Woods case in Cook lib. 4. Tanfield chief Baron it is true that the issue should be better if it were general not guiltie of the Trespass aforesaid but yet it is good enough in this case for the special words comprehend as much as the words not guiltie of the practice and agreement aforesaid c. and the word Practizatione comprehends aswel the subsequent Acts of execution as the precedent combination and therefore Tantamounts a general issue and it was good by the Court and as to the action Altham Baron conceived that it lieth although it be for a lawful cause for the Law abhoreth fraud and conspiracy as if two conspire to vex me for my land by suit an action lieth F. N. B. yet it is lawful for every man to sue me without title and he vouched 16. Assise and here it is laid that the Defendants indeavoured to make the Plantiff forfeit his goods which are worth 5000. l. and this is reasonable that it should lie and 9. E. 2. Fitz. discents 52. is our case directly upon the matter and therefore it seemeth to me that it lies Tanfield chief Baron said that 9. E. 2. crosseth this case in part and yet he thought that the action lies to which Snig agreed and it seemed the cases of appeal put by Godfrey did lie well enough without aid of the Statute of W. 2. if there be such a conspiracy Tanfield chief Baron accordingly if it be legally thought without cause yet if without conspiracy the action lieth not for it as it appears in Owen Woods case Cook lib. 4. and in all cases where strangers have nothing to do with the suit brought for the conspiracy and yet combine with the Plantiff in the suit an action upon the case lieth for this vexation and judgement was entred for the Plantiff by the Court. An inquisition for the King was returned here and it was found that Fleet-wood the Kings debtor for his office of receiver for the Court of Wards did purchase a certain Term and interest of and in the rectory of Yeading for divers years then to come and that being so possessed he became indebted to the King and that this term is now in the hands of the Lady Edmonds and by colour of this inquisition the land is extended for the Kings debt Harris Serjeant moved that this inquisition is insufficient to extend the land but good to sell a term and he vouched Palmers case Cook lib. 4. to which the Court inclined but it was adjourned If a Bishop becomes indebted to the King for a subsidie and dieth his successors shall not be charged upon the lands of the Bishoprick but the executors of the predecessor or his heir and if they have nothing the King shall lose it as chief Baron Tanfield said which the Court granted upon the motion of Bridgman for the Bishop of Saint Davids Trallops case A Scire facias issued against Trallop the father and Trallop the son to shew cause wherefore they did not pay to the King 1000. l. for the mean profits of certain lands holden by them from his Majesty for which land judgement was given for him in this Court and the mean rates was found by inquisition which returned that the said mean profits came to 1000. l. upon which inquisition this scire facias issued whereupon the Sheriff returned Trallop the father dead and Trallop the son now appeared and pleaded that he took profits but as a servant to his father and by his commandment and rendred an accompt to his father for the said profits and also the judgement for the said land was given against his father and him for default of sufficient pleading and not for the truth of the fact and he shewed the Statute of the 33 H. 8. cap. 39. which as he pretended aided him for his equitie whereupon the King demurred Hitchcock for Trallop seemed that the Statute did aid him by equity and he moved two things the one that if here be such a debt that the Statutes intends to aid it the other if the Defendant hath shewed sufficient matter of equitie within the intent of the Act and he thought that it is such a debt as the Statute will aid for although that here be au uncertainty of the time of the judgement given for the King that being reduced to a certainty by the inquisition after it shall be within the intent of the Statute for id certum est quod certum reddi potest and the words of the Statute are if any judgement be given for any debt or duty c. and here although that there was no certainty unto how much these mean rates extended at the time of the judgement given yet it is clear that it was a duty at the time of the judgement and then it is within the Statute also he said that the words in the proviso of that Statute explain that the intent of the makers of the Act was so for the words are for any thing for which the partie is chargable and the mean rates are a thing for which he is chargable see Cook lib. 7. fo 20. and the Lord Andersons case there fo 22. as to the point of equitie there seem to be two causes First he shewed that he was but a servant to his father and had given an accompt to him Secondly the judgement was given against him upon a point of mispleading Tanfield chief Baron said that the matter in equitie ought to be sufficiently proved and here is nothing but the allegation of the partie and the demurrer of Mr. Attorney for the King and if this be in Law an admittance of the allegation and so a sufficient proof within the Statute it is to be advised upon and for that point the case is but this a scire facias issueth out of this Court to have Execution of a recognizance which within this Act ought by pretence and allegation of the Defendant to be discharged for matter in equitie and the Defendant pleads his matter of equitie and the King supposing this not to be equity within this Statute demurreth in Law whether that demurrer be a sufficient proofe of the allegation within the Statute or not and it was adjourned Trin. 7. Jac. in the Exchequer Doillie and Joiliffs case again Trin. 7. Jac. in the Exchequer CRessey for the Plantiff said that the Plea in Bar is not good because the Defendant justified by force of a Capias ad satisfaciendum and pleads no return thereof and moved that it is not justifiable without returning of the writ but the Court seemed the plea to be good notwithstanding that but if it were a mean process then it ought to be pleaded to be returned see Cook lib. 5. Hoes case fol. 19. according to this diversitie Tanfield chief Baron thought that the Plantiff shall recover for first the writ of error here is not a writ but a commission and therefore false lattin shall not abate it as it hath been
the profit and comoditie of his Master the Plantiff and it is shewed that he intended to deceive his Master and the Queen also and where a wrong is made to another in my name whereby I am damnified there I shall have an Action and if in this case the Defendant had left the goods in the ship then the Plantiff had suffered no loss and therefore his taking them out of the ship is the cause which occasions the loss to the Plantiff and therefore it is reasonable that he should render us damages and he vouched the writ of deceipt in F. N. B. and divers cases therein put and 21. E. 4. that if a man bring an Action in London and the Defendant to delay my Action brings a writ of priviledge be shall have an Action upon the case and he vouched the like case to be adjudged in the Kings Bench 40. Eliz. between Byron and Sleith upon an Action of the case brought by the Defendant because he sued a scire facias against a Bail in a Court where he ought Bromley Puisne Baron said that the Plantiff shall have judgement First it shall be intended that the Plantiff was beyond the Seas at the time in respect of the Minute of time between his departure and the landing of the goods Secondly he said that it needs not be expressed that the Master had left moneys wherewith to discharge the custome for it shall be intended in this case because the Defendant had taken upon him to meddle according to the appointment of the Plantiff wherefore c. and so he departed to the Parliament Altham second Baron agreed that the Statute for the paying of custome appointeth that if the goods of any man be laid upon the land the custome not paid that then the goods shall be forfeited and therefore here he shall not lose his goods by reason of this Act made by the Defendant so that if the Defendant be a meer stranger to the Plantiff without question an Action of Trespass lies for this taking then in the principal case by reason of this trust an action of the case lies and if a stranger drives my Cattle upon your land whereby they are distrained by you I shall recover against the stranger for this distress by you in an action against him for by reason of this wrongful Act done by him I suffer this loss and he vouched 9. E. 4. fo 4. a case put by Jenney Snig third Baron to the contrary I agree that if a stranger put in my Cattle to the intent