Sheriff of another County then where the occasion brought or by Warrant of a Iustice of Peace of another County for matter of the Peace and the like which are not like to the case of Partridge who was beâ—ten in the County of Glocester by Sir Henry Pole for which he brought his Action in London And Sir Hen. Pole would have justified by Assault of the Plaintiff in the County of Glocester with a trâ—verse that he was not guilty in London But it was then ruled in this Court that he could not do it to oust the Plaintiff to sue in London but in such a case he might have alledged that the Assault was done in London because it was also a thing transitory of which they shall take notice there and so help himself if the matter had been true But in the case at the Bar if the speciall matter alledged in the forraign County be false as here the Plaintiff may maintain his Action and traverse the special matter alledged by the Defendant And so a traverse in such a case may be upon a Traverse when falsity is used to oust the Plaintiff of that benefit which the Law gives him Hillary Term 38 Eliz. Wood versus Matthews 1. IN a writ of Error brought by Owen Wood against Griffeth Matthews upon a judgment given in the common Pleas the case was briefly thus The Issue in the Common Pleas was whether one were taken by a Cap. ad satisfaciendum or not and upon the triall therof at the Nisi prius the Jury found for the Plaintiff in this Action to wit that the party was not taken by the said Capias and upon the back of the Pannell entred dicunt per Quer. but on the back of the Postea the Clark of the Assises certified the Pannell thus to wit That the Jury say that no Capias was awarded which was otherwise then was put in Issue or found by the Jury and the Roll of the Record was according to the Postea and upon this Judgment given for the said Matthew then Plaintiff upon which amongst other Errors this variance between the Issue and Verdict was assigned for Error and after deliberation had upon this point and this matter alledged by the Defendant in the Writ of Error and certified out of the Common Pleas the Court awarded as to this point that the Record sent up out of the Common Pleas by the Writ of Error shall be amended according to that which was endorsed on the back of the Pannell for the endorsement upon the Pannell is the Warrant for the certifying of the Postea aâ—d so this Warrant over to him that makes the Entry in the Roll And therfore wheras it was alledged that the Postea was amended in the Common Pleas aftâ—r the Record removed it was holden to be well done there for although the Record were removed by the Writ of Error yet the Nisi prius the Postea and the like remain still there as it is of the Warrant of Attorney and the like And if the Postea had not been amended there but sent up with that which was endorsed upon the Pannel all shal be amended here according to that which was indorsed upon the Pannel and according to this there was a Presidâ—nt shewn Tr. 35. H. 8. between Whitfeild and Wright where the Issue was whether a quantity of Grain were delivered between two Feasts and endorsed upon the Pannel Dicunt pro quaer and yet the Postea certified and the Rolls also made that the delivery was made ad festa and upon this matter alledged in Banco Regis and the Error in this point assigned and certified out of the Common Pleas the Record removed by the Writ of Error was by award of the Court amended and the word Ad razed out and the word Inter written in lieu of it according as it appeareth it ought to have been by the Note upon the back of the Pannel And the like amendment was made lately in the Checquer Chamber upon Error brought there upon a Iudgment given in Banco Regis where the Iudorsment upon the back of the Writ was pro Quer. and the Postea and Roll was that the Plaintiff was guilty and there amended the last Term. Slanings Case 2. NIcholas Slaning of Bickley was seised in his Demesn as of Fee of the Mannor of Bickley and of a Mill in Walkhampton in the County of Devon called a blowing Mill and of another Mill there called a knocking Mill and of an acre of Land there also and of divers other Mannors and Lands in the said County of Devon the said Mills and acres of Land in Walkhampton then being in the possession of one Peterfeild and Atwill of an Estate for divers years then to come and being so seised he with Margaret his Wife levied a Fine of the said Mannor of Bickley and of other Lands omitting the said Lands in Walkhampton to certain Câ—nuzees who rendred the same back again to the said Margaret Slaning for her life with the remainder over to the said Nicholas and his Heirs After which the said Nicholas by Indenture daied 30. Octob. 21 Eliz. gave and enfeoffed all the said Mannors and Premisses to John Fits and others and the Heirs of the said Fits to the Vses Provisoes and Limitations mentioned in the said Indenture which was to the use of himself and the Heirs Males of his body by any other Wife the remainder to Nicholas Slaning of Newton Ferries and the Heirs Males of his body with divers remainders over with this Proviso to wit Provided and it is the intent of these presents and of the parties therunto that the said John Slaning and the Heirs Males of his body or the said Nicholas Slaning of Newton-ferries and the Heirs Males of his body in whomsoever of them the Inheritance in tail of all the Premisses shall happen to be by force of these presents shall pay to Agnes the Daughter of the said Nicholas Slaning of Bickly 200 l. or so much therof as shall be unpaid at the time of the death of her said Father according to the intent of his last Will with a Letter of Attorney to it by which he ordains John Hart and Robert Fort joyntly and severally his Attorney to enter into the said Mannor of Bickley Walkhampton c. and all other the Lands Tenements and Hereditaments in the said Indenture mentioned and possession for him to take and after such possossion taken for him and in his name to deliver full possession and seisin of the Premisses to the said John Fits c. according to the form and effect of the said Indenture wherupon possession and seisin was given of all but that which was in possession of the said Peterfield and Atwill And the said Pererfield and Atwill nor either of them never attorned to the said Grant After which Nicholas Slaning of Bickly made his last Will by which devised to the said Agnes his Daughter 200 l. to be paid in form following
the Assise in manner and form as the Writ supposeth And further that the said West therof disseised the said Mounson namely of the Tenements in the will of one Mounson And did not find either the words of the Will nor the Will it self what it was c. And the Iustices of Assise upon this Verdict upon advice with the other Iustices gave Iudgment that the Plaintiff shall recover c. upon which a Writ of Error was brought in the Kings Bench where it was moved that the Iudgment was erroneous First because the Iury have not found that the Defendant was Tenant of the Free-hold agreeing with the form of the Plea for the Writ of Assise doth not suppose him to be Tenant of the Free-hold and therfore the Verdict in this point not fully found The second Error is that the Seisin of the Plaintiff is not required of according to the charge given to them as well as the Disseisen for the charge was that they should enquire of the Seisen of the Plaintiff c. But to both these the Court answered that the Verdict is well enough notwithstanding these exceptions for every Assise brought supposeth that there is a Disseisor and a Tenant named in it then this Assise being brought against a sole person supposeth him to be a Disseisor and Tenant also and therfore the Verdict saying that he was Tenant as the Writ supposeth is now as strong in this case as if they had found that he was Tenant of the Free-hold for the Tenant of the Free-hold ought to be named in the Writ But if the Assise had been brought against two or more such a Verdict had not been good for it sufficeth if any of them be Tenant of the Freehold and then the Writ doth not suppose one to be Tenant more then another but supposeth one Tenant to be named in the Writ And therfore in such a case the finding ought to be speciall to wit that such a one is Tenant of the Free-hold or that there is a Tenant of the Free-hold named in the Writ But where one only is named in the Writ to be Disseisor and Tenant it is sufficient to find as here for by this it is certainly found that he is Tenant of the Free-hold And for the other point although it be a good direction for the Iudges to the Iury wherby they may the better perceive that there ought to be a Seisin in him or otherwise there cannot be a Disseisen by the other yet in Deed he cannot be a Disseised who was not then seised But the Assise having found the Disseisen the Seisen in Law is found included in the Disseisen But for the point moved that the Verdict was not perfect in as much as they found the Disseisen with a Nisi it seemed to Gawdy that the Iudgment upon this Verdict was erronious as where a Verdict in another Action is imperfect a Venire facias de novo shall be awarded to try the Issue again And if Iudgment be given upon such a Verdict it is error so here the Verdict in this point being incertain there ought to have been a Certificate of Assise to have this better opened But the three other Iustices held as the case is that the Verdict in this point is certain enough for that which cometh before the Nisi as it is placed is meerly nugator as in the case of the Lord Stafford against Sir Rowland Heyward the Iury found Non assumpsit but if such Witnesses say true as they believe they did Assumpsit c. it was but a meer nugation But it seemed to Popham that if the Verdict had been if the words of the Will do not passe the Land then that he disseised and if they passe then that he did not disseise there if the words of the Will be not found the Verdict had been all imperfect but here the Verdict is full and perfect before the Nisi c. and therfore the Iudgment was affirmed Holme versus Gee 8. A Formedon in Descender was brought by Ralph Holme Demandant against Henry Gee and Elizabeth his Wife Tenants and the Case wâ—s thus Ralph Langley and others gave two Messuages and a Garden with the Appurtenances in Manchester to Ralph Holme the great Grandfather of the Demandant and to the Heirs of his body begotten after which the same great Grand-father by Deed indented dated 20. September 14 H. 7. enfeoffed Iohn Gee of one of the said Messuages and of the said Garden rendring yearly to the said great Grand-father and his Heirs 13 s. 4 d. a year at the Feasts of S. Michael and the Annunciation by equal portions after which the said Iohn Gee died seised of the said Messuages and Garden and it descended to Henry Gee his Son and Heir after which the said great Grand-father by his Indenture bearing date 6. Martii 12 H. 8. enfeoffed the said Henry Gee of the other Messuages rendring also to him and his Heirs yearly 13 s. 4 d. at the said Feast aforesaid by equal portions after which Holme the great Grand-father died Stephen Holme being his Son and next Heir who was seised of the Rents aforesaid and afterwards also died seised Robert Holme being his Son and Heir after which the said Henry Gee died seised of the said two Messuages and Garden and they descended to Eliz. his Daughter and Heir who took to Husband one Richard Shalcroft and had Issue the said Elizabeth wife of the said Henry Gee Tenant in the Formedon after which the said Richard Shalcroft and his wife died after which and before the marriage had between the said Henry Gee and Elizabeth now Tenants in the Formedon the said Elizabeth enfeoffed one Richard Greensearch of the said Messuages and Garden after which to wit at the Feast of the Annunciation of our Lady 3 Eliz. the said Henry Gee husband to the said Elizabeth paid 13 s. 4 d. for the said Rent reserved as is aforesaid to the said Robert Holme after which to wit on Munday next after the Assumption of our Lady at Lancaster before the Justices there a Fine was levied with Proclamations according to the Statute between Thomas Aynsworth and Thomas Holden then being seised of the Tenements aforesaid Complainants and the said Henry Gee and Eliz. his wife Deforceants of the Tenements aforesaid wherby the Conusance was made to the said Thomas and Thomas who rendred them to the said Henry Gee and Eliz. his wife and to the Heirs of their bodies the Remainder to the right Heirs of the said Henry the five years past after the Proclamations in the life of the said Robert Holme after which the said Robert died and Ralph his Son and Heir brought the Formedon upon the Gift first mentioned and the Tenants plead the said Fine with Proclamations in Bar and the Demandant replyed shewing the severall discontinuances made by the great Grand-father as aforesaid and the acceptance of the said Rent by the said Robert by the hands of
was given this day The same Term in the same Court. Goodwin versus Willoughby GOodwin brought an action upon the case against Joane Willoughby wife of Thomas Willoughby and upon non Assumpsit pleaded it being found for the Plaintiff it was moved in Arrest of Iudgment 1. That the Plaintiff shews that Thomas Willoughby was indebted upon account and doth not shew that Joane Willoughby is Executrix or Administratrix and yet that she promised to pay wheras in truth she hath no cause to pay for there is no consideration and so Nudum pactum Jermy for the Plaintiff for the first because it doth not appear for what cause he accounted I answer that this is but a meer conveyance And for the second that she does not suppose that the Feme is executrix c. But here is a good consideration which is that she shall not sue or molest and that he gave day for payment this is a sufficient consideration But Stone of counsell with the Defendant said that the first is the ground of the action and therfore he ought to shew for what he accounted Crew chief Iustice two exceptions have been taken 1. For the alledging the manner of the account which I conceive is good enough and he need not shew the cause of the account And as to the second because it doth not appear that she is Executrix or Administratrix and so no consideration and so no Assumpsit But here she assumes to be Debtor and makes a promise to pay which is an acknowledgment of the Debt by inference and therfore he conceived that the Assumpsit was good Doderidge Iustice for the first it is good enough yet Cum indebitatus existit is no good Assumpsit but here he shows a speciall way of Debt and it would be long and tedious to describe his account For the second there is no cause of action because it doth not appear that she is Executrix or Administratrix or Executrix of her own wrong If I say to one do not trouble me and I will give you so much this is not actionable for there ought to be a lawfull ground and for this cause the Declaration Where forbearance without cause of action is no ground of an Assumpsit is void for it is only to avoid molestation Give me time c. this is no good Assumpsit for forbearance is no ground of action where he hath no cause to have Debt Jones Iustice agreed in the first with them because a generall action upon the case sufficeth and in truth it is but an inducement to the action but for the other part he doubted and he cited one Withypools case an Infant within age promised to pay certain money he makes an Executor and dies within age the Executor saith to him to whom the promise is made forbear and I will pay you and there an action upon the case did lye against the Executor upon this promise and yet it was a void Contract but there was colour of action forbear till such a time now the other hath lost the advantage of his Suit But he gave no opinion Crew It is a violent presumption that he is indebted But by Doderidge here is no colour to charge her but only by inference that she is Executrix If a stranger saith forbear such a Debt of J. S. and I will pay it it is a good consideration for the losse to the Plaintiff and in this case it appears not that there is any cause and Broom Secondary said that Withypools case before cited was reversed in the Exchequer Chamber Jones If an Infant makes a promise it is void and he may plead non Assumpsit which Doderidge did not deny But upon his Obligation he cannot plead Non est factum for he said that he shall be bound by his hands but not by his mouth The same Term in the same Court Drope versus Theyar IN Debt by Drope against Theyar an Inne-keeper upon Issue joyned and a Verdict for the Plaintiff Bolstred moved in Arrest of judgment for the Defendant and the matter was that one Rowly who was servant to Drope lodged in the White Heart at S. Giles and there had certain Goods of his Masters which were stoln from him in the night and Drope the Master brought an action therupon and it was moved by Bolstred that the Plaintiff was without remedy 1. Because it was in an Inne in London for the Register 105. is Quando quis depraedatus euns per patriam which as he said could not be extended to an Inne in London 2. It ought to be an Inne as Inne-keeper 3. He ought to be as a Guest lodging and this appeareth in Culeys case in 5 Jac. in Celly and Clarks case which was entred Pasch 4. Jac. Rot. 254. It was adjudged that where the Guest give his Goods to his Host to deliver to him three daies after and the goods are lost that an action is not maintainable against the Inne-keeper for them and this was in an Inne in Uxbridge And in one Sands case where the Guest came in the morning and his Goods were taken before night he shall have an action against the Inne-keeper 4. The Goods ought to be the Goods of the party who lodgeth there for the words are Ita quod hospitibus damna non eveniunt and here the Master who brought the action was not Guest But admit the Master shall have the action yet he ought to alledge a custom that the Master shall have the action for the Goods taken from his Servant Trin. 17 Jac. Rot. 1535. Bidle and the Master brought an action for Goods taken from the Servant and there it was resolved that he ought to conclude that Pro defectu c. and apply the custom to him being Master Sec Co. Book of Entries 345. And that a custom that for other mens Goods in the custody of Guests the Owner shall have an action against the Inne-keeper if they be stollen Ob. This is the Common Law and therfore ought not to be alledged Answ Where a man takes upon him to shew a custom he ought to shew it precisely he cited Heydons case Co. lib. 3. 28 H. 8. Dyer 38. And it was said for the Plaintiff that Goods are in the possession of the Master which are in the possession of his Servant and so here the Master might have had action well enough 8 E. 4. my Servant makes a Contract or â—â—ies Goods to my use I am liable and it is my act By the Court an Inne in London is an Inne and if a Guest be robbed in such an Inne he shall have remedy as if he were Enns per patriam But the cheife point was whether the master shall have the action in the case where the Servant lost the goods and by Jones Justice in 26 Eliz. in C. B. upon the Statute of Hue and Cry it was resolved that if the Servant be robbed the Master may have the Action and so by him
as a memorandum and afterwards there is an order that the Iudgement shall not be filed if the Iudgement upon this shall be stayd and speaks to it and by him the Case of 15. E. 4. 7. is nothing to this purpose for Iustices in Eyre were Iustices by commission and they had not the custody of their Records and so it differs from this case And Jones Justice which was not denyed if a Iudgement be pronounced here and be not entered the Iudges may alter it the next Term. It was said by Noy in this case that all Franchises in England are against common Right and execution of Iustice and for the present purpose he cited one Sir John Wells Case where in a Quo Warranto the Defendant had day to plead or otherwise that judgement should be entered to seise and he failed to plead at the day and the Iudgement was not filed and yet he could not be relieved But it was sayd by some of the Iustices that this was a case of great extremity But by Hendon it was affirmed in the Exchequer in one Sandersons Case and in the principall case the matter was adjourned for a fortnight and ordered that the plea should be accorded Mich. Term 2. Car. in the Kings Bench. Sharp versus Rust IN an Action upon the Case upon an Assumpsit between Sharp Plaintiff and Walter Rust Defendant upon non-Assumpsit pleaded it was found for the Plaintiff and it was moved in arrest of judgement upon these words in the Declaration the Defendant being Father to the Plaintiffs Wife for whom the Apparrel was bought said to the Plaintiff deliver the Apparrel to my Daughter and I will pay for them and saith not to whom the payment shall be made And it was argued by Woobrich of Grayes-Inne that this is no sufficient cause to stay the Iudgement for by necessary implication and reference of the words precedent the certainty of the pers on appeareth to whom the payment ought to be made And he observed that in our Law the time the estate the thing and the person not being sufficiently expressed Where a thing incertain may be made certain both in time estate and person yet by necessary coherence and relation to matter precedent they are sometimes made certain enough 1. For the time Perkins P. 496. puts the Rule if a condition hath relation to an act precedent and no time is limited when it shall be done yet if ought to be done when the act precedent is done and therefore if I. S. be bound to me in 20 l. upon condition that if I enfeoff him of black acre that then he wil pay me 10 l. c. in this case presently when I have enfeoffed the obligor of black acre he ought to pay the 10 l. notwithstanding there be no time limited when it should be payd 2. For the thing being put incertainly yet the communication precedent makes this certain 30. H. 8. Dyer 42. in the Case of the Executors of Greenliffe where it is agreed that albeit it is not shown what thing is granted yet it shall be the Land of which the communication was 3. For the Estate although it be incertain yet sometimes it is made certain by the matter precedent as in the Case Co. lib. 8. A Stewardship was granted for life and afterwards an Annuity was granted for the exercise of that Office without declaring what Estate he should have in that Annuity and resolved that he should have the Annuity for life because he had the Office for life 4. For the person the consideration sometimes ascertains the person and therefore if land he given to one by Deed habendum sibi una cum filia donatoris in frankmariage this shall enure to both because the Feme is Causa donationis and by intendment of law the Land and the feme shal be given together to the man for the advancement of the Feme as it is Mich. 2. 3. Ph. Mary Dyer 126. a 4. E. 3. 4. Plow Com. 158. enfeoff him another and bind him and his heirs to warrant doth not say to whom he shall warrant yet the Feoffee and his heirs shall have advantage of this warranty for it cannot have any other intendment 6. E. 2. Voucher 258. 22. E. 4. 16. Kelleway 108. Co. lib. 8. Whitlocks Case In a Lease for years reserving rent it is the surest way to make the reservation to no person in certain but to leave it to the general intendment of the Law 15. H. 7. A man deviseth that his Land shall be sold for the payment of his debts and doth not say by whom they shall be sold by his Executors because they are lyable for the payment of his debts but if one devise that his land shall be sold saith not for the payment of his debts the devise is void because the Law doth not intend in this case to make the sale 40 E. 3. 5. 4. E. 3. Fitzherbert Obligation 16. Nota if a man be bound in debt or Covenant by writing and puts such a clause in the writing Et ad majorem hujus rei securitatem invenit fidei jussores quorum unusquisque in tot in solido se obligavit that although none speak there but the principall in the writing if the others put to their seals they accept that which the principal spake so become principal 2. E 4. 20. and here in our Case it appeareth that the Deed was so therefore it is reason that the Declaration should be so for there cannot be a material difference between the Declaration the deed especially being upon an agreement which is to be ruled according to the intention of the parties as it is in Plow Com. 140. a. In our Law if any parties be agreed upon a thing and words are expressed or written to make the agreement although they be not apt words yet if they have substance in them tending to the effect intended the Law shall take Intention of parties to be observed them of the same substance as words usuall for the Law regards the intention of the parties and here the intent appeareth that the assumption shall be mâ—de to the Plaintiff although there want expresse words and therefore he prayed Iudgement for the Plaintiff And afterwards the same Term Iudgement was given for the Plaintiff The same Term in the same Court. Beven versus Cowling IN an Action upon the Case Littleton mooved in arrest of Iudgment for the Defendant wherein the Case was this the Defendant assumed that if the Defendant would defer the payment of a bond in which one A. was bound to him and would not implead him upon it then he promised to pay it and he doth not say that he deferred the payment untill such a day and therefore this is no valuable consideration so that the action doth not lye for notwithstanding Action upon the Case upon a â—romise that if â—e would not sue such a
one he would pay it where good where not this he may implead him presently Mich 12. Jac Kebles Case A man promiseth to pay so much in consideration of a Lease at Will and it was holden no good consideration for by the same breath that he creates it he may defeat it Pasch 8. Jac. Austins Case A man promise that in consideration he would forbear another he would pay it and no time was limited and therefore it was holden no good consideration Trin. 38. Eliz. Rot. 523. A man promise quod non implacitabit and avers quod non implacitavit and because of the uncertainty it was holden no valuable consideration Doderidge Justice If there be no consideration at the time or no cause of Action the forbearance afterwards will not make it actionable and he said that it had been adjudged in this Court that a consideration to forbear for a little time is not good but by some to forbear for a reasonable time is good But in the principall Case upon the hearing of the Declaration read it appeared that it was that he should never implead him upon the said obligation so that if the Plaintiff brings an Action upon the obligation the Defendant here may have an Action upon the Case against him Also it was non implacitabit and this shall be taken indefinitely quod nunquam implacitabit and therefore the Iudgement was affirmed for otherwise the Plaintiff shall both take advantage of this promise and of the bond also and here he hath in a manner forsaken the benefit of his bond and hath betaken himselfe to the benefit of this Assumpsit By Jones and Whitlock Iustices if A. be bound to me and I enter into bond to him that I will not sue this Obligation I cannot sue him upon the first Obligation without forfeiture of my bond and by Doderidge if an Obligation be forfeited and I say to the Obliger do not sue the Obligor or do not implead him an Action upon the case lies against me The same Term in the same Court. Arnold versus Dichton IN an Action upon the Case and Non-Assumpsit pleaded it was found for the Plaintiff and Noy mooved in arrest of Iudgement that there was no consideration to maintain this Action the Case being thus Arnold having married the Daughter of the Defendents Testator the Testator promised to give him 40 l. and meat â—nd drink for a year and a Featherbed and Bolster and afterwards the Testator in consideration that the Plaintiff would Assumpsit forbear to sue him all his life for it promised that he should have as good a portion at his death as any of his children and the Plaintiff declares that he gave to one Tho. P. one of his Sons 200 l. and that he left him at the time of his death but 30 l. but when he gave to Tho. P. the 200 l. appeares not peradventure it might be in his life time and this promise doth not extend to that which he had given before as if a man be bound to keep a Goale and that no prisoner shall escape this only extends to a future keeping and future escapes and not to other escapes which were before True it is that sometimes the Law will alter the sense as in the Case of 32. H. 6. where a man is bound that his Feoffees c. And at another day Doderidge said that the first promise was but an inducement to the second and the Defendant hath pleaded Non Assumpsit to the last promise and then comes the Plaintiff and shews that he gave to such a one 200 l. and doth not shew when this was given and this may be before the promise and therefore I conceive the Declaration is not good Jones agreed that the Declaration is not good for admit that in this case he had given to all his children but one great portions before the said promise and had given a small portion to one after the promise the Plaintiff now shall have but according to the said promise and it is alledged here that he gave to such a one 200 l. which may be before the promise and therefore the breach not well laid Whitlock contra and that the Plaintiff shall have according to the best gift in this case whether it were before or after the promise and that upon the intention of the promise for the intention is that the Plaintiff should have as good a marriage or portion with his Daughter as any other of his children should have But by Doderidge this construction cannot be made without offering violence to the words for then daret should be for dedisset and for any thing which appeareth he had a portion before and this was but a superaddition Jones put this case I am bound to enfeoff J. S. of so much Land as I will enfeoff J. D. this extends not to a Feoffment which I have made to J. D. before but only to a Feoffment which I shall make to him afterwards which was not denied by Whitlock and it was adjourned The same Term in the same Court. Barker versus Ringrose BArker brought an Action upon the Case against Ringrose and declared that whereas he was of good fame and exercised the Trade of a Wool-winder the Defendant spake these scandalous words of him that he was a Words Thou art a bankrupt Rogue Bankrupt Rogue and it was moved in arrest of Iudgement that those words were not actionable for the words themselves are not actionable but as they concern an Office or Trade c. and it appeareth by the Statute of 27. E. 3 that a Wool-winder is not any Trade but is but in the nature of a Porter so that the Plaintiff is not defamed in his function because he hath not any also it is not averred that he was a Wool-winder at the time of the words speaking Jones Justice If one saith of a Wool-winder that he is a false Wool-winder action upon the Case lieth and it was demanded by the Court A Wool-winder wâ—at he is what a Wool-winder was and it was answered that in the Countrey he is taken to be a Wool-winder that makes up the fleece and takes the dirt out of it and a Wool-winder in London opens the fleeces and makes them more curiously up and in London they belong to the Mayn of the staple Doderidge If one saith of a Sher-man that he is a Bankrupt Action lyes and so it hath been adjudged of a Shoo-maker and note that if one saith of any man who by his Trade may become a Bankrupt within the In what case to call a man Bankrupt is actionable Statutes that he is a Bankrupt an Action lies as of a Taylor Fuller c. And the Court seemed to incline that in this case being spoken of a Wool-winder in London the Action lies But Mich. 3. Car. the Case being moved again the Court was of opinion that the Action could not lye and would not give
there ought to be a dislike of the Father also and in the Declaration it is also said that she dis-agreed Doderidge agreed with Jones that â—he Declaration is not good and that it is not warranted by the Covenant and that the breach is not well assigned The case is grounded upon the second covenant which consists upon a contingency which contingency is if there happen any discord between the Father and the Son c. the words are joynt and all ought to disagree True it is that in some cases a conjunctive shall be taken for a disjunctive but this is according to the matter and circumstances of the fact but in our case it shall not be taken disjunctively If the Father the Son and the Wife had disagreed then it is cleer that an Action of covenant lies but this is casus omissus and no provision for it Also it is only alledged in the Declaration that she disagreed whereas a mutuall disagreement between all ought to be alledged and therefore Judgement was given Quod quaerens mil. capiat per bellam But all agreed that the Wife might have boarded with Tooker the Father if she would but her new Husband could not AT thowe Sergeant took divers exceptions to an Inditement of forcible entry upon the Stat. of 8. H. 6. against Ployden and others for expelling one Syms from his Copi-hold and the principall exception was because disseisivit was not in the Inditement and in truth it cannot for albeit the Stat. of 21. Jac. cap. 15. gives power to Iudges and Iustices of Peace to give restitution of possession to Tenants for yeares and Copy-holders in which there shal be an entry or detainer by force yet the Stat. does not give an Inditement of forcible entry of copy-hold Noy a Copy-holder shal now have an Iditement of forcible entry but disseisivit shal not be in it for no Iury will find that because it is not possible because a Copy-holder hath no Frée-hold and yet a Copy-holder shall have a Plaint in nature of an Assize against a stranger but not against the Lord And at last the opinion of the Court was that the Inditement was good UPon a Capias directed to the Sheriff of London to take the body of J. S. the Capias was returnable die Jovis which was the day of All-souls and thereupon the Sheriff took the party but he returned that because the return of the Writ was upon a day that was not Dies Juridicus he suffered the party to go at large And the return was holden insufficient for by Doderidge the Writ was good and the taking and detaining of the party by vertue thereof was lawfull but yet he could not have the party there at the sayd day and therefore the Sheriff was compelled to bring the party into Court which the same day he did accordingly The same Term in the same Court A Man granted a Rent charge of 12 l. to one of his Sons out of the Mannor of D. by Déed and died the Grantée lost his Deed the Land is extended to I. D. by vertue of a Recognizance acknowledged by the eldest Son of the Grantor the Grantée sue for his Annuity before the Councell of York to be relieved in equity for that in respect of the losse of the Déed he could not have remedy at the common-Law and J. D. the Conuzée obtained a prohibition out of this Court upon this surmize that although the Councel of York should make a Decree that he should pay the said Annuity yet it should be no discharge for so much against the Conuzor because their Decrée was no legall eviction Now came Smith of the Temple and prayed a Precedendo for the Grantée to the Councel of York and the opinion of the whole Court was that a Decrée there being no legall eviction shall not be a discharge for so much against the Conuzor Doderidge the Grantée of the Rent-charge having now lost his Déed can have no remedy in equity for in this case Equitas sequitur legem and of the same opinion were Jones and Whitlock but by Doderidge which was not denied if the Grantee had lost the Deed by a casuall losse as by firâ— c. in such a case he shall have remedy in equity and he sayd that in the beginning of King James when Egerton was Lord Chancellor there was such a Case in Chancery A Grantee of a rent-seck had seisen of it so that he might have an assize and he devised it to J. S. the Devisée sued in Chancery to have his Rent and seizen of it and he could have no remedy for it in Chancery And this was one Malleryes case The same Term in the same Court ONe Hebborne was indited for stopping a way c. and it was mooved that the inditement was insufficient because it is not layd that it was communis via but only that it was a way to the Church and per Curiam it was good enough and by Jones Iustice the Inditement is good enough although there wants vi armis because he who is supposed to stop the way is owner of the Land The same Term in the same Court AN Action upon the Case upon a promise was brought in the Town of Northampton and the Consideration alledged was that if the Defendant here in the Writ of Errour would discharge Bagnot of Execution c. that then the Plaintiff here in this Writ of Errour promised to pay him eleven pounds and there the Defendant pleaded quod exoneravit illum de Executione relaxavit And Bolstred for the Plaintiffe moved this for Errours that the Plaintiffe in the inferiour Court did not shew by what manner of release it was nor that it was by writing for this being the Consideration upon which the Action is grounded ought to be put in certain Mich. 15. Iac. Staple and King Execution of a consideration ought to be shown 35 H. 6. 19. a discharge ought to be shown in certain 22 E. 4. 43. the Lord Lisles Case and Mich. 16. Iac. in this Court Liverel and Rivets Case which was entred Trin. 16. Iac. Rot. 32â— in an Action upon the Case upon a promise upon issue joyned it was found for the Plaintiffe and it was moved in arrest of Judgement because the Consideration was that the Plaintiffe should discharge one Ogle and he declares that he did discharge him and thereupon he brought this Action and because he declared but generally quod exoneravit the Judgement for that very cause was stayed and 36 Eliz. one covenanted to make an assurance and pleaded generally that he had assured and resolved that it was not good and in Rosse and Harvies Case this Term which was entred Trin. 2 Car. Rot. 1408. In Covenant the Defendant covenanted to give security the Defendant pleaded that he offered security and resolved that it was not good per que c. Jermy for the Defendant that the plea is good enough for a Release by Peroll is sufficient I
one part at one time and another part at another an Action of Wast may well lye Albeit Fitzherbert and Brook seem therin to be of a contrary opinion and that severall Actions of Wast ought to be in that case And the exception was taken because the Iudgment was entred that he shall recover the place wasted Per visum Jurator praedict wheras they had not the view of it in this case for this should be where it is given upon a Writ awarded to enquire of the Wast upon default made at the grand Distresse whereas here the Wast is not denied but acknowledged But as to this severall Presidents were shewn the one upon Demurrer for part Hill 1. Mariae Rot. 301. and another Tr. 31. H. 8. Rot. 142. in an Information in both which Cases the Iudgment was entred as here to wit Per visum Jur. praedict and yet in these the Wast was as acknowledged Whereupon it was ordered that the Iudgment should be affirmed 3. In an Ejectione firmae brought by Sir Moyle Finch Knight Plaintiff against John Risley Defendant for a Messuage and a Mill in Raveston in the County of Buckinghamshire the case for the matter in Law appeared shortly to be this The King and Queen Philip and Mary by their Letters Patents dated the eight of July 3. 4. of their Raign made a Lease of the Reversion of the Mannor of Raveston of which this was parcell to Sir Robert Throgmorton for seventy years from such a Feast after the death of the Countesse of Ormond who then had it for her life rendring yearly 73 l. 13 s. payable at the Feasts of Saint Michael the Arch-angel and the Annunciation of our Lady at the receit of the Exchequer by equall portions with a Proviso that the Lease shall cease if the said Rent or any part therof were arrear and not paid at the said Feast or a certain time after the Reversion descend to the now Queen and the said Countesse died 7 Eliz. part of the Rent then payable was not paid at the day nor within the time limited by the Proviso afterwards Queen Elizabeth by her Letters Patents dated 30. May 30 Eliz. granted the said Mannor to the said Sir Moyl and one Awdeley and their Heirs in Fee with a clause in it that the Letters Patents shall be good notwithstanding there be not any recitall of any Leases or Grants at any time before that made by her or any of her Progenitors after which an Office is found for the Queen that the Rent was arrear and not paid as before after which the said Sir Moyl and Awdeley assured the said Mannors by bargain and sale to Sir Thomas Hennage who demised the said Messuage and Mill to the said Sir Moyl upon whom the said Risley entred in right of the said Lease made by the said King Phillip and Queen Mary under Thomas Throgmorton who then pretended to have the term of the said Lease from Sir Robert his Father The case was well argued at the Bar and now at the Bench where Fennor moved first Whether it were a Condition 2. Whether an Office were requisite 3. Whether this Office found comes soon enough for time For the first he conceived that it was a conditional Limitation for a Limitation is that which limits an Estate certain oâ— doubtfull as Quandiu in manibus nostris fore contigerit quamdiu amicus sit or dummodo solverit And there dummodo was a Condition as appeareth 5 Ass plit 9. 2. Ass a Grant made to J. S. and his Heirs tam diâ— as the Grantor and his Heir shall enjoy such a Mannor this is a Limitation and a Limitation alwaies determines the Estate but a Condition albeit it be broken during the Estate yet it doth not determine the Estate and so it is of a conditional Limitation and therfore t is not in the King untill an Office be therof found for the King submits himself to the Law for Bracton saith Quod non debet judicare sed secundum legem and his Prerogative is so excellent that he cannot take a part with any thing but by matter of Record neither can he draw the Right or Possession of any one in question upon a bare surmise but by Office or other matter of Record for a Record alwaies carries credit with it And there is no diversity where two matters are limited in Deed and where one is limited in a Deed and the other by the Law And the contrary objections are easily answered for when the Tenant in tail of the King dies without Issue it is in the King without Office because the Law does not help them which contemn it But in case of an Office which is forfeited it is in the King to dispose without Office because the King is not to have the Office it self but the disposition of it and yet it is to be defeated by Scire facias in the Chancery If a Mill be demised for life upon condition that he shall not let it but to a Milner and he breaks the Condition in case of the King there must be an Office to avoid it and there the Office entitles the King to the Condition and not to the Entry for after the Office it is not in the King untill Entry And here the Rent may be paid to the Kings Bayly in the Country which is matter in fait and therfore shall not be defeated without Office And here the Office comes too late to give any advantage to the Patentee for the King cannot grant a Title of Entry before Office no more then the Assignes of a common person can take advantage of a Condition broken in the time of the Grantor of which the Grantor did not take advantage in his time And if the Queen makes a Lease durante beneplacito the Patentee shall not avoid it as it appears in the Lord Burgleighs case and therfore the Office herâ— shall not help the Patentee but the Queen for the mean profits for although nullum tempus occurrit Regi yet the Patentee shall not take advantage of this Prerogative Clench agreed cleerly that it was a Limitation but yet that it is at the Queens liberty to avoid or make it good for perhaps the Rent is better then the value of the Land and upon this reason a Lease from the King Probiâ— hominibus de dale or to a Monk rendring rent is good which otherwise had been meerly void And by the Office found the Election of the Queen appeareth without which the Lease is to continue and therfore the Patentee shall not defeat that which happened in the Queens time before Popham to say that the Office helps the Queen for the mean Profits and that now the Patentee shall not take advantage to avoid the Lease is too absurd for the Queen cannot take advantage to have the mean Profits but in respect of the avoidance of the Lease And if the Lease were made void or determined against the Queen it shall not
such Estates that the Law allows them to be good against the Lords themselves they performing their Customs and Services and therfore are more commonly guided by the guides and rules of the common Law and therfore as appeareth in Dyer Tr. 12. Eliz. Possessio fratris of such an Estate facit sororem esse haeredem And to say that Estates of Copyhold Land are not warranted but by custom and every Custom lies in Vsage and without Vsage a Custom cannot be is true but in the Vsage of the greater the lesser is alwaies implyed As by Vsage three lives have been alwaies granted by Copy of Court Roll but never within memory two or one alone yet the grant of one or two lives only is warranted by this Custom for the use of the greater number warrants the lesser number of lives but not è converso And so Fee-simples upon a Limitation or Estates in tail are warranted by the equity of the Statute because they are lesser Estates then are warranted by the Custom and these lesser are implyed as before in the greater and none will doubt but that in this case the Lord may make a Demise for life the Remainder over in Fee and it is well warranted by the Custom and therfore it seems to them that it is a good Estate tail to John Gravenor and a good Remainder over to Henry his Brother and if so it follows that the Plaintiff hath a good Title to the Land and that Iudgment ought to be given for him And for the dying seised of Elizabeth they did not regard it for she cannot dye seised of it as a Copyholder for she had no right to be Copyholder of it And by the dying seised of a Copyholder at common Law it shall be no prejudice to him who hath right for he may enter But here in as much as she cometh in by admittance of the Lord at the Court her Occupation cannot be fortious to him and therfore no descent at common Law by her dying seised for it was but as an Occupation at Will But if it shall not be an Estate tail in John Gravenor as they conceive strongly it is yet for the other causes alledged by Gawdy and Clench Iudgment ought to be given for the Plaintiff and the Remainder which is not good shall not prejudice the Fee-simple conditionall granted to John which is no more then if the Surrender had been to the use of Iohn Gravenor and his Heirs the Remainder over because that we as Iudges see that this cannot be good by Law and therfore not to be compared to the case where the Custom warrants but one life and the Lord grants two joyntly or successively there both the one and the other is void And this is true because the custom is the cause that it was void and not the Law and also it is a larger Estate then the Custom warrants which is not here and upon this Iudgment was given that the Plaintiff shall recover And by Popham it hath been used and that upon good advice in some Maâ—nors to bar such Estates tails by a common Recovery prosecuted in the Lords Court upon a Plaint in nature of a Writ of Entry in the Post 2. JUlius Cesar Iudge of the Admiralty Court brought an Action upon the Case for a Slander against Philip Curtine a Merchant-stranger for saying that the said Cesar had given a corrupt Sentence And upon not guilty pleaded and 200. marks Damages given it was alledged in arrest of Iudgment where it was tryed by Nisi prius at the Guildhall by a partiall Inquest because that upon the default of strangers one being challenged and tryed out a Tales was awarded De circumstantibus by the Iustice of Nisi prius wheras as was alledged a Tale could not have been granted in this case for the Statute of 35 H. 8 cap. 6. which give the Tales is to be intended but of commontryals of English for the Statute speaks at the beginning but of such Iuries which by the Law eught to have 40 s. of Free-hold and wills that in such cases the Venire facias ought to have this clause Quorum quilibet habeat 40 s. in terris c. which cannot be intended of Aliens which cannot have Free-hold And it goes further that upon default of Iurors the Iustices have authority at the Prayer of the Plaintiff or Defendant to command the Sheriff or other Minister to whom it appertaineth to make a return of such other able persons of the said County then present at the same Assises or Nisi prius which shall make a full Iury c. which cannot be intended of Aliens but of Subjects and therfore shall be of tryals which are onely of English and not of this Inquest which was part of Aliens And further the Tales was awarded only of Aliens as was alledged on the Defendants part but in this point it was a mistake for the Tales was awarded generally de circumstantibus which ought alwaies to be of such as the principall Pannell was But Per Curiam the exceptions were disallowed for albeit the Statute is as hath been said yet when the Statute comes to this clause which gives that a Tales may be granted by the Iustices of Nisi prius and is generally referred to the former part of the Act for it is added Furthermore be it enacted that upon every first Writ of Habeas Corpora or Distringas with a Nisi prius c. the Sheriff c. shall return upon every Juror 5 s. Issues at the least c which is generall of all And then it goes further And wills that in every such Writ oâ— Habeas Corpora or Distringas with a Nisi prius where a full Jury doth not appear before the Justices of Assise or Nisi prius that they have power to command the Sheriff or other Minister to whom it appertains to nominate such other persons as before which is generall in all places where a Nisi prius is granted and therfore this is not excepted neither by the Letter nor intent of the Law And where it is said such persons by it is to be intended such as the first which shall be of Aliens as well as English where the case requires it for expedition was as requisite in cases for or against them as if it were between other persons And Aliens may well be of the County or place where the Nisi prius is to be taken and may be there for although an Alien cannot purchâ—se Land of an Estate of Free-hold within the Realm yet he may have a house for habitation within it for the time that he is there albeit he be no Denison but be to remain there for Merchandise or the like And by Gawdy where the default was only of strangers the Tales might have been awarded only of Aliens as where a thing is to be tryed by Inquest within two Counties and those of the one County appear but not those of the other the
Tales might be of the other County only Davies versus Gardiner 3. AN Action upon the case for a Slander was brought by Anne Davies against Iohn Gardiner That wheras there was a Communication of a Marriage to be had between the Plaintiff and one Anthony Elcock the Defendant to the intent to hinder the said Marriage said and published that there was a Grocer in London that did get her with Child and that she had Vide this case reported Cook lib. 4. 16. b the Child by the said Grocer wherby she lost her Marriage To which the Defendant pleaded not guilty and was found guilty at the Assises at Aylesbury to the Damages of 200. marks And now it was alledged in Arrest of Iudgment that this matter appeareth to be meerly spirituall and therfore not determinable at common Law but to be prosecuted in the spirituall Court. But per Curiam the Action lies here for a woman not maried candot by intendment have so great advancement as by her Marriage wherby she is sure of maintenance for her life or during her Marriage and Dower and other benefits which the temporall Laws gives by reason of her Marriage and therfore by this slander she is greatly prejudiced in that which is to be her temporall advancement for which it is reason to give her remedy by way of Action at common Law As if a woman keep a Victualling house to which divers of great credit repair wherby she hath her livelyhood and one will say to her Guests that as they respect their credits they take care how they they use such a house for there the woman is known to be a Bawd wherby the Guests avoid her house to the losse of her husband shall not she in this case have an Action at common Law for such a slander It is cleer that shee will So if one saith that a woman is a common Strumpet and that it is a slander to them to come to her house wherby she looseth the adâ—antage which she was wont to have by her Guests she shall have her Action â—or this at common Law So here upon these collaterall circumstances wherby it may appear that she hath more prejudice then can be by calling of one Harlot and the like And Iudgment was given for the Plaintiff Hillary Term 36 Eliz. in the Kings Bench. IN Michaelmas Term 33 34 Eliz. Rot. 181. William and Joane his wife Administratrir of Andrew Stock brought an Action upon the Case upon an Assumpsit made to the Intestate for the payment of 5 l. to William Stock who imparled untill Tuesday next after Octa. Hillary next which was the 24th day of January and then the Defendâ—nt demanded Oyer of the Letters of Administration which were entred in haec verba Wherby it appeareth that the Letters of Administration were committed to the said Joane by Thomas Taylor Batchelor of Law Commissary to the Bishop of London c. wherby the Defendant pleaded that after the last continuance â—he said Letters Patents of Administâ—ation sealed with the Seal of the Vicar Generall of the said Bishop which he useth in this behalf and brought here into Court bearing date the 27th day of January 1591. which was three daies after the continuance committed the Administration to the said Defendant And pleaded further the Act of 37 H. 8. which sayes that it shall be lawfull hereafter for any person being a Doctor of the Law to be Chancellor Commissary or to exercise Ecclesiasticall Iurisdiction albeit he were a meer Lay person so that such a person be a Doctor as aforesaid and avers that at the time of the committing of the Administration to the said Joane the said Thomas Taylor was a meer Lay person and not Doctor Legis civilis nec minister allocatus according to the Laws of the Church of England wherby he had no lawfull power to commit the Administration Vpon which it was demurred generally and by all the Court the Plaintiff had Iudgment to recover for we are to consider what our Law was in this case before this Statute of 37 H. 8. And albeit a Doctor then affirmed that the Canon Law was that there was a meer nullity in such Administration so although the party that did it not being a Clark nor Doctor according to the Stat. of 37 H. 8. yet all the Iustices agreed that the Administration so committed will be adjudged in our Law to be of force and effect being shewn under the Seal of the Officer and committed by him who is reputed the Officer who ought to do it and is invested in the Office untill it be avoided by sentence and yet such an avoidance shall not make a mans act to be made void no more then if a meer Lay-man be presented to a benefice albeit this be a meer nullity in our Law and void yet we adjudge the Church full according to the publike admission constitution and induction and not according to the capacity of the person which is a thing secret untill such a one be deprived for it by sentence in the spirituall Court and yet the Church shall be in our Law void but from the time of deprivation of which notice ought to be given to the Patron So here he remains as to our Law an Officer untill his authority be defeated by sentence of the spirituall Court otherwise great mischief will happen for an infinite number of Administrations may be drawn in question by Averment that he who granted them was a meer lay person and so make such Garboils in the Common-wealth which is not to be suffered for the inconveniency which will happen by it and therfore our Law which is founded upon reason shall judge of it according to the open appearance of the Officer to wit that he hath a grant made to him and not according to the private capacity of the person and this is not altered by the said Statuts which is made in affirmation of it and makes the authority of a Doctor of Law absolute not to be defeated by the Civill or Canon Law which is not in the other case But yet it doth not make this case of worse condition then it was at Common Law And by all the pleading of the Administration committed to the Defendant is not good because it appeareth by the date of it that it was made after the day of the last continuance and therfore could not have been pleaded untill a new continuance after And by the Doctor the last Administration does not avoid the first but in case where there is an especial revecation of the first But they did not speak of the doublenesse because the Demurrer was generall and not speciall and also because the other matters were so cleer 2. IN Trespasse for carrying away certain Loads of Hay the case hapned to be this The Plaintiff pretending Title to certain Hay which the defend had standing in certain Land to be more sure to have the Action passe for Property him
