open any Chest which is locked and take the Goods in that in Execution and if he doth it not an Action of Case will lie against him In Debt if it be demanded by Original the Process is Summons Attachment and Distress and for Default of sufficiency upon a Nichil returned Process to the Outlary if the Summons or Attachment be returned an Essoyn lies And Wager of Law lies if the Count be upon a simple Contract And if the Parties be living which made the Contract or Debt against an Heir the Writ shall be brought in the Debet but when it is brought against an Executor or Administrator or of Chattels it shall be in the Detinet tantum The Judgement in Debt where the Demand is in the Debet detinet is to recover the Debt Damages and Costs of Suit and the Defendant in misericordia but if the Defendant denies his Deed then a Capias for his Fine issues out And if the Original be in the Detinet for Chattels then the Judgement is to recover the thing in Demand or the value thereof and Costs and Damages and the Process of Execution is a Distress to deliver the Chattels or the value and Damages And if the cause of Action be against Executors or Administrators the Judgement is to recover the Debt and Damages of the Testators Goods if the Executor hath so much in his hands and if he hath not then the Damages of the Executors or Administrators proper Goods And if the Sheriff upon a Scire facias return a Devastavit then a Fieri facias or Elegit may be sued out to levy the Debt and Damages of the Executors or Administrators proper Goods And if the Executor plead that he never was Executor and it is found against him that he hath administred but one Penny the Judgement shall be to recover the Debt and Damages of the Executors own Goods Debt brought upon a Record the Execution shall be brought where the Record remaines MIch 9. Jac. rotulo 2304. Throckmorton Administrator versus Hobby The Aministrator releases and afterwards the Administration is revoked and declared by Sentence to be void and null and then the Release is void TRin. 9. Jac. rotulo 917. Brookesby Vaux versus M. Tresham Executor of the Testament of T. T. and Exception was taken to the Defendants pleading because the Defendant pleads divers Statutes to divers persons and the Plaintiff shews that some were by fraud and that others were for performance of Covenants that were not broken and for other Statutes that they were satisfied and the Defendant in pleading a Statute by three sayes two of them did not pay and doth not say that the three nor any of them have not paid In pleading of a Statute it must be generally pleaded that it is a true Debt And my Lord Cook held that a man without a Defeasance may plead that the Statute was acknowledged for Payment of a lesser summ and it was held that if the Count be good and the Plea naught and Replication naught if it appears that the Plaintiff had good cause of Action the Plaintiff shall have Judgement And Warburton said that one may plead generally that the Statute was acknowledged by fraud without shewing the special matter SPeak versus Richards The Plaintiff brought an Action of Debt for Money levied by the Sheriff upon a Levari facias and not paid to the Plaintiff upon the Sheriffs Return upon the Levari issued out of the Chancery and that it would well lie But note the Plaintiff had concluded his Demurrer ill for he demurring to the Defendants Plea which was grounded upon a Release should have demanded Judgement if the Defendant should be admitted to plead a Release which was made after the Sheriff had made his Return TRin. 15. Jac. rotulo 1630. Parson versus Middleton Action of Debt brought to be tried in Durham and the Record sent to the Chancellor of Durham because the Bishops Sea was empty and before the Day given by the Judges a Bishop was elected and he sent the Record and not the Chancellor MIch 15. Jac. rotulo 2118. Maddock versus Young The Plantiff brought an Action of Debt for an Escape against the Sheriff upon a Capias utlegat after Judgement the Defendant pleads that there was no such Record of the Recovery of the Debt and Damages to which Plea the Plaintiff demurrs pretending he had not directly and plainly answered the Declaration but Judgement was given for the Defendant Where a Capias is not the Process a Capias ad satisfaciendum is not the Execution and no Capias lies against a Countess or Baroness and at Common Law no Capias ad satisfaciendum would lie but onely where the Action was Vi armis but onely a Levari facias MIch 14. Jac. rotulo 3140. Bawkey versus Isted An Action of Debt brought upon the Statute of E. 6. for not setting forth of Tithes of Land lying within the Parish of Horsted parva the Defendant pleads Nil debet per patriam and after Triall and a Verdict Exception was taken to the Venire facias because the Venire facias was of Horsted parva and not of the Parish of Horsted parva but the Court were of opinion that it might be either of the Town or Parish of Horsted parva and Judgement was given for the Plaintiff because both the Town and Parish were named in the Record An Action of Debt brought against an Administrator who pleads that the Intestate was indebted to him and that he had fully administred and that he had no Goods or Chattels which were the Intestates beyond Goods and Chattels to the value of 10. l. which the Administrator retains towards satisfaction of the said Debt to him due the Court were of opinion that the Administrator ought to plead generally fully administred else the Debtor should be prejudiced in taking Issue upon that Plea the Case was between Fox and Andrew PAsch 6. Jac. rotulo 751. Sharpley versus Hurrell Action of Debt brought upon an Obligation and the Defendant pleads the Statute of Usury and sets forth that one Ship went a fishing to New-found-land which Voyage might be performed within eight Moneths the Plaintiff delivered fifty pounds to the Defendant to pay sixty pounds upon the Return of the Ship to Dartmouth from fishing and if the Ship should not come to New-found-land by reason of Leakage or Tempest should return to Dartmouth then the Defendant should pay the principal Debt and if the Ship should never return he should pay nothing and it was held by the Court that it was not Usury for if the Ship stayed at the New-found-land two years he should pay but 60. l. An Action of Debt brought against an Executor who pleads that he had nothing in his hands at the time of the Writ purchased and saith not nor any time after the Plea is not good but if the Plaintiff had took Issue
brings an action of Trespasse and the first Nonsuit pleaded in Barr and adjudged a good Barr 12 Edw. 4. accordingly Foster Walmesley and Warburton agreed without any doubt but they sayd that if the first execution had been had by Covin then it should have been otherwise In Debt upon buying of diverse severall things the Defendant confesseth part and for the residue the action being brought by an Executor in the Detinet onely the Defendant pleads he oweth him nothing and upon this Tryall was had and Verdict for the Plaintiff and after Verdict it was moved that this misjoyning of Issue was ayded by the Statute of Jeofailes but it was resolved by all the Justices that it was not ayded for it was no misjoyning of the Issue but no Issue at all but if there had been Issue joyned though that it were not upon the direct matter yet this shall be ayded and at the end the Plaintiff remitted the part that the Issue was joyned and prayed Judgment for the residue and this was granted but if the Plaintiff had been nonsuited that would go to all Administrators during the minority had Judgment in debt and before execution sued the Executor came to his age of seventeen yeares and how this execution shall be sued comes the question for the power of the Administrator was determined by the attaining of age of 17. yeares by the Executor and the Executor was not party to the Record and for that he could not sue execution but it seems that the Executor may sue speciall Scire facias upon the Record and so sue execution in his owne name See 27 H. 8. 7. a. Action upon the Case for these words He hath stolne forty Staure of Lead meaning Lead in Stauce from the Minster and resolved by all that action doth not lye for it shall be intended that the Lead was parcell of the Minster and the Innuendo shall not helpe that Pasche 9. Jacobi 1611. In Common Bench Crane against Colepit THomas Crane Plaintiff in Replevin against Bartholemew Colepit the only question was if Tenant by discent of the age of twenty years and more ought under one and twenty yeares to attorn to a Grant of the signiory or not and it was adjudged that the Attornement is good for three reasons First For that he gives no Interest and for that it cannot be upon condition for it is but a bare assent Secondly His Ancestors held the same Land by the payment of the Rent and making of their Services and it is reason that the Rent should be payd and the Services performed and for that though that he shall have his age for the Land yet for the Rent he shall not have his age and though that it is agreed in 32 Ed. 3. That he shall have his age In per que servitia yet after his full age the Grantee shall distraine for all the arrerages due from the first so that the Attornement is no prejudice for this Infant and he is in the number of those which shall be compellable to attorn see 41 Ed. 3. age 23. 26 Ed 3. 32. 32 Ed. 3. and 31 Ed. 3. Per que servitia 9 Ed. 3. 38. 32 Ed. 3. Infant of the age of three years attorned and good and 3 Ed. 3. 42. Husband attornes and that shall bind the Wife 12 Ed. 4. 4. 18 H. 6. Attornement of an Infant is good to binde him for that it is a lawfull act Thirdly The Attornement is a perfect thing of which the Law requires the finishing that is the grant of the signiory which is not perfect till the Tenant attorn and Foster Justice said that so it had been adjudged in this Court in the time of the Reigne of Elizabeth in which Judgment all the Justices agreed with one voyce without any contradiction See 26. Ed. 3. 62. Pasch 9. Jacobi 1611. In the Common Bench. As yet Rowles against Mason see the beginning Michaelmas 8. Jacobi DOdridge Serjeant of the King argued for the Plaintiff he saith that there are two Copies first that a Copy-holder for life under a 100. l. may nominate his Successor Secondly That such Copy-holder after such nomination may cut down all the Trees growing upon his Copy-hold and sell them and he saith that it hath been adjudged that the custome that Copy-holder for life may sell the Trees growing upon his Copy-hold is void between Popham and Hill Hillary 45 Eliz. in this Court so if the first custome doth not make difference by the nomination the second is resolved to be void and it seemes to him that the first custome doth not make difference and to the objection that the first custome hath been adjudged to be good between Bale and Crab he saith that the custome adjudged and this custome as it is found differs in many points First It was found that every Copy-holder for life solely seised without Remainder but here is sole Tenant in possession and this may be where there is a Remainder so that uncertainty in this makes the custome void as in 6 Ed. 3. custome that an Infant at the age of discretion may alien is void for uncertainty also in the case here it is found that the Copy-holder may name who shall be next Tenant to the Lord and doth not say to whom the nomination shall be made but in the first case the custome is found to be that the nomination ought to be to the Lord in the presence of two Copy-holders also in the first it is found that if they cannot agree of the Fine that the Homage shall assess it but in this custome here found there is not any mention of that he ought to seek to be admitted and doth not say at what court the which ought to be shewed in certain as it is resolved in Penimans Case 5 Coke 84. Where custome that a Feoffment ought to be inrolled is expressed shall be inrolled at the next court also in the first case to be found that after the Fine is payd or offered he which is named shall be admitted and here is not any mention of that so that he concluded that this is a new custome and not the same custome which was in question between Bayle and Colepit also it is found that the trees were cut immediately after nomination of a new Tenant and before any admittance or Fine payd for him so that insomuch that the Benefit was not equall as well as to the Lord as to the Tenant as in 2 Ed. 4. 28. and 22 Ed. 4. 80. For plowing and turning upon the Land of another for that the custome shall be void And to the second custome also it seems that that is voyd and unreasonable First for that when any is alledged in the custome that is inconvenient though that it be not mischeivous yet the custome shall be void as in 4. Assisarum 27. in Assise brought against an Abbot which pleads custome that all the houses of the South side of
executed for then it would be too late for then the Estate is transferred to another as it was in the cases put by Anderson in Corbetts Case But here all the Estate limited to him which made the forfeyture shall be determined and also he intended that the Reason that the Replication containes that the parties being in actuall possession are only to satisfie the words of the Condition And so he concluded and praied Judgement for the Plaintiff In dower the Demandant recovered Dower of tenths of Wool and Lamb and how execution shall be made was the question And the Justices intended that the Sheriffe might deliver the tenths of every 3 yard land and assign the Yard Lands in certain Bâ—t after it was conceived that this would be uncertain and unequall and for that the Sheriffe was directed to deliver the third part of all in generall and yet the first was agreed to be good but onely in respect of Inequalities as in dower of a Mill the third Toll dish and of a Villayne the third dayes work as in 23 H. 8. And it was also agreed that the Sheriffe may assign this dower without a Jury It was moved if an Attachment be granted against a Sheriffe for contempt after he is removed out of his Office and the Justices intended that not insomuch that now he is no Officer and for that he cannot be now fyned and without fyne they did not use to Imprison but the Judges would be advised to see the Presidents of the Court in such a case Mâ—chaelmas 1611. 9. Jacobi in the Common Bench. Kemp and Philip his Wife James and Blanch his Wife Plaintiffs against Lawrere and Trollop and the Wife of Gunâ—er Executrix during the minority of the Wives of the Plaintiffs THe case was An Executrix during the nonage for so it was and not Administratrix that is shee was ordained Executrix till the Wives of the Plaintiffs came to their full age or were marryed and then they should be Executrixes And this Executrix during the minority brought an action of Debt and recovered and before Execution the women Executrixes took Husbands and brought Scirefacias upon the Record to have Execution upon the Judgment against these Defendants as Ter-tenants which pleaded specially that they had nothing in the Free-hold nor in the Land but only a lease for yeares and that the free-hold was in another stranger upon which Plea the Plaintiffs demurred in Law And Nicholls Serjeant for the Plaintiffs that there is the difference betwixt this Executor and an Administrator during the minority as in 26 H. 8. 7. a. if an Administrator have Judgment and dyes before Executors or other have sued out their Letters of Administration they shall have no execution of this Judgement insomuch as he comes in paramount the first Administrator and as immediate Administrator to the first Intestate as it is agreed in Shelleys case So the Administrators of one Executor shal not have execution of a Judgment given for the Executor as it is resolved in Brudenels case 5 Coke the 9. b. And in 21 Edw. 4. It is agreed if two are made Joynt-Executors and one of them dies the other shall be sole Executor to the Testator and if hee make his Executor and dyes his Executors shall be Executors to the first Testator And also there is in Fox Gretbrooks Case in the Com that one may be Executor for certain years and another after and this differs from the other cases for in this case all these Executors were in privity one to another but in the other case one comes paramount the other But here they are all made by the first Testator and the Will And he cyted the 2 Case in the Lord Dyer and 18. and 32 Edw. 3. there cyted where a Purchasor brought a Writ of Errour and was not privy to the first Record And Grantee of a Reversion brought a Scire facias against Conusee of a Statute-Merchant alledging that he had received satisfaction So if a Parson of a Church recovers an Annuity and after the Church is appropriate to a house of Religion the Soveraign of the said house shall have a Scire facias And so if union be made of two Benefices and yet in all these cases there was no privity to the first Judgement so he in reversion shall have Errour in Attainâ— upon Judgment against his Lessee for life and the Reason is given in Brudenels Case that is they which may have prejudice may have scire facias and it is not like where two Joynt-tenants are and one makes a Lease for years and dyes the other shal have the Rent insomuch that he comes in by survivorship and not in privity But here the Executors come in in privity as in case of two Executors are joyntly one â—yes the other which survives shall have Execution of Judgement given for them for Administrator during the nonage is only to the use commodity and profit of an Executor and of a Testator so that he being Executor to the Testator he shall have execution And to the second that is that the Defendants have nothing but for yeares and that the free-hold is to a stranger he intended that this is not good yet he agreed that in scire facias where a free-hold is to be recovered speciall non-tenure is a good plea as in 8 Edw 4. 19. and 8 H. 6. 32. but not of the contrary and there also generall non-tenure is no plea But here where the free-hold is not to be recovered nor one nor the other is a Plea for it may be averred that the Defendant hath a release from him that hath the reversion and as in 14 H. 4. 5. in scire facias to accompt against an Executor who pleads that the Testator was never his Bayliffe to give an accompt and yet it is agreed that this hath been a good plea for the first Defendant and this is the reason that it was not taken nor was allowed for a good plea in the 11 H. 4. 11. Insomuch that this amounts to non-tenure and in 44. and 45. Eliz. Mich. Rot. 834. it was adjudged in Scire facias where the Defendant pleads that he was not Tenant of the Free-hold and adjudged no plea And so he said it was adjudged in the case of All-soules Colledge in Scire facias to have execution of a Judgment in Ejectione firme and the Defendant in the Scire facias pleads that he was but Lessee for years and adjudged no Plea insomuch that nothing was to be recovered but only the tearm and not the Free-hold and so he concluded and prayed Judgement for the Plaintiff in Scire facias Harris Serjeant argued to the contrary and he intended that the Return of the Sheriffe is void insomuch that the Writ commanded him to give notice to the Tenants of the Land in Fee-simple and hee did not return that those which he had returned were Tenants of the Land in Fee-simple and
Corpus amended Debt upon two Bils and one not due and tried for the Plaintiff and moved in Arrest the Plaintiff released his Damages and had Judgement upon the Bill due Lessee of the Vicars Gleab-land shall pay Tithes Nota. Venire facias de D. or within the Parish of D. or de Parochia good Scire facias upon a Recognisance may issue out into any County Deprivation of a Minister may be given in evidence Best to have Damages severed upon two Contracts Breach for not acknowledging a Fine Nota. Feossment of Land in satisfaction of Debt upon a single Bill held naught A Steward of a Leet within the Statute of E. 6. against buying of Offices One thing in Action cannot be a satisfaction for another thing in Action Vpon a Request and none ready to receive and after a Request Damages shall be paid from the Request Nota. Nota. Nota. An Almoner would have acknowledged satisfaction and doubted Judgement against the Plaintiff for incertainty of his Count. Nota. Judgement for the Plaintiff Nota. Because the first Contract was not usurious the latter shall not No Action of Debt for Soliciting Fees Defendant pleads the Plaintiff was indebted to him and he took Administration and retained his own Debt in his hands Bailiff of a Colledge claims the Liberty of the University but denied to him Special Verdict Nota well Appearance though at another Day the same Terme saves the Bond. Demand necessary for a Nomine penae Costs omitted in the Roll and Error brought and demed to be amended Nota. The Venire facias mis-awarded The Defendant pleads that be was ready to grant and naught No Demand necessary Note this diligently Fully administred no good Plea by an Administrator to a Scire sacias to revive a Judgement had against the Intestate An Executor an Assignee in Law Nota. Nota. Nota. An Executor by wrong shall not by his Plea prejudice a rightfull Executor Condition of non-payment of Rent to re-enter the Rent was behinde but before re-entry accepted the Estate is confirmed by the Acceptance The Defendants name mis-taken in the Venire and a new Triall awarded No costs against an Executor Devise of the profits of the Land it self Debt brought against an Excutor after full age for Goods wasted by the Administrator during his minority Release of all Demands a good Barr in Rent not then due Judgement arrested for improper words without an Anglice The want of a Bill not helped by the Statute of Jeofayles To forbid no Breach The Defendant pleads a Plea by which he pretends the Plaintiff to be barred in another Suit but no Barr. One by his own Election cannot be Executor for part and not for part Tenants in common Severall Debts Debt lies by him to whose use money is delivered Debt upon a Statute of Perjury at a Commission issuing out of Chancery not ly Outlary pleaded in Barr and Nul tiel record pleaded and in the mean time the Outlary reversed Judgement that the Defendant should answer over No Escape lies against a Sherif vpon a Capias upon a Recognisance out of the Chancery Request to make Assurance generally and good Appearance upon warning and for default adjudged naught Action of Debt upon the Statute of E. 6. for Tithes Sufficient to say the Plaintiffe is Proprietor without shewing the Title Misprision of the Clerk amended after Triall Judgement reversed by Writ of error being in the disiunctive The Plaintiffe had no Interest but 〈◊〉 rendring of the Land Lessee at Will cannot determin his will within the year but must answer the whole Rent The Plaintiffe not bound to alleadge a speciall breach when the Defendants Plea continues speciall matter Debt for Flemish Money but demanded by the name of 39. l. English If the Obligor marry the Obligee the Bond gone Judgement obtained by an Administrator and after Administration revoked and party took in Execution and delivered because erroneous To plead an Appearance and not say Prout patet per Recordum naâ—gâ—… Nota. Award void for the incertainty for being the Judgement of one it ought to have plainness and certainty Judgement obtained by President of the Colledge of Phisicians his Successor after his Death and not his Executor shall have Execution Assurance Tithe shall be paid of Wood above twenty years growth if it be not Timber Variance between the Obligation and count shall not be shewed after imparlance Demand of Rent must be at the place of Payment Judgement reversed in an inferior Court for want of this word Dicit Want of an Original after a Verdict no Error but a vitious Original is Error Plea naught for want of a Traverse Nota. Plaintiff in Debt for Tithes need not be named Rector in the Plaint in the upper Bench. Tithes cannot be leased without Deed Judgement reversecâ— for Error in the Judgement If a Suggestion in part need proof and part doth not no Costs Judgement reversed for Error in changing the Defendants Additions Action upon the Statute for Tithes the Statute mistaken yet it being according to divers Presidents ruled good Bill abated for not naming an Infant Executor in the Action although Administration was granted during his minority Action upon the Statute 32 H. 8. of Arrerages of Rents Action lies not upon that Statute for Arrerages of Copy-hold Rents Action of Debt brought upon a Bill for money received to another use An Executor of his own wrong cannot retain Goods in his hand to pay himself Primo deliberat shall not be pleaded without a Traverse If the Plaintiff assign no breach he shall never have a Judgement though he hath a Verdict Rent reserved at Michaelmas or within ten dayes after due at Michaelmas A Judgement reversed by Writ of error notwithstanding a Verdict and the Statute of 18 Eliz. Executor shall not pay Costs upon the statute of 4 Jacobi cap. 3. How a reservation for Rent shall be construed One must not plead in discharge of the Obligation but of the Condition contained in the Obligation A contingent Debt cannot be discharged False Latine shall not overthrow an Obligation A Deed of gift good against him that makes it notwithstanding 13 Eliz. and against his Executors and Administrators Action brought upon an Obligation to stand to the Award of four or two of them Award made by two good Debt Judgement arrested for Nil shewing in what Court the Deed was inrolled Judgement reversed for want of these words in a Tales at Assises nomina Jurat c. By a Release of all demands money to be paid at a day to come may be released before the day If the Defendant confess he hath Assets the Sheriff may return a Devastavit Action of Debt brought against the Sheriff upon an Escape for one taken upon a Capias upon a Recognisance and adjudged that it would not lie Debt brought upon a Lease made to an Infant One may take his Executioâ— either against the principall or Bail at Election An Action of Debt brought upon a Bond
Defendant replies that the Plaintiff had entred into part of the Premises the Day before the Day of Payment and so at Issue upon that and Exception was taken because the Plaintiff had alledged no Demand to be made and the Court held that was implied by the Issue and that it was not necessary FRyer Administrator of Mary Costiden of the Goods not administred by Mary Fryer Executrix of the said M. C. versus Jacobum Gildiich Executor of N. Pope Hill 11. Jac. rotulo 1990. The case was this two were bound to one and the Obligee makes the Wife of one of the Obligers his Executrix and one of the Obligers makes the same Woman Executrix and she dies and the Plaintiff takes Administration of the Goods of the Woman not administred and Judgement was given for the Defendant by the whole Court If an Executor hath a Lease and purchaseth the Fee-simple the Lease is gone but it shall be Assets in the Executors hands if a persnal thing be once gone it is extinct for ever If the Husband had survived the Wife he should be charged HArcock Executor of Harcock versus Wrenham Administrator of Wrenham Hill 11. Jac. rotulo 1963. A Scire facias brought to revive a Judgement had against the Intestate and the Defendant pleads Plene administravit which was held a naughty Plea by the whole Court for he cannot pay so much as Funerals before he pay the Judgement and therefore that general fully administred is naught The Jury found that the Intestate in trust conveyed one Lease to Fisher and that Fisher promised upon the Payment of 300. l. to re-assure the Interest to Wrenham and after his Death the Administrator the Defendant preferred a Bill in the Chancery as Administrator against Fisher and that the Chancery ordered that Fisher should pay the Defendant for his Interest in the Lease more then the summ received the summ of 1060. l. which was paid the Defendant accordingly and whether that should be Assets was the Question and it was held to be Assets If an Executor make gain of the Testators Money that gain shall be Assets the Doubt in this case was because this was but in Use and now whether the Court shall take notice of this Use they shall being found by the Jury Judgements shall be paid before Statutes or Recognances and Judgement was given for the Plaintiff and although in this case the Barr of generally administred be naught yet an Issue taken thereupon and tried shall not arrest the Judgement for the Plaintiff PEase and Stilman Executors Hanchet against E. Meade Mich. 11. Jac. rotulo 945. An Action of Debt brought upon an Obligation with a Condition if Meade his Executors Administrators or Assignes or any of them shall pay 20. l. within the Porch of the Parish Church of R. unto such person or persons as the said Hanchet shall by her last Will and Testament in writing limit nominate or appoint the same to be made in manner c. The Defendant pleads that the said Hanchet by her last Will and Testament in writing hath not nominated limited or appointed to what person or persons the said 20. l. should be paid The Plaintiff replies and sues that the Testator made him Executor and died and that he took upon him the burden of the Will and that the Defendant did not pay the Executor the Money and a Demurrer thereupon And if it had been to pay to her Assignee that she should name the Executor should have it such things as go by way of Executorship shall be to the Executor without nomination or appointment STannard versus Baxster Trin. 9. Jac. rotulo 1123. An Action of Debt brought for Damages recovered in an Assise of Nuzans for stopping the way before special Commissioners The Defendant pleads no such Record and the Record was delivered into the Court by the special Commissioners TRin. 8. Jac. rotulo An Action of Debt brought upon a Bond with a Condition for performance of Covenants of an Indenture The Defendant confesses the Bond and that after the making the Bond and before the purchasing the Plaintiffs Writ the Indenture by the consent and assent of Plaintiff and Defendant was cancelled and the said Plaintiff cancelled the said Indenture and it was held a naughty Plea by the said Court for it did appear but that the Bond might be forfeited For he ought to have pleaded performance of Covenants untill such a Day which Day the Indenture was cancelled BRook versus Smith Hill 9. Jacobi rotulo 829. Two Tenements in Common make a Lease and reserve a Rent and Covenant that neither should release and one of them releaseth his part this is a Breach for that in Debt they both should joyn and now by the Release the Action is gone LAny versus Aldred and another Executor Trin. 10. Jac. vel Pasch 9. Jac. rotulo 504. An Action of Debt brought against them as Executors one pleads that he was Administrator and that the Administration was committed to him by the Bishop and pleads a Recovery against him as Administrator and that he had fully administred and had no Assets to satisfie the Judgement and the other Executor acknowledged the Action and the Plea was held a good Plea but it was said the Defendant might have defeated the Action which was brought against him as Executor and therefore they would infer that it was no good Plea but it was a good Plea and it was held by the chief Justice that if an Executor of his own wrong be sued with a rightfull Executor in one Writ the Executor of his own wrong shall not by his Plea prejudice the rightfull Executor MArsh versus Curtis Hill 38. Eliz. rotulo 132. An Action of Debt brought upon an Obligation for performance of Covenants in a Lease upon which Rent is reserved and the Condition was that if the Rent should be behinde then lawfull to re-enter and the Rent was behinde and before re-entry the Rent was accepted The Question was whether he may enter for the Condition broken after the acceptance of the Rent Sir Edward Cook was of opinion that by the acceptance of the Rent he did confirm the Estate but if a Bond be entred into to perform Covenants in a Lease whereupon Rent is reserved and a Fine to be paid with a Condition of re-entry for not paying the Rent or Fine and if the Rent be received and the Fine not paid the acceptance of the Rent doth not take away the Condition for not paying the Fine R. Milton versus R. Pearsey Trin. 10. Iacobi rotulo 445. An Action of Debt brought and in the Venire facias the Defendants name was mistaken for the Venire was to impannell a Jury between R. Milton Plaintiff and I. Pearsey Defendant in a Plea of Debt and the Court held the Venire as none and a new Triall awarded and the like Judgement was given Trin. 7. Iacobi rotulo 787.
