of forty pounds And adjudged that no action lay vide Coke lib 10 fol 130. in Osbornes Case Thou art an arrant Knave a Cousener and a Traytor Action lies only for the word Traytor and yet all being spoken at one time aggravate and Damages shall be intended to be given only for these words which are actionable vide ut supra fol 131. if the words be alledged as spoken at severall times and as severall causes of actions there if the Damages be entire the Plaintiff shall not have Iudgment if any of the words do not bear action Stanley and Buddens case And other cases were cited that Cousenage is not actionable And Mich 40 Eliz Stanley and Buddens or Boswels case there an Attorney brought an action of the case for these words Thou art a cousening Knave and gettest thy living by Extortion and didst cousen one Pigeon in a Bill of Costs of ten pounds Adjudged that the last words were actionable This case was adjudged for the Plaintiff but I was absent in Chancery and heard not their reasons for it was doubtfull Hil. 17 Jac. Empson versus Bathurst Debt FRancis Empson brought an action of Debt upon an Obligation against George Bathurst the Defendant pleaded the Statute of 23 H. 6. That an Obligation taken Colore officii of any one in their Custody Obligation voided by the Statute 23 H. 8. with any other Condition then for appearance at the day mentioned in the Processe shall be void And shewed that an Extent issued out of the Chancery to extend the Land of Robert Leigh upon a Statute Staple of twelve thousand pounds in which he was obliged to the Plaintiff And that Anthony Thirrold was Sheriff and Charles Empson was under Sheriff and shewn an Extent of the Land returned and before any Liberate it was agreed that the Defendant should pay to the under Sheriff two and thirty pounds ten shillings and that he should be bound to the Plaintiff his Brother for the security therof to the use of the said Charles and therupon he entred into the said Obligation which by the said Statute is void the Plaintiff replyed and shewed that by the execution of the Extent he agreed to pay him the said two and thirty pounds ten shilling and pleaded the Statute 29 Eliz cap. 4. wherupon the Defendant demurred And it was adjudged against the Plaintiff Extortion for this Obligation is extortion and Colore officii and void by the Commen Law Extortion is when any one Colore officii extorquet feodum non debitum plus quam debitum aut ante quam debitum vide Dive and Maringhams case an Obligation made by Extortion is against Common Law for it is as Robbery vide Coke lib 10. fol 100. Dyer 144. And in this case the opinion of the Court was that no Fee is due to the Sheriff by the Statute of 29 Eliz. cap 4. because the Fee is not due untill execution Copulative extent and delivered in execution if it were a Statute-Merchant in which is a Liberate included then the Fee is due Also it was agreed that by the Statute the Sheriff ought to have six pence in the pound where the summ exceed a hundred pounds for all and not twelve pence in the pound Mich. 20 Jac. Bullen versus Gervis RObert Bullen brought an action of Debt for 12 l. upon an Obligation against William Gervis Administrator of Owen Godfrey Debt It is no plea for the Administrator to say the Intestate died outlawed Young and Pigot The Defendant pleaded that the Intestate was outlawed at the Suit of Francis Murrell after Iudgment and pleaded it specially and being so Outlawed died and that Outlawry is in full force Iudgment si Action wherupon the Plaintiff demurred 8 E. 4. 6. There by Littleton between Young and Pigot in an action of Debt against Executors it was holden a good plea to say that their Testator was Outlawed for they are charged to the King for the Goods Genny said that the plea amount only to this that they have not any Goods and so answer argumentative And 21 E. 3. 5. By Brian in a Writ of Debt brought against Executors it is a good plea to say that their Testator was Outlawed sans luy intitle 36 H. 6. 27. By Prisot in Debt against one as Executor of Jane the Defendant said that the said Jane was his Wife and demand Iudgment si action and it seems this is no Plea because that a Feme Covert may have many things which the Husband shall not have as Choses in action and she may make Executors if the Baron agree And Prisot said Sir It seems to me that it is no good plea for an Executor to say that his Testator died Outlawed Cansa qua supra Quare cur hona materia Vpon the reading of the Record it seems that it is no plea for it is only by Implication and that may be given in evidence Also the Executor or Administrator may have divers things which are not forfeitable to the King as if the Testator had Mortgaged his Land upon Condition that if the Mortgagee pay not at such a day to him his Executors or his Heirs a hundred pounds that then it shall be lawfull for him or his Heirs to re-enter and after and before the day the Testator is outlawed and makes his Executors and dies and at the day the Mortgagee pay the money to the Executors that is Assets and not forfeited is the King So if Tenant for life of a Rent be outlawed and the Rent arrear and makes his Executors and die this arrearage is due to the Executor and is Assets and not forfeited for the Rent was a Free-hold for which during his life no action of Debt lay and these arrearages recoverable by the Executors are Assets Also if this should be a good plea which is only by Implication he might therby prevent the Plaintiff of his recovery Also though choses in action are by information in the Exchequer recoverable yet if the Executor bring a Scire facias upon the Iudgment he shall recover and shall be accountable to the King therfore and the Debtors of the Intestate though he was outlawed may pay the debts to him and his release is a good discharge to them Also it was agreed that an Executor or an Administrator might bring a Writ for the reversall of the Outlawry and the Outlawry is not a Bar to him Woolley versus Bradwell Trin. 37 Eliz. Rot. 2954. And one case was vouched by Attho which was adjudged upon the like plea in this Court Trin 37 Eliz Rot 2954. Woolley against Bradwell and his Wife Executors of Sir Thomas Mannord and the matter depended a year and was argued and adjudged that it was no plea for it is but by argument and so being Serjeant Hobart said this Argument ought to be infallible also this is the matter and not the form for in this case the Demurrer was generall and the Book of
