of five Steers and that certain Malefactors unknown to him did steal them from him at Broughton in the County of Bucks and that the 22 of Novemb. 13 Jacob. the Defendant pursued them to London and there did search for the Steers and found them in the possession of the Plaintiff and did require the Plaintiff to shew them unto him and how they came into his possession and because that the Plaintiff did deny to deliver them unto him and did refuse to permit him to see them and to shew how he came by them and that the Plaintiff gave him such incertain answers that the Defendant did suspect the Plaintiff had committed the Felony and the Defendant for better examination of the promisses and restitution of the said Cattel did inform the said Sir Thomas Bennet of the premisses and did procure a Warrant from him to bring the Plaintiff before him to be examined concerning the said Cattel whereupon the Plaintiff was brought before him and examined and because he could not make it appear how he came by them and for that he gave very uncertain answers and for that the said Sir Thomas did suspect him he did therefore binde him in a Recognizance of 50 l. to appear at the next Goal delivery and did binde the Defendant in a Recognizance of 20 l. to prosecute whereupon the 29 Novemb. 13 Jacob. the Defendant did exhibit a Bill of Indictment and did give evidence to the Iury that the Cattel were stoln from him and that he found them in the Plaintiffs possession and that he denyed the Defendant the view of them or to shew how they came to his hands whereupon the Iury found the Bill and thereupon the Plaintiff did appear at the next Goal-delivery the first Octob. 13 Jacob. and was there imprisoned until he was legally acquited which is the same imprisonment for Felony and procurement to be indicted and detainment in prison whereof the Plaintiff complains The Plaintiff confessed the Felony Replication but says that the 23 Octob. 13 Jacob. Thomas Burley was possessed of the said five Steers at Barnet in the County of Hertford and did then and there sell the said Cattel in open Market to the Plaintiff for 17 l. being a Butcher and that the said sale was entered in the Toll-book and the Toll payd wherefore the Plaintiff was possest of them and did drive them to his house in London the 24 Octob. 13 Jacob. and that the 21 Novemb. 13 Jac. he killed four of the said Cattel and then the said 22 of November the Defendant came to his house to search for the said Cattel and the Plaintiff did acknowledg to him that he had the said Cattel and that he had killed four of them and that he had bought them as aforesaid and did then also shew unto him the Steer that was then living and that the Defendant had sufficient notice that the Plaintiff had bought the Cattel in the Market and that although the Defendant did know that the Plaintiff had bought them and was not guilty of the Felony yet the Defendant out of malice and against his knowledg did charge the Plaintiff with Felony c. as he hath declared absque hoc that the Plaintiff did refuse to permit the Defendant habere visum of the said five Steers or to shew how he came by them Whereupon the Defendant demurred in Law Demur and shewed that the matter of Inducement to the Travers was insufficient and that the Travers was insufficient and the matter not traversable And I conceive that the Plaintiff ought to have Iudgment For in the 7 Ed. 4.20 In a false Imprisonment The Defendant said that before the imprisonment one B was killed by certain persons in whose company the Plaintiff was and the report of the County was that the Plaintiff was party to the Felony whereupon he arrested the Plaintiff for suspicion and did commit him to the Sheriff And Bryan did Travers the Indictment without that that the Plaintiff was in their company and without that that the report was so c. And Nidkam said there that issue could not be taken upon the report but upon the matter in fact For if men say in the Country that I am a Thief that is no cause to arrest me but matter in fact ought to be shewed which is Traversable whereupon issue was taken upon the first matter onely and in the ninth of Ed. 4. it is holden that a man ought to shew some matter in fact to prove that the Plaintiff is suspected And 11 Ed. 4. 46. in a false Imprisonment The Defendant who justifies upon a false imprisonment for Felony ought to shew some matter in fact to induce his suspicion or that his goods were in his possession of which the Country may take notice And in the 17 Ed. 4. 5. in a false imprisonment the Defendant justified because that A. and B. did rob another and did go to the house of the Plaintiff whereupon the Constable did suspect him and did require the Defendant to assist him in arresting him c. and holden there that they ought to surmise some cause of suspicion or otherwise the plea was not good 7 H. 35. Suspicion cannot be tryed because it is but the imagination of a man which lies in his own conceit 5 H. 7. 4. In a false Imprisonment the Defendant justified because that A. was poysoned and the common voyce and fame was that it was done by the Plaintiff whereupon he was taken and there it was argued if this were sufficient cause some said that he ought to shew some special cause but it was agreed in conclusion that it was but all agreeo that suspicion only is not enough without alledging cause of suspicion and says 2 H. 7. 16. and 7 Elizab. Dyer 236. In an action on the Case for calling one Thief the Defendant justified for common voyce and fame and adjudged insufficient but this with suspicion had been sufficient cause to arrest one and carry him to the Goal And Michaelm 38 and 39 Elizab. In the Common-Pleas in an Action on the Case by Damport against Symson for giving a false testimony adjudged that the intent of the swearers cannot be put in issue or tryed 2 H. 4. 12. B. 46 Ed. 3. 4. 2 H. 7. 3. In a Trespass the Defendant justified that he was robbed in the County of B. and did suspect the Plaintiff in the County of Stafford The Plaintiff pleaded De son tort demesne c. and it was there agreed that all the case was in issue And Tow said that it should be tryed by both Counties if they could joyn but he doubted if they could joyn but in the 16 of H. 7. 3. B. this case is reported to be adjudged that if the Counties could not joyn it was no plea because it ought to be tryed by both And so de son tort demesne shall be full of multiplicity and therefore it is no plea as in Crogates Case
defrauded for if no information be for the conversion within one year after or if the Convertor pay the penalty of 20 s. for the converting he may let it out to another And by pretence of the Defendants Councel he shall not be subject to penalty for the continuance But the Court agreed that he who made the conversion should be punished and so should every other occupyer of the Land who does not keep the Land in tillage Rot. 386. Michaelm 12 Jacob. Perryn against Audrey Barry IN a Writ of Error to reverse a Iudgment given in the Kings Bench for the said Audrey against the said Perryn in Debt upon a Bond of 100 l. made the 28 of April 5 Jacob. In which Action the said Perryn demanded Oyer of the said Bond and of the Condition which was That if the Defendant Iohn Perryn his Executors and Administrators should perform the Award of Thomas Clyff Roger Glover Robert Goodwin and Thomas Piborn Arbitrators as well for the said Perryn as the said Audrey Barry elected to Arbitrate of for and upon all and all manner of Actions cause and causes of Actions Suits Trespasses Debts Duties c. and all other demands whatsoever which between the said parties at any time until the date of the Obligation have been had moved or now depending so that the same Award c. of the said Arbitrators or any three of them of the premisses be made and given up in writing indented under their hands and seals on or before the last of May next that then the Obligation shall be voyd And the Defendant did plead that the said Arbitrators did not make any Award The Plaintiff did reply that the said Roger Glover Robert Goodwin and Thomas Piborn three of the said Arbitrators the 30 of May. fifth of King James did make their Award by writing indented That the Defendant should pay to the Plaintiff 57 l. viz. upon or before the 16 of June next 10 l. and the 29 of September next 17 l. and the 25 of Novemb. next 20 l. and the 25 of March next 10 l. And whereas the Defendant and Stephen Perryn were bound to the Plaintiff in 12 l. upon condition to pay 6 l. at certain days that the said Obligation should be to the Plaintiff in force as then it was and that she should have such benefit thereby as she might have had before and that the Plaintiff should acquit and save indemnified the Defendant from all Debts Duties and mony for which the Defendant with the Plaintiff was indebted or bound to Dingley Numan Clark Cater or any of them And that all Actions depending between the parties in any of the Kings Courts and all other Actions and causes of Action for any matter between them except the matters contained in the Arbitrement and the Obligation to perform the Award should cease c. And that if any controversie or doubt should happen between the parties for or about any word sentence or thing in the Arbitrement or of or touching the Award or any thing contained therein that the parties and their Executors shall perform such explanation and construction thereof as the said three Arbitrators should make in writing under their hands concerning the same And that the Plaintiff shall pay to George Write for drawing and ingrossing the said Arbitrement 6 s. 8 d. which Agreement the said three Arbitrators shall deliver to the parties the same day And although the Plaintiff did perform all yet the Defendant did not pay the 10 l. the 16 of June next And hereupon the Defendant demurred in Law and the Plaintiff joyned and Iudgment given for the Plaintiff whereupon the Defendant brought this Writ of Error And assigned the first Error because the submission was to four and Error 1 the Arbitrement was by three onely But all the Iustices and Barons did hold that the Agreement was well made notwithstanding for it shall be taken now to be a submission to four or any three of them and so was it agreed in the Kings Bench where this point hath been argued at the Bar oftentimes The second was that the Arbitrators did not make any Award for Error 2 the Bond of 12 l. in which the said Plaintiff and St. Perryn were bound to the now Defendant upon condition to pay 6 l. at certain days and the submission is conditional sc That the Award be made of all things c. and therefore they ought to have determined these matters For it may be that this was the principal cause why the Plaintiff did submit himself to the Award sc to be discharged of this Bond which perhaps was forfeited for not performing the condition with the penalty whereof he shall be now charged And although the Bond was made by the Plaintiff and another yet was it a cause of action depending between the Plaintiff and Defendant for she may sue him 2 R. 3. 