Indenture the Covenant was for quiet injoying without let trouble interruption c. The Plaintiff assigned his Breach that he forbad his Tenant to pay his Rent this was held by the Court to be no Breach unlesse there were some other Act and the Defendant pleaded that after the time the Plaintiff said that he forbad the Tenant to pay the Rent the Tenant did pay the Rent to the Plaintiff LEvel versus Hall Pasch 9. Jac. rotulo 805. An Action of Debt brought upon an Obligation to which the Defendant pleads that the Plaintiff brought another Action upon the same Bond in London to which the Defendant there had pleaded Non est factum and it was there found that it was not the Defendants Deed and in London the Entry is upon such a Verdict that the Defendant shall recover Damages against the Plaintiff and that the Defendant should be without day c. but no Judgement that the Plaintiffe should take nothing by his Writ and therefore no Judgement to be barred in another Suit but barr the Plaintiffe for it is onely a triall and no Judgement and the Plea was adjudged naught by the whole Court MIch 15. Jac. Rotulo 2215. One made another his Executor and that Executor died and made another his Executor and the last Executor refused to own his first Will as to his goods and this matter was pleaded in his Action of Debt brought by an Administrator of the Goods of the first Executor pretending the Administration was void although the Executor refused to be Executor as to the Goods and the Court held the Administration void for the Executor cannot be Executor for part at his own Election and not for part and the Defendant pleaded that the Executor should not bring his Action as Administrator but as Executor WHerwood versus Shaw Mich. 44. and 45 Eliz. Shaw Executor of A. brought an Action of Debt against Wherwood Administrator of Feild upon a Bill made by Field to A. by which Feild doth acknowledge himself to have received of one P. forty l. to be equally divided between the said A. and B. to their use and upon a Judgement given in the Common Pleas Wherwood brings a Writ of Error and the Judgement was affirmed the matters moved were i. because the forty pounds was given to be equally divided between A and B. therefore they were Tenants in common of it and Shaw should have joyned B. in the Action with himself as Tenants in common are to joyn in personall action but over-ruled that in this case there were severall Debts to wit twenty pound to one and twenty pounds to the other as in case of ten pounds rent reserved upon a Lease to wit five pounds at the Feast of Michaelmas and five pounds at the Feast of the Annunciation yet it is but one Rent and this case is not to be resembled to the Cases of Interest as in the 20 Eliz. where Land or Lease be giuen to two equally to be divided for there they are Tenants in common The second thing moved was whether Debt or account did ly and adjudged that although no contract was between the parties yet when either money or goods are delivered upon consideration to the use of A. A. may have an Action of Debt and of that opinion was Mountain 28 H. 8. in Core and Woods Case and also there is a President of such Actions of Debt in the Book of Entries BRoad versus Owen Mich. 44 and 45 Eliz. The Plaintiffe brought an Action of Debt upon the Statute of 5 Eliz for Perjury against the Defendant the case was thus one Low was Plaintiffe against Brode in the high Court of Chancery and upon Bill and Answer such matter appeared to the Lord Keeper that he ordered that one Labourer should become party to the Bill against Brode and afterwards one Commission issued out of Chancery between Labourer and Brode to examine Witnesses by which Commission Owen the now Defendant was examined on the behalf of Labourer and did depose directly for Labourer against Brode by reason whereof one Order and Decree was made in the Chancery against Brode and for that cause Brode brought his Action of Debt against Owen upon the Statute of Perjury 5 Eliz. for one party grieved by the Oath and Deposition of another and Owen demurrs in Law and by the opinion of Gaudy and Yelverton Justices the Action would not lie for the words of the Statute are where a man is grieved and damnified by a Deposition in one Suit between party and party and in this Case it appeared that Labourer was no party to the Suit but came in by an Order and no Bill depending either against him or brought by him and so out of the Statute for it is penall and to be taken strictly and quaere if he in the Reversion joyn in aid and is grieved and prejudiced by an Oath and Deposition may maintain an Action of Debt upon this Statute for he may undoubtedly by the Common Law have an Attaint GReen versus Gascoin Pasch 1. Jacobi An Action of Debt brought upon an Obligation for an hundred pounds to which the Defendant pleads in Barr to the Action an Outlary against the Plaintiff and shews it incertain the Plaintiff replies Nul tiel record and the Defendant had Day till the next Term to bring in the Record and in the mean time the Plaintiff reverses the Outlary by which it is become in Law no Record according to the 4 H. 7. 12. And Yelverton moved the Court for the Defendant that although in Law there was a Failer of the Record yet the Defendant ought not to be condemned but shall answer over according to the 6. of Eliz. Dier fol. 228. where it is adjudged that Failer of the Record is not peremptory and so adjudged for it was no Default in the Defendant his Plea being true at such time as it was pleaded with mark WEaver versus Clifford Action of Debt brought for an Escape the Case was thus upon the Nichils returned against a Conusor in Chancery a Capias was awarded out of the Chancery against him by vertue of which he was taken by the Sheriff and suffered to escape and adjudged that no Action would lie against the Sheriff in this Case for a Capias lies not upon a Recognisance but onely a Scire facias and therefore when a man is taken upon the Capias he is not a Prisoner by the course of Law for the Law hath not ordained any means to arrest him and is therefore in Custody without Warrant and no Escape and it is an illegal Commitment and so is the â—ratuâ—e of Westminster the 2. to bâ— constâ—ued which gâ—… Action against the the Gaolor to wit where the party is in Execution by course of Law and although the Chancery doth award a Capias upon a Recognisance and that there are divers Preâ—â—lents of it et it is bâ—t the use of that
of Clanrickard with whom Yelverton was of Councel it was resolved that if the Issue be upon the custome of Tithing and that it be found against the Defendant he shall pay the value expressed by the Plaintiff in his Declaration for because by the collateral matter pleaded in Barr the Declaration is in whole confessed SMith versus Smith Trin. 6 Jacobi one Bisse made K. his Wife and John his Sonne being one year old Executors and K. solely proved the Will and afterwards married the Plaintiff and they two brought an Action of Debt as Executors against the Defendant and the Defendant pleads in abatement of the Bill that John was made Executor with K. and is yet in life and not named the Plaintiffes reply that John was but of the age of one year and that K. proved the Will and had Administration committed to her during the minority and that John is and was at the time of the Writ purchased within the age of seventeen years and upon that Yelverton demurred and adjudged for the Defendant that the Bill should abate for both of them in truth were Executors and ought to be named in the Action and although by the Administration granted during the minority K. had the full power yet the Infant ought to be named he being Executor GOmersall versus Ask Trin. 6. Iacobi The Defendant brought an Action of Debt against the Defendant as Administrator of her Husband upon two former Judgements given in two Actions of Debt against the intestate and shews the recoveries the Defendant pleads that the intestate entred into a recognisance 35 El. in Chancery to Sir Henry Bechel and shows that after the Judgements had by the Plaintiff Sir H. obtained a Judgement against the intestate upon the Recognisance and that she hath not assets to satisfie the Plaintiff of the intestates Goods beyond Goods that are chargeable and liable to the Judgement upon the Recognisance to which Plea the Plaintiff demurres and by Fennor and Williams justifies the Plea in Barr was good for although the Plaintiffes Judgements mentioned in his Actions are before Sir H. Judgement yet because the Plaintiff by his Action doth not demand Execution of the Judgements but onely his Debt recovered for this Action brought it as an originall and in the same Court as if he did demand the Debt upon the first Obligation and therefore because the Plaintiff had not sued out a Scire facias to execute the first Judgements but had prosecuted a new originall the Plea is good and allowable as it had been upon the said Obligation but Yeluerton and Fleming were of a contrary opinion for the Plea had not been good against the intestate himself and the Executor or Administrator represents his person and therefore the Plea is not good but onely in excuse of a Devastavit and they were of opinion that the Action brought by the Plaintiff was in nature of a Scire facias for he demanded the Debt in another course then it was at first for that Debt which was but matter of escript is now become by the Judgement to be Debt upon Record and of so high a nature that the Judgement being in Force he can never have an Action upon the Obligation which is adjuged in Higgins Case Co. 6 Rep. but Cook doubted and the Plaintiff dying the Court did not resolve APleton versus Baily Mich. 6. Jacobi Apleton as Executor of Apleton brought an Action of Debt against Baily for the Arrerages of diverse Rents as well Copy-hold Rents as Free-hold Rents pertaining to a Mannor whereof the Testator was seised and thereof died seised and the Rents were not paid to him in his life time by reason whereof they belonged to the Plaintiff as Executor And the Defendant though he was requested had not paid against the form of the Statute of the 32 H. 8. And the Court that the Action did not ly for the Arrerages of Copy-hold Land for the Statute of the 32 H. 8. doth not extend to them but only to Rents out of Free Land Secondly It lies not for the Rent of free Land because the Plaintiff hath not shewed in his Declaration that the Defendant had attorned to the Testator in his life And although in pleading it is good to alledge a Feoffment of a Mannor without pleading any Livery or of any Attornment of Tenements but when the Rent of any Free-hold Land comes in Debate it behoves both the Owner of the Mannor and and his Executor that demands it to convey the privity between the Tenant and the Lord which ought to be by attornment for Rents and Services rest not without Attornment which mark PEirson versus Ponuteis Mich. 6. Jacobi The Plaintiff as Executor of Peirson brought an Action of Debt against Jo. Ponuties of London Merchant that he should render to him three and thirty pounds twelve shillings in that the Defendant 5. Oct. 1598. at London c. By his Bill obligatory hath acknowledged himself to owe to the Testator 1518. Florens Polish which then amounted to thirty three pounds twelve shillings to be paid to the Testator Ad solucionem festi purificat c. Called Candlemas day next insuing and to that payment had obliged himself by the same Bill And the Plaintiff avers that Predicti soluciones dicti festi purificat c. Next after the making the Bill were according to the use of Merchants the twentieth of February 1598. Yet the Defendant had not paid the 1518. Florence Polish or the thirty three pounds twelve s. to the Testator nor to the Plaintiff The Defendant pleads Non est factum and found against him and moved in arrest of Judgment that the Declaration was not good because first the payment of Candlemas is not known in our Law but that was not allowed for that which is unknown in ordinary intendment is made manifest and helped by the Averment in the declaration because that payment among Merchants is known to be upon the twentieth of February and the Judges ought to take notice of those things that are used amongst Merchants for the maintenance of traffick and the rather because the Defendant doth not deny it but pleads non factum by which he confesses the Declaration to be true in that averment Secondly it was objected that as the Case is the use of Merchants is not materiall because the Testator by any thing that appears was not a Merchant but it was not allowed because the defendant that bound himself to pay was a Merchant and the Testator ought to take the Bill as the defendant would make it and he chose to make the payment according to the use of Merchants and not according to the Ordinary intercourse between party and party which mark this by the whole Court TAlbot versus Godbold Mich. 6. Jac. Godbold 28 Eliz. sealed a Bill to the Plaintiff made in this manner memorandum that I have received of Edw. Talbot who was the Plaintiffes Testator to the
Arbitrators are made Judges by the assent and election of the Parties and it appears that the parties put their trust not in the four joyntly but joyntly and severally and the Ita quod c. is an explanation of all the Condition that they four or any two of them might arbitrate all matters between them and so much appears 2 R. 3. 18. where two of one part and one of another part put themselves to the Award of I. S. now by this Submission I. S. may arbitrate as well any matters between the two parties of one part as between them and the third because in the intent of the parties the end of their Submission was to have peace and quietnesse and 4 H. 4. 40. the Condition of a Recognisance was that if A. A. shall stand and abide the Award of four named three or two of them of all matters c. which is a division of their power and observe in the principal Case that untill the Ita quod comes the Condition is not perfect for all the Condiâ—… is but one Sentence BRisco versus King Trin. 9. Jacobi The Plaintiff brought an Action of Debt upon a Bond for three hundred pounds with a Condition that the Defendant should perform all Covenants Clauses Payments and Agreements contained in one Deed poll of the same Date made by the Defendant to the Plaintiff the Defendant by way of Plea sets forth the Deed poll in haec verba in which Deed was contained one Grant and Bargain and sale of certain Lands made by the Plaintiff to the Defendant for one hundred pounds paid and two hundred pounds to be paid in which Deed there was one Proviso that if the Defendant should not pay for the Plaintiff to one J. S. forty pounds to J. D. forty pounds c. at such a Day that then the Bargain and Sale should be void and the Defendant pleads that he had performed all the Covenants c. comprised in the Deed the Plaintiff assigned a Breach for the not paying of forty pounds at the Day according to the Proviso and the Defendant demurrs and adjudged for the Defendant by the whole Court for the Condition bindes the Defendant to perform other Payments then such as the Defendant is bound by the Deed to perform for the Obligation was made but for the strengthning of the Deed and the Deed requires not any compulsory Payments to be made but leaves it to the will of the Defendant or to make the payments specified in the Proviso or in Default thereof to forfeit the Land to the Plaintiff and therefore it appears that it was not the intent and meaning of the parties to make an Obligation with a Condition repugnant to it and contrary to the Deed poll of Bargain of Sale and by this means the Payment of forty pounds to J. S. which is made voluntary by the Deed poll shall be made compulsory by the Obligation but the word Payments in the Condition of the Obligation shall have relation onely to such payments contained in the Deed poll which are compulsory to the Defendant and not otherwise and because the neglect of the payment of forty pounds to J. S. assigned for the Breach is denied to be voluntary for the Defendant to pay or not to which the Condition of the Obligation cannot in any reasonable construction extend therefore it was adjudged against the Plaintiff WOolby versus Perlby Mich. 9. Jacobi An Action of Debt brought upon a Lease for years the Plaintiff derives his Title by the grant of the Reversion by way of bargain and Sale in Fee from the first Lessor and declares that by an Indenture of such a Date one grants bargains and sells for money the Reversion to him in Fee which Indenture was inrolled such a day according to the form of the Statute and because he shewed not in his Declaration in what Court it was inrolled and the Statute of 27 H. 8. Parles of many severall Courts and that it is no reason to put the Lessee to such an infinite labour to search in all Courts as well at Westminster as in the Countrey with the Clerk of the Peace and for this cause after a verdict a nil capiat per Billam entred by the whole Court SIR George Savill versus Candish Hill 9 Jac. The old Countesse of Shrewsbury had a Verdict against Savel and upon a challenge of the Sheriff on the Plaintiffs part of the County of Derby the Tenure was directed to the Coroners who returned all the Writs and at the Assises a Tales was awarded and the name of one of them of the Tales was Gregory Grigson c. and by postea returned by the Clerks of the Assise in the Common Pleas the Tales was returned to be by the Sheriff but in the entring up the Judgement it was made by the Coroners and the name of the man of the Tales by the Clerk of the Assise was restored according to his right name Gregory but entred in the Roll by the name of George and upon that Judgement Savill brought a Writ of Error which depended ten years and more and the first Plaintiff who was the Countesse of Shrewsbury died this matter being indiscussed and Candish as Executor to the Countesse revived all by Scire facias why he should not have Execution and after many debates the Judgement was reversed for three causes first because upon the Pannell of the Jurors names after the twenty four Jurors were named at the foot of the Pannell two names were added to the Jurors which in truth were the men of the Tales but no mention was made that they were the names of the Jurors impannelled de novo according to the form of the Statute which ought to be for at the Common Law the Justices of assise cannot grant any Tales to supply the default of the first Jurors but it is given only by the Statute of the 35. H. 8. which ordains that their names shall be added to the first Pannell and this cannot be discerned to be done accordingly if such a stile and Title be not made over their names viz. nomina Jurator de noto apposit secundum formam Statuti to distinguish what is done by the Common-Law and what by the aid of the Statute and also the Coroners names ought to be added to the Tales at the bottom of the Pannell and in this Case their names were onely indorsed which was upon the Return of the first Pannell and although divers Presidents were shown to the Court wherein the names of the Jurors de novo appoposit c. were united upon the Pannell yet the Court did not regard them because it seemed that they passed in silence without debate had upon them the second cause was because it appeared by the Return of the postea that the Tales were returned by the Sheriff which is error in the first Processe to the Coroners and although in the Entry in the Common Pleas of
Statute and if the Words do not extend to that then the Equity of the Statute shall not extend to that and he said that Copy-hold is not within any of the Statutes which are made in the same yeare as the Statute which gives Elegit and such like and to Littleton that an Estate by copy is where Lands are given in Fee-simple Fee-taile and that Formedon lies for that with which agrees 10 Ed. 2. Formedon 55. It seems that the Estate taile here mentioned shall be intended Fee-simple conditionall at the Common Law and the Formedon in Discender which was at the Common Law for alienation before Issue And so Littleton shall be intended For the Estate is within time of memory see Heydons case that a Copy-hold Estate is an Estate in being within the Statute of 31 H. 8. And Manwood there said that insomuch the Estate of that is created by custome and the Estate taile is created by Statute yet it shall not be within the Statute and he said that the case of 15 H. 8. B. Copy of Court 24. is repugnant in it self in the words of Formedon for he saith though that Formedon was given by Statute and was no otherwise in Discender yet now this Writ lies at the Common Law and it shall be intended that this hath been a custome there time out of minde c. And so he concluded and prayed Judgment for the Plaintiff Pasche 9. Jacobi 1611. in the Common Bench. Yet Bearblock and Read SEE the beginning before Hillary 8. Jacobi this Case was argued by Hutton Serjeant that the Plaintiff in the Action of Debt ought to Recover for if Executor may pay Debt due by the Testator by Obligation before Debt due by Judgement this shall be a Devastavit as it is resolved in Trewinyards Case 6. and 7. Edward 6. Dyer 80. 53. And he shall be charged for the Iudgement with his owne goods And so it was adjudged between Bond and Hales 31. Eliz. that Judgement at the Common Law shall be first satisfied before the Statute which is but a Pockett Record and Medium redditer in invitum Also it was adjudged in Harrisons Case 5. Coke 28. b. That Debt due upon an Obligation shall be first payd before Statute with Defeasans for performing of Covenants the which Defeasens is not broken and also it is adjudged between Pemberton and Barkham here cited that Judgement shall be satisfied before Statute Merchant or Staple or Recognizance though that the Statute be acknowledged before the Judgement had by the Testator See this Case in Harrisons Case 5. Coke 28. b. and in 4. Coke 60. a. Sadlers Case upon which he infers that if an Executor first satisfie a Statute or a Recognisance before a Judgement that this shall be a Devastavit as well as if he satisfies an Obligation first as in Trewynyards Case and that when the Plaintiff which hath Judgement the Executor may aid himselfe by Audit a querela by this matter subsequent Quere of Doctor Druryes Case as in 7 H. 6. 42. in Detinue against Gamishe and Judgment had for the Plaintiff If the Judgement be reversed restitution shall be made to every one which hath losse So here by Audita Querela if the Executrix hath not more then was taken in execution by the Statute and it seemes to him that the Judgement in the Scire Facias shall not be a Barr in this Action for the Judgment remaines Executrix and the Plaintiff may have Action of Debt upon that But of the contrary if the Plaintiff had brought Action of Debt upon the Judgement and had been barred then shall be barred in Scire Facias also But the Plaintiff this notwithstanding may have Scire Facias upon surmise that there are new assets come to the hands of the Executor and so he concluded and praied Judgement for the Plaintiff Nicholls Serjeant for the Defendant relies only upon the Judgement had upon the Scire Facias and that till that he Defeated the Plaintiff cannot maintaine Action of Debt for the Action of Debt is nothing but demanding of Execution and for that till the first Judgement be Defeated the Plaintiff hath no remedy at the Common Law All things which barr the Execution of the Judgement in Scire Facias these shall be Barrs in an Action of Debt as in Baxters Case here last adjudged in an Action upon the Case for slanderous words the Defendant pleads that he had justified the speaking of these words at another time in another Action brought against him and had a verdict and Judgement upon that and so demands Judgement and adjudged a good Plea till the first Judgement is reversed for Judgement is the saying of the Law and 13. Eliz. Dyer 299. 34. in Debt for Costs recovered in a Writ of entry the Defendant pleads that the Plaintiff hath sued an Elegit which was Executed and a good Barr in an Action of Debt and so 1. and 2. P. and M. Dyer 107. 24. In Debt for Dammages recovered in Assise the Defendant pleads in Barr that after the verdict given and before Judgement the Plaintiff entred into the Land and there no Judgement is given But it seemes if the Plaintiff fayl of Course that the Common Law prescribes that then he shall not have Execution for of those things which rightly are Acted let there be Executions but if the Defendant in the first Action had pleaded a release and Judgement was given upon that against him he cannot plead that againe for it runs into the thing Judged 34. Ed. 3. in Debt against an Executor and part of the assetts found the Plaintiff cannot have new Scire Facias without Averrment that there are new assetts and 34. H. 6. Action with averment that there are assets and Judgement good both waies and presidents shewed of both Courts And he intended that the Executor could not have helped himselfe by Audita Querela unlesse he feares to be impleaded but after Execution he cannot have Restitution and so concluded and praied Judgement for the Defendant Coke cheife Justice that there cannot be a Devastavit in the Wife unlesse that it be voluntary payment by her for the Statute of 23. H. 8. gives present Execution of a Statute Staple without Scire Facias So that the Wife had no time to plead the Judgement and for that this unvoluntary Act shall not be a Devastavit for she is no agent but only a sufferer And at the Common Law if the Plaintiff hath Judgement in an Action of Debt after the yeare he hath no remedy but new Originall and this mischeife was remedied by the Statute of Magna Charta which gives Scire Facias in place of new Action But it seemes to him that the Barr in the Scire Facias shall remaine good Barr till it be reversed as in 2 Rich. 3. A man hath election to have action of Detinue or action of Trespasse and he brings his action of Detinue and the Plaintiff wages his Law and after
