Law doth admit the oath of the party in his own cause as in Debt the Defendant shall wage his Law Periam That 's an ancient Law but we will not make new Presidents for if such oath be accepted in this Case by the same reason in all cases where is secrecy and no external proof upon which would follow great inconveniencies and although such an Oath hath been before accepted of and allowed here yet the same doth not move us and we see no reason to multiply such Presidents The Declaration is that the Plaintiff was robbed of 10 l. de denariis ipsius querentis and upon the Evidence it appeareth That the Plaintiff was the Receiver of the Lady Rich and had received the said money for the use of the said Lady and exception was taken to it by Shuttleworth but it was not allowed for the Plaintiff is accomptable to the Lady Rich the said money And it was agreed that if he who was robbed after he hath made Hue and Cry doth not farther follow the thieves yet his Action doth remain CX Large 's Case Mich. 29 Eliz. In the King's-Bench 3 Len. 182. THE Case was A. seised of Lands in Fee devised the Lands to his wife until William his son should come to the age of 22 years and then the Remainder of part of the Lands to his two sons A. and John The Remainder of other part of his Lands to two others of his said sons upon condition That if any of his said sons before William should come to the age of 22 years shall go about to make any sale of any part c. he shall for ever lose the Lands and the same shall remain over c. And before his said son William came to the age of 22 years one of the other sons Leased that which to him belonged for 60 years and so from 60 years to 60 years until 240 years ended c. Bois A. and J. are joynt-tenants of the Remainder and he said That the opinion of Audley Lord Chancellor of England is not Law scil where a man deviseth Lands to two and to their heirs they are not joynt-tenants as to the survivor but if one of them dieth the survivor shall not have the whole but the heir of his that dieth shall have the moyety See 30 H. 8. Br. Devise 29. And he said That this Lease although it be for so many years is not a sale intended within the Will and so is not a Ioynture 46 E. 3. One was bounden that he should not alien certain Lands and the Obligor did thereof enfeoff his son and heir apparent the same was held to be no alienation within the Condition of the Obligation Of the other side it was argued The remainder doth not vest presently for it is incertain if it shall vest at all for if William dieth before he cometh to the age of 22 years it was conceived by him that the Remainder shall never vest for the words of the Will are Then the Lands shall remain c. 34 E. 3. Formedon 36. Land is devised to A. for life and if he be disturbed by the heir of the Devisor that then the Land shall remain to D. Here D. hath not any remainder before that A. be disturbed It was farther argued that here is a good Condition and that the Devisee is not utterly restrained from sale but onely untill a certain time scil to the age of William of 22 years And it was said that this Lease is a Covenous Lease being made for 240 years without any Rent reserved As such a Lease made for 100 years or 200 years is Mortmain as well as if it had been an express Feoffment or Alienation But it was said by some Antea 36 37. that here is not any sale at all nor any lease for the Lessor himself hath not any thing in the Land demised As if a man disseiseth a Feme sole and seaseth the Lands and afterwards marrieth the disseisee he shall avoid his own Lease 5 E 3. One was bound that he should not alien such a Manor the Obligor alieneth one Acre parcell of it the Obligation is forfeit See 29 H. 8. Br. Mortgage 36. A. leaseth to a religious house for 100 years and so from 100 years to 100 years untill 800 years be encurred the same is Mortmain Vide Stat. 7 E. 1. Colore termini emere vel vendere And in the principal Case if the Devisee had entred into a Statute to the value of the Land leased by the intent of the Will the same had been a sale and such was the opinion of the whole Court and by the Court the word in perpetuum shall not be referred to the words precedent but unto the words following scil in perpetuum perdat the Lands And if a custome be in the case that the Infant of the age of 15 years may sell his Lands if he make a Lease the same is not warranted by the custome And afterwards it was adjudged by the whole Court that the Lease made as before was a sale within the intent of the Will of the Devisor CXI Brooke 's Case Hill. 29 Eliz. In the King's-Bench APpeal of Burglary was brought against Brooke who was found guilty and before Iudgment given the Plaintiff died And now Egerton moved that Iudgment should be given for the Queen upon that verdict or at least that the Declaration in the Appeal should be in lieu of an Indictment and that the Appealee be thereupon arraigned and put to answer the same For if the Appellant had been Nonsuit or released the Defendant should be arraigned at the suit of the Queen Coke God hath now by the death of the party delivered the Defendant and it is not like where the Plaintiff releaseth for there it is the default of the Act of the party but here it is the Act of God and he held it for a rule That where auterfoits acquit is a good Plea there also auterfoits convict shall be a good Plea And it was holden in Sir Tho. Holcroft's Case Sir Thomas Holcroft's Case That where the party is convicted at the suit of the Queen there the Appeal doth not afterwards lie Wray If the Appellant dieth before Verdict the Defendant shall be arraigned at the suit of the King But if his life hath been once in jeopardy by Verdict he conceived that it shall not again be drawn into danger and some were of opinion that the Defendant should be arraigned at the suit of the Queen upon the whole Record and plead auterfoits acquit and that they said was the surest way CXII Ognel and Paston 's Case 29 Eliz. In the Exchequer .. 1 Cro. 64. CLement Paston was Defendant in an Action of Debt brought against him by George Ognel upon an Escape and the Case was this Francis Woodhouse was bound in a Recognizance to the said Ognel Whereupon Ognel sued forth a Scire facias and upon two Nihils retorned had
the Lessee entred 29 Sept. which is before the Term begins For the words of the Habendum are From the Feast of St. Michael therefore the Feast of St. Michael is no part of the Term and then was the Defendant a Disseisor and the day after the Term began which cannot alter his Estate but that he continueth a Disseisor and then he is not in by force of the said Lease and so no Rent can be due Williams As the Declaration is here the same is not any disseisin for the Plaintiff set forth in his Declaration That the Lessee the Defendant hath occupied the Land demised the whole year and so hath not admitted any Disseisin it being in his election to make it a Disseisin or not Clench Iustice Be it a Disseisin or not or be it that the Defendant entreth or not he is to pay the Rent Gawdy The Lessee is a Disseisor and continueth a Disseisor and yet Debt lieth against him for the Rent by reason of the privity of Contract which see Rysden's Case 24 H. 8. Dyer 5. And so in our Case Quod fuit concessum per totam Curiam and afterwards Iudgment was given for the Plaintiff CXXII Monings and Worley 's Case Hill. 32 Eliz. In the King's-Bench Rot. 561. Error IN Debt upon an Obligation brought by Mary Worley against Monings in the Common-Pleas The Condition was That if Mary Worley the Plaintiff in the said Action doth not depart out of the service of the Defendant without license of the Defendant Monings nor marry her self but with his consent Then if the Defendant shall pay to the said Mary within twenty eight days after demand by her made of Monings at his house at Waldersey 100 l. That then c. And the Defendant in the said Action pleaded That the said Mary the Plaintiff in the said Action 4 Maii 30 Eliz. departed out of his service without licence The Plaintiff Mary by Replication said That 6 Septemb. the same year she departed out of his service with licence and that 4 Octob. after she demanded the said 100 l. at Waldersey aforesaid and he refused to pay it Absque hoc that she departed out of his service 4 Maii 30 Eliz. without licence and the Writ bare date 18. of October next after the demand And it was found for the Plaintiff and Iudgment given for her in the Common-Pleas and now a Writ of Error is brought by Monings Tanfield The Iudgment ought to be reversed for always the Replication in such cases ought to contain sufficient Cause of Action and sufficient breach of the Condition or otherwise the Plaintiff shall not have Iudgment although that the Issue be found for him as 7 E. 4. 31. In trespass for taking of goods of A. and B. A. pleads Not guilty B. justifies the Plaintiff makes Title to the goods by a gift B. traverseth the gift and it is found for him against the Plaintiff A. is found guilty Now although A. be found guilty yet the Plaintiff shall not have judgment against him for it is found that he hath not any Title to the goods As in Debt upon a Bond against A. and B. A. pleads Non est factum B. pleads the release of the Plaintiff and it is found the Deed of A. and that the Plaintiff hath released to B. the Plaintiff shall never have Iudgment for upon the Verdict it appears that he hath not cause of Action And here in the Replication there is not a sufficient breach shewed of the Condition for although that Mary hath not departed from the service of the said Defendant yet the same is not material but the Defendant had twenty eight days after the demand to pay the 100 l. but the same is not so here for the Plaintiff hath prevented the Defendant for the demand is alledged to be 4. Oct. and the Writ bears date 18. Octob. the same year and so the Defendant had not his time allowed him Gawdy The issue is taken upon the departure out of his service so as the demand is not now material and therefore the alledging of the same is surplusage and shall not hurt And the Defendant hath pleaded in Bar the departure of the Plaintiff out of his service upon which he relieth and the demand set forth in the Replication is not to be regarded as to prejudice the Plaintiff As 3 Ma. Dyer 115. Lessee for years covenants that he will not cut any Trees The Lessor assigns the breach of the Covenant in succidendo twenty Oaks The Lessee pleads that he did not cut the twenty Trees nor any of them The Iury found that the Defendant had cut down ten Trees The Plaintiff upon that Verdict shall have Iudgment for the rest is but surplusage and more put in issue than there needs to be Fenner It is not any full Plea to say That the Plaintiff did not depart out of the service of the Defendant 4 Maii for if she departeth at any other time she shall not recover for which cause she ought to have pleaded That she continued in his service untill such a day and then she departed with his licence and the inducement to the traverse ought to be sufficient matter otherwise it is not a full Plea nor the Traverse is not good And if it be surplusage yet if it be not matter against her self it makes the Plea naught which see 1 H. 7. 29. 6 H. 7. 16. Gawdy conceived that the Iudgment was well given for the Defendant was at his liberty to plead the departure of the Plaintiff without his licence or to stand upon the demand And now although he pleads the departure yet the demand is not confessed And afterwards the Iudgment given in the Court of Common-Pleas was affirmed CXXIII Bashpool 's Case 27 Eliz. In the King's-Bench THE Case was this The Father seised of Lands Stiles Rep. 148. is bound in an Obligation and deviseth his Lands to his Wife untill his Son cometh to the age of twenty one years the remainder to the Son in Fee and dieth and no other Lands descend or come to the Son from his Father It was moved by Godfrey That the Heir in that case at his Election might wave the Devise and take by descent or è contra See 9 E. 4. 18. by Needham But Gawdy and Shute Iustices 3 Len. 118. were of opinion That the Son should be adjudged in by Descent Clench contrary CXXIV Bennet and Shortwright 's Case Trin. 30 Eliz. In the King's-Bench THE Case was 1 Cro. 206. The Defendant sued the Plaintiff in the Spiritual Court for Tythes in kind and now the Plaintiff prayed a Prohibition and suggested That they had used in the said Parish time out of mind c. to take the tenth Sheaf in satisfaction of Tythe of Corn c. and in those years in which the Plaintiff had supposed the subtraction of his Tythes he had severed the tenth Sheaf from the nine parts and the Parson would not take
upon the Statute of 5 R. 2. against J. and E. J. died pendant the Writ and E. pleaded in Bar and the Plaintiff did reply and conclude and so was he seised untill the said E. Simul cum dicto J. named in the Writ entred upon the Plaintiff c. But the opinion of the whole Court was clear to the contrary for here in the case at Bar Drake by his several issue which he hath joyned with the Plaintiff upon Not guilty is severed from the other five Defendants and then when they plead in Bar The Plaintiff ought to reply to them without meddling with Drake who upon his several Plea and issue joyned upon it is a stranger to them as if the said five had been the onely Defendants But if he had not replyed to Drake as if Drake had made default or had died after the Writ brought as in the case before cited of 28 E. 4. there he ought to have replyed as it is objected So in an Ejectione firmae of twenty acres The Defendant as to ten acres pleads Not guilty upon which they are at issue and the Plaintiff replies and says as to the other ten acres and so was he possessed untill by the Defendant of the said ten acres he was ejected this is good without speaking of the other ten acres upon which the general issue is joyned And the Court was ready to have given Iudgment for the Plaintiff but they looked upon the Record and seeing that one issue in this Action was to be tryed between the Plaintiff and the said Drake And although the Plaintiff offered to release his damages and the issue joyned and to have Iudgment against the five Defendants who had demurred Vid. antea 41. yet the Court was clear of opinion that no Iudgment should be given upon the said Demurrer untill the said issue was tryed for the Action is an Ejectione firmae in which Case the possession of the land is to be recovered and it may be for any thing that appeareth That Drake who hath pleaded the general issue hath Title to the land c. But if this Action had been an Action of Trespass there in such case Ut supra upon release of damages and the issue joyned the Plaintiff should have Iudgment presently CCLI French 's Case Mich. 26 Eliz. In the King 's Bench. IT was presented before the Coroner That John French was Felo de se and that certain goods of the said John French were in the possession of J. S. and this presentment was certified into the King's Bench upon which Process issued forth against the said J. S. and continued untill he was Outlawed And now came J. S. and cast in his Writ of Error to reverse the said Outlawry and assigned for Error because that in the presentment upon which he was Outlawed there is not any addition given to the said J. S. And at the first it was doubted If upon that presentment Process of Outlawry did lye and Ive one of the chief Clerks of the Crown-Office said to the Court That such Process in such case did lye and that he could shew five hundred precedents to that purpose Another matter was moved upon the Statute of 1 H. 5. 5. of Additions If this Outlawry by the Statute aforesaid ought to be reversed by default of Addition for as much as the said Statute speaks onely of Outlawries upon original Writs in personal Actions Appeals and Indictments But it was agreed by the whole Court That as to this purpose the presentment should be accounted in Law as an Indictment and afterwards the Outlawry against French was reversed CCLII Mich. 26 Eliz. In the King 's Bench. A Lease for thirty years was made by Husband and Wife if they so long should live and if they die c. That the land should remain to A. their son during the term aforesaid And it was holden by Wray Iustice That if the Husband and Wife do die within the term that the son should have the land De novo for thirty years But Gawdy was of opinion that he shall have it for so many years which after their death should be expired CCLIII Cooper 's Case Mich. 26 Eliz. In the King 's Bench. IN an Ejectionefirmae The Case was That the Husband and Wife had right to enter into certain lands in the right of the wife and a Deed of Lease for years is written in the name of the Husband and Wife to one A. for to try the Title and also a Letter of Attorney to B. to enter into the land and to deliver the said Deed of Lease to the said A. in the name of the Husband and Wife 3 Cro. 118. 2 Cro. 617. Yel and as well the Letter of Attorney as the said Deed of Lease are sealed by the said Husband and Wife with their seals and entry and delivery is made accordingly the said A. enters and upon Ejectment brings an Ejectione firmae and the whole matter aforesaid was found by special Verdict and the Plaintiff had Iudgment to recover for the special matter found by Verdict i. e. the Deed of Lease and the Letter of Attorney do maintain the Declaration well enough and here is a Lease made by Husband and Wife according to that the Plaintiff hath declared CCLIV Mich. 29 Eliz. In the King's-Bench IN an Action of Trespass for breaking of the Plaintiff's Close Owen 114. 1 Cro. 876. 2 Cro. 195. 229. Godb. 123. and killing of eighteen Conies there the Defendant as to all the Trespass but to the killing of the Conies pleaded Not guilty and as to the killing of the said Conies He said that the place Where is a Heath in which he hath common of pasture and that he found the Conies eating the grass there and he killed them and carried them away as it was lawfull for him to do Cowper Although Conies be Ferae naturae yet when they are in in-grounds they are reduced to such a property that if they be killed or carried away I shall have an Action of trespass Vid. 43 E. 3. 24. And if a Deer be hunted by the Plaintiff in a Forest and afterwards in hunting it be driven out of the Forest and the Forrester doth follow the chase and the Plaintiff kill the Deer in his own grounds yet the Forrester may enter into the land of the Plaintiff and re-take the Deer 12 H. 8. 9. And although the Defendant hath common in the soil yet he cannot meddle with the wood there nor with the land nor with the grass otherwise than with the feeding of his cattel for he hath but a faint interest And if he who hath the Freehold in the land bringeth an Action of trespass against such a commoner for entring into his land and the Defendant plead Not guilty he cannot give in evidence that he hath common there And it hath been late adjudged That where commoners prescribe Godb. 123. That the Lord hath used to put in
did well lie and he said That this Case is not like unto the Cases which have been put of the other side For there is a great difference betwixt Contracts and this Case for in Contracts upon sale the consideration and the promise and the sale ought to meet together for a Contract is derived from con and trahere which is a drawing together so as in Contracts every thing which is requisite ought to concur and meet together viz. the consideration of the one side and the sale or the promise on the other side But to maintain an Action upon an Assumpsit the same is not requisit for it is sufficient if there be a moving cause or consideration precedent for which cause or consideration the promise was made and such is the common practice at this day For in an Action upon the Case upon a promise The Declaration is laid That the Defendant for and in consider action of 20 l. to him paid posted scil that is to say at a day after super se assumpsit and that is good and yet there the consideration is said to be Executed And he said that the Case in Dyer 10 Eliz. â—72 would prove the Case For there the Case was That the Apprentize of one Hunt was arrested when his Master Hunt was in the Country and one Baker one of the neighbours of Hunt to keep the said Apprentize out of prison became his ball and paid the Debt afterwards Hunt the Master returning out of the Country thanked Baker for his neighbourly kindness to his Apprentize and promised him that he would repay him the sum which he had paid for his servant and Apprentize And afterwards upon that promise Baker brought an Action upon the Case against Hunt and it was adjudged in that Case that the Action would not lie because the consideration was precedent to the promise because it was executed and determined long before But in that Case it was holden by all the Iustices That if Hunt had requested Baker to have been surety or bail and afterwards Hunt had made the promise for the same consideration the same had been good for that the consideration did precede and was at the instance and request of the Defendant Rhodes Iustice agreed with Periam and he said That if one serve me for a year and hath nothing for his service and afterwards at the end of the year I promise him 20 l. for his good and faith full service ended he may have and maintain an Action upon the Case upon the same promise for it is made upon a good consideration but if a servant hath wages given him and his Master ex abundanti doth promise him 10 l. more after his service ended he shall not maintain an Action for that 10 l. upon the said promise for there is not any new cause or consideration preceding the promise which difference was agreed by all the Iustices and afterwards upon good and long advice and consideration had of the principal Case Iudgment was given for the Plaintiff and they much relied upon the Case of Hunt and Baker 10 Eliz. Dyer 272. See the Case there CCLXXXVII Higham 's Case Trin. 25 Eliz. In the Common-Pleas 1 Cro. 15. More 221. 3 Len. 130. IT was found by special Verdict That Thomas Higham was seised of 100 Acres of Lands called Jacks usually occupied with a House and that he let the said House and 40 of the said 100 Acres to J. S. for life and made his Will by which he devised the said House and all his Lands called Jacks then in the occupation of the said J. S. unto his Wife for life and that after the decease of his Wife the remainder thereof and of all his other Lands belonging to Jacks should be to R. his second son c. And by Mead The Wife shall not have by implication the residue of Jacks for she had an express Estate in the House and 40 Acres of Lands and having expressed his Will concerning the same it shall not be extended by implication and he said It had been adjudged between Glover and Tracy That if Lands be devised to one and the heirs Males of his body and if he die without heirs of his body that then the Land shall remain over that the Donee hath but an Estate in tail to the heirs Males of his body Anderson 1 Roll. 839. in the time of Sir Anthony Brown it was holden that if a man seised of two Acres of Lands deviseth one of them to his Wife for life and that J. S. shall have the other Acre after the death of his Wife that the Wife hath not any Estate in the latter Acre It was also moved What thing shall pass to his second son by this Devise and by the Lord Anderson The words usually occupied with it amount to the words the Lands let with it but these 60 Acres are not let with it therefore they shall not pass Windham contrary Although they do not pass by the words occupied with it yet they shall pass by the name of Jacks or belonging to Jacks and afterwards Anderson mutata opinine agred with him A TABLE OF THE Matters in this Book A ASsise 11 55 94 Action upon the Statute of 5 Eliz. for Perjury 18 Abatement of Writs 18 64 Action upon the Statute of 13 E. 1. of Winchester 19 109 212 Actions of Slander 34 74 120 127 146 Assignment of a duty to the Queen for a Debt if good 79 Accompt 91 245 Appeal of Burglary 111 Award where good and where not 130 145 Action not good upon a Lease untill the whole term be expired 137 In Appeal of Robbery one shall not have restitution without fresh suit 183 Attaint of Felony 169 Appeal of Murther 195 Action against an Executor who refused the Executorship 221 Assumpsit upon an agreement to become bound in a Bond for the sum promised 223 Action upon the Statute of 5 Eliz. concerning Perjury 249 C COvenant 5 17 60 153 155 164 237 268 Covenant to levy a Fine 114 Custome 10 140 Costs none upon Non-suit in an Action upon an escape 12 Conversion by the Executors of the goods of the Testator 42 Challenge of Jurors 53 141 Common Recovery 61 89 169 170 275 Costs upon the Statute of 28 H. 8. not allowed 71 Copiholds and Copiholders 97 142 264 Capias ad satisfaciendum sued out and not prosecuted within a year and a day if Scire facias must be sued out 101 Condition in a Lease void if repugnant to the Demise 176 Conveyance of Lands to Feoffees with condition c. 175 Capias ad satisfaciendum sued out after a Release an Audita quaerela lies 215 Case for disturbing him of his Common 229 Case for Toll 240 Case for misusing of the Plaintiff's Horse to which the Defendant pleaded that the Horse was waved within his Manor c. 242 Case upon a promise whereas one became surety and bail to J. S. and afterwards for default of
Inhabitants had used to till and sowe their Lands c. and they had used to be discharged of their Tithes of rakings after that the shocks were carried away And Coke who was of Council with the Parson durst not demurr upon it but traversed the Prescription Wray Chief Iustice The want of Meadow and Pasture in the Parish is the great matter here and there is not any mischief here as if they had surmised that for want of Meadow and Pasture they had eaten their Meadows with their Cattel And it was held by the whole Court that it was a good Prescription XXXI The Queen and Partridge 's Case Trin. 30 Eliz. In the King's-Bench 1 Cro. 125. IN a Quo Warranto brought against Partridge It was holden by all the Iustices That a man might prescribe to hold a Leet oftner than twice in a year and at other days than are set forth in the Statute of Magna Charta Cap. 35. because the said Statute is in the affirmative But Popham Attorney General said That one cannot prescribe against a Statute And it was moved by him If a general Pardon be granted with general Exception in it he which will have advantage of it ought to plead it and shew that he is not any person excepted for otherwise the Iudges cannot allow him the benefit of it because they do not know if he be a person excepted or not But if there be special persons excepted by name and no others excepted but so many persons there he need not to plead it for the Court may discern J. D. from J. S. 8 E. 4. 7. vide 26 H. 8. 7. If a man commits Felony and also Treason and afterwards comes a general pardon for Felony but Treason is excepted and the party is arraigned for Felony By Coke he shall have the benefit of the pardon Popham contrary For he is disabled by the Treason See Coke's Case 13 Eliz. Plowd 401. he pleaded to the Felony the general pardon by Act of Parliament and added that neither himself nor the said offence was excepted And it was agreed by the whole Court That in a Quo Warranto it is not sufficient for the Defendant to say That such a Subject hath lawfull interest to hold Leets without making title to himself for the Writ is Quo Warranto he claims them And afterwards Iudgment was given for the Queen XXXII Woodward and Bugg 's Case Trin. 30 Eliz. In the King's-Bench WOodward libelled in the Spiritual Court against Bugg and Nelson for Tithes of certain Lands called Christian-Hill 1 Cro. 188. Owen Rep. 103. 2 Roll. 63. 3 Len. 257. The Defendant sued a Prohibition and surmised That one Prettiman was seised of the said Land and in consideration of 5 l. by him paid to the said Parson it was agreed betwixt them That the said Prettiman and his assigns should be discharged of the Tithes of the said Lands during his life And afterwards the said Prettiman leased the same to the Defendants upon which a Prohibition was granted and it was holden that the party need not to make proof thereof within six months for it is not within the Statute because a composition with the Parson But now a consultation was granted in the same Cause because the agreement is shewed but no need of it the which cannot be any discharge but if it had been for a time i. Unica vice it had been good but contrary being for life Also there is not any express Grant of Tithes but onely a Covenant and agreement that he should be discharged upon which he may have an Action but no Prohibition It was said on the other side That although without Deed Tithes cannot pass in point of interest yet by way of discharge they well may Coke It was holden betwixt Pendleton and Green That upon such words of Covenant and agreement the party should hold the Lands discharged of Tithes which was denied For if the Grantee of a Rent-charge will grant it to the Lands without Deed it is not good And there was of late a Case betwixt Westbed and Pepper where it was agreed betwixt the Parson and one of his Parish that for twenty shillings Rent per ann the Parishioner should be discharged of Tithes for twenty years if he lived so long and it was holden that no Prohibition did lie thereupon a Fortiori where the Estate is for life Gawdy In a Case of grant of Tithes for life a Deed is requisite but here it is but a Covenant for money See 21 H. 6. 43. Wray If it had been for years it had been good but here it is not any Contract but onely a discharge for life which cannot be during his life without Deed And afterwards the Record was read which was Concordatum agreatum fuit between the two parties pro omnibus decimis during the time that one should be Parson and the other occupier of the said Lands that in consideration of 5 l. the said Prettiman and his assigns should hold the said Lands discharged of Tithes Wray The same is not a Contract but Promise for he doth not grant any Tithes c. XXXIII Devered and Ratcliff 's Case Pasch 32 Eliz. In the King's-Bench IN Debt the Plaintiff declared 1 Cro. 185. That he himself had brought an Action in London against one A. and had Iudgment to remove and a Capias was awarded and issued forth to take the said A. in execution upon which Non est inventus was returned upon which one of the sureties of A. being in prison in London under the custody of the Defendant upon a Plaint against him was detained in Prison for the said Debt so recovered against A. Secundum consuetudinem Civitatis praedict prout per record ejusdem Curiae apparet and after the Defendant suffered the surety to escape upon which there was a demurr The matter was If the said surety was a Prisoner in Law for the said Debt as surety of A. for in the Declaration it is not expresly laid that there was such a custom in London ut supra but onely Secundum consuetudinem c. And secondly there were two sureties of A. and the one of them onely is detained in execution Also the custome as it is here laid is not reasonable For a Scire facias ought to issue out against the sureties and they ought not to be taken or detained in execution presently For the condition of the Recognizance of sureties is That they bring in the Defendant if he be condemned or to pray the Debt and now by this custome the party who is surety being taken cannot plead the release of the Plaintiff or the death of the Defendant in his discharge as he might upon a Scire facias which was agreed per Curiam and adjudged accordingly XXXIV Clark and Green 's Case Trin. 30 Eliz. In the King's-Bench AN Action upon the Case was brought for these words He liveth by Charming Sorcery and Witchcraft It was moved
that the words were not actionable for the words might be construed as if the life of the party were preserved by that means And it was holden 30 Eliz. in the Case betwixt Smith and Morrice that the word Witch is not actionable And therefore if a man be sued in the Spiritual Court for defamation for calling one Witch a Prohibition doth not lie It hath been holden that upon these words He went to destroy a child in a woman's belly were actionable and yet it is not Felony but a great discredit and these words Thou usest Witchcraft are not actionable And afterwards in the principal Case Iudgment was given Quod nihil capiat per Billam And by Gawdy It might be that the Plaintiff had the forfeiture of those who are convicted of offences and so liveth thereby XXXV Harford and Gardiner 's Case Trin. 30 Eliz. In the King's-Bench IN an Action upon the Case The Plaintiff declared that the Defendant in consideration that the Father of the Plaintiff had imployed his service about the business of the Testator of the Defendant to the great profit of the Testator and in consideration of love and affection that the Testator bore to the Plaintiff promised to give unto him 100 l. Curia Love is not a consideration upon which an Action can be grounded 3 Cro. 756. 1 Len. 94. the like of friendship Wray If the Plaintiff declares That the Defendant in consideration that he was indebted unto the Plaintiff in divers summs of money and promised to pay him 100 l. it is not good for the incertainty Also the consideration here was past and executed before the promise made and nothing is done by the Son. And afterwards Iudgment was given against the Plaintiff XXXVI Clark 's Case Mich. 31 Eliz. In the Exchequer Post 89. BRidget Clark was indebted to Archdell by Obligation and afterwards she delivered to one Andrews certain Hogsheads of Wine to satisfie the said Archdell de debito praedicto afterwards the Obligation of Clark was assigned to the Queen for the Debt of Archdel and if the property of the said Hogsheads of Wine were altered by the delivery of them to Andrews before the assignment was the question Egerton Solicitor General The property is not altred for the Bailor might have an Action of Account against Andrews before he hath delivered them over according to the Bailment but if he hath delivered them over the same is a good bar in Account But if one be accountable to me upon a Bailment and afterwards I require him to bail the goods over to A. the same is not in bar of the Account but is a good Plea in discharge of Account before Auditors for that is matter after the Bailment not upon the Bailment If Goods be bailed to bail over upon a consideration precedent on the part of him to whom they ought to be bailed the Bailor cannot countermand it otherwise it is where it is voluntary and without consideration but where it is in consideration of a Debt not countermandable contrary if to satisfie the Debt of another Manwood chief Baron Where the Debtor of the King is sufficient there a Debt due to him ought not to be assigned to the King but onely where the Debt is doubtfull and that was the ancient course but now at this day many seem and are accounted to be rich who are not and therefore omnis ratio tentanda est to recover the Debts of the King. But as to the Case before us Briget is Executrix to her Husband who was indebted to Archdel and she delivered the Goods to Andrews to satisfie Archdel and all that before the Assignment And I conceive that the property of the said Goods is altered for as the case is here Andrews was Surety for Clark and had a Counter-Bond of Clark to save him harmless If I borrow Money and deliver Plate for the security of it the general property is in me yet the Bailee hath a special interest in it till the Money is paid If Goods be delivered to A. to pay to B. A. may sell them An Executor hath Goods of the Testator and he with his own Monies pays the Debts of the Testator he shall retain the Goods and the property is altered And here in our Case Andrews might by virtue of the Bailment sell the Goods and with the Money pay the said Archdel And afterwards Iudgment was given That the property of the Goods was altered XXXVII Norris Case 31 Eliz. In the Exchequer IN an Information upon Intrusion against Norris and others concerning Folly John Park the Defendants pleaded in Bar a descent It was holden clearly by the Court That against the Queen a Descent is no Plea nor any Title against the Queen because nullum tempus occurrit Regi neither shall Lachess be imputed to her for the possessions of the Queen are large and it is not reason that she should be bound or tyed to look to her affairs concerning her possessions or to incur any damage in default thereof for she is to intend and manage the publick affairs of the Kingdom and State. It was also held by the Court That in pleading of a Lease for life or Feoffment the party needs not to shew the place where the Lease or Feoffment was made Popham the Queens Attorny took Exception to the Bar to the Information That whereas in the Information Title is made to the Queen and concludes prout patet per plurima Recorda memoranda Scaccarii the Defendants have not Traversed it by saying Absque hoc quod habetur aliquod tale Recordum To which it was said by Harris and Savil Serjeants That if a special Record had been alledged in certainty then we ought to have taken such Traverse but here it being in the generalty we ought not to traverse at all Manwood Because the Information is general i. ut patet per plurima Recorda so the Traverse ought to be also Another Exception was taken to the Bar because in the Information the Title of the Queen is set forth and the Defendants plead That long before the Intrusion A. was seised in Fee and enfeoffed B. who died seised c. where it might be that the Title of A. was mean betwixt the Title of the Queen and the Intrusion whereas by Manwood and Popham they ought to have said Diu antequam the Queen was seised A. was seised c. Savil and Harris If which should so plead we should confess that the Queen once had a Title and that is not true which Manwood denied for by such Plea nothing is confessed And it was said by some That where in the Bar the Title of the Queen is confessed and avoided there the Defendant shall say Diu antequam the Queen had any thing c. otherwise not And it was holden by all That in such case a Feoffment might be an induction unto a Traverse but not a Descent And by Manwood it is a general Rule as
