13. H. 4. 17. B. If one makes a Feoffment in Fee rendring Rent upon condition to re-enter for non-payment and dies the Rent being arrear the Heir cannot demand the Rent or enter for non-payment because that the Rent is not due to him and as he cannot dispence with the Condition for acceptance of the Rent so cannot he enter for non-payment thereof And I argued this Case again on Fryday being the first day of Trinity Term 14. Jac. 31. Maii at which day Daston did also argue for the Defendant but the Court did not then give any direct Opinion but seemed to incline very much for the Plaintiff And Hil. 14. Jac. the case was argued by Chilborne Serjeant for the Plaintiff and Davenport for the Defendant at which time all did agree that the Lease continued But Davenp took exceptions to the replication For he said that the marriage of Jane with Rob. Hawkins is alledged to be 21. of No. 39. Eli. and the death of William Agborrow her first Husband the 20. of Febr. 39. Eliz which is after the marriage but that was held not materiall for it is said that William Agborrow died the twentieth of Febr. 39. Elizab. and that atferwards viz. the one and twentieth of Novemb. 39. Eliz. Jane did marry Thomas Hawkins so that the afterward is sufficient Trin. 37. Eliz. Rot. 206. Butler against Wallis In a Trespasse the Defendant justified by vertue of an Extent upon a Statute and did shew the Extent and that the 28. of Febr. a Liberate was awarded by vertue whereof the Sheriff the 27. of Octob. delivered the land to him c. yet adjudged sufficient for when he said Virtute brevis the mistake of the day afterward is not materiall And at last in the said Term of S. Hillary Judgment all the Court agreed that the Lease continued good against the Survivor and cannot be avoided by him and that the acception to the pleading was not materiall And thereupon Iudgment was given for the Plaintiff Rot. 668. Pasch 11. Jacob. Between Thomas Palmer Knight Plaintiff Richard Greenwill and Edward Greenwill Executors of John Greenwill Defendants IN an Action of Debt on a Bond of fifty pound entred into by the Testators the 20. of Novemb. 5. Jac. The Defendant demanded Oyer of the Bond and Condition which was that if the Testator his Heires Executors and Assignes did perform all the Covenants comprised in certain Indentures bearing date with the Obligation made between the Plaintiff on the one part and the Testator of the other part that the Obligation shall be void And the Defendant pleaded that the Plaintiff by the said Indenture did let to the Testator a House and the moyety of his land amounting to about thirty Rods of land in Pollicote to have c. from Michaelmas last past for seven years rendring twenty pounds Rent and shewed that the Testator did covenant by the same Indenture for him his Executors and Assignes with the Plaintiff his Heires and Assignes within two years after the beginning of the said Lease to deliver or cause to be delivered to the Plaintiff or his Assigns a Map or Plot made in distinct manner by men of skill as well of all the land in little Pollicot as was then in his occupation and in the occupation of Thomas Cocker and John Crooke parcell of the Demise of the Plaintiff in Pollicot aforesaid as of all the land in the occupation of the Testator by a lease of Lincoln Colledge in Pollicot aforesaid which are all the Covenants c. And pleaded that the Testator in his life time and the Defendants after his death had performed all the Covenants c. Replication The Plaintiff replied that the Testator within two years after the beginning of the Lease did not deliver or cause to be delivered to the Plaintiff or his Assignes a Map or Plot made in distinct manner by Surveyors and men of skill of all the land in little Pollicot aforesaid in his occupation and in the occupation of the said Thomas Cocker and John Crooke parcell of the aforesaid Demise of the Plaintiff in Pollicot aforesaid Secundum formam effectum Indenturae praedict Vpon which Replication the Defendants demurred in Law And I conceive Iudgment ought to be given for them against the Plaintiff First the Plaintiff replies that the Testator did not deliver the Plot and it may be that it was delivered by the Defendants who were his Executors which is a good performance of the Covenant and if so then the Plaintiff has no cause of action and where the matter is left doubtfull in the Replication it shall be taken most strongly by the Plaintiff who pleads it And in the Comment 104. a. Fulmerstone against Steward If a man be bound to pay twenty pounds about Christmas it is no plea for him to say he hath paid it but he must shew when or otherwise it shall be intended that he paid it after the Feast and before the Suit And so in a Dum fuit infra aetatem if the Tenant do plead a Release of the Demandant it is no plea without saying that he was of full age for the plea shall be taken most strong against himself and that is that it was made when he was within age and 3. H. 7. 2. If the Defendant in a Trespasse does plead a release it is not sufficient without shewing that it was made after the Trespasse for otherwise it shall be taken to be done before And 26. H. 8. Pleading 147. If in a Praecipe quod reddat the Tenant does plead Warranty collaterall of the Ancestor of the Demandant and he replies that he entred and so does avoid the Warranty it is not good without saying that he entred in the life of the Ancestor for otherwise it shâ—ll be intended that he entred after the descent of the Warranty and in Dyer 89. and 96. The Plaintiff in an Ejectment declared on a Lease for years to begin at Michaelmas after the death of Thomas Boydon and M. his Wife and set forth that they died and he entred and adjudged insufficient for it might be that he entred after this death and before Michaelmas and Dyer 28. H 8. 27. A Covenant that the Lessee and his Assigns shall pay all Rents pleading that the Lessee hath paid them is not sufficient because the Assignes are omitted In his Occupation are words uncertain sc whether they shall be referred to the Plaintiff who iâ— last named or to the Testator 7 H. 7. 7. Ed. 6. Dyer 84 a. In a Trespasse brought by the Husband and Wife for breaking their Close bona sua capt and pleaded of a Trespasse made to the Woman Dum sola fuit for which the Writ abated The Plaintiff ought to shew that â—ome land was in the possession of Kocker and Crooke for otherwise it is impossible that a Map should be made thereof 12. H. 7. 8. a. 6. H. 7. 6. a. If I am bound to
and Iudgment was given therein whereupon the Tenant to the Assise brought a Writ of Error the 5. Eliz. in Easter Term which did abate by reason of his death and after in the time of King James the new Plaintiff brought a Writ of Error in Recordo quod coram nobis refidet which did also abate by reason of variety between the Record and the second Writ of Error whereupon Mich. 13. Jac. the said Plaintiff did purchase this new Writ of Error And the Defendants did plead in abatement of the said Writ of Error that the now Plaintiff before the purchasing of the said last Writ of Error and since the purchasing of the second Writ of Error viz. the 19th of September the 10. Jacob. did enter into the said Land and the same day and year at the place aforesaid did devise the said Tenements to one Thomas Alport Habendum from the Feast of S. John Baptist then last past for four years next ensuing by vertue of which Demise the said Thomas Alport into the said Tenements did enter and was and yet is possessed Vpon which Plea the Plaintiff demurred and the Defendants joyned And I conceive that the Plea is insufficient Yet I do agree that if he who hath cause to have a Writ of Error to reverse a Iudgment of Land does make a good Lease for years he hath suspended his Writ of Error for the Term as he does quite extinguish it by his Feoffment But here it appears that there is no Lease made for it is pleaded only that the Plaintiff did enter into the Land and it appears by the recovery that his entry was taken away by the Iudgment in the Assise whereby he gains nothing by his Entry but the Freehold and possession does remain alwaies to the Defendants being Heirs to the Recovery as appears by Litt. Warrant 158. If one be seised of Land and another who hath no right doth enter into the Land and continues possession yet doth he gain nothing thereby but the possession doth alwaies continue in him that hath right and so in the 3. Ed. 4. 2. Woolocks Case and in the Comment 233. Barkleys Case Execution is taken to be no plea in Bar to an Ejectment because it was shewed that the Lord Barkley did enter as in his Remainder and was seised in Fee untill the Lessor of the Plaintiff did eject him and did demise to the Plaintiff which is not good because it is not alledged that he disseised the Lord Barkley for otherwise he had no Estate to make the Lease and the Entry doth not imply any disseisin or doth gain any possession and 11 Edw. 4. 9. B. 12 H. 6. 43. B. And the Court did agree that the plea was insufficient But then it was moved that the Writ of Error was nought for the Writ was that Quidem Recordum processus Dom. Regina Elizabeth nuper Regina Angliae causa erroris interven venire sec and it appears by the Record that although the Recovery was removed by Writ of Error the 5. Eliz. at the Suit of the Father of the Plaintiff yet the Plaintiff did purchase a new Writ of Error Mich. 9 Jacob. and had a Scire facias against the Heirs of the Recover or who appeared Mich. 10. Jacob. and also the Writs of Habeas Corpus tales Distringas wherefore the Writ is naught for all the Recovery was not in the time of the Queen but part in her time and part in the Kings time But I conceive that it is good enough for first the Recovery and Processe is satisfied by transmitting the body of the Recovery as it is proved by the usuall form of all Writs of Error which is to certifie the Record and Processe and yet they do certifie only the Declaration and the Pleas omitting the Writs Also the Record shall be intended the principall Record and not the Writ and Proces Coke Rep. 11. Metcalfes Case the words of the Writ of Error Si judicium inde redditum sit this shall be taken to be the principall Iudgment 39 Ed. 5. 1. In a Scire facias brought by John Duke of Lancaster and Blanch his Wife to execute a Fine levied to them in the time of Ed. 2. and the Writ did recite the Fine to be levied Tenendum de nobis c. but it was adjudged good by Iudgment of Parliament and 2 R. 3. 4. Bough brought an Action of Debt against Collins who pleaded a forreign Attachment in L. by custome and did mistake the Custome and it was traversed that there was no such Custom and the major certified it so and all this was in the time of King Edw. the first and it was adjourned over to another Term before which time the King died and resumed in the time of King Richard the third and Iudgment given whereupon Collins did bring a Writ of Error which was Rex Dei gratia c. quia in Recordo processu in redditione Judicii loquela quae fuit coram nobis per breve nuper inter B. c. error c. And the question was if it was good And some said that there was no Warrant for such a Writ and some said that the Writ ought to have been speciall reciting how c. But the Masters of the Office said that in a Writ of Error before the Iustices of the Bench there is but a generall form in the Writ And after it was adjudged that the Writ of Error was good John Vandlore Plaintiff Cornelius Dribble Defendant Trinit 14 Jacob. Rot. 1062. IN an Action of Debt on a Bond of two hundred pounds made the eleventh of Febr. the 12th of King James upon condition that the Defendant shall perform the agreement of William Holliday Thomas Moulson Robert de la Bar and Humphrey Burlemacke Arbitrators elected c. to arbitrate of and for all Actions Suits Accounts and Demands had moving or depending in variance between the parties before the date of the said Obligation so that the agreement of the premisses be made and put into writing before the twentieth of March next The Defendant pleaded that there was no such Arbitrement The Plaintiff replyed that the eighteenth of March 12 Jacob. they did make an Arbitrement c. of and concerning the Premisses that the Defendant should pay the Plaintiff fifty pounds viz. twenty pounds at April next and twenty five pounds at _____ and the twentieth of July next twenty five pounds in full satisfaction and discharge of all such monies as the Plaintiff did claim or demand of the Defendant by reason of the administration of the Goods c. of John Stadsell or by any other means whatsoever And that each of the parties upon payment of the said fifty pounds shall make generall Acquittances one to the other of all Actions Debts and Demands unto the day of the making of the said Acquittances And alledged breach to be made in the payment of the said twenty five pounds the twentieth of