in making pursuit And it is not the form of the pleading to alledge that he pursued him freshly and had him alwaies in his view untill he re-took him but only that he pursued him freshly and took him in this fresh pursuit without saying any thing that he was in his view and therfore his being out of the view of the Sheriff is not materiall in the case but the fresh pursuit and the taking of him in this pursuit Then Coke moved that the Bar was not good because he doth not shew where he made the pursuit so that he might agres to answer that which is alledged by the Plaintiff to wit his being at large at London and therfore the Bar not being good Iudgment shall be given against the Defendant for the insufficiency of his Bar for a Repleader shall not be in case of Demurs as it hath been adjudged here very lately and also in the Common Bench. To which it was answered by the said Iustices That if the Bar be insufficient in matter so that it may appear by it that the Plaintiff hath sufficient cause of Action which in matter is not sufficiently avoided by the Bar Judgment shall be given for the Plaintiff upon the Bar if the Replication be sufficient and no Repleader but if the Bar be sufficient for the matter and insufficient for the form only as it is here there before the Statute of Eliz. for pleading there shall be a Repleader but now because no Demurrer was upon the Bar but a Replication made to it therfore by Popham no advantage shall be taken of the Bar for matter of form which is admitted by the party and no advantage taken therof according to the Statute And they all agreed that the Sheriff albeit he did not make fresh pursuit upon the escape may yet take re-take the Prisoner who escaped from him out of Execution for the Prisoner shall not take advantage to avoid the Execution and therfore in respect of the Plaintiff who yet may accept the Prisoner to be in execution the Sheriff may re-take the Prisoner But if the Plai had recovered against the Sheriff before for the escape then the Sheriff for his Indempnity cannot re-take him but is put to his Action upon the Case against the Prisoner for the Sheriff hath no colour in such a case of escape to retake him but in respect and for the advantage of the Plaintiff who had Iudgment against the Prisoner and not in respect of the private wrong done to himself of which he hath no Iudgment and as it is now the Replication not being good by Popham Iudgment ought to be given against the Plaintiff But by assent it was ordered that the Defendant shall put in new Bail and that upon it he shall plead anew But how shall it be if the Sheriff do notmake fresh Suit and re-take him And afterwards he at whose Suit he was in Execution recovered against the Sheriff may the Prisoner have an Audita querela upon the matter Vpon an Assembly of all the Iustices at Serjeants-Inn in Fleetstreet with the Barens of the Exchequer it was cleerly agreed by them all but two who at the beginning made some doubt of it but at the end assented also If in the night the house of any be broken with an intent to steal any thing being in the house although no person be in the house at this time yet this is Burglary for the Law is that every one shall be in security in the night as well for their Goods as their persons which be in the house And if a Church be broken in the night for the stealing of any thing in it this is Burglary though no person be in it at this time And so hath the Law alwaies been put in execution and in all the Books which speak of Burglary it is not mentioned that any person ought to be in the house but that it is Burglary the Messuage being â—eckâ—n in the night to the intent to kill any person thâ—â—e or to the intent to steal any thing out of it And the case that of late time it hath been put in the Inditements of Burglary that some person was then there c hath been because that in such cases of Burglary Clergy was taken away but now by the Statute of 18 Eliz. Clergy is taken away in every case of Burglary And the ancient Presidents are Quod domum of such a one Nectanter Felonice burglariter fregit without making mention that any person was then in it or making mention that it was Domus mansionalis of any And it may be a Mansion House albeit no person then inhabit in it And agreed that hereafter it shall be so put in execution by all the Iustices See this more fully hereafter Trin. 36 Eliz. Pl. 1. in this Book AT Tres Paschae this Term there were made for Serjeants at Law viz. Lewkenor Savage and Williams of the Middle-Temple Heale only of the Inner-Temple Kingsmill Warburton Branthwaite and Flemming of Lincolns-Inn and Daniel and Spurling of Grayes-Inn And all the Iustices were assembled in the Middle-Temple Hall the Wednesday past Mâ—nsem Paschae being the second day of May where the two chief Iustices and chief Baron sate upon the Vpper-Bench of the same Hall in their Scarlet Robes with their Collers of S. S. and every one of the other Iustices and Barens in their Ancienty one on the one side and the other on the other side in their Scarlet Robes also and then came the new Serjeants in their black Gowns before the Iustices there the two eldest being put in the midst before the chief Iustice of England and so every one of them one on the one side and the other on the other side according to their Ancienty and every one of the said Serjeants having one of his Servants behind him at his back with his Masters Scarlet Hood and Coife upon his arms And therupon the said chief Iustice made his Speech in this manner IF men will enter into a due consideration upon what grounds the Laws of this Realm have their Original Foundation and what good effects are wrought through the due execution of the same they might say and that justly that the profession therof is both an honest and honourable Profession The Laws are derived partly from the law of God and partly from the Law of Nature From the Law of God in that it ordaineth means how the people may be truly instructed in the knowledge and fear of God How they should demean themselves towards their Soveraign and Prince How they ought to live one with the other and how to be defended from oppressions and injuries From the Law of Nature in that it provideth how each man may defend himself that he may live by his own labours or otherwise according to his profession or calling That he may secure his Posterity of that which he hath gathered together by his industry and that man with man
thing that is uncertain certain but shall serve as a Predict yet the words import that he had a Master and that his Master had a Cook to which all the Court agreed and Iudgment was given for the Plaintiff And another Action was brought for these words Scil. Thou hast sacrificed Thou hast sacrificed thy child to the Devill thy Child to the Devill and adjudged that the words were actionable Mich. 15. Iac. In the Kings Bench. Lee versus Brown IN an Ejectione firmae brought by Lee against Brown the Case was this Whether copyhold Lands may be intailed Tenant in Tail of Copyhâ—ld Land surrendred the same into the hands of the Lord to the use of I. S. wherupon two points did arise 1. Whether Copyhold Land be within the Statute of Donis conditionalibus so that iâ— may be intailed 2. Whether the Intail may be cuâ— off by the surrender Doderidge Iustice said as to the first point that it hath been a great doubt whether it may be intailed but the common and better opinion was that by the same Statute co-operating with the custom it may be intailed and with this agrees Heydons case in my Lord Cokes 3. Report and so was the opinion An Intail of copyhold lâ—nd nâ—t to be cut off by â—urrender unlesse by speciall custom of the Court. And for the second point their opinion also was that it could not be cut off by surrender unlesse it were by speciall custom and they directed the Iury accordingly And it was said to maintain this custom it ought to be shewn that a Formedon had been brought upon such a Surrender and Iudgment given that it doth not lye yet it was agreed that it was a strong proof of the custom that they to whose use such Surrenders had been made had enjoyed the Land against the Issues in Tail And it was said by the Counsell of the Defendant that there was a Verdict for them before in the same case which they could prove by witnesses but the Court would not allow such a proof because it was matter of Record which ought to be shewn forth In the same Term in the Common Pleas. May versus Kett. AN Action upon the Case was brought for these words viz. Thou hast Words Thou hast stoln my Corn out of my Earn stoln my Corn out of my Barn And it was moved in Arrest of Iuâ—gment because he had not said how much he had stoln and perhaps it was of small value and yet it was adjudged that the Action would lye for it is at least petit Larceny But if he had said that he had stoln his Corn generally it had not been actionable for it might have been growing and then it had been but a Trespasse The same Term in the Star Chamber Riman versus Bickley and others IOhn Riman exhibited a Bill in the Star Chamber against Thomas Bickley and Anne his Wife Dr. Thorn Mr Goulding and others Defendants the said Anne was first married to Devenish Riman the Plaintiffs Son and between them were many â—ars and disâ—greemâ—nts and the said Devenish was much given to drinking and other Vices and divers times did beat and abuse his Wife and was also jealous of the saiâ— Thomas Bickley and his Wife being at a certain time at Supper with Dr. Thorn Goulding and others spake such words as these having communication thâ—t her Husband did beat and abuse her to wit That she heard that his Father had that quality and being once whipt for it was the better ever after and that if she thought it would do her Husband any goâ—d she would willingly bestow 40 s. on some body to give him a whipping wherupon Gâ—ulding said that he would give him a Medâ—cine for his Mâ—lâ—dy and within two daies after he came in the night in womâ—ns apparrell with a Weapon under his Cloak and with a Rod and wenâ— into the House and Chamber of the said Devenish and would have whipped him and in striving together there was some hurt done on either side but Gâ—ulding not being able to effect his purpose fled and this was conceived to be by the procurement of Anne his wife And not long after Devenish fell sick and sent to his said wife for certain necessaries which she would not send him and presently after Devenish died and she refused to come to his buriall And although it were much disliked that Devenish should abuse his Wife in such uncivill manner as to strike and beat her and as Coke late chief Iustice said it is not lawfull by the Act Military for one man to strike another in the presence of Ladies yet it was resolved by the whole Court that it was a great misde meanor in the Wife and uncivill and undutifull carriage in her to do so to her Husband as they use to do to Children or fools to wit to give them the Whip and so to disgrace and take away the good name of her Husband which viz. A mans good name and his Childrens are the two things which make a man live to Posterity as was said by Sir Francis Bacon Lord keeper and the Court fiâ—ed the Wife 500 l. and it was said that Thomaâ— Bickley her noâ— Husband well deserved to pay this Fine because he was too familiar with her in the time of his Predecessor and as the Bishop of London said Devenish Rimon lay upon her hands and Thomas Bickley upon â—eâ— heart And to aggravate this matter a Letter was shown whiâ—h Devenish Rimon wrote to his Wife in which he called her Whoor and told her somwhat roundly of her faults and she wrote back to him in the Margeâ—t that he lyed and wished him to get a better Scribe for his next Lâ—â—ter for he was a Fool that wrote that wherin she called him Fool by craft And Goldings offence was accâ—vnted the greater because he was a Minister so that he was fined 500 l. also And Coke said that the course of this Court was that if any were fined who is not able to pay it Respondeat superior he that is the principall and chief agent therin must answer it for otherwise poor men might be made Instruments of great mischief who are not able to answer and the greater Offenders shall escape which the Lord Keeper confirmed And as to Doctor Thorn he was acquitted by all And the Bishop of London said that they had thought to have troad upon a Thorn and they gat a Thorn in their foot And by Coke if Devenish Rimon had died upon it it had been capitall in the Wife who procured it for it was an unlawfull Act. The same Term in the Kings Bench. Wescot versus Cotton THe case was this An Infant Executor upon an Action brought against Where an Infant Executor may declare by Attorney but not defend by Attorney but by Guardian him appeared by Attorney where he ought to appear by Guardian and it was resolved by the Court that this was Error for this
doth much concern the Infant in as much as by his false plea he shall be bound to â—nswer of his own Goods if he hath no Goods of his Testator and therfore in a 11 E. 4. 1. he hath remedy against his Guardian for pleading a false Pâ—ea And by Doderidge if he hath no Guardian the Court shâ—ll appoint him a Guardian And if an Infant bring an action as Executor by Attorney and hath Iudgment to recover this is not erronious because it is for his benefit so per Curiam the difference is where he is Plaintiff and where he is Defendant And there is another difference where he is Executor and where not for being Executor his Plea might have been more prejudiciall to him and Coke lib 5. Russels case was agreed for good Law for an Infant may be Executor and may take money for a Debt and make a Release and give an Acquittance but not without a true consideration and payment of the money The same Term in the same Court. Thomas Middletons Case THomas Middleton alias Strickland was condemned for a Robbery at the Where a Felon is condemned and elcapeth and is re-taken upon confession that he is the same party execution may be awarded The Sheriff of Middlesex fined for not attending the Court. Assises in Oxford after which he made an escape and being taken again he was brought to the Bar and upon his own confession that he was the same party who did the Robbery and that he was condemned for it the Court awarded execution And Mountague chief Iustice said thâ—t was no new case for it had been in experience in the time of E. 3. and 9 H. 4. and 5. E. 4. that the Court might so do upon his own confession And because the Sheriff of Middlesex did not give his attendance upon the Court in this case nor came when he was called the Court fined him 10 l And Mountage said that it shall be levied by proces out of the Court and also all other Fines there assessed and not estreated into the Exchequer for then the party might compound for a matter of 20 s. and so the King be deceived The same Term in the same Court. Gouldwells Case IOhn Gouldwell seised of Land in Socage Tenure devised them to his Wife for life the Remainder to John Gouldwell his Son and his Heirs upon Condition that after the death of his Wife he shall grant a Rent-charge to Steven Gouldwell and his Heirs and if John Gouldwell dye withâ—ut Heirs of his body that the Land shall remain to Steven Gouldwell in Tail the Wife dieth John Gouldwell grants the Rent accordingly Stephen Gouldwell grants the Rent over John Gouldwell dies without Heir of his body and the second Grantee distrains for the Rent arrear and Stephen Gouldwell brings a Replevin And it was urged by the Counsell for the Plaintiff that this Rent shall not have continuance longer then the particular Estate and cited 11 H. 7. 21. Edriâ—ks case that if Tenant in Tail acknowledge a Statute this shall continue but during his life and Dyer 48. 212. But it was agreed per Curiam that the Grantee was in by the Devisor and not by the Tenant in Tail and therfore the Grant may endure for ever But for the second point this being to him in Remainder the intent of the Demisor is therby explained that he shall have the Rent only untill the Remainder come in possession for now the Rent shall be drowned in the Land by unity of possession 3. It was agreed and resolved that by the granting of the Kent over this was a confirmation And Mountague said that it was a confirmation during the Estate Tail and shall enure as a new grant afterwards And Haughton and Doderidge said that they would not take benefit of the grant over by way of confirmation for as Haughton said this enures only ought of the Devisor and he hath power to charge the Land in what manner he pleaseth and it is like to an usuall case as if a man makes a Feoffment in Fee to the use of one for life the Remainder over with power to make Leases and after he makes a Lease this is good against Tenant for life and him in the Remainder also And I have considered what the intent of the Devisor should be in granting of this Rent and it seems to me that in as much as the Land is limited in Tail and the Rent in Fee that by this the Grantee shall have power to grant or dispose of the Rent in what manner he would but if the Land had been in Fee I should have construed his intent to have been that the Grantee should have the Rent only untill the Remainder fall to which Doderidge agreed who said that we are in the case of a Will and this construction stands with the intent of the Devisor and stands with the Statute which saies Quod voluntas Donatoris est observanda The same Term in the same Court. Baskervill versus Brook A Man became Bail for another upon a Latitat in the Kings Bench and before Iudgment the Bail let his Lands for valuable consideration Difference between baile in the Kings Bench and the Common Pleas. And how a bail shall relate And afterwards Iudgment was given for the Plaintiff And now it was debated whether the Land Leased shall be liable to the Bailment and it was said by Glanvill of Councell with the Lessee that it ought not to be liable and he put a difference between a Bailment in this Court and a Bailment in the Common Pleas for there the Suit cometh by originall and the certainty of the debt or demand appeareth in the declaration and therfore then it is certainly known from the begining of the Bailement for what the Bail shall be bound But in this Court upon the Latitat there is not any certainty untill Iudgment given before which the Land is not bound and now it is in another mans hands and therfore â—ot liable and he puts Hoes case Co. lib. 5. 70. where iâ— was resolved that where the Plaintiff releaseth to the Bail oâ— the Defendant upon a Suit in the Kings Bench before Iudgment all Actions Duties and Demands that this Release shall not bar the Plaintiff for there is not any ceâ—tain duty by the Bail before Iudgment and therfore it cannot be a Release and he citeâ— the case of 21 E. 3. 32. upon an account and said that it was like to a second Iudgment in that which reduceth all to a certainty and therfor c. But it was said by Mountague and Crook that the Lessee shall be bound for otherwise many Bailments and Iudgments shall be defeated which will bring a great Inconvenience And Mountague said that it was like to the case of a bargain and sale of Land which after it is Inrolled within six moneths shall relate to the beginning of the Bargain so upon the Iudgment given relation is made from the time
est rerum omnium vendendarum mensura Bracton 117. 18 E. 3. Hollinghead 109. 50 E. 3. Rot. Pat. Memb. 7. And for transportation 17 E. 3. 19 E. 3. Rot. Pat. 24. De monetis non transportandis 19 R. 2. Rot. Pat. The Dutches of obtained licence to melt Coin to make Plate And divers of the Defendants were within the Kings generall pardon but in as much as they pleaded it in their Rejoynder and not in their answer as it ought to be the Court over-ruled their Plea so that they could have no advantage therby But in as much as they were strangers and not coâ—usant of our Laws and relyed only upon their Counsell the Court had consideration therof in their censure Hillary 17 Jac. In the Kings Bench. Serle versus Mander SErle brought an action upon the case against Mahder for these words to Words I arrest you upon Felony wit I arrest you upon Felony and after Verdict for the Plaintiff it was moved in Arrest of Iudgment by Richardson that the words were not actionable for he doth not say that the Plaintiff had committed Felony But it was rescived by the Court and so adjudged that the action lieth The same Term in the same Court A Iudgment was obtained against one of the Servants of the Lord Hay Iudgment against a Defendant when beyond Sea with an Ambassador reversed Viscount Doncaster when he was Ambassador in Bohemia and attending upon him there And this matter being disclosed to the Court by the Counsell of the Defendant they would not suffer the Plaintiff to have execution upon the said Iudgment but ordered the Plaintiff to declare De novo to which the Defendant should presently answer Memorand It was said to be against the course of the Court to have an Imparlance Imparlance before the Declaration entred The same Term in the same Court The King against Briggs A Quo warranto was brought by the King against Briggs for exercising A Subject cannot have a Forest of certain Priviledges who justified by virtue of a Forest granted to him And by Bridgeman this is the first Quo warranto which he knew that had been brought against any Subject for a Forest for a Subject cannot have a Forest but he may have a Chase which peradventure may passe under the name of a Forest And there are divers incidents to a Forest which a Subject cannot use nor have there ought to be a Iustice of a Forest which a Subject cannot have and such a Iustice ought to be a man of great Dignity 2. There ought to be Verderors who are Iudges also and by 34 E. 1. Ordinatio Forrestae ought to be by Wait but a Subject cannot award a Writ Also there are three Courts incident to a Forest 1. A Court of Attachments which may be without Verderors 2. The Swanimate Court 3. The Iustice seat and this appeareth in 1. E. 3. cap. 8. 21 E. 4. cap. 8 But by the Statute of 27 H. 8. cap. 7. There are some other incidents to a Forest 2. Admits that a Subject may have a Forest yet it fails in this case because he hath shown the exemplification and not the Letters Patents and see Co. lib. 5. Pains case that neither an exemplification or constat are pleadable at Common Law and Co. lib. 10. Dr. Leyfeilds case The same Term in the same Court Sir William Webb versus Paternoster THe case was this Sir William Plummer licensed Sir William Webb to lay his Hay upon the Land of the said Sir William Plummer untill he could conveniently sell it and then Sir William Plummer did make a Lease of the Land to Paternoster who put in his Cattell and they eat up the Hay And it was two years between the license and the putting in of the Cattell and yet Sir William Webb brought an action of Trespasse against Paternester for this Mountague chief Iustice 1. This is an Interest which chargeth the Land into whosoever hands it comes and Webb shall have a reasonable and convenient time to sell his Hay 2. The Lessee ought to give notice to Notice Sir William Webb of the Lease before he ought to put in his Cattell to which Haughton Iustice agreed in both points But Doderidge Iustice said that Sir William Webb had no certain time by this license yet he conceived that he ought to have notice But it was resolved that the Plaintiff had Convenient time a convenient time to wit two years for the removing of his Hay and therfore Iudgment was given against him But admit that there had not been a convenient time yet the Court was of opinion that the Plaintiff ought to have inclosed the Land at his perill for the preservation of his Hay And it was agreed that a license is countermandable although it be concerning A license whether for profit or pleasure countermandable profit or pleasure unlesse there be a certain time in the license as if I license one to dig Clay in my Land this is evocable and may be countermanded although it be in point of profit which is a stronger case then a license of pleasure see 13 H. 7. The Dutches of Suffolks case for a license The same Term in the same Court SIbill Westerman brought an action upon the case against Eversall and had Error Sibell for Isabell Iudgment and in the entry of the Iudgment she was named Isabell 1 Ass and 3. Ass A Fine was levied by Sibill when her name was Isabell and it was not good for it doth not appear to be the same party so in the case at the Bar And for this the Iudgment was reversed The same Term in the same Court JEne as Executor of brought an action upon the case against Chester An Infant chargable for necessary Apparrell because the Defendant made request to the Testator of the Plaintiff to buy for him certain silk Stuffs for Apparrel and to make him a Cloak the Defendant pleaded that he was within age and George Crook said that the Defendant should not be charged because it is not shewn that the Apparrell was for the Infant himself but he was over-ruled in this for it is sufficiently expressed to be for him And it was agreed by the Court that it ought to be shewn that it was Pro necessario vestitu and it ought to be suitable to his calling and as Doderidge said that there was a case adjudged in this Court between Stone Withipole that where Withipole had taken of Stone certain Stuffs for Apparrel being within age and afterwards he promised payment if he would forbeare him some time and the Assumpsit adjudged not good because he was not liable for the Debt at first for the reason aforesaid Trin. 17. Jac. In the Common Bench. Gilbert de Hoptons Case AN action upon the case was brought for those words viz. Thou art a Words Thou art a Theef and hast stoln my Furze Theef and hast stoln
naturall Jones Iustice There is great difference between a way and a water-course as to this purpose for admit that this water-course after that it had been in the Curtilage of the Plaintiff goes further to the Curtilage of another shall not that other have the benefit of this water-course notwithstanding the unity of possession I think cleerly that he shall Doderidge my opinion is that the water-course is not extinguished by the unity of possession But some conceived that he had declared his opinion in terror to the Defendant And afterwards the same Term Barksedale for the Plaintiff said that he had agreed the case before and therfore would now only indeavour to answer some exceptions which had been taken to the Declaration 1. Exception hath been that no prescription or custom is made for this water-course but only that Currere solebat consuevit But I conceive thaâ— the Declaration is good notwithstanding this because the Plaintiff here doth not claim an interest in the Water-course but in the Land in which c. and therfore it is good and this appeareth by 12 E. 4. 9. the Prior of Lantonies case in a prescription in a Market overt generally and the reason there was because he was a stranger as in our case he is and this pleading appeareth also to be good by Cooks Book of Entries 18. Smiths case which was entred 9 Jac. Rot. 366. in this Court 2. Exception was because it is not said that it was Antiqua Rectoria 3. Exception because it doth not appear that he was a spiritual man to whom the Demise of the Rectory was made 4. Because it is not said that the Water-course Ad predict Rectoriam pertinet 5. Because the Water-course is alledged to be for his customary Tenants of the said Rectory and this is not good as appeareth by 21 Eliz. Dyer 363. Prescription Pro quolibet customar Tenente is not good but I conceive that this case is not our case for here is Customarius tenens Rectoriae and there it is agreed that Quilibet customarius tenens Maner had been good And the plea in Bar hath salved these objections and therfore he prayed judgment for the Plaintiff Jeremy for the Defendant And first for the matter in Law it seemed to him that by the unity of possession the Water-course is extinguished and the Water-course may well be compared to the case of the way for as a way is a passage for men over the land so water hath passage upon the land and a way is extinguished by unity as appeareth by 21 E. 3. 2. 11 H. 4 5. 21 Ass and Davies Reports 5. and in 4 Jac. Jordan and case it was the better opinion that a way was extinguished by unity of possession true it is that there Popham chief Iustice put the difference where the way is of necessity and where not for where the way is of necessity there it shall not be extinguished This case hath been compared to the case of a Warren in 35 H. 6. but I conceive that the cases are not a like because a Warren is a meer liberty 8 H. 7. 5. A man may have a Warren in his own Land and Co. lib. 7. Buts case by a Feoffment of Land a Warren doth not passe but this Water-course hath its originall out of the Land and this case cannot be compared to an ancient Water-course running to a Mill for notwithstanding the unity it shall passe with the Mill for otherwise it shall not be Molendinum aquatinum so that the water there is parcell of the thing and so of necessity ought to passe with the thing but here it doth not appear that it is a Water-course of necessity and for any thing that appeareth it may be filled with another Water-course Also I conceive that the Declaration is not good 1. Because neither prescription nor custom is laid for the Watercourse and it appeareth in Co. Book of Entries Holcome and Evans case and the old Book of Entries 616 617. Mich. 1. Car. Rot. 107. Turner and Dennies case in this Court in trespasse for breaking his Close c. the Defendant justified for a way c. and that he was possessed for years and for him and his Occupiers had a way over the Land the Plaintiff demurred and resolved that the prescription is not good 2. The Declaration is insufficient being an action upno the case for the stopping of a Water-course and it is not Vi armis nor Contra pacem Co. lib. 9. 50. the Earl of Shrewsburies case when there are two causes of an action upon the case the one Causa causans the other Causa causata causa causans may be alledged Vi armis for this is not the immediate cause of the action but Causa causata F. N. B. 86. H. and 92. E. in the end of the Writ of action upon the case shall be Contra pacem 3. Also he hath prescribed for the Tenants of the Rectory which is not possible for no Lay-man could be Tenant of a Rectory or of Tithes before the Statute of H. 8. and therfore I pray Iudgment for the Defendant Whitlock chief Iustice conceived that the declaration was good the bar is naught both for the form matter the question here is of Aqua profluens and I conceive that there needs no prescription or custome in this case for water hath its naturall course and as is observed by Brudnell in 12 H. 8. Natura sua descendit it may be called Usu captio or Vsage and he conceived that the action upon the case very well lies in this case like to the case where a man bath a house and windows in it and another erect a new house and stop the light then I may have an action upon the case but true it is that I shall not only count for the losse of the aire but also I ought to prescribe that time out of mind light have entred by these windows c. see 7 E. 3. If there be a School-master in a Town and another erect a new School in the same Town an action upon the case doth not lye against him because Schools are for the publike benefit and every private man may have a School in his house And for the exception that a Lay man cannot be possessed of a Rectory I conceive that the Declaration is good notwithstanding for a Lay-man may have a Rectory by Demise And for the Plea in bar it is not good for the form because that Searles entred and enfeoffed Pigot and it is not said that he entred and Expulit and if a man enter and make a Feoffment the owner being upon the Land the Feoffment is void and therfore an actuall Ouster ought to be shown And for the matter in Law he conceived that the Bar was not good for by the unity of possession the water-course is not extinguished and yet I agree the cases of a way and common upon the differences of Rights which are
same time nothing works by the Livery for the reason before given by Jones For the matter of Law he conceived that the unity of possession doth not extinguish the Water-course and that for two reasons 1. For the necessity of the thing 2. From the nature of the thing being a Water-course which is a thing running 1 For the necessity and this is the reason that common appendant by the unity of possession shall not be extinguished for it is appendant to ancient Land-hide and gain arable Land which is necessary for the preservation of the Common-wealth and as in this case there is a necessity of bread so in our case there is a necessity of water And for the case of a way Distinguendum est for if it be a way which is only for easement it is extinguished by unity of possession but if it be a way of necessity as a way to Market or Church there it is not extinguished by unity of possession and accordingly was the opinion of Popham chief Iustice which I take for good Law and the case of 11 H. 7. 25. is a notable case and there a reason is given why a Gutter is not extinguished by unity of possession because it is matter of necessity 2. From the nature of water which naturally descends it is alwais current Et aut invenit aut facit viam and shall such a thing be extinguished which hath its being from the Creation Co. lib. 4. Luttrels case a Mill is a necessary thing and if I purchase the Land upon which the streams goes which runs to this Mill and afterwards I alien the Mill the Water-course remains So if a man hath a Dye-house and there is a water running to it and afterwards he purchase the Land upon which the water is current and sell it yet he shall have the Water-course Dyer Dame Browns case and the principall case in Luttrels case a Fulling-mill made a Water-mill this shall not alter the nature of the Mill but yet it remains a Mill so the water hath its course notwithstanding the unity and he concluded for the Plaintiff Crew chief Iustice I agree that the Declaration is good and also that the Bar is good for the manner but for the matter in Law I conceive that it is not good In our Law every case hath its stand or fall from a particular reason or circumstance For a Warren and Tithes they are not extinguished by unity because they are things collaterall to the Land And for the case of 13 Eliz. in Dyer of an Inclosure I conceive that by the unity the Inclosure is destroyed for the Prescription was interrupted and in Day and Drakes case 3 Jac. in this Court it was adjudged that in the same case the Prescription was gone It may be resembled to the case of Homage Ancestrell 57 E. 3. Fitzherbert Nusans And for our case it is not like to the cases of Common or a Way because the Water-course is a thing naturall and therfore by unity it shal not be discharged also there is a linement out of which every man shall have a benefit and therfore he concluded that Iudgment should be given for the Plaintiff And Iudgment was commanded to be entred for the Plaintiff The same Term in the same Court. Welden versus Vesey AN action of Debt was brought by Welden Sheriff of the City of Coventry against Vesey upon the Statute of 29 Eliz. cap. 4. and declares that it is provided by this Statute that no Sheriff or Minister c. shall take for an execution if the summ doth not exceed 100 l. but 12 d. for every 20 s. and being above the summ of 100 l. 6 d. for every 20 s. and shews that wheras the said Vesey had judgment against one in an action of Debt that the Plaintiff by virtue of a Capias directed to him took the body of the said person condemned and that it was delivered to the Plaintiff and that he for levying of the money had brought this action The Defendant by way of Bar saith that it is provided by this act that it shall not extend to Executions in Towns Corporate and that this was within Coventry and so demurred upon the Declaration And Whitwick argued for the Plaintiff two things are considerable in this case 1. Whether where the summ exceeds 100 l. the Sheriff shall have 12 d. for every 20 s. of the 100 l. and 6 d. for that which is over or 6 d. only for every 20 s. for all the summ 2. Whether this Statute extend to Iudgments in Towns Corporate For the first the letter of the Statute is cleer that he shall have 12 d. for the first 100 l. and 6 d. for the residue for the Statute is that if it be above 100 l. Whether a Sheriff or c. shall have 12 d. in the pound for the first 100 l. and 6 d. for the rest upon an Execution that he shall have but 6 d. therfore if it be under a 100 l. he shall have 12 d. for every 20 s. And the meaning of the Statute is plain also for otherwise the Sheriff shall have a lesser Fee where it is above a 100 l. as where it is a 199 l. then he shall have for 100 l. but this was not the intent of the Statute but the greater the Execution the greater the Fee It was adjudged in one Gores case 10 Jac. that an action of Debt lies upon this Law Pasch 14 Jac. Rot. 351. Brole and Tumblerson Sheriffs of the City of London brought Dabt against Nathanael Michell for execution of 400 l. for 12 l. 10 s. scil 5 l. for the first 100 l. and 6 d. for every 20 1. after But I confesse that the principall question there was whether an action of Debt lies for the money and it was resolved that it did and Iudgment was given for the Plaintiff 2. To the Proviso that this doth not extend to Fees in a Town Corporate whether this extend to executions which go out of Iudgments in this Court or in the Common Pleas into Towns Corporate The Statute shews that before that time the Sheriff had taken great Fees which the Parliament considering restrained them to a certainty The words of the Proviso are generall Provided that this Act shall not extend to any Fees to be taken for any Execution within any City or Town Corporate and although the words be generall yet the exposition shall be according to reason as it is said in Fulmerston and Stewards case in Plow Expesition shal be made against the words if the words be against reason 5 H. 7. 7 38 H. 3. Broo. Livery 6. The King shall have primer Seisen of all Lands of his Tenant which he holds of him in Capite but if one holds of the King in Capite in Socage he shall pay no primer Seisen to the King and this Statute shall have this intendment that this Proviso shall extend only to Executions upon Iudgments
shall it be in the case Doderidge Justice the Servant may have the Action also If the Servant be robbed of wares the Master or Servant may have an appeale 8. E. 2. Tit. Robbery two joynt Merchants one is Robbed both shall joyne in the Action and may also joyn in the appeal But it may be objected as Whitlock Iustice did that the Master is not Hospitans I say this is to no purpose A man put his Horse in the Stable and before he goes to bed or lodging the Horse is gone he shall have an action although he did not lodge there For the word transeuntes although he be at the end of his Iourney yet it is within the custom and he shall have action And by Crew if I send cloath to a Taylor and it is stoln from him the Taylor shall have an action of trespasse or the Owner Jones the case of Hue and Cry is a more stronger case then this is for there the Servant ought to swear that he is robbed and yet the Master shall have an action And for the word transeuntes all agreed that although he be at the end of his journey or at an Inne in London yet he is within the remedy of this Law And if a man stay in an Inne a moneth or a quarter of a year shall not he have an action if he lose his Goods Doderidge agreed that if a man be boarded in an Inne and his Goods are stoln he shall not have an action upon this Law And notwithstanding this objection judgment was given for the Plaintiff upon the Verdict Trin. Term 2 Car. In the Kings Bench. Sir William Buttons Case SIr William Button a Iustice of Peace brought an action for these words Sir William Buttons men have stoln Sheep and he spake to me that I should not prosecute them and it seems that the action did not lye because Words Sir William Buttons men have stoln Sheep and be spake to me that I should not prosecute them Sir William did not aver that he is a Iustice of Peace and it doth not appear in what County the said Felony was done 36 Eliz. One brought an action for these words A. is a cosening fellow and the greatest Pickpurse in Northamptonshire and there is not a Purse picked within 40. miles of Northampton but he hath a hand in it And the action did not lye because he did not aver that there were Purses cut Jones Iustice put this case One saith that A. is as strong a Thief as any is in Warwick Gaol he ought to aver that there is a Theef in Warwick Gaol or otherwise they are not actionable Doderidge put this case There is a nest of Theeves at Dale and Sir Iohn Bridges is the maintainer of them these are actionable because it implies maintenance Note that it appeared upon a motion which the Attorney-generall made against one Lane who is a Recusant in Northamptonshire that a Lease for years made by a Recusant of his own Lands after conviction if it be Bona fide will bind the King but if it be upon fraud and covin then it will not and Whitlock said that it is a common course for Recusants to make Leases after their Indictment and before conviction The same Term in the same Court The Case of the Major Bayliffs and Jurates of Maidstone IN a Quo warranto depending against the Mayor Bayliffs and Iurates of Maidstone in Kent Serjeant Finch of Counsell with them of Maidstone put the case briefly in effect thus In the Quo warranto against them it was ordered by the Court that they should have day to plead untill afornight after Trinity Term and the truth was that they had not pleaded accordingly wherupon Iudgment was entred in the Roll and the Writ of Seisin awarded and execution therupon and afterwards by a private order in the Vacation by the chief Iustice and Iustice Jones it was ordered that the Iudgment should be staid and the truth was that it was never entred amongst the Rules of the Court and therfore he prayed that the Iudgment might not be filed but that the last order might be observed and that they might amend their Plea Hendon Serjeant on the other side said that it could not be for by the Iudgment given the King was intitled to have the profits of Franchises which he shal not lose he cited the case which is in F. N. B. 21. Error in B. R. cannot be reversed the same Term before the same Iustices without a Writ of Error but otherwise it is in C. B. and he said that the same course was observed in Eyre there can be no pleading in Eyre after the Eyre determined and upon this he cited the case of 15 E. 4. 7. before the Iustices in Eyre if the Defendant does not come the Franchises shall be seised into the Kings hands nomine destinctionis and if the party who ought the Franchise doth not come during the Eyre in the same County he shall forfeit his Franchise for ever so here after Iudgement entred there can be no plea per que c. Finch we have order from the Court for stay of Iudgement here no perfect Iudgement was given and this is not without president and he cited one Chamberlains Case where the Iudgement was nigh to perfection c. but he did not put the Case Creve ch Justice in this case there was the assent of the Attorney generall who prosecuted the Quo Warranto and so the cases put by Hendon to no purpose Jones upon F. N. B. 21. J. took this difference true it is that the Kings Bench cannot reverse a Iudgement although it be in the same term without a Writ of Error but this is where error lies in Where the Kings Bench may reverse its owne judgmeÌ„t without Writ of Error and where not the same cause in the same Court as upon outlawry but if no error lies in this Court for the same cause but in Parliament then the Kings Bench may reverse the Iudgement without Writ of Error being the same term And the Iudgement here was ever of Record for the Roll untill it be fixed amongst other Rolls is no Record And for the Case of 15. E. 4. 7. it is not like our case in reason for when When a Roll â—s become a Record the Eyre is determined the power of the Iustices in Eyre is also determined but it is not so here for the Iustices have power from Term to Term But Noy argued further for the King that it is a Iudgement of another Term and Execution awarded upon it and said that it is without president that now it should be avoyded and upon the awarding of execution the King under his seal hath averred that judgement is given which cannot be falsified and for Chamberlains Case he said that there was an assent in it Doderidge the Question which now is moved is but this whether a Iudgement entered in a private Roll
Iudgement for the Plaintiff The same Term in the same Court NOta by Doderidge and Jones Iustices that upon the principall Iudgement reversed the outlawry is also Ipso facto reversed Also if an Outlawry reversed upon revers all of the principall judgement outlawry be awarded if it be not per Judicium Coronator unlesse it be in London the outlawry is voyd It was demanded by the Iustices when the outlawry and Iudgement are affirmed how the entry is And it was answered by Broome Secondary that the entry is generall Quod judicium affirmetur in omnibus and this sufficeth But if the Iudgement be affirmed and the outlawry reversed then the entry is Quod judicium affirmetur Utlagario cassetur The same Term in the same Court Calfe and others versus Nevil and others AScire facias was brought by Joseph Calfe and Joshua Executors of A. against Nevil Davyes and Bingley and the Case was this they became bayle to one Hall who was condemned in an Action to the Testator of the Plaintiff that the said Hall should either render his body to Prison or that he should satisfie the Iudgement the Defendents Plead that after the Scire facias returned and presently after the Iudgement the said Hall brought a Writ of Error in the Exchequor Chamber hanging which the said Hall reddidit se prisonae in exoneratione manucaptorum suor and there dyed and the Plaintiffe demurred upon this Plea because it was double and Calthorp argued for the Plaintiff that it was double or rather treble 1. That Reddidit se prisonae 2. That he was imprisoned 3. that he dyed in Prison And to prove the Piea double in this Case he cited 13. H. 8. 15. 16. 4. E. 4. 4. 21. H. 7. 10. The second matter that he moved against the former was that pendant the Writ of Error reddidit se prisonae and doth not conclude upon the Record hoc peratus est verificare as he ought to have done and for this he cited 7. H. 8. Kelleway 118. If J. S. bee bound in a Recognizance that A. shall appeare such a day before the Kings Iustices at Westminster if his appearance be not recorded hee shall not have any averment by Bricknell and Conisby and in 30. Eliz. It was one Wicks Case which is ours in effect in case of baile Dyer 27. 6. E. 4. 1. 2. For the matter the Plea is nought 1. Because by the Writ of Error brought the Scire facias against the baile is not suspended because the Bayle is a distinct record and upon this he cited the Case of the Ambassador of Spain against Captaine Gifford which was Trin. 14. Jac. That by the Writ of Error brought the baile was not suspended and he said that it was so resolved also in Goldsmith and Goodwins Case 2. For the render of the principall to prison it is not good because it doth not appear upon Record and for this he cited one Austin and Monkes Case which was in 14. Jac. In Scire facias against the baile it is pleaded that the principall had rendered himselfe to prison and upon the matter it appeared that the render was upon Candlemas day which is not Dies juridicis and so the Court this day had no power to commit him to prison for which the Plea was adjudged voyd 3. For the death it is no Plea the baile by it is not discharged because he hath not rendered himselfe in due time and for this he cited Justice Williams and Vaughans Case which was Mich. 3. Jac. where in Scire facias against the baile they pleaded that the principall was dead and thereupon the Plaintiff demurred and in this Case two points were resolved 1. There was no Capias mentioned to have issued against the principall and yet resolved that a Scire facias would lye against the Baile 2. That the Plea in Bar is not good because it may be that the principal dyed after the Capias awarded or after the return thereof because it appeareth that there was once a default in the principal and so the baile forfeited and no Plea afterwards would discharge it and upon this he put this Case A Prisoner escape out of Prison the Goaler makes fresh suit and before he hath taken him the Prisoner dies this is the act of God and yet because it was once an escape an Action of Escape lyes against the Goaler Jermy for the Defendent and he remembred a Case which was Hil 20. Jac. Cadnor and Hildersons Case that by the Writ of Error the bayle is suspended Nota that it was agréed by the Court in this case that by the Writ of Error brought in the bayle was not discharged because it is incertain whether the Iudgement shall be reversed or not Also it was agreed that if the principal dies before a Capias awarded against him that the bayle is discharged It was also agreed by the Court that the Plea was not double for the first matters are but an inducement to the last and yet by Doderidge if severall matters are pleaded in Bar and there be not any dependency on them the Where a Plea is double and where not Plea is double although none of them be materiall but one Jones Justice cited one Hobs and Tadcasters Case which was 43. Eliz. in B. R. where after a Writ of Error brought a Scire facias issued against the Bayle and upon Nihil returned the Plaintiff in the Scire facias brought in an Audita Quaerela and there the matter came in question whether upon the Iudgement the Principall ought presently render himself to prison or that he should stay until a Capias awarded against him and there it was resolved by Popham and all his Companions that the Principal is not bound to render himselfe to Prison untill a Capias be taken out so that if he dies after the Iudgement and before the Capias awarded against him the Bayle is discharged And in the principal Case here it was resolved that a Scire facias does not lye against the Bayle until a Capias be awarded against the Principal because no Capias in this case was awarded against the Principal which could not be by reason of the Writ of Error before his death And also the Plaintiff in his Declaration ought to have averred and shewn that the Capias was awarded against the Principal for these reasons Iudgement was given quod quaerens nil capiet per Billa The same Term in the same Court. Reynor versus Hallet IN an Action upon the Case for these words viz. Reynor is a base Gentleman Words Reynor is a base Gentleman he hath foâ—â— childâ—en by his seâ—vant Agnes and he hath killed or caused them to be killed he hath four children by his Servant Agnes and he hath killed them all or caused them to be killed and after a verdict for the Plaintiff it was moved in arrest of Iudgement by Jermy that the words were not actionable For 1.