Postea 82 83. IN Ejectione firmae It was found by special Verdict That Mr. Graunt was seised of the Lands c. and by his Will devised the same to Joan his Wife for life and farther he willed That when Richard his brother shall come to the age of 25 years he should have the Lands to him and the heirs of his body lawfully begotten Mr. Graunt died having issue of his body who is his heir Richard before he had attained the age of 25 years levied a Fine of the said Lands with Proclamations in the life and during the seisin of Joan to A. Sic ut partes ad finem nihil habuerunt and if this Fine should bind the Estate-tail was the Question And the Iustices cited the case of the Lord Zouch which was adjudged M. 29 and 30 Eliz. Tenant in tail discontinues to E. and afterwards levieth a Fine to B. although the partes ad finem nihil habuerunt yet the Fine shall bind the entail But the Serjeants at Bar argued That there is a great difference betwixt the Case cited and the Case at Bar for in that Case the said Fine was pleaded in Bar but here the Fine is not pleaded but found by special Verdict To which it was said by the Court that the same was not any difference For the Fine by the Statute is not any matter of Estoppel or conclusion but by the Statute doth bind and extinguish the Estate-tail and the right of it and Fines are as effectual to bind the right of the entail when they are found by especial Verdict as when they are pleaded in Bar And by Periam Collateral Warranty found by Verdict is of as great force as if it were pleaded in Bar And afterwards Iudgment was given That the Estate-tail by the Fine was utterly destroyed and extinct XLIX Jay 's Case Trin. 29 Eliz. In the Common-Pleas JAY brought an Action of Debt before the Mayor of Shrewsbury c. and declared upon an Obligation which was upon condition to pay money at London and issue was there joined upon the payment And it was moved how this issue should be tried viz. 4 Inst 205. If it may be removed by Certiorare into the Chancery and thence by Mittimus into the Common-Pleas and from thence sent into London to be tried and when it is tried to be remanded back to Shrewsbury to have Iudgment See 21 H. 7. 33. Vpon voucher in the County Palatine of Lancaster the Law is such in matters real for real actions cannot be sued but in the said County Palatine but in personal matters it is otherwise for such actions may be sued elsewhere at the pleasure of the party And thereunto agreed the whole Court and although such matters have been removed before yet the same were without motion to the Court or opposition of the other party and so not to be accounted Precedents See 3 H. 4. 46. abridg'd by Brook Cause de remover Plea 41. Where he saith That a Foreign Plea pleaded in London in Debt goes to the jurisdiction but upon a Foreign Voucher in a Plea real the Plea shall be removed in Bank by the Statute to try the Warranty and afterward shall be remanded L. Sands and Scagnard 's Case Trin. 29 Eliz. In the Common Pleas. IN an Action upon the Case The Plaintiff declared that he was possessed of certain Chattels which came to the Defendant by Trover The Defendant pleaded That heretofore the Plaintiff brought Debt against the now Defendant and demanded certain moneys and declared that the Defendant bought of him the same goods whereof the Action is now brought for the summ then in demand to which the then Defendant waged his Law and had his Law by which Nihil Capiat per breve c. was entred And demanded Iudgment if c. And by Windham and Rodes Iustices The same is no bar in this Action for the waging of the Law and the doing of it utterly disproves the Contract supposed by the Declaration in the said Action of Debt and then the Plaintiff is not bound by the supposal of it but is at large to bring this Action and so Iudgment was given for the Plaintiff LI. Spittle and Davie 's Case Trin. 29 Eliz. In the Common-Pleas Owen Rep. 8 55. IN a Replevin the Case was That one Turk was seised of certain Lands in Fee and by his Will devised parcell of his said Lands to his eldest Son in tail and the residue of his Lands to his younger Son in Fee Provided that neither of my said Sons shall sell or make Leases of the Lands given or bequeathed unto them by this my Will or doe any Act with any of the said Lands to the hindrance of their children or mine by any devise or means before they come to the age of 30 years and if any of my Sons doe so then my other Son shall have the portion of my Lands so devised to his Brother the eldest Son before his age of 30 years leased the Lands to him devised ut supra for years against the intent of the said Proviso The younger Son entred 2 Cro. 398. and he leased the same Land for years before his age of 30 years Vpon which the eldest Son did re-enter and the opinion of the Court was that here is a Limitation and not a Condition and here the re-entry of the eldest Son was holden unlawfull for this Proviso did not extend but to the immediate Estate devised expresly to them and not to any new Estate which did arise upon the limitation and when the younger Son enters upon the eldest Son by the said Limitation he shall hold his Estate discharged of the Proviso or any limitation contained in it LII Martin Van Henbeck 's Case Trin. 30 Eliz. In the Exchequer AN Information was exhibited in the Exchequer against Martin Van Henbeck Merchant-stranger upon the Statute of 18 H. 6. Cap. 17. concerning the gaging of vessels of Wine and shewed That the Defendant had sold to such a one so many pipes of Wine and that none of them did contain as they ought 126. gallons and although they were so defective yet the Defendant had not defalked the price c. according to the want of measure for which he had forfeited to the Queen all the value of all the Wine so defective Exception was taken to the Information because there is not set down how much in every pipe was wanting as one or two gallons c. To as a ratable defalcation might be made according to the proportion of the want of measure But if the Informer had set forth in his Information that no defalcation was at all such general allegation of want of measure without other certainty had been good And the Case was cited 32 E. 4. 40. Lysle's Case Where the plea wants certainty or where he pleads that he was ready to shew to the Council of the Plaintiff his discharge of an Annuity c. and doth not shew
ratione calumniae praedict ac praedict jurament tenebat proficua inde provenientia diutius quam aliter si praesens Triatio habita fuisset sine aliqua calumnia tenere potuisset See the Statute of 5 Eliz. against Perjury the words are grieved letted or molested c. LIV. George ap Rice 's Case Mich. 30 Eliz. In the King's-Bench George ap Rice Tenant in Tail after possibility of Issue extinct assigned his Estate to one A. against whom he in the Reversion brought a Quid juris clamat and it was adjudged that he should Attorn for although Tenant in Tail after possibility of Issue extinct himself is not compellable to attorn yet his Assignee shall attorn for the privilege is knit to the person who is in truth Tenant in Tail after possibility of Issue which cannot be the Assignee for by the Assignment the privity and the privilege are destroyed 1 Len. 290.291 And where the Defendant in a Quid juris clamat is adjudged to attorn Distress infinite shall issue forth against him to compell him to attorn and if he when he appears doth refuse to attorn he shall be imprisoned until he doth attorn And this Iudgment That the Assignee of Tenant in Tail after possibility should attorn being given in a Court in Wales was afterwards affirmed in a Writ of Error brought upon it in the King 's Bench. LV. Lucas and Picrost 's Case 30 Eliz. In the Common Pleas. THE Case was 3 Len. 137. That an Assise of Novel disseisin was brought in the County of Northumberland of two Acres of Land and as to one Acre the Defendant pleaded a Plea tryable in a Foreign County upon which the Issue was adjourned into the Common Pleas and from thence into the Foreign County where by Nisi prius it was found for the Plaintiff And now Snag Serjeant prayed Iudgment for the Plaintiff and cited the Book of 16 H. 7. 12. where Assise is adjourned in Bank for difficulty of the Verdict they there may give Iudgment But the whole Court is of contrary Opinion for here is another Acre the Title of which is to be tryed before the Iustices of the Assise before the Tryal of which no Iudgment shall be given for the Acre for which the Title is found And the Assise is properly depending before the Iustices of the Assise before whom the Plaintiff may discontinue his Assise And it is not like unto the Case of 6 Ass 4. 8 Ass 15. where in an Assise a Release dated in a Foreign County is pleaded which was denyed for which cause the Assise was adjourned in Bank and there found by Inquest not the Deed of the Plaintiff now the Plaintiff if he will release his damages shall have Iudgment of the Freehold presently But in our Case Postea 199. 14 H. 7. part 118. parcel of the Lands put in view doth remain not tryed which the Plaintiff cannot release as he may the damages And therefore the Court awarded That the Verdict should be sent back to the Iustices of the Assise LVI Povye 's Case Mich. 30 Eliz. In communi Banco POvy an Attorny of the King's Bench brought an Action of Trespass there against the Warden of the Fleet who came into the Common Pleas and demanded the Advice of the Court because he is an Officer of this Court and therefore ought not to be impleaded elsewhere But it was said by the Court 3 Cro. 180. That because that the Plaintiff hath also his Privilege in the King's Bench as well as the Defendant hath here this equality of Privilege shall render the parties at liberty and he shall have the benefit of the Privilege who first begins Suit and so the Warden of the Fleet was advised to answer LVII Inchley and Robinson 's Case Hill. 29 Eliz. In the Common Pleas. IN an Ejectione Firmae it was found by special Verdict Owen Rep. 88. 3 Len. 165 That King E. 6. was seised of the Manor and hundred of Fremmington and by his Letters Patents granted the same to Barnard in Fee rendering 130 l. per annum and also to hold by Homage and Fealty and afterwards Queen Mary reciting the said Grant by E. 6. and the Reservation upon it granted to Gartrude Marchioness of Exeter the Manor of Fremmington and the said Rents and Services and also the Manor of Camfield and other Lands and tenements to be holden by the twentieth part of a Knight's Fee Gertrude so seised devised to the Lord Montjoy the Manor of Fremmington the Manor of Camfield c. and also bequeathed divers sums of money to be levied of the premisses and they farther found That the said Rent of 230 l. was the full third part of the yearly value of all the Lands and Tenements of the Devisor The Question was If by those words of the Devise Of the Manor of Fremmington the Rent and Services of the Manor did pass i. the Rent and the Homage and the Fealty reserved the Grant of King E. 6. of the Manor and Hundred of Fremmington and if the said Rent and Services are issuing out of the Manor for if the Rent doth not pass then the same is descended to the Heir of the Marchioness and then being found the full and third part of the value the King and the Heir is fully answered and satisfied and then the Inheritance of the residue discharged and settled in the Devisee And if the Rent doth not pass then is the Heir of the Marchioness entitled by the Statute to a third part of the whole Shuttleworth Serjeant If the Marquess had devised by express words the said Rent and Services they could not have passed for as to the Services they are entire things as Homage and Fealty and they cannot pass by Devise in case where Partition is to follow for such things cannot receive any Partition or Division therefore they are not divisible for the Statute doth enable the Proprietor or Owner to devise two parts of his Inheritances in three parts to be divided i. as Catalla Felonum cannot be devised for the reason aforesaid which was granted by the whole Court. And as to the Devise he argued much upon the grounds of Devises and put a ground put by Fineax 15 H. 7. 12. where every Will ought to be construed and taken according as the words do import or as it may be intended or implyed by the words what the meaning of the Testator was out of the words of the Will. See thereof a good Case 19 H. 8. 8. and 9. and he relied much upon the Case of Bret and Rigden Plow 342. So he said in this case because the intent of the Devisor doth not appear upon the words of the Will that this Rent should pass it shall not pass for there is not any mention made of any Rent in all the Will. Fenner contrary and he argued much upon the favorable construction which the Law gives to Wills 14 H. 3. Reversion for Remainder
cited a Case adjudged upon a like Act scil the Statute of 35 H. 8. by which it was enacted That the Lady Katharine Wife of the said King should be as a Feme sole and that she might make Leases c. In that case the Leases should not bind the King or his successours for the said Act did not extend to make the Leases good but onely against Coverture And it was observed by Clench Iustice that in the Act of Parliament now in question It is expresly provided that the Rent reserved by the Marchioness should go to the lady Bourcher but no provision made that it should go to the King and therefore it is not reason that the King should be bounden But another matter arising upon the pleading the point did not fall in judgment LXVIII Backhouse and Spencer 's Case Trin. 29 Eliz. In the King's-Bench SAmuel Backhouse brought a Writ of Annuity against Alderman Spencer of London 1 Roll. 228. and declared upon a Grant of an Annuity for term of years and depending the Action the term expired And it was the clear opinion of the whole Court that the Plaintiff could not have Iudgment for the Iudgment in this Writ is Quod querens recuperet annuitatem praedictam and now there is not any Annuity in being See 34 H. 6. 20. 6 Co. Higgin's Case 1 Inst 285. a. 14 H. 7. 31. 19 H. 7. 16. LXIX Mich. 29 Eliz. In the Common-Pleas IN a Writ of Partitione facienda The Defendant prayeth Aid and the Plaintiff counterpleads the Aid upon which counterplea they are at issue and it is found for the Plaintiff It was adjudged that same is peremptory to the Defendant and the Iudgment shall be Non quod respondeat sed quod Partitio fiat c. LXX Rolston and Chamber 's Case 1 Leon. pa. 282. Mich. 29 Eliz. In the Common-Pleas ROlston brought an Action of Trespass upon the Statute of 8 H. 6. of forcible entry against Chambers and upon issue joined it was found for the Plaintiff and damages assessed by the Iury and costs of suit also and costs also de incremento adjudged and all were trebled in the Iudgment with this perclose Quae quidem damna in toto se attingunt ad c. and all by the name of damages and it was objected against this Iudgment That where damages are trebled no costs shall be given as in Wast c. But afterwards it was clearly agreed that not onely the costs assessed by the Iury but that which was also de incremento adjudged should be trebled and so were all the Presidents as it was affirmed by all the Prothonotaries and so are many Books scil 19 H. 6. 32. 14 H. 6. 13. 22 H. 6. 57. 12 E. 4. 1. Book of Entries 334. and Iudgment was given accordingly It was also agreed that the party so convicted of the force at the suit of the party should be fined notwithstanding that he was fined before upon an Indictment for the same LXXI Wren and Bulman 's Case Mich. 29 Eliz. In the Common-Pleas 1 Len. 282. Rolston and Chambers WRen brought an Action upon the Statute of 1 and 2 of Phil. Ma. for unlawfull impounding of Distresses against Bulman and was Nonsuit and it was moved by Shuttleworth Serjeant If the Defendant should have costs upon the Statute of 23 H. 8. and it was adjudged that he should not and that appears clearly by the words of the Statute c. For this Action is not conceived upon any such matter which is comprised within the Statute And also the Statute upon which this Action is conceived was made after the said Statute of 23 H. 8. which gives costs and therefore the Statute of 23 H. 8. and the remedy thereof cannot extend to any Action given by 1 and 2 Phil. Ma. And so Rhodes Iustice said it was adjudged 8 Elizabeth LXXII Mery and Lewes 's Case Mich. 29 Eliz. In the Common-Pleas MEry brought an Action upon the Case against W. Lewes 3 Len. 91. Executor of David Lewes late Master of St. Katharine juxta London and declared That the said David in consideration that Quaedam pars domus fratrum sororum Sanctae Katharin fuit vitiosa in decasu The said Mery ad requisitionem dicti Davidis repararet eandem assumed to pay to the said Mery all such moneys that the said Mery expenderet in such reparations And farther declared That eandem partem Domus praedict reparavit c. and upon Non assumpsit it was found for the Plaintiff In arrest of Iudgment it was objected That the count was too general Quaedam pars domus For the Plaintiff ought to have shewed specially what part of the house in certain as Hall Chamber or other Rooms but the same was not allowed Another objection was because it is set forth in the consideration that the Plaintiff Ad requisitionem dict Davidis repararet and the Plaintiff declared Quod reparavit generally without saying 2 Cro. 404. ad requisitionem dict Davidis reparavit and that is not the reparation intended in the Declaration scil Reparatio ad requisitionem but a reparation of his own head and at his pleasure and for that Case judgment was reversed LXXIII Brasier 's Case Mich. 29 Eliz. In the Common-Pleas NOTE It was agreed in the Case by all the Iustices and by the Prothonotaries That if the Disseisor levy a Fine and the Disseisee in the preservation of his right against the said Fine enter his claim in the Record of the Foot of the Fine that the same is not any such claim as shall avoid the Statute of 4 H. 7. See for this Case of the Lord Zouch in Plowden's Commentaries LXXIV Ralph Morris 's Case Trin. 29 Eliz. In the King's-Bench RAlph Morris and his Wife libelled in the Spiritual Court for that the Defendant called the Wife of one of the Plaintiffs Veneficam Sortilegam Incantatricem Daemoniorum and now came the Defendant into this Court and surmised that the matter of the Libell is determinable by the Common Law and thereupon prayed a Prohibition and it was holden by the Court That although the offence of Witchery be in some cases triable by Law yet the same doth not take away the jurisdiction of the Spiritual Court and therefore to call one a Witch generally an Action will not lie at Law as it hath been adjudged But to say that he hath bewitched such a one an Action will lie at Law. Wray Such Witchcraft as is made Felony by any Statute is not punishable in the Ecclesiastical Court but in case of slander of such Witchcraft upon such slanderous words of Witchcraft which is not Felony the Ecclesiastical Court shall punish the same and afterwards in the principal Case a Consultation was awarded LXXV Bardens and Withington 's Case Trin. 29 Eliz. In the Common-Pleas A. Is bound in a Statute to B. and sows the Land. B. extends the Lands which are delivered unto him
in execution it was adjudged in this Case that the Conusee should have the Corn sowed The same Law in case of a Recognizance LXXVI Smalman and Lane 's Case Trin. 29 Eliz. In the Common-Pleas THE Case was a Capias upon an original Process was delivered to the new Sheriff of Warwick against Lane at the suit of Smalman And the Sheriff informed the Court that before that the Process was directed to him That the said Lane was taken in Execution by the old Sheriff upon a judgment given against him in the King's-Bench and that the said old Sheriff had imprisoned the said Lane by force of the Execution in his own house and there he remained and prayed the advice of the Court what retorn he should make upon that matter because the said Lane was never in his possession for all the other prisoners which were in the Gaol and in the ordinary Prisons were delivered to him and the old Sheriff would not bring Lane to the place where the other Prisoners were delivered And it was the opinion of all the Iustices That by the Law the old Sheriff ought to deliver the body of him who is in his custody by view to the new Sheriff and such Prisoners ought to be brought unto him to view and from that time the Law shall adjudge such Prisoners to be in the possession of the new Sheriff and not before for he is not bound to go to them not being in the ordinary Prison of the County Anderson The new Sheriff may retorn That the said Lane is in Execution in custodia sua and so charge himself For although the Office of the old Sheriff be determined yet it is not an escape so long as the party be in custodia and not at large Periam contrary It is an escape in the old Sheriff as soon as his authority is determined the Prisoner not delivered See now C. 3. part 71. Wesby's Case LXXVII Megot and Broughton and Davie 's Case Mich. 29 Eliz. In the King's-Bench 1 Cro. 105. IN an Action upon the Case upon Assumpsit it was found by Nisi prius for the Plaintiff and afterwards before the day in Bank one of the Defendants died and after Iudgment given the other Defendant brought a Writ of Error in the same Court where the Iudgment was given and assigned an Error in fact scil the death of one of the Defendants pendant the Writ Roll 798. b. 3 Len. 96. Vide 2 E. 3. 21. It was said that the Case is not like the Case of an Action of Trespass for every Trespass done by many is several by each of them but every Assumpsit is joint and not several Another point was moved If the Court could reverse their own Iudgement Quaere LXXVIII Farrington and Fleetwood 's Case Trin. 29 Eliz. In the Exchequer THE Case upon the Statute of 31 H. 8. of Monasteries was this 3 Len. 164 165. ante 333. Plus The Abbat and Convent of A. c. 29 H. 8. made a Lease of certain Lands for three lives to begin after the death of one F. if they so long live and afterwards 30 H. 8 within a year before the dissolution they make another Lease to Fleetwood If the first Lease in the life of the said F. be such an Estate and Interest as by virtue of the said Statute shall make the second Lease void was the Question for it was not in esse but a future Interest Manwood All the reason that hath been made for the second Lease is because the first Lease is but a possibility for F. by possibility may survive all the said three and so it shall never take effect But notwithstanding be it a possibility or otherwise it is such a thing which may be granted or forfeited and that during the life of F. And note the words of the Statute If any Abbat c. within one year next before the first day of this present Parliament hath made or hereafter shall make any Lease or Grant for years life or lives of any Manors c. whereof and in which any Estate or Interest for life or years at the time of the making of any such Lease or Grant then had his being or continuance and hereafter shall have his being or continuance and then was not determined c. shall be void c. And here is an Interest and that not determined at the time of the making of the Lease to Fleetwood And of such Opinion were all the Barons and divers other Iustices and therefore a Decree was made against the Lease c. LXXIX Beaumont 's Case Trin. 29 Eliz. In the Exchequer NOte it was holden by all the Barons in the Exchequer Owen Rep. 46. That a Duty which is not naturally a Debt but by circumstances onely as Debt upon a Bond for performance of Covenants or to save harmless may be assigned over to the Queen for a Debt but in such case a present Extent shall not issue but a Scire facias shall issue forth to know if the party hath any thing to plead against such Assignment LXXX Goddard 's Case Trin. 29 Eliz. In the Exchequer IT was moved in the Case of Goddard concerning the Manor of Staple in Hampshire 11 Leon. 8. If the Tenant of the King of Lands holden in Capite be disseised and the Disseisor aliens the Lands and afterwards the Disseisee doth re-enter Manwood said That the Land shall not be charged with a Fine for alienation without licence because the Title of the Alienee grew under the wrong of the Disseisor but the person of the Disseisor shall be charged with such Fine Tenant of the King in Capite makes a Lease for life the Lessee for life makes a Feoffment in Fee without licence the Lessor re-entreth neither his person nor the Land shall be charged But if my Feoffee upon Condition maketh a Feoffment without license and I re-enter for the Condition broken now my Land shall be charged with the Fine upon Alienation for the Feoffee was in by me by good and lawfull Title because he had power to make a Feoffment over although subject to the Condition So if Tenant in tail or the Husband seised in the Right of his Wife make a Feoffment in Fee and afterwards the Land is recontinued the Fine accruing for Alienation without licence shall bind the Land And if Tenant for life loseth issues and dieth the Lands shall be charged with the same LXXXI The Lord of Northampton and Lord St. John 's Case Trin. 29 Eliz. In the Exchequer 2 Roll. 195. Co. 12. 1 2. Co. 4. 95. Dyer 262. THE Lord of Northampton had by ancient Letters Patents bona catalla felonum fugitivorum within the Isle of Ely and one dwelling within the Island was attainted of Felony to whom another was indebted by Obligation and the money by the Condition of the Bond was to be paid at a Manor of the Lord St. John's who within his Manor
also of Statutes We cannot deny but that we have Lands of the Conusor and of the Gift of the Conusor our Ancestor whose Heir we are who was indebted to the Queen and yet we are not within this Statute Was or shall be indebted shall not be intended after the Gift made for if he first convey his Land and afterwards becomes indebted the same is not within the Statute and where a mischief is to be remedied by a Statute the remedy in exposition of the Statute is to be applied according as the mischief doth require Shall be is to be intended of future Debts after the Statute and in our case the Father was not Receivor or other Officer to the Queen And if this Statute should be so construed the Father might take 10000 l. for the Marriage of his son and assurance of Lands unto him and then if he will acknowledge a Debt to the Queen he should defeat the whole which should be a very great mischief The words are By Gift after the Debt acknowledged to the Queen And he cited the Case 19 Eliz. Plow 191. betwixt Ludford and Gretton upon the Statute of 18 H. 6. the words of which are That whatsoever Warrant hereafter to the Chancellor of England addressed the day of the delivery of the same it be entred of Record in the Chancery and that the Chancellour make Letters Patents upon the same Warrants bearing date the day of the said delivery in the Chancery and not before and all Letters Patents made to the contrary shall be void And the Case was That a Warrant was directed to the Chancellour for the making of Letters Patents and delivered to him before the making of them but the day of the delivery was not entred of Record c. And it was holden that notwithstanding that the Letters Patents were good for the mischief at the Common Law intended to be reformed by that Act was not the post-dating of the Letters Patents but the ante-dating and therefore that ought to be principally taken into consideration which mischief being understood the words of the said Statute are to be applied to it ipsae etenim Leges cupiunt ut jure regantur i. with an Equity according to the Mischief and not always according to the precise words and in that case it is sufficient if the Letters Patents bear date after and not before the delivery of the Warrant and that was the matter intended to be reformed Also as our Case here is we are not within this Statute for the words are Of the Gift of his Ancestour but here the Son hath not the Lands of the Gift of his Ancestour but rather by the Statute of Vses and so he is in the Post and not in the Per by his Ancestour for here the Fine was levied to divers persons unto the Vses aforesaid and here the Gift was not a mere gratuity to his Son but in consideration that he should marry the Daughter of Sir Edw. Huddleston and also the Father was the King's Debtor after the Gift and not before Popham Attorney-General to the contrary The letter of the Statute is with us for he comes in of the Gift of his Ancestour who was indebted to the Queen and although that the Gift was by way of use yet the precedents in the Common-Pleas and other Courts are That he may declare of the Feoffment of such a one although it was by way of use and he said If A. be bound to enfeoff B. of such Lands if he maketh a Feoffment to the use of B. and his Heirs he hath well enough performed the Condition and if the Case should not be within the Statute then should that branch of the Statute be idle and to no purpose For if the Ancestour be seised and becometh indebted to the Queen and after makes a conveyance ut supra the same is provided for by the first branch of the Statute For the Land is liable to the Recognizance or Obligation made to the King and that they shall be as effectual as a Statute Staple and reason requires that the son who comes in by mere gratuity of his Ancestour should be charged And it was a common practice before the making of that Statute That the King's Officers would convey their Lands to their children and then become the King's Debtors for the remedy of which mischief the Statute was made and the Statute of 27 Eliz. doth not respect the Heir because he is Heir but as a purchasor onely and that upon good consideration Coke If any fraud can be found in our Case then without doubt we should be within the Statute but being upon good consideration it is out of the Statute nor was there any purpose in the father when he made the said Conveyance to become the King's Debtor or Officer to him for if there were then he is within the Statute also the Gift had been a mere gratuity c. And afterwards at another day the Case was moved by Coke and he said That here is not any Gift because it was in consideration of Marriage and then no gift for it is an old Proverb What is freer than gift Egerton The father giveth to his son and heir the same is within the Statute and yet here is consideration scil of blood Coke contrary Where the father giveth to his younger son or to his daughter which is not his heir and of that opinion was Manwood chief Baron And afterwards as Coke reported the son and his Lands were discharged CXV Amner and Luddington 's Case Mich. 26 Eliz. In the King's-Bench Error 3 Len. 89. 8 Co. 96. ERror was brought in the King's-Bench by Amner against Luddington Mich. 25 and 26 Eliz. Rot. 495. The Case was That one Weldon was seised and leased unto Pierpoint for ninety nine years who devised the same by his Will in this manner I bequeath to my Wife the Lease of my House during her life and after her death I will that it go amongst my Children unpreferred Pierpoint died his Wife entred and was possessed virtute legationis praedict and took Husband one Fulshurst against whom one Beswick recovered in an Action of Debt 140 l. upon which Recovery issued forth a Fieri facias and upon that a Venditioni Exponas upon which the Sheriff sold the said term so devised to one Reynolds Fulshurst died his Executor brought Error to reverse the Iudgment given against the Testator at the Suit of Beswick the Wife did re-enter and sold the Land and died Alice an unpreferred Daughter of Pierpoint did enter and upon that matter found by special Verdict in the Common-Pleas the entry of Alice was adjudged lawfull upon which Iudgment Error was brought in the King's-Bench And it was argued upon the words of the Devise because here the House is not devised but the Lease it self scil all his interest in the thing devised And it is not like unto the Case betwixt Welchden and Elkington 20 Eliz. Plow 519.
