profits have accrued to them or any of them by the making of Allome since the making of the said Indenture wherupon the Plaintiff demur 1. And Iudgment was given for the Plaintiff for it is one good Grant of an Annuity to charge their persons And so of a Grant of an Annuity to be paid out of such Coffers or Bags vide 9 H. 6. Margery Parkers case vide 22 H. 6. 12. 2. Also the limitation is to perceive of the clear gaines and plead it by the Counter-part of the Indenture and that ought not to be but they should have demanded Oyer of the Deed and then either demur or plead that the same Deed was granted over c. 3. It is not averred that no other person received or made any clear gain but only that the Defendant made no clear gain Burglary MEmorand At the Assises holden at Winchester in the last Circuite before the Lord chief Baron Tanfield it being the third Circuite which I went with him It was a question whether one which had a Shop in the dwelling house of another and he which had the Shop work'd therin in the day but never lodged there and yet he had a house out of the Shop to the Street if this Shop be broken in the night and divers Goods stoln out therof if it be Burglary Burglary And the Lord chief Baron and I resolved that it was no Burglary because that by the severance therof by Lease to him which had it as a Shop and his not inhabiting therin it was not any Mansion house or dwelling house ergo no Burglary but ordinary Felony Mich. 15 Jac. Adavis versus Flemming Case AN action of the Case was brought for these words Thou hast forsworn thy self before the Councell in the Marches innuendo in the Marches of Wales in a Suit which I have there and I will sue thee for Perjury Words And after issue of Not guilty pleaded and Verdict for the Plaintiff It was moved in Arrest of Iudgment by Chibborn that the Common Law takes no notice of any such Councels and they are to meddle according to instructions and if it be not warranted therby then no Oath wherupon any remedy And therfore it was adjudged that if one say another is forsworn or perjured in Canterbury Court no action lies for we cannot take any notice of any Court in Canterbury which hath power to administer an Oath But Serjeant Harris said that this Councell of the Marches is established by 27 H 8 cap 32. and have power to examine Witnesses and to administer an Oath and is also mentioned in the Statute 5 Eliz. that Perjury committed before the Councellors of the Marches shall be punished by this Statute And the Court was of opinion that the action well lies for the Councell of Marches without innuendo is sufficient for there is no other Councell of Marches And as the Court take notice of the Court of requests for if one saies another is perjured there it is actionable so of this Court which is established by Statute and concern the King and therof the Iudges ought to take notice Iudgment for the Plaintiff And by Lord Hobart if one saies another is forsworn in the Common place an action lies Mich. 17 Jac. Bayshaw versus Walker Case AN action of the case was brought for saying Thou art a filtching Fellow and didst filtch four pounds from me And after Verdict for the Plaintiff it was moved in Arrest of Iudgment that the words were not actionable And so the Court resolved for the word siltching is dubious and may be by Cousenage by shifting by deceit and is not Felony but by Implication and it is not good to enlarge actions for words Plaintiff Nil capiat per breve Green versus Harrington Case Assumpsit lies not for Rent PEter Green brought an action upon the case against Thomas Harrington and counts that wheras the Defendant such a day was indebted to him in ten pounds for the rent of one House and land which he had demised to him for one year then past the Defendant promised to pay it upon request and upon issue Non Assumpsit it was found for the Plaintiff and moved in Arrest of Iudgment by Chibborn that no action lies upon this promise because it is Debt for the rent for Land and the Assumpsit is of a lesse nature as if one he indebted upon an Obligation and that being forfeited he promised to pay it no action lies for the Debt is due upon the Obligation Albanies case And the opinion of the Court accorded This was ruled in Albanies case of Lincolnâ— Inne in Banco Regis Trin. 17 Jac. Rot. 1849. Castilion versus Smith AN action of Covenant was brought by Sir Edward Castilion against Thomas Smith as Executor Covenant Iudment against Executors for Covenant broken by them shall be De bonis testatoris Iohnson and Barker a breach assigned by act done by the Executors and after Verdict it was moved if Iudgment should be De bonis propriis by reason the breach was made by the Executors And it was resolved that it should be de bonis testatoris And where the Writ is in the Detinet only there the Iudgment shall be de bonis testatoris vide the like Iudgment Hil. 33 Eliz. Rot 1143. between Johnson and Barker Pies Case PIe exhibited an Information upon the Statute of the 35 of Eliz. for converting of a house in London into many dwelling houses and upon Not guilty pleaded the Defendant is found guilty But be cause the said Statute is discontinued by the 43 Eliz Costs against an Informer and there is now no such Statute the Court upon motion in Arrest of Iudgment award that the Defendant eat inde sine die And whether the Defendant in this case shall have costs upon the Statute of 18 Eliz. cap. 5. was the question The words of the Statute are if any Informer willingly delay his Suit or discontinue or be non-suited or shall have the matter or the tryall passe against him by Verdict or Iudgment in Law he shal pay costs 1. Object It was objected that this Statute doth not extend but only to penall Statutes which then were in Esse Answ To which it was answered by the Court that this Statute was a perpetuall direction to all Informers 2. Object It was objected that if there be no Statute then there is no Informer 3. Object In this case Verdict is sound for the Informer and he may be presumed to be ignorant And there is no reason that he shall pay costs for default of his Councell 4. Object There is no Iudgment against him but that the Defendant eat inde sine die and that is no other then an exception in stay of Iudgment Keldridges case And a President was cited by Henden 25 Eliz. Banco Regis there upon an Information against Keldridge and another upon the Statute of 35 H. 8. for not
to passe without pain then to indite the Offenders of whom great part be flock of the same Country c. And upon Nil debet pleaded it was found for the Plaintiff And it was moved by Serjeant Bawtry that the Writ had recited the Statute otherwise then it was for the Writ saies Indicari pro indictari and it ought to be written by this Abbreviation Indicāuri And the word Indictari is a word by it self and he resembled it to Freemans case Coke lib 5. fol 45. Fecit vastum vendicōnem destrictionem for destructionem and not amendable Also Coke lib 4. S. Cromwells case upon the Statute of Rich 2. de scandalis magnatum the word Messoignes is said Messuages and not amendable Harris answered that the Cursitor had a Note drawn which was well and it was only his mis-priston Secondly that there is no such Passive Verb as Indicari and so being insensible shall be amended And for that vouched 11 H 6. 2. 14. adjudged upon the Statute of forging of false Deeds Immaginavit were it should be Immaginatus est and amended 3. This Abbreviation is sufficient Also he said that it is only the preamble of the Statute wherupon the action is not founded but upon the body of the Act. Sir George Wrothies case in Ejectment the word Demisit was amended and made Divisit Brickhead against the Bishop of Yorke and Cooke for the Ticaridge of Leeds the Writ was Vacariam and for that the Cursitor was examined and his Instruction being Vicariam it was amended there An 14 Jac. 1. The Lord Hobart inclined strongly that it should be amended by the instruction which was delivered to the Cursitor but as to that Winch and I differed because that this matter of Instruction is not a thing which ought to be informed by the party as all matters of fact are As whether it be a Vicaridge or a Church or in debt for twenty pounds in the Instruction and he make it thirty pounds that shall be amended But in this case it is matter of skill and no difference between this case and Freemans case And in debt if he had Instruction in the Debet and Detinet and makes the Writ in the Detinet only that shall not be amended 2. The Lord Hobart inclined that this recitall is but in the Preamble and may be omitted to which we disagreed he inclined that the Abbreviation was sufficient to supply all the word This Case being long debated the Court Ex assensu ordered that the Defendants should give 80 l. to the Plaintiff Mich. 10 Jac. Rot. 641. Poole versus Reynold IOhn Poole brought a Prohibition against Richard Reynold Farmer of the Moyety of the Rectory of Colleton Prohibition Prescription to have Deer out of a Park in discharge of all Tithes and after the Park is disparked with the Chappell of Shute annexed to the said Rectory And the Surmise was that of time wherof memory within the Parish of Colleton there was a Rectory appropriate and the Cappell of Shute annexed therto Et una Vicaria perpetua ejusdem Ecclesiae de Colleton dotat And wheras the said John Poole for six years last past had occupied one house a hundred acres of Land twenty acres of Meadow forty acres of Pasture called Shute Park in Shute aforesaid within the Parish of Colleton which said Tenements were anciently a Park and now dis-parked which Park De temps d'out memory c. untill the dis-parking therof was used and filled with Deer and severed from other Land and was dis-parked An. 10 Eliz. and converted into the said house a hundred acres c. And that all the Occupyers of the said Park called Shute Park de temps d'out memory c. untill the dis-parking had paid to the Vicar there his Farmer or Deputy one Buck of the Summer season within that time upon request and one Doe of the Winter season within that time c. in discharge of all Tithes of the said Park untill the dis-parking and after the dis-parking in discharge of all Tithes of the said Tenements which they had accepted for all the time aforesaid untill the dis-parking and after or otherwise agreed with the Vicar for them And traversed this Prescription and found for the Plaintiff And now in Arrest of Iudgment it was moved by Henden that this Prescription extends to the Land quatenus it is a Park and that being destroyed the Prescription is gone for a Tenurs to cover a Wall or Thatch an house if the party destroy or pull it down the Tenure is extinct 32 E 14 Avowry And it shall be presumed that this was by grant when it was a Park which is collected by the thing which is to be paid and if it be to be paid or delivered out of the Park then it is determined vide Lutirels case Coke lib 4 Also this Prescription is against the benefit of the Church and shall not be enlarged And the Wood which is sold out of the Park shall not be discharged 14 Jac. in Conyers case in this Court Conyers case Prescription that the person had two acres of Meadow given in discharge of all Tithes of Hay ground viz. of all the Meadow in the Parish it any arrable Land be converted into Meadow it extends not to discharge that vide Lutirels case Coke lib 4 fol 86. That an Alteration in prejudice of the party determine the Prescription but vide the principall case there adjudged that building of new Mills in the same place and converting of Fulling Mills into Corn Mills alter not the Prescription vide Terringhams case lib 4. He which hath Common purchased part of the Land all is extinct for it is his own act And he cited a case which was in this Court argued at Bar and afterwards at Bench between Cooper and Andrewes Mich 10 Jac Rot 1023. for the Park of Cowhurst vide 32 E 1 Fitz avowry 240.5 E 2. Fitz annuity 44.20 E 4.14.14 E 4.4 But this case was adjudged for the Plaintiff Quod stet prohibitio and that which is by the name of Park is for the Land and is annexed to the Land by the name of Park if the Prescription had been to pay a Buck or a Doe out of the Park then it would alter the case But it is generall and had been paid also after the Park dis-parked viz. the tenth of Eliz. And the case of Cowper and Andrewes was the third shoulder of every Deer which is killled in the Park and two shillings in money and that case was never adjudged Hil. 10 Jac. Meredith versus Bonill Case HUgh Meredith a Iustice of Peace in the County of Monmouth brought an action upon the case against Bonill Words for these words I will have him hanged for robbing on the high way and for taking from a man five pounds and an Horse After Verdict for the Plaintiff it was moved in Arrest of Iudgment that the words were not actionable for they
brought an action of debt against the now Plaintiff upon an Obligation of a hundred and twenty pounds to which the now Plaintiff appeared by his Attorney and required a Declaration and the now Defendant on the part of the said William Carter his Master gave the said Declaration and required the now Plaintiff to confesse the action and pendente Pl. he the now Defendant in consideration that the Plaintiff would give order to his Attorney to confesse the action and to suffer the said Defendant to have Iudgment in the said Plea for the said William Carter his Master assumed to the Plaintiff that no Iudgment should be entred untill after Crast Annunciat And that no execution shall be sued out untill after the end of Michaelmas Term next and shew the performance therof by him and the breach of the Defendant And after Verdict it was moved that it is no sufficient consideration and that was impossible for him to perform that Iudgment should not be entred in the Term in which Iudgment is given but that is in the discretion of the Court and afterwards Iudgment was given for the Plaintiff Pach. 19 Jac. Rot. 3014. 21 Jac. Jennings versus Pitman RIchard Jennings brought an action of Covenant against George Pitman upon an Indenture of an Apprentiship Covenant of an Apprentiship by which the Defendant had put himself to be an Apprentice to the Plaintiff in Ipswich to the Trade of a Linnen Draper and there were divers clauses in the Indenture according to the usuall form and assigne for breach the wasting of severall summe of money The Defendant pleaded the Statute of 5 Eliz. by which it is enacted That it is not lawfull for any one inhabiting in any City or Towne Corporate using the Trade of a Merchant over the Sea Mercer Pannary Goldsmith Iron-monger Imbroyderer or Clothier to take any Apprentice to be instructed in any of these Trades if it be not his Son or that the Father or Mother of such Apprentice had at the time of the taking of him Lands Tenements or Hereditaments of Inheritance or Freehold of forty shillings per annum to be certified by three Iustices of Peace under their hands and Seals where the Land lies to the Mayor Bayliffs or other head Officer of the City or Town Corporate and to be inrolled entred and recorded there and pleaded the clause of the Statute which makes Obligations and Covenants void which are taken against it And averred that Ipswich was a Town Corporate at the time of the making of the Statute The Plaintiff replyed that his Father had at that time when he was bound Lands and Tenements in great Bealing viz. ten acres to the Value of forty shillings per annum The Defendant by Rejoynder offer to joyn Issue that his Father had not Lands c. wherupon the Plaintiff demurred And the question was If this part of the Statute To be certified by the Justices c. be such an essentiall part therof that the Covenant be void without it It was agreed that it had not been put in use after the Statute but it seems that it is Essentiall and it ought to be so at the time when he is put to be an Apprentice but it may be enrolled afterwards for the Statute in another part provides a penalty for the not Inrolling Like to the Case upon the Statute of 18 Eliz. That they which claim any Estate of them which were Attainted in the Rebellion they brought their Conveyances to the Exchequer to be inrolled within one year if they bring and deliver these Conveyances though they be not inrolled yet they have performed as much as was in them And if the Certificate be not at the time when the party is put to be an Apprentice the Statute was to no purpose If this Bar be good then the Replication is a departure and the Rejoynder also and the Bar being good Iudgment shall be given against the Plaintiff but if the Bar be not good then for the Plaintiff for the Count contains matter certain But the Court moved whether this Covenant lay against an Insant for although it is by the Statute provided that he shall be bound to serve as a man of full age yet that makes not the Covenants good and it is like to a Custom which shall be taken strictly Trin 20 Jac. This Case between Jennings and Pitman was moved this Term And the Lord Hobart was of opinion that this Statute being that it appears that he was within age scil sixteen years will not bind him to any Covenants which are not implyed in the Indenture of serving For the doubt was whether an Infant was an Apprentice out of London though that he put himself to serve And the only matter which binds him in this Statute is that he shall be bound to serve when he is bound by Indenture being within age as well as if he were of full age and if the Covenant be only a Covenant to serve no Covenant lies for Imbeziling of Goods And if the Covenant be to serve him faithfully and diligently that shall not bind him upon this Covenant And I was of the same opinion for it is only made good as to the serving and there are many Covenants and Clauses besides in this Indenture which bind him not As not to play at unlawfull Games c. And a Custom that an Infant at such an age may sell his Land shall be taken strictly viz. that he cannot give it c. But my Brother Winch was of opinion that it was a thing incident and a quasi Consequent viz. That if he shall be bound to serve by consequence he shall be bound to serve faithfully and truly He resembled it to the case of a Fine levied by an Infant and not reversed during his â—onage that shall bind him and by consequence the Indenture which leads the uses of the Fine and when the Law enables to any thing that which is incident and without which the other thing cannot be is implyed Trin. 19 Jac. Rot. 1734. Blemmer Hasset versus Humberstone Norf. JN an Ejectione firmae brought by Ralph Blemmerhasset against William Humberstone for Land in Pucklethorp Ejectione firmae upon a Lease made by John B. upon a speciall Verdict found it was resoved A Copyhold may be extinguisht without an actuall surrender that when a Copyholder bargain and sell his Copyhold to the Lord of a Mannor which hath the Mannor in Lease for years that therby the Copyhold Estate is extinguished And the Lord Hobart said that if a Copyholder come into Court and saies that he is weary of his Copyhold and request the Lord to take it that is a Surrender for between the Lord and the Tenant a Conveyance shall not need to be according to the Custome for the Copyholder hath no other use of the Custome but only to convey the Land to another vide Coke lib. 4. That a Release by him which hath Right to a
reasons the Court gave Iudgment for the Plaintiff And Serjeant Ward argued well and vouched divers good Cases The Writ of Detinue supposeth properly in the thing demanded vide 50 E. 3. 6. Cook versus Cook WIlliam Cooke alias Barker brought an Action of Wast against George Cook alias Barker and count against him as Tenant for life How a Writ of Wast shall be where there is a lease for life remainder in fee. of the Lease of George Cook and intitle himself to the Reversion Ex assignatione of the said George and shews that George Cook being seised in Fee and the Ter-tenant in Socage devised the Land to the Defendant for life the remaineer in tail to the Plaintiff And upon the Count the Defendant demurred And the Question was how the Writ should be where a Lease is made for life the remainder in Fee for it cannot be Quod de ipso tenet And it seems that the Writ shall be speciall upon the Case as a Fine levied to one for life the remainder in Fee the Writ shall be speciall upon the Case And it seems that it shall never be Ex assignatione but where the Reversion is granted over vide 38 E 3. fol. 23. the direct Case and vide 38 H. 6. fol. 30. in the Writ of Consimili casu vide F N B fol 207. in the Writ of Consimili casu qui illud tenet ad vitam D. ex Assignatione praedicti B. quam I. filius heres R. qui quidem R. illud praefat D. demisit ad eundem terminum inde fecit praefat B. c. The Estate for life with a Remainder over is but one Estate and it was a question at Common Law if he in remainder shall have an action of Wast vide 41 E 3. 16. 42 E 3. 19. 50 E. 3. 3. Reg. 75. But at this day the Law is cleer that he in remainder shall have an action of Wast F N B fol 207. but these Books prove that the Writ of Wast ought to be Ex divisione non ex assignatione Mich. 6 Caroli Case Words AN action of the case was brought for these words Thou art a Theef and hast stoln one Passions Lamb and marked it and denied it And upon Not guilty pleaded and Verdict for the Plaintiff Serjeant Ashley moved in Arrest of Iudgment because that it is not shewn whose Lamb for Passions is no word of any signification without the name of Baptisme And the Court was of opinion that the Count was good for it had been sufficient to call him Theef and then the subsequent matter and words aggravate and contain matter of Felony And it is a generall Rule that when the first words are actionable the latter words which toll the force therof ought to be such as do not contain Felony Babbington versus Wood. BAbbington brought an action of debt against Wood upon an Obligation of 600 l. the Condition was That if Wood resign a Benefice upon request that then the Obligation should be void A Condâ—tion to resign a Benefice upon request And the Condition was entred the Defendant demurred and Iudgment in Banco Regis pro querente And upon Error brought Iudgment was affirmed in the Exchequer Chamber for this Obligation is not voidable by the Statute of 14 Eliz. which makes Obligations of the same force as Leases made by Parsons of their Gleaves viz. Per non residency And it doth not appear by the Plea of the Defendant that it was not an Obligation bona fide which might be lawfull As if a Patron which hath a Son which is not yet fit to be presented for default of age and he present another with an agreement that when his Son comes to the age of 24. years be shall resign it it is a good Obligation And this Case viz. an Obligation with Condition to resign had been adjudged good in the case of one Jones An 8 Jac. And the Councel said that he who is presented to a Church is married therto Jones Case and it is like as if a man who hath married a Wife should be bound to be divorced from her or not co-habit with her these Conditions are void But these resemble not our Case Wilson versus Briggs WIlson brought an action of Account against Briggs as Bayly of his Mannor in the County of Cambr. Tryall of an action of Account upon receit in two Counties and also as Bayly to another Mannor in the County of Suff. And this action was brought in the County of Cambr. and found for the plaintiff and Iudgment to account and found in the arrearages and Iudgment given And now the Defendant brought a Writ of Error Iudgment was reversed because it was mis-tryed for it should be tryed at the Bar by severall Ven. fac to be directed to the severall Sheriffs First it is agreed that a writ of Account against one as Bayliff of his Mannor cannot be brought in another County but only in that County where the land lies vi 8 E. 3. fol 46. Fitz. Acc. 93. see there that two actions of Account brought against one for receit in two Counties And there it is said that it being upon a day that he may have one writ and count in the two Counties But to that it is said that that proves not but that he might have two Writs wherby it might be awarded that he should answer But in this case it was resolved that it was a mis-tryall for it ought to be by two Ven. fac and tryed at Bar and it is not aided by the Statute of 21 Jac cap 13. Trin. 8 Car. Purnell versus Bridge Hil. 6 Car. Rot. 1235. Fine to two and the heirs of one to the use of them two in fee. HEnry Pernell brought Replevin against William Bridge Robert Bridge and two others William Bridge plead Non cepit and the other made Conusance and upon Demurrer the case was such Richard Braken was seised in Fee of sixty acres of arrable Land and forty eight acres of Meadow and Pasture wherof the place in which c. was parcell And he the sixth of Febr. An 18 Eliz. by Deed granted an Annuity or Rentcharge of thirteen pounds six shillings out therof to Edward Steward in Fee payable at the Feast of Saint Peter or within eight and twenty daies after And if it be arrear for eight and twenty daies after the said Feast that then he forfeit for every Fine after forty shillings with a clause of Distresse as well for the said Rent as for the said forty shillings if it shall be arrear Edward Steward seised of the Rent died wherby it descended to Ioan Iermy Wife of Thomas Iermy Daughter and Heir of the said Edward Steward and they being seised therof in the right of the said Ioan An. 41 Eliz. in Crastino animarum levied a Fine of the said Rent to Robert Brook and Isaac Iermy and to the Heirs of Robert which Fine was to the
