it may be against the Bayle otherwise it is Hill 4 Car. Com. Banc. Plummers Case IF a Recusant bring an action c. and the Defendant pleads that he is a Recusant Convict and then the Plaintiff conform which is certified under the Seal of the Bishop And upon that orders that the Defendant plead in chief and then the Plaintiff relapses and is convicted again The Defendant cannot plead indisabilitity again As it was adjudged by the Court. Sir John Halls Case SIr Iohn Halls case in a quare impedit It was given for the Plaintiff who was presented by the King to a Church void by Symony That it was apparently proved that the Plaintiff had a writ to the Bishop of Winchester who returns before the writ accepted scil Such a day which was after the Iudgement the Church was full by presentation out of the Court of Wards because that a livery was not sued These returns that the Church was full before the receipt of the writs are always ruled to be insufficient For the Bishop ought to execute the writ when it comes to him 9 Eliz. Dyer in a scire fac c. 18 E. 4. 7. The difference here is That the King presented If the presentee of one without title is admitted and instituted the Patron may bring a quare impedit with presentation for it is in vain for him to present when the Church is full But if a common person recover and had a writ to the Bishop if the Ordinary return that it is full before of his own presentment it is good As if one recover he may enter if he will without a writ of execution to the Sheriff And in this case the second presentation does not make mention of the other presentation or revoke it But if the Ordinary had returned an other presented by Symony under the great Seal And that the other in that was revoked that is good For it is an execution of the Iudgement may be pleaded in abate of the Writ But if this return should be allowed by this trick all the recoveries in a quare impedit should be to no purpose Harvey only present agreed that the Iudgement ought to be executed and that that is a new devise And if the presentment under the seal of the Court of wards was returned then the question would be whether the great Seal or this Seal should be preferred but the presentation is not returned Whereupon they two agreed That the Bishop should have a day to amend his return And not that a new writ should be taken against him Hill 4. Car. Com. Banc. Andrews against Hutton Hutton Farmer of a Mannor Andrews and other Churchardens libels against him for a tax for the reparation of the Church Henden moved for a prohibition because that first the libel was upon a custom that the lands should he charged for reparations which customs ought to be tryed at the Common law And secondly he said That the custom of that place is that houses and arrable Lands should be taxed only for the reparations of the Church and meadow and pasture should be charged with other taxes But the whole Court on the contrary First That although a libel is by a custom yet the other lands shall be dischargeable by the Common law But the usage is to allege a custom and also that houses are chargeable to the reparations of the Church as well as land And thirdly that a custom to discharge some lands is not good Wherefore a prohibition was granted Sir Iohn Halls case again IT was moved again and Henden endeavoured to maintain that the return was good And he said where the King had Iudgement upon the Statute of Symony The King may choose if he will have the Writ to the Bishop For if he present and the Bishop admits his Clerk it is a good performance of the Iudgement And admit that the King had a former title this title remains notwithstanding that Iudgement And it is not necessary to return it For if the title be returned it is not traversabe Henden If the return was that the Church was full by presentation of a stranger it is clearly void Richardson in Bennet and Stokes case there was a rule and adjudged that if a Clerk be admitted pendente lite ex praesentatione of a stranger who is not a party at all to the sute Yet such a plenarty returned is not a good return And upon superinstitution their titles ought to be tryed Yelv. The King presents one under the great seal of the Court of Wards this second presentation is not a revocation of the first but it is void Richardson And so is the second void because the King is not fully informed of his title but if he be then perhaps it would be otherwise Henley One is Patron and a Stranger presents who has not title by Symony all is now void But the King is not bound to present by Symony but may present as Patron Yelverton and Richardson The Bishop ought to obey the Writ of the King And when the Clerk is instituted that the incumbents may try their rights in trespass in Ejectione firm or otherwise the parson who recovered should be shut up Dawthorn against Sir Iohn Bullock IN a Replevin for taking of his goods and Cattel The cattel and goods were delivered in pawn to the Defendant for mony and the Plaintiff did not pay the money at the day yet in the absence of the Plaintiff coming with the Sheriff who replevyed them The Defendant avows for the cause aforesaid And Atthow demurred upon the avowry generally For that that it appeared that the Defendant had a special property in the goods and therefore he ought not to avow but justifie the same Richardson and Yelverton being only present awarded that judgement should be for the Defendant because that now by the Statute they may give Iudgement upon the Right and the Avowry is but a form upon which the Replevin is barred But he cannot have a returno habendo The Countesse of Purbecks Case HEnden moved for a prohibition for the Countesse of Purbeck who was censured in the High Commission Court for Adultery with Sir Robert Howard son to the Countesse of Suffolk and the sentence there was that she should be imprisoned without bayl or mainprise until she found security for to perform the sentence and she was fined 400 marks But Henden alleged that they had not power to inflict such punishment For the offence is spiritual and the punishment temporal And the High Commission had not power to impose a fine and imprison for Ecclesiastical causes For the liberty of the Subject is Precious And therefore the censure in the Ecclesiastical Court ought to be only by excommunication before the Statute of 1 Eliz. there was not any question of it as appears by Articuli Cler. And the Statute does not make alteration of it but only in the things there named Hil. 42 Eliz. Smiths Case
only upon the Land in possession but also the rights to the same the one in point of Giving The other in point of renouncing The Land in possession could be but in one that is in the Offenders and so it was given but the rights to the same Lands might be in sundry persons in the Offendor or in his Heirs or in Strangers Now when the Statute saith the King shall have the Land without saving the Rights of the Offendors or his Heirs or any claiming to their use Tenant in tayl discontinues and after disseiseth his Discontinuee and is attainted of Treason he forfeits his Estate gained by the Disseisin and also his right of Entayl for he cannot take benefit of his ancient Right against the King by force of the Statute of 26 H. 8. and 32 of H. 8. and this agrees with the reason and the rule in the Marquess of Winchesters Case for if the Traytor have right to a Strangers land that shall not be given to the King for the quiet of the Stranger being Possessor for the quiet of his possesion but such right shall be given to the King being Possessor for the quiet of his possession and the word Hereditament in the Statute 26 H. 8. are both sufficient and fit to carry such right in such Cases and no man will dispute but they are sufficient to save naked rights to the Lands of strangers therfore it is not for the count of words but because it is alleged it was not meant so it was said in Digbies Case and so hath Antiquity expounded it for the good of the Subject against the King and against the letter of the Law But can any man imagine that the Parliament that gave the Land to the King should leave a right in the Traytor in the same Land to defeaf him again of it since the Statute gives the right and the Land and this gives a forfeiture of all rights belonging to the Person attainted of Treason and their Heirs for the benefit of the Kings forfeiture is of so great importance that if it be not taken as large as I take it it is an avoiding of all the Statute even that 33 H. 8. cap. 20. for though they have the word Rights in both Statutes even that of 33. doth not include the right of Action to the Lands of Estrangers by an Equity against the Letter So for this time the Case was abruptly broken off by reason the King had sent for all the Iudges of every Bench. Springall against Tuttersbury IN Springall and Tuttersburies Case It was agreed by the Court If a verdict be given at a nisi prius and the Plaintiff or Defendant die after the beginning of the Term yet Iudgement shall be entred for that relates to the first day of the term Overalls Case ONe Overall was sued in London and for that that he was of the Common Bench a Writ of Privilege issued which is a Supersedeas and staid the Sute wholly and not removed the Cause And if the Plaintiff had cause of Action he ought to sue here And then by the course of the Court a Clark shall not put in bayl Foxes Case THe Lord Keeper in the Star-chamber cited one and Butchers Case to be adjudged 38 Eliz. An Vnder-Sheriff makes his Deputy for all matters except Executions and restrained him from medling with them And it was adjudged a void Exception So if it be agreed and covenanted between them that the