any satisfaction in tender to satisfaction Insomuch that this is only the fruit of Tenure and not like to cutti ng of Trees nor to digging of Cole or other Ore And so Coke cheife Justice that it hath been adjudged and with this agreed the booke of 21. Ed. 3. 1. The manner to make Summons in Dower if the Land lieth in one County and the Church in another County Then upon the Statute the Sheriffe ought come to the next Church though it be in another County and there make Proclamation asthe Auditors in Accompt ought to commit the Accomptants found in arrerages to the next Gaole and there ought to be committed though that they are in another County The words of a Patent of a Judge of the Common Bench are as follows that is to say James by the grace of God c. Know that we have constituted Humphrey Winch Serjeant at Law one of our Justices of the Common Bench during our good pleasure with all and singuler Vales and Fees to the same office belonging and appertaning In Witnesse of which c. Michaelmasse 1611 9. Jacobi in the Common Bench. Jacob against Stilo Sowgate IN an Action upon the Case for slanderous words The declaration was that the Defendant said of the aforesaid Plaintiff that he is perjured to which the Defendant pleads that the Plaintiff another time hath brought an Action in the Kings Bench against the same Defendant for that that he the said Plaintiff was perjured and had cozened John Sowgate and that the Defendant had pleaded to all besides these words Thou art perjured not guilty and to the words thou art perjured he Justifies that the Plaintiff was perjured in making an Affidavit in the Star-chamber and this Issue was Joyned and it was found for the Defendant but it was not pleaded that any Judgement was given upon it And Haughton Serjeant for the Plaintiff which had Demurred upon the Defendants Plea Argued that the Plea is insufficient for if it shall be intended by that that the Plaintiff was afore times barred if it be in a reall Action it ought to be averred that it is for the same Land and if it be in a personall Action it ought to be averred that it is the same Debt or Trespasse and if it be pleaded by way of Justification then he ought to have averred also that the Plaintiff hath taken a false and untrue Oath upon which Issue might have been taken But here nothing is pleaded but the Record and nothing averred in Facto So that the Issue cannot be taken upon it for the pleading is only of Record and that the Defendant for the cause aforesaid in the Record afore said mentioned spoke the said words and this is not good for there is not contained any cause of Justification as in Quare Impedit in the 15. and 16 H. 6. The Defendant pleads that he was Incumbent by the cause aforesaid and without that But this was no good Plea for he ought to plead his Title specially And also it is not pleaded as Estoppell for then he ought to have relied upon that precisely as 35. H. 6. in Replevin the avowant relies upon discent 30. assis 32. 2. H. 7. 9. Also Estoppell it cannot be insomuch that Judgement was not given in the first Action Also it is not pleaded as Estoppell for the Plea is concluded Judgement if Action where he ought to have relied upon the Estoppell and peradventure also the Triall was voyd by unawarding of Venire Facias or other Error So that without Judgement it can be no Estoppell and so he concluded and praied Judgement for the Plaintiff Barker Serjeant argued for the Defendant that the Declaration is very good and notwithstanding that the words are generall that is he is perjured yet this may be supplyed very well by the Innuendo as it appeares by James and Alexanders Case 4. Coke 17. a. And also that Estoppell by the Verdict is good without Judgement as in Action of Debt release was pleaded and Issue joyned upon that and found for the Defendant and after another Action was brought for the same Debt and agreed that the first Virdict was Estoppell 2. Ed. 3. 19. b. c. And he cited Baxter and Styles Case to be adjudged in the point that the Estoppell is good and also Vernons Case 4. Coke where the bringing of a Writ of Dower Estopped the Wife to demand her Joynture and so concluded and prayed Judgement for the Defendant Coke the Count is good being of the aforesaid Plaintiff and may after be supplyed by Innuendo though that the words after are generall But if the words were generall that is He is perjured without saying that the Defendant spoke of the aforesaid Plaintiff these English words following Videlicet he Innuendo the Plaintiff is perjured this is not good and shall not be supplied by Innuendo and he said that another time convicted is a good Plea in case of life without Judgement but this is in favour of life but in trespasse it ought to be averred that it is the same Trespasse and also there ought to be Judgement and the Defendant ought to relye upon that as an Estoppell and agreed by all that Judgement should beâ—given for the Defendant if cause be not shewed to the contrary such a day c. Michaelmass 1611. 9. Jacobi in the Common Bench. Hall against Stanley IN Trespass for Assault and Imprisonment the Defendant justifies insomnch that the Action upon the case was begun in the Marshalsey for a Debt upon an Assumpsit made by the Plaintiff and that upon that Capias was awarded to this Defendant being a Minister of the said Court to Arrest the Plaintiff to answer in the said Action and that he by force of that Arrested the Plaintiff and him detained till the Plaintiff found suerties to answer to the said Action which is the same assault and Imprisonment To which the Plaintiff replied that none of the parties in the said Action were of the Kings houshold and so demanded Judgement upon which the Defendant Demurred in Law And Dodridge the Kings Serjeant for the Defendant that the Court of Marshalsey may hold Plea of Actions of Trespasse by the parties or any of them of the Kings house or not and he intended that the Jurisdiction at the Common Law was generall and then they have Jurisdiction of all Actions as well reall as personall and though that their Jurisdiction be in many cases restrained yet in an Action of Trespasse there is not any restraint but at this day they have two Jurisdictions That is in Criminall cases and also in Civill causes within the Virge See Fleta book the second and third where he discribes the Jurisdiction of all Courts and amongst them the Jurisdictions of this Court and also Britton which wrote in the time of Ed. 1. lib. 1. chap. 2. which saith it was held before Bygott who was then Earle
l. as it appears by Fleta and Brian the authority of the Marshall was absolute in civill and criminall causes at the Common Law and that Statute restrains them for Debts but not for Trespasse of what nature soever and therefore see the Statute of 30 l. 1. 5 E. 3. ch 2. and 10 E. 3. ch 2. Swaffe versus Solley Trin. 14 Jacobi rotulo 689. An Action of Trespass brought wherefore he took his Close the Defendant justifies for a way the Plaintiff replies that he did the Trespass of his own wrong without any cause alledged and so an Issue joyned and after a Verdict for it was moved in arrest of Judgement that the Issue was not well reined and prayed a new Triall because the Issue ought to be speciall but that exception was disallowed and adjudged that it was helped by the Statute of Jeofails by the opinion of the whole Court PLaint versus Thirley Hill 6 Jacobi rotulo 161. An Action of Trespass brought wherefore by force and Arms the Goods and chattells of the plaintif did take and impound the Defendant pleaded the common Barr and the plaintif assigns the place and are at issue upon that and after a verdict it was moved in arrest of Judgement that there was no Issue joyned because the Lands are not in question and so no assignment necessary and Judgement was stayed but afterwards upon a motion Judgement was given for the plaintif because the Issue was holpen by the Statute of Jeofails and there was the like case upon a Demurrer in the court of common pleas Trin. 4 Jacobi rotulo 1131. CHild versus Heely 13 Jacobi rotulo 3381. vel 381. An Action of Trespass brought wherefore by force and Arms the Close Hedges and Gates of the Plaintiff at W. did break and his grass with walking over it did destroy and other his Grass with Cattell did eat and consume the plaintiff assigned one Close of pasture called Drew and another close called Sutton one other close called L. and the Defendant as to the Trespass except the breaking of the close called G. and P. and the treading c. with his feet and eating with his cattell in the said close called P. and E. not guilty and as to the breaking of the close c. saith the plaintif ought not to have his Action because he saith that E. 6. was seised of the Mannour of W. of which one Messuage c. was copy-hold and shews the custome for a way and another custome for a Common and conveys the Copy-hold to himself and justifies as to the pedibus ambulandi and as to the Trespasse with the Cattell justifies for Common the Plaintif replies as to the Trespass pedibus ambulandi that it was of his own wrong without any cause alledged and traverses the way and as to Trespass with the Cattell demurres and the cause of the Demurrer was as it appeared by motion because in the justification of the Cattell the Defendant had not alledged any custome for Common and so the Plaintif could not take any Issue of that custome but had alledged a custome for the way as for the common and the court were of opinion that it was well pleaded and Judgement upon the Demurrer for the Defendant FAirchild versus Gair Pasch 3 Jac. An Action of Trespasse brought for the tiths of the Church of B. and therein a speciall verdict was as followeth the Defendant was collated to this Church of B. being a Donative by A. and B. the Patrons and that the Church was exempt from the Jurisdiction of any Ordinary the Defendant resigned to A. and C. who was a stranger and to other persons who had no Interest his Church of B. with all Rights c. and afterwards the persons passe their Rights to D. who collates and interests the Plaintiff in the Church by reason whereof he seised the Tithes in question and the Defendant took them and concludes that upon the matter c. and if the Resignation be good then they find for the Plaintiff otherwise for the Defendant and by the opinion of the whole Court Judgement was given for the Plaintiffe for the Resignation was good both in respect of the thing resigned and of the person to whom it was made for it being a Donative and exempt from ordinary Jurisdiction the Resignation must be into his hands and the Incumbent shall not be constrained to keep the Church whether he will or no if the Patron will not accept it and because there is no person to whom the Resignation can be made but onely into the hands of the Patron it is good and although the Resignation be to one Patron and to a stranger it is good to both the Patrons and void as to the stranger and the more strong it is because of the following words to wit to all persons whatsoever which words involve all that have any manner of interest and then seeing it is found that D. who collated the Plaintiff and the Estate of both the Patrons although no agreement be found of the Patrons it is not materiall and the resting of the Plaintiff in the Church is good to give him power to take the profits by reason of the primer possession and although the Defendant did resigne but the Church onely yet it is good to all that appertains to the Church and that which the Defendant may have as Rector there 6 E. 3. is that if the Patron grant Ecclesiam that will passe the Avowson but Herlethen said that was in ancient time and therefore not so then to which the court seemed to agree and the court waived the Dispute of any other thing but onely the Resignation for of that onely the Jury doubted and was onely referred to the court but Popham chief Justice said that if the Patron would not collate any man to such a Donative there was no way to compell him but he is left to his own conscience and he might in time of the vacancy take the profits and sue for the Tithes in the spirituall court for such Donatives at first grow by consent of all persons who have any manner of Right or Interest to wit the Ordinary and Parishioners but Gawdy Fenner Yelverton and Williams against him that the Ordinary might compel him to collate any clerk for the Rectory is only exempted from the power of the Ordinary and not the Patron and that is onely as to charges to be taxed upon the church for the ordinary attendance in a Visitation and such like and Popham said that although the Church in execution of the charge is spirituall yet the patron may collate and a meer lay man as the King may make a temporall man a Dean which hath often happened but all the other Judges were against him in case of the person which is meerly spritual but as to the Deanery they did agree it for the function is temporall but yet Williams said that lay men who have Deaneries ought to have and at all
concurrent or immediate Jurisdiction to which appeal may be made and that the Arch-Bishop hath ordinary Jurisdiction in all the diocesse of his Province and this is the cause that he may visit but this Jurisdiction is bound and tied up to the Ordinary and when he will leave that at large then the Arch-Bishop may proceed as he is Arch-Bishop and the cause of request need not to be contained in the Instrument for when the power which was bound up is unbound and at large then he may proceed Doctor Talbot that the request is referred to three to the Bishop Dean and Arch-Deacon And the persons to whom the request is to be made are three The Arch-Bishop two Bishops three or superiour Judg and the Bishop and his Commissary are all one and request made by the Commissary shall be as good as request made by the Bishop himselfe Also that the President may transmit and make request to the Emperour as it appeares in the Booke of Justinian of the Lawes 2. Book So Baldus in reference made of inferiour Magistrates to Superiour doth defend that the Arch-Bishop is Judge of the whole Province yet is bound So Speculata in his Title of Relations of which relation shall be made So in the Councell of Antioche that the Metropolitan is mediate Judge in the first part of the Canon and for that relation shall be made to him Passonilis de officio c. disputes If the Arch-Bishop may have consistory in the Diocess of the Ordinary Hostiensis that the Ordinary may transmit a cause though the parties be unwilling Panormitan in capite pastoralis 8. Question 6. decretalls of the Canon Law Philippus Francus upon the decretalls of the Canon Law That the Arch-bishop cannot meddle in the Diocess of any Ordinary without his assent Dominicans upon the same Decretall And so he concludes that when the Ordinary makes a request to the Arch-bishop hee may meddle without the assent of the parties and the stranger when the parties assent And they agreed that generally the Arch-Deacon ought to transfer to the Bishop and so the Bishop to the Arch-bishop But they agreed also that here in England it was prescription and usage that every Arch-Deacon hath used to appeale immediately to the Arch-Bishop and so ought the Request within this statute to be made accordingly Also they agreed that if a man inhabite in one Diocess he hath cause to sue for Tithes in the same Diocess in which he inhabits and in another Diocess there he ought to sue in the Diocess where the Defendant did inhabite and not where the Tithes are payable nor where the Plaintiff inhabits and the Principall case was ordered accordingly Michaelmas 1611. 9. Jacobi in the Common Bench. Enby versus Walcott THe Defendant was sued before the Ordinary in the County of Lincoln for defamation And the Suit was begun before the last generall pardon ex officio and the Costs taxed after the time limited by the pardon and Prâ—hibition was granted in so much that all things promoted ex officio are discharged by the pardon and in so much as the principall was pardoned the Costs being but as accessory shall be also pardoned notwithstanding that they were taxed after the pardon Powis against Bowen UPon consideration had of Instructions given to the President and Councell of Wales it was resolved by all the Justices of this Court that the Councell there ought not to proceed upon English Bill which conteins title But the forme of that ought to be onely that the Plaintiff was in possession for three years and that the Defendants which ought to be alwayes more then one riotously and with force have entred upon him and so ought to be restored to his possession And in so much that the Bill containes Title in this case and that the Defendants have entered upon him and disseised him in forme of Assise and doth not say riotously and with force Prohibition was granted Butler against Thayer THe Lord Admirall granted a Commission under the Seale of the Admirall Court to Thayer for measuring of all the Corne which shall be transported from one Town or place to another within the Creeks which are within the first Bridges and to have so much for every bushell measuring and granted that if any resisted to arrest them and commit them till they had found sureties to appeare in the Admirall Court And at Milton and Raineham in Kent Thayer endevoured to put his Commission in execution and Butler resisted him and was for that arrested and sued in the Admirall Court and for stay of that prayed Prohibition it was granted in so much that the Admirall hath not power to meddle with the first Bridges for civill causes but only for Maymes and death of men but for causes made upon the high Sea where the Marriners have the better knowledg in the Common Law he cannot try that See the time of Edw. 1. Avowry 192. 8. Ed. 2. 45. Ed. 3. Stamford 51. 7. R. 2. Statham Trespass Sir John Watts CErtain goods of a Subjects of the King of Spains were forfeited upon the high Sea and after were brought here into England there sold to Sir John Wats and the goods were attached in the hands of Sir John Watts by Process out of the Admiralty and there a libell was exhibited against the goods remaining in the hands of Sir John Watts and Sir John Watts was not made party to the Suit And Sir John Watts prayed a Prohibition in so much that-they bought them in open Market And by this Suit in the Admirall Court the property will be drawn in question there where the Suite was prosecuted in the name of Awlenso de Valasco the Spanish Ambassador Legier here And Prohibition was granted Michael 1611. 9. Jacobi in the Common Bench. Jennings against Audley PRohibition was prayed to the Admirall and the Libell shewed to the Court which contained the Contract was made in the straits of Mallico within the Jurisdiction of the Admiralty and doth not say upon the deep Sea And it was agreed that in all eases where the Defendant admits the Jurisdiction of the Admirall Court by pleading there Prohibition shall not be granted if it do not appear by the Lybell that the act was made out of their Jurisdiction and that though that Sentence was given yet if that appears within the Libell Prohibition shall be granted Note that a man was sued before the Ordinary in the Diocesse of Norwich for infamous words and after sentence there given he appealed to the Arches and the first sentence being there affirmed he appealed to the Delegates and before that the proceedings were transmitted Prohibition was granted by this Court in so much that the offence was pardoned by generall pardon But this notwithstanding the Register transmitted the proceedings And after for his fees due for that hee exhibited a Bill in the Court of Requests and Prohibition was prayed in this Court for to stay his
