the now Tenant Henry Gee as is before alledged and that the said Henry was then seised of the said Tenements in Fee in right of the said Eliz. then his wife and although that he alledge the said severall Feoffments to be made by Deeds indented with the reservation as aforesaid yet it is not mentioned in the Replication that he shews forth the Deeds wherby the reservation was made To which the Tenant by way of Rejoynder shew the Feoffment made by the said Eliz. Shalcroft to the said William Greenditch wherby he was seised at the time of the payment of the said Rent at the said Feast of the Annunciation of our Lady and traverse Absque hoc that the said Henry Gee was therof then seised in right of his wife in manner and form wherupon it was demurred in Law and adjudged by the Justices of Assise at Lancaster that the Plaintiff should be barred wherupon the Tenants have now brought their Writ of Error And by Popham and Clench the Iudgment is to be affirmed First because that the acceptance of the said Rent had been by the hands of one who was to pay it to wit the Tenant himself yet this shall not bar the right of Intail in the said Robert Holme as a release of his right should do but this acceptance shall only foreclose him of his Action to demand the Land during his life and therfore the right which the said Robert had being barred by the Fine the Son is without remedy for the Son shall never have remedy upon the Fine levied in time of his Father the five years after the Proclamations being passed But in case where the right begin first to be a right in the Son and not where there was right in the Father And further it seemed to them that the payment of him who had not any thing in the Land at the time of the payment as here shall make no conclusion to him who accept it because this payment is as none in Law And by them the Rejoynder of the Traverse Absque hoc that Henry Gee was seised at the time of the payment in Fee in right of his said Wife in manner and form as in the Replication is ailedged is good enough for he traverseth that which the Demandant hath specially alledged to destroy the Bar and contrary to that which is alledged it shall not be intended that they had other particular Estate at the time of the payment which may make the payment to be good And albeit the Traverse had been Absque hoc that the said Henry was seised in right of his said Wife Modo forma prout the Demandant hath alledged without saying in Fee as it is pleaded here yet the Iury shall be put to find it if he were seised in Fee In jure Uxoris and not of any other particular Estate as in 12 E. 4. 4. A Feoffment is pleaded by Deed the other makes Title and traverseth Absque hoc that he enfeoffed Modo forma not shewing forth the Deed yet he who pleads the Feofment by Littleton shall give no other Feoffment in evidence then that which is pleaded by the Deed. And by 18 E. 4. 3. In Trespasse the Defendant justifies the entry and sowing of Corn because that M. was seised in Fee and sowed the Land and the Defendant as his Servant entred and cut it the Plaintiff saith that it was his Free-hold at the time of the sowing Absque hoc that it was the Free-hold of the said M. and per Curiam it is not good for such matter was not alledged by the Defendant but he ought to traverse the Seisin in Fee which was alledged and good and so it is good here But it seems to Clench that the Replication is not good because he doth not say by the Writing upon which the Reservation was made which concludes Robert by his acceptance Hic in Curia prolat as by Hill 15. E. 4. 15. If a man will bar a woman of her Action for her Land after the death of her Husband by Feoffment made by the Baron and Feme during the Coverture by Deed rendring Rent by reason of acceptance of the said Rent after the death of the husband he ought to shew the Deed and say Hic in Curia prolat or otherwise the Plea is not good because that in such a case albeit it were a Gift in Tail the wife shall not be concluded by her acceptance unlesse that the Gift were by Deed. Popham True it is in case the party will demur upon it but suppose in this case the Tenants had expresly acknowledged the said Feoffments and then concluded afterwards as they have done here shall they afterwards take advantage of not shewing the Deed I think that not no more here where they admit it and plead the other matter to avoid the conclusion for if a double Plea be pleaâ—ed if the other party demur upon it he shall take the advantage of the doublenesse But if he passe it over and they proceed in pleading upon another point the doublenesse is gone And Fennor said that the right which is intended to be saved within the first branch of the Statute of 4 H. 7. is that upon which the party may pursue his Action or enter for his remedy the which the said