allowed in the Ecclesiasticall Court which tends in discharge of Tithes And to prove that he cited 8. E. 4. 14. Br. Tithes 11. And a Case in 6. 7. E. 6. Dier 79. d. But admit the Plea should be allowed in the Ecclesiasticall Court as many of the Doctors have certified the Justices yet because the Modus decimandi is a thing pertaining to the common Law the Prohibition will lie By Fitz. Herb. and the Register If a Parson grant to one of his Parishoners That he shall be discharged of Tithes he may peradventure plead the same in the Spirituall Court yet there is good cause that a Prohibition do lie So 22. E. 4. 20. Br. Prohibition 14. The Abbot of Saint Albans kept the wife of I. S. in his house two houres against her will to have made her his Harlot and the Husband spake of it for which cause the Abbot sued him for slander in the Spirituall Court and because the husband for that act might have a false imprisonment therefore a Prohibition was granted So if I swear to pay I. S. 10â— and he sues for it in the Spirituall Court a Prohibition lieth for hee may have an Action of Debt in the common Law for it for where the common Law may have Jurisdiction there the Spirituall Court shall not intermeddle with the matter So if an Abbot rob I. S. and he speaks of it and the Abbot sues him in the Spirituall Court a Prohibtion will lie He said further That the Case was betwixt the Vicar and a Parishoner and therefore one of them a Temporall person If the Suit be betwixt the Farmer of the Parson and another a Prohibition shall be granted Also he said The right of the Tithes doth not come in question but only the Modus dicimandi Câ—â—k The Modus decimandi doth not come in question there therfore it cannot be traversed for if it be due to the Parson that is the question as in 40. E. 3 4. In a Replevin the Defendant saith That the place where c. is Ancient Demesne and pleads to the Jurisdiction Char l' that is a Trespasse and Personall Action and therefore it is no plea and yet it was agreed by the Court to be a good plea for by the Avowry the realty might come in debate in the Replevin Atkins If there be contention de Jure Decimarum Originum habens de jurâ— Patronatus tunc spectat ac Legem Civilem And in this case it was said That de mero jure The Parson is to have all the tythes if there be not any Endowment of the Vicarage Mich. 28 29. Eliz. in the Kings Bench. 77. MEGOD'S Case THe Case was That a Feoffment was made unto another man ad eam intentionem that he should convey the same to such a one to whom he sold it and he sold the same to another and did refuse to convey it and therefore the other brought an Action upon the Case And Gaudy Justice held that the Action would lie But Suit Justice held the contrary Wray Chiefe Justice did agree with Gaudy for he said It was a Trust that he should assure it to another And it is a good consideration in the Chancery the conveyance of a Trust and thereupon an Action upon the Case will lie Mich. 28 29 Eliz. In the Kings Bench. 78. ALtham of Grays-Inne took many Exceptions to an Indictment of Murder The first was because the Indictment said Quod capta fuit inquisitio coram Coronatore in Comitatu c. and doth not say de Comitatu And a Crowner in a County is a Crowner in every County in England as it is holden 9. H. 5. 24. b. Also de and in do much differ as in 15. E. 4. 15. Where a Scire facias was brought against the Master and Scholers Beatae Mariae Sancti Nicholai in Cantabrigia where the foundation was de Cantabrigia and not in Cantabriâ—gia And the Writ was abated For there is a difference betwixt in and de For a thing may be in and not of as Saint Sepulchres is in London but not of London A second Exception was because it said Inquisitio capta per Sacramentum c. and did not say Jurati and therefore the partie is not charged upon it and by 13. E. 4. If Jury be charged upon one and they find another felon it is void because they were not charged upon him And 1. R. 3. 4. by Hassey If in Assize the Record be such viz. Quod jurati exacti comperuerunt quorum 12. supra Sacramentum suum dicunt And give their verdict If it doth not say Quorum 12. Electi jurati it is errour For it doth not say in facto that they were sworn and yet it is implyed by the words Sacramentum suum that they were sworn The third Exception was That it doth not say That he was in pace Dei dict' Dominae Reginae for it might be that the partie was a Traitour and that he was flying and in such case he might justifie the killing of him and perhaps also it was se defendendo therefore those words are very necessary An other Exception was because the Indictment is percussiâ— and it is not said ex malitia praecogitata for so an Indictment of Murder ought to be as in 2. E. 4. The Indictment was quod Cepit abduxit felâ—nicè where it ought to have said Felonicè cepit abduxit and therefore it did abate A fifth Exception was because it saith â—t dedit ei plagam mortalem and doth not say cum gladio pâ—aedicto And in the Statute de Coronatore there is a charge given him That hee finde what weapon it was which gave the stroke See the Statute of 4. E. 1. Rastall Coroners 2. The sixth Exception was That the Indictment was That the pan of the knee was cut out and it doth not shew the length depth and breadth of the wound he granted that if one single member be cut off it is not necessary to shew the breadth c. but here was no amputation of any member nor a cutting off but the cutting of the pan of the knee Saâ—g to the same purpose and he finds there is a great difference betwixt cut off and cut out And he said That as to that which the Solicitour hath answered unto to the difference of in and de viz. that it is all one as if I grant a thing percipiena ' de Manâ—rio or in Maneriâ— that is all one To that he answered that that cannot be and in Wâ—mbishâ—s case in Plo. Coâ— 75. the same Exception was taken in a Writ But in our Case he said It is an Indictment which is favoured because the life is in question And he took another Exception because that the Indictment saies Tempore feloniae murdredi praedict ' and there is no such word murdredum To that the Sollicitour said That it was in equall degree murdum and murdredum for none of them are
intend to entermarry with Alice S. by Indenture did covenant with J. D that he would marry the said Alice being then of the age of seventeen years and that after the marriage had betwixt them that they would levy a Fine of divers Lands which said Fine should bee unto the use of the said J. D. and his Heirs and accordingly after the entermarriage the said J. S. and Alice his Wife did levy a Fine unto the said J. D. and his Heirs without any other use implied or expressed but what was contained in the said Indenture before marriage and according to the said Fine the Conusee continued the possession of the said Lands for a long time viz. for thirty years Cook Chiefe Justice said That this continuance of possession was a strong proofe and could not otherwise be intended but that the Conusee came to the possession of the said Lands by the said Fine which was so levied to him and his heirs And he said That it was adjudged in this Court in the Case betwixt Claypoole and Whestone That in a Recovery the Covenant did not lead the use of the Recovery for that it was but an evidence that such was the intent of the parties And in this Case it was agreed by the whole Court and was so said to be resolved in Clogat and Blythes case 30. Eliz. That when no use is expressed or implyed by Indenture or other agreement that it shall be to the ancient use viz. to the use of the Conusor As if Husband and wife be seised of one moytie of the Land in the right of the wife and the Husband of the other moytie by himselfe and they joyne in a Fine generally the Conusee shall be seised to the former uses as it is agreed in Beckwiths case C. 2. part And so it was agreed That if the Husband doth declare the use and the wife doth not disagree or vary from it that the declaration of the Husband shall bind the wife And Cook said That it is not alwayes necessary that the wives name be set to the Indenture which doth declare an use And further Cook said That if a Fine be levied of Lands yet the uses may be declared by subsequent Indentures And it was said Obiter in this Case That if a man for valuable consideration doth purchase a Lease for years and hee nameth two of his servants as joynt-purchasers with him in the Deed and afterwards the Master would sell the Lands alone and the servants do interrupt the sale or will not joyne with him that he hath no remedy to compell them to do it but by a Bill of Chancery Trinit 8. Jacobi in the Common Pleas. 254 A Vicar was endowed in the time of King Henry the 3d. of divers Tithes and afterwards he libelled for those Tithes in the spirituall Court The Defendant alledged a Mâ—dus Decimandi and prayed a Prohibition and day was given to the party to shew cause why the same should not be granted and at the day the Deed of Endowment was produced and shewed in Court By which it did appear That the Vicar was endowed of Hay viz. of the tenth part of it and so of the remnant of the Tithes for which he libelled whereupon the Court refused to award a Prohibition Quaere Causam For as I conceive a Modus Decimandi may accrue after the Endowment Trinit 9. Jacobi in the Common Pleas. 255 Sir W. DETHICK and STOKE's Case STokes libelled against Sir William Dethick in the spirituall Court for calling of him Bald Priest Rascally Priest and for striking of him and for those offences he was fined by the spirituall Court an hundred pound and imprisoned And the opinion of the whole Court was That neither the Fine nor Imprisonment were justifiable because the Statute of Articuli Cleri is Non imponant poenam pecuniariam nisi propter redemptionem c. And Cook said They might onely excommunicate and thereupon a Writ de Excommunicatâ— capiendo might be awarded and that is their onely course and then the Party may have his Cautione admittenda And the Court said That if the spirituall Court would not enlarge the party upon sufficient Caution offered them that then the Sheriffe should deliver him Trinit 8. Jacobi in the Common Pleas. 256 IT was the opinion of the whole Court That if a man have a Judgment against two men upon a joynt Bond That he cannot have severall Executions viz. a Capias ad satisfaciendum against the one and an Elegit against the other for he ought to have but unicam satisfactionem although he sue them by severall Actions And if he sue forth severall Executions an Audita Querela will lye Mich. 9. Jacobi in the Common Pleas. 257 CARLE'S Case NOte it was adjudged in this Case That if a man say of another that he hath killed a man an Action upon the case will not lie for those words for he may do it as Executioner of the Law or se defâ—ndeâ—do So if one say of another That he is a Cutpurse an Action will not lie for that a Glover doth and a man may cut his own purse and the same Term it was holden in the Kings Bench That an Action will not lie for calling one Witch Mich. 9. Jacobi in the Common Pleas. 258 IT was holden by the whole Court That a Commoner cannot generally justifie the cutting and taking away of Bushes off from the Common but by a speciall prescription he may justifie the same So he may say That the Commoners have used time out of mind to dig the Land to let out the water that he may the better take his Common with his cattell and it was agreed That if the Lord of the Waste doth surcharge the Common that the Commoner cannot drive his cattell off the Common or distraine them damage feasance as he may the cattell of a stranger But the remedy against the Lord is either an Assize or an Action upon the Case Mich. 9. Jacobi in the Common Pleas. 259 IT was agreed by the whole Court That if a man deviseth unto his daughter an hundred pound when she shall marry or to his son when he shall be of full age and they die before the time appointed that their Executors shall not have the money otherwise if the devise were to them to be paid at their full ages and they die before that time and make Executors there the Executors may recover the Legacy in the spirituall Court Hill 9. Jacobi in the Kings Bench. 260 ROYLEY and DORMER's Case TWo Boyes did contend and fight near unto their houses and the one stroke the other so as he did bleed who went and complained to his father who having a rod with him came to the other boy and beat him upon which he died And the opinion of the whole Court was That it was not murder Mich. 9. Jacobi in the King 's Bench. 261 EDWARDS and DENTON's Case UPon a special Verdict the Case was
should be made of words as to make them actionable and words shall be taken in mitiori sensu if there be no particular description and declaration that the words were spoken maliciously And therefore general words which of themselves are actionable by construction shall be taken to bear no action as C. 4. par Stanhops case And so if a man saith of another that he hath the Pox they shall be taken in mitiori sensu because they are not described by any subsequent words which declares malice in the party And Nichols vouched a Case which was in this Court this Term where an action was brought for these words Thou usest me now as thy Wife did when she stole my Cushions that the words were not actionable Warburton Justice When words are spoken which scandal a man in his trade or profession they are actionable as if one say of an Attorney Thou cosenest Mr. Winsor of his Fees and so if words are spoken maliciously And therefore an action was brought by one who was a Jury-man for these words viz. Thou hast deceived me any my children of eight hundred pounds they were adjudged actionable And so Hill 6. Jacobi rot 1159. Thou art a Jury-man and hast been the death of a hundred men by thy false means Being maliciously spoken although in themselves they are not actionable yet they will bear an action But it was adjudged in the principal Case for the reasons given by the two other Justices that the words would bear no action to which Warburton Justice in the end did seem to agree Hill 11. Iacobi in the Common-Pleas 337. AYLIFFE and BROWNS Case A Woman who was possessed of a Term for divers years had issue two Daughters the one married to Ayliffe and the other to Brown Ayliffe had issue four Daughters and Brown had also issue and the Woman did demise Legacies to the children of Ayliffe out of the Rent reserved upon the Lease and made Brown her Executor and dyed Ayliffe required Brown in the behalf of his children to pay the money to him that he might imploy the same for the benefit of the children which he refused to do and thereupon he sued him in the Spiritual Court and there Sentence was given for the Plaintiffe Brown the Executor moved for a Prohibition and alleadged for ground of it that he was Executor and chargeable in an accompt for the money But because he came after sentence and also after he had appealed to the Court of Delegates and after a sentence given there also against him the Court refused to grant a Prohibition in the Cause and also because he did refuse to give security for the payment of the Legacies to the children Hill 11. Iacobi in the Common-Pleas 338. WORMLEIGHTON and HUNTERS Case TWo men are bounden with J. S. as Sureties in an Obligation One of the Sureties viz. Wormleighton was sued upon the Bond and the whole penalty recovered against him He exhibited an English Bill into the Court of Requests against the Defendant being the other Surety to have contribution and it was moved to the Court for a Prohibition to the Court of Request and the same was granted because by entring into the Obligation it became the debt of each of them jointly and severally and the Obligee had his election to sue which of them he pleased and take forth Execution against him and the Court said That if one Surety should have contribution against the other it would be a great cause of suits and therefore the Prohibition was awarded and so it was said it was lately adjudged and granted in the like case in Sir William Whâ—rwoods case Hill 11. Iacobi in the Common-Pleas 339. LAMBERTS Case TWo men were Partners in goods the one of the Partners sold unto J. S. at several times goods to the value of 100 l. and for the goods at one time bought he paid the money according to the time afterwards an action was brought by one of the Partners for the rest of the money and the Plaintiff declared upon one contract for the whole goods whereas in truth they were sold upon several contracts made and the Defendant in that case would have waged his Law But the Court advised the Plaintiff to be Non-suit and to bring a new action because that action was not well brought for it ought to have been a several action upon the several contract And in this case it was agreed by the Court that the sale of one Partner is the sale of them both and therefore although that one of them selleth the goods or merchandizeth with them yet the action must be brought in both their names and in such case the Defendant shall not be received to wage his Law that the other Partner did not sell the goods unto him as is supposed in the Declaration Hill 11. Jacobi in the Common-Pleas 340. WHITE and MOORS Case A Man did recover in an action of Debt brought in the Common-Pleas and had Judgment and afterwards before Execution was taken forth the Defendant in the Debt exhibited an English Bill into the Court of Requests to overthrow the Judgment and to stay Execution pretending in his Bill that there was a parol agreement betwixt him and the other that he should not be charged with that Judgment nor the payment of the money It was moved for a Prohibition in this case which was granted by the Court because the Plaintiffe there by practice did endeavour to subvert a Judgment given at the Common-Law And in speaking of this Case the Court did very much condemn the course used in the Court of Requests in taking Bonds of the parties to perform their Decrees made there for it was said that such Bonds were against Law and so it had been oftentimes adjudged Hill 11 Jacobi in the Common-Pleas 341. BALDWYN and GIRRIES Case A Parson did Libel in the Spiritual Court for Tythes and the substraction of them and grounded his Libel upon the Statute of 2 E. 6. The Defendant alleaged that he was to be discharged from the payment of tythes by reason of priviledge within the Statute of 31 H. 8. of Dissolutions and the Plaintiffe here had a Prohibition And afterwards they were at issue here Whether he ought to be discharged hy Priviledge or not and after issue joyned the Plaintiffe in the Prohibition was Non-suit And thereupon the Parson had a Consultation and proceeded in the Spiritual Court and there obtained a sentence and the sentence there was That he should recover the single damages and the same was set in certain and ulterius that recuperet duplicem valorem which was also by the said sentence set in certain And it was resolved in that Case by the whole Court That a Prohibition should be granted grounded upon the sentence because the Spiritual Court in their sentence did exceed the damages which was to be given by the Statute in that Court and it was said That although the sentence there given be not