upon the floor there so as vi ponderis it fell down To which the Defendant hath said That the walls were ruinous in occultis partibus and doth not answer to the surcharging scil Absque hoc that he did surcharge it Clark Baron It is a general Rule That every material thing alledged in the pleading ought to be traversed confessed and avoided which the Defendant hath not done here but he would excuse himself through the default of another and answer nothing to that with which he himself is charged And afterwards Iudgment was given in the Court of Exchequer for the Plaintiff Whereupon afterwards the Defendant brought a Writ of Error in the Exchequer Chamber where the Case was argued again But there the Iudgment given in the Court of Exchequer was affirmed See this Case reported short in Popham's Reports lately published CXVII Linacre and Rhode 's Case Trin. 31 Eliz. In the Common Pleas. Co. Rep. Blomfield's Case 3 Len. 230. THE Case was That Linacre was bound in a Statute and his body taken in Execution and the Sheriff voluntarily set him at large and afterwards the Conusee sued Execution of the Lands of the Conusor who thereupon brought an Audita Querela It was moved by Yelverton Serjeant That by that voluntary discharge of him by the Sheriff the whole Execution was discharged for the Execution is intire See 15 E. 4. 5. Where the Conusee in a Statute Merchant hath the body and lands of the Conusor in Execution and afterwards the Conusee surrendreth his Estate which he hath by Extent now the Execution of his body is discharged and the Conusor shall have a Scire facias or Audita Querela to discharge his body So if three Conusors be in Execution and the Conusee doth discharge one of them the same is a discharge of them all and in the principal Case the body is the principal and therefore the discharge of the principal part of the Execution is the discharge of the whole Hammon Where the Conusee himself dischargeth the Execution in part it is good for the whole but where discharged by the Sheriff Nihil operatur Anderson If the Conusor dieth in Execution yet the Conusee shall have Execution against his Heir of his land for the having of the body in Execution is not any satisfaction to the party for his body is but a pledge untill the money be paid and there is no reason that the act of the Sheriff should discharge the Execution Windham to the same intent And if the Conusee sueth Execution and hath the body of the Conusor in Execution this day he may the next day sue Execution of the lands and the next day after of the goods and if the Conusee doth discharge the body the whole Execution is discharged and it is true That if A. recovereth against B. in an Action of Debt and B. is taken by a Capias ad satisfaciendum and afterwards the Sheriff permitteth B. voluntarily to escape here B. is discharged although it be not the act of the party for there the Plaintiff had a full Execution which is not here for in Case of Execution upon a Statute-Merchant the Execution by the body is not the full Execution and therefore although the Sheriff hath discharged the body yet the Conusee may have Execution of the goods and lands but not of the body and afterwards Iudgment was given against the Plaintiff That the Audita Querela did not lie and that Execution might be sued of the goods and lands but not of the body CXVIII Webbe and Mainard 's Case Trin. 32 Eliz. In the Common Pleas. IN Ejectione firmae The Case was Walter Goldsmith seised of certain lands made a Feoffment to the use of himself for life and after to the use of John his eldest son in Fee Proviso That after his death his said son shall pay unto his younger son William 30 l. by 3 l. per ann at the Feast of St. Michael untill the entire sum be paid and if he fail of payment then to the use of the said William and his heirs Will. Goldsmith the Feoffor dieth the money is not paid but afterwards the said younger son makes an Acquittance and thereby acknowledgeth the Receipt of the said money according to the Proviso John dieth Now if the younger son may enter And first if the younger son be concluded by that Acquittance to say that the 30 l. was not paid And if he be not concluded Then if because that the words are but words of limitation the younger brother hath Title of Entry and then if this Entry be bound by the descent from John to his Heir or if John by continuance of the possession after the breach of the Proviso be a Dissesor or not were Questions propounded to the Court which the Court took time to consider of yet it was then said That the use was settled in William and the possession executed unto it but not such a possession upon which an Assise or Trespass lieth CXIX Willis and Jermine 's Case Hill. 31 Eliz. In the King's Bench. Rot. 647. IN Ejectione firmae It was found by special Verdict 1 Cro. 167. Roll Tit. Estate 830. That the Dean and Chapter of Exeter Leased the Land where c. to Jermine rendering Rent to be paid at their Chapter-house at Exeter and for default of payment that such Lease shall be void and cease and that the said Jermine conveyed his interest to the Defendant and afterward the Rent was demanded at the Chapter-house but not paid and afterwards The Dean and Chapter by the name of Dean and Chapter of St. Mary of Exeter where they are incorporate by the name of Dean and Chapter of St. Mary in Exeter make an Indenture of Lease for forty years in their Chapter-house to Willis and thereunto put their seal in the Chapter-house and made a Letter of Attorney to another to enter and to make Livery of the said Deed which was done accordingly it was moved by Harris Serjeant That this Lease made in manner c. is not good for the Corporation is misnamed i. of Exeter for in Exeter but the Court disallowed that Exception for there is not any material variance and so it was said it hath been ruled And he said that for another cause the Lease is not good for when the Dean and Chapter in their Chapter-house make this Indenture of Lease Davis Rep. 42. and set their Chapter-seal to it It was their Deed presently without other delivery and then Jermine being in possession at the time of the putting of the seal to it they were out of possession thereof and so the new Lease void because they were not in possession at the time of the making of it for no delivery is necessary to the Deed of a Corporation but the date of the sealing of it makes it a perfect Deed and then the delivery of the same by the Attorney is of no effect Wiat to the
of it is taken away by the act of the Plaintiff himself CLIV. Heal 's Case Pasch 30 Eliz. In the King's-Bench HEal a Bencher of the Inner Temple being at the Bar Wiat another Apprentice at Law informed the Court against the said Heal and shewed That where his Client had obtained a Iudgment in the King's-Bench The said Heal being of Council with the other part did advise his Client to bring the party who had obtained the Iudgment into the Chancery and he procured an Order against him Co. 3 Inst 12. 123 124. 4 Inst 86 91. by which he was cast into Prison Which matter Heal could not excuse but submitted himself to the Court saying That he had seen a precedent which induced him so to doe and that was the Case of one Prince Princes Case where a Iudgment given in this Court was drawn into question and examined in the Chancery But the Iustices said That the same was an ill precedent and against the Statute of 4 H. 4. which is That no Iudgment be undone but by Error or Attaint CLV Gray and Constable 's Case Pasch 30 Eliz. In the King's-Bench SIR Thomas Gray covenanted with the Lady Constable That where he is possessed of a Lease for twenty one years of certain Lands That he will assure convey and assign the said Lease to one Nevil excepting the two last years of the said twenty one years and he said Sir Tho. Gray was bound in a Bond to perform the Covenants of the said Indenture upon which Indenture the Lady brought Debt against the said Sir Tho. Gray who pleaded the Conditions and the performance of them The Plaintiff replicando said That the Defendant non assuravit conveiavit transposuit Anglice set over the said Lease upon which they were at issue And at the day of the Nisi Prius it was moved by Cooper and Beaumont That the Issue was misjoined for the Defendant pleads as the Covenant it self is That he had assured conveyed and assigned the Lease and so pleaded the performance of other Covenants c. The Plaintiff assigned the breach in this Quod non assuravit conveiavit transposuit Anglice set over which word transposuit is not in the Covenant nor in the pleading of the performance thereof and the English word set over although it sounds the same with assigning doth not help the matter and if the Latin word doth not agree with the matter non refert of the English word although in the Plea there be this word Anglice set over Note the Covenant was ut supra The Plaintiff assigned the breach Quod non assuravit conveiavit transposuit Anglice set over c. And the Defendant pleaded Quod assuravit conveiavit transposuit Anglice set over c. And the Court was clear of opinion That the Issue for that cause was not well joined And afterwards by the assent of the parties it was amended CLVI Doghead 's Case Pasch 30 Eliz. In the King's-Bench Hutt 35. Hob. 250. Antea 110. 1 Cro. 177. And. 116. AN Information was upon the Statute of 27 Eliz. cap. 4. by the party grieved which Statute gives unto the King one moyety of the value and the other moyety to the party grieved The Plaintiff was nonsuit It was holden by the Court that he shall not pay costs and damages by the Statute of 18 Eliz. for the Statute as the Title of the same doth imply is to redress Disorders in common Informers and so is the Preamble and the words also of the clause of costs and damages are Every such Informer and so by Ive Secondary of the Crown-Office An Action given to the party grieved is not a popular Action and the Statute of 18 Eliz. extends onely to popular Actions CLVII Cony and Chomley 's Case Pasch 30 Eliz. In the King's-Bench IN an Ejectione Firmae after Verdict in Arrest of Iudgment it was moved That the Plaintiff had declared in Ejectione Firmae Quod cum Robertus Diggon per Indenturam suam gerent dat 20 Maii 1 Cro. 773. 890. dimisit c. where he ought to have said iisdem die anno For although the Indenture bear date ut supra yet it may be that it was delivered at another day and then it doth begin to be a Demise And if in an Action upon the Case upon Assumpsit to pay money upon request although it be found for the Plaintiff yet if no day be put in the Declaration when the request was made but onely licet saepius requisitus in case where a request ought to be made there the Plaintiff shall not have Iudgment as it hath been oftentimes adjudged Quod omnes Justiciarii concesserunt But yet afterwards notwithstanding the Objection aforesaid Iudgment was given for the Plaintiff CLVIII Marsh and Jones 's Case Mich. 29 and 30 Eliz. In the Common-Pleas IN a Replevin the Case upon the Evidence was 3 Len. 114. That before the Statute of Quia Emptores terrarum a man made a Feoffment in Fee to hold of him by the service solvendi post quamlibet vacationem sive alienationem the value of the annual profits of the Lands And it was holden by the Court That the value shall be intended such a value as was the value at the time of the Feoffment made and not as it is improved by succession of time CLIX. Willoughby 's Case Mich. 29 and 30 Eliz. In the King's-Bench WIlliam Willoughby and two other were indicted 1 Cro. 3 Len. 216. That whereas the Parson of the Church of D. and all his predecessours have used to have Common in such a place the said Willoughby c. vi armis c. had inclosed it and the Inclosure was upon their own Lands It was moved That upon this matter they ought not to be indicted but the party grieved is put to his Action as where a Presentment is made of a Disseisin See 27 Ass 20. And it was the Case of one Morden Morden's Case 1 Cro. Madox Case 29 Eliz. upon the stopping of a Way upon his own Land And it was said That if it should be upon the Lands of another it were not material for it is but a hindrance from the taking of Common which cannot be vi armis Also it was said That the Indictment is recorded and certified as found before the Iustices of Assise and Gaol-delivery and they cannot take such Presentments And although the said Iustices of Assise and Gaol-delivery were in rei veritate also Iustices of the Peace yet the Indictment being recorded and certified to be taken before them in quality of Iustices of the Peace will not help it for the Court shall not respect any other authority but that which appeareth upon Record and therefore for the causes aforesaid they were discharged by the Court. CLX Collet and Robston 's Case Error Hill. 30 Eliz. In the King's-Bench 3 Len. 149. COllet and Andrews recovered in a
Tho. Henage Hungate's Case the Queen leased for years unto Hungate provided that he should not do Waste Waste is done the Queen granted the Reversion to Sir Tho. Henage Office is found the Grantee entred and his entry was adjudged lawfull and that the Queen should have the mean profits from the time of the Waste done untill the time of the Grant. Some say Sir Walter Mildmay's Case that that case was not adjudged but compounded And he vouched Sir Walter Mildmay's Case The Lord Sturton held Lands of the Queen in Knights-service and was attainted of Felony by which the Lands escheated to the Queen who granted those Lands and it was holden that the Queen should have the mean profits betwixt the time of the Felony committed and the Grant. And after in the principal Case Iudgment was given for the Plaintiff scil the Patentee of the Queen against the Lessee who cast in a Writ of Error and by his Council prayed That the Writ of Error be not broken open untill the Iudgment be entred Manwood The Iudgment hath reference and relation unto the first day of this Term and therefore do not doubt of that CLXXIX Sted 's Case Mich. 32 Eliz. In the Exchequer 3 Len. 259. STed of Great Melton in the County of Oxford was assessed to 7 s. for Fifteens and upon refusal to pay it the Collectors distrained the Beasts of Sted and sold them Sted brought Trespass thereupon in the King's-Bench and the Collector exhibited his Bill into this Court against Sted who shewed by his Council That the Statute of 29 Eliz. which enacted this Fifteen provideth That the said Fifteen shall be levyed of the movable Goods and Chattels and other things usual to such Fifteens and Tenths to be contributary and chargeable and shewed farther that the Cattel distrained were tempore districtionis upon the Gleab Land of a Parsonage presentative which he had in Lease which Gleab Land is not chargeable usually to Fifteens granted by the Temporalty nor the Chattels upon it But it was the Opinion of the whole Court Although that the Parson himself payeth Tenths to the King yet the Lay-Farmor shall pay Fifteens and his Cattel are distrainable for it even upon the Gleab Land of the Parsonage and therefore it was adjudged that in the principal Case the Distress and Sale were good and lawfull CLXXX The Dean and Chapter of Winsors Case Mich. 32 Eliz. In the Exchequer 3 Len. 258. IN this Case it was moved If one hath a Rectory impropriate and by the Statute of 26 H. 8. cap. 3. is to pay an annual Rent for the same in the name of a Tenth and by that is discharged of Tenths and first fruits If he shall have the Privilege of the Exchequer for he is to pay the same sum yearly And the Barons were of Opinion that he should not for so every one who is to pay any Tenths or first fruits should draw another who sueth him into the Exchequer and so all Controversies concerning Tithes and Parsonages should be drawn hither which should be a great prejudice to the Spiritual Courts But Egerton Conier's Case Solicitor vouched a Case scil Conier's Case where the King gave a Parsonage to a Priory in Frankalmoign and the Tithes thereof being withdrawn the Prior impleaded him who withdrew his Tithes in the Exchequer and in that Case it was holden that the Prior should have the Privilege for the King is in danger to lose his Patronage or rather his Foundership if the Rectory be evicted Gent Baron The Tenant of the King in chief or he who pays first fruits or he who holds of the Queen in Fee-Farm shall not have in such respect the Privilege here Quaere CLXXXI Cony and Beveridge 's Case Mich. 30 Eliz. In the Common Pleas. 3 Len. 216. IN Debt upon a Bond the Case was That the Plaintiff leased unto the Defendant certain Lands lying in the County of Cambridge rendring Rent and afterwards the Defendant became bounden to the Plaintiff in a Bond for payment of the said Rent upon which Bond the Plaintiff brought an Action of Debt in the County of Northampton to which the Defendant pleaded payment of the Rent without shewing the place of payment and upon payment they were at issue and found for the Plaintiff by Nisi prius in the County of Northampton In Arrest of Iudgment it was moved that the issue was mis-tryed for here the payment of the Rent being pleaded without shewing the place of payment it shall be intended that the Rent was paid upon the Land which is in the County of Cambridge See 44 E. 3. 42. Anderson was of opinion that no Iudgment should be given for the cause aforesaid Rhodes and Windham contrary for it doth not appear that the issue is mis-tried because that no place of payment is pleaded and it might be for any thing is shewed that the Rent was paid in the County of Northampton CLXXXII Berry and Goodman 's Case Trin. 30 Eliz. In the King's-Bench IN an Ejectione Firmae upon a special Verdict the point was Ow. 95 96. One intruded upon the possession of the Queen into Lands in Kisgrave in Suffolk and during this Intrusion the Queen granted these Lands to A. B. by her Letters Patents and the Patentee before any Entry made in the said Land granted the same over Some held that the Grant was good for the Intruder had gained nothing against the Queen and by the Grant of the Queen and the assignment over nothing accrued to him and where a man hath possession of Lands his continuance therein cannot gain to him any interest or increase his Estate without some other act done of later time If the Guardian do continue in possession after the full age of the Heir he is not a Disseisor nor hath any greater Estate in the Lands and upon the Book of 21 E. 3. 2. this Case was collected The Tenant of the King dieth his Heir within age a stranger intrudes the Heir at full age sueth his Livery out of the King's hands the Intruder dieth in possession the same descent shall not take away Entry Coke contrary The Intruder cannot be Tenant at sufferance for at first he enters by wrong and none can be Tenant at sufferance but he who comes in by Title And it is clear That the Intruder by his first Entry doth not gain any Estate in possession upon which he can have an Action of Trespass but after the Grant of the Queen he hath presently Fee by wrong 8 H. 4. 129. A stranger enters upon the King to which he hath right in the right of the Ward yet the Freehold doth remain in the Heir And he said that if A. levyeth a Fine to B. sur Conusans de droit c. now the Conusee hath possession in Law but not in fact and if before the entry of the Conusee W. entreth and dieth seised he hath no remedy for he had not possession
indictment and prayed his Clergy c. and demanded Iudgment If the Plaintiff should have this appeal The Plaintiff Replicando said by protestation Nul tiel record and for plea did demur in Law. Dalton for the Plaintiff took Exception to the plea for the conclusion of it viz. Iudgment if appeal where it ought to be Iudgment if he shall be again put to answer And he took a difference where a matter is pleaded against the Plaintiff to which the Plaintiff is party As where a man pleads a Fine levied by the Plaintiff himself there he shall conclude Iudgment if action but where the Fine is pleaded levied by the Ancestors of the Plaintiff there he shall plead Iudgment if against such Fine c. Vide 9 H. 7. 19. At the common Law before the Statute of 3 H. 7. such conviction at the suit of the King did discharge the party convicted from farther trouble but if the indictment upon which he was arraigned be insufficient then it is not any plea. And here the indictment is insufficient for by the Statute of Articuli super Chartas cap. 3. the Coroner of the County together with the Coroner of the King's Houshold shall do the Office which belongs to it and send the roll to which Office two Coroners are requisite but here in the taking of this inquisition there was but one person although two capacities id est Coroner of the County and also Coroner of the Verge and so the indictment was taken Coram non Judice See the Statute of the Star-Chamber which is That the Chancellor c. calling to them one Bishop and one temporal Lord of the King's Council c. If the Chancellor be a Bishop yet another Bishop ought to be called c. If I devise that my lands shall be sold by two Bishops and J. S. hath two Bishopricks yet his sale is not sufficient Egerton contrary Although here is but one person yet there are two Coroners Quando duo jura concurrunt in una persona aequum est ac si essent in diversis At the common Law before the Statute De Articulis super Chartas The Coroner of the Verge by himself might enquire of Murther but because the Kings Court oftentimes removed into another County by reason whereof no enquiry could be made for the remedying thereof that Statute was made which is in the affirmative and doth not abridge the common Law before and therefore it shall have a reasonable construction See the Statute of West 1. cap. 10 By which it is enacted that sufficient men shall be chosen Coroners of the most loyal and the most sage Knights this Statute shall not be taken Stricto sensu that none shall be chosen Coroners but Knights but the Statute requires that sufficient persons shall be chosen As to the Statute of 3 H. 7. It is to be known That the common Law before acquitted was a good Plea and the cause was for the great regard that the common Law had to the life of a man In which case a great mischief as the Statute recites did ensue that to save the appeal of the party they would not arraign the party within the year and day after the murther within which time the offender did compound with the party interessed and so after the year expired all the matter concerning the prosecution at the King's suit was put in oblivion wherefore it was enacted That such offender shall be within the year arraigned at the suit of the King and if the party be acquitted at the Kings suit within the year and day That the Iustices before whom c. should not set the party at large but to remain in prison or to let him to bail untill the year and the day be past and within the said year and day the wife or next heir to the party slain may take their appeal against the party so acquitted or attainted the said acquittal or attainder notwithstanding and he said that these words person attainted did not extend to person convicted for they are two distinct conditions in Law for attainder procures corruption of bloud but the same is not wrought by conviction and every Treason imports in it self Felony but yet notwithstanding they are distinct Offences See 22 E. 4. Coron 44. where it was ordered by all the Iustices of England That none should be arraigned of the death of a man at the suit of the King within the year and day so as the suit of the party be saved And the Iustices counselled all men of Law so to do and that the same be executed as a Law without alteration upon which rule of the Iustices arose an inconvenience for after that order of the Iustices was known The offender would practise with the party to whom the appeal by the Law belonged to obtain from him a release for some sum of money and then when the year and day passed the heinousness of the murther was out of memory This mischief being espied was the occasion of the making of the Statute of 3 H. 7. But the said Statute doth not meet with our Case but our Case is at the common Law for this Statute extends onely unto persons attainted but a person convicted is not touched by it and therefore being out of the words of the Statute it shall be also out of the meaning of it for being a penal Law it shall be taken by equity as all Statutes which give attaint shall be Stricti juris and shall not be taken by equity It hath been objected that the Statute de Frangentibus prisonam 4 E. 1. hath been taken by equity the same is not so for it is not any penal Law but the same mitigates the rigor of the common Law for before that Statute the breaking of the prison was Felony in every case but now it is not Felony but where the party was committed to prison for Felony c. CXCVI. 21 Eliz. In the Common Pleas. IN a Formedon of a Manor Dyer 291. 3 Len. 92. the Tenant pleaded Ioynt-tenancy by Fine with J. S. The Demandant did aver the Tenant sole Tenant as the Writ doth suppose and upon that issue was taken and found for the Demandant upon which a Writ of Error was brought and Error assigned in this That whereupon Ioynt-tenancy pleaded by Fine the Writ ought to abate without any averment by the Demandant against it the averment hath been received against the Law c. Southcote At the common Law If the Tenant had pleaded Ioynt-tenancy by Deed the Writ should abate without any averment but that was remedied by 34 E. 1. but Ioynt-tenancy by Fine did remain as it was at the common Law for he hath punishment enough in that by that plea if it be false he hath by way of conclusion given the moyety of the Land in demand to him with whom he hath pleaded Ioynt-tenancy and the Law doth not intend that he would so slightly depart with his land
Hundred and that the one side of the said Lane is within the Parish of S. and the other side within the said Parish of D. and that the Robbery was done in the side of the said Lane which was in the Parish of S. and prayed the opinion of the Court upon that matter And the Court was clear of opinion That notwithstanding that Exception the Plaintiff should have Iudgment for here is the right Hundred which ought to be charged and the mistaking of the Parish is not to any purpose But then it was moved on the part of the Plaintiff that for as much as the Verdict aforesaid was special by reason of the doubt which the Iurors conceived upon the mistaking of the Parish in the Plaintiff's Declaration That the charges of the Iurors should be indifferently born by both parties as the course is in cases of special Verdicts but the whole Court was clear against that and commanded that the Plaintiff alone should pay the said charges for the matter here found specially is not any doubt but out of all question for it is clear that the Action is well brought for as much as the Hundred is charged the mistaking of the Parish shall not hurt CCXIII. Hellyard 's Case Trin. 29 Eliz. In the Common-Pleas A Habeas Corpus was to the Warden of the Fleet to bring the body of one Hellyard who retorned the Writ That the said Hellyard was committed to the Fleet Per mandatum Francisci Walsingham Militis unius principalium Secretariorum Dominae Reginae c. And because the Warden did not shew in his Retorn for what cause the said Hellyard was committed the Court gave him day to amend his Retorn or otherwise the prisoner should be delivered CCXIV. Mich. 30 Eliz. In the Common-Pleas UPon a Recovery in a Writ of Entry Sur disseisin of two acres of land Habere facias seisinam was awarded The Sheriff as to one acre retorned Habere feci as to the other tarde And the Retorn was shewed to the Court and all the Iustices but Periam held that the Sheriff should be amerced for that Retorn contrary and repugnant in it self But by Periam it may be That the acre of which no seisin is had was so far distant from the other acre whereof seisin was that the Sheriff for want of time could not make execution of both being so remote the one from the other To which it was answered That if the truth of the Case was such then might the Sheriff make execution in one acre in the name of both acres And if upon a Capias ad satisfaciend against two the Sheriff doth retorn as to one Cepi and to the other tarde he shall be amerced for those several Retorns cannot stand together CCXV Edgar and Crispe 's Case Mich. 30 Eliz. In the Common Pleas. Edgar recovered against Crispe in Debt and afterwards released to Crispe and afterwards notwithstanding the release Edgar sued for a Capias ad satisfaciend against Crispe and pursued the same untill Crispe was outlawed and it was the opinion of Anderson cheif Iustice That Crispe should have an Audita Querela notwithstanding the Outlawry and if the Audita Querela passeth with Crispe the Outlawry also should be avoided CCXVI Frankwell 's Case Trin. 30 Eliz. In the King 's Bench. IN Trespass for carrying away of Tithes the Case was That Frankwell Parson of the Church of D. was accused in forma Juris before the high Commissioners who pleaded that the same cause and crime was prosecuted against him in the Arches and prayed that he might not be doubly vexed for one and the same offence and notwithstanding that he was deprived and another Clerk presented to the same Church by the Patron and was admitted instituted and inducted and upon entry brought Trespass against the former Incumbent And note the manner of the Deprivation as it was found by Verdict That the Bishop of London with the assent of the other Commissioners gave sentence of Deprivation against him and it was shewed That the high Commissioners had not power by 1 Eliz. to give sentence of any thing which is dependant in another Court For it was not the intent of the said Act to take away the jurisdiction of the other Ecclesiastical Courts for then it is in vain to have such Courts It was also moved because the pleading is That the Bishop of London ex assensu of the other Commissioners gave sentence the same is a void sentence for it ought to be the sentence of all the Commissioners for they shall have equal authority And to this purpose he cited the Case 29 H. 8. Dyer 40. where a Lease is made of Lands whereof the Dean and Chapter are seised in common per nomen Decani ex assensu consensu totius Capitul but it was holden a void Lease for the Chapter ought to be party to such Lease contrary where the Lease is made of the Land which is the proper and peculiar Inheritance of the Dean But that Exception was not allowed for the form of Entries in all cases hath always been so Coke posito That the Commissioners ought not to proceed in this Case yet because they have so done the same ought not to be examined here for the Iudges here ought to think that this Deprivation was duly maâ—e for cuique credend in sua arte which Wrey granted And it was said by him That the Court was created for two causes 1 For the expedition of the causes depending in the spiritual Courts Co. 4. Inst 326 327. 2 To give to such Iudges authority to punish offences in more high degrees for before they could not but onely excommunicate but now they may imprison and if the party had Libelled against him in the spiritual Court of the Arches it is no reason but that the party for his own expedition and for to procure due punishment against the offender may send the cause into the high Court and after Iudgment was given according to the Deprivation And afterwards Error was brought thereupon and the Error assigned upon the matter in Law whether the said Deprivation was lawfull or not Coke I remember the reason of the Iudgment given by the Court was That admitting that the sentence of the high Commissioners was erroneous yet it shall bind untill it be reversed by appeal Fenner If the party grieved might be restored by appeal I agree that such sentence should bind untill it were reversed but in our Case no appeal lieth from the high Commissioners wherefore we ought to be helped here or otherwise we are without remedy Coke If the Delegates give sentence no appeal lieth and yet the party grieved shall not be helped here Fenner 16 Eliz. One Foxe was deprived the last day of the Parliament for incontinency which offence was pardoned by the same Parliament and that sentence of Deprivation was holden void Anderson In your Case the offence it self was pardoned and discharged Also it is
60 years and afterwards enfeoffed Oxenbridge to the use of the said Cheney and his wife for their lives with divers remainders over and it was adjudged in the Court of Wards that by the Feoffment the term was not extinct And he put the case of the Lord Paget in the King's Bench adjudged A Feoffment was made unto the use of the Feoffor for life the remainder to him whom the Feoffor should name at his death in Fee the Feoffor and the Feoffees for good consideration levied a Fine unto a stranger and afterwards the Feoffor named one and died the party named by the Feoffor shall have the land notwithstanding the Fine Beamount The contingent use here is utterly destroyed by the Feoffment aforesaid and it appeareth by the preamble of the Act of 27 H. 8. That the makers of the Act did not favour Vses but their intent was utterly to extirpate Vses And if contingent Vses which are not nor cannot be excused by the Statute should stand in force The mischief would be That no purchasor should be secured and safe in his purchase but should always be in danger of a new born Vse not known before and he grounded his farther argument upon the reason of Manwood and Dyer Where a man makes a Feoffment in Fee to the use of himself and his Wife which shall be and afterwards he and the Feoffees and those in remainder make a Feoffment to divers new Feoffees and to new Vses and afterwards he takes another Wife and dieth It was the opinion of the said two Iudges That by that Feoffment ut supra the contingent Vses are destroyed For when the Estate which the Feoffees accept is taken away which was the root and foundation of the Vses which are the branches and fruit of the body of the said Tree it necessarily followeth That they be also taken away and because the Feoffees by their Livery are barred to enter to recontinue the Estate which should yield such Vses they also are gone and extinguished Yelverton was of opinion that notwithstanding the said Feoffment that the Vse should rise in his due time according to the limitation of it It was adjourned CCXIX. The Lord North 's Case Trin. 30 Eliz. In the King's-Bench THE Queen granted unto the Lord North and his heirs the Fines pro licentia concordandi and one would not pay him the Fine for which cause the Lord North brought an Action upon the Case against him and declared upon Indebitatus assumpsit c. Godfrey moved this matter to the Court to know their opinion if such Action would lie for the matter or not Fenner For a Fine in a Court-Baron or Court-Leet debt lieth but as he conceived 1 Leon. 249 250. 3 Len. 56. 234. here this Action doth not lie for it is a real Fine and there is no contract betwixt the parties but the same is given by the Law and some were of opinion that debt lieth for a relief for there is a contract by Fealty Gawdy conceived That the Action doth well lie for it is not any casual profit and therefore debt lieth for it although it be an inheritance And see Dyer 28 H. 8. 24. The heir shall have an Action of Debt upon a Nomine poenae reserved by his Ancestour Wray I do not see that he hath any other remedy and therefore I am of opinion that this Action will lie CCXX Mrs. Paschall 's Case Trin. 31 Eliz. In the Exchequer MIstress Paschall was bound with sureties for her appearance before the high Commissioners that she should not depart without licence under the hands of three of them and she pleaded the general Pardon at the last Parliament in which there is an Exception of all Bonds and Recognizances except onely such Bonds and Recognizances as are for appearance And Atkinson argued That she ought to be discharged by the Exception for although the departure without licence be not specially named yet it is within the sense for the not departure without licence is no other thing than to continue her appearance Popham contrary For The Non departure without licence was set down in the Condition to this purpose That she should not go into the Countrey to be corrupted there or to corrupt other and receive Seminaries c. therefore it is another thing than appearance Between Hore and Hare the Case was One was bound to make his appearance at such a day and in the mean time thrice every Month to repair unto such a Preacher to be better informed in Religion although the Non appearance was pardoned yet the other point i. the resorting to the Preacher is to be answered Atkinson There the resorting to the Preacher is collateral and a several point from the appearance But in the Case at Bar the not departure is pursuant to the appearance And the opinion of all the Barons was That the pardon did not extend to the same CCXXI Trin. 31 Eliz. In the Common-Pleas 1 Len. 205. AN Action was brought against an Executor who pleaded That he refused the Executorship upon which the parties were at issue The Bishop certified Quod non recusavit whereas in truth he had refused before the Commissary of the Bishop Fenner Serjeant moved to have the advice of the Court upon this matter and argued That the Court ought to write to the Commissary which was denied by the Court for he is not the Officer to this Court as to that purpose but the Bishop himself is our Officer and the party cannot have an Averment against the Certificate of the Bishop no more than against the Retorn of the Sheriff And the Court also held That the onely remedy for the Defendant was by an Action upon the Case against the Bishop for his false Certificate But it was moved That the issue joined upon the refusal ought to be tried by the Countrey and not by the Certificate of the Bishop and such was the opinion of Windham and Walmsley Periam Where the issue is that the Executor refused before such a day or after there the issue shall be tried by the Countrey contrary Where the issue is upon the refusal generally for the refusal is before him as Iudge as also resignation is CCXXII Giles 's Case Mich. 28 and 29 Eliz. In the King's-Bench A Writ of Error was brought in the King's-Bench to reverse a Iudgment given in an Action upon the Case in the Court of Common-Pleas where the Writ brought against the Defendant there in that Case was Quare exaltavit stagnum per quod pratum of the Plaintiff was inundatum The Defendant in the Action there pleaded Not guilty and the Iury found That the Defendant Erexit stagnum and they said That if the Court shall judge That Erectio and Exaltatio be all one then they find that the Defendant is guilty and afterwards Iudgment was given in the said Court of Common-Pleas for the Plaintiff Whereupon this Writ of Error is brought And Glanvile Serjeant who
