by it self and the Declaration only enrolled Godfrey It was resolved in the Case betwixt Pendleton and Hunt Prohibition for tythes that an Agreement betwixt the Parson and any of his Parishioners is a good cause to grant a Prohibition if he libel in the Spiritual Court against such Agreement because the Spiritual Court cannot try it and they will not allow such Plea. Curia The Surmise is as a Writ for which if variance be betwixt the same and the Declaration all his naught CLXXVI Colebourn and Mixstones Case Intrat Hill. 31. Eliz. Rot. 146. Trin. 30. Eliz. In the Kings Bench. COlebourn was sued in the Spiritual Court for that being Executor to one Alice Leigh he had not brought in a true Inventory of all the goods of the said Alice but had omitted and left out a lease of two houses and this suit was at the pursuit of two Daughters of the Testator Colebourn sueth for a Prohibition and surmises and declares how this Lease is extinct and the matter was this H. Leigh was seised of a house called the Marigold and two other houses in London and leased the said two houses to one Alice Cheap for 21 years if she should live so long and afterwards made a Lease in Reversion of the said two houses to the said Alice Leigh for 21 years and afterwards he devised these two houses Devises and also the house called the Marigold to the said Alice Leigh for her life for to bring up his children and died after whose death the said Alice Leigh entred into the said house called the Marigold and took the rents and profits of the said two houses for the space of 7 years virtute testament praedict upon which Declaration the Defendants do demurr in Law. Coke the Declaration is not good and for the matter of it it is clear that by this devise unto Alice her Term in futuro is not extinct without her agreement to it And also in this Case the Devise is not for the benefit of the said Alice Leigh but of her children and she hath liberty to accept or refuse the said estate by devise and to make her election Extinguishment And the Plaintiff hath declared that she hath accepted the Rent reserved upon the Lease of the said two houses for 7 years And therein the Declaration naught in divers respects 1. He hath declared that the said Alice Leigh hath accepted the Rents of the said two houses by reason of the reversion virtue testament praedict by 7 years which is double and treble for acceptance of a Rent at one day scil one rent day is a sufficient election As if the Issue in tail after the death of his Ancestor who hath made a Lease not warranted by the Statute once accepts the Rent the Lease is affirmed but if in plea pleading the acceptance of the said Rent for 3 years be pleaded the same clearly is not good for no good Issue can be taken thereupon 2. This acceptance is not pleaded as the Law wills and in the phrase of the Law viz. to which devise she agreed but pleads the acceptance of the Rent which is matter of evidence the which is not good pleading As 5 H. 7. 1. One sweareth another to enter into his Land and the same to occupy for a certain time Estate executed the same is a Lease in Law and if in pleading the party is to make his title to the same Land he ought to plead it as an expres Lease and not as a Licence and if the Lease be traversed he may give the Licence in evidence Tanfield presently by the devise the estate for life is in the Devisee and the Term extinct by it and that is sufficient for the Plaintiff And if there was any disagreement the same is to be shewed on the other side But if Alice had not notice of the Devise but dieth before notice the same amounteth unto a disagreement And as to the pleading of the Agreement I conceive it s well enough pleaded for if the Lease had not been she might have entred and then if such Entry had been pleaded it had been good enough and then because she could not enter by reason of the said Lease she hath taken the rents and profits which is an actual agreement and as strong as an Entry Also we have shewed that she had entred into the house called the Marigold Assent not to be apportioned of which the Devisor died seised in possession and that is a sufficient agreement for the whole for it is an entire Legacy As 18 E. 3. Variance 63. If the Reversion of three acres be granted and the Tenant for life attorneth for one acre it is a good attornment for the whole for he cannot apportion his assent and 2 E. 4. 13. If the Executor deliver unto the Devisee goods to him devised to redeliver them to him again at such a day the same is a good assent and execution of the Devise and the words of the re-delivery are void Gawdy The devise doth not vest the estate in the Wife until agreement where a man takes in a second degree as in a Remainder the same vests presently before agreement but where he taketh immediatly it is otherwise and he held the agreement was well enough pleaded Wray Presently upon the death of the Testator the Free-hold rested in the Devisee and it was not an Agreement ut supra by taking of the Rents yet the entry into the Marigold was a consent and an Execution of the whole Legacy and as to the rest he agreed with Gawdy Clench The Free-hold rested presently in Alice Leigh before agreement also the entry into the Marigold is an execution of the whole Legacy to the Devisee for her entry shall be adjudged most beneficial for her and that is for all the three houses CLXXVII Stransham and Medcalfes Case Trin. 30 Eliz. In the Kings Bench. 1 Cro. 178. STransham libelled in the Court of the Bishop of Norwich against Medcalfe for a portion of Tithes as Farmor of the Rectory of Dunham the Parson of Stonham came in and said that the Land whereof the Tithes are demanded is in his Parish of Stonham and not in the Parish of Dunham and afterwards sentence passed against Stransham who brought an Appeal and notwithstanding that by the Statute of 32 H. 8. cap. 7. the spiritual Iudges may proceed to make process against the Appellant for costs for the principal matter scil parcel or within such a Parish or not is tryable at the Common Law. Cook now prayed a Consultation and he confessed ut supra that the matter was tryable at the Common Law but yet the costs were not given for the matter but for the unjust vexation No Prohibition for costs in the spiritual Court. and it was his suit and own act to prosecute the same in the Spiritual Court. Note that Stransham had a Prohibition to stay the proceedings for the costs for
in some cases the Plaintiff himself who libelleth may have a Prohibition and that was the case betwixt Wignal and Brook. And afterwards a Consultation was granted by the Court for Stransham had begun the suit in the Spiritual Court in the principal matter and therefore he cannot have a Prohibition for the costs But afterwards Iudgment was stayed for the said Statute speaks specially in case of Tithes where the Court hath Iurisdiction and here it hath not of the matter But it was said that if a Consultation be once granted 1 Cro 277. the party shall never have another Prohibition in the same cause as it was holden in the case betwixt Hoskins and Jones CLXXVIII Chamberlain and Thorps Case Pasch 31 Eliz. Rot. 186. In the Kings Bench. Recognizances in London by custom 1 Cro. 186. IN Debt upon a Recognizance acknowledged in London the Plaintiff declared that London is antiqua Civitas and that they have used time out of mind c. That the Mayor take Recognizances of any person being of full age and not a Feme Covert every day in the year except Sundays Holy-days Counsel days and days of Quarter Sessions and Gaol-delivery And declared further now that the Defendant such a day did acknowledge a Recognizance to him c. Tanfield the Declaration is not good but the custom as it is laid is unreasonable for thereby the Mayor may take Recognizances of Idiots men of Non sanae Memoriae c. nor is it restrained to any persons or to any matters but is too general and therefore cannot be a good custom Gawdy The Declaration is good notwithstanding the Exception for want of averment for that ought to come in on the other side And as to the custom I conceive it is not good for it is hard That they should take Recognizances of all Persons and for all Causes which rise out of the City and through the whole Realm as well as within the City also none shall take a Recognizance but a Iudge of Record and a Recognizance cannot be taken by prescription As to the first Exception Wray agreed with Gawdy and as to the Custom he held the same to be good For it hath been always allowed and their customs are confirmed by Act of Parliament which makes them good But if the custom be not confirmed by Parliament it is not good also it is not an unreasonable Custom for it is for the benefit of the Subjects to have security for their Debts Coke The Recognizance makes the Debt local and therefore 13 Rich. 2. bar 649. Debt was brought in London upon a Recognizance acknowledged in the Chancery at Westminster and the Writ was abated for the Recognizance makes it local there and by him the custom stands with reason The Mayor is such a person who may take a Recognizance for he is a Iudge of Record See 1 H. 7. 20. and Br. Recognizance 8. and the Recognisee cannot have an Action of Debt upon this Recognizance elsewhere than in London For it is not a Debt out of the Iurisdiction of the Court for the Recognizance hath made it local Wray If the Recognisor be within age the same shall come in of the other side and the Plaintiff needs not shew the same in his Declaration Cooke It was agreed betwixt Mabbe and Frend That such a Recognizance was good Tanfield The said Recognizance was taken for Orphans goods which is a thing within their Iurisdiction Clench They of London cannot take Recognizance of more than they can hold plea of it Wray They have used of long time to take Recognizances and their customs are confirmed by Parliament and a more strange custom than this hath been allowed of here before scil That a feme Covert shall sue an Action alone without her Husband for she is a sole Merchant Also they do certifie Recognizances ore tenus Gawdy A feme Covert may have an Action within the City but not here CLXXIX Pierce against Howe Hill. 32 Eliz. Rot. 434. In the Kings Bench. AN Action upon the Case for these words Action upon the case for words 1 Cro. 185. Pierce hath taken a false Oath in the Consistory Court of the Bishop of Exeter and upon the Declaration the Defendant did demur in Law. And by Prideaux these words are Actionable although the perjury be supposed to be committed in the spiritual Court For he shall be excommunicated if he will not appear and he shall do pennance in a White sheet which is as great a disgrace as to be set upon the Pillory And it was ruled in an action upon the case betwixt Dorrington and Dorrington upon these words Thou art a Bastard that an action lyeth and yet Bastardy is a spiritual matter and there determinable So for these words Thou art a Pirate an action lyeth and yet Piracy is not punishable by the common Law but in the Court of Admiralty And these words He hath taken a false oath do amount to these words He is forsworn Wray conceived that the words are not actionable for there is a proviso in the Statute of Eliz. cap. 9. That the said Act shall not extend to any Ecclesiastical Court but that every such offendor shall be and may be punished by such usual and ordinary Laws as heretofore have been and is yet used and frequent in the said Ecclesiastical Court. Gawdy upon these words an action doth not lye for they are not pregnant of any perjury in the Pl. for he may be meer passive in it for if one of the Masters of the Chancery minister an Oath unto any person or any Commissioners c. and the Plaintiff sweareth falsly a man may say That the Master of the Chancery or the Commissioner hath taken a false oath and yet he is not guilty of falsity And afterwards Wray mutata opinione That the Proviso in the said Statute is to this intent That notwithstanding the said Statute such an offence may be enquirable and examined in the Ecclesiastical Court in such manner as it was before but the same doth not take away or restrain the authority of the Common Law but that such an offence may be here examined And it hath been lately adjudged in the Star-Chamber That such perjury was examinable there for it is not restrained and as to the latter exception upon these words he hath taken a false oath it shall be intended actively and not passively and if so the Defendant ought to have so pleaded it and afterwards Iudgment was given for the Plaintiff CLXXX Palmer and Smalbrooks Case Trin. 30 Eliz. In the Kings Bench. 1 Cro. 178. Owen 97. 3 Len. 227. IN an action upon the Case by Palmer against Smalbrook The Plaintiff declared That the Defendant had recovered a certain Debt against A. and thereupon purchased a Writ of Capias against A. to take his body and delivered the said Capias to the Plaintiff being then Sheriff and prayed a Warrant for the serving of the said Capias
