as Servant to the Bishop of Durham Absque hoc that he was guilty at the Castle of York or any where else c. And this Case was long depending and the first point was if the Defendant had confessed any conversion for that is the ground of the action and ought to be traversed or else confessed and avoided It was agreed that the Conversion is the ground of the Action Brook 1 Mar. Trespass 121. and the Inducement ought to be such as contain sufficient matter with the Trespasse vide 9 E. 4 5. 19 H 6.30.22 Then it was agreed H. 6. 35. 8. that when one takes a Distresse and such an action is brought that is no plea for that is not any conversion vide 27 H. 8.22 Coke lib. 10. fol 46 47. Request and refusall to deliver is good evidence to prove conversion but if it be found specially it shall not be adjudged Conversion and Iudgment was given for the Plaintiff because the Defendant did not claim any property and did not answer to the point of the Action for a Distresse is no Conversion Hil. 15 Jac. Coble versus Allen. Norf. Trespasse COble brought an action of Trespasse against Allen for breaking his Close at Barningham and by the new Assignment divers parcels were assigned the Defendant as to part pleads that he was seised of an House and thirty acres of Land in Colby and prescribe to have a way over them to his Common in Barningham Prescription for a Way and no place to which c. Issue joyned upon the Prescription and for the other parcels prescribe that he and all those whose Estate he hath in the said house in Colby used to have for themselves and their Families one way for Pack-horses over the said other parcels of Land in Barningham unto the Kings high way leading to the City of Norwich And Issue was joyned upon these two Prescriptions and found for the Plaintiff But it was moved in Arrest of Iudgment that the Venue was from Barningham and Colby and that in the Plea there is not mention of any place where the Common lies and therefore there is not any tryall but it was adjudged that the tryall was good for though that the proper use of a way is to some end and that ought to be shewn yet if it be only that he had a way over the Closes of the new Assignment and no place or end therof is pleaded for what cause or to what other place and Issue is taken upon the Prescription and found the Prescription is good And another reason was there by Implication it is indifferent whether the way lies in B. or in another Town and by intendment rather it may be taken to lye in B. and then if by one intendment the tryall may be good it shall so be intended But when it appears that the tryall shall be in three Towns and the Ven fac is but in two this is not aided for it is a Mis-triall and there must be a Venire facias de novo but in this case no new Venice can be awarded and then it is but a Jeofaile for not pleading in which Town the way lies and then it is aloâ—â— and also unto the Kings high way may be taken that this Kings high way is contigue adjacent to these Closes where the way is by Prescription And for these reasons and causes Iudgment given for the Plaintiff Harding versus Bodman RObert Harding Plaintiff against Bodman Defendant Case in an action upon the Case recites that wheras the Plaintiff brought an action upon the Case against one Lenning for calling of him c. the Defendant upon the tryall being produced for the Defendant as a Witnesse gave evidence upon his Oath to the Iury Action upon the Case against one foâ—giving evidence that the Plaintiff was a common lyar and so recorded in the Star Chamber by reason of which Evidence though the Iury found for the Plaintiff yet by reason hereof they gave but small Damages to the Plaintiff And upon not guilty pleaded it was found for the Plaintiff and upon motion in Arrest of Iudgment it was adjudged that this is a new invention and that no action lies for it First because that it is impossible to be known whether the Iury gave greater or lesse Damages for that or not Also by this means every man which is produced as a Witnesse by one way or other may be subject to an action upon the Case and also by any thing which appears to the Court the Evidence was true for it was not averred that Revera that the Plaintiff was not a common lyar that he was not recorded for a common lyar in the Star Chamber And for these reasons the Plaintiff Nil capiat per breve c. Trin. 15 Jac. Rot. 1968. Speake versus Richards South HUgh Speake brought an action of Debt against Edward Richards Debt for 523 l 17 s 8 d and declare that Anthony Hall and Henry Paramour 22. June 13 Jac. became obliged to the Plaintiff by Recognizance in the Chancery in 2000 l and that they did not pay it wherupon the Plaintiff had two Sci. fac.'s to the Sheriff of Middlesex Debt for money returned levied by the Sheriff who returned Nihil wherupon Iudgment for the Plaintiff and a Levari facias awarded to the Sheriff of Southampton returnable 15 Mich. which Writ was delivered to the Defendant being then Sheriff to be executed The Defendant before the Return levied by vertue of the said Writ the said 523 l 17 s 8 d of the Lands and Chattels of the said Henry Paramour parcell of the said Debt and at 15 Mich. returned that he had levied the said 523 l 17 â— 8 d parcell c. which summ he had ready at the day to deliver to the Plaintiff in part of satisfaction c. And that the Defendant although often required therto refused to pay the said 523 l 17 s 8 d by cause wherof this action accrued nor brought it into Chancery and to have the parties c. The Defendant as to three hundred and eight pounds part therof pleaded Nil debet to two hundred and fifteen pounds seventeen shillings eight pence residue therof Actio non For he said that after the Writ directed and before the return viz. 31 Augusti 14 Jacobi the Defendant at Westminster paid it to the Plaintiff upon the receit wherof the same day the Plaintiff gave an Acquittance for the same which he pleads and therby acquitted and discharged the Defendant and demands Iudgment if against his own Deed of acquittance he shall be received to demand the said money wherupon the Plaintiff demurred And it was argued by Serjeant Richardson for the Plaintiff and by John Moore for the Defendant An exception was taken that he could not plead Nil debet because that it is a Debt upon Record for he is charged by the return He is not estoppled to plead payment
in a Garden then minutae decimae And it was agreed by the Court that it might have been so found that it should be Majores decimae and prâ—â—diall as if all the Profits of the Parsonage consist of such Tithes And so of other things which in their own nature are minutae may become majores if all the profit of the Parish consist therin As in some Countries a great part of the Land within the Parish is Hemp or Lime or Hops there they are great Tithes and so it may be of Wholl and Lambs Beddingfields Case Pasch 3 Jac. in the Kings Bench Beddingfeilds case Farmer to the Dean and Chapter of Norwich who had the Parsonage Impropriate and had used to have Tithes of Grain and Hay and the Vicar had the small Tithes And a Feild was planted with Saffron which contain forty acres And it was adjudged that the Tithes therof belong to the Vicar Potmans case There was a Case in this Court as it was vouched by Henden 3 Jac. between Potman a Knight and another And the question was for Hops in Kent and adjudged that they were great Tithes but as for Hops in Orchards or Gardens these were resolved to belong to the Vicar as Minutae decimae There was a Case in this Court for tithe of Weild which is used for Dying and that was in Kent and it was sown with the Corn and after the Corn is reaped the next year without any other manurance the said Land brings forth and produce Weild And that was a speciall Verdict whether the Vicar shall have the tithe of it or the Parson but one of the parties died before any Iudgment And if Tobacco he planted here yet the tithes therof are Minutae decimae And all these new things viz. Saffron Hops Wood c. if it doth not appear by materiall circumstances to the contrary shall be taken as Minutae decimae And so this case was adjudged for the Defendant Hil. 1 Car. Townley versus Steele FRancis Townley and three others the Executors of William Peacock brought a Writ of Ravishment of Ward against Richard Steele and Anne his Wife for the Ravishment of the body of Ralph Smith Cosin and Heir of Ralph Smith In Ravishment of Ward brought by Executors are Non-suited whether they shall pay costs and count of the Tenure by Knights-service in Ralph Smith of William Peacock and that Ralph Smith died the said Ralph his Cosin and Heir being within age and that William Peacock the Testator seised of the body and died possessed therof and made them his Executors and they being possessed of the said Ward the Marriage of whom belong to them the Defendants