argued for the Plaintiff in the Writ of Error alledged the general Error viz. That Iudgment was given for the Plaintiff where it ought to be found for the Defendant And he said That Erigere stagnum est de novo facere exaltare is erectum majoris altitudinis facere Deexaltare est ad pristinam altitudinem adducere Prosternere stagnum est penitus tollere And in every Action upon the Case such apt and precise words are to be in the Writ according as his Case requires unto the end that Iudgment may in such Action be given to the Plaintiff according to his plaint and his damages In 7 E. 3. 56. In Assise of Nusans Quare exaltavit stagnum ad nocumentum liberi tenementi sui The Defendant pleaded that he had not inhanced it after it was levied and there it was said by Drew Serjeant That there is not any other Writ in the Chancery but Quare exaltavit stagnum But that was denied by Herle For that he said that the Plaintiff might have a Writ out of the Chancery Quare levavit stagnum And there by that Book it is assigned That Levare stagnum exaltare stagnum do differ and therefore he said that in this Case the Writ should abate for the using of one word for another 8 E. 3. 21. Fitz. Nusans 5. by Chauntrel In a Writ of Nusans Quare levavit if it be found that he levied it to the Nusans c. the whole shall be destroyed but in a Writ Quare exaltavit nothing shall be pulled down if it be found for the Plaintiff but that which is enhaunced onely So 8 Ass 9. Br. Nusans 17. the same Case is put And see 16 E. 3. Fitz. Nusans 11. If the Nusans be found in any other form than the Plaintiff hath declared he shall not recover And in 48 E. 3. 27. the Writ was Quare divertit cursum aquae c. and the Plaintiff shewed that the Defendant had set piles and such other things in the water by reason whereof the course of the water was straitened and because the Plaintiff might have had a Writ Quare coarctavit cursum aquae the Writ was abated Another Exception was taken viz. That the Assise of Nusans ought to be brought against the Tenant of the Freehold and therefore it would not lie in this Case it not being shewed that the Defendant was Tenant of the soil Vid. 33 H. 6. 26. by Moile If a way be straitned and impaired an Action upon the Case lieth but if it be altogether stopped up then an Assise must be brought But there it is said by Prisoit That if the stopping up of the way be done by the Tenant of the Land then an Assise lieth if by a stranger then an Action upon the Case But for common Nusances no Action lieth but they ought to be presented in the Court-Leet or Turn and there redressed and such was the opinion of the whole Court in this Case Then it was moved 6 Co. 25. That one of the Plaintiffs in the Writ of Error had released and the Question was whether that release should bar his companion to which nothing was said At another day the Case was moved again and Drew Serjeant said That Exaltare and Erigere are all one but all the Iustices were against that for that Erigere is de novo facere and Exaltare is in majorem altitudinem attollere and afterwards judgment was affirmed CCXXIII. Freeman and Drew 's Case Trin. 30 Eliz. In the King's-Bench IN an Action upon the Case by Freeman against Drew The Defendant pleaded That after the Assumpsit whereof the Plaintiff had declared There was an agreement betwixt them That the Defendant and two others should be bound in a Bond to the Plaintiff for the sum promised and that they entred Bond accordingly The Plaintiff confessed the agreement and that the Bond was made according to the agreement and that the parties bound did deliver the same as their Deed cuidam ignoto to the Plaintiff The Defendant said That they did deliver the Deed to one J. S. and gave notice thereof unto the servant of the Plaintiff and that they are now ready to deliver it to the Plaintiff upon which there was a Demurrer Godfrey argued That the said Plea of the agreement specially executed ut supra was good as in a Case lately adjudged between Alford and Leigh 1 Cro. 54. Ante 110. Tr. 29 Eliz Where the Arbitrament was made That Leigh should release unto Alford before the Feast Petri ad vincula and before the said Feast Leigh sealed and delivered such a release unto the use of the said Alford and after the Feast he tendred it to Alford but he refused it and brought Debt upon the Bond for performance of the Arbitrament and it was adjudged That the Action would not lie for if he do recover upon that Action he also should take advantage of the release Coke In Alford's Case a tender was to the Plaintiff himself which is not in this Case and although that it was after the Feast yet it was before the suit commenced and also in our Case the tender is depending the suit Gawdy If the Plaintiff should recover in this Action he might plead the recovery in Bar of the suit upon the Obligation Wray Let the Plaintiff release the Bond and take Iudgment here which was done accordingly CCXXIV. Somers and Sir Richard Buckley 's Case 32 Eliz. In the Common-Pleas IN the Case betwixt Somers and Sir Rich Buckley Where the Plaintiff prayed a Prohibition to the Court of Admiralty The Case was That the Defendant sued in the Admiral Court for the moyety of a Ship and prize taken by them upon Letters of Reprizal 2 Inst 205. for the Civil Law is That if two Ships meet at Sea together although they do not go forth as consorts and the one Ship in the presence of the other taketh a Ship with goods in it the other Ship which was present shall have the moyety 2 Roll. 205. or one half of the Ship and goods taken for although it did not take the Ship yet the presence thereof there at the time of the taking was a terrour to the other Ship which was taken Sine quo the other Ship could not be so easily taken And now the Plaintiff for the Prohibition did surmise That after they were arrived in England 2 Roll. 171. they did agree amongst themselves That the Plaintiff should have four parts of the said Ship and goods so taken and the other five parts And the Plaintiff said that he had pleaded this matter in the Court of Admiralty and they would not allow the Plea and thereupon he prayed a Prohibition which was granted but afterwards it was moved on the other side That the said Court of Admiralty would allow the Plea and there trie it and thereupon a conditional consultation was granted by the Court so that that Court allow that Plea and trie
That William Heydon was seised of the lands and enfeoffed him And upon Ne enfeoffa pas the parties were at issue and it was found by special Verdict That the said William Heydon was seised and leased the Lands to the Defendant for years and afterwards he made a Deed of Feoffment to the same Lessee of the same Lands in Fee by the words of Dedi concessi with a Letter of Attorney within the said Deed to make Livery to the Lessee and the Deed of Feoffment was delivered to J. to deliver the same to the said Lessee who delivered the same accordingly The Lessee delivered the same to the Attorney named in the Deed who made Livery accordingly And it was moved by the Council of the Plaintiff That upon all this matter here is not any Feoffment And by Walmesly Serjeant This Deed so delivered took its effect presently as a confirmation and then the Livery and Seisin comes too late for as soon as the said Deed was delivered to the Lessee for years the Law gave to it its operation to this effect To vest the Fee and the Freehold in the Lessee by way of confirmation See for that Littl. 532 533. But the whole Court was of a contrary opinion for it is in the election of the Lessee to take the Conveyance as a Feoffment or as a confirmation And here it appeareth upon the Deed that the intent of both parties was That the Lessee should take by way of Feoffment and not of confirmation for otherwise to what use should be a Letter of Attorney inserted in the Deed And here the Lessee hath liberty to make his election how he will take either by Feoffment or by confirmation which election he hath determined by the acceptance of the Livery And by Anderson If tenant in tail be disseised and makes a Charter of Feoffment and delivers the same to the Disseisor who delivers the same to the Attorney named in the Charter who makes Livery accordingly here is a good Feoffment and a discontinuance and afterwards after many motions made and day given to shew cause Iudgment was given that the Plaintiff should be barred CCXLII. Rooke and Denny 's Case Trin. 28 Eliz. In the Common-Pleas IN an Action upon the Case by Rooke against Dennis for misusing of the Plaintiff's Horse by occasion of which misuse the said Horse became blind of one eye and gall-back'd The Plaintiff counted That the said Horse was stolen by three Felons after whom the Plaintiff made fresh suit and that the Felons were apprehended and attainted at his suit because Iustice Windham Hetley's Rep. 64. Rolls 809. More 572. Hetley's Rep. 64. and that the said Horse came unto the hands of the Defendant who misused it Ut supra The Defendant said that before that and the said Attainder of the said Felons the said Felons had waived the said Horse within his Manor in which Manor he had waife and estray c. And it was holden by the Court that the same was no Plea without traversing the fresh suit whereof the Plaintiff hath declared for by the fresh suit the property of the Plaintiff in the said Horse was preserved and so upon that misuser of the Horse by the Defendant an Action well lyeth and Iudgment was given for the Plaintiff accordingly CCXLIII Pretiman and Cooke 's Case Hill. 29 Eliz. In the King 's Bench. IN Ejectione firmae The Case was Ante 129. 1 Cro. 52. 3 Len. 180. That one Hawkins was seised of three Messuages in Bury and had issue Robert a son and Christian and Joan daughters and by his Will devised his three Messuages to his wife for life the remainder of one of them to Robert his son and his heirs and the remainder of another of them to Christian his daughter and her heirs and the remainder of the third Messuage to Joan his daughter and her heirs And farther willeth That if any of his said three issues should die without issue of his or her body that then the other surviving shall have Totam illam partem betwixt them equally to be divided The Devisor died the wife died one of the daughters died having issue the son died without issue the sister surviving entred into the whole part of Robert the son and died her husband held in the land as tenant by the Curtesie and the question was If the surviving daughter should have all the part of him that died without issue or she and the issue of the other daughter Coke The survivor shall have the whole And he said that the Devisees have an Estate in tail for the Fee doth not vest in them for it is incertain which of them shall survive but when one surviveth then he shall not have for life but in Fee for the words Totam illam partem goe as well to all the Estate as to all the things A. tenant for life the remainder to B. in tail the remainder to the right heirs of A. A. grants Totum statum suum both the Estates pass and the Grant includes the whole See 41 E. 3. Fitz. Br. 541. In Ravishment of Ward supposing the ravishment of two daughters Quarum maritagium ad ipsum pertinet and it was challenged because he doth not say Maritagia but the challenge was not allowed and he said That if a man deviseth his land wholly to A. that he hath a Fee-simple See the Case H. 28 Eliz. the Case between Higham and Harwood And Coke said That they had by this Devise a Fee-tail with a Fee-simple Expectant each of them severally in the Messuage to them limited Golding Each of the Devisees hath an Estate-tail in the Messuage to them devised and but an Estate for life in the Messuage which is to accrue upon the death without issue c. For no Estate is limited expresly nor what Estate the survivor shall have for here are not any words which do import a Fee-simple as according to Littleton imperpetuum or to do what he will with c. See for that 22 E. 3. ad Terminum qui praeteriit but here are onely bare words of which no farther construction can be made but for life And as to the words Totam illam partem the same doth not extend farther than if he said Partem suam And he said that nothing vests in him who survives for there ought to be two to take by the survivor or otherwise nothing shall accrue to the survivor for the words of the Devise are aequaliter inter eos dividend and that which accrues by survivor shall be divided betwixt two otherwise nothing shall accrue And if it cannot survive to two then it shall descend to the issue of the sister who is dead and to the surviving daughter and they shall be tenants in common and not joint-tenants Clench These words Totam illam partem go onely to the house and not to the Estate in it which Shute granted If both the daughters had survived Robert they should have Fee
meaning of the Obligee to have fine gold it was so taken 39 H. 6. 10. and 11. The word uterque id est quilibet pro parte sua See the Book so it was lately adjudged in the Court of Common-Pleas where three were bounden Et eorum uterque which was construed to be Quilibet for we ought always in construction of Deeds to have regard to the meaning of the parties and not to argue the aptness of the Latine word And I conceive That if a Lease be made for life the remainder puero of J. S. who hath a son and a daughter the son shall have the land c. for the most worthy shall be preferred and therefore if a Freeman marrieth a Neife she is enfranchised for ever according to the opinion of Fitzherbert which I hold to be good Law for the husband is the more worthy So if the Lease for life be made 〈◊〉 J. S. the remainder to the right heirs of A. B. who hath issue three daughters and dieth the eldest shall have the remainder and not the other with her because she is the more worthy and so a remainder upon an Estate for life of lands in Gavelkind limited to the right heirs of J. S. who hath issue two sons the eldest shall have it So here in the principal Case Puer shall be expounded son because he is the more worthy But here are other circumstances which give occasion of another construction for this doubtfull word Puer is explained by the English Indenture which the father W. Humphreston caused to be made Unto the use of the eldest Child which is a good exposition of the former Conveyance and I am of opinion that the same ought to be meant of the daughter for so soon as she is born the remainder vests in her and by the birth of the son after shall not be devested Land is leased to A. for life the remainder to T. son of A. who hath two sons of the same name the eldest shall have it because the more worthy but if afterwards the Donor declares his meaning to the contrary the same shall stand c. And afterwards Iudgment was given against the Plaintiff and that the daughter should have the Lands CCLXXVI Pasch 16 Eliz. In the King's-Bench Poph. 182. Hughs Abr. Tit. Devise 657. Case 5. Savile 72 73. Dy. 371. b. Shep. Touch. 449. 15 H. 7. 12. Ante 43. Perk. 547. A Man devised his Lands to his Wife for life and because he was in doubt whether he should have issue or no he farther willed by his Will That if he should not have any issue by his Wife that then after the death of his Wife the lands should be sold and the money thereof coming distributed to three of his bloud and made his Wife and another his Executors and died The Executors proved the Will The other Executor died and the Wife sold the lands and it was the opinion of Wray and Southcote Iustices That the sale was good although it be not expressed in the Will by whom the Lands should be sold for the moneys coming of the sale are to be distributed by his Executors to persons certain as Legacies and it appertains to Executors to pay the Legacies and therefore they shall sell c. As if a man willeth That his lands shall be sold and that the moneys coming thereof shall be disposed of for the payment of his debts now the Executors shall sell the Lands for to them it belongs to pay debts Also they held 3 Cro. 278. 3. More 341. 1 Inst 113. a. 1 And. 145. that the Lands should be sold in the life of the Wife otherwise it could never be sold and also the surviving Executor shall sell the lands because the authority doth survive CCLXXVII Pasch 16 Eliz. In the King's-Bench THree men were bounden by Recognizance jointly and severally against all which the Conusee sued forth Execution by Scire facias and upon issue joined it was found for the Plaintiff in the King's-Bench and Execution awarded by Capias ad Satisfaciend And because the same erronicè emanavit being upon a Recognizance it was drawn off the File and now the Conusee brought an Action of debt upon the Iudgment against one of them and the opinion of the whole Court was that it would not lie because the Iudgment was joint against them all three CCLXXVIII Pasch 16 Eliz. In the King's-Bench A. Brought an Action upon the Case and declared That the Dean and Chapter of Westminster did lease unto him a house for years by Deed indented of which Indenture he was possessed and afterwards lost it and by Trover it came to the hands of the Defendant who sold it and converted the money thereof coming to his own use The Defendant pleaded Not guilty and the Plaintiff gave in evidence That the said Lease was made to him and to one B. and that the said Indenture was delivered to the said B. And that was agreed to be the possession of them both and afterwards B. died and afterwards A. the Plaintiff was the sole owner of it and that was holdden to be good Evidence on the part of the Plaintiff and if the Plaintiff can prove the other part of his Declaration i. e. that the Indenture came unto the hands of the Defendant and that he sold it that then he should recover But it was given in Evidence on the Defendants parts that the said B. sold to the said Defendant his part and interest in the said Lease and also the said indenture so as now he is become Tenant in common with the Plaintiff and then his sale doth not give any cause of Action to the Plaintiff and that was holden by the whole Court to be good evidence without pleading of it The Case went farther That A. being within age his father leased the lands for 20 years and afterwards the son at his full age upon the back of the Indenture did release to the Defendant all his right and it was holden by Wray Iustice That when the father leased he did it as Guardian to his son and it was not any Ejectment of the son but it was a Lease in the behalf of the son although the son might avoid it and then when the endorsment is ut supra the same is a good assignment and afterwards the Plaintiff was Nonsuit CCLXXIX Pasch 16 Eliz. In the King's-Bench IN an Action upon the Case the Plaintiff declared That B. by his Will did devise to each of his daughters he having two daughters 200 l. and that the survivor should have the whole and shewed farther that one of his two daughters died and that B. made his Wife his Executrix and that the said wife took to husband the Defendant and farther declared That the Defendant in consideration of all that and that the Defendant should take the surviving daughter to wife and in consideration that the Defendant had Assets to pay all Debts and
Legacies c. did promise to pay to the Plaintiff 400 l. at four several days The first day of payment incurred and no money was paid whereupon the Plaintiff brought the Action the Defendant pleaded That he made no such promise and it was found for the Plaintiff and damages were assessed for the default of payment at the first day and that was moved in arrest of Iudgment because the Assumpsit was intire and the Plaintiff ought to have forborn his suit until all the days of payment were past and then to have one entire Action for the whole but the opinion of the whole Court was against that for they said It is not like unto a Debt upon a Contract or a Bill where the debt is to be paid at several days for here no debt is to be recovered but onely damages for the debt and this default of payment is a wrong and therefore the Action will well lie and so it was adjudged CCLXXX Pasch 16 Eliz. In the King's-Bench A. Devised that his lands should descend to his son but he willed 1 Cro. 252. Hob. 285. Dyer 251. a. Dy. 210. a. 3 Len. 9. 79. Yel en Ayleff Choppins Case Vaugh. 184. That his wife should take the profits thereof until the full age of his son for his education and bringing up and died the wife married another husband and died before the full age of the son and it was the opinion of Wray and Southcote Iustices That the second husband should not have the profits of the lands until the full age of the son for nothing is devised to the wife but a confidence and she is as Guardian or Bailiff for to help the Infant which by her death is determined and the same confidence cannot be transferred to the husband but contrary if he had devised the profits of the land unto his wife until the age of the Infant to bring him up and educate him for that is a Devise of the land it self CCLXXXI Bawell and Lucas 's Case Pasch 16 Eliz. In the Common-Pleas IN a Replevin by Bawell against Lucas It was agreed by all the Iustices viz. Mounson Manwood Harper and Dyer That if a man seised of a Manor leased part of the Demeans for years or for life That the reversion doth remain parcel of the Manor but such a Reversion by the Grant of the Manor doth not pass without Attornment of the Lessee And where a Manor is granted by Feoffment unto another and afterwards the Tenants attorn the services pass by the Livery and not by any Grant and although in the first Grant the Lessee doth not attorn but a long time after yet the Reversion is not severed from the Manor for the Attornment as to that intent shall have relation to the Livery to make the Reversion to pass from the time of the Grant but not to charge the Lessee with Waste and Dyer said That if a Feoffment in Fee be made of a Manor with an Advowson appendant and the Tenants do not attorn yet the Feoffee shall have the Advowson for the Advowson is appendant to the principal part of the Manor scil the Demeans and cannot be appendant to the services and Dyer said That if A. maketh a Feoffment in Fee of a Manor part of which is in Lease for years Habendum to the Feoffee and his heirs to the use of the Feoffee and his heirs upon condition that the Feoffee shall pay to the Feoffor within ten days 1000 l. and if he fail then to the use of the Feoffor for life the remainder to the use of his son in tail and the money is not paid the Lessee attorns after the ten days to the Feoffee 2 Leon. 265 266. the same is a good Attornment to raise secondary uses although that the first uses did not take effect for the condition is not annexed to the Estate of the Land but unto the use onely and the meaning was that the Feoffor should never have again the Inheritance A Feoffment is upon condition that the Feoffee shall give the Land in tail to a stranger who refuseth the gift there the Feoffor may re-enter but a Feoffment upon condition to enfeoff a stranger or to grant a Rent-charge if the stranger refuseth there the Feoffor shall not re-enter for his intent was not that the Land should revert c. CCLXXXII Vavasor 's Case Hill. 16 Eliz. In the Common-Pleas THE Case was That Nicholas Ellis seised of the Manor of Woodhall leased the same to William Vavasor and his wife for the life of the wife the remainder to the right heirs of the husband The husband made a Feoffment in Fee to the use of himself and his wife for their lives the remainder to his right heirs the husband died the wife held in and committed waste in a Park parcel of the Manor It was moved If the Writ of Waste shall suppose that the wife holdeth in Ex dimissione Nichol. Ellis or Ex dimissione viri and the opinion of all the Iustices was That the Writ upon this matter ought to be general viz. That she holds in de haereditate J. S. haeredis c. without saying ex dimissione hujus vel illius for she is not in by the Lessor nor by the Feoffees but by the Statute of Uses and therefore the Writ shall be Ex haereditate c. And also the opinion of the Iustices was That the wife in this case is not remitted but that she is in according to the form of the Feoffment Dyer The Formedon brought against Manures rehearsed in the Writ a Will and divers Conveyances by reason of which the Writ was of exceeding length and in such cases the Writ is good yet if the Writ be general it is sufficient Note in this Case That the Plaintiff assigned the waste in destroying of Deer in the Park And Mead Serjeant said That waste cannot be assigned in the Deer unless the Defendant hath destroyed all the Deer and of that opinion was Dyer Manwood If the Lessee of a Pigeon-house destroy all the old Pigeons but one or two couple the same is waste and if the Keeper doth destroy all the Deer so as the ground is become not Parkable the same is waste although he hath not destroyed the whole See 8 R. 2. Fitz. Wast 97. If there be a sufficient store left in a Park Pond c. it is well enough c. CCLXXXIII Mutton 's Case Hill. 16 Eliz. In the Common Pleas. JAne Mutton brought a Writ of Entry Sur disseisin 1 Anders 42. More 96. against Anne Mutton who pleaded That one John Mutton was seised and levyed a Fine to the use of himself and such wife and wives as the said John should after marry by what name or names they should be called for term of their lives and afterwards to the use of the same Jane now Demandant in tail the remainder over to the right heirs of the said John Mutton and afterwards the said
of the Hundred upon this Statute and it seemed hard to the Inhabitants there that they should answer for the Robberies done at Gadds Hill because Robberies are there so frequent that if they should answer for all of them that they should be utterly undone And Harris Serjeant was of Councill with the Inhabitants of Gravesend and pleaded for them that time out of mind c. Felons had used to rob at Gadds Hill and so prescribed and afterwards by award they were charged And note That the Case was that three men were robbed and they three joined in the Action against the Inhabitants XX. Colshil and Hasting 's Case 20 Eliz. In the Common-Pleas AN Extent was sued forth upon a Statute-Merchant by Colshil against Hastings for Lands in his possession in the County of Southampton The Sheriff put the Plaintiff the Conusee in possession of parcel of a House and of Lands and suffered Hastings to continue in the rest of the House Execution executed 1 Leon. 145. by reason whereof Hastings kept the possession of the whole and held the Conusee out The Conusee to the intent that he might have full and perfect possession of the whole caused the Sheriff that he did not retorn the Writ of Extent upon which it is entred on the Roll Quod Vice-Comes nihil inde fecit nec misit breve Whereupon issued an Alias extendi facias upon which the new Sheriff did retorn That in the time of the old Sheriff a Writ of Extent issued forth c. and that the said Sheriff had extended the Lands by reason whereof the now Sheriff could not extend them upon the new Writ It was moved for the Conusee That the retorn was not good For although that the Lands be extended by the first Writ Yet because it is not retorned it is not any Execution in Law nor could the Conusee have an Assise which Manwood Iustice denied Loare Preignothory Our course is when no retorn of such Writ is made to grant an Alias at the prayers of the party and to enter upon the Roll That the Sheriff upon the first Writ Nihil inde fecit nec misit breve And that was taken by the Court to be a good and lawfull course in such Case for upon such surmise that no Execution hath been done and that upon such entry on the Roll an Alias Breve might be well awarded And afterwards this second Writ of Extent was not filed by order of the Court And note that the new Sheriff was examined upon his Oath by the Court of the Action and he said that he made the retorn by the advice of Master Plowden who told him that he might safely retorn that the Land was formerly extended and although that the said Extent was not retorned yet it is an Execution for the Party Manwood Certainly this is an insufficient retorn But perhaps Master Plowden did not know of this entry in the Roll as aforesaid for now it appeareth upon Record that no Execution was done If this entry had not been I should well agree with Master Plowden that the same is an Execution for the party although it be not retorned XXI Steward 's Case 19 Eliz. In the Common-Pleas THE Case was A. seised of certain Lands in Fee granted a Rent-charge out of the same to another and afterwards aliened the Lands to a stranger The Grantee in a Replevin did avow for the Rent and the other party pleaded that nothing passed by the Deed It was holden by the whole Court to be no plea nor can any issue be joined upon it but the Plaintiff ought to have said That he did not grant by the Deed For the same is a Rent newly created and which had not his essence before the grant and it cannot properly be said That nothing passed by the Deed but not of a thing that is in esse but of things not in esse That he did not grant is the most natural issue for a thing not in esse non potest transire XXII 19 Eliz. In the King's-Bench IN an Action upon the Case upon a Trover and Conversion to his own use per venditionem quibusdam hominibus ignotis Trover and Conversion the Defendant pleaded That the goods were bailed to him to bail over to J. S. to whom he had delivered them absque hoc that he did convert them to his own use per venditionem hominibus ignotis It was moved by Egerton that that matter is not traversable quod Wray concessit for the conversion to his own use is the cause and ground of the Action and not the selling of the goods c. XXIII Mich. 19 and 20 Eliz. In the Common-Pleas A Man was outlawed in the Court of Hustings of London and the Hustings in which the Iudgment of Outlawry was given Outlawry was holden two Weeks next after the last Hustings so as there was but two Weeks betwixt the two Hustings whereas commonly the Hustings is holden but every three Weeks and now the Sheriffs of London were in doubt if they might safely retorn the Outlawry without danger of an Action upon the Case brought against them by the party outlawed It was holden by Dyer and the whole Court that they ought and might safely retorn the said Outlawry for the Lord Dyer said That there is a Record in the time of R. 2. whereby it appeareth that in London they might hold their Hustings every Week if they pleased and afterwards he commanded Mosley and Christopher Secondaries to retorn the Outlawry which was done accordingly XXIV Lovelesse 's Case 19 Eliz. In the Common-Pleas Debt upon Recognizance 1 Cro. 608. 817. LOvelesse Serjeant brought a Scire facias upon a Recognizance and had Iudgment upon default Quod habeat Executionem and afterwards he brought an Action of Debt upon the said Iudgment and exception was taken to the Action for that he ought to proceed upon the Iudgment given upon the Scire facias and ought to sue Execution according to the said Iudgment by Elegit or Scire facias but not by Capias but the Exception was not allowed For the Recognizance is a Iudgment in it self and an Action of Debt will lie upon it without any Iudgment in the Scire facias And Debt lieth as well upon the Iudgment as upon the Recognizance it self and so was the opinion of the whole Court. XXV Eliz. In the Common-Pleas Brent 's Case Dyer 340. b. THE Case was That Robert-Brent being seised of Lands in Fee made a Feoffment thereof unto the use of himself and Dorothy his Wife for their lives and if he do survive his said Wife then to the use of him the said Robert and such a Woman as he should after marry for the Iointure of such Wife the Remainder over to a stranger in Fee And afterward with the privity and assent of the Feoffor he in the Remainder and the Feoffees join in a Feoffment to divers persons Note both Feoffments were
14. but contrary in a Writ of Habere facias seisinam or in a Liberate for in these Writs there are not such words and therefore although they be not retorned Execution done by virtue of them is good enough See 11 H. 4. 212. If the Sheriff by force of an Elegit doth deliver the moyety of the Land and doth not retorn the Writ if the Plaintiff will plead a new Action of Debt the Defendant may plead in Bar the Execution aforesaid although the Writ be not retorned nor doth remain upon Record and it is not like unto the Case of Partition made by the Sheriff for that must be retorned because that after the Retorn of it a secondary Iudgment is to be given scil Quod Partitio praedict firma stabilis remaneat in perpetuum firma stabilis in perpetuum tenetur says the Book of Entries 114. And Egerton the Solicitor-General cited a Case to be lately adjudged betwixt the Earl of Leicester and the Lady Tanfield Earl of Leicester and Tanfields case That such an Execution was well enough although the Liberate was not retorned The second point was Admitting that it be a good Execution If the Executors being in possession of the Manor and suffering the Conusor to hold a Court there and saying the words aforesaid in the presence of the Lord who is Conusor if the same do amount unto a Surrender or not And it was the Opinion of Wray chief Iustice That it was not a Surrender for that here the words are not addressed to the Conusor who was capable of a Surrender but to other persons And it is not like unto the Case of 40 E. 3. 23 24. Chamberlains Assise where Tenant for life saith to him in the Reversion That his Will is that he enter upon the Land the same is a good Surrender because here is a person certain who may take the Land But in our case it is but a general speech and therefore it shall not be a Surrender LXVI Baskervile and Bishop of Hereford 's Case Mich. 29 Eliz. In the Common Pleas. IN a Quare Impedit brought by Walter Baskervile against the Bishop of Hereford and others the Plaintiff counted That Sir Nicholas Arnold Knight was seised of the Advowson in gross and granted the same to the said Baskervile and others to the use of himself for life and afterwards to the use of Richard Arnold his Son in tail Proviso That if the said Nicholas died his Heir being within the age of twenty three years that then the Grantees and their Heirs should be seised to themselves and their Heirs until the said Richard had accomplished the said age Sir Nicholas died Richard being but of the age of fourteen years by force whereof the Grantees were possessed of the said Advowson c. and afterwards the Church became void and so it appertained to them to present Exception was taken to the Count by Serjeant Gawdy because the Plaintiff had not averred the life of Richard upon whose life the interest of the Plaintiff did depend and he compared the same to the Case of the Parson which had been adjudged where the Lessee of a Parson brought an Ejectione Firmae and it was found for him and in Arrest of Iudgment Exception was taken to the Declaration because the life of the Parson was not averred and for that cause the Iudgment was stayed Anderson Vpon the dying of Sir Nicholas Richard being but of the age of fourteen years an absolute Interest for nine years vested in the Grantees not determinable upon the death of Richard or rather they are seised of a Fee determinable upon the coming of Richard to the age of 23 years Rhodes and Windham Iustices contrary and that here is an Interest in the Grantees determinable upon the death of Richard within the term for if Richard dieth without issue within the term the Remainder is limited over to a stranger And as to the Exception to the Count it was argued by Puckering Serjeant That the Count was good enough for although the life of Richard be not expresly added yet such an averment is strongly implied and so supplyed For the Count is Quod dictus Nich. obiit dicto Richardo being of the age of fourteen years non amplius by force of which the Plaintiff was possessed of the said Advowson quo quidem Nich. sic possessionato existente the Church voided and possessed he could not be if not that the said Richard had then been alive and that is as strong as an Averment See 10 E. 4. 18. In Trespass for breaking of his Close the Defendant pleaded That A. was seised and did enfeoff him to which the Plaintiff said That long time before A. had any thing B. was seised and leased to the said A. at will who enfeoffed the Defendant upon whom B. re-entred and leased to the Plaintiff at will by force whereof he was possessed untill the Defendant did the Trespass and that was allowed to be a good Replication without averring the life of B. who leased to the Plaintiff at will for that is supplied by the words scil virtute cujus the Plaintiff was possessed untill the Defendant did the Trespass See also 10 H. 7. 12. In an Assise of Common The Defendant made Title that he was seised of a House and a Carve of Land to which he and all those whose Estate he hath c. had common appendant and doth not say That he is now seised of the House but the exception was disallowed for seisin shall be intended to continue untill the contrary be shewed LXVII Morgan and Chandler 's Case Trin. 29 Eliz. In the King's-Bench IN Debt for Arrerages of Rent by Morgan against Chandler It was found by special Verdict That the Land out of which c. was assured by an Act of Parliament to the Marchioness of Northampton for the term of her life the remainder to the Lady Bourcher her daughter and the heirs males of her body the remainder to King H. 8. in Fee And it was ordained by the same Act Quod omnes concessiones dimissiones Anglice Grants and Leases factae vel in posterum fiendae by the said Marchioness of the Lands aforesaid per script Indentat dict Marchio bonae validae in Lege erunt durante termino c. The Marchioness made a Lease for 21 years to Kenelm Throgmorton rendring 10 l. Rent who assigned the same to the Defendant The Lady Bourcher died without Issue the Marchioness died and if the Lease should now bind the Queen was the Question And it was moved by Clark of Lincoln's-Inn That it should for the King was party to the Act of Parliament and those Estates for life in Tail and in Fee are all as one Estate and derived out of one Estate and the Estate of the King is bound with the Lease and it was moved by Broughton That the Lease should not bind the Queen and so by consequence not her Patentee and he