magnitudine sufficienti essendi maremium and that the place where they growed was neither Orchard nor Garden It was said by the Court That by the Custom the Copyholder could not cut down such Trees but the Lord might and that the cutting down of such Trees which were not Wast the Copy-holder might justifie without punishment but because by the Verdict it did not appear that the Trees for which the Action was brought were Timber in facto but only de magnitudine effendi maremium the Plaintiff had Iudgment CCCLXVI The Lord Staffords Case Mich. 25 26. Eliz. In the Common Pleas. Extent UPon Recovery in debt against the Lord Stafford certain Lands of the Lord were extended by Elegit The Queen because the Lord Stafford was endebted unto her by Prerogative ousted the Tenant by Elegit Fleetwood Serjeant moved the Court in the behalf of him who recovered and surmised to the Court that the Queen was satisfied and therefore prayed a Re-extent but the Court would not grant it because they were not certain of the matter but advised the party to sue a Scire facia against the said Lord Stafford to know and shew cause why a Re-extent should not issue forth the Queen being satisfied c. CCCLXVII Gibbs and Rowlies Case Mich. 25 26. Eliz. In the Kings Bench. Tithes SYmon Gibbs Parson of Beddington Libelled in the Spiritual Court against Rowlie for Tithe Milk Rowlie upon surmise of a Prescription de modo Decimandi obtained a Prohibition which was against Symon Gibbs Rectorem Ecclesiae parochial de Nether Beddington and the parties were at Issue upon the Prescription Prohibition and it was found for Rowlie Egerton Solicitor moved against the Prohibition because the Libel is against Gibbs Rectorem Ecclesiae paroch de Beddington and the Prohibition was de Nether Beddington and it was not averred that Beddington in the Libel and Nether Beddington is unum idem non diversa It was said by the Court That upon the matter there is not any Prohibition against Rectorem Ecclesiae de Beddington only and therefore said to the Plaintiffs Counsel let the Parson proceed in the Spiritual Court at his peril CCCLXVIII Russell and Handfords Case Mich. 25 26. Eliz. In the Kings Bench. RUssell brought an Action upon the Case against Handford and declared Quod cum quoddam molendinum ab entiquo fuit erectum upon such a River Nusance de quo one Thomas Russell whose Heir the Plaintiff is was seised in his Demesn as of Fee and dyed thereof seised after whose death the same descended to the Plaintiff by force of which the Plaintiff was seised in his Demesn as of Fee and so seised The Defendant upon the same River had levyed a new Mill per quod cursus aquae praedict coarctatus est and upon Not guilty It was found for the Plaintiff It was moved in Arrest of Iudgment That it is not layed in the Declaration that his Mill had been a Mill time out of mind c. And then if it be not an ancient Mill time out of mind Words of Prescription c. it was lawful for the Defendant to erect a new Mill And it was said That these words ab antiquo are not fit or significant words to set forth a Prescription but the words A tempore cujus contrarii memoria hominum non existit are the usual words for such a purpose See the Book of Entries 10 11. See 11 H. 4. 200. If I have a Mill and another levies another Mill there and the Miller hinders the Water to run to my Mill or doth any such Nusance Roll. 140. an Action lyeth without any Prescription as it seems by the Book in 22 H. 6. 14. The Plaintiff declared That he was Lord of such a Town and that he and all his Predecessors Priors of N. Lords of the same Town have had within the same Town four Mills time out of mind c. And that no other person had any Mill in the said Town but the Plaintiff and his Predecessors the said four Mills and that all the Tenants of the Plaintiff within the same Town and all other Resiants there c. ought and time out of mind c. had used to grind at the said Mills of the Plaintiff and that the Defendant one of the Tenants of the Plaintiff had erected and set up a Horse Mill within the said Town and there the Resiants grinded c. And it was holden That peradventure upon such matter an Action lyeth because the Defendant being one of the Tenants of the Plaintiff is bound by the Custom and Prescription so as he hath offended against the privity of the Custom and Prescription And as to the Case in question It was the opinion of all the Iustices Hob. 189. Ante 168. 1 Cro. 415. That if the Mill whereof the Plaintiff hath declared be not an ancient Mill that this Action doth not lye upon the matter eo quod cursus aquae coarctatur But yet at last it was holden by the Court to be good enough notwithstanding the Exception Another Exception was taken to the Declaration because that here is set forth the seisin of the Father of the Plaintiff and the Descent to the Plaintiff by force of which he was seised in his Demesn c. without shewing that after the death of the Father that he entred into the said Mill Seisin in fact and in Law. c. so as no seisin in fact is alleadged but only a seisin in Law and if the Plaintiff was not seised in fact he cannot punish this personal wrong but the Exception was disallowed for such a seisin in Law is sufficient for the maintenance of this Action And afterwards the Plaintiff had Iudgment to recover his Damages See for the Action it self contained in the Declaration 8 Eliz. Dyer 248. CCCLXIX Cleypools Case Mich. 26. Eliz. In the Exchequer Informations upon the Statute of 5 Eliz. of Tillage INformation in the Exchequer against Cleypool upon the Statute of Tillage 5 Eliz. setting forth That the Defendant hath converted three hundred Acres of arable Lands of Tillage to pasture and the same conversion hath continued from 15 Eliz. unto the two and twentieth of Eliz The Defendant as to the Conversion pleaded Not guilty and as to the Continuance the general Pardon by Parliament 23 Eliz. upon which the Attorney general did demur in Law. It was argued That that pardon did not extend to the continuance of the said Conversion And first the Barons were clear of opinion That if A. be seised of Arable Lands and converts the same to pasture and so converted leaseth it to B. who continues it in pasture as he found it he shall be charged by that Statute And it is not any good Construction where the Exception in the pardon is excepting the converting of any Land from Tillage to Pasture made done committed or permitted that the Conversion excepted
as other Writs and Praecipes are returnable in any Court but the Queen her self from whom originally it came shall receive it and also the Message upon it and she her self in such case is Iudge of the contempt and no Record of that Privy Seal doth remain in any Court but the Queen her self shall keep it and then when the Queen is informed of the contempt she makes a Warrant somtimes to the Chancellor to award a Commission somtimes to the Treasurer and Barons of the Exchequer to the same purpose to seize the Lands and that Warrant is signed with the Seal manual of the Queen and the Queen may certifie and set down the cause of such seizure in such Warrant and no other Certificate is made by the Queen and the Queen may certify the same Commission by word of mouth and if the other party will say that the Queen hath not certified it he shall be concluded by the commission which is under the great Seal and diverse Prsidents were shewed openly in Court to that effect And all the matter aforesaid was agreed by the Chancellor Treasurer and the said Iustices and no certificate at all needs to be in the Case and then a superfluous Certificate being nought shall not hurt for Nugation is surplusage Another matter was to consider what interest the Queen hath in the Lands of Fugitives by the common Law And as to that they were all clear of opinion Fugitives that the Queen in such case as aforesaid may seize and assign her interest over And that such Assignees may grant Copy-holds parcel of the Manor assigned which grants shall bind him who cometh in after cum manus Domini regis amoventur and also when the Statutes of 13 and 14 Eliz. come Dy. 375 b. the Statutes do not amend the estate of the Queen but the estate of the Queen doth continue as before and all the Estates under it And there was shewed unto the Court divers Presidents of seizures in such Cases 18 E 2. Edmond de Woodstock Earl of Kent went beyond Sea without Licence of the King and he went with Robert de Mortimer and the King did certifie the same into the Chancery reciting that he had sent his Privy Seal c. but that the said Edmond spretis mandatis nostris redire recusavit upon which issued a commission to seize c. And it was holden that the Queen having seised hy force of the common Law and making a grant of a Copy-hold out of it now when the Statutes of 13 14 Eliz. are made she hath not any estate thereby for she had such interest before and this new seisure after the Statutes works nothing and nothing accrues to her thereby whereof she can make a seisure For she hath departed with the whole before See 23 Eliz. Dyer 376. And note that the grant of the Queen in the case at Bar was quamdiu in manibus nostris fore contigerit And afterwards Iudgment was given that judicium praedictum in omnibus affirmetur XIII Sutton and Dowses Case Ter. Mich. 25 26 Eliz. in the Common Pleas. SUtton Vicar of Longstoke Libelled against Dowse in the spiritual Court Tithes and shewed in his Libel that upon the Erection and Endowment of his Vicaridge four quarters of Corn were assigned to the Vicar out of the Granary of the Prior of B. of the Tithes of the Parson of Longstoke and that the Parson or Fermor of the said Rectory of Longstoke had always paid the said four Quarters of Corn to the said Vicar and all his Predecessors and alledged further that the Lord Sands was seised of the said Rectory and leased the Barn and Tithe-Corn parcel of the said Rectory to the said Dowse his Wife and Son Habendum to Dowse for Term of his life the Remainder to the Wife for Term of her life the Remainder to the Son for life And shewed further that the said Dowse had covenanted with the said Lord Sands to render the said four Quarters of Wheat to the Vicar and his Successors upon which Dowse procured a Prohibition and Sutton prayed a Consultation and it was moved in stay of the Consultation that the Vicar had Libelled upon a Covenant wherein Dowse is taxed to pay the said Corn and that is a lay Title and determinable by the Law of the Land and not in the Ecclesiastical Court But as to that the opinion of the Court was that the Libel is not grounded upon the covenant as the sole Title to the said Corn against Dowse but upon the Endowment of the Vicaridge and the Lease by which Dowse is become Fermor of the Rectory Another matter was moved because that upon the Libel it appeareth that the Lease aforesaid made by the Lord Sands was made to Dowse his Wife and his Son joyntly in the Premisses Habendum ut supra in which case it was objected that Dowse his Wife and his Son are all three Fermors of the said Barn and Tithes joyntly in possession against all whom Sutton ought to have Libelled c. and not against Dowse only for the Habendum hath not severed their estates which were joynt before Co. 1 Iust 783 l. qund tota curia negavit for the Habendum hath severed the joynt estates limited by the Premisses and hath distinguished it into Remainders but if the Habendum had been Habendum successive the estate had remained joynt Another matter was moved because it appeareth upon the Libel that the Parson or Fermor of the said Rectory ought to pay to the Vicar the said Corn and also it appeareth upon the matter that Dowse is not Parson nor Fermor of the said Rectory for the Lord Sands had leased to Dowse and his Son only the Barn and the Tith-Corn parcel of the said Rectory so as Dowse is Fermor but of parcel of the Rectory and the residue of the Rectory doth remain in the Lord Sands in which the said Sut. ought to have Libelled against the Lord Sands and Dowse and not against Dowse only And for that cause the Consultation was denyed And in this case it was further agreed by the Court that if upon a Libel in the spiritual Court the Defendant makes a surmise in Banco to have a Prohibition if such surmise be insufficient the other party needeth not to demur upon it and to have it entred upon Record but as amicus Curiae he shall shew the same to the Court and the Court shall discharge him XIV Punsany and Leaders Case Mich. 25 26 Eliz. In the Kings Bench. OSmond Punsany brought an Action upon the case against Leader and declared Prescription of Foldage that one Bedingfield was seised of the Manor of D. and that he and all those whose estate he hath in the said Manor time out of mind have had Libertatem Faldagij cursum Ovium in the Town of D. pro meliori pasturatione omnium Ovium suorum the Inhabitants of the said Town having any
