contract was determined and not in esse at the time of promise But he said it was otherwise upon a consideration of Marriage for that is alwayes a present consideration and alwayes a consideration because the party is alwayes married Windham to the same intent and compared it to the Case of 5. H. 7. If one sell an horse to another and after at another day will warâ—ant him to be good and sound of limb and member it is void warranty for it ought to have been at the same time that the horse was â—old Periâ—m Justice contrary for he said This case is not like to any of the cases which have been put because there is a great difference betwixt Contracts and this Action For in Contracts the consideration and promise and sale ought to concur because a Contract is derived of con trahere which is a drawing together so as in Contracts every thing requisite ought to concur as the consideration of the one side and the promise or sale of the other side But to maintain an Assumpsit it is not requisite for it is sufficient if there be any moving cause or consideration precedent for which cause or consideration the promise was made and that is the common practice at this day For in Assumpsit the Declaration is That the Defendant for and in consideration of ten pounds to him paid postâ—a silicet a day or two after super se assumpsit c. and that is good and yet there the consideration is executed And he said that Hunt and Baker's case which see 10. Eliz. Dyer 272. would prove it The case was this The Apprentice of Hunt was arrested when Hunt was in the Country and Baker one of Hunts neighbours to keep the Apprentice out of the Counter became his Baile and paid the debt Afterwards Hunt returning out of the Country thanked Baker for his neighbourly part and promised him to repay him the said summ Upon which Baker brought an Action upon the Case upon the promise And it was adjudged that the Action would not lie not because the consideration was precedent to the promise but because it was executed and determined long before But there the Justices held That if Hunt had requested Baker to have been surety or to pay the debt and upon that request Baker paid the debt and afterwards Hunt promiseth for that consideration the same is good for the consideration precedes and was at the instance and request of the Defendant So here Sydenham became bail at the request of the Defendant and therefore it is reason that if he be at losse by his request that he ought to satitfie him And he conceived the Law to be cleer that it was a good consideration and that the request is a great help in the Case Rodes Justice agreed with Periam for the same reasons and denyed the Case put by Anderson And he said That if one serve me for a year and hath nothing for his service and afterwards at the end of the year I promise him ten pounds for his good and faithfull service ended he may maintain an Assumpsit for it is a good consideration But if the servant hath wages given him and the Master ex abundantia as he said promiseth him ten pounds after his service ended the same promise shall not maintain an Assumpsit for there is not any new cause or consideration preceding the Assumpsit And Periam agreed to that difference and it was not denyed by the other Justices but they said that the principall Case was a good case to be advised upon and at length after good advice and deliberation had of the cause they gave Judgment for the Plaintiff that the Action would lie And note That they very much relyed upon Hunt and Bakers Case before cited See Hunt and Baker's Case in 10. Eliz. Dyer 272. Pasc 27. Eliz. in the Common Pleas. 41 CARTER and CROST's Case CArter brought an Action of Detinue of a chaine against Crosts and declared That Thomas Carter his brother was thereof possessed and died Intestate for which cause the Bishop of Cork granted him Letters of Administration and that the Chain came to the Defendants hands by Trover c. And declared also That he was as Administrator thereof possessed in London To which the Defendant Crosts pleaded the Generall Issue and the Jury gave a speciall Verdict and found that the Administration was committed to Carter in London by the Bishop of Cork in Ireland here and did not find that Carter was possessed of the chain in London And upon this special Verdict first it was moved That the Bishop of Cork in Ireland being in England might commit administration of things in Ireland And it was held cleerly by the Court That he might of things within his Diocesse in Ireland because it is an Authority Power or Matter that followes his Person and wheresoever his Person is there is his Authority As the Bishop of London may commit Administration being at York but it ought to be alwaies of things within his Diocesse and therefore they held That the Declaration was good in that point That the Bishop of Cork did commit Administration in London although there be no such Bishop of England The second point was If an Aministrator made by a Bishop of Ireland might bring an Action here as Administrator and it was holden That he could not because of the Letters of the Administration granted in Ireland there could be no triall here in England although that Rodes Justice said That Acts done in Spirituall Courts in Forrain places as at Rome or elsewhere the Law saith That a Jury may take notice of them because such Courts and the Spirituall Courts here make but one Court and he proved it by the Case of the Miscreancy in 5. R. 2. Tryall 54. where a Quare Impedit was brought by the King against the Clerk of a Church within the Bishopprick of Durham and counted that the Bishop who is dead presented his Clerk and that the Clerk died and the Chapter collated a Cardinall who for Miscreancy and Schisme was deprived the Temporalties being in the Kings hands Burgh He hath counted of an Avoidance for Miscreancy at the Court of Rome which thing is not tryable here Belknap Chief Justice I say for certain That this Court shall have Conusans of the Plea and that I will prove by Reason for all Spirituall Courts are but one Court and if a man in the Arches be deprived for a Crime and appeal to Rome and is also there deprived that Deprivavation is triable in the Kings Court in the Arches And if a man be adhering unto the Kings enemies in France his Lands are forfeitable and his adherence shall be tryed where his Land is as oftentimes it hath been for adherence to the Kings enemies in Scotland And so by my faith if one be Miscreant his Land is forfeitable and the Lord thereof shall have the Escheat and that is good reason For if a man
