answered that if it is meerly Collateral then it shall not go to the successor of the Bishop but to his executors as if the lessee had covenanted or obliged himself to pay this Herriot to the successor he may not have benefit of this obligation but the executor of the Bishop who was lessor shall have that and so he said that the argument made by Hendon is against him for if it be meerly Collateral then this shall not go to the successor and though the lessee of the Mannor may not have it the Plantiff shall not have a Trover and Conversion as he said before but he held this good by way of reservation for modus conventio vincunt legem and as to that which hath been said that the Herriot is to be paid upon the death of a stranger and not upon the death of the lessee himself to this he answered that this is nothing for the payment shall be out of the beasts of the lessee and not out of the beasts of a stranger and so he concluded and prayed judgement for the Defendant Rives case SAlmon avowed for a rent charge and he shewed that Sir Robert Rives had a rent charge granted to him and he further shewed a discent of that to the son and heir of Sir Robert and shewed that the rent was behinde unpaid to him viz. to his son and heir and he avowed as Bailiff to the son and exception was taken to the avowry because it is not expresly alleadged in whose time the rent was due whether in the time of the father or in the time of the son for if it is behinde in the time of the father the son may not distrain for that but it was resolved that the avowry was very good for in asmuch that he had shewed that the rent was not paid to the son this implied the rent was due to the son and not to the father An Executor brought a Scire Facias upon a judgement given for the Testator in debt by him and the Defendant would have pleaded the death of the Testator between the verdict and the judgement per Curiam he was not suffered for he may not plead this in a Scire Facias but the Defendant is put to his writ of error In Trespass for beasts taken in London and the Defendant justified to taking as a distress upon a lease of land in Kent and the Plantiff replied that the Defendant sold the beasts in London and so not a good plea to bring the Trial out of Kent and to have that tried in London which note Batterseys case AN action upon the case was brought against one Hordecre upon an assumpsit and he declared that the Defendant had arrested one Battersey by vertue of a Commission of Rebellion out of the Cinque ports and that the Plantiff keeping a Common Inne the Defendant brought the said Battersey to his Inne and requested the Plantiff to keep him a day and a night and promised in consideration there upon that he would save him harmless and he shewed that he kept the prisoner accordingly and that the said Battersey brought an action of false imprisonment against him and recovered against him upon which the action accrewed and upon non assumpsit pleaded it was found for the Plantiff and now it was moved in arrest of judgement because he had not shewed that the said Battersey was lawfully arrested and imprisoned and then if a man will without cause arrest a man and promise in this case no action will lie for it is no consideration because that the imprisonment is unlawful but Hobert chief Iustice Hutton and Winch contrary for be the imprisonment lawful or not lawful he might not take notice of that as if I request another man to enter into another mans ground and in my name to drive out the beasts and impound them and promise to save him harmless this is a good assumpsit and yet the act is Tortious but by Hutton where the act appears in it self to be unlawful there it is otherwise as if I request you to beat another and promise to save you harmless this assumpsit is not good for the act appears in it self to be unlawful but otherwise it is as in our case when the act stands indifferent but Hobert said it may be there is a difference between a publick officer and a private man for if the Sheriff arrest a man unlawfully and promise as before this is a good assumpsit but perchance otherwise of a private man as here but in the principal case the Defendant had pleaded non assumpsit and this implies a Lawful imprisonment for otherwise the Defendant might have given the unlawful imprisonment in evidence and judgement was commanded to be entered for the Plantiff Claworthy against Mitchel CLaworthy against Mitchel in a replevin the Defendant avowed for a rent and shewed that his father was seised and let for years rendring rent and he died and that the reversion descended to him and for rent behinde he avowed in barre of which avowry the Plantiff said that the father devised the reversion to another and the other maintained his avowry and traversed the devise and it was found that the devise was only of two parties and not of the third part for in very truth the land was holden by Knights service and all this was found by special verdict and for whom the jury had found was the question and it was argued by Hendon that this verdict is found for the avowant and he vouched 32. H. 8. Brook issue 8. in a precipe quod reddat if the issue be whether A. and B. infeoffed the Tenant and it is found that A. infeoffed him but not that A. and B. infeoffed him the issue is found against the Tenant see 14. E. 4. and Dyer 260. in debt upon a lease for years of divers parcels of land and upon non demisit pleaded it is found quod demisit all except one parcel this is found for the Plantiff and â—rin 15. Iac. Rot. 2022. Allen against Soper in a replevin for a horse and avowed for damage fesant and the Defendant claimed Common for his beasts Levant and Couchant upon his land and some in this case were found Levant and Couchant and others not and it was found against the Plantiff and he said in this case when the Defendant had alleadged a devise of all the land and upon this issue is joyned and it is found that part is devised and not all this is found against the Plantiff because the issue is joyned upon a particular and a special point whether all was devised or no and yet he agreed that upon a general issue as in trespass in 20. acres of land and the Defendant is found guilty but only in one yet the Plantiff shall have judgement but not where the issue is joyned upon a particular point as here but admitting that the Plantiff shall have judgement yet the avowant shall have return
after verdict and no exception taken by the Defendant yet we as Iudges of the case may take notice of that ex officio and give judgement against the Plantiff and the 3. Iustices agreed that here is a condition by which the reversion is vested in them but it is in the Plantiff till performance of that which not being performed by them within the time limitted the Plantiff ought to have the rent and though the Will is that it shall be with the advise of the overseers and no advise is found yet that is at the peril of the Executors who ought to give notice of that to the overseers being to their advantage and for that see 21. H. 6. 67. 46. E. 3. 5. 18. E. 3. 27. 11. H. 4. 13. which cases were cited by Serjeant Harris at the barre and they agreed that the overseers shall not have the reversion for though it was devised to them yet that was upon the refusal of the Executors and no refusal is found but only a non performance of the condition and also the devise is tied to them upon condition to do that within 6. moneths which ought to be performed in convenient time at the least though it be in case of a Will and so they concluded that the Plantiff had right as to the matter in Law but that judgement shall be given against him upon the matter supra and it was resolved that this was not aided by any Statute of Ieofailes for this is a mistrial but another point was moved whether the Plantiff shall pay costs within the Statute of the 23. H. 8 or 4. Iac. the words of the Statute are if the Plantiff be nonsuite or verdict given against him upon a lawful trial but here it was resolved that he should not pay costs for no verdict is found against the Plantiff but rather for him and judgement is given against him because he mistook his action and in Bishops case Coo. 5. judgement was given against the Plantiff upon a material variance in the verdict and no costs was given and it is not only out of the letter of the Statute but also out of the intent for it may not be imagined that the Plantiff had stirrd an unlawful suite when the matter which he declares is found for him and that Statute is not taken by equity as Hutton said for it hath been agreed here that if Executors are nonsuite or judgement given against them upon a verdict they shall not pay costs within the Statute of the 23. H. 8. or 4. Iac. and so is the constant practise for the Statute speaks of any contract or specialty made with the Plantiff or between the Plantiff and Defendant and the Executor brings an action upon the contract of another and in the principal case judgement was entered that the Defendant should go without day and that he shall not have costs against the Plantiff Bret and Ward NOte upon evidence to a Iury between Bret and ward upon the dissolution of a Vicarage in the County of Warwick which was part of the Priory of Dantry where the Pope by his Bull gave to the Vicar minutas decimas et alteragum and it was certified by the Doctors that alteragum will pass to the Vicar Tithe wool c. and the usage was shewed in evidence and the Copie of the Popes Bull and the Court would not credit that without seeing the Bull it self and so the Plantiff was nonsuite and the Iury was discharged Bacon against Weston BAcon brought an action of debt upon an obligation against Weston as an Administrator to one Okes and he pleaded that the said Okes such a day and year in his life time acknowledged a judgement to him in the Kings Bench upon an indebitatus est of 1500. l. and died and that he retained so much of the goods to satisfie himself and that over that 1500. l. he had put 40. s. and it was moved that he ought to plead the general issue and give this matter in evidence as he may well but it is a mischief to the Plantiff to take issue upon that for then he ought to say that he had assets Hobert true he may give this in evidence or he may plead that the judgement was not satisfied or defezanced but we may not compel him to change his plea except he will assent Potter against Brown POtter brought an action upon the case against Brown for these words he innuendo the Plantiff as is arrant a thief as any is in England for he did break open the Trunck of the Plumbers standing in my Lord of Suffolks Hall with another mans tools and took out 20. l. and upon a general issue it was found for the Plantiff and damages given to twenty pound and Hendon Serjeant moved in arrest of judgement First because for want of an averment that there are Thiefs in England and it had been adjudged that if A. say of B. he is as arrant a Thief as any is in Warwick Goal yet B. ought to aver that there are Thieves in Warwick Goal but it was holden by the Court viz. by Hutton Winch and Iones that there needs not any such averment and the difference is when the words do relate to a particular place and when to an entire realm and the same law when it is tied to one kinde of fellony for it is very well known that there are Thieves in England and any in other realm and Hendon moved that the last words extenuate the former for the latter shew that he took that as a trespas for he did not say that he stole 20. l. out but took it out and so it shall be intended that he took it as a trespasser as to say B. is a Thief for he took money out of my Pocket implies a trespass and he is a thief for he took my horse this shall be supposed that he took him as a trespasser and Hutton said that till the time of Hen. 8. there was not any actions brought for words and to the end to settle peace he thought words not to be taken so largely and favorably in giving way to unruly tongues and to the unbridled humours of men but rather strictly to curb them for their evil language see after East 22. Jac. C. P. Easter Term in the 22. year of King James in the Common Pleas. VPon Wednesday being the 25th day of April and the first day of this Easter Term which was the first day which I came to Report and it was agreed by the Court the same day that if one come to the Bar to make his law in debt brought against him upon a simple contract that the Plantiff shall be demanded and if he will be nonsuit he may and then the Defendant shall not recover costs against him but as I have heard that this was to have been intended where the Plantiff was an executor or Administrator and not of any other Leonard Barley against Foster BEtween
that he agreed if one say of another that he was foresworn in a Court which is not a Court of record that none action will lye because the party is not punishable for that in perjury but in our case the commission issued out of the high Commission Court which Court to the examination of witnesses is in nature of a temporal Court and had been confirmed by act of Parliment and Serjeant Harvey argued to the contrary that the first words are not actionable and then the subsequent words are uncertain and yet if one say of another that he was foresworn at the Common Pleas barre the words are actionable for it shall be intended that this was upon examination in the execution of Iustice Hobert if a man is foresworn in a Court Baron before the Steward this is perjury but in our case the words are altogether uncertain for it doth not appear what authority the Commissioners had nor yet in what manner he was forsworn and Iustice Hutton said if one man say of another he was foresworn before the Bishope of S. this is not actionable but if one say of another that he was forsworn before the Bishop of S. upon examination by him by vertue of a Commission issuing out of the Chancery this is actionable and Hutton agreed to the case of the Court Baron the same Law by him if that be in a Court Leete but in the principal case Iudgement was arrested Wase against Pretty Ent. Hill 16. Jac. Rot. 1716. WAse against Pretty Ent. Hill 16. Iac. Rot. 1716. in an ejectione firme the case was that one joynt Coppiholder did release to his companion and the question was whether this is good without surrender and admittance for it was objected if this shall be good then a Coppihold shall pass without the assent of the Lord but it was resolved by Hobert Warberton and Winch Hutton being absent that the release is good and Warberton said that by Littleton if 3. Ioyntenants are and one of them release to another he to whom the release is made is in by the releasor but if there are but two then he is in by the Lord or from the first conveyance Winch if two Ioyntenants are in capite and one release to the other the King shall not have a fine for this Alienation but Hobert said that the practice is otherwise at this day but he said that when one joynt Tenant releases to another he is in by the first conveyance and in the case in question the release shall be good without surrender and admittance for the first admittance is of them and of every of them and the ability to release was from the first conveyance and admittance it seems if a Tenant in Capite alien upon condition and afterwards he enters for the condition broken he shall not pay a fine for such an alienation Hitcham Serjeant said that if land be given to two upon condition that they shall not alien and one releaseth to the other this is no breach of the condition Hobert if the King grant you his demeasnes you shall not have his Copihold Winch said that it was adjudged in this Court that where one erected a house so high in Finsbury fields by the wind mills that the wind was stopped from them that it was adjudged in this case that the house shall be broken down Goddard against Gilbert GOddard brought an action upon the case against Gilbert for these words thou art a thiefe and hast stolen 20 loads of my furzes and upon not guilty pleaded it was found for the Plantiff and it was moved in arrest of judgement by Hitcham that these words are not actionable for though the first words of themselves had been actionable yet when those words are coupled with other words which do extenuate them it is then otherwayes for if a man say thou art a thiefe and hast stollen my apples or my wood it shall be intended that the apples and the wood were growing and he said there is no difference to say in this case you are a thiefe and have stollen 20 loads of my furzes but it was said by Iustice Warberton that the furzes shall be intended to be cut for that is the most natural and proper signification of the words and Hobert chiefe Iustice said that it is true that it is the most proper signification of the words but yet they are furzes when they are growing as well as when they are cut down and Hobert chief Iustice said if a man say of another thou art a thief and hast stollen my corn in this case the words shall be taken in the better sence and judgement in the principal case ought to be arrested and it was the opinion of him and of Winch that there is no difference where a man said thou art a thief and hast c. and thou art a thief for c. ut supra but it was adjourned Winch Iustice said I was of counsel in the Kings Bench in a case where a man had a window in the backside of his house and another man erected a wall within a yard and half of that in his own ground and adjudged in an action upon the case that the wall shall be broken down Warberton certainly this was an antient house but Winch said that made no difference It was ruled that after imparlance in debt upon an obligation the Defendant shall be received to plead that he was alwayes ready to pay notwithstanding it was strongly urged 13. Eliz. Dyer 306. is to the contrary Gilbert Lewings against Nicholas March. GIlbert Lewings brought an action of covenant against Nicholas March and deâ—lared that Charles Cornwallis had granted the next avoydance to the Church of D. to Thomas March and that Nicholas March was his Executor and that Nicholas March assigned this to Gilbert Lewings his executors and assignes to present to the same Church when that shall become void and covenanted that the same person who shall be so presented by him shall have and enjoy that without the let or disturbance of the said Charles Cornwallis or Nicholas March or any of them or any by their procurement and after Gilbert Lewings presents I. S. and after I. W. presented an other claiming the first and next avoydance by the procurement of Charles Cornwallis and ruled that the declaration was not good for it ought to say that Charles Cornwallis granted to I. w. the next avoydance and procured him to disturbe and that by his procurement he was disturbed Athow It seems to me to be but little difference to say he disseised me by the procurement of I. S. and he commanded I. S. to disseise me and he did that accordingly at his command Sir Edward Sackvil against Earnsby VPon a motion made by Sir Randal Crew in the behalf of Sir Edward Sackvil against Earnsby the case was that two brothers were seised of land to the eldest for life the remainder to the youngest in tail and they
covenanted with Sir Edward Sackvil to levy a fine to him of that land before the fine acknowledged the eldest brother dyed and the question was whether the youngest shall be compelled to levy the fine and presidents were commanded to be searched concerning that matter Note that it was said that where a commission issued out of the Court of wards to 4 persons or to any 2 of them and one of them refuse to be a Commissioner and the other 3 sit as Commissioners and he who refused was sworn and examined by them as a witness and ruled that this is good for though he refused to be a Commissioner yet he is not excluded to be sworn as a witness In evidence to the Iury the case was that Tenant in taile bargained and sold his land to I. S. and his heires and I. S. sold to the heire of the Tenant in taile being of full age and Tenant in taile died and the heire in taile claimed to hold his estate and the doubt was whether he was remitted or no Hobert was of opinion that after the death of the Tenant in taile that the heire is remitted for if Tenant in taile bargain and sell his land the issue in taile may enter and where his entrie is lawful there if he happâ— the possession he shall be remitted Hutton and Warberton Iustices contrary For at the first by the bargain and sale the son had fee and then the estate of the son may not be changed by the death of the father he being of full age when he took this estate and this was in an Ejectione firme of land which concerns Sir Henry Compton and the Lord Morley and Mounteagle White against Williams VVHite brought an action of accompt against Williams as his Bayliff to his damages 100. l. the Defendant pleaded he never was his Bayliff and it was found against him and the Iudgement was given that he should render an accompt and at the day the Defendant made default Ideo consideratum est per Curiam quod Querens recuperet versus predict Defendent 42. l. 10. s. and upon that the Defendant brought a writ of error and assigned for error that the Court gave Iudgement of the value without inquiring of the value and it was holden by Gaudy and Fenner only present that the Iudgement ought to be given which the Plantiff had counted of Baron Altham contrarie for the Court may in discretion give a lesser summe Hill 43. Eliz. B. R. vide 14. E 3. Accompt 109. 20. E. 3. 17. Sir George Topping against King VVA st was assigned in the cutting of Elmes and other Trees to such a price and Iudgement was given for the Plantiff by nihil dicit and a writ of inquiry of dammages issued upon that and the Iury found to the dammages of 8. s. and upon this Davies the Kings Serjeant moved to have a new writ of inquiry and that the old writ shall not be returned for the dammages are too litle Winch said all is confessed by the nihil dicit Hobert The Iury here have found the value and presidents were commanded to be searched and Hobert said that if an information is for ingrossing of 1000 quarters of corn and Iudgement is given by nihil dicit and a writ of enquiry issues which findes him guilty of 100. yet this is good And not that at another day the case was moved again it was between Sir George Topping and King and it was said if a man recover in waste by nihil dicit and a writ of inquiry issues the Iury in this case may inquire of the dammages but not of the place wasted for this is confessed and so are the presidents according and Hobert said if the Defendant is bound by the nihil dicit as to the place wasted for what cause shall not he be bound as to the dammages and by all the Court if the jury finde dammages only to 8. s. the Plantiff shall not have Iudgement for it ought to be above 40. s. Hob. this is in the discretion of the Court in this case and it was also said in this case that upon the grant of all the trees and after the grantee cut them and new ones grow upon the slumps which in time will be trees that in this case the grantee shall have them also by Hobert Wetherly against Wells in an action for words VVEtherly against Wells in an action upon the case for these words thou hast stollen hay from Mr. Bells racks and upon not guilty pleaded it was found for the Plantiff and now it was moved in arrest of Iudgement because he had not shewed what quantity was of that and perchance it may be of so little a value that it is not fellony and the rather because it is hay from the Racks but Hobert contrary that Iudgement shall be given against the Defendant for the Plantiff for it hath been adjudged lately in this Court that where a man was charged with petty Larceny to steal under the value of 12. d. that an action of the case will lie for the discredit is not in the value but the taking of that with a fellonious intent and yet it had been adjudged in this Court that where one said of another thou art a thief and hast stolen my trees that in this case an action will not lie but this is by reason of the subsequent words trees for it is said Arbor dum crescit lignum dum crescere nescit And Winch said that it had been adjudged actionable to say thou art a thief and hast stolen my corn and yet perchance not exceed 2. or 3. grains and Warberton said that it had been adjudged in the Kings Bench that where one said thou art a thief and stollest the corn out of my field that no action will lie The Earl of Northumberland and the Earl of Devon NOte that in the case of the Earle of Northumberland and the Earle of Devon execution issued out for dammages recovered against the Bayliff of the Earle of Northumberland by the name of I. S. of D. and there was I. S. the father and I. S. the son and the father being dead the son issued his writ of Idemptitate nominis and he prayed to have a supersedeas and Warberton demanded of Brownlow if he had any such president to award a supersedeas in such case who answered no and Warberton and Hutton being only present said that they will advise of that Sir George Sparke Prescription IN a Replevin for the taking of a horse in 5. acres of land in such a place and the Defendant avowed as Bayliff to Sir George Spark and shewed that Sir George Spark and all those whose estate he had in the land had used time beyond the memory of man to have herbage and pasturage in all the 5. acres when that was not sowen and upon this plea the Plantiff demurred Ashley argued for the Plantiff that the prescription is void and this is not
like to the case of a common for a man may prescribe to have common in another mans land for this is but a reception of the profits with the mouthes of his cattle but in our case it is all one as to prescribe to have the land it self and I may not prescribe to have land it self for I may not say that I and my ancestors had used to have such land for such a prescription is void to which Hobert chief Iustice and all the Court agreed as to that point and then to prove that this is all one as to prescribe to have the land it self he said that if a man lets the profits and the herbage of land for years this is a lease of the land it self as was lately adjudged in this Court which was also granted by the Court also he said that this appears by the 27. of H. 8. 12. that a man shall have a praecipe quod reddat of pasturage or herbage but not of common and a formedon lyes of pasturage 4. E. 4. 2. the Regist fo 177. Ejectione firme lyes of pasturage and so he concluded that upon the matter he prescribed to have the land it self but Hobert chief Iustice and all the Court to the contrary that the prescription is good for that may have a good beginning by grant for a man may lawfully grant the pasturage and the feeding of his land when that is not sowed and by consequence if that may be good by grant it may be good by prescription and judgement was commanded to be entered for the Defendant See prescription 51. and 52. In trespass the Defendant pleaded in barre that such a one was seised of land in the right of his wife and that his wife died seised and that he was heire to her entered and gave Colour to the Plantiff the Plantiff replied that the husband and wife were joyntly seised and that the wife died after whose death the husband was seised by Survivor-shipp absque hoc that the wife died seised and Warberton and Hutton being only present the traverse is not good that the wife did not die seised but it ought to be that she did not die sole seised In trespass for the taking of goods in a place in yorkshire and the Defendant justified as servant to the Bishop of Durham and he shewed that the Bishop of Durham had a Faire and that time beyond memory he and his predecessors had used to seise the cattle that were sold if he who bought them refused to pay toll and if the thing taken was not redeemed within such a time he might sell the same And he justified in a place in Durham absque hoc that he was guilty in Yorkshire and by Warberton and Hutton this is a good traverse to the place for it is local If a Capias issued here to have the body of such a one at Westminster such a day and the Sheriff bring the body or return the writ before the day this is good by Iustice Warberton Tutter against Fryer TUtter against Fryer a rent charge was granted for years with a nomine poenae a clause of distress if that was not paid at the day and the rent was behinde the years incurred and it was moved by Athowe that though the years are incurred that he may distrain for the nomine poenae but the Court was of a contrary opinion for that depends upon the rent and the distress is gone as to both of them Duncombe c. against the Bishop of Winchester c. DUncombe and others against the Bishop of Winchester and others Defendants in a Qu Imp. and the case was that Sir Richard Weston was seised of the said Church in fee in grosse and was convicted of recusancy and a Commission issued to certain Commissioners to seise two parts of his lands and goods and they seised this advowson inter alia into the hands of the King and the King granted the advowson to the Plantiff and the Church became void and whether the King or the university of Oxford shall have that was now the question and it was appointed to be argued the next Term. Potter against Turner IN the Kings Bench Pasch 19 Iac. the case between Potter and Turner was as I conceived to this effect A. was indebted to B. in 20. l. and C. was indebted to A. in 30. l. and A. in satisfaction of the debt which he owed to B. assigned the debt of 30. l. which C. owed to him and made a letter of attorney to sue in his name A. and B. acquainted C. with this agreement and C. promised to B. in consideration that he will forbear till such a day that he will pay him the money and upon this promise he brought the action against C. and he pleadded non assumpsit and it was found for the Plantiff And it moved in arrest of Iudgement that the consideration was not sufficient according to Banes case Coke 9. If executors who had not assets promise to pay a debt of the Testator this shall not binde them because they who made the promise were not chargeable but on the other side it was said by Whitwick of our house that this was a good consideration for the assignement of that debt was lawful and no maintenance at all as appears by 15. H. 7. 6. and a recovery by B. against C. is a good plea in barre in an action brought by A. against C. but Dodderidge Houghton and Chamberlin only present to the contrary for B. here had only an authority to sue and this is at all times Countermandable by A. As if I deliver goods to my servant to deliver over to I. S. and I. S. promise my servant that in consideration that he will deliver them to him he will give him so much money this is no consideration except that they are delivered accordingly for this is only an authority to deliver goods which is alwayes countermandable by me And Iudgement was entered for the Defendant vide 4. E. 4. 14. Ewer and Vaughan IT was said by Dodderidge and A. in the argument of the case between Ewer and Vaughan that it had been adjudged by all the Iustices in one Trewmans case that no writ of error lyes of a judgement given in the Stanneryes in Cornwal A Prohibition to the Admiralty MAny poor Marriners sued one Iones the Master of a ship for wages in the Admiral Court and judgement was given against Iones and now he prayed to have a prohibition and he suggested that the contract was made at London in England and so the suit was not maintainable in the Admiral Court but the prohibition was denyed because he had not sued his prohibition in due time viz. before a judgement given in the Admiral Court which in point of discretion they disallowed and also these are poor Marriners and may not be delayed of their wages so long and besides they may all joyn in a Libel in the Admiral Court but