under the Common Seal authorized one A. to enter in the said Waste and in the behalf of the said Mayor and Burgesses to make election of the said moyety Election c. who did so accordingly And upon this matter gives in evidence the parties did demur in Law and the Iury were discharged 12 Co. 86. 87. Dy. 372. b. 281. Noy 29. And it was holden and resolved by the whole Court that the grant to the Mayor c. was utterly void for the incertainty of the thing granted And if a common person do make such a grant it is good enough and there the Grantee may make his choice where c. and by such choice executed the thing shall be reduced into certainty which choice the Grantee cannot have against the Queen which difference was agreed by the whole Court And it was further holden that this grant was not only void against the Queen her self but also against Sir Walter Hungerford her Patentee It was further holden by the Court that if a common person had made such a grant which ought to be reduced to certainty by Election and the Corporation to whom the grant was made ut supra should not make their election by Attorney but after that they were resolved upon the Land they should make a special warrant of Attorney reciting the grant to them in whih part of the said Waste their grant should take effect East West c. or by buttals c. according to which direction the Attorney is to enter c. XXXVII Watts and Jordens Case Trin. 27. Eliz. In the Common Pleas. IN Debt by Watts against Jorden process continued until the Defendant was Out-lawed and upon the Capias utlagatum he appeared and pleaded to issue which was found for the Plaintiff and Iudgment given accordingly And now came Jourden and cast in a Writ of Error Error and assigned for Error that he appeared upon the Capias utlagatum and pleaded to issue the Original being determined and not revived by Scire facias upon his Charter of pardon Anderson Iustice was of opinion that it was not Error for the Statute of 18 Eliz. had dispensed with it being after verdict for the words of the Statute are For want of any Writ Original or Iudicial Windham Iustice contrary for the Statute doth not extend but where the Original is imbeselled but in this Case it is not imbeselled but in Law determined and at last the Writ of Error was allowed XXXVIII Trin. 23 Eliz. In the Common Pleas. THe Case was A. seised of Lands by his Will devised 3 Len 119. that his Excutors should sell his Lands and died the Executors levy a Fine thereof to one F. taking mony for the same of F. If in title made by the Conusee to the Land by the Fine It be a good plea against the Fine to say Quod partes ad finem nihil habuerunt was the question Fines levyed Anderson conceived that it was But by Windham and Periam upon Not-guilty The Conusee might help himself by giving the special matter in evidence in which Case the Conusee shall be adjudged in not by the Fine but by the Devise As by Windham A. deviseth Devise Co. 1 Inst 113. a. that his Executors shall sell a Reversion of certain Lands of which he dieth seised they sell the same without deed and good for the Vendee is in by the Devise and not by the conveyance of the Executors See 19 H. 6. 23. And by Periam the Conusee may help himself by pleading as he who is in by the Feoffment or grant of Cestuy que use by the Statute of 1 R. 3. XXXIX Albany and the Bishop of St. Asaphs Case Trin. 27 Eliz. In the Common Pleas. ALbany brought a Quare impedit against the Bishop of St. Asaph 1 Cro. 119. who justified for Lapse The Plaintiff by Replication said that before the six months expired he presented to the said Bishop one Bagshaw Quare impedit a Master of Arts and Preacher allowed c. The Defendant by way of Rejoynder said that the Church upon the presentment to which the Action is brought is a Church with Cure of Souls and that the Parishioners there are homines Wallici Wallicam loquentes linguam non aliam And that the said Bagshaw could not speak or understand the Welch Language for which cause he refused him and gave notice to the Plaintiff of such refusal and of the cause of it c. upon which the Plaintiff did demur in Law. And first it was agreed and resolved by the whole Court that in the computation of the six months in such Cases the Reckoning ought not to be according to the Kalender January February c. but Secundum numerum singulorum dierum Co. 2 Inst 361. Co. 6. 61. b. Yel 100. 2 Cro. 141. Departure allowing eight and twenty days to every month Walmesley Serjeant argued for the Plaintiff and he took exception to the Rejoynder for in that the Defendant had departed from his Bar for in the Bar the Defendant intitles himself to the presentment by reason of Lapse and in the Rejoynder he confesseth the presentment of the Plaintff and pleads his refusal of his Clark and shewes the cause of it sc the want of the Welsh Language which is a Departure And he cited divers Cases to the same purpose 27 H 8. 3. In forfeiture of Marriage the Defendant pleaded the Feoffment of the Ancestor of the Heir to divers persons absque hoc that he died in the homage of the Plaintiff the Plaintiff by Replication said that the said Feoffment was made to the use of the said Ancestor and his Heirs The Defendant by Rejoynder saith that the said Ancestor did declare his Will of the said Lands the same was holden a Departure for he might have pleaded the same in Bar and 21 H. 7. 17 18. 37 H 6. 5. in Trespass the Defendant pleaded that I. S. was seised of the Land where c. being Land devisable and devised the same to him and his Heirs the Plaintiff by Replication said that I. S. at the time of the devise was within age c. The Defendant by Rejoynder said that the custom there is that every one of the age of fifteen years might devise his Lands c. the same was holden a departure But to this Exception the Court took not much regard But as to the matter in Law it was argued by Walmesley that the defect of the Welsh Language assigned by the Defendant in the presence of the Plaintiff is not a sufficient Cause of refusal for notwithstanding that it be convenient that such a Presentee have the knowledge of such Language yet by the Law of the Land ignorance of such Language where the party hath more excellent Languages is not any disability and therefore we see that many Bishops in Wales who have the principal Cure of Souls are English-men and the Welsh
Tanfield contrary I confess that the Father ought to have the marriage of his Son and Heir so long as he is sub potestate patris but here the Father hath committed all his interest power and authority in his Son to the Defendant his Master with whom he hath bound his Son Apprentice for seven years during which term the Father hath not any thing to do with his Son or his Marriage Wray The Action Quare filium haeredem c. is not given to the Father because his marriage belongs to him but because of the Education and such was the opinion of Clench Iustice and the marriage doth not belong properly to the Father For if the Son marrieth himself without the leave of the Father there is not any remedy for the Father And afterwards Iudgment was given against the Plaintiff LXIV Bullers Case Pasch 29 Eliz. In the Common Pleas. â—â—â—â—evin EDmund Buller brought a Replevin against two who make Conusans as Baylies to A. for rent arrear reserved upon a lease for life To which the Plaintiff in Bar of the Conusans pleaded that two strangers had right of Entry in the place where 2 Len. 196. c. and that the said two Defendants by their Commandment entred c. and took the Cattle of which the Replevin is brought damage feasant absque hoc that they took them as Baylies to the said A. and upon that Traverse the Defendants did demur in Law. 2 Len. 216. Post 327. Shuttleworth Serjeant the Traverse is not good for by that means the intent of the party shall be put in issue which no Iury can try but only in Case of Recaption See 7 H. 4. 101. by Gascoign If the Bayly upon the distress shews the cause and reason of it he cannot afterwards vary from it but the other party may trice him by Traverse but if he distrain generally without shewing cause then he is at large to shew what cause he will and the other party shall answer to it â— Co. 7â— And it was said by the Court that when a Bayly distreins he ought if he be required to shew the cause of his distress but if he be not required then he is not tied to do it Anderson We were all agreed in the Case betwixt Lowin and Hordin that the Traverse as it is here was well taken The Number Roll of that Case is M. 28 29 Eliz. 2494. LXV Hudson and Leighs Case Pasch 29 Eliz. In the Kings Bench. HUdson recovered against Leigh in an Action of Battery for which a Capias pro fine issued against Leigh and also a Capias ad Satisfaciendum returnable the same Term at one and the same Return Process As to the Capias pro fine the Sheriff returned Cepi and as to the Capias ad Satisfaciendum non est inventus And for this contrariety of the Return the Court was of opinion that the Sheriff should be amerced but it was moved by the Council of the Sheriff Return of the Sheriff that the awarding of the Capias pro fine was meerly void for the Fine is pardoned by the Parliament And it is also Enacted That all process awarded upon such Fines shall be void and then the Capias pro fine being void it matters not how or in what manner it be returned for the Court shall not respect such process nor any return of it and then the Court not having resepect to that Return there is not any contrariety for the Capias ad Satisfaciendum only is returned and not the Capias pro fine And at another day it was moved again the Battery was supposed Junij 1586. and Iudgment given the thirteenth of February the same year upon which issued Capias pro fine Escape 5 Co. â—â— and before the Return thereof the Parliament ended which pardoned such Fines and made all process thereupon void And it was said by the Court that if the Sheriff in such Case takes the party by a Capias pro fine now upon that taking he is in Execution for the party and if the Sheriff let him go at large he shall answer for the escape And in that case the Capias pro fine was well awarded and the Court ought to regard it and the Defendant lawfully taken by virtue of it and also in execution for the party in Iudgment of Law and afterward when the Parliament came and Enacted ut supra although the process be made void thereby the same ought to be meant as to the interest of the King in the Fine and the vexation of the Subject by it but not as to the Execution of the party but the Sheriff shall answer for that Execution And it was also holden by the Court that if the Plaintiff sueth an Elegit then upon the Capias pro fine executed the Defendant shall not be adjudged in Execution for the party for he hath made his Election of another manner of Execution scil of the Land and he shall never resort to an Execution of the body 13 H 7. 12. And as our case is there was an Elegit obtained but it was not on Record nor any Record made of it and therefore the election of the Execution remained to the Plaintiff And as to the point aforesaid that such process shall be void as to the King only not as to the party See now 5 Ja. C. 6. part 79. Sir Edward Phittons Case LXVI Potter and Stedals Case Pasch 29 Eliz. In the Common Pleas. IN Trepass by Samuel Potter against Stedal the Case was Trespass Tenant for life of Land leased parcel thereof to hold at Will and being in possession of the residue levyed a Fine of the whole the Lessor entred into the Land which was let at will in point of forfeiture in the name of the whole it was holden the same is a good entry for the whole Ante 56. But if the Disseisor leaseth for years part of the Land whereof the disseisin was committed Entry 1 Inst 252. and the disseisee afterwards entreth into the Land which continueth in the possession of the Disseisor in the name of the whole the same Entry shall not extend to the Land leased for here the Lessee is in by title but in the other Case not for when Tenant for life leaseth it at will and afterwards levies a Fine the same is a determination of the Will. 16 Eliz. Dyer 377. 1. In the same plea it was holden that if there be lessee for life the remainder for life the remainder in fee Lessee for life in possession levyeth a Fine Sur Conusans de droit c. to his own use upon that Fine a Fee-simple accrues LXVII Leigh and Hanmers Case Pasch 29 Eliz. In the Common Pleas. Debt upon a Recognizance THomas Leigh Esquire brought an Action of Debt upon a Recognizance in the nature of a Statute Staple against John Hanmer Esquire before the Mayor and Aldermen
depending the Writ shall not abate it vid. 21 H. 6. 8. 2 R. 3. 20. Another matter was moved by Anderson because the Defendant had pleaded a Recovery by confession had against her without Averment that it was a true Debt in which Case Covin is presumed Windham and Periam were of opinion that the matter of Covin ought to come in on the part of the Plaintiff which Anderson denyed vid. 9 E. 4. 13 14. 33. tâ—e Cardinalls Case XCII Basset and Kerns Case Roll. Tit. Election Debt by Executors 1 Cro. 819 In Communi Banco Intrat Mich. 26 27 Eliz. Rot. 12. BAsset the Executor of Moris Sheppheard brought debt upon a bond against Kerne the Case was That Kerne was bound to Moris in a Obligation upon Condition that the said Kerne should pay to the said Morris his Executors 1 Roll. 446. Tit. Condition c. at the choice and election of the said Morris within a month after the death of the Lady Kerne thirty pounds or twenty Kine Election to which the Defendant pleaded that the Plaintiff within the month after the death c. did not make any choice or election upon which the Plaintiff did demur in Law And the Court was clear of opinion that it was a good Plea in Bar for the Obligor is not bounden to make a tender of both viz. of the mony and the Riâ—e but the Obligee himself is bounden at his peril to make election within the time limited As if I be bounden to you to make unto you such further assurance within such a time by Fine or Feoffment as you shall chuse it behoveth you to make election of your assurance Fine or Feoffment and in the principal Case the election of the Plaintiff ought to precede the tender of the Defendant vid. the Lord Lisles Case 18 E. 4. 15. 17. 20. 21. Where the Defendant was bound to the said Lord to shew his Evidences touching such a House to the said Lord or his Council the election was to the Defendant to whom he would shew them and there by Brian if I be bound to you to marry your Daughter or to go to York on your Businesses upon request before you require me to marry your Daughter I may do it or go to York which Coke granted vid. 13 E. 4. 4. Where the condition is in the disjunctive before the day of performance the Election is to the Defendant but if at the day he make default the Election is to the Obligee vid. 9 E. 4. 