King And as to the second Point they held the Law to be cleer That after that he hath retained as many as by the Law he may retaine and they are sub Signo and Sigillo testified to bee his Chaplains and by reason thereof have qualification to have two Benefices and have two Benefices by vertue thereof although that afterwards they are removed for displeasure or otherwise out of service yet during their lives their Master cannot take other Chaplains which may by this Statute be qualified for so every Baron might have infinite of Chaplains which might be qualified which was not the meaning of the Statute and of that opinion is the Lord Dyer in his Reports And as to the third Point they held That although he were removed from the Domesticall Service of the Family yet hee did remaine Chaplain at large and so a Chaplain within the Statute And further the Opinion of the Court was in this Case That if the party qualified to die the Queen or other Master mentioned in the Statute might qualifie another againe Quod nota The Case was entred Pasch 28. Eliz. Rot. 1130. Scot. Mich. 28 29. Eliz. in the King 's Bench. 48. ONE made a Deed in this forme Noverinit c. that I have demised and to Farme letten all my Lands in D. to I. S. and his Wife and to the Heirs of their two Bodies for thirteen years And it was moved That it was an Estate in taile and 5. E. 3. and 4. H. 4. were vouched But Clenche Justice who was only present in Court was of Opinion That it is but a Lease for years although it was put that Livery was made secundùm formam chartae and his said That if one make a Lease for forty years to another and his Heirs and makes Livery that it is but a Lease for years and he said It is no Livery but rather a giving of Possession But he would have it moved again when the other Justices came Mich. 28 29. Eliz. in the King 's Bench. 49 AN Action upon the Case was brought against an Inn-keeper upon the Custome of England for the safe keeping of the things and Goods of their Guests and he brought his Action in another County then where the Inn was and it was said by Clench Justice That if it be an Action upon the Case upon a Contract or for words and the like transitory things that it may be brought in any County but in this Case he said It ought to be brought where the Inn is Mich. 28 29. Eliz. in the King 's Bench. 50. ONE charged two men as Receivers The Question was Whether one of them might plead Ne unque son Receiver and it was moved That he could not but ought to say Nâ— unque son Receiver absque hoc that he and his Companion were Receivers Clenchè and Suit Justices held That it was well without Traverse and Vide 10. E. 4. 8. Where an Account was brought against one supposing the receipt of Two hundred Marks by the hands of I. P. and R. C. The Defendant as to One hundred Marks pleaded That he received it by the hands of I. P. tantùm without that that he received it by the hands of I. P. and R. C. And as to the other One hundred Marks he received them from the hands of R. C. only without that that he received I. P. and R. C. And there it was doubted Whether it be good or not But in the end of the Case by Fitz. Accompt 14. If an Account be brought against two and one saith He was sole his Receiver and hath accounted before such an Auditor if the Plaintiffe answer unto his Bar he shall abate his Writ because the Receipt is supposed to be a joint Receipt And it is not like unto a Praecipe quod reddat against two Mich. 28 29. Eliz. in the King 's Bench. 51. AN Action upon the Case was brought against one for that he said to another I will give thee Ten Pound to kill such a one and the Question was Whether the Action would lie It was said by Sir Thomas Coâ—kaine that such a Lady had given poyson to such a one to kill her Child within her that the words were not Actionable Also one said That another had put Gun-Powder in the Window of a house to fire such a house and the house was not fired adjudged that the words were not Actionable The Case was betwixt Ramsey of Buckinghamshire and another who said That he lay in wait to have killed him it was found for the Plaintiffe and he had Forty Pound Damages given him But of the Principall Case the Court would advise Mich. 28 29. Eliz. in the Kings Bench. 52 IT was holden by the Court That the Habeas corpus shall be alwayes directed to him who hath the custody of the Body Therefore whereas in the case of one Wickham it was directed to the Maior Bailiffs and Burgesses Exception was taken unto it because the pleas were holden before the Maior Bailiff and Steward but the Exception was dissallowed But otherwise it is in a Writ of Error for that shall be directed to those before whom the Judgment was given In London the Habeas corpus shall be directed Majori Vicecomit London because they have the custodie and not to the whole Corporation But I conceive that the course is that the Writ is directed Majori Aldermannis Vicecomitibus c. Mich. 28 29 Eliz. In the Common Pleas. 53 MARSH and PALFORD's Case OWen moved this Case That one had an upper chamber in Fee and another had the neather or lower part of the same house in Fee and he who had the upper chamber pulled it down and he which had the lower room would not suffer him to build it up again But the opinion of the Justices was that he might build it up again if he did it within convenient time And there it was said that it had been a Question Whether a man might have a Free-hold in an upper chamber Mich. 28 29 Eliz. in the Kings Bench. 54. A Question was moved to the Court Whether Tithe should be paid of Heath Turf and Broom And the opinion of Suit Justice was That if they have paid tithe Wool Milk Calves c. for their cattell which have gone upon the Land that they should not pay tithe of them But some doubted of it and conceived That they ought to say that they have used to pay those Tithes for all other Tithes otherwise they should pay tithe for Heath Turf Broom c. Mich. 28 29. Eliz. in the Kings Bench. 55. TWo Parsons were of two severall Parishes and the one claimed certain Tithes within the Parish of the other and said That he and all his Predecessors Parsons of such a Church scil of D. had used to have the Tithes of such Lands within the Parish of S. and that was pleaded in the Spiritual Court and the Court was moved for to grant