parties more may try it 30. E. 3. 2. or 39. E. 3. 2. In a Writ of Right processe issued to the Sheriff to return four Knights he returns two Knights and two Esquires without making any mention that there were no more Knights in the County the same is errour yet if two Knights and two Esquires had been returned by the assent of the parties it had been good 6. E. 6. Dyer A man cannot enter for Non-payment of Rent without a demand yet by assent of the parties it may be good 22. H. 6. 59. the triall in favour of Liberty ought to be in the same County where the Action is brought and not where the Manor is But 44. E. 3. 6. by the assent of the parties it is sufficient In the Abridgement of the Book of Assizes 48. the books are cited to the contrary there it is said to be no Law where the Coroners â—ry the panell I agree that where it is not against a fundamentall point of the common Law that the consent of the parties tollit errores Dodderidg Justice Two questions are in this case 1. If this tryall be good 2. Admitting it be not good whether the assent of the parties doth make it good First it is a meer matter in the discretion of the Justices which is not tied to any strict rule in Law In the Book of the Assizes it was tried by the Coroners because it was in the discretion of the Justices And the Coroners are Ministers to the Court and ought to attend at the Assizes The Book of the Assizes is the Report of the Cases which happened at the Assizes in the Circuits of the Justices and they are not Term cases For the Exception which is taken by him who made the Abridgment of the Book of Assizes is of no moment for the Authour thereof was but a Student and no Councellor at Law In these Courts the Coroners do not attend therefore sometimes two four or six of the Panell are chosen to try those who are challenged as the Court shall think fit and if the Triers cannot agree we put them together into a room and swear one to keep them as a Jury is kept so as you see it rests much in the discretion of the Justices Court And if there were a certain rule to try it then it ought to be strictly observed 31. Ass 10. there the triall was de Circumstantibus 2. The assent of the parties doth make it good It is not a triall in point of the right of the cause but only of the indifferency of the Ministers The Array was challenged because the Sheriffe made it at the request of one of the parties and the Sheriffe hath confessed it upon his Examination The principal Array shal be first tried and if that be quashed then the Tales shall not be tried but if it be affirmed then two of the Panell shall try the Panell and two of the Tales shall try the Tales This is a triall only of indifference and not of the fundamentall point of the Cause If the Plaintiffe require the Venire facias to the Coroners because that the Sheriffe is chosen the Defendant shall be examined if he will agree to it if he will not agree but the Sheriffe returneth the Jury the Defendant in that case shall not challenge the Jury or any of the Array The four Knights in the Writ of Right shall choose the other twenty of the Grand Assize who shall be joyned with them and they shall be the Judges of the twenty when they are named by them 39. E. 3. 2. Haughton Justice The appearance by Atturney by assent of the parties is not errour although by the Law the Plaintiffe ought for to appear in proper person Chamberlain Justice would be advised because he had not seen the Books Ley chief Justice When the whole Panel as in this case comes to be challenged then it is in the discretion of the Justices to choose triers and chiefly in this case because all the Array is partiall If the Coroners be absent 〈◊〉 is good to take two Atturneys of the Court who the Court know to be honest by their honest carriage and fair practice The assent of the parties strengthens this case It is a rule That the assent of the parties cannot make that good which is against any fundamentall point of the Law therefore it is best to view the Presidents and to draw a Jurour but that we cannot do of our selves by the Law yet with the assent of parties we may do it It is a contempt and a deceit to the Court if his assent be entred upon record and notwithstanding that the Defendant will question the matter by a Writ of Error or otherwise relinquish his consent and for such contempt the Court may commit him and fine him also But if the matter be not a matter of Record but be onely by a Rule of the Court then we may award an Attachment onely against the party In this case the triall of the Panell was good and so was it afterwards adjudged by the whole Court Quod nota Pasch 3. Caroli in the King 's Bench. 496 EVERS and OWEN's Case SAmson Evers the Guardian of Compton Evers did sue Owen the Executor of the Lady Anne Evers for a Legacy before the Councell of the Marches of Wales Henden Serjeant moved for a Prohibition and said That by Law no intent of a Will ought to be averred contrary to the words of the Will C. 5. part 68. Cheyneys case And so no equity shall be taken upon a forrain intent contrary to that which is in the Will 2. He said That the party might not sue in the Marches of Wales for a Legacie for that the party ought to sue for the same in the Ecclesiasticall Court Banks contrary They may proceed there in an Ecclesiasticall Cause wherein there is cause of equity The Statute of 34. H. 8. cap. 26. giveth power unto them to proceed as they proceeded heretofore by Commission And before that Statute they proceeded there in case of a Legacy and so are divers Presidents therefore no Prohibition is to issue Samson Evers is the Kings Atturney for the Marches of Wales and his personall attendance is requisite there And this Court cannot grant a Prohibition to stay a Suit when he cannot sue in this Court for the same thing Finch Recorder contrary If you shew Presidents yet they will not bind this Court and give power unto them to hold plea of that which they ought not to hold plea of It is usuall to grant a Prohibition if the Court of Requests holds plea of a Legacy if it be not by reason of some speciall circumstance and it is usuall to dismisse Legacies out of the Chancery And no Priviledges shal be granted unto an Executor Administrator or Guardian Hyde Chief Justice Two have an Obligation as Executors and the one releaseth it is good and a good cause of equity against him who
in Ward For Cook Chief Justice said that all Offices which are found to deceive the Crown of such an ancient flower of the Crown as Wardship should be void as to that purpose and most beneficial for the King And he cited the Case in 36. H. 8. Where the Kings Tenant made a Feoffment and took back an estate unto himself for life the Remainder to his Grand-child for 80. years and died that in that Case the Heir was in Ward and they said that in the case at Barre the Heir had power of the Inheritance upon payment of five Shillings and if the Lease for years be found and proved by witnesses yet it carrieth with it the badges of fraud And Tanfeild Chief Baron said that if a Lease for 100. years shall be accounted Mortmain à fortiori this Lease for 1000. years shall be taken to be made by fraud and collusion And Cook said that the Lord Chancellour of England would not relieve such a Lessee in Court of Equity because the begining and ground of it is apparant fraud Note the lands did lye in Springfield in Essex Trinit 10. Jacobi in the Common Pleas. 274 MEADES Case AN Action of Debt was brought upon a Bond against Meade who pleaded that the Bond was upon condition that if he paid ten pound to him whom the Obligee should name by his last will that then c. and said that the Obligee made his Will and made Executors thereof but did not thereby name any person certain to take the ten pound Sherley Serjeant moved that the Executors should have the ten pound because they are Assignees in Law as it is holden in 27. H. 8. 2. But the whole Court was of opinion that the Executors were not named in the Will for such a purpose viz. to take the ten pound For they said It is requisite that there be an express naming who shall take the ten pound otherwise the Bond is saved and not forfeited And Cook put this Case If I be bounden to pay ten pound to the Assignee of the Obligee and his Assignee makes an Executor and dieth the Executor shall not have the ten pound But if I be bounden to pay ten pound to the Obligee or his Assignees there the Executor shall have it because it was a duty in the Obligee himself the same Law if I be bound to enfeoffe your Assignees c. Wherefore it it was adjudged for the Defendant Trinit 10. Jacobi in the Common Pleas. 275 GREENWAY and BAKER's Case IT was moved and afterwards resolved in the Case of a Prohibition prayed to the Court of Admiralty That if a Pirat taketh goods upon the Sea and selleth them that the property of them is changed no more then if a theife upon the Land steales them and selleth them And in this Case it appeared by the Libell That bona piratica fuerint infra Portam Argier super altum mare And for that cause a Prohibition was denied because Argier being a forrain Port the Court could not take notice whether there were such a place of the Sea called the Port or whether it were within the Land or not Afterwards upon the mediation of the Justices the parties agreed to try the cause in the Guild-hall in London before the Lord Chiefe Justice Cook Trinit 10. Jacobi in the Common Pleas. 276. Sir FRANCIS FORTESCUE and COAKE's Case UPon an Evidence in an Ejectione firme betwixt the Plaintiffe and Defendant The Court would not suffer Depositions of witnesses taken in the Court of Chancery or Exchequer to be given in Evidence unlesse affidavit be made that the witnesses who deposed were dead And Cook Chiefe Justice said nullo contradicente That it is a principall Challenge to a Jurour That he was an Arbitrator before in the same case because it is intended that he will incline to that partie to which he inclined before but contrary is it of a Commissioner because he is elected indifferent And it was also said in this Case That one who had been Solicitor in the Cause is not a fit person to be a Commissioner in the same Cause Trinit 10. Jacobi in the Common Pleas. 277 BArker Serjeant in Arrest of Judgement moved That the Venire facias did vary from the Roll in the Plaintiffs name for the Roll was Peter Percy and the Venire facias John Percy and the postea was according to the Roll which was his true name The Court doubted whether it might be amended or whether it should be accounted as if no Venire facias had issued because it is betwixt other parties But it was holden That in case no Venire facias issueth the same is holpen by the Statute of Jeofailes and in this case it is in effect as if no Venire facias had issued forth and so it was adjudged And Cook Chiefe Justice said that if there be no Venire facias nor habeas Corpora yet if the Sheriffe do return a Jury the same is helped by the Statute of Jeofailes Warburton Justice contrary vide C. 5. part Bishops case And Harris Serjeant vouched Trinit 7. Jacobi Rot. 787. in the Exchequer Herenden and Taylors case to be adjudged as this Case is Trinit 10. Jacobi in the Common Pleas. 278 BROWN's Case IT was holden by the whole Court in this case That if a man hath a Modus Decimandi for Hay in Black-acre and he soweth the said acre seven years together with corn that the same doth not destroy the Modus Decimandi but the same shall continue when it is again made into hay And when it is sowed with corn the Parson shall have tithe in kind and when the same is hay the Vicar shall have the tithe hay if he be endowed of hay Trinit 10. Jacobi in the Common Pleas. 279 JAMES and RATCLIFF's Case IN Debt upon a Bond to perform such an agreement The Defendant pleaded Quod nulla fuit conclusio-sive agreeamentum The Plaintiff said Quod fuit talis conclusio agreeamentum de hoc ponit se super patriam The Court held the same was no good issue because a Negative and an Affirmative Trinit 10. Jacobi in the Common Pleas. 280 WETHERELL and GREEN's Case IT was said by the Pronothories That if a Nihil dicit be entred in Trinity Term and a Writ of Enquiry of Damages issueth the same Term that there needs not any continuance but if it be in another Term it is otherwise The Court said If it were not the course of the Court they would not allow of it but they would not alter the course of the Court the words of continuance were Quia vicecomos non misit brev Trinit 10. Jacobi in the Common Pleas. 281 PARROT and KEBLE's Case A Man levied a Fine unto the use of himself for life the remainder in tail c. with power reserved to the Conusor to make Leases for eighty years in Possession or Reversion if A. B. and C. did so long live reserving the ancient rent
tail because the first words were indefinite and the later words were certain by which his intent did appeare to pass but an estate in tail He also cited 4. E. 4. 29. B. The words of an Obligation were Noverint universi per praesentes me I. S. teneri c. W. B. in ten pound solvendum eidem I. And it was holden by the whole Court that the same did not make the Bond to be void because it appeared by the promises of the Bond to whom the mony was in Law to be paid and the intent so appearing the Plaintiff might declare of a solvendum to himself and the word I should be surplusage And 22. E. 4. 9. A. B. The Abbot of Selbyes case Where the Abbot of Selby did grant annualem pensionem to B. ad rogatum I. E. illam scilicet quam I. E. habuit ad terminum vitae suae solvendum quousque sibi c. de beneficio provisum fuerit and it was holden by the whole Court in a Writ of annuity brought that sibi did referre to B. the grantee and not to I. E. And Cook Chief Justice said that the original Contract doth leade the measure in this Case and to that purpose he cited Kiddwellies case in the Commentaries where a Lease was made rendring Rent at Mich. at D. and if it were behind by a month after demand that the Lessor might reenter the demand must be at the first place which is in that case alledged to be certain viz. at D. The case was adjorned Trinit 10. Jacobi in the Common Pleas. 285 Sir Henry Lea and Henry Leas Case SIR Henry Lea was committed to the Fleet for the disobeying of a Decree made in the Court of Requests and having Suits depending in the Court of Common Pleas he prayed a Writ of habâ—as Corpus which was granted and upon the return of the Writ the cause of his Commitment appeared to be for a contempt for not performing of the said Decree and no other cause appeared in the return and the Court were of opinion that they could not deliver him because that no cause appeared in the return to warrant their delivery of him And the Court said that if the return be false yet they cannot deliver the party But the party may have his Action of false Imprisonment if the Imprisonment be not Lawfull But then it was shewed by Mountague Serjeant to the Court that the Decree was made in the Court of Requests upon a Bill containing this matter viz. That Henry Lea pretending Title unto Lands which Sir Henry Lea held by descent from his Unkle Sir Henry Lea shewed his Title to the Kings Majestie and thereupon the King upon the Petition of Henry Lea sends for Sir Henry Lea and had speech with him that he would give unto the said Henry Lea some recompence for his Title which he pretended to have to the said Lands And that thereupon the said Sir Henry Lea at the instance of the Kings Majestie did promise the King that if the said Henry Lea would not molest him for any of the said Lands which he had by descent from his said Unkle that then he the said Sir Henry Lea would give unto the said Henry Lea two hundred pound per Annum And for not performance of this promise made to the King Henry Lea Exhibited his Bill in the Court of Requests upon which the said Decree was grounded The said Sir Henry Lea answered that he did not know of any such promise he made to the Kings Majestie and pleaded to the Jurisdiction of the Court But upon a Certificate made by the Kings Majestie that he made such a promise unto him the Court of Requests made the said Decree which Certificate was mentioned in the body of the said Decree And Mountegue prayed that because it appeared that the said Henry Lea had remedy by way of Action upon the case at the common Law upon the said promise That this Court would grant a Prohibition in this case unto the Court of Requests and deliver the party from his Imprisonment But the Court said that they would advise of the Case because they never had heard of the like case But Cook Chief Justice advised Sir Henry Lea to agree the matter betwixt Him and his Kinsman Henry Lea For he said that he had learned a Rule in his youth which was this viz. Cum pare luctare dubium cum Principe stultum est Cum puero poena cum Muliere pudor Trinit 10. Jacobi in the Common Pleas. 286 GARVEN and PYM's Case GArven libelled against Pym for a Seat in the Church before the Bishop of Exeter in the spiritual Court there which by Appeal was removed into the Court of Arches And the Defendant did surmise in the Court of Common Pleas That he and his Ancestors have used time out of mind c. to have an Isle with a seat in the said Church for himself and his family and thereupon prayed a Prohibition But because it did appear upon Examination of the party himself That the Parish have alwayes used to repair the said Isle and seat the Court would not grant a Prohibition in this case for that proves that his Ancestors were not the Founders of the said Isle and Seat Also another man hath alwayes used to sit with him in the same seat which also proves that it doth not belong to him alone Cook chief Justice said That if a Gentleman with the assent of the Ordinary hath built an Isle juxta Ecclesiam for to set convenient Seats for him and his family and hath alwayes repaired the same at his own costs and charges In such case if the Ordinary place another man with the Founder without his consent in the same Seat that he may have his Action upon the Case against the Ordinary And if he be impleaded in the spirituall Court for such Seat that a Prohibition will lie And he said That the Heydons in Norfolk have built such an Isle next to the Church and placed convenient Seats there for them and their family But he said That if a man with the assent of the Ordinary set up a Seat in navi Ecclesiae for himselfe and another man doth pull up the same or defaceth it Trespas vi armis will not lie against him because the Freehold is in the Parson and he hath no remedy for the same but to sue the party in the Ecclesiastical Court And 9. E. 4. 14. the Dame Wiches Case was vouched where she brought an Action of Trespasse against the Parson for taking away her Husbands Coat-armour which was fixed to the Church at his Funerall and it was adjudged that the Action would lie and so will an Action in such case brought by the heir And Cook said That the Ordinary hath the onely disposing of Seats in the Body of the Church with which agrees the opinion of Hassey in 8. H. 7. And if the Ordinary long time past hath granted to a
And per Curiam a Prohibition shal be awarded And Cook chief Justice said That there were three Causes in the Bill for which a Prohibition should be granted which he reduced to three Questions 1. If a Copy-holder payeth his rent and the Lord maketh a Feoffment of the Manor Whether the Copy-holder shall be compelled to attorn 2. If a man be seised of Freehold Land and Covenants to stand seised to an use Whether in such case an Attornment be needfull 3. If a Feoffment be made of a Manor by Deed Whether the Feoffee shall compell the Tenants to attorn in a Court of Equity And for all these Questions It was said That the Tenants shall not be compelled to attorn for upon a Bargain and Sale and a Covenant to stand seised there needs no attronement And Cook in this case said That in 21. E. 4. the Justices said That all Causes may be so contrived that there needed to be no Suit in Courts of Equity and it appears by our books That a Prohibition lies to a Court of Equity when the matter hath been once determined by Law And 13. E. 3. Tit. Prohibition and the Book called the Diversity of Courts which was written in the time of King Henry the eighth was vouched to that purpose And the Case was That a man did recover in a Quare Impediâ— by default and the Patron sued in a Court of Equity viz. in the Chancery and a Prohibition was awarded to the Court of Chancery Mich. 11 Jacobi in the Common Pleas. 298 Sir JOHN GAGE and SMITH's Case AN Action of Waste was brought and the Plaintiffe did declare that contrary to the Statute the Lessee had committed Waste and Destruction in uncovering of a Barn by which the timber thereof was become rotten and decayed and in the destroying of the stocks of Elmes Ashes Whitethorn and Blackthorn to his damage of three hundred pound And for title shewed That his Father was seised of the Land where c. in Fee and leased the same to the Defendant for one and twenty years and died and that the Land descended to him as his son and heir and shewed that the Waste was done in his time and that the Lease is now expired The Defendant pleaded the generall issue and it was found for the Plaintiffe and damages were assessed by the Jury to fifty pound And in this case it was agreed by the whole Court 1. That if six of the Jury are examined upon a Voyer dire if they have seen the place wasted that it is sufficient and the rest of the Jury need not be examined upon a Voyer dire but onely to the principall 2. It was agreed if the Jury be sworn that they know the place it is sufficient although they be not sworn that they saw it and although that the place wasted be shewed to the Jury by the Plaintiff's servants yet if it be by the commandment of the Sheriffe it is as sufficient as if the same had been shewed unto them by the Sheriff himselfe 4. It was resolved That the eradicating of Whitethorn is waste but not of the Blackthorn according to the Books in 46. E. 3. and 9. H. 6. but if the blackthorn grow in a hedg and the whole hedg be destroyed the same is Waste by Cook chief Justice It was holden also so that it is not Wast to cut Quick-set hedges but it shall be accounted rather good husbandry because they will grow the better 5. It was agreed That if a man hath under-woods of Hasell Willowes Thornes if he useth to cut them and sell them every ten years If the Lessee fell them the same is no wast but if he dig them up by the roots or suffereth the Germinds to be bitten with cattel after they are felled so as they will not grow again the same is a destruction of the Inheritance and an Action of wast will lie for it But if he mow the Stocks with a wood-sythe as he did in the principall Case the same is a malicious Wast and continuall mowing and biting is destruction 6. It was said That in an Action of Wast a man shall not have costs of Suit because the Law doth give the party treble damages And when the generall issue Nul Wast is pleaded and the Plaintiff counted to his damages 100l. the Court doubted whether they could mitigate the damage But 7. It was agreed That in the principal Case although the issue were found for the Plaintiff that he could not have judgment because he declared of Wast done in 8. several closes to his damage of 300l. generally and did not sever the damages And the Jury found That in some of the said Closes there was no Wast committed Wherefore the Court said he could not have judgement through his own default But afterwards at another day Hobart then chief Justice and Warburton Justice said That the verdict was sufficient and good enough and so was also the declaration and that the Plaintiffe might have judgment thereupon But yet the same was adjourned by the Court untill the next Term. Mich. 11. Jacobi in the Common Pleas. 