tax cannot be made by the Church-wardens But by the greater number of the Inhabitants it may and a Prohibition was granted But by Yelverton If it be cited by ex Officio a Prohibition will not lye For so it was ex insinuatione c. For the Wardens came and prayed a Citation c. But by Richardson Harvey and Crook privately a Prohibition will lye in both Cases Commin against Carre COmmin brought Trespass against Carre for taking of two Heifers The Defendant pleads that the King was seised of a Wapentake in Yorkshire And had so large Iurisdiction as another Turn of the Sheriff And then he said that the Plaintiff plaid at Cards within that Wapentake in the House of such an one and said that that is contra formam Statuti 33 H. 8. ca. 9. And said then that he plaid at Cards another day And thirdly that he broke a Pin-fold c. And that the 24 Martii 21 Iac. warning was given to the Plaintiff he being an Inhabitant for a year before within the Iurisdiction of that Court that he ought to appear the last day of March following And said that the Court was then held and those offences were presented and that for his not appearing he was amerced 12 d. and for the playing 6 s. 8 d. and for the breaking the pound 3 s. 4 d. And now for all those amerciaments he distrained by vertue of a Warrant of the Steward of the Court and does not say what warrant And then justifies the selling of the said Heifeâ—s for 20 s. and that he retained 17 s. and offered the surplusage to the Plaintiff Atthow there is not any thing to prove any sorfeiture by the Plaintiff For the Statute is upon two branches First That no Common house of play be kept Secondly If any use those Houses and play c. That it is not said that that is a Common house of play But then it will be said that it is alleged contra formam Statuti and that will imply that But now that is not sufficient For if any inform contra formam Statuti If by his own shewing it does not appear contra formam Statuti He shall not have Iudgement Richardson A Common house of play is a House for lucre maintained for play And there the Law makes a difference between Common persons and private c. But contra formam Statuti will not serve For the offence ought to be alleged fully Yelverton made four causes of Distress selling the Distress If it be good for any it is sufficient And if there be a Iustification for three causes in Avowry If it be good by any It is sufficient 9 H 6. But so it is where a trespass c. Harvey A Iustification in a Leet That he distreyn'd and sold and delivered the overplus to the party in the Case of the King it is good But in the Case of Common persons I doubt whether he may sell And in the Case of the King he ought to deteyn the distress for 16 daies before sale But by Yelverton and Hutton All Leets are the Courts of the King and they may be used as the Courts of the King And it was said afterwards by Richardson That the Statute was grosly mistaken And that divers amerciaments were wanting And so Iudgment for the Plaintiff Traver against the Lord Bridgewater et Ux. TRavers brought an action upon the Case against the Lord Bridgewaters and his Wife Administratrix of T. D. her Husband deceased For that the said T. D. in consideration that the said Travers tradidisset deliberasset to the said T. D. divers Merchandizes he promised to pay c. The Defendant pleads that the said T. D. non assumpsit And 't was found for the Plaintiff and pleaded in Arrest of Iudgement that it was no Consideration And adjudged for the Defendant For when he said tradidisset deliberasset That they might be his own Goods Otherwise if he had said vendidisset de novo E. 4. 19. Accordingly Palmers Case IT was held by the Court If a man assume to pay mony due in consideration to forbear to sue him paululum temporis And if he forbear for a convenient time It is a sufficient consideration upon which to ground an Assumpsit The case was between Palmer and Rouse P. 40 El. rot 537. The Plaintiff counts that I. S. was indebted to him upon an Obligation and he forfeited it and dies and made the Defendant his Executor And that the Plaintiff was forced to sue the Obligation and in consideration of the premises The Defendant assumed that if the Plaintiff would forbear him pro brevi tempore that he would pay him And the Paintiff fidem adhibens c. forbore 4 years to sue him and said that the Defendant had Assets The Defendant said absque hoc that he had Assets And upon that the Plaintiff demurred and adjudged for him For the alleging of Assets in the Count is surplusage And now the consideration was sufficient for he had counted he had forbore for four years Panton against Hassel PAnton brought an action upon the Case of trover and conversion against Hassell who declared That whereas he was possessed of certain Iewels 16 April he lost them and 20 Ian. they came to the hands of the Defendant and he converted them And this was supposed to be done in Huntingtonshire The Defendant pleads that time out of mind c. the City of Bristow is and hath been a Market overt in Shops et locis apertis and the Defendant bought them in his Shop And further shews that he is a Gold-Smith by reason of which he was possessed of them as his proper Goods and converted them to his own use which is the same conversion Hutton When the Defendant had supposed an absolute property by the sale in the Market overt that Conversion after cannot be a Conversion of the Goods of the Plaintiff For of necessity there ought to be a mean time between the change of the property and the conversion Also the Custome is naught for he ought to say in locis apertis shops apertis For the cause of the change of the property is Because every one may come thereto and see if they are his Goods and there challenge them So that by some intendment in this prescription that Shop might he a private Shop And although that it be averred in facto that that Shop is apert Yet when the prescription is mislayed the Bar is naught For if Issue be taken que fuit shop apert That is not a good issue Also he prescribed that there was a Market overt every day except Sunday and Festivals and that it was not Sunday or Festival where it should have been nec Festival per que c. Harvey said That word apertis shall have relation as well to shops as to locis Hutton at Newgate Sessions seven of the Iustices being present there was a Question That if a man having Cloath
by subtile and false means thou hast been the death of 100 men For before verdict against them and the words were that he was their death by false verdict As to the Bar. That is naught it appears by the Bar that the Defendant was not called to answer the Articles aforesaid For he said the Plaintiff would not proceed upon them Then the Plaintiff might be Iudge witness and party and not oppress me c. And it is not Iustice for one Iustice of Peace to refuse to proceed As here If Articles be given to him the Witnesses perhaps are not ready and although he request the Plaintiff to proceed it is not the Office of a Iustice of peace to promote a Cause For the words continue he justifies scribi fecit And that is no justification to contrive which is a word well known and apt to signifie the framing or inventing of Articles c. And the words are in the Declaration and did then oppress me And there is nothing answered to then or justified to it Pasc 24 Kings Bench Actions for words in London and the Defendant justifies the words in S. the Plaintiff demurred and had Iudgement M. 27 Eliz. Kings Bench. An Action for calling the Plaintiff Thief The Defendant pleads the Plaintiff guilty in 3 several Felonies And issue was taken de injuria sua propria absque aliqua tali causa And the Plaintiff was found guilty of two Felonies but not of the third And it was adjudged for the Plaintiff because he failed of his tali causa upon which he concludes c. Bramston at an other day on the contrary And said that the Declaration is not good First it must appear plainly that the Plaintiff was a