grounded upon a promise made in this manner Marry my Neice and when I come from London I will give you 100. l. and the Action was brought in this manner Videlicet in consideration that he would marry A. promised to pay the Plaintiff 100. l. after he returned from London when he was thereunto requested and for these words when he was thereunto requested the Action was maintainable HInch versus Heald Trin. 17. Jac. rotulo Action upon the case for these words Videlicet He is a Witch and hath bewitched me and the Court held the Action would not lie for he might bewitch him by fair words or fair looks GReen versus Harrington Trin. 17. Jac. routlo 953. The Plaintiff declares that the Defendant such a Day was indebted to the Plaintiff in 10. l. for Rent due to the Plaintiff for one year ended at Michaelmas then last past for divers Lands in H. demised to the Defendant by the Plaintiff the Defendant in consideration thereof promised to pay the Plaintiff the said 10. l. when he should be thereunto requested The Defendant pleads Non assumpsit and after Verdict given for the Plaintiff it was moved in Arrest of Judgement that there was no consideration to maintain the Action because an Action of Debt lay upon the first Contract being in the realty for upon an implied promise no Action will lie where it is in the realty except there be a special promise made upon a collateral cause Videlicet If the Plaintiff had threatned suit for the said 10. l. and the Defendant in consideration that he would forbear to sue promises to pay c. and the like for if a man be bound in a Bond to pay money and the Day past now an Action of the case will not lie for that money except there be a collateral promise and so in the like cases and Judgement was given against the Plaintiff Michaelmas 17. Jac. It was adjudged in the Kings Bench in an Action upon the case Videlicet whereas the Defendant was indebted to the Plaintiff in 10. l. without expressing the cause for which the Debt grew due the Defendant in consideration that the Plaintiff at the special instance and request of the Defendant then and there had given Day to the Defendant untill a time to come to pay the money the Defendant promised to pay the money that the Action was maintainable without expressing the cause for which the Debt was Hill 17. Jac. rotulo 2722. Action of the case brought for these words Thou art a perjured Knave and I will make thee wear Papers for it the Defendant justifies the words and shews that the Plaintff was a Church-warden and took his Oath to exercise that Office and whereas one Article made was that he should present whether the Church-yard was repaired or no and he knowing it did not present it Action of the case brought for these words Thou art a scurvy perjured Knave the Action will lie WIlson versus Sheriffs of London Hill 17. Jac. rotulo 3069. The Plaintiffs declare upon an escape made upon a Capias ad respondendum after the Defendant was arrested the Defendant pleads a Custome in London that the Maior and Sheriffs of London have used to inlarge Prisoners that were arrested in coming and returning from their Courts having Causes there depending and set forth a Plaint in London against the Defendant and that he was arrested and appeared and pleaded to Issue and as he was coming to the Court to defend that Action he was arrested as is supposed in the Action upon the case brought against the Sheriffs and shew that he was brought to the Court and inlarged by the Court and the Court held that if a man were arrested in the face of the Court the Court might discharge him otherwise not PAin versus Newlin Mich. 16. Jac. rotulo 3042. Action upon the case brought upon a promise and Judgement by Nihil dicit and at the return of the Writ to inquire the Defendant moved in Arrest of Judgement and shewed that the Day of the promise was supposed in the inquiry to be Anno Domini 1614. And in the Declaration it was made 1617. and for that variance Judgement was stayed BElcher versus Hudson Hill 6. Iac. rotulo 132. The Plaintiff declares that in consideration that the Plaintiff at the request of the Defendant would marry one T. M. his familiar Freind the Defendant promised to pay the Plaintiff yearly after the Decease of the said T. M. 40. s. for her maintenance and the Plaintiff averrs the Marriage and that she survived The Defendant pleads that the said T. M. in his life time after the Marriage c. did release to the Defendant all Actions as well real as personal and all Demands and Challenges whatsoever from the beginning of the World unto the Date thereof to which Plea the Plaintiff demurrs and adjudged a naughty Plea BOx an Attourney against Barnaby Action upon the case for these words George Box is a common maintainer of suits and a Champertor and a Plague of God consume him and I hope to see his Body rot upon the Earth like the Carkase of a Dog and I will have him thrown over the Bar next Term and I will give a Beech to make a Gallows to hang him and Judgement given for the Plaintiff for this word Champertor and no other Trin. 14. Iac. Action upon the case for these words She is an arrant Whore and had two Bastards in Ireland and Judgement by the whole Court that the words would not bear an Action YOrk versus Cecill Mich. 14. Iac. Action upon the case brought by A. Tanner for these words Thou art a bankrupt Knave and the Court held that the Action would not lie but Quaere Skaif versus Nelson Mich. 12. Iac. rotulo 1106. Action upon the case brought for words against Husband and Wife spoken by the Wife and Judgement was entered for the Plaintiff and in entering of the Judgement it was made Et praedicta E. being the Woman in misericordia which was naught for it should have been both the Husband and Wife in misericordia and after the Record was certified by Writ of Error Serjeant Richardson moved that it might be amended because the Judgement Papers were right and so it was ordered to be amended according SMails an Attourney versus Moor Hill Iac. rotulo 753. Action upon the case for the words He is a forging Knave and the Court held that the words were actionable for he alleadged in his Declaration that he was an Attourney of the Common Pleas and so being touched in his Profession the words would bear an Action and if a man said of a Bishop that he was a Papist the Action would lie because Religion is his Profession and so he is defamed STeward versus Bishop Trin. 14. Iac. rotulo 769. Action upon the case for these words James Steward meaning the Plaintiff is in
Damages c. An Assise brought and the Grant was of the Herbage and Pannage c. and whether this were good or no some held it void for the incertainty of the Grant when it should begin Sir Edward Cook held the Grant good for if the King make a Lease for Life and granteth the Land without reciting the state to one for life this is a good Grant for Life of the Reversion to begin immediately after the Death of the Tenant for Life Trin. 7. Jacobi rotulo 35. An Assise brought for the Office of a Harald at the Funeral of the Earle of Exceter and the great Question was where the view should be made and it was alledged that it should be made in the place where he exercised his Office but the Court doubted of that but they were examined of the view made in the Abbey of Westminster being the place where the Funeral was performed and the Court were of opinion that in Dower where Tithes are demanded no view lies for of things that are invisible no view lies but the Tenant in such case shall be denied it SIr William Saint Andrew brought an Assise de Darrein Presentment against the Arch-bishop of York the Countess of Shrewsbury and F. H. for the Church of O. in the County of Nott. The Archbio p and H. appeared and the Countess did not appear and though the Countess made Default yet the Assise was not taken against her by Default but a re-summons was awarded against the Countess and the same Day given to the Arch-bishop and H. and a Habeas Corpora against the Recognisors And note the Tenants that appeared pleaded in abatement that a Writ of Quare impedit for the said Church was hanging in such a Court between the same parties and the Assise was brought afterwards and with this agrees the Register and it was adjudged a good Plea The Writ was returned in this manner Pleg de prosequend John Doo Richard Roo The within named Arch-bishop and Countess are attached and either of them is attached per Pleg H. S. N. J. And the within named H. hath nothing in the Sheriffs Bailywick by which he may be attached nor hath a Baily within his Liberty nor is therein found and the residue of the Execution c. and Judgement given that the Writ should abate and the like was in the Earle of Bedfords case where two Quare impedits were brought one after another and the last Writ abated J. Lovelace versus Baronissam Despencer R. Harvey Clericum Trin. 12. Jac. rotulo 74. de Darrien Presentment for the Church of M. And the said H. being solemnly exacted came not and the Sheriff made a Return that he was summoned by J. O. and W. C. and therefore the Assise was to be taken against him by Default but the said Baromsh by T. her Attourney faith the Assise ought not to be so taken and confesses the said J. was the person last presented but conveys a Title to her self of the Mannour to which the presentation belongs and that being so seised the Plaintiff in the Assise by usurpation presents the Clerk in the Count whereupon the Defendant brought a Quare impedit and hanging the Writ the Clerk in the Count dies and the Plaintiff presented the Clerk that made Default who by vertue of that presentation is yet Parson of the said Church by which she is seised of the Advowson as in her former Estate and so she saith that the Presentation of the said J. by the said L. made ought not to prejudice her and a Demurrer upon this Plea and that the Assise should remain to be taken c. for want of Recognisors and the Sheriff was commanded to distrain them c. and Judgement given that the Plea was good but quaere of the Declaration whether sufficient because it was not alleadged that he that presented was seised of the Advowson Pasch 8. Jac. rotulo 31. An Assise brought for the Office of Clock-keeper of and it was held that it must be an ancient Office and because they could not prove that it was an ancient Office the Plaintiff was non-suit and the Plaintiff shewed a Grant of the same in E. 6. time but that was held no ancient time Pasch 6. Jacobi It was held by the whole Court that an Assise of Sadler to the Queen would not lie being granted to one by the King but was held void by the whole Court for the King cannot make an Officer to the Queen and by the Patent no place was expressed where he should injoy and exercise his Office and take the Profits and therefore the Jury could not have the view and for that cause an Assise cannot be taken and if the King should grant the Office of Usher to his Son the Prince an Assise would not lie An Assise brought against Demetrius the Plaintiff was non-suit and Demetrius moved to have Cost and it was denied by the whole Court because an Assise is not within the words of the Statute Audita Quaerela BIrd versus Kirton Trin. 13. Jacobi rotulo 3118. An Audita Quaerela brought and the case was this Bird and Milles were bound to Kirton and Kirton makes a Bond to Milles in the summ of 100. l. that if Milles be not sued upon the first Bond then that shall be void and it was alleadged that Kirton did both sue Milles and Bird and that he had no notice of the second Bond that he might have pleaded it and so pretends that the second Bond should be a Defeasance of the first and Judgement was given for the Defendant BEck brought an Audita Quaerela and surmises the matter following that Boon Administrator of C. brought his Action of Debt upon an Obligation and before Judgement that Administration was revoked and Administration granted to another and notwithstanding the Revocation he procured Judgement and the second Administrator released and the rest brought an Audita Quaerela upon that Release and the Court would not grant a Supersedeas because the Revocation was but matter in fait for that Revocation was not under Seal and the first Administrator might appeal Cases in Law and Notes IF a Writ of Covenant be brought against two and if one acknowledge the Fine before one of the Justices and the other acknowledge by Dedimus or before another Justice that Fine cannot be proceeded upon these two acknowledgements by the opinion of the Court. A Writ of Covenant was brought against three men and their Wives and onely two men and their Wives acknowledged the Fine and the other Husband and Wife never acknowledged and the Fine was sued as a Fine acknowledged by all and it was desired the Fine might be amended and the Man and Wife that did not acknowledge might be put out but the Court would not grant it If I make a Lease for years reserving Rent during the Life of A. and B. if one of them die
not to the age of the Daughter for the age of the Daughter shall be intended to be set down for the receit of her legacy of forty pounds and for no other purpose and the Defendant within the time in which the Rent demanded is supposed to be due had not determined his Will as appears by the Verdict but Fennor and W. said that by the Verdict that the Defendant entred by force of the lease and occupied the land at the time comprised in the Declaration and more and that the Tenant at will cannot determine his will within a little time before the year end for that would prove very mischeivous to the lessor that his Tenant at will should determine his will within the year and refuse to occupy the land twenty dayes before the year end and in 21 H. 7. Crooks Reports it appears that a Lessee at will cannot determine his will within the year to the prejudice of the Lessor but that he shall answer the whole Rent to the Lessor but note it appeared that the Lessee at will was expulsed by the Plaintif that was Lessor and no other thing although done by his agreement can determine the Lease against the Lessor for it is Covin if the Lessee be not privy and acquainted with it which was granted by the whole Court and all of them agreed in the Title against the Plaintif but as the Reporter affirmed Popham was absent and hearing the Case was of opinion that the Plaintif had an interest by the words of the will JEffry versus Guy Mich. 3. Jacobi An Action of Debt brought upon an Obligation with Condition that if Jeffry the Defendant perform all Covenants in such an Indenture that then c. and one Covenant was that he should permit Guy the Plaintiffe from time to time to come and see if the House Leased by Guy and K. his Wife were in repair the Case was thus J. Bill and K. his Wife were Tenants in Tail of a house and had Issue J. B. dies K. marries Guy the Plaintiffe and they two make a Lease by Indenture to Jeffry for twenty years yeelding and paying to them and their Heirs three pounds Rent by the year with the Covenant as aforesaid Jeffry pleads in Barr the former intail and the death of R. and that VV. the Issue in Tail such a day entred before which Entry the Condition was not broken Guy replies that William came with him upon the Land to see if reparations c. and traverses the Entry of William in manner and form prout c. and Issue joyned upon the traverse and found for the Plaintiffe and Judgement given in the common Pleas upon which Judgement Jeffry brought Writ of Error in the Kings Bench and Judgement affirmed there but it was assigned for Error the Jury had not assigned any breach of Covenant in Jeffry and so had showed no cause of action but the Court held he need not in this Case for by the speciall Issue tendred by Jeffry the Plaintiffe was inforced one speciall replication to that point tendred and the Plaintiffe could not proceed error and it is not like the Case of an arbitrement wherein Debt upon an Obligation to perform the award the Defendant pleads nullum fecer arbitrium then the Defenâ—… in his replication ought to set forth the award and assign his breach because the Defendants Plea is generall but if in such Case the Defendant should plead a release of all demands after the Arbi-Arbitrement by which he offers a special point in Issue there it suffices if the Plaintiff answers to the Release or other special matter alleadged by the Defendant without assigning any Breach so in this Case the special Plea of the Defendant had disabled the Plaintiff that he could not assign any Breach of Covenants but of necessity ought to answer to the special matter alleadged RAstell versus Draper Mich. 3. Jacobi An Action of Debt brought for nine and thirty pounds the Plaintiff declares that the first of May primo Iacobi sold to the Defendant twenty Northern Clothes for sixty pounds Flemish Money to be paid upon Request which sixty pounds Flemish Money amount to nine and thirty pounds English Money and that the Defendant though often requested had not paid the nine and thirty pounds to his Damages of c. The Defendant pleads Nil debet per patriam and found for the Plaintiff and moved in Arrest of Judgement that the Plaintiff should have demanded the summ according to the Contract which was for sixty pounds Flemish and to have shewed that it amounts to nine and thirty pounds English but the whole Court against it for the Debt ought to be demanded by a name known and the Judges are not skilled in Flemish Money and also when the Plaintiff hath his Judgement he could not have his Execution by that name for the Sheriff cannot tell how to levy the Money in Flemish and also it is made good by the Verdict for the Jury have found the Debt demanded to wit nine and thirty pounds But if the Contract had been for so many Ounces of Flemish Money or a Barr of Silver and Gold now it cannot be demanded by the name of twenty pounds or such a summ which is not Coin nor used in Trade or Merchandise but in such Case must have a Writ of Detinue and in that recover the thing or the value and so in the Book of Entries fol. 157. is the President where Debt was brought upon two severall Obligations and demands eight and twenty pounds and declares severally that by one Obligation he owed eight and twenty pounds of Flemish Money and 34 H. 6. 12. 9 E. 4. 46. But note in that Case the Plaintiff if he would might have declared in the Detinet and it had been good ROlles versus Osborn Mich. 3. Jac. The Plaintiff brought an Action of Debt against the Defendant upon a Bond of a thousand pounds and Serjeant Nichols moved the Court for the Defendant and shewed that the Plaintiff and Defendant were obliged each to other in a thousand pounds a peice that they should intermarry before such a Day and both their Obligations were forfeited and each of them sued the other and the Defendant prayed that common Bail might be accepted of her and she would accept of common Bail of the Plaintiff and the Court held it reasonable but said if they would marry both their Bonds might be saved BArneshurst versus Yelverton Hill 3. Jacobi The Plaintiff as Administrator of I. S. brought an Action of Debt against the Defendant upon a Bond and obtained a Judgement and afterwards the Administration is revoked yet notwithstanding the Plaintiff proceeded and took the Defendant in Execution and upon a Motion in the Court the Court held the Execution void and that the Defendant ought to be discharged because it issued out erroneously for the Letters of Administration being revoked the power of the Plaintiff is gone