299 CLARK's Case NOte It was said by Cook chief Justice and agreed by the whole Court and 41. and 43. E. 3. c That if a man deliver money unto I. S. to my use That I may have an Action of Debt or account against him for the same at my election And it was agreed also That an Action of Trover lieth for money although it be not in bags but not an Action of Detinue Mich. 11. Jacobi in the Common Pleas. 300 IRELAND and BARKER's Case IN an Action of Wast brought the Writ was That the Abbot and Covent had made a Lease for years c. And it was holden by the Court that it was good although it had been better if the Writ had been That the Abbot with the assent of the Covent made the Lease for that is the usuall form but in substance the Writ is good because the Covent being dead Sons in Law by no intendment can be said to make a Lease But the Dean and Chapter ought of necessity to joyne in making of a Lease because they are all persons able and if the Dean make a Lease without the Chapter the same is not good per curiam if it be of the Chapter Lands And in Adams and Wâ—oâ—â—stey's Case Harris Serjeant observed That the Lease is said to be made by the Abbot and Covent and it is not pleaded to be made by the Abbot with the assent of the Covent Mich. 11 Iacobi In the Common Pleas. 301 The Dean and Canons of Winsor and WEBB's Case IN this Case it was holden by the Court That if a man give Lands unto Dean and Canons and to their Successors and they be dissolved or unto any other Corporations that the Donor shall have back the Lands again for the same is a condition in Law annexed to the Gift and in such Case no Writ of
And it was further said by the Court That if there were but thirty Tythe-sheafs in all that the Owner should not have them for then the Custom should be unreasonable And Day was given to the other side to shew Cause why the Prohibition should not be awarded Mich. 11. Jacobi in the Common-Pleas 325. GANDEN and SYMMON's Case NOte That where a Juror is not challenged by one party who had sufficient cause of challenge and afterwards is challenged by the other side and afterwards the party doth release his challenge in that case the first party cannot challenge the same Juror again because he did foreslow his time of challenge and he had admitted the party for to be indifferent at the first Mich. 11. Jacobi in the Common-Pleas 326. The Bishop of CHICHESTER and STRODWICK's Case IN an Action of Trespass for taking away of Timber and the Boughs of Trees felled The Defendant as to the Timber pleaded Not guilty And as to the Boughs he made a special Justification That there is a Custom within the Mannor of Ashenhurst in the County of Sussex That when the Lord fels or sels Timber-trees that the Lord is to have only the Timber and that the poor Tenants in Coscagio parte Manerii time out of mind have used to have the Branches of the Trees for necessary Estovers to be burnt in necessario focali in terris tenementis And the Opinion of the Court was That the Custom was not well expressed to have Estovers to burn in terris tenementis for that Estovers cannot be appertaining to Lands but to Houses only And therefore whereas the Defendant in the Case did entitle himself to a house and lands and gave in Evidence that the Custom did extend to Lands it was holden that the Evidence did not maintain the Issue And the Custom was alleadged to be That the Lord should have Quicquid valeret ad maremium and that the Freeholders should have ramillos Which as Hobart Chief Justice said is to be meant all the Arms and Boughs for whatsoever is not maremium is ramillum 2. It was holden in this Case That the Non-use or Negligence in not taking of the Boughs did not extinguish nor take away the Custom as it hath been oftentimes resolved in the like case And note that in this Case to confirm the said Custom the Book-case was cited which is in 14. E. 3. Fitz. t' Bar. 277. and the same was given in and avowed for good Evidence where the Case was That the Bishop of C. which shall be intended the Bishop of Chichester brought an Action of Trespass for felling of Trees and carrying them away where the Defendant pleaded That he held a Messuage and a Verge of Land of the Bishop and that all the Tenants of the Bishop within the Manor of A. ought to have all the Windfals of Trees and all the Boughs and Branches c. Which Case as Harris Serjeant conceived was the Case of the very Mannor now in question and the Tenant there as in this Case made a special Justification and there it was holden that it was good and adjudged for the Defendant Also in that Case it was adjudged That the Lord should have Maremium and that the Tenants should have Residuum which shall be intended the Boughs and Branches And the Custom in the Case was adjudged good But because the Defendant alleadged the Custom to be to have the same as Estovers to be burned in terris and gave Evidence only to the Messuage it was found against the Defendant for that the Evidence did not maintain the Issue Mich. 11. Jacobi in the Common-Pleas 327. VAUGHAN's Case IN a Formedon in the Discender the Tenant had been essoined upon the Summons and also upon the View And after was pleaded Ne dona pas the general issue and thereupon issue was joyned And if he might be essoined again after issue joyned was the Question And the Court was of opinion That in a real action the Tenant may be essioned after Issue joyned but not in a personal action by the Statute of Marlebridge And Hobart Chief Justice said That the Statute of Marlebridge gave not any Essoin but only did restrain Essoins and therefore in real Actions the same is left as it was at the Common Law and by the Common Law the Tenant might be Essoined after Issue joyned And note per totam Curiam That if an Essoin be not taken the first day it shall never after be taken Mich. 11. Iacobi in the Common-Pleas 328. CLAY and BARNETS Case IN an Ejectione Firme the Case was this Sir Godfrey Foliamb had issue James his son who had issue Francis And Sir Godfrey Foliamb was seized in Fee of divers Lands as well by purchase as by discent in sundry Towns viz. Chesterfield Brampton c. in the Tenures of A. B. C. c. and dyed James Foliamb his son 7 E. 6. made a Conveyance of divers Lands to Francis Foliamb being his younger son in haec verba viz. Omnia mea Mesuagia terras tentam in Chesterfield Brampton c. modo in tenuri of the said A. B. C. quae pater meus Galfrid Foliamb perquesivit from divers men whom he named in certain And also convey a House called the Hart to the same Francis which came to him by discent by the same Conveyance which was in the occupation of one Celie and not in the Tenures of the said A. B. C. And the great Question upon the whole Conveyance was Whether all the Lands which he had by Discent in the said Towns and in the Occupations and Tenures of the said A. B. C. did pass or only the purchased Lands And it was resolved by the whole Court That the Conveyance did pass only the Lands which he had by purchase except only the said House which was precisely named and conveyed and did not pass the Lands which he had by Discent For if all the Lands which he had by Discent should pass by the general words then the special words which passed the House which he had by Discent should be idle and frivolous and that was one reason ex visceribus causae that only the purchased Lands did pass 2. It was said by Justice Warburton That if a man giveth all his Lands in D. in the Tenures of A. B. and he hath Lands in D. but not in their Tenures that in that case all his Lands in D. passeth So if a man give all his Lands in D. which he had by Discent from his son there all his Lands whatsoever shall pass Hobart acc ' and said That if a man gives all his Lands in the County of Kent if he have Lands within the County they do pass And he said that in a Conveyance every restriction hath his proper operation and in the Conveyance in the principal case there were three restrictions 1. All his â—ands in such Towns viz. Chesterfield Brampton c. 2. All his lands in the
were these viz. Thou usest me now as thy Wife did when she stole my goods Mich. 11. Iacobi in the Common-Pleas 332. ROES and GLOVE 's Case AN action of Debt was brought upon a Bond in Mich. Term 9 Jac and in Hillary Term after the parties were at issue upon the Statute of Usurie and it was found against the Defendant Afterwards Ter. Trin. a Writ of Error was brought retornable Mich. 10. Jacobi in which Term no Errors were assigned And afterwards in Hillary Term following two Errors were assigned the one That there was no such Statute as the Statute of 37 H. 8. of Usurie which was against what he had before confessed by his Plea the second Error was That whereas J. S. of Exeter was retorned of the Jury it was assigned for Error that J. S. of another place was sworn upon the Inquest and in this Case the Court advised the Defendant in the Writ of Error to plead In nullo erratum est By which the Court did seem to incline that they were no Errors Mich. 11. Iacobi in the Common-Pleas 333. BRADLEY and JONES Case IN an action upon the Case the case was That the Defendant did exhibite Articles against the Plaintiff in the Chancery before Dr. Cary and there swore the Articles and afterwards he sued in the Kings Bench and had Process out of that Court upon the Articles sworn in Chancery and for this an action upon the Case was brought and it was adjudged that the action would lie The articles exhibited in the Chancery were That the Plaintiff being an Attorney at Law was a Mainteinor of Juries and Causes and a Barretor and the Defendant prayed the Peace against him in the Kings Bench. And in this Case it was resolved 1. That a man might pray the Peace or Good Behaviour of any other man in any of the Kings Courts but then it must be done in due form of Law and if he do it so no action upon the Case will lie as it was resolved 27 Eliz. in Cutler and Dixons case in the Kings Bench. But it was agreed that if a man sueth in a Court which hath not jurisdiction of the Cause an action upon the Cause will lie but not where the Court hath jurisdiction of the Cause 2. It was resolved That the action did lie in the Case at Bar because he did exhibite the articles in Chancery and did not pursue them there For when he had sworn the articles in the Chancery he could not have a Supplicavit out of the Kings Bench and the Oath and Affidavit in the Chancery doth remain as a Scandal upon Record And Hobart Chief Justice said That every Court ought to intermeddle with their own proper causes and that two Courts are not to joyn in one punishment for punishment is not to be by parcels And he said That if a man claimeth right to the Land of another he is not punishable for it but if he make title vnto a Stranger then he shall be punished for every one ought to meddle with his own business 3. It was resolved That when a thing doth concern the Commonwealth the same doth concern every one in particular And so it is lawful for any man to require the Good behaviour of another for the publique good Interest etenim reipublicae ut maleficia punientur 4. It was resolved that the action did lie because the Defendant made the articles in Chancery but a colour of the Good Behaviour and although that the Kings Bench might grant the Good Behaviour without any articles preferred yet when first they begin in another Court they ought to follow the cause there And Hobart the Chief Justice in this case said that an Attorney may not labour Jurors in the behalf of his Client for that is Imbracery Mich. 11. Iacobi in the Common-Pleas 334. FIAL and VARIER's Case IN an Action upon the Case upon an Assumpsit the Case was this A man did promise to stand to the Arbitrement of J. S. J. D. if they made their Arbitrement and Award within ten dayes and if they do not make their Award within ten dayes that if they nominate an Umpier and he make an Award within the said ten dayes that then c. J. S. J. D. did not make any Award within ten dayes but the fourth day after the Submission they did nominate J. N. to be Umpier who made an Award within the said ten dayes and the Defendant would not perform the Award wherefore the Plaintiffe brought the action Sherley Serjeant It is repugnant For the first Arbitrators had the whole ten dayes to make their Award and then cannot the Umpier make an Award within the said ten dayes But the opinion of the whole Court was that the action would lie and that it should be construed thus viz. That if an arbitrement and award be made within ten dayes by the first Arbitrators or by the Umpier For the first Arbitrators may examine the matter for two or three dayes and if they cannot make any award then the Umpier shall have the rest of the ten dayes to make the award and so it was adjudged Mich. 11. Iacobi in the Common-Pleas 335. COLT and GILBERT's Case AN action upon the Case brought for these words He is a Thief and stole a Tree adjudged that the action would lie for the later words do not extenuate the former But Thou art a Thief for thou hast robbed my Orchard are not actionable v. C. 4 par Bretridges Case Mich. 11. Iacobi in the Common-Pleas 336. BROOK's Case AN action upon the Case was brought for words The Plaintiffe set forth in his Declaration That he was a Mercer by his trade and did sell wares and commodities in his shop and did keep divers Books of his trade and Debt-books and that the Defendant said unto Mr. Palmer being the Plaintiffs Father-in-law these words of the Plaintiffe viz. Your Son-in-Law Brooks deceived me in a Reckoning and he keepeth in his shop a false Debt-book And I will shame him in his Calling Nichols Justice and Hobart Chief Justice were of opinion that the action would not lie for those words 1. Because the words single of themselves are not any â—lander and when words will bear an action it ought to be out of the force and strength of the words themselves 2. The first words Thou hast deceived me in a Reckoning will bear no action because it is impossible but that Tradesmen and Merchants which keep Debt-books will sometimes mistake one Figure for another and so the same doth turn to the prejudice and damage of another against the will of the party himself And so the subsequent words He keepeth a false Debt-book are not actionable because it may be falsified by the Servants of the party and not by the Defendant himself and also it may be false written Et interest reipublicae ut sit finis litium and it should be a cause of many Suits if such a nice construction
Deed which bears date beyond Sea that the Action will not lie 13 H. 4. 5 6. An Obligation bore date in France and was made according to the Law of France 6 R. 2 cap. 2. Where the Specialtie bears date there the Action shall be brought The first book that speaks of Deeds bearing date out of England 20 H. 6. 28 29. 20 E. 4. 1. 21 E 4. 72. You must suppose then That it was at a place in England and that is but a fiction of Law and you shall never make a man subject to the penalty of a Statute upon a fiction of Law C. 11. part 51. A Disseisor makes a Lease for life or years the Disseisee shall not not have an Action of Trespass vi armis against him because he comes in by title For this fiction of Law That the Frank-tenement hath always been in the Disseisee shall not have Relation to make him who comes in by title to be a Trespassor vi armis 18 H. 6. 23. A Reversion is expectant upon an estate for life and in the mean time betwixt the Grant and the Attornment the Lessee commits Waste yet although the Attornment relate to make the Grant good ab initio yet the Relation being a fiction of Law will not make the Lessee punishable for Waste Then in this our Case the Deed bears date beyond the Sea and then to make Dunkirk to be in England by a fiction in Law shall not be prejudicial to the Defendant Com. 369. The preamble of a Statute is the best Interpreter of the Statute In the Statute of 13 R. 2. the preamble saith Because the Admirals and their Deputies do hold their Sessions c. in prejudice of the King and of the Common-Law and in destruction of the common people c. But this Deed bearing date beyond the Sea is no prejudice to the King nor to his Franchises nor to his people to be sued in the Admiralty 32 H. 8. cap. 14. The suit within the Admiralty ought to concern Charter-partie and Fraighting of a Ship For by that Statute it was enacted That if any Merchant-stranger as Mullibeck was by long delaying and protracting of time As in our Case otherwise then was agreed between the said Merchants in or by the said Charter-partie c. shall have his remedy before the Admiral which Lord Admiral shall take such Order c. In our Case at Bar It was a Charter-partie made beyond Sea 2. It was for the freighting of a Ship 3. For the breach of it was the the suit in the Court of Admiralty But admit that this point be against me then for the second point I do conceive that he who is punishable by the Statutes must be Prosecutor which the Defendant is not for what he hath done he did by vertue of a Letter of Attorney and he did it in the name of another and it is the Act of the other C. 9. part 76. Combes Case If a man have power to do an Act by force of a Letter of Attorney it ought to be done in the name of him who gives the power 3 Ma. Dyer 132. If Surveyors have power to make Leases if they make the Leases in their own names it is not good but they ought to be made in his name who giveth the power 11 Eliz. Dyer 283 The Statute of R. 3. giveth power to Cestuy que use to make Leases and he makes a Letter of Attorney the Attorney must make the Leases in the name of Cestuy que use who hath the power by the Statute C 9. part 75. A Copyholder may surrender by Attorney because it is his own surrender Vi Perkins 196. 199. A Feoffment with a Letter of Attorney to the wife to make Livery is good but then the wife must make the Livery in the name of her husband Secondly in this Case at Barr the beginning and the prosecution of the Suit was altogether for the benefit of Mullibeck and so it appears by the Records of the Court and no notice is there taken of the Attorney but of the Master L. 5. E. 45. A Writ is directed to the Sheriff and the Under-Sheriff makes a false retorn the Sheriff shall be amerced and not the Under-Sheriff for the Law doth not take notice of him 7 Eliz. Dyer 239. The Customer himself and not his Deputie shall be charged And so in our Case Mullibeck being partie to the whole ought to be accounted the partie prosecuting within the words of the Statutes The Statute of 4 H. 7. cap. 27. is so as they pursue their claims within five years such prosecuting or pursuing ought to be by the partie himself C. 9. part 106. If one of his own head make claim it is not good claim for to avoid the Fine c. The Statute of 16â— R. â— cap. 5. of Premunire makes against me for there the Procurours Councellors Sollicitors Abettors and Attorneys are named by the express words of the Statute and there is an express provision against them But in our Case it is not so for if our Statute had intended to extend to Councellors Attornies c. it would have expresly named them There are divers exceptions which I take to the Verdict First There is variance in the place betwixt the Declaration and the special Verdict for the Declaration layeth the Contract to be made at Dunkirk in England and the special Verdict finds it to be made at Dunkirk extra partes transmarinas Secondly The Declaration is to take in Mariners and the special Verdict is to take in Men. Thirdly the Declaration is A Ship to be prepared and the Verdict is to be in readiness Fourthly The Statute of 15 R. 2. and 2 H. 4. gives the Action by way of VVrit and here it is by Bill 42 Ass 11. There one was taken in Execution and escaped and there a Bill was exhibited for the escape and it was holden because the Statute of West 2. gave a Writ of Debt it shall not be extended by equity to a Bill of Debt Com. 38. a. and Com. 36 37. Plats Case There the Judgment is given upon a Bill for an escape but Mr Plowden said that it seemed to divers a hard Case The Statute of â—8 Eliz. cap. 5. of Informers is in the negative viz. That none shall be admitted or received to pursue any person upon any penal Law but by way of Information or original Action and not otherwise Mich. 29 Eliz. in Clarks Case it was resolved that the Statute of 18 Eliz. was a penal Law and the partie must not be sued by Bill but as the Statute hath prescribed 27 H. 6. 5. There upon Premunire facias it was adjudged good by Bill but there the Action was not directed so precisely by the Statute viz. in what manner the partie should proceed There are no presidents that an Action of Debt hath been brought for pursuing in the Court of Admiralty but in such Case a Prohibition granted only