this Arraingnment the Iudges assistant sate with their heads covered as the ancient use hath been But the Serjeant at Armes was commanded to make Proclamation That the Iudges and all the Lords not being his Peers and all of the Privy Councell should be covered and others not And this was only in relation to the precedent usage and the right which appertain to the Iudges For in Parliament they being called by Writ use to be covered as oft as the Lord Chancellor or Keeper of the Great Seal which is Speaker puts on his Hat But now it is used that they put not on their Caps untill they have been requested by the Lord Speaker And when they are called into the Star Chamber or to Errors in the Exchequer Chamber they set covered with their Caps Pasch 7 Car. Risam versus Goodwin Mich. 5 Car. Rot. 2512. IN a Writ of Scire facias brought by William Risam against John Goodwin and Richard Peat Administrators of Thomas Cammon the Case was such The Court of Common Bench award not execution upon a Judgment given in grand Sessions in Wales The now Plaintiff William Risam recovered against Thomas Cammon a hundred pounds Debt and ten shillings Costs at the Grand Sessions holden at Carmâ—rthen and execution awarded and Nulla bona returned And upon Surmise that the said Thomas Cammon was dead and that the now Defendants had taken Letters of Administration a Scire facias issued against them and Nichil returned and after a Writ of Execution and that afterwards being returned by the Sheriff of the County Nulla bona testatoris a Writ issued to the Sheriff of the County of the Town of Carmarthen who returned Devastavit And because that the now Defendants had not Goods within the said County or within the County of the Town of Carmarthen or Jurisdiction of the Grand Sessions the Plaintiff procured a Certiori to the Justices of the Grand Sessions who certified the Record to the Chancery and by Mittimus it came to the Common Bench with directions Quia executio judicii praedicti adhuc restat faciend Mandant quod at the prosecution of the Plaintiff Vos fieri faciat de more secundum legem consuetudinem regni nostri Angliae fuit faciend Wherupon a Writ of Scire facias was awarded to the Sheriff of Hereford against the said Defendants to which they appeared And after many Imparlances they demurred upon the insufficiency of the Writ of Scire facias And this case was argued by Berkley for the Plaintiff and by Henden for the Defendant And the Cases put by Berkley were F N. B 243. a. b. 39 E. 6. 3 4 Ass in ancient Demesne and for the Damages surmised that he had nothing within ancient Demesne 21 E 3. 49. 21 H 7. 33. 8 Ass 27. 30 H 6 7. 3 H 4. 15. 1 Justitutes 59. in Frankalmoigne That Wales is parcel of England 1 E 3. Jurisdiction 45. 22 H 6. 58. 47. E 3. 6. 3. E 3. Quare Impedit 38. 35 H 5. 30. 19 H 6. 12. 52. vide the Statute of 34 H 8. for Wales and Writs of Error Henden argued to the contrary and his first reason was 1. That this Court of the great Sessions is an inferiour Court 2. The Record it self comes not but a Transcript 3. The Statute of 34 H 8. hath appointed the Execution and that should be pursued 4. This Innovation is perillous and never put in practice And he relyed upon the diversity When Iudgment in a peculiar inferiour Court comes into the Kings Bench or into this Court by Writ of Error and is affirmed then the Superiour supplies it and add strength to the Iudgment But when Iudgment is given in a Court of a Corporation and that is removed by Certiorari and sent by Mittimus that shall not be executed there vide 45 E 3. 25. Formedon in London vide 14 E 3. Tryals 23. 15 E 3. Record 35. New Book of Entries the last case in Writ of Error vide 8 E 3. 10. 26 H 6 8. 3 H 6. 16. 7 H 4. 8. 14 H 4. 25. H 5. 11. And he relyed upon 21 H 7. 35. and the case of 39 H 6. 3 4. and the case of ancient Demesne 7 H 9. 18. 37 H 6. 16. Dyer 369. And upon this Case the Iudges consulted and agreed that the Writ was insufficient And so Iudgment was given against the Plaintiff But it was said that upon this Iudgment so sent to this Court the Plaintiff might bring an action of Debt and so have execution But to make this Court an Instrument to serve an inferiour Court and to extend their Iurisdiction by this way as it were by a Windlace it is not lawfull Hil. 7 Car. Napper versus Sanders Pasch 6 Car. Rot. 1148. IN an Ejectione firmae brought by Robert Napper against Henry Sanders upon a Lease by Deed indented made by John Napper and Elizabeth his Wife and Francis Sanders upon Not guilty pleaged Remainder where it shall be said Contingent the Iury gave a speciall Verdict wherupon the Case was such Margaret Sanders seised in Fee makes a Feoffment to the use of her self for life without impeachment of Wast and after to the use of the Feeoffees for eighty years if one Nicholas Sanders and Elizabeth his Wife should live so long and if the said Elizabeth survive Nicholas her Husband then to the use of the said Elizabeth for life without impeachment of Wast and after the decease of the said Elizabeth to the use of Postumus Sanders Son of the said Nicholas and Elizabeth in tail And for default of such Issue to the use of Elizabeth Wife of the said Iohn Napper and Dorothy Sanders and the said Francis Sanders one of the Lessors and to the Heirs of their bodies remainder to the right Heirs of Margaret the Feoffor And there was a clause in the said Indenture that the intent of the Estate for years to the Feoffees was that the said Elizabeth Sanders might have the profits and not Nicholas her Husband who was a Prodigall Margaret Sanders dies and Dorothy dies without Issue the Feoffee enter Elizabeth Sanders dies Nicholas is yet alive and Posthumus dies without Issue Iohn Napper and his Wife and the said Francis entred and were possessed untill the Defendant as Son and Heir of the said Margaret entred and ousted them Et si super totam Materiam c. And the sole question was whether the remainder in tail to Posthumus and the remainder in tail to Elizabeth and Francis were contingent or executed And it was resolved by all the Court that the remainders were not contingent in the Estate for life which was to come to Elizabeth Sanders the Wife of the said Nicholas but were vested presently And it was agreed that the Estate for life if she survive her Husband was contingent and when that had hapned being by way of Limitation of an use it shall be interposed when the Contingent
Boucher Turner Bolder and one other Turner appear and tender his Law Sir John Boucher and another plead Nil debent and the other was Outlawed and it was said that he ought to have joyned but it was resolved by the Court that they may sever in Bars but ought to joyn in Delatories For otherwise if one which never bargained be joyned in the action he must put his matter upon their pleadings And in Debt upon a joynt Obligation one may plead a Release the other Non est factum vide 48 E 3. 21. and vide Presidents in this case according to this resolution Sabud versus Râ—w â— Trin. 26 Eliz Rot. 821. Trin 26 Eliz Rot 821. Sabud against Robinson Matson and Loughton and Count sur emisset Waston and Loughton pleaded and Non sum informatus by Robinson Sed judicium inde cesset quousque the Issue be tryed and Venire facias awarded and found for the Plaintiff Peâ—iam T.P. H. P I.P. Hil 41 Eliz Rot 455. John Periam and Margaret his wife Executors of John Hart vrought an action of Debt upon Emisset against Thomasin Phelpes Widdow Henry Pittard and John Phelpes John Phelpes was Outlawed and Iudgment against Henry P. by Non sum informat and Thom P. plead Nil debet Fleet and Harrison Venire facias and Iudgment respited quousque c. and after tryall the Plaintiff had Iudgment Hil 13 Jac Rot 841. Fleet brought an action of Debt against Ja Harrison and Isaac Brooke upon Emissent And James H. waged his Law Iudgment against Isaac Brooke by nihil dicit Et quia Conveniens est quod judicium de loquela praedicta unicum sit versus praedictos Isaac Jacobum si contingat ipsum Jacob. de perficiend legem suam praedictam desicere Ideo parcat