them the word Iudas is material here for loquendum ut vulgus If he had said you have plaid the Iudas with your Clyent without doubt is actionable Which Richardson also agreed and said if one says of an Attorney that hes a false Attorney an action lies Sed adjournatur Hawes's Case IN Dower the Defendant pleads ne unque seise que dower It was found by the Iury that the Husband was seised and died seised and assess dammages to the Plaintiff generally And it was moved in arrest of Iudgment because that the Iurors did not enquire of the value of the land and then ultra valorem terrae tax dammages as much as is the usual course as the Prothonatories informed the Court. For the Statute of Merton gives dammages to the Wife scil valorem terrae And the Statute of Glouc. cap. 1. gives costs of sute But by the Court Iudgement was given for the Plaintiff although the dammages are given generally and certainly intended for the value of the Land And there might be in the Case a Writ of Error Hil. 5. Car. Com. Banc. Simcocks against Hussey SImcocks brought waste against Hussey for cutting 120 Oakes and the Iury upon nul wast pleaded found him guilty of cutting 20 in such a field and so sparsim in other fields which was returned upon the Postea but nothing said of the other 20. where in truth the Iury found him not guilty of them but the Clark of Assizes took no notice of that By the Court If the Clark had taken notice there might have been an amendment by them But here they gave direction to attend the Iudge of Assize to examine the truth of it And if they could procure the Clarks to certifie the residue they would beleeve it Dower DOwer was brought for the moiety of 45 acres of land and for part non tenure was pleaded which was found for the Plaintiff and for other part Ioyntenancy which was after imparlance Whereupon the Plaintiff demurred and Bramston prayed Iudgement and answered farther for that that it was after imparlance and cited one Doctor Waterhouses case in Dower where it was adjudged that non-tenure after imparlance was not a plea And by the same reason shall not joyntenancy be 32 H. 6. 29. And by the Court it was adjudged quod respondeat ouster But otherwise it would have been if there had been a special imparlance tam ad breve quam ad narrationem And it was prayed to have Iudgement upon the verdict And by the Court it was said that they should have Iudgement And that there might be two Iudgements in this action for the several parts of the land Sir Francis Worthly against Sir Thomas Savill HE brought an action against Sir Thomas Savill for batterie In which it was found for the Plaintiff in not guilty pleaded and 3100 l. damages was given Which verdict was last Term. And in this Term it was shewn to the Court that the Declaration entred upon the imparlance roll was without day moneth and year in which the battery was committed Which was observed by the Atturneys and Counsel of the other part and that a blank was left for it But afterwards in the time of this vacation in the night time the Key of the Treasury being privily obtained by a false message from Mr. Brownlow Prothonotary the record was amended and some things were interlined to make it agree with the Issue Roll which was perfect And these things were affirmed by severall affidavits Whereupon Atthowe moved that those parties privie to this practice might be punisht and that the record might be brought in Court and made in statu quo prius Crew on the other side demanded Iudgement for the Plaintiff for whether there is an imparlance Roll or no. If none then the matter is discontinued and that ayded by the Statute If you will have an Imparlance Roll then I think these omissions are amendable by the Clarkes although after verdict Harvey The Course of the Court is for I am not ashamed to declare that I was a Clark for 6 years in Brownlowes Office If the Declaration was with a blank and given to the Attourney of the other side if in the next term the Atturneys of both sides agrée upon the Issue Roll Vpon this agreement the Clark for the Plaintiff had always power to amend the Declaration Because that by the acceptance of the other side there was an assent Richardson The imparlance Roll is the original Roll and ground for the Issue Roll which is the Record of the Court And I agrée that it is reason to amend the nisi prius Roll. Harvey gave an excellent reason whereupon the Pregnotaries were demanded what was the course of the Court Brownlow Gulston and Moyle all agréed that the course is That an imparlance roll may be amended if no recordaâ—uâ— That if no recordatur or rule be to the contrary and a Declaration delivered with blanks the Clarks have always amended it And Brownlow shewed where the book of 4 E. 4. was objected to the contrary and he had séen the Record and there was a recordatur granted Richardson Debt is brought against one as heir and there is omitted ad quam quidem solutionem haeredes suas oblig shall that be amended And it was said by all the Pregnotaries it should And Moyle said that in 13 Iac. there was a case between Parker and Parker upon a trover and conversion and the Imparlance Roll was entred with a blank as here and upon non-guilty pleaded it was found for the Plaintiff and I fear it will be mended By the Court this difference will reconcile all the books scil where there is a recordatur and where not It was agreed by some one of the Iudges that a recordatur might be granted out of the Court. And so Brownlow cited a president Pas 4 E. 4. rot 94. to the same purpose And so Iudgement was given for the Plaintiff Starkeys Case before IVdge Yelverton now being in Court the Counsel of the Plaintiff prayed his opinion and shewed the reasons given before to have Iudgement And Yelverton said that the word Iudas here did not bear an action It was two of the Apostles names and the betrayer Iudas was a Traytor to Heaven and therefore this reason should not be drawn to earth to cause Actions between men But for the word common Barrettor being spoken of a common person is not actionable until conviction he is not punishable for it If he called him convicted Barrettor Convicted Barrettor to a common person is actionable it is actionable But being spoken of an Atturney or an Officer of Iustice it is actionable Littleton tells us what they are they are meant stirrers up of unjust sutes which is a grand offence in an Atturney And they put the case of Sir Miles Fleetwood One called him the Kings Deceiver which was adjudged actionable and that it ought to be understood of his Office And for that in
put off till the next day by nine in the morning Collins against Thoroughgood AN action of Covenant was brought against the Executor and the breach assigned for default of reparation committed in the time of the Executor and damages were assessed And the question was moved by Atthow whether the Iudgement shall be de bonis propriis or de bonis Testatoris And upon view of presidents it was adjudged that it shall be de bonis Testatoris For this is the Testators Covenant and obliges the Executor as representing him And therefore he ought to be sued by that name Waters against Thomson IN an action of slander for calling him Bankrupt Iudgement was given for the Plaintiff And it was afterwards moved in arrest of Iudgement Because that in the Declaration it is said that he was a seller of Wool And Serjeant Ward said because he did not allege that he was a Merchant that it would not hold But the Court over-ruled him Tomkin's Case A Man cannot plead a former Iudgement had against the Plaintiff in an action brought by the Plaintiff against the Defendant But Outlawry he may Which was not denyed Baker against Webberly THat if a mans Dog runs at the Sheep and kills them not with his consent there will no action lie But otherwise if with his consent Recovereis suffer per gardens of the lands of the Infant MEmorandum That the 26 Decemb. 21 Iac. that letters under the privy signet and sign Mannual came unto the Iudges of the Com-Pleas importing that the King had been humbly petitioned by Mountioy Blunt being under the age of 21 yoars as well by himself as his kinred and Feoffees into whose custody the late deceased Earl of Devonshire did commit his estate in trust that he would declare unto us his liking that he might be permitted to suffer a Common recovery of the Mannor of Wansled for payment of his debts and further advancement of his means to the use of the Duke of Buckingham which his Majestie by his said Letter did accordingly Now although the Iudges did never hold such Recoveries unlawfull or void in Law yet divers motions in the like kind have been refused as holding it very inconvenient But inconveniencies are best discerned by circumstances and therfore my L. Chief Iustice Richardson acquainting the other Iustices therewith it was determined that he should send for the young Gentleman and examine him sole and secret of the reasons of this Recovery and of his own free-will Which I did and being of 18 years of age or thereabouts suffered me of his own good liking that he did conceive it to be necessary for his estate yet not therwith contented the Chief Iustice caused the Earl of Southampton the L. Davers and Mr. Wakeman the persons to whom the world knew he his Estate was committed in trust and that they had worthily performed and calling them in an open Court and questioning with them they confessed to us all that it was necessary for the young Gentleman and for his good to part with this thing and that therefore they had made means to his Majesty for this Letter in that behalf whereupon the Recovery was passed openly at the Bar the last day of Michaelmas Term against Mr. Blunt in person and the Earl of Southampton the Lord Daverâ—… and Mr. Wakeman were admitted his Guardians Brownlow and Moyle Prothonotaries shewed Presidents of the like Recoveries against Infants M. 23 H. 8. rot 441. et P. 38 H. 8 rot 128. Tr. 28 El. rot 17 et M. 26 et 27 El. rot 45. 572 P. 42 Eliz. rot 1. 5. 63 44. 45 69 70 89 91 94 P. 32 El. rot 60 T. 38 El. rot 41 44 40 El. rot 62. 124 112 M. 40 et 41 El. rot 13 M. 34 et 35 El. rot 166. per Zouch M. 39 40 Eliz. rot 82. 173. M. 41 42 El. rot 24. 106. et 72 T. 42. El. rot 20. M. 42 et 43 El. rot 173. Chamberlines Case HE brought an Action upon the Statute of Hue and Cry and after Issue joyned and entred The Record was that the Robbery was done 30 Octob. It was ordered by the Court of Common Pleas that the Record shall be amended and made the 30th of September upon the Affidavit of the Attorney for the Plaintiff that he had given direction accordingly And shews to the Court the Book of the Office Male against Kett. HE brought an Action against Kett for these words Thou hast stollen my Corn out of my Barn and verdict was given for the Plaintiff And after verdict it was moved in arrest of Iudgement That perchance the Corn was not of the value of a penny Yet Iudgement was given for the Plaintiff For it is felony although it is not great Hitcham against Cason before NOw they urged 5 Eccles If thou see the oppression of the poor and perverting of Iudgement Perverting of Iudgement is the Oppression But then he did not again manifest Injustice It was objected that he might give erroneous Iudgement and that is Injustice If they are taken all alike it is clear that they are actionable and the party himself ought not to interpret but the Iudge The Case between Palmer and Boyer M. 37 38 El. He hath as much Law as a Iackanapes spolton of Palmer being a Lawyer and adjudged actionable And they were spoken to disgrace him in his profession 7 Iac. Thou a Barrester thou a Barrettor and thou durst not shew thy face Thou study the Law thou a Dunce actionable upon he same reason Mich. 14 Iac. Com. Banc. Beck against Barneby Spoken of an Attorney Thou art a Common maintainer of Sutes and a Champerter c. It was objected there that it was lawfull for an Attorney to maintain sutes Yet because he said Champertor it was actionable And Trin. 12 Iac. Com Banc. Yeardlies case He said of the Plaintiff being an Attorney Your Attorney is a bribing Knave and hath taken 10 l. of you to cousen me Answered that the words shall be intended of him as Attorney and so actionable One exhibites a Petition where it was first against the Lord chief Baron In which he said Tanfield is a great Oppressor of the Country and did remove the Boundaries between his Land and mine And it was adjudged actionable Pasc 4 Iac. Banc. Roy. Master Kebbe is a Basket Iustice and a partial Iustice and I 'll give him 5 l. a year for all Gifts that are brought to him for Injustice done And adjudged actionable And the word Partial Iustice bears an Action Hil. 40 Car. Kings Bench. Denson is a sweet Iustice of peace who gave a Warrant to apprehend I. S. and sent him notice of it Is actionable For it is a misbehaviour in a Iustice of Peace to do so H. 6. Iac. Com. Banc. rot 1159. Lonsman against Peck The Plaintiff shews that he had been impannelled upon several Iuries upon life and death and the Defendant said Thou art a Iury man and
case against Iohn Culpepper and Anne his wife for an Assumpsit made by Anne dum sola fuit And afterwards the Assumpsion is found by verdict And Davenport moved in arrest of Iudgement for that that there was not a sufficient consideration for whereas the wife was Administratrix to Goddard her first husband who was indebted to the Plaintiff for so the Plaintiff declared and that he intended to sue the wife as Administratrix and that the wife requested him that two might surveigh the account between her husband and the Plaintiff to which the Plaintiff assented and that two surveighed it accordingly when it appeared that the debt was due and that then the fore-acknowledgement of her husband to be so indebted In consideration of the premises assumed to pay the debt part at Michaelmas and the other part at a convenient time after But there is noe consideration to make her chargeable de bonis propriis as their purpose is to make her by their Declaration against her and not as Administratrix For it is not mentioned that in consideration that she had assetts or that the Plaintiff would forbear to sue her or otherwise c. So that the debt of her husband by the Assumpsit cannot be changed to her own debt And it is not like Banes case Co. Re. 9. 94. For there the Plaintiff was to forbear to sue him and for that assets is not requisite The like is Beeches case 15 Eliz. in that Court reported New Entries fol. 2. Richardson of the same opinion because there is not any consideration nought but the assent of the wise to the accompt which will hardly charge her de bonis propriis See Co. lib. 6 41. Pasch 3. Car. Com Banc. Thomas Ux. against Thomas Newark THomas and his wife brought Trespass against Tho. Newark for beating of the wife and taking of the goods of the husband only ad damnum ipsorum and afterwards the matter was found by verdict and it was moved that the Declaration was nought for the wife cannot joyn for a Trespass done to the husband alone but in a trespass done to the wife alone the husband ought to joyn and for that the Court awarded quod quereâ—… nil capiat per bill But it was said by Crook and Yelverton if baâ—…on and feme bring trespass for the beating the wife the husband may declare for a trespass done to him ad damnum ipsius c. But it was said by Hutton if two joyn in trespass for taking goods whereof they were joyntly possest one of them in an action cannot declare for taking of the goods of him alone Which was agreed by Crook c. Blackhall against Thursby ONe Blackhall petitions in the Court of Requests to compel Thursby Lord of the Mannor to admit him to a Copyhold surrendred to his use which he refused before to doe And also forbad one to whom the Copyhold was demised by Blackhall to pay him any rent Vpon which it was decreed that Thursby should admit him to a Messuage and 17 acres whereas the Copy was of a Messuage and 3 acres and also that Thursby should set forth the bounds of the Copyhold which he had defaced and removed and that he pay the rent Hitcham moved for a prohibition for he said it was more just for a Court of Equity to compel a Lord to admit his Copyholder for before admittance he cannot have an action and he has no remedy at the Common-law And so if a Copyholder removes or defaces the bounds of the Copyhold it is proper for such a Court to design them To which the Court agréed but they would not compell him to admit him to the Messuage and 17 acres where the Copy is but of thrée acres which would be unjust unless that the 3 would comprehend the other 14. But parcel or not parcel of Copyhold belongs to the Common-law to try But the Court denied the prohibition for that cause for the Iustices said that that admittance to 14 acres does not bind the title but it sets at liberty as to that But if they had decreed that he should be admitted and also enjoy it to him and his heirs then the Decree had been unjust and a prohibition for that But for part of the Decree which touch'd the rent It was agreed by the Court if Thursby receive the rents the decree was just that he should pay it but if he did not receive the rents nor take the profits but only forbad the Tenant to pay the rent and he would save him harmless Then if it was decreed that he should pay the rent a prohibition to that part should be granted And Harvey Iustice in that case said That he knew it to be adjudg'd that a surrender with the appurtenances would pass land And of a Messuage and 3 acres would pass more acres if divers Copies successively have been so And upon questioning of Blackhall by the Chief Iustice for saying that after there was a Decree in the Court of Equity an Order of the Common-bench could not supersede the Execution of it And Iustice Yelverton declared That when he was in the circuit at York a poor man who sued before him in forma pauperis was arrested by process from the Council of York And that upon notice of it he commanded a writ of privilege to be made for him but the Officer of the Council would not obey it upon which he claps in a Habeas Corpus returnable at a certain hour and the Officer came without the body and refused to deliver the prisoner and said that he had not power to controll the process of the Council And upon that he set a fine upon him of 40 l. and his Act was approv'd on by the whole Court. For every one that sues before the Assize ought to have free egress and regress and staying while his business was ended And afterwards the Lord President said to Yelverton that he would complain to the King and Privy Council of him for that he had transgressed his authority and power And the Court said that they would justifie it c. Smith against Doctor Clay HEnden moved for Doctor Clay Viccar of Hallifax that a prohibition might be granted to the High Commissioners of York For that that these Articles by one Smith were preferred against him c. First that he read the holy Bible in an irreverent and undecent manner to the scandal of the whole Congregation Secondly that he did not doe his duty in preaching but against his Oath and the Ecclesiastical Canon had neglected for sundry mornings to preach Thirdly that he took the Cups and other Vessels of the Church consecrated to holy use and employed them in his own house and put barm in the Cups that they were so polluted that the communicants of the Parish were loath to drink out of them Fourthly that he did not observe the last fast proclaimed upon the Wednesday but on the Thursday because it was an Holyday
the Iustices it should be a confirmation during the life of the Feme If Iudgement be given in an action at Common law the Chancellor cannot alter or meddle with the Iudgement given against him But he may proceed against the Person for a corrupt conscience because he took advantage of the Law against his conscience quod nota c. William Watsons Case AN action of Battery was brought against William Watson for battery committed by him insimul cum I. Watson And Iudgment was given against him and dammages and levyed and payed to the Plaintiff And after in another Action which was brought against I. Watson and he also was found guilty And Diggs moved in arrest of Iudgement for that that he had recoveted and had execution against W. Watson But by the Court Where several actions are brought against two for the same battery and a recovery is had against the one and an action is brought against the other and that found also The Court can never intend that to be the same Battery Because he may commit 20 Batteries in one day But if he may take any advantage of the first recovery it ought to be shewed in pleading But if there be but one Original against both and several Declarations produced when he hath recovered he hath dammages against the other But if he recover against the other before he had execution against the first Then he had his election to have whether dammages given against the first or the dammages given against the other And Coo. lib. 11.56 Heydons Case by Richardson is to the same effect Eve against Wright Eve brought a Replevin against Wright who was known as Bayliff to the Lord Peters For that the Lord Peters had a Court Léet within the Mannor of Writtle And that he distreined for an amerciament upon the Plaintiff at that Court Leet of the Lord c. And upon issue that he had not such a Léet The Iurors found that the Lord Peters at the time when c. had a Leet within the Mannor and that the Tenants ought to come to his Léet But also they found that the Warden and Fellows of New College in Oxford had a Rectory also within the Mannor of Writtle called the Roman fee And that they time out of mind c. had a Léet within that Rectory and that the Plaintiff is a Resiant within the Roman fee But whether upon the whole matter the Lord Peters had a Leet upon all the Resiants within the Mannor of Writtle they prayed the discretion of the Court in that And it was said by Richardson That the matter is found expresly for the Lord Peters And if the Court séemed to be agréed then he assess'd dammages and that Verdict was clearly for the Defendant And if the matter in Law might well come in question as the Iurors intend scilicet whether a Person will be compellable to two Léets yet Iudgement shall be given for the Lord Peters For it might be a general Leet of the Hundred or a special Leet within a Mannor within the Hundred As it is expresly 21 E. 3.34 And the Case of the Countess of Northumberland and Devonshire was in this Court before this time agreed Crook Iustice 18 Iac. Banc. Reg. One Cooks and Sables Case there was agreed to this purpose Though a man is not compellable to be attendant to two Leets although they be held at several daies Yet by that Custom they may be attendant Like to Walgraves Case which was adjudged in this Court That a Mannor may be held by Copy of another And that the Lord of a Copyhold-Mannor may grant Copyhold And this Iudgement was affirmed good in the Kings Bench in a Writ of Error For Custome hath abolisht that And the opinion of the Court was That he cannot be attendant on two Leets if they be held at several daies It was said by Richardson That the Lord of the Roman fee shall not be Subject to the Leet of the Lord Peters As appears by 21 E. 3.33 And Crook said That that Book was good Law For there when the party is amerced in the one Court he cannot be punished in the other Court for the same offence And afterwards Richadson and the whole Court said That he himself shall be subject to another Court for his resiance or otherwise he should be exempt from every Leet Humbletons Case MOre of this you have before Now they afterwards come and the Case was recited in some thing different from the former scilicet That there being such a Communication as afore the consideration was That Palmer having now brought an Action against him he should defend the said Sute in maintenance of their Tytle of Common and that immediatly after Iudgement given he should pay him half his costs or 40 l. Vpon which this Assumpsit is brought And the Issue was Whether he defended the Sute in maintenance of their Title of Common and it was found against the Defendant And by the whole Court the Plaintiff had well declared the consideration For the words are that he maintain the Title against Palmer for the promise was after the acttion brought And the Plaintiff is not to prescribe what Plea hee 'll plead but that he defend that Sute And then when Palmer is not owner of the Soyle as appears in the evidence in the Kings Bench. And so if a pretence to common fail he should be punisht for a Trespass where he ought not Palmer being an Introcer upon the King And every Commoner may break the Common if it be inclosed Although he does not put cattel in immediately But he may infriender by the other Commoners or his Tenents and his Title of Common only excuses him of the Trespass And also the Iury had found that it was in maintenance of the Title of Common expresly And so Iudgement was entred for the Plaintiff pleno consensu Dorothy Owen against Owen Price DOrothy Owen brought an action of the Case against Owen Price upon a trover of Conversion of one Load of Wheat and one other of Barley within the Rectory of Broody And upon not guilty the Iury found a special Verdict to this effect viz. Marmaduke Bishop of St. Davies seised of the Rectory of Broody and a Mannor parcell of the Bishoprick 3 August 27 El. makes a Lease of them being formerly demised to Anne-Davyes and the two Daughters P. and C. habendum a die datus for their lives successively viz. to A. and her Assigns for her life rendring the antient rent and afterwards the first of September 27 El. makes a Letter of Attorny to I. S. to enter in the Rectory and Mannor and there to deliver seisin secundam formam Cartae which he did accordingly The Lease is confirmed the Bishop dies and Wilburn his Successor accepts the rent of A. and without any entry makes a second Lease for two lives to the Defendant and he is translated Laude the next Successor before any acceptance makes another Lease for