if they sue here they must bring their actions several for they may not joyn here in an action and therefore it is good discretion in the Court to deny the prohibition Pastons case it was said by Hobert that a Coppiholder may hedge and inclose but not where it was never inclosed before and agreed by him and Warberton that a Coppiholder may dig for Marle without any danger of forfeiture but he ought to lay the said Marle upon the same Coppihold land and not upon other land and this was upon the motion of Hendon Serjeant In a case which concerned the Lady Mollineux and Fulgam the case was in an Ejectione firme that the Iury found the defendant guilty of 10. acres and the judgement was entered of 20. acres and upon that the defendant brought a writ of error in B. R. and now the Plantiff prayed that this might be amended and Finch argued that this ought to be amended and he cited a case Pasch 8. Iac. Rot. 525. Iohn Chilley was Plantiff in debt and recovered and the judgement was that the aforesaid Henry Chilley should recover c. and upon that error was brought in the exchequer chamber and that was assigned for error and yet after Pasch the 9th Iac. this judgement was amended in the Kings Bench and Iohn inserted for Henry and diminution was alleadged and the first judgement was affirmed in the exchequer chamber and he cited a case M. 8. Iac. Rot. 1823. in C. B. dower was brought of 4. Gardens and judgement was given to recover in 3. and upon this error was brought and yet this judgement was afterwards amended and he cited a case Pasch 17. Iac. between Sherley and Underhil in a Qu. Impedit where it was amended after error brought and he vouched one Masons case 12. Iac. in an action upon the case against the husband and the wife for words which were spoke by the wife and judgement was given against them and that the wife capiatur where it should be husband and wife Capiantur and yet this was afterwards amended Hendon contrary after error is assigned it may not be amended in point of substance and the case of Chilley may be good Law for the misnaming only et praedictus Henricus where was no Henricus before could not have other signification or intendment then Iohn who was named before in the record Warberton and Hutton the misnameing Henry for Iohn is matter of substance cleerly and then Hendon said that now the judgement shall not be amended because the prayer of the Plantiff to have that amended came too late because it is after error brought and diminution alleadged and the record certified and then both the parties are concluded but if only a writ of error was brought and no diminution was alleadged that then the judgement may be amended and he said that he had not found in any book where any amendment was after diminution alleadged as here and he cited 22. E. 3. 46. in dower it was assigned for error that no warrant of Atturney was entered for the Defendant and ruled that this may not be assigned for error aâ—ter a scire facias sued see 4. E. 4. 32. but Hobert chief Iustice said that it shall be a brave case that our judgements shall be made good or bad at the pleasure of Clarks and we shall not be able to amend them to which Warberton also agreed And day was given over to speak to that again and after in the same Term this judgement was amended per Curiam Action of debt upon a bond and the Condition was to save the obligee harmless of a nomine poenae against Mary Moore and he pleaded that he had saved him harmless and per Curiam this is not good for if he will plead in the affirmative as here he ought to shew how he had saved harmeless but if he had pleaded in the Negative as he might well then non damnificatus is a good plea generally Harrington against Harrington in accompt HArrington brought an action of accompt against Harrington and declared of the receipt of moneys by the hands of a stranger and the Defendant pleaded in barre a gift of the same money afterwards by the Plantiff to him and it was argued by Towse that this was no plea in barre of an accompt but it is a good discharge before Auditoâ—s and he cited 28. H. 6. 7. Hendon to the contrary and said the opinion of Brian chief Iustice 21. E. 4. is that he may plead that in barre of accompt and Warberton Iustice being only present agreed for by the gift it is his own moneyes and herefore he may plead that in barre It was said by Warberton that if an Advowson is holden of the King and the Tenant alien without licence that the King may not seise that without office which was granted by Hobert and by Winch only present and in the same case by Warberton that a scire facias issuing against the Alienee will not intitle the King but ought to be an office found and it was also said in the same case by Serjeant Iones that the ordinary shall have 28. dayes to examine the ability of one who is presented by the canon Law and the same Canon Law is that the Patron shall not present another during the 28. dayes Goddard against Gilbert GOddard brought an action upon the case against Gilbert thou art a thief and hast stolen 20. load of my furzes and upon non culpabilis pleaded it was found for the Plantiff and now it was moved in arrest of judgement by Hitcham for where words may be taken in a double sense one actionable and another not actionable they shall all times be taken in the better sense and in our case to take furzes may be fellony and it may be not fellony for if they are growing they are not fellony and it shall be intended that they were growing rather then cut down and no man will presume that any will take 20. loads of furzes with a fellonius intent because the carriadge of them is visible to all the world for it shall not be intended that he carried those in the night and so he prayed that the Plantiff may be barred Attoe Serjeant contrary words which implies a double signification shall be taken in the worser sense which tends most to the disgrace of the party for they shall be supposed to be spoken in malice and so with a purpose to defame the party and he cited a case Trin. 2. Iac. B. R. Rot. 663. Kellam against Monest thou art a thief and hast stolen my corn and adjudge to be actionable Hobert Warberton and Winch contrary for words shall be taken in the better sense and not in a strained sense to punish the party which spake them as if one say to another I wonder you will eat or drink with him for he hath the pox now every one that heareth that will suppose that he means the french pox and yet in
it is that if the Lord had seisin of more then the very services in this case it may not be avoyded in avowry and no fall tenure shall be avoyded c. but when he joyns another falsity and that is in the quantity of land now the false quantity of the rent had made the tenure traversable and the judgement was commanded to be entred accordingly Trin. 19. Jac. Thomas Bull Executor c. against Fankester THomas Bull Executor of William Bull brought an action against Fankester and declared that the Defendant enfeoffed his Testator in certaine land and that he covenanted for him and his heirs that he was seised of a good estate in fee and he alleadged the breach upon which they were at issue and now Attoe moved in arrest of judgement first because the Plantiff sueing as Executor had not shewed the Will for it hath been adjudged here that if a man bring an action as executor and do not shew the Will that the Defendant may demurre upon that because it is matter of substance but Hobert said it is very good because the Defendant had admitted him to be responsible but it is true he might have demurred upon the declaration as we often times adjudged here secondly Attoe said that the covenant being made with the heire the executor shall not have an action of covenant for it is annexed to the land which was granted by Hobert and Winch being only present in the Court. Note that it was said at the barre and agreed by Hobert that if the debtor make the dettee his executor he may now retain in debt against him and safely plead plene administravit if he had no other goods and shall not be driven to his special plea and so it had been agreed often times in this Court Parson and Morlees case PArson and Morlees case it was said that the Lord Chancellour presented to a venefice which belonged to the King which was above the yearly value of 20. l. per annum and this was referred to Hobert chief Iustice and to Tanfield chief Barron to certifie whether this was meerly void it remained good till it was avoyded Harris against Wiseman HArris had procured a prohibition against Wiseman who had libelled in the spiritual Court against the Plantiff for a frat in the Church which did belong to his house and it was said by Hobert and Winch only present that a man or a Lord of a mannor who had any Isle or a seat in the Church c. and he is sued for that in the spiritual Court he shall have a prohibition but not every common parishioner for every common seat and upon the first motion at the barre in this case day was given over to the Defendant to shew cause wherefore that a prohibition shall not be granted and the Defendant not having notice of that after the day the Plantiff had a prohibition and now after the day he shewed a good cause and upon that a supersedeas was granted to stay the prohibition in that case Aylesworth against Harrison AYlesworth against Harrison in debt against an executor the question was whether he may plead plene Administravit and give in evidence a debt in which the Testator was indebted to him or whether he may plead the special matter that plea amounting but to the general issue and it was argued by Harris Serjeant the Defendant may plead the special matter and shall not be bound to the general issue to leave that to the lay people who may suppose such a retainer to be an administration and he vouched the 15. E. 4. 18. if a man illiterate seale a deed which is read to him in another manner c. and he delivers that as an escrow to be delivered over as his deed upon conditions performed and this is delivered over before the conditions performed he may in this case plead the special matter and conclude so not his deed or if he will he may plead the general issue of non est factum and so is 39. H. 6. in dower the Tenant said that before marriage the husband infeoffed him and that after the Tenant let to him at Will and that the husband continued possession during his life absque hoc that he was seised of such an estate of which she might have dower and exception was taken there because that this only amounts to the general issue and yet ruled to be good for the lay people may conceive such a continuance of possession during the life of the lessee to be such an estate of which the wife may have dower if this were put upon the general issue and in our case because he had liberty to plead specially or generally he prayed that the Defendant may be admitted to plead specially and that he may not be bound to the general issue Serjeant Hendon to the contrary if one plead a plea which amounts to the general issue see Layfields case Coo. 10. and though in Woodwards case commentaries there was such a plea pleaded yet this doth not prove the contrary for in the same case no exception was taken by the Plantiff and presidents do prove that the Defendants in this kind have been compelled to plead the general issue Hobert if no special matter may be alleadged to the contrary the Defendant shall be compelled to plead the general issue and this is good discretion in the Court to take away the perplexity of pleading because one plea is as good as the other to which Winch being only present agreed and it was ordered that the Defendant here plead accordingly In debt against the heire upon the obligation of his father and in the declaration the Plantiff omitted these words obligo me et hered es meos c. and after error brought the Plantiff prayed that this might be amended because it was the misprision of the Clark only Hobert and Winch said that this shall not be amended for it is a matter of substance but because the clark who made this misprision was a good clark day was given over c. Widdow Archers case IN debt against the Widdow of Archer being executrix of her husband and the Plantiff declared that neither the Testator in his life nor the executrix after his death had paid that omitting those words licet saepius requisitus c. and evil but this omission was amended Sir Edward Grubham against Sir Edward Cooke SIr Edward Grubham brought an audita querela against Sir Edward Cooke upon a recognizance of 4000. l. and this was acknowledged to the use of his Mother and shewed that the conusor had infeoffed him and another in the land and that the conusee had sued execution only against him and it was found for the Plantiff and it was so moved in arrest of judgement by Ashley Serjeant first because he had not shewed in this audita querela when the Statute was certified nor yet the Teste nor yet the return of the writ of extent
had said that he took money for ingrossing of Feodaries which is desceit without question that had been actionable but there may not be Couzning without desceit And he cited Boxes case where one said of an Attorney that he was a maintainer of suits and a Champerter action lies for it shall be taken to be a scandal to him in his profession for though an Attorney may maintain suites yet he ought not to be a Champerter and he further said that he who will maintain an action for words ought to be scandalized in his publick profession and he cited a case which was in the Kings Bench Brad against Hay and the Plantiff declared that he was Bailiff to such a one and that he had the buying and the selling of his Corn and that the Defendant said of him that he sold by false measures and adjudged that no action lies for it is not a scandal to him in his publick profession and so 36. Eliz. one said of a Merchant that he kept a false debt book and because he may be a Merchant without a debt book it was ruled that an action doth not lie but if he had said of him that he deceived men by buying and selling these words had been actionable and he said that two things are required to every publick profession science and fidelity and when a man who hath a publick profession is scandalized in either of those an action of the case lies and cited Palmers case of Lincolns Inne he being a Lawyer 't was said to him by one that he had as much Law as a Iackan-apes and adjudged to be actionable for it is a scandal to him in his profession and so Sir Miles Fleetwoods case where he who is Plantiff in this action was Defendant in that he being receiver of the Court of Wards one said to him Mr. deceiver hath Couzned the King and hath dealt falsly with him and adjudged that an action upon the case lies and yet he did not shew wherein he had Couzned him or dealt deceitfully with him but yet because it appears to the Court that he might deal deceitfully and Couzen the King therefore actionable and he cited Birchleys case you have dealt corruptly an action lies and yet he did not shew wherein he had dealt corruptly and here he had said he was a Couzner by the receipt of money which is an express scandal to him in his office Winch accordingly to every office of trust is a condition in Law annexed that he deal honestly and justly and he cited Wingates case in the Kings Bench one said to another is Wingate your Attorney and the other said that he was and the other replied take heed and follow him well for else he will make you throw your purse over your bosome and it was adjudged that an action lies for it is a scandal to him in his profession and it shall be taken as much as if he had said he will make you spend all the money in your purse if you look not the better to him and so applied this to the principal case and in this case judgement was commanded to be entered for the Plantiff in the action if no other cause be shewed before such a day An action upon the case was brought for these words the Plantiff did load a ship of my Fathers with Barley and did steal and Couzned 7. quarters thereof in measure and upon not guilty pleaded it was found for the Plantiff and now it was moved in arrest of judgement that the word Cozned being joyned with the word stole had taken away the force of that and made it but Cozning but Hutton contrary and that it shall be understood that he stole 7. quarters in measure and quantity and Winch seemed to agree and it was adjourned and an other day awarded that an action lies Godfrey Wade Alias Mack-Williams case GOdfrey Wade and others in an ejectione firme and the case upon a special verdict was to this effect Henry Mack-Williams the father was seised of land and being so seised he conveyed that to the use of himself for life the remainder to his wife for life the remainder to the heires of their two bodies engendred the remainder to the heires of the bodie of Mack-Williams the Feoffor and the remainder to his right heirs in fee and he had a son by his wife named Henry and 5. daughters and he died and afterwards the son in the life of his Mother by deed indented leased to White-Head for 31. years rendring rent and afterwards he leavies a fine to the use of himself and his heirs in fee and died and after whose death the Mother suffered a recovery within six moneths in which 4. of their husbands were vouched and the recovery was to the use of the feme for life the remainder to every one of the daughters in fee and the sole doubt was whether the lease made by Henry the son is defeated by this recovery and it was argued by Harvey Serjeant that the lease shall stand good notwithstanding this recovery suffered by the Mother for he said that Henry Mark-Williams being issue in tail and also being heire to the remainder in fee who made this lease by indenture in this case this lease issues as well out of the estate taile as out of the reversion in fee and the fine leavied in the life of his Mother binds and bars the estate taile at the time of the fine and then the lease being drawn out of the reversion in fee which discended to the daughters after the death of their brother this reversion shall be charged with the lease and the recovery had not destroyed that and this case will differ from Capels case for it is agreed if tenant in tail bee the remainder in fee and he in remainder in fee granted a rent charge and after Tenant in tail suffer a recovery by this the rent is destroyed for there he who suffered the recovery was Tenant in tail in possession but in our case when the son had leavied a fine in the life of his Mother by this fine the tail is destroyed and the Mother is become Tenant in tail after possibility of issue extinct which is only an estate for life in quantity and then though she suffers a recovery yet this doth not destroy the lease made by Tenant in tail when there was also a fine leavied to confirm that Secondly he argued that when the issue in tail in the life of his Mother made a lease for yeares by indenture and then leavied a fine and died and then the Mother being Tenant in tail and joyntress within the Statute of 11. H. 7. as in our case she is and she suffers a recovery and vouches the daughters in reversion and lessee for years enters after the death of the feme by force of 11. H. 7. for lessee for years is a person who may enter within the express words of that Statute which gives entrie to any person
reason the factor may sell the goods without ready money and this is good reason for perchance the goods are of that nature that they will not keep without perishing by which clearly it appears that if I deliver goods to another to Merchandise and to sell he may sell them without ready money but if my factor or Bailiff will sell them to one which he knows wâ—ll prove a Bankrupt without ready money this is not good but secondly he held the custome as it is here alledged not to be good for then the partie shall have no remedy for his money except the factor will go into Spain and sue the Bill and the laws of Merchants are special laws for their benefit and not for their prejudice and this custome as it is alledged is too large but if he had alledged that such Bill taken by the factor shall be as good and effectual to the Mr. as if it had been taken in his own name this had been good besides the custome is not good for it is alledged to be that when the factor had delivered the Bill to the owner of the goods this shall be a discharge to him who was the factor and here is no time set within which this may be delivered and so for ought is shewed it may be delivered 10. years after which may be good and to that which had been said that the laws of Merchants are national laws he denied that for every Kingdome had its proper and peculiar laws and though this is the law of Spain and national to them yet this ought to be reasonable or else it shall not binde and judgement was commanded to be entered for the Plantiff Hobert and Winch being only present It was ruled that he who had land in a parish who did not inhabit there shall be chargable to the reparation of the Church but not to the buying of ornaments of the Church for that shall be levied of the goods of the parishioners and not of their lands by Sir Henry Yelverton and said to be so formerly adjudged In trespas the Defendant pleads that one such was possessed of a term for years and bring so possessed by his last will and Testament devised that to the Defendant and died after whose death the Defendant entered and was possessed by vertue of the devisee upon which plea the Plantiff demurred generally and Hutton thought this plea prima facie to be good though the Defendant had not expresly alledged that the devisee died possessed but his plea implies that for he had said that he entered by vertue of the devisee and was possessed and this only matter of form and not matter of substance and no cause of general demurrer which Winch also granted that this was also matter of form and not matter of substance Gage against Johnson for his fees GAge brought an action against Iohnson as his servant and Solicitor to the Defendant in a suit in the Kings Bench taking for every Term 3. s. 4 d. for his fees and for this he brought his action of debt and Serjeant Hitcham moved in arrest of judgement and he urged the case of Samuel Leech an Attourney of this Court in an action upon the case brought by him upon a promise to pay so much for the solliciting of a cause of the Defendant and the opinion was that the action will not lie for it is in nature of maintenance for a Solicitor may not lay out money for his Clyent and if an action upon the case will not lie then much less an action of debt and Hobert said that a Councellor may take fees of his Clyent but he may not lay out or expend money for him and the same law of an Attourney for if he did disburse money for him he doubted much what remedy he should have and he further said a servant may follow business for his Mr. and may take money for his labour for if I retain my servant generally he is not bound to follow my suits at law except at his pleasure for that is an extraordinary service and for that if I will say to my servant that if he will follow my business at Westminster I will give him so much for his pains my servant in this case is not without his remedy but if his service is coupled with Soliciting to take money for his pains his opinion was that no action will lie to which the other justices also agreed and they arose Wright against Black before NOw the case of Wright and of Black was moved again and the case was that Wright had brought an action upon the case against Black and Black for that the Defendants intending to make away his good name and to cause him to lose his goods did maliciously and without cause at Norwich in the County of Norfolk prefer a Bill of indictment at the Sessions of peace containing that the Plantiff stole two bundles of fetches and also did cause and entice one I. S. to give in evidence that the indictment was good and true by reason of which he was bound to Answer that at the next Assiles and there he was accquitted and whether the action was maintainable was the question and Attoe argued that the action is maintainable though it is not shewed that the Bill of indictment was found and he vouched a case which was Hill 10. Iac. B. R. Rot. 921. between Whorewood and Cordery and his wife Defendants which case and judgement was after affirmed in the Exchequer Chamber upon a writ of error and the case was that the Plantiff declared that the Defendants intending to take away his good name did charge him to have ravished Dorothie Coxe and maliciously exhibited a Bill of indictment containing that the Plantiff did felloniously ravish the said Dorothie their daughter and did give this in evidence to the Grand jury who found Ignoramus and yet it was adjudged that an action lies and he cited a case the 19. Iac. in B. R. Deney against Ridgy where was only an indictment preferred concerning the stealing of a horse and no more and yet an action lies Hobert chief Iustice said that if seemed to him that it is actionable for this is as great a scandal to give this in evidence to the Grand jury as to publish this upon an Alebench and as the course of Iustice ought not to be stopped so neither ought the good name of man in things which concern his life be taken away without good cause and I have heard that judgement was given another Term for the Plantiff but quere better of that Hoes case HOes seised of land in fee he devised that to his wife for life the remainder of one parcel of that to Thomas his eldest son the remainder of the other parcel to his youngest son in fee and this devised was with proviso that the feme shall pay his legacies and also his will was that in case his wife died before the payment of his debts and legacies