Rapuere illum abduxere And upon Not guilty pleaded the Iury was at Bar and the Plaintiffs after Evidence were Non-suited And whether the Defendants shall have costs in this case was the question upon the Statute of 23 H. 8. cap. 15. or by the Statute of 4 Jac. cap. 3. And it being argued by Davenport and Attho the Court this Term the chief Iustice being absent gave their opinions And Iustice Crook argued that they should not have costs and put many cases when Executors bring actions they shall not pay costs and so is Common Experience after the Statutes which is the best Interpreter of the Law And if it should be otherwise Executors would be discouraged to bring actions for the debts of their Testator And Iustice Harvy was of the same opinion but Iustice Yelverton and Hutton to the contrary And they agreed that in all actions brought by Executors upon Contracts Obligations or other things made to the Testator there shall be no costs for that is not within the Statute viz. Contracts or Specialties made to the Plaintiff or if an action be De bonis asportatis in the life of the Testator or upon any Tort supposed to be done not immediatly to the Plaintiff there shall be no costs because that the Statute gives not costs in these cases 20 Mariae Debt upon a Demise for years if the Plaintiff shall be Non-suited there shall be costs for it is upon Contract though in some sort reall But in this case though the Plaintiffs are named Executors and their Title is derived from their Testator yet the action is brought upon an immediate Tort done to themselves and it is within the very words of the Statute and this Statute which is to prevent Vexatious Suits shall be taken favourably If Executors have a Lease for years and they demise it rendring rent and for Rent arrear they bring an action it shall be in the Debet and Detinet and they shall pay cost if they be Non-suited and yet their Title is as Executors but it is founded upon their own Contract so if they bring an action of Trespasse for the taking of Goods which came to their possession which Goods were in truth tortiously taken by the Testator and he died possessed therof and they being Non-suited they shall pay costs And Executors in actions brought against them shall pay costs and if they have no Goods of the Testator it shall be De bonis propriis And vide that upon Contracts made by them or Rent arrear in their time the action shall be in the Debet and Detinet vide Coke lib 5 Hergraves case But when Debt in brought by Executors and recovery had and after a recovery an escape and Debt upon this escape this shall be in the Deticet only according to the first cause of action And this Ravishment of Ward is an action within the Statute of 23 H 8. and the Statute of Westminster â— gives no Damages and therfore costs by the Statute of Glocester cap 1. and the Statute of 4 Jac. inlarge the actions and not the persons Hil. 1 Car. Beverley versus Power VPon an Assembly this Term of all the Iustices at Serjeants Inne by vertue of an Order of the Star-chamber made the last Term at reading the Case was Iames Beverley was Plaintiff against Robert Power Pardon and Mary Beverley and others which Bill was exhibited Hil 16 Iac. and the Bill was for scandalous matter not examinable in this Court and for other matter which was examinable and Witnesses examined and published And then the 19. of Febr. 21 Iac. the generall Pardon is made by Parliament by which all Offences Contempts and Misdemeanors del 20. Decemb. before except such Offences contempts c whereof or for which any Suite or Bill within eight years before was exhibited into the Star-chamber and there remaining to be prosecuted this last day of this present Parliament And afterwards viz. Mich. 1 Caroli the Cause came to hearing at the Suit of the Defendant and upon the hearing Power was fined two hundred pounds and for the abuse and contempt to the Court for exhibiting the scandalous matter the Plaintiff was fined five hundred pounds and for damage to the Defendant five hundred marks And yet because of the difficulty
c. but at the time of taking was so To this it was answered That the Count chargeth not the Defendant absolutely with all the time but Diversis diebus vicibus And also he justifie for two weeks which is the same Trespasse Then upon the matter the question is if he which hath Estrayes or Waifes if he seise an Estray qui est ferox whether he may fetter such Estray It was agreed by the Court that when an Estray comes within a Mannor and walk there this is a Trespasse and the party in whose Land the Estray is Damage-feasant may chase him out of his ground Also it was agreed that untill the Lord or his Bayliff or Tithing-man seise the Estray that shall not be said an Estray but when the Lord seise than he hath the Commencement of a property therby and he is chargable against all others for the Trespasse which this Estray doth and if this Estray within the year estray out of the Mannor the Lord may chase back the Estray untill he be seised by another Lord which hath Estrays But if he be seised by another Lord then the first hath lost all his possibility of gaining the property and the other Lord ought to proclaim it de novo It was moved that if a Lord of a Mannor which hath Estrayes and hath seised an Estray suffer that Estray by negligent keeping to stray away and never can be found again the Owner may have an action upon the case of Trover and Conversion against the Lord Quare vide 44 E 14. there the Lord seised an Asse for an Estray he to whom the property did belong came and challenged the Estray the Lord may detain him untill he tender sufficient recompence for the Pasture vide purc 20 H 7. 1. by Vavisor and 39 E 3. 3. That the Owner cannot take an Estray untill he tender recompence likewise the Lord after seisin of the Estray if he took him not Damage-seasant may have Replevin and he ought to make him amends The Lord cannot work the Estray but may keep him in his Stable And if the Sheriff upon a Fieri facias fetter the Colt and after the Defendant redeem him for money he shall not have trespasse vide 6 E 3. 8. it is not alledged that the fettering was to any damage of the Estray vide 22 Ass 56. Entred Pasch 18 Jac. Rot. 650. Treherne versus Cleybrooke Debt IOhn Treherne brought an action of Debt against Cleybrooke and count of a Lease made by John Treherne Grand-father to the Plaintiff of Lands in S. Olives in Surrey and intituled himself by the Will of the Grand-father by which he devised the Lands to the Plaintiff in tail Devise the remainder over to Leonard Vpon Nil debet pleaded the Iury found specially scilicet the Devise of the Reversion in tail the remainder over to A. in tail the remainder of one Moyety of the Land to one Daughter in tail and the other Moyety to another with Proviso that for the raising of a Stock for John Treherne the Grand-child when he come to the age of one and twenty years or if he dies for the raising of a Stock for Leonard in like manner he willed that Edward Griffin and Anne his Wife shall take the profits and shall receive all the rent of the Land devised to John Treherne to their own use untill he come to the age of one and twenty years upon Condition and so as the said Edward Griffin and Anne shall within three months after the death of the Testator become bound to his Overseers in an Obligation with such penalty as the said Overseers shall think fit to pay to the said John or if he dye without Issue to the said Leonard within three months after he come of age such a summ the Condition to be drawn and devised by his Overseers And if Edward Griffin and his Wife refuse then the Overseers should receive the Rent and Profits to their proper use But the Condition appoint not to whom the Overseers shall be bound And made Edward Griffing and William Iremonger his Executors and I. and others Supervisors and died and that within fourteen daies after the death of the Testator the Will was read to the said Overseers And that they did not devise or draw within the time appointed any Obligation nor tendred any within that time and that notice therof was given to the Defendant and that the Rent was demanded and the Reversion claimed by the Plaintiff sed utrum c. Vpon the Argument of Serjeant Harris which argued for the Plaintiff and vouched 21 H. 6. 6. That when one made Executors and also Coadjutors the Coadjutors are not Executors and that it is a Condition precedent vide 14 H 8. 22. Wheelers case 46 E 3. 5. Truels case Coke lib 5. 127. Palmers case 4 E 3. 39. 11 H 4. 