his owne just Debt for every Creditor by such meanes when the goods be not sufficient would strive to make himselfe Executor De son tort to satisfie himselfe and barr others c. And it is not reasonable that one should take advantage of his owne wrong Non facies malum ut inde fiat bonum melius est omnia mala pati quod malo consentire It is also cleere that all lawfull acts that such an Executor doth or disseisor or an abator c. are good Hargraves Case 41. and 42. Eliz. banco regis fo 31. LEssor bringeth Debt against the Administrator of the Lessee for yeares for rent due after the Administration committed in the Debet and so it ought to be because he himselfe tooke the profits and nothing is assets in his hands but the profits besides the rent but in all Actions brought by Executors as Executors the Writ shall be alwaies in the Detinet tantum although the duty accrew in their owne time Pettifers Case 45. Eliz. banco regis fo 32. UPon a fieri facias de bonis testatoris the Sheriffe returneth Nulla bona a Writ issueth to the Sheriffe to inquire by inquest if the Executors have wasted and how much who returneth that they have and judgement given against them De bonis proprijs they bring error in redditione Executionis and the Execution was reversed for the course is upon Nulla bona to have a speciall Fieri Facias to make Execution De bonis proprijs if they have wasted and if the Sheriffe so doth where they have not wasted they have remedy against him but if he taketh an inquest and returneth it although it be false there is no remedy against the Sheriffe or any other Robinsons Case 1. Jac com banco fo 32. EXecutor brings Debt as Administrator and is barred by Plea that he is Executor he may bring Debt as Executor for he was barred as to the Action of the Writ to have Debt as Administrator but not to the Action Reades Case fo 33. 2. Jac. com banco WHen a man dyeth intestate and a strange person taketh the goods of the intestate and useth them or sells them this maketh him an Executor of his owne wrong for when none assumeth to be Executor nor takes Letters of administration there the using of the goods is sufficient to charge one as Executor De son torte for those to whom the Deceast was indebted unto have not any other in this case against whom they may bring their actions for recovery of their Debts When an Executor is made and he proveth the Testament or assumeth upon him the charge and doth administer in this case if a stranger take any of the goods and claime them for his owne this doth not make him an Executor of his owne wrong because there is another lawfull Executor A lawfull Executor shall not be charged but with the goods that come to his hands after that he assumes upon him the charge of the Will c. but if another man first take the goods c. before the lawfull Executor hath assumed the Execution or proved the Testament in this case he may be charged as an Executor of his owne wrong Constructeon of the Statutes of Jeofails c. Amendment of Records Fines Recoveries c. Playters Case 25. 26. Eliz. Banco regis fo 34. THe Defendant was found guilty in trespasse Quare clausum fregit pisces suos cepit and damages assessed intirely it was moved in arrest of judgement because in the Count neither the nature nor the number of Fishes was shewed It was answered by the Plaintiffe That the Defendant is found guilty to damages and so Non refert of what nature or number they are 2. That the Fishes themselves are not to be recovered but damages for them therefore no need to shew the certainty 3. All the damages shall be intended to be given for the close broken which is laid in the Declaration 4. It is matter of forme ayded by the Statute of 18. Eliz cap. 14. But judgement was stayd for the Office of the Declaration is to reduce the Writ to certainty for otherwise upon such a generall Issue if the Jury give a false Verdict they cannot be attainted and damages shall be intended to be given for all because they are intire but if they had beene severed the Plaintiffe shall recover for so much as is well pleaded and this is matter of substance and not of forme because it is no default of the Clerke but of the Plaintiffe and therefore not aided by the Statute Walcots Case 30. Eliz. banco regis fo 36. DEbt was brought against Baron and Feme in the Detinet tantum upon an Obligation by the Feme before Marriage it ought to be in the Debet and Detinet because the Baron had the goods of the wife in his owne right and for that reason debt is brought against the Heire in the Debet and this is matter of substance and point of the Action not remedied by the Statute of 18. Eliz. c. 14. Baynehams Case 30. Eliz. in Scaccar fo 36. AN Ejectione firmae of Lands in A. B. and C. tryed for the Plaintiffe by a Visne out of A. onely this is insufficient and not remedied by any Statute Gardiners Case 21. Eliz. Banco regis fo 37. 23. Jurors are returned 12. appeare and finde for the Plaintiffe this is remedied by 18. Elizabeth cap. 14. Bishops Case 34. Eliz. banco regis fo 37. VAriance is betweene the Writ and count in name the Plaintiffe recovers the Defendant bringeth Error the Writ was remov'd into the Kings Bench and the judgement was reversed because the Statute remedieth where there is no Originall but not where the Originall is vitious and although it were removed after pleading c. yet because the fault appeared to the Court the judgement was reversed Teys Case 34. Eliz. Banco regis fo 38. BAron and Feme levy a fine to one who grants and renders to them two and to the Heires of the Baron and after renders part to the Feme in taile the remainder over the Heire of the Husband brings a Writ of Error and assignes for error the said Variance 1. Resolved that there needeth not a precise forme in render upon a fine but it shall be in this case construed as a grant by Charter for it is but a grant of record 2. There are five parts of a fine 1. The Originall 2. The License to accord for which the Kings Silver is due and ought to be entered upon the Writ of Covenant and the summe and he who payeth it that is he in whom the fee reposeth the Plea and betwixt whom c. and the Land ought to be mentioned 3. The concord which is the substance of the fine for if upon that the Kings silver be paid although the party dye the fine is good 4. The Note which is many times taken for the Concord And lastly the Foote of the
limitation of any estate Resolved that when the Lord admits Cestuy que use for life the reversion is in him that surrendered not in the Lord for he is but an instrument Resolved that a man may surrender to the use of his Wife though that Cestuy que use is in by him that surrendered because the Husband did not doe this immediatly to the Wife but by a second meanes Viz. By surrender to the Lord and by admittance of the Lord. Resolved that when B. surrendered out of Court and before that 't was presented in Court he dyes yet after being presented according to the custome 't is good otherwise if it had not beene presented according to custome so if the Tenants in whose hands c. dyes yet if it be proved 't is good enough so Queintons Case before if Cestuy que use c. dyes before admittance his Heires shall be admitted Downe and Hopkins Case 36. of the Queene fo 29. REsolved that where the custome of a Mannor was to grant Coppies for one two or three lives that a grant to a Woman during her viduity is within the custome for 't is an estate for life but every grant for life is not Durante viduitate issue was whether the custome was that the Wife of a Copy-holder after the death of the Husband should have for life and 't was given in evidence that she should have during her viduity and adjudged that the evidence did not maintaine such custome for 't is a lesse estate then for life But in the principall Case 't is a greater estate which is warranted by the custome and therefore a lesse is within it according to Graveners Case before 'T was said that a Lord may retaine a Steward by word to hold Courts c. as a Bayliffe and this retainer shall serve till he be discharged Harris and Jayes Case 41. of the Queene fo 30. REsolved that a Lord may retaine one to be Steward of his Mannor and to hold Courts by word as in the Case before Resolved that where a Copy-hold escheates by attainder of felony of a Copy-holder of the Queene that the Steward may grant it over Ex officio without speciall warrant for the custome warrants the Steward to grant it and this shall binde the Queene and her Heires c. But yet his duty is before to informe the Lord Treasurer Chancellor or Barons of the Exchequer or any of them for his better direction Resolved that the Auditor or Receiver of the Queene hath no power to retaine a Steward to hold courts c. But it behooves that the Steward who makes such voluntary grants upon escheats or forfeitures to be good to have Letters Pattents of the Stewardship of the same Mannor And 't was said that 't was adjudged in the Lady Holcrofts Case that where one was retained generally by word to be Steward of a Mannor and to hold Courts that he may take surrenders of customary tenants out of Court Shaw and Thompsons Case 33. of the Queene fo 30. REsolved that a Woman shall not be indowed of Copy-hold without speciall custome and that when a Woman is to be indowed by custome she shall have all incidents to Dower and shall recover damages by the Statute of Merton because her Husband dyed seised and therefore the recovery of damage of 50. l. in the Court of the Mannor was allowed though this exceeded 40 s Resolved that no Action of Debt lyes for these damages at common Law for upon such judgement no error or false judgement lyes but the remedy is in the Court of the Mannor or Chancery Fenner Justice said That he had seene a Record 36. H. 8. where the Lord by Petition to him had for certaine errors in the proceeding reversed such a judgement and upon this the Defendant maintained an Audita quaerela to be restored to the damages recovered against him See 14. H. 4. cited before in Brownes Case And 7. E 4. 29. Hoe and Taylors Case 37. of the Queene fo 30. REsolved that Underwood growing upon parcell of the Mannor may by custome be granted by Copy of Court roll and 't is a thing of perpetuity to which a custome may extend for after every cutting the underwood growes Ex stipitibus So 't was resolved that Herbage or any profit of any parcell of the Mannor may by custome be granted by Copy and 't was said that a faire appendant to the Mannor of C. in S. is granted by Copy and this explaines the reason of the first pillar in Murrels Case Frenches Case 18. 19. of the Queene fo 31. REsolved if the Lord Lease for yeares life or make any other estate by deed or without deed of Copy-hold Land forfeited escheated c. to him that this Land can never be granted againe by Copy for the custome is destroyed for during these estates the Land was not demised nor demisable by Coppy So if the Lord make a feoffement and enter for condition broken but if the Lord keepe it in his hands a long time or leases it at will he his heires or assignes may regrant it So if the interruption be tortious as by disseisin and discent false verdict or erroneous judgement for Non valet impedimentum quod de jure non sortitur effectum quod contra legem fit pro infecto habetur But if it be extended upon a Statute or recognizance acknowledged by the Lord or if the Wife of the Lord hath this Land assigned to her in Dower though these impediments are by act in Law yet for that the interruptions are lawfull the Land cannot be after granted by Copy If a Copy-holder accept a Lease for yeares of the Lord of his Copy-hold 't is destroyed for ever If a Copy-holder take a Lease for yeares of the Mannor his Copy-hold hath not continuance Hides Case adjudged 17. of the Queene But there 't was resolved that such Lessee might regrant the Copy to whom he would for the Land was alwayes demised or demisable If a Coppy-hold be surrendered to the Lessee his Executors or assignes may regrant it If a Copy-hold escheate to the Lord his alienee by fine feoffement c. may regrant it Foiston and Crachroodes Case 29. and 30 of the Queene fo 31. ADjudged that where a Copy-holder in pleading alledges Quod infra Man praed talis habetur nec non a toto tempore cujus c. habebatur consuetudo Viz. quod quilibet tenentes praedictorum tenement vocat C. have used to have common in such a place parcell of the Mannor and that he is a Copy-holder of the said Tenement that this custome as well for the matter as the forme was good for the Copy-holder cannot prescribe in his owne name for the exility and basenes of his estate and if he had claimed common in the soile of another he ought to prescribe in the name of the Lord Viz. That the Lord and all his ancestors and all those whose estate c. have
it was resolved that when one hath a power of revocation yet if he suffer any thing to be lawfully executed as touching that he cannot make any revocation as if a man make a Letter of Attourney to another to doe any thing before Execution he may revoke it but after Execution lawfully done it cannot be revoked if one to whom another is indebted be Outlawed and he that oweth the money payeth it to the King and the Outlary is after reversed yet the Creditor shall recover his Debt against the party if the goods of an Outlawed person be sold by the Sheriffe upon a cap. utlagat ' after the Outlary is reversed by Error the Defendant shall have restitution of his goods for the Sheriffe or Escheator is not compellable to sell the goods but he may keepe them to the use of the King agreeing to the Booke 20. Eliz. Dyer 363. but if a Sheriffe by vertue of a Fieri facias sell the goods and after the judgement be reversed by error the Defendant shall not have restitution of the goods but the value of them for which they were sould And the reason is the Sheriffe is compellable to Levy the Debt of the goods of the Defendant and therefore great reason that the Sale should stand Semaynes case 2. Jac. fo 91. Banco regis THat the House of every man is to him as his Castle and Fortresse as well for his defence against injuries and violence as for his repose that if a man kill another in his defence or permisfortune without any intent yet it is felony and he should loose his goods and Chattells for the great regard that the Law hath to the life of a man But if Theeves come to the House of a man to rob or murther and the owner or his servant kill any of the Theeves in defence of him or his House this is not felony neyther shall he loose any thing any man may assemble his Neighbours or friends to Guard his House against violence but he may not assemble them to goe with him to the Market or abroad to safe-gaurd him against violence and the reason of all this is Domus sua cuique est tutissimum refugium It is resolved that when any House is recovered by any reall Action or by Ejectione firmae the Sheriffe may breake the House and deliver seisin or possession It was also resolved that in all cases where the King is party the Sheriffe may breake the House if the Doores be shut and make Execution of his Writ but before he breake the House he ought to signifie the cause of his comming and make request to have the Doores opened West 1. ca. 17. which Act is but an affirmance of the common Law but if the Officer breake the House when he might have the Doores opened he is a Trespassor 41 Ass pl. 35. For fellony or suspition of fellony the Officer may breake open the Doore in all Cases where the Door is open the Sheriffe may enter and make Execution of his writ either for body or goods at the suite of a subject or the Lord may distraine for his rent But it was resolved that the Sheriffe at the Suite of a common person upon request made to open the Doors and denyall thereof ought not to breake open the Doore or the House to Execute any processe at the Suite of any Subject or to execute a Fieri facias being a Writ of Execution but he is a Trespassor yet if he doe Execution in the House it is good in the Law being done it was also resolved that the house of a man is not a Castle or defence for any other person but for the owner his Family and goods and not to protect another that flyeth into the same or the goods of another for then the Sheriffe upon request and denyall may breake the House and doe Execution And this is proved by the Statute of West 1. ca. 17. whereby is declared that the Sheriffe may breake the House or the Castle to make replevin when the goods of another that he hath destrayned are conveyed away to prevent the owner but in this case the Sheriffe must demand the goods first Barwicks Case 39. Eliz. in Exchequer fo 93. THe Queene 28. Die Julij Anno. 26. demised the Mannor of Sutton to Humfrey Barwicktenend sibi a die confectionis It was resolved that the same 28. day of July is excluded and the demise began the 29. of July It was also resolved that an estate of freehold cannot commence In futuro but ought to take effect presently in possession Reversion or Remainder A Lease for yeares may commence in future but not a Lease for life and the reason is for that a Lease for yeares may be made without livery and seisin but an estate of freehold may not be made without livery eyther in deed or in Law and therefore when a man maketh a Lease for Life to commence at a day to come he cannot make a present Livery to a future estate and therefore in this case nothing passeth and it is all one whither it commenceth at a day to come or yeares to come for the distance of the times doth not make alteration in this Case but in the case of two joynt Lessees the Livery made to one is good in the name of both for they have an interest in the Land before their entry and livery to one in the name of both maketh an actuall possession in both which is sufficient to support the remainder to a third person in Fee Vide Claytons ' Case in the Fifth Booke Lycense to occupy Land for one yeare is a Lease for one yeare 5. H. 7. 