to make it actually void For if the words are pursued strictly then it shall be void immediately against the Bishop himself Then the Successor in lieu of a benefit shall take an advantage of the Statute For he cannot make Leases but of things usually demised 32 Eliz. Sale and Sale against the Bishop of Coventry in a Quare impedit It was adjudged That a Quare impedit well lies by an Executor for disturbance made to the Testator And also that a Lease for years is good notwithstanding the Statute The Statute does not intend the benefit of the Lessee but of the Successor himself And the Successor had his Election to accept the Rent or the Land And if it should be voyd his Election is gone Tallengers and Dentons Case 4. Jac. A Lease is made by the Bishop of Carlisle of the Tithes which is out of the Statute And there it is void against the Successor For that that he hath no remedy for the Rent reserved upon it And that point is so adjudged upon the Statute of the 13 Eliz. Walters Case before resolved that a Lease made by Dean and Chapter not warranted by the Statute is but voydable against the Successor Pas 6 Iac. rot 1041. Wheeler and Danbies Case Robert Bishop of Glocester 30 Eliz. makes a Lease to Iasper habendum a die datus to him for life the remainder to William rendring the ancient Rent The first Lessee dies the Successor having notice of it and that divers Rents were behinde commanded his Bayliff that he should receive the Rents The Bayliff enters them and receives Rent of that Lessee the Bishop having notice of it And these points were resolved First the Iury finding a Lease a die datus might be intended good for that the Entry was made after the day yet the Iury finding a thing impossible does not conclude the Iudges Secondly that a Lease in remainder is not warranted by the Statute 1 Eliz. Thirdly that the Lease was but voydable by the Successor for the Statute was made for the benefit of the Successor but the grand Question was of the manner of acceptance and resolved Fourthly that the acceptance binds the Bishop and the Authority given to the Bayliff and also his receipt For it differs where the Bayliff of his own accord receives Rent Dyer And they also say that that was to perfect an estate setled And it differs from an Attournment which is to perfect an estate setled For there notice is requisite c. Gammons Case again HEndon said that a Scire facias does not lie upon that record because an action of debt well lies For no president can be shewn that a Iudgement given in an inferiour Court may be executed so For first that Court shall not make an Instrument to execute Iudgement given in another Court It is seen that an Attaint lies of false Iudgement given in an inferiour Court Take the Case in 14 H. 4.4 And so if issue be joyned in an inferiour Court without custom It shall not be removed to be tryed so And so it is our Case c. Secondly the Statutes do not give them power viz. 26 H. 8. 34 H. 8. makes the matter clear that it cannot be Error in an Assize before the Iustices of Assize will not lye in this Court. For Iudges Itinerant are superior And those Iudges are appointed by Act of Parliament and so the Iudges also in Wales are by Act of Parliament And having power a Oyer et terminer It is not found that after Iudgement a Certiorari had been received to remove the Record out of an Inferiour Court And the mischief would be if Iudgement should be given for 20. l. it should be executory through all the Realm where they have but a special Iurisdiction And also the tenor of the Record is only removed and execution cannot be out of the tenor of the Record Dyer 369. Plow 52. Richardson The question is whether when the Record is so removed whether it shall be idle If Iudgement be given in an Inferiour Court which holds Plea by prescription or by grant and removed by Writ of Error if the Iudgement be affirmed we may award Execution 16 Iac. There is an express president of a Iudgement in an Inferiour Court and a Scire facias is granted so And also a Scire facias is granted in lieu of an action of debt For by the Common Law he might not have a Scire facias after the year but an action of debt And by the Common Law debt lies in that Case Harvey and Crook Iustices said that Court shall not be an Instrument to execute Iudgement in an inferiour Court which they cannot And also the Land of the Defendant shall be lyable to an execution in any place in England where before only the Land within the place was lyable And also the purchaser could never finde out what executions might be upon the Land Richardson said that the mischief would be great on both sides For otherwise what Iudgement was given The Defendant would remove his goods out of the Iurisdiction of the Court and then the Plaintiff had no remedy but by new original And Crook Iustice If a man brings an action in a Court he ought to examine what the end of that will be For it is a president a man ought to respect things in their end For it is his own folly to commence an action where he cannot have execution For that he may commence his action and have execution in any place in England And although that a forrain Plea in an Inferiour Court may be tryed so yet it is by Act of Parliament viz. 6 E. 1. 12. which proves by the Common Law there was no remedy Tithes of Pidgeons and Acorns A Parson Libels in the Spiritual Court for Tithes of Pidgeons and Acorns And the Defendant prayed a prohibition Because the Pidgeons were spent in his own house and the Acorns dropt from the Tree and his Hogs eat them And it was said by the Court Acorns are Tithable 11 Rep. 49. But then they ought to be gathered and also sold And a prohibition was clearly granted Thomas Wilcocks Case MOre of the Case of the Vniversity of Oxford Thomas Wilcocks Mr. of Arts in St. Mary Hall in Oxford was sued in the Chancellors Court there by Anne wife of Ralph Bradwell and Christian her daughter For calling the wife Bawd and old Bawd and the daughter Whor. and scurvey pockey-faced whore And they procured two Sentences against Wilcocks and upon them he had two prohibitions And Davenport moved for a Procedendo for that that by their Charter which was confirmed by Parliament The Chancellor or his Deputy shall have Conusans of all causes personal where one of the parties is a Scholar And the Charter was shewed in Court which was to this purpose That they shall hold Pleas c. or Secundum morem Universitatis or Secundum legem terre And the custom was to proceed according to
not but a liberty given by the Conisee to the Conisor to be at large That does not release the Execution Dolbins Case IN a Replevin the parties were at Issue and the Plaintiff sued a Venire f. c. returnable such a day at which day the Sheriff does not return the Writ Wherefore the Avowant by Ward prayed a Venire fac with a proviso for him And it was granted by the whole Court Fossams Case A Man after the Statute of 27 H. 8. makes a Feoffment in Fee to the use of himself for term of his life and after his decease to the use of I. S. and his Heirs The Feoffor does waste And I. S. brought his Action of Waste And now if his Writ shall be general or special was the Demur in Iudgement And Hutton and the other Iustices were clearly of opinion That the Plaintiff ought to have a special Writ And so it was adjudged afterwards Doswell against Iames. IN Debt brought upon an Obligation Iames shews that the Obligation was endorsed with a Condition to perform all the Covenants comprised in an Indenture and he pleads that all the Covenants were fulfilled And does not shew in certainty the Covenants nor how they were performed And Hitcham said that the Plea was not good For there is a Diversity when one pleads in the Affirmative and when in the Negative For if in the Affirmative he shews in the certainty how the Condition or Covenants were performed And there is no diversity in my opinion between the Conditions which were upon the dorsed Obligation and the Covenants in the Indenture And it is to be thought that he who knows more of the Truth should shew it in his Plea And therefore he who pleads the Affirmative shews how the Conditions are performed Because it lyes much in his knowledge Whether he hath performed them or not But where he pleads in the Negative otherwise it is For there he is not to shew the certainty And yet I will agree that if one brings an Action of Debt upon an Obligation indorsed with a Condition The Defendant may plead the Conditions performed generally But otherwise it is of Covenants in an Indenture And in an Obligation with a Condition endorsed if he pleads the Conditions performed and he shews what thing he hath done If it be in the Affirmative he ought to shew the certainty of it also So that for that cause the Plea will not avayl Also it is incertain and doubtfull to the Iury. For if in that Case we are at Issue upon such a general Plea Although it shall be tryed by the Iury Yet it would be strange to enquire of such general things Wherefore c. Gerrard against Boden AN Annuity was brought by Gerrard against the Parson of B. And the Plaintiff counts That the said Parson granted an Annuity of 40 l. pro bono consilio suo imposter impenso for term of life of the said Parson And for 30 l. of arrerages this Action was brought Finch thought the Count not to be good And first it is to be considered If that Annuity might be assigned and granted over or not And as I think it cannot For an Annuity is not but as a sum of mony to be paid to the Grantee by the Grantor And not at all to the realty if the Land be not charged by express words in the same Deed. And to prove it If a man grant an Annuity to me and my Heirs without naming of my Heirs If the Annuity be denied it is gone Because my Person is only charged with the Annuity and not the Land So if a man grants to you the Stewardship of his Mannor of D. and to your Heirs you cannot grant that over And so of a Bayliwick But peradventure it may be said That an Annuity may be granted over in this Case Because in the Habendum It is said to the Assignees of the Grantee But that is nothing to the purpose as I think For I take a difference when a thing comes in the Habendum of a Deed which declares the Premises of the Deed For there it shall be taken effectuall but otherwise not As if Lands be given to a man and his Heirs habendum sibi haered de corpore suo procreat That is a good tayl But if a thing comes in the Habend which is repugnant to the Premises of the Deed and to the matter of the thing which is given by the Deed Then the Habend is void for that parcel As in the Case at Bar it is meerly contrary to the nature of the Annuity to be assigned over to another And there is no remedy given for it but an Action and it is Common learning that a thing in Action cannot be assigned over unless it be by the grant of the King Also by their Declaration they have acknowledged it to be no more than a chose in action Then a Rent seck for which he had not any other remedy but an Action after Seisin For he said that he was seised in his Demesn as of Franktenement of the Rent aforesaid Then it ought to be a Rent-seck For of no other Rent can a man be seised in his Demesn because they lye in prend As of Advowsons common for years and of Estovers And I will not agree that difference put by Littleton in his Book to this purpose For of such things which lye in manual occupation or receipt A man shall not say that he was seised in his Demesn as of a Rent Because it lyes in the prend Pasc 4 Car. Com. Hanc And in the 21 E. 4. The Case is doubtfull And Crawley of the same opinion Hitcham of the contrary And at another day Hutton said that the parties were agreed Hitcham We desire to have your opinion notwithstanding for our learning Hutton said We are agreed that the Annuity may be granted over and it is not so much in the personalty as hath been argued by Finch And in some Books it is said that a Release of personal Actions is not a Plea in a Writ of Annuity Groves against Osborn THe Case was thus A man makes a Lease for life the Remainder for life upon Condition that if the second Lessee for life dye in the life of the first Lessee That the Remainder in fee shall be to another And it was said That that Remainder might commence upon that Condition well enough It was said by Atthowe That where a Remainder depends upon a determination of another Estate So that none shall take any Estate by the Remainder upon Condition then the Remainder is good As if a man give Lands to A. for life upon Condition that if I. S. pay me 40 s. before such a day That the Remainder shall be to him That is a good Remainder But when an Estate is to be defeated by a Remainder depending upon that Then the Remainder is not good As if I lease Lands for life upon Condition That if the Rent be in
a title be made there by prescription it is méerly coram non Judice and if they cannot meddle with the principal it is not reason that they shall tax costs And a prohibition was granted Fawkner against Bradley FAwkner and others against Bradley In false judgement given before the Sheriff of Bâ—…rkshire Bradley brought a replevin against Fawkner and the others who commanded the Sheriff to deliver the goods and summon the parties to appear The parties being demanded at the day they appeared and then the Plaintiff declared upon which it was proceeded to Iudgement And it was held to be naught For that he declared before any appearance But upon the default he might have an attachment and a distresse insuing Dame Sherleys Case DAme Sherley wife of Sir Henry Sherley sued in the High Commission Court for Alimony And Hitcham moved for a prohibition And said that alimony is not within the jurisdiction of the high Commssion For the Court of high Commission is to try ardua regni which are not tryable by the Common law Richardson The power of the high Commission is not de arduis regni but of heresies and of such other things Ecclesiastical And he said that the Court of high Commission had special words in their Commission but not in the Statute of primo and that the Statute de primo had no prerogative in that And so the question is if the King may by the Common Law grant such a Commission Hutton said that by the same reason as he may grant such a Commission They may grant Commissions for all other things Yelverton I marvail how that came within their Commission he said that in tempore Iacobi upon a debate before him Sir Edward Cook so fully satisfied the King And this matter of Alimony was commanded to be put out of their Commission And upon that Richardson said to Hitcham Move this again when the Court is full for we may advise of this Et adjournat Lynne against Coningham LYnne against Coningham in an action upon the case the matter was thus An action of debt was brought by the Plaintiff and he recovered and had a capias ad satisfaciendum to take the party The Sheriff arrests him and the Defendant made a rescous And in that if an action lies for the Plaintiff was the question And Ayliff said that the action did not lie against the party who made the rescous but against the Sheriff And he cited Fitzher Nat. Brev. 16 E. 4.3 where the difference is If an arrest be made upon a mean process and a rescous made There the Sheriff is not responsable Because that the Plaintiff might continue his processe against the Defendant But if it be upon Execution after Iudgement Now an action does not lye against the party but against the Sheriff And if he had an action against the party he shall have an action against the Sheriff also and so twice satisfied And the Sheriff shall have an action against the party and so he shall be twice charged Richardson said That the action well lies for the Case in 16 E. 4. It is séen there that it is doubted upon the mean proces execution as to the rescous the party may have an action either against the Sheriff or the rescoussers And in some cases a man shall have his election of the actions and both actions are but to recover damages A man had an execution against one He saw the man and conveyed him out of his sight And it was adjudged that an action upon the case lies against him And peradventure the Sheriff is dead then he should have no remedy if he had not an action against the party and no inconvenience follow For he that will do such a wrong it is no matter if he be charged by both If the Sheriff suffer one to escape it is an escape as to the Sheriff but the Plaintiff may have a new execution against the party if he will as it was resolved in this Court but Hutton on the contrary and that the action does not lie As if a man be imprisoned and an other help him out of prison yet an action will not lie against him by the Plaintiff And the difference is good where a man is arrested upon a mean processe and rescued and afterwards becomes non solvend so that they who rescued him is the cause of the loss of my debt It is a wrong upon which he may be indicted Yet the party shall not have a remedy against him because that he may proceed And then he should be the cause of multiplicity of actions Yelverton was of the same opinion and agreed that difference put before And that there is no difference between this case and the case put by Hutton For a rescous made half an hour after the arrest is all one as if it were a year after And Fitzherb nat brev 102. satisfies me Harvey on the contrary He who was injured the law gives him a remedy against the party who did the wrong In the Kings Bench the case how one came to take in execution by a fier fac the goods being in an house and one séeing the Sheriff came and shut close the door and adjudged that an action upon the case lies against him And there is no difference between our case and that where one comes to make execution and the other makes a rescous Richardson in Greshams case Gresham was possessor of the glasse house at Black-fryars Beresford was a Glass-mamaker and had many glasses in Greshams house Seaman recovers in debt against Beresford and coming to make Execution of those glasses Gresham standing at his door séeing them coming and knowing their purpose shut the doors Seaman brought an action upon the case against him and judgement was given for the Defendant because that the Sheriff never demanded the Key to open the house 18 E. 2. If he had demanded the Key it had been adjudged against Gresham And there if an action upon the case will lie for hindring to make execution a multo fortiori when it is actually done and then the party rescued And he denied the case put by Hutton where one is rescued out of prison And said if one be rescued from the Bayliffs the Sheriff ought to have the action Hutton upon a mean process the Sheriff never had remedy for the rescous but he shall return the rescous But upon an execution he shall not return the rescous but he shall have an action and that the party is not prejudiced for he shall have an action against the Sheriff who in judgement of law is the party lyable Crook That the action will lie is a mischief on both parts The Defendant may be twice charged and the Plaintiff may lose his Debt But I conceive the action well lies against him who made the rescous c. And if the Sheriff brings the action he may plead the recovery by the Plaintiff when the Sheriff makes his return of the
rescous there is no remedy against him as it was adjudged And the difference is that when he goes to make execution it is at his peril if he does not take power enough with him so that he may do it And if the Gaol be broken it is no excuse for the Sheriff Also if the party taken before he come to the Gaol is rescued there is no remedy against the executors of the Sheriff If debt be brought against the Sheriff for an escape and in that a recovery the Plaintiff shall never take the party again And so also if he brought an action against the party and recovered the Sheriff may plead that And for the book in Fitzh Nat. brev cited it remains doubtfull Hutton a Stranger commits waste and the Lessee dies yet no remedy against the party who committed the waste for the Lessee is charged of waste And so also the Sheriff of an escape But after as it was told me by one who was present Iudgement was given for the Plaintiff Humbertons Case IT was said by Richardson and agreed by Hutton That a term evicted upon an Elegit is grantable but upon a Statute Staple or Merchant not And Richardson said That Fillwoods case in the 4 rep 66. if it be well observed will prove that difference Isham and Lawnes Case NOte in evidence to the Iury in an Ejectione firm betwéen Isham and Lawne It was said by Richardson and Hutton and by divers Serjeants at the bar and not denyed by any If a Son disseise his father and levy a fine with proclamations to a Stranger upon whom the Father enters and dies The son may re-enter against his own fine Allen against Westley IN evidence to the Iury betwéen Robert Allen and Isaac Westley upon the 5. Eliz for perjury Richardson there remembred that there was one charged with perjury and it was layed that one swore that he drew his dagger and beat and wounded another And it was found to be with a staff and it was agréed not to be perjury for the beating was only material It was one Styles's his case and it was agréed by the Court in that case that although a witness swears the truth yet if it be not truth of his own knowledge as if he shews how one revoked a will by paroll in his hearing when the words were spoken to another in his absence he does not swear truly and it is a corrupt oath within the Statute And it appears in the case in which this perjury was supposed to be committed which was between Allen and Westley also that these words were good words of revocation of a will I utterly renounce and detest that Will and will make a new one But if they were That Will shall not stand I will make a new one they are not For the first shews a present purpose of revocation the last a fortiori but more afterwards Thomas and Kennis's Case before DAvenport argued for the Plaintiff And the Question here is Whether there was any Estate in Edward and Walter setled at the time of the Fine levyed Or their Estate was only in contingency Because that Richard was then living For I agrée that if at the time of the Fine levyed Edward and Walter had not any Estate setled or vested but all in contingency That then the Fine destroyed all the Remainders For it is clear when Tenant for life is and the Remainder in contingency levy a Fine That is a forfeiture and destroys all the contingent Remainders 1 Rep. 131. I hope that they will agrée that if there be an Estate setled in them that Tenant for life levies that Fine Although that they in the Remainder do not enter within 5 years after the death of Tenant or after the estate escheated And that was adjudged 21 Jac. Tooker Lawns Case in the Kings Bench. But the Case was Mich. 33 34 Eliz. The Question then is whether Edward and Walter having any Estates setled in them two Estates are so limited to them joyntly for their lives so long as Richard and Anne shall have issue male of their bodies living Secondly The Estate to them was to their own use and that was not joyntly but successive And if any of those uses were in esse at that time of the Fine then they fall out clearly with the Plaintiff I conceive that both their Estates were in them First concerning the first Remainder limited to their joynt use in which it is to be considered Where the not setting forth of the Lands makes it contingent It is a strange Case That if the directions for the setting out had been observed that then there might have been a present Estate setled upon a subsequent Condition and not upon a precedent Condition Where it ought to be agréed when the Indenture is made with a Covenant to levy a Fine That no use will rise before the Fine Coment 302. Then although some things ought to be done before the uses will rise If those things had been done the use ought to be raised For certum est quod certum reddi potest 17 E. 4. 1. When contracts are upon incertainties when the thing uncertain is become certain when the Indenture was sealed that made a contingent use in the limitation but when the thing had been done it shall make a perfect use in the limitation But now it is become impossible by the non-performance c. It had been urged that so there shall be a double contingent which is concerning the Houses c. I say there is a great difference between a Collateral use which does not depend upon the other Estates and an Estate limited in course of a Remainder I agree if they be contingent Remainders the Fine will destroy and overthrow them but if there be a collateral clause by which a use is limited As if there be a Proviso that if such mony be not payed it shall be to such an use That contingent use is not destroyed by Fine 1 Rep. 130 134. Chidleys Case where the difference is directly taken If a Feoffment be made to the use of the Feoffee for life with divers contingent Remainders over If Tenant for life makes a Feoffment all the contingent Remainders are destroyed But where the contingent came in by a collateral Clause and not by way of Remainder otherwise it is As a Feoffment to the use of a man and his wife which shall be a Remainder over That is a good use to the wife and cannot be destroyed by feoffment Dyer 274. and Bracebridges Case cited in Chudleys Case 133. It was adjudged accordingly In the third branch here it is If he dies then she should have the Houses during widdowhood But the course of the Remainder came in the fourth clause And that had relation to the first And as to the second as it is shewn that at the time of the limitation it was not the intent that the Remainder shall be contingent to Edward and Walter
three things were moved in arrest of Iudgement which Serjeant Barkely answered There was a covenant to enter into an obligation at Michaelmas and the Plaintiff shews that he entred before So he does not perform the consideration which he conceived to be a good performance For if a man be bound to doe an act or pay money at Michaelmas a payment before is good H. 7. 17. 2. pasc It is shewn that an action of Covenant was brought after And they say that upon his shewing covenant does not lie but debt but he said that the Plaintiff had his election here to have debt or covenant As in the Lord Cromwels case the words covenanted provided and agreed give advantage of a condition or covenant If a covenant had been sor 30 l. then debt only lyes But here it is to perform an agreement Thirdly that it appears within the declaration that the action of the case was 6 years before the action brought And so by the Statute of 21. Jac. the action does not lye I agree if the cause was 6 years before yet the breach was within the 6 years and that is the cause of action 6. rep 43. In a covenant there is the deed and the breach of the covenant and that is the cause of the action And therefore being matter in Deed an accord with satisfaction is a good plea to it 13. E. 4. Attaint is grounded upon matter of record but the false oath is the cause of it For that there also accord is a good plea So in our case the non performance by default was not at the time limitted which was before the 6 years but no action was brought against the Plaintiff untill within the six years And then he is not damnifyed untill within the six years 5 Rep. 24. Richardson For the two first exceptions he agreed with Barkley as to the third he said that there can be no action before the breach of the promise or covenant But the breach here is before the six years for the non performance of the agreement is a breach and a breach is a damnificationn In one Boughtons case the non payment is a damnification But all the question here was whether that ought to be pleaded but I conceive that it need not for by the Statute-law the action is taken away And it being a general law the court ought ex officio to taken notice of it For in that after verdict if it appears that there is no cause of action although the verdict be found for the Plaintiff he shall never have Iudgement And upon the matter that latches in time amounts to a release in law the proviso cannot ayd you For every man shall be intended without those disabilities for that that he would shew that he would have advantage of it And Crook of the same opinion for the reasons given before and said that although the Statute took away the Common law yet it is good law and done for the ease of the subject and for that shall be favoured as the Statute of limitations in all cases But he said the non performance was not a damnification before the action brought As if I be bound as for surety for A. who is bound to save me harmlesse Although he does not pay it at the day There is not a breach before the arrest or Iudgement For by the Iudgement the lands and goods are liable But for the arrest his body is troubled for that now the Scriveners put in such obligations that they save harmlesse the party and pay the money at the day But for the other matters in all he agreed and cited Richardson and Burroughs Case Where a payment before the day was adjudged a payment at the day Yelverton That is not found that there is any sufficient notice given to the Defendant by the Plaintiff of the agreement made which he ought to have And he agréed in omnibus with Richardson and said that Scriveners use things ex abundanti Richardson It is said habuit notitiam in the Declaration but does not say by whom Yet after verdict it shall be intended a good notice And although that Nichols had given the notice it is sufficient If there be a Lease for years upon condition that he doe not assign the other accepts the rent of the Afsignee before notice He shall not be bound by that acceptance before notice But if notice may be proved either by the Plaintiff or by any although it be by a meer stranger It is sufficient Yelverton denied that for he said That none but privies can give the notice of it as the case is Et adjournatur Denne and Sparks Case before RIchardson If a will be of lands and goods and that was the occasion of this will the revocation is only tryable at the Common Law But when the will is of goods only the occasion of it shall be tryed only in the Spiritual Court For it is incident to the probate of the will quod fuit concessum And he said that in the case before if the will be not revoked the devise is good at the time and the administration shall be granted as of his goods for the Law will not change the property of the residue after debts and legacies paid Crooke The case here is that the Testator makes his will of his lands and goods and devises the residue of his goods ut supra to his wise his Executrix who dies before probate Denne sues to be administrator as the goods of the first Testator and alleges revocation which because that his Proctor did not goe and swear that in fide Magistri sentence was given against him Vpon that he appeals in which there was the same Obligation and affirmed by the Oath of his Proctor Yet sentence was given against him And a prohibition ought to be granted for three reasons First For that the Will is of Lands and Goods and the occasion of that tryable here Secondly they offer injustice in giving the allegation Thirdly The Wife here dying before the probate the administration ought to be granted as of the goods of the Testator and not as of the wife And also they here would inforce Denne if he had the administration to take it cum testamento annex Which shall be an admittance by him that there was not any revocation Richardson for the first reason he agréed that the revocation shall be tryed by the common law But the goods here are only in question and all the usage and practice is that a prohibition shall be granted with a quoad the lands For the second That they will not allow the allegation If they will not pursue their rules and order of Iustice That is not a cause of a Prohibition but appeal for the third It is fit that there shall be an election if debts and Legacies are owing But it doth not appear here that there are any debts or Legacies to be paid but after Harvey agréed with Crook
And at length it was adjudged that the Declaration was good Harding against Turpin IT was agréed by Hutton If a Copyholder makes a lease for years to commence at Michaelmas it is a forfeiture presently None gainsaid it Hutchinson against Chester AN action upon the case was brought against Chester And declares how the Plaintiff was in doing of certain businesse for the Defendant The Defendant said to him Do it and I 'll repay you whatsoever you lay out And shews that he had expended 4 l. and does not shew in certain and particular circa quid And for that cause it was held naught Read against Eaglefield IN debt by Read against Eaglefield and others who were Sheriffs of Bristowe The case being that they being Sheriffs took the Plaintiff by a Capias ad satisfaciend and detained him in prison untill the party Defendant and now Plaintiff paid the money to the Sheriff It was held that that was contrary to his warranty which is ita quod habeat denarios hic in curia And for that he did not so he is chargeable to him that was in Execution Stone against Walsingham STone libels against Walsingham in the spiritual Court and he pleads an agréement that for five years he ought not to set forth his tithes but to pay for them 6 s. 8 d. upon which matter a prohibition was granted Richardson you ought not to have a prohibition A lease for tithes ought to be by deed but by way of contract it is good for a year only without deed Vpon the Book M. 26 H. 6. But for 4 or 5 years by parol Such an agreement is not good Richardson May a Parson bargain and sell his tithes happening 4 years after by parols Yelverton It had been so adjudged in many Cases in the Kings Bench and the difference is where it is by way of demise and where by discharge Hutton The reason why it is good for years is for that that the contract moves severally But by way of deuise between Parson and Parishioner it is not good And Weston and Biggs case where it was resolved If there was an agréement made between Parson and Parishioner for discharge for tithes for years it was good without deed otherwise if it be for life Davenport not Richardson Then for more than a year that contract is void And you cannot bargain and sell the profits of beasts which a man hath not in his possession now but for those which he hath in his possession he may sell any profits Quod concessum Intr. 4 Car. rot 670 or 870. Litman against West LItman brought an action upon the case against West for words And he declared he being an Attourney c. and colloquio habito between them concerning his office The Defendant spoke these words He is a Cozener and hath cozened me of 20 s. And Serjeant Henden objected that the words were not actionable For that that they are too general And although they had Communication of his Office As Attorny Yet when the words were general and might be applyed as well to other things as such as touch his place yet for that c. As if one says of an Attorney Thou art a Common Barrettor Is not actionable And it was adjudged where one said to a Wheeleright Thou art a Cousener and hast cousened me of a pair of Wheeles Is not actionable And Sir Wil. Fleetwoods Case One said of him He is a Cousener and hath consened me in entring the Kings Accounts So here he might cousen him of 20 s. twenty ways and not as Attorny Richardson said the words were actionable Some words spoken of some men would bear an Action although the same words spoken of another would not As the Case of an Attorny especially as the Case is laid here And he had spoken of him as an Attorny Then it ought to be taken that he was a Cousener in his profession If one said of an Attorny Thou art a Cousener and hast delivered cousening Bills c. If it had been laid here that he had been an Attorny for the Defendant It would be actionable And this Case is more strong than Birchleys Case in Coo. lib. 4. One said of Chomely Recorder of London That he could not hear but of one side of his head And that was adjudged actionable And that being spoken of an Attorney there it would bear an Action One said in the North Country That one was a Daffidowndilly and adjudged actionable Because that the word there used expresses an Ambidexter being a flower of party colour Hutton said That the action would lye In one Gardleys Case who was an Attorny One said of him he was his Attorny and he had cousened him So of a Goldsmith Thou hast consened me and sold me a Saphire for a Diamond These words are not actionable because that the Goldsmith himself might be deceived in the stone And here these words spoken of an Attorny cannot be otherwise but to disgrace him in his profession An action in the Kings Bench. Thou art a cousening Knave Coroner and adjudged actionable One said of a Lawyer He hath no more Law than an Horse an action lies for both are applyed to his profession Yelverton agreed that the Iury had found that the words were spoken of him as Attorny For they have found the words in the Kings Bench. The Case was An Inne-keeper and an other were in communication and he said to him No man comes to thy House but thou cousenest him And adjudged actionable And so Iudgement was given for the Plaintiff Middleton against Sir Iohn Shelly MIddleton recovers in Debt against Sir Iohn Shelly and had Execution And afterwards Sir Iohn purchases the Land of the Plaintiff And long after the Execution was sued by Elegit and that land extended But before Livery by any the Plaintiff dies Yet the Sheriff returns that he delivered the Land Hutton We will not credit that he is dead But you bring a Writ of error Yelverton agreed The return of the Sheriff Richardson the return of the Sheriff does not prejudice a third person although it concludes the parties And if the Execution was made if the party brings an Ejectione firm Whatsoever the Sheriff returnes his proceedings ought to be proved legal See if the Sheriff deliver possession where the partie is dead if any thing lies It was urged to have a writ of restitution But where the Sheriff gives possession contrary to the rule of the Court. Coventries case IN Coventries case before Ashley brought a Copy of the sentence given in the high commission Court which was that the parties shall be excommunicated and be fined 30 l. and imprisoned Whereupon he prayed a prohibition Richardson If they had gone but to excommunication they had been well Yelverton Iustice they have power by fine and imprisonment in some cases but here where the party grieved may be fined at Common law not For if the party be fined in the high Commission and be
And a Condition that a Lease for 3 years shall be void if the Lessor dye during the term is a good Condition Without doubt the custome is as old as the Estate then it is as good to abridge the Estate as to the other to create it is It is reasonable too For the Lord should have his Tenant in possession by which he may the better pay his Fine But if the Lease be made by Licence of the Lord It is a Confirmation For that if the Copiholder makes a Lease for years with Licence and dies without Heir The Lord shall not avoid the Lease In some place the custome is If a Copiholder dies before Candlemas the Executor shall have it for that year to remove and dispose the Copiholders Estate Custome in this Case you see tolls the Heir And he agreed the Case and difference cited by Atthowe out of Cook Littleton Harvey agreed That it is a good custome for the Lord and for the Tenant For the Lord to know his Tenant and for the Tenant to have the Estate and pay the Fine Yelverton agreed also the Lease for a year is in it self made by custom And the same custome may confound it For there is a concurrence of others or one may controll another 21 H. 7. 14 H. 8. A Lease for years provided the Lessor may enter at his will that is a good lease determinable at will being uno flatu so So in our Case But it is done that a Copiholder within the year surrenders his Copihold that the Lease shall be void That is an unreasonable custome In the Kings Bench It was adjudged A Copiholder makes a Lease for years by Licence and the custome if the Lessee was not in possession at the time of the death of the Lessor that it shall be void Lessee assigns that over and the Assignee holds it For custome ought to be taken strictly And he agreed the Case put by Hutton of an Executor And the difference that against the Lessor it should not determine And the reason put before And so judgement was given for the Plaintiff Stone against Walsingham before THe case was again moved in Court which was that they agreed de anno in annum so long as the one should be Parson and the other Parishioner si ambobus partibus tam diu placuerit he should retain his tithes for 6 s. 8 d. per annum And Richardson Iustice said and it was not denied that the suggestion is naught for the incertainty of it and a Prohibition cannot be granted upon that For the words de anno in an make an estate for a year And the next words make an estate for life the last but an estate at will what shall be traversed here It is seen that for years it is good without Deed but not for life And if it be but at will when the other demands his tithes the Will is determined But at an other day the suggestion was made That he made severall agreements with his Parishioner that he pay 6 s. 8 d. for his tithes for 4 years And then a Prohibition was granted Harvey sufficit If an agreement be proved for those 4 years Wilson against Peck WIlson brought an action upon the Case against Peck and declares A Man may justifie in maintenance that he was a Sollicitor That the Defendant in consideration that the Plaintiff should be his sollicitor in several sutes depending against him in this Court affirmed that he would give to him for his pains as much as he deserved And he said that he deserved five marks And upon an Assumpsit pleaded it was found for the Plaintiff And it was moved in arrest of Iudgement that the consideration was against Law because that it was maintenance But Henden on the contrary And that it was lawfull to have a sollicitor 5 H. 7. 20. There it is said that a man may justifie in maintenance that he was a sollicitor And the fees of an Officer 3 Iac. cap. 7. gives satisfaction in that case It was said that a sollicitor is not a man known at the common law but an Attourney and had his fees set out by the Law 9 Eliz. Dyer Onelyes case But Munson and Manwood held that it was maintenance in a sollicitor to prosecute and pay money for another And Dyer did not oppose that opinion Pas 13 Iac. Rot. 75. Com. Banc. Solomon Leeches case An Atturney of this Court brought an action upon the case for solliciting of sutes And there it was conceived that it was an ill consideration and could never have judgement But Richardson said that in Solomon Leeches case he brought an action for the money disbursed and not only for as much as he deserved for his labour And said that a Sollicitor is a person known in the Law 1 H. 7. And it was one Snowdens case One brought an action against him And he justified that such an one made a title to his Clyents land and that he was his Sollicitor in the suit And ruled to be a good Iustification By which it appears that a Sollicitor is a person known in the Law And the Stat. 3 Iac. much prevails with him for to be of that opinion And it would be a miserable case if you would allow no Sollicitors but Attourneys in the Star-chamber Chancery For there the Attournies will not move out of their Chambers And also it is convenient that Attournies of this Court follow businesses in the Kings Bench And the case was in consideration that he would be my servant and follow my sutes I promise him as much as he deserved An action will clearly lie here and a Sollicitor will not alter the Case For he is not but a servant Hutton on the contrary I may retain a man in my service he may follow my sutes but then he ought to maintain the action upon the Statute For a Sollicitor is within the Statute and a Sollicitor of sutes is one kind of maintenance and we ought not to allow it And so it was taken in Leeches case That there was no remedy for a Sollicitor if he had not an obligation And he said that in the Star-chamber in the time of Egerton a Sollicitor was punish'd there Yelverton agreed with him Harvey said that the same case is now depending in the Kings Bench. And the opinion is that an Attourney or a Counsellor who had a profession towards the Law might sollicite any sute in any Court and it is not maintenance But another person not Yelvert agreed to that but said that he ought to shew in his Declaration that he is an Attourney And afterwards the parties agreed c. Scire facias against the Bayle IF a Scire facias be brought against the bayle and Iudgement be Debt be brought against the bayl that the Plaintiff be satisfied out of the lands and chattels of the bayle and so a capias does not not lie against them But if debt be brought as