and for these causes he prayed Judgment for the Defendant Observe Reader the Argument of Calthrope he doth not speak to the point where part of the thing or Contract is upon the Sea and part upon the Land as it was urged by Andrews who argued on the other side The Case was adjourned Pasch 3 Caroli rot 362. in the Kings Bench. 475. IT was cited to be adjudged That if a man purchase the next Avoidance of a Church with an intent to present his son and afterwards he present him that it is Symony within the Statute Pasch 3 Caroli in the Kings Bench. 476. SUTTON the Chancellor of Gloucester's Case IN the Case of Sutton who was Chancellor of Gloucester and put out of his place for insufficiency in the Ecclesiastical court Trotman moved for a Prohibition to the Spiritual Court and said that the Bishop had power to make his Chancellor and he only hath the Examination of him and the allowance of him as it is in the Case of a Parson who is presented to the Bishop and said that if his sufficiency should be afterwards reexamined it would be very perilous Doddridg Justice If an Office of Skill be granted to one for life who hath no skill to execute the Office the grant is void and he hath no Frank-tenement in it A Prohibition is for two causes First to give to us Jurisdiction of that which doth belong unto us And secondly when a thing is done against the Law and in breach of the Law then we use to grant a Prohibition Jones Justice Brook had a grant of the Office of a Herald at Arms for life and the Earl Marshal did suspend him from the execution of his Office because he was ignorant in his profession and full of Error contrary to the Records and it was the opinion of the Justices that because he was ignorant in such his Office of Skill that he had no Freehold in the Office In the Principall Case the Prohibition was denyed And afterwards Sutton was put out of his Office by Sentence in the Spiritual Court for his insufficiency Pasch 3 Caroli in the Kings Bench. 477. SYMM'S Case TWo men having speech together of John Symms and William Symms one of them said The Symmses make Half-crown peeces and John Symms did carrie a Cloak-bag full of clippings And whether the Action would lie was the Question because it was incertain in the person For he did not say these Symmses but The Symmses Like unto the Case where one Farrer being slain and certain persons being Defendants in the Star-Chumber one having speech of them said These Defendants did murder Farrer and it was adjudged that the Action would not lie for two causes First because the words These was uncertain in the person And secondly it was incertain in the thing For it might be that they had Authority to do it as in Mills Case 13 Jac. in the Kings Bench Thou hast Coyned Gold and art a Coyner of Gold Thirdly a Cloakbag of clippings that is also uncertain for it might be clippings of Wooll or other things or it might be clippings of Silver from the Goldsmith For the Goldsmith that maketh Plate maketh clippings And fourthly It is not shewed any certain time when the words were spoken And for these causes it was adjudged that the Action would not lie Pasch 3 Caroli in the Kings Bench. 478. WHITTIE and WESTON'S Case AN Action of Debt was brought upon the Statute of 2 E. 6. and the Plaintiff declared That at the time of the Action brought he was Parson of Merrel and that Weston the Defendant did occupie such Lands and sowed them with corn Anno 21 Jac. and that he did not fet forth his Tythe-corn c. The Defendant pleaded in barr of the Action That W. W. Prior of the Hospital of St John of Jerusalem was of the Order of Hospitalers c. and that he held the said Lands free from the payment of Tythes and that the Priory came by the Statute of 32. H. 8. to the King By vertue of which Statute the King was seised thereof and that the same descended to Queen Elizabeth who granted the Lands unto Weston to hold as amply as the late Prior held and that he was seised of the Lands by vertue of that grant Et propriis manibus suis excolebat Upon this Plea the Plaintiff did demurr in Law Noy argued for the Plantiff There are three points in the Case First If these Lands the possessions of the Hospitalers of St John which they held in their own hands were discharged of Tythes Secondly If there be any thing in the Statute of 32 H. 8. by which the Purchasor of the King should be discharged Thirdly Admitting that it shall be a discharge if the Defendant hath well entitled himself to such discharge or Priviledg First it is not within the Statute of 31 H. 8 cap. 13. for that Statute did not extend to the Order of St John Secondly the Statute of 31 H. 8. cap. 13. doth not discharge any but what was then dissolved Thirdly The Statute of 32 H. 8 cap. 24. gives the possessions of the Hospitalers of St Johns to the King and not the Statute of 31 H. 8. Note that the Defendant did recite the branch of the Statute of 31 H. 8. cap 13. That as well the King his heirs and successors as all and every such person and persons their heirs and assignes which have or hereafter shall have any Monasterie c. or other Religious or Ecclesiastical houses or places shall hold c according to their Estates and Titles discharged and acquitted of the payment of Tythes as freely and in as large and ample manner as the said Abbots c. had or used Also he recited the Statute of 32 H. 8. cap. 7 which Enacts that none shall pay Tythes who by Law Statute or Priviledg ought to be discharged The Statute of 31 H. 8. recites that divers Abbies c. and other Religious and Ecclesiastical houses and places have been granted and given up to the King The Statute enaâ—ts that the King shall have in possession for ever all such late Monasteries c. and other Religious houses and places c. And also enacts that the King shal have not only the said Monasteries c. but also all other Monasteries c. and all other Religious and Ecclesiastical houses which hereafter shall happen to be dissolved suppressed renounced relinquished forfeited given up or by any other means come to the King and shall be deemed adjudged vested by Authority of this present Parliament in the very actual possession and seisin of the King for ever in the state and condition they now be Vi. The Statute And shall have all priviledges c. in as ample manner and form as the late Abbots c. had held or occupied c. The Question then is Whether the men of the Hospital of St John at Jerusalem are intended to be within the
King And as to the second Point they held the Law to be cleer That after that he hath retained as many as by the Law he may retaine and they are sub Signo and Sigillo testified to bee his Chaplains and by reason thereof have qualification to have two Benefices and have two Benefices by vertue thereof although that afterwards they are removed for displeasure or otherwise out of service yet during their lives their Master cannot take other Chaplains which may by this Statute be qualified for so every Baron might have infinite of Chaplains which might be qualified which was not the meaning of the Statute and of that opinion is the Lord Dyer in his Reports And as to the third Point they held That although he were removed from the Domesticall Service of the Family yet hee did remaine Chaplain at large and so a Chaplain within the Statute And further the Opinion of the Court was in this Case That if the party qualified to die the Queen or other Master mentioned in the Statute might qualifie another againe Quod nota The Case was entred Pasch 28. Eliz. Rot. 1130. Scot. Mich. 28 29. Eliz. in the King 's Bench. 48. ONE made a Deed in this forme Noverinit c. that I have demised and to Farme letten all my Lands in D. to I. S. and his Wife and to the Heirs of their two Bodies for thirteen years And it was moved That it was an Estate in taile and 5. E. 3. and 4. H. 4. were vouched But Clenche Justice who was only present in Court was of Opinion That it is but a Lease for years although it was put that Livery was made secundùm formam chartae and his said That if one make a Lease for forty years to another and his Heirs and makes Livery that it is but a Lease for years and he said It is no Livery but rather a giving of Possession But he would have it moved again when the other Justices came Mich. 28 29. Eliz. in the King 's Bench. 49 AN Action upon the Case was brought against an Inn-keeper upon the Custome of England for the safe keeping of the things and Goods of their Guests and he brought his Action in another County then where the Inn was and it was said by Clench Justice That if it be an Action upon the Case upon a Contract or for words and the like transitory things that it may be brought in any County but in this Case he said It ought to be brought where the Inn is Mich. 28 29. Eliz. in the King 's Bench. 50. ONE charged two men as Receivers The Question was Whether one of them might plead Ne unque son Receiver and it was moved That he could not but ought to say Nâ— unque son Receiver absque hoc that he and his Companion were Receivers Clenchè and Suit Justices held That it was well without Traverse and Vide 10. E. 4. 8. Where an Account was brought against one supposing the receipt of Two hundred Marks by the hands of I. P. and R. C. The Defendant as to One hundred Marks pleaded That he received it by the hands of I. P. tantùm without that that he received it by the hands of I. P. and R. C. And as to the other One hundred Marks he received them from the hands of R. C. only without that that he received I. P. and R. C. And there it was doubted Whether it be good or not But in the end of the Case by Fitz. Accompt 14. If an Account be brought against two and one saith He was sole his Receiver and hath accounted before such an Auditor if the Plaintiffe answer unto his Bar he shall abate his Writ because the Receipt is supposed to be a joint Receipt And it is not like unto a Praecipe quod reddat against two Mich. 28 29. Eliz. in the King 's Bench. 51. AN Action upon the Case was brought against one for that he said to another I will give thee Ten Pound to kill such a one and the Question was Whether the Action would lie It was said by Sir Thomas Coâ—kaine that such a Lady had given poyson to such a one to kill her Child within her that the words were not Actionable Also one said That another had put Gun-Powder in the Window of a house to fire such a house and the house was not fired adjudged that the words were not Actionable The Case was betwixt Ramsey of Buckinghamshire and another who said That he lay in wait to have killed him it was found for the Plaintiffe and he had Forty Pound Damages given him But of the Principall Case the Court would advise Mich. 28 29. Eliz. in the Kings Bench. 52 IT was holden by the Court That the Habeas corpus shall be alwayes directed to him who hath the custody of the Body Therefore whereas in the case of one Wickham it was directed to the Maior Bailiffs and Burgesses Exception was taken unto it because the pleas were holden before the Maior Bailiff and Steward but the Exception was dissallowed But otherwise it is in a Writ of Error for that shall be directed to those before whom the Judgment was given In London the Habeas corpus shall be directed Majori Vicecomit London because they have the custodie and not to the whole Corporation But I conceive that the course is that the Writ is directed Majori Aldermannis Vicecomitibus c. Mich. 28 29 Eliz. In the Common Pleas. 53 MARSH and PALFORD's Case OWen moved this Case That one had an upper chamber in Fee and another had the neather or lower part of the same house in Fee and he who had the upper chamber pulled it down and he which had the lower room would not suffer him to build it up again But the opinion of the Justices was that he might build it up again if he did it within convenient time And there it was said that it had been a Question Whether a man might have a Free-hold in an upper chamber Mich. 28 29 Eliz. in the Kings Bench. 54. A Question was moved to the Court Whether Tithe should be paid of Heath Turf and Broom And the opinion of Suit Justice was That if they have paid tithe Wool Milk Calves c. for their cattell which have gone upon the Land that they should not pay tithe of them But some doubted of it and conceived That they ought to say that they have used to pay those Tithes for all other Tithes otherwise they should pay tithe for Heath Turf Broom c. Mich. 28 29. Eliz. in the Kings Bench. 55. TWo Parsons were of two severall Parishes and the one claimed certain Tithes within the Parish of the other and said That he and all his Predecessors Parsons of such a Church scil of D. had used to have the Tithes of such Lands within the Parish of S. and that was pleaded in the Spiritual Court and the Court was moved for to grant
a Prohibition And Suit and Clenche Justices He shall have a Prohibition for he claims onely a portion of Tithes and that by prescription and not meerly as Parson or by reason of the Parsonage but by a collaterall cause viz. by Prescription which is a Temporall cause and thing And it is not materiall whether it be betwixt two Parsons Vide 20. H. 6. 17. Br. Jurisdiction 80. and 11. H. 4. and 35. H. 6. 39. Br. Jurisdiction 3. Where in Trespasse for taking of Tithes the Defendant claimed them as Parson and within his Parish and the Plaintiffe prescribed That he and his predecessors Vicars there had had the Tithes of that place time out of minde c. And the opinion of the Court was that the right of Tithes came in debate betwixt the Vicar and the Parson who were Spirituall persons who might try the right of Tithes And therfore there the Temporall Court should not have the Jurisdiction Mich. 28 29 Eliz. In the Kings Bench. 56 IN an Indictment upon the Statute of 8. H. 6. of Forcible Entry the Case was this One was Lessee for yeers and the Reversion did belong unto the Company of Goldsmiths And one was indicted for a forcible Entry and the words of the Indictment were That expulit disseisivit the Company of Goldsmiths quendam I. S. tenentem expulit Cooke took exception to the Indictment and said that a disseisin might be to one although not in possession as to a Reversioner upon a term for yeers or upon a Wardship but he could not be expulsed if he were not in possession for privatiâ— praesupponit habitum And after it saith that the Tenant was expulsed and two cannot be expulsed where one onely was in possession therefore it ought to have said that the Tenant of the Free-hold was disseised and the Termor expelled and it applyes the word expulit to both And Fuller took another Exception that the Cart is set before the horse For he who had the Free-hold could not be disseised if his Termor were not first ousted and the Indictment is That the Tenant of the Free-hold was expulsed and disseised and then the Termor was expelled But Sui Justice as to that said that the later clause scil et quendam I. S. tenentem c. is but surplusage For if one enter with force and expell the Tenant of the Free-hold it is within the Statute of 8. H. 6. Then Fuller moved that the Indictment doth not shew the place where he expelled him But Cleâ—ch Justice said that that was not material for he could not expell him at another place then upon the Land As a man cannot make a Feoffment by livery and seisin at another place but upon the Land unless a Feoffment with Livery within the view And as to the Objection of Cook that the Indictment is that he disseised and expelled the Tenant of the Free-hold out of the possession of the Free-hold To that he answered that the possession of the Termor is the possession of him in the Reversion Mich. 28 29. Eliz. in the King 's Bench. 57 A Man seised of a Copy-hold in Fee made his Will and thereby he devised the same unto his Wife for her life and that after her death his Wife or her Executors should sell the Land He surrendred to the use of his Wife which was entred in hac forma viz. to the use of his Wife for life Secundùm formam ultimae voluntatis The Woman sold the Land during her life The question was Whether she might sell or not Suit Justice said That the intent doth appear that she might sell during her life for when it saith That she or her Executors should sell after her death it is meant the Estate which is to come after her death for the Wife after her death could not sell The second Point was When the surrender is to the Wife for life secundùm formam ultimae voluntatis Whether here she have the Land for life and the Fee also to sell Clenche If she had not the Fee to sell then the words Secundùm formam ultimae voluntatis should be void for the Surrender to the use of the wife for life gives her an Estate for life without any other words Suit If it were ad usum ultimae voluntatis without speaking what Estate the Wife should have no doubt but shee should have for her own use for life and that afterwards she might sell the Land but he said As the Case is put it is a pretty Case And it was adjourned Mich. 28 29. Eliz. in the Kings Bench. 58 THis Case was moved in Court A Copy-holder committed Waste by which a forfeiture accrued to the Lord who afterwards did accept of the Rent The question was Whether by this acceptance he were concluded of his Entrie for the Forfeiture Cook said He was not for it is not as the Case 45 E. 3. where a Lease is made upon Condition that the Lessee shall not do Waste and he commits Waste and then the Lessor accepts the Rent there he cannot enter But otherwise is it of a Copy-hold for there is a condition in Law and here in Fait and a condition in Fait may save the Land by an Acceptance but a condition in Law cannot for by the condition in Law broken the Estate of the Copyholder is meerly void And the Court agreed That when such a Forfeiture is presented it is not to Entitle the Lord but to give him notice for the Copy-hold is in him by the Forfeiture presently without any Presentment A man made a Lease for years upon condition that he should not assign over his Lease and it was reserving Rent and after he did assign it and then the Lessor accepted the rent there he shall not enter for the condition broken Lessee for years upon condition that he should not do Waste and the Lessor accepts of the Rent for the quarter in which the Waste was done yet he may enter but if he do accept of a second payment of the Rent then it is otherwise but if it were upon condition That if he do waste that his Estate shall cease There no acceptance of the Rent by the Lessor can make the Lease good It was adjourned Mich. 28 29. Eliz. in the Kings Bench. 59 THE Lord Admirall did grant the Office of Clark or Register of the Admirall Court to one Parker and Herold for their lives eorum diuâ—ius viventi And Herold bound himself in a Bond of Five Hundred Pound to Parker that the said Parker should enjoy the Office cum omnibus proficuis during his life And afterwards Herold did interrupt the said Parker in his Office upon which he brought an Action of Debt upon the Bond. The Defendant pleaded That such is the custome That the Admirall might grant the same Office for the life of the Admirall only and that he is dead and so the Office void and that he did interrupt him as it was lawfull