use of the said Robert and Isaac and their Heirs for ever by force therof and of the Statute 27 H 8. they were seised of the said Rent in Fee and after the said Robert died and Isaac survived and is yet seised Per jus Accrescendi and for Rent arrear c. and for the said forfeiture of forty shillings they avow wherupon the Plaintiff demur And upon Conference between the Iudges they all agreed that by this Fine which granted to Brook and Jermy and the Heirs of Brook to the use of Brook and Jermy and their Heirs that they were in by the Statute of 27 H 8. and were Ioyn-tenants of the Rent for otherwise there would be such a Fraction of the Estato that Brook should be in by the Common Law and Jermy by the Statute and that is not according to the Statute And it appears that the use was limited by the Fine it self and not by any Indenture And the principall reason is upon the Statute of 27 H 8. which is where two or three are seised to the use of one or two of them Cestui que uâ—e shall be adjudged to have such Estate in possession as they have in use Iudgment pro Defendent Memorand That in this Term a motion was made for the filing of a Writ of Entry in a Common Recovery suffered by Sir John Smith upon a Purchase and all was well done and the Writ made and sealed Filing of a Writ of Entry many Termes after but by the negligence of the Attorney it was not filed and it was Unanimo assensu resolved that it should be filed and that after the death of Sir John Smith for it is but to perfect a Common Recovery which is a Common Conveyance And this was denied in the case of one Allonson for there Error was brought and Diminution alledged and a Certificate that there was no Writ by the Custos brevium And it is ordinary to file these Writs at any time within a year without motion Mich. 8 Car. Harbert versus Angell CHarles Harbert Plaintiff against Angell Case Words in an action upon the case of words which were Thou art a Theef and hast cousened my Cosin Baldwin of his Land And after Verdict for the Plaintiff it was moved in Arrest of Iudgment that the words would not maintain action And at the first Iustice Crawley and Iustice Vernon were of opinion that the former part of the words were actionable and that they were not extenuated by the subsequent words but they agreed if it had been for thou hast robbed c. it would be otherwise And the Lord Heath and Iustice Hutton were of a contrary opinion and that the words And and For are in this case to have one effect and declare what Theef he intended And they relyed on Birtridges case Coke lib 4. And upon this diversity of opinion the Lord Heath conferred with the Iustices of Serjeants Inn in Fleetstreet and we with the Lord Richardson and they all agreed that the subsequent words explained his intent and meaning viz. the Robbery and cousening of the Land And Verba sunt accipienda in mitiori sensu As to say Thou hast stoln my Corn it shall be intended Com growing so in Arrowes case Arrowes case 19 Jac. Thou art a Theef and hast stoln ten Cart-loads of my Furzes adjudged not actionable for it shall be intended of Furzes growing Quaerens nil capiat per breve Ram versus Lamley Norff. RAm brought an action upon the case against Lamley and declared That wheras he was Bonus legalis homo and free a suspitione feloniae the Defendant maliciously want to the Major of Linn and requested a Warrant of him being a Iustice of Peace against the Plaintiff for stealing his Ropes The Major said to him Be advised and look what you do the Defendant said to the Major Sir Words I will charge him with flat Felony for stealing my Ropes from my Shop Quorum quidem verborum c. And after Not guilty pleaded and Verdict for the Plaintiff Hitcham moved in Arrest of Iudgment And the Court unanimously resolved that these words being spoken to the Iustice of Peace when he came for his Warrant which was lawfull would not maintain an action for if they should no other would come to a Iustice to make complaint and to inform him of any Felony Quaerens nil capiat per breve Mich. 8 Car. Lamb versus West Trin. 8 Car. Rot. 333. SIr John Lamb Knight brought Replevin against Thomas West and count Replevin that the Defendant took his Beasts at Blisworth in quodam loco vocat Thorny Close The Defendant avowed as Bayliff to Sir William Sheapherd and derived Title by a Lease to Michael West for ninety years if he and Thomas West the Defendant Demand of Rent and one Hutton West should so long live And the said Michael 19. Aprilis An 20 Jac. granted a Rent-charge of ten pounds per annum to the said William Shepheard and his Executors out of the place in which c. for the residue of his Tearm to be paid at the house of Thomas West in S. And the said Mich. granted that if the Rent he arrear by eight and twenty daies being lawfully demanded at the said house he should forfeit twenty shillings for every day that it should he arrear and if it be arrear by six months being lawfully demanded at the said house then he might distrain for that and the Nomine poenae And for Rent arrear by a year after demand due c. he makes Conuzance And therupon the Plaintiff demurred generalls And after many Arguments at Bar the Iustices delivered shortly their opinions severally and all argued that it is a Rent-charge and then a Distresse is incident to a Rent-charge which is in its creation a Rent-charge as well as if one makes a Lease for life or years rendring Rent and if it be lawfully demanded then it shall be lawfull to distrain for it None will deny but that he may distrain for this Rent without any demand And the diversity is between a Penalty and a Rent for if the Avowry had been for any part of the Nomine poenae then without actuall demand at the day he could not have distrained therfore vide Maunds case Coke lib 7. fol 28. And all agreed that when a Distresse is for Homage if it be once tendred and refused he cannot distrain without demand vide Litt 34. 21 E 4. 6. 16 17. 7. E 4. 4. That where a Rent is reserved upon a Lease and an Obligation to pay it yet that alters not the nature of the Rent 22 H 6. a good case Rent is reserved upon a Lease and an Obligation to perform Covenants that extends not to the Rent reserved but if it be to pay the Rent then it shall be demanded there it is said that if Rent be tendred and refused the Lord or Lessor may distrain without demand It was agreed that
to proceed vide 10 E 4. 6. 1 H 4. 1. vide Coke Lit fol 261. b. Or otherwise to prefer a Bill in the Parliament which ought to be passed by both houses and then it is Attainder by Parliament and so it was done 5 R 2. 54. But in this Case it being that part of the Treason objected against him was supposed to be done Oust le mere and made Treason by the Act of 3 Jac cap 4. that cannot be tryed but by Indictment to be taken before the Iustices of Assise and Gaol-delivery where the party was taken or before the Iustices of the Kings Bench and Law Custome Statute or usage to the contrary notwithstanding And so it cannot be tryed by the Statute of 35 H 8. cap 2. in what place or Shire that the Kings Bench shall be for this Statute had for this Treason prescribed a speciall form of Tryall and the place where he shall be taken shall be expounded the place where he is misprisoned as upon the Statute of Soldiers And he which is charged to have two Wives living shall be tryed in the place where he is taken which is the place where he is imprisoned vide 2. Inst 49. Trin. 12 Car. Quaeries concerning Aliens QUaeries upon the Statutes of 1 Riz cap 9. 1 H 7. cap 2. 14 H 8 cap 2. the Decrees in the Star-chamber made 20 H 8. and confirmed 21 H 8. cap 16. 22 H 8. cap 8. 32 H 8. 16. and other Statutes concerning Aliens and the Statute of 5 Eliz cap 4. 1. Whether the Statute of 5 Eliz. cap 4. doth repeal the former Statutes concerning Aliens taking Apprentices Iourny-men and Servants 2. Whether Aliens made Denizens may use any handycraft within the Realm otherwise then as Servants to the Kings Subjects Memorand That on the seventh day of July We met at Serjeants Inne in Fleetstreet Mr. Attorney-generall being there and We debated the matter and upon perusall of the Statute of 1 R 3. cap 9. and the other Statutes And upon some mis-recitall of the Statute 1 R 3. by the Statute 32 H 8. cap 16. And upon differences of the Printed Statute from the Parliament Roll as was supposed upon shewing of an old Book of Statutes which was in French and brought by my Brother Crook and upon the intricacy of the Statute We could not resolve on the suddain upon these Questions at this time nor unlesse the Parliament Roll might be seen But upon perusall of the Statute of 5 Eliz cap 4. We all resolved and agreed That all Aliens and Denizens are restrained by the Statute of 5 Eliz cap 4. That they may not use any Handycraft mentioned in the said Statute Resolves upon the Statute of 5 Eliz. cap. 4. concerning Aliens unlesse they have served seven years as Apprentices within this Realm according to the provision of this Statute This was set down in writing by Sir John Banks his Majesties Attorney Generall present Sir John Bramston chief Iustice of England Sir John Finch chief Iustice of the Common Bench Sir Humphrey Davenport chief Baron Baron Denham Iustice Hutton Iustice Crook Baron Trevor Iustice Crawley and Baron Weston the other Iudges being absent viz. Jones and Vernon Hil. 12 Car. Souser versus Burton ONe Widow Souser brought an action of the Case against Burton for these words Thou old Witch thou old Whore leave oft thy witching or else thou shalt be hanged or burned if I can do it And upon Not guilty pleaded and Verdict for the Plaintiff it was moved in Arrest of Iudgment And it seemed to Lord Finch Hutton and Vernon that the action lay not without shewing that she did any act of Witchcraft for which the pain of Pillory and Imprisonment for two years should be inflicted and the second time Felony And that the words Words Thou art an old Witch or go away thou old Witch are usuall words and old Whore bears no action And as to say Thou shalt be hanged if I can do it it is not possible that he could do it But Iustice Crawley doubted of it at first because that it was alledged that it had been adjudged in the Kings Bench that an action lies for calling one Witch But afterwards he said that he had spoken with the Iustices of the Kings Bench of their reason who said that they adiudged no such thing unlesse that he spoke further that the party had done any act of Witchcraft punishable by the Statute Hugles versus Drinkwater AN action of Account by William Hugles against Thomas Drink-water for receit of eighteen pounds In Account payment by appointment of the Plaintiff is no plea before the Auditors where the Issue was Ne unques receivor by the hands of one William Appowell to the use of the Plaintiff the Defendant plead Ne unquer receivor per manus c. and found or the Plaintiff And the Defendant before the Auditors plead that he by the appointment of William Appowell had paid it to one John Marsh for the Debt of the Plaintiff and therupon Demurrer And adjudged a bad Plea and against his former Issue And the said Appowell by whose hands he received the said summ had not any power to appoint the Defendant to pay it to John Marsh to whom the Plaintiff was indebted and if that had been pleaded in Bar of the Account to have been done by the appointment of the Defendant it had been a good Bar vide Dyer 29. 196. after ne unques receivor and the truth was that he had been Receiver and had paid it over by the appointment of the party and yet by this Plea be hath lost the advantage therof An. 2. Car. MEmorand That the 19. day of May An 2 Car. all the Iudges being assembled at Serjeants Inn in Chancery Lane by the commandment of the King the Attorney Generall propounded In what cases a prisoner arraigned shall have Councell that the King would be satisfied by our opinion Whether any person which is arraigned of Treason of Felony ought by the Fundamentall Lawes of this Realm to have Councell And We all una voce answered That when any one is indicted of Felony or Treason or any other such offence the party ought not to have any Councell unlesse it be upon matter in Law as where he demand Sanctuary or plead any speciall matter and that is agreed by Stamford fol. 151. Also this extends as well to Peers of the Realm as to others vide 1 H 7. 23. and the 9 E 4. 2. and so it was agreed by all that although the party shall have Councell in an Appeal of Murther yet if he be non-suited and the party be arraigned upon the Declaration then he shall have no Councell Also it was resolved that when the party who prosecute suppose that the Grand Iury will not find the Invictment and therfore requires that the Evidence should be given publickly to the Iury at Bar which is sometime done yet the party who
and Beaumount 77 Specot and Shere 91 Simpsons case 92 Shudsouth and Fernell 107 T. TImberly and Calverley 47 Tadcaster and Hallowell 47 Thompson and Green 105 Trugeon and Meron 128 W. WIlde and Woolf 41 Wolley and Bradwell Wrotheys Case Sir George Walker and VVorsley 83 VValcot and Hind 14 PASCH 15 JACOBI Combes versus Inwood THE first day which I sate at the Bench after the day in which I was sworn Ejectione suma A Conveâ—ance delivered to be enrolled and yet not inâ—â—lled shall be accounted a Record i. e. Thursday the twenty second of May A Iury was at the Bar from the County of Surrey in an Ejectione firmae brought by Combes against Inwood upon a Lease made by one John Stockwood which was Heir to one Edward Stockwood and was for a Farm in Chertsey called Haylwick And upon Evidence the Case appeared to be thâ—â—s Edward Stockwood was seised in fee and about the 29 Hen 8. this Land was supposed to be conveyed to King Hen. 8. in fee for the enlargement of the Honour of Hampton but no Deed nor any other matter of Record was in being to prove this originall Conveyance and many Arguments were used to prove that there was never any such Conveyance because there was not one of any such conveyance named in the Act of 31 H 8. But of the other part it was proved that this Land had continued in exchange as the Land of H 8. all his life by divers accounts and that it had been enjoyed by divers Leâses made by Edward 6. and Queen Elizabeth and Rent paid for them And that in the year 16 Eliz. she granted it in Fee-farm to the Earl of Lincoln and under that Title the Land had been quietly enjoyed untill of late time And the Court delivered their opinion That it there were a Deed by which Stockwood conveyed the Land to H 8 and that brought into the Court of Augmentation although this Deed be not found nor inrolled yet it is a sufficient Record to intitle the King and it is a Record by being brought into Court and there received to be inrolled And the Report of the case in Lord Dyeâ— fol 355.19 Eliz. was not as it is there reported for it was for Bormiâ— Inne and it was adjudged a good conveyance and in this case the Iury found for the Defendant Trin. 14 Jac. Rotulo 769. Steward versus Bishop Words STeward brought an Action upon the Case for certain words against Bishop because that the Defendant said Steward is in Leicester Gaol for stealing an Horse and other Cattell the Defendant pleaded not guilty and the Iury found for the Plaintiff and Damages to thirty pounds And it was moved in Arrest of Iudgment by Serjeant John Moore that the Action doth not lye for the words do not affirm and Deed or Act or Offence but that he was in prison upon suspition of an Offence And it is the Ordinary speech and communication by way of interrogation What is such a one in prison for For stealing And all the Kalenders are such a one for stealing of a Horse such a one for Murther Vide Coke lib 4. he is detected for Perjury is not actionable And to say such words of a Iustice of Peace or an Attorney peradventure it shall be otherwise yet it seems all one if it touch not him in his Profession To say that I. S. was in Newgate for forging of Writs will not maintain an Action and so adjudged in Nowels case and Iudgment was given that the action will not lye Pasch 15 Jac. ONe brought and Action upon the Case and counted that the Defendant in consideration that the Plaintiff would take such a woman to his Wife promised to pay twenty pounds when he shall be therto requested after the marriage Request where it shall not be alledged and that the Plaintiff such a day had married the said Woman and the Defendant though often requested did not pay the aforesaid twenty pounds And it was moved in Arrest of Iudgement that he had not shewn any particular request but yet Iudgment was affirmed for the Plaintiff for this action is grounded upon the promise which imports Debt and not upon any collaterall matter which makes it a duty by the performance of a collaterall Act upon the request Trin. 15 Jac. Resolved upon the Statute of 3 H. 7. Cap. 2. VPon divers Assemblies at Serjeants Inne of all the Iudges to consider by the direction of the Star-Chamber whether by the Statute of 3 H 7. cap 2. the taking of any Woman against her will and the marrying or deflowring of her be Felony or only of such a Woman which hath Substance or Goods or Lands or otherwise be an Heir apparent the body of the Act seems to be generall viz. He that shall take any Woman so against her will And it was said that it were a great inconvenience that it shall be Felony to take an Heir apparent of a poor man or to take a Woman which hath but a very small Portion and of mean Parentage and as it was said of a Woman in a red Peticote and that it shall not be felony to do and commit the said Offence in taking the Daughter of an Earl or some other great man of the Realm But it was resolved that the body of the Act was incorporated to the Preamble for it had been adjudged that if one take a Woman with an intent to marry her or deflower her c. and doth it not this is not Felony and this rests only upon the Preamble then it shall have relation as well to such a Woman which is before named viz. Maid Widow or Wife having substance and to an Heir apparent and to no other And so it was taken in a Case in the Star-Chamber by the like resolution 10 Jac. between Baker and Hall and the Lord chief Baron said Baker and Hall that it had been adjudged that no Appeal did lye upon this Statute and all the Presidents in effect warrant this resolution vide Stamford fol. 37. Statute 1 H. 4. Cap. 14. COnsideration upon the Statute 1 H 4. Cap 14. was had how the word Appeals shall be intended before the Constable and Marshall And 26 Eliz. Doughties Case Doughties case Petition was made to the Queen by the Heir to make a Constable and Marshall but she would not Admitting that the King get a Commission of the Office of a Constable and Marshall whether the King may have any remedy before them by Indictment or information by the Attorney generall Mich. 15 Jac. Andrews versus Hacker AN Assise of Darrein Presentment was brought by Andrews against Hacker and the Earl of Salop Assise and against the Arch-bishop of York for the Church of Gothur in the County of Nottingham the Assise was brought to the Bar and when the Iury appeared the Arch-bishop made default and the others appeared and pleaded in abatement of the Writ that the same
Court 12 E. a. granted a Rent-charge of two shillings out therof to John Milleton and Walter Milleton In Replevin one makes Conusance derive his Estate from one as Cosin and Heir and shews not how John Milleton dies and Walter survived and died seised and this Rent descended to one John Milleton of P. as Cosin and Heir to the aforesaid Walter and he was seised in Fee and one John Dinham was seised in Fee of one house and twenty acres of Land in Pensons and by Deed shewn in Court exchanged them with the said John Milleton for the said Rent and Walter de la Therne being seised of the Land out of which the Rent issued attorned and gave Seisin of the Rent to John Dinham wherby he was seised in Fee of the Rent and conveyed the Rent by three discents to this John Dinham for whom the Defendant makes Conuzance for ten shillings for five years arrear And the Plaintiff demurs generally upon the Conuzance And the cause was that it is not shewn how John Milleton is Cosin and Heir to Walter upon the discent First if it be good as this Case is viz. That he claimes not as Cosin and Heir but makes Title under him by conveyance afterwards Also because the Defendant makes Conuzance and is a stranger Secondly if it be but forme And this Case was argued at Bench briefly in Trin. 16. And I was of opinion because that this is the Conuzance of a Bayliff and it is a discent in one blood to which Dinham is a stranger and because that a good Issue might be taken therupon as it is alledged And if it had been a case of Bastardy the Iury might have tryell it therfore it is good by the Common Law and differs from a Formedon for there he which brings it is privy vide 41 Eliz. 13 14 in a Scire facias good without shewing how 33 H. 6. 34. Sir T. C. Case 27 H. 6. 2. 4 E. 3. 43. vide 19 E. 3. Quare impedit 58. And if it were not good by the Common Law yet it was but form and aided by the Statute of 27 Eliz cap. 5. vide in Doctor Leifeilds Case lib 10. fol 94. And Iustice Winch agreed with me but Warburton to the contrary and argued strongly that it was substance and was very materiall and he relied upon the Book in the 38 H 6. 17. and he put the cases of 11 H 6. 43. 8 H 6. 22. 2 H 2. and Wimbish and Talbois case Plowden There is debate and argued two against two and no Iudgment given because that it is not shewn Comment Cosin vide 2 H 5. 7. a good Issue there is no such Ancestor a generall Demurrer confesse not the matter as in Debt upon a Bill he plead payment and the Plaintiff demur that Demurrer doth not confesse the payment Lord Hobart would not speak of the Common Law but it seemed good to him by the Statute The Title of the Act is An Act for furthering of Justice Definitive Iustice and Interlocutery The Statute takes not away form but the intrappings and snares of form No place where the Obligation is made cannot be tried by them affirmatively Hough and Bamfields case matter and no form and so Dyer 319. But the point of Cousinage which comes by videlicet is form And if the case of Wimbish and Talbois had been at this day it should bee aided and Iudgment for the Defendant Sheriff ought to deliver the Moyety by meets and bounds IT was argued by the Court that upon an Elegit the Sheriff ought to deliver the Moyety by meets and bounds and if it be so that the Conuzor be Ioynt-tenant or Tenant in Common then it ought to be so specially alledged and contained in the return Pasch 16 Jac. Drury versus Fitch Case DRury an Attorney of this Court brought an action upon the case against Fitch one of the Serjeants of London for saying I arrest thee for Felony and after not guilty pleaded the Plaintiff was Non-suited Costs upon Non-suit where the Plaintiff hath no cause of action And now it was moved that no costs should be given to the Defendant because that the words will not beare action and therfore Iudgment shall be given Quod nil capiat per billam And they vouched one President in Grewstons case in Ban. Reg. vide that now by the last Statute costs shall be given to the Defendant in all cases where the Plaintiff should have costs if he recover but in such case where the Plaintiff if he recover shall not have costs the Defendant upon the Non-suit of the Plaintiff shall not have costs But it seemed to Lord Hobart that in this case the costs are for vexation and this is more vexation if he had no cause of action vide 29 H 8. fol 32. It is there resolved that an action lies for the costs notwithstanding a Writ of Error brought And the last day of this Term the Court was of opinion that the action lies for the words for it is more then these I charge thee with Felony and if the Action lies not yet the Defendant shall have costs for it was such an Action in which the Plaintiff ought to have costs if he recover Vpon motion in Court by the direction of Iustice Warburton who had caused a Iury to be drawn by reason of the slendernesse of the matter and for avoiding the charge of a speciall Verdict the Case was A Copyholder was a Lunatick and the Lord committed the custody of his Land to one which brought an Action of Trespasse Action brought by the Committee of a Lunatick which is a Copyholder and whether it ought to be brought by him or by the Lunatick was the question And the opinion of the Court was that the Committee was but as Bayliff and hath no Interest but for the profit and benefit of the Lunatick and is as his Servant and it is contrary to the nature of his Authority to have an Action in his own name for the interest and the Estate and all power of Suits is remaining in the Lunatick And it was ruled in this Court that a Lunatick shall have a Quare impedit in his own name vide Beverlies case Coke lib 4. the diversity between a Lunatick and an Ideot and H 8. Dyer fol 25. And though when Guardian in Socage as it was adjudged makes a Lease for years his Lessee shall have an Ejectione firmae yet there the Guardian hath the Interest and is accountable therfore But in this case the Committee hath no Interest but is as a Servant appointed by the Lord to keep the possession for him who is not able to keep it for himself Lord Hobart and the Court also agreed that the Lord of a Mannor hath not power to commit or dispose of the Copyhold of a Lunatick without speciall Custom no more then a man shall be Tenant by the Curtesie c. of a Copyhold