18. And because that in this case the said Edward Griffin and his Wife are to have benefit they ought to require them to nominate the summ But because it appears to the Court that this Action is founded upon a Contract in Law therfore it ought to be brought in Surrey as it was agreed in Ungle and Glovers case An 36 Eliz vide Coke lib 3. fol 23. Nota that the Iudgment is speciall for this cause and no costs upon the Statute of 23 H 8. for the Defendant for the Statute saies that upon a Contract made by the Plaintiff the Defendant shall have costs and yet upon this Statute if the Executor be non-suited or Verdict given against him he shall not pay costs Where costs shall not be against Executors by common experience alwaies after the Statute and yet he shall have costs if he recover And in this case the Plaintiff shall have costs if he recover and yet it seems upon this Iudgment the Defendant shall not have costs against him and especially because that they are expresse words in the Statute that the Defendant shall have costs after Non-suit or lawfull tryall against the Plaintiff and here is neither Non-suit nor lawfull tryall vide Statute 4 Jac cap. 3. seems to be full in all cases where the Plaintiff shall have his costs upon Non-suit or when the Verdict passe against him the Defendant shall have costs yet it hath been taken that it shall be intended in actions of Debt upon the Contract of the Plaintiff himself for Executors neither upon Verdict nor upon Non-suit shall pay any costs because that their actions are brought upon Debts or Contracts not made between them and the Defendants vide the Statute of Glocester cap 1. that where a man recover damages there also he shall have costs Hickson versus Hickson HIckson Demandant in Dower against Hickson They are at issue the Tenant offer to be essoined upon the Venire facias and for want of the Adjornment therof by the Demandant Essoin shall not be allowed in Dower the Tenant had procured a Non-suit and yet the
the said Francis was seised in Fee and before the time of the Trespasse supposed viz. 8 Jac in consideration of a Marriage to be between the said Francis his Son and the Plaintiff for her Ioynture made a Feoffment therof to the use of the said Francis and Rachel the Plaintiff and to the Heirs of the said Francis upon the body of the Plaintiff begotten the remainder to the Heirs of Francis in Fee and shewed the marriage and that by force of the Statute of 27 H 8. they were seised ut supra is limited Absque hoc that the aforesaid Francis Tayler the Father of the aforesaid Francis the Son died seised of the Tenements aforesaid with the Appurtenances de nova assignat in his Demesn as of Fee Modo forma prout praedictus defendens superius allegavit hoc paratus est verificare c. unde c. wherupon the Defendant demurred Vide 3 H 6 Brook Traverse 30 H 6 7. Brook Traverse 359. In Trespasse the Defendant plead his Freehold the Plaintiff plead the dying seised of his Father and that he is Heir and entred and that the Defendant disseised him the Defendant traversed the Disseisin and not the dying seised of his Father and good vide the said Book of 30 H 6. 7. by Prisot if I in Assise plead that my Father died seised in Fee that I entred as Son and Heir to him and was seised untill by R. disseised who enfeoffed the Plaintiff upon whom I entred here the Disseisin is not traversable but the dying seised vide 33 H 6. 59. Wangford put this case In Assise if the Defendant plead that his Father was seised and died seised and give colour to the Plaintiff the Plaintiff ought to traverse the dying seised and not the possession of the Father which is the cause of the dying seised Vide 30 H. 6. fol 4. Entry in nature of an Assise the Defendant plead that W. was seised in Fee and enfeoffed him and give colour the Plaintiff replies that W. was seised in jure Uxoris and that he had Issue and his Wife died and he was Tenant by the Curtesie and made a Feoffment sans ceo that W. was seised modo forma and Issue taken and there it is said that the Issue is well taken This case was adjudged for the Plaintiff because that no dying seised is pleaded so that it might be traversed but with a Sic scisitus obijt Also the matter only traversable here is the seisin in Fee modo forma for by the Replication Seisin joyntly with the Plaintiff and to the Heirs of the body of the said Francis with a Fee-simple in him is confessed and that is good with the Traverse Memorand That this Case was moved by Serjeant Hitcham Trin. 10 Car. And Serjeant Hedley moved for the Defendant and vouched 5 H 7. 7. and the Record was read and all the Court agreed that it was a good Traverse And that Iudgment should be given for the Plaintiff Pasch 10 Car. Dawe versus Palmer Case JOhn Dawe Plaintiff against William Palmer in an action upon the Case and count that wheras he was a Fuller and had used the Trade of Falling and therby acquired his livelyhood and was of good Credit Words c. The Defendant said of him Trust him not for he owes me a hundred pound and is not worth one Groat And at another day he said He is a Bankrupt Rogue And upon Not guilty pleaded the Iurors found for the Plaintiff and gave entire Damages And it was moved in Arrest of Iudgment that the first words were not actionable and then the Iury having given entire Damages the Plaintiff should not have Iudgment for any part vide Osbornes case Coke lib 10. But in this case after many debates it was resolved by the Court that the Plaintiff should have Iudgment For the first words are actionable at Common Law before the Statute Trust him not he is not worth one Groat Go not to buy of I.S. a Merchant for he will deceive you Of an Inne-keeper Go not to such an Inne for he is so poor that you can have no good entertainment Of an Atturney Use him not for â—e will cousen you All these words are actionable He will be a Bankrupt within seven daies And for the other words That he is a Bankrupt Rogue that is resolved Coke lib. 4. to be actionable And it was a Case Pasch 10 Car. in a Writ of Error brought in the Exchequer Chamber upon Iudgment given in the Kings Bench between Dunkin and Laycroft Dunkin and Laycroft for words spoken of a Merchant who had been at Hamborow in partibus transmarinis and there hâ—d used the Trade of a Merchant and Factor Thou innuendo the Plaintiff camest over from Hamborow a broken Merchant And adjudged actionable and so affirmed in the Exchequer Chamber And upon all these Authorities the Court gave Iudgment for the Plaintiff Mich. 10 Car. Deanes Case DEane being robbed in an Hundred in Kent brought an action upon the Statute of Hue and Cry and a speciall Verdict being found tâ—â— Dourt intended was If one be assaulted to be robbed in one Hundred Hue and Cry and he escape and flye into another Hundred and the Theeves instantly pursue him rob him there if the Hund. in which he was robbed should be solely charged And the opinion of the Court was that it should but upon reading the Record this appeared not to be the Case And the Court was informed that the Sheriffs had taken the Goods of one in execution who was not inhabiting within the Hundred at the time of the Robbery committed but came afterwards And the Court was of opinion that he was not chargable Mich. 10 Car. Knight versus Copping RObert Knight brought an action upon the case against Valentine Copping one of the Attorneys of this Court count Case That wheras one Edw. Loft had brought an action of debt for 30 l. against him And therupon such processe was that a non pros was entred costs of 30 s. assessed for the now Plaintiff An action of the case for â— entring Judgment after non pros the now Defendant being Attorney for the said Ed. Loft having notice therof unduly and maliciously procured a judgment to be entred for the said Ed. Loft against the now Plaintiff sued execution against him wherby he was taken and imprisoned untill he was delivered by a writ of Supersedeas The Defendant Protestando that there was no such Iudgment for the said Edward Loft against the said now Plaintiff nor that he was taken in Execution therupon for plea saith that there is not any Record of the said Non pros The Plaintiff replies that at the time of the said Iudgment entred for the said Edward Loft And when the now Plaintiff was taken in Execution and imprisoned therupon the said Iudgment of Non pros against the said Edw. L. and