of age or not 29 Assise 67. In an Assise against Husband and Wife the Husband did answer as Tenant and the Wife would not but the Husband said that his Wife was within age and that she was taken away but did not say by whom and he did appear for himself and his Wife as her Guardian and pleaded in Bar and one of the Counsell said that the Wife had made default which is the default of the Husband and because that he answered as Guardian without Warranty by Record in this Court to do the same Iudgment c. And there Thoâ—â— said that he ought to have a Warranty in such case wherefore the Assise was awarded 35 H. 8. 56. In a Writ of Right by the Husband and Wife the wife being within age and she appeared by her next of Kin and was admitted by the Court. New Book of Entries 256. In a writ of Error to reverse a Fine by Maurice Pierce and Joane his wife and John Pierce and Elizab. his wife the three first appeared in person and Elizabeth being within age by one Laurence Gibson her Guardian and admitted by the Court. And so in this Case forasmuch as the Land is the Inheritance of the wife which is demanded which she will lose by this Recovery she ought to appear by her Guardian notwithstanding the full age of the husband who is joyned only for form sake with his wife 30 31 Eli. Morseby against Charnock The husband and wife levied a Fine and after this was reversed by Error because that the wife was within age the husband shall not have the Land for all the Estate passeth from the wife and the husband joyned only for conformity Coke 2. Rep. Cromwels and Beckwiths Case But it may be objected also Object that this Error concerning the nonage of the wife is so appropriated to her person in privity that no stranger can take any advantage thereof I conceive not so Answer for the constituting of an Attorney is utterly void as to the wife and therefore every stranger shall take advantage there as is not like the Case where an Infant makes a Feoffment which is but voidable and therefore the Lord by escheat nor any stranger shall not avoid it 22 H. 6. 31. The Plaintiffs within age did sue by an Attorney and there it was ruled that the Defendants might have a Writ of Error and placit 37. Eliz. Rot. 253. Bartholomew brought a Writ of Error against Dighton for that Dighton recovered against him in an Action of false Imprisonment in which he being within age did sue by an Attorney and adjudged that Iudgment should be reversed And this Case is not to be resembled to the Case of a Fine levied by an Infant which cannot be reversed by any but by the Infant himself and the same Law is of a Recognizance by an Infant and the reason of these Cases is because it is the Act of the Court to admit him to levy a Fine or to acknowledge a Recognizance and therefore this ought to be reformed by the Court and that must be by inspection of the Infant and therefore it ought to be done during nonage But the nonage in this Case ought to be tryed per pais as it was adjudged in the said cases of Bartholomew and Dighton and the case of Hobbs in which case the Infant was brought to the Bar to be inspected but adjudged by the Court that it should not be so because the matter was tryable per pais and 10. Rep Mary Portingtons case A common Recovery against an Infant although he appears by his Guardian shall not bind him for an Infant hath not such a disposing power of his Land as the Husbands wife have but is utterly disabled by the Law to transfer or convey his Inheritance or Freehold to others during his minority And of late daies a common Recovery does appear to be a common conveyance and assurance of Land The third part of the Case is If the two matters pleaded in Bar of Part. 3 the Writ of Error or any of them be sufficient or not I conceive not And first as to the Fine with Proclamations levied before the Recovery had which is the Plea of Mary Taylor one of the Ter-tenants I conceive that it is utterly insufficient as well for the manner as the matter of the Plea for she hath disabled her self to plead this Plea for she sets forth that the twentieth of May 31 Eliz. Thomas Leigh and Katherine his wife did let to the said Mary a Cottage and three acres of Land parcell of the Tenements expressed in the Fine and Recovery for life but doth not shew in what Town the said Cottage and three acres do lye wherefore the Plea is altogether uncertaine and insufficient for the Tenements in the Recovery do lye in two Towns viz. In Alkington and Prestwick and it doth not appear by this Plea in which of these the Cottage and three acres do lye 5 Ed. 4. 116. b. In a Formedon in Discender of a house and forty acres of Land and six of Wood in three Towns and the Issue being to be tryed the Tenant said that the Demandant had entred into the house and thirty acres of Land and three of wood And by the Court the Plea was naught because it did not appear in which Town the Entry was And in Moore and Hoskins case in the Exchequer 8 Jacob. In an Ejectment of Land in Overkiddington and Netherkiddington the Defendant pleaded not guilty and when the Issue came to be tryed by Nisi prius in the County of Oxon the Defendant pleaded an Entry of the Plaintiff in three acres of the Land contained in the Declaration since the last Declaration whereupon the Plaintiff demurred and adjudged that the Plea was insufficient and thereupon the Plaintiff had Iudgment to recover Secondly for the matter this Fine being precedent to the Recovery whereby the cause of this Action is given cannot extinguish it for it is a Rule in Law that one cannot give or grant that which one hath not 22 H. 7. Kelway 84. If the eldest Son in the life-time of his Father infeoffs another it is void as to bind the Land and Littleton Releases 106. These words in a Release Quae quo vis modo in futuro habere potero are void in Law for no Right doth passe but only the Right which the Releasor had at the time of the Release as if the Son release to the Disseisor of his Father all the right which he hath or may have and the Father dye the Son may enter because that he had no right in the life of his Father but only a descent to him after the Release by the death of his Father 13 Ed. 1. 10 Ed. 2. and 4 H. 7. cap. 24. It is enacted that Fines with Proclamations shall conclude as well Privies as Strangers saving to the strangers such right claim and interest as they had at the time ingrossed so as they
this warranty and thereupon they have recovered in value wherefore this Warranty is utterly determined 23 Edw. 3. Recover in value 12. If one upon a warranty vouch and recover in value and then is impleaded of the Land recovered in value he shall not vouch againe because the warranty wâ—s once executed The warranty is determined by the reverting of the Estate to whom it was annexed for when Katherine died Thomas Lea was to warrant the Land to the Conusees and after his death he had the Entire Fee-simple of the Land 22 of Edward the third 1. In Dower by Nicholas Powes and his wife the Tenant vouched A. who was ready in Court demanded what he had to bind him to warranty who said that the said A. B. his wife had rendred to him the said Tenements by Fine and obliged them and the Heirs of the wife to warranty and said that the wife was dead and had a Son and Heir who was liable to the warranty before him Iudgment of the Voucher and the Court held the Vouchment good Whereby it appears that after the death of Katherine Thomas was bound to this warranty and by his death he had a Fee-simple whereby the warranty is destroyed Littleton 169. If Tenant in Taile enfeoffs his Vncle who enfeoffs A. with warranty A. re-enfeoffs the Vncle in Fee who enfeoffs a stranger in Fee and dies without Issue the Tenant in Taile dies the Issue shall not be barred by the warranty of the Vncle because he does re-take to him as great an Estate of his first Feoffee to whom the warranty was made as the said Feoffee had from him and the cause why the warranty is defeated in this Case is because if the Warranty be in force then the Vncle shall warrant it to himself which cannot be And in one Case the Ter-tenants do claime the Estate which Thomas Lea had and therefore they cannot have a greater advantage by the warranty then he had Nat. B. 135. If one enfeoffs another with warranty and the Feoffee enfeoffs another and re-takes the Estate in Fee the warranty is determined and the 22 H. 6 22. b. accords with this because he is in of another Estate And depending the Writ of Error Viz. Trinit and Michaelm 14 Jacob. One of the Plaintiffs in the Writ of Error did dye which was pleaded by the Defendants Michaelm 14 Jacob. whereupon the Writ of Error was abated Hillar 13 Jacob. Robinson against Matthew Francis Administrator of Alban Francis Rot. 542. IN an Action of Debt on a Bond of 100 l. made the first of August 10 Jacob. The Defendant pleaded that the Intestate 20 November Plea the 11 Jac. was bound to Elizabeth Francis in 100 l. which was unpayd at the death of the Intestate and that Elizabeth marryed John Pennial John and Elizabeth brought a plea of Debt against the Defendant before the Major of London for the said 100 l. and recovered by default and had Execution of 55 l. 8 s. 5 d. and so acknowledged satisfaction c. and did further plead that the Intestate the 12 Janua 7 Jacob. did acknowledg in Chancery that he owed to the Lord Chancellor and to the Master of the Rolls 500 l. which Recovery and Recogniâ—â—nce did amount to 600 l. 8 s. 6 d. And that the Defendant for the said Execution and for payment of divers Debts of the Intestate before this Action plene administravit omnia bona Intestatoris praeterquam bona ad valentiam 100 l. which were lyable for the residue of the said Recovery and for 100 l. parcel of the said 