for him to do and demanded Judgement of the Action Upon which Cook did demur in Law and he took divers Exceptions to Herolds Plea 1. That hee hath pleaded a Custome and hath so pleaded it that no Issue can be taken upon it for he saith Quod Vsitatum est quod Admirallis pro tempore existens non potest concedere Officium praedict nisi pro termino vitae suae and doth not shew where the Court is holden and doth not say Quod â—alis habetur consuetudo in curia as he ought and as it is in 4. 5 Phil. Mar. Dyer 152. in an Assize brought of the same Office of Registership of the Admiralty for there he brought Assize de libero tenemento suo in Ratcliffe and alledged Quod per consuetudinem in curia Admiral à tempore c. And he said That the Court hath been used to be holden time out of mind c as well at Ratcliffe as elsewhere And if the place be not alledged then it cannot be known from what place the Visnâ— shall come See also that forme observed in the Book of Entries 75. b. So in an Assize of the Office of Philizer in the Common Pleas it was alledged where the Bench was viz. in Com' Midd ' as it is in my Lord Dyers Reports Also 2. he doth not say That Curia Admirallis is an ancient Court c. as he ought for in 22. H. 6. it is said That where a prescription is alledged and pleaded in a Court he ought to say That is is an ancient Court in qua habetur talis consuetudo c. for a Prescription cannot be in any Court if it be not an ancient Court The third matter was Because that in the Condition of the Bond it is said That they are seised of that Office to them for their lives eorum diutius viventi therefore he shall be estopped to say That it is good only for the life of the Admirall as in 18. E. 4. 4. He cannot speak against the Condition of the Bond although it be but a supposal or recital The fourth matter was Because he hath bound himself that the other should enjoy the same all his life without interruption although that the Office become void by Forfeiture or otherwise yet he cannot have it against his own Bond. And Cook said There is a Case in my Lord Dyers Reports where if the Lessor warrant the Estate of the Lessee if he be ousted by a stranger without Title he shall have no action of Covenant But if the Covenant be That he shall quietly enjoy it against him although that the Lease become void yet the Lessor shall not take advantage against him Clenche Justice If the Party occupy the Office by right or by wrong it is not materiall he is not to interrupt him against his owne Bond. Mich. 28 29. Eliz. in the Kings Bench. 60 AN Action of Debt was brought for an Amerciment in a Court Baron And the Plaintiffe declared That the Defendant was amerced at the Court Baron of the Farmor of the Manor of Cinkford and exception was taken because it might be that he was amerced at another Court of the Farmor and therefore he ought to have said At the Court Baron of the Manor and not at the Court of the Farmor of the Manor Another Exception was That hee said That at such a Court holden before the Steward there he was amerced Whereas in truth the Court Baron is holden before the Suitors because they are the Judges and not the Steward and for that was vouched 4. H. 6. and Fitz Nat. in the Writ of Moderata Misericordia Suit Justice True it is that the Suitors are Judges in Real Causes not in Personal Another Exception was taken That he doth not shew That he had requested or demanded the Amercement But to that it was answered That Licet sepius requisitas was in the Declaration and that is sufficient because it was a Duty before the Request but if it first begin upon the Request to be a Duty then it ought to be alledged In facto that there was a Request Another Exception was That no Custome was alledged that they might amerce for it is not incident of common right unto a Court Baron â—or to amerce but to distrain or seise therefore Custome ought to warrant it The Case was adjourned Mich. 28 29. Eliz. in the Kings Bench. 61. AN Action of Debt was brought upon a Concessit Solvera according to the Law Merchant and the custome of the City of Bristow and Exception was taken because the Plaintiff did not make mention in the Declaration of the custome But because in the end of his Plea he said Protestandâ— se sâ—qui querelam secundùm consuetudinem civitatis Bristow the same was awarded to be good and the Exception disallowed Mich. 28 29. Eliz. in the King 's Bench. 62. SVit Justice said That if the custome of a Manor be That the Homage might make By-Lawes it shall bind the Tenants as well Free-holders as Copy-holders But Tanfiâ—ld of Councell in the Case said That it is no good nor reasonable custome But such By-Lawes may be made by the greater number of the Tenants otherwise they shall not bind them Mich. 28 29. Eliz. in the King 's Bench. 63 The Vicar of Pancras Case THE Vicar of Pancras sued one in the Spirituall Court for Tithes And he pleaded That some of them for which the Vicar did sue did belong to the Parson and that he had paid them to the Parson and prayed a Prohibition Cook He shall not have a Prohibition for by this Plea he hath put in Debate the controversie of the Tithes betwixt the Parson and Vicar and then when both are Spiritual Persons the common Law shall not hold Plea of them as is 35. H. 6. 39. and 31. H 6. Also by this Plea a Modus decimandi is not in question but the right of the Tithes and that doth appertain to the common Law And there Cook said That is holden in 11. H. 7. That Unions and Endowments of Vicarages do appertain to the Spirituall Law Also the prescription of the Defendant was That he had used time out of mind c. to have for horses a giâ—tment her bage 3.d. ob q. and after that they had used to pay for every Cow to the Vicar 4.d. and for the Calfe and Milk of every Cow 6.d. And Cook took exception that such prescription was double and repugnant in it self for he prescribes that he paies for herbage and then he prescribes That he paies for every Cow 4d. which cannot be meant but for herbage of the Cow for it is not for Milk or Calfe of the Cow for he prescribes to pay for them 6.d. He took another Exception That he prescribes that he hath used to pay but doth not shew that he hath paid for so he ought to do for otherwise he shall out the Spirituall Court of Jurisdiction and yet not give
not shew what trees nor how many he might cut and that he hath cut down more then he ought and also he doth not shew when the cutting of them was Vide 6. E. 4. By prescription they may prescribe to hold a Court before the Steward but if there be no custome or Prescription to warrant it then as 4. H. 6. is it is coram Senescalio Sectatoribus Gaudy Every Court Baron is to be holden before the Suitors if there be no Prescription to the contrary But a Leet alwayes before the Steward The Action of Debt was upon the Presentment and the Error is brought upon the defects in the Presentment for if that be not good all is naught Notwithstanding it was said by one at the Bar That the forme of pleading in the book of Entries is That the Court was holden before the Steward if the Action be for debt or Trespass for Amercements or such personall things But if the Action be brought for reall things then it is before the Suitors But notwithstanding that the Judgement for the Causes aforesaid was reversed Mich. 28 29. Eliz. in the Kings Bench. 84 BARKER and FLETWEL'S Case BArker of Ipswich brought an Action of Covenant against the Assignee of his Lessee for years one Fletwell And set forth That whereas he had made a Lease for years reserving Rent with re-entry for non-payment of the Rent and that the Lessee did covenant to build a house upon the Land within the first ten years and that he assigned over his terme And he brought the Action against the Assignee who pleaded That the Lessor did enter and had the Possession for part of the ninth year and if thereby the Covenant were discharged was the demurrer in Law Godfrey Who argued for the Lessor said That by this entrie of the Lessor the Covenant was not suspended As 20. E. 4. 12 BY. Extinguishment 34. The Abbot of D. did grant to W. S. a Corrodie viz. so much bread c. for the term of his life faciend ' talia servitia prout J. N. alii usi sunt focere The Grantee leased back again the Corrodie unto the Abbot for 10. years rendring 3â— rent per annum and he brought Debt for the rent and the Abbot said That he did not the Services and the Grantee said That he was not bound to do them for that by the Lease the Corrodie was suspended And it was holden that it was not suspended Godfâ—â—y held the reason to be because that the service is a Collaterall thing And therefore he said He ought to do it notwithstanding that the Abbot had the Corrodie So in 8. H. 7. 7. Br. Conditions 134. Where Tenant in taile makes a Feoffment in Fee and takes back an estate in Fee and afterwards was bounden in a statute Merchant and then made a Feoffment in Fee upon Condition and died his Issue within age who enters for the Condition broken he was remitted notwithstanding that execution upon the statute was sued against the Father in his life So if Lease be made of a Manor except Herriots Fines and Amercements and that the Lessee shall collect them during the Term although that the Lessor entreth yet the Lessee ought to collect them during the term Also he pleades here That Barker did enter and that generall pleading is doubtfull and the Plea shall be taken strictly against him that pleadeth it and it may be that he entred by wrong and so it may be that he entred by right viz. for not payment of the Rent as in truth his entry was And if Barker did enter lawfully then it was no suspension or extinguishment of the Covenant As 19. R. 2. If Lessee for life commit waste and afterwards alieneth and the Lessor entreth for the Alienation yet after his entry he shall have an Action of Waste against the Lessee So 8. H. 6. 10. Waste 8. but with this difference If the Lessor enter wrongfully there although Waste be done before he shall not have Waste to punish it but otherwise if he enter for the Forfeiture done by the Tenant Also if the Covenant was suspended it was only for the time that the Lessor had the Possession and the Party hath not answered for the time before or after As 16. H. 7. If one be bound to find a Chaplain to say Divine Service within such a Chappel and the Chappel fall down it is a good excuse for the time but if it be built again he must find a Chaplain there Clarke contrary If Lessee for years covenanteth to repair the houses I grant that the same shall charge his Assignee But a Collateral thing as if the Lessee covenant to pay such a sum in gross or to enfeoffe him of the Manor of D the same shall not charge the Assignee no more shall a Covenant to build a new house But here it was said That he had time to build it both before and after the entry of the Lessor Barker To that he answered Not so for if he once disturbed the Covenant is destroyed Godfrey This Case was this Terme in the Common Pleas. Lessee for five years covenanted to build a Mill within the terme and because he had not done it the Lessor brought an Action of Covenant and the Defendant pleaded That within the last three years the Lessor forcibly held him out c. so as he could not build it and by the Opinion of all the Justices he ought to plead That the Lessor with force held him out otherwise it would be no Plea Cook As amicus curiae vouched 35. H. 6. Tit. Barr. If one be bounden to enfeoffe me of such land before Michaelmas there the Obliger in Debt brought upon the Bond pleaded That the Obligee before the day had entred with force into the land so as he could not enfeoffe him and there it was holden That he ought to prove that he was holden out by force Gaudy In the principall Case he ought to have shewed That he would not suffer him to build And the other Justices seemed to be of the same Opinion but yet they said That they would advise upon the Case Mich. 28 29. Eliz. in the Kings Bench. 85 OWen took Exception to a Declaration in an Ejectione firme because it was à Possessione sua ejecit where it ought to be according to the supposal of the Writ Quod à firma sua ejecit Also it was of three closes naming them with a Videlicet containing by estimation 30. Acres and that he said did contain no certainty where he ought to have alledged in Fact that they did contain so many Acres But it was holden by all the Justices That although he doth not put in the Declaration the certainty of the Acres if he give a certain name to them as Green-Close c. that it is good And as to the other Exception viz. Ejecit à Possessione inde that the word inde had relation to the Farme and shall be as much as
upon Evidence to the Jury the Case appeared to be viz. That there was Lessee for years and afterwards the Lessor made a Deed of Feoffment in which were words of Confirmation and in the end of the Deed there was a special Letter of Atturney to make Livery to the Lessee for years and his heirs And it was agreed by all the Justices That the Lessee for years had Election to take the same by way of confirmation or by Feoffment and that the Law doth suspend and expect untill he hath declared his pleasure And it was further adjudged That when he hath made his Election to take it by Livery that it shall be a Feoffment ab initio and by the delivery of the Deed in the mean time nihil operatur Mich. 31. Eliz. in the Common Pleas. 171 A Copy-holder did alledge the custome to be That the Lord of the Manor might grant Copies in Remainder with the assent of the Tenants and not otherwise and that Copies in remainder otherwise granted should be meerly void The question was Whether it were a good custome The Justices did not deliver any opinion in the point But Walmesley Serjeant said That it was a void custome for a Copy-hold Estate is an estate of which the Law doth not take notice and Copy-holders are meer Tenants at will by the common Law and therefore to say That he who hath not an interest should have me at his pleasure aswell as I who am interessed should have him at my pleasure is preposterous and repugnant to reason as 2. H. 4. 27. A custome that the Commoner shall not use his Common before that the Lord hath put in his Cattel is not good for the Commoner hath an interest in the Common which is not reasonable to be restrained at the pleasure of another and 19. Eliz Dyâ—r 257. A custome that a man shall not demise or lease but for six years is a void custome Shuttleworth Serjeant contrary and he said That the reason that this Copy-hold is not within Littletons Estates by Copy is no reason for by the same reason you may overthrow all Copy-hold Estates And he said That this custome might have a lawfull beginning and it seems to bee grounded upon the reason of the common Law that a remainder should not be without the assent of the particular Tenant and therefore it is a good custome And so is the custome that a Woman shall not have Dower if she do not claim it within a year and a day And a custome that a free Tenant shall not alien without a surrender in the Court of the Lord is a good custome It was adjourned 31. Eliz. in the King 's Bench. 172 Sir RALPH EGERTON'S Case UPon a speciall Verdict the Case was this A man being Tenant for life in the right of his Wife he made a Deed of Feoffment Habendum to the Feoffee and his Heirs ad solum opus usum of the Feoffee and his Heirs for the life of the Wife and the Court was cleer of opinion that it was a forfeiture because the Habendum is absolute and the use is another clause and although he doth not limit the use but for life yet the Law limits the remainder of the use to the party who maketh the Feoffment Trinit 29. Eliz. in the King 's Bench. 173 MAYE'S Case IF a man sendeth a Letter by a Carrier to a Merchant for certain Merchandizes to send them to him by the Carrier receiving certain monies and the Merchant sendeth the Goods by the Carrier without the receipt of the Money the same shall not bind the Buyer as it was holden by the Court because it was but a conditionall Bargain and it was the folly of the Merchant to trust the Carrier and therefore in that Case the Vendee was admitted to wage his Law And so if one writeth for Wares and the party sends them by the same Carrier yet if the Carrier doth not deliver them the other may wage his Law in such Case Mich. 30. Eliz. in the Common Pleas. 174 HALTON'S Case THE case was That a Recognizance was acknowleged before Sir N. Read one of the Masters of the Chancery The Recognizee died before the same was enrolled And whether it might be enrolled at the Petition of the Executors of the Recognizee was the question And it was agreed by all the Justices That the same might be enrolled for it was like unto the Conusans of a Fine before a Judge which might be removed out of the hands of the Judge by a Certiorari and yet it is no record untill it be perfected And at that time it was doubted whether the Chancery might help a man who was a purchaser for valuable consideration where there wanteth the word heirs in the Deed of purchase But it was agreed by all the Justices That after a Fine is levied of Land That the Chancery may compell the Tenant to attorne Trinit 31. Eliz. in the Common Pleas. Rot. 1704. 175 BLAGROVE and WOOD'S Case IN Trespass the Question was If a Copy-hold was surrendred or not And the custome was alledged to be That a Copy-holder might surrender out of the Court to the Steward out of the Manor And the Steward was retained onely by word but had no Patent Walmesley He may be Steward by word well enough But Windham and Anderson held That he might be Steward by word onely in possession that is when he holds a Court in possession But he cannot be Steward out of Court without a Patent because he is then out of possession And therefore it was the opinion of the whole Court That the surrender out of Court to the Steward by word was not good Hill 36. Eliz. in the Common Pleas. 176 THe Summons of a Copy-holder to appear at the Lords Court was at the Church and thereupon the Copy-holder did not appear And it was the opinion of the whole Court that the same was no cause of forfeiture of the Copy-hold because it was not especially shewed to be the Custome And it shall be hard to make it a Forfeiture for perhaps the Copy-holder had not notice of it And to that purpose was vouched the Lord Dacres and Harlestoâ—s case And they held that notice ought to be given to the person and the Refusall must be willfull for if a Copy-holder be demanded his rent and he saith that he hath it not the same is no forfeiture but the deniall ought to be a wilfull deniall and so it was said to have been adjudged in one Winters Case Trinit 1. Jacobi in the Common Pleas. Rot. 854. 177 SAPLAND and RIDLER'S Case AFter long Arguments on both sides It was adjudged by all the Justices in this case That where the Custome of a Copy-hold Manor was to admit for life and in remainder for life at any time when there was but one Copy-holder for life in possession and during the minority of the Heir within fourteen years the Gardian in Socage in his own name