in judicium inde versus praefatum Isaac reddendum quosque praedictus Jacobus legem praedictam perficeret sive inde desiceret postea praedictus Jacobus perfecit legem suam Ideo consideratum est per Curiam quod praedictus querens nihil capiat per breve suum praedictum sed sit in miserecordia pro falso clamore suo inde quod praedictus Jacobus eat inde sine die And according to this President it was agreed per Curiam that so it ought to be Hil. 12 Jac. Rot. 3007. Reyner versus Waterhouse Ebor. Case JOhn Reyner brought an action upon the case against L Walterhouse Ven. fat de dâ—versis villis and declares that wheras he is and by the space of twenty years past have been an Inhabitant within the Town of Long Leverseidge in the Parish of Burstall And wheras the Inhabitants of Long Leverseidge aforesaid De tempore cujus contrarii memoria hominum c. used to have a common way as well for Foot-men as for Horse-men to go and ride from the said Town of L. to the Parish Church of Burstall aforesaid on Lords daies and Festivall daies and other convenient times to hear Divine Service within the said Church and to carry bodies c. dying in the said Town to the said Church to be interred Modo forma sequent viz c. and shews the way through divers Closes in Long Leverseidge Little Leverseidge and Gomersall and over the Church-yard of the Church of Burstall and from thence unto the Church aforesaid and backward c. and shew one disturbance made by the Defendant by making of a Ditch in one of the Closes in Gomersall the Defendant pleaded Non culpab and found for the Plaintiff and in Arrest of Iudgment it was alledged that the Venire facias fuit de Gomersall tant And the Venire facias was quashed per Curiam and a new one awarded de L.L.G. Burstall Hil. 16 Jac. Bigg versus Malin BIgg brought an action upon the Case against Malin Case as Administrator and counts that whereas the Intestate was indebted to him in ten pounds and the Defendant also was indebted to him in forty shillings they accounted and upon account the Debt being twelve pounds In case upon Assumpsit against Executors it is not necessary to alledge Assets the Defendant being Administrator did assume and promise to pay it Et licet saepius requisitus non solvit And upon Non assumpsit pleaded the Verdict was found for the Plaintiff And by Finch it was moved in Arrest of Iudgment that the Plaintiff had not shewn in this Count sufficient consideration to charge the Defendant because that it doth not appear that the Defendant hath Assets But the Court disallowed that for if that were necessary it ought to be presumed to be found in the Verdict As in the case in consideration that the Plaintiff had sold and delivered to him twenty quarters of good and merchantable Barly the Defendant promise to pay him twenty pound Non Assumpsit the Plaintiff ought to prove the promise and the delivery And as in Debt against Executors upon a simple Contract it shall not need to be alledged that they had Assets to pay Debts by specialties yet good and that ought to be proved But it seemed to be agreed that if an Executor or Administrator which hath not Assets makes promise of payment if it be not mixed with any profit to himself viz. forbearance c there it shall not charge him But by Warburton if an Executor hath fifty pounds Assets and he promise to pay to a Creditor a hundred pounds that shall bind him for all for when he hath Assets for part the Plaintiff hath Iudgment for all and execution only for so much as is found And in this case the Plaintiff had Iudgment Brook versus Groves BRook brought a Quod permittat against Groves and after Imparlance the Defendant demanded a view and ruled by the Court that he might and vide 34 H 6. 9 10. accordant vide 6 E. 4. 1. and the Plea Quare impedit viz. the View was De tenementis predictis which was as well of the Lands to which the Nusance as of the Lands which was the Nusance View And the View in this action is but for fifteen daies Egerton versus Egerton THe Lady Egerton Wife of Sir John Egerton brought a Writ of Dower against Edward Egerton the Tenant at the day of Essoin did not cast any Essoin And the Demandant entred her exception at that time the Writ was not returned and upon motion to the Court for the tenant to be essoined notwithstanding the exception Dower it was resolved that notwithstanding the writ was not returned yet the Tenant might have his Essoin vide 2 E. 4. 11. 21 E. 4. 7 8. 30 H. 6. 1. that an Essoine may be before the Writ be returned and vide 2 H 7. 4. 10 E 4. 4. the Tenant may be Essoined at any day Essoin though the Writ be not returned as wel at the fourth daie as the day of Essoin unlesse the Essoin be challenged viz. an exception
entred and 2 H 7. 4. takes a difference between a reall Action or Originall Suit and a Writ of Execution for upon the first the Essoin lies at any time before the fourth day but in the Writ of Execution the Defendant ought to be essoined at the day of the Essoin And Warburton said that if the Essoin be not cast before the return of the Writ it ought not to be at all for all Writs come in by Post diem Cardinals Case CArdinall an Attorney of this Court of Common Bench Case brought an action upon the case against I. B. for saying of him That he had forged the last Will of I. S. and after Issue upon not guilty it was found for the Plaintiff And moved in Arrest of Iudgment Words that it is not alledged that the Will is supposed to be forged But by the Court that was necessarily implyed and the Plaintiff had Iudgment Pasch 17 Jac. Allaboyter versus Clifford Suff. JOhn Allaboyter brought an action of Debt upon an Obligation against Daniel Clifford which was with a Condition Debt that if the Defendant perform the Award of two Arbitrators of all Actions Demanos c moved between the Plaintiff and Defendant from the beginning of the world untill the day of the date of the Obligation Arbitrement so that the arbitrement be made before the tenth day of December the Defendant plead no such award before the day the Plaintiff reply and shew that the ninth day of December they awarded of and upon the premisses and arbitrated that the Defendant should pay to the Plaintiff fourteen pounds at two severall daies and that upon the last day the Plaintiff should make a generall release to the Defendant and the Defendant likewise to the Plaintiff and alledge a breach for the non payment of the first seven pounds and aver that the fourteen pounds was awarded to the Plaintiff in full satisfaction of all suits quarrells c. depending between the Plaintiff and the Defendant at any time before the Date of the Obligation upon which Plea the Defendant demurred and objected by Attho that the Release which is appointed to be made upon the last day is not appointed but after the payment of the money and also is then to be made of more then is submitted to them But by the Court it is agreed to be a good Award for it shall not be intended that there were more matters arising between them after the date of the Obligation Also if he had made a Release untill the date of the Obligation that were a good performance And this Case had been adjudged before between Nichols and Grandie Nichols and Grandy George Andrews Case VPon a Habeas Corpus one George Andrews was brought