Deputy should not meddle with matters of such a value It is a void Covenant And that was agreed by Richardson to be good Law Hil. 5 Car. Com. Banc. Overalls Case IT was agreed at another day in Overalls case by all the Clarks and Prothonotaries of the Court that the Course always was that if an Atturney or Clark be sued here by bill of Privilege he needs not put in bail But if he be sued by original and taken by a Capias as he may be if the Plaintiff wil Then he ought to put in bail quod nota MEmorandum that on Sunday morning in the next term ensuing which was the 24. day of Ianuary Sir Henry Yelverton puisne Iudge of the Common Bench dyed who before had been Attourney general to King Iames and afterwards incurring the displeasure of the King was displaced and censured in the Star-chamber and then he became afterwards a practicer again at the bar from whence he was advanced by King Charls to be a Iudge He was a man of profound knowledge and eloquence and for his life of great integrity and piety and his death was universally bewailed Termino Hill 5 Car. Com. Banc. Honora Cason against the Executor of her Husband HOnora Cason sues Edward Cason Executor of her Husband and declares by bill original in nature of debt pro rationabili parte bonorum in the Court of Mayor and Aldermen of London and alleges the custom of London to be That when the Citizens and Fréemen of London die their goods and chattels above the debts and necessary funeral expences ought to be divided into three parts and that the wife of the testator ought to have the one part and the Executors the second part to discharge Legacies and dispose at their discretion And the children of the Testator male or female which were not sufficiently provided for in the life of the Father to have notwithstanding the Legacies in the will the third part And the custom is that the Plaintiff in this action ought to bring into the Court an inventory and sue before the Mayor and Aldermen And that she had here brought an Inventory which amounted to 18000 l. so that her third part was 6000 l and demanded it of the Executor who unjustly detained c. And it was removed to the Common bench by writ of Privilege And now Hitcham Serjeant moved for a procedendo And the Court séemed to be of the opinion to grant it Because that the custom is that the sute ought to be before the Mayor and Aldermen and then if they retain the action here the custom would be overthrown But they agreed that a rationabile parte bonorum may be remanded here and that they may proceed upon it in this Court And that there be divers presidents to this purpose And they agreed that a rationabile parte bonorum is the original writ by the Common Law and not grounded upon the Statute of Magna Charta But that it does not lie but where such a custom is which custom they ought to extend to all the Province of York beyond Trent Richardson chief Iustice said that in the principal case The Plaintiff in London might have declared without alleging the custom As it is in 2 H. 4. Because that the custom is well known But otherwise Where custom ought to be shewed and where not where an action is upon the custom in a place where the custom does not extend There it ought to be shewn And afterwards at another
Sergeant Henden moved for a Prohibition for that that their Instructions are Whereas there be divers Books News and Tales spread abroad and Libells made by which the Subjects are abused and the Peace may be broken you shall proceed against such Persons till the Authors be found out and they be punished by fines imprisonments papers set on their breasts and the like And he said that those words are not accomtable at Common-law and therfore are not as they seem within their Instructions But admit that yet they have not power to give dammages to the Party Richardson said In the Star-Chamber libellous Letters that are spitefull and scandalous to defame any although that they bear not an Action at Common-law yet they are punishable there and also they give dammages to the Party wronged But there is difference betwéen the Star-Chamber and that c. Henden said that Magna Charta makes the difference Quod nullus liber homo capietur aut imprisonetur nisi secundum legem terrae So by the Common Law and their instructions they have not power to give damages to the party Richardson chief Iustice said that no prohibition should be granted for the Fine of the King for they have power in that Case without question and to the punishing in that matter And if they err in Iudgement for the Libellious Letter and adjudge it to be Libellious where it is not We cannot award a prohibition nor grant error But for the damages that Court differs from the Star-chamber for the Star-chamber had its power by its self and differs from the Common Law But that Court is by Commission and therefore they ought to follow their Instructions And therefore a prohibition as to the damages shall be granted And Yelverton also was of the same opinion but he said there was another clause in their Instructions And for that a prohibition as to the damages shall be granted Hutton and Harvey said That if the sute was by information than it is clear that damages cannot be given But it is by Bill so in nature of an Action as I conceive which concludes that they were damnified But it is now brought too late to grant a prohibition where the parties have admitted the action But a day was given to shew cause why a prohibition should not be granted quoad the damages And so they concluded for that time Note that it was said by the Court That if money be lent upon Interest and the Scrivener who makes the Obligation reserves more then 8. l. in the 100. l. That that is not an usurious Contract See the cause c. Eaton and Morrisâ—s Case EAton and Morris being reputed Churchwardens but they never took any Oath as the Office requires present a Feme Covert upon a Common report for Adultery c. And the husband and wife Libel against them in the Ecclesiastical Court for that defamation And when sentence was taken and ready to be given for them the Churchwardens appeal to the Arches and for that that that presentment cannot be proved but by one witness they sentenced the Baron and Feme And now Ward who that term was made a Serjeant by a special call moved for a prohibition but it was denied by the Court for they were Plaintiffs first And also it is a cause which this Court had not any Conusance of Marshes Case before MOre of Marshes Case which is before Richardson Hutton Harvey and Yelverton said That the consideration also is good For although that it be not expressed that the Plaintiff himself shewed the accounts yet it appears fully that they were upon the request of the wife viewed And it shall be intended by Common presumption that the Plaintiff himself shewed them for he had the custody of them and is owner of them And the Books of Merchants are their secrets and treasure and they will not shew them by their good will Now it is not like to the case of an Obligation for there the certainty of the debt was before and he was compellable to shew it But the certainty here cannot appear without great search and labour and there can be no compassion to shew their Books And by Hutton Iustice There is no question but if the promise had been made after the Sute commenced it haâ—… been good No question by Richardson and it is agreed by all That if the Defendent had required the Books to be brought to his house or to another place it should have been good And there is not any difference although the Books were shewen in the shop by the servant for he permitted his Books to be viewed c. And Yelverton said that Beechers Case and Banes Case is more infirm than this Case is And yet adjudged there to be good And so it was awarded that Iudgement should be entred for the Plaintiff Si non c. Of a Communication of Marriage A Communication between I.S. and A. was of the Marriage of I S. being possessed of a term for years and of certain goods promised to A. that if she would be married to him and they had issue a son that he should have the term If a Female that she should have the moyetie of the goods And after they intermarry and have issue B. a daughter The husband dies and B. brings an action upon the Case against the Administrator of I.S. By the Court she cannot bring the action unless as Administratrix of A. or in the name of A. And the Case of Stafford was recited Where there was a Communication between Stafford and a woman That if she would marry with him that Stafford would leave her at his death 100. l. And after the intermarriage and death of the husband in an action brought by the wife the question was whether the promise was extinguisht by the intermarriage And after grand disputes it was resolved that the intermarriage was but a suspension of the promise And so it was concluded Kitton against Walters KItton brought debt upon the Statute of 5. Eliz. cap. 9. for Perjury against Walters for an Action of Trespass for Battery was brought against him by I. S. and he pleaded not guilty and that the Defendant was brought as a witness And that he falsely and corruptedly deposed and did not speak voluntarily that the Plaintiff in the Trespass was wounded and beaten c. And that he could not labour for half a year c. And upon the general issue pleaded it was found for the Plaintiff and Hendon moved to have Iudgement But it was objected that the party grieved shall not have that Action for that he did not say voluntarie deposuit c. For although that he falsly deposed wherein voluntary is not but a conclusion and voluntas ought to be in the premisses and corruptive does not include that and so was the opinion of the whole Court And it was awarded that the Plaintiff nil capiat per breve A servant of a Bayliffs Case IT was awarded