all this was before the Statute of 14 Eliz. And if the said Recovery should bind B. who was in the remainder in tail or if it be a forfeiture was the Question Altham of Gray's-Inn argued that here is a forfeiture First it is to see if a common Recovery suffered hy Tenant for life who is also Bargainor in this case be a forfeiture or not by the Common Law if no Execution be sued upon the same Recovery Secondly If the Recovery be executed if he in the Remainder may enter for the forfeiture When Tenant for life bargaineth and selleth the Messuage Post 65. acc 1 Len. 264. 1 Inst 251. b. acc 1 Inst 330. b. c. although upon it an Estate in Fee be limited yet nothing passeth from him but that which he may lawfully pass and that was the Estate for the life of the Bargainor for such Estate onely might lawfully pass and here the Bargainee is but Tenant for the life of another and when with his own consent he suffers a common Recovery and that without right the same is a forfeiture By matter in fact a particular Tenant may commit a forfeiture as well as by matter of Record By matter in fact he cannot commit a forfeiture if the Reversion be not thereby pulled out of him in the reversion As if Lessee for ten years maketh a Lease for 1000 years the same is no forfeiture for by that the Reversion is not touched but if he in matter of Record doe any thing which sounds to the disinheriting of him in the Reversion although in truth it doth not touch the inheritance yet it is a forfeiture which see 39 E. 3. 16. If Tenant for life plead any thing against the right of him in the Reversion it is a forfeiture And by Finchden and Belknap he cannot plead to the right 5 Ass 3. Tenant for life is impleaded in a Praecipe by a stranger and confesseth the Action upon which the Demandant hath Iudgment the Lessor enters against whom the Demandant sueth Execution and the Lessor brought an issue and had Iudgment to recover for it is a forfeiture because the Tenant for life hath admitted the Reversion in another because it is an alienation to the disinheritance of the Plaintiff i. the Lessor 19 E. 3. t. Receit 14. where Tenant for life pleads in chief or doth not gainsay the Action of the Demandant or makes default by Covin he shall forfeit his Estate but if a Rent be demanded against Tenant for life and he render the same it is no forfeiture 22 Ass 31. Tenant for life is impleaded by Covin betwixt him and the Demandant and pleads in chief without aid prayer upon which Iudgment is given he in the Reversion may enter In a Quid juris clamat against Tenant for life who pleaded faulty traversing the point of the Action he in the Reversion shall not be received for in as much as the Tenant hath traversed the Action he is not within the Statute of West 2. of default Reddition but he in the Reversion may enter by the Common Law 22 E. 3. 2. In a Scire facias to execute a Fine against Tenant for life who pleaded to the Enquest whereas in truth the Land in demand was not comprised within the Fine and Iudgment is given for the Demandant in the Scire facias that he in the Reversion may enter In the principal Case here there is apparent and manifest covin for the Tenant for life is vouched without cause and this Recovery is by assent and is to the use of the Bargainee who is Tenant for the life of another and therefore by the Common Law he in the Reversion may enter before the Execution be sued And it is well known that these common Recoveries are used to dock a Remainder in tail and that was the scope of this Recovery And as to the Case of 5 E. 4. 2. Tenant for life is impleaded in a Praecipe quod reddat who voucheth a stranger the Demandant counterpleads the vouchee and it is found for him he in the Reversion hath no remedy but a Writ of Right and if such vouchee enters into the Warranty and loseth by Action tried or by default c. That Book is to be intended of a Recovery executed for there in such a case he in the Reversion may not enter but is put to his Writ of Entry by the Common Law vide Br. Tit. Forfeit 87. 24 H. 8. Tenant for life is impleaded and prayes in aid of a stranger he in the reversion may enter but if he doth not enter untill the other hath recovered then he cannot enter but he is put to his Writ of Entry Ad terminum qui praeteriit vel de ingress ad com Legem and therein shall falsifie the Recovery And there by Brook Voucher of a stranger is not a cause of forfeiture for he doth not disaffirm the Reversion to be in the Lessor And he vouched 24 E. 3. 68. where Tenant for life pleaded in the Right without aid prayer and so he argued That before execution he in the Remainder might enter but after execution he is put to his Action but in our Case although Execution be sued yet he in the Remainder may enter for it is found by verdict That at the time of the Recovery he was within age and then no Laches of entry shall be imputed unto him and then he shall not be driven to his Action As if Tenant by the Curtesie maketh a Feoffment with Warranty and dieth and the same descendeth to his Heir within age yet he shall enter although that he had not avoided the Warranty in the life of his Ancestor And he also conceived that the Statute of 32 H. 8. cap. 31. did extend to this Case For Sir William Pelham the Bargainee was but Tenant for life and although that he be but Tenant for the life of another yet he is Tenant for life as fully as if he were Tenant for his own life The words of the Statute are or otherwise for the term of life or lives quo ad nom As upon the Statute of 20 E. 1. which gives receit i. de defensione juris the words are Cum quis aliquod Breve Dom. Regis impetret versus tenentem per Legem Angliae vel feodum talliatum vel sub nomine Dotis vel alio modo ad terminum vitae c. Also although that he who entreth at the time of the recovery was not next in the Remainder to the particular Estate yet he is within the Statute of 32 H. 8. for he was in the Remainder at the time of the Recovery and at the time of the entry he in the immediate Remainder was dead and then he next in Remainder See 15 E. 4. 9. by Littleton If I grant my services to one for life and he in a Praecipe brought against him plead in the Right or granteth unto another the said services in Fee the same is not any
years is out of the Book for by the Statute of 21 H. 8. cap. 15. he may falsifie the Recovery but no Receipt lieth in the case of a common Recovery for that he who recovers cannot put out the Termor As to that which my Brother Clark hath said That the bargain and sale in this case is not any forfeiture but when the bargain and sale is enrolled then it is a forfeiture I am not of such Opinion for although that the Enrolment be of Record yet the Deed is not of Record for against a Deed enrolled a man may plead Infancy although none can plead Non est factum Also he held That although by the bargain and sale and the Enrolment of it the Bargainee had not a fee for by such act the Reversion is not removed yet by the Recovery and the Execution of it the Bargainee hath gained a fee out of the Lessor for the Recovery is to the use of the Bargainee against whom it was had It hath been objected that here is onely a Voucher which paradventure was lawfull in this case by reason of a warranty paramount or of a Release or Confirmation with warranty and two Cases have been vouched to that purpose viz. 5 E. 4. 2. Tenant for life being impleaded in a Praecipe voucheth a stranger the Demandant counterpleads the Voucher which is found for him he in the Reversion hath no remedy but a Writ of Right so if the Vouchee had entred into the warranty and lost c. As to that book we ought not to conceive That every Case reported in our books is Law but let us observe of what authority that case is truly it is the conceit of the Reporter himself for he puts the Case and resolves the case but no Iudge or Serjeant is named in the case c. The other case is 5 E. 4. 2. b. Note by Heydon clearly If my Tenant for life voucheth a stranger who entreth into the warranty generally and doth not know how to bar the Demandant the Tenant shall recover in value and the Reversion of that which he hath in value shall be in me in lieu of my former Reversion as a Release to the Tenant for term of life shall enure to him in the Reversion But that is but the Opinion of one Serjeant c. But I answer to these books If the demandant in such recovery hath a good Title so as the Tenant or the Vouchee as Heydon saith do not know how to bar the Demandant there such Voucher of a stranger is no forfeiture nor such Recovery suffered upon it for against his Will volens nolens he suffered it but if the Tenant hath good matter to bar the Demandant and no good cause of Voucher nor any warranty as the matter is in the case of a common Recovery there the Voucher of a stranger or suffering of a Recovery is a forfeiture of his Estate And here in our case if the Demandant hath not any Title the Tenant or Vouchee hath not any warranty but the Tenant might have barred the Demandant if he would And he said That the Voucher onely doth not make the forfeiture but rather the recovery for when Iudgment is given and Execution is had then the Fee is plucked out of the Reversioner vide 6 R. 2. If Tenant for life claimeth a Fee the same is a forfeiture but here Sir William Pelham hath done more for he hath gained Fee by the Iudgment therefore à fortiori it shall be a forfeiture But let us see a little what meddlings or attempts by the particular Tenants are causes of forfeiture and what not 5 Assis 3. A. brought a Writ of Entry against Tenant for life by Collusion to oust B. of his Reversion supposing that the Tenant for life held of his Lease the Tenant confessed the Action upon which Iudgment is given B. enters and his Entry adjudged lawfull for this Recovery is adjudged in Law but an alienation to the disinheritance of him in the Reversion and there it appeareth that such Recovery by Covin is but an alienation and without any strength of a Recovery And he cited many other cases cited before by Altham 14 E. 3. Recept 135. where Tenant for life pleads in chief and prays in aid of a stranger where he might bar the Demandant and would not the same is a forfeiture Also 2 E. 3. 2. and 27 E. 3. where Tenant for life in a Quid juris clamat attorned to the Conusee upon a Fine levyed by him that had not any thing in the Land the same was a forfeiture and yet the Attornment doth not devest the Reversion out of the Lessor 50 E. 3. 7. and 8. Land was given by Fine in tail the Remainder over to a stranger in fee the Donee took a Wife and died without issue the Wife accepted Dower assigned by a stranger he in the remainder brought a Scire facias against the Wife she is Tenant in Dower of the assignment of a stranger and pleads to the Title the Demandant recovereth she hath lost her Dower for she hath not pleaded as she ought being a particular Tenant c. H. 4. Tenant for life loseth his Land in a Recovery against him against his Will and thereupon brings Quod ei deforceat and declares upon an Estate-tail and recovers the same is a forfeiture because he hath challenged a higher Estate than he had 5 H. 5. Tenant for life joyns the Mise upon the meer right 2 H. 6. Lessee for years being ousted brings an Assise and recovers 1 H. 7. Accepts a Fine of a stranger upon condition come ceo c. all these are forfeitures In the principal Case here the Tenant who suffers his Recovery doth not plead at all to defend the Right but whereas he might have barred the Demandant he giveth strength to his pretended Title and makes it a perfect Title and by suffering this Recovery and Iudgment to pass upon it he hath taken the Reversion out of the Lessor to whom he owed Fealty and therefore he shall forfeit his Estate And without any doubt it is apparent to the Court that the Demandant in this Recovery hath not any Title but the Recoverors in such cases are but as Assignees or Purchasors which appears by the Statute of 7 H. 8. ca. 2. which gives Distress and Avowry to Recoverors c. As to the inventing of Recoveries it was a necessary device for it was to take away Estate-tails which were the causes of great mischiefs and inconveniencies in this Realm and there was great reason for it for Tenant in tail might by the common Law alien his Lands post prolem suscitatam and now he hath an Inheritance and may do Waste But he was so restrained by the Statute of West 2. that all the Realm and the Subjects in it were inveigled thereby Ioyntures of Wives Leases of Fermors Mortgages to Creditors Statutes and other Assurances were defeated by the deaths of Tenants in tail which
was both against the common Law and also against all Conscience These matters coming to the knowledge of the Iustices and the mischiefs thereupon following being very frequent and it appearing that the Tenant in tail was a dangerous fellow and that there was no safe dealing with him they took consideration of them and considering also with themselves That Lineal Warranty and Assets and Collateral Warranty without Assets did bar the Entail upon this consideration they grounded the practice and usage of common Recoveries So as by that means Tenant in tail hath Potestatem alienandi as he hath at the Common Law and by this means right was done to the Common Law because its authority was restored and thereby injury was done to no man But as for Tenant for life he never had Potestatem alienandi And as to that which hath been said That the recovery shall stand in force untill after the death of Tenant for life and in our Case here Tenant in tail is alive Truly if the Law should be such great mischiefs would follow For then great Iointresses the Widows of great persons having assurances to them of great and stately Houses and of Lands furnished with Timber of great yearly value might suffer such Recoveries and so having plucked the Fee out of the Heirs might commit waste and the same should be dispunishable which would be an intolerable mischief and so he concluded that the suffering of a Recovery was a forfeiture and Iudgment Trin. 21 Eliz. was given and entred accordingly XC Noon 's Case Trin. 31 Eliz. In the Exchequer DEBT was brought in London against one as Executor and upon fully administred pleaded it was found for the Plaintiff who assigned the same to the Queen whereupon a Scire facias issued out of the Exchequer against the Defendant into the County of Dorset The Serhiff retorned Nulla bona c. which Scire facias was upon a Constat of goods in another County It was agreed by all the Barons that the Debt was well assigned to the Queen And also that the Scire facias might issue forth of another Court than where the Record of the Iudgment remained and that upon a Constat of goods in another County than where the Writ is brought or where the party is dwelling he may well have a Scire facias in another County But the Retorn was challenged because contrary to the verdict As in a Replevin No such beast is not a good Retorn but Averia elongata or Nullus venit ex parte querentis ad monstrand averia And here the Sheriff might have retorned Devastavit which well stands with the Verdict 5 H. 7. 27. But as to that it was said by the Barons That it is true that the Sheriff of the County where the Writ was brought is concluded by the Verdict to make any retorn contrary to it but the Sheriff of another County shall not so be but the Sheriff of the County where the Writ is brought ought to retorn Devastavit c. and thereupon the Plaintiff shall have Process into another County But the Question farther was If a Scire facias upon Testatum shall issue into another County before that the Sheriff of the County where the Writ is brought had retorned a Devastavit for some conceived That a Devastavit where the Writ was brought ought first to be retorned and then upon a Testatum Process should issue forth into any County within England But others were of opinion That without a Devastavit retorned upon a Testatum Process might be sued forth immediately into any other County Williams said If I recover goods by Action brought in Midd. I may upon a Testatum have a Capias into any foreign County XCI Western and Weild 's Case Trin. 31 Eliz. In the Exchequer IN a Writ of Accompt brought in London the Defendant pleaded Never his Receiver c. which was found for the Plaintiff and Iudgement given that the Defendant should accompt Afterwards the Defendant brought his Writ of Privilege and if the same should be allowed after Iudgment was the Question Coke It shall be allowed for the Defendant hath not surceased his time This Iudgement to accompt is not properly a Iudgment for no Writ of Error lieth upon it before the accompt be ended Manwood Regularly after Iudgment no privilege shall be allowed but that is to be intended of a Iudgment ended but here notwithstanding this Iudgment the Action is depending and therefore he conceived that the privilege should be allowed in this case It was objected That then the Plaintiff should be at great mischief for he should lose the advantage of his Trial for he must begin again and plead again and have a new Trial. Clark the Plaintiff shall have benefit of his former Trial by way of Evidence XCII Brian and Cawsen 's Case Trin. 27 Eliz. In the Common-Pleas Rot. 1353. 3 Len. 115. IN an Action of Trespass by Brian and his Wife and others against Cawsen That William Gardiner was seised in Fee according to the custome of the Manor of C. of certain Lands and surrendred them to the use of his last Will by which he devised them in this manner i. I bequeath to John Th. my House and Land in M. called Larks and Sone To Steph. Th. my House and Land called Stokes and Newmans and to Roger Th. my House and Lands called Lakins and Brox. Moreover If the said John Stephen or Roger live till they be of lawfull age and have issue of their bodies lawfully begotten then I give the said Lands and Houses to them and their Heirs in manner aforesaid to give and sell at their pleasure but if it fortune one of them to die without issue of his body lawfully begotten Then I will that the other brothers or brother have all the said Houses and Lands in manner aforesaid and if it fortune the three to die without issue in like manner Then I will that all the said Houses and Lands be sold by my Executor or his Assigns and the money to be given to the poor The Devisor dieth John Stephen and Roger are admitted according to the intent of the Will Roger dieth within age without issue John and Stephen are admitted to his part John comes of full age and hath issue J. and surrenders all his part of the whole and his Estate therein to the use of Stephen and his heirs who is admitted accordingly Stephen comes of full age John the father dieth Stephen dieth without issue John the son as cosin and heir of Stephen is admitted according to the Will and afterwards dieth without issue The Wives of the Plaintiffs are heirs to him and are admitted to the said Lands called Larks and Sone and to the moyety of the Lands called Lakins and Brox parcell of Lands where c. by force whereof they enter into all the Lands where the Trespass is done and it was found That A. sole Executor died intestate and that Cawsen
Son living his Father cannot take as heir i. by limitation as Heir to his Father because that none can be said or held Heir to his Father as long as the Father be alive yet by way of Devise the Law shall favour the intention of the party and the intent of the Devisor shall prevail But all the Court was strongly against it and held that as well in Case of Devise as of Grant all is one Whereupon the Tenant produced Witnesses who affirmed upon their Oaths That the Devisor declared his meaning concerning the said Will That as long as his eldest Son had issue of his body that the Daughters should not have the Land but the Court utterly rejected the matter and Iudgment was given for the Plaintiff XCV the Countess of Linnox Case 29 Eliz. In the Exchequer IN this Case it was said by Manwood chief Baron That whereas the Cistercians c. had a Privilege that they should not pay Tithes for their Lands quas propriis manibus excolant but their Fermors should pay Tithes and now by the Statute of 31 H. 8. they are dissolved That the Queen and her Fermors should be discharged of such Tithes as the spiritual persons were for the Queen cannot excolere ergo her Fermors shall be discharged and so long as the Queen hath the Freehold her Fermors shall have such Privilege although she Leaseth for years or at Will But if the Queen granteth over the Reversion then the Fermors shall pay Tithes More Rep. 915. XCVI Golding 's Case Mich. 29 Eliz. In the King's-Bench IN an Action upon the Case against Gloding the Case was 1 Len. 296. 1 Cro. 50. Noy 18. A Feme sole being Tenant for life by Devise of Lands Leased the same for years to begin after her death and afterwards made another Lease 18 Octob. for twenty one years to the same Lessee to begin at Michaelmas before and the Pleading was Virtute cujus quidem dimissionis and the Lessee entred Crast Sanct. Mich. which was before the making of the Lease And upon the Grant of these two Leases the consideration of Assumpsit was grounded in an Action of the Case thereupon and six hundred pounds damages given And now this was moved in Arrest of Iudgment Coke for the Plaintiff Where two Considerations are laid down in the Declaration although that the one be void yet if the other be sufficient the Action upon the Assumpsit lieth and damages shall be taken accordingly And the Grant upon the Assumpsit was That both the Leases should be assigned to the Defendant and the Plaintiff hath declared accordingly although that one of the Leases be void And the Agreement was That the Plaintiff should assign totum statum titulum interesse suum quae habet in c. It appears here in the Pleading That the Lease was made the eighteenth of October and the Lessee did enter and was thereof possessed Crast Mich. which was before and so the Lessee then entering was a Disseisor But by Coke the same is not a Disseisin although that the Lessee entreth before the Lease made for there was a communication of a Lease although the Lease was not made before the eighteenth of October and peradventure it was by assent of the Lessor in which case it cannot be a Disseisin but be it a Disseisin yet in as much as he hath assigned all his interest quod ipse tunc habuit the Consideration is answered and he hath also delivered both the Indentures of Demise and hath granted all that which he might grant be such Grant void or good it is good Consideration enough as to us Egerton Solicitor contrary In every Action upon the Case upon a Promise there are three things considerable Consideration Promise and Breach of Promise As to the Consideration in our Case the Grant of the Lease which is to begin after the death of the Lessor is merely void And as to the second Consideration it appeareth That the Lessor at the time of the making of the Lease had but a Right for he was disseised for he who was afterwards the Lessee entred before he had any Lease made unto him and so here is not any consideration to ground the Assumpsit upon But admit that there be a consideration yet the Action doth not lie For 19 Eliz. a difference was taken by the Iustices scil When in the Declaration in an Action upon the Case two or more considerations are laid and are not collateral but pursuant As if I owe you an hundred pounds and I say That in consideration that I owe you 100 l. and in consideration that you shall give me 10 l. I promise to pay unto you the said hundred pounds which I owe you If you bring an Action upon the Case against me for the hundred pounds and lay in your Declaration both considerations although you do not pay me the ten pounds yet the Action lieth But where the considerations are not pursuant but meerly collateral and do not depend the one upon the other As in consideration that you are of my Councel and you shall ride with me to York I promise to give to you an hundred pounds there both considerations ought to be performed or otherwise the Action doth not lie and so here in the principal Case the considerations being collateral they both ought to be performed Afterwards upon consideration had of the Case by the Court Iudgment was given for the Plaintiff and it was said by Coke That there was not any Disseisin in the Case but he who entred was Tenant at sufferance by reason of the precedent communication XCVII Curtise and Cottel 's Case Trin. 28 Eliz. In the King's-Bench THE Case was this That one Bonham was seised of a Manor within which there were divers Customary Lands demisable by Copy for three lives The Lord of the Manor did demise some of those Lands to three Sisters Habendum to them for their lives successive for the Fine of 100 l. by them paid and they being seised accordingly the eldest Sister who was Tenant in possession took to Husband one Chapman after which the said Lord by Indenture leased the same Land to the eldest Sister the Remainder to the Husband the Remainder to the second Sister and no Agreement was made thereunto by the second Sister by Deed before or after the making of the Indenture but four days after the Lease made she agreed to it in the Country and then took to Husband Curtise and they entred claiming the said Land upon which Entry the Action was brought The point was That when the Lease by Indenture was made to the eldest Sister at which time no agreement was made by the second Sister who was in Remainder yet when after she agreed If by that Agreement her Right to the Copihold were extinct or not so as the interest of the eldest Sister being gone by the acceptance of the Estate by the Indenture the second Sister might come and claim
was holden 5 Julii and then it was void For the Statute of Magna Charta cap. 35 requires that Leets be holden within one Month after Michaelmas and Easter But that Exception was not allowed For by Anderson Windham and Rhodes by force of the Prescription The Lord might hold his Leet what day he pleased and that his Liberty is not restrained by the Statute and such is the common experience for the same Statute provides for it scil Quod quilibet habeat libertates suas quas habuit habere consuevit tempore Regis H. avi nostri vel quas postea perquisiret And by Rhodes the said Statute doth not extend but to the Sheriffs Towns and not to other Leets which see Br. Leets 23. upon the Case of 8 H. 7. 1. which was affirmed by him to be good Law Contrary by Periam but he granted that if a Leet hath used to be holden at one day certain other than that which is limited by the said Statute the same may so continue notwithstanding the Statute for such Liberty is saved by the Statute And by Anderson and Rhodes If the King grant to one a Leet to hold Semel quolibet anno and doth not say Ad libitum of the Grantee yet the Grant is good and the Grantee may hold it at what day he will. C. Goore and others against Dawbeny 13 Eliz. In the Exchequer-Chamber Error A Writ of Error was brought in the Exchequer-Chamber by Goore and Goore Swinnerton and Tedcastel against Dawbeny of a Iudgement given against them in the Court of Exchequer in an Action upon the Case in the nature of a Conspiracy brought by Dawbeny c. who declared That Goore and Goore were joint Merchants of a stock of many wares in moyeties transported in Barbary and Swinnerton and Tedcastel were their Factors and Dawbeny and the Goores were also joint Merchants intire of Merchandizes transported c. And the said Swinnerton and Tedcastel were their Factors therein and that was to merchandize for two years and shewed farther That the said Plaintiffs did conspire against the said Dawbeny See the Declaration in the Number Roll for I could not take it in brief Coke of Councill with the Plaintiff assigned the Errors because Dawbeny in his Declaration hath declared that they were joint Merchants scil the now Plaintiffs and have conspired against him and hath not shewed the place where they were joint Merchants or where they were made joint Merchants and that is issuable although it be not the principal thing in the Declaration for that is the fraud As where Debt is brought for Rent reserved upon a Lease for years the principal matter is the Debt and the principal Issue is Nihil debet Yet the Demise is issuable and Non dimisit is a good Plea And here the Defendant by the Plea of Not guilty hath not lost the advantage of Exception aforesaid And he cited a great Case lately adjudged betwixt Stansam and Matthew in an Action upon the Case conceived upon the Trover of a Bond and the Conversion of it to his use The Defendant pleaded Not guilty and it was found against him And because in the Declaration there was not any place of the Conversion Iudgment was stayed Here in the Declaration are two things First the Conspiracy Secondly the execution of it for the one without the other will not maintain the Action but here the Conspiracy is not pursued nor executed according to that which is laid to be conspired The Conspiracy is laid That the Factor upon his account demanded 4000 l. of Barbary money per nomen bona denariorum summas and the Execution is laid That he demanded in allowance of wares delivered to Isaac Abess And he took a general rule That a Commander shall never be charged but where his Commandment is strictly and precisely pursued Barbary money is included in this word Bona for it is not current in England See as to the pursuing of the Commandment Sanders and Archer's Case Plow 18 Eliz. 437. And in our Case he not onely puts the thing but also the person for the Conspiracy is that he demanded allowance for goods delivered to Isaac and his four sons for Isaac In the one Case it is pretended That Isaac and four sons are Debtors and in the other Case Isaac onely Also here Dawbeny hath allowed and accepted the accompt of the Factors against which he cannot have this Action for it is ignorantia crassa idque facti quae non excusat Also upon such incertain demand as is laid in the Declaration Dawbeny was not holden to make allowance i. for so much wares upon a certain bargain made with Isaac and that was not a lawfull demand and upon such uncertain demand he was not bound to make allowance Et hoc modo est ignorantia juris quae non excusat omnino Also here Swinnerton onely accompts and demands allowances and Swinnerton onely was not Factor but also Tedcastel and therefore Dawbeny was not bounden to allow that accompt to Swinnerton no more than to a mere stranger And also Dawbeny alone was not to make allowance for the two Factors were accomptable to him and to Goores also And so allowance by one of them to whom they are accomptable is not good One Executor where the power is committed to two sells the Land the sale is void and two joint Attorneys c. one onely can doe nothing And here in this Declaration it is many times alledged that they were conjunctim Mercatores conjunctim Factores But I confess that one joint Factor with the express consent of his companion may accompt alone and so of the other one may by express consent take an Accompt onely One Factor is no Factor where there are many joint Factors and in our Case the two Goores and Dawbeny saw the accompt but Dawbeny onely allowed of it and that is not good As if two Arbitrators are and one onely makes the award although both hear the matter 14 E. 3. Fitz. Acc. 72. That the one Accomptant cannot accompt without his companion but there Parn saith That it had been adjudged 6 E. 3. that the one might accompt without the other See 41 E. 3. 3. 9. Tamworth's Case Tanfield contrary As to the first Error it is but conveyance and matter of inducement to the fraud and conspiracy which is the principal point of the Action and therefore needeth not to be so precisely alledged and also by the general issue they have passed the advantage of it and all the special matter of the Count is contained in the general issue for not guilty goes to all and includes the whole Also upon the matter the Iury hath found that they were joint Merchants and although they were joint Factors and the one onely hath accompted yet the same accompt is good enough for it was made with the consent of the other as appeareth by the Declaration Conspiraverunt agreaverunt that Swinnerton in his accompt