As to the first words Base Gentleman they are but words of choller 2. The next words He hath four Children by his servant Agnes cannot be actionable for although she were once his servant yet she might be afterwards his Wife 3. The Plaintiff hath averred in his Declaration that he hath lived continently and then he cannot have children by his servant Agnes and then the words are not actionable And 4. For saying he hath killed them is not actionable and upon this he cited one Snags Case Co. lib. 4. who brought an Action for these words Thou hast killed thy Wife and it appeared by the Declaration that his Wife was alive and therefore it was resolved that the words were not actionable And as to the last exception it was said by Ashley Serjeant on the other side that albeit the Plaintiff hath averred in his Declaration that he lived continently and so in a manner confessed that he had no children this is but for the aggravation of the offence of the Defendant as when an Action is brought for calling one Thiefe he avers that he lived honestly and yet the Action will lye But I confesse if the Plaintiff had averred that he never had any child then it would be like to Snags Case Co. lib. 4. 16. a. and that the Action would not lye But in Anne Davyes Case there she averred that she was a Virgin of good fame and frée from all suspition of incontinency and the Defendant sayd that a Grocer had got her with child Owen Wards Case in Cook Book of Entries hath the same Declaration as this and it was the President thereof But Jermy moved another exception upon these words he hath killed them and doth not say Felony which is not good for he migt kill them in execution of Iustice which is justifiable Trin. 2. Jac. Willers Case in the Court it was adjudged that for these words Thou hast stollen a peece and I will charge thee with Felony an Action lies not because a péece is a word of doubtfull signification And Trin. 20. Jac. It was resolved that these words Agnes Knight is a Witch were not Actinable but it was answered of the other side that upon the whole frame of these words they cannot be intended but to be spoken malitiously and there can be no pretencâ— of lawfull killing of children Doderidge all the words joyned together are actionable but these words only considered he hath four children by his servant Agnes are not Actionable and albeit he doth not alledge it felony yet this is a scandall and good cause of Action Jones agreed and yet he conceived that for saying singly that one hath a Bastard an Action lies not albeit the having of a Bastard be punishable by the Statute of 18. Eliz. cap. 1. But by him he hath killed the King shall be taken in pejori sensu otherwise it is if the words of themselves be indifferent as Pope and this word shall not be the rather taken in pejori sensu having relation to all the sentence for the contrariety of the Declaration it seems to me that the Declaration is good enough but if one saith Thou hast killed J. S. where in truth there never was such a man it is not actionable But here the Averment of the Plaintiff is more generall Ubi re vera he is not guilâ—y or incontinent which is a general allegation but if he had averred ubi re vera he never had any child there peradventure the Action would not lye but here it will Whitlock Justice agreed and he sayd that the first words hath had four children by his Maid Agnes are actionable and for the other matters they agreed whereby Iudgement was given for the Plaintiff The same Term in the same Court THis Term in the Common-place Sargeant Hendon cited this Case to be adjudged 4. Jac. A Copy-holder made a Lease for yeares by License and the Lessee dyed that this Lease shall not be accounted assets in the hands of the Excecutors neither shall it be extended But the Case was denyed by Iustice Hutton and others and that an Ejectione firmae lies of such a Lease But he said that if a Copy-holder makes a Lease for yeares by License of the Lord and dyes without Heire the years not expired the Lord notwithstanding this may enter for the Estate out of which this Lease was derived is determined But Yelverton Iustice was contra because this License shall be taken as a confirmation of the Lord and therefore the Lease shall be good against him and there as I heard it was argued by all that if a Copy-holder makes a Lease for a yeare this is a Lease by the Common-Law and not customary and shall be counted assets in the hands of the Executors of the Lessée The same Term in the Kings Bench. NOta upon evidence to a Iury between Buffield and Byburo the Case appeared to be this upon a Devise with these words I will and devise that A. and B. my Feoffees shall stand seised and be seised to and of Iohn Callis for life the remainder c. And the truth was that he had no Feoffees and the opinion of the whole Court nullo contradicente was that this is a good Devise to John Callis by reason of the intention 38. H. 8. Bro. Devis 48. 15. Eliz. Dyer 323. were urged for the proofe of it and by Doderidge the Case of 15. Eliz. is more strong then our Case is Linyen made a Feoffment to his own use and afterwards devised that his Feoffees should be seised to the use of his Daughter A. who in truth was a Bastard and yet this is a good Devise of the Land by intention for by no possibility they can be seised to his use Mich. 2. Car. Lemasons and Dicksons Case in the Kings Bench. Trin. 2. Car. Roll. 1365. THe Case was this One Parcevall Sherwood was indebted to Susan Clarke who brought an Action of debt by a Bill of Middlesex which is in nature of a Writ of Trespas against him and Sherwood upon a mean Proces was arrested by the Defendant being Bayliff of the Liberty of White-Chappel and being in his custody he suffered him to escape Afterwards Susan Clarke made the Plaintiff her Executor and dyed and then the Plaintiff brought an Action upon the Case against the Defendant upon the said escape and upon issue joyned it was found for the Plaintiff And Calthrop of Councel with the Plaintiff moved that the Action will well lye for the Testator himselfe might have had either an Action of Debt or upon the case upon the sayd Escape and therefore the Executor may have the same remedy and that by the equity of the Statute of 4. E. 3. cap. 7. which gives an Action to Executors pro bonis asportatis in vita Testatoris And by 14. H. 7. 17. this Statute shall be taken by equity and Administrators who are in the same mischiefe shall have the same remedy albeit they
that it was good enough for although it were a joynt command yet the parties commanding having severall titles it shall be taken as severall commands reddendo singula singulis and for the third it is good enough being in a Plea otherwise if it had been in a Writ But for the second Exception the bar is not good enough because incertain so that although upon other Exceptions moved by the Defendant the Replication of the Plaintiff was not good yet the Defendants Bar being ill the Plaintiff shall have Iudgement upon tâ—e Declaration And the Plaintiff had Iudgement accordingly The same Term in the same Court Risley versus Hains IN an Action upon the Case upon an assumpsit the Plaintiffe declared upon the Sale of several parcells of Tobacco to wit for one parcell so much for another parcell so much and so forward and in the Conclusion he saith quae quidem separales summae in toto se attingunt to 55. l. which being computed is lesse then the pariculars and upon non assumpsit it was found for the Plaintiffe and now Andrewes moved in arrest of Judgement for that the particulars and the summing up of them differs and this being in a Declaration which ought to contain truth it is not good and so there appears to be no cause of action 35. H. 8. Dyer 55. And Grices Case in the very point Mich. 17. Jac. in this Court but by Jones and Whitlock Iustices onely present the Declaration is good enough for there is a particular promise for every parcell and the summing up of particulars is only surplusage and officiousness of the Clark therefore the Iudgement was affirmed And nota that Jones said obiter in this Case that upon a contract the Party to whom payment is to be made need not make request and afterwards it was agreed by the whole Court that it should be amended otherwise it had been more The same Term in the same Court A Great multitude of Welsh-men were Indited for the death of a man by an Inquisition taken before the Coroner in the County of Mountgomery in Wales and Littleton of Councel with the Welsh-men took some Exceptions to the Inquisition as 1. That the Coroner cannot take any Inquest unlesse it be super visum corporis and to this purpose he cited Britton 6. Ric. 2. Coron 107. 21. E. 4. 70. 2. Ric. 3. 2. This also is the reason that if a man drown himselfe and cannot be found the Coroner cannot enquire of the death of this man but for the King to have a forfeiture of his Goods an Inquisition ought to be taken before the Iustices of Peace as it was resolved in this Court Trin. 13. Jac. upon which the first exception was that the Inquisition was taken at D. in the time of King James super visum corporis in D. in the time of this King and for this he cited two presidents out of Cookes Booke of Eâ—tryes Another Exception was because the Inquisition was per Sacramentum probor legal hominum Com. predict whereas by the Stat. of 4. E. 1. this inquest ought to be by men of the four Towns next adjoyning and this ought to appear in the Inditement also Hill 10. Jac. Rot. 3. Co. lib. Intr. 354. And day was given to the Attorney General to maintain this Inquisition But afterwards Pasch 3. Car. the Inditement was quashed especially for the first exception The same Term in the same Court King versus Merrick In an Action upon the Case for these words I charge you King with Felony and you Constable inuendo Thomas Legat to apprehend him And a verdict for the Plaintiff It was moved in arrest of Iudgement by Bacon that the words are not actionable The first words are not because they are not an expresse affirmation and for this he cited Mich. 11. Jac. in this Court Powel and Bauds case where an action was brought for these words I have arrested Powel of Felony for stealing sheep of mine and adjudged not actionable Also the Plaintiff did not shew in his Declaration what kinde of felony this was and it may be such a felony for which an Action will not lie for there are divers kinds of felony and a Mayhem is one kind as appears in 40. Ass Pl. 4. 6. H. 7. 1 and in this case it shall be taken in mitiori sensu and it shall not be intended such a felony for which he may be hanged If one charge another with felony because he hath committed a Mayhem it is cleer that an action will not lye And the other words I charge you Constable to apprehend him are not actionable and the words are onely spoken to the Plaintiff Also the words are layd to be spoken in London and it appears that the Constable was of a Town in Norfolk who cannot apprehend any one in London Earle for the Plaintiff It hath been argued that the words are not actionable because felony is a generall word and contains in it selfe a mayhem also But I conceive that in this case felony shall be taken according to the general and common acceptation which is such a Felony for which a man may loose his life and for this he cited Co. lib. 4. 15. b. Yeomans charged Hext for my ground in Allerton Hext seeks my life and if I could find Iohn Silver I do not doubt but within two dayes to arrest him upon suspition of Felony and it was adjudged that for the last words the Action lies because he shall be imprisoned for suspition of felony and felony is there taken according to the common acceptation of the word It hath been objected that there is no expresse affirmation of the Felony but I conceive that there is 39. Eliz. Action was brought for these words I will call him in question for poysoning my Aunt and adjudged that it lyes and Mich. 37. and 38. Eliz. Woodrofe and Vaughans case for these words I did not know Mr. Woodrofe was your Brother I will prove him perjured or else I will bear his charges and adjudged actionable And Hill 44. Eliz. Rot. 351. This man inuendo Iohn Latham hath cut my Wives purse and his Father knowing of it received it of him and the Money and Rings theein and therefore I charge him of flat Felony and resolved that for these words did cut my Wife's purse no action lies for the cutting of ones purse only is not felony unlesse it be taken from the person and to receive one is not Felony but resolved that the last words were actionoble and then it was agreed that if one say that I. S. did see such a one that had committed felony and did suffer him to slip away I charge him of Felony these words are not actionable and Mich. 20. Jac. in this Court that these words beare witnesse I arrest him of felony are actionable and therefore he prayeâ— judgement for the Plaintiff Doderidge Iustice the words are not actionable And Hexts case comes not to this
Harrison Erringtons case 202p Hebborns case 206p I JEne and Chesters case 151p Jenningâ— Maystâ—â—â— case 102b Jorden Ayliffs case 168b Jenkin and Vivians case 201p K. Kettle and Masons Case 50p King and Berys Case 57p Kellies Case 104p Kirton and Hoxtons case 115p The King and Brigs case 150p Kebles case 18â—b Knights case 187b King Merricks case 2o L Lee and Browns case 128p Lewes and Jeofferies case 153p Lemasons and Dicksons case 189p Laurking and Wylds case 126p Leechford and Saunders case 194b Liverel and Rivets case 206b Lathams case 210b M MIchels case 8b Morgans case 52p Morgan and Tadcastles case 55p Montague and Jeofferies case 108p Mounson and Wests case 110p May and Kets case 129p Middletons case 131p May and Samuels case 134p Mingies case 135p Sir Arthur Mannarings case 145p Morley and Sir Richard Molineuxs case 1â—5p Millen and Fandries case 161p March and Fandries case 161p March and Newmans case 163p Mayor of Maidstons case 180p Mills and Parsons case 199b O OAks and the Lord Sturtonrs case 65b Overton and Sydalls case 120p Old and Estgreens case 160b Owen Wards case 187b P PIgots case 94p Porramor and Veralds case 101p Pollard and Lutterells case 108p Sir John Pools case 128p Powels case 139p Pack and Metholds case 160p Probe and Maynes case 192b Petit and Robinsons case 203p Ployden and Symes case 205p R ROper and Ropers case 106b Robinson Walkers case 127p Rawlinson and Greens case 127p Rones case 133p Richardson and Cabells case 142p Sir George Reynalds case 165p Ryman and Bickleys case 129p Reynor and Hallets case 187p Rochester and Rickhouse case 203p Rosse and Harvies case 206b Risley and Hains case 209p S STocks case 37p Smiths case 53p Southwell and Wards case 91p Sawyer and Hardies case 99p Stainings case 102p Scot and Mainys case 109p Strowd and Wyllis case 114p Southern and Howes case 143p Silvesters case 148p Stone and Withipoles case 152p Sary and Pigots case 166p Sharp and Rasts case 181p Snaggs case 187b Sherry and Richardsons case 15p Smithers case 169b Scheverel Dales case 193p Sanders Meritors case 200p Staple Kings case 206b Savile Wortleys case 207p Sparman Sherwoods case 222p T THompson Traffords case 8p Taunton Raries case 106p Tailours case 133p Thurman Coopers case 188p Talbot and Sir Walters Lacens case 146p Turner and Dennis case 169 V VAughans case 134p W WOod and Downings case 10p Webly and Skinners case 85p Wood and Matthews case 102p Westcot and Cottons case 130p Wrenhams case 135p Wootton and Byes case 136p Wards case 144p Webb and Paternosters case 151p Westermans case 151p Wales case 160p Welden and Bâ—sies case  Wicks case 186b Williams and Vaughans case 186b Willers case 197b Whelhorseys case 208p Woodroof and Vaughans case 210q CASES Reported by S R. JOHN POPHAM Knight Lord chief Justice of ENGLAND In the time of Queen ELIZABETH and written with his own hand in French and now faithfully done into English to which are added some remarkable CASES Reported by other Learned and Judicious Pens since his death Fenner versus Fisher Mich. 34. and 35. Eliz. Reginae in the Kings Bench IN Trespasse brought by Iustice Fenner against Andrew Fisher for a Trespasse done in the Parsonage house of Cravfords in the County of Kent 30. Maij 34. of the Queen the Defendant pleaded that one 〈…〉 was seised of the same Messuage in his Demesne as of see and being so seised the 〈…〉 day of in the same year did demise it to the Defendant for two years from such a Feast then last past by virtue of which he entred and was possessed untill the Plaintiff claiming by colour of a Deed made of the sayd Wrighâ— where nothing passed by the Deed upon which the Defendant entred c. The Plaintiff replies by protestation that the sayd Wrighâ— was not seised as the Defendant hath alledged And for Plea saith that the sayd Wright did not let it to the Defendant as the Defendant hath alledged upon which being at Issue and found for the Plaintif Ackinson moved that Iudgment ought not to be given for the plaintiff because that he hath not made any Title by his Replication for by 9 E. 4. 49. In Trespasse the Defendant pleads in Bar and gives colour to the Plaintiff it is taken for a Rule that the Plaintiff ought to make Title Cook answered that he needs not to make Title in this case but that it sufficeth to traverse the Bar without making a Title and sayd that in 22 E. 4. Fitzh Trespass It is adjudged that in Trespasse the Plaintiff may traverse the Bar without making Title in his Replication and here in as much as it is acknowledged by the Defendant that Wright did demise it to the Plaintiff and that this is a Lease ta will at the least not defeated by his own shewing but by the Lease made to Defendant this being traversed and found against the Defendant The Plaintiff by the acknowledgment of the Defendant himself hath a good Title against him to enter into the Land and by it the Defendant by his Re-entry is become Trespassâ—â— to the Plaintiff and he sayd that in 2 E. 4. fol. In Trespasse where the Defendant pleads that he let the Land to the Plaintiff for another mans life and that he for whose life it was was dead upon which he entred and it is adjudged that it sufficeth for the Plaintiff to maintain that Cestuy vie was yet living without making any other Title And yet these reasons Cleoch and Gawdy held the Replication good to which Popham sayd that we as Iustices ought not to adjudge for the Plaintif where a good formall bar is pleaded as here it is But wherby the Record it self which is before us we cannot see that the Plaintiff hath good cause of Action And therefore I agree that in Trespasse in some cases the Plaintiff may traverse the Bar or part of it without making any other Title then that which is acknowledged to the Plaintiff by the Bar but this alwaies ought to be where a Title is acknowledged to the Plaintiff by the Bar and by another means destroy by the same Bar for there it sufficeth the Plaintiff to traverse that part of the Bar which goeth to the destruction of the Title of the Plaintiff comprised in the Bar without making any other Title but if hee will traverse any other part of the Bar he cannot do it without making an especiall Title to himself in his Replication where by the Bar the first possession appeareth to be in the Defendant because that although the Traverse there be found for the Plaintiff yet notwithstanding by the Record in such a Case the first Possessions will yet appear to be in the Defendant which sufficeth to maintain his Regresse upon the Plaintiff and therefore the Court hath no matter before them in such a Case to adjudge for the Plaintiff unlesse in cases
where the Plaintiff shews a speciall Title under the Possession of the Defendant As for example In trespasse for breaking of his Close the Defendant pleads that J. G. was seised of it in his Demesne as of fee and enfeoffed J. K. by virtue of which he was seised accordingly and so being seised enfeoffed the Defendant of it by which he was seised untill the Plaintiff claiming by calour of a Deed of Feoffment made by the sayd J. G. long before that he enfeoffed J. K. where nothing passed by the sayd Feoffment entred upon which the Defendant did re-enter here the Plaintiff may well traverse the Feoffment supposed to be made by the sayd J. G. to the sayd I. K. without making Title because that this Feoffment only destroies the Estate at will made by the sayd I. G. to the Plaintiff which being destroyed he cannot enter upon the Defendant albeit the Defendant cometh to the Land by Disseisin and not by the Feoffment of the sayd I. K. for the first Possession of the Defendant is a good Title in Trespasse against the Plaintiff if he cannot shew or maintain a Title Paramounâ— But the Feoffment of the sayd I. G. being traversed and found for him he hath by the acknowledgment of the Defendant himself a good Title against him by reason of the first Estate at will acknowledged by the Defendant to be to the Plaintiff and now not defeated But in the same case he cannot traverse the Feoffment supposed to be made to the sayd I. K. to the Defendant without an especiall Title made to himself for albeit that I. K. did not enfeoff the Defendant but that the Defendant disseised him or that he cometh to the Land by another means yet he hath a good Title against the Plaintiff by his first Possession not destroyed by any Title Paramount by any matter which appeareth by the Record upon which the Court is to adjudge and with this accord the opinion of 31 4. 1. That the materiall matter of the Bar ought alwaies to be traversed or other wise that which upon the pleading is become to be materiall and that which the Plaintiff traversed here to wit the Lease made by Wright to the Defendant is the materiall point of the Bar which destroyeth the Title Paramount acknowledged to the Plaintiff by the colour given in the Bar which is good without another Title made So note well the diversity where in pleading in Trespasse the first Possession is acknowledged in the Plaintiff by the Bar and where it appeareth by the pleading to be in the Defendant and where and by what matter the first Possession acknowledged in the Plaintiff by the Bar is avoided by the same Bar And upon this Iudgment was given for the Plaintiff as appeareth in 34. and 35. Eliz. Rol. Earl of Bedford versus Eliz. Anne Russell Mich. 34. and 35. Eliz. 2. IN tho Court of Wards the Case was thus between the now Earl of Bedford In the Court of Wards and Elizabeth and Anne the Daughters and Heirs of John late Lord Russell which was put ten times to all the Iustices to be resolved Francis late Earl of Bedford was seised of the Mannor of Baruake Chaldon c. in Commitatu Dorset in his Demesne as of see and so seised the fourth year of Queen Eliz. of it enfeoffed the Lord S. John of Bletsoe and others in see to the use of himself for forty years from the date of the sayd Deed and after to the use of the sayd John then his second Son and the Heirs Males of his body and for default of such Issue then to the use of the right Heirs of the sayd Earl the Feoffor for ever Afterwards Edward Lord Russell Son and Heir apparant to the sayd Earl dyed without Issue and after the sayd John Lord Russell dyed without Issue Male having Issue the sayd two Daughters afterwards to wit 27 Eliz. the sayd Francis Earl of Bedford by Indenture made between him and the Earl of Cumberland and others in consideration of the advancement of the Heirs Males of the body of the sayd Earl which by course of descent should or might succeed the sayd Earl in the name and dignity of the Earldome of Bedford and for the better establishment of his Lordships Mannors and Hereditaments in the name and blood of the sayd Earl covenanted and grantes with the sayd Covenantees that he and his Heirs hereafter shall stand seised of the sayd Mannors amongst others to the use of himself for life without impeachment of Waste and after his decease to the use of Francis the Lord Russell and the Heirs Males of his body for default of such Issue to the use of Sir William Russell Knight his youngest Son and the Heirs Males of his body with diverse Remainders over after which the sayd Francis Lord Russell tyed having Issue Edward the now Earl of Bedford and after this the sayd Francâ—s late Earl of Bedford dyed also and after the Daughters of the sayd John Lord Russell or the now Earl of Bedford shall have these Mannors of Barunke c. was the question and upon this it was argued by Cook Sollinton and others for the Daughters that an use at Common-law was but a confidence put in some to the benefit and behoof of others and that Conscience was to give remedy but for those for whose availe the confidence was and that was in this Case for the sayd Daughters which were the right Heirs to the sayd Francis late Earl of Bedford upon the first conveyance made 41 Eliz. for the confidence that he put in the Feoffees as to the profits that he himself was to have was but for the forty years and how can any other say that he shall have any other Estate when he himself saith that he will have it but for forty years and therefore in this case his right Heir shall take as a Purchasor by the intent of the Feoffor which hath power to make a disposition of the use at his pleasure and his pleasure as appeareth was to have it so and it is not as if the use had been limitted to be to himself for life with such a Remainder over in which Case the use of the Fee by the operation of Law ought to execuse in himself for the Free-hold which was in him before As where Land is given to one for life the Remainder to his right Heirs he hath a Fee-simple executed but here he shall have but an Estate for forty years precedent and that the Fee-simple cannot be executed by such a limitation made to the right Heirs but in case of an Estate for years only precedent such a limitation to his right Heirs afterwards is not good but in case of an use it is otherwise for it may remain to be executed to be an use in Esse where the right Heir shall be and therefore not to be resembled to an Estate made in Possession And an Vse is alwaies to be
Issue a Son which selleth this Remainder and afterwards I. S. dyed this Son being his Heir notwithstanding his Sale he shall have this Remainder not his Grantee because it was not in him at the time of his Grant but by a matter which cometh Ex post facto to wit the death of his Father and afterwards Iudgment was given in the first case that the Grantee shal have the term granted to him by the Husband and that the Wife shall not have the term during this Leese Hunt Versus Gateler Mich. 34. and 35 Eliz. in Commun Banco IN a Replevin between Hunt Plaintiff and Gateler Avowant in the Common Pleas which was adjorned for difficulty into the Exchequer Chamber the Case was thus Tenant in tail Remainder in Fee he in Remainder in Vide this case Cook lib. 1. 61. by the name of Capeâ—s case Fee grants a Rent-charge in Fee out of the same Land to begin after the Estate tail determined Tenant in Tail suffer a common Recovery with a Voucher over to the use of the sayd Hunt in Fee and dyed without Issue inheritable to the intail and whether Hunt shall now hold the Land charged with the Rent was the question and after that it had long depended and was many times argued in the Common Pleas and Exchequer Chamber at Hertford Term it was at last resolved by all the Iustices and Barons unanimously that the sayd Rent charge wss gone by the Recovery although the Estate tail was expired because that he which is in is in under this Intail And therefore Popham sayd suppose thâ—t the Tenant in tail himself before the Recovery had granted a Rent charge out of the same Land or had made a Lease for yeers or had acknowledged a Statute all those had been good and to be executed against him which cometh in under the Recovery notwithstanding that the Estate tayl had been determined for want of an heir inheritable to the intail for he which recovereth cannot lay that he against whom he recovered had but an Estate in tail and if his Lease remain yet good as all agreed it did how can the Lease a Rent granted by him in the Remainder be good also for the one and the other cannot stand together and therefore all the Leases Charges or Statutes acknowledged or made by him in the Remainder are gon and avoided by the Recovery had against Tenant in tail To which opinion all the other agreed and Popham sayd further That he in the Remainder upon an Estate tail cannot by any means plead to defend his Remainder unless the Tenant will as by vouching of him and therefore shall be bound by the Act of Tenant in Tail where the Estate it self is bound as here it is by the Voucher and then they which come in by him in the Remainder by way of Lease Charge or Statute which are not so much favoured in Law as Tenant in tail himself be in better condition then he in the Remainder himself is for he in the Remainder upon an Estate tail cannot put more into the Mouth of the Lessee or Grantee to defend their Estates then he himself could have to defend his Remainder and this is the reason that such a Termer or Grantee shall never falsifie the Recovery had against Tenant in tail as the Grantee or Termer shall do which cometh in under Tenant in tail against whom the Recovery was had for there as the Tenant in tail may plead to defend his Possession and Estate so may his Termer or Grantee of a Rentcharge do for by the Demise or Grant made the Tenant in tail hath put all the Pleas into their mouthes for their Interests which he himself had to defend his Right and Possession which they may plead for the time to defend their Possessions and Rights as well as the Tenant in tail himself may do and this is the reason that such may falsifie Recoveries against their Lessors or Grantors if they be not had upon the meer right Paramount which he that cometh in by such a Remainder as before cannot do for such a one in Remainder cannot be received to defend his Right but his mouth is meerly foreclosed to do it and by the same reason are all those which come in by such men foreclosed to defend their Interests or Estates and upon this Audgement was given in the same Tearm in the common Pleas. Gibbons versus Maltyard and Martin IN an Ejectione firmae brought in the Kings Bench by John Gibbons Vide this case in Cook lib. 8. 130 Thetford Scholies case Plaintiff upon a Demise made by Edward Peacock the Son of Lands in Croxton in the County of Norfolk against Thomas Maltyard and John Martin upon a speciall verdict the case appeared to be thus to wit that Sir Richard Fulmerston Knight was seised of the sayd Lands amongst others holden in soccage in his Demesne as of Fee and being so seised by his last Will in Writing made 9 Eliz. Ordained that a Devise shall be made by his Executors that a Preacher shall be found for ever to preach the Word of God in the Church of Saint Maries in Thetford four times in the year and to have for his Labour ten shillings for every Sermon And further he devised to his Executors and their heirs certaine Lands and Tenements in Thetford aforesaid to this intent and upon this condition that they or the Survivor of them within seven years after his decease should procure of the Queens Highness to erect a free Grammar School in Thetford for ever to be had and kept in a house by them to be erected upon part of the sayd Land that they shal assure three of the said ienements for the house and Chamber of the Schoolmaster and Vsher and their Successors for ever and for the other tonement that they shall make an assurance of it for the Habitation of font poor people two men and two women for ever And for the better maintenance of the sayd Preacher Schoolmaster Vsher and Poore people he devised amongst others his sayd tenements in Croxton to his Executors for ten years for the performance of his Will and after this he devised them to Sir Edward Cleer and Frances his Wife the Daughter and Heir of the sayd Sir Richard and to the Heirs of the sayd Sir Edward upon Condition that if the sayd Sir Edward his Heires or Assignes before the end of the sayd ten years shall assure Lands or Tenements in possession to the value of five and thirty pounds a year to the sayd Executors or the Survivor of them their Heirs and Assignes or to such persons their heirs or Successors as his sayd Executors or the Survivor of them shall name or assigne for and towards the maintenance of the sayd Preacher Schoolmaster and Vsher in the sayd School house c. and for the releif of the sayd poor people in the one of the sayd houses according to the Ordinance as he
albeit he died before the day of payment because this was a summ in grosse limited to be paid to the said Thomas at a certain time But if it shall be taken for a Condition in William he thinks cleerly that the said William ought to have given notice to the Executrix of the said Thomas before he had made his first entry into the Land of the Ten. when he intended to make his entry so that the Executrix might be there at the same time to have made demand of the money which ought to have been done or otherwise there cannot be a refusall in the said William and without his refusall or other default in him the Condition cannot be broken if it had such a relation as to make the payment as George ought to do it And so the Executor of Thomas cannot have notice when William will make his first entry into the Land if he do not give him notice of it and therfore if it shall be a Condition it had been broken on the part of William for want of giving notice to the Executor of the time of his first entry wherby the Executor might have notice of the time to make his demand because without a demand refusall cannot be and the Executor is excused to make demand when he had no notice of the time and therfore the default of William in not giving notice of it shall be taken against him as strongly as if he had made a refusall to pay upon demand for if notice had been given to the Executor and he had demanded the money and William had said nothing to it but omitted to pay it yet this shall be a refusall in Law But of this nothing appeareth in the Verdict whether the Executor had notice given to him or not nor nothing mentioned in the Verdict whether any demand or refusall was made of the money or not and therfore the Verdict as to these points is incertain to judge upon whether it shall be taken to be a Condition in William But it seems as the Verdict is that Iudgment ought to be given against the Plaintiff for the conclusion of the Verdict is upon the entry of the Defendant whether this be lawfull or not and not upon the expulsion or whether upon the other Moyetie his entry was lawfull in right of the said William because they were Tenants in Common 3. IN Trespasse of Assault Battery and Imprisonment made such a day at in the Countie of Cornwall brought by against The Defendant saith that he was Constable of the same Town and that the Plaintiff the said day year and place brought an Infant not above the age of ten daies in his armes and left him upon the ground to the great disturuance of the people there being and that he commanded the Plaintiff to take up the said Infant and to carry it from them with him which the Plaintiff refused to do for which cause he quietly laid his hands upon the Plaintiff and committed him to the Stocks in the same Town where he continued for such a time untill he agreed to take up the Infant again which is the same Assault Battery and Imprisonment of which the Plaintiff complains upon which the Plaintiff demurred Fennor was of opinion that that which the Constable did was lawfull and that it is hard that an Officer shall be so drawn in question for it for this shall be an utter discouragement to good Officers to execute their Offices as they ought to do Popham A Constable is one of the most ancient Officers in the Realm for the conservation of the Peace and by his Office he is a Conservator of the Peace and if he sees any breaking of the Peace he may take and imprisen him untill he find surety by obligation to keep the Peace And if a man in fury be purposed to kill maime or beat another the Constable seeing it may arrest and imprison him untill his rage be passed for the conservation of the Peace And if a man layes an Infant which cannot help it self upon a Dunghill or openly in the field so that the Beasts or Fouls may destroy it the Constable seeing it may commit the party so doing to Prison for what greater breach of the Peace can there be then to put such an Infant by such means in danger of its life And what diversity is there between this case and the case in question for no body was bound by the Law to take up the Infant but he which brought it thither and by such means the Infant might perish the default therof was in the Plaintiff and therfore the Action will not lye And therupon it was agreed that the Plaintiff take nothing by his Writ Hayes versus Allen. 4. TErm Pasch 33 Eliz. Rot. 1308. A Cui in vita was brought in the Common Pleas by Ralph Hayes against William Allen of a Messuage with the Appurtenances in St. Dunstans in the East London in which it was supposed that the said Wil. had no entry but after the demise which John Bradley late husband to Anne Bradley Aunt of the said Ralph whose heir the said Ral was made to Tho. Allen and Jo. Allen and counts accordingly shews how Cosin and Heir to wit Son of Wil. brother of the said Anne Wil. Allen traverse the Demise made to the said Tho. and Jo. Allen and at Nisi prius it was found that the said Jo. Bradley and Anne his wife was seised in their demesn as of fee in right of the said Ann of a Messuage in S. Dunstans aforesaid containing from the North to the South 18 foot and from East to West 12 foot and a half and being so seised during their Marriage by their Deed sealed with their Seals enfeoffed the said Tho. Allen and Jo. Allen therof to hold to them and their heirs to the use of the said Jo. Bradley and Anne his wife for their lives and afterwards to the use of the Church-wardens of S. Dunstans Lond. and of their successors for ever to the use of the poor of the same place and that Livery was made accordingly and that the said Deed was inrolled in the Chancery at Westm and that afterwards the said Anne died and that Jo. Bradley survived her died and that the right of the said Mess descended to the said Ra. as cosin and heir of the said A. And that Sir W. Allen K. was seised of a peece of land in S. Dunst aforesaid containing 6 foot 4 inches contigious and adjacent to the said Mess late the said Jo. Bradleys and A. his wife in his demesn as of fee And that the said Sir Wil. after the said feoffment and before this Writ purchased utterly drew away the said Messuage late the said John Bradleys and Ann his wife and drected a new house upon the Land of the said Sir William and upon part of the Land upon which the other house stood containing from the North to the South thirteen foot from the East
Law or meerly of another nature then the Rent it self with which it is conjoyned by the word or then it is erroneous for albeit a common Recovery be now a common assurance of Land past by the assent of parties and therfore hath another conservation then that which passeth by pretence of Title yet we are not to omit grosse absurdities in such common Recoveries as to demand an acre of Land or Wood in the Mannor of Sale or Dale or black acre or white acre these are not good in common Recoveries because there is no certainty in the demand which of them the party is to recover which kind of absurdity is not to be admitted in these Recoveries for this is but a meer ignorance in the Law and the Ministers of it And to this Gawdy and the other Justices agreed but they sayd that a Pension issuing and a Rent shall be taken for all one for if a man grant a Pension of 20 s. a year issuing out of the Mannor of D. or of the Rectory of S these are Rents issuing out of them and if the demand had been of an annuall Rent or Annuity of 20 s. a year issuing out of the Rectory this had been good To which Popham agreed and yet sayd if it had been an annuall Rent of 20 s. c. or of an Annuity of 20 s. it had nof been good because that the word issuing is not referred to the Annuity but to the Rent only and therfore are meerly generall and not as the same but if the demand were of an annuity rent or payment of 20 s. issuing out of a Rectory it is good for this is but one and the same Then it was alledged that notwithstanding that which appears to the Court it cannot be taken that this was a common Recovery for upon the assignment of the Error it is not averred that it was a common Recovery to which Popham said that common Recoveries are such common Assurances to all persons that are well known to all and especially to us that they need not be averred for they are known by certain Marks to wit by the voluntary entry into the Warranty the common Voucher and the like And at last they all agreed that the Iudgment shall be affirmed 2. In Wast by Thomas Haydock against Richard Warnford the case was this One Michael Dennis was seised in his Demesne as of Fee of the third part of a Messuage and of certain Lands in Bury Blunsden in the County of Wilts and being so seised the last of April 9 â—liz demised them to Susan Warnford for 41. years from the Feast of S. Michael the Arch-angel then next ensuing who assigned this over to Richard Warnford after which the said Michael Dennis by bargain and sale enrolled according to the Statute conveyed the Reversion to John Simborn Esquire and his Heirs the said Iohn being then seised of another third part therof in his Demesne as of Fee after which to wit the first day of Iune 17 Eliz. the said Iohn Simborn demised the said third part which was his before his said purchase to the said Richard Warnford for 21 years then next ensuing and afterwards the said Iohn Simborn died seised of the Reversion of the said two parts and this descended to Barnaby Simborn his Son and next Heir who the 20 of Iune 28 Eliz. by bargain and sale enrolled according to the Statute conveyed be Reversion of the said two parts to the said Thomas Haydock and his Heirs after which the said Richard Warnford committed Wast in the said house wherupon the said Thomas Haydock brought an action of Wast against him according to the said two severall Leases and assigned the Wast in suffering the Hall of the price of 20 l. a Kitchin of the price of 20 l. and so of other things to be uncovered wherby the great Timber of them became rotten and so became ruinous to the disinherison of the Plaintiff and upon a Nihil dicit a Writ was awarded to enquire of Damages in which it was comprised that the Sheriff shall go to the place wasted and there enquire of the said Damages who returned an inquisition taken therof at Bury Blunsden without making mention that he went to the place wasted and that it was taken there wherupon Iudgment was given in the common Bench that the said Plaintiff shall recover his Seisin against the Defendant of the said places wasted with their Appurtenances Per visum Iurator Inquisitionis predict damna sua occasione vastâ— in eisdem locis in triplo secunâ—uÌ„ formam statuti c. And upon this a Writ of Error was brought in the Kings Bench and there by all the Iustices it was agreed that it was but Surplusage to comprehend in the Writ of enquiry of Damages that the Sheriff shall go to the place wasted and there enquire of the Damages in as much as by the not denying therof the Wast is acknowledged and therfore he need not go to the place wasted But where a Writ is awarded to enquire of the Wast upon default made at the grand Distresse there by the Statute of West 2. cap. 24. the Sheriff ought to go in person to the place Wasted and enquire of the Wast done and therfore in that case it is needfull to have the clause in it that the Sheriff shall go to the place wasted and there enquire of it for by the view the Wast may be the better known to them but where the Wast is acknowledged as here that clause need not and albeit it be comprehended in the Writ yet the Sheriff is not therby bound to go to the place wasted and to enquire there but he may do it at any place within his Bayliwick where he will and therfore it is no error in this point And they agreed also that the Wast is well assigned in the entire Hall c. although the Action were brought but upon the Demises of two third parts of it and it cannot be done in these parts but that it is done in the whole and also it cannot be done in the whole but that it is also done in the three parts but yet the doing therof is not to the disinheritance of the Plaintiff but in these two third parts and therfore no error in this manner of assigning of the Wast And they also agreed that the Action is well brought upon these severall Demises because neither the interest of the Term nor of the Inheritance was severed nor divided to severall persons at the time of the doing of the Wast but the two Terms in the one to wit in Warnford and the Inheritance of these immediatly in the other to wit in Haydock And by Popham also the thing in which the Wast is assigned is one and the same thing and not diverse to wit a Messuage and therfore by Brudnell and Pollard 14 H. 8. 10. if severall Demises are made of one and the same Messuage by one and the same person as