Boucher Turner Bolder and one other Turner appear and tender his Law Sir John Boucher and another plead Nil debent and the other was Outlawed and it was said that he ought to have joyned but it was resolved by the Court that they may sever in Bars but ought to joyn in Delatories For otherwise if one which never bargained be joyned in the action he must put his matter upon their pleadings And in Debt upon a joynt Obligation one may plead a Release the other Non est factum vide 48 E 3. 21. and vide Presidents in this case according to this resolution Sabud versus Râ—w â— Trin. 26 Eliz Rot. 821. Trin 26 Eliz Rot 821. Sabud against Robinson Matson and Loughton and Count sur emisset Waston and Loughton pleaded and Non sum informatus by Robinson Sed judicium inde cesset quousque the Issue be tryed and Venire facias awarded and found for the Plaintiff Peâ—iam T.P. H. P I.P. Hil 41 Eliz Rot 455. John Periam and Margaret his wife Executors of John Hart vrought an action of Debt upon Emisset against Thomasin Phelpes Widdow Henry Pittard and John Phelpes John Phelpes was Outlawed and Iudgment against Henry P. by Non sum informat and Thom P. plead Nil debet Fleet and Harrison Venire facias and Iudgment respited quousque c. and after tryall the Plaintiff had Iudgment Hil 13 Jac Rot 841. Fleet brought an action of Debt against Ja Harrison and Isaac Brooke upon Emissent And James H. waged his Law Iudgment against Isaac Brooke by nihil dicit Et quia Conveniens est quod judicium de loquela praedicta unicum sit versus praedictos Isaac Jacobum si contingat ipsum Jacob. de perficiend legem suam praedictam desicere Ideo parcat in judicium inde versus praefatum Isaac reddendum quosque praedictus Jacobus legem praedictam perficeret sive inde desiceret postea praedictus Jacobus perfecit legem suam Ideo consideratum est per Curiam quod praedictus querens nihil capiat per breve suum praedictum sed sit in miserecordia pro falso clamore suo inde quod praedictus Jacobus eat inde sine die And according to this President it was agreed per Curiam that so it ought to be Hil. 12 Jac. Rot. 3007. Reyner versus Waterhouse Ebor. Case JOhn Reyner brought an action upon the case against L Walterhouse Ven. fat de dâ—versis villis and declares that wheras he is and by the space of twenty years past have been an Inhabitant within the Town of Long Leverseidge in the Parish of Burstall And wheras the Inhabitants of Long Leverseidge aforesaid De tempore cujus contrarii memoria hominum c. used to have a common way as well for Foot-men as for Horse-men to go and ride from the said Town of L. to the Parish Church of Burstall aforesaid on Lords daies and Festivall daies and other convenient times to hear Divine Service within the said Church and to carry bodies c. dying in the said Town to the said Church to be interred Modo forma sequent viz c. and shews the way through divers Closes in Long Leverseidge Little Leverseidge and Gomersall and over the Church-yard of the Church of Burstall and from thence unto the Church aforesaid and backward c. and shew one disturbance made by the Defendant by making of a Ditch in one of the Closes in Gomersall the Defendant pleaded Non culpab and found for the Plaintiff and in Arrest of Iudgment it was alledged that the Venire facias fuit de Gomersall tant And the Venire facias was quashed per Curiam and a new one awarded de L.L.G. Burstall Hil. 16 Jac. Bigg versus Malin BIgg brought an action upon the Case against Malin Case as Administrator and counts that whereas the Intestate was indebted to him in ten pounds and the Defendant also was indebted to him in forty shillings they accounted and upon account the Debt being twelve pounds In case upon Assumpsit against Executors it is not necessary to alledge Assets the Defendant being Administrator did assume and promise to pay it Et licet saepius requisitus non solvit And upon Non assumpsit pleaded the Verdict was found for the Plaintiff And by Finch it was moved in Arrest of Iudgment that the Plaintiff had not shewn in this Count sufficient consideration to charge the Defendant because that it doth not appear that the Defendant hath Assets But the Court disallowed that for if that were necessary it ought to be presumed to be found in the Verdict As in the case in consideration that the Plaintiff had sold and delivered to him twenty quarters of good and merchantable Barly the Defendant promise to pay him twenty pound Non Assumpsit the Plaintiff ought to prove the promise and the delivery And as in Debt against Executors upon a simple Contract it shall not need to be alledged that they had Assets to pay Debts by specialties yet good and that ought to be proved But it seemed to be agreed that if an Executor or Administrator which hath not Assets makes promise of payment if it be not mixed with any profit to himself viz. forbearance c there it shall not charge him But by Warburton if an Executor hath fifty pounds Assets and he promise to pay to a Creditor a hundred pounds that shall bind him for all for when he hath Assets for part the Plaintiff hath Iudgment for all and execution only for so much as is found And in this case the Plaintiff had Iudgment Brook versus Groves BRook brought a Quod permittat against Groves and after Imparlance the Defendant demanded a view and ruled by the Court that he might and vide 34 H 6. 9 10. accordant vide 6 E. 4. 1. and the Plea Quare impedit viz. the View was De tenementis predictis which was as well of the Lands to which the Nusance as of the Lands which was the Nusance View And the View in this action is but for fifteen daies Egerton versus Egerton THe Lady Egerton Wife of Sir John Egerton brought a Writ of Dower against Edward Egerton the Tenant at the day of Essoin did not cast any Essoin And the Demandant entred her exception at that time the Writ was not returned and upon motion to the Court for the tenant to be essoined notwithstanding the exception Dower it was resolved that notwithstanding the writ was not returned yet the Tenant might have his Essoin vide 2 E. 4. 11. 21 E. 4. 7 8. 30 H. 6. 1. that an Essoine may be before the Writ be returned and vide 2 H 7. 4. 10 E 4. 4. the Tenant may be Essoined at any day Essoin though the Writ be not returned as wel at the fourth daie as the day of Essoin unlesse the Essoin be challenged viz. an exception
entred and 2 H 7. 4. takes a difference between a reall Action or Originall Suit and a Writ of Execution for upon the first the Essoin lies at any time before the fourth day but in the Writ of Execution the Defendant ought to be essoined at the day of the Essoin And Warburton said that if the Essoin be not cast before the return of the Writ it ought not to be at all for all Writs come in by Post diem Cardinals Case CArdinall an Attorney of this Court of Common Bench Case brought an action upon the case against I. B. for saying of him That he had forged the last Will of I. S. and after Issue upon not guilty it was found for the Plaintiff And moved in Arrest of Iudgment Words that it is not alledged that the Will is supposed to be forged But by the Court that was necessarily implyed and the Plaintiff had Iudgment Pasch 17 Jac. Allaboyter versus Clifford Suff. JOhn Allaboyter brought an action of Debt upon an Obligation against Daniel Clifford which was with a Condition Debt that if the Defendant perform the Award of two Arbitrators of all Actions Demanos c moved between the Plaintiff and Defendant from the beginning of the world untill the day of the date of the Obligation Arbitrement so that the arbitrement be made before the tenth day of December the Defendant plead no such award before the day the Plaintiff reply and shew that the ninth day of December they awarded of and upon the premisses and arbitrated that the Defendant should pay to the Plaintiff fourteen pounds at two severall daies and that upon the last day the Plaintiff should make a generall release to the Defendant and the Defendant likewise to the Plaintiff and alledge a breach for the non payment of the first seven pounds and aver that the fourteen pounds was awarded to the Plaintiff in full satisfaction of all suits quarrells c. depending between the Plaintiff and the Defendant at any time before the Date of the Obligation upon which Plea the Defendant demurred and objected by Attho that the Release which is appointed to be made upon the last day is not appointed but after the payment of the money and also is then to be made of more then is submitted to them But by the Court it is agreed to be a good Award for it shall not be intended that there were more matters arising between them after the date of the Obligation Also if he had made a Release untill the date of the Obligation that were a good performance And this Case had been adjudged before between Nichols and Grandie Nichols and Grandy George Andrews Case VPon a Habeas Corpus one George Andrews was brought to the Bar and upon a long return by the Mayor Aldermen and Sheriffs of London The Custome of London to give security for the payment of the Portions of Orphans and upon refusall the Debters are to be committed of their custom concerning the Orphans of Free-men and for the security of their Portions to be paid to them at the age of 21. years or at the time of their marriage or at such time as is appointed by the Will of their Father or Mother or other Free-men giving to them any Legacy they use to take sufficient security of them which ought to pay them and if they refuse then to commit them to the Counter untill they give security and that their customs were confirmed by Act of Parliament An. 7. R. 2. William Andrews a Free-man having one Son and one Daughter by Emery his Wife died this George Andrews a Free-man being Suitor to the Wife before marriage agreed that if the Wife would marry him she should dispose of two hundred pounds c. and he was bound in a Statute to permit and suffer her to make her Will and dispose therof and after she died and by her Will gave a hundred pounds to her Son and a hundred pounds to her Daughter and the said G.A. agreed to her Will and yet refused to give security to the Chamberlain of London to pay it at the day appointed by the Will pretending that he was bound by Statute to the Friends of the Orphans to perform it And by the Court he was remanded for it is a laudable Custom and the voluntary Obligation upon marriage is not any discharge as to the security by the Custom and we will not disparage the Government of the Citty Trin. 16 Jac. Wolfe versus Heydon London Debt THomas Wolfe Administrator of the Goods and Chattels of John Aldrich durante minore aetate of Edward Aldrich William Aldrich and other Children of the said John not administred by John Talbot Executor of John A or by Robert Armiger late Administrator of the said Goods and Chattels during the minority of the said Children not administred To what intents a man shall be said Executor before he prove the Will brought an action of Debt against Simon Heydon and count upon an Obligation of fifty pounds wherof ten pounds was satisfied to John Aldrich in his life and counts that John Talbot was made his Executor and died and that the money was neither paid unto the said John Aldrich the Testator in his life nor to John Talbot the Executor in his life nor to the said Robert Armiger late Administrator of the Goods and Chattels of the said John Aldrich during the minority of the Children and he produce Letters of Administration and aver that the Children were within the age of seventeen years The Defendant plead in Bar that the said Aldrich before this Writ purchased viz. such a day at S. in the Parish c. made his Will and constituted John Talbot his Executor Qui suscepit onus inde and administred divers Goods as Executor and after viz. such a day the said John Talbot made Benjamin Roblet his Executor and died and Roblet suscepit onus testament and did administer and demand Iudgment si actio c. The Plaintiff reply and confesse that John Aldrich made John Talbot his Executor and that he administred and made Roblet his Executor But he saies that the said John Talbot did not prove the Will of the said John Aldrich according to the Ecclesiasticall Law and that the said Benjamin before that he took the charge of the Testament of John Talbot renounced before the Ordinary to be Executor of the said John Aldrich or to administer any of the Goods which were the Goods of the said Iohn Aldrich or to have any thing to do therwith And therupon the Defendant demurs and Iudgment was given for the Plaintiff And in this case the Court well agrees with the replication for he was Executor before probate to pay Debts and to be sued but not to have an action though that originally the probate was temporall and it is no plea in our Law scil that he did not prove the Will but that he was not
inclosing Woods but suffering them to lye open after cutting by the space of one month he alledged the cutting the tenth of April and the lying open untill the second of May which was not a month And upon Not guilty pleaded it was found for the Plaintiff and upon motion in Arrest of Iudgment it was awarded that the Defendant eat inde sine die and no costs And the Lord Hobart said that this Statute was made for the ease of the Subject and for avoiding and preventing of vexations and therfore did enumerate all the cases in which the Informer could not prevail and had many words that the Statute of 23 of H. 8. or any other Statute doth not give expresly costs upon demurrer and this is not within 23 H. 8. if upon discontinuance And now the matter passe against the informer be it by Verdict or Iudgment all is one for the makers of this Statute intended to curb all vexatious Informers And if it shall be suffered that Informers may inform upon Statutes not in force and pay no costs that would open a Window to the great vexation of the Subjects And for Presidents not inflicted upon they are of little esteem And I concurred and though Verdict be found for the Informer yet there being no Statute there can be no Offence and it is in Law as not guilty And this case is within the meaning and Letter of the Statute for the Statute intend costs where the cause passe against the Informer be it by default of matter or form Winch doubted of this speciall case because the matter is found for the Informer but he agreeh if it were upon Iudgment upon demurrer or speciall Verdict costs should be given And Iustice Warburton was of opinion that there should be no costs in this case for he is not capable to sue where the Statute is discontinued And so if the Venue be misawarded and he said that he had conference with the Lord chief Baron who also held that there should be no costs in this case And so the matter rests Blackburnes Case Norff. Debt AN action of Debt was brought by I. S. against Blackburne upon a Lease for a year and so from year to year And upon Nil debet pleaded the Iury gave a speciall Verdict to this effect A Devise to a Feme of a term upon condition Wells seised of Land in Fee devised them to his Daughter and her Heirs when she come to the age of eighteen years and that his Wife should take the profits of the Land to her use without any account to be made untill the Daughter come to the age of eighteen years And made his Wife his Executor and died And it was provided that the Wife should pay the old Rent and find the Daughter at School untill she could read and write English the Feme enters and proves the Will takes Husband and dies the Husband assign this term to the Lessor who brought this Action And it was found that all the Conditions were performed and that the Daughter was within the said age of eighteen viz. thirteen years And the sole question was whether it be a term for years in the Wife and whether when she takes Husband he shall have it after the death of his Wife and it was ruled clearly that it is and it being by Will it is a good Lease Another question was if this trust of Education be Quasi a Limitation personall and with intent that the Lease shall not be to the Wife any longer then she may educate her Daughter And it was agreed that it was not for any one may educate her and find her at School and there it is without any default in the Wife for it is the act of God and therfore Judgment for the Plaintiff Trin. 17 Jac. Whittingtons Case IVdgment in Debt against Ferdinand Earl of Derby Scire facias Sci. fac by the Baron and Feme the death of one of them shall abate it at the Suit of I. Whittington and his Wife she being Administrator to her Husband who had the Iudgment who brought a Sci. fac upon the Iudgment against 30. Ter-tenants they appear and all besides 3. plead that at the time of the Iudgment Ferdinand the Earl was seised in tail c. And the Plaintiff had Iudgment against the three with a cesset executio and afterwards Whittington the Husband died and this is surmised and entred vpon Record viz. the death of the Baron after the Darrein continuance and whether the Writ shall abate or no was the question And per totam Curiam the Writ shall abate for the Wife there cannot recover as a Feme sole and though this Writ be judiciall yet it is in nature of an Originall for she might have had an action of debt upon the Iudgment and ought to have that action solely after the year untill the Statute of Westminster 2. which give Scire facias and to this Writ they may plead But in Writs Iudiciall which are only Writs for the doing of execution there the death of one shall not abate it vide 19 Ass 10. 25 E 3. and vide Reads case Coke lib 10. fol. 134. Ruggles Case IN Ruggles Case upon the motion of Serjeant Arthure upon the Statute of 1 Jacobi cap. 15. concerning Bankrupts How the distribution of the Estate of a Bankrupt shall be a Commission was sued out by some of the Creditors and they pursued it and the Land was sold and it being opposed they defended their severall Suits and prevailed by a tryall at Bar And after other Creditors which before would neither partake nor aid them came and prayed to be joyned with them And the Commissioners doubted upon the Statute whether they might allow them to be joyned and the words of the Statute are That it shall be lawfull for any of the Creditors of the Bankrupt within four months after the Commission sued forth and till distribution shall be made by the said Commissioners for the payment of the Bankrupts Debts as in such case hath been used to partake and joyn with other Creditors that shall sue out the said Commission the said Creditors so joyning to contribute to the charges of the said Commission and if the Creditors came not in within four months then the Commissioners to have power to distribute It was resolved that the Commissioners may sell and prepare for distribution presently upon the execution of the Commission but untill the four months are passed they may not proceed to distribution for the Creditors which inhabite in the remote part of the Realm peradventure cannot have notice and it may be carried so secretly that if they might distribute presently that they which sued out the Commission should be only satisfied when indeed there was no default in the others Also it was resolved that the offer of Creditors to be joyned and before they be partakers is not an affectuall offer without offering to be contributory
to the charges But to offer any particular summ is not necessary because they know not what summ is disbursed and that is to be assessed by the Commissioners And the words for the charge of the Commission is to be extended to all charges arising in suing forth the Commission and in execution and defence therof Also it was resolved that at any time before the distribution made they may come and pray to be joyned But after the four months passed and any distribution made though it be but of part then they come too late For by this means the distribution which is made and wherby some of the Creditors shall receive more shall be utterly avoided and another proportion made which was not the intent of the Statute Pasch 18 Jac. Mason versus Thompson Case AN action upon the case was brought for these words I charge thee with Felony for taking money forth from Iohn Spaci's Pocket and I will prove it Words Henden moved in Arrest of Iudgment that these words were not actionable First because that it is not any direct affirmative that he is a Felon and for that he vouched a case as he said adjudged in the Kings Bench Masters bear Witnesse that he is a Theef The second reason was because that the matter subsequent do not contains matter which must of necessity be Felony but stands indifferent For if it be not privily and secretly it is not Felony and it may be by way of sport or trespasse For as one said That he is a Theef and stole his Timber it is not actionable for it might be Timber cut or Timber growing so to say That he stole his Corn or his Apples or his Hope For in Mitiorem partem verba sunt accipienda And it seemed to the Lord Hobart that the first words viz. I charge thee with Felony are actionable for the Constable if he be there present ought to apprehend him therupon and it is a plain Affirmative I arrest thee of high Treason Iustice Winch prima facie held that the words were actionable and not qualified by the subsequent words as it should be if he had said For thou hast stoln my Apple Trees standing in my Orchard that could not be Felony but it is not so there for it may be Felony and ex causa dicendi it shall be taken Felony in these words for taking money c. Warburton and Hutton was of opinion that the Action lay not This Case was moved in Mich. 18 Jac. And then the opinion of the Court praeter Warburton qui haesitavit was that the Action did not lye Ideo memorand quod quetens nil capiat per breve Trin. 18 Jac. Hall versus Woollen JOhn Hall an Attorney of this Court Case Consideration of an Asâ—urâ—p sit brought an action upon the case against Woollen and declared that wheras the Defendant was possessed of an House and Land in Mekon Mowbray in the County of Leicester for one term of the Lease of Sir John Woodward And wheras one Webb was in communication of buying the said Lease of Woollen and Woollen could not sell it without the assent of Sir John W. The Defendant in consideration that the Plaintiff would procure licence of the said Sir John he promised to pay to him so much as he should disburse and deserve therfore And averred that he did procure a License and delivered it to the Defendant and disbursed such a summ and deserved for his labour such a summ and the Defendant upon the Count did demur And the question was whether that were a good consideration or no for it did not appear that there was any condition to restrain him from making an Assignment and if I promise that wheras I am obliged to A. if you will procure B. which is a stranger to make a Release therof to me I will pay you forty pounds though it be done at my instance no action lies for it is apparant that B. could not release the Obligation But it was adjudged that is a good consideration for it appears that there was privity between them and it may be that he had promised that he would not assign it without his licence And in good discretion it was convenient to have it also it was at his instance and for his satisfaction And it hath been adjudged if one promise forty pounds to another if he can procure the assent of the Mother of a woman though he may do it without such consent yet it is a good consideration Mich. 18 Jac. Clerk versus Wood. CLerk brought an action upon the case against one Wood Case alias Warren and count that he was seised of an house and twenty acres of land c in Thursfield and that he and all those whose Estate he hath have had a Common in seven acres in Thursfield And that he and all those c. have had one way leading through the said seven acres Ven. fac upon prescription for a way in divers Townâ— and from thence into one Common way leading to Buntingford and from Buntingford to Blakeley And that the Defendant had plowed and turned up the seven acres and estopped the way The Defendant pleaded not guilty and the Venire facias awarded de Tursfield And it was moved in Arrest of Iudgment by Serjeant Jones that it ought to be from all the Towns through which he claim his way for he ought to prove it in evidence viz. that he had a way or otherwise he is not endamnified But it was resolved that the tryall was good for Not guilty is properly a deniall of trespasse and disturbance and though he ought to prove title to the way yet it is sufficient if he prove title to the way by and through the seven acres upon evidence And yet if the Prescription had been traversed then he ought to prove all the way any the tryall shall be from every Town through which the way is pleaded to be extended quod vide 10 E. 4. fol. 10. where it was in two Counties and the Venire facias shall be from both and the tryall shall not be by Nisi prius vide the case between Reyner and Waterhouse supra Mich. 16 Jac. Rot. 2344. Lamb versus Thompson Debt A Condition not to be assisting to another hinders him not to bring a Writ of Error joyntly with him EDmund Lamb brought an action of Debt against Richard Thompson upon an Obligation of forty pounds the Condition whereof was If the Defendant shall not be assisting or any waies aiding unto Thomas Elme or any other person for the said Thomas Elme in any Actions Suits Vexations c. to be commenced and prosecuted against the said Plaintiff c. That then c. the Defendant pleaded Negative The Plaintiff reply that he such a day brought Trespasse against the said Thomas Elme and the now Defendant and had Iudgment and that the Defendant joyned with him in a Writ of Error in hinderance of the