to do hurt to me a Trespass lieth but here is an Action upon the case and that lies not because it appears not sufficiently that the Defendant was servant to the Plantiff to Merchandise but generally his servant and therefore an Action of Trespas rather lieth generally for in an Action upon the case he ought to hit the bird in the eye and here it is not shewed that the goods were for the same voyage nor that the Defendant is a Common servant in this imployment also the Declaration is not good because he doth not shew that the Defendant had moneys or means from the Master to pay the custome and he is not compellable to lay out money of his own besides he cannot dispose of the goods until the custome be paid wherefore c. Tanfield chief Baron there are two matters to be considered in the case First if here you charge the Defendant as your special servant or if as a stranger Secondly if as a stranger then if an Action upon the case or a general Action of Trespass lieth and as to the first if in this case you have shewed him to be such a servant as a Bayliff or Steward and he hath misbehaved himself in such a thing which belongs to his charge without any special trust an Action upon the case lieth but if he be taken to be your general servant then he is to do and execute all Acts and lawful commands and against this general servant if his Master command him to do such a thing and he doth it not an action upon the case lieth but yet this is with this diversitie viz. if the Master command him to do such a thing which is in his convenient power or otherwise not and therefore if I command my servant to pay 100. l. at York and give him not money to hire a horse an Action lieth not for the not doing of this command but if I furnish him with ability to do it and then he doth it not an action lieth well against him and in the principal case it is shewed that the Plantiff appointed the Defendant being his servant generally to receive c. and to pay all customes c. then it is examinable if the Plantiff sufficiently inabled this Defendant to do this command and the woâ—ds of the command seem to be all one as if he had commanded the Defendant to receive the Wares paying the custome and therefore the Defendant needs not to receive them if he had not money to pay for the custome and so it is not within the Plantiffs command to receive the Wares and then if he doth receive them not paying for the customes this is another thing then the command anâ— therefore it is no misfeazance as my particular servant but being my general servant he had done another thing then I commanded him whereby I receive some damage and by consequence is in case of a stranger for if my general servant who is not my horse keeper take my horse out of my pasture and ride him this is a thing which he doth not as a servant but as a stranger then as to the second matter the Defendant being as a stranger if an action upon the case or a general action of Trespass lieth for this is as if my general servant take my horse and rides him without my appointment a general action of Trespass lieth but if by reason of his riding my horse die an action upon the case lieth and so it is in the case here the Defendant had laid the goods upon the land by reason whereof they were forfeited it is collourable that an Action upon the case lieth but if a man take my goods and lay them upon the land of A. a Trespass or an Action upon the case lieth against him who took them by the better opinion but it is good to be advised and it was adjourned and at another day Altham Baron said that an Action upon the case or a Trespass generally did lie well enough and he vouched F. N. B. that if a Bailiff arrest one without any warrant I shall have Trespass generally or an Action upon the case at my election and so in the like case 18. E. 4 fo 23. Trespass or Action upon the case lies also by F. N. B. if Executors be outed by the Testators Lessor there they may have an Action upon the case if they will or Trespass generally and in
touching the premisses Also peradventure if he will assign the place this may fall out to be in another County then where the Action was brought for so it may be and yet parcell of the premisses and so he may give us cause to demur Also to say cleerely that the Plaintiff had entred c. is not good for it ought to be that the Plaintif also expelled or amoved the Defendant as appears in the book of Entries Tit. Debt or Lease fo 11. or 12. and fo 175. B. also here the Plea is double to say in one close called Well Close and this is matter of substance whereof we may take advantage notwithstanding this general Demurrer And also he saith it is parcell of the tenements mentioned in the Declaration this may be and yet never parcell of the thing whereof the Action is brought for there are other Writs therein comprehended within the pernosme And as to the objection of Serjeant Dodderidge that here is a discontinuance because the Plea is not continued by the Iudge of Nisi prius into this Court here if seemeth that this needs not notwithstanding that it be a collaterall Plea in this Court in Trin. Term at the Assises but it is that the parties aforesaid do attend in Octab. Mich. and the continuing untill the Assises is but with a Nisi prius c. and by expresse words the the Parties have day to attend to hear judgement and at the Assises to try the issue and this is a sufficient continuance and as to that the Iudges of Nisi prius ought upon this Plea to discharge the Iury to that it seemeth that the relinquishing of the issue joyned and the acceptance of this new Plea is a discharge in Law Also the Iudges of Nisi prius have no power to give day in the Court here to the Parties for the Court here is to appoint the day in the book of the other part 37. H. 6. fo 2. is only that the Iudgs of Nisi prius give to the parties their day viz. the ordinary day and not another day and the cases tit Voucher and tit Journ in Fitz. cited of the other part are where the Plea is to be put in another Court as Durham c. where the parties have no day before and there a day ought to be given but that is apparantly different from our case Nichols Serjeant to the contrary admit that the Action had been brought of the Mannor of D. only and the entry had been alledged in parcell as here it is then it had been good see the Book of Entries tit Debt or Lease 11. or 12. accordingly and by the same reasons it seemeth the Action being brought for the ejectment of three Mannors the entry was pleaded to be in one Close parcell of the Tenements and good for the venue shall come from all as well from one Close as from the other Also here the entry is alledged to be in parcell of the Tenements and not of the premisses and so the venue for the tryall ought to be from the three Towns where the odde Acres lye and not from the Mannor also and by a reasonable intendment it may be conceived that the place where c. lyeth in all the three Towns 36. H. 6. fo 17. the Defendant saith that the place where c. is parcell of the Mannor of B. that he intitled himself unto he needs not shew where the Mannor lyeth and yet it shall be intended in the same County and although that in such case it is said to be shewed in certain by the Book in 6. E. 6. Dyer fo 76. yet this doth not prove that it ought to be of necessity and here by the shewing of the Plaintiff he had confest the matter of fact which is an entry into parcell of the Premisses and by consequence he falsified his Writ for if he confesse that he had entred into any parcell thereof whereof he brought his Action he had falsified his Writ cleerely he vouched 21. H. 6. fo 8. and 6. Eliz. Dyer 226. in a Ejectione firme against Nevell and others it is said that by a Demurrer to such a Plea the Plaintiff had confessed the Entry but otherwise it should be if he had imparled see Bowld and Mullinexes case in Dyer fo 14. for the shewing of a place c. and l. 5. E. 4. fo 138. an Executor pleads fully administred and at the Nisi prius he pleads that the Plaintiff recovered part of the Debt in D. after the last continuance and a good Plea although it be not shewed in what County D. is Also it seemeth that day ought to be given in this Plea or otherwise it is a discontinuance for the day given upon the Roll is to hear judgement upon the verdict and this plea is Collateral wherefore c. and he vouched 10. H. 7. fo 27 and 7. E. 3. fo 338. by Herl where a difference was taken when a day in Bank shall be given and when not and he vouched 4. and 5. Eliz. Dyer 218. where Fitz. Iustice gave day in Bank Tanfield chief Baron true it is that if it be in an Assise which commenteth originally before the Iudge of Assise he may give day Nichols also vouched 33. H. 6. and 11. E. 4. fo 13. Hobert Attorney general the demurrer doth not confess the