peteret allowance c. so there was consent to take the accompt c. and 6 E. 3. it is adjudged ut supra And that the one joint Factor may accompt without his companion is the Law of Merchants for Factors are oftentimes dispersed so as they cannot be both present at their accompts and so it hath been heretofore allowed in the King's-Bench And as to that that Dawbeny onely hath given allowance to this accompt the same is good enough If I promise to two to doe any act the one of them may discharge me from it and that by word for it is but a personal thing Two joint-tenants of a Manor grant the Stewardship thereof to one and 20 l. per ann for the exercise of it if the one discharge him it is a good discharge as to the service but yet he shall have his Fee If the Lord of the Manor grant the Stewardship thereof to another taking 10 l. per ann of the issues and profits of his Court there for his Fee and afterwards the Lord dischargeth the Steward the same is void for it is a disadvantage to the Steward for he cannot have his Fee if no Courts be holden but if the Fee be limited to issue out of Lands there such discharge is good for there the Steward shall have his Fee although that no Courts be holden there See 18 E. 4. 8. to that purpose Egerton Solicitor to the contrary although as hath been objected the matter of joint Merchant be but matter of inducement it is notwithstanding material and without it the Action will not lie In Debt upon Arbitrament The Plaintiff in his Declaration ought to shew the submission and although the Defendant pleadeth Nihil debet yet if the place of the submission be not shewed in the Declaration all is naught for although that it be but inducement yet it is a material inducement for if no submision no award and if no award no Debt and then no cause of Action The Case of 14 E. 3. cited before there the Accomptants by their Deed or jointly or severally accomptable at the pleasure of him to whom c. Also because it is set forth in the Declaration that they were joint Merchants of wares adventured into Barbary for the space of two years the Factor in praying of allowance ought to shew what wares were adventured into Barbary within the said two years Conspiracy is a thing odious and ought to be directly proved and it is not reason that that which he himself hath once allowed he himself shall after defeat it as here he attempts And he relied much upon the variance between the Conspiracy and the execution of it moved before by Coke where by the Conspiracy Isaac is made the Debtor with his four sons and in the Execution Isaac is made the onely Debtor and to that point he vouched the Case 3 4 Ph. Ma. betwixt Brown and Nevil That an award was to be performed Brown and Nevil's Case scil an award made between Joh. Brown for and in the behalf of John Moore on the one part and R. Nevil on the other part and did not shew that Moore made the submission and for that cause it was holden naught For Moore was a principal person in the award and Brown but a servant c. So in our Case for Isaac Popham Attorney General in an Action upon the Case The Plaintiff declares Quod cum the Defendant was indebted to the Plaintiff in 20 l. he promised to pay to the Plaintiff 20 l. Here it needs not that the Plaintiff shew in his Declaration the place or time in which the Defendant became his debtor for the promise is the principal matter and the other matter is but inducement So if A. in consideration that I at his request have married his daughter promised to pay to me 100 l. In an Action upon the Case brought by me upon this promise it is not necessary that I shew the place where I married his daughter In all personal things where two are chargeable to two the one may satisfie it and one may accept of satisfaction and bind his companion and yet the one cannot have an Action without his companion nor both onely against one 18 E. 4. 3. Two joint tenants of a Manor have one Bailiff of it the one of them assigns Auditors to the Bailiff who accompts and is found in arrearages the same is a good accompt and it is holden there that both c. may have Debt upon the arrearages of the accompt taken by the manner And if one may assign Auditors he may also take accompt and discharge the accomptant against his companion And he conceived That this allowance of the accompt by Dawbeny did not exclude him of his Actions but rather gave him cause of Action Nam Laesus non esset nisi credidisset and the Bailiff of my Husbandry who bargains and sells for me if upon his accompt to me he alledgeth and surmiseth that he hath sold my Cattel to one who is decayed and upon that surmise I allow his accompt afterwards Re comperta I shall have an Action of Deceit And in this very Case at the Bar it was holden in the King's-Bench That Dawbeny notwithstanding his allowance of this false accompt should have his Action c. Note that afterwards viz. Trin. 32 Eliz. The Iudgment given for Dawbeny was reversed CI. Sir William Waller 's Case Trin. 31 Eliz. In the Exchequer IN this Case it was moved by Winter 3 Len. 259. 4 Len. 44. Post 87. That if one hath Iudgment in Debt and upon that within the year and day sues a Capias ad satisfaciendum although that he doth not prosecute the same by the space of two or three years yet when he pleaseth he may proceed thereupon and he shall not be put to a Scire facias for a Writ of Execution once sued forth shall be a continual claim and the party shall never be put to a Scire facias and of such opinion was Philips Manwood I grant that if one hath sued forth a Writ of Execution and that be continued by Vicecomes non misit breve for two or three years yet the Plaintiff may proceed thereupon and shall not be put to a Scire facias but if such Writ be sued forth and not continued but discontinued by a year and a day he shall be put to a Scire facias for it is negligence of the Plaintiff of not continuing of it which within the year and day he might without Order of the Court but after the year not by any Order of the Court c. CII Griffin 's Case Trin. 31 Eliz. In the Exchequer IT was holden in this Case That if Lessee for years of a Messuage grants totum Messuagium suum the Grantee hath but at Will but if he grant all his Interest and Estate in such a Messuage then the whole Lease passeth and so it was said to have been lately
where the Case was That Davis being Lessee for years devised that his Wife should have and occupy the Land demised for so many years as she should live nor unto the Case of Paramour and Yardley 21 Eliz. Plow 539. for there the Lesse devised That his Wife shall have the occupation and profits of the Lands untill the full age of his Son For in these two Cases the Land it self is quodam modo devised but in our Case all the Estate is devised i. the Lease it self And also in those two Cases a certain person is assigned and named in the Will who should take the residue of the term which should be expired after the death of the Wife But in the Case at Bar there is not any person certain appointed c. but the Devise as to that is conceived in general words to Children unpreferred therefore neither any possibility nor Remainder in any person certain therefore all the term is wholly in the Wife and then she might well dispose the whole But all the Court was to the Contrary and that in this case the possibility should rise well enough to the death of the Wife to that Daughter unpreferred Another matter was moved If the said term being sold in the possession of the Wife of the Devisor by force of the Execution aforesaid If now the judgment being reversed the sale of the term be also avoided for now the party is to be restored to all that which he had lost And it was argued by Coke That notwithstanding the reversal of the Iudgment the sale did stand good for the Iudgment for the Plaintiff in a Writ of Error is That he shall be restored to all that which he hath lost Ratione judicii praedict and the Iudgment was That the Plaintiff should recover 140 l. and therefore by the Iudgment in the Writ of Error he shall be restored to so much but the mean act scil the sale of the Lease shall stand and shall not be defeated or avoided As 7 H. 6. 42. A Statute Staple is bailed in Ouster le main the Conusee brings Detinue against the Bailee and hath Iudgment and recovers the Statute and upon that hath Execution The Baylee brings a Writ of Error and reverseth the Iudgment given in the Detinue yet the Execution shall stand and Audita Querela doth not lie for the Conusor And see 13 E. 3. t. Bar. 253. Accountant found in Arrearages committed to the next Gaol escapes and reverseth the Iudgment given against him in accompt by an Ex parte talis yet the Action upon the escape lieth and the Court as to that point all agreed but that point did not fall in Iudgment for by the sale nothing shall pass but the interest in praesenti which was in the Wife of the Devisor but the possibility to the children unpreferred was not touched thereby And afterwards the Iudgment was affirmed CXVI Edwards and Halinder 's Case Mich. 36 Eliz. In the Exchequer RIce Edwards brought an Action upon the Case against Halinder See the Case reported in Popham's Reports fol. 46. very short but not with the Arguments and declared That whereas one Banister had demised unto the Plaintiff a Cellar to have from week to week Quandin ambabus partibus placuerit And also whereas the said Banister had leased to the Defendant a Shop directly over the said Cellar there the Defendant had laid so great a burthen upon the floor of the said Shop that there by the said floor fell down and brake certain vessels of the Plaintiff's full of Wine by reason whereof the Plaintiff lost his Wine to the value of c. to his damages c. The Defendant said That before the charging of the floor ut supra The said floor had sustained greater weight and farther that the said Banister let unto him the said Shop for to lay there the weight of 30 Tun and he had laid there but the weight of 12 Tun and also that the Walls of the said Cellar are so weak that the floor of the said Shop fell by reason thereof upon which there was a Demurrer in Law. It was argued by Godfrey for the Plaintiff Where injury or wrong is done unto any the Law gives remedy to the party grieved and although that the Shop was let unto him to lay wares there which he hath done and that it was not his intent to surcharge the said Warehouse although the event be contrary yet forasmuch as by the laying of wares there a wrong and damage follow to the Plaintiff the Defendant shall be punished for the rule is Sic utere tuo ut alienum non laedas If I have a house and another buildeth so high over me that rain-water descends and falls from his house upon my house an Action upon the Case lieth See F. N. B. 184. So if by his building he stops my light as it was lately adjudged in the King's-Bench in the Case betwixt Bland and Mosely See 6 E. 4. 7. 8. Damages recovered for a wrong done against the will of the party and see other Cases upon this Learning 13 H. 4. t. Action upon the Case 48. The Plaintiff had sold certain trusses of Hay to the Defendant within such a Meadow to be carried away from the said Meadow within a certain time but the Defendant let the Hay lie there without carrying the same away so it putrified the Meadow by reason whereof the Plaintiff lost the profit of his Meadow for a great time and thereupon brought an Action of the Case against the Defendant and the Action was adjudged maintainable See 22 E. 4. 8. where the owners of the Plough in turning of the Plough according to the custome in the common fields upon the Land of another one of the Plough Cattel against the will of the driver takes a mouthfull of Grass the same is justifiable but if the driver of the Cattel suffereth the same to continue an Action will lie against him So 22 E. 4. 49. Where I am bound to enclose my Land against another and in default of enclosure the Cattel of the other escaped into my Land and Close I shall not punish him but if he after notice doth suffer them to continue there he shall be punished although it be through my default Also it is alledged in our Declaration That the Defendant intending to hurt and spoil the Plaintiff's Wines did lay such a weight c. And the Defendant answers thereunto That the floor fell in default of repairing of the walls of the Cellar or for the ruinousness of them where he ought to have pleaded farther Absque hoc that the Shop was surcharged with the intent to hurt the Plaintiff's Wines In an Action upon the Case upon a Trover The Defendant pleads that the goods whereof c. were pawned unto him for the security of certain money not yet paid The same is no plea without saying farther Absque hoc that he did convert c. See
them away and that he had offered that matter by way of Plea in the Spiritual Court but they there would not allow of it And the Court was clear of opinion That the suggestion was good for if the Parishioner setteth out his Tythes and the Parson will not take them or if they be destroyed by Cattel by his Laches he shall not have Tythes again and therefore if the Ecclesiastical Court will not allow that Plea it is reason that the party have a Prohibition for after severance transit decima in Catalla But it was said by the Court That if the Parishioner doth set forth his Tythes and takes them again he may be sued for Tythes in the Spiritual Court and the setting forth shall not excuse him CXXV Walter against Pery and Springe Mich. 32 Eliz. In the King's-Bench WAlter brought a Scire facias against Pery and Springe Sureties for one Brook upon Bail in an Action of Debt The Defendants pleaded the death of Brook before Iudgment given against him And all the Iustices except Wray held that the Plea was not good for it is a surmise against the Iudgment for Iudgment cannot be given against a dead man. Wray The same is Error in fact and of such Error the party may have advantage in this Court. Gawdy The Surety cannot take advantage of Error nor plead it for he is a stranger to the Record Wray He may plead that the Defendant is dead after the Iudgment quod fuit concessum but it was ruled That the Defendants should be sworn that their Plea was true CXXVI Aldersley and Duparrie 's Case Mich. 32 Eliz. In the King's-Bench IN Debt upon an Obligation bearing date 4. Julii 30 Eliz. The Defendant pleaded that it was endorsed with condition to pay 50 li. before 15 Octob. 31 Eliz. and pleaded that he had paid it before the 15. of Octob. aforesaid scil the ninth of June 30. Eliz. which is three Weeks before the date of the Obligation upon which the Action is brought And they were at Issue That the Defendant Non solvit before 15 Octob c. And the Iury have found That the Defendant had not paid it before 15 Octob. and that matter was assigned for Error for that Plea is contrary and repugnant in it self to alledg the payment before the date of the Obligation But it was moved That here the day of payment is not material and but matter of surplusage for the Issue is Whether the Defendant paid the money before the 15. day of October and the Iury have found the negative so as the day in the Scilicet is not material and the alledging of that is matter of surplusage As 20 H. 6. 15. Trespass Quare clausum fregit herbam consumpsit continuand transgress from such a day usque ad diem impetrationis brevis praedict Scilicet 14 F. 17 H. 6. whereas the date of the Writ fuit 12. Octob. 17 H. 6. scil the October before February But it was not allowed for the day of the Writ brought is certain enough and the mistaking in the Scilicet is not to any purpose Wray Payment before the day is not a good Plea if he doth not shew the day and place It was adjourned CXXVII Parker and Burton 's Case Trin. 31 Eliz. In the King's-Bench IN an Action upon the Case for slanderous words scil That the Plaintiff was perjured The Defendant doth justifie That whereas a suit was prosecuted in the Exchequer-Chamber at Westminster betwixt the Defendant and another and from thence a Commission was awarded out of the said Court to divers persons to examine certain Witnesses at B. in Berk. and there by virtue of the said Commission the Plaintiff was deposed false deposuit praetextu cujus he spake the said words Antea 811. The Plaintiff replicando saith De injuria sua propria absque tali causa upon which Issue was joined and tried in Berk. and found for the Plaintiff And it was moved by Coke in Arrest of Iudgment That the said Issue ought not to be tried in Berks onely but by both Counties Mid. and Berks for all the matter of justification doth arise out of both Counties the Suit and the Commission which was in Midd. and the Execution of the Commission and the Oath which were in Berks all which matters is but one Case as 2 H. 7. 3. and 4. Atkinson The Trial is well for the manner for the matter of the justification is the Perjury and the Suit and Commission are but induction and conveyance to the Action Also the Defendant hath not shewed that the Exchequer-Chamber is in the County of Midd. as he ought As where a man pleads a thing done in any Court except in the Common-Pleas he ought to shew in what County the said Court was at the time that such thing was done for Communia Placita teneantur in loco certo Gawdy and Wray When the Defendant doth justifie by reason of the Perjury and the Plaintiff replies without such cause the same amounts to as much as if he had traversed the Perjury which being supposed to be committed there shall be tryed there Coke It was the Case of one Loveday 25 Eliz. In an Action upon the Case for slanderous words the Defendant did justifie by reason of a Robbery committed by the Plaintiff in another County and the Plaintiff pleaded De son tort demesne sans tiel Cause the same shall be tryed by both Counties See 2 H. 7. 3. Also it was moved that here it is not shewed in what County the Exchequer Chamber is Admit that it be in Berks yet it ought to be tryed by both Counties and that was Chelderlie's Case And although it be not shewed in what County the Exchequer Chamber is the Plaintiff had Iudgment to recover and the Tryal was held good enough CXXVIII Sir Tho. Bacon 's Case Hill. 31 Eliz. In the King 's Bench. A Writ was awarded out of the Court of Admiralty against Sir Thomas Bacon and Sir Thomas Heyden to shew cause whereas the Earl of Lincoln late High Admiral of England had granted to them by Letters Patents to be Vice-Admirals in the Counties of Norfolk and Suffolk why the said Letters Patents ought not to be repealed and adnulled and so the said Writ was in the nature of a Scire facias And now it was made by Coke Postea 114. That although the Admiral had but an Estate for life yet the Patents did continue in force after his death As the Iustices here in the Common Pleas although they have their places but for life yet they may grant Offices which shall be in force after their deaths c. And because this matter is determinable at the common Law he prayed a Prohibition for in the Admiral Court they will judge according to the Civil Law and the Court gave day unto the other side to shew cause unto the contrary or otherwise a Prohibition should be awarded CXXIX Weshbourn and Mordant
's Case Mich. 31 Eliz. In the King 's Bench. IN an Action upon the Case the Plaintiff declared 1 Cro. 291. 1 Len. 247. 3 Len. 174. That whereas he was possessed of a parcel of Land called the Parsonage lying adjoyning to a certain River from the 29 of May 29 Eliz. untill the day of the bringing of this Writ the Defendant had the said twentieth day of May stopt the said River with certain Loads of Earth and so it continued untill the fourteenth day of February by which his land was drowned and so he had lost the profit of it by that time And it was moved in Arrest of Iudgment That upon the Declaration there doth not appear any cause of Action for the Plaintiff hath made Title to the Land drowned from the twentieth of May so as that day is excluded and the Nusance is said to be made the twentieth day and so it appeareth the Nusance was before the possession of the Plaintiff and if it were so then cannot he complain of any wrong done before his time To which it was answered That although the stopping was made before his possession yet the continuance of the same is after and a new wrong for which an Action lieth as 5 H. 7. 4. It was presented That an Abbat had not cleansed his Ditch c. by reason of which the Highway is stopt The Successor shall be put to answer to the said Indictment by reason of the continuance of it And see that continuation of a Nusance is as it were a new Nusance 14 and 15 Eliz. 320. And it may be that the Plaintiff was not damnified untill long time after the twentieth day of May scil after the stopping And the words of the Writ here are satisfied and true And afterwards Iudgment was given for the Plaintiff CXXX Trusto and Ewer 's Case Pasc 31 Eliz. In the King's-Bench 1 Cro. 23. IN this Case it was agreed for Law That if a Controversie be betwixt two for the Title of a Lease for years and they submit the matter to Arbitrement and the Arbitrators award that one of them shall have the term the same is a good Gift of the interest of the term See 12 Ass 25. 14 H. 4. 19. 24. But if the Award be that the one shall permit the other to enjoy the term the same is no Gift of the interest therein See as to the Arbitrement 9 E. 4. 44. CXXXI Andrew 's Case Pasc 32 Eliz. In the King 's Bench. 1 Cro. 214. IN the Case of Andrews of Grays Inn it was holden by Gawdy and Fenner Iustices That if a Lease for years be made by Deed indented with these words demisi ad firmam tradidi That upon that Writ of Covenant lieth against the Lessor if he himself entreth upon the Lessee but contrary if a stranger enter if it hath not clause of Warranty For by Fenner when Covenant is brought upon that word Demisi the Plaintiff shall recover the term it self but not damages and that cannot the Plaintiff do when a stranger entreth and that was holden for clear Law See 9 Eliz. Dyer 257. A covenant against the Heir in such case CXXXII Bigg and Clark 's Case Hill. 32 Eliz. Rot. 549. In the King 's Bench. IN an Action upon the Case in the Court of Hertford the Plaintiff declared How that the Defendant hired a Horse of the Plaintiff to carry three Bushels of Coals from Ware to his House in Hertford and that the Defendant in consideration thereof did promise the Plaintiff quod ipse in via praedicta nollet onerare the said Horse aliter than with the said three Bushels of Coals And the Plaintiff said That the Defendant had loaded the said Plaintiff's Horse with a greater weight than with the said Coals and so had hurt his Horse upon which the Plaintiff recovered And Error was brought and the Error assigned was this That it is not specially shewed how the Defendant aliter loaded the said Horse with what thing As 19 H. 6. In Debt against Executors they plead That they have onely expended such a sum of the Goods of the Testator in Funeral expences absque hoc that they have administred aliter vel alio modo the Plaintiff cannot Reply and say that they have administred aliter vel alio modo without shewing how Another Error was assigned because it is not certainly shewed how the Horse was hurt but that Exception was not allowed for it is not the point of the Action but for the first matter the Iudgment was reversed CXXXIII Toley and Windham 's Case Trin. 32 Eliz. In the King 's Bench. IN an Action upon the Case the Plaintiff declared 1 Cro. 206. 3 Len. 150. That whereas certain controversies were betwixt the Plaintiff and Defendant for the profits of certain Lands which the Father of the Defendant had taken in his life time and whereas he had brought a Writ of Subpoena out of the Chancery against the Defendant for the said profits taken by the Father of the Defendant in his life intending to put in a Bill against the Defendant in the said Court The Defendant in consideration that the Plaintiff would stay his intended Suit promised That if the Plaintiff can prove that the Father of the Defendant took the profits or had the possession of the said Land under the Title of the Father of the Plaintiff that he should pay to him for all the said profits And farther declared That he had proved that his Father had taken the profits under the Title of the Father of the Plaintiff Coke took up Exception to the Declaration because it is not shewed How and by what means under the Title of the Father of the Plaintiff he took the profits as by Lease for that is traversable Gawdy Iustice The Son hath not any cause of Action or Suit for the profits taken in the time of the Father therefore the staying of Suit arising from such matter is not any consideration But as to the other Exception because it is not shewed how and by what Title he took the profits it is well enough As unto the other Exception it was moved at another day that there was a Case betwixt Stone and Withypool An Infant promiseth to pay a simple Contract Stone and Withypool's Case and thereupon there was a Suit in the Chancery but it was holden that it was not maintainable for the promise was void because there was no consideration And it was agreed by all the Iustices that this Action would not lie for the Plaintiff hath declared That where certain Controversies were betwixt the Father of the Defendant and him scil the Plaintiff himself for the profits of certain Lands which the Father of the Defendant had taken in the time of the Father of the Plaintiff c. and he doth not shew that he himself is Heir or Executor of his Father and therefore the Chancery cannot give him any remedy And on the other
Hempston as Bailiff of Cary Executor of Sir William Cordel distrained for the arreages upon the possession of Sands and it was clearly holden by the whole Court That the possession of the said Copiholder was not chargeable to distress upon this matter for the Copiholder is not in by him who ought immediately to pay the Rent but is also in by the custome Note by some That the possession of a Copiholder is not liable to the Executor by the Statute of If it be so that the Lord of the Manor be within the degree limited by the said Statute CXLIII Hooper 's Case Trin. 29 Eliz. In the Common-Pleas HOoper of Salisbury was brought to the Bar to wage his Law in an Action of Debt and upon examination the matter appeared to be That the Defendant was indebted to the Plaintiff upon a simple Contract and upon communication betwixt them it was agreed that one J. S. should become bounden to the Plaintiff in an Obligation for the said debt to be paid at a day certain which J. S. became bound accordingly and the Defendant was also bound to the said J. S. in a counter-bond for to save him harmless against the Plaintiff And the Court was clear of opinion that upon this matter the Defendant could not safely wage his Law for by this Obligation made by a stranger to the Contract the Contract upon which the Action is brought is not determined And also here the Obligation was made after the Contract But if J. S. had been bound Ut supra upon the Contract it had been otherwise and upon that reason the Case of one Pudsey was adjudged Pudseys Case Where upon the Contract a stranger to the Contract being present made promise to enter into a Bond unto the party c. for the paiment of the money agreed upon the Contract and afterwards became bounden accordingly in that Case the Contract was determined because the Obligation was pursuant to the Contract and in the principal Case the Court would not admit the Defendant to wage his Law although he earnestly desired it CXLIV Knevit and Taylor 's Case Trin. 29 Eliz. In the Common-Pleas KNevit enformed against Taylor in the Common-Pleas upon the Statute of Usury and the parties were at issue and the matter depended four Terms untried after issue was joined and now the Defendant prayed for his own expedition that he might have Nisi Prius with Proviso as the course is in the Exchequer in such case to send Commissions into the Countrey where the Information is laid for the trial of the issue joined in the said Court and that at the suit of the Defendant And it was much doubted if the Court might grant such Nisi Prius because the Queen is Quodammodo a party to the suit And by Fleetwood Serjeant The common course is so But where the Queen her self is merely party no such Nisi Prius shall be granted and he said That the Informer might be Nonsuit although that the Queen be in such manner party Nelson Prothonotary said That he never saw such a Precedent Postea 116. See F. N. B. 241. CXLV Alford and Lea 's Case Trin. 29 Eliz. In the King's-Bench 1 Cro. 54. Post 181. ALford brought Debt upon a Bond against Lea and the Case was That the parties were bound the one to the other upon Condition to stand to the Award of B. and C. who award that the said Lea before such a Feast shall make a release to Alford but no place assigned where the release shall be delivered to the Plaintiff Lea Before the said Feast sealed a release according to the award and delivered the same to one Pine to the use of the Plaintiff who delivers it to one Mason one of the servants of Alford the Plaintiff who two or three dayes after offers it to Alford but he refused it It was holden by Wray That the award upon this matter was well performed notwithstanding the refusal of Alford See Tawe's Case 1 Eliz. Dyer 167. A. enseals Quoddam scriptum Obligat and delivers the same to one C. for to deliver it to the Obligee who delivered it accordingly as the Deed of A. who refuseth to receive it and after gets the Obligation and recovers upon it CXLVI Marsh and Rainsford 's Case Trin. 30 Eliz. In the King 's Bench. IN an Action upon the Case the Case was That a communication was had betwixt the parties That the Plaintiff should marry the daughter of the Defendant in consideration of which the Defendant promised the Plaintiff to give him 200 l. but they could not agree upon the days of payment of it after which they stole away the Defendant's daughter and secretly married her without the Defendant's knowledge yet afterwards the Defendant gave his consent to it 1 Leon. 102. and allowed of the said marriage and in consideration of the said marriage promised to pay the Plaintiff 100 l. Egelton Solicitor General for the Defendant That the Action upon this matter will not lie for here the consideration is precedent to the promise whereas the consideration in such cases ought to be future and subsequent and as the Case is here the Plaintiff is out of the course of consideration of marriage for he hath stolen away and married his wife without the knowledge or consent of her father See such Case 10 Eliz. Dyer 272. The servant of one A. is arrested in London and two friends of his Master bail him and afterwards A. promiseth to them for their friendship to save them harmless from damages and costs c. It was holden that the Action doth not lie for here is not any consideration for the bailment was of their own heads and it is executed before the promise But if the Master before the enlargement of his servant had requested the Plaintiff for to bail his servant and he had so done the Action would have lien Wrey Iustice Although the consideration be precedent yet if it were made at the instance of the other party the Action would have lien But here the natural affection of the father to his daughter is sufficient matter of consideration If one cometh to a Serjeant at Law to have his counsel and the Serjeant doth advise him and afterwards the Client in consideration of such counsel promiseth to pay him 20 l. an Action lieth for it And so Popham said it had been adjudged in the Exchequer And it is the common Practice in this Court in consideration Quod querens deliberasset to the Defendant c. He promiseth to pay him so much and as it was late adjudged betwixt Style and Smith If a Physician who is my friend hearing that my son is sick goeth to him in my absence and helps and recovers him and I being informed thereof promise him in consideration c. ut supra to give him 20 l. an Action will lie forthe money and afterwards in the principal Case Iudgment was given for the Plaintiff CXLVII
not pay them and the creditors sue them in the Spiritual Court they shall not have a Prohibition Vide 6. H. 3. Prohib 17. which Anderson Vehementer negavit and afterwards the Iustices looked and advised upon the Indenture and found that the indenture and Obligation were made to the friends of the mother of the daughters and not to the daughters themselves to whom the Legacies were give and bequeathed and therefore were of opinion that a Prohibition did not lie CLXV Thorp and Tomson 's Case Hill. 30 Eliz. In the Common Pleas. Rot. 336. IN Ejectione firmae It was found by special Verdict That one Thimblethorp was seised of the lands where c. and by Contract sold the same to Thorp but no assurance was yet made and afterwards Thorp before any assurance made sold likewise the said lands to Tomson and afterwards Thimblethorp made assurance thereof to Tomson and afterwards Tomson being seised devised the Lands to his younger son Dyer 376. by these words I bequeath to R. my son all the lands which I purchased of Thorp whereas in speaking the truth according to Law he purchased them by immediate assurance of Thimblethorp although he did contract with Thorp for the same And the opinion of the whole Court was without argument either at Bar or at the Bench That the Devise was good for in the repute of the people they preseised of Thorp for Tomson paid the monies for the same to Thorp and the Court commanded Iudgment to be entred accordingly And afterwards Exception was taken to the Verdict because it is not found by what service the land devised was holden Socage or Knight-service nor that the Devisor is dead and these were holden to be material Exceptions and for that cause the Iudgment was stayed and afterwards the Verdict was rejected and a Venire facias de novo awarded CLXVI Grove and Sparre 's Case Hill. 30 Eliz. In the Common Pleas. AN Action of Trespass was brought by Grove against Sparre Process continued untill Sparre was outlawed and now it was moved unto the Court to avoid the Outlawry That the original Writ and all the Iudicial Process thereupon are directed Vice-Com Wigorn. and in the Filazar's Roll in the Margent is written Hereford and in the body of the said Roll is written Et praedictus Grove obtulit se quarto die post Et Vicecomes modo mandat quod praedictus Spar non est inventus c. Ideo praeceptum est Vicecom c. and at the Capias retorned it is entred in the Roll as before Hereford whereas the Capias is directed Vicecom Wigorn. as of right it ought to be and the Roll was perused by the Court and it was ut supra and that without any suspicion of Rasure for which the Court gave day to the Queens Serjeants to advise themselves to maintain the Outlawry and the Defendants Council prayed That a Recordatur be made in what Estate the Roll now is for doubt of amendment by way of Rasure or otherwise which was granted by the Court. CLXVII Rushton 's Case Mich. 33 Eliz. In the Exchequer RUshton was indebted to the Queen in 200 marks See this Case vouched in C. 4 part in Palmer's Case 3 Len. 204. upon which issued an Extent against him out of the Exchequer to levy the said sum to the Sheriff of Suffolk and it was found by Inquisition That Rushton 22 Junii 22 Eliz. was possessed of a Lease for the term quorundam annorum adhuc venturorum and the debt of the Queen did begin 12 Febr. 17 Eliz. Exception was taken to this Office because that the term is not certainly found but generally quorundam annorum and it was said by Coke That the Office was good notwithstanding that Exception for the Queen is a stranger to the Lease and therefore ought not to be forced to find the precise certainty which see in Partridge's Case in Plowd The Defendant had made a Lease Pro termino quorundam annorum contra formam statuti Also Rushton came not to the Lease by Contract but by compulsary means as by Execution c. And here we are not in the Case of pleading but of an Office where such precise form is not requisite As if it be found by Office that J. S. was seised in tail without shewing of whose gift the same was it is good so an Indictment De morte cujusdam hominis ignoti the same is good but such Endictment taken before the Coronor is not good And that a Lease for years may be extended see 21 Ass 6. If a man be indebted to the Queen being a Lessee for years and afterwards before any Extent comes sells his term the same cannot be extended after And here it appears That this Lease was to begin at a day to come and that the Lessee did enter before the day by which he was a Disseisor and so he said he had lost his term Tenant for the life of another is disseised and dieth he remains a Disseisor and the occupancy doth not qualifie such disseisin And afterwards the Inquisition for the incertainty aforesaid was holden void and a new Commission was awarded CLXVIII Holland and Boin 's Case Mich. 29 Eliz. In the Common Pleas. IN a Replevin by Thomas Holland against William Boin's 3 Len. 175. 1 Len. 183. Ow. 138. who made Conusans as Bailey to Thomas Lord Howard and shewed that the Prioress of the late dissolved Priory of Hollywell was seised of the Manor of Priors in the County of Hertford and granted the same by words of Dedi Concessi pro certa pecuniae summa to Thomas Audley Chancellor of England and his Heirs who entred and died seised and that the said Manor inter alia descended to Mary daughter and Heir of the said Thomas Audley who entred and also died seised by force whereof the said Manor descended to the said Thomas Lord Howard c. and shewed that the said conveyance by the prioress to Audley bore date 4 Novemb. 29 H. 8. and then enrolled in the Chancery The Plaintiff in Bar of the Avowry shewed that after the making and enrolling of the said Conveyance the said Prioress Leased the said land to Sir H. Parker for 99 years and conveyed the said land to him and shewed farther That the said Conveyance specified in the Conusans was primo deliberatum 4 Nov. 31. H. 8. Absque hoc that the said Prioress the said 4 Novembris 29 H. 8. dedit concessit the said Manor to the said Audley upon which it was demurred in Law and the Court was clear of opinion That the averment of primo deliberatum against a Deed enrolled ought not to be reversed for by the same reason it may be averred never delivered and so upon the matter Non est factum And it was farther objected That bargain and sale by a Corporation is not good for a Corporation cannot be seised to another use and the nature of such Conveyance is to