should not kill the Coneys He cannot take them damage feasants for he cannot impound them Nor doth a Replevin lye of them 19. E. 3. and F. N. B. If the Lord surcharge the Common the Commoner may have an Action against him but in this Case he can have no Action Gaudy Chief Justice He cannot kill the Coneys because he may have other remedie Suit Justice A Commoner cannot take or distrain the Cattel of a Freeholder damage feasants And therefore he cannot kill or destroy the Coneys and he hath a remedy for he may have an Action upon the Case or an Assize against him for putting in of the Coneys if he do not leave sufficient Common for the Commoner Judgment was afterwards given for the Plaintiff Hill 29. Eliz. in the King 's Bench. 145 YARRAM and BRADSHAWE's Case YArram and Wilkenson Sheriffs of the City of Norwich brought an Action upon the Case against Bradshawe because that they being Sheriffs of N. A Capias ad satisfaciendum and shewed at whose Suit and in what action was awarded unto them And they 20. Feb. Anno 25. El. directed their Warrant in writing to three Sergeants of the same City to arrest him by force of which the Sergeants the 26. of Feb. in the same year did Arrest him in Execution and that he was rescued and escaped And that they had spent divers summs of Money in enquiring after him ad grave damnum eorum c. The Defendant pleaded Not Guilty And upon Tryal of the issue a special Verdict was found that about 20. Feb. Anno 25. such a Warrant was made by them unto the Sergeants but not 20. Feb. and that the Sergeans by force thereof about 26. Feb. did Arrest him but not the 26. of Feb. and upon the whole matter there was a demurrer in Law Tanfield for the Defendant and he said It was no Lawfull Arrest For by 8. E. 4. A Bailiff without a Warrant in writing may take goods in Execution and it is good if it be by commandment by word onely of the Sheriff but he cannot Arrest the body of a man without a Warrant in writing sigillo signatum which is not shewed here in the plaintiffs Declaration If one in debt declare per factum suum obligatorium and doth not say sigillo suo sigillatum it is not good Quaere of that for the Book of Entries is not so Secondly he said it must be a present loss or damage to the plaintiffs or else they cannot maintain the action They are chargeable but not charged for if the Sheriffs dye before he begin any Suit against them their Executors shall not be charged But if the plaintiffs have been Arrested then they are endamaged Thirdly as to the Verdict the foot and foundation of the action is the wrong and the wrong here is not found certain for it is supposed to be 26. Feb. And also that the Warrant was Circa 26. Feb. but not 26. Feb. and if it were any day before then the action is maintainable but not if it were any day after A man brings an action of Trespass supposing by his writ the same to be done 1. May If in truth the Trespass was before then it is good but if it were 2. May or at any time after 1. May then it is not good It was a great Case betwixt Vernon and Gray in an Ejectione firme The Ejectment was supposed 1. May and the Jury did finde the Ejectment to be Circa first May and adjudged not good If an Ejectione firme be brought upon a lease made 1. May and the Jury finde the Ejectment to be circa 1. May it is not good Also here they could not take him in Execution again although they had found him For if a man be once out of Execution by 14 H. 7. He shall not be taken again in Execution for the same cause The Court held it not material whether he shewed or not that the Warrant was sub sigillo sigillat ' and therefore thy did not speak to it Godfrey for the plaintiff What if they be not charged but chargeable yet they shall have their action upon the Case for the wrong done viz. The Rescous and the Escape because the Defendant shall not take advantage of his own wrong and so is the opinion of Frowick 13. H. 7. 1. Reporter Quaere For Frowick saith He shall have an action upon the Case or Trespas for breaking of prison against him and shall recover in damage as much as he lost by the escape and so he shall be helped and not by taking of him again And Fitzherbert in his Natura Brevium in the Writ of Ex parte talis holds that upon an Escape the Gaoler shall have a special Writ upon the Case against the Prisoner to answer for the Escape and the damages which the Gaoler shall sustain thereby and it was holden in a great Case viz. One Holts Case That it is not necessary to shew that there was a recovery against them Tanfeild but there it was after a Suit begun although before recovery Godfrey they have also put it in their Declaration that they have expended great sums of Money in looking for him therefore they have shewed that they were damnified Tanfeild it was foolish for them to spend their Money for they could not have taken him again although they had found him Godfrey A man shall have an action for fear of vexation or trouble or charge as one shall have a Warrantia Charta before he be impleaded A man shall have a Curia Claudenda before any breach of the enclosure As to the Verdict It is certain enough for it saith Quod tunc ibidem seipsum recussit and that cannot but be referred to a time certain before viz. 26. Feb. Tanfeild It shall be referred to circa and therefore ad tunc ibidem do remain uncertain Suit Justice Presently by the escape there was a wrong done therefore for that he may have an action Clenche Justice said That he had experience in a Case of Trespas And it was the opinion of almost all the Judges of England That if the Trespass should be done after the day wherein it is supposed to be done by the Writ Yet the Writ shall not abate and therefore he said That the difference of the Trespas done before and after the day supposed by the Writ is to no purpose Further he said that it standeth them upon to have their action before they be sued by the party at whose Suit he was in Execution for perhaps he who was in Execution might dye and other changes might happen so as they might lose all Tanfeild What damages shall the Sheriffs have here if they shall recover before any action be brought against them when as it is uncerrain whether ever they shall be sued or not and so uncertain how much they shall be damnified But notwithstanding all which was said by Tanfeild Judgment was given for the Plaintiffs Hill 29.