have come to full age the fourth day after The Court agreed that one may be non-suited the Essoyn day and if he confess an Action that day it shall be good And thereupon Iudgement was given that by the relation the Statute should be avoided c. Crookes Case A Feme sole leases at the will of the Lessor and after the Feme takes an husband If by the taking of the Baron the will of the Feme be determined and it was thought not Fenne against Thomas Hil. 3 Car. Com. Banc. A Man inhabiting in the most remote part of England was arrosted eight times by Latitat and no Declaration is put in Banco Reg. And the Counsell prayed Costs for the Defendant The Prothonotary said that he shall not have Costs unless he come in person But Richardson said on the contrary and he shall have Costs for it appears that he had been put to travell and a day given to shew cause why the Costs shall not be given Spark against Spark SPark brought an Ejectione firmae against Spark for lands in Hawkschurch in the County of Dorset The Case was a Copy was leased for a year except one day and that was found in the Verdict to be warranted by the Custome The sole Question is if an Ejectione firmae lyes And by Hutton If Tenant at will makes a Lease for years an Ejectione firma lyes but if it be a Copy-hold for years an Ejectione firmae will not be maintained Deakins's Case IT was said at the Bar and not gain-sayed If a man perjure himself against two the one by himself cannot have an Action upon the Statute but they ought to joyn for he is not the only party grieved Bentons Case A Man Leases for life and afterwards Leases for years to commence after the death of the Lessee for life rendring Rent the Reversion is granted Tenant for life dyes Lessee for years does not attourn And it seemed That the reversion passes without Attournment And he shall have Debt or shall Avow Williams against Thirkill AN â—…ion of Debt was brought by Williams against Thirkill Executor of I. S. who pleads a Receipt against him of 300. l. over and above which non c. The Plaintiff replies that the receipt was by Covin And so they are at issue and it was found for the Plaintiff and judgement was entred de bonis Testatoris And it was said by the by in this Case That Debt by Paroll may be forgiven or discharged by Paroll Ploughman a Constables Case PLoughman a Constable suffers one who was arrested pro quadam felonia antea fact to Escape And because it is not shewed what Felony it was and when it was done for it may be it was done before the Generall Pardon the party was discharged Hobsons Case VPon an Indictment of Forcible Entry Quod ingress est unum Messuag inde existens liberum Tenement I. S. And because he does not say Adtunc existens and without that it cannot refer to the present time scilicet of the Indictment He was discharged Sir Thomas Holt against Sir Thomas Sandbach SIr Thomas Holt brought Trespass against Sir Thomas Sandbach quare vi armis Because whereas the Plaintiff had used time out of mind c. to have a Water-course by the Land of the Defendant So that the water run through the Land of the Defendant to the Land of the Plaintiff The Defendant he said had vi armis made a certain Bank in his own Land so that the water could not have his direct course as it was wont to have Harvey It séems to me that the Action does not lye For a man cannot have an action of Trespass against me vi armis for doing of a thing in my own Soyl. But Trespass vi armis lyes against a Stranger who comes upon the Land and takes away my Cattell And such like things but not in this Case But he may have an Assise of Nusance As in Case where one makes an House joyning to my House So that it darkens my House by the erection of a new House I may have an Assise of Nusance against him who does it But Crook was on the contrary But it séemed to Richardson that he shall have Trespass on his Case but not vi armis And to that which hath been said That if one build a House to the nusance of another upon his own Land That he to whom the nusance is done may have an Assise of Nusance that is true And also if he will he may pull and beat down such an House so built to his Nusance if he can do if upon his own Land But he cannot come upon the Land of the other where the Nusance is done to beat it down per que c. Hutton of the same opinion By which it was awarded that the Writ shall abate And he put to his Action upon the Case Hitcham moved a Case to the Iustices One I. by Indenture covenants with an other that he should pay him annually during his life 20 l. at the Feast of St. Michael or within 20 daies after 10 l. and at the Feast of our Lady or within 20 daies after 10 l. The Grantée before the 20 daies passe and after the Feast of our Lady dies If the Executors of the Grantee shall have the Rent or not And the Iustices Hutton being absent said That it was a good Case And said that the Executors shall not have it Because it is not at all due untill the 20th day be past Fawkners Case A Lease was made to one for 40 years the Lessee makes his Testament and by that devises it the term to I. S. for term of his life if he shall live untill the said term be expired And if he dies before the years expire then the remainder of the years to F. for term of his life and if he die before the term be expired the remainder of the years to the Churchwardens of S. I. If the remainder to the said Church shall be good or not was the Question Because that the Wardens of the Church are not coporate so that they may take by that Grant Hutton and Harvy said that the Remainder was not good to them And said that the first Remainder was not good Peters against Field A Bill obligatory was shewed to the Court in Debt brought upon it And in the end of the Bill were these words In witnesse whereof I have hereunto set my hand and he had writ his name and put to his Seal also And because no mention was made in the Bill of no Seal to be put to the Bill It was moved to the Iustices If the Bill be good or not And it was agreed by the whole Court that the Bill was good enough Tomlinsons Case A Parson makes a Lease for 21 years The Patron and Ordinary confirm his Estate for 7 years the Parson dies The Question is Whether that confirmation made the Lease good for 21
of the Demand cannot be made parcel of the Issue 31 Eliz. rot 1137. Com. Banc. Dennis Varneys Case There the Book was agreed If it be to be demanded generally it may be at any time if it be tunc petit otherwise For otherwise it would be a Rent-charge at one time and a Rent-seck at another And the Distress it self is the Demand As it is in Lucas Case If one be obliged to pay mony upon Demand The Action brought is a sufficient demand And Barkley Sergeant He shews in the Avowry that such a one was seised of 20 acres and grants a Rent out of them and others by the name of all his Lands in Rustock and Ollerton For that he said that Ollerton is not charged Because that it is not pleaded that he was seised of that But the whole Court on the contrary And that it is an usual manner of pleading And that it shall be intended that he was seised of Ollerton First the words are per scriptum c. he granted a Rent and then he pleads that per scriptum suum he gave a power to distreyn And then it shall be taken that it was not made by any other Deed and the Distress given by the second Deed shall not make the Rent a Rent-charge And he cited Buts Case Then if it be a Rent-seck and the Distress gives a nomine paenoe There ought to be an actual Demand and that upon the day as it appears by Maunds Case And Pilkintons Case 5 Rep. 5 Eliz. Dyer If it was a Rent-charge the Distress it self serves for a Demand As it was many times adjudged Secondly The words are If the Rent be in arrear any day of payment or 14 daies after The last instant of the 14th day is the legal time for demand of it And the words existent legitime petit ought to refer to the daies expressed immediately before As 39 H. 6. A man obliges that his Feoffees shall do such an Act si quisuerunt Those words shall have reference to the Feoffées And Dockwrays Case If a Man be obliged that his Children which he now hath so also existent Being words of the Present tence refer to the days now mentioned and otherwise there would be a great inconvenience For it cannot be intended the same tenant to be alwaies upon the Land Barrows Case 20 Eliz. A Feoffment upon Condition to re-enfeoff upon demand at such a place It cannot be demanded without notice to the Feossée For that that he shall not be compelled to be there alwaies expecting And the same inconvenience alwaies would follow If the demand should not be upon the day of payment by which c. Richardson If the Rent had béen granted out of 20 acres in Rustock and then he had granted by another Déed that he should destreyn in other Lands being in the same County or not and is the same That that is but a Rent-seck 10 Assise 21 Ass And the Distress is not but a penalty And if that Rent is granted by one Deed and the distress upon the Land by another Deed If it be not delivered at the same time then there shall be a Rent-charge and there shall be also a Rent-seck And when also it is said that ulterius he grants per scriptum suum and does not say praedict It shall be intended another Deed then without averment that it was delivered at the same time It shall be intended at another time But admit that it be a Rent-charge and that it issue out of Ollerton where the demand of it was Yet he ought to maintain that actually In Maunds Case The distress is a sufficient demand For it is not but to inable him to destreyn and