Robert could not do in when the Fine was levied because he had accepted the Rent but the first right which was in such a case was that in the Demandant Stroud versus Willis 9. IN Debt upon an Obligation of 40 l. by William Stroud Plaintiff against John Willis Defendant the Condition wherof was If the said Willis his Heirs Executors or Assigns should pay or cause to be paid yearly to the said William Stroud the Rent or summ of 37 l. 10 s. of lawfull money at the Feasts of S. Michael and the Annuntiation by equall portions according to the Tenor true intent and meaning of certain Articles of agreement indented made between the said parties of the same date that the Obligation was that then the Obligation shall be void and the Defendant shews the Articles which were thus to wit that the said William Stroud had demised to the Defendants all such Tenements in Yeatminster of or in which the said William then had an Estate for life by Copy Anglice Copie des except according to the custom of the Mannor of Yeatminster from the Annunciation of our Lady then last past for forty years if the said William should so long live rendring yearly to the said William 37 l. 10 s. of lawfull money at the Feasts of S. Michael and our Lady by equal portions under the East-gate of the Castle of Taunton in the County of Somerset c. with divers things comprised in the said Articles To which points the Defendant pleaded that at the time of the making of the said Articles the Plaintiff had not any Estate in the Tenements in Yeatminster aforesaid for tearm of his life by Copy
took other Hay of his own to wit the Plaintiff and mixed it with the Defendants Hay after which the Defendant took and carried away both the one and the other that was intermired upon which the Action was bought and by all the Court cleerly the Defendant shall not be guilty for any part of the Hay for by the intermirture which was his own act the Defendant shall not be prejudiced as the case is in taking the Hay And now the Plaintiff cannot say which part of the Hay is his because the one cannot be known from the other and therfore the whole shall go to him who hath the property in it with which it is intermired as if a man take my Garment and Embroider it with Silk or Gold or the like I may take back my Garment But if I take the Silk from you and with this face or embroider my Garment you shall not take my Garment for your Silk which is in it but are put to she Action for taking of the Silk from you So here if the Plaintiff had taken the Defendants Hay and carried it to his house or otherwise and there intermired it with the Plaintiffs Hay there the Desendant cannot take back his Hay but is put to his Action against the Plaintiff for taking his Hay The difference appeareth and at the same day at Serjeants Inne in Fleetstreet the difference was agreed by Anderson Peâ—iam and other Iustices there and this case was put by Anderson It a Goldsmith be melting of Gold in a Pot and as he is melting it I will cast Gold of mine into the Pot which is melted together with the other Gold I have no remedy for my Gold but have lost it Bullock versus Dibler 3. IN an Ejectione firmae between Edward Bullock Plaintiff and John Dibler Deâ—endant the case appeared to be this A man was seised of a Copyhold Tenâ—â—ent pâ—rcell of the Mannor of Stratfield Mortimer the County of Berks in right of his wife in his Demesne as of Fee and surrendred this Copy bold Tenement by himself without his wife to the use of a stranger in Fee who was 〈◊〉 by the Loâ—â— accordingly the Husband dies the wife dies the Heir of the wife without any admittance enters upon the stranger and makes a Lease for a year to the Plaintiff upon whom the Defendant in right of him to whom the Surrender was made re-enters and adiudged that the Plaintiff ought to recover and that the surrender of the Husband was not as a discontinuance against the wise to put the Heir to his Plaint in nature of a Sur Cui in vita for a Discontinuance shall not be by a Deed of Feement only but by it with the Livery ensuing wherby the entire Fee-simple is given what Estate so ever the Feoffor had by reason of the Livery where by Deed of Grant nothing passed but that which the party might lawfully grant And here it shall be taken as if the Grant had been made by the Husband which passed but his Estate to wit that which he might lawfully grant without prejudice to his wife But yet there is this diversity between a surrender of an Estate for life and a surrender of an Estate in Fee to the use of a scranger to wit that by the one the Estate drowned in the Lord by the surrender and by the other it is not drowned in the Lord but is transferred to him to whom it was made upon which he is admitted to it otherwise in the last case it returns to him who surrendred and then upon the