plea when it is insufficient but if upon the demurrer the plea be adjudged sufficient then the fact is confessed for the demurrer only confesseth the matter of the plea conditionally viz. if it be good in the matter of the case in 6. Eliz. Dyer 226. the Plantiffe conceived that the plea there ought not to be pleaded in an ejectment after the last continuance and did not demur for the form and a demurrer doth not confess the plea good although that the matter is true and the Book in 21. H. 6. doth not prove against me for that was of an actual confession but in 37. H. 6. the issue joyned was if he who prayes to be received may plead the entrie of the demandant after the last continuance and the cause of the demurrer there was only if he could plead that plea or not because it appears not if he had any thing in reversion or no and so it seemeth that we might have demurred specially and this had been no confession and therefore the general demurrer shall not prejudice us for the matter of confession Bromley Puisne Baron it seemeth the plea is not good because a place is not assigned in certain in what Town the entrie is divers Towns being alledged it seemeth that it is no discontinuance for there needs no special day to be given but the day of return of the nisi prius for they cannot give any day being delegate only to a special purpose and it seems to me that the demurrer doth not confess the plea of the Defendant but conditionally viz. if the plea fall out to be good for otherwise
Baron answered that he should have them of right see Bartues case in Dyer but the Lord Treasurer said that he saw no reason to satisfie himself thereof Doillie against Joiliffe DOillie Plantiff against Joiliffe in an Action upon the case for false imprisonment of the Plantiffs wife the case was that Leonard Lovies was formerly Plantiff in an action in the Common Pleas against Julian Goddard a feme sole and in this action the Plantiff and Defendant were at issue and a venire facias was awarded and before the return thereof the said Julian took to husband Doillie now Plantiff and after upon a special verdict found in the suit judgement was given in the Common Pleas for the said Julian against th◠said Leonard upon which judgement Leonard brought error in the Kings Bench and a scire facias was awarded against Julian by the name of Julian Goddard as a feme sole and she appeared by Attorney as a feme sole and this as the Defendant said in his answer was by the consent of her husband now Plantiff and after judgement was given to reverse the judgement in the Common Pleas and the entrie of that judgement as it was pleaded by the Defendant here was quod praedict Leonard Lovies recuperet c. versus praedict Julianam c. and costs and damages were taxed c. upon which judgement the said Lovies sued a Capias ad satisfaciendum against Julian Goddard and by vertue of that writ the Defendant here the Sheriff or Devon took the said Julian being the Plantiffs wife and imprisoned her until the Plantiff paid 10. l. which was the cost taxed by the Kings Bench for her deliverance upon which imprisonment the husband only hath brought his action against the Defendant being Sheriff Davenport of Grayes Inne argued for the Defendant and first he thought that between the parties to the error and the first action in the Common Pleas there is an estoppel and admittance that the said Julian continued a feme sole for the process in all the proceedings ought to be as it was in the Original and he vouched 18. Assise pla 16. by which book it appears that if a man bring an assise for lands in the Countie of O. and the Tenants plead a Common recovery of the same land in the Common Pleas this doth conclude the partie to say that the lands did lie else where c. also if an original be depending and before the first Capias or process awarded the Defendant intermarrieth and after a capias issueth against her as a feme sole this is well awarded lib. 5. E. 4.16 and also 5. E. 3. fo 9. and 10. also he said that such a thing as is done between the plea and not after the judgement is not material to alter the proceedings in that course it was begun for the same partie against whom judgement is given shall error have against him for whom the judgement is given except she had married after the judgement for then he agreed that the writ of error shall be brought by the husband and wife in case judgement had been given against the wife while she was sole 35. H. 6. fo 31. and 12. Assise pla 41. and it also appears by 18. E. 4. fo 3. if Trespas he brought against a married wife as against a feme sole and she appears as a feme sole and judgement is given and execution accordingly this is good until it be reversed by error and the Sheriff in such case never ought to examine if it be evil or nor no more then if Trespas be brought against A. my servant by the name of B. and A. is taken in execution the Master shall not take benefit of this misnaming admitting that A. should punish the Sheriff for it also he vouched one Shotbolts case 10. and 11. Eliz. Dyer and 15. Eliz. Dyer 318. in the Earl of Kents case which prove that the Sheriff is to be excused for taking me by a false name and if the Iudges admit this false name yet this judicial writ ought not to be examined by the Sheriff and it was adjourned Shoftbey against Waller and Bromley SHoftbey brought an action upon the case against Waller and Bromley and declared that the Defendants conspired that the said Bromley should commence a suit against the Plantiff and that the Plantiff was then worth 5000. l. and that he was then dwelling in Middlesex and that the Defendants knowing thereof maliciously and falsely agreed that the said Bromley should lay his action in London and prosecute it until the Plantiff were outlawed in the said suit to the intent that his goods should be forfeited to the King and after in performance of the agreement aforesaid the Plantiff suggested that he was dwelling in London and laid his action here which was prosecuted until the Plantiff here was outlawed to his damage c. Tanfield chief Baron thought that if the suggestion was by Bromley to make the process into a wrong County it seemed that the Action should lie against him only but in regard it is shewed in the Declaration that the said suggestion was made by him in performance of the precedent agreement that the action lieth against both which the Court granted Godfrey in this action moved in arrest of judgement and that for two causes the action lieth not upon the matter here it appears by the 4. Eliz. Dyer 214. that a man may say his action wherein an outlawry lies in London and then by the Statute of 6. H. 8. cap. 4. proclamation shall issue into the Countie where he dwelleth therefore the suing of him in another Countie is no such act wherefore an action should be brought no more then if before the Statute of W. 2. cap. 12. a man had brought an appeal Maliciosè yet no remedy before the said Statute as appears in the 13. H. 7. in Kellawaies case because it was lawful to bring an appeal and so notwithstanding the said Statute no action did lie against him who brought an appeal if it abated 9. H. 5. cap. 1. also the Statute of the 18. H. 6. provideth remedy for false appeals or judgement in another Countie maliciosè c. by action of the case whereby it appeareth that in such case the Common Law allowed no action also the Statute of the 18. H. 6. provideth another remedy then that Statute and therefore no action lies against us no more then in the case aforesaid at the Common Law Secondly here is no issue joyned if the Defendants be guiltie of the execution of this practice but only if they be guiltie of the agreement and this is found for the Plantiff but clearly such agreement without execution giveth no cause of action and the word Practizatione comprehends only the going about and not the executing of this conspiracy and therefore the issue should have been general if the Defendants be guiltie or not and therefore he prayed judgement might be stayed and he cited Owen
