that if it had been by Writ he must have shewed it but need not it being by Plaint if the truth appear in that and if a man bring his Action as Assignee he need not shew it in his Plaint if the truth appear in the Declaration but it is otherwise in an Original and a Plaintiffe in Kings Bench as an originall but not in all things and if the Plaint be incertain the Defendant in that Court shall plead in Abatement of the Plaint as to an Original in the Common Pleas and at last two Presidents were shewen one between Champion and Hill and the other between Merrick and Wright that were allowed without naming of the Plaintiff Rector in the Queritur and Judgement was given for the Plaintiff by the whole Court Note it was agreed by all the Court of Kings Bench Mich. 5. Jac. and hath many times been ruled that if a man sell his Tithes for years by word it is good but if the Parson agree that one shall have his Tithes for seven years by word it is not good by the opinion of Fleming Cheif Justice because it amounts to a Lease and he held strongly that Tithes cannot be leased for years without a Deed. COb versus Hunt Hill 5. Jac. Cob sued a Prohibition in the Common Pleas against Hunt Parson of D. in Kent and suggests a Modus demandi as to part of the Tithes demanded against him in the Spiritual Court and as to the residue suggests a Contract executed and performed between him and the Parson in satisfaction of the residue and because he proved not his Suggestion within six Moneths Hunt the Parson had a Consultation and Costs assessed by the Court to fifty shillings and Damages fifty shillings by the Statute of the 2 E. 6. they shall be doubled but in truth no Judgement was given to recover them because these words Videlicet Ideo considerat fuit qd recuperet was omitted yet Hunt thinking that all was certain and perfect brought an Action of Debt in the Common Pleas for the Costs c. and declared of all the matter above and that the Damages were assessed upon which it was adjudged that he should recover c. and that the Costs were not paid Per quod Actio c. And had a Judgement against Cob by Non sum informat and thereupon Cob brought his Writ of Error as well in the Record and Processe c. of the Prohibition as of the Record and Processe in the Action of Debt for the Costs and assigne the general Error but Yelverton assignes two Errors in special first that there was no Judgement in the Prohibition for Recovery of the Costs but onely an Assessement of Costs without any more which is not sufficient for the Assessement of Costs onely is but matter of Office in Court but no Judgement of Court to binde which was confessed by the whole Court The second Error was that no Costs ought to be assessed or adjudged in the Cause above because the Prohibition is grounded solely upon the Modus decimandi which needs proof and upon the Contract between the parties which requires no proof and the Suggestion being intire and part of it needing no proof they could not give any Costs for that is onely where the whole matter in the Suggestion needs proof and therefore the mixing the Contract with the manner of Tithing priviledges the whole as to the matter of Costs but they might grant a Consultation as to that part of the Suggestion which concerned the manner of Tithing but not for the rest which was granted by the whole Court and so both the Judgements were reversed which mark MArkham versus Mollineux Hill 1. Jac. Mollineux sued out an Original in the Common Pleas in an Action of Debt upon a Bond against Markham by the name of John Markham Alderman de D. and all the mean Processe are continued against him by the name of Alderman Markham he appeared and the Plaintiff declared against him by the name of Markham of D. Esquire and afterwards the parties were at Issue and it was found for the Plaintiff and Judgement entred and it was reversed by Writ of Error because it did not appear that that Markham was the same Markham against whom the Original was prosecuted and the Processe continued but it seemed rather that he was another person by reason of his severall Additions of Alderman and Esquire which mark OLiver versus Collins Pasch 6. Jacobi The Plaintiff brought an Action of Debt upon the Statute for not setting forth of Tithes and shews that he is Parson of the Parish Church of Little Lavar in Com. Essex and that the Defendant had so many Acres within the Parish of Little Lavor sowed with Wheat whereof the tenth severed from the ninth part came to eight and twenty pounds and shews that the Defendant at Little Lavor aforesaid took and carried away the Wheat without setting forth the Tithes contrary to the Statute by reason whereof he forfeited threescore Pounds and upon Nil debet pleaded it was found for the Plaintiff and moved in Arrest of Judgement first that the Statute was mis-recited for whereas the the Plaintiff declared that the 4. Novemb. 2 E. 6. it was inacted it was said that there was no such Statute for the Parliament commenced 1 E. 6. and continued by prorogation untill the 4. Novemb. 2 E. 6. and therefore the Plaintiff was mistaken in that but that Exception was not allowed for there were an hundred Presidents against it and in respect of the continual use in that form as the Plaintiff had declared the Court said that they would not alter it for that was to disturb all the Judgements that were ever given in that Court. And secondly it was objected that the matter was mis-tried and there ought to be a new Triall because the Venire facias was of Parva Lavar whereas by their pretence it ought to have been of the Parish of Little Lavar to which Yelverton made Answer that the Triall was well enough for by that Action no Tithe is demanded nor recovered but the Defendant is onely punished for his Contempt against the Statute in not setting forth his Tithe and the wrong done to the Plaintiff complained of is laid onely in the Village of Little Lavor and not in the Parish for all the places in the Declaration where the Parish is named are onely matter of Conveyance and inducement to the Action and not of the substance for the substance is onely that where the wrong and grievance is done to the Plaintiff and that arises onely in Parua Lavor which was granted by the whole Court upon a grand Debate at severall Dayes and Judgement was given for the Plaintiff and the like Judgement was given between Barnard and Costerdam in an Action upon the same Statute upon the last point for the Venn and this hath been twice adjudged but in Costerdams Case which concerned the Earl
Estcourt and Harrington 272 Earl of Rutlands Case 330 F. Forde versus Pomroy 9 Fetherstones Case 168 Flemming and Jales 280 Freeman against Baspoule 309 Foster against Jackson 311 G. Glover and Wendham 10 Gaudey against Newman 38 Gargrave against Gargrave 52 Gravesend Case 177 Goodyer and Ince 208 Gittins against Cowper 217 Grimes against Peacock 222 Godsalls Case 270 H. Hurrey against Boyer 8 Huntley against Cage 14 Hurrey against Bowyer 20 Hamond against Jethro 97 Hamond Strangis Case 102 Hill againstVpchurch 121 Hall against Stanley 124 Holcraft against French 137 Higgins against Piddle 149 Hare and Savill 273 Heyden against Smith 328 I. Jones against Boyer 27 Jennings against Audley 30 James versus Reade 47 Jacob against Sowgate 12â— Ireland against Smith 166 K. Kenrick against Pargiter and Phillips 60 Kemp and Phillip his Wife James and Blanch his Wife against Lawrere and Trallop and the Wife of Gunter 144 L. Linch against Porter 1 Legates Case 41 Lampit against Margeret Starkey 17â— Lawry against Aldred and Edmonds 183 M. Master Brothers and Governours of Trinity house againsi Boreman 13 Mallet against Mallet 133 Marstons Case 167 Manley against Jennings 176 Marsam against Hunter 209 Miller and Francis 277 Michelborn against Michelborn 296 Mors against Webbe 297 P. Parkers Case 7 Penns Case ibid. Priddle against Napper 25 Powis against Bowen 29 Parkers Case 37 Petty against Evans 40 Pyat against the Lady Saint-John 56 Portington against Rogers 65 Pits against Dowse 74 Petoes Case 75 Patrick against Lowre 101 Prowse against Worthing 103 Peto against Checy and Sherman and their Wives 128 Peacock against S George Reynel 151 Proctor against Johnson 212 Payne and Mutton 276 R. Robotham and Trevor 11 Reyner against Powell 42 76 Rowles against Mason 85 192 Robinsons Case 271 Rivit against Downe 279 Read against Fisher 297 Rutlage against Clarke 308 S. Symonds against Greene 16 Sir William Chanceyes Case 18 Sir John Watts 29 Sir Edward Ashfeild 48 Styles against Baxter 49 Sturgis against Deane 57 Sir Richard Bulkley against Owen Wood 100 Sir Ed. Puncheon against Legate 137 Sir Henry Rowles against Sir Robert Osborne and Margeret his Wife 169 Strobridge against Fortescue and Barret 190 Sammer and Force 208 Styles Case 216 Stydson against Glasse 223 Simson and Waters 272 Smallman against Powes 291 T. Tey against Cox 35 Tresham against Lambe 46 Trobervill against Brent 97 Tyrer against Littleton 187 The Lord Rich against Frank 202 Trinity Colledge Case 243 The Towne of Barwick 270 The Duke of Lenox Case 301 V. Vivion against Wilde 290 W. Wagginer and Wood 9 Westons Case 11 Wallop against the Bishop of Exeter and Murrey Clark 45 Wickenden against Thomas 58 Weeks against Bathurst 102 Water against the Deane and Chapter of Norwich 158 Warbrook and Griffin 254 Waggoner against Fish 278 Waggoner against Fish Chamberlaine of London 284 Y. Yates and Rowles 207 THE SECOND PART OF BROWNLOWE'S REPORTS Containing divers excellent Cases and Resolutions in Law Lynche against Porter THE Plaintiffe in Prohibition suggests that hee inhabited in London within the Diocesse of the Bishop of London and was cyted to appeare in the Court of the Arches and was out of the Diocesse of London without license of the Bishop of London against the Statute of 23. Henry 8. And upon the first motion the Court gave rule to the Defendant to shew cause why the Prohibition should not be granted and to heare the Civilians and to conferre with them concerning the practise and expounding of the Statute of 23. H. 8. Chap. 9. And at the day appointed three severall Civilians came into the Court and were heard according to the former Order and they say that they use to cyte any Inhabitant that inhabits in London to appeare and to make answer in the Arches originally for the mischief that the Statute of 23. H. 8. intends to prevent was that those which inhabite in Dioces remote from London should not be sued here without licence from the Ordinary but this mischiefe was not in this case And Doctor Martin saith that so it was used by the space of 427. years before the making of the Statute and then was complaint made thereof to the Pope and he was answered that it was the use that any man might be cyted to the Arches out of any Diocesse in England and also that the Arch-Bishop may hold his Consistory in any Diocesse within his Jurisdiction and Province And also that the Arch-Bishop hath concurrent Jurisdiction in the Diocess of every Bishop as well as the Arch-Deacon And then if the suit be first begun in the Court of the Arch-Bishop or the Bishop or Arch-Deacon it ought to be there determined where it had its beginning and shall not be inhibited And then it was objected by Cooke chief Justice that the Statute of 23. H. 8. was affirmed by Canon 94. And this sheweth the agreement of the Civilians with the said Statute And to this Doctor Martin answered that the said Canon was made in the vacancy of the Church of Canterbury for the Sea of the Arch-Bishoprick was then void and also he said that the Arch-Bishop of Canterbury prescribes to hold plea of all things and of all persons in England And the Pope hath no power to make Canons against the Law nor against any Custome or Prescription and for this it shall be void and that shall not bind the Arch-Bishop which is against the said prescription and also it seems to the Civilians that the exposition of the said Statute being the Ecclesiasticall Statute appointed to them And also it was said by them that this detracts from the Arch-Bishops Jurisdiction against the custome of the Realm and every Subject hath interest in that And also that the Bishop takes notice that they hold plea of the said cause and took no exception and that made a sufficient assent and amounted to a license in Law and so concluded that a prohibition ought not to be granted in this Case Coke cheife Justice saith that the Mischeife which the Statute of 23. H. 8. was not only to prevent the mischeife that those which inhabited in places remote from London should not be cyted to come to the Court of the Arch-Bishop but also to give to them other priviledges which by the Law they ought to have that is the Appeale that they loose by the beginning of the Suit in the Arches for they may appeal from the Ordinary after the suit begun here to the Arch-Bishop which benefit is lost if the suit be begun before the Arch-Bishop originally and for that the Inhabitants in London are as well within the Mischeife as the body of the Act of 23. H. 8. And also that at the making of the said Canon the Arch-Bishop of Canterbury which late was had the Jurisdiction of the same then committed unto him he then being Bishop of London So that upon the matter he was Arch-Bishop of Canterbury so that the unity of the Sea of
H. 6. 46. be it true or not and if it be not true the party may have his action against the officer which doth it and it was adjudged in Fullers Case in the Kings Bench that the high Commissioners may imprison and impose a fine for Heresie and Schisme and it was also resolved that Poligamy before the Statute of the 3. of King James was punishable before the high Commissioners for this was an heynous crime otherwise the Statute would not have made it Felony and he said that it was agreed in the time of the last Queen Elizabeth that the high Commissioners should not meddle with any thing but only those five that is Heresie Schisme Poligamy Incest and Recusancy and with no others and it was moved that a Writ De causione admittenda lieth for that they would not allow of the submissions And the Justices would consider of that and the Prisoner was remanded and it was adjourned And at an other day it was moved by Nicholls Sergeant that the high Commissioners supposed for that that the Statute of 5. El. gives authority to the Queen and to her heires and successors to grant Commission to Visite Reforme Redresse Order Correct and amend all Errours Heresies Schismes Abuses Offences Contempts and Enormities whatsoever and that the Commissioners may execute all the premises according to the Tenure and effect of the said Letters Patents that by that they might fine and imprison at their pleasure But Coke chiefe Justice said that it appeares by the preamble of the said Statute that after the Statute was in the â—5 yeare of the Raigne of King Henry the 8. by which the ancient Jurisdictions Authorities superiorities and Prehemenences were united or restored to the Crown and by meanes of the said Statute his Subjects were continually kept in good order and were dâ—sburthened of divers great and intollerable charges and exactions before that time unlawfully taken and exacted untill such time as the said Statute of 25. H. 8. was repealed by the Statute of 1. and 2. of Phillip and Mary which said Statute of 1. and 2 of Phillip and Mary should be repealed and void by which it appeares that the Kings Subjects were greviously burthened with grevious and intollerable charges and exactions and yet in this time of usurped power of the Pope doth not challenge that he might Commit or Imprison or Fine in any case but in the cases especially mentioned in the last Case aforesaid and for that all the usurped power was annexed to the Imperiall Crown the which he called the clause of annexing the second was the clause of deputation and this was the clause of the Statute by which the Queen hath power to grant Commission to such persons being naturall borne Subjects as her Majesty her Heires or Successors shall thinke fit to Exercise Use and Execute under her Majesty all manner of Jurisdictons Privelidges and Preheminences in any wise touching or concerning any spirituall Jurisdiction in all her Majesties Dominions and to Visit Reforme Redresse Order Correct and amend all such Errors Heresies Schismes Abuses Offences Contemps and Enormities whatsoever which by any manner spirituall or Ecclesiasticall power authority or Jurisdictions can or may be lawfull Reformed Ordered Redressed Corrected Restrained or amended and the third he calleth the clause of execution by which power and authority is given to the Commissioners to Exercise Use and execute all the premises according to the Tenure and effect of the said Letters Patents And it seems it was not the intention of the Statute to give any power to the Commissioners which was not given to the Queen by this Statute for the clause of deputation shall not be more ample then the clause of annextion and then the clause of execution refers to the first too clauses as it appears by the words of that that is to use and execute all the premises according to the said Letters Patents and the premises are expounded by the first clauses that is Errors Heresies Schismes c. And the said Letters Patents refer all Letters Patents before mentioned where the persons are appointed to be naturall borne Subjects and the materiall manner of Jurisdictions Priviledges and Preheminences Ecclesiasticall Siprituall and to Visit Reforme Order Redresse Correct and Amend all such Errors Heresies c. Which by any manner of spirituall or Ecclesiasticall Power Authority or Jurisdiction can or may lawfully be Reformed Redressed Ordered Corrected Restrained or Amended c. So that it cannot be intended that they may proceed in any other forme but only according to the Ecclesiasticall power and Jurisdiction and no other for otherwise they may Fine Imprison and ransome any man at their pleasures which was never intended by the makers of the said Statutes But only to transfer the Power and Authority which at that time was in the Bishops which then were Papistes to the high Comissioners the which the King may alter at his pleasure and so he cannot the Bishops for they are nor displaceable after their consecration Michaelmas 8. Jacobi 1610. in the Common Place A Man was cited before the High Commissioners for Poligamy which was agreed to be a cause examinable punishable there and upon examination of the Cause the Defendant was acquit and yet he was censured to pay costs though that he was acquitted of the Crime and this Court was moved for a Prohibition and it was denyed for they may hold plea of Principall and then Prohibition shall not be granted for the accessary and the Lord Coke said that they have just cause of lawfulnesse of punishing the offence though they have not just cause of the Deed and peradventure it was very suspitious that he was guilty and for that he hath only God for his revenger Parkers Case THree were cyted to appeare in the Court at Chester for Tenths and treble damages demanded and also in the Libell it is suggested that the Land is barren and very unfruitfull and Prohibition was awarded against those joyntly and yet it was agreed that they ought to count upon the Prohibition severally Penns Case PEnn Parson of Ryton in the County of Warwicke sued for Tithes in the Ecclesiasticall Court before the Ordinary and the Defendant here pleads that the same Parson was presented upon a Symonicall contract and for that his Presentation Admission and Institution were void by the Statute of 31. Eliz. And the Symony was for that that it was agreed between the said Parson and another man that was Brother to the Bishop of Lichfield and Coventry who was Patron of the same Church That if he should procure three severall grants of three severall next avoydances to them severally granted to surrender their said severall grants and procure the said Bishop to present him when the Church became void that being then full of an old Parson being deadly sick that he would make to him a lease of parcell of the Tithes of his Rectory And the brother
concurrent or immediate Jurisdiction to which appeal may be made and that the Arch-Bishop hath ordinary Jurisdiction in all the diocesse of his Province and this is the cause that he may visit but this Jurisdiction is bound and tied up to the Ordinary and when he will leave that at large then the Arch-Bishop may proceed as he is Arch-Bishop and the cause of request need not to be contained in the Instrument for when the power which was bound up is unbound and at large then he may proceed Doctor Talbot that the request is referred to three to the Bishop Dean and Arch-Deacon And the persons to whom the request is to be made are three The Arch-Bishop two Bishops three or superiour Judg and the Bishop and his Commissary are all one and request made by the Commissary shall be as good as request made by the Bishop himselfe Also that the President may transmit and make request to the Emperour as it appeares in the Booke of Justinian of the Lawes 2. Book So Baldus in reference made of inferiour Magistrates to Superiour doth defend that the Arch-Bishop is Judge of the whole Province yet is bound So Speculata in his Title of Relations of which relation shall be made So in the Councell of Antioche that the Metropolitan is mediate Judge in the first part of the Canon and for that relation shall be made to him Passonilis de officio c. disputes If the Arch-Bishop may have consistory in the Diocess of the Ordinary Hostiensis that the Ordinary may transmit a cause though the parties be unwilling Panormitan in capite pastoralis 8. Question 6. decretalls of the Canon Law Philippus Francus upon the decretalls of the Canon Law That the Arch-bishop cannot meddle in the Diocess of any Ordinary without his assent Dominicans upon the same Decretall And so he concludes that when the Ordinary makes a request to the Arch-bishop hee may meddle without the assent of the parties and the stranger when the parties assent And they agreed that generally the Arch-Deacon ought to transfer to the Bishop and so the Bishop to the Arch-bishop But they agreed also that here in England it was prescription and usage that every Arch-Deacon hath used to appeale immediately to the Arch-Bishop and so ought the Request within this statute to be made accordingly Also they agreed that if a man inhabite in one Diocess he hath cause to sue for Tithes in the same Diocess in which he inhabits and in another Diocess there he ought to sue in the Diocess where the Defendant did inhabite and not where the Tithes are payable nor where the Plaintiff inhabits and the Principall case was ordered accordingly Michaelmas 1611. 9. Jacobi in the Common Bench. Enby versus Walcott THe Defendant was sued before the Ordinary in the County of Lincoln for defamation And the Suit was begun before the last generall pardon ex officio and the Costs taxed after the time limited by the pardon and Prâ—hibition was granted in so much that all things promoted ex officio are discharged by the pardon and in so much as the principall was pardoned the Costs being but as accessory shall be also pardoned notwithstanding that they were taxed after the pardon Powis against Bowen UPon consideration had of Instructions given to the President and Councell of Wales it was resolved by all the Justices of this Court that the Councell there ought not to proceed upon English Bill which conteins title But the forme of that ought to be onely that the Plaintiff was in possession for three years and that the Defendants which ought to be alwayes more then one riotously and with force have entred upon him and so ought to be restored to his possession And in so much that the Bill containes Title in this case and that the Defendants have entered upon him and disseised him in forme of Assise and doth not say riotously and with force Prohibition was granted Butler against Thayer THe Lord Admirall granted a Commission under the Seale of the Admirall Court to Thayer for measuring of all the Corne which shall be transported from one Town or place to another within the Creeks which are within the first Bridges and to have so much for every bushell measuring and granted that if any resisted to arrest them and commit them till they had found sureties to appeare in the Admirall Court And at Milton and Raineham in Kent Thayer endevoured to put his Commission in execution and Butler resisted him and was for that arrested and sued in the Admirall Court and for stay of that prayed Prohibition it was granted in so much that the Admirall hath not power to meddle with the first Bridges for civill causes but only for Maymes and death of men but for causes made upon the high Sea where the Marriners have the better knowledg in the Common Law he cannot try that See the time of Edw. 1. Avowry 192. 8. Ed. 2. 45. Ed. 3. Stamford 51. 7. R. 2. Statham Trespass Sir John Watts CErtain goods of a Subjects of the King of Spains were forfeited upon the high Sea and after were brought here into England there sold to Sir John Wats and the goods were attached in the hands of Sir John Watts by Process out of the Admiralty and there a libell was exhibited against the goods remaining in the hands of Sir John Watts and Sir John Watts was not made party to the Suit And Sir John Watts prayed a Prohibition in so much that-they bought them in open Market And by this Suit in the Admirall Court the property will be drawn in question there where the Suite was prosecuted in the name of Awlenso de Valasco the Spanish Ambassador Legier here And Prohibition was granted Michael 1611. 9. Jacobi in the Common Bench. Jennings against Audley PRohibition was prayed to the Admirall and the Libell shewed to the Court which contained the Contract was made in the straits of Mallico within the Jurisdiction of the Admiralty and doth not say upon the deep Sea And it was agreed that in all eases where the Defendant admits the Jurisdiction of the Admirall Court by pleading there Prohibition shall not be granted if it do not appear by the Lybell that the act was made out of their Jurisdiction and that though that Sentence was given yet if that appears within the Libell Prohibition shall be granted Note that a man was sued before the Ordinary in the Diocesse of Norwich for infamous words and after sentence there given he appealed to the Arches and the first sentence being there affirmed he appealed to the Delegates and before that the proceedings were transmitted Prohibition was granted by this Court in so much that the offence was pardoned by generall pardon But this notwithstanding the Register transmitted the proceedings And after for his fees due for that hee exhibited a Bill in the Court of Requests and Prohibition was prayed in this Court for to stay his
proceedings there And it was granted in so much that the originall ground of the Suit that is the infamous words were pardoned by the generall pardon and for this all the proceedings were erroneous and their transmitting after And afterwards the Prohibition received willingly And for these causes Prohibition was granted to the Court of Requests Thomas Baxter against Thomas Hopes IN Prohibition the Plaintiff Suggests that within such a Town was such a custome that every Inhabitant which maintained a family and dairy for manuring his land and maintenance of his family have used of time out of memory c. to pay tythes of Corn growing upon his Farm in kind and by reason thereof have used to be discharged of after crop of the said land And also that they have used to pay tythe milk and tythe Calves in kind and by reason thereof have been discharged of tythe of yong and barren Beastes and the Plaintiff suggested further that he occupied a Farm and maintained a family and dairy for the manurance of that and maintenance of his family and hath paied his tythe Corn and milk and Calves in kinde And for that ought to be discharged of tythes for the after crop and for yong and barren Beastes and for the tenthes of which suit was begun in the Court Christian and upon demurrer joyned upon Prohibition the custome was debated whether it were good or no and it was moved first by Houghton Serjeant for the Defendant that the custome was not good insomuch that by that the Plaintiff was not to pay more then by the Law he ought for he ought to pay tythe Corne and milk and Calves in kind And this is no more then the Law compells him to do and this cannot be a consideration to discharge him of other things For all things which renue ought to pay tythes of Common Right as after pastute and barren Cattell and Corne and milk And all other things which renue if it be not good custome to the contrary which is grounded upon consideration and then to consider how much consideration shall be valuable in other Cases and what not And to that it appeares in 9. Ed. 4. 18. and 19 in Trespasse upon the Statute of 5. Rich. 2. The Defendant pleads accord that the Plaintiff entred into his land againe and agreed that that was not barr insomuch as agreement without satisfaction is not barr and entry into lands is no more then he might do without the agreement and for that it is not good for default of consideration so in 12. H. 7. 15. a. in trespass for goods taken the Defendant pleads arbitrement that is for that that the Defendant hath taken the goods of the Plaintiff and that he should deliver them to the Plaintiff in full satisfaction And agreed that this is no good award insomuch that this cannot be satisfaction for that that the goods were the proper goods of the Plaintiff And although that he hath his goods againe yet he is not satisfied for the taking But if the award had been that the Defendant should redeliver his goods and carry them to such a place certain at his own costs and charges then it had been good See 45. Ed. 3. accordingly So in an action upon the Case upon an Assumpsit made in consideration that the Plaintiff hath payd due debt is not good for this is no consideration and so in the principall Case the Prescription is not good insomuch that he hath not suggested more or other consideration which by the Law he ought to do But he agreed that if he had suggested that the Plaintiff had plowed and manured the land and disposed of the tythes of the Corn for the benefit of the Parson in other manner then the Law compelled him then the first prescription had been good and so he concluded and praied Judgement for the Defendant Hutton Serjeant for the Plaintiff in the Prohibition seems the contrary and that the Suggestion and Prescription and Custome Contained in that are good And to the Objection that it is no consideration that the Custome may be founded he intended that this is a ground upon immunity subsequent to the Consideration as of things which are not tythable as in the generall Case of things which are for the maintenance of the family for Plowing and Manuring of the land shall not pay tythes as in a suit for tythes for herbage suggestion that they were depastured by labouring Cattell which Plowed and Manured the Land of which the Parson had tythes or small Wood which are cut or imployed for the fencing of a Farm or fuell spent in the Farme shall not pay tythes insomuch that without that the Farme cannot be Manured nor the Famaly sustained And so by consequence the Parson shall not have any tythe Corn insomuch that no Corn will grow without manuring and also the Parson by those hath the more tyth Corn and so he hath consideration in that for the better that the Farme is fenced and manured the more tythe the Parson shall have So the Farmer may be discharged of tythes for Rakeings insomuch that he Mowes and Cocks the tythes for the Parson at his own costs and this is sufficient consideration And also he insisted upon the Statute of 2. Ed. 6. Which provides that tythes shall be payd in the same manner as they were payd for 40. yeares before and he cited one Jessopps case to be adjudged in Prohibition Pasche 36. Eliz. Upon suit in Court Christian for flocks and locks of Wooll And the Custome was alleaged that the owner had woond the tythe for the Parson and in consideration of that ought to be discharged of tythes of locks and flocks if they be not made by Covin to defraud the Parson and these were demanded by the name of wooll dispersed and 18. Eliz it was adjudged that tythes shall not be made for Brick and in Prohibition the suggestion was grounded upon the generall immunity and insomuch that it was made of land for which no tythes are to be payd insomuch that it doth not renue that for this cause tythes ought not to be payd for the Brick which is made of that and so of Mynes and so Loppings and Toppings and bark of Trees shall pay no tythes But are within the Statute of 40. Eliz. 5. of wood to be falne as it is resolved in Soby and Molyns case in the Commentaries And he agreed that for herbage the tenth gate or proffit of that ought to be payd if there be not a custome to the contrary but in the Principall case he intended that that was payd in the Corn and in that the Parson hath recompence and consideration as before and so he concludes and praies Judgment for the Plaintiff Dodrigde Serjeant of the King argued that the Custome is not good as it is here suggested for the consideration is of some things which ought to pay tythes in kind and so upon the matter is no sideration at all