contained in the Declaration That the Defendants were guilty before scil October Vpon which the Defendants demurre and Iudgement was given for the Plaintiff Although it was objected that the Iustification here by the Custom before had taken away the property And I shall be debarred in Detinue and so in Trover But the Court was of the contrary opinion That the Defendants Plea in barre here shall not be good without traverse as it is and therefore the time is not made material but any time before is sufficient Méer possession sufficeth to maintain a Trover Pasc 7. Car. Com. Banc. Eaglechildes Case FInch Sergeant said that 6 Car. in the Kings Bench it was ruled upon Bill of Exchange betwéen party and party who are not Merchants There cannot be a Declaration upon the Law of Merchants but there may be a Declaration upon the Assumpsit and give the acceptance of the Bill in Evidence Crompton against Waterford WAterford was sued in the Spiritual Court for saying these words of the Plaintiff she will turn tayl to tayl with any man intimating that she would be naught with any man And sentence was given for the Plaintiff Whereupon he appealed to the Delegates propter gravamen And the Delegates overruled it and assesse costs for the wrong appeal Then there was a prohibition granted because the words were idle words and not punishable in the Spiritual Court Hutton seemed That the costs taxed by the Delegates are not taken away by the Prohibition Richardson on the contrary For the principal is prohibited and the costs are incident And because that a prohibition stays all proceedings the costs are taken away If the costs are to be executed by the Delegates then the prohibition to them will help But if the costs are remanded to the inferiour Court as well as the cause then the prohibition to the Inferiour Court will help So quacunque via data the costs are to be discharged And the party if excommunicat be dissolved And so agreed by the Court. Alleston against Moor. ALleston an Attourney of this Court brought an action upon the Case against Moore for calling him cheating knave and it was not upon speaking of him as an Attourney And for that by the Court in arrest of judgement It is not actionable If he had said you cheat your Clients it would be actionable One said That my Lord Chief Baron cannot hear of one ear colloquio praehabito of his administration of Iustice And it wad adjudged actionable Otherwise it had been if they had had no discourse of his Iustice Trin. 7 Car. Com. Banc. Coxhead against Coxhead IN Debt upon an Obligation the Condition was to perform an Arbitrament and the Defendant pleads nullum fecere arbitrium The Plaintiff replies that they made such an arbitrament and recites it the Defendant rejoyns that the Condition was to make an arbitrament of all things in controversie and that other things were in controversie whereof no arbitrament was made The Plaintiff sur-rejoynes that the Defendant did not give notice of those upon which issue was taken and no place alleged where notice was given And that exception was moved in arrest of Iudgement And upon that Iudgement was stayed Trin. 7. Car. Com. Banc. NOte It was said by Richardson Chief Iustice If a man sends his servant to a Draper to buy cloath for his Master and makes not the contract in his own name That the Master shall be charged and not the Servant Which was not denied 11 E. 4.6 Tomlinsons Case IF an Executor is sued in the Ecclesiastical Court for a Legacy and the Executor pleads plene administravit a Prohibition shall not be granted if they will not admit that plea. For they ought to judge there if he had administred fully or not But upon suggestion that they did not reject any administration which our law allows A prohibition shall not be granted as Richardson said which was not denied by the whole Court Williams against Floyd WIlliams was Plaintiff by an English Bill to the Council of Marches against Floyd in the nature of Debt upon an Escape and there was a Latin Declaration upon an Escape turned into English because that the Defendant being Sheriff of Canarvan suffered one against whom the Plaintiff had a Iudgement being taken by capias utlegat to escape To his damage of 40 l. And by the whole Court a prohibition was granted Although that by their Instructions they had power of personal actions under 50 l. For this is intended a meer personal action As debt detinue c. But Debt upon a Iudgement or debt upon an escape or upon the 2 E. 6. for not setting forth of tithes an action upon 8 H. 6. or any other action upon matter of Record or Statute In such cases they have not Iurisdiction And the Defendant there might have pleaded nul teil record and then he might have proceeded further But the misdemeanour here in permitting the party to escape might have been punished there by Information Gee against Egan GEe an Attorney of this Court brought an Action upon the Case against Egan and declares that he was an Attorney for many years late past and still is and that he had taken the Oath of an Attorney to do no fraud nor deceit in his Office as Attorney And that colloquio habito et moto inter one Rise Brother in Law to the Plaintiff and the Defendant concerning the Office of the Plaintiff as an Attorney and concerning a Bill of Costs and Expences by the Plaintiff in defence of a Cause prosecuted by one Treddiman in the Common Bench against the Defendant laid out and expended The Defendant 1 Augusti 4 Car. spoke those words to Rise Your Brother and Mr. Treddiman have cheated me of a great deal of mony c. by which the Plaintiff is in danger to lose his Office And it was moved after verdict for the Plaintiff in arrest of Iudgement by Ayliff Because that here is not any certainty in the Declaration that the words were spoken of the Plaintiff as Attorney And then they are not actionable For he does not shew at what time the speech was of him as Attorney Richardson upon reading of the Record said It was true that no time of the speech is shewen neither is it after the speech shewen upon whom he spoke those words Which might help it Neither is it said afterwards that is to say primo die but primo die Augusti he spoke c. And if it can be intended that those words were spoken of the Plaintiff as Attorney That would inforce the words to bear an Action But if such words are generally spoken of an Attourney without speech of his Office they are not actionable For he may be a Cheater at dice or in a bagain c. And here non constat that the words were spoken of the Plaintiff as Attourney Secondly it does not appear that the Plaintiff was was an Attorney in the Cause but says
convict DEbt is brought upon an Obligation And the Defendant pleads that the Plaintiff is Recusant and convicted according to the Statute of 21 Iac. cap. 5. and demanded Iudgement of the Action The Plaintiff replies Nul tiel Record And a day was given to bring in the Record Crowley Justice demanded what course he would take to make the Record come in And said that the Indictment was before the Iustices of Peace And the Court said that the Defendant ought to have pleaded the Iudgement if he shall be answered For the disability is not but quousque c As of an excommunicate Person 8 E. 3. Crook Iustice If a Plea be in disability of the Person and be pleaded in Bar it is peremptory And so was the opinion of the Court. And the Debt of a Recusant is not forfeited to the King as in Outlary But if he fail of payment of the Penalty imposed by the Statute Then c. And the Court said that if Nul tiel Record be pleaded in Bar it is an Issue and Iudgement shall be given upon failer of it And the direction of the Court for the bringing in of the Record was That a certiorari should be directed out of that Court to the Iustices of Peace where the Indictment was taken For Presidents were alleged that that Court sent a Certiorari to the Iustices of Assise a fortiori to certifie that in the Exchequer and so come by times into that Court c. Creedlands Case CReedland Administrator durante minori aetate of a Son of his Brother and the Son died and made the Wife of Hindman his Executor who called Creedland to account in the Spiritual Court for the Goods And he pleads an Agréement betwéen him and Hindman and that he gave 80 l. in satisfaction of all Accounts But they did not accept the Plea For that a Prohibition was prayed to be granted Richardson If the party had received the mony in satisfaction for which there shall not be Prohibition granted but if there had béen only an agreement without payment of mony then otherwise Crook It is a spiritual matter and they having Iurisdiction for to determine of all things concerning that But the agreement prevents that it cannot come into the Spiritual Court c. Giles against Balam GIles libells against Balam before the High Commissioners for an assault made upon him being a spirituall Person And Atthowe prayed a Prohibition For that although their Commission by express words gives them power in that Case yet that Commission is granted upon the Statute of 1 Eliz. And it is not within the Statute although it be within the Commission yet they have not Iurisdiction The words of the Statute are That such Iurisdictions and Privileges c. as by any Ecclesiastical power have heretofore been or may be lawfully exercised for the visitation of Ecclesiastical Estate and Persons and for reformations of the same and for all manner of Errors Heresies Schismes Abuses Offences Contempts and Enormityes c. Those words extend only to men who stir up Dissentions in the Churrh as Schismaticks or new-fangled Men who offend in that kind Henden Sergeant The Sute is there for reformation of Manners and before that new amendment of the Commissions Prohibitions were granted if they meddled with Adultery or in Case of defamations But now by express words they have power of those matters And that matter is punishable by the Commissioners for two Causes First there is within the Act of Parliament by the words annexed all Iurisdictions Ecclesiastical c. Secondly It gives power to the Commissioners to exercise that And that is meerly Ecclesiastical being only pro reformatione morum c. The King by his Prerogative having Ecclesiastical Iurisdiction may grant Commissions to determine such things 5 Rep. Ecclesiastical Cases fol. 8. And Richardson said the Statute de Articulis Cleri gave Conusance to the Ordinary for laying violent hands on a Clerk But you affirm that all is given to the Commissioners And for that they should take all power from the Ordinary But by the Court The Commissioners cannot meddle for a stroke in Church-land nor pro substractione decimarum And yet they have express Authority by their Commission For by that course all the Ordinaries in England should be to no purpose And so upon much debate a Prohibition was granted On an Arrest on Christenmas day It was said by Richardson chief Iustice That upon arresting a man upon Christmas day going to Church in the Church-yard He who made the arrest may be censured in the Stat-chamber for such an Offence Quod nota It was also said by Richardson If a man submit himself out of the Diocess to any Sute that he can never have a Prohibition Because that the Sute was not according to the Statute 23 H. 8. commenced within the proper Diocess as it was adjudged Quod nota Manser against Lewes MAnser brought debt against Lewes the Bishop of Banger and had Iudgement and a fieri fac upon that to the Sheriff of Middlesex who returns That he was Clericus benefaciatus habens nullum Laicum feodum And Hitcham Sergeant to the King moved for direction of the Court what Process ought to issue or may have a Writ to the Metropolitan to make sequestration as it is 21 H. 6. 16 17. 34 H. 6. 29. Richardson said If you can satisfie us That the Sequestration ought to be against the Bishop as against a Clerk Then the Metropolitan shall do execution Hutton said A Bishop had Temporalties and for that the Sheriff ought not to return nollum habet Laicum feodum Richardson demanded whether the Statute of Westm the second which gives Elegit extends to the Temporalties of a Bishop Hutton not Harvey and Crook said That he ought to have first a Testatum est and then we may dispute of that But Hitcham doubted whether a Testatum est may issue to Wales Richardson an Elegit may issue and why not then a Testatum est And they in the Kings Bench grant it without doubt Stevens against the Bishop of Lincoln c. STevens and Crosse were Plaintiffs against the Bishop of Lincoln Holms Incumbent and Holsworth Defendents in a Quare impedit And the issue was where the Prochein avoydance It was given in evidence that a Feme was seized for life of the Advowson And he in reversion in Fee being an Infant grants the prochein avoydance And after when he in the remainder came to full age He reciting that grant concessit confirmavit praedictam advocationem habendam quando contigerit vacare And afterwards the Wife dies and the Church happens to be void And it was said by Davenport That that is not a new Grant but only a confirmation Crook Coo. lib. 6.14 Treports case Tenent for life and he in remainder makes a Lease if the Tenant for life dye the Declaration should be that he in the remainder made the Lease And so also by all
the Iustices it should be a confirmation during the life of the Feme If Iudgement be given in an action at Common law the Chancellor cannot alter or meddle with the Iudgement given against him But he may proceed against the Person for a corrupt conscience because he took advantage of the Law against his conscience quod nota c. William Watsons Case AN action of Battery was brought against William Watson for battery committed by him insimul cum I. Watson And Iudgment was given against him and dammages and levyed and payed to the Plaintiff And after in another Action which was brought against I. Watson and he also was found guilty And Diggs moved in arrest of Iudgement for that that he had recoveted and had execution against W. Watson But by the Court Where several actions are brought against two for the same battery and a recovery is had against the one and an action is brought against the other and that found also The Court can never intend that to be the same Battery Because he may commit 20 Batteries in one day But if he may take any advantage of the first recovery it ought to be shewed in pleading But if there be but one Original against both and several Declarations produced when he hath recovered he hath dammages against the other But if he recover against the other before he had execution against the first Then he had his election to have whether dammages given against the first or the dammages given against the other And Coo. lib. 11.56 Heydons Case by Richardson is to the same effect Eve against Wright Eve brought a Replevin against Wright who was known as Bayliff to the Lord Peters For that the Lord Peters had a Court Léet within the Mannor of Writtle And that he distreined for an amerciament upon the Plaintiff at that Court Leet of the Lord c. And upon issue that he had not such a Léet The Iurors found that the Lord Peters at the time when c. had a Leet within the Mannor and that the Tenants ought to come to his Léet But also they found that the Warden and Fellows of New College in Oxford had a Rectory also within the Mannor of Writtle called the Roman fee And that they time out of mind c. had a Léet within that Rectory and that the Plaintiff is a Resiant within the Roman fee But whether upon the whole matter the Lord Peters had a Leet upon all the Resiants within the Mannor of Writtle they prayed the discretion of the Court in that And it was said by Richardson That the matter is found expresly for the Lord Peters And if the Court séemed to be agréed then he assess'd dammages and that Verdict was clearly for the Defendant And if the matter in Law might well come in question as the Iurors intend scilicet whether a Person will be compellable to two Léets yet Iudgement shall be given for the Lord Peters For it might be a general Leet of the Hundred or a special Leet within a Mannor within the Hundred As it is expresly 21 E. 3.34 And the Case of the Countess of Northumberland and Devonshire was in this Court before this time agreed Crook Iustice 18 Iac. Banc. Reg. One Cooks and Sables Case there was agreed to this purpose Though a man is not compellable to be attendant to two Leets although they be held at several daies Yet by that Custom they may be attendant Like to Walgraves Case which was adjudged in this Court That a Mannor may be held by Copy of another And that the Lord of a Copyhold-Mannor may grant Copyhold And this Iudgement was affirmed good in the Kings Bench in a Writ of Error For Custome hath abolisht that And the opinion of the Court was That he cannot be attendant on two Leets if they be held at several daies It was said by Richardson That the Lord of the Roman fee shall not be Subject to the Leet of the Lord Peters As appears by 21 E. 3.33 And Crook said That that Book was good Law For there when the party is amerced in the one Court he cannot be punished in the other Court for the same offence And afterwards Richadson and the whole Court said That he himself shall be subject to another Court for his resiance or otherwise he should be exempt from every Leet Humbletons Case MOre of this you have before Now they afterwards come and the Case was recited in some thing different from the former scilicet That there being such a Communication as afore the consideration was That Palmer having now brought an Action against him he should defend the said Sute in maintenance of their Tytle of Common and that immediatly after Iudgement given he should pay him half his costs or 40 l. Vpon which this Assumpsit is brought And the Issue was Whether he defended the Sute in maintenance of their Title of Common and it was found against the Defendant And by the whole Court the Plaintiff had well declared the consideration For the words are that he maintain the Title against Palmer for the promise was after the acttion brought And the Plaintiff is not to prescribe what Plea hee 'll plead but that he defend that Sute And then when Palmer is not owner of the Soyle as appears in the evidence in the Kings Bench. And so if a pretence to common fail he should be punisht for a Trespass where he ought not Palmer being an Introcer upon the King And every Commoner may break the Common if it be inclosed Although he does not put cattel in immediately But he may infriender by the other Commoners or his Tenents and his Title of Common only excuses him of the Trespass And also the Iury had found that it was in maintenance of the Title of Common expresly And so Iudgement was entred for the Plaintiff pleno consensu Dorothy Owen against Owen Price DOrothy Owen brought an action of the Case against Owen Price upon a trover of Conversion of one Load of Wheat and one other of Barley within the Rectory of Broody And upon not guilty the Iury found a special Verdict to this effect viz. Marmaduke Bishop of St. Davies seised of the Rectory of Broody and a Mannor parcell of the Bishoprick 3 August 27 El. makes a Lease of them being formerly demised to Anne-Davyes and the two Daughters P. and C. habendum a die datus for their lives successively viz. to A. and her Assigns for her life rendring the antient rent and afterwards the first of September 27 El. makes a Letter of Attorny to I. S. to enter in the Rectory and Mannor and there to deliver seisin secundam formam Cartae which he did accordingly The Lease is confirmed the Bishop dies and Wilburn his Successor accepts the rent of A. and without any entry makes a second Lease for two lives to the Defendant and he is translated Laude the next Successor before any acceptance makes another Lease for
the Replication cannot be taken by intendment and it cannot be amended For it is not vitium scriptoris nor is it so much as ipsa devastavit But if it had béen said that praedict Margery had Goods in her hands sexto Decembris et devastavit then it should have béen good Crook She said that she delivered Goods to another Administrator and then he replies that before that time devastavit It cannot be intended that any other Devastavit but the Wife And Hutton said that that séemed to him to be good But Yelverton replyed that it did not séem to him to be good and it cannot be intended Margery The Replication is the Title of the Plaintiff As upon a scire facias without a precedent Iudgement For the Duty of the Plaintiff is when the Defendant had confessed himself to be subject to his Charge one time As in debt upon Arbitrement and the other pleads no arbitrament made And in point of arbitrement to pay mony It is not sufficient for the Plaintiff to say That the mony was not paid at the day But he ought to affirm that the Defendant had paid it c. And so there also Margery is not named affirmatively in all the Replication For if her name had begun any sentence then she might be intended And although it be now after verdict yet the verdict will not help So it was adjourn'd for the present Robert Barret against Margaret Barret his Mother RObert Barret brought an action of debt against his Mother for an Obligation made to him the Condition whereof was thus That she shall perform all that part of her Husbands Will that of her part is to be performed and observed concerning the Goods c. And that she shall use occupy and enjoy all the Lands and Tenements to her demised according to the true intent and meaning of the Will The Defendant recites the Will which was that her Husband gave her one Messuage and Land for her life Excepting all the Timber Trees and Wood. And further will'd That she make no waste nor estrepment in the Houses Lands or Timber-trees nor her Assigns nor any other for her And further will'd That if she shall happen to do any such waste That then she shall pay to Robert Barret the double value of that to which the waste shall come or amount unto Being indifferently valued by two chosen by themselves And furthermore he willed That there ought to be forty load of Wood per annum taken for fewel upon the Land demised of such Trées which have been used to be lopped for 30 years before And so she pleaded that she performed the Covenant in all c. And the Plaintiff replies that the Defendant had decouped a Grove of Wood containing by estimation one moyety of an acre and 6 Elmes and 20 Beeches and Sallows and Maples and Thorns being of the age of 33 years Whereupon the Defendant demurred But Atthow argued for the Defendant and he said That there is not any breach of the Obligation alleged all Timber-trees are excepted And because when she cuts them there is no waste but a trespass to Robert And the Will is That she shall not do waste For if she had entred into other Lands and cut Trees out of the Lands of the demise that had not been a Forfeiture of the Obligation But it shall be objected That then that clause had been void if his intention shall not be construed of waste to be done in the Trees Then the second breach is not well assigned For the words are If she does waste that she pay the double value And then although that waste be done You ought to allege that she did not pay the double value for if she had paid it her Obligation is saved But Hitcham the Kings Sergeant on the contrary The breach is well assigned The Case rests upon the words of the Obligation and the intention of the Will and then the Intention will appear That she cannot commit waste in the Trees although it be excepted And I conceive it is within the words for it is that she occupy and enjoy the Lands demised as aforesaid Now if I grant my Land I ought to demise my Trees also And if I be obliged not to commit Estrepment in my Land If I pull down a House it is a forfeiture of the Obligation For if Tenent at will pulls down no waste lies against him But he shall be punisht by an action of the Case for it is destruction and waste at the Common law In any of the Houses Lands or Timber trees And what Timber trees may be meant But those are excepted when all are excepted Dyer 323. Pl. 29. After the Statute of 23 H. 8. Nothing was left in the Feoffees al use One would stand seised with his Feoffees to the use of I. S. And adjudged that that is a good demise of the Land Ed. 6. conveys the Manor of Framingham in fee farm and afterwards grants the Fee farm and the Grantee demises his Mannor of Framingham the Fée farm passed for that that it was usually called by that name And Thorntons Case 3 El. He gives all his Land that he purchased of I. S. And he did not purchase any of I. S. but I. S had conveyed it to I. D. of whom he had purchased And adjudged good Sir Edward Cleeres Case Co. lib. 6. 17. So there it ought to be of such waste as he in his apprehension esteemed to be waste But it may be objected that she did not pay the double value But I conceive That if you will that that be paid yet the Will is broken For if you will by one clause that she commits not waste and by another if she do that she pays the double value and she does not pay it she breaks two clauses That ought to be pleaded by you If the Statute prohibit a thing and if he offend against it that he shall pay c. I say that he may be indicted upon the very Prohibition So that you would shew this in excuse of Waste But I conceive that it is not excused upon the Statute of H 6. Richardson chief Iustice All the Obligation goes to the intention of the Will which may be collected by circumstances out of the Will And then the sir Elmes are meerly the others not the Sallows Maples Beeches and Thorns by which the intention is broken Now the Law will not allow that to be waste which is not any ways prejudicial to the Inheritance So when the Husband said she shall not commit waste It was not his intention to restrain her from that which the Law allows Thorns in some Counties are adjudged waste where Trees are scant But a Grove ordinarily is Vnder-wood And then if she committed waste the Husband took upon him to impose the penalty And although that she enter into an Obligation yet it is that she is restrained by the Will of her Husband and he intended it for a
seisin Et si vous alleadger ceo uncore nest traversable mes avowry do et ee sur le matter Et Incroachment ne avoyer issuit lou measnalty nest conveigh forsque al surplusage seisin nest traverseable Incroachment ne noier Et pur ceo est hors de 32 H. 8. Et ceo ne scavoy Cases lou de rent seck est distrainable de commrn droit seisin Poet ee traverse si foret alleadge Et si ascun puist ee monstre jeo ne doubt mes ceo voet ee alleadge per ascuns des freres come rent sur partition attend sur le terte c. issuit cest rent seck que est sane per cest Stattute ala one le mannor et est parcel de ceo come 21 As 23. rent seck est parcell est mannor ou auterment le defendant ad Title al ceo c. Objection est que est cy veiel que le comencement de ceo ne Poet ee conus et est nul fait de cest rent Et coment ne doies alleadge seisin de ceo in Avowry uncore jeo poy monstre que navera seisin deins 40 anns c. Respons est que cest rent comence dee rent seck per primo Ed. 6. cest Stattunte avoit mesme le force a preserver cest rent hors de 32 H. 8. come un fait ou record ad e'e Et le Stattute al rent est sicome le prophette que raise de mort le fitts dl widdow done vie al lui de fitts fait in vie devant mes uncore bien Poet ee dit que le prophet done vie al lui issuit cest rent fuit occide per les premises del Stattute per 1 E. 6. le saueing sa it ceo un in vie que est le al me de cest rent Et pur ceo ceit saluo do et ee monstre in avowry pur cest donque 7 E. 4. 27 29. E. 44. St le comencement del Suory Poet ee monstre ne do et ee alleadger seisin issuit de rent et coment que jeo doye in mon Avowry monstre que la fait ou rent service devant cest Stattute uncore ceo doye rely sur le saueing de cest Stattute 35 H. 6. 3 4. 22 H. 6.3 Avowry 73. Si Suor confirme a tener per meinder services si soiet recite in Avowry est sufficient sans seisin nul inchroachment pius tiel Confirmation noyer donque est un fait original ou un confirmation sur in case dee hors de ceo Stattute de 32 H. 8 issuit voile le Stattute de primo E. 6. Crook ad agree si le saueing ad ee particular de 18 al Suor Windsor que est que cest case nest deins 32. donque averment fait ceo cy certain Et si le saueiug est ee al le Suor Windsor All rents by which the Land is held of him donque avoit est bone et hors de 32 H. 8. Objection est icy est generall que nihil certi implicat c. mes certum est quod certum reddi potest come les cases mise cite per Hutton quel jeo conceave auxi sur le matter al primes le Roy graunt easdem Libertates que S. avoit Poet ee fait certain per averment que S. ad tiels Liberties c. Objection 32 H. 8. do et ee prise liberallmentâ—… Voier que all Avowries Conusances mes le Stattute est de petit faire car si replevin soiet convert al trespasse est hors de de cest Stattute 10 H. 6. 1. Long 5 E. 4. 87. Et in trespass poier traverse le tenure non solement le seisin hors dl Avowry in que le Avowant est Actor c. Objection 32 H. 8. suit sait pur le repose quiet des homes c. Respons solement in Actions deins cest Stattute in eux le Stattute avera liberall Construction que urors ne serra inveigle quel daunger cest icy pur ceo que le Stattute fait Title ee Accounter est nul mischief car poies traverse le tenure ou seisin devant le Stattute de primo E. 6. c. Mes adee dit que Stewards books Courts Rolls ou Bailiffs accounts poieat ee monstre port eins pur Title al rents extinct per leases ou c. uncore jeo die que ceux matters doient ee laise al Iury tiels choses in eux mesmes sout bone Evidences nous veiennus 7 Rep. Farmors Case que le stattute de Fines est avoid per fraud agreement des parties ad ee confesse poiet toller Le Case hors de 32 H. 8. come release Executrix of Henry Hassel IOne Hassel makes a Lease to H. Rassel of 3 Closes for 20 years if he should so long live Henry Hassel dies and debt is brought against his Executor for rent reserved upon that Lease who pleads that before the day of payment he assigned two of the Closes to a Stranger And upon demurrer Iudgement was given for the Plaintiff For if there had been an assignment of Henry If he did not give notice to the Lessor in acceptance of the rent he shall be charged Quod nota Iudgement in Debt IF Iudgement be given in debt and a Scire facias brought against the Executor who pleads ne unque Executor ne unque Administrator c. And it was found against him yet it was agreed by the Court that the Execution shall be de bonis Testatoris tantum For that that the Execution shall have relation to the Iudgement And the Scire facias is to make known that they had not Execution upon the first Iudgment which extends to the goods only of the Testator And so it was said by Moyle Prothonotary that it was rul'd in 5 lac in this Court If a Iudgement be given in Debt and the mony is paid to the Attorney of the Plaintiff Although that the mony miscarry with the Attorny yet the payment is good But if a Scrivener is imployed generally to put mony to use for a year and the mony is paid to the Scribener who breaks or does not pay the mony The payment does not excuse the party But if he receives it by special Command c. that is a good cause of Equity In Avowry IN an Avowry for Dammages feasant the verdict is found for the Avowant And a Returno habend granted for the Cattell and a Capias ad satisfaciendum for the Costs and Dammages are payed The Sheriff cannot execute the Returno habendo But if it be executed and Costs afterwards paid upon the Returno habendo A Writ De si constare poterit shall issue to the Sheriff for delivering the Cattel upon a surmise and payment of the costs c. A Prohibition DAvenport moved for a Prohibition for that that an Executor who resided within the Tower which is a peculiar Iurisdiction as it was surmised was sued in the Prerogative Court
impedit was brought by King Iames and Demurrer joyned then and after they demised to the King whereof the Court was not before informed Wherefore although that for the matter they then shew'd their opinions Yet they were all resolved That the Quare impedit ought to abate And that Brownlowe chief Prothonotary had shewed them a Resolution in King Iames's time in this Court by all the Iudges to this purpose and the difference of the Information For after the Demise to the King the information stood As it is so it cannot be aided by the Kings Court Nor is it within that Statute of 1 E. 6. 7. For that Statute is betwéen party and party In debt for Recusancy where another brought an action in Right of the Crown Iacob against Iacob IN Debt The Issue was Whether the mony was paid or not And the venue was laid of the Parish of Ipswich and the return of the Sheriff was of Woolbridge And Hitcham said That there is not any venue And the Defendant upon the Statute if there be any tryall if any part of the venue be laid in the Tryal is ayded But if there be not any part laid then he is not ayded Richardson said If an action of Debt be brought of Trespass done at Dale where not guilty being pleaded the visue is de vicenet de Dale and the return is de Dale That is not good Hiâ—…cham Sergeant affirmed that it was Richardson and Hutton also agreed Nomina Iurata to be good And then what Action soever the Sheriff doth is not material and the Writ is right Hitcham I confess for any man collaterally to inform that there is not any thing of Ipswich shall not be allowed But so it appears to us upon the Record Richardson it may be intended That Woolbridge is de vicenet de Ipswich And adjourned But afterwards it appeared That the Venire fac was of Woolbridge And then all agreed that it was naught And a new Venire fac ought to issue c. Swintons Case SWinton assigns Debt upon an Obligation to another who sues in his name and declares upon an Ohligation of 70 l. And the Defendant pleads non est factum And a special verdict was found That the Defendant was bound to Swinton per quoddam scriptum Obligatorium gerens dat eisdem die anno As the Obligation upon which the Declaration was cujus tenor sequitur in haec verba c. And the Obligation was in 70 l. and that that is the same Obligation which was given in evidence But whether that is the same as it should be which they declare Juratores penitus ignorant c. Davenport for the Defendant prays Iudgment alleges that the Verdict is per quoddam And therfore it cannot be intended to be the same obligation upon which he declar'd For then it ought to be praedict But Hutton and Yelverton thought the Verdict to be good For they found the same date c. But your Question to us is Whether that Variance makes pluralities of Bonds But for the matter of Variance Davenport thought that it is material In the Kings Bench it was one Parryes Case in an Obligation of 500 l. There it was quimpe pro quinque And adjudged to be naught Richardson I confess the Case in H. 6. where it is Wiginti for Viginti and yet good For there is some colour of likeness But if the word be no latine word So that nothing can be known what was intended it is otherwise So one Randalls Case One was bound by these words in quatuor centum libris Whereupon it was doubted Whether it was to be intended 400 l. or 104 l. And it was adjudged naught Vpon which it seemed to be naught here And so seemed Hutton and Yelverton being only present Gammon against Malbarn IN an Assumpsit to pay 34 l. which accrew'd upon several promises First he surmised that one was indebted to him in 12 l. And that he would trust him more The Defendant came and prayed him to trust him and if he would he would pay him the old debt And whatsoever he should be in arrear more if it did not exceed 100 l. he would pay and shews how he afterwards sold to him divers pieces of Flesh at reasonable prices And that he lent him 3 l. which he promised to pay And then he came and requested him to pay the whole 34 l. But he would not pay the 19 l. for the price of Flesh nor the 12 l. c. Henden moved in arrest of Iudgment non Assumpsit being pleaded and found for the Plaintiff because that he does not allege before That the Flesh that he sold amounted to the price of 19 l. And Secondly because that he makes but one Request for the several Debts where it ought to have been several c. Hutton and Yelverton thought all good For the first Because that he refused to pay the 19 l. pro pretio c. But it had been better if he had alleged That the Flesh amounted to such a price But for the Demand that it was sufficiently made And adjourned c. Benson against Sankeridge IN an Assumpsit upon an Insimul computaverint The Plaintiff declares That he accounted for divers sums of mony to him due And that the Defendant was found in arrear as much as he assumed to pay And does not express for what the sums were due And by Richardson therfore naught For such an account for debt upon an Obligation in specialty it is void c. Hutton If he declared That the Defendant being indebted in diversis denariorum summis assumed it is void without shewing for what But here the action is grounded upon the Account Richardson It ought to be expressed in general the debts were for Wares sold c. But otherwise if the Account was for debt upon an Obligation or specialty he recovers double For the specialty remains notwithstanding the recovery in the Assumpsit Hutton We cannot think that it is for any thing but such things which lye in account Which Harvey agreed But the Court commanded to search Presidents Holford against Gibbes HOlford brought an Action upon the Case against Gibbes and his wife who was Administratrix upon a promise of the Intestate which appears in the Declaration that it was 16 years since the promise made And Sir Thomas Crew prayed to be discharged of the Declaration upon the Statute of 21 Iac. cap. 16. But the Court would not discharge him without pleading or demurrer But it was agreed That if upon the shewing of the Plaintiff himself the Action appears to be out of the Statute of Limitations Then the Defendant ought to plead the Statute And he shall be aided by the averment Richardson If the Defendant pleads non Assumpsit and the verdict finds that the Action grew out of the time of Limitation whether it shall be ayded by a special Verdict Crook said Yea But Yelverton seemd not For it is not pertaining to
of the Demand cannot be made parcel of the Issue 31 Eliz. rot 1137. Com. Banc. Dennis Varneys Case There the Book was agreed If it be to be demanded generally it may be at any time if it be tunc petit otherwise For otherwise it would be a Rent-charge at one time and a Rent-seck at another And the Distress it self is the Demand As it is in Lucas Case If one be obliged to pay mony upon Demand The Action brought is a sufficient demand And Barkley Sergeant He shews in the Avowry that such a one was seised of 20 acres and grants a Rent out of them and others by the name of all his Lands in Rustock and Ollerton For that he said that Ollerton is not charged Because that it is not pleaded that he was seised of that But the whole Court on the contrary And that it is an usual manner of pleading And that it shall be intended that he was seised of Ollerton First the words are per scriptum c. he granted a Rent and then he pleads that per scriptum suum he gave a power to distreyn And then it shall be taken that it was not made by any other Deed and the Distress given by the second Deed shall not make the Rent a Rent-charge And he cited Buts Case Then if it be a Rent-seck and the Distress gives a nomine paenoe There ought to be an actual Demand and that upon the day as it appears by Maunds Case And Pilkintons Case 5 Rep. 5 Eliz. Dyer If it was a Rent-charge the Distress it self serves for a Demand As it was many times adjudged Secondly The words are If the Rent be in arrear any day of payment or 14 daies after The last instant of the 14th day is the legal time for demand of it And the words existent legitime petit ought to refer to the daies expressed immediately before As 39 H. 6. A man obliges that his Feoffees shall do such an Act si quisuerunt Those words shall have reference to the Feoffées And Dockwrays Case If a Man be obliged that his Children which he now hath so also existent Being words of the Present tence refer to the days now mentioned and otherwise there would be a great inconvenience For it cannot be intended the same tenant to be alwaies upon the Land Barrows Case 20 Eliz. A Feoffment upon Condition to re-enfeoff upon demand at such a place It cannot be demanded without notice to the Feossée For that that he shall not be compelled to be there alwaies expecting And the same inconvenience alwaies would follow If the demand should not be upon the day of payment by which c. Richardson If the Rent had béen granted out of 20 acres in Rustock and then he had granted by another Déed that he should destreyn in other Lands being in the same County or not and is the same That that is but a Rent-seck 10 Assise 21 Ass And the Distress is not but a penalty And if that Rent is granted by one Deed and the distress upon the Land by another Deed If it be not delivered at the same time then there shall be a Rent-charge and there shall be also a Rent-seck And when also it is said that ulterius he grants per scriptum suum and does not say praedict It shall be intended another Deed then without averment that it was delivered at the same time It shall be intended at another time But admit that it be a Rent-charge and that it issue out of Ollerton where the demand of it was Yet he ought to maintain that actually In Maunds Case The distress is a sufficient demand For it is not but to inable him to destreyn and that is where the demand is limitted generally But if a Rent be granted and if it be demanded of the person of the Gruntor he may destreyn Then there may be an actual demand that was adjudged As in the Court 15 Jac. Com. Banc. Iackson and Langfords Case and in one Armerys Case And in another upon the same point So if you will grant a Rent-charge demandable at a special and particular place If it was at another place than the Land charged Without doubt there ought to be an actual demand So if it be upon a special place from the Land charged or demanded for the distress ought to be pursued as the Grant is And that is upon such a demand But where it is restrained by the words of the Grant And the same Law is where you will limit the time of the demand If the Rent be granted payable at such a day and grants over that ad tunc being demanded there a legal and general demand will not serve But there ought to be an actual demand And also it is as much although not in express words for the sence and meaning carries it If it be arrear at such a day existent petit The demand ought to be at the day mentioned before If I be bound in Obligation the Condition to pay mony at such a day being demanded There ought to be a demand at the day of payment or there shall not be a forfeiture And now then there is not a demand at the time so no cause of distress And although the Verdict be found if it be collateral matter yet it will not help For when it appears upon the whole matter that there is not any Title to distreyn the Tryall will not help it And so Iudgement shall be given for the Plaintiff Hutton Harvy and Yelverton agreed That if it was a Rent-seck and the distress a penalty there ought to be an actuall demand at the time limited But in case of a Rent-charge although the demand is limited to be made upon parcell Yet they all held that a generall demand will serve And that shall be at any place at any time For Harvey said There is no oddes whether it is limited to be demanded generally or to be demanded upon Dale If it be material it ought to be observed in the one Case as well as in the other Stanleys Case IN one Stanleys Case in an Action of Battery Sir Thomas Crew moved for mitigating the dammages Where the Iudgement was given upon a non sum informatus and afterwards a Writ of enquiry of dammages But the Court said That in such Cases they never will alter the dammages And Crook said that he was once of Councel in an Action of Trespass pedibus ambulando in the Kings Bench in such a Case upon a Writ of enquiry of dammages 10 l. was given That he could never have a mitigation by the Court c. Outlary NOte it was said That an Outlary in the same term for error may be reversed in the Common Bench Or in any term if it be void upon any Statute As for want of Proclamations c. And an Outlary was reversed for that the Writ was praecipimus tibi where it should have been vobis to the Sheriffs of London