the Award of Costs were in full force and effect But that afterwards viz. such a time as well the said Iudgment de non pros as the said Iudgment of thirty pounds Debt against the now Plaintiff were evacuated wherupon the Defendant demurred And it having been often debated by Hitcham for the Defendant and Henden for the Plaintiff And now upon Oyer of the Record and of the Iudgment the Court gave Iudgment for the Plaintiff And the Lord Finch said that this action upon the case is grounded upon two misdemeanours 1. The procurement of the said Iudgment for Edw. L. after a Non pros entred for the Defendant And though the Iudgment was erroneous yet the now Plaintiff was vexed and imprisoned therby which indeed is the cause of this action 2. The taking therof unlawfully when the first Iudgment de non pros was in force and the Plea of Nil tiel Record go only to one of the Causes And admitting that there was never a Iudgment de non pros but that the Defendant had unlawfully procured a Iudgment and taken Execution therupon and procured the Plaintiff to be taken in Execution and Imprisoned this is cause of action And to that he hath not answered and therfore he ought to have pleaded Not guilty to that which he takes by protestation Iudgment pro quaerente Pasch 11 Car. Baker versus Hucking Adjudged B. Rs. Tenant in tail and he in Reversion make a I. case Pro ut aut vic TEnant in tail and he in Reversion joyn by Deed in a Lease for life he in Reversion devise the Land by his Will to one in Fee and dieth Tenant in tail dies without Issue and the Heir of him in Reversion and the Devises claim the Land And the sole question is if this Lease be a Discontinuance and it was adjudged a Discontinuance and then the Devise void for he had not a Reversion And the difference was taken when Tenant for life and he in Reversion joyn in a Lease by Deed for without Deed it is first a Surrender Discontinuance and then the Lease or Feoffment of him in Reversion it shall be the Lease of Tenant for life so long as he live and after the Lease of him in Reversion and yet they shall joyn in a Writ of Wast And in this case there is no question but if the Lease had been made solely by Tenant in tail that then it were a Discontinuance and the joyning of him in Reversion alters it not for that amounts to nothing but as a Confirmation and is not like to Bredons case Coke lib 1. fol 76. Where Tenant for life and he in remainder in tail levy a Fine for every one there passeth that which lawfully he may And upon Argument it was adjudged that it was a Discontinuance and not the Lease of him in Reversion but his Confirmation Iustice Crooke differed in opinion Mich. 11 Car. Lashbrookes Case Somerset LEwes Lashbrook an Attorney of this Court brought an action of Trespasse against I. S. for entring into his house and breaking his Close And in the new Assignment he alledged the Trespasse to be in a house called the Entry and in a house called the Kitchin and in his Garden and in one Close called the Court. The Defendant as to the force c. and to all besides the Entry plead Not guilty And as to his entry into the Court and Kitchin A Warrant to four and two of them execute it and the Tenements aforesaid of the new Assignment he plead that he had brought an action against a woman for Trespasse and had so proceeded that he recovered and had execution directed to the Sheriff of Somersetshire and therupon a Warrant directed to four speciall Bayliffs to arrest the said Woman and two of them at Minehead in the County of Somersetshire arrested her and carried her to the house of the Plaintiff in Minehead being a Common Inn and the Defendant entred into the said houses called the Entry and Kitchin and the Tenements aforesaid of the new Assignment to speak to the Bayliffs and to warn them to keep her safe And as soon as he could he returned wherupon the Plaintiff demurred And now Henden took two Exceptions the first was 1. That the Defendant had not pleaded to all the Closes but that was over-ruled for he justified in the tenements aforesaid of the new Assignment 2. The second was that the Warrant to the Bayliffs was to all and not Conjunctim and Divisim and therfore it should be by all and not by two only To that it was answered and resolved that when a Sheriff makes such a Warrant which is for the Execution of Iustice that may be by any of them for it is Pro bono publico And the very Case was adjudged 45 Eliz between King Hebbs Coke Littleton 181. b. And Iudgment was given for the Defendant Hil. 11 Car. Davies Case Hereford DAvies an Attorney of this Court brought an action upon the case for these words If I list I can prove him Perjured Words And the opinion of the Court was that they were not actionable for there is not any Affirmative that he was perjured but a thing which is Arbitrary and saies not that he would do it Iudgment pro Defend Mich. 7 Car. Rot. 1097. Alston versus Andrew Suff. Pâ—ter Alston Executor of Peter Alston brought an action of Debt upon an Obligation of a hundred and twenty pounds against William Andrew The Obligor and the Obligee make the same person Executor and Edward Andrew and count That the Defendants and one Francis A. became obliged to the Testator c. and that they did not pay it is the said Testator in his life nor to the now Plaintiff and one Francis Andrew Co-executor with the Plaintiff who is summoned and the Plaintiff admits to prosecute alone without the same Francis c. The Defendants demand Oyer of the Obligation which is entred in haec verba and plead that Francis A. in the said Writing named after the making therof made the said Francis Andrew and Barb. A. his Executors and died And that the said Francis A. accepted the Burthen of the Testament And after the said Peter Alston the Testator made his will and Constituted the Plaintiff and the said Francis his Executors and died Et hoc paratus est verificare unde c. wherupon the Plaintiff demur Trugeon and Meron Mich 2 Jac. Rot. 2663. Garret Trugeon Plaintiff against one Anthony Meron and others the Administrators of Benjamin Scrivin upon a single Bill The Defendants demand Oyer of the Bill wherby it appears that one John Simcocks was obliged to the said Trugeon joyntly and severally with the said Scrivin Quibus lectis auditis the Defendants sayd that the said Simcocks died intestate and that the Administration of his Goods was granted to the now Plaintiff who accepted the Burthen of the Administration and Administred the Plaintiff demurred
of forty pounds And adjudged that no action lay vide Coke lib 10 fol 130. in Osbornes Case Thou art an arrant Knave a Cousener and a Traytor Action lies only for the word Traytor and yet all being spoken at one time aggravate and Damages shall be intended to be given only for these words which are actionable vide ut supra fol 131. if the words be alledged as spoken at severall times and as severall causes of actions there if the Damages be entire the Plaintiff shall not have Iudgment if any of the words do not bear action Stanley and Buddens case And other cases were cited that Cousenage is not actionable And Mich 40 Eliz Stanley and Buddens or Boswels case there an Attorney brought an action of the case for these words Thou art a cousening Knave and gettest thy living by Extortion and didst cousen one Pigeon in a Bill of Costs of ten pounds Adjudged that the last words were actionable This case was adjudged for the Plaintiff but I was absent in Chancery and heard not their reasons for it was doubtfull Hil. 17 Jac. Empson versus Bathurst Debt FRancis Empson brought an action of Debt upon an Obligation against George Bathurst the Defendant pleaded the Statute of 23 H. 6. That an Obligation taken Colore officii of any one in their Custody Obligation voided by the Statute 23 H. 8. with any other Condition then for appearance at the day mentioned in the Processe shall be void And shewed that an Extent issued out of the Chancery to extend the Land of Robert Leigh upon a Statute Staple of twelve thousand pounds in which he was obliged to the Plaintiff And that Anthony Thirrold was Sheriff and Charles Empson was under Sheriff and shewn an Extent of the Land returned and before any Liberate it was agreed that the Defendant should pay to the under Sheriff two and thirty pounds ten shillings and that he should be bound to the Plaintiff his Brother for the security therof to the use of the said Charles and therupon he entred into the said Obligation which by the said Statute is void the Plaintiff replyed and shewed that by the execution of the Extent he agreed to pay him the said two and thirty pounds ten shilling and pleaded the Statute 29 Eliz cap. 4. wherupon the Defendant demurred And it was adjudged against the Plaintiff Extortion for this Obligation is extortion and Colore officii and void by the Commen Law Extortion is when any one Colore officii extorquet feodum non debitum plus quam debitum aut ante quam debitum vide Dive and Maringhams case an Obligation made by Extortion is against Common Law for it is as Robbery vide Coke lib 10. fol 100. Dyer 144. And in this case the opinion of the Court was that no Fee is due to the Sheriff by the Statute of 29 Eliz. cap 4. because the Fee is not due untill execution Copulative extent and delivered in execution if it were a Statute-Merchant in which is a Liberate included then the Fee is due Also it was agreed that by the Statute the Sheriff ought to have six pence in the pound where the summ exceed a hundred pounds for all and not twelve pence in the pound Mich. 20 Jac. Bullen versus Gervis RObert Bullen brought an action of Debt for 12 l. upon an Obligation against William Gervis Administrator of Owen Godfrey Debt It is no plea for the Administrator to say the Intestate died outlawed Young and Pigot The Defendant pleaded that the Intestate was outlawed at the Suit of Francis Murrell after Iudgment and pleaded it specially and being so Outlawed died and that Outlawry is in full force Iudgment si Action wherupon the Plaintiff demurred 8 E. 4. 