found for the Plaintiff and Finch Recorder moved in arrest of Iudgement first for that they assigne the wast in a Park where the wast is in Land c. Secondly Because that that Action did not lye for them both alike for if the Grandfather and he in the remainder in tayle had joyned in a Lease yet they could not joyne in wast The Books are If Tenant for life and he in the remainder joyn in a Lease they may also joyn with wast 21 H. 8 14. Although 19 H. 7. be put otherwise And 2 H. 5. Sir William Langfords Case Two joynt Tenants to the Heirs of one of them and they make a Lease for life And it was adjudged that they might joyn in wast for the Tenant for life had a reversion for life and had not made any Forfeiture If the Grandfather and he in remainder had joyned in a Lease and afterwards in wast it had been naught for the lease came out of the first root And it was resolved Tr. 2 Jac. Kings Bench Poole and Browses Case That one in remainder cannot have wast where there is an intermediate Estate for life Yelverton and Hutton did not believe the Case of 2 Jac. Crook If there be Tenant for life with such a power c. of Lands held in capite he may make Leases for life without Licence of Alienation and well proves this cause Yelverton and Hutton For the wast being assigned in a Park it is good for a Park is Land Sed adjournatur Hodges against Franklin TRover and Conversion is brought by Hodges against Franklin The Defendant pleads sale of the Goods in Marlborough which is a Market overt and the Bar was well pleaded and an Exception was taken For that that it is not said that Toll was payed It was said by Hutton That there are divers places where no Toll is to be paid upon sale in Market And yet the property is changed and Iudgement accordingly Grimston against an Inn-keeper IN an Action upon the Case it was said at the Bar and not gain-sayed That they ought to say in the Declaration Trasiens hospitavit for if he board or sojourn for a certain space in an Inne and his Goods are stollen the Action upon that is not maintainable And for omission although the Verdict was given for the Plaintiff Iudgement was given Quod nihil capiat per billam upon fault of the Declaration and he paid no Costs Wilkins against Thomas IT was said by the whole Court That a consideration is not traversable upon an Assumpsit but they ought to plead the generall issue and the Consideration ought to be given in Evidence Ireland against Higgins IReland brought an Action upon the Case against Higgins for a Greyhound and counts that he was possessed ut de bonis suis propriis and by Trover came to the Defendant and in consideration thereof promised to re-deliver him It seemed to Yelverton that the Action would not lye and the force of his Argument was that a Grey-hound was de fera natura in which there is no property sed ratione fundi live Deer and Coneys and vouchd 3 H. 6. 56. 18 E. 4. 24. 10 H. 7. 19. for a Hawk for Hares are but for pleasure but Hawks are Merchandable This difference in 12 H. 8. is allowed so long as a Dogge is in the possession of a man an Action of Trespasse lyes detinue or replevin But no Action if he was out of his possession and so had not a property then there is no consideration which is the foundation of an Action Hutton to the contrary and said the whole argument consisted upon false grounds as that a Dogge is ferae naturae Which if it were so he agreed the difference in 12 H. 8. But he intended that a Dogge is not ferae naturae for at first all Beasts were ferae naturae but now by the industry of man they are corrected and their savagenesse abated and they are now domesticae and familiar with a man as Horses and a tame Deer if it be taken an Action lyes Rogers of Norwich recovered Damages pro molosso suo interfecto And 12 H. 8. So of a Hound called a Blood-hound And a Dogge is for profit as well as for pleasure For a Dogge preserves the substance of a man in killing the Vermine as Foxes And now is not an Horse for the pleasure of a man for a man may goe on foot if he will and an Horse is meat for a man no more than a Dogge Therefore an Action may lye for the one as for the other And for a Hawk he ought to shew that it was reclaimed for they are intended ferae naturae One justifies in 24 Eliz 30. for a Battery because he would have taken away his Dogge from him A Repleavin was brought for a Ferret and Nets and a Ferret is more ferae nat than a Dogge Seale brought 25 Eliz. Trespass for taking away his Blood-hound and there it was said to be well laid And then now if he has a property the consideration is good enough to ground an Assumpsit It is adjudged that a feme dowable The heir promises to endow her before such a day and the Action is maintainable upon that by the Court Intraturudic pro quer if no other matter were shewed by such a day Jenkins Case HE brought an Action upon a promise to the Plaintiff That if he marryed her with the assent of her Father she would give him 20. l. Adjudged a good consideration by the Court. 3 Car. rot 414 Sir Edward Peito against Pemberton SIr Edward Peito is Plaintiff against Pemberton in a Replevin and the Defendant was known as Bayliff to H. Peito and said that H. Peito the Grandfather had granted a Rent for life to H. Peito the Son to commence after his death The Plaintiff confesses the grant but sayes that after the death of Peito the Grandfather these Lands out of which the Rent issued descended to Peito the father who made a Lease for a thousand years to the Grantee and dyes The Avowant confesses the Lease but sayes that before the last day of payment he surrendred to the Plaintiff Vpon which there was a Demurer and the question was whether the surrender of the Lease would revive the rent Harvey If he had assigned the Lease to a stranger the rent had been suspended 5 H. 5. One grants a rent charge who had a reversion upon a Lease for life to commence immediately there the question was when the Lease was surrendred whether the rent now became in esse because that the Lease which privileged the Land from distresse is now determined in the hands of the Grantor himself Crook If the Grantor had granted reversion to a stranger and the surrender had been to him It was clear that the suspension had been for the term Hutton If a man seised of a rent in Fee takes a Lease of Lands out of which c. for years and dyes the
of the Demand cannot be made parcel of the Issue 31 Eliz. rot 1137. Com. Banc. Dennis Varneys Case There the Book was agreed If it be to be demanded generally it may be at any time if it be tunc petit otherwise For otherwise it would be a Rent-charge at one time and a Rent-seck at another And the Distress it self is the Demand As it is in Lucas Case If one be obliged to pay mony upon Demand The Action brought is a sufficient demand And Barkley Sergeant He shews in the Avowry that such a one was seised of 20 acres and grants a Rent out of them and others by the name of all his Lands in Rustock and Ollerton For that he said that Ollerton is not charged Because that it is not pleaded that he was seised of that But the whole Court on the contrary And that it is an usual manner of pleading And that it shall be intended that he was seised of Ollerton First the words are per scriptum c. he granted a Rent and then he pleads that per scriptum suum he gave a power to distreyn And then it shall be taken that it was not made by any other Deed and the Distress given by the second Deed shall not make the Rent a Rent-charge And he cited Buts Case Then if it be a Rent-seck and the Distress gives a nomine paenoe There ought to be an actual Demand and that upon the day as it appears by Maunds Case And Pilkintons Case 5 Rep. 5 Eliz. Dyer If it was a Rent-charge the Distress it self serves for a Demand As it was many times adjudged Secondly The words are If the Rent be in arrear any day of payment or 14 daies after The last instant of the 14th day is the legal time for demand of it And the words existent legitime petit ought to refer to the daies expressed immediately before As 39 H. 6. A man obliges that his Feoffees shall do such an Act si quisuerunt Those words shall have reference to the Feoffées And Dockwrays Case If a Man be obliged that his Children which he now hath so also existent Being words of the Present tence refer to the days now mentioned and otherwise there would be a great inconvenience For it cannot be intended the same tenant to be alwaies upon the Land Barrows Case 20 Eliz. A Feoffment upon Condition to re-enfeoff upon demand at such a place It cannot be demanded without notice to the Feossée For that that he shall not be compelled to be there alwaies expecting And the same inconvenience alwaies would follow If the demand should not be upon the day of payment by which c. Richardson If the Rent had béen granted out of 20 acres in Rustock and then he had granted by another Déed that he should destreyn in other Lands being in the same County or not and is the same That that is but a Rent-seck 10 Assise 21 Ass And the Distress is not but a penalty And if that Rent is granted by one Deed and the distress upon the Land by another Deed If it be not delivered at the same time then there shall be a Rent-charge and there shall be also a Rent-seck And when also it is said that ulterius he grants per scriptum suum and does not say praedict It shall be intended another Deed then without averment that it was delivered at the same time It shall be intended at another time But admit that it be a Rent-charge and that it issue out of Ollerton where the demand of it was Yet he ought to maintain that actually In Maunds Case The distress is a sufficient demand For it is not but to inable him to destreyn and that is where the demand is limitted generally But if a Rent be granted and if it be demanded of the person of the Gruntor he may destreyn Then there may be an actual demand that was adjudged As in the Court 15 Jac. Com. Banc. Iackson and Langfords Case and in one Armerys Case And in another upon the same point So if you will grant a Rent-charge demandable at a special and particular place If it was at another place than the Land charged Without doubt there ought to be an actual demand So if it be upon a special place from the Land charged or demanded for the distress ought to be pursued as the Grant is And that is upon such a demand But where it is restrained by the words of the Grant And the same Law is where you will limit the time of the demand If the Rent be granted payable at such a day and grants over that ad tunc being demanded there a legal and general demand will not serve But there ought to be an actual demand And also it is as much although not in express words for the sence and meaning carries it If it be arrear at such a day existent petit The demand ought to be at the day mentioned before If I be bound in Obligation the Condition to pay mony at such a day being demanded There ought to be a demand at the day of payment or there shall not be a forfeiture And now then there is not a demand at the time so no cause of distress And although the Verdict be found if it be collateral matter yet it will not help For when it appears upon the whole matter that there is not any Title to distreyn the Tryall will not help it And so Iudgement shall be given for the Plaintiff Hutton Harvy and Yelverton agreed That if it was a Rent-seck and the distress a penalty there ought to be an actuall demand at the time limited But in case of a Rent-charge although the demand is limited to be made upon parcell Yet they all held that a generall demand will serve And that shall be at any place at any time For Harvey said There is no oddes whether it is limited to be demanded generally or to be demanded upon Dale If it be material it ought to be observed in the one Case as well as in the other Stanleys Case IN one Stanleys Case in an Action of Battery Sir Thomas Crew moved for mitigating the dammages Where the Iudgement was given upon a non sum informatus and afterwards a Writ of enquiry of dammages But the Court said That in such Cases they never will alter the dammages And Crook said that he was once of Councel in an Action of Trespass pedibus ambulando in the Kings Bench in such a Case upon a Writ of enquiry of dammages 10 l. was given That he could never have a mitigation by the Court c. Outlary NOte it was said That an Outlary in the same term for error may be reversed in the Common Bench Or in any term if it be void upon any Statute As for want of Proclamations c. And an Outlary was reversed for that the Writ was praecipimus tibi where it should have been vobis to the Sheriffs of London
all was false and written of set purpose and that for that the Lord displaced him it would be more difficult But for any thing as appears to us there is not any thing for which he might be justly displaced And also it was not said in the Declaration that the Defendant had any fee for his Office And Richardson also said That if it had been found as my Brother Hutton said Yet it is known that it should be more strong But then I conceive that the Action does not lye For it is apparent that nothing in the Letter may be applyed to a particular misbehaviour in his Office And by the Court Although the Declaration be laid falsely and maliciously Yet if the words be nâ—…t scandalous yet it ought to be laid falsely and maliciously And he said that it was adjudged in this Court Where an Action upon the Case was brought for conspiracy to indict a man and upon the Indictment the Iury found Ignoramus There the Indictee was clear And yet for the conspiracy the Action laid which was Blakes Case And it was said by Hutton If I have Land which I intended to sell and one came and says maliciously and on purpose to hinder my sale that he had a Title to it That that is actionable Which Harvey agreed without Question if he does not prove that he had a Title If one says of an Inue Go not to such an House for it is a very cutting House Agreed by the Court not Actionable Mich. 5 Car. Com. Banc. And Iudgment was given quod querens nil cap. per bil Pasc 6 Car. Com. Banc. THis Term there was nothing worthy the reporting as I heard of others For I my self was not well and could not hear any thing certum referre c. Trin. 6 Car. Com. Banc. Tomlins's Case IF the Husband makes a Feoffment to the use of himself for life the Remainder to his Son in tayl By the Court That is a dying seised in the Husband For the Wife shall have dammages in Dower And so it was adjudged in the Lady Egertons Case But the Husband ought to dye seised of an Estate tayl or Fée simple which might descend to his Heir Mich 6 Car. Com. Banc. MEmorandum That Sergeant Atthowe died at his House in Northfolk who was a man somewhat defective in Elocution and Memory but of profound Judgement and Skill in pleading NOte it was was said by Hutton and Davenport That if an Inferiour Court prescribe to hold Pleas of all manner of Pleas except Title to Freehold That that is no good prescription For then it may hold Plea of Murther which cannot be c. Note It was said by Richardson chief Iustice that if two conspire to indict an other of a Rape and he is indicted accordingly If the Iury upon the Indictment find Ignoramus Yet that Conspiracy is not punishable in the Starchamber Father purchases Lands in his Sons name who was an Infant at the age of seaventeen years and he would have suffered a Common recovery as Tenant to the Praecipe But the Court would not suffer him Rawling against Rawling THe Case was thus A man being possessed of a Lease for 85 years devises it as follows viz. I will that R. Rawling shall have the use of my Lease if he shall so long live during his life he paying certain Legacies c. And after his decease I devise the use thereof to Andrew Rawling the residue of the term with the Lease in manner and form as R. Rawling should have it Crew said That after the death of R. Rawling and Andrew the term shall revert to the Executors of the Devisor But by the Court not But it shall go to A. Rawling the last Devisée and in manner and form shall go to pay Legacies And by all a strong Case And together with the Lease be by strong words The Archbishop of Canterbury against Hudson of Grays-Inne THe Archbishop of Canterbury prosecuted against Hudson of Grays-Inne in an Information upon the Statute of E. 1. of Champerty Henden Sergeant for the Plaintiff moved upon the Plea that it was insufficient Because that the Defendant had prayed Iudgement of the Writ when he ought to have pleaded in Bar For the Statute of E. 1. had appointed a special Writ in this Case as the Defendant said But by him the Information is upon the Statute of 32 H. 8. which gives that Action by sute in Chancery which before was only by sute at Common Law Richardson chief Iustice said That the Plea is not to the matter but to the manner for the Plaintiff had mistaken his Action For the Action is given to the King only And therefore said to Henden demur if you will The Case was that the Defendant purchased Lands in anothers Name hanging the Sute in Chancery for it And after rules for Publication was given in the Cause Malins Case AYliff moved in arrest of Iudgement in an action of Battery c. And the cause that he shewed was An issue mistaken cannot be amended It was brought against William Malin of Langlee and in the Record of nisi prius It was William Langley of Malin But by the Court it ought to be amended For it is a misprision apparently of the Clark For the whole Record besides is right And the Record of nisi prius ought to be amended by the Record in the Bench according to the 44 E. 3. But if the issue had been mistaken otherwise it had been Arrerages for rent upon an estate for life cannot be forfeit by Outlawry NOte That it was agreed by the whole Court That arrerages of rent reserved upon an Estate for life are not forfeited by Outlawry because that they are real and no remedy for them but a distress Otherwise if upon a Lease for years c. Hill 6 Car. Com. Banc. MEmorandum that this term Sir Humfrey Davenport puisne Iudge of the Common Bench was called into the Exchequer to be Chief barron Browns Case AN Information upon the Statute of 5 Eliz. pro eo that one Brown was retained an Apprentice in Husbandry until the 21 year of his age and that he before his age of 21 years went away And the Defendant absque ullo testimonio detained him contra formam Statuti And by Hutton and Harvey Iustices only shewed the branch of the said Statute which says And if any servant retained according to the form of this Statute depart from his Master c. Hil. 6 Car. Com. Banc. And that none of the said reteined persons in Husbandry until after the time of his reteiner be expired shall depart That is not to be intended of an Apprentice in Husbandry but of an hired servant For the Statute did not intend to provide for the departure of an Apprentice because that an Apprentice ought to be by Indenture And then a writ of Covenant lies upon his departure to force him to come again And by the Common Law an
open Pound if they dye the Distreyn is chargeable 75 A demand before a Distress if the Demand is out of the Land if not then see 86 Where Damages shall not be mitigated 93 Where a Demand ought to be certain and where not 109 On a Devastavit a Writ de bonis propriis issues 110 If a Debtee mary Debtor what becomes of the Debt see 120 In what Cases A must declare tam pro domino rege quam pro seipso 122 Double delay not allowed 126 E DElay in arrear of Error not hinder Execution 17 If a Sheriff remove his Prosoner out of the County without command It is Escape 34 Where he permits him to go for his pleasure Escapes lies ibid. Ne unque Executor found against him upon a Scire fac shall be only de bonis testat 48 Eject firm lies against Tenant at Will if he leases for years 73 If the Conisee permits the Conisor being in execution to go at large be an Escape 79 Excommunication to strike in the Church 86 If an Executor dies before probate the Goods belong to the Administrator of the first Testator 105 A Rent upon Condition reserved to the Executors goes to the Administrator 115 If a devise be void if no Executor be made 118 Ejectments do not lie of a Mannor 146 In Ejectment he ought to shew the certain quantity of Land 176 Antient Demesn is a good Plea in Ejectments 177 F A Franktenement cannot pass from a day to come 29 Feoffment to the use of a Stranger ought to be tendered to him 56 Denyal of the Rent a Forfeiture 6 A Subject may have a Forest but not a Justice Seat 60 No Clergy for Felony committed upon the high way otherwise upon the foot way 75 In a Formedon he ought to make himself heir to him who died seised last of the E-Estate tayl 78 Felony to take Pidgeons out of a Dove-coat 149 Fieri Facias no Bar to the Capias although part of the debt be satisfied 159 I INdictment quassavit for incertainty 35 Upon a Judgement if the Money be paid to the Attorney it is good but otherwise of a Scrivener 48 Inne-Keeper ought to say in his Action transiens hospitavit 49 If Land be descended to an Infant the Sheriff shall surcease his extent 54 59 Iudgement had against an Infant may be reversed 65 Judgement reversed for want of Pledge 59 Imparlance roll may be amended 143 Infans habeat eandem actionem possessoriam qualiter antecessor 160 An issue mistaken cannot be amended 164 K IF the King enters upon any Tenant a Petition of right lies 29 The King cannot take a man in execution out of Prison to his wars causa vid. 57. L VVHether a Lease to two be determined by the death of one 85 Whether a Grant of Estovers out of another place than was the Lease be good 78 Libell for the Seat in a Church 94 Where upon a Lease the Heir shall be estopped and where not 91 Libell for Tithes of two pecks of Apples 100 M VVHat things go to the making of a Feme sole Merchant 9 Where inter-mariage is but a suspension of a promise 12 An action brought in consideration of a mariage 50 How a Lord shall recover in a Writ de valore maritagii 55 O FOr what Causes an Outlawry may be reversed 93 P IN Partition no dammages are to be recovered 34 Prescription for Sallery of a Vicar is tryable at Common law 33 Prohibition where the thing might be tryed and proved at Common law 15 Where Prohibitions shall be granted and where not 19 27 28 49 50 51 60 68 69. Parson cannot discontinue 88 Prohibition upon words 94 A Protestando is no Answer 104 Symony a good suggestion for a Prohibition 116 Whether a Prohibition may be without alleging a Custom 117 Per minas pleaded 121 R VVHether the word Successive so makes a Limitation of a Remainder good matter and Cases thereupon 22 23 24 25 26 If a Feme sole Executrix of a Term mary him in reversion and dies the Term is not drowned 36 Release of Actions and Sutes substantive bars Debt 15 Nul tiel Record replyed where Recusancy convict is pleaded by the Defendant the Record must be shewn 18 Where a Reversion passes without Attornment 73 Where one Request may serve for several Debts 84 Whether on a Rescous the Action shall be brought by the Plaintiff against the Rescousor or against the Sheriff 95 Where no averment against a Record 107 Where a Feme shall be remitted and what makes a Remitter 110 No Rescous can be of Goods 145 Arrerages for rent upon an Estate for life cannot be forfeit for Outlawry 164 S TO grant a Supersedias there must be execution erronice emanavit alleged 30 Surrender determines the Interest of all parties but a Stranger 51 In Case of Symony the Statute makes the Church void 51 No fee due to the Sheriff for the executing of a cap. utlagat 52 That he might arrest the Kings Servant upon this Writ ibid. Quicquid plantatur solo cedit solo 57 T TRover and conversion brought for a load of wheat 22 A discharge of Tithes by the Parson for years runs with the Land and not with the person 31 Where toll ought to be pleaded in Trover and conversion 49 Trespass against Baron et feme dum sola fuit both shall be taken 53 If Part and Portion a like make joint tenancy or tenancy in Common 55 Trespass brought by Baron and Feme they must not say ad damnum ipsorum otherwise of Jointenants 2 Tithes of Fish due meerly by Custom 13 Tithes where due by the Common law of the Land no Prohibition ibid. Tithes of Limekills 14 The word Equally makes Tenancy in Common 64 No Trespass lies against a Disseisors Lessee 66 Where Tithes of young Cattel 85 93 Tithes for hedging Wood. 18 A Term evicted on Elegit is grantable upon a Statute Merchant or Staple not tithes for milk of Calves 100 No Composition for tithes for life without Deed. 107 No tithes for Estovers burnt in an House 110 V A Special Verdict may be amended according to the notes given to the Clark 52 A Verdict finding matter repugnant or which cannot come in question binds not the Court. 4 If a Scrivener not the party reserve more than just interest no Usury 11 Where the Visne and the return differ it is not good 83 If Defendant dies between Verdict and Iudgement Iudgement will be stayed 90 Whether Beer Brewers are within the Statute and intent of Victuallers 101 W VVAste committed by a Stranger the Lessee dies no remedy against the Seranger 97 Tenant for life and he in remainder may join in Waste 105 The Warden of the Fleet nor Westminster never may take Obligations for Dyet 146 REPORTS AND CASES TAKEN In the third fourth fifth sixth and seventh years of the Reign of the late King Charles c. Ralph Marsh against John Culpepper RAlph Marsh brought an action upon the