to the Bar and upon a long return by the Mayor Aldermen and Sheriffs of London The Custome of London to give security for the payment of the Portions of Orphans and upon refusall the Debters are to be committed of their custom concerning the Orphans of Free-men and for the security of their Portions to be paid to them at the age of 21. years or at the time of their marriage or at such time as is appointed by the Will of their Father or Mother or other Free-men giving to them any Legacy they use to take sufficient security of them which ought to pay them and if they refuse then to commit them to the Counter untill they give security and that their customs were confirmed by Act of Parliament An. 7. R. 2. William Andrews a Free-man having one Son and one Daughter by Emery his Wife died this George Andrews a Free-man being Suitor to the Wife before marriage agreed that if the Wife would marry him she should dispose of two hundred pounds c. and he was bound in a Statute to permit and suffer her to make her Will and dispose therof and after she died and by her Will gave a hundred pounds to her Son and a hundred pounds to her Daughter and the said G.A. agreed to her Will and yet refused to give security to the Chamberlain of London to pay it at the day appointed by the Will pretending that he was bound by Statute to the Friends of the Orphans to perform it And by the Court he was remanded for it is a laudable Custom and the voluntary Obligation upon marriage is not any discharge as to the security by the Custom and we will not disparage the Government of the Citty Trin. 16 Jac. Wolfe versus Heydon London Debt THomas Wolfe Administrator of the Goods and Chattels of John Aldrich durante minore aetate of Edward Aldrich William Aldrich and other Children of the said John not administred by John Talbot Executor of John A or by Robert Armiger late Administrator of the said Goods and Chattels during the minority of the said Children not administred To what intents a man shall be said Executor before he prove the Will brought an action of Debt against Simon Heydon and count upon an Obligation of fifty pounds wherof ten pounds was satisfied to John Aldrich in his life and counts that John Talbot was made his Executor and died and that the money was neither paid unto the said John Aldrich the Testator in his life nor to John Talbot the Executor in his life nor to the said Robert Armiger late Administrator of the Goods and Chattels of the said John Aldrich during the minority of the Children and he produce Letters of Administration and aver that the Children were within the age of seventeen years The Defendant plead in Bar that the said Aldrich before this Writ purchased viz. such a day at S. in the Parish c. made his Will and constituted John Talbot his Executor Qui suscepit onus inde and administred divers Goods as Executor and after viz. such a day the said John Talbot made Benjamin Roblet his Executor and died and Roblet suscepit onus testament and did administer and demand Iudgment si actio c. The Plaintiff reply and confesse that John Aldrich made John Talbot his Executor and that he administred and made Roblet his Executor But he saies that the said John Talbot did not prove the Will of the said John Aldrich according to the Ecclesiasticall Law and that the said Benjamin before that he took the charge of the Testament of John Talbot renounced before the Ordinary to be Executor of the said John Aldrich or to administer any of the Goods which were the Goods of the said Iohn Aldrich or to have any thing to do therwith And therupon the Defendant demurs and Iudgment was given for the Plaintiff And in this case the Court well agrees with the replication for he was Executor before probate to pay Debts and to be sued but not to have an action though that originally the probate was temporall and it is no plea in our Law scil that he did not prove the Will but that he was not
profits have accrued to them or any of them by the making of Allome since the making of the said Indenture wherupon the Plaintiff demur 1. And Iudgment was given for the Plaintiff for it is one good Grant of an Annuity to charge their persons And so of a Grant of an Annuity to be paid out of such Coffers or Bags vide 9 H. 6. Margery Parkers case vide 22 H. 6. 12. 2. Also the limitation is to perceive of the clear gaines and plead it by the Counter-part of the Indenture and that ought not to be but they should have demanded Oyer of the Deed and then either demur or plead that the same Deed was granted over c. 3. It is not averred that no other person received or made any clear gain but only that the Defendant made no clear gain Burglary MEmorand At the Assises holden at Winchester in the last Circuite before the Lord chief Baron Tanfield it being the third Circuite which I went with him It was a question whether one which had a Shop in the dwelling house of another and he which had the Shop work'd therin in the day but never lodged there and yet he had a house out of the Shop to the Street if this Shop be broken in the night and divers Goods stoln out therof if it be Burglary Burglary And the Lord chief Baron and I resolved that it was no Burglary because that by the severance therof by Lease to him which had it as a Shop and his not inhabiting therin it was not any Mansion house or dwelling house ergo no Burglary but ordinary Felony Mich. 15 Jac. Adavis versus Flemming Case AN action of the Case was brought for these words Thou hast forsworn thy self before the Councell in the Marches innuendo in the Marches of Wales in a Suit which I have there and I will sue thee for Perjury Words And after issue of Not guilty pleaded and Verdict for the Plaintiff It was moved in Arrest of Iudgment by Chibborn that the Common Law takes no notice of any such Councels and they are to meddle according to instructions and if it be not warranted therby then no Oath wherupon any remedy And therfore it was adjudged that if one say another is forsworn or perjured in Canterbury Court no action lies for we cannot take any notice of any Court in Canterbury which hath power to administer an Oath But Serjeant Harris said that this Councell of the Marches is established by 27 H 8 cap 32. and have power to examine Witnesses and to administer an Oath and is also mentioned in the Statute 5 Eliz. that Perjury committed before the Councellors of the Marches shall be punished by this Statute And the Court was of opinion that the action well lies for the Councell of Marches without innuendo is sufficient for there is no other Councell of Marches And as the Court take notice of the Court of requests for if one saies another is perjured there it is actionable so of this Court which is established by Statute and concern the King and therof the Iudges ought to take notice Iudgment for the Plaintiff And by Lord Hobart if one saies another is forsworn in the Common place an action lies Mich. 17 Jac. Bayshaw versus Walker Case AN action of the case was brought for saying Thou art a filtching Fellow and didst filtch four pounds from me And after Verdict for the Plaintiff it was moved in Arrest of Iudgment that the words were not actionable And so the Court resolved for the word siltching is dubious and may be by Cousenage by