the Assise in manner and form as the Writ supposeth And further that the said West therof disseised the said Mounson namely of the Tenements in the will of one Mounson And did not find either the words of the Will nor the Will it self what it was c. And the Iustices of Assise upon this Verdict upon advice with the other Iustices gave Iudgment that the Plaintiff shall recover c. upon which a Writ of Error was brought in the Kings Bench where it was moved that the Iudgment was erroneous First because the Iury have not found that the Defendant was Tenant of the Free-hold agreeing with the form of the Plea for the Writ of Assise doth not suppose him to be Tenant of the Free-hold and therfore the Verdict in this point not fully found The second Error is that the Seisin of the Plaintiff is not required of according to the charge given to them as well as the Disseisen for the charge was that they should enquire of the Seisen of the Plaintiff c. But to both these the Court answered that the Verdict is well enough notwithstanding these exceptions for every Assise brought supposeth that there is a Disseisor and a Tenant named in it then this Assise being brought against a sole person supposeth him to be a Disseisor and Tenant also and therfore the Verdict saying that he was Tenant as the Writ supposeth is now as strong in this case as if they had found that he was Tenant of the Free-hold for the Tenant of the Free-hold ought to be named in the Writ But if the Assise had been brought against two or more such a Verdict had not been good for it sufficeth if any of them be Tenant of the Freehold and then the Writ doth not suppose one to be Tenant more then another but supposeth one Tenant to be named in the Writ And therfore in such a case the finding ought to be speciall to wit that such a one is Tenant of the Free-hold or that there is a Tenant of the Free-hold named in the Writ But where one only is named in the Writ to be Disseisor and Tenant it is sufficient to find as here for by this it is certainly found that he is Tenant of the Free-hold And for the other point although it be a good direction for the Iudges to the Iury wherby they may the better perceive that there ought to be a Seisin in him or otherwise there cannot be a Disseisen by the other yet in Deed he cannot be a Disseised who was not then seised But the Assise having found the Disseisen the Seisen in Law is found included in the Disseisen But for the point moved that the Verdict was not perfect in as much as they found the Disseisen with a Nisi it seemed to Gawdy that the Iudgment upon this Verdict was erronious as where a Verdict in another Action is imperfect a Venire facias de novo shall be awarded to try the Issue again And if Iudgment be given upon such a Verdict it is error so here the Verdict in this point being incertain there ought to have been a Certificate of Assise to have this better opened But the three other Iustices held as the case is that the Verdict in this point is certain enough for that which cometh before the Nisi as it is placed is meerly nugator as in the case of the Lord Stafford against Sir Rowland Heyward the Iury found Non assumpsit but if such Witnesses say true as they believe they did Assumpsit c. it was but a meer nugation But it seemed to Popham that if the Verdict had been if the words of the Will do not passe the Land then that he disseised and if they passe then that he did not disseise there if the words of the Will be not found the Verdict had been all imperfect but here the Verdict is full and perfect before the Nisi c. and therfore the Iudgment was affirmed Holme versus Gee 8. A Formedon in Descender was brought by Ralph Holme Demandant against Henry Gee and Elizabeth his Wife Tenants and the Case wâ—s thus Ralph Langley and others gave two Messuages and a Garden with the Appurtenances in Manchester to Ralph Holme the great Grandfather of the Demandant and to the Heirs of his body begotten after which the same great Grand-father by Deed indented dated 20. September 14 H. 7. enfeoffed Iohn Gee of one of the said Messuages and of the said Garden rendring yearly to the said great Grand-father and his Heirs 13 s. 4 d. a year at the Feasts of S. Michael and the Annunciation by equal portions after which the said Iohn Gee died seised of the said Messuages and Garden and it descended to Henry Gee his Son and Heir after which the said great Grand-father by his Indenture bearing date 6. Martii 12 H. 8. enfeoffed the said Henry Gee of the other Messuages rendring also to him and his Heirs yearly 13 s. 4 d. at the said Feast aforesaid by equal portions after which Holme the great Grand-father died Stephen Holme being his Son and next Heir who was seised of the Rents aforesaid and afterwards also died seised Robert Holme being his Son and Heir after which the said Henry Gee died seised of the said two Messuages and Garden and they descended to Eliz. his Daughter and Heir who took to Husband one Richard Shalcroft and had Issue the said Elizabeth wife of the said Henry Gee Tenant in the Formedon after which the said Richard Shalcroft and his wife died after which and before the marriage had between the said Henry Gee and Elizabeth now Tenants in the Formedon the said Elizabeth enfeoffed one Richard Greensearch of the said Messuages and Garden after which to wit at the Feast of the Annunciation of our Lady 3 Eliz. the said Henry Gee husband to the said Elizabeth paid 13 s. 4 d. for the said Rent reserved as is aforesaid to the said Robert Holme after which to wit on Munday next after the Assumption of our Lady at Lancaster before the Justices there a Fine was levied with Proclamations according to the Statute between Thomas Aynsworth and Thomas Holden then being seised of the Tenements aforesaid Complainants and the said Henry Gee and Eliz. his wife Deforceants of the Tenements aforesaid wherby the Conusance was made to the said Thomas and Thomas who rendred them to the said Henry Gee and Eliz. his wife and to the Heirs of their bodies the Remainder to the right Heirs of the said Henry the five years past after the Proclamations in the life of the said Robert Holme after which the said Robert died and Ralph his Son and Heir brought the Formedon upon the Gift first mentioned and the Tenants plead the said Fine with Proclamations in Bar and the Demandant replyed shewing the severall discontinuances made by the great Grand-father as aforesaid and the acceptance of the said Rent by the said Robert by the hands of
given for the Defendant The same Term in the same Court. Laurking and Wildes Case THe Rector of the Church of livelled in the spirituall Court for the Tithes of a riding Nag where the case was That a man let his Land reserving the running of a Horse at some time when he had occasion Tithes for a riding Nag to use him there The Defendant shewed this matter in the Court by his Counsell and prayed a Prohibition and avers that for the same Land in which the Horse went he paid Tithes And by the Court nigh London a man will take a 100. or 200. Horses to Grasse now he shall pay Tithes for them or otherwise the parson shall be defeated But in this case if the Defendant alledge and prove that it was a Nag for labour and not for profit a Prohibition lies The same Term in the same Court. Havergall versus Hare IN an Ejectione firmae brought by Havergal against Hare the Case was thus Afterwards fol 55. A Rent of 20 l. per annum was granted out of Green acre to one and his Heirs to be paid at Michaelmas and the Annunciation of our Lady by equall portions and the Grantor covenants that if the Rent of 20 l. be arrear by the space of twenty daies that the Grantee may distâ—ain and that if there be not sufficient distresse upon the Land or iâ— there be a Rescous Replevin or Pound-breach that then it shall be lawfull for the Grantee and his Heirs to enter and retain the Land to them and their Heirs untill the 20 l. be paid 10 l. for one half years Rent was in arrear and for it an entry was made Mountague chief Iustice and Doderidge Iustice there can be no entry made when 10 l. only is behind for the words of the Deed are that if the Rent of 20 l. be behind that the Grantee and his Heirs may enter and if he shall enter now he shall retain the Land for ever for the 20 l. shall never be paid Crook and Haughton Iustices contrary for if 10 l. be arrear the Rent of 20 l. is arrear for Haughton said In an Assise of Rent of 40 l. where part is arrear yet he ought to bring his Assise for the whole Rent of 40 l. for the Writ ought to agree with the Deed. Doderidge agreed with him in the case of an Assise but not in the principall point And for the second point it was agreed by them all that upon the entry of the Grantee he shall have a Fee-simple determinable admitting the entry for the 10 l. to be good The same Term in the same Court and it is entred 14 Jac. Rot. 1484. Robinson versus Walter RObinson brought an Action of Trover and Conversion against Walter and upon the whole matter the case appeared to be this A Stranger took the horse of the Plaintiff and sent him to a common Inn and there he remained for the space of half a year at which time the Plaintiff had notice where his Horse was and therupon he demanded him of the Inn-keeper who answered that a person unknown left the Horse with him and said that he would not deliver the Hoâ—se to the Plaintiff unlesse he would pay for his meat which came to 3 l. 10 s. for all the time and also would prove that it was his Horse upon which the Plaintiff demurred in An Inn-keeper may detain a Horse untill he be satisfied for meat albeit he be left by a stranger Law And it was resolved by Mountague chief Iustice Crook and Doderidge Iustices Haughton Iustice dissenting that the Defendants plea was good for the Inn-keeper was compellable to keep the Horse and not bound at his peril to take notice of the Ownder of the Horse And by the custom of Lond. if a horse be brought to a common Inn wher he hath as it is commonly said eaten out his head it is lawfull for the Inn-keeper to sell him which case of the custom implies this case And there is a difference where the Law compels a man to do a thing and where not As if the Lievtenant of the Tower brings an Action of debt for Dyet against one who was his Prisoner in this case the Defendant cannot wage his Law because the Law compels the Lievtenant to give Victuals to his Prisoner otherwise if another man brings an Action of debt for Dyet and in the case at the Bar the Inn-keeper was compellable And Doderidge said that if the Law were as the Plaintiff would have it it were a pretty trick for one who wants a keeping for his Horse And Mich. 6 â—ac in the Kings Bench between Harlo and Ward the like was resolved as was cited by Barkesdels of Counsell with the Defendant Mich. 14. Jac. In the Kings Bench. Rawlinson versus Green A Copyholder surrendred out of Court according to the custom of the Mannor which at the next Court was presented and entry therof made by the Steward Scilicet Compertum est per homagium c. but no admittance Afterwards Cestuy que use surrenders before admittance and the first Copyholder surrenders to the Plaintiff And in this case there were two questions 1. Whether he may surrender before admittance 2. Who shall have the Land whether the first Copyholder or the Lord Haughton Iustice held that he could not surrender before admittance and the entry of the surrender doth not make an admittance for this being the A â—urâ—ender of Copyhold cannot surrender before admittance sole act of the Steward shall not bind the Lord and it is not like to the usuall foâ—m of an admittance for that is Dat Domino de fine fecit fiâ—elitatem admissus est inde tenens Doderidge Iustice agreed and said that in Hare and Brickleys case the admittance of a Copyholder was compared to the induction to a Benefice which gives the possession Hillary 14. Jac. In the Kings Bench. Sir John Pools Case Three Executors brought an Action of Debt and one only declared and they were ready for a triall in the Country and now it was moved that the Declaration might be amended and the names of the other Executors incerted but per Curiam this cannot be without the assent of the parties Pasch 15. Iac. In the Kings Bench. Cooper versus Smiths AN Action upon the Case was brought for these words viz Waterman Action for these words Thou hast killed thy Masteâ—s Cook and thou Innuende the Plaintiff hast killed thy Masters Cook Innuende c. and I will bring thee in question for thy life And after Verdict for the Plaintiff it was moved in Arrest of Iudgment by the Counsell of the Defendant that the words were not actionable for the incertainty inasmuch as it doth not appear who was his Master nor that his Master had a Cook Mountague chief Iustice said that the words were actionable and albeit Inâ—uendo cannot maâ—e a thing that is uncertain certain an Innuendo cannot make a
est rerum omnium vendendarum mensura Bracton 117. 18 E. 3. Hollinghead 109. 50 E. 3. Rot. Pat. Memb. 7. And for transportation 17 E. 3. 19 E. 3. Rot. Pat. 24. De monetis non transportandis 19 R. 2. Rot. Pat. The Dutches of obtained licence to melt Coin to make Plate And divers of the Defendants were within the Kings generall pardon but in as much as they pleaded it in their Rejoynder and not in their answer as it ought to be the Court over-ruled their Plea so that they could have no advantage therby But in as much as they were strangers and not coâ—usant of our Laws and relyed only upon their Counsell the Court had consideration therof in their censure Hillary 17 Jac. In the Kings Bench. Serle versus Mander SErle brought an action upon the case against Mahder for these words to Words I arrest you upon Felony wit I arrest you upon Felony and after Verdict for the Plaintiff it was moved in Arrest of Iudgment by Richardson that the words were not actionable for he doth not say that the Plaintiff had committed Felony But it was rescived by the Court and so adjudged that the action lieth The same Term in the same Court A Iudgment was obtained against one of the Servants of the Lord Hay Iudgment against a Defendant when beyond Sea with an Ambassador reversed Viscount Doncaster when he was Ambassador in Bohemia and attending upon him there And this matter being disclosed to the Court by the Counsell of the Defendant they would not suffer the Plaintiff to have execution upon the said Iudgment but ordered the Plaintiff to declare De novo to which the Defendant should presently answer Memorand It was said to be against the course of the Court to have an Imparlance Imparlance before the Declaration entred The same Term in the same Court The King against Briggs A Quo warranto was brought by the King against Briggs for exercising A Subject cannot have a Forest of certain Priviledges who justified by virtue of a Forest granted to him And by Bridgeman this is the first Quo warranto which he knew that had been brought against any Subject for a Forest for a Subject cannot have a Forest but he may have a Chase which peradventure may passe under the name of a Forest And there are divers incidents to a Forest which a Subject cannot use nor have there ought to be a Iustice of a Forest which a Subject cannot have and such a Iustice ought to be a man of great Dignity 2. There ought to be Verderors who are Iudges also and by 34 E. 1. Ordinatio Forrestae ought to be by Wait but a Subject cannot award a Writ Also there are three Courts incident to a Forest 1. A Court of Attachments which may be without Verderors 2. The Swanimate Court 3. The Iustice seat and this appeareth in 1. E. 3. cap. 8. 21 E. 4. cap. 8 But by the Statute of 27 H. 8. cap. 7. There are some other incidents to a Forest 2. Admits that a Subject may have a Forest yet it fails in this case because he hath shown the exemplification and not the Letters Patents and see Co. lib. 5. Pains case that neither an exemplification or constat are pleadable at Common Law and Co. lib. 10. Dr. Leyfeilds case The same Term in the same Court Sir William Webb versus Paternoster THe case was this Sir William Plummer licensed Sir William Webb to lay his Hay upon the Land of the said Sir William Plummer untill he could conveniently sell it and then Sir William Plummer did make a Lease of the Land to Paternoster who put in his Cattell and they eat up the Hay And it was two years between the license and the putting in of the Cattell and yet Sir William Webb brought an action of Trespasse against Paternester for this Mountague chief Iustice 1. This is an Interest which chargeth the Land into whosoever hands it comes and Webb shall have a reasonable and convenient time to sell his Hay 2. The Lessee ought to give notice to Notice Sir William Webb of the Lease before he ought to put in his Cattell to which Haughton Iustice agreed in both points But Doderidge Iustice said that Sir William Webb had no certain time by this license yet he conceived that he ought to have notice But it was resolved that the Plaintiff had Convenient time a convenient time to wit two years for the removing of his Hay and therfore Iudgment was given against him But admit that there had not been a convenient time yet the Court was of opinion that the Plaintiff ought to have inclosed the Land at his perill for the preservation of his Hay And it was agreed that a license is countermandable although it be concerning A license whether for profit or pleasure countermandable profit or pleasure unlesse there be a certain time in the license as if I license one to dig Clay in my Land this is evocable and may be countermanded although it be in point of profit which is a stronger case then a license of pleasure see 13 H. 7. The Dutches of Suffolks case for a license The same Term in the same Court SIbill Westerman brought an action upon the case against Eversall and had Error Sibell for Isabell Iudgment and in the entry of the Iudgment she was named Isabell 1 Ass and 3. Ass A Fine was levied by Sibill when her name was Isabell and it was not good for it doth not appear to be the same party so in the case at the Bar And for this the Iudgment was reversed The same Term in the same Court JEne as Executor of brought an action upon the case against Chester An Infant chargable for necessary Apparrell because the Defendant made request to the Testator of the Plaintiff to buy for him certain silk Stuffs for Apparrel and to make him a Cloak the Defendant pleaded that he was within age and George Crook said that the Defendant should not be charged because it is not shewn that the Apparrell was for the Infant himself but he was over-ruled in this for it is sufficiently expressed to be for him And it was agreed by the Court that it ought to be shewn that it was Pro necessario vestitu and it ought to be suitable to his calling and as Doderidge said that there was a case adjudged in this Court between Stone Withipole that where Withipole had taken of Stone certain Stuffs for Apparrel being within age and afterwards he promised payment if he would forbeare him some time and the Assumpsit adjudged not good because he was not liable for the Debt at first for the reason aforesaid Trin. 17. Jac. In the Common Bench. Gilbert de Hoptons Case AN action upon the case was brought for those words viz. Thou art a Words Thou art a Theef and hast stoln my Furze Theef and hast stoln