for the case of Sir Rob. Chester 4 Eliz. there is great diversity between that this case for it is ordained by the Act that upon the default of paym which is not limited there to be made at the receit the office shal be forfeited not that the estate in the office shall cease And of a thing forfeited it is at the election of him who is to take advantage of the forfeiture whether he will take it or not and till the advantage taken therof the party still remains an Officer And therfore if the Queen make a Lease for years and the Termer makes a Feoffment in Fee the Term by this is extinct as was agreed upon an Evidence in the Exchequer 28 El. in the case of Drayton Basset and before that in the same case in the Kings Bench and yet no reversion is drawn therby out of the Queen Suppose then that the Queen before any Office found therof grant the Land over in Fee shall not the Patentee take advantage therof by extinguishing the Term It is cleer that he shall and albeit a Termer holdeth over his Term yet the Patentee of the Queen and also the Bargainee of a common person after the Inrolement of the Bargain shall take advantage of this determination of the Term. And for the not reciting of Throgmortons Lease in the Letters Patents made to Finch and Audeley it is to no purpose to speak to it because the Estate was finished before the Grant And further because there was a Non obstante in the Patent that it shall be effectuall notwithstanding any not recitall of any Lease being of Record or not being of Record mis-recitall c. which was by all at the Bonch admitted to be good and not contradicted by any And for the Office found after the Grant made I did not speak to it because it is of no purpose to help the Patentee but yet shall serve the Queen for the mean profits as hath been said See more of this case Trin. 36 Eliz. pl. 2. Trinity Term 35 Eliz. Hughes versus Robotham 1. MEredith Hughes brought an Action upon the Case against William Robotham Executor to Ja. Robotham for that the Plaintiff in the life time of the sayd Testator to wit the 12th of Apâ—il 28 Eliz at London in such a Parish and Ward was possessed of a Messuage with the Appurtenances in the same Parish and Ward for divers years then to come And whereas also the said Testator was then possessed of the reversion therof after divers years then also to come and so possessed the said Testator the said 12th day of April at London in the Parish and Ward aforesaid in consideration that the Plaintiff at the instance and request of the Testator in his life time would surrender all his Estate and Term of years which he then had to come in the said Messuage with the Appurtenances and procure one Thomas Thornell to give to the said Testator a 100. marks for a Lease therof to be made by the said Testator to the said Thornell he assumed and promised to pay to the Plaintiff 30 l. of the said 100. marks when he should be therunto required by the Plaintiff And the Plaintiff alledged in facto that he at the instance and request of the said Testator in his life time afterwards to wit the 20th day of April 28 Eliz. at London in the Parish and Ward aforesaid surrendred to the said Testator all the Estate and term of years which he then had to come in the said Messuage c. and that he the same 20th day of April in the same Parish and Ward procured the sayd Thornell to give to the said Testator 100. marks for a Lease of the said Messuage c. by the Testator to the said Thornell then and there made for 19 years from the Feast of the Annunciation of our Lady then last past and that yet the said Testator in his life time nor the said Defendant after his death have not paid to him the said 30 l. albeit the said Testator in his life time to wit the 24. day of April aforesaid at London in the Parish and Ward aforesaid as therunto required by the said Plaintiff and albeit the Defendant after the death of the said Testator to wit the 10th day of April 32 Eliz. in the Parish and Ward aforesaid was also therunto required by the said Plaintiff And albeit there were sufficient Goods and Chattels of the said Testator at the time of his death to pay as well the said 30 l. as all other Debts of the said Testator and also to discharge the Funerals of the said Testator which Goods and Chattels came to the said hand of the said Defendant c. And after Non assumpsit pleaded and a Verdict for the Plaintiff exception was taken in arrest of Iudgment that the Declaration was not good 1. Because it is that the Plaintiff the 20th day of April 28 Eliz. surrendred all the Estate and term which he had then to come and this for any thing shewn may be another Term then he had the 12th day before for it is not said and so being possessed the 20th day he surrendred but generally as before And further the consideration was that he ought to surrender all the Term which he had the 12th day of April which cannot be made the 20th day for in the mean time part of the Term is incurred and therfore the purpose was that the surrender should have been made immediatly as soon as might be so as by the delay therof the â—â—d Robotham should not loose any part of the Term to come And it was further alledged that a term for years cannot be surrendred to another Termer for years Gawdy The consideration is that the Plaintiff at the request of the Testator in his life time should surrender so that it is not to be done untill he be required by the Testator and not instantly at his perill without request precedent and here it is alledged that the Plaintiff at the request of the said Testator the 20th day of April surrendred which is well done and according to the agreement and albeit it had been more formall to have said that the said Plaintiff so being possessed afterwards to wit the 20th day of April surrendres c. yet it shall not be intended that he had any other term then that which he had before if it be not shewn on the other side in his Bar and especially here where the Action is not grounded upon the Term but upon the Assumpsit and the consideration is nothing but an inducement to the Assumption which is not so formall to be made as if the Action had been grounded upon the Term it self And therfore in an Action upon the case upon an Assumpsit it sufficeth to say that wheras the Defendant was indebted to the Plaintiff in divers summs of money amounting in all to a 100 l. the Defendant assumed to pay him the 100
l. at such a day without saying how or in what manner these Debts accrued or when because the Action is nor meerly founded upon the Debt but upon the promise and the Debts are but inducements to it But if it were to recover the Debts themselves in an Action of Debt there ought to be made a certainty therof to wit when and how it comes And further here in as much as the Assumpsit is found for the Plaintiff it shall be implyed that the consideration was duly performed for without due proof of the consideration the Plaintiff hath failed of his assumption and therfore also it shall be now taken that the Testator hath such a term of years in reversion to which the term for years in possession may be surrendred for he said that he who hath ten years in possession may well surrender to him who hath more years as twenty in reversion for the lesser may surrender to the greater term To all which Popham and Fennor agreed And Popham said further although it shall be taken most strongly against Hughes to wit that Robotham had a lesser term in the reversion then Hughes had in the possession yet the surrender shall be good for in Law it is greater and more beneficiall for him to have a lesser term to be a term in possession then to have it to be in reversion â—â—nd by him if a Lessee for twenty years make a Lease for ten years then he wâ—ich makes the Lease for ten years hath a reversion upon these ten years so that if Rent be reserved upon it he may distrain for it and have Fealty of the Termor And if he grant the Reversion over for ten years with attornment of the Termor in possession the Grantee hath the Reversion and shall have the Rent for the time and yet the Remainder for years remains alwaies to the Grantor and therfore before the Reversion granted ever the Termor for ten years in possession might have surrendred to his Lessor and therby the said Lessor shall have so many of the said years which were then to come of his former term of twenty years And after the Reversion granted he which hath the ten years may surrender to the Grantee of ten years in Reversion and there he shall have so many years in possession which were to come of his Reversion Quod nota bene And if he had had a lesser term in the Reversiâ—n then the Lessâ—r himself had in the Possession it shall go to the benefit of the first Termor for twenty years who was his Grantor for the Term in possession is quite gone and drowned in the Reversion to the benefit of those who have the Râ—version therupon having regard to their Estate in the Reversion and not otherwise to all which Fennor agreed wherupon Gawdy gave the rule that Iudgment shall be entred for the Plaintiff But Popham said that if the consideration for the surrender had not been sufficiently alledged that the Plaintiff shâ—uld not be helped by the other consideration of 100. marks given by Thornel for if such an Assumption as this is be founded upon two more considerations and such which by possibility may be performed then the party hath failed of his Suit As if a man in consideration of 5 s. paid and of other 5 s. to be paid at a day to come assume to do a thing or to pay money if the one 5 s. be not paid or if it be not averred that the other 5 s. was paid at the day limited for the payment of it the party hath failed in his assumption in the one case and the declaration is insufficient in the other case for he hath made a departure from his consideration But if one of the considerations be impossible or against Law there the other considerations which are possible or stand with the Law suffice if they he well alledged And he said that the Executor shall be charged with the contract of the Testator by common course of the Court which stands upon reason for if an Action of Debt upon a bare contract be brought against an Executor if he do not demur upon it but plead to the Paâ—s that he owes him nothing and it is found against him he shall be theâ— by charged of the Goods of the dead and the cause why he may be helped by demurring upon the declaration in that case is becâ—use the Testator might have waged his Law in that case of debt which the Executor could not do of other contracts and therfore shall not be charged with it by such an act if he will help himself by demurrer but in â—he assumption of his Testator he could not have waged his Law and it is founded upon the death of the Testator to wit his debt with which the Executor by a mean may be charged as before and therfore the assumption in such a câ—se maintâ—inable against the Executor But if the Testator upon good consideration assume to make assurance of Land or to do any other such collaterall thing which doth not sound in a duty of a thing payable there the Executor shâ—ll never be charged with such an assumption to render recompence for it And to this agreed all the Iustices â—â— the common Bench and Barons of the Exchequer And such an assuâ—â—â—ion hath not been allowed in the Kings Bench but of late time and thâ—â— but 〈…〉 or two cases But in the other case it hath been common and of 〈…〉 and therfore now too late to be drawn in question and if it should â—â— it may be maintained with good reason in this case of a duty of â—â—ing payable in as much as the Testator cannot wage his Law in the Action but in the other case there is no reason nor course of the Court to maintaiâ— it But the Iudges in the Exchequer Chamber reversed all these Iudments in both cases 2. Nota that this Term was adjourned to Octob. Trin. and because the Writ was that Adjournment shall be made in Octob. Trin. of all cases untill Tres Trinitat the Adjournment was made in every of the Courts of Kings Bench Common Bench and the Exchequer the very first day of Octob. Trin. then it was holden by the Iustices that the Adjournment ought not to have been made untill the sitting of the Court the fourth day from Octabis And because that the Writs were that at the said Tres Tr. the Term shall be holden therafter as if no Adjournment had been the Iustices held that they ought to sit the first day of the said Tres Trin. and so from thence every day untill the end of the Term and for all causes as if no adjournment had been and so they did accordingly saving by assent some of the Iustices did not come thither by reason of their far distance from London at the end of the Term upon the last Adjournment But they held that if it had not been for the especiall words in the Writ which were
and paid duly the said Annuity and then he surrendred his Estate in the said Scite to the said Dr. Drewry and after this did not pay the Annuity over and yet continued the possession of the said Scite And by all the Iustices the Defendant notwithstanding the Surrender made to the Obligee himself ought to have continued the payment of the Annuity to the said Dorothy for albeit the Term be drowned and merged in the Reversion and so hath no continuance as to him in the Reversion yet as to any thing heretofore done by the Defendant who was the Termor in Iudgment of Law it is to be said to have continuance As if he had granted a Rent-charge out of it to have continuance during the said Term although he surrender his Term to him in the Reversion yet the charge continues and as to it the Reversion shall be said to be in the Termor and albeit the Obligee himself shall not take advantage of his own or to have the advantage of the forfeiture of an Obligation there where his own act is the cause of his breach And if it had been that the said Dorothy during the said Term shall have the use of a Chamber within the Scite without the interruption of him or his Assigns there if after the Surrender the said Dorothy Drewry had interrupted him of the use of the said Chamber the forfeiture of the Obligation shall not be taken against the Defendant for it But here the Condition is of a collaterall thing to be done to wit the payment of the Annuity to a stranger with which the Land is not bound and therfore the breach comes meerly in default of the Obligor and of the Obligee in no part to wit and therfore the Obligation here is forfeited And by Popham the case here is more cleer upon consideration of the words of the Condition for the words are I the Defendant shall or may enjoy c. and this word may enjoy shall be alwaies intended reasonably to wit if it may without any thing to be done by him to the contrary and here if he had not made the Surrender he might have enjoyed the Scite untill the end of his Term and therfore because it cometh of his own act wherby he or his Assigns shall not enjoy it for the Term if it shall be said that he in the Reversion shall not be said in by the Termor of which he himself shall not take any advantage in as much as if this had not been he might have enjoyed for the whole Term. To which all the other Iustices also agreed and upon this Iudgment was given for the Plaintiff But if any had defeated the said Term by a lawfull entry by a Title Paramount the Obligation had not been forfeited for any default of payment after this Entry but if Rent had been reserved upon the Lease and for default of payment a Re-entry had been made yet by Popham the payment ought to be continued upon the perill of the forfeiture of the Obligation for the words may enjoy in as much as there it is the meer default of the Defendant himself there the Lease does not continue of which he shall not take advantage to save his Obligation But note the form of the Demurrer and that it might have been been better ioyned which is to be seen in the Record where it is entred Easter Term 36 Eliz. Geilles versus Rigeway IN debt for 306. l 6. s. 8 d. by William Geillies against Thomas Rigeway Esq late Sheriff of Devon For that wheras John Chaunder alias Chaundeler was in execution with the said Sheriff for the said summ the said Sheriff afterwards to wit the tenth day of December 34 Eliz. at London in such a Parish and Ward suffered him to escape the said Rigeway then being Sheriff of Devon and having him then in execution c. To which the Defendant pleaded how that he took him in Execution by the Proces at Stockram in the County of Devon as the Plaintiff hath alledged and there detained him in safe custody untill the 8th day of December 34 Eliz. at which day the said Chaundeler broke the Prison and escaped out of it contrary to the will of the said Defendant and that the Defendant did freshly pursue him and in this fresh pursuit did re-take him the 11th day of December then next ensuing at Stockram aforesaid and detained him in execution for the said 306 l. 6 s. 8 d. during the time of his Office and delivered him ever to the new Sheriff c. To which the Plaintiff replyed by protestation that he did not make fresh pursuit And for plea saith That after the going away of the said Chaundeler and before his re-taking by the said Defendant as aforesaid the said Chaundeler for a whole day and night to wit at London in the Parish and Ward aforesaid was out of the view of the said Defendant c. Vpon which it was demurred in Law And it was moved by Cook Attorney-generall that Iudgment ought to be given for the Plaintiff for in as much as it was alledged that he was out of the view of the Sheriff for a day and a night together there it shall be intended to be a default in the Defendant in the making of his pursuit and therfore chargable to the Plaintiff and yet he agreed that if the Sheriff had made his pursuit freshly although that at the turning of a Lane end of a house or the like the Prisoner had been out of the view of the Sheriff for a small time as untill the Sheriff commeth to this turning end of the house or the like yet the Sheriff may re-take the Prisoner and he shall be yet said to be in execution to the party against his will yet when he is for so long a time out of his view it shall be otherwise for the default which the Law presumes to be in him and therfore in this case the action lies To which it was answered by Popham Gawdy and Clench That if he makes fresh pursuit so that it doth not appear fully that there was a default in the Sheriff in his pursuit although he were so long out of his view yet he shall be said to be in execution for the party against his will upon the retaking of him As if be be pursued to a house where he is kept for a long time and the Sheriff set a guard upon the house and after this re-take him the next or any other day without departing from thence the Sheriff in such a case may re-take him upon his coming out of the house and he shall be in execution to the party against his own will And so in all like Cases As if he pursues him in the night so as he cannot see him and yet by the tract of the horse or enquiry he makes diligent pursuit to re-take him so that it cannot appear that there was any negligence or default in him
disguised For the wholness and closness of your Garments they do signifie integrity to be used in your advices and secrecy in your councels And in that the Garments being single and unlined it betokeneth that you should be sincere and plain in your advises and not double carrying your opinion to your self one way and you advise it your Client clean another way The two Tongues do signifie that as you should have one Tongue for the Rich for your Fee as a reward for your long studies and labours so should you also have another Tongue as ready without reward to defend the Poor and Oppressed And therin to shew your seves thankfull to God for all that which he hath bestowed upon you And for the Rings you give as Gold is amongst all Mettals the purest so should you be of all others of your Profession the perfectest both in knowledge and in the other Virtues before remembred And in that it is a Ring and round without end it betokeneth that you have made a perpetuall Vow to this your Profession and Calling and are as it were wedded unto it And therfore I heartily wish you may alwaies walk therin according as appertaineth to your Calling And this done the ancienst Serjeant beginneth to recite his pleading and so each after other in order And that done the ancientest kneeleth down before the chief Justice of England and so the rest before the Justices and Barons as they are in ancienty and had severally by the said chief Justice their Coifs put upon their heads and then their red Hoods upon their shoulders and then the Serjeants return to their Chambers and put on their party colourd Garments and so walk on to Westminster the one after the other as they be in ancienty bare-headed with all their Coifs on and so are in their turn presented the one after the other by two of the ancientest Serjeants And after their pleadings recited they give their Rings in the Court by some friends and so are therupon set in their place at the Bar according to their ancienty And all this done they return to their Chambers and there put on their black Gowns and red Hoods and come into the Hall each standing at his Table according to his ancienty bare-headed with his Coif on and after setteth himself upon the Bench having a whole mess of meat with two courses of many Dishes served unto him And in the afternoon they put on their Purple Gowns and then go in order to Pauls where it hath been accustomed that they heard Service and had a Sermon Edwards versus Halinder 4. IN an Action upon the Case by Rice Edwards against Edward Halinder The Plaintiff declared by his Bill that one Edward Banister was seised in his Demesne as of Fee of a Messuage in such a Parish and Ward in London and being so seised did let to him the Cellar of the same house the 23. day of April 32 Eliz. for a week from the same day and so from week to week so long as the parties should please at such a Rent by the week wherby he was possessed And further that the said Edward Banister being seised of the said house as is aforesaid afterwards to wit 29. July in the 32. year aforesaid gave to the said Defendant Officium Anglice the Warehouse of the said Messuage being right over the said Cellar for a week from thenceforth and so from week to week so long as the parties should please paying such a Rent wherby the Defendant was therof possessed accordingly And the Plaintiff being possessed of the said Cellar and the Defendant of the Warehouse as aforesaid and the Plaintiff then having in the said Cellar three Butts of Sack to the value of 40 l. c. The Defendant the 30 day of July in the 32. year aforesaid put such a quantity of weight and burthen of Merchandize into the said Warehouse and therby did so overburthen the floor of the said Warehouse so that by the force and weight of the said burthen the said floor the said 30. day of July was broken and by force therof did fall and that therby the Merchandize that were in the said Warehouse did fall out of the said Warehouse into the said Cellar upon the said Vessels of Wine and by force therof brake the said Vessels of Wine wherby the said Wine did flye out of the said Vessels and became of no value to the Plaintiffs damage of a hundred pound c. To which the Defendant saith That within a small time before the Trespasse committed the floor of the said Warehouse sustained as great a burthen of Merchandize as this was And that the Warehouse was demised to him as the Plaintiff hath alledged to lay in it 30. Tun weight wherby he was possessed and so possessed the said 30. day of July did put into the said Warehouse but 14. Tun weight of Merchandize and that the damages which the Plaintiff had by the breaking of the floor was because the floor at the time of the laying of the merchandise upon it also before the lease made to him therof was so rotten and a great part of the Wall upon which the said floor lyes so much decayed that for default of Reparations and supporting therof by those to whom the reparations did belong before the Lease therof made it suddainly brake which matter he is ready to aver Wherupon the Plaintiff demurred and Iudgment was given for the Plaintiff in the Exchequer upon which a Writ of Error was brought in the Exchequer Chamber and the Error assigned was that the Iudgment ought to have been given for the Defendant because that now it appeareth that there was not any default in the Defendant for he was not to repair that which was so ruinous at the time of his Lease and therfore if it did bear so much lately before it cannot fall by the default of the Defendant in the weight put upon it but by the ruinousnes of the thing demised And yet by the advice of the Iustices the Iudgment was this Term affirmed for the Plaintiff hath alledged expresly that the floor brake by the weight of the Merchandize put upon it which ought to be confessed and avoided or traversed wheras here he answers but argumentatively to wit that it did bear more before therfore that he did not break it by this weight or that it was so ruinous that it brake Ergo not by the weight wheras here it is expresly alledged that it brake by the weight put upon it and if lesser weight had been put it would not have broken And he who takes such a ruinous house ought to mind well what weight he put into it at his perill so that it be not so much that another shall take any damage by it But if it had fallen of it self without any weight put upon it or that it had fallen by the default only of the posts in the Cellar which support the floor with which the
resolved by all the Iustices as he said that it shall passe and he said that himself was of this opinion also And to say that by grant of Land at Common Law the use had been raised out of the possessions of the Land which the Grantor then had and by it passe to the Bargainee and that it shall not be raised and passed to another by grant of Land in consideration of marriage which is a more valuable consideration then money is absurd and against all reason And for the solemnity Vses in such cases in respect of marriage were the cause that they alwaies were left as they were at Common Law and not restrained as the case of bargain and sale is which by Common intendment may be made more easily and secretly then that which is done in consideration of marriage which is alwaies a thing publike and notorious but it is not reasonable that every slight or accidentall speech shall make an alteration of any Vse As if a man ask of any one what he will give or leave to any of his Sons or Daughters for their advancement in marriage or otherwise for their advancement this shall be but as a bare speech or communication which shall not alter or change any Vse But where there is upon the Speech a conclusion of a Marriage between the friends of the parties themselves and that in consideration therof they shall have such Lands and for such an Estate there the Vse shall be raised by it and shall passe accordingly to the parties according to the conclusion which Fennor granted But by Popham If it may be taken upon the words spoken that the purpose was to have the Estate passe by way of making of an Estate as by way of Feoffment c. then notwithstanding the consideration expressed the use shall not change nor no Estate by it but at will untill the Livery made therupon And therfore if a man make a Deed of Feoffment with expresse consideration of marriage although the Deed hath words in it of Dedi Concessi with a Letter of Attorney to make Livery therupon there untill Livery made nothing passe but at will because that by the Warrant of Attorney it appeareth the full intent of the parties was that it shall passe by way of Feoffment and not otherwise if it be of Land in possession And if it be of Land in Lease not untill Attornment of Tenants which was granted by all the Iustices But if a man in consideration of money makes a Deed of Gift Grant Bargain and Sale of his Lands to another and his Heirs by Deed indented with a Letter of Attorny to make Livery if Livery be therupon made before Inrolement there it hath been adjudged to passe by the Livery and not by the Inrolement But by Popham where Land is to passe in possession by Estate executed two things are requisite The one the grant of the said Land the other the Livery to be made therupon for by the bare Grant without Livery it doth not passe as by way of making of an Estate And this is the cause that such solemnity hath been used in Liveries to wit if it were of a Messuage to have the people out of it and then to give Seisin to the party by the Ring of the door of the House and of Land by a Turff and a Twig and the like which may be notorious Yet I agree it shall be a good Livery to say to the party Here is the Land enter into it and take it to you and your Heirs for ever or for life or in tail as the case is And albeit Livery by the View may be made in such manner yet by the sealing of the Deed of Grant upon the Land or by grant of it upon the Land without Livery nothing passe but at will But if therupon one party saith to the other after the Grant or upon it Here is the Land enter upon it and take it according to the Grant this is a good Livery But he ought to say this or somthing which amounts to so much or otherwise it shall not passe by the bare Grant of the Land although it be made upon the Land Clench said That when Thomas said to Eustace Stand forth here I do give to thee and thine Heirs these Lands this amounts to a Grant and a Livery also and by the words of the Reservation of the Estate to himself and his wife for their lives in this the Law shall make an use in the said Thomas and his wife for their lives so that by such means it shal enure as if he had reserved the use therof to him and his wife and so it shall enure to them as it may by the Law according to his intent without doing prejudice to the Estate passed to the said Eustace And afterwards Term Mich. 36 37 Eliz. the Case was again disputed amongst the Iustices and then Popham said That the Case of Baâ—gains and Sales of Lands in Cities as London c. as appeareth in Dyer 6. Eliz. are as they were at Common Law To which all the Iustices agreed and therfore shall passe by Bargain by parole without writing And by Bayntons Case in 6 7 Eliz. it is admitted of every side that an Vse was raised out of a Possession at Common Law by Bargain and Sale by parole and otherwise to what purpose was the Statute of Inrolements and by the same case it is also admitted now to passe by parole upon a full agreement by words in consideration of Marriage or the continuance of Name or Blood For it is agreed there that the consideration of nature is the most forceable consideration which can be and agreed also that a bare Covenant by writing without consideration will not change an Vse therfore the force therof is in the consideration of which the Law hath great respect And therfore the Son and Heir apparant ex assensu patris onely may at the door of the Church endow his wife of his Fathers Land which he hath in Fee and this is good by Littleton although the Son hath nothing in it wherby an Estate passe to the wife which is more then an Vse Nature is of so strong consideration in the Law And therupon after advice Iudgment was given for the Plaintiff the Roll of this appeareth in Banco Regis 1 Hill 35. Eliz. Rot. 355. And upon this Iudgment a Writ of Error was brought and the Iudgment aforesaid reversed in the point of Iudgment in the Exchequer by the Statute of 27 Eliz. Kettle versus Mason and Esterby 6. IN a second deliverance between Joh. Kettle Plaintiff and George Mason Vide this case Coke lib. 1. 146 c. and Francis Esterby Avowants the case appeared to be this Thomas May was seised of the Mannor of Sawters and Hawlin in the County of Kent in his Demesne as of Fee and being so therof seised enfeoffed Thomas Scot and John Fremling and their Heirs
this Thomas Plain was seised in his Demesne as of Fee of a Messuage in S. and so seised did let it to the Defendant for divers years yet to come rendring Rent payable at four usuall Feasts of the year the Lessee entred accordingly after which the said Plain by Bargain and Sale enrolled conveyed the Reversion therof to the said Humble and his Heirs and before the Feast of the Annunciation of our Lady 35 Eliz. to wit the 1. day of February in the same year the said Oliver assigned over his whole Term to one Southmead who before the same Feast entred accordingly and for the Rent due at the Feast the Annunciation of our Lady the Plaintiff brought this Action And it was agreed by the whole Court that the Action would not lie against him for although Plain if he had not aliened the Reversion over might have had this Action against the said Oliver notwithstanding that he had assigned over his Term before for the privity of contract which was between them in as much as they were parties to it of either part yet the Grantee of the Reversion shall not have advantage of the privity he being a meer stranger to the Contract and now was but privy in Law by the Bargain and therfore now he hath no remedy but against him who had the Estate at the time when the Rent hapned to be due and this is Southmead and not Oliver The Roll of this case is in the Kings Bench Hill 36. Eliz. Rot. 420. Mich. 36 37 Eliz. In the Kings Bench. Button versus Wrightman 1. IN an Ejectione firmae between John Buâ—ton Plaintiff and Etheldred Wrightman Widow and other Defendants for a House and certain Lands in Harrow The Case upon a speciall Verdict was this The Dean and Chapter of Christs Church in Oxford were incorporated by K. H. 8 by his Letters Patents dated 4. Novemb. 38 H. 8. by the name of the Dean and Chapter of the Cathedrall Church of Christ c. Oxford of the Foundation of King Henry the 8th and so to be called for ever after which the said Dean and Chapter was seised in their Demesne as of Fee of the said House and Land and so being seised by the name of the Dean and Chapter Ecclesiae Cathedralis Christi in Accademia Oxon. ex fundatione Reg. H. 8. enfeoffed Edward late Lord North therof by their Deed hearing date the 21. day of April 1. E. 6. who afterwards dyed and the now Lord North entred and did let it to the Plaintiff who was ousted by the Defendant claiming the said House by a Lease made by the said Dean and Chapter in the time of Queen Elizabeth for divers years yet to come and whether his entry were lawfull or not was the question and all depends upon the mis-naming of the Corporation But it was found that the City of Oxford and the Vniversity of Oxford were all one and that the Town of Oxford was made a City by the Charter of King H. 8. And by Fennor the Feoffment made to Edward Lord North for the misnaming of the Corporation was void for he said that Accademia villa de Oxford are divers in name and divers in nature for the Vniversity is to the Schollars and learned men there and the Town for the Inhabitants and the name of a place is a principal thing in a Corporation which in a new Corporation ought to be precise according to the very Letter of the Charter therof And therfore in the case of Chester it was agreed that Cestria being omitted the Charter for the Dean and Chapter there had been void But by Popham Gawdy and Clench this is not such a mis-naming as to the place which shall make the Feoffment void for suppose it had been Decanus Capitalis Ecclesiae Cathedralis Christi in Civitate Oxon. it had been good for Oxon. Civitas Oxon. are one and the same So it is if an Hospitall be erected by the name of the Hospitall of S. Johns in S. Clements and they make a Grant by the name of the Hospitall of S. Johns in the Parish of S. Clements it is good for it appeareth to be the same And here if a man will say that it shall go to the Vniversity of Oxford this every one conceives to be the Town of Oxford and so of Cambridge and therfore in 8 H. 6. it was agreed to be a good addition for the place in an Action personall against such a one Chancellor of the Vniversity of Oxford and so it is against J. Rector of the Parish Church of Dale without any other addition for the place yet the Statute is that it ought to be named of what Town Hamlet or place the party is And by Popham the place in a Corporation may well be resembled to the Sur-name of a man and as a Grant made by any persons Christian name as John Thomas c is not good so in a Corporation it is not good to say Dean and Chapter Mayor and Comminalty and the like without saying of what place And anciently men took most commonly their Surnames from their places of habitation especially men of Estate and Artizans often took their names from their Arts but yet the Law is not so precise in the case of Sur-names and therfore a Grant made by or to John Son and Heir of I. C. or Filio juniori I. S. is good But for the Christian name this alwaies ought to be perfect So in the case of a Corporation it sufficeth to have a sufficient demonstration of the place where the Corporation is albeit it be not by the precise words comprised in the Charter as in naming Accademia Oxon. pro Villa Oxon and it is common of which I have seen divers Charters where a Town was incorporated by the name of Mayor and Comminalty of such a Town as Bristoll Exeter and others which afterwards have been made Cities and yet Charters made to them and Grants made by them by the name of Mayor and Comminalty of the City is good but more precisenesse is vsed in the body of the name of a Corporation before the place to which they are annexed and yet in them that which is but an ornament to the name comprehended in the Charter shall not hurt the Grant as of Chapiter of S. George of Windsor if it be of S. George the Martyr and the like the Grant by such a name is good because the Martyr is but an addition of Ornament to the name comprised in the Charter and it is no other but the same in re vera So here if it had been Domini nostri Jesu Christi because it is the same and is but an ornament to the word Christ comprised in the Charter and so should it be also if it had been Christi filii Dei Salvatoris nostri because it is but a true addition to the same wherupon Iudgment was given for the Plaintiff as appeareth in the Kings Bench Pas
If the Tenant for life had made a Feoffment in Fee and he in the Remainder had released to the Feoffee the Vse had been gone for ever so in all these cases of contingent Vses at this day for he who cometh to the possession of Land by Disseisin or wrong done to the Possessor who is seised to anothers use shall never be seised to anothers use And the case being so that it is out of the letter of the Statute to execute such contingent Vses it is more strong for them out of the meaning of the Statute to execute then before they happen to be in Esse for this shall be to make all mischiefs comprehended in the Preamble of this Statute and against which the Statute intended to provide sufficient remedy in a worse mischief then they were before the making of the same Statute and this shall be but a perverse instruction of the Statute And they said that the subtleties used from time to time by means of those Vses to the great deceit and trouble of the people were the cause of the making of this Statute 27 H. 8. and by all the Statutes formerly made touching Vses it appeareth that they were all taken to be grounded upon fraudulent and crafty devises and therfore this Law had no great purpose to favour them but a Fortiorari not to make them in worse case by means of the Statute then they were before and therfore it shall not be taken that the Vse is executed by the Statute which stands upon a contingency of which a greater mischief will ensue then there was in such a case before the Statute and therfore by the Feoffment made in the interim before the birth of the Infants which otherwise ought to have preserved the Vse this Vse was utterly destroyed and although the Feoffee of Christopher had notice of the Vse yet this doth not now help in the case because the Feoffment did wrong to the Estate first setled which was subject to the Vse and extinct in the same possibility which had been otherwise in the Feoffees to have given livelyhood to the said Contingent Vse And therfore the Iudgment by them ought to be that the Plaintiff shall be barred Walmesley That the great mischief which was at Common Law upon these Feoffments to Uses was that none could know upon the occupation of the Land who was true Owner of the Land for Cestay que Vse was the Pernor of the Profits but in whom the Freehold or Inheritance of the Land was there were not many which knew wherby great mischief came to the assurances which men had of Land which they purchased and by it men knew not against whom to bring their Actions to recover their Rights and by it Wives lost their Dowers Husbands their Tenancy by the Curtesie Lords their Escheats Wardships and the like And this mischief hapned by reason that one had the profit and another the estate of the Land And the Statute was made to put the Land and the Estate quite out of the Feoffee who before did not meddle with the Land to Cestay que Use who before had but the occupation and profits of the Land and to this intent the letter of the Law serves very well which sayes that the Estate of the Feoffee shall be cleerly in Cestuy que Use and therfore nothing by the intent and letter of the Law is now to remain in the Feoffee no more then a Scintilla juris nemor'd in Brents Case in my Lord Dyer Eliz. and the whole Estate in the interim untill the contingent happen shall be in them who have their Vses in Esse and when the Contingent happen the Statute gives place to this Contingent Vse and by the execution therof comes between the Estates before executed and as out of these by the Statute but nothing is now after the Statute in the Feoffees for the purpose of the Statute was as I have said to take away all from the Feoffee for all was devested from him because that betwixt the Feoffor the Feoffee was all the fraud before the Statute and the very letter of the Statute is to extinguish and extirpate the assurances fraudulently made which was alwaies by reason of assurances made between the Estate of the Land in one and the possession therof in another and to cause that now that the Estate shall be to the use where the occupation was before And this Statute was not made to extinguish or discredit Vses but to advance them as by bringing the very Estate in possession to the Vse and by it the trust now taken from all others who were trusted with it before so the Statute doth not condemn the uses but the fraud which was by reason of them before And the Statute being that the Estate Right and Title of the Feoffees shall go to the uses therfore nothing remaineth in the Feoffees but all by authority of Parliament adjudged to be in Cestay que use which is the highest Iudgment that can be given in any Court and the words Stand and be seised at any time refer as well to the future as present uses and the Statute intended as well to help the uses which shall be upon any Contingent as those which are at present for a future or contingent Vse is to be said an Vse according to its nature or quality and it shall be executed according to its quality when it happen And the words are that the Estate which was in the Feoffee shall be in Cestay que use and not the Estate which is and therfore when the use hapneth to be in an instant the Estate which at the first Livery was in the Feoffee to this use shall now be executed in possession to this contingent use albeit it self was altogether executed as I said before in the Vses which were in Esse and if so it followeth that nothing which is done in the mean time by the Feoffee or can be done by any other can prejudice or hurt the execution of this Vse in contingency when the contingency happen And for the case of Brook 30 H. 8. it is plain in paint which is this A Covenant with B. that if B. enfeoff him of three acres of Land in D. that then the said A. and his Heirs and all others seised of such Lands shall stand therof seised to the use of the said B. and his Heirs after which A enfeoffed a stranger of this Land after which B. enfeoffed the said A of the said three acres now the use shall be to the said B. and his Heirs of the said other Land for the Statute so binds the Land to this Contingency when it happens that by no means it can be defeated and this is the cause that Leases made by force of Provisoes comprised in assurances are good and cannot be avoided for the Interests to these Leases is wrought by the first Livery and the Statute atd therfore upon the matter I conceive that Judgment ought