that is where the demand is limitted generally But if a Rent be granted and if it be demanded of the person of the Gruntor he may destreyn Then there may be an actual demand that was adjudged As in the Court 15 Jac. Com. Banc. Iackson and Langfords Case and in one Armerys Case And in another upon the same point So if you will grant a Rent-charge demandable at a special and particular place If it was at another place than the Land charged Without doubt there ought to be an actual demand So if it be upon a special place from the Land charged or demanded for the distress ought to be pursued as the Grant is And that is upon such a demand But where it is restrained by the words of the Grant And the same Law is where you will limit the time of the demand If the Rent be granted payable at such a day and grants over that ad tunc being demanded there a legal and general demand will not serve But there ought to be an actual demand And also it is as much although not in express words for the sence and meaning carries it If it be arrear at such a day existent petit The demand ought to be at the day mentioned before If I be bound in Obligation the Condition to pay mony at such a day being demanded There ought to be a demand at the day of payment or there shall not be a forfeiture And now then there is not a demand at the time so no cause of distress And although the Verdict be found if it be collateral matter yet it will not help For when it appears upon the whole matter that there is not any Title to distreyn the Tryall will not help it And so Iudgement shall be given for the Plaintiff Hutton Harvy and Yelverton agreed That if it was a Rent-seck and the distress a penalty there ought to be an actuall demand at the time limited But in case of a Rent-charge although the demand is limited to be made upon parcell Yet they all held that a generall demand will serve And that shall be at any place at any time For Harvey said There is no oddes whether it is limited to be demanded generally or to be demanded upon Dale If it be material it ought to be observed in the one Case as well as in the other Stanleys Case IN one Stanleys Case in an Action of Battery Sir Thomas Crew moved for mitigating the dammages Where the Iudgement was given upon a non sum informatus and afterwards a Writ of enquiry of dammages But the Court said That in such Cases they never will alter the dammages And Crook said that he was once of Councel in an Action of Trespass pedibus ambulando in the Kings Bench in such a Case upon a Writ of enquiry of dammages 10 l. was given That he could never have a mitigation by the Court c. Outlary NOte it was said That an Outlary in the same term for error may be reversed in the Common Bench Or in any term if it be void upon any Statute As for want of Proclamations c. And an Outlary was reversed for that the Writ was praecipimus tibi where it should have been vobis to the Sheriffs of London
And for these faults and because it was Body for Body It was ruled that the Indictment was insufent Braces Case If a Feme sole Executrix of a term mary him in the Reversion and dies the term is not drowned but the Administration of it shall be committed Otherwise perhaps if she had purchased the Reversion And it was the Case of one Owen That if the Debtee mary the Debtor That the Debt is not gone but the Administrators of the Feme shall have it The Marquess of Winchesters Case THe Marquess of Winchester prayed a Prohibition and the surmise was that whereas the late Marquess his Father had made the three Lamberts his Executors which were his Bastards He also devised that they should sell as much of his Lauds as should amount to 100000 l. and does not limit any imployment of the mony inde proveniente And also that whereas by the Statute of 34 H. a man de non san memori is unable to make a Will of his Land And that the Marquess at the time of the making of the Will was not of san memori And it was held by the Court that although Land be not a testamentory thing whereof the Spiritual Court ought to intermeddle with Yet being conjoyned in the Will with the Goods they cannot do any thing with the one without the other Therefore a Prohibition shall be granted Because that for the non compos mentis it is more fit to be tryed in our Law And if cause be a Consultation shall be granted for part scil his Goods again And such a Prohibition was in Case of Lloyd against Lloyd Munday against Martin MUnday brought an Action upon the Case against Martin And declares That whereas at the request of the Defendant in November delivered to him and his Father 30 Kerseys for which the Defendant assumed to pay 40 l. to the Plaintiff The one half in hand and the other half a year after Vpon non â—…ssumpsit pleaded It was found by verdict that the delivery was made to the Defendant in August 31 next before the November mentioned in the Declaration The Question if that will maintain the count or not Ward That it will for the delivery in August is the delvery in November As upon payment of mony upon an Obligation before the day is a payment at the day And then if he does not pay it within a year after November he does not pay it with a year after August Richardson on the contrary For that cannot be intended the same promise For upon such a variance the Defendant may wage his Law And so it is if a man declares upon Debt of one day and the Déed bears date at an other day Also it is that the delivery was to the Defendant and his Father and it is found that it was to him only So that that cannot be intended to be the same Consideration Vpon another Cause upon the Declaration he cannot have Iudgement For it is in consideration quod deliberaâ—set which is in the Preter tence and therefore naught As 10 Eliz. Dyer 272. In consideration that he was bayl for his Servant the Defendant assumed Not good 37 38 Eliz. Between Gereny and Goteman in Consideration quod dedisset duas c. he promised to pay 10 l. at the day of his mariage Held no Consideration Crook To the Case of the variance of the date contained in the Deed. There it varies from that which is his warrant And the date in November cannot be the date in August Nor on the contrary The delivery raises the Consideration and the time is not material as to the Deliberaâ—set It was one Warthingtons Case That where in consideration that you will stand my bayl I will save you harmless A good Consideration Hutton For the delivery the time of the contract is not materially necessary to be shewn for certain But the day of the payment ought not to be mistaken as it is here For if the delivery was in November the payment ought to be in November too But it appears by verdict That the delivery was in August And then so the payment ought to be And then consequently the day of payment is mistaken Yelverton The Plaintiff cannot have Iudgement For then he might charge the Defendant again upon a delivery in August Atthowe If upon an Obligation the mony be paid before the day of payment It is a payment at the day if the Obligee dies not in the mean time But I do think that if he dies before that payment cannot be pleaded in an action of Debt brought by the Executors against him Sed adjournatur Sir Iohn Spencer against Scroggs SIr Iohn Spencer brought Debt against Scroggs who pleads per minas The Venire facâ—… was returned and the Iurors appear And the Array was challenged by the Defendant for Cosinage between the Sheriff and the Plaintiff Whereupon a new Venire fac was awarded to four Coroners who return the Venire fac and subscribe A. B. C. D. Coronatores And in the Habeas corpus A. B. C. D. only And Iudgement was given And upon that Error It was argued that does not lye First For that it is aided by the Statute of 18 Eliz. That no Iudgement shall be reversed after Iudgement for an insufficient return Also as it appears by 8 H. 6. Such a Return at the Common law made by the Sheriff shall be good although he was not called Sheriff But that Law was afterwards changed And only Sheriffs and Bayliffs of Franchises was provided for By which Coroners were not in Hutton The Statute of 18 Eliz. extends to insufficient matter of the Return But does not intend to toll the Statute of York He said also that he thought it was not requisite at the Common law for the Sheriff to put his name of Office upon the back of the Writ But he demanded how it might appear that they are Coroners if they are not named so Crook It hath been adjudged that Coroners ought to put their name of Office And their names are parcel of the Return So that defective insufficiency is remedied by the Statute of 18 Eliz. Richardson Without putting their names it does not appear that they are Coroners Luvered against Owen HE declares upon the Statute of E. 6. for tithes and an exception was taken For that that it was said tam pro dom rege quam pro se ipso But it was affirm'd to be good For the King is to have a Fine Hutton If an Action be brought upon the Statute de scandalis magnatum The Plaintiff may declare tam pro domino Rege quam pro se ipso And so upon the Statute of Hue and Cry It was objected that one Tomlins Case was adjudged to the contrary But that Case was Because that he demanded in this manner and the Statute when it says that he shall forfeit it shall be intended to him who had the loss So it could not be demanded for the King