goes to issue upon it for if they discend to issue upon such a Plea and it be found against the Defendant it is peremptory and he shall loose the Land but upon demurrer it is not peremptory but onely to answer over Which mark VVOrkley versus Granger Mic. 5. Jacobi An Ejectment brought for two Houses and certain Lands c. And upon a speciall Verdict The case was one Heâ— Wels and his wife nere seised of a parcel of Land to them and the Heirs of their bodies begotten as for the joynture of the wife the remainder to the Heirs of the Husband in Fee the Husband bargains and sels the Land to Stamp and his Heirs in Fee And afterwards the Husband and one Winter leavie a Fine of that Land to another who grants that Land back again to Winter for one month the remainder to the husband and wife and the heire of their bodies to be begotten the remainder to the husband and his heirs The Husband dyes the Wife survives and makes a Lease to the Defendant for ninety nine yeers if she should so long live the woman dyes and the Plaintiffe claims under the bargainee and in this Case two points were debated First what Estate passed to the bargainee and Digges of Lincolnes Inne who argued for the Plaintiffe that the bargainee had a Fee simple determinable which issued out of both the Estates as it was held by Periam in Alton Woods Case And he said that the Proclamations upon the Fine are but a repetition of the Fine as it is held in Bendlones Rep put in the Case of Fines in Cooks 3. Rep. And see Pinslees Case for then for the same cause the Issue in tayl is bound although the Fine be levied by the Husband alone by the Statute of the 4. H. 7. and 32 H. 8. because he cannot claim but as Heir to the Father as well as to the Mother and therefore his Conveyance is bound and see 16. E Dyd 332. Husband and Wife Tenants in speciall tayl The husband is attainted of Treason and executed having Issue the woman dyes the Issue shall never have the Land And if husband and wife Tenants in speciall tayl And the Husband levies a Fine to his own use and devises the Land to his wife for life which remainded over rendring Rent the husband dyes the woman enters pays the Rent and dyes the Issue is barred for two causes first by the Fine which had barred his Conveyance of the intayl secondly by the Remitter waived by the Mother 18 Eli Dyer 531. See 5 H. 7. Assise Thorp and Tirrels Case Secondly the Lease made by the woman was determined by her death and it was said that the woman had not any qualitie of an Estate tayl but onely she might take the profits during her life within the Statute of 11 H. 7. And when she dyes the Estate is denised See Austens Case Doctor Wyat Tenant in tail leased for yeers And dyed without Issue the Lease was determined See first of Eliz title Executors And 31 H. 8. Dyer Where a Bishop made a Lease for yeers and afterwards makes another Lease to one of the Lessees c. And Fleming held that if the woman survived as under Tenant in speciall tayl and made a Lease for 21. yeers it is out of the Statute of 32 H. 8. and so it was adjudged in Wattes and Kings Case LAne versus Alexander Hill 5. Jaco The Plaintiffe declares in Ejectment upon a Lease made to him by Mary Planten for three yeers the Defendant saies c. that the Land is Copihold Land of the Mannor of H. in Norff. whereof the Queen Eliz was seised in Fee and long time before the Lessor had any thing there in Court such a day that J. S. her Steward at the Court c. granted the Land to the Defendant by Copie in Fee according to the custome and so justifies his entry upon the Plaintiffe The Plaintiffe replies and saies that long time before the Copy granted to the Defendant to wit at a Court of the Mannor held such a day the 43. Eliz the Queen by Copy c. granted the Land to the Lessor for life according to the custome by force whereof he entred and made a Lease to the Plaintiffe The Defendant by way of rejoynder maintained his barr and traverses with that the Queen at the Court of the Mannor by J. S. her Steward such a day c. granted the Land to the Lessor and upon this the Plaintiffe demurred in Law generally And Yelverton moved that the traverse was good in this Case upon the day and Steward and the difference is where the act done may indifferently be supposed to be done on the one day or the other there the day is not traversable as in the Case of a Deed made such a day there the day of the Deed is not traversable for it passes by the livery and not by the Deed. And the livery is the substance and the day but a bundance 10 E. 4. And the Law is the same if the day in trespasse wherein the day is not traversable For although it be done upon another day it is not materiall But when a man makes his title by an especiall kinde of Conveyance as in this case the Plaintiffe makes his title by one Copy there all that is concerned in the Copy is materiall and the party cannot depart from it for he claims not the Land by any other Copy but by that which is pleaded as is in the 18 H. 6. 14. where an Action is brought for taking his Servant and counts that he by Deed retained with him his Servant the Monday in one week in such a case it is a good plea for the Defendant to say that the Servant was retained by him such a day after without that that the Plaintiffe did retain him the Monday And the Law seems to be concerning Letters Patents wherein the day and place are traversable being the speciall conveyance of the party from which he cannot depart And also it seems that although the day in the principall case be traversed yet the Statute of 18 Eliz of Demurrers aids it it being but a generall Demurrer and the day being onely matter of form But the whole Court were of opinion that the day was not traversable in this case For the Queen granting an ancienter Copy to the Plaintiffs Lessor then to the Defendant and the traverse should have been without this that the Queen did grant in manner and form c. to the Plaintiffs Lessor and the Case is the same in the Letters Patents for there the traverse should be without this that the Queen granted in manner and form c. And the day and place shall not come into the traverse But Justice Fennor was of a contrary opinion for the Reason delivered by Yelverton before and he also and the Lord cheif Justice held it to be holpen by the Statute of 18 Eliz for it is but
City the Plaintiff surmising that the Sheriff and Coroners are Citizens of that City may pray a Venire facias to the next County of the body of the County or of the next Villiages in the next County And if the challenge of Kindred be not rightly alleadged in the challenge it matters not if it be Kindred and if a Venire facias be quashed because it was returned by the Under Sheriff who was Kin to him or other good cause it shall be quashed and the Venire facias shall be returned by the high Sheriff with words in it that the Under Sheriff shall not intermeddle with it And if the Array be challenged and affirmed the Defendant may after challenge the Poll and must shew his cause of challenge presently And if the Land in question lye in foure Hundreds if foure of any Hundred appeare it is good and note That the challenge of the Array shall be drawne in Paper and delivered presently after the Jury appeares and the Defendant is not bound to make good his challenge with these words Et hoc parat est ver iscare c. And those that try the principall challenge may also try the challenge upon the Tales if the King had been party alone no challenge was to be allowed but if the suit had been in the name of another who sued as well for the late King as for himselfe in a Writ to inquire of waste after a distress no challenge to the Poll lyes It is good cause to challenge a Juror because he was attainted in a conspiracy or attaint or if any Juror was put into the Pannell at the desire of the party it is good cause of challenge to the Array And if a Jury of two Counties and both Arrayes are challenged two of one County shall try the Array of that County and two of the other County shall try the Array of the other County and they shall not joyne untill they be sworne of the Principall and two of one Hundred and two of the other Hundred doe suffice if in Trespass the Defendant justifie as a Servant to the Lord and by his commandement It is good cause of challenge to the Juror that he is a Tenant to the Lord although the Lord be no party to the Record and if Process by challenge is awarded to the Coroners the Process afterwards shall not goe to the Sheriff although there be another Sheriff but after Judgement execution shall issue to the new Sheriff And where a man challenges the Polls of the principall Pannell he afterwards shall not challenge the Array of the Tales and if the Array be quashed it is entred upon Record but if it be affirmed then it is not entred If Trespass be done in diverse Townes in one Shire they may all be joyned in one Writ to wit why by force and armes the Closes and Houses of the Plaintiff at A. B. and C. have broken and c. WOlsey versus Sheppard Constable The Constable being Defendant justifies the Imprisonment by reason that the Plaintiff kept one Alehouse against the forme of a Statute of Queen Elizabeth and therefore by the warrant of two Justices he was committed to Prison and Issue was that he did not keep an Alehouse against the forme of the Statute aforesaid and indeed the Statute was made in Edw. 6. time and the Jury found that he did keep an Alehouse against the Statute in Edw. 6. time And the Court held the mistaking of the day of the Act is not prejudiciall by way of barr but by way of count it must be layd truly GLasbrook versus Einsey Pasch 16. Jacobi in Assault and Battery the Defendant pleaded not guilty and the next terme after the Writ of Venire facias was awarded the Defendants Attorney would have confessed the Action by Relicta verificatione which the Plaintiff did deny to receive having took out his Venire and that those Errors which had escaped in the proceedings by that confession were not holpen as they are after tryall and it was much controverted by the Court whether the Defendant without the consent of the Plaintiff might confesse the Action and the Court was in severall opinions but because the Plaintiff always prays for the confession it seemed he might refuse the confession and afterwards it was adjudged the confession should not be received because it appeared to the Court to be but a practice to lessen the Plaintiffs Damages COok versus Jenman Trin. 12. Jacobi rotulo 329. An Action of Trespass and Battery was brought the last day of October 10 Jacobi The Defendant as to the force and armes sayes nothing but pleads generally that he and one in the sayd last day of October did joyntly enter into the Plaintiffs at S. and did then and there assault the Plaintiff and that afterwards to wit such a day and yeare the said Plaintiff did by his Writing c. release c. the said R. of all Actions c. And avers it to be the same Trespass whereof the Plaintiff complained and the Plaintiff traverses without this that the Trespass c. was joyntly done and demurrer upon this Plea pretending the Trespass is severall and not joynt and so no satisfaction but it was held a good Plea for the Battery was joynt or severall at the Plaintiffs election to have his Action against one or other And a satisfaction by one is a satisfaction for all and the Plaintiff cannot have severall dammages but one dammage against them all and he hath his choice as in Heydens Case to have the best dammages COok versus Darston Mich. 15. Jacobi An Action of Trespass brought by the Committee of a Lunatique being a Copy-holder to whom the Lord had committed the Lunatique and a stranger sowed the Land and the question was whether the Committee or the Lunatique should have the Action and the Court held the Action should be brought in the name of the Lunatique YOunge versus Bartram Battery brought by the Plaintiff against Husband and Wife and two others the Woman and one of the others without the Husband plead not guilty and the Husband and and the other plead Son assault demesne and tryed and alleadged in arrest of Judgement because the Wife pleaded without her Husband and Judgement stayed and a Repleader by the whole Court CRogate versus Morris If a stranger come over a Common the Lord may have an action but not the Commoner for the petty Trespas multiplicity of actions wil not take away my action except it be a damage whereby I lose my Common I can have no action If a stranger come and eat up my Common a Free-holder may bring an Assize of common for it is a Disseisin for a Disseisin of Common is the taking away the profits of the Common And an action of case will lye against the Lord for cutting down the body of the tree when the Tenant should have the loppings if the Commoner may have his Common
c. and that the Plaintif was sued there by J. S. and that hee was summoned and upon a nihill returned a capias issued according to the Custome c. And that he being an Officer there did arrest and the Court ruled him to plead the Custome particularly for holding the Court and to prescribe c. And here it is shewn that the Maior is a Justice of Peace And it doth not appear whether he did it as a Justice of Peace or Maior as 14. H. 7 8. A Justice of Peace cannot command his servant to arrest one without a Warrant in writing in his absence And Popham chiefe Justice said That although the Judges knew the Authority of the Maior by which they arrested men yet because it did not appear to them judicially as Judges it must be pleaded And a Justice of Peace cannot command his servant to arrest one if not in his presence which was granted And Fennor Justice said that the servant is not an Officer to the Maior as he is a Justice of Peace but the Constable and Walker also added that the Plea was that the Maior commanded to imprison him presently without shewing any cause which was held naught for the maior ought to temper his Authority according to Law For the Judges cannot imprison without shewing cause but them and the Maior both may command an Officer to arrest a man without shewing the cause for else before he shall be examined he may invent and frame an excuse and the accessories will flye away And Williams Justice finds that it was incertain for the Plaintif by what authority he commanded it whether as Maior or Justice of Peace and his power as a Justice of Peace the Judges knew by common Law but his power as a Maior they knew not if it be not shewed by pleading and Judgement HVggins versus Butcher Trin. 4. Jac. The Plaintif declared that the Defendant such a day did assault and beat his Wife of which she dyed such a day following to his damage 100 l. And Serjeant Foster moved that the Declaration was not good because it was brought by the Plaintiff for a Battery done upon his Wife And this being a personall wrong done unto the woman is gone by her death And if the woman had been in life hee could not have brought it alone but the woman must have joyned in the Action for the damages must be given for the wrong offered to the body of the woman which was agreed And Tanfield said that if one beat the servant of J. S. so that he die of that beating the Master shall not have an Action against the other for the battery and loss of service because the servant dying of the extreamity of the beating it is now become an offence against the Crown and turned into Felony and this hath drowned the particular offence and prevails over the wrong done to the Mr. before And his action by that is gone which Fennor and Yelverton agreed to BRown versus Crowley Pasch 5. Jac. Action of Trespass brought against Croyley for wounding the Plaintif upon the hinder part of the left legge being rendred in Latin super posteriorem partem levis libaei and the Jury found for the Plaintiff And Harris moved in Arrest of Judgment for hee said that these words levis libaei made the Declaration vitious for the incertainty for he said that levis signified light and it was an improper word for left and that judgment ought to be respited for the incertainty And Yelverton argued that judgment ought to be given for the Plaintiff for he said the Declaration was not vitious for if the Plaintiff had declared generally that he had wounded broken or evill intreated him and had omitted those other words it had been sufficient and then the adding of those words which were not materiall but for damages did not make the Declaration vitious and he said that levus leva levum was Latin for left And whereas he hath said that he strook him super posteriorem partem levis libaei where it should have been levis libaei it was but false Latin and the Declaration shall not be made naught for false Latin And Popham said that hee shewing upon which part of the body the wound was were laid only to incense damages for the Declaration had been sufficient though they had been omitted And Justice Fennor agreed to Popham and he said it had been judged that where a man brought an Action against another for calling him strong Theife and the Jury only found that he called him Theife but not strong Theif yet the Plaintiff recovered for this word strong was to no other purpose then to increase dammages and Judgement was given for the Plaintif VIccars versus Wharton Pasch 5. Jac. Viccars brought an action of false imprisonment against Wharton and others and shews that he was imprisoned two dayes and two nights without meat or drink The Defendants come and shew that King Edward the 1. by his Letters Patents did incorporate one Village in Nottingham-shire with Bailiffs and Burgesses and that the King did ordain and make those Burgesses Justices of the Peace there and that the Defendant was Bailiâ—â— and a Justice of Peace there and that the Plaintiff did speak divers opprobrious and contumelious words of the Defendant by reason whereof they imprisoned him And shews further that the Bailiffs have used from the time of the making their Patent to imprison the disturbers of the Peace and it was held a naughty plea for a custome could not be shewn in such a manner And Tanfield held in this case that a man could not prescribe to be a Justice of peace but Justice Williams held he might prescribe to be a conservator of the Peace And Tanfield held that the King might grant that all the Burgesses and their Heires should be Burgesses which Justice Williams denyed HAll versus White Pasch 5. Jac. An action of Trespass brought against the Defendant for impounding the Plaintiffs Cattel the Defendant justifies for Common And upon that they were at issue in Derby-shire and the Jurors being sworn the Bailiff found one Bagshaw one of the Jurors rending of a Letter concerning the said cause and shewed it to the Judg and a verdict given by the Jury And this matter moved in the then Kings Bench to quash the verdict but denyed by the whole Court because the Letter and the Cause was not certified by the Postea and made parcell of it for otherwise the examination of that at the Barre after the verdict shall never quash it And so it was adjudged between Vicary and Farthing 39. Eliz. where a Church Book was given in Evidence of which you shall never have remedy except it be entred and made parcell of the Record BVtler versus Duckmonton Trin. 5 Jacobi In Trespasse upon a speciall Verdict the Case was that no demised Land to a woman if she should live sole and unmarried