3 H 6. 14. 32. there it is well argued and the better opinion that it is only by argument And a man outlawed may make an Executor and this Executor may have a Writ of Error to reverse the Outlawry And therupon and upon the view of the Record in Woolleys case the Court gave Iudgment that it is no plea. Lightfoot versus Brightman Covenant LIghtfoot brought on action of Covenant against Brightman and count that the Defendant being possessed of an Advowson in grosse for tearm of years covenanted that he would not grant nor assign his Interest to any Grant of an Advowson pleaded without alledging to be by deed good if the issue be taken upon collaterall matter without offer therof first to the Plaintiff and that he should have it fifty pounds better cheap then any other and alledge breach of the Covenant that he granted the said Advowson and his tearm therin over without offering it to the Plaintiff and Issue joyned upon non concessit and found by Verdict quod concessit and damages fifty pounds And it was moved in Arrest of Iudgment that it is not alledged that the Grant upon which the Issue is joyned was by Deed and then no breach assigned I at the first was of opinion that the Iudgment should stay but after upon advisement I concurred with Serjeant Hobart and Iustice Winch that it was averred by the Verdict for now it being a perfect Grant it shall be intended that upon the Evidence a Deed was shewn as upon Issue joyned upon Grant of a Reversion where it is not alledged that it was by Deed or that the Tenant atturned yet if it be found it shall be good And so in Avowry for a Rent-charge where the Grant therof is pleaded not by Deed and Issue is joyned fur concessit and found quod concessit that is good by the Verdict like to Nichols case Coke lib 5. Debt upon a Bill payment pleaded and Issue found for the Plaintiff he had Iudgment But it seems if it had been found for the Defendant the Plaintiff shall have Iudgment for the Bar confesse the action as in the 9 H. 6. Debt upon an Obligation the Defendant plead that he delivered it to the Plaintiff to be his Deed when certain Conditions were performed And he pleaded that the Conditions were not performed if it be found accordingly yet the Plaintiff shall have Iudgment Coke lib 2. fol 61. Wiscots case a Lease by Baron and Feme which ought to be by Deed pleaded generally and found the Plaintiff had Iudgment vide Smith and Stâ—plâ—tons case Mich. 20 Jac. Chittle versus Sammon CHittle against Sammon in Replevin Replevin Avowry for Rent granted to the Father in see without alledging that it was arreare after the death of the Father Counsance for Rent as Bayliff to Sir John Reves upon a Grant out of the Land wherof the place in which c. was parcell upon a Grant made to the Father of Sir John and for Rent arrear c. Issue was joyned upon this point if the place was parcell of the Land out of which the Rent was granted and found by Verdict that it was And now moved by Attho in Arrest of Iudgment that it is not alledged that this Rent was arrear after the death of the Father as it ought to be and therfore it may be intended that this Rent was arrear in the life of the Father But the Court agreed and resolved that it was good after Verdict for now it is pleaded that it was arrear and not paid to him Ergo it was due to him and though it might have been more fully pleaded yet after Verdict it is sufficient Fletcher versus Harcot AN action upon the case was brought by Fletcher of Otely against Harcot and count Case that wheras the Defendant had arrested one Batersby by a Commission of rebellion Assumpsit in consideration that the plaintiff being an Hostler would keep a Prisoner to save him harmlesse issuing out of the Court of the Lord President and Councell of the North as he affirmed And wheras the Plaintiff keeps a common Inne in Otely and had kept it by the space of five years and had entertained men The Defendant requested the Plaintiff to keep the said Batersby in his Inne at Otely by the space of one night as a Prisoner and that he would keep and save him harmlesse and shew that he had kept him for that night as a Prisoner And Batersby afterward brought an action of false Imprisonment against him for the said keeping of him in his house and that he had expended and laid out in defence thereof ten pounds And that he had required him to save him harmlesse and he refused Non assumpsit found for the Plaintiff and moved by Harvey in Arrest of Iudgment that it is no sufficient consideration because it doth not appear that he had lawfully arrested the said Batersby for it is not affirmatively alledged but as he said Also it doth not appear that the recovery in the action of false Imprisonment was for the same cause but in that he had misinformed for it was in the Record Pro custodia praedicta ex causa praedicta And for the other matter the Lord Hobart seemed at first to doubt if it did not appear that it was a lawfull Arrest then there was no consideration But because the diversity when the consideration appears to be for doing of a thing which is unlawfull As if one at the request of I. S. promise to better I. D. and he promise to save him harmlesse this is a void Consideration But if one request I. S. to enter into the Mannor of Dale and drive out Cattle and that he will save him harmlesse if he doth so and after Trespasse be brought against him and recovery had he shall have his action So if a Sheriff pretending to have a Writ where he hath none arrest one and request an Inne-keeper to entertain him in his house or hire one to conduct the Prisoner to the Gaol and promise to keep him without Damage if an Action be brought and recovery had therupon the party shall have an action of the case against the Sheriff upon this promise for he which doth a thing which may be lawfull and the illegallity therof appear not to him he which imploys the party and assume to save him harmlesse shall be charged And Iudgment was entred for the Plaintiff Mich. 20 Jac. Parkers Case Debt Hue and Cry AN action of Debt was brought against the Hundred of _____ in the County of Stafford by William Parker upon the Statute of Winchester cap 1 2. reciting the Statute That forasmuch as Robberies do daily encrease Murthers and burning of houses and Theft be more often used then they have been heretofore Amendment of a false Abreviation and Felons cannot be attainted by the Oathes of the Iurors which had rather suffer strangers to be robbed and
are not Affirmative or Positive but a supposition only as if he had said Nowels case I will indite him for such a matter it was vouched to be adjudged 51 Eliz. in Nowels case that to say of an Attornaâ—â— That he was Cooped for forging Writs maintain an action And 14 Eliz. He is infected of the Robbery and he smelleth of the Robbary adjudged actionable In balls case There is never a Purse cut in Northamptonshire but Ball hath a part of it will not bear action But the Court would not declare their opinion Quia sub spe Concordiae Griggs Case GRigg which is the Examiner at Chester preferred there this Bill in the Chancery vocat the Exchequer Prohibition â—i Chester against one which inhabite within the same County and another which inhabite in London being executors to one to whom the said Grigg was indebted by Obligation which Obligation was put in suit in the Court of Common Pleas and there proceed to processe before the Bill exhibited and the Bill concern equity of an Agreement that the Testator had promised that one Robert Grigg should assign a lease of Tithes to the Plaintiff in consideration of his entry into the said Obligation and if he could not procure it that then the Obligation should not be prejudiciall to him and he which was distributing in Chester answered therto And an Order was made by Sir Thomas Ireland Vice-Chamberlain that Processe should be awarded to him which dwelleth in London And an Inquisition was granted to stay the proceedings at Common Law And afterwards upon the motion of Serjeant Hitcharâ— Sir Thomas Ireland was in Court and shew all that he could to maintain the Iurisdiction viz. That the Contract was made in the County Palatine and that the priviledge pursued the Plaintiff and ipse qui est reus non potest eligere c. Yet it was resembled to ancient Demesn and Guildable And by Lord Hobart he which inhabit at Doveâ— by this way may be inforced to come and answer to a Bill in Chester which would be infinite trouble and the matter is transitory And it was resolved that the Court of Chester had not power in this case but it belonged to the Chancery of England And a Prohibition was granted Hil. 20 Jac. ONe case was in the Kings Bench viz. Trespasse Baron and Feme brought in action of Trespasse Quare clausum fregit Trespasse by Baron and Feme for breaking the Close of the Baron for the Battery of the Wife and for Battery of the Feme the Defendant pleaded a License to enter into the Close made by the Baron and not guilty as to the Battery And the Court was moved in Arrest of Iudgment because the Husband and Writ could not ioyn for the weaking of the Close of the Baron the Writ shall abate for all But the Lord chief Iustice and Iustice Dodderidge were of opinion that the Plaintiff should have Iudgment And it seems that the Law is clear accordingly vide 9 E 4. 51. Trespasse by the Husband and Wife for the Battery of them both the Iury found so much for the Battery of the Husband and so much for the Battery of the Wife and so Damages assessed severally because the Wife could not soon with the Husband in an action for the Battery of the Husband for that part the Writ shall abate and for the Battery of the Wife they shall recover for for that they ought or joyn in an action vide 46 E 3. 3. Baron and Feme brought Trespasse for the Battery and Imprisonment of the Wife and the Writ was ad damnum ipsorum and yet good vide 9 H 7. in the case of Rescous and 22 E 4. 4. there is a good diversity when the Writ is falsified by the shewing of the party himself and when it is found by Verdict And Iustice Haughton and Iustice Chamberlain were of opinion that the Writ should abate for it is apparent that as to the Trespasse Quare clausum fregit the Wife had no cause of action But this case being debated at Serjeants Inn in Chancery Lane at the Table the Lord chief Baron was of opinion that Plaintiff should have Iudgment for that part and he held the Writ good in part and Reddenda singula singulie Meâ—enest issint as it seems no more then in the case of 9 E 4. for there the Writ shall avate for part And if an action of forgery of Deeds be brought against two for forging and publishing and found that one forged and the other published the Plaintiff shall have Iudgment Howell versus Auger Trespasse IN an action of Trespasse brought by Noy Howell against Auger for breaking of a house and five acres of Land in Fresham upon Non Culp pleaded the Iury gave a speciall Verdict Devise of a Fee after a Fee Robert Howell seised of the Land in Question and of other Land by his Will in writing devised this Land to Dorothy his Wife for life and devised this Land to Thomas Howell his younger Son to him and his Heirs in Fee under the Condition which shall be afterwards declared And the other Land was also devised to Dorothy for life and to the Plaintiff and his Heirs in Fee under the Condition hereafter limited If Dorothy died before the Legacies paid then he will that they shall be paid by Noy and Thomas his Sons portion-like out of the Houses and Lands given them And if either of my Sons dye before they enter or before the Legacies paid or before either of them enter Then I will that the longer liver shall enjoy both parts to him and his Heirs And if both dye before they enter then his Executors or one of them to pay the Legacies and to take the profits till they be paid and a year after and made Dorothy his Wife and Christopher Roys his Executors and died Dorothy entred the Plaintiff Noy by his Deed In 33 Eliz. in the life of Dorothy released to Thomas all his right c. with Warranty Release of Lands devised before they be vested Thomas by his Will devised the Land for which the action is brought to Agnes his Wife and died in the life of Dorothy and before Legacies paid Dorothy died and Agnes entred and took to Husband Henry Ayleyard who leased to the Defendant upon whom Noy entred and the Defendant re-entred And Si super totam Materiam c. And this Case was well argued at Bar in two Terms and the first question was If this Devise of a Fes after a Limitation be good or not much was said for it and they relyed upon a case which was adjudged in the Kings Bench between Pell and Brown of such a limitable Fee Pell and Brown And many Cases put that this operate as a future Devise Executory as well as one may by his Will Devise that if his Son and Heir dye before he marry or before that he come to the age of
Copyhold to one which is admitted Copyholder extinguisheth the Right of the Copyhold by Deed And if a Copyholder release to the Lord that extinguisheth the Copyhold although it be contrary to the nature of a Release to give a possession It was agreed here that this Copyhold is not extinct but the Lord which is Lessee for years Dominus pro tempore may grant it by Copy de novo Mich. 21 Jac. Aris versus Higgins ARis brought an action upon the case against Higgins for saying these words He is a Theef and hath stol◠my Corn Case Words and made me no satisfaction And it was found for the Plaintiff and afterwards moved in Arrest of Iudgment that these words were not actionable for Verba ambigua in mitiori sensu sunt accipienda And therfore Coke lib 4. fol 19. Thou art a Theef for thou hast stoln Apples out of my Orchard or thou hast robbed my Hop gound the latter words qualifie the generality of the former Also an Innuendo will not make either the person or the matter certain Coke lib 4. fol 10. Barham did burn my Burn Innuendo a Barn with Corn not actionable and that he had not satisfaction that proves that it was for Corn growing for otherwise if it were Felony the party shall not have satisfaction But Iustice Winch was of opinion that the action lay and that the words He is a Theef he hath stoln my Corn are both actionable and not like to Robbing my Orchard or stealing my Apples in my Orchard for Apples in an Orchard are commonly upon the Trees And as to the words Thou hast made me no satisfaction these do not qualifie the former words Thou art a Theef and hast stoln a bundle of Fitches adjudged actionable Iustice Jones was of the same opinion for stealing of his Corn shall be intended of Corn severed for otherwise it is acres of Corn or Corn growing Serjeant Hobart was of opinion that the words shall be intended in mitiori sensu And we all agreed that that which qualifies or extenuates words ought to be full and not ambiguous Rud versus the Bishop of Lincoln Quare Impedit IN a Quare impedit brought by Edward Rud against the Bishop of Lincoln Lord keeper Drury and Stubbin for the Church of Dackworth upon Evidence at Bar these Points were resolved in the Court. Quare Impedit 1. When one usurps upon a Lease for years that this Usurpation gains the Fee and puts the very Patron out of possession And though by the Statute of Westminster 2. cap. 5. he in reversion after the Lease may have a Quare Impedit when the Church is void or may present and if he present and his Clerk be admitted and inducted that then he is remitted yet untill it be recovered or his Clerk be in the Usurper hath the Fee and against him lies the Writ of Right and that descends to his Heirs and his Wife shall be endowed 2. When the King present one by Laps not having any Title of Laps and a recovery is had against him in a Quare Impedit by one which had no Title If this gain the Patronage And it is clear the King had no Title to present and although he which comes in by such Laps is not Incumbent nor gains the Patronage yet he is Incumbent as to all Ecclesiasticall matters to have Offerings Tithes c. for it is only as to the rightfull Patronage no gaining of the Patronage but he may present vide Greens case Coke lib. 6. fol. 29. 3 It was resolved by the Court that when one recover in a Quare Impedit although that no Writ be awarded to the Bishop yet if upon non presentment the Bishop will admit and institute his Clerk and he is Inducted And that is good as wel as a man may enter without a Writ of Habere factas seisinam after recovery so may the Patron which hath recovered in a Quare Impedit present and that being accepted and Institution and Induction pursuing therupon it is good 4. Also whore the Issue was whether the Church was void at the time of the presentment of Palu or not and it appears that the case was that Thomas Rud after the Church was void by the death of Clement Rud and after that one Taxall was presented by Laps and Admitted Instituted and Inducted where the King had not Title the said Thomas Rud having good Title to present made a writing of presentation of the said Paul and after be it then exhibited to the Bishop or no The said Thomas Rud brought a Quare Impedit and recovered and afterwards this Presentation is exhibited to the Bishop and he admit institute and makes a Mandate for Induction which also is afterward done accordingly Now the Issue being whether the Church was void at the time of the Presentation of Pain the time of this Presentation shall now be the time of exhibiting therof after the Judgment And then as to Rud which had recovered against him the Church was then void for whensoever the Bishop had the Presentation exhibited at that time he ought by the Law to admit institute and give a Mandate for Induction the then Church is void But after the Judgment the Bishop ought to accept that and admit and institute Ergo at that time the Church was void and that is to be the time of the Presentation 5. When one having good Title to present and an Incumbent by Usurpation is admitted instituted and inducted and after that the Patron present and the Bishop refuse and after the Patron recover and then he which had this Presentation exhibite it to the Bishop this is now a good Presentation and the Patron cannot revoke or give him a new Presentation but if the Patron before the death of the Incumbent makes Letters of Presentation that is void because he had no Title to present Hil. 20 Jac. Rot. 1942. Pleydell versus Gosmoore Wilts EDmond Pleydell brought an action of Trespasse against Richard Gosmoore Trespasse Where one may fetter an Estray and William G. for the taking and chasing of a Colt and fettering of him with a Continuando as to the fettering The Defendant convey the Mannor of Sharston to Francis Earl of Hertford And that the Earl and all those whose Estates c. had the Estrayes which come within the said Mannor 〈◊〉 that the Tithing-men for the time being seised the Estrayes and proclaimed them at the next Market or Fair c. and kept them untill they be claimed or forfeited And that he was a Tithing-man and seised this Colt as an Estray and because this Colt was so feirce c. that he could not be kept in Pasture he fettered him and kept him in his Pasture within the Mannor and that for the space of two weeks and the Plaintiff having notice claimed him and had him delivered c. The Plaintiff demurred generally Attho said that he had not avorred that he continued feirce
c. but at the time of taking was so To this it was answered That the Count chargeth not the Defendant absolutely with all the time but Diversis diebus vicibus And also he justifie for two weeks which is the same Trespasse Then upon the matter the question is if he which hath Estrayes or Waifes if he seise an Estray qui est ferox whether he may fetter such Estray It was agreed by the Court that when an Estray comes within a Mannor and walk there this is a Trespasse and the party in whose Land the Estray is Damage-feasant may chase him out of his ground Also it was agreed that untill the Lord or his Bayliff or Tithing-man seise the Estray that shall not be said an Estray but when the Lord seise than he hath the Commencement of a property therby and he is chargable against all others for the Trespasse which this Estray doth and if this Estray within the year estray out of the Mannor the Lord may chase back the Estray untill he be seised by another Lord which hath Estrays But if he be seised by another Lord then the first hath lost all his possibility of gaining the property and the other Lord ought to proclaim it de novo It was moved that if a Lord of a Mannor which hath Estrayes and hath seised an Estray suffer that Estray by negligent keeping to stray away and never can be found again the Owner may have an action upon the case of Trover and Conversion against the Lord Quare vide 44 E 14. there the Lord seised an Asse for an Estray he to whom the property did belong came and challenged the Estray the Lord may detain him untill he tender sufficient recompence for the Pasture vide purc 20 H 7. 1. by Vavisor and 39 E 3. 3. That the Owner cannot take an Estray untill he tender recompence likewise the Lord after seisin of the Estray if he took him not Damage-seasant may have Replevin and he ought to make him amends The Lord cannot work the Estray but may keep him in his Stable And if the Sheriff upon a Fieri facias fetter the Colt and after the Defendant redeem him for money he shall not have trespasse vide 6 E 3. 8. it is not alledged that the fettering was to any damage of the Estray vide 22 Ass 56. Entred Pasch 18 Jac. Rot. 650. Treherne versus Cleybrooke Debt IOhn Treherne brought an action of Debt against Cleybrooke and count of a Lease made by John Treherne Grand-father to the Plaintiff of Lands in S. Olives in Surrey and intituled himself by the Will of the Grand-father by which he devised the Lands to the Plaintiff in tail Devise the remainder over to Leonard Vpon Nil debet pleaded the Iury found specially scilicet the Devise of the Reversion in tail the remainder over to A. in tail the remainder of one Moyety of the Land to one Daughter in tail and the other Moyety to another with Proviso that for the raising of a Stock for John Treherne the Grand-child when he come to the age of one and twenty years or if he dies for the raising of a Stock for Leonard in like manner he willed that Edward Griffin and Anne his Wife shall take the profits and shall receive all the rent of the Land devised to John Treherne to their own use untill he come to the age of one and twenty years upon Condition and so as the said Edward Griffin and Anne shall within three months after the death of the Testator become bound to his Overseers in an Obligation with such penalty as the said Overseers shall think fit to pay to the said John or if he dye without Issue to the said Leonard within three months after he come of age such a summ the Condition to be drawn and devised by his Overseers And if Edward Griffin and his Wife refuse then the Overseers should receive the Rent and Profits to their proper use But the Condition appoint not to whom the Overseers shall be bound And made Edward Griffing and William Iremonger his Executors and I. and others Supervisors and died and that within fourteen daies after the death of the Testator the Will was read to the said Overseers And that they did not devise or draw within the time appointed any Obligation nor tendred any within that time and that notice therof was given to the Defendant and that the Rent was demanded and the Reversion claimed by the Plaintiff sed utrum c. Vpon the Argument of Serjeant Harris which argued for the Plaintiff and vouched 21 H. 6. 6. That when one made Executors and also Coadjutors the Coadjutors are not Executors and that it is a Condition precedent vide 14 H 8. 22. Wheelers case 46 E 3. 5. Truels case Coke lib 5. 127. Palmers case 4 E 3. 39. 11 H 4. 18. And because that in this case the said Edward Griffin and his Wife are to have benefit they ought to require them to nominate the summ But because it appears to the Court that this Action is founded upon a Contract in Law therfore it ought to be brought in Surrey as it was agreed in Ungle and Glovers case An 36 Eliz vide Coke lib 3. fol 23. Nota that the Iudgment is speciall for this cause and no costs upon the Statute of 23 H 8. for the Defendant for the Statute saies that upon a Contract made by the Plaintiff the Defendant shall have costs and yet upon this Statute if the Executor be non-suited or Verdict given against him he shall not pay costs Where costs shall not be against Executors by common experience alwaies after the Statute and yet he shall have costs if he recover And in this case the Plaintiff shall have costs if he recover and yet it seems upon this Iudgment the Defendant shall not have costs against him and especially because that they are expresse words in the Statute that the Defendant shall have costs after Non-suit or lawfull tryall against the Plaintiff and here is neither Non-suit nor lawfull tryall vide Statute 4 Jac cap. 3. seems to be full in all cases where the Plaintiff shall have his costs upon Non-suit or when the Verdict passe against him the Defendant shall have costs yet it hath been taken that it shall be intended in actions of Debt upon the Contract of the Plaintiff himself for Executors neither upon Verdict nor upon Non-suit shall pay any costs because that their actions are brought upon Debts or Contracts not made between them and the Defendants vide the Statute of Glocester cap 1. that where a man recover damages there also he shall have costs Hickson versus Hickson HIckson Demandant in Dower against Hickson They are at issue the Tenant offer to be essoined upon the Venire facias and for want of the Adjornment therof by the Demandant Essoin shall not be allowed in Dower the Tenant had procured a Non-suit and yet the