Leonard Barley Plantiff and Foster Defendant it was agreed without scruple by Winch and Hutton Iustices only present in the Court that if a man infeoff another to the use of A. for life and after his death to the use of his daughter till B. pay her a 100. l. and then to other uses c. to the use of B. I. in this case the daughter had not any remedy for the 100. l. if B. will not pay that except he make a new promise and then upon that she shall have an action upon the case upon which if shee recover and have satisfaction the use will arise to B. but otherwise not though she have judgement to recover that and whether this same is discharged is triable by the record of the recovery John Theaker's case NOte that one Iohn Theaker was seised of certain lands and died in Ianuary last and his wife was married to one Duncombe within a week after and one Alphonsus Theaker entered into the land as Cozen and heir to Iohn Theaker deceased and the wife of Iohn Theaker who was dead gave out words that she was with child by her first husband and upon that Alphonsus Theaker had a writ de ventre inspiciendo directed to the Sheriff of London to inquire by 21. Knights and 12 women in the presence of the Knights whether she was with child or no and the Sheriff executed that and returned that they thought that she should be brought to bed within 20. weeks and upon that it was prayed that the Court would award according to Bracton that she may be taken into custody and that she may have divers women of fashion which may attend her daily till she is delivered that no deceit may be contrived against Alphonsus to deceive him but the Court would not agree to that though there was a president urged Hill 39. Eliz. Rot. 1200. Sir Percival Willoughby and the Lady Willoughby his brothers wife in this Court but the Court awarded that she should not be taken and detained from her husband but that a writ should issue to the Sheriff of Surrey whither the woman was now removed to return divers sufficient women which may resort to her daily till she is delivered which was done accordingly Fosters case FOster brought an action of debt of 300. l. against C. upon 2. obligations dated 20. December to pay him 150. l. c. and averred he had not paid that and did not say nor any part of that and Bing took exception to that in arrest of judgement because he had not averred that he had not paid any part of that and perchance he had paid part but not all but Hutton said that it is very good though this be upon several bonds and it any be paid it ought to come of the other part to shew that Woolsey was outlawed at the suit of Iones in an action of debt upon an obligation and the Capias ut legatum was taken out of the Court of the common pleas where he was outlawed in Trinity Term 21. Iac. and in December following Woolsey was warned to be at the Town of Shrewsbury to chuse Burgesses and before the day a binding process did issue out of the Marshes of Wales against Woolsey after Iones had delivered the Capias ut lagatum to the Sheriff to take Woolsey and the same morning that the election was Woolsey was taken upon the Capias ut lagatum but he was suffered to go and to give his voice in the election and then the Baileys of the Marches of Wales arrested him upon the process and because the Bailiffs of the Sheriff would not suffer the Bailiffs of the Marches to take him away from them there was gathered a great riotous companie on both sides but the Bailiffs of the Sheriff took him away and they and all them who took their parts were sued in the Marches for the withstanding their Bailiffs and upon this Harris moved for a Prohibition and the Court c. Winch and Iones said that if he is outlawed bona fide it shall be granted for the Bailiffs of the Sheriff had lawfully arrested him and it is lawful for them to keep him and for others to assist them and Winch said that if the persons which stood by had refused to help them this had been also sinable and it was said that the suffering him to go to the election was not any signe of a fraudulent arrest nay if the partie himself had consented to a fraudulent arrest upon a Capias ut lagatum this had not been punishable though they had known that there had been binding Process out against him because the arrest the detainer was lawful and agreed in the principal case that a Prohibition shall be granted and it was said that the other side are punishable because they did not aide the Sheriff for the officers of the other side were the cause of the Riot Sir Michael Wharton and Sir Edward Hide IT was agreed without scruple between Sir Michael Wharton and Sir Edward Hide that if a man in an avoury convey a good estate for years to two and one release to another that is not good without the shewing of a deed in that case Michael Bone and the Bishop of Norwich IT was agreed between Michael Bone and the Bishop of Norwich in trespas that by the lease of a Grange and all houses and buildings thereupon and belonging or let heretofore to one Edward Garrard that in this case if it may not be proved that the Tithes were not let to Garrard then they will not pass by this lease for it is not possible that Tithes shall pass as appurtenances to a grange because that they are of several natures except as Winch said that the Grange is the Gleab for if it is then the Rectory may pass by this name William Trist and Cawtrel at the suit of Heath WIlliam Trist and Cawtrel were bound in an obligation of 40. l. to one Heath who brought an action of debt upon that and recovered at the assizes and now it was moved in arrest of judgement that this was a mistrial for the venire facias was between Heath and Iohn Trist and the Sheriff returned that to be between Heath and William Trist and for this variance he shall not have judgement in the Case Hutton said in the case between Mankleton and Allen. MAnkleton and Allen that is a man had goods taken from him which taking he supposeth to be fellony but it is not and he complains to a Iustice of peace of that who commits the offender and bindes the other to prosecute and he accordingly preferred a Bill at the Sessions and the other is acquitted and the opinion of Hutton in this case was that this is not punishable by an action upon the case in the prosecuter for that shall never be maintained without apparant malice in the prosecutor Blunt and his wife against Hutchinson BLunt and his wife brought a quare Impedit
against Hutchinson and made title to present to the Church in the right of his wife and after the issue joyned and before the venire facias the wife died and the Plantiff shewed that himself had took out a venire facias in his own name and upon that Harris demurred in law because he supposed that the writ was abated but Winch was of opinion that the writ was not abated because this was a Chattel vested in the husband during the life of the wife Ferrers against English IN an action upon the case upon a promise between Ferrers and English and upon non assumpsit it was found for the Plantiff and now it was moved in arrest of judgement that the venire facias was not well awarded for it was proecipimus quod tibi venire facias Duodecim liberos et Legales homines Coram Henrico Hobert apud Westmonasterium where that ought to be Coram Iusticiariis nostris and therefore the writ being insufficient it is not amendable and for that he cited the case where the venire facias was awarded to th Coroner and that ought to be awarded to the Sheriff and this adjudged to be erroneous this case was answered that this was the custome and there was a case alledged to be adjudged 30. Eliz. between Cesor and Story where a Capias did issue out of this Court in this form Ita quod habeas Corpus ejus Coram Iusticiariis omitting apud Westmonasterium and this was reversed for error but this was answered to be in an original which ought to be precise in every point but Serjeant Crook said that because this was but judicial process and the trial is taken upon the habeas corpus that it is amendable for in all cases where the roll is right though there be an error in the venire facias yet this is amendable Sir Robert Nappers case A Rent was granted to Sir Robert Napper and if it happen that this annual rent to be behinde that then the land shall at all times be open and subject to distress of the Grantee according to the true form and effect of the said indenture and upon all the pleading a demurrer was joyned and the sole doubt was whether the last words were a distinct covenant by themselves for if they are then the obligation is forfeit for the lands are not open to distress because that the mother of Sir Robert held that till the age of 24. years or whether they are part of the former covenant and then the former worde will qualifie that because there was not any act made by him to the contrary and it was argued by Bawtrie that they are all one covenant for they charge the land with the Annuitie and he covenants that this shall be open to distress and it is all one matter and thing and is therefore a covenant and where one covenant doth depend upon another there one expounds the other so Dyer in Throgmortons case 151. and he urged many cases which are cited there and he cited the Lord Cromwels case where words of proviso are placed between words of covenants yet they will work according to the intent of the persons and there it is said that ex antecedentibus et consequentibus fiat relatio and so it appears to him that this referred to the estate which Sir Thomas had from his father and that he made nothing to impeach or to alter that and he cited the case of Sir Moile Finch though by the fine the Mannor of Beamstone was destroyed yet in the said indenture free egress and regress was reserved to the Courts for the Lady Finch afterwards an other fine was levied of all the lands and Tenements except the Mannor of Beamstone where in verity that was destroyed before and yet the judges did construe this to be a good exception because this was in verity the intent of the parties and there they made a construction upon the covenants which did lead the fine and upon the latter indenture which did direct the others and so the principal case in Althams case the judges did not only adjudge upon the first words of the lease but upon altogether and he cited the case of Hickmote where the exception extends to all the parties of the precedent deed and Hendon argued to the contrary that they were several covenants and yet he granted all the cases cited by Bawtrie but said they all stood upon this difference where it is a joynt thing and where it is a several thing as here and for that reason that ought not to be applies to that for they are distinct sentences and not joynt as is expressed in Sir Henry Finches case Coo. 6. and they ought to be construed as distinct covenants for otherwise they shall not take effect at all for then he had not any remedy for the rent which is expresly against the intentions of the parties and Crawley Serjeant said that if the two first covenants were according to the title and the last was only conditional if the rent was behinde that then it should be open to distress and the Court seemed that they were several covenants but judgement was respited for that time and the same Term the case was moved again by Hendon that they were distinct covenants and that this was the scope of the indenture and the intention of the parties that this should begin presently and secondly the two covenants are of several natures and if the third covenant be not several then it is idle for all is implied in the first and day was further given to advise of that but the opinion of the Court seemed to be for the Plantiff See after Trin. 22. Iac. Westlie against King VVEstly against King in debt the bond did bear date the 11th of February 18. Iac. and this was to perform an award Ita quod the ward be made before Easter of all controversies depending between them in the Star chamber and the Defendant pleaded that there was no award made in the mean time and the other shewed the award and assigned the breach and the Defendant replied that before the award was made c. upon the 16th of March they discharged the Arbitrators and so concluded as at the first they made no award and now Serjeant Davenport moved that he had not maintained his bar quod non fecerit tale arbitrium and have given the discharge in evidence for now it appears that the bond is forfeit but Hutton said that the Plantiff ought to have shewed this discharge and so he had shewed the forfeiture and he said further that the rejoynder is an affirmation of the bar if they were discharged then they made no award and this notwithstanding shewed a forfeiture of the bond but not upon the point which the Plantiff had alledged and Winch said though this is is so yet it appears that the Plantiff had cause of action by all the record before and day was given over in the case
in capite and others in Soccage and he made a devise of all his fee simple lands and left only his lands in tail to descend to the heir which doth not amount to a full third part this is a good devise of all the fee simple lands and this case was also admitted that where the Lord Norrice gave land to Sir Edward Norrice his youngest son and to the heirs of the bodie of the father and then the Lord Norrice died and after Sir Edward died without issue that the son of the eldest Brother who was then dead shall take that as heir in tail and that he in this case had that by a descent from Sir Edward Norrice his Vncle which also doth clearly prove that in this Sir Edward Norrice son of the Lord Norrice was in this case Tenant in tail The residue of Easter Term in the two and twenty year of King James Stephens and Randal IN replevin between Stephens and Randal who made Conusance as Bailiff to the Earl of Bath and he shewed that such land was parcel of such a Chantrey which came to King Edward 6. by the Statute of 1. Edward 6. and also he pleaded the saving of the said Statute by which the right of others was saved and pleaded all incertain and shewed that so much rent was behinde upon which he made Conusance as c. to which the Plantiff replied that the land is out of the fee and signiorie of the Earl of Bath c. and this was ruled to be no plea for he confessed so much in his avoury and this avoury is not for rent service for the signiorie is extinct by act of Parliament but this is for rent reserved by the saving of the act of Parliament and this is a rent seek and yet is destrainable for the priviledge which was before but he may traverse the tenure that at the time of the making of the Statute nor never after this was holden of the said Earl of Bath Priest and King Priest and King in an action of which was entered between them Trin. 21 Iac. Rot. 3595. and this was debated between the Iudges and the Prothonotaries and the case was that two were bound for the appearance of an other and judgement was given against the debtor now if upon the capias he come and offer his bodie and the Plantiff refuse that yet that discharges the sureties but the Prothonotaries said that notwithstanding this refusal he may take a Capias against him within the year because that at the first he might have had a fierie facias or an elegit quere of that but Winch thought that in this case he ought to have a fierie facias but if he had come upon the Capias and had no suerâ—tes and he refuse to take him and this is so entred now quere if he had not discharged him Hendon moved the Court for a prohibition to the spiritual Court and suggested that one had libeld in the spiritual Court for a legacie and the Executor shewed that he had not assets to discharge the debts of the Testator and that Court would not allow this allegation and upon this he prayed to have a prohibition and it was the opinion of the Court that no prohibition shall be granted for the legacie is a thing meerly which is determinable in the spiritual Court and no other Court may have Conusance of that and this is also a thing which doth consist meerly in the discretion of the Court and resolved that in a thing which meerly doth rest in discretion of the Court in this case no prohibition shall be granted Henry Good against Thomas Good IT was agreed in the case by the Court between Henry Good and Thomas Good that if the devisee of 500. l. sue in the Marches of Wales for this legacie that a prohibition is grantable for though the Court of the Common pleas had no power to hold plea of that yet because that the thing is only triable in the Ecclesiastical Court a prohibition may be granted to reduce that to its proper Court and though the instruction of the Court of the Marches be to hold plea of all such things wheresoever there is no remedie at the Common Law yet this is to be understood of matters of equitie and not to take the jurisdiction from the spiritual Court for in verity the King may not do that by his Letters pattents but yet the Court agreed that if the Executor do suffer a decree against him in the Court of the Marches and not come to them at the first to be releived it is now meerly in the descretion of the Court whether they will grant that or no for that is a means to lengthen suits and to make the more delay before he do recover his legacie If a Capias ut legatum issueth to the Sheriff to take the partie and to enquire what lands and Tenements he had and the Sheriff findes by inquisition that he is seised of many lands and continues possession in them and the Sheriff do out me I shall have an action of trespass John Marriots case SErjeant Crawley moved this case in arrest of judgement in the case of Iohn Marriot and he declared upon a contract to table with the Plantiff at Ashton in Northamptonshire ad tunc ibidem superse assumpsit to pay 4. s. by the week for his diet and Crawley moved that this ought to have bin tried in Northamptonshire for these words ad tunc et ibident refer to Northamptonshire which was next before and not to London Hutton said that it ought to refer to London otherwise it was idle and it is to be intended of the time and the place where the promise was made but it was said if the issue had been whether he was tabled or no this shall be tried there Giles Bray against Sir Paul Tracie GIles Bray brought an action of waste against Sir Paul Tracie and in his declaration he conveyed a good tearm to the Defendant and a reversion to himself and upon a general issue a special verdict was found to this effect that Sir Edmund Bray was seised of this land in his demeasne as of fee and he being so seised 16. Eliz. made this lease for divers years to I. S. and he being so seised of the reversion conveyed that to the use of himself for life without impeachment of waste and then to the use of Edward Bray his eldest son and to Dorothie his wife and to the heirs males of the said Edward upon the said Dorothie to be ingendred and then Edward died having issue in tail the Plantiff and then this lease was assigned to Tracie and then Dorothie died and then the waste was committed and then Edmund the Grandfather died and the question was whether in this case an action of waste will lie or no. The argument of Serjeant Harris HArris argued that the waste doth lie for the priviledge or despensation which was annexed to the
years then this is void by resignation and so is the case of Packhurst that when he resignes during the years of the Commendam the Patron shall have that and not the King and so also my opinion is clear that if he had died within the 6. years limitted by the Commendam that the King shall not have that for then it is void by death and not by the assumption of the Bishoprick which book proves directly that a Commendam may be aswel for years as for life but yet I do not hold that upon those temporary Commendams if the Bishop continued Parson during the years and made no Act to impeach that then is a void cause S. the assumption of the Bishoprick and then when that is determined the supension is determined and it is void by the original cause S. by the assumption of the Bishoprick and this Commendam doth not turn the second or first Patron to any prejudice for the incumbent is still in by the presentation of the Patron and the determination of the Commendam is not any cause of the avoidance of the benefice but this is quasi non causa which is causa stolida as the Logicians do term it but in this case the assumption is the cause of the Cession and it is like to the case of 25. Ed. 3. 47. where the King brought a quare Impedit against the Arch-Bishop of York for a Prebendary vide the case and ruled in that case that the confirmation of the King had not taken away his title to present and the reason was because the confirmation had not filled the Church but continued that full which was full before and here this temporarie Commendam may not restrain the King to present afterwards for this is not a presentation and therefore may not take away the title of the King and here the Plantiff hath not well expressed it for he hath not shewed in this Court that the presentation of the King was lawful neither that Chardon held that by vertue of the Commendam for all the 6. years but only that the Church became void by the Laws of England and that is not sufficient and then if all before were for the Plantiff yet the question is whether he hath lost his turn and I think that he hath omnis argumentatio est à notoribus and the first is better known then the second and the second may not be the first and there when the devise gave him the first it is idle to say that he shall have the second for that departs from the meaning of the words and in every grant the law implies quantum in se est and no man may say that the devisor did intend to warrant that from antient Titles and so the Lord Hobert concluded his argument and said his opinion was that the Plantiff shall be barred and judgement was commanded to be entred accordingly Mich. 22. Jac. C.P. Michaelmas Term in the two and twentieth year of King James in the Common Pleas. DAvenport moved for the amendment of a Record where a recovery was suffered of lands in Sutton in the Countie of York and the indenture of bargain and sale was by the right name and the indenture of uses by the right name but the writ of entrie was of the Mannor of Sulton and upon the examination of the parties to be recovery that the recovery was to no other uses then is expressed and mentioned in the said indenture this was to be amended Sheis against Sir Francis Glover SHeis brought an action upon the case against Sir Francis Glover and shewed for the ground of his action that where one Harcourt was bound to the Plantiff in a Recognizance c. upon which the Plantiff took forth an elegit and the Defendant being the Sheriff of the Countie took an inquisition upon that upon which it was extended but he refused to deliver this to the Plantiff but yet he returned that he had delivered that and upon that he brought his Action and upon not guiltie pleaded it was found for the Plantiff and now it was moved in arrest of judgement by Serjeant Hendon and the reason he shewed was because he laid his action in an improper Countie for though the return was in Middlesex where the Action was brought yet because the land lies in Oxfordshire where the seisin ought to be delivered the place is Local and for that the Action ought to be brought there and now Serjeant Breamston argued that the Action was well brought in Middlesex for this being but a personal thing he may bring that in either of the Counties as 14. Ed. 4. 13. Ed. 4. 19. expresly in the point and to the second objection that had been made that an Averment may not be against the return of the Sheriff to that Breamston answered that in an other Action an Averment may be against the return of the Sheriff though not in the same Action as 5. Ed. 4. but it was agreed to have a new trial by the preservation of the Iustices for otherwise it seemed the opinion of the Court was that the Plantiff shall have judgement upon the reasons urged by Serjeant Breamston Mary Baker against Robert Baker an Infant in Dower MAry Baker brought a writ of Dower against Robert Baker an Infant who did appear by his Gardian and he pleaded that his father who was husband of the demandant was seised of a Messuage and of land in Socage and devised that to the demandant for her joynture in full satisfaction of all Dower and he shewed that after the death of his father the demandant did enter into the said Messuage and land and was seised of that by vertue of the devise and to that the demandant did replie by protestation that he did not devise and for plea confessed the seisin of the husband and her own entrie but she further shewed that the Infant who was then Tenant was but of the age of 14. years and that she entred as Gardian in Socage to the Infant and disagreed to accept of that by vertue of the devise and traversed the entire and the agreement and it was said by the Court that his bar is good though it had been more pregnant to have alledged that she entred virtute legationis praedictae and so was seised and after it was said that the Replication was very good without the traverse for this was not expresly set down but that was but meerly the consequence of the plea which in veritie was not traversable Hickman against Sir William Fish HIckman had judgement for 600. l. and 10. l. damages against Sir William Fish and he acknowledged satisfaction for 410. l. of the said debt and damages and after there was an agreement between them that if Sir William did not pay the residue by such a day that then it should be lawful for Hickman to take out execution against the said Fish without suing of any scire facias though it was after
a legal signification it shall not be taken but in the better sense for the small pox but Warberton said that if one say of another that he is laid of the pox an action lyes for it is intended the french pox and Winch said that those actions of slander were known to law but of late times and for that 26. H. 8. it was thought that an action would not lye for calling another thief and in the principal case judgement was commanded to be entered quod Querens capiat nihil per brevem suum and note that I saw Hobert shew presidents to Winch in a paper which were delivered to him by the Plantiff and drawn by his Councel and he said to Winch that by those it seemed that in the Kings Bench they made a difference between for and and as had been said before and he marvailed much at that In a Capias Ulagatum before judgement the Sherif returned that I. S. and I. N. rescoused the party c. and Attoe moved that the retorn was not good for there ought to be additions by which they may be sued to the outlawry but Hobert and the Court hold this to be good without addition for no statute nor book will compel the Sheriff to give additions in this case And it was said that if the Sheriff in this case retorn that the party himself simul cum I. S. and I. N. made the rescouse that this is not good but in the principal case it was ruled that the return was good and the rescousers which were present were committed to the fleet Homan and Hull were rescousers Vpon the reading of the record the case was that an executor brought an action against one upon a promise made to the Testator in which the executor was nonsuite and 3. l. costs given against him and the Defendant bruught an action of debt upon that recovery against the executors and upon this it was demurred in law and Serjeant Towse said that there are two causes of the demurrer first whether the Defendant shall be charged as executor and is not named executor and secondly whether upon the nonsuite of an executor the Defendant shall have costs by the statute of the 23. H. 8. Hobert chief Iustice said to him you say well Note that it was said by Hobert chief Iustice that if a man dies intestate and he to whom the Administration appertaines is sued by others which pretend to be Administrators and sentence is given against the right Administrator and costs given against him the costs shall not be of the proper goods of the Administrator but of the goods of the intestate as the costs which are spent in the spiritual Court for the provate of a Testament shall be only of the goods of the Testator Hutton if the Legatee sue in the spiritual Court for a Legacy and recovers the costs which he shall recover shall not be of his own goods but of the goods of the Testator and no prohibition shall be granted for any such sentence given in the spiritual Court Hobert to the contrary for if by such means the goods of the Testator are so wasted that the debts and legacies of the Testator may not be discharged a prohibition shall be granted and in every case where the sentence in the spiritual Court crosseth the common law a prohibition lyes and he said that in the case of one Barrow in this Court it was his opinion and the opinion of the rest of the judges that if Administration be committed by force of 21. H. 8. and the Administrator pay all the debts and Legacies that in this case the ordinary had not power to dispose of the rest of the goods to the children of the intestate but they shall remain to the Administrator and that by the very intention of the Statute of 21. H. 8. but Hendon said that he could shew a president of that and the Court desired that they might see that if any such president were LLewellings case VPon the reading of a Record in the case of LLewelling the condition of the obligation was that the obligor should surrender his Copihold land to the use of the obligee and he pleaded that he had surrendered that and upon that plea the Plantiff demurred and it was adjudged upon the opening of the case by Warberton and Hutton being only present in the Court that judgement shall be given for the Plantiff for the plea in barre is not good because the Defendant had not shewed when the Court of the Lord was holden Duncombe against the Vniversity of Oxford In a Qu. Impedit in which Duncombe and others were Plantiffs who were grantees of the King against the University of Oxford and the case was Hill 18. Jac. that Sir Richard weston was seised of an advowson in grosse inter alia and was convict of recusancy and a Commission issued to seise two parts of his land and goods and they seised this advowson inter alia and the King granted the advowson to the Plantiffs and the Church became void and they presented and were disturbed by the University of Oxford and their Clark upon which they brought a Qu. Impedit upon which a demurrer was joyned and Serjeant Iones argued for the Plantiff and there was two points in the case first whether an advowson in grosse is given to the King by the Statute of the 28. of Eliz. and the Statute is that the King shall seise the lands tenements hereditaments of such a recusant convict and whether by the same statute an advowson in grosse shall be seised and he held that it shall for though perchance the word lands and Tenements will not carry that being an advowson in grosse yet this word hereditament will carry it to the King by force of the Satute for it appears by dyer 350. that if the King grant an advowson by the name of an hereditament that in this case this will pass the advowson and for that Coke 10. Whistlers case the King by the grant an of hereditament grants an advowson by such words to a common person then by the same reason a common person may grant that to the King by the same words but it may be objected that because an advowson in grosse is not valuable therefore it is not given to the King and upon this doubt upon the Statute of Wills â— H. 8. the question was whether an advowson was devisable by the name de bonis et Cattallis fellon Butler and Bakers case that they are not devisable for it is not valuable but the 4th Iac. between Taverner and Gooch which case may be seen in the new book of entries that an advowson was devisable before the Statute 5. H. 7. 37. it shall be assets 9. H. 6. 55. recovery in value lyes of that but admit that this is only a thing of pleasure for the advancement of a friend yet that shall be given by the Statute to the King But the second