his house which he could not do for the entring is one act done and ended at the going out again And therefore if he re-enter it is a new Trespass and the continuando is only alledged for the aggravation of damages 2 R. 3. 15. 10. E. 3. 10. 16. E. 3. 24. That a continuando cannot be for breaking the House but Doddridge and Haughton Justices the rest being silent were of opinion that it might be alledged that a continuando for although it might be that if hee went forth and re-entred it should be a new Trespass but if upon his first Entry he continued divers dayes it might be alledged with a continuando And see for that Mich. 38. El. in the Common Pleas fol. 118. If a Disseisee re-enter he shall have an Action of Trespass against the Disseisor with a continuando And so is Fitzherberts Nabrevium 91. L. that a continuando may be laid as well for breaking a House as eating the Grass and so is 10. E. 3. 10. and 20. H. 7. 30. by the opinion of Gapley GEush against Mynne Pach. 11. Jacobi An Action of Trespass brought wherefore by Force and Armes the Close of the Plaintiff did break c. The Defendant justified by reason there was a report that a Vermine called a Badger was found there to the great damage of the Inhabitants by reason whereof he uncoupled his Beagles in the place where c. and hunted there and found the Badger and pursued him untill he Earthed in the place where c. by reason whereof he digged the ground and took the Badger and killed him and afterwards hee stopped up the Earth again which is the same Trespass and demands Judgment whereupon the Plaintiff demurs And upon reading the Record Scamber of the Inner Temple was for the Demurrer and that the Defendant could not justifie as this case was And first he was of opinion that the Common Law warrants hunting such noysome Beasts although it be in the Lands of another because it is good and profitable to the Common-wealth that such hurtfull Beasts should be extirpated according to the 8. E. 4. 15. And Fishermen may justifie their Nets upon anothers Land 13. H. 8. 16. 22. H. 6. 49. A man may justifie entring into a house to serve a Subpaena 3. H. 6. 336. A man may justifie the entring into anothers Land with the Sheriff to help him to distrain but otherwise it is for things of pleasure as 38. E. 3. 10. B. You cannot justifie the Entry when your Hawk hath killed a Pheasant in anothers Land and so for hunting of Hares or Conies in the Free-hold of another but although the Law allows and permits such Entries as aforesaid yet the Law requires that such things shall be done in an ordinary and usuall manner as 12. H. 8. 2. A Commoner cannot digge the Land to make Trenches although it be for the benefit of another and this is confirmed and explained by the Statute of 8. Eliz. cap. 15. For although that Statute gives reward for the killing of Vermins yet the Statute further saies that it must be with consent and with reasonable Engines and Devices 2. R. 2. Barr. 237. Grant of Fish in the Pond one cannot dig the Land and make a Sluce but must take with them Nets And so if a man grant to me all his Trees in such a place I I cannot grub up the roots out of the earth if there be any other way to take them but if there be no other way then it is otherwise as 9 Ed. 4. 35. a. A grant to put a Pipe in my Land and afterward it is stopped I may dig to mend it by the opinion of the Court and therefore there being an Ordinary course to wit hunting to kill the Badger the digging for that is unlawfull and the Action will well ly Mich. 36. and 37 Eliz. 60. Nicholas Case expressely for a Fox and Fenner held it was not lawfull to break a Hedge in the pursuit MIles against Jones Pasch 11 Jac. Miles brought an Action of Trespasse against Jones wherefore by force and Arms his goods c. The Defendant pleads that the Plaintiff 5 Jacobi acknowledged a Recognisance of 100. l. at Mich. at which day he did not pay it and that two years after the Recognisance was extended upon his goods because the monies were not satisfied at the day nor at any time after the Plaintiff replies that they were paid in the sixth year of James and desires this that it may be inquired onely by the Countrey and the Defendant likewise and upon the Triall it was found for the Plaintiff and it was new moved in arrest of Judgement by Goldsmith that there was no Issue joyned for an Issue ought to be joyned upon a thing alledged by the party DOyly against White and Webb Trin. 11 Jacobi Doyly brought an Action of Assault Battery and imprisonment of his wife against White and Webb The Defendant pleads a speciall Justification to wit that in November 2 Jacobi an Action of Trespass was brought in the Common pleas by one A. against Julian Goddard and upon the generall Issue it was found for J. G. and Judgement given for her and afterwards and before Execution J. G. takes to Husband the now plaintiff and afterwards brings a Writ of Error in the Kings Bench and upon a Scire Facias against the said Julian the Judgement in the Common pleas was reversed and costs given to A. the plaintif in the Writ of Error and aftewards a Capias ad satisfaciend was directed to the now Defendants to take the said I. G. by Force of which the said Defendants took the woman of the now plaintif with an averment that the said I. G. and the Wife of the now Plaintif were one and the same person and the plaintif demurres upon this plea and Yelverton moved that this justification was not good for divers causes first when the Sherif is to execute a process he is to do it duly and upon the right person at his perill and for that see 11 H. 4. 90. b. If the Sherif take the goods of another in Execution he is a trespassor 5 E. 4. 50. a. If a Capias be to take I. S. and there be two of the same name he ought to look to take the right man at his perill and as he ought to take notice so he must pursue his authority and for this see 10. E. 4. 12. b. if a Capias issue out against I. S. the Son of A. and he take I. S. the Son of B. false imprisonment lies against him and in a Case when his Warrant is against I. G. there is no such J. G. for by her marriage with the Plaintiff she had another name and he is therefore a Trespassor for the taking of J. Doyly and his averment cannot help him because it agrees not with his Warrant and so cannot be intended to be the same person but if the variance was
H. 6. 46. be it true or not and if it be not true the party may have his action against the officer which doth it and it was adjudged in Fullers Case in the Kings Bench that the high Commissioners may imprison and impose a fine for Heresie and Schisme and it was also resolved that Poligamy before the Statute of the 3. of King James was punishable before the high Commissioners for this was an heynous crime otherwise the Statute would not have made it Felony and he said that it was agreed in the time of the last Queen Elizabeth that the high Commissioners should not meddle with any thing but only those five that is Heresie Schisme Poligamy Incest and Recusancy and with no others and it was moved that a Writ De causione admittenda lieth for that they would not allow of the submissions And the Justices would consider of that and the Prisoner was remanded and it was adjourned And at an other day it was moved by Nicholls Sergeant that the high Commissioners supposed for that that the Statute of 5. El. gives authority to the Queen and to her heires and successors to grant Commission to Visite Reforme Redresse Order Correct and amend all Errours Heresies Schismes Abuses Offences Contempts and Enormities whatsoever and that the Commissioners may execute all the premises according to the Tenure and effect of the said Letters Patents that by that they might fine and imprison at their pleasure But Coke chiefe Justice said that it appeares by the preamble of the said Statute that after the Statute was in the â—5 yeare of the Raigne of King Henry the 8. by which the ancient Jurisdictions Authorities superiorities and Prehemenences were united or restored to the Crown and by meanes of the said Statute his Subjects were continually kept in good order and were dâ—sburthened of divers great and intollerable charges and exactions before that time unlawfully taken and exacted untill such time as the said Statute of 25. H. 8. was repealed by the Statute of 1. and 2. of Phillip and Mary which said Statute of 1. and 2 of Phillip and Mary should be repealed and void by which it appeares that the Kings Subjects were greviously burthened with grevious and intollerable charges and exactions and yet in this time of usurped power of the Pope doth not challenge that he might Commit or Imprison or Fine in any case but in the cases especially mentioned in the last Case aforesaid and for that all the usurped power was annexed to the Imperiall Crown the which he called the clause of annexing the second was the clause of deputation and this was the clause of the Statute by which the Queen hath power to grant Commission to such persons being naturall borne Subjects as her Majesty her Heires or Successors shall thinke fit to Exercise Use and Execute under her Majesty all manner of Jurisdictons Privelidges and Preheminences in any wise touching or concerning any spirituall Jurisdiction in all her Majesties Dominions and to Visit Reforme Redresse Order Correct and amend all such Errors Heresies Schismes Abuses Offences Contemps and Enormities whatsoever which by any manner spirituall or Ecclesiasticall power authority or Jurisdictions can or may be lawfull Reformed Ordered Redressed Corrected Restrained or amended and the third he calleth the clause of execution by which power and authority is given to the Commissioners to Exercise Use and execute all the premises according to the Tenure and effect of the said Letters Patents And it seems it was not the intention of the Statute to give any power to the Commissioners which was not given to the Queen by this Statute for the clause of deputation shall not be more ample then the clause of annextion and then the clause of execution refers to the first too clauses as it appears by the words of that that is to use and execute all the premises according to the said Letters Patents and the premises are expounded by the first clauses that is Errors Heresies Schismes c. And the said Letters Patents refer all Letters Patents before mentioned where the persons are appointed to be naturall borne Subjects and the materiall manner of Jurisdictions Priviledges and Preheminences Ecclesiasticall Siprituall and to Visit Reforme Order Redresse Correct and Amend all such Errors Heresies c. Which by any manner of spirituall or Ecclesiasticall Power Authority or Jurisdiction can or may lawfully be Reformed Redressed Ordered Corrected Restrained or Amended c. So that it cannot be intended that they may proceed in any other forme but only according to the Ecclesiasticall power and Jurisdiction and no other for otherwise they may Fine Imprison and ransome any man at their pleasures which was never intended by the makers of the said Statutes But only to transfer the Power and Authority which at that time was in the Bishops which then were Papistes to the high Comissioners the which the King may alter at his pleasure and so he cannot the Bishops for they are nor displaceable after their consecration Michaelmas 8. Jacobi 1610. in the Common Place A Man was cited before the High Commissioners for Poligamy which was agreed to be a cause examinable punishable there and upon examination of the Cause the Defendant was acquit and yet he was censured to pay costs though that he was acquitted of the Crime and this Court was moved for a Prohibition and it was denyed for they may hold plea of Principall and then Prohibition shall not be granted for the accessary and the Lord Coke said that they have just cause of lawfulnesse of punishing the offence though they have not just cause of the Deed and peradventure it was very suspitious that he was guilty and for that he hath only God for his revenger Parkers Case THree were cyted to appeare in the Court at Chester for Tenths and treble damages demanded and also in the Libell it is suggested that the Land is barren and very unfruitfull and Prohibition was awarded against those joyntly and yet it was agreed that they ought to count upon the Prohibition severally Penns Case PEnn Parson of Ryton in the County of Warwicke sued for Tithes in the Ecclesiasticall Court before the Ordinary and the Defendant here pleads that the same Parson was presented upon a Symonicall contract and for that his Presentation Admission and Institution were void by the Statute of 31. Eliz. And the Symony was for that that it was agreed between the said Parson and another man that was Brother to the Bishop of Lichfield and Coventry who was Patron of the same Church That if he should procure three severall grants of three severall next avoydances to them severally granted to surrender their said severall grants and procure the said Bishop to present him when the Church became void that being then full of an old Parson being deadly sick that he would make to him a lease of parcell of the Tithes of his Rectory And the brother
be avoyded and also he seemed that they could not examine any lay man upon his Oath But in causes Matrimoniall and Testamentary and he said that so was the common Law before the making of that Statute of Articulis cleri as it appears by a Canon made by Ottamon which was a Legate A Latere from the Pope in the 22 H. 3. and Canonicall by which is recited that where such were drawn in length because that lay men were examined upon their Oathes and therfore it was provided that lay men should be examined upon their Oathes although it did not concern causes Testamentary nor Matrimoniall the custome of England to the contrary thereof notwithstanding see Fitzherberts Natura brevium 41. a. Cromptons Justice of Peace fol. 59. b. Register 36 b. and Hyndes Case 18. Eliz. or the Margin in Scrogs case Dyer 175. b. So also Lamberts Justice of Peace that those things are to be given in Charge by the Justice of Assise and Coke saith that the Writ in the Register was framed before the Statute of Articuli cleri And also he cited one Lees Case who was committed for hearing of a Masse and refused to be examined upon that upon his Oath and had a prohibition and so he agreed that a Prohibition should be granted and upon that it was awarded accordingly Note that a Prohibition was granted to the high commission Court for that that they examined the lawfullnesse of a Marryage Symonds against Greene. NOte one suit was before the high Commissioners and 16. were brought by Pursivants before them for that that they were present at a Clandestine marraige and it was urged that this was not to be punished by any inferior Ordinary in any of their consistories for the contract was made in the Diocesse of the Bishop of Worcester and the marriage in the Diocesse of Glocester and the Preist which married them inhabited in the Diocesse of Oxford And yet Prohibition was awarded and the Justices were of the opinion that every of them for which the Pursivant was sent might have an action of false imprisonment against him for they cannot use any other processe but cytation only Admirall Court NOte that it was urged by Haugton that the intent of the Statute of 13 R. 2. chapter 5. Was not to Inhibite the Admirall Court to hold Plea of any thing made beyond Sea but only of things made within the Realme which pertaines to the common Law and is not in prejudice of the King or common Law if he hold plea over the Sea and that this was the intent of the Statute appeares by the preamble But to this Coke saith that the office of the Admirall was an ancient office though it hath been otherwise conceived by some for he hath seen Records and Libells and proceedings in the time of King Iohn where he was called Marina Anglie in the time of Ed. 3. And also he said that the words of the Statute are in the negative That is that the Admirall nor his Deputy doe not meddle from henceforth of any thing done within the Realme but only or things done upon the Sea and he said that it was adjudged in one Wrights case that a thing made at Constanticople shall notbe tried in the Admiralty for itought to be made upon the deep Sea otherwise they shall hold no trial of that see 48. or 50. of Ed. 3. 2 Ed. 2 F obligation and if a man be slaine or murthered beyond Sea the offender shall not be punished in the Admiralty Walmesly and Warburton Justices agree that if a thing be done beyond the Sea and may be tried by the common law there the admirall Court shall have no Jurisdiction But if an obligation beares date beyond Sea or be so locall that it cannot be tried by the common law there if the Admirall hold Plea of that Prohibition shall not be awarded for it is not to the prejudice of the King nor of the common law But if the party can have his remedy by the common law the common law shall be preferred And if at the common law one matter comes in question upon a conveyance or other Instrument made beyond Sea according to the course of the civill law or other law of the Nations where it was made the Judges ought to consult with the Civilians or others which are expert in the same law and according to their information give Judgement though that it be made in such forme that the common law cannot make any construction of it Michaelmas 8. Jacobi 1610. in the common Bench. IF a Parson agree contract withme that I shall keep back my own tithes if that be made after that I have sown my Corn and for the same year only this shall be good and if the Parson sue in the spirituall Court for tithes I shall have a prohibition but if it be for more years then one or before the Corn be sowed this shall not be good by Coke and Foster against Warburton and Coke said it was adjudged in the Kings Bench in Parson Boothes Case that a contract made with a parishioner for keeping back of his tithes for so many years as he shall be Parson was not good and so it was Wellowes Case here also but it was agreed by them all that such a contract or agreement for the tithes of any other was void but only of the party himself which was party to agreement and that ought to be made by way of keeping them back See before Easter 8. of James See 20 H. 6. and the 21. H. 7. 21. b. Pasche 1611. 9. Jacobi in the Common Bench. THE question was upon a motion to have a Prohibition to the President and Councell of Wales if that shall be granted without action hanging And Coke cheife Justice said that the Record of the booke of 38. H. 6. agreed with the Report and is witnesse John Prisott and 2. Ed. 4. Is adjudged in the point but yet he advised that there shall be information Walmesley Justice said that this is no action But Coke Foster and Warburton said that it is an action fufficient upon which a Prohibition shall be granted and Coke said that if they hold Plea of a thing out of their Instructions he would grant Prohibition without action hanging But if they proceed in erronious manner in a thing which is within their Instructions he would not grant Prohibition without action hanging or Information Sir William Chanceys Case SIr William Chancey was cited before the Ordinary of the Diocesse of Peterbrough and sentenced to do Pennance for Adultery and this he commuted and after that he lived in Adultery with one in his house and had two Bastards by her and continued in Adultery with her for many yeares and for that he was cited before the high Commissioners and for that that he would not allow his wife competent allimony who had seperated himselfe from her company in respect that he lived in