for he intended that tythes should be due by divine right as due by the Manuring and Tillage of the occupier in whose soever hands that the land commeth if it be not in the hands of the Parson himselfe 30 H. 8. 43. Dyer 20. And for that a Parson shall have tythes against his own Feoffment 43. Ed. 3 13 a. 1. Coke Albanyes case 111. a. 32 H. 8. B. Tythes the 17 accordingly and unity of possession shall not extinguish them And also he intended there are two manner of persons which are discharged of paiment of tythes One Spirituall the other Temporall the spirituall in respect of their Order and the temporall in respect of Custome and Prescription and also by grant as it is agreed in the Arch-Bishop of Canterburies Case 2. Coke but this is in the case of a spirituall man before the Statute of 32 H. 8. which was capable of them in taking and that he might prescribe in not Tithing but a lay man cannot be discharged but for satisfaction and consideration for he cannot prescribe in not Tithing and for that in the case here the thing to be considered is if it be sufficient satisfaction and consideration and to that he intended that the payment of a duty that is Tyth Corn and Tyth Hay cannot be satisfaction consideration for another duty and this was the Reason of Piggot Hernes Case that the Lord of a Mannor in consideration of 20. Nobles yearly paid to the Parson prescribes to have the tithes of a Hamlet and in consideration of that the Lord himself and his Tenants were discharged of payment of Tithes but there the consideration and satisfaction was the cause which made the custome good see 2. Coke 45. a. And then he proceeded and examined the manner of the satisfaction in the principall case which is that the Plaintiff shall pay tyth Corne and Hay and nothing for Milk and Calves but by reason thereof shall be discharged as if he should say that because he payeth tythe Corne therefore he shall pay no tithe Milk and he intended that the nature of satisfaction is to give content to the party as if the prescription had been that the Plaintiff should pay so much Money and in consideration of that or that he shall make the tithe in Cocks or rake it or mow it at his owne charge this is a good prescription aed there are diverse presidents of that but no president is of this forme as the case here is for money shall be intended the greater value and more beneficiall for the Parson then his Tithes in kind and Money is the value of every thing and may give contentment to the party which receives it he cited Bookes of 9. Ed. 4. 19. and 12 H. 7. 15. and 2â— H 5. 2. a. To the same intent which were cited before by Haughton that is which agree in Arbitrement and the Plaintiff entred into his own Land or that the Defendant delivered to the Plaintiff his own goods which the Defendant had taken from him it is not good for it cannot give contentment to the party otherwise it is if it be that the Defendant shall carry them to another place and there shall deliver them for it cannot be satisfaction and contentment to the party and for that that here the Plaintiff hath not made more then the Law compells him and that it was his own duty and for that the prescription wants consideration it shall not be good and also by reason thereof it can be no good discharge for this cannot be satisfaction but he said it was adjudged Pasch 20 Jacobi between Hall and Aubery that Money was a good consideration and satisfaction for tithes and so he concluded and prayed judgment for the Defendant note that this cause was adjudged Hillary 8. Jacobi upon solemn argument by all the Judges with one voice that the Prescription was good Haughton Serjeant moved for a Prohibition for that the Suit was begun in the Admirall Court upon Charter party made beyond Sea upon the Land and Prohibition was granted though it be for a thing made in Paris or in another place beyond the sea if it be not upon the Main Sea but if the Defendant there admitts the Jurisdiction of the Court and suffers sentence then the Court will not upon a bare surmise grant a Prohibition after the admittance of the party himself if it be not in a thing which appeareth within the Libell that is that the Act was not made within the Jurisdiction of the Sea and to this difference all the Court agreed If a Court Baron divide a Debt of thirty pound in severall parcells under forty shillings and so proceeds in severall Actions Prohibition shall be granted see Fitzherberts Natura brevium and 19 H. 6. Hane was cited out of his Diocesse into the Arches and he pleaded to the Libell and sentence is given against him for costs and after that Prohibition was granted and upon that consultation was prayed for that that the Defendant was the party greeved and ought to have pleaded the Statute insomuch that the Statute was made for his benefit but if it appears by the Libell that the Court of Arches need not to have Jurisdiction then it seems that the Prohibition was well granted as in Sir Henry Vinors Case he began a suit in the high Commission Court for the not serving of a Chappell and the Court understanding that they had no Jurisdiction remitted the cause to the Ordinary and yet gave sentence against Sir Henry Vinor which was Plaintiff for Costs and for that he prayed a prohibition and it was granted to his Petition notwithstanding that he himself was the party who begun the suit there as it was remembred by Nicholls Serjeant A Woman sued in the spirituall Court for Defamation and the words were That thou mayest be an honest woman but thou playest too much with a thing c. And Prohibition was prayed insomuch that these words were not Actionable for in Spellmans reports Prohibition was granted for that they proceeded there for calling a Minister Knave Preist and also by these words a white Cloake is more fitter then a black cloake for him for action upon the case doth not lye for these words by any Law but the Prohibition was not granted Pasch 11. Jacobi Prohibition Tey against Cox PRohibition was prayed for that that one was cited out of his Diocesse before the Arch-Bishop of Canterbury as Keeper of the Spiritualties in time of the vacation of the Bishopprick and it was denyed but if he had beene to appeare before him as Metrapolitan otherwise it should have been insomuch that this is against the Statute of 23. H. 8. And also for his own Canon but in this case the Statute of 23 H. 8. And also their own Canon but in this case the ArchBishop hath done as he ought and for that the Prohibition was denyed see 17 Ed. 2. Fitz. Na. Bre. 822. and
Damages c. An Assise brought and the Grant was of the Herbage and Pannage c. and whether this were good or no some held it void for the incertainty of the Grant when it should begin Sir Edward Cook held the Grant good for if the King make a Lease for Life and granteth the Land without reciting the state to one for life this is a good Grant for Life of the Reversion to begin immediately after the Death of the Tenant for Life Trin. 7. Jacobi rotulo 35. An Assise brought for the Office of a Harald at the Funeral of the Earle of Exceter and the great Question was where the view should be made and it was alledged that it should be made in the place where he exercised his Office but the Court doubted of that but they were examined of the view made in the Abbey of Westminster being the place where the Funeral was performed and the Court were of opinion that in Dower where Tithes are demanded no view lies for of things that are invisible no view lies but the Tenant in such case shall be denied it SIr William Saint Andrew brought an Assise de Darrein Presentment against the Arch-bishop of York the Countess of Shrewsbury and F. H. for the Church of O. in the County of Nott. The Archbio p and H. appeared and the Countess did not appear and though the Countess made Default yet the Assise was not taken against her by Default but a re-summons was awarded against the Countess and the same Day given to the Arch-bishop and H. and a Habeas Corpora against the Recognisors And note the Tenants that appeared pleaded in abatement that a Writ of Quare impedit for the said Church was hanging in such a Court between the same parties and the Assise was brought afterwards and with this agrees the Register and it was adjudged a good Plea The Writ was returned in this manner Pleg de prosequend John Doo Richard Roo The within named Arch-bishop and Countess are attached and either of them is attached per Pleg H. S. N. J. And the within named H. hath nothing in the Sheriffs Bailywick by which he may be attached nor hath a Baily within his Liberty nor is therein found and the residue of the Execution c. and Judgement given that the Writ should abate and the like was in the Earle of Bedfords case where two Quare impedits were brought one after another and the last Writ abated J. Lovelace versus Baronissam Despencer R. Harvey Clericum Trin. 12. Jac. rotulo 74. de Darrien Presentment for the Church of M. And the said H. being solemnly exacted came not and the Sheriff made a Return that he was summoned by J. O. and W. C. and therefore the Assise was to be taken against him by Default but the said Baromsh by T. her Attourney faith the Assise ought not to be so taken and confesses the said J. was the person last presented but conveys a Title to her self of the Mannour to which the presentation belongs and that being so seised the Plaintiff in the Assise by usurpation presents the Clerk in the Count whereupon the Defendant brought a Quare impedit and hanging the Writ the Clerk in the Count dies and the Plaintiff presented the Clerk that made Default who by vertue of that presentation is yet Parson of the said Church by which she is seised of the Advowson as in her former Estate and so she saith that the Presentation of the said J. by the said L. made ought not to prejudice her and a Demurrer upon this Plea and that the Assise should remain to be taken c. for want of Recognisors and the Sheriff was commanded to distrain them c. and Judgement given that the Plea was good but quaere of the Declaration whether sufficient because it was not alleadged that he that presented was seised of the Advowson Pasch 8. Jac. rotulo 31. An Assise brought for the Office of Clock-keeper of and it was held that it must be an ancient Office and because they could not prove that it was an ancient Office the Plaintiff was non-suit and the Plaintiff shewed a Grant of the same in E. 6. time but that was held no ancient time Pasch 6. Jacobi It was held by the whole Court that an Assise of Sadler to the Queen would not lie being granted to one by the King but was held void by the whole Court for the King cannot make an Officer to the Queen and by the Patent no place was expressed where he should injoy and exercise his Office and take the Profits and therefore the Jury could not have the view and for that cause an Assise cannot be taken and if the King should grant the Office of Usher to his Son the Prince an Assise would not lie An Assise brought against Demetrius the Plaintiff was non-suit and Demetrius moved to have Cost and it was denied by the whole Court because an Assise is not within the words of the Statute Audita Quaerela BIrd versus Kirton Trin. 13. Jacobi rotulo 3118. An Audita Quaerela brought and the case was this Bird and Milles were bound to Kirton and Kirton makes a Bond to Milles in the summ of 100. l. that if Milles be not sued upon the first Bond then that shall be void and it was alleadged that Kirton did both sue Milles and Bird and that he had no notice of the second Bond that he might have pleaded it and so pretends that the second Bond should be a Defeasance of the first and Judgement was given for the Defendant BEck brought an Audita Quaerela and surmises the matter following that Boon Administrator of C. brought his Action of Debt upon an Obligation and before Judgement that Administration was revoked and Administration granted to another and notwithstanding the Revocation he procured Judgement and the second Administrator released and the rest brought an Audita Quaerela upon that Release and the Court would not grant a Supersedeas because the Revocation was but matter in fait for that Revocation was not under Seal and the first Administrator might appeal Cases in Law and Notes IF a Writ of Covenant be brought against two and if one acknowledge the Fine before one of the Justices and the other acknowledge by Dedimus or before another Justice that Fine cannot be proceeded upon these two acknowledgements by the opinion of the Court. A Writ of Covenant was brought against three men and their Wives and onely two men and their Wives acknowledged the Fine and the other Husband and Wife never acknowledged and the Fine was sued as a Fine acknowledged by all and it was desired the Fine might be amended and the Man and Wife that did not acknowledge might be put out but the Court would not grant it If I make a Lease for years reserving Rent during the Life of A. and B. if one of them die
cheife Justice and Williams Justice thought fit that he should not have a Prohibition for as well the reparations of the Church as the ornaments of that are meerely spirituall with which this Court hath nothing to do and Flemming said that such Tax is not any charge issuing out of Land as a rent but every person is taxed according to the value of the land but Yelverton and Fenner to the contrary that a Prohibition did lye for the same diversity which hath been conceived at the Barr and also they said that he which dwells in another Parish doth not intend to have benefit by the ornaments of the Church or for the Sextons wages and for that it was agreed by all by the cheif Justice Williams and the others that if Tax be made for the reparation of Seates of the Church that a forrainer shall not be taxed for that because he hath no benefit by them in particuler and the Court would advise Michaelmas 8. Jacobi in banco Regis HEnry Yelverton moved the Court for a Prohibition to the Admiralty Court and the case was there was a bargain made between two Merchants in France and for not performance of this bargain one libelled against the other in the Admiralty Court And upon the Libell it appeared that the bargain was made in Marcellis in France and so not upon the deep Sea and by consequence the Court of Admiralty had nothing to do with it and Flemming cheife Justice would not grant Prohibition for though the Admiralty Court hath nothing to doe with this matter yet insomuch as this Court cannot hold plea of that the contract being made in France no Prohibition but Yelverton and Williams Justices to the contrary for the bargain may be supposed to be made at Marcellis in Kent or Norfolke or other County within England and so tryable before us and it was said that there were many presidents to that purpose and day given to search for them Note upon a motion for a Prohibition that if a Parson contract with me by word for keeping back my owne tithes for 3. or 4. years this is a good bargain by way of Retayner and if he sue me for my Tithes in the Ecclesiasticall Court I shall have a Prohibition upon this Composition But if he grant to me the Tithes of another though it be but for a yeare this is not good unlesse it be by Deed see afterwards Westons Case A Merchant hath a Ship taken by a Spaniard being Enemy and a moneth after an English Merchant with a Ship called little Richard retakes it from the Spanyard and the owner of the Ship sueth for that in the Admiralty Court And Prohibition was granted because the Ship was gained by Battaile of an Enemy and neither the King nor the Admirall nor the parties to whom the property was before shall have that according to 7 Ed. 4. 14. See 2. and 3. Phillip and Mary Dyer 128. b. Michael 8. Jacobi 1610. in the Kings Bench. A Man sues an Executor for a Legacy in the Spirituall Court where the Executor becommeth bound by his deed obligatory to the party to pay that at a certain day befoâ—e which this suit was begun in the Spirituall Court and the Executor moved for a Prohibition and it was granted for the Legacy is extinct but by Williams if the Bond had been made to a stranger the Legacy is not extinct Fenner seemed that it was so Hillary 1610. 8. Jacobi in the Kings Bench. Robotham and Trevor THe Bishop of Landaff granted the Office of his Chancellor-ship to Doctor Trevor and one Griffin to be exercised by them either joyntly or severally and it was informed by Serjeant Nicols that Dr. Trevor for 350. l. released all his right in the said Office to Griffin so that Griffin was the sole Officer after died and that after that the Bishop granted the same Office to one Robotham being a Practitioner in the Civil Law for his life And that Doctor Trevor surmising that he himselfe was the sole Officer by survivor-ship made Doctor Lloyd his Substitute to execute the said Office for him and for that that he was disturbed by Robotham the said Doctor Trevor being Substitute to the Judge of the-Arches granted an Inhibition to inhibite the said Robotham for the executing of the said Office and the Libell contains That one Robotham hindered and disturbed Doctor Lloyd so that he could not execute the said Office And against this proceeding in the Arches a Prohibition was prayed and day was given to Doctor Trevor to shew cause for why it should not be granted And they urged that the Office was spirituall and for that the discussing of the Right of that appertaineth to the Ecclesiasticall Courts But all the Judges agreed That though the Office was Spirituall to the exercising of that yet to the Right it was Temporall and shall be tryed at the Common Law for the Party bath a Free-hold in this see 4. and 5. of Phil. and Mary Dyer 152. 9. Hunts Case for the Office of the Register in the Admiralty and an Assize brought for that and so the cheife Justice saith which was adjudged in the Kings Bench for the Office of the Register to the Bishop of Norwich between Skinner and Mynga which ought to be tryed at the Common Law And so Blackleeches Case as Warberton saith in this Court for the Office of Chancellor to the Bishop of Gloucester which was all one with the Principall case And they said that the Office of Chancellor is within the statute of Edw. 6. for buying of Offices And Warberton also cited the case of 22. H. 6. where action upon the case was maintained for not maintaining of a Chaplain of the Chamber in the private Chappel of the Plaintiff very well though it was spirituall for the Plaintiff hath inheritance in that But if it had been a parochial Church otherwise it shall be for the infiniteness of the Suits for then every Parishoner may have his action And so in manner of Tything the prescription is temporall and this is the cause which shall be tryed at the Common Law and Prohibition was granted according to the first Rule Hillary 8. Jacobi in the Common Bench. AN Attorney of the Kings Bench was sued in the Arches for a Legacy being Executor as it seems and it was urged that hee inhabited in the Diocess of Peterborough And for that that he was here remaining in London in the Tearm time he was sued here and upon that a Prohibition was prayed and it was granted accordingly For as the Lord Coke said Though that he were remaining here yet he was resident and dwelling within the Jurisdiction of the Bishop of Peterborough and he said that if one Lawyer cometh and remaineth during the Tearm in an Inne of Court or one Attorney in an Inne of Chancery but dwelleth in the Country in another Diocesse he shal not be sued in the Arches Master Brothers
41 Assis The case was this there was a custome that a Park hath paid two shillings a yeare and the sholder of every Deere which was killed for tithes and in consideration of that had been time out of minde c. Discharged of Tithes and now the Park is dis-parked and it was moved by Harris Serjeant that this dissolves the custome for when part of the custome is dissolved by the party himself this determines the residue for it is adjudged if the Land be discharged of tithes by reall Composition then if he sue for tithes in the spirituall Court prohibition by the common Law was granted without other suggestion but only that he sued there for Lay Fee and it was said that it was adjudged 5. Jacobi that where it was a custome that so many of the bucks shall be paid for tithes in such a park yeerly and after the park shall be disparked yet that remaines discharged of Tithes and the custome remaines and Coke cheif Justice seemed that tithes are due by divine right but not what part for if the tenth part be due dy divine right then all Customes are void Trinity 11. Jacobi 1612. in the common Bench. NOte by the Statute of 50. Edw. 3. If a Consultation be once duly granted no new Prohibition shall be afterwards granted upon the said Libell But if it be apparent matter that the first was not duely granted then a new Prohibition may be granted by the whole Court and with this agreed the book of Entries in the Title of Prohibition But this is to be intended to the Spirituall Judge and it seems that the Admirall is out of this Statute see 22. H. 7. Bushes Case NOte that it was agreed in this Case that if a Parsonage be impropriate and the Vicaridge be endowed and difference be between the Parson and the Vicar concerning the endowment that shall be tryed by the Ordinary for the persons and the cause also are spirituall And there the Vicar sues the Parson for Tythes and he suggests the manner of tything and prays a Prohibition and it was granted and after upon solemn argument Consultation was granted in so much that the manner of tytheing did not come in question but the Endowment of the Vicaridg only for that is the Elder Brother as the Lord Coke said and this was cyted to be adjudged by Coke Prohibition Agars Case AGar of Kingston upon the Thames was sued in the Ecclesiasticall Court for beating of his Wife and for calling her Whore and was sentenced by them to pay to his Wife three shillings a weeke for her Alimony and divers Fynes were imposed upon him for not performing of that and also provided that hee should enter into a Recognizance for performance of that and a Prohibition was granted and also a Habeas Corpus to deliver Agar out of Prison Michael 8. Jacobi Blackdens Case BLackden marryed one within age and after disagreed so that they might marry else-where and the first Wife had Issue by other Husbands and dyed and Blackden was sued in the Ecclesiasticall Court by an Informer supposing he had marryed a womon living his other Wife And Blackden proves there the disagreement by which he had sentence for him against the Informer and yet hee was taxed to give to the Informer twenty markes for costs which hee refused to pay and moved to have a Prohibition which was granted For it was injustice to allow Costs to one which had vexed him without cause and when they had given sentence against the Informer Parkers Case Michael 8. Jacobi PArker being a Parson of a Church was deprived by the High Commissioners for Drunkenness and moved for Prohibition but it was not granted and he was directed to have action for the Tythe and upon that the validity of the Sentence shall be drawn in question Doctor Conways Case Michael 8. Jacobi COnway and his Wife were sued before the High Commissioners that is to say the Wife for Adultery with Sir Michael Blunt and the Husband for connivency to that as a Wittall and they were sentenced there for that and costs taxed in July and after the general pardon came and pardoned all offences before the 9. day of November before and upon that the Doctor moved for Prohibition and had that because the offences were not enormious crimes and the Statute and the Commission upon that is to give power to them to proceed upon enormious crimes and to Fyne and Imprison for them Also resolved that the generall pardon hath discharged the Costs though that the Costs were taxed before the Pardon was in Print And this by the relation that hee had at the day before the Costs were taxed Cradocks Case Michael 7. Jacobi CRadock bought diverse things upon the body of the County which concerned the furnishing of a Ship as Cordage Powder and Shot and the party of whom they were bought sued Cradocke for the money in the Admirall Court and Prohibition was granted for the Statute of Richard 2. is that the Admirall shall not meddle with things made within the Realm but only of things made upon the Sea and that no Contract made upon the Land shall be held there And here the Contract was at St. Katherines stairs in the body of the County for it was said that St. Katherines is within London and the Major of London hath jurisdiction upon the Thames as farre as Wapping And if a Murther be committed upon the Thames this shall not be tryed by the Admirall and here Terry and Peacocks Case was cyted which is related in Binghams case in the 2. Reports and also in Sir Henry Constables Case in the 5. Reports and it was cyted to be adjudged that if a Contract be made at Roan in France that shall not be tryed in the Admirall Court for that it was made upon the Land and not upon the high Sea Pasche 8. Jacobi Regis Common Eench Gaudyes case with Doctor Newman THe Parishioners of the Parish of Alphage in Canterbury prescribed to have the Nomination and election of their Parish Clark and the Parson of the Parish by force of a Canon upon voidance of the place of the Parish Clark elected one to the Office the parishoners by force of their Custome elected Cundy the Parson supposing this election to be Irreguler for that it was against the Canon sued Cundy before Doctor Newman Chancellor of Canterbury and the said Cundy was by Sentence deprived of the Clark-ship of the Parish and the Clark of the Parish admitted Cundy moved for a Prohibition and had it granted by all the Court for it was held that one Parish Clark is a meer lay man and ought to be deprived by them that put him in and no others and if the Ecclesiasticall Court meddle with deprivation of the Parish Clark they incura Premunire and the Canon which willeth that the Parson shall have election of the Parish Clark is meerly void to take away the Custome that any Parish had to
REPORTS OF Diverse Choice CASES in LAW TAKEN By those late and most judicious Prothonotaries of the Common Pleas RICHARD BROWNLOW JOHN GOLDESBOROUGH Esq rs WITH DIRECTIONS HOW TO proceed in many Intricate Actions both Reall and Personall shewing the Nature of those Actions and the Practice in them excellently usefull for the avoyding of many Errours heretofore committed in the like Proceedings fit for all Lawyers Attorneys and Practisers of the Law Also a most Perfect and exact Table shewing Appositely the Contents of the whole Book Solon 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 LONDON Printed by Tho Roycroft for Matthew Walbancke at Grays-Inne Gate and Henry Twyford in Vine Court in the Middle Temple 1651. THE PUBLISHER TO THE READER THese Reports coming unto my hands under the Commendations of men of so much sufficiency in the knowledge of the Lawes I could doe no lesse then fear that it would prove too obvious a neglect of Common good to keepe them in the darke therefore here I present them to the World to the end that all men may take that benefit by them now being in Print which some few only have hitherto injoyed by private Copies And indeed I thinke I shall put it beyond dispute when I name the two worthy and late famous Prothonotaries M r. Brownlow M r. Goldesborough whose Observations they were that they will both profit and delight the Reader since there are contained under these heads viz. Actions upon the Case Covenant Account Assise Audita querela Debt upon almost all occasions Dower Ejectment Formedon Partition Quare Impedit Replevin Trespas Wast Many excellent conclusions as well of Law as of the manner of pleadings Demurrers Exceptions Essoins Errors and the qualities of many VVrits with other various and profitable Learning in which may be found the number of the Roll for so many as have had the luck of a full debate and definitive sentence And for the rest though there is no Judgment in them so as to determine what the Law is yet at least they will afford a very considerable compensation for the Readers pains by opening unto him such matters as are apt for Argumentation and may acquaint his Genius with the manner of Forensall Disputations from which benefit to detain you any longer will deserve a Censure therefore I remit you to the matter it self which I am confident the Printers faults excused will easily effect its owne praise beyond my Ability SPECIALL OBSERVATIONS AND RESOLUTIONS OF THE JUDGES OF THE COMMON PLEAS Vpon severall Actions upon the Case there depending and adjudged PEdley versus Langley Hill 14. Ja. rotulo the Plaintiff brought his Action for these words You are a Bastard for your Father and Mother were never married The Defendant pleads that the Plaintiff was a Bastard and justifies the words laid and it was held by the Court that this Issue should be tried by the Countrey and not by the Bishop as in other Cases SMayles one of the Attourneys c. versus Smith for these words he meaning the Plaintiff took corruptly five Marks of Brian Turnor being against his own Client for putting off and delaying an Assize against him and after a Verdict exception was taken against the Declaration for that the Plaintiff did not expresly alledge that at the time of speaking the words He was an Attourney but layd it that he had been an Attourney The Court held the words would bear Action MAle versus Ket Hill 14. Jac. rotulo 1506. for these words William Male did steal my Corn out of my Barn Judgement for the Plaintiff The Court held that an Action would lie for these words You are a Thief and have stollen a Cock which was but Petty Larceny COwte versus Gilbert Hill 10. Jac. rotulo 3176. Thou art a Thief and hast stollen a Tree Judgement that the Plaintiff should take nothing by his Writ The like Thou art a Thief and hast stollen my Maiden-head no Action HArding versus Bulman Hill 15. Jac. The Plaintiff declares that in such a Term he had brought an Action of Case against B. for scandalous words to which he pleaded not guilty and at that Triall gave in Evidence to the Jury to take away the Plaintiffe Credit and Reputation that the Plaintiff was a common Lyar and recorded in the Star-chamber for a common Lyar by reason whereof the Jury gave the Plaintiff but very small Damage to the Plaintiffs Damage of c. The Defendant pleads not guilty And it was moved in Arrest of Judgement that the Action would not lie And of that opinion the Court seemed to be BRidges one of the Attourneys versus Playdell for words You meaning the Plaintiff have caused this Boy meaning A. W. then present to perjure himself Judgement for the Plaintiff STone versus Roberts Mich. 15. Jac. rotulo 635. for these words Thou art a Witch and an Inchanter for thou hast bewitched Stronges Children no Action lies but if thou say Thou art a Witch and hast bewitched Children and that they are wasted and destroyed they are actionable SCarlet versus Stile Trin. 14. Jac. rotulo 541. for these words Thou didst steal a Sack and Curricomb and I will make thee produce it and thou didst steal my Fathers Wood and didst give it to a Whore The Defendant justifies that such a day the Goods were stollen and there was a common fame and report that the Defendant had stollen them and upon that report the Plaintiff did vehemently suspect that the Defendant had stollen them and thereof did inform a Justice of the Peace and complaining of the Defendant to the Justice and informing him of the Premises did speak the words before mentioned If a Felony be committed it is good cause to arrest one for Felony but not to speak words to defame one If there be two Issues in severall Counties in Trover and one is tried and Judgement and Execution of the Costs and Damages and afterwards the other Issue is tried and Costs thereupon the last is erronious as to the Costs Broccas Case Note Trover was brought against Husband and Wife for Goods which came to the hands of Husband and Wife the Conversion was alleadged to be by the Husband alone for the Wife could not convert And the Court held that the Action would not lie against the Wife MOse versus Canham Mich. 6. Jac. rotulo 508. The Plaintiff declares that one Levet was indebted in such a summ and for the payment thereof had delivered to the Plaintiff divers Goods of the said Levets the Defendant in consideration that the Plaintiff would deliver to the Defendant the said Goods promises to pay the Plaintiff the money due from Levet and exception was taken to the Declaration for that the certainty of the Goods were not expressed and for that the consideration was but collateral Another Exception for that the Plaintiff might grant the Goods over but the Court held the contrary And Judgement for the
Acres to the Plaintiff and that the Defendant made and erected one Ditch and Hedge by reason whereof the Plaintiff lost the benefit of his way and after Triall and Verdict for the Plaintiff it was moved in Arrest of Judgement because it did not appear in the Declaration to what Village the common way led to And it was held a good Exception and Judgement arrested but if it had been unto a common way there or in such a Village it had been good KEnt versus Prat Hill 7. Jac. rotulo 131. Action upon the Case the Plaintiff declares that Prat was Rector of the Church of S. And that Kent was lawfully possessed of the Parsonage-house and that there were divers strifes between the Plaintiff and Defendant for the said Rectory and that the said Prat in consideration that the said Kent would surrender the Parsonage-house and the Gleab-land which were then sowed by Kent he promised c. And after Triall it was moved in Arrest of Judgement that the Surrender was not a valuable consideration because it did not appear to the Court that Kent had any Estate but at will which is determinable at the will of the Lessor and so he surrendred nothing but if these words had been in the count viz. of the Demise of the said Prat For a term of divers years it had been good though the certainty of the years had not been expressed SMailes versus Belt uxorem Hill 1. Jac. rotulo 1372. Action upon the Case for words spoken by the Woman Videlicet Thou art a Theif and a mainsworn Theif and a Verdict for the Plaintiff and moved in Arrest of Judgement that the Action would not lie but Judgement was arrested because the Issue was Quod ipsi non sunt cul and it ought to have been that the Woman was not guilty YArdley Attourney versus Ellyll Mich. 11. Jac. rotulo 1252. Action upon the Case brought for these words Your Attourney meaning the Plaintiff is a bribing Knave and hath taken twenty pounds of you to cozen me the Plaintiff laid a Communication such a day and place by the Defendant with one B. which B. had before that time retained the Plaintiff to be his Attourney concerning the Plaintiff Hubbart and Nichols held the words actionable videlicet for the first word Bribing Knave and that the last words did not extenuate or weaken the former if the words touch him in his Profession the Action will lie for it is against the Oath of an Attourney Birtridge is an old perjured Knave and that is to be proved by a stake parting the Land between M. and C. One Judge for the Plaintiff and two for the Defendant COrnhill versus Cowler Trespass upon the Case brought against Baron Feme for words spoken by the Woman the Baron Feme plead Quod ipsi in nullo sunt cul de praemissis and the Jury finde that the Woman was guilty and Exception taken after Triall to the Issue and Verdict and they were both aided by the Statute of Ieofayles But another Exception was that the Action was laid in Suff. And the Addition in the Writ was A. C. de C. in Com. Essex and in the Declaration the Plaintiff alleadges that the words were spoken at C. in the County aforesaid which was in the County of Essex and so a Mistryall CHimery versus God Action upon the Case upon a promise to discharge and save harmless the Plaintiff against all manner of persons and shews a Suit for Tithes in Norwich Court and the Defendant replies that the Plaintiff was not damnified and the Plaintiff rejoyns that he was damnified to wit at S. aforesaid which was in the County of Suffolk where the Action was brought and the Court held the Cause was mis-tried because the Suit was in Norwich and ought to be tried in Norwich and not in Suffolk and these words Apud S. praedictam were idle TIllet versus Bruen for words Trin. 12. Iac. The Plaintiff shews a Suit in Colchester Court and a Triall there before the Bayliff and that the Plaintiff gave in Evidence his knowledge and the Defendant willing to defame the Plaintiff as if he had given false Evidence said of the Plaintiff Thou art as much forsworn meaning in the Evidence aforesaid by the Plaintiff upon his Oath in Form aforesaid given as God is true and moved in Arrest of Judgement that the Inuendo would not maintain the Action and so adjudged LAmpleigh versus Braithwaie Mich. 13. Iac. rotulo 712. Action upon the Case in which the Plaintiff sets forth that whereas the Defendant had feloniously killed a Man and after the Felony committed did earnestly request and solicit the Plaintiff that he would labor and indeavour to obtain from the King for the Defendant a Pardon for the Felony upon which the Plaintiff at the instance and request of the Defendant by all lawfull ways and means possible did often and by many days labor and indeavor to obtain c. Videlicet by riding and journeying at his own cost and charges from L. unto the Village of R. where the King then was and from thence back again to L. to obtain c. The Defendant afterwards at H. in confideration of the Premisses did assume and promise to give the Plaintiff an hundred pounds of lawfull money when he should be required and a Verdict for the Plaintiff and moved in Arrest of Judgement for that it did not appear that the Plaintiff had spoken to the King for a Pardon nor done any thing or obtained a Pardon and Judgement was given for the Plaintiff Wynch said the Promise was subsequent to the Request and good for although the Defendant had no good by it yet because the Plaintiff was at costs and labor and it was at the Defendants request sufficient to maintain the Action If I request one to do a thing for me and make no promise and after you let me know that you did such a thing for me and then I promise to discharge or pay you this is a good consideration although the Promise go not with the Request otherwise it is where a man doth me a curtesie without any request And Hobart took this difference between a consideration executed and executory for where Non assumpsit is pleaded to a consideration executed the Plaintiff needs onely to prove the Promise for where the consideration is executory the Defendant may take Issue as well for not performing the consideration executory as upon the Promise GLover versus Taylor Hill 13. Iac. rotulo 852. Action upon the Case for ill using a Horse so that the Horse died and the Defendant promised to re-deliver the Horse The Defendant pleads Non cul And after a Verdict it was moved in Arrest of Judgement because he did not plead Non assumpsit And it was held a good Issue MArshall versus Steward Mich. 13. Iac. rotulo 1134. Action upon the Case reciting the Statute of 1.