up a Chamber but that was the knavery of the Inne-keeper he being then in contention with an Inn-keeper in the Parish and that in divine service he thrust open the door of Wrights seat and said that he and his wife would sit there in disturbance of divine service And for that a prohibition was prayed and granted for the high Commission cannot punish non-residency nor breaking the seat in divine service And the other were things for which he shall be bound to his good behaviour and the complaint ought to be to the Ordinary c. Hall and Blundells Case before DAvenport said This Parson being presented by Simony is disabled to this Church for ever and cannot he presented to this Church again although another avoidance As it was adjudged in the Lord Windsors case But it was said by Richardson if he had said absque hoc that he was in ex praesentatione of Sir George it had béen good Which was granted Henden Two exceptions had béen taken First that the Incumbent does not shew what estate or interest the King had to present him which does not need if the King brought a Quare impedit then it is a good answer to say That he is in of his presenting But if it be brought by a Stranger then he ought to shew the title in his presentment And he alleged the Statute of 25 E. 3. Which inables the Incumbent to plead by writ of the Law 41 Eliz. There was a Quare Impedit brought for the Church of Danel A presentation was pleaded by the King without making a title and it was admitted good And in many cases it is more safe not to make a title Secondly Because that he pleaded a presentation by the King he is disabled As to that he said that before he be convicted of Symony he may be presented But by Crook in Sathers Case That if he be presented before conviction yet it is a void presentment And it was so agréed by the Court and they resolved the plea was naught because he enswers nothing to the Symony for the protestation is not any Answer Wherefore judgement was given for the Plaintiff Denne against Burrough DEnne against Burrough alias Spark in a prohibition it was agréed by Yelverton and Crook the other Iustices being absent If a man makes his will and makes his wife Executrix and devises the residue of his goods after debts and legacies payed to his Executrix His wife dies before probate that now because that the Executor had election to have them and dies before he did so All the Goods belong to the Administrator of the first Testator But otherwise by Henden If there was a Legacy of a particular thing Quaere what difference Newton against Sutton RIchard Newton and Iames Elliot against Sutton in debt upon an Obligation to perform Covenants in an Indenture There was a Covenant that the Defendant ought to do such an act thing or things as the Plaintiff or his Council learned should devise for the better assurance of certain Lands by himself to the Plaintiff and said that a Counsellor advised him to have a Fine And upon the Declaration there was a Demurrer And upon the opening the Case Crook and Yelverton being only present agreed That it ought to have been pleaded that a writ of Covenant was shewn and the tender of the note of the Fine is not sufficient But the breaking of the Covenant ought to be laid after the Dedimus potestatem sued by the Plaintiff And upon their advise the action discontinued without costs Sacheverills Case before ATthowe said that the action lies For a Lease made by Tenant for life is a Lease derived out of all the Estates and not as a Lease made in Remainder But he who made the Lease had a Reversion in possibility of a Reversion and for that he might joyn with him who had the Inheritance in that Action 27 H. 8. Tenant for life and he in Reversion joyn in a Lease for life And Tenant for life the place wasted and he that had the inheritance the treble dammages And in this Case had but a possibility of the Reversion and yet for that possibility they joyn in waste And it is all one whether there is but a possibility of reversion or a reversion If Tenant for life and he in remainder in fee make a Lease for years they joyn in waste and the reversion does not hinder Because that the Lease is derived out of both And the Lessee shall make attendance first to one and then to the other 13 H. 7. 17. And if it be upon such a Lease or Covenant which is not collateral but goes with the Land the Tenant for life shall have the benefit of them during his life and the other after But if one makes a Lease for life rendring a Rent and grants the Reversion to one for life the Remainder to another in fee Where the lease issues out of the whole reversion Yet the division by reversion being by the party himself they shall joyn in an action 22 H. 6. 24 b. Tenant in fee makes a Lease for life and their grants the reversion to A. and B. and the Heirs of B Waste is committed and they joyn in waste And yet this Statute which comes to our Case is made after the Lease And in this case if he who had the Inheritance his Son and the Survivor should joyn in waste For the Law makes the division of the reversion If Baron seised in right of his wife and they joyn in a Lease for years or for life rendring a Rent the wife dies the Husband being intitled to be Tenant by the courtesie it is now his Lease and he shall have the Rent And the Book séems that he and the Heir shall have an Action of Waste For the Law makes that division If Tenant in fée makes a Lease for years and takes a wife and dies and the Feme recovers Dower That Lease is not dispunishable with the devision by the Act of Law and that Lease is derived out of all the Estates and it is all one as if they had all joyned Admitting that the words were that the said Henry had Authority to make Leases for lives And that that makes it as effectual and as good as if all had joyned Then it will be agreed that it is the Lease of all As if I give Authority to make a Lease of my Land It is my Lease and ought to be made in my name and so the Authority is good against all those And if the Covenants had not béen collateral Iacinth shall have benefit of them For although they are not parties to the Lease yet the Law makes them so And as they shall have those benefits which grow by the Reversion so they shall have the waste also It will be objected this Lease by Henry is derived out of the first Fine and the Conusees shall stand seised to that use I agree if it be meerly without
and Yelverton And a prohibition was granted Holmes against Chime before PResidents were shewn that such actions were brought scil Hill 3. Car. Elwin against Atkins and Hill 1. Car. Cophin against Cophin both in this Court. And Richardson said although the book makes a doubt of it yet his opinion was that the action would lie For it would be a miserable thing that all things should be shewed precisely And so Iudgement was given for the Plaintiff Port against Yates IN a replevin the case was The Defendant was known as Bayliff to Thomas Kett and the land was Copyhold land And 10 Maii. 3 Car. When it was granted by the Lord of the Mannor to the wife of Thomas Kett. The Plaintiff confesses that the Land is Copyhold land but that the Lord granted 1 Iacob to Robert Salter in Fée who had two daughters the wife of the Plaintiff and the wife of Thomas Kett and dyed seised and that the land descended to them upon which they demurred Berkely The first grant shews that the Defendant was in of all and the descent to the wife but for the moyety whereupon the grant of the whole is not traversed nor confessed and avoided And he cited Dyer 171. Pl. 8. to be the same case in effect and so ruled But Hutton Harvey and Crooke held what difference there was betwéen this case and the case in question Hutton the descent here which is pleaded makes the second grant void But by Richardson although that it be avoided Yet it is not confessed And afterwards for that that upon the whole truth of the matter disclosed It appears that a Copartener cannot distrein the lands of another damage feasant and the matter of form in pleading ought not to be regarded by the Iudges upon the Statute of 21 Eliz. cap. 5. Iudgement was given for the Plaintiff Cockett against Delayhay COcket brought an action upon the case in Bristow against Delahay for these words Cockett hath forged a deed and because of that came out of his own Country And the Defendant justifies that he did forge a Déed in Middlesex of lands in Hartfordshire without that that he spoke in Bristowe Richardson said that that plea was naught either with traverse or without the Traverse Whereupon Henden altered his plea scil That he forged a déed of those lands at South Mimms in Middlesex where the lands lie By vertue of which he justified the words at Bristowe Richardson It is a good plea for now the other can plead nothing but de injuria sua propria And then the tryal shall be in Middlesex And by Crooke if there be a Demurrer there shall be a writ of inquiry of damages issue to Bristowe Issue IF the issue be not made up it may be tryed by Proviso But if the Plaintiff neglect that there may be called a non-sute upon the roll for there it shall be discontinued quod nota Page against Tayler PAge brought an Action against Tayler as Receiver c. which was found against him c. And Iudgement was given that he accounted and before the Auditors he pleaded that before the Action brought there was an arbirement that he should pay to the Plaintiff 11 l. in satisfaction of all accounts and demands which he had performed And it was ruled by the whole Court that that was not a good plea in discharge before Auditors but a plea in bar of the account And by Crooke an accord with satisfaction may be pleaded in Bar not in discharge Which the Court seemed to agree And by Crooke If the Defendant had any other matter to shew on the Declaration before Auditors it might be shewn c. Richardson Although that the Arbitrament was made after the action brought it cannot now be pleaded but he ought to have his Andita querela Manninghams case In Manninghams case The doubt was this A condition of an obligation made to Manningham was that he should pay after his death to his Executors after his death 10 l. per annum to the use of the Children of Manningham And Manningham dyed and there was no Executor whether the payment should be to the Administrator and so the obligation forfeited Berkly said that it ought to be payed to the Administrator for an Executor includes an Administrator And this money is as assets if not to satisfie debts yet to perform this case which is illsgal 5 H. 7. 12. 26 H. 8. 7. And also if a man limit a thing to be done to his Executors that may be done to his Administrators So that the nominating of the Executor is not but an expresse intention to whom the money shall be paid viz. to him who presents his person And he compares that to the case of 46. E. 3. 18. A rent upon a condition reserved to the Executors goes to the Administrators 15 E. 4. 14. Dy. 309. Cranmers case Where it seemed that if a lease be made to one for life and after to his Executors for years that the Executors shall not have the term as assets 32. E. 3. A quid juris clamat Fitzharb A Lease for life to his Executors for years in remainder Lessee for life atturns saving the term which proves that the Executor had that as privy not as strangers And he cited Chapmans and Daltons case the principall So that the Infant and the Executors shall have the money in right of the testator and therefore it goes to the Administrator Secondly The Executor extends to an administrator 8. rep 135. there kindes of Executors and an Administrator is an Excecutor datinus 3 H. 6. An action is brought against divers executors by the Statute when some appears upon the distresse it answers that extends to an Administrator although the Statute names only Executors Thirdly It does not appear here that Manningham made not Executors for it may be that he made Executors and that they dyed intestate or before probate And he cited 18. H. 8. And Shelleyes case 1. rep and 33. Eliz. If Executors dye before probate It is in Law a dying intestate Richardson Here is but meer trust and as it hath been said It doth not appear whether he had made Executors or not For if he dye and makes Executors and they dye before probate or refuse he dyes ab intestato but not intestate Nor shall it be questioned if the obligation had been to pay to Manningham only or to him and his Executors But it goes to the administrators But because that he had specially put his Executor Whether he ought to have the forfeiture of the obligation or whether he ought to have the sum to be annually payed to the Administrator Berkley the letters of administration make mention that he dyed ab intestaro Atthow That is matter de hors but by the declaration it is clear that he dyed intestate And the action brought by Administrator who who had not any cause of action Secondly admitt that there was an Executor and the money payed to him that
is not assets For it is not the money of Manningham but taken by him to pay to another And Richardson said If the party had dyed intestate by the Common law the Administrator is Executor and all things that were to be performed by the Executor are to be performed by the Administrator There was an obligation to A. to pay to the Executors of B. It shall be more doubted there whether it shall be payed to the Administrator But the obligation here is to Manningham himself Now his Executors comprehend Administrators And Needhams case is plain in that And the mention was that the money shall be payed to these that succeed him in his personal Estate Now it was not the intent that it should be lost if he dyed without Executors Crook an action of debt being brought against an Executor upon an obligation plene administravit is pleaded Then Administrator being included in the word Executor there is a good cause of Action And the Court seemed to be of the same opinion Sed adjournatur Fowlers Case FOwler libels for tithes and a Prohibition was prayed upon a suggestion that he came to the Church by Symony By the Court a Prohibition ought to be granted upon a surmise only that he came to the Church by Symony Then Henden shewed That it was found by verdict in the Kings Bench That he came in by Symony And upon that verdict there was a decree in the Court of Wards accordingly And then the Court inclined to grant a Prohibition And the Case here was That Fowler being convicted of Symony the King presents Glapthorn who was admitted instituted and inducted And afterwards he takes another benefice above the value of 8 l. by which the other was void Yet by the assent of the Lord Windsor Patron Fowler continued possession And by Richardson He cannot be any way removed untill laps incurre Strange against Atthowe SIr Hamond Strange brought trespass against Christopher Atthowe And the trespass was done 8 years after but with a continuando unto the time limited by the Statute 21 Iac. And by Richardson the action is toll'd by the Statute For the continuation within the time makes the Trespass within the time And it is not like the Case in Dyer 119 pl. 17. In the turning of a Cock It was adjudged a new diversion for it was a new action But here is not a new act done Richardson the Statute of 21 Iac. may be well pleaded in this discharge of that action And you ought to commence for all not done after the time of the limitation within the Statute otherwise the Statute should be overthrowed For by that means the continando may punish a trespass done 20 years past with the alleging of a continuando Hutton Crook of the same opinion Yelverton on the contrary who said that it was not material if the Statute was overthrown But the other Iustices said it was a good Statute Crook Suppose that you cannot prove your continuando for in trespass it is not requisite indéed to prove it For it is only put for increase of damages But Hitcham said Now by the Statute the continuando shall be proved Then by Richardson Hutton and Crook You will make a fraction That the trespass shall be partly upon the Statute and partly upon the Common law It was ruled again according to that before That when a Will was proved in the Prerogative Court The Executor or Administrator may be cited out of â—…e Diocess where he lives to the Prerogative Court Because that the Will cannot be executed a libi than where it was proved And so that is out of the Statute of 23 H. 8. But by Richardson Hutton and Yelverton Where a Will is proved in the Prerogative Court That it shall be proved in the proper Diocess also of the Executor then it may be executed there Richardson said The privilege for them of the upper House continued 30 daies after the Session where the Parliament of the lower House but for 20 daies And that the privilege extended to Person Goods and Lands Nortons Case Mich. 4. Car. Com. Banc. IN Nortons Case before A Consultation was granted because of a Custome alleged and found for the party But by Crook and Yelverton There are divers Presidents where in that Case a Prohibition was granted without alleging a Custome Allen against Westby before IT was ruled That the Defendant shall not have costs against the Informer they being found against the Informer And Brownlow affirmed that the course of the Court is That upon the Statute the Defendant shall never have costs against the Informer Although Binge cited a President to the contrary Termino St. Mich. Anno 4 Car. Reg. Com. Banc. Gosse against Skipton IN the Court of Requests Gosse borrowed mony of the Testator of Skipton and gave a term whereof he was possessed for five years to him for security by Indenture with a Proviso of redemption And shews further in his Bill that there was a verbal Agréement between them That if the mony was not paid at the day the Testator should take the profits growing upon the Land And if the profits amounted to the value of the sum of mony that then he shall have his term a-again And that he reaped the profits accordingly which well satisfied him and yet he continued possession of the term Which afterwards came to Skipton and is now expired And so he prayed that the Defendant might account for the profits And the Defendant moved for a Prohibition Richardson Although the trust is contrary to the Indenture yet such an averment is good notwithstanding the Proviso But for that that the Executor shall account to none but the King and the years are now spent And although he occupied the same yet the profits shall be Assets And if it shal be received in the Court of Equity there shall be a Devastavit against the Executor And by the whole Court a Prohibition was granted Rolls against How A Man arrested upon a Latitat makes an Obligation to the Sheriff with a Condition to appear And the Question was if it be good For he may make his appearance by his Attorny Although Hutton thought it was not good For the Law intends that he is in person when he is in custodia Marescall And Brownlow said it was adjudged accordingly when Mr. Tomkins Bayliff of the liberty of St. Andrew took an Obligation in his own name for a personal appearance upon a Latitat At an other day Atthowe moved that the Bond was void For the Statute is general that he shall take a Bond for his appearance And now the Sheriff here had taken a Bond for his personal appearance And there he might answer to the Action by his Attorney But that he ought alwaies to be in custodia Marescal which is meant in proper person and he ought to put in bayl which is good enough It was ruled that Iudgement should be entred for the Plaintiff if cause
charged be to the value of 40 l. per an that will be a good condition and the Obligation shall be forfeit If the condition was that the Land was then of such a value it was presently a breach of the Condition The second matter was whether the breach was well assigned or not And Richards Yelvert held that the breach is not well assigned There are two things in the Covenant one of the Estate another of the value Here may be a breach to be assigned upon the Estate but then it ought to be general For the grant out of all his lands and tenements in Watchfield is not a conclusion to him who had lands and tenements in Watchfield then the Obligation is forfeited As if one be obliged to make a Feofment to I. S. of all his lands which he had by descent in D. If he had no lands there it is not a forfeiture So here But if the rent was granted out of particular land as out of the Mannor of D. There the grantor is included to say but that he was seised of the Mannor of D. which was granted As to this diversity the word praedictis had relation to lands and tenements in Watchfield for no lands were named But the material thing is the value c. And if praedict goes to all the Lands then the breach goes to more than the Covenant and then it is not met with But admit that it goes to all yet it is all one For the intention of the parties was that the value of 40 l. joynture per annum shall be mentioned But the Plaintiff does not mention the value And it is sure that the word praedict may goe to all the lands in Watchfield or to lands of 40 l. And if the Defendant had rejoyned he might have rejoyned generally scil That he was seised of lands in Watchfield in Fee simple and he is not forced to shew his particular estate in the lands And admitting they had gone to tryal upon that issue what might the Iurors find And if they had found the value it is nothing to the breach That is more than was in their charge and so void But Hutton and Harvey on the contrary and said that the breach is well assigned And Hutton took this difference That if the Covenant was that he was seised of such particular lands of such value The breach ought to be assigned in particular also but where it is that he was seised of lands of such a value the breach is now well assign'd here it is a recital of lands of the value of 40 l. per an to that predict has relation And it does not appear to us if he had more lands in Watchfield than of 40 l. per an But these things were agreed by all First that the antient pleading in the time of H. 6. is now changed and the general pleading of all Covenants in the Indenture in form although that the affirmative is good And the Plaintiff ought to shew the particular Covenant broken c. Secondly in the principal Case if the Plaintiff had replyed that he was not seised of lands and tenements in Watchfield in Fee-simple without praedict or deque fuit seise de nullis terris vel tenementis praedictis in Watchfield of the value of 40 l. in modo forma secundum formam conventionis is a good assignment of the breach And the Defendant forced to shew the particulars The Plaintiff discontinued the principal sute and begins again but that he might not doe without the license of the Court as they said Because that they might agree afterwards to give Iudgement Taylors Case TAylor was Plaintiff against Waterford in debt upon an Obligation and the Defendant demanded Oyer of the Condition quae legitur ei in haec verba If the Defendant should pay such costs as should be assist at the Assizes without shewing for what the Obligation should be void And the Plaintiff replies that post confectionem Obligationis Pasch .. 4 Car. Com. Banc. the aforesaid words were written upon the Obligation and the truth is that they were endorsed upon the Obligation by memorandum after the Delivery And Atthowe moved that the Plaintiff might not reply in that manner because that when Oyer of the condition was demanded that was entred for a condition and so was admitted by the Plaintiff And for that he is concluded to say the contrary But Serjeant Davenport replyed on the contrary And said first that the words of themselves will not make a condition It is Litletons case That some words doe not make a condition without a conclusion as what is contingent 39 H. 6. And admit that the words will make a condition yet they were written after delivery 3 H. 8. Kellways reports Hutton If there be an Obligation made of 20 l. if it be written upon the back of the Obligation before the sealing and delivery The intent of this Bond is to pay 10 l. for such costs That is no good condition Which Iustice Harvey only being present agreed And if any thing may be part of the condition it ought to be written before the sealing and delivery But it is no condition if it be written after And by them here is no conclusion but that the Plaintiff may plead that the words were written after sealing and delivery Termino Pasch Anno 5. Car. Regis Com. Banc. Mericke against King IN evidence to the Iury he who had purchased the land in question It was said by the Court he shall not be a witness if he claim under the same title Richardson said that the conveyance may be proved by other circumstances And the same reason was also agreed by the Court That if a Feoffment be made of a Mannor to uses that if the tenants have notice of the feoffment that although they have not notice of the particular uses their attornment to the Feoffees is good For the Feoffees have all the estate And Harvey said that so it was agreed in one Andernes's case Sir Richard Moors Case IT was said in evidence to the Iury. The case was that a man prescribes to have common in 100 acres and shews that he put his cattel in 3 acres without saying that those thrée acres are parcel of the 100 yet good And Hitcham said that so it was adjudged in this Court. And Richardson said it was an Huntingtonshire case Where a man alleged a custom to put his Horses c. And the custom was for Horses and Cows And adjudged good Hutton said there can be no exception to the Witness who is Cozen to the party to hinder his evidence in our law To which all agréed Clotworthy against Clotworthy THe case between Tenkely and Clotworthy was cited One grants an Annuity for him and his heirs to be paid annually at two usual feasts for 30 years which was to begin after the death of the grantor And it was agreed by all Richardson being absent that
them the word Iudas is material here for loquendum ut vulgus If he had said you have plaid the Iudas with your Clyent without doubt is actionable Which Richardson also agreed and said if one says of an Attorney that hes a false Attorney an action lies Sed adjournatur Hawes's Case IN Dower the Defendant pleads ne unque seise que dower It was found by the Iury that the Husband was seised and died seised and assess dammages to the Plaintiff generally And it was moved in arrest of Iudgment because that the Iurors did not enquire of the value of the land and then ultra valorem terrae tax dammages as much as is the usual course as the Prothonatories informed the Court. For the Statute of Merton gives dammages to the Wife scil valorem terrae And the Statute of Glouc. cap. 1. gives costs of sute But by the Court Iudgement was given for the Plaintiff although the dammages are given generally and certainly intended for the value of the Land And there might be in the Case a Writ of Error Hil. 5. Car. Com. Banc. Simcocks against Hussey SImcocks brought waste against Hussey for cutting 120 Oakes and the Iury upon nul wast pleaded found him guilty of cutting 20 in such a field and so sparsim in other fields which was returned upon the Postea but nothing said of the other 20. where in truth the Iury found him not guilty of them but the Clark of Assizes took no notice of that By the Court If the Clark had taken notice there might have been an amendment by them But here they gave direction to attend the Iudge of Assize to examine the truth of it And if they could procure the Clarks to certifie the residue they would beleeve it Dower DOwer was brought for the moiety of 45 acres of land and for part non tenure was pleaded which was found for the Plaintiff and for other part Ioyntenancy which was after imparlance Whereupon the Plaintiff demurred and Bramston prayed Iudgement and answered farther for that that it was after imparlance and cited one Doctor Waterhouses case in Dower where it was adjudged that non-tenure after imparlance was not a plea And by the same reason shall not joyntenancy be 32 H. 6. 29. And by the Court it was adjudged quod respondeat ouster But otherwise it would have been if there had been a special imparlance tam ad breve quam ad narrationem And it was prayed to have Iudgement upon the verdict And by the Court it was said that they should have Iudgement And that there might be two Iudgements in this action for the several parts of the land Sir Francis Worthly against Sir Thomas Savill HE brought an action against Sir Thomas Savill for batterie In which it was found for the Plaintiff in not guilty pleaded and 3100 l. damages was given Which verdict was last Term. And in this Term it was shewn to the Court that the Declaration entred upon the imparlance roll was without day moneth and year in which the battery was committed Which was observed by the Atturneys and Counsel of the other part and that a blank was left for it But afterwards in the time of this vacation in the night time the Key of the Treasury being privily obtained by a false message from Mr. Brownlow Prothonotary the record was amended and some things were interlined to make it agree with the Issue Roll which was perfect And these things were affirmed by severall affidavits Whereupon Atthowe moved that those parties privie to this practice might be punisht and that the record might be brought in Court and made in statu quo prius Crew on the other side demanded Iudgement for the Plaintiff for whether there is an imparlance Roll or no. If none then the matter is discontinued and that ayded by the Statute If you will have an Imparlance Roll then I think these omissions are amendable by the Clarkes although after verdict Harvey The Course of the Court is for I am not ashamed to declare that I was a Clark for 6 years in Brownlowes Office If the Declaration was with a blank and given to the Attourney of the other side if in the next term the Atturneys of both sides agrée upon the Issue Roll Vpon this agreement the Clark for the Plaintiff had always power to amend the Declaration Because that by the acceptance of the other side there was an assent Richardson The imparlance Roll is the original Roll and ground for the Issue Roll which is the Record of the Court And I agrée that it is reason to amend the nisi prius Roll. Harvey gave an excellent reason whereupon the Pregnotaries were demanded what was the course of the Court Brownlow Gulston and Moyle all agréed that the course is That an imparlance roll may be amended if no recordaâ—uâ— That if no recordatur or rule be to the contrary and a Declaration delivered with blanks the Clarks have always amended it And Brownlow shewed where the book of 4 E. 4. was objected to the contrary and he had séen the Record and there was a recordatur granted Richardson Debt is brought against one as heir and there is omitted ad quam quidem solutionem haeredes suas oblig shall that be amended And it was said by all the Pregnotaries it should And Moyle said that in 13 Iac. there was a case between Parker and Parker upon a trover and conversion and the Imparlance Roll was entred with a blank as here and upon non-guilty pleaded it was found for the Plaintiff and I fear it will be mended By the Court this difference will reconcile all the books scil where there is a recordatur and where not It was agreed by some one of the Iudges that a recordatur might be granted out of the Court. And so Brownlow cited a president Pas 4 E. 4. rot 94. to the same purpose And so Iudgement was given for the Plaintiff Starkeys Case before IVdge Yelverton now being in Court the Counsel of the Plaintiff prayed his opinion and shewed the reasons given before to have Iudgement And Yelverton said that the word Iudas here did not bear an action It was two of the Apostles names and the betrayer Iudas was a Traytor to Heaven and therefore this reason should not be drawn to earth to cause Actions between men But for the word common Barrettor being spoken of a common person is not actionable until conviction he is not punishable for it If he called him convicted Barrettor Convicted Barrettor to a common person is actionable it is actionable But being spoken of an Atturney or an Officer of Iustice it is actionable Littleton tells us what they are they are meant stirrers up of unjust sutes which is a grand offence in an Atturney And they put the case of Sir Miles Fleetwood One called him the Kings Deceiver which was adjudged actionable and that it ought to be understood of his Office And for that in
day a procedendo in this case was granted Sir William Cave against Sir William Fleetwood IN debt the Plaintiff had judgement Hill 5 Car. Com. Banc. and a cap. ad satisfac was awarded against the Defendant upon which he was outlawed And Crawley moved that the Plaintiff might have an Elegit and cited 21 H. 7. 19. There are but four manners of Execution Two by the Common law levari and fieri fac And two by the Statute elegit and capias and none of them is a barre to the other unlesse there be satisfaction of it A fieri fac is no barre to the cap. although part of the Debt be satisfied 22 Ass 47. E. 3. Exec. 41. If the party pray execution of the body and had it then he shall not have resort to a new Execution For if the Defendant die in prison it is adjudged in Bloomfields case that the Plaintiff shall have an Elegit which proves that it is the satisfaction the Law looks upon and respects A fieri fac is no barre to the capias although part of the debt be levied by fieri fac and a capias may issue after Secondly the processe is determined by the Outlawry although it be after Iudgement And for that the Plaintiff resorts to his satisfactory execution again 17 E. 4. 4. Execution by Statute does not oust execution by the Common law no more than the execution by one Statute ousts the execution by another Hutton Iustice If upon an Elegit brought it be executed he can never have an execution And if a man be taken upon a capias the party now may have another execution but the outlawry here determines the process and then the Plaintiff by scire fac revives the Iudgement again and he may resort to which process he will If a man had a Iudgement and taken a capias and done nothing upon it but died the Executor is not bound by that But after a scire facias he may have an Elegit or what other execution he will Hudson and Lees case Common Bench The Plaintiff took an Elegit but because he could not upon the Inquisition find sufficient to satisfie he resorted to a capias And it was agréed that he might for that that the Elegit was not awarded upon Record But if an Elegit be awarded by the Roll and so shall be recorded the Plaintiff ought to proceed upon that But the course is not to award it upon the Roll and he said that Bloomfields case is not Law For if the party die in execution by Elegit by capias the Plaintiff had his execution and might not have any execution again And so it was adjudged in Iacksons Case in this Coutt And the making of the Statute of 21 â—…ac shews that so the Law was taken Wollaston Dixye against the Bailiffs and Burgesses of Derby IN a quare impedit the Plaintiff declares that Iustice Beamont was seised in Fée of the Advowson of St. Peters in Derby and presented his Clerk to it who was instituted and inducted c. and dies and that the Advowson descended to H. Beamont his son and heir and he died and the Advowson descended to Barbara his daughter and heir and that she being seised in fée and under the age of 21 years the Church became void and Barbara her Mother who had not any right of presenting presents her Clerk who was instituted and inducted and admitted to it And Barbara the Daughter took the Plaintiff to Husband and became of full age and then the Church became void And because the Bayliffs and Burgesses presented and the Church so full within the six months the husband alone brought that action upon which there was a demurrer Davenport said the action did not lie for the husband alone but the wife ought to joyn with him For that usurpation upon the Infant which he had by descent by the Statute of West the 2d does not turn the Infant to his writ of right Yet the Vsurper gets the inheritance and turns his estate to a right And for that he cited Cook 6. 50. Boswells case and 16. E. 3. there cited Where one seised of a Mannor with an advowson appendant dies his heir within age who suffers an usurpation and then grants the Mannor Resolved that the advowson does not passe because that the heir had but a right in the advowson after the usurpation So in our case the wife had but a title of action and than the wife ought to join As where an obligation is made to a woman who takes a husband the wife ought to joyn with the husband in the action upon the obligation But Henden said that the Husband only might have an action If a feme covert be seised of an advowson in fee and the Church void the Husband only may have an action without question Which was granted by the Court. Then here the wife being of full age before the avoidance now the feme being in possession of the Advowson again to all intents and purposes And for that by the exposition of the Statute of Westminster the force of the usurpation being upon the Infant who had it by descent continued but during the incumbency and non-age of the Infant And it was said by Richardson That the Infant at full age might present and so regain the possession without action at the Common Law by usurpation she was turned to her writ of Right And if it was a purchase he was without remedy Now I demand in this case If there be a death during the avoidance whether the Executor shall have it or the Husband upon tenant by Courtesie And he cited the Lord Stanhops Case which was That the Abbot of the Monastery of Shelford was seised of the advowson in gross and there was an usurpation in the time of the Abbot And then came the Statute of dissolutions which gave a right and title to the King So that that which was in the Abbot was now in the King Afterwards the King grants that Advowson by a general grant without recital of the case And adjudged a good grant But by Hutton Warberton and Winch Iustices were of the contrary opinion to Hubbard But that was because that there are words in the Statute that the Subject shall have all the King had which was to induce purchasers Hutton If it might appear that the Plaintiff scil the Husband presented before the Vsurpation and was disturbed that perhaps would have been a claim and so a remitter For at the Common Law the remedy for an Infant was to present and upon admission and Institution c. of his Clerk he should be remitted or might have a Writ of right if he pleased But by the Court the husband only in this case might have presented And then upon disturbance he only shall have the action But here the Church was full before the presentation Henden said the intention of the Statute was to give to the Infant at full age
put off till the next day by nine in the morning Collins against Thoroughgood AN action of Covenant was brought against the Executor and the breach assigned for default of reparation committed in the time of the Executor and damages were assessed And the question was moved by Atthow whether the Iudgement shall be de bonis propriis or de bonis Testatoris And upon view of presidents it was adjudged that it shall be de bonis Testatoris For this is the Testators Covenant and obliges the Executor as representing him And therefore he ought to be sued by that name Waters against Thomson IN an action of slander for calling him Bankrupt Iudgement was given for the Plaintiff And it was afterwards moved in arrest of Iudgement Because that in the Declaration it is said that he was a seller of Wool And Serjeant Ward said because he did not allege that he was a Merchant that it would not hold But the Court over-ruled him Tomkin's Case A Man cannot plead a former Iudgement had against the Plaintiff in an action brought by the Plaintiff against the Defendant But Outlawry he may Which was not denyed Baker against Webberly THat if a mans Dog runs at the Sheep and kills them not with his consent there will no action lie But otherwise if with his consent Recovereis suffer per gardens of the lands of the Infant MEmorandum That the 26 Decemb. 21 Iac. that letters under the privy signet and sign Mannual came unto the Iudges of the Com-Pleas importing that the King had been humbly petitioned by Mountioy Blunt being under the age of 21 yoars as well by himself as his kinred and Feoffees into whose custody the late deceased Earl of Devonshire did commit his estate in trust that he would declare unto us his liking that he might be permitted to suffer a Common recovery of the Mannor of Wansled for payment of his debts and further advancement of his means to the use of the Duke of Buckingham which his Majestie by his said Letter did accordingly Now although the Iudges did never hold such Recoveries unlawfull or void in Law yet divers motions in the like kind have been refused as holding it very inconvenient But inconveniencies are best discerned by circumstances and therfore my L. Chief Iustice Richardson acquainting the other Iustices therewith it was determined that he should send for the young Gentleman and examine him sole and secret of the reasons of this Recovery and of his own free-will Which I did and being of 18 years of age or thereabouts suffered me of his own good liking that he did conceive it to be necessary for his estate yet not therwith contented the Chief Iustice caused the Earl of Southampton the L. Davers and Mr. Wakeman the persons to whom the world knew he his Estate was committed in trust and that they had worthily performed and calling them in an open Court and questioning with them they confessed to us all that it was necessary for the young Gentleman and for his good to part with this thing and that therefore they had made means to his Majesty for this Letter in that behalf whereupon the Recovery was passed openly at the Bar the last day of Michaelmas Term against Mr. Blunt in person and the Earl of Southampton the Lord Daverâ—… and Mr. Wakeman were admitted his Guardians Brownlow and Moyle Prothonotaries shewed Presidents of the like Recoveries against Infants M. 23 H. 8. rot 441. et P. 38 H. 8 rot 128. Tr. 28 El. rot 17 et M. 26 et 27 El. rot 45. 572 P. 42 Eliz. rot 1. 5. 63 44. 45 69 70 89 91 94 P. 32 El. rot 60 T. 38 El. rot 41 44 40 El. rot 62. 124 112 M. 40 et 41 El. rot 13 M. 34 et 35 El. rot 166. per Zouch M. 39 40 Eliz. rot 82. 173. M. 41 42 El. rot 24. 106. et 72 T. 42. El. rot 20. M. 42 et 43 El. rot 173. Chamberlines Case HE brought an Action upon the Statute of Hue and Cry and after Issue joyned and entred The Record was that the Robbery was done 30 Octob. It was ordered by the Court of Common Pleas that the Record shall be amended and made the 30th of September upon the Affidavit of the Attorney for the Plaintiff that he had given direction accordingly And shews to the Court the Book of the Office Male against Kett. HE brought an Action against Kett for these words Thou hast stollen my Corn out of my Barn and verdict was given for the Plaintiff And after verdict it was moved in arrest of Iudgement That perchance the Corn was not of the value of a penny Yet Iudgement was given for the Plaintiff For it is felony although it is not great Hitcham against Cason before NOw they urged 5 Eccles If thou see the oppression of the poor and perverting of Iudgement Perverting of Iudgement is the Oppression But then he did not again manifest Injustice It was objected that he might give erroneous Iudgement and that is Injustice If they are taken all alike it is clear that they are actionable and the party himself ought not to interpret but the Iudge The Case between Palmer and Boyer M. 37 38 El. He hath as much Law as a Iackanapes spolton of Palmer being a Lawyer and adjudged actionable And they were spoken to disgrace him in his profession 7 Iac. Thou a Barrester thou a Barrettor and thou durst not shew thy face Thou study the Law thou a Dunce actionable upon he same reason Mich. 14 Iac. Com. Banc. Beck against Barneby Spoken of an Attorney Thou art a Common maintainer of Sutes and a Champerter c. It was objected there that it was lawfull for an Attorney to maintain sutes Yet because he said Champertor it was actionable And Trin. 12 Iac. Com Banc. Yeardlies case He said of the Plaintiff being an Attorney Your Attorney is a bribing Knave and hath taken 10 l. of you to cousen me Answered that the words shall be intended of him as Attorney and so actionable One exhibites a Petition where it was first against the Lord chief Baron In which he said Tanfield is a great Oppressor of the Country and did remove the Boundaries between his Land and mine And it was adjudged actionable Pasc 4 Iac. Banc. Roy. Master Kebbe is a Basket Iustice and a partial Iustice and I 'll give him 5 l. a year for all Gifts that are brought to him for Injustice done And adjudged actionable And the word Partial Iustice bears an Action Hil. 40 Car. Kings Bench. Denson is a sweet Iustice of peace who gave a Warrant to apprehend I. S. and sent him notice of it Is actionable For it is a misbehaviour in a Iustice of Peace to do so H. 6. Iac. Com. Banc. rot 1159. Lonsman against Peck The Plaintiff shews that he had been impannelled upon several Iuries upon life and death and the Defendant said Thou art a Iury man and