Iustice of Peace at the time of the speaking of the words and implication will not serve I agree that necessary intendment shall be sufficient And if there might be other intendment it is not sufficient 13 Eliz. Dyer 304. Mich. 20 Jac. Kings Bench. Arundel Plaintiff Mead and Harvey Defendants in an Ejectione firmae brought upon a Lease made for 5 years if a Woman should so long live And after verdict for the Plaintiff It was moved that the Declaration is not good Because that it was not averred that the Woman was living at the time of the Ejectment But it was adjudged that the words virtute cujus he was possessed and termino nondam finito he was ejected supplies that Dyer 254. Debt upon a Lease for years rendring rent the Plaintiff declars upon the lease by him made to A. who devises it to the Defendant and he enters And it was objected that the Declaration was naught because that he does not shew the assent of the Executors and it is not said virtute Legationum c. But that he entred and that may be by any other Title and for that naught And in our Case that he was a Iustice of Peace many years before and at the time of the speaking And the words premisor non ignorant the Defendant intending to remove him c. does not aid it For it might be meant when he was not a Iustice of Peace It is not but by argument that he was then a Iustice of Peace Secondly The second Objection The second words are not laid to be spoken of Roberti Hitcham aforesaid It is to be observed that the words And he did then c. be distinguished in time For it is postea ad tunc et ibidem By which it ought to be meant spoken at another time of the same day and then all the subsequent words not actionable And it is not sufficient as it was objected that he was a Iustice of Peace when the Injuries were supposed to be done There are two reasons why a Iustice of Peace shall have his Action for words First That if the words be true they expose him to punishment or pain and either of them is sufficient cause to make the words actionable And when the words are such that they do not expose the party to punishment but only discredit him in his profession and make him subject to be removed they are not actionable unless spoken at the time that he is a Iustice of Peace And here the words are of such nature But words which expose him to punishment for a misdemeanour when he was a Iustice of Peace are actionable although spoken after he was removed Secondly If the Declaration was defective in substance for want of a precise shewing that he was a Iustice of Peace at the time Nothing in the Bar will help it But defect in circumstance may be so aided scil by the Bar as time or place failing in the Bar may be supplied by the Bar. 6 E. 4.16.6 E. 4.2.7 Rep. 24. Buts Case Mi. 37.38 Eliz. Badcop against Atkins Thy Father hath stollen six sheep It was moved in arrest of Iudgement Because it was not shewn in the Declaration that the words were spoken to the Son or in his presence of his Father the Plaintiff And as to that it ought to be intended For it is not sense to say thy Father to any but the Son Secondly the Defendant admitted it in his Bar. But resolved by the whole Court it is not necessarily implyed that they were spoken to the Son And then it was agréed by all that the Declaration was defective in substance and is not aided by any admittance in the Bar. Thirdly The third Exception here is there wants an Innuendo to make the Declaration good where the place is necessary to make the words actionable there ought to be an Innuendo for the place c. Barham did burn by Barn there no Innuendo will make the words actionable But if there be a Communication of the Plaintiffs Barn and that it was full of Corn there with an Innuendo horreum praedict will serve H. 37 Eliz. Banc. Roy rot 334. Thou art a Thief thou hast stollen half an acre of my Corn Innuendo half an acre of Corn severed Adjudged that the Innuendo does not serve So for Slander of title Entties fol. 36. A. was seised of the Mannor of S. and there was a Communication of that Mannor of S. And the Defendant said I have enough in my Study to make I. S. Heir to the Mannor of I. S. Innuendo manet praedict de S. It is sufficient Secondly The words are not actionable Witnesse Iudge and party is not a scandal without a violent construction of the words To say he did oppresse me That of a Iustice of Peace without more is hard to maintain an action for it does not appear that he was damnified And words of themselves which are actionable joyned with others are not sometimes actionable If one says of a Lawyer he did reveal the secrets of my Case that is not actionable for he might reveal it to a Iudge But if he said Goe not to such a one he did reveal the secrets of my case that is actionable Suegos case in the book
the Civil Law And it was resolved First that the King by his Charter deprives the subject of his Liberty and Priviledge of Tryal As he cannot by his Letters Patents alter the nature of Gavelkinde Land but by prescription he may alter it in particular places As 9 H. 6. 44. In corpus cum causa to the Chancellor of Oxford was certified that the prisoner Pro extensione detentus fuit convictus And an exception was taken for that that he should have been indicted and convicted and it was answered that it was Mos Universitatis And by Hutton Iustice That custom was to be intended to be by prescription But so the Charter is confirmed by Act of Parliament it is as good Secondly that there is a good cause of action in the Chancellors Court. For Wilcocks who is one of the parties is a Scholar and the Charter was only made for the ease of Scholars that their Studies might not be interrupted by Sutes in other Courts But then he ought to be a Scholar resident in the Vniversity at the time of the Sute commenced there And he ought to be only one of the parties And for that if another be joyned with him he shall not have the priviledge or benefit of the Charter as it is 14 H. 4. 21. and by Richardson chief Iustice that is not a priviledge which may be waved for every person may Recusare jura introducta pro se But that it was an exempt Iurisdiction and differs where the priviledge goes to the person As if a Clerk in his Court will sue in another Court or suffer himself to be sued that is a Waver of the Priviledge Thirdly that a Proeedendo shall not be granted for that the Charter is not pleaded for the Iudges give Iudgement of the Record and the cause of their Iudgement ought to appear by pleading of the Record And also a prohibition is granted where by Demurrer or by Pleading and not by verbal surmise there ought to be a discharge And in the case of a prohibition It is not like the Case of 35 H. 6. 24. Where Conusans is one time allowed by Charter shewn and another Record there should be allowed without demand without other shewing But Yelverton Iustice to the contrary That it might be remanded upon pleading of the Charter And he said that there was a difference where the suggestion was upon matter of Fact as prescription c. Where an issue may be taken there it ought to be pleaded in writing which appears fully by the mean of the Court and not by suggestion Fourthly it was resolved that a prohibition may be granted in case where the Court cannot give other remedy for the ease of the Subject who is the party as it was adjudged in the Court of Requests Vpon the custom of London concerning Orphans a prohibition was granted and yet no remedy at Common Law was afterwards to be expected Trin 5. Car. Fawkner against Bellingham FAwkner against Bellingham in a Replevin The Avowry was for that that the Defendant was Lord of a Mannor and of Lands which were Chauntry Lands and held of him by Rent and other Services And after coming to the Crown by the Statute of 10 E. 6. cap. 14. Who granted it then over by Letters Patents c. And now the Lord distreins for Rent and avows that he had not seisin within fourty years And whether seisin was requisite for him who made the Conusans was the sole question in the Argument First for that that it is a new Rent created by the Statute of 1 E. 6. For when that Land is granted to the King by Parliament yet the King hath operation upon it and may dispose of it Secondly that the Land passed from the Priest and others by their assent confirming it And it is a Grant of the Seigniory by the Lord himself unless the saving hinder it But so by the Grant the Rent is extinguished And the saving is so a creation of a new Rent 1. rep 47. Altomeoods Case And there is diversity between a Rent-service viz. where the Tenant grants Land to the King and he grants that over He cannot distrein upon the Patentee for it is distinct from a Rent charge Stamford prerogat 75. Mich. 20. E. 3. 