grounded upon a promise made in this manner Marry my Neice and when I come from London I will give you 100. l. and the Action was brought in this manner Videlicet in consideration that he would marry A. promised to pay the Plaintiff 100. l. after he returned from London when he was thereunto requested and for these words when he was thereunto requested the Action was maintainable HInch versus Heald Trin. 17. Jac. rotulo Action upon the case for these words Videlicet He is a Witch and hath bewitched me and the Court held the Action would not lie for he might bewitch him by fair words or fair looks GReen versus Harrington Trin. 17. Jac. routlo 953. The Plaintiff declares that the Defendant such a Day was indebted to the Plaintiff in 10. l. for Rent due to the Plaintiff for one year ended at Michaelmas then last past for divers Lands in H. demised to the Defendant by the Plaintiff the Defendant in consideration thereof promised to pay the Plaintiff the said 10. l. when he should be thereunto requested The Defendant pleads Non assumpsit and after Verdict given for the Plaintiff it was moved in Arrest of Judgement that there was no consideration to maintain the Action because an Action of Debt lay upon the first Contract being in the realty for upon an implied promise no Action will lie where it is in the realty except there be a special promise made upon a collateral cause Videlicet If the Plaintiff had threatned suit for the said 10. l. and the Defendant in consideration that he would forbear to sue promises to pay c. and the like for if a man be bound in a Bond to pay money and the Day past now an Action of the case will not lie for that money except there be a collateral promise and so in the like cases and Judgement was given against the Plaintiff Michaelmas 17. Jac. It was adjudged in the Kings Bench in an Action upon the case Videlicet whereas the Defendant was indebted to the Plaintiff in 10. l. without expressing the cause for which the Debt grew due the Defendant in consideration that the Plaintiff at the special instance and request of the Defendant then and there had given Day to the Defendant untill a time to come to pay the money the Defendant promised to pay the money that the Action was maintainable without expressing the cause for which the Debt was Hill 17. Jac. rotulo 2722. Action of the case brought for these words Thou art a perjured Knave and I will make thee wear Papers for it the Defendant justifies the words and shews that the Plaintff was a Church-warden and took his Oath to exercise that Office and whereas one Article made was that he should present whether the Church-yard was repaired or no and he knowing it did not present it Action of the case brought for these words Thou art a scurvy perjured Knave the Action will lie WIlson versus Sheriffs of London Hill 17. Jac. rotulo 3069. The Plaintiffs declare upon an escape made upon a Capias ad respondendum after the Defendant was arrested the Defendant pleads a Custome in London that the Maior and Sheriffs of London have used to inlarge Prisoners that were arrested in coming and returning from their Courts having Causes there depending and set forth a Plaint in London against the Defendant and that he was arrested and appeared and pleaded to Issue and as he was coming to the Court to defend that Action he was arrested as is supposed in the Action upon the case brought against the Sheriffs and shew that he was brought to the Court and inlarged by the Court and the Court held that if a man were arrested in the face of the Court the Court might discharge him otherwise not PAin versus Newlin Mich. 16. Jac. rotulo 3042. Action upon the case brought upon a promise and Judgement by Nihil dicit and at the return of the Writ to inquire the Defendant moved in Arrest of Judgement and shewed that the Day of the promise was supposed in the inquiry to be Anno Domini 1614. And in the Declaration it was made 1617. and for that variance Judgement was stayed BElcher versus Hudson Hill 6. Iac. rotulo 132. The Plaintiff declares that in consideration that the Plaintiff at the request of the Defendant would marry one T. M. his familiar Freind the Defendant promised to pay the Plaintiff yearly after the Decease of the said T. M. 40. s. for her maintenance and the Plaintiff averrs the Marriage and that she survived The Defendant pleads that the said T. M. in his life time after the Marriage c. did release to the Defendant all Actions as well real as personal and all Demands and Challenges whatsoever from the beginning of the World unto the Date thereof to which Plea the Plaintiff demurrs and adjudged a naughty Plea BOx an Attourney against Barnaby Action upon the case for these words George Box is a common maintainer of suits and a Champertor and a Plague of God consume him and I hope to see his Body rot upon the Earth like the Carkase of a Dog and I will have him thrown over the Bar next Term and I will give a Beech to make a Gallows to hang him and Judgement given for the Plaintiff for this word Champertor and no other Trin. 14. Iac. Action upon the case for these words She is an arrant Whore and had two Bastards in Ireland and Judgement by the whole Court that the words would not bear an Action YOrk versus Cecill Mich. 14. Iac. Action upon the case brought by A. Tanner for these words Thou art a bankrupt Knave and the Court held that the Action would not lie but Quaere Skaif versus Nelson Mich. 12. Iac. rotulo 1106. Action upon the case brought for words against Husband and Wife spoken by the Wife and Judgement was entered for the Plaintiff and in entering of the Judgement it was made Et praedicta E. being the Woman in misericordia which was naught for it should have been both the Husband and Wife in misericordia and after the Record was certified by Writ of Error Serjeant Richardson moved that it might be amended because the Judgement Papers were right and so it was ordered to be amended according SMails an Attourney versus Moor Hill Iac. rotulo 753. Action upon the case for the words He is a forging Knave and the Court held that the words were actionable for he alleadged in his Declaration that he was an Attourney of the Common Pleas and so being touched in his Profession the words would bear an Action and if a man said of a Bishop that he was a Papist the Action would lie because Religion is his Profession and so he is defamed STeward versus Bishop Trin. 14. Iac. rotulo 769. Action upon the case for these words James Steward meaning the Plaintiff is in
upon the Summons pone or Distress the Outlary lies the Process is returnable from fifteen Dayes to 15 Dayes an Essoin lies In this Action there are two Judgements the first Judgement is that the Defendant shall account because he hath not accounted before in this first Judgement the Plaintiff shall not recover Costs or Damages but a Capias ad computand shall issue and if a Non est inventus shall be returned thereupon then an Exigent and when the Defendant by the rigor of the Law is imprisoned yet the Court doth in favour of the Defendant take Bail for he shall account before Auditors which the Court shall appoint which shall be the Officers of the Court to audit the Account and he shall appear from day to day before the Auditors at every day and place assigned by the Auditors untill the Account shall be determined and before the Auditors the Plaintiff or Defendant may joyn Issue or demurr upon the Plea pleaded before the Auditors and if any of the parties shall make Default and shall not appear then if after Appearance the Defendant shall not plead or if he shall joyn Issue or joyn in a Demurrer the Auditors shall certifie that to the Court and the Court shall proceed to the matter certified by triall of the Issue if it be joyned or by arguing the Demurrer as the cause shall require and if the Plaintiff shall make Default or shall not prosecute or if the Defendant shall not answer they may commit him to the Fleet and if Verdict pass for the Plaintiff Costs and Damages shall be recovered by reason of the inter-pleadings and the Plaintiff shall recover his Goods or Moneys demanded with his Costs and Damages and a Fisa or Elegit or casa shall be awarded and if a Non est inventus be returned then an Outlary after Judgement An account against a Bailiff of Lands shall be brought in the County where the Lands lie In every case in account where an Attachment may be returned an Essoyn lies Where the Defendant is charged to account for Moneys received from the hands of the Plaintiff the Defendant may wage his Law and likewise for Goods delivered to be sold but it is otherwise where the Receit is by the hands of a Testator or of any other then the Plaintiff That after a year and a day after Judgement given every Action shall be revived by Scire facias which is given by the Statute for all Actions at Law if the Plaintiff shall not obtain his Execution within a year and a day he shall be driven to bring a new Action Or if a Defendant be charged as Receiver by Indenture he shall not be admitted to plead that he was not a Receiver If the Plaintiff die before the second Judgement the Writ shall abate and no Scire facias lies for the Executor if the Defendant die before the second Judgement If two be adjudged to account and a Ca. exfa. issue and one appear and the other be outlawed he that appears shall account alone for that the Plaintiffs Process is determined against the other and so if one die the other shall account alone and if one be adjudged to account and will not he shall be committed to the Fleet. That if I deliver Goods to one to the value of 100. l. to traffique with for my use and he sels them for 10. l. I have no remedy but if my Bailiff buy a thing for 10. l. which is not worth it he shall not be allowed it Account lies not before a Sheriff for that he can assigne no Auditors If two be joyntly possest of Goods one of the two deliver the Goods for Merchandise he onely shall bring the Action An Account lies not against an Executor or Infant An Account lies not for a Park of Deer Matter that is in discharge of an Account shall not be pleaded in Barr of the Action for the Judges are Judges of the Action and not of the Account If Money be delivered to render an Account an Account lies but if it was delivered to keep untill the Plaintiff shall require Account doth not lie but Detinue If the Plaintiff account upon Witness of the Receit the Defendant shall not wage his Law If an Account shall be brought for Goods in the Declaration the Plaintiff declares that they were in his house whereas indeed they were not it is good HArrington versus Dean Hill 10. Jac. rotulo 3230. Action of Account render brought against the Defendant for the Receit of Money by the hands of one Rotheram for 200. l. The Defendant pleads that he was not a Receiver for to render an Account the Jury finde it specially that Rotheram was indebted to the Plaintiff in 200. l. and the Plaintiff required the Defendant to receive the said 200. l. and the Defendant required Rotheram to pay the 200. l. and Rotheram upon Request to him made desires the Defendant to borrow of any person 200. l. and to pay the Plaintiff and finde that the Defendant did borrow 200. l. of one Stanhop to pay the Plaintiff and Rotheram became bound to Stanhop for the payment of the said 200. l. and that the Defendant appointed his Wife to pay the Money to the Plaintiff and if upon the whole matter c. and Judgement was given that the Defendant was a Receiver THe Earle of Cumberland against Hilton The Clerk that entred the Cause had omitted the Charge which was for 400. l. and it was omitted in the Roll and Nisi prius and after a Verdict Excepon taken and amended by the Court. Assise IN an Assise Trin. 29. Jacobi rotulo 27. brought against Thacker and Elmer the Defendants come and say that there was no Tenants of the Tenements put to the view of the Recognisors of the Assise aforesaid nor at the time of purchasing the Writ to wit such a Day nor any time after and this they were ready to verifie and pray Judgement and if so then they say that they have done no injury or Disseisin of the Tenements with the appurtenances to the said W. T. and put themselves upon the Assise and the said W. T. doth so likewise therefore the Assise was taken between them and thereupon the Recognisors of the Assise say that the said E. E. at the purchasing of the original Writ of the Assise Videlicet such a Day were Tenants of the Tenement aforefaid with the appurtenances as of his Free-hold and that the said W. T. was seised of the Tenements aforesaid with the appurtenances in his Demesne as of Fee untill the said E. did unjustly and without judgement disseise the said VV. but not by force and armes and assess Damages to 12. d. and for Costs 6. d. and Judgement given that the said VV. should recover his Seisin of the Tenements aforesaid against the said E. by the view of the Recognisors of the Assise and his
that is naught for it is a several Lease of their Moities and you must declare Quod cum one of them demised one moity and the other the other moity and good If a Tenant in Socage hath Issue and die his Issue being under the age of 14. years the next Freind of the Heir to whom the Inheritance cannot descend shall have the Guard of the Land untill the Heir come to the age of 14. years and he is called Guardion in Socage and in pleading a Lease for Life you are never to alleadge the place where the Lease was made because it passeth by Livery which was executed upon the Land He that pleads a Demise ought to shew that the Lessee entred and he that pleads a Descent ought to shew that he entred and an Exchange is a good Plea in Bar but it shall never be adjudged a good Exchange except this word Escambium be used in the Charter of Exchange HOpkins versus Radford A Defendant shall take no benefit of his own wrong In Sir James Harringtons case the Original was returned Quinque Pasch and the issue joyned that day and the Venire facias returned that day and held naught by the Court upon the first motion A future Lease cannot be surrendred but drowned For things in Action a Deed of Gift is void as Debts without Specialty although he say Goods Chattels and Specialties but for other Debts by Specialty and Goods it is good and for the Debts in Action after the Death of the Party Administration is to be granted and the Administrator is to have the Goods RAiner versus Mortimer One had Judgement upon a Scire facias to have Execution and a Capias ad satisfaciendum returnable 15. Martini and that Writ was returned Album Breve and a Testatum thereupon and the Defendant taken and this matter was moved to the Court and a Supersedeas prayed that the Testatum issued out erroneously because the Capias was not returned and it was granted by the whole Court because the Capias was not returned One seised in Fee may bargain and sell grant and demise Land to others and their Heirs to the use of one for years because he hath a Fee-simple but Lessee for years cannot bargain and sell his Lease to the use of one for years If a Marriage is intended between two men and one of them in consideration that the other hath upon the Marriage assured Land to his Son he doth assume to pay to my Son such a Summ immediately after the Marriage if the Money be not paid the Son must have the Action and not the Father MIch 5. Jacobi 61. One Jury-man appear in Court and when he came to the Barr to be sworn he informed the Court that he was eighty years old and prayed to be dischargâ—d and the Court could not grant it nor pass him by and swear others without committing Error except the Parties would consent for it is Error to skip a Juror who is returned if he appear and therefore the Juror was drawn by the consent of the Parties TRin. 6. Jacobi Upon a Levari facias out of a Court Baron Goods cannot be sold without a Custome to sell the Goods and if Goods be attached by Pone out of a Court Baron the Defendant shall not lose his Cattle otherwise it is if it be a Process out of the Common Pleas then the Defendant loseth his Cattle for not appearing if you lay that you have a Court time out of minde to be held before a Steward you must shew what Pleas you have used to have Conusance of A Sheriff returned but 21. onely upon a Venire facias and at the Triall ten onely appeared and a Decem tales was awarded and tried and Verdict for the Plaintiff and this matter was moved in Arrest of Judgement for that the Sheriff had returned but 21. and the Court were of opinion that if 12. of them had appeared that it had been good notwithstanding but because 10. onely appeared of the principal therefore it was naught and Judgement arrested for that cause If a Juror be sworn of the principal and the Jury remain when the Jury comes again he shall be sworn again TRin. 6. Jac. rotulo 251. Dunnall versus Giles A special Verdict and the Question was a man being possessed of a terme devises the whole terme to A. for Life and if he dies within the terme to B. during the minority of C. and that C. when he comes to full age shall have the Remainder of the terme and held a good Devise To devise Land or Terme or Lease all one it is an Executory Devise If one surrender Land to the use of an Estranger that is to resty the use in Reversion for the Land is in him immediately If a man hath a Rent in esse you cannot grant that in Reversion after your Death but if I surrender to the use of one after my Decease is not good by his opinion of Warburton and Daniel If the Sheriff shall by vertue of a Fieri facias levy the Debt and Damages of a man and make a Return that the said Goods remain in his hands for want of Buyers the Property remains still in the Defendant although the Sheriff hath Possession of the Goods A Sheriff may sell Goods levied upon a Fieri facias out of his County In Watermans case the Issue was whether a Copy-holder in one Town had Common in Land lying in another Town and the Plaintiff shews that he is Lord of the Hundred of C. within which Hundred one of the Villages lie and prayes a Venire facias of the Town next adjoyning to the said Hundred and it was granted and tried and Exception to the Triall for that the Venire was not of both Villages An Alien born being no free Denizen may defend and bring a Writ of Error and it is no Plea to say that he is an Alien born Note by the Common Law the Lord of the Mannour may come and take away a Tree cut down upon the Copy-hold Land by his Copy-holder without laying a special Custome for it If there be an unlawfull Marriage as the Brother doth marry his Sister and they have Issue and one of them dieth before any Divorce had between them now after the Death of one of them the Issue cannot be bastarded as in Cordies case 39 E. 43. 22 E. 4. After a general Imparlance one cannot plead an Outlary in Barr to an Action of Trespass or Case but it must be pleaded in abatement except he be outlawed after the last Continuance for you shall plead nothing in Barr but what goeth to the pit of the Action now the Damages in Trespass or Case are not forfeited by Outlary as Debt because of the incertainty To the Owner of the Soil on both sides of the way of common right belong the Trees that grow in the Lane whether
certain Day specified in the Condition The Defendant pleads that the Plaintiff at the Day of Payment accepts of another Bond for the Payment of the said Money in satisfaction of the said 52. l. 11. s. and upon a Demurrer held to be a naughty Plea for one Bond cannot overthrow another LEa versus Pain Hill 14. Jacobi rotulo 953. An Action of Debt brought upon an Obligation with a Condition to perform an Award the Defendant pleads that the Arbitrators made no Award The Plaintiff by way of Replication sets forth an Award that the Arbitrators did arbitrate of all matters untill the Date of the Award which was a Moneth longer then the Submission and so pretends they exceeded their Authority The words were for all causes before the Date of the Award Another Exception was because the Arbitrators awarded that the Defendant should pay the Plaintiff such a Day of April and doth not say what year or next following and the Court held that good enough because the second Day of Payment was made to be such a Day and such a year and it was held good enough for if any new matters did arise between the Submission and Award or c. the Defendant ought to shew it Another Exception was that it was not said that the Award was made between the Parties but it shall be intended to be made between the Parties because the Award was made de super praemissis and therefore it shall be implied that it was made but of such things as they had power to deal in The Court was of opinion that the Award being de super praemissis the Court shall not say but that this was a cause submitted and except it had been discovered by pleading that there was a new cause since the Date of the Award which was made known to the Wardsmen the Court is not to take notice thereof SCot Executor versus Herbert The Plaintiff in his Declaration sayes the Testator in his life-time was possessed of Land for a terme of years and so possessed grants part of his terme to an Estranger reserving Rent and he grants his Estate to the Defendant And that the Testator died possessed of the Reversion of the terme and because the Rent was behinde the Executor brings his Action of Debt for the Rent and the Declaration was held naught for that it did not appear that he that made the first Demise was seised in Fee or in any other Estate by which he could make a Lease NOrris and Trussell Wardens of the Society of Weavers in the Town of Newbury in the County of Berks versus J. Scapes Pasch 14. Jac. rotulo 907. An Action of Debt brought and the Plaintiffs declare that Queen Elizabeth had incorporated them by such a name and given them Power to make by-laws for the better governing their Corporation c. and further shew that they made an Order which was confirmed by the Justices of Assise according to the Statute of 19 H. 7. and for the Breach of such Order brought their Action the Defendant pleaded that he owed them nothing and tried and a Verdict for the Plaintiffs and Hutton Serjeant moved in Arrest of Judgement and took three Exceptions the first because the Constitution was against Law to restrain one to exercise a lawfull Trade The second the Constitution was that the Offender should forfeit such a summ and it did not appear to whom this Forfeiture should go Thirdly the Plaintiff shews in his Count that the Queen by her Letters Patents had appointed A. B. C. to be Wardens for one year and shews not which those that brought the Action were elected which ought to be to intitle them to that Action It was against sense to barr all their own Apprentices it doth not appear how many Wardens should be and they do not intitle them to the Action by the Corporation the Law is altered and Judgement was given for the Defendant BRet versus Averder Mich. 29. 30. Eliz. Debt brought upon an Obligation to perform an Arbitrement the Defendant confesses the Arbitrement but pleads in Barr that the Plaintiff did not require him to make Payment and to that Plea the Plaintiff demurrs and it was adjudged no Plea for the Defendant at his perill ought to make Payment and the Plaiutiff ought not to make a Request HAles versus Bell Trin. 39. Eliz. rotulo 1974. The Plaintiff brought an Action of Dèbt upon an Obligation with a Condition for the Payment of 40. l. within fourteen Dayes next after the return of one Russell into England from the City of Venice and then the Obligation should be void the Defendant pleads in Barr that the said Russell was not at Venice upon which Plea the Plaintiff demurrs and adjudged a naughty Plea for where part is to be done within the Realm and part out of the Realm the Plea ought to be triable within the Realm GArret versus Harrison Executor Trin. 40. Eliz. rotulo 1651. To an Action of Debt upon a Bond brought against him as Executor the Defendant pleads six Judgements in Barr the Plaintiff replies that they were by fraud and covin and the Jury found for the Plaintiff that two of the six were by covin and Williams moved in Arrest of Judgement because the Jury ought to have found all but Glanvile said that if any part of the Plea be insufficient defective or false the Issue shall be found against you for your Plea is one intire thing and he said that the Plaintiff should have taken Issue upon one onely as in an Obligation with diverse things in the Condition Walmsley held that by the Plea the Defendant had confessed implicatively that you have sufficient to satisfie those six Judgements and no more So that if any part be found against you this is Assets and Judgement was given accordingly for the Plaintiff GReen versus Wilcox Executor To an Action upon an Obligation brought against the Defendant as Executor he pleads that the Testator was obliged to A. in 20. l. which remained due to him at his Death and that the said A. recorded against him in the Common Pleas and averres that it was a true Debt and the persons and matters to be the same and that he had no Assetts beyond that and the Plaintiff replies that the said Recovery was had by fraud and covin between them to defraud him of his Debt to which Plea the Defendant demurrs specially because he had in his Plea averred it was a true and just Debt so that it could not be by covin Trin. 44. Eliz. It was adjudged for Law by the whole Court that if a Fieri facias be directed and delivered to the Sheriff he may not break the outer Door of the House and enter and do Execution but if the outer Door be open then he may enter by that and then he may and ought to break the Door of an Entry or Chamber which is locked and break
that he had Assets at the Day of the Writ purchased and it had been found for the Plaintiff now the Plea is made good If an Action of Debt be brought against two Executors and one of them onely appear and confess the Action the Judgement shall be against both of them of the Goods of the Testators in the hands of all the Executors and the Damages of him that appeared onely TRin. 16. Jac. rotulo 988. Houldsworth versus Barker An Action of Debt brought upon a Bill the Defendant pleads the Bill was delivered to the Plaintiff upon a Condition not performed and it was held a naughty Plea by the whole Court HIll 13. Jacobi rotulo 842. Harrison al. at the Suit of Fleet. An Action of Debt brought for 32. l. and the Plaintiff counts upon an Emisset Harrison pleads that he and the other do not detain from the Plaintiff the said 32. l. nor any Penny thereof and the other pleads to Issue and a special Entry made that the Issue should remain untill the said Harrison had perfected his Law or made Default and he at the Day did wage his Law and Judgement was that the Plaintiff should take nothing by his Writ PAsch 16. Jac. rotulo 1200. Rayson versus Winder An Action of Debt brought upon an Obligation with a Condition to perform an Award which was good in part and void in part and the Breach assigned upon the good part and the Award was to pay Money but no time of Payment afterwards it was demanded the Award is good GAsington versus Burcher Knight Turner Jones and Bowden for 1800. l. Burcher was outlawed Turner and Jones appeared by Supersedeas and Bawden appeared by another Attorney and the Plaintiff declared against them three that appeared upon an Account Turner offered to wage his Law and the others plead Nil debent per patriam and the Court was moved pretending that Turner shal not be admitted to wage his Law because the Defendants should not sever in Plea but the Court upon sight of divers Presidents were of another opinion although it was urged that Turner Jones joyned in a Supersedeas and therefore pretend that Turner should not sever in Plea from Jones that pleaded Nil debet per patriam but that Exception was disallowed for although two appear by Supersedeas yet they may vary in Plea MIch 16. Jac. rotulo 581. and the Imparlance entred 16. Jac. rotulo 1727. An Action of Debt brought by Lee versus Arrowsmith upon an Emisset for divers Parcels and upon an Account and the Parcels and Account amounted to the summ of 300. l. but in the Imparlance Roll the Parcels and summ accounted for did not amount to 300. l. by 6. l. And this variance was moved in Arrest of Judgement after a Verdict but the Court were of opinion that it was amendable because Ball the Attorney made Oath that he commanded his Clerk to summ the Account for 6. l. to maintain his Writ and therefore the Roll was amended HIll 36. Eliz. rotulo 1908. Action of Debt brought by Gage versus Gilbert upon an Obligation for 500. l. bearing Date first of February Anno 25. Eliz. The Defendant pleads a general Release made to him by the Plaintiff bearing Date after the making of the Bond of all Dues and Demands whatsoever except an Award made between the Plaintiff and one G. W. why R. R. then dead and one Obligation of 500. l. for performance of the said Award bearing Date 29. April 25. Eliz. and whether these words bearing Date 29. April shall have reference to the Arbitrement or Bond was the Question upon a Demurrer upon the Replication in which the Plaintiff shewed the special matter that the Award was made the 29. April and that the Bond was made the said first of February and it was adjudged that these words bearing Date should have reference to the Award and not to the Bond. And if the Heir pleads Ciens per discent besides one Acre if the Plaintiff please he may have Execution of that Acre or if the Plaintiff plead that he hath Assets beyond that Acre and it be found that he hath ten Acres more the Plaintiff shall have Execution of the Land onely and not of his person as it is where the Heir pleads that he hath nothing by Discent generally and it is found against him that Land and all other his Land which he hath and his Body are liable to the Judgement by a Capias ad satisfaciend Fieri facias or Elegit If a man be retained in London to serve beyond Sea he may have his Action for his Wages in England in any County And the like of an Obligation bearing Date at Roan in France it may be sued in England alleadging the place to be in such a County where he brings his Action And note that Debt may be brought in the Common Pleas without Original against any Officer or Minister of the said Court by Bill exhibited to the Court but no Process of Outlary lies upon that and the Judgement upon that is that the Plaintiff shall recover his Debt and Costs and shall have an Attachment ad satisfaciendum but no Exigont for because it is not by Original and all the Process by Bill shall be returnable at a Day certain but no Bill lies against a Serjeant at Law And note that the Judges Serjeants and Officers Clerks Attorneys and Ministers of the Court may have an Attachment of Priviledge out of the said Court without an Original to arrest any to them indebted or for any personal cause to proceed upon it as if it were by Original but no Process of Outlary lies thereupon and such Process of Attachment shall be returnable at a Day certain and not at the common Return and they may be returned from Day to Day If a man be bound to perform an Award of Arbitrators and they make an Award accordingly that one shall pay Money he may have his Action of Debt for the Money and declare upon the Award and afterward may have another Action upon the Obligation for not performing the Award by the opinion of the whole Court Mich. 5. Caroli An Action of Debt brought by an Executor the Defendant pleads an Outlary in the person of the Executor and demands Judgement if he ought to answer his Writ the Plaintiff demurrs in Law to that Plea and Judgement was given that the Defendant should answer over WOlly versus B. and his Wife Trin. 37. Eliz. rotulo 1306. An Action of Debt brought by Husband and Wife as Executrix the Defendant pleads in Barr an Outlary in the Testator by an Estranger which is in its force and upon a Demurr and solemn Debate adjudged a naughty Barr. Trin. 40. Eliz. rotulo 507. The like Plea pleaded to an Executor that brought an Action of Debt and adjudged no Plea And Dixon Administrator of Collins exhibited a Bill against