owner had not any remedy and so here he doubted that when the Sheriff made execution whether he shall have any remedy or no and therefore it is good conscience to allow him to take a bond for that before he make execution for otherwise a great inconvenience may insue for perchance after the extent and before the liberate the parties may agree and then the Sheriff shall not have any thing for all his paines which he had taken in the extent which never was the intent of the Statute but it may be objected that in this case the Sheriff may have an action upon the case against the debtee or the conusee if he make such composition I answer yet this is a great hinderance and trouble to the Sheriff to prosecute the suite and it shall be very inconvenient to allow that the Sheriff shall be allowed no other remedy and then for the third point he argued that the Sheriff shall have 12. d. in the pound for the first 100. l. where the bond exceed 100. l. and 6. d. for that which exceeds for otherwise as the case is he shall have nothing at all for the first hundred pounds for the words of the Statute are if the same be above 100. l. then he shall have 6. d. so that 6. d. only shall be taken for that which is above 100. l. and nothing for the first hundred if this construction shall be made and he also remembred the objection made by Hendon and so concluded that judgement ought to be given for the Plantiff Hobert said cleerly the Sheriff may take a single bill for his fees and that is the ordinary course also he read the Statute of the 29. Eliz. that it shall be lawful to the Sheriff c. and said the words of the Statute made a contract in law for which an action of debt lyes for the Sheriff and he â—â—id to Serjeant Bawtry that the second point will be found to be against him and for the third point that the Sheriff shall have but 6. d. for all in the case the summe exceed 100. l. and so they thought judgement ought to be given for the Defendant and Iustice Winch said that the reason wherefore the summe of 12. d. in the pound is given if that not exceed 100. l. is because that it is as much labour to the Sheriff to execute 100. l. as it is for 500. l. Maps and Maps against Sir Isaac Sidley MApps and Mapps brought an action upon the case against Sir Isaac Sidley upon a promise and shewed that one named Holdish was indebted to the Testator of the Plantiffs in 12. d. upon a bond which became due and that the Defendant in consideration that the Plantiffs will forbear to prosecute a suit upon the same obligation he promised to pay that and the Plantiffs shewed that they had forborn him till such a day c. and upon non assumpsit pleaded it was found for the Plantiff and now it was moved in arrest of judgement by Hitcham Serjeant of the King that this declaration is not good for this forbearance ought to be for ever and not a temporary forbearance only for the Defendant by his promise had made the debt his own as if the assumpsit promise had been to forbear to come to my house this ought to be a perpetual forbearance and here the assumpsion of the Defendant amounts to a release in law to the principal and yet he agreed if this had been generally that he had forborn and had not shewed he had forborn ill such a day the declaration had been good Hobert if the promise had been to forbear till such a day there he may sue the dettee if he do not pay it the day and it was adjourned Mich. 19. Jac. Mabies case MAbies case Hobert in Parson Mabies case if I let my rectory excepting my glebe the exception is void for no rectory may be without glebe and the same law of a mannor excepting the demeasnes but he may except parcel of the glebe and good but in pleading the lease of a rectory this shall be taken for the whole rectory and not for parcel Gratwick against Gratwick GRatwick brought a formedon in remainder against Gratwick and the Tenant pleaded that the day of the purchase of the writ and yet he the Plantiff is seised of the moity of the land in demand and it was argued by Serjeant Harvey that this is no good plea for he ought to shew of what estate he was seised and he may be seised by vertue of a Statute and he vouched the 39. E. 3. 7. Hobert if he had said that he was seised in his demeasne as of fee or as of freehold this had been good and a seisin by force of a Statute is no seisin at all and Hutton said if Tenant plead entry in part pending the wriâ— he ought to say that he entered and expulsed the other for otherwise it is not good and I conceive that the Court inclined that in the principal case that the plea for the cause aforesaid being of a general seisin was not a good plea. Sir Edward Grubham against Sir Edward Cooke AT another day the case of Sir Edward Grubham and of Sir Edward Cooke was moved againe and it was objected by Ashley that the declaration in the audita querela is not good because he had not shewed the day of the Testee and of the return of the writ execution in certainty but only by process such a day out of the Chancery which is not good but he ought to plead all the record of the extent in special and he offered to shew a president of that and secondly he had not shewed the execution of the liberate by which the land was delivered and so there is no express allegation of a grievance Richardson the presidents in the old book of entries are according to our declaration and Hutton vouched the 9. H. 6. and 39. H. 6 and in an action of debt upon a judgement he needs not recite all the record but he may begin at the judgement and as to the second point they all agreed that the party may have an audita querela before an ouster and yet here the showing that it was delivered to the conuser by the liberate is a sufficient averment of the ouster for it may not be delivered without an ouster and ruled that the Plantiff shall have judgement if the Defendant do not shew other cause by such a day Vpon a Capias Vtlagatum the sheriff returned that the party which was arrested had a protection from Lord Stafford who was a Lord of the Parliamen and it was moved by Serjeant Hitcham that the return was not good for the protection of a Lord of the Parliament is not good in a Capias Utlagatum which concerned the King and by Winch Iustice only present in Court the return is cleerly naught and day was given over to the Sheriff to amend his
return and this was granted by Hobert chief Iustice at another day this Term Peter Vanheath against Turner PEter Vanheath brought an action against Turner and declared upon the custome of Merchants that if any Merchant over the sea deliver money to a factor and make a bill of exchange under his seal and this is subcribed by the Mr. or by any of the company of such Merchants that the Merchant himself or all the company or any one in particular may be charged to pay that and he shewed that one Morgan was factor of the company of which the Defendant was one and that the said Morgan did substitute one Greenway to whom the Plantiff delivered 100. l. upon a bill of exchange to which bill one Bounder being one of the company set to his hand in England and so the action accrewed to the Plantiff The Defendant pleaded nihil debet per legem and upon that the Plantiff demurred in law and the question was whether the Defendant may wage his law and it was argued by Serjeant Harvey that he shall not wage his law for this is only an action upon the case and sounds only in nonfesance and here is no privity between the Plantiff and Defendant for the bill was made over the sea and subcribed here in England and he shall not charge the Defendant without a special custome so that it is plaine that it is custome which made the Defendant lyable and if the Defendant do not pay for this no action of debt lyes but only an action upon the case and every plea ought to conclude to the point in action and for that in trover and conversion non culp is a good plea and yet he may traverse the finding for this tends to the issue and is good and so in debt upon a lease for years nihil debet is a good plea or non dimisit for the cause aforesaid but when the plea doth not tend to the point in issue it is otherwise for he ought to traverse that which tends to the point in issue and in our case the Defendant may traverse the custome or give answer to the nonfesance but he shall not wage his law and an action lyes upon this contract against the Mr. for this and so he concluded that judgement ought to be given for the Plantiff Harris Serjeant contrary this non payment is not a non fesance in the Defendant and here the Defendant may not plead not guilty or non assumpsit for no promise was made and it is a general rule in law that where a man may traverse the conveyance there he shall not wage his law see 5. H. 7. but here the Defendant may not traverse the conveyance Ergo he may wage his law and 5. H. 7. the successor of an Abbot shall have his law of a contract made with his predecessor and he said that the book of the 23. E. 3. is not law Hobert chief Iustice if the Bayliff at the common law make a substitute the substitute is not chargeable but here the custome will bind the law Secondly he laid 2. or 3. Merchants trade over the sea who made a factor there who takes money there and gives a bill and this is subscribed by one of the company that this should bind all or any of the company is not a good custome and the custome of Merchants is part of the common law of this Kingdome of which the judges ought to take notice and if any doubt arise to them about there custome they may send for the Merchants to know there custome as they may send for the Civillians to know there law and he thought that the Defendant ought to be admitted to wage his law for the delivery of the money made a contract in law and as he may have an action of debt so without question he may have an action upon the case and so count upon a promise and then the Defendant may not wage his law Mich. 19. Jac. C. P. Doctor Hunt against Allen. DOctor Hunt brought an action of debt upon an obligation of 100. l. against the heire of Edmond Allen and the condition of the obligation was that whereas the testator Edmond Allen in the first year of the raigne of the King hath given and granted to the Plantiff the presentation to the Church of D. if therefore the said Edmond Alllen from time to time shall make good the said grant from all incumberances made or to be made by him and his heirs that then c. and the grantor dyed and the Church became void and the heire of the grantor presented and whether this was a breach of the Condition was the question and Hobert chief Iustice and Winch being only present thought this tortious presentation to be no breach of the condition but this extends only to lawful disturbance by the heire and by the pleading here it appears that though the heire presented yet he had no right to present because that his father had granted that before and then the presentation of the heire is as a meer stranger And those general words will not extend to a tortious disturbance by the heire but Hobert said that the words shall have such a construction as if it had been said that he shall enjoy the same from any act or acts made by him or his heires and in this case there ought to be a lawful eviction to make a breach of the condition but otherwise if the condition had been that he shall peaceably enjoy from any act or acts made by him or his heires in that case a tortious disturbance would have been a breach of the condition but it was adjorned till another time Information was for that one such his apprentice departed out of his service and the Defendant received and retained him without a testimonial from the Mr. contra formam Statuti And so he demanded 5. l. the Defendant pleaded nihil debet per patriam and it was found against him and now Hendon Serjeant moved in arrest of judgement that an apprentice is out of the clause of the Statute of the 5th of Elizabeth and that the same Statute extends only to servants and to labourers retained within that Statute for the statute saith be it enacted that no person or persons that depart out of service without shewing of a testimonial as is above remembered and this branch as is above remembered had only reference to the next clause before and the same branch before makes only mention of certaine trades in which an apprentice as in our case is not included and the certificate set down within the Statute proves that an apprentice is not within the Statute for the words are I. W. servant to such a one c. and so it extends to servants and not to apprentices and secondly he said the information is not good because he had not shewed in what trade this apprentice served and perchance he was retained in such a trade as is not
within the Statute and â—hirdly he had not shewed what time he was received that so it might appeare that he was an apprentice but for half a year and such a retainer is not within the Statute fourthly the conclusion of the information is contrary to the form of the Statute yet this doth not aide the imperfection of the information for such information only extends to matter of circumstance and not to matter of substance Finch Serjeant contrary that the retainer of an apprentice who departs out of the service of his Mr. without a testimonial is within the Statute of the 5th of Eliz. for the same branch is general there being no person who departs c. and an apprentice is a person which departs secondly the clause of the Statute is be it enacted that none of the forementioned retained persons c. and an apprentice is a person which is in a special manner named before Mich. 19. Jac. and therefore he is within the express words of the same branch Thirdly the form of the testimonial proves that for it is I. W. servant to such c. and an apprentice is such a servant Hobert chief Iustice said that it was never the intent of the Statute to make an infant who is an apprentice to be within the danger of the same Statute for an infant at the age of 14. years may be bound to be an apprentice and the punishment which is given by the same Statute is that such person shall be whipt as a Rogue which plainly proves the Statute intends only those who are of full age and if other construction shall be made perchance that the sonne of a gentleman may be punished as a Rogue by such departure and he held that if an apprentice depart with his Mrs. goods delivered to him that in this case he is not within the Statute of the 21. H 8. as another servant is and Serjeant Finch said that there is an express exception and if that had not been that an apprentice had been within the danger of the law but Hobert said that he doubted much whether an apprentice had been within that Statute though the Proviso had not been made but this proves that the makers of the Statute thought this to be a hard matter to make an infant who is apprentice to be within the danger of the same law and for that reason the proviso of the Statute was made Winch said to which Hutton agreed that when the Defendant had pleaded nihil debet and this was found for the Plantâ—ff yet he may move in arrest of judgement if the matter be not within the Statute adjurned In a replevin the Defendant said that he hâ—d property in the beasts absque hoc that the property was to the Plantiff and so prayed judgement of the writ and it was found for the Plantiff and now Harvey Serjeant moved in arrest of judgment for in no book is found such a traverse as this that the Plantiff had not property but only that the property was to the Defendant and secondly the conclusion of the plea is not good for he ought to conclude to the writ and not to the action Hobert 6. H. 7. is that an action of detinue affirmes the property at the time of the action but a repleviant the time of the taking and two men may have such property in the same thing that every of them may have a replevin and Hutton said that when the Defendant in the replevin claimed property he ought to conclude to the action and Hendon Serjeant being only at the barre and not of councell in the case said that the book of entries is that he shall traverse the property of the Plantiff as in the principal case Hutton Iustice said that this was never seen by him but they all agreed that this being after verdict judgement shall be given for the Plantiff Trehern against Claybrook Ent. Tr. 18. Jac. Rot. 650. TRehern against Claybrook in a debt upon a lease for yeares the jury gave a special verdict to this effect that Iohn Trehern Grandfather of the Plantiff was seised of land in fee and let this for forty yeers rendring rent for which the action is brought and that he devised the reversion to the Plantiff in catle the remainder to Leonard Trehern in taile with divers remainders over and with provises in the same will that for the raising of a stock for the Plantiff and for him in remainder his will was that one Griffith and Anne his wife being daughter of the devisor should have the profits and rent of the said land to their own use until the time that the Plantiff and the said Leonard Trehern accomplish the age of 21. years provided alwayes and upon this condition that the said Griffith and his wife within 3 moneths of his decease enter into bond to the overseers of his will in such a summe and in such a penalty as shall be thought fit by the said overseers and this bond to be made by their advice and if the said Griffith and Anne his wife do refuse to be bound as is aforesaid then the overseers shall have the rents and the profits c. and the jury found over that he made two executors and 3. who were overseers and that the 3. October 16. Iac. died and that within 3. weeks after the death of the devisor the executor read the will to the overseers but they found that the overseers did not remember that and if upon all the matter Griffith and Anne his wife had not performed the condition was the question and that if not the reversion was in the Plantiff And the point in law upon the verdict was whether Griffith and Anne his wife ought of their perils to tender the bond within 3. moneths or whether the overseers ought to make the first act and to tender the bond and the penalty for them to seal and Towse Serjeant argued that Anne and Griffith her husband ought to tender the bond at their peril for he said that the condition did precede the estate and therefore if they will have the benefit of the devise then he ought to tender the obligation and vouched Corbets case and 18. Eliz. the devise of land upon condition to pay money he ought to pay that at his perill Attoe Serjeant contrary and yet he agreed that if the condition was to precede the estate then the law was as Towse had said but here he said the estate precedes the condition for all the profits are devised to Griffith and to Anne his wife during the minority of the Plantiff by which it is apparent the estate is presently in the devisees and by consequence the estate precedes the condition and then the sole doubt will be whether Griffith and Anne his wife ought to procure the overseers to make the obligation and to limit the condition or whether the overseers ought to make this first they being the parties instrusted by the Will
see more after Vpon an elegit the Sheriff returned that to be executed and the extent of the Church of St. Andrews Al 's St. Edes and Attoe prayed the Sheriff may amend this and make that Andrews only for that is the true name Hobert and the Court if this be the true name the alias dictus is surplusage and will not hurt the return of the writ Hill 19. Jac. C. P. Allen against Brach Ent. Hill 19. Jac. ALlen against Brach upon the reading of a record in a replevin the case was Tennat of a Coppihold for life in which the custome was that the wife shall have her widowes estate and the husband was attaint of fellony and executed and whether the wife in this case shall have the widowes estate was the question upon the demurrer Winch being only present seemed that not without a special custome In an action upon the case the Plantiff shewed that he was possessed of a Wind mill sufficiently repaired and that he at the instance and request of the Defendant let that to I. S. and in consideration thereof the Defendant promised to pay the rent and that the Mill should be left in sufficient repair except the Sayles and he averred that he had let that to I. S. accordingly and that he had not paid the rent nor left that sufficiently repaired and Serjeant Hendon said that the declaration is not good first because that the Plantiff had shewed that he was possessed of a Winde Mill and had not shewed of what estate and it may be this was only at will and then the lease is void Hutton Iustice it is good notwithstanding this exception for the shewing that he was possessed was surplusage and if he had shewed that he let for years and never shewed that he was possessed yet this is good and if the lessee never enter yet the assumpsit lyâ—â— secondly Hendon moved that the promise was to pay the rent and to leave the Mill sufficienty repaired except the sailes and the Plantiff averred that he had not repaired and never made mention of excepting the Sailes and here the jury found the Defendant guilty of all and had given entire damages and it appears by the Plantiffs own shewing that he shall no have any action at all for the sails for they are excepted and therefore though the promise is good for the rent yet it is not for the not reparation and the damages are intire Winch and Hutton Iustices only present held this good after verdict and judgement was given according Wright against Black and Black VVRight against Black and Black in an action upon the case and the Plantiff declared that he was of good fame and that the Defendants such a day and yeare at the Sessions of Norwich preferred a Bill of indictment containing that the Plantiff felloniously stole two bundles of vetches and also they maliciously incited one I. S. to give in evidence to the grand Iury that this was Billa vera and upon not guilty pleaded it was found for the Plantiff and now it was moved in arrest of judgement by Serjeant Richardson first because the Plantiff had not averred in his declaration that the Bill was found but only that he preferred a Bill of indictment against him containing such a thing and this is not good as 21. E. 4. 41. one pleaded a pattent of exemption and this was pleaded quod inter alia continetur and ruled no expresse grant was pleaded and so evil and so Browning and Beestons case Com. 173. there a condition was pleaded that in such an indenture it was contained that if such a thing was not made then the lease shall be void and evill because he had not expresly averred what the condition was and so in our case to say the Defendants preferred a Bill of indictment containing that the Plantiff stole 2. bundles of Vetches this is only in nature of a recital and no direct affirmation that there was such an indictment and this declaration doth not agree with the precedents and therefore it is evil secondly admit this to be good yet as this case is the Plantiff may not have an action upon the case but an action of conspiracy against both Thirdly the declaration is not good because it sets forth that the Defendants incited I. S. to give in evidence to the grand jury that this was Billa vera and had not averred that he was sworn and then though an action may lye for the other yet because the action is brought for all and damages are entire all shall be void and the Plantiff shall not have judgement for any and lastly he said the action it self in this case will not lye because the indictment was not found but only an evidence and an acquital before the grand jury and this is lawfull being in an ordinary course of justice and prayed that the Plantiff may have judgement in the case Attoe contrary First the Plantiff here may not have a writ of conspiracy for the indictment was not found but yet if we should admit that he may have a writ of conspiracy yet he may as this case is have an action upon the case at his election which was granted by Justice Winch as to this point and yet he said that this action upon the case is in the nature of a writ of conspiracy and for that reason there ought to be some act made or else an action of conspiracy will not lye upon a bare attempt Attoe an action upon the case will lye upon this attempt for by this the Plantiff is defamed as much as if the Defendants had said that he had stole 2. bundles of Vetches and this is more then a defamation by word and though the indictment was not found yet an action upon the case lyes as 10. Jaco B. R. Whorwoods case against S. and R. declared that the Defendant preferred a Bill of indictment containing such a thing without any eo quod c. and the Bill not found and yet an action upon the case lyes very well upon this attempt without an express averment of an eo quod because that the indictment was not found but otherwise it is where the indictment is found there it is not good containing such a thing as my brother Richardson had said without an eo quod and the same case of Whorwood was adjudged accordingly and it was also affirmed in the exchequer chamber upon a writ of error brought there and he also cited a case 14. Iac. in B. R. Rot. 236. Demey against Ridg where was a Bill of indictment for the stealing of a horse and the Bill was not found and yet adjudged that an action upon the case will lye for that Richardson said that the indictment is not found here and therefore it was no slander and so was adjudged in a case in the 44. of Eliz. in the Kings Bench which was one Jeroms case Justice Hutton said that it seemed to him that the action
of the obligation and so had disabled himself afterwards and the obligor is bound that a fine shall be leavied this is to be understood of a good and a lawfull fine and not a fine in name only and he put the case that I let for years and after Covenant to make a feofment to I. S. this lease for years is a breach of the Condition though at the time of the Covenant made the lease for years was made Iustice Winch thought the contrary for this disability is by the act of a stranger and for that the obligor may not take any certain notice of that and therefore if I am obliged to you that I. S. shall enfeoffe you of his Mannor and at the time I. S. had made a feoffement of two or three acres of the same Mannor yet if he enfeoffe you of that which he was seised at the time of the obligation this is a good performance of the Condition though that 2. or 3. acres were disjoyned from that before and so in this case the obligor being a stranger to the estate of I. S. if I. S. make such an estate as he had at the time of the obligation made this is sufficient upon which he concluded that the Plantiff shall not have judgement but afterward judgement was commanded to be entered for the Plantiff according to the opinion of Hobert and Hutton Hoels case HOels case upon a special verdict was to this effect a man was seised of 2. acres of land in fee and had 2. sones and he devised both the acres to his wife for life the remainder of one acre to his eldest son in fee the remainder of the other acre to his youngest son in fee upon this condition in manner and form following if either of my sonnes die before my depts and legacies are paid or before either of my sonnes enter into their part that then the longest liver shall have both parts to him and to his heires in fee and the devisor died and Hoel the Plantiff being the eldest sonne in the life of his mother released all his interest and his demand in this to his younger brother and the doubt was whether this condition was gone by this release and Attoe argued that it was gone for Littleton saith that every land may be charged one way or other see Anne Mayowes case Release Coo. 1. Albaines case power of revocation released see more of this afterwards Trin. 20. Jac. C. P. Whitgift aganist Sir Francis Barrington IN Replevin the Defendant avowed as Baliff to Sir Francis Barrington and that Whitgift the Plantiff held certaine land of Sir Francis Barrington by escuage et quendam reditum and that the said Sir Francis was seised by the hands of Whitgift his very Tenant and for homage he avowed and upon this the Plaintiff demurred first because he had avowed for homage and had not shewed how nor in what manner the homage is due whether in respect that the tenancy come to him by discent or by purchase and for that this general allegation is naught for by Hendon Serjeant all the presidents in such avowryes made mention of the title to the homage as 4. E. 4. in avowry for homage the tenure is shewed and a discent alleadged or a purchase of the land and in no book or in any president that he ever yet saw did he see such a general allegation in avowry for homage but he agreeth the book of the 44. E. 3. 42. if the avowry is upon tenant by the curtesie this general allegation is good but otherwise of a tenant in fee simple and for that he alledged the second E. 3. avowry in a replevin the Bishop avowed for homage due by the Plantiff and exception was taken because it was not shewed in whose time the death of the ancestor was whether in his own time or the time of his predecessor and ruled to be evill for his avowry being his title he ought to shew that in certaine and so in our case Hobert this case doth not prove our case for in our case prima facie it is certain to all intents and purposes and I cannot see how an avowry may be better made and Finch at the barre vouched a president in the book of entries title horse de son fee secondly where such a avowry as in our case is made and then Hendon moved that the avowrie is not good for he had shewed the tenure by homage and by escuage and rent de quo quidem redditu he was seised c. and this is also repugnant for when he said that he was seised of the rent by the hands of the Plaintiff this is a seisin of the homage as Bevils case is and then by his own shewing because the seisin of the rent is a seisin of the homage he shall not have the homage of the Plantiff Thirdly admitting this point against him and that the seisin of the rent is not seisin of the homage yet the pleading is not good for when he expresly alleadged seisin of the rent in this manner de quo quidem redditu he was seised this excluded the seisin of any other services but only of the rent which is expresly alleadged and therefore in our case he ought to have alleadged generally de quibus serviciis he was seised and to leave this to the construction of the Law and he vouched 13. H. 7. 31. Serjeant Harvy to the same intent for though perchance no good reason may be given wherefore the pleading shall be such and that the seisin of the homage ought to be expressed yet because all the presidents are so the course of pleading shall not be altered and all the presidents shew a seisin of the homage see the book of entries 597. and 598. Serjeant â—owse to the contrary the book of the 19. E. 2. Recovery 224. is that the alleadging of the seisin or escuage as in our case of tent is a sufficient avowry for homage and 29. H. 3. such an allegation of the seisin of rent was made in avowry for fealty and good Hutton if the book of the 19. E. 12. be as Towse had alleadged it is all one with our case Hobert seems the avoury is good notwithstanding this last exception for perchance he was not actually seised of the homage by the hands of the Tenant himself and then by his own shewing his avowry shall abate and he demanded of Brownlow if there were any such president of an avowry who answered no. Hobert if the continual pleading be as my brother Harvy had alleadged we will not alter the course of pleading but in my opinion in reason none may plead in better manner or form and Hutton being only present agreed and then Hobert commanded the presidents to be searched concerning that matter and Finch at the barre being of Councel with the avowant said that till the resolution in Bevils case it was a great question whether the seisin of the rent was the