18. b. If three men and another do refer themselves to an Arbitrement of all demands between them the Arbitrators may make an Award of all matters which the three had against the other joyntly and of each matter which every one of the three hath against the fourth and may award that every one of the three shall pay mony to the fourth Vide Comment 389. Chapmans Case 21 H. 7. 296. In debt by a woman as Executrix the Defendant said that I. S. her husband and the Defendant did refer themselves to Arbitrament who made an agreement and the husband dyed and the Court held that the debt of the woman as Executrix was extinct by this Arbitrement The clause that the now Defendant should acquit the Plaintiff of Error 3 all Debts wherein he was bound with the Defendant to Dingley c. is insufficient because there is no Christian name The breach is assigned for that the Defendant did not pay the 10 l. Error 4 upon the sixth day of June whereas the Award was that it should be payd upon or before the 16 day of June But all did agree that this was well assigned because that when it is alledged that it was not payd upon the 16 day it was not payd before the day The Arbitrators have awarded that the parties shall stand to their Error 5 Award for construction of the Arbitrement and of all things in the Award and of all matters concerning them for the future which is not in their power for all the Award ought to be made before the last of May. They award 6 s. 8 d. to be payd by Audrey to George Write for ingrossing Error 6 of the Award which is not within the submission 1. Because Write is a stranger 2. Because it is a thing agreed on after the submission Judgment And Hill 14 Jac. The Iudgment was affirmed and they agreed the last agreement to be void but that was not materiall for the Award was void only for that and good for the residue Rot. 100. Hillar 13 Jacob. Mande against French IN
cannot be First because that the Land devised to them is onely a Chamber and a mansion of little value and that is to repair the Bridg and that is a work of such charge that no surplussage can be intended Secondly The clause is Id quod clarum fuerit ultra solutionem reparationem c. which are the very words in the clause used for the disposing of the residue to R. for the time and cannot be referred to the Devise of the Wardens of the Bridge because that the things devised to them are apparently to be for the reparation only and no payment is limited out of it but the Tenement out of which the Stipend is to be payd is first charged with this payment and then with the reparation of the Tenement and then with the Ornaments and Books for the Church And afterwards this Case was argued by Coventrey the Kings Sollicitor for the Plaintiff and by S. Chibborne for the Defendant And Mich. 16. Jac. The Barons viz. Tanfeild Bromley and Denham did openly declare their opinion that the Land was not demised to the Parson by this Will and thereupon they commanded Iudgment to be entred for the Defendant which was entred accordingly Trinit 15 Jacob. John Adams against Roger James Knight and others IN a Replevin for taking of twelve Cowes and two Calves the twenty fourth of May the 14. of King James at Upminster in a place called Nelfeild alias Newfeild ad damnum 10 l. The Defendants did justifie the taking c. as Bayliffs of Thomas James and Moily Deale for that the place contained twenâ—â— acres of Pasture And that William Latham was seised in Fee of the Mannor of Upminster whereof the said twenty acres are parcell and the twenty fifth Maii 13 Eliz. devised the same to George Wiseman excepting one Close of Land or Pasture called Crouckfeild containing by estimation fifty acres and a parcell of a Close called Ecrowchfeild containing by estimation sixty acres and all Woods and Frees and Profits of Court Leets Waifes Estrayes Escheats Hermots Reliefs Goods and Chattels of Felons and Fugitives Deodands and Treasure Trove Habendum from Michaelm 1576. for sixty one years rendring forty pounds Rent at the Annunciation and Michaelmas The first of Octob. 1576. George Wiseman entred The twentieth of August 35 Eliz. William Latham by Deed inroled for the consideration of two thousand pounds did bargain and sell the Mannor to Roger James Father of the Defendant Roger in Fee and the 15 Decemb. 39 Eliz. Roger James the Bargaines did devise the third part of the Mannor to John his Son after whose death John was seised of the third part in Fee The seventh of August 11 Jacob. John James by Indenture for a thousand pounds paid by Thomas Fryth did bargain and sell to the said Thomas Fryth and Moyle Deale the said Reversion of the said third part Habendum from the said seventh of August for a hundred years ex intentione that they should grant or assign the said term to Thomas Fryth or his Assignes upon condition that he should pay a thousand pounds to the said Roger James viz. five hundred pounds the seventeenth of August 1614. and five hundred pounds the seventeenth of Febr. next after And because sixty pounds thirteen shillings foure pence was behind to the said Thomas James and Moyle Deale for halfe a yeare ending at Mich. 12 Jac. they did well justifie the taking c. The Plaintiff said that after the seventh of August Bar. 11 Jac. and before the said Mich. 12 Jac. viz. the ninth of August the 11 Jac. the said Thomas James and Moyle Deale did bargain and sell to the said Thomas Fryth all their Estate in the said third part whereby he was and yet is possessed Replication The Avowants replyed that the Bargain and Sale was upon Condition to pay the said thousand pounds to the said Roger James at the said days of payment and that Thomas Fryth did not pay the said five hundred pounds the seventeenth of August 1614. Rejoynder The Plaintiff rejoyned that after the said ninth of August 11 Jac. scil 10. August 11 Jac. the said John James was seised in Fee of the Reversion of the third part expectant upon the estate of the said George Wiseman And that the tenth of August 11 Jacob. John James by Indenture inroled did bargain and sell the said Reversion to the said Thomas Fryth and his heires That the seventeenth of August 11 Jac. John James by Indenture dated the aforesaid seventh of August 11 Jac. fâ—r a thousand pounds did bargain and sell the said third part to the said Thomas James and Moyle Deale Habendum from the said seventh of August 11 Jac. for a hundred years and that they after scil the aforesaid seventeenth of August 11 Jac. did bargain and sell to the said Thomas Fryth upon condition before expressed Absque hoc that the said John James did bargain and sell to the said Thomas James and Moyle Deale the said Reversion before the said tenth of August 11 Jac. and absque hoc that the said Thomas James and Moyle Deale before the said tenth of August 11 Jac. did bargain and grant the said Reversion to the said Thomas Fryth on condition as aforesaid Vpon which the Avowants demurred and shewed for cause that this is a departure from the Bar and that the said Rejoynder is in it self repugnant And I conceive that Iudgment ought to be given for the Plaintiff in the Replevin for that the Conusance is utterly insufficient for three causes 1. The Defendants make Conusance as Bayliffs to Thomas James and Moyle Deale and do endeavour to entitle themselves to a third part of the Reversion and Rent upon the Lease to Wiseman by the Devise of Roger James and it doth not appear in all the Conusance that Roger James was dead before the Grant made by John James to the said Thomas James and Deale for it is not set forth that he died but only by implication scil the bargain and sale by Latham is pleaded to Roger James lately dead which doth refer to the time of the plea which was long after the Grant to Thomas James and Deale and after the Rent due and the taking of the Distresse then it is alledged that after the death of Roger James the Devisor John James entred which is not sufficient because it is not alledged in fact that he dyed or when he diâ— dye And all the Court agreed the Avowry insufficient as to this exception Secondly the bargain and sale of the Reversion by John James to the said Thomas James and Moyle Deale is pleaded to be made the seventh of August 11 Jac. Habendum from the aforesaid seventh of August for a hundred years whereby the day it self is excluded and so the Grant is to take effect in the future which cannot be by the Rules of Law as in Bucklers Case 2. Rep. where Buckler Tenant for life in Mich. Term 20 Eliz. made