to be given for the Plaintiff Gawdy conceived that it is executed by the intent but not by the letter of the Statute for the purpose was to remove all the Estate from the Feoffee and to put it in Cestay que use wholly to wit in possessions to the Vses which were in Esse and in aleyance as to the Vses which were to come and contingent and now by the same Statute the contingency of the possession shal go in licence of the contingent Vse and now an Vse limited to one for life with Remainder over to the Heirs of the body of I. S. or to the first Son of I. S. shall be in the same manner as if Land at this day had been letten to one for life with Remainder over to the Heirs of the body of I. S. or to the first Son of I. S. and not otherwise for the quality which he had in the Vse the same by the very letter of the Statute he shall now have in the possession and Estate of the Land and the Statute is not to undo any Vse but to transfer an Estate in the Land to the Vse But he said That by the Feoffment made to Christopher the Contingent remainder which was devested in Stretchly and Iohn Chudleigh depending upon the Estate which Sir Iohn Saintleger and his Co-feoffees had for the life of Christopher is utterly gone and destroyed in the same manner as where a Lease is made for life the remainder to the right Heirs of I. S. or to the Heirs of the body of I S. if the Tenant for life dies or aliens wherby he makes a forfeiture and determines his Estate in the life of the said I. S. his Heir shall never have the Land by the remainder afterwards because he was not in Esse as an Heir at the time when the Estate ended for there cannot be a remainder without a particular Estate neither can it stand or be preserved And as in this case without a particular Estate of Free-hold a Remainder cannot be no more in the case now in question being now become by means of the Statute as if it had been an Estate executed in possession and for this cause only he conceived that Judgment ought to be given against the Plaintiff And Clench agreed with this opinion in all and both of them agreed if there be none to take the Vse according to the limitation at the time when it falleth to be in Possessions that he shall never take it although it happen to be in Esse afterwards Clark said that Uses were not at Common Law but grew by sufferance of time as appeareth by the words of the Statute it self and the mischief and subtlety which was before this Statute was not in the Fine Feoffment or other Assurances of Land but by means oâ— the Uses limitted therupon contrary to that which was used in the ancient course oâ— the Common Law and the Statute was made to reduce the Common Law to its ancient force and course and therfore ought to conceive such a construction as may agree with the purpose of the makers of the Statute and therfore the best construction of this Statute is not to execute other manner of Uses but in some cases to extinguish them as where it is such as will make the case in as ill or worse condition then it was before the making of the Statute It hath been agreed by all that the Statute doth not execute any Use which was suspended at the time of the making of the Statute as by reason of a Disseisor or the like hapning before and if it doth not execute the Use which is in suspence for the right which he had in the Use how can it execute the Use which hath not any being for in such cases of Infants not born as here untill they be in Rerum natura the Use cannot have any being And in the same manner in all cases where the Vse is not to rise but upon a future contingent And what good shall this Statute do if these leaping Vses shall arise without being impeached Nothing but alwaies nourish a Viper in the bosom of the Law which is quite against the intent of the makers of the Statute The Law was made to preserve peace amongst the Subjects and to assure their Possessions as many other Statutes did that were made about this time as the Statutes of Fines Wills and others But if the exposition of this Statute shall be as the other side hath taken it it will make the confusion which will happen therupon intollerable and much worse then it was before the Statute was made and as Walsh said if no assurance can be made to be forcible against such a contingent Use this will make it worse then it was before And hesaid that it was not to be compared to the interest of Lands to begin at a time to come nor to the case where a man devise that his Land shal be sold in which case be shall not be impeached by any manner of assurance to be made in the mean time by the Heir and the reason is because the Vendee takes by the Will under the Estate of the Heir and not by the sale and therfore upon the matter he conceived that the Plaintiff ought to be barred Periam said that Uses were at Common Law and to prove it he vouched 24 H. 8. abridged in Brook And he said that there have been alwaies trusts Ergo Uses ab initio but they had not such estimation at the beginning as they have had by continuance of time and so it was of Copyholds And these Uses at Common Law bind but in privity according to the trust but do not bind in the possession of him who cometh to the Land in the Post But now by the Statute all trusts are gone and the Estate of the Land it self transferred to the Use and now the Use guides the Land and not the Land the Use And the Statute did not intend to destroy any Use but to bring it back to the Possession according to the course of the common Law and to avoid the fraud And as before the Statute the Use it self in such a case of Contingency was in obeyance for the time so now the Estate it self is in obeyance by the Statute which wills that he shall now have an Estate in the Land it self of such a quality as he had before in the Use for the Statute puts all cleerly out of the Feoffees and it is not inconvenient to have a Possession so to a Contingent Use and if it had not been in the words of the Statute yet as hath been sayd it shall be so taken by the intent of the Statute for it never was the intent of the makers of the Statute to do wrong to any by means of the Statute And therfore he put the case of Cramner who made a Feoffment to the use of himself for his life and after his decease to the use
of his Executors for years this Estate for years is not now vested in any because a man cannot have an Executor during his life and yet it remains as in the custody of the Law untill there are Executors to take it And he said that the case of the Lady Bray was as strong to prove the case in question to be at he takes it which cannot be answered for if she had married with the Lord Bray by the assent of the Councell assigned for it according to the agreement she had taken an Estate by the Contingency but in as much as she did not do it it was otherwise And we are to consider well what we do in this case it is a Tree the branches wherof over-shadow all the Possessions of the Realm in effect for the Estates and Leases in manner of all stand upon those assurances to Uses and to pull up such a Tree by the roots is to put all the Realm in a confusion and therfore if there be any mischief therin it is better to help it by Parliament then to alter it by Judgment And so upon the whole matter I conceive that Judgment ought to be given for the Plaintiff Anderson That an Use was not at Common Law for the Common Law had no respect to it but to the Feoffee and it was the person who by the Law had any thing to do in the Land and not Cestay que Vse for he might punish Cestay que Vse for his medling with the Land and Cestay que Vse had no remedy against him by no means But by Suboepna in the Court of Conscience And further an Vse being limited to another in Fee no Vse can be limited further therupon for any Estate And it hath been well sayd that the letter of the Statute of 27 H. 8. did not tend to execute this Vse which was not in Esse and for the intent therof that it did not tend to execute any contingent Vse untill that it happen which is proved by the case that an Estate for years being assigned over or granted to an Vse the Vse of this is not executed by the Statute of 27 H. 8. as it was agreed about 27 Eliz. and what was the reason in the case but because there was not any Seisin in the Vse but only a possession to the Vse wherby the words of the Statute are much to be regarded And here how can there be a Seissin to the Vse which is not it cannot be and therfore for the like reason as in the other case it is never executed nor shall be removed by means of such an Vse untill it hapneth to be an Vse in Esse And for Brents Case I have alwaies taken the better opinion to be that the Wife cannot take in the case for the mean disturbance notwithstanding the Iudgment which is entred therupon which was by assent of the parties and given only upon a default made after an Adjournment upon the Demurrer for he said that he had viewed the Roll therof on purpose and if it be that such a Contingent Vse be not executed untill it hapneth to be in Esse here it appeareth that by the Feoffment Christopher is in of another Estate which was not subject to the Vse because he is in by forfeiture and wrong made to this Estate and therfore not bound to the Vse in Contingency although he made it without consideration and although he had notice of this contingent Vse and therfore this contingent Vse utterly defeated before it had any being But in all the Cases put on the other side it doth not appear that there was any thing done in disturbance of these mediate uses before they hapned and therfore not to be compared to this case wherby he conceived that the Plaintiff ought to be barred Popham said That in as much as the manner of assurance made by Sir Richard Chudleigh may seem strange and in some manner to touch the reputation of the said Sir Richard who was a grave and honest Gentleman to those who heare it and do not know the reason why he did it which I remember to be this as I have heard to wit That the said Christopher had killed one Buller a Gentleman of good reputation wherupon he fled into France and the said Sir Richard doubting what would become of his Estate if he should dye before he had setled his Land and yet having a desire to have power to undo the assurance which he purposed to make if he pleased his Councell then thought the best way to make and devise the assurance so that such an Estate of Inheritance might therby be in him which could not descend to the said Christopher and yet such that he might therby undo the assurance made by the Recovery when he pleased and yet such also as should never take effect in any of the Issues of his other Wives to the prejudice of his right Wives because he never had a purpose to marry with any of these Wives And to that which hath been touched by Periam That this Limitation first made is a Fee-simple in Sir Richard I conceive cleerly the contrary For if it should be so then no Vse could be limited over upon this Fee-simple as hath been said before and therfore all the remainder of the Case had been to no end but he said that it was an Estate-tail speciall in Sir Richard and denied the opinion of Ay scough taken so in 20 H. 6. and this by reason of the Statute of Donis conditionalibus which wills Quod voluntas donatoris secundum formam doni in charta doni manifeste expressam de caetero observetur And here it is expresse that the Heirs of Sir Richard begotten upon any of the said Wives shall have the Land and therby it shall be understood that his Heirs shall be intended by common intendment the Heirs by him To which opinion Anderson agreed And for the matter Popham conceived cleerly that there was not any such use at Common Law as we commonly call an use and yet he acknowledged there were alwaies trusts at Common Law but every trust is not to be said an use for none will doubt but that a tâ—ust may be and is many times put in others at this day as upon puâ—chaseâ— made in other mens names and assurances also upon trust and yet we will not say that this is an use and without doubt such trusts were at Common Law but not the uses aforesaid and the reason that moved him to take the Law to be so was that he had not seen any ancient record Statute or Book of Law nor any writing before the time of Ed. 3. which made any mention of this word use and if it had been at Common Law without doubt as they said some mention would have been made therof The reasons which are alledged in 27. H. 8. and in the case vouched 24. H. 8. that a trust was at Common Law is by the one of them
not properly said an Use untill that it be said in Esse to take the Profits themselves But I am to turn this Argument against him who made it for if it be so the Use can never be in suspence and iâ— so it follows that no Possession by means of any such Use can be in suspence but staies where it was before to be executed when the Use happens to be in beeing But as to that that a Reversion or Remainder may be of that which we call an Use so also may such a Use be in suspence in the same manner as the Possession it self but not otherwise And as to Cramners Case formerly put the Law is so because nothing appeareth in the case to be done to the disturbance of this contingent Vse in the interim before it happen But upon the Case put of the Lady Bray upon which it hath been so strongly relied it was thus The Lord Bray made an assurance of certain Lands to the use of certain of his Councell untill the Son of the said Lord Bray should come to the age of 21. years for the livelyhood of the said Son and of such a Wife as he shall marry with the assent of the said Councell and then to the use of the said Son and of the said Wife and of the Heirs of the body of the said Son The Father dies the Son was become in Ward to the King after which one of the said Councellors dies the King grants over the Wardship of the said Son after which the said Lord Bray by the assent of his Guardian and of the surviving Councellors marries the Daughter of the then Earl of Shrewsbury after which the Husband aliens the same Land to one Butler and dies and upon Action brought by the said Lady against the said Butler for the same land she was barred by Judgment and upon what reason because she was not a person known when the Statute was made which must be in every case of a Freehold in Demesne as well in case of an Use as in case of a Possession And therfore a Lease for years the Remainder to the Heirs of I. S. then living is not good and the same Law of an Vse And so it was agreed by all the Iustices very lately in the case of the Earl of Bedford but in these Cases it remaineth to the Feoffor and because it doth not appear at the time of the assurance who shall be the Wife of the said Son so that there was not any to take the present Free-hold by name of the Wife of the Son she takes nothing by the assurance but this reason makes for our side to wit That if there were none to take the Free-hold in Demesne from the Use when it falleth he shall never take it The other reason in this Case was because she was not married by the consent of all the Counsellors for that one was dead nor according to the power given by the agreement but by the authority of the Guardian that the power which the Father had upon his Son was ceased And Nota That by a Disseisin the contingent Use may be disturbed of his Execution but there by the regresse of the Feoffee oâ— his Heirs when the Contingent happen it may be revived to be executed But by the release of the Feoffee or his Heirs the Contingent in such a case by Popham iâ—â—â—â—red oâ— all possibility at any time to be executed And to that which hath been said that the generall and universall Assurances of men throughout all the Realm at this â—ay arâ— by means of Vses and that it shall be a great deal of danger and inconvenience to draw them now in question or doubt and that it now trembleth upon all the Possessions of the Realm and therfore it shall be too dangerous to pull up such Trees by the roots the Branches wherof are such and so long spread that they overshadow the whole Realm Popham said That they were not utterly against Uses but only against those and this part of them which will not stand with the publike Weal of of the Realm and which being executed shall make such an Estate which cannot stand with Common Law of the Realm or the true purport of the Statute and therfore he said that it was but to prune and cut off the rotten and corrupt branches of this Tree to wit that those which had not their substance from the true Sap nor from the ancient Law of the Realm nor from the meaning of the Statute and so to reduce the Tree to its beauty and perfection The same reason he said might have been made in the time of Edw. 4. against those Arguments which were made to maintain the common Recoveries to bar Estates-tail But if such a reason had been then made it would have been taken for a bare conceit and meer trifle and yet Vses were never more common then Estates-tail were between the Statute of Donis conditionalibus and the said time of Edw 4. But the grave Iudges then saw what great trouble hapned amongst the people by means of Intails and what insecurity happened by means therof to true Purchasors for whose security nothing was before found as we may see by our Books but collaterall Warranty or infinite delay by Voucher and thus did the Iudges of this time look most deeply into it wherupon upon the very rules of Law it was found that by common Recovery with Vouchers these Estates-tail might be barred which hath been great cause of much quiet in the Land untill this day that now it begins to be so much troubled with the cases of Vses for which it is also necessary to provide a lawfull remedy But he said plainly That if the Exposition made on the other side shall take place it will bring in with it so many mischiefs and inconveniencies to the universall disquiet of the Realm that it will cast the whole Common-wealth into a Sea of troubles and endanger it with utter confusion and drowning And to that which was said That a Remainder to the right Heirs of I. S. or to the Heirs of the body of I S. or to the first Son as here are so in the custody of the Law that they cannot be drawn out that therfore no forfeiture can be made by the Feoffment made by him who hath the particular Estate To that he said That a Disseisin made to the particular Estate for life draws out such Remainders to the right Heirs as is proved expresly by 3 H. 6 where it is holden that a collaterall Warranty bars such a Remainder in obeyance after a disseisin And by Gascoigne 7 H. 4. If such a Tenant for life makes a Feoffment in Fee it is a Forfeiture but he conceived that in the life time of I. S. none can enter for it but this is not Law and when by the Feoffment the particular Estate is quite gone in possession and in right also the remainder shall never take
effect by the very rules of Littleton And by 27 H. 7. which is That a Remainder cannot be unlesse there be an Estate upon which it may have dependency which there it cannot but in the case of a Disseisin made to a particular Estate it is otherwise because there the Estate remains in right And to say that it shall not be a Forfeiture because the Feoffment was made to Christopher who then had the Fee-simple which was limited to the right Heirs of Sir Richard Chudleigh this is not so for by 41 E. 3. The Tenant for life himself who also had a Remainder in Fee-simple in himself depending upon a mean Estate-tail in another made a Feoffment and by it committed a Forfeiture to him in the Remainder in tail But if Tenant for life Remainder in tail Remainder in Fee enfeoff him in the Remainder in tail this is a Surrender of his Estate for the immediate Estate which was in him wherupon this Term Judgment was given in the Kings Bench for Fraine the Defendant against Dillon who was Plaintiff And it is entred Hill 31 Eliz. Rot. 65. Baynes Case 10. AT the Sessions holden at Newgate presently after this Term the case was this one Baines with another came in the night time to a Tavern in London to drink and after they had drunk the said Baynes stole a cup in which they drunk in a Chamber of the same House the Owner of the said House his Wife and servants then being also in the House and the cup being the Owners of the said Tavern wherupon he was indited and committed Burglary this matter appeared in the Inditement and agreed by Popham Anderson and Periam with the Recorder and Serjants at Law then being there that this was not Burglary and yet it was such a Robbery whereby he was ousted of the benefit of his Clergy by the Statute of 5. E. 6. Cap. 9. and was â—anged 11. ANd at the Sessions then next ensuing 〈◊〉 holden upon one who had stolen a silver Bason Ewer of the then Bishop of Worcester the sale made openly in the day in a Scriveners shop in London to a stranger the question was demanded of the Court whether the property were changed by this Sale so that the Bishop shall not have his Plate againe because it was alledged that they prescribed that every one of their shops in London are good Markets overt through all London every day in the week but Sunday But agreed by Popham Egerton Anderson Brian and others skilfull in the Law then being there that such a generall custome is not good and that this Sale made there albeit it were openly in the shop so that every one passing by In which case Shops in London are Markets Overt what not might see it shall not bind the property as it shall doe in Market overt for a Scriveners Cutlers Shop or the like is not proper for the Sale of I late nor a place to which men will go to seek for such a thing lost or stole But a Goldsmiths Shop is the proper Shop for it as the Drapers Shop is for Woollen cloath or the Mercers Shop for Silk and the like and to such men will go to seek for things of the like nature that are lost or stolen and not to a Scriveners Shop or the like And they agreed also that a private Sale made in the Shops which are proper to the nature of the thing sold so that the Passers by cannot in reason see it in their passage cannot bind for reason upon which the Law is founded will not admit any such custome Hillary Term 37 Eliz. in the Kings Bench. Westby versus Skinner and Catcher 1. IN Debt by Titus Westby Plaintiff against Thomas Skinner and John Chatcher late Sheriffs of London Defendants for 440 l. upon Nihil debet pleaded and a special Verdict found the Case appeared to be this See this case in Coke 3. Report fol 71. 6. to wit One Anthony Bustard with others were bound in a Recognizance in the nature of a Statute-staple of 440 l. to the Plaintif wherupon the Plaintif sued Execution out of the Chancery against the said Anthony and the other that were bound with him for the Bodies Goods and Lands of the said Obligers which writ of Execution was delivered to the said Defendants the 8th day of Prisoners in execution to be delivered over to the new Sheriff by Indenture and all the executions to be therin moved September 30. Eliz. the Defendants then being Sheriffes of London and the said Anthony being then in Newgate in Execution in the custody of the said Defendants for 240 l. at the suit of one Robert Deighton and that afterwards to wit the 20 th day of October in the same yeer the said Defendants were discharged and removed from their said Offices and Hugh Offeley Richard Saltonstall were then made Sheriffes of London and that the said Anthony being in Execution for the one and the other debt the said Defendant the said 20th day of October by Indenture delivered the said Anthony to the said new Sheriffes in Execution for the said debt of the said Robert Deighton not giving them any noâ—ice of the said Execution made for the Plaintiff and suffered the said Anthony to goe at large And whether the Defendants shall be charged for this escape was the question And the escape was alledged by the Declaration to be suffered by the said Defendants the said 20. day of October 30 Eliz. and it was moved by Tanfield that the new Sheriffs ought to take notice of their Prisoners remaining in the Goal at their coming into their Office at their perill and ought to enquire and search for the causes that then were in custody and not to deliver them of their own head without due course of Law And he put the case That if the old Sheriff had been dead in the mean time before the new Sheriffs had been made shal this be an excuse to the new Sheriffs that they had no notice for what cause this Anthony had been in Prison if they suffer him to escape And he said that it shall not no more here but per Curiam the new Sheriff shall not be charged with this Escape as to the 440 l. of which they had no notice for if this case which was private in the knowledge of the ancient Sheriff only upon a Writ directed to them at the suite of any party the new Sheriffs cannot by intendment have any knowledge unlesse it be given to them by the old Sheriffs to whom the Writ of Execution was directed and delivered And the case of one Dabridgecourt who was Sheriff of Warwick and had one in Execution whom he kept in a private Prison by himself for all his Executions in the Town of Warwick and when he was discharged of his Office and a new Sheriff made Dabridgecourt said to the new Sheriff That he had such a one in Execution
in his custody and offered to the said Sheriff to put him in the Indenture amongst his other Prisoners delivered to the new Sheriff but would hâ—ve had the said old Sheriff to have sent for the said new Sheriff to have taken him into his custody but the new Sheriff refused to receive him unlesse Dabridgecourt would deliver him into the common Gaol of the County which was in the Town of Warwick wherupon afterwards the Prisoner escaped And Dabridgecourt was charged with this Escape and not the new Sheriff for he is not compellable to take the Prisoners of the delivery of the old Sheriff but in the common Goal of the County and the old Sheriff remains chargeable with the Prisoner untill he be lawfully discharged of him and if the Sheriff dies the party shall be rather at a prejudice then the new Sheriff without cause charged with him And in such a case the party who sued the execution may help himself to wit by the remaining of the body by a Corpus cum causa wherby he may be brought to be duly in execution and this under a due Officer And Anderson Periam and other Iustices were also of opinion that the said Skinner and Catcher are to be charged with the escape in the principall case wherupon Iudgment was given for the Plaintiff which was entred Hillar 34 Eliz. Rot. 169. in the B. R. Fulwood versus Ward 2. IN a Writ of Annuity brought in the Common Pleas by George Fulwood Plaintiff against William Ward Defendant the Case was thus The Queen was seised of a Barn and Tithes of Stretton in the County of Stafford for the life of the Lord Paget and being so seised demised it by Letters Patents dated 21. June 29 Eliz. to the said William Ward for 21. years wherupon the said Ward by Writing dated 30. Iune 29 Eliz. granted to the said Plaintiff an Annuity or yearly Rent of 10 l. out of the said Barn and Tithes for 15. years then next ensuing payable yearly upon the 8. day of November with clause of Distresse The Lord Paget died the first day of March 32 Eliz. and for the Arrearages after his death the Plaintiff brought this Writ of Annuity and for the difficulty therof in the Common Pleas the Case came this Term to be argued before all the Iustices and Barons at Serjeants-Inn in Fleetstreet where it was agreed by Walmsley Fennor and Owen that the Annuity was gone by the determination â—â— his Estate in the Land who made the Grant for they said that presently upon the Grant made as before it was a Rent-charge for by such a Rent granted in Fee the Fee shall be in his Heirs albeit the Grantee dies before any Election made and such a Rent is payable from the beginning at the Land as appeareth by 12 E. 4. And by grant of Omnia terras tenementa hereditamenta such â— Rent will passe ergo it is a Rent-charge and not an Annuity untill the Election made and by the determination therof in the nature of a Rent the Election is gone as by Babington and Martin 9 H. 6. by the recovery of Lâ—nd charged with such a Rent by elder Title the Annuity is gone as it seeâ—s by their opinion and by them and by Littleton upon a Rent-charg◠〈◊〉 with Proviso that he shall not charge the person of the Grantor 〈…〉 exclude the charge of the person which proves that the Land is charâ—â—â— Originally and not the person for otherwise the Proviso would be void for the repugnancy And if so whensoever the Land is discharged as by 〈…〉 â—â—â—cent or the like the person therby is also discharged and therfore â—he Iuâ—gment here shall be that the Plaintiff shall be barred But by the chief Iustices chief Baron and all the other Iustices and Barons the Plaintiff ought to have Iudgment in this case to recover the Annuity for the Law gives him at the beginning an Election to have it as a Rent or an Annuity which matter of election shall not be taken from him but by his own Deed and folly as in case where he purchase part of the land charged in which case by his own Act he hath excluded himself of his Election But if a Feoffee upon condition grant a Rent-charge and presently break the Condition wherupon the Feoffor re-enter shall not the Feoffee be charged by Writ of Annuity surely it shall be against all reason that he by his own act without any folly of the Grantee shall exclude the Grantee of his Election which the Law gives at the beginning And they denied the opinion of 9 H. 6. to be Law But if the Disseisor grant a Rent-charge to the Disseisee out of the Land which he had by the Disseisen by his re-entry before the Annuity brought the Annuity is gone for this was his own act yet in effect all of them agreed that Prima facie it shall be taken as a Rent-charge of which the Wife shall be endowed as hath been said which passe by grant of Omnia hereditamenta and which is payable at the Land but the reason is because it is expresly granted out of the Land and also for the presumption of Law that it is more beneficiall for the Grantee to have it in such a degree then in the other But neither the presumption of Law nor the expresse Grant therof as a Rent shall not take away from the Grantee the benefit of his Election where no default was in him but that upon his Election he may make it to be otherwise as ab initio And therfore by Popham If a Rent-charge be granted in tail the Grantee may bring a Writ of Annuity and therby prejudice his Issue because that then it shall not be taken to be an Intail but as a Fee-simple conditionall ab initio And if a Termer for two years grant a Rent-charge in fee this as to the Land is but a Rent charge for two years and if he avow for it upon the determination of the Term the Rent is gone but by way of Annuity it remains for ever if it be granted for him and his Heirs and assets descend from him who granted it And if a Rent-charge be granted in fee and doth not say for him and his Heirs if the Grantee brings his Writ of Annuity the Heir shall never be charged therwith yet if he had taken it as a Rent-charge the Land had been charged with it in perpetuity And by him the cause why the Proviso that he shall not charge the person of the Grantor upon the grant of a Rent-charge is good is because the person is not expresly charged by such a Grant but by operation of Law But in such a case a Proviso that he shall not charge his Land is meerly void for the repugnancy because there the Land is expresly charged by precised words and therfore if it be expresly comprised in such a Grant that the Grantee may charge the Land or the person of the
Grantor at his Election provided then afterwards that he shall charge his person is not good Causa patet And all agreed that upon a Rent granted upon equality of partition or for allowance of Dower or for recompence of a Title an Annuity doth not lye because it is in satisfaction of a thing reall and therfore shall not fall to a matter personall but alwaies remains of the same nature as the thing for which it is given And afterwards the same Term Iudgment was given in the Common Bench that the Plaintiff shall recover which is entred c. And in the same case Clark vouched that it was reported by Benloes in his Book of Reports where a Rent was granted out of a Rectory by the Parson who after wards resigned the Parsonage that it was agreed in the Common Pleas in his time that yet a Writ of Annuity lies against the Grantor upon the same Grant to which all who agreed on this part agreed that it was Law Butler versus Baker and Delves 3. IN Trespasse brought by John Butler against Thomas Baker and Thomas See this case in Cookes 3. Report foâ— 25 Delves for breaking his Close parcell of the Mannor of Thoby in the County of Essex upon a speciall Verdict the Case was thus William Barners the Father was seised in his Demesne as of fee of the Mannor of Hinton in the County of Glocester holden of the King by Knights-service in Capite and being so seised after the Marriage had between William his Son and heir apparant and Elizabeth the Daughter of Thomas Eden Esquire in consideration of the same Marriage and for the Joynture of the said Elizabeth assured the said Mannor of Hinton to the use of the said William the Son and Elizabeth his Wife and the Heirs of their two bodies lawfully begotten and died by whose death the Reversion also of the said Mannors descended to the said William the Son whâ—rby he was seised therof accordingly and being so seised and also seised of the Mannor of Thoby in his Demesne as of Fee holden also of the Queen by Knights-servivice in chief and of certain Lands in Fobbing in the said County of Essex which Land in Fobbing with the Mannor of Hinton were the full third part of the value of all the Land of the said William the Son and he made his Will in writing wherby he devised to his said Wife Elizabeth his said Mannor of Thoby for her life in satisfaction of all her Joynture and Dower upon condition that if she take to any other Joynture that then the Devise to her shall be void and after her decease he devised that the said Mannor shall remain to Thomas his Son and the Heirs Males of his body and for default of such Issue the remainder to Thomas brother of the said William for his life the remainder to hir first second and third Son and to the Heirs Males of their bodies and so to every other Issue Male of his body and for default of such Issue the remainder to Leonard Barners his brother and to the Heirs Males of his body the remainder to Richard Barners and the Heirs Males of his body the remainder to the right Heirs of the Devisor William the Son dies having Issue Thomas his Son and Grisell his Daughter Wife to the said Thomas Baker the said Elizabeth by Paroll in pais moved her Estate in the said Mannor of Hinton and after this entred into the said Mannor of Thoby after which the said Elizabeth died and Thomas the Son and Thomas the Uncle died also without Issue Male after which the said Leonard took one Mary to Wife and died having Issue Anthony Barners after which the said Mary took the said John Butler to Husband and after this the said Anthony assigned to the said Mary the said Mannors of Thoby in allowance for all her Dower wherby the said John Butler as in the right of his Wife entred into the said Mannor of Thoby wherby the said Thomas Delves by the commandment of the said Baker entred into the said Close of which the Action is brought as in right oâ— the said Grisell And whether this entry were lawful or not was the question which was argued in the Court in the time of the late Lord Wray and he and Gawdy held strongly that the entry of the said Delves was lawfull but Clench and Fennor held alwaies the contrary wherupon it was adjourned into the Exchequer Chamber But they all agreed that the Waiver made by the said Elizabeth by parole in pais was a sufficient Waiver of her Estate in Hinton and the rather because of the Statute of 27 H 8. cap. 10. the words of which are That if the Joynture be made after the Marriage that then the Wife surviving her Husband may after his death refuse to take such Joynture And now it was moved by Tanfield that Iudgment ought to be given for the Plaintiff for by the Waiver of the Wife the Inheritance of Hinton is now to be said wholly in the Husband ab initio and therfore that with Fobbing being a whole third part of the whole Land which now is to be said to be left to discend to the Heir of the Devisor as to Thoby is good for the whole and if so then no part therof descends to Grisell and therfore the entry of the said Delves in her right is wrongfull Coke Attorney-general to the contrary for he said That it is to no purpose to consider what Estate the Devisor had in the Mannor of Hinton by reason of this Waiver made by his Wife Ex post facto after his death But we are to see what Estate the Devisor had in it in the view of the Law at the time of his death before the Waiver and according to it the Law shall adjudge that he had power to make his Devise by means of the Statute and at this time none can adjudge another Estate in him but joyntly with his wife of which Estate he had no power to make any disposition or to devise it or to leave it for the third part to his Heir for the Statute which is an explanatory Law in this point saies that he ought to be sole seised in such a case And further the Statute of 34 H. 8. at the end is that the Land which descends immediatly from the Devisor shall be taken for the third part and this Land did not descend immediatly for it survived to the Wife untill she waived it and therfore this Land is not to be taken for any third part which the Statute purposed to have been left to the Heir and therfore so much shall be taken from Thoby as with Fobbin shall be a third part to descend wherbâ— Grisell the Heir hath good right yet to part of Thoby and therfore the entry of the said Delves in her right by commandment of her husband not wronfull Periam chief Baron Clench Clark Walmsley and Fennor That now
by reason of the Waiver in the Devisor shall be sole seised ab initio for the said Elizabeth might have had Dower therof if she would as in the like case it is adjudged in 17 E. 3. 6. and therfore a sole Seisin in the Husband and the descent to the Heir in such a case upon the Waiver shall take away the entry of him who hath right to it And therfore the case now for the Mannor of Hinton is within the very letter of the Statute as well for the sole Seisin which was in the Devisor as for the immediate descent which was from the Devisor to his Heir and therfore remains to the Heir for a good third part of the Inheritance of the Devisor by the very letter of the Statute and if the Letter had not helped it yet it shall be helped by the purport and intent of the Statute which ought to be liberally and favourably construed for the benefit of the Subject who before the Statute of Vses might have disposed of his whole Land by reason of Vses by his Will and the Statute of 27 H. 8. excludes him therof and therfore the Statute of 32. 34 H. 8. are to be liberally expounded as to the Subject for the two parts and the rather because it appeareth by the preamble of the Statute of 32 H. 8. that it was made of the liberality of the King and because that by 34 H. 8. it appeareth that it was made to the intent that the Subject shall take the advantage and benefit purposed by the King in the former Statute by all which it appeareth as they said that the said Statutes shall be liberally expounded for the advantage of the Subject and for his benefit and not so strictly upon the letter of the Law as hath been moved and so they concluded that Iudgment ought to be given for the Plaintiff Popham and Anderson the two chief Iustices and all the other Iustices and Barons held the centrary and that Iudgment ought to be given against the Plaintiff and that by the very letter and purport of the Statutes of 32 34 H. 8. for they said they are to consider what Estate the Devisor hâ—d â—â— the Land at the time of his Devise made without regard to that which might happen by matter Ex post facto upon the Deed of another and if it had beâ—n demanded of any apprised in the Law at the time when the Will wâ—s made what Estate the Devisor then had in the Mannor of Hinton 〈◊〉 is so unlearned to say that he had other Estate in it then joyntly with his Wife And if so it follows that this Mannor was then out of the letter and intent of the Law for he was not then sole seised therof nor seised in coparcenary nor in common and by the words he should be sole seised in Fee-simple or seised in Fee-simple in coparcenary or in common It appeareth that the intent of the Statute was that he shall have full power of himself without the means or aid of another to dispose of the Land of which he is by the Statute to make disposition or to leave it to his Heir and this he hath not for the Mannor of Hinton here And further the words of 32 H. 8. are That the Devisor hath full power at his Will and pleasure to devise two parts of his Land so holden as here and this is to be intended of such Land of which he then had full power to make disposition â—nd this he could not then do for the Mannor of Hinton And further the words of 34 H. 8. are that the devision for the parts shall be made by the Devisor or Owner of the Land by his last Will in writing or otherwise in writing and in default therof by commission c. And can any say with reason that it was the intent of the Statute that he shall make the Devision of other Lands then of those of which he then had full power to devise or to leave to his heir without any future accident to help him or the mean of Anthony by matter Ex post facto It is cleer that reason cannot maintain it And the words following in the Act which are That the King shall take for his third part the Land which descended to the Heir of the â—state tail or of Fee-simple immediatly after the death of the Devisor much enforce the opinion on this side for it cannot be said upon the death before the Waiver that this Mannor of Hinton was immediatly descended ergo it ought not to be taken for the third part And further the words are If the Lands immediatly descended upon the death of the Devisor c. do not amount to a full third part that then the King make take into his hands so much of the other Lands of the Devisor as may make a full third part c. wherby it is cleer that in this case if the wife had not waived her Estate for ten years after the death of the Devisor that for all this time the Queen could not meddle with the Mannor of Hinton and therfore in the mean while she might well have so much of the Mannor of Thoby which might well have made a full third part to her and for so much which she took the Will was alwaies void which shall never be altered nor made good by any Waiver Ex post facto And although the Waiver of the Fame put the Inheritance entirely in the Devisor and in his Heir in relation to divers respects yet as to other respects he shâ—ll not be said in them with such relation and especially upon the Statute in which we now are to respect the power as it was in him at the time of his death before this future Contingent And by Popham If the exposition on the other side shall hold place upon the Statute perhaps a man shall not see by the space of six years or more after the death of a Devisor how his Devise shall work As a Feoffment in Fee is made to I. S. and a Feme Covert and their Heirs of 10 l. Land holden by Knights-service in Capite which I. S. hath 20 l. Land in fee so holden also I. S. makes a Devise of his 20 l. Land the Husband lives 60. years after none will or can deny but that for this time the Devise is not good for two parts now the Husband dies and the Wife waives the Estate made to her this puts the Inheritance therof in the Heir of I. S. with relation to divers respects but not to this respect to make the Will now good for the whole 20 l. Land which therfore was void for the third part therof for the Will which once was void by matter Ex post facto after the death of the Devisor cannot be made good And by him the descent in such a case is not such that it shall take away the entry of him who hath right because