by subtile and false means thou hast been the death of 100 men For before verdict against them and the words were that he was their death by false verdict As to the Bar. That is naught it appears by the Bar that the Defendant was not called to answer the Articles aforesaid For he said the Plaintiff would not proceed upon them Then the Plaintiff might be Iudge witness and party and not oppress me c. And it is not Iustice for one Iustice of Peace to refuse to proceed As here If Articles be given to him the Witnesses perhaps are not ready and although he request the Plaintiff to proceed it is not the Office of a Iustice of peace to promote a Cause For the words continue he justifies scribi fecit And that is no justification to contrive which is a word well known and apt to signifie the framing or inventing of Articles c. And the words are in the Declaration and did then oppress me And there is nothing answered to then or justified to it Pasc 24 Kings Bench Actions for words in London and the Defendant justifies the words in S. the Plaintiff demurred and had Iudgement M. 27 Eliz. Kings Bench. An Action for calling the Plaintiff Thief The Defendant pleads the Plaintiff guilty in 3 several Felonies And issue was taken de injuria sua propria absque aliqua tali causa And the Plaintiff was found guilty of two Felonies but not of the third And it was adjudged for the Plaintiff because he failed of his tali causa upon which he concludes c. Bramston at an other day on the contrary And said that the Declaration is not good First it must appear plainly that the Plaintiff was a Iustice of Peace at the time of the speaking of the words and implication will not serve I agree that necessary intendment shall be sufficient And if there might be other intendment it is not sufficient 13 Eliz. Dyer 304. Mich. 20 Jac. Kings Bench. Arundel Plaintiff Mead and Harvey Defendants in an Ejectione firmae brought upon a Lease made for 5 years if a Woman should so long live And after verdict for the Plaintiff It was moved that the Declaration is not good Because that it was not averred that the Woman was living at the time of the Ejectment But it was adjudged that the words virtute cujus he was possessed and termino nondam finito he was ejected supplies that Dyer 254. Debt upon a Lease for years rendring rent the Plaintiff declars upon the lease by him made to A. who devises it to the Defendant and he enters And it was objected that the Declaration was naught because that he does not shew the assent of the Executors and it is not said virtute Legationum c. But that he entred and that may be by any other Title and for that naught And in our Case that he was a Iustice of Peace many years before and at the time of the speaking And the words premisor non ignorant the Defendant intending to remove him c. does not aid it For it might be meant when he was not a Iustice of Peace It is not but by argument that he was then a Iustice of Peace Secondly The second Objection The second words are not laid to be spoken of Roberti Hitcham aforesaid It is to be observed that the words And he did then c. be distinguished in time For it is postea ad tunc et ibidem By which it ought to be meant spoken at another time of the same day and then all the subsequent words not actionable And it is not sufficient as it was objected that he was a Iustice of Peace when the Injuries were supposed to be done There are two reasons why a Iustice of Peace shall have his Action for words First That if the words be true they expose him to punishment or pain and either of them is sufficient cause to make the words actionable And when the words are such that they do not expose the party to punishment but only discredit him in his profession and make him subject to be removed they are not actionable unless spoken at the time that he is a Iustice of Peace And here the words are of such nature But words which expose him to punishment for a misdemeanour when he was a Iustice of Peace are actionable although spoken after he was removed Secondly If the Declaration was defective in substance for want of a precise shewing that he was a Iustice of Peace at the time Nothing in the Bar will help it But defect in circumstance may be so aided scil by the Bar as time or place failing in the Bar may be supplied by the Bar. 6 E. 4.16.6 E. 4.2.7 Rep. 24. Buts Case Mi. 37.38 Eliz. Badcop against Atkins Thy Father hath stollen six sheep It was moved in arrest of Iudgement Because it was not shewn in the Declaration that the words were spoken to the Son or in his presence of his Father the Plaintiff And as to that it ought to be intended For it is not sense to say thy Father to any but the Son Secondly the Defendant admitted it in his Bar. But resolved by the whole Court it is not necessarily implyed that they were spoken to the Son And then it was agréed by all that the Declaration was defective in substance and is not aided by any admittance in the Bar. Thirdly The third Exception here is there wants an Innuendo to make the Declaration good where the place is necessary to make the words actionable there ought to be an Innuendo for the place c. Barham did burn by Barn there no Innuendo will make the words actionable But if there be a Communication of the Plaintiffs Barn and that it was full of Corn there with an Innuendo horreum praedict will serve H. 37 Eliz. Banc. Roy rot 334. Thou art a Thief thou hast stollen half an acre of my Corn Innuendo half an acre of Corn severed Adjudged that the Innuendo does not serve So for Slander of title Entties fol. 36. A. was seised of the Mannor of S. and there was a Communication of that Mannor of S. And the Defendant said I have enough in my Study to make I. S. Heir to the Mannor of I. S. Innuendo manet praedict de S. It is sufficient Secondly The words are not actionable Witnesse Iudge and party is not a scandal without a violent construction of the words To say he did oppresse me That of a Iustice of Peace without more is hard to maintain an action for it does not appear that he was damnified And words of themselves which are actionable joyned with others are not sometimes actionable If one says of a Lawyer he did reveal the secrets of my Case that is not actionable for he might reveal it to a Iudge But if he said Goe not to such a one he did reveal the secrets of my case that is actionable Suegos case in the book
of Entries If one said of a Chirurgion he did poyson the wound of his patient That is not actionable for it might be for the cure of it But if he said as it was in 33 and 34 Eliz. Com. Banc. He did poyson the wound of his patient to get money That is actionable And the words here are allayed if they be joyned with the first For being spoken of a Iustice his power and greatness may oppresse him without fault in the Plaintiff One said M. 37 Eliz. of a Iustice of Peace That he was a Bloodsucker and thirsteth after blood yet if you 'll give him a couple of Capons he 'll take them Not actionable for they are too general As to the Iustification all is justified clearly It was objected then is omitted in our justification It is true if he complain of oppression one time and we justifie at another time it shall be insufficient But the matters of Iustification here well enough meet with the time By which c. Gosse against Brown Gosse brought an action upon an Obligation against Brown dated 23 Feb. 20 Iac. to pay money upon the 30 of December following It was then said that the money was not to be paid until the 30 day of December For it is all one as if the bond had been without date But if the condition had been to have béen paid the 33 Febr. It was then presently due upon demand because it was an impossible date Gibbs against Ienkins GIbbs brought an action upon the case for scandalous welch words spoken in the presence of divers understanding the language And witnesses were sworn to the Iury who deposed that the signification of those words were to steal or at least to carry away Which words in English not being able to bear an action Iudgement was given against the Plaintiff Ravyes Case A Sheriff had taken one by capias ad satisfac a Stranger assumes to him that if he will let him goe at large that he would pay him what damages he should sustain thereby No action upon the case will lie for that promise because it is against the Common Law And 23 H. 6. 2 H. 5. If a man oblige another in a bond not to follow his trade It is void Darlyes Case SErgeant Atthow shewed to the Court that an action upon the case was brought by the Sheriff of S. And declares that the Defendant assumed that if he would put such an one in Execution into the Castle of which he had recovered against him to save him harmless And shews that he did take him in execution and that for that he was indicted for a forceabie entry and sues in the Star-chamber ad damnum 500 l. And the Court séemed that it was not a sufficient consideration For it was no more than by his office he ought to doe But if it was upon an other matter otherwise it should be And for that they said to the Serjeant that he might have demurred to the Declaration NOte that it was said that an Ejectione firm does not lie de una pecia terrae although that it was added conteining by estimation half an acre of land vocat It is not good But he ought to shew the longitude and latitude And it is otherwise in an assize and that for the view And so it was held by the Court. Hadves against Levit. AN action upon the case was brought That in consideration the Plaintiff would consent that his Son should marry the Daughter of the Defendant and that after the Coverture upon request of the Defendant the Plaintiff shall make a joynture of 20 l. to the wife That the Defendant should give 200 l. to the Son in marriage they are married the mony is not payed the Father of the Son brings this action and shews how he is indamaged by it because that he is constreined to give more to the Son and his Wife for to allow them maintenance then otherwise with an averement that be is forced to make that Ioynture if the other will make the request Richardson This action should have béen more properly brought by the Son for he is the person in whom the interest is And he put the case 22 Eliz. A man had a license to transport Herrings to Spain and the Daughter one of the parties had a license And a stranger comes to the Father and says to him procure me that license and I 'll give you 100 l. and 100 l. to your daughter It was held that the Daughter should have the action for the one 100 l. for more specially it concerns her And put the case of lorning Iorning 37 Eliz. Where A. was indebted to B. a stranger follows the sute for B. A. comes to the stranger and says to him leave the sute and I 'll pay your Master The Master shall have the action upon the case And now in our case the father does not demand the 200 l. but only the damages which will happen to him by the non-payment to the Son Hutton There is a difference when the promise is to perform to one who is not interessed in the cause and when he hath interest In the first case he to whom the promise is made shall have the action and not he to whom the promise is to be performed If A. promise B. to pay I. S. 10 l. upon a consideration which is not done B. shall have the action and not I. S. If there be two joynt of a Horse and the one conditions with the other to goe to Market to sell it who does it and appoints the payment to be made to another In this case he only to whom the payment is to be made shall have the action So also if my servant by my command sell my Horse the money to be paid to me I shall have the action and not my Servant for the interest is in me So here the interest is in the Son and he is to have the money It was said at the bar betwéen one Cardinal and Lewis It was adjudged that where two fathers promise upon marriage betwéen the daughter of the one and the Son of the other that the Father of the Son will give 100 l. stock and the Father of the Daughter 100 l. in money The money was paid and the stock not delivered And the action was maintained by the Father And the Iustices said that they would see that Record viz. 27 H. 8. Tathams case of a promise made to the wife c. They put at the bar one Cores Case That a man promised to one to make satisfaction of all debts in which he was indebted to another who was then absent He to whom the satisfaction was to be made brought the action upon the Case and well maintainable ve Mich. 43 44 Eliz. in t Rixon Horton Stone against Tiddersly THe action was brought upon an Obligation the condition whereof was that a conveyance of a Mannor shall be made to one P. and two others to the use of Richard Tiddersly and the heirs males of his body The remainder to the heirs males of Rob. Tid Vpon issue whether conditions were performed And it was found by verdict that it was to the use of the heirs males of his body the remainder to Rob. Tid and the heirs males of his body Held no performance for they agréed not to the words of the Condition IT was agreed by all That antient Demesne was a good plea in Ejectione firm but not after imparlance Crosses Case THere was errour brought because the appearance was by Anthony Goodwin Attornat suum And there was not any such in rerum natura The Court said that this averment shall not be received against the Recorder of the Court. FINIS
open Pound if they dye the Distreyn is chargeable 75 A demand before a Distress if the Demand is out of the Land if not then see 86 Where Damages shall not be mitigated 93 Where a Demand ought to be certain and where not 109 On a Devastavit a Writ de bonis propriis issues 110 If a Debtee mary Debtor what becomes of the Debt see 120 In what Cases A must declare tam pro domino rege quam pro seipso 122 Double delay not allowed 126 E DElay in arrear of Error not hinder Execution 17 If a Sheriff remove his Prosoner out of the County without command It is Escape 34 Where he permits him to go for his pleasure Escapes lies ibid. Ne unque Executor found against him upon a Scire fac shall be only de bonis testat 48 Eject firm lies against Tenant at Will if he leases for years 73 If the Conisee permits the Conisor being in execution to go at large be an Escape 79 Excommunication to strike in the Church 86 If an Executor dies before probate the Goods belong to the Administrator of the first Testator 105 A Rent upon Condition reserved to the Executors goes to the Administrator 115 If a devise be void if no Executor be made 118 Ejectments do not lie of a Mannor 146 In Ejectment he ought to shew the certain quantity of Land 176 Antient Demesn is a good Plea in Ejectments 177 F A Franktenement cannot pass from a day to come 29 Feoffment to the use of a Stranger ought to be tendered to him 56 Denyal of the Rent a Forfeiture 6 A Subject may have a Forest but not a Justice Seat 60 No Clergy for Felony committed upon the high way otherwise upon the foot way 75 In a Formedon he ought to make himself heir to him who died seised last of the E-Estate tayl 78 Felony to take Pidgeons out of a Dove-coat 149 Fieri Facias no Bar to the Capias although part of the debt be satisfied 159 I INdictment quassavit for incertainty 35 Upon a Judgement if the Money be paid to the Attorney it is good but otherwise of a Scrivener 48 Inne-Keeper ought to say in his Action transiens hospitavit 49 If Land be descended to an Infant the Sheriff shall surcease his extent 54 59 Iudgement had against an Infant may be reversed 65 Judgement reversed for want of Pledge 59 Imparlance roll may be amended 143 Infans habeat eandem actionem possessoriam qualiter antecessor 160 An issue mistaken cannot be amended 164 K IF the King enters upon any Tenant a Petition of right lies 29 The King cannot take a man in execution out of Prison to his wars causa vid. 57. L VVHether a Lease to two be determined by the death of one 85 Whether a Grant of Estovers out of another place than was the Lease be good 78 Libell for the Seat in a Church 94 Where upon a Lease the Heir shall be estopped and where not 91 Libell for Tithes of two pecks of Apples 100 M VVHat things go to the making of a Feme sole Merchant 9 Where inter-mariage is but a suspension of a promise 12 An action brought in consideration of a mariage 50 How a Lord shall recover in a Writ de valore maritagii 55 O FOr what Causes an Outlawry may be reversed 93 P IN Partition no dammages are to be recovered 34 Prescription for Sallery of a Vicar is tryable at Common law 33 Prohibition where the thing might be tryed and proved at Common law 15 Where Prohibitions shall be granted and where not 19 27 28 49 50 51 60 68 69. Parson cannot discontinue 88 Prohibition upon words 94 A Protestando is no Answer 104 Symony a good suggestion for a Prohibition 116 Whether a Prohibition may be without alleging a Custom 117 Per minas pleaded 121 R VVHether the word Successive so makes a Limitation of a Remainder good matter and Cases thereupon 22 23 24 25 26 If a Feme sole Executrix of a Term mary him in reversion and dies the Term is not drowned 36 Release of Actions and Sutes substantive bars Debt 15 Nul tiel Record replyed where Recusancy convict is pleaded by the Defendant the Record must be shewn 18 Where a Reversion passes without Attornment 73 Where one Request may serve for several Debts 84 Whether on a Rescous the Action shall be brought by the Plaintiff against the Rescousor or against the Sheriff 95 Where no averment against a Record 107 Where a Feme shall be remitted and what makes a Remitter 110 No Rescous can be of Goods 145 Arrerages for rent upon an Estate for life cannot be forfeit for Outlawry 164 S TO grant a Supersedias there must be execution erronice emanavit alleged 30 Surrender determines the Interest of all parties but a Stranger 51 In Case of Symony the Statute makes the Church void 51 No fee due to the Sheriff for the executing of a cap. utlagat 52 That he might arrest the Kings Servant upon this Writ ibid. Quicquid plantatur solo cedit solo 57 T TRover and conversion brought for a load of wheat 22 A discharge of Tithes by the Parson for years runs with the Land and not with the person 31 Where toll ought to be pleaded in Trover and conversion 49 Trespass against Baron et feme dum sola fuit both shall be taken 53 If Part and Portion a like make joint tenancy or tenancy in Common 55 Trespass brought by Baron and Feme they must not say ad damnum ipsorum otherwise of Jointenants 2 Tithes of Fish due meerly by Custom 13 Tithes where due by the Common law of the Land no Prohibition ibid. Tithes of Limekills 14 The word Equally makes Tenancy in Common 64 No Trespass lies against a Disseisors Lessee 66 Where Tithes of young Cattel 85 93 Tithes for hedging Wood. 18 A Term evicted on Elegit is grantable upon a Statute Merchant or Staple not tithes for milk of Calves 100 No Composition for tithes for life without Deed. 107 No tithes for Estovers burnt in an House 110 V A Special Verdict may be amended according to the notes given to the Clark 52 A Verdict finding matter repugnant or which cannot come in question binds not the Court. 4 If a Scrivener not the party reserve more than just interest no Usury 11 Where the Visne and the return differ it is not good 83 If Defendant dies between Verdict and Iudgement Iudgement will be stayed 90 Whether Beer Brewers are within the Statute and intent of Victuallers 101 W VVAste committed by a Stranger the Lessee dies no remedy against the Seranger 97 Tenant for life and he in remainder may join in Waste 105 The Warden of the Fleet nor Westminster never may take Obligations for Dyet 146 REPORTS AND CASES TAKEN In the third fourth fifth sixth and seventh years of the Reign of the late King Charles c. Ralph Marsh against John Culpepper RAlph Marsh brought an action upon the
case against Iohn Culpepper and Anne his wife for an Assumpsit made by Anne dum sola fuit And afterwards the Assumpsion is found by verdict And Davenport moved in arrest of Iudgement for that that there was not a sufficient consideration for whereas the wife was Administratrix to Goddard her first husband who was indebted to the Plaintiff for so the Plaintiff declared and that he intended to sue the wife as Administratrix and that the wife requested him that two might surveigh the account between her husband and the Plaintiff to which the Plaintiff assented and that two surveighed it accordingly when it appeared that the debt was due and that then the fore-acknowledgement of her husband to be so indebted In consideration of the premises assumed to pay the debt part at Michaelmas and the other part at a convenient time after But there is noe consideration to make her chargeable de bonis propriis as their purpose is to make her by their Declaration against her and not as Administratrix For it is not mentioned that in consideration that she had assetts or that the Plaintiff would forbear to sue her or otherwise c. So that the debt of her husband by the Assumpsit cannot be changed to her own debt And it is not like Banes case Co. Re. 9. 94. For there the Plaintiff was to forbear to sue him and for that assets is not requisite The like is Beeches case 15 Eliz. in that Court reported New Entries fol. 2. Richardson of the same opinion because there is not any consideration nought but the assent of the wise to the accompt which will hardly charge her de bonis propriis See Co. lib. 6 41. Pasch 3. Car. Com Banc. Thomas Ux. against Thomas Newark THomas and his wife brought Trespass against Tho. Newark for beating of the wife and taking of the goods of the husband only ad damnum ipsorum and afterwards the matter was found by verdict and it was moved that the Declaration was nought for the wife cannot joyn for a Trespass done to the husband alone but in a trespass done to the wife alone the husband ought to joyn and for that the Court awarded quod quereâ—… nil capiat per bill But it was said by Crook and Yelverton if baâ—…on and feme bring trespass for the beating the wife the husband may declare for a trespass done to him ad damnum ipsius c. But it was said by Hutton if two joyn in trespass for taking goods whereof they were joyntly possest one of them in an action cannot declare for taking of the goods of him alone Which was agreed by Crook c. Blackhall against Thursby ONe Blackhall petitions in the Court of Requests to compel Thursby Lord of the Mannor to admit him to a Copyhold surrendred to his use which he refused before to doe And also forbad one to whom the Copyhold was demised by Blackhall to pay him any rent Vpon which it was decreed that Thursby should admit him to a Messuage and 17 acres whereas the Copy was of a Messuage and 3 acres and also that Thursby should set forth the bounds of the Copyhold which he had defaced and removed and that he pay the rent Hitcham moved for a prohibition for he said it was more just for a Court of Equity to compel a Lord to admit his Copyholder for before admittance he cannot have an action and he has no remedy at the Common-law And so if a Copyholder removes or defaces the bounds of the Copyhold it is proper for such a Court to design them To which the Court agréed but they would not compell him to admit him to the Messuage and 17 acres where the Copy is but of thrée acres which would be unjust unless that the 3 would comprehend the other 14. But parcel or not parcel of Copyhold belongs to the Common-law to try But the Court denied the prohibition for that cause for the Iustices said that that admittance to 14 acres does not bind the title but it sets at liberty as to that But if they had decreed that he should be admitted and also enjoy it to him and his heirs then the Decree had been unjust and a prohibition for that But for part of the Decree which touch'd the rent It was agreed by the Court if Thursby receive the rents the decree was just that he should pay it but if he did not receive the rents nor take the profits but only forbad the Tenant to pay the rent and he would save him harmless Then if it was decreed that he should pay the rent a prohibition to that part should be granted And Harvey Iustice in that case said That he knew it to be adjudg'd that a surrender with the appurtenances would pass land And of a Messuage and 3 acres would pass more acres if divers Copies successively have been so And upon questioning of Blackhall by the Chief Iustice for saying that after there was a Decree in the Court of Equity an Order of the Common-bench could not supersede the Execution of it And Iustice Yelverton declared That when he was in the circuit at York a poor man who sued before him in forma pauperis was arrested by process from the Council of York And that upon notice of it he commanded a writ of privilege to be made for him but the Officer of the Council would not obey it upon which he claps in a Habeas Corpus returnable at a certain hour and the Officer came without the body and refused to deliver the prisoner and said that he had not power to controll the process of the Council And upon that he set a fine upon him of 40 l. and his Act was approv'd on by the whole Court. For every one that sues before the Assize ought to have free egress and regress and staying while his business was ended And afterwards the Lord President said to Yelverton that he would complain to the King and Privy Council of him for that he had transgressed his authority and power And the Court said that they would justifie it c. Smith against Doctor Clay HEnden moved for Doctor Clay Viccar of Hallifax that a prohibition might be granted to the High Commissioners of York For that that these Articles by one Smith were preferred against him c. First that he read the holy Bible in an irreverent and undecent manner to the scandal of the whole Congregation Secondly that he did not doe his duty in preaching but against his Oath and the Ecclesiastical Canon had neglected for sundry mornings to preach Thirdly that he took the Cups and other Vessels of the Church consecrated to holy use and employed them in his own house and put barm in the Cups that they were so polluted that the communicants of the Parish were loath to drink out of them Fourthly that he did not observe the last fast proclaimed upon the Wednesday but on the Thursday because it was an Holyday
good and it shall be intended that the Parson is alwaies resident in his Parsonage as a Surrender or an Attournment shall be intended upon the Land and it is not requisite to name any place And it seemed to Harvey that the Arbitrement was good although that all the Parishioners had not submitted to it Because that these were bound for them 18 E. 4. 22. 1â—… 1. And Iudgement was afterwards in the next Term given for the Plaintiff Iohn Paston against William Manne IOhn Paston brought an Ejectione firm against Manne and a special verdict was given to this effect scilicet Edward Paston was seised of the Mannor of Bingham parcel whereof was the Land in question grantable by Copy And he by his Deed indented in consideration of a Mariage to be had between Tho. Paston his Son and the Daughter of I. S. covenanted with I.S. to stand seis'd of the Mannor to the use of his Son for life and after to Mary the wife for life the remainder to the first Son between them in tail with divers remainders over The Mariage was solemnised and they found moreover that there was a Custome that the Lord might have liberty of fould course for 100 Sheep throughout all the Copiholdland lying in the East and North field the Customary places and Lands in these Fields not being inclosed from the Feast of St. Michael to the Feast of the Annunciation if the grain was carried in by that time Or otherwise from the time of the carrying in to the Annunciation if it be not sowed with seed again and that those 15 acres in question be in the Corn-field And that Thomas Paston granted that Copihold to the Defendant in Fee and that in 14 Iacobi the Defendant enclosed the Land without Licence of the Lord and if Licence was obtained then he ought to have paid a Fine which the Lord would have assest And if any of the Tenents inclose without Licence they find that they have used to be punisht and pay those penalties which the Lord would assess And they also found that that incloser by the Copiholder was with a Ditch of six foot in breadth and 3 foot in depth and that the land which he digged out was but to make a Bank upon the Land upon which a hedge of quick thorn was set and that four gaps were left in the inclosure of nine feet in breadth And they found that the Defendant did not at any time compound for a Fine And then they find that the Copiholders which before this inclosed without Licence were amerced and commanded upon a pain before a certain day to throw up their inclosures And now for this inclosure Thomas enters for a forfeiture and dies his Wife makes a Lease of it and the Defendant ejects the Lessee Atthowe held that he had forfeited his Copihold for that inclosure is against the Custome of the Mannor which is found For the Custome is the life and soul of a Copihold as it is in the 4 Rep. 31. Brownes Case The breaking of that is a forfeiture and make the Copiholder have an Estate at will meerly whereas before he had an Estate not meerly at the will of the said Lord but secundum volunt domini And so by the inclosure the Lord cannot have his fould course and so the custome is broken 42 Ed. 3. 25. For not doing the services the Lord may enter and have the Emblements If a Copiholder makes a feoffment it is a disseisin for which there may be an Assise of novel disseisin de libero tenement of Lands whereof the profits or of the Rent issuing out of the Land there is a forfeiture And Littleton said that a rescous Replevin Enclosure and denying the Rent is a Disseisin And what is a Disseisin of a Freehold is a forfeiture of the Copihold Rescous by a Copiholder is a forfeiture for all the books say that a denial of a rent is a forfeiture And it is held that if a Copiholder brings a replevin it is a forfeiture and the Lord may enter presently But if he avow then perchance he hath dispensed with it And an inclosure is more strong than a denial 11 E. 3. Assise 88. cited in Taverners Case 4 Rep. The heir cannot have an Assise before entry but if the Defendant menaces him or stops up the way it is a Disseisin 14 Ass plac 19. 8 E. 2. As 374. A stopping up of the way is a disseisin but if he can go another way he can have nusance 29 Ass 49. But it will be objected that the Lord had another remedy for he might have an Action of the Case And for that not enter for a forfeiture But an Action of the Case does not restore him to the Freehold but give dammages only And if an Assise be brought it affirms the Disseisin and makes forfeiture and that agrees Taverners Case That where several Copiholds were granted by one Copy a rent denied of one forfeits that and not the others But admit it is a forfeiture if the leaving the Gaps dispence with it And it seem'd that not for he loses the profit of the Fould-course for 500 Sheep would tear their fleeces by such a narrow passage and the inclosure is an impediment to hinder their spreading in their feeding And so every one also may inclose and leave gaps and the Lord perhaps compell'd to put and remove the Shéep ten times in one day and so the Sheep worse at night than in the morning c. Secondly if the Lord had given Licence then he would have had a Fine but he would so be his own Carver And the Lord had no remedy for a Fine upon admittance after Surrender 4 Rep. 46. He had no remedy there by Action of debt nor by Action of the Case without promise to the Admittance c. Lord grants a Copihold Escheat he ought to improve his Fine before or he hath no remedy for he is not compelled to grant the Copihold again and therefore he shall have what Fine he will And it is not found also who may inclose paying his Fine A Lord admits a Copiholder for life with remainders the admittance of Tenent for life was the admittance of the remainder but he shall have his Antefine 4 Rep 23. And if they may inclose paying a Fine then the Lord had an Estate at the will of the Tenents Thirdly when it is found that the Lord amerced and commanded upon pain c. that is no mitigation or dispensation of the forfeiture For ruinous Houses pull'd down is a forfeiture without Custome to the contrary Because no waste lies against a Copiholder as against Lessee for years And yet the Lord in favour may amerce such a Copiholder if he will and that is no dispensaition but an affirmation of the forfeiture And so because the Lords were conscionable and would not take the forfeiture that does not prove that it is a Dispensation Fourthly the making of the gap and hedge of
that latitude c. is waste and for that a forfeiture 22 H. 6. Waste 46. There it is agréed that if Land be digged to make a Bank and if more be digged than is necessary that is waste if it be not cast down again for the Land might be made barren 41 E. 3. Waste 82. There it is not waste for the Land is better than it was before But it is not better if it be arable Land for the Trees and Bushes shadow the Sun from the Land Dyer 361. And if none had been folded there yet it should not have been waste Fodder in Meadow is waste but there it was found by the special verdict that the Land was imbetterd If Lessee for years does so it is a forfeiture 2 H. 6. 17. There it is said that permitting the Land to lye fresh is waste But thorny is no waste for the Less may grub the Thorns up and it shall be better Land wherefore he prayed Iudgement for the Plaintiff But Sergeant Henden argued for the Defendant and conceived that in the whole cause pleaded there is not any thing in it which makes a forfeiture There are two things in it to make that inclosure and waste And first That an Inclosure without Licence is not a forfeiture First every Act that makes a forfeiture of a Copyhold ought to be a dis-inheritance to the Lord c. Secondly a voluntary Act against the Custome c. Thirdly in this Case there is not any Custome found which makes a Forfeiture And for that any Condition in Law is excluded A Copiholder is in tenens secundum consuetudinem manerii and therefore an Act that makes a forfeiture ought to be against Custome and a dis-inheritance to the Lord of his Copihold and not of a Collateral thing As a Trespass upon the Demesus of the Lord is not a forfeiture 21 H. 7. Kell 77. 9 Rep. 76. Combes Case there has the same rule The Custome fixes his Estate so long as the Tenent does the services and observes the Customes Hill 16 Iac. Com. Banc. rot 335. Brettyes Case Two Copiholders are and one release to the other is no forfeiture Dyer 221. One part of the Services there was to make Presentments and if he refuse it is a Forfeiture If a Copyholder fell Trees it is no Forfeiture because it may be for the reparation of Houses But an Act afterwards as selling them may cause a Forfeiture 9 H. 4. Waste 39. A Copy-hold is not forfeited by Outlawry in a personal Action for the Lord is not prejudiced by that And yet the King shall have the profits by which the Lord is estranged from the Tenement 5 H. 5. 2. New Book of Entries 228. Hill 4 Iac. rot 172. Com. Banc. in the end of the Case resolution is to this purpose If Copyholder be summoned to the Court by common Proclamation or express notice and he does not appear it is no Forfeiture Because it is but a failer of Services and no deniall And for that neglect he may be punisht and fined Secondly it was resolved that non-payment of the rent although it be a failer of Services or if he had said he could not now pay if is not a Forfeiture But to forge new Customes is a Forfeiture for that tends to the dis-inheriting of the Lord Dyer 228. The Case of pay ment of a Fine which admits the diversity appears Cook lib 1. 4 28. Now this inclosure is not a Dis-inheritance or a voluntary Act to estrange him from his Lord. And then the Custome ought to make that a Forfeiture which is not so found And it was a rule in P. 19 Iac. That a bare Inclosure is not a Forfeiture of a Copyhold And then it is found that he shall not inclose without Licence But it is not found that if he should inclose without Licence it should be a forfeiture And there is neither express nor tacite condition that it should be a Forfeiture And then it is found that he may amerce and command that the Hedge should be pulled down upon pain c. The intention is not that he had two remedies And it is not to be found in our Books that one Act causes a pain and a forfeiture also And so the custom shall be taken favourably for the Copy-holder and strictly for the Lord for a forfeiture is odious in Law 4. Rep. 9. There the Custom is found that not appearing at four Summons is expresly a forfeiture And to the objection that is made that he had not any remedy for his Fine the Verdict answers that that he may put a pain upon him Secondly he encloses and leaves three gaps It was objected that an Enclosure was a disseisin ergo a forfeiture In some Cases that Enclosures shall be disseisins there is no question But there is if they be Enclosures with gaps The Enclosure that deprives him of all his remedy is a disseisin in Rent but otherwise not For Littleton says if he enclose that he cannot distrein I conceive this diversity If a Copy-holder makes a disseisin of any thing appertaining to the Copy-hold it is a forfeiture for then he doth an act that estranges the Lord from his Tenant but if the Lord had any profit accrewing out of the Copy-hold and he disseiseth him of that Whether you will make that a forfeiture As if the Lord had herbage out of the Copy-hold a disseisin of that is not a forfeiture unless it be particularly by Copy of the Grant The making of the Ditch is objected to be waste and therefore a forfeiture I agree if it be waste it is a forfeiture It is not a forfeiture if a Copy-holder dig a Marle-pit and Marles his Land for the Land is imbettered by it It is objected that it is a forfeiture at Common Law 22 H. 6. 41 E. 3. waste 821. If Lessee for years plough a Meadow it is not Waste for it tends to a matter of Husbandry Natura Brev. title waste Dyer 361. pl. 12. Lessee for years converts Land to Hop ground It was the opinion of Popham Lord Chief Iustice 30. Eliz. that it was not waste And for that that the Land by this Enclosure is imbettered it is not waste and the Lord had no prejudice because the gaps were left And the Court said that it is to be presumed that all the Land was imbettered by this Enclosure if it be not expresly shewed to the contrary Sed adjournatur c. Ralph Marshes Case again ATthome said that the consideration also is good and there is a double consideration of the Premises For she promised to pay that debt part at Mich c. So there was a day given or it was due presently And that is the consideration Crook said that it is no consideration For it is not expressed that he shewed the account But that they surveyed it which is not but an implication that he shewed it And he said that he intended to sue him and then he in