seisin of the homage and therefore perchance it will be hard to finde my antient president they adjourned and at another day Hutton and Winch being only present judgement was given for the avowant against Whitgift and Hutton said that he had spoke with the other Iustices and they agreed Vpon a motion made by Towse the case was this a man made a lease for one year and so from year to year during the Will of the lessor and lessee rendring rent and the lessee died and the rent was behinde and by Winch being only present if the rent is behinde in the time of the lessee and he dies an action of debt is maintainable against his Executor in the detinâ—t only and so I conceive if that was behinde after his death he may have an action in the debt and the detinet or in the detinet only to which Brownlow agreed Secondly Winch said that when a man made a lease for a year and so from year to year at the pleasure of the parties that this is a lease for 3. years and not for two Thirdly he doubted if the lessee hold over his term so that he is tenant at sufferance what remedy the lessor had for his rent Vpon the reading of a record the case was that a Scire facias issued against the land Tenant to have execution of a judgement given against Ferdinando Earl of Darby in the 15. Eliz. and the Defendant pleaded that a long time before the said Ferdinando any thing had in the land one Edward Earl of Darby was seised of the land and being so seised 3. Mar. infeoffed I. S. to the use of the Lord Strange and his wife in tail the remainder over to the said Ferdinando and made the said Ferdinando heire to the estate taâ—le and pretended that by this meanes the land should not be liable to this judgement because it was intailed to Ferdinando and of such estate he died seised the Plantiff traversed the feofment made by Edw. Earl of Darby and the jury found that the feofment was made by Edward Earl of Darby to the same persons as the Defendant had pleaded but this was to the use of the feoffor for life the remainder over to the Lord Strange and his wife the remainder as before and whether this shall be intended the same Feofment which the Defendant had pleaded was the question because the estate for life was omitted and upon the special verdict that was the question and Attoe said that if the jury had found this feofment made to other feoffees though the estate had agreed this should be found against the Defendant and Winch Iustice said that there was such estate found as had taken away the execution or extent and the estate for life is not material but it was adjourned till another day A man Covenanted to make such assurance as shall be devised by the counsel of the Plantiff so the same assurance be made within the county of Norff. or the Citty of Norwich and the Plantiff assigned the breach and shewed that in this case his Councel devised that a fine should be leavied of the same land which was not done and it was moved by Serjeant Attoe that in this case the breach was not well laid because he had not shewed where his councel devised that the fine should be leavied In the case of a prohibition in case of a libel in the Ecclesiastical Court for the tithes of Cattles the Plantiff alleadged that those Cattle of which Tithes were demanded are for his Dairy and for the plough and Winch being only present said that the parson shall not have Tithes of such Cattle but if he bred up Cattle to sell it is otherwise secondly the Plantiff in the prohibition alleadged that time beyond memory the parishoners had paid a half peny for the Tithe of a Calf and a penny for a Cow and that upon a day limitted they use to bring this to the Church and to pay this to the Vicar and now the Vicar had libelled in the spiritual Court against them to compel them to bring it home to his house and Winch said that this is no occasion of a prohibition for they agree in the modus but vary in the place of payment and this is not matter of substance and for that reason no prohibition will lie Vpon the reading of a record the case was that the father made a feofment to the use of himself for life the remainder to his son and his wife and to the heires of the body of the son and this was for a joynture for his wife and the father died and the son also died and whether this was a good joynture was the question for all this matter was pleaded in barre of dower brought by the wife and it was ruled to be no good joynture for the feme notwithstanding that the father died in the life of his son and Hutton said if a man made a feofment to the use of himself for life the remainder to his Executors for years the remainder to his wife for a joynture this will be no good joynture within the Statute of joyntures though the feme here had the immediate franktenement In an action of debt against an Administrator who pleads outlawry in the Testator and it was moved that this was no plea for he had taken the Administration upon him Winch a man who is outlawed may not make an executor for if he meet with his goods he shall answer for them to the King and for that reason it seems to be a good plea 3. H. 6. 32. and Brownlow chief Prothonotary said that he could shew a president 27. Eliz. where this is adjudged to be no plea and Iustice Winch said to him shew that president if any such be and upon Tuesday after he shewed that and then Winch agreed Auditor Curle for words AUditor Curle brought an action upon the case and in his declaration he set forth the Statute of 32. H. 8. for the erection of the Court of Wards and that the same Statute appointed the Auditor of the same Court and shewed that the Plantiff was an Auditor of the same Court and that the Defendant such a day and at such a place said of him you have taken money for ingrossing of feodaries innuendo accompts and tunc et ibidem you are a Cozner and live by Cozning and I will prove that to be Coznage and upon not guilty pleaded it was found for the Plantiff and now it was moved in arrest of judgement by Finch Serjeant of the King that the Plantiff shall not have judgement upon this verdict for the first words are not actionable for the taking of money for the ingrossing of feodaries are insensible and then the inuendo will not help nor aid that also the words in the second place are not actionable because he had not said that he was a Cozning officer and so he had not expresly applied that to his office and
the words are found generally but yet admitting that the last words are actionable yet the Plantiff shall not have judgement for the damages are intirely given and for that reason void see more and Bedles case cited in Osborns case Cook 10. Harris Serjeant to the contrary for an Auditor is an officer of trust and he took an oath when he entered into his office and his receiving fees which are not due are also extortion and the words of Cousâ—â—age shall have also relation to the office as in Barkleys case you are a corrupt man an action lyes and Haywel and Stakleys case of a Iustice of the peace and Sir Miles Fleetwoods case he being receiver of the Court of wards one called him Mr. deceiver and ruled action lies and tunc et ibidem shall have relation to the same time in which the said words were spoken and so he prayed judgement for the Plantiff and it was adjourned till another time See after Good against Bawtry GOod brought an Ejectione firme against Bawtry for ejecting him of certain lands in Creeting St. Maries in Creeting St. Olaves and in Creeting omnium sanctorum and a Venire facias issued to try the issue to Summon 12. men de vicineto de Creeting St. Mary Creeting St. Olaves and Creeting omnium omitting Sanctorum and it was now moved in arrest of judgement by Attoe Serjeant that the Venire facias was not good for it ought to be of all the Creetings and the Court blamed the Clark very much for his negligence but it was adjourned till another time A man lett an advowson for 40. years and the lessee covenanted that he would not alien without the assent of the lessor and he shewed all the matter because he had aliened to I. S. without his assent and the Defendant pleaded that he had not aliened without his assent and upon that they were at issue and it was found for the Plantiff and now it was moved in arrest of judgement because he had not laid that the alienation was by deed for an advowson may not pass without deed and Hobert said if a man will declare in an ejectione firme of a lease made by the husband and the wife without deed this is not the lease of the wife without deed or yet if the Defendant will plead not guilty or non dimisit and this is found for the Plantiff the Plantiff shall have judgement for this shall be intended to be by deed which was granted by Winch Iustice being only present that the breach was well laid and he alleadged a president 43. Eliz. a man avowed and had not shewed that this was by deed and the Defendant pleaded non concessit and found for the avowant and he had judgement but Hobert denyed this case but afterwards in the principal case it was adjudged that the breach was well laid and the Plantiff had judgement In a formedon in reverter the Tenant was essoyned and the vouchee also appeared the case was essoyned and he had day over till octabis Michaelis And then the Attorney of the Defendant would have been essoyned and it was argued by Hendon Serjeant that he shall not be essoyned and yet he agreed if the vouchee had not appeared the Tenant might have been essoyned againe 13. E. 3 essoyne the 8. and the same Law of the vouchee be returned tarde but if the vouchee appeare and is essoyned there the Tenant shall not be essoyned againe and so is the express â—ook of the 3. H. 7. 17. 9. E. 3. 39. and the reason is because by the appearance of the vouchee the Tenant is out of the Court c. and it was adjourned till another day and at that day it was resolved by the Court that the Attorney shall be essoâ—ned and this was upon the view of a like judgement in the case of the Earl of Clanrickard and Hobert said that in that case the Roll of the 3. H. 7. was searched for and could not be found and Towse urged 22. H. 6. and 13. E. 3. essoyne 8. Sir Henry L. Warden of the Fleet. RIchardson Serjeant moued for the warden of the Fleet Sir Henry L. and his motion was that whereas one I. S. was in execution in the Custody of the Warden of the Fleet for 300. l. and he made an escape and he at whose suite he was in execution brought an action upon this escape against the Warden of the Fleet and he shewed that the Warden upon fresh suit had taken him again and he prayed that the Plantiff may not proceed in his action for though the Warden of the Fleet may plead this though the action was brought before the retaking of the party yet he prayed for the saving of charges that the action may be stayed and he said that there was such a case in this Court against Harris deputy Warden to Sir Henry L. upon such an escape and he pleaded to the issue and after he retook the prisoner and in this case the Court had also relieved Harris if the issue had not been joyned but Hobert let the Plantiff be brought here present in Court and then we will speak to that point Gell against White Gell against White and others and he declared in action of Trespass but the writ was general but the declaration was quare vi et armis bona et catalla sua ceperunt et asportaverunt viz. tertiam partem unius dishei plumbei Anglice the third part of a dish of lead Ore and it was moved that the Plantiff shall not have judgement for the variance between the writ and the declaration and though it is objected that here is nor any original writ at all for in verity there was not any yet the declaration is contrary to it self for if in a replevin the Plantiffs writ is de bonis et Catallis and his declaration is of a taking of a horse this is not good and so here bona viz. tertiam partem c. for this particular thing may not be said to be goods and Chattels and Harris Serjeant moved that the Attorney might be banished the Court for declaring without a writ according to the express book 20. H. 6. Hobert good reason adjourned till another time Anne Buckley against Simonds Mich. 18. Jac. Rot. 2120. ENtered Mich. 18. Jac. Rot. 2120. Anne Buckley was Plantiff in a Quare Imp. against Simonds and the case in effect was that Andrew Buckley Grandfather of the husband of the Plantiff did Covenant by indenture with Preston that before such a day his Son should marry the daughter of Preston And Covenanted to convey 6. l. 13. s. per Annum of rent issuing out of land to hold to them during the life of the Covenanted and his wife and after this he Covenanted for him his hetres and assignes that after the death of the Covenantor and his wife the land to which the advowson in question is appendant shall remain come and be unto the said
after his death it shall remain to his son and his wife in fee and the book is that this Covenant will raise an use also if this Covenant and agreement will not amount to raise an use then it is not to any use or purpose at all and by consequence the consideration of the marriage is void also and an action of Covenant will very well lye without any such consideration of marriage and so he concluded and prayed judgement for the Defendant adjourned Mich. 20. Jac. C. P. Johnson against Norway IOhnson brought an action of Trespass against Norway of Trespass made in a piece of ground and the Defendant pleaded that 14. H. 7. Roger Le Strange and Anne his wife were seised of the Mannor of D. and one Giles Sherington Abbot of C. was seised of an acre of land in fee and held this of the said Roger Le-Strange as of the Mannor of D. aforesaid and that the 22. H. 7. the Abbot and all the Monks died by which the said land escheated to Roger c. and the Mannor discended to his son and heire after his death who conveyed the Mannor of which the acre is parcel after the escheat by mean conveyance to Hobert in fee and that Hobert 12. Eliz. infeoffed one Wright of the Mannor of which the said acre is parcel and so justified by a conveyance from Wright to the Defendant the Plantiff replied by protestation that the Abbot was not eligible and for plea he said that the aforesaid Hobert 10. Eliz. infeoffed I. S. of the said acre of land absque hoc that he infeoffed Wright of the sad Mannor of which the said acre is parcel and upon this the Defendant demurred generally And Serjeant Attoe argued for the Plantiff that the Plea of the Defendant is evil and then though the replication of the Plantiff is not good yet the Plantiff shall have judgement and he cited Turners case Hobert it is true Cook 8. if the replication be meerly void then it is as you had said but if the replication be the title of the Plantiff and that be insufficient there the Plantiff shall not have judgement though the plea in barre was evil Attoe agreed that if it appear by the Plantiffs own shewing that he had no cause of action and that he had no title he shall not have judgement but here he had made a good title by the lease of the said acre of land and though our traverse is evil and sounds in doubleness yet the Defendant had demurred generally and so he had lost the advantage of the doubleness or of the negative pregnant for if a maâ— plead double matter this is only matter of form and not of substance and therefore after verdict it is good as hath been adjudged but he proceeded in his argument and he said that the barre of the Defendant is not good for by his own shewing this acre of land is not parcel of the Mannor for by the dissolution of the Monastery by the death of all the Monks the land shall go to the founders and donors and not to escheat to the Lord of which that is holden as appears 2. H. 6. 7. and 5. H. 7. if an annuity or rent be granted to an Abbot in fee and the Abbot and all his Monks do die the annuity or the rent is extinct and shall not escheat see the Deane of Norwiches case Coo. 3. agreed that by the death of the Abbot and his Covent the corporation is dissolved and then the possession shall go to the founders and shall not escheat to the Lord of the Mannor of which the Land was holden and he said that this point is proved cleerly by the Statute of the 27. H. 8. and 31. H. 8. of Monasteries in which Statutes there is an express saving to all persons except to the donors and to their heires and no mention is made of the saving of the right of those of whom the land was holden and that proves cleerly that if the makers of the Statute had thought that the land had escheated to the Lords they would have excepted them in the saving of the act as they had excepted the Donors and Founders for if otherwise the lands and possessions shall escheat to the Lords of which the land was holden they are within the saving of the Statute and then it will follow that after the death of all the Monks as at this day that the Lords shall have the land by escheat which the Sages of the Law never dreamt of who made that Statute that any thing may accrew to the Lord and therefore they provided only for the title of the Donors and Founders which is an argument that they thought that upon the dissolution of the Monesteries that the lands shall go to the Founders and the same he thought concerning a corporation at this day as of Suttons Hospital c. and so he concluded that because in the barre of the Defendant he claimed to hold from the Lord to whom he supposed the land to escheat and did not claim c. by his own shewing the barre is not good and though our replication and traverse is not good yet the Plantiff shall have judgement But admitting that the barre is good yet the replication and traverse is good and then judgement shall be given for the Plantiff and the case is the Defendant pleaded a feofment of the Man 12. Eliz. to Wright after that he had shewed the escheat of an acre the Plantiff replied that the 10th Eliz. the Feofor infeoffed C. of the acre of land absque hoc that he was infeoffed of the Mannor of which the acre is parcel and Attoe argued that the traverse is good and he alleadged 38. H. 6. 49. the same traverse and here when the Defendant had pleaded that the acre escheated and had alleadged a Feofment of the Mannor and had not expresly alleadged a Feofment of the acre the Plantiff may traverse that which is not expresly alleadged because this destroyes the very title of the Defendant and he cited for that 34. H. 6. 15. a writ of priviledge in trespass as a Servant to an auditor of the exchequer the Plantiff replied that he was servant to him in husbandry absque hoc that he was his servant to waite and attend upon him in his office and it was holden a good traverse and yet that was not expresly alleadged by the Defendant Hobert chief Iustice said that the traverse is not good for by the Feofment which was made the 12th Eliz. he had confessed and avoyded the Feofment which was made 10th Eliz. and so there needed no traverse and therefore he said the great doubt of the case will be upon the barre of the Defendant whether by the death of the Abbot and the Monks the land escheat to the Lords of whom that was holden or whether that shall go to the Donors and to the Founders and he thought that the land shall escheat to which
also he said that in some parts the Vicar shall have Tithe Corn and hay and not the Parson and so he concluded this to be a good prescription by the Common Law and then for the second point he argued that though the Park is disparked yet the modus decimandi continued and he vouched Beddingfields and Fields case P. 38. Eliz. B. R. prescribed to pay 10. s. for a Park this modus had a continuance notwithstanding the disparking and 18. Iac. upon a motion a prohibition was granted in such a case Hendon to the contrary and yet for the first point he agreed that a prescription to pay Tithes to the Vicar was good for here it appeares that the Vicarage is as antient as the Parsonage both being time beyond memory and it was the opinion of all this Court when the case was first opened and so he said he would not insist upon that but agree the Law to be against him but then for the second point he held the modus to be gone by the disparking for the prescription is annexed to the Park and not to the land for the prescription is to pay a Buck and a Doe for all manner of Tiths of that Park and then the prescription is in some sort annexed to that meerly as land but quatenus a Park and for this he held if a man will prescribe to pay 10. s. for the Tithes of such land and it is given in evidence to be a Park this will not maintain the issue for a Park is deceivable one way or other and so are of several natures and so Coo. 4. Lutterels case a tenure to cover the hall of the Lord if the hall is thrown down the tenure is gone and here when the Park is destroyed the modus is also destroyed but it hath been objected here that the prescription is general and therefore though the Park was disparked yet the modus had continued to this he answered that this prescription shall have such construction as a grant shall have and though it is general yet it is sub modo subject to this limitation that this alwayes continue and remain a Park and it was resolved 43. Eliz. that the Commoner may not grant over his Common except he grant over his Tenement for they may not be severed and so indeed is Nevils case in the Commentaries a man prescribed to have estovers to burn in his house if the owner destroy the house the estovers are gone for the prescription is annexed to the house and so in our case the prescription is annexed to the Park and not to the land for 18. H. 6. 21. a Park may not be without the grant of the King and the Common Law saith if a man prescribe to have Tithes in a Vineyard if the Vineyard be converted to another use the Tithes are gone for it is said tantum est prescriptio quantum est possessio and vouched Coneys case 14. Caro. who prescribed to be discharged of paying Tithes for a meadow and afterwards this was converted to arrable and the opinion of the Court was that the prescription is gone and the rather in our case because it is by the act of the party himself that the Park is destroyed yet he agreed the principal case in Lutterels case Coo. 4. for there a new will is only a translation of the old and no destruction of the thing which was before but in our case the Park it self is destroyed by the act of the party himself and therefore the prescription which was annexed to this is gone forever Also this prescription is against Common right and therefore shall be taken strictly as Teringhams case Coo. 4. a man had Common appurtenant in another mans land and he purchased parcel of the same land the Common is gone because this Common is against Common right but otherwise of a Common appendant and he cited Wilds case Coo. 8. according to our case that a prescription to pay a Buck and a Doe for the Tithes of a Park is against Common right for though Tithes are not due Iure divino yet they are due jure humano Communi and therefore the prescription is not founded in Law and it shall not be intended to the Park when that is destroyed and converted to arrable as if a man made a feofment of land with warranty and afterwards the land is improved and made of greater value then that was at the time of the feofment if in this case the feoffee is evicted and lease that and recovery in value upon the warranty he shall recover in this case only the value that this was at the time of the feofment made and not according to the value that the land is of at this day by the improvement 32. E. 3. Entry 81. and in our case it shall be intended that by composition at the first this prescription had beginning and the composition only extended to the Park and not to a new thing and for that reason the prescription is gone in this case and he cited a case in this Court M. 10. Iac. Rot. 1223. in a prohibition between Roux C. D. the Plantiff suggested that such land was parcel of a Park as in our case and that the owner had used to pay the shoulder of every Doe which was killed and 2. s. annually for all Tithes the Defendant pleaded that this was disparked and the first opinion of the Court was that the Defendant ought to plead in certain how that was disparked secondly this was doubted whether the modus as to the 2. s. was gone in regard that the shoulder of the Doe is gone by the disparking out of which he collected that the modus is annexed to the Park and not to the land and so he concluded and prayed a consultation Winch said to him the prescription is found against you and therefore you ought to have demurred Hendon if the prescription is gone the Plantiff shall not have a prohibition and at another day judgement was commanded to be entered for the Plantiff judgement if no other matter is shewed by such a day Hobert and Winch being only present The Bishop of Glocester against Wood. IN a Trover and conversion brought by the Bishop of Glocester against Wood upon a special verdict the case in effect was that the predecessor of the now Bishop was seised of the Mannor of D. and he let 20. acres of that to A. and B. during the lives of 3. of their Children rendring 27. s. renâ— per annum and also paying and delivering to the Bishop and to his successors two of the best beasts upon the death of every one of the Cestuy que vies and over the jury found that after the lease of the 20. acres the same predecessor let all the Mannor rendring the antient rent to Wood the Defendant and after one of the Cestui que vies died and he seised two of the Cattle for a herriot and whether this appertained to Wood
for the third part as in debt upon a lease for years and it is found that he had not cause to demand all the rent but that tâ—is ought to be apportioned yet he shall have judgement for the residue and so here Ashley Serjeant to the contrary the jury have found for the Plantiff for the avowant had avowed for all and he alleadged 26. Assise where in an assise the seisin and the diseisin was found and yet because there was no Tenant found of the Frank-tenement the Plantiff shall have judgement and as to that that had been said that the avowant shall have retorn for part he denied that for now it appeared by the special verdict that the avowant and the devisee are Tenants in Common and Tenants in Common ought to joyn in avowry and for that reason the avowant shall not have return for any part but he ought to replead Dyer 177. see the book Hobert said that without question in this case if the jury had given a general verdict this had been against the Plantiff for it was not devised if all was not devised according to the issue and then if it would have been against the Plantiff in this case of a general verdict the special verdict shall be construed to be of the same nature in law and it shall be adjudged by us against the Plantiff for generally where the general issue shall be against any of the parties there the special verdict shall be of the same degree and Winch and Hutton agreed and by Winch who pleads in the affirmative ought to prove all to be true as in the case of Soper which had been remembred by my brother Hendon and by Hutton every issue which is taken upon absque hoc ought to be precisely found and as to the second point he held that the avowant shall have return for part for here the jury haue found the third part of the reversion in him and by that there appears a sufficient certainty to the Court to make an apportionment then if the Court may make an apportionment the avowant shall have return for so much as is due to him but if the apportionment is to be made by the jury and not by the Court there the avowant shall not have return for the third part but if it was in debt for 40. l. and the jury finde 20. l. the Plantiff shall have judgement of that part to be apportioned by the jury and so in Trespass if part be found for the Plantiff he shall have judgement for the demand is by writ but in our case it is an avowry and it is a certain issue and for that reason the avowant shall not have return for the third part adjourned Hutton alledged 28. H. 8. 32. and at another day judgement was commanded to be entered for the avow an t Hobert and Winch being only present Note that if a man make a lease of several parcels of land in a Town and this is for the trial of a title in an ejectione firme he ought to enter into every part of those several and to leave a servant or other to keep the possession till he had entered into every parcel and then to deliver the lease of all and this is good Empson and Bathrust before THe case of Empson against Bathrust was moved again by Harris and he praied judgement for the Plantiff and it had been said that this obligation is void by the Statute of the 23 H. 6. but he held that this Statute did not extend to this obligation for it is only where a sheriff takes a bond of any person which is in his ward and yet he said he never found in any book the Sheriff might exact any fee of any person for he is an officer of the King but 21. H. 7. he may prescribe to have a bare fee but the Statute of 23. H. 6. appoints little fees in some cases Secondly he argued in this case that the Sheriff may take a bond for by 29. of Eliz. this is a due debt to the Sheriff and then if the Sheriff give the partie day till another day it is good reason he shall have a bond for that for his security Thirdly he held that the Sheriff may take this bond of the party after the extent and before the liberate by the Statute of the 29. Eliz. for otherwise perchance when the Sheriff had made the extent perchance the Conusee will not sue out the liberate and so the Sheriff shall be defeated of all his labour and travel taken in the extent and in the last place he said that in case the summe exceeded a 100. l. the Sheriff shall have 6. d. in the pound for that which exceeds and 12. d. for the first hundred pound but it was resolved by Hobert Winch and Hutton that judgement shall be given against the Plantiff and first they agreed this obligation not to be within 23. H. 6. for the partie was not in the ward of the Sheriff and so was resolved in Bewfages case Secondly it was agreed by the said 3. Iustices that the Sheriff may not take his salary appointed by the Statute till a compleat execution viz. till the liberate for the words of the Statute are in the negative and doth not establish the fees but only tolerates them and Hobert said if the Sheriff made an extent and before the liberate a new Sheriff is chosen then in this case the new Sheriff shall have the fees appointed by the Statute and not the antient Sheriff and by Hobert if the Conusee sue an extent and then refuse to sue the liberate to the intent to defraud the Sheriff of his fees the Sheriff shall have his remedy by his action upon the case and by Hutton if the Sheriff return upon the extent that he is ready to deliver that to the Conusee this is sufficient to intitle him to his action upon the case and thirdly it was holden by Hobert and by Winch that the Sheriff shall have but 6. d. in the pound for all if it exceed 100. l. for so was the intent of the Statute but Hutton said that the Common practise is otherwise and Hobert said that he did not value that for he knew well enough that the Sheriff will rather take more then less then their fees and though it had been said that if such a Construction shall be made then the Sheriff shall have as much for executing 100. l. as 200. l. to this he said the Sheriff ought to take this subject to this casually for it is the very words of the Statute and lastly it was resolved by Hobert and Winch that the obligation was void by the Common law and extortion and a taking by the Colour of his office see Dive and Manninghams case and Hobert said that every bond that is taken for any thing which is malum in se is void by the Common law and this extortion is malum in se and so void by
