that if it had been by Writ he must have shewed it but need not it being by Plaint if the truth appear in that and if a man bring his Action as Assignee he need not shew it in his Plaint if the truth appear in the Declaration but it is otherwise in an Original and a Plaintiffe in Kings Bench as an originall but not in all things and if the Plaint be incertain the Defendant in that Court shall plead in Abatement of the Plaint as to an Original in the Common Pleas and at last two Presidents were shewen one between Champion and Hill and the other between Merrick and Wright that were allowed without naming of the Plaintiff Rector in the Queritur and Judgement was given for the Plaintiff by the whole Court Note it was agreed by all the Court of Kings Bench Mich. 5. Jac. and hath many times been ruled that if a man sell his Tithes for years by word it is good but if the Parson agree that one shall have his Tithes for seven years by word it is not good by the opinion of Fleming Cheif Justice because it amounts to a Lease and he held strongly that Tithes cannot be leased for years without a Deed. COb versus Hunt Hill 5. Jac. Cob sued a Prohibition in the Common Pleas against Hunt Parson of D. in Kent and suggests a Modus demandi as to part of the Tithes demanded against him in the Spiritual Court and as to the residue suggests a Contract executed and performed between him and the Parson in satisfaction of the residue and because he proved not his Suggestion within six Moneths Hunt the Parson had a Consultation and Costs assessed by the Court to fifty shillings and Damages fifty shillings by the Statute of the 2 E. 6. they shall be doubled but in truth no Judgement was given to recover them because these words Videlicet Ideo considerat fuit qd recuperet was omitted yet Hunt thinking that all was certain and perfect brought an Action of Debt in the Common Pleas for the Costs c. and declared of all the matter above and that the Damages were assessed upon which it was adjudged that he should recover c. and that the Costs were not paid Per quod Actio c. And had a Judgement against Cob by Non sum informat and thereupon Cob brought his Writ of Error as well in the Record and Processe c. of the Prohibition as of the Record and Processe in the Action of Debt for the Costs and assigne the general Error but Yelverton assignes two Errors in special first that there was no Judgement in the Prohibition for Recovery of the Costs but onely an Assessement of Costs without any more which is not sufficient for the Assessement of Costs onely is but matter of Office in Court but no Judgement of Court to binde which was confessed by the whole Court The second Error was that no Costs ought to be assessed or adjudged in the Cause above because the Prohibition is grounded solely upon the Modus decimandi which needs proof and upon the Contract between the parties which requires no proof and the Suggestion being intire and part of it needing no proof they could not give any Costs for that is onely where the whole matter in the Suggestion needs proof and therefore the mixing the Contract with the manner of Tithing priviledges the whole as to the matter of Costs but they might grant a Consultation as to that part of the Suggestion which concerned the manner of Tithing but not for the rest which was granted by the whole Court and so both the Judgements were reversed which mark MArkham versus Mollineux Hill 1. Jac. Mollineux sued out an Original in the Common Pleas in an Action of Debt upon a Bond against Markham by the name of John Markham Alderman de D. and all the mean Processe are continued against him by the name of Alderman Markham he appeared and the Plaintiff declared against him by the name of Markham of D. Esquire and afterwards the parties were at Issue and it was found for the Plaintiff and Judgement entred and it was reversed by Writ of Error because it did not appear that that Markham was the same Markham against whom the Original was prosecuted and the Processe continued but it seemed rather that he was another person by reason of his severall Additions of Alderman and Esquire which mark OLiver versus Collins Pasch 6. Jacobi The Plaintiff brought an Action of Debt upon the Statute for not setting forth of Tithes and shews that he is Parson of the Parish Church of Little Lavar in Com. Essex and that the Defendant had so many Acres within the Parish of Little Lavor sowed with Wheat whereof the tenth severed from the ninth part came to eight and twenty pounds and shews that the Defendant at Little Lavor aforesaid took and carried away the Wheat without setting forth the Tithes contrary to the Statute by reason whereof he forfeited threescore Pounds and upon Nil debet pleaded it was found for the Plaintiff and moved in Arrest of Judgement first that the Statute was mis-recited for whereas the the Plaintiff declared that the 4. Novemb. 2 E. 6. it was inacted it was said that there was no such Statute for the Parliament commenced 1 E. 6. and continued by prorogation untill the 4. Novemb. 2 E. 6. and therefore the Plaintiff was mistaken in that but that Exception was not allowed for there were an hundred Presidents against it and in respect of the continual use in that form as the Plaintiff had declared the Court said that they would not alter it for that was to disturb all the Judgements that were ever given in that Court. And secondly it was objected that the matter was mis-tried and there ought to be a new Triall because the Venire facias was of Parva Lavar whereas by their pretence it ought to have been of the Parish of Little Lavar to which Yelverton made Answer that the Triall was well enough for by that Action no Tithe is demanded nor recovered but the Defendant is onely punished for his Contempt against the Statute in not setting forth his Tithe and the wrong done to the Plaintiff complained of is laid onely in the Village of Little Lavor and not in the Parish for all the places in the Declaration where the Parish is named are onely matter of Conveyance and inducement to the Action and not of the substance for the substance is onely that where the wrong and grievance is done to the Plaintiff and that arises onely in Parua Lavor which was granted by the whole Court upon a grand Debate at severall Dayes and Judgement was given for the Plaintiff and the like Judgement was given between Barnard and Costerdam in an Action upon the same Statute upon the last point for the Venn and this hath been twice adjudged but in Costerdams Case which concerned the Earl
or Geldings and no more and because the Beasts aforesaid in the narration aforesaid specified over and above the aforesaid other three Mares or Geldings the aforesayd time in which c. were in the aforesayd place in which c the Grasse then growing there eating and the Common of pasture of the sayd Robert Pargiter overcharging and doing damage to the sayd Robert there the sayd Robert Pargiter in his owne right doth wel avow and the aforesayd John Phillips as Bayliff of the aforesayd Pargiter doe well acknowledge the taking of the Beasts aforesayd in the aforesayd place in which c. and justly c. they then doing damage there c. And the aforesayd Robert Kenrick saith That neither the sayd Robert Pargiter for the reason before alleadged the taking of the aforesayd Beasts in the aforesayd place in which c. can justly avow nor the aforesayd John Phillips as Bayliff of the aforesayd Pargiter for the same reason the taking of the Beasts aforesayd in the aforesayd place in which c. justly can acknowledge Because by protestation that he the sayd Robert Kenrick and all those whose estate the sayd Robert Kenrick now hath and at the aforesayd time of the taking c. had in the sayd Messuage and foure Virges of Land with the appurtenances whereof c. time out of minde had not nor used to have or were accustomed every yeare at the first day of August called Lammas day and from thence to the next Feast of the Parification then next following Common of pasture in the aforesayd place in which c. onely for three Horses Mares or Geldings and not more in manner and forme as the aforesayd Robert Pargiter and John Phillips above have alleadged for Plea the sayd Robert Kenrick sayth That he long before the time of the taking of the Beasts aforesayd and also at the same time of the taking c. was seised of the Mannor of Kings Sutton with the appurtenances in Kings Sutton and Astrop in the County aforesayd whereof the aforesayd Messuage and four Virges of Land with the appurtenances whereof c. are and at the aforesayd time of the taking c. and also time out of mind c. were parcell in his Demesne as of Fee and the aforesayd House and foure Virges of Land with the appurtenances thereof c. and of the taking and likewise time out of mind were parcell of the Demesne Lands of the Mannor of Kings Sutton aforesayd And the sayd Robert Kenrick so of the Mannor aforesayd with the appurtenances in manner aforesayd appearing seised the sayd Robert before the sayd time in which c. put his Beasts aforesayd which then were the proper Beasts of the sayd Robert Kenrick upon the aforesayd House and four Virges of Land with the appurtenances lying and rising in the aforesayd place in which c. to eate the Grafs there growing in the sayd place in which c. called Great Greens parcell c. the Grass in the same then growing feeding and the aforesayd Beasts were in the place aforesayd untill the aforesayd Robert Pargiter and John Phillips the aforesayd fourth day of August the seventh yeare aforesayd at Kings Sutton aforesayd in the County aforesayd at Great Greene parcell c. took the sayd Beasts of the sayd Robert Kenrick and those unjustly detained against Sureties and Pledges untill c. as he above against those complaines and this he is ready to verifie whereof and from which the aforesayd Robert Pargiter and John Phillips the taking of the aforesayd Beasts in the aforesayd place c. further acknowledge the sayd Robert Kenrick demands Judgment and his damages by reason of the taking and unjust detaining of those beasts to be adjudged unto him c. And the aforesaid Robert Pargiter and John Phillips say that the aforesaid Plea of the said Robert Kenrick above in the Bar avowed pleaded and matter therein contained is very insufficient in Law justly to avoid the said Robert Pargiter and the said John from just acknowledging the taking of the Beasts aforesaid to have and shut up and that he to the said plea in manner and forme aforesaid pleaded hath no need not by the Law of the Land shall be held to answer and this they are ready to averr whereof for default of a sufficient plea of the aforesaid Robert Kenrick in this part the said Robert and John as before demand Judgement and Returne of the Beasts aforesaid together with their Damages c. To them to be adjudged c. And the aforesaid Robert Kenrick in respect he hath sufficient matter in Law justly to avoid the said Robert Pargiter and the aforesaid John from justly acknowledging the taking of the said Beasts to be shut out as above alledged which he is reaoy to verify which truly matter of the aforesaid Robert Pargiter and John do not answer according to their verifying they altogether refuse to admit as before and demand Judgment and their Damages occasioned by the taking and unjust detaining of the said Beasts to be adjudged to them c. And because c. Upon the pleadings the Case was thus a Freeholder prescribs to have common in parcell of the Demesnes of the Mannor for six Horses and other Cattel in certain Land from Lammas to Candlemas that the Lord of the Mannor hath used to have the said Parcell of Land in severall to his owne use from Candlemas to Lammas and in consideration of that the said Lord hath used to have Common in the said parcell of Land for Horses only and not more and the Lord unjustly puts in other Beasts then the said three Horses in the said parcel of Land and surcharged the Common and the Free-holder distrayned them doing Damage and the Lord brings a Replevin and it was argued that prescription was not good for that that Free-holder claimes that as Common without number in his severall Soyle the Grantee cannot exclude the owner of the Soile 12 H. 8. Brooke so of him which hath Common Fishing in the severall of another he cannot exclude him which hath the severall 18 H. 6. 16. And it is not like to the Case of the time of Edward the first prescription the 55. Where is Prescription that the Owner of the Soile shall be excluded from his Common for part of the yeare for there the other claimes all the Vesture of the Land and so may well exclude the Lord but not when he claimes it but as Common but it was agreed that by Lawes by the Commoners consent they may order that their great Cattell shall be put in in such Feild only untill such a Feast and after that for sheep and swine and this is good as it appears by 46 Ed. 3. 25. And Coke cheife Justice said that such prescription to have Common and to exclude the Owner of the Soyle is not good and he saith that so it hath been adjudged between Whyte of Shirland 31 Eliz. And in
any satisfaction in tender to satisfaction Insomuch that this is only the fruit of Tenure and not like to cutti ng of Trees nor to digging of Cole or other Ore And so Coke cheife Justice that it hath been adjudged and with this agreed the booke of 21. Ed. 3. 1. The manner to make Summons in Dower if the Land lieth in one County and the Church in another County Then upon the Statute the Sheriffe ought come to the next Church though it be in another County and there make Proclamation asthe Auditors in Accompt ought to commit the Accomptants found in arrerages to the next Gaole and there ought to be committed though that they are in another County The words of a Patent of a Judge of the Common Bench are as follows that is to say James by the grace of God c. Know that we have constituted Humphrey Winch Serjeant at Law one of our Justices of the Common Bench during our good pleasure with all and singuler Vales and Fees to the same office belonging and appertaning In Witnesse of which c. Michaelmasse 1611 9. Jacobi in the Common Bench. Jacob against Stilo Sowgate IN an Action upon the Case for slanderous words The declaration was that the Defendant said of the aforesaid Plaintiff that he is perjured to which the Defendant pleads that the Plaintiff another time hath brought an Action in the Kings Bench against the same Defendant for that that he the said Plaintiff was perjured and had cozened John Sowgate and that the Defendant had pleaded to all besides these words Thou art perjured not guilty and to the words thou art perjured he Justifies that the Plaintiff was perjured in making an Affidavit in the Star-chamber and this Issue was Joyned and it was found for the Defendant but it was not pleaded that any Judgement was given upon it And Haughton Serjeant for the Plaintiff which had Demurred upon the Defendants Plea Argued that the Plea is insufficient for if it shall be intended by that that the Plaintiff was afore times barred if it be in a reall Action it ought to be averred that it is for the same Land and if it be in a personall Action it ought to be averred that it is the same Debt or Trespasse and if it be pleaded by way of Justification then he ought to have averred also that the Plaintiff hath taken a false and untrue Oath upon which Issue might have been taken But here nothing is pleaded but the Record and nothing averred in Facto So that the Issue cannot be taken upon it for the pleading is only of Record and that the Defendant for the cause aforesaid in the Record afore said mentioned spoke the said words and this is not good for there is not contained any cause of Justification as in Quare Impedit in the 15. and 16 H. 6. The Defendant pleads that he was Incumbent by the cause aforesaid and without that But this was no good Plea for he ought to plead his Title specially And also it is not pleaded as Estoppell for then he ought to have relied upon that precisely as 35. H. 6. in Replevin the avowant relies upon discent 30. assis 32. 2. H. 7. 9. Also Estoppell it cannot be insomuch that Judgement was not given in the first Action Also it is not pleaded as Estoppell for the Plea is concluded Judgement if Action where he ought to have relied upon the Estoppell and peradventure also the Triall was voyd by unawarding of Venire Facias or other Error So that without Judgement it can be no Estoppell and so he concluded and praied Judgement for the Plaintiff Barker Serjeant argued for the Defendant that the Declaration is very good and notwithstanding that the words are generall that is he is perjured yet this may be supplyed very well by the Innuendo as it appeares by James and Alexanders Case 4. Coke 17. a. And also that Estoppell by the Verdict is good without Judgement as in Action of Debt release was pleaded and Issue joyned upon that and found for the Defendant and after another Action was brought for the same Debt and agreed that the first Virdict was Estoppell 2. Ed. 3. 19. b. c. And he cited Baxter and Styles Case to be adjudged in the point that the Estoppell is good and also Vernons Case 4. Coke where the bringing of a Writ of Dower Estopped the Wife to demand her Joynture and so concluded and prayed Judgement for the Defendant Coke the Count is good being of the aforesaid Plaintiff and may after be supplyed by Innuendo though that the words after are generall But if the words were generall that is He is perjured without saying that the Defendant spoke of the aforesaid Plaintiff these English words following Videlicet he Innuendo the Plaintiff is perjured this is not good and shall not be supplied by Innuendo and he said that another time convicted is a good Plea in case of life without Judgement but this is in favour of life but in trespasse it ought to be averred that it is the same Trespasse and also there ought to be Judgement and the Defendant ought to relye upon that as an Estoppell and agreed by all that Judgement should beâ—given for the Defendant if cause be not shewed to the contrary such a day c. Michaelmass 1611. 9. Jacobi in the Common Bench. Hall against Stanley IN Trespass for Assault and Imprisonment the Defendant justifies insomnch that the Action upon the case was begun in the Marshalsey for a Debt upon an Assumpsit made by the Plaintiff and that upon that Capias was awarded to this Defendant being a Minister of the said Court to Arrest the Plaintiff to answer in the said Action and that he by force of that Arrested the Plaintiff and him detained till the Plaintiff found suerties to answer to the said Action which is the same assault and Imprisonment To which the Plaintiff replied that none of the parties in the said Action were of the Kings houshold and so demanded Judgement upon which the Defendant Demurred in Law And Dodridge the Kings Serjeant for the Defendant that the Court of Marshalsey may hold Plea of Actions of Trespasse by the parties or any of them of the Kings house or not and he intended that the Jurisdiction at the Common Law was generall and then they have Jurisdiction of all Actions as well reall as personall and though that their Jurisdiction be in many cases restrained yet in an Action of Trespasse there is not any restraint but at this day they have two Jurisdictions That is in Criminall cases and also in Civill causes within the Virge See Fleta book the second and third where he discribes the Jurisdiction of all Courts and amongst them the Jurisdictions of this Court and also Britton which wrote in the time of Ed. 1. lib. 1. chap. 2. which saith it was held before Bygott who was then Earle
Acres to the Plaintiff and that the Defendant made and erected one Ditch and Hedge by reason whereof the Plaintiff lost the benefit of his way and after Triall and Verdict for the Plaintiff it was moved in Arrest of Judgement because it did not appear in the Declaration to what Village the common way led to And it was held a good Exception and Judgement arrested but if it had been unto a common way there or in such a Village it had been good KEnt versus Prat Hill 7. Jac. rotulo 131. Action upon the Case the Plaintiff declares that Prat was Rector of the Church of S. And that Kent was lawfully possessed of the Parsonage-house and that there were divers strifes between the Plaintiff and Defendant for the said Rectory and that the said Prat in consideration that the said Kent would surrender the Parsonage-house and the Gleab-land which were then sowed by Kent he promised c. And after Triall it was moved in Arrest of Judgement that the Surrender was not a valuable consideration because it did not appear to the Court that Kent had any Estate but at will which is determinable at the will of the Lessor and so he surrendred nothing but if these words had been in the count viz. of the Demise of the said Prat For a term of divers years it had been good though the certainty of the years had not been expressed SMailes versus Belt uxorem Hill 1. Jac. rotulo 1372. Action upon the Case for words spoken by the Woman Videlicet Thou art a Theif and a mainsworn Theif and a Verdict for the Plaintiff and moved in Arrest of Judgement that the Action would not lie but Judgement was arrested because the Issue was Quod ipsi non sunt cul and it ought to have been that the Woman was not guilty YArdley Attourney versus Ellyll Mich. 11. Jac. rotulo 1252. Action upon the Case brought for these words Your Attourney meaning the Plaintiff is a bribing Knave and hath taken twenty pounds of you to cozen me the Plaintiff laid a Communication such a day and place by the Defendant with one B. which B. had before that time retained the Plaintiff to be his Attourney concerning the Plaintiff Hubbart and Nichols held the words actionable videlicet for the first word Bribing Knave and that the last words did not extenuate or weaken the former if the words touch him in his Profession the Action will lie for it is against the Oath of an Attourney Birtridge is an old perjured Knave and that is to be proved by a stake parting the Land between M. and C. One Judge for the Plaintiff and two for the Defendant COrnhill versus Cowler Trespass upon the Case brought against Baron Feme for words spoken by the Woman the Baron Feme plead Quod ipsi in nullo sunt cul de praemissis and the Jury finde that the Woman was guilty and Exception taken after Triall to the Issue and Verdict and they were both aided by the Statute of Ieofayles But another Exception was that the Action was laid in Suff. And the Addition in the Writ was A. C. de C. in Com. Essex and in the Declaration the Plaintiff alleadges that the words were spoken at C. in the County aforesaid which was in the County of Essex and so a Mistryall CHimery versus God Action upon the Case upon a promise to discharge and save harmless the Plaintiff against all manner of persons and shews a Suit for Tithes in Norwich Court and the Defendant replies that the Plaintiff was not damnified and the Plaintiff rejoyns that he was damnified to wit at S. aforesaid which was in the County of Suffolk where the Action was brought and the Court held the Cause was mis-tried because the Suit was in Norwich and ought to be tried in Norwich and not in Suffolk and these words Apud S. praedictam were idle TIllet versus Bruen for words Trin. 12. Iac. The Plaintiff shews a Suit in Colchester Court and a Triall there before the Bayliff and that the Plaintiff gave in Evidence his knowledge and the Defendant willing to defame the Plaintiff as if he had given false Evidence said of the Plaintiff Thou art as much forsworn meaning in the Evidence aforesaid by the Plaintiff upon his Oath in Form aforesaid given as God is true and moved in Arrest of Judgement that the Inuendo would not maintain the Action and so adjudged LAmpleigh versus Braithwaie Mich. 13. Iac. rotulo 712. Action upon the Case in which the Plaintiff sets forth that whereas the Defendant had feloniously killed a Man and after the Felony committed did earnestly request and solicit the Plaintiff that he would labor and indeavour to obtain from the King for the Defendant a Pardon for the Felony upon which the Plaintiff at the instance and request of the Defendant by all lawfull ways and means possible did often and by many days labor and indeavor to obtain c. Videlicet by riding and journeying at his own cost and charges from L. unto the Village of R. where the King then was and from thence back again to L. to obtain c. The Defendant afterwards at H. in confideration of the Premisses did assume and promise to give the Plaintiff an hundred pounds of lawfull money when he should be required and a Verdict for the Plaintiff and moved in Arrest of Judgement for that it did not appear that the Plaintiff had spoken to the King for a Pardon nor done any thing or obtained a Pardon and Judgement was given for the Plaintiff Wynch said the Promise was subsequent to the Request and good for although the Defendant had no good by it yet because the Plaintiff was at costs and labor and it was at the Defendants request sufficient to maintain the Action If I request one to do a thing for me and make no promise and after you let me know that you did such a thing for me and then I promise to discharge or pay you this is a good consideration although the Promise go not with the Request otherwise it is where a man doth me a curtesie without any request And Hobart took this difference between a consideration executed and executory for where Non assumpsit is pleaded to a consideration executed the Plaintiff needs onely to prove the Promise for where the consideration is executory the Defendant may take Issue as well for not performing the consideration executory as upon the Promise GLover versus Taylor Hill 13. Iac. rotulo 852. Action upon the Case for ill using a Horse so that the Horse died and the Defendant promised to re-deliver the Horse The Defendant pleads Non cul And after a Verdict it was moved in Arrest of Judgement because he did not plead Non assumpsit And it was held a good Issue MArshall versus Steward Mich. 13. Iac. rotulo 1134. Action upon the Case reciting the Statute of 1.
