Copyholder in Fee who by the Custome might surrender in Fee might make a surrender in taile without any speciall custome so to doe and he who may prescribe to make a Feoffment in Fee might make a Lease for life and it should be good quia omne majus continet in se minus Pasch 26 Eliz. In Communi Banco 27 IN a Writ of Dower the Defendant made her demand de tertia parte liberae faldae and Serjeant Gaudy moved if it were good without setting in certain for what cattell And it was held not good for if it be not of a certain number she shall not be thereof endowed no more then of a Common uncertain And if she do demand Common which is certain yet she shall not be endowed if she do not shew the certaintie of it Windham said That if the Common be uncertain that the woman shall be allowed for it But Meade said He doth not know how the allowance shall be made Pasch 25 Eliz. In the Exchequer Chamber 28 IT was holden in the Exchequer Chamber before the Treasurer and the Barons in the case of one Pelham That whereas the Queen had granted to him by Letters Patents That he should not be Bailiff Constable nor other Officer or Minister licet eligatur That if the Queen make him Sheriff of a County that he shall not be discharged by that Patent for that such Offices do not extend to Royal Offices as a grant of Amerciaments shall not extend to Amerciaments Royal. And also the making of a Sheriff is not by election but onely by denomination of the Queen So that if he have not these words besides licet eligatur per Nos he shall be Sheriff And that they said was also the opinion of Bromley Lord Chancellour Mich. 26 Eliz. In the King 's Bench. 29 IT was holden by the Court That if a man binde himself to perform the last Will of I. S. and he is made Executor that hee is bounden to pay Legacies without any demands Vide 11. E. 4. 10. a. 14. E. 4. 4. a. 20. E. 4. 28. Yet it was said That Pasch 25. Eliz. they put a difference where a man is bound to perform the last Will and when to perform the Legacies for in the later case the Law is ut suprà Hill 26 Eliz. In the Common Pleas. 30. IF I be bound that my Lessee shall take reap and carry his Corn peaceably without interruption and afterward in Harvest when he is reaping I come upon the land and say to him that he shall not reap any corn there but otherwise I do not disturb him The opinion of all the Justices was that for these words spoken by me upon the Land that I have forfeited my Bond. And yet it was urged by Serjeant Puckering That I was bound to suffer him to do three things scil to take to reap and to carry and all these things he hath done See the Case 47. E. 3. 22. where the saying to a Tenant by one Coparcener that he ought not to pay any thing to the other was a Disseisin Pasch 26. Eliz. in the Common Pleas. 31 A Man was bound in a Recognizance for his good behaviour and it was shewed that he was arrested for suspicion of Felony by a Constable and that he escaped from him to which he pleaded Not guilty Exception was taken because it was not shewed that a Felony was committed which might cause suspicion for that is traversable and per Curiam it need not for although no such felony was committed and although the arrest were tortious yet the Recognizor had forfeited his Recognizance by making an escape which is a Misbehaviour Pasch 26 Eliz. In the Common Pleas. 32 BUSHEY's Case PAul Bushey Vicar of Pancras leased his Vicarage to Doctor Clark the Glebe land and the Church and all things to the same belonging Excepting the housing reserving twenty pound rent yeerly at Lammas and Sancti Petri advincula by equall portions and if the Rent be behinde by the space of a month that then it should be lawfull for the Vicar to distrein And the Lessee was bound to peform all Covenants Articles and Agreements contained or recited within the same Indenture And 〈◊〉 rent not paid the 29 of August 25. Eliz the Vicar brought Debt upon the Bond To which the Defendant pleaded That the Rent was not demanded the 29 day of August upon which they were at issue and the Jury being ready at the Bar Walmesley said That the Enquest ought not to be taken for three causes First He hath made a lease of the Vicarage except the housing and the Plaintiff hath alledged the demand to be generall super terras glebales and hath not shewed where To that the Justices said It had been better to have said At such a gate or hedg or high-way but notwithstanding they did not allow of that Exception for if it were not well demanded it ought to be shewed of the other side The second exception was because the Enquest were all de Vicincto de Pancras and it might be that some of the Lands appertaining to the Vicarage did extend to Islington but that Exception was disallowed also The third Exception was because that the Vâ—nire facias did not well recite the Issue for the exception of the housing was left out and per Curiam it is not needfull that all be recited But if another issue then that upon which they were at issue had been recited it had not been good And afterwards the Enquest was taken and found for the Plaintiff But nothing was spoken whether there needed any demand in such case or not Pasch 26 Eliz. In the Common Pleas. 33 IF a man be presented unto a Benefice which is not above the value of six pound per annum and afterwards he is presented unto another of twenty pounds and afterwards is deprived for cause of Plurality The Ordinary must give notice to the Patron for that is at the common Law and untill Deprivation it is no Cession Trinity 26 Elizab. In the Common Pleas. 34 THROGMORTON and TERRINGHAM's Case IN a Replevin the Defendant did avow the taking of the cattell by reason that one A. held of him an Acre of land in the place where c. by fealty and sixteen shillings rent the rent payable at two Feasts of the year c. And the Plaintiffe said that he held the same acre and two others of the Avowant by fealty and sixteen shillings payable at one day absque hoc that he held the said 〈◊〉 by the services payable at two dayes c. Snagg The tenure cannot be traversed and 21 E. 4 the last case is the same case where the Avowry is made for 12 pence at four days and the Plaintiff said that he held by twelve pence payable at one day without that that he held by the Services payable at four dayes And there it is holden that the same cannot be an Encroachment because they
intend to entermarry with Alice S. by Indenture did covenant with J. D that he would marry the said Alice being then of the age of seventeen years and that after the marriage had betwixt them that they would levy a Fine of divers Lands which said Fine should bee unto the use of the said J. D. and his Heirs and accordingly after the entermarriage the said J. S. and Alice his Wife did levy a Fine unto the said J. D. and his Heirs without any other use implied or expressed but what was contained in the said Indenture before marriage and according to the said Fine the Conusee continued the possession of the said Lands for a long time viz. for thirty years Cook Chiefe Justice said That this continuance of possession was a strong proofe and could not otherwise be intended but that the Conusee came to the possession of the said Lands by the said Fine which was so levied to him and his heirs And he said That it was adjudged in this Court in the Case betwixt Claypoole and Whestone That in a Recovery the Covenant did not lead the use of the Recovery for that it was but an evidence that such was the intent of the parties And in this Case it was agreed by the whole Court and was so said to be resolved in Clogat and Blythes case 30. Eliz. That when no use is expressed or implyed by Indenture or other agreement that it shall be to the ancient use viz. to the use of the Conusor As if Husband and wife be seised of one moytie of the Land in the right of the wife and the Husband of the other moytie by himselfe and they joyne in a Fine generally the Conusee shall be seised to the former uses as it is agreed in Beckwiths case C. 2. part And so it was agreed That if the Husband doth declare the use and the wife doth not disagree or vary from it that the declaration of the Husband shall bind the wife And Cook said That it is not alwayes necessary that the wives name be set to the Indenture which doth declare an use And further Cook said That if a Fine be levied of Lands yet the uses may be declared by subsequent Indentures And it was said Obiter in this Case That if a man for valuable consideration doth purchase a Lease for years and hee nameth two of his servants as joynt-purchasers with him in the Deed and afterwards the Master would sell the Lands alone and the servants do interrupt the sale or will not joyne with him that he hath no remedy to compell them to do it but by a Bill of Chancery Trinit 8. Jacobi in the Common Pleas. 254 A Vicar was endowed in the time of King Henry the 3d. of divers Tithes and afterwards he libelled for those Tithes in the spirituall Court The Defendant alledged a Mâ—dus Decimandi and prayed a Prohibition and day was given to the party to shew cause why the same should not be granted and at the day the Deed of Endowment was produced and shewed in Court By which it did appear That the Vicar was endowed of Hay viz. of the tenth part of it and so of the remnant of the Tithes for which he libelled whereupon the Court refused to award a Prohibition Quaere Causam For as I conceive a Modus Decimandi may accrue after the Endowment Trinit 9. Jacobi in the Common Pleas. 255 Sir W. DETHICK and STOKE's Case STokes libelled against Sir William Dethick in the spirituall Court for calling of him Bald Priest Rascally Priest and for striking of him and for those offences he was fined by the spirituall Court an hundred pound and imprisoned And the opinion of the whole Court was That neither the Fine nor Imprisonment were justifiable because the Statute of Articuli Cleri is Non imponant poenam pecuniariam nisi propter redemptionem c. And Cook said They might onely excommunicate and thereupon a Writ de Excommunicatâ— capiendo might be awarded and that is their onely course and then the Party may have his Cautione admittenda And the Court said That if the spirituall Court would not enlarge the party upon sufficient Caution offered them that then the Sheriffe should deliver him Trinit 8. Jacobi in the Common Pleas. 256 IT was the opinion of the whole Court That if a man have a Judgment against two men upon a joynt Bond That he cannot have severall Executions viz. a Capias ad satisfaciendum against the one and an Elegit against the other for he ought to have but unicam satisfactionem although he sue them by severall Actions And if he sue forth severall Executions an Audita Querela will lye Mich. 9. Jacobi in the Common Pleas. 257 CARLE'S Case NOte it was adjudged in this Case That if a man say of another that he hath killed a man an Action upon the case will not lie for those words for he may do it as Executioner of the Law or se defâ—ndeâ—do So if one say of another That he is a Cutpurse an Action will not lie for that a Glover doth and a man may cut his own purse and the same Term it was holden in the Kings Bench That an Action will not lie for calling one Witch Mich. 9. Jacobi in the Common Pleas. 258 IT was holden by the whole Court That a Commoner cannot generally justifie the cutting and taking away of Bushes off from the Common but by a speciall prescription he may justifie the same So he may say That the Commoners have used time out of mind to dig the Land to let out the water that he may the better take his Common with his cattell and it was agreed That if the Lord of the Waste doth surcharge the Common that the Commoner cannot drive his cattell off the Common or distraine them damage feasance as he may the cattell of a stranger But the remedy against the Lord is either an Assize or an Action upon the Case Mich. 9. Jacobi in the Common Pleas. 259 IT was agreed by the whole Court That if a man deviseth unto his daughter an hundred pound when she shall marry or to his son when he shall be of full age and they die before the time appointed that their Executors shall not have the money otherwise if the devise were to them to be paid at their full ages and they die before that time and make Executors there the Executors may recover the Legacy in the spirituall Court Hill 9. Jacobi in the Kings Bench. 260 ROYLEY and DORMER's Case TWo Boyes did contend and fight near unto their houses and the one stroke the other so as he did bleed who went and complained to his father who having a rod with him came to the other boy and beat him upon which he died And the opinion of the whole Court was That it was not murder Mich. 9. Jacobi in the King 's Bench. 261 EDWARDS and DENTON's Case UPon a special Verdict the Case was
was adjudged against the Plaintiffe as in a Valore Maritagii if the Defendant will shew that hee tendered a mariage whereas it is not needfull for him so to do yet if the same be not true and issue be taken upon it Judgement shall be given against him wherefore hee concluded for the Plaintiffe The principall Case was adjourned Trinit 10 Jacobi in the Common Pleas. 270 GOODMAN and GORE 's Case GOodman brought an Assize against Gore and others for erecting of two houses at the West end of bis Wind-Mill per quod ventus impeditur c. And it was given in Evidence That the said houses were situate about eighty feet from the said Mill and that in height it did extend above the top of the Mill and in length it was twelve yards from the Mill and notwithstanding this neernesse the Court directed the Jury to find for the Defendant And in that Evidence it appeared by a Deed procured by the Plaintiff himself That his Wife was Joint-tenant with him and therefore it was holden by the Court That the Assize brought in his own name alone was not well brought And Cook Chief Justice also said That the Count was not good by reason of these words viz. Per quod ventus impeditur for he said That these were the words of an Action upon the Case and not of an Assize But the Clarks said That such was the usuall forme ad quod non fuit responsum and in that Case it was said obiter by Cook Chief Justice That if the Husband and Wife be Joint-tenants and the Husband sowes the Land and dieth and the Wife doth survive that she shall have the embleements Trinit 10. Jacobi in the Common Pleas. 271 HARDINGHAM's Case IN an Action of Trespass Quare clausum fregit the Defendant did justifie That he did enter and distrain for an Amercement in the Sheriffs Torne which was imposed upon the Plaintiffe for enchroaching upon the Kings High-way without shewing that the same was presented before the Justices of Peace at their Sessions as the Statute of 1. E. 4. cap. 2. requireth Haughton Serjeant for stay of Judgement in this Case said That the Statute is That the Justices of Peace shall award Process against the person who is so indicted before the Sheriffe which was not done in this Case And he said That the Statute did not extend to Amercements only in Trespasses Quare vi armis but to every other Trespass for the Statute speaks of Trespasses and other things which shall be extended to all Trespasses Cook Chief Justice said That the Statute of 1. E. 4. cap. 2. did not extend to Trespasses which were not contra pacem as the encroachment in this Case is for otherwise the Lord of a Leet could not distrain for an amercement without such presentmennt before Justices of the Peace And although the Statute speaks of Felony Trespass c. the same is to be meant of other things of the same nature which is proved by the clause in the Statute viz. That they shall be imprisoned which cannot be in the principall Case at Bar. Warburton and Winch Justices agreed in opinion with Cook Chief Justice Trinit 10. Iacobi in the Common Pleas. 272 FRAUNCES and POWELL's Case IT was moved for a Prohibition to the Spirituall Court for citing the Plaintiffe out of his Diocess upon the Statute of 23. H. 8. and by the Libel it appeared That Powell the Defendant had complained against the Plaintiffe in the Court of Arches for scandalous words spoken in the Parish of Saint Sepulchers London Cook Chief Justice held That a Prohibition would lie unlesse the Bishop of London had given liberty to the Arch-Bishop of Canterbury to entermeddle with matters within London for he said that in the Statute of 23. H. 8. there is a clause of exception in case where such liberty is given by the inferior Diocesan and therefore a day was given by the Court to procure a certificate of the opinion of the Civilians whether such authority given by the Inferiour Ordinary to the Arch-Bishop were Warranted by there Law or not for the Statute of 23. H. 8. is so and then if the authority be lawfully granted no prohibition will lye And Cook said that the Statute of 23. H. 8. was made but in affirmance of the common Law as appears by the books of 8. H. 6. and 2. H. 4. For there it is said that if one be excomenge in a forrain Dioces that the same is void coram non judice and he said that the principal cause of making of the said Statute was to maintain the Jurisdiction of Inferiour Diocesses But it was holden that if the Plaintiff had defamed the Defendant within the Peculiar of the Arch-Bishop that in such case he might be punished there although that he did inhabit within any remote place out of the Peculiar of the Arch-Bishop and in this Case it was said that the Arch-Bishop had in thirteen Parishes in London Peculiar Jurisdiction It was adjorned Trinit 10. Jacobi in the Court of Wards 273 COTTONS Case SIR John Tirrel Tenant in Capite made a Lease unto Carrel for 1000. years and further covenanted with Carrel and his Heirs that upon payment of five Shillings that he and his heirs would stand seised of the same Lands unto the use of Carrel and his Heirs And in the Deed there were all the ordinary clauses of a conveyance bona fide viz. That the Lessee should enjoy the Lands discharged of all Incumbrances and that he would make further assurance c. Carrel assigned this Lease to Cotton who died in possession his Heir within age and in two Offices the Jury would not find a Tenure because it was but a Lease for years And in a que plura the matter came in question in the Court of Wards And Cook Chief Justice of the Common Pleas and Tanfeild Chief Baron of the Exchequer were called for Assistants to the Court of Wards and they were of opinion that because it was found by the Offices that Cotton died in possession that the same was sufficient to entitle the King to Wardship of the Lands But before the Judges delivered there opinions the Lessee was compelled to prove the Sealing of the Lease by witnesses which was dated 12. years before For if they have no sufficient witnesses to prove the Sealing of the Lease without all doubt there was sufficient matter found to entitle the King viz. that the party died in possession which shall be intended of an estate in Fee simple till the contrarie be proved But the two Justices moved the Attorney That he would not trouble himself with the proof of a matter in fact For they said It was confessed on all sides that there was such a Lease and that the Assignee of it died in possession of the Land and therefore they said that they were cleer of opinion that the Heir of such a Lessee who died in possession should be