1. in consideration of a former demise to be surrendered which was false and void is a void consideration as to the Queene Goodalls case 40. El. Banco Regis fol. 95. COnditions for payment of money touching inheritance ought to be truly performed and not covenous if they concerne a third person The Law doth not finde an assignee in Law where there is an assignee in fact Expressum facit cessare tacitum affirmed in the Exchequer chamber upon Error there brought Countesse of Northumberlands case 40. El. Communi Banco fol. 97. FItton and the Countesse of Northumberland his wife Sir Thomas Cecill Knight and Dorothie his wife William Cornewalleys and Lucy his wife and the Lady Davers Daughters and heires of the Lord Latimer brought a Quare impedit against Hall who pleaded a release of William Cornewalleys pendente breve and it was adjudged that this should but goe in barre onely against William Cornewalleys and his wife and the Writt should stand for others and all shall vest in the others because intire and in the realty presentment of the lessor and lessee is not double for the lessors onely traversable Buries case 40. El. in communi banco fol. 98. BEtween Whebster and Burie in Ejectione firmae a speciall verdict was given upon divorce between Burie and his wife
make a Lease for yeares and after enter into the Land and make wast and the Lessor recover in an Action of wast against the Lessee for life he shall avoid the Lease for yeares made before the wast committed But if a Lessee for life make a Lease for yeares and after enter and make a feoffement in fee the Lessor shall not avoid the Lease for yeares and so if a Tenant make a Lease for yeares and after is attainted of felony or dyeth without heire the Lord by escheate shall not avoide the tearme But because the feoffement in the case at barre was executed by Letter of Attourney it was resolved to be void and the Land escheated to the Queene Jehu Webbes Case 6. Jacobi com banco fo 45. THe King grants the office of the Kings Tennis plaies at W. to one who being disseised brings an assize The Patent shall have a reasonable construction not onely when the King himselfe playes but when any of his Houshould As if a Commission be made to take Singing-Boys in a Cathedrall-Church for the Kings Chappell those that Sing there for their pleasure cannot be taken but such as get their living by it There were but two manner of assizes at the common Law assizes De libero tenemento and De communia pasturae but for no other common but for this onely there is a Writ in the Register But the Statute of W. 2. c. 25. giveth it De proficuo in certo loco capiendo in lieu of a Quod permittat and although that there offices amongst other things are named yet an assize lay of an office at the common Law and although that no Tenant for life may have a Quod permittat yet an assize did lye for him but that is to be understood of an office of profit for it lyeth not of an office of charge Originall Writs made by Statute cannot be altered without Statute In an assize of a new office it ought to be shewed what profit belongs to it but not for an ancient office because that is sufficiently knowne Syms Case 6. Jacobi fo 51. TEnant in taile levyeth a fine with warranty and dyeth the warranty discends upon the issue of him in the remainder inheritable to the taile and another the issue in taile brings a formedon and is barred for all for the warranty is intire and barreth every one upon whom it discends of all his right as if one seised of three acres maketh a feoffement of one with warranty and dyes having issue two Daughters who make partition the Mother purchaseth the part of one brings dower against the feoffee who Vouches the Daughters shee shall recover all the other acre of the other Daughter if Tenant by the curtesie make a feoffement with warranty and dyes and his Sonne heire of the Feme recovers and assets discends after the feoffee shall have a Scire facias to have the Land first recovered by the Statute of Glouc. c. 3. but if assets descend to the Heire in taile bound with a lyneall warranty after recovery in formedon the Feoffee shall have a Scire facias to have the assets for otherwise if the recoverer alien the assets the issue of him will recover the Land in taile againe but in these cases the discontinuee ought to confesse the title of the Demandant and pray that if assets descend after they may discend unto him for if he plead a warranty and assets this is peremptory unto him if it be found that assets did not discend for the Statute is that a Scire facias shall issue out of the rolls of the Justices and in this case there is no ground for the Scire facias in the Record but in this case if the issue in taile pleads no assets and assets are found but not to the value the tenant shall have a Scire facias to recover the assets discended after for that false plea of the Vouchee Warranty and estoppell discend upon the heire generall and warranty barreth although that he upon whom it discends claimeth not by him that made it but so doth not an estoppell but estoppells with recompence binde the right of one who claimeth not by him that made it Roger Earle of Rutlands Case 6. Jacobi fo 55. THe King grants the pannage and herbage of a Park to M. for life and reciting this grants it to the Earle of Rutland for his life 1. Resolved the King hath three manner of inheritances 1. Some which he cannot excercise himselfe and cannot grant them in reversion or remainder as Corodies and Churches of which he is Patron 2. Others which he cannot excercise himselfe but may grant them in reversion or remainder as offices 3. Others which he may excercise himselfe and may grant as Lands Houses c. 2. The King here is not deceived for when he reciteth here that M. had for life and grants for life this inureth as by Law it may that is as a grant in reversion 3. In this case the grant to the Earle shall commence after the determination of the estate of M. and if the King grants Land to one and his Heires Habendum to him and his Assignes it is good and the Habendum shall be rejected for the honour of the King See the Lord Chandos case in the sixth Booke and when a Charter of the King may be taken to two intents good in many cases it shall be taken to such intent as is most beneficiall for the King but if it may be taken to one intent good and to another void then for the honour of the King and benefit of the Subject then it shall be taken so that it may take effect Beechers Case 6. Jacobi fo 58. B. Plaintiffe in Debt Se retraxit by attourney and by the judgement is not amerced he brings eror 1. Resolved a Retraxit ought to be in proper person for at the common Law every one who appeared ought to come in proper person and make his attorney after by license of the Court but if it be without writ he cannot without a writ of Attornato faciendo In cases where one may make an attourney but for contempt is bound to appeare in person if he appeare by attourney this is not error because the court may dispens with the contempt otherwise where he cannot appeare by Law by attorney as here for if he appeare by attourny this is error 2. B. ought to be amerced if upon a Nonsuite a Fortiori upon a Retraxit and although it is for his advantage yet he may assigne it for error because the judgement is not perfect and because it is for the advantage of the King and it shall not be amended because the act of the Court. 3. Where one disclaimes he shall not have a Writ of error because he hath confessed that he had no right otherwise it is upon a Retraxit for this is but a barre of the action à fortiori here where it wat void done by an attourney
taile with crosse remainders to J. and K. M. discontinueth and dyeth without issue J. dyeth without issue K. dyeth and her issue brings a Formedon in the remainder and good although severall remainders for they depend upon one estate and commence by gift at one time In actions reall in which title is expressed a man shall not have one Writ for Lands to which he had severall Titles as in escheate cessavit Writ of Mesne c. but he may have a Writ of ward of Land onely although it be by severall Tenures nor one formedon upon two distinct gifts where the foundation is severall but he shall have it if there be one gift although it take effect at severall times because the foundation was joynt and single as upon a gift in taile to Brother and Sister who dye without issue or if the Brother dye without issue and the Sister dye having issue who dyes without issue he to whom the remainder limitted shall have one formedon although it vest at severall times so in an estate taile to Father and Sonne and so here In actions reall founded upon Torte a man shall have one Writ to recover Lands to which he had severall Titles as in an assize a Writ of entry c. but in a Writ of entry upon disseisin made to my Mother and her Sister Coperceners because there title is in the Writ it appeareth he ought to have severall actions but in personall actions one may comprehend severall torts and causes of actions as trespasse for trespasse made at severall dayes and places wast upon severall Leases and so of Debt Nota if a remainder be executed issue in remainder shall not have a formedon in remainder but in the discender and Count of an immediate gift but if there be a Lease for life to one the remainder in taile to A. the remainder in taile to B. A. dyes without issue if B. be chased to his formedon he shall not count of an immediate remainder but shall shew the first remainder to A. and that he is dead without issue 2. In formedon in the remainder or reverter omission of issue inheritable in the pedigree of the demandant abates the Writ but not upon the part of the perticular Tenant 3. The Demandant must make mention of the Sonne who survived the Father to which Son the Land discended but was not seised by force of the taile but he shall name him Sonne but not heire 4. The Demandant in a formedon in the Discender must make himselfe heire to him that was last seised and he to the Donee Note here because K. was never seised the Writ shall say Remanere not descendere and the Writ was Remansit jus because a discontinuance otherwise it should be Tenementa remanserunt Fraunces Case 7. Jac. fo 89. THe Plaintiffe pleads in barre of avowry that R. F. devised to I. his Sonne who leased to him the avowant replyeth that after the devise R. F. made a Feoffement to the use of the said I. upon condition that he shall suffer his Executors to take away his goods and the estate limitted to him was for sixty yeares if he should so long live with diverse remainders over and that after the death of F. I. hindered the Executors to carry away the goods whereupon T. in remainder entered and judgement given for the Plaintiffe 1. Resolv Although the condition be taken strictly the uses to I. onely and to his Heires are onely avoided by it 2. A disturbance by paroll is no Breach of the condition and because the avowant did not shew a speciall disturbance his replication was void 3. I. ought to have notice of the condition being a Stranger to it or otherwise he cannot breake it as a Copy-holder shall not forfeite for denyall of rent to him to whose use a Mannor is transferred before notice but he who bindes himselfe to doe any thing must take notice at his perill because he hath taken it upon him 4. Although that the Title which the Plaintiffe had made in barre to the avowry be destroyed yet he shall have judgement because his count is good and another Title that is to have the Land for sixty yeares by force of the uses declared upon the feoffement is given unto him by the Replication although that the title which he made for himselfe be destroyed yet the Court must adjudge upon all the record and judgement was entered for him accordingly Edward Foxes Case 7. Jacobi fo 93. A Revertioner upon a Lease for life the remainder for life in consideration of 50. l. demiseth granteth c. his reversion for 99. yeares rendering rent this is a bargaine and sale and there needs no attornement for the words of bargaine and sale are not necessary if there are words which tantamount as if at the common Law one had sould his Land an use had beene raised to the Vendee because their intent so appeared so here but if it appeare that their intent was to passe it at the common Law as if a Letter of Attorney be made to make livery the use had not risen and here appeareth their intent to passe it as a bargaine and sale because rent is reserved presently therefore it is reason that he shall have the rents of the particular Tenants presently which cannot be if it passe not by bargaine and sale and inrollment is not necessary because a tearme for yeares onely passeth in this case and â—o freehold See Sir Rowland Heywards Case 2. Report fo 35. Matthew Mannings Case 7. Jacobi fo 94. LEssee for yeares is bound in 200. Markes to W. C. and deviseth to his Wife for life and after her death to M. M and makes his Wife Executrix who agrees and dyeth intestate M. M. enters and takes administration of the goods not administred W. C. brings Debt against him Resolved that M. M. takes by Executory devise and not as a remainder and the estate limmitted to him in construction precedeth the limittation to the Wife as if he had devised that if the Wife die within the terme that then M. M. shall have the residue and also devised it to his Wife for life 2. This case is most strong because a Chattell which may vest and revest at pleasure of the Devisor without mischiefe to the Praecipe 2. A devise of the Terme and Occupation thereof all one Viz. So many yeares as the Feme shall live the remainder to M. M. 4. After the Executrix had agreed the first devisee cannot barre the Executory devise 5. A man may devise an estate which he cannot convey by act executed as to his Executors untill his Debts shall be paid the remainder over they have a Chattell determinable upon payment of the Debts which cannot be at the common Law If a Sheriffe sell a Terme upon a Fieri facias and judgement is reversed the sale shall stand otherwise none will buy any thing upon Execution and judgement was given for the Plaintiffe and affirmed in Error