shifting by deceit and is not Felony but by Implication and it is not good to enlarge actions for words Plaintiff Nil capiat per breve Green versus Harrington Case Assumpsit lies not for Rent PEter Green brought an action upon the case against Thomas Harrington and counts that wheras the Defendant such a day was indebted to him in ten pounds for the rent of one House and land which he had demised to him for one year then past the Defendant promised to pay it upon request and upon issue Non Assumpsit it was found for the Plaintiff and moved in Arrest of Iudgment by Chibborn that no action lies upon this promise because it is Debt for the rent for Land and the Assumpsit is of a lesse nature as if one he indebted upon an Obligation and that being forfeited he promised to pay it no action lies for the Debt is due upon the Obligation Albanies case And the opinion of the Court accorded This was ruled in Albanies case of Lincolnâ— Inne in Banco Regis Trin. 17 Jac. Rot. 1849. Castilion versus Smith AN action of Covenant was brought by Sir Edward Castilion against Thomas Smith as Executor Covenant Iudment against Executors for Covenant broken by them shall be De bonis testatoris Iohnson and Barker a breach assigned by act done by the Executors and after Verdict it was moved if Iudgment should be De bonis propriis by reason the breach was made by the Executors And it was resolved that it should be de bonis testatoris And where the Writ is in the Detinet only there the Iudgment shall be de bonis testatoris vide the like Iudgment Hil. 33 Eliz. Rot 1143. between Johnson and Barker Pies Case PIe exhibited an Information upon the Statute of the 35 of Eliz. for converting of a house in London into many dwelling houses and upon Not guilty pleaded the Defendant is found guilty But be cause the said Statute is discontinued by the 43 Eliz Costs against an Informer and there is now no such Statute the Court upon motion in Arrest of Iudgment award that the Defendant eat inde sine die And whether the Defendant in this case shall have costs upon the Statute of 18 Eliz. cap. 5. was the question The words of the Statute are if any Informer willingly delay his Suit or discontinue or be non-suited or shall have the matter or the tryall passe against him by Verdict or Iudgment in Law he shal pay costs 1. Object It was objected that this Statute doth not extend but only to penall Statutes which then were in Esse Answ To which it was answered by the Court that this Statute was a perpetuall direction to all Informers 2. Object It was objected that if there be no Statute then there is no Informer 3. Object In this case Verdict is sound for the Informer and he may be presumed to be ignorant And there is no reason that he shall pay costs for default of his Councell 4. Object There is no Iudgment against him but that the Defendant eat inde sine die and that is no other then an exception in stay of Iudgment Keldridges case And a President was cited by Henden 25 Eliz. Banco Regis there upon an Information against Keldridge and another upon the Statute of 35 H. 8. for not
inclosing Woods but suffering them to lye open after cutting by the space of one month he alledged the cutting the tenth of April and the lying open untill the second of May which was not a month And upon Not guilty pleaded it was found for the Plaintiff and upon motion in Arrest of Iudgment it was awarded that the Defendant eat inde sine die and no costs And the Lord Hobart said that this Statute was made for the ease of the Subject and for avoiding and preventing of vexations and therfore did enumerate all the cases in which the Informer could not prevail and had many words that the Statute of 23 of H. 8. or any other Statute doth not give expresly costs upon demurrer and this is not within 23 H. 8. if upon discontinuance And now the matter passe against the informer be it by Verdict or Iudgment all is one for the makers of this Statute intended to curb all vexatious Informers And if it shall be suffered that Informers may inform upon Statutes not in force and pay no costs that would open a Window to the great vexation of the Subjects And for Presidents not inflicted upon they are of little esteem And I concurred and though Verdict be found for the Informer yet there being no Statute there can be no Offence and it is in Law as not guilty And this case is within the meaning and Letter of the Statute for the Statute intend costs where the cause passe against the Informer be it by default of matter or form Winch doubted of this speciall case because the matter is found for the Informer but he agreeh if it were upon Iudgment upon demurrer or speciall Verdict costs should be given And Iustice Warburton was of opinion that there should be no costs in this case for he is not capable to sue where the Statute is discontinued And so if the Venue be misawarded and he said that he had conference with the Lord chief Baron who also held that there should be no costs in this case And so the matter rests Blackburnes Case Norff. Debt AN action of Debt was brought by I. S. against Blackburne upon a Lease for a year and so from year to year And upon Nil debet pleaded the Iury gave a speciall Verdict to this effect A Devise to a Feme of a term upon condition Wells seised of Land in Fee devised them to his Daughter and her Heirs when she come to the age of eighteen years and that his Wife should take the profits of the Land to her use without any account to be made untill the Daughter come to the age of eighteen years And made his Wife his Executor and died And it was provided that the Wife should pay the old Rent and find the Daughter at School untill she could read and write English the Feme enters and proves the Will takes Husband and dies the Husband assign this term to the Lessor who brought this Action And it was found that all the Conditions were performed and that the Daughter was within the said age of eighteen viz. thirteen years And the sole question was whether it be a term for years in the Wife and whether when she takes Husband he shall have it after the death of his Wife and it was ruled clearly that it is and it being by Will it is a good Lease Another question was if this trust of Education be Quasi a Limitation personall and with intent that the Lease shall not be to the Wife any longer then she may educate her Daughter And it was agreed that it was not for any one may educate her and find her at School and there it is without any default in the Wife for it is the act of God and therfore Judgment for the Plaintiff Trin. 17 Jac. Whittingtons Case IVdgment in Debt against Ferdinand Earl of Derby Scire facias Sci. fac by the Baron and Feme the death of one of them shall abate it at the Suit of I. Whittington and his Wife she being Administrator to her Husband who had the Iudgment who brought a Sci. fac upon the Iudgment against 30. Ter-tenants they appear and all besides 3. plead that at the time of the Iudgment Ferdinand the Earl was seised in tail c. And the Plaintiff had Iudgment against the three with a cesset executio and afterwards Whittington the Husband died and this is surmised and entred vpon Record viz. the death of the Baron after the Darrein continuance and whether the Writ shall abate or no was the question And per totam Curiam the Writ shall abate for the Wife there cannot recover as a Feme sole and though this Writ be judiciall yet it is in nature of an Originall for she might have had an action of debt upon the Iudgment and ought to have that action solely after the year untill the Statute of Westminster 2. which give Scire facias and to this Writ they may plead But in Writs Iudiciall which are only Writs for the doing of execution there the death of one shall not abate it vide 19 Ass 10. 