Sergeant Henden moved for a Prohibition for that that their Instructions are Whereas there be divers Books News and Tales spread abroad and Libells made by which the Subjects are abused and the Peace may be broken you shall proceed against such Persons till the Authors be found out and they be punished by fines imprisonments papers set on their breasts and the like And he said that those words are not accomtable at Common-law and therfore are not as they seem within their Instructions But admit that yet they have not power to give dammages to the Party Richardson said In the Star-Chamber libellous Letters that are spitefull and scandalous to defame any although that they bear not an Action at Common-law yet they are punishable there and also they give dammages to the Party wronged But there is difference betwéen the Star-Chamber and that c. Henden said that Magna Charta makes the difference Quod nullus liber homo capietur aut imprisonetur nisi secundum legem terrae So by the Common Law and their instructions they have not power to give damages to the party Richardson chief Iustice said that no prohibition should be granted for the Fine of the King for they have power in that Case without question and to the punishing in that matter And if they err in Iudgement for the Libellious Letter and adjudge it to be Libellious where it is not We cannot award a prohibition nor grant error But for the damages that Court differs from the Star-chamber for the Star-chamber had its power by its self and differs from the Common Law But that Court is by Commission and therefore they ought to follow their Instructions And therefore a prohibition as to the damages shall be granted And Yelverton also was of the same opinion but he said there was another clause in their Instructions And for that a prohibition as to the damages shall be granted Hutton and Harvey said That if the sute was by information than it is clear that damages cannot be given But it is by Bill so in nature of an Action as I conceive which concludes that they were damnified But it is now brought too late to grant a prohibition where the parties have admitted the action But a day was given to shew cause why a prohibition should not be granted quoad the damages And so they concluded for that time Note that it was said by the Court That if money be lent upon Interest and the Scrivener who makes the Obligation reserves more then 8. l. in the 100. l. That that is not an usurious Contract See the cause c. Eaton and Morrisâ—s Case EAton and Morris being reputed Churchwardens but they never took any Oath as the Office requires present a Feme Covert upon a Common report for Adultery c. And the husband and wife Libel against them in the Ecclesiastical Court for that defamation And when sentence was taken and ready to be given for them the Churchwardens appeal to the Arches and for that that that presentment cannot be proved but by one witness they sentenced the Baron and Feme And now Ward who that term was made a Serjeant by a special call moved for a prohibition but it was denied by the Court for they were Plaintiffs first And also it is a cause which this Court had not any Conusance of Marshes Case before MOre of Marshes Case which is before Richardson Hutton Harvey and Yelverton said That the consideration also is good For although that it be not expressed that the Plaintiff himself shewed the accounts yet it appears fully that they were upon the request of the wife viewed And it shall be intended by Common presumption that the Plaintiff himself shewed them for he had the custody of them and is owner of them And the Books of Merchants are their secrets and treasure and they will not shew them by their good will Now it is not like to the case of an Obligation for there the certainty of the debt was before and he was compellable to shew it But the certainty here cannot appear without great search and labour and there can be no compassion to shew their Books And by Hutton Iustice There is no question but if the promise had been made after the Sute commenced it haâ—… been good No question by Richardson and it is agreed by all That if the Defendent had required the Books to be brought to his house or to another place it should have been good And there is not any difference although the Books were shewen in the shop by the servant for he permitted his Books to be viewed c. And Yelverton said that Beechers Case and Banes Case is more infirm than this Case is And yet adjudged there to be good And so it was awarded that Iudgement should be entred for the Plaintiff Si non c. Of a Communication of Marriage A Communication between I.S. and A. was of the Marriage of I S. being possessed of a term for years and of certain goods promised to A. that if she would be married to him and they had issue a son that he should have the term If a Female that she should have the moyetie of the goods And after they intermarry and have issue B. a daughter The husband dies and B. brings an action upon the Case against the Administrator of I.S. By the Court she cannot bring the action unless as Administratrix of A. or in the name of A. And the Case of Stafford was recited Where there was a Communication between Stafford and a woman That if she would marry with him that Stafford would leave her at his death 100. l. And after the intermarriage and death of the husband in an action brought by the wife the question was whether the promise was extinguisht by the intermarriage And after grand disputes it was resolved that the intermarriage was but a suspension of the promise And so it was concluded Kitton against Walters KItton brought debt upon the Statute of 5. Eliz. cap. 9. for Perjury against Walters for an Action of Trespass for Battery was brought against him by I. S. and he pleaded not guilty and that the Defendant was brought as a witness And that he falsely and corruptedly deposed and did not speak voluntarily that the Plaintiff in the Trespass was wounded and beaten c. And that he could not labour for half a year c. And upon the general issue pleaded it was found for the Plaintiff and Hendon moved to have Iudgement But it was objected that the party grieved shall not have that Action for that he did not say voluntarie deposuit c. For although that he falsly deposed wherein voluntary is not but a conclusion and voluntas ought to be in the premisses and corruptive does not include that and so was the opinion of the whole Court And it was awarded that the Plaintiff nil capiat per breve A servant of a Bayliffs Case IT was awarded
tender a Rent seck upon the Land The Grantee cannot demand it upon the Land in the absence of the tenant that it ought to be to the person upon the land For what can the tenant do more than he hath done already And the Statute of Westminster 2. cap. 9. gives ease to the Tenant When the Lord distreins immoderately and unnecessarily For an immoderate distress may be the ruine of a tenant And therefore the Statute says Nec habeat Capitalis dominus potestatem distringendi tenentes in dominico suo dum praedict Tenens offerat ei servitia debita consueta 30. Ass Fitzher N. B. 69. G. If Cattel be distreined damage feasant and tender of sufficient amends is made The Distreiner is liable to damages for the detinue although not for the distress And to the same purpose is Cook lib. 8. 140. Carpenters Case 5. rep 76. Pilkintons Case c. The second question is whether a Bayliff without command of the Lessor when he had refused to take the Rent upon a Lawfull tender may distrein And it seemed that he cannot And the second resolution in Pilkintons Case came to that question That a tender of amends to a Bayliff amounts to nothing And the question upon a Herriot is Whether the Lessor may distrein without declaring his election and it seemed that he cannot For that is no Heriot which may be seized As the Case in one Woodland and Mantles Case there it is certain And because the Law vests it in him immediatly after the death of the tenant But so it is arbitrable and cannot vest before Election and also the Tenant does not know which he ought to provide before and declares his election And it was demanded for that it is not reasonable that he shall be lyable to a distress and cannot by any possibility prevent it 2 Rep. 36. Sir Rowland Howards Case I cannot finde any president where an Avowry is made upon a disjunctive reservation without allegation that he had declared his Election Although that the Lessor in that Case may distrein without declaring his election yet the Bayliff cannot for he cannot justifie as Bayliff for an Arbitrable thing without express command Acceptance of Rent by a Bayliff cannot alter the Tenancy For although that he had power in Law to receive the Rent yet he cannot by Law alter the Tenency by his acceptance without the Lords Command Dyer 222. A Bayliff may demand Rent but cannot enter for non-payment without express command And when he avows he cannot avow any thing which doth not appertain to his office And for that that it is an arbitrable thing which cannot be transferred from the person of the Lessor his Heirs or Assigns that distress is well taken c. If a Writ of Error was brought in this Court and the day of the return is long to delay the party as if it be more than the next Term the Court may award Execution quod nota c. Gammons Case ONe was obliged in the Ecclesiastical Court not to accompany with such a woman unless to Church or a Market overt And afterwards he was summoned to the Ecclesiastical Court to say whether he had broken his Obligation or not And Ayliffe moved for a prohibition which was granted For that that the forfeiture is a temporal thing And it does not become them in the Ecclesiastical Court to draw a man in examination for breaking of Obligations or for offences against Statutes Dame Chichley against Bishop of Ely DAme Dorothy Chichley brought a Quare impedit against the Bishop of Ely and Marmaduke Thomson And declared that Thomas Chichley was seized of the Advowson of the Church of Whiple in Cambridgeshire And presented Marshall and died seized and the Advowson descended to Thomas his son who by Indenture granted it to East and Angel and to their use and the use of the Plaintiff for life And he being seized of the Church it became void c. But Thompson pleads that he is Parson imparsonee ex praesentatione of the King And confessed that he was seized as aforesaid but that he was seized also of other Lands in Capite and dyed and that his son Thomas was and now is within age which is found by Office And so the King by his Letters Patents after avoydance presents Thompson who was instituted and inducted Absque hoc that Thomas Chichley granted by his Indenture to the use of his wife c. And the Plaintiff replies null teil record Vpon which the Defendant demurs Atthowe for the Defendant Although the Plaintiff may have a Writ to the Bishop when his Title is traversed And admit there be no Inquisition Yet the King may present before Office found 20 E. 4. 11. An Advowson being void is not but a Chattel and for that it is vested in the King without any Office And you may see many Cases to that purpose Richardson said If it be not by the Statute 32 H 8. The King may grant Wardship of Land before Office Atthowe Also there is Traverse upon Traverse which should not be Hendon argued for the Plaintiff And he says he is Parsona imparsonata and does not say before the purchase of the Writ For the Incumbent by the Statute of 25 E 3. cap. 7. cannot plead unless he be Incumbent ante diem impetratitrationis brevis unlesse he be Incumbent pendente lite he cannot plead c. Hutton If one be presented instituted and admitted before the Writ and inducted after and before his Pleader He may plead well And it was resolved by the whole Court That the pleading of the Parson was good without the words Ante diem impetrationis brevis And that all the Presidents are according to that But more afterwards c. Alice Readngs Case ALice Reading brought an Action upon the Case against I.S. And de-declared whereas she was a Maiden and had many Suitors the said I. S. said That Alice Reading was with childe and did take Physick to kill the Child Vpon which words divers men refused her And upon not guilty pleaded it was found for the Plaintiff Finch Recorder moved that those words were not actionable For that that it is not said precisely that she took Physick to kill the childe and that the Physick might have such an operation without her desire or purpose and also there is not any Suitor in special named And as it is in Anne Davyes Case 4 Rep. 16. 6. where it ought to be proved precisely to the Iury that such a one was Suitor and refused her But here there was no such proof And he alleged in the Case of Sell which was adjudged Where one declares that he endeavoured to mary a Woman and that she refused him upon slanderous words And it was adjudged against him For that that a Conatus is not sufficient but yet Iudgement was given for the Plaintiff without any reason alleged Cook lib. 4. 16. 6. The Lady Cockins Case The Case of a Recusant
by Attorny the Deed is void But now the grand doubt is whether the livery after the day by Attorny be good I will agree that if the letter of Attorny was made the same day that the deed bore date the livery is void For it shal not be in the power of an Attorny to invalidate or validate the lease made by an other So if a letter of Attorny be contained in a Charter of feoffment or be in another Deed delivered at the same day The delivery upon that Deed shall be nought And the Attorney by his livery cannot make the lease or feoffment good no more than in Bucklers Case an atturnment can make a Grant good 9 Iac. com banc rot 1414. Walter and Dean and Chapters Case of Worcester cited before In a Writ of covenant There a lease was made by E. for three lives bearing date the 10 of Novemb. 42. E. and a letter of Attorney to deliver seisin The Attorney delivered seisin a year after when two rent daies were incurred And it was doubted whether that livery was good because that two rent daies were passed before he had executed his Authority And it was adjudged good And it was not like the Lord Cromwells Case 2 Rep. Where a performance of a Condition for the avoidance of an advowson was void no time being limitted For in Case of authority it may be executed 10 years after So that what the Feoffor himself may do he may give authority to another to do that For if he be bed-rid or other infirmity shall the law so fetter him that what he can do himself he cannot in the same Case do by any other For although you may say that he may make a new lease yet perhaps he is tyed by Covenants or Obligations so by which he shall be worse intangled And the reason of the expectancy of the Frank-tenement also which an Attorney may make good or bad a lease of another is included Because where it is mischievous to none the law does not envy the Ease of the party as Combes Case is A Surrender by an Attorney of a Copihold is good and we can you know appear by Attorney in actions and acknowledge Iudgements But it will be objected that livery by Attorney is not good without a Charter of Feoffment as Kirkby said 16 H. 7. fol. 51. Plo. 6. And if those Books are not law Yet Greenwood and Tilers Case before recited will resolve that doubt That the Deed is not void if the livery be after and if the Entry be presently he is a Tenent at will or a Disseisor as it is in Bucklers Case For it cannot be made good by any thing after Yet the Déeds remain or otherwise his acceptance did not bar him I confess that an Authority to make livery cannot be made by Paroll as 10 H. 8. 11 H. 4. for it may be revoked by Paroll As a Will which cannot be made but by writing yet it may be revoked by Paroll 26 As But an authority to make a Lease is made by Paroll 30 E. 3.31 32. If a Déed purporting an Estate in Fee simple be read to the Feoffor who is an illiterate man to pass only an Estate tail And a Letter of Attorney was to deliver seisin secundum formam Chartae which is well read to him Yet it was resolved that all is void And that he may plead it was not his deed to the letter of Attorny For if the Deed be void the Letter of Attorney which releases to it is void also But I conceive if it be put in a Deed that gives Land a die datus and the Attorney authorised by express words delivers seisin three daies before that livery may be good And then it is more strong when he appoints his Attorney after the day as it is in this Case A Feoffment made from a day past is good and the time before the livery is idle And for another reason in Case of Assurances such nice constructions ought not to be made And because there is no difference whether livery be made in Person or by Attorney Now there is a difference between an Authority and Conveyance H. 20. 40 Eliz. in an Ejectione firm in this Court Marriots Case A Charter of Feoffment was made to the Lessor of the Plaintiffs 10 Septemb. And the Feoffee reciting that that Charter was made the 11 of September authorised him to take livery secundum formam Chartae And it was resolved because the date was mistaken although all other circumstances agreed Because that the authority ought to be taken strictly that that is a void livery But in Dyer 116. A Lease is made the 30 day of August for 21 years and afterwards the Lessor reciting that the Lease was made the 6th of August demises the Land habendum after the first Lease determined And it was resolved to be a good Lease because that the beginning and ending of the Lease agreed And in the Case of Marriot it was resolved Secondly That an Attorny cannot be without Deed. Thirdly Although that the Feoffor in person makes livery yet it is void Because that the Attorney cannot take the livery upon that Deed without that authority But where that one may do that thing himself and he gives the Attorney the same authority It is all one if Feoffment be made to I. S. and I. S. makes an Attorney to take livery whereof livery is made yet is good And it is all one as if livery had been made to I.S. himself 19 H. 6. A Feoffment upon Condition that he enfeoff I. S. void by the Statute of 1 Eliz. or voidable and it seemed it was but voidable by the Successor by entry or by action You may sée that the words are as plain as may be They shall be utterly void to all intents and purposes But quid haeret in litera For her meaning was That it shall be void by the Successor and that construction had alwaies been made 3 Rep. 19. 11 Rep. 73. So the Statute 23 H. 6. of Sheriffs had been expounded 7 E. 4. 4. There cannot be non est factum pleaded And upon the Statute of Vsury That an usurious contract shall be void Yet the Statute ought to be pleaded Acts of Parliament where there are many doubts shall be expounded by the Common law For that that at the Common law a Free-hold cannot he helped but by Entry 11 H. 7. There is a diversity between a Lease for years and a Lease for life Dyer 222. And it is the dignity of a free-hold to reduce it by free-hold Then if it stood with the Common law It is not to be void without Entry For as a solemn Ceremony created the same must defeat it The Statute shall be so expounded And if it was in Case of a lease years of a Bishop it shall not be void without Entry 3 Rep. Pennants Case Dyer 229. 8 H. 5. 11 E. 3. Commen 139. It was never the meaning of the Act
offences Therefore his sentence was That his Name should be put out of the Roll and thrust over the Bar and committed to the Fleet Which was executed accordingly 20 H. 6. 37. 41. E. 3. 1. Which Cases prove the same Iames and Thoroughgood against Collins IAmes and Thoroughgood brought Trespass against Collins And the Case was this A man makes his Testament and gives to 5 men their heirs and assigns certain Houses in Fleet-street c. All of them to have part and part alike and the one to have as much as the other And whether the Defendants were Iointtenants or tenants in Common was the Question and it was adjudged and resolved that they were Tenants in Common And the same Case in 2. 3 Phil. Mary in Bendlows Reports is adjudged so And also in Lucan and Locks Case in the Kings Bench It was afterwards remembred and agreed to be good Law Ratcliff Case Advise to two and his Heirs in Ioynt-tenency by the whole Court against the opinion of Audley It was said by the Court that an Officer of the Court ought to be answered in any action de die in diem Quod nota c. Beguall against Owen BEguall brought a Writ of Partition against Owen before the Iustices of Assise at the grand Sessions in Anglesey And the Defendant pleaded the general issue The Plaintiff prefers a Bill in English and says that Owen is Tenant in Common with him and that divers of his VVitnesses which can prove his Title are so aged that they cannot come to the Sessions and desires a Commission to examine the Witnesses concerning the Title in perpetuam rei memoriam And Henden moved for a Prohibition For that that Cause would be dangerous for the Subject that such Testimonies taken in his absence should be for tryal of his Title Secondly That that examination before the Tryal is against the Statute of 26 H. 8. And although they have it in Chancery yet it is not so here But it was denied by the Court For there was never seen such a President Of a Prohibition to a grand Sessions And by Yelverton They have it in Chancery and if it be not prescribed in what manner they shall have it it should be as in the Chancery Hutton That Commission is not prejudicial to the Subject although a Prohibition be grantable For such Testimonies are not used but after the Witnesses are dead And a man cannot preserve them alive and perchance his Title rests upon their Testimonies Iane Heeles Case IAne Hee le Administratrix of her Husband brought an action of Debt upon an Obligation made to her Husband the Testator The Defendant pleads a Recovery by the Testator upon the same Obligation and that he was taken in execution and that the Sheriff suffered him voluntarily to escape The Plaintiff replies Null tiel Record of the Recovery Vpon which there is a demurrer Davenport That the Iudgement was but a conveyance to their matter in Bar and it ought not to be traversed But it was said by the whole Court That the Iudgement in it self is a good bar if it be not reversed 6 Rep. 45. Higgins case The execution upon that is not but a consequence upon the Iudgement And without the Iudgement Escape is not material for to make the traverse good And so Iudgement was given for the Plaintiff Issues If the King by his Letters Patents grant to the Corporation all Issues within any places The issue that the Corporation it self shall forfeit shall be excepted by intendment of law For otherwise it would be a defrauding of Iustice For then the Corporation would never appear Which note in the Case of Dean and Chapter of Ely Provender against Wood. PRovender brought an action upon the case against Wood For that the Defendant assumed to the Father of the Plaintiff upon a mariage to be solemnised betwéen the Plaintiff and the Daughter of the Defendant to pay him 20 l. And it was agreed by Richardson and Yelverton nullo contradicent That the action well lies for the same And the party to whom the benefit of a promise accrews may bring his action Mrs. Rowes Case MIstris Rowe was arrested by a capias corpus ad satisfaciendum by a Bayliff in Middlesex within the Bars in Holborn which is within the liberty of London And Hitcham the Kings Sergeant prayed a Supersedeas For that that the arrest was false And the Court agreed that a Supersedeas cannot be granted For a Supersedeas it cannot be alleged Executio erronice emanavit but there the Execution is well granted And if it be returned by the Sheriff generally It ought to be intended well served although that the Affidavit be made to the contrary But in this case a Corpus cum causa shall be granted Booth against Franklin BOoth Farmor of a portion of Tithes for 5 years without Deed demises a Farm which he had in the same Parish to Franklin for years and afterwards he libells against him for tithe of that Farm And Franklin said he was not Farmour And Henden prays a Prohibition for that First That the Lease for Tithes is without Deed but he may be discharged of his own Tithes without Deed As was adjudged before in this Court Secondly the Lessee is not to pay tithes for that Farm For although the Parson makes a Lease of the Glebe for years he paid tithes But if a Layman who had the impropriation leases the Glebe the Lessee does not pay tithes But the Court denied the case of the lease of the Parsonage impropriate And said that the case of Perkins and Hinde was adjudged to the contrary in that very point And also if he purchase other lands in the Parish which are discharged of tithes in his hands and he demises them yet the Lessee pays him tithes And the opinion of the Court was If one contract with the Parson for discharge of the Tithes of his lands for years and demises his lands to another yet he shall not have tithes but the discharge runs with the land But if one take a lease of his Tithes by deed and makes a demise of his land he has tithes of the Lessee And the direction was that the Lessee of the Farm ought to shew expresly in the Ecclesiastical Court that the Farmour had not a Lesse by Deed and a Prohibition was granted And it shall be admitted that the words of the libell being Firmator conductor occupator was good Ralph Andrews against Bird. ANdrews brought an action upon the Case against Bird and declares that Bird sued a Trespass in this Court against him and upon not guilty pleaded the issue betwéen the aforesaid Ralph Andrews and Robert Bird was tryed at the Assises c. And that there Andrews shew'd in evidence a Deed of feoffment concerning his Title and the verdict passed for Andrews And afterwards Bird spoke these words scilicet That Andrews procured the Deed to be forged And upon not guilty pleaded it
was found for the Plaintiff And Atthowe moved in arrest of Iudgement First for that That in the Record it was entred that the Issue was inter praedict Robertum where it should have been Radulphum And secondly that the words were not actionable Richardson said as to the mistake it was helped by the word aforesaid And although that it was inter praedict Andrews it should have been well For it cannot be intended but the same Andrews And Crook Iustice cited Dyer 260. Cook and Watsons Case to be the same Case and 11 H. 7. Penningtons Case That the words were actionable For the Statute punishes forgery and the procurers of forgery And it is all one although he did not say falsly procured as the precise words of the Statute are Yet it shall be intended that that is implyed in the word Forge But if it had been said the Deed given in evidence was forged that was not actionable Wood against Symons VVOod against Symons in a Prohibition in which Symons libels for Tithes of Hay And Wood suggests for the Prohibition That he used to pay tithe of Hay in specie in consideration whereof he used to be discharged for all Doles Green-skips and Headlands not exceeding the breadth that a Plough or a Teame might turn about the Lands And Henden moved for a Consultation For that it is said about c. that is circa terras arabiles When the truth is there are Skips at the side of Lands as broad as the Lands themselves and then he would be discharged of them also Whereas it ought to be at the end of the Head-lands only Richardson said that in arable lands inclosed Pasture is at the end and at the sides which is mowed and yet discharged of tithes But the Court in respect there was a Prohibition granted said That he ought to joyn Issue or demurre upon the Declaration Summons IN a Writ of partition after the Summons an Estrepment was granted and generally against the Parties and their servants For in partition no dammages are to be recovered Quod nota Escape IF a Sheriff remove his Prisoners out of the County without being commanded it is an escape But if he remove them from one place to another in his County as he changes his Gaol it is not an Escape But if he remove prisoners for their ease and delight in the same County it is a Escape As the Case was cited by Harvy That one went with his Prisoner to a Bear-bating in the same County And it was adiudged an Escape And Hutton Iustice said So that if a Sheriff permit his Prisoners to go to work for their benefit it is an Escape And the Question was if in an Audita Querela for a voluntary Escape of one in Execution there should be bayl and the opinion of the Court was That if it appears That the Cause upon which the Audita Querela is grounded is called a good proof by the Record and that he should not be bayled unless good and special bayl Duncombe against Sir Edward Randall IN an action upon the Case betwéen Duncombe and Sir Edward Randall for diversion and stopping of a River It was agreed by the Court That if one had antiently Ponds which are replenisht by Chanels out of a River He cannot change the Chanels if any prejudice accrew to another by that And yet the effect by prefluxions is to have the Ponds fed out of the River But sic utere tuo ut ne laedas alieno The Vicar of Hallifaxes Case A Chaplain that was under the Vicar of Hallifax libells against him for his Sallary And he prescribes that the Vicar ought to pay the Chaplains four pounds a year And the Vicar prays a Prohibition First for that he alleges That the Chaplains were eligible by himself And because that Chaplain was not elected by him He is not Chaplain But he is in of his own wrong c. Secondly That prescription for Sallery was tryable at the Common law Yelverton the Sallery is spiritual as the Cure it self is spiritual for which it is to be payed As the Case in Dyer 58. Pl. 4. But a Prohibition was granted untill it was determined to whom the election appertained And that now depends by Prohibition in this Court Assault and Battery TRespass of Assault and Battery was brought against two and the one of them appeared and a Verdict was found against him The other was in the insimul cum And dammages were taxed against him who appeared But the Court by view of the Plaintiff increase the dammages from 30 l. to 40 l. And afterwards a verdict was given against the other Defendant and dammages also were taxed And Thime moved that the other Defendant had murdered the Officer who came to serve the Execution upon him for the 40 l. And so they by possibility might recover nothing against him that the Court would increase the dammages against this Defendant upon another view of the wound But the Court denied that For they can have but view one time in this Action But if they had brought several Actions then it had béen otherwise But he directed him to stay all untill the first Defendant was hanged And then they may make a view and increase the dammages Margery Rivets Case A Iudgement in Debt was brought against Margery Rivets Administratrix durante minori aetate of her Son And in a Scire facias against her she pleaded in Bar that she was Administratrix c. and that such a day her Son came to full age scilicet 17 years and that after she refused before the Ordinary And that the Administration was granted to a Stranger And that she had delivered all the Goods in her hands at the time of the Writ brought or after c. The Plaintiff replies and confesses all the Bar But that before the delivery of the Goods and Administration granted by the Ordinary devastivit and does not say that praedicta Margery devastavit The Defendant joyns Issue Quod praedict Margery non devastavit Which was found for the Defendant And Hitcham the Kings Sergeant moved in arrest of Iudgement For that that there was no Issue For every Issue ought to be returned certain and the Issue grows upon the affirmative Then the word of the Defendant quod praedict does nothing for the affirmative makes the Issue Coo. Countess of Salops Case A Bar may be taken upon Common intent But a Replication ought to be precise and certain In the Exchequer Chamber Tho. Harris's case One pleads that he was seised of White acre and Infeoffac .. And adjudged naught for it ought to have been feofavit inde For he may be seised of White acre and enfeofft of another acre And also it may be said that another devastavit although that the wife was Administratrix Atthowe observed all the course of the Reeord there is not a word of Margery in the Replication but only in the recital But says ante diem quo devastivit And
found for the Plaintiff and Finch Recorder moved in arrest of Iudgement first for that they assigne the wast in a Park where the wast is in Land c. Secondly Because that that Action did not lye for them both alike for if the Grandfather and he in the remainder in tayle had joyned in a Lease yet they could not joyne in wast The Books are If Tenant for life and he in the remainder joyn in a Lease they may also joyn with wast 21 H. 8 14. Although 19 H. 7. be put otherwise And 2 H. 5. Sir William Langfords Case Two joynt Tenants to the Heirs of one of them and they make a Lease for life And it was adjudged that they might joyn in wast for the Tenant for life had a reversion for life and had not made any Forfeiture If the Grandfather and he in remainder had joyned in a Lease and afterwards in wast it had been naught for the lease came out of the first root And it was resolved Tr. 2 Jac. Kings Bench Poole and Browses Case That one in remainder cannot have wast where there is an intermediate Estate for life Yelverton and Hutton did not believe the Case of 2 Jac. Crook If there be Tenant for life with such a power c. of Lands held in capite he may make Leases for life without Licence of Alienation and well proves this cause Yelverton and Hutton For the wast being assigned in a Park it is good for a Park is Land Sed adjournatur Hodges against Franklin TRover and Conversion is brought by Hodges against Franklin The Defendant pleads sale of the Goods in Marlborough which is a Market overt and the Bar was well pleaded and an Exception was taken For that that it is not said that Toll was payed It was said by Hutton That there are divers places where no Toll is to be paid upon sale in Market And yet the property is changed and Iudgement accordingly Grimston against an Inn-keeper IN an Action upon the Case it was said at the Bar and not gain-sayed That they ought to say in the Declaration Trasiens hospitavit for if he board or sojourn for a certain space in an Inne and his Goods are stollen the Action upon that is not maintainable And for omission although the Verdict was given for the Plaintiff Iudgement was given Quod nihil capiat per billam upon fault of the Declaration and he paid no Costs Wilkins against Thomas IT was said by the whole Court That a consideration is not traversable upon an Assumpsit but they ought to plead the generall issue and the Consideration ought to be given in Evidence Ireland against Higgins IReland brought an Action upon the Case against Higgins for a Greyhound and counts that he was possessed ut de bonis suis propriis and by Trover came to the Defendant and in consideration thereof promised to re-deliver him It seemed to Yelverton that the Action would not lye and the force of his Argument was that a Grey-hound was de fera natura in which there is no property sed ratione fundi live Deer and Coneys and vouchd 3 H. 6. 56. 18 E. 4. 24. 10 H. 7. 19. for a Hawk for Hares are but for pleasure but Hawks are Merchandable This difference in 12 H. 8. is allowed so long as a Dogge is in the possession of a man an Action of Trespasse lyes detinue or replevin But no Action if he was out of his possession and so had not a property then there is no consideration which is the foundation of an Action Hutton to the contrary and said the whole argument consisted upon false grounds as that a Dogge is ferae naturae Which if it were so he agreed the difference in 12 H. 8. But he intended that a Dogge is not ferae naturae for at first all Beasts were ferae naturae but now by the industry of man they are corrected and their savagenesse abated and they are now domesticae and familiar with a man as Horses and a tame Deer if it be taken an Action lyes Rogers of Norwich recovered Damages pro molosso suo interfecto And 12 H. 8. So of a Hound called a Blood-hound And a Dogge is for profit as well as for pleasure For a Dogge preserves the substance of a man in killing the Vermine as Foxes And now is not an Horse for the pleasure of a man for a man may goe on foot if he will and an Horse is meat for a man no more than a Dogge Therefore an Action may lye for the one as for the other And for a Hawk he ought to shew that it was reclaimed for they are intended ferae naturae One justifies in 24 Eliz 30. for a Battery because he would have taken away his Dogge from him A Repleavin was brought for a Ferret and Nets and a Ferret is more ferae nat than a Dogge Seale brought 25 Eliz. Trespass for taking away his Blood-hound and there it was said to be well laid And then now if he has a property the consideration is good enough to ground an Assumpsit It is adjudged that a feme dowable The heir promises to endow her before such a day and the Action is maintainable upon that by the Court Intraturudic pro quer if no other matter were shewed by such a day Jenkins Case HE brought an Action upon a promise to the Plaintiff That if he marryed her with the assent of her Father she would give him 20. l. Adjudged a good consideration by the Court. 3 Car. rot 414 Sir Edward Peito against Pemberton SIr Edward Peito is Plaintiff against Pemberton in a Replevin and the Defendant was known as Bayliff to H. Peito and said that H. Peito the Grandfather had granted a Rent for life to H. Peito the Son to commence after his death The Plaintiff confesses the grant but sayes that after the death of Peito the Grandfather these Lands out of which the Rent issued descended to Peito the father who made a Lease for a thousand years to the Grantee and dyes The Avowant confesses the Lease but sayes that before the last day of payment he surrendred to the Plaintiff Vpon which there was a Demurer and the question was whether the surrender of the Lease would revive the rent Harvey If he had assigned the Lease to a stranger the rent had been suspended 5 H. 5. One grants a rent charge who had a reversion upon a Lease for life to commence immediately there the question was when the Lease was surrendred whether the rent now became in esse because that the Lease which privileged the Land from distresse is now determined in the hands of the Grantor himself Crook If the Grantor had granted reversion to a stranger and the surrender had been to him It was clear that the suspension had been for the term Hutton If a man seised of a rent in Fee takes a Lease of Lands out of which c. for years and dyes the
Executor shall have the Land and yet the heir cannot have the rent Harvey In this Court it was the case of one Asham who had a purpose to enclose a Common and one Tenant was refractory wherefore Asham made him a Lease of the soil in which he had Common and afterwards he surrenders it again And it was agreed that the Common was suspended during the term Crook A Lease for years is by the contract of both parties and the surrender may revive the rent but by the surrender the arrearages shall not be revived And suppose that the surrender was by Indenture and a recitall of the grant that is a grant and then it is expresse that by the surrender their intent was that the rent should be revived 3 H. 6. A surrender determines the interest of all parties but of a stranger But it is determined to themselves to all intents and purposes Crook It was one Cooks Case against Bullick intrat 45 Eliz. rot 845. Com. ban It was there adjudged and this diversity was taken If one devise Lands in Fee and after makes a Lease for years of the same Lands to the Devisee to commence after his death it is a countermand of his will if the Lease was to commence presently it is no countermand and the reason is In the first case both cannot stand in Fee the Devise and the Lease But when the Lease commences immediately he may outlive the Lease And this Case is put upon the intents of the parties But Henden This Case is also adjudged If two Tenants in Common are and one grants a Rent charge the Beasts of the other are not distreinable But if a Tenant in Common takes a Lease for years of another his Cattel are discharged again But Yelverton and Hutton doubted that Case and so it was adjourned to be argued c. Thomsons Case THompson libells for delapidations against the Executors of his predecessor and Henden moved for a Prohibition for that that Thompson is not incumbent for his presentment was by the King ratione minoritatis of one Chichley and the King had not any such Title to present for where the King mistakes his Title his Presentment is voyd and he is no Incumbent 6 Rep. 26. Greens Case And Sir Thomas Gawdys Case where the King presented jure praerogat when he had another Title and the present Action was adjudged voyd and whether he is incumbent or not that shall be tryed But by the Court a Prohibition was denyed because that he was now incumbent And the Iudges would not take notice of the ill Presentment of the King But in case of Symony the Statute makes the Church voyd and then the Iudges may take notice of that and grant a Prohibition if the Parson sues for Tythes But if a quare impedit be brought and appears that the King had not cause of Presentment then a Prohibition may be granted which also was granted by all the other Iustices Richard Youngs Case RIchard Young was Demandant in a Formedon and admitted by Prochein amy and the Warrant was allowed by a Iudge and it was certified and entred in Gulstons Office in the Roll of Remembrance but it was not entred in the Roll as the course in the Common Bench is and after Iudgement is given for the Plaintiff And for that Formeden the Defendant brought a Writ of Errour and removed the Record and assigned it for Errour And before in nullo est erratum pleaded And Davenport moved that it might be mended for he said that there was a difference between that Court and the Kings Bench as it is in the 4 Rep. 43. Rawlins Case for the Entry of the Roll was Richard Young came et obtulit se per atturnat suum where it should have been proximum amicum And the Entry in the Remembrance Roll was That he was admitted per Gardianum Richardson said that all the Books are That an infant ought to sue by Prochein amy and defend by his Guardian and so is a Demandant But the Court agreed That that should be amended according to the Certificate As a speciall Verdict should be amended according to the Notes given to the Clerk And Davenport said that he would venture it although it was by Guardian for he held it all one if it were by Guardian or by Prochein Amy. See afterwards more of this The Vicar of Cheshams Case THe Earl of Devonshire had a Mannor in the Parish of Chesham in Buckinghamshire which extended to Latmos where there is a Chapell of Ease and the Vicar of Chesham Libells for Tithes against one of the Tenants of the Mannor And Henden moved for a Prohibition for that that the Earl prescribed that he and all his Tenants should be acquitted of all the Tythes of Land within Latmos paying 10. s. per. ann to the Chaplin of Latmos And he said that such a Prescription is good as it was adjudged in Bowles Case And a Prohibition was granted Wildshieres Case IT was agreed by the whole Court That for Executing of a Capias utlagatum or for a Warrant to Execute it or for a return of it no Fee is due to the Sheriff c. It was afterwards agreed upon an Habeas corpus sued by Wiltshiere who was imprisoned being under-Sheriff by the Lord Chamberlain for arresting Sir George Hastings Servant to the King upon a Cap. utlagat That he may well doe it upon the Servant of the King for it is the Sute of the King himself and he is sworn to serve it and there is no cause of the Commitment returned but only a recitall of the Commitment unless he was released by the Lord. And the Iudges took exception to that and said that it ought to be unless he can be released by the Law and said if no cause be returned they ought to dismisse the Prisoner And they ordered the Keeper to inform the Lord Chamberleiâ— and that their Opinion was and so was the Opinion of all the Iudges of England That he who procured the Commitment of the under Sheriff ought to pay all the Charges and Expences Quod nota Wentworth against Abraham THe Lord Wentworth brought an Action upon the Case against Abraham upon an Assumpsit and declares that the Defendant 1 die Maii Anno Dom. 1625. in consideration that the Plaintiff would permit the Defendant to re-enter in a Messuage and Croft in which the Defendant had dwelt before promised that he would pay to him 30. s. yearly during the time that he should enjoy it And that he permisit ipsum reentrare and that he should enjoy it a year and an half which ended at Michaelmas 1626. And for that he would not pay 45. s. he c. And upon non Assumpsit pleaded it was found for the Plaintiff And it was moved by Davenport in Arrest of Iudgement for that that the Assize is to pay 30. s. Annuatim then before the Action be determined nothing is due and the Plaintiff cannot divide the