of Action he shall not have judgement a Count may be made good by barre and a barre by replication in matters of circumstance but not of substance See there seaven things observed by Cooke for the better direction of the President and Comminalty of the said Colledge hereafter The Case of the City of London 7. Jac. fol. 121. IT is a good custome within a Citty that a Forreinor within the said Citty shall not sell things by retaile and it is good also upon paine of 5. l. but it is not good by Charter therefore Citties which are incorporate within time of memory cannot have such priviledges without Parliament so of a custome that goods forreigne bought and forreigne sould shall be forfeited So one may prescribe to have a Bake-house in a Towne and that no other shall have one there and the Statutes which provide that every one may sell in retaile or in grosse extend onely to Merchands aliens and demisens who export and import things vendible Three inconveniences by confluence of people to London c. The Case of Thetford Schoole fol. 130. 8. Jac. LAnds of the yearely value of 35. l. in ao 9. El. was devised by the will of Thomas Fulmerston to certeine persons and their Heires for maintainance of a Preacher four dayes in the yeare of the Master and Usher of a free Grammar-Schoole and foure poore People Viz. Two men and two women and the Defendant delayed to accept a Release to defraud the Plaintiffe adjudged for the Plaintiffe 1. Although that two recoveries are without covin yet the composition so operates that nothing shall be accounted administred but onely so much as he hath paid by composition and the converting of any part to his owne use and the deferring to accept a Release is against the office of an Executor and shall not aide him 2. The barre is insufficient because he hath not shewed that the Court of C. had power to hold plea of debt 2. Because he hath not shewed that the Testator was bound in an Obligation and if it were onely upon contract the administrators were not chargable in Debt 3. Be the replication evill yet because the Barre is insufficient the Plaintiffe shall have judgement because he had not shewed any thing against himselfe but if it appeare by the replication that he had no cause of Action he shall be barred Mary Shipleys Case 8. Jac. fol. 134. AN action of Debt against an Executor of 200. l. the Defendant pleaded Plene administravit the Plaintiffe replies that the Executor had assets the Jury found assets to the value of 172. l. judgement was given to recover the whole Debt of 200. l. and damages and costs of the goods of the Testator S. c. Et si non then the damages of the proper goods of the Defendant Sir John Nedhams Case 8. Jacobi Communi Banco fol. 135. IN debt as administratrix upon administration committed by the Bishop of R. the Defendant pleads administration committed unto him by the Deane and Chapter of C. sede vacante because the Intestate had bona notabilia c. the Plaintiffe replyes that that administration was repealed adi for the Plaintiffe 1. Resol Because it is not shewed that the Intestate had bona notabilia c. it shall be intended that he had not and yet the administration is not voyde but voydable 2. Before the repeale of administration committed by the Metropolitan the inferior Ordinary may commit administration because this is by the repeale declared voyd ab initio and an administration is but an authority which may well commence in futuro 3. The committing of administration to the obligor hath not extinguished the bebt because it is in anothers right otherwise it is if the obligee himself make the Obligor his executor because this is his owne act De bonis defuncti trina dispositio 1. Necessitatis ut funeralia 2 Vtilitatis that every one shall be payd in due order 3. Voluntatis as Legacies Sir Francis Barringtons Case 8. Jacobi Communi Banco fol. 136. THe Lord R. granted wood within a Forrest in which the Plaintiffe had common which grant is confirmed by Statute the grantee cuts wood and inclose it the commoner shall loose his common for seven yeares 1. Resol The grantee had an inheritance to take in another soyle and the soyle is to the Lord R. 2. Although the grantee had not the inheritance yet the Statute extends to him and he may inclose for the Statute is or any other person to whom wood is sould 3. 22. E. 4. cap. 7. extends to wood which one had in severalty and not where another had common there for at the common Law one who had wood in a Forrest cannot incloser against a commoner but if it be his severall wood he might inclose parvo fossato c. for three yeares 4. The sayd Statute is as a conveyance betweene the King and his Subjects which taketh not away the right of third persons as the commoner here is 5. In the sayd Statute there is a clause that hee may inclose without suing to the King or other owner so that power is given against them and not against a commoner Beasts of Forrest are Hart Hinde Hare wilde Boare and Wolfe of chase Buck Doe Fox Martin and Roe 6. By the Statute of 35. H. 8. cap. 17. he is barred of his common which provideth that no Beasts shall be suffered to come there for seven yeares 7. The Statutes which concerne Forrests are generall because they concerne the King and the Court shall take notice of them Doctor Druries Case 8. Jacob. fol. 141. DOctor Drury recovers against B. who is outlawed and taken by Capias ut-legatum and escapeth the Utlary is reversed Doctor Drury sueth execution B. brings an Audita quaerela adjudged that it lyeth not It was resolved that if A. be in execution at the suit of B. upon an erroneous judgement and after escape and after the judgement is reversed by a Writ of error the action against the Sheriffe is extinct for hee may plead Nul tiel record But untill it be reversed it remaines in force be it never so erroneous and if the partie have judgement and execution upon the escape against the Sheriffe or Goaler and after the first judgement is reversed yet for as much as judgement upon this collaterall thing is executed it shall remaine in force notwithstanding the reversall of the first 7. H. 6. 4. Yet it seemeth to me he may have remedy by Audita quaerela for that the ground and cause of the collaterall action is disproved by the reversall of the first judgement a difference betweene meane acts compulsatory and voluntary and betweene a recovery by eigne title and reversall of a recovery Davenports Case 8. Jacobi fol 144. TEnant for yeares of an advowson granteth proximam advocationem donationem si eadem Ecclesia contingerit vacua fore durante termino c. And afterward surrenders his terme yet if
Indictment of the Trespasse and the party maketh the Obligation to another by the direction of the Sheriffe upon this condition as the Statute prescribes for the suerty of the Sheriffe c. and there it is holden that the Obligation is void because the Statute prescribes that the Obligation shall be made to the Sheriffe and that is part of the essentiall forme and so if the Sheriffe add to the condition that he shall be kept harmelesse against the King and the Plaintiffe c. this is void so if a Gaoler or a Sheriffe take an Obligation of the person with condition to be true Prisoner or to pay for his meat and drinke So if the Sheriffe add any other thing to the matter prescribed by the Statute as to pay such a Sum of money for a Horse c. This condition maketh all the Obligation void for it is taken in another forme touching the substance of the matter then is prescribed by the Statute but in Pasche 27. Eliz. in the Kings Bench in an Action of Debt brought by Sir William Drury late Sheriffe of Suffolke upon an Obligation of 20. l. against A. B. it appeared that the Defendant was solely bound in the same and with condition that one Moore who the Sheriffe had arrested upon a Latitat should appeare in person at the day contained in the Writ the Defendant pleaded the Statute 23. H. 6. and that the obligation was made in other forme then is mentioned in the Statute whereupon the Plaintiffe demurred in Law and it was Objected that there were 3. variances from the Statute Viz. one in the Obligation and two in the condition First in the Obligation for that there was but one surety and the Statute prescribes reasonable surety of sufficient persons in the Plurall number having sufficient within the said County c. in which case there ought to be two Sureties at the least and the Plurall number cannot be satisfied with the Singular number and so contrary to the words of the Statute And so was the Opinion of Mountegue Chiefe Justice of the common Place in the Case of Dive and Manningham Also in the condition that the Prisoner should appeare in person where the words of the Statute are that he should appeare generally without these words in person 2. That he should appeare at the day c. Ad respondendum where these words Ad respondendum are more then the Statute prescribes and therefore the Obligation is void c. but it was resolved by Sir Christopher Wray Sir Thomas Gaudy and all the Court that the Obligation was not void by the said Act. For to the first The words reasonable surety of sufficient persons are added for the surety of the Sheriffe and therefore if he will but take one surety be it at his perill for he shall be amerced if the Defendants appeare not and therefore the Statute doth not make void the Obligation in this Case for the same Branch that requires the forme requires also that the Obligation shall be made to the Sheriffe himselfe by the name of his Office and that the Prisoners should appeare in which clause no mention is made of the sureties so as the intent of the Act was that in so much as it was at the perill of the Sheriffe to leave to his discretion to take one or more for his indemnity and although the sureties have not sufficient within the same County as the Statute mentioneth yet the Obligation is good For these words of the Act as to this point are more for councell or direction of the Sheriffe then for precept or constraint to him and that for the safety of the Sheriffe for if the Defendant cannot find two sufficient persons having sufficient within the same County the Sheriffe is not bound to let him to Baile and this resolution agreeth with the ancient rule Quilibet potest reminutiare juri per se introducto And as concerning the second Additions to the condition of the said Obligation more then is in the Statute It was resolved that true it is there is a Verball difference of the forme prescribed by the Statute but not in the substance and effect for he that is so letten to Baile ought to appeare in person for so much is implyed in the words of the Act shall appeare and by the common Law every Tenant or Defendant ought to appeare in propper person and with this accordeth Fitz. Na. br 25. and he that ought to appeare ought to appeare Ad respondend parum differunt quae re concordant est ipsorum legistlatorum tanquam viva vox rebus non verbis legem imponere vide Dier 21. Eliz. 364. where the condition was in the conjunctive appeare and answer and yet the obligation good 27. Eliz. in Darby Hethcot if a Gaoler or Sheriffe for ease or inlargement of any Prisoner take promise to save him harmelesse that although the Statute speaketh onely of Obligations with condition yet it is an equall mischiefe And Wray Chiefe Justice said that the Statute should serve for small or nothing if the premises should not be taken to be within the Statute and the latter clause is generall Viz. If the Sheriffe take any Obligation in the other forme that it shall be void and within the equity of these words any Obligation an assumpsit is comprehended for the ancient Verses are Verba ligant homines taurorum cornua bones Cornu bos capitur voce ligatur homo Quando verba Statuti sunt specialia ratio autem generalis generaliter Statutum est intelligendum It was said that the Assumpsit did not bind the Prisoner at the common Law because the consideration was against the Law vide Dyer 19. Eliz. Oneleys Case Alfridus Denbawds Case 10. Jacobi fol. 102. In Error ONe Jury onely appeared at the Assizes to try an Issue in Trespasse a Tales de circumstantibus is awarded at the Prayer of the Plaintiffe the title of which was Nomina decem Talium and verdict and judgement was given against the Defendant who brings Error It was Objected 1. That the judgement was erroneous for the Title being Nomina 10. Talium the Sheriffe cannot returne 11. 2. Because the Statute speaketh with those persons that were before impannelled which cannot be satisfied where one onely appeareth as the Statute of Westm 2. c. 11. is not satisfied with one Auditor so of the Statute of Merton c 3. of Redisseisin It was resolved that the Tales was well awarded for the Statute shall be taken beneficially in favour of speedy Trialls and the title is the misprision of the Shetiffe which shall be amended The time of granting the Tales is when so many of the Jurors make default that the inquest cannot be taken if two of the principall pannell appeare and at the Prayer of the Plaintffe 12. de Circumstant are returned and then the two principalls are withdrawne now the triall shall be all by the 12. de circumstant but
4. In this Case by grant of the reversion generally or of the Tenements the Trees passe for the inheritance of all the Land passeth and thereby the Trees annexed to it the disseisee by his entry shall have the Corne upon the ground as well as the Grasse by relation of continuance of possession but this relation is not of effect to have a trespasse against any but the first disseisor for in fictione juris semper aequitas existit and the emblements shall be recovered in damages 5. In the Case at Barr by exception of the Trees power is reserved to the lessor or his servants to enter and show the Trees to the Vendee Cuicunque aliquis quid concedit concedere videtur id c. 6. The plea in Barr is insufficient for he showeth that there was another joyntenant for life not named in the Writ and demands Judgement if action which is an unapt conclusion 2. The Plea is double one to the Writ another to the Action 3. He pleads the entry of the lessees for life which is surplusage 4. Hee averreth not that the Trees which were sold were nor Dotards which are excluded out of the exception but that they de jure pertinebant to R. L. which is not formall but upon all the matter there appeared sufficient cause to give Judgement against the Plaintiffe and therefore by the rule of the Court Quaerens nil capiat per billam The Case of the Taylors of Cloaths c. of Ipswich 12. Jacobi fol. 53. THe Taylors of I. make an Ordinance that none shall exercise the Trade in I. if he have not been an Apprentice for seven yeares and if hee doe not appeare before them to be approved upon forfeiture of five Marks and for breach of it bring debt the Defendant pleads that he was reteined by A. P. to be a domestick Servant and that he made Garments by his command 1. Resol At the Common Law none may be prohibited to exercise any Trade although he hath never been an Apprentice and be ignorant but if he misdoe any thing an action of the Case lyeth 2. This Ordinance for so much as is not prohibited by the Statute of 5. Eliz. is against Law for after seven yeares Apprentiship he may exercise his Trade without allowance of any 3. The Statute of 5. Eliz. doth not prohibite the private exercise of any Trade in a Family therefore this is out of the said Ordinance 4. The Statute of 19. H. 7. cap. 7. doth not corroborate any Ordinance against Law if it be allowed but the allowance dischargeth the penalty of 40 l. for putting in use any ordinances which are against the Prerogative of the King or the common profit of the people and Judgement was given Quod querentes nil caperent per billam Edward Savells Case 12. Jacobi fol. 55. AN Ejectione firmae lyeth not of a Close but it must be of a certaine number of Acres and the nature of them must be shewed A Writ shall not abate for want of order Viz. Of a House before Land c. and judgement was stayed Benthams Case 12. Jacobi fol. 56. IF damages or costs are omitted or not well assessed by the Jury if the Plaintiffe release them he may have his judgement and it shall not for that be reversed Insufficient assessement of damages and no assessing is all one Doctor Fosters Case concerning Recusants 12. Jacobi fol. 56. AN Information was preferred against a Recusant by an Informer Tam pro domino rege quam pro seipso before the recusant was convicted for 220. l. that is 20. l. a Moneth for a 11. Moneths absence from the Church c. And judgement given against the Defendant 1. Resolved that he may be convicted to satisfie the Statute of 23. Eliz. in this same Suite and convicted shall be taken for attainted for he shall forfeit nothing before judgement 2. The Branch of distribution in the Act of 23. Eliz. extendeth as well to the clause of penalty for recusancy as to that of hearing or saying Masses for it is all one to say shall forfeite and shall forfeite to the King 2. Diverse acts of Parliament give the penalty to the King and yet after make a distribution thereof to another who will sue as 3. H. 6. cap. 3. 