Immunities c. of what nature c. be they Ecclesiasticall or Temporall which appertain and belong c. by or in the right of their Religion but the Priviledges and Immunities they have in the right of their Religion and these the Statute of 32. H. 8. gives to the King and there is no cause that they should surmount or that the Statute should give to them more favour then the former Statute hath given to those religious houses which were dissolved by the Statute of 31. Eliz. For the Hospitallers of S. Johns were favourers and maintainers of the Popes Jurisdictions as well as the others as it appears by the Statute of 32. H. 8. Also the words of 32. H. 8. hath only the words of the King and his Successors and doth not speak of his Assigns which words are expressed in the Statute of 32. H. 8 But it is provided by 32. H. 8. that the King cannot use at his will and pleasure which amounts to so much Also the Statute of 31. H. 8. extends to all Religious houses by expresse words and it shall not be intended that the intent of the makers of the statute was to omit that which were to be of the Order of S. Johns of Jerusalem when the mischeif was in equal degree And it hath been agreed that they are religious persons and that they were under the obedience of the Pope for so they are described in the statute of 17. R. 2. by which the possessions of the Templers was transferred to them so that on the matter they are religious which shall not be intended so largely as every Christian may be said religious but Secular and Regular which vow Obedience Chastity and Poverty and for the proof of this he cyted a president Also it seems to him that the Statute of 30. H. 8. extends to those Lands which come to the King by the statute of 32. H. 8. And it is not like to the Arch-Bishop of Canterburies case 2 Coke 47. upon the statute of 1. Ed. 6. For that Statute gives the Lands to the King for other causes and not for the same causes which are contained in the Statute of 31. H. 8. But the Statute of 32. H. 8. is for the same cause and with the same respect to Religion But if these Lands have come to the King by Exchange or by Attainder then they shall not be intended to be within the Statute of 31. H. 8. But if another Statute be made in 32. H. 8. by which all Religious houses have been given to the King this shall be intended within the Statute of 31. H. 8. And the Judges before whom the cause depended judicially ought not to be ignorant of that and so he prayed that a Prohibition might be Shirley Serjeant for the Defendant at another day in Trinity Tearm 9. Jacobi argued that the question only depended upon the Statute of 32. H. 8. upon which the Prohibition is founded with the Statute of 31. H. 8. by which the Lands of Monasteries are given to the King do not extend to those Lands which are given after by Parliament But he intented that the Constitution which discharges the Templers of the payment of Tithes is spirituall and extends only to spirituall persons which may prescribe in not tything see 38. Ed. 3. 6. 2 of Coke the Bishop of Winchesters Case 44. Also he intended when an appropriation was made to the Templers that this is determined by dissolution of their Order So upon the Statute of H. 5. of Priors Aliens which have Impropriations or which have Rent issuing out of them and after the Impropriation is dissolved the Rent is gone for the Impropriation is dissolved Also he took exception to the pleading for that that it is only a branch of the Statute of 32. H. 8. And then by vertue of the premises he was seised which is not good and so hee concluded that it was a good cause of demurrer upon the Prohibition and prayed consultation Barker Serjeant for the Plaintiff seems the contrary and yet he agreed that he could not take benefit of the Statute of 31. H. 8. for that that these Lands came to the King by another Statute but he relyed upon the words of the 32. H. 8. which was made only for the dissolution of the Hospitall of St. Johns of Jerusalem Tythes are as ancient as any thing that the Church hath and before that any Law was written for Abraham payed Tithes to Melchisedeck but it doth not appeare that he paid the tenth part but Tithes are due by the Judiciall Law of God and the King hath power to appoint what quantity shall be paid But at the beginning there were Sacrifices Oblations and Tithes And it was ordained by Edgar King of this Realm that Tithes should be given to the Mother Church Also Edmund Ethelstone William the Conquerour and the Councell of Magans specially provided that Tithes should be paid but did not appoint when they should be paid But the first Law which appointed the quantity was made in the time of Edw. 1. and this ordained when they ought to pay the Tenth with the feare of God And it was resolved in Fox and Cresbrooks case in the Commentaries after severance they are temporall and Action lyes against him which carries them away as of Mortuary as it is resolved 10. H. 4. 1. 6. And before the Councell of Lateran every one might pay his Tithes to what person he would and then were paid to Monasteries as Oblations But of Tithes which are due to any by prescription hee which payes them hath no such election but ought to pay them to him which claims them by prescription 14. H. 4. 17. If a Parson of a Parish claim Tithes in another Parish as portion of Tithes due by prescription to his Rectory he ought to shew the place specially So if Nunns prescribe to have a portion of Tithes they ought to shew the place for it is a question if they are spirituall or not for their office is only to pray in their house 24. Ed. 3. So the book of Entries if a man claim Tithes to his Pupil he ought to shew in what place the Tithes lye in the 17. Ed. 2. The order of the Templers was dissolved and their possessions annexed to St. Johns of Jerusalem and they did not claim by any Bull of the Pope nor other spirituall Canon but by prescription which is priviledg and private Common law and this appears by the Statute of Westminster 2 Chap. 47. That is that they are conservators of his priviledges Also he saith that the Statute of 2. H. 4. discharges Farmers without speaking of Priviledges And the Statute of 7. H. 4. 6. useth the same words which are contained in the Stat. of 32. H. 8. That is that none shall put in execution any Buls containing any priviledges to be discharged of payment of Tithes And Mephams Canon in time of Ed. 1. saith Let the custome be
for he intended that tythes should be due by divine right as due by the Manuring and Tillage of the occupier in whose soever hands that the land commeth if it be not in the hands of the Parson himselfe 30 H. 8. 43. Dyer 20. And for that a Parson shall have tythes against his own Feoffment 43. Ed. 3 13 a. 1. Coke Albanyes case 111. a. 32 H. 8. B. Tythes the 17 accordingly and unity of possession shall not extinguish them And also he intended there are two manner of persons which are discharged of paiment of tythes One Spirituall the other Temporall the spirituall in respect of their Order and the temporall in respect of Custome and Prescription and also by grant as it is agreed in the Arch-Bishop of Canterburies Case 2. Coke but this is in the case of a spirituall man before the Statute of 32 H. 8. which was capable of them in taking and that he might prescribe in not Tithing but a lay man cannot be discharged but for satisfaction and consideration for he cannot prescribe in not Tithing and for that in the case here the thing to be considered is if it be sufficient satisfaction and consideration and to that he intended that the payment of a duty that is Tyth Corn and Tyth Hay cannot be satisfaction consideration for another duty and this was the Reason of Piggot Hernes Case that the Lord of a Mannor in consideration of 20. Nobles yearly paid to the Parson prescribes to have the tithes of a Hamlet and in consideration of that the Lord himself and his Tenants were discharged of payment of Tithes but there the consideration and satisfaction was the cause which made the custome good see 2. Coke 45. a. And then he proceeded and examined the manner of the satisfaction in the principall case which is that the Plaintiff shall pay tyth Corne and Hay and nothing for Milk and Calves but by reason thereof shall be discharged as if he should say that because he payeth tythe Corne therefore he shall pay no tithe Milk and he intended that the nature of satisfaction is to give content to the party as if the prescription had been that the Plaintiff should pay so much Money and in consideration of that or that he shall make the tithe in Cocks or rake it or mow it at his owne charge this is a good prescription aed there are diverse presidents of that but no president is of this forme as the case here is for money shall be intended the greater value and more beneficiall for the Parson then his Tithes in kind and Money is the value of every thing and may give contentment to the party which receives it he cited Bookes of 9. Ed. 4. 19. and 12 H. 7. 15. and 2â— H 5. 2. a. To the same intent which were cited before by Haughton that is which agree in Arbitrement and the Plaintiff entred into his own Land or that the Defendant delivered to the Plaintiff his own goods which the Defendant had taken from him it is not good for it cannot give contentment to the party otherwise it is if it be that the Defendant shall carry them to another place and there shall deliver them for it cannot be satisfaction and contentment to the party and for that that here the Plaintiff hath not made more then the Law compells him and that it was his own duty and for that the prescription wants consideration it shall not be good and also by reason thereof it can be no good discharge for this cannot be satisfaction but he said it was adjudged Pasch 20 Jacobi between Hall and Aubery that Money was a good consideration and satisfaction for tithes and so he concluded and prayed judgment for the Defendant note that this cause was adjudged Hillary 8. Jacobi upon solemn argument by all the Judges with one voice that the Prescription was good Haughton Serjeant moved for a Prohibition for that the Suit was begun in the Admirall Court upon Charter party made beyond Sea upon the Land and Prohibition was granted though it be for a thing made in Paris or in another place beyond the sea if it be not upon the Main Sea but if the Defendant there admitts the Jurisdiction of the Court and suffers sentence then the Court will not upon a bare surmise grant a Prohibition after the admittance of the party himself if it be not in a thing which appeareth within the Libell that is that the Act was not made within the Jurisdiction of the Sea and to this difference all the Court agreed If a Court Baron divide a Debt of thirty pound in severall parcells under forty shillings and so proceeds in severall Actions Prohibition shall be granted see Fitzherberts Natura brevium and 19 H. 6. Hane was cited out of his Diocesse into the Arches and he pleaded to the Libell and sentence is given against him for costs and after that Prohibition was granted and upon that consultation was prayed for that that the Defendant was the party greeved and ought to have pleaded the Statute insomuch that the Statute was made for his benefit but if it appears by the Libell that the Court of Arches need not to have Jurisdiction then it seems that the Prohibition was well granted as in Sir Henry Vinors Case he began a suit in the high Commission Court for the not serving of a Chappell and the Court understanding that they had no Jurisdiction remitted the cause to the Ordinary and yet gave sentence against Sir Henry Vinor which was Plaintiff for Costs and for that he prayed a prohibition and it was granted to his Petition notwithstanding that he himself was the party who begun the suit there as it was remembred by Nicholls Serjeant A Woman sued in the spirituall Court for Defamation and the words were That thou mayest be an honest woman but thou playest too much with a thing c. And Prohibition was prayed insomuch that these words were not Actionable for in Spellmans reports Prohibition was granted for that they proceeded there for calling a Minister Knave Preist and also by these words a white Cloake is more fitter then a black cloake for him for action upon the case doth not lye for these words by any Law but the Prohibition was not granted Pasch 11. Jacobi Prohibition Tey against Cox PRohibition was prayed for that that one was cited out of his Diocesse before the Arch-Bishop of Canterbury as Keeper of the Spiritualties in time of the vacation of the Bishopprick and it was denyed but if he had beene to appeare before him as Metrapolitan otherwise it should have been insomuch that this is against the Statute of 23. H. 8. And also for his own Canon but in this case the Statute of 23 H. 8. And also their own Canon but in this case the ArchBishop hath done as he ought and for that the Prohibition was denyed see 17 Ed. 2. Fitz. Na. Bre. 822. and
that the Husband was subject to that then by consequence it was intended that all persons which were chargeable by the common Law shall be chargeable by the Statute and by the action which is formed upon that and by the common Law the Husband was chargeable and by consequence shall be chargeble by the Statute and he intends that there would be difference between actuall wrongs and others which are come by omission and if the VVife be the person which did the wrong then she shall be punished as well by Statute as she was before by the common Law also she shal be out-lawed and it hath been agreed that Ravishment of Ward shall be maintainable against the Husband and the wife if they both are Ravishers and also if the wife be Ravisher before marriage and after takes a Husband the Husband shall be charged with the damages and his Body shall be imprisoned and by consequence shall be abjured also shee may make an Executor by the consent of her Husband but admitting that she could not then the remedy is given against the Heir and she shall be within this Statute as well as other Statutes made in the time of the said King as the Statute of Westminster 1. 37. And shall be a Disseisor with force and shall be imprisoned whether the Husband joyn with her or not as it is adjudged 16 Assise 7. for all Statutes which provide for actuall wrong a married VVife shall be intended within them as it is 9 H. 4. 6. But the pleading of Joyntenancy there the Plea is the act of the Husband and so fayling of Record upon the Statute of 34 Ed. 3. as it is 16 Assise 8. for the Husband propounds the exception but if the VVife propounds the exception then she shall be within the Statute and shall be imprisoned 21 Assise So if a married VVife make actuall disseisin with force she shall be imprisoned 9 H. 4. 7. b. 8 Ed. 3. 52. 22 Ed. 2 Damages 20. 27 H. 6. Ward 118. And so the President Trinity 33 H. 8. Rot. 347. in a case between Thomas Earle of Rutland against Lawrence Savage and his VVife in Ravishment of Ward at the Nisi prius the Defendants make default and the Judgment was that the Husband and the VVife should be taken and upon that he inferred that the Husband should be subject and charged with the damages and so it is taken upon the statute of 35. Eliz. That the Husband shall be charged with Debt for the Recusancy of the VVife and shall be imprisoned for the not payment of it as to the verdict it seems that this is good and it shall be intended the VVard was marryed by the Defendants as in 33 Ed. 3. Verdict 48. It is found by verdict that Mulier enters and resolved that this shall be intended in the life of the Bastard or otherwise it is nothing worth and in Fulwoods case 4 Coke the Jury found that the Defendant acknowledged himself to be bound and that shall be intended according to the statute of 23 H. 8. and so here though that it be not found that the VVard was married by these Defendants yet it shall be so intended notwithstanding that nothing is found but only that he appeared married and so he concluded and prayed Judgment for the Plaintiff This case was sollemnly argued this Tearme by all the Justices that is Coke and Walmesley Warberton and Foster and upon their selemn arguments Coke and Walmesley were of opinion that a married wife is not within the statute and Warberton and Foster were of the contrary opinion and so by reason of their contrariety in opinion the Judgment was staid Trinity 9. Jacobi 1611. in the Common Bench. Burnham against Bayne THE case was A Man seised of divers Lands the halfe of them were extended by Elegit and before Judgement was had against him a new Elegit Awarded and if all the halfe which remaines or but the halfe of that which was the fourth part of all should be extended was the question And it was agreed by all the Justices that but the halfe of that which remaines and not the halfe of all which he had at the time of the Judgement But the halfe of that which he had at the time of the Elegit And if all which remaines be extended the Extent shall be void by all the Justices see 10. Ed. 2 Execution 137 16. E. 2. Execution 118. And here the principall case was A man hath a Rent of forty pound reserved upon a Lease for years and two Judgments in Debt were had against him at the Suit of Sir Thomas Cambell and three Judgments at the Suit of the Plaintiff the halfe was first extended by Elegit upon the first Judgment had at the Suit of Sir Thomas Cambell and after upon the Judgment had at his Suit the halfe of the residue was extended and after upon the Judgment at the Suit of the Plaintiff all the residue was extended and all the Justices agreed that the Extent was void for they ought to extend but the halfe of that which remaines and that was but the fourth part Trinity 9. Jacobi 1611. In the Common Bench. Trobervill against Brent THE Case was A man makes a Lease for yeares rendring Rent and after grants the Reversion for life to which Grant the Lessee for years attornes the Grantee acknowledgeth a statute and after surrenders his Estate the Conusee extends the Statute and distraines for the Rent and in Replevin avowes for the cause aforesaid and adjudged that the Avowry was good Agreed that Creditor may sue the Executors and the Heir of the Debtor also but he shall have but one Execution with satisfaction see the Statute of 23 H. 8. for such course in the Exche quer Note that no Court of Equity may examine any matter of Equity after Judgment which was precedent the Judgment see the Statute of 4 H. 4. chapt 23. Trinity 9. Jacobi 1611. In the Common Bench. Hamond against Jethro THe case was this Edward Hamond was Plaintiff in Debt upon a Bill against VVilliam Jethro and the Bill was made in this manner Memorandum that I VVilliam Jethro do owe and am indebted unto Edward Hamond in the Sum of ten pound for the payment whereof I binde my self c. In witnesse and after the in witnesse it was thus subscribed Memorandum that the said VVilliam Jethro be not compelled to pay the said ten pound untill he recovers thirty pound upon an obligation against A. B. c. And in the Count was no mention made of this Subscription but this appears when the Defendant prayes hearing of the Bill the which was then entered Verbatim of Record and upon that the Defendant demurred in Law Harris Serjeant for the Plaintiff agreed that if it had been in the Body of the Bill it ought to have been contained in the Count to inable the Plaintiff to his action but that which is after in witnesse
