Case And that 's the reason that the Incumbent at the Common Law cannot plead to the right of the Patronage wherein he hath nothing but the Patrou shall plead it as appeareth by the 7 Rep. 26. and many other Books there cited and these are my reasons at the Common Law wherefore the Plaintiff being a stranger cannot plead this Plea Secondly I ground my self upon the purvieu of
help it 12. pl 32. A man brought Trespass for fishing in seperali â—â—sâ—eria sua and declares that the Defendant â—â—â—es ipsius câ—pit and good for that he had a qualified property in them ratione privilegii 48 pl. 77. If a Ship be taken by Letters of Mart and is not brought infra prâ—â—siâ—ia of the King who granted them the property is not altered 110 pl. 118. Quilibet potest renunciare juri pro se introducto AN Orphan may waive the Court of Orphans and sue in Equity for it is a priviledge which the Orphan hath quilibet potest renunciare c. 107. pl. 185. Recital WHere a false Recital shall not avoid a grant 31. pl 66. Grants of the King need not to recite Leases not of Record nor Copyholds 206. pl. 246. Recognizance It is no good plea to say that such a one was bound in a Recognizance and to conclude that it was secundum â—ormam statuti but he ought to say per scriptum obligatorium 76. pl. 117. Records An Order of the Sessions of peace is a Record and therefore the plea of nul tiel Record of Sessions of peace is a good plea. 121. pl. 200. Relation If a man be living at the day of Nisi prius and dies before the day in Bank the writ shall not abate so if a man be living the first day of Parliament and dies before the last yet he may be attainted for that they are but one day by relation 65. pl. 101. Releases Release to a bargainee before inrolment is not good 70. If divers recover costs joyntly in the Ecclesiastical Court and after one of them releases this is no bar to the others in a 〈◊〉 there for their costs so where a baron and feme recover costs there in the right of the wise and the baron releases this shall not bar the wife 73. pl. 112. See Title Prohibition Two men are bound joyntly and severally to a third who sues the bond against both and after appearance enters a Retraxit against one whether this shall amount to a Release so that it shall discharge the other or not quaere 95. pl. 165. Remainder and Reversion The King may grant an office in reversion but not a common person nor a Bishop without Custom 42 43. Remover of Records A. and B. were indicted for a murder B. flies A. brings a Certiorari to remove the Indictment into the Kings Bench whether all the Record be removed or but part quaere 112. pl. 190. Writ of Errour bearing Teste before the plaint entered is naught and the Record is not removed by it otherwise where is bears Teste before Judgement 140. pl. 212. Reparations The inhabitants of a Parish are bound by the Common Law to repair the high-wayes within the Parish except prescription binde any particular persons to it 26. pl. 62. A man is compellable in the Ecclesiastical Court to repair a way which leads to the Church but not a highway 45 pl. 70. Repleader Where there is an insufficient bar and a good Replication after a Verdict there shall be a Repleader contrary where no Verdict 78. 125. Replevin Replevin lies of a Ship 110 pl. 188. Requests A. is bound to B. to deliver to him two hundred weight of Hops and B. to chuse them out of 24 bags c. whether B. is bound to request A. to shew the bags for him to make his election or not quaere 74. pl. 113. Rescous For a Rescous upon mean process no Action lies against the Sheriff otherwise in case of Execution 1. pl 1 Restitution Clerk of a Parish is put out by the Parson without cause no writ of Restitution lies 101. pl. 174. Barrister of one of the Temples was expelled the house whereupon he prayed his writ of Restitution and denied because that there is no body in the Inns of Court to direct unto they being no body corporate 177. pl. 235. Retorn of a Sheriff Sheriff in retorn of a Rescous saith that he was in custodia ballivi itinerantâ—s and that Rescous was made to him the retorn is naught because the Law takes no notice of the Baylie itinerant 92. pl. 153. Revocation The King presents and before institution presents another whether this be a Revocation of the former presentation or not quaere 86. Scire Facias UPon a Judgement in the Kings Bench there ought to be two Scire Faciases one against the principal the other against the Bayle but one only suffices in the Common Pleas and two Nihils retorned amount to a Scire feci 3. pl. 4. A man acknowledgeth a Statute and after grants a Rent the Statute is satisfied the grantee of the Rent may distrain without suingâ—a Scire Facias 124. pl 203. 159. pl 230. 207. pl. 247. Sequestration No Sequestration ought to be granted by a Court of Equity until all the process of contempt are run out the sequestring of things collateral is illegal 81. pl. 130. For sequestring of collateral things a prohibition was granted to the Court of Requests 99. pl. 151. Sewers Divers Exceptions taken to the proceedings of the Commissioners of Sewers upon Certificates of them 123. pl. 202. 191. pl. 241. Resolved upon question and debate that a Certiorari doth lie to remove the proceedings of the Commissioners of Sewers 192. pl. 241 Supersedeas Writ of Errour brought here to reverse a Judgment given in Ireland is a Supersedeas to the Execution 10. pl. 27. A Writ of Error is no Supersedeas of it self without notice 54. pl. 81. Writ of Error is a Supersedeas to the Writ of Enquiry of Damages 88. pl. 142. Tenant at will WHether a bargainee before inrolment or entry shall be a Tenant at will or not quaere 62. pl. 97. 69. 108. Tender The defendant upon an award was to pay to the plaintiff 8 l. or 3 l. costs of suit expended in an action of Trespass betwixt the plaintiff and defendant as should appear by a note under the Attornies hand of the plaintiff c. the plaintiff is not tyed to cause his Attorney to tender the note to the defendant but the defendant ought to seek the Attorney and request it of him 108. pl. 186. 156. pl. 225. Traverse A man pleaded the descent of a Copyhold in see the Defendant to take away the descent pleads that the ancestor surrendred to the use of another absque hoc that the Copyholder died seised the Traverse is naught 21. pl. 48. A man was bound to pay money at such a place in debt brought against him he pleaded that he payed the money at the place this is not traversable 77. pl. 122. Trespass An action of trespass lies upon the Statute of 2 E. 6. against any man that takes the Tythes 21. pl. 49. Trespass for fishing in sâ—perali piscaria of the Plaintiff 48. pl. 77. Trover conversion Trover and conversion lies of a Ship 110. pl 188. Tythes A Vicar cannot have Tythes but by dotation