prayed judgement in the case for the Defendant Finis M. 20. Jac. The Bishop of Glocester against Wood before NOw the case between the Bishop of Glocester and Wood was adjudged Hobert and Winch being only present and first it was resolved by them that when the Bishop let parcel as 20. acres for life and after he lets the Mannor it self to another rendring rent in this case the rent issues out of the intire Mannor for if in debt for the rent the lessor do declare upon a demise of the Mannor omitting the reversion of this parcel the declaration is evill and upon non dimisit pleaded it shall be found against him Secondly this they held that the Herriot reserved shall go with the reversion and if this do not go with the reversion to the lessee of the Mannor yet the Plantiff shall not have the Herriot and then though the Defendant had not good title to the Herriot yet if the property of the Herriot do not appertain to the Plantiff he shall not have a trover and conversion for the Defendant had the first possession and judgement was commanded to be entred for the Defendant if no other cause was shewed before next thursday Hill 20. Jac. C. P. Bulloigne against William Gervase Administrator BUlloigne brought an action of debt upon an obligation of 12. l. against William Gervase Administrator to I. S. and the Defendant pleaded that the intestate died outlawed and that the outlawrie alwayes continued in force and upon this the Plantiff did demur generally and it was argued by Attoe for the Plantiff for the plea is not good for this is a plea only by way of argument that he shall not be charged for this debt because he had not assets and in this case this outlawrie ought to be given in evidence upon nothing in his hands being pleaded and it ought not to be pleaded in barre for by possibility the outlawrie may be reversed and then the Administrator shall be charged if he had any goods and he vouched a case in this Court Trin. 27. Eliz. Rot. 2954. Worley against Bradwel and Dame Manners his wife Administratrix to Sir Thomas Manners and the feme pleaded outlawrie in the intestate and the Plantiff demurred generally and it was adjudged to be no plea and note that the record was brought into the Court and read accordingly Hitcham Serjeant to the contrary the record in Manners case was not well pleaded for the Defendant only shewed that a Capias ad satisfaciendum issued against the Testator and did not shew any recovery or judgement against him and that was the reason of the judgement in that case and the Plantiff here ought to have demurred specially as the case of 27. of Eliz. for otherwise he shall not have advantage of this plea and the plea is only evil for the manner for it is apparant that by the outlawrie of the Testator all his goods are forfeit and this is the reason of the book of 16. E. 4. 4. it is a good plea in an action of debt to plead an outlawrie in the Plantiff and to demand judgement of the action and not judgement of the writ for the debt is forfeit to the King by the outlawrie Hobert Hutton and Winch the president shewed by Attoe is not answered for though the pleading of the outlawrie is without shewing of a recovery and judgement yet the outlawrie is good till it is reversed and Hutton said that in some cases an Executor or Administrator had goods though the Testator died outlawed as if the Testator let for life rendring rent and the rent is behinde and after the Testator is outlawed and dies this shall not be forfeit but his Executors shall have the rent and if a man make a feofment upon condition that the feoffor pay 100. l. to the feoffee and his heirs or Executors and the feoffee is outlawed and the feoffor pay the money to his Executors as he may well the Executors and not the King shall have that also if the Testator is outlawed and he devise his land to his Executors to be sold these moneys shall not be forfeit and they shall agree that the plea was not good notwithstanding the general demurrer for he who will barre another by an argumentative plea his plea ought to be infallible to all intents and purposes and so it is not here for the Executors and the Administrators may be charged by the having of goods though the Testator was outlawed and for that the plea of the Defendant is not good in substance and the general demurrer is good by Hobert and by him if we suffer this plea then the Defendant will keep the goods and not reverse the outlawrie nor yet satisfie the King also if he had not goods the Defendant may plead plene Administravit or nothing in his hands and give this outlawrie in evidence See 8. E. 4. 6. 3. H. 6. 32. 39. H. 6. 37. by the opinion of Prisot and also see the case in E. 4. 5. a case to this purpose and also note well that it was said concerning the case of Manners that a writ of error was brought of that afterwards and that the case remains till this day undetermined Buckley against Simonds Ent. 18. Jac. Rot. 2120. NOw at this day the case of Buckley and Simonds was argued by Iustice Hutton and by Winch and the case was briefly this Anne Buckley Administrator to Andrew Buckley her Husband was Plantiff in a quare Imp. against John Simonds John Prior and Robert Pierce Alias Price for disturbing her to present to the Church of D. and shewed that Andrew Buckley Grandfather of the Husband of the Plantiff was seised of the said advowson in gross and presented one I. S. and he died after whose death the advowson discended to Richard Buckley and that the Church became void and that one Richard Williams usurped upon the said Richard Buckley then being within age and that Richard Buckley also died and by his death the said advowson discended to Andrew Buckley as brother and as heir to Richard and that the Church became void and before the presentment by Andrew and within 6. moneths Andrew died and that the Administration of the goods of Andrew were committed to the Plantiff and that she presented within 6. moneths and the Defendants disturbed her and the Defendants pleaded in barre and confessed the seisin of the Grandfather as is alledged in the declaration and they said that the said Andrew Buckley 14. Eliz. by his Indenture made between the said Andrew Buckley on the one part and John Preston of the other part by which the said Andrew Buckley by the same Indenture covenanted with Preston in consideration of a marriage to be had between John Buckley and Elizabeth Preston daughter of John Preston he covenanted with him and his heirs that immediately after he death of him and of his wife the said advowson inter alia shall be to the said John Buckley
covenantor shall have an estate for life and so the law makes in that case fractions of estates as the case of the Lord Seymor Dyer 96. seems to accord with this and besides those two books he said he could not finde any book which will warrant that and for that reason he held those two books to be no law for if I Covenant that my son shall have my land after my death this will not raise an estate to me by implication for life and an estate to my son and so by such means to change my estate in fee for an estate for life without more words for the word covenant in his proper and native signification is only obligatorie and yet it had been alwayes conceived sufficient to raise an use to him who is not partie to that as if I covenant with a stranger that I will stand seised of my land to the use of my son this will raise an use to my son and yet neither my son nor the covenantee may have an action of covenant but an use will very well arise to my son as if a man bargain and sell his land in consideration of 100. l. paid by I. S. though in this case the consideration ariseth from a stronger yet that will pass the use to the bargainee and in case of covenant it is not this word covenant only which creats the use but it is rather the agreement of the parties which is testified by the covenant for if sufficient agreement appears there will not need this word covenant as if I will agree and declare to stand seised to the use of my son by which it appears that the word covenant is onely declarative of the intentions of the parties and then in the principal case the covenant is not that the son shall have the land but that the land shall come remain and be to him and those words are incertain as 21. H. 7. redert come or discent and for that reason it is all one with the law of the same case and then void to raise any use for the incertainly and then when Andrew Buckley covenants that his son shall have his lands and no words to inforce his intention and for that reason the intention shall be lyable to an action of covenant and not to change his estate which he had in fee for an estate for life by this covenant but if he had expresly covenanted that in consideration of marriage of his son that he would hold his land for life and after this should be to his son this will change the estate which was in fee for an estate for life but in our case the covenant being general and left to the indifferent construction of the law the word covenant shall be taken in his proper and native signification and this is obligatorie and so he concluded that this covenant being at the first to grant a rent and was executory and the last part of that is executory for assurance and the limitation of the estate to the son being intangled between these two Covenants this shall be of the same nature and by consequence the covenant is obligatorie only and will raise no use to the son and so he concluded that judgement shall be given for the Plantiff and it was commanded to be entered accordingly Sparrow against Sowgate IN debt by Sparrow against Sowgate who declared that the Defendant became Bail for one Richard Sowgate in Banco Regis against whom the Plantiff had brought a Bill of debt of 77. l. and now the Defendant bound himself in a Recognizance of 77. l. upon which the action is now brought that in case judgement should be given against the said Richard Sowgate that he shall satisfie the said judgement or render his bodie to prison for in this case no part was impossible for after the judgement the principal may render himself in B. R. to the Marshal for the redemption of his suretie and that is the Common course there as he said but he agreed the case to be otherwise if a scire facias issue out of the Kings Bench against the Bail for there the death of the principal is a good plea for a scire facias doth not lie there till default is assigned in the principal in his not comming upon the capias ad satisfaciendum which may not be when he is dead Note that but yet before any capias it is clear he may have an action of debt Sir Robert Hitcham Serjeant of the King to the contrary and he alledged this to be the constant course in the Kings Bench that the Bail is never chargable till there is default assigned in the principal upon the recorn of the Capias ad satisfaciendum which may not be here for the principal is dead and he agreed the case of the other side that when a man is to do two things though the one is become impossible yet he ought to perform the other but when it is in the election of one to make either the one or the other then it is otherwise see Dyer 262. and so he concluded for the Defendant Hobert chief Iustice said that it is inconvenient that the Plantiff shall be forced to sue his Capias ad satisfaciendum against the partie before he have execution against the Bail for perchance he will sue a fieri facias or an elegit against him and that the Corps of the partie will not satisfie him and Browlow Prothonotary said that it had been adjudged in this Court that such plea is not good Winch the course of the Kings Bench is that default shall be assigned upon the retorn of the principal before the Bail shall be charged and though the Plantiff refuse to take his bodie after he had made his election to take his fieri facias or elegit he shall never more resort to the Bail which was granted by Hobert and Hutton as to that last point and it was holden by all the Court that if the principal render his bodie though the Plantiff refuse to take that yet that is a discharge of the Bail and also it was agreed by Hutton Hobert and by Winch that if the course of the Kings Bench be such that the Bail shall not be forfeit till there is a default assigned in the principal the same course also shall be followed here and per Curiam if the course of the Kings Bench be such that such Capias is necessary to be awarded that then a convenient time shall be allowed for the principal to render his bodie gratis and if the principal do die before such time the Bail is discharged but it was said by Winch if he die before convenient time and the Capias is awarded that such death shall not discharge the Bail note that Iones Iustice said that he thought in this case that it is necessary that the principal render himself gratis for when he is let to Bail the law supposeth him to be alwayes in custodie
Infant was not bound by this Covenant at the Common Law and no Collateral covenant shall be maintainable upon the Statute for this being against an Infant it shall be taken strictly as a custome that one shall infeoffe yet that custome will not warrant him to lease and release and as to that which had been said that it is incident to every retainer to serve truly and faithfully that is very true and an action upon the case lies upon a covenant in law but not upon the covenant in fact he ought to have Collateral securitie which was also confessed by Hutton and he said moreover that the retainer is for the benefit of the Infant that he learn his Trade but the covenant here is for his disadvantage and for the advantage of his Mr. and for that reason it is void as if an Infant had covenanted to pay 10. l. for the learning of his Trade when his time was up Winch Iustice contrary to that last point for he thought the covenant to be incident to the retainer and good though he is an Infant as an Infant who levyes a fine is also inabled to make an indenture to lead the uses and note that Hutton and Hobert said also that the barre of the Defendant is good viz. the pleading of the want of the certificate and for that reason the replication of the Plantiff that he had 40. s. per annum is evil and though the rejoynder of the Defendant is evil and a departure yet it appears that the Plantiff had not any cause of action and for the covenant they said that they two are strong in their opinions and upon that Winch agreed also that judgement shall be given against the Plantiff and Attoe moved the Court what remedy the Plantiff may have for the loss is 500. l. and per totam â—uriam he shall not have an action of accompt for that lies not against an Infant being an apprentice Coo. 11. 89. and the Court said that as to the retainer and the damage it is no more then if an Infant had been retained by word and there is not any remedy but an action upon the case and Attoe said that they had thought to have brought an action of Trover and conversion and he doubted whether that will lie and after the Court said to him you had best to bring an action upon your case and it was afterwards ordered by Arbitrement Oxford and his wife against Goldington IN a Prohibition for Oxford and his wife against Goldington to the Court of Audience for they are sued there for a legacie devised to the Plantiff by one George Cotton and this is as they are Administrators to one William Cotton who was executor of the said George for that he libelled against the Plantiffs in the Prohibition in the Court of Audience and had shewed that they had goods of the first Testator and a Prohibition was awarded and Finch moved for a consultation and he said if by the spiritual Law an Executor wasts the goods of the Testator and after dies intestate that in this case his Administrator shall answer that viz. the debts and the legacies of the first Testator and Doctor Pope who was present in the Court said that the Law was so and so he said the Common Law was that is the Statute of 31. E. 3. which gives the same remedy against an Administrator as against an Executor if the Executor die intestate for it is the interest of the first Testator upon which the Administrator shall be committed to the next of the Kin and if none will take that upon them then the Administration of the Executor ought and ought to take several letters of Administration for that and if no letters of administration is taken and yet he meet with the goods he shall be charged as an Executor of his own wrong and if no goods be of the first Testators then it is no reason that he should be charged and the Statute of 31. E. 3. gives no remedy per Curiam but against the immediate Administrator and if the case be as you have alledged then the Legatee or the debtee is at no damage or mischief for he may sue the Administrator of the first Testator if he had goods or any other who had goods as Executor of his own wrong and if none will take letters nor yet meddle with the goods then the debtee or the Legatee may take letters of Administration himself and so no consultation was awarded but the Prohibition stood Avis against Gennie and others ONe Avis brought an action of Trespass of his close broken against Gennie and two others and the writ was general but in the the declaration he affirmed that to be in Ayring half a Rood and in digging another half Rood and after in his new assignement shewed that to be a Sellion containing by estimation and acre and it was found for the Plantiff and damages assessed to 20. s. and now it was moved in arrest of judgement by Attoe because the new assignement is more large then the declaration and the opinion of the Court was that because this was but an action of Trespas where damages only is to be recovered that this is very good but otherwise it is perthance if that had been in an ejectione firme Brigs case BRigs brought a Prohibition against another and alledged that the Dean and Chapter of D. was seised of the Mannor and the Defendant being Vicar sued to have Tithe in Court Christian and shewed that time beyond memory c. they had held that discharged of Tithes for them and their Tenants and that they let that to the Plantiff and it was moved by Hendon Serjeant that the Dean and the Chapter are a bodie Politique and temporal which are not capable of this prescription in non decimando Coo. 2. the Bishop of Winchesters case Hobert said that the Dean and Chapter are a bodie spiritual and are annexed to the Bishop throughout all England and if the Bishop is capable of that as it is plain he is then the Dean and Chapter is also capable of that which was granted by Hutton but Winch doubted for Winch said he may be a lay man and for that the Plantiff ought to averre that he is a spiritual person Hutton confessed that the Dean may be a lay man as was the Dean of Durham by special licence and dispensation of a King but that is rare and a special case and is not common and general and therefore not to be brought as an example which was also granted by Hobert chief Iustice and upon that day was given over to the Defendant to shew cause wherefore the Prohibition shall not be granted Anne Summers case in Dower A Writ of Dower was brought by Anne Summers against the Tenant of the land and he pleaded a fine with proclamations levyed by her husband 14. Iac. in which year the husband died and the wife had not claimed within the Statute
of the 4. H. 7. cap. 24. the demandant replied that 15. Iac. she brought a writ of Dower against the now Tenants and against two others and that the writ abated by the death of the two others and that she brought a writ by Iourneys accompts the Tenant replied that the others were not Tenants but one Sir Iohn Web and it was moved that this rejoynder was evil for they confessed that they themselves are Tenants by which the writ is good against them at the least Hobert if she brought a writ of Dower against one who is not Tenant that is not any claim within the Statute but if she brought a Dower against 4. who are Tenants and two die and she bring a writ against the others by Iourneys accompts this is a good claim within the Statute though the second writ was after the time limitted but quere here if the two who died were not Tenants Trin. 21. Iac. C. P. Harvey against the Hundred of Chelsam HArvey brought an action upon the Statute of Winchester of Hue and cry against the Hundred of Chelsam and it is found for the Plantiff and a writ of error was brought and all the record was certified and now the Plantiff prayed two things may be amended the first is the title of the action for upon the roll it is an action upon the case it should be an action upon the Statute but it was said by Hobert that it shall not be amended for the Statue of the 18th of Eliz. did not give amendments upon indictments or upon popular actions or actions upon penal Statutes and cited a judgement in Doctor Husses case Coo. 9. 71. which was reversed in Banco Regis upon default in pleading being upon a penal Statute and so in Mich. Term last Judictari for Indictari and adjudged that it shall not be amended and the second point was upon the venire facias where was one Gregory retorned as appears by the names of the Iury but the Clark of the Assise returned one George and it was entered upon the roll and certified in the record to the Kings Bench and per totam Curiam there needs no amendment for that name of George where it should be Gregory being in the tales de circumstantibus and not in the principal panel and it was also by consent of the parties and as to the first point all the Court agreed with Hobert and for the second point Hobert said that if that variance had been material it should not be amended for we will not make a new certificate for the Court of the Kings Bench may choose to credit the first or the second certificate and so we submit our judgements to the censure and pleasure of another Court which we will not do and in the great case of Fulger 18. Iac. where we made such a new certificate though it was adjudged according to our opinion yet they would not credit our last certificate and therefore we will not make a certificate again which note well Hasset against Hanson HAsset brought an ejectione firme against Hanson and upon a general issue and a special verdict the case was this that one Woodhouse was lessee for years of the King of a Mannor and I. S. was a Copiholder of a Tenement of inheritance and the Coppiholder bargained and sold his Coppihold land in such a Town to the lessee of the Mannor and this was by indenture and the indenture was to this effect that he bargained and sold all his lands and Tenements as well Coppiholds as other land bought of Iohn Culpepper in such a Town and it was found that the lessee of the Mannor entered in the Coppihold and occupied and after that the said I. S. died after whose death W. S. his heir was admitted as heir of I. S. upon the presentment of the homage that I. S. died seised and that the said W. is his heir and that at the same Court W. S. Surrendered to the use of the Plantiff and he was admitted and it was argued by Richardson for the Plantiff and by Attoe for the Defendant And these insuing points were agreed by the Iustices S. by Hobert Winch Hutton and Iones and first it was said by Hobert that though a Coppiholder may not convey his Coppihold to a stranger without Surrender and admittance yet he may grant his estate to the Lord of the Mannor out of the Court by bargain and sale for the custome is not between the Lord and his Tenants but between themselves only Secondly Winch said that the admittance of the Lord viz. the lessee of the Mannor amounts to a grant to him who had a title but it is otherwise if it is to him who was in by wrong as by disseissin Coo 4. 22. which was granted by all the Court. Thirdly Iones Iustice said that the bargain is void for it is of all lands and Tenements bought of Iohn Culpepper and it was not found by verdict nor yet averred by the party that the land was bought of Culpepper which Hobert and Hutton granted and Hutton cited 2. E. 4. 29. but Winch to the contrary as to that point but they all agreed that the Plantiff shall have judgement and accordingly so it was done Mich. 21. Jac. C. P. M. 21. Iac. in C. P. Pleadal against Gosmore PLeadal an Attorney of the Common pleas brought an action of trespas against Gosmore and he declared of the taking of a Mare Colt in May and of the retainer till the first of Iuly and that the Defendant held him in Compedibus Anglice in fetters diversis vicibus temporibus by which she Colt was much the worse and the Defendant pleaded that the Countess of Hartford was Tenant for life of the Mannor of Sherstone within which the taking of the Colt is supposed to be and that the Lords of the Mannor time before memory c. had used to have estrayes and used to seise them by their Bailiffs and to proclaim them according to the Law of the land and that the said Mare Colt came within the Mannor such a day and the Defendant as Bailiff to the said Countess seised that as an astray and made proclamation according to the Law and when the Mare Colt was so fierce and wild that he could not came that nor keep that out of the lands of his neighbours he Fettered her as to him bene licuit and he detained her till the first of Iuly at which day the Plantiff came to him and told him that this was his Mare Colt upon which the Defendant delivered her which is the same Trespas c. and upon that the Plantiff demurred and Attoe argued that the plea was not good for matter of Law for a man may not Fetter an estray Colt as appears in the like case 27. Assises and the reason is because satisfaction shall be given for his damages which he made to the Defendant and he cited a case adjudged in that point 8. Iac. Trin. between
Harvey and Blacklock in this Court where the Defendant pleaded such plea in all points as here as to the Fettering for the Defendant fettered the horse of the Plantiff because he was so fierce and so wild to one of his own horses and so continued till he delivered him to the Plantiff and because the horse died within the year the Plantiff brought his action and upon this plea pleaded by the Defendant it was demurred in law and judgement was given for him for Cook who was then chief Iustice said that a horse may be of 40. or 100. l. price and it shall be intollerable to allow such Nusance and secondly he had not made proclamation and so trespass lies against and so in our case Harris Serjeant to the contrary for when the Lord of a Mannor takes an estate he had some kinde of property before the year is expired and for that reason he may detain the estray against the owner till amends is made to him 44. E. 3. 14. 29. E. 3. 6. by Knevet 20. H. 7. by Vavasor and Frewick and if he had property against the owner himself he may use that with moderation to make some benefit of that especially in case of necessity as 22. Assise 5. 6. a man may justifie the beating another if he be in a rage and 6. E. 4. 8. one may justifie the felling of a tree in the ground of another in case of necessity and here is no other way to restrain this Savage Colt and so the justification is good but in this case it was resolved by Hobert Winch and Hutton Iones being in the Chancery First when a beast comes within the Mannor of another Lord this is a trespas but after the seisure for an estray it is a possession of the estray in the Lord and the beginning of property as Hutton used the term so that he may have an action of trespass against any stranger which takes that out of his possession and if he estray into the land of another he may him retake Secondly it was resolved that if the Lord make not proclamation in convenient time that this possession became tortious for the law necessarily imposeth it upon the Lord of the Mannor that he make Proclamation because that otherwise the owner may not come to the knowledge of him Thirdly that the estray within the year is as a pledge in the Custody of the law till amends be made to the Lord and for that reason the Lord may not work him no more then he can work a distress Fourthly it was resolved that if the estray goe into the Mannor of another Lord and the last Lord claims that as an estray the first Lord had lost that but not before claim Fifthly Hutton and Winch agree that he might Fetter the Colt being so fierce and wild for he is answerable for the trespas and wrong which he makes in the land of his neighbours and also to the owner if he lose him and therefore it is unreasonable that he may not keep him safe for his indempnity and that is not like to the case 27. Assise which was urged of the other side also they said fettering is the usual way in the Country to restrain wild horses and therefore if it be in an ordinary manner as he Fetters his own there is not any remedy against the Defendant Hobert chief Iustice was against that last point for the Lord may not hold him in arcta custodia as a prisoner because he had rather the keeping of an estray the the property and for that if the estray go into the land of another Lord the first may not take him again if the other claims him as an estray for the possession was rather in regard of his Mannor then in regard of himself and therefore he shall not answer for the wrong which he doth in the lands of others for the possession is in regard of his Mannor and his Fettering is an abuse and he may not neither use nor abuse an estray and he said over that the Defendant had not well pleaded for another reason because he had not shewed that he proclaimed him in the next market Town within convenient time which convenient time ought to be adjudged by the Court and he said the Lord may not keep him else where within the year then within the Mannor Winch Iustice said the Defendant ought to proclaim an estray ut supra if the year be past for by that he gains an absolute propertie but here where no property is devested he needs not to proclaim him within the year and Hobert commanded this case to be moved again see the last case but one in the book Ruled that after imparlance in debt upon an obligation the Defendant shall be admitted to plead alwayes ready though the 13. Eliz. in Dyer was urged to the contrary Hill 21. Jac. C. P. Hillary Term in 21 year Iac. C. P. Trehern against Claybrook TRehern brought an action of debt against Claybrook upon a lease for years and upon nihil debet pleaded and a special verdict the case was to this effect the Grandfather of the Plantiff was seised of lands in Southwark and he made a lease for years of that to the Defendant at London rendring 45. l. rent and after he devised the reversion to the Plantiff in fee and in his will he set forth that his intent was that his Executors shall have the reversion during the Term upon condition that they enter into bond to pay 34. l. per annum at 4. usual Feasts during the Term and he further devised that this bond shall be made by the advise of his overseers and he limitted all this to be done within 6. moneths after his decease and if his Executors refuse his will was that his overseers shall take the profits upon the same condition and appointed that both obligations be made to the Plantiff and the devisor died and the Executors within 3. moneths shewed the will to the overseers but no obligation was offered to be made within the 6. moneths and the Plantiff required the Executors to enter into the obligation and to pay the rent which was not done and he claimed the reversion and brought his action afterwards in London where the lease was made and not in Southwark where the land did lie and this case was twice argued by Councel at the barre and now it was argued by the 3. Iustices Hobert being absent And Iones Iustice moved a point which was not moved at the barre viz. that the Plantiff is devisee of the reversion and so is privie in estate only and for that reason the action ought to be brought in Southwark where the land lies and not in London where the contract was made but the lessor himself had liberty to bring the action where he pleased in regard of the privitie of estate and contract and so was it adjudged in the Kings Bench between Glover and Humble and here though this be