it was not an immediate descent in Deed but upon the operation of Law which gave Wardship and the like but not to prejudice any third person And he said that although the Queen or other Lord upon eviction of the Land descended or the determination of the Estate therof may resort to Lands devised or assured and take a third part therof yet therby the Devise or Assurance remains effectuall against the Heir but this is by a speciall clause in the Statute of 34 H. 8. which gives it to them but no such remedy is given to the Devisee to help him if his part be abridged or evicted And the words are precise to wit If the part left or assigned to the King or to any Lord at any time during their Interest therin be evicted c. that they shall have so much oâ— the two parts residue as shall make a full third part of the remainder not evicted c. Wherby it appeareth that this is given only for the benefit of the Lords and not of the Heir nor of the Devisee fâ—r if after the Interest of the Queen or other Lord be determined this which was left he evicted from the Heir it shall not be helped against the devise but the Devise remains good to the Devisee against the Heir for the whole Land devised wherby it appeareth that it was the very purport and intent of the Statute that the Devise remain as it was at the time of the death of the Devisor without having regard to that which hapneth Ex post facto unlesse for this point helped by this speciall clause of the Statute and this is for the Lord and his Interest only and for no other And by him also cleerly the Statute which is an explanatory Law shall never be taken by equity in the precise point explained to impugne the point of explanation as here the Statute wills that the Estate of Inheritance comprised in the former Statute shall be explained to be Fee-simple it cannot now by any equity be as to the power to make a Devise which is meerly given by the authority of the Statute said to be of any other Estate then Fee-simple of which a Devise may be made And therfore if Land be given to another and his Heirs for the term of another mans life a Devise cannot be made of this because it is not an Inheritance in Fee-simple but only the limitation of a Free-hold And where the Statute saith having a sole Estate we cannot by any equity that it shall be taken of any joynt Estate as to make any disposition of that which she had in Ioynture and therupon the greater part resolved that Iudgment shall be given against the Plaintiff for the Defendants Southwell versus Ward 4. IN a second deliverance between Richard Southwell Esquire Plaintiff and Miles Ward Avowant by Demurrer upon the Avowry the Case appeared to be this That Iohn Prior of the Church of Saint Faiths in Horsham in the County of Norfolk was seised in his Demesne as of fee in the right of his said Priory of 8. Messuages 300. acres of Land 30. acres of Meadow 60. acres of Pasture and 200. acres of Wood with their Appurtenances in Horsham aforesaid And so seised the said Prior with the assent of his Covent by their Deed indented shewn forth bearing date the first day of Ianuary 13 E. 4. and by licence of the King aforesaid granted to William then the Master of the Hospitall of St. Giles in Norwich and to the Brothers of the same Hospitall and to their Successors 200. Fagots and 200. Focalls called Astle-wood yearly to be taken of all the Lands and Tenements of the said Prior and Covent in Horsham aforesaid by the Servants of the said Prior and Covent and their Successors yearly to be carried to the said Hospitall at the costs and expences of the said Prior and Covent and their Successors at the Feast of St. Michael or 20 s. of lawfull money for them at the election of the said Master and Brethren and their Successors to take yearly in the same Lands and Tenements in Horsham to the use of the poor and infirm persons there being or coming So that if it happen the said Fagots and Focalls or the said 20 â— for them to the said Master and Freres in form aforesaid to be arrear in alâ—o part c. then they may distrain in the said Lands and Tenements and the Distresse detain until they be fully satisfied of the said Fagots and Focals or of the said 20 s. for them as is aforesaid with this Proviso further That if at any one or more times the said Master and Brethren have chosen to have the Fagots and Focals yet at any other time they make the 20 s. for them and although they have taken the 20 s. for them once or oftner yet at any other time they may take the Fagots and Focals themselves and that they may so vary tâ—ties quâ—ties and dâ—strain for them accordingly reasonable notice being given of their Election in form aforesaid And the said Master and Brethren granted by the same Deed to the said Prior and Covent and their Successors that they or others sufficiently warranted by them would give sufficient notice of their election yearly the first Sunday of April in the Church of the said Hospital to some Officer of the said Prior and Covent and their Successors if they send any thither for this cause By force of which Grant the said Master and Brethren were seised of the said yearly rent of the said 200. Fagots and 200. Facals called Astlewood accordingly and so being seised they by their sufficient Writing enrolled of Record in the Chancery in the first year of the late King Ed. 6. gave and granted to the same King the said Hospitall all the Lands Tenements and Hereditaments of the said Hospitall To have and to hold to him and his Heirs and Successors for ever wherby the said King was therof and of the said annuall Rent seised accordingly and so seised the 7. day of May in the same year the said King Edw. by his Letters Patents bearing date the same day and year granted the said Hospitall and the rent of the said Fagots and Focals and other the Premisses to the Major Sheriff Citizens and Commons of the City of Norwich and to their Successors for ever and for 1600. Fagots and 1600. Focals of the said annuall rent of 200. Fagots and 200. Focals being arrear at the Feast of S. Michael the Arch-angel 23 Eliz. the said Ward took the Distresse and made Conusance as Bailiff to the said Major Sheriff c. And it was moved that the Avowry was not good first because it being matter of Election which was granted to the Master and Brethren and their Successors to wit the Fuell or the 20 s. it doth not appear that they ever made any election of the one or the other and untill it appeareth that they have
precedent to it which not being done the Estate of Edmund never hapned to be and therfore he who cometh in under a Discontinuance made by the said William Cocksey after the death of Martin and Giles without Issue notwithstanding the Remitter of the said Alice in the case is to have the Land against those who come in by the said Edmund and upon this point only Iudgment was given accordingly in the Kings Bench. Grenningham versus the Executors of Heydon 4. IN Debt upon an Obligation of 200. marks by Richard Grenningham Plaintiff against the Executors of one Ralph Heydon Defendants the case appeared to be this upon Demurrer The said Heydon was bound to the Plaintiff in 200. marks the Condition wherof recites that wheras the said Heydon had received of the said Grenningham 76 l. 6 s 8 d. before the date of the said Obligation of 200. marks in payment and satisfaction of certain Obligations and Bills of debt remaining in the hands of the said Heydon and specified in the Condition what they were in certain and the which said Bills Obligations the said Heydon is to deliver or cause to be delivered to the said Grenningham his heirs or assigns before the Feast of S. Michael next ensuing the date of the said Obligation or otherwise the said Heydon his Executors Administrators or Assigns or some of them before the same Feast shall make or cause to be made and delivered to the said Plaintiff his Heirs and Assigns such good and sufficient Acquittances for the payment of the said summs of money formerly mentioned as the said Plaintiff his Heirs Executors or Assigns shall devise or cause to be devised by the Counsel of the said Plaintiff his Heirs or Assigns before the Feast without fraud or deceit that then the said Obligation shall be void c. And before the Feast the said Plaintiff did not devise any acquittance Whether now the Obligation be saved by the Disjunctive without delivering the Obligations and Bills before named before the Feast of S. Michael Rot. 36 37. Eton and Monney versus Laughter 5. IN Debt upon an Obligation of 400 l. by Thomas Eton and Roger See this Case Coke lib. 5. 21. by the name of Laughters case Monney Plaintiff against Thomas Laughter Defendant who was bound together with one Richard Rainford to the said Plaintiffs the Condition of which Odligation was That if the said Richard Rainford after marriage had between him and Jane Gilman Widow together with the said Jane alienate in Fee or Fee-tail all that great Messuage of the said Jane in London in the Tenure of William Fitz Williams Esquire if then the said Richard Rainford in his life time purchase to the said Iane her Heirs and Assigns Lands and Tenements of good Right and Title and of as good value as the money raised upon the alienanation of the said Messuage amounts unto or leave to the said Iane after his decease as Executrix or by Legacy or other good assurance so much money as he shall receive or have upon the said Sale that then the Obligation shall be void after which the said Richard Rainford married with the said Jane and the said Richard and Jane sold the said Messuage in Fee by Fine for 320 l. received by the said Richard Rainford after which the said Iane died no Lands being purchased to the said Iane by the said Richard and the said Richard yet living Michaelmas Term 37 38. Eliz. Sawyer versus Hardy 1. IN an Ejectione firmae by Christopher Sawyer Plaintiff against Edmund Hardy Defendant for a Messuage in S. Martins upon a Demurrer the case was this A Lease was made of the said Messuage to one Margaret Sawyer for 40. years upon Condition that if the said Margaret should so long continue a Widow she should dwell and stay in the same Messuage the said Margaret continued a Widow and dwelt in the same house all her life and died during the said Term of 40. years making the Plaintiff her Executor and by award the Plaintiff had Judgment to recover For by Popham Gawdy and Clench this now was no Condition nor Limitation for it hath no certain conclusion upon the that if to wit that then the Term shall continue or that she shall pay so much or otherwise what the conclusion shall be none can imagine As if such a Lease be made upon condition that if the Lessee does such a thing without other conclusion it is a good Lease for 40. years for none can imagine what the conclusion shall be in such a case or that then the Lease shal be void or that he shall re-enter or that the Lessee shall forfeit so much or what shall happen upon it for which incertainty it shall be taken as a void Clause But by Popham if it had been Sub conditione si tamdiu vixerit it had been good to determine the Lease but it is otherwise of the word quod si for the incertainty as before And they all agreed that if the Lease had been for 40. years Si tamdiu sols viveret inhabitaret in eodem Messuagio that the Lease had been determined by her marriage or death In the same manner as if it had been Si tam diu vixerit And so in truth had been the case if it had been well pleaded but by pleading the advantage therof was lost and the truth not disclosed But by Popham If a Lease be made for 40. years if he shall dwell in the same for his life there it is good for 40. years upon performance of the Condition the diversity appeareth to wit where it is if he shall dwell there during the Term and where it is if he shall inhabit there during his life Goodale versus Wyat. 2. IN an Ejectione firmae by Cuthbert Goodale Plaintif against John Wyat See this Case Coke lib. 5. fol. 95 96. by the name of Goodales case Defendant for a Meadow in Aylesbury in the County of Buck. called Diggelmore upon a speciall Verdict the case was this Sir Iohn Packington Knight enfeoffed therof one Ralph Woodliff to have and to hold to him and his Heirs upon condition that if the said Sir Iohn within a year after the death of the said Ralph pay to the Heirs Executors or Administrators of the said Ralph the summ of a 100. marks of lawfull money that then the said Feoffment and Seisin made therupon shall be void Ralph Woodliff made a Feoment over to others therof and died intestate and Administration was committed to Anne his Wife and Drew Woodliff his Son and Heir who gave a Warrant of Attorney to Thomas Goodale then seised of the said Meadow by mean conveyances for the receit of the said 100. marks with Covenant that none of them shall do any act or thing that shall be preâ—udiciall or hurtfull to the said Thomas Goodale for the receiving and enjoying of the said summ after which it was certified to the said Sir Iohn Packington by
it shall not be taken by intendment that the Messuages had such a Curtilage to it if it be not specially named Fennors Case 5. IN Trespasse brought by Fennor in the common Bench against for breaking his Close in c. the Defendant pleads a Bar at large to make the Plaintiff assign the place in certain where he supposeth the Trespasse to be done the Plaintiff therupon alledgeth that the place where he complaineth is such c. and sheweth in certain another then that in which the Defendant justifies the Defendant avers that the one and the other are all one and known by the one name and the other and therupon the Plaintiff demurs and adjudged there for the Plaintiff because that in such a case upon such a speciall assignment it shall be taken meerly another then that in which the Defendant justifies in as much as the Plaintiff in such a case cannot maintain it upon his evidence given if the Defendant had pleaded not guilty to this new Assignment that the Trespasse was done in the place in which the Defendant justifies although it be known by the one and the other name and that the Plaintiff hath good Title to it because that by his speciall Assignment saying that it is another then that in which the Defendant justifies he shall never after say that it is the same in this Plea for it is meer contrary to his speciall Assignment And upon this a Writ of Error was brought in the Kings Bench and the Iudgment was there affirmed this Term for the same reason Quod nota Scot versus Sir Anthony Mainy 6. IN Debt upon an Obligation of 200 l. brought by John Scot Gent. against Sir Anthony Mainy Knight the Condition wherof being to perform the Covenant comprised in an Indenture of Demise made by the said Sir Anthony to the said Plaintiff of his Capitall Messuage in Holden with the Lands to it belonging c. amongst which Covenants one was that wheras by the same Indenture he had demised it to him for 21. years that the said Sir Anthony covenanted with the said John Scot that the said Sir Anthony from time to time during the life of the said Sir Anthony upon the surrender of this Demise or any other Demise hereafter to be made by the said Sir Anthony of the said Messuages and Lands and to be made by the said John Scot his Executors or Administrators and upon a new Lease to be made ready ingrossed to be sealed and offered by the said John Scot his Executors or Administrators to the said Sir Anthony for the like tearm and number of years in the aforesaid Indenture comprised for the same Rent c. to seal and deliver to the said John Scot his Executors and Administrators And the said Sir Anthony as to this Covenant pleaded did not surrender nor offer to surrender to him the said Demise nor offer to him any new Demise of the Premisses ready engrossed for to seal it for the like Term c. as it is in this Covenant And for the other Covenants he pleads performance of all To which the Plaintiff replies that the said Sir Anthony after the Obligation and before the Action brought had rendred the said Messuages and Lands by Fine to one Walter Savage and William Sheldon their Executors and Assigns for eighty years from the Feast of Easter next before the Fine which was Pasch 36 Eliz. wherby he said that the said Sir Anthony had disabled himself to renew his Lease according to the Covenant upon which it was demurred in the Commen Bench and the Iudgment given for the Plaintiff as appeareth Trin. 37. Eliz. Rot. 2573. And upon this Iudgment a Writ of Error was brought in the Kings Bench and agreed this Term. And it was moved that the Iudgment given was erroneous in as much as the first act was to be done by John Scot before the new Lease was to be made to wit the surrender of the former Lease and the drawing of the new one ought to have been done by the Plaintiff which not being done on his part the said Sir Anthony is not bound to make the new Lease And also it was moved that as the case is here the said John Scot might surrender to the Defendant notwithstanding the intervening of this Lease between the Lease of the Plaintiff and the Inheritance of the Defendant as if a man make a Lease for years in possession and afterwards make another Lease to a stranger to begin after the end of the former Lease this shall not hinder but that the first Lease may be surrendred to him who was the Lessor notwithstanding the said Term intervening To which it was answered by the Court that the Plaintiff here need not to make any offer of the surrender of his Term to the said Sir Anthony in as much as the said Sir Anthony hath disabled himself to take the Surrender or to take the Lease according to the purport of the Condition and by this disabling of himself the Obligation is forfeited Come per 44 E. 3. 8. and by Littleton also If a man make a Feoffment upon condition to re-enfeoff him this is not to be done untill request therof be made by the Feoffor yet if in the mean time the Feoffee suffer a fained recovery of the Land grant a Rent charge acknowledgeth a Statute taketh a Wife or the like the Feoffor may re-enter without request made to re-enfeoff him and the reason is because that by any of these the Feoffee hath disabled himself to perform the Condition in the same plight as he might have done at the time of the Feoffment in the same manner here for by this render by the Fine the Reversion passe in right so that the Termor in possession attorning to it they shall have the Rent reserved upon the first Lease and therfore the Plaintiff cannot now surrender to the said Sir Anthony but to the Grantees of the Reversion and therfore there shall be no prejudice to the Plaintiff because the Defendant was the cause of disabling the Plaintiff to make the Surrender to him And suppose it be but a Term to begin at a day to come yet by this the Obligation is forfeited because the Obligor hath therby disabled himself to perform the Condition in such a plight as he might have done it when the Obligation was made wherby the Obligation is presently forfeited albeit the Plaintiff never surrender nor offer to do it And therfore the Iudgment there was affirmed Mounson versus West 7. IN an Assise brought in the County of Lincoln before Gawdy and Owen by Thomas Mounson Esquire Demandant against Robert West Tenant for Lands in Sturton Juxta Stu. The Defendant West pleaded Nul Tenant del Frank-tenant named in the Writ and if that be not found then Nul tort nul Disseisin And the Assise found that the said Defendant was Tenant of the Tenements now in Plaint and put in view to the Recognitors of
Anglice Copie des except according to any custom of the said Mannor of Yeatminster and that the Obligation was made for the payment of the same Rent reserved by the said Articles and demands Iudgment c. wherupon the Plaintiff demurred in the Common Bench and there Iudgment was given that the Plaintiff should recover his Debt and Damages as appeareth there Mich. 36 37. Eliz. Rot. 312. upon which a Writ of Error was brought in the Kings Bench and there moved that the Iudgment was erroneous in as much as upon the matter he ought to have been barred of his Action for if an Action of Debt had been brought upon the Demise by the Articles the Defendant might have pleaded as here and the Plaintiff should be cleerly barred As if a man be bound to make an Estate or to assure to another all the Lands which he hath by descent from his Father or all the Lands which he hath by purchase from such a one or the like And of this opinion Gawdy was saying in as much as the Obligation is that he shall be paid according to the true intent of the Articles the intent of them is not that the Rent shall be paid if any Land be not passed by them for it should be paid as by 22 H. 6. if a man be bound to pay a Rent which is reserved upon a Lease made to him he ought to pay it at his peril But if it be to pay it accordingly to the Lease there he said it is not payable but upon the Bond and is to be paid as a Rent And if the Land be evicted in the interim before the day of payment the Obligor shall help himself by pleading of it upon such an Obligation to discharge the Bond so here But it seemed to Popham that the Iudgment was well given and yet he agreed the Cases that were put but he said there was a diversity where the Obligation goes in the generality and where it tends to a speciality for as by 2 E. 4. If a man be bound to be Non-suit in all Actions which he hath against such a one or to assure to another all his Lands in Dale he may say that he hath not any Suit or that he hath no Land in Dale But if it be that he shall be Non-suit in a Formedon depending or to enfeoff him of White acre there it is no plea because he refers to a special point And by 18 E. 4. If a man be bound to another to pay him 10 l. for which a stranger is bound to the said Obligee it is no plea for him to say that the stranger is not bound to pay him 10 l. for when the Condition refers to such a speciall matter this cannot be denied of him who is bound And therfore in this case the Defendant cannot say that there were not any such Articles contrary to that which is specially comprised in the Condition as by 28 H. 6. A man was bound to perform the Covenants comprised in a certain Indenture of Covenants he shall not say that there was not any such Indenture because it resorts to a speciall So I think if a man be bound to pay the Rent of 10 l. a year reserved upon an Indenture of Demise made of Lands in D. payable at such a Feast he shall not say against it that there was no such Demise made nor no such Rent reserved upon the Demise but is estopped of the one and the other And in Hill 3. Eliz. A man was bound thâ—t he shall pay to A. or the Obligee all such summs of mony as T. S. deceased stands bound to pay by his Obligation to the said A. and of one R. P. to the behoof of the Children of such a one according to the Will of the said party and in Debt upon this Obligation he saith that the said T. S. was never bound by any such Writing Obligatory to the said A. and R. P c. to pay c. Pro usu filiorum c. as in the Condition and per Curiam adjudged no good Bar because he is estopped to deny the speciall matter which is matter of Writing and not a bare matter in Deed. Kirton versus Hoxton and others 10. IN an Appeal of Mayhem brought by Kirton Plaintiff against Appeal of Mayhem Rob. Hoxton Esq and divers other Defen the one of the Defen plead Nul tiel in rerum natura as another of the Appellees and if it be not found then as to the Felony and Mayhem not guilty Agreed by the whole Court that such a manner of pleading is not to be suffered in an Appeal of Mayhem because no life is put in danger by the suit And yet it was objected that there are presidents that such form of pleading hath been admitted in Appeals of Mayhem But the Court had respect to it that the reason in all the Books of Law in which it hath been admitted in an Appeal of death and the like is that it stands in Favorem vitae and therfore it is admitted to be good or otherwise by the Books it shall not be admitted to be so for the doublenesse of it But no life is to be put in â—eâ—pardy in this case and therfore such a plea shall not be admitted but the Not guilty shall stand by which the other plea is waived Hillary Term 38 Eliz. Henry Earl of Pembrook versus Sir Henry Backley IN an Action upon the Case between Henry Earl of Pembrook Plaintiff See this Case Coke lib 5. 76. a. and Sir Henry Backley Knight Defendant the case upon the pleading appeareth to be thus The said Earl was seised in his Demesn as of Fee of the Mannor of Stocktrift in the County of Somerset to which Mannor the Office of the custody of the Forest of Selwood in the same County belongeth and also that there was before time of memory an Office within the same Forest called the Lievtenant-ship or Custody of the said Forest belonging to the said Mannor of which also the said Earl was seised in his Demesn as of Fee And that there was one part of the said Forest called the West part of the said Forest in which there were two Walks or Bayliwicks the one called Staverdale walk and the other Brewick walk And that the said Lievtenant had the charge of the Deer and the disposition and appointment of the Keepers of the said Forest And that the said Earl being so seised by his Writing bearing date 5. Novemb. 12. Eliz. reciting that his Father had granted the Office of Lievtenant-ship and Deputy-ship of the said West part of the said Forest Cum vadiis c. quando acciderit and the Keeper-ship of Brewick-walk aforesaid to the said Sir Maurice Barkley Knight and the Heirs Males of his body and instituted and ordained him and the Heirs Males of his body Lievtenant and Deputy therof to the said Earl and his Heirs confirmed the Grant aforesaid And further by the
given for the Defendant The same Term in the same Court. Laurking and Wildes Case THe Rector of the Church of livelled in the spirituall Court for the Tithes of a riding Nag where the case was That a man let his Land reserving the running of a Horse at some time when he had occasion Tithes for a riding Nag to use him there The Defendant shewed this matter in the Court by his Counsell and prayed a Prohibition and avers that for the same Land in which the Horse went he paid Tithes And by the Court nigh London a man will take a 100. or 200. Horses to Grasse now he shall pay Tithes for them or otherwise the parson shall be defeated But in this case if the Defendant alledge and prove that it was a Nag for labour and not for profit a Prohibition lies The same Term in the same Court. Havergall versus Hare IN an Ejectione firmae brought by Havergal against Hare the Case was thus Afterwards fol 55. A Rent of 20 l. per annum was granted out of Green acre to one and his Heirs to be paid at Michaelmas and the Annunciation of our Lady by equall portions and the Grantor covenants that if the Rent of 20 l. be arrear by the space of twenty daies that the Grantee may distâ—ain and that if there be not sufficient distresse upon the Land or iâ— there be a Rescous Replevin or Pound-breach that then it shall be lawfull for the Grantee and his Heirs to enter and retain the Land to them and their Heirs untill the 20 l. be paid 10 l. for one half years Rent was in arrear and for it an entry was made Mountague chief Iustice and Doderidge Iustice there can be no entry made when 10 l. only is behind for the words of the Deed are that if the Rent of 20 l. be behind that the Grantee and his Heirs may enter and if he shall enter now he shall retain the Land for ever for the 20 l. shall never be paid Crook and Haughton Iustices contrary for if 10 l. be arrear the Rent of 20 l. is arrear for Haughton said In an Assise of Rent of 40 l. where part is arrear yet he ought to bring his Assise for the whole Rent of 40 l. for the Writ ought to agree with the Deed. Doderidge agreed with him in the case of an Assise but not in the principall point And for the second point it was agreed by them all that upon the entry of the Grantee he shall have a Fee-simple determinable admitting the entry for the 10 l. to be good The same Term in the same Court and it is entred 14 Jac. Rot. 1484. Robinson versus Walter RObinson brought an Action of Trover and Conversion against Walter and upon the whole matter the case appeared to be this A Stranger took the horse of the Plaintiff and sent him to a common Inn and there he remained for the space of half a year at which time the Plaintiff had notice where his Horse was and therupon he demanded him of the Inn-keeper who answered that a person unknown left the Horse with him and said that he would not deliver the Hoâ—se to the Plaintiff unlesse he would pay for his meat which came to 3 l. 10 s. for all the time and also would prove that it was his Horse upon which the Plaintiff demurred in An Inn-keeper may detain a Horse untill he be satisfied for meat albeit he be left by a stranger Law And it was resolved by Mountague chief Iustice Crook and Doderidge Iustices Haughton Iustice dissenting that the Defendants plea was good for the Inn-keeper was compellable to keep the Horse and not bound at his peril to take notice of the Ownder of the Horse And by the custom of Lond. if a horse be brought to a common Inn wher he hath as it is commonly said eaten out his head it is lawfull for the Inn-keeper to sell him which case of the custom implies this case And there is a difference where the Law compels a man to do a thing and where not As if the Lievtenant of the Tower brings an Action of debt for Dyet against one who was his Prisoner in this case the Defendant cannot wage his Law because the Law compels the Lievtenant to give Victuals to his Prisoner otherwise if another man brings an Action of debt for Dyet and in the case at the Bar the Inn-keeper was compellable And Doderidge said that if the Law were as the Plaintiff would have it it were a pretty trick for one who wants a keeping for his Horse And Mich. 6 â—ac in the Kings Bench between Harlo and Ward the like was resolved as was cited by Barkesdels of Counsell with the Defendant Mich. 14. Jac. In the Kings Bench. Rawlinson versus Green A Copyholder surrendred out of Court according to the custom of the Mannor which at the next Court was presented and entry therof made by the Steward Scilicet Compertum est per homagium c. but no admittance Afterwards Cestuy que use surrenders before admittance and the first Copyholder surrenders to the Plaintiff And in this case there were two questions 1. Whether he may surrender before admittance 2. Who shall have the Land whether the first Copyholder or the Lord Haughton Iustice held that he could not surrender before admittance and the entry of the surrender doth not make an admittance for this being the A â—urâ—ender of Copyhold cannot surrender before admittance sole act of the Steward shall not bind the Lord and it is not like to the usuall foâ—m of an admittance for that is Dat Domino de fine fecit fiâ—elitatem admissus est inde tenens Doderidge Iustice agreed and said that in Hare and Brickleys case the admittance of a Copyholder was compared to the induction to a Benefice which gives the possession Hillary 14. Jac. In the Kings Bench. Sir John Pools Case Three Executors brought an Action of Debt and one only declared and they were ready for a triall in the Country and now it was moved that the Declaration might be amended and the names of the other Executors incerted but per Curiam this cannot be without the assent of the parties Pasch 15. Iac. In the Kings Bench. Cooper versus Smiths AN Action upon the Case was brought for these words viz Waterman Action for these words Thou hast killed thy Masteâ—s Cook and thou Innuende the Plaintiff hast killed thy Masters Cook Innuende c. and I will bring thee in question for thy life And after Verdict for the Plaintiff it was moved in Arrest of Iudgment by the Counsell of the Defendant that the words were not actionable for the incertainty inasmuch as it doth not appear who was his Master nor that his Master had a Cook Mountague chief Iustice said that the words were actionable and albeit Inâ—uendo cannot maâ—e a thing that is uncertain certain an Innuendo cannot make a
of the Bailment But Haughton being contra therfore Curia advisare vult The same Term in the same Court The Earl of Shrewsburies Case VPon a Verdict a rule was given to have Iudgment and this was upon the Thursday and upon Sâ—â—uâ—day after thâ— party that was Plaintiff died and it was moved to have a Writ of Error because it was said that the party died before Iudgment in as much as of course aâ—ter the Verdict and the â—ule given for Iudgment there are four daies given to speak in Arrest In the diâ—cretion of the chief â—ustice to allow a Writ of Error The entry of a Iudgment how it shall relate of Iudgment â—â—o so as Yelverton Attorney-generall said he died before Iudgment absolutely given and he moved the Court to have a Supersedeas And it was agreed that it wâ—s in the discretion of the chief Iustice Ex officio to allow a Writ of Error but because it was a cause of great consequence he took the advice of the Court and it was agreed that a Writ of Error was a Supersedeas in it self yet it is good to have a Supersedeas also and if the Writ of Error had been allowed the Court could not deny the party a Supersedeas But because the Writ of Error was not allowed and also because no Error appeared to the Court for where Iudgment is entred this shall relate to the time of the rule given It was resolved that no Writ of Error should be allowed nor any Supersedeas granted The same Term in the same Court. Rones Case IN an Ejectione firmae brought by the Lessee of Rone Incumbent of the Church of Dallinghoe in Com. Suff. It was found by speciall Verdict that the King was the true Patron and that Wingfeild entred a Caveat in vita Incumbentis he then lying in Extremis scilicet Caveat Episcopus ne quis admittatur c. Nisi Convocatus the said Wingfeild the Incumbent dies Naunton a stranger presents one Morgan who is admitted and instituted afterwards the said Wingfeild presents one Glover who is instituted and inducted and afterwards the said Rone procure a presentation from the King who was instituted and inducted and then it came in question in the Spirituall Court who had the best right and there sentence was given that the first institution was Irrita vacua inanis by reason of the Caveat then the Church being full of the second Incumbent the King was put out of possession and so his presentment void But it was adjudged and resolved by all the Court for Rone for 1. It was resolved that this Caveat was void because it was in the life of the Incumbent 2. The Church upon the Institution of Morgan was full against all but the King and so agreed many times in the Books and then the presentation of Glover was void by reason of the super-institution and therfore no obstacle in the way to hinder the presentation of Rone and therfore Rone had good right And if the second institution be void the sentence cannot make it good for the Spirituall Court ought to take notice of the Common Law which saith that Ecclesia est plena consulta upon the institution and the person hath therby Curam animarum And as Doderidge Iustice said he hath by it Officium but Beneficium comes by the Induction And although by the Spirituall Law the institution may be disannulled by sentence yet as Linwood saith Aliter est in Anglia who is an Author very well approved of amongst the Civilians And Doderidge put a case out of Doctor and Studient the second Book If a man devise a summ of money to be paid to I. S. when he cometh to full age and afterwards he sues for it in the Spirituall Court they ought to take notice of the time of full age as it is used by the Common Law to wit 21. and not of the time of full age as it is used amongst them to wit 25. So in this case at the Bar for when these two Laws met together the Common Law ought to be preferred And when the Parson hath institution the Arch-deacon ought to give him Induction And see Dyer 293. Bedingfeilds case cited by Haughton to accord with this case The same Term in the same Court Taylors Case JOhn Taylor a Citizen and Alderman of Glocester was put out of his place by the Common Counsel of the City for some misdemeanor and he sued out a Writ of Restitution and for that the cause of his displacing was not sufficient Writ of Restitution for an Aldermans place his Writ was allowed by reason wherof the other Alderman who was elected in his place was to be removed for the number of Aldermen was full But Hazard another Alderman to the end that the new elect who now was Major should not be displaced was contented to surrender his place in consideration of 10 l. a year granted to him by the Corporation for term of his life with which the Wife of Hazard was not content and therfore he would have left his agreement And therupon the question was whether he might surrender or not And it was said by Coventree Sollicitor that he cannot and he cited Middlecots case an Alderman of B. where the opinion of the Court was 13 Eliz. that he cannot surrender Doderidge perhaps they would not except his surrender Mountague said that Alderman Martin of London gave up his Aldermans place and without question any man in such a case may surrender or leave his place to which the Court agreed and therfore it was ordered that Hazard shall have his 10 l. a year and that he shall stand to his first agreement The same Term in the same Court. May and Samuels Case AN action of Debt was brought upon an Obligation the Condition wherof was to stand to the Arbitrement of John S. concerning all matters between them to the time of the submission who arbitrates that the one shall pay 20 s. and that the other shall make a generall release to him of all matters from the beginning of the world to the time of the arbitrement Arbitrement Haughton Iustice this is an arbitrement but of one part and therfore void but if it had been only that the one shall pay 20 s. it may be good for it shall be intended that the other by reasonable construction shall be discharged or acquitted to which Crook and Doderidge Iustices agreed But by Mountague chief Iustice it ought to be specified yet they all agreed and so it was adjudged that this was a void arbitrement for it was of the one part only to wit that he shall pay 20 s. for the other part for the release to the time of the arbitrement was not within the submission so if the arbitrement had been that the one shall make a release or shall be discharged or acquitted without speaking of the other this being on the one part only is a void arbitrement vide
grants over the Reversion the first Lessee dies and the Grantee of the Reversion brings a Writ of Covenant against his Executors In which case there were two points 1. Whether these words And the said Lessee his Executors Administrators and Assigns shall from time to time c. make a Covenant or Whether Covenant lies against the Executor of a Lessee after assignment no. 2. Whether as this case is it will lye against the Executors of the Lessee As to the first point it was agreed that it is a Covenant for being by Indenture it is the words of both parties and it is more strong being in the case of the Queen Haughton laid that 25 H. 8. Tit. Covenant Covenant will lye against a Lessee after assignment but Debt lyeth not for Rent after the Lessee hath accepted the Assignee for his Tenant and therfore it seems that by the expresse words of the Covenant that the Action lies Doderidge Iustice contra for between the Queen and the Lessee there is privity of Contract and also of Estate so that the Queen her Heirs and Successors might have had an action against the Lessee or his Executors upon the privity of Contract and where the Lessee â—ssigns over the privity of Contract remains but the privity of Estate is gone to the Assignee and now when the Queen grants over the Reversion the privity of Contract is utterly determined wherby the Action of Covenant cannot be maintained against the first Lessee or his Executors who are more remote to which Mountague chief Iustice agreed see 2 H. 4. 6. 6. H. 4. 1. and Co. lib. 3. Walkers case and the Iudgments there cited Et adjournator The same Term in the same Court. Bennet versus Westbeck THe Case was thus Tenant for life Remainder for life Reversion in Fee he in Remainder for life gives his Deed of Demise with the assent of the first Tenant for life upon the Land to a stranger in the absence of the Lessor and said that he surrendred to him in Reversion And it was said that this Surrender being without Deed was not good to him who was absent and to confirm it the case was put out of 27 H. 8. Where Mountague chief Iustice said that if a Feoffment be made to four and Livery is made to one in the absence of the other but in name of all if it be by Deed this shall enure to all but if it be without Deed then only to him to whom the Livery was made So here this Surrender doth not enure to him in the Reversion being absent Whether Tenant for life in Remainder may surrender without Deed. But Non aliocatur for the sole point now in question was whether he in Remainder for life can surrender without Deed and as to it this Rule was taken viz. That that which cannot commence without Deed cannot be granted without Deed as a Rent Reversion common Advowson c. as 19 H. 6. 33. 14 H 7. 3. 1 2. Ph. Mar. 110. 22. Ass Pl. 16. But in this case this took effect by Livery and not by Deed and therfore might be determined without Deed. Mountague and Haughton agreed that it might be surrendred without Deed because it had its beginning without Deed but it could not be granted over without Deed. Doderidge Iustice said that it could not be surrendred without Deed but he said that Tenant in possession may or Tenant for life and he in Remainder together may surrender to him in the Reversion but this shall innure as two severall Surrenders first of him in Remainder to the Tenant for life and then by the Tenant for life to him in the Reversion Crook Iustice agreed with Doderidge for the Estate of him in Possession is an Estoppell to the Surrender so that it could not be surrendred without Deed. The same Term in the same Court. Thurman versus Cooper IN an Ejectione firmae brought by John Thurman against William Cooper upon the whole matter the case was thus Lands were given to a man and woman who afterwards inter-marry and to their Heirs and Assigns Habendum to them and to the Heirs of their two bodies engendered the remainder to them and the Survivor of them with warranty to them and their Heirs and Assigns for ever And the question was what Estate this shall be whether an Estate-tail or Fee-simple or a Fee-tail with a simple Expectant And it was said that this shall be an Estate-tail only for the Habendum qualifies the generall words precedent and with this agrees Perkins 35. b. and Co. lib. 8. 154. b. Althams case But it was answered and resolved by the whole Court that this is a Fee-tail with a Fee-simple expectant and they observed these Rules 1. That every Deed shall be taken most strong against him that made it 2. That every Deed shall be construed according to the intent of the maker so that all the parts may be effectuall if they can stand together with the Rules of Law 40 E. 3. 5 Percy saith that it is a Fee-simple 21 H. 6. 7. that it is an Estate-tail with a Fee-simple expectant Dyer 160. and Plow Paramore and Yardleys case the Law shall make an order of words where there is no order put by the parties and the words after the Remainder limited are Tenendum de Capitalibus Dominis feodi c. and therfore it ought to be a Fee-simple for if it were a Fee-tail he should hold of the Donor as it is in Co. lib. 6. Sir John Molins case and other Books And although the Warranty cannot inlarge an Estate yet this expresses his intent to passe a Fee-simple and the Law shall make a construction that the Fee-tail shall precede upon which the Fee-simple shall be expectant according to that which is before said in Paramore and Yardleys case Doderidge If the Habendum had been to a stranger the Premisses had been but a Tail as 7 H. 4. for otherwise the Habendum shall be void But if Land be given to one and his Heirs viz. In Tail or if the said Donce dye without Issue of his body this had been but an Estate-tail only because it immediatly checks and confirms the Premisses to which Haughton agreed Et adjournator The same Term in the same Court. Powels Case POwel an Vtter-Barister of the Temple and also Town-Clark of Plimoth brought an Action upon the Case against for these Words That he was a Puritan Knave a precise Knave a bribing Knave a corrupted Knave c. words The Defendant supposing that the Plaintiff had wronged him in the Court of Plimoth said that he was a Puritan Knave a precise Knave a bribing Knave a corrupted Knave and that he would make him answer for that which he had done in another place And after Verdict for the Plaintiff it was now moved in Arrest of Iudgment that the words were not actionable because he doth not scandalize him in his Profession by which he acquires his