good and it shall be intended that the Parson is alwaies resident in his Parsonage as a Surrender or an Attournment shall be intended upon the Land and it is not requisite to name any place And it seemed to Harvey that the Arbitrement was good although that all the Parishioners had not submitted to it Because that these were bound for them 18 E. 4. 22. 1â—… 1. And Iudgement was afterwards in the next Term given for the Plaintiff Iohn Paston against William Manne IOhn Paston brought an Ejectione firm against Manne and a special verdict was given to this effect scilicet Edward Paston was seised of the Mannor of Bingham parcel whereof was the Land in question grantable by Copy And he by his Deed indented in consideration of a Mariage to be had between Tho. Paston his Son and the Daughter of I. S. covenanted with I.S. to stand seis'd of the Mannor to the use of his Son for life and after to Mary the wife for life the remainder to the first Son between them in tail with divers remainders over The Mariage was solemnised and they found moreover that there was a Custome that the Lord might have liberty of fould course for 100 Sheep throughout all the Copiholdland lying in the East and North field the Customary places and Lands in these Fields not being inclosed from the Feast of St. Michael to the Feast of the Annunciation if the grain was carried in by that time Or otherwise from the time of the carrying in to the Annunciation if it be not sowed with seed again and that those 15 acres in question be in the Corn-field And that Thomas Paston granted that Copihold to the Defendant in Fee and that in 14 Iacobi the Defendant enclosed the Land without Licence of the Lord and if Licence was obtained then he ought to have paid a Fine which the Lord would have assest And if any of the Tenents inclose without Licence they find that they have used to be punisht and pay those penalties which the Lord would assess And they also found that that incloser by the Copiholder was with a Ditch of six foot in breadth and 3 foot in depth and that the land which he digged out was but to make a Bank upon the Land upon which a hedge of quick thorn was set and that four gaps were left in the inclosure of nine feet in breadth And they found that the Defendant did not at any time compound for a Fine And then they find that the Copiholders which before this inclosed without Licence were amerced and commanded upon a pain before a certain day to throw up their inclosures And now for this inclosure Thomas enters for a forfeiture and dies his Wife makes a Lease of it and the Defendant ejects the Lessee Atthowe held that he had forfeited his Copihold for that inclosure is against the Custome of the Mannor which is found For the Custome is the life and soul of a Copihold as it is in the 4 Rep. 31. Brownes Case The breaking of that is a forfeiture and make the Copiholder have an Estate at will meerly whereas before he had an Estate not meerly at the will of the said Lord but secundum volunt domini And so by the inclosure the Lord cannot have his fould course and so the custome is broken 42 Ed. 3. 25. For not doing the services the Lord may enter and have the Emblements If a Copiholder makes a feoffment it is a disseisin for which there may be an Assise of novel disseisin de libero tenement of Lands whereof the profits or of the Rent issuing out of the Land there is a forfeiture And Littleton said that a rescous Replevin Enclosure and denying the Rent is a Disseisin And what is a Disseisin of a Freehold is a forfeiture of the Copihold Rescous by a Copiholder is a forfeiture for all the books say that a denial of a rent is a forfeiture And it is held that if a Copiholder brings a replevin it is a forfeiture and the Lord may enter presently But if he avow then perchance he hath dispensed with it And an inclosure is more strong than a denial 11 E. 3. Assise 88. cited in Taverners Case 4 Rep. The heir cannot have an Assise before entry but if the Defendant menaces him or stops up the way it is a Disseisin 14 Ass plac 19. 8 E. 2. As 374. A stopping up of the way is a disseisin but if he can go another way he can have nusance 29 Ass 49. But it will be objected that the Lord had another remedy for he might have an Action of the Case And for that not enter for a forfeiture But an Action of the Case does not restore him to the Freehold but give dammages only And if an Assise be brought it affirms the Disseisin and makes forfeiture and that agrees Taverners Case That where several Copiholds were granted by one Copy a rent denied of one forfeits that and not the others But admit it is a forfeiture if the leaving the Gaps dispence with it And it seem'd that not for he loses the profit of the Fould-course for 500 Sheep would tear their fleeces by such a narrow passage and the inclosure is an impediment to hinder their spreading in their feeding And so every one also may inclose and leave gaps and the Lord perhaps compell'd to put and remove the Shéep ten times in one day and so the Sheep worse at night than in the morning c. Secondly if the Lord had given Licence then he would have had a Fine but he would so be his own Carver And the Lord had no remedy for a Fine upon admittance after Surrender 4 Rep. 46. He had no remedy there by Action of debt nor by Action of the Case without promise to the Admittance c. Lord grants a Copihold Escheat he ought to improve his Fine before or he hath no remedy for he is not compelled to grant the Copihold again and therefore he shall have what Fine he will And it is not found also who may inclose paying his Fine A Lord admits a Copiholder for life with remainders the admittance of Tenent for life was the admittance of the remainder but he shall have his Antefine 4 Rep 23. And if they may inclose paying a Fine then the Lord had an Estate at the will of the Tenents Thirdly when it is found that the Lord amerced and commanded upon pain c. that is no mitigation or dispensation of the forfeiture For ruinous Houses pull'd down is a forfeiture without Custome to the contrary Because no waste lies against a Copiholder as against Lessee for years And yet the Lord in favour may amerce such a Copiholder if he will and that is no dispensaition but an affirmation of the forfeiture And so because the Lords were conscionable and would not take the forfeiture that does not prove that it is a Dispensation Fourthly the making of the gap and hedge of
by Attorny the Deed is void But now the grand doubt is whether the livery after the day by Attorny be good I will agree that if the letter of Attorny was made the same day that the deed bore date the livery is void For it shal not be in the power of an Attorny to invalidate or validate the lease made by an other So if a letter of Attorny be contained in a Charter of feoffment or be in another Deed delivered at the same day The delivery upon that Deed shall be nought And the Attorney by his livery cannot make the lease or feoffment good no more than in Bucklers Case an atturnment can make a Grant good 9 Iac. com banc rot 1414. Walter and Dean and Chapters Case of Worcester cited before In a Writ of covenant There a lease was made by E. for three lives bearing date the 10 of Novemb. 42. E. and a letter of Attorney to deliver seisin The Attorney delivered seisin a year after when two rent daies were incurred And it was doubted whether that livery was good because that two rent daies were passed before he had executed his Authority And it was adjudged good And it was not like the Lord Cromwells Case 2 Rep. Where a performance of a Condition for the avoidance of an advowson was void no time being limitted For in Case of authority it may be executed 10 years after So that what the Feoffor himself may do he may give authority to another to do that For if he be bed-rid or other infirmity shall the law so fetter him that what he can do himself he cannot in the same Case do by any other For although you may say that he may make a new lease yet perhaps he is tyed by Covenants or Obligations so by which he shall be worse intangled And the reason of the expectancy of the Frank-tenement also which an Attorney may make good or bad a lease of another is included Because where it is mischievous to none the law does not envy the Ease of the party as Combes Case is A Surrender by an Attorney of a Copihold is good and we can you know appear by Attorney in actions and acknowledge Iudgements But it will be objected that livery by Attorney is not good without a Charter of Feoffment as Kirkby said 16 H. 7. fol. 51. Plo. 6. And if those Books are not law Yet Greenwood and Tilers Case before recited will resolve that doubt That the Deed is not void if the livery be after and if the Entry be presently he is a Tenent at will or a Disseisor as it is in Bucklers Case For it cannot be made good by any thing after Yet the Déeds remain or otherwise his acceptance did not bar him I confess that an Authority to make livery cannot be made by Paroll as 10 H. 8. 11 H. 4. for it may be revoked by Paroll As a Will which cannot be made but by writing yet it may be revoked by Paroll 26 As But an authority to make a Lease is made by Paroll 30 E. 3.31 32. If a Déed purporting an Estate in Fee simple be read to the Feoffor who is an illiterate man to pass only an Estate tail And a Letter of Attorney was to deliver seisin secundum formam Chartae which is well read to him Yet it was resolved that all is void And that he may plead it was not his deed to the letter of Attorny For if the Deed be void the Letter of Attorney which releases to it is void also But I conceive if it be put in a Deed that gives Land a die datus and the Attorney authorised by express words delivers seisin three daies before that livery may be good And then it is more strong when he appoints his Attorney after the day as it is in this Case A Feoffment made from a day past is good and the time before the livery is idle And for another reason in Case of Assurances such nice constructions ought not to be made And because there is no difference whether livery be made in Person or by Attorney Now there is a difference between an Authority and Conveyance H. 20. 40 Eliz. in an Ejectione firm in this Court Marriots Case A Charter of Feoffment was made to the Lessor of the Plaintiffs 10 Septemb. And the Feoffee reciting that that Charter was made the 11 of September authorised him to take livery secundum formam Chartae And it was resolved because the date was mistaken although all other circumstances agreed Because that the authority ought to be taken strictly that that is a void livery But in Dyer 116. A Lease is made the 30 day of August for 21 years and afterwards the Lessor reciting that the Lease was made the 6th of August demises the Land habendum after the first Lease determined And it was resolved to be a good Lease because that the beginning and ending of the Lease agreed And in the Case of Marriot it was resolved Secondly That an Attorny cannot be without Deed. Thirdly Although that the Feoffor in person makes livery yet it is void Because that the Attorney cannot take the livery upon that Deed without that authority But where that one may do that thing himself and he gives the Attorney the same authority It is all one if Feoffment be made to I. S. and I. S. makes an Attorney to take livery whereof livery is made yet is good And it is all one as if livery had been made to I.S. himself 19 H. 6. A Feoffment upon Condition that he enfeoff I. S. void by the Statute of 1 Eliz. or voidable and it seemed it was but voidable by the Successor by entry or by action You may sée that the words are as plain as may be They shall be utterly void to all intents and purposes But quid haeret in litera For her meaning was That it shall be void by the Successor and that construction had alwaies been made 3 Rep. 19. 11 Rep. 73. So the Statute 23 H. 6. of Sheriffs had been expounded 7 E. 4. 4. There cannot be non est factum pleaded And upon the Statute of Vsury That an usurious contract shall be void Yet the Statute ought to be pleaded Acts of Parliament where there are many doubts shall be expounded by the Common law For that that at the Common law a Free-hold cannot he helped but by Entry 11 H. 7. There is a diversity between a Lease for years and a Lease for life Dyer 222. And it is the dignity of a free-hold to reduce it by free-hold Then if it stood with the Common law It is not to be void without Entry For as a solemn Ceremony created the same must defeat it The Statute shall be so expounded And if it was in Case of a lease years of a Bishop it shall not be void without Entry 3 Rep. Pennants Case Dyer 229. 8 H. 5. 11 E. 3. Commen 139. It was never the meaning of the Act
to make it actually void For if the words are pursued strictly then it shall be void immediately against the Bishop himself Then the Successor in lieu of a benefit shall take an advantage of the Statute For he cannot make Leases but of things usually demised 32 Eliz. Sale and Sale against the Bishop of Coventry in a Quare impedit It was adjudged That a Quare impedit well lies by an Executor for disturbance made to the Testator And also that a Lease for years is good notwithstanding the Statute The Statute does not intend the benefit of the Lessee but of the Successor himself And the Successor had his Election to accept the Rent or the Land And if it should be voyd his Election is gone Tallengers and Dentons Case 4. Jac. A Lease is made by the Bishop of Carlisle of the Tithes which is out of the Statute And there it is void against the Successor For that that he hath no remedy for the Rent reserved upon it And that point is so adjudged upon the Statute of the 13 Eliz. Walters Case before resolved that a Lease made by Dean and Chapter not warranted by the Statute is but voydable against the Successor Pas 6 Iac. rot 1041. Wheeler and Danbies Case Robert Bishop of Glocester 30 Eliz. makes a Lease to Iasper habendum a die datus to him for life the remainder to William rendring the ancient Rent The first Lessee dies the Successor having notice of it and that divers Rents were behinde commanded his Bayliff that he should receive the Rents The Bayliff enters them and receives Rent of that Lessee the Bishop having notice of it And these points were resolved First the Iury finding a Lease a die datus might be intended good for that the Entry was made after the day yet the Iury finding a thing impossible does not conclude the Iudges Secondly that a Lease in remainder is not warranted by the Statute 1 Eliz. Thirdly that the Lease was but voydable by the Successor for the Statute was made for the benefit of the Successor but the grand Question was of the manner of acceptance and resolved Fourthly that the acceptance binds the Bishop and the Authority given to the Bayliff and also his receipt For it differs where the Bayliff of his own accord receives Rent Dyer And they also say that that was to perfect an estate setled And it differs from an Attournment which is to perfect an estate setled For there notice is requisite c. Gammons Case again HEndon said that a Scire facias does not lie upon that record because an action of debt well lies For no president can be shewn that a Iudgement given in an inferiour Court may be executed so For first that Court shall not make an Instrument to execute Iudgement given in another Court It is seen that an Attaint lies of false Iudgement given in an inferiour Court Take the Case in 14 H. 4.4 And so if issue be joyned in an inferiour Court without custom It shall not be removed to be tryed so And so it is our Case c. Secondly the Statutes do not give them power viz. 26 H. 8. 34 H. 8. makes the matter clear that it cannot be Error in an Assize before the Iustices of Assize will not lye in this Court. For Iudges Itinerant are superior And those Iudges are appointed by Act of Parliament and so the Iudges also in Wales are by Act of Parliament And having power a Oyer et terminer It is not found that after Iudgement a Certiorari had been received to remove the Record out of an Inferiour Court And the mischief would be if Iudgement should be given for 20. l. it should be executory through all the Realm where they have but a special Iurisdiction And also the tenor of the Record is only removed and execution cannot be out of the tenor of the Record Dyer 369. Plow 52. Richardson The question is whether when the Record is so removed whether it shall be idle If Iudgement be given in an Inferiour Court which holds Plea by prescription or by grant and removed by Writ of Error if the Iudgement be affirmed we may award Execution 16 Iac. There is an express president of a Iudgement in an Inferiour Court and a Scire facias is granted so And also a Scire facias is granted in lieu of an action of debt For by the Common Law he might not have a Scire facias after the year but an action of debt And by the Common Law debt lies in that Case Harvey and Crook Iustices said that Court shall not be an Instrument to execute Iudgement in an inferiour Court which they cannot And also the Land of the Defendant shall be lyable to an execution in any place in England where before only the Land within the place was lyable And also the purchaser could never finde out what executions might be upon the Land Richardson said that the mischief would be great on both sides For otherwise what Iudgement was given The Defendant would remove his goods out of the Iurisdiction of the Court and then the Plaintiff had no remedy but by new original And Crook Iustice If a man brings an action in a Court he ought to examine what the end of that will be For it is a president a man ought to respect things in their end For it is his own folly to commence an action where he cannot have execution For that he may commence his action and have execution in any place in England And although that a forrain Plea in an Inferiour Court may be tryed so yet it is by Act of Parliament viz. 6 E. 1. 12. which proves by the Common Law there was no remedy Tithes of Pidgeons and Acorns A Parson Libels in the Spiritual Court for Tithes of Pidgeons and Acorns And the Defendant prayed a prohibition Because the Pidgeons were spent in his own house and the Acorns dropt from the Tree and his Hogs eat them And it was said by the Court Acorns are Tithable 11 Rep. 49. But then they ought to be gathered and also sold And a prohibition was clearly granted Thomas Wilcocks Case MOre of the Case of the Vniversity of Oxford Thomas Wilcocks Mr. of Arts in St. Mary Hall in Oxford was sued in the Chancellors Court there by Anne wife of Ralph Bradwell and Christian her daughter For calling the wife Bawd and old Bawd and the daughter Whor. and scurvey pockey-faced whore And they procured two Sentences against Wilcocks and upon them he had two prohibitions And Davenport moved for a Procedendo for that that by their Charter which was confirmed by Parliament The Chancellor or his Deputy shall have Conusans of all causes personal where one of the parties is a Scholar And the Charter was shewed in Court which was to this purpose That they shall hold Pleas c. or Secundum morem Universitatis or Secundum legem terre And the custom was to proceed according to
was found for the Plaintiff And Atthowe moved in arrest of Iudgement First for that That in the Record it was entred that the Issue was inter praedict Robertum where it should have been Radulphum And secondly that the words were not actionable Richardson said as to the mistake it was helped by the word aforesaid And although that it was inter praedict Andrews it should have been well For it cannot be intended but the same Andrews And Crook Iustice cited Dyer 260. Cook and Watsons Case to be the same Case and 11 H. 7. Penningtons Case That the words were actionable For the Statute punishes forgery and the procurers of forgery And it is all one although he did not say falsly procured as the precise words of the Statute are Yet it shall be intended that that is implyed in the word Forge But if it had been said the Deed given in evidence was forged that was not actionable Wood against Symons VVOod against Symons in a Prohibition in which Symons libels for Tithes of Hay And Wood suggests for the Prohibition That he used to pay tithe of Hay in specie in consideration whereof he used to be discharged for all Doles Green-skips and Headlands not exceeding the breadth that a Plough or a Teame might turn about the Lands And Henden moved for a Consultation For that it is said about c. that is circa terras arabiles When the truth is there are Skips at the side of Lands as broad as the Lands themselves and then he would be discharged of them also Whereas it ought to be at the end of the Head-lands only Richardson said that in arable lands inclosed Pasture is at the end and at the sides which is mowed and yet discharged of tithes But the Court in respect there was a Prohibition granted said That he ought to joyn Issue or demurre upon the Declaration Summons IN a Writ of partition after the Summons an Estrepment was granted and generally against the Parties and their servants For in partition no dammages are to be recovered Quod nota Escape IF a Sheriff remove his Prisoners out of the County without being commanded it is an escape But if he remove them from one place to another in his County as he changes his Gaol it is not an Escape But if he remove prisoners for their ease and delight in the same County it is a Escape As the Case was cited by Harvy That one went with his Prisoner to a Bear-bating in the same County And it was adiudged an Escape And Hutton Iustice said So that if a Sheriff permit his Prisoners to go to work for their benefit it is an Escape And the Question was if in an Audita Querela for a voluntary Escape of one in Execution there should be bayl and the opinion of the Court was That if it appears That the Cause upon which the Audita Querela is grounded is called a good proof by the Record and that he should not be bayled unless good and special bayl Duncombe against Sir Edward Randall IN an action upon the Case betwéen Duncombe and Sir Edward Randall for diversion and stopping of a River It was agreed by the Court That if one had antiently Ponds which are replenisht by Chanels out of a River He cannot change the Chanels if any prejudice accrew to another by that And yet the effect by prefluxions is to have the Ponds fed out of the River But sic utere tuo ut ne laedas alieno The Vicar of Hallifaxes Case A Chaplain that was under the Vicar of Hallifax libells against him for his Sallary And he prescribes that the Vicar ought to pay the Chaplains four pounds a year And the Vicar prays a Prohibition First for that he alleges That the Chaplains were eligible by himself And because that Chaplain was not elected by him He is not Chaplain But he is in of his own wrong c. Secondly That prescription for Sallery was tryable at the Common law Yelverton the Sallery is spiritual as the Cure it self is spiritual for which it is to be payed As the Case in Dyer 58. Pl. 4. But a Prohibition was granted untill it was determined to whom the election appertained And that now depends by Prohibition in this Court Assault and Battery TRespass of Assault and Battery was brought against two and the one of them appeared and a Verdict was found against him The other was in the insimul cum And dammages were taxed against him who appeared But the Court by view of the Plaintiff increase the dammages from 30 l. to 40 l. And afterwards a verdict was given against the other Defendant and dammages also were taxed And Thime moved that the other Defendant had murdered the Officer who came to serve the Execution upon him for the 40 l. And so they by possibility might recover nothing against him that the Court would increase the dammages against this Defendant upon another view of the wound But the Court denied that For they can have but view one time in this Action But if they had brought several Actions then it had béen otherwise But he directed him to stay all untill the first Defendant was hanged And then they may make a view and increase the dammages Margery Rivets Case A Iudgement in Debt was brought against Margery Rivets Administratrix durante minori aetate of her Son And in a Scire facias against her she pleaded in Bar that she was Administratrix c. and that such a day her Son came to full age scilicet 17 years and that after she refused before the Ordinary And that the Administration was granted to a Stranger And that she had delivered all the Goods in her hands at the time of the Writ brought or after c. The Plaintiff replies and confesses all the Bar But that before the delivery of the Goods and Administration granted by the Ordinary devastivit and does not say that praedicta Margery devastavit The Defendant joyns Issue Quod praedict Margery non devastavit Which was found for the Defendant And Hitcham the Kings Sergeant moved in arrest of Iudgement For that that there was no Issue For every Issue ought to be returned certain and the Issue grows upon the affirmative Then the word of the Defendant quod praedict does nothing for the affirmative makes the Issue Coo. Countess of Salops Case A Bar may be taken upon Common intent But a Replication ought to be precise and certain In the Exchequer Chamber Tho. Harris's case One pleads that he was seised of White acre and Infeoffac .. And adjudged naught for it ought to have been feofavit inde For he may be seised of White acre and enfeofft of another acre And also it may be said that another devastavit although that the wife was Administratrix Atthowe observed all the course of the Reeord there is not a word of Margery in the Replication but only in the recital But says ante diem quo devastivit And