that it was good enough for although it were a joynt command yet the parties commanding having severall titles it shall be taken as severall commands reddendo singula singulis and for the third it is good enough being in a Plea otherwise if it had been in a Writ But for the second Exception the bar is not good enough because incertain so that although upon other Exceptions moved by the Defendant the Replication of the Plaintiff was not good yet the Defendants Bar being ill the Plaintiff shall have Iudgement upon tâ—e Declaration And the Plaintiff had Iudgement accordingly The same Term in the same Court Risley versus Hains IN an Action upon the Case upon an assumpsit the Plaintiffe declared upon the Sale of several parcells of Tobacco to wit for one parcell so much for another parcell so much and so forward and in the Conclusion he saith quae quidem separales summae in toto se attingunt to 55. l. which being computed is lesse then the pariculars and upon non assumpsit it was found for the Plaintiffe and now Andrewes moved in arrest of Judgement for that the particulars and the summing up of them differs and this being in a Declaration which ought to contain truth it is not good and so there appears to be no cause of action 35. H. 8. Dyer 55. And Grices Case in the very point Mich. 17. Jac. in this Court but by Jones and Whitlock Iustices onely present the Declaration is good enough for there is a particular promise for every parcell and the summing up of particulars is only surplusage and officiousness of the Clark therefore the Iudgement was affirmed And nota that Jones said obiter in this Case that upon a contract the Party to whom payment is to be made need not make request and afterwards it was agreed by the whole Court that it should be amended otherwise it had been more The same Term in the same Court A Great multitude of Welsh-men were Indited for the death of a man by an Inquisition taken before the Coroner in the County of Mountgomery in Wales and Littleton of Councel with the Welsh-men took some Exceptions to the Inquisition as 1. That the Coroner cannot take any Inquest unlesse it be super visum corporis and to this purpose he cited Britton 6. Ric. 2. Coron 107. 21. E. 4. 70. 2. Ric. 3. 2. This also is the reason that if a man drown himselfe and cannot be found the Coroner cannot enquire of the death of this man but for the King to have a forfeiture of his Goods an Inquisition ought to be taken before the Iustices of Peace as it was resolved in this Court Trin. 13. Jac. upon which the first exception was that the Inquisition was taken at D. in the time of King James super visum corporis in D. in the time of this King and for this he cited two presidents out of Cookes Booke of Eâ—tryes Another Exception was because the Inquisition was per Sacramentum probor legal hominum Com. predict whereas by the Stat. of 4. E. 1. this inquest ought to be by men of the four Towns next adjoyning and this ought to appear in the Inditement also Hill 10. Jac. Rot. 3. Co. lib. Intr. 354. And day was given to the Attorney General to maintain this Inquisition But afterwards Pasch 3. Car. the Inditement was quashed especially for the first exception The same Term in the same Court King versus Merrick In an Action upon the Case for these words I charge you King with Felony and you Constable inuendo Thomas Legat to apprehend him And a verdict for the Plaintiff It was moved in arrest of Iudgement by Bacon that the words are not actionable The first words are not because they are not an expresse affirmation and for this he cited Mich. 11. Jac. in this Court Powel and Bauds case where an action was brought for these words I have arrested Powel of Felony for stealing sheep of mine and adjudged not actionable Also the Plaintiff did not shew in his Declaration what kinde of felony this was and it may be such a felony for which an Action will not lie for there are divers kinds of felony and a Mayhem is one kind as appears in 40. Ass Pl. 4. 6. H. 7. 1 and in this case it shall be taken in mitiori sensu and it shall not be intended such a felony for which he may be hanged If one charge another with felony because he hath committed a Mayhem it is cleer that an action will not lye And the other words I charge you Constable to apprehend him are not actionable and the words are onely spoken to the Plaintiff Also the words are layd to be spoken in London and it appears that the Constable was of a Town in Norfolk who cannot apprehend any one in London Earle for the Plaintiff It hath been argued that the words are not actionable because felony is a generall word and contains in it selfe a mayhem also But I conceive that in this case felony shall be taken according to the general and common acceptation which is such a Felony for which a man may loose his life and for this he cited Co. lib. 4. 15. b. Yeomans charged Hext for my ground in Allerton Hext seeks my life and if I could find Iohn Silver I do not doubt but within two dayes to arrest him upon suspition of Felony and it was adjudged that for the last words the Action lies because he shall be imprisoned for suspition of felony and felony is there taken according to the common acceptation of the word It hath been objected that there is no expresse affirmation of the Felony but I conceive that there is 39. Eliz. Action was brought for these words I will call him in question for poysoning my Aunt and adjudged that it lyes and Mich. 37. and 38. Eliz. Woodrofe and Vaughans case for these words I did not know Mr. Woodrofe was your Brother I will prove him perjured or else I will bear his charges and adjudged actionable And Hill 44. Eliz. Rot. 351. This man inuendo Iohn Latham hath cut my Wives purse and his Father knowing of it received it of him and the Money and Rings theein and therefore I charge him of flat Felony and resolved that for these words did cut my Wife's purse no action lies for the cutting of ones purse only is not felony unlesse it be taken from the person and to receive one is not Felony but resolved that the last words were actionoble and then it was agreed that if one say that I. S. did see such a one that had committed felony and did suffer him to slip away I charge him of Felony these words are not actionable and Mich. 20. Jac. in this Court that these words beare witnesse I arrest him of felony are actionable and therefore he prayeâ— judgement for the Plaintiff Doderidge Iustice the words are not actionable And Hexts case comes not to this
thing that is uncertain certain but shall serve as a Predict yet the words import that he had a Master and that his Master had a Cook to which all the Court agreed and Iudgment was given for the Plaintiff And another Action was brought for these words Scil. Thou hast sacrificed Thou hast sacrificed thy child to the Devill thy Child to the Devill and adjudged that the words were actionable Mich. 15. Iac. In the Kings Bench. Lee versus Brown IN an Ejectione firmae brought by Lee against Brown the Case was this Whether copyhold Lands may be intailed Tenant in Tail of Copyhâ—ld Land surrendred the same into the hands of the Lord to the use of I. S. wherupon two points did arise 1. Whether Copyhold Land be within the Statute of Donis conditionalibus so that iâ— may be intailed 2. Whether the Intail may be cuâ— off by the surrender Doderidge Iustice said as to the first point that it hath been a great doubt whether it may be intailed but the common and better opinion was that by the same Statute co-operating with the custom it may be intailed and with this agrees Heydons case in my Lord Cokes 3. Report and so was the opinion An Intail of copyhold lâ—nd nâ—t to be cut off by â—urrender unlesse by speciall custom of the Court. And for the second point their opinion also was that it could not be cut off by surrender unlesse it were by speciall custom and they directed the Iury accordingly And it was said to maintain this custom it ought to be shewn that a Formedon had been brought upon such a Surrender and Iudgment given that it doth not lye yet it was agreed that it was a strong proof of the custom that they to whose use such Surrenders had been made had enjoyed the Land against the Issues in Tail And it was said by the Counsell of the Defendant that there was a Verdict for them before in the same case which they could prove by witnesses but the Court would not allow such a proof because it was matter of Record which ought to be shewn forth In the same Term in the Common Pleas. May versus Kett. AN Action upon the Case was brought for these words viz. Thou hast Words Thou hast stoln my Corn out of my Earn stoln my Corn out of my Barn And it was moved in Arrest of Iuâ—gment because he had not said how much he had stoln and perhaps it was of small value and yet it was adjudged that the Action would lye for it is at least petit Larceny But if he had said that he had stoln his Corn generally it had not been actionable for it might have been growing and then it had been but a Trespasse The same Term in the Star Chamber Riman versus Bickley and others IOhn Riman exhibited a Bill in the Star Chamber against Thomas Bickley and Anne his Wife Dr. Thorn Mr Goulding and others Defendants the said Anne was first married to Devenish Riman the Plaintiffs Son and between them were many â—ars and disâ—greemâ—nts and the said Devenish was much given to drinking and other Vices and divers times did beat and abuse his Wife and was also jealous of the saiâ— Thomas Bickley and his Wife being at a certain time at Supper with Dr. Thorn Goulding and others spake such words as these having communication thâ—t her Husband did beat and abuse her to wit That she heard that his Father had that quality and being once whipt for it was the better ever after and that if she thought it would do her Husband any goâ—d she would willingly bestow 40 s. on some body to give him a whipping wherupon Gâ—ulding said that he would give him a Medâ—cine for his Mâ—lâ—dy and within two daies after he came in the night in womâ—ns apparrell with a Weapon under his Cloak and with a Rod and wenâ— into the House and Chamber of the said Devenish and would have whipped him and in striving together there was some hurt done on either side but Gâ—ulding not being able to effect his purpose fled and this was conceived to be by the procurement of Anne his wife And not long after Devenish fell sick and sent to his said wife for certain necessaries which she would not send him and presently after Devenish died and she refused to come to his buriall And although it were much disliked that Devenish should abuse his Wife in such uncivill manner as to strike and beat her and as Coke late chief Iustice said it is not lawfull by the Act Military for one man to strike another in the presence of Ladies yet it was resolved by the whole Court that it was a great misde meanor in the Wife and uncivill and undutifull carriage in her to do so to her Husband as they use to do to Children or fools to wit to give them the Whip and so to disgrace and take away the good name of her Husband which viz. A mans good name and his Childrens are the two things which make a man live to Posterity as was said by Sir Francis Bacon Lord keeper and the Court fiâ—ed the Wife 500 l. and it was said that Thomaâ— Bickley her noâ— Husband well deserved to pay this Fine because he was too familiar with her in the time of his Predecessor and as the Bishop of London said Devenish Rimon lay upon her hands and Thomas Bickley upon â—eâ— heart And to aggravate this matter a Letter was shown whiâ—h Devenish Rimon wrote to his Wife in which he called her Whoor and told her somwhat roundly of her faults and she wrote back to him in the Margeâ—t that he lyed and wished him to get a better Scribe for his next Lâ—â—ter for he was a Fool that wrote that wherin she called him Fool by craft And Goldings offence was accâ—vnted the greater because he was a Minister so that he was fined 500 l. also And Coke said that the course of this Court was that if any were fined who is not able to pay it Respondeat superior he that is the principall and chief agent therin must answer it for otherwise poor men might be made Instruments of great mischief who are not able to answer and the greater Offenders shall escape which the Lord Keeper confirmed And as to Doctor Thorn he was acquitted by all And the Bishop of London said that they had thought to have troad upon a Thorn and they gat a Thorn in their foot And by Coke if Devenish Rimon had died upon it it had been capitall in the Wife who procured it for it was an unlawfull Act. The same Term in the Kings Bench. Wescot versus Cotton THe case was this An Infant Executor upon an Action brought against Where an Infant Executor may declare by Attorney but not defend by Attorney but by Guardian him appeared by Attorney where he ought to appear by Guardian and it was resolved by the Court that this was Error for this
of the Bailment But Haughton being contra therfore Curia advisare vult The same Term in the same Court The Earl of Shrewsburies Case VPon a Verdict a rule was given to have Iudgment and this was upon the Thursday and upon Sâ—â—uâ—day after thâ— party that was Plaintiff died and it was moved to have a Writ of Error because it was said that the party died before Iudgment in as much as of course aâ—ter the Verdict and the â—ule given for Iudgment there are four daies given to speak in Arrest In the diâ—cretion of the chief â—ustice to allow a Writ of Error The entry of a Iudgment how it shall relate of Iudgment â—â—o so as Yelverton Attorney-generall said he died before Iudgment absolutely given and he moved the Court to have a Supersedeas And it was agreed that it wâ—s in the discretion of the chief Iustice Ex officio to allow a Writ of Error but because it was a cause of great consequence he took the advice of the Court and it was agreed that a Writ of Error was a Supersedeas in it self yet it is good to have a Supersedeas also and if the Writ of Error had been allowed the Court could not deny the party a Supersedeas But because the Writ of Error was not allowed and also because no Error appeared to the Court for where Iudgment is entred this shall relate to the time of the rule given It was resolved that no Writ of Error should be allowed nor any Supersedeas granted The same Term in the same Court. Rones Case IN an Ejectione firmae brought by the Lessee of Rone Incumbent of the Church of Dallinghoe in Com. Suff. It was found by speciall Verdict that the King was the true Patron and that Wingfeild entred a Caveat in vita Incumbentis he then lying in Extremis scilicet Caveat Episcopus ne quis admittatur c. Nisi Convocatus the said Wingfeild the Incumbent dies Naunton a stranger presents one Morgan who is admitted and instituted afterwards the said Wingfeild presents one Glover who is instituted and inducted and afterwards the said Rone procure a presentation from the King who was instituted and inducted and then it came in question in the Spirituall Court who had the best right and there sentence was given that the first institution was Irrita vacua inanis by reason of the Caveat then the Church being full of the second Incumbent the King was put out of possession and so his presentment void But it was adjudged and resolved by all the Court for Rone for 1. It was resolved that this Caveat was void because it was in the life of the Incumbent 2. The Church upon the Institution of Morgan was full against all but the King and so agreed many times in the Books and then the presentation of Glover was void by reason of the super-institution and therfore no obstacle in the way to hinder the presentation of Rone and therfore Rone had good right And if the second institution be void the sentence cannot make it good for the Spirituall Court ought to take notice of the Common Law which saith that Ecclesia est plena consulta upon the institution and the person hath therby Curam animarum And as Doderidge Iustice said he hath by it Officium but Beneficium comes by the Induction And although by the Spirituall Law the institution may be disannulled by sentence yet as Linwood saith Aliter est in Anglia who is an Author very well approved of amongst the Civilians And Doderidge put a case out of Doctor and Studient the second Book If a man devise a summ of money to be paid to I. S. when he cometh to full age and afterwards he sues for it in the Spirituall Court they ought to take notice of the time of full age as it is used by the Common Law to wit 21. and not of the time of full age as it is used amongst them to wit 25. So in this case at the Bar for when these two Laws met together the Common Law ought to be preferred And when the Parson hath institution the Arch-deacon ought to give him Induction And see Dyer 293. Bedingfeilds case cited by Haughton to accord with this case The same Term in the same Court Taylors Case JOhn Taylor a Citizen and Alderman of Glocester was put out of his place by the Common Counsel of the City for some misdemeanor and he sued out a Writ of Restitution and for that the cause of his displacing was not sufficient Writ of Restitution for an Aldermans place his Writ was allowed by reason wherof the other Alderman who was elected in his place was to be removed for the number of Aldermen was full But Hazard another Alderman to the end that the new elect who now was Major should not be displaced was contented to surrender his place in consideration of 10 l. a year granted to him by the Corporation for term of his life with which the Wife of Hazard was not content and therfore he would have left his agreement And therupon the question was whether he might surrender or not And it was said by Coventree Sollicitor that he cannot and he cited Middlecots case an Alderman of B. where the opinion of the Court was 13 Eliz. that he cannot surrender Doderidge perhaps they would not except his surrender Mountague said that Alderman Martin of London gave up his Aldermans place and without question any man in such a case may surrender or leave his place to which the Court agreed and therfore it was ordered that Hazard shall have his 10 l. a year and that he shall stand to his first agreement The same Term in the same Court. May and Samuels Case AN action of Debt was brought upon an Obligation the Condition wherof was to stand to the Arbitrement of John S. concerning all matters between them to the time of the submission who arbitrates that the one shall pay 20 s. and that the other shall make a generall release to him of all matters from the beginning of the world to the time of the arbitrement Arbitrement Haughton Iustice this is an arbitrement but of one part and therfore void but if it had been only that the one shall pay 20 s. it may be good for it shall be intended that the other by reasonable construction shall be discharged or acquitted to which Crook and Doderidge Iustices agreed But by Mountague chief Iustice it ought to be specified yet they all agreed and so it was adjudged that this was a void arbitrement for it was of the one part only to wit that he shall pay 20 s. for the other part for the release to the time of the arbitrement was not within the submission so if the arbitrement had been that the one shall make a release or shall be discharged or acquitted without speaking of the other this being on the one part only is a void arbitrement vide
my Furze And after Verdict for the Plaintiff it was moved in Arrest of Iudgment thâ—t these words were not actionable But it wâ—s said on the other side that to say thou art a Theef is actionable and the subsequent words are in the Copulative and enure as a confirmation of the precedent words But if it had been for Thou hast stoln my Furze this had been â—n explanation of the precedent words and therfore in that case the action would not have been And it was answered and resolved by the Court that the word and in some cases shall be taken as the word for and so it shall be in this case and therfore adjudged that the action lies Mich. 22. Jac. In the Star Chamber TWo men came Ore tenus into the Star Chamber for stealing of the Kings Deer and were fined a 100 l. a peece and three years Imprisonment unlesse it would please he King to release them sooner and before Fines in the Star Chamber for killing the Kings Deer they should be released of their Imprisonment to be bound to their good behaviour And it was observed by the Attorney-generall that the offence was the greater in regard that the King had but one darling pleasure and yet they would offend him in that And it was said by some of the Court that it was a great folly and madnesse in the Defendants to hazard themselves in such a manner for a thing of so small value as a Deer was The Lord President said that Mr. Attorney was the best Keeper the King had of his Parks in regard he brings the Offenders into this Court to be punished The Lord Keeper said that the Defendants in such a case being brought Ore tenus â—re not allowed to speak by their Counsell and yet these men have had their Counsell but it was Peters Counsellors meaning their sorrow and contrition at the Bar which much moved him so that if his vete might prevail he would set but 20 l. fine upon them In the same Term in the same Court THe Lord Morley and Sir Richard Mollineax being beyond Sea their Sollicitor in their names exhibited a scandalous Bill in the Star Chamber against the Bishop of Chichister and after their return this continued so for three years without any disclaiming therof by them and now the matter being questioned they said that it was not done with their privity But because they had not disclaimed the Fact before they were fined a 100 l. to the King and a 100 l. to the Bishop for Damages and the Bill was to be taken of the File The same Term in the same Court. Lewes Plaintiff versus Jeoffreys and others Defendants THe Plaintiffs Brother had been a Suitor to a woman which matter proceeded to a Contract and afterwards the Defendant Jeoffreys hapned to be a Suitor to her also wherupon being Rivalls they fell out and the Plaintiffs Brother called the Defendant Jackanapes which was taken very ill by the Defendant being a Iustice of Peace in the County of Worcester and the other being but a mean man in respect of him so that he told him that if he would meet him on Horse-back he would fight with him afterwards one of the Sons of the Defendant went to the said Brother being upon his own Land and gave him a mortall wound wherupon a friend on the behalf of the party wounded came to the Defendant being a Iustice of Peace and brought him a peece of his Skull to the end that his Son should be forth coming at the next Assises declaring to him the danger of death the man was in wherupon the Defendant took a Recognisance of 10 l. of his Son and of his sureties of 5 l. a peece to answer this at the next Assise And in the mean time the party died of the said wound and the Son did not appear at the Assises and the Iudges of Assise fined the Defendant 100 l. for taking such slender security for the appearance of his Son which was paid and yet notwithstanding the Defendant was fined 200 l. more for this offence and also 200 l. for his misdemeanor in his challenge albeit the Defendant A Challenge fined in the Star Chamber was of the age of 63 years and so it seems that he intended to fight with him But he being a Iustice of Peace who is Conservator pacis he did against his oath to do any thing which may tend to the breach of the Peace And for the other matter it was said by the Court that the Defendant being Father to the offendor it had been better for him to have referred this matter to another Iustice of Peace or at least to have had the assistance of another And the party being in such great danger of death his son was not bailable Hillary 1. Car. In the Kings Bench. Bowyer versus Rivet THe case was thus Sir William Bowyer 12. Jac. recovered against Sir Thomas Rivet in an Action of debt Sir William made his wife his Exceutrix and died the wife made Bowyer her Executor and died then Sir Thomas Rivet died Bowyer brought a Scire facias to have execution upon the Iugment against Sir Thomas Rivet the younger as Heir apparant to the Land to him descended from Sir Thomas Rivet who pleaded Riens per descent from Sir Thomas Rivet and it was found that he had two acres and a half of Land by discent and it was prayed by Goldsmith that Iudgment might be given against Sir Thomas Rivet generally for he said that this false Plea shall charge him and his own Lands and cited Plowden 440. where in debt against an Heir upon his false Plea his own Lands shall become liable to the debt and Co. lib. 3. 11. b. Sir William Herberts case where the case was upon a Scire facias against the Heir as it is in this case But on the other part it was argued by Richardson the Kings Serjeant Banks and all the Iustices that Execution shall be awarded in no other manner against the Heir then it should be against his Ancestor or other Purchasor to wit of a Moyety of that which he had by discent for as much as in this case he cannot be to this purpose charged as Heir but he ought to be charged as Ter-tenant and as a Purchasor and a Purchasor shall never hurt himself but his false Plea And Banks argued that the Heir in this case is charged as a Purchasor and the false Plea of a Purchasor shall never charge himself 33 E. 3. Fitz. Execution 162. and 6 E 3. 15. and that in this case he is charged as Ter-tenant appears by three reasons 1. Debt will not lye against an Heir but where he is bound as Heir but in this case Execution is to be sued against him as another Ter-tenant Dyer 271. 11 E. 3. 15. and in 27 H. 6. Execution 135. and Co. lib. 3. 12. b. That in Iudgment upon Debt or Recognisance the Heir is charged and