did admit a Copy-holder in Remainder for life That the same was a good admittance according to the Custome And that he was a sufficient Dominus pro tempore as to this purpose Although it was objected by Walmesley That the Gardian is but Servus and not Dominus But because it was agreed that he had a lawfull Interest the admittance was good and so it was adjudged 33. Eliz. In the Common Pleas. 178 SHIPWITH and SHEFFIELD'S Case THe Custome of a Copy-hold Manor was That a feme Covert might give Lands to her Husband And if it were a good Custome or not was the Question Fleetwood The Custom is good and vouched 12. E 3. That in York there is such a custome That the Husband might give the Land of his own purchase to his wife during the Coverture and it is a good Custome That an Infant at the age of fifteen years may make a Feoffment 29. E. 3. and the same is good at the Common Law and yet the same all began by custome But the Court was of opinion That the Custome is unreasonable because it cannot have a lawfull Commencement And Anderson Chiefe Justice said That a Custome that an Infant at the age of seven years might make a Feoffment is no good custome because he is not of age of discretion And in this case at Barre It shall be intended that the wife being sub potestate viri did it by the Coherison of her Husband The same Law is of a Custome That the wife may lease to her Husband Fleetwood urged That the custome might be good because the wife was to be examined by the Steward of the Court as the manner is upon a Fine to be examined by a Judge To which the Court said nothing 31. Eliz. in the King's Bench 179 AN Action upon the Case upon an Assumpsit was brought And the Plaintiff layed his Action That such a one did promise him in respect of his labour in another Realme c. to pay him his contentment And he said That Twenty five Pound is his contentment and that he had required the same of the Defendant Cook moved in arrest of Judgement it being found for the Plaintiffe upon Non Assumpsit pleaded that no place was alledged where the contentment was shewed And the opinion of the Court was against him for Gawdy and Wray were of opinion that he might shew his contentment in any Action and so it is where it is to have so much as he can prove he might prove it in the same Action Cook said That it had been moved in stay of Judgement in this Court upon an Assumpsit because the request was not certain And that case was agreed by the Justices because the request is parcell of the Assumpsit and the entire Assumpsit together in such case is the cause of the Action but in this case that he should content him is not the cause of the Assumpsit but only a circumstance of the matter and it was resembled to the Case of 39. H. 6. where a Writ of Annuity was brought for Arrerages against an Abbot pro consilio c. And the Plaintiffe declared that the Councel was ad proficuum Domus and was not alledged in certain and it was holden that the same was not materiall although it were uncertain because it was but an induction and necessary circumstance to the Action And so the Plaintiffe recovered and had Judgement Mich. 29 Eliz. in the King 's Bench. 180 THE Statute of 23. Eliz. cap. 25. is Quod non licuit alicui to engrosse Barley c. and in the Statute there is a Proviso That he may so do so as he convert it into Malt. The question was If in an Information upon that Statute That the Defendant had converted it to Malt he might plead the generall Issue Not guilty and give in Evidence the speciall matter or whether he ought to plead the speciall matter Clench Justice He may plead Not guilty c. for the Proviso is parcel and within the body of the Statute as 27. H. 8. 2. where upon an Information upon the Statute of Farmors it is holden by Fitzherbert That the Vicar may plead Non habuit seu tenuit ad firmam contra formam Statuti c. and yet the Statute in the premises of it restrains every Spirituall Person to take in Farme any Lands c. and afterwards by a Proviso gives him liberty to take Lands for the maintenance of his house c. As upon the Statute of R. 2. If he do plead That he did not enter contra formam Statuti he may give in Evidence that he entred by Title as that his father was seised and died and the same is not like unto the condition of a Bond for that is a severall thing But the Proviso and the Statute is but one Act. Mich. 29. Eliz. in the King 's Bench. 181 NOte It was said by Master Kemp Secondary of the King's Bench That there is a Court within the Tower of London but he said That it was but a Court Baron and said That he can shew a Judgement That no Writ of Error lieth of a Judgement given there And it was a question Whether Process might be awarded to the Lieutenant of the Tower for Execution upon a Judgment given in the Kings Bench because the Defendant was removed and dwelt within the Liberty of the Tower And it was said It could not but the Writ ought to be awarded to the Sheriffs of London and if they returne the Liberties of the Tower then a Non omittas shall be awarded But some Counsellors said That although a Non omittas be awarded yet the Sheriffs durst not go unto the Liberties of the Tower to serve the Process 2 Jacobi in the Common Pleas. 182 The Lady STOWELL'S Case IT was adjudged in this Case That the wife who is divorced causa adulterii shall have her Dower 3. Jacobi in the Common Pleas. 183 WARNER'S Cafe LEssee for twenty years doth surrender rendring rent during the term It was adjudged a good rent for so many years as the term might have continued 3. Jacobi in the King 's Bench. 184 WHITLOCK and HARTWELL'S Case TWO Joint-Tenants for life the one demised and granted the moyty unto his companion for certain years to begin after his death Adjudged void because it is but a possibility And so is it of a Covenant to stand seised to the use c. as it was adjudged in Barton and Harvey's Case 37. Eliz. 3. Jacobi In the Kings Bench. 185 PINDER'S Case A. devised lands in Fee to his son and many other lands in tail And afterwards he said I will that if my son die without issue within age that the lands in Fee shall go to such a one Item I will that the other lands in tail shall go to others and doth not say in the second Item if the son dieth without issue within age It was adjudged That the second Item should be without
condition 3 Jacobi in the Star-Chamber 186 RUSWELL'S Case A Man took away Corne in the night time to which he had a right and was punished for a Riot in the Star-Chamber because of his company only Hillar 3. Jacobi 187 KINGSTON and HILL'S Case AN Action upon the Case was brought for saying these words viz. Thou art an arrant Papist and it were no matter if such were hanged and thou and such as thou would pull the King out of his Seat if they durst Adjudged that the words were not actionable Et quod querens nihil capiat per Billam Pasch 3 Jacobi in the Common Pleas. 188 NOte It was holden by the Court That if a Fierifacias go to the Sheriffe to do Execution and he levieth the money and delivereth the same to the party yet if it be not paid here in the Court the party may have a new Execution and it shall not be any Plea to say That he hath paid the same to the party for it is not of Record without bringing of the money in Court Vide 11. H. 4. 50. ar Pasch 3. Jacobi in the Common Pleas. 189 DUKE and SMITH'S Case NOte That if he in the reversion suffer a recovery to divers uses his Heirs cannot plead That his father had nothing in the Land at the time of the recovery for he is estopped to say That he was not Tenant to the Praecipe And it was agreed â—That it was a good recovery against him by estoppel Quaere this case Mich. 3. Jacobi in the King's Bench 190 BIRRY'S Case BIrry was committed by the High Commissioners and removed by Habeas corpus into the Kings Bench They returned the Writ with a Certificate That they did commit him for certain causes Ecclesiasticall which generall cause the Court did not allow of They certified at another time That it was for unreverent Carriage and sawcie Speeches to Doctor Newman The Court also disallowed of that cause Birry put in Bail to appear de die in diem and was discharged It was holden That if Birry did not put off his Hat to him or not give him the wall the same were not sufficient causes for them to commit him And it was agreed by the whole Court That whereas the said Commissioners took Bonds of such as they cited to appear before them to answer unto Articles before that the party had seen the Articles that such Bonds were void Bonds Mich. 3. Jacobi in the King 's Bench. 191 ANN MANNOCK'S Case ANN Mannock was indicted in Suffolk upon the Statute of 1. El. cap. 2. for not coming to Church twelve Sundayes together which Indictment was removed into the Kings Bench and Exceptions taken unto it 1. That the Statute is That all Inhabitants within the Realme c. and it is not averred in facto that she did inhabit within the Realme and the Exception was disallowed for if it were otherwise it ought to be shewed on the Defendants part The second Exception That by a Proviso of the Statute of 28. Eliz. cap. 6. it is ordained That none shall be impeached for such offence if he be not indicted at the next Sessions and it appears by the Indictment That the Offence was almost a year before the Indictment and in the mean time many Sessions were or debuerunt to have been And that Exception was also disallowed for perhaps the truth is That there was not any Sessions in the mean time although there ought to have been The third Exception That the Indictment was That she was indicted Coram A. B. sociis Justices of Peace and it doth not name them particularly The Exception was disallowed for that it doth not appear that there were any other Justices there and what was their names And therefore it was said That it differs from the Case of 1. H. 7. of a Fine levied Câ—raâ— A. B. â—â—â—iis suis The fourth Exception was That the words of the Statute are Ought to abide in the Church till the end of Common Prayer Preaching or other Service of God in the Disjunctive and the Indictment was in the Conjunctive The Exception was disallowed for although the words are in the disjunctive yet a man cannot depart so soon as the Service is ended if there be preaching but he ought to continue there for the whole time Pasch 4. Jacobi in the King 's Bench. 192 AN Enfant did acknowledge a Statute and during his Nonage brought an Audita querela to avoid the Statute and had judgment The Conusee at the fall age of the Enfant brought a Writ of Error and reversed the judgment given in the Audita querela and the Enfant the Conusor prayed a new Audita querela but it was denyed by the whole Court Mich. 4. Jacobi in the Common Pleas. 193 PETO and CHITTIE'S Case IT was adjudged in the Court of Common Pleas in this Case That concord with satisfaction is a good plea in Barre in an Ejectione firme Mich. 5. Jacobi in the King 's Bench. 194 TWo Men were bound joyntly in a Bond one as principal and the other as surety the principal dyed Intestate the surety took Administration of his goods and the principal having forfeited the Bond the surety made an agreement with the Creditor and took upon him to discharge the Debt In Debt brought by another Creditor the question was upon fully administred pleaded by the Administrator If by shewing of the Bond and that he had contented it with his own proper Mony whether he might retain so much of the Intestates estate and it was adjudged that he might not For Flemming Chief Justice said that by joyning in the Bond with the principal it became his own Debt Pasch 5. Jacobi in the Common Pleas. 195 TAYLOR and JAME'S Case IN a Replevin by John Taylor against Richard James for taking of a Mare and a Colt in Long Sutton in a place called H. in the County of Somerset The Defendant did avow the taking and shewed That Sir John Spencer was seised of the Manor of Long Sutton whereof the place where c. is parcel and that he and all those whose estate he hath in the said Manor c. have had all Estrayes within in the said Manor and shewed that the Bailiff of Sir John Spencer seised the said Mare and Colt as an Estray and proclaimed them in the three next Market Towns and afterwards the Baiâ—iff did deliver them to the Defendant to keep in the place where c. And if any came and challenged them and could prove that the same did belong to him and pay him for their meate that he should deliver them unto him and then shewed how that the Plaintiff came and claimed them for his own and because he would not prove that they did belong unto him nor pay him for their meate c. he would not deliver them upon which plea there was a Demurrer in Law After argument by the Serjeants Cook Chief Justice said that it was a
the Court of York the Plaintiffe had Judgment that the Defendant should accompt And upon that Judgment the Defendant in the Court there brought a Writ of Error in the Kings Bench. And it was adjudged That no Writ of Error lay in that case because the Judgment to Accompt is but the Conveyance and the Plaintiffe hath not any benefit until he be satisfied by the Award of the Auditors for upon their Award the final Judgment shall be given Mich. 12 Iacobi in the Kings Bench. 357. The Bishop of SALISBURY's Case IT was holden in this Case That if a Bishop Parson or other Ecclesiastical person do cut down Trees upon the Lands unless it be for Reparations of their Ecclesiastical houses and do or suffer to be done any delapidations That they may be punished for the same in the Ecclesiastical Court and a Prohibition will not lie in the Case and that the same is a good cause of deprivation of them of their Ecclesiastical Livings and Dignities But yet for such Wastes done they may be also punished by the Common Law if the party will sue there Vide 2 H. 4. 3. Trin. 13 Iacobi in the Kings Bench. 358. PRAT and the Lord NORTH'S Case A Man was distreined by the Bailiffe of the Lord North for 20s. imposed upon him in the Court-Leet for the erecting and storing of a Dove-Cote And it was said That it cannot properly be called a Nusance but for the destroying of Corn which cannot be but at certain times of the year And therefore it was conceived That the party who was presented might traverse the Nusance to be with his Pidgeons and it was said that a man might keep Pidgeons within his new house all the year or put them out at such a time as they could not destroy the corn And Cook Chief Justice said That there is not any reason that the Lord should have a Dove-Cote more then the Tenant and he asked the Question where the Statute of E. 2. saith Inquiratur de Dove-Cotes erected without Licence Who should give the Licence Ad quod non fuit responsum In Mich. Term following the Case was argued by Damport who said That the erecting of a Dove-Cote by a Freeholder was no Nusance For a Writ of Right lieth of a Dove-Cote and in the Register it is preferred and named before Land Garden c. But he said that there was a fatal defect in the Plea which was That the Presentment at the Leet was That Prat had erected a Dove-Cote unlawfully and did not say ad commune nocumentum as it ought to be otherwise it is not presentable in the Leet And therefore although it was otherwise in the Plea That it was ad commune nocumentum the same did not help the defective Presentment Mich. 10 Jacobi in the Common Pleas. 359. GREENWAY and BARKER's Case BEtwixt Greenway and Barker It was moved for a Prohibition to the Court of Admiralty and the Cause was for taking of a Recognisance in which the Principal and his Sureties his heirs goods and lands were bounden And it was in the nature of an Execution at the Common-Law and thereupon they in the Admiral Court made out a Warrant to arrest the body of the Defendant there Dodderidge Serjeant said That it was not a Recognisance at the Common-Law but only a Stipulation in the nature of a Bail at the Common-Law and he said That it was the usual course to pledge goods there in Court to answer the party if sentence were given against him Nichols Serjeant They cannot take a Recognisance and by the Civil Law if the party render his body the Sureties are discharged and Execution ought to be only of the goods for the ship is only arrested and the Libel ought to be only against the ship and goods and not against the party 19 H. 6. acc ' And afterwards Dr. Steward and Dr. James were desired by the Court to deliver their opinions what the Civil Law was in this Case and Doctor Steward said He would not rest upon the Etymologie of the word for if it be a Recognisance Bail or Stipulation it is all one in the Civil Law and in such case he said by their Law Execution might be against the sureties And he argued 1. That ex necessitate it must be agreed that there is an Admiral Court 2. That that Court hath a Jurisdiction And by a Statute made in Henry the 8. time and by another in the time of Queen Elizabeth divers things as Appeals c. were triable by the Civil Law And he said That every Court hath his several form of proceedings and in every Court that form is to be followed which it hath antiently used And as to the proceedings he said That first they do arrest the goods 2. That afterwards the party ought to enter Caution which is not a Bond but only a Surety or Security which doth bind the parties And he said That the word Haeredes was necessary in the Instrument For for the most part the Sureties were strangers And he said That Court took no notice of the word Executors and therefore the word Haeredes is used which extends as well to Executors and Administrators as to Heirs And he said That upon a Judgment given in the Court of Admiraltie they may sue forth an Execution of it in forein parts as in France c. And he said That if Contracts be made according to other Laws the same must be tryed according to the Law of that Country the Contract is made Dr. James said That in the same Court there are two manners of proceedings 1 The Manner 2 the Customs of the Court are to be observed And he said that Stipulation ought to be in the Court by coertion which word is derived à stipite by which the party is tyed as he said as a Bear to the stake or as Vlisses to the Mast of the ship And he said In a Judicial stipulation four things are considerable 1 The Judicial Sistem 2. Reparratum habere 3. Judicatum solvere 4. De expensis solvendis as appeareth in Justinians Institutes cap de Satisdationibus For Satisdatio and Stipulatio are all one in the Civil Law And after Cook Chief Justice said That it ought to be confessed that there hath been a Court of Admiralty 2. That their proceedings there ought to be according to the Civil Law And he observed four things 1. The Necessity of the Court 2. The Antiquity of it 3. The Law by which they proceed and lastly the Place to which they are confined And as to the necessity of the Court he said That the Jurisdiction of that Court ought to be maintained by reason of Trade and Traffique betwixt Kingdom and Kingdom for Trade and Traffique is as it were the life of every Kingdom 2. A mans life is in danger by reason of traffique and Merchants venture all their estates and therefore it is but reasonable that they have a place for the trial of
ought to be pleaded 3. That if a man in his pleading is to set forth the jurisdiction of the Court of Justices in Eyre if he say Curia tent c. he need not set forth all the Formalities of it And Mountagu Chief Justice in this Case said That if a man do justifie for divers causes and some of the causes are not good the same doth not make the whole Justification to be void but it is void for that only and good for the residue Hill 16 Iacobi in the Kings Bench. 393 CULLIFORDS Case CVlliford and his Wife brought an Action upon the Case against Knight for words And declared upon these words viz. Thou art Luscombs Hackney a pockey Whore and a theevish Whore and I will prove thee to be so which was found for the Plaintiffe And in arrest of Judgment it was moved that the words were not Actionable which was agreed by the whole Court quia verba accipienda sunt in mitiori sensâ—â—â— And Judgment was staied accordingly Hill 16. Jacobi in the Kings Bench. 371. IN an Action upon the Case for Words The Plaintiffe did relate that he was brought up in the Studie of a Mathematition and a Measurer of Land And that he was a Surveyor and that the Defendant spake these words of him viz. Thou art a Cosener and a cheating Knave and that I can prove And the opinion of the Court was That the words were actionable And Montague Chief Justice said that it was ruled accordingly in 36 Eliz. Rot. 249. betwixt Kirby and Walter And a Surveyor is an Officer of whom the Statute of 5. E. 6. takes notice And he said that Verba de persona intelligenda sunt de Conditione personae And he said that the words are Actionable in regard it is a faculty to be a Measuror of Lands But Dodderidg Justice put it with a difference viz. Betwixt a Measurer of Land by the Pole and one who useth the Art of Geometrie or any of the Mathematicks for he said that in the first Case it is no scandal for that his Credit is not impeached thereby but it is contrary in the other Case because to be a Geometritian or Mathematitian is an Art or faculty which every man doth not attain unto And he put this Case If a man be Bailiffe of my Mannor there no such words can discredit him and by consequence he shall not have an Action for the words because the words do not found in discredit of his Office because the same is not an Office of Skill but an Office of Labour quod nota Hill 16 Jacobi in the Kings Bench. 395. BISHOP and TURNERS Case IN a Prohibition it was holden by the whole Court That for such things as a Church-Warden doth ratione officii no Action will lie by his successor against him in the Spiritual Court and a Churchwarden is not an Officer but a Minister to the Spiritual Court But it was holden that a Churchwarden by the Common Law may maintain an Action upon the Case for defacing of a Monument in the Church Trin. 16 Jacobi in the Kings Bench. 396. BLACKSTON and HEAP'S Case IN an Action of Debt for Rent the Case was this A man possessed of a Tearm for 20 years in the right of his Wife made a Lease for 10 years rendring Rent to him his Executors and assignes and died The Question was whether the Executors or the Wife should have the Rent Haughton and Crook Justices against Montague Chief Justice Doddridg being absent that the Rent was gon But it was agreed by them all that the Executors of the Husband should not have it But Montague held that the Wife should have it But it was agreed that if Lessee for 20 years maketh a Lease for 10 years and afterwards surrendreth his Tearm that the Rent is gon And yet the Tearm for 10 years continues And in the principal Case If the Husband after the Lease made had granted over the Reversion his grantee should not have the Rent But Montague said that in that Case the Wife in Chancery might be Releived for the Rent Mich. 16 Iacobi in the Kings Bench. 397. WAIT and the Inhabitants of STOKE'S Case WAyte a Clothier of Nubery was robbed in the Hundred of Stoke of 50l upon the Saboth day in the time of Divine Service The Question was whether the Hundred were chargeable or not for not making out Hue and Cry And 3 of the Justices were against Montague Chief Justice that they were chargeable For they said that the apprehending of Theeves was a good work and fit for the Saboth day and also fit for the Commonwealth Montague Chief Justice agreed that it was bonum opus and that it might be lawfully done But he said that no man might be compelled upon any penalty to do it upon that day For he said That if he hath a Judgment against I. S. and he comes to the Parish-Church where I. S. is with the Sheriffe and shews unto the Sheriffe I. S. upon the Saboth day and commandeth the Sheriffe to do his Office If the Sheriffe do arrest I. S. in Execution upon that day it is good but if he doth not arrest him it is no escape in the Sheriffe And he took a difference betwixt Ministerial Acts and Judicial Acts for the first might be done upon the Saboth day but Judicial Acts might not But the case was adjudged according to the opinion of the three other Justices Pasch 17 Iacobi in the Kings Bench. 398. SPICER and SPICE'S Case UPon a special Verdict the Case was this A man seised of Gavil-kind Land devised the same to his Wife for life paying out of it 3l per annum to his eldest son and also devised the Land to his second Son paying 3l per annum to his third Son and 20s to such a one his Daughter and whether the second Son had the Land for his life or in Fee was the Question And it was adjudged that he had a Fee-simple in it by reason of the payment of the Collateral Sums of 3l and 20s to his brother and sister which charge to the brother might continue af-after the death of the Devisee and if he should have but an estate for life his charge should continue longer then his own estate And so it was adjudged Mich. 17 Iacobi in the Kings Bench. 399. IN a Habeas Corpora which was to remove two men who were imprisoned in Norwich The Case was this That within Norwich there was a Custom that two men of the said place should be chosen yearly to make a Feast for the Bailiffs and upon refusal for to do it that they should be Fined and imprisoned which two men brought to the Barr by the Habeas Corpra were imprisoned for the same cause It was urged and much stood upon That the Custom was no good Custom for the causes and reasons which are delivered in Baggs Case in C. 11. part But yet at the last the Court did remand