Covenant wherein the breach was assigned was That if R. W. Brother of the Plaintiff should say Make assurance of such a Manor to the Defendant as the Council learned of the said Defendant should advise Then if the Defendant pays unto the Plaintiff 50 l. the Obligation to be void The Defendant by advice of Council demanded a Release with Warranty c. And by Periam and Windham The same is not any Assurance but a means to recover in value Anderson contrary That it was a Collateral Warranty c. CLXXIII Cropp and Hambleden 's Case Hill. 28 Eliz. In the King 's Bench. 1 Cro. 48. IN Trespass by Cropp against Erasmus Hambleden upon the special Verdict the Case was That one Martin Hastings was seised of the lands where c. in the right of his wife for the life of the wife and that they both did Lease unto the Defendant for years rendring Rent payable at the Feast of S. Michael and the Feast of the Annunciation c. with clause of re-entry if the Rent be behind by a Month after any of the said Feasts and after the feast of S. Michael 26 Eliz. and before the Month expired the Lessee the now Defendant sent his servant unto the house of the Lessor for to pay to him the Rent then due the servant went unto the house of the Lessor and there asked for him to whom it was answered by one Mary Briggs daughter of the wife of the Lessor who there dwelt in the said house with her mother that the Lessor was not at home for which the said servant delivered the said Rent to the said Mary requiring her to deliver the same over to the Lessor upon his retorn to the house in the name of his servant Mary reserved the said Rent and upon the retorn of the Lessor at his house told him all the matter aforesaid and that the servant of the Lessor the Defendant had required her to tender the said Rent to the Lessor in the name of the Defendant and thereupon offered and tendered to him the said Rent and the Lessor refused it And the Iury found That the third half year before the tender mentioned before the Lessor commanded the said Mary to receive the Rent then due who did accordingly and that the next half year then following the said Mary did receive the said Rent without commandment of the Lessor but after the Lessor agreed unto it and that the immediate half year before this tender in question the Defendant paid the Rent then due to the Lessor himself who received it And it was the opinion of Wray chief Iustice that this tender was good and it is not like unto the case of an Obligation for there the Obligee cannot have an Action of Debt before the last day but here the Lessor might have distrained or have had an Action of Debt before the Month expired and so the Lessor is bound by this tender and by Gawdy Iustice This tender cannot be said a tender by a stranger for here Mary came in privity of the servant of the Lessee and as it is found by Verdict Mary tendered it to the Lessor as being requested by the servant of the Lessee And afterwards upon consideration had betwixt the Iustices themselves the Iustices viz. Clench Gawdy and Wray for Shute was then sick it was clearly resolved against the Plaintiff and that the said tender as it is found in the Verdict is a good and sufficient tender and the Lord Wray delivered the reason as before and farther said That if the said Rent had been reserved payable at the feasts aforesaid or within a Month after each of them there the tender as above had not been good nor should bind the Lessor for in such case the Lessor could not distrain or have an Action of Debt for the said Rent before the Month expired And this is a case of extremity and deserves no favour and here is no mischief to the Lessor for he might have had his Rent in due time if he would and his captious refusal shall not avail him And Iudgment was given accordingly CLXXIV Bostock and Covert 's Case Trin. 33 Eliz. In the Common-Pleas BOstock and his Wife brought a Writ of Dower against Covert son and heir of her former Husband who pleaded That the Husband of the Demandant was seised of Lands amounting to the number of 300 Acres and held the same by Knights-service and died seised after whose death by virtue of the Statute of 34 and 32 H. 8. he entred into 100 Acres of the said Lands as the third part of the said Lands descended and held the same in severalty being the third part of the clear yearly value of the whole discharged of a Dower and that the Wife ought to have all her Dower out of the two parts devised And Anderson said That the Plea was not good for the heir who will take advantage of the Statute in that point ought to enter generally as Tenant in common with the Devisee and then in a Writ of Dower it is a good Plea so if after his entry as Tenant in common Partition be made betwixt him and the Devisee such a Plea is good but here he hath entred severally into a third part distinct from the residue and so hath ousted the Devisee of a third part severally for which cause he cannot have advantage of this Plea To which the rest of the Iustices Non contradixerunt CLXXV Sir John Southwel 's Case Pasch 37 Eliz. In the Exchequer 3 Len. 147. SIR John Southwel of the County of Lancaster 7 Julii 19 Eliz. made a Conveyance of his Lands to divers Feoffees and their Heirs upon condition that they should find him and his Wife and so many persons in his house c. prefer his Daughters in marriage pay his debts c. And if there fell out at the years end upon accompt made by the Feoffees any surplusage that then at the end of every such year they should answer such surplusage as should then remain in their hands unexpended of the Rents and profits of his said Lands with clause of revocation c. Afterwards the said Conveyance being in force came the Statute of 23 Eliz. concerning Recusants upon which Statute the said Southwel is now endicted and afterwards upon a Commission issuing out of the Exchequer to the Sheriff of Lancaster to enquire of the Lands of the said Southwel although against the said Conveyance it was given in Evidence That after the said Conveyance the said Sir John Southwel had granted Trees from off the said Lands and had received Fines and Incomes for Leases c. yet the Iurors charged to enquire would not find that the said Sir John Southwel had any Lands c. And by special command from the Queen it was referred out of the Exchequer to all the Iudges of England If the Lands of the said Sir John Southwel conveyed as aforesaid were subject to the said
engrossed because that now the Divorce is avoided for Henry in his second marriage hath issue therefore there is no perpetua frigiditas c. but at the last it was engrossed because the sentence of the Divorce doth continue in its force and then Humphrey born in the second marriage is the first son of Henry lawfully begotten and so capable of the use to him limited upon the Feoffment of Henry 22 E. 4 Fitz. Consultation 51. by Catesby where my father and mother are divorced without lawfull cause and afterwards they marry themselves elsewhere and die the said Divorce as long as it is in force shall bind me in point of inheritance and I cannot have an Action as heir c. during the Divorce is in force For the Divorce being a spiritual Iudgment shall not be reformed but in the spiritual Court and therefore this sentence of Divorce Causa perpetuae frigiditatis as long as it is in force not repealed or reversed shall bind all persons But in some cases such a Divorce shall not disable the party to sue as if a man bringeth an Action De muliere abducta cum bonis viri where after the trespass committed the husband and wife are divorced yet the Action lieth for this Action is not in the right but in possession onely and in such Action Never accoupled in legal Matrimony is not any plea but the Defendant ought to answer to the possession Not his wife for although they are divorced yet the Action lieth and if Iudgment is given in the spiritual Courts the Courts of the King shall receive and admit of them as long as they are in their force The Abbat of Fountain's Case 9 H. 6. 32. the custome of the Abby was That at every vacation of the Abbat the Monks should proceed to a new Election and that he who should be chosen by the greater number of the Monks should be Abbat and the Case was That upon such avoidance one A. was elected by the greater number of voices scil 22 Monks And B. was chosen by the lesser number scil 20 Monks but notwithstanding that B. entred and carried himself as Abbat by the Institution of the Visitor and made a Deed by consent of the Covent and died it was holden That the said Deed should bind the House for here is a spiritual Act scil the Institution of the Visitor which being in force shall bind us and our Law 34 H. 6. 38. upon contention betwixt two Patrons claiming the presentment unto a Church the Bishop awarded jure Patronatus which found for one of them upon which the Bishop admitted the Clerk of him for whom it was found by the jure Patronatus and afterwards the other party brought a Quare impedit and it was found for him Now this judicial Act done by the Bishop shall excuse the Bishop from any disturbance Fenner Serjeant contrary Although that the sentence of this Divorce be set down in peremptory and final terms as matrimonium cassum irritum nullum yet our Law shall respect the cause and ground of it scil Perpetua frigiditas c. and now it appeareth by the success of the second marriage scil the issue Humphrey that the cause and matter upon which the Divorce was grounded c. was an offence of the time and not of nature for he is now recovered and in as much as the Church hath erred in the sentence of this divorce which error is now apparent this Court shall adjudge according to the truth of the matter as the spiritual Law ought to have adjudged and not as they have adjudged And he cited Fox's Case 16 Eliz. The said Fox being Parson of a Church was deprived in the Parliament time for incontinency and by the same Parliament all incontinencies were pardoned Now upon the matter we are to adjudge this deprivation meerly void without any other spiritual act At another day the Case was argued by Walmsley Serjeant That the sentence definitive of the spiritual Court in cause of divorce causa frigiditatis should stand and he argued much in what manner the Law of the Church and the Law of the Law should determine marriage and he argued that the right of marriage was determinable by the spiritual Law and he said that such sentences ought to be passed by our Law and taken notice of and therefore he who pleads a Divorce ought to shew before what Iudge the Divorce is had to the intent the Iudges may know to what persons they shall write for the trial of it and it appears in our books That our Law takes upon it the Conusance of the competency of an Ecclesiastical Iudge which see 2 E. 4. 15 and 16. The Iudges of the temporal Courts of the King have determined That the Pope is not a competent Iudge within this Realm and it is true the Common Law doth yeild unto the Law of the Church the trial and determination of the right of marriage but the trial of the possession of the marriage retains to it self As if an Infant marrieth within the age of consent and afterwards at full age of consent doth disagree now the common Law shall determine that the same is not any marriage So 11 H. 4. 167. The temporal Court shall adjudge upon marriage in fact and in possession but if the party will plead 1 Len. 53 181. 3 Len. 129. That they were never accoupled in lawfull matrimony a Writ shall go unto the Bishop to certifie the same and in trespass De muliere abducta cum bonis viri and in Cui in vita c. this issue not his Wife is to be tried by the temporal Court of the King for the right of the marriage is not in question but it is sufficient if it were a marriage in fact and in possession See 44 Ass 12. 13. and see 21 H. 7. 39. The temporal Court shall determine of the marriage if void or voidable A Deacon marrieth a Wife that marriage is not void so of a Priest but if a man marrieth a Nun the marriage is void But in our Case here is a sentence definitive in a cause of Divorce in which Case it doth not belong to us to examine the cause but be the Divorce right or wrong it shall stand c. 10 E. 3. Bar. 296. Nisi sit quoad thor tantum vel causa castitatis And see by Shelley 28 H. 8. 13. If they of the spiritual Court give Iudgment in any cause be it true or false untill it be defeated or reversed it shall bind all the world See 22 E. 4. Fitz. Consultation 5. Corbet's Case 4 H. 7. 14. by Oxenbridge 18 E. 4. 30. by Chock and 9 E. 4. 24. He who pleads a Divorce ought to shew before what Iudge the Divorce was had but that is not to examine the matter but to know to what person the Court shall write for the trial of it It is true that in case of Resignation and Deprivation but in case
against a general Statute of which every one ought to take notice Periam When the Case was in the Common Pleas it was moved If of a sentence given by the high Commissioners an Appeal did lie and it was certified by Clark Doctor of the civil Law that it did for the Commissioners are as the Delegates of the Queen And as by the Canon Law one might appeal from the Delegates of the Pope unto the person of the Pope so now one may appeal from the high Commissioners to the person of the Queen See for that 24 H. 8. 12. Another Error was assigned because that the Commission gave authority to the Commissioners to adjudge upon confession of the party or upon the witnesses but here none of these two ways is found by the Verdict but sentence was given upon his Plea That he was sued in the Arches for the same cause and so they have not pursued their authority for the Act is That such Commissioners shall have authority by vertue of the said Act and of the said Letters Patents to exercise c. And they are directed by the Letters Patents that they shall proceed upon due proof had by confession or true witness to give sentence Periam Although they have not observed the due form prescribed unto them by the Letters Patents yet such sentence is not void Anderson If the party appeareth and will not answer it shall be taken pro confesso and he shall be condemned CCXVII Sir John Sand 's and Packsal Brocas 's Case Trin. 38 Eliz. In the Common Pleas. SIR John Sands brought an Action upon the Case against Packsal Brocas upon a Trover of goods and houshold-stuff The Defendant pleaded as to parcel that they were fixed to his Freehold in S. in Hampshire Absque hoc that he found them in other manner as to the part that the Plaintiff gave them to him at D. in Hampshire and as to the other part he pleaded Not guilty For the first part the Plaintiff caused it to be entred Non vult ulterius prosequi and took issue upon the two other and it was found for the Plaintiff by several Iuries in several Counties and damages and costs assessed by the Iuries and now the Defendant brought Error and assigned Error i. because the Plaintiff as to the first had entred Non vult ulterius prosequi which is a Non-suit and Non-suit in part is Non-suit in all Anderson It is a Question if this be a Non-suit The entry is Querens venit gratis concessit that as to the goods mentioned in the first Pleas Non vultulterius prosequi Ideo consideratum est quod nihil de iisdem versus the Defendant fiat est ille pleg in miseric the Defendant eat inde sine die Periam A Non-suit is when the Plaintiff is demanded and doth not appear but when he comes into Court and saith Quod non vult ulterius prosequi the same is a Retraxit Nelson Prothonotary Non-suit is upon default but here the Plaintiff appears and this is the usual form of entry of a Retraxit Another Error was assigned because both Iuries have assessed costs and Iudgment given according whereas the last Verdict ought to do it And where two Iuries are to try the issue the form of the entry after the first Verdict is Cesset executio untill the other issue be tryed Vid. 21 H. 6. 51. 36 H. 6. 13. Anderson Several issues cannot sever the costs although they may the damages for it is but one suit therefore but one costs and that is the reason that Iudgment shall not be given untill the last issue be tryed because that costs shall be but once assessed which was granted by the whole Court And by Periam The first Iury may assess costs for the whole suit Quod fuit concessum Coke Here are several Iudgments for the costs and although it be void for the later issue yet it is good for the first Periam How shall it appear unto us which Verdict was the first and which the last although that the one Verdict be entred of Record before the other the same doth not make that it was first given wherefore the whole shall be reversed CCXVIII Mich. 31 Eliz. In the Common Pleas. 2 Len. 224. A Man 30 Eliz. made a Feoffment in Fee to the use of himself for life and afterwards to the use of his first son and his heirs The father and the Feoffees before issue for money by Deed give grant and enfeoff J. S. and his heirs who hath not notice of the use The Tenant for life hath issue and dieth the issue entreth Glanvile The use limited to the first son is destroyed for without regress of the Feoffees it cannot rise and that the same is gone by their Livery See Plowden's Com. 340. And also he vouched the case of the Earl of Kent whereby the release of the surviving Feoffee a sleeping use was destroyed and could not afterwards be revived Harris The use may rise without entry of the Feoffees And he put a difference between uses created before the Statute and uses created after for in the first case they ought to enter and if they be disabled by any Act as in the case betwixt Gascoign and the Earl of Kent they shall never rise but in the later case all the authority and confidence is by the Statute out of the Feoffees and the uses contingent shall rise without aid of the Feoffees by the operation of the Law for the land is bound to the uses and charged with them As upon a Recovery in a Warrantia Chartae the land of the Defendant is charged pro loco tempore and according to the common experience in Conveyances for the payment of the Debts of the King as in the case betwixt Breden and Dennis The Debtor of the King makes a Feoffment in Fee to the use of himself and his heirs untill he makes default of payment of such a sum unto the King at such a day and upon default to the use of the King and his heirs Cooper There needs no entry of the Feoffees and he put the difference put before by Harris betwixt an use created before and an use created after the Statute And now the Feoffees have not any power to revive or destroy such cases but are onely as instruments to convey the uses for the use is created upon the Livery and is transferred by the Statute if the person to whom the use is limited be capable thereof at the time of the limitation thereof but if not the Law shall preserve the same and it cannot by any means be prevented And he put the case of Bro. Feoff to Uses 50. 30 H. 8. And there is a great difference betwixt an Vse limited before the Statute and after the Statute for now after the Statute the Feoffees have not any seisin whereof they may make a Feoffment And he put the case between Cheney and Oxenbridge Cheney leased to Oxenbridge for
in the house of Robert not by the Will but by descent and this Devise shall not take effect otherwise and the Devise as to that is void and then the Common Law shall hold place and that is to descend to the issue of the one sister and the surviving sister And here the survivor hath but an Estate for life in the house of Robert and then by the death of Robert the Fee-simple accruing to the surviving sister the moyety of her Estate for life is extinct And if one of the daughters had died without issue before Robert the house of such daughter had come to Robert and the other sister as coparceners for the son is to have all the Fee and a moyety of the same executed and a moyety expectant and the other sister should have a moyety for life and so the Devise not void And afterwards Iudgment was given against the husband of the surviving daughter CCXLIV Hurlston 's Case Hill. 29 Eliz. In the King 's Bench. 4 Len. 160. HUrlston brought a Writ of Error against the Queen upon a Iudgment given for the Queen in the County Palatine of Chester It was moved by Gawdy the Queens Serjeant that the Writ did not lye for he ought to sue to the Queen by Petition which see 23 E. 3. 22. A Writ of Error cannot be granted Absque speciali gratia Dom. Regis See also 22 E. 3. 3. And the case was That Iudgment was given for the Queen in a Scire facias to reverse the Patent of the Constableship of the Castle of Chester and by him in Chester there are many Courts King's-Bench Common-Pleas Exchequer Chancery And here a Iudgment or Decree in the Chancery cannot be reversed but by Parliament and so he conceived of a Iudgment given in the Chancery at Chester and it cannot be reversed in the King's-Bench Also they have a custome in Chester that they may reverse within certain Months the Iudgment before Clench There needs no Petition for both the Patentees claim from the Queen and whether there be Error or not the Queen is not prejudiced Coke There needs no Petition for it is now past for the Queens Attorney's hand is to it 11 Eliz. In one Haunce's case a Writ of Error was brought against the Queen and they were compelled to sue to the Queen by Petition Coke In the Exchequer If an erronious Iudgment be given for the Queen in a Bill of Intrusion the party shall have a Writ of Error against the Queen without any Petition It was the case of one Eliz. Mordant 15 Eliz. she brought a Writ of Error to reverse a Fine levyed by her during her minority against the Queen and the proceeding in it was stayed because she had not sued to the Queen by Petition first Wray Many Outlawries have been reversed by Error without any Petition and yet in such case the Queen hath an immediate interest CCXLV Gomersall and Gomersall 's Case Mich. 29 Eliz. In the King 's Bench. IN an Account The Plaintiff charged the Defendant as Bailiff of his Shop Curam habens administrationem bonorum The Defendant answered to the goods onely and said nothing to the Shop Tanfield moved the same matter for Error in arrest of Iudgment As 14. H. 4. 309 310. One charged another as Bailiff of his house Et curam habens bonorum in eo existen the traverse was That he was not Bailiff of the house Pro ut that is good and goeth to all but he cannot answer to the goods and say nothing to the house See 49 E. 3. 7. Br. Accomp 21. A man brought an Accompt against one as Bailiff of his Manor Habens curam of twenty Oxen and Cows and certain quarters of Corn And by Belknap If he have the Manor and no goods yet he shall accompt for the Manor and it shall be no Plea to say that the Plaintiff sold him the goods without traversing without that that he was his Bailiff to accompt render And as to the Manor he may say that the Plaintiff leased the same to himself for years without that that he was his Bailiff Another exception was taken by him That the Plaintiff chargeth him with moneys Ad merchandizandum And he traverseth that he was not his Receivor denarior ad computandum pro ut and so he doth not meet with the Plaintiff and so it is no issue And it is not helped by the Statute of Jeofailes 32 H. 8. but mis-joining of issue is helped by that Statute 19 Eliz. W. an Attorney of the Common-Pleas did charge another Attorney of the same Court with a Covenant to have three years board in marriage with the Defendant's daughter and he pleaded that he did not promise two years board and so issue was joined and tried and the same could not be helped by the Statute because it was no issue and did not meet with the Plaintiff So if one charge in the Debet detinet and he answers to the Detinet onely it is no issue and therefore it is not helped by the Statute In 29 H. 6. in trespass for entring into his house and taking of his goods the Defendant pleaded Non intravit and the issue was tried and damages given and because the taking of the goods was not also in issue all was void 4 E. 3. One shall not accompt by parcels because the Action is intire See 3 E. 3. 8. and Book of Entries 202. A Precedent 14 H. 7. That the Verdict was not full and did not go to the whole and therefore was void Hele Serjeant contrary And as to the first point he said That there is a Case in 9 E. 3. Accompt 35. where the Plaintiff chargeth the Defendant in accompt as Bailiff of his house and that he had the administration of his goods viz. Forty sacks of wooll and upon issue joined the Iury found that he was not Bailiff of his house but they farther find that he had received the forty sacks of wooll to render accompt of the same and the Plaintiff in that Case had Iudgment for the sacks of wooll although there was no Verdict found for the house See 5 H. 7. 24. Where if a Iury be charged with several issues and the one of the issues is found and the other not that the same makes no discontinuance or if one of the issues be discontinued yet it is no discontinuance as to the whole But admit the same be not helped by the Common Law yet he said it is helped by the Statute of 32 H. 8. of Jeofailes which is Non obstant discontinuance or miscontinuance Daniel to the same purpose And he said that the Books before cited of 14 H. 4. and 49 E. 3. are not ruled nor the Cases there adjudged in the one Book the Defendant pleaded That the Plaintiff gave the goods unto him and in the other Book that he sold the said goods unto him and demanded Iudgment of the Action And he said That it is no
good answer for they are Pleas onely before the Auditors and not in an Action upon Accompt and farther he said That although the Verdict be found but for part yet it is good for no damages are to be recovered in an Accompt In trespass it is true if one issue be found and not the other and joint-damages be given the Verdict is not good for any part but if several damages be given then it is good as it is ruled in 21 H. 6. Coke 26 H. 8. is That the Plaintiff cannot declare generally of an house Curam habens administrationem bonorum but he must farther say Twenty quarters of Corn or the like c. In the principal Case it is a joint-charge and but one for the shop and goods and he answers unto one onely but he ought to answer to all or else it is no answer at all But Coke found out another thing viz. That there is a thing put in issue which is not in the Verdict nor found nor touched in the Verdict and that was the Verdict of all which is found not to be good and it is not helped by the Statute of 32 H. 8. of Jeofailes I grant that discontinuances are helped by the Statute of 32 H. 8. but imperfect Verdicts are not helped thereby Vid. 205. It was a great Case argued in the Exchequer Chamber and it was Brache's Case An information was against Brache for entring into a house and an hundred Acres of Lands in Stepney He pleaded not guilty The Iury found him guilty for the hundred acres but said nothing as to the house upon which a Writ of Error was brought and Iudgment was reversed and he said it was not a discontinuance but no verdict for part Daniel That was the default of the Clerks who did not enter it and it hath been the usage to amend the defaults done by the Clerks in another Term All the Iustices said That is true if the Postea be brought in and not entred but here it is entred in the Roll in this form Daniel Where I charge one in Accompt with so much by the hands of such a one and so much by the hands of such a one although there be but one Absque hoc to them all yet they are as several issues The Court answered Not so unless there be several issues joined to every one of them But by Gawdy Iustice If there be several issues and the one be found and the other not no Iudgment shall be given Clench Iustice In the principal Case It is not a charge of the goods but in respect of the shop therefore that ought to be traversed Shute Iustice The Traverse of the shop alone is not good Egerton the Queen's Solicitor said That the Books might be reconciled and that there needed not a Traverse to the goods for the Traverse of the shop Prout is an answer to all But now he takes issue upon the goods onely which issue is not warranted by the Declaration and he said That if one charge me as Bailiff of his goods ad Merchandizandum I shall answer for the increase and shall be punished for my negligence But if he charge me as his Receiver ad computandum I shall not be answerable but for the bare money or thing which was delivered CCXLVI Mich. 29 Eliz. In the Common-Pleas Postea 215. IN Trespass for taking of goods the Defendant justified as Bailiff to J. S. The Plaintiff by Replication saith That the Defendant prest his Cattel of his own wrong Absque hoc that he is Bailiff to J. S. And by Anderson 1 Leon. 50. If one hath good cause to distrain my Cattel and a stranger of his own head without any warrant or authority takes my goods not as servant or Bailiff to another and I bring Trespass against him he cannot excuse himself by saying that he did it as Bailiff c. for once he was a Trespassor but if one do distrain as Bailiff although that in truth he be not Bailiff if afterwards he in whose right he justifies assents to it he shall not be punished as a Trespassor for this assent shall have relation unto the time of the distress taken which Periam concessit and also Rhodes A. distrains and being asked for what cause he distrains and he assigns a cause which is not sufficient and afterwards an Action is brought against him 3 Co. 26. he may avow the distress for another cause CCXLVII. Mich. 29 Eliz. In the Common-Pleas THE Case was That the Queen gave Lands in tail to hold in Capite and afterwards granted the Reversion Windham In this Case the Tenure is not incident to the Reversion but is in respect of the person and therefore the Tenure in Capite doth remain and the Donee shall hold of the Queen as in gross And also the Grantee of the Reversion shall hold of the Queen in Capite and so two Tenures in Capite for the same Lands See 30 H. 8. Dyer 45. If the Queen in this cause had reserved a Rent upon the Gift in tail the same should go with the Reversion CCXLVIII Dighton and Clark 's Case Mich. 29 Eliz. In the King's-Bench DIghton brought Debt upon a Bond the Condition of which was That whereas the Plaintiff was in quiet possession of such lands If now neither J. S. nor J. B. nor J. G. did not disturb the Plaintiff in his possession of the said lands by any indirect means but by due course of Law That then c. that Defendant pleaded That neither J. S. nor J. D. or J. G. did disturb the Plaintiff by any indirect means but by due course of Law upon which there was a demurrer Godfrey The Plea in Bar is not good for there is a Negativa pregnans scil a Negative which implies an Affirmative See 21 H. 6.9 In a Writ of Entry Sur Disseisin the Defendant saith That the Demandant by his Deed after the Darrein continuance did confirm and ratifie the possession of the Tenant c. The Demandant said Not his Deed after the Darrein continuance and the same was holden to be Negativa pregnans See more there and see also 5 H. 7. 7. And see farther 39 H. 6. 8 9. Another Exception was taken to the Plea in Bar because he hath pleaded That neque J. S. neque J. D. neque J. G. had disturbed the Demandant by any indirect means but onely by due course of Law and that issue cannot be tried not by the Countrey for they cannot know what is a due course of Law and by the Court it cannot be tried for the Defendant hath not certainly shewed by what due course of Law the Demandant hath been disturbed which see 22 E. 4. 40 41 c. The Lord Lisle's Case In Debt upon a Bond the Condition was That if the Defendant before such a day or any other for him and in his name come to B. and there shew unto the Plaintiff or one of his
6. All the Inhabitants of a Town do prescribe to have common in such a field every year after Harvest If one particular man who hath Freehold land with the said field sowed will not within convenient time gather in his Corn but suffer the same to continue there of purpose to bar the Inhabitants of their Common The Inhabitants of the Town may put in their Cattel into the said field and therewith eat his Corn and he shall have no remedy for their so doing and he put the Question What remedy the Commoner should have for the eating and destroying of his Common which his Cattel should have for that he can neither distrain them damage-feasance nor impound them for a Replevin doth not lie of Conies and therefore he said he hath no other remedy but to kill and destroy the Conies See 19 E. 3. and F. N. B. If the Lord doth surcharge the Common the Commoner may have an Action against him but in this Case he can have no Action Gawdy Iustice The Commoner cannot destroy or kill the Conies because he may have other remedy Shute Iustice A Commoner cannot take or distrain the beasts of the Tenant of the land for damage-feasance therefore he cannot take or destroy the Conies which are upon the land because he may have other remedy for he may have an Action upon the Case or an Assize for putting of the Conies upon the land if the owner of the land leave not sufficient Common for the Cattel of the Commoner and afterwards Iudgment was given for the Plaintiff CCLV. Manwood and Burston 's Case Hill. 29 Eliz. In the Exchequer-Chamber MAnwood chief Baron of the Exchequer brought an Action upon the Case against Burston and declared That whereas Agnes Griffin was possessed of the third part of the Manor and Rectory of Higham for term of years by Demise of the Master and Fellows of St. John's College in Cambridge made to Worthington and whereas John Sutton was possessed of another third part of the said Manor and Rectory by the same Demise and whereas John Palmer was possessed of another third part of the said Manor and Rectory for the same term The said Burston 20 Aprilis 28 Eliz. in consideration that the said Plaintiff Obtinuisset de praed Agnet totum terminum suum assurari ipsis Rogero Manwood and the Defendant scil Unam medietatem dictae tertiae partis dicto Rogero alteram medietatem unto the said Defendant apud London in such a Ward Assumpsit eidem querent Quod si idem querens procuraret dictam Johannem Palmer to assent and sell his third part the one moyety to the Plaintiff and the other to the Defendant for 320 l. That the Defendant solveret aequam portionem inde scil 160 l. And licet the Plaintiff had procured the said Palmer 22 Aprilis an supradict to assent and sell the third part for 320 l. to be paid 3 Maii the same year and the rest at another day and licet the said Plaintiff was ready to pay his part and offered the same scil 160 l. And licet the said Palmer was ready and offered to sell and convey his term aforesaid c. yet the said Defendant solvere aequam partem suam scil 160 l. Non fuit paratus sed recusavit for which the said Palmer Noluit vendere his part or interest by which the Plaintiff was damnified c. The Defendant pleaded That after the Assumpsit the Plaintiff did discharge the Defendant of the said promise upon which they were at issue and it was found for the Plaintiff who had Iudgment to recover Vpon which Burston brought a Writ of Error in the Exchequer Chamber And divers Errors were assigned 1. It is not shewed at what time the term of Agnes Griffin did begin 2. The Lease of the College is not shewed to be by writing 3. It is not shewed for what term Palmer was possessed 4. It is not shewed at what time the Plaintiff had obtained the part of Agnes 5. The Assumpsit is laid to be apud London in Warda de Farrington extra and so apud London and extra London which is repugnant 6. The Plaintiff hath declared That the Colledge had leased to Worthington and that A. and B. were possessed Virtute dimissionis praed To these Errors the chief Baron put in his answer in writing As to the two first they are in the recital and but matter of induction to the consideration and not traversable nor otherwise material to be alledged for the commencement of them or for the Rent but onely the ending of the term to come is sufficient As in an Action upon the Case That whereas the Defendant was indebted unto the Plaintiff in divers sums of money amounting to 40 l. the Defendant in consideration thereof promised c. the Plaintiff needs not to shew any certainty of the Contract or other circumstance how or in what manner the Debt did accrue or begin As in an Action upon the Case The Plaintiff declares That whereas he hath married the daughter of the Defendant the Defendant in consideration that the Plaintiff would assure to his said Wife Land to the yearly value of 20 l. for her jointure as shall be advised by the Council of the Defendant That he will pay unto the Plaintiff 100 l. And licet the Plaintiff hath made such a jointure of Land in S. unto such yearly value for the use of his Wife by the advice of the Council of the Defendant c. Here the Plaintiff needs not to shew what manner of Conveyance or Assurance was advised for it is sufficient if the consideration recited be proved in evidence with the circumstances but in pleading it is not traversable nor issuable The third Error is mistaken The fourth is answered as the two first for it is but matter of recital and the consideration past and executed before the Assumpsit and not at the time of the Assumpsit and but an Induction or conveyance to the Promise The fifth matter is mis-construed for there are two Wards of Farrington infra extra infra the Walls and extra the Walls and yet both apud London and extra is to be referred to Farrington and not to London and there ought to be made a point after extra as Farrington extra London The sixth is mistaken for there is no Error in that for the Assignee is possessed Virtute dimissionis for the original Lease is the virtue and strength of the possession of the Assignee But if these exceptions had been material yet forasmuch as the issue is not upon the Assumpsit for that is confessed by the Defendant and by that the recital consideration and all the special matters confessed to be true But the Defendant hath pleaded a new matter after the Assumpsit in discharge of the Assumpsit which discharge is found against him all the particulars in which the Errors are assigned are out of the Book and now the matter of