Iac. against Invocation c. for these words The Devil appeareth to thee every night in the likeness of a black Man riding on a black Horse and thou conferrest with him and whatsoever thou dost ask he doth give it thee and that is the reason thou hast so much money and this I will justifie Judgement for the Plaintiff In Trover Judgement by Nihil dic and Exception taken to the Declaration to stay the filing the Writ of Inquiry because no day of the conversion was in the Declaration and by two Judges held naught Mich. 14. Iac. PArker versus Parker Hill 12. Iac. rotulo 426. In Trover after a Verdict it was moved in Arrest of Judgement that the imparlance Roll was entred with Spaces for the possession and conversion but both those Spaces in the Issue were filled up and held good The Imparlance was entred Mich. 12. Iac. rotulo 547. WHitepain versus Cook Pasch 12. Iac. For words Thou art a Rogue and I will prove thee a Rogue no Judgement STone versus Bates A man may well incourage one that was robbed to cause the Felon to be indicted and accompany him to the Assizes and this shall be lawfull for to do without incurring the danger of an Action upon the case upon conspiracy but if he knew that he was not robbed then he is in danger of the Action upon the case COpe and his Wife administratrix Plaintiffs versus Lewyn Trin. 12. Iac. rotulo 1714. An Action upon the case brought upon a promise made to the Intestate and in the Court omits to shew the Administration and after Triall that Fault moved in Arrest of Judgement and the whole Court was of opinion that he should not have his Judgement for it did not appear that he was Administrator for at the Common Law no Administration lay but the Ordinary ought to have the Goods HArvey Attourney versus Bucking Mich. 12. Iac. rotulo 842. Action of the case for slanderous words He meaning the Plaintiff shewed me first a Bill of fourty pounds without a Seal meaning the said Bill by the said E. as aforesaid sealed and delivered and afterwards he shewed me the same Bill with a Seal and he meaning the Plaintiff hath forged the Seal of the same Writing meaning the Seal of the said Bill by the said E. as aforesaid sealed and delivered The Defendant traverses the words and a Verdict for the Plaintiff and it was alleadged in Arrest of Judgement that the Declaration was naught for that it did not directly appear that there was any communication between the Plaintiff and Defendant concerning the Bill but onely in the inuendo which will not maintain the Action and Judgement arrested MOrton versus Leedall Hill 10. Iac. rotulo 1783. Action upon the case for these words He is a lying and dissembling Fellow and a mainsworn Fellow And a Verdict for the Plaintiff And afterwards it was moved in Arrest of Judgement that the Action would not lie but at length Judgement was given for the Plaintiff And Serjeant Hutton cited the like case adjudged in t Barnes He is a mainsworn Villain 〈◊〉 Skipwash SKipwash versus Skipwash Hill 14. Iac. rotulo 3472. Action upon the case that whereas the Defendant in consideration that the Plaintiff would marry one A. B. did assume to pay the Plaintiff twenty pounds when he should after the Marriage be thereunto requested The Plaintiff alleadges no special Demand and that Fault was moved in Arrest of Judgement Hobart and Wynch were for the Plaintiff Warburton for the Defendant JOtham versus Ball Hill 12. Jac. rotulo 1920. Action upon the case for slanderous words Videlicet Your Master Euseby meaning the Plaintiff is a Rogue a Rascall and Forger of Bonds the Plaintiff laid a Colloquium between the Defendant and one R. G. And after Verdict moved in Arrest of Judgement for that it did not expresly appear that the said R. G. at the time of speaking the words was Servant to the Plaintiff and Judgement was stayed by the Court. COddington versus Wilkin for words Trin. 12. Iac. He is a Theif and why will you take a Theifs part spoken 1. Martii 10. Iac. The Defendant justifies the words because the Plaintiff stole Sheep The Plaintiff by way of replication sets forth a general Pardon granted such a time and further saith that if any Felony were committed it was before the general Pardon made and shews himself to be a Subject and no person excepted in the Pardon The Defendant demurs The Court were of opinion that by the Pardon both the Punishment and Fault were taken away and that the wrong was done to the King by the Common Law and the King being the supreme Head if he pardons the party is cleared of the wrong As if a Villain be infranchised he from thenceforth is no Villain Note if a man upon good consideration promise to become bound to another by his Obligation to do an Act and if he do not become bound Action upon the case will lie against him and the Plaintiff is not bound to tender him an Obligation but the Defendant hath took it upon himself to do it RIchards versus Carvamell Action of the case brought and counts for non-payment of money at the Plaintiffs next coming into the County of Somerset and avers that such a day he came into the County of Somerset Videlicet apud T. in Com. Somerset and that the Defendant though often requested hath not paid And Exception taken because the Plaintiff did not alleadge in his count that he gave notice to the Defendant when he came into the County of Somerset but not allowed and Judgement given for the Plaintiff And note when a man assumes to pay money or do any thing upon condition the Defendant may take Issue upon the condition and needs not plead Non assumpsit but if he pleads Non assumpsit then he confesses the performance of the condition which mark AVstin versus Jarvis Trin. 13. Jac. rotulo 2180. The Plaintiff declares that such a Day and Year he bought of the Defendant a Horse for a peice of Gold of the value of 22. s. by him to the Defendant then in hand paid and for a 11. l. to be paid to the Defendant at the Day of Death or Marriage of the Plaintiff which should first happen for payment of which 11. l. the Plaintiff should bring to the Defendant one sufficient man to be bound together with the Plaintiff to the Defendant the Defendant in consideration thereof assumes to deliver the said Horse to the Plaintiff when he should be thereunto requested and the Plaintiff avers that such a Day he brought the Defendant one sufficient man Videlicet I. A. de B. Yeoman to be bound together with the Plaintiff to the said Defendant for the payment of the said 11. l. and shews that he requested the Defendant to deliver the said Horse yet the Defendant hath not delivered
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
and determined for he prosecuted the Suit in anothers Right and is but a Minister of the Ordinary and then when the Ground of the Suit is over-thrown to wit his Commission he hath no Authority to proceed further and the Execution issued without Warrant And the like Law upon a Judgement had upon an Administrator the second Administrator shall not have Execution by it for he hath no privity to the Record which mark ANdrews versus Robbins Trin. 4. Jacobi The Plaintiff brought Debt upon an Obligation made to him as Sheriff with a Condition that the Defendant should appear and Crook said that the Defendant had pleaded his Appearance and had omitted to say as it appears by the Court and it was held a grosse Fault but the Record being perused it appeared to be otherwise for the Case was that the Defendant was obliged to make an Obligation to appear in the Kings Bench at a day prefixed in the Writ and that the Defendant pleaded there was no day prefixed in the writ for his Appearance and Crook moved that it was no Plea for the Defendant was estopped to which the Court agreed that he was estopped and Williams said that if a man be bound to pay a hundred pounds that I. S. owes to him he cannot plead that I. S. doth not owe him a hundred pounds and Tanfield said if it were to pay all sums that I. S. owed him he isconcluded so it is held 3 Eliz. Dyer And the Court commanded Judgement to be entred for the Plaintif if no cause shewed tothe contrary such a day JAckson versus Kirton Trin. 4. Jacobi In Common Pleas an Action of Debt brought upon an Obligation the Condition was that if A. would render himself to an Arrest in such a place c. The Defendant pleads that by Priviledge of Parliament those of the Parliament and their necessary Servants ought not to be arrested by the space of forty Dayes before the Parliament nor sitting the Parliament nor forty Dayes after and sets forth that A. was a Servant to such a man of the Parliament at such a time so that he could not render himself to be arrested to which the Plaintiff demurrs and the opinion of the Court was for the Plaintiff for A. might render himself and let it be at their perill if they will arrest him MArkham versus Jerux Hill 4. Jac. Action of Debt brought upon a Bond with a Condition to stand to the Award Arbitrement c. of Master Porley of Grays Inn about the Title of one Copy-hold Tenement M. P. awarded c. that the Defendant should pay to the Plaintiff six pounds upon the 21 May 3 Jac. at such a place to wit in the Church Porch of C. and further awards that the Plaintiff by his Deed should release to the Defendant his whole Right c. upon the said 〈◊〉 Day of May at the same place upon the payment of the Money and in another Clause of the Award he awarded that the Plaintiff should make further Assurance to the Defendant for the extinguishing of his Title as should be advised c. And Yelverton moved that this Arbitrement was void and is in a manner no Award for it is repugnant and insensible for although it be certain at what Day the Defendant should pay the six pounds yet it doth not appear when nor upon what Day the Plaintiff should release to the Defendant for there is no such first Day of May in the whole Award and it is not bound or tied to any year of the King so that it is altogether incertain and although it may be collected that the Arbitrator did intend the 21. Day of May because it is appointed to be made upon the payment of the six pounds which was the 21. May yet it is not expressed but onely by way of inference and implication and it was objected that admit the Award to be void in that part yet it is good in the residue which is to be performed by the Plaintiff to wit the making of better assurance to which Yelverton answered that all the Clauses in one Award are material and the Clause of further assurance depends upon the repugnant Clause of the Release to be made for the Award appoints that the Release is to be made upon the said first Day of May whereas no such Day in the whole Award shall be the first assurance and the assurances which were to be made by the following Clause were in the intention of the Arbitrator to be for the strengthning of the first Release which was granted and the Court said there was much difference between Wills and Deeds and between Arbitrements for Deeds c. shall be construed according to the intent of the parties and upon the words to be collected out of the Deeds but an Award is of the nature of a Judgement and Sentence in which ought to be plainnesse and no collection of the intent and meaning of the Arbitrators for how it ought to be his Judgement and not the Judgement of another upon the words of the Arbitrator and Tanfeild said it had been adjudged that where the Arbitrator did award that one of the parties should become bound to the other in the summ of and no summ in certain but a space left for the summ that it was void and if an Arbitrement be void in one Clause although it be good in all Clauses yet it is in Law no Award for a Judgement ought to be plain certain and perfect in all things but if the Arbitrators award that one of the parties and J. S. an Estranger shall do such a thing that is good as to the party who is within the Submission and void onely to I. S. the Estranger 19 E. 4. ATkins versus Gardiner Pasch 5. Jac. The Plaintiff being President of the Colledge of Phisicians in London brought an Action of Debt against the Defendant for practising Phisick upon the Charter made to them by H. 8. that none should practise Phisick in London nor within seven Miles thereof except such as were authorised by them and gives them Authority to impose Fines upon such as shall practise Phisick which Charter was confirmed by Act of Parliament in 14 H. 8. and he obtained Judgement upon the Statute to recover a summ for himself and the Colledge and before Execution the President died and whether the Successor should have Execution and 8 E. 1. was cited and divers other Books to that purpose STamford versus Cooks Pasch 5. Jacobi An Action of Debt brought upon an Obligation with a Condition that the Defendant should seal such Assurances as should be devised by the Plaintiff and that the Assurance should be of Copy-hold Land and the Plaintiff devised that the Defendant should seal a Letter of Attorney made to one to surrender the Copy-hold for him and also seal one Bond for the injoying thereof and the Plaintiff offered these Writings to the Defendant
forth divers payments by him made and amongst other payments shews that he had payed to M. Fawn named in the Condition sixty pounds for a Legacy due by the Will of the said Ed. A. the payment of which sixty pounds was disallowed by that Court and by the Order of the Chancery sixty five pounds paid for not allowing the first sixty pounds to Ed. A. the Son which sixty and five pounds the Defendant had not repaid though thereunto requested and so he was damnified to which Replication the Defendant demurrs and the opinion of the whole Court after a great Debate was against the Plaintiff for the Plaintiff in his Replication had alleadged two Causes to inforce his Damage the first was that the Plaintiff in his Answer in the Chancery had alleadged the payment of sixty pounds to M. F. for a Legacy due to her by the Will and that such Allegation was rejected by the Court of Chancery and neither of those matters are certainly alleadged but by way of Implication and not expresly for he ought to have shewn that a Legacy of sixty pounds was given to M. F. by the Will of E. A. for although the Will of E. A. is recited in the Condition in the Date against which Recitall the Defendant may not be admitted to say that he made no such Will yet the Legacy given to M. F. is not recited in the Condition if not in the General against which the Defendant may take a Traverse that Eáw. A. did not bequeath such a Legacy of sixty pounds and upon that a good Issue may be taken And secondly the Plaintiff sayes that the payment of the said sixty pounds was disallowed by the Court of Chancery and doth not appear in the Replication where the Chancery was at that time to wit whether at Westminster or at any other place and it is issuable and triable by a Jury whether any such Order of Chancery were made or not for the Orders there are but in Paper and are not upon Record to be tried by Record but by a Jury and the Plaintiff perceiving the opinion of the Court against him prayed that he might discontinue his Suit which was granted by the whole Court but Quaere of this it being after a Demurrer WEaver versus Clifford Pasch 44. Eliz. rotulo 453. The Plaintiff brought an Action of Debt upon an Escape against Clifford and declares that one A. was bound to the Plaintiff in one Recognisance of a hundred pounds to be paid at a Day at which Day A. made Default of Payment and the Plaintiff sued out two Scire fac and upon the second Scire fac a Nihil was returned and the Plaintiff had Judgement to recover and afterwards he sued out a Levari fac and a Nihil being returned the Plaintiff prosecuted a Capias ad satisfaciend by vertue of which Writ the Defendant being then Sheriff took the said A. and afterwards at D. in the County of S. permitted him to go at large to which the Declaration the Defendant demurred Damport for the Defendant and he shewed the cause of the Demurrer to be because a Capias upon the Recognisance did not lie and he divided the Case into two parts first whether a Capias would lie in the Case and secondly whether the Sheriff would take the Advantage of such a naughty Processe and as to the first it seemed to him that a Capias would not lie because it appeared by Herberts 5. Repub. fol. 12. And Garnons Case 5. Rep. fol. 88. that the Body of the Defendant was not liable to Execution for Debt by the Common Law but onely in Trespasse where a Fine was due to the King or that he was accountant to the King and the Plaintiff could have no other Processe but a Fieri facias within the year and if the year were passed then he might have a new Original in Debt But now by the Statute of Marlbrig cap. 23. And Westm. 2. cap. 11. a Capias is given in Account and by the 25 E. 3. c. 17. Capias is given in Debt and Detinue and by the 19 H. 7. c. 9. the like Processe is given in Case as in Debt and Trespasse and the 23 H. 8. c. 14. a Capias is given in a Writ of Annuity and Covenant but Statute gives a Capias in this Case and therefore it remaines as it was at Common and by that it would not lie which is also apparent by the Recognisance for that is that if the Debt shall be levied of the Goods and Chattels Lands and Tenements c. and doth not meddle with the Body and by an expresse Authority 13 14 Eliz. Dier 306. Puttenhams Case it is held that the Chancery hath no Authority to commit the Defendant to the Fleet upon a Recovery in a Scire facias upon a Recognisance because the Body is not liable And for the second point it seemed to him that the Sheriff should take Advantage of this which should be as void and as null whereof a stranger may take benefit and to prove this he took this Difference when a Processe will not lie and where it is disorderly awarded as if an Exigent be sued out before a Capias or an Execution before Judgement for if that Processe be originally supposed there the Processe is but erroneous in Druries Case 8. Rep. 142. 34 H. 6. 2. b. But if the Action it self will not maintain the Processe as a Capias in Formedon there that Processe is as void and null and he took another Diversity when the Capias is taken by the Award of the Court when Judgement is given that he shall recover for in that Case it shall remain good untill it be reversed because it is the Act of the Court and so is Druries Case to be intended but if the party himself take it it is at his own peril as here it is for the Plaintiff hath onely pleaded that he prosecuted c. which is as void to the party who sued it out and he shall have no benefit of it but the Sheriff shall not be punished for false Imprisonment because he is not to examine the illegality or validity of the Processe for the 11 H. 4. 36. If a Capias issue out without any Original and the party be taken the Sheriff shall not be punished and for these Reasons he prayed Judgement for the Defendant Noy was for the Plaintiff and he agreed that at the Common Law no Action did lie in this Case as it hath been said but he was of opinion that this Case is within 25 E. 3. cap. 17. for the intention and drift of the Statute was to give speedy remedy to recover Debts and the Action is all one in the eye of the Law as if it had been done by Original which in the equity of the Statute And a Capias lies upon a Recognisance against a Surety for the Peace and upon a Scire facias against the Bail in the Upper Bench. As to