the case which implyed their opinions to be for the Universitie And 21. H. 7. was vouched That the Patronage was only matter of favour and was not a thing valuable And in this case Cook chief Justice said That Apertus haereticus melius est quam fictus Catholicus Mich. 11. Jacobi in the Common Pleas. 310 BOND and GREEN's Case AN Action of Debt was brought against an Administrator the Defendant shewed how that there were divers Judgments had against him in 〈◊〉 Aâ—d â—â—so that there was another Debt due by the Testator which was assigned over unto the Kings Majesty and so pleaded That he had fully Administred Barker Serjeant took Exception to the pleading because it was not therein shewed that the King did assent to the Assignment and also because it was not shewed that the Assignment was enrolled The Court said nothing to the Exceptions But whereas he Defendant as Administrator did alledge a Retayner in his own hands for a debt due to himselfe The opinion of the whole Court was that the same was good and that an Administrator might retayne to satisfie a debt due to himselfe But it was agreed by the Court That an Excecutor of his own wrong should not Retayne to satisfie his own debt See to this purpose C. 5. part Coulters Case Mich. 11. Jacobi in the Common Pleas. 311 STROWBRIDG and ARCHERS Case IN An Action of debt upon a Bond the Defendant was Outlawed And the Writ of Exigent was viz. Ita quod habeas corpus ejus hîc c. whereas it ought to be coram Justiciariis nostris apud Westminster And for that defect the utlagary was reversed and it was said that it was as much as if no Exigent had been awarded at all And upon the Reversall of the utlagary a Supersedeas was awarded and the party restored to his goods which were taken in Execution upon the Capias utlagatum It was also resolved in this Case That if the Sheriffe upon a Writ of Execution served doth deliver the mony or goods which are taken in Execution to the Plaintiffs Atturney it is as well as if he had delivered the same to the Plaintiff himself for the Receipt by his Atturney is in Law his own Receipt But if the Sheriff taketh goods in Execution if he keep them and do not deliver them to the paâ—â— at whose suit they are taken in Execution the party may have a new Execution as it was in the principal Case because the other was not an Execution with Satisfaction Mich. 11. Jacobi in the Common Pleas. 312 CHAVVNER and BOVVES Case BOwes sold three Licences to sell Wine unto Chawner who Covenanted to give him ten pounds for them and Bowes Covenanted that the other should enjoy the Licences It was moved in this Case whether the one might have an Action of Covenant against the other in such Case And the opinion of Warburton and Nichols Justices was That if a Man Covenant to pay ten pound at a day certain That an action of Debt lyeth for the money and not an action of Covenant Barker Serjeant said he might have the one or the other But in the principall Case the said Justices delivered no opinion 313 Note That this Day Cooke Chief Justice of the Common Pleas was removed to the Kings Bench and made Lord Chief Justice of England And Sir Henry Hobart who was the Kings Aturney generall was the day following made Lord Chief Justice of the Court of Common Pleas. Sir Francis Bakon Knight who before was the Kings Solicitor was made Atturney Generall And Mr Henry Yelverton of Grays-Inn was made the Kings Solicitor and this was in October Term. Mich. 11 Jacobi 1613. Mich. 11. Jacobi In the Common Pleas. 314 THis Case was put by Mountague the Kings Serjeant unto the Lord Chief Justice Hobart when he took his place of Lord Chief Justice in the Common Pleas viz. Tenant in tail the Remainder in taile the Remainder in Fee Tenant in tail is attainted of Treason Offence is found The King by his Letters Patents granteth the lands to A who bargaineth and selleth the land by Deed unto B. B. suffers a common Recovery in which the Tenant in tail is vouched and afterwards thâ— Deed is enrolled And the question was Whether it was a good Bar of the Remainder And the Lord Chief Justice Hobart was of opinion That it was no barre of the Remainder because before enrollment nothing passed but only by way of conclusion And the Bargainee was no Lawfull Tenant to the Precipe Mich. 11. Jacobi in the Common Pleas. 315 WHEELER's Case IT was moved for a Prohibition upon the Statute of 5. E. 6. for working upon Holy days and the Case was That a man was presented in the spirituall Court for working viz. carriage of Hay upon the feast day of Saint John the Baptist when the Minister preached and read divine service and it was holden by the whole Court of Common Pleas That the same was out of the Statute by the words of the Act it self because it was for necessity And the Book of 19 H. 6. was vouched That the Church hath authority to appoint Holy days and therefore if such days be broken in not keeping of them Holy that the Church may punish the breakers therof But yet the Court said That this day viz. the Feast day of Sr John the Baptist was a Holy day by Act of Parliament and therefore it doth belong unto the Judges of the Law whether the same be broken by doing of such work upon that day or not And a Prohibition was awarded Mich. 11 Jacobi in the Common Pleas. 316 REARSBY and CUFFER's Case IT was moved for a Prohibition to the Court of Requests because that a man sued there by English Bill for money which he had layd out for an Enfant within age for his Meat drink necessary apparel and set forth by his Bill that the Enfant being within age did promise him to pay the same And a Prohibition was awarded because as it was said he might have an action of Debt at the common Law upon the contract for the same because they were things for his necessary livelihood and maintenance And it was agreed by the Court That if an Infant be bounden in an Obligation for things necessary within age the same is not good but voidable Quaere for a difference is commonly taken When the Assumpsit is made within age and when he comes to full age For if he make a promise when he cometh of full age or enters into an Obligation for necessaries which he had when he was within age the Law is now taken to be that the same shall binde him But see 44. Eliz. Randals Case adjudged That an Obligation with a penaltie for money borrowed within age is absolutely void Mich. 11. Jacobi in the Common Pleas. 317 SMITH's Case SMith one of the Officers of the Court of Admiralty was committed by the Court of Common Pleas to the prison of