admittance he is in the Per by him who surrendred and not by the Lord or by the Surrender made by Tenant for life he to whose use it is made ought to take it of the Lord and he is there in by him and not by him who surrendred And this is the common difference betwixt Customary Estates for lives and Customary Estates of Inheritance And the Plaint of Cui in vita is given where recovery by default is against the husband and wife and not upon the surrender of the husband for suppose the husband had surrendred meerly to the Lord himself yet the wife might have entred after the death of the husband because the surrender goes but to the Estate which the husband might lawfully part with and therfore rather to be resembled to a Grant then to a Feoffment And notwithstanding that he was not admitted yet he might enter and take the profits and make a Lease according to the custom or bring an Action of Trespasse against him who disturbes him But if the Lord require his Fine or his Services and the Heir refuse to do them this may be a forfeiture of his Copyhold But untill lawfull Seisin made by the Lord because it belongeth to him the Heir may intermeddle with the Possession albeit he be not admitted by the Lord where it is an Estate of Iuheritance by the Custom And in this Term also in another case in the same Court it was adjudged that an Infant who surrenders his Copyhold Land within age may enter at his full age without being put any Suit for it And the first case was very well argued by one Brock a Puny utter Barister of the Inner-Temple this Term for the Plaintiff And it was the first Demur that he argued in Court Forth versus Holborough 4. IN an Action of Debt upon an Obligation of 200. marks brought by Robert Forth Doctor of Law and Mary his Wife as Executrix to Doctor Drewry against Richard Holborough the Case upon Demurrer appeared to be this to wit That the said Dr. Drewry was seised in his Demesne as of Fee of the Suit of the Mannor of Goldingham Hall in the County of Essex and so seised the last day of Novemb. 27 Eliz. demised it to the said Richard Holborough for 17. years from the said last day of Novemb. wherby the Defendâ—nt antred into it the next day and was therof possessed accordingly and so possessed the last day of Novemb. 28 Eliz. entred into an Obligation to the said Dr. Drewry with condition that if he his Heirs Executors Administrators and Assignes or any of them should well and truly pay or cause to be paid to Dorothy Goldingham widow or her Assigns at the Mannor-house of Goldingham Hall in the County of Essex for the Term of 17. years from the Feast of S. Michael the Arch-angel then last past or an Annuity or annuall Rent of 20. marks of lawfull English money at the Feast of the Annunciation of our Lady and S. Michael the Arch-angel by equall portions if the said Dororhy shall so long live and the said Richard Holborough or his Assigns or any other claiming by or under the said Richard or his Assigns shal or may so long occupy or enjoy the said Scite of the Mannor of Goldingham Hall that then the Obligation shall be void after which untill the 9th day of May 29 Eliz. the Defendant enjoyed the said Scite
precedent to it which not being done the Estate of Edmund never hapned to be and therfore he who cometh in under a Discontinuance made by the said William Cocksey after the death of Martin and Giles without Issue notwithstanding the Remitter of the said Alice in the case is to have the Land against those who come in by the said Edmund and upon this point only Iudgment was given accordingly in the Kings Bench. Grenningham versus the Executors of Heydon 4. IN Debt upon an Obligation of 200. marks by Richard Grenningham Plaintiff against the Executors of one Ralph Heydon Defendants the case appeared to be this upon Demurrer The said Heydon was bound to the Plaintiff in 200. marks the Condition wherof recites that wheras the said Heydon had received of the said Grenningham 76 l. 6 s 8 d. before the date of the said Obligation of 200. marks in payment and satisfaction of certain Obligations and Bills of debt remaining in the hands of the said Heydon and specified in the Condition what they were in certain and the which said Bills Obligations the said Heydon is to deliver or cause to be delivered to the said Grenningham his heirs or assigns before the Feast of S. Michael next ensuing the date of the said Obligation or otherwise the said Heydon his Executors Administrators or Assigns or some of them before the same Feast shall make or cause to be made and delivered to the said Plaintiff his Heirs and Assigns such good and sufficient Acquittances for the payment of the said summs of money formerly mentioned as the said Plaintiff his Heirs Executors or Assigns shall devise or cause to be devised by the Counsel of the said Plaintiff his Heirs or Assigns before the Feast without fraud or deceit that then the said Obligation shall be void c. And before the Feast the said Plaintiff did not devise any acquittance Whether now the Obligation be saved by the Disjunctive without delivering the Obligations and Bills before named before the Feast of S. Michael Rot. 36 37. Eton and Monney versus Laughter 5. IN Debt upon an Obligation of 400 l. by Thomas Eton and Roger See this Case Coke lib. 5. 