Carr. The Tenant in Dower before the value inquired of and Damages found brought a Writ of Error and by the opinion of the whole Court a Writ of Error would not lie for the Judgement is not perfect untill the value be inquired upon The Demand in Dower was of the third part of two Messuages in three parts to be divided and the Judgement was to recover Seisin of the third part of the Tenements aforesaid with the Appurtenances to hold to him in severally by Meets and Bounds and adjudged naught because they are Tenants in common and the Judgement ought to be to hold to him together and in common but if it had been in three parts divided it had been good Actions in Ejectment ALlen versus Nash Hill 5. Jacobi rotulo 719. The Plaintiff brought an Ejectione firme and a special Verdict upon a Surrender of Copy-hold Land which was to the use of the second Son for Life after the Death of the Tenant and his Heirs and it was adjudged not to be good in a Surrender for though it be good in a Will yet Implication is not good in a Surrender and in Copy-hold Cases a Surrender to the use c. this no use but an Explanation how the Land shall go if the Lord grant the Land in other manner then I appoint it is void if there be found Joynt-tenants and one Surrender to the use of his Will it was a Breach of the Joinder and the Will good EYer versus Bannaster Trîn 16. Jacobi rotulo 719. The Plaintiff brought an Ejectione firme and declared upon a Lease made by Ed. Kynaston to which the Defendant pleads not guilty and the Plaintiff alleadges a Challenge that the Wife of the Sheriff is Cosin to the Plaintiff and desires a Venire facias to the Coroners and the Defendant denied it and so a Venire was made to the Sheriff and at the Assises the Defendant challenges the Array because the Pannell was arrayed by the Sheriff who married the Daughter of the Wife of the Lessor and note the first Challenge was made after the Issue joyned and at the Assises the Defendant challenged as above and a demurrer to it and Hutton held that a Challenge could not be after a challenge except it were for some cause that did arise after the challenge made and that the party ought to rely upon one cause of challenge though he had many causes observe the Defendant could not challenge the Array untill the Assises but Husband held that a Challenge might be upon a Challenge but this challenge was adjudged naught by all the Judges HIll versus Scale Trin. 16 Jacobi rotulo 5. 18. the Plaintiff brought an Ejectione firmae and declares upon a Demise made to the Plaintiff by J. C. bearing date the first of January anno 15. and sealed and delivered the twelfth of January following to hold from Christmasse then last past for two years the Jury found a speciall Verdict and found the Lease and a Letter of Atturney to execute the Lease in this manner that the Lessor was seised of the Land in Fee and being so seised he made signed and sealed an Indenture of a Demise of the said Tenements and found it in haec verba this Indenture c. and they further found that the Lessor the said fifth day of January did not deliver the said Indenture of Demise to the Plaintiff as his Deed but that the Lessor the said fifth day of January by his writing bearing Date the same Day gave full power and authority to one C. to enter into all the premises and to take possession thereof in the name of the Lessor and after possession so taken to deliver the said Indenture of Demise to the Plaintiff upon any part of the premises in the name of the Lessor and find the Letter of Atturney in haec verba To all c. whereas I the said J. C. by my Indenture of Lease bearing date with these Presents have demised granted and to Farm let c. for and during the Term of two years c. and they further find that the said C. such a day as Atturney to the Lessor by vertue of that writing did enter into the Tenements aforesaid and took possession thereof to the use of the Lessor and immediately after possession so taken the said C. did deliver the said Indenture of Demise upon the Tenements as the Lessors Deed to the Plaintiff to have c. and the doubt was because the Lessor in the Letter of Attorney and said that whereas he had demised and if it were a Demise then the Letter of Attorney was idle but notwithstanding the Court gave Judgement for the Plaintiff WEeks versus Mesey An Ejectione firmae brought against two and one of them was an estranger and was in the house and the principall would not appear and the other appeared and pleaded non informat and the Court was acquainted with the proceedings and the Plaintiff prayed an habere facias possessionem and the Court told the Plaintiff that by that Writ and recovery he could not remove him that had Right when a Lease is made to bring an Ejectment of Land in divers mens hands then they must enter into one of the parcells and leave one in that place and then must he go unto another and leave one there and so of the rest and then after he hath made the last Entry there he sealeth and delivereth the Lease and then those men that were left there must come out of the Land and this is a good executing of the Lease and Pasch the ninth of James the Court held that an Ejectment would not ly of Common pasture or of Sheep-gate BEamont versus Cook Trin. 13 Jacobi An exception taken in Ejectment because the Originall was teste the very same day that the Ejectment was made and adjudged good by the whole Court and one Goodhall brought an originall in Ejectment against Hill and three others and the Plaintiff counts against three of the Defendants and no simulcum against the fourth and this matter was moved in arrest of Judgement And the Judgement was stayed by the whole Court COronder versus Clerk Hill 10 Jacobi rotulo 3315. Action upon an Ejectment brought the Jury found it specially upon a Devise the words of the Will were to my right Heires Males and posterity of my name part and part like the question was who should have the Land and the Court held the Land must go to the Heire at the Common Law and not according to the words of the Will because they cannot consist with the grounds of Law a Will must be construed in all parts the brother cannot have it by the Devise because he is not Heir and the Daughters cannot for they are not Heirs and posterity and therefore neither of them could have it because they are not Heirs and posterity because they that take it must be Heir and posterity
first had the Free hold granted to him by the Lord of the Mannor And then he leavied a Fine and five years passe whether he in the Remainder be Barred or no those whose estates are turned to rights either present or future are meant by the Statute to be barred of a Copy-hold for years be put out of possession and a Fine Leavied and no entry by him he is barred by the Statute by the Bargain and Sale he in the Remainder is not put out of possession if a man make a Lease to begin at Easter next and before Easter a Fine is leavied and five years passe this Fine will not barr because at the Leavying of the Fine he could not enter for then his right was future if the Lease had been in possession and the Lessee had never entered he had been barred A Lease for years Remainder for years if the first man taketh for life the first estate is not so determined but that the Remainder standeth if a Copy-hold surrender for life there passeth no more from him then so much as maketh the estate and no more and the rest remaineth in him CRantley versus Kingswel Pacsb 15 Jacobi rotulo 710. The Defendant makes cognisance as Bailiff of Kingswell his Father for Rent service due to his Father at such a Feast And shews that Cramley holds of him by fealty and rent paiable at such a Feast and for Rent due at such a Feast made Cognisance the Plaintiffe in Barr saies that he at the said Feast offered the Rent upon the Land and that no body was there to receive it And the Plaintiffe saith that afterwards he demanded the Rent upon the Land and the Plaintffe made a Replevin pretending the Lord should make a personall demand but the whole Court was against him And Warburton took acception against the pleading the Tender because he saith that he offered the Rent to pay when as he was not present And the question was whether the Lord for a Rent service did not demand it at that day whether he can distrain without a demand of the person and held he might for the Tenant is yet bound to tender and the Land is debter and the Lord may resort thither when he pleases to demand the Rent upon the Land but if he tender his Homage and the Lord refuses it he cannot distrain without a demand of the Person and Judgment for the Defendant STokes versus Winter Trin. 15. Jacobi rotulo 2242. In Replevin the Defendant makes cognisance as Bayliff to Tenant for life to whom the Annuity was granted for life to begin by will after the death of the devisor And alledges the death of the devisor but not the day of the death after whose death the said H. was seised of the yeerly rent aforesaid in his demesn as of his Free-hold for terme of his life by vertue of the devise aforesaid And because seven pounds of the Rent aforesaid for one yeer ended at the Feast c. and by the space of 14. dayes then next following were behinde to the said T. the said time with c. the said T. as Bayliffe of the said H. doth make cognisance of the taking of the cattell aforesaid in the said place in which c. for the said 7 li. for the yeerly Rent aforesaid being so behind c. and issue was taken whether the said I. at the time of his death was seised of the said six Acres of Land in his demesne as of Fee as c. And after tryall exception was taken to the Advowry because it was not alledged that the annuity at such a Feast after the death of the devisor was behinde but it was over-ruled because there is so much expressed and Judgment given for the Defendant HVmfrey versus Powell Trin. 12. Jacobi rotulo 2791. Replevin wherein the Defendant avows for one Annuity granted to the Defendant to whom the office of Catorship of the Church of Roffen in Kent was granted by the Dâ—an and Chapter of that Church for life with an Annuity of 6. pounds for the exercising of that Office with a clause of distresse by vertue of which grant he was possessed and avowes for the Annuity and avers that it was an ancient Office pertaining to the Dean and Chapter of Roffen and doth not aver that the Annuity was an ancient Annuity The Defendant pleads the Statute of the 13 Eliz that all Devises Donations Grants c. made by any Master and Fellows of any Colledge Dean and Chapter c. other then for the terme of twenty and one yeers or three lives from the time of this Devise c. should be totally void And shews that the old Dean died and another was elected And a Demurrer thereupon And Judgement that the Grant was void HYen versus Gerrard Mich. 13. Jacobi rotulo 752. The Defendant in Replevin avows that one being seised in Fee made a Lease to him and avows for Damage feasant The Plaintiffe in Barr pleads and maintains his Declaration and traverses the Lease upon the Avowant demurrs and adjudged a goodtraverse IEnyx versus Applefourth Trin. 17. Eliz rotulo 543. The Defendant avows for a Rent charge the Plaintiffe in Barr pleads that the Defendant had presented a Writ of Annuity And that he had an Imparlance thereunto And demands Judgement if the Defendant did well make cognisance to the taking of the cattell in the said place in which c. in name of a distresse for the rent aforesaid by vertue of the said writing as Bayliffe of the said R. the said Writ of Annuity being prosecuted c. upon the said writing in form aforesaid c. And a Demurrer thereupon and Judgement by the whole Court for the Plaintiffe it is not needfull to lay a prescription to distrain for an Amerciament in a Court Leet but it is otherwise for an Amerciament in a Court Baron by the whole Court DArcy versus Langton The Defendant avows for a Rent charge and for a Nomine penae and no mention made in the Avowry of the Rent charge and the Plaintiffe was non-suit and afterwards in Arrest of Judgement this matter was alledged and at first held to be a good exception but afterwards Judgement was entred an Advowry is in the nature of a Declaration if that be vitious no Judgement can be given for the Advowant TRin. 9. Jacobi Regis rotulo 2033. Replevin for the taking of Cattell at Andover in a certain place there called R The Defendant makes cognisance for damage feasant the Plaintiffe saies that he was seised of the Messuage c. in C. in the Parish of A to which he claimed Common of Pasture And issue taken upon the prescription and a Venire Facias of A. and exception taken because it was not tryed of C. and A. or of the Parish of A. but it was adjudged to be good TRinbone versus Smith Trin. 12. Jacobi rotulo 626. In Replevin foure and twenty were returned upon the
village is in question or could come in Issue yet it was resolved by the whole Court but him that those of the village of Bail might well know whether the Plaintif being an inhabitant within the village in which the Leet was were a chief Pledge at the Court or no for to have cheif pledges doth properly belong to a Leet which Leet is within the village and therefore they of the Mannor cannot have so good knowledge of the matter as they of the Mannor and village together and therefore they all ought to have been of both as in the Case of Common or a way from one village to a house in another village this ought to be tried of both villages and so also of the Tenure of Land in D. held of the Mannor of Sale the triall must be as well of the village where the Land lies as of the Mannor of which the Land is holden as it was adjudged Hill 45. El. in the then Queens Bench in the Case between Lovlace and and Judgement was reversed and see 6 H. 7. and Arundels case in my Lord Cooks Reports BVrglacy versus Ellington Burglacy brought a Replevin against Ellington for the taking of his cattell c. the Avowant pleads that one W. B. was seised of the place in which c. in his Demesne as of Fee and being so seised died by reason whereof the Land descended to one Crist. his Daughter and Heir who took to Husband the Avowant the Plaintiff in his Barr to the Avowry confesses that W. B. was seised and that it descended to C. who took to Husband the Avowant but he further said that the 16 of April primo Jac. the Husband and Wife by their Deed indented and inrolled did bargain and sell the same Land unto one Missenden and a Fine levied by them and that M. the 30 of James bargained and sold it to F. M. in Fee and he being so seised licensed the Plaintiff to put in his cattell the Avowant replies if in the said Bargain and Sale made by the Husband and Wife a Proviso was contained that if the said Ellington should pay one hundred pounds a year after then c. and pleaded the Statute of 13 Eliz. of usury with an averment that the profits of the Land were of the value of twelve pounds by the year the Plaintif rejoyned that true it is there is such a clause in the Indenture but he further said that before the sealing of the Indenture it was agreed by word that the said Ellington should have and receive the profits and not the Plaintif and thereupon the Avowant demurres and the Case was thus Ellington bargains his Land to M for the payment of one hundred pounds a yeare after to be paid and that the Bargainee should have the profits the bargainor enters as upon a void Sale because of the statute of usury for by the Proviso â—he is to have the hundred pounds and ten pounds for the forbearance and by the Law he is to have the profits and the which did amount above ten pounds by the hundred the bargainee to avoid the usury pleaded an agreement by word before the sealing of the Bargain and Sale and the question arising upon this was if the Bargainee might plead this verball agreement for the avoiding of the Deed which did suppose the contrary and Moore of Lincolns â—nne counsell was of opinion that he could not put that maxime that every thing must be dissolved by that by which it is bound and his whole argument depended upon that and he cited divers Cases as 1 H. 7. 28. 28 H. 8. 25. 1 Eliz. Dier 16. 9. Rutlands Case 5 Rep. and Cheyney 6 Case there but the whole Court without any argument were of opinion that he might plead the verball agreement and avoid the usury and first they all agreed that when a Deed is perfected and delivered as his Deed that then no verball agreement afterwards may be pleaded in destruction thereof as it is in the Cases put but when the agreement is parcell of the Originall contract as here it is it may be pleaded and secondly otherwise it would bring a great mischief being the custome so to do by word but if it had been expressed within the Deed that the Bargainee should have the profits and that it was delivered accordingly that no agreement or assignment of the profits could now avoid it for it is an usurious contract and therefore the whole court gave Judgement for the Plaintif that he might well plead the agreement Actions of Trespass and Battery JOhnson versus Turner Trin. 44 Eliz. Trespasse brought for breaking the Plaintifs house and the taking and carrying away his goods the Defendant justifies all the Trespasse the Plaintif as to the breaking of the House and taking the goods and the matter therein contained demurres upon the Defendants Barr the Defendant joins in demurrer in this form to wit because the Plaintif aforesaid as to the breaking of the House and taking the goods is sufficient demands Judgement and Judgement given in the Common Pleas for the Plaintiff and a Writ to inquire of Damages upon which Damages are assessed for the breaking of the House and taking the goods and whether the subsequent words to wit and the matter therein contained go to the whole matter in the Barr to wit to the carrying of the Goods away also for when the Defendant joyned in Demurrer with the Plaintiff he joyned specially to wit to the breaking of the House and taking the Goods but nothing of the carrying them away and so as to the carrying of them away nothing is put into Judgement of the court yet the Writ to inquire is for the whole and the Judgement also and the carrying of the Goods away being parcell of the matter and for which greater Damages are adjudged and that being not put into the Judgement of the Court by the Demurrer therefore the Judgement is erronious for there is a discontinuance as to the carrying of the Goods away which is part of the matter and this businesse concerned Mr. Darcy of the privy chamber concerning his patent for Cards PVrrell versus Bradley Pasch 1 Jacobi The Plaintif declares in Trespass wherefore by force and Arms such a day the Defendant did assault him and one Mare price six pounds from the person of the Plaintiffe then and there did take and Yelverton moved for the Defendant in arrest of Judgement and the Declaration was not good for the Plaintif did not shew any property in the Mare for he ought to have that it was his Mare or the Mare of the Plaintif for as it is laid in the Declaration the words may have two intendments that the property of the Mare was to the Defendant and then the taking was lawfull or that the property was in the Plaintif and then the taking was wrongfull and it being indifferent to whether it shall be taken most strongly against the Plaintif for his
the remainder to John D. bastard in Tail the Remainder to the Defendant Ro. Duckmonton in Fee the woman married with Ro. D. the Defendant the Term expired Jo. D. Tenant in Tail in remainder releases to the Husband and whether this should alter the estate of the Husband he being Tenant at sufferance was the question and adjudged by the whole Court that the Release was void and it was cheifly void because the Release was made to him in the Remainder to take effect as upon the Remainder and there was no privity and he had but a bare possession and no Freehold and 10 Eliz. Dier Lessee for years surrenders and afterwards the Lessor releases to him and held a void Release for the reason aforesaid and 31 and 32 Eliz. it hath been adjudged between Allen and Hill where a Devise was made to the woman for life if she would inhabite and continue in the house and he went and inhabited in Surrey and the Heire released to her and it was held void because she was but Tenant at sufferance and so no privity but Yelverton and Tanfield that such estate for life was not determined without Entry and Yelverton Justice demanded that when the Husband continued in possession after the Lease determined whether he should be in the Right of his Wife and so remain Tenant at sufferance whether he should be in his own Right or be as an intruder Disseisor and then the release made to him was good but no answer was given to him but Judgement was given that the release was void and Fennor put this Case Tenant for life remainder in Tail remainder in Fee he in the remainder in Fee released to Tenant for life a void release because of the mean remainder in Tail and cited 30 E. 3. and no answer was given to it and Yelverton said that if Tenant for life release to him in the remainder in Fee it is void because it shall be void as a surrender and this word release shall not recite as a surrender HOldesden versus Gresill Mich. 5 Jacobi An Action of Trespass brought for breaking the Plaintiffs Close called B. at L. and for taking of two Conies the Defendant to the whole Trespasse but the entring in the Close pleads not guilty and as to the Close justifies because he Common in the Close called B. for five Cowes and because very many Conies were there feeding and spoiling the Common the Defendant in preservation of his Common entred to chase and kill the conies to which the Plaintiff demurred in Law and Judgement was given that the justification was naught for a Commoner cannot enter to chase or kill the Conies for although the owner of the Soil hath no property in the Conies yet as long as they are in his Land he had the possession which is good against the commoner for if the Lord surcharge the common with Beasts the commoner cannot chase them out but the owner may distrain the Beasts of an estranger or dammage feasant or chase them out of the common for the stranger hat no colour to have his Beasts there and also conies are a matter of profit to the owner of the Soil for Housekeeping and therefore because it appears that the cause of Entry was to chase and also to kill which are not lawfull as against the Lord who is Plaintiff therefore the matter of the justification is not good for if the Lord surcharge the Soil with conies the commoner may have an Action of case against him for that particular dammage which is a sufficient remedy against the Plaintiff upon a full and deliberate considera-of all the Judges JEnnings versus Haithwait Mich. 5 Jacobi An Action of Trespass brought to which the Defendant pleaded not guilty the Jury found the Defendant Vicar of D. and that he such a day leased his vicaridg to J. S. for three years rendring rent which J. S. assigned one Acre parcell thereof to the Plaintif and the Defendant was absent severall quarters in one year to wit sixty dayes in every quarter but they did not find the Statute of 13 Eliz. adjudged for the Defendant for the Statute of the 13 Eliz. is a generall Law for although it extends but to those which have cure of Souls yet in respect of the multiplicity of Parsonages and vicaridges in England the Judges must take notice of it as a generall Law and adjudge according to the said Statute and so is the Statute of the 21 H. 8. for non-residence DRewry versus Dennys Mich. 5. Jacobi An Action of Trespass brought against a man and his Wife and the Plaintif declares that they did beat one Mare of the Plaintifs and committed diverse other Trespasses and upon not guilty pleaded the Jury found that the Woman beat the Mare and for the residue they found for the Defendant and the Verdict adjudged naught by the Court for it is altogether imperfect for they have found the Woman guilty of the beating the Mare and have given no Verdict concerning that for the Husband either by way of acquittall or condemnation and the finding the Defendant not guilty as to the residue doth only extend to the other Trespasses contained in the Declaration and not to the beating of the Mare And Williams and Cooke Justices said that where a Battery is brought against Husband and Wife supposing that they both beat the Plaintif or the Mare of the Plaintif and upon not guilty pleaded it is found that the Woman onely made the Battery and not the Husband this Verdict is against the Plaintif for it now appears that the Plaintifs Action was false for the Husband in this case shall not be joyned for conformity onely and there is a speciall Writ in the Register for this purpose and is not like a Battery charged upon I. D. and I. S. for there one may be acquitted and another found guilty and good because they are in Law severall Trespasses SAnds and others versus Scullard and others Mich. 5. Jacobi The Plaintiffs brought an Action of Trespass against the Defendants for entring their Close and Judgement was entred against Dawby one of the Defendants by nil dicit Scullard pleaded not guilty whereupon a Venire facias was awarded upon the Roll between the parties as well to try the Issue as to inquire of the damages And the Plaintiffs took their Venire facias to try the Issue between the two-Defendants and the two Plaintiffs And according to that was the Habeas Corpus and Distringas but the Plaintiffs knowing Dawby to be dead took their Record of Nisi prius against Scullard onely and he was found guilty And Yelverton moved in Arrest of Judgement and shewed the Venire facias and that there was no Issue joyned between the Plaintiffs and Dawby for Judgment was given against him by Nil dicit and the Writ ought to have made mention onely of the Issue between the Plaintiffs and Scullard And their ought to have been