25 E 3. and vide Reads case Coke lib 10. fol. 134. Ruggles Case IN Ruggles Case upon the motion of Serjeant Arthure upon the Statute of 1 Jacobi cap. 15. concerning Bankrupts How the distribution of the Estate of a Bankrupt shall be a Commission was sued out by some of the Creditors and they pursued it and the Land was sold and it being opposed they defended their severall Suits and prevailed by a tryall at Bar And after other Creditors which before would neither partake nor aid them came and prayed to be joyned with them And the Commissioners doubted upon the Statute whether they might allow them to be joyned and the words of the Statute are That it shall be lawfull for any of the Creditors of the Bankrupt within four months after the Commission sued forth and till distribution shall be made by the said Commissioners for the payment of the Bankrupts Debts as in such case hath been used to partake and joyn with other Creditors that shall sue out the said Commission the said Creditors so joyning to contribute to the charges of the said Commission and if the Creditors came not in within four months then the Commissioners to have power to distribute It was resolved that the Commissioners may sell and prepare for distribution presently upon the execution of the Commission but untill the four months are passed they may not proceed to distribution for the Creditors which inhabite in the remote part of the Realm peradventure cannot have notice and it may be carried so secretly that if they might distribute presently that they which sued out the Commission should be only satisfied when indeed there was no default in the others Also it was resolved that the offer of Creditors to be joyned and before they be partakers is not an affectuall offer without offering to be contributory
c. but at the time of taking was so To this it was answered That the Count chargeth not the Defendant absolutely with all the time but Diversis diebus vicibus And also he justifie for two weeks which is the same Trespasse Then upon the matter the question is if he which hath Estrayes or Waifes if he seise an Estray qui est ferox whether he may fetter such Estray It was agreed by the Court that when an Estray comes within a Mannor and walk there this is a Trespasse and the party in whose Land the Estray is Damage-feasant may chase him out of his ground Also it was agreed that untill the Lord or his Bayliff or Tithing-man seise the Estray that shall not be said an Estray but when the Lord seise than he hath the Commencement of a property therby and he is chargable against all others for the Trespasse which this Estray doth and if this Estray within the year estray out of the Mannor the Lord may chase back the Estray untill he be seised by another Lord which hath Estrays But if he be seised by another Lord then the first hath lost all his possibility of gaining the property and the other Lord ought to proclaim it de novo It was moved that if a Lord of a Mannor which hath Estrayes and hath seised an Estray suffer that Estray by negligent keeping to stray away and never can be found again the Owner may have an action upon the case of Trover and Conversion against the Lord Quare vide 44 E 14. there the Lord seised an Asse for an Estray he to whom the property did belong came and challenged the Estray the Lord may detain him untill he tender sufficient recompence for the Pasture vide purc 20 H 7. 1. by Vavisor and 39 E 3. 3. That the Owner cannot take an Estray untill he tender recompence likewise the Lord after seisin of the Estray if he took him not Damage-seasant may have Replevin and he ought to make him amends The Lord cannot work the Estray but may keep him in his Stable And if the Sheriff upon a Fieri facias fetter the Colt and after the Defendant redeem him for money he shall not have trespasse vide 6 E 3. 8. it is not alledged that the fettering was to any damage of the Estray vide 22 Ass 56. Entred Pasch 18 Jac. Rot. 650. Treherne versus Cleybrooke Debt IOhn Treherne brought an action of Debt against Cleybrooke and count of a Lease made by John Treherne Grand-father to the Plaintiff of Lands in S. Olives in Surrey and intituled himself by the Will of the Grand-father by which he devised the Lands to the Plaintiff in tail Devise the remainder over to Leonard Vpon Nil debet pleaded the Iury found specially scilicet the Devise of the Reversion in tail the remainder over to A. in tail the remainder of one Moyety of the Land to one Daughter in tail and the other Moyety to another with Proviso that for the raising of a Stock for John Treherne the Grand-child when he come to the age of one and twenty years or if he dies for the raising of a Stock for Leonard in like manner he willed that Edward Griffin and Anne his Wife shall take the profits and shall receive all the rent of the Land devised to John Treherne to their own use untill he come to the age of one and twenty years upon Condition and so as the said Edward Griffin and Anne shall within three months after the death of the Testator become bound to his Overseers in an Obligation with such penalty as the said Overseers shall think fit to pay to the said John or if he dye without Issue to the said Leonard within three months after he come of age such a summ the Condition to be drawn and devised by his Overseers And if Edward Griffin and his Wife refuse then the Overseers should receive the Rent and Profits to their proper use But the Condition appoint not to whom the Overseers shall be bound And made Edward Griffing and William Iremonger his Executors and I. and others Supervisors and died and that within fourteen daies after the death of the Testator the Will was read to the said Overseers And that they did not devise or draw within the time appointed any Obligation nor tendred any within that time and that notice therof was given to the Defendant and that the Rent was demanded and the Reversion claimed by the Plaintiff sed utrum c. Vpon the Argument of Serjeant Harris which argued for the Plaintiff and vouched 21 H. 6. 6. That when one made Executors and also Coadjutors the Coadjutors are not Executors and that it is a Condition precedent vide 14 H 8. 22. Wheelers case 46 E 3. 5. Truels case Coke lib 5. 127. Palmers case 4 E 3. 39. 11 H 4. 