in Ward For Cook Chief Justice said that all Offices which are found to deceive the Crown of such an ancient flower of the Crown as Wardship should be void as to that purpose and most beneficial for the King And he cited the Case in 36. H. 8. Where the Kings Tenant made a Feoffment and took back an estate unto himself for life the Remainder to his Grand-child for 80. years and died that in that Case the Heir was in Ward and they said that in the case at Barre the Heir had power of the Inheritance upon payment of five Shillings and if the Lease for years be found and proved by witnesses yet it carrieth with it the badges of fraud And Tanfeild Chief Baron said that if a Lease for 100. years shall be accounted Mortmain à fortiori this Lease for 1000. years shall be taken to be made by fraud and collusion And Cook said that the Lord Chancellour of England would not relieve such a Lessee in Court of Equity because the begining and ground of it is apparant fraud Note the lands did lye in Springfield in Essex Trinit 10. Jacobi in the Common Pleas. 274 MEADES Case AN Action of Debt was brought upon a Bond against Meade who pleaded that the Bond was upon condition that if he paid ten pound to him whom the Obligee should name by his last will that then c. and said that the Obligee made his Will and made Executors thereof but did not thereby name any person certain to take the ten pound Sherley Serjeant moved that the Executors should have the ten pound because they are Assignees in Law as it is holden in 27. H. 8. 2. But the whole Court was of opinion that the Executors were not named in the Will for such a purpose viz. to take the ten pound For they said It is requisite that there be an express naming who shall take the ten pound otherwise the Bond is saved and not forfeited And Cook put this Case If I be bounden to pay ten pound to the Assignee of the Obligee and his Assignee makes an Executor and dieth the Executor shall not have the ten pound But if I be bounden to pay ten pound to the Obligee or his Assignees there the Executor shall have it because it was a duty in the Obligee himself the same Law if I be bound to enfeoffe your Assignees c. Wherefore it it was adjudged for the Defendant Trinit 10. Jacobi in the Common Pleas. 275 GREENWAY and BAKER's Case IT was moved and afterwards resolved in the Case of a Prohibition prayed to the Court of Admiralty That if a Pirat taketh goods upon the Sea and selleth them that the property of them is changed no more then if a theife upon the Land steales them and selleth them And in this Case it appeared by the Libell That bona piratica fuerint infra Portam Argier super altum mare And for that cause a Prohibition was denied because Argier being a forrain Port the Court could not take notice whether there were such a place of the Sea called the Port or whether it were within the Land or not Afterwards upon the mediation of the Justices the parties agreed to try the cause in the Guild-hall in London before the Lord Chiefe Justice Cook Trinit 10. Jacobi in the Common Pleas. 276. Sir FRANCIS FORTESCUE and COAKE's Case UPon an Evidence in an Ejectione firme betwixt the Plaintiffe and Defendant The Court would not suffer Depositions of witnesses taken in the Court of Chancery or Exchequer to be given in Evidence unlesse affidavit be made that the witnesses who deposed were dead And Cook Chiefe Justice said nullo contradicente That it is a principall Challenge to a Jurour That he was an Arbitrator before in the same case because it is intended that he will incline to that partie to which he inclined before but contrary is it of a Commissioner because he is elected indifferent And it was also said in this Case That one who had been Solicitor in the Cause is not a fit person to be a Commissioner in the same Cause Trinit 10. Jacobi in the Common Pleas. 277 BArker Serjeant in Arrest of Judgement moved That the Venire facias did vary from the Roll in the Plaintiffs name for the Roll was Peter Percy and the Venire facias John Percy and the postea was according to the Roll which was his true name The Court doubted whether it might be amended or whether it should be accounted as if no Venire facias had issued because it is betwixt other parties But it was holden That in case no Venire facias issueth the same is holpen by the Statute of Jeofailes and in this case it is in effect as if no Venire facias had issued forth and so it was adjudged And Cook Chiefe Justice said that if there be no Venire facias nor habeas Corpora yet if the Sheriffe do return a Jury the same is helped by the Statute of Jeofailes Warburton Justice contrary vide C. 5. part Bishops case And Harris Serjeant vouched Trinit 7. Jacobi Rot. 787. in the Exchequer Herenden and Taylors case to be adjudged as this Case is Trinit 10. Jacobi in the Common Pleas. 278 BROWN's Case IT was holden by the whole Court in this case That if a man hath a Modus Decimandi for Hay in Black-acre and he soweth the said acre seven years together with corn that the same doth not destroy the Modus Decimandi but the same shall continue when it is again made into hay And when it is sowed with corn the Parson shall have tithe in kind and when the same is hay the Vicar shall have the tithe hay if he be endowed of hay Trinit 10. Jacobi in the Common Pleas. 279 JAMES and RATCLIFF's Case IN Debt upon a Bond to perform such an agreement The Defendant pleaded Quod nulla fuit conclusio-sive agreeamentum The Plaintiff said Quod fuit talis conclusio agreeamentum de hoc ponit se super patriam The Court held the same was no good issue because a Negative and an Affirmative Trinit 10. Jacobi in the Common Pleas. 280 WETHERELL and GREEN's Case IT was said by the Pronothories That if a Nihil dicit be entred in Trinity Term and a Writ of Enquiry of Damages issueth the same Term that there needs not any continuance but if it be in another Term it is otherwise The Court said If it were not the course of the Court they would not allow of it but they would not alter the course of the Court the words of continuance were Quia vicecomos non misit brev Trinit 10. Jacobi in the Common Pleas. 281 PARROT and KEBLE's Case A Man levied a Fine unto the use of himself for life the remainder in tail c. with power reserved to the Conusor to make Leases for eighty years in Possession or Reversion if A. B. and C. did so long live reserving the ancient rent
afterwards he granted the Reversion for eighty years reserving the ancient rent The question was Whether he had pursued his Authority because by the meaning of the Proviso a Power was That the Conusor should have the rent presently or when the Term did begin But the opinion of the Court was That he had done lesse then by the Proviso he might have done for this Grant of the Reversion doth expire with the particular estates for life But if he had made a Lease to begin after the death of the Tenants for life the same had been more then this grant of the Reversion And Cook chief Justice said That the Grantor may presently have an Action of debt against the Grantee of the Reversion for the rent But because it was not averred that any of the Cestuy que viei were alive at the time when the Grantor did distrain for the rent Judgement in the principall case was respited Trinit 10. Jacobi in the Common Pleas. 282 UPon the Statute of Bankrupts this Case was moved to the Court If a Bankrupt be endebted unto one in Twenty Pounds and to another in Ten Pounds and he hath a Debt due to him by Bond of Twenty Pounds Whether the Commissioners may assigne this Bond to the two Creditors jointly or whether they must divide it and assigne Twenty Marks to the one and Twenty Marks to the other And the Court was of opinion That it was so to be divided as the words of the Statute are viz to every Creditor a portion rate and rate like c. And then it was moved How they might sue the Bond whether they might joine in the Suit or not ad quod non fuit responsum by Cook Warburton Justice said That when part of the Bond is assigned to one and part to another that now the Act of Parliament doth operate upon it and therefore they shall sue severally for he said That by the custome of London part of a debt might be attached And therefore he conceived part might be sued for Trinit 10. Jacobi In the Common Pleas. 283 SPRAT and NICHOLSON's Case SPrat Sub-Deacon of Exeter did libel in the Spiritual Court against Nicholson Parson of A. pro annuali pensione of Thirty Pound issuing out of the Parsonage of A. and in his Libel shewed How that tam per realem compositionem quam per antiquam laudabilem consuetudinem ipse predecessores sui habuerunt habere consueverunt praedictam annualem penfionem out of his Parsonage of A. Dodderidge Serjeant moved for a Prohibition in this Case because he demands the said Pension upon Temporall grounds viz. prescription and reall composition But Cook Chief Justice and the other Justices were of opinion That in this Case no Prohibition should be granted for they said That the party had Election to sue for the same in the Spirituall Court or at the common Law because both the parties were Spirituall persons but if the Parson had been made a party to the Suit then a Prohibition should have been granted Vide Fitz. Nat. Brev. 51. b. acc And they further said That if the party sueth once at the common Law for the said Pension that if he afterwards sue in the Spirituall Court for the same that a Prohibition will lie because by the first Suit he hath determined his Election And Cook cited 22. E. 4. 24. where the Parson brought an Action of Trespass against the Vicar for taking of Under-Woods and each of them claimed the Tithes of the Under-Woods by prescription to belong unto him and in that Case because the right of the Tithes came in question and the persons were both of them Spirituall persons and capable to sue in the Spirituall Court the Temporal Court was ousted of Jurisdiction But he said That if an issue be joined whether a Chappel be Donative or Presentative the same shall be tryed by a Jury at the common Law And in this case it was said by the Justices That the Statute of 34. H. 8. doth authorize Spiritual persons to sue Lay-men for Pensions in the Spiritual Courts but yet they said That it was resolved by all the Judges in Sir Anthony Ropers case That such Spiritual persons could not sue before the High Commissioners for such Pensions for that Suits there must be for enormious Offences only And in the principall case the Prohibition was denyed Trinit 10. Jacobi in the Common Pleas. 284 Sir BAPTIST HIX and FLEETWOOD and GOT's Case FLeetwood and Gots by Deed indented did bargain and sell Weston Park being three hundred Acres of Lands unto Sir Baptist Hix at Eleven Pound for every Acre which did amount in the whole to Two thousand five hundred and thirty Pounds and in the beginning of the Indenture of Bargain and Sale it was agreed betwixt the parties That the said Park being much of it Wood-land should be measured by a Pole of eighteen foot and a halfe And further it was covenanted That Fleetwood and Gots should appoint one Measurer and Sir Baptist Hixe another who should measure the said Park and if upon the measuring it did exceed the number of Acres mentioned in the Indenture of Sale that then S. Baptist Hixe should pay to them acording to the proportion of 11l. for every Acre and if it wanted of the Acres in the deed that then Fleet ' and Gots should pay back to S. Baptist the surplusage of the mony according to the proportion of 11. l. for every Acre And upon this Indenture Sir Baptist Hixe brought an Action of Covenant against Fleetwood and Gots and assigned a Breach that upon the measuring of it it wanted of the Acres mentioned in the Deed 70 Acres And upon the Declaration the Defendants did demurre in Law and the cause of the Demurrer was because the Plaintiff did not shew by what measure it was measured And therefore Sherley Serjeant who was of Councel with the Defendants said that although it was agreed in the beginning of the Deed that the measure should be made by a Pole of 18 feet and a half Yet when they come to the covenants there it is not spoken of any measure at all and therefore he said it shall be taken to be such a measure which the Statute concerning the measuring of Lands speaks of viz. a measure of sixteen foot and a half to the Pole and he said that by such measure there did not want any of the said three hundred Acres mentioned in the Deed. Dodderidge Serjeant contrary for the Plaintiff and he layed this for a ground That if a certainty doth once appeare in a Deed afterwards in the same Deed it is spoken indefinitely the same shall be referred to the first certainty and to that purpose he vouched the case in Dyer Lands were given by a Deed to a man haeredibus masculis and afterwards in the same Indenture it appeared that it was haeredibus masculis de Corpore and therefore it was holden but an estate in
Commission which is their authority but if it had been left out in their Commission then the Writ had been good enough And he said that when a man meddles with a thing which is but surplusage which he needed not to do he must recite the same substantially otherwise his plea will be vitious C. 4 par Palmers case And when he maketh Tho. Fleming Capit. Justic ad Placita indefinitely he varieth from the truth for the stile is Tho. Fleming Capit. Justic ad Placita coram Rege tent Haughton Justice acc ' and he said that in every Writ of Error which is to remove a Record three things ought to be expressed 1. Mention is to be made before what person it was taken as the book is in 28 H. 6. 11. 2. It is to mention betwixt whom it was 9 H. 6. 4. 3. The manner of the caption is to be mentioned whether by Writ or without Writ 2 R. 3. 2 3. and this Writ faileth in the first of them therefore he concluded that the VVrit should abate Cook Chief Justice was of the same opinion and agreed that Misnosmer and variance are not to be favoured if they be not substantial and essential quae dant esse rebus and he said that the variance in this case is of such nature For in many Records yet extant and in the time of King H. 3. it is to be found that the Chief Justice of England did sit and give Judgment in the Common-Pleas and in the Exchequer and so then Capital Justic ad Placita is too general because he might sit and give Judgment in any of the said Courts The second Exception was because that the VVrit saith Assisa capta c. and doth not say per breve nor sine breve nor doth say secundum legem consuetudinem c. For in 43 Eliz. in the Case betwixt Cromwell and Andrews it was adjudged not good to say That such an Action came into the Common-Pleas out of the Country and doth not shew that it came by adjournment or by Certlorari or Mittimus To which it was answered by Damport Councellor for the Plaintiff that it is a strong intendment that the Assise was taken per breve and therefore it needed not to be expressed because it is a general and not a special Assise Crook Justice The Exception is good for it is so general that it cannot be intended which Assise it was For put case there were two Assises betwixt the same parties it cannot be known which Assise is intended And of the same opinion was Haughton Justice Dodderidge contrary and he said Notwithstanding the Exception the Record ought to be removed by the Writ For the Judges Conscience may be well satisfied which Record is to be removed And here the Record which is to be removed is so precisely shewed that no body can doubt of it which ought to be certified And there are Records removed by Writs of Error which are more dubious then this is v. 19 Eliz. Dyer 356. 20 E. 3. But in this case the Writ is much enforced by the words Sommon Capt. For in every Assise there are four Commands to the Sheriffe 1. Facere tenementum esse in pace to quiet the possession 2. Facere recognitionem or Recognit videre tentam 3. Summoneas 4. Ponas eos per vadios c. For which cause of necessity it must be meant an Assise per Breve The third Exception was because in the Writ it was not shewed who was Plaintiffe and who Defendant Dodderidge It is generally to be agreed That the Writ of Error ought to agree with the Record which Rule is taken in 3 H. 6. 26. C. 3. par the Marquess of Wincbesters Case But yet every Variance doth not abate this VVrit For if the variance be only in matter of circumstance as it is in this Case the VVrit shall not abate vid. 9 H. 6. 4. 4 5 Phil. Ma. Dyer 164. 2 Eliz. Dyer 173. 180. 28 H. 6. 11. 12. The fourth Exception was because it doth not shew the place of the Caption of this Assise but sayes generall in Com. Norfolk Haughton held that rather to be examinable in the Parliament then here The last Exception was because the VVrit is directed to Cook Chief Justice that he certifie the Record sub sigillo suo whereas it was said the Record it self was to come in Parliament and there a Transcript thereof is to be made and the Record to be remanded V. 22 E. 3. 23 Eliz. Dyer 357. 1 H. 7. 29. against the Book of Entries 302. To which it was answered That it is at the pleasure of the Parliament to have either the one or the other 22 E. 3. 3. 8 H. 5. Error 88. To which Cook agreed And note that upon this VVrit of Error a Supersedeas was fraudulently procured and a VVrit of Attachment issued forth against Bacon who procured it And the Supersedeas was disallowed because that another Supersedeas was granted in the first VVrit of Error And a man can have but one Supersedeas But the Question in this Case was Admitting that the VVrit of Error be good and not abateable If the same be a Supersedeas in it self And the Court doubted of that point For Cook Chief Justice said That he had viewed 26 or 27 VVrits of Error which were brought in Parliament where the first Judgment was disaffirmed and but one where the Judgment was affirmed and that is in 23 Eliz. Dyer 357. the Record of which cannot be found Et quod in praxi est inusitatum in jure est suspectum The Books where Error was brought in Parliament are 2 E. 3. 34 40 in the old print 22 E. 3. 3. 42 Ass pl. 22. 9 H. 5. 23. 1 H. 7. 29. 23 Eliz. Dyer 375. And it should be mischievous for delay for a Parliament is only to be summoned at the Kings pleasure Haughton Dodderidge and Crook held cleerly That this VVrit of Error was a Supersedeas in it self and that upon the Book of 8 E. 2. Error 88. 1 H. 7. 19. where it is said That the Justices did proceed to Execution after the Judgment affirmed in Parliament and therefore ex consequente sequitur not before And therefore the VVrit of Error is a Supersedeas that they cannot proceed But there is no President of it in the Register but a Scire facias fo 70. And the Court held That if a Supersedeas be once granted and determined in default of the party himself that he shall never have another Supersedeas but otherwise if it fail by not coming of the Justices Also Cook Chief Justice held That by this VVrit of Error in Parliament Sir Christopher Heydon could not have the effect of his suit because it is to reverse a Judgment coram Rege and so the Judgment given in the Common-Pleas stands firm and Sir Christopher Heydon is put to a new VVrit of Error in this Court for the Judgment
is in the wife but the cause thereof is because it was once coupled with a possession C. 7. part Nevils Case There was a question whether an Earldom might be entailed and forfeited for Treason which is a thing which he hath not in possession nor use but is inherent in the blood And there resolved that the same cannot be forfeited as to be transferred to the King but it is forfeited by way of discharge and exoneration 12 Eliz. Dyer the Bishop of Durhams Case There if it had not been for the saving the Regal Jurisdiction of the Bishop had been given to the King by the Statute of 26 H. 8. This Statute of 26 H. 8. was made for the dread of the Traitor For the times past saw how dangerous Traitors were who did not regard their lives so as their lands might discend to their issue It was then desperate for the King Prince and Subject For the time to come it was worse The Law doth not presume that a man would commit so horrid an act as Treason so it was cited by Mr. Crook who cited the case That the King cannot grant the goods and lands of one when he shall be attainted of Treason because the Law doth not presume that he will commit Treason If the Law will not presume it wherefore then were the Statutes made against it If the Land be forfeited by the Statute of 26 H. 8. much stronger is it by the Statute of 31 H. 8. But then admit there were a Remitter in the Case yet by the Office found the same is defeated Without Office the Right is in the King Com. 486. c. 5. part 52 where it is said There are two manner of Offices the one which vests the estate and possession of the Land c. in the King where he had but a Right as in the case of Attaindor the Right is in the King by the Act of Parliament and relates by the Office Com. 488. That an Office doth relate 38 E. 3. 31. The King shall have the mean profits The Office found was found in 33 Eliz. and the same is to put the King in by the force of the Attaindor which was 29 H. 8. and so the same devests the Remitter Tenant in tail levieth a Fine and disseiseth the Conusee and dyeth the issue is remitted then proclamations pass now the Fine doth devest the Remitter C. 1. part 47 Tenant in tail suffereth a common Recovery and dyeth before Execution the issue entreth and then Execution is sued the Estate tail is devested by the Execution and so here in our Case it is by the Office C. 7. part 8. Tenant in tail maketh a Lease and dyeth his wife priviment ensient without issue the Donor entreth the Lease is avoided afterwards a Son is born the Lease is revived Com. 488. Tenant in capite makes a Lease for life rendring rent and for non-payment a re-entry and dyeth the rent is behind the heir entreth for non-payment of the rent and afterwards Office is found of the dying seised and that the land is hoâ—den in capite and that the heir was within age In the case the Entry for the Condition broken was revived and the Estate for life revived 3 E. 4. 25. A Disseisor is attainted of Felony the Land is holden of the Crown the Disseisee entreth into the Land and afterwards Office is found that the Disseisor was seised the Remitter is taken out of the Disseisee which is a stronger case then our Case for there was a right of Entire and in our Case it is but a right of Action which is not so strong against the King And for these Causes he concluded That the Judgment given in the Court of Pleas ought to be reversed And so prayed Judgment for the Lord of Sheffield Plaintiffe in the Writ of Error This great Case came afterwards to be argued by all the Judges of England And upon the Argument of the Case the Court was divided in opinions as many having argued for the Defendant Ratcliffe as for the Plaintiffe But then one new Judge being made viz. Sir Henry Yelverton who was before the Kings Sollicitor his opinion and argument swayed the even ballance before and made the opinion the greater for his side which he argued for which was for the Plaintiffe the Lord Sheffield And thereupon Judgment was afterwards given That the Judgment given in the Court of Pleas should be reversed and was reversed accordingly And the Earl Lord Sheffield now Earl of Mulgrave holdeth the said Castle and Mannor of Mulgrave at this day according to the said Judgment Note I have not set here the Arguments of the Judges because they contained nothing almost but what was before in this Case said by the Councel who argued the Case at the Bar. Pasch 21 Jacobi in the Kings Bench. 418. IT was the opinion of Ley Chief Justice Chamberlain and Dodderidge Justices That a Defendants Answer in an English Court is a good Evidence to be given to a Jury against the defendant himself but it is no good Evidence against other parties If an Action be brought against two and at the Assises the Plaintiffe proceeds only against one of them in that case he against whom the Plaintiffe did surcease his suit may be allowed a Witnesse in the Cause And the Judges said That if the Defendants Answer be read to the Jury it is not binding to the Jury and it may be read to them by assent of the parties And it was further said by the Court That if the party cannot find a Witnesse then he is as it were dead unto him And his Deposition in an English Court in a Cause betwixt the same parties Plaintiffe and Defendant may be allowed to be read to the Jury so as the party make oath that he did his endeavour to find his Witnesse but that he could not see him nor hear of him Pasch 21 Iacobi in the Kings Bench. 419. THe Husband a wife seised of Lands in the right of the wife levied a Fine unto the use of themselves for their lives and afterwards to the use of the heirs of the wife Proviso that it shall and may be lawfull to and for the husband and wife at any time during their lives to make Leases for 21 years or 3 lives The wife being Covert made a Lease for 21 years And it was adjudged a good Lease against the husband although it was made when she was a Feme Covert and although it was made by her alone by reason of the Proviso Pasch 21 Jacobi in the Common-Pleas 420. NOte that Hobart Chief Justice said That it was adjudged Mich. 15 Jacobi in the Common-Pleas That in an Action of Debt brought upon a Contract the Defendant cannot wage his Law for part and confesse the Action for the other part And it was also said That so it was adjudged in Tart's Case upon a Shop-book And vide 24 H. 8. Br. Contract 35. A Contract cannot be divided