a Capias lay upon a force although it did not lie in case of Debt Agreement c. The King is Parens Legum because the Laws flowed from him he is Maritus Legum For the Law is as it were under Covert Baron he is Tutor Legum For he is to direct the Laws and they desire aid of him And he said that all the Land of the Kings Debtor are liable to his Debt The word Debitor is nomen equivocum and he is a Debtor who is any ways chargeable for Debt Damages Dutie Rent behind c. The Law amplifies evry thing which is for the Kings benefit or made for the King If the King releaseth all his Debts he releases only debts by Recognizance Judgment Obligation Specialtie or Contract Every thing for the benefit of the King shall be taken largely as every thing against the King shall be taken strictly and the reason why they shall be taken for his benefit is because the King cannot so nearly look to his particular because he 〈◊〉 intended to consider ardua regni pro bono publico The Prerogative Laws is not the Exchequer Law but is the Law of the Realm for the King as the Common Law is the Law of the Realm for the Subject The Kings Bench is a Court for the Pleas of the Crown The Common Pleas is for Pleas betwixt Subject and Subject and the Exchequer is the proper Court for the Kings Revenues 13. E. 4. 6. If the King hath a Rent-charge he by his Prerogative may distrein in any the Lands of the Tenant besides in the Lands charged with the Rent 44. E. 3. 15. although that the partie purchaseth the Lands after the Grant made to the King but then it is not for a Rent but as for a dutie to the King And the King in such case may take the Body Lands and Goods in Execution See the Lord Norths Case Dyer 161. where a man became Debtor to the King upon a simple Contract N. When he was Chancellor of the Augmentation received a Warrant from the Privy Councel testifying the pleasure of King E. 6. That whereas he had sold to R. c. That the said Chancellor should take Order and see the delivery of c. and should take Bond and Sureties for the King for the payment of the money By force of which Warrant he sent one T. his Clark to take a Bond of W. for the payment of the money and he took Bond for the King accordingly and brought the same to the Chancellor his Master and delivered the same to him to the Kings use and presently after he deliverd the same back to T. to deliver over to the Clark of the Court who had the charge of the keeping of all the Kings Bonds and Specialties And when T. had received the same back he practised with R. and W. to deliver them the Bond to be cancelled and so it was done and cancelled And it was holden in that Case because that the said Bond was once in the power and possession of N. that he was chargeable with the Debt But the Queen required the Debt of R. and W. who were able to satisfie the Queen for the same In Mildmay's Case cited before there it was holden That the Queen might take her Remedy either against the Parties who gave the insufficient Warrant or against Mildmay himself at her Election So a man he said shall be lyable for damages to the King for that is taken to be within the word Debita In Porters Case cited before there was neither Fraud Covin nor Negligence and yet the persons who presented Porter to the King to hold the Office were chargeable for his negligence whom they preferred to be Master of the Mint But in that Case The Bodie and goods of Porter were delivered to his Sureties as in Execution to repay them the monie which the King had levied of them These Cases prove that the word Debitor is taken in a large sence That the King shall have for the Debts due to him the Bodie Goods and Lands in Execution The word Goods doth extend to whatsoever he hath 11. H. 7. 26. The King shall have the Debt which is due to his Debtor upon a simple Contract and therein the Debtor of the Debtor shall not wage his Law For after you say that you sue for the King it is the Kings Debt and the King if he please may have Evecution of it An Ejectione firme was brought in the Exchequer by Garraway against R. T. upon an Ejectment of Lands in Wales and it was maintainable in the Exchequer as well as a Suit shall be maintainable here for an Intrusion upon Lands in Wales upon the King himself and the King shall have Execution of the thing and recover Damages as he shall in a Quo minus in satisfaction of a Debt which is due by his Debtor to the King 8. H. 5. 10. There the Kings Debtor could not have Quo minus in the Exchequer The Case there was That a man Indebted to the King was made Executor and by a Quo minus sued one in the Exchequer who was indebted unto his Testator upon a simple Contract as for his proper debt and the Quo minus would not lie because the King in that Case could not sue forth Execution and every Quo minus is the Kings Suit and is in the name of the King 38. Ass 20. A Prior Alien was arrear in Rent to the King The Prior brought a Quo minus in the Exchequer against a Parson for detaining of Tythes here is a variance of the Law and the Court for the Right of Tythes ought to be determined by the Ecclesiastical Law and it was found by Verdict for the Prior. A Serjeant moved That the Court had not jurisdiction of the Cause To whom it was answered that they had and ought to have Jurisdiction of it For that when a thing may turn to the advantage of the King and hasten his business that Court had Jurisdiction of it and divers times the said Court did hold jurisdiction in the like Case and thereupon issue was joyned there and the Reporter made a mirum of it But it seems the Reporter did not understand the Kings Prerogative For it is true That such Suit for Tythes doth not fall into the Jurisdiction of the Kings Bench or Common Pleas but in the Exchequer it is otherwise And if the Suit be by Quo minus it is the Kings Suit At a common persons Suit the Officer cannot break the house and enter but at the Kings Suit he may And a common person cannot enter into a Liberty but the King may if it be a common Liberty But for the most part when the King granteth any Liberty there is a clause of Exception in the Grant That when it shall turn to the prejudice of the King as it may do in a special Case there the King may enter the Liberty and a house is a Common Liberty and the
is in the wife but the cause thereof is because it was once coupled with a possession C. 7. part Nevils Case There was a question whether an Earldom might be entailed and forfeited for Treason which is a thing which he hath not in possession nor use but is inherent in the blood And there resolved that the same cannot be forfeited as to be transferred to the King but it is forfeited by way of discharge and exoneration 12 Eliz. Dyer the Bishop of Durhams Case There if it had not been for the saving the Regal Jurisdiction of the Bishop had been given to the King by the Statute of 26 H. 8. This Statute of 26 H. 8. was made for the dread of the Traitor For the times past saw how dangerous Traitors were who did not regard their lives so as their lands might discend to their issue It was then desperate for the King Prince and Subject For the time to come it was worse The Law doth not presume that a man would commit so horrid an act as Treason so it was cited by Mr. Crook who cited the case That the King cannot grant the goods and lands of one when he shall be attainted of Treason because the Law doth not presume that he will commit Treason If the Law will not presume it wherefore then were the Statutes made against it If the Land be forfeited by the Statute of 26 H. 8. much stronger is it by the Statute of 31 H. 8. But then admit there were a Remitter in the Case yet by the Office found the same is defeated Without Office the Right is in the King Com. 486. c. 5. part 52 where it is said There are two manner of Offices the one which vests the estate and possession of the Land c. in the King where he had but a Right as in the case of Attaindor the Right is in the King by the Act of Parliament and relates by the Office Com. 488. That an Office doth relate 38 E. 3. 31. The King shall have the mean profits The Office found was found in 33 Eliz. and the same is to put the King in by the force of the Attaindor which was 29 H. 8. and so the same devests the Remitter Tenant in tail levieth a Fine and disseiseth the Conusee and dyeth the issue is remitted then proclamations pass now the Fine doth devest the Remitter C. 1. part 47 Tenant in tail suffereth a common Recovery and dyeth before Execution the issue entreth and then Execution is sued the Estate tail is devested by the Execution and so here in our Case it is by the Office C. 7. part 8. Tenant in tail maketh a Lease and dyeth his wife priviment ensient without issue the Donor entreth the Lease is avoided afterwards a Son is born the Lease is revived Com. 488. Tenant in capite makes a Lease for life rendring rent and for non-payment a re-entry and dyeth the rent is behind the heir entreth for non-payment of the rent and afterwards Office is found of the dying seised and that the land is hoâ—den in capite and that the heir was within age In the case the Entry for the Condition broken was revived and the Estate for life revived 3 E. 4. 25. A Disseisor is attainted of Felony the Land is holden of the Crown the Disseisee entreth into the Land and afterwards Office is found that the Disseisor was seised the Remitter is taken out of the Disseisee which is a stronger case then our Case for there was a right of Entire and in our Case it is but a right of Action which is not so strong against the King And for these Causes he concluded That the Judgment given in the Court of Pleas ought to be reversed And so prayed Judgment for the Lord of Sheffield Plaintiffe in the Writ of Error This great Case came afterwards to be argued by all the Judges of England And upon the Argument of the Case the Court was divided in opinions as many having argued for the Defendant Ratcliffe as for the Plaintiffe But then one new Judge being made viz. Sir Henry Yelverton who was before the Kings Sollicitor his opinion and argument swayed the even ballance before and made the opinion the greater for his side which he argued for which was for the Plaintiffe the Lord Sheffield And thereupon Judgment was afterwards given That the Judgment given in the Court of Pleas should be reversed and was reversed accordingly And the Earl Lord Sheffield now Earl of Mulgrave holdeth the said Castle and Mannor of Mulgrave at this day according to the said Judgment Note I have not set here the Arguments of the Judges because they contained nothing almost but what was before in this Case said by the Councel who argued the Case at the Bar. Pasch 21 Jacobi in the Kings Bench. 418. IT was the opinion of Ley Chief Justice Chamberlain and Dodderidge Justices That a Defendants Answer in an English Court is a good Evidence to be given to a Jury against the defendant himself but it is no good Evidence against other parties If an Action be brought against two and at the Assises the Plaintiffe proceeds only against one of them in that case he against whom the Plaintiffe did surcease his suit may be allowed a Witnesse in the Cause And the Judges said That if the Defendants Answer be read to the Jury it is not binding to the Jury and it may be read to them by assent of the parties And it was further said by the Court That if the party cannot find a Witnesse then he is as it were dead unto him And his Deposition in an English Court in a Cause betwixt the same parties Plaintiffe and Defendant may be allowed to be read to the Jury so as the party make oath that he did his endeavour to find his Witnesse but that he could not see him nor hear of him Pasch 21 Iacobi in the Kings Bench. 419. THe Husband a wife seised of Lands in the right of the wife levied a Fine unto the use of themselves for their lives and afterwards to the use of the heirs of the wife Proviso that it shall and may be lawfull to and for the husband and wife at any time during their lives to make Leases for 21 years or 3 lives The wife being Covert made a Lease for 21 years And it was adjudged a good Lease against the husband although it was made when she was a Feme Covert and although it was made by her alone by reason of the Proviso Pasch 21 Jacobi in the Common-Pleas 420. NOte that Hobart Chief Justice said That it was adjudged Mich. 15 Jacobi in the Common-Pleas That in an Action of Debt brought upon a Contract the Defendant cannot wage his Law for part and confesse the Action for the other part And it was also said That so it was adjudged in Tart's Case upon a Shop-book And vide 24 H. 8. Br. Contract 35. A Contract cannot be divided
being made at Dunkirk but to be performed in England The second If Tookley being the Attorney be such a party prosecutor as is within the Statutes The ancient Law of the Admirals Jurisdiction appears in our Books 8 E. 2. Corone 399. Staunton Justice It shall not be accounted the Sea where a man may see the land over the water And the Coroners were to do their office in such case and the County was to take notice thereof 40 Ass 25. Stamford 11. This Commission was at the Common-Law before the Statutes of Pyracie 46 E. 3. tras 38. Statham It is pleaded that the Defendant took the goods as Pyracie c. I infer thereupon that it was a good Justification 7 R. 2. tras 54. Statâ—am Trespass was brought for a Ship and Merchandises taken upon the Sea and holden good which proves that the Common-Law had jurisdiction upon the Sea and not the Admiral 6 R. 2. Protection 46. Protection quia profecturus super altum mare Belknap The Sea is within the Kings jurisdiction and the Sea is as well in the Kings protection as is the Land It may be objected That the Contract was made at Dunkirk and so out of the body of the County and so our Law cannot take notice of it and if the Admiral shall not have jurisdiction in such case it should remain undetermined To that I answer If all the matter were to be done at Dunkirk then all were a Marine case and the Admiral should have jurisdiction but if any part were to be done in England then it is otherwise M. 30 31 Eliz. C. 6 part 47. in Dowdalos case In an Action upon the Case upon Assumpsit the Plaintiff did declare That the Defendant at London did assume that such a ship should sail from Melcomb Regis in Suffolk to Abvile in France The issue was tryed in London because the Contract was made in England Pasch 28 Eliz. Gynne and Constantines Case there because it was part upon the Sea and part upon the Land the tryal was at the Common-Law and not in the Admiral Court 48 E. 3. 2. One did retein three Esquires to serve in France there because the Reteiner was here the tryal was here If a Mariner contract with me for wages to sail in such a ship he shall demand his wages at the Common-Law and not in the Admiral Court vi 39 H. 6. 39. There a Protection super vetilationem Calisiae c. cannot be moraturus because that the Sea is ever ebbing and flowing and doth not stand still So that if any part of the Contract be to be done upon the Land then Common-Law shall have the jurisdiction Wreck of the Sea shall be tryed at the Common-Law because it is cast upon the Land Dyer 326. t' E. 1. Avowry 192. A Replevin was brought of a ship taken upon the coast of Scarborough and carried into Norfolk and it was alleadged to be within the Statute of Malebridge for taking a Distress in one County and carrying of it into another County Bereford The King wills that the Peace be kept as well upon the Sea as upon the Land And our Case differs from Lacy's case C. 2. part Foâ— in that case of Felony it is meer local but Contracts are not so local The second point Whether this be a prosecution within the Statutes because it was done by vertue of a Letter of Attorney from Mullibeck 32 E. 3. barr 264. Annuity 51. Qui per alium facit per seipsum facere videtur The Statute of Merton cap. 10. gave power to make Attorneys in any Court Com. 236. but the Attorney must look at his peril that that which he doth be a lawful act Here Mullibeck himself could not have justified this prosecution nor shall his Attorney â— H. 7. 24. 28 H. 8. 2. Quod per me non possum per alium non possum If an Enfant make a Letter of Attorney to make Livery and Seisin and the Attorney maketh Livery accordingly he is a Disseisor C. 10. part 76. If the Court have not jurisdiction of the Cause the Minister must look to it at his peril otherwise he is punishable Tras 253. One may do that himself which he cannot do by Attorney The Lord may beat his villein but a stranger cannot do it for the Lord the Lord may distrein for Rent when it is not behind and the Tenant shall not have trespass but if the Bailiff distrein when no Rent is arrear trespass lieth against him 2 H. 4. 4. 9 H. 7. 14. In Trespass all are Principals Then the Attorney here and Mullibeck are both Trespassors against the Statutes And the doing of the Attorney at the command of the Master shall not avail him vi Dyer 159. doth conduce to the reason that the Attorney shall be punished It seems this suing in the Court of Admiralty is a Contempt for it is malum prohibitum and so either Mullibeck or the Attorney are punishable And in this case the Plaintiff hath his Election to sue Mullibeck or the Attorney and therefore having sued the Attorney the Action brought against him will well lie Calthrop for the Defendant It was objected That the Court of Admiralty did begin but in the time of King Edw. 3. But Dyer 152. proves the contrary For there in an Assise brought of the Office of Admiralty the Plaintiff doth declare the same to be an Office time out of mind c. which proves it to be a more ancient Office And in the Statute of 2 H. 5. cap. 6. There the words are to enquire of all offences c. as the Admirals after the old custom which proves that it is an ancient Office It 's true Avowry 192. makes against me but the Notes of that Case in writing proves that the book is misprinted I confess if part of the thing be to be done here upon the Land that it is triable at the Common-Law The Defendant in this our Case is not liable to the penalty because at the time of the making of these Statutes it was not known that any Charter-partie was made beyond the Seas 2 E. 3. Oblig 15. Debt was brought upon an Obligation made at Barwick where becaus this Court had not jurisdiction It was adjudged That the Plaintiff nihil capiat per breve Testament 16. A Testament bore date at Cane in Normandy which was proved in England Pole Upon an Obligation which bears date in Normandy a man shall not have an Action here but it is good in case of a Will proved here 6 E. 3. 17 18. The Abbot of Crowband granted an Annuity and the Deed was made in Scotland If the Deed had been the ground of the Action then the Action would not have lien but because the Deed bore date before time of memory the Annuity did lie for the Action was not brought upon the Deed but upon the Prescription 1 E. 3. 1. 18. 8 E. 3. 51. It is ruled where the title is made by a