3. H. 7.3 3. He against whom judgement is given upon demurrer or default or otherwise is convicted within the Statute for he is attainted which implieth it for it is so found by the Judges so by the Statute of 8. H. 6. treble damages are given where a disseisin is found to be with force this extends to a judgement by Nihil dicit or default 4. The Statute of 28. Eliz. doth not take away the Statute of 23. which giveth liberty to the informer c. for 1. It is made for more speedy execution of it 2. It doth not alter the suite of the party but of the King and leaveth the Informer as he was before 3. The Act of 28. giveth not the penalty to any new person for it was given to the K. by 23. Eliz. 4. The Statute of 28. extends onely to Indictments and toucheth not informations 5. The Defendant is not within 28. Eliz. if he be not convicted at the suite of the K. Ergo this is left as before 6. Because the Statute is in the affirmative and they may stand together but the Statute of 28. alters the Statute of 23 in this that it confineth Suites against Recusants in the K. Bench or Assizes c. which clause extends as well to the suite of the informer as of the Queene and the Statute of 35. Eliz. and 3. Jacobi inlarge the Jurisdiction as to Suites of the K. and touch not the suite of the party 5. The Statute of 35. taketh not away the Action popular given by 23. for it was made to give more speedy remedy and not to take it away a feme Covert is within the Statute of 23. and 1. Eliz. but before the Statute 35. Eliz. if a Feme Covert had been indicted of recusancy the forfeiture should not have been levyed of the goods of the Husband because he was not party thereunto otherwise in an Information or Debt brought by the informer and in that that the Statute of 35. is that the K. shall recover all the paines c. in such sort c. this alters the remedy onely as to the Queene for now shee may proceede by action as for recovery of any other Debt by the Common Law in such manner as 1. H. 7. c. 1. giveth a Formedon against Parnor of the profits c. also 35. Eliz. is in the affirmative and although it giveth the penalty of 20. l. by the Moneth yet it taketh not away 1. Eliz. which giveth 12. d. for every Sonday and Holy day and where this Statute saith that the conviction shall be in the K. B. or at the Assizes yet the Justices of Peace and others authorized by 23. may take
land of M. was lost by the Statute of 4. and 5. P. and M. ca ' 8. Resolved that there were two manners of custodies or Gardianships the one by the common law the other by the Statute at common Law foure manner of Gardians viz Gardian in Chivalry Socage Nature by Nurture The first two are fully described in our Bookes but great controversie was at barre for Gardian by Nature Some held that the Father onely shall have the custody of his sonne and heire apparent within age not the Mother Grandfather c. Also that the Father shall not have the custody of his daughter and heire for it ought to be such an heire as shall continue sole and apparent heire as the Father shall not have the custody of the youngest sonne in Borough English for tenure in Chivalry Others affirme that not onely the Father but every auncestor male or female shall have the custody of his heire apparent male or female Trespas quare 〈◊〉 consanguinium haeredem of the plaintiffe cujus maritagium ad ipsum pertinet c. rapuit c. lyes The Mother though she had no land brought ravishment of ward of J. her Sonne and heire against the grandfather who had land that might descend By the Court both erre for 't is true that every auncestor shall have trespas or ravishment of ward against a stranger for his heire male or female and the Writ shall say Cujus maritagium ad ipsum pertinet and good reason for the establishment of his house consists upon providing of a convenient marriage for his heire apparant and it matters not of what age such heire is but such action lyes not against gardian in chivalry by any of his auncestors but the Father So the Court resolved here the Mother could not be gardian in Socage if the land had descended to the daughter nor by nurture because she was above 14. but the common Law gives remedy against a Stranger as aforesaid Resolved here the Mother shall have the custody within the provision of the Act which hath ordained two new manners of custodies 1. By reason of nature 2. By assignation the first the Father after his death the Mother the second by assignation of the Father by his will or any act in his life See the Booke at large for the exposition of this Statute Resolved that the assent of the husband was not materiall for the Statute hath annexed the custody to the person of the Mother jure naturae which is inseperable and by marriage cannot be transferred to the husband the Father shall not forfeit the wardship by outlawry nor shall his Executors have it Resolved though she departed out of the house sixe houres before the contract yet in judgement of Law the Mother had the custody at the time of the contract for 't is inseperably annexed to the person of the Mother Resolved that by this devise the two daughters wete tenants in common in taile by these words equally to be divided though they never make partition in facto and so it hath been often adjudged Resolved that the husband and wife damsell had good title upon this verdict against the other daughter for by these words to the next of kin to whom the inheritance should c. come after her decease during the life of such person who shall so contract c. it seemes the daughter shall not have the forfeiture for though she be of the blood yet if M. dye her issue shall have the land if without issue the Mother in the remainder To the objection that the Mother cannot have it for she is not of the blood of the daughter but econtra Father or Mother are not next to whom administration shall be granted and land shall escheate rather then it shall goe to Father or Mother Resolved often against 5. E. 6. that the Father or Mother are next to whom administration may be granted and Littleton says that the Father is neerer of blood then the Uncle and therefore the Father shall have a remainder limitted to the next of blood of the Sonne but he shall not have an inheritance by discent from the Sonne for a Maxime prohibits it And 't was said at barre if he in reversion had been brother of the halfe blood he might have entered as Proximus de sanguine yet none of the halfe blood could inherit See the Booke at large where is excellent learning of discents as also the learning of Possessio fratris c. Resolved by the Court that it doth not come in question who shall enter for the forfeiture by the Statute for the issue was joyned upon a collaterall point whether the Mother had the custody at the time of the contract and the finding of the Jury is not materiall and therefore though the Plaintiffe who was lessee of the husband of the damsell as appeared had good title against the defendant being lessee of the husband of the other Sister yet because the issue was found against him judgement was given Quod nihil capiat c. Boytons case 35. Eliz. in Banco regis fo 43. A Writ of cap ad satisfaciendum is retornable at Westminster die Lunae prox post Crastin Animarū the partie is arrested the Sheriffe is not bound to bring the prisoner in recta Linea from the place where he was arrested or from the Countie But if he have the prisoner in Court at the day of the returne being never out of his custody in the meane season it is good But if a Sheriffe or a Bayliffe assent that one who is in execution and under their custody to goe out of the Gaole for a time and then to returne yet although he returne at the time it is an escape And so it is likewise if a Sheriffe suffer him to goe with a Bayliffe or a Keeper for the Sheriffe ought to have him in arcta custodia the Statute of Westminster 2. cap. 11. says Quod carceri manucipentur in ferris So as the Sheriffe may keepe him in yron and fetters to the intent that they may sooner satisfie their Creditors The Sheriffe upon a Habeas corpus for one in execution may bring the partie what way he will so as he have his bodie at the day according to the Writ If one in execution escape out of the Gaole and fly into another Countie the Sheriffe upon fresh suite taketh him again before any action brought against the Sheriffe the Judges have adjudged this no escape and if one in execution escape de son tort and be taken againe he shall never have an audita querela because a man shall not take advantage of his own wrong Sir George Brownes case 36. of the Queene fo 50. ISsue in speciall taile the remainder to himselfe in fee in the life of his Mother tenant in speciall taile levies a Fine in truth with Proclamations though they were not found to Sir G. B. the Mother living the Sonne leased for three lives
the wrong but that the said Bill shall remaine alwayes of record to their infamy and here no murther or piracy can be punished upon any Bill exhibited in English but he ought to have beene indicted and therefore he hath not onely mistaken the Court but also the nature of exhibiting the Bill hath not appearance of any ordinary course of justice but no action lyes upon an appeale of murder returnable in the Common Bench for though the Writ is not returned before competent Judges who may doe justice yet 't is in nature of a lawfull Suite namely by Writ of appeale wherefore judgement was given for the Plaintiffe And in a Writ of error in the Chequer Chamber brought by Wood 't was resolved that Sir R. B. might have had a good action but here because the action was not upon the Bill exhibited at Westminster but because he said in the County of S. that his Bill was true In auditu quamplurimorum without expressing the said matters in particular so that it was not any Slaunder judgement was reversed Stanhopp and Bliths Case 27. of the Queene fo 15. MAster Stanhopp who was a surveyor of the Dutchy and had divers Offices and was a justice of peace Hath but one Mannor and that he hath gotten by swearing and forswearing Resolved that the action doth not lye for they are too generall and words which charge any one in an action in which damages shall be recovered ought to have convenient certainty and he doth not charge the Plaintiffe with swearing c. and he may recover a Mannor by swearing c. yet not procuring or assenting to it Resolved if one charge another that he hath forsworne himselfe no action lyes First because he may be forsworne in usuall communication Quia benignior sensus in verbis generalibus seu dubijs est praeferenda Secondly it is an usuall word of passion and choller as also to call another a Villaine a Rogue or Varlet these and such like will not mayntaine Action Boni judicis interest lites derimere But if one say to another that he is perjured or that he hath forsworne himselfe in such a Court c. For these words an Action will lye Hext Justice of Peace against Yeomans 27. of the Queene fo 15. FOr my ground in H. Hext seekes my life and if I could finde one J. H. I doe not doubt but within two dayes to arrest Hext for suspicion of felony Adjudged that no action lyes for the first words 1. Because he may seeke his life lawfully upon just cause and his land may be holden of him 2. 'T is too generall and the Law inflicts no punishment for seeking of his life but adjudged that the action lyes for the last words for for suspicion of felony he shall be imprisoned and his life in question Birchleys case 27. 28. of the Queene fo 16. THe Defendant said to B. Clerke of the Kings Bench and sworne to deale duely without corruption you are well knowne to be a corrupt man and to deale corruptly Adjudged that the action lyes 1. Because the words Ex causa dicendi imply that he hath dealt corruptly in his profession Et sermo relatus ad personam intelligi debet de conditione personae 1. This touches the Plaintiffe in his oath 2. The words Scandalize him in the duty of his profession by which he gets his living Skinner of London said that Manwood was a corrupt Judge adjudged actionable Resolved in this case that if the precedent parlance had beene that B. was a usurer or executor of another and would not performe the will and upon this the Defendant had spoken the words following no action would lye Weaver and Caridens case 37. of the Queene fo 16. AAjudged that no action lyes for saying that the Plaintiffe was detected for perjury in the Starre-chamber for an honest man may be detected but not convicted Stuckley and Bulheads case 44. and 45. of the Queene fo 16. ADjudged that an action lyes for saying Master St. he was a Justice of peace covereth and hideth felonies and is not worthy to be a Justice of peace for this is against his oath and his office and a good cause to put him out of Commission and for that he may be indicted and fined Snagg and Gees case 39. of the Queene fo 16. THou hast killed my wife and art a traytor Adjudged that the action will not lye for the wife was in life as appeared in the Declaration and so the words vaine and no scandall otherwise if shee had beene dead Eaton and Allens case 40. of the Queene fo 16. HE is a brabler and a quarreller for he gave his Champion counsell to make a Deed of gift of his goods to kill me and then to fly out of the Country but God preserved me Resolved that the action will not lye for the purpose without act is not punishable and though he may be punished for such conspiracy in the Star-chamber yet this is by the absolute power of the Court not by ordinary course of Law Observe well this case and the cause and reason of this Judgement Anne Davies case 35. of the Queene fo 16. THe Defendant said to B. a Suitor to the Plaintiffe and with whom there was neare an agreement of marriage I know Davies daughter well she did dwell in Cheapside and a Grocer did get her with childe and the Plaintiffe declared that by reason thereof the said B. refused to take her to wife Resolved the action lyes for a woman is punishable for a Bastard by 18. of the Queene ca. 3. And though that fornication c. is not examinable by our Law because done in secret and uncomely openly to be examined yet the having a Bastard is apparant and examinable by the said Act. Resolved if the Plaintiffe had been charged with nude incontinency onely the action lyes for the ground of the action is temporall viz. the defeating of her advancement in marriage By Popham an action lyes for saying that a woman Inholder had a great infectious disease by which shee loses her guests Banister and Banisters case 25. of the Queene Resolved that an action lyes for saying to the sonne and heire that he was a Bastard for this tends to his disinherison but resolved if the Defendant pretend that the Plaintiffe is a Bastard and he himselfe right heire no action lyes and this the Defendant may shew by way of barre Jeames case 41. 42. of the Queene fo 17. THe Defendant said to B. Hang him innuendo praedict J he is full of the pox innuendo the French pox c. Resolved two things are requisite to have an action for slander 1. That the person scandalized be certaine 2. That the scandall be apparent by the words themselves And therefore if a man says that one of the servants of B. is a notorious felon or traytor an action lyes not if he have more servants and innuendo cannot make it certain