500 l. and that he hath not nor had at the day of the Writ purchased any other goods c. saving to the value of the said 55 l. 8 s. 5 d. and the said 100 l. and did aver that the Debt recovered before the Major c. was a true and a just Debt and that the said Recovery as to 45 l. and 1 d. residue of the said 100 l. 8 s. 6 d. and the said Recovery did remain in force The Plaintiff as to the Recovery said That the said Obligation Replication upon which the said Recovery was had was made for security of the payment of 55 l. and that the said John Pennial and Elizabeth did accept the said 55 l. 8 s. 5 d. in full satisfaction of the said Iudgment and were content therewith and offered therefore to make a Release or to acknowledg satisfaction but the Defendant to defraud the Plaintiff of his just Debt did defer to have satisfaction acknowledged or to have a Release of the residue of the Iudgment and suffered the Iudgment to remain in force by fraud and covin to the intent aforesaid c. The Defendant as to the residue of the Debt Rejoynder and the acceptance of the said 55 l 8 s. 5 d. in satisfaction of the Iudgment and to the offer of Release and acknowledgment of satisfaction did demur in Law And as to the Recognizance he said that a Condition was annexed to it scil That if the Intestate his Executors or Assigns should pay 100 l. with the increase thereof to William Francis an Infant when he shall come to the age of 21 years and in the mean time shall imploy it to the benefit of the Infant according to the Will of William Francis that then the Recognizance shall be voyd and did aver that William Francis was alive and within age and that the said 100 l. was not yet payd And the Plaintiff to this did joyn in Demurrer And to the other Plea did demur in Law and the Defendant did joyn And I conceive that as to the first Demur the Plaintiff ought to have Iudgment for now it is acknowledged by the Defendant that he hath 100 l. in his hands besides the 55 l. 8 s. 5 d. delivered in Execution and he hath not shewed any sufficient cause for retaining it for when those who recovered 100 l. upon the Bond did accept 55 l. 8 s. 5 d. in full satisfaction of the Iudgment and did offer to release and acknowledg satisfaction this Iudgment in truth is discharged and cannot charge the Executor and therefore he cannot return riens en ses maines to satisfie because he is not bound to pay it Cook 8 Rep. Turners Case who brought an Action of Debt upon a Bond of 100 l. against Laurence and others Administrators of Booker The Defendants pleaded in Bar divers former Recoveries against them in Debt had that they had not Assets praeterquam bona catalla quae non attingunt ad valorem of the said Debts recovered The Plaintiff replyed that the Defendants since the Recoveries did pay part of the Debts in full satisfaction wherewith they held themselves content and offered to acknowledg satisfaction but the Defendants did refuse to agree to that to the defrauding of the Plaintiff And adjudged that the Plaintiff should recover for an Executor ought to execute his office truly Object
cannot be First because that the Land devised to them is onely a Chamber and a mansion of little value and that is to repair the Bridg and that is a work of such charge that no surplussage can be intended Secondly The clause is Id quod clarum fuerit ultra solutionem reparationem c. which are the very words in the clause used for the disposing of the residue to R. for the time and cannot be referred to the Devise of the Wardens of the Bridge because that the things devised to them are apparently to be for the reparation only and no payment is limited out of it but the Tenement out of which the Stipend is to be payd is first charged with this payment and then with the reparation of the Tenement and then with the Ornaments and Books for the Church And afterwards this Case was argued by Coventrey the Kings Sollicitor for the Plaintiff and by S. Chibborne for the Defendant And Mich. 16. Jac. The Barons viz. Tanfeild Bromley and Denham did openly declare their opinion that the Land was not demised to the Parson by this Will and thereupon they commanded Iudgment to be entred for the Defendant which was entred accordingly Trinit 15 Jacob. John Adams against Roger James Knight and others IN a Replevin for taking of twelve Cowes and two Calves the twenty fourth of May the 14. of King James at Upminster in a place called Nelfeild alias Newfeild ad damnum 10 l. The Defendants did justifie the taking c. as Bayliffs of Thomas James and Moily Deale for that the place contained twenâ—â— acres of Pasture And that William Latham was seised in Fee of the Mannor of Upminster whereof the said twenty acres are parcell and the twenty fifth Maii 13 Eliz. devised the same to George Wiseman excepting one Close of Land or Pasture called Crouckfeild containing by estimation fifty acres and a parcell of a Close called Ecrowchfeild containing by estimation sixty acres and all Woods and Frees and Profits of Court Leets Waifes Estrayes Escheats Hermots Reliefs Goods and Chattels of Felons and Fugitives Deodands and Treasure Trove Habendum from Michaelm 1576. for sixty one years rendring forty pounds Rent at the Annunciation and Michaelmas The first of Octob. 1576. George Wiseman entred The twentieth of August 35 Eliz. William Latham by Deed inroled for the consideration of two thousand pounds did bargain and sell the Mannor to Roger James Father of the Defendant Roger in Fee and the 15 Decemb. 39 Eliz. Roger James the Bargaines did devise the third part of the Mannor to John his Son after whose death John was seised of the third part in Fee The seventh of August 11 Jacob. John James by Indenture for a thousand pounds paid by Thomas Fryth did bargain and sell to the said Thomas Fryth and Moyle Deale the said Reversion of the said third part Habendum from the said seventh of August for a hundred years ex intentione that they should grant or assign the said term to Thomas Fryth or his Assignes upon condition that he should pay a thousand pounds to the said Roger James viz. five hundred pounds the seventeenth of August 1614. and five hundred pounds the seventeenth of Febr. next after And because sixty pounds thirteen shillings foure pence was behind to the said Thomas James and Moyle Deale for halfe a yeare ending at Mich. 12 Jac. they did well justifie the taking c. The Plaintiff said that after the seventh of August Bar. 11 Jac. and before the said Mich. 12 Jac. viz. the ninth of August the 11 Jac. the said Thomas James and Moyle Deale did bargain and sell to the said Thomas Fryth all their Estate in the said third part whereby he was and yet is possessed Replication The Avowants replyed that the Bargain and Sale was upon Condition to pay the said thousand pounds to the said Roger James at the said days of payment and that Thomas Fryth did not pay the said five hundred pounds the seventeenth of August 1614. Rejoynder The Plaintiff rejoyned that after the said ninth of August 11 Jac. scil 10. August 11 Jac. the said John James was seised in Fee of the Reversion of the third part expectant upon the estate of the said George Wiseman And that the tenth of August 11 Jacob. John James by Indenture inroled did bargain and sell the said Reversion to the said Thomas Fryth and his heires That the seventeenth of August 11 Jac. John James by Indenture dated the aforesaid seventh of August 11 Jac. fâ—r a thousand pounds did bargain and sell the said third part to the said Thomas James and Moyle Deale Habendum from the said seventh of August 11 Jac. for a hundred years and that they after scil the aforesaid seventeenth of August 11 Jac. did bargain and sell to the said Thomas Fryth upon condition before expressed Absque hoc that the said John James did bargain and sell to the said Thomas James and Moyle Deale the said Reversion before the said tenth of August 11 Jac. and absque hoc that the said Thomas James and Moyle Deale before the said tenth of August 11 Jac. did bargain and grant the said Reversion to the said Thomas Fryth on condition as aforesaid Vpon which the Avowants demurred and shewed for cause that this is a departure from the Bar and that the said Rejoynder is in it self repugnant And I conceive that Iudgment ought to be given for the Plaintiff in the Replevin for that the Conusance is utterly insufficient for three causes 1. The Defendants make Conusance as Bayliffs to Thomas James and Moyle Deale and do endeavour to entitle themselves to a third part of the Reversion and Rent upon the Lease to Wiseman by the Devise of Roger James and it doth not appear in all the Conusance that Roger James was dead before the Grant made by John James to the said Thomas James and Deale for it is not set forth that he died but only by implication scil the bargain and sale by Latham is pleaded to Roger James lately dead which doth refer to the time of the plea which was long after the Grant to Thomas James and Deale and after the Rent due and the taking of the Distresse then it is alledged that after the death of Roger James the Devisor John James entred which is not sufficient because it is not alledged in fact that he dyed or when he diâ— dye And all the Court agreed the Avowry insufficient as to this exception Secondly the bargain and sale of the Reversion by John James to the said Thomas James and Moyle Deale is pleaded to be made the seventh of August 11 Jac. Habendum from the aforesaid seventh of August for a hundred years whereby the day it self is excluded and so the Grant is to take effect in the future which cannot be by the Rules of Law as in Bucklers Case 2. Rep. where Buckler Tenant for life in Mich. Term 20 Eliz. made