proceed by fiue to enforce him to lay it open yet these Affirmative Customs do not toll the Negative And to prove that the Lord had an Inheritance therin he vouched 14 E 2. Fitz. Grant 92. A Rent granted to one and his Heirs out of the Mannor of Dale which he hold of the Mannor of D. this is an Inheritance And if this shall not be a forfeiture then this Customary Inheritance which the Lord had in the feild-course might be tolled at the will and pleasure of the Copyholder Serjeant Hitcham argued strongly to the contrary First That it is no Inclosure because that all is not inclosed Secondly The forfeiture of a Copyhold is alwaies by some thing done to the Copyhold land it self but this is done as it is supposed to the feild-course of the Lord which is not Copyhold and it is better for the Copyhold and makes the land better and also the Feild-course is therby made better and more beneficiall to the Lord and therfore the Copyhold land is not altered but is meliorated and it is like so the case in Dyer 361. Althams case after no Wast done the Evidence was that a Trench was made in a Meadow by which the Meadow was Meliorated and adjudged no wast which might be given in evidence But he said that in Brooks case at the first comming of Popham to be chief Iustice it was adjudged that if a Copyholder build a new house it is a forfeiture for that altoreth the nature of the thing and put the Lord to more charge So if Tenant for yeare makes a Hay-yard in the land that is wast He said that this Custom is qualified by taking a Fine if he would or by imposing a pain in the Court to enforce the Defendant to lay it open And all the Court were of opinion that this is no forfeiture for the reasons before and that this Feild-course is a thing which commence by agreement and is but a Covenant and not of common right And Forfeitures which are odious in Law shall be taken strickly Trin. 5 Car. Starkey versus Tayler Case STarkey an Atterney of this Court brought an action upon the case against one Mr. Tayler of Lincolns Inn for saying of these words to him Words Thou art a common Barretor and a Judas and a Promoter And it was moved in Arrest of Iudgment that these words maintain not action for the generality and uncertainty that he shall be called a common Barretor And the chief Iustice seemed to be of opinion that those words are not more then if he had said That he was a common Brabler or Quarreller But it was urged by Serjeant Hicham that the action lies and that it is a generall Rule Quod sermo relatur ad personam As in Birchley's Case He is a corrupt man And in Mores Case it was said of an Attorney That he was a cousening Knave And if these words were spoken of a common person he doubted if they were actionable but being spoken of an Attorney action lies And if these words were spoken of Iudge without doubt they were actionable And in this case being spoken of an Attorney who is a Minister of Iustice and who hath the Causes of his Clients in his hands to gain them or to lose them The Statute of Westminster saies the Sheriffs are charged to expell all Barretors out of their Countries And in the Statute of 34 E. 3. is the description of a common Barretor and his punishment who is a stirrer of false and unjust Suits and that he shall be imprisoned during the pleasure of the King bound to his good behaviour and fined And Littleton in his Chapter of Warranties faith they are hired to keep Possessions and therfore an action lies But to say of another man That he is a common Barretor is not actionable unlesse he saith that he is convicted Hil. 3 Car Rot. 1302. Watt versus Maydewell Leicest WIlliam Watt brought an Ejectione firmae against Laurence Maydewell Where acceptance of a new Lease for years makes a surrender of the former upon a Lease made by Robert Rome upon Not guilty and a speciall Verdict found the Case was thus Francis Griffith seised of Land in Fee by Indenture bearing date the fourteen of November and 14 Iac. demised the said Land wherof c. for one and forty years to Robert Rome rendring two shillings Rent to commence from the Annunciation which shall be An 1619. and after the same year by another Indenture bearing date the third of December 15 Iac. to commence from the Annunciation last demised the same Lands for ninety nine years to Dame Frances Perroint who entred and was therof possessed And after that the said Francis Griffith by another Indenture the same year bearing date the fourteen day of November 16 Iac. to commence from the seventeenth of November An. 1619. devise it to the said Robert Rome for one and forty years who accepted it and afterwards entred and being possessed made his Will and appointed Executors and died the Executors administred and made the Lease to the Plaintiff who was possessed untill he was ousted by the Defendant And the only question of this Case was if the acceptance of the second Lease by Robert Rome had determined discharged or extinguished the former Lease And after Argument it was adjudged for the Plaintiff the reason was because that by the Lease made to the Lady Perpoint for ninety nine years and her Entry Francis Griffith had but a Reversion and could not by his Contract made afterwards with Robert Rome give any Interest to Robert Rome This Lease made to Robert Rome viz. his former Lease was good in Interest being to commence at a day to come and is grantable over and may be surrendred or determined by matter in Law before the Commencement therof as if he take a new Lease to commence presently which see in 37 H. 6. 29. 22 E. 4. for it tuures in Contract And in this case it had been without question that the taking of the new Lease had been a surrender of the former if it were not by reason of the Lease for ninety nine years which is for so great a number of years that disables him to contract for one and forty years 37 H. 6. 17. 18. 14 H. 7. 3. Dyer 140. Vide Smith and Stapletons case in Plowden If a man makes a Lease for one and twenty years and after makes a Lease for one and twenty yeares by Paroll that is meerly void but if the second Lease had beene by Deed and hee had procured the former Lease to Attorn he shall have the Reversion vide Ive's Case Coke lib 5. fol 11. there it is adjudged that the acceptance of a Leese for years to Commence at a day to come is a present surrender of a former Lease These Cases were vouched in this Case Baker and Willoughby Serjeant Bakers Case in the Court of Wards with the Lady Willoughby that a
the said Francis was seised in Fee and before the time of the Trespasse supposed viz. 8 Jac in consideration of a Marriage to be between the said Francis his Son and the Plaintiff for her Ioynture made a Feoffment therof to the use of the said Francis and Rachel the Plaintiff and to the Heirs of the said Francis upon the body of the Plaintiff begotten the remainder to the Heirs of Francis in Fee and shewed the marriage and that by force of the Statute of 27 H 8. they were seised ut supra is limited Absque hoc that the aforesaid Francis Tayler the Father of the aforesaid Francis the Son died seised of the Tenements aforesaid with the Appurtenances de nova assignat in his Demesn as of Fee Modo forma prout praedictus defendens superius allegavit hoc paratus est verificare c. unde c. wherupon the Defendant demurred Vide 3 H 6 Brook Traverse 30 H 6 7. Brook Traverse 359. In Trespasse the Defendant plead his Freehold the Plaintiff plead the dying seised of his Father and that he is Heir and entred and that the Defendant disseised him the Defendant traversed the Disseisin and not the dying seised of his Father and good vide the said Book of 30 H 6. 7. by Prisot if I in Assise plead that my Father died seised in Fee that I entred as Son and Heir to him and was seised untill by R. disseised who enfeoffed the Plaintiff upon whom I entred here the Disseisin is not traversable but the dying seised vide 33 H 6. 59. Wangford put this case In Assise if the Defendant plead that his Father was seised and died seised and give colour to the Plaintiff the Plaintiff ought to traverse the dying seised and not the possession of the Father which is the cause of the dying seised Vide 30 H. 6. fol 4. Entry in nature of an Assise the Defendant plead that W. was seised in Fee and enfeoffed him and give colour the Plaintiff replies that W. was seised in jure Uxoris and that he had Issue and his Wife died and he was Tenant by the Curtesie and made a Feoffment sans ceo that W. was seised modo forma and Issue taken and there it is said that the Issue is well taken This case was adjudged for the Plaintiff because that no dying seised is pleaded so that it might be traversed but with a Sic scisitus obijt Also the matter only traversable here is the seisin in Fee modo forma for by the Replication Seisin joyntly with the Plaintiff and to the Heirs of the body of the said Francis with a Fee-simple in him is confessed and that is good with the Traverse Memorand That this Case was moved by Serjeant Hitcham Trin. 10 Car. And Serjeant Hedley moved for the Defendant and vouched 5 H 7. 7. and the Record was read and all the Court agreed that it was a good Traverse And that Iudgment should be given for the Plaintiff Pasch 10 Car. Dawe versus Palmer Case JOhn Dawe Plaintiff against William Palmer in an action upon the Case and count that wheras he was a Fuller and had used the Trade of Falling and therby acquired his livelyhood and was of good Credit Words c. The Defendant said of him Trust him not for he owes me a hundred pound and is not worth one Groat And at another day he said He is a Bankrupt Rogue And upon Not guilty pleaded the Iurors found for the Plaintiff and gave entire Damages And it was moved in Arrest of Iudgment that the first words were not actionable and then the Iury having given entire Damages the Plaintiff should not have Iudgment for any part vide Osbornes case Coke lib 10. But in this case after many debates it was resolved by the Court that the Plaintiff should have Iudgment For the first words are actionable at Common Law before the Statute Trust him not he is not worth one Groat Go not to buy of I.S. a Merchant for he will deceive you Of an Inne-keeper Go not to such an Inne for he is so poor that you can have no good entertainment Of an Atturney Use him not for â—e will cousen you All these words are actionable He will be a Bankrupt within seven daies And for the other words That he is a Bankrupt Rogue that is resolved Coke lib. 4. to be actionable And it was a Case Pasch 10 Car. in a Writ of Error brought in the Exchequer Chamber upon Iudgment given in the Kings Bench between Dunkin and Laycroft Dunkin and Laycroft for words spoken of a Merchant who had been at Hamborow in partibus transmarinis and there hâ—d used the Trade of a Merchant and Factor Thou innuendo the Plaintiff camest over from Hamborow a broken Merchant And adjudged actionable and so affirmed in the Exchequer Chamber And upon all these Authorities the Court gave Iudgment for the Plaintiff Mich. 10 Car. Deanes Case DEane being robbed in an Hundred in Kent brought an action upon the Statute of Hue and Cry and a speciall Verdict being found tâ—â— Dourt intended was If one be assaulted to be robbed in one Hundred Hue and Cry and he escape and flye into another Hundred and the Theeves instantly pursue him rob him there if the Hund. in which he was robbed should be solely charged And the opinion of the Court was that it should but upon reading the Record this appeared not to be the Case And the Court was informed that the Sheriffs had taken the Goods of one in execution who was not inhabiting within the Hundred at the time of the Robbery committed but came afterwards And the Court was of opinion that he was not chargable Mich. 10 Car. Knight versus Copping RObert Knight brought an action upon the case against Valentine Copping one of the Attorneys of this Court count Case That wheras one Edw. Loft had brought an action of debt for 30 l. against him And therupon such processe was that a non pros was entred costs of 30 s. assessed for the now Plaintiff An action of the case for â— entring Judgment after non pros the now Defendant being Attorney for the said Ed. Loft having notice therof unduly and maliciously procured a judgment to be entred for the said Ed. Loft against the now Plaintiff sued execution against him wherby he was taken and imprisoned untill he was delivered by a writ of Supersedeas The Defendant Protestando that there was no such Iudgment for the said Edward Loft against the said now Plaintiff nor that he was taken in Execution therupon for plea saith that there is not any Record of the said Non pros The Plaintiff replies that at the time of the said Iudgment entred for the said Edward Loft And when the now Plaintiff was taken in Execution and imprisoned therupon the said Iudgment of Non pros against the said Edw. L. and
the Lease is not a surrender within the Act of 32 H 8. 2. Another reason because that the Free-hold which the Husband had in the right of his Wife could not be given by this bare assent But if the Lease had been made de novo to the Husband and the Wife then it had been questionable for the Estate passe by Implication viz. by a surrender in Law by acceptance of a new Lease as in the eighth Report of the Lord Coke S. Savors Case but there no Estate of the Husband passe for by the inter-marriage he was in of the Freehold with his Wife in the right of his Wife and that he gives not by assent vide 7 H. 7.14 vide 41 E 3. fol. 19. 3. Another reason was as this issue is joyned it is found against the Defendants for it shall be therby taken and intended of an actuall surrender made by the Husband and Wife and not of such a surrender which is operated by a subsequent act in Iudgment of Law and the reason therof is because that the surrender of the Estate and the cancelling of the Letters Patents are pleaded to be done at Westminster 2 Febr and the Lease 3. Febr so that this Issue is taken upon an actuall surrender And by Warburton if issue be joyned upon the Manumission of a Villain that is not maintained by giving in evidence that the Lord made to him an Obligation but by the making of him free by Charter of Manumission vide the Case directly 25 H 8. Brook generall Issue 82. vid Dyer 284. Croucheads Case Memorand That in this case the Jury of Middlesex found the Damages and the value of the Wast in the County of Dorcetshire vide Coke liv 6. fol. 47. Dowdales Case Mich. 15 Jac. Rot. 1634. Gibbs versus Davie EDward Gibbs brought an action upon the Case against Jenkin Davie for words spoken in the Welsh Tongue and declared that the conference was had by Baron Snigg with the Defendant concerning the selonious stealing of three Heisers and the Defendant is supposed to answer to the question in Welsh whether Thomas Jackson stole them If he had them Case Welsh words I should have had them again but Edw. Gibbs stole them And upon Not guilty pleaded it was found for the Plaintiff at Bristoll And it was moved this Term in Arrest of Iudgment that the words in Welsh did not signifie stealing but carrying away upon ones back And it appeared upon examination of one Mr. Gunter upon Oath that it is properly the word for carrying though that there in the intendment of the parties it might be taken for stealing it being joyned with other precedent circumstances yet it is not actionable for it shall be taken in the most favourable construction and best sense as if one had said That such a one had the Pox and forbid one to use his company it shall not be intended of the French Pox and no Action lies And Iudgment was given for the Defendant yet it was averred in the Count that the words were spoken in the hearing of them which understood the Welsh Language Micih 14 Jac. Rot. 953. Leigh versus Paine Oxon. MAtthew Leigh brought an action of Debt upon an Obligation against Matthew Paine Debt which was with condition for the performance of an Arbitrement which was of all Actions Quarrels c. depending between them The Arbitrators award that the Defendant should pay to the Plaintiff such a summ Arbitrement of all Action untill the day of the Awaâ—â— c. for content and in full satisfaction of all Actions Quarrels c. untill the day of the date of the Arbitrement And upon Demurrer by the Defendant it was debated whether this was a good Arbitrement it being that the Arbitrator had exceeded his Authority in giving satisfaction for trespasse after the submission that is untill the date of the Arbitrement and it seemed to the Court that it is a good Arbitrement and that it appears not to the Court that there were any Trespasses or Suits after the submission and that shall not be intended untill it be shewn by the other part as in the case of Baspool Co. lib. 8. fol. 98. where submission was of all controversies so that the Award be made of the Premisses c. there the Arbitrators made an Award of divers particulars and the Award was good and he that will avoid it must shew that there were other controversies that he gave notice of them to the Arbitrators for they shal not be bound to arbitrate of more then they have notice of Dy 242.19 E. 4.1 vide Summons case Coke lib. 5 fol 77 That an Award ought to be reasonable and to be done between the same parties And therfore the Arbitrement that the Husband and Wife shall levy a Fine where the submission was by the Husband only is void but quaere if it be not good as to the Husband and vide in James Osborns case Coke lib 10. fol 131. There the case of More and Bedle is bouthed and is adjudged that where it is awarded that a certain summ shall be paid and for the payment thereof a stranger shall be bound it is a good Award though as to the giving of security by a stranger it is void and there it is said if satisfaction be to be given for many things of which part is out of the Award yet it is good for them which are submitted unto vide 42 43 Eliz Newby and Sav Newby and Sav. An Award to make a release to the date of the Arbitrement and good if it does not appear that there was other matter A submission of all matters done till the fourth of September the Award was of a Release of all matters untill the third of September and good Browns case And this case was vouched to be between Barnes and Grenewell Trin 43 Eliz Rot 947. vide a case between Hilton and Brown Trin 5 Jacobi Rot 1618. an Arbitrement was made generall in satisfaction of all Controversies Indefinitely without any limitation And upon Argument upon Demurrer it was adjudged good and in this case the Arbitrement will not discharge any action which was not submitted unto and then it is but Surplusage which shall not avoyd the Award though the Plaintiff hath mine recompence by the Arbitrators In respect that the Defendant shall be discharged of trespasses untill the making of the Arbitrement And Iudgment was giuen for the Plaintiff Mich. 11 Jac. Rot. 318. Agars versus Lisle Case THomas Agar brought an action upon the Case against Lisle for studing and converting of a Cow at the Castle of York the Defendant pleaded in Bar that the Bishop of Durham was seised of the Town of Darton in the County of Durham and prescribe to have a Faire there and Toll and for not payment thereof c. the Cow was taken by the Defendant Trover and Conversion is justified without confessing the Conversion
as Servant to the Bishop of Durham Absque hoc that he was guilty at the Castle of York or any where else c. And this Case was long depending and the first point was if the Defendant had confessed any conversion for that is the ground of the action and ought to be traversed or else confessed and avoided It was agreed that the Conversion is the ground of the Action Brook 1 Mar. Trespass 121. and the Inducement ought to be such as contain sufficient matter with the Trespasse vide 9 E. 4 5. 19 H 6.30.22 Then it was agreed H. 6. 35. 8. that when one takes a Distresse and such an action is brought that is no plea for that is not any conversion vide 27 H. 8.22 Coke lib. 10. fol 46 47. Request and refusall to deliver is good evidence to prove conversion but if it be found specially it shall not be adjudged Conversion and Iudgment was given for the Plaintiff because the Defendant did not claim any property and did not answer to the point of the Action for a Distresse is no Conversion Hil. 15 Jac. Coble versus Allen. Norf. Trespasse COble brought an action of Trespasse against Allen for breaking his Close at Barningham and by the new Assignment divers parcels were assigned the Defendant as to part pleads that he was seised of an House and thirty acres of Land in Colby and prescribe to have a way over them to his Common in Barningham Prescription for a Way and no place to which c. Issue joyned upon the Prescription and for the other parcels prescribe that he and all those whose Estate he hath in the said house in Colby used to have for themselves and their Families one way for Pack-horses over the said other parcels of Land in Barningham unto the Kings high way leading to the City of Norwich And Issue was joyned upon these two Prescriptions and found for the Plaintiff But it was moved in Arrest of Iudgment that the Venue was from Barningham and Colby and that in the Plea there is not mention of any place where the Common lies and therefore there is not any tryall but it was adjudged that the tryall was good for though that the proper use of a way is to some end and that ought to be shewn yet if it be only that he had a way over the Closes of the new Assignment and no place or end therof is pleaded for what cause or to what other place and Issue is taken upon the Prescription and found the Prescription is good And another reason was there by Implication it is indifferent whether the way lies in B. or in another Town and by intendment rather it may be taken to lye in B. and then if by one intendment the tryall may be good it shall so be intended But when it appears that the tryall shall be in three Towns and the Ven fac is but in two this is not aided for it is a Mis-triall and there must be a Venire facias de novo but in this case no new Venice can be awarded and then it is but a Jeofaile for not pleading in which Town the way lies and then it is aloâ—â— and also unto the Kings high way may be taken that this Kings high way is contigue adjacent to these Closes where the way is by Prescription And for these reasons and causes Iudgment given for the Plaintiff Harding versus Bodman RObert Harding Plaintiff against Bodman Defendant Case in an action upon the Case recites that wheras the Plaintiff brought an action upon the Case against one Lenning for calling of him c. the Defendant upon the tryall being produced for the Defendant as a Witnesse gave evidence upon his Oath to the Iury Action upon the Case against one foâ—giving evidence that the Plaintiff was a common lyar and so recorded in the Star Chamber by reason of which Evidence though the Iury found for the Plaintiff yet by reason hereof they gave but small Damages to the Plaintiff And upon not guilty pleaded it was found for the Plaintiff and upon motion in Arrest of Iudgment it was adjudged that this is a new invention and that no action lies for it First because that it is impossible to be known whether the Iury gave greater or lesse Damages for that or not Also by this means every man which is produced as a Witnesse by one way or other may be subject to an action upon the Case and also by any thing which appears to the Court the Evidence was true for it was not averred that Revera that the Plaintiff was not a common lyar that he was not recorded for a common lyar in the Star Chamber And for these reasons the Plaintiff Nil capiat per breve c. Trin. 15 Jac. Rot. 1968. Speake versus Richards South HUgh Speake brought an action of Debt against Edward Richards Debt for 523 l 17 s 8 d and declare that Anthony Hall and Henry Paramour 22. June 13 Jac. became obliged to the Plaintiff by Recognizance in the Chancery in 2000 l and that they did not pay it wherupon the Plaintiff had two Sci. fac.'s to the Sheriff of Middlesex Debt for money returned levied by the Sheriff who returned Nihil wherupon Iudgment for the Plaintiff and a Levari facias awarded to the Sheriff of Southampton returnable 15 Mich. which Writ was delivered to the Defendant being then Sheriff to be executed The Defendant before the Return levied by vertue of the said Writ the said 523 l 17 s 8 d of the Lands and Chattels of the said Henry Paramour parcell of the said Debt and at 15 Mich. returned that he had levied the said 523 l 17 â— 8 d parcell c. which summ he had ready at the day to deliver to the Plaintiff in part of satisfaction c. And that the Defendant although often required therto refused to pay the said 523 l 17 s 8 d by cause wherof this action accrued nor brought it into Chancery and to have the parties c. The Defendant as to three hundred and eight pounds part therof pleaded Nil debet to two hundred and fifteen pounds seventeen shillings eight pence residue therof Actio non For he said that after the Writ directed and before the return viz. 31 Augusti 14 Jacobi the Defendant at Westminster paid it to the Plaintiff upon the receit wherof the same day the Plaintiff gave an Acquittance for the same which he pleads and therby acquitted and discharged the Defendant and demands Iudgment if against his own Deed of acquittance he shall be received to demand the said money wherupon the Plaintiff demurred And it was argued by Serjeant Richardson for the Plaintiff and by John Moore for the Defendant An exception was taken that he could not plead Nil debet because that it is a Debt upon Record for he is charged by the return He is not estoppled to plead payment