case who agreed that the wife shall not have it The same Term in the same Court. Dennis versus Sir Arthur Mannaring and others IN the great case between Gabriel Dennis Plaintiff in Trespasse against Sir Arthur Mannaring and Brimblecomb and others the Verdict was found for the Defendants And now it was moved in Arrest of Iudgment for the Plaintiff because no Bail was entred for Brimblecomb one of the Defendants A Verdict is given in B â— before any bail entred not good for every Defendant is supposed in Custodia Marescalli and in this case the Venire facias is awarded to try the Issue between the Plaintiff and Defendants where one of the Defendants is no party in Court And Serjeant More put the case of the Lord Chandoys and Sculler and other Defendants where the Iudgment in such a case was resolved to be erroneous Mountague we ought Discernere per legem quid sit justum and here Brimblecomb being no party in Court no Verdict could be given Doderidge I have seen in this Court where upon a Writ of Error brought in such a case we have compelled him to put in his Bail because he should not take advantage of his own wrong and folly But because that here no fraud appeared to be in the Plaintiff he shall not be bound to stand to the Verdict Haughton agreed but Crook seemed to the contrary But it was agreed that if Brimblecomb had appeared at the Suit of any other the same Term it had been sufficient And these Books were cited to be in the point 32 H. 6. 2. 8 E. 4. 5. 21 H. 6. 10. The same Term in the same Court Hide versus Whistler WIlliam Hide made a Lease for years of certain Lands to Whistler excepting Exception of all Wood under-wood Coppices and Hedgerows to the Lessor all his Wood and under-wood Coppices and Hedgerows and in a Replevin the question was whether the Soil shall passe ther by for the Lessee put his Beasts into a Coppice and the Lessor distrained them wherupon c. And the words of the exception were further standing growing and being in and upon the Premisses And the Lessee covenanted to make Fences but if the Lessor made new Coppices that the Lessee should net make Fences about them And it was said that a Coppice signifies a parcell of Land fenced for the safegard of young Trees And it was said for A Coppice what it is the Plaintiff that Premisses are Pre dimissa and by these words growing and being in the Premisses it shall be intended that the Soil did not passe for it is pre-demised But it was resolved that the Soil it self was excepted by the exception of the Wood and Coppice 14 H. 8. 1. The Bishop of Londons case Co. lib. 5. Ives case and lib. 11. Lyfords case And by the reserving of a Coppice the Soil it self is reserved for by Mountague that which is reserved is not demised and so the Distresse well taken Crook agreed and he said the difference was good between Wood and Trees for by the excepting of Wood the Soil it self is excepted otherwise of Trees Haughton agreed that the Soil it self is excepted in this case and so it was adjudged The same Term in the same Court. Talbot versus Sir Walter Lacen IN a Writ of Covenant brought by Margaret Talbot against Sir Walter Lacen upon a Lease made by the Plaintiff to the Defendant of a Park Covenant to leave the Premistes in repatations at the end of the Term. c. for five years if she should live so long in which the Lessee covenants for him his Executors and Assigns to keep the Premisses in good Reparations and so to leave them at the end of the Term and also to deliver to the Plaintiff upon notice given four Bucks and four Does in season during the life of the Plaintiff in every of the said years And after the expiration of the aforesaid term of five years she brought a Writ of Covenant and assigned the breach because that in the end of the term he committed Wast and because that after the end of the term the Defendant refused to deliver the Deer And albeit the words of the delivery of the Deer are during the life of the Plaintiff yet they are also every of the aforesaid years and therforeit was resolved that she shall not have them during her life in this case And for the other point it was objected that in Fine termini was incertain for it may extend after the term but Ad finem termini had been sufficient Old book of Entries 169. for when he covenants that at the end of the term he would leave the Premisses in reparations and Ad finem termini he did wast this ought of necessity to be intended a breach of the Covenant and therfore it was adjudged that the action of Covenant well lies Mich 16. Jac. In the Kings Bench. Havergall and Hares Case IN this Case which see before fol. 1. b. four points were observed 1. Whether Fisher the Assignee of the Rent were such a person who Before fol. 1. b shall take benefit of the entry 2. When 10 l. is only in arrear whether the Rent of 20 l. shall be said in arrear 3. Whether these advantages which were first granted with the Rent may be granted over 4. When the Vse shall rise whether upon the first Indenture of the grant of the Rent or afterwards For the case was that the Grantee of the Rent of 20 l. covenanted by the same Indenture that if the said rent of 20 l. were in arrear for the space of twenty daies after any day of payment that the Grantee shall distrain and if there be not sufficient distresse upon the Land or if there be a Rescous Replevin or Pound-breach that then it shall be lawfull for the Grantee and his Heirs to enter into the same Land and to retain it untill he be satisfied And the said Rent was granted 9 Jac. it was arrear 11 Jac. the Fine for the better assurance of the Rent was levied 12 Jac. and 13 Jac. the Distresse was taken There were four Causes which give an entry and upon the Distresse and Replevin brought the Assignee enters As to the three first points it was resolved by the whole Court 1. That Fisher was such an Assignee who shall take benefit of the Entry 2. When 10 l. is only arrear the Rent of 20 l. shall be said arrear wherupon there shall be a Title of Entry 3. That these advantages granted with the Rent may be granted over And as to the fourth point it was holden by Mountague and Crook that the Vse riseth upon the first Indenture and not upon the entry after the Replevin brought although the words are that then it shall be lawfull for the Grantee and his Heirs to enter wherby the use is only awaked as it is in the principall point in Shelleys case and although a Fine is afterwards
levied yet the Vse shall be directed by the originall Indenture and therfore 6 Rich. 2. A Feoffment is made to two and their Heirs and afterwards a Fine is levied upon it for further assurance to the use of them and the Heirs of one of them yet it shall go to the use of both for it shall be respected according to the original agreement where there are divers assurances for the perfecting of one and the same thing 16 E. 3. tit Age. A Daughter had a Seigniory by descent a Tenancy Escheats a Son is born he shall have the Land see Sharoes case in 4 Mar. Dyer and in Chadleighs case all looks to the originall agreement and therfore variance of time shall not hinder the originall agreement as 33. Ass the Servant inâ—ends to kill his Master and afterwards the Master puts him out of his Service and then he kills him this shall be petty Treason in the Servant 28 H. 6. Two are bound in a Bond at severall times and yet he shall declare against both as upon the first delivery 11 H. 7. it is adjudged that if a Deed be delivered by an Infant and afterwards it is again delivered when he comes of full age And see Mallories case Finches case and Borastons case Nunc tunc quando are a demonstration of the time and not of the matter and so they concluded that the Vse shall rise upon the first Indenture and not upon the Fine or Replevin brought but Doderidge and Haughton Iustices contra Trin. 17. Jac. In the Kings Bench. Silvesters Case JOhn Silvester promised to John B. that if he would marry his Daughter that he would give with her a Childs part and that at the time of his death he would give to her as much as to any of his Children excepting his eldest Son and afterwards he made his Executors and died I. B. brought an action upon the case against the Executors upon this Promise and shewed that the Executor had not given him a Childs part and that such a younger Son of the Testators had a 100 l. given him And it was resolved by the Court that the promise of a Childs part is altogether incertain but being so much as any of his Children had and then shewing that the younger Son had a 100 l. this was certain enough and therupon Iudgment was given for the Plaintiff The same Term in the same Court. Godfrey and Owen COrnelius Godfrey was Plaintiff in an action upon the case for Words He is a very Varlet and seeks to supâ—res his brothers Will c. words against Owen Defendant and the words were these to wit He is a very Varlet and seeks to suppresse his Broâ—hers Will he makes shew of Religion but he is a very Hypocrite And the words were spâ—ken of a Merchant to one who gave him much credite in his Trade Mountague chief Iustice said that the words which are actionable in such a case ought to touch the Plaintiff in his Profession which these do not do Et relata ad personam intelligi debent secundum conditionem personae for in the suppressing of his Brothers Will the case might be such that he might well do it for perhaps there may be an after Will made And for calling him Hypocrite lies not in the conusance of the Common Law for GOD only can judge of the heart of man and therfore these words do not touch the Plaintiff as he is a Merchant Doderidge Iustice Words ought to tend some way to the ruine of the party or otherwise they are not actionable and Iudgment was given Quod quere nil capiat per billam Mich. 17. Jac. In the Star Chamber Sis John Bingleys Case IN Sir John Bingleys case in the Star Chamber it was resolved by the two chief Iustices Mountague and Hobart and agreed by the Lord Verulam Lord Chancellor and Sir Edward Coke that if an Information be exhibited there which begins with divers particular misdemeanours and conclude in the generall that 1. The matter included in the generall charge ought to be Ejusdem generis 2. They ought to exceed the particulars expressed in number 3. They ought not to be greater or more capitall wherupon Mountague cited the Statute which speaks of Deans and other Spirituall persons upon which it hath been resolved that Bishops are not within it for they are of a higher degree and the principall reason of these rules was because that a man cannot possibly make a defence because he knews not what will be objected against him and upon this Sir John Bingley was discharged at this time for the most transcendent Offence that was objected against him to wit concerning Captain Baugh and other Pirates to whom the King of his grace and bounty had given 200 l. to make them Loyall Subjects But Sir John Bingley Colore officii had defrauded them of almost An Officer â— his own wrong all of it for the want wherof some of them died miserably and the rest became Pirates again But Sir John Bingley made many protestations of his innocence in this mâ—tter And it was holden also that one might be an Officer of his own wrong as their might be an Executor of his own wrong And this was Sir John Bingleys case for somthing in the information for he committed Extortion Colore officii The same Term in the Star Chamber THe Attorney-generall put in an Information against divers Dutch Merchants for buying and transporting of many great summs of Gold and Silver Bullion And it was said by the Court that divers Statutes had been made for redresse of this mischief as the Statute of 5 R. 2. the Offenders wherof ought to forfeit all they may and by another Statute in 17 E. 4. this Offence was made Felony to continue for seven years But the Court would not now punish them upon any Statute for it was an offence at common To carry Gold and Silver out of the Realm punishable at Common Law Law and therfore punishable in this Court And Sir Edward Coke said that if any be to be punisht upon a penal Statute it ought to be within two or three years at least after the offence committed for the Informer hath but a year to sue and the King two years for the most part The Statutes of 37 E. 3. and 5 E. 6. Prohibite the buying of Coin and that it is so at the Common Law see 21 E. 3. 60. and Plow 215. and not only he that buyes but he that sels also offends in it for it is a Prerogative only belonging to the King and it is his Coin and none can put a value upon it but himself which is a Flower of his Crown Hobart chief Iustice of the Common Pleas as one shall be punished for ingrossing any Commodity a Fortiori one shall be punished for ingrossing and buying of a great quantity of money all other Commodities being thereby ingrossed for money is the Mistresse of commerce Pecunia
very plain case Crew chief Iustice agreed and in his argument he affirmed what Jones said that a generall Iudgment shall not be given against the Heir if he do not plead falsly that he hath no Assets and not upon Nihil dicit And so Iudgment was given that the Plaintiff shall have Execution of the Moyety of the Lands discended to the Defendant and so note the diversity of debt against the Heir and Scire facias against the Heir Dickenson versus Greenhow Hill 1. Car. In the Kings Bench Intr. Hill 18. Jac. Rot. 189. IN an Attachment upon a Prohibition the Plaintiff declared that where Robert the last Abbot of Cokersham in Lancashire was seised in Fee of three acres of Land parcel of his Monastery and that the Abbot and his Com-monks and all the Predecessors of the Abbot were time out of mind of the order and rule of Praemonstratenses and that the order of Praemonstratenses and all Monks therof were time out of mind discharged of payment of tithes for their Lands and Tenements Quamdiu manibus propriis aut sumptubus excolâ—bant And that the said Abbot and all his Predecessors time out of mind had holden the said three acres discharged of payment of Tithes Quamdiu c. and so held them untill the dissolution of the Monastery and shew the surrender to H. 8. and the Statute of 31 H. 8 by force wherof H. 8. was seised and held them discharged and from him derive them to E. 6. and from E. 6. to Queen Mary and from her to Queen Elizabeth and from her in the 42. year of her Raign to Wagstaff and from him by mean conveyances to Dickenson the Plaintiff Quorum pretextu he was seised and enjoyed them in Propria manurantia and shew the Statute of 2 E. 6. cap. 15. wherby it is enacted that Tithes shall be paid as usually they were c. Quorum pretextu the Plaintiff held the three acres discharged of Tithes and that notwithstanding and against the Prohibition the Defendant did draw him into Plea for them in Court Christian and the Iudge therof held plea and the Defendant did there prosecute him to the disinherison of the Crown And upon this the Defendant demurred and prayed a consultation And Sir John Davies the Kings Serjeant argued for the Defendant that a Consultation should be granted because that his matter of discharge is double 1. His Priviledge 2. The prescription and if either of them will not help him then he ought to be charged For the Priviledge he took it that the Praemonstratenses never had such a priviledge It is a Maxime in Law All Lands chargable with Tithes that all persons ought to pay Tithes and all Lands shall be charged with them of common right but also there are divers discharges of them and allowed by our Law as is manifest by the orders of Templers Hospitalers and Cistertians which discharges our Law allows and these are 1. By prescription 2. By reall composition 3. By priviledge obtained and that by two wais 1. Either by the Bull of the Pope for he taking upon himself to be the great Dispensâ—r and Steward of the Church took upon him to discharge them but this as it is holden by the Canon he could not absolutely do but might divert them to a Clergy-man or grant to another to hold them by way of retainer and this ought to be to a Clergy-man also Or 2. By a generall Counsell for some orders were discharged by generall Counsels So some obtained Priviledges by the Popes Bulls which are his Patents some by Counsels which are as his Statutes and Decrees were as Iudgments but yet none of them had ever any force in our Law nor did bind us in England more then voluntarily retained and approved by usage and custom for as it is said in 11 H 4. the Pope cannot alter the Law of England and this is evident for in all cases where the Bulls or Constitutions of the Pope crosse the Law of the Land they have alwaies been rejected The Popes Bulls of four sorts as for instance 1 In the Bulls which are of four sorts 1. Of Provision 2. Of Citation 3. Of Exemption And 4. Of Excommunication And as for those of Excommunication it appeareth that it was Treason at Common Law and that the Treasurer did kneel to E. 2. for one who brought them in and in the perpetuall course of the Books afterwards they have alwaies been disallowed in Pleas. So his Bulls of Citation before the Statute of Provision was a hainous offence and so are Bulls of Provision and Exemption For his Canons where they were against the Law they were neglected It appeareth by the Canon Quod nullus capiat beneficium a Laico and yet notwithstanding continued long after for Benefices and does yet for Bishopricks that the Clergy shall take them from the King and a lay-hand And also there is a Canon for exemption of Clarks out of temporall Iurisdiction but yet as Brain saith 10 H. 7. 18. it was never observed here So the Canon saith that the time of the Laps shall be accounted Per septimanas but our Law not regarding this saith that it shall be accounted Per menses in the Calender as it is expresly adjudged in 5 E. 3. Rot. 100. Rot. claus in turri And there is a great reason for it as it is in 29 H. 3. memb 5. in turri It is not necessary for Bishops of England to go to generall Councells so as in Parliament those that do not â—end Knights or Burgesses shall not be bound by Statutes And the Counsels of Lyons of Bigamis c. are expounded by Statutes how they shal be taken so that it they have a Priviledge as in truth they have by the Popes Bulls if it were not allowed in England they are not of force to priviledge them against the Common Law of the Land for payment of Tithes but this was never here allowed And now for the Prescription this cannot help them for Monks are not of Evangelicall Priesthood to wit capable of Tithes in the Pernamy but meerly Lay-men and then as the Bishop of Winchesters case is they cannot prescribe in non decimando And Bede saith of them that they are Merè laici so that if their Priviledge were allowed their Prescription will not help them The priviledge of Praemonstratenses was by the Counsell generall of for their discharge which denies that all religious persons should be discharged of Tithes of Lands in their own hands Quamdiu c. But afterwards Adrian restrained it to Templars Hospitalars and Cistertians omitting the Praemonstratenses and the decree of Adrian was received also wherby the Law took notice of the discharge of the said three Orders True it is that the Praemonstratenses have a Bull of Pope Innocent the third of discharge and as large liberties as the Cistertians but they never put this in ure And it seems 1. That there were of them 29. Abbots
Prohibition and had it and Noy moved for a Consultation 1. Because that a Prohibition and an Attachment upon it are but one Suit for the contempt of the party in bringing his Suit in another Court and translating this from the Kings Court and when it is once tried for the Defendant the same thing shall not be tried again And as to the Statute of 50 E 3. 4. upon the mistake wherof the mistake is raised he confessed that the Printed Books and also in the Extract of the Parliament one Roll remaining in the Tower is the same Iudge but the Parliament Roll it self and the Petition is Liceatque Iudici Ecclesiastico sive diocess eidem an hujusmodi and the answer to the Petition is one Consultation granted sufficeth in this case And the Parliament Roll it self was brought into the Court and viewed but he said that if it were as it is in the printed Book and Extract the same Iudge shall not be intended the same personall Iudge but the same Iudge of Conusance of the same Iurisdiction or cause for otherwise if another Commissary be made as the Bishop may when he will his Successor may be newly prohibited and also one thing may be infinitely tried for in many places the Suit begins in the Arch-deacons Court and from him an Appeal may be brought to the Bishop The same Term in the Kings Bench. Pack versus Methold in a Writ of Error IN Mich. Term 22 Jac. Methold brought an action upon the case in the Common Pleas against Pack and declared that in consideration that the Plaintiff would pay to Playford 52 l. 14 s. to the use of the said Pack such a day c. Pack promised to deliver to him his Bond in which he was bound to him in the said summ when he should be therunto requested And shews that he had paid c. and the Defendant did not deliver to him the Bond albeit the same to do he was afterwards often times requested and upon non assumpsit pleaded it was found for the Plaintiff and now it was moved in Arrest of Iudgment because the request is not laid specially nor the day nor place therof expressed But the Court to wit Hobart chief Iustice Hutton and Harvey gave Iudgment for the Plaintiff and yet they agreed that if he had demurred upon the Declaration it had not been good and also that if it had been generall Licet saepius requisit it had not been good in as much as it is parcell of the promise and therfore ought to be said substantially viz. That it was after the promise and payment of the 52 l. but the time is supplied by these words Postea and there is no defect but in the place and Postea implies that it was after the promise and payment And Hobart said that all the points of the Declaration which have matter and substance are good only there wants the place where the request was made which by the Issue is moved and the request is here well notified to the Court and the defect of the place is now helped by the Statute Hutton said that if the promise had been to pay so much upon request at Easter there the day ought to have been shewn and Postea had not been sufficient but here the Postea refers only to a thing wherby it is certain and he said that upon this Issue such a request shall be given in evidence Harvey said that the request being here laid as it is the Court may well give Iudgment And it seemed to Hobart that such a request cannot be given in evidence where the Issue is upon an Assumpsit And Iudgment was given for the Plaintiff and afterwards a Writ of Error Hill 1. Car. Where in an action upon the case there ought to be a speciall request and where not was brought in the Kings Bench and the opinion of the Court was strongly that the Plaintiff ought to have alledged the request specially and ceriainly in time and place because it is traversable and parcell of the Assumpsit and not to be done but upon request Jones Iustice remembred divers Presidents in the point and further day was given to bring in Presidents of either side and two Presidents were produced according to the opinion of this Court Scil. Pasch 30 Eliz. Rot. 464. in 1. Court Old and Estgreens case Trin 16 Jac. Rot. 268. Wales case But in Debt Licet saepius requisit is sufficient for it is not materiall nor traversable for the bringing of the action of Debt which is a Precipe is a sufficient demand in it self and afterwards at another day the Court continued of the same opinion and therfore the Plaintiff in the first action brought a new action Quod nota for albeit the Defendant had pleaded non assumpsit and Issue was joyned upon it yet this did not amend the evill laying of the request according to the Presidents abovesaid Pasch 2 Car. In the Kings Bench in t Hill 1 Car. Rot. 135. Constable versus Clobery IN an action of Covenant the question was upon the Traverse the Plaintiff declared upon the Indenture of Covenant and the Covenant was that a Ship shall go with the next fair wind and that the Merchant shall pay so much for fraught the Defendant saith by way of traverse that he did not go with the next wind and it was obiected by Stone of the Temple of Counsell with the Plaintiff that the Traverse was not good but he ought to have traversed that the Ship did not go at all for that which is materiall shall be traversed and that the Ship did not go is the most materiall thing here and this appeareth by 15 E. 4. 2. where a Gift in tail is traversed and not the death of the Tenant in tail 19 H. 8. 7. 36 H. 6. 16. 2 H. 5. 2. 2 H. 7. 12. and there are cases to this purpose Co. lib. 7. 9. Ughtreds case If a man intitles himself to Land by an Estate which cometh by Condition he ought to shew that the Condition is performed A Covenant against a Covenant will not make an Estoppell but he shall bring his action 3 H. 6. 33. Where he ought to shew that he went to Rome because it is a precedent Condition The principall case in Ughtreds case prove other to wit that which is materiall is alledgable And the difference upon the case of 48 E. 3. 3. 4. Where A. Covenant with B. to serve him with three Esquires in France and B. covenant for it to pay him 42. marks he may chuse to covenant in generall or speciall as he will for there was Covenant against Covenant and here there is a Covenant of one part to go with the Ship and on the other part to pay so much for the Fraught and so Covenant against Covenant And it seemed to Doderidge Iustice that the Traverse is not good for the Traverse here is by permission of God And for another thing where Merchants
provided that if the Rent upon the second Lease be arrear that the Lessor may enter the first Lessee surrender a Rent-day incur the second Lessee doth not pay the Rent the Lessor shall not enter for a Forfeiture because the first Lease determined by an act which lies properly in the Conusance of the Lessor and because he was to take advantage by it he ought to have given notice therof to the Lessee and here he might have well given notice to the Defendant for it lies properly in the Conusance of the Plaintiff The second Objection was that here was an implied notice because the Marriage was at the instance of the Defendant which implies a notice Vnder favour this is no notice for this is before the marriage but if no notice be given after the marriage then there is no notice But by Serjeant Davies there is a sufficient implication and there is no need of notice in our case and see Co. lib. 8. Francis his case where they ought to take notice at their perill and a marriage is an Ecclesiasticall Iudgment of which he ought to take notice and he was interrupted for all the Iustices went to the Parliament And divers Presidents were cited that there need no notice to be given in this case And it was agreed that Iudgment should be given for the Plaintiff And in Trinity Term next following Iudgment was accordingly given for the Plaintiff The same Term in the same Court Sir George Reynolls Case SIr George Reynoll Marshall of the Marshalsey of the Kings Bench What Bonds a Sheriff or Marshall maâ— take â—rought Debt upon a Bond the Condition wherof was that the Defendant shall be a true Prisoner and it was doubted whether the Bond were within the Statute of 23 H. 6 cap. 10. Doderidge It is not to be understood by this Statute that a Sheriff Gaâ—ler or Marshall shall take no Bond for if the Marshall hath a man in execucution and fear that he will escape and he takes Bond of him this Bond is good Jones The intent of the Statute that the Sheriff or Marshall shall not suffer Prisoners to go at large for that is within the Statute And it was ruled in the Kings Bench that the Marshalsey should be enlarged Within the Rules of Bâ— what it is and this shall be called within the Rule and if the Marshall take a Band to tarry there it is good but if he suffer him to go at large it is not good The same Term in the same Court Sury versus Albon Pigot and three other Defendants Intr. Hill 1. Car. Rot. 1. 24. IN an action upon the case for stopping his Water-course the Plaintiff declares that 14. Octob. 22. Jac. he was possessed of the Rectory of M. in Barkshire of which a Curtilage was parcell and that in this Curtilage is and hath been time out of mind a watering place for the watering of the Cattell of the Plaintiff and others and for other necessary uses and that a certain Watercourse had time out of mind flowed from Mildford stream to this Curtilage and that this water filled the said Pond and further that the Defendant well knowing this and intending to dam up the said Watering-course built a stone Wall therupon wherby the Water-course was stopt up to the Plaintiffs damage of 20 l. and this was laid with a Continuando The Defendant plead that 3 H. 8. the said H. 8. was seised of the Mannor of c. and of the said Rectory in his Demesne as of Fee and of a certain peece of Land called the Hopyard lying between the said watering-place and the said stream and by his Letters Patents granted this to Wiliam Box and his Heirs by virtue wherof he was seised Francis Searles entred upon him and was seised and enfeoffed Pigot 20 Jac. by virtue wherof of he was seised c. and the three others justifie as Servants to Pigot that they the said day and year filled up the said Water-course as it was lawfull for them to do and Whether unity of possession in severall lands shal destroy a Water course that this is the same Trespasse c. The Plaintiff demurs And the question is whether the unity of possession of all in H. 8. hath extinguished the Water-course And by Dorrell for the Plaintiff if it were of a Common it is cleer that it is destroyed because Common ought to be in another mans Land but not in our case for if one prescribe to have Warren if he purchase the Land yet he shall have Warren 11 H. 7. 25. there are two houses and the one prescribe that the other shall mend the Gutter and afterwards they come to the hands of one man and then he alien one of them this unity shall destroy the mending of the Gutter Berd for the Defendant that the unity hath destroyed the custom 21 E. 3. 2. A way is but an easement yet by the purchase of the Land the way is extinguished and also the watering-course is not only an casement but a profit or Prender and he cited Dyer 295. in case of an Inclosure that the Inclosure is extinguished but there is made a quaere and he cited 38 Eliz. in C. B. an opinion that by purchase of a Close the Inclosure is extinguished a fortiori here because it is a profit And for the case of 11 H. 7. it is by the custom of London but there is no custom in our case and the case of a Warren is not like to our case because a man may have Warren in his own Soil And in Michaelmas Term next the case was argued again by Barkesdale for the Plaintiff that the unity of possession in H. 8. had not extinguished the Water-course and that the Terminus ad quem and the Medium also being in one had not distinguished nor destroyed it And 1 Col lib. 4. 26. Benedicta est expositio quando res redimitur a distructione The Law will not destroy things but the Law will somtimes suffer a fiction which is nothing in rerum natura ut res magis valeat I confesse that profit apprender as Common or Rent is extinguished by unity of possession for Common it appeareth in 4 E. 3. and Co. lib. 4. Terringhams case And for Rent it appeareth in 4 H. 4. 7. and in 21 E. 3. 2. it appeareth that a way is extinguished by unity of possession 3 H. 6. 31. Brook Nusance 11. for it is repugnant for a man to have a way upon his own Land But I conceive that our case differs from the case of a way and that for this reason where the thing hath a being and existence notwithstanding the unity there it is not destroyed by the unity but the Water-course hath a being notwithstanding the unity ergo c. I will prove the major proposition by these cases 35 H. 6. 55 56. Where a Warren is not extinct by a Feoffment of the Land for I may hawk and hunt in my
own land as in another mans so the Warren hath existence notwithstanding the unity Dyer 326. Where the Queen was seised of Whaddon Chase and the Lord Gray was Lievtenant there in Fee and he and his Ancestors and their Keepers had by prescription used to hunt wandring Deer in the Demesns of the Mannor of S. adjoyning as in Purlieues the Mannor of S. comes into the Queens hands who grants this to Fortescue in Fee with free Warren within the Demesns c. it was holden that the unity doth not extinguish the Purlieu Dyer 295. Two Closes adjoyn the one by prescription is bound to a Fence the Owner of one purchase the other and suffer the Hedges to decay and dies leaving two Daughters his Heirs who make partition Quaere whether the prescription for the Inclosure be revived true it is that it is made a quaere but he saith see the like case 11 H. 7. 27. of a Gutter which proves our case as I will shew afterwards For the Minor proposition that the watering hath being notwithstanding the said unity I will prove it by 12 H. 7. 4. A Precipe quod reddat of Land Aqua Co-opert Mich. 6. Jac. Challenor and Moores case An Ejectione firmae was brought of a Watering-course and there resolved that it does not lye of it because it is not firma sed currit but of Terra aqua co-operta it doth lye Also I will take some exceptions to the Bar there is no Title in the Bar for the Defendant Pigot and so we being in possession albeit in truth we have no Title yet he who hath no Title cannot oust us neither can stop the said Water-course and it is only shewn in the Bar that Searles entred and enfeoffed Pigot but for any thing as yet appears the true Owner continued in possession 21 Jac. C. B. Cook against Cook in a Writ of Dower the Defendant pleads an Entry after the Darrein continuance and doth not plead that he ousted him and upon this the Plaintiff Demurs and there adjudged that it is no plea in Bar because he doth not say that the Defendant entred and ousted the Tenant 2. Exception the action is brought against four Scil. Pigot Cole Branch and Elyman and Pigot hath conveyed a Title from Searles the three other Defendants justifie but Pigot doth not say any thing but that Searles enfeoffed him 7 H. 6. an action of Wast is brought against many one answers and the other not this is a discontinuance And for the principall matter I will conclude with 11 H. 7. 25. Broo. Extinguishment 60. Two have Tenements adjoyning and the one hath a Gutter in the others Land and afterwards one purchase both and then he alien one to one and another to another the Gutter is revived notwithstanding the unity because it is very necessary and so he prayed Iudgment for the Plaintiff Bear for the Defendant I in a manner agree all the cases which have been put on the other side and I conceive that the Water-course is not Stagnum but Servitium which is due from the one land to the other It is but a liberty and therfore I agree Challenors case which is but a liberty that an Ejectione firmae doth not lye of it but Ejectione firmae lies De stagno For the first exception I answer and confesse that to alledge an Entry after the Darrain continuance without alledging an Ouster of the Tenant cannot abate the Writ for the Defendant may enter to another intent as appeareth in the Commentaries and with the assent of the Tenant But here it was alledged that a Feoffment was made and a Livery which implies another For the matter in Law I conceive that the Water-course is extinguished and it may be compared to 21 E. 3. 2. The case of a way which is extinguished by unity of possession Hill 36. Eliz. Rot. 1332. Hemdon and Crouches case Two were seised of two severall acres of Land of which the one ought to inclose against the other one purchase them both and lets them to severall men and there the opinion was and adjudged accordingly that the Inclosure is not revived but remains extinguished 39 Eliz. Harringtons case the same thing resolved and albeit in Dyer 295. is a quaere yet the better opinion hath been taken according to these resolutions H. 4. Jac. Jordan and Ayliffes Case when one had a way from one acre to another and afterwards he purchased the acre upon which he had the way and afterwards sold it and in that Case the opinion of 3. Iustices was that the way was extinguished also 11 H. 4. 50. and 11 H. 7. 25. prove this case for the said case is compared to the custome of Gavelkind and Burrough English and there the quaere is made whether by the custome it be revived and if it be a custome which runs with the Land the unity of possession doth not extinguish it Co. lib. 4. Terringhams case and 24 E. 3. 2. common appendant is destroyed by unity of possession and yet it is a thing of common right but a Water-course being a thing against common right a fortiori it shall be extinguished Now I will take some exceptions to the Declaration 1. Because he hath laid a prescription for a Water-course as to say that it was belonging to a Rectory to which c. and this is a good exception as appears by 6 E 6 Dyer 70. Ishoms case where exception was taken that before his prescription he doth not say that it was Antiquum parcum which exception as it is there said was the principall cause that Iudgment was given against him and also as the case is here it ought to be a Rectory impropriate and this cannot be before the time of H. 8. which is within time of memory for before the said time no lay person could have a Rectory impropriate and therfore I pray Iudgment for the Defendant Barksedale said that the prescription is well laid and that he would prove by 39 H 6. 32. and 33 H. 6. 26. and per curiam the prescription is good enough and albeit it is not said that it is Antiquae Rectoria yet it is well enough Mich. 1 Car. at Reading Term in Broek and Harris case he doth not say that it was Antiquum Messuage and yet resolved good Doderidge the case of 6 E. 6. differs in this point from this case for a Rectory shall alwaies be intended ancient and so is not a Park for this may be newly created and he put this case suppose I have a Mill and I have a Water-course to this in my own land and I sell the Land I cannot stop the Water-course Crew chief Iustice seemed of opinion that the prescription is gone and that the better opinion in Dyer 13 Eliz. hath alwaies been that the Inclosure is gone by unity of possession but yet the Water-course is matter of necessity Doderidge and Whitlock the way is matter of election but the course of water is
Proviso extends only to Iudgments originally commenced in Towns corporate and not to executions upon Iudgments given in superior Courts for then the Sheriff does execution as an Officer to these Courts And the Sheriff of the County is at as great pains as if he were Sheriff of another County and shall not be bound by the Proviso Whitlock Iustice was for the Plaintiff in both the points to wit that the Sheriff shall have 1 s. for every 20 s. of the first 100 l. and 6 d. for every 20 s. of the residue And by him the Sheriff may refuse to do execution untill the levying money be paid to him And for the second point the Sheriff of the County of the City is not within the Proviso but shall have the Fees by the Statute provided as well as the Sheriff of the County shall have for the words are generall and the exception goes to all Towns corporate and Cities but doth not say Cities which are Counties and therfore this Sheriff is within the benefit of this Law And in Michaelmas Term next following the case was moved again by Whitlock for the Plaintiff and he said that he would not speak to the second point because the Court had delivered their opinion that the Proviso in the Statute that this shall not extend to executions in Towns corporate it is to be intended of executions in Towns corporate upon Iudgments there given But for executions there upon Iudgments given in this Court or any other superior Court the Sheriff shall have such Fees as are limited by this Statute And the Court said to him that were agreed of it And as for the first point he conceived that the Sheriff shall have 12 d. for levying of every 20 s. of the first 100 l. and 6 d. of every pound more and this appears cleerly by the Letter of the Statute And the case in Mich. 19 Jac. in C. B. between Empson and Bathirst doth not make against it for the resolution of the said case was upon other matters The case being a man was bound in a Statute of 120 l. the Sheriff extends and before the Liberate takes double Bond of the party for payment of his Fees and afterwards brought Debt against the party who pleads the said matter in Bar and the Statute of 23 H. 6. cap. 10. And in the case were three points 1. Whether the Sheriff may take a double Bond for the payment of his Fees and it was resolved that the Bond was void for the Sheriff might have Debt upon the Statute for his Fees 2. Whether the Sheriff shall have his Fees before the Liberate and resolved that he shall not 3. Was this very question and two Iustices were against one that where the summ exceed 100 l. he shall have but 6 d. for levying of every 20 s of the first 100 l. But the Iudgment was given upon the other points All the Court seemed to be of opinion that he shall have 12 d. for every 20 s. of the first 100 l. and 6 d. for every 20 s. of the residue The same Term in the same Court. Awdeley versus Joye AWdeley being put out of the Town-Clarkship of Bedford moved for a Writ of Restitution to the place and it seemed to Doderidge Iustice that the Iustices of this Court have power to grant restitution in this case and he cited a case in 16 Eliz. in this Court where restitution was granted in such a case and 43 Eliz. by warrant of Fennor Iustice a Writ of Restitution was granted One who was Town Clark of Boston for life was made Alder-man and put out of his Clarkship and was restored This Court hath power not only in judiciall things but also in some things which are extrajudicial The A Writ of Restitution to a Town-Clark being ousted of his Office Major and Commonalty of Coventry displaced one of the Alder-men and he was restored And this thing is peculiar to this Court and is one of the flowers of it Crew chief Iustice doubted whether restitution could be made to Awdeley or no because the Office was granted to him in Reversion when it was expectant upon an Estate for life and when the Officer for life died Joye was elected and he said that all the said Writs remembred are where he had once possession Whitlock Iustice in the case of one Constable 10 Eliz. It was resolved that this Court hath power to grant restitution in such a case where he was put out of his Office And by Jones Iustice this Court hath power to grant Restitution and he remembred one Mittlecots case And Noy being of Counsell with Awdeley said that there are Presidents to prove this in the times of E. 2. E. 3. and H. 6. And it was said by the Iustices that they are the chief Conservators of the Peace within the Realm and therfore have power for the preservation of the Peace in such factious Towns to grant restitution The same Term in the same Court Dabborne versus Martin THomas Dabborne brought an action upon the case against Martin for Words Thou art a Knave of Record these words Thou art a Knave of Record and a forgering Knave And it was argued by Jermy for the Defendant that the words were not actionable for a Knave signifies a Male-child so that it is no more then to say Thou art a Male-child of Record And for forgering Knave the action will not lye for Forger is a generall word and may be applied to divers Trades as forgering Smith forgering Goldsmith and when he called him forgering Knave there was no communication of his Office 18 Jac. Sir William Brunskill brought an action upon the case and declared that he was well discended and was a Gentleman of the Chamber to Prince Henry and he brought an action for these words Thou art a Cosener and livest by cosenage and adjudged not actionable Co. lib. 4. 16. Action upon the case doth not lye for these words Thou art a corrupt man if there were no communication touching his Profession And it was argued for the Plaintiff that the words were actionable for it lyeth for these words Thou art an Out-putterer if they were spoken in Northumberland where they are understood but not here because they have no signification And the words here are speciall and shall have reference to his Office and shall have such an interpretation as is now used and now Knave hath no signification of Male-child Jones Iustice said that if one saith that such a one is a corrupt Iudge action lies or if one saith of a Clark that he is a forging Clark action lies And in 28 Eliz. the opinion of Iustice Fennor was that for these words Thou hast forged my Fathers Will action lies Crew said that he did not understand the word Forgering but for calling one Knave of Record action lies And Doderidge Iustice said that he never gave way to these actions upon the case for words And no opinion