a possibility only which cannot be granted surrendred or released and yet he agreed that if Lessee for life grant or demise the land all his Estate passeth without making of any particuler mention of it as it is agreed in 10. Eliz. Dyer And for that when the Lessee hath devised the Lands to his Father for his life that which remaines is only a possibility for it doth not appeare for what yeares the Sister shall have it and for that meerely uncertaine 7. Eliz. Dyer 244. The King Ed. 6. appropriated a Church to the Bishop to take effect after the death of the present Incumbent the Bishop after that makes a Lease for yeares to begin after the death of the Incumbent and void for the uncertainty for the Bishop hath no perfit Estate but future Interest which is meerely impossibility and with that agreed Locrofts Case in the Rector of Cheddingtons Case 1. Coke where Lessee for yeares makes assignement of so many of the yeares as shall be to come at the time of his death and void for the uncertainty insomuch that it is meerely possibility for that which may be granted or surrendred ought to be Interesse Termini at least And he supposed it could not be released insomuch that he to whom the release is made hath all the Tearme if he lived so long and so he concluded and praied Judgement for the Plaintiff Harris Serjeant for the Defendant argued that the first devisee had two Titles one as Executor and another as a Legatee and before entry and after that he had entred also the Law doth adjudge him in as a Legatee and before that he enter he may that grant over notwithstanding that he hath not determined his Election for the Law vests the property and possession of that in him before any entry but to make an election there ought to be some open Act done as it is agreed in Welden Eltingtons Case where that the first devisee which was Executor also made expresse claime to have the Tearm as Legatee and not as Executor and so vested the remainder also see Com. 519. b. And so in Paramore and Yardlies Case Lessee for years devises his Tearme to his Executor during his life to educate his Issues the which the Executor doth accordingly and this open act was resolved to be a good election and in Mannings case 8 Coke 94. b. The Executor which hath the 1. Estate devised to him saith that he to whom the Remainder was limited shall have it after his Death and this resolved to be a good Execution and election and it is there resolved that such Election made by the particular Devisee is a good Execution for him in remainder but here is not this Election to have this as Legatee nor Executor for there is not any overt Act made by which this may be done Secondly he conceived that this is no remainder but Executory devise as it is agreed in Mannings Case and that this may be done by Devise which cannot be done by the party by act Executed and for that he conceived that there is no possibility but an Estate Executed and vested in him which is Executor though there be no election made nor Execution of the Legacy and admitting that it is but a possibility yet he conceived that it is Propinqua possibilitas insomuch that the Tearme is longer then it may be intended that any man might live insomuch that Adam lived but 950. yeares and this is five thousand yeares which is longer then any man in the world ever lived and he said that it is agreed in Fullwoods Case that possibility may be released to a possession and with this agreed the opinion of Strange in the 9 H. 6. 64. And so warranty may be released which is meerly in contingency as it is agreed in Littleton and power of revocation may be extinct by release of him that hath the possession of the Land and so he concluded and prayed Judgment for the Defendant Nicholls Serjeant for the Plaintiff conceived that the Remainder is in Esse and not determined by the Release And first he conceived that the Remainder was executed insomuch that the Release was made at the Request of the Father which was the first Devisee for this shewes his assent and implies that he took notice of his Remainder and assented to it and he sayd it was adjudged in Doctor Lawrences Case that the speaking of these words by the Executors that is that they were glad of the Devise was a good Execution and assent of the Legacy Secondly He conceived that it is only possibility and for that cannot be released or granted and he saith that the Law hath great respect of possibilities that Estates may revert and for that it is adjudged in the 13 of Richard 2. Dower 55. If Tenant for life grants his Estate to him in remainder in tayl for his owne life the Tenant enters takes a Wife and dies she shall not be Indowed but the Tenant for life shall have it againe and it shall be as it had been let to a stranger and to this purpose also he cited 18. Ed. 3. 8. Counter-Plea of voucher 8. And it was adjudged in Middletons Case 5. Coke 28. a. that an Executor before probate of the Will may release a Debt but not an Administrator before Administration granted see Com. 277 278. Fox and Greisbrookes Case and in 6. Ed. 3. Lessee for anothers life rendring Rent the Rent was behind and the Lessor releases to the Lessee all Debts he For whose life dies and there the Release determines and discharges the arrerages for it is a duty and Debitum is Latine as well for Debt as for duty also release bars the Lord and Writ of deceit for reverser of a Fine levied of land in ancient Demesne as it is 7. H. 4 and yet Littleton saith that release of a futrue thing shall not be a barr and for that if Conusee of Statute Merchant release all his Right in the land yet he may extend the Statute 15. assis And so if a mad man release and after come to his wits and dies Quere if the Heire may have a Writ of non compos mentis And he said that it was adjudged in the 25. of Eliz. If an Infant levie a Fine and after he levies another Fine this shall be a Barr in a Writ of error for the reversing of the first otherwise of a release And here to the principall case to a release made by the Son in the life time of his Father without warranty And so upon all these cases he concluded and prayed Judgment for the Plaintiff Shirley Serjeant for the Defendant argued that the acceptance of Release by the first Devisee shall not be execution of the Devise as it was adjudged in Barramores and Yardleys case by the Education of the Issue or a Devise upon condition to pay money and the Executor pays it this is a good execution
is a stranger and doth not know if these Defendants are Executors or Administrators as it is said by Danby 9 Edw. 4. 13. And he conceived that the plea is good that the Defendants have not goods besides the goods which do not amount c. And divers presidents were cyted by him to this purpose as Trin. 18. Eliz. Rot. 1405. between Blanekson and Frye Hillary 40 Eliz. Rot. 902. Smalpeeces case and Trin. 44 Eliz. Rot. 1900. between Goodwin and Scarlet in all which the pleadings were all one with the plea in question and no exceptions taken to that and infinite other presidents may be shewed in the point for which cause he demanded Judgment for the Defendants Coke cheife Justice seemed that in an action brought against one as Executor he may plead that Administration was committed to him for such intent that the dead dyed Intestate and demands Judgment if action without traverse that he was Executor and with this agreed 1 Ed. 4. 2. a. 20 H. 6. 23. And so if the Ordinary be charged as Executor he may plead that he administred as Ordinary without traverse that he was Executor but only shewed that the party dyed Intestate and the Plaintiff ought to reply that he made a Will and the Defendant proved that and traverse that he dyed Intestate and with this agreed 9 Edw. 4. 33. and 1 Edw. 4. 11. And if an action be brought against Executor of his own wrong hee may plead that administration is granted to such an one and the Party dyed Intestate and demand Judgment if action for he shall not be charged for more goods then came to his hands But if a man administer of his own wrong and after rightfull administration is committed to him yet he may be charged as Executor of his own wrong insomuch that Right of action is attached in him But this seems for the goods that he hath administred before rightfull administration committed unto him And he cyted 14 Eliz. Dyer 305. b. where in debt brought against one as Executor which pleads never Executor nor ever administred as Executor and the Plaintiffe replies that he administred as Executor of the Will c. and so to Issue And in Evidence the Defendant shews Letter of administration to him committed of goods of the dead by which he administred them and before that he did not administer and this seems there to be good Evidence but the Book was Quere of that and for that he would rather plead that in abatement of the Writ and so the Book inclined also And he conceived here that the medling with the goods here by the Defendant as Administrator made him Executor of his own wrong insomuch that it was for Funeralls and when it is a work of Charity and the other is to preserve them And the Defendant hath not conveyed himselfe to be Executor insomuch that he said that administration was committed to him by an Arch-Deacon and he doth not say that Administration of right belonged to him to commit insomuch that hee hath but a sub-ordinate Jurisdiction And the Common Law doth not take notice that he nor no other but the Ordinary hath such power and for that the power of all which have such subordinate and peculiar Jurisdiction is pleaded that ought to be shewed as it seems by 1 Ed. 4. 2. a. b. 22 H. 6. 23. And the rather when this is pleaded by the Administrator himselfe which ought to have notice of that and make title to himselfe and if so it be then he conceived that the Recovery by Hornego was void and so all the goods confest remain as Assets Also he conceived that if the Executor allow a Writ to suffer Judgment to be had against him upon a Writ which is abateable he shall not have allowance of that but this shall be returned as Devastavit as in 10 Edw. 3. 503. a. If the Tenant vouch when he might have abated the Writ he shall lose the benefit of his Warranty So here and Com. Manwells case 12. a. 22 H. 6. 12. 〈◊〉 Also he conceived if a man be charged as Administrator where he is no Administrator he cannot plead that he never administred as Administrator but he ought to traverse the Commission of Administration as it appears by 21 H. 6. 23. And it seems also to him and by 9 Edw. 4. 33. that if a man be an Executor of his owne wrong and after administration is committed to him and he is charged as Executor after administration committed that the Writ shall abate otherwise if administration be committed hanging the Writ So if a man be made Executor and hee not knowing of that Iues letters of Administration he shall be named Administrator and if after when he hath notice of the Will he proves it then he shall be impleaded by the name of Executor for in such manner as the power is given to him by the Bishop he shall be charged and it seemes though that he plead where he is Administrator and is sued as Executor or otherwise in such manner that hee might have abated the Writ or suffer Judgment yet the Writ shall abate and he intended also that Executor of his owne wrong might pay debts due to another and shall be discharged and shall not be charged with more then he hath in his hands And if two Executors are joyntly sued and one confesse the action this shall bind him and his companion also for so much as he hath in his hands But if an Executor of his own wrong confesse the action this shall not prejudice him which is rightfull Executor and so he conceived that judgment ought to be given for the Plaintiff Warburton Justice conceived that the Barr is good notwithstanding that he did not shew that the Arch-Deacon had power to grant Administration insomuch it is no Inducement and the Defendant doth not relie upon it as Littleton saith in Trespasse where the Defendant pleades that it was made by two and the Plaintiff releases to one and if the Defendant pay due Debts it is not materiall whether he have Authority or not though that it be in another respect As if a man be Indicted of man-slaughter and aquitted and after is Indicted of Murder by the same man he may pleade another time aquitted insomuch that these are matters of substance But here it is but of forme and then if it be not shewed it is not materiall But the matter upon which he relied was insomuch that the Action was brought against two Executors and one hath confessed the Action And he intended without question that if this shall bind his companion and for that he will not dispute the other questions but declares his opinion cleerely that the Plaintiff ought to have Judgement against both these Defendants upon the confession of one and this shall bind his companion Wynch Justice conceived that the Plea is good by Administrator without traverse insomuch that it is to the Writ as it
the foundation is of Saint Paul and where it is a person certain but all the name is not so precisely recyted and to that which is sayd by my Brother Williams that no difference between conveiance made to them and by them I agree to him with this difference that is if conveyance be made to them of what by presumption in Law they are knowing and are parties as a Fine levied to them and such like but of a Devise it is not presumed that they have knowledge of that till the Death of the Devisor and he conceived that the Lease is voyd and this Decree shewed hath not changed his opinion but he moved the parties again to an agreement and would not as yet give Judgment Hitcham the Queens Attorney moved the Court for a Prohibition and the case was this two Merchants covenanted by Deed with their Factor to allow him ten pound a Moneth for his Wages and one Merchant sealed the Deed in England and the other sealed that upon the Sea and the Factor came and sued the Merchants in the Admiralty for his wages and by the Court insomuch that one of them sealed it upon the Land this is not any thing done upon the Deepe Sea and for that Prohibition was granted to him Upon a Motion made by Wincolt of the Middle Temple to dissolve a Prohibition granted to the spirituall Court upon a Libel for Tithes there the Court took this rule that when a Consultation is lawfully granted there a new Prohibition shall not be granted upon the same Lâ—bell and yet they qualified that with this difference that is when a Consultation is granted upon any fault of the Prohibition in form by the Mâ—sprision of the Clark or by mis-pleading of any Statute in that or such like there a new Prohibition may be granted upon the same Libell but if Consultation be granted upon the right of the thing in question there a new Prohibition shall not be granted upon the same Libell see the Statute of 5 Ed. 3. Pasch 9. Jacobi 1609. In the Kings Bench. BRomehead and Spencer Plaintiffs Rogers Defendant where an Action of Debt was brought by the Plaintiffs against the Defendant as Administrator during the minority of one J. S. and the Plaintiffs shew in their count that the said J. S. at the time of the Writ brought was and yet is within age of one and twenty years and verdict passeth against the Defendant and Crewe moved in arrest of Judgment that the Declaration was insufficient for they have declared that the Executor was within the Age of one and twenty years and the Administration during the nonage shall cease when the Infant comes to the Age of seventeen years so that he may be of the age of 17. 18. 19. or 20. years and yet the Administration ceaseth and so of Action against Administrator and so was the Opinion of all the Justices and the Judgment was stayed upon that according to the resolution of Piggotts Case 15. Coke 29. a. PLomer against Hockhead the Plaintiff declares in Ejectione firme upon a Lease made to him by three Husbands and their wives and that the Defendant ejected him and at the Issue upon not guilty and in evidence to prove this Lease and the delivery of that was shewed a Letter of Attorney made by the Husbands and their wives and the councel of the Defendant takes exception to the Declaration for they have declared upon a Lease by three Husbands and their Wives with a Letter of Attourney to make delivery and a married Wife cannot make a Letter of Attorney And so this is not a Lease of the Wives and so the Plaintiff had declared upon no Lease And the opinion of all the Court was that a married Wife could not make a Letter of Attorney And Williams Justice compared this to the case of an Infant as if an Infant makes a Feoffment or a lease and delivers that with his hand this is not but voidable But if it be executed by Letter of Attorney that is a disseisin to him but by Flimming and Williams if the Plaintiffs had declared upon a Lease made by the Husbands only this had been very good Thomas Malin Plaintiff in Replevin against Thomas Tully the case was The Queen Mary was seised of a Park called Eestwood Park in her Demesne as of Fee as in Right of her Crown and so being seised by her Letters Patent's let the said Park to two for their lives and after died And the Queen Elizabeth by her Letters Patents recyting the said Lease for lives and that the said Lessees were alive granted the said Park to Humphrey Lord Stafford and his Wife and to the Heires of the said Lord Stafford of the Body of the said Wife lawfully begotten And by the said Patent the same Queen by these words Ac de Ampliori et Vberiori Gracia Nostris Volumus et Declaramus quod si Predictus Dominus Stafford Solvat seu Solvi faciat prefacto Dominae Reginae 20 s. ad talâ—m Diem Tunc Concedimus quod predictus Dominus Stafford habebit revertionem predictam sibi et Heredibus suis And the Lord Stafford paid the said sum of twenty shillings according to the said Letters Patents and if he shall have Fee-simple or not was the question And it was objected that he shall not have it for the words of the Patent are that if the Lord Stafford paies the money Tunc concedimus the which words seeme that the Grant shall take effect in futuro and it was not a present Grant but when the money shall be paid then shee granted but it seemes to the Justice that it was a good Grant immediatly to take effect upon the payment of the money and the condition was precedent till that be performed the reversion remaines in the Queen Eliz. And the Queen might grant by one selfe same Patent as by diverse See 10. Assise 13. 7. Ed. 3. 8. Ed. 2. Feoffments and that the reversion shall not extinguish the Estate Tayl but they may well be together but otherwise it is of an Estate for yeares or for life Warburton Justice that the King is specially favoured in the Law and for that he shall not be inforced to attend in case as other persons ought to make attendance And for that in case where a common person may make a good Grant the King also may make a good Grant and in the case at the Barr if the Grant had been made by a common Person it had been good without question But the first objection that hath been made was that where a man hath made a Lease for life or for years upon condition to have Fee there the particuler Estate shall be drowned upon the increasiing of the Estate but the Statute of Westminster 2. preserves the Estate tayl that it shall not be drowned and that the Fee in this case doth not vest till the condition be performed for if the
a Book that ought not be given in evidence the Court above cannot remedie it except it be returned with the Postea A release to Tenant at sufferance void Commoner cannot chase the Lords Cattell if the surcharge be Common The Statute of 13 Eliz. for non-residence a generall law Where Husband and Wife shall be joyned and where severed in Action The Venire facias vicious no damages in Partition If the Jury find a man guilty in Trespass for a foot where it is layd in an Acre good enough and so in all Actions where damages onely are to be recovered Nota. Error assigned because in trespass nothing was entred of the Fine c. where it was a continued trespass and part of it was layd to be after the Pardon Nota. Nota. If the verdict find the tenure in substance though not in manner and form it is good intrespasse Difference between Replevin and Trespass In a writ to enquire of damages the Plaintif is not bound to prove the property of goods but the value only Where of his own wrong without such cause shall be a good issue and where not The Defendant prescribed for a passage over Land and naught it should have been for a way Nota. If the Lord cut the Wood in which the Commoner hath Estovers he shall have an Action of the Case but not an Assise Nota. Nota. Nota. An action will not lie for the counter-part of an Indenture without a speciall grant Nota. A man cannot Justifie the digging of a mans ground in hunting a Badger Nota. Nota. One Venu out of two places in the same County Whether a Copyholder may lop the trees growing upon his Copy-hold and held he might The Copy-holder is in by custome which is above the Lords estate The Copy-holder shall have trespas upon the Case against the Lord for cutting down of trees Nota. Nota. Nota. Nota. Nota. Nota. Waste in the Tenuit for digging of Sea coals Custodes Brev. Capital Prothon Sedi ' Prothon Try ' Prothon Cliri ' Warr. Cliri argenti Regi Cliri Error Cic. lib. 1. de Invent. Rhet. Prohibition upon the statute of 23. H. 8. Chap. 9. Prohibition to the High Commissioners High Commission Prohibition Joynt prohibitions and severall Counts Prohibition upon the statute of Symony upon the stat of 31. Eliz. Prohibition upon the Statute of 32 H. 8. for the dissolution of the Hospitall of Saint Johns of Jerusalem For not setting forth Tythes Husband sue only Prohibition to the Cort of Requests Against Forreiner for Ornaments for the Church and for Sextons wages Admiralty Contract for retaining of Tithes Admiralty Prohibition At the Archess discussed in right of Office Prohibition Admiralty for staying ships for Ballast High Commissioners and their power in Ministring Oâ—th and taking obligation High Commission Clandestine marriage Admiralty Coâ—rt if a thing done beyond Sea shall be there tried Agreement by word â—…p back tithes Where a Prohibition shall be granted without Action hanging High Commissioners Alimony Adultery Houghton Shirley Barker Court of Admiralty's Jurisdiction Admiralty Prohibition Modus decimandi Prohibition to a Court Baron Replevin 2. Executors one refuses Waste 2. Executors one refuses Bargaine and sale upon Condâ—… Ravishment of Ward Mich. 〈◊〉 Jacobi Rot. 213. Common of Pasture Trespasse Ejectione firmae Common Recovery Judgement in Debt Accompt See the beginning fol. Debt by Executor Administrators during the minority of the Executor Action upon the Case for words Replevin Attornement of Tenant being under age of 21. yeares Shirley Harris Harris Montague Hutton Surrender after Statute acknowledged Executors sued and also the Heire Court of Equity Debt upon a Bill Harris Shirley Fealty gives Seisin of all annuall Services Atturney brings Action of Debt for Fees Survivor doth not hold amongst Merchants to have all Award void Action upon the Case for words Devise that Executors shall sell Land A Towne incorporated with the consent of the greater part Action on the Case for slander Action upon the Case for suing one in a Court which hath no Jurisdiction Prescription for Common for Beasts without number Priviledge out of higher Court Fine amended Feoffinent to a Son and Heir for a valuable consideration Avowry Teste of a Venire facias amended after verdict Ejectione firme Ejectione firme Dodridge Houghton Replevin Grant without date Obligation Accompt Information Dodridge Hanghton Montague Dodridge Dower Debt against Administrator Commission to the Councell in Wales Caveat to a Bishop If administraon to the next of blood cannot be repealed Action for words Trespasse for breaking a House and taking a Cow Haughton Barker Barr not good Copy-hold intailed Extent upon a Statute Summons in Dower Patent of a Judge of the Common bench Action upon the case for slander Haughton Barker Periured Actionable Trespasse for imprisonment Dodridge Hutton Coram non judice Judgement void Shirley Wynch Foster Arbitrement Lease by the Dean and Chapter of Norwich Hutton Haughton Office granted by a Bishop Assumpsit Wilt of Right Haughton Nicholls Dower of titâ—e of Wooll Attachment Executrix during nonage Nicholls Harris Copy-holder Harris Dodridge Coke Replevin Waste Informer Lybell Debt against Administrator Copy-hold Coke Revocation of Uses Dodridge Nicholls Dodridge Nichols Wynch Warburton Coke Common Recovery Obligation to perferme Covenants Arrest of Judgment Audita querela Wast Estrepement awarded Ejectione firme Refusall Lord of a Mannor inclose the Demesnes adjoyning to the Common Warrantia Charte Dodridge Nicholls Devise of a Lease Dodridge Harris Assent to a Legatee Remainder of a Chattell Sherley Debt by Obligation Request is necessary for his Rent though that he have a bond for performing Covenants Nichols Debt Wynch Warburton Debt against Executors Davis What acts doe make an Executor De son tort what not Barker Warburton Wynch Trespasse Harriot Nicholls Harris Coke 253 Eliz. Dyer 193. a. Wrensfords case accordingly Warberton Wynch Release Cinque Ports Tenant for life with warranty Nicholls Haughton Wynch Warburton Ayd granted Coke Wynch Verdict uncertaine Falkland What is so called Warburton Coke Quod non occupantur conceditur Debt against Administrator for Rent in the Debet and Detinet Chibborne Detinet onely 2. Heire charged in Debet and Detinet 3. Towse Crook and Harris Joynt Covenant shall survive Copy-holder shall hold charge Error Elegit Testatum where no Writ had issued Confirmation to a Copy-holder destroys Common Expresse Covenant qualifies Covenant in Law Prohibition Defendant re-enters after Possession delivered by Habere facias possessionem Custome among Copy-holders Nonsuit after Verdict Reservation of Rent Michaelmasse or ten dayes after Grant of Common extinct Exposition of Usage Ejectione firme Errour Abatement of a Writ by entry Markhams Grant Earle of Rutlands Patent Challenge Earl of Rutlands Patent Challenge Abatement Errour Variance Seisin Abridgment of the Plaint in Assise Yelverton Fenner Challenge prin Flemming What matter shall be assigned for Error after Judgement Variante Challenge Seisin Misnaming of a Corporation Walter Yelverton Fenner Flemming Prohibition Prohibition A married Wife cannot make a Letter of Attorney Replevin Warburton Justice Walmesley Re-entry after possession executed Slander of Attorney Grand Cape Petit Cape Waging Law Release Inn-Keeper in London Action of false Imprisonment Serieant Harris the younger Walter Walmesley Coke Priviledge Assise View Coke Walmesley Challenge Errour in a Fine Barwick Returne of Writs Idemptitas nominis Fine Infant Tayle Maintenance Habeas Corpus Prohibition Trespasse for Slander Party Jury of two Counties Action upon the Case for Slander Errour Covenant for Rent Continuance Assumpsit Consideration Debt against Executors Errour Ve. fa. hab Carpus Formedon in Remainder Challenge Partition Dures Action upon the case for slander Prohibition Will. Devise Priviledge Postea 218. Adjournment of Tearm Infant levies Fine brings Errour Action upon the Case Action upon the Case Debt for Obligation Hutton Dodridge Court Sheriff committed to the Fleet. Grant of a Rent Priviledge of London Harris Hutton Where the Owner of Wood may Inclose Hutton Arbitrement Submissior Revocation Devise and grant â—enures to bargaine and Sale Harris Lease to determine upon Limitation Grant of the King that the Burrough should be incorporated Bayle Suit begun hanging another Writ Casuall intire Services Harris Nicholls Foster Dauiell Warburton Walmesley Coke Trade with Infidels without License Prohibition to the Court of Requests Approvement of Common Walmesley Foster Action upon the Case for Slander Bankrupt actionable Grant of Reversion Error in Proclamation Forfeiture of Office of a Chiroghapher Release Error in a Writ of Dower Copy-hold Certificate of the Bishop Minister Arrested Grant of the King of Alnage Haughton Dodridges Statutes how to be understood c. Account Devise of a Teerme Award Submission Arbitrement Where the death of the Defendant in Execution shall be satisfactory Dodridge Certiorari Outlawry Hutton Foster Debt upon escape against whom Warburton Land extended at too high rate Walmsley Coke Harris Haughton Foster Justice Warburton Walmsley Coke Charta de Foresta Assise Office Trespasse Estovers Boote its signification c. Nicholls Walmesley Coke Fee when forfeited Trespass Grant le Roy.