portion not payd then if the Defendant shall pay to the said Susan the said 400 l. within six weeks after the said first of May to such person to whom the said Elizabeth by the said Will ought to pay the same and shall procure good and sufficient discharge to the said Elizabeth of the said sum of and from all persons to whom the same shall be due that then all the said Obligations shall be voyd and delivered up to the Defendant cancelled and made voyd And the said Elizabeth did covenant that until manifest default was made in the premisses and the said Elizabeth shall be thereof damnified and upon reasonable request no satisfaction shall be given to her she will not take any advantage by reason of the said Obligation nor will prosecute any Suit against the Defendant or any other bound in the said Obligation And the Defendants said that the Plaintiffs nor any of them was not damnified by reason of the said Obligation in the Declaration or by reason of any of the said other Obligations and did aver the said Obligation in the Declaration and the said Obligation of 120 l. in the Indenture to be all one and that the said several days of payment limited by the Indenture nor any of them at the time of the Writ purchased were incurred Vpon which Plea the Plaintiffs demurred and the Defendant did joyn And I conceive that Iudgment ought to be given for the Plaintiffs for the Plea is utterly insufficient for divers causes And yet I do agree that although the Obligation be upon a condition yet is the Indenture a Defeasance thereof so that it is sufficient to the Defendant to perform the one or the other But the Indenture is of two parts 1. That if the Defendant shall pay to Elizabeth the daughter 500 l. and shall perform the other things mentioned in the Plea that all the Obligations shall be voyd and delivered up 2. The Plaintiff Elizabeth did covenant that until the Defendant should make default in the premisses and she should be damnified and upon request no satisfaction given to her she should not take any advantage of the Obligation nor shall prosecute any Suit against the Defendant or any other bound in the said Obligation And as to the first part I do agree that this is a good defeasance of the Obligation but the last clause is onely a Covenant and cannot be pleaded in bar of this Action brought upon this Obligation as in the 21 H. 7. 30. John de Pusetoes Case The said John and others were bound to T. who by Deed did grant to the said John that he should be quite discharged of the duty and if he be vexed or sued that the Bond shall be voyd which Case is there very largely argued but I conceive the better Opinion to be that the Bond is discharged because that the words are in effect as the words in the first part of this Indenture scil That if such act be made the Obligation shall be voyd But there Fineux said That if I grant to my Tenant for life that he shall not be impeachable for waste he shall not plead this in Bar but shall have an Action of Covenant thereupon And Brudnell put this case That if I grant to one against whom I have cause of Action that I will not sue him within a year this is not any suspension of the Action Vpon which case it is to be observed that I may sue and the other is put to his Action of Covenant And the Plea is first insufficient because he pleads that the Plaintiffs nor any of them were damnified by reason of the Bond in the Declaration or by reason of any of the aforesaid Writings obligatory in the said Indenture specified but he does not answer to the damnification by reason of the 500 l. to be payd to Elizabeth the daughter which is the principal matter to be done by the Defendant for the defeasance and in truth this Portion was due and not payd before this Suit begun The Defendant did aver that the several days of payment limited by the Indenture are not incurred and there is not any day limited for the payment of 500 l. and the truth was that it is payable at the time of the marriage of Elizabeth the daughter but this is not limited by the Indenture nor any time for the payment thereof and therefore this a verment is not good The Indenture of the Defeasance is if the Defendant shall pay the 500 l. or procure to the Plaintiff Elizabeth sufficent discharge for the same and shall provide fit maintenance for Elizabeth the daughter Whereupon I conceive that the Defendant ought to pay 500 l. and provide maintenance for the daughter or otherwise that he should procure a discharge from the Plaintiff Elizabeth and shall also provide maintenance for the daughter for her maintenance is as necessary if the mony be payd as it will be if the discharge be procured And the Defendant hath made no answer to the providing of maintenance Judgment And Michaelm 15 Jacob. Iudgment by all the Court was given for the Plaintiff Rot. 590. Trinit 16 Jacob. Margaret Evans against Wilkins IN an Action on the Case for that the Plaintiff the 12 September 15 Jacob. did retain the Defendant to be her Shepherd c. and that the Defendant in consideration of 6 d. to him payd by the Plaintiff and of 33 s. 4 d. of his Sallery to be payd to him for a year and in consideration that the Plaintiff did assume to pay the 33 s. 4 d. to the Defendant and to finde him meat drink and lodging for the said year and to permit the Defendant to have Pasture for twelve Sheep with the Sheep of the Plaintiff Did assume to serve the Plaintiff as a Shepherd for one year from Michaelmas next c. and to keep her Sheep To which the Plaintiff giving credit did not retain any other Shepherd and the Plaintiff did aver that she was ready to pay the Defendant the said 33 s. 4 d. and to provide him meat c. and to permit him to have Pasture for twelve Sheep with the Sheep of the Plaintiff yet the Defendant did not feed the Sheep of the Plaintiff although required the 4 Octob. 15 Jacob. whereby many of her Sheep dyed ad damnum 40 l. The Defendant pleaded the Statute of the 5 Elizab. whereby it is enacted That the Justices of Peace of every County or the greater part of them then resident in the County and also the Sheriff if it may be and every Major Bayly or other chief Officer of any City or Town Corporate in which there shall be any Justice of Peace within the limits of the said Town before the tenth of Iune next coming and afterwards shall yearly at every general Sessions first held and to be kept after Easter or any convenient time after Easter shall meet together and after such meeting shall call
held and have accustomed to have in the aforesaid two hundred acres of pasture and a hundred of wood parcel of the aforesaid Tenements called the Mannor of Colwick belonging to the said Mannor of Colwick enclosing ditching and hedging at their will and pleasure with all liberties priviledges and Franchises to the said Park belonging and in the said Park from the time aforesaid have used to have and to keep Deer and from time to time to constitute and appoint a Keeper of the said Deer in the said Park who from the aforesaid time have used to keep the same ac ad venandum fugandum occidendum capiendum asportandum omnes omnimodas damas in eodem parco de tempore in tempus existentes ita quod nullus forestarius Domini Regis Forestae praedictae nec aliquae aliae personae quaecunque intromittantur ad venandum fugandum in parco praedicto sine licentia praedicti Johannis avi And set forth that the said John the Grandfather died seised whereby the said Mannor c. descended to Sir John Byron his Son And that Hillary 3. Jacobi a Fine was levied between Sir Peter Leigh and other Plaintiffs and Sir John Byron the son Defendant of the said Tenements to the use of the said Sir John for life the remainder to the Defendant in tail And that the seventeenth of December 10. Jac. did let the Premisses to the Defendant for eighty years if the Lessee should so long live wherby the Defendant the 26. Mar 11. Jac was and is thereof possessed did aver that the Mannor of Colwick in the information and the said Messuage a hundred acres of Land two hundred of Meadow three hundred of Pasture and a hundred of Wood to be the same and did also aver the life of the Lessor The Attorney Generall for the King did reply that before the information sc 9 Octobr. 19. Jacobi and long before and continuing after untill the exhibiting of this information the Defendant the Park and Tenements aforesaid with Ditches Hedges and Fences had so sleightly inclosed that the Kings Deer of the aforesaid Forest for defect of sufficient inclosing of the Park and Tenements aforesaid through the default of the Defendant did enter and the Deer of the King into the said Park and Tenements aforesaid for the cause aforesaid entring the Defendant did very unjustly kill the said Deer in the said Park and Tenements aforesaid The Defendant did maintain his Bar and traversed without that that the Defendant the Park and Tenements aforesaid with such sleight Fences Hedges and Ditches inclosed did keep the same Quod Damae Regis de forresta praedicta de tempore in tempus intra tempus praedictum in parcum tenementa praedicta pro defectu sufficientis inclusurae parci tenementorum praedictorum in defectu defen intraverunt absque hoc quod Defendens Damas Regis de forresta praedicta in parco tenementis praedictis pro defectu sufficientis inclusurae parci tenementorum praedictorum in defectu defendentis minus juste interfecit modo forma prout c. Whereupon the Attorney demurred And I conceive that Iudgment ought to be given for the King First Because the plea in Bar and the Rejoynder made by the Defendant is altogether insufficient for divers causes Secondly As to matter in Law And as to the first The Quo Warranto doth suppose that the Defendant did use the liberties there mentioned within the Mannor of Colwick being within the meets and bounds of the Forest of Sherwood and within the Reguards of the said Forest and the Defendant did know this to be within the meets and bounds of the said Forest but does not answer whether it be within the Reguards or not for it may be within the meets and bounds of the said Forest and yet not within the Reguards as if the Mannor were disforested by Carta forestae because it was a Subjects Mannor and not the Kings yet it remains within the meets and bounds of the said Forest but not within the Reguards for now by the disforesting it is made purlue and not subject to the Reguards and Lawes of the Forest as to the Owner of the Mannor Vide Carta Foresta fol. 1. and yet notwithstanding this Statute if the King had granted this Mannor to be free of the Reguards or out of the Reguards yet is it still within the meets and bounds of the said Forest Secondly The Dendant makes Title to the liberties whereof Sir John Byron his Grandfather was seised in Fee viz. of a Messuage a hundred acres of land two hundred of Meadow three hundred of Pasture and a hundred of Wood in Colwick now and time out of mind called the Mannor of Colwick Quodque ille omnes illi Quorum statum idem Johannes habuit in tenementis praedictis habuerunt tenuerunt habere consueverunt in praedictis 200. acris pasturae 100. acris bosci parcellis praedictorum tenementorum vocat mannerium de Colwick praedictum parcum tenementa praedicta vocat mannerium de Colwcik spectant pertinent c. So that the Defendant doth not prescribe but doth alledge only that Sir John Byron and those whose estate he hath have used to have a Park the which is no Title to the Park for that ought to be time out of mind Thirdly The Defendant doth claim to have a Park in the aforesaid two hundred acres of pasture and a hundred acres of wood whereas there is no speaking of two hundred acres of pasture before and therefore he ought to have said in two hundred acres of pasture parcell of the said three hundred acres Fourthly The Defendant doth not answer to the killing of the Kings Deer of the Forest but doth only justifie the killing of all Deer time out of mind being in the said Park Fifthly The Rejoynder is a manifest departure from the Bar for in the Bar he claimeth to have a Park ditched and hedged Per voluntatem eorum inclusum so that by this pretence he may keep the Park with such low Hedges as he will and yet in his Rejoynder he doth traverse absque hoc that he kept the Park adeo parvis sepibus Fossatis quod Damae Regis de foresta praedicta in parcum praedictum pro defectu inclusurae intraverunt absque hoc c. So that the Defendant by his Rejoynder doth make an Issue upon that which he doth justifie in his Bar and doth upon the matter deny in his Rejoynder the matter alledged by him in his Bar. And as to the matter in Law I conceive that the Defendant cannot prescribe to have a Park in such manner as he pretendeth for that such prescription is quite contrary to the nature of his Royall Franchise of his Forest and is to the destruction of it for a Forest is a Royall Franchise so that regularly none can have it but the King as it was adjudged in this Court in a Quo Warranto