6. There by Littleton between Young and Pigot in an action of Debt against Executors it was holden a good plea to say that their Testator was Outlawed for they are charged to the King for the Goods Genny said that the plea amount only to this that they have not any Goods and so answer argumentative And 21 E. 3. 5. By Brian in a Writ of Debt brought against Executors it is a good plea to say that their Testator was Outlawed sans luy intitle 36 H. 6. 27. By Prisot in Debt against one as Executor of Jane the Defendant said that the said Jane was his Wife and demand Iudgment si action and it seems this is no Plea because that a Feme Covert may have many things which the Husband shall not have as Choses in action and she may make Executors if the Baron agree And Prisot said Sir It seems to me that it is no good plea for an Executor to say that his Testator died Outlawed Cansa qua supra Quare cur hona materia Vpon the reading of the Record it seems that it is no plea for it is only by Implication and that may be given in evidence Also the Executor or Administrator may have divers things which are not forfeitable to the King as if the Testator had Mortgaged his Land upon Condition that if the Mortgagee pay not at such a day to him his Executors or his Heirs a hundred pounds that then it shall be lawfull for him or his Heirs to re-enter and after and before the day the Testator is outlawed and makes his Executors and dies and at the day the Mortgagee pay the money to the Executors that is Assets and not forfeited is the King So if Tenant for life of a Rent be outlawed and the Rent arrear and makes his Executors and die this arrearage is due to the Executor and is Assets and not forfeited for the Rent was a Free-hold for which during his life no action of Debt lay and these arrearages recoverable by the Executors are Assets Also if this should be a good plea which is only by Implication he might therby prevent the Plaintiff of his recovery Also though choses in action are by information in the Exchequer recoverable yet if the Executor bring a Scire facias upon the Iudgment he shall recover and shall be accountable to the King therfore and the Debtors of the Intestate though he was outlawed may pay the debts to him and his release is a good discharge to them Also it was agreed that an Executor or an Administrator might bring a Writ for the reversall of the Outlawry and the Outlawry is not a Bar to him Woolley versus Bradwell Trin. 37 Eliz. Rot. 2954. And one case was vouched by Attho which was adjudged upon the like plea in this Court Trin 37 Eliz Rot 2954. Woolley against Bradwell and his Wife Executors of Sir Thomas Mannord and the matter depended a year and was argued and adjudged that it was no plea for it is but by argument and so being Serjeant Hobart said this Argument ought to be infallible also this is the matter and not the form for in this case the Demurrer was generall and the Book of
are not Affirmative or Positive but a supposition only as if he had said Nowels case I will indite him for such a matter it was vouched to be adjudged 51 Eliz. in Nowels case that to say of an Attornaâ—â— That he was Cooped for forging Writs maintain an action And 14 Eliz. He is infected of the Robbery and he smelleth of the Robbary adjudged actionable In balls case There is never a Purse cut in Northamptonshire but Ball hath a part of it will not bear action But the Court would not declare their opinion Quia sub spe Concordiae Griggs Case GRigg which is the Examiner at Chester preferred there this Bill in the Chancery vocat the Exchequer Prohibition â—i Chester against one which inhabite within the same County and another which inhabite in London being executors to one to whom the said Grigg was indebted by Obligation which Obligation was put in suit in the Court of Common Pleas and there proceed to processe before the Bill exhibited and the Bill concern equity of an Agreement that the Testator had promised that one Robert Grigg should assign a lease of Tithes to the Plaintiff in consideration of his entry into the said Obligation and if he could not procure it that then the Obligation should not be prejudiciall to him and he which was distributing in Chester answered therto And an Order was made by Sir Thomas Ireland Vice-Chamberlain that Processe should be awarded to him which dwelleth in London And an Inquisition was granted to stay the proceedings at Common Law And afterwards upon the motion of Serjeant Hitcharâ— Sir Thomas Ireland was in Court and shew all that he could to maintain the Iurisdiction viz. That the Contract was made in the County Palatine and that the priviledge pursued the Plaintiff and ipse qui est reus non potest eligere c. Yet it was resembled to ancient Demesn and Guildable And by Lord Hobart he which inhabit at Doveâ— by this way may be inforced to come and answer to a Bill in Chester which would be infinite trouble and the matter is transitory And it was resolved that the Court of Chester had not power in this case but it belonged to the Chancery of England And a Prohibition was granted Hil. 20 Jac. ONe case was in the Kings Bench viz. Trespasse Baron and Feme brought in action of Trespasse Quare clausum fregit Trespasse by Baron and Feme for breaking the Close of the Baron for the Battery of the Wife and for Battery of the Feme the Defendant pleaded a License to enter into the Close made by the Baron and not guilty as to the Battery And the Court was moved in Arrest of Iudgment because the Husband and Writ could not ioyn for the weaking of the Close of the Baron the Writ shall abate for all But the Lord chief Iustice and Iustice Dodderidge were of opinion that the Plaintiff should have Iudgment And it seems that the Law is clear accordingly vide 9 E 4. 51. Trespasse by the Husband and Wife for the Battery of them both the Iury found so much for the Battery of the Husband and so much for the Battery of the Wife and so Damages assessed severally because the Wife could not soon with the Husband in an action for the Battery of the Husband for that part the Writ shall abate and for the Battery of the Wife they shall recover for for that they ought or joyn in an action vide 46 E 3. 3. Baron and Feme brought Trespasse for the Battery and Imprisonment of the Wife and the Writ was ad damnum ipsorum and yet good vide 9 H 7. in the case of Rescous and 22 E 4. 4. there is a good diversity when the Writ is falsified by the shewing of the party himself and when it is found by Verdict And Iustice Haughton and Iustice Chamberlain were of opinion that the Writ should abate for it is apparent that as to the Trespasse Quare clausum fregit the Wife had no cause of action But this case being debated at Serjeants Inn in Chancery Lane at the Table the Lord chief Baron was of opinion that Plaintiff should have Iudgment for that part and he held the Writ good in part and Reddenda singula singulie Meâ—enest issint as it seems no more then in the case of 9 E 4. for there the Writ shall avate for part And if an action of forgery of Deeds be brought against two for forging and publishing and found that one forged and the other published the Plaintiff shall have Iudgment Howell versus Auger Trespasse IN an action of Trespasse brought by Noy Howell against Auger for breaking of a house and five acres of Land in Fresham upon Non Culp pleaded the Iury gave a speciall Verdict Devise of a Fee after a Fee Robert Howell seised of the Land in Question and of other Land by his Will in writing devised this Land to Dorothy his Wife for life and devised this Land to Thomas Howell his younger Son to him and his Heirs in Fee under the Condition which shall be afterwards declared And the other Land was also devised to Dorothy for life and to the Plaintiff and his Heirs in Fee under the Condition hereafter limited If Dorothy died before the Legacies paid then he will that they shall be paid by Noy and Thomas his Sons portion-like out of the Houses and Lands given them And if either of my Sons dye before they enter or before the Legacies paid or before either of them enter Then I will that the longer liver shall enjoy both parts to him and his Heirs And if both dye before they enter then his Executors or one of them to pay the Legacies and to take the profits till they be paid and a year after and made Dorothy his Wife and Christopher Roys his Executors and died Dorothy entred the Plaintiff Noy by his Deed In 33 Eliz. in the life of Dorothy released to Thomas all his right c. with Warranty Release of Lands devised before they be vested Thomas by his Will devised the Land for which the action is brought to Agnes his Wife and died in the life of Dorothy and before Legacies paid Dorothy died and Agnes entred and took to Husband Henry Ayleyard who leased to the Defendant upon whom Noy entred and the Defendant re-entred And Si super totam Materiam c. And this Case was well argued at Bar in two Terms and the first question was If this Devise of a Fes after a Limitation be good or not much was said for it and they relyed upon a case which was adjudged in the Kings Bench between Pell and Brown of such a limitable Fee Pell and Brown And many Cases put that this operate as a future Devise Executory as well as one may by his Will Devise that if his Son and Heir dye before he marry or before that he come to the age of