adjudged in the Exchequer chamber and in this case the scire facias ad audiendum errores and all the writ and this scire facias in our case ought to have been made against the said Julian as against a married woman and the writ of execution which is the warrant to the Sheriff is not in such words as the judgement in the Kings Bench is upon which it is founded viz. that he should take the aforesaid Julian c. but that he take the said Julian Goddard then the Sheriff shall not say in his defence that all the proceeding in the writ of error was against the person and aided himself by entrie in the roll of the Court viz. quod praedict Julianum capiat c. but he ought to rely only upon the writ and if in this case he would save himself then he should have inquired upon the delivery of the writ unto him by Lovies who was that Julian Goddard and if thereupon Lovies had informed him that it was Julian Doillie then the Sheriff should have an action upon the case against Lovies upon this false information viz. if A. prosecute a replevin to replevy his Cattle and thereupon he cause the Sheriff to deliver unto him the Cattle of B. for this here B. hath his remedy against the Sheriff and the Sheriff against A. for this false information also he said that if a fieri facias cometh to make execution of the goods of B. if the Sheriff take others goods in execution a Trespass lieth and therefore to secure himself he ought to impannel an inquest to finde if they be the goods of B. or not and then as he conceived it is good but the opinion of the Iudges in the Kings Bench in Mich. 5. Jac. in Trespass between Rookwood and Beal was to the contrary for there a Trespass was brought by Rookwood and the Defendant justified the taking and so forth as Sheriff by vertue of a fieri facias as of the goods of Edward Rookwood father of the Plantiff and upon the execution of this writ the Defendant impannelled a Iury who found the goods to be the goods of the said Edward Rookwook for which c. the Plantiff in the replication Traversed that they were his goods absque hoc that the Iury found that they were the goods of Edward Rookwood c. whereby it seemeth that the finding of the Iury in this case is not material and so the Court then conceived therefore quaere the opinion of Tanfield chief Baron in that point and see the 17. E. 2. pl. 373. and 31. E. 3. Assise pla 378. and 7. H. 4. fo 27. Trespass pla 279. what acts a Sheriff may justifie by reason of a commandment and authoritie from the Court which commanded him Snig Baron seemed that the action did lie for the writ of capias ad satisfaciendum maketh no mention that Julian Doillie is the same person against whom judgement was given in the Kings Bench by the name of Julian Goddard and although that the entrie in the Roll is against the said Julian c. yet the writ is directed that he should take Julian Goddard and then the Sheriff had not done according to the writ in the taking of Julian Doillie and he said that if A. binde himself by the name of I. and judgement is given against him by the name of I. without appearing in person and execution is granted against him by the name of I. in this case an action lies against the Sheriff if he take the said A. in execution for it appears not to him that it is the same person but for the other cause it seemeth that the Plantiff shall not have judgement for the Sheriff is no such person who ought to be priviledged here and therefore the Plantiff should have his remedy else where and he said that such a case hath been reversed in the Exehequer Chamber for error for the under-Sheriff is but an Attorney for a partie priviledged that is for the Sheriff but all the Clarks of the Court and the other Barons were against him in that and also all the presidents Altham Baron had never heard it argued before and therefore he respited his opinion till another day at which day he said that the arrest is not justifiable and so for the matter an action well lieth for by him the arrest ought to be in this case with a special recital that whereas judgement was given and so forth as in the 1. and 2. H. 6. if an Abbot hath judgement to recover and after he is deposed a scire facias lieth not against him as Abbot to reverse this judgement and see 10. E. 4. a capias against A. the son of R. c. see the 19. of H. 6. fo 12. Summons against Iohn S. c. see 18. H. 8. fo 1. a replevin was brought in the Countie Palatine against A. widdow and after she married D. and the plaint was removed into the Common Pleas mentioning her marriage c. and so here the scire facias ought to mention all the special matter and thereupon the writ of execution upon the reversal of the judgement ought to be against Iulian Doillie and not being so the Sheriff is punishable c. but it seemed to him that in this action the wife ought to have joyned with her husband for the false imprisonment or at the least if the husband had brought the action alone there ought to have been a special mention of the loss which the husband particularly had sustained as per quod consortium uxoris suae amisit or otherwise clearly it lieth not for the husband alone and he resembled this case to the cases in the 9th of E. 4. fo 51.22 Assise pla 87.46 E. 3. fo 3. where husband and wife ought to joyn in an action or at the least the declaration ought to be special as aforesaid and so are the books of the 20. H. 7. and Kellaway to be intended and for this cause he thought the Plantiff shall not have jugement here Tanfield chief Baron as I conceived said unto him that the writ ought to have been with a special averment but a surmise ought to have been made against Iulian Doillie as she now is for as the writ is the Sheriff may safely return she is not to be found and thereupon c. quaere if he intended the writ of scire facias ad audiendum errores or the writ of execution awarded upon the judgement in the Kings Bench for he did not mention any particularity of the writ but it seemeth that he intended the writ of execution and then the surmise whereof Tanfield spoke ought to be made upon the roll of the judgement given upon the writ of error and Tanfield chief Baron said as to the joyning in action that clearly for a battery made upon the wife the husband and wife ought to joyn in the action as the books are cited before by Baron Altham and so
the Plantiffe shall be outed to take advantage of a bad plea and so upon the whole matter it seems that judgement shall be given in the ejectione firme for the Plantiffe Altham second Baron to the same purpose there needs no special day to be given by the Iudge of nisi prius although that it be upon a Collateral matter or plea for by the record in this Court a day is given to the Iurors conditionally viz. if the Iustices of nisi prius at the Assises do not come c. but to the parties it is given absolutely fee 6. Assises pla 7. and L. 5. E. 4. fo 2 3 and 4. where there are several cases to this purpose see 9. E. 3.21 H. 6. fo 10. if the Defendant make default at nisi prius a new distress shall issue to the same Iurors to be here in Bank and 3. H. 6. fo 8. and 9. if a man appear and plead he shall never take advantage of any discontinuance Also it seemeth that the plea is not good and to say that the word Tenementorum refers only to the odde acres and not to the Mannor it seemeth that it refers to all but if it shall be taken to refer only to the odde Acres yet this is not good and this is proved by the Book in L. 5. E. 4. fo 110. for a plea to the writ ought to be alwayes certain and this case also answereth that which hath been said that the demurrer confesseth the matter against the Plantiffe for I say if you plead a release in Bar of a debt and shew no place where the release was made this demurrer is no confession of the release except that the cause of the demurrer fall out against me wherefore in respect that the plea is not good and is peremptory to the Defendant as other pleas to the writs are for this cause I conceive Iudgement shall be given for the Plantiffe Snig Baron accordingly that the plea is not good for the not shewing of a place certain wherein the entrie was as by the matter of discontinuance it seemeth that the day of nisi prius is all one with the day in Bank and therefore there needs no day to be given and for that the death of any of the parties after the verdict and before the day in Bank shall not stay the judgement the Books which were cited on the other parts are different from our case for there the suit was adjourned into another Court and the Courts in the Country are not as the Courts here and therefore it was necessary that in such cases a day ought to be given for the manner of pleading we ought to give judgement against him who pleads the plea notwithstanding the matter admitted by the Plantiffe wherefore judgement shall be given for the Plantiffe Tanfield chief Baron accordingly the plea whereupon the issue was joyned was for three Mannors and lands in three Towns and entrie is alledged to be in two Closes called c. parcel of the premises in Bar of the Action if the Defendant in liew of not guiltie plead an affirmative plea and at nisi prius he pleads another plea then the entrie ought to be that the Defendant relicta verificatione c. but in our case such an entrie needs not the plea here ought to be more certain then others for two reasons First it is pleaded in abatement of the writ Secondly it is in delay of the Plantiffe and to which no rejoynder can be made as to the plea it seemeth it is not good for by 10. H. 7. fo 16. a quare impedit