brought against Administrators The breach was for not repairing Houses by the Administrators according to a Covenant made by the Intestate The Administrators plead divers Judgements given against them in Bar of the Covenant and that they have not Assetts over HAre versus Savill Trin. 7. Jac. rotulo Action of Covenant brought upon an Indenture upon a special Covenant to pay Rent at certain Dayes therein specified and reserved The Defendant pleads that no Rent was behinde The Plaintiff demurrs to that Plea and it was held by the whole Court to be a bad Plea in Covenant for by that Plea the Defendant confesses the Covenant broken and that Plea tends but in mitigation of Damages MOrdant versus Wats Pasch 17. Jac. vel 7. Jac. rotulo 1532. Action of Covenant brought for a Rent-charge granted for the life of an Estranger and for half a Year after to be paid at the Feasts of the Annunciation of the Virgin Mary and Saint Michael the Archangel and alledge that the Estranger died in February and that the Rent was not paid at the Feast of the Annunciation and so the Covenant broken the Defendant demurres pretending that the Rent was not due untill half a year after the Death of the Estranger and not at the Feast but the Court held the contrary And if the Grantee had died his Heirs should have had it during the Life of the Estranger because it was payable to him his Heirs and Executors If I grant an Annuity for Life and twenty years after these are two severall Grants and the Executor shall have it after the Death of Tenant for Life And Sir Edward Cook said When an express Covenant is made to pay the Rent at divers Dayes an Action of Covenant will lie before all the Dayes of Payment be past but an Action of Debt will not lie untill all the Dayes be past and that in such case Debt doth properly lie upon a Grant of an Annuity for life or years H. 7. Eliz. rotulo 908. LAm versus Tresham Hill 7 Jac. rotulo 2145. The Indentures of Covenant were made between T. Tresham E. Lord Stourton Meriel T. and the Defendant and the Lord Stourton and Meriel never sealed the Indenture and mention thereof was made in the Count Videlicet which Lord Stourton and Meriel were parties to the said Indenture but never sealed The Case was Sir T. T. conveyed one Lease to the Lord Stourton and he to the said Meriel and by the Indenture brought into the Court it was covenanted that the said T. T. M. and L. or one of them at the time of the ensealing and Delivery of the said Indenture was lawfully possessed of and in the Mannour of c. And covenant that the Defendant his Executors and Assignes might and should quietly have and injoy the said Mannour clearly and absolutely freed and discharged or otherwise upon request saved harmless from all Incumberances and former Bargains by the said T. S. E. M. and the Defendant or any of them and the breach was that the Plaintiff was damnified for that the said M. that had the State did not seal and adjudged good PYot versus Lord Saint-John Mich. 7. Jac. rotulo 3214. The Plaintiff had the Reversion of two Houses one in Fee and the other for years and makes a Lease for years with Covenant for Reparations of both Houses and Question was whether the Plaintiff should have one Action or several Actions and adjudged that he should have a joynt Action for both FIsher versus Ameers Hill 8. Jac. rotulo 1061. Action of Covenant brought against the first Lessee after he had assigned over his terme for not repairing and the Question was if an Action of Covenant would lie against the first Lessee upon a Covenant to repair the Houses c. who had assigned his terme to another whom the Lessor had accepted for his Tenant and received the Rent and he suffered the House to be consumed by fire and if the Covenant by such Acceptance were gone as Debt for the Lessor is barred of his Action of Debt for Rent against his first Lessee after he hath assigned and the Lessor accepted the Rent of the Assignee If I covenant that I my Executors Administrators and Assignes shall pay the Rent if I assigne over my terme and the Assignee pay the Rent to the Lessor yet the Covenant lieth against the first Lessee otherwise it is where Rent is reserved and no Covenant to pay it there if the Lessor accept the Rent of the Assignee the Action will not lie against the Executor of the Lessee and Judgement after a Demurrer for the Plaintiff that the Action would well lie WAlter versus Decanum Capitulum Norwici Trin. 9. Jac. rotulo 1414. Action of Covenant brought upon an express Covenant in a voidable Lease and the Question was whether the Covenant be good the Lease being void and it was adjudged Trin. 10. Jac. that the Action would lie although the Lease were void and Mapes case was cited which was Mapes made a Lease of a Parsonage of D. for seven years and did covenant to save the Lessee harmless against B. the person c. in that case it was held if the person sue the Covenant by right or wrong an Action lies upon the Covenant and Sir E. Cook said that if the Lease were originally void yet the Action of Covenant would lie for else a great mischief might happen for a Dean might as to day make a Lease to one and keep it secret and to morrow make another and covenant to injoy it and so avoid the second Lessee If a Lease be good at the beginning and become void after their terminus is the number of years otherwise where it was void at the first if a Dean and Chapter make a Lease contrary to the Statute and reserve a Rent it shall not be void against them so long as the Dean liveth but against his Successor The Lease in question was not void but voidable A Covenant in Law shall go to lawfull eviction although the Lease be void A Covenant real to Warrant and Defend there must be a Title paramount and a lawfull eviction Covenants for Lessees shall be taken beneficially for the Lessees BRight versus Cowper Trin. 9. Jac. rotulo 638. Action of Covenant brought upon a Covenant made by the Merchant with a Master of a Ship Videlicet that if he would bring his Fraight to such a Port then he would pay him such a summ and shews that part of the Goods were taken away by Pirats and that the residue of the Goods were brought to the place appointed and there unladed and that the Merchant hath not paid and so the Covenant broken and the Question was whether the Merchant should pay the Money agreed for since all the Merchandises were not brought to the place appointed and the Court was of opinion that he ought not to pay the Money because the
agreement was not by him performed CRockhay versus Woodward Hill 15. Jac. rotulo 2001. An Action of Covenant brought upon this Writing Videlicet Memorandum that I John Woodward do promise and assume unto B. C. to pay to him such Moneys or other Goods as Josias my son shall imbessell mispend or wrongfully detain of his during the time of his being Apprentice with him within three Moneths next after request to me in that behalf made and due proof made of such imbesselling or wrongfull detaining in witness c. and the Plaintiff shews that the Defendants son did imbessell Goods of his Masters and shewed what Goods and left out in his Declaration these words Videlicet and due proof likewise made of such imbesselling or wrongfull detaining The Defendant demands Oyer of the Writing and pleads that he did not imbessell and it was tried for the Plaintiff and after Triall Exception taken because the Plaintiff did not alleadge any proof made and for that reason Judgement was arrested BRagg Assignee of Bragg versus Wiseman Executor of Fitch Mich. 12. Jac. rotulo 538. Action of Covenant brought and the case was this that Fitch and his Lady were seised of Land in right of his Wife for terme of her life and joyn together in a Lease by Deed indented in which were these words demise and grant and afterwards Fitch dieth the Lady enters and avoids the Lease and maketh a new Lease to a stranger whereupon an Electione firme is brought against the first Lessee and Judgement thereupon and the first Lessee put out of Possession whereupon the first Lessee brings his Action of Covenant against the Executors of Fitch upon the words demise and grant The Defendant demurrs The words were have demised granted and to farm letten for years if the Wife should so long live and Judgement for the Difendant A Covenant in Law shall not be extended to make one do more then he can which was to warrant it as long as he lived and no longer The Law doth not binde a man to an inconvenience If Tenant for Life make a Lease for twenty years and covenant that the Defendant shall injoy it during the terme that shall be during his Life for the terme endeth by his Death but otherwise it is if the Covenant be during the terme of twenty years by the word Demise an Action of Covenant lieth although he never enter and this word Demise implieth as much as Dedi concessi An Action of Covenant brought for that the Defendant covenants to bring again a Ship Perils and Damages of Sea onely excepted and he to excuse himself saith that the Hollander in a warlike manner by force and armes took the Ship and much doubt was where the Issue should be tried and the opinion of the Court was that the Action should be tried where it was laid COwling versus Drury Action of Covenant brought for that the Defendant did not pay a Rent with which the Land was charged the Defendant replies he was to injoy the Land sufficiently saved harmless and answers not the Breach and adjudged a naughty Bar by the whole Court SElby versus Chute Trin. 11. Jac. rotulo 3804. Action of Covenant brought and the Breach was alleadged that the Plaintiff should quietly injoy the Land demised to him and he shews that Chute exhibited a Bill in Chancery against him pretending the Lease was made in trust and it was decreed to be otherwise and whether the exhibiting this Bill was a Breach of Covenant there being no Disturbance at Common Law was the Question and the Court were of opinion that it was no Breach of Covenant for it was no Disturbance at Common Law nor Entry and the Law could not take notice of it and Judgement for the Defendant HOlder versus Tailor Pasch 11. Jac. rotulo 1358. An Action of Covenant brought upon this Covenant that the Lessee should repair the House provided alwayes and it was agreed that the Lessee should have such necessary Timber to be allowed and delivered by the Lessor and the Breach was that the House wanted Reparations and that so many Loads of Timber were necessary and that the Lessor allowed them according to the form and effect of the Indenture and a general Request laid and Exception was taken to the Declaration for that the Plaintiff did not alleadge a special request to the Defendant and that it was laid in the Declaration that a stranger brought the Timber which was held to be naught by the whole Court for it amounted to an Entry upon the Lessees Possession Exception taken to a Breach laid in Covenant for Repairs because it was generally alleadged and not shewed in what but being after a Verdict it was helped by the opinion of the whole Court TIsdale versus Essex Trin. 12. Jac. rotulo 2131. Action of Covenant brought upon these words covenant promise and agree that the Lessee should quietly occupy and injoy the Lands demised for and during the terme of seven years and the Plaintiff shews that an Estranger entred upon the Land and shews not that he entred by Title and the Court was of opinion that it was naught because it did not appear that he had a good Title to enter Dedit concessit imply a Warranty for Life and Judgement was given for the Defendant because the Breach was naught HIcks versus Action of Covenant brought and the Land alleadged to be in Weston alias Weston Vnderwood and the Venn was de visu de VVeston Vnderwood and it was alleadged by the Defendant that the Venn was mis-awarded because it was not of VVeston onely but the Court was of a contrary opinion that it was well awarded and Judgement for the Plaintiff CAstilion al. versus Smith Exec. Smith Trin. 17. Jac. rotulo 1849. Action of Covenant brought against the Defendant and the breach of Covenant alleadged to be in the time of the Executor and the Judgement was entred of the Goods of the Testators the Breach was for plowing of Land contrary to Covenant RIdent versus Took Hill 13. Jac. rotulo 3516. Action of Covenant brought to discharge the Plaintiff of a single Bill in which he was bound for the Debt of the Defendant and he alleadges for Breach non-payment and a Suit and recovery at Law for the Money which remained in force The Defendant pleaded that he paid the Money at the Day and thereof gave the Plaintiff notice before the purchasing his Writ the Plaintiff demurs and the Court held the Plea naught and Judgement for the Plaintiff Actions upon Account WIlloughby against Small An Action of Account brought against the Defendant as Receiver of the Plaintiffs Money The Defendant pleads that he never was Receiver where he hath a Release from the Plaintiff whereby he shall lose the benefit of his Release for that he cannot give that in Evidence upon such Issue The Process herein is Summons Pone Distress and upon a Nichil returned
upon the Summons pone or Distress the Outlary lies the Process is returnable from fifteen Dayes to 15 Dayes an Essoin lies In this Action there are two Judgements the first Judgement is that the Defendant shall account because he hath not accounted before in this first Judgement the Plaintiff shall not recover Costs or Damages but a Capias ad computand shall issue and if a Non est inventus shall be returned thereupon then an Exigent and when the Defendant by the rigor of the Law is imprisoned yet the Court doth in favour of the Defendant take Bail for he shall account before Auditors which the Court shall appoint which shall be the Officers of the Court to audit the Account and he shall appear from day to day before the Auditors at every day and place assigned by the Auditors untill the Account shall be determined and before the Auditors the Plaintiff or Defendant may joyn Issue or demurr upon the Plea pleaded before the Auditors and if any of the parties shall make Default and shall not appear then if after Appearance the Defendant shall not plead or if he shall joyn Issue or joyn in a Demurrer the Auditors shall certifie that to the Court and the Court shall proceed to the matter certified by triall of the Issue if it be joyned or by arguing the Demurrer as the cause shall require and if the Plaintiff shall make Default or shall not prosecute or if the Defendant shall not answer they may commit him to the Fleet and if Verdict pass for the Plaintiff Costs and Damages shall be recovered by reason of the inter-pleadings and the Plaintiff shall recover his Goods or Moneys demanded with his Costs and Damages and a Fisa or Elegit or casa shall be awarded and if a Non est inventus be returned then an Outlary after Judgement An account against a Bailiff of Lands shall be brought in the County where the Lands lie In every case in account where an Attachment may be returned an Essoyn lies Where the Defendant is charged to account for Moneys received from the hands of the Plaintiff the Defendant may wage his Law and likewise for Goods delivered to be sold but it is otherwise where the Receit is by the hands of a Testator or of any other then the Plaintiff That after a year and a day after Judgement given every Action shall be revived by Scire facias which is given by the Statute for all Actions at Law if the Plaintiff shall not obtain his Execution within a year and a day he shall be driven to bring a new Action Or if a Defendant be charged as Receiver by Indenture he shall not be admitted to plead that he was not a Receiver If the Plaintiff die before the second Judgement the Writ shall abate and no Scire facias lies for the Executor if the Defendant die before the second Judgement If two be adjudged to account and a Ca. exfa. issue and one appear and the other be outlawed he that appears shall account alone for that the Plaintiffs Process is determined against the other and so if one die the other shall account alone and if one be adjudged to account and will not he shall be committed to the Fleet. That if I deliver Goods to one to the value of 100. l. to traffique with for my use and he sels them for 10. l. I have no remedy but if my Bailiff buy a thing for 10. l. which is not worth it he shall not be allowed it Account lies not before a Sheriff for that he can assigne no Auditors If two be joyntly possest of Goods one of the two deliver the Goods for Merchandise he onely shall bring the Action An Account lies not against an Executor or Infant An Account lies not for a Park of Deer Matter that is in discharge of an Account shall not be pleaded in Barr of the Action for the Judges are Judges of the Action and not of the Account If Money be delivered to render an Account an Account lies but if it was delivered to keep untill the Plaintiff shall require Account doth not lie but Detinue If the Plaintiff account upon Witness of the Receit the Defendant shall not wage his Law If an Account shall be brought for Goods in the Declaration the Plaintiff declares that they were in his house whereas indeed they were not it is good HArrington versus Dean Hill 10. Jac. rotulo 3230. Action of Account render brought against the Defendant for the Receit of Money by the hands of one Rotheram for 200. l. The Defendant pleads that he was not a Receiver for to render an Account the Jury finde it specially that Rotheram was indebted to the Plaintiff in 200. l. and the Plaintiff required the Defendant to receive the said 200. l. and the Defendant required Rotheram to pay the 200. l. and Rotheram upon Request to him made desires the Defendant to borrow of any person 200. l. and to pay the Plaintiff and finde that the Defendant did borrow 200. l. of one Stanhop to pay the Plaintiff and Rotheram became bound to Stanhop for the payment of the said 200. l. and that the Defendant appointed his Wife to pay the Money to the Plaintiff and if upon the whole matter c. and Judgement was given that the Defendant was a Receiver THe Earle of Cumberland against Hilton The Clerk that entred the Cause had omitted the Charge which was for 400. l. and it was omitted in the Roll and Nisi prius and after a Verdict Excepon taken and amended by the Court. Assise IN an Assise Trin. 29. Jacobi rotulo 27. brought against Thacker and Elmer the Defendants come and say that there was no Tenants of the Tenements put to the view of the Recognisors of the Assise aforesaid nor at the time of purchasing the Writ to wit such a Day nor any time after and this they were ready to verifie and pray Judgement and if so then they say that they have done no injury or Disseisin of the Tenements with the appurtenances to the said W. T. and put themselves upon the Assise and the said W. T. doth so likewise therefore the Assise was taken between them and thereupon the Recognisors of the Assise say that the said E. E. at the purchasing of the original Writ of the Assise Videlicet such a Day were Tenants of the Tenement aforefaid with the appurtenances as of his Free-hold and that the said W. T. was seised of the Tenements aforesaid with the appurtenances in his Demesne as of Fee untill the said E. did unjustly and without judgement disseise the said VV. but not by force and armes and assess Damages to 12. d. and for Costs 6. d. and Judgement given that the said VV. should recover his Seisin of the Tenements aforesaid against the said E. by the view of the Recognisors of the Assise and his
Damages c. An Assise brought and the Grant was of the Herbage and Pannage c. and whether this were good or no some held it void for the incertainty of the Grant when it should begin Sir Edward Cook held the Grant good for if the King make a Lease for Life and granteth the Land without reciting the state to one for life this is a good Grant for Life of the Reversion to begin immediately after the Death of the Tenant for Life Trin. 7. Jacobi rotulo 35. An Assise brought for the Office of a Harald at the Funeral of the Earle of Exceter and the great Question was where the view should be made and it was alledged that it should be made in the place where he exercised his Office but the Court doubted of that but they were examined of the view made in the Abbey of Westminster being the place where the Funeral was performed and the Court were of opinion that in Dower where Tithes are demanded no view lies for of things that are invisible no view lies but the Tenant in such case shall be denied it SIr William Saint Andrew brought an Assise de Darrein Presentment against the Arch-bishop of York the Countess of Shrewsbury and F. H. for the Church of O. in the County of Nott. The Archbio p and H. appeared and the Countess did not appear and though the Countess made Default yet the Assise was not taken against her by Default but a re-summons was awarded against the Countess and the same Day given to the Arch-bishop and H. and a Habeas Corpora against the Recognisors And note the Tenants that appeared pleaded in abatement that a Writ of Quare impedit for the said Church was hanging in such a Court between the same parties and the Assise was brought afterwards and with this agrees the Register and it was adjudged a good Plea The Writ was returned in this manner Pleg de prosequend John Doo Richard Roo The within named Arch-bishop and Countess are attached and either of them is attached per Pleg H. S. N. J. And the within named H. hath nothing in the Sheriffs Bailywick by which he may be attached nor hath a Baily within his Liberty nor is therein found and the residue of the Execution c. and Judgement given that the Writ should abate and the like was in the Earle of Bedfords case where two Quare impedits were brought one after another and the last Writ abated J. Lovelace versus Baronissam Despencer R. Harvey Clericum Trin. 12. Jac. rotulo 74. de Darrien Presentment for the Church of M. And the said H. being solemnly exacted came not and the Sheriff made a Return that he was summoned by J. O. and W. C. and therefore the Assise was to be taken against him by Default but the said Baromsh by T. her Attourney faith the Assise ought not to be so taken and confesses the said J. was the person last presented but conveys a Title to her self of the Mannour to which the presentation belongs and that being so seised the Plaintiff in the Assise by usurpation presents the Clerk in the Count whereupon the Defendant brought a Quare impedit and hanging the Writ the Clerk in the Count dies and the Plaintiff presented the Clerk that made Default who by vertue of that presentation is yet Parson of the said Church by which she is seised of the Advowson as in her former Estate and so she saith that the Presentation of the said J. by the said L. made ought not to prejudice her and a Demurrer upon this Plea and that the Assise should remain to be taken c. for want of Recognisors and the Sheriff was commanded to distrain them c. and Judgement given that the Plea was good but quaere of the Declaration whether sufficient because it was not alleadged that he that presented was seised of the Advowson Pasch 8. Jac. rotulo 31. An Assise brought for the Office of Clock-keeper of and it was held that it must be an ancient Office and because they could not prove that it was an ancient Office the Plaintiff was non-suit and the Plaintiff shewed a Grant of the same in E. 6. time but that was held no ancient time Pasch 6. Jacobi It was held by the whole Court that an Assise of Sadler to the Queen would not lie being granted to one by the King but was held void by the whole Court for the King cannot make an Officer to the Queen and by the Patent no place was expressed where he should injoy and exercise his Office and take the Profits and therefore the Jury could not have the view and for that cause an Assise cannot be taken and if the King should grant the Office of Usher to his Son the Prince an Assise would not lie An Assise brought against Demetrius the Plaintiff was non-suit and Demetrius moved to have Cost and it was denied by the whole Court because an Assise is not within the words of the Statute Audita Quaerela BIrd versus Kirton Trin. 13. Jacobi rotulo 3118. An Audita Quaerela brought and the case was this Bird and Milles were bound to Kirton and Kirton makes a Bond to Milles in the summ of 100. l. that if Milles be not sued upon the first Bond then that shall be void and it was alleadged that Kirton did both sue Milles and Bird and that he had no notice of the second Bond that he might have pleaded it and so pretends that the second Bond should be a Defeasance of the first and Judgement was given for the Defendant BEck brought an Audita Quaerela and surmises the matter following that Boon Administrator of C. brought his Action of Debt upon an Obligation and before Judgement that Administration was revoked and Administration granted to another and notwithstanding the Revocation he procured Judgement and the second Administrator released and the rest brought an Audita Quaerela upon that Release and the Court would not grant a Supersedeas because the Revocation was but matter in fait for that Revocation was not under Seal and the first Administrator might appeal Cases in Law and Notes IF a Writ of Covenant be brought against two and if one acknowledge the Fine before one of the Justices and the other acknowledge by Dedimus or before another Justice that Fine cannot be proceeded upon these two acknowledgements by the opinion of the Court. A Writ of Covenant was brought against three men and their Wives and onely two men and their Wives acknowledged the Fine and the other Husband and Wife never acknowledged and the Fine was sued as a Fine acknowledged by all and it was desired the Fine might be amended and the Man and Wife that did not acknowledge might be put out but the Court would not grant it If I make a Lease for years reserving Rent during the Life of A. and B. if one of them die
adjudged insufficient and a new Writ awarded but many held that in the case of a Cognisor it was well enough but not in the case of a Purchasor If one knowledge a Statute and after a Judgement is had against the Cognisor now against the Cognisor the Statute shall be preferred but not against an Executor If a man plead a Bond knowledged to the King in the Exchequer it must be averred to be a true Debt If a Debt be assigned to the King in this case no priority of Execution If one staul a Debt by 20. s. a year this shall not stay my Execution the Court were of opinion that an Extent would not be good at Barwick for the Writ runs not there If a Judgement be given in a Court of Record it shall be preferred in case of an Executor before a Statute But if a man acknowledge a Statute and afterwards confess a Judgement and if the Land be extended upon the Judgement the Cognisee shall have a Scire facias to avoid the Extent upon the Judgement otherwise in case of Goods for therein first come first served for if I have a Judgement against one and afterwards he acknowledgeth a Statute and by vertue of the Statute the Goods of him being dead were taken in the Executors hands then upon the Judgement a Scire facias was sued and afterwards a Fieri facias of the Testators Goods it was held that the Goods first extended were lawfully extended and shall be good A Judgement was had against Sir Fr. Freeman and an Extent came to the Sheriff and afterwards and before any thing was thereupon done one Fieri facias against the Executor upon a Judgement given before the acknowledging the Statute was delivered to the Sheriff and the Question was whether the Extent or Fieri facias shall be first executed And note if the Land be first extended upon the Statute and afterwards an Elegit upon a Judgement obtained before the acknowledging the Statute come also to the Sheriff the moity of the Land extended shall be delivered to the Plaintiff upon the Judgement HIll 15. Jac. The case of Villainage is within the Statute of Limitation and in the case of M. Corbet it was held that the Prescription of the Seisin of the Plaintiff and his Ancestors as Villain was more then needeth and the Issue thereupon taken was good by the whole Court after Exception taken thereupon and Judgement was given for the Plaintiff In every Elegit the Sheriff must return and set out the moity distinctly unless they be Tenants in common and in that case he must return the special matter An Extent issued out against one Greisley by the name of Greisley Esquire who was at the time of suing out the Writ made Knight and Baronet and it was naught and the Plaintiff prosecuted a new Writ MIch 10. Jacobi A Tenant by Statute Staple or Elegit that hath extended an Abbots Lease or a Lease made out of an Abbots Lease is not bound to shew it because he cometh in by Act of Law but any other that cometh in under the Lease must shew it by the opinion of the whole Court And note that in Hillary 10. Jac. two Inquisitions taken at several Dayes by several Juries upon one Statute Merchant were adjudged naught one was taken of the Land and the other for Land and Goods and Extent of the whole fourth part was naught for it should be of the moity of the fourth part and mark it was of a Lease which was but a Chattell and the Sheriff might have sold it as Goods but seeing he had extended it in this case he should receive benefit but as in a common Extent COmyrrs versus Brandling A Lessee that had a Lease of the value of 100. l. and after the Teste of the Elegit and before the Sheriff had executed the Elegit assignes his terme to one who assignes it over to the Plaintiff in the Scire facias and afterwards and before the last Assignement the Sheriff executes the Elegit and delivers the Lease to the Plaintiff tenend c. for satisfaction of the Debt which came to but 43. l. 6. s. 8. d. it was held by all the Judges that the Sheriff could not deliver the Lease at another value then what the Jury had found it at and the Sale made by the Sheriff is as strong as if it had been made in open Market and that all the Goods and Chattels are bound after the Teste of the Elegit and cannot be sold by the Owner after the Teste of the Writ If a later Extent be avoided by an ancient Extent after the ancient Extent is satisfied the later Extent shall have the Land according to his first Extent without any re-extent by the opinion of Serjeant Hutton if the Husband charge the Lease of the Wife and dieth the Wife shall hold the Land discharged HIll 12. Jac. The Earl of Lincoln against Wood the Earl of Lincoln did arrest Wood upon a Capias upon a Statute Merchant Wood being in Execution obtained in the Chancery an Audita Quaerela and did put in Bail there and had a Supersedeas and was discharged of his Imprisonment and the Audita Quaerela and Bail sent into the Common Pleas to be proceeded on The cause of the Audita Quaerela was grounded upon the performance of the Defeasons of a Statute and after this case was debated for the Bailment of Wood and held by the Court to be good it was allowed of If the Act for Dissolution of Monasteries had not given the Land to the King the Founders ought to have had them And if an Hospital or religious House is impeached upon the Statute of Superstitious uses it must be proved to be regular for they must be religious that are dissolved by E. 6. JOules versus Joules Alderman purchased Land of one against whom a Judgement was given long before the Purchase and the Vendor afterwards became unable to pay the Judgement and long after the Plaintiff in the Judgement purchased a Scire facias against the Defendant and had Judgement against the Defendant by Default and afterwards had an Elegit and by vertue of that the Sheriff extends the Land of Joules the Purchasor who prayes the aid of the Court because the whole Land was not extended but he was forced to bring his Audita Quaerela If I make a Lease for years reserving a Rent during my Life and my Wives Life if I die the Rent is gone because she is a stranger she shall never have the Rent because she hath no Interest in the Land if one of them die nothing can survive to the other and a Limitation must be taken strictly otherwise it is by way of Grant that shall be taken strongly against the Grantor If 2. Tenants in common joyn in a Lease for years to bring an Ejectment and count Quod cum dimisissent c.