the Statute and therefore they are gone The reason of making of this Act was Answer because divers priviledges which they had as Bona Catalla Fellonum c. were extinct by the accession to the Crown and therefore it was necessary to revive them but if the Statute had not been made yet shall the King have all those Priviledges which were not extinct as Parks Chases Warrens Markets Fairs c. And that this priviledge is given to the King may be proved by a Proviso in the Statute whereby it is provided that all priviledges of Sanctuaries before used or claimed in houses or other places commonly called S. Johns Hold and all other Sanctuaries before used and appertaining to the said Hospitall shall be void and of none effect whereby it appears that if that Proviso had not been made the priviledge of Sanctuaries had been in the King and his Patentees in the same Mannor as had been used before the dissolution and that by force of this word Priviledge and yet this priviledge of Sanctuary does not concern the Land as discharge of payment of Tythes doth Object 3 But it may be again objected that the Statute of the 31. H. 8. hath an expresse clause for discharge of the payment of Tythes which needed not to have been if the generall words would have served Answer I answer that there were two reasons to put this Clause into the said Statute 1. To induce purchasers to buy the said Land and at a greater price 2. For the infinite manners and means of discharge which the Abbots had so that it would be very hard for Purchasers to know them and this appears in Coke Rep. 2. Bishop of Canterburies Case but in our Case the means is very well known and therefore such clause was not necessary And as to the second point I conceive that the clause for discharge of the payment of Tythes doth extend to the possession of this Pryory and yet I do agree that their Lands are given to the King not by the Statute of 31. of H. 8. but by the 32. of H. 8. And to prove this the Statute of 31. H. 8. does extend to all Abbies Pryories Hospitalls and other Religious and Ecclesiasticall houses and this Pryory was Religions and Ecclesiasticall for they vowed Obedience and Chastity and the case in the 27. H. 8. 16. in the case of Martin Dockwray where it is holden that Fryers are dead persons in the Law be they of an Abby or any other Pryory and that appeares by the Statute of 32. of H. 8. of their dissolution by which it is enacted that the Fryers shall sue and be sued by their proper names and that they shall have such capacities liberties and freedomes as were given to other Religious persons in an Aâ—â— at the first Session of this Parliament And in further proof hereof divers Rectories were appropriate to them and Tythes given to them and they enjoyed them and the Statute gives them to the King by which it does appear that they were Religious and Ecclesiasticall Object 4 But it may be likewise objected that the Statute of the 31. of H. 8. does not discharge Chanteries or Colledge lands given to King Edward the sixth of Tythes Answer I answer That the reason of that is that because Colledges although they were Ecclesiasticall yet they were not regular And Coke 2. Rep. 48. B. but the Fryers of S. John of Jerusalem were Ecclesiasticall and Regular And it is not inconvenient that the King and his Patentees should have the benefit of the clause of the Statute of 31. of H. 8. in those lands given to the King by the Statute of the 32. of H. 8. as the Statute of Acton Burnell does provide that if the Extender upon a Statute Merchant does extend the Lands too high they shall answer this to the Conusee and the Statute of 23. H. 8. does order a new form of Recognizance to be taken before any of the cheif Iustices yet the Conusee shall have the said benefit of the Statute of Acton Burnell although it was made two hundred years before the other Statute And for Authority in this point Dyer 277. The Pryor of S Johns of Jerusalem with the Fryers two or three years before the dissolution did make a Lease of a Mannor for years which Lessee did pay Tythes to the Church of Rochester proprietary and after the dissolution the King did grant the reversion of the Mannor to one Stathome and to his Heirs in such ample manner as the Pryor had the same c. the Lease does expire If he and his heirs having the Mannor in their own possession shal be discharged of Tythes or not was the question in Chancery and on consideration had of the Statute of the 31. of H. 8. cap. 13. it seemed by the Lord Keeper Sanders Southcott and Dyer that they be discharged untill they let the same out to others to Farm And Pascha 11. Jac. in the Common Pleas in the case of Weney this case did come into question and argued by Coke Warburton Winch and Nicholls and they were divided in their Opinions Saturday the sixth day of June in the ninth year of the Reign of King Charles Between Francis Townley Esquire Plaintiff Edward Sherborne Executor of Richard Mountford deceased Executor of Thomas Challoner deceased Defendant Vpon hearing and debating of the matter as well on the fifteenth as the eighteenth of June last the Court being assisted with Mr. Iustice Hutton and Mr. Iustice Jones upon the Plaintiffs Bill of Review for the reviving and reversall of a Decree made in a Cause wherein the said Richard Mountford deceased Executor of Thomas Challoner was Plaintiff against the now Plaintiff and Thomas Foster Esquire concerning the summe of one thousand seven hundred pounds raised out of the Rents and Profits of certain Lands and Tenements in Linsted Ardingley and Worth in the County of Sussex in trust for the said Thomas Challoner during his Minority and which the now Plaintiff by the Decree of this Court was to pay in case the said Foster should fail to pay the same severall matters were offered by the Plaintiffs Councell for the reversall of the said Decree as namely that the now Plaintiff was decreed to pay the summe of one thousand seven hundred pounds as raised out of the profits of the Infants Lands settled upon an account made up by the said Forster with the said Thomas Challoner the Infant after he came to age whereto the Plaintiff Townley was neither party nor privy nor ever consented nor ought to be bound thereby And secondly that the said Plaintiff is by the said Decree made lyable to the payment of all the profits raised out of the said Infants Estate whereas he never received any profits at all and although he gave some Acquittances yet the same were onely for the three first half yeares and no more and were but to ballance an account the monies disbursed amounting to as much as
of five Steers and that certain Malefactors unknown to him did steal them from him at Broughton in the County of Bucks and that the 22 of Novemb. 13 Jacob. the Defendant pursued them to London and there did search for the Steers and found them in the possession of the Plaintiff and did require the Plaintiff to shew them unto him and how they came into his possession and because that the Plaintiff did deny to deliver them unto him and did refuse to permit him to see them and to shew how he came by them and that the Plaintiff gave him such incertain answers that the Defendant did suspect the Plaintiff had committed the Felony and the Defendant for better examination of the promisses and restitution of the said Cattel did inform the said Sir Thomas Bennet of the premisses and did procure a Warrant from him to bring the Plaintiff before him to be examined concerning the said Cattel whereupon the Plaintiff was brought before him and examined and because he could not make it appear how he came by them and for that he gave very uncertain answers and for that the said Sir Thomas did suspect him he did therefore binde him in a Recognizance of 50 l. to appear at the next Goal delivery and did binde the Defendant in a Recognizance of 20 l. to prosecute whereupon the 29 Novemb. 13 Jacob. the Defendant did exhibit a Bill of Indictment and did give evidence to the Iury that the Cattel were stoln from him and that he found them in the Plaintiffs possession and that he denyed the Defendant the view of them or to shew how they came to his hands whereupon the Iury found the Bill and thereupon the Plaintiff did appear at the next Goal-delivery the first Octob. 13 Jacob. and was there imprisoned until he was legally acquited which is the same imprisonment for Felony and procurement to be indicted and detainment in prison whereof the Plaintiff complains The Plaintiff confessed the Felony Replication but says that the 23 Octob. 13 Jacob. Thomas Burley was possessed of the said five Steers at Barnet in the County of Hertford and did then and there sell the said Cattel in open Market to the Plaintiff for 17 l. being a Butcher and that the said sale was entered in the Toll-book and the Toll payd wherefore the Plaintiff was possest of them and did drive them to his house in London the 24 Octob. 13 Jacob. and that the 21 Novemb. 13 Jac. he killed four of the said Cattel and then the said 22 of November the Defendant came to his house to search for the said Cattel and the Plaintiff did acknowledg to him that he had the said Cattel and that he had killed four of them and that he had bought them as aforesaid and did then also shew unto him the Steer that was then living and that the Defendant had sufficient notice that the Plaintiff had bought the Cattel in the Market and that although the Defendant did know that the Plaintiff had bought them and was not guilty of the Felony yet the Defendant out of malice and against his knowledg did charge the Plaintiff with Felony c. as he hath declared absque hoc that the Plaintiff did refuse to permit the Defendant habere visum of the said five Steers or to shew how he came by them Whereupon the Defendant demurred in Law Demur and shewed that the matter of Inducement to the Travers was insufficient and that the Travers was insufficient and the matter not traversable And I conceive that the Plaintiff ought to have Iudgment For in the 7 Ed. 4.20 In a false Imprisonment The Defendant said that before the imprisonment one B was killed by certain persons in whose company the Plaintiff was and the report of the County was that the Plaintiff was party to the Felony whereupon he arrested the Plaintiff for suspicion and did commit him to the Sheriff And Bryan did Travers the Indictment without that that the Plaintiff was in their company and without that that the report was so c. And Nidkam said there that issue could not be taken upon the report but upon the matter in fact For if men say in the Country that I am a Thief that is no cause to arrest me but matter in fact ought to be shewed which is Traversable whereupon issue was taken upon the first matter onely and in the ninth of Ed. 4. it is holden that a man ought to shew some matter in fact to prove that the Plaintiff is suspected And 11 Ed. 4. 46. in a false Imprisonment The Defendant who justifies upon a false imprisonment for Felony ought to shew some matter in fact to induce his suspicion or that his goods were in his possession of which the Country may take notice And in the 17 Ed. 4. 