delivery of the possession was made or not and if it were made by the Attorneys of the Bargainees that in Law shall be taken to be the act of themselves and so shall be pleaded and so was it adjudged in this Court Hillar 37 Eliz. in Jordans Case Vide Dyer 354. Object But it may be objected That Hawkins had notice of the Bargain and Sale and therefore the Defendant shall forfeit the Obligation as in Mallories 5 Rep. and Francis Case 8 Rep. 92. in an Entry on condition Answer I answer That the Defendant hath bound himself by the Obligation that Hawkins should deliver the possession to his Assigns and therefore he must take notice thereof at his peril as in 18 Ed. 4. 24. An Obligation upon condition that the Defendant should account before an Auditor to be assigned when he should be required and to pay the Arrearages and it was pleaded that he did account before such an Auditor assigned by the Plaintiff and was ready to pay the Arrearages if the Auditor would give notice c. and it was held insufficient for he ought to take notice at his peril also it is pleaded and found that Henry Powle as Assignee of the Plaintiff did make the request and if notice had been material the Defendant ought to have pleaded that he had no notice but by his Plea notice is implyed Judgment And after Iudgment was given for the Plaintiff by all the Court. Rot. 459. Michaelm 15 Jacob. Agard against Wilde and others IN an Action on the Case for that the Plaintiff is and was of good name and fame and yet the Defendants maliciously intending to cause the Plaintiff to be reputed a Common Barretor the 27 of November the 14 Jacob. did falsly and maliciously procure the Plaintiff to be indicted in this Court that he was a Common Barretor and a Disturber of the Peace at Edmonton in the County of Middlesex ad communem disturbationem inquietationem omnium inhabitantium ibidem To which Indictment the Plaintiff Jovis post Octab. Hillar 14 Jac. did plead Not guilty whereupon issue c. and the now Plaintiff was acquitted by Verdict and Iudgment to his damage of 500 l. c. The said John Wilde said That at the time of the Indictment he and William Smith were impannelled in the great Inquest for the said County and then in this Court were sworn to inquire upon their oaths of all Felonies Trespasses and misdemeanors done within the said County and so being sworn having evidence upon oath of good and loyal men given to the said Defendant and the rest of his Fellow-Iurors The said John Wilde and the other Iurors there and then upon their oaths for the Indictment mentioned in the Declaration did indict the Plaintiff for the said Offence mentioned in the said Declaration as they might very well do Vpon which Plea the Plaintiff demurred in Law And I conceive that Iudgment ought to be given against the Plaintiff for in as much as the Defendant was sworn of the Inquest and he and the other Iurors upon good evidence did indict the Plaintiff it cannot be presumed that he did this on malice but it was done in zeal to Iustice by reason of his oath and although it be true that he and the other Defendants did procure the Plaintiff to be indicted of malice without just cause yet now the oath of the Defendant hath discharged himself of the precedent wrong as may be proved by many Books 21 Edw. 3. 17. a. In a Conspiracy for indicting the Plaintiff of Felony the Defendant pleaded that he was sworn of the Inquest to enquire at the Leet of the Lord Zouch and that he and the rest of the Iury did indict the Plaintiff upon their oath and there Thorp said That Conspirators are always in fault and when one is of the Inquest and sworn to speak the truth that which he saith then is upon his oath and not of Conspiracy and there is no reason to accuse one of Conspiracy where he does nothing 7 H. 4. 31. In a Conspiracy to procure the Plaintiff to be indicted of a Trespass the Defendant said That they were impannelled for the King before the Iustices of Peace in the County of Norfolk and that which they did was upon their oaths Iudgment c. The Plaintiff replyed that there was no such Record and because the Defendants failed of the Record for two days Iudgment was given for the Plaintiff 8 H. 4. 6. The Defendants pleaded that they were indicted the Plaintiff replyed that they procured the Sheriff to return them Gascoigne There is no question but that the Iurors shall be excused of Conspiracy by reason of their oaths Vide 20 H. 6. 5. and 19 H. 6. 19. 4 H. 6. 23. And Nat. Brevium 115. C. and D. it is put for a rule that a Writ of Conspiracy will not lie against the Indictors themselves and if Iurors be sworn to enquire c. and after some of them be discharged by the Iustices they shall not be punished for any such matter because it was when they were sworn but if they conspire afterwards they may be charged with a Conspiracy And Stamford 173. if after the Conspiracy the Conspirators are sworn on the Inquest to enquire c. and they with the others of the Iury do indict him against whom they do conspire no Writ of Conspiracy will lie against them because such thing cannot be intended false or malicious because they do it on their oaths and that with others besides themselves The same Law where after the Conspirators are sworn and have spoken with their companions they are discharged by the Iustices yet by reason that they were once sworn and the Conspiracy therefore discharged And Old Book of Entr. 122. a. In a Writ of Conspiracy to procure the Plaintiff to be indicted of Felony one of the Defendants pleaded Not guilty and the other that he was one of the Indictors in the same manner as our Plea is without any Travers and the Plaintiff replyed nul tiel Record upon which they were at issue c. and in the same Book are four other presidents in all which the same Bars are pleaded And there is also another president where the same Bar is pleaded to which the Plaintiff replyed that the Defendant after the conspiracy of his Covin did procure the Sheriff to impannel and return him to be one of the Iury to the intent that he should indict the Plaintiff Also this Indictment is insufficient in other respects 1. The conclusion is ad communem disturbationem inquietatem omnium inhabitantium ibidem the which word ibidem does refer onely to Edmonton and so there is no common nusance but particularly to them of that Town 2. There is no place alledged where he was a common Barretor 3. The Indictment is that he was a common Barretor ita quod verisimilis fuit facere homicidium lites discordia alia gravamina
d. imposed the third of December the same year by the Master and Wardens and nine Assistants All which sums do amount to 6 l. 13 s. 4 d. That the sixth of December the 15 Jacob. the Plaintiff had notice of the said sums so imposed and although he thereupon payd 19 s. parcel thereof yet he did refuse to pay the residue which refusal the 16 of December was duly proved before the said Master and Wardens wherefore the 16 of December 15 Jacob. the Master Wardens and Assistants taking with them John Sowland a Serjeant of the Mace did take the said ten Hides in the said City in the name of a Distress and took them away detained them for thirty days after the said Distress and because the Plaintiff did not pay the residue of the said 6 l. 13 s. 4 d. nor agreed for the same the said Master and Wardens and T. B. C. G. M. A. T. K. J. G. M. B. K. J. W. T. and R. T. being the major part of the Assistants after the said thirty days viz. 17 Jan. 15 Jacob. at the said City did cause the said Hides to be appraised by the oaths of R. S. c. six approved men of the said City who appraised them at 7 l. and the said Defendants and Thomas Payn and the major part of the said Assistants did sell them for 7 l. and they said that the surplusage amounted to 25 s. 8 d. and no more which the said William and Thomas Payn with the assent of the Master and greater part of the Assistants before the Suit to wit the seventh of January in the same year at the said City did offer to pay to the Plaintiff but he refused to accept thereof Absque hoc that the Defendants are guilty at Tiverton or any other place out of the said City of Exeter Vpon which Plea the Plaintiff demurred And I conceive that Iudgment ought to be given for the Plaintiff And herein I will not stand at this time to argue whether the Custom will warrant this By-law because there hath been a resolution in the Case in the 8 Rep. fol. 125. for London onely I observe that the Customs of London are confirmed by Act of Parliament but so are not the Customs of Exeter But admitting that the Custom will warrant this By-law to restrain a legal Trade or Art within the said City yet I conceive this By-law is utterly voyd for three causes and if it were good yet have not the Defendants pursued the same in taking and selling of the goods and that for two causes And as to the first the Defendants have exceeded their Custom in the extent of this By-law as to the place for the Society of the Art is alledged to be within the City of Exeter and then they alledg the Custom to be That they have used to make By-laws for the better Government and profit of the said City so that all the Custom is confirmed to the City but the By-law does exceed this for it is That none shall make sell or offer to sell any Shooes c. within the City or the County of Exon the which is not warranted by the Custom as in 5 Rep. Chamberlain of London's Case it was ordained That if any Citizen or stranger should send any Cloth to sell within the City before it shall be brought to Blackwell-Hall to be viewed and