And at length it was adjudged that the Declaration was good Harding against Turpin IT was agréed by Hutton If a Copyholder makes a lease for years to commence at Michaelmas it is a forfeiture presently None gainsaid it Hutchinson against Chester AN action upon the case was brought against Chester And declares how the Plaintiff was in doing of certain businesse for the Defendant The Defendant said to him Do it and I 'll repay you whatsoever you lay out And shews that he had expended 4 l. and does not shew in certain and particular circa quid And for that cause it was held naught Read against Eaglefield IN debt by Read against Eaglefield and others who were Sheriffs of Bristowe The case being that they being Sheriffs took the Plaintiff by a Capias ad satisfaciend and detained him in prison untill the party Defendant and now Plaintiff paid the money to the Sheriff It was held that that was contrary to his warranty which is ita quod habeat denarios hic in curia And for that he did not so he is chargeable to him that was in Execution Stone against Walsingham STone libels against Walsingham in the spiritual Court and he pleads an agréement that for five years he ought not to set forth his tithes but to pay for them 6 s. 8 d. upon which matter a prohibition was granted Richardson you ought not to have a prohibition A lease for tithes ought to be by deed but by way of contract it is good for a year only without deed Vpon the Book M. 26 H. 6. But for 4 or 5 years by parol Such an agreement is not good Richardson May a Parson bargain and sell his tithes happening 4 years after by parols Yelverton It had been so adjudged in many Cases in the Kings Bench and the difference is where it is by way of demise and where by discharge Hutton The reason why it is good for years is for that that the contract moves severally But by way of deuise between Parson and Parishioner it is not good And Weston and Biggs case where it was resolved If there was an agréement made between Parson and Parishioner for discharge for tithes for years it was good without deed otherwise if it be for life Davenport not Richardson Then for more than a year that contract is void And you cannot bargain and sell the profits of beasts which a man hath not in his possession now but for those which he hath in his possession he may sell any profits Quod concessum Intr. 4 Car. rot 670 or 870. Litman against West LItman brought an action upon the case against West for words And he declared he being an Attourney c. and colloquio habito between them concerning his office The Defendant spoke these words He is a Cozener and hath cozened me of 20 s. And Serjeant Henden objected that the words were not actionable For that that they are too general And although they had Communication of his Office As Attorny Yet when the words were general and might be applyed as well to other things as such as touch his place yet for that c. As if one says of an Attorney Thou art a Common Barrettor Is not actionable And it was adjudged where one said to a Wheeleright Thou art a Cousener and hast cousened me of a pair of Wheeles Is not actionable And Sir Wil. Fleetwoods Case One said of him He is a Cousener and hath consened me in entring the Kings Accounts So here he might cousen him of 20 s. twenty ways and not as Attorny Richardson said the words were actionable Some words spoken of some men would bear an Action although the same words spoken of another would not As the Case of an Attorny especially as the Case is laid here And he had spoken of him as an Attorny Then it ought to be taken that he was a Cousener in his profession If one said of an Attorny Thou art a Cousener and hast delivered cousening Bills c. If it had been laid here that he had been an Attorny for the Defendant It would be actionable And this Case is more strong than Birchleys Case in Coo. lib. 4. One said of Chomely Recorder of London That he could not hear but of one side of his head And that was adjudged actionable And that being spoken of an Attorney there it would bear an Action One said in the North Country That one was a Daffidowndilly and adjudged actionable Because that the word there used expresses an Ambidexter being a flower of party colour Hutton said That the action would lye In one Gardleys Case who was an Attorny One said of him he was his Attorny and he had cousened him So of a Goldsmith Thou hast consened me and sold me a Saphire for a Diamond These words are not actionable because that the Goldsmith himself might be deceived in the stone And here these words spoken of an Attorny cannot be otherwise but to disgrace him in his profession An action in the Kings Bench. Thou art a cousening Knave Coroner and adjudged actionable One said of a Lawyer He hath no more Law than an Horse an action lies for both are applyed to his profession Yelverton agreed that the Iury had found that the words were spoken of him as Attorny For they have found the words in the Kings Bench. The Case was An Inne-keeper and an other were in communication and he said to him No man comes to thy House but thou cousenest him And adjudged actionable And so Iudgement was given for the Plaintiff Middleton against Sir Iohn Shelly MIddleton recovers in Debt against Sir Iohn Shelly and had Execution And afterwards Sir Iohn purchases the Land of the Plaintiff And long after the Execution was sued by Elegit and that land extended But before Livery by any the Plaintiff dies Yet the Sheriff returns that he delivered the Land Hutton We will not credit that he is dead But you bring a Writ of error Yelverton agreed The return of the Sheriff Richardson the return of the Sheriff does not prejudice a third person although it concludes the parties And if the Execution was made if the party brings an Ejectione firm Whatsoever the Sheriff returnes his proceedings ought to be proved legal See if the Sheriff deliver possession where the partie is dead if any thing lies It was urged to have a writ of restitution But where the Sheriff gives possession contrary to the rule of the Court. Coventries case IN Coventries case before Ashley brought a Copy of the sentence given in the high commission Court which was that the parties shall be excommunicated and be fined 30 l. and imprisoned Whereupon he prayed a prohibition Richardson If they had gone but to excommunication they had been well Yelverton Iustice they have power by fine and imprisonment in some cases but here where the party grieved may be fined at Common law not For if the party be fined in the high Commission and be
contained in the Declaration That the Defendants were guilty before scil October Vpon which the Defendants demurre and Iudgement was given for the Plaintiff Although it was objected that the Iustification here by the Custom before had taken away the property And I shall be debarred in Detinue and so in Trover But the Court was of the contrary opinion That the Defendants Plea in barre here shall not be good without traverse as it is and therefore the time is not made material but any time before is sufficient Méer possession sufficeth to maintain a Trover Pasc 7. Car. Com. Banc. Eaglechildes Case FInch Sergeant said that 6 Car. in the Kings Bench it was ruled upon Bill of Exchange betwéen party and party who are not Merchants There cannot be a Declaration upon the Law of Merchants but there may be a Declaration upon the Assumpsit and give the acceptance of the Bill in Evidence Crompton against Waterford WAterford was sued in the Spiritual Court for saying these words of the Plaintiff she will turn tayl to tayl with any man intimating that she would be naught with any man And sentence was given for the Plaintiff Whereupon he appealed to the Delegates propter gravamen And the Delegates overruled it and assesse costs for the wrong appeal Then there was a prohibition granted because the words were idle words and not punishable in the Spiritual Court Hutton seemed That the costs taxed by the Delegates are not taken away by the Prohibition Richardson on the contrary For the principal is prohibited and the costs are incident And because that a prohibition stays all proceedings the costs are taken away If the costs are to be executed by the Delegates then the prohibition to them will help But if the costs are remanded to the inferiour Court as well as the cause then the prohibition to the Inferiour Court will help So quacunque via data the costs are to be discharged And the party if excommunicat be dissolved And so agreed by the Court. Alleston against Moor. ALleston an Attourney of this Court brought an action upon the Case against Moore for calling him cheating knave and it was not upon speaking of him as an Attourney And for that by the Court in arrest of judgement It is not actionable If he had said you cheat your Clients it would be actionable One said That my Lord Chief Baron cannot hear of one ear colloquio praehabito of his administration of Iustice And it wad adjudged actionable Otherwise it had been if they had had no discourse of his Iustice Trin. 7 Car. Com. Banc. Coxhead against Coxhead IN Debt upon an Obligation the Condition was to perform an Arbitrament and the Defendant pleads nullum fecere arbitrium The Plaintiff replies that they made such an arbitrament and recites it the Defendant rejoyns that the Condition was to make an arbitrament of all things in controversie and that other things were in controversie whereof no arbitrament was made The Plaintiff sur-rejoynes that the Defendant did not give notice of those upon which issue was taken and no place alleged where notice was given And that exception was moved in arrest of Iudgement And upon that Iudgement was stayed Trin. 7. Car. Com. Banc. NOte It was said by Richardson Chief Iustice If a man sends his servant to a Draper to buy cloath for his Master and makes not the contract in his own name That the Master shall be charged and not the Servant Which was not denied 11 E. 4.6 Tomlinsons Case IF an Executor is sued in the Ecclesiastical Court for a Legacy and the Executor pleads plene