17. And so it is ordered by the Statute de Religione when he enters by Mortmain that he ought to revive the Services Stam. 27. If the King enters upon my Tenant there a Petition of Right lies Dyer 313. 10. rep 47. By the saving in the Statute of Wills c. A primer Seisin is given to the King de novo where he ought to have it before And then being a new Rent no Seisin is requisite Secondly the second reason is for that there is a new remedy and then no matter whether it be old Rent or new Rent Finchden A Rent granted out of White-acre and a distress out of Black-acre the Rent yet remains and there is one thing part of the Rent another of the remedy Because the Rent is only altered in quality Dyer 31. There our Case directly Now the Statute of Limitations is a Statute for the good of the Common wealth to settle inheritances and possessions And it should be expounded liberally Then if a scruple be of the Act it ought to be expounded benignly And so it is of all other Statutes which settle possessions Always shall be expounded favourably for the ease and benefit of the Tenant and Lord. And for that adjudged That a Copy-hold and Leases for years are within that Statute And the Statute of 32 H. 8. 11. rep 71. binds both King and Realm because it is for the publick good Owen against Price before BRamston argued for the Defendant I agree that Lease to be a Lease in remainder and I admit also that that Lease is warranted by the Statute 10 Eliz. For that that he is not punishable of waste And the case admits two questions whether it be a void Lease at Common Law And First In respect of the limitation Secondly there is not any Livery in the Case Wherefore first of all it had been said a Frank Tenement cannot pass from a day to come in case of a Grant 38 H. 6. 34. 8 H 7. Claytons Case 5. rep It had been agreed that a Livery made the first day by himself or by his Attorney should not be good And moreover if by his Attourney after the day if his Grant may be granted the same day it is not good And then I hold that the date of the Grant of Attourney is not material Trin. 43 Eliz. rot 402. Conibar It was resolved in such a Case as that is That the Livery is not good And the reason was that the Livery had not relation to the Deed which was void in Law Bucklers and Binsluns Case The release was made 1 May as this and executed by Attourney and by Attourney authorised the same day the second of May. And it was adjudged
seisin Et si vous alleadger ceo uncore nest traversable mes avowry do et ee sur le matter Et Incroachment ne avoyer issuit lou measnalty nest conveigh forsque al surplusage seisin nest traverseable Incroachment ne noier Et pur ceo est hors de 32 H. 8. Et ceo ne scavoy Cases lou de rent seck est distrainable de commrn droit seisin Poet ee traverse si foret alleadge Et si ascun puist ee monstre jeo ne doubt mes ceo voet ee alleadge per ascuns des freres come rent sur partition attend sur le terte c. issuit cest rent seck que est sane per cest Stattute ala one le mannor et est parcel de ceo come 21 As 23. rent seck est parcell est mannor ou auterment le defendant ad Title al ceo c. Objection est que est cy veiel que le comencement de ceo ne Poet ee conus et est nul fait de cest rent Et coment ne doies alleadge seisin de ceo in Avowry uncore jeo poy monstre que navera seisin deins 40 anns c. Respons est que cest rent comence dee rent seck per primo Ed. 6. cest Stattunte avoit mesme le force a preserver cest rent hors de 32 H. 8. come un fait ou record ad e'e Et le Stattute al rent est sicome le prophette que raise de mort le fitts dl widdow done vie al lui de fitts fait in vie devant mes uncore bien Poet ee dit que le prophet done vie al lui issuit cest rent fuit occide per les premises del Stattute per 1 E. 6. le saueing sa it ceo un in vie que est le al me de cest rent Et pur ceo ceit saluo do et ee monstre in avowry pur cest donque 7 E. 4. 27 29. E. 44. St le comencement del Suory Poet ee monstre ne do et ee alleadger seisin issuit de rent et coment que jeo doye in mon Avowry monstre que la fait ou rent service devant cest Stattute uncore ceo doye rely sur le saueing de cest Stattute 35 H. 6. 3 4. 22 H. 6.3 Avowry 73. Si Suor confirme a tener per meinder services si soiet recite in Avowry est sufficient sans seisin nul inchroachment pius tiel Confirmation noyer donque est un fait original ou un confirmation sur in case dee hors de ceo Stattute de 32 H. 8 issuit voile le Stattute de primo E. 6. Crook ad agree si le saueing ad ee particular de 18 al Suor Windsor que est que cest case nest deins 32. donque averment fait ceo cy certain Et si le saueiug est ee al le Suor Windsor All rents by which the Land is held of him donque avoit est bone et hors de 32 H. 8. Objection est icy est generall que nihil certi implicat c. mes certum est quod certum reddi potest come les cases mise cite per Hutton quel jeo conceave auxi sur le matter al primes le Roy graunt easdem Libertates que S. avoit Poet ee fait certain per averment que S. ad tiels Liberties c. Objection 32 H. 8. do et ee prise liberallmentâ—… Voier que all Avowries Conusances mes le Stattute est de petit faire car si replevin soiet convert al trespasse est hors de de cest Stattute 10 H. 6. 1. Long 5 E. 4. 87. Et in trespass poier traverse le tenure non solement le seisin hors dl Avowry in que le Avowant est Actor c. Objection 32 H. 8. suit sait pur le repose quiet des homes c. Respons solement in Actions deins cest Stattute in eux le Stattute avera liberall Construction que urors ne serra inveigle quel daunger cest icy pur ceo que le Stattute fait Title ee Accounter est nul mischief car poies traverse le tenure ou seisin devant le Stattute de primo E. 6. c. Mes adee dit que Stewards books Courts Rolls ou Bailiffs accounts poieat ee monstre port eins pur Title al rents extinct per leases ou c. uncore jeo die que ceux matters doient ee laise al Iury tiels choses in eux mesmes sout bone Evidences nous veiennus 7 Rep. Farmors Case que le stattute de Fines est avoid per fraud agreement des parties ad ee confesse poiet toller Le Case hors de 32 H. 8. come release Executrix of Henry Hassel IOne Hassel makes a Lease to H. Rassel of 3 Closes for 20 years if he should so long live Henry Hassel dies and debt is brought against his Executor for rent reserved upon that Lease who pleads that before the day of payment he assigned two of the Closes to a Stranger And upon demurrer Iudgement was given for the Plaintiff For if there had been an assignment of Henry If he did not give notice to the Lessor in acceptance of the rent he shall be charged Quod nota Iudgement in Debt IF Iudgement be given in debt and a Scire facias brought against the Executor who pleads ne unque Executor ne unque Administrator c. And it was found against him yet it was agreed by the Court that the Execution shall be de bonis Testatoris tantum For that that the Execution shall have relation to the Iudgement And the Scire facias is to make known that they had not Execution upon the first Iudgment which extends to the goods only of the Testator And so it was said by Moyle Prothonotary that it was rul'd in 5 lac in this Court If a Iudgement be given in Debt and the mony is paid to the Attorney of the Plaintiff Although that the mony miscarry with the Attorny yet the payment is good But if a Scrivener is imployed generally to put mony to use for a year and the mony is paid to the Scribener who breaks or does not pay the mony The payment does not excuse the party But if he receives it by special Command c. that is a good cause of Equity In Avowry IN an Avowry for Dammages feasant the verdict is found for the Avowant And a Returno habend granted for the Cattell and a Capias ad satisfaciendum for the Costs and Dammages are payed The Sheriff cannot execute the Returno habendo But if it be executed and Costs afterwards paid upon the Returno habendo A Writ De si constare poterit shall issue to the Sheriff for delivering the Cattel upon a surmise and payment of the costs c. A Prohibition DAvenport moved for a Prohibition for that that an Executor who resided within the Tower which is a peculiar Iurisdiction as it was surmised was sued in the Prerogative Court