Demandant proceeds with the Issue And at the Nisi prius the Tenant relying upon the Non-suit it appeared not by whom the Petit Cape is awarded And now upon motion by Serjeant Henden who relyed upon the Non-suit and that the Essoin was allowable by the Statute of Westminster 2. post exitum habeat unicam Essoniam but it was ruled and the Prothonatories all said that it had been the constant use that no Essoins are allowed in Dower which is festinum remedium vide Stat. 12 E 2. cap 1. hath tolled the Essoin of the Service of the King in many cases and given to the Demandant in many cases power ad callumpniand Essoniam And the words of the Statute are Non jacet in breve de dote quia videtur deceptio prorogatio juris vide Dyer 324. There after the Issue joyned Essoin at the day of the Venire facias though no Venire facas be sued out but only awarded upon the Roll. Mich. 21 Jac. Linleys Case An Information against an under Sheriff for taking of 30 s for making of a Warrant upon a Capias ad satisfaciendum AN Information was exhibited against Linley under Sheriff to Sir Gny Palmes Sheriff of York vpon the Statute 32 H 6 and it was shewn that he being under Sheriff a Capias ad satisfaciendum was delivered to him to Arrest one Francis Lancaster upon a Iudgment for a hundred and three pounds The Defendant Colore officii took of the Plaintiff thirty shillings for making of a Warrant upon this Writ against the form of the Statute wherby he hath forfeited forty pounds Vpon not guilty pleaded and Verdict against the Defendant it was alledged in arrest of Iudgment that the making of a Warrant upon a Capias ad satisfaciendum which is for Execution is not within the Statute because the Statute speaks first of Fees to be taken upon the Arrest of the party when he is bailed viz. twenty pence to the Sheriff and four pence to the Baily then appoints that the Sheriff lets to Bail every one that is taken upon Bill or Plaint besides them which are taken for execution Outlawry c. and then comes the clause That nothing shall be taken for making of any Precept or Warrant but four pence and provision for the Obligation Condition and Fee and that all Obligations taken by any Sheriff Colore officii that these shall be void and that for every offence committed against the Statute he shall forfeit forty pounds The Lord Hobart inclined that this making of the Warrant upon the Capias ad satisfaciendum and the taking of thirty shillings is within this Statute and he resembled it to Dive and Maninghams case in Plowden where an Obligation taken of one in Execution is void by this Statute vide that the clause in this Statute for the Obligation is absolute without any restraint but that all obligations taken by colour of his Office with any other Conditions are made void This taking of thirty shillings for making of a Warrant upon a Capias ad satisfaciendum is extortion at the Common Law for which he may be indited but whether it be within this Statute or no is doubtfull Another Exception was taken to this Information That it doth not appear by this that this Writ of Capias was directed to the Sheriff of York or to any other Sheriff And then admitting this to be a Capias ad satisfaciendum directed to the Sheriff of Lincoln and it is delivered by an ignorant hand to the Sheriff of York to make a Precept therupon and he makes a Precept and takes thirty shillings this is not within the Statute also Colore officii will not serve for it is generall and it ought to be shewn that it was a Capias and to whom it was directed And although that all Processe should be generally directed to the Sheriff yet some may be to the Coroners or some by the mis-prision of the Clerks may be omitted as Jacobus Dei gratia c. tibi precipimus and say not Vice-Comiti Eboracensi salutem And an Information ought to be certain to all common intents and it is like to an Indictment And in an action upon the case against an Attorney because that he Corruptive and in deceit of the Plaintiff and in his name had acknowledged satisfaction to his damage and saies not wheras Revera non fuit satisfactus that is not good And the Court was of opinion for this cause that the Plaintiff should not have his Iudgment Bickner versus Wright AN action upon the case was brought by Richard Bickner against John Wright Case Prescription for the making of a Cony-borough in damage of his Common The Plaintiff prescribe to have Common omni tempore anni and saies not Quolibet anno And after Verdict adjudged good Trin. 22 Jac. Goldenham versus Some GGoldenham brought a Writ of Dower against John Some Dower Judgment in Dower upon Voucher who vouched the Heir of the Husband who entred into the Warranty and said that he had no Assets The Demandant had Iudgment for her Dower because nothing is said to the contrary against the Tenant with a Cesset executio untill the Warranty be determined And the Tenant which vouched when the tryall was at Assises made default but it was said that it should be the default of the Vouchee for he was dead before the Assises And now it was moved that the Demandant might have execution And by Henden it was said that the Voucher is not determined for he might vouch the Heir of the Vouchee But it seemed that the Voucher was determined and that he shall have the benefit of his Warranty by Scire facias out of the Iudgment but the Court doubted if the Plaintiff shall have Iudgment against the Vouchee conditionally if he had Assets if not against the Tenant or absolutely vide 3 H 6. 17. Dyer 202. there it is conditionall vide Dyer 256. there the Iudgment is against the Tenant upon Vouchee of the Heir in Ward to the King and that presently with a Cesset executio vide 46 E 3. 25. If the Vouchee be Counter-pleaded the Demandant shall have Iudgment presently vide 48 E 3. 5. Br Voucher 38. the Iudgment shall be against the Heir conditionally which is vouched in Dower vide 2 H 4. 8. there upon the Voucher of the Heir which makes default upon the Summons sequatur suo periculo the Iudgment is against the Heir conditionally if not against the Tenant and so Iudgment against one not party to the Suit and which never appeared And in this case the Iudgment against the Tenant with a Cesset executio may be good because that it doth not appear by any of their Pleas but that the Demandant is confessed to have her Dower none of them say that he is ready to render her Dower as the Heir ought when he enter into the Warranty This Term Serjeant Finch moved the case
use of the Kings Bench is never to enter the Admission but only to recite it in the Count vide 11 H 7. Rot 412. In a Writ of Right by Baron and Feme and another Feme Infants there per custodes good vide 8 E 4 5. for the Mainprise entred in another Term lib Intractionum fol 366. It was vouched by Croke and affirmed by Yelverton in one Simpsons case in Durham Simpsons case where the Tenant was by Prochein amy where it should be by Guardian was Error The Presidents are that an Infant when he sue may be by Guardian or Prochein amy the one or the other but when he is sued it shall be by Guardian Mich. 3 Car. Wolfe versus Hole WOlfe an Attorney Plaintiff against Hole by a Writ of Priviledge Amendment and he Count upon an Assumpsit And after Verdict given and Iudgment a Writ of Error was brought and moved that there was a default in the Imparlance Roll viz. fault de trover pledges which was as it ought to be in the Plea Roll And it was moved that it might be amended and after debate at Bar by Henden and Davenport it was resolved that the not finding of Pledges is not matter of form but matter of substance and it concerns the King for if the cause to amerce the Plaintiff the Iudgment is Ideo le Plaintiff ses pledge sont Amerce and that it is not aided by the Statute of 18 Eliz. quod quaere and vide 12 Eliz Dyer 288. there is a Case written by me that An 17 Jac was amended after the Verdict and in one Hillaries case and vide thâ—re in Dyer that the Plaintiff when he is sued by Priviledges ought to find pledges and that as well as when a Bill is filed against an Attorney But now because that it was assigned for Error and that if it be amendable the Iustices of the Kings Bench would amend it this Court would not but if it had been in the Imparlance Roll and omitted in the Plea Roll it should be amended vide 18 E 4. 