was brought by an Administrator of a grantee of a next avoidance and shewed that the Bishop of Sarum granted Administration to him the Defendant saith that the intestate had bona notabilia in divers Diocesses and so the Administration void and shewed in what Diocesses the goods were but shewed no place where they were and therefore it was adjudged that the plea was not good because he did not shew a place c. see 2. R. 3. and 5. H. 7. accordingly and this plea shall not be amended by a rejoynder as is 21. H. 7. also to say parcel of the premises this cannot be intended that parcel of three Mannors or of the three Towns in certain and therefore the plea cannot be good because there is no place from whence the venue should come and it is inconvenient that the venue should come from all if the place where c. lies but in one Town for as it appears in Arundels case Cook lib. 6. if a Mannor be alledged to be within a Town the venue shall come from the Town because it is a place more certain as to the general demurrer that the plea aforesaid is lesse sufficient in Law c. in 18. E. 4. it appears that in debt upon an Obligation the Plantiffe doth not shew a place where the Obligation c. and the Defendant confessed the Action yet notwithstanding this fault Iudgement ought to be given against the Defendant but this differeth from our case because here is an express confession and in our case here is not also here needs not to be shewed any special cause of demurrer but advantage may be taken well enough upon the general demurrer but if the demurrer were that the plea amounted to the general issue only there ought to be shewed a special cause or otherwise no advantage to be taken and he cited the agreement of seven Iudges to be at Serjeants Inne in Fleetstreet this Term in a writ of Error in Dickensons case the case intended was between White and Priest parties in an Action upon Trover and conversion and the Record thereof is in the Kings Bench Trin. 7. Jac. Rot. 843. as to the matter in Law touching the discontinuance for want of a doy given by the Iudge of nisi prius it seemeth there is no discontinuance in this case for there needs not to be any day given as our case is yet in some case the Iudge of nisi prius ought to give day but that shall not be a new day but only the day within contained and that but in special cases viz. if the issue be joyned and at the shewing of the evidence there is a demurrer here the Iudge giveth to the party the day within contained as it appears in 10 H. 8. Rot. 835. and Hill 11. H. 8 accordingly in the Common Pleas but Hill 36. Eliz Rot. 448. upon non-suit at the Assises no day given so if the party confess the Action and so if there be a bill of exceptions yet no day shall be given Hill 38. Eliz. Rot. 331. in the Kings Bench but peradventure it will be said that these Authorities do not match with our case because it is upon a material plea but I say it is all one and therefore in case of a release pleaded after the last continuance this is recorded and yet no day given as appears Hill 4. H. 8.
because nothing vested in the Queen nothing can vest in the King as successor for a thing cannot be vested in one as heir or successor which was never vested in the Ancestor and he vouched Bullocks case in 10. Eliz. Dyer 21. Ed. 4. of election also it cannot vest in the King Primarily because he was never partie to the Iudenture of lease and he cited a case to be adjudged accordingly betwixt Founds and 29. Eliz. 11. H. 7. that he who is not partie to the Indenture shall not be primarily bound nor shall primarily take by the same Indenture and it is inconvenient that this should be a good inrolment and where it was said of the other part that a bargain and sale is good enough although it be not inrolled in the life of the parties so that it be inrolled within 6. moneths to that he well agreed for by the bargain and sale an use passeth at the Common Law without help of the Statute and this without inrolment and the Statute of inrolments restraineth it not but that it may pass well enough at this day and so the Statute perfects it so that it be within 6. moneths indifferently and therefore it is good notwithstanding the death of the parties and he concluded with the Book of the 19. Eliz. Dyer fol. and wheras it was said to be resolved contrary in an authoritie not printed he said that he believed the printed Book and vouched also the case cited before in Butlers and Bakers Case Cook lib. 3. to the third point it seemed to him that although the inrolment be good yet that should not avoid the estate by relation for a relation is not good to avoid mean conveyances without an antient right as if the Kings Villein purchase lands the King now hath right and therefore an office found after shall relate to avoid all mean conveyances and he said that relations are not so certain wherefore a man may make a ground for every case hath his particular reason and therefore to some purposes an attornament ought to relate but to other purposes it ought not to relate and therefore an attornament cannot relate to intitle a grantee to rents due between the grant and the attornament and so in this case if the inrolment had been in the life of the Bishop and of the Queen yet it could not have given to her the mean profits between the grant and the inrolment and he vouched a case in Butlers and Bakers case and the 11. H. 7. that a relation shall never be prejudicial to a stranger for his estate lawfully executed and therefore if a feofment be made to a husband and wife and to a third person and after the husband and wife are divorced for a precontract yet they shall take but a Moitie as if they were married also it is a rule that an estate vested cannnot be made Tortious by relation see Butlers and Bakers Case and he vouched a case to be adjudged betwixt Wind gate and Hall in the Kings Bench Mich. 31. 32. Eliz. that if a Statute be acknowledged to a Common person and another Statute to the King by the same Conusor and after the Statute acknowledged to the common person is extended and the Conusee in possession and also the King sues execution of his Statute he shall not avoid the estate lawfully executed in the first Conusee as it was there holden but the Barons said una voce that if such a case should come in question before them they would hold the contrary for the King and for the fourth point viz. if the confirmation were good being made before inrolment of the lease and so upon the matter before any lease in being to which the Counsel of the one part nor of the other were provided to speak Walter said that the confirmation was not good for Littleton saith that a thing or estate which is not in being cannot be confirmed and Tanfield chief Baron said and others also that this was the principal point of the case and the great doubt is of the other part viz. that this is not good and therefore advised them to argue it at another day and Walter said that the confirmation is not good in regard it is not of record nor inrolled and he vouched the 26. of E. 3. fo 20. that the King cannot take notice of any thing without record the next Term upon the first Tuesday it was appointed to be argued again and Doddridge the Kings Serjeant observed foure points First if any inrolment be necessary in the case Secondly admitting that the inrolment be requisite if here be a good inrolment being made after the Kings death Thirdly if the confirmation of the Dean and Chapter be of necessitie to be inrolled Fourthly admit that the confirmation need not to be inrolled and that the lease ought to be inrolled then if this confirmation be good because it was before the inrolment of the lease as to the first he conceived that aswel a Chattel real as a thing personal may vest in the King without Record for it should be inconvenient that Chattels should be inrolled First for the infinitness Secondly for the small value of them in the judgement of Law and he vouched 40. Assises pla 35. of a Legacy devised to the King and 37. H. 6. fo 10. if a Chattel be given to the King there needeth no record and the 28. E. 3. fo 23. the King brings a quare impedit upon a grant of the next presentation without record and yet it was good 21. H. 7. fo 19. an obligation may be granted to the King without record 35. H. 8. Brook prerogative and 33. H. 6. the Baily shall have aid of the King and he vouched also 2. E. 6. Brook prerogative and 35. H. 6. fo 3. Fitz. villinage and Brook prerogative and the 21. H. 7. fo 8. if a man possest of a Term be outlawed this Term is in the King by outlawry without Record to the second point he thought that the inrolment was good after the Queens death for the inrolment ought to relate as it appears by 1. H. 7. fo 28. and this relation disaffirmeth the mean estate and gives also the mean profits and as to the point of relation he vouched Nichols Case Plowden where the entrie of the heir once lawful was made unlawful by relation and he vouched also 14. H. 8. fo 18. in the end of Wheelers Case and by the 4. H. 7. fo 10. a man seised of land is attainted of Treason the King grants this land to A. the person attainted commits a Trespass and is restored by Parliament the Patentee shall never have an action of Trespass because this restitution takes away the cause of action and to prove that the inrolment may be well enough after the Queens death he said that the said case put to be resolved in the 19th of Eliz. Dyer fo 355. concerning the Duke of Somerset was after adjudged contrary to