38 H. 6. 14. If the Law doth not lie for parcel then it is suspended for the whole where the debt is an entire debt And so it was adjudged in this Case Pasch 21 Jacobi in the Kings Bench. 421. NOte it was cited by Chamberlain Justice 15 Jacobi to be adjudged That where a man brought an Action upon the Case against another man for calling of him Bastard that the Action was maintainable The Defendant brought a Writ of Error and shewed for Error That the Plaintiffe did not claim any Inheritance or to be heir to any person certain But notwithstanding that Error assigned the Judgment was affirmed And he said That if one saith of J. S. that his Father is an Alien that an Action upon the Case will lie because it is a disability to the Son Quaere Trin. 21 Jacobi in the Kings Bench. 422. YOUNG and ENGLEFIELD'S Case Intratur Pasch 21 Jac. Rot. 102. YOung brought an Action of Trespass for entring his Close c. abutted upon one side with Pancras and butted on the other side with Grayes-Inne-Lane Upon Not guilty pleaded the parties were at issue Aud the Record of Nisi prius was Graves-Inne-Lane And thereupon the party was Nonsuit And now it was moved to have a Venire facias de novo And a Case was cited expresse in the point betwixt Farthing and Dupper 9 Jacobi Rot. 1349. Where in an Action upon the Case upon Assumpsit the Plea-Roll was Six weeks and the Record of Nisi prius Six moneths And the Jury being sworn the Plaintiffe was Nonsuit and a Venire facias de novo was awarded and the Nonsuit was recorded Ley Chief Justice You cannot have a new Venire facias if the Nonsuit be recorded And if the Record of Nisi prius varieth from the Record then it can be no Nonsuit because there is no Record upon which the Nonsuit can be and the Nisi prius was prosecuted without warrant Judicial Procss are of Record because they are by the Award of the Court But if the Transcript of a Record be mistaken by a Clark it issueth out by the Award of the Court and if it vary then it is no Record The president cited is direct in the point There was a Venire facias de novo But I conceive there is a difference where the Jury is sworn as it is in the President and then the Plaintiffe is Non-suit but in our Case the Plaintiffe was Nonsuit before the Jury was sworn But per Curiam the Case is the stronger to have a new trial Trin. 21 Iacobi in the Kings Bench. 423. PRITCHARD and WILLIAMS Case IN an Ejectione Firme the Jury found for the Defendant Now it was moved for the Plaintiffe That the Defendant might not have Costs because the Venire facias is mistaken And the Defendants Councel cited a President in the Case viz. Mich 18 Jacobi betwixt Done and Knot where the Defendant had Judgment for his Costs notwithstanding that the Plaintiffe mistooke his Venire facias in an Ejectione Firme where the Jury found for the Defendant Trin. 21 Iacobi in the Kings Bench. 424. WISEMAN and DENHAM'S Case Wiseman brought an Action upon the Case against Denham Parson and declared that there is a Custom within the Town and Parish of Landone of which the Defendant is the Parson That every Parishoner who keeps so many Kyne within the said Parish should give and pay to the Parson for his Tythe-Milk so many Cheeses at Michaelmas and shewed how that he kept so many Kyne viz. 20 c. within the said Parish and that he did tender apud Landone so many Cheeses at Michaelmas to Denham the Defendant being Parson who refused them and to take them away but suffered them to be and continue in the Plaintiffs house for which cause he brought the Action The Defendant did demur upon the Declaration George Crook the Action will lie for the Plaintiffe hath a damage by reason that the Parson doth not take away his Tythe-Cheese And it is like unto the Case in 13 H. 4. Action sur le Case 48. Where a man sold unto another Hay and because that the Vendee took not away his Hay an Action upon the Case did lie for it was a damage to the Plaintiffe to let it stand upon his ground for he durst not put his Cattel into his ground to feed lest they should eat the Hay and spoil it and so he should be lyable to an Action to be brought by the Vendee So if Tythe be lawfully seâ—forth and the Parson refuseth the Tythe but will sue in the Spiritual Court for the Tythe an Action upon the Case will lie à fortiori in this Case for the Cheeses may be cumbersome and troublesome to the Partie so as he cannot make the best use or benefit of his house Paul Crook contrarie and he took exception because the tender is alledged to be apud Landone and it is not shewed that it was at his house at Landone or in any place certain and he said that the Action will not lie because here is no damage to the Plaintiffe and it is like the Case when a man makes a Lease rendring Rent Cheese or Corn and the Tenant tendreth it and the Lessor refuseth it the Lessee cannot have an Action upon the Case against his Lessor but he may plead the matter in barr in an Action brought by the Lessor And the Case of 13 H. 4. before put is not to the purpose for there it was part of the Bargain to take it away by such a time And in our Case the Plaintiffe may plead the matter in barr to the Plaint ' 43 Eliz. betwixt Crispe and Jackson an Action upon the Case was brought for suing in the Ecclesiatical Court for Tythes which were due and he recovered damages Secondly Admit that the Action doth lie then it is because it is a damage unto him that they remain in his house but it doth not appear that the tender was made at his house but apud Landone which might be a mile from the house and so because it was his own fault the Action will not lie as this Case is by reason of the tender George Crook It was adjudged in a Cornish Case that an Action upon the Case lieth against a Parson which doth not take away his Tythe corn or hay because it spoyles the ground upon which it stands and because the partie cannot have the free use of his Land So in our Case he cannot have the free aâ—e of his house the cheeses cumbring his house and offending him with their smell Haughton Justice If the Action were well laid it would lie for the Cause but in this Case it is not well laid If any thing makes the Action to lie it is the damage which the Plaintiffe doth sustain by the cheeses being in his house but here it is laid to be tendred apud Landone and it is not said at his house and non constat how the
also mended the high-way And for these Incertainties the Indictment was quashed Pasch 3 Caroli in the Kings Bench. 482. SAMSON and GATEFIELD's Case ERror was brought to reverse a Judgment given in the Court of Virge in an Action upon the Case where the original Process fuit a Sommons whereas it ought to have been an Attachment Pasch 3 Caroli in the Kings Bench. 483. HERN and STUB's Case IN an Action of Detinue the Plaintiff did declare upon the Bailment of a Cloak of the value of 10l. to the Defendant to be safely kept and to be redelivered unto him upon request And shewed That he did request the Defendant to redeliver it and that yet he doth detain it to his damage c. The Defendant justified the Detainer by reason of a Forain Attachment in London And said That London is an ancient City and that there is a Custom in London c. That if any one be indebted unto another that if he will enter his suit or plaint into the Counter of the Sheriff of London that a Precept shall be awarded unto a Sergeant at Mace to summon the Defendant and if he retorn Nihilâ— viz. that he hath nothing within the City by which he may be summoned and Non est inventus And if he be solemnly called at the next Court and makes default that then if he can shew that the Defendant hath goods in the hands of one within the Liberty of the City that the said goods shall be attached And if the Defendant make default at four Court-dayes being solemnly called that then if the Plaintiff will swear his Debt and put in Bail for the goods viz. That if the Debt be disproved within one year and a day or the Judgment be reversed That he he shall have Judgment for the said goods And he shewed That he entred his plaint against the now Plaintiff in the Counter of Woodstreet for the Debt of 20l. and that a Precept was awarded to a Sergeant at Mace to summon him And because he had not any thing by which he could be summoned he shewed that the now Plaintiff had goods in his the Defendants hands which were attached in his hands And that he sware his Debt and put in bail for the goods and had Judgment thereupon Upon which Plea the Plaintiff did demur in Law Ward argued for the Plaintiff There are four Reasons of the Demurrer 1. He sets forth That J. S. did levy a plaint against the now Plaintiff for the Debt of 20l. but doth not set forth expresly that he did owe him 20l. And he ought to have set down how the Debt grew due for that is traversable by the Plaintiff and now hee cannot traverse it C. 10. part 77. The generall Count in an Action upon the Case Quod cum indebitatus fuit in such a summe Super se Assumpsit without shewing the Cause of the Debt is insufficient 5 H. 7. 1. Trespass was brought for taking of a Chain of Gold The Defendant said That the Plaintiff before the trespass supposed did License him to take the same Chain and to retain it untill he paid him 200 Marks which he ought to pay him Keble took Exception because the Defendant did not alledge for what cause the 200 Marks was due which Cause the Plaintiff might traverse to which Brian acc ' 9 E. 4. 41. Trespass for taking a Bagg with Money the Defendant said That the Plaintiff was indebted unto him in a certain Summ and delivered unto him the Bagg of Money in satisfaction Littleton The plea is not good for he ought to shew how he was indebted unto him Old Entries 155 156. there in a Forraign Attachment the certainty of the Debt was expressed and averred 2. He pleads a Custom and doth not prosecute his Case according to Custom The Custom is That if the Sergeant retorn that he hath nothing within the City whereby he may be summoned And Non est inventus And at the next Court day he be solemnly demanded and make default c. And he saith That because he had nothing by which he could bee summoned but doth not say That the Officer did return that he had not any thing whereby to be summoned nor that he was not to be found nor doth he plead or say That at the next Court day he was solemnly demanded Dyer 196. b. where this Case of Forraign Attachment was there the Custom is set forth viz. That the Debt ought to be affirmed by the Oath of the party in Curia Guildhall and this was pleaded to be in Curia Vicecomit in Computatorio Also he doth not averr That he had found pledges according to the Custom and therefore the plea is insufficient because he hath not purchased the Custom 3. He sheweth that the goods were attached in the Defendants hands but he doth not shew that it was within the Liberty of the City and it might be out of the liberty of the City and all the Presidents are infra Jurisdictionem c. And the Plea of every person shall be taken strongest against the Pleader And he ought to have shewed that it was within the Liberty of the City because it is a peculiar Jurisdiction 34 E. 3. breve 789. Debt was brought in the Common Pleas the Defendant said That the Plaintiff had a Bill for the same Debt depending in the Exchequer and demanded Judgment of the Writ non allocatur for it doth not appear by the Plea that the Plaintiff or Defendant were priviledged in the Exchequer and then by the Statute of Articuli super Chart as cap. 4. it is provided That no Common plea shall be holden in the Exchequer 4 E. 4 36. a In trespass for Imprisonment the Defendant doth justifie c. there he ought to shew that the Tower of London hath priviledges c. For where a man will take advantage of a particular Priviledge and Liberty he ought to shew that he was within the Priviledge of Liberty Miâ— 2. Car-Willis was Indicted before the Justices of Northampton for frequenting of a Bawdy-house in Northampton and the Indictment was quashed for it might be within Northampton and yet out of the Liberties and Jurisdiction of Northampton 4. He doth not shew in his Plea that his Debt was a due Debt and it was pleaded Dyer 196. that it was a due Debt vi Entries 155 156. It is not enough to swear his Debt but he must sweat his Debt to be a due Debt Stone for the Defendant 1. I agree that if the Action had been brought in that Court to recover a Debt then he ought to set forth how it became due but here he pleads to bar him and not to recover and so the Debt is not traversable 5 H. 7 1. there Brian took the Exception but two Judges are against him because he brought not Debt but another Action for the Chain 9 E. 4. 41. It is good by Moile without shewing the Debt because it is by way of excuse
39 H. 6. 9. is ruled in the point there the Attachment is in his own hands there the other pleaded there was no debt It is there ruled that the debt is not traversable for if there be no debt then he shall have restitution in London upon the pledges It was objected That he is to swear his debt to be a true debt I answer It ought to be so intended and then if he lay a Custom to swear the Debt and we say we have sworn our Debt then we have pursued the Custom 3. It was objected that it is not shewed where the goods were whether within the jurisdiction of the City 4 E. 4. 36. there the place came not in question But in our Case we lay That the Custom is that the goods must be in London Old Entries 155 156. there it is not alleadged that the goods were within the City of London at the time of the Attachment If a Precept be awarded to the Officer who retorns that he hath not any thing within the City and upon the allegation of the Plaintiff that such a one hath goods of the Defendant in his hands was the Objection I answer If we have not proceeded well yet the Process is well enough for here is a Judgment against him in London then so long as the Judgment is in force against him he cannot have the goods 21 E. 4 23. b. It is a Rule That a stranger unto a plaint shall not be received to alleadge discontinuance in the process So the Sheriff shall not excuse himself upon an Escape that there was Error in the Judgment nor a privy shall not take advantage of it Ognels Case Trim. 31 Eliz. there lies no process of Capias by the Law upon a Recognisance but Extent or Levari facias Yet there a Capias was awarded and if the party taken escape the Sheriff shall not take advantage of the Erronious process So I desire Judgment for the Defendant And he took an Exception to the Declaration In Detinue if the Declaration be general it is good sc Licet sepius requisitu c. But here he shews that he delivered the Cloak to be redelivered upon Request and he doth not shew any particular Request but sayes generally Licet sepius requisitus Ward There is a difference betwixt Detinue and Action upon the Case For in an Action upon the Case he ought to shew a particular Request 26 H. 6. If I bail goods to redeliver upon request yet I may seise them without request Dodderidge Justice The reseisure of the goods is a Request in Law a Request with a witness a Request with effect and untill Request he hath just cause to keep them Jones Justice In Debt and Detinue the very bringing of the Action and demand of the Writ is a demand and request And if he appear at the first Summons then he excuses himself otherwise he shall be subject to damages but the Request ought not to be so precisely alleadged But if a collateral thing be to be done upon Request there to say sepius requisitus is not sufficient So if I sell a horse for 10â— to be paid upon Request there the Request must be precisely laid for it is parcel of the Contract And in Action upon the Case and upon Debt you must lay a Request Dodderidge Justice The Request is no part of the Debt for the Debt is presently due but if I make the Request to be part of the Contract there it is otherwise As if I deliver goods to redeliver to me there needeth no precise Request but if it be to redeliver upon Request there the Request ought to be alleadged for there the Request is part of the Contract The Case was adjourned till the next Term. Pasch 3 Caroli in the Kings Bench. 484. MOLE and CARTER'S Case IN an Action upon the Case upon an Assumpsit it was moved in arrest of Judgment That the Plaintiff declares that he was possessed of certain Goods viz. such c. at London And that in consideration of two shillings That the Defendant at London did promise to carrie the said Goods aboard such a Ship if the Plaintiff would deliver the Goods to him And he shewed that he did deliver the Goods to him and that he had not carried them aboard He shewed that he was possessed of the Goods but did not shew when or where he delivered the said Goods to the Defendant but said only deliberavit c. And then the Law saith that they were not delivered Jones Justice The same is but matter of Inducement to the promise and ought not to be shewed so precisely Pasch 3 Caroli in the Kings Bench. 485. FRYER and DEW'S Case DEW being sued prayed his Priviledg because he is a Commoner in Exeter Colledg in Oxford and brought Letters under the Seal of the Chancellor of Oxford certifying their Priviledg and he certifies that Dew is a Commoner as appeareth by the Certificate of Doctor Prideaux Rector of the said Colledg Whereas he ought to certifie that he is a Commoner upon his own knowledg and not upon the Certificate of another But afterwards Certificate was made of his own knowledg and then it was allowed as good The Declaration came in Hill 2 Caroli The Certificate bore date in the Vacation and he prayed his Priviledg this Easter Term. After Imparlance he comes too late to pray his Priviledg The Certificate is not that at the time of the Action brought he was a Commoner in Exeter Colledg but that now he is a Commoner And the Certificate bears date after the Action brought He ought to have said that at the time of the Action brought and now he is a Commoner in Exeter Colledg The Priviledg was allowed per Curiam Trin. 21 Jacobi in the Kings Bench. 486. TANFIELD and HIRON'S Case THe Plaintiff brought an Action upon the Case against the Defendant for delivering of a scandalous Writing to the Prince and in his Declaration he set forth what place he held in the Commonwealth and that the Defendant seeking to extenuate and draw the love and favour of the King Prince and Subjects from him did complain that the Plaintiff did much oppress the Inhabitants of Michel Tue in the County of Oxford and that he did cause Meerstones to be digged up which might be a cause of great contention amongst the Inhabitants of Tue. The Plaintiffe denyed the oppression alledged against him and the Defendant did justifie and said that I. S. being seised of the Mannor of Tue did demise certain Lands parcel thereof unto I. F. for eighty years who made a Lease of the same at Will and afterwards I. S. did Enfeoff Tanfield the Plaintiff of the said Mannor to whom the Tenants did attorn Tenants And the Defendant shewed That time out of mind the Inhabitants of the Town of Tue had Common in the Waste of the said Mannor and that a great part of the said Mannor was inclosed and the Meerstones removed