administravit a Prohibition shall not be granted if they will not admit that plea. For they ought to judge there if he had administred fully or not But upon suggestion that they did not reject any administration which our law allows A prohibition shall not be granted as Richardson said which was not denied by the whole Court Williams against Floyd WIlliams was Plaintiff by an English Bill to the Council of Marches against Floyd in the nature of Debt upon an Escape and there was a Latin Declaration upon an Escape turned into English because that the Defendant being Sheriff of Canarvan suffered one against whom the Plaintiff had a Iudgement being taken by capias utlegat to escape To his damage of 40 l. And by the whole Court a prohibition was granted Although that by their Instructions they had power of personal actions under 50 l. For this is intended a meer personal action As debt detinue c. But Debt upon a Iudgement or debt upon an escape or upon the 2 E. 6. for not setting forth of tithes an action upon 8 H. 6. or any other action upon matter of Record or Statute In such cases they have not Iurisdiction And the Defendant there might have pleaded nul teil record and then he might have proceeded further But the misdemeanour here in permitting the party to escape might have been punished there by Information Gee against Egan GEe an Attorney of this Court brought an Action upon the Case against Egan and declares that he was an Attorney for many years late past and still is and that he had taken the Oath of an Attorney to do no fraud nor deceit in his Office as Attorney And that colloquio habito et moto inter one Rise Brother in Law to the Plaintiff and the Defendant concerning the Office of the Plaintiff as an Attorney and concerning a Bill of Costs and Expences by the Plaintiff in defence of a Cause prosecuted by one Treddiman in the Common Bench against the Defendant laid out and expended The Defendant 1 Augusti 4 Car. spoke those words to Rise Your Brother and Mr. Treddiman have cheated me of a great deal of mony c. by which the Plaintiff is in danger to lose his Office And it was moved after verdict for the Plaintiff in arrest of Iudgement by Ayliff Because that here is not any certainty in the Declaration that the words were spoken of the Plaintiff as Attorney And then they are not actionable For he does not shew at what time the speech was of him as Attorney Richardson upon reading of the Record said It was true that no time of the speech is shewen neither is it after the speech shewen upon whom he spoke those words Which might help it Neither is it said afterwards that is to say primo die but primo die Augusti he spoke c. And if it can be intended that those words were spoken of the Plaintiff as Attorney That would inforce the words to bear an Action But if such words are generally spoken of an Attourney without speech of his Office they are not actionable For he may be a Cheater at dice or in a bagain c. And here non constat that the words were spoken of the Plaintiff as Attourney Secondly it does not appear that the Plaintiff was was an Attorney in the Cause but says
Fifthly that he retained one Steveson in one of the Chapels of ease who was a man of ill life and conversation scilicet an Adulterer and a Drunkard Sixthly that he did not catechise according to the Parish Canon but only brought many of Dr. Wilkinsons Catechisms for every of which he paid 2 d. and sold them to his Parishoners for 3 d. without any examination or instruction for their benefit And that he when any Commissions were directed to him to compel any person in his parish to do penance he exacted mony of them and so they were dismissed without inflicting any penalty upon them as their censure was And that he and his servants used divers menaces to his Parishioners and that he abused himself and disgrac'd his function by divers base labours scilicet He made mortar having a leathern a prou before him and he himseif took a tithe Pig out of the Pigsty and afterwards he himself gelded it And when he had divers presents sent him as by some flesh by some fish and by others ale he did not spend it in the invitation of his friends and neighbours or give it to the poor but he sold the flesh to Butchers and the ale to Alewives again And that he commanded his Curat to marry a couple in a private house without any licence and that he suffered divers to preach which peradventure had not any licence and which were suspected persons and of evil life It was said by Henden that they cannot by the Statute of primo Eliz. cap. 1. meddle with such matters of such a nature but only examine heresies and not things of that nature and that the High-Commissioners at Lambeth certified to them that they could not procéed in such things and advised them to dismiss it But they would not desist and the Iudges Richardson being absent granted a prohibition if cause were not shewed to the contrary Note it was said by the Iustices a discontinuance could not be after verdict Humbleton against Bucke THeophilus Humbleton was Plaintiff in an Assumpsit against Bucke and declares that whereas there was a controversie between one Palmer who pretended to be Lord of the soyl and the Inhabitants of such a Village concerning Common in ripa maritima which Palmer claimed to be his own soyl The Tenants claim common there and a liberty to cut grass and make hay of it and to carry it away Palmer incloses the soyl Humbleton enters upon the place enclosed and also takes the grass being one of the Tenants And Palmer brought a Trespass against him and then Bucke assumes to the Plaintiff in consideration of a Iugg of Beer and in consideration that the Plaintiff in the Trespass hanging against him would plead a Plea in maintenance of their title of Common he immediatly would pay to him the half of his expences or if he failed of that he would pay him forty pounds And further he said that he pleaded not guilty in that action of Trespass which was found for him and that he expended so much money the half of which the Defendant refused to pay to him c. The Defendant pleads non defendit sectam in maintenance of their Common which was found against him And Davenport moved in arrest of Iudgement because that he ought to have pleaded such a Plea by which the title of Common might come in question but when he pleads not guilty he disclaims the matter of Common And also the word immediatly is not to be taken so strictly that he should pay the money in the same instant c. But the Plaintiff must declare what costs he had expended and then he shall have reasonable time by the Statute to pay the money But Athowe answered that the verdict which was in the Kings Bench helps him For it was there found that that land was the Kings wast and that Palmer was not owner of the soyl and therefore for that his plea was good for the title of Common cannot come in question Richardson Chief Iustice said that that is not a maintenance of the title of Common against Palmer First he cannot give that verdict in evidence in a prescription for the Common and the maintenance by that Plea of not guilty is for the soyl and not for the Common and whoever is owner of the soyl the title of Common is not specially against Palmer but it is general against every one in the world And so was the opinion of Harvey and Crook And Crook said that although the verdict had found the Assumpsit and so admitted that that plea was for maintenance of the title yet that shall not bind us For if a verdict finds matter which is repugnant or a thing which cannot come in question it shall not bind us But by Iustice Yelverton it was said That because the Iury have found the Assumpsit they have admitted all the residue And for that we do not doubt of it no more than the Iury have decreed As in an Ejectione firm If they be at issue upon the collateral matter it shall be admitted that there was an ejectment and so it was adjudged But this cause was deferred to another time to be argued more c. Meridith Mady against Henry Osan aliis MEridith Mady brought debt against Henry Osan for that he and 5 others were bound to perform the Arbitrament of thrée elected by them and the Plaintiff concerning all tithes and all other matters of controversie between them and that they still and all the Parishioners should perform and stand to the award made c. And upon breach of the award made was the action brought For the award was that when any of the Parishioners clip their sheep they ought to give notice to Mady the Parson to the intent that he or his Servants may be there And the Defendant did not give notice c. The Defendant by rejoynder pleads that Allen and others that they were Deputies to receive the Tithe-wool and that they or one of them were present at the clipping and so they demur Athowe said that notice ought to be given to the Parson himself for perchance he would be there himself had he notice And for that the breach alleged is not answered And also he said that they or some of them were present and does not name him as he ought for he may come in issue c. Richardson If the Arbitriment was made for some things within the submission and some things without It is good for those things that are within and void for the residue And although the Parishioners did not submit yet it is good because the six are bound for them Hutton said that the Award for the notice is not good for it is not well assigned where the notice should be given And an Arbitrement ought to be reasonable but it is unreasonable that he ought to inquire Mady wheresoever he is to give him notice as Cook 77. Salmons Case Crook said that the Award is