and determined for he prosecuted the Suit in anothers Right and is but a Minister of the Ordinary and then when the Ground of the Suit is over-thrown to wit his Commission he hath no Authority to proceed further and the Execution issued without Warrant And the like Law upon a Judgement had upon an Administrator the second Administrator shall not have Execution by it for he hath no privity to the Record which mark ANdrews versus Robbins Trin. 4. Jacobi The Plaintiff brought Debt upon an Obligation made to him as Sheriff with a Condition that the Defendant should appear and Crook said that the Defendant had pleaded his Appearance and had omitted to say as it appears by the Court and it was held a grosse Fault but the Record being perused it appeared to be otherwise for the Case was that the Defendant was obliged to make an Obligation to appear in the Kings Bench at a day prefixed in the Writ and that the Defendant pleaded there was no day prefixed in the writ for his Appearance and Crook moved that it was no Plea for the Defendant was estopped to which the Court agreed that he was estopped and Williams said that if a man be bound to pay a hundred pounds that I. S. owes to him he cannot plead that I. S. doth not owe him a hundred pounds and Tanfield said if it were to pay all sums that I. S. owed him he isconcluded so it is held 3 Eliz. Dyer And the Court commanded Judgement to be entred for the Plaintif if no cause shewed tothe contrary such a day JAckson versus Kirton Trin. 4. Jacobi In Common Pleas an Action of Debt brought upon an Obligation the Condition was that if A. would render himself to an Arrest in such a place c. The Defendant pleads that by Priviledge of Parliament those of the Parliament and their necessary Servants ought not to be arrested by the space of forty Dayes before the Parliament nor sitting the Parliament nor forty Dayes after and sets forth that A. was a Servant to such a man of the Parliament at such a time so that he could not render himself to be arrested to which the Plaintiff demurrs and the opinion of the Court was for the Plaintiff for A. might render himself and let it be at their perill if they will arrest him MArkham versus Jerux Hill 4. Jac. Action of Debt brought upon a Bond with a Condition to stand to the Award Arbitrement c. of Master Porley of Grays Inn about the Title of one Copy-hold Tenement M. P. awarded c. that the Defendant should pay to the Plaintiff six pounds upon the 21 May 3 Jac. at such a place to wit in the Church Porch of C. and further awards that the Plaintiff by his Deed should release to the Defendant his whole Right c. upon the said 〈◊〉 Day of May at the same place upon the payment of the Money and in another Clause of the Award he awarded that the Plaintiff should make further Assurance to the Defendant for the extinguishing of his Title as should be advised c. And Yelverton moved that this Arbitrement was void and is in a manner no Award for it is repugnant and insensible for although it be certain at what Day the Defendant should pay the six pounds yet it doth not appear when nor upon what Day the Plaintiff should release to the Defendant for there is no such first Day of May in the whole Award and it is not bound or tied to any year of the King so that it is altogether incertain and although it may be collected that the Arbitrator did intend the 21. Day of May because it is appointed to be made upon the payment of the six pounds which was the 21. May yet it is not expressed but onely by way of inference and implication and it was objected that admit the Award to be void in that part yet it is good in the residue which is to be performed by the Plaintiff to wit the making of better assurance to which Yelverton answered that all the Clauses in one Award are material and the Clause of further assurance depends upon the repugnant Clause of the Release to be made for the Award appoints that the Release is to be made upon the said first Day of May whereas no such Day in the whole Award shall be the first assurance and the assurances which were to be made by the following Clause were in the intention of the Arbitrator to be for the strengthning of the first Release which was granted and the Court said there was much difference between Wills and Deeds and between Arbitrements for Deeds c. shall be construed according to the intent of the parties and upon the words to be collected out of the Deeds but an Award is of the nature of a Judgement and Sentence in which ought to be plainnesse and no collection of the intent and meaning of the Arbitrators for how it ought to be his Judgement and not the Judgement of another upon the words of the Arbitrator and Tanfeild said it had been adjudged that where the Arbitrator did award that one of the parties should become bound to the other in the summ of and no summ in certain but a space left for the summ that it was void and if an Arbitrement be void in one Clause although it be good in all Clauses yet it is in Law no Award for a Judgement ought to be plain certain and perfect in all things but if the Arbitrators award that one of the parties and J. S. an Estranger shall do such a thing that is good as to the party who is within the Submission and void onely to I. S. the Estranger 19 E. 4. ATkins versus Gardiner Pasch 5. Jac. The Plaintiff being President of the Colledge of Phisicians in London brought an Action of Debt against the Defendant for practising Phisick upon the Charter made to them by H. 8. that none should practise Phisick in London nor within seven Miles thereof except such as were authorised by them and gives them Authority to impose Fines upon such as shall practise Phisick which Charter was confirmed by Act of Parliament in 14 H. 8. and he obtained Judgement upon the Statute to recover a summ for himself and the Colledge and before Execution the President died and whether the Successor should have Execution and 8 E. 1. was cited and divers other Books to that purpose STamford versus Cooks Pasch 5. Jacobi An Action of Debt brought upon an Obligation with a Condition that the Defendant should seal such Assurances as should be devised by the Plaintiff and that the Assurance should be of Copy-hold Land and the Plaintiff devised that the Defendant should seal a Letter of Attorney made to one to surrender the Copy-hold for him and also seal one Bond for the injoying thereof and the Plaintiff offered these Writings to the Defendant
to the breach if it had been assigned yet the Court ought to be satisfied that the Plaintiffe had good cause of Action to recover otherwise they should not give Judgement and although a Verdict is given for the Plaintiff yet this imperfection in the Replication is matter of substance and is not helped by the Statute by the opinion of the whole Court except Justice Williams BArwick versus Foster Mich. 7 Jacobi Action of Debt brought for Rent the cause was thus the Plaintiff leased certain Lands to the Defendant at Mich. 1 Jacobi for five years yielding and paying Rent at our Lady Day and Mich. yearly or within ten dayes after and for rent behind at the last Mich. the Plaintiff declares as for Rent due at the Feast of Saint Michael and prima facie it seemed to the whole Court but Crook that the Action would not ly but that the Rent for the last quarter was gone for it was not due at Michaelmas as the Plaintiff had declared for his own shewing it is payable and reserved at Michaelmas or within ten dayes after although the Lessee might pay it at Michaelmas Day yet it is not any Debt which lies in demand by any Action untill the ten dayes be passed and the reservation being the Lessors Act it shall be taken most strongly against himself and although the end of the Term is at Michaelmas before the ten dayes untill which time the Rent is not due and because at that time the Term is ended the Lessor shall loose his Rent as if a Lessor die before Michaelmas Day the Executor shall not have the Rent but the Heir by discent as incident to the Reversion and if the Lessee should pay the Rent to the Lessor at Michaelmas day and the Lessor should dye before the tenth Day his Heir being a Ward to the King the King shall have it again for of Right it ought not to be paid untill the tenth day according to the 44 E. 3. but this Case being moved again in Hillary Term Fleming Fennor and Yelverton changed their opinion and held that the Lessor should have the Rent for it was reserved yearly and the ten dayes shall be expounded to give liberty to the Lessee within the Term for his ease to protract the payment but because the ten dayes after the last Michaelmas are out of the Term rather then the Lessor shall loose his Rent yearly the Law rejects the last ten dayes MOlineux versus Molineux Hill 7 Jacobi An Action of Debt brought against Mo. upon an Obligation as Heir to his father the Defendant pleads that he hath nothing by discent but twenty Acres in D. in such a County the Plaintiff replies that the Defendant had more Land by discent in S. to wit so many Acres and upon this they are at Issue and found for the Defendant that he had nothing by discent in S. by reason of which the Plaintiff could recover and had his Judgement to have Execution of the twenty Acres in D. upon which Judgement in the Common Pleas the Defendant brought his Writ of Error and assigned for Error a discontinuance in the Record of the Plea from Easter Term to Michaelmas Term after and whether this were helped by the Statute of 18 Eliz. because it was after a Verdict was the question and adjudged to be out of the Statute and that it was Error for the Judgement was not grounded upon the Verdict but onely upon the confession of the Defendant of Assetts and the Verdict was nothing to the purpose but to make the Defendants confession more strong and therefore the Statute of the 18 of Eliz. is to be intended when the triall by Verdict is the means and cause of the Judgement which mark and therefore the Judgement was reversed the Law seems to be the same if the Plainiiff brings an Action of Debt for forty pounds and declares for twenty pounds upon a Bill and twenty pounds upon a non tenet and the Defendant confesses the Action as to the money borrowed and they are at issue as to the money demanded by the Bill which Passes also for the Plaintif by reason wherof he hath Judgement to recover the forty pounds demanded and the Damages assessed by the Jurors and Costs intire in which Case if there be a discontinuance upon the Roll it seems that all shall be reversed notwithstanding the verdict for the verdict is not the onely cause of the Judgement but the Confession also and the Costs assessed intirely for both but yet inquire of this It was adjudged by the whole Court that in those Cases where an Executor is Plaintiff touching things concerning the Testament and is non-suited or the verdict passes against him that he shall not pay Costs upon the new Statute of 4 Jac. for the Statute ought to have a reasonable intendment and it cannot be presumed to be any fault in the Executor who complains because he cannot have perfect notice of what his Testator did and so it was resolved also by all the Judges of the Common Pleas. GOodier versus Jounce Trin. 8 Jacobi Jounce recovered in the common Pleas a hundred and thirty pounds against Goodier in Crastino Animar 6 Jacobi and the eight and twentieth of November the same Term being the last Day of the Term the Plaintiff proved an Elegit against Goodier to the Sheriffs of London where the Action was laid and to the County Palatine of Lancaster returnable Crastino Purificationis after which was granted by the Court and by the Elegit to the County Palatine it appeared that it was grounded upon a Testat returned by the Sheriffs of London that Goodier had nothing in London where in truth they never made such a Return and upon that Elegit by a Jury impannelled before the Sheriff of Lancaster a Lease of Tithes was extended for fifty nine years then to come at the value of a hundred pounds which the Sheriff delivered to J. the Plaintiff as a Chattell of Goodiers for a hundred pounds and returned it and that Goodier had no more Goods c. and thereupon Goodier brought a Writ of Error in the upper Bench and assigned for Error that no Return was made by the Shetiffs of London nor filed in the common Pleas as was supposed in the Elegit and it was adjudged Error for although the Plaintiff might have an Elegit as he desired in the common Pleas immediately both into London and Lancashire but seeing he waived the benefit thereof and grounded his Execution upon a Testatum which was false it was Error in the Execution for as it appears 18 H. 6. 27. and 2 H. 6. 9. that a Testatum is grounded upon a former Return filed that the party had nothing in the County where the Action was brought and because it appeared upon Record that the prayer of the Elegits was made the eight and twentieth of November the last day of the Term and by the Testatum it is supposed
Arbitrators are made Judges by the assent and election of the Parties and it appears that the parties put their trust not in the four joyntly but joyntly and severally and the Ita quod c. is an explanation of all the Condition that they four or any two of them might arbitrate all matters between them and so much appears 2 R. 3. 18. where two of one part and one of another part put themselves to the Award of I. S. now by this Submission I. S. may arbitrate as well any matters between the two parties of one part as between them and the third because in the intent of the parties the end of their Submission was to have peace and quietnesse and 4 H. 4. 40. the Condition of a Recognisance was that if A. A. shall stand and abide the Award of four named three or two of them of all matters c. which is a division of their power and observe in the principal Case that untill the Ita quod comes the Condition is not perfect for all the Condiâ—… is but one Sentence BRisco versus King Trin. 9. Jacobi The Plaintiff brought an Action of Debt upon a Bond for three hundred pounds with a Condition that the Defendant should perform all Covenants Clauses Payments and Agreements contained in one Deed poll of the same Date made by the Defendant to the Plaintiff the Defendant by way of Plea sets forth the Deed poll in haec verba in which Deed was contained one Grant and Bargain and sale of certain Lands made by the Plaintiff to the Defendant for one hundred pounds paid and two hundred pounds to be paid in which Deed there was one Proviso that if the Defendant should not pay for the Plaintiff to one J. S. forty pounds to J. D. forty pounds c. at such a Day that then the Bargain and Sale should be void and the Defendant pleads that he had performed all the Covenants c. comprised in the Deed the Plaintiff assigned a Breach for the not paying of forty pounds at the Day according to the Proviso and the Defendant demurrs and adjudged for the Defendant by the whole Court for the Condition bindes the Defendant to perform other Payments then such as the Defendant is bound by the Deed to perform for the Obligation was made but for the strengthning of the Deed and the Deed requires not any compulsory Payments to be made but leaves it to the will of the Defendant or to make the payments specified in the Proviso or in Default thereof to forfeit the Land to the Plaintiff and therefore it appears that it was not the intent and meaning of the parties to make an Obligation with a Condition repugnant to it and contrary to the Deed poll of Bargain of Sale and by this means the Payment of forty pounds to J. S. which is made voluntary by the Deed poll shall be made compulsory by the Obligation but the word Payments in the Condition of the Obligation shall have relation onely to such payments contained in the Deed poll which are compulsory to the Defendant and not otherwise and because the neglect of the payment of forty pounds to J. S. assigned for the Breach is denied to be voluntary for the Defendant to pay or not to which the Condition of the Obligation cannot in any reasonable construction extend therefore it was adjudged against the Plaintiff WOolby versus Perlby Mich. 9. Jacobi An Action of Debt brought upon a Lease for years the Plaintiff derives his Title by the grant of the Reversion by way of bargain and Sale in Fee from the first Lessor and declares that by an Indenture of such a Date one grants bargains and sells for money the Reversion to him in Fee which Indenture was inrolled such a day according to the form of the Statute and because he shewed not in his Declaration in what Court it was inrolled and the Statute of 27 H. 8. Parles of many severall Courts and that it is no reason to put the Lessee to such an infinite labour to search in all Courts as well at Westminster as in the Countrey with the Clerk of the Peace and for this cause after a verdict a nil capiat per Billam entred by the whole Court SIR George Savill versus Candish Hill 9 Jac. The old Countesse of Shrewsbury had a Verdict against Savel and upon a challenge of the Sheriff on the Plaintiffs part of the County of Derby the Tenure was directed to the Coroners who returned all the Writs and at the Assises a Tales was awarded and the name of one of them of the Tales was Gregory Grigson c. and by postea returned by the Clerks of the Assise in the Common Pleas the Tales was returned to be by the Sheriff but in the entring up the Judgement it was made by the Coroners and the name of the man of the Tales by the Clerk of the Assise was restored according to his right name Gregory but entred in the Roll by the name of George and upon that Judgement Savill brought a Writ of Error which depended ten years and more and the first Plaintiff who was the Countesse of Shrewsbury died this matter being indiscussed and Candish as Executor to the Countesse revived all by Scire facias why he should not have Execution and after many debates the Judgement was reversed for three causes first because upon the Pannell of the Jurors names after the twenty four Jurors were named at the foot of the Pannell two names were added to the Jurors which in truth were the men of the Tales but no mention was made that they were the names of the Jurors impannelled de novo according to the form of the Statute which ought to be for at the Common Law the Justices of assise cannot grant any Tales to supply the default of the first Jurors but it is given only by the Statute of the 35. H. 8. which ordains that their names shall be added to the first Pannell and this cannot be discerned to be done accordingly if such a stile and Title be not made over their names viz. nomina Jurator de noto apposit secundum formam Statuti to distinguish what is done by the Common-Law and what by the aid of the Statute and also the Coroners names ought to be added to the Tales at the bottom of the Pannell and in this Case their names were onely indorsed which was upon the Return of the first Pannell and although divers Presidents were shown to the Court wherein the names of the Jurors de novo appoposit c. were united upon the Pannell yet the Court did not regard them because it seemed that they passed in silence without debate had upon them the second cause was because it appeared by the Return of the postea that the Tales were returned by the Sheriff which is error in the first Processe to the Coroners and although in the Entry in the Common Pleas of
forth divers payments by him made and amongst other payments shews that he had payed to M. Fawn named in the Condition sixty pounds for a Legacy due by the Will of the said Ed. A. the payment of which sixty pounds was disallowed by that Court and by the Order of the Chancery sixty five pounds paid for not allowing the first sixty pounds to Ed. A. the Son which sixty and five pounds the Defendant had not repaid though thereunto requested and so he was damnified to which Replication the Defendant demurrs and the opinion of the whole Court after a great Debate was against the Plaintiff for the Plaintiff in his Replication had alleadged two Causes to inforce his Damage the first was that the Plaintiff in his Answer in the Chancery had alleadged the payment of sixty pounds to M. F. for a Legacy due to her by the Will and that such Allegation was rejected by the Court of Chancery and neither of those matters are certainly alleadged but by way of Implication and not expresly for he ought to have shewn that a Legacy of sixty pounds was given to M. F. by the Will of E. A. for although the Will of E. A. is recited in the Condition in the Date against which Recitall the Defendant may not be admitted to say that he made no such Will yet the Legacy given to M. F. is not recited in the Condition if not in the General against which the Defendant may take a Traverse that Eáw. A. did not bequeath such a Legacy of sixty pounds and upon that a good Issue may be taken And secondly the Plaintiff sayes that the payment of the said sixty pounds was disallowed by the Court of Chancery and doth not appear in the Replication where the Chancery was at that time to wit whether at Westminster or at any other place and it is issuable and triable by a Jury whether any such Order of Chancery were made or not for the Orders there are but in Paper and are not upon Record to be tried by Record but by a Jury and the Plaintiff perceiving the opinion of the Court against him prayed that he might discontinue his Suit which was granted by the whole Court but Quaere of this it being after a Demurrer WEaver versus Clifford Pasch 44. Eliz. rotulo 453. The Plaintiff brought an Action of Debt upon an Escape against Clifford and declares that one A. was bound to the Plaintiff in one Recognisance of a hundred pounds to be paid at a Day at which Day A. made Default of Payment and the Plaintiff sued out two Scire fac and upon the second Scire fac a Nihil was returned and the Plaintiff had Judgement to recover and afterwards he sued out a Levari fac and a Nihil being returned the Plaintiff prosecuted a Capias ad satisfaciend by vertue of which Writ the Defendant being then Sheriff took the said A. and afterwards at D. in the County of S. permitted him to go at large to which the Declaration the Defendant demurred Damport for the Defendant and he shewed the cause of the Demurrer to be because a Capias upon the Recognisance did not lie and he divided the Case into two parts first whether a Capias would lie in the Case and secondly whether the Sheriff would take the Advantage of such a naughty Processe and as to the first it seemed to him that a Capias would not lie because it appeared by Herberts 5. Repub. fol. 12. And Garnons Case 5. Rep. fol. 88. that the Body of the Defendant was not liable to Execution for Debt by the Common Law but onely in Trespasse where a Fine was due to the King or that he was accountant to the King and the Plaintiff could have no other Processe but a Fieri facias within the year and if the year were passed then he might have a new Original in Debt But now by the Statute of Marlbrig cap. 23. And Westm. 2. cap. 11. a Capias is given in Account and by the 25 E. 3. c. 17. Capias is given in Debt and Detinue and by the 19 H. 7. c. 9. the like Processe is given in Case as in Debt and Trespasse and the 23 H. 8. c. 14. a Capias is given in a Writ of Annuity and Covenant but Statute gives a Capias in this Case and therefore it remaines as it was at Common and by that it would not lie which is also apparent by the Recognisance for that is that if the Debt shall be levied of the Goods and Chattels Lands and Tenements c. and doth not meddle with the Body and by an expresse Authority 13 14 Eliz. Dier 306. Puttenhams Case it is held that the Chancery hath no Authority to commit the Defendant to the Fleet upon a Recovery in a Scire facias upon a Recognisance because the Body is not liable And for the second point it seemed to him that the Sheriff should take Advantage of this which should be as void and as null whereof a stranger may take benefit and to prove this he took this Difference when a Processe will not lie and where it is disorderly awarded as if an Exigent be sued out before a Capias or an Execution before Judgement for if that Processe be originally supposed there the Processe is but erroneous in Druries Case 8. Rep. 142. 34 H. 6. 2. b. But if the Action it self will not maintain the Processe as a Capias in Formedon there that Processe is as void and null and he took another Diversity when the Capias is taken by the Award of the Court when Judgement is given that he shall recover for in that Case it shall remain good untill it be reversed because it is the Act of the Court and so is Druries Case to be intended but if the party himself take it it is at his own peril as here it is for the Plaintiff hath onely pleaded that he prosecuted c. which is as void to the party who sued it out and he shall have no benefit of it but the Sheriff shall not be punished for false Imprisonment because he is not to examine the illegality or validity of the Processe for the 11 H. 4. 36. If a Capias issue out without any Original and the party be taken the Sheriff shall not be punished and for these Reasons he prayed Judgement for the Defendant Noy was for the Plaintiff and he agreed that at the Common Law no Action did lie in this Case as it hath been said but he was of opinion that this Case is within 25 E. 3. cap. 17. for the intention and drift of the Statute was to give speedy remedy to recover Debts and the Action is all one in the eye of the Law as if it had been done by Original which in the equity of the Statute And a Capias lies upon a Recognisance against a Surety for the Peace and upon a Scire facias against the Bail in the Upper Bench. As to
Puttenhams Case the Reason because he was not in Execution before And for the second Objection although the Capias did not lie yet it is but Error for if the Court had Jurisdiction to hold plea of the Cause although the Process be naughtily awarded it is but Error of which the Sheriff shall not take benefit and therefore if a Woman have recovered in Dower and hath Damages in the Common Pleas and thereupon the party takes a Capias for the Damages and the party be taken and suffered to go at large it is an Escape 10 Hen. 7. 23. and if a Capias be awarded in the Common Pleas after the Record removed it is but Error and so ruled 13 E. 3. Title Barr 253. But if the Court hath no Jurisdiction in the cause as a Formedon brought in the upper Bench as it is 1 R. 3. 4. or an Appeal in the Common Pleas or where a Writ is awarded out of the Chancery returnable in Chester these are void and coram non Judice and there ought not to be any arrest upon such a Writ and he cited a Case Trin. 31. and 37. Eliz. in the Exchequer Woodhouse and Ognells Case ruled accordingy and as concerning the difference taken there is no other form of pleading but only quod prosecutus fuit quoddam c. without saying that it was by the award of the Court and the Court at that time did strongly incline that it was but Error at the most but Mich. 11 Ja. It was adjudged by the whole Court that the Capias could not ly and that it was onely Error of which the Sheriffe shall not take the benefit KKetleys Case Pasch 11 Jac. An Action of Debt brought for arrearages of Rent brought against R. upon a Lease for years the Defend pleads in Barr that the time of the Lease made he was within age to which the Plaintiff demurres and upon the first reading of the Record the question was whether a Lease made to an Infant be void and it was said it should be void otherwise it might be very prejudiciall to Infants whom the Law intends not to be of sufficient discretion for the mannaging of Land and also the Rent may be greater then the value of the Land to the great impoverishing of the Infant and took this difference where it is for the apparant benefit of the Infant a sa Lease made by an Infant rendring Rent and the like and when it is but an implied benefit as here for the Law intends that every Lease is made for the benefit of the Lessee although prima facie it seems to be but tail and trouble but the Court held it onely voidable as Election for if it be to the Infants benefit be that benefit apparant or implied it shall be void in no Case prima facie as 21 H. 6. 31. b. but the Infant may at his Election make it void for he shall before the Rent day come refuse and waive the Land an Action of Debt will not ly against him for otherwise such a Lease shall be more strong then any Fine or Record and great mischeif would insue and as to the prejudice it well be answered for if more Rent be reserved then the value of the Land he ought to have set it forth that it might have appeared to the Court which is not done for then clearly he should not have been bound for there had been no profit to the Infant as Russells Case is 5 Rep. 27. for if an Infant release it is not good except he hath received the money and it also appears by 21 H. 6. that if he did not enter and manure the Land that an Action of Debt would not ly against him but the principall Case was without colour for the Rent and taking the profits were Land as one day of the Reservation and secondly it was not shewed that the Rent was of greater value and thirdly the Defendant was of full age before the Rent day came HIggins Case Pasch 11 Jac. Action of Debt brought by Higgins against Yelverton was of an opinion at the Barr that if one be arrested upon a Processe in that Court and he puts in Bail and afterwards the Plaintiff recovers that he might at his Election take out his Execution either against the principall or Bail but if he took the Bail or arrested him or had him in Execution for the Debt although he had not full satisfaction he could not meddle with the Plaintiff but if two be Bail although one bee in Execution yet he may take the other also and Coderidge Justice was of the same opinion and Man the secondary said it was the daily practice there and so if the principall be in Execution he cannot take the Bail HAukinson versus Sandilands 11 Jacobi The Plaintiff brought an Action of Debt upon an Obligation for forty pounds against the Defendant who demanded Oyer of the Condition and afterwards pleads that the Obligation was made and delivered by him and one M. who is still living at D and demands Judgement of the Writ to which the Plaintiff demnrres the words of the Obligation were Noverint universi c. adquam solucionem bene fideliter faciend Obligamus nos vel quemlibet nostrum And whether this was should be accounted a Writ Obligation or Severall at the Election of the Plaintiffe was the question and Ger. Cook was of opinion that it should be brought against both and his onely reason was that at most the Plaintiffe had but an Election for the word vel could not be taken for et as it is 11 H. 7. 13. a Grant made to J. S. at J. D. is void and 20 H. 6. grant to two to them or to the Heires of one of them is not good and then if he had only an Election he hath made that already for the Defendant hath pleaded and averred that is was made by two joyntly by the appearance whereof he hath agreed to take it accordingly but Yelverton argued in this manner that although the words in an Obligation be not proper and apt yet if they be substantiall it is enough and therefore 28 H. 8. 19. utrumque nostrum is adjudged good and the 21 R. 2. 939. ad quam quidem solucionem obligamus nos singulos nostrum is adjudged severall and joint and for a direct authority he cited 7 H. 4. 66. where an Obligation was nos vel alterum nostrum and the Plaintiff brought severall Precipes and adjudged good that he might make it severall or joynt and all the Judges were clearly of an opinion that the Action was well brought for as it hath been said the Plaintiff had his Election and that Election would be said to be executed by the joynt Delivery for there was no cause to make Election untill the Bond was perfected and therefore though one delivers it at one time and the other at another yet the Plaintiff may have a caput Precipe if he
will for the Election is in bringing the Action and the words vel and are but Synonimaes and Champions Case Plowden 286. is taken for vel and the 21 E. 3. 29. in Mallories Case u is taken for and therefore they gave Judgement that the Defendant should answer over FReeman versus Shield Trin. 11 Jacobi and adjudged Pasch 12 Jacobi Freeman brought an Action of Debt upon an Obligation against Shield and proved Oyer of the Condition which was that if the Defendant should stand to the Award and Arbitrement of J. S. that then c. the Defendant pleads that the Arbitrators awarded that whereas there was no suit in the Chancery depending against the Plaintiff for divers matters that the Plaintiff should be acquitted of that suit and of all the matters contained in the same Bill and the Defendant further alledges that he did not make any prosecution of the said Bill but that the Plaintiff stands acquitted thereof the Plaintiff replies that the Defendant after the said Award such a year and day did exhibit a new Bill which did contain the same matter which the first Bill had and set forth at large both the Bills by which it appeared to the Court that it was so to which Plea the Defendant Demurres and the cause of the Demurrer onely was because the Plaintiff had pleaded that the Defendant had exhibited a new Bill but had not alledged any Processe taken forth upon the same Bill and if this be a breach of the award is the question Govin was for the Plaintiff and he was of opinion that it was a breach for the words were quod staret acquietatus and to be acquitted is not onely to be intended of an actuall disturbance or molestation but if the party be put in fright or is liable to any Processe it is a breach 8 Ed. 4. 27. a Condition to save one harmlesse if a Capias be awarded against him although it be not executed yet it is a forfeiture of the Bond nay though it was never delivered to the Sheriff for otherwise the Plaintiff should be in continuall care trouble for fear lest the Defendant should do it and so the Defendant may dally with him a long time which shal be mischievous therefore it may be resembled to 9 H. 7. where if a man sell a thing with warranty to pay for it at a day to come if the thing sold be corrupt the party may have his Action of deceit before the day of payment because it is in the others power to bring his Action and so it is in the Defendants power to serve the Plaintiff with Processe when he pleases and therefore it is a breach Coventry for the Defendant first because it is no such Process as can prejudice for neither goods nor Body shall be taken and therefore is not like the Cases before cited And secondly it is not such a process as our law respects or regards for a Bill is but as a Petition Haughton Justice was of the same opinion with the rest of the Judges but adjourned untill Hill 11. Jac. and an Exception taken because the Defendant had not answered the Declaration for the Condition is that he should be acquitted the Defendant pleaded that he hath been acquitted and Cook was of opinion that it was good and Pasch 12. Jac. Judgement was given for the Defendant by the whole Court KIpping versus Swain Trin. 11. Jacobi The Plaintiff brought an Action of Debt against Swain upon the Statute of 2 E. 6. for not setting forth of Tithes and declares whereas the Plaintiff being Proprietor of the Rectory of B. in the County of c. for the term of seven years and that the Defendant was Occupier of Lands within the same Parish for six moneths by a Devise made the tenth of March Anno decimo Jacobi And that the Defendant 27. Aug. the year aforesaid did cut his Corn there growing and that the tenth of September then next following the Defendant being Subdit dicti Domini Regis carried away the said Corn not setting out the Tenth according to the Statute and upon a Nil debet pleaded it was found for the Plaintiff and it was moved in Arrest of Judgement first because of the Plaintiffs own shewing he had no cause of Action against the Defendant for the interest of the Defendant in the Land was determined before the Tithes were carried away but the Court were of opinion that it was no Exception for although his interest in the Land was gone yet he remained Owner of the Corn for if Corn is cut although a stranger take them away before severance yet an Action will lie against him upon this Statute for otherwise the intent of the Statute may easily be defeated Another Exception was taken because the Plaintiff said he was Subdit dicti Domini Regis which is a Fault incurable for the Statute referrs Subdit to his politick capacity but Dicti goes to his natural and sole capacity and so the force of the Statute shall be determined by his Death and for this cause an Indictment upon the 8 H. 6. Contra pacem dicti Domini had been severall times reversed and of this opinion were three Judges but Haughton doubted of it and so it was adjourned PEnniworth versus Blawe Trin. 11. Jacobi The Plaintiff brought an Action of Debt upon an Obligation and prayed Oyer of the Condition which was that he should stand to the Arbitrement of J. S. of all Suites Quarrels Controversies and Debates from the beginning of the World untill the making the Obligation so that the Award be made in writing under the hand and seal of N. S. and should be delivered to the parties before such a Day c. and observe that the Sealing and Delivery of the Obligation was at twelve a clock the first of May the Defendant pleads in Barr that the Arbitrators made an Award and did deliver that to the parties above-said but said further that in the morning and before twelve a clock the first of May aforesaid one Debate and Controversie did arise between the parties concerning a Trespasse committed by the Plaintiff the same morning of which the Defendant gave notice to the Arbitrator before twelve a clock of the said first of May concerning which Trespasse the Arbitrator made no Award and therefore pretends the Award to be void and demands Judgement to which the Plaintiff demurrs and Yelverton being for the Plaintiff that the Plea was not any Answer to the Plaintiff and therefore Judgement ought to be given for the Plaintiffs Action is grounded upon an Obligation as single and the thing which helps the Defendant is the Condition indorsed to stand to the Award of S. the which is restrained so that it be delivered under the hand and seal and if the Defendant will plead the Condition against the Plaintiff he must plead it to be performed and executed according to the Submission by the