5. in a false imprisonment the Defendant justified because that A. and B. did rob another and did go to the house of the Plaintiff whereupon the Constable did suspect him and did require the Defendant to assist him in arresting him c. and holden there that they ought to surmise some cause of suspicion or otherwise the plea was not good 7 H. 35. Suspicion cannot be tryed because it is but the imagination of a man which lies in his own conceit 5 H. 7. 4. In a false Imprisonment the Defendant justified because that A. was poysoned and the common voyce and fame was that it was done by the Plaintiff whereupon he was taken and there it was argued if this were sufficient cause some said that he ought to shew some special cause but it was agreed in conclusion that it was but all agreeo that suspicion only is not enough without alledging cause of suspicion and says 2 H. 7. 16. and 7 Elizab. Dyer 236. In an action on the Case for calling one Thief the Defendant justified for common voyce and fame and adjudged insufficient but this with suspicion had been sufficient cause to arrest one and carry him to the Goal And Michaelm 38 and 39 Elizab. In the Common-Pleas in an Action on the Case by Damport against Symson for giving a false testimony adjudged that the intent of the swearers cannot be put in issue or tryed 2 H. 4. 12. B. 46 Ed. 3. 4. 2 H. 7. 3. In a Trespass the Defendant justified that he was robbed in the County of B. and did suspect the Plaintiff in the County of Stafford The Plaintiff pleaded De son tort demesne c. and it was there agreed that all the case was in issue And Tow said that it should be tryed by both Counties if they could joyn but he doubted if they could joyn but in the 16 of H. 7. 3. B. this case is reported to be adjudged that if the Counties could not joyn it was no plea because it ought to be tryed by both And so de son tort demesne shall be full of multiplicity and therefore it is no plea as in Crogates Case
defrauded for if no information be for the conversion within one year after or if the Convertor pay the penalty of 20 s. for the converting he may let it out to another And by pretence of the Defendants Councel he shall not be subject to penalty for the continuance But the Court agreed that he who made the conversion should be punished and so should every other occupyer of the Land who does not keep the Land in tillage Rot. 386. Michaelm 12 Jacob. Perryn against Audrey Barry IN a Writ of Error to reverse a Iudgment given in the Kings Bench for the said Audrey against the said Perryn in Debt upon a Bond of 100 l. made the 28 of April 5 Jacob. In which Action the said Perryn demanded Oyer of the said Bond and of the Condition which was That if the Defendant Iohn Perryn his Executors and Administrators should perform the Award of Thomas Clyff Roger Glover Robert Goodwin and Thomas Piborn Arbitrators as well for the said Perryn as the said Audrey Barry elected to Arbitrate of for and upon all and all manner of Actions cause and causes of Actions Suits Trespasses Debts Duties c. and all other demands whatsoever which between the said parties at any time until the date of the Obligation have been had moved or now depending so that the same Award c. of the said Arbitrators or any three of them of the premisses be made and given up in writing indented under their hands and seals on or before the last of May next that then the Obligation shall be voyd And the Defendant did plead that the said Arbitrators did not make any Award The Plaintiff did reply that the said Roger Glover Robert Goodwin and Thomas Piborn three of the said Arbitrators the 30 of May. fifth of King James did make their Award by writing indented That the Defendant should pay to the Plaintiff 57 l. viz. upon or before the 16 of June next 10 l. and the 29 of September next 17 l. and the 25 of Novemb. next 20 l. and the 25 of March next 10 l. And whereas the Defendant and Stephen Perryn were bound to the Plaintiff in 12 l. upon condition to pay 6 l. at certain days that the said Obligation should be to the Plaintiff in force as then it was and that she should have such benefit thereby as she might have had before and that the Plaintiff should acquit and save indemnified the Defendant from all Debts Duties and mony for which the Defendant with the Plaintiff was indebted or bound to Dingley Numan Clark Cater or any of them And that all Actions depending between the parties in any of the Kings Courts and all other Actions and causes of Action for any matter between them except the matters contained in the Arbitrement and the Obligation to perform the Award should cease c. And that if any controversie or doubt should happen between the parties for or about any word sentence or thing in the Arbitrement or of or touching the Award or any thing contained therein that the parties and their Executors shall perform such explanation and construction thereof as the said three Arbitrators should make in writing under their hands concerning the same And that the Plaintiff shall pay to George Write for drawing and ingrossing the said Arbitrement 6 s. 8 d. which Agreement the said three Arbitrators shall deliver to the parties the same day And although the Plaintiff did perform all yet the Defendant did not pay the 10 l. the 16 of June next And hereupon the Defendant demurred in Law and the Plaintiff joyned and Iudgment given for the Plaintiff whereupon the Defendant brought this Writ of Error And assigned the first Error because the submission was to four and Error 1 the Arbitrement was by three onely But all the Iustices and Barons did hold that the Agreement was well made notwithstanding for it shall be taken now to be a submission to four or any three of them and so was it agreed in the Kings Bench where this point hath been argued at the Bar oftentimes The second was that the Arbitrators did not make any Award for Error 2 the Bond of 12 l. in which the said Plaintiff and St. Perryn were bound to the now Defendant upon condition to pay 6 l. at certain days and the submission is conditional sc That the Award be made of all things c. and therefore they ought to have determined these matters For it may be that this was the principal cause why the Plaintiff did submit himself to the Award sc to be discharged of this Bond which perhaps was forfeited for not performing the condition with the penalty whereof he shall be now charged And although the Bond was made by the Plaintiff and another yet was it a cause of action depending between the Plaintiff and Defendant for she may sue him 2 R. 3. 18. b. If three men and another do refer themselves to an Arbitrement of all demands between them the Arbitrators may make an Award of all matters which the three had against the other joyntly and of each matter which every one of the three hath against the fourth and may award that every one of the three shall pay mony to the fourth Vide Comment 389. Chapmans Case 21 H. 7. 296. In debt by a woman as Executrix the Defendant said that I. S. her husband and the Defendant did refer themselves to Arbitrament who made an agreement and the husband dyed and the Court held that the debt of the woman as Executrix was extinct by this Arbitrement The clause that the now Defendant should acquit the Plaintiff of Error 3 all Debts wherein he was bound with the Defendant to Dingley c. is insufficient because there is no Christian name The breach is assigned for that the Defendant did not pay the 10 l. Error 4 upon the sixth day of June whereas the Award was that it should be payd upon or before the 16 day of June But all did agree that this was well assigned because that when it is alledged that it was not payd upon the 16 day it was not payd before the day The Arbitrators have awarded that the parties shall stand to their Error 5 Award for construction of the Arbitrement and of all things in the Award and of all matters concerning them for the future which is not in their power for all the Award ought to be made before the last of May. They award 6 s. 8 d. to be payd by Audrey to George Write for ingrossing Error 6 of the Award which is not within the submission 1. Because Write is a stranger 2. Because it is a thing agreed on after the submission Judgment And Hill 14 Jac. The Iudgment was affirmed and they agreed the last agreement to be void but that was not materiall for the Award was void only for that and good for the residue Rot. 100. Hillar 13 Jacob. Mande against French IN
delivery of the possession was made or not and if it were made by the Attorneys of the Bargainees that in Law shall be taken to be the act of themselves and so shall be pleaded and so was it adjudged in this Court Hillar 37 Eliz. in Jordans Case Vide Dyer 354. Object But it may be objected That Hawkins had notice of the Bargain and Sale and therefore the Defendant shall forfeit the Obligation as in Mallories 5 Rep. and Francis Case 8 Rep. 92. in an Entry on condition Answer I answer That the Defendant hath bound himself by the Obligation that Hawkins should deliver the possession to his Assigns and therefore he must take notice thereof at his peril as in 18 Ed. 4. 24. An Obligation upon condition that the Defendant should account before an Auditor to be assigned when he should be required and to pay the Arrearages and it was pleaded that he did account before such an Auditor assigned by the Plaintiff and was ready to pay the Arrearages if the Auditor would give notice c. and it was held insufficient for he ought to take notice at his peril also it is pleaded and found that Henry Powle as Assignee of the Plaintiff did make the request and if notice had been material the Defendant ought to have pleaded that he had no notice but by his Plea notice is implyed Judgment And after Iudgment was given for the Plaintiff by all the Court. Rot. 459. Michaelm 15 Jacob. Agard against Wilde and others IN an Action on the Case for that the Plaintiff is and was of good name and fame and yet the Defendants maliciously intending to cause the Plaintiff to be reputed a Common Barretor the 27 of November the 14 Jacob. did falsly and maliciously procure the Plaintiff to be indicted in this Court that he was a Common Barretor and a Disturber of the Peace at Edmonton in the County of Middlesex ad communem disturbationem inquietationem omnium inhabitantium ibidem To which Indictment the Plaintiff Jovis post Octab. Hillar 14 Jac. did plead Not guilty whereupon issue c. and the now Plaintiff was acquitted by Verdict and Iudgment to his damage of 500 l. c. The said John Wilde said That at the time of the Indictment he and William Smith were impannelled in the great Inquest for the said County and then in this Court were sworn to inquire upon their oaths of all Felonies Trespasses and misdemeanors done within the said County and so being sworn having evidence upon oath of good and loyal men given to the said Defendant and the rest of his Fellow-Iurors The said John Wilde and the other Iurors there and then upon their oaths for the Indictment mentioned in the Declaration did indict the Plaintiff for the said Offence mentioned in the said Declaration as they might very well do Vpon which Plea the Plaintiff demurred in Law And I conceive that Iudgment ought to be given against the Plaintiff for in as much as the Defendant was sworn of the Inquest and he and the other Iurors upon good evidence did indict the Plaintiff it cannot be presumed that he did this on malice but it was done in zeal to Iustice by reason of his oath and although it be true that he and the other Defendants did procure the Plaintiff to be indicted of malice without just cause yet now the oath of the Defendant hath discharged himself of the precedent wrong as may be proved by many Books 21 Edw. 3. 