searched this is resolved to be good although it do binde a stranger but the reason thereof is given because the offence is committed within the City whereupon I observe that they can make no Order to extend without the City This By-law does exceed their power in the things prohibited and that in two things First That none shall make any Boots Shooes c. within the City or County whereby every man is restrained to make such things for his own use or for his Master or Family and such restraint is clearly against Law and Reason for although that Companies of Trades in Cities and Towns are allowed by the Law yet they cannot by any Custom restrain a man from making any thing pertaining to their Art for his private use and therefore if this By-law had been That none should use the Art of a Shoomaker within the City this had been good but to restrain any that he may not make Shooes for himself within the City this is voyd Vide Cooks 8 Rep. 129. Wagons Case where it was resolved That he might make Candles for his own use and so every one may bake and brew for their own use Furthermore the Defendants have not alledged any Custom That none shall make any Shooes c. within the City c. except those of the Society but onely that they may make By-laws for the good government and profit of the Society of the Art and the making of Shooes for ones private use is nothing concerning their Society and this is proved by the resolution in the said Case and by the Statute of the fifth of Elizab. That none shall use any Art in which he hath not been educated as Apprentice for seven years yet it is lawful for any to bake or brew or to make any manufacture for his private use without any offence to the Statute So Cooks 8 Rep. 125. Sir George Farmers Case He as Lord of the Mannor of Torcester did prescribe to have a Bakehouse and no other Baker should sell bread there this was a good Custom but to restrain any from baking for himself cannot be a good Custom And the Case of the Taylors of Ipswich 11 Rep. fol. 55. Order That none should use the Trade of a Taylor until he be presented to the Master and Wardens and allowed by them yet one may make Clothes for his Master and Family in case the said constitution were good This By-law does restrain other persons to use their Arts for it is That none shall do any thing pertaining to the Art of Shoomakers and it is apparent that many things do pertain to the Art of a Shoomaker which are to be done by other Artificers for all things belong to the Art which of necessity must be used with the Art and without which the Art cannot be used as Leather which is to be made by the Tanner Lasts which are to be made by the Last-maker Auls by the Smith Threed and divers other things and all these by this By-law are prohibited not onely to be sold but also to be made by any not being of their Society The penalty imposed by this By-law is not warranted by the Law nor by their Custom for that ought to be reasonable and ought to be exprest to the end that the Court may judg whether it be reasonable or not and therefore it is resolved in Wagons Case That the Pain ought to be reasonable 1. In respect of the manner thereof and therefore it ought not to be by imprisonment for that is against Magna Charta cap. 29. as it was adjudged in Clarks Case
the Statute and therefore they are gone The reason of making of this Act was Answer because divers priviledges which they had as Bona Catalla Fellonum c. were extinct by the accession to the Crown and therefore it was necessary to revive them but if the Statute had not been made yet shall the King have all those Priviledges which were not extinct as Parks Chases Warrens Markets Fairs c. And that this priviledge is given to the King may be proved by a Proviso in the Statute whereby it is provided that all priviledges of Sanctuaries before used or claimed in houses or other places commonly called S. Johns Hold and all other Sanctuaries before used and appertaining to the said Hospitall shall be void and of none effect whereby it appears that if that Proviso had not been made the priviledge of Sanctuaries had been in the King and his Patentees in the same Mannor as had been used before the dissolution and that by force of this word Priviledge and yet this priviledge of Sanctuary does not concern the Land as discharge of payment of Tythes doth Object 3 But it may be again objected that the Statute of the 31. H. 8. hath an expresse clause for discharge of the payment of Tythes which needed not to have been if the generall words would have served Answer I answer that there were two reasons to put this Clause into the said Statute 1. To induce purchasers to buy the said Land and at a greater price 2. For the infinite manners and means of discharge which the Abbots had so that it would be very hard for Purchasers to know them and this appears in Coke Rep. 2. Bishop of Canterburies Case but in our Case the means is very well known and therefore such clause was not necessary And as to the second point I conceive that the clause for discharge of the payment of Tythes doth extend to the possession of this Pryory and yet I do agree that their Lands are given to the King not by the Statute of 31. of H. 8. but by the 32. of H. 8. And to prove this the Statute of 31. H. 8. does extend to all Abbies Pryories Hospitalls and other Religious and Ecclesiasticall houses and this Pryory was Religions and Ecclesiasticall for they vowed Obedience and Chastity and the case in the 27. H. 8. 16. in the case of Martin Dockwray where it is holden that Fryers are dead persons in the Law be they of an Abby or any other Pryory and that appeares by the Statute of 32. of H. 8. of their dissolution by which it is enacted that the Fryers shall sue and be sued by their proper names and that they shall have such capacities liberties and freedomes as were given to other Religious persons in an Aâ—â— at the first Session of this Parliament And in further proof hereof divers Rectories were appropriate to them and Tythes given to them and they enjoyed them and the Statute gives them to the King by which it does appear that they were Religious and Ecclesiasticall Object 4 But it may be likewise objected that the Statute of the 31. of H. 8. does not discharge Chanteries or Colledge lands given to King Edward the sixth of Tythes Answer I answer That the reason of that is that because Colledges although they were Ecclesiasticall yet they were not regular And Coke 2. Rep. 48. B. but the Fryers of S. John of Jerusalem were Ecclesiasticall and Regular And it is not inconvenient that the King and his Patentees should have the benefit of the clause of the Statute of 31. of H. 8. in those lands given to the King by the Statute of the 32. of H. 8. as the Statute of Acton Burnell does provide that if the Extender upon a Statute Merchant does extend the Lands too high they shall answer this to the Conusee and the Statute of 23. H. 8. does order a new form of Recognizance to be taken before any of the cheif Iustices yet the Conusee shall have the said benefit of the Statute of Acton Burnell although it was made two hundred years before the other Statute And for Authority in this point Dyer 277. The Pryor of S Johns of Jerusalem with the Fryers two or three years before the dissolution did make a Lease of a Mannor for years which Lessee did pay Tythes to the Church of Rochester proprietary and after the dissolution the King did grant the reversion of the Mannor to one Stathome and to his Heirs in such ample manner as the Pryor had the same c. the Lease does expire If he and his heirs having the Mannor in their own possession shal be discharged of Tythes or not was the question in Chancery and on consideration had of the Statute of the 31. of H. 8. cap. 13. it seemed by the Lord Keeper Sanders Southcott and Dyer that they be discharged untill they let the same out to others to Farm And Pascha 11. Jac. in the Common Pleas in the case of Weney this case did come into question and argued by Coke Warburton Winch and Nicholls and they were divided in their Opinions Saturday the sixth day of June in the ninth year of the Reign of King Charles Between Francis Townley Esquire Plaintiff Edward Sherborne Executor of Richard Mountford deceased Executor of Thomas Challoner deceased Defendant Vpon hearing and debating of the matter as well on the fifteenth as the eighteenth of June last the Court being assisted with Mr. Iustice Hutton and Mr. Iustice Jones upon the Plaintiffs Bill of Review for the reviving and reversall of a Decree made in a Cause wherein the said Richard Mountford deceased Executor of Thomas Challoner was Plaintiff against the now Plaintiff and Thomas Foster Esquire concerning the summe of one thousand seven hundred pounds raised out of the Rents and Profits of certain Lands and Tenements in Linsted Ardingley and Worth in the County of Sussex in trust for the said Thomas Challoner during his Minority and which the now Plaintiff by the Decree of this Court was to pay in case the said Foster should fail to pay the same severall matters were offered by the Plaintiffs Councell for the reversall of the said Decree as namely that the now Plaintiff was decreed to pay the summe of one thousand seven hundred pounds as raised out of the profits of the Infants Lands settled upon an account made up by the said Forster with the said Thomas Challoner the Infant after he came to age whereto the Plaintiff Townley was neither party nor privy nor ever consented nor ought to be bound thereby And secondly that the said Plaintiff is by the said Decree made lyable to the payment of all the profits raised out of the said Infants Estate whereas he never received any profits at all and although he gave some Acquittances yet the same were onely for the three first half yeares and no more and were but to ballance an account the monies disbursed amounting to as much as