is insufficient for 't is incertaine whether it be in the necke arme or belly and Indictments ought to be certaine and shew in what part the wound is and the profundity and latitude that it may appeare to the Court to be mortall and one of the wounds incertainly alledged makes the whole Indictment insufficient 'T was said that the indictment ought to have been that if the party had 〈◊〉 dyed of the first stroke that he dyed of the other and this is the common course Upon a suddaine affray if the Constable or any of his assistants in suppressing it be killed 't is murder in Law though the murderer knew not the party killed for the Law adjudges it murder and that he had malice prepense for that he opposed him against justice So in case of a Sheriffe or any of his Bayliffs or Officers in execution of processe so of a Watchman Walkers case 41. of the Queene fo 41. REsolved that an indictment of murder upon which the party was outlawed that he stroke the dead in sinistra parte ventris circa umbelicum was good for sinistra parte was sufficient and the other superfluous but in Youngs before there was no certainty before the circiter Heydens case 28. of the Queene fo 41. EXceptions to the indictment 1. Because 't was taken before B. Coronatore in Com' praed ' and doth not say de com' praed Resolved it shall be so taken by reasonable intendment and the Writ de coronatore eligendo is quia A. B. nuper unus Coronator ' in Com' tuo diem clausit c. and so 't is taken in Willoughbyes case in Plodon 2 because he doth not say that E. S. dead fuit in pace Dei dominae reginae Resolved that they are only words of forme to amplifie the hainousnesse of the offence not of substance and perchance he was not in peace 3. Because he doth not say felonicè nor ex malitia sua praecogita dedit c. Resolved that the word et couples the sentences together so that these words felonicè ex malitia c. and tunc ibidem makes it cleare 4. The profundity of the wound is not shewne Resolved it cannot be here for all the panne of the knee was cut off 5. 'T is said tempore feloniae praed ' murdredi where it should be murdri Resolved the first words were sufficient and then murdredum being a word insensible is superfluous and shall not hurt 6. The wound was the fourth of August the death the nineteenth of December and the indictment is that T M c. tempore feloniae murdredi praed ' viz. 4. Augusti felonicè fuer ' praesentes c. auxiliantes c. 'T was objected that the death hath relation to the stroke Resolved that indictments have been often adjudged insufficient when the stroke is one day the death another and the Jury conclude the death to be done the first day But here it ought to have been that they were praesentes auxiliantes c. ad feloniam murd ' praed ' and relation which is a fiction shall make no man a felon And Wray said that without question the yeare of bringing the appeale shall be accounted from the death not from the stroke Hume against Ogle 32. 33. of the Queene fo 42. ADjudged that the count that the defendant gave the stroke the 27. of September at D. in the County of N. and that her husband of the same stroke at D. c. dyed and so the said defendant murdered him at D. aforesaid 't was repugnant and insufficient for as it cannot be said that he murdered him the first day as Heydons case is before so neither at the place where the stroke was but where he dyed Hudson and Lees case 31. of the Queene fo 43. IN an appeale H. counted that the defendant c. felonicè maimed him in his left hand the defendant pleaded that before c the plaintiffe recovered in Trespas for the same battery and wounding 200. l. and satisfaction acknowledged Resolved 〈◊〉 the barre is good for where the plaintiffe is to recover damage onely as in this case of the appeale 〈◊〉 shall not be twice satisfied for the same thing nem◠debet bis puniri pro uno delicto And here the wounding in the first action includes the mayhem more and the defendant hath averred that the wounding in the first action and the mayhem here is one Syers case 32. of the Queene fo 43. REsolved if the principall be pardoned or hath his Clergy the accessory cannot be arraigned for 't is a Maxime Vbi factum nullum ibi fortia nulla ubi non est principalis non potest esse accessorius and none can be principall before it be so adjudged by Law viz. by judgement upon verdict or confession or by Outlawry and it suffises not that in truth he be principall and the acceptance of pardon or prayer of Clergy is an argument but no judgement in Law that he is guilty But if the principall after attainder be pardoned or hath his Clergy the accessory shall be arraigned for it appeares judicially that there was a principall Bibithes case 39. of the Queene fo 43. REsolved that where the principall was found guilty of man-slaughter and not guilty of murder and had his Clergy the accessory shall be discharged for till judgement it doth not appeare judicially that there was a principall So if the principall upon his arraignment confesses the felony before judgement obteines pardon or hath Clergy Resolved that there cannot be an accessory before the fact in man-slaughter for 't is upon a suddaine affray and if premeditated 't is murder Vauxes case 33. of the Queene fo 44. REsolved that where a man was indicted for poysoning another perswading him that the potion mixt with Cantharides would cause him to have issue by his wife the indictment nesciens praed ' potum cum veneno fore mixtum sed fidem adhibens praed ' persuasioni dict' W. V. recepit bibit was insufficient for 't is not expressed that he received the poyson for venenum praed ' wants and the words after immediatè post receptionem veneni praed ' are not sufficient to maintaine an indictment which ought to be certaine and not by implication Resolved that Vaux who perswaded was a principall murderer though he was not present at the receit of the poyson and here he cannot be accessory for there is no principall and if any one had procured V. to doe it he had been accessory before which note a speciall case where principall and accessory both are absent at the time of the felony Resolved that auter foits acquite here is no plea for he was discharged upon an arraignement upon this insufficient indictment and the former acquittall or conviction ought to be lawfull and the Maxime is That the life of a man shall not be twice in jeopardy for one
offence but here his life was not in jeopardy So if a man be convicted by verdict or confession upon an insufficient indictment and no judgement given he may be againe indicted and arraigned for the law wants its end but if upon such insufficient indictment the felon hath judgement quod suspendatur per collum and so attainted which is the end of the Law he cannot be indicted againe c. till this judgement be reversed and upon such acquittall no conspiracy lyes Wrote and Wigges case 33. 34 of the Queene fo 45. THe defendant in an appeale of murder pleads that auter foits by inquisition taken before the Coronor of the Queenes houshold and B. one of the Coronors of M. he was indicted of Manslaughter which inquisition was certified to N. at the Goale delivery and the defendant upon this was arraigned confessed the felony and had his Clergy and it appeares the arraignement c. was after the purchase of the Writ of appeale and before the retourne Resolved that auter foits convict of man-slaughter and Clergy is a good barre in an appeale of murder as 't was adjudged in Holcrofts case In which it was likewise resolved that an inquisition taken before B. Coronor of the houshold c. and one of the Coronors of M. is well taken and within the Statute of articuli super chartas though the Statute requires two persons for the intent of the Act was performed and the mischiefe recited avoyded for though the Court removes yet he may proceed as Coronor of the County Resolved also upon the Statute of 3. H 7. ca ' 1. that this case was out of the Statute for if the defendant had his Clergy the appeale lyes not a fortiori when he is convicted onely and prayes his Clergy and the Act of the Court to be advised as to the allowance of Clergy so the case was shall not prejudice the party in case of life And 't was resolved that attaint of murder in the Act extends to a person convicted by confession or verdict as to a person attaint for he which is attainted is convicted and more And Agnes Gainsfords case adjudged that where 3. H. 7. is That the wife or heire of him so slaine shall have appeale that the heire of a woman c. shall have it against him who was acquitted of the same murder So resolved here an indictment and conviction or acquittance of manslaughter is a barre to an indictment of the same death for all is the same felony though the circumstance alter it Resolved that at common law the Coronor of the houshold had an exempt jurisdiction within the Verge and the Coronor of the County could not meddle as appeares by Articuli super Chartas and Swifts case adjudged where a Coronor of the County tooke an inquisition within the Verge 't was avoyded by plea the one cannot meddle within the power of the other But Justices of the Kings Bench of oyer and terminer c. may inquire heare and determine all murders c. within the Verge for their authority is generall through all the County so resolved in Holcrofts case Resolved that the indictment was insufficient for it doth not appeare that D where the stroke and death was was within the Verge and though in truth it were within yet it ought to be found by the oath of the indictors and cannot be supplied by nude averrement and it shall not be voyd coram non judice as to the Coronor of the houshold and good before the Coronor of the County for the Record is intire and taken intirely before them c. And the defendant in his plea hath averred that D. was within the Verge so the Coronor of the County could not take the indictment onely Resolved for that the indictment upon which he was convicted was insufficient that he may be newly indicted c. for his life never was in jeopardy Resolved that where the stroke was one day the death another the conclusion ought to be that he was murdered the day of his death otherwise 't is nought for 't was not murder before and 't was resolved that the finding of the stroke and the death were not sufficient of it selfe without conclusion and so T. W murdered the said R. W. Resolved that though the conviction were pending the appeale yet if it had been lawfull and before that the defendant was compelled to plead it had been a good barre Waits case 45. of the Queene fo 47. REsolved that where a woman brought seaven severall appeales against severall persons as principalls all ought to abate but the first for all the principalls and the accessories before the murder and after and before the Writ purchased against whom the plaintiffe will bring an appeale ought to be named in the Writ for if all make default except one yet the plaintiffe ought to count against all therefore he ought to bring the appeale against all And the defendant shall not have damages by the Statute of W. 2. for it is out of it because the Writ abated And the Statute of Magna Charta says appellum in the singular number Hill ' 30. of the Queene fo 48. AN indictment upon 8. H. 6. was quashed Quia fuit inquisitio capta ad sessionem pacis in Com' S. tent ' die Martis die Mercurij though the sessions may indure two or three dayes yet the Record ought to mention that they were holden at a day certaine as also for that the Statute was misrecited in a point materiall Note because misrecitall is fatall the sure way is to draw the indictment with conclusion contra formam statuti and with no recitall of the Act. Ognels case 29. of the Queene fo 48. AN Executor possessed of a grange consisting of divers parcels demises all the grange except H. to A. for 23. yeares and H. to F. for 23. yeares and grants all the residue of his terme in the intire grange to A. F. B. the revertion or grants a rent charge in fee out of all his lands c. called C. grange quondam in tenura B. the testator and now in tenura occupatione de A. The rent is areare the intire terme expires the reversionor makes a Feoffement the grantee dyes the Feoffee leases at will the Executors distraine for arrearages Resolved that at common law in some case debt lyes for arrearages of an Annuity in fee though it continues as if a Parson or Prebend resigne or dyes because the Parson is chargeable otherwise of a rent service charge or secke when the Freehold continues and for a rent there is a diversity when a rent in fee is extinct by the act of the party and when of the Law and when particular estates expire see the booke at large But 't was resolved in the case at barre that the arrerages due in the life of the grantee were lost at common Law Resolved that H. was not charged with the
Parliament in the upper House that Leases made to the Queene by Colledges Deans and Chapters or any other having spirituall or Ecclesiasticall Livings against the provision of the Act 13. Eliz. ca ' 10. are restrained by the same Act as well as Leases made to common persons for they are disabled by Parliament to make estates the King being the head of the Common-wealth may not be an Instrument to defeate the provision of an Act of Parliament made Pro bono publico For though the Queene by the common Law had ability to take it yet insomuch the Parliament had dissabled them to make states estates made to the Queene against the Act are voyd Covenants c. Concerning Leases Assurances c. Spencers Case 25. Eliz. fo 16. Banco Regis A Lessee doth Covenant for himselfe his Executors and Administrators with the Lessor that he his Executors or Assignes shall build a Brick Wall upon parcell of the Land demised c. afterwards the Lessee assignes over his tearme to B. in this Case B. is not bound to build the Wall When the Covenant extends to a thing In esse parcell of the demise then the thing to be done by force of the Covenant is Quodammodo annexed and appurtenant to the thing demised and shall run with the Land and binde the Assignee although he be not bound by expresse Covenant But when the Covenant extends to a thing which had not essence at the time of the demise made that cannot be appurtenant or annexed to a thing which had not essence As if a Lessee Covenant to repaire the housses to him demised during the tearme this is parcel of the contract c. and shall bind the Assignee although he be not bound expresly by the Covenant But in this Case the Covenant concernes a thing which had not essence at the time of the demise but to be made after and therefore it shall binde the Covenantor his Executors and administrators and not the assignee for the Law will not annexe the Covenant to a thing which had not essence It was resolved in this Case if the Lessee had Covenanted for him and his assignes c. that in as much as it was to be builded upon the thing demised it should binde the assignee by expresse words Also if a warranty be to one his Heires and assignes by expresse words the assignee shall take benefite thereof and have a Warrantia cartae But although the Covenant be for him and his Assignes yet if the thing to be done be meerly collaterall to the Land demised and doe not concerne the same the Assignee shall not be charged as if the Lessee Covenant for him and his Assignes to build a house upon the Land of the Lessor which is not parcell of the demise or to pay any collaterall Summe of money to the Lessor or to a stranger this shall not binde the Assignee Also in a case of goods as Sheepe Chattell c. there is not any privity or reversion in the Assignee but meerely a thing in action in the personalty which cannot binde any but the Covenantor his Executors or administrators which doe represent him The same Law is if a man demise Lands for yeares with a stock of Cattle or Summe of money rendring rent and the Lessee Covenants for him his Executors Administrators and Assignes to deliver the Stock of Cattle or the Summe of money at the end of the Terme yet the