appear gratis if he will Warner against Barret ELizabeth Warner libells for a Legacy in the Spiritual Court against one Barret who moves for a Prohibition Because he had there pleaded plene administ and proved that by one Witness and they would not allow it Richardson before the Statute of E. 6. The proper Sute for Tithes was there and they allow one Witness to prove payment a Prohibition shall be granted And he put Morris Eatons Case in the Bishop of Winchesters Case Where it was ruled if the Spiritual Court will not allow that plea which is good in our Law a Prohibition shall be granted as in Case of Tithes And he said that the Case of a Legacy is all one Crook When one comes to discharge a thing by due matter of Law and proves it by one Witness If it be not allowed no Prohibition shall be granted there Richardson Our Case is proof of plene Administ pleaded which goes in discharge But if there be enough pleaded which goes in discharge and proves that by one Witness and not allowed A Prohibition shall be granted Hutton said that properly for a Legacy the sute is in the Ecclesiastical Court although they may sue in the Chancery for it yet the proper Court is the Ecclesiastical Court And they said they used to allow one Witness with other good circumstantial proofs If they be not in some criminal Causes where of necessity there must be two Witnesses In one Hawkins Case Farm or of a Propriation libells for Tithes of Lambs for seven years And there he proved payment by one Witness and a Prohibition was granted for not allowance Yelverton There may be a difference where the Sute is meerly Ecclesiasticall for a sum of mony as for a Legacy there the payment of the legacy is of the nature of the thing And the Ecclesiastical Court shall have Iurisdiction of the proof and matter But if one gives a legacy of 20 Oxen And the other pleads payment of as much mony in satisfaction there they cannot proceed but upon Common law For that that the legacy is altered And if a proof of one Witness is not accepted a Prohibition shall be granted For now it is a legal Tryall 35 H. 6 If the principal is proper for their Court the accessory is of the same nature Also the Sute is commenced for a Legacy and the other pleads plene administ There they proceed upon the Common law For they sometimes take that for Assets which our Law does not take It was adjudged in the Kings Bench that a proof by one Witness of a Release of a Legacy was disallowed a Prohibition shall be granted Crook In this Case a proof of setting out of Tithes by one Witness a Prohibition shall be granted Hawkeridge's Case IT was agréed by all in Hawkeridge's Case That in a forcible entry or Trespass brought against one If the Defendant is found guilty by verdict and before Iudgement the Plaintiff releases to him Because that by that the Plaintiff is barred The King is also barred of his Fine Falkners Case ATthow Sergeant said That if these words were wanting in a Déed In cujus rei Testimon That the Déed is not good And he said that all Covenants Grants and Agréements which came after those words in a Déed are not of force nor shall be pleaded as parcell of the Déed It was observed by the Court That the Wife of a Duke Earl or Baron in all writings they shall be named Ladies But the Wives of Knights shall be named Dames And it was likewise observed that if a Wife of a Duke Earl or Baron takes a new Husband of a more base degrée That she loses her name of Dame or Lady and shall be named in every Writ according to the degrée of her Husband As it happened in the Case of the Lady Johnsons Case IT was said if a Parson leases his Rectory for years or parcel of his Glebe reserving a Rent and dies his Successor accepts she Rent That acceptance does not make the Lease good Because by his death the Franktenement is in abeyance and in no Man And also a Parson cannot discontinue And by consequence That that he did without Livery is determined by his death And it is not like to the Case of an Abbot Prior or Tenent in tayl Joyce Norton and Thomas Ducket against Harmer IOyce Norton and Thomas Ducket Plaintiffs against George Harmer the Vicar of c. In a Prohibition the Libel was for Wood imployed in Hedging and for Fire-wood Issue was joyned that there was in the Parish a great quantity of Land inclosed And that they used to take Wood for Hedge-boot and Fire-boot and they were discharged of Tithes in consideration that he payed Tithes in kind of Hay and Corn c. And it was found for the Defendant Crowley moved That a Consultation cannot be granted for that that they ought to be acquitted of Tithes for those of Common right And for that although prescription was alleged it is nothing to the purpose Atthowe For Fire-wood it was proved that Tithes alwaies were paid Richardson There is no doubt but the discharge also ought to be by Custome and to be grounded upon modus decimandi Yelverton and Crook otherwise that it is not upon modus decimandi But by the Common law And the reason is for that that when a man is Owner of arable Land and he pay tithe-milk and Corn And for that they are discharged of things consumed in the House Which are to make Masters and Servants fit to manure the Land c. Richardson said It is seen that it shall alwaies be discharged in consideration it is alleged how a small consideration will serve Crook It is not modus decimandi but the discharge is for that that the Parson for them had a benefit for he had by them better means of Tithes Hutton If a man had an House of Husbandry and demises all the Lands but the House He shall pay tithes for them absumpt in the House Crook not No profit is made by them to the party but the Parson had a benefit by him And a day was given to search Presidents Bibble against Cunningham BIbble brought an Action upon the Case against Cunningham and declares That there was a Communication between him and the Defendant of the sale of a Banck and an acre of Land And that in consideration thereof and that the Plaintiff would assure and deliver to the Defendant possession of all the Banck assoon as he could and that at all times upon request to be made to the Plaintiff by the Defendant the Plaintiff would become bound in a Statute Merchant to make the Assurance to the Defendant The Defendant promised to pay to the Plaintiff 72 l. at the end of 3 years from Michaelmas next ensuing And that in the mean time for the forbearance he would give after 8 l. in the 100 l. and that he became bound in a Statute Merchant for the