was given this day The same Term in the same Court. Goodwin versus Willoughby GOodwin brought an action upon the case against Joane Willoughby wife of Thomas Willoughby and upon non Assumpsit pleaded it being found for the Plaintiff it was moved in Arrest of Iudgment 1. That the Plaintiff shews that Thomas Willoughby was indebted upon account and doth not shew that Joane Willoughby is Executrix or Administratrix and yet that she promised to pay wheras in truth she hath no cause to pay for there is no consideration and so Nudum pactum Jermy for the Plaintiff for the first because it doth not appear for what cause he accounted I answer that this is but a meer conveyance And for the second that she does not suppose that the Feme is executrix c. But here is a good consideration which is that she shall not sue or molest and that he gave day for payment this is a sufficient consideration But Stone of counsell with the Defendant said that the first is the ground of the action and therfore he ought to shew for what he accounted Crew chief Iustice two exceptions have been taken 1. For the alledging the manner of the account which I conceive is good enough and he need not shew the cause of the account And as to the second because it doth not appear that she is Executrix or Administratrix and so no consideration and so no Assumpsit But here she assumes to be Debtor and makes a promise to pay which is an acknowledgment of the Debt by inference and therfore he conceived that the Assumpsit was good Doderidge Iustice for the first it is good enough yet Cum indebitatus existit is no good Assumpsit but here he shows a speciall way of Debt and it would be long and tedious to describe his account For the second there is no cause of action because it doth not appear that she is Executrix or Administratrix or Executrix of her own wrong If I say to one do not trouble me and I will give you so much this is not actionable for there ought to be a lawfull ground and for this cause the Declaration Where forbearance without cause of action is no ground of an Assumpsit is void for it is only to avoid molestation Give me time c. this is no good Assumpsit for forbearance is no ground of action where he hath no cause to have Debt Jones Iustice agreed in the first with them because a generall action upon the case sufficeth and in truth it is but an inducement to the action but for the other part he doubted and he cited one Withypools case an Infant within age promised to pay certain money he makes an Executor and dies within age the Executor saith to him to whom the promise is made forbear and I will pay you and there an action upon the case did lye against the Executor upon this promise and yet it was a void Contract but there was colour of action forbear till such a time now the other hath lost the advantage of his Suit But he gave no opinion Crew It is a violent presumption that he is indebted But by Doderidge here is no colour to charge her but only by inference that she is Executrix If a stranger saith forbear such a Debt of J. S. and I will pay it it is a good consideration for the losse to the Plaintiff and in this case it appears not that there is any cause and Broom Secondary said that Withypools case before cited was reversed in the Exchequer Chamber Jones If an Infant makes a promise it is void and he may plead non Assumpsit which Doderidge did not deny But upon his Obligation he cannot plead Non est factum for he said that he shall be bound by his hands but not by his mouth The same Term in the same Court Drope versus Theyar IN Debt by Drope against Theyar an Inne-keeper upon Issue joyned and a Verdict for the Plaintiff Bolstred moved in Arrest of judgment for the Defendant and the matter was that one Rowly who was servant to Drope lodged in the White Heart at S. Giles and there had certain Goods of his Masters which were stoln from him in the night and Drope the Master brought an action therupon and it was moved by Bolstred that the Plaintiff was without remedy 1. Because it was in an Inne in London for the Register 105. is Quando quis depraedatus euns per patriam which as he said could not be extended to an Inne in London 2. It ought to be an Inne as Inne-keeper 3. He ought to be as a Guest lodging and this appeareth in Culeys case in 5 Jac. in Celly and Clarks case which was entred Pasch 4. Jac. Rot. 254. It was adjudged that where the Guest give his Goods to his Host to deliver to him three daies after and the goods are lost that an action is not maintainable against the Inne-keeper for them and this was in an Inne in Uxbridge And in one Sands case where the Guest came in the morning and his Goods were taken before night he shall have an action against the Inne-keeper 4. The Goods ought to be the Goods of the party who lodgeth there for the words are Ita quod hospitibus damna non eveniunt and here the Master who brought the action was not Guest But admit the Master shall have the action yet he ought to alledge a custom that the Master shall have the action for the Goods taken from his Servant Trin. 17 Jac. Rot. 1535. Bidle and the Master brought an action for Goods taken from the Servant and there it was resolved that he ought to conclude that Pro defectu c. and apply the custom to him being Master Sec Co. Book of Entries 345. And that a custom that for other mens Goods in the custody of Guests the Owner shall have an action against the Inne-keeper if they be stollen Ob. This is the Common Law and therfore ought not to be alledged Answ Where a man takes upon him to shew a custom he ought to shew it precisely he cited Heydons case Co. lib. 3. 28 H. 8. Dyer 38. And it was said for the Plaintiff that Goods are in the possession of the Master which are in the possession of his Servant and so here the Master might have had action well enough 8 E. 4. my Servant makes a Contract or â—â—ies Goods to my use I am liable and it is my act By the Court an Inne in London is an Inne and if a Guest be robbed in such an Inne he shall have remedy as if he were Enns per patriam But the cheife point was whether the master shall have the action in the case where the Servant lost the goods and by Jones Justice in 26 Eliz. in C. B. upon the Statute of Hue and Cry it was resolved that if the Servant be robbed the Master may have the Action and so by him
shall it be in the case Doderidge Justice the Servant may have the Action also If the Servant be robbed of wares the Master or Servant may have an appeale 8. E. 2. Tit. Robbery two joynt Merchants one is Robbed both shall joyne in the Action and may also joyn in the appeal But it may be objected as Whitlock Iustice did that the Master is not Hospitans I say this is to no purpose A man put his Horse in the Stable and before he goes to bed or lodging the Horse is gone he shall have an action although he did not lodge there For the word transeuntes although he be at the end of his Iourney yet it is within the custom and he shall have action And by Crew if I send cloath to a Taylor and it is stoln from him the Taylor shall have an action of trespasse or the Owner Jones the case of Hue and Cry is a more stronger case then this is for there the Servant ought to swear that he is robbed and yet the Master shall have an action And for the word transeuntes all agreed that although he be at the end of his journey or at an Inne in London yet he is within the remedy of this Law And if a man stay in an Inne a moneth or a quarter of a year shall not he have an action if he lose his Goods Doderidge agreed that if a man be boarded in an Inne and his Goods are stoln he shall not have an action upon this Law And notwithstanding this objection judgment was given for the Plaintiff upon the Verdict Trin. Term 2 Car. In the Kings Bench. Sir William Buttons Case SIr William Button a Iustice of Peace brought an action for these words Sir William Buttons men have stoln Sheep and he spake to me that I should not prosecute them and it seems that the action did not lye because Words Sir William Buttons men have stoln Sheep and be spake to me that I should not prosecute them Sir William did not aver that he is a Iustice of Peace and it doth not appear in what County the said Felony was done 36 Eliz. One brought an action for these words A. is a cosening fellow and the greatest Pickpurse in Northamptonshire and there is not a Purse picked within 40. miles of Northampton but he hath a hand in it And the action did not lye because he did not aver that there were Purses cut Jones Iustice put this case One saith that A. is as strong a Thief as any is in Warwick Gaol he ought to aver that there is a Theef in Warwick Gaol or otherwise they are not actionable Doderidge put this case There is a nest of Theeves at Dale and Sir Iohn Bridges is the maintainer of them these are actionable because it implies maintenance Note that it appeared upon a motion which the Attorney-generall made against one Lane who is a Recusant in Northamptonshire that a Lease for years made by a Recusant of his own Lands after conviction if it be Bona fide will bind the King but if it be upon fraud and covin then it will not and Whitlock said that it is a common course for Recusants to make Leases after their Indictment and before conviction The same Term in the same Court The Case of the Major Bayliffs and Jurates of Maidstone IN a Quo warranto depending against the Mayor Bayliffs and Iurates of Maidstone in Kent Serjeant Finch of Counsell with them of Maidstone put the case briefly in effect thus In the Quo warranto against them it was ordered by the Court that they should have day to plead untill afornight after Trinity Term and the truth was that they had not pleaded accordingly wherupon Iudgment was entred in the Roll and the Writ of Seisin awarded and execution therupon and afterwards by a private order in the Vacation by the chief Iustice and Iustice Jones it was ordered that the Iudgment should be staid and the truth was that it was never entred amongst the Rules of the Court and therfore he prayed that the Iudgment might not be filed but that the last order might be observed and that they might amend their Plea Hendon Serjeant on the other side said that it could not be for by the Iudgment given the King was intitled to have the profits of Franchises which he shal not lose he cited the case which is in F. N. B. 21. Error in B. R. cannot be reversed the same Term before the same Iustices without a Writ of Error but otherwise it is in C. B. and he said that the same course was observed in Eyre there can be no pleading in Eyre after the Eyre determined and upon this he cited the case of 15 E. 4. 7. before the Iustices in Eyre if the Defendant does not come the Franchises shall be seised into the Kings hands nomine destinctionis and if the party who ought the Franchise doth not come during the Eyre in the same County he shall forfeit his Franchise for ever so here after Iudgement entred there can be no plea per que c. Finch we have order from the Court for stay of Iudgement here no perfect Iudgement was given and this is not without president and he cited one Chamberlains Case where the Iudgement was nigh to perfection c. but he did not put the Case Creve ch Justice in this case there was the assent of the Attorney generall who prosecuted the Quo Warranto and so the cases put by Hendon to no purpose Jones upon F. N. B. 21. J. took this difference true it is that the Kings Bench cannot reverse a Iudgement although it be in the same term without a Writ of Error but this is where error lies in Where the Kings Bench may reverse its owne judgmeÌ„t without Writ of Error and where not the same cause in the same Court as upon outlawry but if no error lies in this Court for the same cause but in Parliament then the Kings Bench may reverse the Iudgement without Writ of Error being the same term And the Iudgement here was ever of Record for the Roll untill it be fixed amongst other Rolls is no Record And for the Case of 15. E. 4. 7. it is not like our case in reason for when When a Roll â—s become a Record the Eyre is determined the power of the Iustices in Eyre is also determined but it is not so here for the Iustices have power from Term to Term But Noy argued further for the King that it is a Iudgement of another Term and Execution awarded upon it and said that it is without president that now it should be avoyded and upon the awarding of execution the King under his seal hath averred that judgement is given which cannot be falsified and for Chamberlains Case he said that there was an assent in it Doderidge the Question which now is moved is but this whether a Iudgement entered in a private Roll
as a memorandum and afterwards there is an order that the Iudgement shall not be filed if the Iudgement upon this shall be stayd and speaks to it and by him the Case of 15. E. 4. 7. is nothing to this purpose for Iustices in Eyre were Iustices by commission and they had not the custody of their Records and so it differs from this case And Jones Justice which was not denyed if a Iudgement be pronounced here and be not entered the Iudges may alter it the next Term. It was said by Noy in this case that all Franchises in England are against common Right and execution of Iustice and for the present purpose he cited one Sir John Wells Case where in a Quo Warranto the Defendant had day to plead or otherwise that judgement should be entered to seise and he failed to plead at the day and the Iudgement was not filed and yet he could not be relieved But it was sayd by some of the Iustices that this was a case of great extremity But by Hendon it was affirmed in the Exchequer in one Sandersons Case and in the principall case the matter was adjourned for a fortnight and ordered that the plea should be accorded Mich. Term 2. Car. in the Kings Bench. Sharp versus Rust IN an Action upon the Case upon an Assumpsit between Sharp Plaintiff and Walter Rust Defendant upon non-Assumpsit pleaded it was found for the Plaintiff and it was moved in arrest of judgement upon these words in the Declaration the Defendant being Father to the Plaintiffs Wife for whom the Apparrel was bought said to the Plaintiff deliver the Apparrel to my Daughter and I will pay for them and saith not to whom the payment shall be made And it was argued by Woobrich of Grayes-Inne that this is no sufficient cause to stay the Iudgement for by necessary implication and reference of the words precedent the certainty of the pers on appeareth to whom the payment ought to be made And he observed that in our Law the time the estate the thing and the person not being sufficiently expressed Where a thing incertain may be made certain both in time estate and person yet by necessary coherence and relation to matter precedent they are sometimes made certain enough 1. For the time Perkins P. 496. puts the Rule if a condition hath relation to an act precedent and no time is limited when it shall be done yet if ought to be done when the act precedent is done and therefore if I. S. be bound to me in 20 l. upon condition that if I enfeoff him of black acre that then he wil pay me 10 l. c. in this case presently when I have enfeoffed the obligor of black acre he ought to pay the 10 l. notwithstanding there be no time limited when it should be payd 2. For the thing being put incertainly yet the communication precedent makes this certain 30. H. 8. Dyer 42. in the Case of the Executors of Greenliffe where it is agreed that albeit it is not shown what thing is granted yet it shall be the Land of which the communication was 3. For the Estate although it be incertain yet sometimes it is made certain by the matter precedent as in the Case Co. lib. 8. A Stewardship was granted for life and afterwards an Annuity was granted for the exercise of that Office without declaring what Estate he should have in that Annuity and resolved that he should have the Annuity for life because he had the Office for life 4. For the person the consideration sometimes ascertains the person and therefore if land he given to one by Deed habendum sibi una cum filia donatoris in frankmariage this shall enure to both because the Feme is Causa donationis and by intendment of law the Land and the feme shal be given together to the man for the advancement of the Feme as it is Mich. 2. 3. Ph. Mary Dyer 126. a 4. E. 3. 4. Plow Com. 158. enfeoff him another and bind him and his heirs to warrant doth not say to whom he shall warrant yet the Feoffee and his heirs shall have advantage of this warranty for it cannot have any other intendment 6. E. 2. Voucher 258. 22. E. 4. 16. Kelleway 108. Co. lib. 8. Whitlocks Case In a Lease for years reserving rent it is the surest way to make the reservation to no person in certain but to leave it to the general intendment of the Law 15. H. 7. A man deviseth that his Land shall be sold for the payment of his debts and doth not say by whom they shall be sold by his Executors because they are lyable for the payment of his debts but if one devise that his land shall be sold saith not for the payment of his debts the devise is void because the Law doth not intend in this case to make the sale 40 E. 3. 5. 4. E. 3. Fitzherbert Obligation 16. Nota if a man be bound in debt or Covenant by writing and puts such a clause in the writing Et ad majorem hujus rei securitatem invenit fidei jussores quorum unusquisque in tot in solido se obligavit that although none speak there but the principall in the writing if the others put to their seals they accept that which the principal spake so become principal 2. E 4. 20. and here in our Case it appeareth that the Deed was so therefore it is reason that the Declaration should be so for there cannot be a material difference between the Declaration the deed especially being upon an agreement which is to be ruled according to the intention of the parties as it is in Plow Com. 140. a. In our Law if any parties be agreed upon a thing and words are expressed or written to make the agreement although they be not apt words yet if they have substance in them tending to the effect intended the Law shall take Intention of parties to be observed them of the same substance as words usuall for the Law regards the intention of the parties and here the intent appeareth that the assumption shall be mâ—de to the Plaintiff although there want expresse words and therefore he prayed Iudgement for the Plaintiff And afterwards the same Term Iudgement was given for the Plaintiff The same Term in the same Court. Beven versus Cowling IN an Action upon the Case Littleton mooved in arrest of Iudgment for the Defendant wherein the Case was this the Defendant assumed that if the Defendant would defer the payment of a bond in which one A. was bound to him and would not implead him upon it then he promised to pay it and he doth not say that he deferred the payment untill such a day and therefore this is no valuable consideration so that the action doth not lye for notwithstanding Action upon the Case upon a â—romise that if â—e would not sue such a
one he would pay it where good where not this he may implead him presently Mich 12. Jac Kebles Case A man promiseth to pay so much in consideration of a Lease at Will and it was holden no good consideration for by the same breath that he creates it he may defeat it Pasch 8. Jac. Austins Case A man promise that in consideration he would forbear another he would pay it and no time was limited and therefore it was holden no good consideration Trin. 38. Eliz. Rot. 523. A man promise quod non implacitabit and avers quod non implacitavit and because of the uncertainty it was holden no valuable consideration Doderidge Justice If there be no consideration at the time or no cause of Action the forbearance afterwards will not make it actionable and he said that it had been adjudged in this Court that a consideration to forbear for a little time is not good but by some to forbear for a reasonable time is good But in the principall Case upon the hearing of the Declaration read it appeared that it was that he should never implead him upon the said obligation so that if the Plaintiff brings an Action upon the obligation the Defendant here may have an Action upon the Case against him Also it was non implacitabit and this shall be taken indefinitely quod nunquam implacitabit and therefore the Iudgement was affirmed for otherwise the Plaintiff shall both take advantage of this promise and of the bond also and here he hath in a manner forsaken the benefit of his bond and hath betaken himselfe to the benefit of this Assumpsit By Jones and Whitlock Iustices if A. be bound to me and I enter into bond to him that I will not sue this Obligation I cannot sue him upon the first Obligation without forfeiture of my bond and by Doderidge if an Obligation be forfeited and I say to the Obliger do not sue the Obligor or do not implead him an Action upon the case lies against me The same Term in the same Court. Arnold versus Dichton IN an Action upon the Case and Non-Assumpsit pleaded it was found for the Plaintiff and Noy mooved in arrest of Iudgement that there was no consideration to maintain this Action the Case being thus Arnold having married the Daughter of the Defendents Testator the Testator promised to give him 40 l. and meat â—nd drink for a year and a Featherbed and Bolster and afterwards the Testator in consideration that the Plaintiff would Assumpsit forbear to sue him all his life for it promised that he should have as good a portion at his death as any of his children and the Plaintiff declares that he gave to one Tho. P. one of his Sons 200 l. and that he left him at the time of his death but 30 l. but when he gave to Tho. P. the 200 l. appeares not peradventure it might be in his life time and this promise doth not extend to that which he had given before as if a man be bound to keep a Goale and that no prisoner shall escape this only extends to a future keeping and future escapes and not to other escapes which were before True it is that sometimes the Law will alter the sense as in the Case of 32. H. 6. where a man is bound that his Feoffees c. And at another day Doderidge said that the first promise was but an inducement to the second and the Defendant hath pleaded Non Assumpsit to the last promise and then comes the Plaintiff and shews that he gave to such a one 200 l. and doth not shew when this was given and this may be before the promise and therefore I conceive the Declaration is not good Jones agreed that the Declaration is not good for admit that in this case he had given to all his children but one great portions before the said promise and had given a small portion to one after the promise the Plaintiff now shall have but according to the said promise and it is alledged here that he gave to such a one 200 l. which may be before the promise and therefore the breach not well laid Whitlock contra and that the Plaintiff shall have according to the best gift in this case whether it were before or after the promise and that upon the intention of the promise for the intention is that the Plaintiff should have as good a marriage or portion with his Daughter as any other of his children should have But by Doderidge this construction cannot be made without offering violence to the words for then daret should be for dedisset and for any thing which appeareth he had a portion before and this was but a superaddition Jones put this case I am bound to enfeoff J. S. of so much Land as I will enfeoff J. D. this extends not to a Feoffment which I have made to J. D. before but only to a Feoffment which I shall make to him afterwards which was not denied by Whitlock and it was adjourned The same Term in the same Court. Barker versus Ringrose BArker brought an Action upon the Case against Ringrose and declared that whereas he was of good fame and exercised the Trade of a Wool-winder the Defendant spake these scandalous words of him that he was a Words Thou art a bankrupt Rogue Bankrupt Rogue and it was moved in arrest of Iudgement that those words were not actionable for the words themselves are not actionable but as they concern an Office or Trade c. and it appeareth by the Statute of 27. E. 3 that a Wool-winder is not any Trade but is but in the nature of a Porter so that the Plaintiff is not defamed in his function because he hath not any also it is not averred that he was a Wool-winder at the time of the words speaking Jones Justice If one saith of a Wool-winder that he is a false Wool-winder action upon the Case lieth and it was demanded by the Court A Wool-winder wâ—at he is what a Wool-winder was and it was answered that in the Countrey he is taken to be a Wool-winder that makes up the fleece and takes the dirt out of it and a Wool-winder in London opens the fleeces and makes them more curiously up and in London they belong to the Mayn of the staple Doderidge If one saith of a Sher-man that he is a Bankrupt Action lyes and so it hath been adjudged of a Shoo-maker and note that if one saith of any man who by his Trade may become a Bankrupt within the In what case to call a man Bankrupt is actionable Statutes that he is a Bankrupt an Action lies as of a Taylor Fuller c. And the Court seemed to incline that in this case being spoken of a Wool-winder in London the Action lies But Mich. 3. Car. the Case being moved again the Court was of opinion that the Action could not lye and would not give