Rent 5 R. 2. Annuity 21. Debitum Judex non leperat Then when it does not appear that the Action lyes for the 15. s. for the half year and the Iury assessed Damages intirely it is voyd as 10 Rep. 130. Osborns Case And it appears that by his computation of time it is not a year and an half from the time of the Assumpsit made Richardson said That it is not secundum ratum for then he might divide the Rent and no day is limited for the payment of it for if a Lease be made for two years or at will paying annually at Michaelmas 30. s. and the Lease is determined after half of the year although that it be by the Lessee himself he cannot make any Rent But Yelverton said that that is not a Rent but a collaterall sum And debt does not lye for that And in the Declaration it is said Quod permisit ipsum reentrare and does not say what time which was nought by all but Hutton And it ought to be also that he did de facto re-enter Hutton said There being it is said So long as you shall occupy the Land you shall pay annually c. That he may demand half of the year But the whole Court against him and so Pro hoc tempore judgement was stayed Grange and his Wife against Dixon A Lease was made by Baron and Feme and another Feme and the Lessee Covenants by the same Indenture to find sufficient mans meat and horse meat to the Baron and Feme and to the other Feme or to their Servants at their coming to London at his house in Southwark The Baron and Feme dye and the other Feme takes an husband The Opinion of the Iustices was that he was not bound to find sustenance for the husband but only for the wife or for her servants and not for both at one and the same time because the Covenant was in the disjunctive But it was doubted if he shall find them Victualls for one meal only at their coming or for all the time of their staying there Johnson against Williams and Uxor IT wad said If an Obligation be made by a Feme sole and afterwards she takes an husband and an Action of debt be brought upon that Obligation against the Baron and Feme and they deny the Deed the Baron shall be taken for the Fine as well as the wife for the wife had nothing whereof to pay the Fine And so in Trespasse against Baron and Feme dum sola fuit and they are both found guilty both shall be taken for the Fine which the Prothonotaryes agreed Jeakill against Linne IN a Writ of Covenant the Plaintiff counts upon an Indenture of Lease of the Parsonage of Dale by which the Defendant Covenanted to pay him the Rent the which he had not payed And the Defendant said that before any day of payment of the said Rent incurred one A. Ordinary of the same place sequestred the said Parsonage for non payment of the first fruits Iudgement If an Action c. And by the Court that is not a Plea for he does not shew that any Act was done by the Plaintiff himself in his default Nor he does not confesse and avoid the interest of the Lessor as to say that the Lessor was a disseisor and made a Lease to him after that the disseisee re-entred and so he might confesse and avoid the Lease notwithstanding the Deed indented But he cannot say that the Lessor had nothing at the time of the Lease made And if the Defendant had been bound in an Obligation for the payment of the said Rent in debt brought upon that that should not have been a Plea for he had bound himself to pay the said Rent And the occupation is not materiall where the Lease is for years or for life But otherwise of a Lease at will Davies against Fortescue IF a man it was said be seised of a Mannor whereof there are divers Copy-holders admittable for life or for years and he Leases the Mannor to another for term of life the Lessor may make a Demise by Copy in reversion to commence after the death of the first Copy-holders and that is good enough But the custome of some Mannors is to the contrary and that is allowed Doyly an Infants Case A Man seised of Lands makes a Feoffment in Fee by Deed indented rendring a Rent with a clause of Distresse and afterwards he is bound in a Statute and the day is incurred Vpon which an Execution is awarded to the Conusee and upon the Extent the Sheriff returns that the party was dead and that he had extended the said Rent And the heir of the Conusor being within age because the Rent was extended during his nonage brought an Audita querela and Hutton said That it is maintainable enough because there is an Exception in the Writ of Extent That if Land be descended to any Infant that the Sheriff shall surcease to extend And although that Writ issued against the party himself who made the Conisance yet when it appears by the return of the Sheriff that he is dead the Infant shall be aided by an Audita querela or otherwise the Extent shall be void which is made upon the possession of the Infant Jeffryes Case IN a Formedon the Plaintiff counts of a gift to his Father and to his heirs of his body ingendred during the life of I. S. and makes the descent to him during the life of I. S. And Yelverton seemed that the Writ is good enough for a Tayle may be made so determinable as well as a Fee simple And if a man Warrant Lands to the Feoffee and his heirs against him and his heirs during the life of I. S. That he had a Fee simple in the Warranty determinable upon the life of I. S. So here Warberlyes Case IN a Writ De valore maritagii it was moved by Henden If the Lord shall recover his Damages according to the value of the Land held of him only or according to all his Lands held also of others And Hutton and Crook said that the value of the Marriage shall be accounted as well in respect of the lands held of him as of other lands held of other Lords by Posteriority or in Soccage for there the woman by the Marriage to him shall be more advanced And the better the advancement is the better is the Marriage of the heir and the person more to be esteemed Norbery against Watkins ONe Devises the Mannor of S. to two and their heirs betwéen them to be equally divided so that they shall have part and portion alike If by that they have a Ioynt-tenancy or a Tenancy in common was the Question because there was an Act to be done for making the division And if the words had béen equally to be divided by I. S. it had béen clear that they had béen Ioynt-Tenants But Harvey said That upon such a gift made to them if the
demanded are material Because it is demandable in a Collateral place out of the Land charged Crook Grant of a rent and that I pay it at Michaelmas allwaies if it be demanded at my House there ought to be a demand And suppose it was to be demanded in such a place upon the Land I conceive the demand ought to be made accordingly Yelverton A Lease was made rendring a rent payable at such a day upon Condition that if the rent be not paid at such a day without demand That the Lessor may reenter And adjudged that no demand is now requisite For modus et conventio vincunt legem c. Sed adjurnatur Wolfes Case before THe Plaintiff was an Attorney who sued by attachment of Privilege And now the Court would not permit the amendment Because there was a material Error for it is to the disadvantage of the King For if the party be non-sute or a verdict passes against him the King shall have a Fine for false clamour and may recover them against the pledges But now where it is the Act of the Court or of the Clark or Attorny and not the party himself there may be amendment As warrant of Attorney may be entred after the Record removed And although that pledges were entred upon the Issue roll where it ought to have been upon the Imparlance roll But not on the contrary For the Issue roll is the inferiour Harvey If a Sute be by Bill as an Attorney being Defendant there are alwaies pledges entred in the Bill But if by Attachment also as so Then the Declaration is the Original Crook 12 Eliz. Dyer There Iudgement was reversed for want of Pledges And although that Case was before the Statute of 8 Eliz. yet that Statute does not ayd substantial Errors And in one Husseys Case in the Kings Bench That was adjudged for Error Wilknsons Case CRew moved that two were bound in a Statute and one dies his Heir within age That the extent shall demur Because that usura recurrit contra haeredem infra aetatem existentem And he cited 17 Ass 24. by Mawbrey And so it was agréed by the Court. And Richardson said That in that respect the Statute is an ill assurance Quod nota Waddingtons Case AYlâ—ff moved for a Prohibition for one Waddington for that that he was executor and was sued in the Councell of York upon an Obliligation for the payment of a Legacy And he alleges that a Lease which was put in the Inventory was aliened to him by the Testator in his life time And so the Question will be whether that should be Assets which ought to be tryed at the Common law And therefore prayed a Prohibition Richardson said The Councel of York have power of all Obligations And therefore having Iurisdiction of the principal they have Iurisdiction of the accessary Davenport It is seen that they may proceed upon an Obligation of all sums If they procéed Suo genere as in the Court of Equity But if a thing tryable at Common law as Assets or not Assets come they cannot proceed c. Richardson If a Sute be there for a Legacy and payment be pleaded they may try that But if they meddle in matter of Title then a Prohibition shall be granted Hutton There hath been many motions upon these Ecclesiastical Obligations for Prohibitions and allwaies they were denied And so it was in this Case Comins Case IN one Comins Case it was agreed by the Court That a Subiect may have a Forest But cannot have a Iustice Seat But he may have a Swanmark Court and the other Courts and a Commission to execute them Then a Forest in the hands of a Subject shall pay Tithes And it was agreed that in the hands of the King it is privileged And by Henden Davenport and Atthowe Sergeants It is only his personall privilege which extends to the Lessee of the King But not to the Feoffee And it was agréed That where the right of tithes comes in Question between a Parson and the Vicar who are both Ecclesiastical persons It shall be tryed by the Ecclesiastical Court But Richardson said the Books make a doubt Where it is between the Servant of the Vicar and the Parson But it seemed to him to be all one Margery Rivets Case before RIchardson Hutton and Harvey said That the Devastavit ought to be to Margery for Necessity sake For it cannot be intended otherwise For none can satisfie the Debt but Margery And the intention of the Replication was to charge her de bonis prop. for waste and no other can be intended to waste And the Case put of I. S. so being seised feoffavit There it is good without praedict I. S. But for the thing it ought to be Feoffavit inde 21 H. 7. There if W. S. be named again It shall be intended the same W. S. if there be not quidam I. S. and then otherwise and also it is much mended by the Replication For there it is ipsa Margareta non devastavit But Crook and Yelverton on the contrary according to their reasons before that no Issue is joyned And then the Statute does not ayd it For there is not any Nominative Case to which it may referre If it had been quo die Margery habens bona devastavit had been good But being bona habuit no Grammarian can make Construction of it And the Replication or Declaration ought to be certain to all intents 27 H. 6. 3. Wrotesleys Case In an information of Tithes It was said That the Defendant cognoscens him to be in sute being ruled that Congnoscens is not positively an affirmation but it ought to be cognovit And Iudgement was had upon it and yet after for that fault reversed 1 R. 3. There the Case was After verdict was entred that the Iury appeared et electi triati dicunt super sacramentum suum There it was reversed because it was not lurati and yet that was implyed by sacramentum strongly But Implications ought not to be allowed in Replicatious then we should introduce so many incertainties But by Crook Iudgement shall be given against the Plaintiff upon his own Replication For that that the waste is supposed after the Son came at full age and then the Administration that determines And Iudgement was given for the Defendant Roberts and others ROberts and others in East Greenwich were cited in the Spiritual Court to pay mony that the Wardens had expended in reparation of the Church And the Inhabitants alleged That the tax was made by the Church-wardens themselves without calling the Free-holders and also that the monys were expended in the re-edifying of Seats which belonged to their several Houses And they never assented that they should be pulled down And now that allegation was not allowed but sentence was given against them And then they appealed to the Arches where this allegation was also rejected And for that he prayed a Prohibition And the Court agreed That the
tax cannot be made by the Church-wardens But by the greater number of the Inhabitants it may and a Prohibition was granted But by Yelverton If it be cited by ex Officio a Prohibition will not lye For so it was ex insinuatione c. For the Wardens came and prayed a Citation c. But by Richardson Harvey and Crook privately a Prohibition will lye in both Cases Commin against Carre COmmin brought Trespass against Carre for taking of two Heifers The Defendant pleads that the King was seised of a Wapentake in Yorkshire And had so large Iurisdiction as another Turn of the Sheriff And then he said that the Plaintiff plaid at Cards within that Wapentake in the House of such an one and said that that is contra formam Statuti 33 H. 8. ca. 9. And said then that he plaid at Cards another day And thirdly that he broke a Pin-fold c. And that the 24 Martii 21 Iac. warning was given to the Plaintiff he being an Inhabitant for a year before within the Iurisdiction of that Court that he ought to appear the last day of March following And said that the Court was then held and those offences were presented and that for his not appearing he was amerced 12 d. and for the playing 6 s. 8 d. and for the breaking the pound 3 s. 4 d. And now for all those amerciaments he distrained by vertue of a Warrant of the Steward of the Court and does not say what warrant And then justifies the selling of the said Heifeâ—s for 20 s. and that he retained 17 s. and offered the surplusage to the Plaintiff Atthow there is not any thing to prove any sorfeiture by the Plaintiff For the Statute is upon two branches First That no Common house of play be kept Secondly If any use those Houses and play c. That it is not said that that is a Common house of play But then it will be said that it is alleged contra formam Statuti and that will imply that But now that is not sufficient For if any inform contra formam Statuti If by his own shewing it does not appear contra formam Statuti He shall not have Iudgement Richardson A Common house of play is a House for lucre maintained for play And there the Law makes a difference between Common persons and private c. But contra formam Statuti will not serve For the offence ought to be alleged fully Yelverton made four causes of Distress selling the Distress If it be good for any it is sufficient And if there be a Iustification for three causes in Avowry If it be good by any It is sufficient 9 H 6. But so it is where a trespass c. Harvey A Iustification in a Leet That he distreyn'd and sold and delivered the overplus to the party in the Case of the King it is good But in the Case of Common persons I doubt whether he may sell And in the Case of the King he ought to deteyn the distress for 16 daies before sale But by Yelverton and Hutton All Leets are the Courts of the King and they may be used as the Courts of the King And it was said afterwards by Richardson That the Statute was grosly mistaken And that divers amerciaments were wanting And so Iudgment for the Plaintiff Traver against the Lord Bridgewater et Ux. TRavers brought an action upon the Case against the Lord Bridgewaters and his Wife Administratrix of T. D. her Husband deceased For that the said T. D. in consideration that the said Travers tradidisset deliberasset to the said T. D. divers Merchandizes he promised to pay c. The Defendant pleads that the said T. D. non assumpsit And 't was found for the Plaintiff and pleaded in Arrest of Iudgement that it was no Consideration And adjudged for the Defendant For when he said tradidisset deliberasset That they might be his own Goods Otherwise if he had said vendidisset de novo E. 4. 19. Accordingly Palmers Case IT was held by the Court If a man assume to pay mony due in consideration to forbear to sue him paululum temporis And if he forbear for a convenient time It is a sufficient consideration upon which to ground an Assumpsit The case was between Palmer and Rouse P. 40 El. rot 537. The Plaintiff counts that I. S. was indebted to him upon an Obligation and he forfeited it and dies and made the Defendant his Executor And that the Plaintiff was forced to sue the Obligation and in consideration of the premises The Defendant assumed that if the Plaintiff would forbear him pro brevi tempore that he would pay him And the Paintiff fidem adhibens c. forbore 4 years to sue him and said that the Defendant had Assets The Defendant said absque hoc that he had Assets And upon that the Plaintiff demurred and adjudged for him For the alleging of Assets in the Count is surplusage And now the consideration was sufficient for he had counted he had forbore for four years Panton against Hassel PAnton brought an action upon the Case of trover and conversion against Hassell who declared That whereas he was possessed of certain Iewels 16 April he lost them and 20 Ian. they came to the hands of the Defendant and he converted them And this was supposed to be done in Huntingtonshire The Defendant pleads that time out of mind c. the City of Bristow is and hath been a Market overt in Shops et locis apertis and the Defendant bought them in his Shop And further shews that he is a Gold-Smith by reason of which he was possessed of them as his proper Goods and converted them to his own use which is the same conversion Hutton When the Defendant had supposed an absolute property by the sale in the Market overt that Conversion after cannot be a Conversion of the Goods of the Plaintiff For of necessity there ought to be a mean time between the change of the property and the conversion Also the Custome is naught for he ought to say in locis apertis shops apertis For the cause of the change of the property is Because every one may come thereto and see if they are his Goods and there challenge them So that by some intendment in this prescription that Shop might he a private Shop And although that it be averred in facto that that Shop is apert Yet when the prescription is mislayed the Bar is naught For if Issue be taken que fuit shop apert That is not a good issue Also he prescribed that there was a Market overt every day except Sunday and Festivals and that it was not Sunday or Festival where it should have been nec Festival per que c. Harvey said That word apertis shall have relation as well to shops as to locis Hutton at Newgate Sessions seven of the Iustices being present there was a Question That if a man having Cloath
stollen from him and that was sold in a Scriveners Shop Resolved that there was no change of the property For by intendment if a man had Drapery stollen from him he would not seck it there So if a man fells stollen Plate and sells it in the High street under his Cloak It does not change property And if a man sells a thing in a Silkmans Shop in London the Curtain being drawn That does not change the property And now to the principal Case Although he said that he was a Goldsmith and that that was his Shop It is not necessary to be intended that he used the Trade of a Goldsmith in it And that ought to be averred For every Shop is a Market overt for these Causes only which appertain to the same trade Williams against Bickerton VVIlliams brought an action upon the Case against Bickerton for saying He hath forsworn himself and I le teach him the price of an Oath for I will have his Ears cropt And it séemed that it lay For although it was not said at the beginning where it was that he forswore himself Yet by the circumstance it shews that he was in such a place for which it was punishable And M. 29 30 Eliz. Dantsleys Case Thou art a Pillary Knave remember that thou hast deserved the Pillary and the Action maintainable And the Plaintiff paid the Box for his Iudgement Bradyes against Johnson BRadye brought an Eject firm against Johnson and declared upon a Lease of Land habend a die dat Indentur praedict And does not speak of any Indenture before And for that the Declaration adjudged naught And so it was betwéen Bell and March. And this same term between Spark Where it was shewed quod concessit per eandem Indent Where he had not spoke of any Indenture before Lowen against Cocks IN Debt by Lowen against Cocks the Case was thus A man seised of an house in St. Edmonds Parish in Lumbard-street in London devises it to his wife for life the remainder to his Son George and if he dye without Issue then to Iohn and Thomas his Sons equally and to their Heirs The wife dyes George dyes without Issue l. and T. make a Lease for years rendring 5. l. to the one and 5. l. to the other l. devises the reversion to his wife and dyes and for that Rent the Action was brought by the Wife And the Question was if they shall be Ioynt or Tenants in Common For if joynt the devise of the Reversion is void And Secondly If by any Act which makes partition viz. the several Limitations of the rent to them If séemed to Hutton that they are Tenents in Common By reason of that word equally which in it self makes a Division In 33 Eliz. in Boucher against Marsh It was held that where a man devises Lands to three Children equally to be divided they are Tenents in Common And so it was 14 lac in case of Goods And it is clear as it is said If a Man devise 100 l. to two equally the Executors shall pay 50 l. to the one and 50 l. to the other For if that word equally does not make tenancy in Common it shall be all otherwise void And every word of a Will ought to be of some force And in these Cases the word divided was not the force of the matter but only equally And it was the Case of a Shepheard in the Courts of Wards Where a man devises that after the death of his Son all my woods shall remain equally to his Daughters and their Heirs of their bodies And it was there held by Dyer and Manwood that they were Tenents in Common If Parceners agrée to hold by That is sufficient partition And if the one Ioyntenant confirms to the other that does not give any thing but severs the Ioynture Harvey to the contrary First They are Ioint For Ioynture is the greatest equality for every one is seised by himself and the one hath as much of the profits as the other And so equal interest and equal benefit to the Survivor 6 E. 6. in Dyer A difference was taken between a Demise to two when it is said equally divided That they shall be Tenents in Common If equally to be divided they shall be joynt But it was never adjudged 17 Eliz. A man having 3 Sons devises Lands to them equally to be divided The Question was what estate they had For if the younger had not a fee they could not have an Estate equal with the eldest for he had a fee. Resolved that they shall have a fee-simple and also that they shall be Tenents in Common And held that to be divided and divided was all one And it was held also that the word divided makes the Tenancy in Common and not equally 2. As to that reserve of 50 l. to the one and 50 l. to the other clearly being a joynt Lease and a joynt reversion And the Rent as accessary to the reversion and shall not change the nature of it Yelverton They are Tenents in Common A Will shall be construed according to the intent of the Testator And exposition shall be made of the words to supply his intent Tomlins's Case IT was agreed by all That if one sojourn in the House of another and the House is broken in the night and the Stranger robbed in the House without being put in fear of his life In law He that robbed shall have his Clergy notwithstanding the Burglary For it is out of the Statute of 5 6 of E. 6. cap. 9. Dicksons Case AT Sergeants Inne in Chancery lane this Question was debated If a man steal Goods and the very Owner makes fresh sute to take the felon So that he waives the Goods and flies And before the Owner comes the Goods are seised as Goods waived and af-the Owner comes and challenges them Now if he shall have them or they shall be forfeited was the Question And it was held by Harvey and Crook That they are not at all forfeited for that the Owner had done his endeavour and pursued from village And that the Goods shall not be said to be waived but where it cannot be known to whom the property is Hutton Chief Iustice and Yellerton said That Goods waived shall be said those which are stollen and that the Felon being pursued for danger of apprehension waives and flies Now if they are seised before that the Owner comes the property is presently altered out of the Owner in the Lord although that he made fresh sute If that Sute was not within the view of the Felon allwaies But they all agreed if the Felon do as not flye but is apprehended with the Goods That then the Owner shall have his Goods without Question Or if the Owner comes and challenges the Goods before seisure and after the flight of the Felon Harvey said The Statute of 21 H. 8. cap. 13. does not remedy any thing as to the restitution of the Goods stollen But upon
have come to full age the fourth day after The Court agreed that one may be non-suited the Essoyn day and if he confess an Action that day it shall be good And thereupon Iudgement was given that by the relation the Statute should be avoided c. Crookes Case A Feme sole leases at the will of the Lessor and after the Feme takes an husband If by the taking of the Baron the will of the Feme be determined and it was thought not Fenne against Thomas Hil. 3 Car. Com. Banc. A Man inhabiting in the most remote part of England was arrosted eight times by Latitat and no Declaration is put in Banco Reg. And the Counsell prayed Costs for the Defendant The Prothonotary said that he shall not have Costs unless he come in person But Richardson said on the contrary and he shall have Costs for it appears that he had been put to travell and a day given to shew cause why the Costs shall not be given Spark against Spark SPark brought an Ejectione firmae against Spark for lands in Hawkschurch in the County of Dorset The Case was a Copy was leased for a year except one day and that was found in the Verdict to be warranted by the Custome The sole Question is if an Ejectione firmae lyes And by Hutton If Tenant at will makes a Lease for years an Ejectione firma lyes but if it be a Copy-hold for years an Ejectione firmae will not be maintained Deakins's Case IT was said at the Bar and not gain-sayed If a man perjure himself against two the one by himself cannot have an Action upon the Statute but they ought to joyn for he is not the only party grieved Bentons Case A Man Leases for life and afterwards Leases for years to commence after the death of the Lessee for life rendring Rent the Reversion is granted Tenant for life dyes Lessee for years does not attourn And it seemed That the reversion passes without Attournment And he shall have Debt or shall Avow Williams against Thirkill AN â—…ion of Debt was brought by Williams against Thirkill Executor of I. S. who pleads a Receipt against him of 300. l. over and above which non c. The Plaintiff replies that the receipt was by Covin And so they are at issue and it was found for the Plaintiff and judgement was entred de bonis Testatoris And it was said by the by in this Case That Debt by Paroll may be forgiven or discharged by Paroll Ploughman a Constables Case PLoughman a Constable suffers one who was arrested pro quadam felonia antea fact to Escape And because it is not shewed what Felony it was and when it was done for it may be it was done before the Generall Pardon the party was discharged Hobsons Case VPon an Indictment of Forcible Entry Quod ingress est unum Messuag inde existens liberum Tenement I. S. And because he does not say Adtunc existens and without that it cannot refer to the present time scilicet of the Indictment He was discharged Sir Thomas Holt against Sir Thomas Sandbach SIr Thomas Holt brought Trespass against Sir Thomas Sandbach quare vi armis Because whereas the Plaintiff had used time out of mind c. to have a Water-course by the Land of the Defendant So that the water run through the Land of the Defendant to the Land of the Plaintiff The Defendant he said had vi armis made a certain Bank in his own Land so that the water could not have his direct course as it was wont to have Harvey It séems to me that the Action does not lye For a man cannot have an action of Trespass against me vi armis for doing of a thing in my own Soyl. But Trespass vi armis lyes against a Stranger who comes upon the Land and takes away my Cattell And such like things but not in this Case But he may have an Assise of Nusance As in Case where one makes an House joyning to my House So that it darkens my House by the erection of a new House I may have an Assise of Nusance against him who does it But Crook was on the contrary But it séemed to Richardson that he shall have Trespass on his Case but not vi armis And to that which hath been said That if one build a House to the nusance of another upon his own Land That he to whom the nusance is done may have an Assise of Nusance that is true And also if he will he may pull and beat down such an House so built to his Nusance if he can do if upon his own Land But he cannot come upon the Land of the other where the Nusance is done to beat it down per que c. Hutton of the same opinion By which it was awarded that the Writ shall abate And he put to his Action upon the Case Hitcham moved a Case to the Iustices One I. by Indenture covenants with an other that he should pay him annually during his life 20 l. at the Feast of St. Michael or within 20 daies after 10 l. and at the Feast of our Lady or within 20 daies after 10 l. The Grantée before the 20 daies passe and after the Feast of our Lady dies If the Executors of the Grantee shall have the Rent or not And the Iustices Hutton being absent said That it was a good Case And said that the Executors shall not have it Because it is not at all due untill the 20th day be past Fawkners Case A Lease was made to one for 40 years the Lessee makes his Testament and by that devises it the term to I. S. for term of his life if he shall live untill the said term be expired And if he dies before the years expire then the remainder of the years to F. for term of his life and if he die before the term be expired the remainder of the years to the Churchwardens of S. I. If the remainder to the said Church shall be good or not was the Question Because that the Wardens of the Church are not coporate so that they may take by that Grant Hutton and Harvy said that the Remainder was not good to them And said that the first Remainder was not good Peters against Field A Bill obligatory was shewed to the Court in Debt brought upon it And in the end of the Bill were these words In witnesse whereof I have hereunto set my hand and he had writ his name and put to his Seal also And because no mention was made in the Bill of no Seal to be put to the Bill It was moved to the Iustices If the Bill be good or not And it was agreed by the whole Court that the Bill was good enough Tomlinsons Case A Parson makes a Lease for 21 years The Patron and Ordinary confirm his Estate for 7 years the Parson dies The Question is Whether that confirmation made the Lease good for 21
appear gratis if he will Warner against Barret ELizabeth Warner libells for a Legacy in the Spiritual Court against one Barret who moves for a Prohibition Because he had there pleaded plene administ and proved that by one Witness and they would not allow it Richardson before the Statute of E. 6. The proper Sute for Tithes was there and they allow one Witness to prove payment a Prohibition shall be granted And he put Morris Eatons Case in the Bishop of Winchesters Case Where it was ruled if the Spiritual Court will not allow that plea which is good in our Law a Prohibition shall be granted as in Case of Tithes And he said that the Case of a Legacy is all one Crook When one comes to discharge a thing by due matter of Law and proves it by one Witness If it be not allowed no Prohibition shall be granted there Richardson Our Case is proof of plene Administ pleaded which goes in discharge But if there be enough pleaded which goes in discharge and proves that by one Witness and not allowed A Prohibition shall be granted Hutton said that properly for a Legacy the sute is in the Ecclesiastical Court although they may sue in the Chancery for it yet the proper Court is the Ecclesiastical Court And they said they used to allow one Witness with other good circumstantial proofs If they be not in some criminal Causes where of necessity there must be two Witnesses In one Hawkins Case Farm or of a Propriation libells for Tithes of Lambs for seven years And there he proved payment by one Witness and a Prohibition was granted for not allowance Yelverton There may be a difference where the Sute is meerly Ecclesiasticall for a sum of mony as for a Legacy there the payment of the legacy is of the nature of the thing And the Ecclesiastical Court shall have Iurisdiction of the proof and matter But if one gives a legacy of 20 Oxen And the other pleads payment of as much mony in satisfaction there they cannot proceed but upon Common law For that that the legacy is altered And if a proof of one Witness is not accepted a Prohibition shall be granted For now it is a legal Tryall 35 H. 6 If the principal is proper for their Court the accessory is of the same nature Also the Sute is commenced for a Legacy and the other pleads plene administ There they proceed upon the Common law For they sometimes take that for Assets which our Law does not take It was adjudged in the Kings Bench that a proof by one Witness of a Release of a Legacy was disallowed a Prohibition shall be granted Crook In this Case a proof of setting out of Tithes by one Witness a Prohibition shall be granted Hawkeridge's Case IT was agréed by all in Hawkeridge's Case That in a forcible entry or Trespass brought against one If the Defendant is found guilty by verdict and before Iudgement the Plaintiff releases to him Because that by that the Plaintiff is barred The King is also barred of his Fine Falkners Case ATthow Sergeant said That if these words were wanting in a Déed In cujus rei Testimon That the Déed is not good And he said that all Covenants Grants and Agréements which came after those words in a Déed are not of force nor shall be pleaded as parcell of the Déed It was observed by the Court That the Wife of a Duke Earl or Baron in all writings they shall be named Ladies But the Wives of Knights shall be named Dames And it was likewise observed that if a Wife of a Duke Earl or Baron takes a new Husband of a more base degrée That she loses her name of Dame or Lady and shall be named in every Writ according to the degrée of her Husband As it happened in the Case of the Lady Johnsons Case IT was said if a Parson leases his Rectory for years or parcel of his Glebe reserving a Rent and dies his Successor accepts she Rent That acceptance does not make the Lease good Because by his death the Franktenement is in abeyance and in no Man And also a Parson cannot discontinue And by consequence That that he did without Livery is determined by his death And it is not like to the Case of an Abbot Prior or Tenent in tayl Joyce Norton and Thomas Ducket against Harmer IOyce Norton and Thomas Ducket Plaintiffs against George Harmer the Vicar of c. In a Prohibition the Libel was for Wood imployed in Hedging and for Fire-wood Issue was joyned that there was in the Parish a great quantity of Land inclosed And that they used to take Wood for Hedge-boot and Fire-boot and they were discharged of Tithes in consideration that he payed Tithes in kind of Hay and Corn c. And it was found for the Defendant Crowley moved That a Consultation cannot be granted for that that they ought to be acquitted of Tithes for those of Common right And for that although prescription was alleged it is nothing to the purpose Atthowe For Fire-wood it was proved that Tithes alwaies were paid Richardson There is no doubt but the discharge also ought to be by Custome and to be grounded upon modus decimandi Yelverton and Crook otherwise that it is not upon modus decimandi But by the Common law And the reason is for that that when a man is Owner of arable Land and he pay tithe-milk and Corn And for that they are discharged of things consumed in the House Which are to make Masters and Servants fit to manure the Land c. Richardson said It is seen that it shall alwaies be discharged in consideration it is alleged how a small consideration will serve Crook It is not modus decimandi but the discharge is for that that the Parson for them had a benefit for he had by them better means of Tithes Hutton If a man had an House of Husbandry and demises all the Lands but the House He shall pay tithes for them absumpt in the House Crook not No profit is made by them to the party but the Parson had a benefit by him And a day was given to search Presidents Bibble against Cunningham BIbble brought an Action upon the Case against Cunningham and declares That there was a Communication between him and the Defendant of the sale of a Banck and an acre of Land And that in consideration thereof and that the Plaintiff would assure and deliver to the Defendant possession of all the Banck assoon as he could and that at all times upon request to be made to the Plaintiff by the Defendant the Plaintiff would become bound in a Statute Merchant to make the Assurance to the Defendant The Defendant promised to pay to the Plaintiff 72 l. at the end of 3 years from Michaelmas next ensuing And that in the mean time for the forbearance he would give after 8 l. in the 100 l. and that he became bound in a Statute Merchant for the
payment of 72 l. And he alleges that the Defendant did not become bound in the Statute but that he himself delivered possession as soon as he could And upon non-assumpsit pleaded it was found for the Plaintiff And Atthowe moved in Arrest of Iudgement It is not a good consideration or promise He said that there was a Colloquium and an Agreement and in Consideration thereof c. That is not a good Consideration And the second Consideration that he delivered c. tam citius quam potuit It is not good for it is uncertain For it may be a year or two years or a day after And the other promise to pay 8 l. in the hundred deferendo diem And there is not any deferring the day for it is not shewn that it is due before and that he shall be bound in a Statute and that no sum is expressed which is uncertain Richardson There is a good Consideration and a good promise There was an Agreement touching the sale of a Banck and an acre of Land and take all alike and that perfects the Agreement And it is plain that the Agreement was for 72 l. and the delivery of the possession or making of assurance is not any Consideration But the promise is all the Consideration And he might have omitted the averment of the delivery of the possession But there is a cross and mutual promise upon which the Action might lye As many times it had been adjudged in this Court and in the Kings Bench. And for the words tam citius quam potuit the Law appoints the time scilicet so soon as he can go remove his goods things out of the House c. As in Case where one sels goods for mony the Vendee shall have for telling the mony And so here at the most till request be made And although it is not expressed in what sum he shall be bound by the Statute Yet it appears that it is for the payment of 72 l. And then the sum ought to be double in which he is bound As if one arbitrate that he pay 72 l. and enters into an Obligation for the payment of it That shall be in the double sum In which Case he said that he could shew several Iudgements of it Crook If one promise to me divers things some of which are certain It is good But also for the time of the delivery there the Law adjudges of that And the sum of the Statute shall be double as it had been said But for the Case of the Arbitrament it is adjudged contrary as 5 Salmons Case And admit that it be uncertain It is a reciprocal Assumpsit and an Action will lye upon that Hutton If a promise to enter into an Obligation there ought to be a reasonable sum as the Case requires for it And in this Case it being in a Statute which is more penal than an Obligation I conceive the same sum of 72 l. will serve And for the time of the delivery of the possession It ought to be in convenient time or upon request As 2 H. 6. And the Law adjudges of the inconveniences of time And although that he fails in the sum of his promises the end of his promise is good enough and the other is not concluded by that Action But he might allege other considerations in actions brought by him Yelverton There is but one promise against another And the sum in the Statute ought to be the same sum As the Case where an Annuity is granted of 20 l. untill the Grantee be advanced to a benefice That ought to be a benefice of the same value But I doubt whether it should be double Harvey It is there by way of promise And then one promise is the consideration of another and there is no breach for it ought to be upon request And then the Action being brought upon that side the request cannot be alleged and one promise good against another Then be the sum what it will ought the Defendant to be bound single or double The Assumpsit not being performed all agreed that the Action well lies A Verdict against an Infant NOte that it was said If a verdict pass against an Infant and the Defendant dies after verdict and it is shewn Iudgement shall not be given against him For the Court does not give Iudgement against a dead man and that is matter apparent and the other is doubtfull matter Fortescue against Jobson A Man seised of certain Lands hath Issue two Sons and devises one part of his Land to the eldest Son and his Heirs and the residue to the youngest Son and his Heirs And if both dye without Issue that then it shall be sold by his Executors and dyes The eldest Son dies without Issue And the opinion of Hutton That the Executors could not sell any part before that both are dead For the youngest Son hath an Estate tayl in Remainder in the part of his eldest Brother So that the Executors cannot sell it And if they do sell it yet that shall not prejudice the younger Brother So long as he hath Heirs of his Body Richardson said That although that the eldest Son aliens and after dies without Issue That the Exâ—…cutors may make sale For that that no interest was given to them But only an Authority to sell the Lands Dicksons Case A Writ de partitione fac against two the one appears and grants the Partition the other makes default Hutton said a Writ shall issue to the Sheriff to make Partition but cesset executio untill the other comes For Partition cannot be by Writ but between the whole Otherwise it is of Partition by agreement Rothwells Case IF a Man makes a Lease for life and the Lessee for life makes a Lease for years And afterwards purchases the reversion and dies within the Term yet the Lease for years is determined And the Heir in reversion may oust him and avoid But if one will make a Lease for years where he had nothing and afterwards purchases the Land and the Lessor dies If that be by Deed indented The Heir shall be estopped to avoid it By Hutton Crook and Richardson Sir Charles Foxes Case THe Case of Sir Charles Fox was now moved again by Henden It was objected that there ought to be an express demand at the day or otherwise he ought not to distreyn But first it appears that he had a good Title to the Rent then there being a verdict found he ought to have Iudgement upon the Statute But not admit that Yet the Demand is good for the words are legitime petit and no time expressed And although the Demand is after the day yet it is sufficient for all the arrerages for the words are tunc et ibidem but c. And the Difference is between the Demand which intitles to the Action and to the thing it self Maunds Case 7 Rep. 20. 40 Eliz. between Stanley and Read Where it was agreed That the day