36 37. And by Windham if I be bound unto you in an Obligation of ten pounds to pay to you such a day ten pounds in Gold or Silver if you do not make your election before the day yet the duty remains payable for the thing to be paid is parcel of the penalty quod fuit concessum And as to the principal Case the Court was clear of opinion that upon this matter the Plaintiff should be barred See before this Term Forteleyes Case XCIII Searches Case Mich. 29 30 Eliz. In Communi Banco Antea 68. Habeas Corpus A Habeas Corpus issued forth out of the Court of Common Pleas to the Steward and Marshal of the House c. for one Wil. Search which was returned in this manner viz. quod Domina Regina per litteras suas Patentes suscepit in protectionem suam regiam Johannem Mabbe and his sureties and of her further grace by the said Letters voluit that if any person should arrest or cause to be arrested the said John Mabbe or any of his sureties that then the Marshal of her House or his lawful Deputy might arrest every such person and detain them in Prison until such person should answer before the Privy Council for the contempt And that the said William Search caused one John Preston one of the said sureties of the said John Mabbe to be arrested c. And upon that return the said William Search was discharged And also because that after the said discharge the parties caused the said William Search to be arrested again for the same cause that is by colour of the said protection An Attachment was granted against them Note that the same Term Mich. 29 30 Eliz. Another Habeas Corpus was directed to the Steward and Marshal of the Marshalsey for one Howel Habeas Corpus who made return that the said Howel was committed to his custody per mandatum Francisci Walsingham Militis Principalis Secretarij unius de privato concilio Dominae Reginae and that return was by the Court holden insufficient because the cause upon which he was committed was not set down in the return and therefore day was given to amend the return and now they returned the Writ in this manner ss infra nominatus Johannes Howel commissus fuit c. ex sententia mandato totius concilii privati Dominae Reginae Ita quod corpus ejus habere non possumus c. And that return was also holden by the Court to be insufficient for by whatsoever person or by what means soever he was committed the conclusion of the return ought to be Corpus tamen ejus paratum habeo and if it shall seem good to the Court that the Prisoner shall have his Priviledge and shall be dismis't he shall be discharged but if not then he shall be remanded And the Court took a difference where one is committed by one of the Privy Council for in such case the cause of the committing ought to be set down in the return But contrary where the party is committed by the whole Council there no cause need to be alleadged XCV Bret and Audars Case Mich. 29 30 Eliz. In Communi Banco BRet brought Debt upon an Obligation against Audar Debt upon a Bond to perform Award Owen 7. the Condition of which Obligation was that the Defendant should stand to the Award c. And the Arbitrator awarded that the Defendant should pay unto the Plaintiff ten pounds without naming day or place And as to that the Defendant pleaded that he was always ready and yet is c. without shewing any tender And it was moved That although that would have been a good Plea in debt upon an Arbitrament as the Case is 7 H. 4. 97. See 21 E. 4. 40 41 42. Yet now by the Obligation and the Condition of it the sum is payable in another manner than it was before see the pleading of the Case 21 E. 4. In Debt upon an Obligation to perform the Award That the Award was made between the Terms of Pasch and Trinity and he the eighth of September after tendred the twenty pounds and the Plaintiff refused it And the Lord Anderson put a difference between the Case in 22 H. 6. 57. Tender and the Case at the Bar for in our Case the Obligation doth precede the duty which accrueth by the Award subsequent but in the former Case the duty did precede
petit quod inquiratur per patriam praedict Brett similiter It was moved that the parties should replead for this matter upon which they are at Issue scil the appearance is not triable by Iury but by the Record And the Court was clear of opinion that the parties should replead for the cause aforesaid And it was moved by the Lord Anderson that if A. be bound to appear in the Kings Bench at such a day and A. at the said days goe to the Court but there no process is returned then the party may go to one of the chief Clerks of the Court and pray him to take a Note of his appearance And by Nelson we have an acient form of entry of such Appearance in such Cases Ad hunc diem venit I. S. propter indemnitatem suam Manucaptorum suorum petit quod comparentia sua in Curia hic recordetur And see for the same 38 H. 6. 17. And afterwards the Lord Anderson inspecto Rotulo ex assensu sociorum awarded a Repleader And so by Nelson it hath been done oftentimes here before and put in ure The same Law is where at the day of appearance no Court is holden or the Iustices do not come c. he who was bound to appear ought to have an Appearance recorded in such manner as it may be and if the other party pleadeth Nul tiel Record it behoveth that the Defendant have the Record ready at his peril for this Court cannot write to the Iustices of the Kings Bench for to certifie a Record hither CXV Baxter and Bales Case Mich. 29 30 Eliz. In the Common Pleas. Debt not extinct by administration BAxter brought Debt upon a Bond as Executor of I. against Bale who pleaded that the Plaintiff after the death of the Testator was cited to appear before the Ordinary or his Commissary to prove the Will of the said I. and at the day of his appearance he made default upon which the Ordinary committed Letters of Administration to the Defendant by force of which he did administer so the debt is extinct c. but the whole Court was clear of opinion that the debt was not extinct for now by the probate of the Will the administration is defeated and although the Executor made default at the day which he had by the Citation before the Ordinary yet thereby he is not absolutely debarred but that he may resort to the proving of the Will whensoever he pleaseth But if he had appeared and renounced the Executorship it had been otherwise and the debt is not extinct by the Administration in the mean time CXVI Mich. 29 30 Eliz. In the Common Pleas. IN a Franchise the parties are at Issue upon a matter triable out of the Franchise And it was moved if now the Record should be sent into the Common Pleas and there tryed and after trial sent back into the Franchise Which Periam and Anderson utterly denied and by Periam there is no reason that we should be their Ministers to try Issues joyned before them And it is not like 2 Len. 37. where in a Liberty or Franchise a Forrein Voucher is to warrant Lands in such cases we shall determine the Warranty but that is by a special Statute of Glocester cap. 12. And Nelson Prothonotary said that such an Issue was tryed here of late Quod nota CXVII The Earl of Arundel and the Lord Dacres Case Mich. 29 30 Eliz. At Serjeants Inne PHilip Earl of Arundel and the Lord William Howard his Brother marryed the Daughters and Co-heirs of the late Lord Dacres And now came Francis Lord Dacres as heir male of the said Family and claimed the Inheritance c. And after long sute betwixt both parties they submitted themselves to the award of Gilbert Lord Talbot and of Arthur Lord Grey of Wilton and Windham and Periam Iustices And before them at Serjeants Inne the matter was well debated by the Council learned on both sides and as unto Greistock Lands parcel of the Lands in question the Case was That Tenant in tail makes a Feoffment in fee unto the use of himself for his life the Remainder in tail to his eldest Son with divers Remainders over with a Proviso that if any of the Entailees do any act to interrupt the course of any entail limited by the said Conveyance that then the use limited to such person should cease and go to him who is next inheritable And afterwards Tenant in tail dieth his eldest Son to whom the use in tail was first limited entreth and doth an Act against the said Proviso and yet held himself in and made Leases the Lessees enter the Lessor dieth seised his Heir being within age and in ward to the Queen It was holden by Shutleworth Serjeant Yelverton Godfrey Owen and Coke who were of Council with the Heirs general of the Lord Dacres that here is a Remitter for by this Act against the Proviso the use Remitter and so the possession doth accrue to the enfant Son of him to whom the use in tail was limited by the Tenant in tail Then when the Tenant in tail after his said Feoffment holds himself in this is a disseissin for a Tenancy by sufferance cannot be after the cesser of an estate of Inheritance But admit that he be but a Tenant at sufferance Hâ—b 255. Dy. 54. yet when he makes Leases for years the same is clearly a disseisin and then upon the whole matter a Remitter and although the Enfant taketh by the Statute yet the right of the tail descending to him afterwards by the death of his Father doth remit him as if Tenant in tail maketh a Feoffment in fee to the use of himself for life the Remainder in tail to his eldest Son inheritable to the first intail notwithstanding that the eldest Son takes his Remainder by the Statute and so be in â—â— force thereof yet when by the death of his Father the right of the Entail descends to him he is remitted CXVIII Butler and Ayres Case Mich. 29 30 Eliz. In the Common Pleas. Dower BUtler and his Wife brought a Writ of Dower against Thomas Ayre Son and Heir of Bartholmew Ayre first Husband of the said Margaret Wife of the Plaintiff and demanded Dower of Lands in A. and B the Tenant pleaded never seised que Dower and the Iury found that the said Bartholmew was seised during the Coverture de omnibus tenementis infra script preterquam the Tenements in sic ut dicta Margareta dotari potuit Exception was taken to this Verdict because that this preterquam c. doth confound the Verdict To which it was said by the Court that the preterquam is idle and surplusage for it is of another thing than that which is in demand and the seisin of the first Husband of Lands in A. and B. is confessed and the preterquam works nothing Another matter was objected because here the Iury have assessed damages
And at another day Wray said Dy. 179. that partition by Tenants in common without deed wheresoever it is made is good but in this case it appears that the parties who made the partition were in the house for they were Tenants in common of the Messuage and a close adjoyning to it and made partition that one should have the house 6 Co. 12. and the other the close so as they were not upon the close when they made the partition and then it was void for the close and if for the close then also for the house And Iudgment was given accordingly CXXXVII Cook and Songats Case Pasch 30 Eliz. In the Kings Bench. IN an Action upon the case by Cook against Songat the Plaintiff declared Quod cum quaedam Lis and controversie had been moved betwixt the Plaintiff Lord of the Manor c. and the Defendant claiming certain Lands parcel of the said Manor to hold it by copy and whereas both parties submitted themselves to the Iudgment and Arbitrament of I. S. Counsellor at Law concerning the said Land and the title of the Defendant to it The Defendant in consideration that the Plaintiff promised to the Defendant that if the said I. S. should adjudge the said Copy to be good and sufficient for the title of the Defendant that then he would suffer the Defendant to enjoy the said Land accordingly without molestation The Defendant reciprocally promised the Plaintiff that if the said I. S. should adjuge the said Copy not sufficient to maintain the title of the Defendant that then he would deliver and surrender the possession of the said Land to the Plaintiff without any sute And shewed further that I. S. had awarded the said Copy utterly insufficient c. yet the Defendant did continue the possession of the Land c. And by Godfrey here is not any consideration But by Gawdy the same is a good and sufficient consideration because it is to avoid variances and sutes And Iudgment was given for the Plaintiff CXXXVIII Pawlet and Lawrences Case Pasc 30 Eliz. In the Kings Bench. GEorge Pawlet brought an Action of Trespass against one Lawrence Parson of the Church of D. for the taking of certain Carts loaded with Corn which he claimed as a portion of Tythes in the Right of his Wife and supposed the Trespass to be done the seven and twentieth of August 29 Eliz. upon Not guilty it was given in evidence on the Defendants part that the Plaintiff delivered to him a Licence to be married bearing date the eight and twentieth of August 29 Eliz. and that he married the Plaintiff and his said Wife the same day so as the Trespass was before his title to the Tythes And it was holden by the whole Court that that matter did abate his Bill But it was holden that if the Trespass had been assigned to be committed one day after that it had been good but now it is apparent to the Court that at the time of the Trespass assigned by himself the Plaintiff had not Title and therefore the Action cannot be maintained upon that evidence for which cause the Plaintiff was Non-suit CXXXIX Sir John Braunches Case Mich. 30 Eliz. In the Kings Bench. Forfeiture IN the Case of Sir John Braunch it was said by Cook that if a Copy-holder be dwelling in a Town long distant from the Manor a general warning within the Manor is not sufficient but there ought to be to the person notice of the day when the Court shall be holden c. For his not coming in such case cannot be called a wilful refusal Copy-holder So if a man be so weak and feeble that he cannot travel without danger so if he hath a great Office c. these are good causes of excuse It was also holden that if a Copy-holder makes default at the Court and be there amerced although that the amercement be not estreated or levyed yet it is a dispensation of the forfeiture Gawdy Iustice If the Copy-holder be impotent the Lord may set a Fine upon him and if he will not pay the Fine then it is reason that he shall forfeit his Land. Egerton Sollicitor Warning to the person of the Copy-holder is not necessary for then if the Lord of a Manor hath one Copy-holder of it dwelling in Cornwal and another in York c. the Lord ought to send his Bayliff to give notice of the Court to them which should be very inconvenient and by him continual default at the Court doth amount to a wilful refusal And by the whole Court general warning within the Parish is sufficient 1 Cro. 353. 