therefore he had done well to shew the special matter as he had done and not to confess it as it is in the in formation nor to traverse the said demise because it is matter in Law 5. H. 7. and Vernons case Cook lib. 4. he needs not traverse absque hoc that the lease was made for and in satisfaction of Dower and to shew the special matter viz. that it was a conditional lease and so leave it to the Iudges for the matter in Law if it be a joynture or not also it seemeth to me that it is sufficient for the Bar to say that the Commission was not returned by Hammond and Porter for that is a Traverse to the information and it cannot be intended to be returned by any other of the Commissioners in regard that those two only did execute it for the taking of the acknowledgement as the information mentions but he said nothing in this case if this Commission may be returned by those Commissioners who took not the acknowledgement also by him and Snig Bromley absent sigillo suo ratificat is good enough without saying sigillo suo sigillat contrary to Baron Altham also the Defendants have shewed the time in their Bar when the first lease was intolled so that it is certain but it seems to me that admit the matter in Law was for the King yet upon this information we cannot give judgement for him for the information is for the mean profits incurred before the inrolment and this is clear that the King cannot have them without doubt admit that the Bishop had been living yet the inrolment cannot relate as to the mean profits although it should be admitted to be good to make the lease good at the time of the inrolment and so upon all the matter he agreed that judgement ought to be given against the King and so it was Tanfield chief Baron said that if a man take a lease of my land from the King by Patent rendring rent this is not an Indenture to compel him to pay the rent for the King had nothing to grant whereupon a rent might be reserved to him Altham Baron said that the King shall have the rent here as by estoppel between common persons but it was adjourned It was said by Tanfield chief Baron that a Collector of a fifteenth may levie all the Tax within one Township upon the goods of one inhabitant only if he will and that inhabitant shall have aid of the Court to make each other inhabitant to be contributory which was granted by the Court Bromley being absent Tanfield chief Baron said that if a man had judgement against A. upon an Obligation who dieth and another Obligee of the said A. assignes his Obligation to the King the Executors of A. satisfie the said judgement it is good against the King in respect the debt now due to the King was not upon Record before the death of the Testator which was granted by the Court. Levison against Kirk THis Term the case between Levison and Kirk which was opened the last Term was adjudged and the case was that Levison brought an Action upon the case in the office of Pleas against Kirk and declared that whereas the Plantiff was a Merchant and 13. Martii 40. Eliz. intended to go beyond the Seas to M. to Merchandise and the same day and year at D. he acquainted the Defendant with his determination and then in the same place appointed and trusted the Defendant being his servant to receive for him all such Merchandise and goods which should be sent over or carried or conveyed by the Plantiff in the same voyage and to pay for the custome of them and to dispose of them and convert them for the profit and commoditie of the said Plantiff and thereupon conveyed divers goods to the Defendant and that the same day and year the Plantiff took shipping and sailed to M. and that within five dayes following 20. pieces of Velvet were brought into the Port of S. consigned by the Plantiff to the Defendant in the absence of the Plantiff and that the Defendant on purpose to deceive the Queen of her custome and to make the Plantiff to allow custome unto him did take of the said goods so consigned and land them on the land at S. aforesaid the custome not paid whereby the Plantiff lost his goods as forfeited for default of payment of custome to the damage of c. and upon not guiltie pleaded a venire facias was awarded to the the Sheriff that he should cause to come 12. from the Venue of D. and those c. viz. from the place where the trust was reposed and from the place where the trust was broken and thereupon the Defendant was found guiltie and damages 50. l. and in Pasch Chibborn Serjeant moved in arrest of judgement that the Action did not lie for every fault against the servant although it be such a misfeazance for which the Plantiff receives prejudice and therefore if you will have an Action in this case you ought to shew a special trust reposed and a breach of that trust by the servent or otherwise an Action upon the case lieth not and that is not observed here for although that you shew that the Defendant being your servant was appointed and trusted for the goods to be consigned in the said voyage yet you did not shew that these goods were not consigned in the said voyage neither do you shew that he was such a servant generally used to be imployed in trading for your goods neither do you shew that you have allowed or delivered moneys to him to make him able to pay the custome and to say that by the sale of the goods themselves he may pay it himself and you appointed him to dispose them at his pleasure yet hereby you do not inable him thereunto for he ought to pay the custome before he sell them and them peradventure he had not money to discharge the custome wherefore there is no cause of your Action as this Declaration is and therefore he prayed that judgement may be stayed George Crook prayed that judgement may be given for although it bâ— not expresly shewed that the Plantiff continued beyond the Seas in the said voyage at the time of the coming of the goods to the said Port yet the intendment ought to be so of necessitie in regard it is shewed that within five dayes after his departure and in his absence these goods were consigned c. and his return cannot be intended in so smal a time and he vouched 21. E. 4. fo 13. also it is not material in the case to shew that the Master hath left where withal to pay the custome for here the Action is brought in respect of deceipt and fraud in the Defendant and this is inferred divers wayes the first that the Defendant ought to receive my goods Secondly that he should pay the custome Thirdly that he should dispose of them at his pleasure for
be construed to be conditionall because the consideration intended is executed viz. that he hath assumed c. Dyer 76. and 44. Eliz. in the Kings Bench Sir William Lees case in consideration that he had assumed to make a release another promised to pay him 10 l. an action may be brought for the 10 l. without averment of making the release because the consideration is a thing executed viz. the Assumpsit c. but if Executory then the Grant is conditionall as 9. E. 4.19 15. E. 4.9 If an Annuity be granted pro concilio impendendo this makes the Grant conditionall and void for not giving counsell but otherwise it is if it be pro consilio impenso 4. But admitting that here it was conditionall yet the Queen cannot avoid it without Office and so the Plaintiff had no title to enter for an avoidance which was before his grant and so the lease is in esse at the time of the Grant made to the Plaintiff your Grant is without recitall thereof and therefore is void see Knights case Coo. lib. 5. If there be a condition to re-enter for non-payment an Office ought to be found but if it be upon condition to cease for non-payment then it is void to the King without Office as it was agreed in this Court in Sir Moyle Finches case and he vouched Cook lib. 1. Altonwoods case to prove that the lease ought to be recited in the Grant of the reversion or future interest and here although there be a non abstante in your Patent this doth not aid you because it is not found in the speciall Verdict Also for another cause the Plaintif shall not have judgement here for it is not found that the Queen died seised neither that it came to the King that now is and so it cannot come to the Plaintiff and although a fee-simple shall be intended to continue in the same person yet without shewing it shall not be intended to come to the heir 7. H. 7. 