Assignee shall not be charged with the Covenant This word Concessi or Demisi imports a Covenant and if an Assignee of a Lessee be evicted he may have a Writ of Covenant so shall Tenant by Statute or Elegit of a Terme or he to whom the Lease is sould by force of any Execution c. If a man grant to a Lessee for yeares that he shall have so many estovers as shall serve to repaire his House or that he shall burne within his House or such like during the Tearme that is appurtenant to the Land and shall run with the same as a thing appurtenant in whose hands soever the same commeth Assignee of an Assignee Executors of an Assignee ASSIGNES of Executors or Administrators of every Assignee may have Action of Covenant for all are comprised within this word Assignees for the same right that was in the Testator or intestate shall goe to the Executors or administrators It was resolved That the Act of 32. H. 8. c. 24. extendeth onely to Covenants which touch the thing demised and not to collaterall Covenants Slingsbyes Case 29. Eliz. fo 18. Vpon error in the Exchequer Chamber IF any party Covenantor in a Tripertite Indenture breake Covenant all the rest of the parties Covenantees are to maintaine the Action notwithstanding the words of the Covenant are Et ad cum quolibet eoâ—um But if a man demise to A black Acre to B. white acre to C. greene Acre and Covenant with them and every of them in this Case in respect of the severall interest by these words And every of them the Covenant is made severall but if the demise be made to them joyntly then these words in the Covenant And every of them are made voyd A man cannot binde himselfe to three and to every of them to make that joynt or severall at the Election of severall persons for one selfe same cause for the Court will be in doubt for which of them to give judgement It was resolved that an interest cannot be granted joyntly and severally as if a man grant Prox imam advocationem or make a Lease for Terme of yeares of Land to two joyntly and severally these words severally are voyd and they are joyntenants but a power and authority may be joyntly and severally as to make livery or to sell for they have no interest or Action but are as servants to others And judgement was reversed Rosewells Case 35. Eliz. fo 19. BArgainor of Land covenanteth to make to the Bargainee such assurance as his Councell shall advise the Bargainee himselfe cannot devise it although he be Learned in the Law for then it would be no good plea to say Quod consilium non dedit advisamentum Higginbottoms Case 35. Eliz. Banco regis fo 19. A Parson assumeth to I. S. to make him such an estate in a Rectory as the Counsell of the said I. S. shall devise the Counsell shall be given to I. S. and he shall notifie it to the Parson Stiles Case 38. Eliz. Banco regis fo 20. A Charter with the words Haec indentura without a manuall Act of indenting of the paper or parchment is not an Indenture Sir Anthony Maynes Case 38. Eliz. fo 20. Error in Banco regis SIr A. M. Leaseth to S. for twenty one yeares and bindeth himselfe to make a new Lease unto him upon surrender of the old and Leaseth to another for 80. yeares by fine Scott the first Lessee bringeth debt and had judgement If you be bound to enfeoffee one in the Mannor of D. before
fine after delivery of the Indentures of the fine the fine is said to be ingrossed 3. The Conusor shall not assigne error in the render because it is to his advantage and none shall assigne Error except it be to his disadvantage Dormers Case 35. Eliz. Banco regis fo 40. A Common recovery is had in a Writ of Entry in the Post de uno annuali redditu sive pensione quatuor marcarum and of an advowson whereupon a Writ of Error is brought 1. Because every Praecipe ought to be certaine but here it is in the Disjunctive 2. A Writ of entry in the Post lyeth not of an advowson But judgement was affirmed and thereby 't was resolved 1. That a common recovery is not like to other recoveries for it may be averred to an use 2. It is by mutuall consent consensus tollit errorem 3. A Writ of entry in the Post lyeth of an advowson common c. to suffer a common recovery and not otherwise for no other assurance can be had to barre the remainders 2. The demand of the rent is good for one of two things is not demanded but one thing by two names for rent and pension are Synonima and the rather here because it is said to issue out of Land which a Pension properly cannot 3. Common recoveries are so usuall that the Court shall take notice that they are common recoveries Rowlands Case 35. Eliz. Banco regis fo 41. A Pannell of a Jury is annexed to the Venire facias without returne this is vicious and not remedied by 18. Eliz. cap. 14. for that remedieth insufficient returnes but not where no returne The Countesse of Rutlands Case 36. Eliz. fo 42. RObert Moore is returned upon the Venire facias but in the panell before the Justices of Nisi prius and in the Postea he was named Robert Mawre if it appeare that Moore is his right name and that it is he who was sworne it is good for by the common Law this was a discontinuance against all the Jurors and discontinuances are ayded by the Statute otherwise if he were misnamed in the Venire facias and had his right name in the Panell and Postea Codwells Case 36. Eliz. Banco regis fo 42. A Juror who gave verdict was misnam'd in the Venire facias and had his right name in the Distringas and Postea and for that the judgement was arrested Nicholls Case 38. Eliz. Banco regis fo 43. C. Brings Debt upon a single Bill against N. who pleaded Payment without Acquittance which was found for the Plaintiffe although issue was joyned upon a point not materiall yet after Verdict this is aided by 32. H. 8. and 18. Eliz. Bohuns Case 39. Eliz. fo 43. A Fine was levyed of a Mannor and other Lands to the value of twenty Marks per annum so that the Kings silver is 40 s which was paid but in entering of it upon the Writ of Covenant the Mannor was omitted and thereupon error was brought but after that the transcript of the fine was remov'd into the Kings Bench the Judges of the common place amended the Record because it appeares to them that the Kings silver was payd for the Mannor and where the Writ of Covenant was Dede meipso for Teste meipso they amended that also and certified it into the Kings Bench upon dimunution and allowed Freemans Case fo 45. 41. Eliz. Banco regis IN an original Writ c. Quod nullus faciat vastum venditionem et destrictionem where it should be destructionem the fault was onely in one Letter the Court resolved upon good Consideration that it was matter of substance for Destrictio is a Latine word and altereth the sence of the Statute and matter of Substance in an Originall Writ is not remedied but matter of forme onely Vide Statute 32. H. 8. ca. 30. 18. Eliz. ca. 14. If an Originall at this day want forme or containe false Latine or vary from the Register in matter of forme after Verdict no judgement shall be stayed or reversed But if it want substance although it be the misprision of the Clerke this is not remedied by any Statute Gages Case 41. Eliz. Banco regis fo 45. A Writ of Covenant to levy a fine boare Date after the returne this is amendable because a common assurance but in other actions no amendment c. Cookes Case 41. Eliz. com banco fo 46. A Common recovery of the Mannor of Isfeild by the name of Iffeld is amendable because it appeared to the Court by collaterall things shewed unto them that Isfield was intended to passe Cases of Pardons Francklyns Case 36. Eliz. fo 46. In the Starr-Chamber A Bill was exhibited for a Ryot in the Starre-Chamber five yeares before the generall Pardon 35. Eliz. and it was resolved that the Kings fine was excepted but not the corporall Punishment but if it were exhibited within foure yeares all shall be accepted In this Case the Kings attourney may proceede for the fine Guilbert Littletons Case 39. Eliz. fo 47. Starre-Chamber A Bill exhibited in the Starre-Chamber before the Parliament 35. Eliz. and returned after this is excepted out of the generall pardon for it was depending before the returne but if an Originall Writ issueth out of the Chancery returnable in the common place this is not depending before the returne because out of another Court but after the returne it shall be said depending by relation from the day of the Teste and if the Tenant alien before the returne and after the Teste this shall be said an alienation pending the Writ Drywoods Case 42. Eliz. Starre Chamber fo 48. A Bill in the Starre-Chamber more then foure yeares and within 8. yeares before the Parliament in 39. Eliz. the Plaintiffe dyeth before the generall pardon this is pardoned for this doth not depend now and the words remaining to be prosecuted shall be intended for the party and not for the Kings Atturney Vaughans Case 40. Eliz. Banco regis fo 49. A Writ of entry in the Quibus depends in Wales before the generall Pardon and after the Demandant had judgement but the Tenant was not amerced 1. Resolved the Amercement is pardoned because the Torte was pardoned which together with the delay was the ground thereof 2. The Statutes of Jeofailes extend to Wales because it is made parcell of England by the Act of 27. H. 8. Wyrrells Case 41. Eliz. In the Exchequer fo 49. THe Queene brings debt upon an Obligation made by the Defendant to one who was Outlawed the Defendant pleads the generall Pardon and although that Debts due to the Queene are excepted yet Debts Originally due to the Subject and after came to the Queene are not excepted also the genetall pardon is to be taken beneficially for the subject and most strong against the King Biggens case 41. Eliz. Banco regis fo 50. THe King may pardon burning in the hand where the Defendant is found guilty of Man-slaughter and hath his
in the remainder enters J. S. takes the Corne he in remainder brings Trespas The right of the Corne is not in the plaintiffe or defendant but in the lessee for yeares of lessee for life but the lessee of the disseisor had right against the plaintiffe by reason of the possession and for that if he had pleaded that he had entred to take the Corne this had been good but because he pleaded Non culp the plaintiffe had judgement for the Entry and was barred for the residue Penrins case 38. Eliz. Banco Regis fol. 85. W. P. Brings a Quod ei deforceat in nature of a Writt of Right in Wales and after the mise joyned is nonsute Judgement finall is given he brings the like Writt and the first Judgement is pleaded in barre the demandant demurres and adjudged against him and he brings Error 1. Although by the Statute of 12. E. 1. Triall of right in Wales shall be by Common Jury yet Judgement finall shall be given 2. Erroneous Judgement finall in right shall binde untill it be reversed 3. Judgement finall shall not be given upon default of the Tenant in a Writt of right but a Petit Cape shall issue for peradventure he may save his default Cases of Executions Blumfeilds Case in banco le roy 39. Eliz. fo 86. TWo men were bound joyntly and severally in an Obligation the one was sued condemned and taken in Execution and after the other was sued condemned and taken in Execution and after the first escaped and the other brought an Audita quaerela and although the Plaintiffe might have his Action against the Sheriffe upon the escape yet untill he be satisfied indeed the other cannot have his Audita quaerela for if the Defendant be sued by one Writ or severall Proces although the entry be Quod unica fiat executio This is to be understood of one Execution with satisfaction for he may have three bodies in Execution In communi banco inter Lynacre Rodes Case Hill 33. Eliz. It was adjudged that notwithstanding the Conusor in a Statute Staple was taken and escaped yet his goods and Lands upon the same Statute may be extended for the Escape and the Action which the Plaintiffe might have against the Sheriffe is not a satisfaction of the Debt And if so the Conusor be taken and dye in Execution the Conusee shall have Execution of his goods and Lands And it was adjudged 24. Eliz. in t Joanes Williams that where two men were condemned in a Debt and the one taken and dyed in Execution yet the taking of the other was lawfull and then it was resolved Per. tot Cur. that if a Defendant dye in Execution yet the Plaintiffe may have a new Execution by Elegit or Fieri facias c. The Execution of the body is an Execution but not a satisfaction as appeareth in 4. H. 7. 8. and 33. H. 6. 47. in Hillaryes Case adjudged but a gage for the Debt for the words of the Writ are Capias I. S. Ita quod habeas corpus ejus coram Justic nostris c. ad satisfaciendum G. L. de debito damnis c. and so his body is taken to the intent he should satisfie and when the Defendant hath paid the money he shall be discharged out of Prison Garnons Case 40. Eliz. fo 88. LAyton recovered against Wallwyn in an Action of Debt and Outlawed the Defendant after judgement and sued a Cap. Vtlag and delivered the same to Garnon the Sheriffe who did take the Party and before the returne of the Writ the Defendant escaped and thus it was resolved that if one at the common Law have judgement in an Action of Debt and after judgement Outlaw the Defendant then the Plaintiffe is at the end of the Suite for any processe to be sued in his name Yet if the Defendant be taken by Vtlary at the Suite of the King no Laches being in the Plaintiffe in continuance of his Processe he shall be in Execution for the Plaintiffe if he will for reason requireth that if the King shall have benefite by the Suite of the party So the Plaintiffe shall have benefite by the Suite of the King if judgement in error be affirmed within the yeare a Capias or Fieri facias lyeth without any Scire facias although in another Court Frosts Case In communi banco 41. Eliz. fo 89. FRost recovered Debt and damages against B. who was Outlawed after judgement and a Cap. Vtlagatum delivered to the Sheriffe of London Laborne a Serjeant arrested the said B. in Fleete-streete Ad respondendum A. Laborne kept B. in his House and then Frost came to Laborne with the Sheriffes Warrant to Arrest B. upon the said Cap. Vtlagat the which to doe Laborne refused and afterwards the Sheriffe suffered the said B. to goe at large and upon this matter Frost brought his Action upon the case against the Sheriffe and supposed that the Sheriffe did arrest the said B. by vertue of the said Cap. Vtlagat and that he suffered him to goe at large and the Defendant pleaded Non permisit eum ire ad largum The Jury found all the said speciall matter and judgement was given for the Plaintiffe For first it was resolved That when a man is in custody of the Sheriffe by Processe of the Law and after another Writ is delivered unto him to apprehend the body of him who is in his custody immediately he is in his custody by force of the second writ by judgement of Law although he make no actuall arrest of him for to what purpose should he arrest the party that is already in his custody Et lex non precipit inutilia quia inutilis labor stultus the words of the writ are not onely Capias c. but also Salvo custodias c. Ita quod habeas corpus coram c. and so he ought safely to keepe him Vide 7. H. 4. 30. And the Defendant ought not to be discharged untill he had found surety to satisfie the Plaintiffe by 5. E. 3. cap. 12. Hoes Case 42. Eliz. fo 89. In the Exchequer EXecution of a writ of Execution as well at the Suite of a common person as at the Kings suite is good without returne of the writ for if a man be arrested upon a Cap. ad satisfaciendum the Execution is good although the Sheriffe doe not returne the writ and so in all writs of Execution where the Sheriffe doth onely execute the same as Cap ad satisfaciendum habere fac seisinam vel possessionem Fieri Facias Liberat. If the Execution be duely made it is good but if Cap. in Processe be not returned the Arrest is not lawfull for there the intent of the writ is to bring the party to answer the Plaintiffe and in case of an Elegit for there the extent is to be made by Inquest and not by the Sheriffe onely and the writ ought to be returned otherwise it is of none effect In this case