9. that Pledges may be entred at any time Hil. 2. Car. Rot. 565. Hilton versus Paule RIchard Hilton brought an action of Trespasse against Robert Paule Trespasse Which shall be said a Parish Church within the act of 43 Eliz. for the maintenance of thâ— poor for the taking of a Saddle at Stoke-Goldenham And upon Not guilty pleaded the Iury gave a speciall Verdict Viz. That the Parish of Hinkley was de temps dont memory c. and yet is an ancient Rectory and a Church Parochiall And that the Town of Stoke-Goldenham is an ancient Town and parcell of the Rectory of Hinkley And that from the time of H. 6. and afterwards untill this time there hath been and is in the Town of Goldenham a Church which by all the said time hath been used and reputed as a Parish And that the Inhabitants of Stoke-G by all the said time had had all Parochiall Rights and Church-wardens And that the Towâ—â— of Stoke-Goldenham is distant two miles from Hinkley And the Verdict concluded it it should seem to them that Stoke Goldenham is a Parish for the relief of Poor within the Statute of 43 Eliz. cap. 2. then they find for the Plaintiff if not for the Defendant And this Case was argued by Serjeant Barkley and he vouched Linwood fol 89. and said that there is Ecclesia major minor and a dependant Church upon the principall and another Church and which is found to be used and reputed ergo it is not a Parish And that the Exception of the Chappell of Foulnes which by the Statute is made a Parish proves that Chappell and Parish are not within the Statute he vouched 4 E 4. 39. and 5 E 4. to prove that divers Town may be one Parish And the Lord Richardson said that it is a clear case that this is a Parish within the intent of the Statute of 43 Eliz. for the relief of Poor And that the Church-wardens and Overseers of Stoke-Goldenham might assesse for the relief of the Poor And though it be found that after the time of H. 6. and untill now it had been used as a Parish Church that doth not exclude that it was not used so before And a Reputative Chantery is within the Statute of Chantries 1 E 6. And this Statute being made for the relief of the Poor and that they might not wander therfore the intent of the Statute is to confine the relief to Parishes then in esse and so used And every one of the Court delivered their opinion and concurred And so Iudgment was given for the Plaintiff Hil. 3 Car. Peto versus Pemmerton Mich. 3 Car. Rot. 414. Replevin SIr Edward Peto Knight brought Replevin against Robert Pemmerton and Giles Thompson The Defendants made Conusance as Bayliffs to Humphrey Peto Where Grantee of a Rent-charge takes a Lease of part of the Land and surrenders it the Rent shall be revived and that Humphrey the Father of the said Humphry was seised of the place in which c. in Fee and by his Deed granted the Rent of six pounds to the said Humphrey his Son for life out therof to Commence after the Death of the Grantor and shewed that Humphrey the Father died and for Rent arrear c. The Plaintiff in Bar to the Avowry confesse the grant and seisin of the Land and that the said Humphrey died seised of the Land out of which the Rent was granted and that that descended to William and from William to the Plaintiff who entred and demised to the said Humphrey the Son parcell of the Lands unde c. for five hundred years by force of which Lease the said Humphrey had entred and was possessed The Defendants replyed that afterwards and before any part for which they made Conusance was arrear the said Humphrey the Son surrendred the said Lease to Sir Edward Peto to which surrender the said Sir Edward agreed wherupon the Plaintiff demurred And this Case was argued by Henden and he said that when the act of him which had the Rent made the suspension his act alone could not revive it But a Rent suspended might be revived by the act of Law or by the joynt act or agreement of the parties by whom the suspension was made 21 H. 7. 7. 19 H 6. 4. 19 H 6. 45. 7 H 6. 2. As for the personall things when they are suspended they are extinct unlesse it be in auter droit as if Feme Executrix take the Debtor to Husband and the Baron dies the Wife shall have an action of Debt against his Executors One reason in this case is because that by the surrender which is accepted the Contract is determined and that is by the act of both And by the surrender the Estate for years is extinguisht to all purposes as to that to which the surrender was made as if he had granted a Rent now it shall
latter Lease taken by him which was void did nâ—t surrender his former Lease which was good Sir Rowland Heywards Case the Lessee had Election to take as a Lease or as a Bargain and Sale and that it is not by way of Estoppell because it was contracted out of the Reversion Trin. 14 Jac. Rot. 3308 Thompson against Green Thompson and Green Mills and Whitewood adjudged that when one grants Proximam Advocationem to mother this is meerly void 13 Eliz. Rot. 1428. Ejectione firmae brought by Mills against Whitewood adjudged that where Lessee for years takes a new Lease after the death of his Lessor of the Gardian in Socage this is no surrender of his Lease 42 Eliz. Rot. 105. In Sir Arthur Capels Case adjudged _____ Rud who was Lessee for sixty years of an Advowson when the Church was void took a Presentation to himself of the Lessor and is admitten and inducted this was a Surrender of his Lease Mich. 5 Car. Baker versus Johnson A Iury was at the Bar in an Ejectione firmae brought by Henry Baker against Bartholomew Johnson upon a Lease made by James Baker which was seised of two Marshes among others called Knightswick and Southwick In a recovery if the Town be omitted the Land do nor pass which lye in an Island called Camby in the Parish there called North-Benfleet And he being Tenant in tail and intending to dock it and to make himself seised in Fee by Indenture the 10. of Eliz. Covenanted to suffer a recovery of these two Marshes by name and of many other Lands and that it should be to the use of himself in Fee and the recovery was had and therin South-Benfleet and many other Parishes named and Camby but the Parish of North-Benfleet was omitted And if the Lands in North-Benfleet passed or no was the Question And it was strongly argued by Crew and Henden to have it found specially it being in a Common Recovery which is but a Common Conveyance But all the Court agreed that the Town and Parish being omitted although that Camby was a place known but it appeared that that extends in and to ten Towns yet being in a Town that the Recovery extends not therto no more then if one had a Mannor in the Town of Dale which Mannor is called Bradford and within the said Mannor is a place known which is called Braisty Wood and he omit the Mannor and the Town and say the hundred acres of Land in Braisty Wood that is not good And the Court agreed that a Common Recovery is good in a Town Parish or Hamlet and peradventure in a place known out of the Town Parish or Hamlet as in the Forrest of Inglewood in Insula de Thamete c. But if it should be admitted that a Common Recovery shall be good in a place known in a Town or Hamlet that shall be absurd for there is no Town in which there are not twenty places known and it had been adjudged that a Venire facias de viceneto of a place known in a Town without making the Visne of the Town is not good Mich. 5 Car. Bill versus Lake London Case FRancis Bill brought an action upon the Case against Sir Aurthur Lake and counted that wheras at the speciall instance of Lettice Wife of the Defendant Where the request is the cause of action he had provided for the said Lettice a Tasfety Roll the Defendant did assume to pay as much as it was worth upon request And so in like manner for providing of Linnen stuff c. and making of severall Garments for the Wife and aver that the severall things bought amount to such a summ and the making therof was worth such a summ which in toto c. and alledge the request And aver that they were necessary Vestments and convenient for the degree of the Wife and after the making of them he had delivered them to the Wife The Defendant pleaded the Statute of 21 of King James for Limitation and said that the Plaintiff within six years after the promise supposed nor within three years after the end of the Parliament had not prosecuted any Originall or any Action upon this promise and Assumpsion wherupon the Plaintiff demurred And upon Argument at Bar by Serjeant Brampton for the Plaintiff and Davenport for the Defendant the matter was reduced to this Question Whether the cause of Action