3. and so he prayed judgement for the Defendant Tanfield chief Baron said that the case here is by Verdict therefore we ought to intend such circumstances if they be not expressed to the contrary also the seisin of the Queen is shewed to be in Jure Coronae and therefore the intendment that it may be devised by disseisin or abatement between common persons holdeth not here Carew against Braughton Mich. 7. Jacobi in the Exchequer THomas Carew Exequetor of William Carew brought debt against Morgan Broughton Sherif of the County of Cardigan and the case was that John Wyner was in execution upon a Iudgement for William Carew and that after William Carew dyed and that John Wyner brought an Audita querela against Carew Executor of William Carew and upon that Writ he had a venire facias against Thomas Carew and thereupon as the Stat. apoints of 11. H. 6. cap. 10. he put in baile by recogni-zance in the Chancery to the said Thomas Carew and one of the parties for his baile was Thomas Wyner and after upon the Audita Quaerela Iudgment was given against the said Wyner and a Scire facias awarded issued against Thomas Wyner as Bail and after the said Thomas Winer was in execution upon this Recognizance as Bail to the said Thomas Carew and the said Morgan Broughton being Sheriff suffered him to escape upon which escape Thomas Carew brought debt against the Sherif in the debet and detinet and had a verdict to recover and now in arrest of judgement it was moved by Jefferies that the action ought to be brought in the detinet only and he said that if an Action be brought as Executor this alwaies ought to be in the detinet only and he vouched Hitchcock and Browns case remembred at the end of Hargraves case lib. 5. where the case was that one Anthony Brown Executor brought debt against one Lister and that Lister being in execution the wife entermarried the said Lister escaped the Husband and Wife brought debt for his escape in the debet and detinet and there it was resolved that it ought to be in the detinet only and so here and see the custome to plead mentions that the Recognizance acknowledged was to the use of the Executor and not to the use of Thomas Carew by his name but Wild of the Inner Temple prayed judgement and said that the Action is well brought in the debet and detinet and he vouched 9. H. 6. and 20. H. 6. if an Executor recover and after upon the Iudgement he brings debt it ought to be in the detinet but if an Executor sels goods of the Testator and takes an Obligation in his name as Executor yet here the Action upon this Obligation ought to be in the debet and detinet because it is upon his own contract and 1. E. 3. Brooke Executor pla 287. although it appears there and so by 9. H. 6. fo 11. That is good either way and 41. E. 3. Brook pla 545. that if a debt be brought against the Executor upon a contract made by them it ought to be in the debet and detinet or otherwise the Writ shall abate and as 9. H. 6. is at his pleasure to name him Executor or not and therefore c. Snig the second Baron if the Executors bring an Action of goods carried away in the life of the Testator c. and hath judgement to recover 20 l. and dammages for them and upon this judgement he brings debt this shall be in the detinet Altham 3. Baron if an Executor sells the goods of the Testator and an Obligation is made to him for the money for which they were sold without doubt this action shall be in the debet and detinet for the action concerns him in his person and so if he with his own money redeem goods which was pawned by the Testator c. and the Stat. of the 11. H. 6. cap. 10. is that upon an Audita Querela the party who sueth it shall put in Bond to the party c. and the Testator is not party at the time of this Audita Querela but Thomas Crew who is the Executor and it is not as a Proces of execution pursuant c. but is a new thing and so for his opinion suddenly it is good in the debet and detinet Bromley the 4. Baron seemed cleer that if a Bond be made to an Executor upon a simple Contract made with him for the goods of Testator there the action ought to be brought in the debet and detinet but this account is conceived upon a dependency of a duty to the Testator and therefore it ought to be detinet only Tanfield chief Baron the case is doubtfull and therefore it is good to be advised but for this time it seemeth there is a diversity where the Recognizance is Legally forced and where it is voluntary for in our case the Law compels this Recognizance upon the suite which the
convicted of the intrusion and Moil said that he ought to shew matter sufficient whereupon he upon the intrusion aforesaid ought to be convicted so that a thing is demanded of us to give out judgement in which is not in question before us and therefore no judgement at all may be given here wherefore it is not needful for us to dispute other matters in the case and as to the questions in Law which were argued by George Crook and others Tanfield chief Baron nor Altham spoke not at all because they might come before them again to be adjudged upon a better office but Bromley and Snig Barons spoke to the matters in Law and their opinions were as follow and upon the plea of Moil the case was this that the Tenant pleaded protestando that the Priory of Bister was not founded by the name of the Priory of Saint Mary and Saint Egbert of Bister as the inquisition supposeth for plea he saith that one Thomas Banbury Prior of the Church of Saint Mary and Saint Egbert of Bister infeoffed him of the Mannor of Caversfield by the name of the Moity of his Mannor of Caversfield as also by the name of all his lands and Tenements in Caversfield and that the said feofment was made by the name of the Prior of Saint Egbert of Bister and that it was known aswel by the name of Saint Egbert as Saint Mary and that the Mannor of Caversfield was well known by the name of the Moity of the Mannor of Caversfield and that the Prior had no other land in Caversfield and shewed also that there is another in Caversfield which is called Langstons Mannor the which heretofore was the Priors and allotted as a Moitie of a Mannor in the same Mannor of Caversfields and those and other circumstances he used in his plea to the intent to shew that all the land of the Prior shall pass to him and he shewed that this Mannor sold to him was known by the name of Langstons Mannor Bromley Baron the Corporation is mis-named in the Grant because it is a thing material viz. the omission of the word Saint Mary for the name of assent in a body politick is as the name of Baptisme in a body natural and the name of Baptisme cannot be missnamed as it appears 3. H. 6. and 1. H. 7 if Iohn by the name of Thomas make an Obligation this shall not binde him if he doth not admit it and therefore it shall not conclude the King see the 11. Eliz. Dyer 279. where in some cases the estate shall pass by livery and seisin by what name soever it be made but a Corporation cannot pass an estate from them but by Charter and it may be conceived that the founder intended two things the one was Religion or more properly superstition the other was that it may remain to posterity as a Monument of the piety of his Ancestors and then if the name should be altered the remembrance would also decay and therefore what name soever is first imposed ought alwayes to be observed and that the omission of Saint is material and he vouched Eaton Colledge case 3. and 4. Ma. Dyer and 35. H. 6.31 the case of the foundation of Saint Peter and Paul c. but he agreed the case in 11. Eliz. Dyer 278. that omission of the word undivided is not prejudicial because no material variance Secondly it seemed that all the Priors Mannor of Caversfied passed by this grant for by 20. H. 6. and 22. H. 6. it appears that a feofment of 20. Acres by the name of a Mannor is good and 6. and 7. E. 6. Dyer if a man grant his Mannor in S. containing 10. Acres yet if it contain 20. Acres it is good and the word Omnia greatly inforceth the case as it seemeth wherefore c. Snig Baron said that the mis-naming is a material variance which avoids the grant also it seemeth that Omnia alia shall not be intended to refer to more then was granted by the other words except there were other lands besides the Mannor and therefore he thought that only a Moity of the Priors Mannor passed super totam materiam Sir Henry Browns case before HObert Attorney general it seems to me that the plea is not good for divers causes see the beginning before fol. he said that first every issuable plea ought to express a place but if the issue be