demanded are material Because it is demandable in a Collateral place out of the Land charged Crook Grant of a rent and that I pay it at Michaelmas allwaies if it be demanded at my House there ought to be a demand And suppose it was to be demanded in such a place upon the Land I conceive the demand ought to be made accordingly Yelverton A Lease was made rendring a rent payable at such a day upon Condition that if the rent be not paid at such a day without demand That the Lessor may reenter And adjudged that no demand is now requisite For modus et conventio vincunt legem c. Sed adjurnatur Wolfes Case before THe Plaintiff was an Attorney who sued by attachment of Privilege And now the Court would not permit the amendment Because there was a material Error for it is to the disadvantage of the King For if the party be non-sute or a verdict passes against him the King shall have a Fine for false clamour and may recover them against the pledges But now where it is the Act of the Court or of the Clark or Attorny and not the party himself there may be amendment As warrant of Attorney may be entred after the Record removed And although that pledges were entred upon the Issue roll where it ought to have been upon the Imparlance roll But not on the contrary For the Issue roll is the inferiour Harvey If a Sute be by Bill as an Attorney being Defendant there are alwaies pledges entred in the Bill But if by Attachment also as so Then the Declaration is the Original Crook 12 Eliz. Dyer There Iudgement was reversed for want of Pledges And although that Case was before the Statute of 8 Eliz. yet that Statute does not ayd substantial Errors And in one Husseys Case in the Kings Bench That was adjudged for Error Wilknsons Case CRew moved that two were bound in a Statute and one dies his Heir within age That the extent shall demur Because that usura recurrit contra haeredem infra aetatem existentem And he cited 17 Ass 24. by Mawbrey And so it was agréed by the Court. And Richardson said That in that respect the Statute is an ill assurance Quod nota Waddingtons Case AYlâ—ff moved for a Prohibition for one Waddington for that that he was executor and was sued in the Councell of York upon an Obliligation for the payment of a Legacy And he alleges that a Lease which was put in the Inventory was aliened to him by the Testator in his life time And so the Question will be whether that should be Assets which ought to be tryed at the Common law And therefore prayed a Prohibition Richardson said The Councel of York have power of all Obligations And therefore having Iurisdiction of the principal they have Iurisdiction of the accessary Davenport It is seen that they may proceed upon an Obligation of all sums If they procéed Suo genere as in the Court of Equity But if a thing tryable at Common law as Assets or not Assets come they cannot proceed c. Richardson If a Sute be there for a Legacy and payment be pleaded they may try that But if they meddle in matter of Title then a Prohibition shall be granted Hutton There hath been many motions upon these Ecclesiastical Obligations for Prohibitions and allwaies they were denied And so it was in this Case Comins Case IN one Comins Case it was agreed by the Court That a Subiect may have a Forest But cannot have a Iustice Seat But he may have a Swanmark Court and the other Courts and a Commission to execute them Then a Forest in the hands of a Subject shall pay Tithes And it was agreed that in the hands of the King it is privileged And by Henden Davenport and Atthowe Sergeants It is only his personall privilege which extends to the Lessee of the King But not to the Feoffee And it was agréed That where the right of tithes comes in Question between a Parson and the Vicar who are both Ecclesiastical persons It shall be tryed by the Ecclesiastical Court But Richardson said the Books make a doubt Where it is between the Servant of the Vicar and the Parson But it seemed to him to be all one Margery Rivets Case before RIchardson Hutton and Harvey said That the Devastavit ought to be to Margery for Necessity sake For it cannot be intended otherwise For none can satisfie the Debt but Margery And the intention of the Replication was to charge her de bonis prop. for waste and no other can be intended to waste And the Case put of I. S. so being seised feoffavit There it is good without praedict I. S. But for the thing it ought to be Feoffavit inde 21 H. 7. There if W. S. be named again It shall be intended the same W. S. if there be not quidam I. S. and then otherwise and also it is much mended by the Replication For there it is ipsa Margareta non devastavit But Crook and Yelverton on the contrary according to their reasons before that no Issue is joyned And then the Statute does not ayd it For there is not any Nominative Case to which it may referre If it had been quo die Margery habens bona devastavit had been good But being bona habuit no Grammarian can make Construction of it And the Replication or Declaration ought to be certain to all intents 27 H. 6. 3. Wrotesleys Case In an information of Tithes It was said That the Defendant cognoscens him to be in sute being ruled that Congnoscens is not positively an affirmation but it ought to be cognovit And Iudgement was had upon it and yet after for that fault reversed 1 R. 3. There the Case was After verdict was entred that the Iury appeared et electi triati dicunt super sacramentum suum There it was reversed because it was not lurati and yet that was implyed by sacramentum strongly But Implications ought not to be allowed in Replicatious then we should introduce so many incertainties But by Crook Iudgement shall be given against the Plaintiff upon his own Replication For that that the waste is supposed after the Son came at full age and then the Administration that determines And Iudgement was given for the Defendant Roberts and others ROberts and others in East Greenwich were cited in the Spiritual Court to pay mony that the Wardens had expended in reparation of the Church And the Inhabitants alleged That the tax was made by the Church-wardens themselves without calling the Free-holders and also that the monys were expended in the re-edifying of Seats which belonged to their several Houses And they never assented that they should be pulled down And now that allegation was not allowed but sentence was given against them And then they appealed to the Arches where this allegation was also rejected And for that he prayed a Prohibition And the Court agreed That the
stollen from him and that was sold in a Scriveners Shop Resolved that there was no change of the property For by intendment if a man had Drapery stollen from him he would not seck it there So if a man fells stollen Plate and sells it in the High street under his Cloak It does not change property And if a man sells a thing in a Silkmans Shop in London the Curtain being drawn That does not change the property And now to the principal Case Although he said that he was a Goldsmith and that that was his Shop It is not necessary to be intended that he used the Trade of a Goldsmith in it And that ought to be averred For every Shop is a Market overt for these Causes only which appertain to the same trade Williams against Bickerton VVIlliams brought an action upon the Case against Bickerton for saying He hath forsworn himself and I le teach him the price of an Oath for I will have his Ears cropt And it séemed that it lay For although it was not said at the beginning where it was that he forswore himself Yet by the circumstance it shews that he was in such a place for which it was punishable And M. 29 30 Eliz. Dantsleys Case Thou art a Pillary Knave remember that thou hast deserved the Pillary and the Action maintainable And the Plaintiff paid the Box for his Iudgement Bradyes against Johnson BRadye brought an Eject firm against Johnson and declared upon a Lease of Land habend a die dat Indentur praedict And does not speak of any Indenture before And for that the Declaration adjudged naught And so it was betwéen Bell and March. And this same term between Spark Where it was shewed quod concessit per eandem Indent Where he had not spoke of any Indenture before Lowen against Cocks IN Debt by Lowen against Cocks the Case was thus A man seised of an house in St. Edmonds Parish in Lumbard-street in London devises it to his wife for life the remainder to his Son George and if he dye without Issue then to Iohn and Thomas his Sons equally and to their Heirs The wife dyes George dyes without Issue l. and T. make a Lease for years rendring 5. l. to the one and 5. l. to the other l. devises the reversion to his wife and dyes and for that Rent the Action was brought by the Wife And the Question was if they shall be Ioynt or Tenants in Common For if joynt the devise of the Reversion is void And Secondly If by any Act which makes partition viz. the several Limitations of the rent to them If séemed to Hutton that they are Tenents in Common By reason of that word equally which in it self makes a Division In 33 Eliz. in Boucher against Marsh It was held that where a man devises Lands to three Children equally to be divided they are Tenents in Common And so it was 14 lac in case of Goods And it is clear as it is said If a Man devise 100 l. to two equally the Executors shall pay 50 l. to the one and 50 l. to the other For if that word equally does not make tenancy in Common it shall be all otherwise void And every word of a Will ought to be of some force And in these Cases the word divided was not the force of the matter but only equally And it was the Case of a Shepheard in the Courts of Wards Where a man devises that after the death of his Son all my woods shall remain equally to his Daughters and their Heirs of their bodies And it was there held by Dyer and Manwood that they were Tenents in Common If Parceners agrée to hold by That is sufficient partition And if the one Ioyntenant confirms to the other that does not give any thing but severs the Ioynture Harvey to the contrary First They are Ioint For Ioynture is the greatest equality for every one is seised by himself and the one hath as much of the profits as the other And so equal interest and equal benefit to the Survivor 6 E. 6. in Dyer A difference was taken between a Demise to two when it is said equally divided That they shall be Tenents in Common If equally to be divided they shall be joynt But it was never adjudged 17 Eliz. A man having 3 Sons devises Lands to them equally to be divided The Question was what estate they had For if the younger had not a fee they could not have an Estate equal with the eldest for he had a fee. Resolved that they shall have a fee-simple and also that they shall be Tenents in Common And held that to be divided and divided was all one And it was held also that the word divided makes the Tenancy in Common and not equally 2. As to that reserve of 50 l. to the one and 50 l. to the other clearly being a joynt Lease and a joynt reversion And the Rent as accessary to the reversion and shall not change the nature of it Yelverton They are Tenents in Common A Will shall be construed according to the intent of the Testator And exposition shall be made of the words to supply his intent Tomlins's Case IT was agreed by all That if one sojourn in the House of another and the House is broken in the night and the Stranger robbed in the House without being put in fear of his life In law He that robbed shall have his Clergy notwithstanding the Burglary For it is out of the Statute of 5 6 of E. 6. cap. 9. Dicksons Case AT Sergeants Inne in Chancery lane this Question was debated If a man steal Goods and the very Owner makes fresh sute to take the felon So that he waives the Goods and flies And before the Owner comes the Goods are seised as Goods waived and af-the Owner comes and challenges them Now if he shall have them or they shall be forfeited was the Question And it was held by Harvey and Crook That they are not at all forfeited for that the Owner had done his endeavour and pursued from village And that the Goods shall not be said to be waived but where it cannot be known to whom the property is Hutton Chief Iustice and Yellerton said That Goods waived shall be said those which are stollen and that the Felon being pursued for danger of apprehension waives and flies Now if they are seised before that the Owner comes the property is presently altered out of the Owner in the Lord although that he made fresh sute If that Sute was not within the view of the Felon allwaies But they all agreed if the Felon do as not flye but is apprehended with the Goods That then the Owner shall have his Goods without Question Or if the Owner comes and challenges the Goods before seisure and after the flight of the Felon Harvey said The Statute of 21 H. 8. cap. 13. does not remedy any thing as to the restitution of the Goods stollen But upon
have come to full age the fourth day after The Court agreed that one may be non-suited the Essoyn day and if he confess an Action that day it shall be good And thereupon Iudgement was given that by the relation the Statute should be avoided c. Crookes Case A Feme sole leases at the will of the Lessor and after the Feme takes an husband If by the taking of the Baron the will of the Feme be determined and it was thought not Fenne against Thomas Hil. 3 Car. Com. Banc. A Man inhabiting in the most remote part of England was arrosted eight times by Latitat and no Declaration is put in Banco Reg. And the Counsell prayed Costs for the Defendant The Prothonotary said that he shall not have Costs unless he come in person But Richardson said on the contrary and he shall have Costs for it appears that he had been put to travell and a day given to shew cause why the Costs shall not be given Spark against Spark SPark brought an Ejectione firmae against Spark for lands in Hawkschurch in the County of Dorset The Case was a Copy was leased for a year except one day and that was found in the Verdict to be warranted by the Custome The sole Question is if an Ejectione firmae lyes And by Hutton If Tenant at will makes a Lease for years an Ejectione firma lyes but if it be a Copy-hold for years an Ejectione firmae will not be maintained Deakins's Case IT was said at the Bar and not gain-sayed If a man perjure himself against two the one by himself cannot have an Action upon the Statute but they ought to joyn for he is not the only party grieved Bentons Case A Man Leases for life and afterwards Leases for years to commence after the death of the Lessee for life rendring Rent the Reversion is granted Tenant for life dyes Lessee for years does not attourn And it seemed That the reversion passes without Attournment And he shall have Debt or shall Avow Williams against Thirkill AN â—…ion of Debt was brought by Williams against Thirkill Executor of I. S. who pleads a Receipt against him of 300. l. over and above which non c. The Plaintiff replies that the receipt was by Covin And so they are at issue and it was found for the Plaintiff and judgement was entred de bonis Testatoris And it was said by the by in this Case That Debt by Paroll may be forgiven or discharged by Paroll Ploughman a Constables Case PLoughman a Constable suffers one who was arrested pro quadam felonia antea fact to Escape And because it is not shewed what Felony it was and when it was done for it may be it was done before the Generall Pardon the party was discharged Hobsons Case VPon an Indictment of Forcible Entry Quod ingress est unum Messuag inde existens liberum Tenement I. S. And because he does not say Adtunc existens and without that it cannot refer to the present time scilicet of the Indictment He was discharged Sir Thomas Holt against Sir Thomas Sandbach SIr Thomas Holt brought Trespass against Sir Thomas Sandbach quare vi armis Because whereas the Plaintiff had used time out of mind c. to have a Water-course by the Land of the Defendant So that the water run through the Land of the Defendant to the Land of the Plaintiff The Defendant he said had vi armis made a certain Bank in his own Land so that the water could not have his direct course as it was wont to have Harvey It séems to me that the Action does not lye For a man cannot have an action of Trespass against me vi armis for doing of a thing in my own Soyl. But Trespass vi armis lyes against a Stranger who comes upon the Land and takes away my Cattell And such like things but not in this Case But he may have an Assise of Nusance As in Case where one makes an House joyning to my House So that it darkens my House by the erection of a new House I may have an Assise of Nusance against him who does it But Crook was on the contrary But it séemed to Richardson that he shall have Trespass on his Case but not vi armis And to that which hath been said That if one build a House to the nusance of another upon his own Land That he to whom the nusance is done may have an Assise of Nusance that is true And also if he will he may pull and beat down such an House so built to his Nusance if he can do if upon his own Land But he cannot come upon the Land of the other where the Nusance is done to beat it down per que c. Hutton of the same opinion By which it was awarded that the Writ shall abate And he put to his Action upon the Case Hitcham moved a Case to the Iustices One I. by Indenture covenants with an other that he should pay him annually during his life 20 l. at the Feast of St. Michael or within 20 daies after 10 l. and at the Feast of our Lady or within 20 daies after 10 l. The Grantée before the 20 daies passe and after the Feast of our Lady dies If the Executors of the Grantee shall have the Rent or not And the Iustices Hutton being absent said That it was a good Case And said that the Executors shall not have it Because it is not at all due untill the 20th day be past Fawkners Case A Lease was made to one for 40 years the Lessee makes his Testament and by that devises it the term to I. S. for term of his life if he shall live untill the said term be expired And if he dies before the years expire then the remainder of the years to F. for term of his life and if he die before the term be expired the remainder of the years to the Churchwardens of S. I. If the remainder to the said Church shall be good or not was the Question Because that the Wardens of the Church are not coporate so that they may take by that Grant Hutton and Harvy said that the Remainder was not good to them And said that the first Remainder was not good Peters against Field A Bill obligatory was shewed to the Court in Debt brought upon it And in the end of the Bill were these words In witnesse whereof I have hereunto set my hand and he had writ his name and put to his Seal also And because no mention was made in the Bill of no Seal to be put to the Bill It was moved to the Iustices If the Bill be good or not And it was agreed by the whole Court that the Bill was good enough Tomlinsons Case A Parson makes a Lease for 21 years The Patron and Ordinary confirm his Estate for 7 years the Parson dies The Question is Whether that confirmation made the Lease good for 21
not but a liberty given by the Conisee to the Conisor to be at large That does not release the Execution Dolbins Case IN a Replevin the parties were at Issue and the Plaintiff sued a Venire f. c. returnable such a day at which day the Sheriff does not return the Writ Wherefore the Avowant by Ward prayed a Venire fac with a proviso for him And it was granted by the whole Court Fossams Case A Man after the Statute of 27 H. 8. makes a Feoffment in Fee to the use of himself for term of his life and after his decease to the use of I. S. and his Heirs The Feoffor does waste And I. S. brought his Action of Waste And now if his Writ shall be general or special was the Demur in Iudgement And Hutton and the other Iustices were clearly of opinion That the Plaintiff ought to have a special Writ And so it was adjudged afterwards Doswell against Iames. IN Debt brought upon an Obligation Iames shews that the Obligation was endorsed with a Condition to perform all the Covenants comprised in an Indenture and he pleads that all the Covenants were fulfilled And does not shew in certainty the Covenants nor how they were performed And Hitcham said that the Plea was not good For there is a Diversity when one pleads in the Affirmative and when in the Negative For if in the Affirmative he shews in the certainty how the Condition or Covenants were performed And there is no diversity in my opinion between the Conditions which were upon the dorsed Obligation and the Covenants in the Indenture And it is to be thought that he who knows more of the Truth should shew it in his Plea And therefore he who pleads the Affirmative shews how the Conditions are performed Because it lyes much in his knowledge Whether he hath performed them or not But where he pleads in the Negative otherwise it is For there he is not to shew the certainty And yet I will agree that if one brings an Action of Debt upon an Obligation indorsed with a Condition The Defendant may plead the Conditions performed generally But otherwise it is of Covenants in an Indenture And in an Obligation with a Condition endorsed if he pleads the Conditions performed and he shews what thing he hath done If it be in the Affirmative he ought to shew the certainty of it also So that for that cause the Plea will not avayl Also it is incertain and doubtfull to the Iury. For if in that Case we are at Issue upon such a general Plea Although it shall be tryed by the Iury Yet it would be strange to enquire of such general things Wherefore c. Gerrard against Boden AN Annuity was brought by Gerrard against the Parson of B. And the Plaintiff counts That the said Parson granted an Annuity of 40 l. pro bono consilio suo imposter impenso for term of life of the said Parson And for 30 l. of arrerages this Action was brought Finch thought the Count not to be good And first it is to be considered If that Annuity might be assigned and granted over or not And as I think it cannot For an Annuity is not but as a sum of mony to be paid to the Grantee by the Grantor And not at all to the realty if the Land be not charged by express words in the same Deed. And to prove it If a man grant an Annuity to me and my Heirs without naming of my Heirs If the Annuity be denied it is gone Because my Person is only charged with the Annuity and not the Land So if a man grants to you the Stewardship of his Mannor of D. and to your Heirs you cannot grant that over And so of a Bayliwick But peradventure it may be said That an Annuity may be granted over in this Case Because in the Habendum It is said to the Assignees of the Grantee But that is nothing to the purpose as I think For I take a difference when a thing comes in the Habendum of a Deed which declares the Premises of the Deed For there it shall be taken effectuall but otherwise not As if Lands be given to a man and his Heirs habendum sibi haered de corpore suo procreat That is a good tayl But if a thing comes in the Habend which is repugnant to the Premises of the Deed and to the matter of the thing which is given by the Deed Then the Habend is void for that parcel As in the Case at Bar it is meerly contrary to the nature of the Annuity to be assigned over to another And there is no remedy given for it but an Action and it is Common learning that a thing in Action cannot be assigned over unless it be by the grant of the King Also by their Declaration they have acknowledged it to be no more than a chose in action Then a Rent seck for which he had not any other remedy but an Action after Seisin For he said that he was seised in his Demesn as of Franktenement of the Rent aforesaid Then it ought to be a Rent-seck For of no other Rent can a man be seised in his Demesn because they lye in prend As of Advowsons common for years and of Estovers And I will not agree that difference put by Littleton in his Book to this purpose For of such things which lye in manual occupation or receipt A man shall not say that he was seised in his Demesn as of a Rent Because it lyes in the prend Pasc 4 Car. Com. Hanc And in the 21 E. 4. The Case is doubtfull And Crawley of the same opinion Hitcham of the contrary And at another day Hutton said that the parties were agreed Hitcham We desire to have your opinion notwithstanding for our learning Hutton said We are agreed that the Annuity may be granted over and it is not so much in the personalty as hath been argued by Finch And in some Books it is said that a Release of personal Actions is not a Plea in a Writ of Annuity Groves against Osborn THe Case was thus A man makes a Lease for life the Remainder for life upon Condition that if the second Lessee for life dye in the life of the first Lessee That the Remainder in fee shall be to another And it was said That that Remainder might commence upon that Condition well enough It was said by Atthowe That where a Remainder depends upon a determination of another Estate So that none shall take any Estate by the Remainder upon Condition then the Remainder is good As if a man give Lands to A. for life upon Condition that if I. S. pay me 40 s. before such a day That the Remainder shall be to him That is a good Remainder But when an Estate is to be defeated by a Remainder depending upon that Then the Remainder is not good As if I lease Lands for life upon Condition That if the Rent be in