and at that day the Court was of opinion that judgement shall be given for the Plantiff for by the rejoynder the Defendant had shewed that he had forfeited the bond though that be another matter then is in the replication and so he shall have judgement super totam materiam according to the judgement in Francis Case Coo. 8. for their the declaration stood good though the Plantiff had not cause of action in the same manner yet because it appeared he had cause of action he shall have judgement Weaver against Best VVEaver against Best in debt for 48. s. in the debet and detinet and for 2. shirts in the detinet only and he declared that the Defendant such a year retained the Plantiff to be his servant in husbandry giving him 48. s. and a shirt by the year and he shewed that he retained him for the next year and he averred that he served him and they were at issue upon nihil debet and the Plantiff had a verdict for him and it was now moved in arrest of judgement by Serjeant Brigman because he had not shewed that his retainer was according to the Statute of the 5th of Eliz. which Statute limitteth the form of there retainer and their wages and other things and he had not shewed the place where service was and also he had joyned two debts in one action one in the debet and detinet the other in the detinet only and Winch Iustice said that the Statute of the 5. Eliz. extends to such as are retained in husbandry and therefore other retainers are left as they were before the Statute at the Common law and this shall be intended to be a retainer according to the Statute if the contrary be not shewed by the other partie for his retainer was for a year and therefore it shall be intended that the wages was appointed by the Iustices and it was also said by the Court that if the justices of the peace in this kinde do neglect to set down the wages yet a servant may bring an Action upon his own contract also it was said that he needs not to shew the place where he served for if he did no service yet if he did not depart it is very good and for the other matter it was clear that he may bring his Action so by several precipes in one writ Thornes case IT was agreed clearly between Thorn and C. that where an obligation is made and the obligor and the obligee conferred about it and the obligor said to the obligee that he had forged this this is actionable for here it refers to a certainty but if he had said to the other thus he was a forger and had forged falsâ— writings no action will lie for the words are to general in that case also it was agreed clearly by the Court the Sheriff may not arrest a man upon a Capias after the time of the return of the writ Grasier against Wheeler Grasier as Executor brought an action of Covenant against Wheeler upon a lease made by the Testator rendring rent and this was made by I. S. and the Defendant covenanted that the lessee should pay the rent and the Plantiff assigned the breach in non-payment of 30. l. to the Testator such a day when it was due and for 10. l. due in his own time and the attorney of the Defendants as to the 10. l. pleaded non sum informatus and as to the other he pleaded that the Defendant paid to the Testator 7. l. in money and a horse in full satisfaction of all the said 30. l and that the Testator accepted that in full satisfaction and the Plantiff said that this was paid to the Testator for another debt absque hoc that he received that in satisfaction of the 30. l. and now Devenport argued that the issue was misjoyned for the issue ought to have been taken upon the payment and not upon the acceptance and he cited Pinnels case Coo. 5. where the payment in full satisfaction ought to be pleaded precisely and he said that he agreed to the case of Nichols Coo. 5. where the issue was joyned upon payment upon a single Bill and found that this was not paid and the Plantiff had judgement but if the issue had been found for the Defendant that had not been aided by the Statute for though it had been paid yet that was no bar Bridgman contrary and he said the difference is where the issue is joyned upon a matter alledged by the adverse partie and they are at issue upon a point which is not material that is aided by the Statute of the 18. Eliz. and where no issue at all is joyned there is not any help Winch Iustice said that this is an issue which will make an end of the matter And at another day this Tearm Serjeant Harvey moved the case again in arrest of judgement because the issue is joyned upon the acceptance which is not material and he cited Fowkes case depending in this Court debt upon an obligation and the Defendant pleaded the acceptance of another obligation in satisfaction which in verity is no bar and issue was taken upon that and it was doubted whether this being insufficient be aided by the Statute or not Bridgman Serjeant said to the contrary and he said as before that because the issue is taken upon the allegation of the Defendant if it is not good yet it is aided by the Statute of 32. H. 8. and Hutton said this is a full issue and as to the traverse said it is a material issue for he pleaded that he accepted them for another thing absque hoc that he accepted them in satisfaction of the 30. l. which is the most proper issue for he said it is clear that he may say that he accepted them for part c. and good and so here The Countess of Barkshire and Sir Peter Vanlore in Dower IT was agreed clearly in Dower between the Countess of Barkshire and Sir Peter Vanlore that if the Tenant plead never seised to have Dower and in verity the husband of the demandant had an estate but that was by disseisin which is avouched by the entrie of the deseissee who had a title paramont this is no title by which she may have Dower though they are at issue upon this plea and also it was agreed that if a man had a good estate by bargain and sale from him who had right to alien that and yet after he accepts a fine upon conusance of right as that c. from the other partie though in this case this be a conclusion to the parties between whom the fine was to denie that the land was of the gift of the Conusor and so that he was seised yet it is not any conclusion to the jurors to finde the verity of the matter in fact and that he had nothing of the gift of the Conusor also it was agreed in that case if a man held lands
the demandant who appeared and entred into warranty freely and he pleaded that he had nothing by descent from Christopher Goldingham his father upon which plea the Tenant and the vouchee were at issue and the demandant had judgement against the Tenant to recover but cesset executio until the voucher is determined and after that and before the day of the nisi prius Edward Goldingham died and then at the day the Tenant lost by default so is the Record and now upon the prayer of the demandant to have a writ of seisin these cases were moved First by Serjeant Hendon that the writ of seisin may be stayed because as he said the Tenant may revouch the heir of the heir for it is not possible that the vouchee should lose by default because that he was dead and therefore you may see that he conceived that where it is said in the Record viz. on the back of the postea that the Tenant lost by default he conceived that to be meant of the vouchee and not of the Tenant in the writ of Dower but Hutton was of opinion that admitting that it should be so intended yet he may revouch for there was a judgement given against him with a cesset executio till the voucher is determined and that is now determined by his death and when judgement is once given he had not day in Court but if the vouchee had died after the warranty then he may revouch but here the Court rather intended that the record shall be meant that the Tenant in the writ of Dower made default and then it is not possible that ever he shall revouch but they said it had been more question if the Tenant had appeared at the day of the nisi prius and had pleaded the death of the vouchee after the last continuance and had prayed the advantage of his warranty and at another day Hendon moved that the judgement given against the Tenant was not good for it was absolute with a cesset executio where that ought to be a conditional judgement c. against the Tenant if the vouchee had not assets and if he had then judgement against him according to the Lord Dyer 202. Mich. 3. Ma. Rot. 508. for otherwise the Tenant shall lose the benefit of his warrantie against the voucher and so if the heir do confess the assets yet the judgement shall be conditional for otherwise if he had not assets according to his confession the demandant shall have a new judgement against the Tenant and of this opinion was Iones Iustice But Hutton said that this was very well and that the judgement may be either wayes conditional or absolute and he said that this is no prejudice to the warranty for the Tenant may have a scire facias against the vouchee but in this case day was given over till the next Term and the Prothonotaries were commanded to search the presidents concerning that See more after Mary Over and her second husband against Tucker MAry Over and her second husband brought an action of Dower against one Tucker and demanded Dower of the indowment of one Paul her fiâ—st husband and it was agreed that this trial ought to be by witnesses according to Dyer 155. and it was awarded by the Court that the the Councel of either side should draw up Interrogatories and put their neams to them and then they should be delivered to Master Waller the Prothonotary in whose office the cause is entred and he shall have the examination of the witnesses of both sides and then seal up the Interrogatories again and so remain till they were delivered over to the Court and then qui melius probat melius habet The residue of Easter Term in the two and twentieth year of King James in C. P. AN action of debt was was brought against an Executor who pleaded plene Administravit and the other replied and shewed that before this action brought he brought another action against the Defendant in which he was outlawed and that after the reversal of the outlawrie he took out this writ c. and that he had assets at the first bringing of the first writ and issue was taken upon that and it was found for the Plantiff and it was resolved that the Plantiff shall have judgement for this is in nature of Journeys accompts according as it was in Aldridges case upon the same matter which was long debated by the Court and it was also affirmed to be good law in a writ of error brought of that in the Kings Bench for otherwise if it should not be so the Defendant himself should take an advantage of his own evil plea which the law will not allow by any means to be suffered but then it was said by the Court that in this case the Plantiff in the action ought to bring his second writ immediately after the reversal of the first judgement in the outlawry if he will take any advantage of that Trin. 22. Jac. C. P. Trinity Term in the two and twentieth year of King James in the Common Pleas. HIckford brought an audita querela against Machin and the case in effect was this Richard Davis 43. Eliz. acknowledged a Statute Merchant of 500. l. before the Maior and Clark of Gloucester to Machin and all the circumstances of the Statute de mercatoribus were well observed saving only that no day of payment was mentioned and after the said Machin took a lease for years of part of the land of which the Conusor was seised and after the Conusor died intestate and Hickford took out letters of Administration and Machin sued execution against the said Hickford who brought an audita querela and the single point was whether this Statute be good in regard that no day of payment is appointed and after divers arguments by the Serjeants in other Terms this Term it was argued by all the Court and the effect of their several arguments were in this manner Iones Iustice began and said it seems to me that the Statute is good and that no audita querela will lie and he said here had been 3. objections made against this Statute first that every Act of Parliament which gives directions for the doing of a thing ought to be precisely pursued and shall not have an explanation upon an explanation and he said that notwithstanding this objection he thought the Statute to be good for in every Act of Parliament there is substance and there is form and if the substance be observed though not every circumstance yet that is very good and so is the case concerning conditions which are as strictly to be observed as any thing yet if the substance be observed though not the very letter yet this is very good as the case of Scroop Cook 10. one Covenanted to stand seised to devise uses with a provisee that if he shall be disposed to alter disanul or change the uses c. that then it shall be lawful at all
times at his pleasure to do this by his writtag indented under his hand subscribed in the presence of 3. witnesses to disanul them and also by the same writing to determine and set down other uses now if by indenture in the presence of three witnesses he do covenant with another to stand seised to other uses c. here though there is no express determination of the former uses according to the words yet the limitation of the new uses do implie a determination of the former uses and so the substance of the words observed though not the very litteral expression and so was it lately resolved in this Court between Kenet and Lee that where such covenants were with power of revocation in his life time sealed and delivered now if in this case this be done by Will sealed this is a sufficient revocation for the intent was satisfied and if in this case then by the same reason in our case but now let us come to this Statute and in this Statute there are matters of substance and matters of circumstance and the Statute of Acton Burnel saith that the debtor shall come before the Maior to acknowledge that now this is but a circumstance of the Statute for if the Maior come before him this is very good for the substance is that the Statute must be acknowledged before the Maior in proper person and not by Attorney and also the Statute saith that the recognizance be entred into the Roll with the hand of the Clark here the inrolment is the substance and not the writing and so the Statute de mercatoribus is that he ought to come before the chief Officer of the Citie c. and yet it hath been ruled here that if the Citie be governed by 2. chief officers he ought to come before them both for to this purpose they are but one nay the Statute is that he shall be a Merchant who shall acknowledge that and yet if he be not a Merchant he is within the compass of the Statute to be a Conusor but now to the point whether this is substance or circumstance and I am of opinion that though the day of payment is not expressed yet it is very well for a day may be in that and yet not be good as if it be at Michaelmas after I. S. shall come to Pauls now in this case because it may not appear to the Maior Iudicially when to award execution therefore it is not good but if this be to pay the first return of Michaelmas Term this is very good for there he may know immediately when to award execution and the same law if it be to pay before Michaelmas next or to pay presently as an obligation and so the Maior is bound to take notice that this is to be paid presently Another objection that it shall be frivolous that his bodie shall be taken so soon as it is acknowledged but I answer that this may be very well for this is for the securitie of the Merchant who is the Conusee and Merchants shall not be supposed to know when tendring may be in regard that they are supposed to be men of forreigne imploment and so upon the Statute of Bankrupts for the words of the Statute are to every creditor a portion is allotted to him by your construction the sale shall be void because it is not according to the words of the Statute but you see that this is ruled to be against you The third objection is explanatorie to the Statute of Acton Burnel and for that it ought to be precisely perused and not to varie from that but I answer to that that the Statute de mercatoribus it self had not been observed in every point and circumstance for the words of the Statute are that if the debtor do not pay at the day that then the debtee may come before the Maior and sue executtor and yet it was resolved Coo. 2. 48. that the executors of the Merchant may come and besides the words of the Statute are that the extent shall be of all his lands which were in the hands of the debtor at the time of the Statute acknowledged and yet if he who is the Conusor purchase lands afterwards yet they shall be liable to be extended by force of the same Statute though not made mention of and so it is out of the words of the same Statute and so I am of opinion that the Statute is good and that in this case no audita querela lies The argument of Justice Hutton HUtton contrary I am of opinion that this Statute is void and that the audita querela well lies in this case and all my argument shall be upon the Statute Acton Burnel for this is the fundamental Statute and I conceive that the intent of the law is to contain a certainty when the money shall be paid and the conclusion of the Statute de mercatoribus goes over and further then the Statute of Acton Burnel for this doth extend to all the subjects of the Kings Iews only excepted and there is a reservation that this shall not destroy the action of debt and also there is a reservation to the Iudges that they may take a recognizance as before and this Statute of Acton Burnel was made the 11th Edw. 1. and there are in that Statute several essential points Acton Burnel explained which of necessitie ought to be observed and first that this ought to be taken before an officer and yet two officers which are the chief officers may well do this for to this intent they are but one Secondly there ought to be a seal of they pâ—rtie Thirdly a day of the payment ought to be also expressed because the security is taken before an ignorant man Fourthly the seal of the King ought to be to that and fifthly this ought to be inrolled and it hath been also agreed to my hand that a conjectural day of payment is not good as at Mich. after the return of such a one from Rome or after the accomplishment of the age of 27. years for those shall never be dayes to give jurisdiction though they are good by way of contract and such a recognizance is good for any thing for which an action of debt will lie but if no action of debt will lie in this case then it is not good and so is also the Statute of 23. H. 8. cap. 6. for it doth not extend to such things but where an action of debt lies And the first part of the Statute is that the debt and the day of payment be entred in the roll that so it may appear whether the day be past nor no and that may not appear by the judgement of the law but upon the face of the Statute and there is also one clause in the Statute that if the debtor will say that his goods were delivered or sold for less then they were worth the partie had no remedy for when the Sheriff had
because this is for Merchants and the Statute was made for their securitie and by intendment they are men of forraign imployment and so have the less occasion to know the Law and these Statutes of traffick are to be cherished and not be pared to the verie quick and we all agree that every substantial matter ought to be pursued but not circumstances and then the question is whether this be substance or circumstance and we also agreed that there ought to be a time certain when the money shall be paid and that is either an actual time or a legal time and for the material points that ought to be acknowledged before an officer and in the Statute of Acton Burnel this word Maior is in that and no other principal officer and yet there is no doubt but that this may be taken before another who is a principal officer of a corporation though he be not a Maior Secondly this ought to be also before the Clark Thirdly it ought to contain words obligatorie Fourthly there ought to be a person bound Fifthly this ought to contain a summe but it may be a doubt if an action of debt will lie for that Sixthly it ought to be under the seal of the partie Seventhly it ought to be under the seal of the King Eightly the inrolments is also necessarie and this Statute is such a remedy as the Common Law never gave to the King himself so all assurances in this kind are to be made to the Merchants and certainly in our case the day is not so material but the time which the law will take notice of for the ignorance of the Maior must not make any Statute void and I do not grant the case that if this was to pay 10. l. after the death of S. P. this will not make that void but if the Statute be to pay at several dayes then then it is a quere in law whether it be payable till all the dayes of payment be past as of a bond and for the writ it is but to proportion our actions according and to do after this way or manner and so upon the whole matter I conclude that the Statute is good and that the audita querela doth not lie and judgement per Curiam was commanded to be entered against the Plantiff The case of Giles Bray was moved again in arrest of judgement and Hendon said that the Plantiff had declared of a waste made after the death of the said Edmund Bray the Grandfather which was to his disinheritance c. and the Iury did finde the original lease and assignment and they found that the waste was made before such a day which was before the death of the Grandfather and now he said that because it is found generally that before the death of the Grandfather the waste was made and this was found precisely and it is not found precisely that at the time of the waste made he was termor in possession and that is not good for it may be that he made that before the assignment and then it is not punishable of waste and if the waste was made in the life of the Grandfather he ought so to have declared for otherwise it was not immediately to his disinheritance nay the Grandfather might have during his life released or confirmed to the Tenant and so have determined the waste and then he in reversion shall not recover like to the case where an Abbot declares of the waste against the lessee of his predecessor and declares of waste generally this is not good for if this was made in the time of his predecessor then he may not punish that and so in our case perchance the Grandfather had released and then he in reversion may not recover but as to the first exception the Court seemed that because the Plantiff shewed expresly that he was possessed by vertue of the lease and he being so possessed made waste the finding of the jury shall be agreeable to that and so this exception was over ruled and for the other the rule of the Court was that whether this waste was committed in the time of the Grandfather or after his death this waste was to his disinheritance and the Grandfather by his release might not by any means discharge that waste for he may not transfer that priviledge and so the judgement was given for the Plantiff The residue of Trinity Term 22. Jac. C. P. NOw the case of Sir Robert Napper and Sir Thomas Earsefield was moved again in which the Plantiff assigned the breach because that after Sir Thomas and his wife did live asunder the land was not open nor subject to distress of Sir Robert Napper and upon the opening of this to the Court the Court conceived that this rent was granted to be paid immediately and to distrain for that but afterwards there is a clause that it shall not begin in point of payment till Sir Thomas and his wife did live asunder and then it shall be paid the first day which was limited after and Crawley Serjeant said that the intent was that it should begin presently and that it should be subject to distress and therefore to make that an entire covenant is against the very intentions of the parties for covenants in nature are several also if they shall be construed otherwise the partie shall be without the remedy which was intended S. a distress but the Lord Hobert and Winch were of opinion that if Sir Thomas Earsefield had received his estate truly that he had but a reversion expectant upon a term for years and then had made such a grant and such covenants then in this case the covenant had not been broken and then the meaning would be that he should not have any rent till he had one to grant but it doth not appear here and therefore is a difference and the covenant is broken and Winch said that the intent was that the wife shall have that for her maintenance when they did live asunder so that then it shall be paid to the use of his wife for this was in trust for her and for that reason they ought to be several covenants of necessitie for the state of the Mother of Sir Thomas Earsfield did not appear in those indentures and then he ought to take that as it is at this time and the appearing of that now is not material and if any other construction shall be made then the parties to the indentures shall be deframed Hutton of the same opinion that they are several covenants in the intent and meaning of the parties and they are of several natures for the first covenant is in the affirmative the second is in the Negative and the third is in the affirmative and it is all one as if the word covenant had been to every clause in express words for he did not say that this should be alwayes open and lyable to distress according to this estate for then it had been but