of Westminster And adjudged that they were not Because that it is expresly limited to those Courts in a branch of the Statute of 37 H. 8. cap. 9. In one Fosters Case 11 Rep. it is plain that Affirmative words cannot take that from those Courts at Westminster For those are excepted by the Law If this Statute extends to take the power given to another Law you will repeal former Statutes without express words And there is a good rule take 18 Eliz. Dyer 247. pl. 12. which see Thirdly It ought to have been pleaded For to deprive the Court of Iurisdiction A motion does not stand with the intention of the Statute or the dignity of the Court. For because the Court had a general Iurisdiction it cannot be ousted of that without pleading upon 31 Eliz. Richardson said that this Case is upon consideration of 3 Statutes 21 Jac. 23. 33 H. 8. By the Statute of 21 Iac. Where the Iustices of the Peace had some power upon Informations There Courts at Westminster are bound up For that he said to Henden That he did not well understand him in his second point But he said I hold That if that Court only from the time of the making of 21 Iac. had power Then it is clear that it so remains now But if this Court had the sole power Then the same Informations may be so either before the Iustices of the Peace or of Oyer and Terminer Then the Iurisdiction of this Court is ousted by 21 Iac. For the words are in that plain It was not the intention of the Statute to inlarge the power of the Iustices of Peace but to confine those things to them Pasc 4 Car. Com. Banc. So that here will be the Question whether the Iustices of the Peace at the time of the making of 21 Iac. might take Informations against Brewers upon the Statute of 23 H. 8. before to avoid the vexation of the Subject That he shall not be lyable to the Information at Westminster and in the Country too But that the Statute ought to favour For when such persons were subject to many informations they would be more afraid So that all the question will be upon the 33 H. 8. And admit that Beer-brewers are within that Statute yet the jurisdiction of that Court continues before the 21 Jac. Then that construction does not repeal the former Statute as it was taken by Henden But both may stand and the Statute of 37 H. 8. alters only the six wéeks sessions and gives the power at the general Sessions So the case may rest meerly upon the word Victuallers within 33 H. 8. First then if they are within the words which is proved by the Statute 23 E. 3. 4 H. 4. cap. 21. which Statute confounds Victuallers and sellers of Victuals and 21 H. 8. cap. 17. Which says precisely that Beer-brewers and Bakers which have been Victuallers But whether they are Victuallers within the intention of the Statute is the doubt They may be within some Statute of Victuallers and not within others For if he brew their beer unwholsomly he may be punish'd but not by Information And it was well observed that the words That they ought to put in execution certain Laws which ought to be intended such in which they had Iurisdiction before It was said that Brewers are not like to a Graster Butcher or Miller for they prepare that which is made Victuals by others but beer is beer in the hands of the Brewer immediately and nothing is done to it afterwards to make it more beer But a Brewer although he be a victualler in general yet not being particularly named he is not within the power of a Iustice of peace Butcher Fishmonger and by the Statute of Rich. 2. Vintners are Victuallers and are these within this Statute Certainly not But because that Inne-holders are named there ought to be other words And there are Alehouse-kéepers and Cooks For all sellers of victuals are not within that Law nor Brewer nor Baker which are particular trades of themselves And if it had béen intended that they should have béen within the Statute the Law would have named them And Crompton and Lambert naming Brewers in their charge is by the Common Law For that that for the unwholsomness of their Beer in their Assize they are inquirable by presentment But by that it does not follow that a Iustice of peace may take information of them Now the question is upon 33 H. 8. In generalty Brewers are Victuallers There is one Statute which enacts that no Mayor shall be a Victualler And afterwards there is another Statute made that he may be a Mayor although he was a Victualler So it was intended that they were Victuallers for they prepared Victuals But yet it is not within this Statute for it appears by the preamble that he is to enquire of things whereof they had power before either by the Statute or by the Common-Law but it was not the intention to give them other authority They may enquire of a combination in their prizes and such things but not by information Then when the Statute gives power to execute it does not give power of new things because c. Harvey argued to the like purpose but said that the Iurisdiction of these Courts ought to be preserved as much as may For the true execution of the Law is in these Courts For in the Country if an Informer inform against his neighbour he will compound the matter and so the King shall lose his profit of the penal Laws And so the Statute is made as a stawking horse to help a friend Crook It is true that Brewers shall be construed to be Victuallers secundum subjectam materiam Trin. 4 Car. Com. Banc. as the Statute is of shipping of victuals out of the Land Beer shall be within that Statute And he argued in omnibus as before Wherefore I doe not report it at large But he said that the Statute of 21 Jac. was upon the matter of all penal Statutes repealed because that it was so ill executed in the Country And so Iudgement was given for the Plaintiff Howsons Case A Libel was against Howson the Viccar of Sturton in Nottinghamshire in the high Commission Court at York Because that he was not resident but lived at Doncaster and neglected to serve his cure And that divers times he when the high Court visited spoke so lowd that he was offensive to many and being reproved for that he gave a scornfull answer And that there was one Wright in the Parish who had a seat in the Church and that the Vicar would spit in abundance in the seat and that when Wright and his Wife were there And that afterwards he said with a common voice That the Wife of Thomas Howson was as good as the wife of Wright And that in his Sermon he made jests and said That Christ was laid in a Manger because he had no money to take
reference to the Authority for otherwise the Lessee shall not be attendant to the Tenant for life As suppose at the first the limitation was to the Lessee for life the Remainder to Iacinth c. rendring Rent he in the Remainder shall never have the Rent But in this Case it is otherwise Holmes against Chenie IN an Assumpsit the Plaintiff declares that there was an account between him and the Plaintiff of divers sums of mony And it was found that the Defendant owed to the Plaintiff 3 l. And upon that he promised being required he would pay it And in arrest of Iudgement it was said Because the Plaintiff does not shew for what thing the mony was due the Declaration was naught To which Atthowe answered That if it was upon an indebitatus Assumpsit generally that the Action will not lye although there had been many Presidents ante hac to the contrary But in Case you will give a years day to pay upon which the Defendant assumes the Action will lye But there is a difference upon that and our Case put That one was indebted upon a reall contract and other things and appears by account that upon all Debts 40 l. is due c. Now by that the promise is upon the Account and that had made all certain Yelverton There cannot be a debt upon an Insimul computassir without shewing of what nature the Debts were Richardson An account cannot be of a thing certain Debt upon an Obligation is and rent certain And if those with other things come in Account and upon that an Action is brought what shall be pleaded by the party upon the specialty Crook Debt certain does not lye in Account But suppose that part of the Obligation is payed And afterwards by an Account it appears what is payed and what not and then he promises to pay the arrerages which is proved as he ought For although Debt implies a promise yet an Account not Now when things are truly in certainty he may have an Action upon a general Insimul compurassit For the Law avoids prolixity of the Declaration which would be infinite if all petit Debts were named And he agreed that the difference put by Atthowe in the Case of an Action c. upon an Indebitat Assump Richardson and Yelverton also agreed Atthowe It is sufficient in an Action of the Case upon an Account to prove the Account without shewing what the Debt was And he cited 3 H. 4. That a Debt certain with other things incertain may lye in Account as in our Case there may be double charge prevented by a verment Although all the things in special by which the debts did arise shall not be shewn yet he ought to shew of what nature the debts were as upon contracts so much or upon mutat so much c. and so infiniteness shall be avoided c. Moyle Pregnotary That 22 Jac. That a general indebitatus is now in peace For it was ruled by all the Iustices in the Exchequer Chamber to be naught Et adjournatur Walsingham and Stones Case IT was said by Huttnn in this case That a Parishioner compounding for his tithes for his life was naught without déed And it was said by Yelverton That the use in the Kings Bench is That if a Defendant in a prohibition dies his Executors may procéed in the spiritual Court And it may be a rule for the Iudges in the Ecclesiastical Court to procéed also And then the Plaintiff may if he will have a new prohibition against the Executors c. Binge and Hodges IN Binge and Hodges case one of the Iurors was named Richard Smith in all the process against the Iurors And after the tryal Ward moved in arrest of Iudgement for that that Rise Smith was sworn upon the tryal and not Richard And by the Court he cannot make such an averment against a Record For then an Affidavit overthrowes a tryal And that which is aided by 21 Jac. cap. 13. is when a Iuror is named by one name in one place of the of the Record and by another name in an other place of the record There now it shall be aided upon this Statute by averment that he is the same man c. Bristowes Case IN the case of one Bristowe The sute was in the Court of Requests for that that the Plaintiff and the Father of the Defendant had made such an agréement to pay money c. And it was moved for a prohibition And by the Court it was granted for that that a mutual agreement is a sufficient consideration upon which an action upon the case will lie And that notwithstanding that there was a decrée in the Court of Requests against the Defendant there And for that the sute is against the heir which is against the rule of Law that the heir shall be charged in the place of his father Whatsoever agréement the father makes is nothing to the purpose to charge the heir although he had assets either by Law or equity And the Court of Equity ought to give relief in such cases For this agreement although it be in writing being without Seal It is not but an Ecclesiastical agreement Mrs. Peeles Case MRs. Peele moved for a prohibition to the High Commissioners King Charles 15 Feb. anno primo regni sui granted a Commission to divers to enquire Dyer and Terminer of all incests adulteries and misbehaviours and all other crimes punishable by the Ecclesiastical Law Afterwards there were divers articles exhibited to them against the Lady Purbeck for adultery and Mrs Peele and others That she in Annis Domini 1621 1922 1623 or 1624. in some one or all of these was an Abettor of this Adultery For which she was sentenced to pay 200 l. c. and that she made a poenitential acknowledgement of her offence and farther that she shall be imprisoned untill she found security for the performance of that order And upon the Articles and the sentence the general pardon of 21 Iac. was pleaded Henden prayed a prohibition and agreed that they might aver that the whole offence was committed before the pardon And he cited a case in the Common Bench 6 Iac. rot 142. Longdale was charged with adultery and the charge was laid after the pardon Yet that charge did not so conclude him but that he might aver that to be before to have the benefit of the pardon It was urged on the other side that such averments would overthrow infinite sentences given before Bramston It is pretended to be done after for the averment is not but a monstrans of the truth of the matter and the Subject shall never have benefit of the pardon without such averments Atthowe it appears that there was an offence and it was proved also And if you allow a prohibition you overthrow all sentences there And also a prohibition ought not to be grounded upon several matters but one only Yelverton said that a prohibition may be grounded
Iurisdiction of this Court it ought not to be received without Oath c. But if in Covenant or debt for money to be paid at another place he pleads payment accordingly or the Covenants performed in the place limited which was out of the Iurisdiction it ought to be received without Oath quod not Double delay BY the course of the Court double delay cannot be allowed as if the Defendant in debt plead that the Plaintiff is a Recusant convicted and had a special imparlance afterwards the Plaintiff conforms The Defendant cannot plead Outlawry in the Plaintiff Iohn Felton's Case MEmorand quod Thursday 29 die Novembr 1628. Iohn Felton was arraigned in the Kings Bench for the murther of George Duke of Buckingham And the Iustices of the Common Bench demanded of the Serjeants of the King who were present in the Kings Bench what was done with Felton And Ashley answered That he had confessed the fact and that the ordinary sentence of death was given against him But they marvelled that for so notorious offence the sentence was not that he should be hanged in chains Yelverton That any other sentence than the ordinary sentence cannot be given But after that he is dead his body was at the disposition of the King which was not denyed by the other Iustices Turner against Hodges TUrner brought Trespasse quare clausum fregit against Hodges The Defendant said that loco in quo c. is Copyhold and that the Lord Dudley is seised of the Mannor of Sedgley and granted the Copyhold in Fee to Roger Turner and he makes a Lease to the Defendant Hodges for a year The Plaintiff replies that there is custom within that Mannor If a Copyholder makes a lease without licence of the Lord for a year and dies within the term it shall be void against the heir And upon the issue of Nul tiel record it was found for the Plaintiff And Atthowe prayed Iudgement and shews that the custom is good and not contrary to reason 4 rep 26. It was resolved that lessee of a Copyhold without licence for a year may maintain an Eject firm for his term is warranted by the Law by force of the general custom of the Realm But that ought to be intended by the custom within every Mannor within the Realm Whatsoever a Copiholder does is by Custom The Case here is that it shall be void by the death of the Lessor which is an Act of God That was that if Copiholder made a Lease for years and afterwards aliens that to be void against the Alienee would be unreasonable 39 Eliz. There was a Case referred to the Iudges out of Chancery which was debated in Sergeants Inne Littleton 59 b. Armesstrong Lord of a Mannor prescribes that a Copiholder upon the change of every Lord should pay a Fine But by all the Iudges it was ruled a void Custom For the Lord might change his Mannor every day But if it had béen That after the death of the Lord he should have a Fine That is a good custom For it is the act of God So in our Case the custom is void against his Heir which is by the act of God In some Cases a custom alters the nature of a Free-hold land 5 Rep. 84. Perrymans Case A Feoffment shall not be good untill it be presented in the Court of the Mannor a good custom If a free-hold estate may be controlled by a custom a multo fortiori a Copi-hold estate Barkley argued on the other side Although it be found for the Plaintiff Yet if the custome be void a void custome is no custome And for that it is said in the Earl of Lecesters case That a void custome cannot be confirmed by Act of Parliament And that is a void custome We ought to consider the nature of a Copyhold Inheritance By the Common law it is but an Estate at will But the Common law so takes notice to establish it by a custome That there may be possessio Fratris of it and he may have Trespass against his Lord. If Tenant at will be out-lawed his Estate is determined But Copyhold is not determined or forfeited by Out-lawry As it was adjudged 44 Eliz. So that the Law takes notice of it as of an other Estate of Inheritance Where an Heir after his death may enter as Heir at Common law and have Trespass because that it descends At Common law he had power to make a Lease for a year For it is not the custome of the Mannor that he may make such a Lease For then it is pleaded If a Copiholder makes a Lease for divers years without alleging a custome or Licence of the Lord he cannot maintain an Ejectione firm against his Lord but perhaps against a Stranger It may be then if it be the very Law if he may make a Lease for one year if this custome be good It will be contrary to the very liberty of the Estate 19 Eliz. Dyer Solomons Case Custom that Tenant in Fee-simple shall not make a Lease for more than 5 years is void So Littleton says That a Condition that the Feoffee should not alien was void And a Condition that Tenant in tayl should not suffer a Common recovery is void Because that it restrains that Liberty which is annexed to the Estate And for the difference between the Father and the Heir in our Case there is not any difference For the Heir is all one with Father and in loco patris For he might have Trespass by discent of a Copihold Sir William Herberts Case And then if the Father shall be bound by the Lease so shall the Heir Richardson said That Iudgement ought to be given for the Plaintiff Copihold as it is created by Custome so in all it is guided by Custome For at the Common law a Copiholder could not make a Lease for a year But because that it is a general custome of all Mannors in England For it is not but a meer Estate at will by the Common law Then this custome is not against the Liberty of the Estate For a Custome inables that the Lease and a Custome ought to destroy it upon a Contingency as here by the death of the Father For that the Lord may know his Tenant And therefore the Case is reasonable and not to be compared to the case of a Freehold in Dyer A Freehold may be restrained by Custom And yet a Freeholder may be restrained by custome As antient demesn which he passes by the delivery of a Turf or a pair of Gloves and it is not convenient for it is at the peril of him who takes the Lease Copyholder makes a Lease for a year But if he dye within the year his Heir within age it shall be void against the Lord. So that the Lord during the nonage shall have the Copihold to hold for his Services is a good Custome And so in our Case Hutton agreed That at the Common law it might be restrained by custome
who was censured for Adultery with the wife of Stock and censured as here And an House was broken to apprehend and a Prohibition was afterwards granted for that that nullus liber homâ— c. ought to be imprisoned c. without lawfull proceedings Secondly 23 H. 1. 8. appears the particular course of proceeding in Spiritual causes Richardson The first part of the sentence is not part of the punishment But that she shall be taken untill she gave security c. And it is not but agreeable to the Ecclesiastical course For if she be taken by a Writ de excommunicat capiendo and then to perform the sentence or make agreement for the second part It is express within their power Brampstone said she is a feme Covert and part of the sentence is impossible scil that she should pay the Fine and then by that means the imprisonment would be perpetual Yelverton They cannot imprison without bayl Their Commission does not give them such power And at another day Richardson said That it was out of the High Commission and the Fine estreated For that now no Prohibition may be granted c. Smith et al. against Pannel SMith et alioc Church wardens of Bignel in Essex presented to the Arch-deacon that one Pannel was a Rayler and a sower of Discord amongst his Neighbours Whereupon the Arch-deacon inioyned him purgation et sur motion the Court granted a Prohibition for this Case belongs more perhaps to the Leet than to the Spiritual Court unless the rayling were in the Church or any waies tending to the Ecclesiastical rights Wats against Conisby ELizabeth Wats Wife of Edward Wats libelled in the Spiritual Court against Iane Conisby for a legacy of 100 l. the Defendant pleaded a Release of Wats the Husband after mariage and there were no Witnesses to the release to prove the same in regard they were dead and therfore it was not allowed but upon averment of the party that there were Witnesses that could prove the Release to be the hand of the party and that had heard the party confess so much that he had subscribed to the Release Prohibition was granted concerning this averment Lashes Case IOhn Lash brought to the Bar by a Habeas corpus cum causa directed to the Mair Aldermen and Sheriffs of London who certified the cause as followeth That there hath been a Court of Orphans time out of mind in London and that the custome hath been that if any Freeman or Free-women die leaving Orphans within age unmaried that they have had the custody of their Bodies and Goods And that the Executors or Administrators have used to exhibite true Inventories before them and for the Debts due to the deceased to become bound to the Chamberlane to the use of the Orphans in a reasonable sum to make a true account upon Oath of them after they be received And if they refuse to become bound to commit them till they become bound and then sheweth that one Joan Cather Widow being a Free woman-Fishmonger died leaving divers Orphans and that Iohn Lash was Administrator and had exhibited an Inventory of 1000 l. debt unreceived and was required by this Court to give bond in 1000 who refused per quod And it was alleged for the Prisoner by Sergeant Atthowe that he was already bound in the Ecclesiastical Court to make account and so he should be twice bound also he was inform'd that there was no such custom for Widdows of Freemen But the Court resolved that they could not examine the truth of the custom but the validity of it and they held it reasonable if it were true which is returned but if the Ecclesiastical Court would impugn a lawfull custom the Court would grant a Prohibition Scot against Wall SCot moved to have a Prohibition that whereas he had 20 acres of wheat and had set out the tenth part for tithe the Defendant pretending that there was a custom of tithing that the Owner should have 54 Sheaves and the Parson 5 and so he sued for tithes for that there was no such custom for the Court said that the modus decimandi must be sued for as well in the Ecclesiastical Court as for the tith it self and if it be allowed between the parties they shall proceed there but if the custom be denyed it must be tryed at the Common law and if it be found for a custom consultation must be granted if not then the Prohibition is to stand Farmer against Sherman IOhn Farmer brought Prohibition and the Case was thus And Abbot having a Privilege to be discharged of tithes quam diu manibus propriis c. in the time of E. 4. made a gift in tayl 31 H. 8. the Abby was dissolved question whether upon the clause of discharge of tithes within the Statute of Monasteries the Donee and his Heirs should be discharged and held that he should not for that Statute dischargeth none but as the Abbot was discharged in the time of the dissolution so that they must claim the Estate and discharge under the Abbot but if by a common recovery the reversion had been barred before or after the Statute it had been otherwise Napper against Steward NApper against Steward the Parson had a Prohibition against divers of his Parishioners that libelled in the Spiritual Court to make proof by Witnesses of divers manner of tithing in perpetuam rei memoriam Hide against Ellis A Prohibition for Hide against Ellis farmor of the rectory of Stanfield in Com. Berks prescribed that all tenants and occupyers of meadow had used to cut the grass to strow it abroad called Tetting then gathered it into wind-rows and then put it into grass-cocks in equal parts without any fraud to set out the tenth cock great or small to the Parson in full satisfaction as well of the first as of the latter math Vpon traverse of the custom it was found for the Plaintiff exception was taken that the custom was void because it imports no more than what every Owner ought to do and so no recompence for the 2 maths But the Court gave Iudgement for the Plaintiff for dismes naturally are but the tenth of the Revenew of any ground and not of any labour or industry where it may be divided as in gross it may though not in corn and in divers places they set out the tenth acre of Wood standing and so of grass and the Iury having found out his form of tithing there it is sufficient and the like Iudgment upon the like custom in the Kings Bench Pasc 2 lac rot 191 or 192. inter Hall Symonds Int. Hil. 2 Car. rot 2445. Bells Case AN action of Debt was brought by Bell upon an Obligation against one as heir of the Obligor scil Brother and Heir And the Defendant pleads riens per discent from the Obligor And upon that issue there was a speciall verdict found that the Obligor seised of Lands which descended to his Son
Hill 4 Car. Com. Banc. that is a good Grant and charges the Heir although it first commenced upon him Yelverton said he charges himself And the Grant is for him and his heirs And warranty which is so granted to commence 40 years after although the Father dye before the commencement of it yet it binds the Heir And so it is of an Obligation to be paid 40 years after Quod concessum fuit Beckrows Case IN one Beckrows Case in evidence to the Iury c. Beckrows intending to a mary a Widdow makes a conveyance by Deed of Feoffment of his Land to several uses by which he setled his Land upon the issue of the Feme having issue by a former wife But after the mariage he by much importunity procured the Déed of conveyance into his hands out of the custody of the Wife and also an Obligation which makes mention of it and it was for performance of Covenants and then he cancelled the Deed and the Obligation and took off the seal from them And afterwards settles his Land upon his former Children and dies having Issue by his last wife And in actions under these conveyances It was permitted by the Court that the cancelled Deed should be read in evidence But first there should be Testimony given of the truth of that practice before it should be read c. A Copiholders Case IT was said by Richardson to Harvey privately That there is almost no Copyhold in England but the Fine in truth is uncertain For if the Rolls make it appear that some time a lesser and sometime a greater sum had been paid for a Fine that is an uncertain Fine And he said that he was of Councel in a Case where the Iury found that the Fine was certain And afterwards by Bill in Chancery It was decreed upon search of the Rolls to be a Fine incertain And that is now the ordinary course scil by decree in Chancery Francis Bill against Sir Arthur Lake FRancis Bill was Plaintiff in an Assumpsit against Sir Arthur Lake who assumed to the Plaintiff that in consideration that he would make for his wife certain apparel and prepare stuff and lace for it That he would pay for the stuff and making as much as should be required And he shews that he provided Sattin and Gold-lace and made the Apparel and shews of what value the Stuff was and what he deserved for his labour which amounted to the value of 39 l. and that he required the Defendant such a day to pay him which was within six years before the action brought but the promise was laid to be 7 years before The Defendant pleads the Statute of Limitations and that the Plaintiff did not bring his Action within the six years after the promise made nor within the 3 years after the Parliament ended But he does not shew when it ended Vpon which there was a Demurrer And by the Court the ending of the Parliament néeds not to be shewn here For the Question is not upon the 3 years after the ending of the Parliament but upon the matter in Law whether an Action ought to be brought within six years after the promise or after the request Richardson said That it ought to be within six years after the promise Here are two causes of Action for the words of the Statute are within six yenrs afcer the cause of Action the promise and the request and the promise is the principal Trin. 5 Car. Com. Banc. and the Action took its denomination from that scil an action of the Case upon an Assumpsit And if there be a demand which is the case of Action Here it will be answered the promise for a Request without promise is no cause of Action And the mischief that the Statute intended to remedy was that a man was should not be put to the proof of the matter de facto so long time after And if the request is said to be the cause of Action the promise may be laid 20 years before and although that may be proved But the other 3 Iustices were against him and said That the intention of the Statute is within 6 years after the cause of the Sute given which is not untill after request As if one promised to another so much when he should mary his Daughter The 6 years there shall be after the mariage Or if one promise such a sum to one at his return from Rome or such a place from whence it is not impossible to return within six years The payment shall be after the return and there is not a cause of Action before and also the promise and the Request are intire For the request is part of the promise and the promise is not intire untill the request They agréed if a man makes a request and suffer the 6th year to pass before an action brought and then makes a new request And this Case was more strong because the consideration was future Heidley said there was a difference where the request is necessary and where it is alleged but for form As if I sell a Horse for 10 l. generally and after the 6 years brought an Action upon the Case upon an Assumpsit against the Vendee and shews in his Declaration that he was to be paid when he would require it licet saepius requisit c. within the six years Here the Plaintiff is barred For it was due by the contract and the request is but formal If a man brings an Action within the 6 years and afterwards is non-suted for want of request shewen where it was necessary and makes a new request after the 6 years and brings his Action It is good Which was granted by the Court. And in this Case the Court taxed Henden for advising the Defendant to plead the Statute and hazard it upon Demurrer When he might have tryed first the matter in fact But Henden said it was dangerous not to plead the Statute For the opinion of the Kings Bench and Exchequer seemed to be that it ought to be pleaded By the Court when it is apparent within the Record that the Action is brought after the 6 years certainly they doubted not but the Statute ought to be shewn in arrest of Iudgement But the doubt is when a general issue is pleaded in an Assumpsit or Trespass and it does not appear in the Trespass or Assumpsit that it was above the six years the Statute now may be given evidence Trin. 5 Car. Com. Banc. Starkey against Taylor STarkey an Attorny of the Common Bench brought an Action against Taylor for slanderous words and declares that he being an Attorney of the Common Bench of honest fame c. and that he gained much by that profession which was his Livelihood the Defendant maliciously and to hinder him in his profession spoke these words of him Thou art a Common Barrettor thou art a Iudas and a Promoter and a Destroyer and a Viper and a Villain and
afterwards at another time he spoke these words of him That he was a Common Barrettor and a Villain and he would make him lose his practice And upon not guilty pleaded it was found that the Defendant spoke thâ—se words Thou art a Common Barrettor and a Judas and a Promoter But not the other words And 50 l. dammages was given to the Plaintiff Vpon which Ayliff moved in arrest of Iudgement because the words were too general And if they had béen spoken of another person they would not lye Hil. 30 Jac. Hawk against Moulton I will not leave thee any thing thou art a common Barrettor And there was demurrer joyned upon the Declaration but no Iudgement The words are here found without relation to his profession But if the last words had béen found it would have been questionable Mich. 41 Eliz. Hather an Attorney brought an action for these words Thou art a Flagging Jack and a Cousener and wouldst have cousened me And adjudged not actionable Because it does not appear that they were spoken with relation to his profession But Hitcham Barkley and Heidley of the other side And that the words were actionable being spoken of an Attorney scil to say he is a Common Barrettor For although there is a doubt if it be spoken of a Common person Yet these are scandalous to an Attorney for no man now will retain him in his Business If one had said of an Attorney That he is a Common stirrer up of Sutes and a disturber of the peace and so a mover of unjust actions without doubt it had been actionable And a common Barrettor comprehend aâ—l that Hil. 8. It was doubtfull whether a Thief were actionable without alleging when and what he had stoln But it was adjudged actionable For Thief intimates that he had done all that which might make him a Thief And so Banckrupt to a Merchant A Common Barrettor in 8 Coment is said to be a Common mover of strifes and there it is said that he ought to be fined and imprisoned if he be convicted Westminster 2. cap. 32. There it is ordained that a Sheriff shall not permit a Barrettor to remain in the County much less this Court will not permit him to be an Attorney For it is that an Attorney ought to be discréet and of honest behaviour 4 H. 4. cap. 18. 3 Jac. cap. 7. They ought to be men of sufficiency and honest disposition These words touch him in his honesty and disposition An Attorney ought to be a man of good conscience 20 E. 4. 9. There it is said that if a Clyent will put in a Plea which the Attorney thinks in his Conscience is not true He may plead non sum informatus and disceit does not lye against him then if the words should be true he touches him in his profession and he might never more be an Attorney In Birchleys Case 4 Rep. You are a corrupt man These are smaller words and more general yet actionable Yet such words make a man to mistrust him and trust next skil is most requisite in an Attorney 14 Jac. Com. Banc. Rot. 1753. Small an Attorney against Moon He is a forgeing Knave adjudged actionable yet to a common person they shall not be accomptable and the case before Distrey an Attorney brought an action against Dorrel in the Common Bench for these words Take heed of him for he is the falsest Knave in England and he will cut your Throat And judged actionable and that the words shall be understood false as an Attorney And a Common Barrettor is more infamous than any of these And the word Judas here ought to be accepted according to the usual understanding of it scil for a betrayer And what can be more scandalous to an Attorney than to be a Betrayor of his Clyents For which he prayed Iudgement for the Plaintiff Richardson said It is doubtfull whether the words will bear an action Barrettor is a notorious offender and if he be to be convicted he is to be fined and bound to his good behaviour And it is hard to make a definition of a Common Barrettor but a description may be made that he is a mover of Sutes and contentious in dispositions and practice But whether the words shall have relation to him as Attorney is the Question Birchleys Case A corrupt man This directly relates to his practice so of Cousener But such a thing which ought not to be applyed to him as Attorney is not actionable Common Brabler Swaggerer Breaker of the Peace which Barrettor comprehends being spoken of an Attorney are not actionable For they do not refer to him as Attorney And the Statute cited before of Westminster 2. It is to be intended if he be found to be a Barrettor And then he should be put out of the Court. And here if there had been a communciation of him as an Attorney then it would be actionable But it ought to be laid habens Collequium of him as Attorney For then of necessity it ought to be understood of his Office And so also the words Trust him not he will cut your Throat ought to be understood of him as Attorney he will cut the throat of your Cause Hutton and Harvey on the contrary And said the words here are as well applicable to his profession as if it had béen found that there was a Colloquium of him as Attorney For it is laid that he was an Attorney and that he lived by that profession and that the Defendant maliciously to hinder him in this profession spoke these words It hath been said what a Common Barrettor is and his punishment is appointed by 24 E. 3. Littleton also mentions speaking of Feoffments made to Barrettors scil Quarrellors then being spoken of an Attorney none but quarrelsome men will go to quarrelsome Attorneys For although he deals in Sutes yet his carriage and practice ought to be fair and peaceable And without Question if it be said Thou art a cousening Attorney an Action lies But by Harvey perhaps Cousening generally will not And if of a common person it be said He is convicted of common barretry It will bear an Action And by Hutton to say of an Attorney he is a Recusant convicted it will bear an Action If it be said of a Iudge that he is a Common Barrettor an action lies And if it be actionable for speaking so of a Iudge it is so of an Attorney For he is in an inferiour ranck a Minister of Iustice and he ought to be chosen of the most honest discreet and religious men and these words if true make him incapable of being Attorney here As in Smalls Case before it was held To say of a Bishop he is a Papist will bear an Action For then he cannot hold his Bishoprick If one said of a Merchant he is a poor man is not actionable But if he said he is worth nothing had been questionable Because that it tantamounts to a Banckrupt And by
the principal case Iudgement was given for the Plaintiff Iohn Costrell against Sir George Moor. JOhn Costrell and Ioan his wife brought an action upon the Case against Sir George Moor and declares That whereas the said Iohn and Ioan were seised of a Messuage and lands in right of his wife Ioan A man having land in right of his wife in trust they cannot both joyn in the action but the Husband only and that the said Iohn and Ioan and all their predecessors time out of mind c. had common in such a waste which is the soyle of the Defendant pro omnibus a veriis levantibus cubantibus c. and the Defendant had inclosed 20 acres of the said waste and made a fish pond of it there so that they could not take the profits as before with their cattel Vpon the general issue pleaded it was found for the Plaintiff And Crawley moved in arrest of Iudgement For that the prescription is ill made and that the Husband and wife cannot joyn in this action but the Husband might bring the action only And also where it is said that they cannot take the profits with their Cattel when the wife cannot have Cattel during the Coverture Richardson said the prescription is good and it would have been better if he said all those whose estate the wife had But this tantamounts and is as well in substance for that goes meerly to the estate of the Wife Trin 5 Car. Com. Banc. which was granted But for the second I doubt if the Wife may joyn in this Action If a man be seised in right of his Wife he may have Trespass for Trespass done upon the Land there the Wife shall not joyn for she cannot have the dammages if she survive And there is no difference between this Case and the principal Case It is Trespass on the Case and for the personal and temporary trespass and such for which the Wife should have the Action after the death of the Husband unless that the Defendant continue the Pond c. I agree if Battery be done to the Wife they both shall joyn for the Wife might have had the Action if she survived And so it was resolved in the Cooks of Grays-Inns Case they might joyn For the wrong was done to the Wife But here the Husband only lost the benefit of the Common and the wife could not take it with her Cattel For she had not any Cattel during the coverture And Yelverton also was of the same opinion But Hutton said In a Quare impedit the Husband and Wife shall joyn And yet the avoidance goes to the Executors of the Husband Hitcham In an Ejectione firm or ravishment of Ward the Feme joyns quod concessum fuit Yelverton said that in 4 E. 4. it is express that the Wife shall not joyn in trespass done upon the Land of the Wife for dammages shall be recovered in lieu of profits Moor against Everay MOor and his Wife brought dower against Everay To parcel he pleads non tenure and to the other parcel ne unque seise de dower which goes to the tryal and there the Tenant makes default and upon that a petit cape is awarded and now at a day in bank one Lumbard prays to be received upon the Statute of Gloucester to save his term c. But Henden alleged to the contrary First That Statute is not to this purpose in force by the Common law Tenant for years cannot falsifie 6 Rep. Periams Case Then because it was hard that a recovery should be had by Covin and the Lessee for years without remedy for his term the Statute of Gloucester was made which gives a receipt for the Lessee for years after the Statute 21 H. 8. was made which gives the Lessee power to falsifie The Common experience of the Court is If an habens facias seisinam issue there is not any saving of the term of Lessee for years Hil. 39 Eliz. in Bests Case A receipt was moved and denied For if the Lessee had a good term he might have trespass for entry upon him Littleton though says in his Chapter of Tenant for years that he shall be received Hutton The Statute of Gloucester aids them only who knew and had notice of the Recovery 21 H. 8. aids them who had not notice of it And it is better to prevent mischief than to remedy it after and as to that a final Bar. I was of Counsel in some Cases where the Lessee was received And if the Lease be not good the Lessor may avoid it by Plea scil Traverse or Demurer And I remember the issue taken upon the Term and found against the Termor And it was Mr. Fulhams Case against Sergeant Harris Sed adjournatur Fawkenbridges Case IT was moved he having Iudgement before to have costs where the Court doubted because that it was a special Verdict and the Statute of 23 H. 8. cap. 15. says That where a Verdict is found against the Plaintiff But in a special verdict it is neither found for or against But it may be said that when it is adjudged against the Plaintiff then it is found against him And 4 Iac. cap. 3. which gives costs in an Ejectione firmae had the same words if any verdict c. But it may be answered That as in Demurrer no costs shall be recovered no more in a special verdict For that the Plaintiff had a Prohibition causam litigandi And the Statute may be intended of vexatious Sutes c. But Brownlowe said that he had many times given costs upon the Statute of 4 Iacob For that the Prothonotaries were commanded to search Presidents The University of Cambridge THe Vniversity of Cambridge claimed by their Charter to be Clarks of a Market and that they had power by their Office to make orders and execute them And they made an Order that no Chandler should sell Candles for more than 4 d. ob the pound And because that one R. sold for 5 d. he was imprisoned and a Prohibition granted But it séemed that an Habeas corpus was more proper For he was not presented First For that they could not imprison without course of Law Secondly Because that as Clarks of a Market they have nothing to do with but Victuals and Candles are not Victuals The Sheriff of Surrey against Alderton THe Sheriff of Surrey returns a rescous against one Alderton That whereas there was a Iudgement had against B. and a fieri facias awarded upon that by vertue of his Warrant directed to R. to take the Goods of B. By vertue whereof such a day the said R. diversa bona catalla ipsius did levy and had them in his custody No rescous can be of Goods and one Alderton rescued them from the Bayliff contra voluntat ipsius Rich. The return is naught First For that that it is rescued from the Bayliff Secondly It is of Goods whereof a rescous cannot be returned Yelverton contrary in