and where not For in the principal Case notwithstanding that the Jury find the Assumpsit yet the same doth not reach to the Request and without that the Assumpsit is void Dodderidge Justice cited 5 E. 4. That if the Declaration be vitious in a point material and issue is taken upon another point there the finding of it by the Jury doth not make the Declaration to be good And so in the principal Case Judgment was given for the Defendant In this Case it was agreed That if a man bring an Action of Trover and Conversion and not alleadge a place where the Conversion was Although the issue for the Trover be found for the Plaintiff yet he shall not have Judgment Hill 16 Iacobi in the Kings Bench. 388. GODFREY and DIXON'S Case COrnelius Godfrey brought an Action of Debt upon a Lease against Dixon and declared That Cornelius Godfrey his Father being an Alien had issue Daniel Godfrey born in Flanders the Father is made a Denizen and hath issue the Plaintiffe his second son born in England The Father dieth Daniel is Naturalized by Act of Parliament and made the Lease to Dixon for years rendring Rent and dyed without issue And the Plaintiffe his brother brought an Action of Debt for the Arrearages as heire and upon that it was demurred in Law And George Crook in his Argument said That Inheritance is by the Common-Law or by Act of Parliament And that three persons cannot have heirs in travnsersali linea but in recta linea viz. 1. A Bastard 2. A person Attainted 3. An Alien see for that 39 E. 39. Plow Dom. 445. 17. E. 4. 1. 22 H. 6. 38. 3 E. 1. sitz t' Cousinage 5. Dr. Student And he said That Denization by the Kings Charter doth not make the heir inheritable 36 H. 8. Br. to Denizen and C. 7. part 77. And he said That he who inheriteth ought to be 1. Next of blood 2. Of the whole blood and 3. He ought to derive his Pedigree and discent from the stock and root Bracton lib. 2. fol. 51. And he said That if a man doth covenant to stand seised to the use of his brother being an Alien that the same is not good and the use will not rise But that was denyed by the Court. And he said That an Alien should not have an Appeal of the death of his brother And he took a difference betwixt an Alien and a person Attainted and said that the one was of corrupt blood the other of no blood and cited 9 E. 4. 7. 36 Eliz. Hobby's Case Dodderidge upon the argument of this Case said That if a man claim as Cousin and Heir he must shew how he is Cousin and Heir but not when he claims as Brother or Son and Heir The Case was adjourned Hill 16 Iacobi in the Kings Bench 389 GRAY'S Case AN Action of Debt was brought upon a Bond with Condition to stand to an Arbitrement and also that he should not begin proceed in or prosecute any suit against the Obliger before such a Feast The Obliger did continue a Suit formerly brought George Crook said That the Bond was forfeited because it is the act of the Obliger to continue or discontinue a suit and profit accrues to him therefore it shall be adjudged his act But it is otherwise of an Essoin because that that may be cast by a stranger And he cited the books of 36 H. 6. 2. 5 H. 7. 22 14 E. 41. 18 H. 6. 9. And he held That it was a good Award to continue or discontinue a suit because it is in the power of the party to do it or not Hill 16 Jacobi in the Kings Bench. 390 SLYE'S Case IN a Scire facias to have Execution the Sheriffe retorned That by vertue of a Writ of Fieri facias he took the goods in Execution ad valentiam of 11l. which remained in his custody for want of buyers and that they were rescued out of his possession Mountagu Chief Justice and Dodderidge Justice The Plaintiffe shall have an Execution against the Sheriff relyed upon the book of 9 E. 4. 50. 16 E. 4. Faulconbridge Case 7 Eliz. Dyer 241. 5 E. 3. t' Execution C. 5. par Pettifers Case And Dodderidge said That by this Retorn he had concluded himself and was liable to the value of 11l. And he took this difference where the Sheriffe by vertue of the Writ Venditioni exponas sels the thing under the value there he shall be discharged but otherwise where he sels the goods ex officio Crook and Haughton Justices The Plaintiffe shall not have a Scire facias against the Sheriffe but where he hath the money in his purse And they said That the Plaintiffe must have a Distringas directed to the new Sheriffe or a Venditioni exponas Note the Court was divided in opinion But the Law seems to be with Crook and Haughton and the books before cited prove their difference and warrant it Hill 16 Iacobi in the Kings Bench. 391 Sir JOHN BRET and CUMBERLAND'S Case IN an Action of Covenant brought by Sir John Bret against Cumberland Executor of I. C. the Case was this Q. Eliz. by her Letters Patents did demise a Mill unto the Testator for 30 years reserving Rent and these words were in the Letters-Patents viz. That the Lessee his Executors and Assignes should repair the Mill during the Term. The Lessee assigned over all his interest unto Fish who attorned Tenant and paid the Rent to the Queen and afterwards the Queen granted the Reversion to Sir John Bret and Margaret his wife The Assignee is accepted Tenant the Mill came to decay for want of Reparations and Sir John Bret brought an Action of Covenant against the Executor of the first Lessee And it was adjudged for the Plaintiffe And Dodderidge Justice gave the reasons of the Judgment 1. Because that by the Statute of 32 H. 8. all the benefit which the Queen had was transferred to the Grantee of the Reversion 2. It might be parcel of the Consideration to have the Covenant against the Lessee For a Mill is a thing which without continual Reparations will be ruinous and perish and decay And he said That the Assignee had his election to bring his Action against the Lessee or against the Assignee because it was a Covenant which did run with the Land Mountagu Chief Justice said That the reason of the three Cases put in Walkers Case is in respect of the Interest And took a difference where there is privity of Contract and where not It was adjourned Hill 16 Jacobi in the Kings Bench. 392. WEBB and TUCK'S Case IN an Action of False Imprisonment it was agreed That a Fine may be assessed for Vert and Venison And it was said in this Case by the Justices That a Regarder is an Officer of whom the Law takes knowledge and so are Justices in Eyre 2. It was agreed That such things of which the Law takes notice