Arbitrator for else the Bond remaines as single and so in this Case the Defendant pleads that the Arbitrator made an Award and that it was delivered by the Arbitrator but whether it was delivered in writing or under his hand according to the Submission is not pleaded and therefore it is no Answer to the Plaintiff for he hath not pleaded an Award made according to the Condition and therefore the Bond is single Yea Cook argued for the Defendant and said that the Plaintiff by the Demurrer had confessed that the Arbitrator had made no Award as the Defendant had pleaded and then he shal never have Judgement for if it may judicially appear to the Court that the Plaintiff had no Cause of Action he shall never have Judgement and that the Plaintiff ought to have averred and joyned with a Traverse of that the Defendant pleaded to wit that the Arbitrator had made an Award and delivered it in writing under his hand and seal without that c. and as to the other matter of the Trespasse the same Day and so he might have demanded Judgement for his Plea doth but amount to the general Issue that the Arbitrators made no Award but Yelverton answered that it could not be pleaded in any other manner then he had pleaded it because he could not traverse it because the Defendant himself had pleaded that he made an Award and although the Demurrer confesse all matters in Deed yet they are such onely as are well pleaded as Burtons Case 5. Rep. 69. And also although the Award pleaded cannot be intended the same Award specified in the Condition yet the Plaintiff had good cause of Action and all the Court Fleming being absent were of opinion that the Plaintiff ought to recover for the Reasons before alleadged but as for that point whether the Controversie that grew in the morning should be arbitrated because there cannot be a fraction of Dayes it was not argued nor any opinion of the Court delivered onely Cook cited 5 E. 4. 208. that the Arbitrator ought to arbitrate of that because the Condition was of all matters untill the making the Obligation WHeeler versus Hayden Trin. 11. Jacobi W. Parson of the Church of A. brought an Action of Debt against the Defendant for Arrerages of Rent and declared upon a Lease made to the Defendant for four years if the Plaintiff did so long live and continue Parson c. and upon a Non demisit pleaded the Jury found an especial Verdict to wit that the Plaintiff had leased it to the Defendant for four years if the Plaintiff shall so long live onely and whether this Verdict was found for the Plaintiff or Defendant was the Question and Cook Serj. seemed that it was found for the Plaintiff for the main matter was that he should lease it if he so long lived and the subsequent words are of no effect because they contained no more then by the Law was before spoke of for the Law sayes that if he be non-resident or if he resign or be deprived that the Lease shall be determined like to the 30. Ass 8. A Lease to two and the longest Liver of them and the 17 E. 3. 7. A. A Lease to one of Land and a House for years and that the Lessee may make good profit of it this last Clause in both is idle and Dallidge was of the same opinion but Yelverton against them for the Plaintiff had intituled himself to the Action by such a Cause and if he fail in that it is his folly and shall not recover for the Lease upon which he declared had two Determinations the first by Death the second by removing and the Jury had found the Lease onely upon the first Determination and therefore various in substance and therefore the Jury have found against the Plaintiff as if a Lease be made by Baron and Feme if they shall so long live continue married both of them ought to be found Haughton to the same purpose for when a Parson makes a Lease if he shall so long live he doth take upon himself that he will do no Act by which the Lease shall be determined but onely by his Death for otherwise an Action of Covenant will lie against him but if the other Clause be added to wit and shall so long continue Parson then he may resign or be non-resident without danger and so there is great difference between the Verdict and Declaration and it was adjourned the Court being divided in opinion Dower MIch 6. Jacobi Dower may be brought as well against the Heir himself as against the Committee of the Ward but if an Infant be in Ward to a Lord in Chivalry the Dower shall be brought against the Guardian in Chivalry If Dower be brought against one who is not Tenant of the Free-hold the Tenant before Judgement shall be received and upon Default of the Tenant and after Judgement he may falsifie MIch 9. Jac. Dower demanded of the third part of Tithes of Wooll and Lamb in three several Townes and it was demanded of the Court how the Sheriff should deliver Seisin and the Court held it the best way for the Sheriff to deliver the third part of the tenth part and the third tenth Lamb Videlicet the thirtieth Lamb. In Dower against the Lord Morley the Tenant at the Day of taking of the Inquest after the Jury had appeared and before the Jury were sworn made Default and a Pety Cape was awarded and the Tenant at the Day in Banck informed the Court that the Tenant is but Tenant for Tenant for Life and that the Reversion is in one P. who at the Return in Banck ought to be received to save his Title and the Court appointed him at the Return of the Pety Cape to plead his Plea HIH. 13. Jacobi Allen and his Wife Demandants versus Walter in Dower of a Free-hold in Munden Magna Munden Parva B. the Sheriff returned Pleg de prosequend J. D. R. R. And the Names of the Summoners J. D. R. F. And after the Summons made and by the space of fourteen Dayes and more before the Return of the said Writ at the most usual Church Door of Munden Magna where part of the Tenements lay upon the 27. of October being the Lords Day immediately after Sermon ended in that Church he publikely proclaimed all and singular things contained in that Writ to be proclaimed according to the Form of the Statute in that behalf made and provided L. P. Ar. Vic. And Exception was taken to the Return because Proclamation was not made at the Doors of the Churches where the Lands lay and the Court held it not necessary but it was sufficient to make Proclamation at any of the Churches but the Return was insufficient because he said that he had caused to be proclaimed all and singular in that Writ contained and sayes not what and the Demandant released his Default upon the grand Cape CLefold versus
by the whole Court held to be a condition but Judgment was given for the Plaintiff for doublenesse in the plea. BRown versus Dunri Hill 15. Iac. rotulo 1819. The Defendant made cognizance c. as Bailiff M. Walker Widow Administrator c. R. W. for one rent charge of 6 l. granted by one Warner to the said R. and M. his wife for life of the VVife And the said R. by the said writing granted c. That if it should happen the said yearly Rent to be behind and not paid in part or in all by the space of ten dayes next after any Feast c. being lawfully demanded that then c. the said Warner c. ten shillings nomine paene for every default and that then it should be lawfull to the said W. and M. and their Assigns to enter into the premises and distrain as well for the rent as for the nomine paene and shews that the rent was behind in the life of the Husband and that he dyed intestate and that administration was committed to the woman and made cognisance for the rent due at such a Feast in the life of the Husband and being then behind and the issue was that the Grantor was not seised and after a tryall diverse exceptions were taken one was for that a demand was not alledged another was that the cognisance was made as Bailifle to the Administrator when as the woman by the survivorship should have the rent Another was that it is not alledged that the rent was behind by ten dayes next after the Feast and the exceptions upon debate at diverse dayes were over-ruled First the demand is not necessary for the Distress is a sufficient demand as it was adjudged in Iaces case The second was because the cognisance as Administrator are void idle and superfluous and for the ten dayes it was good because that predicto tempore quo c. It was behind and adjudged by the whole Court for the Advowant SLoper versus Alen Trin. 15. Jac. rotulo 3002. Replevin upon the taking of 40. Sheep the issue was that the Sheep were not levant and couchant and found by a speciall verdit that twenty Sheep were levant and couchant and that twenty Sheep were not levant and couchant and it was held upon the reading of the Record that the Plaintiff should have his Judgment BVrton versus Cony Hill 16. Iac. rotulo 2044. The Defendant avows for a rent charge granted to him for life by his Father issuing out of all his Lands in such a Town to have and to hold to levy and yearly to take the said annuity or annuall rent of c. during the naturall life of the said P. at two Feasts in the year to wit c. by equall portions the first payment to be made at the first and next Feast of the said Feasts which should next happen after the term of 8. years ended and determined specified and declared in the said will And if it should happen c. And averres in the avowry that there is not any term of years specified and declared in the said Testament before recited And note that in the premises of the Deed it is recited thus in fulfilling the Will or Testament of me the said T. bearing date such a date I have given c. And the Court held that the grant was present if no term was contained in the will and Judgment was given for the Advowant But after Judgment was entred upon Record an exception was taken because it was not averred that the Grantor was dead and it was allowed for a good exception but it came to late judgment being entred HEyden versus Godsulm Judgment for the Defendant who avowed for rent reserved upon a Lease for years and it was moved that the Plaintiff who brought the writ of Errour upon that Judgment ought to find bayle upon the writ of Errour by the Statute of 3. Iacobi and it was held by the greater number of the Judges that the Plaintiffe should not find bayle for Replevins are not within the Statute TVrny versus Darnes Trin. 17. Iac. rotulo 2887. Demurrer in a replevin upon a traverse of Lands when as the parties have not agreed of the quantity of Land The Avowry was that C. was seised of one Messuage two Barns one Mill c. and 100. acres of Land with the appurtenances in W. and held them of c. by fealty rent c. and suit of Court c. And the Plaintiff prayed in aide and he joyned and alledges that he was seised of 70. acres of Land with the appurtenances in his demesne as of Fee and held them of G. by fealty and rent c. and suit of Court and traverses that he held the Tenements of the said G. as if his Mannor of W. in manner and form as c. and a speciall demurrer and one cause was because he denies not the seisin of the said services but only denies and traverses the tenure and therefore they pretended that the plea contained double matter and was a negative pregnant and secondly whether the Seisin or Tenure be traversable and the Plea was held good by Hubberd and Warburton RIchards versus Young Trin. 16 Jacobi rotulo 104. vel 1700. A Replevin brought for taking of Cattel at Aller in a certain place called Land Mead the Defendant avows as Bailiff of Sir John Davies the Kings Serjeant containing four Acres for damage fesant the Plaintiff pleads in Barr that Henry Tearl of Hunt was seised of the Mannor of Aller whereof one Messuage c. was parcell and customary Land and devisable by Copy of Court Roll and that within the said Mannor there was a Custome that every customary Tenant of the said Messuage hath been used to have Common of Pasture in the said place called Land Mead rhe Issue was without that that within the said Mannour with the appurtenances whereof c. is and time out of mind was a custome that every customary Tenant of the laid Messuage c. had Common of pasture in manner and form c. and Serjeant Harris moved in Arrest of Judgment that there was no custome alledged because it did not appear in the pleading that the place where the taking was supposed to be was within the said Mannor and no custome of the Mannor could extend forth of the Mannor but he ought to prescribe in the Mannor and note he ought to have pleaded that the place in which c. was parcell of the Mannor and then the Plea had been good In a Replevin upon an Avowry for Rent the Plaintiff for part pleadeth payment for the other part an Accord the one Issue is found for the Paintiff and the other for the Defendant the Plaintiff shallrecover his costs and damages and the Defend shall have Judgement of Return habend and no costs and damages I think otherwise it is if the Avowries be severall then on both
sides they shall recover costs and dammages LEe versus Edwards Trin. 19 Jacobi rotulo 470. The Case was in Replevin a Copy-holder claims Common in another mans Land the Lord infeofleth the Copy-holder of his Copy-hold Land whether he hath now lost his Common and held that he had but if a Copy-holder hath Common in the Lords waste and the Lord inseofeth him of the Copy hold with all Commons the Common is not gone Oabel versus Perrot Hill 9 Jacobi rotulo 2734. Tenant in Tail hath power to make a Lease for 89 years if three persons live so long and reserving the old Rent due and payable yearly and he maketh a grant in Reversion for years and whether that be good or no was the Question there being a Lease for life in possession the second Lease was for 89 years if three live so long for the matter in Law the Court held the Lease good but for want of an averment of the life of c. the Plea was not good ROberts versus Young Hill 9 Jacobi routlo 1835. the Defendant in a Replevin pleads that he offered amends and doth not shew that he offered it before the impounding of the Cattle and adjudged an ill Plea and the offer of amends cannot be made to him that maketh cognisance BAcon versus Palmer Trin. 12 Jacobi rotulo 3947. A Copy-holder in Replevin prescribes to have Common of pasture appurte nant to the Copy-hold the other party pleads an Extinguishment of Common because the Lord had inclosed Land lying in another field in which field and in the other field the Lord had Common by cause of vicinage and note that in Common for cause of vicinage if one inclose part it is an extinguishment of all the Common SHarp versus Emerson Mich. 12. Jacobi The Defendant makes avowry for Homage Fealty and Rent the Plaintiff prayes in aid and hath a Summmons in aid and at the return of the Summons the Prayee in aid was Essoined and after the Ession the Defendant moved the Court that the Homage might be put out of the Avowry which was entred with by consent of parties was raised out of the Will ARundell versus Blanchard and Jackson Pasch 13 Jacobi rotulo 2037. The taking in Replevin was supposed to be at Southwark and one of the Defendant pleads non cepit and the other Bailiff of the Governors of the possessions revenues and good of the Free-Grammar-School of c. for the Parishoners for the Parish of Saint Olaves in Southwark in the County of Surrey and the Advowry was made for damage fesant the Plaintiff prescribed for a way belonging to his house in the Parish of Saint Olaves in Southwark and the Venire facias was of Southwark in the Parish of Saint Olaves in Southwark and exception taken to that and held good because one Defendant had pleaded non cepit and another exception was because he had not shewed when the Corporation begun and held an idle exception for one need not shew when they were incorporated another exception was because the name of one of the Jury was mistaken because in the Return of the Venire it was to Lisney of Croydon and in the Pannell of the Habeas Corpus it was written to John Lisney of Croydon and because in sound it is all one and the Sheriff made oath that he was the man that was returned in the Venire facias the Return was amended in Court and Judgement given by the whole Court for the Plaintiff PAin versus Mascall Hill 12 Jacobi rotulo 3400. The Lord avows the taking of one Mare as for Rent behind so for the fourth part of a Releif and doth not expresse the same due for the releif and for the Rent the Plaintiff pleads tender and demurres for the Releif because he had not expressed the same and because he had distrained one thing for the Rent and Releif pretending that if one cause passe against him and another for the Avowant that he could not have a Return habend but the Court were of a contrary opinion but if two men shall distrain one and the same Mare for two severall causes and one hath Judgment for himselfe and the other for himselfe In this case no return habend can be made of the Mare BRown versus Goldsmith Trin. 13. Jacobi rotulo 607. A Court of Pipowders is incident to a Fine and a Court Baron to a Mannor And a Court Baron cannot be separated from a Mannor for it is a wealth to a Mannor the like of a Court of Pipowder to a Fair by the grant of a Mannor with cum pertinencijs the Court passes for it is an incident inseparable to the Mannor and a man cannot grant his Court but he may grant the profits of his Court. MAgistri socij Collegij Emanuel is in Cambridg The writ was adjudged naught in replevin because they had distrayned in their proper names for a Corporation as Maior and Comonalty cannot distrain in their own persons but by their Bayliff The Court held that the Sheriff could not take a Bond in replevin but must take pledges according to the old custome JVid versus Bungory Trin. 8. Jac. rotulo 3059. The Defendant shews that one was seised of Land in fee and held it by Knights service of a Mannor and for the rent of two Cocks and two Hens and the Lord grants the third part of the Mannor to another who avows for the seruice and the Cocks and Hens and held he could not alone avow for that joynt service but the other should joyn with him WEnden versus Snigg Trin. 11. Jac. rotulo 1137. In replevin the question was upon a Lease for life made to three to have and to hold to them the said A. B. and C. and every of them for the term of their lives and the longest liver of them successively one after another as they are writ in order And the question was whether this was a remainder or no and it was held to be a remainder upon the reading of the Record but if the grant had been only successively not saying as they are named in the writing it had been naught because he could not tell who should begin THorold versus Hadden Trin. 11. Jac rotulc 451. In replevin a Juror was returned by the name of Payly and in the distress the name was T. P. and in the Pannell he was written Baily and tryed by that name of Baily and moved in arrest of Judgment for the mistaking of the name And the Court held that if the right name was sworn yet notwithstanding the mistake it was good for if the name in venire was not mistaken all was good and the Sheriff ought to amend his misprision and the Court demanded if any one could swear that Paly was sworn and one then present in Court made oath that Paly was sworn and the Court ordered that it should be amended
is not a fault in form which is helped by the Statute but it is a defect in matter and then the Jury having assessed intire Dammages for both the Trespasses and that no cause of Action is supposed forme the verdict was not good which the Court granted FReshwater vers Reus Mic. 2 Jac. tenant in tail convenanted to stand seised in consideration of a marriage to be had by his Son with the Daughter of J. S. to the use of himself his heirs untill the marriage be had afterwards to the use of himself for life afterwards to his Son and his wife the daughter of J. S. and the heirs of their bodies and suffers a recovery with a single voucher to that purpose they die without Issue and adjudged that the Entry of him in the Remaindant depending upon the estate Tail was lawfull for first there is no consideration to raise an use for the consideration is onely the marriage of his Son with a stranger the which as to the changing of the possession is not any benefit to the Father for he is as a stranger to that personall particular consideration but if the consideration had been for the establishing of the Land in his name and blood it had been good for that onely concerned the Father and the whole Court agreed that although it were an alteration of the Estate as to himself but not to strangers for if he had after such Covenant to stand seisedtook a Wife she should have had Dower In Trespasse the Proces is Attachment and Distress infinite but if nihil be returned Proces of Outlary lyes and if the Defendant be returned attached by such Goods and Chattels if the Defendant omit to cast an Essoine at the returne of the Writ of Attachment he shall forfeit the Goods by which he was attached but if he cast an Essoine he shall have a speciall Writ reciting the matter to the Sheriff to deliver to him his Goods or Cattell although he doe not appeare at the day of the adjournment of the Essoine And if the Defendant at the returne of the Attachment will appear without an Essoine he may and then he shall not forfeit the Goods And note the Essoine shall not be adjourned by from fifteen dayes to fifteen dayes And if the originall Writ be against many they shall have but one Essoine in personall Actions And if a Lord of the Parliament appeare not he shall forfeit an hundred pounds and upon issue joyned in this Action the Proces against the Jury is the Venire facias Habeas corpus and Distresse And if a Baron of the Parliament be a Defendant then if a Knight be not returned upon the Pannell the Defendant may at the Assises quash the Pannell and if at the Assises the Jury doe not appeare full to wit twelve men this may be supplyed by the Justices at the request of the Plaintiff and the Sheriff ought to returne two Hundreds at the least in this Action and so in every personall Action but foure in reall Actions for if a challenge be made Pro defectu hundredo if two be not returned the Jury shall remaine and a Distringas with a Decem tales shall be awarded returnable in Court but no circumstances shall be awarded in Court for if the Jury in Court doe not appeare full or are challenged for that the Jurors have no freehold and it be tryed a new Habeas corpus shall issue out with a Decem tales if it be desired And if the Jury appeare full in the Court and the Array be challenged either for that it was of the Plaintiffs denomination or that the Sheriff or under Sheriff who returned the Jury are of the Kindred of the Plaintiff or any other principall cause of challenge and this is confessed or tryed by two of the Jurors who have appeared being assigned and sworne by the Court to be tryers of the challenge who shall give their Verdict that the challenge is true then the Array shall be quashed and if he that arrayed the Pannell remaine Sheriff the Venirefacias de novo shall be awarded to the Coroners if there be no cause of exception against them or any of them by reason of Kindred or any other principall cause And if there be cause of challenge to any of them the Venire facias shall issue to the rest and his companion shall not intermeddle with the execution of it and if there be good cause against all then a Venire facias shall issue to Estizors to be appointed by the Court to returne the Writ but if the Sheriff who returned the first Pannell be removed then a new Venire facias shall issue to the Sheriff who shall be then in Office And note no challenge shall be made to the Array returned by the Estizors but by the Poll and if the Jury appeare full and no challenge be made untill twelve be sworne the Jury shall proceed to heare their Evidence and give their Verdict and if the Jury finde for the Plaintiffe then they shall give costs and dammages but if they find for the Defendant they shall finde neither costs nor dammages And the Judgement for the Plaintiff is that the Plaintiff shall recover his dammages found by the Jury and costs of suit but if the Jury find for the Defendant the Judgment is that the Plaintiff shall in t capiat per breve but if Judgement in this case had lyen a Nil dicit confession or Non sum informat then the Court shall award to the Sheriff a Writ to inquire of dammages and no challenge lyes to the Jury upon a Writ to inquire And if the Sheriff returne but twenty and one upon the Jury and twelve of them appeare and try the Issue and give a Verdict it is a good Verdict but if onely ten or eleven of them appeare and the Jury be made up at the Assises De circumstantibus and the Issue be tryed and a Verdict given it is naught and not holpen by the Statute And if the Issue be joyned and the Sheriff be cozen to the Defendant the Plaintiff shall not have a Venire facias upon the challenge of Kindred of the Sheriff to the Defendant but it ought to stay untill that Sheriff be removed and another Sheriff made And if the Defendant be Lord of the Hundred within which Hundred the ten doth arise the Plaintiff may shew that and have a Venire facias to the next Hundred or if the Array be quashed for that cause he may have a Venire facias to the Coroners of the next Villiage in the next Hundred next adjoyning And note The Venire facias shall not issue to the Coroner but upon the principall challenge and if a challenge be to the Tales and that be found true the Tales onely shall be quashed and the principall Pannell shall stand And if an Issue be joyned between the Mayor and Commonalty of a City and another concerning a Trespass done within that
times used to have a Dispensation from the Archbishop and if the Incumbent in this Case should preach Heresie as the Attorney and Popham said the Ordinary might correct him for the parson is not exempted out of his Jurisdiction but his Parsonage onely but by Gawdy and the rest the Ordinary could not meddle with him for the Parson is priviledged in respect of the place but the Patron may commission and examine the matter and thereupon out and deprive him and so it happened in Coverts Case as Gawdy and Williams said wherein the Bishop of Winchester was the Donor of such a Donative 13 E. 4. LEe versus Lacon 3. Jac. In trespass the action was Land in the County of Salop and not guilty pleaded and the venire facias was made with a space for Salop but Salop was not named there And by vertue of that Writ the Sheriffe of Salop impannelled the Jury and found for the Plaintiff and the matter above specified was moved in Arrest of Judgment to wit that the venire facias was vicious and so a mistriall but by Fenner and Williams it was to be accounted his if no venire facias had been awarded And so indeed by the Statute of Jeofailes for the County to wit Salop is omitted and left out and so the Sheriffe of Salop had no power nor authority to summon the Jury because the Writ which is his Warrant is generall to the Sheriff and not naming of any County but the Court held it to be the best way to amend it and they put this difference For when the action is laid in Salop and upon a special pleading the issue is drawn into a forreign County there the entry and award of the venire upon the Will is speciall to wit to the Sheriff of that County where the issue arises to be tryed and in such case a venire facias with a blanâ—k shall not be good because it cannot be judged to which of the Sheriffs the venire was to be awarded and upon that incertainty it shall be naught but when the generall issue is taken or the matter is triable in the same County where the action is laid there the venire facias is awarded generally and must of necessity be intended to be the Sheriffe of that County where the action is laid and cannot be otherwise intended and for this reason it was but the default of the Clerk which is amendable and so it was amended BAylie versus Moon Trin. 3. Jacobi An action of Battery brought in Plymouth Court before the Major and Bailiffs there and not guilty pleaded but afterwards the issue was waived and Judgment was given for the Plaintiff and a Writ to enquire of damage was awarded to the Serjeant of the Mace that by the oath of twelve c. he should inquire and the Writ was made returnable at the next Court before the Maior and Baylifs And upon a Writ of Errour brought it appeared by the Record certified that the Writ to inquire of damages was taken before the Maior of Plymouth who was also Judg of the Court and for that cause reversed for the Writ warrants the inquiry to be before the Serjeant of the Mace who by the writ for that purpose is made a distinct Officer and so an inquiry before the Maior is not warranted by any writ And so by consequence a Judgment to recover those damages taxed before a wrong Officer to whom the Writ was not directed is erroneous which was granted by the whole Court LAxworth versus West Mich. 3. Jacobi Trespass brought for the taking of Hay severed from the ninth part of Elthorp in the County of Warwick the Defendant to part pleads not guilty and to the residue pleads a devise of the Parsonage made by Lepworth to the Defendant at Wapenbury in the same County and to inable the devise for tithes in L. alledges L. to be a Hamlet in Wapenbury to the intent that the whole Tithes may pass and upon a non devisavit the venn was of Wapenbury and found for the Plaintif that T. L. did not devise it and the other issue of not guilty found for the Defendant and moved in Arrest of Judgment that the venu was mistaken because it was of Wapenbury only and not of Elthorp and they of W. could not try a matter in E. And although it was answered that the Defendant himself by his plea had confessed that E. was but an Hamlet yet the Court held the venu mistaken for when the Plaintif declares of a Trespass in E. This by generall intendment is presumed to be a Village of which Village the matter which is there in question ought to be tryed and although the Defendant had alledged Elthorp to be but an Hamlet yet it was but to inable the devise and doth not extend to the issue before joyned upon the not guilty for part for in that issue both parties agree that Elthorp is a Village and it is a perfect issue taken which hath not any coherence with the other issue of non devisavit but if the Defendant had to the whole issue pleaded the devise as his excuse and had alledged E. to be an Hamlet of W. and that only been in issue there the venu awarded had been good of W. only but in this case it was adjudged that the venire was mis-awarded and that the Plaintif should have a venire facias de novo DElves versus Wyer Mich. 3. Jacobi The Plaintiff brought an action of Trespasse for breaking his Close and for cropping 200. Pear-trees and 100. Apple-trees and damage found to 40. l. And the Court was moved by Richardson for that the damages might be mitigated because he produced an Affidavit whereby it appeared that the party himself before the Action brought would have took 5 l. but denyed for the Court said that they could not diminish the damages in Trespass which was locall and therefore could not appear to them and the damages might well amount to 40 l. for cropping of an Orchard and so Judgment entred WOody's case Mich. 3. Jacobi Woody brought an action of false imprisonment and Battery against two who justifie and set forth that London is an ancient City and that the Maior of London is a Justice of Peace and that the Defendants were Serjeants of the Mace according to the custome of the City and that the Lord Maior to wit one Lee commanded them to arrest the Plaintif for causes to them unknown but to him known and to imprison him c. Walter moved that this Justification was insufficient because they only shewed that they were Serjeants at Mace duely elected according to the custome of the City but do not shew the Custome and Authority that they have to make Serjeants and to arrest as it is 4. H. 4. 36. in trespass the Defendant justifies that the Tower of London is within the City of London and time out of mind c. one Court was there used