before the return because it is another Action and the Sheriff might have paid it to the Plaintiff though he return that he had the money ready to be delivered to him for if he had after that paid it to the Plaintiff that was good satisfaction and he might as well pay it after he had levied it and before the return as he might pay it after the return and then Nil debet is a good Plea But it was objected that by the return 15 Mich. that he had the money ready and that after the acquittance his return should conclude him And it was said that it would not for it is in another Action and stands therwith 22 E 4.38 One vouched as Heir may be bound to Warranty by his Father and if he bring an Assise De morte Antecestoris and the Tenant plead Bastardy it is no Estoppell that the Defendant vouched him as Heir before The Acquittance or Release is good before the return and not like unto Hoes Case of Bail Coke lib 5.71 or 5 Eliz Dyer 217. Release of Actions and Suits will not release a Covenant before it be broken Object That the Acquittance or Release is pleaded only by recitall Res To this it was answered that he had paid the two hundred and fifty pound seventeen shillings eight peace which the Plaintiff had accepted and the Plaintiff by Demurrer had confessed the Deed and all that is contained therin then it appears that he is satisfied and that the release in matter as it is recited shall be an Estoppell vide 46 Eliz. 13. But it seemed that it is no Estoppell by the reciting in the Release that which is in possession but that afterward he might well say that he was not in possession at the time of the Release and all the Court agreed that the Acquittance or Release and receit of the money is a good Bar as to two hundred and fifteen pounds seventeen shillings eight pence and so it was adjudged But whether an Action of Debt lies against the Sheriff upon this return is questionable yet that it is not any Contract Account or Loane upon which three properly an Action of Debt lies as it is said M. 18. E. 4.23 and 41. E. 3.10 and 42 E. 3.9 When money is delivered to be delivered over that no Debt lies if it be not delivered over but Account vide 34 H. 6. 36. a. 9 E 4.50 And the Court inclined that in this Case Debt lies for it is a generall Contract In Dowses Case the Sheriff levy part and do not return it but the party pay it Debt lies against the Sheriff And if money be delivered to buy Land if he buy it not Debt lies or Account Mich. 15 Jac. Rot. 636. Stone versus Roberts STone brought an Action upon the Case against Roberts for these words The Plaintiff is a Witty and an Inchaunter Case and hath bewitched the Children of one Strong And Iudgment for the Plaintiff Words For though Witch is a word of malice and familiarly used to old poor women and therfore no Action lies yet here it is coupled with a Deed by which the Plaintiff is drawn in danger of his life by the Statute of 1 Jac. Hil. 15 Jac. Rot. 710. Crawley versus Kingswell RIchard Crawley Plaintiff in Roplevin against Richard Kingswell Replevin for taking of one Cow at C. the Defendant makes Conuzance for ten pounds Rent-service come Bayliff to his Father the Plaintiff confesse the Tenure but alledge that at our Lady day which was one day of payment he was upon parcell of the Land Rent tendered at the day and there was ready and offered to pay it and remained there till after the setting of the Sun The Defendant replyed and protestando that he made no such tender for plea saith that after that and before the Distresse viz. such a day he at this Close demanded the Rent and none came there to tender or pay it for which he did distrain and praies a return c. and avers that the Plaintiff nor any other neither at the time of the distresse nor at any time after offered to pay the Rent wherupon the Plaintiff demurred and it being argued by Hendon and John Moore it was adjudged by the whole Court that the Defendant shall have a return And a diversity was taken between this and Homage where one makes a tender to the party and he refuse there he cannot distrain because it is a personall thing which cannot be performed as payment of a Rent may by another hand vide Litt. fol 35.21 E 4.17.7 E 4.4.20 H. 6.13 Also it was agreed that the tender there by the Tenant at the day is not materiall but if he had tendred it when the Distresse was taken the taking should be tortious 30 Ass 38. vide 22 H 6.36 37.21 E 4. b. 45 E. 3.9 vide Litt. 7. fol 28. Demand necessary only for a Penalty 26 Eliz. Certain Cases vouched in an Action for words GIttings Plaintiff in the Exchequer against Redserve Gittings is a cousening Knave and so I have proved him before my Lord Mayor for selling me a Saphire for a Diamond the Action does not lye And by Manwood if A. saies of B. Thou art a cousening Knave and hast cousened me of five hundred pounds no Action lies which the Court agreed Banco Regis 30 Eliz. George versus Whitlock HE is a cousening Knave and consened a poor man of a hundred pounds and all the Georges are cousening Knaves no action lies Hil. 30 Eliz B. R. Walcot Plaintiff versus Hind HE is a cousening Knave and hath cousened me of forty pounds adjudged no action lies And upon Error brought in the Exchequer Iudgment was affirmed and it is said that our Law takes no notice what a Cousener is Trin. 37 Eliz. Brookes Case HE is a false Knave and keeps a false Debt Book for he chargeth me with the receit of one peece of Velvet which is false not actionable Mich. 37 and 38 Eliz. Charter versus Hunter THou art a Pilfring Merchant and hast Pilfred away my Goods from my Wife and my Children not actionable A Butcher and his Wife brought an action upon the Case against B. and his Wife and shew that the Plaintiff used the Trade of a Butcher and that his Wife in his absence sold and delivered flesh and the words were that the Wife of the Plaintiff is a cousening woman and hath cousened one of her Neighbours of four pounds And it was alledged over that she the Defendant would bring good proof of it and adjudged that an action lies not Trin. 13 Jac. Rot. 650. Heard versus Baskerfield Brownlâ—wâ— Devon WIlliam Heard Plaintiff Replevin against Richard Baskerfield in Replevin for taking two Cowes at Brood the Defendant makes Conuzance as Bayliff to John Dinham Esquire and shows that Walter de la Therne was seised in Fee of twenty acres of Land wherof c. And by his Deed shewn in
without Custom nor the Lord cannot commit during the Minority of an Infant Copyholder without Custom Hil. 15 Jac. Rot. 906. Smith versus Stafford Brownlow Suff. ANdrew Smith and Anne his Wife Case against Richard Stafford Executor of Jeremy Stafford in an Action upon the Case the Plaintiff counts that wheras there was Communication had of a Marriage between the said Anne when she was sole and the said Jeremy Where inter-marriage release a promise made by the Husband to the Wife before marriage the said Jeremy in consideration that the said Anne would take him to her husband promised that if after the Marriage the said Jeremy dyed living the said Anne he would leave the said Anne worth a hundred pounds and aver that she did marry the said Jeremy which died and did not leave her worth a hundred pounds And upon Non assumpsit the Iury found for the Plaintiff and in Arrest of Iudgment it was alledged that this intermarriage had extinguisht the action vide 11 H 7. 4 21 H. 7. 30. Coke 8. 136. there in Sir John Needhams case many cases are put vide Hoes case that a Release do not discharge Bail before Iudgment for it is contingent vide one Iudgment Hil 6. Jac. in the Kings Bench Rot 132. Thomas Belcher and Elizabeth his Wife Belcher and Hudson against Edmond Hudson an Action upon the case in consideration that the said Elizabeth at his request would take one Thomas Mason his familiar Friend to her Husband he assumed and promised that if the said Elizabeth survived the said Mason that he would pay yearly to her forty shillings for her maintenance and shews that therupon she did take the said Mason to her Husband and survived him and then married with the Plaintiff the Defendant pleads a Release from Mason of all Actions Demands c. and it was adjudged no sufficient release But Lord Hobart said that if he had released all promises that would have discharged the Defendant vide 4 Eliz Release of all Actions Suits Quarrels c. doth not release a Covenant before it be broken but otherwise of a release of all Covenants as it appears in Dyer 57. though the principall case was a release of all Covenants untill such a day and Covenants were broken before and not discharged for it being broken before there was no Covenant as to that Vide Lampets case Coke lib 10. 51. the reason of the release in Hoes case was because that it was contingent and uncertain and 17 Eliz a Lease to the Husband and Wife for life the Remainder to the Survivor of them for one and twenty years the Baron grant it over and survive yet it is void because it was contingent And the Lord Hobart said that the promise was released by the inter-marriage and so shall be in the case of an Obligation for Fortior est dispositio legis quam hominis and he held that strongly to be Law but Iustice Winch and Iustice Hutton held the contrary and that the Law will not work a release contrary to the intent of the parties and that the marriage which is the cause do not destroy that which it self creates Trin. 6 Jac. Jurden versus Stone Glocest EIectment upon a Lease made by Alice Remington of a Copyhold in South Corny Walter B. Copyholder in Fee married the said Alice And there was a Custom in the Mannor that the Wife shall have the Copyhold as of Franck-banck during her Widowhood Where a woman may enter in and bring an action tâ—â— beâ—â—â— Franck bank before admittance Si tam diu casta viveret and had used to challenge it and the Lord granted it as appears by divers admittances of women and this Wife after the death of her Husband came into Court and challenged her right of Franck-bank and prayed to be admitted and that the Steward refused and she made a Lease for one year to the Plaintiff and if he might bring this action by reason the woman was not admitted for it was agreed that no Fine was due to the Lord was the question And upon the Evidence it was resolved by the Court that this Estate ariseth out of the Estate of the Husband And as Lord Hobart said it budded forth of the first Estate and it seemed that where Tenant for life is admitted that shal be the admittance of him in remainder Also if the Free-hold of the Copyhold be granted over and the Husband dies there there cannot be any admittance and yet she may enter and in this case if any admittance had been necessary she had done all that she could do and that amounts to an admittance in Law to an Estate created by the Custom and by the act of God and Law A Tenant alieu and the Feoffee tender the services and gives notice the Lord refuse this is sufficient and the Lord shall be compelled to avow upon him Continuall claim amounts to an entry Pasch 16 Jac. Rot. 444. Blands Case Case GEorge Bland brought an Action upon the Case against A. B. the Defendant having some communication with one Eagle said that he was a troublesome fellow and he doubted not but to see him indicted at the next Assises for Barretry or Sheep-stealing as George Bland was Words for George Bland was indicted the last Assises for stealing of Sheep and it was not averred that he was not indicted but that he was of good fame It was moved in Arrest of Iudgment that it is not actionable and so was the opinion of the Court for it is not a direct affirmative vide the case of Steward against Bishop before fol. 1. And if one saies I suspect you for stealing my Horse And Iudgment was given for the Defendant Trin. 16 Jac. Darcy versus Askwith Brownlow Ebor. JOhn Lord Darcy of Ashton brought an action of Wast against Robert Askwith now Knight and John Marshall Wast and assigne the wast in Woods viz. In cutting down and selling two Oakes foure Ashes in a Close called Tisley Close two Okes in Parsons croft one Ash in Pinder croft and sixty one Oakes in Preston Lands Wast in cutting of wood to make Cole mines and in divers other Closes in Swillington and Preston The Defendant plead a Lease of the Mannor of Swillington to him for years and also of the Mines and justifie the shrowding of the Trees to make Punchons Poles and Stakes and other Vtensils in and about certain Pits called Cole-mines in one of the Closes without which the Defendants could noâ— dig and take Coles out of the said Pits and aver imployment about of the said Cole-mines justifie the cutting of other trees for the making of Instruments for the extracting of the water out of the said Pits and that without which they could not dig any Coles and they were necessary for the digging of Coles and for supporting the Pits and aver the Imployment And therupon the Plaintiff demurred And we all agreed
Plaintiff to have execution against the said Thomas Elme and so was aiding and assisting unto the said Thomas Elme Wherupon the Defendant demurred and it was adjudged by the Court that this prosecution of a Writ of Error to discharge himself of an erroneous Iudgment is no breach of the Condition no more then if the Plaintiff had released and he had brought an Audita Querela And it shall be intended in this case of a Suit to be solely commenced by the said Thomas Elme and if he will restrain him that he joyn not in a Writ of Error it ought to be precisely contained in the Condition and shall not be taken by a large Exposition to the forfeiture of an Obligation by a generall and ambiguous sentence It was urged that the Defendants had power to have severall Writs of Error 11 H 6. 9. But the Court resolved that being the Costs were joynt they ought to joyn vide Coke lib 6. fol 25. but the release of one will not bar the other vide 34 H 6. 42. 35 H 6. 10. that this Suit is in discharge of the Defendant and not to charge the Plaintiff and therfore the Condition is not broken vide Dyer 253. A Condition to suffer a Lessee quietly to enjoy the word suffer guide all the sentence in favour of the Obligor and Iudgment cannot be reversed in part and stand for the other part or be reversed against one and stand in force against the other except in speciall cases As where Infant Tenant for life and he in remainder of full age levy a Fine that shall be reversed as to the Infant and stand for the remainder for it is no other then as a Conveyance Mich. 18 Jac. Powell versus Ward AN action of the case was brought for these words Case Words I have matter enough against thee for Iohn Halden hath found forgery against thee and can prove it And after Verdict it was resolved by the Court that the words are too generall will not maintain an Action no more then if one said that another had forget a Warrant for it might be a Warrant for a Buck and this is not right Affirmative Sherley versus Underhill A Quare impedit brought by George Sherley Baronet Quare Impedit Error in Quare Impedit against Underhill and Bursey for presenting to the Vicaridge of the Church of Nether Elington and count of a Nomination as appendent to the Mannor of Elington and Issue therupon for they pretend it to be appendent to the Rectory of Elington And it was found for the Plaintiff at Warwick Assises and Iudgment there for him and a Writ to the Bishop and therupon a Writ of Error was brought in the Kings Bench and it was to remove a Record which was between George Sherley Knight and Baronet and the truth was that Sir George is not neither was named Knight by all the Record And therfore the opinion of the Court was that the word Knight is part of the name and so no Record was removed And it is so materiall that the addition where there is none or the omission where it is Knight makes it no such Record and they perceiving it discontinued their Writ Memorand That though Iudgment was given at the Assises the Writ of Error was directed to the Lord Hobart and the Record is demurrant in the Court of Common Berich And now it was moved that the Iudgment might be amended for it was Quod recuperet presentationem suam ad Ecclesiam praedictam And the value sound of the Church aforesaid And it should be Quod recuperet praesentationem ad vicariam Ecclesiae valorem vicariae Ecclesiae And it was urged that it was not the mis-prision of the Clerk but of the Court and Iudgment erroneous in point of Law is not amendable for if it be Quod capiatur where it should be Quod sit in miserecordia it is not amendable But it was resolved and so awarded by the Court that it should be amended And the reason is because the Verdict is generall and they found for the Plaintiff and the Iudgment ought to agree with the Verdict But it is solely mis-prise by the default of the Clerk for the Record precedent is in every part and in the Issue and Verdict Vicariam Ecclesiae And by the Statute 8 H. 6. cap. 15. that is amendable for the mis-prison of the Clerk in the Record shall be amended though it be in the Iudgment Wilde and Woolfe Mich. 33. 3â— Eliz 230. vide Dyer 258. Also Mich. 33. 34 Eliz Rot 230. between Wilde and John Woolfe Ideo considerat est quod praedictus Thomas Wild recuperet versus praedictum Thomas Woolfe where it should be John and Error was brought and it was amended Stepney and Woolfe 42 Eliz Rot 693. An action of the case by Stepney against John Morgan Woolfe Id. consid quod recuperet versus praedictum Morgan Woolfe and there was no such Defendant but John Morgan Woolfe and it was amended upon Error brought in the Exchequer Chamber And vide Coke lib 8. fol. 164. Blackamores case more cases upon this learning where the mis-prison of the Clerk in the entry of the Iudgment of a thing which is apparent and not of necessity shall be amended as in Mis-prision of the summ of Arrerages before and pending the Writ of Annuity shall be amended vide 9 Eliz Dyer 258. Mich. 18 Jac. Sir Thomas Wentworths Case Replevin SIr Thomas Wentworth brought Replevin the Defendant avowed for a Rent granted Demand of Rent with a Nomine poenae after Issue joyned upon other matter and a Nomine poenae and shews not any Demand of the Nomine poenae But the Issue was tryed and found upon other matter viz. Non concessit And now it was moved in Arrest of Iudgment that he avowed for a Nomine poenae and did not alledge any demand therof yet Iudgment was given for the Avowant For it is matter confessed and the Action is a request viz. the Avowry for he is there the Actor And it is but a Circumstance collaterall to the right And in Actions upon the Case founded upon a promise after request a Licet saepius requisit shall be a sufficient Allegation of a request Davies Case Statute-Merchant without day of payment ONe Davies acknowledged a Statute-Merchant at Glocester in three hundred pounds and the Statute did not limit any day of payment and yet an Extent was sued And upon motion by Serjeant Harris a Supersedeas was awarded for that is no Statute for they had not pursued the Authority given by the Statute For the Statute of Acton Buanell 11 E. 1. saies if the Debt be not paid at the day And though Debt upon an Obligation is payable presently if the day be not expressed yet there the Statute appoint a day certain Pasch 15 Jac. Rot. 1714. Cartwright versus Underhill Trover and Conversion AN action of Trover and
Conversion was brought by Abraham Cartwright against Clement Underhill And upon Not guilty pleaded there was found a speciall Verdict to this effect Bankrupt Francis Bayle being a Merchant had made a fraudulent Deed to the Defendant of the Goods contained in the Count but afterwards he went abroad to Church to the Exchange and did Trade and Commerce And yet afterwards it is contained in the Indenture of Sale by the Commissioners to the Plaintiff that he had made this fraudulent Deed and that afterwards he had traded and served the Exchange untill a day after at which day he wholly absented himself And upon this speciall Verdict the Defendant had Judgment For every Deed to defraud other Creditors but those to whom such Deed is made is not sufficient to make one to be a Bankrupt But if he make any Deed after he begins to be a Bankrupt it shall not bind But upon the Statute of 1 Jacobi which makes him a Bankrupt which make fraudulent Deeds it ought not to be as this case was viz. so long before he became a Banrupt And there were many more imperfections in the speciall Verdict Hill 18. Jac. The Earl of Clanrickards Case THe Earl of Clanrikard and Frances his Wife Writ of Right brought a Writ of Right against the Earl of Leicester Essoin upon the return of an alias Summons And upon the Summons being returned but no return of proclamation made at the Church of the Parish where the Land lies upon the Lords day Post praedicationem sive Divinum Servitium there was an Essoin cast and that was adjourned in the Essoin Roll And the Demandauts perceiving the return to be insufficient they sue an alias Summons which having great returnes as all the Writs issuing out of this Court in a Writ of Right or other reall actions ought to have was returnable Oct Hil And the Tenant cast an Essoin upon the alias Summons And it was moved at the day of Essoin and now also at the first day of the Term by Serjeant Harris that an Essoin did not lye for he had an Essoin before And by the Statute de essonii calumniand 1â— E 2. Non faciant quia alias se essoviant And the Statute 31 Eliz cap 3. which gives the Proclamations hath prouided that no Grand Cape shall be awarded upon this default but only an alias Summons so that the Writ is good and stands and therfore he shall not be otherwise essoined But it seemed to the Court to be otherwise here for the first Essoin is as Nul and therfore vide Dyer 252. that when the Sheriff return tarde in a Formedon and the Tenant is essoined and that is adjourned it is of no effect but he shall be essoined upon the other Writ of alias c. vide 24 E. 3. Br Essoin 24. accord also vide 21 H. 6. That upon the resummons after the death of the King the Tenant shall be Essoined and yet the first Writ and all is revived And in this case though the party may appear to the first Writ â—ne note besoigne de ject un essoign for the nature of that is to save a default so that no Grand Cape shall be awarded and there no Grand Cape ought so be avwarded and therfore the Essoin before not avoidable Hil. 18 Jac. Rot. 739. Bridgeland versus Post Dower Counter-plea to the View BRidgeland against Post and his Wife in a Writ of Dower the Tenants demand the View and the Demandant counter-pleads the View Quod le tenant n'ad entry nisi per le Baron And therupon the Tenant demur And it was adjudged a good Counter-plea and the Tenant ousted of his View Accord 9 E. 4. fol 6. vide 2 H 4. 24. Pasch 19 Jac. King versus Bowen Case Words KIng brought an action of the case against Bowen a Minister for saying Thou art a false forsworn Knave and didst take a false Oath against me at a Commission at Ecclesall innuendo a Commission sued out of the high Commission the Defendant justifie and after issue tryed and found for the Plaintiff it was moved in Arrest of Iudgment that these words were not actionable for it doth not appear in the Count what Commission nor out of what Court nor what matter he did depose but generally that he had taken a false Oath at a Commission The former words forsworn Knave will not maintain an action otherwise of Perjuted Knave for that shall be intended in a legall sence and no Innuendo will supply matter which give not cause of action nor the Iustification But the words ought to contain scandall in themselves without any supplement An action lies for saying one had forsworn himself in a Court Baron and to say he had forsworn himself in the Common place but to say that one hath forsworn himself at the Bar innuendo the Bar of the Common place will not maintain an action Querens nil capiat per breve Pasch 19 Jac. Tippin versus King Wast SIr George Tippin Plaintiff in an action of Wast against King and alledge Wast in severall Closes Sparsim Inquiry of damages And Iudgment by nihil dicit and an Inquiry awarded the Iury found but eight pence Damages And upon motion for a new Writ it was resolved that the Iury ought not now to enquire of the Wast And therfore the difference is when the Plaintiff upon the distresse recover upon the Statute there the Statute gives power to enquire of the Wast But in this case the Wast is confessed Per nient dedire Ewer and Moyle Dyer 204. a. accord And it was so adjudged between Ewer and Moyle upon demurrer in Wast there the Wast is confessed and the Writ shall be only to enquire of the Damages so if the Plaintiff will release his Damages he shall have a Writ upon Iudgment of the place wasted Mich. 18 Jac. Rot. 2805. Pitt versus Chick MAtthew Pitt brought Replevin against Chick Replevin The Defendant avow for that the place contains five acres which lye between the Lands of Sir George Speck And that the said Sir George Speck and all his Ancestors Prescription to have Herbage de temps d'out c. have used to have Herbage and Pasture of the said five acres viz. if they were sowen then after the reaping untill re-sowing and if they were not sowen then for the whole year and convey Title to the said Herbage by Lease in writing to him and avow Damage feasant And it was urged that he which had all the profit for a time and the sole profit had the Free-hold and that is not a thing which lye in Prescription semble al Common or so pasture for a certain number of years And it was said that a Grant de vestura terrae or de herbag terrae for one and twenty years is a good Lease But it was adjudged that it is a good Avowry and he had only profit a