parties more may try it 30. E. 3. 2. or 39. E. 3. 2. In a Writ of Right processe issued to the Sheriff to return four Knights he returns two Knights and two Esquires without making any mention that there were no more Knights in the County the same is errour yet if two Knights and two Esquires had been returned by the assent of the parties it had been good 6. E. 6. Dyer A man cannot enter for Non-payment of Rent without a demand yet by assent of the parties it may be good 22. H. 6. 59. the triall in favour of Liberty ought to be in the same County where the Action is brought and not where the Manor is But 44. E. 3. 6. by the assent of the parties it is sufficient In the Abridgement of the Book of Assizes 48. the books are cited to the contrary there it is said to be no Law where the Coroners â—ry the panell I agree that where it is not against a fundamentall point of the common Law that the consent of the parties tollit errores Dodderidg Justice Two questions are in this case 1. If this tryall be good 2. Admitting it be not good whether the assent of the parties doth make it good First it is a meer matter in the discretion of the Justices which is not tied to any strict rule in Law In the Book of the Assizes it was tried by the Coroners because it was in the discretion of the Justices And the Coroners are Ministers to the Court and ought to attend at the Assizes The Book of the Assizes is the Report of the Cases which happened at the Assizes in the Circuits of the Justices and they are not Term cases For the Exception which is taken by him who made the Abridgment of the Book of Assizes is of no moment for the Authour thereof was but a Student and no Councellor at Law In these Courts the Coroners do not attend therefore sometimes two four or six of the Panell are chosen to try those who are challenged as the Court shall think fit and if the Triers cannot agree we put them together into a room and swear one to keep them as a Jury is kept so as you see it rests much in the discretion of the Justices Court And if there were a certain rule to try it then it ought to be strictly observed 31. Ass 10. there the triall was de Circumstantibus 2. The assent of the parties doth make it good It is not a triall in point of the right of the cause but only of the indifferency of the Ministers The Array was challenged because the Sheriffe made it at the request of one of the parties and the Sheriffe hath confessed it upon his Examination The principal Array shal be first tried and if that be quashed then the Tales shall not be tried but if it be affirmed then two of the Panell shall try the Panell and two of the Tales shall try the Tales This is a triall only of indifference and not of the fundamentall point of the Cause If the Plaintiffe require the Venire facias to the Coroners because that the Sheriffe is chosen the Defendant shall be examined if he will agree to it if he will not agree but the Sheriffe returneth the Jury the Defendant in that case shall not challenge the Jury or any of the Array The four Knights in the Writ of Right shall choose the other twenty of the Grand Assize who shall be joyned with them and they shall be the Judges of the twenty when they are named by them 39. E. 3. 2. Haughton Justice The appearance by Atturney by assent of the parties is not errour although by the Law the Plaintiffe ought for to appear in proper person Chamberlain Justice would be advised because he had not seen the Books Ley chief Justice When the whole Panel as in this case comes to be challenged then it is in the discretion of the Justices to choose triers and chiefly in this case because all the Array is partiall If the Coroners be absent 〈◊〉 is good to take two Atturneys of the Court who the Court know to be honest by their honest carriage and fair practice The assent of the parties strengthens this case It is a rule That the assent of the parties cannot make that good which is against any fundamentall point of the Law therefore it is best to view the Presidents and to draw a Jurour but that we cannot do of our selves by the Law yet with the assent of parties we may do it It is a contempt and a deceit to the Court if his assent be entred upon record and notwithstanding that the Defendant will question the matter by a Writ of Error or otherwise relinquish his consent and for such contempt the Court may commit him and fine him also But if the matter be not a matter of Record but be onely by a Rule of the Court then we may award an Attachment onely against the party In this case the triall of the Panell was good and so was it afterwards adjudged by the whole Court Quod nota Pasch 3. Caroli in the King 's Bench. 496 EVERS and OWEN's Case SAmson Evers the Guardian of Compton Evers did sue Owen the Executor of the Lady Anne Evers for a Legacy before the Councell of the Marches of Wales Henden Serjeant moved for a Prohibition and said That by Law no intent of a Will ought to be averred contrary to the words of the Will C. 5. part 68. Cheyneys case And so no equity shall be taken upon a forrain intent contrary to that which is in the Will 2. He said That the party might not sue in the Marches of Wales for a Legacie for that the party ought to sue for the same in the Ecclesiasticall Court Banks contrary They may proceed there in an Ecclesiasticall Cause wherein there is cause of equity The Statute of 34. H. 8. cap. 26. giveth power unto them to proceed as they proceeded heretofore by Commission And before that Statute they proceeded there in case of a Legacy and so are divers Presidents therefore no Prohibition is to issue Samson Evers is the Kings Atturney for the Marches of Wales and his personall attendance is requisite there And this Court cannot grant a Prohibition to stay a Suit when he cannot sue in this Court for the same thing Finch Recorder contrary If you shew Presidents yet they will not bind this Court and give power unto them to hold plea of that which they ought not to hold plea of It is usuall to grant a Prohibition if the Court of Requests holds plea of a Legacy if it be not by reason of some speciall circumstance and it is usuall to dismisse Legacies out of the Chancery And no Priviledges shal be granted unto an Executor Administrator or Guardian Hyde Chief Justice Two have an Obligation as Executors and the one releaseth it is good and a good cause of equity against him who
24. Eliz. in the Kings Bench. 19. IN an Action upon the Case upon a Promise The consideration was Where I. S. had granted a Term to I. D. That afterwards upon the request of I. S. I. D. did make to W. an Estate for four years upon which W. brought his Action And after Verdict it was moved in stay of Judgement that there was no good consideration and a difference taken where the Promise was upon the Grant and where afterwards If it were before then the Condition was good but if it were afterwards it was not good And it was adjudged That the Plaintiffe Nihil capiat per billam Pasch 24. Eliz. in the Kings Bench. 20. AN Action upon the Case upon a Promise was The Consideration was That in consideration that the Plaintiffe Daret diâ—m solutionis the Defendant Super se assumpsit and because he doth not say in facto that he had given day It was adjudged that no sufficient Consideration was alledged But if the Consideration were Quod cum indebitatus c. the same had been a good Consideration without any more for that implies a Consideration in it self Pasch 24. Eliz. in the Kings Bench. 21. IT was said by Cooke That the Chancellor or any Judge of any of the Courts of Record at Westminster may bring a Record one to another without a Writ of Certiorare because one Judge is sufficiently known one to the other as 5. H. 7. 31. where a Certificate was by the Chancellor alone and to this purpose is 11. H. 4. But that other Judges of base Courts cannot do nor Justices of the Peace as 3. H. 6. where the certificate by Suitors was held void Pasch 25. Eliz. In the Common Pleas. 22. SKIPWITH'S Case IT was found upon a speciall verdict in an Action of Trespass that the place where c. was Copy-hold land And that the Custome is That quaelibet foemina viro cooperta poterit devise lands whereof she is seised in Fee according to the custome of the Manor to her Husband and surrender it in the presence of the Reeve and six other persons And that I. S. was seised of the land where c. and had issue two Daughters and died and that they married husbands and that one of them devised her part to her husband by Will in writing in the presence of the Reeve and six other persons and afterwards at another day shee surrendred to the Husband and he was admitted and she died and her Husband continued the possession And the Husband of the other Daughter brought an Action of Trespasse Rodes Serjeant The Custome is not good neither for the Surrender nor for the Will for two causes One for the uncertainty of what estate shee might make a Devise and because it is against reason that the Wife should surrender to the Husband Where the Custome shall not be good if it be uncertain he vouched 13. E. 3. Fitz. Dum fuit infra aetatem 3. The Tenant saith that the lands are in Dorset where the Custome is that an Enfant may make a Grant or Feoffment when he can number twelve pence And it was holden that because it is uncertain when he can so do the Custome is not good 19. E. 2. in a Ravishment of Ward the defendant pleaded that the custome is that when the Enfant can measure an ell of cloth or tell twelve pence as before that he should be out of Ward and it is holden no good custom for the cause aforesaid 22. H. 6. 51. a. there a man prescribed That the Lord of D. had used to have Common for him and all his Tenants And because it is not shewed what Lord whether the Lord mediate or immediate it is adjudged no good custome And as to the Surrender it is against reason that the Wife should give to the Husband for a Wife hath not any Will but the Will of her Husband For if the Husband seised in the right of his Wife make a Feoffment in Fee and the Wife being upon the land doth disagree unto it saying that shee will never depart with it during her life yet the Feoffment is good and shall binde during the life of the Husband as it is holden in 21. E. 3. And therefore it is holden in 3. E. 3. Tit. Devise Br. 43. That a Feme covert cannot devise to her Husband for that should be the Act of the Husband to convey the land to himself And in the old Natura Brevium in the Additions of Ex gravi quaerela it is holden so accordingly And the Case in 29. E. 3. differs much from this Case For there a woman seised of lands devisable took an Husband and had issue and devised the lands to the Husband for his life and died and a Writ of Waste was brought against him as Tenant by the Courtesie and it was holden that it did lie and that he is not in by the Devise for the reason there is because he was in before by the Courtesie But as I conceive that Case will disprove the Surrender for in as much as he had it in the Right of his wife he could not take it in his own Right Also he took another Exception in the principal Case because that the wife was not examined upon the Surrender but none of the Justices spake to that Exception but when the Record was viewed it appeared that it was so pleaded Further He said That the devise was void by the Statute of 34. H. 8. Cap. 5. where it is said It is enacted That Wills and Testaments made of any Lands Tenements c. by women Coverts or c. shall not be taken to be good or effectual in Law And he said That this Statute doth extend to customary Lands And as to that all the Justices did agree That it is not within the Statute And as to the Statute of Limitations Andâ—rson chief Justice said That if a Lease for years which perhaps will not indure sixty years shall be taken strong this shall Anderson moved That if the Lord Lease Copyhold land by Word Whether the Lessee might maintain an Ejectione firme and he conceived not for in an Ejectione firmâ— there ought to be a Right in Fact And although it be by conclusion it is not sufficient for that the Jury or Judge are not estopped or concluded And he conceived That if Tenant at Will make a Lease for years that it is no good lease betwixt him and the Lessor but that he may well plead that he had nothing in the land Meade contrary but they both agreed That the Book of 14. E. 4. which saith That if Tenant at Will make a lease for years that he shall be a Disseisor is not Law Anderson said That the prescription in the principal Case was not good for it is Quod quaelibet foemina viro cooperta poterit c. and it ought to be that feme Coverts possunt and by the Custome have used to devise to the
contract was determined and not in esse at the time of promise But he said it was otherwise upon a consideration of Marriage for that is alwayes a present consideration and alwayes a consideration because the party is alwayes married Windham to the same intent and compared it to the Case of 5. H. 7. If one sell an horse to another and after at another day will warâ—ant him to be good and sound of limb and member it is void warranty for it ought to have been at the same time that the horse was â—old Periâ—m Justice contrary for he said This case is not like to any of the cases which have been put because there is a great difference betwixt Contracts and this Action For in Contracts the consideration and promise and sale ought to concur because a Contract is derived of con trahere which is a drawing together so as in Contracts every thing requisite ought to concur as the consideration of the one side and the promise or sale of the other side But to maintain an Assumpsit it is not requisite for it is sufficient if there be any moving cause or consideration precedent for which cause or consideration the promise was made and that is the common practice at this day For in Assumpsit the Declaration is That the Defendant for and in consideration of ten pounds to him paid postâ—a silicet a day or two after super se assumpsit c. and that is good and yet there the consideration is executed And he said that Hunt and Baker's case which see 10. Eliz. Dyer 272. would prove it The case was this The Apprentice of Hunt was arrested when Hunt was in the Country and Baker one of Hunts neighbours to keep the Apprentice out of the Counter became his Baile and paid the debt Afterwards Hunt returning out of the Country thanked Baker for his neighbourly part and promised him to repay him the said summ Upon which Baker brought an Action upon the Case upon the promise And it was adjudged that the Action would not lie not because the consideration was precedent to the promise but because it was executed and determined long before But there the Justices held That if Hunt had requested Baker to have been surety or to pay the debt and upon that request Baker paid the debt and afterwards Hunt promiseth for that consideration the same is good for the consideration precedes and was at the instance and request of the Defendant So here Sydenham became bail at the request of the Defendant and therefore it is reason that if he be at losse by his request that he ought to satitfie him And he conceived the Law to be cleer that it was a good consideration and that the request is a great help in the Case Rodes Justice agreed with Periam for the same reasons and denyed the Case put by Anderson And he said That if one serve me for a year and hath nothing for his service and afterwards at the end of the year I promise him ten pounds for his good and faithfull service ended he may maintain an Assumpsit for it is a good consideration But if the servant hath wages given him and the Master ex abundantia as he said promiseth him ten pounds after his service ended the same promise shall not maintain an Assumpsit for there is not any new cause or consideration preceding the Assumpsit And Periam agreed to that difference and it was not denyed by the other Justices but they said that the principall Case was a good case to be advised upon and at length after good advice and deliberation had of the cause they gave Judgment for the Plaintiff that the Action would lie And note That they very much relyed upon Hunt and Bakers Case before cited See Hunt and Baker's Case in 10. Eliz. Dyer 272. Pasc 27. Eliz. in the Common Pleas. 41 CARTER and CROST's Case CArter brought an Action of Detinue of a chaine against Crosts and declared That Thomas Carter his brother was thereof possessed and died Intestate for which cause the Bishop of Cork granted him Letters of Administration and that the Chain came to the Defendants hands by Trover c. And declared also That he was as Administrator thereof possessed in London To which the Defendant Crosts pleaded the Generall Issue and the Jury gave a speciall Verdict and found that the Administration was committed to Carter in London by the Bishop of Cork in Ireland here and did not find that Carter was possessed of the chain in London And upon this special Verdict first it was moved That the Bishop of Cork in Ireland being in England might commit administration of things in Ireland And it was held cleerly by the Court That he might of things within his Diocesse in Ireland because it is an Authority Power or Matter that followes his Person and wheresoever his Person is there is his Authority As the Bishop of London may commit Administration being at York but it ought to be alwaies of things within his Diocesse and therefore they held That the Declaration was good in that point That the Bishop of Cork did commit Administration in London although there be no such Bishop of England The second point was If an Aministrator made by a Bishop of Ireland might bring an Action here as Administrator and it was holden That he could not because of the Letters of the Administration granted in Ireland there could be no triall here in England although that Rodes Justice said That Acts done in Spirituall Courts in Forrain places as at Rome or elsewhere the Law saith That a Jury may take notice of them because such Courts and the Spirituall Courts here make but one Court and he proved it by the Case of the Miscreancy in 5. R. 2. Tryall 54. where a Quare Impedit was brought by the King against the Clerk of a Church within the Bishopprick of Durham and counted that the Bishop who is dead presented his Clerk and that the Clerk died and the Chapter collated a Cardinall who for Miscreancy and Schisme was deprived the Temporalties being in the Kings hands Burgh He hath counted of an Avoidance for Miscreancy at the Court of Rome which thing is not tryable here Belknap Chief Justice I say for certain That this Court shall have Conusans of the Plea and that I will prove by Reason for all Spirituall Courts are but one Court and if a man in the Arches be deprived for a Crime and appeal to Rome and is also there deprived that Deprivavation is triable in the Kings Court in the Arches And if a man be adhering unto the Kings enemies in France his Lands are forfeitable and his adherence shall be tryed where his Land is as oftentimes it hath been for adherence to the Kings enemies in Scotland And so by my faith if one be Miscreant his Land is forfeitable and the Lord thereof shall have the Escheat and that is good reason For if a man
Bench. 70 GILE'S Case A Writ of Error was brought to reverse a Judgement given in an Action upon the Case The Action upon the Case was brought against one Quare exaltavit stagnum per quod suum pratum fuit inundatum and he pleaded Not guilty and the Jury found Quod erexit stagnum and if Errectio be Exaltatio then the Jury find that the Defendant is guilty and thereupon Judgement was given for the Plaintiffe Glanvile alledged the generall Error That Judgement was given for the Plaintiffe where it ought to have been given for the Defendant And he said That erigere stagnum est de novo facere Exaltare est erectum majoris altitudinis facere Deexaltare is ad pristinam altitudinem adducere prosternere stagnum est penitus tollere And the precise and apt word according to his Case in an Action upon the Case ought to be observed that he may have Judgement according to his damage and his complaint viz. either Deexaltare or Posternere c. 7. E. 3. 56. An Assize of Nusans Quare exaltavit stagnum ad nocumentum liberi tenementi sui The Defendant pleaded That he had not inhaunced it after it was first levyed And by Trew There is not any other Writ in the Chancery but Quare exaltavit stagnum Herle said That he might have a Writ Quare levavit stagnum and there by that book Levare stagnum exaltare stagnum do differ And therefore he conceived That the Writ should abate for using one word for another 8. E. 3. 21. Nusans 5. by Chauntrell In a Writ of Nusans Quare levavit if it be found that it was tortiously levied the whole shall be destroyed But in a Writ Quare exaltavit nothing shall be pulled down if it be found for the Plaintiffe but the inhauncing shall be abated only So 8. Ass 9. Br. Nusans 17. the same Case and difference is put and 16. E. 3. Fitz. Nusans 11. If the Nusans be found in any other forme then the Plaintiffe hath supposed he shall not recover And in 48. E. 3. 27. Br. Nusans 9. The Writ was Quare divertit cursum aquae c. and shewed that he had put Piles and such things in the water by which the course of the water was streitned wherefore because he might have had a Writ Quare coarctavit cursum qquae the Writ was holden not to be good Cook took another Exception viz. That the Assize of Nusans ought to be against the Tenant of the Free-hold and therefore it cannot be as it was here brought against the Workmen and it is not shewed here that the Defendant was Tenant of the Soil for 33. H. 6. 26. by Moile If a way be streitned and impaired an Action upon the Case lieth but if it be altogether stop'd an Assize of Nusans lieth But Prisoit said If the stopping be by the Terr-Tenant an Assize of Nusans lieth but if it be by a Stranger then an Action upon the Case but for common Nusanses no Action lieth but they ought to be presented in the Leet or Turne Drew We have shewed That he who brought the Assize of Nusans hath a Free-hold in the Land and if the Tenant be named it is sufficient although it be not shewed that he is Tenant of the Free-hold And to that all the Justices seemed to incline But then it was shewed to the Court that one of the Plaintiffes in the Writ of Error had released And if that should bar his Companions was another question And it was holden That the Writ of Error shall follow the nature of the first Action and that Summons and Severance lieth in an Assize of Nusans and therefore it was holden that it did the like in this Action therefore the Release of the one was the Release of the other But then it was asked by Glanvile What should become of the Damages which were entire Note Pasch 29. Eliz. the Case was moved again and Drew held exaltare and erigere all one and that erigere is not de novo facere for that is Levare But the Justices were against him who all held That erigere is de novo facere and exaltare is in majorem altitudinem attollere and at length the Judgment was affirmed That Erectio and Exaltatio were all one For the Chief Justice had turned all his Companions when he came to be of Opinion that it was all one And so the Case passed against Glanviles Client Mich. 28 29. Eliz. in the Kings Bench. 71 THE Lady Gresham was indicted for stopping the High-way and the Indictment was not laid to be contra pacem And Cook said That for a mis-feasance it ought to be contra pacem but for a non-feasance of a thing it was otherwise and the Indictment was for setting up a gate in Osterly Park And Exception also was taken to the Indictment for want of Addition for Vidus was no Addition of the Lady Gresham and also Vi armis was left out of the Indictment And for these causes she was discharged and the Indictment quashed Mich. 28 29. Eliz. in the King 's Bench. 72. IN an Ejectione firme Exception was taken because the Plaintiffe in his Declaration did not say Extratenet For in every Case where a man is to recover a possession he ought to say extra tenet And in Debt he ought to say Debet dâ—tinet And in a Replevin Averia cepit injustè detinet But all the Justices agreed That in an Ejectione firme those words were not materiall For if the Defendant do put out the Plaintiff it is sufficient to maintain this Action And Kempe Secondary said that so were all the ancient Presidents although of late times it hath been used to say in the Declaration Extra tenet and the Declaration was holden to be good without those words Mich. 28 29. Eliz. in the King 's Bench. 73 IN a Case for Tithes the Defendant did prescribe to pay but ob q for the Tithes of all Willows cut down by him in such a Parish Cooke It is no good prescription for thereby if he cut down all the Willows of other men also but ob q. should be paid for them all But he ought to have prescribed for all Willows cut down upon his own land and then it had been good But as the prescription is it is unreasonable and of that opinion was the whole Court Mich. 28 29. Eliz. in the King 's Bench. 74 DEIGHTON and CLARK'S Case IN an Action of Debt upon a Bond the Condition of the Bond was That whereas the Plaintiff was in possession of such Lands If I. S. nor I. D. nor I. G. did disturb him by any indirect means but by due course of Law that then c. The Defendant pleaded That nec I S. nec I. D. nec I. G. did disturb him by any indirect means but by due course of Law Godfrey The plea in Bar is not good for it is a Negative pregnans viz. such a Negative