disseissed at the common ley and dyed and the Feme before entry dyed this is a discontinuance to the Sonne because he cannot enter as Heire to both but if the Feme enter the discontinuance is purged 2. The estate which the Feme had jointly with her Baron is within the purviewe of the Statute of 32. H. 8. c. 28. That no fine levyed by the Baron sole of Lands of the Feme shall hurt her and within the Statute of West 2. c. 3. 3. The entry of the Sonne is lawfull although he claimes not as heire to the Feme as the Statute speakes but as heire to both because he is within these words or to such as have right by the death of such Wife and this is to be intended of discontinuances made by the Baron and not of a rightfull barre of the issue for they cannot avoide it and the Statute is that they may enter which they cannot doe where they are barred and if the Feme enter within 5. yeares as shee may after a Fine levyed by the Baron this doth not take away the future barre of the issue and if shee enter not within 5. yeares shee also is barred Baron tenant in taile the remainder to the Feme in taile makes a feoffement the Feme may enter after his death by this Statute but if the Baron suffer a recovery she shall not enter in the Case at barre the son may have a Formedon at the common Law and where before this Statute a Cuj in vita or Sur cuj in vita did lye entry is given by this Statute and not otherwise The Lord Staffords Case 7. Jacobi fo 73. THe Queene revertioner upon an estate taile grants the revertion to T. T. in taile upon condition is to have Praedictam reversionem in fee the condition is performed the Lord Stafford Tenant in taile levyeth a fine his issue is barred 1. Resolved that a condition of accruer may be annexed to a thing which lyeth in grant and to an estate taile as if Lessee for life be the remainder for life with condition of accruer to the first this is good and yet no Merger of estate 4. things are requisit to an accruer 1. A particular estate as the Foundation Ergo a Lease at will shall not be 2. The estate ought to continue in the Grantee untill accruer therefore if the Grantee alien and repurchase the condition is Tolled but Quaere if the Tenant alien upon condition which is broken if the fee shall accrew but grantee may grant part of his estate as if Lessee for life make a Lease for yeares he may performe the condition after so may Tenant in speciall taile after he is become tenant in taile after possibility c. so may the surviving jointenant and the heire of Tenant in taile An instant is sufficient to support an accruer as if the condition be if the Lessee be ousted Eo instante that the ouster is the fee accrueth but if Lessee for yeares accept a confirmation for life the condition is gone but it is not necessary that the estate of the grantor or Lessor continue because by his owne act he shall not defeate his grant 3. It ought to vest at the time of the condition performed or never and for that rather that it shall not vest at this time by performance of the condition the fee without office or other ceremony shall be devested out of the King 4. It is necessary that the particular estate and the condition be in one deede or two deeds delivered at the same time for in Law they are but one grant and by the condition performed he had fee from the delivery Resolved Praedict reversionem signifies the reversion which the Queene had Viz. That which depends upon both the estates taile and so was the intent also shee granted Omnia praemissa which maketh it cleere Resolved also that these words Will and Declare doe amount to a grant and are so used in Patents of Liberties and things to take effect in Futuro Tenant in taile the remainder in taile the remainder to the King Tenant in taile suffers a recovery this doth not barre the remainder in taile because the issue in raile is not barred and therefore the revertions and remainders in taile are preserved by the Statute of 34. H. 8. c. 20. Lastly Resolved if the reversion in fee had remained in the Crowne that the fine levyed by Ed Lord Stafford the Father had not barred the Lord that now is Notlyes Case 31. Eliz. com banco Wiat Wields Case 7. Jacobi 78. W. W. seised of Land to which he had common appurtenant aliens 5. acres to one who in replevin counts that he and those whose estate he had in the said 5. acres have had common there c. and good 1. Resolved although by purchase of part of the Land in which c. the common appurtenant is destroyed in all yet it is not so by alienation of part of the Land to which but all remaines without damage to the Tenant of the Land 2. That the pleading of it was sufficient Vinyors Case 7. Jacobi fo 80. ONe was bound to stand to the award of W. R. and revokes the submission the Obligee brings Debt 1. Resolved the Countermand is good for an authority Countermandable by the Law cannot by any way be made irrevocable 2. Although that the Plaintiffe doth not show that the Defendant had given notice to the arbitrator yet it is good because this is implied for without notice the revocation is void 3. The Obligation by the Countermand is forfeited because he doth not stand to c. when he Countermands it 2. By his owne act he had made the condition impossible Ergo the Obligation is single if one bindes himselfe to give License to carry Wood c. for a certaine time if he give it and disturbe him the Obligation is forfeited Sir Richard Pexhalls Case 7. Jacobi fo 83. SIr R. P. seised of Lands part whereof is houlden in Capite deviseth 100. Sheepe 10. Bullocks and 10. l. quarterly to one with clause of distresse and that the Grantee shall hold his Courts for his life for rent arreare for 2. yeares the grantee avoweth 1. Resolved a devise of rent out of all is good and taketh effect out of two parts and as to the third is void 2 The grantee shall have an estate for life in rent and so he shall if it be granted by Deede also by the Intent of the Devisor it appeares that the Grantee shall hold Courts and have 10. l. per annum for his wages and quarterly here had relation to rent onely because the word Et disjoyneth it from Sheep and Bullocks and judgement given for the Avowant Buckmers Case 7. Jac. fo 86. T. B. gave a House in Gavellkinde to M. his Eldest Daughter in taile the remainder of one Moity to J. a second Daughter in taile the remainder of the other Moity to K. a third Daughter in
in the Kings Bench betweene Frampton and Frampton Tr 2. Jacobi Quia non refert an quis intentionem suam declaret verbis an rebus ipsis vel factis and when he limits new uses he signifieth his purpose to determine the uses before The End of the Tenth Booke THE ELEAVENTH BOOK The Lord de la Wares Case 39. Eliz. in Parliament fol. 1. THOMAS la Ware great Grandfather of the now Lord in 3. H. 8. was summoned to the Parliament by Writ and by 3. E. 6. it was enacted that William the Father of the now Lord Thomas shall be disabled to claime any dignity during his life notwithstanding W. was called to Parliament by Q. Elizabeth and sat as Puisne Lord and dyed and Thomas now Lord sued in Parliament to the Q. to be restored to the place of his Great-Grandfather that is betwixt the Lord Barkly and the Lord Willoughby of Eresby and resolved that he should be restored for his Fathers disability was not absolute by attainder but onely temporary and personall during his life and the acceptance of the new Dignity shall not hurt the Petitioner the Father being then disabled and an Esquire onely so that when the old and new Dignity descend together the old shall be preferred which resolutions by the Judges was well approved of by the Lords Committees and after confirmed by the Queene Auditor Curles Case 7. Jacobi fol. 2. QUeene Elizabeth grants Officium unius Auditorum Curiae Wardorum to W. T. and W. C. for life eorum diutius viventi the K. grants it in reversion to I. C. I. T. I. C. dyeth the K. grants it in reversion to R. P. W. T. dyeth 1. Resolved the grant of the Office Vnjus auditorum c. is good to two and the survivor of them for 32. H. 8. c. 46. maketh the two Auditors one Officer and the word Vnjus is not numerative but denoteth the unity of the Office 2. In such a grant the words eorum diutius viventi are not void for otherwise by the death of one of them the interest of both would be ended but now the survivor remaines auditor and another shall be added to him and till another is added to him his voice in Court is suspended because by the Statute there must be two so if the K. grant by a Patent to one and by another to another this is good and untill the second is added the first hath no voice in Court 3. The Nomination of Auditors ought to be under the Great Seale 4. This Office cannot be granted in reversion 1. Because it is judiciall and one cannot be Judge in futuro and perhaps he was sufficient at the time of the grant but not when it takes effect 2. Although it be in part judiciall and in part ministeriall yet it is intire and although ministeriall Offices may be granted in futuro yet this cannot because it is inseparably judiciall also for the K. cannot grant the judiciall part to one or two and the ministeriall to others 3. If the grant be good as to the ministeriall part yet it shall not take effect now because one of the ancient Officers is living and if he should exercise the ministeriall part with the survivor there would be three Offices 5. He who surviveth remaines Auditor yet had no voice in Court untill the King add another to him 6. The grant to P. is void 1. Because in reversion 2. Because it reciteth a void grant to I. C. and I. T. as good and so the K. is deceived in his grant Sir John Heydons Case 10. Jacobi fol. 5. SIr J. H. brings trespasse against F. C. T. C. I. C. F. C. appeareth against whom the Plaintiffe declareth with Simul cum c. who pleads Non culp so doth T. C. which issues were tried severally and the issue betweene the Plaintiffe and F. C. was first tried and damages assessed to 200. l. and the other against T. C. 50. l. I. C. appeares and confesseth the Action a Writ of inquiry of damages is awarded but none issued judgement for the Plaintiffe and affirmed in Error 1. Resolved in trespasse against diverse who plead Non cul or severall Pleas which are found in all for the Plaintiffe damages shall not be assessed severally although one did more wrong then another because the trespasse is intire and the Act of one is the Act of all but if they be found guilty at severall times they may and if the Plaintiffe confesse the trespasse to be at severall times the Writ shall abate 2. If two trespassors pleade severally both shall be bound with the damages taxed by the first Jury and the other shall have an attaint although he be a Stranger to the issue because he is privy to the charge if one of them after appearance make default a Writ of inquiry shall be awarded to save a discontinuance but none shall issue because he shall be contributory to the damages taxed by the Jury who tryed the other issue and the other shall not be charged in damages assessed upon a Writ whereupon he can have no attaint but if the other issue be found against the Plaintiffe then it shall issue 3. Although there was a discontinuance against I. C. because in the common place where the Action was brought there is no continuance after a Writ of inquiry otherwise it is in the Kings Bench yet it is aided by the Statute of 32. H. 8. c. 30. 4. If two Juries give a Verdict at one time the Plaintiffe shall have judgement De melioribus damnis if he will but fiat nisi unica executio in trespasse against diverse who plead severall pleas triable by the same Jury if the Jury sever the damages all is vitious Priddle and Nappers Case 10. Jacobi fol. 8. THe Plaintiffe in a prohibition declareth that the Prior of M. was seised of 22. acres and of a rectory time out of mind c. untill the dissolution c. and so for all that time held them discharged of Tithes and conveys the said 22. acres from the King to himselfe and that the Defendant Proprietarius rectoriae praedict sued the Plaintiffe for Tithes the Defendant traverseth the prescription of discharge the Jury found that the Prior time out of c. was seised of the said 22. acres and of the advowson of the Rectory and did appropriate it by License 20. H. 8. the Incumbent then being living who dyeth and that the Prior held it united to the dissolution judgement for the Plaintiffe 1. Resolved although that every Church parochiall is supposed to be presentative yet the Plaintiffe may plead that the Prior c. time out of c. were Rectors of it for this amounts to so much that it was impropriated but he needs not shew how because before time of memory but the conclusion of the prescription of unity Viz. Ratione cujus he was discharged of tithes was not good for Land is not discharged of Tithes by unity
devise is good for two parts for the reasons reported in Loveyes Case 5. Although the consideration of advancing his Wife and their issues extends not to the Brothers yet the use is well raised to them because the Law implyeth a consideration and it is not to the purpose that they are found Brothers because it appeareth in the Deed. 6. For the Mannor of G. the estate tayle vanisheth by the death of Sir H. without issue male and therefore that estate is no cause to restraine the devise for any part but the reversion in fee is for a third part So resolved that the Plaintiffe shall have judgement for two parts Exceptions to the count and Visne 1. The Ejectione firmae is of Tithes without shewing the kinds of them Ergo not good for a certaine judgement and execution cannot be made 2. It may be it is in a modus decimandi for which an Ejectione firmae lyeth not 2. Capella is demanded which ought to be demanded by the name of a house 3. The Venire facias is not well awarded for it appeares that there are two B. one a Ville the other a Parish and W. a Ville in the Parish of B. and the Tithes are alleadged to be in W. in parochia de B. so the Visne must be out of B. and W. because there is the most certainty so that by reason of these exceptions no Judgement was entred but it was sayd that the Court of Wards where a Bill depends for this matter will take order for the possession accordingly Henry Pigots Case 12. Jacobi fol. 26. B. W. brings debt upon Obligation made to him when he was Sheriffe omitting the name of his Office but it was after interlined by a stranger the Defendant pleads Non est factum without Oyer of the Deed and judgement was given for the Plaintiffe 1. When a Deed is rased the Obligor may plead Non est factum 2. If a Deed be rased by the Obligee himselfe in a place not materiall it is voyd but not if done by a stranger except in a place materiall and here it was in a place not materiall because it appeareth not to the Court that he was Sheriffe If a Deed consist of diverse parts whereof one doth not depend upon the other and some of them are against Law the Deed is good in part but if any of them be rased it is voyd in all so if the Seale of one be debrused all is voyd See Matthewsons Case in the fifth Booke Alexander Powlters Case 12. Jacobi fol. 29. Indictment A. P. felleo animo burned a House in New-market whereby the greatest part of that Towne was burned Resol He shall not have his Clergy for this was felony by the Common Law and so haynous that he was not replevishable no more then for Treason as appeares by Westminst 1 cap. 15. but he shall have his Clergy at the Common Law for impediments to have Clergy were first disability to be a member of holy Church as a blind man or woman 2. Heresie 3. Infidelity as a Saracen or Jew but a man excommunicated or outlawed shall have it 5. Confession before the Statute of Articuli Cleri cap. 15. because he cannot make his purgation 6. High Treason or petty Treason before 25. E. 3. cap. 4. So of Sacriledge and of insidiatores viarum depopulatores agrorum See the Statute of 4. H. 4. cap. 2. but the Statute of 23. H. 8. cap. 1. taketh away Clergy where one is found guilty of burning of Houses but that is to be intended by verdict or confession for if hee stand mute or challenge more then he ought or be outlawed these are out of the Statute or if he commit Burglary and not Robbery he shall have his Clergy by 25. H. 8. cap. 3. hee who is found guilty of any of the sayd offences shall loose his Clergy and if he stand mute or challenge above his number but that extends to the principall onely in case of indictment and not to the accessory before the fact nor to appeales or approvements nor to outlary but these two Statutes were taken away by 1. E. 6. cap. 12. but 25. H. 8. was revived by 5. 