17. a. In a Conspiracy for indicting the Plaintiff of Felony the Defendant pleaded that he was sworn of the Inquest to enquire at the Leet of the Lord Zouch and that he and the rest of the Iury did indict the Plaintiff upon their oath and there Thorp said That Conspirators are always in fault and when one is of the Inquest and sworn to speak the truth that which he saith then is upon his oath and not of Conspiracy and there is no reason to accuse one of Conspiracy where he does nothing 7 H. 4. 31. In a Conspiracy to procure the Plaintiff to be indicted of a Trespass the Defendant said That they were impannelled for the King before the Iustices of Peace in the County of Norfolk and that which they did was upon their oaths Iudgment c. The Plaintiff replyed that there was no such Record and because the Defendants failed of the Record for two days Iudgment was given for the Plaintiff 8 H. 4. 6. The Defendants pleaded that they were indicted the Plaintiff replyed that they procured the Sheriff to return them Gascoigne There is no question but that the Iurors shall be excused of Conspiracy by reason of their oaths Vide 20 H. 6. 5. and 19 H. 6. 19. 4 H. 6. 23. And Nat. Brevium 115. C. and D. it is put for a rule that a Writ of Conspiracy will not lie against the Indictors themselves and if Iurors be sworn to enquire c. and after some of them be discharged by the Iustices they shall not be punished for any such matter because it was when they were sworn but if they conspire afterwards they may be charged with a Conspiracy And Stamford 173. if after the Conspiracy the Conspirators are sworn on the Inquest to enquire c. and they with the others of the Iury do indict him against whom they do conspire no Writ of Conspiracy will lie against them because such thing cannot be intended false or malicious because they do it on their oaths and that with others besides themselves The same Law where after the Conspirators are sworn and have spoken with their companions they are discharged by the Iustices yet by reason that they were once sworn and the Conspiracy therefore discharged And Old Book of Entr. 122. a. In a Writ of Conspiracy to procure the Plaintiff to be indicted of Felony one of the Defendants pleaded Not guilty and the other that he was one of the Indictors in the same manner as our Plea is without any Travers and the Plaintiff replyed nul tiel Record upon which they were at issue c. and in the same Book are four other presidents in all which the same Bars are pleaded And there is also another president where the same Bar is pleaded to which the Plaintiff replyed that the Defendant after the conspiracy of his Covin did procure the Sheriff to impannel and return him to be one of the Iury to the intent that he should indict the Plaintiff Also this Indictment is insufficient in other respects 1. The conclusion is ad communem disturbationem inquietatem omnium inhabitantium ibidem the which word ibidem does refer onely to Edmonton and so there is no common nusance but particularly to them of that Town 2. There is no place alledged where he was a common Barretor 3. The Indictment is that he was a common Barretor ita quod verisimilis fuit facere homicidium lites discordia alia gravamina
anothers land hath nothing at all to do with the Land any more then a meer stranger but only to put therein his Cattel and to let them feed there with their mouths and it is not his own Common until his Cattel have fed there 14 H. 8. 10. The Owner of a Common cannot grant the Common to anothers use Et 27 H. 8. 12. A Praecipe does not lye of a Common for it is not my Common untill my Cattell have eaten of it and therefore that which another hath is not mine therefore I cannot have a Praecipe against him who hath not that which I demand and in the 22. Assise 48. and 12. H. 8. 2. If a man hath Common in another mans Soile and a stranger puts in his Cattell there the Commoner shall not have an Action of Trespasse for although he hath Common yet the Herbage doth not belong to him neither can a Commoner do any thing upon the Soile which tends to the melioration or improving of the Common as to cut Bushes Ferne or such things which do much impaire the Common neither can he make a Fence or Ditch to let out the water which spoiles the Common But if he be utterly disturbed of his Common he may have an Assise or a Quod permittat and if any damage or annoyance be made upon the Land whereby he loseth his Common he may have an Assise And as the Commoner may not meddle with the Soile so cannot he meddle with any thing arising out of the Land or that doth grow or is nourished by the same otherwise then to have his Cattell to feed there and therefore it is adjudged Mich. 5. Jac. that a Commoner cannot kill Conies there but may bring his Action on the Case But I agree that a Commoner may distrain Cattell Damage feasant because their being there is a damage not onely to the Owner but also to the Commoner and a Commoner may abate a Hedge or a Gate that hinders him from comming to his Common wherefore I conclude this first matter that the plea as to that is utterly insufficient by the Law if there were not a speciall custome alledged by the Defendant And therefore it is to be considered whether this prescription alledged by the Defendant to hunt and kill Conies there for preservation of his Common be good or no. And I conceive it is unreasonable and not good because it is to the prejudice of the Owner of the Soile without any consideration And it is unreasonable for two causes first because it is too generall for the Defendant may hunt and kill as many Conies as he will for he doth not claim to kill a certain number that do surcharge the Common but generally the Conies there Secondly as this plea is the Defendant makes himself his own Iudge to kill the Conies as often and when he pleases Also it is against Law for it is to the destruction of the Inheritance of another which no person can justifie by custome or prescription unlesse for the benefit of the Common-weal 13 H. 8. 16. It is Law to pull down a House if the next house to it be on fire and so the Suburbs of a Town may be pulled down in time of War and if Enemies be on the Coast it is good Law to come upon another mans Land and make Bulwarks there for the publick good is preferred before any mans private benefit But when it is only for the private benefit of a man it is otherwise 43. Ed. 3. a. The Abbot said that he was Lord of the Town of A. and did prescribe that when the Tenant ceased for two yeares that he might enter untill he be satisfied his arreares And it was held by the Court to be an ill custome to put a man out of his Inheritance yet is that more reasonable then this case for the time when the Lord shall enter is certaine and the time that he shall hold the Land is also certaine and 19. Elizab. Dyer 357. A custome that all Tythes let or granted for more then six yeares of Land in such a Towne was held void by the Court because it is contrary to reason and to the liberty of the estate of him that hath a Fee And 9 H. 6. 44. B. Custome in a Leet that if the petit Iury do make a false Presentment and this found by the grand Inquest they shall be amended and it was held by the Court to be no good custome and against common right but if the custome were that if the petit Iury concealed any thing they ought to present them to be amerced this may be a custome And to prove that Conies are part of the Inheritance see Coke Rep. 7. in the case of Swans But it may be objected that this usage may have a legall beginning viz. That it was so agreed at the time of the grant or creation of the Common I answer That then it ought to have been specially pleaded for else it shall not be so intended as it is proved in the 35 H. 6. 28. Simon Eyres case where a Custome was pleaded in London that if the goods of any man be pawned to a Citizen for a debt due to him that he may detain them untill he be payed his debt and it was urged because that it may be good to bind the Debtor because it may be intended it began by his own grant but it was ruled that it shall not be so intended unlesse it be specially alledged And that a man shall not be Iudge in his own case is proved by 22. Edw. 5. 13. B. The Defendant pleaded that at another time he accounted to the Plaintiff in the presence of A. B. was found in arrear wherefore he was committed to prison there it was adjudged that the party himself could not commit him to Prison and that an Action of false Imprisonment did lie against the Plaintiff And Cook R. 8. Dr. Bonhams Case And in the 5 H. 7. 9. B. If one prescribes that if any Cattel be taken upon his Land damage feasant that he may distreyn them and put them into the Pownd until amends be made according to his own will this was held not good because then he should be his own Iudg which is against reason And in the 19 Edw. 2. gard 127. A Custom was alledged in Ipswich that when an Infant could count and measure that he should be out of Ward and holden to be voyd 13 Edw. the 3. where a Custom was alledged that when one could count 12 d. and measure a yard of cloth he may alien his Land and did aver that the Demandant was of such age but because he did not alledg the age in certain it was adjudged against the Demandant And Dyer 91. a. One grants to another all his Trees which may be reasonably spared agreed that this was a voyd Grant for the incertainty And in the 20 H. 7 8. B. If Cestuy que use of a Mannor does