Also hee said that the Warrant of Atturney was not good although it was usuall for that they ought to follow the course of the common Law Clenche Justice There ought to be Writ of Error before that any Judgement upon the Errors can be given for to reverse the first Record The reason wherefore the certain name of the Atturney ought to be put is because if one appeare as my Atturney without my Authority I may have my Action of the Case against him which I cannot have against W. H. It was adjourned Mich. 28 29. Eliz. in the Kings Bench. 90 TAYLOR against REBERA TAylor brought an Action of Debt upon a Bond of 800l l against Rebera which Bond was endorsed with this Condition That if the Plaintiff did bring such a Ship to such a place in Greece and at the same place should stay for the space of forty dayes or so long of the forty dayes as should please the Defendant so as he might freight the Ship the Defendant should freight the Ship within forty dayes and should bring it to such a Port in England And because he had not freighted the ship and the ship was there by the space of forty dayes he brought his Action upon the Bond The Defendant pleaded that within those forty dayes viz. by the space of four and twenty dayes the said ship was laden with Hoops so as the Defendant could not freight it And the Plaintiff did demurr in Law upon the plea. Clark for the plaintiffe The Defendant hath not answered to all the time but to part onely and he had sufficient time although the ship were laden with Hoops for the space of four and twenty dayes as 35. H. 6. Barr. 162 The Master of S. Katherines leased three houses by one Indenture upon condition that the Lessee should not suffer nor harbour any lewd woman within the same houses if he were warned thereof by the Master or his servant for the time c. And if he did not put her out within six weeks after such warning that then it should be lawfull for the Master and his Successors to enter And it was shewed That the Lessee did suffer a lewd woman there to continue wherefore such a one servant of the Master gave him warning c. and the Lessee did not put her out of the house and that therefore the Master did enter which matter c. The Lessee said that after the said warning given that the Master commanded her to enter and to dwell there for six weeks after without that that she continued there by the Defendant And it was ruled by the whole Court that the Replication was not good because the Indenture is That he should not suffer any lewd woman c. As if I be bound to enfeoff you of an Acre of Laâ—d by such a time within which time you disseise me the same is no plea for that the Feoffer hath not colour to enter therefore I may enter upon him and make the Feoffment So in that case the Master had no colour to put her into possession therefore it was no plea without shewing the speciall matter Wherefore he said That he did put her out and that the Master with force c. against the will of the Lessee did put her in and there made her to stay with force and violence against the will of the Lessee for the six weeks c. and that was holden to be a good plea. So in the principall case he doth not shew that he was kept out with force but that he might cast out the Hoops and therefore the plea is not good So 3. H. 4. 8. Br. Condition 35. There was a Covenant betwixt the Lessor and Lessee That the lessor during the lease might be four dayes in a yeer in the house without being put out upon pain of one hundred pounds and the Lessor came to enter and the Lessee shut the doors and the windows It was held that was no breach of the Covenant without saying that the lessee put him out Atkins contrary The ship was to remain there to be freighted for so many dayes as it should please the Defendant of the forty dayes for to freight her therefore the first act is to arise on the plaintiffs side and the same ought to be shewed specially to have been done As 14. H. 8. 18. Br. Condition 42. Debt upon a Bond upon Condition That if the Defendant resigne the Benefice of D. unto the Plaintiff upon a Pension as they may agree by a certain day That then c. The Defendant said that he was always ready to resigne to him the Benefice and yet is in case the Plaintiff would assure him the Pension It was no Replication for the Plaintiff That he offered him a Pension unlesse he shew that he offered him a Deed thereof So 33. H. 6. A condition was That if I may enjoy such goods I will give to you such a summ of money I ought first to enjoy the goods before that I shall pay any money Also in the principall Case it is not shewed That the ship was ready there by the space of forty daies and it is a generall rule in Conditions That if the Plaintiffe himselfe be the cause of Disablement so as the Condition cannot be performed that he shall not take advantage of a Condition as in the Case of 9. H. 7. Where one is bounden to enfeoffe such a woman before such a day and the Obligee before the day doth marry the woman 35. H. 6. and 7. H. 4. If I be bounden to pay a pension to one untill he be promoted to a Benefice and he disables himselfe to take the Benefice I shall no longer pay the pension Besides he said That in the principall Case the matter could not be tryed here for the Jury cannot take notice of a thing done ultra mare But 11. H. 7. 16. a difference is taken If the thing be all to be done beyond the sea then it cannot be tried here but if part be to be done here and part beyond sea so as it is mixed it may be tried here As a Bond with condition That if the Obligor bring the Merchandizes of the Obligee from Norway beyond the sea to Lynn here that then c. So contrary If to carry goods delivered here to Burdeaux c. It was adjourned Mich. 28 29. Eliz. in the Kings Bench. 91. SHOTBOLTS Case A Man brought an Action upon the Case against another because he caused him to be indicted and arraigned c. to his damage c. And it was for a robbery and the Plaintiffe did not shew in his Declaration that he was legitimo modo acquietatus The Defendant by way of Barre said That he was acquitted modo forma as the Plaintiffe had said and in truth he doth not say that he was acquitted Cook If the Declaration be insufficient and wanteth substance then there is no cause of Action Clench Justice A man shall
here is not mis-joyned for if the Counties could joyne the issue were good but because that the Counties cannot joyne it cannot be well tried But the issue it selfe is well enough Windham and Rodes were of the same opinion that it was not helped by the Statute but Periam doubted it Anderson said That if an issue triable in one Countie be tried in another and judgement given upon it it is errour And afterwards Lutrich the Atturney said That it was awarded that they should re-plead Nota quia mirum for 1. The Statute of 32. H. 8. Cap. 30. speaks of mis-joyning of processe and mis-joyning of issues and admit that this case is not within any of those clauses each of them being considered by it selfe yet I conceive it is contained within the substance and effect of them being considered together Also I conceive That it is within the meaning of both Statutes viz. 32. H. 8. Cap. 30. and 18. Eliz. Cap. 14. for I conceive the meaning of both the Statutes was to oust delayes circuits of actions and molestations and that the partie might have his judgement notwithstanding any defect if it were so that notwithstanding that defect sufficient title and cause did appeare to the Court. And here the Plaintiffe hath sufficient cause to recover If any of the points of the issue be found for him For if it bee found that the matter and substance of the oath be found true which might be tried well enough by those in London the Plaintiffe hath cause to recover Wherefore I conceive that the verdict in London is good enough and effectuall And note That Rodes said that hee was of Councell in suh a case in the Kings Bench betwixt Nevell and Dent. Mich. 28 29. Eliz. in the Common Pleas. 128 IN an Action of Trespasse the Defendant pleaded that at another time before the Trespasse he did recover against the same Plaintiffe in an Ejectione firme and demanded judgement And the opinion of the whole Court was That it is a good plea primâ faciâ— and that the possession is bound by it for otherwise the recovery should be in vaine and uneffectuall And Anderson chiefe justice said That if two claime one and the same Land by severall Leases and the one recovereth in an Ejectione firme against the other that if afterwards the other bring an Ejectione firme of the same Land the first recovery shall be a barre against him Rodes said That hee can shew authority that a recovery in an Ad terminum quem praeteriit shall bind the possession Mich. 28 29. Eliz. in the Common Pleas. 129 IN Trespasse the Defendant did justifie as Bailiffe unto another The Plaintiffe replied that he took his cattell of his own wrong without that that he was his Bailiffe Anderson chiefe Justice If one have cause to distreine my goods and a stranger of his own wrong without any warrant or authority given him by the other take my goods not as Bailiff or servant to the other And I bring an Action of trespasse against him can he excuse himself by saying that he did it as my Bailiffe or Servant Can he so father his mis-demeanours upon another He cannot for once he was a trespasser and his intent was manifest But if one distrein as Bailiffe although in truth he is not Bailiffe if after he in whose right he doth it doth assent to it he shall not be punished as a trespassour for that assent shall have relation unto the time of the distresse taken and so is the book of 7. H. 4. And all that was agreed by Periam Shuttleworth What if hee distraine generally not shewing his intent nor the cause wherefore he distrained c. ad hoc non fuit responsum Rodes came to Anderson and said unto him If I having cause to distrain come to the Land and distraine and another ask the cause why I do so if I assigne a cause not true or insufficient yet when an Action is brought against me I may avow or justifie and assigne any other cause Anderson That is another case but in the principall case clearly the taking is not good to which Rodes agreed Mich. 28 29. Eliz. in the Common Pleas. 130 HOODIE and WINSCOMB'S Case IN an Attaint brought by Hoodie against Winscombe c. One of the Grand Jury was challenged because he was a Captain and one of the Petie Jury was his Lieutenant And it was holden by the whole Court that that was no principall challenge Windham It hath been holden no principall challenge notwithstanding that one of the Jurours was Master of the Game and one of the Petit Jury was Keeper of his Park And in that case it was holden by all the Justices That if a man make a Lease rendring rent upon condition that if the rent be behind and no sufficient distresse upon the Land that then the Lessor may re-enter If the Rent be behind and there be a piece of lead or other thing hidden in the Land and no other thing there to be distrained the Lessor may re-enter for the distresse ought to be open and to be come by for if it should be otherwise said a sufficient distresse one might inclose money or other things within a wall and thereby the Lessor should be excluded of his re-entry Mich. 28 29. Eliz. in the Common Pleas. 131 IN a Quare Impedit the Plaintiffe counted That the Defendant being Parson of the Church in question was presented to another Benefice and inducted 15 Aprilis and that the other Church became void c. The Defendant said That he was qualified at such a day which was after 15 Aprilis without that that he was inducted 15 Aprilis And the Court was of opinion Anderson being absent that it was no good Traverse for he ought to have said generally without that that he was inducted before the day in which he is alledged to be qualified As if one declare in Trespasse done 1 Aprilis and the Defendant plead a Release 1. Feb. he ought to traverse without that that the Trespasse was done before the Release by Periam Justice Mich. 28 29. Eliz. in the Common Pleas. 132 HALES and HOME'S Case IN an Avowry for Damage feasance one pleaded a Lease made unto him by I. S. the other said that before the Lease â— S. did enfeoff him the other replied and maintained the said Lease absque hoc quod J. S. seiâ—itus feoffavit Gawdy The Traverse is not formall for the word seisitus is idle and ought to be left out for he cannot enfeoff if that he were not seised and it hath never been seen that the seisin in such Case hath been traversed but generally in Pleading the Traverse hath been absque hoc that Feoffavit without speaking of seisin which is superfluous And so was the opinion of the whole Court Mich. 28 29. Eliz. in the Common Pleas. 133 THE Queen granted Lands unto the Earle of Leicester by her Letters Patents the Patentee made a Lease of
should not kill the Coneys He cannot take them damage feasants for he cannot impound them Nor doth a Replevin lye of them 19. E. 3. and F. N. B. If the Lord surcharge the Common the Commoner may have an Action against him but in this Case he can have no Action Gaudy Chief Justice He cannot kill the Coneys because he may have other remedie Suit Justice A Commoner cannot take or distrain the Cattel of a Freeholder damage feasants And therefore he cannot kill or destroy the Coneys and he hath a remedy for he may have an Action upon the Case or an Assize against him for putting in of the Coneys if he do not leave sufficient Common for the Commoner Judgment was afterwards given for the Plaintiff Hill 29. Eliz. in the King 's Bench. 145 YARRAM and BRADSHAWE's Case YArram and Wilkenson Sheriffs of the City of Norwich brought an Action upon the Case against Bradshawe because that they being Sheriffs of N. A Capias ad satisfaciendum and shewed at whose Suit and in what action was awarded unto them And they 20. Feb. Anno 25. El. directed their Warrant in writing to three Sergeants of the same City to arrest him by force of which the Sergeants the 26. of Feb. in the same year did Arrest him in Execution and that he was rescued and escaped And that they had spent divers summs of Money in enquiring after him ad grave damnum eorum c. The Defendant pleaded Not Guilty And upon Tryal of the issue a special Verdict was found that about 20. Feb. Anno 25. such a Warrant was made by them unto the Sergeants but not 20. Feb. and that the Sergeans by force thereof about 26. Feb. did Arrest him but not the 26. of Feb. and upon the whole matter there was a demurrer in Law Tanfield for the Defendant and he said It was no Lawfull Arrest For by 8. E. 4. A Bailiff without a Warrant in writing may take goods in Execution and it is good if it be by commandment by word onely of the Sheriff but he cannot Arrest the body of a man without a Warrant in writing sigillo signatum which is not shewed here in the plaintiffs Declaration If one in debt declare per factum suum obligatorium and doth not say sigillo suo sigillatum it is not good Quaere of that for the Book of Entries is not so Secondly he said it must be a present loss or damage to the plaintiffs or else they cannot maintain the action They are chargeable but not charged for if the Sheriffs dye before he begin any Suit against them their Executors shall not be charged But if the plaintiffs have been Arrested then they are endamaged Thirdly as to the Verdict the foot and foundation of the action is the wrong and the wrong here is not found certain for it is supposed to be 26. Feb. And also that the Warrant was Circa 26. Feb. but not 26. Feb. and if it were any day before then the action is maintainable but not if it were any day after A man brings an action of Trespass supposing by his writ the same to be done 1. May If in truth the Trespass was before then it is good but if it were 2. May or at any time after 1. May then it is not good It was a great Case betwixt Vernon and Gray in an Ejectione firme The Ejectment was supposed 1. May and the Jury did finde the Ejectment to be Circa first May and adjudged not good If an Ejectione firme be brought upon a lease made 1. May and the Jury finde the Ejectment to be circa 1. May it is not good Also here they could not take him in Execution again although they had found him For if a man be once out of Execution by 14 H. 7. He shall not be taken again in Execution for the same cause The Court held it not material whether he shewed or not that the Warrant was sub sigillo sigillat ' and therefore thy did not speak to it Godfrey for the plaintiff What if they be not charged but chargeable yet they shall have their action upon the Case for the wrong done viz. The Rescous and the Escape because the Defendant shall not take advantage of his own wrong and so is the opinion of Frowick 13. H. 7. 1. Reporter Quaere For Frowick saith He shall have an action upon the Case or Trespas for breaking of prison against him and shall recover in damage as much as he lost by the escape and so he shall be helped and not by taking of him again And Fitzherbert in his Natura Brevium in the Writ of Ex parte talis holds that upon an Escape the Gaoler shall have a special Writ upon the Case against the Prisoner to answer for the Escape and the damages which the Gaoler shall sustain thereby and it was holden in a great Case viz. One Holts Case That it is not necessary to shew that there was a recovery against them Tanfeild but there it was after a Suit begun although before recovery Godfrey they have also put it in their Declaration that they have expended great sums of Money in looking for him therefore they have shewed that they were damnified Tanfeild it was foolish for them to spend their Money for they could not have taken him again although they had found him Godfrey A man shall have an action for fear of vexation or trouble or charge as one shall have a Warrantia Charta before he be impleaded A man shall have a Curia Claudenda before any breach of the enclosure As to the Verdict It is certain enough for it saith Quod tunc ibidem seipsum recussit and that cannot but be referred to a time certain before viz. 26. Feb. Tanfeild It shall be referred to circa and therefore ad tunc ibidem do remain uncertain Suit Justice Presently by the escape there was a wrong done therefore for that he may have an action Clenche Justice said That he had experience in a Case of Trespas And it was the opinion of almost all the Judges of England That if the Trespass should be done after the day wherein it is supposed to be done by the Writ Yet the Writ shall not abate and therefore he said That the difference of the Trespas done before and after the day supposed by the Writ is to no purpose Further he said that it standeth them upon to have their action before they be sued by the party at whose Suit he was in Execution for perhaps he who was in Execution might dye and other changes might happen so as they might lose all Tanfeild What damages shall the Sheriffs have here if they shall recover before any action be brought against them when as it is uncerrain whether ever they shall be sued or not and so uncertain how much they shall be damnified But notwithstanding all which was said by Tanfeild Judgment was given for the Plaintiffs Hill 29.