21. by the name of Laughters case Monney Plaintiff against Thomas Laughter Defendant who was bound together with one Richard Rainford to the said Plaintiffs the Condition of which Odligation was That if the said Richard Rainford after marriage had between him and Jane Gilman Widow together with the said Jane alienate in Fee or Fee-tail all that great Messuage of the said Jane in London in the Tenure of William Fitz Williams Esquire if then the said Richard Rainford in his life time purchase to the said Iane her Heirs and Assigns Lands and Tenements of good Right and Title and of as good value as the money raised upon the alienanation of the said Messuage amounts unto or leave to the said Iane after his decease as Executrix or by Legacy or other good assurance so much money as he shall receive or have upon the said Sale that then the Obligation shall be void after which the said Richard Rainford married with the said Jane and the said Richard and Jane sold the said Messuage in Fee by Fine for 320 l. received by the said Richard Rainford after which the said Iane died no Lands being purchased to the said Iane by the said Richard and the said Richard yet living Michaelmas Term 37 38. Eliz. Sawyer versus Hardy 1. IN an Ejectione firmae by Christopher Sawyer Plaintiff against Edmund Hardy Defendant for a Messuage in S. Martins upon a Demurrer the case was this A Lease was made of the said Messuage to one Margaret Sawyer for 40. years upon Condition that if the said Margaret should so long continue a Widow she should dwell and stay in the same Messuage the said Margaret continued a Widow and dwelt in the same house all her life and died during the said Term of 40. years making the Plaintiff her Executor and by award the Plaintiff had Judgment to recover For by Popham Gawdy and Clench this now was no Condition nor Limitation for it hath no certain conclusion upon the that if to wit that then the Term shall continue or that she shall pay so much or otherwise what the conclusion shall be none can imagine As if such a Lease be made upon condition that if the Lessee does such a thing without other conclusion it is a good Lease for 40. years for none can imagine what the conclusion shall be in such a case or that then the Lease shal be void or that he shall re-enter or that the Lessee shall forfeit so much or what shall happen upon it for which incertainty it shall be taken as a void Clause But by Popham if it had been Sub conditione si tamdiu vixerit it had been good to determine the Lease but it is otherwise of the word quod si for the incertainty as before And they all agreed that if the Lease had been for 40. years Si tamdiu sols viveret inhabitaret in eodem Messuagio that the Lease had been determined by her marriage or death In the same manner as if it had been Si tam diu vixerit And so in truth had been the case if it had been well pleaded but by pleading the advantage therof was lost and the truth not disclosed But by Popham If a Lease be made for 40. years if he shall dwell in the same for his life there it is good for 40. years upon performance of the Condition the diversity appeareth to wit where it is if he shall dwell there during the Term and where it is if he shall inhabit there during his life Goodale versus Wyat. 2. IN an Ejectione firmae by Cuthbert Goodale Plaintif against John Wyat See this Case Coke lib. 5. fol. 95 96. by the name of Goodales case Defendant for a Meadow in Aylesbury in the County of Buck. called Diggelmore upon a speciall Verdict the case was this Sir Iohn Packington Knight enfeoffed therof one Ralph Woodliff to have and to hold to him and his Heirs upon condition that if the said Sir Iohn within a year after the death of the said Ralph pay to the Heirs Executors or Administrators of the said Ralph the summ of a 100. marks of lawfull money that then the said Feoffment and Seisin made therupon shall be void Ralph Woodliff made a Feoment over to others therof and died intestate and Administration was committed to Anne his Wife and Drew Woodliff his Son and Heir who gave a Warrant of Attorney to Thomas Goodale then seised of the said Meadow by mean conveyances for the receit of the said 100. marks with Covenant that none of them shall do any act or thing that shall be preâ—udiciall or hurtfull to the said Thomas Goodale for the receiving and enjoying of the said summ after which it was certified to the said Sir Iohn Packington by