Bartons Case Two Ioynt-tenants are for life and one lets his moyety for years to commence after his death and dies and agreed to be a good Lease against the Survivor for as Litton saith every Ioynt-tenant is seised Per my per tout and hath an Estate in one moyety not only for his own life or his own time but also for the time and life of his Companion and therefore every Estate made by him is good for a moyety so long as the Estate of himself and his Companion continues but a Rent-charge shall not bind his Companion because he claimes by the first Conveyance which is above his Companions Estate And as to the second point it is cleer that when Husband and Wife Part. 2 make a Feoffment in Fee or a Lease for years of the Land of the Wife rendring Rent the Wife after the death of her Husband may accept the Rent and make the Lease good as in 26 H. 8. 2. the case of the Feoffment is agreed and if a Woman after the death of her Husband does accept the Rent she shall be barred in a Cui in vita 11. H. 7. 13. 15. Ed. 4. 17. and Dyer 91. B. Husband and Wife make a Lease for years by Indenture and the Husband dies and she accepts the Rent she shall be bound thereby and shall not avoid the Lease Vpon which two things being as I conceive unquestionable it follows that this Lease at the time of the making thereof is not void but voidable And therefore the sole question will be how this Lease is voidable and if it may be avoided by the surviving Ioynt-tenant or not And I conceive that it is avoidable by the Wife only if she survive her Husband and not by the other Ioynt-tenant and that for two reasons First Because the Survivor comes in above the Lease and therefore cannot take advantage of any imperfection or defect to avoid the Lease 14. Ed. 4. 1. B. If a Feoffment or a Lease for life be made to two and one dies the other may plead the Estate to be made to him only for he is not in by him that is dead but by the Feoffor or Lessor and Dyer 187. a. Two Ioynt-tenants for life one makes a Lease for yeares rendring Rent and dies the Survivor shall not have the Rent And if Tenant for life makes a Lease for years rendring Rent and surrenders to the Lessor the Lessor shall not have the Rent for he is in by his Reversion which is above the Lease for years and 28. H. 8. 96. a. An Executor had Iudgment to râ—cover a Debt and died intestate whereupon Administration is committed to another he shall not have a Scire facias upon this Iudgment because that he being Administrator immediately to the Testator is above the recovery Secondly There is no privity between the surviving Ioynt-tenant and the Lessor to make him avoid the Lease which is voidable as in 8. Rep. Whittinghams case Privies in blood as Heir generall or speciall shall avoid a voidable estate made by the Ancestor as if an Infant make a Feoffment in Fee his Heir may well enter and avoid the Feoffment but Privies in Law as Lord by escheat Lord of a Villain or Lord who enters for Mortmain shall never take benefit of the Infancy because they are but strangers And therefore if an Infant make a Feoffment in Fee and dies without Heir the Feoffment is unavoidable 49. Ed. 3. 13. 6. H. 4. 3 7. H. 5. 9. 39. H. 6. 42. And as to Privies in Estate as Ioynt-tenants Husband and Wife Donor in Tail and Donee Lessor and Lessee it is there also resolved that they shall not take advantage of Infancy unleâ—â—e it be in some speciall cases And therefore if Tenant in Tail within age makes a Feoffment in Fee and dies without Issue the Donor shall not enter contrary to the opinion of Rick and Frisby 6. H. 4. 3. because that here is only a Privity in Estate between them and no right does accrue to the Donor by the death of the Donee So if two Ioynt-tenants in Fee be and one of them being within age makes a Feoffment in Fee and dies the Survivor shall not enter but if two Ioynt-tenants within age do make a Feoffment one joynt Right remains in them and therefore if one dies the Right will survive and the Survivor may enter in all and the same Law of Covertue or non sanae memoriae as it is said also in Whittinghams case and in Fitzherb N. B. 192. K. If two Ioynt-tenants within age do alien in Fee they must sue severall Writs of Dum fuit infra aetatem because that the cause of their Action is their nonage which is severall for the nonage of the one is not the nonage of the other But if Husband and Wife within age do make a Feoffment of the Wifes land and the Husband dye the Wife shall have a Dum fuit infra aetatem 14. Ed. 3. Dum fuit infra aetatem 6. and 12. H. 7. 18. B. Kelloway In a Formedon by the Lord Brook against the Lord Latimer if an Infant does make a Feoffment none shall avoid this but the Infant himself and his Heirs and no stranger and the same Law of a Feme Covert And as to the case of Harvey and Thomas 33. Eliz. cited in the Lord Cromwells case Where the Husband made a Lease of his Wifes Land for years and then he and his Wife aliened by Fine and the Husband dies the Conusee shall avoid this Lease which I agree to for the Lease being made by the Husband only is utterly void against the Wife and cannot be made good by any Act done by the Wife and the Land passeth all from the woman by the Fine and therefore the Lease cannot bind the Conusee The Survivor in one case cannot make the Lease good by the acceptance of the Rent because that the Rent does not belong unto him and therefore he shall not be received to avoid this Lease as in Nat. B. 138. B. the Heir shall not have a Cessavit for ceasing in the time of his Ancestor for he shall not have the Rent or the arrearages incurred in the life of his Ancestors and the reason is as I conceive because that the Law does give this benefit to the Tenant for the saving of his Tenancy for the tender of arrearages the which cannot be to the Lord because that the Rent is not due to him and therefore the Lord shall lose his action rather then the Tenant shall be deprived of his advantage of saving the land by his tender And by this case also the Aunt and the Neice shall not joyne in a Cessavit for a ceasing made before the Title of the Neice accrued but in Nat. F.B. 139. it is otherwise there of joynt-tenants as I conceive the reason whereof is because as I conceive the Survivor shall have all the Rent and therefore the tender may be made to him
13. H. 4. 17. B. If one makes a Feoffment in Fee rendring Rent upon condition to re-enter for non-payment and dies the Rent being arrear the Heir cannot demand the Rent or enter for non-payment because that the Rent is not due to him and as he cannot dispence with the Condition for acceptance of the Rent so cannot he enter for non-payment thereof And I argued this Case again on Fryday being the first day of Trinity Term 14. Jac. 31. Maii at which day Daston did also argue for the Defendant but the Court did not then give any direct Opinion but seemed to incline very much for the Plaintiff And Hil. 14. Jac. the case was argued by Chilborne Serjeant for the Plaintiff and Davenport for the Defendant at which time all did agree that the Lease continued But Davenp took exceptions to the replication For he said that the marriage of Jane with Rob. Hawkins is alledged to be 21. of No. 39. Eli. and the death of William Agborrow her first Husband the 20. of Febr. 39. Eliz which is after the marriage but that was held not materiall for it is said that William Agborrow died the twentieth of Febr. 39. Elizab. and that atferwards viz. the one and twentieth of Novemb. 39. Eliz. Jane did marry Thomas Hawkins so that the afterward is sufficient Trin. 37. Eliz. Rot. 206. Butler against Wallis In a Trespasse the Defendant justified by vertue of an Extent upon a Statute and did shew the Extent and that the 28. of Febr. a Liberate was awarded by vertue whereof the Sheriff the 27. of Octob. delivered the land to him c. yet adjudged sufficient for when he said Virtute brevis the mistake of the day afterward is not materiall And at last in the said Term of S. Hillary Judgment all the Court agreed that the Lease continued good against the Survivor and cannot be avoided by him and that the acception to the pleading was not materiall And thereupon Iudgment was given for the Plaintiff Rot. 668. Pasch 11. Jacob. Between Thomas Palmer Knight Plaintiff Richard Greenwill and Edward Greenwill Executors of John Greenwill Defendants IN an Action of Debt on a Bond of fifty pound entred into by the Testators the 20. of Novemb. 