of Norfolke and Marshall and their Authority and Jurisdiction was absolute and their Judgements not reversable unlesse by Parliament and this appeares by the Statute of 5. Ed. 3. chap. 2. that they might hold Plea of things which did not concerne them of the household and also the words of the Statute of Articuli super chartas chap. 3. 28. Ed. 1. provides that the Marshalsey shall not hold Plea of free hold of covenant nor of any other contract made between the Kings people but only of Trespasse made within the Kings house or within the Verge and of such Contracts and Covenants which one of the honse made with another of the house and within the house and in no other place where Trespasse is Limited to the Kings house or within the Virge but no restraint that the parties shall be of the Kings House or otherwise it shall not be intended which shall be only those which are of the Kings House insomuch that the Trespasse is limited to be made within the Virge also he sayd it was a statute made 30 Ed. 1. which provides that if any causes arise amongst the Citizens of London only that this shall be tryed amongst the Citizens but if it be between them of the House it shall be tryed by them of the House by which it appears that they may hold plea between Citizens of London where none of the parties are of the Kings House also the statute of 6 Ed. 3. chapter 2. provides that in Inquests they shall be there taken by men of the Country adjoyning and not men of the Kings Houshold if it be not betwixt men of the Kings Houshold if it be not for Contracts Covenants and Trespasses made by men of the Kings Houshold of one part and that the same House which referrs to the statute of Articuli super chartas before cited and this expounds and so the Statute of 10 Ed. 3. chapter 2. provides that in Inquests they are to be taken in the Marshalsey that the same inquests shall be taken of men the Country thereabouts and not by People of the Kings House if it be not of Covenants Contracts or Trespasses made by people of the same House according to the Statute made in time of the Grand Father of the said now King and according to that the use hath been that is if none of the parties of were the Kings house then the tryal had been by the men of the country adjoyning And if one of the parties be of the house and another not then the tryall is by party Juries and if both the parâ—ies be of the house then all the Jury hath used to be of the house and if the Cause be between Citizens of London then the tryall hath used to be by Citizens of London and in the Book of Entries the same plea was pleaded in false Imprisonment 9 10. and the Register fol. 1 1. A. in action upon escape in Trespasse and to the Books of 7 H. 6. 30. 10 H. 6. Long 5 Ed. 4 19 Ed. 4. 21 Ed. 4. He saith that none of these Books are in action of Trespasse but one onely and that is mistaken in the principall point and so may be mistaken in one by case And the Booke of 10 H. 6. 30. is directly in the point but Brooke in abridgement of that saith that the practise and usage of the Court was otherwise But it may be objected that this is Indebitatus assumpsiâ— which is in nature of an action of debt and founded upon contract he said that Fitzherbert in his Natura Brevium said that there are two sorts of Trespasses that is General and upon the Case and Trespasse is the Genus and the other are the Species and that the action is founded upon breach of promise which is the Trespasse as for not making of a thing which he hath promised to doe and it is Majesteale breve and not breve formatuâ— and so is an action of Trover and Conversion or Assumpsit are Writs of Trespasse but admit that no yet action of false Imprisonment doth not lye for hee ought not to dispute the authority of the Court for the duty of his Office is only to be obedient and diligent for otherwise he should be judged of the Judg And who by the appointment of the Judge doth any thing doth not seem to do it deceitfully because it is of necessity he should obey and 14 H. 8. 16. a Justice of Peace awarded a Warrant to arrest a man for suspition of Felony where his Warrant was void and yet the party to whom it was directed justifies the making of the Arrest by force of that And 12. H. 7. 14. Capias was awarded to the Sheriff without original yet it was a sufficient Warrant to the Sheriffe and 22 Assis 64. Court awarded a Warrant where they had no Jurisdiction and yet it was a sufficient Warrant for him to whom it was directed And so in Mansells case if the Sheriffe execute an habere facias sesinam awarded upon a void Judgement this is a sufficient Warrant for him So in this case allowing that the Court hath no Jurisdiction yet the Plaintiff cannot be retained by this action but is put to his Writ of Error or to his action upon the Statute and so he concluded and prayed Judgment for the Defendant Hutton Serjeant for the Plaintiff argued to the contrary and hee intended that Judgment should be given for the Plaintiff for the matter and also for the Parties and that the Judgement and all other proceedings in the Marshalsey were meerly void and he denyed that they had originally such absolute jurisdiction as Fleta pretended for originally that was only for the preservation of the peace as it appears by the stile of the Court and also by the diversities of the Courts and that Criminall causes which require expedition are there only tryable and that civill causes are incroached of later times and it was necessary to be restrained and reformed by Parliament And it appears by the Statute of Articuli super Chartas that they have encroached to hold plea for free-hold and for that the Court which is mentioned in Fleta cannot be otherwise intended then the Kings Bench which then followed the Kings Court And also that they have not incroached only upon matters as to hold plea for Free-holds but also to persons and place where Contracts and Trespasses were made and this was the cause of the making of the said Statute And to this action of Trespasse for indebitatus assumpsit there begun he intended that it is for another thing of which they could not hold plea and it might be criminall for Civill is that which begun by contract and it is part of the commutative Justice for which is recompence given by one party to another and is not founded upon the Contract but is translated to an action of Trespass which manner of Trespass is not within the Statute and so he intended that
for the matter it is not within the Statute and then for the persons also he intended that it is not within the Statute and this appears by the words of the Statute of 28. Edw. 1. Articuli super Chartas and to that 10. H. 6. 130. it is adjudged that Judgement in such case there given is void and Coram non Judice so 7 H. 6. 30. expresses the cause to be insomuch that none of the parties are of the houshold of the King 4 H. 6. 8. 19 Edw. 4. 8. 5. Edw. 4. 32 H. 6. Rot. 27. And he cyted also Michelburns Case to be adjudged upon a Writ of Error in the Kings Bench 38 Eliz. That they could not tender a Plea in Trospasse for Trover and Conversion if none of the parties were of the Kings house and further he said that when a Court hath Jurisdiction and errs in matter of proceedings or in Law there the Execution made by force of their Process shall be lawfull But where the Judgement is void by default of Jurisdiction as in this Case there it is otherwise as 10 H. 6. 13. Recovery of Land in the Spirituall Court is void so Formedon commenced Judgment given upon that before the Judges of Assises void So 36 H. 6. 32. Recovery of Land in Wales in this Court is void and 8 Edw. 4. 6. Recovery of Land in ancient demesne is avoidable by Writ of Deceipt But in the other cases before the Judgment and Recovery is absolutely void and Coram non Judice for default of Jurisdiction So in 9 H. 7. 12. b. Recovery of Land in Durham Chester or Lancaster here is void for the same cause And in this case also the said Statute makes that void by expresse words see the statute of Articuli super Chartas Chap. 3. And to the case of 14 H. 8. before cyted of Warrant awarded by Justice of Peace he agreed that insomuch that the Justice of Peace had Jurisdiction of causes of Felony and erred only in the forme and manner of his proceedings and so in all the other cases which were put of the other part And also hee agreed that a Writ of Error may be well maintained if such Judgement which is void as it was in Michelburns case for the party may admit the Judgment to be but voidable if he will And to the exceptions to the pleading that is that the authority is not prosecuted 1 Postea that is such a day which was before the Judgment and yet it seems good and that in the first the authority was very well prosecuted in the 2 Postea was sufficient and the other words that is such a day is but surplusage and so he concluded and prayed Judgment for the Plaintiff and it was adjourned Michaelmas 1611. 9. Jacobi In the Common Bench. Peto against Checy and Sherman and their Wives Triâ— 9. Jacobi Rot. 1151. IN Trespasse and Ejectione firme the Defendants pleaded that one of the Defendants made agreement with the Plaintiff for the said Trespasse and Ejectment with satisfaction and demands Judgment if action upon which the Plaintiff demurred in Law and it was argued by Nicholls Serjeant for the Plantiff that the agreement was no plea though it be said by Keble in the 11. H. 7. 13. That though it be a Plea in Ravishment of Ward quare Impedit and quare ejecit infra terminum insomuch that they are actions personall But Wood denyed that insomuch that Inheritance is to be recovered and in Ejestione firme tearm shall be recovered and for that it shall not be spoken and of this is Wood expresly in the 13. H. 7. 20. b. That in Ejectione firme agreement shall not be a plea insomuch that the tearm is to be recovered which is the thing in demand And there also it is agreed that in Waste brought against Lessee for yeares in the Tenet agreement is good plea and so Vavasor intended if it be in the Tenet but not if it be brought against Lessee for life And also he intended that by Recovery in Ejectione firme more shall be recovered then the tearm only for by that the reversion shall be also reduced and for that the Inheritance is drawn in question and it is said in 11. H. 7. 13. that it shall not be a plea in Assise insomuch that there the Free-hold is to be recovered and by the same reason hee intended that shall be no plea insomuch that more is to be recovered then in Assise for there the Tenant only shall recover the free-hold and his damages but here the Tearm and the Inheritance also are reduced and revested And this is the reason also which is given in 11. H. 7. 13. b. by Fisher That if a man make a Lease for years rendering Rent and after brings Debt for the Rent behind the Defendant cannot wage his Law notwithstanding that the action is personall But this is more high in his nature as it is there said and yet there nothing shall be recovered but only damages for which a man may have satisfaction Also he intended that it was not well pleaded that is that such agreement was had between the Plaintiff and one of the Defendants and betwixt those shall be intended those two only and also Ipsum and Alios by his commandâ—ment and doth not shew that this was made by the other two by his commandement and so he concluded and prayed Judgment for the Plaintiff Shirley Serjeant for the Defendant that the Plea is good and that the nature of the Action is only Trespasse by force and arms and differs from a Quare ejecit but Ejectione firme differs from predict infra terminum and lyes against the immediate Ejector but Quare ejecit lyeth against him which hath title as he in reversion 7 H. 4. 6. b. Ejectione firme was brought by Executors of Land let to their Testator for years upon outing of the Testator by the statute of 4 Edw. 3. Chap. 6. which gives action for the Executors of goods taken out of the possession of their Testator and it seems to him also that proces of Outlawry lyes in an Ejectione firme but in Quare ejecit infra terminum only summons So it is 11. H. 7. 13. There is a great difference between Waste and this for there the Process is Distress and other speciall Process But so is it not here but only the Process which is in other generall actions of Trespasse and so is the expresse opinion of Keble in 11. H. 7. 13. That in ravishment of Ward Quare Impedit and quare ejecit infra terminum that agreement is a good plea and yet all these trench upon the Realty and in ejectione firme if the tearm expire hanging the action this shall not abate the Writ but the Plaintiffe shall have Judgement for his damages otherwise in a Quare ejecit infra terminum And it was resolved 20 Eliz. That if an ejectione firme be brought at the common Law of Lands in
without title he may have an action of Covenant for the Lessor hath the Evidences and ought to defend the possession of his Lessee and the right also and damages are only to be recovered and so is the difference between a Lease and Inheritance though that the words of the Covenant are all one And also he said that it may be objected that the Incorporation was not well pleaded by Edw. 6. Insomuch that he doth not say after the Conquest for Ed. 3. was Ed. 6. in truth sor there were 3 Edwards before the Conquest and he was the third after And he saith that he hath known many exceptions to be taken to that but hath not known any of them to be allowed and for that he will not insist upon it But the principal matter upon which he insists was that it doth not appear by the pleading that the Deane which made the Lease was dead and it appears by the pleading that he entered in 4 Jacobi and was seised and then of necessity ought to be living and such averment of his life is sufficient as it is agreed in the 13 Eliz. Dyer where a Parson made a Lease for years and the Lessee brought an Ejectione firme and in pleading it was said that the Parson is seised of the reversion and this was allowed to be good without other averment of his life for he cannot be seised if he be not living and then if the Deane shall be intended to be living then they all agreed that the Lease shall be good against him for it was adjudged in this Court between Blackeleech and Smal that if a Bishop makes a Lease for years and after makes a Lease for life the Lease for years being in Esse and dyes and the Successor accepts Rent this shall bind him and by this it appears that the Lease was good against the Dean himself which made it and also against the Successor till he enter and avoid it and then by consequence the action of Covenant shall be very well maintainable and so he concluded also that Judgement should be given for the Plaintiff which was done accordingly Pasche 1612. 10. Jacobi in the Common Bench. Browning against Strelley MIchael 2 Jac. Rot. 531. In debt the Margent of the Count contains Nottingham and the Count it self contains that the Obligation was made at the Town of Nottingham which is a County of it self and the Defendant pleads non est factum and the view was of the Town of Nottingham and it was tryed by the Jury of the County of Nottingham and this was moved in arrest of Judgment after verdict for the Plaintif by Nichols Serjeant And it was agreed by all the Justices that Judgment shall be given accordingly to the verdict insomuch that notwithstanding that the Town of Nottingham is a County of it self yet it may be that some part of the Town may be within the County and for that possibility they would not arrest the Judgment Ireland against Smith IN action upon the Case for these words the Plaintiff counts that he was and is Proctor in the Arches and in communication between one Morgat and the Defendant of him the Defendant said to the said Morgat You take part with Ireland against me who is an arrant Papist and hath a Pardon from the Pope and can help you to such an one if you will And after verdict it was moved by Hutton Serjeant in arrest of Judgment that the action doth not lye and he saith that it hath been adjudged in this Court 3 Jacobi Rot. 7031. between Kingstone and Hall that an action doth not lye for like words he is an arrant Papist And it were good that he and all such as he is were hanged for he and all such as he is would have the Crowne from the Kings head if they durst And it was adjudged that an action doth not lye for these words which are more strong then the words in this action but of the other part it was said by Haughton Serjeant that he did not insist upon these words that he is a Papist but that he had obtained a Pardon from the Pope the which by the Statute of 13 Eliz. is made High Treason and then notwithstanding that no time was limited when the Pardon should be procured that is before the Statute or after yet it shall be intended such a Pardon which is against the Statute for the presumption of the Law shall be taken in the worst sense and not like to the Case where a man saith to another that he hath the Pox And also it is alledged by the Count that the Plaintiffe is not above the age of 40. years so that he cannot obtain a Pardon before the Statute of 13 Eliz. And for that he supposed that the action is very well maintainable Coke cheif Justice said that it was adjudged in the Kings Bench in the time of Catlyn cheife Justice there that an action upon the Case doth not lye for calling a man Papist And Winch Justice said that if a man call a Bishop or another man which is trusted with government of the Church and Ecclesiastical causes that he thought the action lyes otherwise not Also he supposed that the Pardon might be for Purgatory or other matters which are not within the Statute of 13 Eliz. And also the Pardon may be procured by another and come to his hands by delivery over afterwards that it had passed two or three and the averment is not sufficient for it is onely Implication and Inference Coke and Warberton Justices sayd that a Papist is one that errs in his opinion and though that the Papists are Authors of many Treasons yet the Law doth not intend so and so of Heretick which is alwaies in a fundamentall point of Religion and yet an action doth not ly for calling a man Heretick also the Pope is a temporall Prince in Italy and for this cause also may pardon and this is out of the statute of 13 Eliz. and so they all agreed that the Action doth not ly for these words Pasche 1612. 10 Jacobi In the Common Bench. Marstones Case IN a common Recovery the Tenant appears by Attorney and vouches one which is present in Court which appears and vouches the common Vouchee and the Attorney hath a Warrant of the party acknowledged before a Judge but this was not entred of record and this was in Hillary tearme 16 Eliz. And it was moved by Dodridge the Kings Serjeant that the Warrant of Attorney might be now amended and entred upon the record and Coke supposed cleerly that it shall not be entred insomuch that it is a want of a Warrant of Attorney but if there had been a mis-construing of the Warrant of Attorney otherwise it is for this seems to be within the Statute of 27 Eliz. Chapter 5. Concerning amendments In Debt upon an obligation with condition to perform Covenants in an Indenture of Lease the Defendant pleads that after