should be an exchaÌ„ge between them of the said Mannors because the Mannor of Gadmaston was the better Stroud covenanted with the Father and the Son to pay 1200 l. to the Father for the Demesnes of the said Mannor and Advowson and that at Michaelmas next insuing there should be a mutuall entry into the said Mannors and that in the mean time either of them should take the profits of their own MaÌ„nors and that they should deliver each to other their evidences and that Assurances should be made as Councel should advise the Plaintiff declare that they had performed all the Covenants which were to be performed on their part and that the Defendant had not paid the 1200 l. and that thereupon this action of Covenant was brought The Defendant protestando that the Plaintiff had performed the Covenants and had not produced their edidences c. for Plea saith that the Plaintiff after Michaelmas bargained and sold the Mannor of Gadmaston to J. S. and his Heirs upon which the Plaintiff demurs and he conceived that notwithstanding the sale after Mich. yet an action of Covenant lies for the 1200 l. but otherwise it had been if he had sold it before Mich. But it hath been objected that the money by the Covenant is to be payd pro the Mannor and therfore because the Defendant cannot have the Mannor he shall 〈◊〉 pâ—y the Money and for this 9. E. 4. 20. and 24. E. 3. 21. have been cited that pro implies a condition as pro servitio pro maritagio but these Cases do not resemble this case in reason because the fact to be done here rests upon an indiffinite time and the Defendant is to do the first Act the Defendant is bound to a certain time for the doing of this Act. For the first it is agreed that the Defendant shall pay 1200 l. and the Plaintiff agrees to make Assurances for this Mannor and that the Assurances should be made as Councel should devise and I conceive that the Defendant ought to procure the Councel to devise for mutuall Assurances ought to be made and either party ought to appoint what Assurances he would have and the one ought not to be a Carver to the other neither can one know what councel the other will have and upon this reason is the case 9. E. 4. 3. 4. and Plow 15. b. the Case of the Bell it shall be weighed by him who is to have the profit peradventure if it were in case of an Obligation to perform covenants there he ought to procure the Counsel for saving the penalty of the obligation but it is otherwise here in case of a Covenant Co. lib. 5. 22. b. 18. E. 3. 27. and 4. E. 3. 29. If a man be bound to be ready to levy a Fine such a day yet the other ought to bring the Writ of Covenant against him before that day for otherwise he cannot levy a fine But now the Law is altered for now fines are levied Writs of Covenant are sued out afterwards 17. E. 4. 2 per Pigot If I am bound to you in 20 l. to enfeoff you at such a day of such Land if you please to take the Feoffment you are bound to let me know your pleasure and here the Assurance is for the benefit of the Defendant and he cited Co. lib. 5. 23. and 7. E. 4. 13. 2. For the time this Assurance ought to be devised by Councel before Mich. or otherwise the Plaintiff shall be enforced to keep his Mannor all his life and shall be hindred of the sale of it for payment of his debts or other necessaries whatsoever And 17. E. 3. 1. liking ought to be shown in convenient time And it appears by the Articles that the time intended was before Michaelmas for every thing to be done by the Articles was to be done before Michaelmas Hill 37. Eliz. Rot. 99. B. R. between Mills and Parsons A man covenanted in consideration of 42 l. rent to be granted to him payable at Mich. and Lady day yearly to levy a fine of a Mannor to the use of c. and the assurance of the Rent is not made before Michaelmas and it was resolved that the Covenant was not performed for the grant of the Rent ought to be before Mich. for otherwise he could not have the benefit intended and cited also Dyer 347. and 20 Eliz. Dyer 361. and in this case there could be no execution of other Articles if the Councel did not devise them before Mich. But it hath been objected that the Plaintiff have not fully shown the performance of the Covenants of their part but only by implication albeit they have performed and they have not averred that the Defendant hath not devised Answ To which I answer that this is good enough but where I covenant to do an act upon a future contingent act to be done by another there I ougt to show it particularly but otherwise in this Case and this is for the benefit of the Defendant and therefore he ought to shew it and to this purpose is 3. E. 3 Fitz. Det. 157. and 18 E. 3. 4. c. Jones Iustice Suppose the Defendant had demanded the assurance after Mich and before the sale what shall be done Noy nothing can be done after Michaelmas and it was adjourned The same Term in the same Court. Sanders and others versus Meryton IN an Action of Covenant the case was this Amongst other Covenants in a certain Indenture made between Sanders and others to the Lessees and his two Lessors the Lessors covenant to discharge them of all Incumbrances done by them or any other person and the Plaintiff assign for breach that one of the Lessors had made a Lease and thereupon they brought this Action And Goldsmith moved in arrest of Iudgement that the breach was not well layd because it is onely layd to be done by one of them and the Covenant is to discharge them of incumbrances done by them which shall be intended joynt incumbrances Doderidge Iustice the Covenant goes aswell to Incumbrances done severally as joyntly for it is of all incumbrances done by them or any other person and so was the opinion of the other Iustices and therefore the exception was over-ruled The same Term in the same Court. Dickar versus Moland IN Replevin the case was thus A man made a Feoffment to the use of himselfe for life the remainder to his Son in taile which remainder over to the Defendant made conusance as Bayliff to the Son for 4 s. Rent due to him before the sayd time in which c. to wit 1. Jan. 18. Jac. which time was before the death of the Feoffor whereupon it was moved for the Plaintiff that the Avowry could not be good and Roll argued for the Defendant that it is good enough for the Ante predictum tempus quo c. is good enough and the scilicet is voyd for by this it appears that the Rent is due to
there ought to be a dislike of the Father also and in the Declaration it is also said that she dis-agreed Doderidge agreed with Jones that â—he Declaration is not good and that it is not warranted by the Covenant and that the breach is not well assigned The case is grounded upon the second covenant which consists upon a contingency which contingency is if there happen any discord between the Father and the Son c. the words are joynt and all ought to disagree True it is that in some cases a conjunctive shall be taken for a disjunctive but this is according to the matter and circumstances of the fact but in our case it shall not be taken disjunctively If the Father the Son and the Wife had disagreed then it is cleer that an Action of covenant lies but this is casus omissus and no provision for it Also it is only alledged in the Declaration that she disagreed whereas a mutuall disagreement between all ought to be alledged and therefore Judgement was given Quod quaerens mil. capiat per bellam But all agreed that the Wife might have boarded with Tooker the Father if she would but her new Husband could not AT thowe Sergeant took divers exceptions to an Inditement of forcible entry upon the Stat. of 8. H. 6. against Ployden and others for expelling one Syms from his Copi-hold and the principall exception was because disseisivit was not in the Inditement and in truth it cannot for albeit the Stat. of 21. Jac. cap. 15. gives power to Iudges and Iustices of Peace to give restitution of possession to Tenants for yeares and Copy-holders in which there shal be an entry or detainer by force yet the Stat. does not give an Inditement of forcible entry of copy-hold Noy a Copy-holder shal now have an Iditement of forcible entry but disseisivit shal not be in it for no Iury will find that because it is not possible because a Copy-holder hath no Frée-hold and yet a Copy-holder shall have a Plaint in nature of an Assize against a stranger but not against the Lord And at last the opinion of the Court was that the Inditement was good UPon a Capias directed to the Sheriff of London to take the body of J. S. the Capias was returnable die Jovis which was the day of All-souls and thereupon the Sheriff took the party but he returned that because the return of the Writ was upon a day that was not Dies Juridicus he suffered the party to go at large And the return was holden insufficient for by Doderidge the Writ was good and the taking and detaining of the party by vertue thereof was lawfull but yet he could not have the party there at the sayd day and therefore the Sheriff was compelled to bring the party into Court which the same day he did accordingly The same Term in the same Court A Man granted a Rent charge of 12 l. to one of his Sons out of the Mannor of D. by Déed and died the Grantée lost his Deed the Land is extended to I. D. by vertue of a Recognizance acknowledged by the eldest Son of the Grantor the Grantée sue for his Annuity before the Councell of York to be relieved in equity for that in respect of the losse of the Déed he could not have remedy at the common-Law and J. D. the Conuzée obtained a prohibition out of this Court upon this surmize that although the Councel of York should make a Decree that he should pay the said Annuity yet it should be no discharge for so much against the Conuzor because their Decrée was no legall eviction Now came Smith of the Temple and prayed a Precedendo for the Grantée to the Councel of York and the opinion of the whole Court was that a Decrée there being no legall eviction shall not be a discharge for so much against the Conuzor Doderidge the Grantée of the Rent-charge having now lost his Déed can have no remedy in equity for in this case Equitas sequitur legem and of the same opinion were Jones and Whitlock but by Doderidge which was not denied if the Grantee had lost the Deed by a casuall losse as by firâ— c. in such a case he shall have remedy in equity and he sayd that in the beginning of King James when Egerton was Lord Chancellor there was such a Case in Chancery A Grantee of a rent-seck had seisen of it so that he might have an assize and he devised it to J. S. the Devisée sued in Chancery to have his Rent and seizen of it and he could have no remedy for it in Chancery And this was one Malleryes case The same Term in the same Court ONe Hebborne was indited for stopping a way c. and it was mooved that the inditement was insufficient because it is not layd that it was communis via but only that it was a way to the Church and per Curiam it was good enough and by Jones Iustice the Inditement is good enough although there wants vi armis because he who is supposed to stop the way is owner of the Land The same Term in the same Court AN Action upon the Case upon a promise was brought in the Town of Northampton and the Consideration alledged was that if the Defendant here in the Writ of Errour would discharge Bagnot of Execution c. that then the Plaintiff here in this Writ of Errour promised to pay him eleven pounds and there the Defendant pleaded quod exoneravit illum de Executione relaxavit And Bolstred for the Plaintiffe moved this for Errours that the Plaintiffe in the inferiour Court did not shew by what manner of release it was nor that it was by writing for this being the Consideration upon which the Action is grounded ought to be put in certain Mich. 15. Iac. Staple and King Execution of a consideration ought to be shown 35 H. 6. 19. a discharge ought to be shown in certain 22 E. 4. 43. the Lord Lisles Case and Mich. 16. Iac. in this Court Liverel and Rivets Case which was entred Trin. 16. Iac. Rot. 32â— in an Action upon the Case upon a promise upon issue joyned it was found for the Plaintiffe and it was moved in arrest of Judgement because the Consideration was that the Plaintiffe should discharge one Ogle and he declares that he did discharge him and thereupon he brought this Action and because he declared but generally quod exoneravit the Judgement for that very cause was stayed and 36 Eliz. one covenanted to make an assurance and pleaded generally that he had assured and resolved that it was not good and in Rosse and Harvies Case this Term which was entred Trin. 2 Car. Rot. 1408. In Covenant the Defendant covenanted to give security the Defendant pleaded that he offered security and resolved that it was not good per que c. Jermy for the Defendant that the plea is good enough for a Release by Peroll is sufficient I
albeit he died before the day of payment because this was a summ in grosse limited to be paid to the said Thomas at a certain time But if it shall be taken for a Condition in William he thinks cleerly that the said William ought to have given notice to the Executrix of the said Thomas before he had made his first entry into the Land of the Ten. when he intended to make his entry so that the Executrix might be there at the same time to have made demand of the money which ought to have been done or otherwise there cannot be a refusall in the said William and without his refusall or other default in him the Condition cannot be broken if it had such a relation as to make the payment as George ought to do it And so the Executor of Thomas cannot have notice when William will make his first entry into the Land if he do not give him notice of it and therfore if it shall be a Condition it had been broken on the part of William for want of giving notice to the Executor of the time of his first entry wherby the Executor might have notice of the time to make his demand because without a demand refusall cannot be and the Executor is excused to make demand when he had no notice of the time and therfore the default of William in not giving notice of it shall be taken against him as strongly as if he had made a refusall to pay upon demand for if notice had been given to the Executor and he had demanded the money and William had said nothing to it but omitted to pay it yet this shall be a refusall in Law But of this nothing appeareth in the Verdict whether the Executor had notice given to him or not nor nothing mentioned in the Verdict whether any demand or refusall was made of the money or not and therfore the Verdict as to these points is incertain to judge upon whether it shall be taken to be a Condition in William But it seems as the Verdict is that Iudgment ought to be given against the Plaintiff for the conclusion of the Verdict is upon the entry of the Defendant whether this be lawfull or not and not upon the expulsion or whether upon the other Moyetie his entry was lawfull in right of the said William because they were Tenants in Common 3. IN Trespasse of Assault Battery and Imprisonment made such a day at in the Countie of Cornwall brought by against The Defendant saith that he was Constable of the same Town and that the Plaintiff the said day year and place brought an Infant not above the age of ten daies in his armes and left him upon the ground to the great disturuance of the people there being and that he commanded the Plaintiff to take up the said Infant and to carry it from them with him which the Plaintiff refused to do for which cause he quietly laid his hands upon the Plaintiff and committed him to the Stocks in the same Town where he continued for such a time untill he agreed to take up the Infant again which is the same Assault Battery and Imprisonment of which the Plaintiff complains upon which the Plaintiff demurred Fennor was of opinion that that which the Constable did was lawfull and that it is hard that an Officer shall be so drawn in question for it for this shall be an utter discouragement to good Officers to execute their Offices as they ought to do Popham A Constable is one of the most ancient Officers in the Realm for the conservation of the Peace and by his Office he is a Conservator of the Peace and if he sees any breaking of the Peace he may take and imprisen him untill he find surety by obligation to keep the Peace And if a man in fury be purposed to kill maime or beat another the Constable seeing it may arrest and imprison him untill his rage be passed for the conservation of the Peace And if a man layes an Infant which cannot help it self upon a Dunghill or openly in the field so that the Beasts or Fouls may destroy it the Constable seeing it may commit the party so doing to Prison for what greater breach of the Peace can there be then to put such an Infant by such means in danger of its life And what diversity is there between this case and the case in question for no body was bound by the Law to take up the Infant but he which brought it thither and by such means the Infant might perish the default therof was in the Plaintiff and therfore the Action will not lye And therupon it was agreed that the Plaintiff take nothing by his Writ Hayes versus Allen. 4. TErm Pasch 33 Eliz. Rot. 1308. A Cui in vita was brought in the Common Pleas by Ralph Hayes against William Allen of a Messuage with the Appurtenances in St. Dunstans in the East London in which it was supposed that the said Wil. had no entry but after the demise which John Bradley late husband to Anne Bradley Aunt of the said Ralph whose heir the said Ral was made to Tho. Allen and Jo. Allen and counts accordingly shews how Cosin and Heir to wit Son of Wil. brother of the said Anne Wil. Allen traverse the Demise made to the said Tho. and Jo. Allen and at Nisi prius it was found that the said Jo. Bradley and Anne his wife was seised in their demesn as of fee in right of the said Ann of a Messuage in S. Dunstans aforesaid containing from the North to the South 18 foot and from East to West 12 foot and a half and being so seised during their Marriage by their Deed sealed with their Seals enfeoffed the said Tho. Allen and Jo. Allen therof to hold to them and their heirs to the use of the said Jo. Bradley and Anne his wife for their lives and afterwards to the use of the Church-wardens of S. Dunstans Lond. and of their successors for ever to the use of the poor of the same place and that Livery was made accordingly and that the said Deed was inrolled in the Chancery at Westm and that afterwards the said Anne died and that Jo. Bradley survived her died and that the right of the said Mess descended to the said Ra. as cosin and heir of the said A. And that Sir W. Allen K. was seised of a peece of land in S. Dunst aforesaid containing 6 foot 4 inches contigious and adjacent to the said Mess late the said Jo. Bradleys and A. his wife in his demesn as of fee And that the said Sir Wil. after the said feoffment and before this Writ purchased utterly drew away the said Messuage late the said John Bradleys and Ann his wife and drected a new house upon the Land of the said Sir William and upon part of the Land upon which the other house stood containing from the North to the South thirteen foot from the East