because he doth not shew from what place nor to what place the passage or way is for although a way be in grosse yet it ought to be bounded and circumscribed to some certain place especially when it appears to ly in usuage time out of mind for that ought to be in a place certain and not in one place to day and another to morrow but constant and perpetuall in one place Thirdly the Plea in Barr is not good because he doth not shew what manner of passage it was whether a Foot-way or Horse-way or Cart-way and therefore it is altogether incertain and Judgement given accordingly TRoughton against Gouge Mich. 7 Jacobi An Action of Trespass brought for entring into the Plaintiffs Close called Wild Marsh and for mowing and cutting five Loads of hay to his damage of c. the Defendant saith that the Close aforesaid did contain twelve Acres whereof a long time before the Trespasse done and at the time the Mayor of c. of Lincoln were seised in Fee and being so seised Leased it to the Defendant for years before the Trespass committed by reason whereof he entred and was posaessed untill the Plaintiff claimed by Deed of the Maior c. for life whereas nothing passed and entered and the Defendant the time aforesaid re-entred as it was Lawfull for him to do the Plaintif replied that the Close in which the Trespass is supposed to be done contained one Acre and three Roods and abutts it East West North and South and one of the abutnals were upon the twelve Acres mentioned in the plea in Barr and concludes it is another Close the Close mentioned in the Plea in Barr containing twelve Acres whereupon the Defendant demurres and the Court were of opinion at the first opening the matter that the replication was not good because it answers not to the matter supposed in the Barr for when the Plaintiff in his Declaration gives the place a certain name as he hath and the Defendant by his Plea in Barr agrees the place as here he doth to wit that the Close aforesaid to wit Wild Marsh is the inheritance of the Mayor c. and he as Lessee to them for years makes a Title to himself the plaintiff ought to answer to the Title or avoid it which he doth not by his replication for the plaintiff by that indeavors to assign a new place which he cannot do when they are agreed of a place before and therefore he ought to have pleaded that there were two Closes called Wild Marsh the one containing twelve Acres as the Defendant had alledged and the other containing one Acre and three roods whereof the Plaintiff was seised and that the Close where the Plaintiff supposed the Trespass to be committed and the close called Wild Marsh contained one Acre and three roods which mark and see 21 E. 4. LEe against Atkinson and Brooks Hill 7. Jacobi An Action of Baâ—tery brought against the Defendants at London for assaulting the Plaintiff to wit in such a Parish and Ward and beate wounded and evill intreated him to his damage of an hundred pounds the Defendant as to the force pleads not guilty and as to the residue that Atkinson the time in which c. at Gravesend in the County of Kent was possessed of a Gelding and being so thereof possessed the Plaintiff the time in which c. at Gravesend c. came to the Defendant to hire the Gelding for foure shillings for two dayes in which the Plaintiff would ride from Gravesend aforesaid to Nettlebed in the same County and from thence to Gravesend within the sayd two dayes by reason whereof the Defendant for the consideration aforesayd the time in which c. lent the Gelding to the Plaintiff who had it and in a direct line rode for the space of a mile to Nettlebed aforesaid upon the Gelding untill the Plaintif the time when c. intending to deceive the Defendant of his sayd Gelding went forth of his way to N. and rode towards London by reason whereof Atkinson in his owne right and Brook as his servant came to the Plaintif and at the same time in which c. required the Plaintif then riding upon the sayd Gelding towards London to deliver the Gelding which he refused to doe by reason whereof Atkinson in his owne right and Brook as his servant and by his command the time in which c. to repossess himselfe of the sayd Gelding layd hands upon the Plaintif and took him from the Horse back and would have taken the Gelding from the Plaintif by reason whereof the Plaintif did by force and Armes assault the Defendant and by strong hand kept the Gelding by reason whereof the Defendant did defend the possession of the Horse against the Plaintif as it was lawfull for him to doe And further say that if any damage hapned to the Plaintif it was of his owne assault and in defence of the possession of the Gelding and Traverses that he was not guilty in London or any where else out of Kent c. and the Plaintif demurs and adjudged for the Plaintif for the Battery is confessed and did arise from the evill behaviour of the Defendant for it appeared by their owne Plea in barr that the Plaintif had hyred the Gelding for two dayes and that they within these two dayes disturbe the Plaintif of his possession of the Horse and thrust him off his back which was not lawfull for the Plaintif had a good speciall property for the two dayes against all the World and although the Defendant pretends that the Plaintif had misbehaved himselfe in riding to another place then was intended yet that was to be punished by an Action of the Case but not to seise the Horse Which observe KNieveton against Roylie Mich. 8. Jacobi An Action of Trespass brought for breaking the Plaintifs Close called G. in Woodthorpe in the County of Derby to the damage of c. The Defendant pleads that the Close was known as well by the name of G. as by the name of D. And that it was and had been time out of minde parcell of the Wigenworth and pleads his freehold in the Mannour The Plaintif maintaines his Declaration and traverses that the place where c. was not parcell of the Mannor and upon this they are at Issue and a Venire facias awarded of Woodthorpe onely and moved in Arrest of Judgment by the Defendant the Verdict being for the Plaintif and urged that it was a mistryall for the Venire facias ought to have been as well of the Mannor as of Woodthorpe for although the parties be agreed that the place where the Trespass was committed lyes in Woodthorpe yet that being supposed indeed to be parcell of the Mannor of Wigenworth the Venu of the Mannor by intendment have a more perfect and better knowledge of it then the Villiage of Woodthorpe onely which was granted by the whole Court and a new Venire awarded to
his house which he could not do for the entring is one act done and ended at the going out again And therefore if he re-enter it is a new Trespass and the continuando is only alledged for the aggravation of damages 2 R. 3. 15. 10. E. 3. 10. 16. E. 3. 24. That a continuando cannot be for breaking the House but Doddridge and Haughton Justices the rest being silent were of opinion that it might be alledged that a continuando for although it might be that if hee went forth and re-entred it should be a new Trespass but if upon his first Entry he continued divers dayes it might be alledged with a continuando And see for that Mich. 38. El. in the Common Pleas fol. 118. If a Disseisee re-enter he shall have an Action of Trespass against the Disseisor with a continuando And so is Fitzherberts Nabrevium 91. L. that a continuando may be laid as well for breaking a House as eating the Grass and so is 10. E. 3. 10. and 20. H. 7. 30. by the opinion of Gapley GEush against Mynne Pach. 11. Jacobi An Action of Trespass brought wherefore by Force and Armes the Close of the Plaintiff did break c. The Defendant justified by reason there was a report that a Vermine called a Badger was found there to the great damage of the Inhabitants by reason whereof he uncoupled his Beagles in the place where c. and hunted there and found the Badger and pursued him untill he Earthed in the place where c. by reason whereof he digged the ground and took the Badger and killed him and afterwards hee stopped up the Earth again which is the same Trespass and demands Judgment whereupon the Plaintiff demurs And upon reading the Record Scamber of the Inner Temple was for the Demurrer and that the Defendant could not justifie as this case was And first he was of opinion that the Common Law warrants hunting such noysome Beasts although it be in the Lands of another because it is good and profitable to the Common-wealth that such hurtfull Beasts should be extirpated according to the 8. E. 4. 15. And Fishermen may justifie their Nets upon anothers Land 13. H. 8. 16. 22. H. 6. 49. A man may justifie entring into a house to serve a Subpaena 3. H. 6. 336. A man may justifie the entring into anothers Land with the Sheriff to help him to distrain but otherwise it is for things of pleasure as 38. E. 3. 10. B. You cannot justifie the Entry when your Hawk hath killed a Pheasant in anothers Land and so for hunting of Hares or Conies in the Free-hold of another but although the Law allows and permits such Entries as aforesaid yet the Law requires that such things shall be done in an ordinary and usuall manner as 12. H. 8. 2. A Commoner cannot digge the Land to make Trenches although it be for the benefit of another and this is confirmed and explained by the Statute of 8. Eliz. cap. 15. For although that Statute gives reward for the killing of Vermins yet the Statute further saies that it must be with consent and with reasonable Engines and Devices 2. R. 2. Barr. 237. Grant of Fish in the Pond one cannot dig the Land and make a Sluce but must take with them Nets And so if a man grant to me all his Trees in such a place I I cannot grub up the roots out of the earth if there be any other way to take them but if there be no other way then it is otherwise as 9 Ed. 4. 35. a. A grant to put a Pipe in my Land and afterward it is stopped I may dig to mend it by the opinion of the Court and therefore there being an Ordinary course to wit hunting to kill the Badger the digging for that is unlawfull and the Action will well ly Mich. 36. and 37 Eliz. 60. Nicholas Case expressely for a Fox and Fenner held it was not lawfull to break a Hedge in the pursuit MIles against Jones Pasch 11 Jac. Miles brought an Action of Trespasse against Jones wherefore by force and Arms his goods c. The Defendant pleads that the Plaintiff 5 Jacobi acknowledged a Recognisance of 100. l. at Mich. at which day he did not pay it and that two years after the Recognisance was extended upon his goods because the monies were not satisfied at the day nor at any time after the Plaintiff replies that they were paid in the sixth year of James and desires this that it may be inquired onely by the Countrey and the Defendant likewise and upon the Triall it was found for the Plaintiff and it was new moved in arrest of Judgement by Goldsmith that there was no Issue joyned for an Issue ought to be joyned upon a thing alledged by the party DOyly against White and Webb Trin. 11 Jacobi Doyly brought an Action of Assault Battery and imprisonment of his wife against White and Webb The Defendant pleads a speciall Justification to wit that in November 2 Jacobi an Action of Trespass was brought in the Common pleas by one A. against Julian Goddard and upon the generall Issue it was found for J. G. and Judgement given for her and afterwards and before Execution J. G. takes to Husband the now plaintiff and afterwards brings a Writ of Error in the Kings Bench and upon a Scire Facias against the said Julian the Judgement in the Common pleas was reversed and costs given to A. the plaintif in the Writ of Error and aftewards a Capias ad satisfaciend was directed to the now Defendants to take the said I. G. by Force of which the said Defendants took the woman of the now plaintif with an averment that the said I. G. and the Wife of the now Plaintif were one and the same person and the plaintif demurres upon this plea and Yelverton moved that this justification was not good for divers causes first when the Sherif is to execute a process he is to do it duly and upon the right person at his perill and for that see 11 H. 4. 90. b. If the Sherif take the goods of another in Execution he is a trespassor 5 E. 4. 50. a. If a Capias be to take I. S. and there be two of the same name he ought to look to take the right man at his perill and as he ought to take notice so he must pursue his authority and for this see 10. E. 4. 12. b. if a Capias issue out against I. S. the Son of A. and he take I. S. the Son of B. false imprisonment lies against him and in a Case when his Warrant is against I. G. there is no such J. G. for by her marriage with the Plaintiff she had another name and he is therefore a Trespassor for the taking of J. Doyly and his averment cannot help him because it agrees not with his Warrant and so cannot be intended to be the same person but if the variance was
in the name of Baptisme onely it would be otherwise and secondly although the party had admitted her to have the same name yet the Sherff in pleading had taken expresse Conusance of the contrary and had made it appear to the Court that it was not according to his authority and therefore he shall be punished but the whole Court was of a contrary opinion for first the Scire facias was according to the Judgement in the Common Pleas and well then might all the subsequent Processe be according in course of Law but if the Husband had come upon the Scire facias and shewed how that she was covert then the Action ought to be against both of them and secondly the parties themselves in all the proceedings throughout have all admitted that she is the same person and that she had the same name and therefore this differs from the 10 E. 4. 15. and therefore they shall be concluded from saying the contrary and although the Sheriff had shewed the marriage that was but a bare allegation and suggestion of the Sheriff and it appears not judicially whether it were so or no and thirdly it would be dangerous for the Sherif to return a Non est inventus for because the parties have admitted her name to be so in all the proceedings the Sheriff shall be estopped also as the 3 H. 7. 10. and then an Action of the Case would ly upon the false Return or if the Woman should be in the company of the Sheriff and the party shew her to the Sheriff she might escape CArrill against Baker Trin. 11 Jacobi The Plaintiff brough an Action wherefore by force and Arms he entred into his Warren and digged his Land and chased his Conies and took them the Defendant pleads to all except to the entring the Warren chasing the Conies and digging the Land not guilty and as to the entring of the Warren chasing of the Conies and digging the Land he pleads an especiall Justification to wit that he had Common there time out of mind and because the Plaintiff stored the Borrows there with Conies and made new holes by reason whereof the Defendants sheep feeding there fell into them to their great damage the Defendant did with a Ferret chase the Conies and stopped up the holes with the earth digged out c. and upon that Plea the Plaintiff demurred and George Crook was of opinion that it was not a good justification and the Question was single whether a Commoner might drive out Conies which surcharged the Land and he conceived he could not for the Freehold and possession of the Land is in the Terr-Tenant onely and the Commoners cannot intermeddle with it for a Commoner hath onely the grasse of the Land and not absolutely neither to do with it what he pleases but onely to take it with the mouths of his Cattel and for this see 12 H. 8. 2. a. and 27 H. 6. 10. and 13 H. 8. 16. the espleas in a Quod permittat is alledged in taking the grasse with the mouths of his Beasts and for that see 22 Assis 48. 10. E. 4. 4. and 46 Ed. 3. 23. if a stranger put in his Cattell the Commoner cannot have an Action of Trespass and 13 H. 8. 15. ruled that if a Commoner dig the Land to make a trench he is a trespassor but he may drive out or distrain for doing damage and 15 H. 7. 12. 13 H. 7. 13. and 12. H. 8. 2. a. because after a manner he hath interest in the grasse which is spoiled and consumed by the Cattell of the stranger but although he may drive out and distrain the Cattell of an estranger yet he cannot meddle with the Lords Cattel or the Terr-Tenants although there be more then reasonable as in Fitzherberts Na. brev 125. D. and 8 E. 3. 30. if the Lord surcharge the Common The Commoner may have an Assise against the Lord and if he be a copy-holder he shall have an Action of the case 9 Rep. 112. but the Lord may distrain H. 9. Ja. Kings Bench a prescription for a Commoner to kill Conies of the Lords is not good and he cited Pasch 43 Eliz. Kings Bench rotulo 234. Belly and Laughorns Case the Lord may use the Sale as he pleases but as his Case is the Commoner although Tenant of the Land cannot kill the Conies with his Ferret For a free Warren in such a precinct is a charge upon the Land in what hands soever it comes but if he hath a Warren adjoyning and the Conies come into the Lands of another out of the Precinct then he may kill the Conies and he cited Boslers and Hardies Case in the Common Pleas and for an express authority he cited Old and Conies case Hill 29 Eliz. and Sir Robert Fitcham he was against it and he agreed he could not kill the Conies but as to the digging he took this difference if a Commoner makes any thing de novo in the Land he is a Trespassor as it is adjudged in the Case of a trench before and the like but if a commoner amends and reforms a thing abused it is no Trespass and therefore if the Land were full of Mole hills he may dig them down 13 H. 8. and 42 Assis if the Lord make a Hedge the commoner may pluck it down 23 E. 3. 6. a. See if the Lord make a Pond in the Land the commoners may dig and let the Water out and therefore holes that were made long in a hurt and Damage to the Land the commoner may put the earth digged out again into its place Secondly the Defendant hath shewed that the Cony holes were made by the Plaintiff himself and he shall never take advantage of his own wrong and Thirdly the Law will allow every man to preserve his inheritance and it cannot be preserved any other way for if he should bring his Assise yet he in that shall recover but Seisin and no Reformation of the Trespass and wrong done and the opinion of the Court seemed to incline for the Plaintiff and Doddridge Justice said that a Lord or his Feoffee may make new conie-Borrows lawfully for they are necessary for the preservation of the conies but one fault found by Justice Haughton in the pleading nothing was done for the Plaintif declared for entring into his Warren the Defendant pleads to all but the Warren digging and chasing not guilty and as to the digging and chasing he justifies for common here but answers nothing as to the Warren neither by confession or traverse and therefore all was discontinued as Herlackendons Case is Co. 4. Rep. and to this the whole court Fleming being absent agreed WAldron against Moore Trin. 11. Ja. The Plaintiff brought an Action of trespass against Moore wherefore his Close called Gerleford at Rentesbury in the County of Devon by force and Arms hath broken and entred c. The Defendant pleads that a long time before the Trespass was supposed to be done one