awarded good because it comes in Lieu of Goods which they had as Executors and shall be Assets in their hands as the Goods should have been and for that it is well brought in the Detinet only And they said that in the principall case it shall be mischeivous if the Action shall be brought in the Debet and Detinet for it may be the Rent reserved is of more worth then the Profits of the Land will amount unto and that the Executors or Administrators have no other Assets now shall be the Executor or Administrator be charged with his own proper Goods which shall be mischeivous and the case of 10. H. 7. 5. and 6. that is direct in the point was often times cited and all these three things which were of councell with the Defendant informed the Court that they were of Councell with Hargrave when the Judgement given in the Kings Bench was reversed for Error in this very point and for this cause because the Action was brought in the Debet and Detinet where it should be in the Detinet only And so they praied that the Judgement should be hindered But by the whole Court except Yelverton And so it was adjudged that the Action was well brought as it is and especially for the reasons given in Hargraves Case 5. Coke 31. And to that which hath been said by Yelverton Justice that in all cases where Executors are charged by the name of Executors or Administrators that there the Action shall be against them in the Detinet only Flemming cheife Justice answered that â—rue it is in all personall things where they are named as Executors Action shall be in the Detinet But as it is an Action of Debt for Rent reserved upon a Chattell reall and an Executor is as an Assignee in Law and so charged as privy in Estate and not meerely as Executor and if he have no more Assets then the Rent which he is to pay he may plead nothing in his hands against all the World and to that that hath been said that the Executor hath been charged of his own Goods If the profits be not more then the Rent or the Rent more then the profits to this he said that in this case where the Executor hath the Tearme and hath not any other Assets that they may wave this Tearme And in Action of Debt brought against him for the Rent may plead to the occupation and that recover The reason of the diversity between this case and the case of 28. H. 8. Dyer 14. is plain for in an Action of Debt against the Termor himselfe Non habuit nec occupavit is no Plea for there was a contract between them and for this privity of contract is the Lessee charged though he did not occupy But in the case of an Executor the privity of the contract is gone and so may be a difference But yet it seemes if he have Assets sufficient to pay the Rent he cannot wave it And to the case 14. H. 4. 28. that hath been cited that doth speake nothing how the Action should be brought And the Justices have seen the record of Hargraves case and the Reversall of that And they said the same error which was in Hargraves case is in this case and for that bring your Writ of Error in the Exchequer chamber if you will for we so adjudge And then it was moved that the Lord Rich was Tenant in Tayle of part of the reversion and Tenant in Fee-simple of the other part and so it seemes that he ought to have two Actions because he hath as two reversions But it was resolved by all the Court that if a man have a reversion of part in Fee-simple and of the other part in tayl and makes a Lease for yeares rendring a Rent he shall have but one Action both being in the hands of one But otherwise it had been if the reversion had been in severall hands they should not Joyne in Debt and for that Fenner put this case two Coparceners are of a reversion and they make partition now the Rent is apportioned and they shall sever in Debt But if one dies without Issue and the part discends to the other Parcener now he shall have but one Action of Debt againe and so it is if a man makes a Lease of two Acres rendring Rent and after grants the reversion of one Acre to J. S. and of the other Acre to J. N. now they shall sever in Debt for this Rent but if J. S. and J. N. Grant their reversions againe to the first Lessor he shall have but one Action of Debt and so the exception dissalowed by all the Court and the Judgement given for the Plaintiff according to the Verdict Yates and Rolles THe case was this J. S. covenants by Indenture with J. N. I. D. and A. B. to enter Bond to pay ten pound to J. N. and J. N. dies and his Administrator brings a Writ of covenant and the question was insomuch that this ten pound was to be paid to J. N. if his Administrator shall have Action of Covenant or if the Action shall survive to the other two and it was moved by Stephens that the Action shall be well brought by the Administrator for this shall be taken as a severall covenant and this now is in nature of a Debt and enures only to him which shall have it also the payment of the money which is the effect of the covenant shall be to him only Ergo the Damages for the not performing of it shall goe to him also and by consequence to his Administrator But it was adjudged insomuch that this was a joynt covenant that this shall survive to the others and not well brought by the Administrator So also resolved that insomuch that the words are that he would enter Bond and doth not say to whom that this shall be intended to the Covenantees and though that the Solvendo is but to one of them yet that is very good as an Obligation made to three Solvendum to one of them is good by Fenner and by Williams Obligation to two Solvendum ten pound to one and ten pound to another both ought to joyne in Debt upon this Obligation and Judgement for the Defendant Sammer and Force THe Case was this The Lord of a Copy-hold Mannor where Copy holders are for life grants Rent-charge out of all the Mannor one Copy-hold Escheats the Lord grants that againe by Copy the question was If the Grantee shall hold it charged or not and by the whole Court but Fenner he shall not hold it charged because he comes in above the Grant that is By the custome the same Law of Statutes Recognizances or Dowers but the 10. of Eliz. Dyer 270. by the whole Court that he shall hold it charged but this hath been denyed for Law in a Case in the Common Bench between Swaine and Becket which see Trinity 5. Jacobi But to Coke Justice it seemed that
Subject may do it but till he be delivered by due course of Law for the commitment is not absolute but the cause of that is traversable and for that ought to justifie for speciall cause for if the Bishop returnes that he refuses a Clark for that he is Schismaticus Inveteratus this is not good but they ought to returne the particuler matter So that the Court may adjudge of that Though it be a matter of Divinity and out of their Science yet they by conference may be informed of it and so of physick And they cannot make any new Laws but such only which are for the better government of the old and also he said plainly that it appeares by the Statute of 1. Marie That the former Statutes shall not be taken by equity for by these the President and Commons have power to commit a Delinquent to Prison and this shall be intended if they shall be taken by equity that every Goaler ought to receive him which is so committed But when it is provided by 1. Marie specially that every Goaler shall receive such offenders That by this appeares that the former statute shall not be taken by equity And so he concluded that Judgement shall be entred for the Plaintiff which was done accordingly Trinity 7. Jacobi 1609. In the Common Bench. IN Debt upon escape brought by John Guy an Attorney of the Common Bench by an Attachment of priviledge against Sir George Reynell Kt. Deputy Marshall of the Prison of the Kings Bench the Defendant pleads his priviledge that is that he was Deputy Marshall and he ought not to be sued in other Court then in the Kings Bench according to the ancient Custome and Jurisdiction of the sayd Court upon which the Plaintiff demurred and upon argument of both parties it was adjudged that the Defendant should not have his Priviledge and the principall reason was for that the Plaintiff was an Attorney and ought to have his priviledge in the Common Bench and for that that this Court was first possessed of the Suit it shall not be stayed because of the Priviledge of the Defendant in another Court see 9 Ed. 4. 53. the last case where it is agreed that one of the Courts may send Supersedeas to another for there it is agreed that if an Accountant in the Exchequer be sued in the Common Bench he shall send Supersedeas to them to surcease and if he be sued in the Kings Bench these of the Exchequer will shew the Record that he is accountable for they cannot make Supersedeas to the King and the Plea is there held Coram Rege c. And he shall be dismissed for he may be sued in the Exchequer and also 10 Ed. 4. 4. b. It appears that if one which hath cause to have priviledge in the Common Bench sue an Attachment as our case is against a Clark of the Kings Bench such Writ shall not be allowed for that that the Common Bench was first seised of the Plea by their Plea and the Priviledge of the common Bench is as ancient as the Priviledge of the Kings Bench and one Court is as ancient as the other for every of them is before time of memory and it is by prescription Walmesley sayd that the Possessory shall be preferred Quia melior est conditio possidentis but he agreed that if the priviledge of one Court be not so ancient as the other then the most ancient shall be preferred and it was agreed that though there be Difference in respect of parties or though that the attendance of one be of more necessity then the other as it was objected in this Case that the Defendant ought to attend otherwise he shall loose his office to that it was answered and resolved that the cause of the Suit in the Common Bench was voluntary and the attendance of the Attorney or Clark more necessary then of the Defendant for hee may exercise his Office by a Deputy but a Clark or an Attorney cannot for their office is Opus Laboris But the Office of the Defendant is only Opus Labrum and he is to deal with Gyves and Irons and such like so that in this Case the Office and place of a Clark or Attorney is to be preferred before the Office of Marshall but admitting that one Inferiour Officer of the Common Bench which is to have his priviledge sue a superiour Officer of the Kings Bench which is also to have his Priviledge there this shall not make any difference And so was the opinion of all the Court and upon this Judgment was given that the Defendant should answer over Trinity 7. Jacobi 1609. in the Common Bench. IN Assise between William Parson alias Chester Plaintiff against Thomas Knight alias Rouge Cross tenant for the office of one of the Heraulds called Chester the Recognitors of the Assise had view at a Funerall at Westminster where the Officer ought to attend and it was objected that this was no good view for it was not in any place certain where the Recognitors may put the Demandant in Possession and the Disseisin was alledged to be at Westminster at the sayd Funerall and it seems that the view was good but admitting that it were not good It seemes to Coke cheif Justice that the Assise in this case well lies without view for the Office is universall as the Office of the Clark of the Market and an Assise for Tithes and the Office of the Tennis Court these are universall and not annexed to any place and for that an Assise wel lies for them without view but for an Office in the Common Bench view may well be made in the Court for the Court is alwaies held in a certain place but for an Office in the Kings Bench Quere Inquit Coke for this ought to follow the Court of the King by the Statute of Articuli Cleri Chapter 3. But Walmesley Justice that this Court cannot be sitting in Clouds but in some place or other and for that the view ought to be here made and then Coke sayd by the same reason the Office of the Herauld cannot be exercised in the Clouds but at Funeralls and by this the view ought to be made there also but the Opinion of all the Court was that the view was well made the Tenant in Assise also challenged diverse of the Recognitors for that they were of a former Jury upon the same question and this was agreed to be a principall cause of challenge but the Court would not allow of that without shewing the Record but allowed that to be a cause of challenge for favour and for that they were tryed by their Companions being sworn to speak the Truth and they were found to be indifferent and for Seisin for the Demandant in the Assise it was shewed that diverse Fees were due to the sayd Office as seven pound for every day that he attended upon the Kings person and for the Dubbing of
wine or peices of Cloath and one Tun of Wine to one man or a peice of Cloath to one man and another to another man till he hath sold all that this was not retailing but they cannot sell by the yard or keep a shop but it was also agreed that some goods a man might sell as well in their Market if he do not keep a shop here without any offence and it was objected that this By-Law was not good for that it was for private good and also the penalty which was to be inflicted was too great For first the Maior Aldermen and Citizens make the Law the suit for the penalty ought to be before the Mayor and the Maior and Citizens ought to have part of the Penalty so that the Mayor shall be Judg in his own cause which also was one of the Reasons of the Judgment in the Chamberlain of Londons case 5. Coke for that that the penalty was so small that is a penny for every cloth which shall be sold in Blackwell hall and this was for publick good for here shall be search if it were good and merchantable but it was agreed by all that every Town may make a By-Law which is pro bono publico without any prescription or custome and this shall be good and being made by the greater part shall bind the residue but if it be for private good as for the ordering of the common or such like shall not be good to bind any man without his assent without speciall custome according to the Judgements in the Chamberlaine of Londons Case and Clarkes case 5. of Coke in his cases of By-Lawes But Coke is cleer that the remedy that is the By-Law was good and agreeing to the custome in every point and that the penalty was fit and good and for quantity and quality and that to the quantity he agreed that they could not inflict confiscation of Goods nor Imprisonment but may inflict pecuniary punishment as it appeares by Clarkes Case and the Action may be brought for that so that for the quality it was good And so as to the quantity which was Secundum quantitatem dilicti for he conceived it was a greater offence to hold a private shop then publick for this is not in view nor subject to search reformation as wel as if it were publick and for an old Act of Common Councel he which keeps a publick shop shall forfeit ten shillings and clam delinquens punietur magis quam palam now the ounce of silver is increased in value for it is worth five shillings four pence and then it was worth but three shillings four pence and so for quantity and quality Et congruum ratione causarum And it seems to him that it is not Bona fide that a Forrainer should hold a private shop but Dissentaneum for London is a Market overt every day in the Weeke but Sunday as it appears by 11 H. 6. 19. And in Dunstable the Prior brought an Action against a Butcher for that that Dunstable was an ancient Town and that this was a market overt two dayes in the Week and the Defendant sold flesh in an inward roome the Defendant pleads custome to warrant that and adjudged that it was not good for the usage of Trade in such Corners is not Bonae fidei consonant and after he pleaded that he sold the flesh in an open shop in the Market and this was allowed to be a good Plea and if it be so in Dunstable a fortiori it shall be so in London and for the same reason also it shall not be Rationi Consentaneum to hold such inward shops and also it is for Communi utilitate that is of the Citizens of the King and of all others that Forrainers shall not hold any shops in London for it appears by the return that Forrainers shall not be subject to Scot and Lot in London and shall not be Officers which are matters of great charge so that if it shall be so they should be preferred before Free men and without question it is discomodious for the Citizens that any Forrainer should use any Trade here and it would be a distruction to Citizens that a Forrainer should not be subject to their charges and yet should take benefit of the Trade within the City Secondly And for the Benefit of others that strangers should not be received to use any Trade within the City for this is the cause of Depopulation depradation and distruction in all other Townes and Burroughs in England which is prejudice to all others Thirdly it is prejudiciall to the King that such a company of Inhabitants should be resident in London which is Camera Regis for this is the cause of Iufection of the Aire and sicknesse so that the King and all the State is prejudiced by it but the sole doubt which was conceived by Coke was for that that it doth not appear by the return that the Defendant had used the Trade of Tallow Chandlor nor sold any Candles but only that he kept a shop and used the mistery of making Candles but if the return had been that he used the Trade of Tallow Chandlor this had been good for that implies Tantamount for that had been that he had sold for Trade is in Tradendo which is to deliver over and the Intent of the act is not that hee shall be punished for making of Candles if hee do not sell them for the sale is the wrong and so the Servant of every Noble man or other which makes Candles or other thing for his Master or for his own use should be within the penalty of the Act and with this agreed Foster and Daniel and for this cause only it was resolved that he should be delivered and not remanded Hillary 7. Jacobi In the Common Bench. Cholke against Peter THE Case was this The Lord Rich being seised of the Chase of Hatfeild granted and sold to Sir Thomas Barrington Knight and his Heires all the Wood growing and to grow upon a part of that and excepted the soyl and further that he might inclose every sixteen Acres of that and this to hold in severall for the Prservation of the spring according to other Statutes of the Realm and this Grant was confirmed by a private Act of Parliament and that the Grantee might hold it in severall without suit of the Kings Officers with a saving of the right of all strangers and a Commoner put in his Beasts to take his common in one parcell of that which was inclosed against whom the Grantee brought an Action of Trespass and in this the only question was if this Grantee of the Trees which had not any Interest in the Soyl might inclose against a Commoner by the Statute of 22. Ed. 4. chap. 7. was the question for it was agreed that if a man grant Trees growing and to grow to one and his Heires and except the Soyl the Grantee hath Fee-simple in the Trees