one part at one time and another part at another an Action of Wast may well lye Albeit Fitzherbert and Brook seem therin to be of a contrary opinion and that severall Actions of Wast ought to be in that case And the exception was taken because the Iudgment was entred that he shall recover the place wasted Per visum Jurator praedict wheras they had not the view of it in this case for this should be where it is given upon a Writ awarded to enquire of the Wast upon default made at the grand Distresse whereas here the Wast is not denied but acknowledged But as to this severall Presidents were shewn the one upon Demurrer for part Hill 1. Mariae Rot. 301. and another Tr. 31. H. 8. Rot. 142. in an Information in both which Cases the Iudgment was entred as here to wit Per visum Jur. praedict and yet in these the Wast was as acknowledged Whereupon it was ordered that the Iudgment should be affirmed 3. In an Ejectione firmae brought by Sir Moyle Finch Knight Plaintiff against John Risley Defendant for a Messuage and a Mill in Raveston in the County of Buckinghamshire the case for the matter in Law appeared shortly to be this The King and Queen Philip and Mary by their Letters Patents dated the eight of July 3. 4. of their Raign made a Lease of the Reversion of the Mannor of Raveston of which this was parcell to Sir Robert Throgmorton for seventy years from such a Feast after the death of the Countesse of Ormond who then had it for her life rendring yearly 73 l. 13 s. payable at the Feasts of Saint Michael the Arch-angel and the Annunciation of our Lady at the receit of the Exchequer by equall portions with a Proviso that the Lease shall cease if the said Rent or any part therof were arrear and not paid at the said Feast or a certain time after the Reversion descend to the now Queen and the said Countesse died 7 Eliz. part of the Rent then payable was not paid at the day nor within the time limited by the Proviso afterwards Queen Elizabeth by her Letters Patents dated 30. May 30 Eliz. granted the said Mannor to the said Sir Moyl and one Awdeley and their Heirs in Fee with a clause in it that the Letters Patents shall be good notwithstanding there be not any recitall of any Leases or Grants at any time before that made by her or any of her Progenitors after which an Office is found for the Queen that the Rent was arrear and not paid as before after which the said Sir Moyl and Awdeley assured the said Mannors by bargain and sale to Sir Thomas Hennage who demised the said Messuage and Mill to the said Sir Moyl upon whom the said Risley entred in right of the said Lease made by the said King Phillip and Queen Mary under Thomas Throgmorton who then pretended to have the term of the said Lease from Sir Robert his Father The case was well argued at the Bar and now at the Bench where Fennor moved first Whether it were a Condition 2. Whether an Office were requisite 3. Whether this Office found comes soon enough for time For the first he conceived that it was a conditional Limitation for a Limitation is that which limits an Estate certain oâ— doubtfull as Quandiu in manibus nostris fore contigerit quamdiu amicus sit or dummodo solverit And there dummodo was a Condition as appeareth 5 Ass plit 9. 2. Ass a Grant made to J. S. and his Heirs tam diâ— as the Grantor and his Heir shall enjoy such a Mannor this is a Limitation and a Limitation alwaies determines the Estate but a Condition albeit it be broken during the Estate yet it doth not determine the Estate and so it is of a conditional Limitation and therfore t is not in the King untill an Office be therof found for the King submits himself to the Law for Bracton saith Quod non debet judicare sed secundum legem and his Prerogative is so excellent that he cannot take a part with any thing but by matter of Record neither can he draw the Right or Possession of any one in question upon a bare surmise but by Office or other matter of Record for a Record alwaies carries credit with it And there is no diversity where two matters are limited in Deed and where one is limited in a Deed and the other by the Law And the contrary objections are easily answered for when the Tenant in tail of the King dies without Issue it is in the King without Office because the Law does not help them which contemn it But in case of an Office which is forfeited it is in the King to dispose without Office because the King is not to have the Office it self but the disposition of it and yet it is to be defeated by Scire facias in the Chancery If a Mill be demised for life upon condition that he shall not let it but to a Milner and he breaks the Condition in case of the King there must be an Office to avoid it and there the Office entitles the King to the Condition and not to the Entry for after the Office it is not in the King untill Entry And here the Rent may be paid to the Kings Bayly in the Country which is matter in fait and therfore shall not be defeated without Office And here the Office comes too late to give any advantage to the Patentee for the King cannot grant a Title of Entry before Office no more then the Assignes of a common person can take advantage of a Condition broken in the time of the Grantor of which the Grantor did not take advantage in his time And if the Queen makes a Lease durante beneplacito the Patentee shall not avoid it as it appears in the Lord Burgleighs case and therfore the Office herâ— shall not help the Patentee but the Queen for the mean profits for although nullum tempus occurrit Regi yet the Patentee shall not take advantage of this Prerogative Clench agreed cleerly that it was a Limitation but yet that it is at the Queens liberty to avoid or make it good for perhaps the Rent is better then the value of the Land and upon this reason a Lease from the King Probiâ— hominibus de dale or to a Monk rendring rent is good which otherwise had been meerly void And by the Office found the Election of the Queen appeareth without which the Lease is to continue and therfore the Patentee shall not defeat that which happened in the Queens time before Popham to say that the Office helps the Queen for the mean Profits and that now the Patentee shall not take advantage to avoid the Lease is too absurd for the Queen cannot take advantage to have the mean Profits but in respect of the avoidance of the Lease And if the Lease were made void or determined against the Queen it shall not
such Estates that the Law allows them to be good against the Lords themselves they performing their Customs and Services and therfore are more commonly guided by the guides and rules of the common Law and therfore as appeareth in Dyer Tr. 12. Eliz. Possessio fratris of such an Estate facit sororem esse haeredem And to say that Estates of Copyhold Land are not warranted but by custom and every Custom lies in Vsage and without Vsage a Custom cannot be is true but in the Vsage of the greater the lesser is alwaies implyed As by Vsage three lives have been alwaies granted by Copy of Court Roll but never within memory two or one alone yet the grant of one or two lives only is warranted by this Custom for the use of the greater number warrants the lesser number of lives but not è converso And so Fee-simples upon a Limitation or Estates in tail are warranted by the equity of the Statute because they are lesser Estates then are warranted by the Custom and these lesser are implyed as before in the greater and none will doubt but that in this case the Lord may make a Demise for life the Remainder over in Fee and it is well warranted by the Custom and therfore it seems to them that it is a good Estate tail to John Gravenor and a good Remainder over to Henry his Brother and if so it follows that the Plaintiff hath a good Title to the Land and that Iudgment ought to be given for him And for the dying seised of Elizabeth they did not regard it for she cannot dye seised of it as a Copyholder for she had no right to be Copyholder of it And by the dying seised of a Copyholder at common Law it shall be no prejudice to him who hath right for he may enter But here in as much as she cometh in by admittance of the Lord at the Court her Occupation cannot be fortious to him and therfore no descent at common Law by her dying seised for it was but as an Occupation at Will But if it shall not be an Estate tail in John Gravenor as they conceive strongly it is yet for the other causes alledged by Gawdy and Clench Iudgment ought to be given for the Plaintiff and the Remainder which is not good shall not prejudice the Fee-simple conditionall granted to John which is no more then if the Surrender had been to the use of Iohn Gravenor and his Heirs the Remainder over because that we as Iudges see that this cannot be good by Law and therfore not to be compared to the case where the Custom warrants but one life and the Lord grants two joyntly or successively there both the one and the other is void And this is true because the custom is the cause that it was void and not the Law and also it is a larger Estate then the Custom warrants which is not here and upon this Iudgment was given that the Plaintiff shall recover And by Popham it hath been used and that upon good advice in some Maâ—nors to bar such Estates tails by a common Recovery prosecuted in the Lords Court upon a Plaint in nature of a Writ of Entry in the Post 2. JUlius Cesar Iudge of the Admiralty Court brought an Action upon the Case for a Slander against Philip Curtine a Merchant-stranger for saying that the said Cesar had given a corrupt Sentence And upon not guilty pleaded and 200. marks Damages given it was alledged in arrest of Iudgment where it was tryed by Nisi prius at the Guildhall by a partiall Inquest because that upon the default of strangers one being challenged and tryed out a Tales was awarded De circumstantibus by the Iustice of Nisi prius wheras as was alledged a Tale could not have been granted in this case for the Statute of 35 H. 8 cap. 6. which give the Tales is to be intended but of commontryals of English for the Statute speaks at the beginning but of such Iuries which by the Law eught to have 40 s. of Free-hold and wills that in such cases the Venire facias ought to have this clause Quorum quilibet habeat 40 s. in terris c. which cannot be intended of Aliens which cannot have Free-hold And it goes further that upon default of Iurors the Iustices have authority at the Prayer of the Plaintiff or Defendant to command the Sheriff or other Minister to whom it appertaineth to make a return of such other able persons of the said County then present at the same Assises or Nisi prius which shall make a full Iury c. which cannot be intended of Aliens but of Subjects and therfore shall be of tryals which are onely of English and not of this Inquest which was part of Aliens And further the Tales was awarded only of Aliens as was alledged on the Defendants part but in this point it was a mistake for the Tales was awarded generally de circumstantibus which ought alwaies to be of such as the principall Pannell was But Per Curiam the exceptions were disallowed for albeit the Statute is as hath been said yet when the Statute comes to this clause which gives that a Tales may be granted by the Iustices of Nisi prius and is generally referred to the former part of the Act for it is added Furthermore be it enacted that upon every first Writ of Habeas Corpora or Distringas with a Nisi prius c. the Sheriff c. shall return upon every Juror 5 s. Issues at the least c which is generall of all And then it goes further And wills that in every such Writ oâ— Habeas Corpora or Distringas with a Nisi prius where a full Jury doth not appear before the Justices of Assise or Nisi prius that they have power to command the Sheriff or other Minister to whom it appertains to nominate such other persons as before which is generall in all places where a Nisi prius is granted and therfore this is not excepted neither by the Letter nor intent of the Law And where it is said such persons by it is to be intended such as the first which shall be of Aliens as well as English where the case requires it for expedition was as requisite in cases for or against them as if it were between other persons And Aliens may well be of the County or place where the Nisi prius is to be taken and may be there for although an Alien cannot purchâ—se Land of an Estate of Free-hold within the Realm yet he may have a house for habitation within it for the time that he is there albeit he be no Denison but be to remain there for Merchandise or the like And by Gawdy where the default was only of strangers the Tales might have been awarded only of Aliens as where a thing is to be tryed by Inquest within two Counties and those of the one County appear but not those of the other the
Tales might be of the other County only Davies versus Gardiner 3. AN Action upon the case for a Slander was brought by Anne Davies against Iohn Gardiner That wheras there was a Communication of a Marriage to be had between the Plaintiff and one Anthony Elcock the Defendant to the intent to hinder the said Marriage said and published that there was a Grocer in London that did get her with Child and that she had Vide this case reported Cook lib. 4. 16. b the Child by the said Grocer wherby she lost her Marriage To which the Defendant pleaded not guilty and was found guilty at the Assises at Aylesbury to the Damages of 200. marks And now it was alledged in Arrest of Iudgment that this matter appeareth to be meerly spirituall and therfore not determinable at common Law but to be prosecuted in the spirituall Court. But per Curiam the Action lies here for a woman not maried candot by intendment have so great advancement as by her Marriage wherby she is sure of maintenance for her life or during her Marriage and Dower and other benefits which the temporall Laws gives by reason of her Marriage and therfore by this slander she is greatly prejudiced in that which is to be her temporall advancement for which it is reason to give her remedy by way of Action at common Law As if a woman keep a Victualling house to which divers of great credit repair wherby she hath her livelyhood and one will say to her Guests that as they respect their credits they take care how they they use such a house for there the woman is known to be a Bawd wherby the Guests avoid her house to the losse of her husband shall not she in this case have an Action at common Law for such a slander It is cleer that shee will So if one saith that a woman is a common Strumpet and that it is a slander to them to come to her house wherby she looseth the adâ—antage which she was wont to have by her Guests she shall have her Action â—or this at common Law So here upon these collaterall circumstances wherby it may appear that she hath more prejudice then can be by calling of one Harlot and the like And Iudgment was given for the Plaintiff Hillary Term 36 Eliz. in the Kings Bench. IN Michaelmas Term 33 34 Eliz. Rot. 181. William and Joane his wife Administratrir of Andrew Stock brought an Action upon the Case upon an Assumpsit made to the Intestate for the payment of 5 l. to William Stock who imparled untill Tuesday next after Octa. Hillary next which was the 24th day of January and then the Defendâ—nt demanded Oyer of the Letters of Administration which were entred in haec verba Wherby it appeareth that the Letters of Administration were committed to the said Joane by Thomas Taylor Batchelor of Law Commissary to the Bishop of London c. wherby the Defendant pleaded that after the last continuance â—he said Letters Patents of Administâ—ation sealed with the Seal of the Vicar Generall of the said Bishop which he useth in this behalf and brought here into Court bearing date the 27th day of January 1591. which was three daies after the continuance committed the Administration to the said Defendant And pleaded further the Act of 37 H. 8. which sayes that it shall be lawfull hereafter for any person being a Doctor of the Law to be Chancellor Commissary or to exercise Ecclesiasticall Iurisdiction albeit he were a meer Lay person so that such a person be a Doctor as aforesaid and avers that at the time of the committing of the Administration to the said Joane the said Thomas Taylor was a meer Lay person and not Doctor Legis civilis nec minister allocatus according to the Laws of the Church of England wherby he had no lawfull power to commit the Administration Vpon which it was demurred generally and by all the Court the Plaintiff had Iudgment to recover for we are to consider what our Law was in this case before this Statute of 37 H. 8. And albeit a Doctor then affirmed that the Canon Law was that there was a meer nullity in such Administration so although the party that did it not being a Clark nor Doctor according to the Stat. of 37 H. 8. yet all the Iustices agreed that the Administration so committed will be adjudged in our Law to be of force and effect being shewn under the Seal of the Officer and committed by him who is reputed the Officer who ought to do it and is invested in the Office untill it be avoided by sentence and yet such an avoidance shall not make a mans act to be made void no more then if a meer Lay-man be presented to a benefice albeit this be a meer nullity in our Law and void yet we adjudge the Church full according to the publike admission constitution and induction and not according to the capacity of the person which is a thing secret untill such a one be deprived for it by sentence in the spirituall Court and yet the Church shall be in our Law void but from the time of deprivation of which notice ought to be given to the Patron So here he remains as to our Law an Officer untill his authority be defeated by sentence of the spirituall Court otherwise great mischief will happen for an infinite number of Administrations may be drawn in question by Averment that he who granted them was a meer lay person and so make such Garboils in the Common-wealth which is not to be suffered for the inconveniency which will happen by it and therfore our Law which is founded upon reason shall judge of it according to the open appearance of the Officer to wit that he hath a grant made to him and not according to the private capacity of the person and this is not altered by the said Statuts which is made in affirmation of it and makes the authority of a Doctor of Law absolute not to be defeated by the Civill or Canon Law which is not in the other case But yet it doth not make this case of worse condition then it was at Common Law And by all the pleading of the Administration committed to the Defendant is not good because it appeareth by the date of it that it was made after the day of the last continuance and therfore could not have been pleaded untill a new continuance after And by the Doctor the last Administration does not avoid the first but in case where there is an especial revecation of the first But they did not speak of the doublenesse because the Demurrer was generall and not speciall and also because the other matters were so cleer 2. IN Trespasse for carrying away certain Loads of Hay the case hapned to be this The Plaintiff pretending Title to certain Hay which the defend had standing in certain Land to be more sure to have the Action passe for Property him
in making pursuit And it is not the form of the pleading to alledge that he pursued him freshly and had him alwaies in his view untill he re-took him but only that he pursued him freshly and took him in this fresh pursuit without saying any thing that he was in his view and therfore his being out of the view of the Sheriff is not materiall in the case but the fresh pursuit and the taking of him in this pursuit Then Coke moved that the Bar was not good because he doth not shew where he made the pursuit so that he might agres to answer that which is alledged by the Plaintiff to wit his being at large at London and therfore the Bar not being good Iudgment shall be given against the Defendant for the insufficiency of his Bar for a Repleader shall not be in case of Demurs as it hath been adjudged here very lately and also in the Common Bench. To which it was answered by the said Iustices That if the Bar be insufficient in matter so that it may appear by it that the Plaintiff hath sufficient cause of Action which in matter is not sufficiently avoided by the Bar Judgment shall be given for the Plaintiff upon the Bar if the Replication be sufficient and no Repleader but if the Bar be sufficient for the matter and insufficient for the form only as it is here there before the Statute of Eliz. for pleading there shall be a Repleader but now because no Demurrer was upon the Bar but a Replication made to it therfore by Popham no advantage shall be taken of the Bar for matter of form which is admitted by the party and no advantage taken therof according to the Statute And they all agreed that the Sheriff albeit he did not make fresh pursuit upon the escape may yet take re-take the Prisoner who escaped from him out of Execution for the Prisoner shall not take advantage to avoid the Execution and therfore in respect of the Plaintiff who yet may accept the Prisoner to be in execution the Sheriff may re-take the Prisoner But if the Plai had recovered against the Sheriff before for the escape then the Sheriff for his Indempnity cannot re-take him but is put to his Action upon the Case against the Prisoner for the Sheriff hath no colour in such a case of escape to retake him but in respect and for the advantage of the Plaintiff who had Iudgment against the Prisoner and not in respect of the private wrong done to himself of which he hath no Iudgment and as it is now the Replication not being good by Popham Iudgment ought to be given against the Plaintiff But by assent it was ordered that the Defendant shall put in new Bail and that upon it he shall plead anew But how shall it be if the Sheriff do notmake fresh Suit and re-take him And afterwards he at whose Suit he was in Execution recovered against the Sheriff may the Prisoner have an Audita querela upon the matter Vpon an Assembly of all the Iustices at Serjeants-Inn in Fleetstreet with the Barens of the Exchequer it was cleerly agreed by them all but two who at the beginning made some doubt of it but at the end assented also If in the night the house of any be broken with an intent to steal any thing being in the house although no person be in the house at this time yet this is Burglary for the Law is that every one shall be in security in the night as well for their Goods as their persons which be in the house And if a Church be broken in the night for the stealing of any thing in it this is Burglary though no person be in it at this time And so hath the Law alwaies been put in execution and in all the Books which speak of Burglary it is not mentioned that any person ought to be in the house but that it is Burglary the Messuage being â—eckâ—n in the night to the intent to kill any person thâ—â—e or to the intent to steal any thing out of it And the case that of late time it hath been put in the Inditements of Burglary that some person was then there c hath been because that in such cases of Burglary Clergy was taken away but now by the Statute of 18 Eliz. Clergy is taken away in every case of Burglary And the ancient Presidents are Quod domum of such a one Nectanter Felonice burglariter fregit without making mention that any person was then in it or making mention that it was Domus mansionalis of any And it may be a Mansion House albeit no person then inhabit in it And agreed that hereafter it shall be so put in execution by all the Iustices See this more fully hereafter Trin. 36 Eliz. Pl. 1. in this Book AT Tres Paschae this Term there were made for Serjeants at Law viz. Lewkenor Savage and Williams of the Middle-Temple Heale only of the Inner-Temple Kingsmill Warburton Branthwaite and Flemming of Lincolns-Inn and Daniel and Spurling of Grayes-Inn And all the Iustices were assembled in the Middle-Temple Hall the Wednesday past Mâ—nsem Paschae being the second day of May where the two chief Iustices and chief Baron sate upon the Vpper-Bench of the same Hall in their Scarlet Robes with their Collers of S. S. and every one of the other Iustices and Barens in their Ancienty one on the one side and the other on the other side in their Scarlet Robes also and then came the new Serjeants in their black Gowns before the Iustices there the two eldest being put in the midst before the chief Iustice of England and so every one of them one on the one side and the other on the other side according to their Ancienty and every one of the said Serjeants having one of his Servants behind him at his back with his Masters Scarlet Hood and Coife upon his arms And therupon the said chief Iustice made his Speech in this manner IF men will enter into a due consideration upon what grounds the Laws of this Realm have their Original Foundation and what good effects are wrought through the due execution of the same they might say and that justly that the profession therof is both an honest and honourable Profession The Laws are derived partly from the law of God and partly from the Law of Nature From the Law of God in that it ordaineth means how the people may be truly instructed in the knowledge and fear of God How they should demean themselves towards their Soveraign and Prince How they ought to live one with the other and how to be defended from oppressions and injuries From the Law of Nature in that it provideth how each man may defend himself that he may live by his own labours or otherwise according to his profession or calling That he may secure his Posterity of that which he hath gathered together by his industry and that man with man