impedit was brought by King Iames and Demurrer joyned then and after they demised to the King whereof the Court was not before informed Wherefore although that for the matter they then shew'd their opinions Yet they were all resolved That the Quare impedit ought to abate And that Brownlowe chief Prothonotary had shewed them a Resolution in King Iames's time in this Court by all the Iudges to this purpose and the difference of the Information For after the Demise to the King the information stood As it is so it cannot be aided by the Kings Court Nor is it within that Statute of 1 E. 6. 7. For that Statute is betwéen party and party In debt for Recusancy where another brought an action in Right of the Crown Iacob against Iacob IN Debt The Issue was Whether the mony was paid or not And the venue was laid of the Parish of Ipswich and the return of the Sheriff was of Woolbridge And Hitcham said That there is not any venue And the Defendant upon the Statute if there be any tryall if any part of the venue be laid in the Tryal is ayded But if there be not any part laid then he is not ayded Richardson said If an action of Debt be brought of Trespass done at Dale where not guilty being pleaded the visue is de vicenet de Dale and the return is de Dale That is not good Hiâ—…cham Sergeant affirmed that it was Richardson and Hutton also agreed Nomina Iurata to be good And then what Action soever the Sheriff doth is not material and the Writ is right Hitcham I confess for any man collaterally to inform that there is not any thing of Ipswich shall not be allowed But so it appears to us upon the Record Richardson it may be intended That Woolbridge is de vicenet de Ipswich And adjourned But afterwards it appeared That the Venire fac was of Woolbridge And then all agreed that it was naught And a new Venire fac ought to issue c. Swintons Case SWinton assigns Debt upon an Obligation to another who sues in his name and declares upon an Ohligation of 70 l. And the Defendant pleads non est factum And a special verdict was found That the Defendant was bound to Swinton per quoddam scriptum Obligatorium gerens dat eisdem die anno As the Obligation upon which the Declaration was cujus tenor sequitur in haec verba c. And the Obligation was in 70 l. and that that is the same Obligation which was given in evidence But whether that is the same as it should be which they declare Juratores penitus ignorant c. Davenport for the Defendant prays Iudgment alleges that the Verdict is per quoddam And therfore it cannot be intended to be the same obligation upon which he declar'd For then it ought to be praedict But Hutton and Yelverton thought the Verdict to be good For they found the same date c. But your Question to us is Whether that Variance makes pluralities of Bonds But for the matter of Variance Davenport thought that it is material In the Kings Bench it was one Parryes Case in an Obligation of 500 l. There it was quimpe pro quinque And adjudged to be naught Richardson I confess the Case in H. 6. where it is Wiginti for Viginti and yet good For there is some colour of likeness But if the word be no latine word So that nothing can be known what was intended it is otherwise So one Randalls Case One was bound by these words in quatuor centum libris Whereupon it was doubted Whether it was to be intended 400 l. or 104 l. And it was adjudged naught Vpon which it seemed to be naught here And so seemed Hutton and Yelverton being only present Gammon against Malbarn IN an Assumpsit to pay 34 l. which accrew'd upon several promises First he surmised that one was indebted to him in 12 l. And that he would trust him more The Defendant came and prayed him to trust him and if he would he would pay him the old debt And whatsoever he should be in arrear more if it did not exceed 100 l. he would pay and shews how he afterwards sold to him divers pieces of Flesh at reasonable prices And that he lent him 3 l. which he promised to pay And then he came and requested him to pay the whole 34 l. But he would not pay the 19 l. for the price of Flesh nor the 12 l. c. Henden moved in arrest of Iudgment non Assumpsit being pleaded and found for the Plaintiff because that he does not allege before That the Flesh that he sold amounted to the price of 19 l. And Secondly because that he makes but one Request for the several Debts where it ought to have been several c. Hutton and Yelverton thought all good For the first Because that he refused to pay the 19 l. pro pretio c. But it had been better if he had alleged That the Flesh amounted to such a price But for the Demand that it was sufficiently made And adjourned c. Benson against Sankeridge IN an Assumpsit upon an Insimul computaverint The Plaintiff declares That he accounted for divers sums of mony to him due And that the Defendant was found in arrear as much as he assumed to pay And does not express for what the sums were due And by Richardson therfore naught For such an account for debt upon an Obligation in specialty it is void c. Hutton If he declared That the Defendant being indebted in diversis denariorum summis assumed it is void without shewing for what But here the action is grounded upon the Account Richardson It ought to be expressed in general the debts were for Wares sold c. But otherwise if the Account was for debt upon an Obligation or specialty he recovers double For the specialty remains notwithstanding the recovery in the Assumpsit Hutton We cannot think that it is for any thing but such things which lye in account Which Harvey agreed But the Court commanded to search Presidents Holford against Gibbes HOlford brought an Action upon the Case against Gibbes and his wife who was Administratrix upon a promise of the Intestate which appears in the Declaration that it was 16 years since the promise made And Sir Thomas Crew prayed to be discharged of the Declaration upon the Statute of 21 Iac. cap. 16. But the Court would not discharge him without pleading or demurrer But it was agreed That if upon the shewing of the Plaintiff himself the Action appears to be out of the Statute of Limitations Then the Defendant ought to plead the Statute And he shall be aided by the averment Richardson If the Defendant pleads non Assumpsit and the verdict finds that the Action grew out of the time of Limitation whether it shall be ayded by a special Verdict Crook said Yea But Yelverton seemd not For it is not pertaining to
payment of 72 l. And he alleges that the Defendant did not become bound in the Statute but that he himself delivered possession as soon as he could And upon non-assumpsit pleaded it was found for the Plaintiff And Atthowe moved in Arrest of Iudgement It is not a good consideration or promise He said that there was a Colloquium and an Agreement and in Consideration thereof c. That is not a good Consideration And the second Consideration that he delivered c. tam citius quam potuit It is not good for it is uncertain For it may be a year or two years or a day after And the other promise to pay 8 l. in the hundred deferendo diem And there is not any deferring the day for it is not shewn that it is due before and that he shall be bound in a Statute and that no sum is expressed which is uncertain Richardson There is a good Consideration and a good promise There was an Agreement touching the sale of a Banck and an acre of Land and take all alike and that perfects the Agreement And it is plain that the Agreement was for 72 l. and the delivery of the possession or making of assurance is not any Consideration But the promise is all the Consideration And he might have omitted the averment of the delivery of the possession But there is a cross and mutual promise upon which the Action might lye As many times it had been adjudged in this Court and in the Kings Bench. And for the words tam citius quam potuit the Law appoints the time scilicet so soon as he can go remove his goods things out of the House c. As in Case where one sels goods for mony the Vendee shall have for telling the mony And so here at the most till request be made And although it is not expressed in what sum he shall be bound by the Statute Yet it appears that it is for the payment of 72 l. And then the sum ought to be double in which he is bound As if one arbitrate that he pay 72 l. and enters into an Obligation for the payment of it That shall be in the double sum In which Case he said that he could shew several Iudgements of it Crook If one promise to me divers things some of which are certain It is good But also for the time of the delivery there the Law adjudges of that And the sum of the Statute shall be double as it had been said But for the Case of the Arbitrament it is adjudged contrary as 5 Salmons Case And admit that it be uncertain It is a reciprocal Assumpsit and an Action will lye upon that Hutton If a promise to enter into an Obligation there ought to be a reasonable sum as the Case requires for it And in this Case it being in a Statute which is more penal than an Obligation I conceive the same sum of 72 l. will serve And for the time of the delivery of the possession It ought to be in convenient time or upon request As 2 H. 6. And the Law adjudges of the inconveniences of time And although that he fails in the sum of his promises the end of his promise is good enough and the other is not concluded by that Action But he might allege other considerations in actions brought by him Yelverton There is but one promise against another And the sum in the Statute ought to be the same sum As the Case where an Annuity is granted of 20 l. untill the Grantee be advanced to a benefice That ought to be a benefice of the same value But I doubt whether it should be double Harvey It is there by way of promise And then one promise is the consideration of another and there is no breach for it ought to be upon request And then the Action being brought upon that side the request cannot be alleged and one promise good against another Then be the sum what it will ought the Defendant to be bound single or double The Assumpsit not being performed all agreed that the Action well lies A Verdict against an Infant NOte that it was said If a verdict pass against an Infant and the Defendant dies after verdict and it is shewn Iudgement shall not be given against him For the Court does not give Iudgement against a dead man and that is matter apparent and the other is doubtfull matter Fortescue against Jobson A Man seised of certain Lands hath Issue two Sons and devises one part of his Land to the eldest Son and his Heirs and the residue to the youngest Son and his Heirs And if both dye without Issue that then it shall be sold by his Executors and dyes The eldest Son dies without Issue And the opinion of Hutton That the Executors could not sell any part before that both are dead For the youngest Son hath an Estate tayl in Remainder in the part of his eldest Brother So that the Executors cannot sell it And if they do sell it yet that shall not prejudice the younger Brother So long as he hath Heirs of his Body Richardson said That although that the eldest Son aliens and after dies without Issue That the Exâ—…cutors may make sale For that that no interest was given to them But only an Authority to sell the Lands Dicksons Case A Writ de partitione fac against two the one appears and grants the Partition the other makes default Hutton said a Writ shall issue to the Sheriff to make Partition but cesset executio untill the other comes For Partition cannot be by Writ but between the whole Otherwise it is of Partition by agreement Rothwells Case IF a Man makes a Lease for life and the Lessee for life makes a Lease for years And afterwards purchases the reversion and dies within the Term yet the Lease for years is determined And the Heir in reversion may oust him and avoid But if one will make a Lease for years where he had nothing and afterwards purchases the Land and the Lessor dies If that be by Deed indented The Heir shall be estopped to avoid it By Hutton Crook and Richardson Sir Charles Foxes Case THe Case of Sir Charles Fox was now moved again by Henden It was objected that there ought to be an express demand at the day or otherwise he ought not to distreyn But first it appears that he had a good Title to the Rent then there being a verdict found he ought to have Iudgement upon the Statute But not admit that Yet the Demand is good for the words are legitime petit and no time expressed And although the Demand is after the day yet it is sufficient for all the arrerages for the words are tunc et ibidem but c. And the Difference is between the Demand which intitles to the Action and to the thing it self Maunds Case 7 Rep. 20. 40 Eliz. between Stanley and Read Where it was agreed That the day
a title be made there by prescription it is méerly coram non Judice and if they cannot meddle with the principal it is not reason that they shall tax costs And a prohibition was granted Fawkner against Bradley FAwkner and others against Bradley In false judgement given before the Sheriff of Bâ—…rkshire Bradley brought a replevin against Fawkner and the others who commanded the Sheriff to deliver the goods and summon the parties to appear The parties being demanded at the day they appeared and then the Plaintiff declared upon which it was proceeded to Iudgement And it was held to be naught For that he declared before any appearance But upon the default he might have an attachment and a distresse insuing Dame Sherleys Case DAme Sherley wife of Sir Henry Sherley sued in the High Commission Court for Alimony And Hitcham moved for a prohibition And said that alimony is not within the jurisdiction of the high Commssion For the Court of high Commission is to try ardua regni which are not tryable by the Common law Richardson The power of the high Commission is not de arduis regni but of heresies and of such other things Ecclesiastical And he said that the Court of high Commission had special words in their Commission but not in the Statute of primo and that the Statute de primo had no prerogative in that And so the question is if the King may by the Common Law grant such a Commission Hutton said that by the same reason as he may grant such a Commission They may grant Commissions for all other things Yelverton I marvail how that came within their Commission he said that in tempore Iacobi upon a debate before him Sir Edward Cook so fully satisfied the King And this matter of Alimony was commanded to be put out of their Commission And upon that Richardson said to Hitcham Move this again when the Court is full for we may advise of this Et adjournat Lynne against Coningham LYnne against Coningham in an action upon the case the matter was thus An action of debt was brought by the Plaintiff and he recovered and had a capias ad satisfaciendum to take the party The Sheriff arrests him and the Defendant made a rescous And in that if an action lies for the Plaintiff was the question And Ayliff said that the action did not lie against the party who made the rescous but against the Sheriff And he cited Fitzher Nat. Brev. 16 E. 4.3 where the difference is If an arrest be made upon a mean process and a rescous made There the Sheriff is not responsable Because that the Plaintiff might continue his processe against the Defendant But if it be upon Execution after Iudgement Now an action does not lye against the party but against the Sheriff And if he had an action against the party he shall have an action against the Sheriff also and so twice satisfied And the Sheriff shall have an action against the party and so he shall be twice charged Richardson said That the action well lies for the Case in 16 E. 4. It is séen there that it is doubted upon the mean proces execution as to the rescous the party may have an action either against the Sheriff or the rescoussers And in some cases a man shall have his election of the actions and both actions are but to recover damages A man had an execution against one He saw the man and conveyed him out of his sight And it was adjudged that an action upon the case lies against him And peradventure the Sheriff is dead then he should have no remedy if he had not an action against the party and no inconvenience follow For he that will do such a wrong it is no matter if he be charged by both If the Sheriff suffer one to escape it is an escape as to the Sheriff but the Plaintiff may have a new execution against the party if he will as it was resolved in this Court but Hutton on the contrary and that the action does not lie As if a man be imprisoned and an other help him out of prison yet an action will not lie against him by the Plaintiff And the difference is good where a man is arrested upon a mean processe and rescued and afterwards becomes non solvend so that they who rescued him is the cause of the loss of my debt It is a wrong upon which he may be indicted Yet the party shall not have a remedy against him because that he may proceed And then he should be the cause of multiplicity of actions Yelverton was of the same opinion and agreed that difference put before And that there is no difference between this case and the case put by Hutton For a rescous made half an hour after the arrest is all one as if it were a year after And Fitzherb nat brev 102. satisfies me Harvey on the contrary He who was injured the law gives him a remedy against the party who did the wrong In the Kings Bench the case how one came to take in execution by a fier fac the goods being in an house and one séeing the Sheriff came and shut close the door and adjudged that an action upon the case lies against him And there is no difference between our case and that where one comes to make execution and the other makes a rescous Richardson in Greshams case Gresham was possessor of the glasse house at Black-fryars Beresford was a Glass-mamaker and had many glasses in Greshams house Seaman recovers in debt against Beresford and coming to make Execution of those glasses Gresham standing at his door séeing them coming and knowing their purpose shut the doors Seaman brought an action upon the case against him and judgement was given for the Defendant because that the Sheriff never demanded the Key to open the house 18 E. 2. If he had demanded the Key it had been adjudged against Gresham And there if an action upon the case will lie for hindring to make execution a multo fortiori when it is actually done and then the party rescued And he denied the case put by Hutton where one is rescued out of prison And said if one be rescued from the Bayliffs the Sheriff ought to have the action Hutton upon a mean process the Sheriff never had remedy for the rescous but he shall return the rescous But upon an execution he shall not return the rescous but he shall have an action and that the party is not prejudiced for he shall have an action against the Sheriff who in judgement of law is the party lyable Crook That the action will lie is a mischief on both parts The Defendant may be twice charged and the Plaintiff may lose his Debt But I conceive the action well lies against him who made the rescous c. And if the Sheriff brings the action he may plead the recovery by the Plaintiff when the Sheriff makes his return of the