that is naught for it is a several Lease of their Moities and you must declare Quod cum one of them demised one moity and the other the other moity and good If a Tenant in Socage hath Issue and die his Issue being under the age of 14. years the next Freind of the Heir to whom the Inheritance cannot descend shall have the Guard of the Land untill the Heir come to the age of 14. years and he is called Guardion in Socage and in pleading a Lease for Life you are never to alleadge the place where the Lease was made because it passeth by Livery which was executed upon the Land He that pleads a Demise ought to shew that the Lessee entred and he that pleads a Descent ought to shew that he entred and an Exchange is a good Plea in Bar but it shall never be adjudged a good Exchange except this word Escambium be used in the Charter of Exchange HOpkins versus Radford A Defendant shall take no benefit of his own wrong In Sir James Harringtons case the Original was returned Quinque Pasch and the issue joyned that day and the Venire facias returned that day and held naught by the Court upon the first motion A future Lease cannot be surrendred but drowned For things in Action a Deed of Gift is void as Debts without Specialty although he say Goods Chattels and Specialties but for other Debts by Specialty and Goods it is good and for the Debts in Action after the Death of the Party Administration is to be granted and the Administrator is to have the Goods RAiner versus Mortimer One had Judgement upon a Scire facias to have Execution and a Capias ad satisfaciendum returnable 15. Martini and that Writ was returned Album Breve and a Testatum thereupon and the Defendant taken and this matter was moved to the Court and a Supersedeas prayed that the Testatum issued out erroneously because the Capias was not returned and it was granted by the whole Court because the Capias was not returned One seised in Fee may bargain and sell grant and demise Land to others and their Heirs to the use of one for years because he hath a Fee-simple but Lessee for years cannot bargain and sell his Lease to the use of one for years If a Marriage is intended between two men and one of them in consideration that the other hath upon the Marriage assured Land to his Son he doth assume to pay to my Son such a Summ immediately after the Marriage if the Money be not paid the Son must have the Action and not the Father MIch 5. Jacobi 61. One Jury-man appear in Court and when he came to the Barr to be sworn he informed the Court that he was eighty years old and prayed to be dischargâ—d and the Court could not grant it nor pass him by and swear others without committing Error except the Parties would consent for it is Error to skip a Juror who is returned if he appear and therefore the Juror was drawn by the consent of the Parties TRin. 6. Jacobi Upon a Levari facias out of a Court Baron Goods cannot be sold without a Custome to sell the Goods and if Goods be attached by Pone out of a Court Baron the Defendant shall not lose his Cattle otherwise it is if it be a Process out of the Common Pleas then the Defendant loseth his Cattle for not appearing if you lay that you have a Court time out of minde to be held before a Steward you must shew what Pleas you have used to have Conusance of A Sheriff returned but 21. onely upon a Venire facias and at the Triall ten onely appeared and a Decem tales was awarded and tried and Verdict for the Plaintiff and this matter was moved in Arrest of Judgement for that the Sheriff had returned but 21. and the Court were of opinion that if 12. of them had appeared that it had been good notwithstanding but because 10. onely appeared of the principal therefore it was naught and Judgement arrested for that cause If a Juror be sworn of the principal and the Jury remain when the Jury comes again he shall be sworn again TRin. 6. Jac. rotulo 251. Dunnall versus Giles A special Verdict and the Question was a man being possessed of a terme devises the whole terme to A. for Life and if he dies within the terme to B. during the minority of C. and that C. when he comes to full age shall have the Remainder of the terme and held a good Devise To devise Land or Terme or Lease all one it is an Executory Devise If one surrender Land to the use of an Estranger that is to resty the use in Reversion for the Land is in him immediately If a man hath a Rent in esse you cannot grant that in Reversion after your Death but if I surrender to the use of one after my Decease is not good by his opinion of Warburton and Daniel If the Sheriff shall by vertue of a Fieri facias levy the Debt and Damages of a man and make a Return that the said Goods remain in his hands for want of Buyers the Property remains still in the Defendant although the Sheriff hath Possession of the Goods A Sheriff may sell Goods levied upon a Fieri facias out of his County In Watermans case the Issue was whether a Copy-holder in one Town had Common in Land lying in another Town and the Plaintiff shews that he is Lord of the Hundred of C. within which Hundred one of the Villages lie and prayes a Venire facias of the Town next adjoyning to the said Hundred and it was granted and tried and Exception to the Triall for that the Venire was not of both Villages An Alien born being no free Denizen may defend and bring a Writ of Error and it is no Plea to say that he is an Alien born Note by the Common Law the Lord of the Mannour may come and take away a Tree cut down upon the Copy-hold Land by his Copy-holder without laying a special Custome for it If there be an unlawfull Marriage as the Brother doth marry his Sister and they have Issue and one of them dieth before any Divorce had between them now after the Death of one of them the Issue cannot be bastarded as in Cordies case 39 E. 43. 22 E. 4. After a general Imparlance one cannot plead an Outlary in Barr to an Action of Trespass or Case but it must be pleaded in abatement except he be outlawed after the last Continuance for you shall plead nothing in Barr but what goeth to the pit of the Action now the Damages in Trespass or Case are not forfeited by Outlary as Debt because of the incertainty To the Owner of the Soil on both sides of the way of common right belong the Trees that grow in the Lane whether
certain Day specified in the Condition The Defendant pleads that the Plaintiff at the Day of Payment accepts of another Bond for the Payment of the said Money in satisfaction of the said 52. l. 11. s. and upon a Demurrer held to be a naughty Plea for one Bond cannot overthrow another LEa versus Pain Hill 14. Jacobi rotulo 953. An Action of Debt brought upon an Obligation with a Condition to perform an Award the Defendant pleads that the Arbitrators made no Award The Plaintiff by way of Replication sets forth an Award that the Arbitrators did arbitrate of all matters untill the Date of the Award which was a Moneth longer then the Submission and so pretends they exceeded their Authority The words were for all causes before the Date of the Award Another Exception was because the Arbitrators awarded that the Defendant should pay the Plaintiff such a Day of April and doth not say what year or next following and the Court held that good enough because the second Day of Payment was made to be such a Day and such a year and it was held good enough for if any new matters did arise between the Submission and Award or c. the Defendant ought to shew it Another Exception was that it was not said that the Award was made between the Parties but it shall be intended to be made between the Parties because the Award was made de super praemissis and therefore it shall be implied that it was made but of such things as they had power to deal in The Court was of opinion that the Award being de super praemissis the Court shall not say but that this was a cause submitted and except it had been discovered by pleading that there was a new cause since the Date of the Award which was made known to the Wardsmen the Court is not to take notice thereof SCot Executor versus Herbert The Plaintiff in his Declaration sayes the Testator in his life-time was possessed of Land for a terme of years and so possessed grants part of his terme to an Estranger reserving Rent and he grants his Estate to the Defendant And that the Testator died possessed of the Reversion of the terme and because the Rent was behinde the Executor brings his Action of Debt for the Rent and the Declaration was held naught for that it did not appear that he that made the first Demise was seised in Fee or in any other Estate by which he could make a Lease NOrris and Trussell Wardens of the Society of Weavers in the Town of Newbury in the County of Berks versus J. Scapes Pasch 14. Jac. rotulo 907. An Action of Debt brought and the Plaintiffs declare that Queen Elizabeth had incorporated them by such a name and given them Power to make by-laws for the better governing their Corporation c. and further shew that they made an Order which was confirmed by the Justices of Assise according to the Statute of 19 H. 7. and for the Breach of such Order brought their Action the Defendant pleaded that he owed them nothing and tried and a Verdict for the Plaintiffs and Hutton Serjeant moved in Arrest of Judgement and took three Exceptions the first because the Constitution was against Law to restrain one to exercise a lawfull Trade The second the Constitution was that the Offender should forfeit such a summ and it did not appear to whom this Forfeiture should go Thirdly the Plaintiff shews in his Count that the Queen by her Letters Patents had appointed A. B. C. to be Wardens for one year and shews not which those that brought the Action were elected which ought to be to intitle them to that Action It was against sense to barr all their own Apprentices it doth not appear how many Wardens should be and they do not intitle them to the Action by the Corporation the Law is altered and Judgement was given for the Defendant BRet versus Averder Mich. 29. 30. Eliz. Debt brought upon an Obligation to perform an Arbitrement the Defendant confesses the Arbitrement but pleads in Barr that the Plaintiff did not require him to make Payment and to that Plea the Plaintiff demurrs and it was adjudged no Plea for the Defendant at his perill ought to make Payment and the Plaiutiff ought not to make a Request HAles versus Bell Trin. 39. Eliz. rotulo 1974. The Plaintiff brought an Action of Dèbt upon an Obligation with a Condition for the Payment of 40. l. within fourteen Dayes next after the return of one Russell into England from the City of Venice and then the Obligation should be void the Defendant pleads in Barr that the said Russell was not at Venice upon which Plea the Plaintiff demurrs and adjudged a naughty Plea for where part is to be done within the Realm and part out of the Realm the Plea ought to be triable within the Realm GArret versus Harrison Executor Trin. 40. Eliz. rotulo 1651. To an Action of Debt upon a Bond brought against him as Executor the Defendant pleads six Judgements in Barr the Plaintiff replies that they were by fraud and covin and the Jury found for the Plaintiff that two of the six were by covin and Williams moved in Arrest of Judgement because the Jury ought to have found all but Glanvile said that if any part of the Plea be insufficient defective or false the Issue shall be found against you for your Plea is one intire thing and he said that the Plaintiff should have taken Issue upon one onely as in an Obligation with diverse things in the Condition Walmsley held that by the Plea the Defendant had confessed implicatively that you have sufficient to satisfie those six Judgements and no more So that if any part be found against you this is Assets and Judgement was given accordingly for the Plaintiff GReen versus Wilcox Executor To an Action upon an Obligation brought against the Defendant as Executor he pleads that the Testator was obliged to A. in 20. l. which remained due to him at his Death and that the said A. recorded against him in the Common Pleas and averres that it was a true Debt and the persons and matters to be the same and that he had no Assetts beyond that and the Plaintiff replies that the said Recovery was had by fraud and covin between them to defraud him of his Debt to which Plea the Defendant demurrs specially because he had in his Plea averred it was a true and just Debt so that it could not be by covin Trin. 44. Eliz. It was adjudged for Law by the whole Court that if a Fieri facias be directed and delivered to the Sheriff he may not break the outer Door of the House and enter and do Execution but if the outer Door be open then he may enter by that and then he may and ought to break the Door of an Entry or Chamber which is locked and break
that he had Assets at the Day of the Writ purchased and it had been found for the Plaintiff now the Plea is made good If an Action of Debt be brought against two Executors and one of them onely appear and confess the Action the Judgement shall be against both of them of the Goods of the Testators in the hands of all the Executors and the Damages of him that appeared onely TRin. 16. Jac. rotulo 988. Houldsworth versus Barker An Action of Debt brought upon a Bill the Defendant pleads the Bill was delivered to the Plaintiff upon a Condition not performed and it was held a naughty Plea by the whole Court HIll 13. Jacobi rotulo 842. Harrison al. at the Suit of Fleet. An Action of Debt brought for 32. l. and the Plaintiff counts upon an Emisset Harrison pleads that he and the other do not detain from the Plaintiff the said 32. l. nor any Penny thereof and the other pleads to Issue and a special Entry made that the Issue should remain untill the said Harrison had perfected his Law or made Default and he at the Day did wage his Law and Judgement was that the Plaintiff should take nothing by his Writ PAsch 16. Jac. rotulo 1200. Rayson versus Winder An Action of Debt brought upon an Obligation with a Condition to perform an Award which was good in part and void in part and the Breach assigned upon the good part and the Award was to pay Money but no time of Payment afterwards it was demanded the Award is good GAsington versus Burcher Knight Turner Jones and Bowden for 1800. l. Burcher was outlawed Turner and Jones appeared by Supersedeas and Bawden appeared by another Attorney and the Plaintiff declared against them three that appeared upon an Account Turner offered to wage his Law and the others plead Nil debent per patriam and the Court was moved pretending that Turner shal not be admitted to wage his Law because the Defendants should not sever in Plea but the Court upon sight of divers Presidents were of another opinion although it was urged that Turner Jones joyned in a Supersedeas and therefore pretend that Turner should not sever in Plea from Jones that pleaded Nil debet per patriam but that Exception was disallowed for although two appear by Supersedeas yet they may vary in Plea MIch 16. Jac. rotulo 581. and the Imparlance entred 16. Jac. rotulo 1727. An Action of Debt brought by Lee versus Arrowsmith upon an Emisset for divers Parcels and upon an Account and the Parcels and Account amounted to the summ of 300. l. but in the Imparlance Roll the Parcels and summ accounted for did not amount to 300. l. by 6. l. And this variance was moved in Arrest of Judgement after a Verdict but the Court were of opinion that it was amendable because Ball the Attorney made Oath that he commanded his Clerk to summ the Account for 6. l. to maintain his Writ and therefore the Roll was amended HIll 36. Eliz. rotulo 1908. Action of Debt brought by Gage versus Gilbert upon an Obligation for 500. l. bearing Date first of February Anno 25. Eliz. The Defendant pleads a general Release made to him by the Plaintiff bearing Date after the making of the Bond of all Dues and Demands whatsoever except an Award made between the Plaintiff and one G. W. why R. R. then dead and one Obligation of 500. l. for performance of the said Award bearing Date 29. April 25. Eliz. and whether these words bearing Date 29. April shall have reference to the Arbitrement or Bond was the Question upon a Demurrer upon the Replication in which the Plaintiff shewed the special matter that the Award was made the 29. April and that the Bond was made the said first of February and it was adjudged that these words bearing Date should have reference to the Award and not to the Bond. And if the Heir pleads Ciens per discent besides one Acre if the Plaintiff please he may have Execution of that Acre or if the Plaintiff plead that he hath Assets beyond that Acre and it be found that he hath ten Acres more the Plaintiff shall have Execution of the Land onely and not of his person as it is where the Heir pleads that he hath nothing by Discent generally and it is found against him that Land and all other his Land which he hath and his Body are liable to the Judgement by a Capias ad satisfaciend Fieri facias or Elegit If a man be retained in London to serve beyond Sea he may have his Action for his Wages in England in any County And the like of an Obligation bearing Date at Roan in France it may be sued in England alleadging the place to be in such a County where he brings his Action And note that Debt may be brought in the Common Pleas without Original against any Officer or Minister of the said Court by Bill exhibited to the Court but no Process of Outlary lies upon that and the Judgement upon that is that the Plaintiff shall recover his Debt and Costs and shall have an Attachment ad satisfaciendum but no Exigont for because it is not by Original and all the Process by Bill shall be returnable at a Day certain but no Bill lies against a Serjeant at Law And note that the Judges Serjeants and Officers Clerks Attorneys and Ministers of the Court may have an Attachment of Priviledge out of the said Court without an Original to arrest any to them indebted or for any personal cause to proceed upon it as if it were by Original but no Process of Outlary lies thereupon and such Process of Attachment shall be returnable at a Day certain and not at the common Return and they may be returned from Day to Day If a man be bound to perform an Award of Arbitrators and they make an Award accordingly that one shall pay Money he may have his Action of Debt for the Money and declare upon the Award and afterward may have another Action upon the Obligation for not performing the Award by the opinion of the whole Court Mich. 5. Caroli An Action of Debt brought by an Executor the Defendant pleads an Outlary in the person of the Executor and demands Judgement if he ought to answer his Writ the Plaintiff demurrs in Law to that Plea and Judgement was given that the Defendant should answer over WOlly versus B. and his Wife Trin. 37. Eliz. rotulo 1306. An Action of Debt brought by Husband and Wife as Executrix the Defendant pleads in Barr an Outlary in the Testator by an Estranger which is in its force and upon a Demurr and solemn Debate adjudged a naughty Barr. Trin. 40. Eliz. rotulo 507. The like Plea pleaded to an Executor that brought an Action of Debt and adjudged no Plea And Dixon Administrator of Collins exhibited a Bill against
year to year the Defendant wages his Law and at the Day to wage his Law the Court refused to accept it for that he ought not to wage his Law for Wages yet if the Retainer were not for a year at least the Court seemed to be of opinion that he might wage his Law VErnon versus Onslow Pasch 12. Jac. rotulo 1047. Upon an Action brought upon a Bill for 80. l. the Defendant demands Oyer of the Bill was Pro octogesimis libris and to that the Defendant demurrs and Judgement for the Plaintiff Hutton cited the Case in Cooks 10. Rep. Rowlands Case And another in Mich. 44. 45. Eliz. rotulo 131. Proseptingentis libris and the Bond was Proseptungentis libris And another Mich. 11. Jac. upon a Bill for seventeen pounds and adjudged a good Bill YOung versus Melton Trin. 10. Jacobi rotulo 3434. An Action brought upon a Bond for performance of Covenants the Defendant pleads Conditions performed The Assignes the Breach for non-payment of Rent and pleads in this manner that in December he demised to the Defendant one Wine-Cellar c. for one year and if the Defendant would hold the Wine-Cellar for three years paying 40. l. yearly during the said terme and alleadges non-payment of the Rent of on Quarter in the first Year and the Defendant demurrs and the Court were of opinion that the reservation had reference as well to the first year as to the two years following and in that case Cook said that if a man demise c. reserving Rent to himself the Heir shall not have the Rent but if the Rent be reserved generally the Heir shall have it WHickstead versus Bradshaw Pasch 14. Jac. rotulo 2175. There was Judgement entred against the said B. and after the Bail of Bradshaw brought a Habeas Corpus to the Marshalsey Bradshaw being a Prisoner there to have his Body before the Judges of the Common Pleas to be committed in Execution in Discharge of the Bail but before the Returne of the Habeas Corpus the said Bradshaw had brought a Writ of Error returnable the Day following and when he came to be committed the Court doubted that their hands were tied by a Writ of Error by reason he could not be committed upon the Judgement and yet they would have discharged the Bail if they knew which way therefore Quaere GErrard al. versus Dannet Hill 9. Jac. rotulo 2015. Judgement was had upon a Bond by Non sum inform and a Writ of Error brought for that the Christian name of the Defendant Attorney was left out in the Imparlance Roll but it was in the Roll whereupon the Judgement was entred and a Warrant of Attorney entred accordingly and the Court was moved that it might be put into the Imparlance Roll which was granted upon sight of the Judgement Roll and Warrant of Attorney entred If a man be bound by Award to pay one 20. s. And I at the Day offer it and he refuseth it or comes not to receive it I must plead that I was ready to pay and shall not plead an Vncore prist because it is upon a collateral matter An Obligation was made to pay 10. l. 8. s. and eight not saying Pence or any thing else An Action of Debt lieth for the 10. l. 8. s. WIlde versus Vinor Trin. 7. Jac. rotulo 1629 or 2629. Debt upon an Obligation to perform an Award The Defendant pleads that the Arbitrators made no Award the Plaintiff replies that the Defendant by Writing did revoke and null the Authority of the Arbitrators Foster held the Bond was forfeited although he might revoke the Plea was that he did discharge the Arbitrators against the form of the Condition My Lord Cook held that the Power was countermandable if the Submission be by Writing the Countermand must be by Writing if by word I may countermand by word If two binde themselves one cannot countermand alone If Obligor or Obligee disable by their own Act to make the Condition void the Bond is single 14 H. 7. If I am bound to infeoff A. and I marry her before the Day the Bond is forfeited 18 E. 4. 18. 20. the great doubt was because no express notice but notice was implied And the Bond forfeited because he did not stand to it Judgement for the Plaintiff PArker versus Rennaday Trin. 6. Jac. Action brought upon a Bond for 60. l. the Bond was in Italian in these words In cessanta libris and held a good Bond for 60. l. O. K. ux ejus Admin versus Needham who was bound to the Intestate in a Bond and pleads that Administration of the Intestates Goods was committed to him by the Archbishop the Intestate having Bona not Abilia before it was committed to the Plaintiffs Wife The Plaintiff replies that the Administration committed to the Defendant was revoked and made void to which the Defendant demurrs pretending his Administration to be a Release in Law but it was otherwise adjudged But if the Debtor were made Executor then the Debt is released like unto an Administrator during the minority he may do all for the good of the Infants but nothing to their prejudice if an Executor marry the Debtor it is no Release in Law Judgement for the Plaintiff by the whole Court LAwrance and Althams case if I have no means to gain my Right but by Action if I release my Action I release the thing it selfe because I release my means to come to my Right If I release all Actions I may have Jus prosequendi A Release made by the Testator shall be no Barr to the Executor to bring a Writ of Detinue because it continues a wrong still to the Executor A Bond to pay Money at Michaelmas may be released because it is a Debt otherwise it is of a Rent reserved by Lease the like it is of a single Bill to pay Money at four Dayes if the first Day be broken no Action untill all the Dayes be past but in case of a Lease after the first Day Debt doth lie in the first it is a Debt but not in the other Quarrels Controversies and Debates are all one that is all Causes of Quarrels Controversies and Debates are more large then Actions and Suits are more then q. c. d. and by Release of Suits Executions are gone Release of Duties Executions are gone neither Fraud nor Might can take a Title without Right Demand is most large and by it Rents are gone Executions gone Incidents gone as Releif Warranties gone all Causes of Demand gone Actions and a mans Right gone When a condition is to arbitrate of all matters between c. there if the matters be not made known to the Arbitrators they are not bound to arbitrate more then they know for if it appear to the Court that all matters committed to the arbitrators be not arbitrated the Award is void but if the submission be of all matters between c. so that now all must be
by Obligation and that he retained the Money in his hands to satisfie the Debt The Plaintiff replies that the Money was not due and payable to him at the time of the Intestates Death and that he took Administration after the Day of Payment and if the Administrator had pleased he might have took Administration before the Day of Payment and the Court held the Defendants Plea good but he shall not have the Forfeiture CArrell versus Paske Trin. 13. Jac. rotulo 1018. Debt brought upon an Obligation made at C. in the County of Surry The Defendant pleads the Priviledge of Cambridge granted to them by the Queen Eliz. for Scholars Bachelours Masters and their Servants upon Contract made within the University and shews the Bond was made in Cambridge and that he was a Servant of the Scholars to wit Bailiff of Kings Colledge in that University and inhabiting within the Town of Cambridge and Precincts of that University and therefore a priviledged Person of the same and upon reading the Record it seemed that the Defendant being a Bailiff of the Colledge is not capable of the said Priviledge PReist versus Cee Trin. 12. Jacobi rotulo 2197. An Action of Debt brought upon a Bill bearing Date 17 Novomber 1604. by which Bill the Defendant did acknowledge himself to owe the Plaintiff 10. l. to be paid to the Plaintiff at two Payments to wit 5. l. to be paid upon the 19. of November then next following and other 5. l. to be paid upon the 10. Day of December then next following The Defendant pleads it was not his Deed. The Jury finde it specially that the Defendant the 17. of November 1604. sealed and delivered to the Plaintiff one Bill obligatory shewed to the Jury bearing Date the Day and Year above and finde the Bill in haec verba Be it known c. to be paid at two Payments that is to say 5. l. to be paid the 19. of November which is the present of this Moneth and the other 5. l. on the 10. of December The Question was whether the Bill maintain the Count for the first Payment and adjudged it did RAwdon versus Turton Trin. 13. Jac. 1011. An Action of Debt brought upon a Bond for Payment of Money such a Day The Defendant pleads that he the same Day made an Obligation for the Payment of the said Money another Day which the Plaintiff accepted for the Money and Issue taken thereupon and tried for the Defendant and after the Verdict the Plaintiff moved the Court to have Judgement though the Verdict passed against him because the Plea was insufficient and that he confessed the Debt but the Court would not grant it The like Mich. 6. Jac. rotulo 1061. And the like Hill 12. Jac. CArter versus Freeman Mich. 13. Jac. An Action of Debt brought upon a Bond with a Condition that the Defendant should appear before the King at a certain Day Videlicet Die Jovis post Octobras Martini and upon a Nul tiel Record pleaded the Defendant brought his Record of Appearance Lunae post xvam Martini and this was held by the whole Court an Appearance at the Day in the Condition by the whole Court GRubham versus Thornborough Hill 12. Jac. rotulo 1773. An Action of Debt brought for Rent and for a Nomine penae the Rent due 14 November Anno 9. and no name alleadged for the Nomine penae therefore the Action would not lie for the Nomine penae but it would for Rent PAsch 44. Eliz. Elliot versus Golding An Action of Debt brought and Judgement given for the Plaintiff and a space was left in the Roll for the Costs of the Judgement and after the Year and a Day a Scire facias was brought to revive the Judgement and in the Scire facias the Costs are put in and so Judgement by Default and afterwards a Writ of Error brought and the Error was assigned because there were no Costs put into the principal Roll and afterwards the Record was removed the Count was moved that Costs might be put into the Roll but it was denied upon the first motion and afterwards Pasch 13. Jac. it was denied by the whole Court BOnd versus Green Administrator An Action of Debt brought against him as Administrator he pleads divers Judgements amounting to 670. l. and the Assignement of 100. l. Debt to the King by Deed inrolled and he pleaded that he retained his Debt in his hands and he might have given this in Evidence or pleaded it at the Liberty of the Defendant COoper versus Bacon Action of Debt brought upon the Statute of E. 6. for Tithes and the Plaintiff declares that one was seised of the Rectory of Elveley alias Kirkley in Kingston upon Hull in his Demesne as of Fee and being so seised such a Day and such a Day at Elveley alias Kirkley did demise to the Plaintiff the said Rectory with the Appurtenances to have and to hold c. for years and that by vertue thereof he hath been and is thereof possessed and that the Defendant such a Day and before and alwayes afterwards hitherto had held and occupied 30. Acres of Land in Swandland in Kingston in a place called T. and that the Tithes did belong to him The Defendant pleads Nil debet per patriam and after a Verdict it was alleadged in Arrest of Judgement that the Issue was mis-tried because the Venire facias was of Elveley alias Kirkley and it should have been of Swandland where the Tithes grew CHapman versus Pescod Trin. 11. Jac. rotulo 2106. An Action of Debt brought upon an Obligation with a Condition to give and grant to him his Heirs and Assignes The Defendant pleads that he hath been ready to give and grant and adjudged naught for he must plead that he did it otherwise it had been if the words had been as Councel should devise MAncester versus Draper Hill 10. Jac. rotulo 2613. An Action of Debt brought upon a Bond with a Condition to pay Money if C. R. shall be then living and shall before the same 20. Day of O. by due form and course in Law perfect levy and knowledge a Fine and a Recovery before his Majesties Justices of his Highness Court of Common Pleas of and in certain Houses and Tenements with the Appurtenances which the said Draper lately had and purchased of the said C. R. the Defendant pleads that C. R. was living and did not levy c. and a Demurrer and the Question was whether Draper or Ro. should levy the Fine and held that Draper should levy the Fine BAker versus Pain Hill 10. Jac. rotulo 3139. An Action of Debt brought upon a Bond to pay Rent and perform all the Covenants Grants Payments and Conditions contained in a pair of Indentures and the Defendant pleads the Indenture and performance thereof The Plaintiff assignes the Breach that the Defendant had not paid the Money The