have Elegit and for that being in Prison he prayed execution of his Body and had it but if the party gets out that he hath no execution that it is not his default he shall have Elegit after for that that he cannot have his purpose according to his first election And if any be in this case then upon that he inferrred that the party in this case may have a Fieri Facias against the Executors And also it is resolved by the whole Court in the Common Bench 29 H. 8. B. Execution 132. That if two are bound in an Obligation conjunctim devisim the Obligee impleads one and hath execution of his body and after impleads the other and condemns him hee may have Execution against him also for the taking of the body is good execution but it is no satisfaction and therefore he may take the other also but if he have satisfied the Plaintiffe he shall not have execution afterwards And therefore this Order that the Plaintiff upon an Obligation shall have but one Execution is intended such an Execution which is a satisfaction See 33 H. 6. 48. b. 4 H. 7. 8. 4 Edw. 4. 38. 5 Edw. 4. 4. 5 Coke 92. Blumfields case resolved by all the Court that if the Defendant in debt dye in Execution that the Defendant shall have new execution by Elegit or Fieri Facias for the death of the Defendant is the act of God which shall not turn the Plaintiff to prejudice as it is said in Trewynyards case 38 H. 8. Dyer 60. The Plaintiff shall not be prejudiced of his Execution by act in Law which makes no wrong to any And to the first Objection which may be made against him that is That all processe are determined after the party is taken and in execution to that he answered that this is where the Plaintiff hath satisfactory execution as it appears by 41 Edw. 3. 13. where an action of Account was brought against two one was out-lawed and the other comes by the Exigent and enters in the Court and he which was out-lawed obtained his charter of pardon and for that that processe was determined against him And the Plaintiff hath chosen to have his action against the other he prayed that he may be discharged But it was resolved that the processe was not determined nor he which was out-lawed shall not be discharged till the Plaintiff be satisfied by which it appears that the process is not determined till execution with satisfaction Two other Objections also he endeavoured to answer that is that the Plaintiff hath determined his election by taking the Capias and that cannot resort to any other Process and to that he agreed that where the party hath made such election that he cannot resort to any other Process during the life of the party But if the satisfaction be prevented by the act of God as in the principall case But when his person which was the pledg for the debt and was to remain in prison till the debt be satisfied is discharged by the act of God and the Plaintiff hath not the fruit of his Suit nor the Judgement is not satisfied and the Plaintiff hath done all that hee can and there was no defect in him it is no reason but that he may have new processe and the third objection is a Judgment which was given in the Kings Bench Pasche 43. Eliz. Rot. 58. between Williams and Curtiz And to that he said that he he conceived that this was a rule for default of prosecution for the cause was referred to Arbitrement and so hanged for long time and so though the Judgment was directly against Law in the principall points yet for that that it was not upon solemn argument of the Judges hee saith it is not to be compared to other authorities by him cyted before for which he includes and prayed Judgment for the Plaintiff Hutton Serjeant that argued for the Defendants conceived the contrary and first he examined how the body of a man cometh subject and lyable to any Execution and to that he said that by the Common Law the body was not subject to Execution for the debt of any man but in accompt only a Capias ad computandum lyes and no other processe in this action but distresse infinite till the Statute of Marlbridge Chap. 23. and West 2. Chap. 11. Capias was given in Accompt for by the Common Law the Processe in that was Distresse Infinite as aforesaid and after by the Statute of 25 Edw. 3. Chapter 17. Such like Processe was given in debt as in accompt and before that the body of the Defendant was not lyable to execution for debt if it be not in the Kings case as it appeares by Sir William Harberts case 12. a. And upon this he inferred upon the words of the Statute of 25 Ed. 3. Chap. 17. which saith that such like Processe shal be in debt as were in accompt That after the Plaintiff hath determined his election and taken a Capias that then he is in the same case as if it had been in accompt and for that he cannot resort to any other Processe And he said that the words of the Elegit and Fieri Facias do not differ in substance from the words of Capias for there is to satisfie the party as well as in the other And when a man hath made his Election to have Elegit he shall not have other Execution But when the Defendant hath neither goods nor Lands Then qui non habet in are licet in Corpore and the Plaintiffe at the first when he hath Judgment hath election to have Fieri Facias Elegit or Capias then he cannot have fieri facias but if he determine his Election at the first and sue Elegit or Capias then he cannot have fieri facias but may first sue fieri facias and after Elegit or Capias as it appears by the 15 H. 7. 15. 14 H. 7. 28. and 7 H. 6. 7. But if it be upon Statute staple Then he may have execution for his Body Goods and Land together as it appears by 31 H. 6. 47. Lynnacres Case is put in Blunfields case 5 Coke 92. b. and 15 H. 7. 15. But the reason of this is that a speciall Execution by statute is given in this case And he agreed that where a Judgement is given against 2 or 3. and the Plaentiff sue Capias against one of them by that he hath determined his Election So that if he dye in Prison or otherwise he may sue another Capias against the others but he cannot sue fieri facias or Elegit as it appears by 33 H. 6. 47. before and Blunfields case 5 Coke 92. b. 4 H. 7. 8. And he said that the body is the principall and becomes chargeable by statute and it appears by 22 Assis 43. That when the party is in Prison that this is adjudged in Law an Execution for the party and further in the
Office by Deputy without special words of Deputation in the Patent for he conceived that it is not meerly an Office of trust for he hath not the keeping of any Records for the Courts of which he was steward were not Courts of Record and yet that all the Books are that ancient grants of Office of stewardship contain that the Patentee may exrecise Per se vel per sufficientem deputatum suum though they are not of Courts in which the steward is Judge but the suitors but if a Grant be of such an Office of Inheritance then there needs words of Deputatum for here it is apparent that there was not special trust reposed in the Patentee And he also agreed that if it be not an Office of profit the Grantor may enter and out the Patentee but the fee shal remain as it appears by the 31 H. 8. Brookes Novell Case and 18 Ed 4. And it was not the intent of the Queen that the Earl of Rutland should execute the Office in person for that should be an undervaluing of him the which he sayd was proved by Sir Robert VVrothes Case in the Commentaries where an Officer to the Prince was discharged of his attendance by alteration of quality of the Prince and making of him King and yet the Fee remained And to the second it seems that the patent hath expresse words of Deputation And the third Grant which hath a reference to the Grant precedent and al the words being put together make a perfect Grant and this such construction hath been alwaies made of Grants of the King as it appears by Sir John Mullyns Case 6 Coke 56. And Justice VVindhams case 5 Coke 7. a. So if the King makes a Lease of a Mannor except a Grove next to the Mannor this shal be intended next to the Mannor House for otherwise it shal be out of the Mannor and so the exeption voyde but Coke and Foster doubted of that And to the third point that the Action was maintainable Vi armis for when the Deputy of the Earl of Rutland proclaimed the Court as Deputy of the Earle of Rutland and these Defendants proclaimed that as stewards of the Earl of Shrewsbury and after adjourned that and after held all the Courts and received the profits it seemed to him that for this outing and disturbance which is disseisin action upon the case lies Quare vi armis as wel as in the Book of Entries 15. two men had Warrens adjoyning and one of them puts Cats and other vermine into the Warren of the other to destroy it and the Action of trespasse Vi et armis lyes and so for menace action of trespas Vi armis lies as it appears by 3 H. 4. and this disturbance is sufficient to maintain an Assise and upon that he concluded that the Plaintiff in the Action ought to recover and to have Judgment And Harris the younger Serjeant argued that the Grant is not good for default of certainty as to this Grant of Stewarship for the Grant is of the Office of Stewardship of the Mannor of Mansfeild and doth not shew where the Mannor is nor in what County and it appears and is put for a Rule by Hussey cheife Justice in the 25. of H. 7. 60. b. That when a man wil have advantage of Letters Patents of the King it behooveth that they extend certainly to things of which he wil have advantage see 2. R. 3. 7. a. By Hussey 44. Ed. 3. 17. 5 Ed. 4. Garters Case 17 Ed. 3. 15. and Doddingtons Case which is Hill and Pext 2 Coke 1. 31. b. If the Town be misnamed it is good if there be another certainty but if it be not named at all otherwise it is And to the Point moved by Hutton he concived that this Office of Stewardship could not be exercised by a Deputy as it appears by Littleton in his Chapter of Estates upon condition where he saith that there are Estates upon condition in Law of which Stewardship is one fol. 89. Sect. 379. That cannot make Deputy without speciall Grants and with this agreed Sir Henry Nevills Case Com. 379. and Long 5. Ed. 4. 26. b. and by 21 E. 4. 20. and Sir Henry Nevills Case before he could not grant over his office but if he do not attend to the Execution of that it is forfeiture 11 Ed. 4. so if he wants skill 29 H. 6. 42. Per totam curiam He conceived that the Law doth not make any difference between the person of an Earl and another to the executing of this Office and that the words of the Patent do not contain words of deputation for in the Grant the words are Habendum Officium predictum breifly written Cum omnibus vadis feodis eidem Officio sue ratione ejusdem c. The which last words are expository of the first that is that it shal be intended that the Office is contained in the last Grant and shal not be referred to a Grant precedent in which the Stewardship is contained and also he conceived that this Action upon the case doth not ly Quare vi armis as it appears by Fitzherberts Naturabrevium 86. H. Where it is sayd that in trespass upon the case these words Vi armis are contained in the Writ shal be sufficient cause to abate the Writ see 11 Assise 25. He which councels to make Disseisin shal not be a Disseisor with force for he ought to do some manual Act either to the person or to the possession see 41 Ed. 4. 24. a. and 44. Ed. 3. 20. b. And so he concluded that this Action is not maintainable and that Judgment ought to be given for the Defendant for the causes aforesayd This Case was argued again by Nicholls Serjeant for the Plaintiff and by Dodridge the Kings Serjeant for the Defendants to the same intent and it was urged by Dodridge that the Patent containes three several expresse Grants which are distinct Grants in themselves as there be three distinct severall Patents though they have but one Parchment and one Seale and if the King grant the Office of parkship of two parks by one self same Grant if the Patentee be disseised of them he may have several Assises though that it be but one self-same grant And he agreed that the words officium predictum in the 3. grant shall be intended officium predictum and so supply the defect in the second grant if it were not limitation of the estate in the second grant but for that that the second grant was perfect in it self there need not of necessity any such construction and that these words shall be referred to the last words appeares by the last words of the habendum that is cum vadis feodis eidem officio aut ratione ejusdem officij and these Relatives are exposition accordingly And to the objection of the clause of Assistance in the end of the Patent he answered that if the grant were ill
although another take away part of my Common yet no action lyeth As if one beat my servant lightly except the Master lose his service no action lieth And if my friend come and lye in my house and set my neighbours house on fire the action lyeth against me and Judgment for the Plaintiff HAtton versus Hun Trin. 13. Jacobi rotulo 3314. In Trespasse and Imprisonment the Defendant justifies by vertue of a Capias and the Plaintiff did afterwards escape and he being Sheriffe did follow him by vertue of the said Warrant taken upon the Capias the Plaintiff replies that he escaped by license of the Sheriffe and traverses the latter taking by vertue of the Warrant and the Court held the traverse idle because the Plaintiff had sufficiently confessed and avoided and if he escaped by the Sheriffs License that ought to be the thing put into issue and not the traverse PAtry versus Wilsh Trin. 9. Jacobi rotulo 1055. An action of Trespass brought wherefore by Force and Armes he broke the Plaintiffs Close and eat his Grasse c. The Defendant justifies for common of pasture and saith that he was seised in Fee of one Messuage with the appurtenances in G. and used to have common for all his Cattell levant and couchant upon the said Messuage And it was moved after a verdict in arrest of Judgment by Sergeant Nichols that the plea was insufficient because the certainty of the Cattell was not expressed as for 200. or the like but the Court held the contrary that levant and couchant is a certainty sufficient and all the Books prescribe for a Common by reason of a Messuage RInghall versus Wolsey Mich. 11. Jacobi rotulo 820. An action of Trespass brought wherefore by force and Armes the servant of the Plaintifs out of the service of the said Plaintiff hath taken and laid to be at H. The Defendant justifies that one was possessed of Corn at S. And that the said servant by the command of his Master had carried away the Corn and that the Owner came to the defendant being Constable and prayed him to detain the servant untill hee could procure a Warrant of a Justice of Peace and traverses that he is guilty at H. The Plaintiff demurres that it was held by the Court a naughty plea First because the Constable could not detain any man but for Felony And secondly the traverse is naught because the Trespass is in the same County and so he might have justified as well in H. as in S. DArney versus Hardington Pasch 9. Jacobi rotulo 1857. An action of Trespass brought to which the Defendant pleads a justification for an Amerciament set in the Sheriffs turn to which Justification exceptions were taken First because the Defendant justified by vertue of a precept to him lawfully granted saith not at what place Secondly he prescribes for the turn to be held and doth not any or what estate c. And Hutton said that a prescription for a turn or one hundred Court by what estate is naught because a hundred is not manurable but lies in grant but he ought to have said that the King and all they that were seised of the said Hundred have had and from the time c. And my Lord Cook said that a prescription by what estate for a thing incident to a Mannor is good for an Hundred that lies in grant it is naught And he and Warburton held that except it was shewed before whom the turn was held it was naught because where any thing is taken by common right as the Sheriffs turn it ought to be holden before the Sheriff as in the prescription it ought to be shewed before whom the turn was held or else it would be naught ROberts versus Thacher al. Hill 11. Jac. rotulo 1928. An action of Trespass brought wherefore by Force and Arms the Close and House of the Plaintif at A. did break and a certain Cow price c. took The Defendant saith that the Plaintiff ought not to have his Action against him because he saith that the Close House is one Messuage c. in A. aforesaid and that before the time in which c. such a one was possessed of the said Cow as of his own proper Cow to wit at A. aforesaid and being thereof so possessed certain Malefactors unknown to the said c. before the said time in which c. the said Cow out of the possession of the said B. did feloniously steal take and lead away whereupon he made Hue and Cry and thereupon hee had intelligence came and was in the possession and custody of the Plaintiff and B. upon notice thereof did request the Defendant to ask the Cow of the Plaintiff and to bring her c. By reason whereof the Defendant the said time in which came to the said Messuage by the usuall way by and through the said Close c. to demand c. And the Defendants then there finding the aforesaid Cow in a wall'd parcell of the Messuage they took the Cow from thence and brought her to the said B. and to him delivered her as c. which is the same Trespass to which plea the Plaintiff demurres and it was adjudged a naughty Justification for these reasons First because it doth not appear but that the Plaintiff had good right to the Cow Secondly because the Defendant took the Cow without demand And thirdly it is not pleaded that the Defendants were servants to the said B. R. and that he did it by his command and therefore Judgment given for the Plaintiff HAll versus Stanley al. Pasch 9. Jacobi rotulo 2289. An action of false imprisonment The Defendant as to the whole Trespass except the Battery and Imprisonment and keeping in prison not guilty And as to that pleads that the Marshals Court is an ancient Court c. and so justifies because the Plaintiff was the pledg of T. C. to the Defendant in an action of trespass upon the case in an indebilat assumpsit generall and thereupon a Judgment against C. and a Capias awarded and a non est invent returned and thereupon a capias awarded against Hall the pledge according to the custome by vertue whereof the said Hall was taken and detained and traverses that he was guilty c. of any imprisoning the Plaintiff before such a day and averres that they are the same persons And the Plaintiff replies that neither R. C. nor T. T. at the time of exhibiting the Bill were of the houshold c. The Defendant demurs and Judgment for the Plaintiff and the whole Court agreed that the Marshalls Court could not hold Plea Covenants and Contracts except both of them were of the houshold of the King and all the matters of which they could hold plea were Trespass Covenants and Contracts of the houshold and within the verge to wit within twelve miles of the Court and Doddridge said that before the Statute of 28