John W. was seised of three hundred Acres of Land in R. aforesayd of which the place in question called G. is parcell and that 30 H. 6. the sayd John Whithing reciting that whereas N. de la moore 31 E. 1. the Plaintiffs Ancestor Son and heire of H. de la Moore grants to William de la Moore Corsum aque which runs from W. thorow the middle of the Land of the sayd M. And shews further that by meane discents it discends to the Defendant c and so justifies The Plaintiff replies if W. S. was seised of the place where c. and made a Lease thereof to him for yeares and traverses that the three hundred Acres of Land were parcell and Issue joyned upon that and found for the Plaintiff and it was moved in Arrest of Judgement that the Defendant had not made any answer to the Plaintiff and so no Issue joyned for the Plaintiff layes the Trespass in G. in L. the Defendant sayes he was seised of three hundred Acres of which the place c. was parcell but he conveys no title to himselfe but by a course of water thorow the middle of the Land of M. but whose Land that was it doth not appeare and is another thing and therefore an Issue upon that which the Defendant doth not claime is voyd and although Issue be joyned yet it is not helped by the Statute of Jeofailes of 18 Eliz. or 32 H. 8. for it is as no Issue when it is of a thing not in question but if the Issue had been of a matter in question although ill joyned yet it is ayded as Nichols Case is 5 Rep. 43. upon payment pleaded without Deed And Doddridge and Crooke Justices agreed to that but Haughton seemed to incline that it was an Issue and so helped by the Statute FVller against Pettesworth Knight Mich. 11. Iacobi Fuller brought an Action of Trespass against Pettesworth and his Servant for breaking his Close and taking one Cow in D. in the County of B. One of the Defendants plead not guilty the Servant pleads that the Plaintiff holds of Sir Peter P. as of c. in the County aforesayd and for services behinde by the command of his Master he seised the Cow c. The Plaintiff traverses c. and one Venire facias was awarded out of both the Villiages and being found for the Plaintiff it was new moved in Arrest of Judgement by Finch of Grays Inne that two Venire facias ought to have been awarded because the Issue is of things in severall places for if there be severall Issues in one place one Jury shall be onely Impannelled but if in severall places for severall things locall severall Juries shall be but the whole Court held that one Jury onely should be impannelled and one Venu onely should be awarded out of both the places and it is all one as if it had been in one place but it had been otherwise if in severall Counties as 41 Eliz. DAme Petts Case Mich. 11. Iacobi In an Action of Trespass brought by the Lady Petts upon not guilty pleaded the Jury being at Bar the matters following came in question upon the evidence by Haughton and the other Justices If A. be seised of a great Close where c. and a Stranger enter and occupy part of the Close yet notwithstanding A. continues the posaession of the residue whether this shall preserve his possession in the residue and he shall be judged to be in possession of that because it is an intire thing 5 E. 4. 2. and 8 E. 3. 13. Seisin of part of the services is the seisin of the whole and so is Bettisworths Case 2. Rep. The possession of the House is the possession of the Land for the Lessee against his Lessor of that which passes by one demise But if a stranger enter and sever part by metes and bounds nothing is wrought by the possession of the residue Another question was this A Lessee for yeares of ten Acres paying twenty shillings Rent the Lessee is outed of parcell yet he payed all the Rent to him in Reversion the Lessor having notice of the enter whether this protects the Reversion so that nothing is gained by the entry but the interest of the Lessee and shall be no disseisin And Yelverton at the Barr was of opinion that it should be no Disseisin Rithen Sect. 590. saith That so long as the particular Tenant continues his possession so long is the reversion in the Lessor for in such case as to the Lessor the Lessee shall be alwayes deemed in possession by force of the Lease and the reason why the Lessee shall be adjudged in posaession of all as to the Lessor is because the Lessor cannot have notice of the alteration of the posaession for when the Lessee by his owne Act or sufferance doth a thing in alteration of the posaession of which by common intendment the Lessor cannot have or take notice there the Law will not prejudice the Lessor And see for that Farmers Case in the third Rep. 79. If Tenant for life levy a Fine having Land in the same Villiage this shall not bind the Lessor if five yeares pass before he take notice of what Land the Fine is levied And the same Law if Tenant for life make a Feofment to one who hath land within the same Village levies a Fine and in this cafe if the Lessee hath continually payd all his Rent the Lessor cannot intend or suspect but that the Lessee is absolute Tenant of the whole and in Farmers Case it is sayd That if the Lessor levy a Fine the Disseisee is barred without claime for it is impossible but he to whom the wrong is done shall presently know it But if he that hath the particular estate by Grant or trust reposed in him shall secretly practice although he pay the Rent and continue posaession yet it is otherwise But the Reporters opinion was that if in the principall case no Rent had been reserved then the Reversion had been devested by the entry for there had been no act done to mislead or hinder the knowledge thereof and also although rent be reserved and all payd yet if he had express notice thereof the reversion had been devested And secondly if it should be a Disseisin a great mischeif would follow for if a discent should be it would take away the Lessors entry and yet no fault in them because in common presumption the Lessee alwayes continued Tenant but Cook of a contrary opinion for he said it could not be denyed but that the Lessee is out of the posaession and then it follows of necessity that the Lessor must be out of his reversion And as to notice to make his claime he must take notice at his perill 4 M. Dyer 143. b. But note that this is when the Law intends that he may take notice which it will not intend in this Case Haughton was of opinion that it was a
Disseisin and Doddridge sayd It would be mischeivous if it should Hill 6. Iac. In the Common Pleas that if in the Common Barre in Trespass the place in the Common Barre is alledged to be Blackacre the Plaintiff may plead that it is his Free-hold and then it was held by the whole Court that an abuttall of one side is sufficient without alledging it of every side SWaine against Becket An Action of Trespass brought for cutting down of Trees And upon a speciall verdict the question was that whereas there is a Mannor wherein are Copi-holders for life which have used to lopp Trees growing upon the Copy-holds for their necessary fire and repairing of their customary Tenements the Lord of the Mannor maketh a Lease of the Mannor for yeares excepting the Trees the Lessee of the Mannor granteth a copy for life the Copy-holder loppeth the Trees growing on his Copy-hold whether by law he might do it or no was the doubt of the Jury And it was held by all the Court that the Copy-holder might lopp the Trees because he is in by the custome which is above the Lords Estate after he is admitted and that the copy-hold doth not depend upon the Lords interest And that the Trees excepted and the Soil remained parcell of the Mannor because the Lease was but for years but if the Lease had been for life it had been otherwise because it had been severed from the Mannor And whereas it was objected that the Tenant should not be in a better condition then his Author it was answered that a Lord of a Mannor at will may grant a copy for life or in fee and it is good If the Lord cut down all the Trees so that the Copy-holder can have no lopping he may have his Action upon the Case against the Lord as it was adjudged in Gosnolds case If the Lord sell away his waste and the Copy-holder dye and the Lord grant a new copy he shall have his Common If the Lord sell away the Trees so that the Copy-holder cannot have Estovers because the Bargainee felleth down the Trees the Copy-holder shall have his Action against the Bargainee Common and lopping are incident to the copy-hold Judgment for the Defendant HArris against Ap-John An Action of Trespasse brought the Defendant pleads not guilty and verdict found for the Plaintif And in Arrest of Judgment it was alledged that the venire facias was de placito debiti and so also was the habeas corpus and it should have been de placito transgressionis And it was amended by the whole Court MYnwinnock against Bligh Trin. 16. Jacob. rotulo 1697. An action of Trespasse brought for breaking the Plaintiffs Close done Septemb. in the 13. year of King James The Defendant pleads as to part of the Trespasse in award and that the Defendant submits himself to the award the 15. yeare and that the Arbitrators in the 13. yeare which was before the submission made the Award and traverses that he was guilty of the Trespasse after the award made And the Plaintiff replies that the Arbitrators the said day in the 13. year made not any award c. And after Tryall exception was taken that the issue was ill joyned being of a thing that was void yet notwithstanding Judgment was given for the Plaintiff and they resembled to a payment upon a single Bond and conditions performed at a Feast not contained in an Obligation Trin. 15. Jac. rotulo 3044. An Action of Trespass brought wherfore by force and armes his Goods and Chattels to wit a thousand posts and forty railes took and caryed away and damages given intire and after a verdict exception taken because Rales was pretended to be no Latine word nor to have any exception but Judgment was given for the Plaintiff DVncomb against Randoll Hil. 9. Jac. rotulo 2267. Three issues in Trespasse One issue was upon a prescription to wit that they had accustomed to have for himselfe his Farme and Tenants of the same Mannor common of pasture in the said c. for all his Sheep which are levant and couchant in and upon the Demesne Lands of W. which lye and are in A. aforesaid every yeare And exception was taken for the uncertainty because it did not appear that those were demesne Lands which lye in A. for it was ill pleaded and ought to be averred but notwithstanding it was held good after a tryal and Judgment was given for the Plaintiff and in this case an exception was taken to the venire facias because it was of A. and of the Mannor of C. and because it was made in this manner to wit de visu de A. and de visu manerij de C. but it was disallowed because against the form used in the Common Pleas. DOwnes against Skrymsher Trin. 9. Iac. rotulo 334. An Action of Assault and Battery brought and there was a Demurrer upon the Evidence And the case was that the Defendant the day specified in the Declaration said that the Plaintiff assaulted the Defenant and in defence of himselfe justifies the beating the Plaintiff replies that he did it of his own wrong without any such cause and in the Evidence the Defendant maintained that the Plaintiff beate him the day mentioned in the Declaration and in the same place And the Plaintiff perceiving that gave in evidence that the Battery was made another day and place to wit c. which was the cause of the speciall verdict for if there be two Batteries made between the Plaintiff and Defendant at divers times the Plaintiff is bound to prove the Battery made the same day in his Declaration and shall not be admitted to give another day in evidence by the opinion of the whole Court HEydon against Mich. 8. Jac. rotulo 839. An Action of Battery brought against three two of them pleaded not guilty and Judgment by non sum informat against the third and the two were found guilty for all And the Jury gave damages severally against one a 100 l. and against the other a 100 s. and what Judgement should be given was the question and at first the Court was of opinion that the Plaintiff should not have Judgment at all for where the Defendants are found guilty of all the Trespass in this case the damages shall be intire but if one shall be found guilty of part or at another time in this case the damages shall be severall otherwise not And they thought a Venire de novo ought to issue out because the Jury had mis-behaved themselves in severing the damages but afterwards it was resolved that the damages that were given by the first Jury to wit one 100 l. should be recovered against all the Defendants in that Writ named and that in Trespass the first Jury taxes the damages for the whole Trespass and that shall bind all the Defendants and therefore execution was given against all the Defendants for the hundred pounds Trin. 9. Jam. rotulo 1835.
BAnks against Barker Hill 12. Jac. rotulo 1979. In an Action of Trespass the venire facias was well awarded upon the case of the venu in Westown and of the Mannor of D. and the Writ of Venire was mistaken to wit of the venu of Westown and exception being taken after tryall the Court was moved for the amending of the venire facias by the roll and it was denyed because the Jury did come of another venu then they ought by the Law of the Land to come and therefore could not be amended but afterwards the Court seemed to be of an opinion that the awarding of the venu in the roll was mistaken because it was of the venu of the Villiage and Mannor and it should have been of the Mannor only being to try a custome of the Mannor FOrrest against Headle Hill 13. Jac rot 1123. An Action of Trespass brought and a continuando of the Trespass unto the day of the shewing forth the Plaintifs Originall to wit the 20. day of November which day was after the shewing forth of the Originall and because the Jury gave damages for the whole time which ought not to be it was proved that the Judgment upon the verdict might stay but by the whole Court the videlicet was held idle and Judgment given for the Plaintiff COcks against Barnsley Hill 10. Iac. rotulo 2541. An Action of Trespass brought and a speciall verdict found and the question was whether Land held in ancient Demesne was extendable for debt and an action of Trespass brought for that cause And Justice Nichols held it was extendable for otherwise if it should not be extendable there would be a fayler of Justice for if a Judgment should be had against a man that had no other Land but what was in ancient Demesne and that it could not be extendable there would be a fayler of Justice which the Law doth not allow of but an Assize or a re-disseisin doth not lye of Land in ancient Demesne because of the Seisin that must be given by the Common Law and it would be prejudicial to the Lord which the Law allows not and Wynch and Hubbard were of the same opinion For ancient demesne is a good plea where the Free-hold is to be recovered or brought in question but in an action of Trespass it is no plea. And note that by this execution neither the Free-hold nor Possession is removed but only the Sheriffe enters to make execution upon a Judgment had in the Common bench in debt which is a proper Action to be brought there WRight and his Wife against Mouncton Hill 12. Iac. rotulo 43. An Action of Trespass brought to which the Defend pleaded not guilty And the Husband only made a challenge that he was servant to one of the Sheriffs and prayes a processe to the Coroners and the Defendant denies the challenge and therefore notwithstanding the challenge the Venire issued to the Sheriffs and after a tryall exception was taken because the woman did not joyne in the challenge and it was held that the Husband and Wife should joyn in the challenge although the cause of challenge proceded from the Husband only but after tryall it was helped by the Statute of Ieofailes and judgment given for the Plaintiff BIde against Snelling Hill 16. Iac. rotulo 1819. An Action of Ejectment brought and also a Battery in one and the Writ and after a verdict it was moved in Arrest of Judgment because the Battery was joyned with the Ejectment The damages were found severally and the Plaintiff had released the damages for the Battery and prayed Judgment for the Ejectment Winch held the Writ naught but Judgment was given for the Plaintiff notwithstanding STeward and his Wife against Sulbury An Action of Trespass brought wherefore by Force and Armes the Close of the Wife while she was sole at D. hath broken and the wood of the said D. to the value of 1005. there lately growing hath cut down and carried away and in his Count shews that he hath cut downe two acres of wood and exception was taken because he declared of so many acres of wood and not of so many loads of wood to wit twenty c. loads and held by the Court to be a good exception BLackeford against Althin Trin. 14. Jac. rotulo 3376. An action of Trespass brought wherefore by Force and Armes a certain Horse of the said Plaintiffs took away c. The Defendant conveys to himselfe a certain annuity granted to him by one John Hott The Plaintiff shews that one William Hott Father of the said Iohn Hott the Grantor was seised of Land in Fee which Land was Gavel-kind Land and devised it to his Wife for life the remainder to Iohn Hott the Elder and Iohn Hott the Younger his Sonne and the Heirs of their bodies And afterwards William dyed and the Woman entred and was seised for life and the two sonnes entred and were seised in tayl and being so seised Iohn Hott the younger had issue Iohn Hott c. and traverses without this that Iohn Hott the Father at the time of granting the annuity was seised of the Tenements aforesaid with the appurtenances in his Demesne as of fee as c. And the Defendant as before saith that the said J. H. the Father at the time of the granting the annuity aforesaid was seised and after the tryall it was moved in Arrest of Judgment supposing it was mistried because the issue was that the said J. H. the Father at the time of the grant c. And it doth not appear that the said J. H. was nominated Father neither could it appear that the said J. H. was the Father and so the word Father was idle and the Court were of opinion that it was helped by the Statute of Ieofailes and the word Father was idle and judgment was given for the Plaintiff A. brought an Action of Battery against the Husband and Wife and two others the Wife and one of the others without the Husband pleads not guilty and the Husband and the other pleaded seu assault demesne and tryed and alledged in arrest of Judgment because the Woman pleaded without her Husband and Judgment was stayed and a Repleader alledged and this case was confirmed by a case which was between Yonges and Bartram HArvy against Blacklole Trin. 8. Jacobi rotulo 1749. An Action of Trespass brought wherefore by force and Armes his Mare so strictly to a Gelding did fetter that by that fettring the Mare aforesaid did dye If a stranger take a Horse that cometh and strayeth into a Mannor the Lord may have his action of Trespass If my stray doth stray out of my Mannor and goeth into another Mannor the day before the yeare be ended I cannot enter into the other Mannor to fetch out the stray If I take an Horse as a stray and onother taketh him from me the Action lyeth not by the Owner against the second taker
for he intended that tythes should be due by divine right as due by the Manuring and Tillage of the occupier in whose soever hands that the land commeth if it be not in the hands of the Parson himselfe 30 H. 8. 43. Dyer 20. And for that a Parson shall have tythes against his own Feoffment 43. Ed. 3 13 a. 1. Coke Albanyes case 111. a. 32 H. 8. B. Tythes the 17 accordingly and unity of possession shall not extinguish them And also he intended there are two manner of persons which are discharged of paiment of tythes One Spirituall the other Temporall the spirituall in respect of their Order and the temporall in respect of Custome and Prescription and also by grant as it is agreed in the Arch-Bishop of Canterburies Case 2. Coke but this is in the case of a spirituall man before the Statute of 32 H. 8. which was capable of them in taking and that he might prescribe in not Tithing but a lay man cannot be discharged but for satisfaction and consideration for he cannot prescribe in not Tithing and for that in the case here the thing to be considered is if it be sufficient satisfaction and consideration and to that he intended that the payment of a duty that is Tyth Corn and Tyth Hay cannot be satisfaction consideration for another duty and this was the Reason of Piggot Hernes Case that the Lord of a Mannor in consideration of 20. Nobles yearly paid to the Parson prescribes to have the tithes of a Hamlet and in consideration of that the Lord himself and his Tenants were discharged of payment of Tithes but there the consideration and satisfaction was the cause which made the custome good see 2. Coke 45. a. And then he proceeded and examined the manner of the satisfaction in the principall case which is that the Plaintiff shall pay tyth Corne and Hay and nothing for Milk and Calves but by reason thereof shall be discharged as if he should say that because he payeth tythe Corne therefore he shall pay no tithe Milk and he intended that the nature of satisfaction is to give content to the party as if the prescription had been that the Plaintiff should pay so much Money and in consideration of that or that he shall make the tithe in Cocks or rake it or mow it at his owne charge this is a good prescription aed there are diverse presidents of that but no president is of this forme as the case here is for money shall be intended the greater value and more beneficiall for the Parson then his Tithes in kind and Money is the value of every thing and may give contentment to the party which receives it he cited Bookes of 9. Ed. 4. 19. and 12 H. 7. 15. and 2â— H 5. 2. a. To the same intent which were cited before by Haughton that is which agree in Arbitrement and the Plaintiff entred into his own Land or that the Defendant delivered to the Plaintiff his own goods which the Defendant had taken from him it is not good for it cannot give contentment to the party otherwise it is if it be that the Defendant shall carry them to another place and there shall deliver them for it cannot be satisfaction and contentment to the party and for that that here the Plaintiff hath not made more then the Law compells him and that it was his own duty and for that the prescription wants consideration it shall not be good and also by reason thereof it can be no good discharge for this cannot be satisfaction but he said it was adjudged Pasch 20 Jacobi between Hall and Aubery that Money was a good consideration and satisfaction for tithes and so he concluded and prayed judgment for the Defendant note that this cause was adjudged Hillary 8. Jacobi upon solemn argument by all the Judges with one voice that the Prescription was good Haughton Serjeant moved for a Prohibition for that the Suit was begun in the Admirall Court upon Charter party made beyond Sea upon the Land and Prohibition was granted though it be for a thing made in Paris or in another place beyond the sea if it be not upon the Main Sea but if the Defendant there admitts the Jurisdiction of the Court and suffers sentence then the Court will not upon a bare surmise grant a Prohibition after the admittance of the party himself if it be not in a thing which appeareth within the Libell that is that the Act was not made within the Jurisdiction of the Sea and to this difference all the Court agreed If a Court Baron divide a Debt of thirty pound in severall parcells under forty shillings and so proceeds in severall Actions Prohibition shall be granted see Fitzherberts Natura brevium and 19 H. 6. Hane was cited out of his Diocesse into the Arches and he pleaded to the Libell and sentence is given against him for costs and after that Prohibition was granted and upon that consultation was prayed for that that the Defendant was the party greeved and ought to have pleaded the Statute insomuch that the Statute was made for his benefit but if it appears by the Libell that the Court of Arches need not to have Jurisdiction then it seems that the Prohibition was well granted as in Sir Henry Vinors Case he began a suit in the high Commission Court for the not serving of a Chappell and the Court understanding that they had no Jurisdiction remitted the cause to the Ordinary and yet gave sentence against Sir Henry Vinor which was Plaintiff for Costs and for that he prayed a prohibition and it was granted to his Petition notwithstanding that he himself was the party who begun the suit there as it was remembred by Nicholls Serjeant A Woman sued in the spirituall Court for Defamation and the words were That thou mayest be an honest woman but thou playest too much with a thing c. And Prohibition was prayed insomuch that these words were not Actionable for in Spellmans reports Prohibition was granted for that they proceeded there for calling a Minister Knave Preist and also by these words a white Cloake is more fitter then a black cloake for him for action upon the case doth not lye for these words by any Law but the Prohibition was not granted Pasch 11. Jacobi Prohibition Tey against Cox PRohibition was prayed for that that one was cited out of his Diocesse before the Arch-Bishop of Canterbury as Keeper of the Spiritualties in time of the vacation of the Bishopprick and it was denyed but if he had beene to appeare before him as Metrapolitan otherwise it should have been insomuch that this is against the Statute of 23. H. 8. And also for his own Canon but in this case the Statute of 23 H. 8. And also their own Canon but in this case the ArchBishop hath done as he ought and for that the Prohibition was denyed see 17 Ed. 2. Fitz. Na. Bre. 822. and