not properly said an Use untill that it be said in Esse to take the Profits themselves But I am to turn this Argument against him who made it for if it be so the Use can never be in suspence and iâ— so it follows that no Possession by means of any such Use can be in suspence but staies where it was before to be executed when the Use happens to be in beeing But as to that that a Reversion or Remainder may be of that which we call an Use so also may such a Use be in suspence in the same manner as the Possession it self but not otherwise And as to Cramners Case formerly put the Law is so because nothing appeareth in the case to be done to the disturbance of this contingent Vse in the interim before it happen But upon the Case put of the Lady Bray upon which it hath been so strongly relied it was thus The Lord Bray made an assurance of certain Lands to the use of certain of his Councell untill the Son of the said Lord Bray should come to the age of 21. years for the livelyhood of the said Son and of such a Wife as he shall marry with the assent of the said Councell and then to the use of the said Son and of the said Wife and of the Heirs of the body of the said Son The Father dies the Son was become in Ward to the King after which one of the said Councellors dies the King grants over the Wardship of the said Son after which the said Lord Bray by the assent of his Guardian and of the surviving Councellors marries the Daughter of the then Earl of Shrewsbury after which the Husband aliens the same Land to one Butler and dies and upon Action brought by the said Lady against the said Butler for the same land she was barred by Judgment and upon what reason because she was not a person known when the Statute was made which must be in every case of a Freehold in Demesne as well in case of an Use as in case of a Possession And therfore a Lease for years the Remainder to the Heirs of I. S. then living is not good and the same Law of an Vse And so it was agreed by all the Iustices very lately in the case of the Earl of Bedford but in these Cases it remaineth to the Feoffor and because it doth not appear at the time of the assurance who shall be the Wife of the said Son so that there was not any to take the present Free-hold by name of the Wife of the Son she takes nothing by the assurance but this reason makes for our side to wit That if there were none to take the Free-hold in Demesne from the Use when it falleth he shall never take it The other reason in this Case was because she was not married by the consent of all the Counsellors for that one was dead nor according to the power given by the agreement but by the authority of the Guardian that the power which the Father had upon his Son was ceased And Nota That by a Disseisin the contingent Use may be disturbed of his Execution but there by the regresse of the Feoffee oâ— his Heirs when the Contingent happen it may be revived to be executed But by the release of the Feoffee or his Heirs the Contingent in such a case by Popham iâ—â—â—â—red oâ— all possibility at any time to be executed And to that which hath been said that the generall and universall Assurances of men throughout all the Realm at this â—ay arâ— by means of Vses and that it shall be a great deal of danger and inconvenience to draw them now in question or doubt and that it now trembleth upon all the Possessions of the Realm and therfore it shall be too dangerous to pull up such Trees by the roots the Branches wherof are such and so long spread that they overshadow the whole Realm Popham said That they were not utterly against Uses but only against those and this part of them which will not stand with the publike Weal of of the Realm and which being executed shall make such an Estate which cannot stand with Common Law of the Realm or the true purport of the Statute and therfore he said that it was but to prune and cut off the rotten and corrupt branches of this Tree to wit that those which had not their substance from the true Sap nor from the ancient Law of the Realm nor from the meaning of the Statute and so to reduce the Tree to its beauty and perfection The same reason he said might have been made in the time of Edw. 4. against those Arguments which were made to maintain the common Recoveries to bar Estates-tail But if such a reason had been then made it would have been taken for a bare conceit and meer trifle and yet Vses were never more common then Estates-tail were between the Statute of Donis conditionalibus and the said time of Edw 4. But the grave Iudges then saw what great trouble hapned amongst the people by means of Intails and what insecurity happened by means therof to true Purchasors for whose security nothing was before found as we may see by our Books but collaterall Warranty or infinite delay by Voucher and thus did the Iudges of this time look most deeply into it wherupon upon the very rules of Law it was found that by common Recovery with Vouchers these Estates-tail might be barred which hath been great cause of much quiet in the Land untill this day that now it begins to be so much troubled with the cases of Vses for which it is also necessary to provide a lawfull remedy But he said plainly That if the Exposition made on the other side shall take place it will bring in with it so many mischiefs and inconveniencies to the universall disquiet of the Realm that it will cast the whole Common-wealth into a Sea of troubles and endanger it with utter confusion and drowning And to that which was said That a Remainder to the right Heirs of I. S. or to the Heirs of the body of I S. or to the first Son as here are so in the custody of the Law that they cannot be drawn out that therfore no forfeiture can be made by the Feoffment made by him who hath the particular Estate To that he said That a Disseisin made to the particular Estate for life draws out such Remainders to the right Heirs as is proved expresly by 3 H. 6 where it is holden that a collaterall Warranty bars such a Remainder in obeyance after a disseisin And by Gascoigne 7 H. 4. If such a Tenant for life makes a Feoffment in Fee it is a Forfeiture but he conceived that in the life time of I. S. none can enter for it but this is not Law and when by the Feoffment the particular Estate is quite gone in possession and in right also the remainder shall never take
Sheriff of another County then where the occasion brought or by Warrant of a Iustice of Peace of another County for matter of the Peace and the like which are not like to the case of Partridge who was beâ—ten in the County of Glocester by Sir Henry Pole for which he brought his Action in London And Sir Hen. Pole would have justified by Assault of the Plaintiff in the County of Glocester with a trâ—verse that he was not guilty in London But it was then ruled in this Court that he could not do it to oust the Plaintiff to sue in London but in such a case he might have alledged that the Assault was done in London because it was also a thing transitory of which they shall take notice there and so help himself if the matter had been true But in the case at the Bar if the speciall matter alledged in the forraign County be false as here the Plaintiff may maintain his Action and traverse the special matter alledged by the Defendant And so a traverse in such a case may be upon a Traverse when falsity is used to oust the Plaintiff of that benefit which the Law gives him Hillary Term 38 Eliz. Wood versus Matthews 1. IN a writ of Error brought by Owen Wood against Griffeth Matthews upon a judgment given in the common Pleas the case was briefly thus The Issue in the Common Pleas was whether one were taken by a Cap. ad satisfaciendum or not and upon the triall therof at the Nisi prius the Jury found for the Plaintiff in this Action to wit that the party was not taken by the said Capias and upon the back of the Pannell entred dicunt per Quer. but on the back of the Postea the Clark of the Assises certified the Pannell thus to wit That the Jury say that no Capias was awarded which was otherwise then was put in Issue or found by the Jury and the Roll of the Record was according to the Postea and upon this Judgment given for the said Matthew then Plaintiff upon which amongst other Errors this variance between the Issue and Verdict was assigned for Error and after deliberation had upon this point and this matter alledged by the Defendant in the Writ of Error and certified out of the Common Pleas the Court awarded as to this point that the Record sent up out of the Common Pleas by the Writ of Error shall be amended according to that which was endorsed on the back of the Pannell for the endorsement upon the Pannell is the Warrant for the certifying of the Postea aâ—d so this Warrant over to him that makes the Entry in the Roll And therfore wheras it was alledged that the Postea was amended in the Common Pleas aftâ—r the Record removed it was holden to be well done there for although the Record were removed by the Writ of Error yet the Nisi prius the Postea and the like remain still there as it is of the Warrant of Attorney and the like And if the Postea had not been amended there but sent up with that which was endorsed upon the Pannel all shal be amended here according to that which was indorsed upon the Pannel and according to this there was a Presidâ—nt shewn Tr. 35. H. 8. between Whitfeild and Wright where the Issue was whether a quantity of Grain were delivered between two Feasts and endorsed upon the Pannel Dicunt pro quaer and yet the Postea certified and the Rolls also made that the delivery was made ad festa and upon this matter alledged in Banco Regis and the Error in this point assigned and certified out of the Common Pleas the Record removed by the Writ of Error was by award of the Court amended and the word Ad razed out and the word Inter written in lieu of it according as it appeareth it ought to have been by the Note upon the back of the Pannel And the like amendment was made lately in the Checquer Chamber upon Error brought there upon a Iudgment given in Banco Regis where the Iudorsment upon the back of the Writ was pro Quer. and the Postea and Roll was that the Plaintiff was guilty and there amended the last Term. Slanings Case 2. NIcholas Slaning of Bickley was seised in his Demesn as of Fee of the Mannor of Bickley and of a Mill in Walkhampton in the County of Devon called a blowing Mill and of another Mill there called a knocking Mill and of an acre of Land there also and of divers other Mannors and Lands in the said County of Devon the said Mills and acres of Land in Walkhampton then being in the possession of one Peterfeild and Atwill of an Estate for divers years then to come and being so seised he with Margaret his Wife levied a Fine of the said Mannor of Bickley and of other Lands omitting the said Lands in Walkhampton to certain Câ—nuzees who rendred the same back again to the said Margaret Slaning for her life with the remainder over to the said Nicholas and his Heirs After which the said Nicholas by Indenture daied 30. Octob. 21 Eliz. gave and enfeoffed all the said Mannors and Premisses to John Fits and others and the Heirs of the said Fits to the Vses Provisoes and Limitations mentioned in the said Indenture which was to the use of himself and the Heirs Males of his body by any other Wife the remainder to Nicholas Slaning of Newton Ferries and the Heirs Males of his body with divers remainders over with this Proviso to wit Provided and it is the intent of these presents and of the parties therunto that the said John Slaning and the Heirs Males of his body or the said Nicholas Slaning of Newton-ferries and the Heirs Males of his body in whomsoever of them the Inheritance in tail of all the Premisses shall happen to be by force of these presents shall pay to Agnes the Daughter of the said Nicholas Slaning of Bickly 200 l. or so much therof as shall be unpaid at the time of the death of her said Father according to the intent of his last Will with a Letter of Attorney to it by which he ordains John Hart and Robert Fort joyntly and severally his Attorney to enter into the said Mannor of Bickley Walkhampton c. and all other the Lands Tenements and Hereditaments in the said Indenture mentioned and possession for him to take and after such possossion taken for him and in his name to deliver full possession and seisin of the Premisses to the said John Fits c. according to the form and effect of the said Indenture wherupon possession and seisin was given of all but that which was in possession of the said Peterfield and Atwill And the said Pererfield and Atwill nor either of them never attorned to the said Grant After which Nicholas Slaning of Bickly made his last Will by which devised to the said Agnes his Daughter 200 l. to be paid in form following
doth much concern the Infant in as much as by his false plea he shall be bound to â—nswer of his own Goods if he hath no Goods of his Testator and therfore in a 11 E. 4. 1. he hath remedy against his Guardian for pleading a false Pâ—ea And by Doderidge if he hath no Guardian the Court shâ—ll appoint him a Guardian And if an Infant bring an action as Executor by Attorney and hath Iudgment to recover this is not erronious because it is for his benefit so per Curiam the difference is where he is Plaintiff and where he is Defendant And there is another difference where he is Executor and where not for being Executor his Plea might have been more prejudiciall to him and Coke lib 5. Russels case was agreed for good Law for an Infant may be Executor and may take money for a Debt and make a Release and give an Acquittance but not without a true consideration and payment of the money The same Term in the same Court. Thomas Middletons Case THomas Middleton alias Strickland was condemned for a Robbery at the Where a Felon is condemned and elcapeth and is re-taken upon confession that he is the same party execution may be awarded The Sheriff of Middlesex fined for not attending the Court. Assises in Oxford after which he made an escape and being taken again he was brought to the Bar and upon his own confession that he was the same party who did the Robbery and that he was condemned for it the Court awarded execution And Mountague chief Iustice said thâ—t was no new case for it had been in experience in the time of E. 3. and 9 H. 4. and 5. E. 4. that the Court might so do upon his own confession And because the Sheriff of Middlesex did not give his attendance upon the Court in this case nor came when he was called the Court fined him 10 l And Mountage said that it shall be levied by proces out of the Court and also all other Fines there assessed and not estreated into the Exchequer for then the party might compound for a matter of 20 s. and so the King be deceived The same Term in the same Court. Gouldwells Case IOhn Gouldwell seised of Land in Socage Tenure devised them to his Wife for life the Remainder to John Gouldwell his Son and his Heirs upon Condition that after the death of his Wife he shall grant a Rent-charge to Steven Gouldwell and his Heirs and if John Gouldwell dye withâ—ut Heirs of his body that the Land shall remain to Steven Gouldwell in Tail the Wife dieth John Gouldwell grants the Rent accordingly Stephen Gouldwell grants the Rent over John Gouldwell dies without Heir of his body and the second Grantee distrains for the Rent arrear and Stephen Gouldwell brings a Replevin And it was urged by the Counsell for the Plaintiff that this Rent shall not have continuance longer then the particular Estate and cited 11 H. 7. 21. Edriâ—ks case that if Tenant in Tail acknowledge a Statute this shall continue but during his life and Dyer 48. 212. But it was agreed per Curiam that the Grantee was in by the Devisor and not by the Tenant in Tail and therfore the Grant may endure for ever But for the second point this being to him in Remainder the intent of the Demisor is therby explained that he shall have the Rent only untill the Remainder come in possession for now the Rent shall be drowned in the Land by unity of possession 3. It was agreed and resolved that by the granting of the Kent over this was a confirmation And Mountague said that it was a confirmation during the Estate Tail and shall enure as a new grant afterwards And Haughton and Doderidge said that they would not take benefit of the grant over by way of confirmation for as Haughton said this enures only ought of the Devisor and he hath power to charge the Land in what manner he pleaseth and it is like to an usuall case as if a man makes a Feoffment in Fee to the use of one for life the Remainder over with power to make Leases and after he makes a Lease this is good against Tenant for life and him in the Remainder also And I have considered what the intent of the Devisor should be in granting of this Rent and it seems to me that in as much as the Land is limited in Tail and the Rent in Fee that by this the Grantee shall have power to grant or dispose of the Rent in what manner he would but if the Land had been in Fee I should have construed his intent to have been that the Grantee should have the Rent only untill the Remainder fall to which Doderidge agreed who said that we are in the case of a Will and this construction stands with the intent of the Devisor and stands with the Statute which saies Quod voluntas Donatoris est observanda The same Term in the same Court. Baskervill versus Brook A Man became Bail for another upon a Latitat in the Kings Bench and before Iudgment the Bail let his Lands for valuable consideration Difference between baile in the Kings Bench and the Common Pleas. And how a bail shall relate And afterwards Iudgment was given for the Plaintiff And now it was debated whether the Land Leased shall be liable to the Bailment and it was said by Glanvill of Councell with the Lessee that it ought not to be liable and he put a difference between a Bailment in this Court and a Bailment in the Common Pleas for there the Suit cometh by originall and the certainty of the debt or demand appeareth in the declaration and therfore then it is certainly known from the begining of the Bailement for what the Bail shall be bound But in this Court upon the Latitat there is not any certainty untill Iudgment given before which the Land is not bound and now it is in another mans hands and therfore â—ot liable and he puts Hoes case Co. lib. 5. 70. where iâ— was resolved that where the Plaintiff releaseth to the Bail oâ— the Defendant upon a Suit in the Kings Bench before Iudgment all Actions Duties and Demands that this Release shall not bar the Plaintiff for there is not any ceâ—tain duty by the Bail before Iudgment and therfore it cannot be a Release and he citeâ— the case of 21 E. 3. 32. upon an account and said that it was like to a second Iudgment in that which reduceth all to a certainty and therfor c. But it was said by Mountague and Crook that the Lessee shall be bound for otherwise many Bailments and Iudgments shall be defeated which will bring a great Inconvenience And Mountague said that it was like to the case of a bargain and sale of Land which after it is Inrolled within six moneths shall relate to the beginning of the Bargain so upon the Iudgment given relation is made from the time