505. 506. for if the Tenant himself be not Resient upon his Copy-hold but elsewhere his Farmer may send to him notice of the Court And it was further given in evidence that Sir John Braunch had by his Letter of Attorney appointed the Son of his Farmer his Attorney to do the services for him due for his said Copy-hold And it was holden that such a person so appointed might essoin Sir John but not do the services for him for none can do the same but the Tenant himself CXL Wilkes and Persons Case Mich. 30 Eliz. In the Kings Bench. JOhn Wilkes and Margery his Wife and Thomas Persons brought Trespass Quare clausum fregit herbam suam messuit foenum suum asportavit Trespass ad damnum ipsius Johannis Margeriae Thomae And exception was taken that it was not the Hay of the Wife nor she was not damnified by it but her Husband Wray Iustice the Declaration is good enough 1 Cro. 96. Record for although it be not good for the Hay yet clausum fregit herbam messuit makes it good And Iudgment was given for the Plaintiffs CXLI Atkinson and Rolses Case Mich. 30 Eliz. In the Common Pleas. IN an Action upon the case by Atkinson against Rolfe the Plaintiff declared that the Defendant in consideration of the love which he â—ore unto A. his Father did promise that if the Plaintiff would procure a discharge of a Debt of I. S. which his said Father owed to the said I. S. that he would save the Plaintiff harmless against the said I. S. And declared further that he had discharged the Father of the Defendant from the said Debt and is become bounden to the said I. S. in an Obligation for the payment of the said Debt upon which Obligation the said I. S. hath sued the Plaintiff and hath recovered and had execution accordingly and so hath not been saved harmless c. It was objected that the Declaration was not good because the Plaintiff hath not shewed in his Declaration that he had given notice to the Defendant of the said Obligation or of the suit brought against him but that was not allowed but the Declaration was holden to be good notwithstanding the exception Shuttleworth if I be bound to make to you such an assurance as I. S. shall devise I am bound
not set down any place or time of the notification of his contentment for the same is traversable Gawdy The Issue here is non Assumpsit Assumpsit and therefore that matter is out of the Book Cook If one assume to pay twenty pounds to another upon request although the Defendant plead non Assumpsit yet if the place and time of request be not shewed Iudgment many times hath been stayed for no Action without a Request so here without notification of his contentment no Action therefore he ought to shew it Gawdy The ground of this Action is the Assumpsit but that cannot be certain without Declaration and thereof notice ought to be given to make certainty of the duty but not to enforce the promise but in our case without a Request Assumpsit will not lye But here it being but conveyance the certainty of the time and place is not necessary to be shewed but the general form shall serve for it is but inducement As if a man will plead a devise of goods to him and assent of the Executors to take them he need not to shew the time and place of the assent Gawdy at another day said that Iudgment ought to be given for the Plaintiff the Assumpsit is the ground and cause of the Action and the shewing of the contentment is only to reduce the Action to certainty And Iudgment was given for the Plaintiff CLXVIII Musket and Coles Case Trin. 30 Eliz. In the Kings Bench. WIlliam Musket brought an Action upon the Case against Cole 1 Cro. 13. and declared that in consideration that the Plaintiff had payed unto the Defendant forty shillings for the Debt of Symon his Son the Defendant promised to deliver to him omnes tales billas Obligationes in which his Son was bounden to him which thing he would not do and it was found by Verdict for the Plaintiff And it was moved for stay of Iudgment because the Plaintiff had not averred in his Declaration that the said Defendant had Bills or Obligations in which Simon his Son was bounden to the Defendant Averment for if there were none then no damage And see Onlies Case 19 Eliz. Dyer 356. D. in consideration that the Plaintiff had expended divers sums of money circa the businesses of the Defendant promised c. Exception was taken to that Declaration by Manwood and Mounson Iustices because it was not shewed in what businesses certain and betwixt what persons Gawdy The Plaintiff here is not to recover the Bills or Obligations but damages only and therefore needeth not to alledge any Bills in certain And 47 E. 3. 3. A. covenants with B. to assure unto B. and his Heirs omnia terras tenementa quas habet in such Counties and for not assurance an Action of Covenant was brought and the Plaintiff declared that the Defendant had broken the said Covenant and that he had required the Defendant to make a Feoffment unto him of all his Lands and Tenements in the said Counties and the plea was not allowed for the Land is not in demand but only damages to be recovered See also 46 E. 3. 4. and 20 E. 3. And in the principal case the Plaintiff had time enough for the shewing to the Iury what Bills or Obligations for the instructing of the Iury of the damages CLXIX English and Pellitary and Smiths Case Trin. 30 Eliz. In the Kings Bench. Assault and Battery 1 Cro. 139 140. IN an Action of Trespass of Assault and Battery and wounding The Defendants say that they were Lessees of certain Lands and the Plaintiff came to the said Lands and took certain Posts which were upon the Lands and they gently took them from him S. pleaded that he found the Plaintiff and P. contending for the said Posts and he to part them mollite put his hands upon the Plaintiff which is the same c. The Plaintiff replyed De injuriis suis propriis absque tali causa per ipsos P. S. allegat upon which issue was joyned which was found for the Plaintiff It was moved in arrest of Iudgment that here was not any issue for the Plaintiff ought severally to reply to both pleas aforesaid for here are several Causes of Iustification and his Replication absque tali causa Nomen Collectivum Post 139. Dy. 182. doth not answer to both Cook This word Causa is nomen Collectivum which may be referred to every Cause by the Defendants alledged reddendo singula singulis and their Iustifications are but one matter and the Defendants might have all joyned in one plea. Wray Both pleas depend upon one matter but are several causes for two justifie by reason of their Interest and the third for the preservation of the Peace And by him and the whole Court although it be not a good form of pleading yet by reasonable construction this word Cause shall be referred to every cause and so the pleading shall be maintained And afterwards Iudgment was given against the Plaintiff CLXX Cater and Boothes Case Trin. 30. Eliz. In the Kings Bench. Intrat Hill. 30 Rot. 58. or 581. IF a Writ of Covenant the Plaintiff declared that the Defendant by his deed bearing date the first of October 28 Eliz. did covenant that he would do every act and acts at his best endeavour to prove the Will of I. S. or otherwise Covenant that he would procure Letters of Administration by which he might convey such a Term lawfully to the Plaintiff which he had not done licet saepius requisitus c. The Defendant pleaded that he came to Doctor Drury into the Court of the Arches and there offered to prove the Will of the said I. S. but because the Wife of the said I.S. would not swear that it was the Will of her Husband they could not be received to prove it Vpon which it was demurred in Law. It was moved by Williams that the Action doth not lie for there is no time limited by the Covenant when the thing should be done by the Defendant for which he hath time during his life for as much as it is a collateral thing See 15 E. 4. 31. if there be not a Request before but admit that the Covenant had been to perform upon request Request then the Plaintiff in his Declaration ought to have shewed an express request with the place and time of it for that is traversable See 33 H. 6. 47 48. 9 E. 4. 22. Gawdy If the Covenant had been eypresly to do it upon request there the request ought to be shewed specially But when a thing upon the exposition of the Law only is to be done upon Request such Request alledged generally is good enough And by Wray the Covenantor hath not time during his life to perform this Covenant but he ought to do it upon request within convenient time but in some case a man shall have time during his life as where no benefit shall be to any of the
case And at another day it was objected That the Deed could not be acknowledged without a Letter of Attorney being a Corporation which consisted upon divers persons as Prioress and Covent and they are alwaies to be intended to be in their Chapter-house and cannot come into Court to acknowledge a Deed To which it was answered by Cook That this acknowledgment being generally pleaded it shall be intended that it was done by a Lawful means and there is no doubt but that such a Corporation may levy a Fine and make a Letter of Attorney to acknowledge it and see 2 Ma. Fulmerstones case 105. It was further objcted 2 Inst 674. That this Deed was enrolled the same day that it beareth date for the pleading is per factum suum gerens Datum 2 Novemb. 29 Hen. 8. et iisdem die anno irrotulat And by the Statute such a Deed ought to be enrolled within six Months next after the date so as the day of the date is excluded and so it is not enrolled within six Months As to that it was answered by Cook That the time of computation doth begin presently after the delivery of the Deed as in the common Cases of Leases If a man makes a Lease for years to begin from the day of the date the same is exclusive but if it be To have and to hold from the date of the Deed it shall begin presently And an Ejectment supposed the same day is good and then here this Enrolment is within the six Months Dyer 220. b. 1 Cro. 717. and yet see 5 Eliz. 128. Dyer Pophams case It was also objected That it is alledged in the conusans That the Manor was sold to the Lord Audley and that the Deed of Bargain and Sale was acknowledged and enrolled in the Chancery the said Lord being then Lord Chancelor and he cannot take an acknowledgment of a Deed or enrolment of it to himself for he is the Sole Iudge in the said Court so as the Deed is acknowledged before himself and enrolled before himself and that is good enough for here we are not upon the common Law but upon the Statute and here the words of the Statute are performed And the enrolment of the Deed is not the substance of the Deed but the Deed it self Also the acknowledgment of the Deed after it is enrolled is not material for he is estopped to say that it is not acknowledged And as to the matter it self a man shall not have averment against the purport of a Record but against the operation of a Record as not put in view not comprised partes ad finem nihil haberunt c. And against Letters Pattens of the King Non concessit is a good plea which see 18 Eliz. for by such plea it is agreed that it is a Record but that nihil operatur CCLVIII. Osborn and Kirtons Case Hill. 31 Eliz. In the Kings Bench. Rot. 258. IN Debt upon an Obligation The Defendant cast a Protection Debt upon which the Plaintiff did demur Tanfield The Protection is not good for the Defendant is let to Bail and so is intended always in prison for so the Record makes mention and then the Protection quia moratur in portubus Zeland is against the Record Protection and the Court ought to give credit to Records especially Secondly The words of the Protection are That Kirton is imployed in Obsequio nostro which is no cause of protection for the usual form and so is the Law that such a person be imployed in negotio Regni for the defence of England c. For if the King will give aid unto another Princes Subjects employed in such service he shall not have Protection And afterwards variance was objected betwixt the Bill and Declaration and the Protection for the Bill is against John Kirton of A. Gentleman the Protection is John Kirton only But the same was holden no such variance being only in the Addition for before the Statute 1 H 5. additions were not necessary in any actions CCLIX Boyton and Andrews Case Mich. 30 Eliz. Rot. 156. In the Kings Bench. IN Debt upon an Obligation the Condition was Debt 1 Cro. 135. to make sufficient assurance of certain Lands to the Obligee before the tenth day of March 17 Eliz. And if it fortune the said Obligee be unwilling to receive or mislike such assurance but shall make Request to have one hundred pounds for satisfaction thereof Then if upon such Request the Obligor pay one hundred pounds within five months That then the Obligation shall be void And at the day the Obligee doth refuse the assurance and afterwards 27 Eliz. request is made to have the hundred pounds It was the clear opinion of the whole Court That the said Request was well enough for the time and he might make it at any time during his life he is not restrained to make it before the day in which the Assurance is to be made and afterwards judgment was given for the Plaintiff CCLX Knight and Savages Case Mich. 29 30 Eliz. Rot. 546. In the Kings Bench. A Writ of Error was brought upon a Iudgment given in Leicester in Debt Tanfield assigned Error Error 2 Cro. 206. 