for a Legacy and that upon the Statute of 23 H 8. cap. 9. And Henden said that a Prohibition might not be granted for two causes First The Statute is general That no person c. then there is a proviso That this Statute does not extend to any probate of Wills in the Prerogative Court Then a Legacy cannot be recovered in any other Court. For if a Will be proved there no inferiour Ordinary will meddle with that Will and alwaies they had the execution of all Wills proved there in that Court Secondly It is pretended that the party is cited out of a particular Iurisdiction But that is not a Iurisdiction within this Statute For no Iurisdiction is intended but where there is an Ordinary But in the Tower of London there is no Ordinary But it is but as a Lord of a Mannor who had probate of Wills which is but a lay Iurisdiction c. Thirdly There is no Ecclesiastical Iurisdiction there But Davenport replyed That although for the present time no Ecclesiastical Iurisdiction is executed there because the Lord is dead Yet Spiritual Iurisdiction is executed there Hutton said If there he cause de bonis notabilibus Then the Archbishop had the Prerogative and might cause the proving of the Will But it stood with reason That where an Executor is tyed to perform the Will which may be there sued and the property of sute ought to be there where there is cause of Prerogative Harvey If there be cause of Prerogative and proof of the Will in the Prerogative Court Yet in the inferiour Iurisdiction the party will be compelled to prove the Will also But by Crook and Hutton minus juste An Action of Battery AN Action of Battery is brought against two and one dies before tryall and it was entred upon the Roll But the Venire facias was awarded against both and dammages assest And by Yelverton it cannot be amended For it was not the Act of the Court but of the Iury So that now dammages cannot be severed For although he may have the entire dammages against which he will yet if they be severd you will then oust him of his Election Quod non fuit negatum A Prohibition IN a Motion for a Prohibition where the Ordinary would make distribution It was agréed Richardson being absent That if the Ordinary commits Administration to the Wife of the Intestate that he cannot revoke that But if he grant Administration to one as Prochein de Sank and another more near of Blood comes He may revoke And because the Administration being granted all the power of the Ordinary is determined and then he cannot make distribution And if the Administration be one time justly granted the Grantée had a just Interest which cannot be revoked And although it was urged that those Prohibitions were not granted untill of late time yet they say those things passed Sub silentio Yelverton They cannot grant Admistration before a division was made And by Crook and Harvey An Action upon the Case lyes against the Ordinary if he will not grant Administration where he ought And at an other day it was moved by Finch Recorder That such a Prohibition could not issue in one Davyes Case And Richardson said That because that that Case was a Case of Extremity For Davyes had not any thing or portion allotted him by his Father who was dead And his Mother who was Administratrix turned him out of her House without any maintenance stopped the Prohibition which was granted before And said that it was in the discretion of the Court to grant such a Prohibition or not But Harvey and Crook said secretly betwéen themselves that it was not in the discretion of the Court. Garton against Mellowes AN action of Battery was brought by Garton against Mellowes And the Plaintiff pleaded a Recovery by the same Plaintiff for the same Battery in the Kings Bench against another who joyned in the Battery And the Piaintiff replies Nul tiel Record Vpon which they were at issue and the Record was brought in at the day assigned And these variances were objected for to make it fail of a Record And first The award of the Dist jurat in the Kings Bench is Coram domino Rege and there it was Coram domino nuper rege But not allowed For the King died before the Plea there and then it ought to be so pleaded Secondly That in one Record the Plaintiff is Generosus in the other Armiger Brampston said That that was such a variance which could not be amended Dyer 173. One recovers in debt by the name of I. Cives and Sadler And the Defendant brought Error and removes the Record inter I. Civem Salter c. And it was rul'd that the Record was not well removed upon that Writ Dyer 178. Plo. 8. Vpon Nul tiel Record there was a variance in the day of the Return of the Exigent and in the place where the Outlary was pronounced And adjudged a variance which could not be mended And now here there cannot be an amendment because it is after tryall And by amendment there might be a cause of changeing the Plea For he took that Issue by reason of the variance and after verdict there cannot be an amendment Mich. 2 Jac. Kings Bench Tayler and Fosters Case In an Ejectione firm upon a Lease made 10 Iunii and upon not guilty pleaded it was found for the Plaintiff And in Error it was assigned for error that the Imparlance roll was 10 Iunii and Issue roll the 12 Iunii and it appeared there was a rasure And it was agréed that if it was after verdict it could not be amended Atthowe This variance is not substantiall And the cases put do not make to this case For Salter and Sadler are two severall Trades And it cannot be intended the same man for he may vary in his action as he pleases But the Court said nothing to that Exception Thirdly In the Record of Nisi prius there was another fault It was agréed that a Material variance cannot be amended Yelverton said That he might have new Execution For he pleaded a recovery and execution in Bar and that they came to take whereof he had failed For that it stood now as another battery For it does not appear by the Declaration of the Plaintiff c. Smith against Sacheverill AN Action of Wast is brought by Smith against Henry Sacheverill and declares Whereas Henry Sacheverill the Grandfather was seised of these Lands he levyed a Fine of them to the use of himself for life with power to make a Lease for three lives and after to Smith his son for his life the remainder to the first begotten son of Smith in tayle The Grandfather makes a Lease for three lives and dyes and Smith and his first begotten son bring this Action of Wast against the Lessee and they assigne their wast in killing red Deer in a Park and upon nul wast pleaded it was
upon twenty matters Crook Admitting that all the offence was committed after the pardon yet you may suggest it to be before Henden and Bramston That so it was Pas 50 Eliz. In one Prat and Husseys Ease One that had a benefice took another but was not inducted Yet that was the irregularity upon which he was deprived and a prohibition was prayed upon the general pardon And it was concluded That if the libel contained that the irregularity was before any pardon and it appears also that it continued after yet a prohibition shall be granted Crook the offence is layed 1621 1622 1623 c. in one or every of them Now for a prohibition there are two clauses in our case Although it be that the offence was before and part after pardon yet we ought to grant a prohibition for that which was before is involved 5 Iac. Conveys case He and his wife after the death of Sir Blunt were sued before the high Commissioners for that that his wife committed Adultery with Sir Richard Blunt and he himself was the Pander And a prohibition was granted for two causes The one for that Adultery was not inquirable there the other because it was pardoned And although the word Adultery be in their Commission yet that does not give them Iurisdiction They cannot meddle with Alimony was one Condiths case upon the Canons in 1 Iac. Which gives to the Parson jurisdiction to appoint the Clark of the Church There was a custom there that the Parish should appoint it and several Clarks being appointed they set several Psalmes in the Church to the disturbance of it And a prohibition was granted to the high Commissioners for medling with it Richardson objected divers things with much earnestness but so apparently contrary to Law that I have omitted it Yelverton said she ought not to put in security to obey the sentence For if it be averred that all was before the pardon then there was no cause of sentence and if no sentence then the prohibition ought to be for all Crook The sentence is to pay a fine and to make submission and to be imprisoned until she found security to obey the sentence That is void Richardson said That they had not any means to make the party to pay the fine and if she would pay it presently she might be discharged But by the other Iustices the High Commissioners cannot demand the sine But they may Estreat it into the Exchequer At another day it was said Sir Wil. Chamcer before the high Commissioners was by sentence fined and imprisoned and by the opinion of all the Iudges of England They may proceed by fine and imprisonment and his case was for Adultery Hutton 44 Eliz. It was resolved that they cannot impose a fine but for Heresies Schisms and Errours c. Richardson The words of the Statute are that the high Commissioners may proceed according to the tenour and effect of the Letters Patents of the King Yelverton The sentence is the fine and the penance and there is the end of the sentence and when it is said she shall be imprisoned until c. That is no part of the sentence If it was that she should pay a fine do pennance and should be imprisoned three months Then all should be the Sentence Richardson said that they may procéed against other things than Heresies and Schismes upon that Statute de primo For there