5. Jac. The Defendant demanded Oyer of the Bond and Condition which was that if the Testator his Heires Executors and Assignes did perform all the Covenants comprised in certain Indentures bearing date with the Obligation made between the Plaintiff on the one part and the Testator of the other part that the Obligation shall be void And the Defendant pleaded that the Plaintiff by the said Indenture did let to the Testator a House and the moyety of his land amounting to about thirty Rods of land in Pollicote to have c. from Michaelmas last past for seven years rendring twenty pounds Rent and shewed that the Testator did covenant by the same Indenture for him his Executors and Assignes with the Plaintiff his Heires and Assignes within two years after the beginning of the said Lease to deliver or cause to be delivered to the Plaintiff or his Assigns a Map or Plot made in distinct manner by men of skill as well of all the land in little Pollicot as was then in his occupation and in the occupation of Thomas Cocker and John Crooke parcell of the Demise of the Plaintiff in Pollicot aforesaid as of all the land in the occupation of the Testator by a lease of Lincoln Colledge in Pollicot aforesaid which are all the Covenants c. And pleaded that the Testator in his life time and the Defendants after his death had performed all the Covenants c. Replication The Plaintiff replied that the Testator within two years after the beginning of the Lease did not deliver or cause to be delivered to the Plaintiff or his Assignes a Map or Plot made in distinct manner by Surveyors and men of skill of all the land in little Pollicot aforesaid in his occupation and in the occupation of the said Thomas Cocker and John Crooke parcell of the aforesaid Demise of the Plaintiff in Pollicot aforesaid Secundum formam effectum Indenturae praedict Vpon which Replication the Defendants demurred in Law And I conceive Iudgment ought to be given for them against the Plaintiff First the Plaintiff replies that the Testator did not deliver the Plot and it may be that it was delivered by the Defendants who were his Executors which is a good performance of the Covenant and if so then the Plaintiff has no cause of action and where the matter is left doubtfull in the Replication it shall be taken most strongly by the Plaintiff who pleads it And in the Comment 104. a. Fulmerstone against Steward If a man be bound to pay twenty pounds about Christmas it is no plea for him to say he hath paid it but he must shew when or otherwise it shall be intended that he paid it after the Feast and before the Suit And so in a Dum fuit infra aetatem if the Tenant do plead a Release of the Demandant it is no plea without saying that he was of full age for the plea shall be taken most strong against himself and that is that it was made when he was within age and 3. H. 7. 2. If the Defendant in a Trespasse does plead a release it is not sufficient without shewing that it was made after the Trespasse for otherwise it shall be taken to be done before And 26. H. 8. Pleading 147. If in a Praecipe quod reddat the Tenant does plead Warranty collaterall of the Ancestor of the Demandant and he replies that he entred and so does avoid the Warranty it is not good without saying that he entred in the life of the Ancestor for otherwise it shâ—ll be intended that he entred after the descent of the Warranty and in Dyer 89. and 96. The Plaintiff in an Ejectment declared on a Lease for years to begin at Michaelmas after the death of Thomas Boydon and M. his Wife and set forth that they died and he entred and adjudged insufficient for it might be that he entred after this death and before Michaelmas and Dyer 28. H 8. 27. A Covenant that the Lessee and his Assigns shall pay all Rents pleading that the Lessee hath paid them is not sufficient because the Assignes are omitted In his Occupation are words uncertain sc whether they shall be referred to the Plaintiff who iâ— last named or to the Testator 7 H. 7. 7. Ed. 6. Dyer 84 a. In a Trespasse brought by the Husband and Wife for breaking their Close bona sua capt and pleaded of a Trespasse made to the Woman Dum sola fuit for which the Writ abated The Plaintiff ought to shew that â—ome land was in the possession of Kocker and Crooke for otherwise it is impossible that a Map should be made thereof 12. H. 7. 8. a. 6. H. 7. 6. a. If I am bound to
April And whereupon the Defendant demurred in Law And I conceive that the Action will not lie for the Arbitrement is bond because the Arbitrators have exceeded their authority First because they have no power to discharge any action or duty accrued to any of the parties as Administrators Secondly because that by the Release the Obligation it self to stand to the Arbitrement is discharged Cook 10 Rep. 131. where Moor brought an Action against Bedell upon a promise to stand to the Arbitrement of A. and B. concerning all matters then in difference between them and that was the last day of Novemb. 24 Elizab. And the 10 of Decemb. the 24 of Eliz. they did agree that Moor should pay to Bedell certain monies and that Bedell should release all demands until the 15 of June 24 Eliz. and the Defendant in consideration of this submission did assume that he would not sue any Execution upon a Iudgment And the Plaintiff there assigned two Breaches one that he did not Release the other that he sued Execution And this was found for the Plaintiff upon a non assumpsit and entire damages given and then after it was reverst by Error because that the agreement as to the Release was voyd and therefore the damages being entire the Iudgment was erroneous And Michaelm 11 Jacob. Rot. 155. Staires against Wilde wherein an Action of Debt upon an Obligation to perform an award of and concerning all matters c. And they made an Award that one should pay to the other 3 l. and that each should release all Actions and Demands and the breach was assigned in not paying the 3 l. adjudged to be a voyd Arbitrement in all because it was to release all Actions at the time of the Release which is not within the submission And Pasch 42 Eliz. Rot. 211. Knap against Mâ—w where the condition was to perform an Award of certain things c. who did award that one should pay 20 l. to the other and that each should release all Actions and Demands and the breach was assigned in non-payment of the mony and it was adjudged that the Award was voyd And at last all the Court agreed that the Award was good as to all that was submitted to and voyd for the others and that the breach being assigned in a matter submitted to does give a sufficient cause of Action to the Plaintiff Wherefore it was adjudged that the Plaintiff should recover c. Hillar 13 Jacob. Smith against Whitbrook IN an Action on the Case for words viz. for saying to the Plaintiff the 4 Septemb. 12 Jacob. Thou meaning the Plaintiff art a Traytor and an Arch-traytor and I meaning the Defendant will hang thee or be hang'd for thee and after the 15 Septemb. 12 Jac. the Defendant did procure the Plaintiff to be brought before Sir Robert Cotton Knight and Robert Castle Esq two Iustices of Peace of the said County for Oyer and Terminer c. and did complain to the said Iustices that the Plaintiff had said and published divers Traytorous words of the King by reason whereof the Plaintiff was committed to the Goal of the said County by the said Iustices and there was imprisoned and did so remain until the next Sessions of Peace of the said County holden the 4 of Octob. 12 Jacob. before Robert Bell Knight Robert Payn Knight and other Iustices c. and the Plaintiff was compelled to finde Sureties for his appearance against the next Sessions to answer to such things as should be objected against him on the behalf of the King and in the mean time to be of good behavior c. At which next Sessions holden the 10 Janu. 12 Jac. before the said Iustices and other Iustices the Plaintiff did appear upon which the Defendant the same day and year in the publique Sessions did say of the Plaintiff I meaning the Defendant do accuse Robert Smith meanining the Plaintiff absolutely whereupon the Plaintiff was committed to the Gaol by the said Iustices and there remained in prison for the space of a month whereas the Plaintiff did never speak and Traytorous words against the King nor had committed any Treason against the King and this he layd to his damage of 1000 l. The Defendant pleaded that before the time wherein the said words are supposed to be spoken viz. the third of Septemb. the 12 Jacob. the Plaintiff having speech of the King did speak of him these Traytorous words The King meaning our Lord the King is a scupry King and so justified the several words and also the procurement of the Plaintiff to be brought before the said Iustices The Plaintiff by Protestation saith that he did not speak the said words of the King and for plea did demur in Law and the Defendant joyned Judicium And after Iudgment was given for the Plaintiff without reading the Record or having any argument because that the justification was insufficient and the Record was not read because it imported Scandal to the King Cooper against Smith IN an Action on the Case for words scil Thou and Waterman did kill thy Masters Cook meaning one Yarnton late Servant of Francis Dingley Esq and thou wast never tryed for it and I will bring thee to thy Tryal for it The Defendant pleaded Nor guilty and it was found for the Plaintiff and it was moved in Arrest of Judgment that it was not averred that the Plaintiff had a Master and that Francis Dingley was his Master but resolved that it need not be aveâ—â—â—d for if he had no Master yet it is a Scandal as if one should say Thou hast stoln the Horse of I. S. there is no need to aver that I. S. had a Horse and if everment be necessary it is averred here when he said Thy Masters Cook and there it is averred that the Cook was servant to Francis Dingley and it follows also that Francis Dingley was Master to the Plaintiff Judgment Wherefore Judgment was given for the Plaintiff Trinit 14 Jacob. Weal against Wells IN an Action on the Case for that the Defendant the 22 of Novemb. the 13 of King James crimen Felonie querenti false malitiose imposuit and did cause him to be arrested and taken for the Felonious taking and stealing of five Heifers of the Defendant and caused him to be brought before Sir Thomas Bennet one of the Iustices of Peace c. and out of malice also at the Sessions of Peace at the Guild-hall London before the Major and other the Iustices of Peace c. did cause him to be indicted maliciously and falsly for the Felony of stealing of five Steers the 23 Octob. 13 Jacob. and did cause him to be detained in the Gaol of Newgate until he was legally acquitted at the Gaol delivery the first of December the 13 Jacob. to his damage c. 100 l. and did aver the matter in the indictment to be false The Defendant said that the 18 Novemb. 13 Jacob. he was possessed