was not found and so the King was not entitled to rights and priviledges and by consequence so was not his Pattentee 2. It did not appear that the Councel of Lateran 15 Johannis did extend to these Orders which was said to have been created 17 E. 3. whereas indeed it was created in the time of Henry the 1. Regularly this priviledge is not transferrable for it is ratione Ordinis As when the King makes a Duke and gives to him possessions those possessions annexed to the Dukedom are not transferrable over but by special Act of Parliament 35 H. 6. 36. Moile There if there had been special words in the Act of Parliament it had been Frankalmoigne This Priviledge is transferred to the King by the Act of 32 H. 8. and that Statute requires no aid of Regular or Ecclesiastical persons Secondly the words are special And all other things of theirs This Case opposeth not the Bishop of Canterbury's Case C. 3 part For that refers to the Statute of 1 E. 6. which had not so large words The intent of an Act shall be taken largely and beneficially to inlarge the Kings possessions as the grants of the King shall be taken largely and beneficially for the King There is a difference betwixt this Statute of 32 H. 8. and the Statute of 27 H. 8. The copulative words of the Statute of 27 H. 8. are To have all Rights and Interests and Hereditaments C. 11. part 13. pro omnibus demandis c. there the demand shall extend to Temporal demand so All rights and Interest and Inheritance shall be construed All temporal rights c. But the Statute of 32 H. 8. is larger viz. Of what name and nature soever If by the words of the Statute of 31 H. 8. Priviledges Tythes had been given to the King without especial provision after made then what needed the special Clause after was the Objection which hath been made I answer The special Clause was necessary For in pleading otherwise he ought to have shewed what Priviledge and Discharge it was in particular and so the Clause was added for the case of pleading C. 9. part The Abbot of Strata Mercellos case there it is said That if a man plead to have such priviledges as such a one had he ought to shew in particular what those priviledges were But this provision in the Statute of 31 H. 8. was made for the benefit of pleading The Statute of 17 E. 2. which gave the Tythes to the Hospitalers give them by the word of Priviledges for they had their possessions as it were by a new purchase Cook Entries 450. there the Case much differs from this so then the general word Priviledges doth extend to Tythes 14 H. 8. 2. By a grant of All trees Apple-trees will not pass yet if it be of all trees cujuscunque generis naturae nominis aut qualitatis then they will pass C. 3. part 81. By grant of all goods Apparel will not pass Here are special words in the Statute cujuscunque naturae nominis c. Nominla sunt symboa rerum And then call them what you will they are given to the King and intended to be transferred to the King and so there needs no special provision for the discharge of the Tythes For to say that the Priory was of the Order of the Cistertians is sufficient Admit then that the King shall have the Tythes as I have argued he shall then his Pattentee shall have them It is a real discharge in the King and not a discharge in respect of his person only Priviledges of discharge may be transferred as well as Priviledges of profit Then the question further is Whether they of S. Johns of Jerusalem were Ecclesiastical They were Regular as appeareth by the Statute of 32 H. 8. for that saith that they shall be free from Obedience Trin. 8. Jacobi in the Common-Pleas Bowyers case Whore Cook Nichols Warburton and Winch did agree that they were Ecclesiastical Priests The Prior had Parsonages and none could have Parsonages but Ecclesiastical persons 3 E. 3. 11. They had Appropriations which could not be unto Lay-men 22 E. 4. 42. There a Writ of Annuity was brought against the Prior of S. Johns of Jerusalem and it was ruled there that he ought to be named Parson which proves that he was Ecclesiastical 26 H. 8. cap. 2. there it is said That he shall pay First-fruits as other Parsons which proves that he was Parson 42 E. 3. 22. there they are called Ecclesiastical 35 H. 6. 56. they were seised in the right of the Church Linwood lib. cap. 47. de Judiciis That they were Ecclesiastical It was objected that Knight-hood cannot be given to Ecclesiastical persons and they were Knights Popham once Chief Justice of this Court said That he had seen a Commission directed unto a Bishop to Knight all the Parsons within his Diocese and that was the cause that they were called Sir John Sir Thomas and so they continued to be called untill the Reign of Queen Elizabeth Jones and Dodderidge Justices They were Ecclesiastical persons although they were divided from the jurisdiction of the Bishop The Case was adjourned to be further argued Pasch 3 Caroli in the Kings Bench. 479. LANGLEY and STOTE's Case IN an Ejectione firme the Plaintiff declared of an Ejectment 26 Martii 23 Jacobi contra pacem dicti Domini Regis nunc which could not be because King James dyed the 27 of March and so it was not contra pacem Caroli Regis 8 H. 4. 21. An Appeal of Maheim was brought and the Plaintiff declared That he meyhemed in the time of the King that now is and the Writ did suppose the same to be in the time of King R. 2. And for that cause it was adjudged Quod nihil capiat per Breve Pasch 3 Caroli in the Kings Bench. 480. MUTLE and DOE's Case DEbt was brought upon a Bond aud the Plaintiff in his Declaration doth not say hic in Curio prolat It was holden by the Court That although it be in the election of the Defendant to demand Oyer of it yet the Plaintiff ought to shew it The Judgment also was entred Concessum est whereas it ought to have been Ideo consideratum est And for these causes the Judgment was reversed So was it adjudged also the same Term in this Court in Barret and Wheeler's Case Pasch 3 Caroli in the Kings Bench. 481. Serjeant HOSKIN's Case HE was Indicted for nor paving of the Kings high-way in the County of Middlesex in S. Johns street ante tenementaâ— sua And in the Indictment it was not shewed How he came chargeable to pay the same Nor was it shewed that he was seised of any house there nor that he dwelt there nor was it averred that he had any Tenement there The opinion of the Court was that the Indictment was incertain for it might be that his Lessee dwelt in the house and so the Lessee ought to have repaired it and
Jurisdiction It was adjourned Mich. 4. Caroli in the King 's Bench. 502 SHUTFORD and BOROUGH's Case IN an Action upon the Case upon a Promise the Case was this The Defendant had a dog which did kill five of the Plaintiff's sheep and the Defendant in consideration the Plaintiffe would not sue him for the said sheep and also in consideration that the Plaintiff would suffer the Defendant to do away the sheep promised to give him recompence for the said sheep upon request and the Plaintiffe alledged the promise to be made 18. Jacobi and that afterwards 2. Caroli he did request so much of the Defendant for the said sheep The Defendant pleaded in Bar the Statute of 21. Jacobi cap 16. of Limitation of Actions and alledged That the Action was not brought within six years after the cause of action accrued which was the promise And it was adjudged that the plea in Bar was not good for it was resolved That where a thing is to be done upon request that there untill request there is no cause of Action and the time and place of the request is issuable And so was resolved 1. Caroli in the Kings Bench in Peck's Case and Hill 16. Jacobi in the same Court in Hill and Wades Case and in the principall Case the request was 2. Caroli and that was within the time limited by the Statute of 21. Jacobi And the meaning of the Statute was but to barre the Plaintiffe but from the time that he had compleat cause of Action and that was not untill the request made And when divers things are to be done and performed before a man can have an Action there all these things ought to be compleated before the Action can be brought And therefore If a man promise to pay I. S. ten pound when he is married or when he is returned from Rome and ten years after the promise I. S. marrieth or returneth from Rome because the marriage or the Returne from Rome are the causes of the Action that the party shall have six years after his marriage or return to bring his Action although that the promise was made ten years before And in the principall Case the cause of Action is the breach and that cannot be untill after the Request made and where a Request is material it ought to be shewed in pleading And so it was resolved by the whole Court nemine contradicente that the Action was well brought and within the time limited by the Statute And Judgement was entred for the Plaintiffe Mich. 4. Caroli in the Star-Chamber 583 FLOYD and Sr THO. CANNON's Case IT was agreed by the Lord Keeper Coventry and the whole Court in this Case That if a man did exhibite a Bill against another for oppression and layeth in this Bill That the Defendant did oppress A. B. and C. particularly and an hundred men generally That the Plaintiffe by his witnesses must prove that the Defendant hath oppressed A. B. and C. particularly and shall not be allowed to proceed against the Defendant upon the oppression of the others layed generally before his particular oppression of A. B. and C. be proved But if the charge layed be generall and not particular as if the Plaintiffe in his Bill saith That the Defendant hath oppressed an hundred men generally there he may proceed and examine the oppression of any of them And Richardson Chief Justice of the Common Pleas said That if a man exhibiteth a Bill against another for extortion there the Sum certaine which he did extort must be laid particularly in the Bill And he cannot say that the Defendant did extort divers sums from divers men generally And so was it adjudged in Reignolds Case in this Court. Also in every oppression there ought to be a threatning of the party for the voluntary payment of a greater sum where a lesser is due cannot be said extortion And afterwards the Bill of Sir Thomas Cannon was dismissed for want of proofs ex parte Querentis Mich. 4. Caroli in the Star-Chamber 504 HUET and OVERIE's Case IN a Ryot for cutting of corn It was agreed by the whole Court That if a man hath title to corn although that he cometh with a great number to cut it with Sickles it is no Riot but if he hath not any title although that he doth not come with other Weapons then with Sickles and cutteth down the Corn it is a Riot And it was agreed by the whole Court in this Case That Witnesses which were Defendants and which are suppressed by order of the Court although that afterwards there he no proceedings against them yet they shall not be allowed of at the hearing of the Cause in that Court. And this was declared to be the constant rule of that Court. Trinit 5. Caroli in the Kings Bench. 505 The Earle of PEMBROKE and BOSTOCK's Case IN a Quare Impedit Judgment was given and the same Term a Writ of Error is delivered to the same Court before a Writ to the Bishop is awarded to admit the Clark It was holden by the whole Court That the Writ of Error ought to have been allowed without any other Supersedeas because a Writ of Error is a Supersedeas in it self Whitlock Justice If in this Writ of Error the Judgement be affirmed the Defendant in the Writ of Error shall have damage 506 The Bailiffs Aldermen Burgesses and Commonalty of Yarmouth and COWPER's Case IN a quo Warranto brought against the Bailiffs Aldermen c. they did appear by Warrant of Atturney and one of the Bailiffs named in the Warrant did not appear nor agree to it It was holden by the whole Court That the appearance of the major or greater part being recorded was sufficient And it was also holden per curiam that although the Warrant of Atturney was under another Seal then their common Seal yet being under Seal and recorded it cannot be annulled Vide 14. H. 4. If two Coroners be and one maketh a return the same is good but if the other doth deny it then it is void Mich. 8. Caroli in the Kings Bench. 507 LANCASTER's Case against KIGHTLEY and SINEWS JUdgement was given in a Scire facias against the Bail A Writ of Error was brought by the Defendant in the principall Action and the Bail And the opinion of the Court was That a Writ of Error would not lie hecause the Judgements against them were severall but they ought to have severall Writs of Error And the books of 3. H. 7. 14. 3. E. 4. 10. and 2. Eliz. Dyer 180. were vouched And so was it adjudged Hill 11. Jacobi Rot. 1377. in the Exchequer Chamber in Doctor Tennants Case Where a Writ of Error was brought by the Defendant and the Bail and it was adjudged that they could not joine in an Writ of Error but ought to have severall Writs Mich. 8. Caroli in the Kings Bench. 508 EVELEY and ESTON'S Case IN Trespass It was found That a man was Tenant in tail of
practices should be suffered and go unpunished that no mans life was in safety but in continual jeopardy And therefore in this case it was said that pregnant presumption had been sufficient to have acquited the Plaintiff but here the case was very cleer because the matter was confessed by the parties Defendants themselves And in this case Cook Chief Justice and the Lord Chancellour said that a conspiracy ought not to be onely false but malitiose contrived otherwise it will not be a conspiracy and such malice ought to be proved For if a poor Man travelling upon the High-way be robbed by another Man and he knows not the party if afterwards he do accuse such a one of the Robbery and the party accused be found not Guilty he shall not have an Action of conspiracy against the accuser for although he was falsly accused yet he was not malitiously accused and it might be that he took him to be the Offender because he was like unto him who robbed him Secondly It was said by them that by the Law no Man may Begg the Lands or Goods of another man upon such an accusation until the party be convict of the fact and that for divers causes 1. Because before conviction the King hath not an Interest in them for the goods are not forfeit And 2. Because the party till his conviction ought to have his goods to maintain himself with them And 3. Because the goods cannot be seised upon for the Kings use before conviction although they may be put in salva custodia and therefore they said that this was a very great slander which the Defendants layed upon the Lord Viscount Rochester viz. that he had begged the Plaintiffs goods of the King before he was convicted and it was said that if such goods should be begged before conviction of the party that the same would be a main cause that the Jury will not find the Indictment against the party when they are sure his Lands goods and other estate shall be in anothers person and so by consequence should be a great cause that the King might be defrauded of the forfeiture of the goods of Fellons and further it would be a great cause of Rebellion if such Lands and goods should be seised upon and given away before conviction of the party accused And as the Lord Chancellour said the same was the cause of the great Rebellion in the time of King Henry the sixth because the goods of divers were given away to other men before the parties were convicted And Cook said that it appeareth that this was not onely a scandal of divers Gentlemen of Worship whom the Defendants had abused in this thing But even of the King himself And it was not onely scandalum Magnatum But scandalum Magistr Magnatum And he said that it appears in Britton that if a Rebel or base fellow do strike a Man of Dignity that he shall lose his right hand à fortiori in such case when they defame and scandalize them by such impudent practices that they be grievously punished And it should be a very unhappy estate to be a Rich-Man if such Offences should not severely be punished multi delicti propter inopiam The Sentence against the said Defendants was this Reignolds being an Attorney to be degraded cast over the Common Pleas Barre and both the Defendants to lose their Eares to be marked in the Face with a C. for Conspirators to stand upon the Pillory with Papers of there Offences to be Whipped and each of them fined to the King in 500. pound and according to this Sentence Reignolds the same Mich. Term was cast over the Common Pleas Barre by the Cryers of the Court and the other part of the Sentence executed on them both Mich. 11. Jacobi in the Common Pleas. 294 COOKES Case IN a Writ Quare intrusit maritagio non satisfacto It was found for the Plaintiff but no damages were assessed by the Jury and the value of the Marriage was found to be 500. pound And now the question was whether the same might be supplied by a Writ of Enquire of Damages and the Court primâ facie seemed to doubt of the case For where the party may have an attaintment there no damages shall be assessed by the Court if the same be not found by the Jury and therefore the Court would be advised of it but afterwards in the same Term it was adjudged that no Writ of Enquire of damages should Issue But a venire facias de novo was granted to try the Issue again Vide 44. E. 3. the opinion of Thorpe acc Note this was the last Case that Cook Chief Justice did speak to in the Common Pleas for this day he was removed from that Court and made Chief Justice of the Kings Bench. Mich. 11. Jacobi in the Common Pleas. 295 WEDLOCK and HARDING's Case THE Case was this a Man seised of a Messuage holden in Socage in Fee by his will in Writing devised the same to his Cosen by these words viz. I devise my Messuage where I dwell to my Cosen Harding and her Assignes for eight years And also my Cosen Harding shall have all my Inheritances if the Law will And it was adjudged by the whole Court without argument That this was a devise of the Messuage in Fee by these words and that all his other Inheritances passed by the said Will by those generall words Mich. 11. Jacobi in the Common Pleas. 296 ROSSER against WELCH and KEMMIS IN an Action of Debt brought against the Defendants upon severall Praecipes one Judgement is given and the Plaintiffe takes forth a Capias against one of them and arrests his body and afterwards hee takes a Fieri facias against the others And the question was Whether the severall Executions should be allowed and the Court was of opinion they should not for that a man shall have but one satisfaction And therefore in the principall Case because that upon the Fieri facias twenty five pounds was levied if the other who is in prison upon the Execution will pay the other twenty five pound the whole Judgment being but fifty pound the Court awarded that the prisoner should be discharged and the Court was clear of opinion that the partie cannot have a Fieri facias against one and a Capias ad satisfaciendum against the other But it was agreed That he might have a Capias against them both As if a man hath one Judgement against seven persons he may take all their bodies in execution because the body is no satisfaction but onely a gage for the Debt and therewith agreeth 4. H. 7. 8. 5 E. 4. 4. and C. 5. part Bamfeild's Case Mich. 11. Jacobi in the Common Pleas. 297 JENOAR and ALEXANDER's Case IT was moved for a Prohibition to the Court of Requests because that the Court held plea of an Attornment for the complaint there was to compel a man to attorn upon a Covenant to stand seised to uses