Eliz. in the Common Pleas. 146 LONDON doth prescribe to have a Custom That after Verdict given in any of the Sheriffs Courts or such like Court there that the Maior may remove any such Suit before himself and as Chancellor secundùm bonam sanam conscientiam moderate it and it was moved whether it were a reasonable custom or not because that after tryal by ordinary course at Law he should thereby stay judgment Gaudy Justice It ought to be before judgment otherwise it cannot be for the Statute of 4. H. 4. is that judgment given in any Court shall not be reversed but by Error or Attaint Vide Rastal Tit. Judgment Mich. 28. Eliz. in the Common Pleas. Rot. 2619. 147 GREENE and HARRIS Case IN an Ejectione firme upon a special Verdict it was found that one John Brenne was seised of a Manor where there were Copyholders for life and by Indenture leased a copyhold called Harris Tenure parcel of the Land in question to Peter and John Blackborow for eight years to begin after the death of Brenne his Wife and by the same Indenture leased all the Manor to them as before The Copyholder did surrender and Brenne granted a copy to hold according to the custom of the Manor Brenne and his Wife died So as the lease of Blackborow was to begin Peter entred and granted all his Interest unto a stranger and died John entred into the whole as Survivor and made a lease thereof to the Plaintiff and the Copyholder entred and he brought the action Shuttleworth for the plaintiff The question is whether the plaintiff shall have Harris Tenure as in gross or as parcel of the Manor and he conceived that because it is named by it self that it shall pass as in gross for so their intent appeareth to be In 33. H. 8. Dyer 48. A Feoffment was made of a Manor to which a Villein was Regardant by these words viz. Dedi unam acram c. And further Dedi concessi Villanum meum and there it was holden that the Villein should pass as in gross and that they were several gifts although there was but one Deed. The same Law shall be of an Advowson appendant 14. and 15. El. Dyers Husband and Wife were joint-tenants in Fee of a Manor out of which the Queen had a Rent of twenty pound per annum and she by her Letters patents in Consideration of Money paid by the Husband did give grant release and remise unto the Husband and his heirs the said twenty pound Rent habendum percipiendum to him and his heirs The Husband did devise the Rent unto another and his heirs and dyed There it is debated whether the Wife should pay the Rent or not and it was holden that she should pay it for the deed having words of grant and release it shall be referred to the Election of the Husband and for his best avail how he will take it and there is no necessity that the Rent be extinguished in his possession for it is a maxime in Law that every grant shall be taken beneficially for the grantee so is it if it contain words of two intents he may take that which makes best for him 21. and 22. H. 6. A deed comprehending Dedi concessi was pleaded as a Feoffment In 5. E. 3. A Rent issuing out of Lands in Fee was granted to Tenant by the courtesie to have and to hold to him and his heirs It shall not be taken as extinct but the Rent shall go to his heires although he himself could not have it Then in our Case because it is more beneficial for the Termor he shall have it in gross And so he shall avoid the Estate of the Copyholder afterwards and here is an Election made by Peter so to have it by the grant of his Interest over Our Case is not like unto the Case of 48. E. 3. 14. Where a Cessavit was brought supposing that the House was holden of the Plaintiff by five Shillings and the Defendant pleaded that the Ancestor of the Plaintiff by his deed which he shewed forth gave the house to him and a shop which are holden by one intire service and demanded judgment c. And there it was holden that that deed did not prove but that the shop might be parcel of the house and not a shop in gross by it self And there Finchdon saith That if a man grant the Manor of F. to which an Advowson is appendant and the Advowson of the Church of F. so as it is named in gross yet it shall pass as appendant I yeild to that for there it is not more beneficial for him the one way or the other as it is in our Case It may be perhaps objected That the Plaintiff here shall not recover at all for the cause alleadged in Plo. Comm. 424. in Bracebridges Case because that the action is brought for a certain number of Acres as one hundred Acres and it is found that the Plaintiff hath right but to a moyty of them But it hath been ruled against that viz. that he shall recover Walmesley Sergeant contrary Notwithstanding that this Copy-hold be twice named yet it shall pass as parcel of the Manor and not as a thing in gross and there is but one Rent one Tenure and one reversion of both 45. E. 3. A Fine was levyed of a Manor unto which an Advowson was appendant wherein a third part was rendred back to one for life with divers Remainders over And so of the other two parts with the advowson of every third part as abovesaid and there it is debated who shall have the first avoidance And it is holden notwithstanding the Division as aforesaid and the naming of one before the other that they are all Tenants in common of it So as if they cannot agree to present that Lapse shall incurre to the Bishop and there no Prerogative is given to him who is first named nor any prejudice to the last named for being by one Deed it shall passe uno flatu 14. H. 8. 10. A Lease was made for a year Et sic de anno in annum c. And there it was debated whether it were a severall Lease for every year and it was ruled That an Action might be brought supposing that he held for one and twenty years if in truth by force of the same Demise the Lessee occupy the Land so long And if I by my Deed grant unto A. and B. the services of I. D. and by the same Deed the services of I. S. are also granted unto them they are Joyn-tenants of the Services or Seignories So if I lease a Manor reciting every parcell of the Land of the Manor for the whole consists in severall parcels In 33. H. 8. before remembred It is said That the Advowson shall be appendant if the whole Manor be granted c. But if it be admitted that there be severall Leases and that it passeth as a thing in grosse
did admit a Copy-holder in Remainder for life That the same was a good admittance according to the Custome And that he was a sufficient Dominus pro tempore as to this purpose Although it was objected by Walmesley That the Gardian is but Servus and not Dominus But because it was agreed that he had a lawfull Interest the admittance was good and so it was adjudged 33. Eliz. In the Common Pleas. 178 SHIPWITH and SHEFFIELD'S Case THe Custome of a Copy-hold Manor was That a feme Covert might give Lands to her Husband And if it were a good Custome or not was the Question Fleetwood The Custom is good and vouched 12. E 3. That in York there is such a custome That the Husband might give the Land of his own purchase to his wife during the Coverture and it is a good Custome That an Infant at the age of fifteen years may make a Feoffment 29. E. 3. and the same is good at the Common Law and yet the same all began by custome But the Court was of opinion That the Custome is unreasonable because it cannot have a lawfull Commencement And Anderson Chiefe Justice said That a Custome that an Infant at the age of seven years might make a Feoffment is no good custome because he is not of age of discretion And in this case at Barre It shall be intended that the wife being sub potestate viri did it by the Coherison of her Husband The same Law is of a Custome That the wife may lease to her Husband Fleetwood urged That the custome might be good because the wife was to be examined by the Steward of the Court as the manner is upon a Fine to be examined by a Judge To which the Court said nothing 31. Eliz. in the King's Bench 179 AN Action upon the Case upon an Assumpsit was brought And the Plaintiff layed his Action That such a one did promise him in respect of his labour in another Realme c. to pay him his contentment And he said That Twenty five Pound is his contentment and that he had required the same of the Defendant Cook moved in arrest of Judgement it being found for the Plaintiffe upon Non Assumpsit pleaded that no place was alledged where the contentment was shewed And the opinion of the Court was against him for Gawdy and Wray were of opinion that he might shew his contentment in any Action and so it is where it is to have so much as he can prove he might prove it in the same Action Cook said That it had been moved in stay of Judgement in this Court upon an Assumpsit because the request was not certain And that case was agreed by the Justices because the request is parcell of the Assumpsit and the entire Assumpsit together in such case is the cause of the Action but in this case that he should content him is not the cause of the Assumpsit but only a circumstance of the matter and it was resembled to the Case of 39. H. 6. where a Writ of Annuity was brought for Arrerages against an Abbot pro consilio c. And the Plaintiffe declared that the Councel was ad proficuum Domus and was not alledged in certain and it was holden that the same was not materiall although it were uncertain because it was but an induction and necessary circumstance to the Action And so the Plaintiffe recovered and had Judgement Mich. 29 Eliz. in the King 's Bench. 180 THE Statute of 23. Eliz. cap. 25. is Quod non licuit alicui to engrosse Barley c. and in the Statute there is a Proviso That he may so do so as he convert it into Malt. The question was If in an Information upon that Statute That the Defendant had converted it to Malt he might plead the generall Issue Not guilty and give in Evidence the speciall matter or whether he ought to plead the speciall matter Clench Justice He may plead Not guilty c. for the Proviso is parcel and within the body of the Statute as 27. H. 8. 2. where upon an Information upon the Statute of Farmors it is holden by Fitzherbert That the Vicar may plead Non habuit seu tenuit ad firmam contra formam Statuti c. and yet the Statute in the premises of it restrains every Spirituall Person to take in Farme any Lands c. and afterwards by a Proviso gives him liberty to take Lands for the maintenance of his house c. As upon the Statute of R. 2. If he do plead That he did not enter contra formam Statuti he may give in Evidence that he entred by Title as that his father was seised and died and the same is not like unto the condition of a Bond for that is a severall thing But the Proviso and the Statute is but one Act. Mich. 29. Eliz. in the King 's Bench. 181 NOte It was said by Master Kemp Secondary of the King's Bench That there is a Court within the Tower of London but he said That it was but a Court Baron and said That he can shew a Judgement That no Writ of Error lieth of a Judgement given there And it was a question Whether Process might be awarded to the Lieutenant of the Tower for Execution upon a Judgment given in the Kings Bench because the Defendant was removed and dwelt within the Liberty of the Tower And it was said It could not but the Writ ought to be awarded to the Sheriffs of London and if they returne the Liberties of the Tower then a Non omittas shall be awarded But some Counsellors said That although a Non omittas be awarded yet the Sheriffs durst not go unto the Liberties of the Tower to serve the Process 2 Jacobi in the Common Pleas. 182 The Lady STOWELL'S Case IT was adjudged in this Case That the wife who is divorced causa adulterii shall have her Dower 3. Jacobi in the Common Pleas. 183 WARNER'S Cafe LEssee for twenty years doth surrender rendring rent during the term It was adjudged a good rent for so many years as the term might have continued 3. Jacobi in the King 's Bench. 184 WHITLOCK and HARTWELL'S Case TWO Joint-Tenants for life the one demised and granted the moyty unto his companion for certain years to begin after his death Adjudged void because it is but a possibility And so is it of a Covenant to stand seised to the use c. as it was adjudged in Barton and Harvey's Case 37. Eliz. 3. Jacobi In the Kings Bench. 185 PINDER'S Case A. devised lands in Fee to his son and many other lands in tail And afterwards he said I will that if my son die without issue within age that the lands in Fee shall go to such a one Item I will that the other lands in tail shall go to others and doth not say in the second Item if the son dieth without issue within age It was adjudged That the second Item should be without
that a Man was seised of the Manor of D. and of a house called W. in D. and also of a Lease for years in D. and he did bargain and sell unto another his Manor of D. and all other his Lands and Tenements in Dale and in the indenture did covenant that he was seised of the premisses in Fee which was left out of the Verdict and if the Lease for years should pass by the general words was the question Quaere of the case because Trinit 10. Jacobi the Court was divided in opinion in this Case Mich. 9. Iacobi In the King 's Bench. 262 HUGHES and KEENE's Case THe Plaintiff declared that whereas he was possessed of a Messuage for years which had ancient lights and the Defendant possessed of another House adjoyning and a Yard that the Defendant upon the said Yard had built a House and stopped his lights The Defendant pleaded that the custom of London was that every man might build upon his old Foundation and if there be not any agreement might stop up the Windows of his Neighbour upon which the Plaintiff did demurre in Law and it was adjudged for the Plaintiff because that the Defendant did not answer the Plaintiffs charge that he had built upon the new and not upon the old Foundation And it was holden by the whole Court in this Case that a man may build upon an old Foundation by such a custom and stop up the lights of his Neighbour which are adjoyning unto him and if he make new Windows higher the other may build up his house higher to destroy those new Windows But a man cannot build a House upon a place where there was none before as in a Yard and so stop his Neighbours lights And so it was adjudged in the time of Queen Elizabeth in Althans Case upon such a custom in the City of York And it was said by Cook Chief Justice That one prescription may be pleaded against another where the one may stand with the other as it was adjudged in Wright and Wrights Case That a Copy-holder of a Bishop did prescribe that all Copy-holders within the Manor have been discharged of Tithes But not where one prescription is contrary to the other whereas one prescribes to have lights and the other prescribes to stop the same lights Quaere Hill 9. Iacobi in the King 's Bench. 263 SAMFORD and HAVEL's Case IN an Action of Trespass for 30. Hares and 300. Coneys hunted in his Warren taken and carried away which Trespass was layd with a continuando from such a time till such a time the Defendant justified because he had common in the place where c. to a Messuage six Yard Lands for 240. Sheep and that he and all those whose estate he hath time out of mind have used at such time as the Common was surcharged with Coneys to hunt them kill and carry them as to his Messuage appertaining upon which the Plaintiff did demurre in Law because a man cannot make such a prescription in the Free-Warren and Free-hold of another Man And secondly because a man cannot so prescribe to hunt kill and carry away his Coneys as pertaining to his Messuage But a Man may prescribe to have so many Coneys to spend in his House and for these causes in the principal case the prescription was holden for a void prescription and Judgment was given for the Plaintiff Hill 9. Jacobi in the Common Pleas. 264 COX and GRAY's Case IT was adjudged upon a Writ of Error brought upon a Judgment given in the Marshalsey in an Action of trover and conversion of goods That if none of the parties be of the Kings houshold and judgment be given there that the same is Error and for that cause the Judgment was reversed Hill 9. Iacobi in the Common Pleas. 265 MORRIS's Case IN an Action upon the case for putting of cattel upon the common it was adjudged that if the cattel of a Stranger escape into the common the Commoner may distrain them damage feasance as wel as where the cattel are put into the common by the stranger Pasch 10. Jacobi in the Common Pleas. 266 The Lord MOUNTEAGLE and PENRUDDOCK's Case IT was holden by the whole Court in this case and agreed by all the Serjeants at the Barre That if two men submit themselves to the arbitrament of I. S. And the Arbitrator doth award that one of them shall pay ten pound and that the other shall make a release unto him that the same is a void Award if the submission be not by Deed and hee to whom the Release is to be made by the Award may have remedy for it for otherwise the one should have the ten pound and the other without remedy for the Release And it was resolved That upon submission and arbitrament that the party may have an Action upon the Case for not making of the Release And Cook chief Justice said That it was wisely done by Manwood chiefe Baron when he made such award That a Lease or such like Collaterall thing should be done To make his Award that he should make the Release or pay such a sum of money for which the party might have a remedy I conceive that the reason is That no Action upon the case upon an Arbitrament lieth because it is in the Nature of a Judgement At another day the opinion of the Court was with Cook and 20. H. 6. and 8. E. 4 5. cited to the purpose that there ought to be reciprocall remedy It was also said in this Case That by the Statute of 5. H. 5. A man cannot be Nonsuit after verdict Pasch 10. Jacobi In the Common Pleas. 267 COOK and FISHER's Case IN a Replevin the Defendant did avow for rent granted to him by a private Act of Parliament The Plaintiffe did demand Oyer of the Act and the opinion of the Court was that he ought to have Oyer for they held that the Oyer of no Record shall be denied to any person in case he will demurre And the Record of the Act shall be entred in haec verba Pasch 10. Jacobi in the Common Pleas. 268 The Bakers Case of Gray's-Inne against Occould AN Action of Debt was brought in London against Occould late Steward of Gray's-Inne upon a generall indebitatas assumpsit without shewing the particulars which plea was removed into the Common Pleas. And it was holden by the Court That the Action as it was brought would not lie for the inconvenience which might follow For the Defendant should be driven to be ready to give an answer to the Plaintiffe to the generality And therefore the Plaintiffe ought to bring a speciall Action for the particular things The like Case was in the Marshalsey and because they did not declare in a speciall manner Exception was taken to it and adjudged the Action upon a generall Indebitatas assumpsit did not lie Quaere Trinit 10. Jacobi in the Common Pleas. 269 READ and HAWE's Case IN a Replevin Trinit