favourably then a Plea yet is it all one for I agree that a Verdict need not be so formall as a Plea but if it wants substance either on the one party or the other this shall prejudice the party as much as if there had been a pleading for the Court cannot give Iudgment without some matter found and therefore for as much as in our Case the life of Sir Richard makes for the Defendant and all the validity of his Lease depends thereon he ought to prove by evidence that Sir Richard was alive so that the Iury might have found it and because it was not so found the Court will not intend that he is alive and therefore he shall be taken to be dead and so his confirmation is finished But admitting it shall be intended that he is alive yet I conceive that immediatly upon the death of Valentine his Estate which he had by the limitation of the use is determined and vanisht and he is remitted to his Estate-taile and then his confirmation as I have already proved which doth charge the Estate which he hath by limitation of the use cannot endure Yet I will agree that if Tenant in Taile makes a Feoffment to the use of himself for life and after to the use of his Issue being within age and dies that his Issue shall not be remitted as it is resolved in the Comment 111. Townsends Case and 207. Standbridge and Morgans Case But the diversity is when the Estate-taile is discontinued wherby the Entry of the Issue is taken away and he is put to his Formedon there he shall not be admitted for the limitation of a use to him for if he will take the Estate according to the use he ought to take it in the same manner as he had the use but when no discontinuance is made of the Estate-taile it is otherwise as in Townsends Case Comment 111. Where Amy the wife of Roger Townsend was Tenant in Taile and the Husband the 29. of H. 8. made a Feoffment to the use of himself and his wife for life the Remainder to the use of their eldest Son for life with divers Remainders over the husband and wife died and resolved that neither the wife nor the Son are remitted and the reason there was because that the Feoffment being made before the Statute of 32. of H. 8. was a Discontinuance to the purging of which the wife was driven to her Cui in vita and cannot avoid this by Entry as she might after the Statute of 32 H. 8. and therefore it is there agreed that if a Disseisor make a Feoffment to the use of the Disseisee and he enters he is remitted because his Entry was congeable And so Dyer 191. 2 3 Eliz. Land is given to the husband and wife and to the Heirs of the body of the husband the husband after the Statute of 32 H. 8. makes a Feoffment to the use of himself and his wife for life the Remainder to the first Son for life the Remainder to the right heirs of the husband the husband dies and it was resolved in the Court of Wards that the wife should be remitted notwithstanding the Statute of Vses because that her Entry was congeable and so 11 H. 7. 12. a. If the son disseiseth the Disseisor of his Father and the Father dies now forasmuch as that a right of Entry was in the Father which by his death doth descend to the Son he shall be remitted notwithstanding that he came to the possession by his own proper and wrongfull Act which is as strong against a Remitter as an Agreement is to a Vse And so if the Son and another doth disseise the Father and the Father dies the Son is remitted and shall put out his companion And then Sir Richard being remitted the Confirmation as I have shewed before being but a charge upon the Advowson is meerly determined and so Littleton 148. B. If Tenant in Taile enfeoffs his Issue within age who at full age doth grant a Rent-charge or a Common and the Father dies the Issue shall hold discharged and 40 Ed. 3. 448. If Tenant enfeoff a stranger who grants a Rent and enfeoffs his Son within age and the Tenant in Taile dies the Issue shall hold the Land discharged and the same Law by Catesby in 12 Ed. 4. 13. b. If Tenant in Taile after Discontinuance does repurchase the Land and dies and the reason is because the Statute that was charged is vanisht And although that the opinion of Bromley 33 H. 8. Dyer 51. b. be that the Issue in such case shall not avoid a Lease for years made by him before his Remitter yet the case of a Rent is there also agreed that it is determined by the Remitter and the same Law is in Ioynt-tenancy if one doth make a Lease for years so that he doth dispose of the possession this shall bind the Survivor but otherwise if he charges the Land with a Rent or other thing and so is it where a husband hath a term in right of his wife as in 7 H. 9. 2. 3. And as to the last part of the Case so If the Fine levied by Valentine the Son and Heir of Sir Richard Knightley doth give any force or strength to the confirmation or not and I conceive that it doth not for three causes First the Fine is not with any Proclamations so that it is no bar to the Intail and therefore it is no more then a bare Grant of a Tenant in Tail Secondly As this Fine is found it cannot be intended to be levied by Valentine Knightley the Son of Sir Richard but by a stranger of that name for it is first found that the 27 Eliz. Sir Richard did grant the Advowson to Valentine Knightley then his Son and Heir apparent and that the 36 Eliz. a Fine was levied between B. T. and H. Y. Plaintiffs and Valentine Knightley Esquire Deforceator wihout saying the aforesaid and therefore I conceive that Valentine Knightley Esquire who levied the Fine cannot be intended to be Valentine Knightley Son and Heir of Sir Richard and yet I agree the Case of 21 H. 7. 30. That when Westminster is put into a Plea and then a matter is alledged apud Westmonasterium without praedict it shall be intended the same place but when another addition is given to the person or place it is otherwise and therefore in the second place if it be sayd apud Westmonasterium super Thamesin it shall not be taken for one place 5 Ed. 6. Dyer New Book of Entries 650. 35 36 Eliz In the Kings Bench Vpon a Trespasse for breaking his Close and breaking and spoyling two Gates and three perches of Hedge the Defendants prescribed to go there in perambulation upon which there was a demur c. and adjudged for the Plaintiff 1. Because that he ought to alledge this by custome and not by prescription 2. Because the Bar was that the Plaintiff had obstructed the
portion not payd then if the Defendant shall pay to the said Susan the said 400 l. within six weeks after the said first of May to such person to whom the said Elizabeth by the said Will ought to pay the same and shall procure good and sufficient discharge to the said Elizabeth of the said sum of and from all persons to whom the same shall be due that then all the said Obligations shall be voyd and delivered up to the Defendant cancelled and made voyd And the said Elizabeth did covenant that until manifest default was made in the premisses and the said Elizabeth shall be thereof damnified and upon reasonable request no satisfaction shall be given to her she will not take any advantage by reason of the said Obligation nor will prosecute any Suit against the Defendant or any other bound in the said Obligation And the Defendants said that the Plaintiffs nor any of them was not damnified by reason of the said Obligation in the Declaration or by reason of any of the said other Obligations and did aver the said Obligation in the Declaration and the said Obligation of 120 l. in the Indenture to be all one and that the said several days of payment limited by the Indenture nor any of them at the time of the Writ purchased were incurred Vpon which Plea the Plaintiffs demurred and the Defendant did joyn And I conceive that Iudgment ought to be given for the Plaintiffs for the Plea is utterly insufficient for divers causes And yet I do agree that although the Obligation be upon a condition yet is the Indenture a Defeasance thereof so that it is sufficient to the Defendant to perform the one or the other But the Indenture is of two parts 1. That if the Defendant shall pay to Elizabeth the daughter 500 l. and shall perform the other things mentioned in the Plea that all the Obligations shall be voyd and delivered up 2. The Plaintiff Elizabeth did covenant that until the Defendant should make default in the premisses and she should be damnified and upon request no satisfaction given to her she should not take any advantage of the Obligation nor shall prosecute any Suit against the Defendant or any other bound in the said Obligation And as to the first part I do agree that this is a good defeasance of the Obligation but the last clause is onely a Covenant and cannot be pleaded in bar of this Action brought upon this Obligation as in the 21 H. 7. 