c. and that the Plaintif was sued there by J. S. and that hee was summoned and upon a nihill returned a capias issued according to the Custome c. And that he being an Officer there did arrest and the Court ruled him to plead the Custome particularly for holding the Court and to prescribe c. And here it is shewn that the Maior is a Justice of Peace And it doth not appear whether he did it as a Justice of Peace or Maior as 14. H. 7 8. A Justice of Peace cannot command his servant to arrest one without a Warrant in writing in his absence And Popham chiefe Justice said That although the Judges knew the Authority of the Maior by which they arrested men yet because it did not appear to them judicially as Judges it must be pleaded And a Justice of Peace cannot command his servant to arrest one if not in his presence which was granted And Fennor Justice said that the servant is not an Officer to the Maior as he is a Justice of Peace but the Constable and Walker also added that the Plea was that the Maior commanded to imprison him presently without shewing any cause which was held naught for the maior ought to temper his Authority according to Law For the Judges cannot imprison without shewing cause but them and the Maior both may command an Officer to arrest a man without shewing the cause for else before he shall be examined he may invent and frame an excuse and the accessories will flye away And Williams Justice finds that it was incertain for the Plaintif by what authority he commanded it whether as Maior or Justice of Peace and his power as a Justice of Peace the Judges knew by common Law but his power as a Maior they knew not if it be not shewed by pleading and Judgement HVggins versus Butcher Trin. 4. Jac. The Plaintif declared that the Defendant such a day did assault and beat his Wife of which she dyed such a day following to his damage 100 l. And Serjeant Foster moved that the Declaration was not good because it was brought by the Plaintiff for a Battery done upon his Wife And this being a personall wrong done unto the woman is gone by her death And if the woman had been in life hee could not have brought it alone but the woman must have joyned in the Action for the damages must be given for the wrong offered to the body of the woman which was agreed And Tanfield said that if one beat the servant of J. S. so that he die of that beating the Master shall not have an Action against the other for the battery and loss of service because the servant dying of the extreamity of the beating it is now become an offence against the Crown and turned into Felony and this hath drowned the particular offence and prevails over the wrong done to the Mr. before And his action by that is gone which Fennor and Yelverton agreed to BRown versus Crowley Pasch 5. Jac. Action of Trespass brought against Croyley for wounding the Plaintif upon the hinder part of the left legge being rendred in Latin super posteriorem partem levis libaei and the Jury found for the Plaintiff And Harris moved in Arrest of Judgment for hee said that these words levis libaei made the Declaration vitious for the incertainty for he said that levis signified light and it was an improper word for left and that judgment ought to be respited for the incertainty And Yelverton argued that judgment ought to be given for the Plaintiff for he said the Declaration was not vitious for if the Plaintiff had declared generally that he had wounded broken or evill intreated him and had omitted those other words it had been sufficient and then the adding of those words which were not materiall but for damages did not make the Declaration vitious and he said that levus leva levum was Latin for left And whereas he hath said that he strook him super posteriorem partem levis libaei where it should have been levis libaei it was but false Latin and the Declaration shall not be made naught for false Latin And Popham said that hee shewing upon which part of the body the wound was were laid only to incense damages for the Declaration had been sufficient though they had been omitted And Justice Fennor agreed to Popham and he said it had been judged that where a man brought an Action against another for calling him strong Theife and the Jury only found that he called him Theife but not strong Theif yet the Plaintiff recovered for this word strong was to no other purpose then to increase dammages and Judgement was given for the Plaintif VIccars versus Wharton Pasch 5. Jac. Viccars brought an action of false imprisonment against Wharton and others and shews that he was imprisoned two dayes and two nights without meat or drink The Defendants come and shew that King Edward the 1. by his Letters Patents did incorporate one Village in Nottingham-shire with Bailiffs and Burgesses and that the King did ordain and make those Burgesses Justices of the Peace there and that the Defendant was Bailiâ—â— and a Justice of Peace there and that the Plaintiff did speak divers opprobrious and contumelious words of the Defendant by reason whereof they imprisoned him And shews further that the Bailiffs have used from the time of the making their Patent to imprison the disturbers of the Peace and it was held a naughty plea for a custome could not be shewn in such a manner And Tanfield held in this case that a man could not prescribe to be a Justice of peace but Justice Williams held he might prescribe to be a conservator of the Peace And Tanfield held that the King might grant that all the Burgesses and their Heires should be Burgesses which Justice Williams denyed HAll versus White Pasch 5. Jac. An action of Trespass brought against the Defendant for impounding the Plaintiffs Cattel the Defendant justifies for Common And upon that they were at issue in Derby-shire and the Jurors being sworn the Bailiff found one Bagshaw one of the Jurors rending of a Letter concerning the said cause and shewed it to the Judg and a verdict given by the Jury And this matter moved in the then Kings Bench to quash the verdict but denyed by the whole Court because the Letter and the Cause was not certified by the Postea and made parcell of it for otherwise the examination of that at the Barre after the verdict shall never quash it And so it was adjudged between Vicary and Farthing 39. Eliz. where a Church Book was given in Evidence of which you shall never have remedy except it be entred and made parcell of the Record BVtler versus Duckmonton Trin. 5 Jacobi In Trespasse upon a speciall Verdict the Case was that no demised Land to a woman if she should live sole and unmarried
try the Issue anew DOwglas against Kendall Mich. 8. Jacobi The Plaintif declared that the Defendant the 21. of January 6. Jac. by force and Arms thirty Loads of Thornes of the Plaintifs ready to be carryed in a place called the Common wast at Chipping-warden in the County of Norfolk did take and carry away to the Plaintifs damage of ten pounds the Defendant pleaded not guilty to all but to ten Loads and as to them that the place where c. contained one Acre of pasture and that one William Palmer was seised in fee of a Messuage and three quarters of a yard Land in C. aforesayd and that he and those whose estate he had in the sayd Messuage c. time out of minde were used to have for their farmers c. all the Thornes growing upon the sayd Acre of pasture to their use to be imployed and spent upon the sayd Messuage c. as appurtenant thereunto and the sayd ten Loads were growing and unjustly cast downe by the Plaintif upon the sayd Acre of wast and being ready for them to carry the Defendant as servant to Palmer and by his command took them and carryed them away and imployed them upon the House as it was lawfull for him to doe the Plaintiff by protestation that Palmer and such c. time out of minde had not the Thornes growing upon the sayd Acre of pasture parcell of the wast and that Sir Richard Saltonstall was seised of the Mannor of Chipping-warden whereof the common wast was parcell in fee and that he the 21. of January the sixth yeare of K. James granted license to the Plaintif to cut and carry away thirty Loads of Thornes mentioned in the Plea in barr growing upon the Wast by reason whereof they cut those ten Loads of Thornes growing upon the wasts and they were ready to be carryed by reason whereof they were possessed thereof untill the Defendants took them away and upon this Replication the Defendants demurred and adjudged against the Plaintif and there was a differance taken by the Court where a man claimes reasonable Estovers in anothers Soyle and where a man claimes all the Thornes in anothers Soyle for in the first case if the Owner of the Soyle shall cut downe the Thornâ—s first he that hath title to the Estovers cannot take them for the property and interest of all the Thornes continues in the Owner of the Soyle and the other hath onely Common there and if the Owner of the Soyle cut them downe all he that should have the Estovers shall have an Action upon the Case onely and not an Assise for when all the Wood is destroyed it cannot be put in seisin as the Abridgement of the Assise is fol. 21. And so it appeares by Sir Thomas Palmers Case Co. lib. 5. fol. 25. And if one grant an hundred Cords of Wood to be taken at the election of the Grantee and the Grantor or an Estranger cut downe the Wood the Grantee cannot take the Wood but must supply his Grant out of the residue for the Grantee hath but an especiall interest in part of the Wood and not in all but now in this Case the Defendant in right of Palmer claimes all the Thornes in the name of all the Thornes growing upon the sayd Acre of pasture and if he hath all Sir Richard S. cannot have any and so by consequence cannot license the Plaintif to cut any and so the whole interest is in Palmer and it is not in the nature of Estovers for Estovers is but parcell of the Wood and that to be taken to a speciall purpose and in this case it was agreed that although the Defendant had alledged an imployment of the Estovers yet since the Defendant had claimed all the Thornes and Trees the imployment is not traversable for he that hath the generall interest and property in Trees by custome or prescription cannot be restrained but may use them at his pleasure And see 10 E. 4. 2. and adjudged accordingly MAssam against Hunt Mich. 6. Jacobi A Copi-holder of a Messuage and two Acres in fee. The Lord grants and confirms the Messuage and Lands with the appurtenances to the Copy-holder in fee and whether he to whom the confirmation was made shall have by the usage as a Copy-holder common in the wasts of the Lord was the question and adjudged he should not for the Copy-holder by that confirmation is extinct and infranchiz'd for the words with the appurtenances will not create a common for at first the Common was gained by custome and annexed to the customary estate and is lost and perished with that for Common of its own proper nature is incident to a Copy-hold Estate FArmer against Hunt Hilar. 8. Jacobi An Action of Trespasse brought for chasing the Plaintiffs Cattle in such a Close the Defendant justifies taking damage fesant in his Free-hold The Plaintiff replies and shewes one grant of Common in the place where c. by the Defendant to the Plaintiff and that afterwards the Defendant had erected a reek of Corn and the Plaintiff put in his Beasts to use his Common and the Defendant chased them But note that the Plaintiff in his replication in pleading the grant of the Common by Indenture did omit the bringing it into Court. And by all the Judges the chasing of the Cattell by the Defendant is not lawfull for by such means he may defeat his own grant for by the grant of common in such a place the Grantee may use the whole Common And then when the Grantor erects a Reek of Hay upon part of the Common he had granted he will diminish the Common and tend to the enfeebling of his Grant which ought not to be for the Beast ought to range over the whole place and eate the Hay without doing any wrong for the wrong did first begin in the Grantor who is the Defendant of which he shall never take advantage And whereas hee hath erected one Reek of Corn hee may erect twenty and so the Beasts shall have no liberty of pasture there but because the Plaintiff did not shew to the Court the Indenture of the Grant which is the ground of his title for that very cause judgment was given against the Plaintiff DVrant against Child Hillar 9. Jaco An Action of Trespasse brought for chasing the Cattell of the Plaintiff and shews what Cattell and that the Trespasse was done at B. to his damage of c. The Defendant justifies the chasing in one Close called M. in B. which is his Free-hold and that the Cattell were there damage fesant The Plaintiff replies and shews that one B. is seised of one Close called Catley in D. in fee and made a Lease thereof to the Plaintiff for years and that the Defendant is seised of one Close called Fursey in Fee which lies next adjoyning to the Close called Catley and that the Defendant and all those whose Estate he hath in Fursey Close have used
1. Jac. Geo. Reading 10. Oct. 6. Jac. Milo Hobert 25. Dec. 13. Jac. Gulielmus Rolfe 11. May 1. Car. Jo. Gulston 23. Jan. 10. Jac. Henery Ewer 2. Oct. 16. Jac. Antonius Wright 6. Dec. 18. Jac. FINIS REPORTS A Second Part. OF Diverse Famous CASES in LAW as they were Argued as well upon the Bench by the Reverend and Learned JUDGES Coke Flemming Hobard Haughton Warburton Winch Nicholls Foster Walmesley Yelverton Montague Dodridge and diverse others in their respective Places as also at the Barr by the then Judicious Serjeants and Barristers of speciall Note Collected by RICHARD BROWNLOW Esq Prothonotary of the Court of COMMON PLEAS Very beneficiall for all such who are Studious to know LAW in its Power Act and Limitation Directivè and Usefull for all Clerks Attorneys c. In their Inter-Agendum's or severall Ministeriall Functions WITH A PERFECT TABLE SHEWING THE Remarkable matters Argued and Concluded in this Book Protag de Leg. lib. 5. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 LONDON Printed by Tho Roycroft for Matthew Walbancke at Grays-Inne Gate and Henry Twyford in Vine Court Middle Temple 1652. TO THE READER UPON the strict survey of Natures Products there is nothing to be found whether in the bosome of its Causes or in its Singularities within the Convexity of the Vniverse which being contemplated at an intellectuall distance beyond the Magnetick Effluvium of our Senses doth not felicitate with more certainty Nedum probability as more obsequious to the Prototype of its projection then MAN the very Cronologie of whose Errors doth compute his Existency an ingratefull returne for the dignity of his Essence which unmolested and freed from the Procacity of his Junior and Inferior faculties would have fixt him in the harmonious Orbe of his motion and have secured him as well against the scandall of a Planetique as the Ecclipse of his native glory But alas the doome is past Ex Athaeniis in Barathrum hee 's now benighted with Ignorance Phainomena's and Verities an Ignis fatuus and a Linck-boy are Eodem calculo which condition imposes upon him something more then Metaphorically the semblance of a Moth-flye which is in nothing so solicitous as in its owne ruine Neverthelesse had Privation in his Judgement been the onely losse hee could then have undergone but his Poâ—o di matto but his will and too too cereous Potestatives have Stigmatiz'd him in all his habitudes undiqueversum with a more reproachfull Sobriquet of Vellacazo teso in which shamefull state forgetting his Constitutive Nature and rudely breaking through his Divisive difference he seems now to be lost if perchance he is not found in the confused Thickets and Forests of his Genus where measuring his actions rather Ausa furosa by the Cubit of his strength he giddyes himselfe into a Maze of Inquietudes shuffling the Malefactor and Judge into one Chaire to make up the Riddle of all Injustice because all things are Just Hence was the no lesse opportune then needfull Venu of Cicero's Vir magnus quidem sapiens c. Hence the blissefull emergency of all Laws the limitting Repagula's of his Insolenoy and the Just Monuments of his Depravity But Hinc polydacrya he is yet so unwilling to forgoe his bainefull Appetite Reasons too potent Competitor that he is still perswaded he may safely act without controlment though like a Partridge in a Net he finds no other Guerdon for his Bussle then a more hopelesse Irretition And as if he were damned to be a â—ury to himselfe he will not admit that wholesome and thriving Councell That Obedience to Laws is a much more thriving peice of Prudence then Sacrifice and as much differenced as innocency and guilt ignorant of its expiation Whence I conceive by a just title to keep the World from Combats and the reward of vertue from Violation the wisest in all Ages have had the priviledge not onely of prescribing but of coacting the orders of Regiment amongst others who by necessary Complot have engaged for observance which somthing seems to repaire the loss yet so as by our Dianoeticks we have opportunity enough to see and like the Satyre in the Fable to feare our Idaeated Humanity although in a more sublime contemplation it may fall out otherwise in respect that the Law of Essences are more certaine and of a far more facile direction then those of existency which is so necessarily entituled to infinite Incertainty from Approximation of Accidents that it would now be an equall madnesse for the Governour to think he can or the governed to fancie hee should constitute Laws Adaequate to humane Velleity since the wills of no two Sons of Adam did ever Mathematically concenter nor were ever two humane Actions shaped with parallel circumstances which as it seems necessarily to import the deficiency of the Rule so also to imply the evident reason of Debating and Reporting of Cases in our Law And the denoting of Limitations in that of the Empire which first properly are or a notatione at least should be no other then Exceptions to the Rules generall from a due consideration of individuating circumstances For the Expediment of which knowledge this Gentleman the painfull Collector of these ensuing Relations for his owne benefit whilst yet living and for the good of others who by natures Decree should see his Pyre did think it Tanti to make his Observations Legible There now remaines nothing but thy Boni consule in which thou wilt oblige the Publisher to continue thy Freind in all like Opportunities R. M. Barr A Table of the severall Cases Argued and Adjudged A. ADmirall Court fol. 16 27 Agars Case 36 Andrews against Ledsam 49 Ayres Case 280 B. Butler against Thayre 29 Baxter against Hopes 30 Bushes Case 36 Blackdens Case ibid. Beareblock against Reade 39 Burdet against Pix 50 Bone against Stretton 51 Bedell against Bedell 58 Bearblock against Read 81 Burnham against Bayne 96 Barney against Hardingham 120 Brandons Case 122 Baynall against Tucker 134 Bishop of Ely 137 Brook against Cob 150 Bicknell against Tucker 153 Browning against Stel'ey 165 Bard against Stubbing 167 Bartons Case 215 Barwick and Fosters Case 220 Buckner against Sawyer 274 Bayly against Sir Henry Clare 275 Borough of Yarmouth 292 C. Cradocks Case 37 Cartwright against Gilbert 48 Canning against Doctor Newman 54 Crogat against Morris 55 146 Crane against Colepit 84 Crosse against Westwood 108 Charnock against Currey 118 Crew against Vernon 152 Charnock against Corey 153 Case of Cinque-Ports 191 Colledge of Physitians Case 255 Chamberlaine against Goldsmith 280 Cholke against Peter 289 322 Chapman against Pend'eton 293 Cesar against Bull 328 D. Daringtons Case 3 Dorwood against Brickenden 26 Doctor Conways Case 37 Doctor Husseys Case 59 91 Doctor Mannings Case in the Starr-chamber 151 Downes against Shrimshâ—w 182 Denis against More 299 Dunmole against Glyles 308 E. Enby versus Walcot 28 Earl of Cumberland and Hilton 108 Earâ—e of Rutland against the Earle of Shrewsbury 229
Canterbury shall not be avoidance of the said Canon and he agreed that a Canon against Statute Law or Common Law or any Custome shall not bind the Subject and agreed that so it had been adjudged in this Court But he denyed that the exposition of any Statute belonged to the Ecclesiasticall Court for the Statute is meer temporall though it concern spirituall things and it shall be expounded according to the Rules of the common Law see 5. Edw. 4. Keasors Case And so concludes that this suit was against the Statute of 23. H. 8. For it ought to have its beginning in the Court of the Bishop of London And this exposition of the Statute is made for the Defendant 94. Canon which was ex presly made against the Court of Arches and inflicts suspension by the space of three moneths upon the Judges which offend against it from their Office and awarded that Prohibition shall be granted and with that agreed Warburton and Foster Justices but Walmsley Justice was of contrary opinion that is that no Prohibition shall be granted by the Court of Common Pleas but in case where the Suit is there hanging And this was objected also by the Civilians And the opinion of the Judges of the Kings Bench cited to prove it but prohibition was granted that notwithstanding And to the objection that the Arch-Bishop of Canterbury may have a consistory in the diocesse of every Bishop this was denyed but only where he was the Popes Legate and thenas Legate heshall have Jurisdiction of all the Diocesse of England it was agreed that there were three sorts of Legats First Legates a Latere and these were Cardinalls which were sent A Latere from the Pope The second A Legate born and these were the Arch-Bishops of Canterbury Yorke and Ments c. And these said Legates may cite any man out of any Diocesse within their Provinciall then there is a Legate given and these have Authority by speciall commission from the Pope Daringtons Case DAringtons Case was cited before the high Commissioners of the King for maintenance of the opinion of Brownisme and for slandering of one Mr. Eland a Minister and also of the Judges of the Common Law and was sentenced that for the first he should make his submission before the said Commissioners and also for the second that he should make submission to Mr. Eland and confesse his offence to him and pray that he will forgive him and so for the third also that he should make submission and that he shall be committed to prison untill he perform the said sentence and put in security that he will not here after make a Relaps in any of the said offences and after he made submission for the first offence according to the sentence and upon complaint to this Court Habeas Corpus was awarded to the Keeper of the Prison in which he was to bring in his Body with the cause of his taking and detaining and he certified the causes aforesaid but not the Submission and these were the causes of the taking and detaining of the said Darington and it was prayed by Serjeant Nicholls that he might be delivered and Coke cheife Justice said that the Ordinary by the common Law nor by the Statute De circumspecte aegatis cannot imprison for any offence though it be for Heresie Schisme or other erronious crime whatsoever and then by the Statute of 5. R. 2. chapter 5. 2. Statute It was awarded that Commissions should be directed to the Sheriffs and others to apprehend such which should be certified by the Prelates to be Preachers of the Heresie and the Favourers Maintainers and abettors to keep them in strong Prison untill they will justifie themselves by the Law of the holy Church But this was repealed by 5 Ed. 6. 12. And 1 Eliz. 1. And also by the Statute of 2 H. 4. 15. It was ordained that none shall preach or write any book contrary to the Catholique faith or determination of holy Church nor shall make any conventicles of such Sects and wicked Doctrines nor shall favour such preachers Every Ordinary may convent before him any person suspect of Heresie An obstinate Heretick shall be burned in an open place before the People and this Statute was also repealed by 25 H. 8. And 1 Eliz. 1. By expresse words and then by the Statute of 1. H. 7. 4. Power is given to all Arch-Bishops Bishops and other Ordinaries having Ecclesiasticall Jurisdictions to commit Clarks Preists c. To Ward and Prison for Adultery Fornication Incest or any other fleshly Incontinency there to abide for such time as shall be thought to their discretions convenient for the quality and quantity of their Trespas and these were all the Statutes which give Authority to the Ordinary to imprison any man And when the Statute of 1 Eliz. 1. Repealed the first two Statutes of 5 R. 2. 5. and 2 H. 4. 15. It was not the intent that these offences should be unpunished but the Queen would not leave and trust the Bishop which was but a man and when he is made Bishop cannot be removed with such generall and uncontroulable Power and Authority and for that this power and Authority was transferred by the said Statute of 1 Eliz. 1. To high Commissioners which the Queen might countermand at her pleasure and appoint new and so it was transferred from one to many and this Stature did not intend to give other Authority to high Commissioners to imprison any man which the Ordinary himselfe had not before the making of the Statute of 1 El. 1. And it was not the intent of the makers of the said Statute and Act of 1 Eliz. To alter any Lawes but to transfer the power of one to others and it was resolved that for working upon holy dayes the party shall not be punished before the high Commissioners in Reimores Case and it was also resolved in Symsones Case by the Lord Anderson cheife Justice of the Common place and Glanvile they then being Justices of Assise in the same place that a Pursivant came with a Warrant of the high Commissioners to attach one by his Body for Adultery in a lay mans house and was sâ—ain with great deliberation and conference had with the other Judges that that was no Murder but Man-slaughter for they could not attach the Body of any man but ought to proceed by citation and excommunication But it was agreed that they might imprison for Brownisme for that was Herezie besides he maintaind that if the King do not govern his subjects as he ought that his Subjects may and ought to depose him and other such abhominable opinions and further that he might fine for that and he said that one Elyas Brown was hanged for that in the time of the last Queen for that that it doth not appear by the return that Darington hath himself conformed they could not deliver him for they ought to give credit to the return according to 9
Adultery as aforesaid and for that that he refused to become bound to performe the order and the sentence of the high Commissioners he was committed to the Fleete and he praied Habeas Corpus for his Inlargement and also a Prohibition to be directed to the high Commissioners and it was moved by Nicholls that fining is not Justifiable by the high Commissioners no more then Imprisonment he sayd that he was cited out of his Diocesse against the Statute of 23. H. 8. The which Statute is commanded to be put in execution by the Stat. of 1 El. Secondly the offence that is Adultry is not an Enormious-crime and for that shall not be punished by the high Commissioners as it appeares By the Statute of 1. El. But by the Ordinary Thirdly the high Commissioners by the Stat. of 1 El. ought to observe the same course and order in their proceedings that the Ordinary used before the making of the Statute of 1. El. c. That they could not fine nor Imprison But he agreed that the Statute 1 H. 7 gives authority to the Ordinary to Imprison for Adultery but then the person ought to be Ecclesiasticall so that he agreed if Sir William Chancey had been an Ecclesiasticall person the Ordinary might Imprison him for Adultery and for Allimony they ought to give no remedy if the Husband would inhabit together with his wife as he sayd Sir William Chancey desired But if the Husband refuse to dwell together with his wife or thrust her out of his house and will not suffer her to dwell with him then the Ordinary may compell the Husband to allow allimony for his wife but the high Commissioners ought not to proceed upon that for this is no erronious crime for by that the party shall loose his benefit of Appeale which he hath from the Ordinary to the Metrapolitan for here the party cannot appeale to any nor hath any remedy If the Queen will grant Commission to reneue and so he concluded that for that these matters appeare upon the returne of the Habeas Corpus to be the causes of his commitment he praied that Sir William Chancey might be delivered out of Prison and prohibition of staying the proceedings of the high Commissioners Doderidge the Kings Serjeant for the case of Sir William Chancey argued that the returne consisted of two parts That is Adultery and Allimony and to the manner of the proceedings he would not speake for he said that the Court had ajudged that the high Commissioners by the Statute of 1. Eliz. Ought not to proceed upon any offences but those which are Enormious but he intended that the offence at the first was not Enormious being but Adultery and Allimony yet when Sir William Chancey was sentenced for that before the Ordinary and then commuted his pennance and after that lived divers yeares in Adultery with two severall women and had two Bastards and then he became Incorrigible and by consequence the offence is become Enormious and is properly to be determined before the high Commissioners and so praied he might be sent backe and that no Prohibition should be granted and at another day Foster and Warburton said that the high Commissioners ought not to meddle with these matters Nor could not Fine nor Imprison for that But Walmesley said that the Statute of 1. Eliz. Hath referred that to the discretion of the King and the King by his Commission hath given them power to meddâ—e with that and also he seemed that this was an Enormious crime for this is against an expresse commandment that is Thou shalt not commit Adultery and he intends there can be no greater offence then that and it seems to him that the word Enormious ought not to be so expounded as it is expounded by the other Judges that is an Exorbitant crime but Enormious is where a thing is made without a rule or against Law for in every action â—f trespasse the word is used Et alia enormia ei intulit and yet these are not intended Exorbitant offences but other trespasses of the nature of them which are first expressed perticulerly and so the Statute hath been expounded for many yeares and to the Imprisonment he said that the high Commissioners have Imprisoned for the space of 20. yeares and though that the Statute doth not give power to them to Imprison yet this is contained within the Letters Patents and the statute hath given power to the King to give to them what authority he pleaseth by his Letters Patents and for that that it hath been used for so long a time he would not suddainly alter that but gave day till the beginning of the next Tearm for the argument of that Coke cheif Justice said that it was agreed by all that the Imprisonment was unlawfull and if a Person be imprisoned which hath the Priviledge of this Court this Court may deliver him without Bayle for the King is the supream head by the Common Law as to the coercive power and that the Letters Patents of the King cannot give power to imprison where they cannot imprison by the Common Law and so it was adjudged in Sympsons Case 42. Eliz Which was cited before the high Commissioners for adultery with Fists Wife and adjudged there that they cannot imprison for that and he saith that an exposition with the time is the best and for that see the ninth of Eliz. Dyer and the 18 of Eliz. And also it appears by the Statute of 5. Eliz. that awards a Capias excommunicatum which could not be imprisoned before that and upon this Sir William Chancey was bayled and after by meditation of the Metrapolitan he was reconciled to his wife and this was the end of this Businesse Pasch 9. Jacobi 1611. in the common Bench. As yet Urrey against Bowyer HVtton Serjeant argued for the Defendant the question is if lands which were parcell of the Possessions of the Hospitall of Saint Iohns of Jerusalem should be discharged of tythes by the statute of 31. H. 8. or 32. H. 8. in the hands of the Patentee and he seemed that the priviledge was personall and annexed to persons of the said order for it is confessed that it came by reason of the order of the Cestercians as appeares by the Canon The words of which are that they should hold their lands c. Also it appeares by the statute of 2. H. 4. 4. That it is personall by which it was enacted that the religious of the order of Cestercians that had purchased Bills to be discharged to pay tythes should be in the state they were before by which it appeares that it is annexed to their persons and not to their lands so that their Farmers cannot take benefit of that Secondly the priviledge was annexed to this order by canon which is a thing spirituall and hath no power to meddle with the lands of any man but the proceeding of that ought to be by inhibition or excommunication see 11. H. 4. 47. 19.