a Fee simple conditionall and not an Estate tayl and he said that the sole question was if the Statute of Westminster 2. conevrted and changed Fee simple conditionall of copy-hold into an Estate tayl for if it be not an Estate tayl within this Statute it shall not be an Estate tayl at all for Littleton saith before the making of the said Statute these Estates were Fee simple conditionall and for that cannot be by prescription also he said that copy-hold Estate was so base an Estate that at the Common Law a copy holder had no remedy but only in the Court of the Lord But as to Littleton who sayth that he may have a Formedon in discender to that he saith that the Heire which hath Fee simple conditionall may have it by the Common Law for this was at the Common Law before the making of that Statute of Westminster 2. As it appears by 4. Ed. 2. Formedon 50. 10. Ed. 2. Formedon 55. And by Bendlowes in the Lord Barkleys case in the Commentaries 239. b. by Benlose where it is said by him that a Formedon in discender was not at the Common Law but in a speciall case where an Assise of Mortdancester would not serve the Issue that is if a man had Issue a Sonn and his Wife died and after that he takes another Wife and Land was given to him and to his second Wife and to the Heires of their two Bodyes begoten and they have another Sonn and the Wife dies and after the Father dies and a stranger abates there he sayth that before the Statute the youngest Soon could not have an Assise of Mortdancester and for that he shall have a Formedon in discender which was no other but a writ founded upon his Case see 10 of Ed. 2. Formedon 55. And for that when Littleton speakes of an Estate tayl of copy-hold that ought to be understood of Fee taile which may be Fee simple conditionall and so Littleton may be reconciled 〈◊〉 will well agree with himself also it seems that Copy-hold is ouâ—â—f the intent and meaning of the Statute of Westminster 2. For at the common Law in ancient times this was base Estate and not more in reputation then villinage and also if such an Estate then might be created of that which shall be perpetuall and no means to barr it for surrender of that doth not make any discontinuance and Recovery was not known till 12. Ed. 4. and he saith that in ancient time the name of Copy-holder was not well known for in ancient time they were called Tenants in Villinage and Tenants by copy is but a new terme see Fitzherberts Natura Brevium 12. b. and the old Tenures fol. 2. and Bracton lib. 2. charter 8. In gifts made to servants calleth them Villaines and Sokemen and in the old Tenures it is said that the Lords may expell them and upon this he inferred that if it be so baseâ— Tenure though it be of Lands and Tenements yet they shall not be intended to be within the intent of the makers of the Statute of Westminster 2. and also by a second reason that is that it was not the intent of the makers of the Statute that this should extend to any Lands but only to those which are free Lands for the parties are called Donees and Feoffees and the will of the Giver should be observed according to the forme in the Charter of his gift manifestly expressed by which it appears that it ought to be of such Land of which a gift may be made and also the Statute provides that if the Donee levy a fine that in right it should be nothing by which also it appears as to him it seemed that it ought to be of such Land of which a fine may be levied And also for a third reason which was the great Inconvenience which would ensue upon it for then the Donees have no meanes to dispose of that nor give that for the advancement of his Wife nor her Issues and also the Lord shall loose his signiory for the Donee shall hold of him in Reversion and not of the Lord and it is resolved in Heydens Case 3 Coke 8. a. That when an act of Parliament alters the service Tenure Interest of the Land or other thing in prejudice of the Lord or of the custome of the Mannor or in prejudice of the Tenant there the generall words of such act shall not extend to Copy-holders see the opinion of Manwaod cheife Baron there and he agreed that admitting it shall be an Estate taile that then Surrender shall not make discontinuance and so he concluded and prayed Judgment for the Plaintiffe his Clyent see Hill and Vpchars Case which was adjudged in the Kings Bench and the principall case was adjourned untill the first Saturday of the next Tearme See Hillari 7. Jacobi in this Book in Replevin the Plaintiff was non-suited between the same parties See also Pasche 9. Jacobi 149. Hillary 1610. 8. Jacobi in the Common Bench. Wallop against the Bishop of Exeter and Murray Clark IN a Quare impedit the case was Doctor Playford being Chaplaine of the King accepted a Benefice of presentation of a common person and after he accepted another of presentation of the King without any dispension both being above the value of eight pound per annum if the first Benefice was void by the Statute of 21 H. 8. chapter 13. or not was the question for if that were void by the acceptance of the second Benefice without dispensation then this remaines a long time voide so that the King was intituled to present by Laps and presented the Plaintiff the Statute of 21 H. 8. provides that he which is Chaplain to an Earle Bishop c. may purchase license or dispensation to receive have and keep two Benefices with cure provided that it shall be lawfull to the Kings Chaplaines to whom it shall please the King to give any benefices or promotions spirituall to what number soever it be to accept and receive the same without incurring the danger penalty and forfeiture in this Statute comprised upon which the question was if by this last Proviso Chaplaine of the King having a Benefice with cure above the value of eight pound per annum of the presentation of a common person might accept another Benefice with cure over the value of eight pound also of the presentation of the King without dispensation the words of the Statute by which the first Church is made void are and be it enacted that if any parson or parsons having one Benefice withcure of Soules being of the yearly value of eight pound or above accept and take any other with cure of Soules and be instituted and inducted in possession of the same that then and immediately after such possession had thereof the first Benefice shall be adjudged in the law to be void See Hollands case 4. Cooke 75. a. This case was not argued but the point only opened by Dodridge Serjeant
Cletherwoods Case of the Middle Temple but he said that Prescription to have all the Vesture of the Land is good for such a time and at the first day of the Argument of this Case Foster Justice seemed that the prescription was good and might have reasonable beginning that is by Grant as if they have Common together and they agree that one shall have all for one part of the yeare and the other for another part of the year and that shall be good to which Coke answered that that cannot be by Prescription to have that as Common and at another day Coke cited Shirland and Whites Case to be adjudged 26 of Eliz. in the Kings Bench to be prescription to have common in the Waste of the Lord and to exclude the Lord to have common in the place and adjudged to be void prescription and also he cited a case between Chimery and Fist where prescription was to have common in the Soile of the Lord and that the Lord shall have feeding but for so many cattell and adjudged that the Prescription was not good to exclude the Lord but a man may prescribe to have the first Crop or the first Vesture of anothers Land and it is good and with that agrees the resolution in Kiddermisters Case in the Star-Chamber Warburton justice said that this prescription is not for the excluding of the Lord but for their good ordering of their Lands according to the Book of 46 Ed. 3 25. before cited that the great Cattell should have the first feeding and after that the sheep Coke said that if it had appeared by the pleading that all the Demesnes of the Lord ought to be common and in consideration that the Lord had inclosed part and injoyed that in severall the Free-holders and Tenants of the Mannor which have Common over all the Residue and exclude the Lord and this shall be good by prescription and it is adjourned see 15 Ed. 2. Fitzherbert Prescription 51. And afterwards in Trinity Tearme 1612. 10. Jacobi this case was moved againe and all the Justices agreed as this Pleading is Judgment shall be given for the Plaintiff and they moved the parties to replead Pasch 9. Jacobi in the Common Bench. Portington against Rogers Trin. 8. Jacobi Rot. 3823. MARY Portington brought a Trespasse against Robert Rogers and others Defendants for the breaking of her house and Close upon not guilty pleaded and speciall Verdict found the Case was this A man had Issue three Daughters and made his Will in writing and by that devised certain Land to the youngest Daughter in taile the Remainder to the Eldest Daughter in taile the Remainder to the middlemost daughter in taile with Proviso that if my sayd daughters or any of them or any other Person or persons before enamed to whom any estate of Inheritance in possession or Remainder of in or to the said Lands limited or appointed by this my last Will and Testament or to the Heires before mentioned of them or any of them shall joyntly or severally by themselves or together with any other willingly apparently and advisedly conclude and agree to or for the doing or execution of any Act or Devise whereby or wherewith the said Premises so to them intailed as aforesaid or any part or parcell thereof or any estate or Remainder thereof shall or may by any way or means be discontinued aliened or put away from such person or persons and their Heires or any of them contrary to mine intent and meaning in this my Will otherwise then for a Joynture or shall willingly or advisedly commit or do any act or thing whereby the premises or any part thereof shall not or may not discend remaine or come to such persons and in such sort and order as I have before limited and appointed by this my last Will and Testament then I will limit declare and appoint that then my said Daughter or Daughters or other the said person or persons before named and every of them so concluding and agreeing to or for the doing or execution of any such act or Devise as is aforesaid shall immediately from and after such concluding and agreeing loose and forfeit and be utterly barred and excluded of and from all and every such Estate Remainder and benefit as shee or they or any of them should might or ought justly to have claime Challenge and demand of in or to so much thereof as such conclusion or agreement shall extend unto or concern in such manner and forme as if she or they or any of them had not been named nor mentioned in this my last Will and Testament and that the Estate of such person c. shall cease and determine c. And after that the youngest Daughter tooke a Husband and then shee and her Husband concluded and agreed to suffer a Recovery and so to barr the Remainder and upon that the Plaintiff being the eldest Daughter entred and upon the Entry brought this Action And Harris Serjeant argued for the Defendant that this shall be a condion and not a limitation and he said that Mews and Scholiasticas Case is not adjudged against him see the Commentaries 412. b. And it shall be taken strictly for that that it comes in Defesans of the Estate and then admitting it is a condition it is not broken for this conclusion and agreement is only the agreement of the Husband and though that the Wife be joyned yet be that for her benefit or prejudice that shall be intended only the Act of the Husband and he only shall be charged as in the 48 Ed. 3 18. Husband and Wife joyne in Contract and the Husband only brings Action upon that and 45 Ed. 3. 11. Husband and Wife joyne in Covenant and the Action was brought against them both and it was abated for that shall charge the Husband only 24 Ed. 3. 38 The Husband and the Wife joyne in an Action upon the Statute of Laborers and the Writ abated and so in cases of Free-hold as 15 Ed. 4. 29. b. The Husband and the Wife being Tenants for life joyne in praying aid of a stranger and this shall be no forfeiture of the Estate of the Wife and 48 Ed. 3. 12. a. Statute Merchant was made to the husband and Wife and they joyned in Defeasans that shall not be Defeasans of the Wife and 28 H. 8. Dyer 6. The Husband of the Wife Executrix aliens the Tearme which was let to the Testator upon condition that he or his Executors should not alien and by Baldwin by the alienation of the Husband the Condition was not broken for it was out of the words so here the agreement and conclusion being made by Husband and Wife shall be intended the Act of the Husband only and so out of the Words and by consequence out of the intent of the Condition and shall be taken strictly but he seemed that the Condition shall be void for the Words conclude and agree are words uncertain for what
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
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
21 H. 8. grants administration to one which is next of Blood that he cannot repeale it but Coke cheife Justice seemed the contrary and that he incurred the penalty of the statute only And if an Administration be granted to one which is next of Blood upon which the first Administrator brings an action of debt hanging that upon suggestion that the first Administration is void another Administration is granted and it seems that this second Administration granted upon this suggestion shall be repealed from the first though it be generall and without any recitall of it But if the second be declared by sentence to be void from the beginning then the first remains good Action upon the Case was brought for these words that is thou hast killed I. S. And it seems that the action doth not lye for a man may kill another in execution and as Minister of Justice or in Warr in which things killing is justifiable Michaelmasse 1611. 9. Jacobi in the Common Bench George Barney against Thomas Hardingham IN Trespasse for breaking the House and taking of a Cowe the Defendant pleades that the King and all those whose Estates he hath in the hundred have had Turne and at the Court held such a day it was presented that the Plaintiff hath incroached upon the high Way for which he was amerced and the amercement was affirmed by two Justices of peace according to the Custome of the Turne aforesaid And that he being Bayliff of the hundred by vertue of a Warrant to him in due manner made and directed hath entred the said house and taken the said Cowe for distresse for the said amercement and carrying it away which is the same Trespasse and so demands Judgement upon which Plea the Plaintiff Demurred And by Haughton Serjeant for the Plaintiff the Plea in Barr is not good and first he conceived that it was not good insomuch that the King hath made his Prescription by whose Estate and he intended that he could not make his Prescription by whose Estate insomuch that this lies in grant as it is 12. H. 7. 15. where it is agreed that by nothing which lieth in grant a man may Prescribe by whose Estate Also the Plea is that the King was seised in his Demesne as of Fee where it ought to be in Fee only insomuch that it is a thing only in Jurisdiction or Signiory and not Manurable as in 8. H. 7. 7. H. 4. 30. assis In an Action of Debt upon Reservation made upon Lease of a Mannor and hundred it is agreed that the hundred is not in Demesne nor Manurable Also the Plea is not good insomuch that it is not Pleaded before whom the Turne shall be held And allwaies when a man claimes a Court by Patent he ought to shew before whom his Court shall be held otherwise it shall not be good so of Conusance of Pleas otherwise it is if it be in a Turne for that shall be intended a certaine ancient Court See 44. Ed 5. 17. 1. H. 4. 6. 6. H. 4. 1. Also the Statute of Magna Charta chap. 35. requires that it should be held in the accustomed place and so it ought to be alledged or otherwise it is against the Statute and for that it shall not be good for it is of the nature of Sheriffs Turne and derived out of that See the book of Entries in Replevin 2. Also the Statute of Magna Charta chap. 14. appoints that the officers shall be the Sheriffe and this is not pleaded but generally by two Justices of Peace upon their Oath And also it is not pleaded to what Sum the amercement was made Also it is pleaded that he being a Bayliffe of the Hundred by vertue of a Warrant to him in due manner directed and made hath taken the distresse and doth not plead the Warrant certainly nor the place where it was made And for that the Plea is not good Also he pleades that he took and led away the Cowe in name of distresse and he ought to say that he took it and impounded it for that he tooke it and carried it away imports that he tooke it to his owne use 9. Ed. 4. 2. 20. Ed. 4. 6. And so he concluded that the Barr is not good and praied Judgement for the Plaintiff And Barker Serjeant for the Defendant conceived that the Prescription for the Hundred by which the Estate was very good and for that See 12. H. 7. 17. a. 8. H. 7. 13. H. 7. Also he intended that the title to the Court is very good notwithstanding that it is expressed before that it shall be held insomuch that the Law takes notice of the Turne of the Sheriffe and that he is Judge of that and that the Affirance is very good insomuch that this is according to the Custome of the Turne aforesaid And the Warrant of the Baylifâ—e is very well pleaded and more is pleaded then need for it is the duty and appertaineth to his office to gather the amercements and he might do that without Warrant by force of his office But if it be upon plaint between party and party otherwise it is and for that see the book of Entries 553. And also the charge in the Action is for that that he took and carried away and of that he made Justification and he cannot Plead otherwise and to the whose Estate c. That a man cannot Prescribe to have a thing by whose Estate which lieth meerely in grant without shewing of a Deed yet when that is appurtenant to another thing as here the Court is to a Hundred it may very well that do and 33. H. 8. B. Leete when the penalty is Presented by the Jury it selfe there needs not any affirance And so he concluded that the Plea in Barr is very good and praied Judgement upon that for the Defendant And Coke cheife Justice said that Turne of the Sheriffe is derived of Turner which signifies to ride a Circuit and so of that is derived Turner and of that the Turne of the Sheriffe and of this is derived the Hundred and from this the Leete And it seems to him that he ought to plead before that the Court shall be held insomuch that it is against Right and so it was adjourned Michaelmas 1611. 9. Jacobi in the Common Bench. Hill against Upchurch NOTE that Coke cheife Justice saith that it was adjudged in 27. of Eliz. For the Mannor of Northhall in the County of Essex that admitting that a Copy-hold may be Intailed by the Statute that then Custome that a surrender shall be a Barr or discontinuance of such Estate tayl is good for as well as the Estate may be created by Custome as well it may be Barred or discontinued by Surrender by Custome Brandons Case NOTE if a Mannor or other signiory be extended upon a Statute and a Ward falls which is a sufficient value to make satisfaction of the Extent yet this shall not be