10. Jacobi Râ—t 2504. The Plaintiff counted that the Defendant Cepit avena of the Plaintiff apud Occould and doth not say In quodam loco c. upon which the Defendant did demurre in Law Hutton Serjeant argued for the Plaintiffe and said That notwithstanding the many presidents which had been shewed that yet the Declaration was well enough For he said That the presidents did not prove that it was necessary that it should be therein shewed in quodam loco vocat ' because the Defendant upon the matter is the Actor and therefore he best knows the place where he took the Cattel And in 9. E. 4. In a Homine replegiando the Towne onely was named and it is not there debated whether the same were good without mentioning in quodam loco 49. E. 3. 14. and 24. 9. H. 6. and 3. H. 6. There the traverse was of the taking at Dale sans ceo c. that the same was at Sale and in quodam loco is not expressed Cook Chief Justice said That there is no book which taketh this Exception and said That notwithstanding the Presidents cited that it was well enough For hee said There is a difference betwixt Presidents which are the Inventions of Clarks and of judiciall Presidents And the effect of the Suit in this case is not the shewing of the place but the having of the Cattel and it is on the part of the Defendant to shew where hee took the Cattel for perhaps the Plaintiffe doth not know where he took them and if he did know the place where they were taken yet perhaps hee hath not witnesses to prove the same and so by this means the Plaintiffe should be at a great mischiefe and delayed in his Suit Whereas a Replevin is festinum remedium to have his Cattel again which perhaps are his plough Cattel Warburton Justice said That there is a difference betwixt Actions brought in the King's Bench and in this Court For there in an Action of Trespasse the same may be abutted because it is no Originall Writ as it is here and hee said That there although the place bee not certainly abutted yet it may be good And he compared the Case at barre to the pleading of a Joynt-tenancy for he said In case it bee pleaded of the part of the Tenant himselfe hee is to shew how the Joynt-tenancy came because it lyeth in his knowledge but contrary if it were on the Plaintiffs part And in this Case he who best knowes when the taking was ought to shew it and that is the Avowant for it is no reason that the Plaintiffe for missing of the place not being the substance should be triced Cook If one in the night drive my Cattel into his Land and afterwards doth distrein them it is no lawfull distresse At another day Cook said That in the Book Nov. Narration ' it is said That the Town place and collour of the beasts ought to bee shewed by the Plaintiffe in the Replevin and he said If the Colour had been left out he would have given credit to the Book but because it is clear that the Colour is not needfull to be shewed therefore he did not approve of the Authority for the place And he cited 4. E. 3. 13. where the Defendant said it was in the Hamlet And 18. E. 3. 10. E. 3. and 49 E. 3. 14. where the Towns only are mentioned And it was said That in an Ejectione firme brought in the Kings's Bench the usuall course is to abutt the Land yet he said It might be omitted in Trespasse although the same be the usuall forme of that Court and it may be generall but if a place be alledged then the same is materiall and the Plaintiffe doth thereby give an advantage unto his Adversary At another day Haughton Serjeant argued for the Defendant That the expressing of the place where the taking was is materiall in the Declaration and he said That as the Register is the rule for Originall Writs from which forme a man may not vary so he said The Book of Entries and Presidents of the Courts were rules for pleadings from which there ought to be no variance and therefore he cited 33. H. 6. 14. Where in a Writ of Entry in the nature of an Assize the Demandant counted How that A. gave Lands unto J. S. his Cosen whose Heir he is in tail and shewed the descent And Exception was taken unto the Count because it was not the forme of the Pleading in that Court wherefore it was awarded That he should count that ipse fuit seisitus ut de libero tenemento which is not repugnant although that he had an Estate in tail because the same was the Ancient form used in the Court So he said in the principall Case the ancient used forme of the Court ought to bee observed which was to expresse in the Count the place in which the taking was and hee cited 35. H. 6. 40. Where Exception was taken by the Defendant because the Plaintiff in the Replevin did not alledge the place where the taking was and therefore per curiam the Plaintiffe took nothing by his Writ and he denyed the opinion of 9. E. 4. 41. and said That in reason the place ought to be shewed because if the Defendant would plead any matter to the Jurisdiction of the Court the place must be shewed and he said That those Records which were shewed on the other side were but of later times and the Point in question in none of those Cases came in debate judicially wherefore he concluded for the Defendant Hutton Serjeant argued again and said That the Formes of Originall Writs are certain from which a man is not to vary but he said That Counts and Declarations are to be according to the matter And in the principall Case he conceived That it was not necessary that the place where the taking was be shewed and hee cited 4. Ed. 3. 13. in a Replevin the Plaintiff declared of the taking of his Cattel in Holme without saying In quodam loco vocat ' c. and it was holden good because the Towne or Hamlet is sufficient certain and 21. H. 7. 22. a. in a Replevin the Plaintiffe declared of a taking at D. the Defendant said That he took them at S. and not at D. and avowed and no Exception was taken thereunto for want of expressing the place in quo c. And he said That in 9. Ed. 4. 41. and 25. it is said That in a Replevin the use is to declare in a certain place but if the place be omitted yet it is good enough and that Book is after 33. H. 6. 40. and hee said That the cause of the Judgement in 33. H. 6. might be because there were Blanks left for the place and the Plaintiff had begun to alledge the certain place for the Record is In quodam loco vocat ' without expressing the place but Blank which he could not affirme and therefore it
And it was further said by the Court That if there were but thirty Tythe-sheafs in all that the Owner should not have them for then the Custom should be unreasonable And Day was given to the other side to shew Cause why the Prohibition should not be awarded Mich. 11. Jacobi in the Common-Pleas 325. GANDEN and SYMMON's Case NOte That where a Juror is not challenged by one party who had sufficient cause of challenge and afterwards is challenged by the other side and afterwards the party doth release his challenge in that case the first party cannot challenge the same Juror again because he did foreslow his time of challenge and he had admitted the party for to be indifferent at the first Mich. 11. Jacobi in the Common-Pleas 326. The Bishop of CHICHESTER and STRODWICK's Case IN an Action of Trespass for taking away of Timber and the Boughs of Trees felled The Defendant as to the Timber pleaded Not guilty And as to the Boughs he made a special Justification That there is a Custom within the Mannor of Ashenhurst in the County of Sussex That when the Lord fels or sels Timber-trees that the Lord is to have only the Timber and that the poor Tenants in Coscagio parte Manerii time out of mind have used to have the Branches of the Trees for necessary Estovers to be burnt in necessario focali in terris tenementis And the Opinion of the Court was That the Custom was not well expressed to have Estovers to burn in terris tenementis for that Estovers cannot be appertaining to Lands but to Houses only And therefore whereas the Defendant in the Case did entitle himself to a house and lands and gave in Evidence that the Custom did extend to Lands it was holden that the Evidence did not maintain the Issue And the Custom was alleadged to be That the Lord should have Quicquid valeret ad maremium and that the Freeholders should have ramillos Which as Hobart Chief Justice said is to be meant all the Arms and Boughs for whatsoever is not maremium is ramillum 2. It was holden in this Case That the Non-use or Negligence in not taking of the Boughs did not extinguish nor take away the Custom as it hath been oftentimes resolved in the like case And note that in this Case to confirm the said Custom the Book-case was cited which is in 14. E. 3. Fitz. t' Bar. 277. and the same was given in and avowed for good Evidence where the Case was That the Bishop of C. which shall be intended the Bishop of Chichester brought an Action of Trespass for felling of Trees and carrying them away where the Defendant pleaded That he held a Messuage and a Verge of Land of the Bishop and that all the Tenants of the Bishop within the Manor of A. ought to have all the Windfals of Trees and all the Boughs and Branches c. Which Case as Harris Serjeant conceived was the Case of the very Mannor now in question and the Tenant there as in this Case made a special Justification and there it was holden that it was good and adjudged for the Defendant Also in that Case it was adjudged That the Lord should have Maremium and that the Tenants should have Residuum which shall be intended the Boughs and Branches And the Custom in the Case was adjudged good But because the Defendant alleadged the Custom to be to have the same as Estovers to be burned in terris and gave Evidence only to the Messuage it was found against the Defendant for that the Evidence did not maintain the Issue Mich. 11. Jacobi in the Common-Pleas 327. VAUGHAN's Case IN a Formedon in the Discender the Tenant had been essoined upon the Summons and also upon the View And after was pleaded Ne dona pas the general issue and thereupon issue was joyned And if he might be essoined again after issue joyned was the Question And the Court was of opinion That in a real action the Tenant may be essioned after Issue joyned but not in a personal action by the Statute of Marlebridge And Hobart Chief Justice said That the Statute of Marlebridge gave not any Essoin but only did restrain Essoins and therefore in real Actions the same is left as it was at the Common Law and by the Common Law the Tenant might be Essoined after Issue joyned And note per totam Curiam That if an Essoin be not taken the first day it shall never after be taken Mich. 11. Iacobi in the Common-Pleas 328. CLAY and BARNETS Case IN an Ejectione Firme the Case was this Sir Godfrey Foliamb had issue James his son who had issue Francis And Sir Godfrey Foliamb was seized in Fee of divers Lands as well by purchase as by discent in sundry Towns viz. Chesterfield Brampton c. in the Tenures of A. B. C. c. and dyed James Foliamb his son 7 E. 6. made a Conveyance of divers Lands to Francis Foliamb being his younger son in haec verba viz. Omnia mea Mesuagia terras tentam in Chesterfield Brampton c. modo in tenuri of the said A. B. C. quae pater meus Galfrid Foliamb perquesivit from divers men whom he named in certain And also convey a House called the Hart to the same Francis which came to him by discent by the same Conveyance which was in the occupation of one Celie and not in the Tenures of the said A. B. C. And the great Question upon the whole Conveyance was Whether all the Lands which he had by Discent in the said Towns and in the Occupations and Tenures of the said A. B. C. did pass or only the purchased Lands And it was resolved by the whole Court That the Conveyance did pass only the Lands which he had by purchase except only the said House which was precisely named and conveyed and did not pass the Lands which he had by Discent For if all the Lands which he had by Discent should pass by the general words then the special words which passed the House which he had by Discent should be idle and frivolous and that was one reason ex visceribus causae that only the purchased Lands did pass 2. It was said by Justice Warburton That if a man giveth all his Lands in D. in the Tenures of A. B. and he hath Lands in D. but not in their Tenures that in that case all his Lands in D. passeth So if a man give all his Lands in D. which he had by Discent from his son there all his Lands whatsoever shall pass Hobart acc ' and said That if a man gives all his Lands in the County of Kent if he have Lands within the County they do pass And he said that in a Conveyance every restriction hath his proper operation and in the Conveyance in the principal case there were three restrictions 1. All his â—ands in such Towns viz. Chesterfield Brampton c. 2. All his lands in the
in the Kings Bench is Judicium affirmetur stet in pleno robore effectu And it is not as the Judgment is in 20 E. 4 44. Judicium stet in aeternum And so that not being the fundamental Judgment the Reversal thereof is but the beginning of another suit 38 H. 6. 3. And admit that the VVrit of Error be a Supersedeas for the second Judgment yet it is a Question whether it shall be for the first which is not touched by the VVrit And whether they may grant Execution upon it or not Vide 13 E. 4. 4 43 E. 3. 3. 8 H. 7. 20. And therefore the Court advised Sir Christopher Heydon to sue unto the Kings Majesty by Petition to have a new Writ of Error for without Petition he cannot have the Writ 32 E. 3 1. 8 E 2. Error 88. And the Justices gave him warning to do it in time convenient otherwise they would award Execution if they did perceive the same to be meerly for delay according to the Cases in 6 H 7. 8 â— 7. And afterwards the Parliament being upon a sudden dissolved without any thing done therein Execution was awarded Pasch 12 Iacobi in the Kings Bench. 346. BLITHMAN and MARTIN's Case IOhn Blithman brought an Action upon the Case against Martin upon an Assumpsit and recovered And it was moved That because the Consideration which was the Cause of the Action was against Law that the Judgment might be stayed For the Plaintiffe did alleadge the same to be in consideration That if the Plaintiff being Goaler of such a Prison in Devâ—nshire would deliver one who was in Execution for Debt he promised to give him Twenty pounds And he alleadged in facto that he did deliver him the Debt not being satisfied And because the Consideration was to do a thing which was against the Law the opinion of the Court was that it was void and that the Plaintiffe should not have Judgment Pasch 12 Iacobi in the Kings Bench. 347. SHERLOE's Case SHerloe brought an Action of Assault and Battery and declared Quod eum the Defendant verberavit And did not shew certain nor alleadge precisely in his Declaration That the Defendant did beat him Exception was taken unto it For there is a difference betwixt a Declaration in an Ejectione Firme Debt and this Action for in those Actions such Declaration is good but not in this Action And to prove the same one Sheriffe and Bridges Case in 39 Eliz. was cited where such Declaration was adjudged void But yet the opinion of the Justices was That the Declaration was good enough notwithstanding the said Judgment in 39 Eliz. Pasch 12 Iacobi in the Kings Bench. 348. GRUBE's Case IT was moved in Arrest of Judgment upon issue joyned inter Mathiam Grub and in the Venire facias he was called Matheum Grub. And Cook Chief Justice said That the Venire facias was vitious but because that the Jury did appear upon the Habeas Corpora the Trial was well enough Pasch 12 Iacobi in the Kings Bench. 349. CROOK and AVERIN's Case CRook Merchant brought an Action upon the Case against Averine for speaking these words viz. Mr. Crook came into Cornwal with a blue Coat but now he hath gotten much wealth by trading with Pirats and by cosening by tale of Pilchers and by Extortion And Cook Chief Justice said That the Law giveth no favour to those verbal Actions and we see there is not any such Action brought in our old Law-books And therefore he said Words ought to be certain And he examined the words in this Case by themselves and said That the first words are not actionable because they are not material And the other words by trading with Pyrats are too general for an honest man might trade with a Pyrate not knowing him to be a Pyrate and so no damage might come to him But as to the other words he gave no opinion Pasch 12 Jacobi in the Kings Bench. 350. CLAYDON Sir JEROM HORSEY's Case CLaydon brought an Action upon the Case against Sir Jerom Horsey for erecting of a house in a certain place called Risborough Common and alleadged in certain That every one who had Common in Risborough pred c. and did not alleadge That the Common is in the Mannor of Risborough But he declared That there is such a Custome within the Mannor of Risborough And the opinion of the Court was That the Declaration was good because there is but one Risborough alleadged and therefore of necessity it must be meant de Manerio Pasch 12 Iacobi in the Kings Bench. 351. The CLOTHWORKERS of IPSWICH Case THe Masters and Wardens of the Clothworkers of Ipswich in the County of Suffolk brought an Action of Debt for 3l. 13s. 4d. against D. and declared That the King who now is had incorporated them by the same name c. And had granted unto them by Charter Quod nullus exerceat artem sive occupationem in aliqua shoppa domo sive camera infra villam predict of a Clothworker or Tailor nisi ante eos vel duos eorum probationem faceret quod Apprentic fuit per spacium 7 annorum per eos sive duos eorum sit approbat sub paena 3l. 13s. 4d. pro qualibet septimana qua exerceat predict artem contra hanc constitutionem And layed in facto That the Defendant had used the Trade of a Tailor for the space c. against c. The Defendant pleaded That he was retained in service with one Mr. Pennel Gen of Ipswich and had been an Apprentice for the space of seven years in tali loco c. And that he made garments for his said Master and his wife and their children infra c. quae quidem exercitio est eadem exercitio artis which is supposed by the Plaintiffs in their Declaration Upon which the Plaintiffs did demur in Law Goldsmith for the Plaintiffs That the Plea in Bar is void For every Plea in Bar ought to confesse and avoid traverse or deny that which is alleadged in the Plaintiffs Declaration But this Plea in Bar had not done any of them and therefore was void For the exercising of the Trade which he hath confessed in his Bar cannot be intended the same matter with which the Plaintiffs have charged him in their Declaration and therefore it is no good bar at all And to prove the same vide 14 H. 6. 2. 35 H. 6. 53. 12 H. 7. 24. 27 H. 8. 2. Sir Robert Hitcham for the Defendant And he held that the matter is well confessed and avoided because that usage which he hath confessed in the Bar is colourable the same usage with which the Plaintiffs have charged him in their Declaration As in a Writ of Maintenance the Defendant saith That he was of Councel with the party being a Serjeant at Law c. which is the same Maintenance which is supposed by the Plaintiffe vide 28 H. 6. 7. 12. 19 H.