shall be said upon the request Quest or upon the promise Brampton agreed that where it is found upon an Assumpsit in Law and that the request is but for increase of Damages and not issuable there the Assumpsit is the cause of the Action But this cannot be founded upon an Assumpsion in Law because that it is not certain but to be made certain first by the Plaintiffs buying and providing of the Stuff Secondly by the Plaintiffs termining and making therof and then the matter of promise is for the payment of so much money as it should be reasonably worth and therfore the request is there collaterall and then it is the cause of the action and so within the Statute if it be an action which is founded upon an Assumpsit in Law then it doth not charge the Husband see the difference when request is materiall and shall be alledged and when not in Mecholl and Pecks Case before and a Feme Covert is not capable to make any Contract because she is Sub potestate viri And though it be for necessaries of Diet and Apparrell that shall not charge the Husband Sir William Alephs Case But an Infant is capable to make Contract for Diet and Apparrel necessary An 25 Eliz Sir William Alephs case was adjudged that where an Infant had taken so much for his necessary Apparrell and Diet which amounted to fifty pounds which was paid by Sir William Aleph And he took an Obligation with a penalty adjudged that it did not bind him in regard of the forfeiture And Dyer 234. Sir Michael Penits case the Wife took Sattin and Stuff to make her a Gown and Sir Michael paid the Taylor for the making therof And yet upon an action of Debt brought against the Husband it was resolved that it did not charge him And that the request to the cause of the action he vouched Dyer 31. 18 E 4. 4. solvend sur request and 9 H 7. fol 22. Replevin and Tenure for plowing the Land when he shall be required he ought to alledge the request and he concluded with a Case adjudged Hil 4 Car Rot. 710. Banco Regis between Shuesouth and Fernell an action upon the Case and count that the Defendant An 1618. had kept a Dog which he know had used to woory Sheep and that the Dog had wooried and killed divers Sheep of the Plaintiffs And the Defendant in consideration therof promised to satisfie the Plaintiff what he was damnified when he should be required therto and the promise was An 18 Jac. and the request and
refusall was within the time of six years and it was adjudged for the Plaintiff because that the request is the cause of the Action for without it he could not have his action And the sole matter upon which Davenport insisted was that this was a Contract by the Husband wherupon the Plaintiff might have an action of Debt against him and then it is but an Assumpsit in Law and the request is not cause of action And therfore he said as well as Debt lies upon the delivery of Cloath to a Taylor for the making Garments therof so an action of Debt lies for the summ accompanying the speciall matter viz. for the payment of so much as the making shall be reasonably worth vide Coke lib 4. fol 147. so Debt lies as well against the said Sir Arthur upon this promise being made then and there he vouched 34 E 1. Fitz Debt 167. vet N. B. fol 62. 30 E 3. 18. 19. 27 H 8. Tatams case But the Court inclined that no action of Debt lay against Sir Arthur upon this Assumpsit but only an action of the case upon the request Mich. 4 Car. Treford versus Holmes Case Assumpsit in consideration of forbearance TReford brought an action upon the Case against Holmes as Executor and counted that wheras the Testator was indebted to the Plaintiff the Defendant in consideration that the Plaintiff would forbear the said Debt for a reasonable time assumed to pay it And this promise was made in December and he shew forbearance untill March next And upon Non assumpsit pleaded and Verdict for the Plaintiff Serjeant Thinn moved in Arrest of Iudgment that it is no sufficient consideration for the incertainty of the time if it had been for a little time it had not been good But the Court adjudged it good for the Court ought to judge of the time whether it be reasonable vide Isaac Sidleys case before Then he moved another Exception which was that he had not shewn and averred in the Count that the Defendant had Assets at the time of the promise vide Coke lib 9. fol 93. 94. Baines Case that ought to come on the other part or otherwise it shall be upon Evidence if it be necessary And Iudgment for the Plaintiff Mich. 5 Car. A strange increase of Water in Westminster-Hall MEmorand That on Friday the twenty third day of October by reason of the greatnesse of the Spring-tyde and a great Flood the Hall of Westminster was so full of water that neither the Serjeants could come to the Bar nor any stand in the Hall for there was a Boat that rowed up and down there and therfore all that was done my Brother Harvey went to the Stairs which came out of the Exchequer and rode to the Treasury and by this way went and set in the Court and Adjourned all the Iuries for it was the fourth day del tres Mich. And after that we were in the Exchequer Chamber and heard four or five motions of the Prothonatories there This comming into Court was not of necessity unlesse it had been the Essoin day or that the Court should be Adjourned as Craft Animar The Chancery and Kings Bench sate for they came by the Court of Wards Freeman versus Stacy Mich. 5 Car. BEtween Freeman and Stacy upon a speciall Verdict the Case was y The Plaintiff count upon a Lease by Indenture for one and twenty years rendring Rent and in debt for the arrearages of this Rent it appears that the arrearages of the Rent for which the action was brought were due six years and more before the action brought And the Lord Richardson was of opinion Arrearages of Rent reserved by Indenture is not within the act of 21 Jac. of Limitations that Iudgment should be given against the Plaintiff because the Statute of the 21. of King James cap. 16. extends to Debts for arrearages of Rent expresly But I and my Brother Harvey and Brother Yelverton concurred that this action of Debt being upon a Lease by Indenture is not limited to any time by this Statute but is out of it and shall be brought as before the making of this Statute The words are All actions of debt grounded upon any lending or Contract without specialty All actions of Debt for arrearages of Rent c. And this is an action upon a Contract by specialty 4 H 6. 31. he ought to declare upon the Indenture and it is a Contract viz. a Lease And there is cause of using the Indenture every half year And it was resembled to the case upon the Statute of 32 H 8. of Limitation a Rent-charge which is founded upon a Deed or a Reservation of a Rent upon a Fee-â—â—mple by Deed are not within the Statute of Limitation And nothing in this Statute was intended to be limited which was founded upon a Deed And the words Debt for arrearages of Rent are supplyed and satisfied by the arrearages of Rent upon a Demise without Deed. And as to the Obligation that he proof of payment might be wanting when the occasion is brought so long after the Rent became due that might be objected to Debt upon an Obligation where the day of payment is for a long time past And afterward the Lord Richardson mutata opinione agreed with us And Iudgment was given for the Plaintiff Trin. 6 Car. Shervin versus Cartwright SHervin brought a Writ De rationabile parte bonorum against Cartwright and counted of Custom in the County of Nottingham Rationabl pars bonorum is not within the â— Statute of 21â— Jac. of Limitations and shew all specially and the conclusion was that he detaineth particular Goods of the party Plaintiff which appertained to him as his part and portion And upon Non detinet pleaded it was found that the Plaintiff was intituled to this Action many years before the Statute of 21 Jac. and that he had not brought his action within the time limited by the said Statute And upon the speciall Verdict the Case being argued by Serjeant Ward for the Plaintiff it was adjudged for the Plaintiff First because that this Action is an Originall Writ in the Register and is not mentioned in the said Act and though that the Issue is Non detinet yet this is no action of Detinue for a Writ of Detinue lies not for money unlesse it be in bags but a Rationabile parte bonorum lies for money in Pecuniis numeratis vide the Book of Entries Rationabile parte bonorum And this action lies not before the Debts be paid And the Account was that therby it might be known for what it should be brought and that in many cases requires longer time then the Statute gives Another reason was that Statutes are not made to extend to those cases which seldom or never happen as this case is but to those that frequently happen Also this Statute tolls the Common Law and shall not be extended to equity And upon all these