discharge is onely material As in debt for arrearages of Rent reserved on a Lease for years if the time and place of the making of the Lease be not set forth in the Declaration the Declaration is not good But if the Defendant plead a collateral matter as release of the arrearages or other such matter now all the imperfections of the Declaration are waved c. At another day the matter was argued again There are three manner of considerations upon which an Assumpsit may be grounded 1 A debt precedent 2 Where he to whom such a promise is made is damnified by doing any thing or spends his labour at the instance of the Promiser although no benefit cometh to the Promiser As I agree with a Surgeon to cure a poor man who is a stranger unto me of a sore who doth it accordingly he shall have an Action 3 Or there is a present consideration c. The first Exception was because the Assumpsit being laid to procure such a Lease which another had i. e. one A. it is not shewed in the Declaration in facto That A. had such a Lease and if he had not any such Lease then there cannot be any consideration to procure it For Ex nihilo nihil fit Secondly the Declaration is That A. was possessed of a Lease for years to be ended and determined in An. 1606. without shewing any beginning of it and although that Lease be but matter of Conveyance and inducement yet because it is the ground of the Action it ought to be certainly and sufficiently set forth Thirdly the Lease to be procured is laid to be made by a College in Cambridge and it is not shewed for what term of years i. e. for 21 years or under for if it be above then such Lease is void Fourthly It is not laid in the Declaration that the Lease was by writing and then void for a College cannot make a Lease without writing and it shall be intended it was made without Deed because it is not laid to be by Deed As if a Corporation makes a Lease for life and afterwards granteth the Reversion for years he that will entitle himself to the said Reversion ought to say in pleading That he made the Lease for life by Deed although the Lease for life in such case be but matter of Conveyance Fifthly It is not laid in the Declaration That the Lease to be assured was in esse and had continuance at the time it was to be assured for although it be laid to be in esse at the time of the promise yet being a particular interest it shall not be intended to continue if it be not specially shewed As 10 H. 7. 26. Sixthly Here the Plaintiff hath not cause of Action but Palmer for the Assumpsit upon which the Action is grounded the money is to be payable to Palmer not to the Plaintiff 2 E. 4. 5. My Bailiff lets my Land to Farm rendring Rent he shall not have an Action for the Rent but I my self in whose right he leased 25 Eliz. It was the Case of one Crewe I promised unto J. S. 25 Eliz. Crew 's Case That in consideration that he will make unto me a Lease for years of such Lands I will assign the same to his servant If he will not make the Lease not J. S. but his servant shall have Action upon the promise and although the Defendant hath pleaded collateral matter by which the promise is confessed yet the same doth not amend the matter for if the Declaration be insufficient the Court ex Officio ought to stay Iudgment As 6 H. 7. 10. In trespass the Defendant pleads That there was an Accord betwixt them that in satisfaction of the said Trespass he should pay to the Plaintiff such a sum and make two Windows the which sum he had paid before the day without speaking any thing of the Windows The Plaintiff pleaded No such Accord and it was found for the Plaintiff and although the Plaintiff doth admit the Plea as good yet the Court ex Officio shall stay the Iudgment See the Book of Entries 4. A Carpenter brought an Action upon the Case and declared generally upon the Assumpsit Pro diversis rebus vocat Carpenters wares pro diversis laboribus per querent at the instance of the Defendant in arte lignaria c. and holden good without any particulars It was adjourned CCLVI. Payne 's Case Mich. 29 Eliz. In the Exchequer-Chamber A Writ of Error was brought by Payne 3 Len. 144. Treasurer of the Records of the King's-Bench in the Exchequer-Chamber upon a Iudgment given in the Court of Exchequer upon an assignment of a Lease for years by the Earl of Oxford to the Queen One Error is assigned That whereas the issue was joined upon intrusion in taking of the profits and so two matters put in issue The Iury have found Payne guilty of intrusion but have said nothing of the taking of the profits and so the verdict doth not fully meet with the issue But the great matter of the Ease was upon this point The Information is That the Assignment to the Queen was 16 Maii the Intrusion 17 Maii the Inrollment of the Deed of Assignment the 18. of May. So it appeareth upon the Record That the intrusion is supposed to be done before the Queen have any interest in the Lands in which the intrusion is supposed for nothing was in the Queen before the Inrollment For the Queen is a Corporation of State of such prerogative and excellency that she cannot give or take interest in any Lands without matter of Record and this Lease is a Chattel Real and interest in Lands See as to the Inrollment 1 H. 7. 30 31. 5 E. 4. 7. 7 E. 4. 16. But I grant that if the Lessee for years be outlawed the Lease shall be in the King without Office for the Outlawry it self is a sufficient Record to entitle the King to it If the Queen makes a Lease for years of Land rendring Rent with clause That if the Rent be behind that the Lease shall cease if the Rent be not paid it was agreed here in Sir Moile Finche's Case Sir Moile Finches Case That the Lessee continuing his possession shall not be accounted an intruder before Office thereof found but he shall be accountant to the Queen for the profits as Bailiff of his own wrong But here we are charged with intrusion It hath been doubted if personal things be in the King without Office 37 H. 6. but now it is clear that it is as 35 E. 3. Br. Praerogat 113. The Villain of the the King purchaseth goods the property thereof is in the King without seisure and so of all personal Chattels because transitory 1 H. 7. 17. 4 H. 7. 1. 39 H. 6. 26. And here it appeareth upon Record that this Deed of Assignment was delivered to Baron Clark the 16 of May at Westminster and to that we say That the
said day was Dies Ascentionis sic non juridicus and so no Court there then holden and then the said Deed was not delivered in Court of Record and then not delivered unto him as a Iudge but as a private person although it was delivered to the use of the Queen But in 37 H. 6. there is some opinion That if such a Deed be delivered in Court to one of the Barons or be put into the King's Coffers that then it is a Record Atkinson contrary And as to the first Exception It is to be known That in every Plea where a contempt is laid to the charge of the Defendant he ought first to excuse or clear the contempt and therefore here the Exordium of the Plea is Quoad venire vi armis quicquid est in contemptum dominae Reginae nec non de tota ulteriore transgressione contemptu per ipsos fieri supposit ipse in nullo est inde culpabilis and afterwards plead over and so it is in an Action of trespass and also upon the Statute of 8 H. 6. of Forcible entry and here the issue upon the contempt follows the other issue for if the one issue be found against the Defendant so also is the other As to the other point I grant That a Corporation cannot take or speak without writing And the King being the Corporation of Corporations and the chief of Corporations and who makes all Corporations cannot take without a writing of as high a nature scil Record And we have a Record here as it is granted of the other side being inrolled the 18. of May which was delivered the 16. of May and then Payne upon the whole matter was the 17. of May an intruder by relation of the Deed to the time of the first delivery And an intruder by his entry cannot gain any thing out of the Queen and therefore the information upon the intrusion is diversis diebus vicibus intrusit although it be but one continued possession and therefore at every instant during his possession he is an intruder As unto the delivery of the Deed of Assignment upon the day of the Ascention which is not dies juridicus the same is not material as is 12 E. 4. 8. by Pigot If the day of the Retorn of a Writ i. e. quarto die falls out in die Dominica yet it is good enough although no Court can then be holden but the day following and the Plea is not discontinued And this delivery of the Deed of Assignment might be out of Term and therefore at any day within the Term which is not dies juridicus but contrary of a thing which is necessarily to be done within the Term as in the Case between Fish and Broket of Proclamations made upon a Fine for a man may acknowledge a Recognizance or a Deed to be inrolled in the time of Vacation c. Tanfield As to the interest the inrolment hath relation but not as to the profits for Payne cannot be an intruder the 17 of May by any relation Popham the Queens Attorney When an information upon intrusion and taking of the profits is here exhibited the Defendant ought to justifie his entry and if the entry be found against him so as his entry is an intrusion then the unlawfull taking of the profits is found also and he said That the Deed acknowledged and delivered to the Baron is a Record although it be not enrolled be the acknowledgment thereof either out of Court or in Court If an information upon a Penal Statute be exhibited unto a Baron of the Exchequer out of Court and afterwards another informer exhibits another information upon the same Statute for the same offence against the same person and that is brought into the Court before the first the first information shall be preferred and the Defendant shall answer to that and not to the other and for the exhibiting of it in Court or out of Eourt it is not material And the Assignment when it is inrolled hath relation unto the acknowledgment of it A Reversion is granted to one for life the Remainder to the King the particular Tenant Attorns the Remainder is not in the King by the Attornment but if the Deed be afterwards inrolled it shall be said to be in the King from the time of the Attornment and the King shall have the benefit of the whole mean profits from the time of the Attornment A Lease for years is made by the King reserving Rent with clause of distress That if the Rent be not paid that the Lease shall be void the Rent is not paid ten years after an Office is found the King shall be answered all the profits from the time of the default of payment of the Rent and although no intrusion can be laid on the information 17 Maii yet it shall be for the 18 day of May. Coke The Iudgment for the Queen upon an information of intrusion Quod defend de intrusione transgressione contemptu praedict convincantur c. and afterwards a Commission shall issue forth to enquire of the mean profits and there the Defendant may shew the matter for to mitigate the damages and if the intrusion be at any time in the information it is well enough to have Iudgment and in our Case the continuance is laid 18 Maii. Egerton Solicitor General The Record doth warrant the Iudgment given upon it for possession laid in the Queen is sufficient to maintain this information and here Payne doth not answer to the title of the Queen but traverseth the intrusion and therefore being found an intruder by Verdict Iudgment ought to be given upon it for the Iury have found the intrusion generally and not specially the 17 of May and that cannot be assigned for Error for it is part of the Verdict of which Error doth not lye but attaint for if any Error was the same was in the Iury and not in the Court which Manwood granted Tanfield As unto the Case of continuance of an intrusion it is clear that every continuance ought to have a beginning for a thing which hath not a beginning cannot be continued and here is not any beginning for the beginning which is laid in the information is pretended to be 17 Maii and that cannot be for the Cause aforesaid Popham If an information be brought of intrusion as appears in many Memorandums in the Exchequer where in truth there is not any Record to prove it and the Iury find the intrusion Will you have a Writ of Error upon it And every continuance of intrusion is intrusion Anderson The same matter had been good evidence Sed non habet locum hic CCLVII Beale and Langley 's Case Trin. 29 Eliz. In the Common Pleas. Int. Hil. Rot. 1544. JOhn Beale was Plaintiff in a Replevin against Robert Langley and Roger Hill The Case was That Henry Earl of Arundel was seised of the Manor of Bury in his Demesn as of Fee whereof the place
moved the Case That the Plea is good and Iudgment was entred accordingly CCLXXI. Richmond and Butcher 's Case Mich. 33 Eliz. In the Common-Pleas 1 Cro. 217. IN a Replevin the Case was this A man made a Lease for years reserving Rent to the Lessor his Executors and Assigns where the Lessor had a Fee-simple in the Lands it was holden by the Court That the Rent should go to the heir notwithstanding the special Reservation because the words of the Reservation are During the term and the other words To his Executors and Assigns shall be void and then the Rent shall go with the Reversion to the heir which see 27 H. 8. 19. by Awdley And it was said by some That a Rent reserved during the term shall go to the heir with the Reversion and 12 E. 4. was cited where a Rent reserved to the Lessor and his Assigns should not go to the heir and that these words During the term did not mend the matter for the Lessor might well overlive the term But in the principal Case it was said by Periam Iustice That the Executors should not have the Rent for they have not the Reversion but if the Lessor grants over the reversion the Grantee shall have the Rent And afterwards Iudgment was given against the Plaintiff for it was in a Replevin and Iudgment was given for the Avowant who was heir to the Lessor CCLXXII Mich. 30 Eliz. In the Common-Pleas IN an Action of Trespass brought by a poor woman for breaking of her Close she declared of a Continuando of the Trespass by six years and upon Nihil dicit pleaded she had Iudgment to recover upon which issued forth a Writ of Enquiry of Damages and now came the poor woman and shewed to the Court That the Iury had found too little damages i. e. but 10 s. whereas the Land is worth 4 l. per ann and the Trespass had continued by six years together and prayed that the said Writ might not be received and that the Court would grant her another Writ to have a Melius inquirendum of the damages but the whole Court denied to grant any such Writ for so there might be infinite enquiries But sometimes at the prayer of the Defendant when excessive damages are found or any misdemeanors alledged in the Plaintiff procuring or using such a Writ of Enquiry of damages we use to relieve the Defendant by granting and issuing forth of a new Writ but to the Plaintiff never because the suing forth of the Writ is his own act And by Rhodes Iustice The late Countess of Darby brought a Writ of Dower and had Iudgment to recover and she surmised that her husband died seised and prayed a Writ of Enquiry of damages and had it granted unto her and because too small damages were found she would have suppressed the said Writ and procured a new Writ but she could not obtain it and at last she was driven to bring in the first Writ and so it was done CCLXXIII Scrog 's and Griffin 's Case Hill. 30 Eliz. In the King 's Bench. IN an Action upon the Case upon a promise by Scrogs against Griffin The Plaintiff declared That whereas such a day one Brown and another did run for a wager from Saint-John-Street to High-gate That he of the said two that first got thither and came again should have 5 l. which wager the said Brown did win and whereas after the said match so performed the said Plaintiff affirmed that there was deceit and covin in the performance of the said match upon which the Defendant in consideration of twelve pence to him delivered by the Plaintiff promised that if the Plaintiff can prove that any deceit or covin was used or practised in the performance of the said match that then upon request he should pay to the Plaintiff 5 l. And upon Non Assumpsit pleaded it was found for the Plaintiff and it was moved by Foster in arrest of Iudgment That here is not any request set forth in the Declaration and also that this deceit is enquired of in London whereas it ought to be in Middlesex where the Race was run and it was agreed by all the Iustices That the proof ought to be made in this Action as in the common Cases of voyages and that request now is but matter of conformity and not of necessity Wray Iustice It is clear That always proof ought to be as it is here if not that the matter be referred to a special proof before a person certain And as to the trial The deceit is not in issue but onely the promise and therefore the issue is well tried in London Also this Action here includes proof and request for there cannot be made any other proof and the proof is the effect for which cause he concluded that Iudgment should be entred for the Plaintiff which was done accordingly CCLXXIV Fuller and Trimwell 's Case Pasch 29 Eliz. In the Common Pleas. IN a Replevin by Fuller against Trimwell who made Conusance 1 Roll 46. â—… as Bailiff to one house for damage fesance The Plaintiff in Bar of the Conusance shewed That one A. T. did pretend right to the land where c. and the Defendant in the right of the said A. T. took the cattel c. Absque hoc that he took them as Bailiff to the said House upon which the Defendant did demur in Law and it was argued by Shuttleworth Serjeant That the traverse is not good which see 26 H. 8. 8. 5 H. 7. 2. Not his Bailiff but if the truth of the Case be so he may plead of his own wrong without such cause c. And see also 28 H. 6. 4. The Commandment is not traverseable but in special Cases where the Commandment determines the interest of the other party which see 13 H. 7. 12 13. Antea 196. in the Case of the Earl of Suffolk in Trespass the Defendant pleaded That before the trespass the Plaintiff was seised and thereof enfeoffed one B. by whose commandment he entred to which the Plaintiff said That after the Feoffment and before the trespass the said B. leased to the Plaintiff to hold at will Absque hoc that the said B. did command him and that was holden a good traverse for the commandment determines that Lease at will and in the principal Case all the Iustices were of clear opinion That the traverse is good and they all said That the Custos Brevium had shewed to them many presidents thereof See 15 H. 7. 17. and see also 7 H. 4. 101 102. In trespass for taking of cattel the Defendant did justifie as servant to such a one for Rent arrere due to his Master The Plaintiff Replicando said That the Defendant was not Bailiff at the time of the taking where it is said by Gascoigne That if the Defendant takes the cattel claiming property as a Heriot due to himself although that afterwards the Lord agrees to the distress
J. S. he was constrained to pay the money J. S. promised for the same consideration to repay the money 286 D DIminution 3 Distress for Rent 8 Debt 10 26 33 49 88 90 122 126 136 150 153 162 163 172 181 189 200 208 248 Debt for Rent 14 28 67 121 Dower 15 85 174 238 Devise 16 92 123 165 171 198 239 243 276 279 280 287 Debt upon Recognizance 24 Descent no plea nor any title against the Queen 37 Debts of the King by the Statute of 33 H. 8. 39 Disseisin 80 Distress 179 Detinue 201 Discharge of a promise a good plea upon an Assumpsit 270 E ERror 2 3 4 77 86 100 115 132 135 160 161 222 231 244 251 255 256 263 Entry of Records 3 Estopell 3 17 Extent 20 75 167 Exceptions to a Writ 47 Extendi facias sued out and the Liberate not returned if good 65 Escape an Action of Debt brought upon it 112 Execution upon a Statute and the Sheriff voluntarily sets him at large 117 Execution 202 Enquest taken at the instance of the Plaintiff 203 Ejectione firme 250 Exposition of Statutes do belong unto the Queen 's temporal Courts 267 F FEoffments to Uses 7 25 118 183 194 218 233 257 282 285 False imprisonment 43 Fine 38 73 139 169 191 206 263 Formedon 84 196 Feoffment in Fee of Lands parcell of the Dutchy of Lancaster how and of whom the Tenure shall be 184 Fines in Courts 219 G GRant de Advocatione Ecclesiae what passeth 106 Grant of Lands of the Dutchy of Lancaster by the King unto another Tenend in Fee-farm if this Land shall be holden of the King in Capite or holden of the Dutchy 197 Gift where void both by Common-Law and the Statute of 13 Eliz. 284 H HEriot 10 Habeas Corpus not well returned day given to amend it 213 I JUdgment against Bail 2 Indictment upon the Statute of 23 Eliz. of Recusancy 6 Justicies no Original but a Commission to the Sheriff 41 260 Information upon the Statute of 18 H. 6. cap. 17. concerning the gaging of vessels of wine 52 In consideration that the Plaintiff would stay an intended suit in Chancery promised that if the Plaintiff can prove that the father of the Defendant took the profits of the Lands in question that he would pay to him for all the said profits 133 Information upon the Statute of Usury 144 In consideration of marriage the Defendant promised to pay to the Plaintiff 100 l. 146 Joint-tenants in Fee grant a Lease for years rendring Rent and one dies how the Rent shall be divided 148 In consideration that the Testator would forbear the payment of a sum of money for a week he promised to pay him within a week if the Action will lie for the Executors 149 Judgment not to be reversed but by Error or Attaint 154 Information upon the Statute of 27 Eliz. cap. 4. by the party grieved The Plaintiff was non-suit yet shall not pay costs and damages 156 Indenture delivered at another day and not the day of the date 157 Indictment for inclosing of Common vi armis c. not good 159 Intruder dying in possession the same descent taketh not away an Entry 182 Indictment upon the Statute of 23 Eliz. of Recusants 204 Indictment upon the Statute of Praemunire of 13 15 R. 2. 225 Indictment upon the Statute of 8 H. 6. of forcible entry 226 232 Indictment for not repairing of a Bridge 227 Indictment for an unlawfull assembly and entry 228 Indictment upon the Statute of 5 E. 6. cap. 4. for drawing of his dagger in the Church 234 Indictment upon the Statute of 5 Eliz. of Perjury 262 Judgment joynt against three will not lie against one of them in particular 277 L LEases 1 40 78 96 102 110 116 119 131 134 169 178 192 207 236 252 253 261 Leet how holden 31 98 266 Love is no consideration upon which to ground an Action 35 Letters Patents Bona Catalla felonum c. 81 Letters Patents of Offices not to be repealed after the death of the Grantor 128 Limitation and Condition with their difference 52 M MAintenance in returning a partial Jury 177 N NUsance for stopping a River with earth by which land was drowned 129 222 Nudum pactum quid 187 O OUtlawry 23 166 Obligation for appearance upon a Latitat where void 103 220 Office found 169 Obligation that the Obligor shall not exercise his Trade within a Town nor within a certain precinct of it void and against Law 259 P PArtition 3 Prescription 13 Property 35 113 Partitione facienda 69 Privilege is not for an Atturney against an Attachment by the custome of London 190 Presentments several make the Church litigious 205 Privilege pleaded for a Lord of Parliament 209 Prohibition prayed to the Court of Admiralty 224 Payment no good Plea without alledging it upon Record 269 Proof how to be made 273 Q QVare Impedit â—â— 83 Quo Warranto 266 R REceit of the wife 11 Rectory Quid 13 Rent charge 21 185 186 Replevin 29 58 82 87 107 158 168 170 211 274 281 Rents and Services 57 Reparations 72 Replicando of his own wrong how construed 108 Remainder in tail who was attainted of Felony 169 Recognizance of good behaviour 199 Recovery in a Writ of Entry 214 Return of a Devastavit upon a Fieri facias a motion to have an Elegit 235 Replication where good by Executors 265 S SEals 27 Special Plea to an English Bill if it may be relinquished 38 Sheriff must deliver all the prisoners in his custody over to his successor 76 Scire facias against the bail in an action of Debt to which was pleaded the death of the Defendant before Judgment given against him 125 T TEnancy several where no good Plea 9 Trover and conversion 22 50 217 278 Tythes 30 32 93 95 98 105 124 180 216 Tail. 51 54 63 170 247 Trespass against the Warden of the Fleet brought in the King's Bench 56 Tenant per auter vye after the death of Cestuy que use holdeth over if he be a Disseisor 59 Tenant at will if he may grant Copihold Estates to Copiholders 59 Trespass upon the Statute of 8 H. 6. of forcible entry 70 Trespass for an assault and battery 104 Tender of rent if refused where good and where not 173 Trespass by one Administrator against another for taking away the goods of the intestate 188 Trespass Quare clausum fregit and new assignment pleaded 230 Toll no lands to be discharged of it but lands Socage onely 240 Trespass Quare clausum fregit 241 Trespass for taking of goods and the Defendant justifies as Bailiff to J. S. 246 Trespass for breaking of the Plaintiffs close and for killing his Conies 254 Trespass for cutting down of four Oaks and the Defendant pleads that he and all those whose Estate he hath c. Habere consueverunt rationabile estoverium suum for fuel c. 258 W WRit of entry in the Per 9 Will of the Request of Land and the name of the Devisor not in it if good 44 Waste 45 46 62 210 282 Writ of Annuity 68 Wager of Law 143 Writ of Enquirie of damages if too little damages be found no other Writ pro meliore Enquir can be granted 272 Writ of Entry Sur Disseisin 283 FINIS
Iudgment and upon that a Levari facias and then a Capias ad satisfaciendum upon which Paston the Defendant a Sheriff of Norfolk to whom the Capias was directed took the party and afterwards suffered him to escape The Defendant pleaded That before the said Capias the said Francis Woodhouse was committed to him and in his ward continued for Felony and after the Capias was endicted thereof and arraigned and found guilty after which he escaped And all this was found by special verdict First it was argued if upon a Recognizance acknowledged in the Chancery an Action lieth and it was said by Bois That it doth not lie in the mouth of the Sheriff to say that this Capias doth not lie in the Case As if a Iustice of Peace maketh a Warrant to a Constable which Warrant is not good in Law yet the Constable is not to examine that or to dispute the validity of it 5 H. 7. And a Capias hath lain in such case and so it hath been the course for the space of 200 years and he said That although Francis Woodhouse was convict of Felony yet the same is not any discharge of the execution as 35 H. 6. 8. although the husband be attainted of Felony yet he is not so dead in Law but if the King pardon him afterwards he shall be restored and his wife shall have Dower and if he be killed his wife shall have an Appeal 12 H. 4. My Villain is attainted the same is no discharge of his villainage as to me But if the King pardon him after he shall be my Villain 6 E. 4. 4. One is in Execution pro fine Regis and afterwards is outlawed for Felony and hath his Charter of pardon for the Felony yet he remains in Execution for the interest of the party for there the Execution is not extinct but onely suspended Godfrey contrary Capias doth not lie upon a Recognizance but if Debt be brought upon a Recognizance and the Plaintiff recovereth then a Capias lieth which see 14 Eliz. Dyer 306. Puttenham's Case 2 H. 4. 6. In Dower the Demandant recovereth her Dower and damages and prayeth a Capias ad satisfaciendum for the damages but she could not have it for no Capias lieth upon the original and to the same purpose see 8 R. 2. Fitz. Execution 164. 15 H. 7. 15. Capias pro fine lieth for the King where no Capias lieth in the Original but no Capias ad satisfaciendum for the party no Capias in Debt before the Statute of 25 E. 3. and see the Stat. of West 2. cap. 18. cum debitum fuerit recognit si in electione sequent execut habere per Fiere facias or Elegit therefore no other manner of Execution for the Statute hath provided ut supra And he said That debt doth not lie upon a Statute Merchant or Staple See 15 H. 7. 16. Another reason why a Capias doth not lie in such case is upon the words of the Recognizance Et nisi fecerit tunc concedit quod summa praedict levetur de bonis catallis terris tenementis Ergo not of the body And when Woodhouse was convict of Felony the Queen had an interest in his body and upon the pardon the Execution which was suspended during the conviction is now received And he confessed the case of Villainage that during the attainder the Lord cannot meddle with the Villain in the presence of the King See 27 Ass 49. and see 2 H. 4. 65. A. was condemned to B. in certain damages upon an Action of Trespass brought by B. against A. and A. was committed to Newgate in Execution upon a Capias ad satisfaciend and afterwards was arraigned of Felony and thereof attainted and committed to the Ordinary as Clark Attaint And the Iustices commanded the Ordinary That after that the prisoner had made his purgation that he should not let him go at large but should conduct him to the prison of Newgate again And there is a Quaere made by the Reporter If after purgation the Ordinary might suffer him to escape and if he at whose suit he was condemned in Trespass shall have debt against the Ordinary for such escape At another day the matter was argued by Coke for the Plaintiff at the Common Law No Land was subject to Execution i. no Lands of the Debtor himself but yet the Lands of the Debtor being descended to his heir should be chargeable to the Obligee of the Debtor in which he and his heirs were bound and that seemed to be very strange and he conceived That in that point custome and usage had encroached upon the Common Law The Statute of West 2. c. 13. gave Elegit of the moyety of the Lands but yet there was no Capias in Debt before 25 E. 3. cap. 17. before which Statute it was a general Rule That no Capias lay at the Common Law but where the King was to have a Fine See 35 H. 6.6 At the Common Law Capias did not lie but where the Action is vi armis or that the King is to have a Fine For there was Outlawry at the Common Law in such case It will be objected That the Statute of 25 E. 3. which gave Capias in Debt doth not extend to a Scire facias upon Recovery That such Process shall be made in a Writ of Debt as is used in a Writ of Accompt and here is no Writ of Debt but a Scire facias onely If my Debtor upon an Obligation cometh without a Writ and confesseth the Debt I shall have a Capias against him and yet the same is not in a Writ of Debt Ergo so in case of Recognizance Where a Statute speaks precisely of a Writ Original yet oftentimes by Equity it shall extend to a Scire facias and other judicial Process As upon the Statute of 25 E. 3. cap. 7. which enables the Incumbent to plead in a Quare Impedit It shall extend to a Scire facias upon a Recovery in a Quare Impedit 46 E. 3. 13. And in our case a Capias doth not lie by the Letter yet it lieth by Equity And he said That Statute which helps the Subjects to get their debts and rights are to be and have been taken beneficially and liberally expounded in advantage of the Creditors And see 48 E. 3. 14. Where a Scire facias is sued upon a Recognizance a Capias doth not lie but there it is holden that in a Scire facias upon a Recovery in debt a Capias lieth And as to this Capias the Sheriff is but the minister to the Court and he is not to controll the Court but to accept of the same as the same is directed to him It is a common learning in our Law That although the Court doth proceed inverso ordine yet it shall not be utterly void 36 H. 6. 34. Iudgment given at the Common Law of Lands within the five Ports for the five Ports in times past
Covenant performed But if the words had been in consideration of the said Covenant to be performed then he had been bound to pay the money presently and he should have his remedy by Covenant CCLXV. Foster 's Case Trin. 30 Eliz. In the King's-Bench NOTE It was said and holden by the whole Court in this Case That in Debt brought against Executors If the Defendants plead That the Testator was bound in a Recognizance in such a sum beyond which they have not any thing in their hands That it is a good Replication to say That the Recognizance was entred into for performance of Covenants contained in certain Indentures of which Covenants none are yet broken CCLXVI. Partridge 's Case Trin. 30 Eliz. In the King's-Bench A Quo Warranto was brought against Partridge in which Case It was holden by all the Iustices That a man may prescribe to hold a Leet oftener than twice in one year and at other days than are set in the Statute of Magna Charta cap. 35. because the said Statute is in the Affirmative But Popham said That one cannot prescribe against a Statute See for the same Book of Entries 13 E. 3. Leet 12. and he said That the want of a Tunbrel and Pillory is a good cause of forfeiture of the Liberty which Coke denied And it was farther moved by Popham That if a general pardon be granted with general exceptions in it he that will take advantage of the same ought to plead it and shew that he is not any person excepted for otherwise the Iudges cannot allow him the benefit of it because they do not know if he be a person excepted or not But if there were special persons excepted by name and none other excepted but onely those persons there the party needs not to plead it for the Court may discern J. B. from J. D. See 8 E. 3. 7. and 26 H. 8. 7. If a man commits Felony and also Treason and afterwards comes a general pardon for the Felony but Treason is excepted and the party is arraigned of Felony by Coke he shall have the benefit of the pardon but Popham contrary for he is disabled by the Treason And it was agreed by the whole Court That in a Quo Warranto It is not sufficient for the Defendant to say That such a Subject hath lawfull interest to hold a Leet without making Title to himself for the Writ is Quo Warranto he claims c. And afterwards Iudgment was given for the Queen CCLXVII Wiggen and Arscot 's Case Trin. 30 Eliz. In the King's-Bench IN a Prohibition the surmise was That the Exposition of Statutes doth belong unto the Queen's temporal Courts and Arscot had sued in the spiritual Court for Tithes whereas in truth for not reading of the Articles according to the Statute of 13 Eliz. he was deprived ipso facto and so he was not Parson for which cause Gawdy prayed a Prohibition for he said that the surmise was good and sufficient For the Question is Parson or not Parson and that shall be tried here by the Common Law. And I do not know that it hath ever been ruled here to the contrary before Clench Iustice It hath not been ruled to the contrary yet because great inconvenience may arise upon the admitting of it The Court hath taken order That no Prohibition shall be granted upon such a surmise without great probability of the truth of the surmise Where a Prohibition is awarded upon such a surmise the party needs not to prove his surmise according to the Statute of 2 E. 6. cap. 13. for this surmise is conceived upon a cause of later time since the said Statute and was not any cause to have a Prohibition at the time of the said Statute CCLXVIII Winter and Loveday 's Case Trin. 31 Eliz. In the King's-Bench Rot. 759. IN an Action of Covenant by Winter against Loveday It was found by special Verdict That Winter by Deed indented Mortgaged to Loveday a certain Lease upon condition to pay 400 l. to Loveday at a day certain at the porch of such a Church and upon such payment Winter to have back his Lease and Loveday covenanted That upon repayment of the money he should have back all his Evidences concerning the same and it was farther found That at the day of payment one Cornwallys sent unto Loveday to know if Loveday would receive the money which Winter owed to him at his house who answered that he was content and he came there and the money was told and delivered in bags to Loveday but afterwards some contention did arise between Winter and Loveday for certain Writings for which cause Cornwallys said That if they would not agree betwixt them That they should not have his money Whereupon Winter requested Cornwallis that he might have the money to carry to the said porch of the said Parish Church who was contented and there Loveday came to receive it and Winter would not pay it Tanfield moved That the same was a good payment to discharge the Mortgage for the money was told in the house of Cornwallis and Loveday there put it up into bags and the same is a good payment and receit Coke contrary Here is not any payment for it was not the money of Winter but of Cornwallis as appeareth by the words of Cornwallis scil If they could not agree they should not have his money Also Winter requested Cornwallis that he might have the money to carry to the porch of the Parish Church aforesaid by which it appeareth that it was not Winter's money And for that cause it was also the opinion of the Court that the same was not any sufficient tender See for this 1 Len. 34 35. the Case of Watkins and Astwick Hil. 28 Eliz. CCLXIX Ordway and Parrot 's Case Trin. 30 Eliz. In the King's-Bench ORdway brought a Scire facias against Parrot and Hallsey who were Bail in a Bill of Debt for one Bennet and they pleaded That the said Bennet had payed the money recovered to the Plaintiff according to the condition of the Recognizance and it was the opinion of the whole Court that it was no Plea without alledging payment upon Record for if this should be suffered every man should be inforced twice to trie his Action wherefore the Plea was disallowed CCLXX. Coniers and Holland 's Case Trin. 30 Eliz. In the King's-Bench 3 Cro. 279. 2 Cro. 483. 620. IN an Action upon the Case upon Assumpsit by Coniers against Holland The Defendant pleaded That after the promise that the Plaintiff had discharged him of it And by Wray chief Iustice It is a good Plea and so it hath been often ruled and it was late the Case of the Lord chief Baron against whom in such an Action such a Plea was pleaded and he moved us to declare our opinions in Serjeant's-Inn and there by the greater opinion it was holden to be a good Plea for which cause The Court said to Buckley who