2 Cro. 109. 654. Sty 91. Yel 164. 165. Post 302. because in that Suit there was not any plaint and in all inferior Courts the plaint is as the original at the common Law and without that no process can issue forth And here upon the Record nothing is entred but that the Defendant summonitus fuit c. and therefore the first entry ought to be A. B. queritur adversus C c. Clench A Plaint ought to be entred before process issueth the summons which is entred here is not any plaint and for that cause the Iudgment was reversed It was said That after the Defendant appeared a Plaint was entred but it was said by the Court That that shall not mend the matter for there ought to be a plaint out of which the process shall issue as in the Courts above out of the original Writs CCLXI Kirby and Eccles Case Trin. 31 Eliz. In the Kings Bench. 1 Cro. 137. IN an Action upon the Case the Plaintiff declared Quod cum quaedam communicatio fuisset betwixt the Plaintiff and one Cowper That Cowper should mast certain Hogs for the Plaintiff the Defendant did promise That in consideration that the Plaintiff promised give unto the Defendant three shillings and four pence for the fatting of every Hog That the said Hogs should be redelivered to him well fatted to which promise and warranty the Plaintiff giving faith delivered to the said Cowper one hundred and fifty Hogs to be masted and that one hundred of them were delivered back but the residue were not It was moved That here is not any consideration for which the Defendant should be charged with any promise but it was argued on the other side That the Promise was the cause
of the Contract and being made at the time of the Communication and contract should charge the Defendant but if the promise were at another time it should be otherwise There was a Case lately betwixt Smith and Edmunds Two Merchants being reciprocally endebted the one to the other agreed betwixt themselves to deliver all their Bills and Bonds into the hands of one Smith who promised that he would not deliver them to the parties until all accounts were ended betwixt them and yet he did deliver them and for that an Action brought against him was adjudged maintainable yet there was not any consideration nor was it material for the action is grounded upon the Deceit and so is it here upon the Warranty And of that opinion were Clench and Wray Iustices but Gawdy was of a contrary opinion CCLXII Woodshaw and Fulmerstones Case Hill. 30. Eliz. Rot. 699 In the Kings Bench. WOodshaw Executor of Heywood brought Debt upon a Bond against Richard Fulmerstone and the Writ was dated October Mich. 29 30 Eliz. and the Condition of the Bond was That if Fulmerstone died before his Age of one and twenty years and before that he had made a Ioynture to A. his Wife Daughter of the Testator Heywood Then if the said Defendant caused one hundred pounds to be payed to the said Heywood within three months after the death of the said William that then the Bond should be void and the said William Fulmerstone died 30 September 30 Eliz. which matter he is ready c. The Plaintiff doth traverse absque hoc that the said Heywood died intestate Tanfield It appeareth of Record that the Plaintiff hath not cause of action for this one hundred pounds was to be paid within three Months after the death of William Fulmerstone 1 Cro. 271 325 565. as the Defendant hath alledged which is also confessed by the Plaintiff and this Action is entred Mich. October 30 Eliz. scil within a month after the death of William Fulmerstone and so before the Plaintiff hath cause of action and therefore he shall be barred Gawdy Where it appeareth to the Court that the Plaintiff hath not cause of Action he shall never have Iudgment as in the Case betwixt Tilly and Wordy 7 E. 4. But here it doth appear that the Plaintiff hath cause of Action for where a man is bound in an obligation the same is a duty presently Obligation and the condition is but in defeazance of it which the Defendant may plead in his discharge CCLXIII Windham and Sir Edward Cleers Case Trin. 31 Eliz. In the Kings Bench. ROger Windham brought an Action upon the Case against Sir Ed. C. declared that the said Ed. being a Iustice of Peace in the County of N. and where the Plaintiff was a loyal subject Action upon the Case of sclander 1 Cro. 130. and of good fame all his life time nor ever touched or reproched with any offence of Roâ—ery c. the Defendant malitiose invide machinams ipsum Rogerum de bonis nomine fama et vita deprivare directed his warrant to divers Baylifs and Constables of the said County to arrest the said Plaintiff And it was alledged in the said Warrant That the Plaintiff was accused before him of the stealing of the horse of A. B. by reason of which the Plaintiff was arrested and so detained until he had entred into a Bond for his appearance c. whereas in truth he was never accused thereof nor ever stole such horse and whereas the Defendant himself knew that the Plaintiff was guiltless by reason of which he was greatly discredited c. And it was found for the Plaintiff And it was moved that upon this matter an Action doth not lye for a Iustice of Peace if he suspect any person of Felony or other such Offence may direct his Warrant to arrest him 14. H. 8. 16 Gaudy and Clench If a man be accused to a Iustice of Peace for Felony for which he directs his Warrant to arrest him although the accusation be false the Iustice of Peace is excused but if the party in truth was not accused before the Iustice it is otherwise It was a Case lately betwixt the Lord Lumley and Foord where Foord in a letter written by him had written It is reported That my Lord Lumley seeketh my life If it was not Reported an Action upon the Case lieth but if reported no Action lieth So here if he was accused no Action lieth but if not an Action lieth And afterwards in the principal Case Iudgment was given for the Plaintiff CCLXIV Isleys Case Trin. 31 Eliz. In the Kings Bench. ISley and others were Plaintiffs in an Ejectione firmae and upon the general Issue it was found for the Plaintiffs and 4 days after the verdict given was moved in stay of judgment a special maâ—ter in Law whereof the Iustices were not resolved for the law but took advisement and gave day over and in the mean time one of the Plaintiffs died which matter the Defendant shewed to the Court in further stay of the Iudgment But by Coke the same is not any cause for the Postea came in Quindena Pasch which was 16 Aprilis at which day the Court ought to have given Iudgment presently but took time to be advised and the 19 of April one of the Plaintiffs died And the favour of the Court ought not to prejudice us for the Iudgment here shall have Relation to the 16 of April at which time he was alive and it was so of late adjudged in the Case of Derick James who died the day after the verdict and yet Iudgment was not stayed for the Court after verdict cannot examine surmises and they have not a day in Court to plead and in our case It was but a day of Grace and no entry is made of it Although no plea can be now pleaded after verdict yet as amicus curiae one may inform us of such matter And sometimes in such case Iudgment hath been stayed as 9 Eliz. and sometimes notwithstanding such Exception as 2 Eliz. So as I conceive the matter is much in the discretion of the Iustices And because the same was a hard verdict and much against the Evidence It is good discretion upon this matter to stay Iudgment and such was the opinion of the Court. CCLXV. Steed and Courtneys Case Trin. 31 Eliz. In the Kings Bench. Error 1 Cro. 116. Owen 93. More 691. Prescription to levy a fine not good ERror was brought upon a Fine levied upon a Plaint in a writ of Covenant in the City of Exceter And two Errors were assigned First The Plaint was quod teneat convent de duobus tenementis Whereas in truth the word Tenement doth not comprehend any certainty for in the Word Tenement is understood Messuage Land Meadow Pasture c. and whatsoever syeth in tenure And 11 H. 6. 18. by grant of Lands and Tenements Rent or Common shall pass And an Ejectione firmae
to the Plaintiff and yet is and upon these Pleas the Plaintiff did demur in Law. Owen Serjeant for the Plaintiff That both Pleas are insufficient the first Plea is not an answer but by argument for the Plaintiff declares of a commission of his own goods and the Defendant answers to a commission of his own goods 33 H. 8. Br. Action sur le case 109. In an action upon the case the Plaintiff declares that the Defendant found the goods of the Plaintiff and delivered them to persons unknown Non deliberavit modo forma is no Plea but he ought to plead not guilty and in an action upon the case the Plaintiff declared that he was possessed of certain goods ut de bonis suis proprijs and the Defendant found them and converted them to his own use It is no Plea for the Defendant to say that the Plaintiff was not possessed of the said goods as of his proper goods but he ought to plead not guilty to the mis-demeanor and give in Evidence that they were not the goods of the Plaintiff and 4 E. 6. Br. action upon the case 113. The Plaintiff declared that he was possessed of certain goods as of his proper goods and lost them and the Defendant found them and converted them to his own use the Defendant pleaded that the Plaintiff pawned the said goods to the Defendant for ten pounds for which he detained them according to the said pawn and traversed the conversion and by some it was holden that he ought to plead not guilty give the especial matter aforesaid in Evidence and 2 3. Phil. and Ma. Dyer 121. The case of the Lord Mountegle in an action upon the Case the Plaintiff declared upon a Trover of a Chain of Gold and that the Defendant had sold it to persons unknown the Defendant pleaded That ipse non vendidit modo forma upon that the Plaintiff did demur in Law. And see 27 H. 8. 13. Where goods come to one by Trover he shall not be charged in an action but for the time he hath the possession But that is to be intended in an Action of Detinue and not in an action upon the Case for such action upon the Case is not grounded upon the Trover but upon the mis-demeanor that is the Conversion And as to the other Plea it is utterly insufficient for the Plaintiff declares of a Conversion and he pleads a possession that he is always ready and so doth not answer to the point of the action Yelverton Serjeant to the contrary and he conceived for the first Plea that it is a direct answer for he hath justified his sale to persons unknown for that he hath bought the goods of one Copland whose goods they were and because the Plaintiff hath demurred upon the Plea he hath confessed the truth of the matter contained in it scil that the property of the goods was to Copland and so in Defendant by the said sale and then he hath good cause to convert them to his own use by sale or otherwise And he conceived that there is a difference 27 H. 8. 13. betwixt Baylment and Trover for in case of Trover the parry is not chargeable but in respect of the possession which being removed the action is gone against the Finder for he who findeth goods is not bound to keep them nor to give an account for them And he put the case reported by Dyer 13 14 Eliz. 306 307. R. Fines brought an action upon the case and declared he was possessed of a Hawk as of his proper goods at W. and casually lost it at B. and that it afterwards casually came to the hands of the Defendant by Trover and that he knowing it to be the Plaintiffs Hawk sold the same for mony to persons unknown The Defendant pleaded that the Hawk first after the losing of it came to the hands of one Jeoffryes who sold it to one Rowly who gave it to the Defendant at A. who sold it to Poulton and the same was found a sufficient Bar and it is hard where goods as Oxen or Horses come to another by Trover that he should be charged to keep them and pasture them until the Owner claimeth them and therefore it is not reason but that he discharge himself by the quitting of the possession of them And as to the other Plea the matter of the Plea is good enough and the defect is but in the form which because the Plaintiff upon his Demurrer hath not shewed to the Court according to the Statute he shall not take advantage of it but the matter of the Plea is sufficient scil the finding and the offer to deliver it to the Plaintiff Anderson Iustice For the examination of the insufficiency of this Plea the nature of the action and the cause of it is to be considered the nature of the action it is an action upon the case the cause the Trover and conversion Then for the latter Plea his readiness to deliver it It cannot be any answer to the Declaration of the Plaintiff For this action is not Debt or Detinue where the thing it self is to be delivered for in such case the Plea had been good but the Conversion is the special cause of this Action which by this is not answered and for the other Plea the Declaration is not answered by it But here is some matter of justification for when a man comes to goods by Trover there is not any doubt but by the Law he hath liberty to take the possession of them but he cannot abuse them kill them or convert them to his own use or make any profit of them and if he do it is great reason that he be answerable for the same but if he lose such goods afterwards or they be taken from him then he shall not be charged for he is not bound to keep them and so he conceived Iudgment ought to be for the Plaintiff Windham Iustice neither Plea is good as to the first Plea he confesseth the conversion but hath not conveyed unto himself a sufficient title to the goods by which he might justifie the Conversion for the Plaintiff declares of a conversion of his own goods and the Defendant justifies because the property of the goods was in a stranger who sold them to him which cannot be any good title for him without a Traverse unless he had shewed that he bought them in an open Market and then upon such matter he might well have justified the Conversion And as to the other Plea the same is naught also for the goods are not in demand and their the said Plea is not proper to say that he is ready to deliver them for damages only for the conversion are in demand and not the goods themselves and therefore the same is a Plea but by Argument scil He is ready to deliver Ergo he hath not converted and yet the same is not a good argument for if a man find my Horse