being made at Dunkirk but to be performed in England The second If Tookley being the Attorney be such a party prosecutor as is within the Statutes The ancient Law of the Admirals Jurisdiction appears in our Books 8 E. 2. Corone 399. Staunton Justice It shall not be accounted the Sea where a man may see the land over the water And the Coroners were to do their office in such case and the County was to take notice thereof 40 Ass 25. Stamford 11. This Commission was at the Common-Law before the Statutes of Pyracie 46 E. 3. tras 38. Statham It is pleaded that the Defendant took the goods as Pyracie c. I infer thereupon that it was a good Justification 7 R. 2. tras 54. Statâ—am Trespass was brought for a Ship and Merchandises taken upon the Sea and holden good which proves that the Common-Law had jurisdiction upon the Sea and not the Admiral 6 R. 2. Protection 46. Protection quia profecturus super altum mare Belknap The Sea is within the Kings jurisdiction and the Sea is as well in the Kings protection as is the Land It may be objected That the Contract was made at Dunkirk and so out of the body of the County and so our Law cannot take notice of it and if the Admiral shall not have jurisdiction in such case it should remain undetermined To that I answer If all the matter were to be done at Dunkirk then all were a Marine case and the Admiral should have jurisdiction but if any part were to be done in England then it is otherwise M. 30 31 Eliz. C. 6 part 47. in Dowdalos case In an Action upon the Case upon Assumpsit the Plaintiff did declare That the Defendant at London did assume that such a ship should sail from Melcomb Regis in Suffolk to Abvile in France The issue was tryed in London because the Contract was made in England Pasch 28 Eliz. Gynne and Constantines Case there because it was part upon the Sea and part upon the Land the tryal was at the Common-Law and not in the Admiral Court 48 E. 3. 2. One did retein three Esquires to serve in France there because the Reteiner was here the tryal was here If a Mariner contract with me for wages to sail in such a ship he shall demand his wages at the Common-Law and not in the Admiral Court vi 39 H. 6. 39. There a Protection super vetilationem Calisiae c. cannot be moraturus because that the Sea is ever ebbing and flowing and doth not stand still So that if any part of the Contract be to be done upon the Land then Common-Law shall have the jurisdiction Wreck of the Sea shall be tryed at the Common-Law because it is cast upon the Land Dyer 326. t' E. 1. Avowry 192. A Replevin was brought of a ship taken upon the coast of Scarborough and carried into Norfolk and it was alleadged to be within the Statute of Malebridge for taking a Distress in one County and carrying of it into another County Bereford The King wills that the Peace be kept as well upon the Sea as upon the Land And our Case differs from Lacy's case C. 2. part Foâ— in that case of Felony it is meer local but Contracts are not so local The second point Whether this be a prosecution within the Statutes because it was done by vertue of a Letter of Attorney from Mullibeck 32 E. 3. barr 264. Annuity 51. Qui per alium facit per seipsum facere videtur The Statute of Merton cap. 10. gave power to make Attorneys in any Court Com. 236. but the Attorney must look at his peril that that which he doth be a lawful act Here Mullibeck himself could not have justified this prosecution nor shall his Attorney â— H. 7. 24. 28 H. 8. 2. Quod per me non possum per alium non possum If an Enfant make a Letter of Attorney to make Livery and Seisin and the Attorney maketh Livery accordingly he is a Disseisor C. 10. part 76. If the Court have not jurisdiction of the Cause the Minister must look to it at his peril otherwise he is punishable Tras 253. One may do that himself which he cannot do by Attorney The Lord may beat his villein but a stranger cannot do it for the Lord the Lord may distrein for Rent when it is not behind and the Tenant shall not have trespass but if the Bailiff distrein when no Rent is arrear trespass lieth against him 2 H. 4. 4. 9 H. 7. 14. In Trespass all are Principals Then the Attorney here and Mullibeck are both Trespassors against the Statutes And the doing of the Attorney at the command of the Master shall not avail him vi Dyer 159. doth conduce to the reason that the Attorney shall be punished It seems this suing in the Court of Admiralty is a Contempt for it is malum prohibitum and so either Mullibeck or the Attorney are punishable And in this case the Plaintiff hath his Election to sue Mullibeck or the Attorney and therefore having sued the Attorney the Action brought against him will well lie Calthrop for the Defendant It was objected That the Court of Admiralty did begin but in the time of King Edw. 3. But Dyer 152. proves the contrary For there in an Assise brought of the Office of Admiralty the Plaintiff doth declare the same to be an Office time out of mind c. which proves it to be a more ancient Office And in the Statute of 2 H. 5. cap. 6. There the words are to enquire of all offences c. as the Admirals after the old custom which proves that it is an ancient Office It 's true Avowry 192. makes against me but the Notes of that Case in writing proves that the book is misprinted I confess if part of the thing be to be done here upon the Land that it is triable at the Common-Law The Defendant in this our Case is not liable to the penalty because at the time of the making of these Statutes it was not known that any Charter-partie was made beyond the Seas 2 E. 3. Oblig 15. Debt was brought upon an Obligation made at Barwick where becaus this Court had not jurisdiction It was adjudged That the Plaintiff nihil capiat per breve Testament 16. A Testament bore date at Cane in Normandy which was proved in England Pole Upon an Obligation which bears date in Normandy a man shall not have an Action here but it is good in case of a Will proved here 6 E. 3. 17 18. The Abbot of Crowband granted an Annuity and the Deed was made in Scotland If the Deed had been the ground of the Action then the Action would not have lien but because the Deed bore date before time of memory the Annuity did lie for the Action was not brought upon the Deed but upon the Prescription 1 E. 3. 1. 18. 8 E. 3. 51. It is ruled where the title is made by a