a title be made there by prescription it is méerly coram non Judice and if they cannot meddle with the principal it is not reason that they shall tax costs And a prohibition was granted Fawkner against Bradley FAwkner and others against Bradley In false judgement given before the Sheriff of Bâ—…rkshire Bradley brought a replevin against Fawkner and the others who commanded the Sheriff to deliver the goods and summon the parties to appear The parties being demanded at the day they appeared and then the Plaintiff declared upon which it was proceeded to Iudgement And it was held to be naught For that he declared before any appearance But upon the default he might have an attachment and a distresse insuing Dame Sherleys Case DAme Sherley wife of Sir Henry Sherley sued in the High Commission Court for Alimony And Hitcham moved for a prohibition And said that alimony is not within the jurisdiction of the high Commssion For the Court of high Commission is to try ardua regni which are not tryable by the Common law Richardson The power of the high Commission is not de arduis regni but of heresies and of such other things Ecclesiastical And he said that the Court of high Commission had special words in their Commission but not in the Statute of primo and that the Statute de primo had no prerogative in that And so the question is if the King may by the Common Law grant such a Commission Hutton said that by the same reason as he may grant such a Commission They may grant Commissions for all other things Yelverton I marvail how that came within their Commission he said that in tempore Iacobi upon a debate before him Sir Edward Cook so fully satisfied the King And this matter of Alimony was commanded to be put out of their Commission And upon that Richardson said to Hitcham Move this again when the Court is full for we may advise of this Et adjournat Lynne against Coningham LYnne against Coningham in an action upon the case the matter was thus An action of debt was brought by the Plaintiff and he recovered and had a capias ad satisfaciendum to take the party The Sheriff arrests him and the Defendant made a rescous And in that if an action lies for the Plaintiff was the question And Ayliff said that the action did not lie against the party who made the rescous but against the Sheriff And he cited Fitzher Nat. Brev. 16 E. 4.3 where the difference is If an arrest be made upon a mean process and a rescous made There the Sheriff is not responsable Because that the Plaintiff might continue his processe against the Defendant But if it be upon Execution after Iudgement Now an action does not lye against the party but against the Sheriff And if he had an action against the party he shall have an action against the Sheriff also and so twice satisfied And the Sheriff shall have an action against the party and so he shall be twice charged Richardson said That the action well lies for the Case in 16 E. 4. It is séen there that it is doubted upon the mean proces execution as to the rescous the party may have an action either against the Sheriff or the rescoussers And in some cases a man shall have his election of the actions and both actions are but to recover damages A man had an execution against one He saw the man and conveyed him out of his sight And it was adjudged that an action upon the case lies against him And peradventure the Sheriff is dead then he should have no remedy if he had not an action against the party and no inconvenience follow For he that will do such a wrong it is no matter if he be charged by both If the Sheriff suffer one to escape it is an escape as to the Sheriff but the Plaintiff may have a new execution against the party if he will as it was resolved in this Court but Hutton on the contrary and that the action does not lie As if a man be imprisoned and an other help him out of prison yet an action will not lie against him by the Plaintiff And the difference is good where a man is arrested upon a mean processe and rescued and afterwards becomes non solvend so that they who rescued him is the cause of the loss of my debt It is a wrong upon which he may be indicted Yet the party shall not have a remedy against him because that he may proceed And then he should be the cause of multiplicity of actions Yelverton was of the same opinion and agreed that difference put before And that there is no difference between this case and the case put by Hutton For a rescous made half an hour after the arrest is all one as if it were a year after And Fitzherb nat brev 102. satisfies me Harvey on the contrary He who was injured the law gives him a remedy against the party who did the wrong In the Kings Bench the case how one came to take in execution by a fier fac the goods being in an house and one séeing the Sheriff came and shut close the door and adjudged that an action upon the case lies against him And there is no difference between our case and that where one comes to make execution and the other makes a rescous Richardson in Greshams case Gresham was possessor of the glasse house at Black-fryars Beresford was a Glass-mamaker and had many glasses in Greshams house Seaman recovers in debt against Beresford and coming to make Execution of those glasses Gresham standing at his door séeing them coming and knowing their purpose shut the doors Seaman brought an action upon the case against him and judgement was given for the Defendant because that the Sheriff never demanded the Key to open the house 18 E. 2. If he had demanded the Key it had been adjudged against Gresham And there if an action upon the case will lie for hindring to make execution a multo fortiori when it is actually done and then the party rescued And he denied the case put by Hutton where one is rescued out of prison And said if one be rescued from the Bayliffs the Sheriff ought to have the action Hutton upon a mean process the Sheriff never had remedy for the rescous but he shall return the rescous But upon an execution he shall not return the rescous but he shall have an action and that the party is not prejudiced for he shall have an action against the Sheriff who in judgement of law is the party lyable Crook That the action will lie is a mischief on both parts The Defendant may be twice charged and the Plaintiff may lose his Debt But I conceive the action well lies against him who made the rescous c. And if the Sheriff brings the action he may plead the recovery by the Plaintiff when the Sheriff makes his return of the
three things were moved in arrest of Iudgement which Serjeant Barkely answered There was a covenant to enter into an obligation at Michaelmas and the Plaintiff shews that he entred before So he does not perform the consideration which he conceived to be a good performance For if a man be bound to doe an act or pay money at Michaelmas a payment before is good H. 7. 17. 2. pasc It is shewn that an action of Covenant was brought after And they say that upon his shewing covenant does not lie but debt but he said that the Plaintiff had his election here to have debt or covenant As in the Lord Cromwels case the words covenanted provided and agreed give advantage of a condition or covenant If a covenant had been sor 30 l. then debt only lyes But here it is to perform an agreement Thirdly that it appears within the declaration that the action of the case was 6 years before the action brought And so by the Statute of 21. Jac. the action does not lye I agree if the cause was 6 years before yet the breach was within the 6 years and that is the cause of action 6. rep 43. In a covenant there is the deed and the breach of the covenant and that is the cause of the action And therefore being matter in Deed an accord with satisfaction is a good plea to it 13. E. 4. Attaint is grounded upon matter of record but the false oath is the cause of it For that there also accord is a good plea So in our case the non performance by default was not at the time limitted which was before the 6 years but no action was brought against the Plaintiff untill within the six years And then he is not damnifyed untill within the six years 5 Rep. 24. Richardson For the two first exceptions he agreed with Barkley as to the third he said that there can be no action before the breach of the promise or covenant But the breach here is before the six years for the non performance of the agreement is a breach and a breach is a damnificationn In one Boughtons case the non payment is a damnification But all the question here