18. And because that in this case the said Edward Griffin and his Wife are to have benefit they ought to require them to nominate the summ But because it appears to the Court that this Action is founded upon a Contract in Law therfore it ought to be brought in Surrey as it was agreed in Ungle and Glovers case An 36 Eliz vide Coke lib 3. fol 23. Nota that the Iudgment is speciall for this cause and no costs upon the Statute of 23 H 8. for the Defendant for the Statute saies that upon a Contract made by the Plaintiff the Defendant shall have costs and yet upon this Statute if the Executor be non-suited or Verdict given against him he shall not pay costs Where costs shall not be against Executors by common experience alwaies after the Statute and yet he shall have costs if he recover And in this case the Plaintiff shall have costs if he recover and yet it seems upon this Iudgment the Defendant shall not have costs against him and especially because that they are expresse words in the Statute that the Defendant shall have costs after Non-suit or lawfull tryall against the Plaintiff and here is neither Non-suit nor lawfull tryall vide Statute 4 Jac cap. 3. seems to be full in all cases where the Plaintiff shall have his costs upon Non-suit or when the Verdict passe against him the Defendant shall have costs yet it hath been taken that it shall be intended in actions of Debt upon the Contract of the Plaintiff himself for Executors neither upon Verdict nor upon Non-suit shall pay any costs because that their actions are brought upon Debts or Contracts not made between them and the Defendants vide the Statute of Glocester cap 1. that where a man recover damages there also he shall have costs Hickson versus Hickson HIckson Demandant in Dower against Hickson They are at issue the Tenant offer to be essoined upon the Venire facias and for want of the Adjornment therof by the Demandant Essoin shall not be allowed in Dower the Tenant had procured a Non-suit and yet the
the Award of Costs were in full force and effect But that afterwards viz. such a time as well the said Iudgment de non pros as the said Iudgment of thirty pounds Debt against the now Plaintiff were evacuated wherupon the Defendant demurred And it having been often debated by Hitcham for the Defendant and Henden for the Plaintiff And now upon Oyer of the Record and of the Iudgment the Court gave Iudgment for the Plaintiff And the Lord Finch said that this action upon the case is grounded upon two misdemeanours 1. The procurement of the said Iudgment for Edw. L. after a Non pros entred for the Defendant And though the Iudgment was erroneous yet the now Plaintiff was vexed and imprisoned therby which indeed is the cause of this action 2. The taking therof unlawfully when the first Iudgment de non pros was in force and the Plea of Nil tiel Record go only to one of the Causes And admitting that there was never a Iudgment de non pros but that the Defendant had unlawfully procured a Iudgment and taken Execution therupon and procured the Plaintiff to be taken in Execution and Imprisoned this is cause of action And to that he hath not answered and therfore he ought to have pleaded Not guilty to that which he takes by protestation Iudgment pro quaerente Pasch 11 Car. Baker versus Hucking Adjudged B. Rs. Tenant in tail and he in Reversion make a I. case Pro ut aut vic TEnant in tail and he in Reversion joyn by Deed in a Lease for life he in Reversion devise the Land by his Will to one in Fee and dieth Tenant in tail dies without Issue and the Heir of him in Reversion and the Devises claim the Land And the sole question is if this Lease be a Discontinuance and it was adjudged a Discontinuance and then the Devise void for he had not a Reversion And the difference was taken when Tenant for life and he in Reversion joyn in a Lease by Deed for without Deed it is first a Surrender Discontinuance and then the Lease or Feoffment of him in Reversion it shall be the Lease of Tenant for life so long as he live and after the Lease of him in Reversion and yet they shall joyn in a Writ of Wast And in this case there is no question but if the Lease had been made solely by Tenant in tail that then it were a Discontinuance and the joyning of him in Reversion alters it not for that amounts to nothing but as a Confirmation and is not like to Bredons case Coke lib 1. fol 76. Where Tenant for life and he in remainder in tail levy a Fine for every one there passeth that which lawfully he may And upon Argument it was adjudged that it was a Discontinuance and not the Lease of him in Reversion but his Confirmation Iustice Crooke differed in opinion Mich. 11 Car. Lashbrookes Case Somerset LEwes Lashbrook an Attorney of this Court brought an action of Trespasse against I. S. for entring into his house and breaking his Close And in the new Assignment he alledged the Trespasse to be in a house called the Entry and in a house called the Kitchin and in his Garden and in one Close called the Court. The Defendant as to the force c. and to all besides the Entry plead Not guilty And as to his entry into the Court and Kitchin A Warrant to four and two of them execute it and the Tenements aforesaid of the new Assignment he plead that he had brought an action against a woman for Trespasse and had so proceeded that he recovered and had execution directed to the Sheriff of Somersetshire and therupon a Warrant directed to four speciall Bayliffs to arrest the said Woman and two of them at Minehead in the County of Somersetshire arrested her and carried her to the house of the Plaintiff in Minehead being a Common Inn and the Defendant entred into the said houses called the Entry and Kitchin and the Tenements aforesaid of the new Assignment to speak to the Bayliffs and to warn them to keep her safe And as soon as he could he returned wherupon the Plaintiff demurred And now Henden took two Exceptions the first was 1. That the Defendant had not pleaded to all the Closes but that was over-ruled for he justified in the tenements aforesaid of the new Assignment 2. The second was that the Warrant to the Bayliffs was to all and not Conjunctim and Divisim and therfore it should be by all and not by two only To that it was answered and resolved that when a Sheriff makes such a Warrant which is for the Execution of Iustice that may be by any of them for it is Pro bono publico And the very Case was adjudged 45 Eliz between King Hebbs Coke Littleton 181. b. And Iudgment was given for the Defendant Hil. 11 Car. Davies Case Hereford DAvies an Attorney of this Court brought an action upon the case for these words If I list I can prove him Perjured Words And the opinion of the Court was that they were not actionable for there is not any Affirmative that he was perjured but a thing which is Arbitrary and saies not that he would do it Iudgment pro Defend Mich. 7 Car. Rot. 1097. Alston versus Andrew Suff. Pâ—ter Alston Executor of Peter Alston brought an action of Debt upon an Obligation of a hundred and twenty pounds against William Andrew The Obligor and the Obligee make the same person Executor and Edward Andrew and count That the Defendants and one Francis A. became obliged to the Testator c. and that they did not pay it is the said Testator in his life nor to the now Plaintiff and one Francis Andrew Co-executor with the Plaintiff who is summoned and the Plaintiff admits to prosecute alone without the same Francis c. The Defendants demand Oyer of the Obligation which is entred in haec verba and plead that Francis A. in the said Writing named after the making therof made the said Francis Andrew and Barb. A. his Executors and died And that the said Francis A. accepted the Burthen of the Testament And after the said Peter Alston the Testator made his will and Constituted the Plaintiff and the said Francis his Executors and died Et hoc paratus est verificare unde c. wherupon the Plaintiff demur Trugeon and Meron Mich 2 Jac. Rot. 2663. Garret Trugeon Plaintiff against one Anthony Meron and others the Administrators of Benjamin Scrivin upon a single Bill The Defendants demand Oyer of the Bill wherby it appears that one John Simcocks was obliged to the said Trugeon joyntly and severally with the said Scrivin Quibus lectis auditis the Defendants sayd that the said Simcocks died intestate and that the Administration of his Goods was granted to the now Plaintiff who accepted the Burthen of the Administration and Administred the Plaintiff demurred