of forty pounds And adjudged that no action lay vide Coke lib 10 fol 130. in Osbornes Case Thou art an arrant Knave a Cousener and a Traytor Action lies only for the word Traytor and yet all being spoken at one time aggravate and Damages shall be intended to be given only for these words which are actionable vide ut supra fol 131. if the words be alledged as spoken at severall times and as severall causes of actions there if the Damages be entire the Plaintiff shall not have Iudgment if any of the words do not bear action Stanley and Buddens case And other cases were cited that Cousenage is not actionable And Mich 40 Eliz Stanley and Buddens or Boswels case there an Attorney brought an action of the case for these words Thou art a cousening Knave and gettest thy living by Extortion and didst cousen one Pigeon in a Bill of Costs of ten pounds Adjudged that the last words were actionable This case was adjudged for the Plaintiff but I was absent in Chancery and heard not their reasons for it was doubtfull Hil. 17 Jac. Empson versus Bathurst Debt FRancis Empson brought an action of Debt upon an Obligation against George Bathurst the Defendant pleaded the Statute of 23 H. 6. That an Obligation taken Colore officii of any one in their Custody Obligation voided by the Statute 23 H. 8. with any other Condition then for appearance at the day mentioned in the Processe shall be void And shewed that an Extent issued out of the Chancery to extend the Land of Robert Leigh upon a Statute Staple of twelve thousand pounds in which he was obliged to the Plaintiff And that Anthony Thirrold was Sheriff and Charles Empson was under Sheriff and shewn an Extent of the Land returned and before any Liberate it was agreed that the Defendant should pay to the under Sheriff two and thirty pounds ten shillings and that he should be bound to the Plaintiff his Brother for the security therof to the use of the said Charles and therupon he entred into the said Obligation which by the said Statute is void the Plaintiff replyed and shewed that by the execution of the Extent he agreed to pay him the said two and thirty pounds ten shilling and pleaded the Statute 29 Eliz cap. 4. wherupon the Defendant demurred And it was adjudged against the Plaintiff Extortion for this Obligation is extortion and Colore officii and void by the Commen Law Extortion is when any one Colore officii extorquet feodum non debitum plus quam debitum aut ante quam debitum vide Dive and Maringhams case an Obligation made by Extortion is against Common Law for it is as Robbery vide Coke lib 10. fol 100. Dyer 144. And in this case the opinion of the Court was that no Fee is due to the Sheriff by the Statute of 29 Eliz. cap 4. because the Fee is not due untill execution Copulative extent and delivered in execution if it were a Statute-Merchant in which is a Liberate included then the Fee is due Also it was agreed that by the Statute the Sheriff ought to have six pence in the pound where the summ exceed a hundred pounds for all and not twelve pence in the pound Mich. 20 Jac. Bullen versus Gervis RObert Bullen brought an action of Debt for 12 l. upon an Obligation against William Gervis Administrator of Owen Godfrey Debt It is no plea for the Administrator to say the Intestate died outlawed Young and Pigot The Defendant pleaded that the Intestate was outlawed at the Suit of Francis Murrell after Iudgment and pleaded it specially and being so Outlawed died and that Outlawry is in full force Iudgment si Action wherupon the Plaintiff demurred 8 E. 4. 6. There by Littleton between Young and Pigot in an action of Debt against Executors it was holden a good plea to say that their Testator was Outlawed for they are charged to the King for the Goods Genny said that the plea amount only to this that they have not any Goods and so answer argumentative And 21 E. 3. 5. By Brian in a Writ of Debt brought against Executors it is a good plea to say that their Testator was Outlawed sans luy intitle 36 H. 6. 27. By Prisot in Debt against one as Executor of Jane the Defendant said that the said Jane was his Wife and demand Iudgment si action and it seems this is no Plea because that a Feme Covert may have many things which the Husband shall not have as Choses in action and she may make Executors if the Baron agree And Prisot said Sir It seems to me that it is no good plea for an Executor to say that his Testator died Outlawed Cansa qua supra Quare cur hona materia Vpon the reading of the Record it seems that it is no plea for it is only by Implication and that may be given in evidence Also the Executor or Administrator may have divers things which are not forfeitable to the King as if the Testator had Mortgaged his Land upon Condition that if the Mortgagee pay not at such a day to him his Executors or his Heirs a hundred pounds that then it shall be lawfull for him or his Heirs to re-enter and after and before the day the Testator is outlawed and makes his Executors and dies and at the day the Mortgagee pay the money to the Executors that is Assets and not forfeited is the King So if Tenant for life of a Rent be outlawed and the Rent arrear and makes his Executors and die this arrearage is due to the Executor and is Assets and not forfeited for the Rent was a Free-hold for which during his life no action of Debt lay and these arrearages recoverable by the Executors are Assets Also if this should be a good plea which is only by Implication he might therby prevent the Plaintiff of his recovery Also though choses in action are by information in the Exchequer recoverable yet if the Executor bring a Scire facias upon the Iudgment he shall recover and shall be accountable to the King therfore and the Debtors of the Intestate though he was outlawed may pay the debts to him and his release is a good discharge to them Also it was agreed that an Executor or an Administrator might bring a Writ for the reversall of the Outlawry and the Outlawry is not a Bar to him Woolley versus Bradwell Trin. 37 Eliz. Rot. 2954. And one case was vouched by Attho which was adjudged upon the like plea in this Court Trin 37 Eliz Rot 2954. Woolley against Bradwell and his Wife Executors of Sir Thomas Mannord and the matter depended a year and was argued and adjudged that it was no plea for it is but by argument and so being Serjeant Hobart said this Argument ought to be infallible also this is the matter and not the form for in this case the Demurrer was generall and the Book of
font and twenty years that then I. S. shall have the Land and it shall be good vide Dyer 33. Coke lib 10.46 Lampets case But Tuesday the eleventh of February the Lord Hobart by our direction because that we were streightned of time and Howell was so importunate for Iustice that we could not argue delivered the opinion of the Court that Iudgment should be given for the Defendant And he declared that as to the point of a Fee-simple which he called the mounting of one Fee-simple upon another we now declared no opinion But we all without difficulty resolved that this release of Noy be it a Condition or not had discharged it And as to him it is an Interest used by the Devise but not executed untill it happen And therfore in Lampers case there the Release discharged it for there he had no Title executed but vested and commenced and so may have Noy Howell the Plaintiff in this case and it is not like to an Heir in the life of the Father for be is a stranger and he hath no Title at all and yet his Release with Warranty bars him and here this Release is accompanied with Warranty of which nothing was spoken Also as to Noy it is a Condition according to the words of the Will and therfore sans question that Noy had barred himself The Vacation after Hil. 20 Jac. MEmorand That on Munday the seventeenth of February at Serjeants Inn upon the assembly of all the Iustices to take consideration upon the Statute of 35 Eliz. cap. 1. for the Abjuration of Sectaries the Atturney-generall and Serjeant Crew being there Resolutions upon the Statute of Eliz. cap. 1. concerning Sectaries after the perusall of the Statute and the Continuances therof it was first upon debate considered whether this Statute was in force or discontinued and upon the perusall of the Proviso in the Statute of Subsidy and upon reasoning the matter these Points were resolved 1. If a Parliament be assembled and divers Orders made What shall be said a Session of Parliament and a Writ of Error brought and the Record delivered to the higher house and divers Bills agreed but no Bills signed That this is but a Convention and no Parliament or Session as it was An. 12 Jac. in which as it was affirmed by them which had seen the Roll it is entred that it is not any Session or Parliament because that no Bill was signed vide 33 H 6 Brook Parliament 86. every Session in which the King signes Bills is a Parliament 2. It was agreed that if divers Statutes be continued untill the next Parliament or next Session and there is a Parliament or a Session and nothing done therin as to continuance all the said Statutes are discontinued Beriatim Jones Chamberlain Hutton Denham Haughton Dodderidge Winch and Bromley declared their opinions that this Statute is discontinued And that the Statute of Subsidy is a Parliament and that every Parliament is a Session but not e converso for one Parliament may have divers Sessions as the Parliament 1 Jac had four and ended An 7 Jac. vide 33 H 6. Br. Parliament 86. And that this Proviso is not to any other purpose but to continue their proceedings in the same Estate as if this Act had not been made and if this Proviso had not been then this Statute had been discontinued by this act of Subsidy but when this ends and is determined then is the Session ended then it is a Session scilicet a Parliament which ought to be pleaded at the Parliament holden c. and all the Commissions of Subsidy are accordingly and the Proviso call it a Session Then this being done the Lord chief Baron did not deliver any opinion for he said that he had not considered the Statute and afterward it was desired that the Lords would deliver their opinions and therupon the Lord Hobart declared his opinion accordingly That it seemed to him that it was a Session and that it was not safe to meddle with such Law and that he would never refuse to declare his opinion with his Brethren After the Lord chiefe Iustice Ley made a long discourse concerning the purpose and intent of Parliament scilicet That it was not their purpose to destroy so good Lawes and therfore it was not any such Session as was within the intent of the preceding Parliament which was that these should determine when it is a Parliament or Session in which good Lawes are made And Doderidge said that it was fit to see the Commission and that that which hath been said was not to bind any one but every one spoke what then he was advised of and peradventure might change upon better consideration And afterwards upon Tuesday on an Assembly of the two chief Iustices the chief Baron Iustice Haughton Baron Denham Hutton Chamberlain and Jones the Attorney-generall brought the Commission de 12 El. June 1. and that had these words Pro eo quod nullus Regalis Assensus nec responsio per nos praestat fuit nullum Parliamentum nec aliqua Sessio Parliamenti lata aut tent fuit They have power to adjourn this Parliament thus begun And the Commission to dissolve this Parliament 38. Feb. An. 19 Jac. had the same words saving that he recite that he had given his Royall assent to an act of Subsidy by which was intended that it should not be a Session And upon view of the Commission the Lord chief Iustice moved that the King was mistaken in this that he had given power to dissolve this Parliament which had not any Session and if it be a Session then he had no power to dissolve it and then it is as it were a recesse and a Parliament cannot be discontinued or dissolved but by matter of Record and that by the King alone and if the Parliament yet continue then this Statute also continue during the Parliament by the Proviso but that would not serve for first it is against the intent of the King and against his Proclamation And also the case is truly put in the Commission as to the matter in fact and he is not mis-informed but mistaken in the Law and then the Commission for the dissolving is good semblable to the Lord Shandoi's Case and other Cases vide in Cholmleys case But because that all the Iudges were not at this Conference therfore it was deferred untill the next Term and in the interim the Grand Secretary and the Attorney-generall were to inform the King that the Statute is obscure and had not been put in ure and that we could not agree Mich. 20 Jac. Rot. 2805. Bawtry versus Skarlet Sussex JOhn Bawtry Clerk Case brought an action upon the case against Benjamen Skarlet one of the Attorneys of this Court by Bill and count In consideration that the Plaintiff will confesse Judgment the Attorney promise to defer the entry of the Judgment c. that wheras one William Carter Trin. 20 Jac.
Demandant proceeds with the Issue And at the Nisi prius the Tenant relying upon the Non-suit it appeared not by whom the Petit Cape is awarded And now upon motion by Serjeant Henden who relyed upon the Non-suit and that the Essoin was allowable by the Statute of Westminster 2. post exitum habeat unicam Essoniam but it was ruled and the Prothonatories all said that it had been the constant use that no Essoins are allowed in Dower which is festinum remedium vide Stat. 12 E 2. cap 1. hath tolled the Essoin of the Service of the King in many cases and given to the Demandant in many cases power ad callumpniand Essoniam And the words of the Statute are Non jacet in breve de dote quia videtur deceptio prorogatio juris vide Dyer 324. There after the Issue joyned Essoin at the day of the Venire facias though no Venire facas be sued out but only awarded upon the Roll. Mich. 21 Jac. Linleys Case An Information against an under Sheriff for taking of 30 s for making of a Warrant upon a Capias ad satisfaciendum AN Information was exhibited against Linley under Sheriff to Sir Gny Palmes Sheriff of York vpon the Statute 32 H 6 and it was shewn that he being under Sheriff a Capias ad satisfaciendum was delivered to him to Arrest one Francis Lancaster upon a Iudgment for a hundred and three pounds The Defendant Colore officii took of the Plaintiff thirty shillings for making of a Warrant upon this Writ against the form of the Statute wherby he hath forfeited forty pounds Vpon not guilty pleaded and Verdict against the Defendant it was alledged in arrest of Iudgment that the making of a Warrant upon a Capias ad satisfaciendum which is for Execution is not within the Statute because the Statute speaks first of Fees to be taken upon the Arrest of the party when he is bailed viz. twenty pence to the Sheriff and four pence to the Baily then appoints that the Sheriff lets to Bail every one that is taken upon Bill or Plaint besides them which are taken for execution Outlawry c. and then comes the clause That nothing shall be taken for making of any Precept or Warrant but four pence and provision for the Obligation Condition and Fee and that all Obligations taken by any Sheriff Colore officii that these shall be void and that for every offence committed against the Statute he shall forfeit forty pounds The Lord Hobart inclined that this making of the Warrant upon the Capias ad satisfaciendum and the taking of thirty shillings is within this Statute and he resembled it to Dive and Maninghams case in Plowden where an Obligation taken of one in Execution is void by this Statute vide that the clause in this Statute for the Obligation is absolute without any restraint but that all obligations taken by colour of his Office with any other Conditions are made void This taking of thirty shillings for making of a Warrant upon a Capias ad satisfaciendum is extortion at the Common Law for which he may be indited but whether it be within this Statute or no is doubtfull Another Exception was taken to this Information That it doth not appear by this that this Writ of Capias was directed to the Sheriff of York or to any other Sheriff And then admitting this to be a Capias ad satisfaciendum directed to the Sheriff of Lincoln and it is delivered by an ignorant hand to the Sheriff of York to make a Precept therupon and he makes a Precept and takes thirty shillings this is not within the Statute also Colore officii will not serve for it is generall and it ought to be shewn that it was a Capias and to whom it was directed And although that all Processe should be generally directed to the Sheriff yet some may be to the Coroners or some by the mis-prision of the Clerks may be omitted as Jacobus Dei gratia c. tibi precipimus and say not Vice-Comiti Eboracensi salutem And an Information ought to be certain to all common intents and it is like to an Indictment And in an action upon the case against an Attorney because that he Corruptive and in deceit of the Plaintiff and in his name had acknowledged satisfaction to his damage and saies not wheras Revera non fuit satisfactus that is not good And the Court was of opinion for this cause that the Plaintiff should not have his Iudgment Bickner versus Wright AN action upon the case was brought by Richard Bickner against John Wright Case Prescription for the making of a Cony-borough in damage of his Common The Plaintiff prescribe to have Common omni tempore anni and saies not Quolibet anno And after Verdict adjudged good Trin. 22 Jac. Goldenham versus Some GGoldenham brought a Writ of Dower against John Some Dower Judgment in Dower upon Voucher who vouched the Heir of the Husband who entred into the Warranty and said that he had no Assets The Demandant had Iudgment for her Dower because nothing is said to the contrary against the Tenant with a Cesset executio untill the Warranty be determined And the Tenant which vouched when the tryall was at Assises made default but it was said that it should be the default of the Vouchee for he was dead before the Assises And now it was moved that the Demandant might have execution And by Henden it was said that the Voucher is not determined for he might vouch the Heir of the Vouchee But it seemed that the Voucher was determined and that he shall have the benefit of his Warranty by Scire facias out of the Iudgment but the Court doubted if the Plaintiff shall have Iudgment against the Vouchee conditionally if he had Assets if not against the Tenant or absolutely vide 3 H 6. 17. Dyer 202. there it is conditionall vide Dyer 256. there the Iudgment is against the Tenant upon Vouchee of the Heir in Ward to the King and that presently with a Cesset executio vide 46 E 3. 25. If the Vouchee be Counter-pleaded the Demandant shall have Iudgment presently vide 48 E 3. 5. Br Voucher 38. the Iudgment shall be against the Heir conditionally which is vouched in Dower vide 2 H 4. 8. there upon the Voucher of the Heir which makes default upon the Summons sequatur suo periculo the Iudgment is against the Heir conditionally if not against the Tenant and so Iudgment against one not party to the Suit and which never appeared And in this case the Iudgment against the Tenant with a Cesset executio may be good because that it doth not appear by any of their Pleas but that the Demandant is confessed to have her Dower none of them say that he is ready to render her Dower as the Heir ought when he enter into the Warranty This Term Serjeant Finch moved the case
and prayed Iudgment for he said the ancient Books were many for Iudgment conditionally but some to the contrary viz. when the Heir is vouched within the same County and is within age there Iudgment presently against the Tenant with a Cesset executio And when the Heir enter into the Warranty and is taken to render the Dower there is Iudgment against the Heir and that the Tenant shall hold in peace But he said that Mich Ashburnham against Skinner 38 39 Eliz. Rot. 1208. Mary Ashburnham brought Dower against Skinner who vouched the Heir of the Husband in the same County who presently entred en le garranty and said that he had no Assets there the Iudgment was given presently against the Tenant with a Cesset executio And after the Issue was tryed and found that the Heir had not Assets and the Wife had Execution but it was said that Error was brought therupon yet the Feme continued the Possession Henden said that the Tenant otherwise shall lose the benefit of his Warranty vide 13 H 4. Judgment 241. The Court adjudged this case for the Demandant upon view of the said President of 38 39 Eliz. And as this case is the Demandant upon necessity ought to have Execution because that the Tenant which ought to have the benefit of the Warranty made default And if it was so that the Vouchee was dead the Tenant shall not have any other Voucher for the Dower ought not to suffer delay And likewise when Iudgment is given against the Tenant with a Cesset executio all is one as a conditionall Iudgment against the Tenant for if Assets be found then Quia compertum est c. with Iudgment against the Heir and that the Tenant shall hold in peace It was objected that Iudgment ought to be conditionally at first and not to give one Iudgment against the Tenant and afterwards if Assets be found another Iudgment against the Heir but that is no inconvenience Some say that when such Iudgment is given against the Tenant with a Cesset executio there if Assets be found the Demandant shall not have execution against the Heir but against the Tenant and he shall have ad valentiam Quaere Potter versus Browne Case Words NIcholas Potter brought an action upon the case against Browne for these words spoken of the Plaintiff He is as arrant a Theef as any is in England and he broke up the Plummers Chest with other mens Tools which stood in my Lord of Suffolks house and took money out of it The Defendant pleaded Not guilty and Verdict for the Plaintiff And upon the motion of Henden to Arrest and Richardson to have Iudgment The Court resolved that the Plaintiff should not have Iudgment The first reason is because that there is not any affirmative directly that he is a Theef but as arrant a Theef as any is in England And avers not that there is any Theef in England And the Law will not presume any thing that is evill Iniquum in lege non presumitur And as Lacies case was He is as great a Theef as any is in Warwick Goal He ought to aver that there was a Theef there at the time of the speaking of the words And it is the same reason in this case Then the latter words are ambiguous and admit of a double interpretation and the better shall be taken Querens nil capiat per breve Mich. 22 Jac. Methell versus Peck MEthell brought an action upon the Case against Peck and count Case that the Defendant in consideration that the Plaintiff had paid to one Playford forty pounds to the use of the Defendant Where the request of a collaterall thing shall be alledged and by his appointment he assured upon request to deliver an Obligation in which he and another should be obliged to the Plaintiff in a hundred pounds And that the Defendant Licet saepius postea requisitus did not deliver the said Obligation upon Non assumpsit pleaded Verdict for the Plaintiff And it was moved in Arrest of Iudgment by Hitcharn that the Plaintiff had not alledged any sufficient request by shewing such a day and such a place which is issuable And being collaterall matter the request is part of the substance of the action But where it is upon Debt or Contract and not severed from the duty then a Licet saepius requisitus is sufficient But the Court were of opinion that the Plaintiff shall have Iudgment and yet they agreed the diversity when a Request shall be alledged as part of the thing to be performed and when it is but implyed in the Debt For when it is collaterall there it ought to be alledged and for the time it is sufficient viz. Postea but the place of the Request is omitted And if Issue had been tendred therupon it might be supplyed afterwards where it shall be tryed where the action was brought And Non assumpsit allowes the request as if the Defendant had pleaded concord and satisfaction the Request is not to be proved in Evidence vide 10 H 7. 16. But it is said that this Judgment was reversed in the Kings Bench because that the Request being upon Collaterall matter which was the cause of the Action it is materiall Mich. 22 Jac. Ejectione firmae AN Ejectione firmae brought and counted upon a Lease at Haylesam of Tenements there The Defendant pleads that Haylesam ubi tenementa praedicta jacent is within the Cinque-Ports Ubi breve Domini Regis non currit and plead to the Iurisdiction The Plaintiff reply Town shall be intended al the Town that the Tenements are in the County of Lancaster absque hoc that the Town of Haylesam is within the Cinque-Ports wherupon the Defendant demur and adjudged no cause of demurrer For Haylesam is all Haylesam and the Court will not intend any Fractions in the Town viz. that part shall be in the Cinque-Ports and part without as it was affirmed the truth was but that ought to come upon the shewing of the Defendant an his Bar vide 50 E 3. 5. Sir William Ellinghams case Defend respond oust THE FIRST YEAR OF KING CHARLES Termino Pasch Hitcham versus Brook SIR Robert Hitcham Serjeant at Law and to the King Case brought an action upon the case against one Brook a Iustice of the Peace and which had been Sheriff of Suffolk and count that he for divers years last past had been one of the Kings Serjeants and had demeaned himself well and loyally in the discharge of his duty and had gained good opinion and had acquired by his practice a good Estate for the maintenance of him and his Family The Defendant said Words I doubt not but to prove that the Plaintiff hath spoken Treason Innuendo Treason against the King Verdict was found for the Plaintiff And it was moved in Arrest of Iudgment that these words are not actionable First because no time is alledged