was whether that ought to be pleaded but I conceive that it need not for by the Statute-law the action is taken away And it being a general law the court ought ex officio to taken notice of it For in that after verdict if it appears that there is no cause of action although the verdict be found for the Plaintiff he shall never have Iudgement And upon the matter that latches in time amounts to a release in law the proviso cannot ayd you For every man shall be intended without those disabilities for that that he would shew that he would have advantage of it And Crook of the same opinion for the reasons given before and said that although the Statute took away the Common law yet it is good law and done for the ease of the subject and for that shall be favoured as the Statute of limitations in all cases But he said the non performance was not a damnification before the action brought As if I be bound as for surety for A. who is bound to save me harmlesse Although he does not pay it at the day There is not a breach before the arrest or Iudgement For by the Iudgement the lands and goods are liable But for the arrest his body is troubled for that now the Scriveners put in such obligations that they save harmlesse the party and pay the money at the day But for the other matters in all he agreed and cited Richardson and Burroughs Case Where a payment before the day was adjudged a payment at the day Yelverton That is not found that there is any sufficient notice given to the Defendant by the Plaintiff of the agreement made which he ought to have And he agréed in omnibus with Richardson and said that Scriveners use things ex abundanti Richardson It is said habuit notitiam in the Declaration but does not say by whom Yet after verdict it shall be intended a good notice And although that Nichols had given the notice it is sufficient If there be a Lease for years upon condition that he doe not assign the other accepts the rent of the Afsignee before notice He shall not be bound by that acceptance before notice But if notice may be proved either by the Plaintiff or by any although it be by a meer stranger It is sufficient Yelverton denied that for he said That none but privies can give the notice of it as the case is Et adjournatur Denne and Sparks Case before RIchardson If a will be of lands and goods and that was the occasion of this will the revocation is only tryable at the Common Law But when the will is of goods only the occasion of it shall be tryed only in the Spiritual Court For it is incident to the probate of the will quod fuit concessum And he said that in the case before if the will be not revoked the devise is good at the time and the administration shall be granted as of his goods for the Law will not change the property of the residue after debts and legacies paid Crooke The case here is that the Testator makes his will of his lands and goods and devises the residue of his goods ut supra to his wise his Executrix who dies before probate Denne sues to be administrator as the goods of the first Testator and alleges revocation which because that his Proctor did not goe and swear that in fide Magistri sentence was given against him Vpon that he appeals in which there was the same Obligation and affirmed by the Oath of his Proctor Yet sentence was given against him And a prohibition ought to be granted for three reasons First For that the Will is of Lands and Goods and the occasion of that tryable here Secondly they offer injustice in giving the allegation Thirdly The Wife here dying before the probate the administration ought to be granted as of the goods of the Testator and not as of the wife And also they here would inforce Denne if he had the administration to take it cum testamento annex Which shall be an admittance by him that there was not any revocation Richardson for the first reason he agréed that the revocation shall be tryed by the common law But the goods here are only in question and all the usage and practice is that a prohibition shall be granted with a quoad the lands For the second That they will not allow the allegation If they will not pursue their rules and order of Iustice That is not a cause of a Prohibition but appeal for the third It is fit that there shall be an election if debts and Legacies are owing But it doth not appear here that there are any debts or Legacies to be paid but after Harvey agréed with Crook
is not assets For it is not the money of Manningham but taken by him to pay to another And Richardson said If the party had dyed intestate by the Common law the Administrator is Executor and all things that were to be performed by the Executor are to be performed by the Administrator There was an obligation to A. to pay to the Executors of B. It shall be more doubted there whether it shall be payed to the Administrator But the obligation here is to Manningham himself Now his Executors comprehend Administrators And Needhams case is plain in that And the mention was that the money shall be payed to these that succeed him in his personal Estate Now it was not the intent that it should be lost if he dyed without Executors Crook an action of debt being brought against an Executor upon an obligation plene administravit is pleaded Then Administrator being included in the word Executor there is a good cause of Action And the Court seemed to be of the same opinion Sed adjournatur Fowlers Case FOwler libels for tithes and a Prohibition was prayed upon a suggestion that he came to the Church by Symony By the Court a Prohibition ought to be granted upon a surmise only that he came to the Church by Symony Then Henden shewed That it was found by verdict in the Kings Bench That he came in by Symony And upon that verdict there was a decree in the Court of Wards accordingly And then the Court inclined to grant a Prohibition And the Case here was That Fowler being convicted of Symony the King presents Glapthorn who was admitted instituted and inducted And afterwards he takes another benefice above the value of 8 l. by which the other was void Yet by the assent of the Lord Windsor Patron Fowler continued possession And by Richardson He cannot be any way removed untill laps incurre Strange against Atthowe SIr Hamond Strange brought trespass against Christopher Atthowe And the trespass was done 8 years after but with a continuando unto the time limited by the Statute 21 Iac. And by Richardson the action is toll'd by the Statute For the continuation within the time makes the Trespass within the time And it is not like the Case in Dyer 119 pl. 17. In the turning of a Cock It was adjudged a new diversion for it was a new action But here is not a new act done Richardson the Statute of 21 Iac. may be well pleaded in this discharge of that action And you ought to commence for all not done after the time of the limitation within the Statute otherwise the Statute should be overthrowed For by that means the continando may punish a trespass done 20 years past with the alleging of a continuando Hutton Crook of the same opinion Yelverton on the contrary who said that it was not material if the Statute was overthrown But the other Iustices said it was a good Statute Crook Suppose that you cannot prove your continuando for in trespass it is not requisite indéed to prove it For it is only put for increase of damages But Hitcham said Now by the Statute the continuando shall be proved Then by Richardson Hutton and Crook You will make a fraction That the trespass shall be partly upon the Statute and partly upon the Common law It was ruled again according to that before That when a Will was proved in the Prerogative Court The Executor or Administrator may be cited out of â—…e Diocess where he lives to the Prerogative Court Because that the Will cannot be executed a libi than where it was proved And so that is out of the Statute of 23 H. 8. But by Richardson Hutton and Yelverton Where a Will is proved in the Prerogative Court That it shall be proved