6. E. 6. cap. 10. Obj. That the sayd Statute was not revived in all but as to stealing of Goods in one County and flying into another for so is the stile of the Act. 2. If it be revived this takes not away Clergy where one is found guilty by Verdict but the Statute of 23. H. 8. which is not revived But it was Reâ—olved that the intire Act is revived 1. Although the Statute of 5. E. 6. reciteth these offences solely and reviveth the Act as to Clergy touching such offences that shall be intended such in mischeife so Westminster 2. cap. 5. is expounded touching Infants having advowsons whether they be in ward or not and the stile is not to the purpose for many Statutes are of greater extent then the stile as 27. H. 8. of uses concerning Joyntures yet the preamble is of transferring uses into possession also otherwise these words and every clause c. shall be surplusage if it extend not to all the Act for there is but one clause in it which concerneth the offences in 5. 6. E. 6. also it is that every Article concerning Clergy as to such offences shall be revived and there is but one which concernes these offences and many times penall Statutes are taken by Equity as 8. H. 6. cap. 12. ordaineth that the imbezelling or withdrawing a Record whereby a Judgement may be reversed shall be Felony and by Equity making of a badd Judgement good is Felony so 25. E. 3. for killing of a Master extends to the Mistris 2. 25. H. 8. takes away Clergy where one is found guiltie by Verdict because it takes away if he stand mute or challenge c. in like manner as if he were guilty after the Lawes of the Land which are affirmative words And 4. 5. Phil. Mary cap. 4. takes away Clergy from the accessory before which they would not have done if they had not thought that it was taken away from the principall by the other Act. By 18. Eliz. cap. 7. Clergy is taken away in case of Burglary where hee is found guilty by Verdict confession or Outlary but if he be indicted at the Common Law and stand mute or challenge over c. he shall have it and not if hee be indicted by 23. H. 8. or 5. E. 6. of Burglary and put them who were in the House in feare with Robbery or upon 1. E. 6. without Robbery 4. 5. Phil. Mary takes away Clergy where one is accessory before to a Robbery in a dwelling House Ergo before that such an accessory shall have it Breaking of a House in the night without Robbery is no Burglarie and if he doth robb he shall have his Clergy if none were put in feare or that any of the Family and not
manner of inheritances grantable in him Page 298 VVhen the Kings Charter shall be taken to two intents good how it shall be expounded ib. A Retraxit must be in proper person and where one may appeare by Attorney Page 299 No writ of Errour lyeth after disclaimer it doth after Retraxit ib. The copiholder commeth in by custome paramount Page 300 Where seisin of a rent needeth not to be alleadged within forty yeares ib. If the Jury try an Issue they shall not try it again by new nisi prius Page 301 Where de Injuria sua propria is a good plea and where not Page 301 302 Who may certifie excommunication and when it rightly done ib. VVhen a power to make leases for 21. yeares or 3. lives rendring the ancient rent is well pursued Page 303 Baron and Feme tenants in speciall taile she is within 32. H. 8. c. 28. Page 304 To what things a condition of accruer may be annexed Page 305 Foure things requisite to an accruer ib. By purchase of part of the land in which c. common appurtenant destroyed Page 306 An authority is countermandable but then the bond is forfeited Page 307 A devise of rent out of all the Capite land is good out of 2. parts ib. VVhere one formedome lyeth upon two distinct gifts Page 308 In actions reall founded upon tort one writ lyeth upon severall Titles ib. In personall actions one may comprehend severall torts ib. The demaundant must make himselfe heire to the party last seized Page 309 A disturbance by parol is no breach of a condition Page 310 VVhere the Plaintiffe shall have judgement although his title destroyed ib. VVhat words with consideration amount to a bargaine and sale ib. An Inrollment not necessary where a chattell only passeth Page 311 VVhere a will inureth by way of executory devise ib. A man may devise an estate which he cannot doe by act executed ib. What shall be said a good awarde Page 312 Where the heire of a copy-holder beyond the seas shall be barred c. ib. Mulier prisne over the seas barred by the death of bastard eigne Page 313 What manner of services multiplyed and what extinct ib. Herriot custome by purchase of part is not extinct Page 314 What power the Censors of Physicians Colledge have ib. Where a count may be made good by the barre and that by Replication Page 316 Many things good by custome which cannot be by Charter ib. The improvement shall be employed to the former charitable uses Page 317 Nothing accompted administred but the money paid by Composition Page 318 Where the plaintiffe shall have judgement the Replication being evill ib. Fully administred pleaded the Jury find assetâ—s for part what judgement ib. The force of a Repeale and where the ordinary may commit administration Page 319 A difference where obligor is made administrator and where executor ib. A commoner in a forrest where he may enclose within the stat of 22. E. 4. c. 7. ib. If A. be in execution upon an erroneous judgement and escape and the judgement is reversed the action against the Sheriffe is gone Page 320 But if judgement and execution be against the Sheriffe before that it shall stand good against him ib. Tenant for yeares grants the next avoidance and surrenders how it worketh Page 321 Where a man abusing his License hee shall be Trespasser ab initio ib. Tender of sufficient amends for damage feasant when good Page 322 What is barred by a Release of diâ—…ctions Quarrells Suites c. ib. What Errors in a Record are amendable much good matter Page 324 325 See there ten Misprisions not yet remedied Page 326 Cases in the Court of Wards Where Collusion may be averred to defraud the King of Wardship ib. The King shall have no wardship where there is no heire Page 327 Where a Patent shall he good Quacunque via data ib. If the first Melius inquirendum be good no other shall issue Page 328 To what severall times an Office shall have relation ib. A sale of Chattells after judgement Bona is good not after Execution Page 329 A Bargaine and Sale by the heire after livery tendered is good ib. The Heire Knighted in the Life of the Father who dyeth the Heire tenders livery the mean rates are saved ib. Where the King shall have his third part out of the whole Page 330 THE NINTH BOOKE WHere a subsequent Indenture may direct uses in a precedent recovery Page 331 Where an averrment of other uses may be made ib. A common essoyne is allowable in Dower Page 332 In a Writ of Dower who may plead deteinment of Chartars Page 333 The Beasts of the Termor are distreined and an avowry made upon a meere Stranger what remedy for the Termor Page 334 No distresse for damage feasant if the Cattell be chased out ib. What ancient Franchises ought to have allowance Page 335 What priviledges are extinct if they returne to the Crowne ib. Where the Tenure and where the seisin is traversable Page 336 A difference when one Executor refuseth and when all doe Page 337 They can bring no actions before probate Page 338 What power the Ordinary hath over the goods of the intestate ib. See 21. H. 8. c. 5. touching granting administrations Page 339 The grant of the Stewardship of the Mannor of D. good without naming the County where it lyeth ib. Where such a Grantee may make a Deputy without expresse power Page 339 Where Non user is a forfeiture of an Office Page 340 What Writs Vi armis are good Causa causans and Causa causata ib. What words amount to a Release Page 341 If it appeare that the Nusans is to the damage of the Plaintiffe he needs not shew it he may abate the Nusans if he will ib. Westm 2. c. 24. extends not to the Alienee of the alienee ib. How conspirators may be punished before acquitall Page 342 Conspiracies punishable before Execution must have foure incidents ib. What Act shall be said to be a Nusans as a Lime-pit c. Page 343 What things requisite to convict a man of Libelling ib. A man needs not to shew that which lyeth not properly in his notice Page 344 Much noteable matter touching Indictments and a Serjeants duty Page 344 c. Commissioners to examine witnesses are not bound strictly to the Letter Page 346 What the duty of a Commissioner is and how he must demeane himselfe Page 347 Whither a Feme Covert be within the Sâ—… of Westm 2. c. 35. ib. What Marriage is within that Statute Page 348 A surrender made by a Copy-holder by Letter of Attorney is good ib. What authorities may be Executed by Attorney ib. VVhere the Act must be done in the name of the authorizor Page 349 VVhere an accord is a good plea and what is requisite thereunto Page 349 350 VVhat Act shall be adjudged murder Ex eventu Page 351 VVhere an Attornement shall bind an Infant ib. An action of the Case
Baspoles Case 7. Jac. fo 97. F. And B. put themselves in Arbitrament for all demands Suites so as the aforesaid award be delivered in Writing c. at the Feast of Saint James the Arbitrator awards that B. shall pay 22. l. to F. B. refuseth to pay F. brings Debt upon the bond to stand to the award and good 1. Resolved that the award was of both parts for the one was to pay money and the other to discharge the Debt 2. Resolved that whereas the Plaintiffe saith that the award was made De premissis which untill the contrary be shewed shall be intended of all when the submission is generall an award of part is good for otherwise the parties may conceale one thing and make the award void but if it be of diverse things in speciall Ita quod arbitrium fiat de premissis an award of part is voyd but good without such conclusion so if two of one part and one of the other part submit themselves arbitrament betweene one of the one part and another of the other part is good Sir Richard Lechfords Case fo 99. TEnant by copy in fee where there is a custome that the heire after the death of his auncestor within three Courts and Proclamations made shall be barred if he claimed not dyes his heire beyond the Seas untill three Courts and Proclamations passe and returnes and claimeth to be admitted he is not barred no more then by Non-claime upon a fine Ergo this custome shall be construed if he be within the realm of full age c. but if he goe over the seas after the death of his auncestor he shall be barred as in case of a fine 2. Resolved although he was not in the Kings service this is not to the purpose because by intendment he cannot have notice But a Mulier puisne over the Seas shall be barred by the dying seised of the Bastard Eigne for the right of the Mulier is barred and the Bastard is made Mulier although that a discent of the disseisor of a rent or thing which lyeth in grant barreth not the disseisee yet if a Bastard eigne dye seised of it this barres the Mulier If two Daughters whereof one is a Bastard eigne enters and dyes before or after partition the Mulier is barred Otherwise if two Daughters and one of them had no collour of partition if Bastard eigne dye in the life of his Father having issue who enters after the death of the Father and dyeth seised having issue Quaere if the Mulier be barred mulier is barred by discent before entry of the Sonne of the Bastard eigne as if issue be in Ventre sa mere or the Wife of the Bastard indowed John Talbots Case 7. Jaco in Second deliverance fo 102. LOrd and Tenant by Homage Fealty and Herriot service of 50. acres the Tenant infeoffeth the Lord of three acres and after infeoffeth the Plaintiffs father of three other acres parcell c. who dieth the Lord distreineth for Herriot the Plaintiffe brings replevin and good 1. All intire services to render an intire Chattell of profit or pleasure by alienation of part shall be multiplied and by purchase of part by the Lord extinct 2. Personall services for the publique good which are intire as Chivalry Homage and Fealty shall be multiplyed and not extinct 3. Other personall services as Butler Sewer c. shall not be multiplied but shall be exinct So of a personall office and mannuall labour 2. There is no diversity betweene an intire Chattell be it annuall or not as if it be to render a Horse every five yeare by purchase of part it shall be extinct 3. If the Father of the Plaintiffe had been first infeoffed and then the Lord the Herriot had remained because there the Father of the Plaintiffe held by a severall Herriot before the Lord was infeoffed 4. But Herriot custome by purchase of part is not extinct Doctor Bonhams Case 7. Jacobi fo 114. THe President and Censors of the Colledge of Physitians in L. by colour of Letters Patents of H. 8. and the Statutes of 14. H. 8. and 1. Mar. fined and Imprisoned Doctor Bonham for practising of Physicke in L without their allowance the fine to be paid to them and also for contempt made to the Colledge whereupon he brings false imprisonment and adjudged for the Plaintiffe 1. Whither a Doctor of one University or other be within the act 2. Admitting that he is whither he be within the exception in 14. H. 8. Justice Daniell held that such a Doctor was not within the body of the Act and if he were yet he is within the Exception but Warburton econtra for both points Cooke spake not to them but they all agreed that the Action was maintainable for two other points 1. Whither the Censors have power to fine and imprison 2. Admitting that if they have pursued it The Censors have no power in this case to imprison the Defendant for they have no power to punish by fine and Imprisonment those who practise without their license but those practisers who misadminister physick 1. Because the clause that none shall practise without their License and the clause which giveth to them the said power are distinct clauses 2. The first clause imposeth another penalty and 5. l. every moneth that he practiseth but leaveth the evill administration of Physick to be punished by the Colledge because this is uncerteine 3. To make one punishable by the first Branch he ought to practise by a moneth otherwise it is by the second 4. By this way they shall be both Judges and parties in one cause 5. If Doctor B. shall be punished by 5. l. by the moneth and also at their pleasure he will be often punished for one offence 2. Admitting that they had power yet they have not pursued it 1. Because the President who hath no power joyned with them 2. The fine was imposed for not appearing before the President and Censors and the President had no power 3. Halfe of the fine belongs to the King and here all is to be paid to them 4. The Imprisonment ought to be presently as upon the Statute of W. 2. cap. 12. 5. their authority being by Patent and Statute their proceedings ought not to be by Paroll and the rather because they claime authority to fine and imprison 6. It shall be taken strict because against the liberty of the Subject therefore before 1. Mar. the Gaoler was not bound to receive them and this doth not inlarge their power but that the Gaoler shall forfeite double the Amerciament if he refuse Admitting the replication void although that the Colledge demurre upon it yet the Plaintiffe shall have judgement because in the barre the Defendants have shewed that they have imprisoned him without cause for upon all the pleading it appeareth that he had cause of action but if a barre be insufficient and by the replication it appeares that the Plaintiffe had no cause