three things were moved in arrest of Iudgement which Serjeant Barkely answered There was a covenant to enter into an obligation at Michaelmas and the Plaintiff shews that he entred before So he does not perform the consideration which he conceived to be a good performance For if a man be bound to doe an act or pay money at Michaelmas a payment before is good H. 7. 17. 2. pasc It is shewn that an action of Covenant was brought after And they say that upon his shewing covenant does not lie but debt but he said that the Plaintiff had his election here to have debt or covenant As in the Lord Cromwels case the words covenanted provided and agreed give advantage of a condition or covenant If a covenant had been sor 30 l. then debt only lyes But here it is to perform an agreement Thirdly that it appears within the declaration that the action of the case was 6 years before the action brought And so by the Statute of 21. Jac. the action does not lye I agree if the cause was 6 years before yet the breach was within the 6 years and that is the cause of action 6. rep 43. In a covenant there is the deed and the breach of the covenant and that is the cause of the action And therefore being matter in Deed an accord with satisfaction is a good plea to it 13. E. 4. Attaint is grounded upon matter of record but the false oath is the cause of it For that there also accord is a good plea So in our case the non performance by default was not at the time limitted which was before the 6 years but no action was brought against the Plaintiff untill within the six years And then he is not damnifyed untill within the six years 5 Rep. 24. Richardson For the two first exceptions he agreed with Barkley as to the third he said that there can be no action before the breach of the promise or covenant But the breach here is before the six years for the non performance of the agreement is a breach and a breach is a damnificationn In one Boughtons case the non payment is a damnification But all the question here was whether that ought to be pleaded but I conceive that it need not for by the Statute-law the action is taken away And it being a general law the court ought ex officio to taken notice of it For in that after verdict if it appears that there is no cause of action although the verdict be found for the Plaintiff he shall never have Iudgement And upon the matter that latches in time amounts to a release in law the proviso cannot ayd you For every man shall be intended without those disabilities for that that he would shew that he would have advantage of it And Crook of the same opinion for the reasons given before and said that although the Statute took away the Common law yet it is good law and done for the ease of the subject and for that shall be favoured as the Statute of limitations in all cases But he said the non performance was not a damnification before the action brought As if I be bound as for surety for A. who is bound to save me harmlesse Although he does not pay it at the day There is not a breach before the arrest or Iudgement For by the Iudgement the lands and goods are liable But for the arrest his body is troubled for that now the Scriveners put in such obligations that they save harmlesse the party and pay the money at the day But for the other matters in all he agreed and cited Richardson and Burroughs Case Where a payment before the day was adjudged a payment at the day Yelverton That is not found that there is any sufficient notice given to the Defendant by the Plaintiff of the agreement made which he ought to have And he agréed in omnibus with Richardson and said that Scriveners use things ex abundanti Richardson It is said habuit notitiam in the Declaration but does not say by whom Yet after verdict it shall be intended a good notice And although that Nichols had given the notice it is sufficient If there be a Lease for years upon condition that he doe not assign the other accepts the rent of the Afsignee before notice He shall not be bound by that acceptance before notice But if notice may be proved either by the Plaintiff or by any although it be by a meer stranger It is sufficient Yelverton denied that for he said That none but privies can give the notice of it as the case is Et adjournatur Denne and Sparks Case before RIchardson If a will be of lands and goods and that was the occasion of this will the revocation is only tryable at the Common Law But when the will is of goods only the occasion of it shall be tryed only in the Spiritual Court For it is incident to the probate of the will quod fuit concessum And he said that in the case before if the will be not revoked the devise is good at the time and the administration shall be granted as of his goods for the Law will not change the property of the residue after debts and legacies paid Crooke The case here is that the Testator makes his will of his lands and goods and devises the residue of his goods ut supra to his wise his Executrix who dies before probate Denne sues to be administrator as the goods of the first Testator and alleges revocation which because that his Proctor did not goe and swear that in fide Magistri sentence was given against him Vpon that he appeals in which there was the same Obligation and affirmed by the Oath of his Proctor Yet sentence was given against him And a prohibition ought to be granted for three reasons First For that the Will is of Lands and Goods and the occasion of that tryable here Secondly they offer injustice in giving the allegation Thirdly The Wife here dying before the probate the administration ought to be granted as of the goods of the Testator and not as of the wife And also they here would inforce Denne if he had the administration to take it cum testamento annex Which shall be an admittance by him that there was not any revocation Richardson for the first reason he agréed that the revocation shall be tryed by the common law But the goods here are only in question and all the usage and practice is that a prohibition shall be granted with a quoad the lands For the second That they will not allow the allegation If they will not pursue their rules and order of Iustice That is not a cause of a Prohibition but appeal for the third It is fit that there shall be an election if debts and Legacies are owing But it doth not appear here that there are any debts or Legacies to be paid but after Harvey agréed with Crook
and Yelverton And a prohibition was granted Holmes against Chime before PResidents were shewn that such actions were brought scil Hill 3. Car. Elwin against Atkins and Hill 1. Car. Cophin against Cophin both in this Court. And Richardson said although the book makes a doubt of it yet his opinion was that the action would lie For it would be a miserable thing that all things should be shewed precisely And so Iudgement was given for the Plaintiff Port against Yates IN a replevin the case was The Defendant was known as Bayliff to Thomas Kett and the land was Copyhold land And 10 Maii. 3 Car. When it was granted by the Lord of the Mannor to the wife of Thomas Kett. The Plaintiff confesses that the Land is Copyhold land but that the Lord granted 1 Iacob to Robert Salter in Fée who had two daughters the wife of the Plaintiff and the wife of Thomas Kett and dyed seised and that the land descended to them upon which they demurred Berkely The first grant shews that the Defendant was in of all and the descent to the wife but for the moyety whereupon the grant of the whole is not traversed nor confessed and avoided And he cited Dyer 171. Pl. 8. to be the same case in effect and so ruled But Hutton Harvey and Crooke held what difference there was betwéen this case and the case in question Hutton the descent here which is pleaded makes the second grant void But by Richardson although that it be avoided Yet it is not confessed And afterwards for that that upon the whole truth of the matter disclosed It appears that a Copartener cannot distrein the lands of another damage feasant and the matter of form in pleading ought not to be regarded by the Iudges upon the Statute of 21 Eliz. cap. 5. Iudgement was given for the Plaintiff Cockett against Delayhay COcket brought an action upon the case in Bristow against Delahay for these words Cockett hath forged a deed and because of that came out of his own Country And the Defendant justifies that he did forge a Déed in Middlesex of lands in Hartfordshire without that that he spoke in Bristowe Richardson said that that plea was naught either with traverse or without the Traverse Whereupon Henden altered his plea scil That he forged a déed of those lands at South Mimms in Middlesex where the lands lie By vertue of which he justified the words at Bristowe Richardson It is a good plea for now the other can plead nothing but de injuria sua propria And then the tryal shall be in Middlesex And by Crooke if there be a Demurrer there shall be a writ of inquiry of damages issue to Bristowe Issue IF the issue be not made up it may be tryed by Proviso But if the Plaintiff neglect that there may be called a non-sute upon the roll for there it shall be discontinued quod nota Page against Tayler PAge brought an Action against Tayler as Receiver c. which was found against him c. And Iudgement was given that he accounted and before the Auditors he pleaded that before the Action brought there was an arbirement that he should pay to the Plaintiff 11 l. in satisfaction of all accounts and demands which he had performed And it was ruled by the whole Court that that was not a good plea in discharge before Auditors but a plea in bar of the account And by Crooke an accord with satisfaction may be pleaded in Bar not in discharge Which the Court seemed to agree And by Crooke If the Defendant had any other matter to shew on the Declaration before Auditors it might be shewn c. Richardson Although that the Arbitrament was made after the action brought it cannot now be pleaded but he ought to have his Andita querela Manninghams case In Manninghams case The doubt was this A condition of an obligation made to Manningham was that he should pay after his death to his Executors after his death 10 l. per annum to the use of the Children of Manningham And Manningham dyed and there was no Executor whether the payment should be to the Administrator and so the obligation forfeited Berkly said that it ought to be payed to the Administrator for an Executor includes an Administrator And this money is as assets if not to satisfie debts yet to perform this case which is illsgal 5 H. 7. 12. 26 H. 8. 7. And also if a man limit a thing to be done to his Executors that may be done to his Administrators So that the nominating of the Executor is not but an expresse intention to whom the money shall be paid viz. to him who presents his person And he compares that to the case of 46. E. 3. 18. A rent upon a condition reserved to the Executors goes to the Administrators 15 E. 4. 14. Dy. 309. Cranmers case Where it seemed that if a lease be made to one for life and after to his Executors for years that the Executors shall not have the term as assets 32. E. 3. A quid juris clamat Fitzharb A Lease for life to his Executors for years in remainder Lessee for life atturns saving the term which proves that the Executor had that as privy not as strangers And he cited Chapmans and Daltons case the principall So that the Infant and the Executors shall have the money in right of the testator and therefore it goes to the Administrator Secondly The Executor extends to an administrator 8. rep 135. there kindes of Executors and an Administrator is an Excecutor datinus 3 H. 6. An action is brought against divers executors by the Statute when some appears upon the distresse it answers that extends to an Administrator although the Statute names only Executors Thirdly It does not appear here that Manningham made not Executors for it may be that he made Executors and that they dyed intestate or before probate And he cited 18. H. 8. And Shelleyes case 1. rep and 33. Eliz. If Executors dye before probate It is in Law a dying intestate Richardson Here is but meer trust and as it hath been said It doth not appear whether he had made Executors or not For if he dye and makes Executors and they dye before probate or refuse he dyes ab intestato but not intestate Nor shall it be questioned if the obligation had been to pay to Manningham only or to him and his Executors But it goes to the administrators But because that he had specially put his Executor Whether he ought to have the forfeiture of the obligation or whether he ought to have the sum to be annually payed to the Administrator Berkley the letters of administration make mention that he dyed ab intestaro Atthow That is matter de hors but by the declaration it is clear that he dyed intestate And the action brought by Administrator who who had not any cause of action Secondly admitt that there was an Executor and the money payed to him that
is not assets For it is not the money of Manningham but taken by him to pay to another And Richardson said If the party had dyed intestate by the Common law the Administrator is Executor and all things that were to be performed by the Executor are to be performed by the Administrator There was an obligation to A. to pay to the Executors of B. It shall be more doubted there whether it shall be payed to the Administrator But the obligation here is to Manningham himself Now his Executors comprehend Administrators And Needhams case is plain in that And the mention was that the money shall be payed to these that succeed him in his personal Estate Now it was not the intent that it should be lost if he dyed without Executors Crook an action of debt being brought against an Executor upon an obligation plene administravit is pleaded Then Administrator being included in the word Executor there is a good cause of Action And the Court seemed to be of the same opinion Sed adjournatur Fowlers Case FOwler libels for tithes and a Prohibition was prayed upon a suggestion that he came to the Church by Symony By the Court a Prohibition ought to be granted upon a surmise only that he came to the Church by Symony Then Henden shewed That it was found by verdict in the Kings Bench That he came in by Symony And upon that verdict there was a decree in the Court of Wards accordingly And then the Court inclined to grant a Prohibition And the Case here was That Fowler being convicted of Symony the King presents Glapthorn who was admitted instituted and inducted And afterwards he takes another benefice above the value of 8 l. by which the other was void Yet by the assent of the Lord Windsor Patron Fowler continued possession And by Richardson He cannot be any way removed untill laps incurre Strange against Atthowe SIr Hamond Strange brought trespass against Christopher Atthowe And the trespass was done 8 years after but with a continuando unto the time limited by the Statute 21 Iac. And by Richardson the action is toll'd by the Statute For the continuation within the time makes the Trespass within the time And it is not like the Case in Dyer 119 pl. 17. In the turning of a Cock It was adjudged a new diversion for it was a new action But here is not a new act done Richardson the Statute of 21 Iac. may be well pleaded in this discharge of that action And you ought to commence for all not done after the time of the limitation within the Statute otherwise the Statute should be overthrowed For by that means the continando may punish a trespass done 20 years past with the alleging of a continuando Hutton Crook of the same opinion Yelverton on the contrary who said that it was not material if the Statute was overthrown But the other Iustices said it was a good Statute Crook Suppose that you cannot prove your continuando for in trespass it is not requisite indéed to prove it For it is only put for increase of damages But Hitcham said Now by the Statute the continuando shall be proved Then by Richardson Hutton and Crook You will make a fraction That the trespass shall be partly upon the Statute and partly upon the Common law It was ruled again according to that before That when a Will was proved in the Prerogative Court The Executor or Administrator may be cited out of â—…e Diocess where he lives to the Prerogative Court Because that the Will cannot be executed a libi than where it was proved And so that is out of the Statute of 23 H. 8. But by Richardson Hutton and Yelverton Where a Will is proved in the Prerogative Court That it shall be proved in the proper Diocess also of the Executor then it may be executed there Richardson said The privilege for them of the upper House continued 30 daies after the Session where the Parliament of the lower House but for 20 daies And that the privilege extended to Person Goods and Lands Nortons Case Mich. 4. Car. Com. Banc. IN Nortons Case before A Consultation was granted because of a Custome alleged and found for the party But by Crook and Yelverton There are divers Presidents where in that Case a Prohibition was granted without alleging a Custome Allen against Westby before IT was ruled That the Defendant shall not have costs against the Informer they being found against the Informer And Brownlow affirmed that the course of the Court is That upon the Statute the Defendant shall never have costs against the Informer Although Binge cited a President to the contrary Termino St. Mich. Anno 4 Car. Reg. Com. Banc. Gosse against Skipton IN the Court of Requests Gosse borrowed mony of the Testator of Skipton and gave a term whereof he was possessed for five years to him for security by Indenture with a Proviso of redemption And shews further in his Bill that there was a verbal Agréement between them That if the mony was not paid at the day the Testator should take the profits growing upon the Land And if the profits amounted to the value of the sum of mony that then he shall have his term a-again And that he reaped the profits accordingly which well satisfied him and yet he continued possession of the term Which afterwards came to Skipton and is now expired And so he prayed that the Defendant might account for the profits And the Defendant moved for a Prohibition Richardson Although the trust is contrary to the Indenture yet such an averment is good notwithstanding the Proviso But for that that the Executor shall account to none but the King and the years are now spent And although he occupied the same yet the profits shall be Assets And if it shal be received in the Court of Equity there shall be a Devastavit against the Executor And by the whole Court a Prohibition was granted Rolls against How A Man arrested upon a Latitat makes an Obligation to the Sheriff with a Condition to appear And the Question was if it be good For he may make his appearance by his Attorny Although Hutton thought it was not good For the Law intends that he is in person when he is in custodia Marescall And Brownlow said it was adjudged accordingly when Mr. Tomkins Bayliff of the liberty of St. Andrew took an Obligation in his own name for a personal appearance upon a Latitat At an other day Atthowe moved that the Bond was void For the Statute is general that he shall take a Bond for his appearance And now the Sheriff here had taken a Bond for his personal appearance And there he might answer to the Action by his Attorney But that he ought alwaies to be in custodia Marescal which is meant in proper person and he ought to put in bayl which is good enough It was ruled that Iudgement should be entred for the Plaintiff if cause
And a Condition that a Lease for 3 years shall be void if the Lessor dye during the term is a good Condition Without doubt the custome is as old as the Estate then it is as good to abridge the Estate as to the other to create it is It is reasonable too For the Lord should have his Tenant in possession by which he may the better pay his Fine But if the Lease be made by Licence of the Lord It is a Confirmation For that if the Copiholder makes a Lease for years with Licence and dies without Heir The Lord shall not avoid the Lease In some place the custome is If a Copiholder dies before Candlemas the Executor shall have it for that year to remove and dispose the Copiholders Estate Custome in this Case you see tolls the Heir And he agreed the Case and difference cited by Atthowe out of Cook Littleton Harvey agreed That it is a good custome for the Lord and for the Tenant For the Lord to know his Tenant and for the Tenant to have the Estate and pay the Fine Yelverton agreed also the Lease for a year is in it self made by custom And the same custome may confound it For there is a concurrence of others or one may controll another 21 H. 7. 14 H. 8. A Lease for years provided the Lessor may enter at his will that is a good lease determinable at will being uno flatu so So in our Case But it is done that a Copiholder within the year surrenders his Copihold that the Lease shall be void That is an unreasonable custome In the Kings Bench It was adjudged A Copiholder makes a Lease for years by Licence and the custome if the Lessee was not in possession at the time of the death of the Lessor that it shall be void Lessee assigns that over and the Assignee holds it For custome ought to be taken strictly And he agreed the Case put by Hutton of an Executor And the difference that against the Lessor it should not determine And the reason put before And so judgement was given for the Plaintiff Stone against Walsingham before THe case was again moved in Court which was that they agreed de anno in annum so long as the one should be Parson and the other Parishioner si ambobus partibus tam diu placuerit he should retain his tithes for 6 s. 8 d. per annum And Richardson Iustice said and it was not denied that the suggestion is naught for the incertainty of it and a Prohibition cannot be granted upon that For the words de anno in an make an estate for a year And the next words make an estate for life the last but an estate at will what shall be traversed here It is seen that for years it is good without Deed but not for life And if it be but at will when the other demands his tithes the Will is determined But at an other day the suggestion was made That he made severall agreements with his Parishioner that he pay 6 s. 8 d. for his tithes for 4 years And then a Prohibition was granted Harvey sufficit If an agreement be proved for those 4 years Wilson against Peck WIlson brought an action upon the Case against Peck and declares A Man may justifie in maintenance that he was a Sollicitor That the Defendant in consideration that the Plaintiff should be his sollicitor in several sutes depending against him in this Court affirmed that he would give to him for his pains as much as he deserved And he said that he deserved five marks And upon an Assumpsit pleaded it was found for the Plaintiff And it was moved in arrest of Iudgement that the consideration was against Law because that it was maintenance But Henden on the contrary And that it was lawfull to have a sollicitor 5 H. 7. 20. There it is said that a man may justifie in maintenance that he was a sollicitor And the fees of an Officer 3 Iac. cap. 7. gives satisfaction in that case It was said that a sollicitor is not a man known at the common law but an Attourney and had his fees set out by the Law 9 Eliz. Dyer Onelyes case But Munson and Manwood held that it was maintenance in a sollicitor to prosecute and pay money for another And Dyer did not oppose that opinion Pas 13 Iac. Rot. 75. Com. Banc. Solomon Leeches case An Atturney of this Court brought an action upon the case for solliciting of sutes And there it was conceived that it was an ill consideration and could never have judgement But Richardson said that in Solomon Leeches case he brought an action for the money disbursed and not only for as much as he deserved for his labour And said that a Sollicitor is a person known in the Law 1 H. 7. And it was one Snowdens case One brought an action against him And he justified that such an one made a title to his Clyents land and that he was his Sollicitor in the suit And ruled to be a good Iustification By which it appears that a Sollicitor is a person known in the Law And the Stat. 3 Iac. much prevails with him for to be of that opinion And it would be a miserable case if you would allow no Sollicitors but Attourneys in the Star-chamber Chancery For there the Attournies will not move out of their Chambers And also it is convenient that Attournies of this Court follow businesses in the Kings Bench And the case was in consideration that he would be my servant and follow my sutes I promise him as much as he deserved An action will clearly lie here and a Sollicitor will not alter the Case For he is not but a servant Hutton on the contrary I may retain a man in my service he may follow my sutes but then he ought to maintain the action upon the Statute For a Sollicitor is within the Statute and a Sollicitor of sutes is one kind of maintenance and we ought not to allow it And so it was taken in Leeches case That there was no remedy for a Sollicitor if he had not an obligation And he said that in the Star-chamber in the time of Egerton a Sollicitor was punish'd there Yelverton agreed with him Harvey said that the same case is now depending in the Kings Bench. And the opinion is that an Attourney or a Counsellor who had a profession towards the Law might sollicite any sute in any Court and it is not maintenance But another person not Yelvert agreed to that but said that he ought to shew in his Declaration that he is an Attourney And afterwards the parties agreed c. Scire facias against the Bayle IF a Scire facias be brought against the bayle and Iudgement be Debt be brought against the bayl that the Plaintiff be satisfied out of the lands and chattels of the bayle and so a capias does not not lie against them But if debt be brought as