to him and he will pay for the making therof that is a good consideration vide Coke lib 8. fol 147. And in this case all the Court were of opinion that the consideration was good for wheras he might have detained the Horse untill he had been paid for the pasture and feeding he at the speciall request of the Defendant had delivered the Horse to him to the use of the Owner which is to the prejudice of the Plaintiff and alienest to him to whose use he was delivered And Iustice Harvey vouched a case which was in this Court adjudged which was in consideration that the Plaintiff had promised to pay to the Defendant ten pounds at a day according to the Condition of an Obligation the Defendant promised to deliver the Obligation and adjudged a good Consideration Turner versus Hodges THe Custom of the Mannor of _____ is found to be for the Copyholders without the License of the Lord of the Mannor they being seised in Fee may make any Lease for a year Custom in a Mannor to make aâ— Lease for years or many years and when they dye that â—â—e 〈◊〉 shall cease and that the Heir or Heirs may enter It was moved in Arrest of Iudgment that this was a bad Custom and that the Copyholders had by Custom an Inheritance and might by the generall Custom of the Ream make a Lease for one year And that tenor the generall Custom of the Realm but the Custom of every Mannor within the Realm vide Coke lib 4. fol 26. in Melwiches Case Custom creates the Estate and the Custom is as ancient as the Estate and is casuall and upon the Act of God and is reasonable that the Heir who is to pay the Fine should have the Possession And yet a Custom that if the Copyholder had surrendred to the Lord that the Lease should be void had been a 〈◊〉 Custom because that he might subvert and destroy by his own act that Estate that he himself had made and he which took the Lease haâ—ing notice of the Custom takes the Lease at his perill for otherwise he might have procured the License of the Lord and then by this License the Lord had dispenced therwith and that is as it were the Confirmation of the Lord For if a Copyholder makes a Lease for twenty years with the License of the Lord and after dies without Heirs yet the Lease shall stand against the Lord by reason of his License which amounts to a Confirmation And the Plaintiff had Iudgment Hil. 4 Car. EJectione firmae was brought and count upon a Lease made by Husband and Wife Lease by Baron and Feme without reservation of any Rent and that was by Indenture And upon Not guilty pleaded a speciall Verdict was given in which the sole question was Whether this Lease was made by Baron and Feme being there was no Rent reserved therby It was objected that this Lease could not be made good by the Feme by any acceptance and therfore it is not the Lease of the Feme no more then if the Verdict had found that the Lease was by an Infant and no Rent reserved that had been a void Lease But it is contrary of a Baron and Feme for the Baron had power and the Feme joyning in the Lease it is not void for she may affirm the Lease by bringing a Writ of Wast or she may accept Fealty And so was the opinion of the Court and Iudgment entred accordingly vide Coke lib 2. fol 61. in Wiscots case Count of a Lease by Baron Feme and shew not that it was by Deed and yet good vide Dyer 91. Pasch 5 Car. Paston versus Utber JOhn Paston brought Ejectione firmae against Barnard Utber upon a Lease made by Mary Paston And upon Not guilty pleaded a speciall Verdict was found at the Bar and the Case was thus Custom that the Lord have a Feild-course over the Lands of his Coppyholders if the Tenant inclose it is no forfeifture Barnard Vtber seised of the said Land to him and his Heirs by Copy of Court-Roll according to the Custom of the Mannor of Binham And that within that Mannor there is such a Custom that the Lord had had one field course for five hundred Ewes in the North-field and the West-field wherof these fifteen acres were parcell from the Feast of Saint Michael if the Corn were inned and if it were not then after the Corn were inned untill the Feast of the Annunciation if it were not before that time sown again with Corn in all the Lands of the Copyholders not inclosed And that it is a Custom that no Copyholder may inclose any Copyhold Land without the License of the Lord And if any be inclosed without License then a reasonable fine should be assessed by the Lord or his Steward for the Inclosure if the Lord would accept therof And it is also a Custom that if the Lord will not accept therof then the Copyholder which so incloseth shall be punished at every Court after untill he open that Inclosure And the said Vtber inclosed the 15. acres with an Hedge and Fence of Quick-set 3. feet deep and 6. feet broad and that he had left 4. spaces of 9. feet broad in the said 15. acres And that the said Vtber was required by the Steward to lay open the said Inclosure and he did it not whereupon there was a command to the Bayliff to seise them as forfeit which was done And the said Mary being Seignoress of the Mannor entred and leased to the Plaintiff and the Defendant entred upon him Serjeant Davenport argued that it is a forfeiture and against the Custom which creates the Feildage for the Lord as well as the Estate of Copyhold for the Tenant and that this leaving of four spaces is a fraud and device and that it is against his Fealty and is to the damage of the Lord and a thing unlawfull vide Dyer 245. 34 E. 1. Formedon 88. 15 A 7. 10. 29 E 3. 6. That if the Tenant inclose the Commoner may break his hedges And though by Littleton an Inclosure which is a Disseisin is a totall Inclosure wherby he which hath the rent cannot come to distrain yet this also is an Inclosure because that it obstructs the feild-course for they cannot come so freely without interuption or damage for the hedges may deprive the Sheep of their wooll And he compared it to the case of 3 H. 7. 4. One is obliged to make an Estate of his Mannor of Dale if he alien part and then make a Feoffment the Condition is broken and vide 5 E 3. fol 58. a Recognizance with Condition to make a Feoffment to I. S. of the Mannor if he alien part therof he forfeit his Recognizance he vouched 42 E 2. 5. and Coke lib 4. that deniall of Services or making of Wast is a forfeiture 22 H 6. 18. 41 E 3. Wast 82. Dyer 364. And though that the Lord may
refusall was within the time of six years and it was adjudged for the Plaintiff because that the request is the cause of the Action for without it he could not have his action And the sole matter upon which Davenport insisted was that this was a Contract by the Husband wherupon the Plaintiff might have an action of Debt against him and then it is but an Assumpsit in Law and the request is not cause of action And therfore he said as well as Debt lies upon the delivery of Cloath to a Taylor for the making Garments therof so an action of Debt lies for the summ accompanying the speciall matter viz. for the payment of so much as the making shall be reasonably worth vide Coke lib 4. fol 147. so Debt lies as well against the said Sir Arthur upon this promise being made then and there he vouched 34 E 1. Fitz Debt 167. vet N. B. fol 62. 30 E 3. 18. 19. 27 H 8. Tatams case But the Court inclined that no action of Debt lay against Sir Arthur upon this Assumpsit but only an action of the case upon the request Mich. 4 Car. Treford versus Holmes Case Assumpsit in consideration of forbearance TReford brought an action upon the Case against Holmes as Executor and counted that wheras the Testator was indebted to the Plaintiff the Defendant in consideration that the Plaintiff would forbear the said Debt for a reasonable time assumed to pay it And this promise was made in December and he shew forbearance untill March next And upon Non assumpsit pleaded and Verdict for the Plaintiff Serjeant Thinn moved in Arrest of Iudgment that it is no sufficient consideration for the incertainty of the time if it had been for a little time it had not been good But the Court adjudged it good for the Court ought to judge of the time whether it be reasonable vide Isaac Sidleys case before Then he moved another Exception which was that he had not shewn and averred in the Count that the Defendant had Assets at the time of the promise vide Coke lib 9. fol 93. 94. Baines Case that ought to come on the other part or otherwise it shall be upon Evidence if it be necessary And Iudgment for the Plaintiff Mich. 5 Car. A strange increase of Water in Westminster-Hall MEmorand That on Friday the twenty third day of October by reason of the greatnesse of the Spring-tyde and a great Flood the Hall of Westminster was so full of water that neither the Serjeants could come to the Bar nor any stand in the Hall for there was a Boat that rowed up and down there and therfore all that was done my Brother Harvey went to the Stairs which came out of the Exchequer and rode to the Treasury and by this way went and set in the Court and Adjourned all the Iuries for it was the fourth day del tres Mich. And after that we were in the Exchequer Chamber and heard four or five motions of the Prothonatories there This comming into Court was not of necessity unlesse it had been the Essoin day or that the Court should be Adjourned as Craft Animar The Chancery and Kings Bench sate for they came by the Court of Wards Freeman versus Stacy Mich. 5 Car. BEtween Freeman and Stacy upon a speciall Verdict the Case was y The Plaintiff count upon a Lease by Indenture for one and twenty years rendring Rent and in debt for the arrearages of this Rent it appears that the arrearages of the Rent for which the action was brought were due six years and more before the action brought And the Lord Richardson was of opinion Arrearages of Rent reserved by Indenture is not within the act of 21 Jac. of Limitations that Iudgment should be given against the Plaintiff because the Statute of the 21. of King James cap. 16. extends to Debts for arrearages of Rent expresly But I and my Brother Harvey and Brother Yelverton concurred that this action of Debt being upon a Lease by Indenture is not limited to any time by this Statute but is out of it and shall be brought as before the making of this Statute The words are All actions of debt grounded upon any lending or Contract without specialty All actions of Debt for arrearages of Rent c. And this is an action upon a Contract by specialty 4 H 6. 31. he ought to declare upon the Indenture and it is a Contract viz. a Lease And there is cause of using the Indenture every half year And it was resembled to the case upon the Statute of 32 H 8. of Limitation a Rent-charge which is founded upon a Deed or a Reservation of a Rent upon a Fee-â—â—mple by Deed are not within the Statute of Limitation And nothing in this Statute was intended to be limited which was founded upon a Deed And the words Debt for arrearages of Rent are supplyed and satisfied by the arrearages of Rent upon a Demise without Deed. And as to the Obligation that he proof of payment might be wanting when the occasion is brought so long after the Rent became due that might be objected to Debt upon an Obligation where the day of payment is for a long time past And afterward the Lord Richardson mutata opinione agreed with us And Iudgment was given for the Plaintiff Trin. 6 Car. Shervin versus Cartwright SHervin brought a Writ De rationabile parte bonorum against Cartwright and counted of Custom in the County of Nottingham Rationabl pars bonorum is not within the â— Statute of 21â— Jac. of Limitations and shew all specially and the conclusion was that he detaineth particular Goods of the party Plaintiff which appertained to him as his part and portion And upon Non detinet pleaded it was found that the Plaintiff was intituled to this Action many years before the Statute of 21 Jac. and that he had not brought his action within the time limited by the said Statute And upon the speciall Verdict the Case being argued by Serjeant Ward for the Plaintiff it was adjudged for the Plaintiff First because that this Action is an Originall Writ in the Register and is not mentioned in the said Act and though that the Issue is Non detinet yet this is no action of Detinue for a Writ of Detinue lies not for money unlesse it be in bags but a Rationabile parte bonorum lies for money in Pecuniis numeratis vide the Book of Entries Rationabile parte bonorum And this action lies not before the Debts be paid And the Account was that therby it might be known for what it should be brought and that in many cases requires longer time then the Statute gives Another reason was that Statutes are not made to extend to those cases which seldom or never happen as this case is but to those that frequently happen Also this Statute tolls the Common Law and shall not be extended to equity And upon all these
the Award of Costs were in full force and effect But that afterwards viz. such a time as well the said Iudgment de non pros as the said Iudgment of thirty pounds Debt against the now Plaintiff were evacuated wherupon the Defendant demurred And it having been often debated by Hitcham for the Defendant and Henden for the Plaintiff And now upon Oyer of the Record and of the Iudgment the Court gave Iudgment for the Plaintiff And the Lord Finch said that this action upon the case is grounded upon two misdemeanours 1. The procurement of the said Iudgment for Edw. L. after a Non pros entred for the Defendant And though the Iudgment was erroneous yet the now Plaintiff was vexed and imprisoned therby which indeed is the cause of this action 2. The taking therof unlawfully when the first Iudgment de non pros was in force and the Plea of Nil tiel Record go only to one of the Causes And admitting that there was never a Iudgment de non pros but that the Defendant had unlawfully procured a Iudgment and taken Execution therupon and procured the Plaintiff to be taken in Execution and Imprisoned this is cause of action And to that he hath not answered and therfore he ought to have pleaded Not guilty to that which he takes by protestation Iudgment pro quaerente Pasch 11 Car. Baker versus Hucking Adjudged B. Rs. Tenant in tail and he in Reversion make a I. case Pro ut aut vic TEnant in tail and he in Reversion joyn by Deed in a Lease for life he in Reversion devise the Land by his Will to one in Fee and dieth Tenant in tail dies without Issue and the Heir of him in Reversion and the Devises claim the Land And the sole question is if this Lease be a Discontinuance and it was adjudged a Discontinuance and then the Devise void for he had not a Reversion And the difference was taken when Tenant for life and he in Reversion joyn in a Lease by Deed for without Deed it is first a Surrender Discontinuance and then the Lease or Feoffment of him in Reversion it shall be the Lease of Tenant for life so long as he live and after the Lease of him in Reversion and yet they shall joyn in a Writ of Wast And in this case there is no question but if the Lease had been made solely by Tenant in tail that then it were a Discontinuance and the joyning of him in Reversion alters it not for that amounts to nothing but as a Confirmation and is not like to Bredons case Coke lib 1. fol 76. Where Tenant for life and he in remainder in tail levy a Fine for every one there passeth that which lawfully he may And upon Argument it was adjudged that it was a Discontinuance and not the Lease of him in Reversion but his Confirmation Iustice Crooke differed in opinion Mich. 11 Car. Lashbrookes Case Somerset LEwes Lashbrook an Attorney of this Court brought an action of Trespasse against I. S. for entring into his house and breaking his Close And in the new Assignment he alledged the Trespasse to be in a house called the Entry and in a house called the Kitchin and in his Garden and in one Close called the Court. The Defendant as to the force c. and to all besides the Entry plead Not guilty And as to his entry into the Court and Kitchin A Warrant to four and two of them execute it and the Tenements aforesaid of the new Assignment he plead that he had brought an action against a woman for Trespasse and had so proceeded that he recovered and had execution directed to the Sheriff of Somersetshire and therupon a Warrant directed to four speciall Bayliffs to arrest the said Woman and two of them at Minehead in the County of Somersetshire arrested her and carried her to the house of the Plaintiff in Minehead being a Common Inn and the Defendant entred into the said houses called the Entry and Kitchin and the Tenements aforesaid of the new Assignment to speak to the Bayliffs and to warn them to keep her safe And as soon as he could he returned wherupon the Plaintiff demurred And now Henden took two Exceptions the first was 1. That the Defendant had not pleaded to all the Closes but that was over-ruled for he justified in the tenements aforesaid of the new Assignment 2. The second was that the Warrant to the Bayliffs was to all and not Conjunctim and Divisim and therfore it should be by all and not by two only To that it was answered and resolved that when a Sheriff makes such a Warrant which is for the Execution of Iustice that may be by any of them for it is Pro bono publico And the very Case was adjudged 45 Eliz between King Hebbs Coke Littleton 181. b. And Iudgment was given for the Defendant Hil. 11 Car. Davies Case Hereford DAvies an Attorney of this Court brought an action upon the case for these words If I list I can prove him Perjured Words And the opinion of the Court was that they were not actionable for there is not any Affirmative that he was perjured but a thing which is Arbitrary and saies not that he would do it Iudgment pro Defend Mich. 7 Car. Rot. 1097. Alston versus Andrew Suff. Pâ—ter Alston Executor of Peter Alston brought an action of Debt upon an Obligation of a hundred and twenty pounds against William Andrew The Obligor and the Obligee make the same person Executor and Edward Andrew and count That the Defendants and one Francis A. became obliged to the Testator c. and that they did not pay it is the said Testator in his life nor to the now Plaintiff and one Francis Andrew Co-executor with the Plaintiff who is summoned and the Plaintiff admits to prosecute alone without the same Francis c. The Defendants demand Oyer of the Obligation which is entred in haec verba and plead that Francis A. in the said Writing named after the making therof made the said Francis Andrew and Barb. A. his Executors and died And that the said Francis A. accepted the Burthen of the Testament And after the said Peter Alston the Testator made his will and Constituted the Plaintiff and the said Francis his Executors and died Et hoc paratus est verificare unde c. wherupon the Plaintiff demur Trugeon and Meron Mich 2 Jac. Rot. 2663. Garret Trugeon Plaintiff against one Anthony Meron and others the Administrators of Benjamin Scrivin upon a single Bill The Defendants demand Oyer of the Bill wherby it appears that one John Simcocks was obliged to the said Trugeon joyntly and severally with the said Scrivin Quibus lectis auditis the Defendants sayd that the said Simcocks died intestate and that the Administration of his Goods was granted to the now Plaintiff who accepted the Burthen of the Administration and Administred the Plaintiff demurred
without danger of their health Not guilty pleaded Verdict for the Plaintiff The Plaintiff prayeth Iudgment and doth offer for Authorities in this Case Smith and Mopham 4 Ass 3 4 E 3.37 5 E 3.47 new Book of Entries fol 19. in 5 Jac. between Smith and Mopham an action upon the case for erecting a Tan-fat with averment of corrupting the Aire and water to the annoyance of the Plaintiff and adjudged for the Plaintiff after Verdict Coke lib 4. Aldreds case pleaded in new Book of Entries fol 106. an action of the case for erecting a Hogsty Ad nocumentum aeris adjudged 22 H 6.14 by Newton an action upon the case lyeth expresly Blande against Mosely Trin. 29 Eliz Bland against Mosely an action of the case for stopping Lights in London adjudged a void Prescription to build so high that the Neighbors lights are therby stopped in a City Old Book of Entries fol 406. in the Edition 1596. action upon the Case brought for annoying a Piscary with a Gutter that came from a Dye-house 1. And there an action brought against a Dyer Quia fumos foeditat alia sordida juxta parietes querentis posuit per quod parietes putridae devenerunt ob metum infectionis per horridum vaporem c. ibid. morari non audebat 13 H 7.26 An action lyeth against a Glover because he with a Lime-pit so corrupted the water that the Tenants departed F. N. B. 185. b. A Writ lyeth to the Major of a City to cleanse the Streets from filth wherby infection might grow By which cases it appeareth that although Sea-cole be a necessary Fuell to be used and that Brew-houses are necessary yet the Rule in Law is Sic utere tuo ut alienum inon laedas And Chimneys Dye-houses and Tan-fats are also necessary but so to be used that they be not prejudiciall to their Neighbors And in this Case the Iury found that this new Brew-house and Privy was maliciously erected to deprive the Plaintiff of the benefit of his Habitation and Office and that the Plaintiff was hereby damnified as in the Declaration is alledged And upon Conference and Consideration of the Case all the Iudges did concur that Iudgment should be given for the Plaintiff THE TABLE Reciting the heads of all the PRINCIPALâ— CASES in this BOOK A ACcompt payment by the appointment of the Plaintiff is no good plea before Auditors where the issue was Ne unque receivor 133 Acceptance of a new Lease makes a surrender 104 Action of the case for giving evidence 11 Action brought by the Committee of a Lunatick 16 Action by the Feme for Frank-bank before admittance 18 Action brought for Rent by the Husband of a Feme to whom the land was granted by a former Husband by his Will untill the Daughter of the Devisor came to the age of eighteen years with a Condition 36 Act on brought against an Attorney for procuring a Judgment to be entred against the Plaintiff and a speciall plea therupon 125 Amendment in a Judgment 41 Amendment where it shall be 41 42 56 81 82 83 84. Act of the Court shall be amended 92 Amendment shall not be of the Pledges left out in the Imparlance Roll upon Bill by an Attorney 92 Amendment of the Proclamation of a Fine 122 Annuity to commence after eight years contained in the Will and no mention therof in the Will by which it is given 32 Annuity out of the clear gains of the Allome Mines 33 Arbitrement of all actions untill the date of the Award 9 Administrators cannot plead that the Intestate died outlawed 53 Advowson in grosse for life 88 Assumpsit by the Husband to the Wife before marriage 17 Assumpsit upon request to procure assent 39 Assumpsit in consideration to maintain Suit in defence of a Common and the Title therof 89 Assumpsit in consideration of forbearance 46 Assets need not to be alledged in an action upon the case against Executors 27 Arbitrements 29 Assumpsit lies not for Rent 34 Assise of Darrein presentment abates by a Quare Impedit 3 Avowry for Homage 50 Attaint how a Prisoner convicted and let at large shall be brought to execution 21 Avowry for Rent granted to the Father without alledging that it was arrear after the death of the Father 55 B. BAil insufficient taken by the Sheriff no action lies for it 120 Bail discharged where the Principall died before the return of the Capias 47 Bail action lies not against the Sheriff for taking insufficient bail 77 Baron and Feme at Exigent whether the Feme shall have Supersedeas alone 86 Bankrupt how the distribution of his Estate shall be 37 Bankrupt upon a fraudulent conveyance 42 Bar recovery in trespasse for taking of Goods is no Bar to an action of the case of Trover 81 Buggery 116 Bylawes 5 Burglary 20. 33 C. CHallenges 24 Condition not to be assistant to another in any action and after he bring a Writ of Error with another upon a iudgment against him and the other 40 Condition to levy a Fine who ought to do the first act 48 Condition to perform Covenant c. concerning Rent where demand is necessary inde 114 Condition to resigne a Benefice upon request 111 Consideration of forbearance 46. 108 Consideration to save one harmlesse if he being an Inn-keeper would safely keep a Prisoner 55 Consideration to confess a Iudgment and a promise therupon to defer the entry therof 63 Consideration that if the Obligor would pay the money the Obligee would deliver up the Bond 76 Consideration Ex post facto 84 Consideration that wheras one was indebted to the Plaintiff in seven pounds for keeping an Horse if the Plaintiff would deliver the Horse the Defendant promised to pay the seven pounds 101 Conspiracy 49 Copyhold may be extinguished without actuall surrender 65 Copyhold land enclosed where the Lord hath a Feild course if it be a forfeiture or no 102 Costs upon Non-suits where the Plaintiff hath no cause of action 16 Costs shall not be allowed upon the Statute of 5 Eliz. for Perjury 22 Costs against an Informer upon a Statute repealed 35 Costs shal not be allowed against Executors 69 Costs shall be allowed against Executors upon Non-suit in a Writ of Ravishment of Ward 78 Councel to what persons it shall be allowed to Prisoners arraigned 133 Counter-plea to the view 44 Custome of London to give security for the payment of Orphans Portions 30 Custome of Copyholders to make a Lease for years 101 Covenant of an Apprentice and when an Infant shall be bound therby 63 D. DEvise to a Feme a tearm upon condition 36 Debt against a Sheriff for monies returned levied by him 11. 32 Demand not necessary in Avowry for a Rent-charge 23 Demand of Rent with a Nomine poenâ—e 114 Demand of Rent where necessary or not 42 Discontinuance where Tenant in â—ail and he in Reversion joyn in a Lease pur aut vie 126 Devise of a fee after a