Deed which bears date beyond Sea that the Action will not lie 13 H. 4. 5 6. An Obligation bore date in France and was made according to the Law of France 6 R. 2 cap. 2. Where the Specialtie bears date there the Action shall be brought The first book that speaks of Deeds bearing date out of England 20 H. 6. 28 29. 20 E. 4. 1. 21 E 4. 72. You must suppose then That it was at a place in England and that is but a fiction of Law and you shall never make a man subject to the penalty of a Statute upon a fiction of Law C. 11. part 51. A Disseisor makes a Lease for life or years the Disseisee shall not not have an Action of Trespass vi armis against him because he comes in by title For this fiction of Law That the Frank-tenement hath always been in the Disseisee shall not have Relation to make him who comes in by title to be a Trespassor vi armis 18 H. 6. 23. A Reversion is expectant upon an estate for life and in the mean time betwixt the Grant and the Attornment the Lessee commits Waste yet although the Attornment relate to make the Grant good ab initio yet the Relation being a fiction of Law will not make the Lessee punishable for Waste Then in this our Case the Deed bears date beyond the Sea and then to make Dunkirk to be in England by a fiction in Law shall not be prejudicial to the Defendant Com. 369. The preamble of a Statute is the best Interpreter of the Statute In the Statute of 13 R. 2. the preamble saith Because the Admirals and their Deputies do hold their Sessions c. in prejudice of the King and of the Common-Law and in destruction of the common people c. But this Deed bearing date beyond the Sea is no prejudice to the King nor to his Franchises nor to his people to be sued in the Admiralty 32 H. 8. cap. 14. The suit within the Admiralty ought to concern Charter-partie and Fraighting of a Ship For by that Statute it was enacted That if any Merchant-stranger as Mullibeck was by long delaying and protracting of time As in our Case otherwise then was agreed between the said Merchants in or by the said Charter-partie c. shall have his remedy before the Admiral which Lord Admiral shall take such Order c. In our Case at Bar It was a Charter-partie made beyond Sea 2. It was for the freighting of a Ship 3. For the breach of it was the the suit in the Court of Admiralty But admit that this point be against me then for the second point I do conceive that he who is punishable by the Statutes must be Prosecutor which the Defendant is not for what he hath done he did by vertue of a Letter of Attorney and he did it in the name of another and it is the Act of the other C. 9. part 76. Combes Case If a man have power to do an Act by force of a Letter of Attorney it ought to be done in the name of him who gives the power 3 Ma. Dyer 132. If Surveyors have power to make Leases if they make the Leases in their own names it is not good but they ought to be made in his name who giveth the power 11 Eliz. Dyer 283 The Statute of R. 3. giveth power to Cestuy que use to make Leases and he makes a Letter of Attorney the Attorney must make the Leases in the name of Cestuy que use who hath the power by the Statute C 9. part 75. A Copyholder may surrender by Attorney because it is his own surrender Vi Perkins 196. 199. A Feoffment with a Letter of Attorney to the wife to make Livery is good but then the wife must make the Livery in the name of her husband Secondly in this Case at Barr the beginning and the prosecution of the Suit was altogether for the benefit of Mullibeck and so it appears by the Records of the Court and no notice is there taken of the Attorney but of the Master L. 5. E. 45. A Writ is directed to the Sheriff and the Under-Sheriff makes a false retorn the Sheriff shall be amerced and not the Under-Sheriff for the Law doth not take notice of him 7 Eliz. Dyer 239. The Customer himself and not his Deputie shall be charged And so in our Case Mullibeck being partie to the whole ought to be accounted the partie prosecuting within the words of the Statutes The Statute of 4 H. 7. cap. 27. is so as they pursue their claims within five years such prosecuting or pursuing ought to be by the partie himself C. 9. part 106. If one of his own head make claim it is not good claim for to avoid the Fine c. The Statute of 16â— R. â— cap. 5. of Premunire makes against me for there the Procurours Councellors Sollicitors Abettors and Attorneys are named by the express words of the Statute and there is an express provision against them But in our Case it is not so for if our Statute had intended to extend to Councellors Attornies c. it would have expresly named them There are divers exceptions which I take to the Verdict First There is variance in the place betwixt the Declaration and the special Verdict for the Declaration layeth the Contract to be made at Dunkirk in England and the special Verdict finds it to be made at Dunkirk extra partes transmarinas Secondly The Declaration is to take in Mariners and the special Verdict is to take in Men. Thirdly the Declaration is A Ship to be prepared and the Verdict is to be in readiness Fourthly The Statute of 15 R. 2. and 2 H. 4. gives the Action by way of VVrit and here it is by Bill 42 Ass 11. There one was taken in Execution and escaped and there a Bill was exhibited for the escape and it was holden because the Statute of West 2. gave a Writ of Debt it shall not be extended by equity to a Bill of Debt Com. 38. a. and Com. 36 37. Plats Case There the Judgment is given upon a Bill for an escape but Mr Plowden said that it seemed to divers a hard Case The Statute of â—8 Eliz. cap. 5. of Informers is in the negative viz. That none shall be admitted or received to pursue any person upon any penal Law but by way of Information or original Action and not otherwise Mich. 29 Eliz. in Clarks Case it was resolved that the Statute of 18 Eliz. was a penal Law and the partie must not be sued by Bill but as the Statute hath prescribed 27 H. 6. 5. There upon Premunire facias it was adjudged good by Bill but there the Action was not directed so precisely by the Statute viz. in what manner the partie should proceed There are no presidents that an Action of Debt hath been brought for pursuing in the Court of Admiralty but in such Case a Prohibition granted only