was given this day The same Term in the same Court. Goodwin versus Willoughby GOodwin brought an action upon the case against Joane Willoughby wife of Thomas Willoughby and upon non Assumpsit pleaded it being found for the Plaintiff it was moved in Arrest of Iudgment 1. That the Plaintiff shews that Thomas Willoughby was indebted upon account and doth not shew that Joane Willoughby is Executrix or Administratrix and yet that she promised to pay wheras in truth she hath no cause to pay for there is no consideration and so Nudum pactum Jermy for the Plaintiff for the first because it doth not appear for what cause he accounted I answer that this is but a meer conveyance And for the second that she does not suppose that the Feme is executrix c. But here is a good consideration which is that she shall not sue or molest and that he gave day for payment this is a sufficient consideration But Stone of counsell with the Defendant said that the first is the ground of the action and therfore he ought to shew for what he accounted Crew chief Iustice two exceptions have been taken 1. For the alledging the manner of the account which I conceive is good enough and he need not shew the cause of the account And as to the second because it doth not appear that she is Executrix or Administratrix and so no consideration and so no Assumpsit But here she assumes to be Debtor and makes a promise to pay which is an acknowledgment of the Debt by inference and therfore he conceived that the Assumpsit was good Doderidge Iustice for the first it is good enough yet Cum indebitatus existit is no good Assumpsit but here he shows a speciall way of Debt and it would be long and tedious to describe his account For the second there is no cause of action because it doth not appear that she is Executrix or Administratrix or Executrix of her own wrong If I say to one do not trouble me and I will give you so much this is not actionable for there ought to be a lawfull ground and for this cause the Declaration Where forbearance without cause of action is no ground of an Assumpsit is void for it is only to avoid molestation Give me time c. this is no good Assumpsit for forbearance is no ground of action where he hath no cause to have Debt Jones Iustice agreed in the first with them because a generall action upon the case sufficeth and in truth it is but an inducement to the action but for the other part he doubted and he cited one Withypools case an Infant within age promised to pay certain money he makes an Executor and dies within age the Executor saith to him to whom the promise is made forbear and I will pay you and there an action upon the case did lye against the Executor upon this promise and yet it was a void Contract but there was colour of action forbear till such a time now the other hath lost the advantage of his Suit But he gave no opinion Crew It is a violent presumption that he is indebted But by Doderidge here is no colour to charge her but only by inference that she is Executrix If a stranger saith forbear such a Debt of J. S. and I will pay it it is a good consideration for the losse to the Plaintiff and in this case it appears not that there is any cause and Broom Secondary said that Withypools case before cited was reversed in the Exchequer Chamber Jones If an Infant makes a promise it is void and he may plead non Assumpsit which Doderidge did not deny But upon his Obligation he cannot plead Non est factum for he said that he shall be bound by his hands but not by his mouth The same Term in the same Court Drope versus Theyar IN Debt by Drope against Theyar an Inne-keeper upon Issue joyned and a Verdict for the Plaintiff Bolstred moved in Arrest of judgment for the Defendant and the matter was that one Rowly who was servant to Drope lodged in the White Heart at S. Giles and there had certain Goods of his Masters which were stoln from him in the night and Drope the Master brought an action therupon and it was moved by Bolstred that the Plaintiff was without remedy 1. Because it was in an Inne in London for the Register 105. is Quando quis depraedatus euns per patriam which as he said could not be extended to an Inne in London 2. It ought to be an Inne as Inne-keeper 3. He ought to be as a Guest lodging and this appeareth in Culeys case in 5 Jac. in Celly and Clarks case which was entred Pasch 4. Jac. Rot. 254. It was adjudged that where the Guest give his Goods to his Host to deliver to him three daies after and the goods are lost that an action is not maintainable against the Inne-keeper for them and this was in an Inne in Uxbridge And in one Sands case where the Guest came in the morning and his Goods were taken before night he shall have an action against the Inne-keeper 4. The Goods