April And whereupon the Defendant demurred in Law And I conceive that the Action will not lie for the Arbitrement is bond because the Arbitrators have exceeded their authority First because they have no power to discharge any action or duty accrued to any of the parties as Administrators Secondly because that by the Release the Obligation it self to stand to the Arbitrement is discharged Cook 10 Rep. 131. where Moor brought an Action against Bedell upon a promise to stand to the Arbitrement of A. and B. concerning all matters then in difference between them and that was the last day of Novemb. 24 Elizab. And the 10 of Decemb. the 24 of Eliz. they did agree that Moor should pay to Bedell certain monies and that Bedell should release all demands until the 15 of June 24 Eliz. and the Defendant in consideration of this submission did assume that he would not sue any Execution upon a Iudgment And the Plaintiff there assigned two Breaches one that he did not Release the other that he sued Execution And this was found for the Plaintiff upon a non assumpsit and entire damages given and then after it was reverst by Error because that the agreement as to the Release was voyd and therefore the damages being entire the Iudgment was erroneous And Michaelm 11 Jacob. Rot. 155. Staires against Wilde wherein an Action of Debt upon an Obligation to perform an award of and concerning all matters c. And they made an Award that one should pay to the other 3 l. and that each should release all Actions and Demands and the breach was assigned in not paying the 3 l. adjudged to be a voyd Arbitrement in all because it was to release all Actions at the time of the Release which is not within the submission And Pasch 42 Eliz. Rot. 211. Knap against Mâ—w where the condition was to perform an Award of certain things c. who did award that one should pay 20 l. to the other and that each should release all Actions and Demands and the breach was assigned in non-payment of the mony and it was adjudged that the Award was voyd And at last all the Court agreed that the Award was good as to all that was submitted to and voyd for the others and that the breach being assigned in a matter submitted to does give a sufficient cause of Action to the Plaintiff Wherefore it was adjudged that the Plaintiff should recover c. Hillar 13 Jacob. Smith against Whitbrook IN an Action on the Case for words viz. for saying to the Plaintiff the 4 Septemb. 12 Jacob. Thou meaning the Plaintiff art a Traytor and an Arch-traytor and I meaning the Defendant will hang thee or be hang'd for thee and after the 15 Septemb. 12 Jac. the Defendant did procure the Plaintiff to be brought before Sir Robert Cotton Knight and Robert Castle Esq two Iustices of Peace of the said County for Oyer and Terminer c. and did complain to the said Iustices that the Plaintiff had said and published divers Traytorous words of the King by reason whereof the Plaintiff was committed to the Goal of the said County by the said Iustices and there was imprisoned and did so remain until the next Sessions of Peace of the said County holden the 4 of Octob. 12 Jacob. before Robert Bell Knight Robert Payn Knight and other Iustices c. and the Plaintiff was compelled to finde Sureties for his appearance against the next Sessions to answer to such things as should be objected against him on the behalf of the King and in the mean time to be of good behavior c. At which next Sessions holden the 10 Janu. 12 Jac. before the said Iustices and other Iustices the Plaintiff did appear upon which the Defendant the same day and year in the publique Sessions did say of the Plaintiff I meaning the Defendant do accuse Robert Smith meanining the Plaintiff absolutely whereupon the Plaintiff was committed to the Gaol by the said Iustices and there remained in prison for the space of a month whereas the Plaintiff did never speak and Traytorous words against the King nor had committed any Treason against the King and this he layd to his damage of 1000 l. The Defendant pleaded that before the time wherein the said words are supposed to be spoken viz. the third of Septemb. the 12 Jacob. the Plaintiff having speech of the King did speak of him these Traytorous words The King meaning our Lord the King is a scupry King and so justified the several words and also the procurement of the Plaintiff to be brought before the said Iustices The Plaintiff by Protestation saith that he did not speak the said words of the King and for plea did demur in Law and the Defendant joyned Judicium And after Iudgment was given for the Plaintiff without reading the Record or having any argument because that the justification was insufficient and the Record was not read because it imported Scandal to the King Cooper against Smith IN an Action on the Case for words scil Thou and Waterman did kill thy Masters Cook meaning one Yarnton late Servant of Francis Dingley Esq and thou wast never tryed for it and I will bring thee to thy Tryal for it The Defendant pleaded Nor guilty and it was found for the Plaintiff and it was moved in Arrest of Judgment that it was not averred that the Plaintiff had a Master and that Francis Dingley was his Master but resolved that it need not be aveâ—â—â—d for if he had no Master yet it is a Scandal as if one should say Thou hast stoln the Horse of I. S. there is no need to aver that I. S. had a Horse and if everment be necessary it is averred here when he said Thy Masters Cook and there it is averred that the Cook was servant to Francis Dingley and it follows also that Francis Dingley was Master to the Plaintiff Judgment Wherefore Judgment was given for the Plaintiff Trinit 14 Jacob. Weal against Wells IN an Action on the Case for that the Defendant the 22 of Novemb. the 13 of King James crimen Felonie querenti false malitiose imposuit and did cause him to be arrested and taken for the Felonious taking and stealing of five Heifers of the Defendant and caused him to be brought before Sir Thomas Bennet one of the Iustices of Peace c. and out of malice also at the Sessions of Peace at the Guild-hall London before the Major and other the Iustices of Peace c. did cause him to be indicted maliciously and falsly for the Felony of stealing of five Steers the 23 Octob. 13 Jacob. and did cause him to be detained in the Gaol of Newgate until he was legally acquitted at the Gaol delivery the first of December the 13 Jacob. to his damage c. 100 l. and did aver the matter in the indictment to be false The Defendant said that the 18 Novemb. 13 Jacob. he was possessed
d. imposed the third of December the same year by the Master and Wardens and nine Assistants All which sums do amount to 6 l. 13 s. 4 d. That the sixth of December the 15 Jacob. the Plaintiff had notice of the said sums so imposed and although he thereupon payd 19 s. parcel thereof yet he did refuse to pay the residue which refusal the 16 of December was duly proved before the said Master and Wardens wherefore the 16 of December 15 Jacob. the Master Wardens and Assistants taking with them John Sowland a Serjeant of the Mace did take the said ten Hides in the said City in the name of a Distress and took them away detained them for thirty days after the said Distress and because the Plaintiff did not pay the residue of the said 6 l. 13 s. 4 d. nor agreed for the same the said Master and Wardens and T. B. C. G. M. A. T. K. J. G. M. B. K. J. W. T. and R. T. being the major part of the Assistants after the said thirty days viz. 17 Jan. 15 Jacob. at the said City did cause the said Hides to be appraised by the oaths of R. S. c. six approved men of the said City who appraised them at 7 l. and the said Defendants and Thomas Payn and the major part of the said Assistants did sell them for 7 l. and they said that the surplusage amounted to 25 s. 8 d. and no more which the said William and Thomas Payn with the assent of the Master and greater part of the Assistants before the Suit to wit the seventh of January in the same year at the said City did offer to pay to the Plaintiff but he refused to accept thereof Absque hoc that the Defendants are guilty at Tiverton or any other place out of the said City of Exeter Vpon which Plea the Plaintiff demurred And I conceive that Iudgment ought to be given for the Plaintiff And herein I will not stand at this time to argue whether the Custom will warrant this By-law because there hath been a resolution in the Case in the 8 Rep. fol. 125. for London onely I observe that the Customs of London are confirmed by Act of Parliament but so are not the Customs of Exeter But admitting that the Custom will warrant this By-law to restrain a legal Trade or Art within the said City yet I conceive this By-law is utterly voyd for three causes and if it were good yet have not the Defendants pursued the same in taking and selling of the goods and that for two causes And as to the first the Defendants have exceeded their Custom in the extent of this By-law as to the place for the Society of the Art is alledged to be within the City of Exeter and then they alledg the Custom to be That they have used to make By-laws for the better Government and profit of the said City so that all the Custom is confirmed to the City but the By-law does exceed this for it is That none shall make sell or offer to sell any Shooes c. within the City or the County of Exon the which is not warranted by the Custom as in 5 Rep. Chamberlain of London's Case it was ordained That if any Citizen or stranger should send any Cloth to sell within the City before it shall be brought to Blackwell-Hall to be viewed and searched this is resolved to be good although it do binde a stranger but the reason thereof is given because the offence is committed within the City whereupon I observe that they can make no Order to extend without the City This By-law does exceed their power in the things prohibited and that in two things First That none shall make any Boots Shooes c. within the City or County whereby every man is restrained to make such things for his own use or for his Master or Family and such restraint is clearly against Law and Reason for although that Companies of Trades in Cities and Towns are allowed by the Law yet they cannot by any Custom restrain a man from making any thing pertaining to their Art for his private use and therefore if this By-law had been That none should use the Art of a Shoomaker within the City this had been good but to restrain any that he may not make Shooes for himself within the City this is voyd Vide Cooks 8 Rep. 129. Wagons Case where it was resolved That he might make Candles for his own use and so every one may bake and brew for their own use Furthermore the Defendants have not alledged any Custom That none shall make any Shooes c. within the City c. except those of the Society but onely that they may make By-laws for the good government and profit of the Society of the Art and the making of Shooes for ones private use is nothing concerning their Society and this is proved by the resolution in the said Case and by the Statute of the fifth of Elizab. That none shall use any Art in which he hath not been educated as Apprentice for seven years yet it is lawful for any to bake or brew or to make any manufacture for his private use without any offence to the Statute So Cooks 8 Rep. 125. Sir George Farmers Case He as Lord of the Mannor of Torcester did prescribe to have a Bakehouse and no other Baker should sell bread there this was a good Custom but to restrain any from baking for himself cannot be a good Custom And the Case of the Taylors of Ipswich 11 Rep. fol. 55. Order That none should use the Trade of a Taylor until he be presented to the Master and Wardens and allowed by them yet one may make Clothes for his Master and Family in case the said constitution were good This By-law does restrain other persons to use their Arts for it is That none shall do any thing pertaining to the Art of Shoomakers and it is apparent that many things do pertain to the Art of a Shoomaker which are to be done by other Artificers for all things belong to the Art which of necessity must be used with the Art and without which the Art cannot be used as Leather which is to be made by the Tanner Lasts which are to be made by the Last-maker Auls by the Smith Threed and divers other things and all these by this By-law are prohibited not onely to be sold but also to be made by any not being of their Society The penalty imposed by this By-law is not warranted by the Law nor by their Custom for that ought to be reasonable and ought to be exprest to the end that the Court may judg whether it be reasonable or not and therefore it is resolved in Wagons Case That the Pain ought to be reasonable 1. In respect of the manner thereof and therefore it ought not to be by imprisonment for that is against Magna Charta cap. 29. as it was adjudged in Clarks Case