Hill 4 Car. Com. Banc. that is a good Grant and charges the Heir although it first commenced upon him Yelverton said he charges himself And the Grant is for him and his heirs And warranty which is so granted to commence 40 years after although the Father dye before the commencement of it yet it binds the Heir And so it is of an Obligation to be paid 40 years after Quod concessum fuit Beckrows Case IN one Beckrows Case in evidence to the Iury c. Beckrows intending to a mary a Widdow makes a conveyance by Deed of Feoffment of his Land to several uses by which he setled his Land upon the issue of the Feme having issue by a former wife But after the mariage he by much importunity procured the Déed of conveyance into his hands out of the custody of the Wife and also an Obligation which makes mention of it and it was for performance of Covenants and then he cancelled the Deed and the Obligation and took off the seal from them And afterwards settles his Land upon his former Children and dies having Issue by his last wife And in actions under these conveyances It was permitted by the Court that the cancelled Deed should be read in evidence But first there should be Testimony given of the truth of that practice before it should be read c. A Copiholders Case IT was said by Richardson to Harvey privately That there is almost no Copyhold in England but the Fine in truth is uncertain For if the Rolls make it appear that some time a lesser and sometime a greater sum had been paid for a Fine that is an uncertain Fine And he said that he was of Councel in a Case where the Iury found that the Fine was certain And afterwards by Bill in Chancery It was decreed upon search of the Rolls to be a Fine incertain And that is now the ordinary course scil by decree in Chancery Francis Bill against Sir Arthur Lake FRancis Bill was Plaintiff in an Assumpsit against Sir Arthur Lake who assumed to the Plaintiff that in consideration that he would make for his wife certain apparel and prepare stuff and lace for it That he would pay for the stuff and making as much as should be required And he shews that he provided Sattin and Gold-lace and made the Apparel and shews of what value the Stuff was and what he deserved for his labour which amounted to the value of 39 l. and that he required the Defendant such a day to pay him which was within six years before the action brought but the promise was laid to be 7 years before The Defendant pleads the Statute of Limitations and that the Plaintiff did not bring his Action within the six years after the promise made nor within the 3 years after the Parliament ended But he does not shew when it ended Vpon which there was a Demurrer And by the Court the ending of the Parliament néeds not to be shewn here For the Question is not upon the 3 years after the ending of the Parliament but upon the matter in Law whether an Action ought to be brought within six years after the promise or after the request Richardson said That it ought to be within six years after the promise Here are two causes of Action for the words of the Statute are within six yenrs afcer the cause of Action the promise and the request and the promise is the principal Trin. 5 Car. Com. Banc. and the Action took its denomination from that scil an action of the Case upon an Assumpsit And if there be a demand which is the case of Action Here it will be answered the promise for a Request without promise is no cause of Action And the mischief that the Statute intended to remedy was that a man was should not be put to the proof of the matter de facto so long time after And if the request is said to be the cause of Action the promise may be laid 20 years before and although that may be proved But the other 3 Iustices were against him and said That the intention of the Statute is within 6 years after the cause of the Sute given which is not untill after request As if one promised to another so much when he should mary his Daughter The 6 years there shall be after the mariage Or if one promise such a sum to one at his return from Rome or such a place from whence it is not impossible to return within six years The payment shall be after the return and there is not a cause of Action before and also the promise and the Request are intire For the request is part of the promise and the promise is not intire untill the request They agréed if a man makes a request and suffer the 6th year to pass before an action brought and then makes a new request And this Case was more strong because the consideration was future Heidley said there was a difference where the request is necessary and where it is alleged but for form As if I sell a Horse for 10 l. generally and after the 6 years brought an Action upon the Case upon an Assumpsit against the Vendee and shews in his Declaration that he was to be paid when he would require it licet saepius requisit c. within the six years Here the Plaintiff is barred For it was due by the contract and the request is but formal If a man brings an Action within the 6 years and afterwards is non-suted for want of request shewen where it was necessary and makes a new request after the 6 years and brings his Action It is good Which was granted by the Court. And in this Case the Court taxed Henden for advising the Defendant to plead the Statute and hazard it upon Demurrer When he might have tryed first the matter in fact But Henden said it was dangerous not to plead the Statute For the opinion of the Kings Bench and Exchequer seemed to be that it ought to be pleaded By the Court when it is apparent within the Record that the Action is brought after the 6 years certainly they doubted not but the Statute ought to be shewn in arrest of Iudgement But the doubt is when a general issue is pleaded in an Assumpsit or Trespass and it does not appear in the Trespass or Assumpsit that it was above the six years the Statute now may be given evidence Trin. 5 Car. Com. Banc. Starkey against Taylor STarkey an Attorny of the Common Bench brought an Action against Taylor for slanderous words and declares that he being an Attorney of the Common Bench of honest fame c. and that he gained much by that profession which was his Livelihood the Defendant maliciously and to hinder him in his profession spoke these words of him Thou art a Common Barrettor thou art a Iudas and a Promoter and a Destroyer and a Viper and a Villain and
the principal case Iudgement was given for the Plaintiff Iohn Costrell against Sir George Moor. JOhn Costrell and Ioan his wife brought an action upon the Case against Sir George Moor and declares That whereas the said Iohn and Ioan were seised of a Messuage and lands in right of his wife Ioan A man having land in right of his wife in trust they cannot both joyn in the action but the Husband only and that the said Iohn and Ioan and all their predecessors time out of mind c. had common in such a waste which is the soyle of the Defendant pro omnibus a veriis levantibus cubantibus c. and the Defendant had inclosed 20 acres of the said waste and made a fish pond of it there so that they could not take the profits as before with their cattel Vpon the general issue pleaded it was found for the Plaintiff And Crawley moved in arrest of Iudgement For that the prescription is ill made and that the Husband and wife cannot joyn in this action but the Husband might bring the action only And also where it is said that they cannot take the profits with their Cattel when the wife cannot have Cattel during the Coverture Richardson said the prescription is good and it would have been better if he said all those whose estate the wife had But this tantamounts and is as well in substance for that goes meerly to the estate of the Wife Trin 5 Car. Com. Banc. which was granted But for the second I doubt if the Wife may joyn in this Action If a man be seised in right of his Wife he may have Trespass for Trespass done upon the Land there the Wife shall not joyn for she cannot have the dammages if she survive And there is no difference between this Case and the principal Case It is Trespass on the Case and for the personal and temporary trespass and such for which the Wife should have the Action after the death of the Husband unless that the Defendant continue the Pond c. I agree if Battery be done to the Wife they both shall joyn for the Wife might have had the Action if she survived And so it was resolved in the Cooks of Grays-Inns Case they might joyn For the wrong was done to the Wife But here the Husband only lost the benefit of the Common and the wife could not take it with her Cattel For she had not any Cattel during the coverture And Yelverton also was of the same opinion But Hutton said In a Quare impedit the Husband and Wife shall joyn And yet the avoidance goes to the Executors of the Husband Hitcham In an Ejectione firm or ravishment of Ward the Feme joyns quod concessum fuit Yelverton said that in 4 E. 4. it is express that the Wife shall not joyn in trespass done upon the Land of the Wife for dammages shall be recovered in lieu of profits Moor against Everay MOor and his Wife brought dower against Everay To parcel he pleads non tenure and to the other parcel ne unque seise de dower which goes to the tryal and there the Tenant makes default and upon that a petit cape is awarded and now at a day in bank one Lumbard prays to be received upon the Statute of Gloucester to save his term c. But Henden alleged to the contrary First That Statute is not to this purpose in force by the Common law Tenant for years cannot falsifie 6 Rep. Periams Case Then because it was hard that a recovery should be had by Covin and the Lessee for years without remedy for his term the Statute of Gloucester was made which gives a receipt for the Lessee for years after the Statute 21 H. 8. was made which gives the Lessee power to falsifie The Common experience of the Court is If an habens facias seisinam issue there is not any saving of the term of Lessee for years Hil. 39 Eliz. in Bests Case A receipt was moved and denied For if the Lessee had a good term he might have trespass for entry upon him Littleton though says in his Chapter of Tenant for years that he shall be received Hutton The Statute of Gloucester aids them only who knew and had notice of the Recovery 21 H. 8. aids them who had not notice of it And it is better to prevent mischief than to remedy it after and as to that a final Bar. I was of Counsel in some Cases where the Lessee was received And if the Lease be not good the Lessor may avoid it by Plea scil Traverse or Demurer And I remember the issue taken upon the Term and found against the Termor And it was Mr. Fulhams Case against Sergeant Harris Sed adjournatur Fawkenbridges Case IT was moved he having Iudgement before to have costs where the Court doubted because that it was a special Verdict and the Statute of 23 H. 8. cap. 15. says That where a Verdict is found against the Plaintiff But in a special verdict it is neither found for or against But it may be said that when it is adjudged against the Plaintiff then it is found against him And 4 Iac. cap. 3. which gives costs in an Ejectione firmae had the same words if any verdict c. But it may be answered That as in Demurrer no costs shall be recovered no more in a special verdict For that the Plaintiff had a Prohibition causam litigandi And the Statute may be intended of vexatious Sutes c. But Brownlowe said that he had many times given costs upon the Statute of 4 Iacob For that the Prothonotaries were commanded to search Presidents The University of Cambridge THe Vniversity of Cambridge claimed by their Charter to be Clarks of a Market and that they had power by their Office to make orders and execute them And they made an Order that no Chandler should sell Candles for more than 4 d. ob the pound And because that one R. sold for 5 d. he was imprisoned and a Prohibition granted But it séemed that an Habeas corpus was more proper For he was not presented First For that they could not imprison without course of Law Secondly Because that as Clarks of a Market they have nothing to do with but Victuals and Candles are not Victuals The Sheriff of Surrey against Alderton THe Sheriff of Surrey returns a rescous against one Alderton That whereas there was a Iudgement had against B. and a fieri facias awarded upon that by vertue of his Warrant directed to R. to take the Goods of B. By vertue whereof such a day the said R. diversa bona catalla ipsius did levy and had them in his custody No rescous can be of Goods and one Alderton rescued them from the Bayliff contra voluntat ipsius Rich. The return is naught First For that that it is rescued from the Bayliff Secondly It is of Goods whereof a rescous cannot be returned Yelverton contrary in
contained in the Declaration That the Defendants were guilty before scil October Vpon which the Defendants demurre and Iudgement was given for the Plaintiff Although it was objected that the Iustification here by the Custom before had taken away the property And I shall be debarred in Detinue and so in Trover But the Court was of the contrary opinion That the Defendants Plea in barre here shall not be good without traverse as it is and therefore the time is not made material but any time before is sufficient Méer possession sufficeth to maintain a Trover Pasc 7. Car. Com. Banc. Eaglechildes Case FInch Sergeant said that 6 Car. in the Kings Bench it was ruled upon Bill of Exchange betwéen party and party who are not Merchants There cannot be a Declaration upon the Law of Merchants but there may be a Declaration upon the Assumpsit and give the acceptance of the Bill in Evidence Crompton against Waterford WAterford was sued in the Spiritual Court for saying these words of the Plaintiff she will turn tayl to tayl with any man intimating that she would be naught with any man And sentence was given for the Plaintiff Whereupon he appealed to the Delegates propter gravamen And the Delegates overruled it and assesse costs for the wrong appeal Then there was a prohibition granted because the words were idle words and not punishable in the Spiritual Court Hutton seemed That the costs taxed by the Delegates are not taken away by the Prohibition Richardson on the contrary For the principal is prohibited and the costs are incident And because that a prohibition stays all proceedings the costs are taken away If the costs are to be executed by the Delegates then the prohibition to them will help But if the costs are remanded to the inferiour Court as well as the cause then the prohibition to the Inferiour Court will help So quacunque via data the costs are to be discharged And the party if excommunicat be dissolved And so agreed by the Court. Alleston against Moor. ALleston an Attourney of this Court brought an action upon the Case against Moore for calling him cheating knave and it was not upon speaking of him as an Attourney And for that by the Court in arrest of judgement It is not actionable If he had said you cheat your Clients it would be actionable One said That my Lord Chief Baron cannot hear of one ear colloquio praehabito of his administration of Iustice And it wad adjudged actionable Otherwise it had been if they had had no discourse of his Iustice Trin. 7 Car. Com. Banc. Coxhead against Coxhead IN Debt upon an Obligation the Condition was to perform an Arbitrament and the Defendant pleads nullum fecere arbitrium The Plaintiff replies that they made such an arbitrament and recites it the Defendant rejoyns that the Condition was to make an arbitrament of all things in controversie and that other things were in controversie whereof no arbitrament was made The Plaintiff sur-rejoynes that the Defendant did not give notice of those upon which issue was taken and no place alleged where notice was given And that exception was moved in arrest of Iudgement And upon that Iudgement was stayed Trin. 7. Car. Com. Banc. NOte It was said by Richardson Chief Iustice If a man sends his servant to a Draper to buy cloath for his Master and makes not the contract in his own name That the Master shall be charged and not the Servant Which was not denied 11 E. 4.6 Tomlinsons Case IF an Executor is sued in the Ecclesiastical Court for a Legacy and the Executor pleads plene administravit a Prohibition shall not be granted if they will not admit that plea. For they ought to judge there if he had administred fully or not But upon suggestion that they did not reject any administration which our law allows A prohibition shall not be granted as Richardson said which was not denied by the whole Court Williams against Floyd WIlliams was Plaintiff by an English Bill to the Council of Marches against Floyd in the nature of Debt upon an Escape and there was a Latin Declaration upon an Escape turned into English because that the Defendant being Sheriff of Canarvan suffered one against whom the Plaintiff had a Iudgement being taken by capias utlegat to escape To his damage of 40 l. And by the whole Court a prohibition was granted Although that by their Instructions they had power of personal actions under 50 l. For this is intended a meer personal action As debt detinue c. But Debt upon a Iudgement or debt upon an escape or upon the 2 E. 6. for not setting forth of tithes an action upon 8 H. 6. or any other action upon matter of Record or Statute In such cases they have not Iurisdiction And the Defendant there might have pleaded nul teil record and then he might have proceeded further But the misdemeanour here in permitting the party to escape might have been punished there by Information Gee against Egan GEe an Attorney of this Court brought an Action upon the Case against Egan and declares that he was an Attorney for many years late past and still is and that he had taken the Oath of an Attorney to do no fraud nor deceit in his Office as Attorney And that colloquio habito et moto inter one Rise Brother in Law to the Plaintiff and the Defendant concerning the Office of the Plaintiff as an Attorney and concerning a Bill of Costs and Expences by the Plaintiff in defence of a Cause prosecuted by one Treddiman in the Common Bench against the Defendant laid out and expended The Defendant 1 Augusti 4 Car. spoke those words to Rise Your Brother and Mr. Treddiman have cheated me of a great deal of mony c. by which the Plaintiff is in danger to lose his Office And it was moved after verdict for the Plaintiff in arrest of Iudgement by Ayliff Because that here is not any certainty in the Declaration that the words were spoken of the Plaintiff as Attorney And then they are not actionable For he does not shew at what time the speech was of him as Attorney Richardson upon reading of the Record said It was true that no time of the speech is shewen neither is it after the speech shewen upon whom he spoke those words Which might help it Neither is it said afterwards that is to say primo die but primo die Augusti he spoke c. And if it can be intended that those words were spoken of the Plaintiff as Attorney That would inforce the words to bear an Action But if such words are generally spoken of an Attourney without speech of his Office they are not actionable For he may be a Cheater at dice or in a bagain c. And here non constat that the words were spoken of the Plaintiff as Attourney Secondly it does not appear that the Plaintiff was was an Attorney in the Cause but says
by subtile and false means thou hast been the death of 100 men For before verdict against them and the words were that he was their death by false verdict As to the Bar. That is naught it appears by the Bar that the Defendant was not called to answer the Articles aforesaid For he said the Plaintiff would not proceed upon them Then the Plaintiff might be Iudge witness and party and not oppress me c. And it is not Iustice for one Iustice of Peace to refuse to proceed As here If Articles be given to him the Witnesses perhaps are not ready and although he request the Plaintiff to proceed it is not the Office of a Iustice of peace to promote a Cause For the words continue he justifies scribi fecit And that is no justification to contrive which is a word well known and apt to signifie the framing or inventing of Articles c. And the words are in the Declaration and did then oppress me And there is nothing answered to then or justified to it Pasc 24 Kings Bench Actions for words in London and the Defendant justifies the words in S. the Plaintiff demurred and had Iudgement M. 27 Eliz. Kings Bench. An Action for calling the Plaintiff Thief The Defendant pleads the Plaintiff guilty in 3 several Felonies And issue was taken de injuria sua propria absque aliqua tali causa And the Plaintiff was found guilty of two Felonies but not of the third And it was adjudged for the Plaintiff because he failed of his tali causa upon which he concludes c. Bramston at an other day on the contrary And said that the Declaration is not good First it must appear plainly that the Plaintiff was a Iustice of Peace at the time of the speaking of the words and implication will not serve I agree that necessary intendment shall be sufficient And if there might be other intendment it is not sufficient 13 Eliz. Dyer 304. Mich. 20 Jac. Kings Bench. Arundel Plaintiff Mead and Harvey Defendants in an Ejectione firmae brought upon a Lease made for 5 years if a Woman should so long live And after verdict for the Plaintiff It was moved that the Declaration is not good Because that it was not averred that the Woman was living at the time of the Ejectment But it was adjudged that the words virtute cujus he was possessed and termino nondam finito he was ejected supplies that Dyer 254. Debt upon a Lease for years rendring rent the Plaintiff declars upon the lease by him made to A. who devises it to the Defendant and he enters And it was objected that the Declaration was naught because that he does not shew the assent of the Executors and it is not said virtute Legationum c. But that he entred and that may be by any other Title and for that naught And in our Case that he was a Iustice of Peace many years before and at the time of the speaking And the words premisor non ignorant the Defendant intending to remove him c. does not aid it For it might be meant when he was not a Iustice of Peace It is not but by argument that he was then a Iustice of Peace Secondly The second Objection The second words are not laid to be spoken of Roberti Hitcham aforesaid It is to be observed that the words And he did then c. be distinguished in time For it is postea ad tunc et ibidem By which it ought to be meant spoken at another time of the same day and then all the subsequent words not actionable And it is not sufficient as it was objected that he was a Iustice of Peace when the Injuries were supposed to be done There are two reasons why a Iustice of Peace shall have his Action for words First That if the words be true they expose him to punishment or pain and either of them is sufficient cause to make the words actionable And when the words are such that they do not expose the party to punishment but only discredit him in his profession and make him subject to be removed they are not actionable unless spoken at the time that he is a Iustice of Peace And here the words are of such nature But words which expose him to punishment for a misdemeanour when he was a Iustice of Peace are actionable although spoken after he was removed Secondly If the Declaration was defective in substance for want of a precise shewing that he was a Iustice of Peace at the time Nothing in the Bar will help it But defect in circumstance may be so aided scil by the Bar as time or place failing in the Bar may be supplied by the Bar. 6 E. 4.16.6 E. 4.2.7 Rep. 24. Buts Case Mi. 37.38 Eliz. Badcop against Atkins Thy Father hath stollen six sheep It was moved in arrest of Iudgement Because it was not shewn in the Declaration that the words were spoken to the Son or in his presence of his Father the Plaintiff And as to that it ought to be intended For it is not sense to say thy Father to any but the Son Secondly the Defendant admitted it in his Bar. But resolved by the whole Court it is not necessarily implyed that they were spoken to the Son And then it was agréed by all that the Declaration was defective in substance and is not aided by any admittance in the Bar. Thirdly The third Exception here is there wants an Innuendo to make the Declaration good where the place is necessary to make the words actionable there ought to be an Innuendo for the place c. Barham did burn by Barn there no Innuendo will make the words actionable But if there be a Communication of the Plaintiffs Barn and that it was full of Corn there with an Innuendo horreum praedict will serve H. 37 Eliz. Banc. Roy rot 334. Thou art a Thief thou hast stollen half an acre of my Corn Innuendo half an acre of Corn severed Adjudged that the Innuendo does not serve So for Slander of title Entties fol. 36. A. was seised of the Mannor of S. and there was a Communication of that Mannor of S. And the Defendant said I have enough in my Study to make I. S. Heir to the Mannor of I. S. Innuendo manet praedict de S. It is sufficient Secondly The words are not actionable Witnesse Iudge and party is not a scandal without a violent construction of the words To say he did oppresse me That of a Iustice of Peace without more is hard to maintain an action for it does not appear that he was damnified And words of themselves which are actionable joyned with others are not sometimes actionable If one says of a Lawyer he did reveal the secrets of my Case that is not actionable for he might reveal it to a Iudge But if he said Goe not to such a one he did reveal the secrets of my case that is actionable Suegos case in the book