will is wrong to him and the performance of Wills is much favoured because it is the last desire of the Partie who is dead and it is for the publick-weale because by this means debts shall be payd And many cases are within the equity of the Statute that are not within the letter as those Cases which have been put all which he agreed Jones Iustice on the sudden was against it and that this Case is not within the equity of the Statute of 4. E. 3. There are divers Actions which are not helped by this Statute as Trespasse for cutting of Trees Battery and the like for the Statute is de bonis Catallis asportat in vita testator An Executor shall have a Replevin of Goods taken in vita testator for by this he recovers the thing it selfe and shall have Detinue but shall not have treâ—passe for he cannot punish the wrong done in the life of the Testator The Statute of 4. E. 3. is much inlarged by equity as the cases which have been put and extend also to usurpation in the life time of the Testator as appears in Russels Case Co. lib 5. 32. 33. Eliz. in C. B. in the Bishop of Chichesters case that if the Testator dyes within 6 months after the usurpation the Executor shall have a Quare impedit And the Case of Trover and Conversion in vita Testator was maintained by Executors and it was so resolved 41. and 42. Eliz. in the Countesse of Rutlands Case in both the Benches because this is in nature of a Writ of Detinue Now for the Case in question I conceive that it is not within the Statute of 4. E. 3. because it is neither bona nor catalla Whitlock Iustice contra and that this Statute is very much taken by equity praeter literam though not contra literam But Nota that all agreed if it were upon an escape after Iudgement that the Action would lie by the Executors according to the Case of F. N. B. 121. a. But the principall Case was adjourned And afterwards Trin. 3. Car. It was argued again by Jermy for the Plaintiff and the sole point was A man taken by latitat and being in the custody of the Sheriff escape the Party at whose suit he was arrested dies whether his Executor shall have an Action upon the Case upon the Escape and he conceived that he might It hath been objected that it is a personall wrong and as an Action doth not lye against Executors upon an Escape in vita Testator so not by Execucutors To which I answer that it is not meerly personall but mixed with an interest At the Common-Law an Executor could not have trespas for Goods taken in vita Testator but yet he should have a Replevin 34. E. 3. Fitz. Avoury 257. and Executors 106. So at Common-Law a Successor should not have Trespas for Goods carried away in the life time of his Predecessor but he shall have a Replevin 9. H. 6. 25 but this was remedied by the Statute of Marlebridge cap. 28. and so upon the Statute of 4. E. 3. de bonis asportat c. Trover and Conversion hath beene adjudged within the said Statute for the Statute hath alwayes been liberally expounded 7. H. 4. 2. Fitz Executor 52. An Executor shall have ravishment of Gard taken away in vita Testator and also other Statutes which do not name Executors have beene eâ—pounded to extend to them as the Statute of 23. H. 8. which gives attaint 3. Eliz. Dyer 201. Co. lib. 6. 8. Executors shall take benefit of the pardon of Trin. 14 Jac. Pâ—obe and Maynes Case if the party escape being a rested upon mean Proces the Sheriffe is not liable for the Escape otherwise if upâ—n an Execution 43. Eliz. and 6. E. 6. Bendloes Reports which is cited there Executors shall have restitution upon the Statute of 21. H. 8. and Co. lib. 5. 31. and 27. Russels Case an Executor shall have Trover upon Goods lost in vita Testator and this is in manner and nature of a promise to have the party in Court at the day and it is cleer that upon an expresse Assumpsit to the Testator an Executor shal have an action upon the Case and it hath been in manner agreed by the Court that if it had been an escape of one in execution that the action would have lyen by the Executor and I see no difference between that and our case And it was adjourned The same Term in the same Court UPon an Information by Heath the Kings Attorney against two men of the County of Huntington in the name of all the County that they ought and used to repaire the Bridge of S. Eedes in the County of Huntington Issue was joyned by the County whether they ought and used to repaire this Bridge and the Attorney gave no evidence but put it upon the other side for he said by the Statute of 22. H. 8. cap. if it doth not appeare that any particular person or Towne ought to repaire a Bridge by reason of Tenure or otherwise that then the County where this is ought to repaire it But Nota that the issue was whether they ought to repaire the whole Bridge and yet upon the evidence it appeared that onely two Arches and a halfe of the Bridge was in the County of Huntington and two Aâ—â—hes and a halfe in the County of Bedford and the Iury found generally that onely two Arches and a halfe of the Bridge were in the County of Huntington and say nothing where the rest was for they could not find a thing in another County And also they found that the County of Huntington ought to repaire all but not that they used to repaire it And at another day Hedley Serjeant moved for the County that the Verdict was not good because the issue was whether they ought to repaire and a tempore cujus contrarium c. had repaired c. And the Iury hath found that they ought to repaire which is but the halfe of the issue and also they find that they ought to do it which is a Question in Law and therefore voyd 8. H. 6. 3. 4. Secondly the issue is whether they ought to repair the Bridge and the Iury hath found that they ought to repair two Arches and a halfe onely c. and the Bridge is an entire thing The Attorney answered that for the first exception the case of 27. Ass Pl. 8. is against it And for the last the very case of 43 Ass Pl. 37. is against it and therfore the Court conceived the Verdict good notwithstanding these exceptions Doderidge Iustice By the common Law before the Statute of 22. H. 8. if no man by reason of tenure or otherwise ought to repaire a Bridge the County ought to do it like to the case of 8. E. 4. Fishers by the Law of Nations may dry their Nets upon the Land of any man The same Term in the same Court DOctor
Cleland brought a Writ of error against Baldock upon a Iudgement given in where the Plaintiff declared that the Intr. Hill 22. Iac Rot. 59â— Defendant in consideration that he would do all his commands honestly and truly for the space of a yeare assumed to pay him 10 l. and further declared that he had done all his honest and lawfull commands and this promise being found by verdict Iudgement was given against Doctor Cleland and thereupon he brought this Writ of error and Greene assigned two errors 1. The Assumpsit is that he shall doe all his commands honestly and truly and he hath declared that he hath done all his lawfull and honest commands and he may honest commands and yet not honestly 2. It is said that Jurator Assident dampna and it is not said occasione transgression predict and it is against all Presidents But Nota that there were these words ex hac parte opposita and therefore the exceptions were disallowed by the Court and the first Iudgement affirmed The same Term in the same Court. Secheverel versus Dale THis Case was sent out of Chancery to this Court â—o know the Law therein and in Trespas the case was this Henry Secheverell the Father seised in Fée levied a Fine to A. and B. in Fee to the use of himselfe for life absque impetitione vasti with power to cut and carry away the trees and to make Leases for 21 yeares or three lives the remainder to the use of John Secheverell his eldest Son for life without impeachment of waste with the same powers Henry the Father made a Lease to one under whom the Plaintiff claims for three lives rendring the ancient Rent excepting all the trees unlesse those which shall be for cropping lopping and fewell Henry the Father dyes John the Son in the next remainder cut certain trees Victorin Secheverell who clayms by the lease made by the Father brings trespas and two Questions were moved 1. Whether Lessee for life without impeachment of waste may make a Lease excepting the trees and it was objected by the Councel of the Plaintiff that he could not because this second Lease ariseth out of the first fine and out of the estate of the Conusor But the Court prima facie was of opinion that he might well make such a Lease with such an exception See Co. lib. 11. Lewys Bowls his Case and Doctor and Student lib. 1. cap. 1. and by Doderidge Iustice the Lease ariseth out of both the estates Jones Iustice suppose the Lessee absque impetitione vasti assigne over all his estate might he cut the trees and it was conceived that he might for by Doderidge he hath power to dispose of the trees as it was resolved in Lewys Bowls his case Jones he hath no propriety in the Trees untill they be cut Crew ch Justice Admit a Stranger cut the trees who shall have them By all the Court the Lessee without impeachment of waste shall have them 2. Point Tenant for life without impeachment of waste with power to cut and carry away the trees and make Leases for 21. years or three lives the remainder for life to J. S. without impeachment of waste c. Tenant for life makes a Lease for thrée lives and dyes whether he in remainder for life without impeachment of waste with power to cut the trées may cut the trées and take them during the Lease for thrée lives and the Court séemed to be of opinion that he might And Leving of Councell with the Plaintiff argued that when tenant for life without impeachment of waste with power to cut the trees and to make Leases for 21. years or three lives makes a Lease for thrée lives excepting the trées that this is a voyd exception because he hath no interest but a bare Authority 27. H. 6. Fitz. Wast 8. Statham tit Wast 1. makes this a Quaere which Statham was once the owner of the Land in question A man makes a Lease for life without impeachment of waste a Stranger cuts trées the Lessée brings trespas he shall recover no Damages for the value of the trees because the propriety belongs to him in the reversion he may dispose of them Quaere Dyer 284. Daunsley and Southwels Case Co. lib. 11. Lewys Bowles case that such a Lessee may take trées which are blown down and 3. H. 6. 45. Mich 41. and 42. Eliz. C. B. Leechford against Sanders in an Action of waste upon a Lease made to Sanders for life with a proviso that the Plaintiff might dispose of the trées during the estate and resolved that the Action lies not for notwithstanding this power the trées are demised to the Lessée also so here when the trées are excepted he hath no interest but only an authority 2. The exception is voyd for another reason because when such a Lessée makes such a Lease this is not his Lease but it hath its operation out of the originall fine and he who makes this hath but the nomination and therefore cannot adde a condition or exception to it And if the second Lease shall have its being out of the estate of the Lessee for life then there shall be an use upon an use as appears Co. lib. 1. 134. and that the Law will not allow 15. H. 7. and Co. Lib. 1. Albanyes Case If a man devise that his Executors shall fell his Land they cannot adde a condition or exception to this sale as an attornment upon a condition subsequent is voyd Co. lib. 2. Tookers case 3. This case may be resembled to the case of Copy-holds which is in Co. lib. 8. 63. b. in Swaynes Case If a Lord takes a Wife and afterwards grants Lands by Copy according to the custome and dyes his Wife shall not be endowed of this Land for albeit her title of Dower was before the Grant yet the title of Copi-hold which is the custome is elder then the title of Dower so in our case the title of the second Lessee is derived out of the estate of the Conuzées and therefore shall not be clogg'd with the Exceptions of Lessee for life without impeachment of waste 4. This priviledge to cut the trées is annexed to the estates and goes along with the estate and therefore shall not begin before the Stranger be in possession 3. E. 3. 44. 45. Idles case 28. H. 8. Dyer 10. And it may be resembled to the cases of 16. E. 4. and 27. H. 8. Tenant in taile sold the trées if he dyes before the Party takes them he shall never have them because he hath stayd out his time But it may be objected that upon such a Lease he may reserve a rent as it is in Whitlocks case Co. lib. 8. to which I will offer this difference Lessée for life with power to make Leases for thrée lives reserving rent makes a Lease for thrée lives reserving rent this reservation is good because it is but a Declaration of the Lease and of the rent
should be an exchaÌ„ge between them of the said Mannors because the Mannor of Gadmaston was the better Stroud covenanted with the Father and the Son to pay 1200 l. to the Father for the Demesnes of the said Mannor and Advowson and that at Michaelmas next insuing there should be a mutuall entry into the said Mannors and that in the mean time either of them should take the profits of their own MaÌ„nors and that they should deliver each to other their evidences and that Assurances should be made as Councel should advise the Plaintiff declare that they had performed all the Covenants which were to be performed on their part and that the Defendant had not paid the 1200 l. and that thereupon this action of Covenant was brought The Defendant protestando that the Plaintiff had performed the Covenants and had not produced their edidences c. for Plea saith that the Plaintiff after Michaelmas bargained and sold the Mannor of Gadmaston to J. S. and his Heirs upon which the Plaintiff demurs and he conceived that notwithstanding the sale after Mich. yet an action of Covenant lies for the 1200 l. but otherwise it had been if he had sold it before Mich. But it hath been objected that the money by the Covenant is to be payd pro the Mannor and therfore because the Defendant cannot have the Mannor he shall 〈◊〉 pâ—y the Money and for this 9. E. 4. 20. and 24. E. 3. 21. have been cited that pro implies a condition as pro servitio pro maritagio but these Cases do not resemble this case in reason because the fact to be done here rests upon an indiffinite time and the Defendant is to do the first Act the Defendant is bound to a certain time for the doing of this Act. For the first it is agreed that the Defendant shall pay 1200 l. and the Plaintiff agrees to make Assurances for this Mannor and that the Assurances should be made as Councel should devise and I conceive that the Defendant ought to procure the Councel to devise for mutuall Assurances ought to be made and either party ought to appoint what Assurances he would have and the one ought not to be a Carver to the other neither can one know what councel the other will have and upon this reason is the case 9. E. 4. 3. 4. and Plow 15. b. the Case of the Bell it shall be weighed by him who is to have the profit peradventure if it were in case of an Obligation to perform covenants there he ought to procure the Counsel for saving the penalty of the obligation but it is otherwise here in case of a Covenant Co. lib. 5. 22. b. 18. E. 3. 27. and 4. E. 3. 29. If a man be bound to be ready to levy a Fine such a day yet the other ought to bring the Writ of Covenant against him before that day for otherwise he cannot levy a fine But now the Law is altered for now fines are levied Writs of Covenant are sued out afterwards 17. E. 4. 2 per Pigot If I am bound to you in 20 l. to enfeoff you at such a day of such Land if you please to take the Feoffment you are bound to let me know your pleasure and here the Assurance is for the benefit of the Defendant and he cited Co. lib. 5. 23. and 7. E. 4. 13. 2. For the time this Assurance ought to be devised by Councel before Mich. or otherwise the Plaintiff shall be enforced to keep his Mannor all his life and shall be hindred of the sale of it for payment of his debts or other necessaries whatsoever And 17. E. 3. 1. liking ought to be shown in convenient time And it appears by the Articles that the time intended was before Michaelmas for every thing to be done by the Articles was to be done before Michaelmas Hill 37. Eliz. Rot. 99. B. R. between Mills and Parsons A man covenanted in consideration of 42 l. rent to be granted to him payable at Mich. and Lady day yearly to levy a fine of a Mannor to the use of c. and the assurance of the Rent is not made before Michaelmas and it was resolved that the Covenant was not performed for the grant of the Rent ought to be before Mich. for otherwise he could not have the benefit intended and cited also Dyer 347. and 20 Eliz. Dyer 361. and in this case there could be no execution of other Articles if the Councel did not devise them before Mich. But it hath been objected that the Plaintiff have not fully shown the performance of the Covenants of their part but only by implication albeit they have performed and they have not averred that the Defendant hath not devised Answ To which I answer that this is good enough but where I covenant to do an act upon a future contingent act to be done by another there I ougt to show it particularly but otherwise in this Case and this is for the benefit of the Defendant and therefore he ought to shew it and to this purpose is 3. E. 3 Fitz. Det. 157. and 18 E. 3. 4. c. Jones Iustice Suppose the Defendant had demanded the assurance after Mich and before the sale what shall be done Noy nothing can be done after Michaelmas and it was adjourned The same Term in the same Court. Sanders and others versus Meryton IN an Action of Covenant the case was this Amongst other Covenants in a certain Indenture made between Sanders and others to the Lessees and his two Lessors the Lessors covenant to discharge them of all Incumbrances done by them or any other person and the Plaintiff assign for breach that one of the Lessors had made a Lease and thereupon they brought this Action And Goldsmith moved in arrest of Iudgement that the breach was not well layd because it is onely layd to be done by one of them and the Covenant is to discharge them of incumbrances done by them which shall be intended joynt incumbrances Doderidge Iustice the Covenant goes aswell to Incumbrances done severally as joyntly for it is of all incumbrances done by them or any other person and so was the opinion of the other Iustices and therefore the exception was over-ruled The same Term in the same Court. Dickar versus Moland IN Replevin the case was thus A man made a Feoffment to the use of himselfe for life the remainder to his Son in taile which remainder over to the Defendant made conusance as Bayliff to the Son for 4 s. Rent due to him before the sayd time in which c. to wit 1. Jan. 18. Jac. which time was before the death of the Feoffor whereupon it was moved for the Plaintiff that the Avowry could not be good and Roll argued for the Defendant that it is good enough for the Ante predictum tempus quo c. is good enough and the scilicet is voyd for by this it appears that the Rent is due to
another 20. H. 6. 15. And a scilicet is but an Exposition of that which is once before and it shall not destroy the precedent matter but if it be contrary to it it is voyd Co. lib. 5. Knights case A scilicet shall not make an alteration of that which went before 15. Jac. B. R. Desmond and Iohnsons Case In a Trover and Conversion the Plaintiffe declared that he was possessed of the said goods 1 Jan. 15. Jac. and that Postea scil the first day of May hee in the yeare aforesaid lost them and that they came to the hands of the Defendant and upon issue joyned it was found for the Plaintiffe and this was moved in arrest of Judgement and by the Court the scil was agreed to be void and the Postea good and the like case was 17. Jac. in Debt The second Question is a man makes Conusance for Rent for him in remainder in taile and does not alledge the precise time when the Lessee for life died but onely that he died and I conceive that it is well enough 1. Because an Avowry which is in lieu of an action is a reall action and in reall actions no precise day need to be alledged 2. Because he avows for 4 s. rent due and the arreare to the remainder which implies that the Lessee for life is dead See 14. Eliz. Dyer The case of a person in one Arundalls case a man was Lessee for ninty years if the Lady Morley should so long live in an action brought by him as Lessee for years in his Declaration he did not averre that the Lady Morley was alive and yet awarded good Trin. 12. Jac. in Hord and Paramores case the defendant avowed as Heir of Sir John Arundell and alledged no time incertaine of the death of Sir John Arundell and yet awarded good for the reason aforesaid and therefore he prayed Judgment for the Avowant The same Terme in the same Court. Jenkin versus Vivian IN trespas Jermy for the Plaintiff took some exceptions to the Plea of the Intr. Hill 1. Car. Rot. 331. Defendant 1. That the Defendant claim common in Trigemore Moore ratione Vicinagii and doth not say a tempore cujus contrarium memoria hominum non existit 2. The Defendant alledgeth that he and all his Occupiers of Down-close had used to have common in the said Tridgemore Moore c. whereas he ought to have shown what estate they had in Down-close who have used to have this coÌ„mon Rol. there néed no prescriptioÌ„in this case no more then in a coÌ„mon appendant which case of a coÌ„mon appendaÌ„t was agreed by the whole Court for it is mixt 6. E. 4. 55. Co. lib. Intr. 625. tit trespas For the 2. exception I agree that if it be by way of prescription then it is not good as it is alledged here but if it be by way of custome as here it is then it is good for a custome goes to Land and a Prescription to persons Hill 11. Jac. Higgs brought an Action upon the Case for erecting of a new Mill and alledged a Custome that he and all the Inhabitants c. an exception was taken to it and it was there ruled that it was good because alledged by way of custome Co. lib. 6. Gatewards case and also Mich. 14. Jac. it way be alledged by way of custom as our case is and 15. E. 4. when it is by way of discharge it may be alledged in all Occupiers Jermy for the Plaintiff It cannot be a custom here for as it is in 23. Eliz. Dyer A custom cannot extend to a particular place and this was agreed by the whole Court But there is another exception he clayms common in Tridgemore Moore for cattle levant and couchant in Down-close and does not aver that these beasts were levant and couchant upon Down-close and per totam Curiam this ought to be averred and it was also agreed that in this case he ought to have prescribed But for the exception of all occupiers it was doubted but for the other exceptions Iudgment was given for the Plaintiff The same Term in the same Court. Chambers Case IT was said in this case that in debt upon a Recognizance acknowledged in Chancery or in any other Court the Defendant cannot demand Oyer of the condition for the Recognizance is not in Court as an obligation is when debt is brought upon it But if Debt be brought upon a Recognizance acknowledged in this Court then the Defendant may demand Oyer of the Recognizance The same Term in the same Court Harison versus Errington IN Error to reverse an Inditement of rescous and Riot taken in the County Palatine of Durham Bankes assigned the Errors whereof one was therâ— was a Warrant to three conjunctim divâ—sim to arrest the sayd Harison and two of them arrest him and therefore the Arrest was not well done for it ought to have been by one or all three and the reason is because it is a ministeriall act otherwise if it had been a judiciall act 14. H. 4. 34. 2. The Inditement of Riot was against three and the Iury found only one of them guilty of the â—â—â—ot this is a voyd verdict for one alone cannot make a riot like to the case in 11. H. 4. 2. Conspiracy against two and only one of them is found guilty it is voyd for one alone cannot conspire And at another day in the same Term Noy took other exceptions 1. Because the Inditement is Jurator pro Domino Rege presentant c. and doth not say that 12. Iurors presentant and peradventure but 11. did present 2. The names of the Iurors ought to have been certified for peradventure they are not probe legales homines but Villains and Outlawes 15. H. 4. 41. 3. It is sound that Rolson the Sheriff by vertue of a Writ directed to him came c. and upon this rescous was made by Harrison c. and it doth not appear what manner of Writ it was scilicet Elegit Capias ad satisfaciend on c. and if there were no Writ there can be no rescous and albeit he had a Writ yet if execution were done by vertue of another Writ which he had the Party may disobey it as if upon an habere facias seisinam the Sheriff makes a Warrant as upon a Capias the party is not bound to obey the Bayliffe if hee bee not a Bayliffe knowne but in case it appeares they were only Bayliffs pro hac Vice Nota that an Inditement before Coronâ—rs which found that the Earl of B. was felo de se was quasht because it did not appear that it was per sacramentum probor legal hominum And in the case of Sarum this Term an Inditement was quasht for the same cause The same Term in the same Court. Rochester versus Rickhouse IN a writ of Error to reverse a Judgement given in Ejectione firmae in Newcastle Banks assigned these errors 1. The Plaintiffe declares of
a Lease made de Burg. sine Tent. which is not good no more then in Ejectione firmae de Mess sive Tent. 2. Because the Judgement is not quod capitur as it ought to be because it is vi armis 3. The judgement is Ideo concessum est where it ought to be consideratus est and for these Errors the Judgement was reversed And the same day another Judgement between Bell and Margery Strongury was reversed for the same causes The same Term in the same Court. Petit versus Robinson IN Error to reverse a Iudgment given in C. B. in a Replevin there Jermy for the Plaintiff assigned two Errors 1. It appears that after the Writ and before the triall it was coram Justiciar Dic. Domini Regis and there was not any speech of any King but of King James before and there is no speech of his demise and therefore this shall be intended before the Iustices of King James which cannot be 2. Because the Nisi prius is certified to be tried before Francisco Harvey Mill. uno Justiciar c. the Postea returned is before Francisco Harvey Arm. argued so there was no such Iudge of Nisi prius as Francis Harvey Banks for the Defendant I conceive the first errors to be because the adjournment was per br Dom. Reg. and King James was named before so that the objection may be that it shall be intended the Writ of Adjournment of King James which cannot be but I conceive the Writ is generall and shall not be intended â—hat it can be adjourned by the Kings Writ who was dead before and the Clerk of the Assises who certified it is bound to take notice of the Kings death 37. H. 6. 28. and also the Record is not per br Dic. Dom. Regis but per br Domini Regis generally And for the second I conceive it is no error and if it be error then if the Certificate be not according to the Copy out of which the Clerke certifies it shall be amended 22. E. 4 22. 35. H. 6. 23. b. Co. lib. 8. 136. Blackmores case which is a stronger case then this But it hath been objected that the Record is certified by the Iustices and now there can be no averment to the contrary but I conceive that this Court may send to the Clark of the Assizes to amend it and those objections were over-ruled in C. B. in the same case Doderidge Iustice I conceive that notwithstanding these exceptions the Iudgement ought to be affirmed for as to the first the Court is bound to take notice of the demise of the King and therefore it shall be intended the King that now is and so the Writ of adâ—ournment good enough in Dyer King Henry 8. made a Patent and it was Eâ—ricus Dei gratia c. where it should be Henricus and yet the Patent good so in a Writ to the Bishop the subscription is Episcop Norw this is good enough for the Bishop of Norwich is very well known And for the other I conceive it is not well alledged because it is not showne whether he were a Knight at the time of the Certificate or not and so it may well stand together that he was a Knight for he might be an Esquire at the time of the triall and before the Record certified might be made Knight Jones Iustice to the same intent and that we ought to take notice of the demise of the King therefore it shall be intended of the Writ of adjournment of the King which now is and therefore it is no error and yet if it were it were amendable Whitlock Iustice agreed and therefore the Iudgement was affirmed by the whole Court The same Term in the same Court. Crabbe and his Wife versus Tooker IN Covenant betweene Walter Crabbe and Anne his Wife against Tooker the covenant upon which the breach was layd was this Tooker the Defendant covenanted with Tooker his Son and Anne Slade one of the Plaintiffs whom he intended to marry to give them their meat and drink in his house and if any discontent should happen between the Father and Son so that he and his Wife Anne should disagree to dwell with Tooker the Father then they should have 6. Beasts gates c. Tooker the Son died Anne disagree to dwell with Tooker the Father and marries with Crabbe who with hâ—s Wife Anne brings this Action and Taylor argued for the Planitiff that the Action lies for albeit the Covenant be in the conjunctive if they disagree yet it shall have a disjunctive interpretation as where a man covenant to levy a fine to one and his heirs if he dies the Covenantor may levy a fine to his Heirs and Hill and Granges case in Plow Two Tenants in common grant a rent this shall be taken for severall Rents and Co. lib. 5. Slingesbyes case also the Wife is party to this covenant and she must either have remedy upon this covenant after the death of her Husband or not at all for she cannot disagree in the life time of her Husband per que c. And it was agreed on the other side that there ought to be a dislike between all joyntly the Father the Son and the Wife and now one of them being dead the covenant is discharged like to the case put in Brudenels case Co. lib. 5. If Administration be grant during the minority of 3 if one of them dies the administration ceaseth and 31. Eliz. in C. B. A Lease was made to three and the Lessor grants to them to be dispunishable of Wast quamdiu cohabitarent one of them dies and it was resolved that now they shall be liable to wast Also the Bar is not bone for it is pleaded that Discordia orta fuit and doth not shew what manner of discord this was and therefore not good as 3 H 6. In Annuity brought Pro concilio c. he ought to shew for what manner of Councel it was Whitlock Justice was of opinion for the Plaintiff and that this Covenant extends to the Wife and that upon equall construction because it comes in place of the first Covenant and this was intended for the benefit of the Wife as well after the death of the Husband as before Jones Justice was of the contrary opinion and that the second covenant was a severall covenant from the first and that the disagreement is to be made by all three joyntly and that when one dies the Covenant is gone 2. Eliz. Dyer A man will that A. B. and C. his Feoffees shall sell his Land B. dies now the Authority is determined The Lord Gray committed the custody of his Son to four one of them dies the authority is gone and in this case there is no matter of interest but an agreement and in such a case as this is a Feme covert hath a will albeit she hath no legall will but in this case there ought to be a disagreement of both and
case for there by the word Felony it was manifest what Felony he intended by the circumstances of the speech to wit that he ment such felony for which he might lose his life But the words here being generall of Felony it may be intended as well of a Mayhem aâ— of any other Felony for in an appeal of Mayhem he is arraigned as Felo Domici Regis 40. Ass and the other case of 44. Eliz. I do arrest him of flat Felony is not consonant with the reason of this case for there by the arrest his liberty is taken away but in this case there is no restraint and it is very hard to make these cases agree together for words are as variable as the faces of men c. Jones Justice agreed and he took it for a generall rule that where words carry a double sense and there is nothing to guide the sense more one way then another there the words are not actionable for finis est legis dirimire lites And therefore if one faith of another that he hath the Pox because the sense is ambiguous it shâ—ll be interpreted in mitiori sensu and therefore the words are not actionable to if one sayes of another that he hath stolen his Apples or his Corn because they may be Apples from the tree or Corn in the field the taking whereof is no felony but it was adjudged in the Common-Pleas when I was there that these words viz. Thou art a Thief and hast stolen my Corn are actionable by reason of the addition of the word Thiefe So that the speaking of words of a double sense are not actionable unlesse ex antecedentibus or consequentibus it can be collected that the words were spoken in pejori sensu Then the words in this case I charge you with Felony peradventure intend such a Felony for which he shall recover damages only which is Mayhem and therefore no action will lie These words Thou art forsworn are not actionable because forswearing may be in ordinary communication or in a Court of Justice and it shall be taken in mitiori sensu but if he sayes Thou art forsworn in a Court of Record it is actionable and if in this case he had charged him with Felony and sayd further that he had stolen c. they would have been actionable but here he only charges him with Felony which is an ambiguous word and also it is no direct affirmation and therefore not actionable and Iudgement was given Quod quaerens nil capiat per Billam The same Term in the same Court Goods Case GOod and his Wife brought a Writ of Error upon a Judgement given in the Court of the Castle of Windsor in an Action of Debt there which was entered Trin. Mich. 2 Car. Rot. 119. 120. and two Errors were assigned 1. Because the Judgement there is given in these words ideo consideratum ad judicatum assessum est whereas it ought to be onely by the word consideratum and the Judgement being the act of the Court the Law is precise in it and therefore it hath been resolved that a Judgement given by the word concessum is not good but it ought to be by the word consideratum 2. The costs ex incremento are not said to be given ad petitionem quaerentis aâ— it ought to be for beneficium nemini obt ruditur and therefore it hath been resolved in this Court that an alien born shall not have medietatem linguae if he does not request it and as to this it was answered of the other side that costs ought alwayes to be assâ—ssed ex petitione quaerentis and albeit here the request of the Plaintiff was not precisely put to increase of the costs yet at the beginning of the Judgement it is said Ideo ad petitionem quaerentis consâ—â—eratum c. And that costs shall be given ex in cremento so that this request goes to all the Sentence and by the unanimous opinion of all the Court the Judgement was reversed for both the Errourrs for 1. Ideo considerat adjudicat c. is not good the Judgement being the Act of the Court and the Law hath appointed in what words it shall be given and if other words should be suffered great incertainty and confusion would ensue and needâ—esse verbosity is the mother of difficulty 2. The increase of costs ought to be given ad petitionem quaerentis and the words ad petitionem quaerentis being misplaced will not supply this defect and Dammages ex incremento is alwayes given ad petitionem quaerent for as Bracton saith Omne judicium est trinus actus trium personarum judicis actoris rei and if in this case the usuall form should not be observed all would be in a confusion and in as much as the words are misplaced it is as if they had not been put in at all and therefore void like to a case put in Walsinghams case in Plowden where an averrement misplaced is as if there were none In this case the Judgement was reversed and Trin. 3 Car. in B. B. intr Hill 2 Car. Rot 849. a judgement was reversed because it was Ideo concessum consideratum est FINIS THE TABLE OF THE PRINCIPALL MATERS Contained in this BOOK A. ACceptance 113 Of a second Lease determines the first 9 Action 179 Where the Master shall be charged in an Action for the act of the Servant e contr 143 Action upon the case for words 35 36. 139. 140. 128 129. 148. 150. 177. 180. 184. 187. 207. 210. Action upon the case 116. 144. for pulling down a house 15 Against an Officer for his neglect 27 For laying too much waight wherby goods in another mans possession are lost 46 For stopping of a Water-course 166 Accessaries 107 Adjournment 33 Administration  not avoided by Averment 37. granted by a Lay-man 160 Administrators  Of the Wise shall have a Lease setled on the Wife not the Husband 106 Admittance 125 What the Heir may do before admittance 39 upon a surrender by a Disseisor 71 Addition  Of matter of Ornament shall not avoid a grant 57 Advowson 23 Agreement 134 construed according to the intention of the parties 182 Where to be joynt where severall 204 Alien  Where he may purchase where not 36 Amendment 21. 128. 203 204. Of the Postea and made according to the Pannel and the Record 102 Of a Record after the Record removed and Errour assigned 196 Annuity 87. 86 Pro consilio 135 Appropriation 144 145 Appeal  Of Mayhme 115 Plea in it 115 Assesment  by the major part of Parishoners shall bind the rest 197 Assumpsit 148. 182 183. 193. 206 against an Executor of an Assumpsit in the life of the Testator 30 31 32. generall indebitat Assumpsit 31 without consideration is nudum pactum 178 What shal be a good consideration to ground Assumpsit 183 184. Assise 111. Assets where a Lease for years to a Copyholder in the hand of
my Furze And after Verdict for the Plaintiff it was moved in Arrest of Iudgment thâ—t these words were not actionable But it wâ—s said on the other side that to say thou art a Theef is actionable and the subsequent words are in the Copulative and enure as a confirmation of the precedent words But if it had been for Thou hast stoln my Furze this had been â—n explanation of the precedent words and therfore in that case the action would not have been And it was answered and resolved by the Court that the word and in some cases shall be taken as the word for and so it shall be in this case and therfore adjudged that the action lies Mich. 22. Jac. In the Star Chamber TWo men came Ore tenus into the Star Chamber for stealing of the Kings Deer and were fined a 100 l. a peece and three years Imprisonment unlesse it would please he King to release them sooner and before Fines in the Star Chamber for killing the Kings Deer they should be released of their Imprisonment to be bound to their good behaviour And it was observed by the Attorney-generall that the offence was the greater in regard that the King had but one darling pleasure and yet they would offend him in that And it was said by some of the Court that it was a great folly and madnesse in the Defendants to hazard themselves in such a manner for a thing of so small value as a Deer was The Lord President said that Mr. Attorney was the best Keeper the King had of his Parks in regard he brings the Offenders into this Court to be punished The Lord Keeper said that the Defendants in such a case being brought Ore tenus â—re not allowed to speak by their Counsell and yet these men have had their Counsell but it was Peters Counsellors meaning their sorrow and contrition at the Bar which much moved him so that if his vete might prevail he would set but 20 l. fine upon them In the same Term in the same Court THe Lord Morley and Sir Richard Mollineax being beyond Sea their Sollicitor in their names exhibited a scandalous Bill in the Star Chamber against the Bishop of Chichister and after their return this continued so for three years without any disclaiming therof by them and now the matter being questioned they said that it was not done with their privity But because they had not disclaimed the Fact before they were fined a 100 l. to the King and a 100 l. to the Bishop for Damages and the Bill was to be taken of the File The same Term in the same Court. Lewes Plaintiff versus Jeoffreys and others Defendants THe Plaintiffs Brother had been a Suitor to a woman which matter proceeded to a Contract and afterwards the Defendant Jeoffreys hapned to be a Suitor to her also wherupon being Rivalls they fell out and the Plaintiffs Brother called the Defendant Jackanapes which was taken very ill by the Defendant being a Iustice of Peace in the County of Worcester and the other being but a mean man in respect of him so that he told him that if he would meet him on Horse-back he would fight with him afterwards one of the Sons of the Defendant went to the said Brother being upon his own Land and gave him a mortall wound wherupon a friend on the behalf of the party wounded came to the Defendant being a Iustice of Peace and brought him a peece of his Skull to the end that his Son should be forth coming at the next Assises declaring to him the danger of death the man was in wherupon the Defendant took a Recognisance of 10 l. of his Son and of his sureties of 5 l. a peece to answer this at the next Assise And in the mean time the party died of the said wound and the Son did not appear at the Assises and the Iudges of Assise fined the Defendant 100 l. for taking such slender security for the appearance of his Son which was paid and yet notwithstanding the Defendant was fined 200 l. more for this offence and also 200 l. for his misdemeanor in his challenge albeit the Defendant A Challenge fined in the Star Chamber was of the age of 63 years and so it seems that he intended to fight with him But he being a Iustice of Peace who is Conservator pacis he did against his oath to do any thing which may tend to the breach of the Peace And for the other matter it was said by the Court that the Defendant being Father to the offendor it had been better for him to have referred this matter to another Iustice of Peace or at least to have had the assistance of another And the party being in such great danger of death his son was not bailable Hillary 1. Car. In the Kings Bench. Bowyer versus Rivet THe case was thus Sir William Bowyer 12. Jac. recovered against Sir Thomas Rivet in an Action of debt Sir William made his wife his Exceutrix and died the wife made Bowyer her Executor and died then Sir Thomas Rivet died Bowyer brought a Scire facias to have execution upon the Iugment against Sir Thomas Rivet the younger as Heir apparant to the Land to him descended from Sir Thomas Rivet who pleaded Riens per descent from Sir Thomas Rivet and it was found that he had two acres and a half of Land by discent and it was prayed by Goldsmith that Iudgment might be given against Sir Thomas Rivet generally for he said that this false Plea shall charge him and his own Lands and cited Plowden 440. where in debt against an Heir upon his false Plea his own Lands shall become liable to the debt and Co. lib. 3. 11. b. Sir William Herberts case where the case was upon a Scire facias against the Heir as it is in this case But on the other part it was argued by Richardson the Kings Serjeant Banks and all the Iustices that Execution shall be awarded in no other manner against the Heir then it should be against his Ancestor or other Purchasor to wit of a Moyety of that which he had by discent for as much as in this case he cannot be to this purpose charged as Heir but he ought to be charged as Ter-tenant and as a Purchasor and a Purchasor shall never hurt himself but his false Plea And Banks argued that the Heir in this case is charged as a Purchasor and the false Plea of a Purchasor shall never charge himself 33 E. 3. Fitz. Execution 162. and 6 E 3. 15. and that in this case he is charged as Ter-tenant appears by three reasons 1. Debt will not lye against an Heir but where he is bound as Heir but in this case Execution is to be sued against him as another Ter-tenant Dyer 271. 11 E. 3. 15. and in 27 H. 6. Execution 135. and Co. lib. 3. 12. b. That in Iudgment upon Debt or Recognisance the Heir is charged and