30. John de Pusetoes Case The said John and others were bound to T. who by Deed did grant to the said John that he should be quite discharged of the duty and if he be vexed or sued that the Bond shall be voyd which Case is there very largely argued but I conceive the better Opinion to be that the Bond is discharged because that the words are in effect as the words in the first part of this Indenture scil That if such act be made the Obligation shall be voyd But there Fineux said That if I grant to my Tenant for life that he shall not be impeachable for waste he shall not plead this in Bar but shall have an Action of Covenant thereupon And Brudnell put this case That if I grant to one against whom I have cause of Action that I will not sue him within a year this is not any suspension of the Action Vpon which case it is to be observed that I may sue and the other is put to his Action of Covenant And the Plea is first insufficient because he pleads that the Plaintiffs nor any of them were damnified by reason of the Bond in the Declaration or by reason of any of the aforesaid Writings obligatory in the said Indenture specified but he does not answer to the damnification by reason of the 500 l. to be payd to Elizabeth the daughter which is the principal matter to be done by the Defendant for the defeasance and in truth this Portion was due and not payd before this Suit begun The Defendant did aver that the several days of payment limited by the Indenture are not incurred and there is not any day limited for the payment of 500 l. and the truth was that it is payable at the time of the marriage of Elizabeth the daughter but this is not limited by the Indenture nor any time for the payment thereof and therefore this a verment is not good The Indenture of the Defeasance is if the Defendant shall pay the 500 l. or procure to the Plaintiff Elizabeth sufficent discharge for the same and shall provide fit maintenance for Elizabeth the daughter Whereupon I conceive that the Defendant ought to pay 500 l. and provide maintenance for the daughter or otherwise that he should procure a discharge from the Plaintiff Elizabeth and shall also provide maintenance for the daughter for her maintenance is as necessary if the mony be payd as it will be if the discharge be procured And the Defendant hath made no answer to the providing of maintenance Judgment And Michaelm 15 Jacob. Iudgment by all the Court was given for the Plaintiff Rot. 590. Trinit 16 Jacob. Margaret Evans against Wilkins IN an Action on the Case for that the Plaintiff the 12 September 15 Jacob. did retain the Defendant to be her Shepherd c. and that the Defendant in consideration of 6 d. to him payd by the Plaintiff and of 33 s. 4 d. of his Sallery to be payd to him for a year and in consideration that the Plaintiff did assume to pay the 33 s. 4 d. to the Defendant and to finde him meat drink and lodging for the said year and to permit the Defendant to have Pasture for twelve Sheep with the Sheep of the Plaintiff Did assume to serve the Plaintiff as a Shepherd for one year from Michaelmas next c. and to keep her Sheep To which the Plaintiff giving credit did not retain any other Shepherd and the Plaintiff did aver that she was ready to pay the Defendant the said 33 s. 4 d. and to provide him meat c. and to permit him to have Pasture for twelve Sheep with the Sheep of the Plaintiff yet the Defendant did not feed the Sheep of the Plaintiff although required the 4 Octob. 15 Jacob. whereby many of her Sheep dyed ad damnum 40 l. The Defendant pleaded the Statute of the 5 Elizab. whereby it is enacted That the Justices of Peace of every County or the greater part of them then resident in the County and also the Sheriff if it may be and every Major Bayly or other chief Officer of any City or Town Corporate in which there shall be any Justice of Peace within the limits of the said Town before the tenth of Iune next coming and afterwards shall yearly at every general Sessions first held and to be kept after Easter or any convenient time after Easter shall meet together and after such meeting shall call
for a year rendering forty shillings Rent at Michaelmas and before the Feast does release to the Lessee all Actions yet after the Feast he shall have an Action of Debt for non-payment of the forty shillings notwithstanding the Release And 40 of Ed. 3. 48. Hillary By such Release to the Conusor of a Statute-Merchant before the day of payment the Conusee shall be barred of his Action because that the Duty is always in demand yet if he release all his right in the Land it is no Bar 25 Assis 7. And Althams Case Cokes Rep. 153. By a Release of all Demands not onely all Demands but also all causes of Demands are released And there are two manners of Demands viz In Deed and in Law In Deed As in every Praecipe quod reddat there is an express Demand In Law As in every Entry in Land Distress for Rent taking and seising of goods and the like acts in Pais which may be done without words are Demands in Law And as a Release of Suits is more large and beneficial then a Release of Complaints or Actions so a Release of Demands is more large and beneficial then any of them for by that is released all those things that by the others are released and more for thereby all Freeholds and Inheritances are released as in 34 H. 8. Releases 90. 6. He who does release all Demands does exclude himself of all Entries Actions and Seisures And Littl. 170. By the Release of all Demands Warranty is released and yet that is Executory and the reason hereof is that by the Release of Demands all the means remedies and causes that any hath to Lands Tenements Goods or Chattels are extinct and by consequence the right and interest in all of them And in 40 Ed. 3. 22. It is debated there whether a Release of all Demands by the Lord to the Tenant to hold onely by Rent and Fealty shall bar the Lord to demand reasonable ayd to marry his Daughter but it was agreed there that such Release shall bar the Lord of his Rent for as it is there said that is always in demand And 13 R. 2. Avowry 89. One gives Land in Tayl to hold by Rent Homage and Fealty for all Services and Demands this does discharge the Tenant of Relief but 18 Ed. 3. 26. contrarium tenetur And 7 Ed. 2. Avowry 211. Suit at a Leet by reason of Residency is not discharged by a Feoffment to hold by Rent for all Services and Demands for this service is not in respect of the Land but of residency of the person And 14 H. 4. 2. Gilbert de Clare Earl of Glocester before the Statute of Quia Emptores Terrarum did give Land parcel of the Honor of Glocester to hold of him as of the Honor to hold by Homage Fealty and Rent for all Services and Demands And after long argument it was agreed and hereby the Lord was excluded to have a Fine for alienation which otherwise was due from every Tenant of the Honor. And as the Fine was discharged there by the Feoffment so it might have been by Release of all Demands And the whole Court agreed Judicium that by this Release of all Demands the Rent is released and so the Plaintiff ought to be barred and so Pasch 16 Jacob. Judgment was given accordingly Hillar 13 Jacob. Southern against How IN an Action on the Case for that the Defendant the first of April 5 Jacob. was possest de quibusdam Jocalibus artificialibus contrefectis Anglice artificial and counterfeit Iewels viz. two Carcanets one pair of Ear-rings one pair of Pendants and one Coronet as of his proper goods and the Defendant there and then knowing the said Iewels to be artificial and counterfeit and fraudulently intending to sell them for true and perfect Iewels there and then did deliver them to one William Sadock his servant to whom at that time the said Iewels were known to be counterfeit and artificial and did command the said William to transport the said Iewels beyond the Seas into Barbary where the Defendant well knew that the Plaintiff was residing and did further command the said William that he should conceal the counterfeitness and falsness of the said Iewels and that after his arrival he should repair to the Plaintiff and shew him the said Iewels for good and true Iewels and there require the Plaintiff to sell the said Iewels for good and true Iewels for the Defendant to the King of Barbary or to any other that would buy them and that he should receive a price for them as if they were good and true Iewels That the 20 of April 5 Jacob. the said William did sail from London to Barbary and there the 22 June 5 Jacob. arrived and did then repair to the Plaintiff and knowing the said Iewels to be artificial and counterfeit did shew them to the Plaintiff for good and true Iewels and there and then did require the Plaintiff to sell them for good and true Iewels to Mully Sydan then King of Barbary and there then did affirm to the Plaintiff that the said Iewels were worth in value 14400 Dunces of Barbary Mony amounting to 810 l. of English Mony And the Plaintiff not suspecting the said Iewels to be counterfeit but conceiving them to be good and true did receive them of the said William and afterwards scil the 22 of August 5 Jacob. did offer them to the said King of Barbary as good and true Iewels and there and then did procure the said King to buy the said Iewels not being of the value of 3000 Ounces of Barbary Mony amounting to 168 l. 15 s. English for 14400 Ounces of Barbary Mony amounting to 810 l. which mony the Plaintiff the 22 of August 5 Jacob. received of the said King for the said Iewels for the Defendant and did pay the said sum then there to the said William for the Defendant and the said William immediately after the receit thereof did secretly withdraw himself out of Barbary and did return into England to the Defendant with the said sum and the first of October 5 Jacob. did pay the same to the Defendant That the 30 of May 6 Jac. the said King perceiving the said Iewels to be counterfeit caused the Plaintiff to be arrested and imprisoned for them and retained him in prison three months and until the Plaintiff out of his proper goods did repay to the said King the said 14400 Ounces of Barbary Mony That the first of October 6 Jac. the Plaintiff gave notice to the Defendant of the repair of the said William to him and of all the premisses and requested him to pay to the Plaintiff the said sum which yet he hath not payd ad damnum 2000 Marks The Defendant pleaded Not guilty The Iury found that the first of April 5 Jac. the Defendant was possest of the said Iewels and knowing them to be artificial and counterfeit and intending fraudulently for good and true Iewels