and Iudgment against the Plaintiff 8 E 4. 3. 21 E 4 2. Lit. 264. b. 20 E 4. 17. If the Debtee makes the Debtor and others his Executors the Debt is discharged Mich 9 Car. Banco Regis Rot 373. Anne Dorchester Executrix of Anne Row Dorchester and Webb Plaintiff against William Webb in Debt upon an Obligation of five hundred pounds the Defendant demanded Oyer wherby it appears that the Defendant and one John Dorchester were obliged joyntly and severally in the said Obligation The Defendant plead in Bar that the said John Dorchester made the Plaintiff his Executrix who proved the Will and had Goods sufficient in her hands to pay the said Debt The Plaintiff reply that before the death of the said Anne Row the Obligee she had fully Administred all the Goods of the said John Dorchester Demurrer and Iudgment for the Plaintiff And in this case it is not shewn that the said Francis and Peter or any of them proved the Will of the said Obligee or that they administred his goods or that they had any goods of the Obligor to administer at the time of the death of the Obligee as it ought to have been shewn And the said Francis Executor of the Obligee and also of the Obligor refused to be Executor to the Obligee and never Administred and never meddled with the Goods of the Obligee and so the Debt is not released in Law as by the said Case and former Iudgment appears This case had been often argued by Serjeant Hedley and of the other part by Serjeant Hitcham and affirmed that once Iudgment was given for the Defendant but it yet depends Trin. 12 Car. MEmorand Vpon Petition exhibited to the King by the Prisoners of quality which were in execution in the Fleet Liberty may not be given to Prisoners by force of a Habeas Corpus Kings Bench and Marshalsey to have liberty in the time of Infection and for preservation of their lives to have liberty by Writs of Habeas Corpus to go into the Country upon security to be given to the Warden and Marshall for their return The King out of his great care of their safety referred their Petition to the Lord Keeper Coventry and that he with the advice of the Iudges should consider by what way it might be done And the eighteenth day of June we attended the Lord Keeper at Durham-house And therupon conference and consideration of a former Resolution which was at Reading in Mich. Term last before the said Lord Keeper where were present all the Iudges besides my self That these abusive Habeas Corpus were not lawfull and that the Warden and Marshall were then called and warned that they should not suffer their Prisoners to go into the Country as they had used to do by colour of such Writs This which followes was subscribed WEE are of Opinion that the Writ of Habeas Corpus is both Ancient and Legall But as the Writ doth not so no Rule can Authorize the Keeper of the Prison to give liberty to his Prisoner by colour of such Writ but the same is an abuse against Law and an Escape in the Keeper if he let the Prisoner go by such Writ We find that neither in the twenty fourth year of Eliz. when the Term was Adjourned to Hertford Nor in the 34. of Eliz. in which year it was Adjourned to Hertford Nor in the 35. of Eliz. in which year it was Adjourned to St. Albans Nor in 1 Jac. in which year the Term was Adjourned to Winchester Nor in the first of King Charles in which year it was Adjourned to Reading In all which years there were great and dangerous Infections of the Plague there was no such course to set Prisoners out of Prison by Habeas Corpus but we find it a Novelty begun of late years But We think that if the danger of Infection shall grow so great as it shall be found necessary to provide for the safety of the Prisoners who may at all times provide for themselves by paying their Debts and yeilding obedience to Justice then a course may be taken that some certaine house may be assigned for the Warden of the Fleet in some good Town remote from the Infection and the like for the Marshall of the Kings Bench in some other Town where they may remove such Prisoners as have been Petitioners to his Majesty and there keep them as Prisoners Sub arcta salva Custodia as they should be kept in their proper Prisons and not to be as House-keepers in their own houses and by this means they will have the like to avoid the Infection as other Subjects have and not make the Infection a cause to abuse their Creditors or delude the course of Justice John Bramsion 1. Richard Hutton 2. George Crooke 3. George Vernon 4. Francis Crawley 5. Humph. Davenport 6. William Jones 7. Thomas Trevor 8. Robert Barkley 9. Richard Weston 10. To Sir John Bramston Knight Lord chief Justice of England My very good Lord I Have acquainted his Majesty with your resolution and your Brethren about Writs of HABEAS CORPUS his Majesty doth exceedingly approve the same And hath commanded me to let you know that his Majesty would not recede from that which you have certified And praies you and the rest of my Lords the Judges to observe it constantly attending to that resolution under your hands Hampton Court 19 June 1636. Your Lordships assured Tho. Coventrey C. S. Mich. 14 Car. MEmorand That 28. Aprilis 14 Car. Iustice Hutton argued in the Exchequer Chamber in the Case Adjourned thither upon a Scâ—re facias by the King against Hampden for Ship-money in which he was of opinion that as well for the matter as for the form upon divers exceptions to the pleading Iudgment should be given against the King Afterwards viz. 4. Maij. Thomas Hanson Batchelor of Divinity and Parson of Creake in Northamp came to the Court of Common Bench Iustice Hutton and Iustice Crawley then being there giving Rules and Orders and said Words against Justice Hutton I accuse Mr. Justice Hutton of high Treason for which he was committed to the custody of the Warden of the Fleet by Iustice Crawley and after by the direction of the King he was indicted in the Kings Bench and convicted and fined to five thousand pounds to the King And Iustice Hutton preferred his Bill against him there and recovered ten thousand pound Dameges Lord Digbies Case MEmorand That in the Parliament holden primo Car. It was resolved by the Iudges upon conference concerning the Lord Digby That when any Peer shall be proceeded against for Treason that ought to be by Indictment and that being done Where tryall of Treason by the Statute of 3 Jac. cap. 4. shall be and how then the King is to appoint a Peer to be Steward for the time and then to proceed to Arraign him or otherwise to transmit this Indictment by Certiorari to the Parliament and there