triable by the Record or witnesses a place is not necessary 11. H. 7. fo 1. if there be no place there is no plea and therefore if it be beyond the Sea it is no plea. Secondly in our case there is no place alledged from whence the venue should come to trie the entrie in this case to be of all the premises for it is to trie the entrie but in one particular parcel but I agree as it hath been said of the other part if the entry had been alledged to be in the premises then the venue shall come from all the premises for here the plea of the entrie pleaded by the Defendant is double and yet it is good because of necessitie it cannot be otherwise intended in this case but I cannot plead in this case that I have not entred into two Closes parcel of the premises for that is Negative preignans as is in 9. H. 6. fo 44. in debt upon a bond where the Defendant was bound to require a house the Defendant said that A. by the command of the Plantiffe disturbed him the Plantiffe shall not be admitted to replie that A. did not disturb him by his command but by protestation that A. did not disturb him for plea that the Plantiffe did not command him c. 6. H. 6. fo 9. in a writ of entrie the Tenant pleads that the demandant confirmed after the last continuance the demandant shall not say that he did not confirm after the last continuance 5. E. 3. fo 1. in a per quae servitia of the grant to the husband and wife the Defendant said that the wife released while she was sole the other cannot replie that she did not release when she was sole but ought to deny the deed and so in our case if you will say by protestation that the place where the entrie is supposed is not parcel c. for plea that you have not entred after the last continuance then the issue ought to be joyned if we please or not and this shall not have any reference to the premises but only to the two Closes and then the venue shall come from the two Closes wherefore c. also by this plea so uncertain the Plantiffe is prejudiced for admit that in this case Hawkins the Defendant had re-entred before the day of nisi prius this had made our writ good again as appears by 26. H. 8. fo 10. and 36. H 6. and 8. H. 7. and then if here the Defendant will say that the Plaintiff had entred before the issue now it shall not be
was in a Formedon in remainder and it was moved now by Serjeant Harris if the partie against whom it was given may sue in the Exchequer Chamber by Bill or petition to the King in the nature of a writ of false judgement for the Reversal of that judgement Tanfield seemed that it is proper so to do for by 13. Rich. 2. if a false judgement be given in a base Court the partie grieved ought first to sue to the Lord of the Mannor by petition to reverse this judgement and here the King being Lord of the Mannor it is very proper to sue here in the Exchequer Chamber by petition for in regard that it concerneth the Kings Mannor the suit ought not to be in the Chancery as in case a Common person were Lord and for that very cause it was dismissed out of the Chancery as Serjeant Harris said and Tanfield said that he was of Councel in Pettishals case in the time of the Lord Bromley where it was debated at large if such a judgement ought to be reversed by petition in the Chancery in case where a Common person was Lord and at last it was decreed that it should be as in that case of Patshal and for the same reason here the King being Lord and therefore day was given till the next Term to shew their errours and Serjeant Harris said that the errors are in effect no others then were in the case 9. Eliz. Dyer fo 262. and in Godmanchesters case and it was adjourned Scot and his wife against Hilliar SCot and his wife Plantiffs against Hilliar for these words spoken of the wife viz. she would have cut her husbands throat and did attempt to do it Hutton Serjeant in arrest of judgement said that these words are not actionable for the will or attempt is not punishable by our Lawe and he vouched Cockains case Cook lib. 4. cited in Eaten and Allens case but by the Court an Action lies for the attempt is a cause for which the husband may be divorced if it were true and it is a very great slander and Baron Snig said that in the same Term a judgement was given in the Kings Bench and was affirmed in the Exchequer Chamber upon a writ of error for these words He lay in the high way to rob me and therefore let judgement be entred for the Plan̄tiffe but it was adjudged in the principal case that for the words she would have cut her husbands throat no Action would lie Gooches Case A Coppyholder surrenders into the hands of the Customary Tenants to the use of Anne his Wife and after before any Court the said Coppyholder surrenders the Land into the hands of other Customary Tenants to the use of the said Anne for her life the remainder to Percie in Fee upon condition that he in remainder his Heirs should pay 20. s. per annum at Michaelmas for ever the first payment to commence immediacely after the death of the said Anne viz. at the next feast of St. Michael and this to be paid in the Church Porch or D. to the Church Wardens of D. in the presence of four discreet Parishioners or otherwise that a stranger should re-enter and at the next Court both these surrenders were present and the Steward admitted the said A. according to the second surrender and she dyed and now upon pretence that the rent of 20. s. was not paid by the Heirs of him in remainder the Heir of Gooch who made the surrender had entred and thereupon an Action was brought and upon the evidence the Jury to the County of Bedford now at the Bar These matters were moved by Serjeant Nichols That a surrender into the hands of Customary Tenants cannot be Countermanded and therefore the second surrender void and the admittance shall work to such uses as the first surrender was made as in Anne Westwicks Case Cook Lib. 4. And to prove that a surrender into the hands of Customary Tenants is not countermandable he said that it is not countermandable by death nor surrender Cooke lib. 4. in his Coppyhold Cases That a presentment in the Court may be after the death of the surrenderer and the admittance thereupon is good and he compared it to the Case of the delivery of a Deed as an Escroll which may be delivered as his Deed after the death of the Maker as it is in Jennings and Braggs case Cook lib. 3. which was not denyed by the Court Serjeant Dodderidge said that when a surrender is made upon condition that he shall pay a summe of money to a stranger these words make an estate conditionall and give power implyedly to the Heirs of the party who did surrender to re-enter for non-payment and the words which give power to a stranger to re-enter are meerely void neverthelesse the precedent words shall stand and make the estate conditionall Tanfield Littleton saies that such a re-entry is void for a re-entry cannot be limited to a Stranger Nichols Serjeant said that if a surrender be made that he shall pay so much money that this makes the estate conditionall and gives a re-entry to the Heirs of him who did surrender But when it goes further and doth not leave the condition to be carried by the Law in such case all the words should be void because it cannot be according to the intent as in the case of a reservation of rent the Law will carry it to the Reversion but if it be particularly reserved then it will go according to the reservation or otherwise will be void and so here Tanfield Admit that here was a conditionall estate by vertue of the Surrender last made and this condition is also to be performed to a stranger which generally ought to be taken strictly yet as it is here he who will take advantage thereof ought to prove a voluntary neglect in the party in the not performance of the Condition and inasmuch as there is no certain time appointed when the payment of this Annuall rent should be made but generally at Michaelmas next after the death of the said Anne thereby in this case the Chuch-wardens ought to notifie the death of the said Anne before the first day of payment by reasonable space or otherwise the condition is not broken and also it is appointed here to be paid in the presence of four discreet Parishioners by the party who should perform the condition yet by intendment he hath no notice who are discreet or who are not especially he being an Infant as in our case he is and therefore although the condition is to be performed to a stranger which generally ought to be performed strictly according to 12. E. 3. Yet this is to be intended only in such cases where the party had certain notice of all circumstances requisite for payment thereof and therefore he directed the Iury that for want of knowledge of such circumstances they should give a Verdict that the condition was not broken And Dodderidge