make a mingling of their Offices Vi. 13 E. 4 10 E. 3. By Hill and Herle For Trials out of the Chancery the Chancery and Kings Bench are but as one Court and if the Record come not in duely as it should the Court was never well seised of the Record Ley Chief Justice The coming of the Writ to the hands of one or two of the Commissioners shall not stay the Commission but the receipt of the one of them is the receit of them all having notice of it and the others may joyn with him to whom the Commission is delivered So it is in all cases every one of the Commissioners are interessed therein upon notice and not he only to whom the Commission is delivered If one Justice of peace taketh a Recognizance and dieth before it be certified the Certiorari shall be directed to the other Justice to certifie it if it come to his hands and he may retorn the Recognizance and it shall not be directed to the Executors of the Iustice who have not the Recognizance for the Certiorari is but the hand for the Court to receive it for otherwise the King might lose the benefit of the Recognizance And in our Case the Sheriff by a special Commission hath Authority to take the Recognizance and to retorn it upon Record One may do part of the Office as to make and take the Recognizance and the other may retorn it but one cannot execute a thing in part and another in another part the taking of the Recognizance by the two Justices doth exclude the Sheriff from medling with the taking or making of it but it doth not hinder him but that he may retorn it well enough and the Writ or Commission is general Vicecomiti which may extend as well to the new Sheriff as to the old Sheriff The Case was adjourned for by two Iudges the Supplicavit and Recognizance were not well retorned by the new Sheriff but Ley Chief Justice was against them Quaere Trin. 21 Iacobi in the Kings Bench. 452. RANDAL and HARVEY's Case THe Case was Harvey in consideration that Brown might go at large who was arrested at the suit of Randal gave his word that Brown should pay the money at such a day certain and for non-payment of the money Randal brought his Action against Harvey and being at issue upon the promise it was found for the Plaintiff Yelverton moved in arrest of Iudgment that the arrest of Brown was not warrantable by Law and that being the consideration the Promise was void and he said A man cannot make another his Attorney to arrest another man without Deed neither can the Sheriff give Warrant to his Baylie to arrest another without a Deed sealed And in the principal case Randal gave one a VVarrant to T. being an Attorney to demand receive and recover money from Brown but it did not appear by the Declaration that the VVarrant was by Deed in writing George Crook said that it was no Exception For be the Arrest lawfull or unlawfull yet he said the consideration was good Randal gave to his Attornie Authority to receive demand and recover thereby he gave him Authority to arrest Brown because the arrest is incident to the Recoverie 2 R. 2. Grants One grants to another all the Fish in his Pond he may fish with Nets For when he giveth the principal the incidents do follow VVhen Brown had yieldded himself to be lawfully arrested and then Harvey in consideration that Brown might go at liberty made the promise the same was good The Declaration was That Randal gave Authority to T. being an Attorney to receive deliver and recover the Debt by force of which Letter of Attorney T. did arrest Brown and so in the Declaration it is shewed that the Warrant was a Letter of Attorney Yelverton 34 H. 6. In Debt upon a Recoverie in the 5 Ports If a man will declare and set forth a thing in particular if he faileth in any thing it overthroweth his Action But if a man alledge generally a Recoverie in the 5 Ports then the same is good enough I agree the Case of 9 E. 4. Where a man gives leave to another to lay Pipes of Lead through his Lands that he may dig the ground to lay them there because it is incident to it And I agree the Case of 2 R. 2. for there the one thing cannot be done without the other viz. the Fish cannot be taken without Nets but in this Case the partie might have come by his money by Outlawrie and so there needed no arresting of the partie Ley Chief Justice If he had declared debito modo arrestatus it had been generally good and it must be intended that the Arrest was by vertue of a Letter of Attorney For he alledges that he gave him Authority to recover and then he shall have and use the means to recover as to arrest the partie or to outlaw him Haughton Justice Things incident and accessary may be comprehended in the principal as to dig for to mend the Pipe 9 E. 4. Because he grants him leave to lay them in the ground and so he may dig and justifie the same for the amending of the pipes If A. Licence B. to hunt in his Park and to kill a Deer yet B. cannot carry away the Deer for that is not incident to the thing granted In this case the Declaration is not good for he ought to set forth that the VVarrant was by Deed in writing and yet one may plead a Judgment generally quod debito modo he recovered and the same is good but here in this case he ought to set forth and shew the VVarrant and Authority by which he was arrested but not so in the case of pleading of a Judgment because there it doth refer to matter of Record Dodderidge Justice The promise was to free him from the arrest and if the arrest was unlawfull then there was no consideration and so by consequent the promise was void It ought to be shewed that Brown was lawfully arrest and if the arrest had been only matter of inducement and no cause of the Action then it had been sufficient to have said debito modo arrestatus but in this case the arrest it self is material and the Plaintiff hath shewed that the arrest was per debitum legis Cursum by vertue of a VVarrant of Attorney and it doth not appear but that it was a Letter of Attorney to deliver Seisin and so because the Plaintiff hath not shewed the arrest to be lawfull there was no good consideration whereupon to ground the promise and so no cause of Action Yelverton took another Exception viz. That the Plaintiff doth not shew that the arrest was per breve Regis or how it was Chamberlain Justice If the partie had brought an Action of false Imprisonment this Plea had not been good and in this case there appeareth to be no good consideration for it doth not appear that it was a
lawfull arrest for no time is shewed nor no place nor how it was done Ley The Jury have found it to be debito modo and in this case the arrest is not in question by matter of Plea but by Declaration and the finding of the Jury hath made the same to be good Dodderidge Justice If A. be indebted to B. B may have either an Action upon the Case or an Action of Debt for the money but in an Action of Debt unless it be in London by the Custome Concessit solvere is no good Plea But in an Action upon the Case the Plaintiff may declare That whereas A. was indebted to him in a certain sum of money that Concessit solvere and there he needeth not to shew how he became indebted unto him as he ought to do in an Action of Debt Chamberlain Justice If a man be arrested upon a void arrest and another in consideration of setting him at liberty doth promise to pay the Debt there it is a thing Collateral and an Action will lie But if the arrest cometh in question then in that Case the Action will not lie but he may avoid it by special pleading for the arrest being unlawfull there is no consideration whereupon to ground the promise Yelverton If the Plaintiff had said in the Declaration That in consideration that he would forbear his Debt that he would pay c. there for not payment the Action would have been maintainable but in this case the consideration is the setting him at Liberty and so it is Collateral At another day Ley Chief Justice If I arrest a man generally and the party promise for the discharge of the arrest to give 20l. it is no good consideration if I do not shew that he had cause to arrest him For if the arrest be upon an ill ground the consideration is not good Haughton Justice To make it a lawfull arrest the partie ought to shew the Process the Letter of Attorney and the proceedings and an agreement afterwards made will not make the arrest good Legitimo debito modo arrestatus is too general for he ought to shew how he became indebted to him For if I be bounden to make unto I. S. a lawfull assurance or conveyance of such Lands it is too general for me to say that I have made him a lawfull assurance but I ought to shew what manner of assurance it is that the Court may judge whether it be a lawfull and good assurance or not In Mich. Term followinging 21 Jacobi It was adjudged That Judgment should be arrested Trin. 21 Jacobi in the Kings Bench. Intratur Mich. 19. Rot. 5â— 453 SEIGNIOR and WOLMER's Case IN an Action upon the Case upon an Assumpsit the Declaration was general that the Defendant Assumpsit to the Plaintiff and the Jury found that the promise was made to I. N. who Seignior the Plaintif sent and appointed ad componendum agreandum the Debt of Wolmer the Defendant It was argued That the promise made to the Servant was a promise to the Master Vi. â— E. 4. Where the sale of the Servant is the sale of the Master 8 H. 5. in trespas The Defendant said that the Prior of c. was seised c. and that such a one his Steward made a Demise unto him there it was ruled that he ought to have pleaded that the Prior did demise V. 27 H. 8. Jorden and Tatams Case which is express in the point Jorden brought an Action upon the Case against Tatam and declared that he did assume to him as the words of the book are The Evidence was That Tatam came in the absence of Jorden the husband and assumed to the wife of Jorden and our Case is a stronger Case then that for there the husband gave no authority to the wife to take such Assumpsit but in our Case he did authorize I. N. and it was adjudged that the agreement of the husband afterwards made the Assumpsit to be good to the husband But in our Case I. N. had authority to take the Assumpsit viz. Seignior sent I. N. ad componendum agreandum the Debt and Wolmer assumed to pay the money c. and I. N gave notice thereof to Seignior and he agreed unto Dodderidge Justice An Assumpsit to the Servant for the Master is good to the Master and an Assumpsit by the appointment of the Master of the Servant shall bind the Master and is his Assumpsit 27 Ass If my Baily of my Mannor buy cattel to stock my grounds I shall be chargeable in an Action of Debt and if my Baily sell corn or cattel I shall have an Action of Debt for the money For whatsoever comes within the compass of the servants service I shall be chargeable with and likewise shall have advantage of the same If a Servant selleth a horse with Warranty it is the sale and contract of the Master but it is the Warranty of the Servant unless the Master giveth him authority to warrant it for a Warranty is void which is not made and annexed to the contract but there it is the Warranty of the Servant and the Contract of the Master But if the Master do agree unto it after it shall be said that he did agree to it ab initio As where a Servant doth a disseisin to the use of his Master the Master not knowing of it and then the Servant makes a Lease for years and then the Master agrees the Master shall not avoid the Lease for years for now he is in by reason of his agreement ab initio When the Servant promiseth for the Master that the Master shall forbear to sue c. and shall by such a day deliver to the Defendant the Obligation c. and the Defendant promiseth to pay the money at such a day and the Master having notice thereof agreeth to it it is now the promise of the Master ab initio for it is included in his authority that he should agree compound c. and he hath power to make a promise Judgment in the principal Case was given for the Plaintiff Trin. 21 Jacobi in the Kings Bench. Intratur Pasch 18. Rot. 139. 454. GLEEDE and WALLIS Case A Writ of Error was brought to Reverse a Judgment given in the Court of Northampton in an Action upon the Case upon a Promise The Error which was assigned was because that it appeareth that the Action was brought before the Plaintiff had made request The Case was a Contract was made betwixt Gleede and Wallis and Wallis was to pay to Gleede 10l when Gleede should require him Gleede brought an Action in the said Court 1 Martii 16 Jacobi and the Request is laid to be 7 Martii 16 Jacobi following Where a Contract is made and no time is expressed for payment of the money If the partie bring his Action before he make his request he shall not have damages but if he maketh an actual request and the Defendant doth not
was not found and so the King was not entitled to rights and priviledges and by consequence so was not his Pattentee 2. It did not appear that the Councel of Lateran 15 Johannis did extend to these Orders which was said to have been created 17 E. 3. whereas indeed it was created in the time of Henry the 1. Regularly this priviledge is not transferrable for it is ratione Ordinis As when the King makes a Duke and gives to him possessions those possessions annexed to the Dukedom are not transferrable over but by special Act of Parliament 35 H. 6. 36. Moile There if there had been special words in the Act of Parliament it had been Frankalmoigne This Priviledge is transferred to the King by the Act of 32 H. 8. and that Statute requires no aid of Regular or Ecclesiastical persons Secondly the words are special And all other things of theirs This Case opposeth not the Bishop of Canterbury's Case C. 3 part For that refers to the Statute of 1 E. 6. which had not so large words The intent of an Act shall be taken largely and beneficially to inlarge the Kings possessions as the grants of the King shall be taken largely and beneficially for the King There is a difference betwixt this Statute of 32 H. 8. and the Statute of 27 H. 8. The copulative words of the Statute of 27 H. 8. are To have all Rights and Interests and Hereditaments C. 11. part 13. pro omnibus demandis c. there the demand shall extend to Temporal demand so All rights and Interest and Inheritance shall be construed All temporal rights c. But the Statute of 32 H. 8. is larger viz. Of what name and nature soever If by the words of the Statute of 31 H. 8. Priviledges Tythes had been given to the King without especial provision after made then what needed the special Clause after was the Objection which hath been made I answer The special Clause was necessary For in pleading otherwise he ought to have shewed what Priviledge and Discharge it was in particular and so the Clause was added for the case of pleading C. 9. part The Abbot of Strata Mercellos case there it is said That if a man plead to have such priviledges as such a one had he ought to shew in particular what those priviledges were But this provision in the Statute of 31 H. 8. was made for the benefit of pleading The Statute of 17 E. 2. which gave the Tythes to the Hospitalers give them by the word of Priviledges for they had their possessions as it were by a new purchase Cook Entries 450. there the Case much differs from this so then the general word Priviledges doth extend to Tythes 14 H. 8. 2. By a grant of All trees Apple-trees will not pass yet if it be of all trees cujuscunque generis naturae nominis aut qualitatis then they will pass C. 3. part 81. By grant of all goods Apparel will not pass Here are special words in the Statute cujuscunque naturae nominis c. Nominla sunt symboa rerum And then call them what you will they are given to the King and intended to be transferred to the King and so there needs no special provision for the discharge of the Tythes For to say that the Priory was of the Order of the Cistertians is sufficient Admit then that the King shall have the Tythes as I have argued he shall then his Pattentee shall have them It is a real discharge in the King and not a discharge in respect of his person only Priviledges of discharge may be transferred as well as Priviledges of profit Then the question further is Whether they of S. Johns of Jerusalem were Ecclesiastical They were Regular as appeareth by the Statute of 32 H. 8. for that saith that they shall be free from Obedience Trin. 8. Jacobi in the Common-Pleas Bowyers case Whore Cook Nichols Warburton and Winch did agree that they were Ecclesiastical Priests The Prior had Parsonages and none could have Parsonages but Ecclesiastical persons 3 E. 3. 11. They had Appropriations which could not be unto Lay-men 22 E. 4. 42. There a Writ of Annuity was brought against the Prior of S. Johns of Jerusalem and it was ruled there that he ought to be named Parson which proves that he was Ecclesiastical 26 H. 8. cap. 2. there it is said That he shall pay First-fruits as other Parsons which proves that he was Parson 42 E. 3. 22. there they are called Ecclesiastical 35 H. 6. 56. they were seised in the right of the Church Linwood lib. cap. 47. de Judiciis That they were Ecclesiastical It was objected that Knight-hood cannot be given to Ecclesiastical persons and they were Knights Popham once Chief Justice of this Court said That he had seen a Commission directed unto a Bishop to Knight all the Parsons within his Diocese and that was the cause that they were called Sir John Sir Thomas and so they continued to be called untill the Reign of Queen Elizabeth Jones and Dodderidge Justices They were Ecclesiastical persons although they were divided from the jurisdiction of the Bishop The Case was adjourned to be further argued Pasch 3 Caroli in the Kings Bench. 479. LANGLEY and STOTE's Case IN an Ejectione firme the Plaintiff declared of an Ejectment 26 Martii 23 Jacobi contra pacem dicti Domini Regis nunc which could not be because King James dyed the 27 of March and so it was not contra pacem Caroli Regis 8 H. 4. 21. An Appeal of Maheim was brought and the Plaintiff declared That he meyhemed in the time of the King that now is and the Writ did suppose the same to be in the time of King R. 2. And for that cause it was adjudged Quod nihil capiat per Breve Pasch 3 Caroli in the Kings Bench. 480. MUTLE and DOE's Case DEbt was brought upon a Bond aud the Plaintiff in his Declaration doth not say hic in Curio prolat It was holden by the Court That although it be in the election of the Defendant to demand Oyer of it yet the Plaintiff ought to shew it The Judgment also was entred Concessum est whereas it ought to have been Ideo consideratum est And for these causes the Judgment was reversed So was it adjudged also the same Term in this Court in Barret and Wheeler's Case Pasch 3 Caroli in the Kings Bench. 481. Serjeant HOSKIN's Case HE was Indicted for nor paving of the Kings high-way in the County of Middlesex in S. Johns street ante tenementaâ— sua And in the Indictment it was not shewed How he came chargeable to pay the same Nor was it shewed that he was seised of any house there nor that he dwelt there nor was it averred that he had any Tenement there The opinion of the Court was that the Indictment was incertain for it might be that his Lessee dwelt in the house and so the Lessee ought to have repaired it and