Immunities c. of what nature c. be they Ecclesiasticall or Temporall which appertain and belong c. by or in the right of their Religion but the Priviledges and Immunities they have in the right of their Religion and these the Statute of 32. H. 8. gives to the King and there is no cause that they should surmount or that the Statute should give to them more favour then the former Statute hath given to those religious houses which were dissolved by the Statute of 31. Eliz. For the Hospitallers of S. Johns were favourers and maintainers of the Popes Jurisdictions as well as the others as it appears by the Statute of 32. H. 8. Also the words of 32. H. 8. hath only the words of the King and his Successors and doth not speak of his Assigns which words are expressed in the Statute of 32. H. 8 But it is provided by 32. H. 8. that the King cannot use at his will and pleasure which amounts to so much Also the Statute of 31. H. 8. extends to all Religious houses by expresse words and it shall not be intended that the intent of the makers of the statute was to omit that which were to be of the Order of S. Johns of Jerusalem when the mischeif was in equal degree And it hath been agreed that they are religious persons and that they were under the obedience of the Pope for so they are described in the statute of 17. R. 2. by which the possessions of the Templers was transferred to them so that on the matter they are religious which shall not be intended so largely as every Christian may be said religious but Secular and Regular which vow Obedience Chastity and Poverty and for the proof of this he cyted a president Also it seems to him that the Statute of 30. H. 8. extends to those Lands which come to the King by the statute of 32. H. 8. And it is not like to the Arch-Bishop of Canterburies case 2 Coke 47. upon the statute of 1. Ed. 6. For that Statute gives the Lands to the King for other causes and not for the same causes which are contained in the Statute of 31. H. 8. But the Statute of 32. H. 8. is for the same cause and with the same respect to Religion But if these Lands have come to the King by Exchange or by Attainder then they shall not be intended to be within the Statute of 31. H. 8. But if another Statute be made in 32. H. 8. by which all Religious houses have been given to the King this shall be intended within the Statute of 31. H. 8. And the Judges before whom the cause depended judicially ought not to be ignorant of that and so he prayed that a Prohibition might be Shirley Serjeant for the Defendant at another day in Trinity Tearm 9. Jacobi argued that the question only depended upon the Statute of 32. H. 8. upon which the Prohibition is founded with the Statute of 31. H. 8. by which the Lands of Monasteries are given to the King do not extend to those Lands which are given after by Parliament But he intented that the Constitution which discharges the Templers of the payment of Tithes is spirituall and extends only to spirituall persons which may prescribe in not tything see 38. Ed. 3. 6. 2 of Coke the Bishop of Winchesters Case 44. Also he intended when an appropriation was made to the Templers that this is determined by dissolution of their Order So upon the Statute of H. 5. of Priors Aliens which have Impropriations or which have Rent issuing out of them and after the Impropriation is dissolved the Rent is gone for the Impropriation is dissolved Also he took exception to the pleading for that that it is only a branch of the Statute of 32. H. 8. And then by vertue of the premises he was seised which is not good and so hee concluded that it was a good cause of demurrer upon the Prohibition and prayed consultation Barker Serjeant for the Plaintiff seems the contrary and yet he agreed that he could not take benefit of the Statute of 31. H. 8. for that that these Lands came to the King by another Statute but he relyed upon the words of the 32. H. 8. which was made only for the dissolution of the Hospitall of St. Johns of Jerusalem Tythes are as ancient as any thing that the Church hath and before that any Law was written for Abraham payed Tithes to Melchisedeck but it doth not appeare that he paid the tenth part but Tithes are due by the Judiciall Law of God and the King hath power to appoint what quantity shall be paid But at the beginning there were Sacrifices Oblations and Tithes And it was ordained by Edgar King of this Realm that Tithes should be given to the Mother Church Also Edmund Ethelstone William the Conquerour and the Councell of Magans specially provided that Tithes should be paid but did not appoint when they should be paid But the first Law which appointed the quantity was made in the time of Edw. 1. and this ordained when they ought to pay the Tenth with the feare of God And it was resolved in Fox and Cresbrooks case in the Commentaries after severance they are temporall and Action lyes against him which carries them away as of Mortuary as it is resolved 10. H. 4. 1. 6. And before the Councell of Lateran every one might pay his Tithes to what person he would and then were paid to Monasteries as Oblations But of Tithes which are due to any by prescription hee which payes them hath no such election but ought to pay them to him which claims them by prescription 14. H. 4. 17. If a Parson of a Parish claim Tithes in another Parish as portion of Tithes due by prescription to his Rectory he ought to shew the place specially So if Nunns prescribe to have a portion of Tithes they ought to shew the place for it is a question if they are spirituall or not for their office is only to pray in their house 24. Ed. 3. So the book of Entries if a man claim Tithes to his Pupil he ought to shew in what place the Tithes lye in the 17. Ed. 2. The order of the Templers was dissolved and their possessions annexed to St. Johns of Jerusalem and they did not claim by any Bull of the Pope nor other spirituall Canon but by prescription which is priviledg and private Common law and this appears by the Statute of Westminster 2 Chap. 47. That is that they are conservators of his priviledges Also he saith that the Statute of 2. H. 4. discharges Farmers without speaking of Priviledges And the Statute of 7. H. 4. 6. useth the same words which are contained in the Stat. of 32. H. 8. That is that none shall put in execution any Buls containing any priviledges to be discharged of payment of Tithes And Mephams Canon in time of Ed. 1. saith Let the custome be
observed with the feare of God And another Canon That custome of not Tything or of the manner of Tything if they paid lesse then the tenth part see Panormitan upon that seek of the Case between Vesey and Weeks in the Exchequer upon the Statute of 27. H. 8. for the dissolution of small Monasteries Also the Lord Darcy in quo warranto was discharged of purveyance by Patent granted by the King Edward 6. of such priviledges which such a one had and by the same reason the King shall be discharged of Tythes by the Act of Parliament also he remembred the Book of 10. Eliz. Dyer 277. 60. to be resolved in the point and also 18. Eliz. Dyer the Parson of Pekerks case 399. 16. upon the Statute of 31. H. 8. and so concluded and prayed judgment for the Plaintiffe and that the Prohibition should stand and it was adjourned Trinity 9. Jacobi Priddle against Napper UPon a speciall verdict the cause was The Prior of Mountague was seised of an Advowson and of divers acres of Land and the 20. of H. 8. the King licensed him to appropriate that and 21. H. 8. the Bishop which was Ordinary assented and after that the Church became void that the Prior might hold it appropriate and 27. H. 8. the Incumbent dyed so that the Appropriation took effect and was united to the possession of the Rectory Appropriate and also of the Land out of which Tythes were due to the said Prior in respect of the said Rectory and then the Priory is dissolved and the Impropriation and the Lands also given to the King by the Statute of 31. H. 8. which granted the Impropriation to one and the Lands to another And if the Patentee of the Land shall hold it discharged of the payment of Tythes in respect of that unity was the question And Harris Serjeant for the Defendant in the Prohibition that the unity ought to be perpetuall and lawfull as it was adjudged between Knightley and Spencer 2 Coke 47. a. cyted in the Arch-Bishop of Canterburies case and for that unity by or by lease for years or for two or three years as in the case at the Barre shall not be sufficient to make discharge of the payment of Tithes and so it was adjudged Pasche 40. Eliz. Rot. 454. between Chyld and Knightley that is that the unity of the possession ought to be of time that the memory of man doth not run to the contrary And in the argument of this Case it was said by Popham cheif Justice that if no Tithes were paid after the Statute that then it shall be intended that no Tithes were paid before the Statute and so he concluded and prayed Consulation see 2 Coke 48. a. The Arch-bishop of Canterbury for the reason by which unity of possession is discharged of payment of Tithes that is for that that some houses of Religion were discharged by Buls of the Pope and many were founded before the Councell of Lateran and for that it shall be infinite and in a manner impossible to find by any searches the means by which they are discharged the unity is no discharge in respect of it selfe for the reasons aforesaid and none may know if Tithes were paid or not before the union And if Tithes be not paid in time of memory by a house of Religion and they lease of that for years and receive Tiths then the lease expiâ—es two yeares before the Dissolution of the same house the King shall not be discharged of the payment af Tithes by the Statute of 31. H. 8. by Coke and Walmesley against Warburton and Foster Dorwood against Brikinden UPon the Statute of 5 Ed. 3. a man libelled in the Spiritual Court for Wood cut and a Consultation was granted Yet the Defendant in the Court Christian might have a new Prohibition if it appeared the first Consultation was not duly granted So if a man libell for Tithes for divers years and Prohibition is granted for part of the years and after that a Consultation is awarded yet the Plaintiffe may have a new Prohibition for the residue of the time notwithstanding the Statute of 50 Ed. 3. and that it be upon one selfe same libel Admirall Court NOte that the Admirall cannot imprison for any offence but if the Court hath Jurisdiction of the Originall cause and sentence is there given this sentence may be executed upon the Land 19. H. 6. But no Ordinary may meddle out of his own Diocesse 8. H. 6. 3. 2. H. 4. The Parson of Salt-ashes Case That this Court tooke notice of Jurisdiction of all Ecclesiasticall Courts and Ordinaries for they write unto them for tryall of Bastardy and Matrimony And there are 3. Legates First a born Legate as the Arch-bishop of Canterbury and Yorke Remes and Pylazam Second a Latere as all Cardinalls The third a Lagate given as those which have their Authority by commission and Lynwood Provinc saith that the Arch-Bishop of Canterbury as Arch-Bishop cannot meddle out of his Diocesse of Canterbury and his Peculiars but as a Legate borne which is in respect of his Office he hath prerogative and if a man inhabit in one Diocesse and ought to pay tithes to another which inhabits in another Diocesse there the Ordinary ought to prefer the suit to the Metrapolitan but seek what Ordinary shall transfer it Trinity 9. Jacobi 1610. in the Common Bench. Jones against Boyer HEnry Jones Parson of Bishopton sued Bowen the Executor of Holland the last Incumbent in the Arches for Dilapidations upon which a Prohibition was prayed upon the statute of 23. H. 8. for that that it was sued out of his Diocesse which was Saint Davids but it appears that the Vicar generall of the same Ordinary hath made generall request to the Metropolitan to determine that without shewing any cause speciall and if the inferiour Ordinary may transmit any cause but only for the causes mentioned in the statute of 23. H. 8. And if the causes ought to be expressed in the Instrument was the question note that the generall words of the statute of 23 H. 8. chap. 9. Rastall Citation 2. are afterwards many particulars or in case that any Bishop or any inferiour Judge having under him Jurisdiction in his own right and title or by commission make request or instance to the Arch-Bishop Bishop or other inferiour Ordinary or Judge to take treat examine or determine the matter before him or his substitute And that to be done in case only where the Law civill or Canon doth affirm execution of such request or instance of Jurisdiction to be lawfull or tollerable and for the better discussing of this question the Judges had appointed to heare two Doctors of the Civill Law which at this day attended the Court the first Doctor Martin said that these generall words have reference to the Executor and not to the maker of the request and this request may be made for all causes but ought to be made to him which hath
of his confirmation and not by the first see 11. R. 2. Grants 9. Ed. 3. 4. 12. R. 2 Feoffments 58. See Perkins fol. 8. b 9. a. Grants 10. Eliz. Dyer 279. 4. Hillary 8. Jacobi 1610 In the Common Bench. Styles against Baxter STyles brought an Action upon the case against Baxter for calling him perjured man the Defendant justified that he was perjured in such a Court in such a deposition and so pleaded that certainly and it was found for the Defendant at the Nisi prius and Judgment was given accordingly and the Defendant afterwards published the same words of the Plaintiff upon which he brought a new Action for the new publication in which the Defendant pleaded in Barr the first Judgment upon which the Plaintiff demurred and it was adjudged without any Contradiction that it was a good Barr. Hillari 8. Jacobi 1610. In the common Bench. Andrewe against Ledsam in the Star Chamber ANdrewe exhibited his bill in the Star Chamber against Ledsam the matter Andrew being a rich Usurer delivered to Ledsam being a Scriâ—ener one thousand pound to be imployed for him for Interest that is for ten pound for the use of every hundred pound for every yeare Ledsam being a Prodigall man as it seemes spent the Money and delivered to Andrewe diverse severall obligations every of them containing three severall persons well known to be sufficient being some of them Knights others Gentlemen and Esquires of great Estates and the other good Citizens without exceptions were bound to Andrewe in two hundred pound for the payment of one hundred sixty pound to Andrew at a day to come within six Moneths then next comming as Andrew had used before to lend his Money and delivered the Obligations with Seales unto them and the names of the parties mentioned to be bound by that subscribed and his own name also subscribed as witnessing the sealing and delivery of them as a publique Notary aâ— the good and lawfull obligations of the Parties which were mentioned in them where indeed the parties mentioned in them had not any notice of any of them But Ledsam had forged and counterfeited them as he hath confessed upon his Examination upon Interrogatories administred by the Plaintiff in this Court and at the hearing of the Cause and sentence of that it was moved if Ledsam shaâ—l loose both his Eares or but one for if it be but one forgery then by the Statute of 5. Eliz. Admitting that the Bill is grounded upon this Statute he shall loose an Eare and pay the double dammageâ— and cost to the party greeved And also if Andrew being but the Obligee and not any of the parties in whose names the Obligations were forged if he be such a party greived which shall have double costs and dammages and these doubts were resolved by Coke cheife Justice of the Common Bench where they were moved and Flemming cheif Justice of the Kings Bench that Ledsam should loose but one eare for that shall be taken as one forgery for that it was made at one time and also that Andrew was the party greived within the Statute but Coke said that the Bill was generall that is against the Lawes and Statutes of the Realme and not precisely upon the Statute of 5. Eliz. For he said that when a Bill is founded upon an Act of Parliament that this ought to containe all the branches which are mentioned in the Act the which wants in this Bill but insomuch that it was adjudged in Parliament what punishment such offenders shall have they inflicted the same punishment which is appointed by the Statute and added to that that he should be Imprisoned till he found good Suerties for his good behaviour and also that hee shall be brought to every one of the Kings Courts at Westminster with great Papers in his hatt containing his offence in Capitall letters but the Lord Chancellor expounded the double dammages in such manner that is that they shall not be intended double Interest but only the Principall Debt Note that if Execution be directed to a Sheriffe to Arrest any man or to make Execution within a Liberty And the Sheriffe direct his Warrant to a Bayliffe of the Liberty for to make Execution of the Processe which makes it and after is a Fugitive and not able to answer for that the Lord of the Franchise shall answer for that and shall be liable to answer for his Bayliffe by all the Justices Burdett against Pix IN Debt upon a single Bill by Burdett against John Pix as administrator of Freewen the case was this that is Freewen was bound in an Obligation of thirty four pound to Burdett the Plaintiff and was also bound to one William Pix in 80. l. Freewen dyed Intestate and the Letters of Administration of his Goods were Committed after his Death to the said John Pix the Defendant and the said William Pix also made the said John Pix the Defendant his Executor and died and the Defendant in this Action pleads that the said Freewen was indebted to the said William Pix and that he was his Executor and that he had Goods of the said Freewens sufficient to satisfie the said debt the which he retained for the satisfaction of that and that over that he hath not of his to satisfie him upon which the Plaintiff Demâ—…or that that the Defendant doth not plead that he hath â—…is election to retaine the said goods for the satisfaction of â—…own said Debt before the Action brought and by all the Justices he ought to make his election before the bringing of the Action otherwise he shall be charged with the other Debt See Woodward and Darcyes Case Commentaries 184. a. and 4. Cook 30. Coulters Case Hillary 8. Jacobi 1610. in the Common Bench. Bone against Stretton THe case was this A man seised of two Acres of Land makes a Lease for years of one Acre to one and another Lease for yeares of the other Acre to another and then he enters and makes a Feoffment and severall Liveryes upon the severall Acres and one of the Lessees being present doth not assent to the said Livery and the use of the said Feoffment was not the use of his last Will and then he declares his last Will and by that recites the said Feoffment and then declares the use of that to be to the use of himself for life the remainder over to a stranger and after the Tenant for years which did not assent to the Livery grants his Estate to the Feoffor and the Feoffor dies and Nicholls Serjeant moved first That this enures as a grant of a reversion and that the grant of the perticuler Tenant enures first as an Attornement and then as a surrender of his Estate as if it had been an expresse surrender and all the Justices agreed that this doth not enure to make Attornement and surrender as expresse surrender will for an expresse surrender admits the reversion to be in the Grantee to whom the surrender is made
of Norfolke and Marshall and their Authority and Jurisdiction was absolute and their Judgements not reversable unlesse by Parliament and this appeares by the Statute of 5. Ed. 3. chap. 2. that they might hold Plea of things which did not concerne them of the household and also the words of the Statute of Articuli super chartas chap. 3. 28. Ed. 1. provides that the Marshalsey shall not hold Plea of free hold of covenant nor of any other contract made between the Kings people but only of Trespasse made within the Kings house or within the Verge and of such Contracts and Covenants which one of the honse made with another of the house and within the house and in no other place where Trespasse is Limited to the Kings house or within the Virge but no restraint that the parties shall be of the Kings House or otherwise it shall not be intended which shall be only those which are of the Kings House insomuch that the Trespasse is limited to be made within the Virge also he sayd it was a statute made 30 Ed. 1. which provides that if any causes arise amongst the Citizens of London only that this shall be tryed amongst the Citizens but if it be between them of the House it shall be tryed by them of the House by which it appears that they may hold plea between Citizens of London where none of the parties are of the Kings House also the statute of 6 Ed. 3. chapter 2. provides that in Inquests they shall be there taken by men of the Country adjoyning and not men of the Kings Houshold if it be not betwixt men of the Kings Houshold if it be not for Contracts Covenants and Trespasses made by men of the Kings Houshold of one part and that the same House which referrs to the statute of Articuli super chartas before cited and this expounds and so the Statute of 10 Ed. 3. chapter 2. provides that in Inquests they are to be taken in the Marshalsey that the same inquests shall be taken of men the Country thereabouts and not by People of the Kings House if it be not of Covenants Contracts or Trespasses made by people of the same House according to the Statute made in time of the Grand Father of the said now King and according to that the use hath been that is if none of the parties of were the Kings house then the tryal had been by the men of the country adjoyning And if one of the parties be of the house and another not then the tryall is by party Juries and if both the parâ—ies be of the house then all the Jury hath used to be of the house and if the Cause be between Citizens of London then the tryall hath used to be by Citizens of London and in the Book of Entries the same plea was pleaded in false Imprisonment 9 10. and the Register fol. 1 1. A. in action upon escape in Trespasse and to the Books of 7 H. 6. 30. 10 H. 6. Long 5 Ed. 4 19 Ed. 4. 21 Ed. 4. He saith that none of these Books are in action of Trespasse but one onely and that is mistaken in the principall point and so may be mistaken in one by case And the Booke of 10 H. 6. 30. is directly in the point but Brooke in abridgement of that saith that the practise and usage of the Court was otherwise But it may be objected that this is Indebitatus assumpsiâ— which is in nature of an action of debt and founded upon contract he said that Fitzherbert in his Natura Brevium said that there are two sorts of Trespasses that is General and upon the Case and Trespasse is the Genus and the other are the Species and that the action is founded upon breach of promise which is the Trespasse as for not making of a thing which he hath promised to doe and it is Majesteale breve and not breve formatuâ— and so is an action of Trover and Conversion or Assumpsit are Writs of Trespasse but admit that no yet action of false Imprisonment doth not lye for hee ought not to dispute the authority of the Court for the duty of his Office is only to be obedient and diligent for otherwise he should be judged of the Judg And who by the appointment of the Judge doth any thing doth not seem to do it deceitfully because it is of necessity he should obey and 14 H. 8. 16. a Justice of Peace awarded a Warrant to arrest a man for suspition of Felony where his Warrant was void and yet the party to whom it was directed justifies the making of the Arrest by force of that And 12. H. 7. 14. Capias was awarded to the Sheriff without original yet it was a sufficient Warrant to the Sheriffe and 22 Assis 64. Court awarded a Warrant where they had no Jurisdiction and yet it was a sufficient Warrant for him to whom it was directed And so in Mansells case if the Sheriffe execute an habere facias sesinam awarded upon a void Judgement this is a sufficient Warrant for him So in this case allowing that the Court hath no Jurisdiction yet the Plaintiff cannot be retained by this action but is put to his Writ of Error or to his action upon the Statute and so he concluded and prayed Judgment for the Defendant Hutton Serjeant for the Plaintiff argued to the contrary and hee intended that Judgment should be given for the Plaintiff for the matter and also for the Parties and that the Judgement and all other proceedings in the Marshalsey were meerly void and he denyed that they had originally such absolute jurisdiction as Fleta pretended for originally that was only for the preservation of the peace as it appears by the stile of the Court and also by the diversities of the Courts and that Criminall causes which require expedition are there only tryable and that civill causes are incroached of later times and it was necessary to be restrained and reformed by Parliament And it appears by the Statute of Articuli super Chartas that they have encroached to hold plea for free-hold and for that the Court which is mentioned in Fleta cannot be otherwise intended then the Kings Bench which then followed the Kings Court And also that they have not incroached only upon matters as to hold plea for Free-holds but also to persons and place where Contracts and Trespasses were made and this was the cause of the making of the said Statute And to this action of Trespasse for indebitatus assumpsit there begun he intended that it is for another thing of which they could not hold plea and it might be criminall for Civill is that which begun by contract and it is part of the commutative Justice for which is recompence given by one party to another and is not founded upon the Contract but is translated to an action of Trespass which manner of Trespass is not within the Statute and so he intended that
awarded good because it comes in Lieu of Goods which they had as Executors and shall be Assets in their hands as the Goods should have been and for that it is well brought in the Detinet only And they said that in the principall case it shall be mischeivous if the Action shall be brought in the Debet and Detinet for it may be the Rent reserved is of more worth then the Profits of the Land will amount unto and that the Executors or Administrators have no other Assets now shall be the Executor or Administrator be charged with his own proper Goods which shall be mischeivous and the case of 10. H. 7. 5. and 6. that is direct in the point was often times cited and all these three things which were of councell with the Defendant informed the Court that they were of Councell with Hargrave when the Judgement given in the Kings Bench was reversed for Error in this very point and for this cause because the Action was brought in the Debet and Detinet where it should be in the Detinet only And so they praied that the Judgement should be hindered But by the whole Court except Yelverton And so it was adjudged that the Action was well brought as it is and especially for the reasons given in Hargraves Case 5. Coke 31. And to that which hath been said by Yelverton Justice that in all cases where Executors are charged by the name of Executors or Administrators that there the Action shall be against them in the Detinet only Flemming cheife Justice answered that â—rue it is in all personall things where they are named as Executors Action shall be in the Detinet But as it is an Action of Debt for Rent reserved upon a Chattell reall and an Executor is as an Assignee in Law and so charged as privy in Estate and not meerely as Executor and if he have no more Assets then the Rent which he is to pay he may plead nothing in his hands against all the World and to that that hath been said that the Executor hath been charged of his own Goods If the profits be not more then the Rent or the Rent more then the profits to this he said that in this case where the Executor hath the Tearme and hath not any other Assets that they may wave this Tearme And in Action of Debt brought against him for the Rent may plead to the occupation and that recover The reason of the diversity between this case and the case of 28. H. 8. Dyer 14. is plain for in an Action of Debt against the Termor himselfe Non habuit nec occupavit is no Plea for there was a contract between them and for this privity of contract is the Lessee charged though he did not occupy But in the case of an Executor the privity of the contract is gone and so may be a difference But yet it seemes if he have Assets sufficient to pay the Rent he cannot wave it And to the case 14. H. 4. 28. that hath been cited that doth speake nothing how the Action should be brought And the Justices have seen the record of Hargraves case and the Reversall of that And they said the same error which was in Hargraves case is in this case and for that bring your Writ of Error in the Exchequer chamber if you will for we so adjudge And then it was moved that the Lord Rich was Tenant in Tayle of part of the reversion and Tenant in Fee-simple of the other part and so it seemes that he ought to have two Actions because he hath as two reversions But it was resolved by all the Court that if a man have a reversion of part in Fee-simple and of the other part in tayl and makes a Lease for yeares rendring a Rent he shall have but one Action both being in the hands of one But otherwise it had been if the reversion had been in severall hands they should not Joyne in Debt and for that Fenner put this case two Coparceners are of a reversion and they make partition now the Rent is apportioned and they shall sever in Debt But if one dies without Issue and the part discends to the other Parcener now he shall have but one Action of Debt againe and so it is if a man makes a Lease of two Acres rendring Rent and after grants the reversion of one Acre to J. S. and of the other Acre to J. N. now they shall sever in Debt for this Rent but if J. S. and J. N. Grant their reversions againe to the first Lessor he shall have but one Action of Debt and so the exception dissalowed by all the Court and the Judgement given for the Plaintiff according to the Verdict Yates and Rolles THe case was this J. S. covenants by Indenture with J. N. I. D. and A. B. to enter Bond to pay ten pound to J. N. and J. N. dies and his Administrator brings a Writ of covenant and the question was insomuch that this ten pound was to be paid to J. N. if his Administrator shall have Action of Covenant or if the Action shall survive to the other two and it was moved by Stephens that the Action shall be well brought by the Administrator for this shall be taken as a severall covenant and this now is in nature of a Debt and enures only to him which shall have it also the payment of the money which is the effect of the covenant shall be to him only Ergo the Damages for the not performing of it shall goe to him also and by consequence to his Administrator But it was adjudged insomuch that this was a joynt covenant that this shall survive to the others and not well brought by the Administrator So also resolved that insomuch that the words are that he would enter Bond and doth not say to whom that this shall be intended to the Covenantees and though that the Solvendo is but to one of them yet that is very good as an Obligation made to three Solvendum to one of them is good by Fenner and by Williams Obligation to two Solvendum ten pound to one and ten pound to another both ought to joyne in Debt upon this Obligation and Judgement for the Defendant Sammer and Force THe Case was this The Lord of a Copy-hold Mannor where Copy holders are for life grants Rent-charge out of all the Mannor one Copy-hold Escheats the Lord grants that againe by Copy the question was If the Grantee shall hold it charged or not and by the whole Court but Fenner he shall not hold it charged because he comes in above the Grant that is By the custome the same Law of Statutes Recognizances or Dowers but the 10. of Eliz. Dyer 270. by the whole Court that he shall hold it charged but this hath been denyed for Law in a Case in the Common Bench between Swaine and Becket which see Trinity 5. Jacobi But to Coke Justice it seemed that