one covenant and it had been otherwise for if no estate had appeared he shall not be chargable in law nor perchance he would not deal with him and we ought not to take notice of any thing but that which is upon record nay his own plea proves that they are several covenants for to the negative covenant he pleads negatively and to the other he pleads in the affirmative and so the very intent proves them to be several covenants and Hobert of the same opinion that it shall be taken as a present grant to charge the present possession and so judgement was commanded to be entred for the Plan. Entred Easter Term 18. Jac. C. P. THe case of Goldingham and of Saunds was new moved again by Serjeant Winch and he prayed a writ of seisin against Saunds and the doubt was whether the first judgement being absolute with a cestat executio was good or whether this ought to be conditional and I conceive that in our books there are those differences in this point if the Tenant do vouch in a forraign Countie then without any more the demandant shall have judgement against the Tenant presently 17. Ed. 3. 50. 13. H. 4. judgement 224. because the demandant shall not recover Cook 9. but onely in the same Countie and the reason is clear in Anne Beddingfields case because the original may not extend to another Countie but if the voucher be in the same Countie then in some cases it shall be against the vouchee and in some cases it shall be against the Tenant and if the vouchee will come and render Dower then the judgement shall be conditional against him c. if he had in value and if he had not then against the Tenant and the other against the vouchee and so is Dyer fo 202. and Grayes case was a conditional judgement against the vouchee and so is the case 18. Ed. 3. fo 56. out of which books I note that in some cases the vouchee shall have judgement against him and the judgement in that case shall be conditional and so if the vouchee make default then the judgement shall be conditional against him 4. Ed. 3. 35. the old print 2. H. 4. 7. but if the case be that the demandant is delayed in his execution by the vouchee then he shall recover against the Tenant as if vouchee be in the ward of the King Dyer 326. and so in the case of a Common person as is 17. Ed. 3. by the Reporter who also cites a judgement given in the time of the same King though the opinion of the book is against that but then it hath been said that this is mischievous for then the Tenant shall loose his warranty I answer no more then when he is vouched in the ward of a Common person and over this the Law doth provide a remedie for him See 27. H. 8. cap. 10. 32. H. 8. cap. 5. as the Act of H. 8. if the feme be evict of the Dower by a title which is paramount then she may have a scire facias against the Tenant and if the vouchee had not assets in this case then the Tenant shall have execution against them as they hap and so is the judgement in Dyer 202. and there was a judgement in this Court 38. Eliz. Marie Ashburnham brought a writ of Dower against Skinner who vouched the heir of the husband as in this case and they were at issue upon assets in the same Countie and the same judgement as here and it was found by verdict for the vouchee and after the judgement and before the voucher was determined a writ of error was brought and affirmed and our case here is as strong as this and so I pray a writ of seisin for the demandant Serjeant Hendon to the contrary the question is whether this ought to be a conditional judgement or whether this may be absolute with a cesset executio as the case was here and I shall lay this foundation that it is in the election of the feme when the heir is vouched in the same Countie whether she will have the same against the Tenant or vouchee but for the case of 17. Ed. 3. that is but a quere of the Reporter which I do not value for the book it self was otherwise that it ought to be conditional because it is in the election of the feme to have that against either and for Dyer 202. there the question is whether the judgement shall be presently or stay and expect till the issue is tried between the vouchee and the Tenant but no question whether this shall be conditional or no and the reason is when he is vouched in the same Countie if he had assets then she had not election for there it shall be onely against the vouchee if that be found by verdict or confessal and this is for the benefit of the purchasor and also for the benefit of the demandant in Dower for the warranty in the antient time was the Common assurance of the realm and for that reason if the judgement may be against the heir it shall never be against the Purchasor and also it is for the benefit of the feme who is demandant in Dower for if she be indowed against the Tenant and afterwards she be evicted she shall not have a scire facias but if it was against the heir then she shall have a scire facias to have in recompence and so is 16. Ed. 3. Iudgement 3. that if in Dower the heir is vouched and made default the judgement shall be against him out of which I do conclude that the judgement ought of necessitie to be conditional for by this the State of the feme and of the Tenant is preserved for if the feme shall have that against the heir then she saves her warranty in Law and therefore if the judgement at the first may be absolute then you take away all advantages from the feme and the purchaser if it hap that it shall be against vouchee and for that reason it is not good for it is unalterable and it is a principle in out Law that the feme shall recover against the heir if he be vouched in the same Countie if he had assets and not against the Tenant 6. H. 3. Dower 16. the demandant shall recover immediately against the vouchee when he was vouched as heir and so is 18. Ed. 3. recovery in value 16. et 31. Ed. 3. vouch 30. there the judgement was against the vouchee though he had nothing by descent at the day of the writ purchased there is a writ in the register which recites such a recovery voucher and judgement conditional and so is the 34. H. 6. expresly and for that to say that the judgement may be absolute is to make all those books erroneous and the case of Dower differs from all other cases of vouchers for if land discend in tail it is sufficient assets for the feme to
have Dower because the feme is dowable of them for this sufficeth to say that he had assets generally 7. Ed. 2. Dower 184. out of which I conclude that this voucher is not like to other vouchers but this is onely to secure the estate of the Purchasers and then as to the president I answer first it was found there that the vouchee had nothing and also it was never debated for a writ of error was brought of that and nothing done for this was referred to Arbitrement and so I pray that no writ of seisin may be awarded and the Court semed to be of opinion that the judgement may be conditional chiefly Hobert and Iones vehemently but now they said because that judgement is once given they are not to reverse their own judgements and to give another judgement and now it is as if he had no assets but yet that doth not aide an erroneous judgement given before and therefore if the Tenant will be relieved he ought to bring his writ of error but it was said that if this judgement was to be given again this was as it should be because that is all one now as if he had not assets and the judgement stood as it was Potter against Brown NOw the case of Potter and Brown was moved again and Hendon took two exceptions as before first for default of averment and secondly the words are not actionable for it was adjudged in Lanes case if one say of another that he is as arrant a Thief â—s any is in the Goal of Warwick this is not good without averment that there are Thieves in Warwick Goal and here it shall be so for the law doth not suppose that there are Thieves in England and besides here in this case the subsequent words do qualifie the other for the words under the for ought to be of such a thing as is Theft and that is not so in our case Serjeant Richardson to the contrary the last words do not qualifie but rather aggravate them for he gives a reason of his speach and this taking is to be understood with a fellonious intent for the first words do charge him to be a Thief and therefore the last words shall be intended that he took them with a fellonious intent for he did not only charge him in the general but in particular but the Court c. Hobert Hutton and Winch said that the Plantiff shall not have judgement because he failes of averment for he did not say expresly that he is a Thief but as arrant a Thief as any is in England and we are not to enquire after words except they are plain for if one say he was in Warwick Goal for stealing of a Horse adjudged not to be actionable and we may not presume that there are Thiefes in England and so judgement was arrested Adams against Ward INtra Trin. 21. Iac. Rot. 1845. note that it was said in an action upon the case between one Adams and Ward an Attorney that whereas one Hennings sued Adams in an action of debt and Adams retained Ward to be his Attorney and gave him warrant to plead the general issue and Ward suffered the judgement by nihil dicit that this was not any cause of an action except it was by Covin and for that if Adams had not laid in his declaration that this was by Covin he should not have recovered and at another day it was agreed that the Covin was not traversable by Plea but only in evidence at the Bar. Cook against Cook in Dower IN a writ of Dower between Cook and Cook they were at issue and at the day of nisi prius the Defendant pleaded that the demandant had entred and was seised and yet is seised since the last contrivance c. Octabis Sancti Hillarii ultimo quo die continetur usque ad hunc diem c. vicesimum diem Februariâ— which in verity was the day of the nisi prius and it was demurred upon this Plea for two causes the first was because he had not shewed that the Tenant was disseised for otherwise it shall not abate the action and to say that the demandant was seised was not sufficient for though this implies so much that the other was disseised yet here it ought to be expresly alledged but the Court spake nothing to this but Winch thought this to be very good according to Dyer 76. there the entrie is pleaded only and yet good but they resolved that the pleading of the continuance is not good for it is from one Term to another nisi prius justiciarii Venerint c. and he ought to have precisely shewed that but the question now was whether the demandant shall have judgement to have seisin or have apetite Cape only and Iustice Hutton said that it was adjudged in Sir Henry Browns case that if a man pleaded an insufficient Plea after the last continuance there the Plantiff shall have judgement as if the first issue had been tried for him and for this he cited the new book of entries fo 57â— and this may not be a judgement by default for they both appeared and therefore he shall have the same judgement as if the first issue had been tried for him and it was said in this case though the Defendant did demur generally yet this is very good The residue of Trinity Term in the 22. year of King James GOdsel an Attorney brought an action upon the case for words and he laid in his declaration that the Defendant spoke those words among other Master Godsel is a knave for he forged false deeds for which he was imprisoned at York and should have lost his ears and the jury found only these words Godsel is a forger of writings and deserves to lose his ears and Hendon moved in arrest of judgement that the words which are found are not the words in the declaration for the words were there that he forged deeds and it is only found to be writings and it was adjudged in this Court between Brown and Ellis that for saying an Attorney had forged writings no Action will lie for they are too general and besides it doth not at all appertain to him to make writings and so for Nowels Case he is Cooped up for forging of writings and it was adjudged not to be actionable and so to say he is a forger of writings by which he had cozned fatherless Children the words are not actionable because he did not say Deeds and upon this motion and reason the judgement in this case was arrested This case is Entred Hillarie the 21. Jac. Roll. 550. Sir George Trenchard against Peter Hoskins TRenchard brought an Action of Covenant against Peter Hoskins and declared upon an indenture bearing date the 19th of September 44. of Eliz. made between Iohn Hoskins father of the Defendant and the Defendant on the one part and the Plantiff on the other parte by which they bargained and sold certain lands to the
in a double sence shall be taken in the best sence and it shall be intended he spoke Treason in putting of a case or in speaking that after another and yet he offended not and so if he had said that he had written or printed Treason for so do the printers of the King and the Clark of the Crown and so I conceive that the Plantiff shall not have judgement Easter 1. Carol. ANd Serjeant Bawtrey the Term following argued for Serjeant Hitcham that it was plain that the Defendant spoke the words with a full intent to take away his life and to speak Treason is to speak ex corde suo and not that which another spake and now in Easter Term 1. Carol. judgement was given for the Plantiff by Hobert Hutton Harvey and Crook with one accord and they said the limitation of the time is not material for if it was spoke in his infancie c. Brook ought to have shewed that and Crook cited Walgraves case 32. Eliz. in B. R. one said of him that he was not a good subject and adjudged because he spoke them maliciously and he being one of the privie chamber that the action will lie and so 5. Iac. Blanchflower and Alwood thou haste spoke Treason and shall be hanged for that adjudged to be actionable and the 7. Iac. Barford against Prowse thou haste spoken Treason and I will prove that adjudged to be actionable and judgement was given for the Plantiff according Pleadal against Gosmore PLeadal brought an action against Gosmore for the taking of his Colt and fettering him by which the Colt was much the worse and the Defendant justified and shewed that the Colt was taken within such a Mannor which was the Counteses of Hartfords and that she had estrayes within the same Mannor and he justified the taking as Bailiff to her and shewed that he fettered him to the end to keep him from doing harm because he was wild and Serjeant Attoe demurred in law and he said that a man may not fetter an estray because he shall be paid for his keeping and for the hurt that he did and he cited a judgement 8. Iac. in this Court Rot. 1749 between Harvey and Blacklock for the taking of his horse and the fettering him by reason of which he fell into a ditch and was drowned and the other justified the taking as an estray and he fetred him to one of his own horses because he was wild and they both fell into a ditch and were drowned c. and adjudged to be no Plea and the reason which the Lord Cook gave was because he shall be paid for the keeping of him and for his damage and of this opinion was Hobert in the case at the bar but Winch Hutton and Harvey contrary that he may fetter him as he may his own horse and for the case which was alledged they said that there was no proclamation pleaded and so the justification was not good and judgement was entred for the Defendant and this was the last case that ever Iustice Winch spake to in the Court for he being a man not more admired for his profound learning then he was reverenced for his pietie and integritie died upon Friday following being the fourth day of Februarie in the morning as he was making readie to go the Hall Elizabeth Davis against Hawkins THere was a case between Elizabeth Davis and Hawkins in the spiritual Court for defamatorie words and sentence was given against the Plantiff who appealed to the Arches and judgement was given for the Plantiff and 12. d. costs and then came the general pardon and the Defendant did appeal to the deligates and there the second sentence was affirmed and greater costs given and the Defendant did plead the general pardon and they would not allow of that and now it was moved for a prohibition and these points were debated by the Councel and agreed by the Court c. by Hobert and by Harvey that though this suit and sentence is only for to make the partie to denie the words and confess his fault in some publick place yet it is in effect as if it were meerly at the suit of the King for reformation and this is a new invention which they had found out to take away the benefit of the pardon of the King and now to the new costs which were taxed by the deligates they were not taken away by the pardon for though the first offence was yet because this new suit was not only to quash the sentence for the offence but also for the costs ergo these new costs were assigned for the unjust vexation for he was the cause of the removing of that and so they may do for the unjust vexation but not for the first offence The End A perfect Table of the Principal matters contained in this Book A ACcompt against a Bailiff to the damage of 100. l. and judgement to accompt he makes default what judgement shall be given 5. Accompt what is a good Plea in bar therein 9 An action upon the case where a request and the time and place thereof necessary and where not 2 Action for saying the Plantiff is a false for-sworn knave and took a false oath at a Commission 2 3 Action for saying thou art a Thief and hast stolen 20. load of my furzes lieth not 3 10 Action for c. thou hast stolen Hay from Mr. Bells Racks and judgement for the Plantiff 6 Action upon the case upon a promise what is a good consideration a quaint difference taken 7 8 Amendment of a judgement where and within what time good matter 89 Award where good in part and void for the rest 1 Action for words that the Plantiff stole Tobacco out of his Mrs. shop not good without averring that there was Tobacco there 15 Attachment denied upon an affidavit 15 16 Audita Querela where it lieth against one Feoffee and where before an Ouster 20 23 Action upon a promise what consideration is good therein to forbear 22 23 Action upon the case for procuring the Plant to be indicted for stealing Vetches where it lieth and if it ought to be a writ of conspiracie 28 54 An action by an Auditor for saying you are a Cozner and live by Coznage 33 39 40 41 An action for saying the Plantiff loaded a ship with Barley and stole 7. quarters of it by measure it lieth 41 Avowrie for rent granted to the father and that it was arrear to his son good without saying in whose time it was arrear 48 Action upon the case to save the Plantiff harmless for keeping a prisoner good without saying he was lawfully arrested 48 49 In avowrie for rent upon a lease by the father the son claimeth by discent the Plantiff saith the father devised the reversion to another the jury found a devise only of two parts judgement given for the Avowant 49 50 Amendments not allowed upon indictments actions popular or penal Statuts and
if one be named in the venire facias Gregory is returned George there needs not amendment if it be in a Tales otherwise in a principal pannel 66 Action for words he is as arrant a Thief as any is in England the Plantiff needs not aver that there are Thieves in England for the difference is when the words relate to a particular place and when to an intire Realm and so when it is tied to one kinde of fellonie 70 89 Action upon the case where it lieth for a malitious prosecution at the Sessions 73 An action by the Obligee for the Obligor saying he had forged the bond but if he had said to another that he was a forger and had forged false writings no action lies 76 Action upon the case upon a contract in London to Table with the Plantiff at A. in N. and he then and there assumed to pay 4. s. by the week where the action must be brought 78 An action upon a promise against a Parson in consideration that the Plantiff would better his Tithes by Planting hops that he would allow him 40. s. an acre for his charge if that be a good consideration 80 Action upon the case where it lieth against an Attorney for convinous pleading 90 Action by an Attorney for saying he had forged writings and deserved to lose his ears lieth not 90 91 An action against a Sheriff whethâ—r it lies in the Countie where the return of the extent was made or where the land lies 100 Averment against the Sheriffs return where good and where not 100 Amendment where the venire facias habeas Corpus and the pannel agree but the Jury Rolâ— differs 101 Action of the case upon a promise 101 Action for saying the Plantiff stole a ring and had been hanged but for me lieth 102 Action upon a promise where the time and place of the request ought to be expressed 102 103 112 113 Aâ—bitrators amongst other things award interest mony whether good for all or part 114 120 Action by Serjeant Hitcham for saying I doubt not but to prove Sir Robert Hitcham hath spoken Treason 123 124 B A Bail where he is not liable to the judgement until default be in the principal or if the principal die 61 62 C A Commission to 4. or 2. of them and one refuseth the other sit the 4th may be a witness 45 Condition to save harmless he plead in the affirmative he must show how 9 A Coppiholder releaseth to his Companion it is good without admittance 3 A Coppiholder where he may inclose or dig for Marle and where not 8 A Covenant to injoy without the let of the Grantors c. or by their procurement 4 A Custome for a Coppiholder to cut trees at his pleasure is void 1 If Tenant in antient Demesne devise his lands the Devisee shall have fee 1 Covenant See fine Costs where they shall be given against an Administrator 11 A Condition to surrender coppihold he pleads he did it not good because he shewed not when the Court was holden 11 A Commission to seise for recusancie they seise an advowson the Kâ—ng grants to I. S. who presents and is disturbed by the Universitie of Oxford to whom the presentation belongs 11 12 13 Costs upon a Nonsuit at a nisi prius whether assessible by the Court or by the Judge of Assize 16 Common claimed to 600 acres and certain Messuages and lands and that he was disturbed by digging common Borrowes and doth not say he was seised at the timâ— much good matter 16 17 Custome of Merchants in Bills of Exchange varietie of good matter 24 Condition to free the nâ—xt avoidance from incumbrance the Grantors heir presents if that be a breach 25 Custome to have a widdowes estate and the husband is attainted if it holds 27 Condition that I. S. shall levie a fine to the Obligee who sued not a writ of Covenant the Plantiff replies that before c. I. S. had made a feofment of c. whether the Obligee must sue a writ of Covenant 29 30 A Condition contingent where extract by release 30 31 54 55 56 Covenant to make assurance by advice so that it be within Norfolk or Citie of N. a fine is advised not good because not shewed where it should be levied 32 33 Covenant not to alien an advowson without assent the Plantiff saith he had aliened c. good although he had not said by deed 34 Covenant where it raiseth a present use and where not 35 36 37 59 60 Custome touching Marchants and nationall lawes 52 Church shall be repaired by him who hath land there though he be no inhabitant but not lyable for the ornaments thereof 53 Coppiholder what act by him will make forfeiture 62 Covenant by a draper against his apprentice for defrauding him the Defendant pleads the Statute 5. Eliz. and that thereby there ought to be a certificate that his father had 40 s. per annum freehold which was not done here 63 64 If a Coppiholder sels his land to a Lessee of the Mannor it is good 67 Condition in a Will where nothing vesteth till it be performed 69 Costs not to be paid where the Plantiff mistakes his action 69 Covenant brought by an Executor the Defendant pleads giving of an horse in full satisfaction which the Testator accepted 76 A Court of equitie if it doth decree against a maxime in law as benefit of Survivorship a prohibition lieth 79 Covenant that he was seized of a good estate in fee and had good authoritie to sell and that no reversion was in the King c. 91 92 93 Condition where it shall be precedent and where subsequent 105 106 107 108 c. 115 116 c Costs not discharged although the offence be pardoned 125 Commendam See King D IN dept after imparlance alwayes ready is a good Plea 4 Distress gone as to the nomine Paenae if the rent be expired 7 A Declaration where it shall be mended in matter of substance 20 Damages where good in part especially after verdict 27 28 Debt against an Administrator who pleads outlawrie in the intestate no good Plea 33 58 A man soweth land and deviseth to I. S and dies before severance whether the devisee or Executor shall have the Corn 51 A Devise for years if an entrie by him must be pleaded 53 Declaration see new assignment Dower a Tenant pleads a fine levied by her husband and that the wife had not claimed within the Statute 4. H. 7. she replied she brought a writ which abated and this writ now brought was by Journeys accompts 66 Debt for rent must be brought by a privie in estate only where the land lies otherwise of a Privie in estate and contract 69 Debt upon a bond the Plantiff saith he had not paid the money and did not say nor any part thereof good for that must come of the other part to shew 72 Debt upon a bond to perform an award the Defendant
of Tithes and good because they are a spiritual bodie 65 In a Prohibition upon a suit for a Legacie the Executor shewed he had not assets to pay the debts and the spiritual Court would not allow that allegation yet no Prohibition 78 Prohibition to the Marches of wales because a Legatee sued there for 500. l. good before a decree but not after 78 Prohibition see Court of equitie c. 79 Prohibition to the Marches of Wales for requiring an accompt of an Administrator 103 Proces against two Obligors by several precipes and thereupon several Executions whether the writs are well awarded 112 A parco fracto where it lies against the Lord of the Soil and where not except the Cattle come out 80 81 Prohibition to the delegates a pardon not allowed of there 125 Q IN a Quare impedit adjudged that nothing ought to be questioned after induction the spiritual Court there 63 R TEnant in tail sells to I. S. in fee who sells to the heir of Tenant in tail being of full age the father dies if the son be demitted 5 A replevin c. the Defendant saith that all those c. had used to have pasturage in c. when it was not sowed the Prescription is good 7 In a return of Rescous there needeth no addition 10 Replevin for rent issuing out of six acres the avowant must prove that the grantor was seised of 6. acres or more 15 Replevin in the Plantiff claimeth propertie without that the propertie was in the Defendant the Traverse not good yet judgement for the Plantiff because after verdict 26 In Return of an extent by the Sheriff surplusage hurteth not 27 Replevin the Defendant avowed for homage and shewed not how it was due if good 31 Replication although evil where the Plantiff shall have judgement if the Defendants plea be vitious 37 A Riotous quarrel about an arrest between the Sheriffs Bailiffs and the Bailiffs of the Marches of Wales 72 Release an avowrie not good without pleading it by deed 72 A Rent-charge granted and a Covenant if it happen to be behinde then the land to be alwayes open to distress whether this be a distinct covenant or not 74 87 Replevin for rent the Defendants say that the land was parcel of a Chaunterie which came to the King by the Statute wherein the right of others was saved the Plantiff replies that the land is out of the fee of the Defendant no good plea but he might have Traversed the Tenure that at the making of the Statute the land was not holden of him 77 A Record amended where the bargain and sale and deed of uses were by the right name but the writ of entrie was of another name 99 100 Rent granted in fee by Tenant for life and him in remainder in tail levied a fine a good grant 102 Rent-charge whether it be extinct by a fine of the land to the Ter-tenant and a release unto him 109 110 111 121 122 S SCire facias the Defendant pleads a feofment the Plantiff traverses and the jury found a feofment to other uses whether this shall be intended the same feofment which was pleaded 32 Scire facias by an Executor upon a judgement for the Testator the Defendant cannot plead the Testators death between the verdict and judgement but he must bring a writ of error 48 Simonie a grant of a next avoidance for monie the Parson being readie to die is Simonie 63 A Sheriff by force of a Capias utlagatum to inquire what lands c. cannot put the partie out of possession 78 Statute-Merchant if good in regard no day of payment is limited largely and learnedly argued by the Court 82 83 c. Servant taken away See Trespas T TIthes See Prescription Trespass the Defendant saith that I. S. was seised in right of his wife and that she died seised and that he as heir c. the Plantiff replied that she died not seised he ought to have said that she died not sole seised 7 Trespass in Yorkshire Justification in Durham without that that guiltie in Yorkshire good because it is local 7 A Traverse to a presentation where good and where not 13 14 Tenure where it is Traversable and where the seisin 18 Tithes not due of Cattle for the diarie 33. Trespass for Beasts taken in London Justification upon a lease of land in Kent Replied that the Defendant sold them in London no good plea to bring the trial out of Kent 48 Trespass for taking ones servant lieth not upon a private retainer otherwise if it were at the Sessions 51 Tithe giuen by the Pope to the Vicar and the Copie of the Bull only was shewed in evidence not good 70 Tithes cannot be appurtenant to a Grange except the Grange be the Gleab 72 73 Traverse where good and where not 113 U VEnire facias omitting part of the venue if good 34 Variance between the writ and Declaration where good 35 A feofment to the use of A. for life and after to the use of his daughter till B. pay her 100. l. here the daughter hath no remedie for this 100. l. without a promise 71 A Ventre inspiciendo awarded and returned but the Court would not agree that she should be detained from her second husband but attended by divers women till her deliverie 71 Variance between the venire facias and the Sheriffs return no judgement in that case 73 W IN Waste judgement by nihil dicit and upon an inquirie the jury found 8. s. damages what judgement shall be given 5 Wager of Law upon a Bill of Exchange 24 Writs a difference wherein there is an error in the original and where in the judicial writ that is amendable 73 Waste although for a time it is punishable yet after the action may revive 79 86 Writ against husband and wife as an Inheritrix the husband dies if the writ abate 102 Errata PAge 1. line 2. 27. for do read Doa p. 2. l. 4. r. lieu p. 4. l. 2. 22. r. 300. pa. 8. l. 36. r. Hendon and so throughout p. 12. in the Title r. Duncombe against the Vniversitie of Oxford p. 12. l. 14. r. 38. H. 8. cap. 39. p. 14. in the Title r. Sir George Savile against Thornton p. 15. l. 21. r. communication p. 16. l. 12. r. 7. Jac. cap. 5. p. 17. l. 47. r. Maines and l. 17. r. sic and also p. 17. 18. in the Margent r. Trin. p. 21 l. 51. r. 39. Eliz. p. 23. l. 9. r. till p. 26 l. 28 for writ r. Action and for Action r. writ p. 27. l. 12. for he r. they p. 28. l. 34. r. may not p. 29. in the Margent r. Easter p. 29. l. 33. for S. r. N. p. 33. l. ultim r. Moore p. 36. l. 43. r. Titterels p. 45. l. 20. r. demandable p. 50. l. 35. r. Bar p. 51. l. 22. r. a penalty p. 53. l. 16. r. may not p. 54. l. 44. r. Estate p. 57. l. 19. r. in our case p. 58. l 50 r. 16. E. 4. p. 68. l. 5. r. estray p. 71. l. 26. r. 12. Note in p. 72. l. 7. Wolseys case ought to have been printed by it self p. 77. l. 4. r. avoided p. 88. l. 4. r. Finch p. 90. l. 15. r. continuance p. 100. l. 21. for preservation r. perswasion and l. 34. for entire r. entrie p. 109. in the Margent for Trin. r. Mich. p. 112. l. 25. r. thought p. 114. l. 18. for interested r. interest