ought to be the Goods of the party who lodgeth there for the words are Ita quod hospitibus damna non eveniunt and here the Master who brought the action was not Guest But admit the Master shall have the action yet he ought to alledge a custom that the Master shall have the action for the Goods taken from his Servant Trin. 17 Jac. Rot. 1535. Bidle and the Master brought an action for Goods taken from the Servant and there it was resolved that he ought to conclude that Pro defectu c. and apply the custom to him being Master Sec Co. Book of Entries 345. And that a custom that for other mens Goods in the custody of Guests the Owner shall have an action against the Inne-keeper if they be stollen Ob. This is the Common Law and therfore ought not to be alledged Answ Where a man takes upon him to shew a custom he ought to shew it precisely he cited Heydons case Co. lib. 3. 28 H. 8. Dyer 38. And it was said for the Plaintiff that Goods are in the possession of the Master which are in the possession of his Servant and so here the Master might have had action well enough 8 E. 4. my Servant makes a Contract or â—â—ies Goods to my use I am liable and it is my act By the Court an Inne in London is an Inne and if a Guest be robbed in such an Inne he shall have remedy as if he were Enns per patriam But the cheife point was whether the master shall have the action in the case where the Servant lost the goods and by Jones Justice in 26 Eliz. in C. B. upon the Statute of Hue and Cry it was resolved that if the Servant be robbed the Master may have the Action and so by him
as a memorandum and afterwards there is an order that the Iudgement shall not be filed if the Iudgement upon this shall be stayd and speaks to it and by him the Case of 15. E. 4. 7. is nothing to this purpose for Iustices in Eyre were Iustices by commission and they had not the custody of their Records and so it differs from this case And Jones Justice which was not denyed if a Iudgement be pronounced here and be not entered the Iudges may alter it the next Term. It was said by Noy in this case that all Franchises in England are against common Right and execution of Iustice and for the present purpose he cited one Sir John Wells Case where in a Quo Warranto the Defendant had day to plead or otherwise that judgement should be entered to seise and he failed to plead at the day and the Iudgement was not filed and yet he could not be relieved But it was sayd by some of the Iustices that this was a case of great extremity But by Hendon it was affirmed in the Exchequer in one Sandersons Case and in the principall case the matter was adjourned for a fortnight and ordered that the plea should be accorded Mich. Term 2. Car. in the Kings Bench. Sharp versus Rust IN an Action upon the Case upon an Assumpsit between Sharp Plaintiff and Walter Rust Defendant upon non-Assumpsit pleaded it was found for the Plaintiff and it was moved in arrest of judgement upon these words in the Declaration the Defendant being Father to the Plaintiffs Wife for whom the Apparrel was bought said to the Plaintiff deliver the Apparrel to my Daughter and I will pay for them and saith not to whom the payment shall be made And it was argued by Woobrich of Grayes-Inne that this is no sufficient cause to stay the Iudgement for by necessary implication and reference of the words precedent the certainty of the pers on appeareth to whom the payment ought to be made And he observed that in our Law the time the estate the thing and the person not being sufficiently expressed Where a thing incertain may be made certain both in time estate and person yet by necessary coherence and relation to matter precedent they are sometimes made certain enough 1. For the time Perkins P. 496. puts the Rule if a condition hath relation to an act precedent and no time is limited when it shall be done yet if ought to be done when the act precedent is done and therefore if I. S. be bound to me in 20 l. upon condition that if I enfeoff him of black acre that then he wil pay me 10 l. c. in this case presently when I have enfeoffed the obligor of black acre he ought to pay the 10 l. notwithstanding there be no time limited when it should be payd 2. For the thing being put incertainly yet the communication precedent makes this certain 30. H. 8. Dyer 42. in the Case of the Executors of Greenliffe where it is agreed that albeit it is not shown what thing is granted yet it shall be the Land of which the communication was 3. For the Estate although it be incertain yet sometimes it is made certain by the matter precedent as in the Case Co. lib. 8. A Stewardship was granted for life and afterwards an Annuity was granted for the exercise of that Office without declaring what Estate he should have in that Annuity and resolved that he should have the Annuity for life because he had the Office for life 4. For the person the consideration sometimes ascertains the person and therefore if land he given to one by Deed habendum sibi una cum filia donatoris in frankmariage this shall enure to both because the Feme is Causa donationis and by intendment of law the Land and the feme shal be given together to the man for the advancement of the Feme as it is Mich. 2. 