in the proper Diocess also of the Executor then it may be executed there Richardson said The privilege for them of the upper House continued 30 daies after the Session where the Parliament of the lower House but for 20 daies And that the privilege extended to Person Goods and Lands Nortons Case Mich. 4. Car. Com. Banc. IN Nortons Case before A Consultation was granted because of a Custome alleged and found for the party But by Crook and Yelverton There are divers Presidents where in that Case a Prohibition was granted without alleging a Custome Allen against Westby before IT was ruled That the Defendant shall not have costs against the Informer they being found against the Informer And Brownlow affirmed that the course of the Court is That upon the Statute the Defendant shall never have costs against the Informer Although Binge cited a President to the contrary Termino St. Mich. Anno 4 Car. Reg. Com. Banc. Gosse against Skipton IN the Court of Requests Gosse borrowed mony of the Testator of Skipton and gave a term whereof he was possessed for five years to him for security by Indenture with a Proviso of redemption And shews further in his Bill that there was a verbal Agréement between them That if the mony was not paid at the day the Testator should take the profits growing upon the Land And if the profits amounted to the value of the sum of mony that then he shall have his term a-again And that he reaped the profits accordingly which well satisfied him and yet he continued possession of the term Which afterwards came to Skipton and is now expired And so he prayed that the Defendant might account for the profits And the Defendant moved for a Prohibition Richardson Although the trust is contrary to the Indenture yet such an averment is good notwithstanding the Proviso But for that that the Executor shall account to none but the King and the years are now spent And although he occupied the same yet the profits shall be Assets And if it shal be received in the Court of Equity there shall be a Devastavit against the Executor And by the whole Court a Prohibition was granted Rolls against How A Man arrested upon a Latitat makes an Obligation to the Sheriff with a Condition to appear And the Question was if it be good For he may make his appearance by his Attorny Although Hutton thought it was not good For the Law intends that he is in person when he is in custodia Marescall And Brownlow said it was adjudged accordingly when Mr. Tomkins Bayliff of the liberty of St. Andrew took an Obligation in his own name for a personal appearance upon a Latitat At an other day Atthowe moved that the Bond was void For the Statute is general that he shall take a Bond for his appearance And now the Sheriff here had taken a Bond for his personal appearance And there he might answer to the Action by his Attorney But that he ought alwaies to be in custodia Marescal which is meant in proper person and he ought to put in bayl which is good enough It was ruled that Iudgement should be entred for the Plaintiff if cause
it may be against the Bayle otherwise it is Hill 4 Car. Com. Banc. Plummers Case IF a Recusant bring an action c. and the Defendant pleads that he is a Recusant Convict and then the Plaintiff conform which is certified under the Seal of the Bishop And upon that orders that the Defendant plead in chief and then the Plaintiff relapses and is convicted again The Defendant cannot plead indisabilitity again As it was adjudged by the Court. Sir John Halls Case SIr Iohn Halls case in a quare impedit It was given for the Plaintiff who was presented by the King to a Church void by Symony That it was apparently proved that the Plaintiff had a writ to the Bishop of Winchester who returns before the writ accepted scil Such a day which was after the Iudgement the Church was full by presentation out of the Court of Wards because that a livery was not sued These returns that the Church was full before the receipt of the writs are always ruled to be insufficient For the Bishop ought to execute the writ when it comes to him 9 Eliz. Dyer in a scire fac c. 18 E. 4. 7. The difference here is That the King presented If the presentee of one without title is admitted and instituted the Patron may bring a quare impedit with presentation for it is in vain for him to present when the Church is full But if a common person recover and had a writ to the Bishop if the Ordinary return that it is full before of his own presentment it is good As if one recover he may enter if he will without a writ of execution to the Sheriff And in this case the second presentation does not make mention of the other presentation or revoke it But if the Ordinary had returned an other presented by Symony under the great Seal And that the other in that was revoked that is good For it is an execution of the Iudgement may be pleaded in abate of the Writ But if this return should be allowed by this trick all the recoveries in a quare impedit should be to no purpose Harvey only present agreed that the Iudgement ought to be executed and that that is a new devise And if the presentment under the seal of the Court of wards was returned then the question would be whether the great Seal or this Seal should be preferred but the presentation is not returned Whereupon they two agreed That the Bishop should have a day to amend his return And not that a new writ should be taken against him Hill 4. Car. Com. Banc. Andrews against Hutton Hutton Farmer of a Mannor Andrews and other Churchardens libels against him for a tax for the reparation of the Church Henden moved for a prohibition because that first the libel was upon a custom that the lands should he charged for reparations which customs ought to be tryed at the Common law And secondly he said That the custom of that place is that houses and arrable Lands should be taxed only for the reparations of the Church and meadow and pasture should be charged with other taxes But the whole Court on the contrary First That although a libel is by a custom yet the other lands shall be dischargeable by the Common law But the usage is to allege a custom and also that houses are chargeable to the reparations of the Church as well as land And thirdly that a custom to discharge some lands is not good Wherefore a prohibition was granted Sir Iohn Halls case again IT was moved again and Henden endeavoured to maintain that the return was good And he said where the King had Iudgement upon the Statute of Symony The King may choose if he will have the Writ to the Bishop For if he present and the Bishop admits his Clerk it is a good performance of the Iudgement And admit that the King had a former title this title remains notwithstanding that Iudgement And it is not necessary to return it For if the title be returned it is not traversabe Henden If the return was that the Church was full by presentation of a stranger it is clearly void Richardson in Bennet and Stokes case there was a rule and adjudged that if a Clerk be admitted pendente lite ex praesentatione of a stranger who is not a party at all to the sute Yet such a plenarty returned is not a good return And upon superinstitution their titles ought to be tryed Yelv. The King presents one under the great seal of the Court of Wards this second presentation is not a revocation of the first but it is void Richardson And so is the second void because the King is not fully informed of his title but if he be then perhaps it would be otherwise Henley One is Patron and a Stranger presents who has not title by Symony all is now void But the King is not bound to present by Symony but may present as Patron Yelverton and Richardson The Bishop ought to obey the Writ of the King And when the Clerk is instituted that the incumbents may try their rights in trespass in Ejectione firm or otherwise the parson who recovered should be shut up Dawthorn against Sir Iohn Bullock IN a Replevin for taking of his goods and Cattel The cattel and goods were delivered