of Entries If one said of a Chirurgion he did poyson the wound of his patient That is not actionable for it might be for the cure of it But if he said as it was in 33 and 34 Eliz. Com. Banc. He did poyson the wound of his patient to get money That is actionable And the words here are allayed if they be joyned with the first For being spoken of a Iustice his power and greatness may oppresse him without fault in the Plaintiff One said M. 37 Eliz. of a Iustice of Peace That he was a Bloodsucker and thirsteth after blood yet if you 'll give him a couple of Capons he 'll take them Not actionable for they are too general As to the Iustification all is justified clearly It was objected then is omitted in our justification It is true if he complain of oppression one time and we justifie at another time it shall be insufficient But the matters of Iustification here well enough meet with the time By which c. Gosse against Brown Gosse brought an action upon an Obligation against Brown dated 23 Feb. 20 Iac. to pay money upon the 30 of December following It was then said that the money was not to be paid until the 30 day of December For it is all one as if the bond had been without date But if the condition had been to have béen paid the 33 Febr. It was then presently due upon demand because it was an impossible date Gibbs against Ienkins GIbbs brought an action upon the case for scandalous welch words spoken in the presence of divers understanding the language And witnesses were sworn to the Iury who deposed that the signification of those words were to steal or at least to carry away Which words in English not being able to bear an action Iudgement was given against the Plaintiff Ravyes Case A Sheriff had taken one by capias ad satisfac a Stranger assumes to him that if he will let him goe at large that he would pay him what damages he should sustain thereby No action upon the case will lie for that promise because it is against the Common Law And 23 H. 6. 2 H. 5. If a man oblige another in a bond not to follow his trade It is void Darlyes Case SErgeant Atthow shewed to the Court that an action upon the case was brought by the Sheriff of S. And declares that the Defendant assumed that if he would put such an one in Execution into the Castle of which he had recovered against him to save him harmless And shews that he did take him in execution and that for that he was indicted for a forceabie entry and sues in the Star-chamber ad damnum 500 l. And the Court séemed that it was not a sufficient consideration For it was no more than by his office he ought to doe But if it was upon an other matter otherwise it should be And for that they said to the Serjeant that he might have demurred to the Declaration NOte that it was said that an Ejectione firm does not lie de una pecia terrae although that it was added conteining by estimation half an acre of land vocat It is not good But he ought to shew the longitude and latitude And it is otherwise in an assize and that for the view And so it was held by the Court. Hadves against Levit. AN action upon the case was brought That in consideration the Plaintiff would consent that his Son should marry the Daughter of the Defendant and that after the Coverture upon request of the Defendant the Plaintiff shall make a joynture of 20 l. to the wife That the Defendant should give 200 l. to the Son in marriage they are married the mony is not payed the Father of the Son brings this action and shews how he is indamaged by it because that he is constreined to give more to the Son and his Wife for to allow them maintenance then otherwise with an averement that be is forced to make that Ioynture if the other will make the request Richardson This action should have béen more properly brought by the Son for he is the person in whom the interest is And he put the case 22 Eliz. A man had a license to transport Herrings to Spain and the Daughter one of the parties had a license And a stranger comes to the Father and says to him procure me that license and I 'll give you 100 l. and 100 l. to your daughter It was held that the Daughter should have the action for the one 100 l. for more specially it concerns her And put the case of lorning Iorning 37 Eliz. Where A. was indebted to B. a stranger follows the sute for B. A. comes to the stranger and says to him leave the sute and I 'll pay your Master The Master shall have the action upon the case And now in our case the father does not demand the 200 l. but only the damages which will happen to him by the non-payment to the Son Hutton There is a difference when the promise is to perform to one who is not interessed in the cause and when he hath interest In the first case he to whom the promise is made shall have the action and not he to whom the promise is to be performed If A. promise B. to pay I. S. 10 l. upon a consideration which is not done B. shall have the action and not I. S. If there be two joynt of a Horse and the one conditions with the other to goe to Market to sell it who does it and appoints the payment to be made to another In this case he only to whom the payment is to be made shall have the action So also if my servant by my command sell my Horse the money to be paid to me I shall have the action and not my Servant for the interest is in me So here the interest is in the Son and he is to have the money It was said at the bar betwéen one Cardinal and Lewis It was adjudged that where two fathers promise upon marriage betwéen the daughter of the one and the Son of the other that the Father of the Son will give 100 l. stock and the Father of the Daughter 100 l. in money The money was paid and the stock not delivered And the action was maintained by the Father And the Iustices said that they would see that Record viz. 27 H. 8. Tathams case of a promise made to the wife c. They put at the bar one Cores Case That a man promised to one to make satisfaction of all debts in which he was indebted to another who was then absent He to whom the satisfaction was to be made brought the action upon the Case and well maintainable ve Mich. 43 44 Eliz. in t Rixon Horton Stone against Tiddersly THe action was brought upon an Obligation the condition whereof was that a conveyance of a Mannor shall be made to one P. and two others to the use of Richard Tiddersly and the heirs males of his body The remainder to the heirs males of Rob. Tid Vpon issue whether conditions were performed And it was found by verdict that it was to the use of the heirs males of his body the remainder to Rob. Tid and the heirs males of his body Held no performance for they agréed not to the words of the Condition IT was agreed by all That antient Demesne was a good plea in Ejectione firm but not after imparlance Crosses Case THere was errour brought because the appearance was by Anthony Goodwin Attornat suum And there was not any such in rerum natura The Court said that this averment shall not be received against the Recorder of the Court. FINIS
for a Legacy and that upon the Statute of 23 H 8. cap. 9. And Henden said that a Prohibition might not be granted for two causes First The Statute is general That no person c. then there is a proviso That this Statute does not extend to any probate of Wills in the Prerogative Court Then a Legacy cannot be recovered in any other Court. For if a Will be proved there no inferiour Ordinary will meddle with that Will and alwaies they had the execution of all Wills proved there in that Court Secondly It is pretended that the party is cited out of a particular Iurisdiction But that is not a Iurisdiction within this Statute For no Iurisdiction is intended but where there is an Ordinary But in the Tower of London there is no Ordinary But it is but as a Lord of a Mannor who had probate of Wills which is but a lay Iurisdiction c. Thirdly There is no Ecclesiastical Iurisdiction there But Davenport replyed That although for the present time no Ecclesiastical Iurisdiction is executed there because the Lord is dead Yet Spiritual Iurisdiction is executed there Hutton said If there he cause de bonis notabilibus Then the Archbishop had the Prerogative and might cause the proving of the Will But it stood with reason That where an Executor is tyed to perform the Will which may be there sued and the property of sute ought to be there where there is cause of Prerogative Harvey If there be cause of Prerogative and proof of the Will in the Prerogative Court Yet in the inferiour Iurisdiction the party will be compelled to prove the Will also But by Crook and Hutton minus juste An Action of Battery AN Action of Battery is brought against two and one dies before tryall and it was entred upon the Roll But the Venire facias was awarded against both and dammages assest And by Yelverton it cannot be amended For it was not the Act of the Court but of the Iury So that now dammages cannot be severed For although he may have the entire dammages against which he will yet if they be severd you will then oust him of his Election Quod non fuit negatum A Prohibition IN a Motion for a Prohibition where the Ordinary would make distribution It was agréed Richardson being absent That if the Ordinary commits Administration to the Wife of the Intestate that he cannot revoke that But if he grant Administration to one as Prochein de Sank and another more near of Blood comes He may revoke And because the Administration being granted all the power of the Ordinary is determined and then he cannot make distribution And if the Administration be one time justly granted the Grantée had a just Interest which cannot be revoked And although it was urged that those Prohibitions were not granted untill of late time yet they say those things passed Sub silentio Yelverton They cannot grant Admistration before a division was made And by Crook and Harvey An Action upon the Case lyes against the Ordinary if he will not grant Administration where he ought And at an other day it was moved by Finch Recorder That such a Prohibition could not issue in one Davyes Case And Richardson said That because that that Case was a Case of Extremity For Davyes had not any thing or portion allotted him by his Father who was dead And his Mother who was Administratrix turned him out of her House without any maintenance stopped the Prohibition which was granted before And said that it was in the discretion of the Court to grant such a Prohibition or not But Harvey and Crook said secretly betwéen themselves that it was not in the discretion of the Court. Garton against Mellowes AN action of Battery was brought by Garton against Mellowes And the Plaintiff pleaded a Recovery by the same Plaintiff for the same Battery in the Kings Bench against another who joyned in the Battery And the Piaintiff replies Nul tiel Record Vpon which they were at issue and the Record was brought in at the day assigned And these variances were objected for to make it fail of a Record And first The award of the Dist jurat in the Kings Bench is Coram domino Rege and there it was Coram domino nuper rege But not allowed For the King died before the Plea there and then it ought to be so pleaded Secondly That in one Record the Plaintiff is Generosus in the other Armiger Brampston said That that was such a variance which could not be amended Dyer 173. One recovers in debt by the name of I. Cives and Sadler And the Defendant brought Error and removes the Record inter I. Civem Salter c. And it was rul'd that the Record was not well removed upon that Writ Dyer 178. Plo. 8. Vpon Nul tiel Record there was a variance in the day of the Return of the Exigent and in the place where the Outlary was pronounced And adjudged a variance which could not be mended And now here there cannot be an amendment because it is after tryall And by amendment there might be a cause of changeing the Plea For he took that Issue by reason of the variance and after verdict there cannot be an amendment Mich. 2 Jac. Kings Bench Tayler and Fosters Case In an Ejectione firm upon a Lease made 10 Iunii and upon not guilty pleaded it was found for the Plaintiff And in Error it was assigned for error that the Imparlance roll was 10 Iunii and Issue roll the 12 Iunii and it appeared there was a rasure And it was agréed that if it was after verdict it could not be amended Atthowe This variance is not substantiall And the cases put do not make to this case For Salter and Sadler are two severall Trades And it cannot be intended the same man for he may vary in his action as he pleases But the Court said nothing to that Exception Thirdly In the Record of Nisi prius there was another fault It was agréed that a Material variance cannot be amended Yelverton said That he might have new Execution For he pleaded a recovery and execution in Bar and that they came to take whereof he had failed For that it stood now as another battery For it does not appear by the Declaration of the Plaintiff c. Smith against Sacheverill AN Action of Wast is brought by Smith against Henry Sacheverill and declares Whereas Henry Sacheverill the Grandfather was seised of these Lands he levyed a Fine of them to the use of himself for life with power to make a Lease for three lives and after to Smith his son for his life the remainder to the first begotten son of Smith in tayle The Grandfather makes a Lease for three lives and dyes and Smith and his first begotten son bring this Action of Wast against the Lessee and they assigne their wast in killing red Deer in a Park and upon nul wast pleaded it was
only upon the Land in possession but also the rights to the same the one in point of Giving The other in point of renouncing The Land in possession could be but in one that is in the Offenders and so it was given but the rights to the same Lands might be in sundry persons in the Offendor or in his Heirs or in Strangers Now when the Statute saith the King shall have the Land without saving the Rights of the Offendors or his Heirs or any claiming to their use Tenant in tayl discontinues and after disseiseth his Discontinuee and is attainted of Treason he forfeits his Estate gained by the Disseisin and also his right of Entayl for he cannot take benefit of his ancient Right against the King by force of the Statute of 26 H. 8. and 32 of H. 8. and this agrees with the reason and the rule in the Marquess of Winchesters Case for if the Traytor have right to a Strangers land that shall not be given to the King for the quiet of the Stranger being Possessor for the quiet of his possesion but such right shall be given to the King being Possessor for the quiet of his possession and the word Hereditament in the Statute 26 H. 8. are both sufficient and fit to carry such right in such Cases and no man will dispute but they are sufficient to save naked rights to the Lands of strangers therfore it is not for the count of words but because it is alleged it was not meant so it was said in Digbies Case and so hath Antiquity expounded it for the good of the Subject against the King and against the letter of the Law But can any man imagine that the Parliament that gave the Land to the King should leave a right in the Traytor in the same Land to defeaf him again of it since the Statute gives the right and the Land and this gives a forfeiture of all rights belonging to the Person attainted of Treason and their Heirs for the benefit of the Kings forfeiture is of so great importance that if it be not taken as large as I take it it is an avoiding of all the Statute even that 33 H. 8. cap. 20. for though they have the word Rights in both Statutes even that of 33. doth not include the right of Action to the Lands of Estrangers by an Equity against the Letter So for this time the Case was abruptly broken off by reason the King had sent for all the Iudges of every Bench. Springall against Tuttersbury IN Springall and Tuttersburies Case It was agreed by the Court If a verdict be given at a nisi prius and the Plaintiff or Defendant die after the beginning of the Term yet Iudgement shall be entred for that relates to the first day of the term Overalls Case ONe Overall was sued in London and for that that he was of the Common Bench a Writ of Privilege issued which is a Supersedeas and staid the Sute wholly and not removed the Cause And if the Plaintiff had cause of Action he ought to sue here And then by the course of the Court a Clark shall not put in bayl Foxes Case THe Lord Keeper in the Star-chamber cited one and Butchers Case to be adjudged 38 Eliz. An Vnder-Sheriff makes his Deputy for all matters except Executions and restrained him from medling with them And it was adjudged a void Exception So if it be agreed and covenanted between them that the Deputy should not meddle with matters of such a value It is a void Covenant And that was agreed by Richardson to be good Law Hil. 5 Car. Com. Banc. Overalls Case IT was agreed at another day in Overalls case by all the Clarks and Prothonotaries of the Court that the Course always was that if an Atturney or Clark be sued here by bill of Privilege he needs not put in bail But if he be sued by original and taken by a Capias as he may be if the Plaintiff wil Then he ought to put in bail quod nota MEmorandum that on Sunday morning in the next term ensuing which was the 24. day of Ianuary Sir Henry Yelverton puisne Iudge of the Common Bench dyed who before had been Attourney general to King Iames and afterwards incurring the displeasure of the King was displaced and censured in the Star-chamber and then he became afterwards a practicer again at the bar from whence he was advanced by King Charls to be a Iudge He was a man of profound knowledge and eloquence and for his life of great integrity and piety and his death was universally bewailed Termino Hill 5 Car. Com. Banc. Honora Cason against the Executor of her Husband HOnora Cason sues Edward Cason Executor of her Husband and declares by bill original in nature of debt pro rationabili parte bonorum in the Court of Mayor and Aldermen of London and alleges the custom of London to be That when the Citizens and Fréemen of London die their goods and chattels above the debts and necessary funeral expences ought to be divided into three parts and that the wife of the testator ought to have the one part and the Executors the second part to discharge Legacies and dispose at their discretion And the children of the Testator male or female which were not sufficiently provided for in the life of the Father to have notwithstanding the Legacies in the will the third part And the custom is that the Plaintiff in this action ought to bring into the Court an inventory and sue before the Mayor and Aldermen And that she had here brought an Inventory which amounted to 18000 l. so that her third part was 6000 l and demanded it of the Executor who unjustly detained c. And it was removed to the Common bench by writ of Privilege And now Hitcham Serjeant moved for a procedendo And the Court séemed to be of the opinion to grant it Because that the custom is that the sute ought to be before the Mayor and Aldermen and then if they retain the action here the custom would be overthrown But they agreed that a rationabile parte bonorum may be remanded here and that they may proceed upon it in this Court And that there be divers presidents to this purpose And they agreed that a rationabile parte bonorum is the original writ by the Common Law and not grounded upon the Statute of Magna Charta But that it does not lie but where such a custom is which custom they ought to extend to all the Province of York beyond Trent Richardson chief Iustice said that in the principal case The Plaintiff in London might have declared without alleging the custom As it is in 2 H. 4. Because that the custom is well known But otherwise Where custom ought to be shewed and where not where an action is upon the custom in a place where the custom does not extend There it ought to be shewn And afterwards at another
day a procedendo in this case was granted Sir William Cave against Sir William Fleetwood IN debt the Plaintiff had judgement Hill 5 Car. Com. Banc. and a cap. ad satisfac was awarded against the Defendant upon which he was outlawed And Crawley moved that the Plaintiff might have an Elegit and cited 21 H. 7. 19. There are but four manners of Execution Two by the Common law levari and fieri fac And two by the Statute elegit and capias and none of them is a barre to the other unlesse there be satisfaction of it A fieri fac is no barre to the cap. although part of the Debt be satisfied 22 Ass 47. E. 3. Exec. 41. If the party pray execution of the body and had it then he shall not have resort to a new Execution For if the Defendant die in prison it is adjudged in Bloomfields case that the Plaintiff shall have an Elegit which proves that it is the satisfaction the Law looks upon and respects A fieri fac is no barre to the capias although part of the debt be levied by fieri fac and a capias may issue after Secondly the processe is determined by the Outlawry although it be after Iudgement And for that the Plaintiff resorts to his satisfactory execution again 17 E. 4. 4. Execution by Statute does not oust execution by the Common law no more than the execution by one Statute ousts the execution by another Hutton Iustice If upon an Elegit brought it be executed he can never have an execution And if a man be taken upon a capias the party now may have another execution but the outlawry here determines the process and then the Plaintiff by scire fac revives the Iudgement again and he may resort to which process he will If a man had a Iudgement and taken a capias and done nothing upon it but died the Executor is not bound by that But after a scire facias he may have an Elegit or what other execution he will Hudson and Lees case Common Bench The Plaintiff took an Elegit but because he could not upon the Inquisition find sufficient to satisfie he resorted to a capias And it was agréed that he might for that that the Elegit was not awarded upon Record But if an Elegit be awarded by the Roll and so shall be recorded the Plaintiff ought to proceed upon that But the course is not to award it upon the Roll and he said that Bloomfields case is not Law For if the party die in execution by Elegit by capias the Plaintiff had his execution and might not have any execution again And so it was adjudged in Iacksons Case in this Coutt And the making of the Statute of 21 â—…ac shews that so the Law was taken Wollaston Dixye against the Bailiffs and Burgesses of Derby IN a quare impedit the Plaintiff declares that Iustice Beamont was seised in Fée of the Advowson of St. Peters in Derby and presented his Clerk to it who was instituted and inducted c. and dies and that the Advowson descended to H. Beamont his son and heir and he died and the Advowson descended to Barbara his daughter and heir and that she being seised in fée and under the age of 21 years the Church became void and Barbara her Mother who had not any right of presenting presents her Clerk who was instituted and inducted and admitted to it And Barbara the Daughter took the Plaintiff to Husband and became of full age and then the Church became void And because the Bayliffs and Burgesses presented and the Church so full within the six months the husband alone brought that action upon which there was a demurrer Davenport said the action did not lie for the husband alone but the wife ought to joyn with him For that usurpation upon the Infant which he had by descent by the Statute of West the 2d does not turn the Infant to his writ of right Yet the Vsurper gets the inheritance and turns his estate to a right And for that he cited Cook 6. 50. Boswells case and 16. E. 3. there cited Where one seised of a Mannor with an advowson appendant dies his heir within age who suffers an usurpation and then grants the Mannor Resolved that the advowson does not passe because that the heir had but a right in the advowson after the usurpation So in our case the wife had but a title of action and than the wife ought to join As where an obligation is made to a woman who takes a husband the wife ought to joyn with the husband in the action upon the obligation But Henden said that the Husband only might have an action If a feme covert be seised of an advowson in fee and the Church void the Husband only may have an action without question Which was granted by the Court. Then here the wife being of full age before the avoidance now the feme being in possession of the Advowson again to all intents and purposes And for that by the exposition of the Statute of Westminster the force of the usurpation being upon the Infant who had it by descent continued but during the incumbency and non-age of the Infant And it was said by Richardson That the Infant at full age might present and so regain the possession without action at the Common Law by usurpation she was turned to her writ of Right And if it was a purchase he was without remedy Now I demand in this case If there be a death during the avoidance whether the Executor shall have it or the Husband upon tenant by Courtesie And he cited the Lord Stanhops Case which was That the Abbot of the Monastery of Shelford was seised of the advowson in gross and there was an usurpation in the time of the Abbot And then came the Statute of dissolutions which gave a right and title to the King So that that which was in the Abbot was now in the King Afterwards the King grants that Advowson by a general grant without recital of the case And adjudged a good grant But by Hutton Warberton and Winch Iustices were of the contrary opinion to Hubbard But that was because that there are words in the Statute that the Subject shall have all the King had which was to induce purchasers Hutton If it might appear that the Plaintiff scil the Husband presented before the Vsurpation and was disturbed that perhaps would have been a claim and so a remitter For at the Common Law the remedy for an Infant was to present and upon admission and Institution c. of his Clerk he should be remitted or might have a Writ of right if he pleased But by the Court the husband only in this case might have presented And then upon disturbance he only shall have the action But here the Church was full before the presentation Henden said the intention of the Statute was to give to the Infant at full age