3. Ph. Mary Dyer 126. a 4. E. 3. 4. Plow Com. 158. enfeoff him another and bind him and his heirs to warrant doth not say to whom he shall warrant yet the Feoffee and his heirs shall have advantage of this warranty for it cannot have any other intendment 6. E. 2. Voucher 258. 22. E. 4. 16. Kelleway 108. Co. lib. 8. Whitlocks Case In a Lease for years reserving rent it is the surest way to make the reservation to no person in certain but to leave it to the general intendment of the Law 15. H. 7. A man deviseth that his Land shall be sold for the payment of his debts and doth not say by whom they shall be sold by his Executors because they are lyable for the payment of his debts but if one devise that his land shall be sold saith not for the payment of his debts the devise is void because the Law doth not intend in this case to make the sale 40 E. 3. 5. 4. E. 3. Fitzherbert Obligation 16. Nota if a man be bound in debt or Covenant by writing and puts such a clause in the writing Et ad majorem hujus rei securitatem invenit fidei jussores quorum unusquisque in tot in solido se obligavit that although none speak there but the principall in the writing if the others put to their seals they accept that which the principal spake so become principal 2. E 4. 20. and here in our Case it appeareth that the Deed was so therefore it is reason that the Declaration should be so for there cannot be a material difference between the Declaration the deed especially being upon an agreement which is to be ruled according to the intention of the parties as it is in Plow Com. 140. a. In our Law if any parties be agreed upon a thing and words are expressed or written to make the agreement although they be not apt words yet if they have substance in them tending to the effect intended the Law shall take Intention of parties to be observed them of the same substance as words usuall for the Law regards the intention of the parties and here the intent appeareth that the assumption shall be mâ—de to the Plaintiff although there want expresse words and therefore he prayed Iudgement for the Plaintiff And afterwards the same Term Iudgement was given for the Plaintiff The same Term in the same Court. Beven versus Cowling IN an Action upon the Case Littleton mooved in arrest of Iudgment for the Defendant wherein the Case was this the Defendant assumed that if the Defendant would defer the payment of a bond in which one A. was bound to him and would not implead him upon it then he promised to pay it and he doth not say that he deferred the payment untill such a day and therefore this is no valuable consideration so that the action doth not lye for notwithstanding Action upon the Case upon a â—romise that if â—e would not sue such a
that it was good enough for although it were a joynt command yet the parties commanding having severall titles it shall be taken as severall commands reddendo singula singulis and for the third it is good enough being in a Plea otherwise if it had been in a Writ But for the second Exception the bar is not good enough because incertain so that although upon other Exceptions moved by the Defendant the Replication of the Plaintiff was not good yet the Defendants Bar being ill the Plaintiff shall have Iudgement upon tâ—e Declaration And the Plaintiff had Iudgement accordingly The same Term in the same Court Risley versus Hains IN an Action upon the Case upon an assumpsit the Plaintiffe declared upon the Sale of several parcells of Tobacco to wit for one parcell so much for another parcell so much and so forward and in the Conclusion he saith quae quidem separales summae in toto se attingunt to 55. l. which being computed is lesse then the pariculars and upon non assumpsit it was found for the Plaintiffe and now Andrewes moved in arrest of Judgement for that the particulars and the summing up of them differs and this being in a Declaration which ought to contain truth it is not good and so there appears to be no cause of action 35. H. 8. Dyer 55. And Grices Case in the very point Mich. 17. Jac. in this Court but by Jones and Whitlock Iustices onely present the Declaration is good enough for there is a particular promise for every parcell and the summing up of particulars is only surplusage and officiousness of the Clark therefore the Iudgement was affirmed And nota that Jones said obiter in this Case that upon a contract the Party to whom payment is to be made need not make request and afterwards it was agreed by the whole Court that it should be amended otherwise it had been more The same Term in the same Court A Great multitude of Welsh-men were Indited for the death of a man by an Inquisition taken before the Coroner in the County of Mountgomery in Wales and Littleton of Councel with the Welsh-men took some Exceptions to the Inquisition as 1. That the Coroner cannot take any Inquest unlesse it be super visum corporis and to this purpose he cited Britton 6. Ric. 2. Coron 107. 