to Thomas Spence and his Wife and the Survivor the Rent of seventeen Pounds yearly and every year during the terme Proviso that if the Rent be arrere by forty daies that Thomas and his Wife or the Survivor of them should enter Thomas Spence died his Administrator did demand the Rent and being denied entred for the Condition broken Calthrope argued That the reservation to the Wife was void because she had not any interest in the Land and also never sealed the Indenture of Assignment but was as a stranger to the Deed and so he said that the Wife could not enter for the condition broken nor make any demand of the Rent The 2l l Point was Admitting that the wife could not enter nor demand the Rent Whether the Administrator of the Husband might demand it and enter for the condition broken because the words are Yeilding and paying to Thomas Spence and Jane his Wife and the Survivor of them during the term and no words of Executors or Assigns are in the Case and he conceived the Administrator could not and so he said it had been resolved in one Butcher and Richmonds Case about 6. Jacobi Banks contrary and he said It was a good Rent and well demanded and the reservation is good during the Term to the Husband and Wife and although the word Reddendo doth not create a rent to the Wife because the Husband cannot give to the Wife yet the Solvendo shall gain a good rent to the Wife during the life of the Wife and the reservation shall be a good reservation to him and his Administrators during the Survivor Vide C. 5. part Goodales Case 38. E. 3. 33. 46. E. 3. 18. and admitting that the rent shall be paid to the Wife yet the condition shall go to the Administrator 2. The word Solvendo makes the Rent good to the Wife and amounts to an agreement of the Lessee to pay the Rent to them and the Survivor of them and that which cannot be good by way of reservation yet is good by way of grant and agreement and many times words of reservation or preception shall enure by way of grant Vide 10 E. 3 500. 10. Ass 40. 8. H. 4. 19. Richard Colingbrooks Case 41. E. 3. 15. 13. E. 2 Feasts and Fasts 108. Richardson Justice The Reservation being during the term is good and shall go to the Administrator Jones Justice contrary It is good only during the life of the Lessor and so was it adjudged in Edwyn and Wottons Case 5. Jacobi Crook Justice accorded The Administrator hath no title and the Wife is no party to the Deed and therefore the Rent is gone by the death of the Husband If it had been durante termino generally perhaps it had been good but durante termino praedicto to him and his Wife it ceaseth by his death And the words durante termino couple it to him and his Wife and the Survivor and it cannot be good to the Wife who is no party nor sealed the Deed neither can it inure to the Wife by way of Grant And the words Reddendo and Solvendo are Synonima and the Administrator is no Assignee of the Survivor for she cannot assign because she hath no right in the Rent Barkley Justice The intention of the parties was That it should be a continuing Rent and Judges are to make such Exposition of Deeds as that the meaning of the parties may take effect I do agree That the Wife could not have the Rent neither by way of Reservation nor by way of Grant if she were not a party to the Indenture but here she is a party to the Deed for it is by Deed indented made by the husband and wife and the husband hath set his Seal to it And 2. The Solvendo doth work by way of Grant by the intent of the parties The Reddendo shall go and relate as to the husband and the Solvendo to the wife and he agreed the Case 33. H. 8. Br. Cases because there expressum facit cessare tacitum but in case of a Lease for years the words Reserving Rent to him shall go to the Executor who represents the person of the Testator and 27. El. it was adjudged in Constables Case and Littleton agrees with it That the Executor shall be possessed and is possessed in the right of his Testator And therefore if an alien be made an Executor in an Action brought by him the Tryal shall not be per medâ—â—tatem lâ—nguae And this Case is the stronger because the Reservation is during the Term. And C. 3. part in Malleries Case That the Law shall make such a construction Upon reservation of Rent upon a Lease as may stand with the intent and meaning of the parties and therefore in that where an Abbot and Covent made a Lease for years rendring Rent yearly during the Term to the Abbot and Covent or to his Successors it is all one as if it had been to him and his Successors and although the words be joint or in the Copulative yet by construction of Law the Rent shall be well reserved during the terme for if the reservation had been only Annually during the terme it had been sufficient and his Successors should have had the Rent Quaere the principall Case for the Judges differed much in their opinions Hill 8. Caroli in the Kings Bench. 517 The KING against HILL AN Information was by the Kings Atturney against Hill and others upon the Statute of 32. H. 8. of Maintenance Where the Point was A man was out of Possession and recovered in an Ejectione firme in May 2. Car. and Habere Possessionem was awarded and 29. Sept. 4. Car. he sold the Land And whether he might sell presently or not was the Question And it was determined That he being put in possession by a Writ of Habere facias possessionem that he might sell presently Vide Com. Crookers Case and C. Littl. acc and so was it holden in Sir John Offley's Case 7. Car. in this Court Barkley Justice If a Disseisor doth recover in an Ejectione firme if he afterwards sell the Land it is a pretended Title Jones Justice It was adjudged 36. El. in the Common Pleas in Pages Case in the Case of a Formedon That if a man be out of Possession for seven years and afterwards he recover that he may sell the Lands presently Crook Justice There is a difference where the recovery is in a reall Action and where it is in an Ejectione firme It was Master Browneloes Case in the Star-Chamber resolved by all the Judges of England That a Suit in Chancery cannot make a Title pretended nor Maintenance Barkley Justice put this Case If Husband and Wife bargaineth and selleth whereas the Wife hath nothing in the Land and afterwards a Fine is levied of the same Lands by the Husband and Wife it shall have a relation to conclude the Wife and to make the Wife to have a Title ab initio It was