in pawn to the Defendant for mony and the Plaintiff did not pay the money at the day yet in the absence of the Plaintiff coming with the Sheriff who replevyed them The Defendant avows for the cause aforesaid And Atthow demurred upon the avowry generally For that that it appeared that the Defendant had a special property in the goods and therefore he ought not to avow but justifie the same Richardson and Yelverton being only present awarded that judgement should be for the Defendant because that now by the Statute they may give Iudgement upon the Right and the Avowry is but a form upon which the Replevin is barred But he cannot have a returno habendo The Countesse of Purbecks Case HEnden moved for a prohibition for the Countesse of Purbeck who was censured in the High Commission Court for Adultery with Sir Robert Howard son to the Countesse of Suffolk and the sentence there was that she should be imprisoned without bayl or mainprise until she found security for to perform the sentence and she was fined 400 marks But Henden alleged that they had not power to inflict such punishment For the offence is spiritual and the punishment temporal And the High Commission had not power to impose a fine and imprison for Ecclesiastical causes For the liberty of the Subject is Precious And therefore the censure in the Ecclesiastical Court ought to be only by excommunication before the Statute of 1 Eliz. there was not any question of it as appears by Articuli Cler. And the Statute does not make alteration of it but only in the things there named Hil. 42 Eliz. Smiths Case
both If a man hinder the Sheriff to make execution and assault him will not a Rescous lye in such a Case Richardson Hutton and Henden that it will not That no Rescous can be upon a Fieri facias but the party shall have an Action upon the Case And Rescous lies only upon a Capias which lies against the Person himself Iohnsons Case IF a Prohibition be granted upon matter at Common law as upon a personal agreement between Parson and Parishioner for his Tithes and not upon matter within the Statute of 2 E. 6. 13. the suggestion shall not be proved within the 6 months as the Statute limites and as it is agreed by the whole Court Termino Mich. 5 Car. Com. Banc. Common Recovery A Common Recovery was suffered and a writ of Entry was not filed and for that a writ of Error was brought And Hitcham moved that it might be examined whether any writ was filed or no. But the Court denyed that But if it might appear upon Record That there was a writ filed Mich. 5 Car. Com. Banc. then they would consider whether a new one should be filed or or not And they said that the Recovery should be exemplified by the Statute of 23. Knight against Symonds THe Plaintiff being cast put this exception in to avoid costs that the Venue was mis-writen and it was allowed by the Court. And because the Defendant might have Iudgement for that he cannot have costs And Richardson said that in the Kings Bench one Grimston brought an Action upon the Case against one Hostler and it was found against him and the Plaintiff alleged that the Declaration was not sufficient for the prevention of costs and allowed But if the Plaintiff be non-sute he shall not have benefit of the Exception to prevent costs by reason of the unjust vexation Harris against Lea. HArris Warden of the Fleet is Plaintiff against Iohn Lea in Debt upon an Obligation where the Condition was That one Lea should be his true Prisoner and pay every month for his diet and the fees due to the Plaintiff by reason of his Office The Defendant pleads the Statute of 23 H. 8. and that this Obligation was made for the ease and favour of the prisoner by colour of his office And the Plaintiff replyed that the Fleet is an antient Prison and that time out of mind c. they used to take such Obligations absque hoc that this Obligation was made for the ease and favour contrary to the Statute That the Warden of the Fleet and Westm never may take Obligations for Dyer c. upon which the Defendant demurred generally But Atthowe prayed Iudgement for that that the traverse waives the matter before which was but an inducement and in 23 H. 6. There is an Exception of the Warden of the Fleet and the Warden of the Palace of Westminster That they might take such Obligations which they used to which the Court agreed And for that that the Traverse ever destroys the Bar the Defendant ought to have joyned in that upon which Iudement was given for the Plaintiff If c. Wardens Case Ejâ—ctments not he of a Mannor IT was said by the Court Although an Eject firm lies of a Mannor or of the moyety of a Mannor if Attournment of the Tenants may be proved yet it is not safe to bring an Ejectione firmae of a Mannor c. Hides Case IN one Hides Case the Defendant was out-lawed before Iudgement and procures a Charter of pardon and the Question was whether he should put in bayl And it was agreed by the Court that he should put in bayl For although the Statute of 5 E. 3. cap. 12. goes only to a Charter of pardon not to the reversal Yet by the Equity of that Statute he must put in bayl for it is that he stand right in Court which is that he appear and put in bayl And although the use of the Court hath been otherwise yet perhaps in some Cases the Plaintiff never required bayl New Entries title Pardon pl. 1. So if an Out-lawry be reversed by 31 Eliz. for want of Proclamation The Defendant puts in bayl at the Common law Manucaptors were only fined for the Defendants default But now the use is for the bayl to enter into a Recognisance c. And if at Common law upon a scire fac he revive the sute he shall find Manucaptors by the same reason he now found bayl Wood and Carverner against Symons THe Defendant here in the Prohibition libels for tithes of Hay in the Spiritual Court Intrat Hil. 3 Car. Pas 4. Car. rot 454. The Plaintiff suggests that the Hay was growing upon Greenskips Deales and Headlands and that within the same Parish there is a Custom that Parishioners in a meadow there used to make the tithe Hay for the Parson and in Consideration of that to be discharged of all tithes of Hay growing ut supra and also that for the Hay of the land no tithe ought to be paid of such Hay but does not aver that the Hay was growing upon Greenskips c. And an exception was taken by Henden First That the exception is double The Custom and Common law But by Yelverton that is not material For you may have 20 suggestions to maintain the suggestion of the Court But Richardson was against that that a suggestion might be double here for the suggestion of the Common law is a surplusage As in Farmer and Norwiches Case here lately One prescribes to be discharged of tithes where the law discharged him and so was discharged by the Common law Second exception is that he does not apply the Custom to himself in the suggestion For he does not shew that the Hay grew upon the skips upon which a Plow might turn it self That had laid the Custom And for this cause by the whole Court the suggestion is naught And here Richardson moved how that two should joyn in a Prohibition Yelverton if they are joined in the libel they may joyn in the prohibition and that is the common practice of the Kings Bench. Richardson the wrong to one by the sute in the Spiritual Court cannot be a wrong to the other Hutton they may joyn in the writ but they ought to sever in the Declaration to which Harvey agreed Yelverton the Prohibition is the sute of the King and he joyn tanâ— as in a writ Richardson But it is as the sute of the party is and if any joyn here I think good cause of consultation Richardson It is against the profit of the Court to suffer many to joyn And it is usual in the case of Customs of a Parish in debate to order procéedings in the 2 Prohibitions and that to bind all the Parish and Parson And it was said by them all That the consideration of making Hay is a good discharge because it is more than they are bound to do Rises Case IN evidence to the Iury it was