21. E. 4. 70. 2. Ric. 3. 2. This also is the reason that if a man drown himselfe and cannot be found the Coroner cannot enquire of the death of this man but for the King to have a forfeiture of his Goods an Inquisition ought to be taken before the Iustices of Peace as it was resolved in this Court Trin. 13. Jac. upon which the first exception was that the Inquisition was taken at D. in the time of King James super visum corporis in D. in the time of this King and for this he cited two presidents out of Cookes Booke of Eâ—tryes Another Exception was because the Inquisition was per Sacramentum probor legal hominum Com. predict whereas by the Stat. of 4. E. 1. this inquest ought to be by men of the four Towns next adjoyning and this ought to appear in the Inditement also Hill 10. Jac. Rot. 3. Co. lib. Intr. 354. And day was given to the Attorney General to maintain this Inquisition But afterwards Pasch 3. Car. the Inditement was quashed especially for the first exception The same Term in the same Court King versus Merrick In an Action upon the Case for these words I charge you King with Felony and you Constable inuendo Thomas Legat to apprehend him And a verdict for the Plaintiff It was moved in arrest of Iudgement by Bacon that the words are not actionable The first words are not because they are not an expresse affirmation and for this he cited Mich. 11. Jac. in this Court Powel and Bauds case where an action was brought for these words I have arrested Powel of Felony for stealing sheep of mine and adjudged not actionable Also the Plaintiff did not shew in his Declaration what kinde of felony this was and it may be such a felony for which an Action will not lie for there are divers kinds of felony and a Mayhem is one kind as appears in 40. Ass Pl. 4. 6. H. 7. 1 and in this case it shall be taken in mitiori sensu and it shall not be intended such a felony for which he may be hanged If one charge another with felony because he hath committed a Mayhem it is cleer that an action will not lye And the other words I charge you Constable to apprehend him are not actionable and the words are onely spoken to the Plaintiff Also the words are layd to be spoken in London and it appears that the Constable was of a Town in Norfolk who cannot apprehend any one in London Earle for the Plaintiff It hath been argued that the words are not actionable because felony is a generall word and contains in it selfe a mayhem also But I conceive that in this case felony shall be taken according to the general and common acceptation which is such a Felony for which a man may loose his life and for this he cited Co. lib. 4. 15. b. Yeomans charged Hext for my ground in Allerton Hext seeks my life and if I could find Iohn Silver I do not doubt but within two dayes to arrest him upon suspition of Felony and it was adjudged that for the last words the Action lies because he shall be imprisoned for suspition of felony and felony is there taken according to the common acceptation of the word It hath been objected that there is no expresse affirmation of the Felony but I conceive that there is 39. Eliz. Action was brought for these words I will call him in question for poysoning my Aunt and adjudged that it lyes and Mich. 37. and 38. Eliz. Woodrofe and Vaughans case for these words I did not know Mr. Woodrofe was your Brother I will prove him perjured or else I will bear his charges and adjudged actionable And Hill 44. Eliz. Rot. 351. This man inuendo Iohn Latham hath cut my Wives purse and his Father knowing of it received it of him and the Money and Rings theein and therefore I charge him of flat Felony and resolved that for these words did cut my Wife's purse no action lies for the cutting of ones purse only is not felony unlesse it be taken from the person and to receive one is not Felony but resolved that the last words were actionoble and then it was agreed that if one say that I. S. did see such a one that had committed felony and did suffer him to slip away I charge him of Felony these words are not actionable and Mich. 20. Jac. in this Court that these words beare witnesse I arrest him of felony are actionable and therefore he prayeâ— judgement for the Plaintiff Doderidge Iustice the words are not actionable And Hexts case comes not to this