in the upper Bench. BRownsworth versus Trench Trin. 10. Iacobi rotulo 3628. An Action of Debt brought upon an Escape against a Bailiff of a Liberty and after a Triall Exception was taken to the Declaration because it was not alleadged therein that the Sheriff made a Warrant to the Bailiff upon the Execution but it was onely alleadged that at A. aforesaid by vertue of the Warrant aforesaid he took the Prisoner and saith not within his Liberty aforesaid and the Exception was held void Trin. 10. Iacobi An Action of Debt brought by Executors and the Defendant pleads that the Plaintiffs were not Executors and tried and found for the Defendant and the Defendant upon the Statute for Costs desired Costs because the Jury found against the Plaintiff that he was not Executor and if a Verdict passe against one that is not an Executor he shall pay Costs but Costs were denied by the whole Court for the Jury might finde an untruth BAlder versus Blackborn Trin. 16. Iacobi rotulo 465. An Action of Debt brought for Rent reserved upon a Lease for years the Case this Land was devised to a Woman in this manner that she should have the profits of the Land untill the Daughter of the Devisor should be eighteen years old and the Woman made the Lease in question reserving Rent and afterwards married and then died and if the Husband after her Death should have the Land untill the Daughter of the Devisor came to eighteen years old was the question and adjudged he should hold the Land for the Devise of the profits is the Devise of the Land and is not like a Lease made by a Guardian in Socage which ends by the Deâ—… of the Guardian the Declaration was for one Mesuage demised the fourth of May 15. Jac. for one year and so from year to year as long as both parties should agree paying twenty four pounds by the year and Nil debet per patriam was pleaded and the Jury found it specially that one I. W. was seised of the Tenement and held it in Socage and made it his last Will in writing and by that did devise to A. his Daughter the said Tenement and her Heirs for ever at the full Age of eighteen years the words of the Will were Item I will that my Wife and Executrix shall have the Education of my Daughter with the portion of Money and profits of my Land to her own use without account untill my Daughters Age aforesaid provided she shall pay the out-rents and keep her Daughter at School and by that Will made his Wife Executrix and the said W. died and his Wife survived and took upon her the Executorship and married with one P. the Woman performed the Condition and afterwards died and Judgement was given for the Plaintiff that it was a terme and that the Husband should have it An Action of Debt was brought against an Executor and the Case was thus Administration was committed to one during the minority of the Executor who wasted the Goods of the Testator and after the Executor attained the Age of seventeen years an Action of Debt was brought against the Executor and the opinion of the Court was prayed whether he might plead generally ne unques Executor or excuse himself by pleading the special matter and the Court doubled but most safe to plead the special matter An Action of Debt was brought for Rent reserved by Indenture payable at two Feasts or within twenty daies then next following and the Plaintiff declared upon a Lease for the Rent and because ten pound at the Feast of the Anunciation 10. Jacobi was behind and unpaid the Action was brought the Defendant pleads Non demisit and a Verdict for the Plaintiff and after a Triall exception was taken to the Declaration because it was not alleadged that the Rent was arrere at that Feast and twenty daies after but it was not allowed after a Verdict because he should have taken advantage thereof before RAtliff versus Executors Pasch 15. Jacobi An Action of Debt brought upon an Obligation to perform Covenants in an Indenture The Defendant pleads performance of the Covenants the Plaintiff alleadges a breach upon this Covenant that the Lessee should injoy the Land without any lawfull interruption or disturbance of the Lessor or his Executors and shewes that the Executors entred upon him in the Land and outed him and shews not any interruption for any just cause and adjudged good in the upper Bench. WHitton versus Bye Trin. 16. Jacobi It was adjudged in the upper Bench in an Action of Debt brought by a Lessor against a Lessee for years for Rent reserved during the Tearme being behind and unpaid that a Release pleaded to be made by the Lessor to the Lessee six years before the Rent was arrere of all Demands was a good Barr One cannot reserve a Rent to a stranger it must be reserved according to the privity WAinford Administrator Kirby versus Warner Trin. 13. Jacobi rotulo 1906. An Action of Debt brought upon a Bond to which the Defendant pleads that the intestate was indebted to him in such a sum and that he retained c. in his hands to satisfie himself of the Debt due to him And that he had not assets over to satisfie the Plaintiff to which Plea the Plaintiff demurrs because he did not plead generally fully administred but an Exception was taken because he shewed not that the Condition of the Bond was for payment of Money STone versus Goddard Trin. 14. Jacobi rotulo 2258. An Action of Debt brought upon divers Emissets of divers Wares Videlicet unum ahenum for five shillings unum scabum for six shillings and so divers other words which the Court could not understand what they signified in regard no Anglice was put to them and the Defendant pleaded Nil debet per patriam and the Jury gave a Verdict for the Plaintiff and Damages given for the whole Debt and moved in Arrest of Judgement and Judgement that the Plaintiff should have no Judgement for the insufficiency of his Declaration WEeks versus Wright unum Clericorum R. B. The Plaintiff exhibited a Bill against the Defendant for Money due upon an Obligation and Issue was joyned and the Cause tried and a Verdict for the Plaintiff and after Triall the Defendant moved in Arrest of Judgement that the Bill was not filed that it was not helped by the Statute of Jeofayles nor within that Statute for it is an Original but afterwards the Court granted that a new Bill should be filed so that the matter might be put to arbitrement and if the Arbitrators could not determine the matter the Court would And note the Court seemed to be of an opinion that the want of a Bill is not helped by the Statute WItchoct Linesey versus Nine Trin. 9. Jacobi rotulo 726. An Action of Debt brought upon an Obligation to perform the Covenants contained in an
the Plaintiff shews that the Rector of M. had 2. parts of the Tithes in 3. parts to be divided that the Vicar of the same place had the third part of the Tithes and layeth this by Prescription as to the manner of the taking the Tithes shews further how the Parson Vicar by several Leases had demised the Tithes to him so he being Proprietor of the Tithes the Defend sowed 10. Acres within the Parish to wit Wheat Rie c. carried it away without setting forth the Tithe to his Damage c. And upon a Nil debet per patriam pleaded it was found for the Plaintiff and moved in Arrest of Judgement that the Plaintiff had in that Action comprised severall Actions upon the Statute and that it appeared by his own shewing for the Plaintiff claimed not the Tithes under one Title but under the severall Tithes of Parson and Vicar and Fennor Justice held they could not joyn and no more could the Plaintiff who claimed severally under them and it seemed to him that the Parson could not have this Action against severall Tenants for not setting forth their severall Tithes because he could not comprehend two Actions in one but the whole Court besides held the contrary for although the Parson and Vicar could not joyn in this Case because they claim their Tithes severally by divided Rights yet when both their Tithes are conjoyned in one person as it is in the Plaintiffe then the the Interest of their Title is conjoyned also in one and it suffices generally to shew the Plaintiffe is a Farmer or proprietor of the Tithes without saying of what Title for it is but a personall action grounded meerly upon a contempt against the Statute for not setting forth Tithes and also Tithes are not demanded by this Action although the Title may come in debate yet it was agreed by all the Judges that the Plaintiffe should recover his Tithes in dammages and shall not demand them again by any suit after a recovery in this Action which Mark. BErket versus Manning Pasch 3 Jacobi Action of Debt brought against the Defendant as Administrator of J. S. The Defendant pleads fully administred the Plaintiffe replies that himself had assets and it should have been that the Defendant had assets and this was moved in arrest of Judgement but amended by the Court being the Clerks misprision onely as where it is entred predict Defend similiter and it should have been predict quer similiter and this hath been often amended by the Court. PAler versus Hardman Pasch Jacobi Hardman and his wife Executrix J. H. brought an Action of Debt in the common Pleas against Paler and as that they should restore a tun of Iron to the value of twelve l. and declare upon a Bill for the delivery of the said tun of Iron within such a time and that the Defendant had not delivered it to the Plaintiffes dammage of c. and upon non est fact pleaded it was found for the Plaintiffe and Judgement was given that the Plaintiffe should recover the Tun of Iron or the value of the same and if he should render the tun then by the oath c. should inquire what the tun of Iron was worth and before any return of the writ to inquire of the dammages the Plaintiffe in the common Pleas takes out a Capias upon the Judgement and on Exigent upon that and the Defendant brings a writ of Error and it was adjudged erroneous for two causes first because the Judgement was in the disjunctive that the Plaintiffe should recover the tun of Iron and if not the value thereof so in detinue as it appears by the Judgement in this Case that the Plaintiffe may choose whether he will have the Iron or the value thereof which he cannot do for if the iron be to be delivered he shall recover that onely but if it be not to be delivered then the value and not as before Secondly for that the Judgement is not perfect untill the writ to inquire be returned with issues to the Sheriffe to distrain the Defendant to render the Iron and also to inquire of the value and before the return thereof nothing in certain appears One which to ground any writ of Execution for the Judgement comprehends no certainty but is to be made certain by the return of the writ to inquire with the whole Court granted CArpenter versus Collins Mich. 3 Jacobi An Action of Debt brought by the Plaintiffe for rent arere and declares upon a Lease made to the Defendant at Will to be held from Mich. as long as both parties should agree yeelding and paying three pounds yearly and shews that Collins entred and occupied from the Feast c. unto the Feast of Mich. and upon nil debet plenius the Jury foundthat J. Norrington had issue a Son and a daughter and Devises that his Son shall have his Land at the age of twenty four years and gives forty pounds to his Daughter to be paid her at the age of two and twenty years an further wills that the Plaintiffe should be his Executor and should repair to his houses and have the oversight and doing of all his Lands and moveable Goods untill the severall ages aforesaid and after dies and Carpenter the Executor makes the Lease before mentioned and the Jury further find that the Son died but find not at what age he was at his death but that the Daughter at the Sons death was nineteen and no more and find the Lease made by the Plaintiffe and that the Lessee by force thereof entred and continued possession from Michaelmas for one year and more and find that within that year the Daughter entred and that the Defendant atturned to the Daughter and refused to continue Tenant to the Plaintiffe and by Fennor Yelverton and W. Judgement was given against the Plaintiffe for the Plaintif took no interest in the Land by the Will for the oversight and doing of his Lands shall be intended but in Right of the Heire and to his use because the Testator though not his Son of discretion and government untill the age of twenty four years and in the mean time appointed his Executor to oversee and order the Land to the profits of the Heâ—â—e that wanted discretion 28 H. 8. D. 26. where it is declared that J. S. shall have as well the governing of c. as the disposing setting letting and ordering of his Lands and by the Court held that J. S. had them onely to husband for the profit of his children and no otherwise but he was of opinion that the Plaintif had an estate in the Land upon a limitation determinable at the Sons age of four and twenty years and it appears not at what age he died being not found by the verdict therefore it is incertain and the Entry of the Daughter lawfull for the limitation looks but to the age of the Sonne and
not to the age of the Daughter for the age of the Daughter shall be intended to be set down for the receit of her legacy of forty pounds and for no other purpose and the Defendant within the time in which the Rent demanded is supposed to be due had not determined his Will as appears by the Verdict but Fennor and W. said that by the Verdict that the Defendant entred by force of the lease and occupied the land at the time comprised in the Declaration and more and that the Tenant at will cannot determine his will within a little time before the year end for that would prove very mischeivous to the lessor that his Tenant at will should determine his will within the year and refuse to occupy the land twenty dayes before the year end and in 21 H. 7. Crooks Reports it appears that a Lessee at will cannot determine his will within the year to the prejudice of the Lessor but that he shall answer the whole Rent to the Lessor but note it appeared that the Lessee at will was expulsed by the Plaintif that was Lessor and no other thing although done by his agreement can determine the Lease against the Lessor for it is Covin if the Lessee be not privy and acquainted with it which was granted by the whole Court and all of them agreed in the Title against the Plaintif but as the Reporter affirmed Popham was absent and hearing the Case was of opinion that the Plaintif had an interest by the words of the will JEffry versus Guy Mich. 3. Jacobi An Action of Debt brought upon an Obligation with Condition that if Jeffry the Defendant perform all Covenants in such an Indenture that then c. and one Covenant was that he should permit Guy the Plaintiffe from time to time to come and see if the House Leased by Guy and K. his Wife were in repair the Case was thus J. Bill and K. his Wife were Tenants in Tail of a house and had Issue J. B. dies K. marries Guy the Plaintiffe and they two make a Lease by Indenture to Jeffry for twenty years yeelding and paying to them and their Heirs three pounds Rent by the year with the Covenant as aforesaid Jeffry pleads in Barr the former intail and the death of R. and that VV. the Issue in Tail such a day entred before which Entry the Condition was not broken Guy replies that William came with him upon the Land to see if reparations c. and traverses the Entry of William in manner and form prout c. and Issue joyned upon the traverse and found for the Plaintiffe and Judgement given in the common Pleas upon which Judgement Jeffry brought Writ of Error in the Kings Bench and Judgement affirmed there but it was assigned for Error the Jury had not assigned any breach of Covenant in Jeffry and so had showed no cause of action but the Court held he need not in this Case for by the speciall Issue tendred by Jeffry the Plaintiffe was inforced one speciall replication to that point tendred and the Plaintiffe could not proceed error and it is not like the Case of an arbitrement wherein Debt upon an Obligation to perform the award the Defendant pleads nullum fecer arbitrium then the Defenâ—… in his replication ought to set forth the award and assign his breach because the Defendants Plea is generall but if in such Case the Defendant should plead a release of all demands after the Arbi-Arbitrement by which he offers a special point in Issue there it suffices if the Plaintiff answers to the Release or other special matter alleadged by the Defendant without assigning any Breach so in this Case the special Plea of the Defendant had disabled the Plaintiff that he could not assign any Breach of Covenants but of necessity ought to answer to the special matter alleadged RAstell versus Draper Mich. 3. Jacobi An Action of Debt brought for nine and thirty pounds the Plaintiff declares that the first of May primo Iacobi sold to the Defendant twenty Northern Clothes for sixty pounds Flemish Money to be paid upon Request which sixty pounds Flemish Money amount to nine and thirty pounds English Money and that the Defendant though often requested had not paid the nine and thirty pounds to his Damages of c. The Defendant pleads Nil debet per patriam and found for the Plaintiff and moved in Arrest of Judgement that the Plaintiff should have demanded the summ according to the Contract which was for sixty pounds Flemish and to have shewed that it amounts to nine and thirty pounds English but the whole Court against it for the Debt ought to be demanded by a name known and the Judges are not skilled in Flemish Money and also when the Plaintiff hath his Judgement he could not have his Execution by that name for the Sheriff cannot tell how to levy the Money in Flemish and also it is made good by the Verdict for the Jury have found the Debt demanded to wit nine and thirty pounds But if the Contract had been for so many Ounces of Flemish Money or a Barr of Silver and Gold now it cannot be demanded by the name of twenty pounds or such a summ which is not Coin nor used in Trade or Merchandise but in such Case must have a Writ of Detinue and in that recover the thing or the value and so in the Book of Entries fol. 157. is the President where Debt was brought upon two severall Obligations and demands eight and twenty pounds and declares severally that by one Obligation he owed eight and twenty pounds of Flemish Money and 34 H. 6. 12. 9 E. 4. 46. But note in that Case the Plaintiff if he would might have declared in the Detinet and it had been good ROlles versus Osborn Mich. 3. Jac. The Plaintiff brought an Action of Debt against the Defendant upon a Bond of a thousand pounds and Serjeant Nichols moved the Court for the Defendant and shewed that the Plaintiff and Defendant were obliged each to other in a thousand pounds a peice that they should intermarry before such a Day and both their Obligations were forfeited and each of them sued the other and the Defendant prayed that common Bail might be accepted of her and she would accept of common Bail of the Plaintiff and the Court held it reasonable but said if they would marry both their Bonds might be saved BArneshurst versus Yelverton Hill 3. Jacobi The Plaintiff as Administrator of I. S. brought an Action of Debt against the Defendant upon a Bond and obtained a Judgement and afterwards the Administration is revoked yet notwithstanding the Plaintiff proceeded and took the Defendant in Execution and upon a Motion in the Court the Court held the Execution void and that the Defendant ought to be discharged because it issued out erroneously for the Letters of Administration being revoked the power of the Plaintiff is gone
use of my Master Mr. Serjeant Gaudy the sum of forty pounds to be paid at Mich. following the Plaintiffe brought an Action of Debt upon this Bill and declared verbatim as the Bill was and demanded the four pound to which Declaration the Defendant demurred and his pretence was as he supposed because he had received the money but as a servant to another use and so he ought not to be charged as a principall Debtor for the Bill is but a Testimony of the Receit as is the 1 H. 6. and 2 H. 6. in account for there an Indenture testifying the Receit which under Seal did not alter the nature of the first account but it was adjudged for the Plaintiff for although the first part of the Bill witnesse the Receit to be to anothers use yet in the last clause of the Bill for the payment of the money he doth not say to be repaid by his Master for then it would not charge him but the clause is generall to be repaid which of necessity ought to bind him that sealed for otherwise the party shall loose his Debt because he had no remedy against Serjeant Gaudy and because the Debt appears to be due it shall be intended to go onely in satisfaction of a due Debt which mark ALexander versus Lamb Mich. 6 Jacobi the Plaintiff brought an Action of Debt upon an Obligation of forty pounds against Lamb as Executor P. the Defendant pleads that P. in his life time was indebted to him in forty pounds due Debt and that the goods of the Testator to the value of ten pounds came to the Defendants hands which he retained towards satisfaction of his Debt and averred that no more goods beyond the goods to the value of ten pounds came to his hands to be administred the Plaintiffe replyed and shewed that the Defendant is Executor in his own wrong to P. and that he hath many other goods of P. to be administred at S. in the County of Norfolk and concludes hoc paratum est verificare c. the Defendant rejoyns and demands judgement if the Plaintiffe shall be admitted to say that the Defendant is Executor of his own wrong seeing by his Declaration he had affirmed him to be Executor of the Testament the Plaintiffe demurres in Law to this Plea and as to the matter in Law all the Court was for the Plaintiff for he may well reply that the Defendant is Executor of his own wrong notwithstanding the Declaration for there is no other form of declaring as is adjudged in Coults Case 5 Rep. fol 30. but the whole Court held the whole Plea to be discontinued for the Defendant having pleaded as to the Goods to the value of ten pounds which he retained in his hands for a Debt due to him and that he had no other Goods and concludes hoc paratum est definire which is not good for he ought to have said hoc petit quod inquiratur per patriam for there being a surplusage of the Goods denied by the Defendant and urged by the Plaintiff it ought to come in issue but could not by reason of the ill conclusion but in the same Term between West the Plaintiff and Lane Defendant West demanded four pounds Debt against Lane as Executor as above and all the rest of the Plea is as above and Judgement was given for the Plaintiff because the Defendant had confessed Goods to the value of ten pounds in his hands which was more then the Defendant demanded and therefore although by Judgement of Law an Executor of his own wrong cannot retain Goods to pay himself and although the other proceedings in the Plea are naught yet Judgement shall onely be given upon the confession of the Defendant and so it was entered with Mark GReen versus Eden Mich. 6 Jacobi The Plaintiff brought an Action of Debt upon an Obligation for a hundred pounds dated September the third 1 Jac. the Condition was that if the Defendant the fourth of September anno 20 Jacobi pay a hundred pounds to I. S. at such a place and also save the Plaintiff harmlesse from any suit which should be brought against the Plaintiff by reason of the Bond in which he was bound to J. S. as Surety for the Defendant then c. the Defendant pleaded that true it was that he by his Obligation bearing Date September the third 1 Jac. did become bound to the Plaintiff in two hundred pounds but further said that the said Obligation was not delivered as the Defendants deed untill the seventeenth of September in the second year of King James and then it was first delivered and further sayes that he had found the Plaintiff harmlesse c. to which plea the Plaintiffe demurres and adjudged for the plaintiff for the Bond mentioned in the Declaration is not answered for the plaintiffe indeed shows that the Defendant was obliged to him by his Obligation bearing date the same Day c. which is laid to be a perfect Bond the same day as the Plaintiff counts and then for the Defendant to come and say that it was first delivered the seventeenth of September 20 Jacobi which is a year after is no good Argument but naught without taking a traverse without that it was made the third of September 10 Jacobi Secondly as the Defendant hath pleaded he hath made part of the Condition idle and vain for by the Condition it appears that there is a Condition for the payment of a hundred pounds at a Day to come to wit the fourth of September in the second year and now the Defendant by his Plea hath made the Day of payment passed before he supposes the Bond to be delivered within a manner takes away the effect of the Plaintiffs suit and if the Condition had not stood upon two Branches but upon one onely and the Defendant will plead the Delivery after the Condition becomes impossible to be performed then is the Obligation become single for the whole two hundred pounds which mark by the whole Court BArret versus Fletcher Pasch 7 Jacobi The Plaintiff brought an Action of Debt upon an Obligation of five hundred pounds with a Condition to stand to the Award of J. S. and J. D. so that c. the Defendant pleads if the Arbitrator made no Award the Plaintiff replies and shews the Award made verbatim and concludes that they had made an Award and doth not assign any breach The Defendant rejoyns that the Award pleaded is not the Deed of the Arbitrators and Issue being joyned upon that there was a Verdict for the Plaintiff and Yelverton moved in arrest of Judgement because the Plaintiff in his replication had not assigned any breach of the Award and so had shewed no cause of Action for the replication is not for any Debt but is guided by the Condition and is for the performance of a collaterall thing to wit of an Award and although the Defendant had not answered any thing
to the breach if it had been assigned yet the Court ought to be satisfied that the Plaintiffe had good cause of Action to recover otherwise they should not give Judgement and although a Verdict is given for the Plaintiff yet this imperfection in the Replication is matter of substance and is not helped by the Statute by the opinion of the whole Court except Justice Williams BArwick versus Foster Mich. 7 Jacobi Action of Debt brought for Rent the cause was thus the Plaintiff leased certain Lands to the Defendant at Mich. 1 Jacobi for five years yielding and paying Rent at our Lady Day and Mich. yearly or within ten dayes after and for rent behind at the last Mich. the Plaintiff declares as for Rent due at the Feast of Saint Michael and prima facie it seemed to the whole Court but Crook that the Action would not ly but that the Rent for the last quarter was gone for it was not due at Michaelmas as the Plaintiff had declared for his own shewing it is payable and reserved at Michaelmas or within ten dayes after although the Lessee might pay it at Michaelmas Day yet it is not any Debt which lies in demand by any Action untill the ten dayes be passed and the reservation being the Lessors Act it shall be taken most strongly against himself and although the end of the Term is at Michaelmas before the ten dayes untill which time the Rent is not due and because at that time the Term is ended the Lessor shall loose his Rent as if a Lessor die before Michaelmas Day the Executor shall not have the Rent but the Heir by discent as incident to the Reversion and if the Lessee should pay the Rent to the Lessor at Michaelmas day and the Lessor should dye before the tenth Day his Heir being a Ward to the King the King shall have it again for of Right it ought not to be paid untill the tenth day according to the 44 E. 3. but this Case being moved again in Hillary Term Fleming Fennor and Yelverton changed their opinion and held that the Lessor should have the Rent for it was reserved yearly and the ten dayes shall be expounded to give liberty to the Lessee within the Term for his ease to protract the payment but because the ten dayes after the last Michaelmas are out of the Term rather then the Lessor shall loose his Rent yearly the Law rejects the last ten dayes MOlineux versus Molineux Hill 7 Jacobi An Action of Debt brought against Mo. upon an Obligation as Heir to his father the Defendant pleads that he hath nothing by discent but twenty Acres in D. in such a County the Plaintiff replies that the Defendant had more Land by discent in S. to wit so many Acres and upon this they are at Issue and found for the Defendant that he had nothing by discent in S. by reason of which the Plaintiff could recover and had his Judgement to have Execution of the twenty Acres in D. upon which Judgement in the Common Pleas the Defendant brought his Writ of Error and assigned for Error a discontinuance in the Record of the Plea from Easter Term to Michaelmas Term after and whether this were helped by the Statute of 18 Eliz. because it was after a Verdict was the question and adjudged to be out of the Statute and that it was Error for the Judgement was not grounded upon the Verdict but onely upon the confession of the Defendant of Assetts and the Verdict was nothing to the purpose but to make the Defendants confession more strong and therefore the Statute of the 18 of Eliz. is to be intended when the triall by Verdict is the means and cause of the Judgement which mark and therefore the Judgement was reversed the Law seems to be the same if the Plainiiff brings an Action of Debt for forty pounds and declares for twenty pounds upon a Bill and twenty pounds upon a non tenet and the Defendant confesses the Action as to the money borrowed and they are at issue as to the money demanded by the Bill which Passes also for the Plaintif by reason wherof he hath Judgement to recover the forty pounds demanded and the Damages assessed by the Jurors and Costs intire in which Case if there be a discontinuance upon the Roll it seems that all shall be reversed notwithstanding the verdict for the verdict is not the onely cause of the Judgement but the Confession also and the Costs assessed intirely for both but yet inquire of this It was adjudged by the whole Court that in those Cases where an Executor is Plaintiff touching things concerning the Testament and is non-suited or the verdict passes against him that he shall not pay Costs upon the new Statute of 4 Jac. for the Statute ought to have a reasonable intendment and it cannot be presumed to be any fault in the Executor who complains because he cannot have perfect notice of what his Testator did and so it was resolved also by all the Judges of the Common Pleas. GOodier versus Jounce Trin. 8 Jacobi Jounce recovered in the common Pleas a hundred and thirty pounds against Goodier in Crastino Animar 6 Jacobi and the eight and twentieth of November the same Term being the last Day of the Term the Plaintiff proved an Elegit against Goodier to the Sheriffs of London where the Action was laid and to the County Palatine of Lancaster returnable Crastino Purificationis after which was granted by the Court and by the Elegit to the County Palatine it appeared that it was grounded upon a Testat returned by the Sheriffs of London that Goodier had nothing in London where in truth they never made such a Return and upon that Elegit by a Jury impannelled before the Sheriff of Lancaster a Lease of Tithes was extended for fifty nine years then to come at the value of a hundred pounds which the Sheriff delivered to J. the Plaintiff as a Chattell of Goodiers for a hundred pounds and returned it and that Goodier had no more Goods c. and thereupon Goodier brought a Writ of Error in the upper Bench and assigned for Error that no Return was made by the Shetiffs of London nor filed in the common Pleas as was supposed in the Elegit and it was adjudged Error for although the Plaintiff might have an Elegit as he desired in the common Pleas immediately both into London and Lancashire but seeing he waived the benefit thereof and grounded his Execution upon a Testatum which was false it was Error in the Execution for as it appears 18 H. 6. 27. and 2 H. 6. 9. that a Testatum is grounded upon a former Return filed that the party had nothing in the County where the Action was brought and because it appeared upon Record that the prayer of the Elegits was made the eight and twentieth of November the last day of the Term and by the Testatum it is supposed
of Parent 42 Imparlance what plea after 42 Judgment Arrested 2 Judgment reversed because the Sheriff was not named in the Venire facias 3 Iudgment arrested 5 Justification not good where 5 Justification amounting to a not guilty naught 5 Innuendo will not help the action 7 9 Imparlance Roll supplyed by the issue 9 Juror committed 44 Judgment upon a By-law 48 49 Judgment pleaded in Bar by Executor 49 Judgment against Executors 53 Imparlance amended 53 Judgment arrested for improper words Sans Anglice 82 Jeofaile the statute not helping where 82 Judgment reversed by Error in the disjunctive 88 Intendment upon a Will 89 Judgment reversed in an inferiour Court why 97 Judgment reversed for Errour in the judgment 99 Judgment reversed for changing the Defendants addition 100 Judgment priority considerable 102 Judgment reversed for not shewing in what Court a deed was enrolled 115 Judgement reversed for want of words in the Tales 115 116 Implication not allowed of in a surrender where 128 Judgment in an Eject firmae 129 Interest what 136 Judgment reversed by Writ of Error non obstante a verdict the Statute of 18. Eliz. 106 Imparlance what is pleadable after 138 Joynture what 139 Interest in possession and in future the difference 148 Implication not intended where 153 Judgment arrested for that the plea was naught 172 Jurors name mistaken was amended upon constat de persona Iudgment arrested for not shewing in what place the Messuage did lie to which Common did belong 188 Iury challenge 194 Iudgment it 's nature as to the Plaintiff and Defendant 194 Issue helped by the Statute of Jeofailes where 200 Iudgement reversed because the writ of Enquiry was before a wrong Officer 203 Imprisonment justified by the commandment of the Maior of London naught where 204 Justice of Peace cannot command his servants to arrest in his absence without Warrant 205. Iustification in Trespass for a way 212. Iustification not good where 218. Iustification speciall pleaded in Battery 226. Issue of things in severall places 229. K. KIngs Title not lost 164 Knight ought to be returned in the Pannell where 193. L. LAw Gager lies not if the except be per manus proprias 25 Lease to two determined upon the death of one where 30. Lease of a Reversion sans Attornament where good 30. Legacy of Land not suable for in Court Christian 32. Legacy of a Chattell suable for in Court Christian 34. Locallity not to be made transitory 35. Limitation is taken strictly grant aliter 39. Lessee at will cannot grant over his Estate 43. Law mistaken where it is hurtfull 41. Letters of Administration ought to be shewed 9. Law waged where 53. Law wager by a false party 55. Letter of an attorny where naught 94. 95. Law Gager lies not in debt for sallery 60. Law Gager where 70. 65 Lessee at will if he determine his Will Devis au yet shall pay the intire Rent 90. Lease to try a Title of Lands in the hands of many 129. Lease to be executed by Letter of an Attorney how 129. Lease made to three for their lives with a Covenant that the Land should remain to the survivor for 90 years is a good Interest in the Survivor 136. London how houses passe without inrollment 141. 142. Liberty to make Leases 169. Lease for life to three where it was naught 175. Lord of Parliament not appearing shall forfeit 100 l. 193. Lunatick where an Action ought to brought in his name 197. Levant and Couchant is certainly fufficient 198. M. MIstryall the Ven. fac mistaken 17 Mistake of the Iury 18 Misprision of the Clerk amended 26 Monasteries dissolved onely those Regular 39 Mistake by the Court no prejudice 42. Mistriall 7. Missworn fellow Actionable 9. Medietas Linguae where 45. Master chargeable where 64 Misprision of the Clerk amended after tryall 88. Mannor by that name what will passe 155. Mistake of a day of an Act by way of Bar not prejudicial 196. Marshalsey hath no authority to hold plea of Debt except one party be of the houshold 199 Marshalsey no Iurisdiction 199. 200. Master cannot have an Action for the loss of Service if the Servant die of the beating 205. N. NOtice not necessary 10 Non est inventus where the party did escape 12 Nusance where it lyeth 4. Non damnificatus pleaded 7 Noverint for non assumpsit 8. Notice where needfull 46. Nul tiel Record pleaded to a Plea of Outlawry 84. Non damnificatus pleaded 118. Nisi prius amended by the Roll 133 Nonage tryed where it is alledged not where the Land lies 150. 151. Non-tenure pleaded 153. Nisi prius the Record amended upon motion 156 Nullum tempus occurrit Regi 166. Negativum praegnans 172. Non residency the Statute 13 El. a generall Law 208. New Asignment where not good 217. Bar to it 236. Nihil dicit 237. 238. Non omittas 240. O ORdinary cannot make a division 32. Ordinary his power 45. Outlawry no Plea where 55. Outlawry in the Testator 55. Originall want of it after verdict no Error 97. Obligation discharged why 98. 99. Originall against four count against three without a Simulcum adjudged naught 130 Ordinary and Patron their severall Rights 202. P. PArdon generall de effect 10. Promise by an Infant not good 11 Papist to a Bishop actionable 12. Proviso implicit where good 14. Perjured knave actionable 15. Proviso 18 19. Pyracy no excuse in an Action of Covenant 21. Plea in abatement 27 in Assise 28. Premunire in a Parson 30. Pleas severall cannot be in a joint debt or contract 30. Proof how far extendible 33 Where required and where not 34. Pardon crimen legitur non tollitur 34. Priviledge from Arrest where not to be allowed 84 Prender and Render the difference 34. 35. Prescription where good 35 Property not altered upon a Scire facias 41. Punishment corporall not to be imposed for the default of a deputy where 45. Proviso Executory and executed the difference 8. Priviledge respective 47 Payment where peremptory 49 Plea made good by verdict 52 Payment when upon demand 52 Pardon generall pleaded 56. Plea to a Bond taken by the Sheriff 58. Payment to the Heir and not to the exceutor where good 64. Priviledge of an Vniversity where not to be allowed 75. Plene adm nistravit no Plea where 77 78. Proprietor sufficient 88. Priviledge of Parl. pleaded 92 Plea naught for want of traverse 98. Primo deliberat shall not be pleadded sans traverse 105. Propriety of goods cannot be in abeyance 132. Prescription and custome do differ how 132. Processe misawarded where helped by the Statute 134. Plea where it shall be in discharge but not in Barr of an obligation 109. Partition Processe in it 156. For whom it lies 157 Partition error in the first Judgement 157. Partition in another Writ was pleaded Presentment of a Clerk by words good 162. Patrons 6 moneths 165. Proprietate probanda 167. Plea naught 173. Pannell of hab corp