of her Dower of all his Lands and dyed and the said A. took to Husband the Defendant And that after betwixt the Plaintiff and Defendant colloquium quoddam habebatur c. upon which conference and communication the Defendant in consideration that the Plaintiff promised to pay to him the said one hundred pounds promised to make to him a discharge of the said one hundred pounds and also of the Dower of his Wife and shewed further that notwithstanding that the said Pett was ready and offered the said one hundred pounds and Dower also yet c. Vpon which there was a Demurrer in Law It was moved by Tan. that here is not any cause to have a prohibition for the agreement upon the communication is not any cause for it doth not appear that it was performed Coke A Prohibition lieth for the Wife cannot have both money and Dower for that was not the meaning of the Devisor and therefore it hath been holden that if a man deviseth a Term for years to his Wife in satisfaction and recompence of her Dower if she recovereth Dower she hath lost her Term Also here is modus and conventio which alters the Law scil mutual agreement So if the Parson and one of the Parishioners agree betwixt them that for forty shillings per annum he shall retain his Tithes for three years c. as it was in the Case betwixt Green and Pendleton c. it is good CCCXIX. Martingdall and Andrews Case Mich. 32 33. Eliz. In Banco Regis Action upon the case for Wast IN an Action upon the Case the Plaintiff declared that one Mildmay was seised of a House in A. and that he and all those whose estate c. time out of mind c. have had a way over certain Lands of the Defendants called C. pro quibusdam averiis suis and shewed that the said Mildmay enfeoffed him of the said House and that the Defendant stopt the said way to his damage c. And it was found for the Plaintiff and it was moved in Arrest of Iudgment that the title to the way is not certainly set forth i.e. pro quibusdam averiis suis quod omnes Justiciarii concesserunt But Gawdy Iustice conceived that the same was no cause to stay Iudgment For it appeareth to us that the Plaintiff hath cause of Action although that the matter be incertainly alleadged and of this incertainty the Defendant hath lost the advantage having surceased his time by pleading to it as 20 E. 3. Trespass for taking and carrying away of Charters the Defendant pleaded Not guilty and it was found for the Plaintiff to the damage c. And Error was brought because the Plaintiff had not set down in his Declaration the certainty of the Lands comprized in the Charters But non allocatur for the Defendant ought to have challenged that before and also 47 E. 3. 3. In a Writ of Covenant the Plaintiff declared of a Covenant by which the Defendant covenanted with the Plaintiff to assure to him all his Lands and Tenements which he had in the Counties of Gloucester and Lincoln and declared that at a certain day he required the Defendant to make him assurance of all the Lands c. And the Writ of Covenant was general quod teneat conventionem de omnibus terris quas habeat in c. And it was objected as here that the Writ wanted certainty as how many Acres or such a Mannor but non allocatur for here the Plaintiff is not to recover Land but only Damages and the Writ was awarded good Fenner Iustice the Cases are not like to the Case at Bar for in the said Cases the certainty is not needful but for the taxing of the Damages but here the certainty of the number of the Cattel is part of the title CCCXX Beale and Taylors Case Mich. 32 33 Eliz. In the Kings Bench. UPon Evidence to a Iury Leases 1 Cro. 222. it was holden by Gawdy and Clench Iustices that if a Lease for years be made and the Lessor covenants to repair during the Term if now the Lessor will not do it the Lessee himself may do it and pay himself by way of Retainer of so much out of the Rent which see 12 H. 8. 1. 14 H. 4. 316. Retainer of Rent A Lease for years by Indenture and the Lessor covenants to repair the Houses and afterwards the Lessor commands the Lessee to mend the Houses with the Rent who doth it accordingly and expends the Rent in the charges c. So 11 R. 2. Bar. 242. The Lessor covenants that the Lessee shall repair the Tenements when they are ruinous at the charge of the Lessor In debt for the Rent the Lessee pleaded that matter and that according to the Covenant he had repaired the Tenements being then ruinous with the Rent and demanded Iudgment if action Jones 242. Yelv. 43. c. and good Fenner Iustice contrary for each shall have action against the other if there be not an express Covenant to do it Quaere If the Lessor covenant to discharge the Land leased and the Lessee of all Rent-Charges issuing out of it If a Rent-charge be due if the Lessee may pay it out of his own Rent to the Lessor ad quod non fuit responsum CCCXXI. Offley and Saltingston and Paynes Case Mich. 32 33 Eliz. In the Kings Bench. OFfley and Saltingston late Sheriffs of London Escape 1 Cro. 237. brought an Action upon the Case against Payne because that he being in Execution under their custody for fifty three pounds in which he was condemned at the Suit of one Spicer made an escape the debt not satisfied by reason whereof they were compelled to pay the money The Defendant confessed all the matter but further pleaded that after the Escape Spicer had acknowledged satisfaction being after the Escape upon Record of the sum recovered upon which there was a Demurrer Owen Serjeant argued that the acknowleding of satisfaction being after the Escape was not any Plea for when the Plaintiffs Sheriffs have paid the money recovered there was no reason that Spicers acknowledging satisfaction should stop the Sheriffs of their Remedy against Payne It was holden by the Iustices that the Plaintiffs in this Action ought to shew that they had been impleaded by him who recovered for they cannot have this Action before they are sued For perhaps the Plaintiffs who recovered must be contented to hold themselves to the Defendant and to be satisfied by him It was said by Glanvil Serjeant that by the Escape the Debt was cast upon the Sheriffs and the Defendant discharged and that it was the Case of Sir Gervas Clyfton who being Sheriff suffered him who was in Execution and in his custody to go and see a Play and the same was adjudged an Escape and the party could not be in Execution again And then he said that this acknowledgment of satisfaction could not be any Bar to the
Plaintiffâ— and Iudgment given accordingly Amercement It was argued on the part of the Plaintiff in the first Action that the same is a thing amendable As 9 E. 4. 14. A Iury was impannelled by the name of I.B. and in the Habeas Corpora he was named W.B. and by such name sworn c. And upon Examination of the Sheriff it was found that he was the same person who was impannelled and it was amended and made according to the Pannel But the opinion of the whole Court was That as this case is it was not amendable and it is not like the case of 9 E. 4. For there the Examination was before the Verdict when the Sheriff was in Court but here it is after Verdict and the Sheriff is out of Court and cannot be examined and for these causes the Iudgment was reversed CCCLXXIV Ognell and the Sheriffs of Londons Case Pasch 26. Eliz. In the Exchequer OGnell brought Debt upon an Escape by Bill in the Exchequer against the Sheriffs of London Escape 1 Cro. 164. the Case was That one Crofts was bound to the now Plaintiff in a Recognisance and afterwards committed for Felony to the Prison of Newgate of which he was attainted and remained in Prison in the custody of the Sheriffs Afterwards Ognell sued a Sc. fac upon the said Recognisance against Crofts the Sheriffs returned a Cepi and the especial matter aforesaid and after Iudgment given against Crofts for Ognell Crofts got his pardon and escaped It was argued That notwithstanding this Attainder Crofts is subject to the Execution obtained upon the Recognizance See the case of Escape betwixt Maunser and Annesley 16 Eliz. in Bendloes case 2 E. 4. 1. It is said by Watman That a man out-lawed for Felony shall answer but shall not be answered See 6 E. 4. 4. One condemned in Redisseisin was taken by a Capias pro fine and committed to Prison and afterwards out-lawed of Felony the King pardons the Felony yet he shall remain in Execution for the party if he will But if the party be once in Execution for the party and then out-lawed of Felony it seems by 6 E. 4. Fitz. Execution 13. that the Execution is gone And all the Barons were clear of opinion in the principal case for the Plaintiff And they also said That if one who hath a Protection from the King be taken in Execution and Escape the Gaoler shall answer for the Escape and that was one Hales Case And afterwards Iudgment was given for the Plaintiff Hales Case and one of the causes of the Iudgment was because that the Sheriffs had returned Câ—pi upon the Process CCCLXXV Bishop and Redmans Case Hill. 26 Eliz. In the Kings Bench. BIshop a Doctor of the Civil Law brought an Action of Covenant against Redman Archdeacon of Canterbury and declared upon an Indenture by which the Defendant did constitute the Plaintiff Officiâ—â—em suum of his Archdeaconcy for three years and gave to him by the said Indenture Authoritatem admittendi inducendi quoscunque Clericos ad quaecunque beneficia Ecclesiastica infra Archidiaconatum praedict ' and also Probate of Wills and further granted to him omnem omnimâ—dam Archidiaconatum Jurisdictionem suam praedict ' absque impetitione deâ—â—egatione restâ—ictione c. after which Doctor Young was created Bishop of Rochester which is in the Iurisdiction of the said Archdeaconry and the Defendant took upon him to enthronize the said Bishop in his said Church and took of him for his Fee twenty Nobles whereupon the Plaintiff brought this Action It was moved for the Defendant that upon the matter the Action doth lye for the Office of enthronizing or enstalling of a Bishop doth not pass by the said Indenture nor is there any word in the Indenture that doth extend unto it for the Bishop is not a Clark and the Plaintiff by the Indenture hath not to do but with Clarks not with Bishops and it appeareth by the Grant of Subsidies by the Clergy in Parliament that a Bishop and a Clark are distinct things See Instrumentum hereof Praelatus Clericus c. Also the Plaintiff hath not to do with a Bishoprick but with Benefices and a Bishoprick is not a Benefice but a higher thing And further the Plaintiff hath power to admit and induct which doth not extend to installing or inthronization for that belongs to a Bishop and the Court was clear of opinion That by this Grant there did not pass any power to instal or inthronize Bishops and the general words i.e. omnem omnimodam jurisdictionem Archidiaconatum praedictam Words which amount to Covenant did not mend the matter for the word Praedictam doth not restrain the words Omnem omnimodam c. but admitting that It was moved If upon this Indenture Covenant lieth for there is not any express Covenant yet the words absque impetitione denegatione restrictione do amount to so much to make the Defendant subject to his Action if the matter in it self would have served for him and so was the opinion of the Court. CCCLXXVI Lady Lodges Case Hill. 26 Eliz. In the Kings Bench. THe Lady Laxton of London by her Will bequeathed to Matthew Luddington and Andrew Luddington Prohibition Poph. 11. Dyer 59. several Legacies in monies to be paid to them respectively at their several ages c. and made the Lady Lodge her Daughter her Executrix and died Andrew died before his full age Matthew took Letters of Administration of the goods of Andrew and sued the Lady Lodge in the Spiritual Court for the Legacy bequeathed to Andrew before which Suit begins the Lady Lodge with Sir Thomas her Husband gave all the goods which she had as Executor of the said Lady Laxton to Sir William Cordel Master of the Rolls and to William Lodge Son of the said Sir Thomas and his Lady depending which Suit the Lady Lodge died after which sentence was given against her being dead and now a Citation was out of the Spiritual Court against William Lodge Executor of the said Lady Lodge to shew cause why the sentence given against the said Lady Lodge should not be put in Execution against him and sentence was given against the said William Lodge who appealed to the Delegates and there the sentence was affirmed And now came William Lodge into the Kings Bench and set forth the grant of the said Lady Lodge as aforesaid and that the same was not examinable in the Spiritual Court and thereupon prayed a Prohibition And Awbrey Doctor of the Civil Law came into Court to inform the Iustices what their Law was in certain points touching the Case in question and as to the sentence given against the Lady Lodge after her death he said That if the Defendant died before issue joyned which is called Litis contestationem the Suit shall cease but if he dieth after Litis contestationem it is otherwise for in such Case the Suit shall proceed for after