grants over the Reversion the first Lessee dies and the Grantee of the Reversion brings a Writ of Covenant against his Executors In which case there were two points 1. Whether these words And the said Lessee his Executors Administrators and Assigns shall from time to time c. make a Covenant or Whether Covenant lies against the Executor of a Lessee after assignment no. 2. Whether as this case is it will lye against the Executors of the Lessee As to the first point it was agreed that it is a Covenant for being by Indenture it is the words of both parties and it is more strong being in the case of the Queen Haughton laid that 25 H. 8. Tit. Covenant Covenant will lye against a Lessee after assignment but Debt lyeth not for Rent after the Lessee hath accepted the Assignee for his Tenant and therfore it seems that by the expresse words of the Covenant that the Action lies Doderidge Iustice contra for between the Queen and the Lessee there is privity of Contract and also of Estate so that the Queen her Heirs and Successors might have had an action against the Lessee or his Executors upon the privity of Contract and where the Lessee â—ssigns over the privity of Contract remains but the privity of Estate is gone to the Assignee and now when the Queen grants over the Reversion the privity of Contract is utterly determined wherby the Action of Covenant cannot be maintained against the first Lessee or his Executors who are more remote to which Mountague chief Iustice agreed see 2 H. 4. 6. 6. H. 4. 1. and Co. lib. 3. Walkers case and the Iudgments there cited Et adjournator The same Term in the same Court. Bennet versus Westbeck THe Case was thus Tenant for life Remainder for life Reversion in Fee he in Remainder for life gives his Deed of Demise with the assent of the first Tenant for life upon the Land to a stranger in the absence of the Lessor and said that he surrendred to him in Reversion And it was said that this Surrender being without Deed was not good to him who was absent and to confirm it the case was put out of 27 H. 8. Where Mountague chief Iustice said that if a Feoffment be made to four and Livery is made to one in the absence of the other but in name of all if it be by Deed this shall enure to all but if it be without Deed then only to him to whom the Livery was made So here this Surrender doth not enure to him in the Reversion being absent Whether Tenant for life in Remainder may surrender without Deed. But Non aliocatur for the sole point now in question was whether he in Remainder for life can surrender without Deed and as to it this Rule was taken viz. That that which cannot commence without Deed cannot be granted without Deed as a Rent Reversion common Advowson c. as 19 H. 6. 33. 14 H 7. 3. 1 2. Ph. Mar. 110. 22. Ass Pl. 16. But in this case this took effect by Livery and not by Deed and therfore might be determined without Deed. Mountague and Haughton agreed that it might be surrendred without Deed because it had its beginning without Deed but it could not be granted over without Deed. Doderidge Iustice said that it could not be surrendred without Deed but he said that Tenant in possession may or Tenant for life and he in Remainder together may surrender to him in the Reversion but this shall innure as two severall Surrenders first of him in Remainder to the Tenant for life and then by the Tenant for life to him in the Reversion Crook Iustice agreed with Doderidge for the Estate of him in Possession is an Estoppell to the Surrender so that it could not be surrendred without Deed. The same Term in the same Court. Thurman versus Cooper IN an Ejectione firmae brought by John Thurman against William Cooper upon the whole matter the case was thus Lands were given to a man and woman who afterwards inter-marry and to their Heirs and Assigns Habendum to them and to the Heirs of their two bodies engendered the remainder to them and the Survivor of them with warranty to them and their Heirs and Assigns for ever And the question was what Estate this shall be whether an Estate-tail or Fee-simple or a Fee-tail with a simple Expectant And it was said that this shall be an Estate-tail only for the Habendum qualifies the generall words precedent and with this agrees Perkins 35. b. and Co. lib. 8. 154. b. Althams case But it was answered and resolved by the whole Court that this is a Fee-tail with a Fee-simple expectant and they observed these Rules 1. That every Deed shall be taken most strong against him that made it 2. That every Deed shall be construed according to the intent of the maker so that all the parts may be effectuall if they can stand together with the Rules of Law 40 E. 3. 5 Percy saith that it is a Fee-simple 21 H. 6. 7. that it is an Estate-tail with a Fee-simple expectant Dyer 160. and Plow Paramore and Yardleys case the Law shall make an order of words where there is no order put by the parties and the words after the Remainder limited are Tenendum de Capitalibus Dominis feodi c. and therfore it ought to be a Fee-simple for if it were a Fee-tail he should hold of the Donor as it is in Co. lib. 6. Sir John Molins case and other Books And although the Warranty cannot inlarge an Estate yet this expresses his intent to passe a Fee-simple and the Law shall make a construction that the Fee-tail shall precede upon which the Fee-simple shall be expectant according to that which is before said in Paramore and Yardleys case Doderidge If the Habendum had been to a stranger the Premisses had been but a Tail as 7 H. 4. for otherwise the Habendum shall be void But if Land be given to one and his Heirs viz. In Tail or if the said Donce dye without Issue of his body this had been but an Estate-tail only because it immediatly checks and confirms the Premisses to which Haughton agreed Et adjournator The same Term in the same Court. Powels Case POwel an Vtter-Barister of the Temple and also Town-Clark of Plimoth brought an Action upon the Case against for these Words That he was a Puritan Knave a precise Knave a bribing Knave a corrupted Knave c. words The Defendant supposing that the Plaintiff had wronged him in the Court of Plimoth said that he was a Puritan Knave a precise Knave a bribing Knave a corrupted Knave and that he would make him answer for that which he had done in another place And after Verdict for the Plaintiff it was now moved in Arrest of Iudgment that the words were not actionable because he doth not scandalize him in his Profession by which he acquires his
case who agreed that the wife shall not have it The same Term in the same Court. Dennis versus Sir Arthur Mannaring and others IN the great case between Gabriel Dennis Plaintiff in Trespasse against Sir Arthur Mannaring and Brimblecomb and others the Verdict was found for the Defendants And now it was moved in Arrest of Iudgment for the Plaintiff because no Bail was entred for Brimblecomb one of the Defendants A Verdict is given in B â— before any bail entred not good for every Defendant is supposed in Custodia Marescalli and in this case the Venire facias is awarded to try the Issue between the Plaintiff and Defendants where one of the Defendants is no party in Court And Serjeant More put the case of the Lord Chandoys and Sculler and other Defendants where the Iudgment in such a case was resolved to be erroneous Mountague we ought Discernere per legem quid sit justum and here Brimblecomb being no party in Court no Verdict could be given Doderidge I have seen in this Court where upon a Writ of Error brought in such a case we have compelled him to put in his Bail because he should not take advantage of his own wrong and folly But because that here no fraud appeared to be in the Plaintiff he shall not be bound to stand to the Verdict Haughton agreed but Crook seemed to the contrary But it was agreed that if Brimblecomb had appeared at the Suit of any other the same Term it had been sufficient And these Books were cited to be in the point 32 H. 6. 2. 8 E. 4. 5. 21 H. 6. 10. The same Term in the same Court Hide versus Whistler WIlliam Hide made a Lease for years of certain Lands to Whistler excepting Exception of all Wood under-wood Coppices and Hedgerows to the Lessor all his Wood and under-wood Coppices and Hedgerows and in a Replevin the question was whether the Soil shall passe ther by for the Lessee put his Beasts into a Coppice and the Lessor distrained them wherupon c. And the words of the exception were further standing growing and being in and upon the Premisses And the Lessee covenanted to make Fences but if the Lessor made new Coppices that the Lessee should net make Fences about them And it was said that a Coppice signifies a parcell of Land fenced for the safegard of young Trees And it was said for A Coppice what it is the Plaintiff that Premisses are Pre dimissa and by these words growing and being in the Premisses it shall be intended that the Soil did not passe for it is pre-demised But it was resolved that the Soil it self was excepted by the exception of the Wood and Coppice 14 H. 8. 1. The Bishop of Londons case Co. lib. 5. Ives case and lib. 11. Lyfords case And by the reserving of a Coppice the Soil it self is reserved for by Mountague that which is reserved is not demised and so the Distresse well taken Crook agreed and he said the difference was good between Wood and Trees for by the excepting of Wood the Soil it self is excepted otherwise of Trees Haughton agreed that the Soil it self is excepted in this case and so it was adjudged The same Term in the same Court. Talbot versus Sir Walter Lacen IN a Writ of Covenant brought by Margaret Talbot against Sir Walter Lacen upon a Lease made by the Plaintiff to the Defendant of a Park Covenant to leave the Premistes in repatations at the end of the Term. c. for five years if she should live so long in which the Lessee covenants for him his Executors and Assigns to keep the Premisses in good Reparations and so to leave them at the end of the Term and also to deliver to the Plaintiff upon notice given four Bucks and four Does in season during the life of the Plaintiff in every of the said years And after the expiration of the aforesaid term of five years she brought a Writ of Covenant and assigned the breach because that in the end of the term he committed Wast and because that after the end of the term the Defendant refused to deliver the Deer And albeit the words of the delivery of the Deer are during the life of the Plaintiff yet they are also every of the aforesaid years and therforeit was resolved that she shall not have them during her life in this case And for the other point it was objected that in Fine termini was incertain for it may extend after the term but Ad finem termini had been sufficient Old book of Entries 169. for when he covenants that at the end of the term he would leave the Premisses in reparations and Ad finem termini he did wast this ought of necessity to be intended a breach of the Covenant and therfore it was adjudged that the action of Covenant well lies Mich 16. Jac. In the Kings Bench. Havergall and Hares Case IN this Case which see before fol. 1. b. four points were observed 1. Whether Fisher the Assignee of the Rent were such a person who Before fol. 1. b shall take benefit of the entry 2. When 10 l. is only in arrear whether the Rent of 20 l. shall be said in arrear 3. Whether these advantages which were first granted with the Rent may be granted over 4. When the Vse shall rise whether upon the first Indenture of the grant of the Rent or afterwards For the case was that the Grantee of the Rent of 20 l. covenanted by the same Indenture that if the said rent of 20 l. were in arrear for the space of twenty daies after any day of payment that the Grantee shall distrain and if there be not sufficient distresse upon the Land or if there be a Rescous Replevin or Pound-breach that then it shall be lawfull for the Grantee and his Heirs to enter into the same Land and to retain it untill he be satisfied And the said Rent was granted 9 Jac. it was arrear 11 Jac. the Fine for the better assurance of the Rent was levied 12 Jac. and 13 Jac. the Distresse was taken There were four Causes which give an entry and upon the Distresse and Replevin brought the Assignee enters As to the three first points it was resolved by the whole Court 1. That Fisher was such an Assignee who shall take benefit of the Entry 2. When 10 l. is only arrear the Rent of 20 l. shall be said arrear wherupon there shall be a Title of Entry 3. That these advantages granted with the Rent may be granted over And as to the fourth point it was holden by Mountague and Crook that the Vse riseth upon the first Indenture and not upon the entry after the Replevin brought although the words are that then it shall be lawfull for the Grantee and his Heirs to enter wherby the use is only awaked as it is in the principall point in Shelleys case and although a Fine is afterwards
naturall Jones Iustice There is great difference between a way and a water-course as to this purpose for admit that this water-course after that it had been in the Curtilage of the Plaintiff goes further to the Curtilage of another shall not that other have the benefit of this water-course notwithstanding the unity of possession I think cleerly that he shall Doderidge my opinion is that the water-course is not extinguished by the unity of possession But some conceived that he had declared his opinion in terror to the Defendant And afterwards the same Term Barksedale for the Plaintiff said that he had agreed the case before and therfore would now only indeavour to answer some exceptions which had been taken to the Declaration 1. Exception hath been that no prescription or custom is made for this water-course but only that Currere solebat consuevit But I conceive thaâ— the Declaration is good notwithstanding this because the Plaintiff here doth not claim an interest in the Water-course but in the Land in which c. and therfore it is good and this appeareth by 12 E. 4. 9. the Prior of Lantonies case in a prescription in a Market overt generally and the reason there was because he was a stranger as in our case he is and this pleading appeareth also to be good by Cooks Book of Entries 18. Smiths case which was entred 9 Jac. Rot. 366. in this Court 2. Exception was because it is not said that it was Antiqua Rectoria 3. Exception because it doth not appear that he was a spiritual man to whom the Demise of the Rectory was made 4. Because it is not said that the Water-course Ad predict Rectoriam pertinet 5. Because the Water-course is alledged to be for his customary Tenants of the said Rectory and this is not good as appeareth by 21 Eliz. Dyer 363. Prescription Pro quolibet customar Tenente is not good but I conceive that this case is not our case for here is Customarius tenens Rectoriae and there it is agreed that Quilibet customarius tenens Maner had been good And the plea in Bar hath salved these objections and therfore he prayed judgment for the Plaintiff Jeremy for the Defendant And first for the matter in Law it seemed to him that by the unity of possession the Water-course is extinguished and the Water-course may well be compared to the case of the way for as a way is a passage for men over the land so water hath passage upon the land and a way is extinguished by unity as appeareth by 21 E. 3. 2. 11 H. 4 5. 21 Ass and Davies Reports 5. and in 4 Jac. Jordan and case it was the better opinion that a way was extinguished by unity of possession true it is that there Popham chief Iustice put the difference where the way is of necessity and where not for where the way is of necessity there it shall not be extinguished This case hath been compared to the case of a Warren in 35 H. 6. but I conceive that the cases are not a like because a Warren is a meer liberty 8 H. 7. 5. A man may have a Warren in his own Land and Co. lib. 7. Buts case by a Feoffment of Land a Warren doth not passe but this Water-course hath its originall out of the Land and this case cannot be compared to an ancient Water-course running to a Mill for notwithstanding the unity it shall passe with the Mill for otherwise it shall not be Molendinum aquatinum so that the water there is parcell of the thing and so of necessity ought to passe with the thing but here it doth not appear that it is a Water-course of necessity and for any thing that appeareth it may be filled with another Water-course Also I conceive that the Declaration is not good 1. Because neither prescription nor custom is laid for the Watercourse and it appeareth in Co. Book of Entries Holcome and Evans case and the old Book of Entries 616 617. Mich. 1. Car. Rot. 107. Turner and Dennies case in this Court in trespasse for breaking his Close c. the Defendant justified for a way c. and that he was possessed for years and for him and his Occupiers had a way over the Land the Plaintiff demurred and resolved that the prescription is not good 2. The Declaration is insufficient being an action upno the case for the stopping of a Water-course and it is not Vi armis nor Contra pacem Co. lib. 9. 50. the Earl of Shrewsburies case when there are two causes of an action upon the case the one Causa causans the other Causa causata causa causans may be alledged Vi armis for this is not the immediate cause of the action but Causa causata F. N. B. 86. H. and 92. E. in the end of the Writ of action upon the case shall be Contra pacem 3. Also he hath prescribed for the Tenants of the Rectory which is not possible for no Lay-man could be Tenant of a Rectory or of Tithes before the Statute of H. 8. and therfore I pray Iudgment for the Defendant Whitlock chief Iustice conceived that the declaration was good the bar is naught both for the form matter the question here is of Aqua profluens and I conceive that there needs no prescription or custome in this case for water hath its naturall course and as is observed by Brudnell in 12 H. 8. Natura sua descendit it may be called Usu captio or Vsage and he conceived that the action upon the case very well lies in this case like to the case where a man bath a house and windows in it and another erect a new house and stop the light then I may have an action upon the case but true it is that I shall not only count for the losse of the aire but also I ought to prescribe that time out of mind light have entred by these windows c. see 7 E. 3. If there be a School-master in a Town and another erect a new School in the same Town an action upon the case doth not lye against him because Schools are for the publike benefit and every private man may have a School in his house And for the exception that a Lay man cannot be possessed of a Rectory I conceive that the Declaration is good notwithstanding for a Lay-man may have a Rectory by Demise And for the Plea in bar it is not good for the form because that Searles entred and enfeoffed Pigot and it is not said that he entred and Expulit and if a man enter and make a Feoffment the owner being upon the Land the Feoffment is void and therfore an actuall Ouster ought to be shown And for the matter in Law he conceived that the Bar was not good for by the unity of possession the water-course is not extinguished and yet I agree the cases of a way and common upon the differences of Rights which are
same time nothing works by the Livery for the reason before given by Jones For the matter of Law he conceived that the unity of possession doth not extinguish the Water-course and that for two reasons 1. For the necessity of the thing 2. From the nature of the thing being a Water-course which is a thing running 1 For the necessity and this is the reason that common appendant by the unity of possession shall not be extinguished for it is appendant to ancient Land-hide and gain arable Land which is necessary for the preservation of the Common-wealth and as in this case there is a necessity of bread so in our case there is a necessity of water And for the case of a way Distinguendum est for if it be a way which is only for easement it is extinguished by unity of possession but if it be a way of necessity as a way to Market or Church there it is not extinguished by unity of possession and accordingly was the opinion of Popham chief Iustice which I take for good Law and the case of 11 H. 7. 25. is a notable case and there a reason is given why a Gutter is not extinguished by unity of possession because it is matter of necessity 2. From the nature of water which naturally descends it is alwais current Et aut invenit aut facit viam and shall such a thing be extinguished which hath its being from the Creation Co. lib. 4. Luttrels case a Mill is a necessary thing and if I purchase the Land upon which the streams goes which runs to this Mill and afterwards I alien the Mill the Water-course remains So if a man hath a Dye-house and there is a water running to it and afterwards he purchase the Land upon which the water is current and sell it yet he shall have the Water-course Dyer Dame Browns case and the principall case in Luttrels case a Fulling-mill made a Water-mill this shall not alter the nature of the Mill but yet it remains a Mill so the water hath its course notwithstanding the unity and he concluded for the Plaintiff Crew chief Iustice I agree that the Declaration is good and also that the Bar is good for the manner but for the matter in Law I conceive that it is not good In our Law every case hath its stand or fall from a particular reason or circumstance For a Warren and Tithes they are not extinguished by unity because they are things collaterall to the Land And for the case of 13 Eliz. in Dyer of an Inclosure I conceive that by the unity the Inclosure is destroyed for the Prescription was interrupted and in Day and Drakes case 3 Jac. in this Court it was adjudged that in the same case the Prescription was gone It may be resembled to the case of Homage Ancestrell 57 E. 3. Fitzherbert Nusans And for our case it is not like to the cases of Common or a Way because the Water-course is a thing naturall and therfore by unity it shal not be discharged also there is a linement out of which every man shall have a benefit and therfore he concluded that Iudgment should be given for the Plaintiff And Iudgment was commanded to be entred for the Plaintiff The same Term in the same Court. Welden versus Vesey AN action of Debt was brought by Welden Sheriff of the City of Coventry against Vesey upon the Statute of 29 Eliz. cap. 4. and declares that it is provided by this Statute that no Sheriff or Minister c. shall take for an execution if the summ doth not exceed 100 l. but 12 d. for every 20 s. and being above the summ of 100 l. 6 d. for every 20 s. and shews that wheras the said Vesey had judgment against one in an action of Debt that the Plaintiff by virtue of a Capias directed to him took the body of the said person condemned and that it was delivered to the Plaintiff and that he for levying of the money had brought this action The Defendant by way of Bar saith that it is provided by this act that it shall not extend to Executions in Towns Corporate and that this was within Coventry and so demurred upon the Declaration And Whitwick argued for the Plaintiff two things are considerable in this case 1. Whether where the summ exceeds 100 l. the Sheriff shall have 12 d. for every 20 s. of the 100 l. and 6 d. for that which is over or 6 d. only for every 20 s. for all the summ 2. Whether this Statute extend to Iudgments in Towns Corporate For the first the letter of the Statute is cleer that he shall have 12 d. for the first 100 l. and 6 d. for the residue for the Statute is that if it be above 100 l. Whether a Sheriff or c. shall have 12 d. in the pound for the first 100 l. and 6 d. for the rest upon an Execution that he shall have but 6 d. therfore if it be under a 100 l. he shall have 12 d. for every 20 s. And the meaning of the Statute is plain also for otherwise the Sheriff shall have a lesser Fee where it is above a 100 l. as where it is a 199 l. then he shall have for 100 l. but this was not the intent of the Statute but the greater the Execution the greater the Fee It was adjudged in one Gores case 10 Jac. that an action of Debt lies upon this Law Pasch 14 Jac. Rot. 351. Brole and Tumblerson Sheriffs of the City of London brought Dabt against Nathanael Michell for execution of 400 l. for 12 l. 10 s. scil 5 l. for the first 100 l. and 6 d. for every 20 1. after But I confesse that the principall question there was whether an action of Debt lies for the money and it was resolved that it did and Iudgment was given for the Plaintiff 2. To the Proviso that this doth not extend to Fees in a Town Corporate whether this extend to executions which go out of Iudgments in this Court or in the Common Pleas into Towns Corporate The Statute shews that before that time the Sheriff had taken great Fees which the Parliament considering restrained them to a certainty The words of the Proviso are generall Provided that this Act shall not extend to any Fees to be taken for any Execution within any City or Town Corporate and although the words be generall yet the exposition shall be according to reason as it is said in Fulmerston and Stewards case in Plow Expesition shal be made against the words if the words be against reason 5 H. 7. 7 38 H. 3. Broo. Livery 6. The King shall have primer Seisen of all Lands of his Tenant which he holds of him in Capite but if one holds of the King in Capite in Socage he shall pay no primer Seisen to the King and this Statute shall have this intendment that this Proviso shall extend only to Executions upon Iudgments