elect him See the Statute of 25 H. 8. That a Canon against Common Law confounds the Roiall Prerogative of the King or Law of God is void and Custome of the Realme cannot be taken away but by act of Parliament See 21 Ed. 4. 44. the Abbot of Saint Albones hath a Charter of the King to be discharged of Collection of tenthes granted by Parliament or Convocation The Clergy grants tythes in Convocation there is a clause in the grant that no one of them who shal be chosen to be collector shal be discharged of collection by colour or force of any Letters Patents and after they return the Abbot of St. Albones Collector who pleads his Letters Patents in discharge of Collector and resolved by the Court that the clause in the grant of tenthes doth not take away the exemption of discharge by the Letters Patents granted And it was resolved that if the Parish clark misdemene himselfe in his office or in the Church he may be sentenced for that in the Ecclesiasticall court to Excommunication but not to Deprivation And after Prohibition was granted by all the court and held also that a Prohibition lyeth as well after sentence as before Trinity 8. Jacobi Common Bench. ON was cited to appear in the Prerogative Court of Canterbury which was out of the Diocesse of Canterbury and upon that he praied Prohibition upon the Statute of 32. H. 8. Which willeth that none shall be cited to appeare out of his Diocesse without assent of the Bishop and Prohibition was granted And yet it was said that in the time of H. 8 and Reigne of Mary that the Arch Bishops of Canterbury had used to cite any man dwelling out of his Diocesse and within any Diocesse within his Province to appeare before him in the Prerogative Court and this without the assent of the Ordinary of the Diocesse But it was resolved by the Court that this was by force of the power Legantine of the Arch-Bishop that as Lynwood saith ought to be expressed in the Prohibition for the Arch-Bishop of Canterbury York Pisa and Reymes were Legati nati and others but Legates a Latere Hillary 1610. 8. Jacobi in the Common Bench. Beareblock against Reade IN an Action of Debt brought by Beareblocke against Reade Administratrix to her Husband upon a Judgement given in this Court The case was this the Plaintiffe had Judgment against the Husband and after sued him to an Vtlagary and upon that he brought a Writ of Errous and removed the Record into the Kings Bench and reversed the Judgement for the Vtlagary But the first Judgment was affirmed and then the Husband acknowledged a Statute and dyed And the Wife took out Letters of Administration and then the Statute is extended against the Wife and all the goods which shee had of the Intestates taken in execution After which Beareblock in the Kings Bench sueth a Scirefacias upon the said Judgment against the said Administratrix to have execution and shee pleads upon that the said Statute in Barre and the extent of that and that more then that shee hath nothing to satisfie and this was adjudged a good plea. And then the Plaintiffe being not satisfied he hrought an action of debt upon the said Judgment in this Court and in Barr of that the Wife pleaded all this matter in Barr as aforesaid upon which the Plaintiffe demurred in Law and the Judges seemed to incline that this was no Barr for though that the Wife hath not any means to aide her selfe or to prevent the extent of the Statute yet it seemed to them that this should not prevent the execution upon the Judgement and that the Wife might have Audita quaerela against the Connusee of the Statute and so to make the extent void It was not argued at this day but the point only opened see 3. Eliz. Dyer 7. H. 6. See Pasche 9. Jacobi the Residue Petty against Evans IN an Ejectione firme brought by the Lessee of a Copy-holder it is sufficient that the count be generall without any mention of the License if the Defendant plead not guilty then the Plaintiff ought to shew the Lycense in Evidence But if the Defendant plead specially then the Plaintiff ought to plead the License certainly in his replication and the time and place when it was made and in this case the Plaintiff replied that the copy-holder by License first then had of the Lord did demise and did not shew what estate the Lord had nor the place nor time when it was made and all the Justices agreed that it is not good For the License is traversable for if a copy-holder without License of the Lord make a Lease for yeares The lessee which enters by calour of that is a Disseisor and a Disseisor cannot maintain an Ejectione Firme and the Defendant cannot plead that the Plaintiff by license did not demise for this is a pregnant negative also it ought to appeare what estate the Lord had for he cannot give license to make a lease of longer time in the Tenancy then he hath in the signiory And for that if he be Lessee for life of a Mannor and he licenses a copi-holder to make a Lease for 21. yeares of a copy-hold and then the Lessee for life dies the license is for that determined though that the copy-holder be of Inheritance for the Inheritance of the Lord is bound by that And for that the Plaintiff replies that the copy-holder by license of the Lord first therefore had made the Lease that is not good by Coke and Walmesley expresly and though that the Defendant confesse the Replication by Implication by pleading Yet this shall not ayd the Plaintiff for that it is insufficiently pleaded which note Hillary 8. Jacobi 1610. in the Common Bench. IN action upon the case upon an Assumpsit the Plaintiff counts that when he such a day at the speciall instance and request of the Defendant lent to the Defendant the same day ten pound And that the Defendant the same day in consideration thereof assumed and promised to the Plaintiff to pay the same summ of ten pound at an other day to come And it was moved in arrest of Judgement that the consideration was too generall and for that the action not maintainable and all the Justices but Foster seemed the consideration was good but Foster it seems was in some doubt of that but Judgement was entred for the Plaintiff according to the verdict And Coke cheife Justice said that such a like action was maintained against Kercher his Chaplain as Executor of his Father and it seems for good Law Legates Case ONe Legate was committed to Newgate Prison for Arrianisme for denying of the Trinity by the high Commissioners and it was moved on the behalfe of Legate to have a habeas Corpus and it was granted and it was said by Coke cheife Justice that the Statute of 5. H. 4. Chapter 10. Inhibits Justices of peace to commit any man to
is no parcell of the Bill and for that it need not to be contained in the Count 9 H. 6. 15 16. A thing which doth not intitle the Plaintiff to action need not to be contained in the Count 36 H. 6. 6. If the condition be indorced or subscribed it need not to be contained in the Count but if it be contained before the in witnesse then it ought to be contained in the Count 21 Ed. 4. 36. If a man be bound to pay ten pounds when the Obligee carries two hundred load of Hay to his House there the condition is precedent and it ought to be contained in the Count 22 Ed. 4. 42. accordingly so here the matter is subsequent to the in witnesse and there is not any other matter upon which the action is founded nor contained in the body of the Bill nor to be performed by the Obligee and for that he prayed Judgment for the Plaintiff Shirley Serjeant for the Defendant that the sealing is immediately after the Proviso and is adjoyning to the Bill in writing and for that be it to be performed of the part of the Plaintiff or Defendant it ought to be mentioned in the Count for this intitles the Plaintiff to his Action of the case in 36 H. 6. 6. It is a condition subsequent and there need not to be shewed but if the condition be precedent and contained in the writing before the insealing there it ought to be mentioned in the Count and in this principall case this is either a condition Precedent or nothing for it is that he shall not be compelled to pay the sayd ten pounds untill he had recovered thirty pound and if he never recover he never shall pay the ten pound and it is a condition of the part of the Defendant and it is adjudged in Vssards case that where a condition is precedent there it ought to be contained in the Count but where it is subsequent otherwise it is So 15 H. 7. 1. Grant that when the Grantor is promoted to a Benefice that he ought to give to the Grantee ten pound this is precedent but in the principall case it is a Condition or Covenant and though that it be subsequent yet it may stay the Suit as well as an acquittance which is to be an acquittance if he be vexed otherwise not but a condition that he shall not sue the Bill is void for it is contrary to that and barrs him of all the fruit of that and precedent condition may be placed after the in Witnesse as well as before so he prayed Judgment for the Defendant Coke cheife Justice said that this which is after in witnesse is not part of the Deed but may be a Condition or Defeasance but if it be not in witnesse in the Deed then it shall be parcell of the Bill but though that this be put after the in witnesse yet it shall have his force as Defeasance but it need not to be contained in the Count for in Bonds and personall things there need not such strict words as in other Deeds and for that this shall be a good Condition or Defeasance but then the Defendant ought to have that so pleaded and not demurr for this makes the Bill conditionall VVarberton and Foster agreed VValmesley did not gainsay it and for that it was adjudged for the Plaintiff if the Defendant did not shew cause to the contrary by such a day which was not done Note It was adjudged by all the Justices that fealty gives seisin of all annuall services sufficient to make seisin in avowry but not in Assise but of accidentall services this gives seisin in Assise and a man cannot take excessiive distresse for that for this is more sacred service as Littleton saith of Homage the most honourable See 42 Ed. 3. 26. 11 H. 4. 2. Note Two retaine an Attorney both dye the Executor or Administrator of the survivor shall be onely charged and not the Executors of them both for a personall contract survives of both parties otherwise of reall contracts as warranty See 16 H. 7. 13. a. 3 Coke Sir William Harberts Case 30 Ed. 3. 40. 17 Ed. 3. 8. The Attorney brought an Action of Debt against both and the Executors of both the parties which retained him for his Fees and both pleaded joyntly that they detained nothing and it was found for the Plaintiff and upon motion in arrest of Judgement the Judgement was stayed insomuch that the Executor of the survivor was onely chargeable notwithstanding the pleading and admission of the Parties Note That it was agreed by all the Justices that by the Law of Merchants if two Merchants joyne in Trade that of the increase of that if one dye the other shall not have the benefit by survivor See Fitzherberts Natura brevium Accompt 38 Ed. 3. And so of two Joynt Shop-keepers for they are Merchants for as Coke saith there are foure sorts of Merchants that is Merchant Adventurers Merchants dormants Merchants travelling and Merchants residents and amongst them all there shall be no benefit by survivor Jus accrescendi inter Mercatores locam non habet Note That Arbitrators awarded that every of the parties should pay onely five shillings for writing the award to the Clark and agreed that the award was voyd to that part and good for the residue for they cannot award a thing to be made to a stranger Action upon the Case was brought for these words He is a Cozening Rogue and hath cozened Richard Wood of thirty pound and goeth about to doe the like by me and agreed that the action doth not lye So for Rogue or Cozener for it is without aspersion and gentle and words shall be taken in the gentlest sense Devise that Executors shall sell Land with the assent of J. S. if J. S. dyes before that he assents the Executors shall not sell notwithstanding the death of J. S. was the act of God and in the life time of J. S. they could not sell without his consent and so it was agreed in the Case concerning Salisbury Schoole where the under Schoole-Master was to be placed by the head Schoole-Master with the assent of two cheife Bailiffs and it seems the head Schoole-Master cannot place without their consents Note it was said to be adjudged that the Inhabitants of a Town cannot be incorporated without the consent of the major part of them and incorporation without their consent is void In action upon the case the case was this The Brother of the Defendant spoke these words to the Plaintiff that is Thou Theif thou Goale whelpe thou hast stolne a peice of Silver from my Master Hocken and the Defendant sayd as insued that is That which my Brother spake is true I will justifie it and spend a hundred pounds in proofe thereof and it seems to the Court that the Action doth not lye against the Defendant insomuch that it doth not appeare by the Court that
not the accidentall as here it is but it is the substantiall forme and every one knows that Meale of Wheat is the same as Pepper beaten in a Morter and Pepper and all other Spices so that it is the same in number existence substance and essence and he intended also the same in intention for Meale is Victuall and is dead Victuall be it Corne or Meale and Corn grownd and made in Meale then sold yet that remains dead Victuall and Meale is the same dead Victuall though that it be not the same Corne and to prove that Corn is Victuall he cyted the Statute of 25 Edw. 3. 5. Stat. Chap. 7. Which provides that no Forester shall make any gathering of Victuals by colour of their Office and hee intended that Corne was within this statute and so also of the statute of the 3. P. and M. Chap. 15. Rastal Universities which provides that to the Purveyor Bargainor for any Victuals within 5 miles of any of the Universities of Oxford or Cambridg where Grain and Victuall are joyned together So the Statute of 25 H. 8. Chap. 2. abridged by Rastall Victual 15. which inhibits the transportation of Victuall if it be not of Meal and Butter into Ireland by which it appears that Meale is dead Victualls And he said that Victuals is that which refresheth men and Victualls are those things which to the use of eating and drinking are necessary So that Meale is the same in number though that the Corne were turned into Meale And he cyted Peacock and Reynolds Caâ—e to be adjudged 42 Eliz. That if a man buy Corne and convert that into Meale and so sell it it is within this Statute And hee said that if a man be made a Knight hanging his action that this shall abate his action but yet he remains the same person but his name is changed which is the cause of the abatement of his action 7 H. 6. 15. Also the Defendant is concluded by his demurrer upon the Information to say that it is not the same thing for this is confessed by the Demurrer and though that the name be changed this is not materiall if the substance be the same and he agreed that a Baker which buys Wheat and makes it into Bread is not within the Statute for he furthers that to the use of man as a Curryer makes the Leather more fit and apt for use but so doth not he which makes it into starch for he furthers the abuse for it is no lawfull Occupation but idle and friâ—olous furtherance of vanity of men And in 35. H. 6. 2. If a man enter into the Land of another man and cut Trees and that square and make into Boards yet if the Owner enter hee may take them But if it be made into a House otherwise it is for there it is mingled with other things as it is 5 H. 7. 15 16. So Iron made in Anvill But of Leather made in Shooes otherwise it is insomuch that it is mingled with other things 12 H. 8. 11. a. A dead Stag is not a Stag but is a certain dead thing and flesh As a man dead is not a man but agreed the Book of H. 7. 15. and 16. That Corne converted into Meale cannot be restored nor reprized no more may that if it remains in Corne if it be not in Baggs And hee said that upon the Statute of Merton the Re-disseisin after the Recovery in Assise if the same Disseisor makes Re-disseisin the Sheriffe may examine that c. And it is agreed in 27 H. 6. That if Tenant in tayle be disseised and recover in assise and is put in possession and after his Estate is altered and he become Tenant in tayle after possibility of Issue extinct and then the Disseisor makes Re-disseisin that this is aided by the statute not that it is alteration of the Estate And also he saith it appears more fully by the Proviso by which it is provided that Barley turned into Malt and Oates turned into Oatmeale if it be by Ingrossing it is within the purview of the statute So if it be by way of Fore-stalling or if they sell them again before that they are converted shall be Regrators And to the Objection that other things that is Water and Fire are added to that he saith that none of them remains for the Fire dryes the water and the fire also goeth out and so he concluded and prayed Judgment for the King and the Informer and it was adjourned Michaelmass 1611. 9. Jacobi in the Common Bench. IN Dower against Infant which makes default upon the grand Cape returned and agreed by all the Justices that Judgment shall be given upon the Default for the Infant shall not have his age and so it was adjudge upon a Writ of Error Charnock against Currey Administrator of Allen. IN debt upon an Obligation against the Defendant as Administrator as above he pleads Judgment had against him in an action of debt and over that hath not to satisfie to which the Plaintiff replies that this Judgment was for penalty and the condition was for a lesser sum and that the Plaintiff in the first action had accepted his due debt and had promised to acknowledg satisfaction of the Judgement at the request of the Defendant and at his charges and the Administrator which was the Defendant did not make request upon fraud and Covin to avoid the Plaintiffs action Upon which the Defendant hath demurred and so confesseth the matter of the Plea But Foster seemed that the Plaintiff ought to aver that the Plaintiff in the first action hath offered to acknowledg satisfaction and that otherwise he should be put to his action upon the Case but Coke and Warberton intended that the Replication is very good without such averment for it shall be intended that the Plaintif will perform his promise But further this Demurrer which was only for part was also for another part an Issue joyned for the other part which was to be tryed by the Country and which shall be tryed of the Issue or of the Demurrer was the question and it was agreed by them all that the Issue or Demurrer shall be first at the discretion of the Court see 11 H. 4. 5. 38. Ed. 3. Commission is granted to the Councel in Wales of which the President Vice-president or Cheife Justice to be one And the question was if they might make a Deputy and it was agreed that a delegate power could not be delegated but they might make an Officer to take an accompt in any such act Note that a Caveat was entred with a Bishop that he should not admit any without giving notice that the admission this notwithstanding is good but if he admit one which hath no right he is a disturber but otherwise the Caveat doth nothing but only to make the Bishop carefull what person he admits Foster Justice seemed that if the Ordinary now after the statute of
Inhabitants to it Sixtly He conceived that the constitution is not pursued for the constitution is that if any Water-man carries any passenger willing to go by the Bardge that such Water-man shall pay for every such passenger two pence And it is not averred that the passengers which the Defendant hath carried were willing to be carried by the Bardge and so not pursued Seventhly The Constitution is further that no Wherry-man shall carry any passenger before the Bardge be fully dismist and transmist and this is not good for it may be the Bardge will not passe to London at all this Tyde and for that it ought to be averred that the Bardge departs in convenient time after that it is furnished for otherwise custome that none shall put his Beasts into such a place till the Lord hath put in his Beasts is not good for it is resolved in 2. H. 4. 24. And the reason is insomuch that it may be that the Lord will not put in his Beasts at all And to the objection that the By-Law shall not bind a stranger he conceives that if all other circumstances had been concurrent that had been very well insomuch that it was within the place where they had power to make By-Lawes and also for the publick good and this as well as the custome of Forraine bought and Forraine sold the which is only for strangers And to the objection that they are severall owners of severall Bardges and for that ought not to joyne in this Action he saith this doth not appeare by the Count but it is said that they were possessed and for that they shall be intended Joynt Owners and so he concluded that Judgement shall be arrested Trinity 10. Jacobi 1612. in the Common Bench. Downes against Shrimpshaw Trin. 9. Jacobi Rot. 334. IN action of Trespasse for Assault and Battery the case was this The Plaintiff in his Count supposeth the Trespasse to be made the first day of May 8 Jacobi at such a place The Defendant pleads that the Plaintiff the same day would have assaulted and beaten him and that the Defendant laid his hands upon him to defend himselfe and if any hurt came unto him it was by his own wrong the which is the same Trespasse for which the Plaintiff hath complained him The Plaintiff replyes of his own wrong without such cause upon which Issue was joyned and at the Nisi prius for Justification the Defendant produced Witnesses which proved an assault to be made by the Plaintiff upon the Defendant long time that is by the space of a yeare before the day contained in the Count and that at this time the Defendant to defend himselfe hath assaulted the Plaintiff And upon this Evidence the Plaintiff demurred insomuch that this proves an assault made at another day then is contained in the Count and the Defendant by pleading hath confessed an Assault and Battery made upon the Plaintiff the day contained in the Count and now upon Evidence proves his Justification at another day and if this Evidence were sufficient to prove his Justification was the question And if by this pleading the day be made materiall in which it was agreed by the Court and Councell also That if the Defendant had pleaded not guilty the day had not been materiall But the Plaintiffe might have given in Evidence any Battery before the day contained in the Count or after before the action brought and this is sufficient to prove his Declaration but the Parties that is the Plaintiff by his Count and Replication and the Defendant by his Justification have agreed of the day And for that if they may now vary from that it was moved and so it was adjourned Trin. 10. Jac. 1612. in the Common Bench. Laury against Aldred and Edmonds IN Debt against the Defendants as Executors of William Aldred dead upon an Obligation made by him in his life time of 50. l. The case was this one of the Defendants confessed the action the other pleaded that the Testator dyed such a day and that he intending to have letters of Administration caused the Corps of the Testator to be buryed and his goods safely to be preserved and kept and that after administration was granted to him by the Arch-Deacon and that after that one Harnego brought action against him as Administratrix by letters of Administration committed to her by the Commissary of the Bishop being Ordinary there and recovered and averred that this was a true Debt and that he had no goods which were the Testators besides the Goods and Chattels which did not amount to the said Debt and so demanded Judgment if action and upon this the Plaintiff demurred in Law Davis Serjeant argued for the Plaintiff that the Defendant ought to have confessed and avoyded or traverse the point of the action and not conclude Judgement if action See 1 Eliz. Dyer 166. 10. When intermedling made men Executors of their owne wrong that is when he meddles without any colour of title or authority as receiving Debts and disposing the goods to his owne use But if a man administer about the Funeralls or be made a Coadjutor or Overseer this shall not make him Executor of his own wrong or by reason of a Will which is after disproved by probate of one Letter and in these cases if he be charged as Executor he ought to plead speciall matter without that that he administred in other manner and in 20. H. 7. 27. a. 28. b. adjudged in Debt against one as Executor which had Letters ad Colligendum bona definisti only which pleaded the speciall matter without that that he administred any other way and other manner was out of the pleading for he did not administer in any manner with Intermedling by the letters ad colligendum and 9 Ed. 4. 33. b. If an action be brought against an Executor of his owne wrong and after administration is committed to him by the Ordinary this shall not abate the action upon which Books he inferred that the Defendant ought to have traversed that he administred as Executor and insomuch that hee hath pleaded that he hath not so pleaded the plea was not good and also insomuch that he hath pleaded that he hath no goods of the Intestate besides goods which doe not amount c. And this is uncertain and not good for he ought to have shewed what goods he had in certain and the value of them insomuch that they remain as Assets in his hands and so he concluded and prayed Judgment for the Plaintiff Barker Serjeant for the Defendant argued that though that the action in which Harnego recovered was begun after the action now hanging yet insomuch that judgment was first had in that now that shall be preferred otherwise before Judgment for till Judgement the elder action shall be preferred And he conceived that if the Writ was abateable and the Defendants would not abate it by plea that shall not prejudice the Plaintiff which
doth not pass till Livery and Seisin be made Also the intent of the parties is not that they shall pass together for if the intent were otherwise the Law would not devide them as it was adjudged Hillary 15. Eliz. in the Lord Cromwells case where Tenant in Tayl was of a Mannor with the Reversion to his right Heirs and he by his Deed gives and grants the Mannor and the Reversion of that and includes Letter of Attorney within the Deed to make Livery but Livery was not made and yet the Reversion doth not pass for his intent appeares that it should pass by Livery and Seisin and not by grant and also in Androwes case the Advowson appendant to a Mannor shall not pass without inrolment of Bargaine and Sale yet there were words there that that might passe by Grant for this was against their intent otherwise if a man makes a Lease for life or years of a Mannor and grants the Inheritance of the Advowson by the same Deed and so of the case of 23 Eliz. Dyer 374. Lessor deviseth Grants and to farm lets the Mannor and the Trees and they passe joyntly and the Reason is insomuch that it is but a Joynt sentence and not severall as it is here also he intended that the life of the Lessee for life is not averred and for that he shall be intended to be dead and for that it is a severall grant of the Trees of the Free-hold for the Interest of them is setled in his Executors for if he had made Sale of them before that the Copy-holder had cut them down then that had not been forfeiture see 5. H. 7. 15 Ed. 4. 14 Eliz. Dyer And then the Case is this Tenant for anothers life of a Mannor makes a Lease for yeares of the Free-hold of which an Estranger hath a Copy-hold Estate for life in Esse Lessee dies and he conceived that the Copy-holder shall not be an occupant for it ought to be Vacua Possessio and this was the reason of the judgment in Adams Case in 18 Eliz. Where a man makes a long Lease for years and after intending to avoyd this Lease makes a Lease to another old man for anothers life to the intent that the Lessee for yeares should be occupant when the old Lessee died and so drowned his Tearm and after the Lessee died and resolved that the Lessee for years shall not be an occupant insomuch that there was not Vacua Possessio and for this it seems to him that if Lessee for anothers life makes a Lease for years and dyes that the Lessee for yeares shall not be an occupant notwithstanding that he made speciall claim and that for the reason aforesaid but he agreed that a Lessee for anothers life makes a Lease at will and dies there the Lessee at Will shall be an Occupant insomuch that his Estate is determined and yet there is not Vacua Possessio according to 38 H. 6. 27. But he did not say there should be an occupant in these cases but cyted Bracton fol. 8. that if the Sea leave an Island in the midst of that the King shall have it and not Occupanti conceditur and so he concluded that the Plaintiff shall be barred and that Judgment shall be entred for the Defendant which was done accordingly and it was afterwards agreed upon motion in this case whether it would not make difference if the Trees were cut by the Copy-holder before that he hath made his nomination or not notwithstanding it was objected that when he hath made his nomination then he was only bare Tenant for life and the Priviledge executed and he in Remainder was also Tenant for life only for he cannot nominate till he comes to be Tenant in possession but this notwithstanding insomuch that they had power to make nomination that is the first Tenant again if the second died in his life time and the second if the first died in his life time and so the Peiviledge continues all the Justices continued of their opinions and according to that Judgment was entred for the Defendant and that the Plaintiff should be barred and should take nothing by his Writ Trinity 8. Jacobi 1610. in the Kings Bench. The Lord Rich against Franke. THE Lord Rich brought an action of Debt against Franke Administrator of one Franke and this was for a rent reserved upon a Lease for yeares made to the Intestate and the Action was brought in the Debet and Detinet for rent due in the time of the Administrator and verdict for the Plaintiff and after moved in Arrest of Judgement by the Councell of the Defendant that this Action ought to be brought in the Detinet only and not in the Debet and Detinet and Chibborn of Lincolnes Inne conceived that the Action was well brought in the Debet and Detinet and to that he sayd that Hargraves case 5 Coke is so reported to be adjudged but he saith that he hath heard the councell of the other part insisted upon that that this Judgment was reversed and for that he would under favour of the Court speake to that And hee conceived that the Action so brought is well brought for three Reasons The first shall be drawn from the nature of the Duty and to that the Case rests upon this doubt that is if the Administrator is now charged for this Rent as upon his own duty or as Administrator and it seems to him not as Administrator but as upon his own duty for he saith that it is not Debt nor duty till the day of payment as Littleton takes the diversity in his Chapter of Release between Debt upon an obligation and a Rent and the day not being incurred in time of the Intestate this cannot be his duty therefore that ought to be duty in the Administrator and to the cases of 19 H. 8. 8. Where the Executor of a Lessee for twenty years which had made a Lease for ten years rendring Rent brought action of Debt against the Lessee for ten years for rent incurred in the time of the Executor and this is in the Detinet only and the Case of 20 H. 6. 4. Where an Executor brings an action of Debt upon Arrerages of Account of an Assignement of Auditors by themselves in the Detinet only and he sayd that in these Actions the Executors were Plaintiffs and in all actions brought by Executors where they are Plaintiffs and the thing recovered shall be Asset the Action shall be brought in the Detinet but in our case they are Defendants and so the diversity and to the Objection that may be made to this Contract out of which this duty grows and arises it was made by the Intestate and not by the Administrator himself and so this is a duty upon the first Privity of the contract he answered that there is great difference when a thing comes due by the Contract of the Testator alone and ought to be payed in his time in