of Norfolke and Marshall and their Authority and Jurisdiction was absolute and their Judgements not reversable unlesse by Parliament and this appeares by the Statute of 5. Ed. 3. chap. 2. that they might hold Plea of things which did not concerne them of the household and also the words of the Statute of Articuli super chartas chap. 3. 28. Ed. 1. provides that the Marshalsey shall not hold Plea of free hold of covenant nor of any other contract made between the Kings people but only of Trespasse made within the Kings house or within the Verge and of such Contracts and Covenants which one of the honse made with another of the house and within the house and in no other place where Trespasse is Limited to the Kings house or within the Virge but no restraint that the parties shall be of the Kings House or otherwise it shall not be intended which shall be only those which are of the Kings House insomuch that the Trespasse is limited to be made within the Virge also he sayd it was a statute made 30 Ed. 1. which provides that if any causes arise amongst the Citizens of London only that this shall be tryed amongst the Citizens but if it be between them of the House it shall be tryed by them of the House by which it appears that they may hold plea between Citizens of London where none of the parties are of the Kings House also the statute of 6 Ed. 3. chapter 2. provides that in Inquests they shall be there taken by men of the Country adjoyning and not men of the Kings Houshold if it be not betwixt men of the Kings Houshold if it be not for Contracts Covenants and Trespasses made by men of the Kings Houshold of one part and that the same House which referrs to the statute of Articuli super chartas before cited and this expounds and so the Statute of 10 Ed. 3. chapter 2. provides that in Inquests they are to be taken in the Marshalsey that the same inquests shall be taken of men the Country thereabouts and not by People of the Kings House if it be not of Covenants Contracts or Trespasses made by people of the same House according to the Statute made in time of the Grand Father of the said now King and according to that the use hath been that is if none of the parties of were the Kings house then the tryal had been by the men of the country adjoyning And if one of the parties be of the house and another not then the tryall is by party Juries and if both the parâ—ies be of the house then all the Jury hath used to be of the house and if the Cause be between Citizens of London then the tryall hath used to be by Citizens of London and in the Book of Entries the same plea was pleaded in false Imprisonment 9 10. and the Register fol. 1 1. A. in action upon escape in Trespasse and to the Books of 7 H. 6. 30. 10 H. 6. Long 5 Ed. 4 19 Ed. 4. 21 Ed. 4. He saith that none of these Books are in action of Trespasse but one onely and that is mistaken in the principall point and so may be mistaken in one by case And the Booke of 10 H. 6. 30. is directly in the point but Brooke in abridgement of that saith that the practise and usage of the Court was otherwise But it may be objected that this is Indebitatus assumpsiâ— which is in nature of an action of debt and founded upon contract he said that Fitzherbert in his Natura Brevium said that there are two sorts of Trespasses that is General and upon the Case and Trespasse is the Genus and the other are the Species and that the action is founded upon breach of promise which is the Trespasse as for not making of a thing which he hath promised to doe and it is Majesteale breve and not breve formatuâ— and so is an action of Trover and Conversion or Assumpsit are Writs of Trespasse but admit that no yet action of false Imprisonment doth not lye for hee ought not to dispute the authority of the Court for the duty of his Office is only to be obedient and diligent for otherwise he should be judged of the Judg And who by the appointment of the Judge doth any thing doth not seem to do it deceitfully because it is of necessity he should obey and 14 H. 8. 16. a Justice of Peace awarded a Warrant to arrest a man for suspition of Felony where his Warrant was void and yet the party to whom it was directed justifies the making of the Arrest by force of that And 12. H. 7. 14. Capias was awarded to the Sheriff without original yet it was a sufficient Warrant to the Sheriffe and 22 Assis 64. Court awarded a Warrant where they had no Jurisdiction and yet it was a sufficient Warrant for him to whom it was directed And so in Mansells case if the Sheriffe execute an habere facias sesinam awarded upon a void Judgement this is a sufficient Warrant for him So in this case allowing that the Court hath no Jurisdiction yet the Plaintiff cannot be retained by this action but is put to his Writ of Error or to his action upon the Statute and so he concluded and prayed Judgment for the Defendant Hutton Serjeant for the Plaintiff argued to the contrary and hee intended that Judgment should be given for the Plaintiff for the matter and also for the Parties and that the Judgement and all other proceedings in the Marshalsey were meerly void and he denyed that they had originally such absolute jurisdiction as Fleta pretended for originally that was only for the preservation of the peace as it appears by the stile of the Court and also by the diversities of the Courts and that Criminall causes which require expedition are there only tryable and that civill causes are incroached of later times and it was necessary to be restrained and reformed by Parliament And it appears by the Statute of Articuli super Chartas that they have encroached to hold plea for free-hold and for that the Court which is mentioned in Fleta cannot be otherwise intended then the Kings Bench which then followed the Kings Court And also that they have not incroached only upon matters as to hold plea for Free-holds but also to persons and place where Contracts and Trespasses were made and this was the cause of the making of the said Statute And to this action of Trespasse for indebitatus assumpsit there begun he intended that it is for another thing of which they could not hold plea and it might be criminall for Civill is that which begun by contract and it is part of the commutative Justice for which is recompence given by one party to another and is not founded upon the Contract but is translated to an action of Trespass which manner of Trespass is not within the Statute and so he intended that
for the matter it is not within the Statute and then for the persons also he intended that it is not within the Statute and this appears by the words of the Statute of 28. Edw. 1. Articuli super Chartas and to that 10. H. 6. 130. it is adjudged that Judgement in such case there given is void and Coram non Judice so 7 H. 6. 30. expresses the cause to be insomuch that none of the parties are of the houshold of the King 4 H. 6. 8. 19 Edw. 4. 8. 5. Edw. 4. 32 H. 6. Rot. 27. And he cyted also Michelburns Case to be adjudged upon a Writ of Error in the Kings Bench 38 Eliz. That they could not tender a Plea in Trospasse for Trover and Conversion if none of the parties were of the Kings house and further he said that when a Court hath Jurisdiction and errs in matter of proceedings or in Law there the Execution made by force of their Process shall be lawfull But where the Judgement is void by default of Jurisdiction as in this Case there it is otherwise as 10 H. 6. 13. Recovery of Land in the Spirituall Court is void so Formedon commenced Judgment given upon that before the Judges of Assises void So 36 H. 6. 32. Recovery of Land in Wales in this Court is void and 8 Edw. 4. 6. Recovery of Land in ancient demesne is avoidable by Writ of Deceipt But in the other cases before the Judgment and Recovery is absolutely void and Coram non Judice for default of Jurisdiction So in 9 H. 7. 12. b. Recovery of Land in Durham Chester or Lancaster here is void for the same cause And in this case also the said Statute makes that void by expresse words see the statute of Articuli super Chartas Chap. 3. And to the case of 14 H. 8. before cyted of Warrant awarded by Justice of Peace he agreed that insomuch that the Justice of Peace had Jurisdiction of causes of Felony and erred only in the forme and manner of his proceedings and so in all the other cases which were put of the other part And also hee agreed that a Writ of Error may be well maintained if such Judgement which is void as it was in Michelburns case for the party may admit the Judgment to be but voidable if he will And to the exceptions to the pleading that is that the authority is not prosecuted 1 Postea that is such a day which was before the Judgment and yet it seems good and that in the first the authority was very well prosecuted in the 2 Postea was sufficient and the other words that is such a day is but surplusage and so he concluded and prayed Judgment for the Plaintiff and it was adjourned Michaelmas 1611. 9. Jacobi In the Common Bench. Peto against Checy and Sherman and their Wives Triâ— 9. Jacobi Rot. 1151. IN Trespasse and Ejectione firme the Defendants pleaded that one of the Defendants made agreement with the Plaintiff for the said Trespasse and Ejectment with satisfaction and demands Judgment if action upon which the Plaintiff demurred in Law and it was argued by Nicholls Serjeant for the Plantiff that the agreement was no plea though it be said by Keble in the 11. H. 7. 13. That though it be a Plea in Ravishment of Ward quare Impedit and quare ejecit infra terminum insomuch that they are actions personall But Wood denyed that insomuch that Inheritance is to be recovered and in Ejestione firme tearm shall be recovered and for that it shall not be spoken and of this is Wood expresly in the 13. H. 7. 20. b. That in Ejectione firme agreement shall not be a plea insomuch that the tearm is to be recovered which is the thing in demand And there also it is agreed that in Waste brought against Lessee for yeares in the Tenet agreement is good plea and so Vavasor intended if it be in the Tenet but not if it be brought against Lessee for life And also he intended that by Recovery in Ejectione firme more shall be recovered then the tearm only for by that the reversion shall be also reduced and for that the Inheritance is drawn in question and it is said in 11. H. 7. 13. that it shall not be a plea in Assise insomuch that there the Free-hold is to be recovered and by the same reason hee intended that shall be no plea insomuch that more is to be recovered then in Assise for there the Tenant only shall recover the free-hold and his damages but here the Tearm and the Inheritance also are reduced and revested And this is the reason also which is given in 11. H. 7. 13. b. by Fisher That if a man make a Lease for years rendering Rent and after brings Debt for the Rent behind the Defendant cannot wage his Law notwithstanding that the action is personall But this is more high in his nature as it is there said and yet there nothing shall be recovered but only damages for which a man may have satisfaction Also he intended that it was not well pleaded that is that such agreement was had between the Plaintiff and one of the Defendants and betwixt those shall be intended those two only and also Ipsum and Alios by his commandâ—ment and doth not shew that this was made by the other two by his commandement and so he concluded and prayed Judgment for the Plaintiff Shirley Serjeant for the Defendant that the Plea is good and that the nature of the Action is only Trespasse by force and arms and differs from a Quare ejecit but Ejectione firme differs from predict infra terminum and lyes against the immediate Ejector but Quare ejecit lyeth against him which hath title as he in reversion 7 H. 4. 6. b. Ejectione firme was brought by Executors of Land let to their Testator for years upon outing of the Testator by the statute of 4 Edw. 3. Chap. 6. which gives action for the Executors of goods taken out of the possession of their Testator and it seems to him also that proces of Outlawry lyes in an Ejectione firme but in Quare ejecit infra terminum only summons So it is 11. H. 7. 13. There is a great difference between Waste and this for there the Process is Distress and other speciall Process But so is it not here but only the Process which is in other generall actions of Trespasse and so is the expresse opinion of Keble in 11. H. 7. 13. That in ravishment of Ward Quare Impedit and quare ejecit infra terminum that agreement is a good plea and yet all these trench upon the Realty and in ejectione firme if the tearm expire hanging the action this shall not abate the Writ but the Plaintiffe shall have Judgement for his damages otherwise in a Quare ejecit infra terminum And it was resolved 20 Eliz. That if an ejectione firme be brought at the common Law of Lands in
so these words of the Writ are not answered and so no Tenant is returned at all And it is not like to the Case in 2 H. 4. for there the Return was according to the Exigent of the Writ but here it is not so And to the first matter he intended and agreed that an Executor of an Executor may sue execution had by the first Executor insomuch that hee comes in in privity But he said that so it is not in this case and that there is no difference betwixt this case and the case cyted in Shelleys case that is that Administrator of Administrator shall not sue execution insomuch that he comes in peramount Administrator and accords with this Case 2 Eliz. in the Lord Dyer If two Joynt-Tenants are and one makes a Lease for years rendring Rent and dyes the Survivor shall not have the Rent insomuch that hee commeth in peramount him and to the other he intended that the speciall non-tenure is a good plea as well in Scire facias to have execution of damages as of Free-hold as in 24 Edw. 3. 31. and 5 H. 5. 1. and 9. H. 5. 11. It is resolved that in Scire facias speciall non-tenure is a good Plea and the books of 8 H. 6. 31. cyted before there is Joynt-tenancy pleaded to one part and speciall non-tenure to the other part by Lease for years and the question is if it might be pleaded a part And in 8 Edw. 4. 14. Is Scire facias upon Recovery by Writ of Right Patent in base Court and that the Defendant cannot plead release of the Lessor and so the joyning of the Mise may be forfeiture of his Estate And he said that it was adjudged in 16 Edw. 3. Scire facias 5. that scire facias to have execution of a Fyne shall not be sued against a Lessee for years but against him which hath the Free-hold but where Debt or Damages are to be recovered there it may be sued against him which hath only Lease for years insomuch that the possession is to be charged and so he concluded and prayed Judgement for the Defendants and it is adjourned Michaelmas 1611. 9. Jacobi in the Common Bench. Crogate against Morris THe case was this Copy-holder prescribes to have common in the Waste of the Lord and brings action of Trespasse against a stranger for his Beasts depasturing upon the Common there and Harris Serjeant argued that this action is not maintainable for two causes First insomuch that he is a Commoner for as it is said by Brook Justice 12. H. 8. 2. a. Commoner cannot have an action of Trespasse for the Common is not Common but after the Commoner hath taken that and then before that he hath taken that he hath no wrong nor damage but the damage is to the Tenant of the Land As if a Lessee for years be outed and he in reversion recovers in Assise hee shall not have damage insomuch that the damage was made to the Lessee and the 22 Assis 48. 15 H. 7. i 2. b. agreed that Commoner cannot maintain action of Trespas nor no other but the owner of the Soil but 13 H. 8. 15. by Norwich 15 H. 7. 6. 5 H. 7. 2. 24 Edw. 3. 42. Commoner may distrain and avow for doing damage 2. He intended that this action is not maintainable insomuch that every other Commoner may also have the action of Trespasse for if it be wrong to one it is wrong to every one of them and so the stranger shall be infinitely punished as in Williams Case 5 Coke 72. b. where it was adjudged an action of the Case doth not lye for the Lord of the Mannor to prescribe that a Vicar ought to administer the Sacraments in his private Chappell to him his Men-servants and Tenants within the Precincts of the said Mannor and adjudged that it doth not lye insomuch that then every of his Tenants might also have action and so the Vicar shall be alwayes punished So in 27 H. 7. 27. a. A man shall not have an action upon the Case for nusance made in the high way so it is 5 Ed. 4. 2. for trenching in the high way see 33 H. 6. 26. a. accordingly and so he concluded that the action is not maintainable and prayed Judgement for the Defendant Dodridge the Kings Serjeant to the exception which hath been made by the other party that the Plaintiff ought to averr that he hath Beasts which ought to Common there and that his Beasts have lost their Common that need not to be averred but it shall be pleaded by the other party for if he have distrayned the Beasts of a stranger doing damage he need to averr no more in this action and to the other matter and the two Objections which have been made by the other part First that the Commoner hath no right to the Common till he have taken it by the mouth of his Beasts to that he said that the Commoner hath right to that before that it be taken by such mouths of his Beasts and notwithstanding that it seems by the time of Ed. 1. That Commoner cannot grant his Common till he have Seisin of that yet 12 H. 8. is otherwise and that a Commoner may have an action the name implyes for he hath Common with others and a stranger which is no Commoner cannot do wrong but this is damage to him and he cyted Bracton 430. that there are two forms of Writs 1. Cursitory Writs 2. Commanding Writs The first of those which are formed and are of course and the others such of which there is no form but are to be formed by the Masters of the Chancery according to every particular Case So that there is not any Case but that the Law affords a Writ and remedy for that as in 28 Edw. 4. 23. Action upon the Case was framed against an Officer which gave priviledge to one as his servant which was not his servant and it is not like to the Case in 11 H. 4. 47. a. where a School-master brings an action upon the Case against another for erecting of a School in the same Towne to his damage but this was damage without Injury But here the Commoner hath received wrong and damage but yet he agreed that the Commoner could not have action of Trespass why he broke his Close for that is proper for the owner of the Soile But it hath been agreed to him that he might distrain them doing damage and the reason of that is insomuch that he hath received damage and amends may be tendered unto him in recompence of his damages without any regard to other Commoners as it is agreed in 24 Edw. 3. 42. And to the Objection that if one Commoner may have action then every Commoner may have the action and so the stranger shall be infinitely punished And to that he said it is a Publique losse and private and when the publique wrong includes private damage to any man there he
was a good Custome insomuch that this was annexed to an Estate created by custome and for that he cited one Skeggs case to be adjudged in 24 yeare of Eliz. and was thus that is The custome of a Mannor was that a marryed wife Copy-holder might surrender to the use of her last will and after might devise to her Husband and it was adjudged insomuch that this was annexed to her Estate which begun by custome this was a good custome and the 3 of Ed. 3. At the common Law such custome is voyd and after he cited a Judgment in the point given in this Court 23. of Eliz. Rot. 5014. or 504 or 5004. that the same custome was adjudged a good Custome after he answered some objections which might be made against this custome that is First for the uncertainty of the time when the presentment shall be by the Homage and to that he sayd that the Lord may make that when he will and the time doth not take away the offence and no prejudice upon that discends to the Heir but is to his advantage Secondly Because no number certaine of the Homage and that every tryall must be by twelve and to that he answered that we are not now in point of Tryall but only for the information of the Lord. Thirdly this is against the nature of a Court-Baron to inquire of Felonies and to that he said there is not any inquiry made here but only to inform the Lord and such a thing is not against the nature of the Court which inlargeth this Fourthly The offence is against the King and a common person shall not have the punishment of that to that he sayd the King shall not have any benefit of it for he shall not have any Escheat of Copy-hold lands for Treason or Felony Fiftly This is against the Kings Prerogative to that he sayd that Custome may be against the Prerogative of the King as if a man claim Waife or stray by prescription these are things given to the King by his Prerogative and yet Prescription for them is good and so he concluded this first point that the custome was good To the second point he conceived that this verdict and acquittall shall not conclude the Lord and for that he sayd that at the Common Law if a Verdict had been given and no Judgment upon it the party was not concluded to bring the same Action 18 Ed. 3. 35. Then comes the Statute of 2 H. 4. And this outs non-suit after verdict and yet if verdict be imperfect or finds a thing not in Issue there non-suit may be after verdict as it is sayd in 22 Ed. 4. 10. And if verdict be given in the point and Judgment upon that doth not conclude the party to have action of more high nature as it is sayd in 3 Ed. 3. and 3 Assise 1. and Hudsons ease in the 4 Coke and as it is in Tryalls of Land so it is in tryalls of life as 2 R. 3. 14. 7 H. 4. 34. Then if the party himself shall not be bound by verdict A fortiori a stranger shall not be also every Estoppell there ought to be a matter of estoppell for the Jury is not sworn to give their verdict according to the truth in Deed but according to the evidence to them given and then if faint evidence or no evidence be given it shall be hard that this shall conclude any of his right also there is no party to be estopped because a stranger as is aforesayd also the acquittall is in such manner that is that he hath not committed the Felony in manner and form as in the Indictment is alledged and this doth not answer the Custome because generall so it seems to him that this shall not be any conclusion to the Lord and so for both points the entry not congeable And Stevens to the contrary and it seems to him breifly that the custome was not good and he denyed the Rule that is that this might have reasonable beginning by agreement of parties shall make a custome good and for this Littleton saith in his chapter of villainage that if the Lord of one Mannor will prescribe to have Fine if any of his Tenants marry their Daughters without his license this is a void custome and yet it may be such agreement between the parties at the first and it seems the custome not reasonable for it is too generall that is if any Tenant and this doth not exclude Infants Secondly if any Felony be committed and this includes petty Larceny and Maime by involuntary means for these are Felonies and for that see 13 H. 7. 19. 6 H. 7. That in Appeal of Mayme a man shall count Felony and yet it shall be hard that a man shall loose his Land for these Felonies Secondly Homage cannot inquire of the fact of Felony but of the conviction of Felony and so it seems to him the custome ill and to the other point it seems that the Lord shall be concluded and to that that hath been objected that the Lord is a stranger to the verdict and for that cause shall not be estopped he said that the Lord is no stranger for in this case every man is party and every man may give Evidence for the King and he cited the case in the time and title of Mortdancester where the case was where a man was as principall for the Death of J. S. and another as accessary in receiving the Principall after the principall was out-Lawed and the Accessary hanged and the Lord seised the Land of the Accessary for Escheat after came the principall and reversed the Out-Lawry and was found not guilty and the Heir of him which was hang'd entred upon the Lord and adjudged insomuch that there cannot be an Accessary unless there be a principall that the entry of the Heir was lawfull in this case so he sayd in this case insomuch that the Copy-holder is acquitted by verdict and found not guilty and seems to him that the entry of the Lord should not be lawfull and by the whole Court the custome was good but they did not deliver any opinion upon the second point for they moved the parties to Composition Hillary 7. Jacobi 1609. In the Kings Bench. Barwick and Fosters Case A Man made a Lease for two years at Michaelmas rendring two shillings yearly during the Tearm at the Feast of the annunciation of our Lady and Michaelmas or ten dayes after at the Feast of Saint Michaell in the last year the Rent is not paid the question was what remedy the Lessor hath for his Rent of this halfe yeare and the opinion of Flemming cheife Justice and Williams was that he hath no remedy And first they sayd as this case is the Lessee hath election to pay either upon the Feast or upon the tenth day after and that is for the benefit of the Lessee then he hath made his Election not to pay that at the Feast of Saint