Subject may do it but till he be delivered by due course of Law for the commitment is not absolute but the cause of that is traversable and for that ought to justifie for speciall cause for if the Bishop returnes that he refuses a Clark for that he is Schismaticus Inveteratus this is not good but they ought to returne the particuler matter So that the Court may adjudge of that Though it be a matter of Divinity and out of their Science yet they by conference may be informed of it and so of physick And they cannot make any new Laws but such only which are for the better government of the old and also he said plainly that it appeares by the Statute of 1. Marie That the former Statutes shall not be taken by equity for by these the President and Commons have power to commit a Delinquent to Prison and this shall be intended if they shall be taken by equity that every Goaler ought to receive him which is so committed But when it is provided by 1. Marie specially that every Goaler shall receive such offenders That by this appeares that the former statute shall not be taken by equity And so he concluded that Judgement shall be entred for the Plaintiff which was done accordingly Trinity 7. Jacobi 1609. In the Common Bench. IN Debt upon escape brought by John Guy an Attorney of the Common Bench by an Attachment of priviledge against Sir George Reynell Kt. Deputy Marshall of the Prison of the Kings Bench the Defendant pleads his priviledge that is that he was Deputy Marshall and he ought not to be sued in other Court then in the Kings Bench according to the ancient Custome and Jurisdiction of the sayd Court upon which the Plaintiff demurred and upon argument of both parties it was adjudged that the Defendant should not have his Priviledge and the principall reason was for that the Plaintiff was an Attorney and ought to have his priviledge in the Common Bench and for that that this Court was first possessed of the Suit it shall not be stayed because of the Priviledge of the Defendant in another Court see 9 Ed. 4. 53. the last case where it is agreed that one of the Courts may send Supersedeas to another for there it is agreed that if an Accountant in the Exchequer be sued in the Common Bench he shall send Supersedeas to them to surcease and if he be sued in the Kings Bench these of the Exchequer will shew the Record that he is accountable for they cannot make Supersedeas to the King and the Plea is there held Coram Rege c. And he shall be dismissed for he may be sued in the Exchequer and also 10 Ed. 4. 4. b. It appears that if one which hath cause to have priviledge in the Common Bench sue an Attachment as our case is against a Clark of the Kings Bench such Writ shall not be allowed for that that the Common Bench was first seised of the Plea by their Plea and the Priviledge of the common Bench is as ancient as the Priviledge of the Kings Bench and one Court is as ancient as the other for every of them is before time of memory and it is by prescription Walmesley sayd that the Possessory shall be preferred Quia melior est conditio possidentis but he agreed that if the priviledge of one Court be not so ancient as the other then the most ancient shall be preferred and it was agreed that though there be Difference in respect of parties or though that the attendance of one be of more necessity then the other as it was objected in this Case that the Defendant ought to attend otherwise he shall loose his office to that it was answered and resolved that the cause of the Suit in the Common Bench was voluntary and the attendance of the Attorney or Clark more necessary then of the Defendant for hee may exercise his Office by a Deputy but a Clark or an Attorney cannot for their office is Opus Laboris But the Office of the Defendant is only Opus Labrum and he is to deal with Gyves and Irons and such like so that in this Case the Office and place of a Clark or Attorney is to be preferred before the Office of Marshall but admitting that one Inferiour Officer of the Common Bench which is to have his priviledge sue a superiour Officer of the Kings Bench which is also to have his Priviledge there this shall not make any difference And so was the opinion of all the Court and upon this Judgment was given that the Defendant should answer over Trinity 7. Jacobi 1609. in the Common Bench. IN Assise between William Parson alias Chester Plaintiff against Thomas Knight alias Rouge Cross tenant for the office of one of the Heraulds called Chester the Recognitors of the Assise had view at a Funerall at Westminster where the Officer ought to attend and it was objected that this was no good view for it was not in any place certain where the Recognitors may put the Demandant in Possession and the Disseisin was alledged to be at Westminster at the sayd Funerall and it seems that the view was good but admitting that it were not good It seemes to Coke cheif Justice that the Assise in this case well lies without view for the Office is universall as the Office of the Clark of the Market and an Assise for Tithes and the Office of the Tennis Court these are universall and not annexed to any place and for that an Assise wel lies for them without view but for an Office in the Common Bench view may well be made in the Court for the Court is alwaies held in a certain place but for an Office in the Kings Bench Quere Inquit Coke for this ought to follow the Court of the King by the Statute of Articuli Cleri Chapter 3. But Walmesley Justice that this Court cannot be sitting in Clouds but in some place or other and for that the view ought to be here made and then Coke sayd by the same reason the Office of the Herauld cannot be exercised in the Clouds but at Funeralls and by this the view ought to be made there also but the Opinion of all the Court was that the view was well made the Tenant in Assise also challenged diverse of the Recognitors for that they were of a former Jury upon the same question and this was agreed to be a principall cause of challenge but the Court would not allow of that without shewing the Record but allowed that to be a cause of challenge for favour and for that they were tryed by their Companions being sworn to speak the Truth and they were found to be indifferent and for Seisin for the Demandant in the Assise it was shewed that diverse Fees were due to the sayd Office as seven pound for every day that he attended upon the Kings person and for the Dubbing of
Proviso that if the sayd John disturbed the Executors of taking his Goods in his House that then the sayd use and uses limited to the sayd John Francis and his Heires shall cease and after declared that his intent was that in all other points his Will should be in his force and it was pleaded that Iohn did not suffer the sayd Executors to take the sayd Goods in the sayd House and if his Estate for years or in Tayl or Fee-simple shall cease was the question and it seemed to the Judges that the Condition shall not be Idle but shall have hiâ— operation as it appears by Hill and Granges case and the Lord Barkleyes Case in the Comment and the Lord Cheneyes Case Coke And it seems also that it shall not be referred to Estate in Fee simple for then it shall be void and it shall not be referred to a Tearm for it is limited to an Estate limited to the said Iohn and his Heires but it seemeth it shall be referred to an Estate tayl only as it is 2 and 3. P. and Mary Dyer 127. 55. 11 H. 7. 6. But the case was adjudged upon one point in the Pleading for it was not pleaded that Iohn Francis had notice of the Devise nor that he had made any actuall disturbance and peradventure he entered as Heir and had no notice of the Condition and when the Executors came to demand the Goods which were belonging to the Heir and annexed to the House and he sayd that it doth not appear to them to prove that an express notice was given in this case the Books of 43 Assise where a man was attaint and after was restored by Parliament and a Writ being directed to the Esceator the Escheator returns that he was disturbed and upon Scire facias the disturber pleads that he had no notice of the sayd act of restitution and for this he was excused of Disturbance And see 35. H. 6. Barr 162. Michaelmas 7. Jacobi 1609. In the Common Bench. Waggoner against Fish WAGGONER brought a Writ of Priviledge supposing that he had a suit depending here in the Common Bench which was directed to the Maior and Sheriffs of London and upon the return it appears that 4. Iacobi an Act of Common Councell was made that none should be retayler of any Goods within the same City upon a certain pain and that the Chamberlain of the said City for the time being may sue for the said penalty to the use of the sayd City at any of the Courts within the said City and that the Defendant hath retailed Candles and held a shop within the sayd City being a stranger and against the sayd Act and for the sayd penalty the Chamberlain hath brought an Action of Debt within the sayd City according to the sayd Act of Common Councell and upon the return it appeares that by their Custome the Maior and Aldermen with the Assent of the Commoners of the said City may make By-Laws for the Government of the sayd City and that the sayd custome and all other their Customes were confirmed by Act of Parliament and upon this it seems that though there be not remedy given for this penalty in another place then in London that yet if it be against Law he shall not be remanded and if a Corporation hath power to make By-Laws that shall be intended for the Government of their ancient Customes only and not to make new Lawes see 2 Ed. 3 Iohn De Brittens Case but it seems if this By-Law be for the Benefit of the Common-Wealth that it shall be good otherwise not and it was Adjourned see Hillary next insuing for then it was adjudged that he shall not be remanded see afterward Michaelmas 7. Iacobi It was adjudged NOte that this Tearme was adjourned untill the Moneth of Michaelmas by reason of the Plague and upon the adjournment this insued and was moved by Yelverton and Crook at the Bar and the Case was this Michaelmas 7. Iacobi 1609. In the Common Bench. POynes being an Infant levies a Fine and in Trinity Tearm last past brought his writ of Errour in the Kings Bench and assigned for Errour that at the time of the Fine levied was and yet is within age and prayed that he be inspected and insomuch that he had not his proofs there he was not inspected but Dies datus est usquâ— Octabis Michaelis Proximas at which time came the said Poynes the day which was wont to be the day of the Essoyn and prayed Justice Crooke which was there to adjourn the Tearm to inspect him and to take his proofs who did inspect him accordingly De bene esse and now before the Moneth of Michaelmas the Infant came of full age and if this inspection were well taken and what authority the Judge had upon that day to adjourn was the question And Flemming cheife Justice sayd that the day of Essoyn is a day in Tearm and that the Court was full though there was but one Judge and if the inspection had been the day of the Essoyn and before the fourth of the Post he had come of full age this shall be very good but the doubt rose as the case is if upon the day of Adjournment the Judge had power to do any thing but to adjourn the Tearm and for that it was appointed to be argued and for the Argument of that Quere of my Author Lane Michaelmas 7. Iacobi 1609 In the Common Bench. Rivet Plaintiff Downe Defendant IN an action upon the case upon an Assumpsit the case appears to be this Copy-holder makes a lease for a year according to the custome of the Mannor the Lord distrains the Farmer of the Copy-holder for his Rent and the Copy-holder having notice of that comes to the Lord and assumes that in consideration that the Lord should relinquish his Suit against his Farmer touching the same distress he would pay the Rent by such a day the Lord delivers the Distress and for default of payment at the day brings an Action upon the case and upon Non Assumpsit pleaded Verdict passed for the Plaintif And Barker Serjeant came and moved in arrest of Judgment First that a man cannot distrayn a Copy-holder but he ought to seise but Williams Justice and others to the contrary and by him if a man makes a Lease at will Rendring Rent he may distrain for this Rent 9 H. 7. 3. The case of Rescous Secondly He moved that when the Lord distraines that now the Tenant hath cause of Action that is Replevin and for that it cannot be sayd Sectam suam and so the consideration failes but all the Court against that and that this was a good consideration and by Flemming cheife Justice Distress is an Action in it self because this is the cause of a Replevin and when the Tenant brings his Replevin and the Lord avowes now is the Lord an Actor and so it is secta sua and by him secta is not
Plaintiff SMith versus Bolles Sheriff of London Pasc 9. Jac. rotulo 1353. In case for that the name of the Sheriffs were omitted on the venire fac And for that cause one Judgement given for the said Smith was reversed by Writ of Error And for that Misprision Smith brought such Action of the Case HArris versus Adams If thou hadst had thy Right thou hadst been hanged for breaking of Paches House the words not actionable Thou art a Thief thou hast stollen the Town-beam meaning the Town of Wickham Serjeant Hutton of opinion the Action would lie STephens Attourney versus Battyn for words Thou hast cozened M. Windsor of his Fee and I will sue thee for it in the Star-chamber for that thou didst not come for Windsor Judgement for the Plaintiff Trin. 11. Jac. BRadley versus Jones Trin. 11. Jac. rotulo 3390. The Plaintiff brings his Action upon the Case for unjust vexation The Defendant had exhibited Articles against the Plaintiff to have the good Behaviour against him and took his Oath before Doctor Cary one of the Masters of the Chancery and afterwards the Defendant ceased prosecution there and obtained from the Kings Bench a Supplicavit to have the good Behaviour there And the Court was of opinon that the Action would lie because he prosecuted in the Kings Bench and not in the Chancery But the Court said that if he had prosecuted in the Chancery though the Articles had been scandalous yet no Action would have lyen for a man shall not be punished for mistaking the Law for he may be misadvised by his Counsel BRooks versus Clerk Pasch 11. Jac. rotulo 307. Action brought for these words His Son Brooks hath deceived me in a Reckoning for Wares And his Debt-book which he keepeth for Sale of Wares in his Shop is a false Debt-book and I will make him ashamed of his Calling Hubbart and Nichols against the Plaintiff and Warburton for the Plaintiff Pasch 11. Jac. rotulo 2147. Action of the Case brought for a Nusance for building the Defendants House so near the Plaintiffs that a great part of it superpends And the Plaintiff in the conveying his Title shews a Lease for years made to him if the Lessor should so long live and doth not aver the Life of the Lessor but saith that by vertue of the Demise the Plaintiff hath been and then was thereof possessed and adjudged sufficient MOrton versus Leedell Hill 10. Jac. rotulo 1783. Action of the Case for these words He meaning the Plaintiff is a lying dissembling Fellow and a mainsworn and forsworn Fellow And Judgement for the Plaintiff after divers motions THomas Attourney versus Axworth Pasch 11. Eliz. rotulo 352. Action of the Case for these words This is John Thomas his writing and he hath forged this Warrant meaning a Warrant made by Buller Sheriff of that County upon a Capias prosecuted out of the Court of Common Pleas by M. H. against the Defendant and directed to the Sheriff ROw versus Alport Mich. 11. Jac. rotulo 1527. Action upon the Case brought for suing in the Admiral Court for a thing done upon the Land and not upon the high Sea BRay versus Ham Trin. 13. Jac. rotulo 1994. Action of the Case for these words Thou art a cozening Knave and thou hast cozened me in selling false Measure in my Barley and the Countrey is bound to curse thee for selling with false Measure and I will prove it and thou hast changed my Barley which I bought of thee And the Plaintiff sets forth in his Declaration that he was Bayliff to W. C. and H. C. of certain Lands in P. for three years and during the said time had the care and selling of divers Corn and Grain growing upon the same Land and after Triall and Verdict for the Plaintiff it was moved in Arrest of Judgement that the Action would not lie but the Court were of a contrary opinion and Judgement was given for the Plaintiff BRown versus Hook Pasch 13. Jac. rotulo 234. Action of the Case for these words Brown is a good Attourney but that he will play on both sides And it was moved in Arrest of Judgement that those words would not bear an Action but the Court held they were actionable but did not give Judgement because the Plaintiff did not shew in his Declaration that the words were spoken of himself STober versus Green Mich. 11. Jac. rotulo 1â—91 Action of the Case for these words Thou didst keep and sell by false Weights and in 24. s. bestowing thy Weights were false two Ounces and thy Man will be a Witness against thee and I will prove it The Defendant pleaded that the Plaintiff occupied one Shop and kept unlawfull Weights and by such Weights sold by reason whereof he said these words Videlicet Thou didst keep and sell by unlawfull Weights and in 24. s. bestowing thy Weights were false an Ounce and three quarters and thy Man c. And traversed the words in the Declaration and it was adjudged a naughty Traverse for that the words in the Bar and justified by the Defendant are actionable AGar versus Lisle Mich. 11. Jac. rot 318. Action of Trover brought in York-shire the Defendant justifies for Toll at Darnton in Durham and traverse c. The Court doubts of his Traverse being onely for the County of York whereas it ought to be any where else generally And Hobart said the Bar was nought because in the justification no conversion was sufficiently alleadged And note that if a man doth a thing which is allowable by the Law as to distrain Cattle and impound them that is no conversion but if he work them it is a conversion AVstin versus Austin Trin. 10. Jac. rotulo 3558. In Troyer the Defendant pleads that before the time that the Plaintiff supposes the Goods to come to the Defendants hands one S. A. was possessed of the Goods and amongst other Goods sold them to the Defendant but kept them in his own hands and afterwards sold them to the Plaintiff by reason whereof the Plaintiff was possessed and afterwards looses them and they came to the Defendants hands who converts them as it was lawfull for him to do The Plaintiff demurs and it was held a naughty Bar for it amounts to a Non cul And Cook doubted whether the Court should compell the Defendant to plead Non cul or award a Writ of Injury And a Writ of Inquire was awarded ALlyns versus Sparkes al. Trin. 8. Jac. rotulo 1606 Action of the Case brought for stopping up the Plaintiffs way and the Plaintiff declares that one H. B. was seised of the Mannour of M. of which two Acres were customary Land and that the Lord of the Mannour had for himself and his customary Tenants for the said two Acres a certain high-way in by and thorow c. And that the Lord of the Mannour granted the said two
although another take away part of my Common yet no action lyeth As if one beat my servant lightly except the Master lose his service no action lieth And if my friend come and lye in my house and set my neighbours house on fire the action lyeth against me and Judgment for the Plaintiff HAtton versus Hun Trin. 13. Jacobi rotulo 3314. In Trespasse and Imprisonment the Defendant justifies by vertue of a Capias and the Plaintiff did afterwards escape and he being Sheriffe did follow him by vertue of the said Warrant taken upon the Capias the Plaintiff replies that he escaped by license of the Sheriffe and traverses the latter taking by vertue of the Warrant and the Court held the traverse idle because the Plaintiff had sufficiently confessed and avoided and if he escaped by the Sheriffs License that ought to be the thing put into issue and not the traverse PAtry versus Wilsh Trin. 9. Jacobi rotulo 1055. An action of Trespass brought wherefore by Force and Armes he broke the Plaintiffs Close and eat his Grasse c. The Defendant justifies for common of pasture and saith that he was seised in Fee of one Messuage with the appurtenances in G. and used to have common for all his Cattell levant and couchant upon the said Messuage And it was moved after a verdict in arrest of Judgment by Sergeant Nichols that the plea was insufficient because the certainty of the Cattell was not expressed as for 200. or the like but the Court held the contrary that levant and couchant is a certainty sufficient and all the Books prescribe for a Common by reason of a Messuage RInghall versus Wolsey Mich. 11. Jacobi rotulo 820. An action of Trespass brought wherefore by force and Armes the servant of the Plaintifs out of the service of the said Plaintiff hath taken and laid to be at H. The Defendant justifies that one was possessed of Corn at S. And that the said servant by the command of his Master had carried away the Corn and that the Owner came to the defendant being Constable and prayed him to detain the servant untill hee could procure a Warrant of a Justice of Peace and traverses that he is guilty at H. The Plaintiff demurres that it was held by the Court a naughty plea First because the Constable could not detain any man but for Felony And secondly the traverse is naught because the Trespass is in the same County and so he might have justified as well in H. as in S. DArney versus Hardington Pasch 9. Jacobi rotulo 1857. An action of Trespass brought to which the Defendant pleads a justification for an Amerciament set in the Sheriffs turn to which Justification exceptions were taken First because the Defendant justified by vertue of a precept to him lawfully granted saith not at what place Secondly he prescribes for the turn to be held and doth not any or what estate c. And Hutton said that a prescription for a turn or one hundred Court by what estate is naught because a hundred is not manurable but lies in grant but he ought to have said that the King and all they that were seised of the said Hundred have had and from the time c. And my Lord Cook said that a prescription by what estate for a thing incident to a Mannor is good for an Hundred that lies in grant it is naught And he and Warburton held that except it was shewed before whom the turn was held it was naught because where any thing is taken by common right as the Sheriffs turn it ought to be holden before the Sheriff as in the prescription it ought to be shewed before whom the turn was held or else it would be naught ROberts versus Thacher al. Hill 11. Jac. rotulo 1928. An action of Trespass brought wherefore by Force and Arms the Close and House of the Plaintif at A. did break and a certain Cow price c. took The Defendant saith that the Plaintiff ought not to have his Action against him because he saith that the Close House is one Messuage c. in A. aforesaid and that before the time in which c. such a one was possessed of the said Cow as of his own proper Cow to wit at A. aforesaid and being thereof so possessed certain Malefactors unknown to the said c. before the said time in which c. the said Cow out of the possession of the said B. did feloniously steal take and lead away whereupon he made Hue and Cry and thereupon hee had intelligence came and was in the possession and custody of the Plaintiff and B. upon notice thereof did request the Defendant to ask the Cow of the Plaintiff and to bring her c. By reason whereof the Defendant the said time in which came to the said Messuage by the usuall way by and through the said Close c. to demand c. And the Defendants then there finding the aforesaid Cow in a wall'd parcell of the Messuage they took the Cow from thence and brought her to the said B. and to him delivered her as c. which is the same Trespass to which plea the Plaintiff demurres and it was adjudged a naughty Justification for these reasons First because it doth not appear but that the Plaintiff had good right to the Cow Secondly because the Defendant took the Cow without demand And thirdly it is not pleaded that the Defendants were servants to the said B. R. and that he did it by his command and therefore Judgment given for the Plaintiff HAll versus Stanley al. Pasch 9. Jacobi rotulo 2289. An action of false imprisonment The Defendant as to the whole Trespass except the Battery and Imprisonment and keeping in prison not guilty And as to that pleads that the Marshals Court is an ancient Court c. and so justifies because the Plaintiff was the pledg of T. C. to the Defendant in an action of trespass upon the case in an indebilat assumpsit generall and thereupon a Judgment against C. and a Capias awarded and a non est invent returned and thereupon a capias awarded against Hall the pledge according to the custome by vertue whereof the said Hall was taken and detained and traverses that he was guilty c. of any imprisoning the Plaintiff before such a day and averres that they are the same persons And the Plaintiff replies that neither R. C. nor T. T. at the time of exhibiting the Bill were of the houshold c. The Defendant demurs and Judgment for the Plaintiff and the whole Court agreed that the Marshalls Court could not hold Plea Covenants and Contracts except both of them were of the houshold of the King and all the matters of which they could hold plea were Trespass Covenants and Contracts of the houshold and within the verge to wit within twelve miles of the Court and Doddridge said that before the Statute of 28
l. as it appears by Fleta and Brian the authority of the Marshall was absolute in civill and criminall causes at the Common Law and that Statute restrains them for Debts but not for Trespasse of what nature soever and therefore see the Statute of 30 l. 1. 5 E. 3. ch 2. and 10 E. 3. ch 2. Swaffe versus Solley Trin. 14 Jacobi rotulo 689. An Action of Trespass brought wherefore he took his Close the Defendant justifies for a way the Plaintiff replies that he did the Trespass of his own wrong without any cause alledged and so an Issue joyned and after a Verdict for it was moved in arrest of Judgement that the Issue was not well reined and prayed a new Triall because the Issue ought to be speciall but that exception was disallowed and adjudged that it was helped by the Statute of Jeofails by the opinion of the whole Court PLaint versus Thirley Hill 6 Jacobi rotulo 161. An Action of Trespass brought wherefore by force and Arms the Goods and chattells of the plaintif did take and impound the Defendant pleaded the common Barr and the plaintif assigns the place and are at issue upon that and after a verdict it was moved in arrest of Judgement that there was no Issue joyned because the Lands are not in question and so no assignment necessary and Judgement was stayed but afterwards upon a motion Judgement was given for the plaintif because the Issue was holpen by the Statute of Jeofails and there was the like case upon a Demurrer in the court of common pleas Trin. 4 Jacobi rotulo 1131. CHild versus Heely 13 Jacobi rotulo 3381. vel 381. An Action of Trespass brought wherefore by force and Arms the Close Hedges and Gates of the Plaintiff at W. did break and his grass with walking over it did destroy and other his Grass with Cattell did eat and consume the plaintiff assigned one Close of pasture called Drew and another close called Sutton one other close called L. and the Defendant as to the Trespass except the breaking of the close called G. and P. and the treading c. with his feet and eating with his cattell in the said close called P. and E. not guilty and as to the breaking of the close c. saith the plaintif ought not to have his Action because he saith that E. 6. was seised of the Mannour of W. of which one Messuage c. was copy-hold and shews the custome for a way and another custome for a Common and conveys the Copy-hold to himself and justifies as to the pedibus ambulandi and as to the Trespasse with the Cattell justifies for Common the Plaintif replies as to the Trespass pedibus ambulandi that it was of his own wrong without any cause alledged and traverses the way and as to Trespass with the Cattell demurres and the cause of the Demurrer was as it appeared by motion because in the justification of the Cattell the Defendant had not alledged any custome for Common and so the Plaintif could not take any Issue of that custome but had alledged a custome for the way as for the common and the court were of opinion that it was well pleaded and Judgement upon the Demurrer for the Defendant FAirchild versus Gair Pasch 3 Jac. An Action of Trespasse brought for the tiths of the Church of B. and therein a speciall verdict was as followeth the Defendant was collated to this Church of B. being a Donative by A. and B. the Patrons and that the Church was exempt from the Jurisdiction of any Ordinary the Defendant resigned to A. and C. who was a stranger and to other persons who had no Interest his Church of B. with all Rights c. and afterwards the persons passe their Rights to D. who collates and interests the Plaintiff in the Church by reason whereof he seised the Tithes in question and the Defendant took them and concludes that upon the matter c. and if the Resignation be good then they find for the Plaintiff otherwise for the Defendant and by the opinion of the whole Court Judgement was given for the Plaintiffe for the Resignation was good both in respect of the thing resigned and of the person to whom it was made for it being a Donative and exempt from ordinary Jurisdiction the Resignation must be into his hands and the Incumbent shall not be constrained to keep the Church whether he will or no if the Patron will not accept it and because there is no person to whom the Resignation can be made but onely into the hands of the Patron it is good and although the Resignation be to one Patron and to a stranger it is good to both the Patrons and void as to the stranger and the more strong it is because of the following words to wit to all persons whatsoever which words involve all that have any manner of interest and then seeing it is found that D. who collated the Plaintiff and the Estate of both the Patrons although no agreement be found of the Patrons it is not materiall and the resting of the Plaintiff in the Church is good to give him power to take the profits by reason of the primer possession and although the Defendant did resigne but the Church onely yet it is good to all that appertains to the Church and that which the Defendant may have as Rector there 6 E. 3. is that if the Patron grant Ecclesiam that will passe the Avowson but Herlethen said that was in ancient time and therefore not so then to which the court seemed to agree and the court waived the Dispute of any other thing but onely the Resignation for of that onely the Jury doubted and was onely referred to the court but Popham chief Justice said that if the Patron would not collate any man to such a Donative there was no way to compell him but he is left to his own conscience and he might in time of the vacancy take the profits and sue for the Tithes in the spirituall court for such Donatives at first grow by consent of all persons who have any manner of Right or Interest to wit the Ordinary and Parishioners but Gawdy Fenner Yelverton and Williams against him that the Ordinary might compel him to collate any clerk for the Rectory is only exempted from the power of the Ordinary and not the Patron and that is onely as to charges to be taxed upon the church for the ordinary attendance in a Visitation and such like and Popham said that although the Church in execution of the charge is spirituall yet the patron may collate and a meer lay man as the King may make a temporall man a Dean which hath often happened but all the other Judges were against him in case of the person which is meerly spritual but as to the Deanery they did agree it for the function is temporall but yet Williams said that lay men who have Deaneries ought to have and at all