against three Executors two of them are out lawed and the third pleads and Verdict against him and it was resolved that the Judgement shall be against all by the Statute of 9. Ed. 3. for they all are but one Executor and the Cost shall be against him which pleades if the others confesse or suffer Judgement by default And there shall be but one Judgement and not diverse see 17 Ed. 3. 45. b. 11 H. 6. Upon a Venire Facias awarded the Sheriff returnes but 21. and the Habeas Corpora was against 21. only and this was also returned and upon that ten appeared and upon this Tales was awarded and triall had and but ten of the principall Pannell sworne And this was Error but if twelve of the principall Pannell had appeared and served it seemes that it shall not be error for so it was resolved in Graduers case where twenty three were returned but twelve appeared and tryed the Issue and this was resolved to be good and no error Michaelmasse 7 Jacobi 1609. In the common Bench. Buckmer against Sawyer A Man seised of Land in Gaelvelkind hath Issue three Daughters that is A. B. and C. deviseth all his Land to A. in tayl the remainder of one halfe to B. in tayl the remainder of the other halfe to C. in tayl and if B. died without Issue the remainder of her Moytie to C. and her Heires and if C. died without Issue the remainder of her Moytie to B. and her Heires the Devisor dies A. and B. dies And the question was if C. shall have a Formedon in remainder only or severall Formedons for this Land And it seemed to all the Justices that one Formedon lieth well for all for that that it was by one selfe same conveiance though that the Estate come by severall deaths and this Action was to be brought by the Heire of C. after the death of C. See the three and four Phil. and Mary Dyer Note that after appearance of a Jury and after that divers of them were sworn others were challenged so that it could not be taken by reason of default of Jurors But a new Distringas awarded and at the day of the returne of that these which were sworn before appeared and then were challenged But no challenge shall be allowed for that that they were sworn before if it be not of after time to the first appearance Michaelmasse 7. Jacobi 1609 In the Common Bench. Baylie against Sir Henry Clare BAYLIE against Sir Henry Clare the Writ was of two parts without saying in three parts to be divided And it seemed to Nicholls Serjeant which moved this that it was not good but error But the opinion of the Court was that it was good See 17. Ed. 3. 44. 19. Ed. 3 breife 244. 17. Assise with this difference that if there are but three parts and two are demanded there it is good without saying in three parts to be devided for when parts are demanded it is intended all the parts but one and that it is only one which remaines see the Register fol. 16. 12. Assise And it was adjudged in the Kings Bench in the case of one Jordan that demand of two parts where there are but three parts is good see 39. H. 6. Salford against Hurlston in Formedon which demanded two parts where there is but three and so of three parts where there is but four it is good without saying in three or four parts to be divided But if a man grant his part this shall be intended the halfe for Appellatio partis dimidium partis contenetur and a Writ of Covenant ought to be of two parts without saying in three parts to be divided for so is the forme and if in such case in three parts to be divided be incerted the Writ shall abate see Thelwell in his digest of Writs 146. and by Coke if a man bring Ejectione Firme for ten Acres and by evidence it appeares that he hath but the halfe Ex vigore Juris it shall not be good but he said he would submit his opinion to the Judgement of ancient Judges of the Law which have often time used the contrary Note that the Husband may avoid his Deed that he hath Sealed by the duresse of Imprisonment of his Wife or Son But not of his Servant and so Mayor and Commonalty may avoid a Deed sealed by duresse of Imprisonment of the Mayor for it is Idemptity of person between the Husband and the Wife See 21. Ed. 4. and 7. Ed. 4. A man may avoid Seâ—sin for payment of Rent by coersion of distresse but not his Deed. Michaelmasse 7. Jacobi 1609. In the Common Bench. Payn and Mutton IN an Action upon the case by Payne against Mutton the Plaintif counts that the Defendant called him Sorcerer and Inchantor And agreed by all the Justices that Action doth not lie for Sorcerer and Inchantor are those which deale with charmes or turning of Bookes as Virgill saith Carminibus Circes socios mutavit ulissis which is intended Charmes and Inchantments and Conjuration is of Con et nico that is to compell the Divell to appeare as it seemes to them against his will but which is that to which the Devill appeares voluntarily and that is a more greater offence then Sorcery or Inchantment which was adjudged that Action doth not lie for calling a man Witch and said that he bewitched his Weare that he could not take any Fishes Dodridge the Kings Serjeant saith that an Action lieth for calling a woman gouty pockye Whore and said that the Pox had eaten the bottome of her Belly out and so it was adjudged that it lieth well for these words get thee home to thy pokey Wife the Pox hath eaten off her Nose But for the Pox generally Action doth not lie But if he saiâ—h that he was laid of the Pox then Action well lieth for then it shall be intended the great Pox. Note that in Prohibition and Replevin the Defendant may have nisi prius by Proviso without default of the Defendant for he himselfe is re vera Defendant and there are two Actors that is the Plaintiff and Defendant But the Court appointed that Presidents should be searched the Plaintiff is not bound to prosecute Cum Effectu in this Court as he is in the Kings Bench And it was agreed that the manner of Pleading was agreement as for Returno Habendo in the Replevin and Pro consultatione habenda in the Prohibition Michaelmas 7. Jacobi 1609. In the Common Bench Miller and Francis MYLLER Plaintiff in Replevin against Thomas Francis the case was Richard Francis was seised of Land held in Socage and deviseth that to John his eldest Son for a hundred yeares the Remainder to Thomas his second Sonn for his life and made his four other youngest Sonns his Executors and after made a Feoffment to the sayd uses the Remainder to the sayd John his eldest Son in tayl
the Arbitrator awards that one party shall enter into Bond to another for injoying of certain Lands and doth not say in what Sum and adjudged void for the uncertainty and so in this case by which c. But it was answered and resolved that the Arbitrement was good And to the first objection it was resolved and agreed that every award ought to have respect to both parties if it be not a matter which concernes one party only and neither recompence nor acquittall due to the other party in which case the award shall be good And it was resolved in the principall case that the award was made of both parties for one was to have money and the other though there was no expresse mention that the other should be discharged of his Assumpsit yet the award was a good discharge in Law and may be pleaded in Bar upon an Action brought upon the Assumpsit and so it was for both parties And to the second objection it was agreed that where submission is with Ita quod c. as above that there the Arbitrators ought to make arbitrement of all the variances and controversies referred to their arbitrement and if they do make no arbitrement of all the matters of which the submission is made the award is void but if the submission be generall as of all matters in variance or controversie between them There if the Arbitrator makes his award of all matters which are known to him the award shall be good As my Lord Coke conceived though that there are other matters in variance of which the Arbitrator hath no notice as if divers Creditors sue a-commission upon the statute of Barkrupts and an another person to whome the Bankrupt was indebted doth not come in as a Creditor nor give notice to the Commissioners that the Bankrupt was indebted to him he shall not take benefit of the commission for the Commissioners cannot releive those Creditors of which they have no notice as it appeares by the case of Bankrupts in 2. Coke And to the third objection it was answered and resolved that the award was good notwithstanding that no place be expressed where the money shall be paid for in Law that ought to have resonable construction and the party ought to have reasonable time for the payment of that but Foster conceived that it is not good for it seemed to him that if the award shall be good that the Obligation of submission shall be immediatly forfeyted for that there was neither time nor place where the money should be payd but this was answered with the Bookes of 3. H. 7. 16. Ed. 4. Where it is said that if an Arbitrator award that one party shall pay such a sum of money at such a day and keeps the award in his Pocket till such a day be past that yet the Obligation shall not be forfeyted And so it was resolved and adjudged by all the other Justices that the award was good and Judgement was entred accordingly Hillary 7. Jacobi 1609. In the Common Bench. Foster against Jackson RICHARD Foster Plaintiff in Scire Facias against Anno Jackson and Myles Jackson Executors of Thomas Jackson upon Judgement had against the said Thomas in an Action of Debt The Defendants pleades that the said Thomas Jackson the Testator was taken upon a Capias ad Satisfaciendum awarded upon the sayd Judgement and in execution for the sayd Debt by force of the said Capias and there died in execution and so demands Judgement c. And the sole question was if the said Testator being in execution for the said Debt by force of the said Capias and there dies if this be satisfaction of the Debt or not And Dodridge the Kings Serjeant which argued for the Plaintiff in the sayd Scire Facias conceived that it is no satisfaction but that notwithstanding the Debt remaines for the words of the Writ are Capias ad satisfaciendum and all others Executions as Fire Facias and Eligit are satisfactory But the Capias is but a restraint of his liberty till he hath satisfied the Debt and for that it is no plenary satisfaction but only restraint of his liberty which the Law more respects then Goods or Lands and for that Custodia ought to be Salva stricta So by this the party may be Inforced to pay his Debt Salva to the party so that by this the party may be safely detained till he hath satisfied the Debt and Stricta to the King so that by this Justice may be satisfied and for that Bracton saith that it is only to compell the party to make satisfaction And it is resolved in the 33. H. 6. 47. That it is no satisfaction but that the Body should remain as a Pledge till satisfaction a were made or as return Irreplevisable and yet neither the one nor the other are satisfaction And the words of the Writ are Capias ad satisfaciendum the party but if he will satisfie then there is no reason that the Defendant shall be Imprisoned by the Writ But if he will not pay then he shall continue in Prison Quousque satisfecerit by which it appeares that the Imprisonment is no satisfaction and it appeares also by the Register and Fitz. Na. Bre. 246. b That if a man recover Damages of Trespasse before the Justices of Oyer and Terminer and hath the party in execution by force of this Judgement now if the parry which is in execution dies in Prison he which recovered may sue Certiorari to the Justices to remove this Record into the Kings Bench that the Justices there may make upon that Record as the Law will in such case And it seemes by this that the party shall have execution by Elegit or by Fieri Facias for it is not reasonable as it is there sayd that the death of him which died in Prison shall be satisfaction to the party which recovered but Fitzh here saith Tamen quere for he doubted of that but in the Register there is a speciall Writ of Certiorari to this purpose that is to remove the Record into the Kings Bench so that the Justices may do there upon that as the Law will and if the Law will not allow the party to have new execution it were in vain to have such Certiorari for other course cannot be taken and the end of every suit is to have payment and so is the Judgement that the Plaintiff should recover his Debt and so is the Writ and the count and the Capias also and to the end of Justices in Suum cuique tribuere And the party hath not any of these ends if the death of the Defendant in prison shall be satisfaction and in the 47. Ed. 3. Fitz. execution 41. Persey said that if in Trespasse the Plaintiff recover and the Defendant is taken for the Kings Fyne if he pray that the Defendant continue in Prison till he have made agreement with him perchance he shall not
47 Edw. 3. 17 Edw. 4. and 21 H. 7. that have been remembred to the contrary is only that it is reason that the Plaintiff should have the same process which was at the Common Law and there was not any such processe as Capias in debt at the Common Law and 21 H. 7. may be understood that the Elegit was not returned and so no record of that And 50 Edw. 3. a man may recover in Debt and pray Elegit and after brings Debt upon the Record but it doth not lye And he agreed to the Book of 23 H. 6. For there the Defendant was bound in an Obligation to make satisfaction of Debt and hee dyed in Prison and this cannot be satisfaction according to the Condition And in the Case of Fitz. Nat. Brev. the same doubt of that and this was the more strong case then the case at the Barr and if he doubted of that is the cause that he doubts also And cyted Williams and Cuttis case Rot. 88. in the point where the reason of the Judgment was for that that the Plaintiff had his plain and full satisfaction and saith that it was apparent difference between that and Blunfields case for there was 2 Defendants and here if one dyes there shall be no satisfaction and so these reconciled And so if a man be taken upon a Statute Merchant and dyes in execution that shall not be satisfaction for this is speciall processe given by statutes And 14 H. 7. 1. If a man being in Execution escape he shall not be taken againe and in the 14 H. 7. in debt upon an Obligation Capias profine was awarded and the Defendant taken by that And the Plaintiff prayed that he might be in Execution for his debt also and could not for that he had sued Fierifacias and it doth not appear if the Sheriff have that executed or not And so he concluded that the Judgment should not be revived by the Scire facias against the Executors and that Judgment shall be given for the Defendants in the Scire facias Walmsley Justice accordingly He specially observed the forme of the Writ which suggests quod executio adhuc restat facienda c. And to that the Defendants in the Scire facias plead that Capiás was awarded at the suit of the Plaintiff and upon that the Defendant was taken in execution and there dyed by which it appears that the words and suggestion of the Writ was answered directly and upon that the strongly relyed and then said that there were 3 ways to have Execution that is by Fieri facias Capias and Elegit And there is a speciall order to be observed in the suing of that for a man may have Fieri ficias and if the Defendant have not goods may have Elegit or Capias But if he make his Flection to have Capias he cannot have Fieri facias nor Elegit or if he sue Elegit he cannot have a Fieri facias nor Capias In 33 H. 6. and 44 Edw. 3. which have been cyted the Plaintiff sues Elegit and after that would have sued Capias supposing that he had not accepted the Elegit but of the other part it was said that the Sheriff had made Execution of it the which he could not contradict it And if the Plaintiff had Fieri facias and goods delivered to him in Execution and the Writ returned he shall not have a second Execution and so if Elegit executed and returned 14 H. 7. 15 H. 7. and said that Executions are tickle things for if the party escape he delivers himselfe out of Execution and the Plaintiff shall not have other Execution against him for that he hath had one Execution 2 Edw. 4. And so if a man sues a Writ of Priviledg out of Parliament and by that is delivered out of Execution he shall not be taken again And so if a man be delivered upon a Writ of Error for when the Party hath made his Election to take processe against the body it was his folly that he made such Election for though that death be the act of God yet for that that statutum est omnibus semel mori and for that God hath done no wrong for he hath but performed his Eternall Decree and for that it is not the act of God only but the folly of the party to make such Election and the Book of 47 Edw. 3. by Percy is but his opinion and more other Books are against that and 〈◊〉 H. 6. Danby and Prisot are against Lacon and though that the death of the Party in Execution is no satisfaction in rei veritate yet in Law it is satisfaction for that that the party hath no other remedy the Writ in the Register is certiorari ad faciendum in omnia singula que secundum legem consuetudinem fieri c. And there is not any Law nor Custome to warrant any such Course and here is not any other proceedings upon it But if he may have a Writ of Scire facias ostensurus quare satisfactionem habere non debet then it may be that the Defendant's ought to give another answer but for that that there is not any such Writ it seems that Judgment shall be given for the Defendants Coke chief Justice seemed the contrary and he agreed with Foster and he said that it is vexata et spinosa questio for the Books vary and great arguments have been made of both parts There are three things considerable 1. Reasons 2. Authorities 3. Answers of Objections And for the Reasons First he considered in whom the default is for which the Plaintiff shall lose his Debt 2. That the Debt remains after the body is taken in Execution 3. If the body taken in Execution be satisfaction 4. If the dying in Execution be a discharge 5. The Mischiefs if so they shall be And to the Objections First Escape which is the wrong and act of the Party it is no satisfaction nor discharge and here is the act of God and election of the party 2. Execution by Elegit If Lands be extended upon that this is no satisfaction And so if he be delivered by a Writ of Error and so in this case And for the first the fault was in Jackeson for he did not keep his day in the Condition and upon this was sued then he pleaded a false plea and upon that Judgement was given against him in all which actions the default was in the Defendant and no default in the Plaintiff for he took the Body which is the visible execution not in satisfaction but to satisfie and the Defendants have not pleaded fully administred but confesse that they have Assets and there is more reason that the Plaintiff shall be satisfied then the Executors keep the goods to their own use for it is Summa Injustitia nocentem habere totum lucrum innocentem totum damnum Second reason was that it is no satisfaction for the Defendant to dye
22 Assise 24. 48 Ed. 3. 8. Register 47. And in case that one common person hath any Office which he cannot exercise by a Deputy yet if he be imployed in the Kings service as if he be made Ambassador out of the Realm or other such imployment he may during his absence make a Deputy and this shal not be forfeiture of his Office and an Earl in ancient time was not only a Councellour of the King but by his Degree was Prefectus sive prepositus commitatus as it appears by Cambden 106 107. Comes prefectus Satrapas which is Prepositus comitatus and was in place of the Sherif at this day and when that he was Sherif though that he had the custody of the county committed unto him which was a great trust yet then by the Common Law he might make an under Sherif which was but a Deputy the like Holinsheads Chronicle 463. Amongst the customes of the Exchequer he called the under Sheriff Senescallus which agreed with the Definition before for he held the place of Sherif himself and by the statute of Westminster 8. chapt 39. It is sayd that Vice comes est viccarius commitatus and if a Barony discend upon the Sheriff yet he shall continue Sheriff 13. Eliz Dyer and Britton 43. If a Rybaud strike a Baron or a Knight he shall loose his Land And Tenant by Knights service may execute it by Deputy 7. Ed. 3. Littleton And if it be so in the case of a Sheriff which hath the County committed to him that he may make a Deputy by the Common Law upon that he inferred that the Steward which hath but the Mannors of the King committed to him that he may make a Deputy And also he said that the words in the last clause that is Volentes precipentes that the Officers and the Subjects should be attendant expoundes and declares the intent of the Queen for the words are Omnibus premisses and the Grant of the Office of the Stewardship is one of the premisses and so he concluded upon these reasons that Judgement shall be given for the Plaintiff and that the Grant was good and the Action wel maintainable And oâ— this opinion were Warburton and Foster Justices And Judgement was given accordingly this Trinity Tearm 8. Jacobi And Coke cheife Justice remembred a Report made by him and Popham cheife Justice of England upon reference made to them that this Patent was good and that the Earle of Rutland might exercise this Office by Deputation and he conceived that there were other words in the Patent which were found by the Jury that the said Earle should have the said Office Cum omnibus Juribus Jurisdictionibus c. as full c. as any other Patent hath been had and withall the Appurtenances and it seemed that a former Patentee had power by expresse words to execute that by a Deputy and he conceived though these words Adeo plene c do not inlarge the Estate yet this inlargeth the Jurisdiction of the Officer as in 43. Ed. 3. 22. Grant is made by the King of a Mannor to which an advowson is appendant Adeo plene tam amplis modo forma c. And these words past the advowson without naming that and he said it was adjudged Hillary 40. Eliz. in Ameridithes case where the case was the Queen granted a Mannor Adeo plene intigre in tam amplis modo forma as the Countesse of Shrewshury or any other had the same Manno r and Queen Kathrin had the same Mannor and diverse liberties with it of great value during her life and adjudged that these liberties should passe also by this Patent by these words and so in the principall case if the former Patent had been found also by the Jury and so was the opinion of Popham and him and was certified accordingly FINIS A Table of the Second Part. ARch-Bishops Jurisdiction 1 2. 28. Admiralties Jurisdiction 10 11. 13 16 17. 26. 29. 31. 37. Arbitrement satisfaction what 31. 131. Assumpsit 40 41. 273. Arrianisme one committed for it 41. Assets 47. Almony 36. Apurtenant what shall be said 53 Action sur Case by a Commoner for words 55. 84. 100. 119. 122. Avowry the whole plea 62 63. 102 Agreement what 72 Account 76 Audita Querela 81. 83. 168 Atturnment good by one under age where and why 84 Award void 100 Age not allowed in Dower 118 Administration repealable 119 Accord with satisfaction good plea where where not 131 Attorney ought to finde Baile in an Originall not Bill 134 Action sur Assumpsit 137 Assuâ—psit against an Executor where maintainable 138 Assets in Formedon what 138 Attachment 144. 168 Assent to a Legatee 173 Ayd prayer 191 Attachment for contempt of the Court 216 Accessary null unlesse there is Principall 220 Assignment of an estate suspended 225 Assise of novel Disseisin 229 Abatment of brief per entry 231 232 Abatement de facto and by plea differ in what 235 Agreement and Arbitrement good pleas where 132 Agreement by word to keepe backe tythes 17 Admiralls Commission for measuring of Corne 29 Administration during minority of c. 83 Atturney brings Debt for Trees 99. Arbitrement 130. 131. Arrest of Judgment 167. Acts what to make an Executor de seu tort 184. Attachment of Priviledge for an Estate against the Marshall c. 266. Assise where it may lye sans view 268. Assise the Recognitors challenged ibid Ajournment of the Tearm 278. Annuity or Writ of Covenant where 273. Arbitrement submission and revocation 290. Approvement of Common 297. Account 308. Award submission 309. Arbitrement 310 Arbitrement who it binds 323. Assise del Office 328. B BIshop not displaceable 7. Baron alone cannot sue for not setting forth Tithes without the feme proprietory 9 Ballast granted to Trinity House a Monopoly 13. Baron and Feme joyn where 66. Baron Judgment against an Executor 83 Baron how chargeable pur sa feme 92. 93. 95. Bar in trespass 121. By-Laws whom they bind 180. To what extended 258. Baron and feme take by intirity where 226. Barwick whether part of England or Scotland 270. Bayle 293 Banckrupt actionable 299. C CHase an action not to be divided 56 Cui in vita of Copy-hold 79. Custome for pound breach 90. Common Recovery 16. Copiholder shall hold charged where 208. Confirmation to a copiholder destroys common 209 210. Consultation after it no Prohibition grantable upon the same Libell 247. Cape grand Petit 253 Cause of a commitment traversable 266. Count in trespass after the teste del Breife 273. Covenant to pay Rent 273 Continuance Ibidem Chellenge 275 Customes of London argued by the Justices 284. 285. 286. Certiorari 312. Capias ad satisfaciendum no satisfactory execution 312. 313. 314. 315. 316. Copy-hold at common Law 44. Creditor may sue both heireand Executor 97. Court of Equity not proper after Judgment 97. Copyhold intayled 121. Covenants direct and collaterall how they differ 136.
Condition repugnant voyd 138. Condition in rei in persona diff 139. Covenant where it lyeth 160 Covenant express and implyed or in Law how they differ 162. Copihold customes 197. Covenant P. Administrator 207. Covenant joynt surviveth ibidem 208. Church-Wardens not interessed in church Goods 210 Consultation awarded 216. Challenge for favour 229. Challenge to the Array for action against the Sheriff 230 Consultation awarded 26 Citation for defamation 28. Charter part beyond sea where to be sued 34. Citation out of the Deocess 34 Consultation granted 26. Clerk of a Parish who shall nominate him 38. Covenant destroyed 56. Common Recovery 75. Custome 76. Incertain voyd 85 Voyd for inconveniency 86 Copyhold what Authority 77 Its nature and reason 79 It is within the statutes which speaketh of Lands and Temements 79. 80 It s severall customes 86 87 Consuetudo sola quia non totaliter disallowed 86 Customes unreasonable voyd 87 Commission to the councell in Wales 119 Caveat to a Bishop 119 Coram non Judice where 127 Commoner cannot have an Action of Trespass 147 Chase in possibility not grantable 173 Cinque Ports the custome of taking the Body of a man in Withernam not good 195 196 197 Common of a Copy-holder destroyed by confirmation 211 Corrody granted 211 Common Law where voyd 38 Clam delinquens c. 288 Covenant express doth qualifie covenant in Law where 212 213 Covenant in Law not binding Executors where 214 Copihold custome 12 15 Custome ought to be reasonable 217. Custome in the Isle of Man 217 Custome of London 218 Custome of Hallifax 218 Copyhold custome for a married-wife a Devise to her Husband 218 Court Baron cannot inquire of Felonies 219 Condition entire not to be apportioned 227 Challenge principal what is what is not 240 Cestercians their Priviledge 20 Contra formam collationis to who given 22 Contract made in the straites of Malico 30 Custome for thithing 30 Cpoihold anciently villinage 44 Corporation cannot be limited to a county 244 Certificate of a Bishop 301 Charta de foresta 325 D DEfamation Sint ex officio 28 Debt Sur Judgement 39 Debt Sur Award 48 Sur Judgement 39 40 Damages in dower 41 Devise of lands how taken 74 That executors shall sell c. 100 Devastavit where 81 83 Damages uncertain therefore a fine certain for them voyd 86 Debt Sur bill P. memorand 97 Debt Pur fees P. attorney 99 Devise of lands in cap. and the stat of 32 and 34 H. 8 expounded 105 106 107 Deed without date 107 Dower 118 execution in it 141 Debt against an Administrator 118 Dower ass by the Sheriff without jurors good 141 Damnum five injuria 148 Debt against an administrator 153 Debt sur oblig pur Pf. cove 167 176 177 Debt 177 178 pur penalty of a by-law 179 Demurrer sur evidence 183 Ddvastavit 185 Debet detinet for Rent against an administrator 202 203 Damages found intire where it is error 272 Defendant entred after the habere fac poss executed 216 Dower recompence what 132 Delapidation suit for it 27 Dreprivation for drunkenesse 37 Debt P. executor 283 against executors 183 Demurrer in ejectione firme 128 Discontinuance 142 Dower of tyth wooll 143 Devise of a lease 172 Devise to a corporation 246 Debt against an administrator during minolity 248 Debt against executors 274 Duress where 276 Distress a quasi action 289 Devise enures to bargain and sale where 291 Devise of a Tearm 308 E Ejectione firme 40 Shall not abate if the Tearm end 131 Estrepment 401 68 Election by an Executor 51 Executor refuseth when too late 58 when good ibid Ejectione firme 74 102 103 Accord with satisfaction good 130 131 Elegit 97 sur testatum 208 Extent sur stat 122 Executrix during nonage 144 Ejectione firme 168 172 168 223 Election by an executor of a legacy 173 Executor de seu tort who 184 Executor de seu tort 184 185 Executors two joyntly sued one confesse the action good 286 Elegit sur testatum where it is necessary 207 Ejectione firme Judgement in it 216 Estoppell 219 Escheate 220 Election implicit 220 221 Error sur judgement in assise 230 Entry to abate an assise what what not 235 236 Ejectione firme and a good bar where 133 Executor sued and also the heire 67 Executrix during nonage 144 Expresse covenant qualifies covenantin law 212 213 Exposition of usage 222 Estate increasing sur condition when it ought to vest or not at all 251 Error in ve fa. and hab corp 274 Essoyn day is a day in term 279 Entire services casuall 293 295 Error in prolcamation 300 Error in writ of dower 300 Common of Estovers 329 F FOrm edon lieth for copy-hold lands intayted 43 44 Forgery by Scrivener who lost his eares for it 50 Franchise the lord shal answer for his baily 50 Feme covert what she may do sans Boron 71. how punishable 9495 Fealty seisin of ser au 99 Fine amended where 101 Feoffment to a son for valuable consideration 102 Forstaller regrator and ingrosser who 109 False imprisonment 124 Feme covert how she is bound by joyning with her husb 140 141 142 Fine where it binds 154 155 Fradulent conveyances within the stat 13 Eliz. 188 Fraude what by the statute 27 Eliz 190 Fyling a writ not materiall where 216 Formedon in remainder 274 Frank almoigne gift to the Templers 21 Formedon in discender 79 Fyne and ransome 113 False imprisonment action for it 255 Fyne error in it 270 Fyne by deb potest of an infant 271 Freedome of London how many ways obtained 286 287 Forfeiture of office of the Chirographer 300 G GRants how construed 193 Grant of common extinct 222 Grantee of a reversion of what conditions he may take advantage of by the common law of what by statute 32 H. 8. 228 Generall pardon 37 Gravi queâ—ela 72 Grant le roy when not good 252 Grant le roy incorporate a burough 292 Grant of a reversion 299 Grant del roy of alnage 301 302 303 304 Grant del portership 330 Grant Pro concilio impendendo 336 Grant P. Letters Patents 333 H HAb corp granted to a brâ—wnist counted 3 Heretick his censure 4 High commissioners their jurisdiction 4 5 14 15 16 18 19 Harriot unreasonable 89 Hab. fac poss the Shereffs officers poss the plaintiff refuseth 168 Harriot service 187 Habere fa. possessionem in ejectione firme 216 Hab. corpus and prohibition to the high commissioners 18 Hospitall of St. John of Hierusalem 21 Hab. corpus granted 36 Husband and wife where they shall joyn 66 67 Hab. corpus and prohibition 271 Harriot an entire service 294 ISsue imperfect 47 Justification for calling one perjured 49 Judgment in Debt 76 preferred before a statute c. 81 Innuendo shall not help the Action 84 Jus accrescendi where it holds not 99 Information sur le statute 5 Ed. 6. Chapt. 14 108 109 110 Jurors non concluded by Pleas of the parties 150 Information for