Iudgement for the Plaintiff The same Term in the same Court NOta by Doderidge and Jones Iustices that upon the principall Iudgement reversed the outlawry is also Ipso facto reversed Also if an Outlawry reversed upon revers all of the principall judgement outlawry be awarded if it be not per Judicium Coronator unlesse it be in London the outlawry is voyd It was demanded by the Iustices when the outlawry and Iudgement are affirmed how the entry is And it was answered by Broome Secondary that the entry is generall Quod judicium affirmetur in omnibus and this sufficeth But if the Iudgement be affirmed and the outlawry reversed then the entry is Quod judicium affirmetur Utlagario cassetur The same Term in the same Court Calfe and others versus Nevil and others AScire facias was brought by Joseph Calfe and Joshua Executors of A. against Nevil Davyes and Bingley and the Case was this they became bayle to one Hall who was condemned in an Action to the Testator of the Plaintiff that the said Hall should either render his body to Prison or that he should satisfie the Iudgement the Defendents Plead that after the Scire facias returned and presently after the Iudgement the said Hall brought a Writ of Error in the Exchequor Chamber hanging which the said Hall reddidit se prisonae in exoneratione manucaptorum suor and there dyed and the Plaintiffe demurred upon this Plea because it was double and Calthorp argued for the Plaintiff that it was double or rather treble 1. That Reddidit se prisonae 2. That he was imprisoned 3. that he dyed in Prison And to prove the Piea double in this Case he cited 13. H. 8. 15. 16. 4. E. 4. 4. 21. H. 7. 10. The second matter that he moved against the former was that pendant the Writ of Error reddidit se prisonae and doth not conclude upon the Record hoc peratus est verificare as he ought to have done and for this he cited 7. H. 8. Kelleway 118. If J. S. bee bound in a Recognizance that A. shall appeare such a day before the Kings Iustices at Westminster if his appearance be not recorded hee shall not have any averment by Bricknell and Conisby and in 30. Eliz. It was one Wicks Case which is ours in effect in case of baile Dyer 27. 6. E. 4. 1. 2. For the matter the Plea is nought 1. Because by the Writ of Error brought the Scire facias against the baile is not suspended because the Bayle is a distinct record and upon this he cited the Case of the Ambassador of Spain against Captaine Gifford which was Trin. 14. Jac. That by the Writ of Error brought the baile was not suspended and he said that it was so resolved also in Goldsmith and Goodwins Case 2. For the render of the principall to prison it is not good because it doth not appear upon Record and for this he cited one Austin and Monkes Case which was in 14. Jac. In Scire facias against the baile it is pleaded that the principall had rendered himselfe to prison and upon the matter it appeared that the render was upon Candlemas day which is not Dies juridicis and so the Court this day had no power to commit him to prison for which the Plea was adjudged voyd 3. For the death it is no Plea the baile by it is not discharged because he hath not rendered himselfe in due time and for this he cited Justice Williams and Vaughans Case which was Mich. 3. Jac. where in Scire facias against the baile they pleaded that the principall was dead and thereupon the Plaintiff demurred and in this Case two points were resolved 1. There was no Capias mentioned to have issued against the principall and yet resolved that a Scire facias would lye against the Baile 2. That the Plea in Bar is not good because it may be that the principal dyed after the Capias awarded or after the return thereof because it appeareth that there was once a default in the principal and so the baile forfeited and no Plea afterwards would discharge it and upon this he put this Case A Prisoner escape out of Prison the Goaler makes fresh suit and before he hath taken him the Prisoner dies this is the act of God and yet because it was once an escape an Action of Escape lyes against the Goaler Jermy for the Defendent and he remembred a Case which was Hil 20. Jac. Cadnor and Hildersons Case that by the Writ of Error the bayle is suspended Nota that it was agréed by the Court in this case that by the Writ of Error brought in the bayle was not discharged because it is incertain whether the Iudgement shall be reversed or not Also it was agreed that if the principal dies before a Capias awarded against him that the bayle is discharged It was also agreed by the Court that the Plea was not double for the first matters are but an inducement to the last and yet by Doderidge if severall matters are pleaded in Bar and there be not any dependency on them the Where a Plea is double and where not Plea is double although none of them be materiall but one Jones Justice cited one Hobs and Tadcasters Case which was 43. Eliz. in B. R. where after a Writ of Error brought a Scire facias issued against the Bayle and upon Nihil returned the Plaintiff in the Scire facias brought in an Audita Quaerela and there the matter came in question whether upon the Iudgement the Principall ought presently render himself to prison or that he should stay until a Capias awarded against him and there it was resolved by Popham and all his Companions that the Principal is not bound to render himselfe to Prison untill a Capias be taken out so that if he dies after the Iudgement and before the Capias awarded against him the Bayle is discharged And in the principal Case here it was resolved that a Scire facias does not lye against the Bayle until a Capias be awarded against the Principal because no Capias in this case was awarded against the Principal which could not be by reason of the Writ of Error before his death And also the Plaintiff in his Declaration ought to have averred and shewn that the Capias was awarded against the Principal for these reasons Iudgement was given quod quaerens nil capiet per Billa The same Term in the same Court. Reynor versus Hallet IN an Action upon the Case for these words viz. Reynor is a base Gentleman Words Reynor is a base Gentleman he hath foâ—â— childâ—en by his seâ—vant Agnes and he hath killed or caused them to be killed he hath four children by his Servant Agnes and he hath killed them all or caused them to be killed and after a verdict for the Plaintiff it was moved in arrest of Iudgement by Jermy that the words were not actionable For 1.
As to the first words Base Gentleman they are but words of choller 2. The next words He hath four Children by his servant Agnes cannot be actionable for although she were once his servant yet she might be afterwards his Wife 3. The Plaintiff hath averred in his Declaration that he hath lived continently and then he cannot have children by his servant Agnes and then the words are not actionable And 4. For saying he hath killed them is not actionable and upon this he cited one Snags Case Co. lib. 4. who brought an Action for these words Thou hast killed thy Wife and it appeared by the Declaration that his Wife was alive and therefore it was resolved that the words were not actionable And as to the last exception it was said by Ashley Serjeant on the other side that albeit the Plaintiff hath averred in his Declaration that he lived continently and so in a manner confessed that he had no children this is but for the aggravation of the offence of the Defendant as when an Action is brought for calling one Thiefe he avers that he lived honestly and yet the Action will lye But I confesse if the Plaintiff had averred that he never had any child then it would be like to Snags Case Co. lib. 4. 16. a. and that the Action would not lye But in Anne Davyes Case there she averred that she was a Virgin of good fame and frée from all suspition of incontinency and the Defendant sayd that a Grocer had got her with child Owen Wards Case in Cook Book of Entries hath the same Declaration as this and it was the President thereof But Jermy moved another exception upon these words he hath killed them and doth not say Felony which is not good for he migt kill them in execution of Iustice which is justifiable Trin. 2. Jac. Willers Case in the Court it was adjudged that for these words Thou hast stollen a peece and I will charge thee with Felony an Action lies not because a péece is a word of doubtfull signification And Trin. 20. Jac. It was resolved that these words Agnes Knight is a Witch were not Actinable but it was answered of the other side that upon the whole frame of these words they cannot be intended but to be spoken malitiously and there can be no pretencâ— of lawfull killing of children Doderidge all the words joyned together are actionable but these words only considered he hath four children by his servant Agnes are not Actionable and albeit he doth not alledge it felony yet this is a scandall and good cause of Action Jones agreed and yet he conceived that for saying singly that one hath a Bastard an Action lies not albeit the having of a Bastard be punishable by the Statute of 18. Eliz. cap. 1. But by him he hath killed the King shall be taken in pejori sensu otherwise it is if the words of themselves be indifferent as Pope and this word shall not be the rather taken in pejori sensu having relation to all the sentence for the contrariety of the Declaration it seems to me that the Declaration is good enough but if one saith Thou hast killed J. S. where in truth there never was such a man it is not actionable But here the Averment of the Plaintiff is more generall Ubi re vera he is not guilâ—y or incontinent which is a general allegation but if he had averred ubi re vera he never had any child there peradventure the Action would not lye but here it will Whitlock Justice agreed and he sayd that the first words hath had four children by his Maid Agnes are actionable and for the other matters they agreed whereby Iudgement was given for the Plaintiff The same Term in the same Court THis Term in the Common-place Sargeant Hendon cited this Case to be adjudged 4. Jac. A Copy-holder made a Lease for yeares by License and the Lessee dyed that this Lease shall not be accounted assets in the hands of the Excecutors neither shall it be extended But the Case was denyed by Iustice Hutton and others and that an Ejectione firmae lies of such a Lease But he said that if a Copy-holder makes a Lease for yeares by License of the Lord and dyes without Heire the years not expired the Lord notwithstanding this may enter for the Estate out of which this Lease was derived is determined But Yelverton Iustice was contra because this License shall be taken as a confirmation of the Lord and therefore the Lease shall be good against him and there as I heard it was argued by all that if a Copy-holder makes a Lease for a yeare this is a Lease by the Common-Law and not customary and shall be counted assets in the hands of the Executors of the Lessée The same Term in the Kings Bench. NOta upon evidence to a Iury between Buffield and Byburo the Case appeared to be this upon a Devise with these words I will and devise that A. and B. my Feoffees shall stand seised and be seised to and of Iohn Callis for life the remainder c. And the truth was that he had no Feoffees and the opinion of the whole Court nullo contradicente was that this is a good Devise to John Callis by reason of the intention 38. H. 8. Bro. Devis 48. 15. Eliz. Dyer 323. were urged for the proofe of it and by Doderidge the Case of 15. Eliz. is more strong then our Case is Linyen made a Feoffment to his own use and afterwards devised that his Feoffees should be seised to the use of his Daughter A. who in truth was a Bastard and yet this is a good Devise of the Land by intention for by no possibility they can be seised to his use Mich. 2. Car. Lemasons and Dicksons Case in the Kings Bench. Trin. 2. Car. Roll. 1365. THe Case was this One Parcevall Sherwood was indebted to Susan Clarke who brought an Action of debt by a Bill of Middlesex which is in nature of a Writ of Trespas against him and Sherwood upon a mean Proces was arrested by the Defendant being Bayliff of the Liberty of White-Chappel and being in his custody he suffered him to escape Afterwards Susan Clarke made the Plaintiff her Executor and dyed and then the Plaintiff brought an Action upon the Case against the Defendant upon the said escape and upon issue joyned it was found for the Plaintiff And Calthrop of Councel with the Plaintiff moved that the Action will well lye for the Testator himselfe might have had either an Action of Debt or upon the case upon the sayd Escape and therefore the Executor may have the same remedy and that by the equity of the Statute of 4. E. 3. cap. 7. which gives an Action to Executors pro bonis asportatis in vita Testatoris And by 14. H. 7. 17. this Statute shall be taken by equity and Administrators who are in the same mischiefe shall have the same remedy albeit they
case for there by the word Felony it was manifest what Felony he intended by the circumstances of the speech to wit that he ment such felony for which he might lose his life But the words here being generall of Felony it may be intended as well of a Mayhem aâ— of any other Felony for in an appeal of Mayhem he is arraigned as Felo Domici Regis 40. Ass and the other case of 44. Eliz. I do arrest him of flat Felony is not consonant with the reason of this case for there by the arrest his liberty is taken away but in this case there is no restraint and it is very hard to make these cases agree together for words are as variable as the faces of men c. Jones Justice agreed and he took it for a generall rule that where words carry a double sense and there is nothing to guide the sense more one way then another there the words are not actionable for finis est legis dirimire lites And therefore if one faith of another that he hath the Pox because the sense is ambiguous it shâ—ll be interpreted in mitiori sensu and therefore the words are not actionable to if one sayes of another that he hath stolen his Apples or his Corn because they may be Apples from the tree or Corn in the field the taking whereof is no felony but it was adjudged in the Common-Pleas when I was there that these words viz. Thou art a Thief and hast stolen my Corn are actionable by reason of the addition of the word Thiefe So that the speaking of words of a double sense are not actionable unlesse ex antecedentibus or consequentibus it can be collected that the words were spoken in pejori sensu Then the words in this case I charge you with Felony peradventure intend such a Felony for which he shall recover damages only which is Mayhem and therefore no action will lie These words Thou art forsworn are not actionable because forswearing may be in ordinary communication or in a Court of Justice and it shall be taken in mitiori sensu but if he sayes Thou art forsworn in a Court of Record it is actionable and if in this case he had charged him with Felony and sayd further that he had stolen c. they would have been actionable but here he only charges him with Felony which is an ambiguous word and also it is no direct affirmation and therefore not actionable and Iudgement was given Quod quaerens nil capiat per Billam The same Term in the same Court Goods Case GOod and his Wife brought a Writ of Error upon a Judgement given in the Court of the Castle of Windsor in an Action of Debt there which was entered Trin. Mich. 2 Car. Rot. 119. 120. and two Errors were assigned 1. Because the Judgement there is given in these words ideo consideratum ad judicatum assessum est whereas it ought to be onely by the word consideratum and the Judgement being the act of the Court the Law is precise in it and therefore it hath been resolved that a Judgement given by the word concessum is not good but it ought to be by the word consideratum 2. The costs ex incremento are not said to be given ad petitionem quaerentis aâ— it ought to be for beneficium nemini obt ruditur and therefore it hath been resolved in this Court that an alien born shall not have medietatem linguae if he does not request it and as to this it was answered of the other side that costs ought alwayes to be assâ—ssed ex petitione quaerentis and albeit here the request of the Plaintiff was not precisely put to increase of the costs yet at the beginning of the Judgement it is said Ideo ad petitionem quaerentis consâ—â—eratum c. And that costs shall be given ex in cremento so that this request goes to all the Sentence and by the unanimous opinion of all the Court the Judgement was reversed for both the Errourrs for 1. Ideo considerat adjudicat c. is not good the Judgement being the Act of the Court and the Law hath appointed in what words it shall be given and if other words should be suffered great incertainty and confusion would ensue and needâ—esse verbosity is the mother of difficulty 2. The increase of costs ought to be given ad petitionem quaerentis and the words ad petitionem quaerentis being misplaced will not supply this defect and Dammages ex incremento is alwayes given ad petitionem quaerent for as Bracton saith Omne judicium est trinus actus trium personarum judicis actoris rei and if in this case the usuall form should not be observed all would be in a confusion and in as much as the words are misplaced it is as if they had not been put in at all and therefore void like to a case put in Walsinghams case in Plowden where an averrement misplaced is as if there were none In this case the Judgement was reversed and Trin. 3 Car. in B. B. intr Hill 2 Car. Rot 849. a judgement was reversed because it was Ideo concessum consideratum est FINIS THE TABLE OF THE PRINCIPALL MATERS Contained in this BOOK A. ACceptance 113 Of a second Lease determines the first 9 Action 179 Where the Master shall be charged in an Action for the act of the Servant e contr 143 Action upon the case for words 35 36. 139. 140. 128 129. 148. 150. 177. 180. 184. 187. 207. 210. Action upon the case 116. 144. for pulling down a house 15 Against an Officer for his neglect 27 For laying too much waight wherby goods in another mans possession are lost 46 For stopping of a Water-course 166 Accessaries 107 Adjournment 33 Administration  not avoided by Averment 37. granted by a Lay-man 160 Administrators  Of the Wise shall have a Lease setled on the Wife not the Husband 106 Admittance 125 What the Heir may do before admittance 39 upon a surrender by a Disseisor 71 Addition  Of matter of Ornament shall not avoid a grant 57 Advowson 23 Agreement 134 construed according to the intention of the parties 182 Where to be joynt where severall 204 Alien  Where he may purchase where not 36 Amendment 21. 128. 203 204. Of the Postea and made according to the Pannel and the Record 102 Of a Record after the Record removed and Errour assigned 196 Annuity 87. 86 Pro consilio 135 Appropriation 144 145 Appeal  Of Mayhme 115 Plea in it 115 Assesment  by the major part of Parishoners shall bind the rest 197 Assumpsit 148. 182 183. 193. 206 against an Executor of an Assumpsit in the life of the Testator 30 31 32. generall indebitat Assumpsit 31 without consideration is nudum pactum 178 What shal be a good consideration to ground Assumpsit 183 184. Assise 111. Assets where a Lease for years to a Copyholder in the hand of