are the words Abuses Contempts Offences and Enormities Hutton The words in that Statute shall have exposition according to the meaning of the first intent It was that they had Authority to punish the Bishops and Prelates for Errors and Schisms and the change of Religion For that that they did not regard the power of the Ordinary But they had incroached many other things And if those words include any thing they might punish anything whereof the Gcclesiastical Court had Authority As working upon Saints daies But there was a Case of one that was sentenced there for such a Cause And the Fine estreated And upon Argument in the Exchequer their proceedings adjudged void Richardson The word Enormity contains a thing of lesser nature For quicquid est contra regulam et normam Juris is Enormity And therefore in Trespass quare clausum fregit et alia enormia ei intulit But Yelverton The word ought to be intended of a grand offence For so in common acceptance it imports Harvey The Fine being pardoned all is pardoned Richardson said that they should procéed by excommunication and not by fine and imprisonment No more at this time was said in this Case Humlocks Case A Man makes a Lease for 21 years reserving 20 l. rent per annum payable at two daies and if he fayl of payment that it shall be lawfull to the Lessor to enter At the day of payment the Lessor came and demanded the Rent by these words I demand my half years rent And it was moved by Atthowe If that demand was sufficient for the Lessor Hutton and Yelverton seemed that it was sufficient For the thing that he demanded is enough certain and known Crook on the contrary For although it appears by the circumstances how much of the Rent he demanded Yet the words are not so plain as they ought to be For if a man makes a Lease for years reserving such a Rent as the antient Farmor was wont to pay from time to time to this day When the Lessor comes upon the Land and says to the Lessee Pay me my Rent that is not sufficient or good because it is not certain in Terms And yet it appears by the circumstances And when a man pleads a demand He shall shew the Lease and the Rent reserved and shall say That he demanded redditum praedictum And as I remember it was adjudged very lately That such a Demand shall be certain Hutton I hold a difference between such things which lye in notice of the person to whom the demand is made and where not For in a praecipe quod reddat if there be a recovery by default and the Tenant brings a desceit and by examination of the Summoners it appears That they came to the Land and summoned him in the Land but they do not shew to him at what day he ought to appear So the Lessee knows well enough that the Rent ought to be paid for it is certain by the Lease to which he is party and privy But Crook said in the Case that Hutton put If the Summoners had read the Writ upon the Land and had summoned him to appear at a day comprised in the Writ It had been certain enough And so in this Case if he had read the Indenture upon the Land and after demanded the Rent as afore it had been Without question it appears to me it should be good enough And so in our Case also Leech against Watkins IN Debt upon an Obligation The Condition was that if the Obligor and his Heirs did or suffered
three things were moved in arrest of Iudgement which Serjeant Barkely answered There was a covenant to enter into an obligation at Michaelmas and the Plaintiff shews that he entred before So he does not perform the consideration which he conceived to be a good performance For if a man be bound to doe an act or pay money at Michaelmas a payment before is good H. 7. 17. 2. pasc It is shewn that an action of Covenant was brought after And they say that upon his shewing covenant does not lie but debt but he said that the Plaintiff had his election here to have debt or covenant As in the Lord Cromwels case the words covenanted provided and agreed give advantage of a condition or covenant If a covenant had been sor 30 l. then debt only lyes But here it is to perform an agreement Thirdly that it appears within the declaration that the action of the case was 6 years before the action brought And so by the Statute of 21. Jac. the action does not lye I agree if the cause was 6 years before yet the breach was within the 6 years and that is the cause of action 6. rep 43. In a covenant there is the deed and the breach of the covenant and that is the cause of the action And therefore being matter in Deed an accord with satisfaction is a good plea to it 13. E. 4. Attaint is grounded upon matter of record but the false oath is the cause of it For that there also accord is a good plea So in our case the non performance by default was not at the time limitted which was before the 6 years but no action was brought against the Plaintiff untill within the six years And then he is not damnifyed untill within the six years 5 Rep. 24. Richardson For the two first exceptions he agreed with Barkley as to the third he said that there can be no action before the breach of the promise or covenant But the breach here is before the six years for the non performance of the agreement is a breach and a breach is a damnificationn In one Boughtons case the non payment is a damnification But all the question here was whether that ought to be pleaded but I conceive that it need not for by the Statute-law the action is taken away And it being a general law the court ought ex officio to taken notice of it For in that after verdict if it appears that there is no cause of action although the verdict be found for the Plaintiff he shall never have Iudgement And upon the matter that latches in time amounts to a release in law the proviso cannot ayd you For every man shall be intended without those disabilities for that that he would shew that he would have advantage of it And Crook of the same opinion for the reasons given before and said that although the Statute took away the Common law yet it is good law and done for the ease of the subject and for that shall be favoured as the Statute of limitations in all cases But he said the non performance was not a damnification before the action brought As if I be bound as for surety for A. who is bound to save me harmlesse Although he does not pay it at the day There is not a breach before the arrest or Iudgement For by the Iudgement the lands and goods are liable But for the arrest his body is troubled for that now the Scriveners put in such obligations that they save harmlesse the party and pay the money at the day But for the other matters in all he agreed and cited Richardson and Burroughs Case Where a payment before the day was adjudged a payment at the day Yelverton That is not found that there is any sufficient notice given to the Defendant by the Plaintiff of the agreement made which he ought to have And he agréed in omnibus with Richardson and said that Scriveners use things ex abundanti Richardson It is said habuit notitiam in the Declaration but does not say by whom Yet after verdict it shall be intended a good notice And although that Nichols had given the notice it is sufficient If there be a Lease for years upon condition that he doe not assign the other accepts the rent of the Afsignee before notice He shall not be bound by that acceptance before notice But if notice may be proved either by the Plaintiff or by any although it be by a meer stranger It is sufficient Yelverton denied that for he said That none but privies can give the notice of it as the case is Et adjournatur Denne and Sparks Case before RIchardson If a will be of lands and goods and that was the occasion of this will the revocation is only tryable at the Common Law But when the will is of goods only the occasion of it shall be tryed only in the Spiritual Court For it is incident to the probate of the will quod fuit concessum And he said that in the case before if the will be not revoked the devise is good at the time and the administration shall be granted as of his goods for the Law will not change the property of the residue after debts and legacies paid Crooke The case here is that the Testator makes his will of his lands and goods and devises the residue of his goods ut supra to his wise his Executrix who dies before probate Denne sues to be administrator as the goods of the first Testator and alleges revocation which because that his Proctor did not goe and swear that in fide Magistri sentence was given against him Vpon that he appeals in which there was the same Obligation and affirmed by the Oath of his Proctor Yet sentence was given against him And a prohibition ought to be granted for three reasons First For that the Will is of Lands and Goods and the occasion of that tryable here Secondly they offer injustice in giving the allegation Thirdly The Wife here dying before the probate the administration ought to be granted as of the goods of the Testator and not as of the wife And also they here would inforce Denne if he had the administration to take it cum testamento annex Which shall be an admittance by him that there was not any revocation Richardson for the first reason he agréed that the revocation shall be tryed by the common law But the goods here are only in question and all the usage and practice is that a prohibition shall be granted with a quoad the lands For the second That they will not allow the allegation If they will not pursue their rules and order of Iustice That is not a cause of a Prohibition but appeal for the third It is fit that there shall be an election if debts and Legacies are owing But it doth not appear here that there are any debts or Legacies to be paid but after Harvey agréed with Crook