both If a man hinder the Sheriff to make execution and assault him will not a Rescous lye in such a Case Richardson Hutton and Henden that it will not That no Rescous can be upon a Fieri facias but the party shall have an Action upon the Case And Rescous lies only upon a Capias which lies against the Person himself Iohnsons Case IF a Prohibition be granted upon matter at Common law as upon a personal agreement between Parson and Parishioner for his Tithes and not upon matter within the Statute of 2 E. 6. 13. the suggestion shall not be proved within the 6 months as the Statute limites and as it is agreed by the whole Court Termino Mich. 5 Car. Com. Banc. Common Recovery A Common Recovery was suffered and a writ of Entry was not filed and for that a writ of Error was brought And Hitcham moved that it might be examined whether any writ was filed or no. But the Court denyed that But if it might appear upon Record That there was a writ filed Mich. 5 Car. Com. Banc. then they would consider whether a new one should be filed or or not And they said that the Recovery should be exemplified by the Statute of 23. Knight against Symonds THe Plaintiff being cast put this exception in to avoid costs that the Venue was mis-writen and it was allowed by the Court. And because the Defendant might have Iudgement for that he cannot have costs And Richardson said that in the Kings Bench one Grimston brought an Action upon the Case against one Hostler and it was found against him and the Plaintiff alleged that the Declaration was not sufficient for the prevention of costs and allowed But if the Plaintiff be non-sute he shall not have benefit of the Exception to prevent costs by reason of the unjust vexation Harris against Lea. HArris Warden of the Fleet is Plaintiff against Iohn Lea in Debt upon an Obligation where the Condition was That one Lea should be his true Prisoner and pay every month for his diet and the fees due to the Plaintiff by reason of his Office The Defendant pleads the Statute of 23 H. 8. and that this Obligation was made for the ease and favour of the prisoner by colour of his office And the Plaintiff replyed that the Fleet is an antient Prison and that time out of mind c. they used to take such Obligations absque hoc that this Obligation was made for the ease and favour contrary to the Statute That the Warden of the Fleet and Westm never may take Obligations for Dyer c. upon which the Defendant demurred generally But Atthowe prayed Iudgement for that that the traverse waives the matter before which was but an inducement and in 23 H. 6. There is an Exception of the Warden of the Fleet and the Warden of the Palace of Westminster That they might take such Obligations which they used to which the Court agreed And for that that the Traverse ever destroys the Bar the Defendant ought to have joyned in that upon which Iudement was given for the Plaintiff If c. Wardens Case Ejâ—ctments not he of a Mannor IT was said by the Court Although an Eject firm lies of a Mannor or of the moyety of a Mannor if Attournment of the Tenants may be proved yet it is not safe to bring an Ejectione firmae of a Mannor c. Hides Case IN one Hides Case the Defendant was out-lawed before Iudgement and procures a Charter of pardon and the Question was whether he should put in bayl And it was agreed by the Court that he should put in bayl For although the Statute of 5 E. 3. cap. 12. goes only to a Charter of pardon not to the reversal Yet by the Equity of that Statute he must put in bayl for it is that he stand right in Court which is that he appear and put in bayl And although the use of the Court hath been otherwise yet perhaps in some Cases the Plaintiff never required bayl New Entries title Pardon pl. 1. So if an Out-lawry be reversed by 31 Eliz. for want of Proclamation The Defendant puts in bayl at the Common law Manucaptors were only fined for the Defendants default But now the use is for the bayl to enter into a Recognisance c. And if at Common law upon a scire fac he revive the sute he shall find Manucaptors by the same reason he now found bayl Wood and Carverner against Symons THe Defendant here in the Prohibition libels for tithes of Hay in the Spiritual Court Intrat Hil. 3 Car. Pas 4. Car. rot 454. The Plaintiff suggests that the Hay was growing upon Greenskips Deales and Headlands and that within the same Parish there is a Custom that Parishioners in a meadow there used to make the tithe Hay for the Parson and in Consideration of that to be discharged of all tithes of Hay growing ut supra and also that for the Hay of the land no tithe ought to be paid of such Hay but does not aver that the Hay was growing upon Greenskips c. And an exception was taken by Henden First That the exception is double The Custom and Common law But by Yelverton that is not material For you may have 20 suggestions to maintain the suggestion of the Court But Richardson was against that that a suggestion might be double here for the suggestion of the Common law is a surplusage As in Farmer and Norwiches Case here lately One prescribes to be discharged of tithes where the law discharged him and so was discharged by the Common law Second exception is that he does not apply the Custom to himself in the suggestion For he does not shew that the Hay grew upon the skips upon which a Plow might turn it self That had laid the Custom And for this cause by the whole Court the suggestion is naught And here Richardson moved how that two should joyn in a Prohibition Yelverton if they are joined in the libel they may joyn in the prohibition and that is the common practice of the Kings Bench. Richardson the wrong to one by the sute in the Spiritual Court cannot be a wrong to the other Hutton they may joyn in the writ but they ought to sever in the Declaration to which Harvey agreed Yelverton the Prohibition is the sute of the King and he joyn tanâ— as in a writ Richardson But it is as the sute of the party is and if any joyn here I think good cause of consultation Richardson It is against the profit of the Court to suffer many to joyn And it is usual in the case of Customs of a Parish in debate to order procéedings in the 2 Prohibitions and that to bind all the Parish and Parson And it was said by them all That the consideration of making Hay is a good discharge because it is more than they are bound to do Rises Case IN evidence to the Iury it was
all his Interest which he had before usurpation During the life of the Incumbent and non-age of the Infant the Vsurper had an Estate in fee. But after the death of the Incumbent and full age of the Infant the Estate of the Vsurper ceased And the reason is upon the Statute of Westm 2. Infans habeat candem possessoriam actionem qualiter antecessor And 33 H. 6. 42 is that an Vsurper puts an Infant out of possession Infans habeat eandem actionem possessoriam qualiter antecessor But that ought to be understood during the Infancy only Et adjournatur Rawlins's Case HE was Plaintiff in a Replevin and was non-suted after Evidence given to the Iury and the Iurors did not find Costs and Dammages And afterwards a Writ of Enquiry of dammages was granted And Ashley moved that the writ might not be filed Because that the Writ of Inquiry of dammages could not issue but awarded from the Court And the Plaintiff here being non suted was out of the Court and that nothing might be done against him And the Prothonotaries said That in Case of a Verdict where the Iurors omit to find dammages a Writ of Enquiry is many times granted Writ of Enquiry may be granted after a verdict when Jury omit the dammages But they were commanded to search for Presidents in Case of a non-sute Richardson cited one Grimstons Case in the Kings Bench. Which was one Plaintiff in Action upon the Case against an Inne-holder was non suted and the Declaration was insufficient And for that the Plaintiff might not have costs But by Henden It is ordinary now in the Kings Bench If the Defendant had a Verdict although the Declaration be insufficient Yet he shall have Costs Nurse a gainst Pounford NUrse a Barrester of Grays-Inne brought an Action upon the Case against Pounford And declares that he is a Counsellor and was of Councel with several Noble men and that he was Steward to the Lord Barkley of 20 Mannors and also the receiver of his Rents for those Mannors And that the Defendant maliciously intending to disgrace him to the Lord Barkley writ an infamous Letter against him to the Lord Barkley Which Letter was here recited and it was to this effect briefly ut sequitur scil Your wonted Courtesie to Strangers incourageth me to desire your Honor not to protect your Steward in his unlawfull Sutes He hath unjustly vexed his own Brother by Sutes and caused him to be arrested and taken out of his Bed forcibly by Catchpoles He hath likewise almost undone me who have maried his own Sister notwithstanding his entertainment at my House for himself Wife Servants and Horses for several years And now instead of payment thinks to weary me out with Vexations and Sutes at Law I hope your Lordship will give no countenance to him in these things By reason of which Letter the Lord Barkley turned him out of his Office The Defendant pleads not guilty which was found for the Plaintiff And it was moved in arrest of Iudgement that the Action here would not lye Atthowe said that the Action would lye well by reason of the particular loss the Plaintiff had And that is proved by Anne Davies Case Coo. 4. Such words that there are spoken of a maried woman are not actionable But of a Feme sole who had a Suter the Action will lye If one said of a Feme sole That she is a Whore and such a mans Whore It will not bear an Action in our Law But in the Spiritual Court it will And perhaps for Whore generally there And in the Case of Anne Mayes there was a loss of preferment which she might have But here the Plaintiff lost the preferment which he had If a man said to the Ordinary of a Clark presented to him that he is a Bastard seditious or heretique by reason of which words the Ordinary refuses him An Action lies for the Clark for the temporal losse and he cited Butchers Case and Stewkleys Case Cook 4. Also he cited Sir Gilbert Gerrards Case Cook 4. 18. If one said Take not a Lease of such an one I have a Lease of it an Action does not lie But if the party by reason of those words could not demise it to one with whom he had Communication for the Lease Then it lies Or if he said that another had a Lease of that also an Action lies 6 E. 6. Dyer 72. One saying that a Merchant would be a Banckrupt is Actionable Because that no man will trust him 7 E. 4. 24. One threatens another if he will come abroad he will beat him For the threatning an Action does not lie But if for that Cause he could not go abroad about his Business an Action will lye Secondly It hath been objected that the Action does not lie Because that it appears that the Letter was written out of the time of Limitation by the Statute of 21 Iac. which is for Slander That the Action ought to be brought within two years after the Slander I agree if it be brought for slanderous words But this is an Action upon the Case only An Action upon the Case for slandering of a Title is not within the Statute 21 Jac. for the two years but for the six years So here the Action is not for slanderous words For the Letter does not bear an Action But for the temporal loss But it was resolved by the Court That the Action did not lie For by Richardson Chief Iustice In all Cases where you will maintain an Action for words there ought to be some particular words of Slander spoken or written by which the particular loss came Here is a Letter it had not any Slander in it And it cannot be conceiceived that the Lord turned him away out of his Service or Office by that Letter which does not touch him in his Office of Stewardship nor his Receivorship If he had written that the Plaintiff was a contentious and troublesome man that had been more questionable than this is Yet it would not bear an Action And Richardson said that they alwaies conceived Sir Gilbert Gerrards Case not to be Law For if a man said that he himself had a Title to the Land of an other it is not actionable although he lost by that But if he had said that another man had Title to the Land of another that is actionable And no Case can be shewen where an Action upon the Case lies upon a particular losse unless the words carry some slander with them Hutton said the words of the Letter are not actionable But if being said to be done maliciously and falsesly and to the intent the Lord Barkley should put him out of his place and upon that the Lord displaced him then there would be more doubt of it But here the Iury had found the Defendant guilty and that seemed only to the writing of the Letter and it might be false notwithstanding But if the Iury had found that
all was false and written of set purpose and that for that the Lord displaced him it would be more difficult But for any thing as appears to us there is not any thing for which he might be justly displaced And also it was not said in the Declaration that the Defendant had any fee for his Office And Richardson also said That if it had been found as my Brother Hutton said Yet it is known that it should be more strong But then I conceive that the Action does not lye For it is apparent that nothing in the Letter may be applyed to a particular misbehaviour in his Office And by the Court Although the Declaration be laid falsely and maliciously Yet if the words be nâ—…t scandalous yet it ought to be laid falsely and maliciously And he said that it was adjudged in this Court Where an Action upon the Case was brought for conspiracy to indict a man and upon the Indictment the Iury found Ignoramus There the Indictee was clear And yet for the conspiracy the Action laid which was Blakes Case And it was said by Hutton If I have Land which I intended to sell and one came and says maliciously and on purpose to hinder my sale that he had a Title to it That that is actionable Which Harvey agreed without Question if he does not prove that he had a Title If one says of an Inue Go not to such an House for it is a very cutting House Agreed by the Court not Actionable Mich. 5 Car. Com. Banc. And Iudgment was given quod querens nil cap. per bil Pasc 6 Car. Com. Banc. THis Term there was nothing worthy the reporting as I heard of others For I my self was not well and could not hear any thing certum referre c. Trin. 6 Car. Com. Banc. Tomlins's Case IF the Husband makes a Feoffment to the use of himself for life the Remainder to his Son in tayl By the Court That is a dying seised in the Husband For the Wife shall have dammages in Dower And so it was adjudged in the Lady Egertons Case But the Husband ought to dye seised of an Estate tayl or Fée simple which might descend to his Heir Mich 6 Car. Com. Banc. MEmorandum That Sergeant Atthowe died at his House in Northfolk who was a man somewhat defective in Elocution and Memory but of profound Judgement and Skill in pleading NOte it was was said by Hutton and Davenport That if an Inferiour Court prescribe to hold Pleas of all manner of Pleas except Title to Freehold That that is no good prescription For then it may hold Plea of Murther which cannot be c. Note It was said by Richardson chief Iustice that if two conspire to indict an other of a Rape and he is indicted accordingly If the Iury upon the Indictment find Ignoramus Yet that Conspiracy is not punishable in the Starchamber Father purchases Lands in his Sons name who was an Infant at the age of seaventeen years and he would have suffered a Common recovery as Tenant to the Praecipe But the Court would not suffer him Rawling against Rawling THe Case was thus A man being possessed of a Lease for 85 years devises it as follows viz. I will that R. Rawling shall have the use of my Lease if he shall so long live during his life he paying certain Legacies c. And after his decease I devise the use thereof to Andrew Rawling the residue of the term with the Lease in manner and form as R. Rawling should have it Crew said That after the death of R. Rawling and Andrew the term shall revert to the Executors of the Devisor But by the Court not But it shall go to A. Rawling the last Devisée and in manner and form shall go to pay Legacies And by all a strong Case And together with the Lease be by strong words The Archbishop of Canterbury against Hudson of Grays-Inne THe Archbishop of Canterbury prosecuted against Hudson of Grays-Inne in an Information upon the Statute of E. 1. of Champerty Henden Sergeant for the Plaintiff moved upon the Plea that it was insufficient Because that the Defendant had prayed Iudgement of the Writ when he ought to have pleaded in Bar For the Statute of E. 1. had appointed a special Writ in this Case as the Defendant said But by him the Information is upon the Statute of 32 H. 8. which gives that Action by sute in Chancery which before was only by sute at Common Law Richardson chief Iustice said That the Plea is not to the matter but to the manner for the Plaintiff had mistaken his Action For the Action is given to the King only And therefore said to Henden demur if you will The Case was that the Defendant purchased Lands in anothers Name hanging the Sute in Chancery for it And after rules for Publication was given in the Cause Malins Case AYliff moved in arrest of Iudgement in an action of Battery c. And the cause that he shewed was An issue mistaken cannot be amended It was brought against William Malin of Langlee and in the Record of nisi prius It was William Langley of Malin But by the Court it ought to be amended For it is a misprision apparently of the Clark For the whole Record besides is right And the Record of nisi prius ought to be amended by the Record in the Bench according to the 44 E. 3. But if the issue had been mistaken otherwise it had been Arrerages for rent upon an estate for life cannot be forfeit by Outlawry NOte That it was agreed by the whole Court That arrerages of rent reserved upon an Estate for life are not forfeited by Outlawry because that they are real and no remedy for them but a distress Otherwise if upon a Lease for years c. Hill 6 Car. Com. Banc. MEmorandum that this term Sir Humfrey Davenport puisne Iudge of the Common Bench was called into the Exchequer to be Chief barron Browns Case AN Information upon the Statute of 5 Eliz. pro eo that one Brown was retained an Apprentice in Husbandry until the 21 year of his age and that he before his age of 21 years went away And the Defendant absque ullo testimonio detained him contra formam Statuti And by Hutton and Harvey Iustices only shewed the branch of the said Statute which says And if any servant retained according to the form of this Statute depart from his Master c. Hil. 6 Car. Com. Banc. And that none of the said reteined persons in Husbandry until after the time of his reteiner be expired shall depart That is not to be intended of an Apprentice in Husbandry but of an hired servant For the Statute did not intend to provide for the departure of an Apprentice because that an Apprentice ought to be by Indenture And then a writ of Covenant lies upon his departure to force him to come again And by the Common Law an
action upon the case lies for retaining the servant of another And by them the retainer without being testimonial which is an offence against that Law is after the years of reteiner expired For so are the words of the Statute But they said that the Information was naught because that it does not appear that the Defendant did not retain him out of the Parish where they served before For the Statute says out of the City Town or Parish c. except he have a testimonial And the words secundum formam Statuti will not aid it And in the same Village or City c. The Statute does not require a testimonial because that there it was known c. And for these reasons after here said for the Plaintiff Iudgement was stayed if c. Jennings against Cousins IEnnings brought a Replevin against Cousins who avowes for damage feasant The Plaintiff replies that post captionam ante deliberationem he tendered 3 s. which was a sufficient amends for the Trespasse and the Defendant notwithstanding detained his Cattel contra vadum pleg c. Vpon which they demurred And by the whole Court the Replication is naught For Pilkintons Case was agreed to be good Law that the tender ought to be before pounding but any time before the impounding it is sufficient But here ante deliberationem implies that the Cattel were impounded and it is not shewn in certain that the tender was before And it was agreed in trespass That the Defendant may plead the Trespass to be involuntary and disclaim in the Title without pleading the Statute of 21 Iac. for the Statute is a general Statute Whereupon Iudgement was given for the Defendant Butts against Foster THe Plaintiff in an Action upon the Case the Plaintiff declared That whereas he was a man of good fame carriage and behaviour and free from all blot or stain Yet the Defendant with purpose to draw his life in Question and traduce him amongst his Neighbours in presentia multorum c. crimen felonae ei imposuit ea occasione illum arrestari causavit et per spatium duarum dierum in custodia detineri coram Iohanni Pettyman uno Justic ad pacem c. duci procuravit nequisfime prosecutus est c. The Defendant pleads not guilty which was found for the Plaintiff And Hitcham moved in arrest of Iudgement that the Action would not lie And of that opinion was Hutton because that he did not proceed to indictment For there an Action of that lies in the nature of a Conspiracy But if an Action should lie here it would be a mischievous Case for by that every man would be deterred to question any person for felony And it was said by Hutton If one said You have broken the Peace and I will cause you to be arrested and procures a Warrant from a Iustice of Peace by which he is arrested No Action here will lye But Berkley on the other side said to the contrary and of that Opinion was Richardson Chief Iustice that the Action will well lye And by Richardson The Defendant ought to have justified that there was a Felony done and that he suspected him c. But he pleads not guilty And it does not appear by the Declaration what was done with the Plaintiff after he was brought to the Iustice of Peace and by that it shall be implyed that he was dismissed upon his examination And here the Plaintiff was imprisoned and carried before a Iustice of Peace which is an act done as well as in the case where there is an Indictment And an Attourney of the Court cited one Danvers and Webly's Case In that very case it was adjudged that the Action lay But it was adjourned to another day Champues Case OUnson makes his will gives 200 l. to Tho. Champues son of Jeremie Champues Also to other Children of Ieremy 20 l. a piece to be paid at their several marriages or ages of 21 years And after wills that his Executor should enter into bond to the several parents to pay the several Legacies to the several Children at the ages of 21 years or their marriages And his Executor after his death gave an Obligation to Jeremy Champues to pay the 200 l to Thomas at his full age or marriage But in the Spiritual Court afterwards upon libell it was ordered that he pay the legacies presently Thomas being under age of tender years And for that Henden moved for a prohibition Richardson although the sute for a Legacy be properly in the Spiritual Court yet if there be an Obligation given for the payment of it it is not turned to a duty in the Common Law and then it is not tryable there This is one reason why a prohibition shall be granted Secondly another reason is because that they sentenced the payment of the Legacy against the Will and against Law and the Obligation here will not alter the case for it is given to another person not to the Legatee and then the Legatee notwithstanding the Obligation may sue in the spiritual Court But by Richardson it is all one for here the Will orders the Obligation to be made Which Hutton changing opinion and Harvey agréed For now because the Obligation is given if the sentence shall be given the party is liable to the Obligation also to perform that And by Richardson it seemed that the clause in the will of the Obligation to be entered into by the Executor to pay at the marriage or 21 years of age the several Legacies c. extends to the first Legacy of 200 l. to Thomas although it be coupled to the last Legacy which should be by a new and several Item And by that clause the intention of the Testator appears that the 200 l. which is given generally and no time of payment named It shall not be paid until marriage of 21 years of age And a prohibition was commanded to be granted NOte It was said by Richardson chief Iustice If a man had a way over the Land of another for his Cattel and upon the way he scares his cattel so that they run out of the way upon the land of the owner and the party who drives the Cattel freshly pursues them c. That in Trespasse he who had the way might plead this special matter in justification Green against Brouker and Greenstead IN Trover and reversion the Plaintiff declares That whereas he was possessed of a bag of hops and a bag of flax to the value of c. And that the Defendant found them and the third day of October converted them And the Defendants plead that Sandwich is an antient Village and that the custom of forrain attachment is used there as in London and that these goods were lost upon default in November and traverses absque hoc that they were guilty of any conversion in October Pasc 7 Car. Com. Banc. or any other time or day than the times before which are
that there was a conference of a Bill of Costs laid out by him c. and does not say laid out by him as Attorney And the whole Court seemed to be of the same opinion But it was adjourned If it had been said that habente colloquio primo die c. he spoke it should have been good But habito implies time past Hitcham against an Attorny of this Court HItchsm Chief Sergeant of the King brought an Action upon the Case against James Cason an Attorney of this Court And he declared that he was now Sergeant to the King and so was to his Father and that the King made him Iustice of Peace for his County of Suffolk and that he for many years theretofore and yet did exercise the Office of a Iustice of Peace And that the Defendant on purpose to disgrace him and to make him to be removed from being a Iustice of Peace in the Court openly spoke these scandalous words In a matter wherein I was questioned at the Quarter Sessions in Suffolk Mr. Sergeant Hitcham being there was Witness Judge and Party and did there oppresse me And moreover he said In Articles there presented against me he did me injusticâ—… and hath contrived those Articles And moreover he said Mr. Sergeant Hitcham bound my Son Finch to the Quarter Sessions and there indicted him and was Witness Judge and Party and counts to the dammage of the Plaintiff 1000 pound The Defendant to some of the words in the Declaration pleads not guilty to the residue he justifies and says that the Plaintiff was made a Iustice of Peace 1 Apr. 1 Car. And as to the words In a matter wherein I was questioned in the Quarter Sessions in Suffolk Mr. Sergeant Hitcham being there was Witness Judge and Party And all but the last words That the Plaintiff at the Sessions 8 Sept. 2 Car. at W. in Suffolk quosdam falsos Articulos scribi fecit exhibuit et produxit And recited all the Articles being in number eleaven Hil. 5 Car. Com. Banc. And that after the exhibiting the Articles in open Court The Plaintiff there said that they were true and counselled the Clark of the Peace to read them and then said he should be tryed upon them But the Plaintiff denied that and said that he would proceed now no further upon them but took the Articles and carried them with him by which the Court was dispossessed of them And would not proceed against him upon them And upon the last words scil Mr. Sergeant Hitcham bound my Son over to c. He said that his Son was bound to appear at the Quarter Sessions And caused an Indictment to be preferred against him Because he being elected Constable refused to take his oath or to execute his office And upon that Indictment the Sergeant gave evidence to the grand Iury and they found the Indictment And upon that Iudgement was given that he should be amerced that estreated And upon this bar the Plaintiff dumurred Finch for the Plaintiff And first he answers to the Exceptions which were taken before to the Declaration c. First that it did not appear by the Declaration that the Plaintiff was Iustice of Peace at the time of the speaking of the words To that he answers That is sufficient in the Declaration to shew that he was a Iustice of Peace at the time For it is per multos annos jam ultime elapsos et adhinc est and that the Declaration coming in M. 5 Car. If it was per multos annos ulterius c. It was at the time of the speaking For it was Paululum before the Action commenced And also the Defendant says in his Bar that the King made him a Iustice of Peace and that he was not a Iustice of Peace at the Sessions And although that he was not a Iustice of Peace at the Parlance Yet the words are actionable which charge him with Injustice when he was c. Secondly It was objected that part of the words were not alleged to be spoken of the Plaintiff But the Declaration is That in a matter c. Mr. Sergeant did c. which is directed to the first words But the subsequent words are induced such like afterwards Ad tunc ibidem the Defendant said And he did me injustice c. And although the first words were laid to be spoken of the Plaintiff yet the last words not But and he did me c. which ought to be taken That they were spoken of the Plaintiff For it is ad tunc ibidem upon the same Communication And also the Defendant cleared that For he justifies those words as spoken of the Plaintiff Thirdly It was objected that the words themselves are not actionable In Actions for words it is as in Wills The best argument will be from the words themselves yet we can borrow light from other words in the same Will Which I will recite The proverbial Verse Quid de quoque viro cui dicas saepe caveto Quid c. Some words declare all malice which are not actionable of some persons they may be spoken of quo some only actionable being spoken of such a man 4 H. 8. The Duke of Buckingham hath no more conscience than a Dog Those words upon the Statute of Scandala magnatum are actionable 10 Iac. the Earl of Northamptons Case It was resolved in the Starchamber that to publish false rumors of any of the Peers of the Realm was punishable at the Common law And if one heard such words and reported them again it is punishable But not in a Common persons case But this difference there was resolved That to say of Commons person generally that he heard so is not actionable if he name the person If one says of a Merchant he is a Banckrupt it is actionable not of the Defendant If one said of the Defendant he is an Ambidexter it is actionable not if of a Merchant It is a general rule that slander of every man in his profession is actionable Much more of the Plaintiff in his profession being a Iustice of peace For the words themselves if they be taken together or asunder are actionable The ground of the speaking was that there was a communication of Injuries done to him by the Plaintiff but take them asunder Trin. 7. Car. Com. Banc. and none of them but with the circumstances here will bear an action First that he was a Iudge Witness and party That is against the Law to be Iudge and party They who are Duellists are Iudges and parties and Executioners Iudge and party is as much as to say he is partial and he did oppresse me That shews that he was not Iudge and party fairly But they have objected that this word oppresse is incertain for he may be oppressed with overwait or hunger and cold But this case cannot have any such such sence But here it is intended the perverting of Iustice But this case was
for a Legacy and that upon the Statute of 23 H 8. cap. 9. And Henden said that a Prohibition might not be granted for two causes First The Statute is general That no person c. then there is a proviso That this Statute does not extend to any probate of Wills in the Prerogative Court Then a Legacy cannot be recovered in any other Court. For if a Will be proved there no inferiour Ordinary will meddle with that Will and alwaies they had the execution of all Wills proved there in that Court Secondly It is pretended that the party is cited out of a particular Iurisdiction But that is not a Iurisdiction within this Statute For no Iurisdiction is intended but where there is an Ordinary But in the Tower of London there is no Ordinary But it is but as a Lord of a Mannor who had probate of Wills which is but a lay Iurisdiction c. Thirdly There is no Ecclesiastical Iurisdiction there But Davenport replyed That although for the present time no Ecclesiastical Iurisdiction is executed there because the Lord is dead Yet Spiritual Iurisdiction is executed there Hutton said If there he cause de bonis notabilibus Then the Archbishop had the Prerogative and might cause the proving of the Will But it stood with reason That where an Executor is tyed to perform the Will which may be there sued and the property of sute ought to be there where there is cause of Prerogative Harvey If there be cause of Prerogative and proof of the Will in the Prerogative Court Yet in the inferiour Iurisdiction the party will be compelled to prove the Will also But by Crook and Hutton minus juste An Action of Battery AN Action of Battery is brought against two and one dies before tryall and it was entred upon the Roll But the Venire facias was awarded against both and dammages assest And by Yelverton it cannot be amended For it was not the Act of the Court but of the Iury So that now dammages cannot be severed For although he may have the entire dammages against which he will yet if they be severd you will then oust him of his Election Quod non fuit negatum A Prohibition IN a Motion for a Prohibition where the Ordinary would make distribution It was agréed Richardson being absent That if the Ordinary commits Administration to the Wife of the Intestate that he cannot revoke that But if he grant Administration to one as Prochein de Sank and another more near of Blood comes He may revoke And because the Administration being granted all the power of the Ordinary is determined and then he cannot make distribution And if the Administration be one time justly granted the Grantée had a just Interest which cannot be revoked And although it was urged that those Prohibitions were not granted untill of late time yet they say those things passed Sub silentio Yelverton They cannot grant Admistration before a division was made And by Crook and Harvey An Action upon the Case lyes against the Ordinary if he will not grant Administration where he ought And at an other day it was moved by Finch Recorder That such a Prohibition could not issue in one Davyes Case And Richardson said That because that that Case was a Case of Extremity For Davyes had not any thing or portion allotted him by his Father who was dead And his Mother who was Administratrix turned him out of her House without any maintenance stopped the Prohibition which was granted before And said that it was in the discretion of the Court to grant such a Prohibition or not But Harvey and Crook said secretly betwéen themselves that it was not in the discretion of the Court. Garton against Mellowes AN action of Battery was brought by Garton against Mellowes And the Plaintiff pleaded a Recovery by the same Plaintiff for the same Battery in the Kings Bench against another who joyned in the Battery And the Piaintiff replies Nul tiel Record Vpon which they were at issue and the Record was brought in at the day assigned And these variances were objected for to make it fail of a Record And first The award of the Dist jurat in the Kings Bench is Coram domino Rege and there it was Coram domino nuper rege But not allowed For the King died before the Plea there and then it ought to be so pleaded Secondly That in one Record the Plaintiff is Generosus in the other Armiger Brampston said That that was such a variance which could not be amended Dyer 173. One recovers in debt by the name of I. Cives and Sadler And the Defendant brought Error and removes the Record inter I. Civem Salter c. And it was rul'd that the Record was not well removed upon that Writ Dyer 178. Plo. 8. Vpon Nul tiel Record there was a variance in the day of the Return of the Exigent and in the place where the Outlary was pronounced And adjudged a variance which could not be mended And now here there cannot be an amendment because it is after tryall And by amendment there might be a cause of changeing the Plea For he took that Issue by reason of the variance and after verdict there cannot be an amendment Mich. 2 Jac. Kings Bench Tayler and Fosters Case In an Ejectione firm upon a Lease made 10 Iunii and upon not guilty pleaded it was found for the Plaintiff And in Error it was assigned for error that the Imparlance roll was 10 Iunii and Issue roll the 12 Iunii and it appeared there was a rasure And it was agréed that if it was after verdict it could not be amended Atthowe This variance is not substantiall And the cases put do not make to this case For Salter and Sadler are two severall Trades And it cannot be intended the same man for he may vary in his action as he pleases But the Court said nothing to that Exception Thirdly In the Record of Nisi prius there was another fault It was agréed that a Material variance cannot be amended Yelverton said That he might have new Execution For he pleaded a recovery and execution in Bar and that they came to take whereof he had failed For that it stood now as another battery For it does not appear by the Declaration of the Plaintiff c. Smith against Sacheverill AN Action of Wast is brought by Smith against Henry Sacheverill and declares Whereas Henry Sacheverill the Grandfather was seised of these Lands he levyed a Fine of them to the use of himself for life with power to make a Lease for three lives and after to Smith his son for his life the remainder to the first begotten son of Smith in tayle The Grandfather makes a Lease for three lives and dyes and Smith and his first begotten son bring this Action of Wast against the Lessee and they assigne their wast in killing red Deer in a Park and upon nul wast pleaded it was
only upon the Land in possession but also the rights to the same the one in point of Giving The other in point of renouncing The Land in possession could be but in one that is in the Offenders and so it was given but the rights to the same Lands might be in sundry persons in the Offendor or in his Heirs or in Strangers Now when the Statute saith the King shall have the Land without saving the Rights of the Offendors or his Heirs or any claiming to their use Tenant in tayl discontinues and after disseiseth his Discontinuee and is attainted of Treason he forfeits his Estate gained by the Disseisin and also his right of Entayl for he cannot take benefit of his ancient Right against the King by force of the Statute of 26 H. 8. and 32 of H. 8. and this agrees with the reason and the rule in the Marquess of Winchesters Case for if the Traytor have right to a Strangers land that shall not be given to the King for the quiet of the Stranger being Possessor for the quiet of his possesion but such right shall be given to the King being Possessor for the quiet of his possession and the word Hereditament in the Statute 26 H. 8. are both sufficient and fit to carry such right in such Cases and no man will dispute but they are sufficient to save naked rights to the Lands of strangers therfore it is not for the count of words but because it is alleged it was not meant so it was said in Digbies Case and so hath Antiquity expounded it for the good of the Subject against the King and against the letter of the Law But can any man imagine that the Parliament that gave the Land to the King should leave a right in the Traytor in the same Land to defeaf him again of it since the Statute gives the right and the Land and this gives a forfeiture of all rights belonging to the Person attainted of Treason and their Heirs for the benefit of the Kings forfeiture is of so great importance that if it be not taken as large as I take it it is an avoiding of all the Statute even that 33 H. 8. cap. 20. for though they have the word Rights in both Statutes even that of 33. doth not include the right of Action to the Lands of Estrangers by an Equity against the Letter So for this time the Case was abruptly broken off by reason the King had sent for all the Iudges of every Bench. Springall against Tuttersbury IN Springall and Tuttersburies Case It was agreed by the Court If a verdict be given at a nisi prius and the Plaintiff or Defendant die after the beginning of the Term yet Iudgement shall be entred for that relates to the first day of the term Overalls Case ONe Overall was sued in London and for that that he was of the Common Bench a Writ of Privilege issued which is a Supersedeas and staid the Sute wholly and not removed the Cause And if the Plaintiff had cause of Action he ought to sue here And then by the course of the Court a Clark shall not put in bayl Foxes Case THe Lord Keeper in the Star-chamber cited one and Butchers Case to be adjudged 38 Eliz. An Vnder-Sheriff makes his Deputy for all matters except Executions and restrained him from medling with them And it was adjudged a void Exception So if it be agreed and covenanted between them that the Deputy should not meddle with matters of such a value It is a void Covenant And that was agreed by Richardson to be good Law Hil. 5 Car. Com. Banc. Overalls Case IT was agreed at another day in Overalls case by all the Clarks and Prothonotaries of the Court that the Course always was that if an Atturney or Clark be sued here by bill of Privilege he needs not put in bail But if he be sued by original and taken by a Capias as he may be if the Plaintiff wil Then he ought to put in bail quod nota MEmorandum that on Sunday morning in the next term ensuing which was the 24. day of Ianuary Sir Henry Yelverton puisne Iudge of the Common Bench dyed who before had been Attourney general to King Iames and afterwards incurring the displeasure of the King was displaced and censured in the Star-chamber and then he became afterwards a practicer again at the bar from whence he was advanced by King Charls to be a Iudge He was a man of profound knowledge and eloquence and for his life of great integrity and piety and his death was universally bewailed Termino Hill 5 Car. Com. Banc. Honora Cason against the Executor of her Husband HOnora Cason sues Edward Cason Executor of her Husband and declares by bill original in nature of debt pro rationabili parte bonorum in the Court of Mayor and Aldermen of London and alleges the custom of London to be That when the Citizens and Fréemen of London die their goods and chattels above the debts and necessary funeral expences ought to be divided into three parts and that the wife of the testator ought to have the one part and the Executors the second part to discharge Legacies and dispose at their discretion And the children of the Testator male or female which were not sufficiently provided for in the life of the Father to have notwithstanding the Legacies in the will the third part And the custom is that the Plaintiff in this action ought to bring into the Court an inventory and sue before the Mayor and Aldermen And that she had here brought an Inventory which amounted to 18000 l. so that her third part was 6000 l and demanded it of the Executor who unjustly detained c. And it was removed to the Common bench by writ of Privilege And now Hitcham Serjeant moved for a procedendo And the Court séemed to be of the opinion to grant it Because that the custom is that the sute ought to be before the Mayor and Aldermen and then if they retain the action here the custom would be overthrown But they agreed that a rationabile parte bonorum may be remanded here and that they may proceed upon it in this Court And that there be divers presidents to this purpose And they agreed that a rationabile parte bonorum is the original writ by the Common Law and not grounded upon the Statute of Magna Charta But that it does not lie but where such a custom is which custom they ought to extend to all the Province of York beyond Trent Richardson chief Iustice said that in the principal case The Plaintiff in London might have declared without alleging the custom As it is in 2 H. 4. Because that the custom is well known But otherwise Where custom ought to be shewed and where not where an action is upon the custom in a place where the custom does not extend There it ought to be shewn And afterwards at another