cited the book of 24 Ed. 3. Where a Tales was returned by the Sheriff of Middlesex and the party challenged the Jury because he sued the Sheriff for the death of his Servant and this was a principall challenge for in such case his life was in question the same Law in case of Maintenance and Champerty for the Law hath inflicted great punishment upon such Offences so these matters tend to utter subversion of his Estate and life but otherwise in Actions of Trespasse and so he concluded no principall challenge To the abatement of the Writ it seemes no Error First he conceived that there is no entry and for the reason that Crooke had given before that is because he entred to hunt and not to keep possession and hath not shewed any Warrant to kill the Buck and he cited the book of the 5. of Ed. 4. fol. 60. Where Babington brought an Assise of the house of the Fleete and hanging the Assise Babington came to the Jury within the house when they had the View with his Councell to shew Evidence for the view and this was not any entry to abate the Writ and so the entry to hunt is an entry for another purpose then an entry to keep possession not being by warrant as it is not found and for that no entry to abate the Writ But admitting that this had been an entry to abate the Writ yet being a thing which doth not abate the Writ without Plea and that cannot be pleaded as the case is he conceived was no Error but if it had been a thing which abated the Writ in Facto without Plea then to give Judgement upon a Writ abated is Error As if the party die hanging the Writ or if a woman sole brings an Assise and takes a Husband hanging the Assise or if the Plaintiff in a Assise be made Judge of Assise as the 15. of Assise in all these cases the Writ is abated in Facto without Plea But entry shall not abate the Writ without Plea and so it seemes to him no error But he conceived that there were two other errors for which he reversed the Judgement The first was that this Assise was de Libero Tenemento in Clepson and the plaint was of the keeping of the Park of Clepsom and of the Herbage and Paunage of the Parke aforesaid called Clepsom and made his Title for Herbage and Paunage of the Park of Clepsom and so he conceived that there is variance between the Plaint and the Title and Park of Clepsom and Clepsom cannot be intended one without speciall averment and for that he conceived it to be errour And to that he cited the case of twelve Assises two Where in attaint the first originall was of the Mannor of Austy and the Attaint was of the Mannor of Auesty and yet for that that the Attaint is founded upon the Record and not upon the Originall and the Record was of the Mannor of Auesty this was very good but the Booke saith that this variance between the Originall and the Record was sufficient to reverse the Record for errour and the case in 42 of Ed. 3. Where Scire facias was brought of Tenements in Eastgrave and the Fine was of Tenements in Deepgrave and for the variance the Writ abated and in the case of 5 Coke 46. Formedon was brought of the Mannor of Isfeild and the Tenant pleads in barr a recovery of the Mannor of Iffeild and this shall not be amended unlesse it appear that this is a misprision of the Clark or by other averment he cited also the case of 3 H. 4. 8. Scire facias upon garnishment in a Writ of Detinue of writings the Originall name John Scripstead and the Scire facias was made Iohn Shiplow and therefore agreed that he shall sue a new Scire facias so he said in the Principal case the Plaint being of Herbage and Paunage of Clepson Parke aad the title being at Clepsom Parke these shall not be intended to be the same Parke without averment and there in no averment in our case and for that such variance is such errour that shall reverse the Judgment The second errour for which he reversed the Judgment was that which was moved by Justice Crook that the Jury have not found any seisin of the Paunage for it seemed to him that a Horse could not take Seisin of paunage and for that he defined paunage and he sayd that Linwood title-Tithes saith the Paunagium est pastus Porcorum as of Nuts and Akornes of trees in the wood and Crompton saith that this is Pastus Porcorum and he saith that Paunagium is either used for Paunage or the Paunage it self and the Statute of Charta de Foresta saith that every Freeman may drive his Hoggs into our royall Wood and shall have there Paunage but he doth not say Horses or other Beasts but he conceived that if the Earle of Rutland had right in the Park that this had been sufficient seisin of Herbage and Paunage also for Hoggs will feed upon grass as well as upon Akornes and he cited the Book of 37 H. 6. saith that Seisin to maintain an Assise ought not to be of a contrary nature to the thing of which seisin is intended to be given but in one case only and that is where the Sheriff gives seisin of a Rent by a Twig or by a Clod of Earth and this is in case of necessity for the Sheriff cannot take the Money out of the purse of the Tenant of the Land and deliver seisin of that and for that he cited the case in 45 Ed. 3. Where Commoner comes to the Land where he ought to have Common and enters into the Land and the Lord of the Waste or the Grantor of the Common outs him he cannot have an Assise of his Common upon this outing for this was not any seisin of the Common so it is in this case the Horses cannot take Seisin of the Paunage and so there is no seisin or disseisin found by the Jury and then no Assise and this being after Judgment no abridgment may be of the Plaint and so for these last reasons he reversed the Judgment And at another day the case was rehearsed again and argued by Yelverton and Fenner Justices but I did not hear their Arguments insomuch that they spake so low but their opinions were declared by the cheife Justice and Yelverton affirmed the Judgment in all First he held that this entry shall not abate the writ Secondly admit that it is abated yet being between Verdict and Judgment shall not be assigned for errour Thirdly he held that no principall challenge Fourthly he held both the grants good Fifthly that Clepsam and Clipsam are all one and not such variance that shall make Errour And lastly that a Horse may well take Seisin of Paunage and Fenner agreed in all but he held that this was a principall challenge and not being allowed this
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
Booke of 33 H. 6. 47. is but the opinion of Prisot and Lacon And the principall case there depends upon another point Fitz. 246. before cyted is but a quere and Eitz himself doubted of it and the book of 44 Edw. 3. Fitz. Execution 41. is but the opinion of Percye But the Judgment upon the principall point is otherwise And the principall case in Blunfields case 5 Coke was upon another point also as it appears by the Booke and so he concluded with the Judgment before cyted to be in the Kings Bench Pasche 43 Eliz. between Williams and Cuttris which was direct in the point according to his opinion and prayed Judgement for the Defendants in the Scire Facias and it is adjourned This Case was argued in Trinity Tearm next ensuing by all the Judges of the Common Pleas and first Foster the youngest Judg argned that the death of the Defendant in Prison being in Execution was no satisfaction but the Plaintiffe may have a new execution against his Executors for he said it was an old saying That debts went before deadly sinne And that every one ought to satisfie his debts by the Law of God before Legacies given to charitable uses And so by the Law of the Realm if it be not the default of the Plaintiffe as it was not in our Cause for the death of the Defendant in Prison was the act of God and the Executors have confessed by pleading that they have assets and the Plaintiff hath nothing but griefe and pain and he said as before that at the Common Law no Capias lay till the Statutes of Marlebridge Chap. 23. and Westminster the 2. Chap. 11. Capias was given in Accompt and then the statute of 25 Edw. 3. Chap. 17. gives such like Processe in debt which was in Accompt and then in Accompt Capias ad Computandum lyes and in debt Capias ad Satisfaciendum And if in Accompt the Defendant was adjudged to accompt and Capias ad Computandum be awarded and he taken by force of that and committed to Prison and here dyes a new Writ shall be awarded So in debt if the Defendant be taken by Capias ad satisfaciendum new Writ shall be awarded against his Executors see 1 Edw. 3. 24. 1 H. 7. 5 Coke 92. Blundfields case for it is only the default of the Defendant that the debt is not satisfied and for that it is no reason that the Plaintiff should be prejudiced by that and 11 H. 4. 44. and 45. by Skreene Debt upon an Escape doth not lye against the Executor of the Sheriff but new Processe shall be awarded against the Prisoner which is escaped for a man shall not take advantage of his own wrong as in the case of Littleton If the sonn makes disseisin and enfeoffs the Father which dyes the sonne shall not take advantage of this Discent because he was particeps criminis and he said it was no wrong to any if execution were made of the goods of the Testator and it is mischievous to the Plaintiffe for he shall loose his debt And to the Objections which have been made that there is an end of Processe when the Defendant is taken by Capias and dyes in Execution the which he agreed as long as the Defendant lived but after his death he may make new election 47 Ed. 3. Fitz. Execution 41. by Percye And it appears by the pleading in 17 Ed. 3. That Judgment Execution without satisfaction is no Plea in Bar. And also he cyted the Register 285. and Fitz. Na. Bre. 246. 19. Ed. 3. 21 H. 6. 5. where the Plaintiff had effectual execution which was satisfaction 44 Ed. 3. 21 Edw. 4. 1 Edw. 4. 8 H. 7. 16 H. 7. to the same purpose for which Dodridge cyted them before And also he said that the Judges have always had respect to the satisfaction of Debts and for that would not bayle one in Execution upon a Writ of Errour where Errour indeed was assigned but suffers him to remain in Prison till the Judgment were reversed But here the Plaintiff hath neither Bale nor any satisfaction but griefe and pain And in the 21 of H. 7. the Sheriff returned that the Defendant had no land but lands in use and was adjudged that he should execute the Elegit upon these Lands such was the respect that the Judges have to Executions and to the Case of 35 H. 6. 47. This is but the opinion of Lacon which erred in the principall case and may as wel erre in this point and his opinion also is so intricately penned that he cannot understand it And Martins opinion also in 7 H. 6. 7. is against the Judgment of the principall case And to the Objection that the Party had determined his Election by the Execution of the Capias he agreed to that with this difference that is if the Plaintiff sue Scire facias the Sheriff levyed part that this notwithstanding the Plaintiff may have Capias for the residue and so Elegit after Fieri facias or Capias for there is not any Entry made of awarding of fieri facias or Elegit But the Plaintiff only sued that out of the Court see 44 Edw. 3. 18 Ed. 4. 31 Ed. 3. 17 Ed. 3. 20 Ed. 2. 22 Assis 17. H. 7. 1. And so he coucluded that the Judgment shall be given for the Plaintiff in the scire facias Warburton Justice conceived the contrary that is that the Plaintiff in the Scire facias shall be barred And he agreed and said that none will deny but that Debts shall be paid but that ought to be according to the rules of the Law For by the Common Law the body of the Defendant was not lyable to execution and then it is to examine in what cases he is at this day subject to execution and though in Trespasse Capias lyes at the Common Law but in Debt no Capias lyes till the Statute of 25 Edw. 3. which gives the same processe which was in Accompt and this is as well in the Originall processe as in the Judiciall and Elegit was first given by the statute of Westminst 2. And this was of the half of the Land But Levari facias was at the Common Law of the profits of the Land That in debt Acceptance and Election binds the party and so this remains for the said Statutes being in the affirmative doth not take away that nor abate it and by that if Conusee of a statute accepts Land extended at too high a value he is bound by that 22 Edw. 3. 32. H. 6. 15 H. 7. And that when the Party hath Judgment he hath election to have execution by Fieri facias Elegit or Capias for he hath determined his Election So if he makes his Election of a Capias at first he cannot have Elegit after 30 Edw. 3. adjudged 32 Edw. 3. Processe 52. according Long 5 of Edw. 4. by Markeham and others and the reason which is given in
in Prison and agreed that if 2 Precipes are contained in one Originall there shall be but one satisfaction But if one be taken by Capias and remains in Execution Capias shall be awarded against the other and he shall remain in Prison till satisfaction be had for execution is no satisfaction as it is said in 29 H. 8. b. Execution 132. adjudged See 4 Ed. 4. 38. 5 Ed. 4. 4 H. 7. 8. And Hillaries case 33 H. 6. And to the third that is that the Debt remains after the taking of the body in execution and agreed that when execution is made of goods or lands no Debt remains but otherwise it is of execution of the Body as it appears by 29 H. 8. before cyted B. Execution 132. and 41 Assis 15. where a man was condemned in Damages in Trespass and committed to Prison by Capias and escaped the Gaoler dyed the Plaintiff prayed debt against his Executors and could not have it for they are not charged without specialty and the Plaintiff alleadged that the Defendant was vagrant in the County of M. and prays Capias to the Sheriff of M. to take him and it was granted for his remedy against the Sheriff was determined and this proves also that the Debt remains after escape scire facias is licet Judicium redditum sit tamen executio restat ad huc facienda de debito for the body is but as a pledg the form of the Writ in the Register Capias ad satisfaciendum and not in satisfaction which proves that there is no satisfaction but upon the payment of the money his body shall be delivered out of Prison this is execution with satisfaction for there are two Executions that is Medius finalis the first is the Capias the second Satisfaction which is Vltimus Finis And it is a good rule quod nihil videtur factum ubi aliquid restat faciendum and here is aliquid faciendum that is Satisfaction for in all acts there is a beginning progression and consummation Consummation in this case fails Mors est horendum divortium which is the act of God And when the act of God hath delivered him which lyes in prison for his own default it is no reason that the Plaintiff should be prejudiced 43 Ed. 3. 27. A man enfeoffs the Father with Warranty which infeoffs an estranger which enfeoffs the son the father dyes the son may vouch for it is the act of God And to the Mischiefs nec crudelis creditor nec delicatus debitor sunt audiendi for they play at Bowls and keep Hospitality in the Prison Or if a man be arrested and makes a tumult and is slain in indeavouring to break the Prison and breaks his Neck it is no reason that he by such act should defraud the Plaintiff of his Debt the opinions against him are coupled with absurdities as 7 H. 6. 8. Martins opinions is also imparted with absurdity 33 H. 6. 48. The opinion of Lacon is also coupled with another absurdity and 22 Assis b. Execution is also coupled with absurdity that is if the Defendant escape this determines the debt and is satisfaction and 15 Edw. 3. Quare Impedit 174. in Writ of Right of Advowson the Plaintiff hath Judgment and habere facias sesinam in the life time of the Incumbent and after his death sues Scire Facias the first is Execution but not with satisfaction and the last is satisfaction for by this he hath the fruit of his Judgment So 19 Ed. 3. Execution 12. a younger statute is extended and Liberate sued executed and returned And after an elder statute is extended and after satisfaction of that he that hath the youngest may sue Scire Facias and have execution of the youngest So of Beasts distrained and put into the Pound and there dye he which distrayned may distrayâ— again for this is no satisfaction of his Rent 14. H. 4. 4. 15 Edw. 4. 10. 11 Eliz. Dyer 280 And so Capias ad computandum is not Accompt nor Capias ad acquietandum Acquital Register 30. 39. 285. And it is said in Bract. lib. 7. Chap. 17. Sunt brevia Magistralia fâ—rmata the first are made by Masters of the Chancery the others which are Originall by Cursitors which are founded by acts of Parliament and cannot be changed without Parliament and as Fitzherbert in his Preface to his Na. Bre. saith that every Art and Science hath certain Rules and Foundations to which a man ought to give faith credence and the Writ of Fieri facias being founded upon a Statute and the form that executio adhuc restat facienda he saith that this was the Judgment of the Parliament that the first Execution was not Satisfaction But as the Writ is also in the Register 245 That where a man is condemned in Trespasse and committed to prison detinendum quousque he satisfie the party by this it appears that he is but a pledge And Fitz. Na. Bre. 63. 65. 67. and Register If a man be taken by Capias Excommunicatum ad satisfaciendum parendum Clavibus Ecclesiae and is delivered by Writ which issues improvide another Writ of Capias shall be awarded And to the matter of Election he agreed that if Elegit were awarded the party cannot have Fieri facias nor Capias for there is Entry made quod Elegit sibi executionem de meditate But when Fieri facias or Capias is awarded no entry at all is made But if any of them are returned executed then he cannot resort to another Processe and with this difference agrees all the Books of 15 H. 7. 15. 21 H. 7. 19. 30 Ed. 3. 24. 31 Edw. â—3 Process 52. 19 H. 6. 4. 34 H. 6. 20. 45 Edw. 3. 19. 50 Edw. 3. 4. and 5. 18 Edw. 4. 11. 20 Edw. 4. 13. 11 Eliz. Dyer 296. And to the case of Williams and Cuttrys cyted to be adjudged 43 Eliz. the which he cyted as Lambs case he said in this was many apparent Errors in forme of pleading so that the matter in Law cannot come to Judgment 35 H. 6. Prisot seemed that by the law of God the Imprisonment of the body of a man was no satisfaction for by that the Creditor may sell his Debtor and his Children for the payment of his Debts Matth. chap. 18 vers 24. 4 Kings 4 Chap. vers 1. Matth. chap. 5. Luke chap. 12. And so he agreed with Foster in opinion and concluded that the death of the Defendant in the action of Debt was no satisfaction nor determination of the Processe nor of the election But that the Plaintiff may have new Execution against the Executors and by consequence that Judgment shall be given for the Plaintiff in the Scire facias but no Judgment was given for that there was equality of opinions that is Coke and Foster against Walmesley and Warburton Danyel being dead and for that it was adjourned Pasche 8. Jacobi 1610. See Hillary 7. Jacobi the beginning Chalke
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