his Parishioner all demands in his Lands his Tithes thereby are not extinct and afterwards a Consultation was granted CCCCXII Lee and Curetons Case Trin. 31 Eliz. Rot. 902. In the Kings Bench. Debt 1 Cro. 153. IN Debt upon an Obligation the Defendant pleaded Non est factum and it was found for the Plaintiff and Iudgment given and afterwards the Defendant brought Error and assigned for Error that the Declaration was per scriptum suum obligat Error without saying hic in Guria prolat to which it was answered by Coke that the same was but matter of form for which a Iudgment ought not to be reversed for that the Clark ought to put in without instruction of the party and so it was holden in a case betwixt Barras and King 1 Cro. 768. 778. 3 Cro. 22. M. 29 30 Eliz. Another Error was assigned because the Iudgment is entred de fine nihil quia perdonat where it should be quod capiatur although the Plea were pleaded after the General pardon and for that cause the Iudgment was reversed for if the pardon be not specially pleaded the Court cannot take notice of it as it was holden in Serjeant Harris Case CCCCXIII Lacy and Fishers Case Trin. 31 Eliz. In the Kings Bench. IN a Replevin the taking is supposed in S. which Land is holden of the Manor of Esthall the Defendant made Conusans as Bailiff of the Lord of the Manor aforesaid and issue was taken upon the Tenure Trial. and it was tryed by a Iury out of the Visne of Esthall only Tanfield The trial is good for the issue ought not to have been tried by both Visnes S. and Esthall for two things are in issue If it be holden or not 2. If it be holden of the Manor of Esthall for which cause the Visne ought to be from both places and the opinion of the Court was That for the manner of it it was not good as if an issue be joyned upon common for cause of vicinage it shall be tried by both Towns See 39 H. 6. 31. by Littleton and Danby and the case in 21 E. 3. 12. was cited in a per quae servitia the Mannor was in one county and the Lands holden in another county the Tenant pleaded that he did not hold of the Conusor and that he was tried by a Iury of the County where the Land was See 2 H. 4. Gawdy denied the Book cited of 21 E. 3. to be Law and the reason wherefore the Visne shall come from both places is because it is most likely that both the Visnes may better know the truth of the matter than the one only Another Exception was taken Exposition of Stat. 21. H. 8. cap. 19. because the Conusans as it seems is made according to the Statute of 21 H. 8. 19. and yet the party doth not pursue the said Statute through the whole Conusans for by the Statute in Avowry or Conusans the party needs not to name any person certain to be Tenant to the Land c. nor to make Avowty or Conusans upon any person certain and now in this Conusans he hath not made Conusance upon any person certain but yet he hath named a person certain to be Tenant c. and in as much as this Conusans is not made either according to the Common-Law or according to the Statute it cannot be good But that Exception was dissallowed by the Court for if the Statute remedieth two things it remedieth one and the Conusance made in form as above was well enough by the opinion of the whole Court. CCCCXIV Diersly and Nevels Case Trin. 31 Eliz. In the Kings Bench. IN an Action of Trespass the Defendant pleaded Not-guilty 2 Roll. 682. and if he might give in evidence That at the time of the Trespass the Freehold was to such an one and he as his servant and by his Commandment entred was the question and it was said by Coke That the same might so be well enough and so it was adjudged in Trivilians Case for if he by whose commandment he entreth hath Right at the same instant that the Defendant entreth the Right is in the other by reason whereof he is not guilty as to the Defendant and Iudgment was given accordingly CCCCXV. Savage and Knights Case Mich. 29 and 30 Eliz. Rot. 546. In the Kings Bench. Error Ante 185. 1 Cro. 106. 2 Cro. 109. 654. Sty 91. Yelv. 164. Sty 115. A Writ of Error was brought upon a Iudgment given in Leicester in Debt Tanfield assigned for Error because in that suit there was not any Plaint for in all inferior Courts the Plaint is as the Original at the Common Law and without that no Process can issue and here upon this Record nothing is entred but only that the Defendant summonitus fuit c. and the first Entrie ought to be A. B. queritur versus C c. Clench Iustice a Plaint ought to be entred before Process issueth forth and this Summons which is entred here is not any Plaint and for that Cause the Iudgment was reversed CCCCXVI Rawlins Case Trin. 31. Eliz. In the Kings Bench. IN Trespass for breaking his Close by Rawlins with a continuando It was moved by Coke that the Plaintiff needed not to shew a Regress to have Damages for the continuance of the first Entry scil for the mean profits and that appears by common experience at this day Gawdy Iustice whatsoever the experience be I well know that our books are contrary and that without an Entry he shall not have damages for the continuance if not in case where the Term or estate of the Plaintiff in the Land be determined and to such opinion of Gawdy the whole Court did incline but they did not resolve the point because a Regress was proved See 20 H. 6. 15. 38 H. 6. 27. CCCCXVII Harris and Bakers Case Trin. 31. Eliz. In the Kings Bench. Accompt Damages 3 Len. 192. Collet and Andrews Case 2 Len. 118. 3 Len 149. IN an accompt damages were given by the Iury and it was moved that damages ought not to have been given by way of damages but the damages of the Plaintiff shall be considered by way of Arrearages but see the Case H. 29 Eliz. in the Common Pleas betwixt Collet and Andrews and see 10 H. 6 18. In Accompt the Plaintiff shall count to his damage but shall not recover damages vide 2. H. 7. 13. 21 H. 6. 26. The Plaintiff shall not recover damages expresly but the Court shall adâ— quoddam incromentum to the Arrearages Coke It hath been adjudged that the Plaintiff shall recover damages ratione implicationis non Retentionis CCCCXVIII Mich. 26. Eliz. In the Kings Bench. THe words of the Statute 32 H. 8. cap. 37. of Rents are that the Executor of a Grantee of a Rent-charge may distrain for the arrearages of the said Rent incurred in the life of the Testator so long as the Land charged doth continue in
the other side there the Descent is traversable and not the dying seised and that was the Case betwixt Vernon and Gray Vernon and Grays Case In an Avowry Vernon conveyed the Lands from the Lord Powes to him as next Heir to him because the Lord Powes died seised in his Demesn as of Fee without issue and the Plaintiff conveyed from the said Lord Powes by Devise and traversed the Descent to the Avowant for the dying seised was confessed and avoided by the Devise 22 Eliz. Dyer 366. See 21 H. 7. 31. In Trespass the Defendant saith That T. was seised and died seised and that the Lands descended to him as Son and Heir and that he entred the Plaintiff said That T. was seised and took to wife K. and they had issue the Plaintiff and died seised and the Land descended to him and teaversed the descent to the Defendant and see Sir William Merings Case 14 H. 8. 22 23. But if the parties do not claim by one and the same person or the dying seised be not confessed and avoided there the dying seised shall be traversed and not the descent Glanvil Serjeant Be the Bar insufficient or not if the Declaration be not sufficient the Plaintiff shall not have Iudgment and here is not any breach of Covenant viz. that the Plaintiff shall enjoy it without any lawful impediment of the Defendant his Heirs or Assigns or any claiming by Marland and then if the Heir of Marland cannot make any lawful claim then there is not any breach of Covenant assigned and he said because it is not shewed that the Land is not holden in Socage the Devise is not good for it may be that the Land is holden in Capite but admit the Devise good that when Andrews bargains and sells unto Marland and the Tenant never attorns then nothing passeth and then the Heir of Marland cannot make any lawful claim or lawful impediment Periam Iustice Here Marland was assignee of Andrews and if he or his heirs make claim although that the assignment be not sufficient in Law yet because he hath colour by this assignment his claim is lawful and so there is a breach of the Covenant and although it is not alledged that the Land devised is holden in Socage yet the Devise is good for two parts of the Land. Anderson Iustice If it be good but for two parts then is the Reversion apportioned and the Rent destroyed and so Marland hath not any Rent by his purchase of the Reversion and so he can't lawfully disturb the Plaintiff The Law doth create his apportionment which grows by the Devise and therefore the Rent shall not be destroyed but if it had been done by the Act of the party it had been otherwise and I would willingly hear if the Heir of Marland be assignee of Andrews for otherwise he is not within the words of the Covenant for Marland hath an estate to him and his heirs for the life of another Now after the death of Marland his heir is a special occupant and vide H. 26 Eliz. Rot. 560. in the Common Pleas such an Heir shall not have his age CCCCXXX Oglethorpe and Hides Case Pasch 33 liz In the Common Pleas. IN Debt upon a Bond for the performance of Covenants Debt it was holden by the whole Court That if the Defendant pleaded generally the performance of the Covenants and the Plaintiff doth demur generally upon it without shewing cause of Demurrer Iudgment shall be given according to the truth of the cause for that default in pleading is but matter of form and is aided by the Statute of 27 Eliz. But if any of the Covenants be in the disjunctive so as it is in the Election of the Covenantor to do the one or the other then it ought to be specially pleaded and the performance of it for otherwise the Court cannot know what part hath been performed CCCCXXXI Tracy and Ivies Case Mich. 32 Eliz. In the Common Pleas. IN Dower by Margaret Tracy against Ivie the Case was Dower That John Finch was seised and enfeoffed Shipton and others of two parts of the Lands to the use of himself and the Defendant his then wife and their heirs for ever with Condition That if his said wife did survive him Co. 4. Vernons Case she should pay such sums of mony not exceeding two hundred pounds to such persons which the Feoffor by his last Will should appoint and afterwards he declared his Will and thereby appointed certain sums of mony to be paid to divers persons amounting in the whole to the sum of one hundred and fifty one pounds and by his said Will devised the residue of his Lands to divers of his Kindred having no issue and died The wife married Tracy and they brought Dower against the Devisees who pleaded the Feoffment aforesaid and averred the same was made for the Ioynture of the Demandant And because that no other matter or circumstance was proved to verifie the Averment the Court incited the Iury to find for the Demandant which they did accordingly CCCCXXXII Bond and Richardsons Case Mich. 32 Eliz. In the Common Pleas. IN Debt upon a Bond Debt 1 Cro. 142. the Condition was to pay a lesser sum such a day and at such a place the Defendant pleaded payment according to the Condition upon which they were at issue And it was found by Verdict That the lesser sum was paid such a day before the day contained in the Condition of the Bond and then received and upon this Verdict Iudgment was given for the Plaintiff for the day is not material nor the place but the payment is the substance CCCCXXXIII Marshes Case Trin. 32 Eliz. In the Common Pleas. Trover had Conversion GOods came to a Feme covert by Trover and she and her Husband did convert them to their own use It was holden per Curiam That the Action upon the Case shall be brought against the Husband and Wife and not against the Husband only for the Action doth sound in Trespass and it is not like unto Detinue for upon a Detainer by the Wife the Action lieth against the Husband only CCCCXXXIV Corbets Case Trin. 32 Eliz. In the Common Pleas. Debt 2 Len. 60. AN Action of Debt was brought by Original Writ against an Administrator in another County than where the Administrator was commorant and before notice of the Suit he paid divers Debts of the Intestate due by specialty and so he had not Assets to pay the Debt in demand having Assets at the day of the Teste of the Original And now Plainment Administred 1 Cro. 793. the Defendant appearing pleaded this special matter and concluded so he had nothing remaining in his hands And it was holden per Curiam to be a good Plea. See 2 H. 4. 21 22. CCCCXXXV Gillam and Lovelaces Case Mich. 32 Eliz. In the Common Pleas. Administration KAtharine Gillam Administratrix of John Gillam brought Ejectione